Opposition — Howell v. State Bar of Texas

Office - Supreme Court US

ILED

NO. 83-1289 APR 2 j984

IN THE ALEXANDER L. sTEVas

SUPREME COURT OF THE UNITED srateo= a a

OCTOBER TERM, 1983

CHARLES BEN HOWELL, PETITIONER

Ve

STATE BAR OF TEXAS, ET AL., RESPONDENTS

ON WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

BRIEF FOR RESPONDENT

IN OPPOSITION TO CERTIORARI

JERRY L. ZUNKER

GENERAL COUNSEL

STATE BAR OF TEXAS

P.O. BOX 12487

AUSTIN, TEXAS 78711

(512) 475-2288

COUNSEL FOR RESPONDENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....

SUMMARY OF ARGUMENT. ... .

ARGUMENT . . . «© «© «© © © © «

CONCLUSION . . . «© «© © © © «

CERTIFICATE OF SERVICE...

13

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TABLE OF AUTHORITIES

CASES

District of Columbia Court of

*ppea's v. Feldman, 103 S.Ct.

1 3 (1 ) . . 7 . - . . . .

England v. Louisiana State Bd.

of Medical Examiners, 375 U.S.

Sut Leek «st «22 @ sé.

Federated Dep't Stores v. Moitie,

452 U.S. 394 (1981). . e 6

Howell v. State Bar of Texas, 710

Foam tera. Lveeer ie ‘ws bs) 6. ee

Howell v. State Bar of Texas, 674

F.2d 1027 (5th Cir. 1982),

vacated and remanded, 103 S.Ct.

7303 (1983), affirmed in part

and rev'd in part, /10 F.2

T0075 (1583

Ts. 6.4 eee ee

Huffman v. Pursue, Ltd., 420 U.S.

592 (1974) .* >. . _ . * > . — .

Mackay v. Nesbitt, 412 F.2d 846

(9th Cat. 1969) . . . . . . . 7

Middlesex County Ethics Comm. v.

Garden State Bar Ass'n, 102

S.Cts Been Utes 0 0s te

Moore v. Sims, 442 U.S. 415

(1979) > >. > = * . . > > i * .

Railroad Comm'n of Texas v.

Pullman Co., 312 U.S. 496

1941). . . . * * . . . . . . .

Younger v. Harris, 401 U.S. 37

( ) er ie eae ee ee 1 ee

ii

Page

Passim

Passim

Passim

Passim

Passim

STATUTES

SUPREME COURT OF TEXAS, RULES

GOVERNING THE STATE BAR OP

TEXAS art. XII, § 8 (Code of

Professional Responsibility)

DR 1-102(A)(5) (1973).

iii

12

SUMMARY OF ARGUMENT

The United States Court of Appeals

for the Fifth Circuit properly applied

the holding of District of Columbia Court

of Appeals v. Feldman, 103 S.Ct. 1303

(1983), to the case at bar and concluded

that the district court lacked jurisdic-

tion to decide all of the Petitioner's

Claims that were inextricably intertwined

with the state court's decision. The

Court of Appeals further correctly recog-

nized that the England reservation did

not apply in this case because this case

is not a Pullman abstention case but in-

stead is purely a Younger situation.

ARGUMENT

Introduction

The Pifth Circuit Court of Appeals'

opinion of May 3, 1982, Howell v. State

Bar of Texas, 674 F.2d 1027 (5th Cir.

1982) (PA 9), was vacated by the United

States Supreme Court on April 4, 1983,

and remanded for consideration in light

of Feldman. 103 S.Ct. 1515 (1983) (PA

19).

In Feldman, this Court held that

federal district courts have no authority

to review final judgments of state courts

in judicial proceedings but do have sub-

ject matter jurisdiction over general

challenges to state bar rules promulgated

by state courts in non-judicial proceed-

ings, which do not require review of a

final state court judgment in a specific

case. 103 S.Ct. at 1315-17. The Court

noted that a party's failure to raise his

constitutional claims in state court does

not bestow jurisdiction upon the federal

court but in fact might result in the

forfeiture of the party's right to re-

view. Id. at 1315 n.16. The Court con-

cluded, "(W]e expressly do not reach the

question of whether the doctrine of res

judicata forecloses litigation on [the

general constitutional challenge) ele-

ments of these complaints.” Id. at 1317.

Upon remand, the Fifth Circuit Court

of Appeals recognized that Howell was

calling upon the federal district court

to review the state court judgment, which

was beyond the federal court's power.

