Petitioners Reply Brief — Bouma v. Larry C. Iverson, Inc.

APR29 PAGE 4

i Office - Supreme Court, U.S

FILED

APR 25 1983

NUMBER 82-1625 ALEXANDER \. stevas.

SUPREME COURT OF THE CLERK

UNITED STATES OF

AMERICA

RALPH BOUMA and

MRS. RALPH BOUMA ON PETITION FOR

Petitioners WRIT OF CERTIORARI

FROM THE SUPREME

vs | COURT OF THE STATE

OF MONTANA

LARRY C. IVERSON, INC.

Respondent

PETITIONERS’ RELPY BRIEF

RALPH BOUMA JOHN ALBRECHT

Attorney Pro Se Attorney for

P.O. Box 220 Mrs. Ralph Bouma

Choteau, Mt. 59422 P.O. Box 193

Tel: (406) 466-5374 Choteau, Mt. 59422

Tel: (406) 466-2621

NUMBER 82-1625

SUPREME COURT OF THE

UNIi£D STATES OF

AMERICA

RALPH BOUMA and

MRS. RALPH BOUMA ON PETITION FOR

Petitioners WRIT OF CERTIORARI

FROM THE SUPREME

vs COURT OF THE STATE

OF MONTANA

LARRY C. IVERSON,INC.

Respondent

PETITIONERS' RELPY BRIEF

RALPH BOUMA JOHN ALBRECHT

Attorney Pro Se Attorney for

P.O. Box 220 Mrs. Ralph Bouma

Choteau, Mt. 59422 P.O. Box 193

Tel: (406) 466-5374 Choteau, Mt. 59422

Tel: (406) 466-2621

TABLE OF

I

TABLE OF CONTENTS

AUTHORITIES

INTRODUCTION

ARGUMENT

| a

It.

III.

The first decision of the

Montana Surpeme Court,

Appendix B, reported at 639

P. 2d 47, was not a "final

judgment" within the mean-

ing of Title 28 U.S.C. Section

1257. That decision and the

procedure leading to it may

be reviewed by the United

States Supreme Court.

The Petition for a Writ of

Certiorari is not barred by

res judicata or collateral

estoppel.

The payment of the damages award-

ed by the Montana Supreme Court

does not moot the question of

PAGE

IV.

ii

whether such damages were

awared in violation of due

process.

The Petition for a Writ of

Certiorari presents six

substantial federal questions.

The Supreme Court could grant

certiorari on any one of

them.

a. The Buyers were bound

by a prior court action ob-

tained by fraud to which they

were not a party. They were

not allowed to raise this

defense.

b. The Corporation failed

to answer Federal Question

Number 2.

c. The fact that the Buyers

were given a hearing on the

motion to disqualify Judge

Langen does not mean the fail-

iii

ure to disqualify him did not

violate due process.

d. The Montana Supreme

Court's deciding this case

violated due process.

e. The Montana Supreme

Court denied Ralph Bouma

due process of law by re-

fusing to allow him to

argue his case.

f. The Montana Supreme

Court denied the Buyers due

process of law by imposing

damages on appeal of

$500.00 without notice or

opportunity to be heard.

Conclusion

iv

TABLE OF AUTHORITIES

Campanella vs. Bouma (1967)

164 Mont. 217, 520 P.2d

1073

Country Club Tower Corp vs.

Tower Management (D.Mt.,

1967) 275 F. Supp. 468

Cromwell vs. County of Sac

(1°76) 94 U.S. 351, 24

L. Ed. 195

Dakota Co. vs. Gliddon

(1885) 113 U.S. 222,

28 L. Ed 981, 5 S.Ct.

428

Department of Banking vs.

Pink (1942) 317 U.S. 264,

87 L. Ed 257

F.T.C. vs. Minneapolis -

Honeywell R. Co. (1952)

344 U.S. 206, 97 L. Ed.

aaa; t2 6. GS. 243

Groppi vs. Leslie (1972)

404 U.S. 496, 30 L.Ed2d

632, 92 S.Ct. 582

Johnson vs. Mississippi

(1971) 403 U.S. 212, 29

L.Ed. 2d 423, 91S. Ct.

