Opposition Brief — Dallas County v. Crane
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: No. ERO) NOY 15 088
In The é
Supreme Court of the United States
‘4 October Term, 1985
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DALLAS COUNTY, TEXAS, ET AL.,
Petitioners,
v.
STEPHEN C. CRANE,
on behalf of himself
and others similarly situated,
Respondent.
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RESPONDENT'S JOINT OPPOSITION TO
PETITIONS FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR 1 E FIFTH CIRCUIT
ra’
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Doveras R. Larson
Jounston, Larson & TranTHam
8204 Elmbrook Drive, Suite 113
Dallas, Texas 75247
(214) 631-2933
COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333
H1e0
QUESTIONS PRESENTED FOR REVIEW
(In 85-623)
1. Whether a Texas District Attorney is a State of-
ficer whose acts constitute state policy, not county policy,
requiring attorney fees under 42 U.S.C. $1988 to be as-
sessed against the state if Respondent Crane is a prevail-
ing party and prohibiting the assessment of damages under
42 U.S.C. § 1983 because of Prosecutorial and/or Eleventh
Amendment immunity?
2. Whether a misdemeanor justice system which au-
thorizes prosecution by information based on affidavit of
complaint followed by the clerk issuing a capias writ and
further provides an accused the right to a determination of
probable cause at his first appearance before a judicial
officer prior to extended detention is in violation of Texas
statutes and/or the Fourth Amendment?
(In 85-646)
1. Whether a Texas District Attorney is immune
from a civil claim for damages arising from the perform-
ance of his official auties to initiate or present the state’s
case in a criminal prosecution?
2. Whether a Texas District Attorney is a state of-
ficer whose official acts constitute state action and is ac-
cordingly immune from a civil claim for damages under
the Eleventh Amendment to the United States Constitu-
tion?
ii
LISTING OF PARTIES
PETITIONERS, No. 85-623:
Dallas County, Texas
Ben Ellis, Judge, Dallas County Criminal Court No. 1
John Orvis, Judge, Dallas County Criminal Court No.
2
Mike Schwille, Judge, Dallas County Criminal Court
No. 3
Berlaind Brashear, Judge, Dallas County Criminal
Court No. 6
John McCall, Judge, Dallas County Criminal Court
No. 7 (replaced Chuck Miller)
ATTORNEYS FOR PETITIONERS, No. 85-623:
Law Offices of Earl Luna, P.C.
Earl Luna
Robert E. Luna
Mary Milford
PETITIONER, No. 85-646:
Henry Wade, Dallas County District Attorney
ATTORNEY FOR PETITIONER, No. 85-646:
Peter Harlan, Dallas County Assistant Criminal Dis-
trict Attorney
RESPONDENTS:
Stephen C. Crane, on behalf of himself and others
similarly situated
ATTORNEY FOR RESPONDENTS:
Johnston, Larson & Trantham
Douglas R. Larson
INTERESTED PARTIES:
State of Texas ©
Earl Bullock, Dallas County Clerk
L. E. Murdoch, Former Dallas County Clerk
ATTORNEYS FOR INTERESTED PARTIES:
Jim Mattox, Attorney General
Larry King, Assistant Attorney General
Sue LaGarde, Dallas County Assistant Criminal Dis-
trict Attorney
Questions presented for review.
iii
TABLE OF CONTENTS
Parties to the proceedings in the Court of Appeals for
the Fifth Circuit, whose judgments are sought to be
reviewed. (Nos. 85-623 and 85-647)
Grounds for Jurisdiction
Statutes, rules and constitutional provisions involved.
Statement of the case
Summary of Argument
Argument
I.
II.
ITl.
IV.
A
VI.
Request for Attorney’s fees.
Conclusion
There is no reason in law or in fact to grant
Dallas County Eleventh Amendment Immunity...
The Court of Appeals for the Fifth Circuit has
not violated Wade’s prosecutorial immunity.............
District Attorney Wade is a local official and
not a state official.
There are other reasons to justify the result
reached by the Court of Appeals.
The Petitioners actually seek to have this Court
consider the repeal of the Fourth Amendment
in their Petition for Certiorari.
Not all the Petitioners have standing to seek
further appeal by a writ of certiorari.
Pages
1
“I w no eo FE:
iv
TABLE OF AUTHORITIES
Pages
CasEs:
Adams v. Seagler, 112 Tex. 583, 250 S.W. 413
(1923) 12
Adden v. Middlebrooks, 688 F.2d 1147 (7th Cir.
1982) 9
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12
L.Ed.2d 723 (1964) 16
Albrecht v. United States, 273 U.S. 1, 5, 47 S.Ct.
250, 251, 71 L.Ed. 505 (1927) 27
Apton v. Wilson, 506 F.2d 83 (D.C. Cir. 1974) 17
Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977) —... 17
Avery v. Midland County, 390 U.S. 474, 88 S.Ct.
1114, 20 L.Ed. 45 (1968) 10
Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) 21, 22
Blake v. Kline, 612 F.2d 718 (1979), cert. denied 3
447 U.S. 1921, 100 S.Ct. 3011 (1980) 9
Burke v. Hutcheson, 537 S.W.2d 312 (Tex. Civ.
App. Eastland 1976 writ ref. n.r.e.) 15
City of Waco, Texas v. Bridges, 710 F.2d 220 (5th
Cir. 1983), cert. denied — U.S. —, 104 S.Ct. 1414,
79 L.Ed. 741 (1984) 15
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.
2022, 29 L.Ed.2d 564 (1971) 16, 18, 20
Crane v. Texas, 759 F.2d 412 (1985) 766 F.2d 193
(1985) 19, 23, 24, 29
Dommer v. Crawford, 653 F.2d 289 (7th Cir. 1981) ..... 27
Dommer v. Hatcher, 427 F.Supp. 1040 (N.D. In-
diana 1975) 27
vV
TABLE OF AUTHORITIES—Continued
Pages
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39
L.Ed.2d 662 (1974) 11
Fitzpatrick v. Bitzer, 519 F.2d 559 (2nd Cir. 1975)
aff’d in part, rev’d in part, 427 U.S. 445, 96 S.Ct.
2666 (1976) 9
Fouche v. Jekyll Island-State Park Authority, 713
F.2d 1518 (11th Cir. 1983) 9
Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854 (1975) ..26, 27
Giordenello v. United States, 357 U.S. 480, 78 S.Ct.
