Opposition Brief — Johns v. Supreme Court of Ohio

“| Office-Supreme Court, U8

CASE NO. 84-1917 FILED

In The JUL 29 1965

Supreme Court of the United —

OCTOBER TERM, 1984

FRANK L. JOHNS,

Petitioner,

Vv.

THE SUPREME COURT OF OHIO,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

DAVID E. NORTHROP

Deputy Chief Counsel

Counsel of Record

JOHN T. WILLIAMS

ANDREW |. SUTTER

Assistant Attorneys General

State Office Tower

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-5026

COUNSEL FOR RESPONDENT,

THE SUPREME COURT OF OHIO

” BEST AVAILABLE COPY |

QUESTIONS PRESENTED

Does the Eleventh Amendment to the United

States Constitution prohibit the federal judiciary

from ordering state officials to conform their

behavior to state law?

Does the Eleventh Amendment to the United States

Constitution prohibit the federal judiciary from

exercising its jurisdiction in suits where retroactive

damages are sought from a state?

Does a United States district court have jurisdiction

to review as if on appeal a decision rendered by a

state’s highest court?

PARTIES

Pursuant to Rule 34.1(b), Rules of the Supreme

Court, all parties to this action are listed in the caption

of the case.

TABLE OF CONTENTS

Page

ge 8:

i Er re ii

DN A 6 5 a Os 0n 8 6S Sav ee 1

EEE ee ee 1

CONSTITUTIONAL PROVISIONS INVOLVED ...... 1

ee ag SS Se 2

ee 5

ee eee GaGa Ck kate bas eeee naw 6

iv

TABLE OF AUTHORITIES

Page

Cases:

Allen v. McCurry,

ET a kha os 00500 node ee ee sas 13

Beck v. Washington,

ee ED, bs 6 os cw Ge ee we Kee 8

Castorr v. Brundage,

674 F.2d 631 (Gth Cir. 1962) ................ 13

Clark v. State of Washington,

goo F.20 G76 (on) Cir. 1OGG) .. ww cece 12

Coogan v. Cincinnati Bar Association,

ie RP ee ey 13

District of Columbia Court of Appeals v. Feldman,

ooo in ce 6 oe ue owe Oe 6, 11

Dugan v. Rank,

re ED, ov as cae bw cence utnaske 5,9

Edelman v. Jordan,

ee Ws Ne UU a's oh nok ues acc coen 5,9, 10

Federated Department Stores v. Moitie,

Be UB. et, PM UMED gc ees cece ccc wcnss 13

Ginter v. State Bar of Nevada,

ee Fe eee Ce a, WOU gv ce cc ccc ees 10

Gryger v. Burke,

Es PUMP, 5k cs cna ve censveended 8

Haggard v. State of Tennessee,

G21 20 taee coe Gir. TOF)... cae ee 6, 12

Hortonville Junction School District v. Hortonville

Education Association, 426 U.S. 482 (1976) ....11

Johns v. State,

67 Ohio St. 2d 325, 423 N.E.2d 863 (1981),

cert. denied, 455 U.S. 944 (1982)............. 11

Johns v. Supreme Court of Ohio,

Fale Oe ee OE Ile PUI on ccs cesses cueen 7

Le Ne

TABLE OF AUTHORITIES cont’d

Page

Lamar v. 118th Judicial District of Texas,

GT ee eee Cet Gat. TOT Es wi ee ki eass 12

Layne & Bowler Corp. v. Western Wells Works, Inc.,

ee MC AG kc oon a NW Oks os 0c eo ss 7

Migra v. Warren City School District Board of

Education, U.S. , 104 S. Ct.

ND i eee eae c te ea ee ae a ed 13

N.A.A.C.P. v. State of California,

511 F. Supe. 1264 (E.0. Cal. 1981) ........... 10

Pennhurst State School & Hospital v. Halderman,

U.S. , 104 S. Ct. 900 (1984) .. .5,9, 10

Rice v. Sioux City Memorial Park Cemetery, /nc.,

a ED a a oe eee ead ee

St. Louis v. Supreme Court of Nevada,

490 F. Supp. 1174 (D. Nev. 1980) ............ 10

Schad v. Borough of Mt. Ephraim,

ee RT Es. soy a cs Avo tawau ve kben us 11

Stump v. Sparkman,

REE o vx'v ak vs es 558 a sewee eeu 10

Statutes:

ER eS rere eee 6,11

FR SS re ree 6, 12

Other Authorities:

Ohio Substitute Senate Bill No. 221,

112th General Assembly (eff. Nov. 23,

kas «254 CAP EAS Cheeks eeeee 7,10

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is reported at 753 F.2d 524 (6th

Cir. 1985) and is reproduced in the Petition for Certiorari

at page Al. The opinion of the United States District

Court for the Southern District of Ohio, Eastern Division,

is unreported and is reproduced in the Petition for

Certiorari at page A13.