1778

Price vs. Johnston (1948)

334 U.S. 266

PAGE

16

1l

14

v

Priser, Comm. vs. Newkick

(1975) 422 U.S. 395

Reynolds vs. State of

Georgia (5th Cir., 1981)

640 F. 2d 702

CONSTITUTIONAL PROVISIONS

14th Amendment,

United States Constitution

STATUTES AND RULES

Title 28 U.S.C. Section 1257

Title 42 U.S.C. Section 1983,

1985, 1986

Section 37-61-416, Montana

Codes Annotated

Rule 8&(c), Montana Rules of

Civil Procedure and Federal

Rules of Civil Procedure

OTHER AUTHORITIES

Cases collected at 29 . Ed 2d at

887, Section 7(a)

1

INTRODUCTION

The facts were outlined in the Petition

for a Writ of Certiorari. This brief is

in reply to the Respondent's Reply Brief.

Mr. and Mrs. Ralph Bouma are referred to as

the "Buyers". Larry C. Iverson, Inc., the

Seller under a land exchange contract, is

referred to as"'the Corporation”

ARGUMENT

I. THE FIRST DECISION OF THE MONTANA

SUPREME COURT, APPENDIX B, REPORTED AT

639 P. 2d 47 WAS NOT A "FINAL JUDGMENT"

WITHIN THE MEANING OF TITLE 28 U.S.C

SECTION 1237. THAT DECISION AND THE

PROCEDURE LEADING TO IT MAY BE REVIEWED

BY THE UNITED STATES SUPREME COURT.

This case involved two appeals to the

Montana Supreme Court. First, the trial court,

granted summary judgment to the Sellers on the

contract for deed and provided an accounting.

Both sides appealed. The Montana Supreme

Court reversed for a new accounting. The

Trial Court held a hearing and provided a new

accounting. The Buyers appealed that decision.

The Buyers petition for a writ of certiorari.

2

If a state appellate court reverses a

trial court for a new accounting, then that

appellate court decision is not a final judg-

ment, see cases collected at 29 L. Ed 2d at

887, Section 7(a). In this case, the Montana

Surpeme Court ordered anew accounting, Appendix

B, Petition for Writ of Certiorari, at 89-93.

The first appellate decision was not a final

judgment.

The Corporation argues that the Buyers

started to seek a Writ of Certiorari by asking

Justice Rehnquist for a stay in the first

appeal. The stay was denied. The Buyers

discontinued their attempt to obtain a writ

of certiorari when Judge Langen issued the new

accounting. It was an appealable order under

Montana State Rules; it would be followed by a

final judgment of the Montana Supreme Court.

The Corporation cites no cases that hold

that when a state appellate court orders an

accounting that that decision is "final" with-

in the meaning of Title 28 U.S.C. Section 1257

3

so as to preclude review of errors made prior

to that decision. In both F.T.C. vs. Minneapolis

-Honeywell R. Co. (1952) 344 U.S. 206, 97

L. Ed. 245, 73 S. Ct. 245 and Department of

Banking vs. Pink (1942) 317 U.S. 264, 87 L. Ed

257 the Court held that a post - judgment motion

was not a motion for a rehearing which would

extend the time for a petition for writ of

Certiorari. Neither was a decision where a

state appellate court reversed a lower court

for an accounting.

Further, there is a strong policy reason

not to hold this petition to be untimely. The

Corporation suggests that the first decision

was subject to a petition for writ of certiorari.

The prevailing case law says it was not. There

was no way the Petitioners knew if it was or

not, except by petitioning. The result would

be two petitions for a writ of certiorari for

one case. This would create additional work

for an already over burdened Court.

4

The better procedure would be to exhaust

all state appeals. This would be by holding

the accounting and appealing that decision.

This would result in one petition for a writ of

certiorari on the case.

In summary, the first decision of the

Montana Supreme Court was not final. This

is because an accounting was ordered. All

errors in this case may be reviewed by this

petition for a writ of certiorari.

II. THE PETITION FOR A WRIT OF CERTIORARI

IS NOT BARRED BY RES JUDICATA OR COLLATERAL

ESTOPPEL.

The Corporation argues that the Buyers

brought a Civil Rights action based upon Title

42 U.S.C. Sections 1983, 1985 and 1986. Since

that action was dismissed, all the Buyers due

process claims are barred by collateral estoppel

or res judicata. It cites no cases or other

authority for this assertion (Respondent's

Brief in Opposition at 11-12).