1245, 2 L.Ed.2d 1503 (1958) 16
Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983) cert.
denied, — U.S. —, 104 S.Ct. 1599 (1984) 16
Hall v. Medical College of Ohio at Toledo, 742 F.2d
299 (1984), cert. denied 105 S.Ct. 796 (1985) ee
Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979) ..... 16
Hander v. San Jacinto Junior College, 519 F.2d
273 (5th Cir. 1975) 9
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727
(1982) 20, 24
Henzel v. Gerstein, et al., 608 F.2d 654 (5th Cir.
1979) 17
Huber Hunt & Nichols v. Architectural Stone Co.,
625 F.2d 22 (5th Cir. 1980) 12
Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984,
47 L.Ed.2d 128 (1976) 16, 17, 23
Jacobson v. Rose, 592 F.2d 515 (9th Cir. 1978) ............... 16
Johnson v. United States, 333 U.S. 10, 68 S.Ct.
367, 92 L.Ed. 436 (1948) 16
Kentucky dba Bureau of State Police, Petitioner
v. James E. Graham, et al., — U.S. —, 105 8.Ct.
3099, 85 L.Ed.2d — (1985) 21, 23
vi
TABLE OF AUTHORITIES—Continued
Pages
Knox v. State, 586 S.W.2d 793 (Tex.Crim.App.
19806)
Korgich v. Regents of New Mexico School of Mines,
582 F.2d 549 (10th Cir. 1978) a
Landman v. State, 97 S.W.2d 264 (Tex. Civ. App.
El Paso, 1936 writ ref’d n.r.e.) 13
Lake Country Estates, Inc. v. Tahoe Reg. Plan,
440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) 11,15
Laje v. RE. Thomason General Hospital, 665 F.2d
724 (5th Cir. 1982) 11
Lincoln County v. Luning, 133 U.S. 529, 20 S.Ct.
363, 33 L.Ed. 766 (1890) 11
Linz v. Eastland County, 39 S.W.2d 599 (Tex.
Com’n. App. 1931) 13
McSurely v. McClellan, 697 F.2d 309 (D.C. Cir.
1982) 16, 17
Macho v. Bryan, 641 F.2d 447 (6th Cir. 1981) ww. 17
Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120,
20 L.Ed.2d 1154 (1968) 18, 20
Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.
1980) 17
Matheson v. Long Island Park Comm’n, 442 F.2d
566 (2nd Cir. 1971) )
Monell v. Department of Social Services, 436 U.S.
658, 98 S.Ct. 2018, 57 L.Ed.2d 681 (1978) 20, 21,
24, 25, 26
Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct.
1785, 36 L.Ed.2d 596 (1973) 6. 71
O’Quinn v. McVicker, 428 S.W.2d 111 (Tex.Civ.
App. Beaumont 1968, ref’d mre.) nc cccccceccccseeneemeeemee 13
vii
TABLE OF AUTHORITIES—Continued
Pages
- Owen v. City of Independence, Mo., 445 U.S. 622,
100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) 21, 25, 26
Prince v. Wallace, 568 F.2d 1176 (5th Cir. 1976) 0. =17
Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983) 0 +=17
Sessions v. Rusk State Hospital, 648 F.2d 1066
(5th Cir. 1981) 9
Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct.
2119 (1972) 28
Sharp v. State, 677 S.W.2d 512 (Tex.Crim.App.
1984) 28
Sykes v. State of California, 497 F.2d 197 (9th Cir.
1974) 17
Taylor v. Kavanaugh, 640 F.2d 450 (2nd Cir. 1981) .... 17
Tradigrawm, Inc. v. Mississippi Port Authority, 701
F.2d 1131 (5th Cir. 1982) 11
Unified School District No. 480 v. Epperson, 583
F.2d 1118 (10th Cir. 1978) 9
U.S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.
2d 598 (1976) 16
Van Ootegham v. Gray, 584 F.Supp. 897 (S.D. Tex.
1984); 628 F.2d 488 (5th Cir. 1980); 640 F.2d
12 (5th Cir. 1981) ; 654 F.2d 304 (5th Cir. en bane
1981), cert. denied 455 U.S. 897, 102 S.Ct. 1255 (1982) 26
Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43
L.Ed.2d 214 (1975) 24
Ybarra v. Reno Thunderbird Mobile Home Vil-
lage, 723 F.2d 675 (9th Cir. 1984) . 17
viii
TABLE OF AUTHORITIES—Continued
Pages
SraTuTEs :
Federal:
28 U.S.C. §1254(1) 2
42 U.S.C. § 1983 2
42 U.S.C. §1988 2
State:
Texas Revised Civil Statutes
Article 1545 13
Article 1546 14
Article 1547 oy
Article 1548 14
Article 1549 14
Article 1555-62 13
Article 1572 12
Article 1573 12
Article 1575 12, 14
Article 1576 13
ROU BOOT hit de. edna tee 13
Article 1578 12
Article 1579 12
Article 1580 .... 14
Article 1581 _.. 12
Article 1603 at a
Article 1644e a sialic deta hailachatig t's csanebadiics
BT SI i iis ci os tS 25
| ix
TABLE OF AUTHORITIES—Continued
Pages
Article 1937 43 25
Article 1937 §5 25
Article 2351 14
| Article 2351 $10 12
Article 2352 14
| Article 2368a-2 13
| Article 2370 . 13
Article 2370b 13
| Article 2370e-3 14
| Article 2370e 13
| Article 2372h 14
Article 2372h-6 14
Article 6252-9b 14
| Texas Revised Civil Procedure
| Art. 33 12
Texas Code of Criminal Procedure
Art. 2.04 .... m 5
IED initiaieicsaccicesanenaeietliahce’ 5
Art. 2.313 ... 14
Be I ieiictentcntnniinarni = 5
Art. 21.22 banialenediigaas 5
Art. 18.17 15
RR 28
Art. 27.03(1) ...... ; 5
x
TABLE OF AUTHORITIES—Continued
Page
CoNSTITUTION :
Federal:
United States Constitution
Amendment Four 2, 16, 26
Amendment Eleven 2, 7, 8, 9, 10, 11, 15
State:
Texas Constitution
Se Tl i 15
Art. 5, §20 : 95
Art. 8, §9 ? 14
Pe Wy UE Saitama ale 13
In The
Supreme Court of the United States
October Term, 1985
fy.
ad
DALLAS COUNTY, TEXAS, ET AL.,
Petitioners,
v.
