Opposition Brief — Reed v. Terrell

| Supreme Court, U.S.

Bet.

No. 85-373 | oct # 1985

SERPS. SPANIOL, JR.

JOScrrt

CLERK

In The

Supreme Court of the United States

October Term, 1985

fy

VV

CHARLES REED AND ROLAND DUTY,

Petitioners,

JAMES TERRELL, SUE RAYBOLD, BILL LOGUE,

JOE JOHNSON, AND THE

STATE BAR OF TEXAS,

Respondents.

Oo—-

RESPONDENT SUE RAYBOLD’S OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF TEXAS

Oo—

FREDERICK DEB. Bostwick III

Larry O. Brapy

OF

| Naman, Howe ..z, Smiru & Lez, P.C.

Texas Center

P. O. Box 1470

Waco, Texas 76703

(817) 754-1421

Attorneys for Respondent

Sue Raybold

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

‘BEST AVAILABLE COPY

REPLY TO QUESTIONS PRESENTED

The ‘‘questions presented” by petitioners are present-

ed in a slanted, biased, and argumentative fashion, as-

sume facts, misstate the law, and fail to present the actual

factual foundation of this lawsuit, and therefore should

not be considered by this Court.

Specifically, the statute in question, Family Code

§11.18(a), is not arbitrary, and does not appiy only

against men. Further, the claims raised in federal court

would be barred in state court. Further, petitioners seek

relief, declaratory or otherwise, not from enforcement of

a statute, but from state court money judgments rendered

in civil actions which were not appealed but which were

allowed to become final and which are not void. Petition-

ers raised no constitutional issues in state court, but now

ask the federal courts to relieve them of the obligations

and effect of those judgments.

In addition, the ‘‘precedent” asserted by petitioners

is not on point and is in no manner violated by, nor does

it conflict with, the judgments of the district and circuit

courts, which are fully supported by their own precedent.

For these reasons, as well as those discussed below,

the ‘‘questions presented” do not present an issue appro-

priate for review by this Court.

ii

TABLE OF CONTENTS

Reply to Question Presented

Page

Opinion Below

Statement of the Case

Reasons for Denying the Writ

wo —_- — em,

Conclusion

10

iii

TABLE OF AUTHORITIES

Page

Almon v. Sandlin, 603 F.2d 503 (5th Cir. 1979) .......... 2,4, 6

Babcock v. State, 668 S.W.2d 857 (Tex. App.

—Austin 1984, writ ref’d n.r.e.) 6

Cardinale v. Louisiana, 394 U.S. 487, 89 S.Ct. 1161,

22 L.Ed. 2d 398 (1969) .. Rac 6

Chicot County Drainage District v. Baxter State

Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329

(1940) 5

Commonwealth of Massachusetts v. Davis, 140 Tex.

398, 168 S.W.2d 216 (1942), cert. den., 320 U.S.

210 5, 8

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed. 2d 206

I a ala ialiehaeiminenin 2,4, 6

Hagerty v. Succession of Ciements, 749 F.2d 217

(5th Cir. 1984) .... Seca Dr SEN, CR Net 3, 8, 9, 10

Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ.

App.—Houston [14th Dist.] 1979, writ ref’d

a ssaitasorinnrorhieeninionabinicnedbis 6

King v. King, 291 S.W. 645 (Tex. Civ. ee —San

Antonio 1927, writ dism’d) .... oe : 5, 7

Martin v. aa 145 Tex. 639, 201 S.W.2d 810

ala sido ete eeegetcensnssotiepemtoesionensoginaeceinistnet 6

Middleton v. Murff, 689 S.W.2d 212 (Tex. 1985) ........... 6, 7

Migra v. Warren City School District Board of Ed-

ucation, — U.S. —, 104 S.Ct. 892, 79 L.Ed.2d

aS (i388) ................ D2 Ree LS Sn oe A a 7

Olivares v. Martin, 555 F.2d 1192 (Sth Cir. 1977)............ 2

Razatos v. Colorado Supreme Court, 746 F.2d 1429

(10th Cir. 1984) iE cbitccadnanatadenaaacodanene 4

iv

TABLE OF AUTHORITIES—Continued

Page

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct.