Res judicata is a bar only if the same

claim is brought a second time, Cromwell vs.

County of Sac (1876) 94 U.S. 351, 24 L. Ed.

5

195. Im this case, the Corporation brought a

civil action to void a contract for deed. The

Buyers alleged defenses which included due

process violations. Eventually, the Buyers

brought a civil rights action under Title 42

U.S.C. Sections 1983, 1985 and 1986. They

claimed that the procedural violations amounted

to actionable conduct under those section.

The 9th Circuit Court of Appeals disagreed,

Appendix B, Respondent's Brief in Opposition.

Effectively, it held that such violations did

not state a cause of action under the Civil

Rights Act. Such violations may be reviewed by

the United States Supreme Couxt by a Petition

for a Writ of Certiorari, Reynolds vs. State

of Georgia (5th Cir., 1981) 640 F. 2d 702;

County Club Tower Corp. vs. Tower Management

(D. Mont., 1967) 275 F. Supp. 468.

Furthermore, the Corporation never raised

the defenses of collateral estoppel or res

judicata. Such theories are affirmative defenses

which must be pleailed or are waived, Rule 8(c).

Montana Rules of Civil Procedure and Federal

Rules of Civil Procedure. Since these argu-

ments were not raised before,they have been

waived.

In summary, the Corporation cites no auth-

ority for its argument that the Buyers Petition

is barred by collateral estoppel and res judicata.

Since the causes of action in the state civil

action and the federal civil rights action were

not the same, the Petition is not barred. The

Corporation failed to raise these arguments ear-

lier so they are waived.

III. THE PAYMENT OF THE DAMAGES AWARDED

BY THE MONTANA SUPREME COURT DOES NOT

MOOT THE QUESTION OF WHETHER SUCH DAMAGES

WERE AWARDED IN VIOLATION OF DUE PROCESS.

The Montana Supreme Court awarded the Corp-

oration $500.00 in damages on appeal. This was

done without any notice or opportunity to be

heard. They Buyers asked the Montana Supreme

Court and the United States Supreme Court for

a stay of this order. The stay was denied.

The Buyers paid the award.

The Corporati» argues that the award of

7

$500.00 is moot. This is because it has been

paid.

"There can be no question that a debtor

against whom a judgment for money is recovered

may pay that judgment and bring a writ of error

to reverse it, and if refersed can recover back

his money." Dakota Co. vs. Glidden (1885) 113

U.S. 222, 224, 28 L. Ed. 981, 982, 5 S.Ct. 428.

The payment of the damage award by the Buyers

does not moot the issue of whether the award

violated due process.

The Corporation cites Priser, Comm. vs.

Newkick (1975) 422 U.S. 395. In that case, a

prisoner was transfered from a medium security

prison to a higher security prison without

notice or hearing. He brought a civil action

for injunctive and declaratory relief. Before

a final decision was reached the prisoner was

transfered to a minimum security prison. The

Supreme Court held the case to be moot.

Priser did not involve the payment of dam-

ages after judgment but before an appeal was

decided. It is not on point.

8

The issue of whether damages on appeal were

awarded in violation of due process is not moot.

The Supreme Court may review this issue.

IV. THE PETITION FOR A WRIT OF CERTIORARI

PRESENTS SIX SUBSTANTIAL INDEPENDENT

FEDERAL QUESTIONS. THE SUPREME COURT COULD

GRANT CERTIORARI ON ANY ONE OF THEM.

a. THE BUYERS WREE BOUND BY A PRIOR

COURT ACTION OBTAINED BY FRAUD TO

WHICH THEY WERE NOT A PARTY. THEY

WERE NOT ALLOWED TO RAISE THIS DEFENSE.

The Corporation argues that the Buyers were

not bound by a court decision in which they had

a legitimate interest. This -is not correct.

The Buyers were bound by part of the dec-

ision in United Bank of Pueblo vs. Iverson con-

solidated with Farmers State Bank of Conrad vs.

Iverson Numbered 8221/8073, Appendix F. This

was specifically stated by the Montana Supreme

Court in its opinion, Appendix B at 56, 61, and

73. If the Buyers were bound by that decision

to certain findings, then they had an interest

in the case. They were not a party to that

case.

b. THE CORPORATION FAILED TO ANSWER

FEDERAL QUESTION NUMBER 2.

