Opposition Brief — Holloway v. Walker

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Supreme Court, U.S,

FILED

- NOV & 196%

No. 85-570

JOSEPH F. SPANAOL, JR.

CLERK

In The

Supreme Court of the United States

October Term, 1985

PAT S. HOLLOWAY,

Petitioner,

vs.

JUDGE DEE BROWN WALKER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENT JUDGE DEE BROWN WALKER’S

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ra’

KENNETH L, KING

Bruce W. CLaycomMBE

Jones, CLaycomMBE & Kina

2626 LTV Tower

1525 Elm Street

Dallas, Texas 75201

(214) 954-0123

Attorneys for Respondent

Judge Dee Brown Walker

November 4, 1985

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

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“

QUESTION PRESENTED

Whether the Fifth Cireuit Court of Appeals erred

when it held that Respondent Judge Dee Brown Walker

was judicially immune from a §1983 action for damages

because the acts of Judge Dee Brown Walker were judicial

acts, performed when Judge Walker had subject matter

jurisdiction of the matter pending before him?

TABLE OF CONTENTS

QUESTION PRESENTED .

INDEX OF AUTHORITIES . 0.

STATEMENT OF THE CASE .........

REASONS FOR DENYING THE WRIT

CONCLUSION .

lil

INDEX OF AUTHORITIES

Pages

CASES :

Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872) .......... 2,6

Dennis v. Sparks, 449 U.S. 24 (1980) ccc ccccscsscsssseeseeeee 3

Holloway v. Walker, 765 F.2d 517 (5th Cir. 1985) ...... 4,5,6

Hartford Acc. & Ind. Co. v. Farrell, 107 S.W.2d

442 (Tex. Civ. App.—Ft. Worth, 1937 writ dism’d) 5

Humble Exploration Co., Inc. v. Walker, 641 S.W.

2d 941 (Tex. App.—Dallas, 1982 writ ref’d n.r.e} ..... +

McHenry v. Bankers’ Trust Co., 206 S.W. 560

(Tex. Civ. Apr —Galveston, 1918 writ ref’d) ............... 5

Pierson v. Ray, 38, U.S. 547 (1967) 2

Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980),

cert, dented, 451 U.S. 939 (1981) 3, 6

Stump v. Sparkman, 435 U.S. 349 (1978) ccc 4,5

Turner v. Raynes, 611 F.2d 92 (5th Cir. 1980) 5

Umted States v. Carver, 260 U.S. 482 (1923) ...... ease. 3

Ex Parte Virgmia, 100 U.S. 339 (1879) cee 7

STATUTES :

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7, ae, te, oe, Ae. AX. 2 5

No. 85-570

In The

Supreme Court of the United States

October Term, 1985

ray

PAT S. HOLLOWAY,

Petitioner,

VS.

JUDGE DEE BROWN WALKER,

Respondent.

ray

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ra’

RESPONDENT JUDGE DEE BROWN WALKER’S

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ray

Respondent Judge Dee Brown Walker respectfully re-

quests the Court to deny the petition for a writ of cer-

tiorari sought to overturn the opinion of the Fifth Circuit

Court of Appeals in this case.

STATEMENT OF CASE

Humble Exploration Company, Inc. is now known as

HECI Exploration Company, Ine. (‘‘Humble’’). Although

Humble and Sterling Pipeline Company were parties to

the original district. court action and to the appeal in the

Fifth Circuit, they have not petitioned for a writ of cer-

tiorari. Petitioner Pat S. Holloway is no longer the own-

er of the stock of either of the companies.

After the Fifth Cireuit’s decision in this case, the Dis.

trict Court for the Northern District of Texas granted

summary judgment in favor of Judge Walker on all the

plaintiffs’ claims under § 1983. That decision has been

appealed by Petitioner Pat S. Holloway. The appeals of

Humble and Sterling Pipeline Company were dismissed

by the F?*th Cireuit at the request of Humble and Sterling

Pipeline Company on August 12, 1985. Petitioner Pat 8.

Holloway’s motion for reconsideration was denied on Sep-

tember 16, 1985.

~~ ---——— -Q- ——--—- —--

REASONS FOR DENYING THE WRIT

1. All acts of Respondent Judge Dee Brown Walker

alleged to have damaged Petitioner were ‘‘judicial

acts’’.