149, 68 L.Ed. 362 (1923) 8

Sawyer v. Overton, 595 F.2d 252 (5th Cir. 1979)... 2,3

White v. White, 142 Tex. 499, 179 S.W.2d 503 (1944) .... 6

STATUTES

98 U.S.C. § 1257 3

42 U.S.C. §§ 1983 and 1985 2,3,7

OTHER AUTHORITIES

Annotation: Validity and «ffect of Judgment Based

upon Erroneous View as to Constitutionality or

Validity of a Statute or Ordinance Going to the

Merits, 167 A.L.R. 517, 532 ... 5

No. 85-373

ra’

Vv

In The

Supreme Court of the United States

October Term, 1985

ra’

CHARLES REED AND ROLAND DUTY,

Petitioners,

JAMES TERRELL, SUE RAYBOLD, BILL LOGUE,

JOE JOHNSON, AND THE

STATE BAR OF TEXAS,

Respondents.

Ly

Vv

RESPONDENT SUE RAYBOLD’S OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF TEXAS

fay

Vv

OPINION BELOW

The judgments and opinions in the courts below are

attached as appendices to petitioners’ petition.

STATEMENT OF THE CASE

The statement included in the petition contains ma-

terial largely outside the record, slanted and argumenta-

1

tive presentation of the proceedings below, misstatements

of the state law, facts assumed but not in evidence, sar-

casm, and other improper material. The procedural outline,

relieved of all the foregoing, is essentially correct.

ny

Vv

REASONS FOR DENYING THE WRIT

I.

The Holdings Of The District Court And Court

Of Appeals Are Based On A Long Standing Prin-

ciple That The Federal Courts Are Not Courts Of

Appeal With Powers Of Review Over State Court

Judgments.

Petitioners’ § 1983 claim is no more than an effort to

attack collaterally, and achieve federal court review of,

various final state court orders and judgments rendered

in connection with domestic matters. It has been consist-

ently held that this is impermissible, because federal courts

do not sit in review of state court judgments. Petitioners’

remedy, if they had a complaint with the state court judg-

ments on grounds of unconstitutionality of the underlying

statute, was to appeal through the Texas state courts and

apply from there to this Court for writ of certiorari. Their

remedy was not to file a separate federal suit seeking re-

lief from those judgments. District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1803, 75

L.Ed. 2d 206, 222-23 (1983); Olivares v. Martin, 555 F.2d

1192, 1195 (5th Cir. 1977) ; Almon v. Sandlin, 603 F.2d 503,

506 (5th Cir. 1979); Sawyer v. Overton, 595 F.2d 252 (5th

Cir. 1979).

3

Petitioners have sought to disguise their efforts to

achieve review of the final state court judgments by char-

acterizing their suit as a § 1983 action for deprivation of

civil rights. It has been consistently held that ‘‘a plain-

tiff may not seek a reversal of a state court judgment sim-

ply by casting his complaint in the form of a civil rights

action.” Hagerty v. Succession of Clements, 749 F.2d 217,

220 (Sth Cir. 1984); Sawyer v. Overton, supra, 595 F.2d

at 252.

Petitioners seck relief from the final state court judg-

ments on the basis that the statute on which it was based

is void. Relief from final judgments is not available on

this basis.

Petitioners allowed the challenged judgments for at-

torney’s fees to be rendered against them without raising

a question as to the constitutionality of the underlying

statute. They allowed those judgments to become final

and, for the most part, to be enforced. Those judgments

were not void. Even were Family Code § 11.18(a) to be held

invalid in a subsequent ruling in another forum, this would

have no effect on the binding nature of those judgments.

There is no procedural or legal basis for this Court to

review those judgments, and no basis for review of any

issue petitioners seek to raise, as no determination con-

cerning the constitutionality of the underlying statute can

have any effect on the final state court judgments against

petitioners.

The sole method for seeking review of and relief from

a state court judgment is to appeal to the state court of

last resort and from there seek a petition for writ of cer-

tiorari to this Court. 28 U.S.C. § 1257; Hagerty v. Sue-

cession of Clements, supra, 749 F.2d at 220: ‘To the extent

that there was any constitutional error in the [state]

court’s decision, sole recourse ... was to the United States

Supreme Court, not to federal district court.”

Because this case is an effort to achieve federal court

review of final and unappealed state court judgments, not

properly, by application for writ of certiorari, but threugh

a separate and collateral lawsuit, the lower courts were

correct in dismissing this action, and there is no basis

whatsoever for review of those courts’ decisions by this

Court.

IT.

The District Court’s Dismissal Is Consistent With

Other Fifth Circuit Cases, Holdings Of The United

States Supreme Court, And State Law.

Petitioners assert as a basis for review by this Court

that the attack made in district court on the final state

court judgments would not be precluded if asserted in

state court and so is not precluded in federal court. They

argue that (1) the state court judgments are void; (2)

under state law may be collaterally attacked at any time;

and (3) so may be collaterally attacked in federal court.

