# Petition — Taylor v. Howard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1200%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1147 ## Text f on upreme 82-858 FILED NOV 2m ed? ALEXANDER 8 STEVAS, Jute Supreme Court of the United States OctosBer TERM, 1982 WAYNE N. HCWARD and MICHAEL E. TRAUSCHT, Petitioners and Cross-Respondents, V. WALTER ROBERT TAYLOR, Respondent and Cross-Petitioner. CROSS-PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT JOHN C. McMURRY 625 N. W. 13th Street Oklahoma City, Oklahoma 73103 (405) 528-3008 Counsel for Respondent and Cross- Petitioner, Walter Robert Taylor November, 1982 QUESTIONS PRESENTED FOR REVIEW 1. Is the “color cf state law” requirement of 42 U.S.C. § 1983 satisfied by the “state action” of a state court’s or- dering violation of a citizen’s First and Fourteenth Amend- ment rights? 2. In ascertaining what is and is not “state action”, is state court action enforcing racially restrictive covenants distinguishable from state court action committing an adult citizen to the custody of another to be “counseled”, “ex- amined” and “treated” and his will? 3. Dees the history of 42 U.S.C. § 1983 indicate that it should be applied to prevent the use of state courts to injure citizens and that it should be applied to enforce pro- visions of the Constitution against all state action, whether legislative, executive or judicial? 4. Is the action cf ccnspirators in using a state court “temporary guardianship” order to take and retain custody of an adult citizen to abuse him mentally and to force him to change his religion and lifestyle, “misuse of power, pcs- sessed by virtue of state law and made possible only be- cause the wrongdoer is clothed with authority of the state”? 5. Is the power and authority stated in and exercised under a state court “temporary guardianship” order pro- viding for confinement, “counseling”, “examination” and “treatment” of an adult citizen, “power possessed by vir- tue of state law and made possible only” as a result of “being clothed with authority of the state”? 6. Is such action (Questions 4 and 5) merely the action of private individuals akin to filing a complaint, testifying at trial and being on the winning side of a law- 33 suit, or is it the exercise of apparent authority and power of the state in the form of the “temporary guardianship” order? 7. Do private citizens have the apparent authority to confine, “counsel”, “examine” and “treat” another adult citizen against his will, or is such apparent authority only exercisable through color of law? 8. Is the action of private persons in confining, “coun- seling”, “examining” and “treating” another citizen against his will pursuant to a court order so impregnated with governmental character as to become subject to the con- stitutional limitations placed upon state action? 9. If a state court proceeding is a nullity, is there “color of law” under 42 U.S.C. § 1983 when conspirators misuse the state judicial process with the specific intent of depriving a citizen of his liberty without due process, equal protection of the laws and other rights guaranteed by the Constitution? The parties in the United States Court of Appeals for the Tenth Circuit were: Walter Robert Taylor, appellant, and Kevin M. Gilmartin, Michael E. Trauscht, Wayne N. Howard, The Freedom of Thought Foundation, Inc., Jo- seph Alexander, Esther Alexander and Gary Scharff, ap- pellees. It is urged by Petitioners that all of these parties have an interest in the filing of their petition. * TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW PARTIES _. — TABLE OF AUTHORITIES OPINIONS BELOW W JURISDICTION STATUTORY PROVISION INVOLVED STATEMENT OF THE CASE REASONS FOR GRANTING THE WRIT 0. I. The Court of Appeals decision, while correctly holding that there was “state action” in the dep- rivation of rights secured by the First and Four- teenth Amendments to the Constitution, conflicts with applicable decisions of this Court in finding that the “state action” was not taken under “color of state law” 1 II. The decision of the Court of r conflicts with applicable decisions of this Court because it incorrectly found an absence of “color of law”, notwithstanding a misuse of power possessed by virtue of state law and made possible only be- cause the wrongdoer was clothed with the au- e III. The