STEPHEN C. CRANE,
on behalf of himself
and others similarly situated,
Respondent.
fo)
RESPONDENT’S JOINT OPPOSITION TO
PETITIONS FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS |
FOR THE FIFTH CIRCUIT
co)
COMES NOW Respondent STEPHEN C. CRANE,
on behalf of himself and others similarly situated and files
their Brief in Opposition to Petitioners’ petitions for
1
2
Writ of Certiorari, and in support thereof would respect-
fully show the following:
_.%
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GROUNDS FOR JURISDICTION
The Judgment sought to be reviewed was entered by
the United States Court of Appeals for the Fifth Circuit
on May 2, 1985, and is reported at 759 F.2d 412. Peti-
tioners’ respective Petitions for Rehearing and Suggestion
for Rehearing En Bane were denied on July 22, 1985, and
Petitioners’ respective Petition for a Writ of Certiorari
was filed within ninety (90) days of that date.
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1). Respondent questions the standing of some of
the petitioners before this Court and that is discussed
herein.
ff
Ww
STATUTES, RULES AND CONSTITUTIONAL
PROVISIONS INVOLVED
42 U.S.C. § 1983
42 U.S.C. § 1988
Fourth Amendment to the United States Constitution
Eleventh Amendment to the United States Constitution
3
STATEMENT OF THE CASE
The facts stated in both Dallas County, et al. and
Henry Wade’s Petitions for Certiorari are essentially ac-
curate, but both are shaded by counsel to place their cause
in the most favorable light in an attempt to create issues
that do not actually exist. Respondent Crane adds the
following which, when read in conjunction with both Peti-
tioners’ statements of the case more accurately portrays
the true, factual context in which this case arose and was
later developed.
STEPHEN C. CRANE, a practicing lawyer in Dallas
County, Texas, was arrested on April 21, 1980, in Dallas
County, Texas, by City of Dallas police officers, on the
authority of a warrant issued by the Dallas County Clerk.
(r. at 7) Crane was charged with violating Article 43.23
of the Texas Penal Code, ‘‘Distribution of Commercial
Obscenity’’, a misdemeanor. (r. at 5, 13)
Crane’s arrest arose as a result of an investigation
by the Dallas Police Department during March-April 1980,
of a movie house in Dallas, Texas, known as the Crystal
Theater. (r., vol. XI at 120-121) In the course of the
vice investigation, Dallas police officer Buchanan re-
quested and received a copy of the Articles of Incorpora-
tion for a corporation bearing the same or similar name
as the Crystal Theater from the Texas Secretary of State.
(r., vol. XI at 120-121) The Articles of Incorporation had
been filed in the Texas Secretary of State’s office on May
29, 1979. Also in the course of the investigation, another
Dallas police officer, Armando Perez, visited the Crystal
Theater in Dallas, Texas, observed films being shown and
concluded that they were legally obscene. (r., vol. XI
at 223, 231)
4
The Dallas Police identified Crane as a suspect for the
Commercial Obscenity charge solely because the Crystal
Theater Inc.’s Articles of Incorporation named Crane as an
initial director of that corporation. (r., vol. XI at 132,
231-232) The appearance of Crane’s name on the Articles
of Incorporation constituted Crane’s only contact or as-
sociation or dealing with Crystal Theater, Inc., with the
exception of his subsequent resignation as an initial direc-
tor of the corporation in 1979 when the Texas Secretary of
State returned the filed Articles of Incorporation to the
lawyer who had prepared them. (r. at 4) It is common in
Texas corporate practice for initial directors to resign
after the Articles of Incorporation are returned to the
lawyer who prepared and sent them to the Texas Secre-
tary of State. The incorporation was a routine and cleri-
cal task. Crane was totally unaware that in March and
April, 1980, Crystal Theater, Inc., was operating a moving
picture theater in the City of Dallas, Texas. (r. at 4)
Neither the Dallas police nor prosecutor Wade had any
evidence that Crane knew about the ‘‘obscene movies’’ or
even that Crane knew about the theater. Crane’s name
was on the Articles of Incorporation because a lawyer
who shared office space with Crane had placed Crane’s
name on the Articles or Incorporation without Crane’s
prior knowledge or approval.
Without further investigation and based solely upon
the fact that Crane’s name appeared on the Articles, the
Dallas Police Department subsequently sent to the Dallas
County Criminal District Attorney’s office a case report
alleging that Crane was engaged in ‘‘Commercial Obscen-
ity.’’ (r., vol. XI at 154, 155, 223, 231) The Dallas Coun-
ty Criminal District Attorney’s office reviewed the case
report submitted by the Dallas Police and promptly pre-
5
pared a criminal information and accompanying affidavit
(complaint).' The District Attorney’s review constituted
little more than directions to his secretary on which affi-
davit and information form to select and directions to the
secretary to fill in the appropriate blanks in a snap out,
partially preprinted form containing carbon paper that,
when typed, simultaneously prepared the ‘‘affidavit’’ and
an ‘‘information’’. The blanks were filled in with Crane’s
full name, the date of the alleged offense and the appro-
priate conclusionary language from the Texas Penal Code
which constituted the offense of commercial obscenity.
(r., vol. XII at 497) The criminal information and con-
clusionary affidavit charging Crane with commercial ob-
scenity were then filed with the Dallas County Clerk L.E.
Murdock’s office.
Upon receipt of the criminal information and support-
ing conclusionary affidavit from Wade’s office, an assist-
ant Dallas County clerk without any judicial supervision
prepared a capias arrest warrant simply by typing the
name of the accused (Crane) and the charge on a (capias)
arrest form which was then signed or stamped with the
clerk’s signature and affixed with the Couaty Clerk’s seal.
The (capias) warrant was given to the police, which di-
rected the arrest of the accused. (r., vol. XII at 614) The
clerk’s function in issuing the writs was purely ministerial
or administrative in nature. (r., vol. XIII at 616, 618)
Neither the clerk or deputy clerk made any determination
of probable cause before issuing the (capias) arrest war-
, In Texas Criminal Practice, the term “complaint” and ‘af-
fidavit’” are often used interchangeably and are used in that
way in this case. See, Texas Code of Criminal Procedures, Art.
2.04, 2.05, 15.04, 21.22, 27.03(1).
6
rants. Neither the Clerk, L.E. Murdock, nor any of his
deputies had any legal training or legal supervision to
make any sort of probable cause determination. None of
the assistant clerks were assigned to a particular judge
or employed by one. County Clerk L. E. Murdock’s of-
fice followed the same procedure for the issuance of capias
arrest warrants which had been in effect for many years.