The Corporation made no argument as federal

question number 2. This argument is unrefuted.

c. THE FACT THAT THE BUYERS WERE GIVEN

A HEARING ON THE MOTION TO DISQUALIFTY

JUDGE LANGEN DOES NOT MEAN THE FAILURE

TO DISQUALIFY HIM DID NOT VIOLATE DUE

PROCESS.

The Corporation argues that a hearing was

held on the disqualification of Judge Langen.

For this reason, the failure to disqualify him

did not violate due process.

The reasons for disqualifying Judge Langen

are stated in the Petition for a Writ of

Certiorari at 35-40. The reasons are not that

a hearing was not held. The reasons are that

Judge Langen was so biased and prejudiced that

due process was violated if he remained on the

case. This argument is unanswered by the Corp-

oration.

d. THE MONTANA SUPREME COURT'S DE-

CIDING THIS CASE VIOLATED DUE PROCESS.

The Corporation argues that Ralph Bouma's

affidavit seeking a grand jury and the Buyers'

Civil Rights Complaint were voluntary acts. For

this reason, they could not be the basis of dis-

10

qualifying the Montana Supreme Court.

In this case, Ralph Bouma sought to keep

the grand jury affidavit secret. This is req-

uired by state law, Section 46-11-317, Montana

Codes Annotated. Despite this attempt, the

affidavit was made public.

The cases cited by the Corporation are not

on point (see Brief in Opposition at 15). They

do not involve a person who tried to keep sec-

ret an application for the impaneling of a grand

jury. Ralph Bouma tried to have the Montana

Supreme Court Justices remain unbiased. His

efforts were unsuccessful.

Furthermore, the Corporation used Ralph

Bouma's grand jury affidavit at oral argument,

Appendix J, at 243 - 245. The affidavit was

completely irrelevant to the validity of a land

exchange contract. Yet, the attorneys for the

Corporation were allowed to incense and emotion-

alize the court be referring to it during oral

argument.

In this case, the Justices of the Supreme

Court were named in a federal law suit brought

ll

by the Buyers. This fact is stated in their

opinion, Appendix B at 52. The justices were

obviously influenced by this fact.

Johnson vs. Mississippi (1971) 403 U.S. 212

29 L. Ed 2d 423, 91 S.Ct. 1778 prevents judges

who are enmeshed with a party from sitting on

a case. The justices of the Montana Supreme

Court were so enmeshed they should have been

disqualified from the proceeding. Their judg-

ments 639 P. 2d 47 (Appendix B) and Appendix

D should be vacated for this reason.

e. THE MONTANA SUPREME COURT DENIED

RALPH BOUMA DUE PROCESS OF LAW BY RE-

FUSING TO ALLOW HIM TO ARGUE HIS CASE.

The Corporation argues that the right to

self-representation in civil matters has never

been established under federal constitutional

law by the United States Supreme Court. This

is true. Three federal circuit courts of appeals

have recognized it (see cases, Petition for

Writ of Certiorari at 44). Only in Montana is

there no such right.

To end this disagreement between the Mont-

ana Supreme Court and the federal courts of

12

appeal the United States Supreme Court should

accept certiorari. This case clearly presents

the chance to extend the right ot self-repre-

sentation in civil matters in state courts under

the 14th Amendment's due process clause.

The Corporation argues that a person has

no right to oral argument. This is true but is

not the issue. The issue is whether one party

may be allowed oral argument because it is

represented by an attorney while the other party

is denied oral argument because he does not have

an attorney.

This is a violation of the 14th Amendment's

due process clause. Also, it violates the 14th

Amendment's equal protection clause. Section

37-61-416, Montana Codes Annotated, states, "A

party to a civil action who is of full age may

.-» defend the same in person..." To allow Ralph

Bouma to defend his case before the trial court

but not in the Montana Supreme Court violates

the equal protection clause of the 14th Amend-

ment.

Furthermore, the Montana Supreme Court had

13

told Ralph Bouma that he would have to argue

his case without his wife's attorney. In

Campanella vs. Bouma (1967) 164 Mont. 217,

520 P. 2d 1073, the Montana Supreme Court quot-

ed,approvingly, language from the trial court.