decision of the Court of Appeals that Defen- dants did not act under color of state law” con- flicts with applicable decisions of this Court be- cause the involuntary “counseling”, “examining” and “treating” of an adult is so impregnated with PAGE 9 m 10 13 TABLE OF CONTENTS CONTINUED IV. —1v— governmental character as to be subject to consti- tutional limitations The Court of Appeals holding that Defendants did not act “under color of state law” where otherwise private individuals misused a state ju- dicial proceeding which was a nullity for the. purpose of effecting constitutional deprivations is incorrect and involves an important question of federal law which has not been, but should be, 3 — CONCLUSION —ů — CERTIFICATE OF SERVICE follows Cross-Petition. APPENDIX — District Court’s July 8, 1980 order PAGE(S) 15 16 18 la -—V— TABLE OF AUTHORITIES Cases PAGE(S) Addington v. Texas, 441 U.S. 418 (197999 16 Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) 10 Bottone v. Lindsley, 170 F 2d 705 (10th Cir. 1948), cert, denied, 336 U.S. 944 (1949) ß 16 Evans v. Newton, 382 U.S. 296 (19660 15 Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1973) 10, 15 Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) ...._ 14 Jackson v. er Edison Co., 419 U.S. 345 (1974) 8 = Lugar v. Edmondson Oil Co., 102 S.Ct. 2744 (1982) 10, 12 McIntosh v. Dill, 86 Okl. 1, 205 P. 917, cert. denied, 260 U.S. 721 (1922) = „„ Monroe v. Pape, 365 US. 167 ( 1961) — 13 Mullane v. Central Hanover Bank & Trust Co., 399 I. .. 17 Pennoyer v. Neff, 95 U.S. 714 (18793) — 17 Shelley v. Kraemer, 334 U.S. 1 (1949 11 Supreme Court of Virginia v. Consumers Union, 446 .. ͥ e United States v. Classic, 313 U.S. 299 (19417775 13 Virginia, Ex Parte, 100 U.S. 339 (18800 12 Constitutional Provisions United States Constitution: fl ES Fourteenth Amendment i, Statutes Pia) )) 28 U.S.C. 5 1331 AUTHORITIES CONTINUED 28 U.S.C. § 1332 i 28 U.S.C. § 1343(1) 28 U.S.C. § 1343(3) 42 U.S.C. § 1983 i, ii, 1, 2, 3, 6, 7, 8, 12, 13, 18 42 U.S.C. § 1985 eee FE Rules Sup. Ct. R. 19.5 — 2 1 In the Supreme Court of the United States Octoper Term, 1982 WAYNE N. HOWARD and MICHAEL E. TRAUSCHT, Petitioners and Cross-Respondents, V. WALTER ROBERT TAYLOR, Respondent and Cross-Petitioner. CROSS-PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Walter Rebert Taylor, Respondent and Cross-Peti- tioner, prays that, in the event a writ of certiorari should issue to the United States Court of Appeals for the Tenth Circuit to review that part of its July 30, 1982 judgment which reversed the Trial Court's December 30, 1978 and December 29, 1979 orders granting partial summary judg- ment against Respondent and Cross-Petitioner and dismis- sing his claim based upon 42 U.S.C. § 1985, then in such event Respondent and Cross-Petitioner prays that a writ of certiorari issue to the United States Court of Appeals for the Tenth Circuit to review that part of its July 30, 1982 judgment which affirmed the Trial Court’s December 30, 1978 and July 8, 1980 orders granting partial summary judgment against Respondent and Cross-Petitioner and dis- missing his claim based upon 42 U.S.C. § 1983. * The December 30, 1978 order of the United States Dis- trict Court for the Western District cf Oklahoma which granted partial summary judgment against Respondent and Cross-Petitioner dismissing his claim based upon 42 U.S.C. § 1983 is reproduced in the Appendix to Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit (“Appendix to Petition”) filed by Petitioners and Cross-Respondents Wayne N. Howard and Michael E. Trauscht. The July 8, 1980 order of the United States Dis- trict Court for the Western District of Oklahoma granting partial summary judgment against Respondent and Cross- Petitioner dismissing his claim based upon 42 U.S.C. § 1983 is reproduced in the Appendix to this Cross-Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit. The opinion of the United States Court of Appeals for the Tenth Circuit which affirmed those orders granting partial summary judgment against Respondent and Cross-Petitioner on his 42 U.S.C. § 1983 claim is reproduced in the Appendix to the Petition filed by Petitioners and Cross-Respondents. It has not yet been reported in the official reporter. JURISDICTION The judgment of the United States Court of Appeals for the Tenth Circuit sought