JURISDICTION

The decision of the United States District Court for

the Southern District ot Ohio, Eastern Division, noted

above, was entered on April 18, 1983. The decision of

the United States Court of Appeals for the Sixth Circuit,

noted above, was entered on January 30, 1985. Jurisdic-

tion is alleged pursuant to 28 U.S.C. Section 1254(1) and

the Fourteenth Amendment to the United States

Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

The case involves Section 1 of Amendment XIV to

the Constitution of the United States:

SECTION 1. All persons born or natural-

ized in the United States, and subject to

the jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

A concise description of the insteat case is

contained in the Sixth Circuit Court of Appeals’ decision:

The history of this litigation begins

with the arrest of Frank L. Johns in 1964

for selling marijuana. Following his

arrest, Johns was convicted of criminal

charges and sentenced to 30 to 60 years

of imprisonment. After serving six and

one-half years of this term, this court

granted Johns’ petition for a writ of

habeas corpus. Johns v. Perini, 462 F.2d

1308 (6th Cir.), cert. denied, 409 U.S.

1049, (1972). The petition was granted

on the grounds that Johns had been denied

effective assistance of counsel. /d. The

State of Ohio did not retry Johns.

Johns believed that he had been unlaw-

fully imprisoned and sought to recover

damages for his imprisonment from the

State of Ohio. The 112th General

Assembly of Ohio passed Substitute

Senate Bill No. 221, effective November

23, 1977, granting Johns permission to

file a claim against the state. Section 41

of that bill provides:

Section 41. Notwithstanding

the provisions of Chapter 2743 of

the Revised Code, Mr. Frank

Johns, 12705 Craven Avenue,

Cleveland, Ohio 44105, is hereby

authorized to file a claim for

damages in the Court of Claims

for unlawful incarceration and for

lost wages, legal expenses, and

general damages resulting from his

alleged unlawful incarceration.

The Court of Claims, after all the

evidence in support of this claim

has been heard, shall determine:

(1) whether the preponderance of

the evidence offered supports a

finding that Mr. Johns had been

unlawfully incarcerated by the

State of Ohio, and if this is so (2)

the dollar amount of damages to

be awarded as compensation.

Funds shall be available from the

balance in the reparations Rotary

Fund to pay any awards for

damages made to Mr. Johns by

the Court of Claims. Such claim

for damages must be filed prior

to July 1, 1979, after which date

the authority to file such claim

shall expire.

Johns then filed a claim against the

state in the Ohio Court of Claims. His

action was dismissed twice in the Court

of Claims. Both times the Ohio Court of

Appeals ordered that the claim be rein-

stated. Eventually, the Court of Claims

denied Johns’ claim for relief, and the

court’s decision was upheld by the Ohio

Supreme Court. Johns v. State, 67 Ohio

St.2d 325, 423 N.E.2d 863 (1981),

cert denied, 455 U.S. 944 (1982).

Johns then brought suit under 42

U.S.C. Section 1983 in the United States

District Court for the Southern District of

Ohio. In his complaint Johns requested

that

the judgment of the Supreme

Court of Ohio. . .be vacated and

that the Defendant be ordered

and directed to rehear the case

and to determine the issues

before it solely in accordance

with established applicable

principles of Ohio law, _in-

cluding the statute enacted by

the General Assembly of Ohio

constituting the basis of the

litigation before it and the

rights and benefits asserted by

the Plaintiff.

Johns v. The Supreme Court of Ohio, 753 F.2d 524,

525-26 (6th Cir. 1985).

United States District Judge Robert M. Duncan

dismissed Petitioner’s suit finding that a federal court

lacked jurisdiction to hear the case. Johns v. The

Supreme Court of Ohio, No. C-2-82-1581 (S.D. Ohio,

Apr. 18, 1983). His decision was affirmed by the United

States Court of Appeals for the Sixth Circuit. Johns, 753

F.2d at 524. This case is now before this Court on a

Petition for writ of certiorari.