It said, "In the future, counsel for Mrs. Bouma

will not be permitted to argue or otherwise

participate in instances where she has no more

than a tangential interest and Mr. Bouma has

the direct interest." 520 P. 2d at 1075. With-

out any notice, the Montana Supreme Court rev-

ersed itself and refused to allow Mr. Bouma to

be heard.

The Corporation argues that Ralph Bouma was

not prejudiced by requiring Gustafson to argue

his case. This is not true. Gustafson came to

oral argument prepared only to argue the case

for his client, Mrs. Ralph Bouma. Gustafson's

ineffectiveness was demonstrated in Appendix J

at 243. On that page, Justice Morrison is

quoted as saying, "Now, Mr. Gustafson, what has

all this got to do with the issues before the

court."

14

Finally, the Corporation argues that a

prisoner representing himself has no right to

appear at oral argument, Price vs. Johnston

(1948) 334 U.S. 266. In Price, the court was

concerned with disruption of the prison system.

In this case, Ralph Bouma was not an inmate of

a prison. There would be no disruption. Further,

the Court in Price did not say a prisoner may

be denied oral argument while the state is

allowed it. Price is not on point.

In summary , this case clearly presents

to the United States Supreme Court the question

of whether the due process clause extends to

persons in civil cases the right to self-repre-

sentation. Also, the question of whether the

equal protection clause requires a person repre-

senting himself all the procedural rights of a

person represented by counsel is presented.

These are important federal questions where the

Montana Supreme Court conflicts with several

federal circuit courts of appeal. The United

States Supreme Court should accept certiorari

to decide these issues.

15

f. THE MONTANA SUPREME COURT DENIED

THE BUYERS DUE PROCESS OF LAW BY IM-

POSING DAMAGES ON APPEAL OF $500.00

WITHOUT NOTICE OR OPPORTUNITY TO BE

HEARD.

The Montana Supreme Court imposed damages

of $500.00 against the Buyers on appeal. The

Corporation did not ask for this relief. ‘The

Montana Supreme Court did not say that they were

considering such relief.

The Corporation argues that the Buyers were

given notice by Rule 32, Montana Rules of Appell-

ate Civil Procedure. This rule does provide for

damages on appeal. But, having a rule to prov-

ides for damages does not eliminate the need for

notice of invoking a rule. If this was the case,

a person would not be required to give notice

in civil actions. The existence of a statute

would be adequate for recovery. The Corporat-

ion's argument is:so untenable that it cites

no quthoity for its position.

In summary, an important federal question

is presented for review. It is whether a

State Appellate Court denies due process by im-

posing damages on appeal without any notice or

16

opportunity to be heard. The purpose of such

notice would be to give Boumas a chance to

present mitigating circumstances, Groppi vs.

Leslie (1972) 404 U.S. 496, 30 L. Ed 2d 632,

92 S. Ct. 582. The Supreme Court should grant

a writ of certiorari in this case.

CONCLUSION

The first decision of the Montana Supreme

Court affirmed the trial court and reversed in

part ordering an accounting. It was not a final

judgment or decree. As such, it was not re-

viewable by the United States Supreme Court.

Further, the questions for review are not

barred by res judicata or collateral estoppel.

The Corporation cites no authority for this

position. The Corporation did not raise

this argument in any state court.

In addition, the payment of damages on

appeal does not moot the question of whether

the award of damages without notice or hearing

violates due process. The Corporation cites

no authority for this position.

17

Finally, the Corporation has not sub-

stantially refuted any of the six federal

questions presented for review. The Court

should grant the writ of certiorari on all

or any of the federal questions raised.

Respectfully submitted.

RALPH BOUMA

Attorney Pro Se

P.O. BOX 220

CHOTEAU, MT. 59422

JOHN ALBRECHT

ATTORNEY FOR

MRS. RALPH BOUMA

P.O. BOX 193

CHOTEAU, MT. 59422

18

CERTIFICATE OF MAILING

We certify that on April W2, 1983, that

three copies of the Petitioners’ Reply Brief

quinhiemmenmiieem. were mailed

postage prepaid to:

Ray Koby

Swanberg, Koby, Swanberg

and Matteucci

P.O. Box 2567

Great Falls

Montana 59401

Cresap S. McCracken

Church, Harris, Johnson

and Williams

P.O. Box 1645

Great Falls

Montana 59403

Dated: April R2, 1983.

JOHN ALBRECHT

RALPH BOUMA