(r., vol. XITI at 614,615) This procedure was established
by Wade, and was totally under Wade’s control and super-
vision. This same procedure was followed 800-1000 times
a week in each case involving a misdemeanor, and each
time a warrant was issued. Wade has been the Dallas
County District Attorney continuously since 1951. Vir-
tually all the affidavits filed with the Dailas County Clerk
by Wade’s office supporting the information were con-
clusionary in nature. No ‘‘neutral and detached magis-
trate’’ in the above-outlined procedure determined that
probable cause existed for the issuance of any of these ar-
rest warrants unless one concludes that Wade’s office un-
lawfully assumed that role. (r. at 295)
Crane’s arrest came about as a result of the arrest
warrant procedure described above, on the authority of the
(capias) arrest warrant issued by the Dalias County Clerk.
(r., vol. XII at 171,172) Despite the fact that the Dallas
County Jail sits on top of the Dallas County Courthouse
and Crane was arrested on a weekday when the Courthouse
was open for business; Crane was taken directly to the
Dallas County jail where he spent approximately four
hours until a bail bond was posted for him and he was
released. (r., vol. XXIii ut 728)
On April 28, 1980, after Crane had demanded a trial,
the criminal charges of commercial obscenity were dis-
7
missed at the request of the Dallas County Criminal Dis-
trict Attorney’s office due to insufficient evidence, and be-
eause of the belated discovery of Crane’s lack of connec-
tion with the theater. (r. at 265)
On July 30, 1980, Crane filed this action in the Fed-
eral District Court for the Northern District of Texas,
Dallas Division. (r. at 1) After the District Court had
indicated that the procedure outlined above for the is-
suance of capias warrants was unlawful; Wade issued
directives which had the ultimate effect of changing the
system which then required ‘‘probable cause affidavits’’
and review of each ‘‘probable cause affidavit’’ by a de-
tached, neutral magistrate before any (capias) arrest war-
rant would issue.”
fy.
Vv
SUMMARY OF ARGUMENT
Respondent Crane submits that both petitions for cer-
iorari are frivolous and without merit and neither petition
truly presents this Court with any issue that this Court
has not previously considered and/or settled. Respondent
contends that this Court has already, in effect, determined
that a Texas county is not entitled to immunity pursuant
to the Eleventh Amendment, and in any event, neither peti-
tioner has presented any reason in law or fact for this
Court to extend the protection of the Eleventh Amendment
to Dallas County. Nor has either Petitioner stated any
2 This statement of the case is an expansion of the District
Court’s findings of fact and a further elaboration of the facts
recited by the Court of Appeals at 759 F.2d 414-415.
8
real reason to seriously consider extending the Eleventh
Amendment to Dallas County prosecutor Wade. Wade is
not himself the State of Texas, nor is he a state official
with state-wide authority. In effect, Wade’s prosecutorial
immunity has not been violated because Wade is not pay-
ing Crane’s damages. Dallas County is. Further, Wade’s
responsibility was not bottomed upon his decision to pro-
secute Crane, but because he caused the arrest of Crane
and his class by his establishment of an unconstitutional
system of issuing arrest warrants without probable cause
or probable cause determinations by a detached, neutral
magistrate. Respondent also suggests that the Court of
Appeals for the Fifth Circuit did not only hold Dallas
County responsible because of Wade’s conduct but also
because of the conduct of the County Clerk L. E. Murdock.
Murdock’s office issued the warrants which caused Crane
and his class to be arrested. Respondent also contends
that the petition for certiorari filed by Dallas County, et
al. is defective for two reasons: Respondent believes that
the Dallas County Criminal Court Judges have no stand-
ing to be before this Court and counsel for Petitioner Dal-
las County has apparently misread this Court’s decisions
to sanction the issuance of an arrest warrant without prob-
able cause and without the involvement of a detached, neu-
tral magistrate in the decision to issue a warrant. Instead
of attempting to respond just to the questions that Peti-
tioners assert are reasons for this Court to issue a Writ
of Certiorari to the Court of Appeals for the Fifth Circuit,
Respondent has broken down his brief in response into
six sections, which deal separately with each purported is-
sue raised by the respective petitioners. Fortunately for
the Respondent, the Court of Appeals opinions found at
9
759 F.2d 412 and 766 F.2d 193 remain the best brief in re-
sponse to the Petitioners’ claims.
ra’
Vv
ARGUMENT
I. There Is No Reason In Law Or In Fact To Grant
Dallas County Eleventh Amendment Immunity.
It is very difficult to accurately ascertain what Peti-
tioners are actually saying in their petition in regards to
the Eleventh Amendment issue they insist merits review
by this Court. Several cases have been cited by Petitioners
to the effect that a federal court is required to look to
state law as a source to determine the status of an entity
in relation to the Eleventh Amendment. Respondent does
not quarrel with this proposition. None of the cases cited
by Petitioner Dallas County conflict with the Court of Ap-
peals opinion in this case. Nor does Respondent take any
particular issue with any of them. The Court of Appeals
carefully considered each of Petitioner’s Texas statutory
and Texas case authorities with regard to the Eleventh
Amendment status of Dallas County. Each case cited by
Petitioners Dallas County, et al., was carefully analyzed
3 Blake v. Kline, 612 F.2d 718 (1979), cert. denied 447 U.S.
1921, 100 S.Ct. 3011 (1980); Hall v. Medical College of Ohio at
Toledo, 742 F.2d 299 (1984), cert. denied 105 S.Ct. 796 (1985);
Fouche v. Jekyll Island—State Park Authority, 713 F.2d 1518
(11th Cir. 1983); Sessions v. Rusk State Hospital, 648 F.2d 1066
(5th Cir. 1981); Hander v. San Jacinto junior College, 519 F.2d
273 (5th Cir. 1975); Unified School District No. 480 v. Epperson,
583 F.2d 1118 (1978); FitzPatrick v. Bitzer, 519 F.2d 559 (1975),
affirmed in part, reversed in part 427 U.S. 445, 96 S.Ct. 2666
(1976); Matheson v. Long Island Park Comm’n, 442 F.2d 566
(2nd Cir. 1971); Adden v. Middlebrooks, 688 F.2d 1147 (1982),
and Korgich v. Regents of New Mexico School of Mines, 582 F.2d
549 (10th Cir. 1978).
