Petitioners Reply Brief — Pinckard v. Pinckard

IN THE

Supreme Court of the Hnited States

Ocroper Term, 1982

CAUSE NO, 82-1241

E. WAYNE PINCKARD, ET AL,

Petitioners

v.

KENNETH R. PINCKARD,

Respondent

PETITIONERS RESPONSE TO “RESPONDENT'S

BRIEF IN OPPOSITION”

EpMUND L, CoGBURN

Dow, Cocpurn & FrigpDMAN

2300 Coastal Tower

Nine Greenway Plaza

Houston, Texas 77046

(713) 626-5870

Attorneys for Petitioners

“"Aipns Law Driet Co, lnc-S000 Parkersburg—Houston, Teaas 17006—-21-0000

SUBJECT INDEX

RESPONDENT'S “REASONS FOR DENYING THE

WRIT” ARE FRIVOLOUS ......cscscseceeeeeenens

(a) The judgment sought to be reviewed is final for the

purposes Of this Court ...cccsccccnvccvccccccceens

(b) Regardless of whether or not the state courts did or

did not “expressly” pass on our federal questions, the

questions were in fact raised and the rul disposed

GE CROME ccccccccccccccccccccesseseeecccesesccces

(c) The Petition for Writ of Certiorari is timely, since

Petitioners acted diligently to secure review as far as

they could go in the state courts before turning to this

Honorable Supreme Court of the United States .....

(d) Petitioners did not waive any rights by their failure

to challenge a previous injunction ...... 6.66 6ce eens

(e) Only by the most procrustean torture of meanings can

Respondent even suggest that “pleadings, evidence and

law support the subject order.” 0.0.6.6 ccc eee eeues

SUMMARY coscccesecsssvcrssvevevvevscccvceseceees

CERTIFICATE OF SERVICE ......ccccseeceeeveees

LIST OF AUTHORITIES

CASES

American Railway E Co. v. he 263 U.S, 19 (1923)

Austin v, Keefe, 402 B, 418 (1GTE) vecccccccccccccess

Curtis Publishing Co. v. ‘Butts, 388 U.S, 130 (1967) ....

Nebraska Press . v. Stuart, 423 U.S, 1327 (1975) ...

oz

IN THE

Supreme Court of the Hnited States

OcTOBER TERM, 1982

CAUSE NO. 82-1241

E. WAYNE PINCKARD, ET AL,

Petitioners

Vv.

KENNETH R. PINCKARD,

Respondent

PETITIONERS RESPONSE TO “RESPONDENT'S

BRIEF IN OPPOSITION”

The Petitioners, E. Wayne Pinckard (“Wayne”), PBI

houston, Inc., formerly Pinckard Brothers Interests, Inc.

(“PBI”), W. Howard Smith, The Bradford Group, Inc.

(“Bradford”), Gene Phillips (“Phillips”) and Syntek

Corporation (“Syntek”), respectfully request that this

Court review the following as a response to “Respondent’s

Brief in Opposition”.

2

RESPONDENT’S “REASONS FOR DENYING

THE WRIT” ARE FRIVOLOUS

(a) The judgment sought to be reviewed is final for

the purposes of this Court.

It seems clear that violations of fundamental First

Amendment rights in the nature of prior restraint are

subject to review by this Honorable Supreme Court of

the United States even when they occur through pre-trial

orders or temporary injunctions, regardless of whether

or not such orders or injunctions are subject to ultimate

dissolution upon final trial. An example of this may be

found in Nebraska Press Asso. v. Stuart, 423 U.S. 1327

(1975), opinion by Blackmun, J., as Circuit Justice,

granting reapplication for a stay of an order restricting

pretrial coverage by the news media concerning alleged

sexual assaults upon and murders of six members of a

family. Justice Blackmun’s opinion points out that the

issue raised is “one that centers upon cherished First and

Fourteenth Amendment values; that the challenged state-

court order obviously imposes significant prior restraints

on media reporting; that it therefore came to (him)

‘bearing a heavy presumption against its constitutional

validity... .’”.

The opinion in Nebraska Press goes on to say:

Where, however, a direct prior restraint is imposed

upon the reporting of news by the media each pass-

ing day may constitute a separate and cognizable

infringement of the First Amendment. . . . To this

extent, any First Amendment infringement that oc-

curs with each passing day is irreparable . . . in

this sense, delay itself is a final decision. . .