710 P.2d 1075, 1076-77 (Sth Cir. 1983)

(PA 3-6). The Fifth Circuit Court of

Appeals next held, also in line with

Feldman, that the federal district court

did have subject matter jurisdiction over

Howell's general constitutional attack on

the Texas' disciplinary scheme. The

court then reinstated Part III of its

prior opinion. Id. at 1078.

In Part III of the previous opinion,

the Fifth Circuit rejected the State

Bar's arguments that res judicata barred

litigation in the federal court of claims

that could have been raised in the state

court. 674 F.2d at 1031. The Fifth Cir-

cuit Court of Appeals said that “rules of

preclusion and the mandate of 28 U.S.C. §

1738 can still be suspended under the

England reservation mechanism or when the

federal party against whom preclusion is

asserted did not have a full and fair op-

portunity to litigate his federal claims

in state court." Id. (footnote and cita-

tions omitted). The court then held that

"a hybrid of the England and full-and-

fair opportunity exceptions requires that

res judicata not apply in this case."

Id. The court explained:

We have already noted that the

district court's promise to Howell

that England offered a road back to

federal court was not supported by

the law. Nonetheless, that promise

induced Howell to hold back his

federal claims once he was relegated

to state court. As a result, he

could hardly be said to have had a

full and fair opportunity to present

his federal claims in state court

even though such an opportunity was

in theory present. Had Howell

lodged his federal claims in state

court, he would have forsaken the

chance he had been offered to return

to federal court. We are unwilling

to punish Howell for his reliance on

the federal district court's guid-

ance. His federal claims are not

barred by res judicata.

Id. (footnote omitted). In a footnote,

the court asserted that its “hybrid” ex-

ception was not the same as the “simple

justice" exception expressly rejected by

the Supreme Court in Federated Dep't

Stores v. Moitie, 452 U.S. 394, 399

(1981). Howell, 674 F.2d at 1031 n.9.

The court blamed Howell's predicament not

on Howell but on the “faulty ruling" of

the district court in its order of March

4, 1976, denying Howell's motion for a

+ 7 i ’ x

<i - er ee, we i ae

preliminary injunction to enjoin the

state disciplinary action. Id.

In spite of this Court's order of

April 4, 1983, 103 S.Ct. 1515, remanding

this case to the Fifth Circuit Court of

Appeals for further consideration in

light of Feldman (PA 19), and in spite of

the fact that the Fifth Circuit Court of

Appeals has remanded this case to the

district court for disposition of the

merits of Howell's general constitutional

challenge to Texas' disciplinary proce-

dure (PA 7-8), Howell now petitions this

Court, arguing that Feldman is inapplica-

ble and that he preserved full federal

review by invoking an England reserva-

tion.

England is not Applicable to This Case

Contrary to the primary thrust of

Howell's arguments, this case is not an

England abstention case. It instead

properly falls into the Younger line of

cases, as recognized by the district

court in its letter opinion of July 24,

1980 (PA 18); see also Middlesex County

Ethics Comm. v. Garden State Bar Ass'n,

102 S.Ct. 2515 (1982).

England v. Louisiana State Bd. of

Medical Examiners, 375 U.S. 417 (1964),

clearly stemmed from Railroad Comm'n of

Texas v. Pullman Co., 312 U.S. 496

(1941). England, 375 U.S. at 423

(Douglas, J., concurring). Justice

Douglas noted in his concurring opinion

that there are many occasions when fed-

eral courts abstain, dismissing actions

such as suits to enjoin criminal prosecu-

tions. He wrote: "“"([Pullman) is a dif-

ferent kind of case. There the federal

court does not abstain; it does not dis-

miss the complaint; it retains jurisdic-

tion while the parties go to a state tri-

bunal to obtain a preliminary ruling-~-a

declaratory judgment--on state law ques-

tions." Id. In England, the plaintiffs

were graduates of chiropractic schools

who could not meet the requirements of

the state medical practice act. They

filed suit in federal district court

seeking an injunction and a declaration

that the state statute as applied to them

violated the Fourteenth Amendment. The

district court invoked the abstention

doctrine and sent the plaintiffs to the

state's courts to get a ruling on the

act. Id. at 412-13.

The factual background in England

differs sharply from that of the case at

bar and brings into clear focus the inap-

plicability of England to this case.

