Opposition Brief — Reed v. Terrell

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Supreme Court, U.S.

FILED

oN OCT 21 196

~ JOSEPH F. SPANIOL, JR.

RK

NO. 85-373 | EEE. 20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

CHARLES REED AND ROLAND DUTY,

PETITIONERS

V.

JAMES TERRELL, SUE RAYBOLD, BILL LOGUE, JOE

JOHNSON AND THE STATE BAR OF TEXAS,

RESPONDENTS

ON WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

BRIEF FOR RESPONDENT

JOE JOHNSON

IN OPPOSITION TO CERTIORARI

COUNSEL OF RECORD:

DONALD 0. HALL

HALL & KETTLER, P.C.

504 AUSTIN AVENUE

WACO, TEXAS ~ 76701-2195

(817) 756-4471

4%

TABLE OF CONTENTS

Page

a ge. Ee eo ii

REASONS FOR DENYING THE WRIT... .... l

NO CAUSE OF ACTION ON WHICH FEDERAL

COURT MAY GRANT RELIEF AGAINST THIS

IS By, ae es re 2

re Cree ee eG ee a be She eke 3

TABLE OF AUTHORITIES

CASES — Page

Binge v. Foster, 47 S.W.2d 862. ...... 3

De Los Fuentes v. MacDonald,

oe Cs Ree ee ee a ke ee es 3

District of Columbia Court of

Appeals v. Feldman, 460 U.S. 206 .

[cue ss. koe ee eae es a ee 2

Hagerty v. Succession of Clements,

749 Fed.2d 217 (Fifti. Circuit, 1984) . . 1,4

STATUTES

Sinies. Se it EOS Se ae eee 1

SE Gideon. Se Soe ee Ss eee ee 4

G.5. Db. Ge. We See ssa ek ee 4

Ten. Fee. Come A. SUE. TOO). kc ak es ded

hts.

REASONS FOR DENYING THE WRIT

The rationale of the Petitioners' position to

justify this Court to grant a Writ of Certiorari to

the Fifth Circuit Court of Appeals is that the

Respondents acted in conjunction with each other to

cause Texas Family Code §11.18(a) to be enforced

against them as a class, consisting of husbands and

ex-husbands, in deprivation of their "civil rights"

under 42 U.S.C. §1983. It is fundamentally clear

that “a plaintiff may not seek a reversal of a state

court judgment simply by casting his complaint in the

form of a civil rights action." Hagerty v.

Succession of Clements, 749 Fed.2d 217, 220 (Fifth

Circuit, 1984).

Petitioners further attempt to seek justifica-

tion for the granting of the Writ by alleging that

the state statute is unconstitutional and therefore,

should automatically be eligible for review by this

Court. Once again, it is fundamentally clear to

this Respondent that state court final judgments

cannot be reviewed by this Court until all of the

state appellate remedies have been exhausted.

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed. 2nd 206, 222-

23 (1983). Also, please see the Fifth Circuit's

Opinion in this cause and the cases cited therein

which has been attached to other briefs filed herein

and to which reference is made for all purposes.

NO CAUSE OF ACTION ON WHICH FEDERAL

COURT MAY GRANT RELIEF AGAINST THIS RESPONDENT

This Respondert is the duly elected and

certified District Clerk of McLennan County, Texas.

By Texas statute (RS 1899) and State Constitution

(Art. V, Sec. 9), he is an officer of the court and

is obligated to file and record in his office the

everyday business of the four District Courts in his

county. In the original causes upon which this

a ee

federal appeal is based and in Respondent's official

capacity, he was given certain Orders duly entered by

the State District Courts and he properly filed said

Orders and issued whatever writs and took whatever

other action the Orders required him to take.

Further, at no time did he attempt to interpret or

take it upon himself to enforce Texas Family Code

Ann. §11.18(a) and there is no allegation to this

effect in the Petitioners’ complaint.

This Respondent stands ready at all times to

abide by the Orders of any court having legal

jurisdiction over the operation of his office.

De Los Fuentes v. MacDonald, 85 Tex. 132, 20 S.W.43;

Binge v. Foster, 47 S.W.2d 862.

CONCLUSION

It is this Respondent's opinion that the rules

of law applicable to thts case, federa’, state and

statutory, compel a finding that the application for

Writ of Certiorari sought herein is frivolous on its

face as it relites to him since there is nothing in

the Petitioners' Application to this Court or their

original complaint that is evidentiary or can be

argued on its merits. Hagerty v. Succession of

Clements, supra, 749 F.2d 222. This Respondent has

done nothing to harm the Petitioners herein but has

only performed his duties as required by law.

Therefore, it is submitted to this Court that

the Petition of Writ of Certiorari te tne Fifth

Circuit Court of Appeals should in all things be

denied and should this Court believe it appropriate,

pursuant to 42 U.S.C. §1988 and U.S. Sup. Ct. Rule

49.2, attorneys fees in favor of this Respondent

should be awarded against the Petitioners.

Respectfully submitted,

DONALD 0. HALL

HALL & KETTLER, P.C.

504 Austin Avenue

Waco, Texas 76701-2195

(817) 756-4471

als O, aee

onalid 0. Hall

State Bar No. 08748000

ATTORNEY FOR RESPONDENT,

JOE JOHNSON

CERTIFICATE OF SERVICE

I, Donald 0. Hall, counsel of record for

Respondent, Joe Johnson, do hereby certify that on

this ..¢ day of October, 1985, three (3) copies of

the above and foregoing Brief for Respondent were

served by mail on the following:

Charles Reed, Pro Se

1307 Royal

Waco, Texas 76710

Roland Duty, Pro Se

703 N. Valley Mills

Waco, Texas 76710

Larry 0. Brady

NAMAN, HOWELL, SMITH & LEE

Texas Center

P. 0. Box 1470

Waco, Texas 76/03

ATTORNEY FOR SUE STEPP RAYBOLD

Scott Lyford

P. 0. Box 12548 +

Austin, Texas 78711

ATTORNEY FOR HON. BILL LOGUE

LaNelle L. McNamara

McNAMARA & McNAMARA

500 Republic Bank Tower

Waco, Texas 76701

ATTORNEY FOR JAMES 0. TERRELL

Steven M. Smoot

OFFICE OF THE GENERAL COUNSEL

State Bar of Texas

P. 0. Box 12487

Austin, Texas 78722

ATTORNEY FOR THE STATE BAR OF TEXAS