to be reviewed is dated and was entered July 30, 1982. Respondent and Cross-Petitioner relies upon Sup. Ct. R. 19.5. Petitioners’ petition for cer- tiorari was received by counsel for Respondent and Cross- Petitioner October 21, 1982. The statutory provision be- lieved to confer on this Court jurisdiction to review the judgment in question is 28 U.S.C. § 1254(1). * STATUTORY PROVISION INVOLVED United States Code, Title 42 Section 1983: “Every person who, under color of any statute, ordi- nance, regulation, custom, or usage, of any S ate or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Con- stitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress.” STATEMENT OF THE CASE Plaintiff and Cross-Petitioner here is a monk who re- sides at an Old Catholic Monastery in a suburb of Okla- homa City. He was taken against his will from his mona- stery by Oklahoma County Sheriff's Deputies to a hearing before the District Court of Oklahoma County, State of Oklahoma, for a “temporary guardianship” hearing July 15, 1976. At the time he was 21 years old. Defendants sought Plaintiff's removal from his monastery in order that he could be “deprogrammed”, a process which involves use of “confrontative” techniques of “counseling” with the goal of the “deprogrammee’s” renunciation of his religious be- liefs. On July 14, 1976, lawyers for the applicant in the “temporary guardianship” proceeding conferred with the Associate District Judge to whom the application was even- tually presented, Judge John A. “Tony” Benson, who then contacted the Probate Judge and requested that he be al- lowed to hear the matter. The “temporary guardianship” — proceeding was then filed. Judge Benson then conducted a hearing July 15, 1976, without notice to Plaintiff, and wholly in Plaintiff's absence which culminated in Judge Benson’s ordering the Plaintiff taken into custody. Judge Benson had decided to order that a temporary guardian of Plaintiff's person be appointed so that it could be de- termined if Plaintiff were under the influence of telig- ious cult. Judge Benson stated that he wanted the Plain- tiff taken into custody “so that [Plaintiff] could be given notice of a [permanent] guardianship hearing. Upon Plaintiff's being taken to the Oklahoma Court, his counsel of choice was excluded from the hearing, and at the close of the “temporary guardianship” hearing, the same day Plaintiff was picked up by sheriff's deputies, Judge Benson, though finding that Plaintiff appeared “nor- mal in every respect”, formally entered an “Order Ap- pointing Temporary Guardianship of the Person” because, according to Judge Benson: * the right of [Plaintiff's] father and . . family to know [Plaintiff] decided . . . to spend the rest of [his] life away frcm them secluded in a monastery . . . probably overrides any individual right [Plain- tiff} might possibly have on a temporary basis to be free from . . . custody.” The July 15, 1976 order provided: “1. Notice of the time and place of hearing is not required. 2. Dr. Walter Taylor is appointed the temporary Guardian of the Person of Petitioner's child, to-wit: Walter Robert Taylor and that temporary Letters cf Guardianship issue. * 3. The Temporary Guardian of the person shall have power to: (a) take said prcposed ward into Peti- tioner’s perscnal custody to have proposed ward coun- selled, examined, and treated by persons including, but nct limited to physicians, psychiatrists, psycholo- gists, social workers and lay persons; (b) to keep said ward in Petitioner’s custody, even in the event said ward wishes to leave said custody; and (c) such further powers as are necessary to exercise those above granted. 4, Further hearing in this matter will be held at August 13, 1976 at 3:00 P.M. at which time the ward is directed to show cause if any the ward has, why the Petitioner, Dr. Walter Taylor should not be ap- pointed permanent Guardian of the ward's person. On authority of Judge Benson's “temporary guardian- ship” order (hereafter “Judge Benson's Order”), Plaintiff was taken that same day, July 15, 1976, from Oklahoma City, Oklahoma, to Akron, Ohio. He was held for approxi- mately one week in Akron where he was kept at a motel under constant guard. There he underwent “deprogram- ming”: (1) “deprogrammers” yelled at him constantly; (2) they kept fresh “deprogrammers” yelling at