3

. . » Still, the likelihood of irreparable injury to First

Amendment interests requires me to act... .

In organization for a better Austin v. Keefe, 402 U.S.

415 (1971), this Honorable Supreme Court of the United

States applied the same strict standards to a temporary

injunction infringing First Amendment rights by restrain-

ing the distribution of pamphlets, leaflets or literature

within a suburb. The opinion noted:

Any prior restraint on expression comes to this Court

with a “heavy presumption” against its constitutional

validity (citations omitted). Respondent thus carries

a heavy burden of showing justification for the im-

position of such a restraint... .

In short, with First Amendment rights involved, the

NLRB cases discussed by Respondent are irrelevant, to

the point of frivolity. Because of the daily loss of First

Amendment rights, the temporary injunction issued by

the trial is, in fact, a “final” judgment for the purposes

of the jurisdiction of this Court.

(b) Regardless of whether or not the state courts

did or did not “expressly” pass on our federal

questions, the questions were in fact raised and

the rulings disposed of them.

Respondent seems to suggest to this Honorable Court

that state courts or lower federal courts can, effectively,

discourage this Court from entertaining ju.isdiction over

serious denials of constituitonal rights by simply failing

to discuss or write on these questions when they are

raised. It is certainly true, that the Court of Appeals in

its three paragraph unpublished opinion, made no men-

4

tion of the federal questions. If lower courts can escape

review by simply omitting the tough legal questions from

thier opinions, then reversal will become rare indeed.

Whether or not precedent has been established should

not be the criteria for this Honorable Court, since, other-

wise, the door will therefore be opened wide for the

abuse of constitutional rights through the facile tactic of

ignoring them. It is our assumption that this Honorable

Court will treat this argument with the contempt which

it deserves.

(c) The Petition for Writ of Certiorari is certainly

timely, since Petitioners acted diligently to secure

review as far as they could go in the state courts

before turning to this Honorable Supreme Court

of the United States.

Respondent cites American Railway Express Co. v.

Levee, 263 U.S. 19 (1923), a case which holds exactly

the opposite of the position for which it is cited.

In fact, American Railway Express is almost on “all

fours” with our case. The suit was brought in a Louisiana

court, appealed to the Court of Appeals unsuccessfully

and then application was made to the Supreme Court

of Louisiana for Writ of Certiorari, “refused for the

reason that the judgment is correct”. This is almost

exactly the path followed in our case. The opinion of

this Honorable Supreme Court of the United States in

American Railway Express noted that a preliminary ob-

jection was “urged that the present Writ of Certiorari

was addressed to the Court of Appeals, and not to the

Supreme Court. . .”.

The opinion pointed out that “when the jurisdiction

was declined, the Court of Appeals was shown to be

5

the highest court of the state in which a decision could

be had”. On the other hand, this did not change the

time limitations because it was appropriate to apply to

the Supreme Court and was only when the Supreme

Court refused to take jurisdiction did the appellate time

limits begin running against the Petitioner with respect

to the Writ of Certiorari to the Supreme Court of the

United States. This is clearly set forth in the following

language on page 20 of the opinion:

. . . Of course, the limit of time for applying to this

Court was from the date when the Writ of Certiorari

was refused.

Surely, it is the height of frivolity to cite this case for

a proposition diametrically opposed to the principle upon

which it was decided.

(d) Petitioners did not waive any rights by their

failure to challenge a previous injunction.

Respondent suggests that Petitioners waived their First

Amendment rights by failing to object to an original in-

junction which, itself, likewise violated First Amendment

rights of Petitioners. In fact, under the Rules of Civil

Procedure of the State of Texas, Petitioners have every

right to move to dissolve an original temporary injunction

short of appeal which they determined to do. The Motion

to Dissolve the Original Temporary Injunction was the

pleading upon which a trial type hearing took place

which resulted in the issuance of the order of which we

complain. Contrary to the statement at page 4 of the

Respondent’s “Brief in Opposition”, the Petitioners did

“seek dissolution of the foregoing quoted portion” (in-

volving prior restraint), since their application for dis-

6

solution sought dissolution of the injunction as a whole.

