Opposition — New Mexico ex rel. One Minute of Silence Statute v. Burciaga

Office - Supreme Court, U.S.

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x

No. 83-9 ELLED

Supreme Court of the United s

OCT 24 '985

IN THE

ALEXANDER L STEVAS.

' ERK

gies —

OCTOBER TERM, 1983

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STATE OF NEW MEXICO, ex rel.

“One Minute of Silence” Statute, et al.,

Petitioners,

JUAN G. BURCIAGA, U.S. District Court Judge

‘

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r the District of New Mexic

Respondent.

BRIEF IN OPPOSITION

October. 1983

DAN A. GONZALES

SAENZ, GONZALES & FERRE

300 East Griggs

Las Cruces, New Mexicc

(S05) 423-8504

CHARLES S. SIMS, Counsel of Record

JACK D. NOVIK

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York |0036

(212) 944-9800

i/forne y for Plaintiffs Below

Jerry and John Duff\

QUESTION PRESENTED FOR REVIEW

Should this Court grant a writ of

certiorari to review the Tenth Circuit's

denial of a petition for writ of prohibition

seeking to enjoin the enforcement of a

district court judgment, where petitioners

were not parties in the district court, nor

privy to the proceedings, and neither

participated nor were represented in the

district court in any way?

LIST OF PARTIES TO THE PROCEEDINGS

The present petition for a writ of

certiorari is being misrepresented to the

Court as a petition ex rel. the State of New

Mexico. Neither the present petition nor the

petition for a writ of prohibition in the

Tenth Circuit was instituted by the Attorney

General of the State of New Mexico in the

name of, or on behalf of, the State of New

Mexico. The State of New Mexico and its

Attorney General were not parties in and did

not participate in any way in either the

district court or the Court of Appeals. They

have had nothing to do with the present,

unauthorized petition. Therefore, they are

not parties here under this Court's rules.

Similarly, although the Las Cruces

Public Schools, its Superintendent, and the

members of its Board of Education were

parties defendant in the district court, they

took no appeal to the Tenth Circuit, and were

not parties in or represented in any way in

the proceedings in the Tenth Circuit in which

the real petitioners here, purporting without

authority to act "ex rel." the State of New

Mexico, sought a writ of prohibition.

Accordingly, under this Court's Rule 17 they

are not parties here either.

Petitioners correctly identify only the

sole named respondent, the Honorable Juan G.

Burciaga, United States District Judge for

the District of New Mexico, whose final

judgment in Duffy v. Las Cruces Public

Schools, 557 F.Supp. 1013 (D.N.M. 1983) they

seek to enjoin even though they were neither

parties nor privy to the record and did not

participate in any way in the proceedings in

the district court.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW......+- i

LIST OF PARTIES TO THE PROCEEDINGS... i

TABLE OF AUTHORITIES... ccccccccccvesee V

JURISDICTION. ccccccccccvcccccscccscces &

STATEMENT OF THE CASE..ccccccccccccee 2

SUMMARY OF ARGUMENT..ccccccccscccceee 9

ARGUMENT. ccccccccccccccccccsescvccces ©

ee i eek eae eee es enes eens ees &

TABLE OF AUTHORITIES

Pages

Cases:

Cooper v. Aaron, 358 U.S. l

CROSS 6cbecunceseteceaewetanxcoeawekner

Duffy v. Las Cruces Public Schools

et al., 557 Supp. 1013 (D.N.M.

C2963) oo os cbbeveeecledevtscheane eee

Ex parte Cutting, 94 U.S. 14,

20-22 FASTT) és ccenccoansuséacmueeewen

Ex parte Leaf Tobacco Board, 222

578 581 gi 7 |} pee rr

Oregon State Elks Assn.v. Falkenstein,

409 ss 1099 [LS TS) eccéacsecceeenen

Statutes:

Seeees |. po acne wee e oeec’.on ee 64 eee eee

JURISDICTION

This Court lacks jurisdiction pursuant

to 28 U.S.C. §1254(1), since the petitioners

were not "parties" in any civil or criminal

case in the Court of Appeals sought to be

reviewed. Oregon State Elks Assn. Vv.

Falkenstein, 409 U.S. 1099 (1973); Ex parte

Leaf Tobacco Board, 222 U.S. 578, 581 (1911);

Ex parte Cutting, 94 U.S. 14, 20-22 (1877).

Jurisdiction does not lie under 28 U.S.C.

§1651, since the writ sought is neither

"necessary" nor “appropriate” under these

circumstances, and is not in aid of this

Court's appellate jurisdiction.

STATEMENT OF THE CASE

The New Mexico Legislature, during its

1981 session, enacted Section 25-5-4.1(NMSA

1978), which authorizes each local school

board to institute a period of silence at the

beginning of the school day to be used for

contemplation, meditation, or prayer. On

October 19, 1981, Jerry Duffy, on his own

behalf and as next friend of John P. Duffy,

his minor son, filed a complaint for

declaratory and injunctive relief in the

United States District Court for the District

of New Mexico to declare the statute uncon-

stitutional and to enjoin its implementation

in the Las Cruces Public Schools. Named as

defendants were the Las Cruces Public

Schools; John E. Stablein, Superintendent;

and Joan Pucelik, Walter Rubens, Vincent

Boudreau, Ms. Tom Salopek, and Everett

Crawford, in their official capacities as

members of the Las Cruces Board of Education.