him by switching off in crews; (3) they said they would have him tracked down by the state patrol if he escaped, and that they would have him thrown in jail and “deprogrammed” in jail; (4) the “deprogrammers” threatened to have the police close down Plaintiff's monastery, to have the “temp- orary guardianship” made permanent and have the “de- programming” continue indefinitely, to have Plaintiff com- mitted to a mental institution and to beat him; (5) he was deprived cf sleep and by innuendo he was told that he atten would be subjected to shock treatment; (6) he suffered severe gastritis, diarrhea and abdominal cramping, and when he complained, the “deprogramming” seemed to in- tensify; (7) they threw cold water on him, shined a light in his eyes, tore his monastic clothes off him, and cut his hair and beard; (8) they told him they called friends and religious leaders from a list Plaintiff had given them of people who would vouch for him, and they stated that the friends reported his religion was not legitimate. The “de- programmers” indicated the pressure would cease if Plain- tiff would renounce his religion. July 22, 1976, the District Court of Oklahoma County, acting through a different judge than Judge Benson, en- tered an order declaring Judge Benson's Order void ab initio which commanded Plaintiff's return to Oklahoma City. July 23 or July 24, 1976, Plaintiff was taken from Akron to Phoenix, Arizona, where he was held, still under guard, for the “rehabilitation” phase of the “deprogram- ming”. He escaped July 31, 1976, and returned to Okla- homa City. Plaintiff brought the instant action against the “de- programmers”, his parents and brother seeking $300,000.00 compensatory and $3,000,000.00 punitive damages. Juris- diction was based upon 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity of citizenship), 28 U.S.C. § 1343 (3) and 28 U.S.C. § 1343 (1) (civil rights). Pursuant to agreement Plaintiff’s parents and brother were dismissed prior to trial. Plaintiff sought relief on the basis of a civil conspiracy and specific legal theories which included vicla- tion of civil rights under 42 U.S.C. §§ 1983 and 1985(3), obstruction of justice under 42 U.S.C. § 1985(2), intentional 2 infliction of emotional distress, false imprisonment and as- sault and battery. He stated in his Complaint that “De- fendants conspired to and did, under colcr of law deprive Plaintiff of liberty . . . to ccercively induce an alteration in Plaintiff’s religious beliefs and practices”, and that De- fendants acted “under color of law through use of the ju- dicial system, court orders and actions of the Sheriff's off- ice... .” Plaintiff did not allege that either Judge Benson or the Sheriff’s deputies who arrested him were co-con- spirators of Defendants. The Trial Court granted partial summary judgment against Plaintiff dismissing his 42 U.S.C. § 1983 count on the basis that the requisite color of state law was not pres- ent. It granted partial summary judgment against Plaintiff dismissing the 42 U.S.C. § 1985 (3) count because it con- cluded that Plaintiff’s action did not allege deprivations which would give rise to Congressional authority to reach private ccnspiracies. It granted partial summary judgment against Plaintiff dismissing his 42 U.S.C. § 1985(2) count on the basis that a source of Congressional power to reach the private conspiracy alleged could not be identified. Trial of the action was to a jury. At the close of the evidence the court directed a verdict against Plaintiff on his false imprisonment claim on the basis that Judge Ben- son’s Order was a “proper” order. The court also directed a verdict against Plaintiff on the intentional infliction of emotional distress claim, holding that the court was re- quired in the first instance to determine whether Defen- dants’ conduct was so “extreme” and “outrageous” as to permit recovery, and in the instant action, reasonable minds * could not differ: Defendants’ conduct was not so ex- treme” and “outrageous” as to permit the question to be submitted to a jury. The case then went to the jury solely on the theory of conspiracy to assault and batter. The jury returned a verdict in favor of the Defendants and against Plaintiff, and the court entered judgment on the verdict. Plaintiff perfected an appeal to the United States Court of Appeals