Reply Brief — Chapman v. Luna

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

See

4...

a a |

handed

—

— *

—

basco

Se)

headband

Supreme Court, U.s.

2 FILED

CT 22 1985

No. 85-389 oct

é@Giciidalin SPANIOL, JF

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

JOHN J. CHAPMAN, et al.,

Petitioners,

ROBERT E. LUNA, PH.D., et al.,

Respondents.

On Petition for Writ of Certiorari to the

New Mexico Supreme Court

PETITIONERS’ REPLY BRIEF

BRUCE E. PASTERNACK

BRUCE E. PASTERNACK, P.C.

Two Woodward Center

700 Lomas, N.E., Suite 100

Albuquerque, New Mexico 87102

(505) 842-1800

Attorney for Petitioners

WILSON - EPES PRINTING Co.,. INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............. tae leiaeat ia iiniasligny

POINT 1

THIS COURT SHOULD DISREGARD RESPOND-

ENTS’ BRIEF IN OPPOSITION FOR WRIT OF

CERTIORARI BECAUSE IT IMPERMISSIBLY

ARGUES THE MERITS OF THE CASE .................

POINT 2

EVEN IF IT WERE PERMISSIBLE TO ARGUE

THE MERITS OF THE CASE, THE MATTERS

RAISED BY RESPONDENTS HAVE ALL BEEN

HERETOFORE DISPOSITIVELY DETERMINED

BY THIS COURT IN FAVOR OF THE POSITION

ADVOCATED BY PETITIONERS .........000000220002.....

POINT 3

THE CASES CITED BY RESPONDENTS ARE

SE Ea a a a Beh

IN iseascies lili aie ks cial cdelateiss detetichinineshitencncian

Page

TABLE OF AUTHORITIES

SUPREME COURT CASES

City of Cl *urne v. Cleburne Living Center, 53

CB Ra We Se I rishi ieee cei

Gardner v. Luckey, 423 U.S. 841 (1975) —...............

Hensley v. Eckerhart, 461 U.S. 424 (1983) .............

Maher v. Gagne, 448 U.S. 122 (1980) .........200..

Maine v. Thiboutot, 488 U.S. 1 (1980) ...........22..2....

Metropolitan Life Insurance Co. v. Ward, 53

te RE RRR RE eee ce one ee

Moneli v. New York City Department of Social

Service, 486 U.S. 658 (1978) ...........2...2.....--2.---e

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

MD CUE hc ee

Webb v. Board of Education, 105 S.Ct. 1923

| | SOE See MARL ee EEA alee

White v. New Hampshire Department of Employ-

ment Security, 455 U.S. 445 (1982) -...00002000......

Williams v. Vermont, 153 U.S.L.W. 4659 (1985) ....

OTHER JURISDICTIONS

Estes v. Tuscaloosa County, 696 F.2d 898 (11th

Ce. TED micccentcdcccockicseeraniseecdeaeens cetaaaeiie ets

Founding Church of Scientology of Washington,

D.C. Inc. v. Director, Federal Bureau of Investi-

gation, 459 F.Supp. 748 (D.D.C. 1978) ................

STATUTES

Title 42, United States Code, § 1983 ...............0......

MISCELLANEOUS

I CR I icc liesssclsirccsetintiniieilcbiiasnionsns

Sumapareon Coma rae BG ncn ssc cnntcicn ns

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-389

JOHN J. CHAPMAN, et al.,

Petitioners,

Vv.

ROBERT E. LUNA, PH.D., et al.,

Respondents.

On Petition for Writ of Certiorari to the

New Mexico Supreme Court

PETITIONERS’ REPLY BRIEF

POINT 1

THIS COURT SHOULD DISREGARD RESPONDENTS’

BRIEF IN OPPOSITION FOR WRIT OF CERTIORARI

BECAUSE IT IMPERMISSIBLY ARGUES THE MER-

ITS OF THE CASE

Rule 22 of the Rules governing procedure before this

Court provides that a Respondent may file “an opposing

brief disclosing any matter or ground why the cause

should not be reviewed by this court’. Instead of con-

fining their Brief in Opposition to the sole permissible

issue—whether this Court should grant certiorari—Re-

spondents have improperly filed a Brief on the merits,

prematurely arguing the substantive law. Respondents’

Brief might be proper under Rule 34, after entry of an

order granting certiorari, but it is inappropriate at this

preliminary stage in the proceedings. The only issue

now before this Court is whether to review the decision

below. This Court should therefore disregard Respond-

ents’ Brief in Opposition which addresses the outcome of

review.

POINT 2

EVEN IF IT WERE PERMISSIBLE TO ARGUE THE

MERITS OF THE CASE, THE MATTERS RAISED BY

RESPONDENTS HAVE ALL BEEN HERETOFORE

DISPOSITIVELY DETERMINED BY THIS COURT IN

FAVOR OF THE POSITION ADVOCATED BY PETI-

TIONERS

While Petitioners discuss the merits of the matter with

great reluctance, the Respondents’ Brief in Opposition

requires a brief review of the cases this Court has al-

ready decided.