Here, the state disciplinary suit was al-

ready in progress when Howell sought to

enjoin the state proceedings in federal

district court. The federal court prop-

erly denied Howell's motion for a pre-

liminary injunction pursuant to Huffman

v. Pursue, Ltd., 420 U.S. 592 (1974) and

Younger v. Harris, 401 U.S. 37 (1971) (PA

22). (The court then held out the mis-

taken promise of an England reservation

which has resulted in the present, con-

tinuing litigation.)

Younger's application to this case

is impossible to dispute. The Supreme

Court has held that Younger principles

specifically apply to attorney disciplin-

ary proceedings. Middlesex County Ethics

Comm., 102 S.Ct. at 2521-24.

The federal district court ultimate-

ly dismissed this case on Younger princi-

ples as extended to civil proceedings in

Moore v. Sims, 442 U.S. 415, 423 (1979)

(PA 18). The district judge recognized

in his letter opinion of July 24, 1980,

that England did not apply:

[The England] Plaintiffs...

were told e a lawsuit in state

court for an authoritative construc-

tion of a state statute so that a

constitutional claim would not be

decided if the statute were con-

strued in Plaintiff's favor. Plain- ‘

tiff here [Howell] was not the

Plaintiff in the state court suit

+ « « and was not seeking the con-

struction of a state statute. He

was the Defendant in a case ii which

the Plaintiff won an affirmative

judgment against him. His constitu-

tional claims were more of a compul-

sory defense in that suit. See

Moore v. Sims, 442 U.S. 415 (1979).

(PA 18).

Howell places great emphasis on the

fact that he was in state court “against

his will,” claiming such as a key dis-

tinction between this case and Feldman.

However, Younger and its progeny concern

situations in which the federal plain-

tiffs also were in state court “against

their will." Such factor does not affect

the Supreme Court's clear mandate that

the pertinent inquiry is whether the

state proceedings afford adequate oppor-

tunity to raise constitutional claims.

Middlesex County Ethics Comm., 102 8.Ct.

at 2521; see also Moore v. Sims, 442 U.S.

at 430 n.12.

10

Feldman directs that where litigants

seek review in federal district court of

issues inextricably intertwined with a

state court judgment, the federal dis-

trict court lacks subject matter juris-

diction over the claims. 103 S.Ct. at

1315. Adhering to Feldman, the Fifth

Circuit Court of Appeals stated, "A dis-

trict court's erroneous interpretation of

the law, even when combined with a liti-

gant's asserted reliance on the error,

cannot create jurisdiction where it would

not otherwise exist." Howell, 710 F.2d

at 1078. In other words, abstention

where no subject matter jurisdiction

exists reserves nothing.

Feldman expressly applies to attor-

ney disciplinary cases. The Court notes

the importance of recognizing the

strength of the state interest in regu-

lating the state bar and quotes with ap-

proval MacKay v. Nesbett, 412 F.2d 646

ll

(9th Cir. 1969): “Orders of a state

court relating to the admission, disci-

pline, and disbarment of members of its

bar may be reviewed only by the Supreme

Court of the United States on certiorari

to the state court, and not by means of

an original action in a lower federal

court... ." 103 S.Ct. at 1315-16 n.16

(emphasis added). Howell's contentions

belie this Court's express authority

otherwise.

Finally, Howell has been awarded his

day in federal district court to hear his

general constitutional attack on DR

1-102(A)(5) of the Texas Code of Profes-

sional Responsibility. If the Fifth Cir-

cuit Court of Appeals committed any error

in its reconsideration of this case, it

was in refusing to apply res judicata to

foreclose litigation of this one remain-

ing claim, the only question left open by

the Peldman decision.

12

CONCLUSION

Feldman controls this case and re-

iterates the long-standing rule that

federal district courts cannot sit in

direct review of state court judgments.

The federal district court's promise of

an England reservation of federal claims

was erroneous and could not create juris-

diction where it never existed.

The Petition for Writ of Certiorari

to the Fifth Circuit Court of Appeals

should be denied.

Respectfully submitted,

Jerry L. Zunker

General Counsel

State Bar of Texas

13

CERTIFICATE OF SERVICE

I, Jerry L. Zunker, counsel of

record for Respondent and a member of the

Bar of this Court, do hereby certify that

on this 30th day of March , 1984,

three copies of the above and foregoing

Brief for Respondent were served by mail

on Tom Scott McCorkle, Jr., 500 Katy

Building, 701 Co e Street, Dallas,

Texas 75202, cou for the

Petitioner.

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