10
and rejected as requiring Eleventh Amendment protec.
tion for Dallas County.*
Totally absent from Dallas County’s Petition are any
reasons which can be subjected to analysis as to why
a Texas county is entitled to Eleventh Amendment im-
munity. When this case was before the Court of Ap-
peals, Dallas County attempted to claim that a Texas
county is unique and, for that reason, it should be given
Eleventh Amendment protection. The Court of Appeals
correctly rejected this argument because there is really
nothing unique about a Texas county. In any event, this
Court has stated in relation to state law resources in rela-
tion to an Eleventh Amendment claim that a federal court
must look ‘‘beyond simpl[e] ... generalization to make a
‘detailed examination’ of the powers of a county.’’ Moor
v. County of Alameda, 411 U.S. 693 at 719, 93 S.Ct. 1785
at 1860 (1979). Further, the Court of Appeals correctly
pointed out that this Court has already implicitly rejected
Eleventh Amendment immunity for a Texas county in
Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20
L.Ed. 2d 45 (1968). This Court in Avery stated as fol-
lows:
The Texas commissioners courts are assigned some
tasks which would normally be thought of as “legisla-
tive,” others typically assigned to “executive” or “ad-
ministrative” departments, and still others which are
“judicial”. In this regard, Midland County’s Com-
missioners Court is representative of most of the
general governing bodies of American cities, counties,
‘ The Texas Attorney General doesn’t believe that Dallas
County is a state agency. In fact, his position throughout this
litigation was that Dallas County was not entitled to Eleventh
Immunity.
11
towns, and villages. One knowledgeable commentator
has written of “the states’ varied, pragmatic approach
in establishing governments.” R. Wood, in Politics
and Government in the United States 891-892 (A.
Westin ed. 1965). That approach has produced a
staggering number of governmental units—the prelim-
inary calculation by the Bureau of the Census for 1967
is that there are 81,304 “units of government” in the
United States—and an even more staggering diversity.
Nonetheless, while special-purpose organizations
abound and in many States the allocation of functions
among units results im instances of overlap and vacu-
um, virtually every American lives within what he and
his neighbors regard as a unit of local government with
general responsibility and power for local affairs.
In many cases, citizens reside within and are subject
to two such governments, a city and a county. The
Midland County Commissioners Court is such a unit.
390 U.S. at 482-83, 88 S.Ct. at 119-20. [emphasis added]
[footnotes omitted]
The Eleventh Amendment application to counties has
been rejected in several other cases brought before the
Supreme Court. Lincoln County v. Luning, 133 U.S. 529,
20 S.Ct. 363, 33 L.Ed. 766 (1890); Lake Country Estates,
Inc., v. Tahoe Reg. Plan, 440 U.S. 391, 99 S.Ct. 1171 (1979) ;
Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785
(1973); and Edelman v. Jordan, 415 U.S. 651, 667 n.12,
94 S.Ct. 1347, 1358 n.12 (1974) (‘‘a county does not occupy
the same position as a State for the purposes of the Elev-
enth Amendment’’.
In light of the above authority, the federal courts have
formulated several tests or criteria to determine the appli-
cability of the Eleventh Amendment, e.g., Tradigram, Inc.
v. Mississippi Port Authority, 701 F.2d 1131 (5th Cir.
1982), Laje v. R.E. Thomason General Hospital, 665 F.2d
12
724 (5th Cir. 1982) ; Huber Hunt ¢ Nichols v. Architectural
Stone Co., 625 F.2d 22 (5th Cir. 1980). These criteria are:
1. whether the entity has been granted the right to
hold property ;
2. whether the entity has the express authority to
sue and be sued in its corporate name;
3. the extent of its independent management author-
ity;
4. the treatment of the entity by the state court;
5. whether the state is responsible for the entity’s
debt; and,
6. whether the entity and not the state will be pri-
marily responsible for any judgment against it.
The answer to each of these is unquestionably not favor-
able to Dallas County’s position that it is entitled to \twr-
enth Amendment protection.
Under Texas law, a county is given “corporate powers”
and is expressly declared to be “a body corporate and
politic”. Tex. Rev. Civ. Stat. Ann. Art. 1572 (Vernon
1962). In this capacity, a county may sue and be sued in
its own name. Tex. R. Civ. P. 33; Tex. Rev. Civ. Stat. Am..
Arts. 1573, 1578, 1579, 1581 (Vernon 1962). In addition,
the county, and apparently the county alone, is liabie for
all claims against it. Tex. Rev. Civ. Stat. Ann. Arts. 1575
(Vernon 1962) and 2351, §10 (Vernon 1971). Addition-
ally, the county, acting through its commissioners court,
may employ an attorney to assist in the prosecution of
claims and suits and may pay for these services out of
county funds.’ Adams v. Seagler, 112 Tex. 583, 250 S.W.
5 Earl Luna, counsel for Dallas County, et al. herein is not
a county official, but a lawyer hired by Dallas County pursuant
to this authority.
hg PE.
13
413 (1923) ; O’Quinn v. McVicker, 428 SW2d 111, 112 (Tex.
Civ. App., Beaumont 1968, ref’d n.r.e.). Moreover, a con-
tract by the county employing such an attorney would not
bind the State for attorneys fees thereof. Landman v.
State, 97 SW2d 264 (Tex. Civ. App. El Paso 1936, writ
ref’d n.r.e.). At least as to a claim for money allegedly
owing to its general fund—the fund which would satisfy
a judgment in this case—a county is not exempt from a de-
fense of limitations, as the state would be. Linz v. East-
land County, 39 SW2d 599 (° ex.Comm’n.App. 1931, holding
approved).
A Texas county may also take, hold and dispose of
property for county uses, or for uses that serve the public
good. Tex. Rev. Civ. Stat. Ann. Arts. 1576 and 1577 (Ver-
non 1962). County boundaries may be reduced by the State
legislature, but a county may not be abolished altogether.
Tex. Rev. Civ. Stat. Ann, Art. 1545 (Vernon 1962); Tex.
Const. Art. 9, §1. Ifa part of an existing county is to be
added to another county by the State, a vote of the electors
of the counties affected is necessary. Tex. Rev. Civ. Stat
Ann. Art. 1555-62 (Vernon 1962).
A county may own its own buildings, Tex. Rev. Civ.
Stat. Ann. Art. 1603 (Vernon 1962), or it may lease them,
Tex. Rev. Civ. Stat. Ann. Art. 2370 (Vernon 1971). It may
remodel, improve or equip its facilities on its own motion.
Tex. Rev. Civ. Stat. Ann. Art. 2370b (Vernon 1971). Like-
wise it may dispose of these assets by its own volition.