The caSe was tried before the Honorable

Juan G. Burciaga, United States District

Judge. All of the issues were thoroughly and

exhaustively briefed by both sides pursuant

to a motion to dismiss, a motion for summary

judgment, and in post-trial memoranda. On

February 10, 1983, the court entered an order

granting the injunctive and declaratory

relief requested by the plaintiffs. (See

Petition App. 1 and App. 25).

During a public meeting held in Las

Cruces, the defendant Board of Education

voted unanimously not to appeal the district

court judgment. The defendants, in fact,

expressed relief that the statute and its

attendant litigation, which had caused

tremendous controversy and political

devisiveness within the community, had

finally been laid to rest.

One Jean Walsh, a petitioner here, who

was not a party to the proceedings below,

nevertheless sought to prosecute a direct

appeal to the Tenth Circuit. Although Walsh

purported to be acting in her own behalf and

"in behalf of children within the Las Cruces

School District", Walsh did not allege that

she had children of her own within the school

district. Walsh asserted standing to appeal

as a taxpayer, alleging previous payment of

attorneys fees and costs by the Risk Manage-

ment Division of the State of New Mexico. (It

should be noted, however, that no tax monies

were spent in defense of the action, nor in

the award of attorneys fees to the prevailing

party, inasmuch as the defendants maintained

a policy of insurance with the Risk

Management Division from which such fees and

expenses were paid.) On June 29, 1983, the

Tenth Circuit dismissed Walsh's appeal for

lack of standing.

Unsatisfied with the decision of the

district court and correctly anticipating the

denial of her frivolous appeal, Walsh and

others filed a petition for a writ of

prohibition in the Tenth Circuit on March 30,

1983 (App. 42-79). On April 8, 1983 before

The Honorable Robert H. McWilliams, The

Honorable James E. Barrett, and The Honorable

William E. Doyle, Circuit Judges, the Tenth

Circuit denied Walsh's petition (App. 29).

The pending petition for a writ of

certiorari pertains only to the Tenth

Circuit's denial of that petition for a writ

of prohibition.

SUMMARY OF ARGUMENT

The Tenth Circuit determined that Jean

Walsh, a petitioner herein, lacked standing

to appeal the judgment entered in Duffy v.

Las Cruces Public Schools, 557 F. Supp. 1013

(D.N.M. 1983). Nevertheless, Walsh and

others similarly situated then filed a

petition for writ of prohibition in the Tenth

Circuit to enjoin enforcement of the judg-

ment. Those petitioners, by and through

their attorney, Eugene E. Klecan, have

intentionally deceived the Tenth Circuit and

now this Court by captioning their petition,

"STATE OF NEW MEXICO,ex rel.," when, in fact,

there was no appeal taken from the district

court's judgment and the State of New Mexico

has not participated in these proceedings in

any way.

The Tenth Circuit's denial of the

requested writ of prohibition does not, under

these circumstances, warrant this Court's

review.

ARGUMENT

Petitioners have not demonstrated any

basis for this Court's jurisdiction to grant

this petition. See supra, at l.

Petitioners insist that the Tenth

Amendment to the United States Constitution

guarantees them "The right to defend the

sovereignty.” (Pet.App. 45). They assert

that any act of any state legislature is an

act of self-government and therefore a right

guaranteed to the people by the Tenth

Amendment, not subject to review by the

federal judiciary. Such a conclusion leads

to the absurd result that the Tenth Amendment

takes precedence over all other provisions of

the United States Constitution, even where

State action has been judicially determined

to be unconstitutional. This is not the

law. Cooper v. Aaron, 358 U.S. 1 (1958).

Petitioners argue that unless the

distsc.ct court's judgment is enjoined, they

will suffer a denial of their right to

petition the government for a redress of

grievances. But they are free to petition

whomever they choose, notwithstanding any

actions allegedly taken by the courts

below. Moreover, petitioners have not been

legally aggrieved by the judgment. The

injunction was entered against only the

defendants in the underlying law suit. No

injunction was entered against Walsh and the

other petitioners herein.

To hold that the Tenth Amendment

guarantees "to the people” the right to

govern themselves in a constitutionally

impermissible manner is legally untenable,

and would deny Jerry and John Duffy their

First Amendment rights which they

successfully protected in a case from which

defendants did not appeal.

Petitioners and their attorney have gone

to great lengths to create lengthy and

expensive litigation, and to mislead this and

Other courts in their attempts tw introduce

religious activity into the public schools in

violation of the First Amendment. This

frivolous petition should be promptly denied.

CONCLUSION

For the foregoing reasons, the petition

for a writ of certiorari should be denied.

Respectfully submitted,

DAN A GONZALES

SAENZ, GONZALES & FERREIRA

300 East Griggs

Las Cruces, NM 88001

(505) 423-8504

CHARLES S. SIMS,

Counsel of Record

JACK D. NOVIK

American Civil Liberties

Union Foundation

132 West 43 Street

New York, NY 10036

(212) 944-9800

October ,1983 Attorney for Plaintiffs

Below Jerry and

John Duffy