Federal law has clearly established that judges of

courts of general jurisdiction are absolutely immune from

monetary liability ‘‘for their judicial acts, even when such

acts are in excess of their jurisdiction, and are alleged to

have been done maliciously or corruptly.’’ Bradley v.

Fisher, 80 U.S. (13 Wall.) 335, 351 (1872). It is also

established that judicial immunity is in no way diminshed

in a proceeding under 42 U.S.C. § 1983. Prerson v. Ray,

386 U.S. 547 (1967).

The Fifth Cireuit Court of Appeals was correct in de-

ciding Respondent Judge Walker had absolute judicial im-

munity for the conduct alleged in the civil rights com-

plaint against the judge. The Fifth Cireuit correctly re.

lied on Dennis v. Sparks, 449 U.S. 24 (1980). In Dennis v.

Sparks the essential claim of plaintiff was that an ‘‘in-

junction had been corruptly issued as the result of a con-

spiracy between the judge and the other defendants... ”’

Id, at 27. This court stated, ‘‘The courts below concluded

that the judicial immunity doctrine required dismissal of

the § 1983 action against the judge ...., and as the case

comes to us, the judge has been properly dismissed from

the suit on the immunity grounds.’’ 7d. at 28.

Petitioner argues, however, that the Fifth Cireuit has

placed too much reliance on Dennis v. Sparks and ~* yuld

follow the Ninth Cireuit case of Rankin v. Howard, 633

F.2d 844 (9th Cir. 1980), cert. denied, 451 U.S. 939 (1981),

apparently because a writ of certiorari was denied that

case by this Court. ‘The denial of a writ of certiorari

imports no expression of opinion upon the merits of the

case, as the bar has been told many times.’’ United States

v. Carver, 260 U.S. 482, 490 (1923).

lurthermore the Rankin case is easily distinguished

from the case before the court. In Rankin the Ninth Cir-

cuit stated:

If, as alleged, Judge Zeller knew the jurisdictional

allegations to be fraudulent, or if valid Kansas stat-

utes expressly foreclosed personal jurisdiction over a

proposed ward in ex parte proceedings for temporary

guardianship, then the judge acted in the clear and

complete absence of personal jurisdiction. If his acts

were part of a conspiracy, he is properly held respon-

sible for the consequences.

In view of the suggested complete lack of jurisdiction, the

Rankin case may be viewed as correctly decided because it

remanded the case for further factual inquiry on that ts-

sue since there was evidence in the record suggesting that

Judge Zeller knew he had no jurisdiction in the case.

2. All acts of Respondent Judge Walker were not

performed in the clear absence of all jurisdiction.

In the instant case the Fifth Cireuit has decided cor-

rectly that Judge Walker had subject matter jurisdiction

over the proceedings at all times. 765 F.2d at 530-531; Ap-

pendix to Petition for Certiorari at B-14, 15.

Again Petitioner argues that the Fifth Cireuit has

misconstrued Stump v. Sparkman, 435 U.S. 349 (1978)

which held that absolute judicial immunity does not extend

to acts performed in the clear absence of all jurisdiction.

However, as this Court pointed out, the term ‘‘jurisdic-

tion” must be construed broadly where the issue is the in -

munty of the judge. Jd. at 357.

Petitioner contends that. the Dallas Court of Appeals

decision expressly informed Judge Walker of his lack of

jurisdiction to continue the receivership. Petitioner fails

to mention that the receivership to which the Dallas Court

of Appeals addressed itself was the receivership of

Humble, a company which is not a party to this petition.

The receivership over the assets of Petitioner Pat S. Hol-

loway was not dissolved. The court of appeals state?:

Appeals from the appointment of temporary receivers

of Sterling and Holloway are still pending in this

court and such appointments have not been vacated

by this court. Accordingly, the petition for writs of

prohibition of Sterling and Holloway are denied. ©

Humble Exploration Co., Inc. v. Walker, 641 S.W.2d 941,

9 (Tex. App.—Dallas, 1982 writ ref’d n.r.e.) ; Appendix to

Petition for Certiorari at C-4.

furthermore as the Fifth Circuit pointed out, the writ

of prohibition issued by the Dallas appellate court ‘‘did not

purport to determine that Walker’s court was without gen-

eral subject matter jurisdiction ...’’ 765 F.2d at 530; Ap- —

pendix to Petition for Certiorari at B-14. And as the

court pointed out in footnote 4, ‘‘[T]he Texas Supreme

Court does not consider a judge to be exposed to suit un-

der Texas law merely because he would be subject to a

mandamus order.”’

