# Opposition — Howell v. State Bar of Texas

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1216%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 950

## Text

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
14

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.

14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1216%3A2. Public record. Not legal advice.