(The whole, necessarily, includes its parts. )

Again, by the citation of Curtis Publishing Co. v. Butts,

388 U.S. 130 (1967), Respondent has cited a case which

holds to the contrary of the proposition for which it is

cited. In Butts the opinion states:

Where the ultimate effect of sustaining a claim of

waiver might be an imposition on that valued free-

dom, we are unwilling to find waiver in circum-

stances which fall short of being clear and com-

pelling ...

(e) Only by the most procrustean torture of mean-

ings can Respondent even suggest that “plead-

ings, evidence and law support the subject order.”

Apparently, the Brief suggests that an Application to

Enjoin Surveillance or Investigation is a sufficient plead-

ing to support an order enjoining Petitioners from divulg-

ing information regarding the personal deportment of the

Respondent. Such an argument, again, fails to rise above

the level of frivolity.

There is no pleading regarding “personal deportment”

in the Respondent’s “First Supplemental Application for

Temporary Injunction” and the personal deportment of

Respondent has no demonstrated relationship to the “trash

of Pinckard Development Corporation”.

From an evidentiary point of view, the closest that

Respondent can get to “personal deportment” is the fact

that the investigators were “told to go to the home of

Linda Applebaum, who was represented to such investi-

gators as the Respondent’s girlfriend”, along with testi-

7

mony that the investigators did in fact go to her home.

No where does the record reflect that any information

was developed by going to Linda Applebaum’s home and

there is nothing in the record concerning the results of

the investigation which reflects any information as to the

“personal deportment” of the Respondent. At page 5 of

the Brief, Respondent suggests that “surveillance of Re-

spondent’s friends or family and discussion of his personal

deportment, have nothing to do with this case . . .”.

Whether they do or do not, there was no evidence con-

cerning “discussion of his personal deportment” in the

record, no evidence of what such “personal deportment”

had consisted of, and no pleading in the record asking

for an injunction against discussion of “personal deport-

ment”.

The record does not properly support an injunction

against surveillance, since the record in no way reflects

that there was any abuse of any legally protected right

of Respondnt by the survillance in question. In fact, the

surveillance did uncover information that was helpful to

the Petitioners lawsuit. Regardless, discussion of personal

deportment was not shown by the record or pleadings

to be in any way related to the surveillance.

In fact, the trial court did abuse its discretion by

temporarily enjoining the exercise of First Amendment

rights without any justification shown by the record or

shown by the Brief of Respondent. There was no showing

that this order was necessary or even helpful in order

to “preserve a fair trial”. Comments about “harassment”

in the Brief are pure conjecture, without any evidence

to support them.

SUMMARY

The judgment complained of is a final one resulting

in daily and continuing violations and restraints on First

Amendment rights. The state courts did, in fact, pass on

Federal Constitutional questions raised by Petitioners re-

gardless of their discussion thereof. The Petition for Writ

of Certiorari is timely, having been filed less than ninety

days after the decision of the highest state court in which

a decision could have been had, the Supreme Court of

Texas, regardless of the fact that the Supreme Court of

Texas in fact rejected such decision, There was no waiver

of First Amendment rights which were diligently pursued.

The pleadings, evidence and law furnished no support

or excuse of any kind for the order of the trial court.

PREMISES CONSIDERED, THEREFORE, Petition-

ers pray for the Writ of Certiorari to be granted and the

order of the trial court overturned as violative of First

Amendment rights and for such other relief as may be

found proper by this Honorable Court.

Respectfully submitted,

Dow, CoGBURN & FRIEDMAN

Original Signed By

By: __ EDMUND L. COGBURN

EDMUND L. CoGBURN

2300 Coastal Tower

Nine Greenway Plaza

Houston, Texas 77046

(713) 626-5870

Attorneys for Petitioners

9

CERTIFICATE OF SERVICE

I, Edmund L. Cogburn, do hereby certify that a true

and correct copy of this Reply to Respondent's Brief in

Opposition was mailed to Michael T. Powell, Brill,

Brooks, Powell & Yount, 601 Jefferson Street, Suite 1060,

Houston, Texas 77002, attorney of record for Kenneth

R. Pinckard, Appellee and Respondent in this cause.

Signed this the <°@_ day of April, 1983.

Original Signed By

EDMUND L. COGBURN

EDMUND L. CoGBURN