Under Texas law, a district court is one of general

jurisdiction and is responsible for the actions of any re-

ceiver it appoints and the affairs of any business over

which a receiver has been appointed, Tex. Rev. Civ, Stat.

Ann., Art 2297; Hartford Acc. & Ind, Co, v. Farrell, 107

S.W.2d 442 (Tex. Civ. App.—Ft. Worth, 1937 writ

dism’d); Mcilenry v. Bankers’ Trust Co., 206 S.W. 560

(Tex. Civ. App.—Galveston, 1918 writ ref’d). Judge

Walker’s decisions with regard to the operation of the

business of Humble were judicial acts.

The quoted language from 7'urner v. Raynes, 611 F.2d

92 (5th Cir. 1980) contained in the petition for certiorari is

misleading and taken out of context. Turner involved a

court of limited jurisdiction, a justice court. The quoted

language was deseribing th* limitation of judicial im-

munity of the judge of a court of limited jurisdiction. As

pointed out by both the Yurner court and this court in

Stump v. Sparkman, 435 U.S. 349 (1978), a court of gen-

eral jurisdiction, such as the court of Judge Walker, is

quite another matter.

3. The efficient a¢~inistration of justice is furthered

by denying the pe’ ’-n for certiorari because of the

fundamental policier underlying absolute judicial im-

munity.

The Fifth Cireuit wrote that even if the case before it

were one of first impression, it would decline to follow

Rankin v. Howard, supra, because it was ‘“‘inconsistent

with the fundamental policies underlying judicial im-

munity’’. 765 F.2d at 527; Appendix to Petition for Cer-

tiorari at B-11.

The reasons enumerated for the necessity of judicial

immunity by this Court in Bradley v. Fisher, 80 U.S. (13

Wall.) 335 (1872) are no less valid 113 years later. Those

are:

1) a judge must be able to act upon his own convic-

tions;

2) the competing interests and controversy inherent

in a contest before a court make it likely the losing

party may ascribe malevolent motives to the court;

3) if judges are faced with the prospect of damage

actions, they may be driven to distractive self-protec-

tion devices ;

4) remedies such as appeal or impeachment decrease

the need for private rights of action; and

5) the ease of alleging bad faith makes a qualified

‘*good faith’’ immunity worthless.

Bradley, 80 U.S. (13 Wall.) at 347-54. The Fifth Cireuit

suggests that a sixth factor is the need for finality. 765

F.2d at 528; Appendix to Petition for Certiorari at B-12.

There is little difference between the ease of alleging

‘‘had faith’’ and the ease of alleging conspiracy or bribery.

In fact all Bradley factors retain their viability in cases

of the sort before the court. Id.

4. Respondent Judge Walker did not violate any min-

isterial duty.

Petitioner’s ministerial act argument is no more than

his ‘‘non-judicial acts’’ argument in new garb and still

does not pass muster. In Ez Parte Virginia, 100 U.S. 339

(1879), (a criminal habeas corpus case) the court dis-

tinguished ‘‘ministerial acts’’ from ‘‘judicial acts’’.

Whether the act done by him was judicial or not is to

be determined by its character, and not by the charac-

ter of the agent. Whether he was a county judge or

not is of no importance. The duty of selecting jurors

might as well have been committed to a private person

as to one holding the office of a judge. It often is

given to county commissioners, or supervisors or as-

sessors. In former times, the selection was made by

the sheriff. In such cases, it surely is not a judicial

act, in any such sense as is contended for here. It is

merely a ministerial act, as much so as the act of a

sheriff holding an execution, in determining upon

what piece of property he will make a levy, or the act

of a roadmaster in selecting laborers to work upon the

roads.

The Writ of Prohibition issued to Judge Walker concerns

conduct which only a judge is authorized to perform and

is therefore by its character judicial conduct. This Court’s

distinction makes it clear that. acts that can only be per-

formed by a district judge are not ministerial acts.

CONCLUSION

For the above-enumerated reasons, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

KENNETH L. Kine

Bruce W. CLaycoMBE

JONES, CLaAYcoMBE & KING