for the Tenth Circuit which, by opinion dated July 30, 1982, reversed the Trial Court’s grant of summary judgment and the Trial Court’s directed verdicts and judg- ment on jury verdict, except the Trial Court’s dismissal of Plaintiff's claim based upon 42 U.S.C. § 1983. The Tenth Circuit held that “The order dismissing the § 1983 claim must be affirmed.” While holding that Plaintiff's Complaint alleged a conspiracy to induce the State to violate his First and Fourteenth Amendment rights, the Court of Appeals concluded that there was no action taken under color of state law because the State of Oklahoma had merely fur- nished a forum to private litigants. Defendants then sought review by this Court of the Tenth Circuit’s reversal of the Trial Court’s grant of summary judgment dismissing Plain- tiff's 42 U.S.C. § 1985 claims. a This Cross-Petition should be granted because the United States Court of Appeals for the Tenth Circuit has decided a federal question in a way which conflicts with applicable decisions of this Court and because the Court of Appeals has decided an important question of federal law which has not been, but should be, settled by this Court. The Court of Appeals’ decision, while correctly holding that there was “state action” in the deprivation of rights se- cured by the First and Fourteenth Amendments to the Con- stitution, conflicts with applicable decisions of this Court in finding that the “state action” was not taken under “color of state law”. The decision of the Court of Appeals conflicts with applicable decisions of this Court because it incorrectly found an absence of “color of state law”, not- withstanding a misuse of power possessed by virtue of state law and made possible only because the wrongdoer was clothed with the authcrity of the State. The decision of the Court of Appeals that Defendants did not act under “color of state law” conflicts with applicable decisions of this Court because the involuntary “counseling”, “exam- ining” and “treating” of an adult is so impregnated with governmental character as to be subject to constitutional limitations. The Court of Appeals holding that Defendants did not act under “color of state law” where otherwise pri- vate inaividuals misused a state judicial proceeding which was a nullity for the purpose of effecting constitutional deprivations is incorrect and involves an important ques- tion of federal law which has not been, but should be, settled by this Court. * I. THE COURT OF APPEALS’ DECISION, WHILE COR- RECTLY HOLDING THAT THERE WAS “STATE AC- TION” IN THE DEPRIVATION OF RIGHTS SECURED BY THE FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION, CONFLICTS WITH APPLI- CABLE DECISIONS OF THIS COURT IN FINDING THAT THE “STATE ACTION” WAS NOT TAKEN UN- DER “COLOR OF STATE LAW”. Although finding that Plaintiff properly alleged that his First and Fourteenth Amendment rights were violated through “state action”, the Circuit Court held that the “state action” was not taken under “color of law”. Slip Opinion at 18-19, 26-32. That holding conflicts with ap- plicable decisions of this Court. A 42 U.S.C. § 1983 claim embodies at least two ele- ments: (1) deprivation of a right secured by the Consti- tution and laws of the United States; (2) “under color of law”. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978), Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970). Al- though this Court held in Flagg Bros., Inc. v. Brooks, 436 U.S. at 156-57, that action taken under color of state law” does not entail deprivation of a right secured by the Con- stitution and laws of the United States when there is no state action, this Court has never found absence of “color of state law” where there was “state action” in the form of governmental deprivation of a First or Fourteenth Amend- ment right. On the contrary, “. . . conduct satisfying the state action requirement of the Fourteenth Amendment satisfies the statutory requirement of action under color of state law. Lugar v. Edmondson Oil Co., 102 S.Ct. 2744, 2753, n. 18 (1982). * Although holding that there was no color of law”, the Circuit Court held: „. . . [A]lthough . . [Plaintiff] dces nct claim that the state conspired to deprive him of his constitu- tional right, he does claim that the state unwittingly deprived him of those rights when the Sheriff’s