Petitioners’ argument suffers from several infirmities.

A state court judgment may not be reviewed by a fed-

eral district court. Review of a judgment of a state court

of last resort is possible only in the United States Supreme

Court. District of Columbia Court of Appeals v. Feldman,

supra, 460 U.S. at 482; 72 L.Ad. 2a at 222-23; Almon v.

Sandlin, supra, 555 F.2d at 1196; Razatos v. Colorado Su-

preme Court, 746 F.2d 1429, 1432 (10th Cir. 1984).

i>) |

However, petitioners have not sought review of the

decisions of the highest state court, but simply of state

trial court judgments, which were not appealed and be-

came final. Petitioners made no effort to appeal the state

court judgments; however, they now seek relief from the

federal courts liberating them from the effects of those

judgments. Because petitioners did not take the steps

available to them in the state courts to attack the judg-

ment they may not complain in another forum of matters

that should have been raised there.

Petitioners contend that under Texas law a ‘‘void”

judgment can always be attacked at any point in any court,

and that the district court’s dismissal of their suit violates

this policy. Petitioners are incorrect in their basic premise.

A judgment is based on a statute later declared to

be unconstitutional is not rendered ‘‘veid.” King v. King,

291 S.W. 645 (Tex. Civ. App.—San Antonio 1927, writ

dism’d). It is merely erroneous and is binding unless

and until regularly set aside or reversed. Commonwealth

of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216,

220 (1942), cert. den., 320 U.S. 210. See Annotation: Val-

idity and Effect of Judgment Based upon Erroneous View

as to Constitutionality or Validity of a Statute or Ordin-

ance Going to the Merits, 167 A.L.R. 517, 532. In Chicot

County Drainage District v. Baxter State Bank, 308 U.S.

371, 60 S.Ct. 317, 84 L.Ed. 329 (1940) this Court held that

the existence of a statute which has been declared uncon-

stitutional is an operative fact which cannot be ignored.

™ e effect of its unconstitutionality cannot be determined

‘amply by applying ‘‘retroactive invalidity.” Petitioners

ae a ne eT

cite no authority for the proposition that such a judgment

is void.

If a court has jurisdiction of parties and subject mat-

ter, the judgment is not void, no matter how erroneous it

may be. Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810,

812 (1947). If a collateral attack is to be successful the

record must affirmatively reveal a jurisdictional defect.

White v. White, 142 Tex. 499, 179 S.W.2d 503, 506 (1944).

There has been no suggestion that the state district courts

had no jurisdiction.

Moreover, the Texas Supreme Court has recently held

that an arguably ‘‘void” judgment must be attacked by

appeal or bill of review, and has rejected the concept that

a void judgment may be attacked in any manner at any

time. Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985).

Under both Texas and federal law, the issue of the

constitutionality of a statute can be waived if not raised

in the lower court. District of Columbia Court of Appeals

v. Feldman, supra, 460 U.S. at 482 n. 16, 75 L.Ed.2d at 223

n. 16; Cardinale v. Louistana, 394 U.S. 487, 438, 89 S.Ct.

1161, 22 L.Ed.2d 398, 400 (1969) ; Almon v. Sandlin, supra,

603 F.2d at 506. Babcock v. State, 668 S.W.2d 857, 861 n. 4

(Tex. App.—Austin 1984, writ ref’d n.r.e.); Jackson v.

Leonard, 578 S.W.2d 879, 882 (Tex. Civ. App.—Houston

[14th Dist.] 1979, writ ref’d n.r.e.). Petitioners seek review

and expunction of the judgments of the state district courts

on grounds of unconstitutionality but did not raise that

ag

ground at any point in the trial court or on direct appeal

from those judgments. Even if this collateral proceeding

attacking those judgments were permissible, which it is

not, the issue of constitutionality has been waived.

Petitioners, citing a. ‘‘precedent” Migra v. Warren

City School District Board of Education, — U.S. —, 104

S.Ct. 892, 79 L.Ed.2d 56 (1984), argue that in federal court

a state court judgment is to be given only that preclusive

effect it would have in state court.

In this case, the original judgments rendered in state

district court, and allowed to become final without appeal,

would clearly have precluded a subsequent effort in state

court to avoid the judgments. Middleton v. Murff, supra,

689 S.W.2d at 213; King v. King, supra, and the cases au-

thorizing a waiver of the constitutionality issue by failure

to raise this issue in the initial proceedings.