Tex. Rev. Civ. Stat. Ann. Art. 2370e (Vernon 1971). It
is entitled to acquire, purchase or use such personal prop-
erty, appliances or equipment as it deems appropriate.
Tex. Rev. Civ. Stat. Ann. Art. 2368a-2 (Vernon 1962).
14
Counties may enter into contracts, Tex. Rev. Civ. Stat.
Ann. Arts. 1580 (Vernon 1962) and 2351 (Vernon 1971)
and 2370e-3 (Vernon Supp. 1982) and are liable for their
own debt, Tex. Rev. Civ. Stat. Ann. Arts. 1546, 1547, 1548,
1549, and 1575 (Vernon 1962). A county may engage in
commerce with the United States, Tex. Rev. Civ. Stat. Ann.
Art. 2351 (Vernon 1971), or with another county or city in
an adjoining state, Tex. Rev. Civ. Stat. Ann. Art. 2370¢-3
(Vernon Supp. 1985).
Financially, counties are empowered to levy and col-
lect a tax for county purposes. Tex. Rev. Stat. Ann. Art.
2352 (Vernon 1971). Such revenues are maintained in a
separate county treasury. Tex. Const. Art. 8, §9. Also,
the County Commissioner’s court may establish a fiscal
or calendar year for the county. Tex. Rev. Civ. Stat. Ann.
Art. 1644e (Vernon Supp. 1985). The county has author-
ity to formulate rules and regulations governing the work
hours, vacations, holidays, sick leave, medical care, hos-
pitalization, pensions and accident insurance of its em-
ployees. Tex. Rev. Civ. Stat. Ann. Art. 2372h (Vernon
1971). It may establish its own independent civil service
commission and rules. Tex. Rev. Civ. Stat. Ann. Art.
2372h-6 (Vernon Sup. 1985). Moreover, Texas law states
that a county is not to be considered a state agency with
respect to laws governing the conduct of state office.» and
employees. Tex. Rev. Civ. Stat. Ann. Art. 6252-9b (Vernon
Supp. 1985) (entity whose authority is limited to a geo-
graphical portion of the state is not a “state agency”).
In the area of law enforcement, Texas recognizes that
county sheriffs and constables have a separate status from
state officers, and their authority is derived from the coun-
ty, not the state. Tex. Code Crim. Proc, Ann. Art. 2.12 and
Ae eth
15
18.17 (Vernon 1977) ; City of Waco, Texas v. Bridges, 710
F.2d 220 (5th Cir. 1983), cert. denied — U.S. —, 104 8.Ct.
1414, 79 L.Ed. 741 (1984) (the Texas legislature separately
recognized “state or county peace officers” in Art. 18.17 to
indicate the source of the police officer’s power). And
under Art. 18.17, a seizure of personal property by a state
or county officer acerues to the county and the State has
no interest therein. City of Waco, Texas v. Bridges, supra.
Finally, unlike state agencies which have jurisdiction
across political boundaries, Texas counties have no power
or jurisdiction beyond the limits of the county itself. Tex.
Const. Art. 5, 418; Burke v. Hutcheson, 537 SW2d 312
(Tex. Civ. App. — Eastland 1976, writ ref. n.r.e.).
The above provisions strongly indicate that Texas
counties are independent political subdivisions and not an
agency or arm of the state. Most persuasive is the fact
that ultimate financial responsibility for the judgment in
this case is borne not by the state, but by the County itself.
Therefore, Eleventh Amendment protection of the County
is not necessary “in order to protect che state treasury
from liability that would have .. . essentially the same
practical consequences as a judgment against the State
itself.” Lake Country Estates, Inc., v. Tahoe Regional
Planning Agency, supra, 440 U.S. at 401, 98 S.Ct. at 1177.
II. The Court Of Appeals For The Fifth Circuit Has
Not Violated Wade’s Prosecutoria] Immunity.
Contrary to the impression created purposely by both
petitioners, Wade was not held responsible to Crane for
damages because Wade decided to prosecute Crane. Wade
was held liable to Crane because he was found responsi-
16
ble for establishing and maintaining the use of the Dallas
County capias warrant system which failed to include con-
stitutionally mandated Fourth Amendment procedures.
These missing Fourth Amendment procedures require that
an affidavit stating probable cause be submitted to a neu-
tral, detached magistrate before a warrant can issue.
Coolidge v. New Hampshire, 403 U.S. 443 91 S.Ct. 2022,
29 L.Ed.2d 564 (1971); Aguilar v. Texas, 378 U.S. 108 84
S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Giordenello v. U.S., 357
U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); U.S. v.
Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ;
Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 98
L.Ed. 436 (1948).
In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976), this Court held that prosecutors en-
joy absolute immunity from civil liability for actions un-
dertaken in their ‘‘quasi-judicial’’ capacity, which include
initiating a prosecution, presenting evidence to a grand
jury, and representing the government in a criminal trial.
The Supreme Court in Imbler v. Pachtman, supra, ex-
pressly refused to reach the question of whether investi-
gative or administrative duties of a prosecutor are shielded
by absolute immunity, noting that several lower federal
court decisions had held they are not. Not surprisingly,
federal courts since Imbler v. Pachtman have continued to
hold that when a prosecutor is involved in a nonadvocative
or administrative function, such as the role played by
Wade hercin, the prosecutor only enjoys qualified im-
munity. Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983) cert
denied — U.S. —, 104 S.Ct. 1599 (1984); McSurely v.
McClellan, 697 F.2d 309 (D.C. Cir. 1982); Hampton v.
Hanrahan, 600 F.2d 600 (7th Cir. 1979); Jacobson v. Rose,
17
592 F.2d 515 (9th Cir. 1978); Ryland v. Shapiro, 708
F.2d 967 (5th Cir. 1983). Further, the actual participa-
tion by a prosecutor in an illegal arrest or an illegal search
and seizure is not protected by absolute immunity. Mc-
Surely v. McClellan, supra, Marrero v. City of Hialeah,
625 F.2d 499 (5th Cir. 1980) and Apton v. Wilson, 506
F.2d 83 (D.C. Cir. 1974).
The cases® which petitioners allege conflict with the
one at bar, and require Supreme Court intervention, all
involve decisions by the prosecutor in either the initiation
of a prosecution or representing the state in a criminal
proceeding. None of these provide any reason to believe
that the case at bar has been decided by a court of appeals
which was ignorant of Imbler v. Pachtman. The prosecu-,
tor herein created an automatic arrest warrant which had
nothing to do with his decision to prosecute or with his
advocacy in court.