depu- ties forced Taylor to appear before Judge Benson under no apparent statutory authority and when the state court appointed his father temporary guardian without any jurisdiction, whereby he was illegally delivered over to the defendants and was deprived of his freedom of association and his freedom to pur- sue his religious beliefs. We must hold that a private conspiracy, if this be such, motivated by a class-based, invidiously discriminatory animus, to induce the state to violate one’s first and fourteenth amendment rights is remedied by §§ 1985 (2) and (3).” Emphasis supplied. Slip Opinion at 31-32. The Tenth Circuit’s analysis below that there was “state action” is consistent with this Court’s conclusion that judicial enforcement of racially restrictive covenants constitutes Fourteenth Amendment “state action”: “The difference between judicial enforcement and non- enforcement is the difference between being denied rights . . . and being accorded full enjoyment of those rights on an equal footing.” Shelley v. Kraemer, 334 U.S. 1, 19 (1948). Plaintiff's deprivation of liberty, freedom of associa- tion and freedom of religion were caused by the exercise of a putative state right or conduct imposed by the State in the form of Judge Benson’s order. Defendants and Plaintiff’s “temporary guardian” »s authorized by, and act- 23 ing in accordance with, Judge Benson's order acted with state officials — Judge Benson and Oklahoma County Sher- iff’s deputies — or obtained significant aid from them. In conspiring with Plaintiff's “temporary guardian”, Defen- dants were thus “state actors”. See Lugar v. Edmondson Oil Co., 102 S.Ct. at 2754. The Court of Appeals’ conclusion that there was no action taken under “color of state law” because the State merely furnished a forum or allowed itself to be used by the conspirators conflicts with applicable decisions of this Court and is inconsistent with the legislative history of 42 U.S.C. § 1983. The Civil Rights Act of 1871 does not provide an exemption or “safe harbour” for state action through judicial process. To the contrary, all state action, whether executive, legislative or judicial, may be reached under 42 U.S.C. § 1983. Supreme Court of Virginia v. Con- sumers Union, 446 U.S. 719, 735, n. 14 (1980), citing Ex Parte Virginia, 100 U.S. 339, 346 (1880). One of the evils which was to have been addressed by 42 U.S.C. § 1983 was the use of state courts to harass and injure citizens. Id. 42 U.S.C. § 1983 dees not require that a judge be a conspirator as a prerequisite to relief for First and Four- teenth Amendment violations perpetrated under authority of a state court. Such a requirement would thwart the remedial purpose of the statute. That is the effect of the judgment of the Court of Appeals. Though finding “state action”, it held that there was no “color of law” contrary to this Court’s decision in Lugar v. Edmondson Oil Co., supra. The Tenth Circuit’s response to the pronouncements of this Court in Lugar v. Edmondson Oil Co. is that Lugar is —13— distinguishable because Plaintiff does not contend that the Oklahoma guardianship statute is constitutionally defective. Slip Opinion at 19-20 n. 3. That factual analysis is correct, but it does not effectively distinguish the rationale of Lugar because Defendants acted under putative state authority in the form of Judge Benson’s order which clearly authorized the constitutional violations. Plaintiff has specifically chal- lenged the constitutionality of Judge Benson’s order which facially provided state authorization for Defendants to “de- program” Plaintiff thereby violating his First and Four- teenth Amendment rights. II. THE DECISION OF THE COURT OF APPEALS CON- FLICTS WITH APPLICABLE DECISIONS OF THIS COURT BECAUSE IT INCORRECTLY FOUND AN AB- SENCE OF “COLOR OF LAW”, NOTWITHSTANDING A MISUSE OF POWER POSSESSED BY VIRTUE OF STATE LAW AND MADE POSSIBLE ONLY BECAUSE THE WRONGDOER WAS CLOTHED WITH THE AU- THORITY OF THE STATE. Action taken under “color of law” as prescribed by 42 U.S.C. § 1983 is defined as “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of the state. Monroe v. Pape, 365 U.S. 167, 184 (1961), United States v. Classic, 313 U.S. 299, 326 (1941). Defendants took and retained custody of Plaintiff under Judge Benson’s order for the purpose of forcing him to change his religion