SUMMARY OF ARGUMENT

1. Neither the Constitution nor laws of the

United States grant Petitioner a right to review on a writ

of certiorari. This Court traditionally has demanded a

demonstration of the existence of unresolved federal

questions of sufficient scope and impact to justify an

exercise of its discretionary jurisdiction. Rice v. Sioux

City Memorial Park Cemetery, Inc., 349 U.S. 70 (1955).

Petitioner’s suit, which seeks nothing more than

federal court review of a state court interpretation of

state law, is bereft of federa, issues. Even if federal issues

were present, this action is so unusual and episodic in

nature that review by this Court would not result in

resolution of important questions of federal law.

2. Petitioner’s suit is an expression of his

dissatisfaction with Respondent’s interpretation of Ohio

law. In seeking reversal, Petitioner invites this Court

to depart from its prior interpretations of the Eleventh

Amendment to the United States Constitution: federal

courts may not order state officials to conform their

conduct to state law, Pennhurst State School & Hospital

v. Halderman, U.S. , 104 S. Ct. 900 (1984);

retroactive relief against a state may not be obtained in

federal court, Edelman v. Jordan, 451 U.S. 651 (1974);

and whether or not named, the state is the real party in

interest when money from the public treasury will be

utilized to satisfy an award of damages, Dugan v. Rank,

372 U.S. 609 (1963).

3. Pursuant to 28 U.S.C. Section 1257, only this

Court has jurisdiction to review a decision rendered by a

state’s highest court. District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983). As a result, the

courts below correctly concluded that the district court

had no authority to hear Petitioner’s case.

Even in the absence of 28 U.S.C. Section 1257,

because Petitioner’s cause is tantamount to an action

in mandamus, federal law would still prevent any exercise

of the district court's jurisdiction in this matter. See 28

U.S.C. Section 1361; Haggard v. State of Tennessee, 421

F.2d 1384 (6th Cir. 1970).

In any event, Petitioner attempts to relitigate issues

he raised, or could have raised, in an earlier case. There-

fore, this action is barred by the doctrine of res judicata.

ARGUMENT

I

NEITHER THE CONSTITUTION NOR

LAWS OF THE UNITED STATES

VESTS IN PETITIONER ANY RIGHT

TO HAVE HIS SUIT REVIEWED ON

WRIT OF CERTIORARI.

Whether to grant review on a writ of certiorari is

solely within the discretion of this Court. Sup. Ct. R.

17. Before a writ of certiorari will issue, Petitioner must

demonstrate to the satisfaction of this Court that his case

presents ‘‘special and important reasons’’ deserving

attention. /d. These reasons go “‘beyond the. . .episodic.”’

ee ere

Rice v. Sioux City Memorial Park Cemetery, Inc., 349

U.S. 70, 74 (1955). They must involve “principles the

settlement of which is of importance to the public, as

distinguished from that of the parties,’”” or must arise in

the context of a “real and embarrassing conflict of

opinion and authority between the Circuit Courts of

Appeals,” Layne & Bowler Corp. v. Western Wells

Works, Inc., 261 U.S. 387, 393 (1923) (quoted in Rice,

349 U.S. at 619-20), or betweer state courts of las*

resort. Sup. Ct. R. 17.

Viewing this test from the perspective of the instant

controversy, Petitioner could not find himself on shakier

ground. First, the test for issuance of a writ of certiorari

Eresupposes issues of federal concern. In summarizing

the posture of this case, the Court of Appeals for the

Sixth Circuit noted that Petitioner

alleges no violation of any specific federal

constitutional rights other than in the

most conclusory terms; his disagreement

[with Respondent] stems from his

unhappiness with the manner in which the

Ohio courts construed the Ohio legisla-

ture’s limited waiver of sovereign

immunity in section 41 of [Ohio]

Substitute Senate Bill No. 221.

Johns v. The Supreme Court of Ohio, 753 F.2d 524, 526

(6th Cir. 1985).

Even assuming, arguendo, that a misapplication of

state law occurred during Petitioner’s protracted journey

through the Ohio court system, the Equal Protection

Clause of the Fourteenth Amendment does not guarantee

freedom from judicial error. Beck v. Washington, 369

U.S. 541, 554-55 (1962). Nor may a federal court

substitute its own judgment, on an aliegedly erroneous

interpretation of state law by a state court, and then

treat its determination that error occurred as conclusively

demonstrating there was a violation of the Due Process

Clause in the state court proceeding. Gryger v. Burke,

334 U.S. 729, 731 (1948).

Second, Petitioner’s cause of action is as individual-

istic as any accusation of false imprisonment. His alleged

injury results from Respondent’s interpretation of one

piece of state legislation designed especially for Petitioner

and intended to have but a single application. Such

circumstances are almost synonomous with ‘‘episodic.’’