Respondents allege that Petitioners did not allege or

prove a specific “injury” or seek “any personal relief,

in the form of damages or equitable relief, against Re-

spondents” or allege any personal deprivation of rights.

Brief in Opposition, pp. 5-7. These defenses to the

award of attorney’s fees have been considered, and spe-

cifically rejected, by this Court. Hensley v. Eckerhart,

461 U.S. 424 (1983). Hensley holds that if the suit

provides “some benefit to plaintiffs or some vindication

of their rights”, fees should be awarded. In the instant

case, the benefit sought was the termination of a pro-

gram considered unlawful by Petitioners and the declara-

tion that the ordinance promulgating that program was

unlawful. The New Mexico Supreme Court declared the

ordinance unlawful, the City repealed it, and the program

has been terminated. To say that Petitioners obtained

“some benefit” that they sought would be an under-

statement.

Insofar as Respondents allege that Petitioners needed

to seek damages in order to be awarded fees (Brief in

Opposition at p. 5), this Court has already rejected Re-

spondents’ argument in Monell v. New York City De-

partment of Social Services, 486 U.S. 658 (1978).

Monell stands for the proposition that litigants who bring

a successful equal protection challenge to a municipal

ordinance and obtain a declaratory judgment so hold-

ing are entitled to attorney’s fees. Of accord, Newman

v. Piggie Park Enterprises, 390 U.S. 400, 402 (1967).

Insofar as Respondents claim that attorney’s fees should

be denied because § 1983 was not specifically pled (Brief

in Opposition at p. 6), that argument has been spe-

cifically rejected by this Court and others. Maine v.

Thiboutot, 488 U.S. 1 (1980); Maher v. Gagne, 448

U.S. 122, 129 (1980); and Founding Church of Scien-

tology of Washington D.C. Inc. v. Director, Federal Bu-

reau of Investigation, 459 F.Supp. 748 (D.D.C. 1978).

Insofar as Respondents challenge whether Petitioners

were “prevailing parties”, that argument was specifically

rejected by this Court in Hensley, supra, and White v.

New Hampshire Department of Employment Security,

455 U.S. 445 (1982). Insofar as Respondents claim that

the Motion for Attorney’s Fees was untimely, that ar-

gument was specifically rejected by this Court in White

v. New Hampshire Department of Employment Security,

supra.

POINT 3

THE CASES CITED BY RESPONDENTS

ARE INAPPOSITE

Respondents rely on Gardner v. Luckey, 423 U.S. 841

(1975), for the proposition that the Complaint “must

allege that the plaintiff himself was injured by the con-

duct of the public officials”. Brief in Opposition at 6.

The plaintiffs in Gardner alleged that the State Public

Defender’s offices failed to meet constitutional standards

in the representation of indigents. The Fifth Circuit

upheld the dismissal of the Complaint because no plain-

tiff alleged that he was among the group of people in-

jured by the conduct of the Public Defenders and, even

had there been such an allegation, the appropriate rem-

edy would have been by way of habeas corpus. In the

present case, the Petitioners, as residents of Bernalillo

County, are clearly within the class of people that wouid

have been subject to the program and would therefore

have suffered a deprivation of their right to equal pro-

tection had the program been implemented as originally

created. Additionally, Petitioners had no alternate means

of relief, and the New Mexico Supreme Court did find

the matter within its jurisdiction and granted the relief

requested.

Estes v. Tuscaloosa County, 696 F.2d 898 (11th Cir.

1983), and Webb v. Board of Education, 105 S.Ct. 1923

(1985), cited by Respondents are similarly inappli-

cable to the present case. Estes held that a plaintiff

who could not establish a deprivation of a constitutionally

protected right was not entitled to a § 1983 award. Pe-

titioners, however, have already prevailed on a claim of

deprivation of equal protection. Webb held that attor-

ney’s fees may not be awarded in a § 1983 action for

work done in a prior administrative hearing. Petitioners,

however, seek attorney’s fees only for work done in the

judicial proceedings in this case.

CONCLUSION

The issue raised by the Petition for Writ of Certiorari

is whether a State can declare its constitutional equal

protection provision identical to the correlative federal

provision, yet thereafter sever from that declaration the

matter of entitlement to attorney’s fees for the vindica-

tion of an equal protection deprivation. Respondents have

utterly failed to address that issue. There is a good

reason for their failure; the Opinion of the New Mexico

Supreme Court which makes such a declaration is un-

precedented and illogical. It cannot be supported by case

law or reason. However, if allowed to stand, the Opin-

ion of:the New Mexico Supreme Court will serve as

precedent for a pernicious erosion of the equal protection

clause in direct derogation of cases decided in this Court’s

last term which appear to stand for a growing equal

protection clause. City of Cleburne v. Cleburne Living

Center, 53 U.S.L.W. 5022 (1985); Metropolitan Life In-

surance Co. v. Ward, 53 U.S.L.W. 5399 (1985); and

Williams v. Vermont, 53 U.S.L.W. 4659 (1985).

To avoid such a conflict, which would ultimately in-

crease the burden on this Court and the entire federal

judiciary, the Petition for Writ of Certiorari should be

granted.

Respectfully submitted,