by means of mental abuse. The Dis- trict Court of Oklahoma County contemplated “deprogram- * ming” Plaintiff. As the Trial Judge observed: Judge Benson] knew what this was about, knew what was going to happen, had this presented to him, as it's in the record and his order says as much.” When Defendants took Plain- tiff for “deprogramming”, they misused power, “possessed by virtue of state law and made possible only” through the cloak of state authority in the form of Judge Benson’s order. The power and authority which Defendants exer- cised under Judge Berson’s order for confinement, “coun- seling“, “examination” and “treatment” of Plaintiff was “power possessed by virtue of state Jaw and made possible only” as a result of Plaintiff's father and guardian, De- fendants’ co-conspirator, “being clothed with authority of the state.” Plaintiff's temporary guardian”, Defendants’ co-con- spirator, possessed power by virtue of state law in the form of Judge Benson’s order. Guardianship powers are so identified with the State that since feudal times they have been viewed as an incident of sovereignty. Guardian- ship powers stem from the “royal prerogative” because the King as “father of the country” functioned as guardian of all persons under a legal or mental disability. “In the United States, the ‘royal prerogative’ and the ‘parens pat- riae’ function of the King passed to the states.” Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972); See McIntosh v. Dill, 86 Okl. 1, 205 P. 917, cert. denied, 260 U.S. 721 (1922). Defendants did not merely resort to the courts for the adjudication of a claim and win their case. They assumed the apparent power of the State in the form of Judge Benson’s order to force Plaintiff to change his religion. Private citizens do not have the apparent authority to con- — = fine, “counsel”, “examine” and “treat” another adult citizen against his will. Such apparent authority is only exer- cisable through color of law. III. THE DECISION OF THE COURT OF APPEALS THAT DEFENDANTS DID NOT ACT UNDER “COLOR OF STATE LAW” CONFLICTS WITH APPLICABLE DE- CISIONS OF THIS COURT BECAUSE THE INVOLUN- TARY “COUNSELING”, “EXAMINING” AND “TREAT- ING” OF AN ADULT IS SO IMPREGNATED WITH GOVERNMENTAL CHARACTER AS TO BE SUBJECT TO CONSTITUTIONAL LIMITATIONS. The action of private persons in confining, “counsel- ing”, “examining” and “treating” another adult citizen against his will pursuant to a court order is “so impreg- nated with governmental character as to become subject to constitutional limitations placed upon state action.” Cf. Evans v. Newton, 382 U.S. 296, 299 (1966) (private devise of realty in trust to a city for a “public” park for white people only). In order for nominally private action to be deemed a governmental function the nominally private conduct must fulfill a function “exclusively reserved to the state.” Flagg Bros., Inc. v. Brooks, 436 U.S. at 157-58, quot- ing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). Because Plaintiff's father was to perform a func- tion unlike an ordinary guardian, the governmental func- tion test was met. To restate the obvious, only the State can involun- tarily confine and “treat” an adult. The only way for an adult to be confined and “treated” is for the entity con- fining and “treating” to act as the government acts. Un- like the Flagg Brothers situation, there is not a variety of —16— ways to involuntarily confine and “treat” an adult. The function of involuntary confinement and treatment is that of the State. See Addington . Texas, 441 U.S. 418, 426 (1979). It is, and must be, exclusively the function of the state. IV. THE COURT OF APPEALS HOLDING THAT DEFEN- DANTS DID NOT ACT “UNDER COLOR OF STATE LAW” WHERE OTHERWISE PRIVATE INDIVIDUALS MISUSED A STATE JUDICIAL PROCEEDING WHICH WAS A NULLITY FOR THE PURPOSE OF EFFECT- ING CONSTITUTIONAL DEPRIVATIONS is INCOR- RECT AND INVOLVES AN IMPORTANT QUESTION OF FEDERAL LAW WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT. In examining whether misuse of the judicial process could ever be action under “color of law”, the United States Court of Appeals for the Tenth Circuit, speaking through the late Judge Murrah, stated in dictum: “It is conceivable that persons, either individually or acting in concert might so use the state judicial pro- cess as to deprive a person of his property without due process of law, or of equal protection of the laws, yet we are certain that to make out a cause of action under the Civil Rights Statutes, the State Court pro- ceedings must have been a complete nullity, with a purpose to deprive a person of his property without due process of law.” Bottone v. Lindsley, 170 F.2d 705, 707 (10th Cir. 1948), cert. denied, 336 U.S. 944 (1949). Obviously, the statement would apply with equal force to deprivations of liberty, free exercise of religion and freedcm of association. The question is one of first impression. 