There was simply no basis or probable cause for
Crane’s arrest, and there was no one in Wade’s automatic
arrest warrart system who could insulate Crane (or his
class) from illegal arrest. The mere fact that Crane’s
name appeared on the Articles of Incorporation does not
in and of itself indicate Crane knew anything about the
showing of obscene films by the theater almost a year
after the forming of the corporation. While it may be a
6 ~ eng v. State of California, 497 F.2d 197 (9th Cir. 1974);
Henzel v. Gerstein, et al., 608 F.2d 654 (5th Cir. 1979); Prince
v. Wallace, 568 F.2d 1176 (5th Cir. 1976); Taylor v. Kavanagh,
640 F.2d 450 (2nd Cir. 1981); Ybarra v. Reno Thunderbird Mobile
Home Village, 723 F.2d 675 (9th Cir. 1984); Macko v. Byron, 641
i .2d 447 (6th Cir. 1981); Atkins v. Lanning, 556 F.2d 485 (10th
ir. 1977).
18
good idea in theory for a member of a board of directors
to know everything a corporation does; experience teaches
us otherwise. Crane could not have been charged with
knowledge or responsibility in any event, because Crane
had resigned as a director almost a year before the police
saw the obscene movies. The police were even unable to
explain how they came to the conclusion that the Crystal
Theater was operated by Crystal Theater, Inc.
Wade cannot legitimately claim that he had the author-
ity to make arrest warrant decisions without a detached,
neutral magistrate becoming involved. Mancusi v. De-
forte, 392 U.S. 364, 885 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) ;
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed. 2d 564 (1971).
Respondent contends that the Court of Appeals cor-
rectly stated the following in relation to Wade’s responsi-
bility:
In its Memorandum Order of November 30, 1981,
the trial court asked the defendants for ‘‘concrete
proposals’’ for a new Dallas County system of issu-
ing capias. Id. at 13. The judges and the District
Attorney submitted such proposals; they were filed
with the court on December 9 and 11, 1981, respec-
tively. The District Attorney had begun to make
changes in the system even before this, however. A
A letter from the District Attorney to the Chief of
Police of the City of Dallas, dated July 20, 1981, an-
nounces ‘‘T plan certain changes in the procedure for
the filing of criminal cases with the Dallas County
District Attorney’s Office.’’? A memorandum from
the District Attorney to ‘‘ All Police Departments and
Agencies Filing Cases with the Dallas County District
Attorney’s Office’’, dated September 17, 1981, states
‘‘Certain changes in the procedure for the filing of
criminal cases with the Dallas County District Attor-
19
ney’s Office are presently (sic) being implemented.’’
A letter from the District Attorney to Judge Ellis
of the Dallas County Criminal Court dated Decem-
ber 7, 1981, begins, ‘‘ As a result of the recent decision
by Judge Higginbotham in Cause No. CA3-80-0978-6,
styled Stephen C. Crane versus State of Texas, et al.,
the following is the form of action this office would
like to take — with your cooperation.’’ In none of
these communications is there the slightest indication
that the District Attorney acted other than indepen-
dently; there is no hint of any perceived necessity
by the District Attorney to consult with or invite the
participation of any state official, for example, a mem-
ber of the State Attorney General’s Office. To the
contrary, the record plainly shows that the District
Attorney was alone responsible for the County system
and could change it at will. This fact is implicit in the
trial court’s Order of February 4, 1982, denying in-
junctive relief because {B]Jeginning as early as June
1981, some five months before this court’s Memoran-
dum Order of November 30, 1981, defendants volun-
tarily changed the method used to issue capias in mis-
demeanor cases. Implementation of this change has
proceeded at a steady pace. At all times, defendants
have demonstrated by concrete action their good faith
effort to achieve a sound and legally sufficient system.
Crane v. Texas, 759 F.2d 412 at 429
The Court of Appeals for the Fifth Cireuit did not
directly discuss the prosecutorial immunity issue because
the Court of Appeals determined that Wade was the county
official who was responsible for Crane’s arrest and he
alone established the procedures which led to Crane’s ar-
rest. The Court of Appeals also concluded that Dallas
County would ultimately pay the damages because Wade
20
was acting in his official capacity as a county officer when
the capias arrest procedures were established.’
No reasonable prosecutor,’ in light of Mancusi v.
DeForte, supra, and Coolidge v. New Hampshire, supra,
could have believed that he was a neutral and detached
magistrate that could make a probable cause determina-
tion for the issuance of an arrest warrant. As a prac-
tical matter, Wade’s office was the only agency which
could have attempted to ascertain probable cause under
the challenged system herein, and he did not in any event
even attempt to do that. The challenged system was de-
signed by Wade to avoid a neutral magistrate’s deter-
mination of probable cause by his creation of the automatic
arrest warrant. Without doubt, Wade could have easily
foreseen that the filing of an information and affidavit
by his office through the County Clerk’s office would re-
7 Needless to say, Dallas County is responsible because
Monell v. Department of Public Services, 436 U.S. 568, 98 S.Ct.
2018, 56 L.Ed. 611 (1978) teaches us that an official (Wade) with
policy-making powers renders the entity responsible for the
damages. Texas Law gives Wade the authority to make all de-
cisions for his office of county government.
. The requirement that an arrest warrant not issue except On
probable cause determined by a neutral and detached magis-
trate is such a fundamental and indisputable constitutional and
legal principle which must be included within the ambit of
“clearly established” law envisioned by this Court in Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982). There is no
morass of conflicting law surrounding this essential tenet.
Neither was there substantial confusion in the state of the law
nor contrary legal authority on which Wade could rely at the
time of Crane’s arrest. In the District Court proceedings in the
instant case, the jury found Wade “knew or should have known,
that the procedure followed in the issuing of capias infringed
on a Clearly established constitutional right of Stephen Crane.”
(r. at 1002) Wade’s personal liability is clearly fixed.
21
sult in Crane’s illegal arrest, as well as cause an untold
number of illegal arrests of the class of persons repre-
sented by Crane.
The purpose for the creation of prosecutorial im-
munity, which is to allow the prosecutor to operate with-
out fear of retribution in his decision to prosecute and to
allow the prosecutor to vigorously and fearlessly repre-
sent the public, actually disappears when viewed in the
context of this case. This is so because the Court of Ap-
peals has said that Wade was acting in his official capacity
as a county official and Dallas County will ultimately pay
the damages. Wade cannot legitimately say that he fears
anything if he personally doesn’t have to pay the dam-
ages. Mone’ v. Department of Social Services, 436 U.S.