For these reasons this Court should decline to review

this case.

ITI.

Federal Declaratory Relief Is Not Available To

Protect An Individual From Enforcement Of A

Final Judgment Rendered In State Court.

Petitioners contend that they are attacking the con-

stitutionality of Family Code § 11.18(a). However, an an-

alysis of their complaint and the arguments made in the

Fifth Circuit and in this Court shows clearly that peti-

tioners, though purporting to assert a $1983 claim, in

reality seek nothing more than relief from money judg-

ments rendered in state district court in civil cases by

securing a ruling that such judgments are unconstitu-

‘tional, hence null and void.

The authorities cited above establish that the federal

courts do not sit as courts of appeal to review final state

court judgments, particularly those in civil cases from

which no appeal was taken to a higher state court. See

also, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct.

149, 68 L.Ed. 362 (1923). Petitioners cite no cases as au-

thority for their argument that federal declaratory relief

is available in a case such as this.

_ The alleged ‘‘constitutional” claims presented by pe-

titioners were ‘“‘inextricably intertwined” with the state

court’s judgments. ‘‘[T]herefore the district court could

not have properly reviewed the state court decision.”

____Hagerty v. Succession of Sawyer, supra, 749 F.2d at 220.

Further, petitioners do not now face enforcement of

an allegedly void statute, but of valid final judgments ren-

dered by state district courts whose jurisdiction has not

been questioned, and in which the constitutionality of the

statute was not challenged. [ven a holding et this point

that Family Code § 11.18(a) is unconstitutional would not

operate retroactively to invalidate final state court judg-

\ ments based on that legislation. Commonwealth v. Davis,

supra, 168 S.W.2d at 220.

As a result petitioners were not entitled to prospec-

tive declaratory relief in the district and circuit courts,

which could only have taken the form of an order ho:ding

the judgments to be null and void. As shown above, the

final and unappealed state court civil judgments for money

damages are not void, and cannot be expunged by declar-

atory or other relief by the federal courts.

IV.

The Lower Courts Ruling On Petitioners’ Claims

Against The State Bar Of Texas Was Correct.

The circuit court did not rule that petitioners’ claim

__against the State Bar of Texas was ‘‘not actionable under

42 U.S.C. §§ 1983 and 1985.” It ruled correctly that this

claim, seeking to assert an antitrust violation, has no merit.

Petitioners have not alleged or shown that they were

damaged, or their civil rights were violated, by any action

of the State Bar of Texas. There is no suggestion that

either of the respondents who secured judgments for at-

torney’s fees against petitioners attended any State Bar

seminar or was influenced by State Bar activity. Petition-

ers have failed to allege or demonstrate causation and as

a result, in addition to all the other reasons discussed

above, their claims have no merit.

V.

The Court Should Award Attorney’s Fees To Re-

spondent Because Petitioners’ Claims Are Friv-

olous.

Under Rule 49(b) this Court has authority to award

damages to a respondent when a petition for writ of cer-

tiorari is frivolous. A proceeding is frivolous when it in-

volves legal points not arguable on their merits. Hagerty

v. Succession of Clements, supra, 749 F.2d at 222.

The rules of law controlling disposition of this case

are well-settled and supported by precedent in this Court

as well as the Fifth Circuit and state courts. Petitioners

have cited no authority on point, no cases establishing a

10

legitimate conflict with the relevant decision, and no

basis for a finding of a departure from accepted judicial

standards—in short, no grounds for the granting of their

application.

The history of this proceeding has been one of harass-

ment of respondents, frivolous claims, and continued ef-

forts by petitioners to avoid their legitimate obligations.

They have ignored the procedures available to them to

seek relief from judgments with which they are unhappy,

have disregarded precedent that clearly demonstrates the

impropriety of this proceeding, have been reprimanded by

the Fifth Circuit on oral argument, and still have per-

sisted in filing an Application in this Court.

As a result, as in the very similar case of Hagerty v.

Succession of Clements, supra, this Court should award

respondent compensation in the form of a reasonable at-

torney’s fee incurred in responding to the petition.

[

Vv

CONCLUSION

For the reasons discussed above the Court should

refuse to grant a writ of certiorari in this case.

Respectfully submitted,

FreperIcK DEB. Bostwick III

Larry O. Brapy

OF

Naman, Howe tz, Smiru & Les, P.C.

Texas Center

P. O. Box 1470

Waco, Texas 76703

(817) 754-1421

Attorneys for Respondent

Sue Raybold