2 * When nominally private parties are allowed to so mis- use the judicial process, they are exercising power that ordinary private litigants do not possess. In such a case the state does more than merely furnish a forum to them. Where the state acts in the absence of all jurisdiction in complicity with nominally private litigants’ purpose of de- priving a citizen of constitutionally protected liberties and does order such deprivation, the state is no longer disin- terested. In such a case the state has become inextricably entangled in the nominally private defendants’ actions so as to transform them into state actors. As the Trial Court found: “Judge Benson knew what this was about, knew what was going to happen, had this presented to him, and it’s in the record and his order says as much.” The Trial Court further observed Judge Ben- sons]! . order was to separate. . [Plaintiff] from the sect, not let him communicate with the sect. That’s what the Judge intended and that’s what the order says.” When the State of Oklahoma took such action without any juris- diction [see Slip Opinion at 8-11, 13; see also Mullane v. Central Hanover Bank & Trust Co., 399 U.S. 306 (1950), Pennoyer v. Neff, 95 U.S. 714, 752 (1878)], it did not treat the proceeding as just another lawsuit where it merely furnished a forum. It became “interested” as a result of Judge Benson and Defendants’ radical departure from the ordinary judicial process in ordering Plaintiff's “depro- gramming”. The State of Oklahoma clothed Plaintiff's father and Defendants with its authority in a way that ordinary citizens never are. The fact that Judge Benson’s role may have been that of an ignorant participant in De- fendants’ scheme, as opposed to a purposeful participant * in the conspiratorial sense, does not disentangle the state's involvement. For these reasons Walter Robert Taylor, Respondent and Cross-Petitioner, prays that, in the event a writ of cer- tiorari should issue to the United States Court of Appeals for the Tenth Circuit to review that part of its July 30, 1982 judgment which reversed the Trial Court’s December 30, 1978 and December 29, 1979 orders granting partial summary judgment against Respondent and Cross-Peti- tioner and dismissing his claim based upon 42 U.S.C. § 1985, then in such event Respondent and Cross-Petitioner prays that a writ of certiorari issue to the United States Court cf Appeals for the Tenth Circuit to review that part of its July 30, 1982 judgment which affirmed the Trial Court’s December 30, 1978 and July 8, 1980 orders granting par- tial summary judgment against Respondent and Cross- Petitioner and dismissing his claim based upon 42 U.S.C. § 1983. Respectfully submitted, JOHN C. McMURRY 625 N. W. 13th Street Oklahoma City, Oklahoma 73103 (405) 528-3008 Counsel for Respondent and Cross- Petitioner, Walter Robert Taylor November, 1982 CERTIFICATE OF SERVICE The undersigned John C. McMurry, a member of the Bar of this Court and counsel of rec ord for Walter Robert Taylor, Respondent and Cross-Petitioner herein, hereby certifies that on the 19th day of November, 1982, he caused to be served the foregoing Cross-Petition for Writ of Cer- tiorari on all parties by mailing three copies thereof by First Class mail, postage prepaid, to each of their counsel of record, addressed as follows: Albert R. Vermeire Monbleau, Vermeire & Turley, P. C. 1510 Financial Center 3443 North Central Avenue Phoenix, Arizona 85012 John B. Hayes Looney, Nichols, Johnson & Hayes P. O. Box 468 Oklahoma City, Oklahoma 73101 William A. Johnson Sanders, Boone & Johnson 2200 Classen Boulevard, 4th Floor Oklahoma City, Oklahoma 73106 John C. McMurry --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1200%3A1. Public record. Not legal advice.