Third, Petitioner cannot identify any benefit which

will flow to the public as a result of continued litigation

in this matter. The idiosyncratic nature of this case will

make any decision on the merits rendered by this Court

capable of producing few, if any, consequences for future

litigants. With the exception of Petitioner’s already

adjudicated claim, no legal right is at issue.

Finaliy, Petitioner can hardly argue that any juristic

conflict will be resolved should his request for review be

granted. In short, Petitioner’s case satisfies none of the

criteria established for distinguishing meritorious from

neritless petitions for writs of certiorari.

ee Se eee Ste ene ee a nee

THE GRANTING OF A WRIT OF

CERTIORARI IS INAPPROPRIATE

WHERE THIS COURT’S PRIOR DECI-

SIONS HAVE DEALT EXTENSIVELY

AND CONCLUSIVELY WITH THE

ISSUES RAISED BY PETITIONER.

A. THIS COURT’S DECISION IN

PENNHURST STATE SCHOOL

& HOSPITAL V. HALDERMAN

MANDATES REJECTION IN

THIS CASE OF THE PETI-

TION FOR REVIEW BY WRIT

OF CERTIORARI.

Petitioner seeks to portray his cause as one

appropriate for federal intervention. As the Court of

Appeals for the Sixth Circuit concluded, however,

Petitioner calls on the federal courts to ignore firmly

settled constitutional doctrine: the Eleventh Amend-

ment prohibits the federal judiciary from commanding

state officials to conduct themseives in conformance with

state law ‘‘when the relief sought and ordered has an

impact directly on the state itself.’’ Pennhurst State

School & Hospital v. Halderman, U.S. , 104

S. Ct. 900, 917 (1984). This admonition holds true even

when suit is initiated by a citizen of the defendant state.

Edelman v. Jordan, 415 U.S. 651 (1974).

The state is the real party in interest and the direct

target of suit if “the judgment would expend itself on

the public treasury. . .or compel [the state] to act.’

Pennhurst, 104 S. Ct. at 908 n.11 (quoting Dugan v.

Rank, 327 U.S. 609, 620 (1963)). A state’s highest

10

court is an integral part of the state and thereby shielded

by the Eleventh Amendment barrier to suit in federal

court. See, e.g., N.A.A.C.P. v. State of California, 511 F.

Supp. 1244, 1257 (E.D. Calif. 1981); St Louis v.

Supreme Court of Nevada, 490 F. Supp. 1174, 1180 (D.

Nev. 1980); cf£ Ginter v. State Bar of Nevada, 625 F.2d

829, 830 (9th Cir. 1980).

Here, Petitioner requests this tribunal to contradict

the Ohio Supreme Court's interpretation of Ohio law

and compel Respondent to award damages for past

injuries allegedly suffered by Petitioner at the hands of

the State of Ohio. Because Petitioner has not sought, and

is barred by judicial immunity from seeking, damages

from any judges of the Ohio Supreme Court in their

individual capacities, see Stump v. Sparkman, 435 U.S.

349 (1978), the only source of recovery must be the

state’s treasury. This would give rise to a judgment of

retroactive relief directly against the state, the exact

scenario the Eleventh Amendment was designed to

prevent. Ede/man, 415 U.S. at 664-70.

Of course, sovereign immunity may be waived,

Pennhurst, 104 S. Ct. at 907; and Ohio Substitute Senate

Bill No. 221 did contain a waiver to the extent that

Petitioner was permitted to sue in Ohio’s Court of

Claims. Nevertheless, ‘‘a State’s waiver of sovereign

immunity in its Own courts is not a waiver of Eleventh

Amendment immunity in the federal courts.’’ Pennhurst,

104 S. Ct. at 907 n.9. Unless the State’s waiver explicitly

includes consent to suit in federal court, the Eleventh

Amendment forbids the exercise of federal jurisdiction.

Pennhurst, 104 S. Ct. at 907. Clearly, none of the

language in Substitute Senate Bill No. 221 remotely

resembles a surrender of the State of Ohio’s Eleventh

Amendment immunity.

11

B. A FEDERAL DISTRICT COURT

LACKS SUBJECT MATTER JURIS-

DICTION TO REVIEW A DECISION

OF THE OH!O SUPREME COURT.

From its inception, Petitioner’s suit has been a

thinly veiled attempt to attack collaterally in the federal

arena the finality of a state court proceeding. Yet, it is

well established that the jurisdiction of a federal district

court is strictly original; it is without jurisdiction to

review, let alone reverse or modify, the judicial deter-

mination of a state’s highest court.' District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482-86

(1983). This applies in spite of allegations that ‘‘the

state court’s action was unconstitutional.’’ /d. Review

of state court proceedings is reserved to this Court. /d.,

see also 28 U.S.C. Section 1257, and Petitioner has

already exhausted his opportunity to present his argu-

ments regarding Respondent’s handling of his case. See

Johns v. State, 67 Ohio St. 2d 325, 423 N.E.2d 863

(1981), cert. denied, 455 U.S. 944 (1982). Petitioner's

invention of specious federal issues cannot resuscitate

long-resolved questions of law. He is not entitled to a

second federal review of state court action because he

is disappointed by this Court’s response to his first

petition for a writ of certiorari.

' Federal courts are bourd to observe interpretations of state law

rendered by a state’s highest court. See, °.g., Schad v. Borough of Mt.

Ephraim, 452 U.S. 61, 65 (1981); Hortonville Junction School District v.

Hortonville Education Association, 426 U.S. 482, 488 (1976).

2

C. A FEDERAL DISTRICT COURT MAY

NOT GRANT THE SORT OF RELIEF

REQUESTED.

Even if the district court otherwise had jurisdiction

over this claim, it would lack authority to grant the

requested relief. Petitioner is asking this Court to direct

the Supreme Court of Ohio to vacate its final judgment

and rehear a case. Such a claim for relief is, in essence,

one for a writ of mandamus. -

Congress, in 28 U.S.C. Section 1361, has granted

district courts jurisdiction over mandamus actions but

that grant of jurisdiction is limited to actions against

federal officers or employees:

[t] he district courts shall have original

jurisdiction of any action in the nature of

mandamus to compel an officer or

employee of the United States or any

agency thereof to perform a duty owed

to the plaintiff.

Neither Section 1361 nor any other statute confers

jurisdiction on a federal court over such actions against

a state court. “In any event, Federal Courts have no

authority to issue writs of mandamus to direct state

courts or their judicial officers in the performance of

their duties.” Haggard v. State of Tennessee, 421 F.2d

1384, 1386 (6th Cir. 1970). See a/so Lamar v. 718th

Judicial District of Texas, 440 F.2d 383, 384 (5th Cir.

1971); Clark v. State of Washington, 366 F.2d 678,

681 (9th Cir. 1966).

Oy CS ChE MERE

ES ee Oe Late tenet

D. THIS ACTION iS BARRED BY THE

DOCTRINE OF RES JUDICATA.

According to the doctrine of res judicata, a \itigant

is barred from “‘relitigating issues that were or could have

been raised’’ in an earlier case. Federated Department

Stores v. Moitie, 452 U.S. 394, 398 (1981); see a/so

Migra v. Warren City School District Board of Education,

U.S. , 104 S. Ct. 892, 894 (1984). Aes

judicata applies in federal court to bar relitigation of

matters adjudicated in state court, and the doctrine is

fully applicable even to actions under 42 U.S.C. Section

1983. Allen v. McCurry, 449 U.S. 90, 103-04 (1980).

Petitioner does not avoid the doctrine by suing, in the

second action, the tribunal that rendered the earlier

decision. See, e.g., Coogan v. Cincinnati Bar Association,

431 F.2d 1209 (6th Cir. 1970); and Castorr v. Brundage,

674 F.2d 531 (6th Cir. 1982) (court invoked res judicata

to dismiss suits against state judges that challenged a

state court decision). Petitioner must not be permitted

to circumvent the doctrine of res judicata under the

pretense that this is a new suit predicated on original

questions of law or fact. He had ample opportunity

in his initial application for a writ of certiorari to raise

issues of federal constitutional violations aliegedly

perpetrated by Respondent. He chose not to present

them at that time. As a result, any right to review he

may have had, has been exhausted.

4

CONCLUSION

WHEREFORE, for the above reasons, the petition

for writ of certiorari should be denied.

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

DAVID E. NORTHROP

Deputy Chief Counse/

Counsel of Record

JOHN T. WILLIAMS

ANDREW |. SUTTER

Assistant Attorneys General

State Office Tower

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-5026

COUNSEL FOR RESPONDENT,

THE SUPREME COURT OF OHIO