658, 98 S.Ct. 2018, 57 L.Ed.2d 681 (1978); Kentucky dha
bureau of State Police v. Graham, — U.S. —, 105 S.Ct.
3099, 85 L.Ed.2d — (1985). This position is buttressed by
this Court’s decision in Owen v. City of Independence, Mo.,
445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), where-
in this court determined that qualified immunity or ‘‘good
faith’’ on the part of the offending official was not a de-
fense for the city (county). If the good faith of the city
official in Owen is not an impediment for recovery from
the city, neither should Wade’s dubious claim of prosecu-
torial immunity be an impediment for recovery from Dal-
las County.
III. District Attorney Wade Is A Local And Not A
State Official.
Totally absent from either of Petitioners’ Application
for Certiorari herein are any reasons for stating that pro-
secutor Wade is a state officer other than Baker v. Wade,
22
769 F.2d 289 (5th Cir. 1985). Baker v. Wade was cited for
the proposition that a prosecutor represents the state in a
criminal proceeding and is empowered to intervene in a
federal lawsuit. Respondent does not quarrel with that
proposition because that is true. But that should only be
taken in the abstract sense, because Wade is not himself a
political entity. Wade is just a lawyer representing a
client which in this case happens to be the people of the
State of Texas located in Dallas county. A lawyer who
represents an entity does not himself become the entity
because of his representation.
Wade is clearly a local official and the Court of Ap-
peals for the Fifth Circuit correctly characterized him as
such.
Other and more significant factors, generally
speaking, argue that he is a local official. He is
elected by the voters of his district, usually one coun-
ty. Tex.Const. Art. V, 421. His major powers and
duties—which concern the prosecution of serious
crimes and which he exercises alone and without re-
sponsibility to the State Attorney General, who has
no general prosecutorial powers—are limited to the
territory of his district. He is paid by county funds,
although these are partly reimbursed by the state.
And the significance of the creation of his office by
the State Constitution is diminished by the circum-
stance that other local offices are created by it as
well. See e.g., Article V, §19 (Justice of the peace)
and § 20 (County clerks). In sum, much like the
county itself, his office is a local entity, created by the
State of Texas and deriving its powers from those of
the State, but limited in the exercise of those powers
to the county, filled by its voters, and paid for with its
funds. As for the case in hand, District Attorney
Wade was responsible for the county policy attacked
and conclusively demonstrated his ability to alter it on
his own by doing that very thing.
23
For present purposes, then, we conclude that he
is properly viewed as a county official, elected by its
voters and responsible for its relevant policy. In such
circumstances, we see no injustice in holding the
County responsible for his actions of this sort. Doubt-
less he is also in some senses an officer of the State
(or of the state), at least as ultimately deriving the
powers of his office from that source. But even were
he a State official in every sense, called so in State
law and designated by the State to make policy for its
other creature, the county, our answer would likely
remain the same; county responsibility for violation of
the Constitution cannot be evaded by such ingenious
arrangements. At all events, his immunity or want
of it is of little practical consequence. The joint and
several judgment against him in his official capacity
only and against the county will expend itself on the
county treasury. See, Kentucky, dba Bureau of State
Police, Petitioner v. James E. Graham, et al., — U.S.
—, 105 8.Ct. 3099, 85 L.Ed.2d — (1985).
Crame v. State of Texas, 766 F.2d at 195.
IV. There Are Other Reasons To Justify The
Result Reached By The Court Of Appeals.
Even if one concludes that Wade’s automatic warrant
system comes within the ambit of Imbler v. Pachtman,
supra, there are still reasons for requiring Dallas County
to pay the damages and to uphold the result reached by
the Court of Appeals for the Fifth Cireuit. In the trial
court, Plaintiff Crane sought damages from County Clerk
Murdock as well as Dallas County and prosecutor Wade.
24
Both the County and the clerk were held not to be respon-
sible for the damages by the District Court.2 Both of
these issues were presented to the Court of Appeals. The
Court of Appeals did not mention very much about the
clerk in its opinion, probably because the Court of Appeals
had already determined that Dallas County would ulti-
mately pay the damages, etc. The Court of Appeals quite
clearly meant to make all the Defendants liable to Crane.
‘‘Crane contends that the trial court. erred in holding all
Defendants immune from liability for money damages.
We agree, although for reasons different from those of-
fered by Crane.’’ Crane v. State of Texas, 759 F.2d at
427. County Clerk Murdock is clearly a local county offi-
cial with the power to make policy for his office in accord-
ance with Monell v. Department of Public Services, 436
U.S. 568, 98 S.Ct. 2018, 56 L.Ed. 611 (1978). Murdock’s
9 The jury did find that Murdock acted in “good faith’. (r.
at 1001) It should be noted that the issue presented to the jury
used the subjective “good faith” standard. (r. at 993) In =
of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982), the
issue as presented was incorrect and should be analyzed in
conformity with that opinion. Murdock cannot avoid personal
liability for constitutional violations by claiming ‘good faith’
where the law was clearly establshed. Wood v. Strickland, 420
U.S. 308 (1975). In the instant case, the law and the facts do
not even support a good faith’ immunity defense. Murdock
knew, or should have known, that a warrant of arrest could not
issue without a finding of probable cause by a neutral and de-
tached magistrate. There was no contrary authority upon which
Murdock could have relied causing him to reasonably believe
he had lawful authority to issue warrants. Murdock’s acts were
taken in clear disregard for the constitutional rights of Crane
and those in his class. The record clearly indicates Murdock
issued the warrants only because that was the way it was done
before he became the clerk in 1976 and he just continued the
procedure. Murdock was totally ignorant of the constitutional
limitations on his job and said he relied totally on Wade to
apprise him of any legal problems. (r., Vil 610-626)
25
good faith does not cause any reason to reverse the deci-
sion to require Dallas County to pay the damages. Owen
v. City of Independence, 580 F.2d 925 (8th Cir. 1977) ; re-
manded 438 U.S. 902 (1978) (in light of Monell, supra; on
remand 589 F.2d 335 (8th Cir. 1978) (holding no govern-
mental liability based on good faith defense); rev. 445
U.S. 622, 100 S.Ct. 1398 (1980) (holding that a municipality
has no immunity from liability flowing from its constitu-
tional violations and may not assert the good faith of its
officers as a defense to such liability). Murdock is an
elected official elected by residents of Dallas “ anty only.
Art. 5 § 20, Texas Constitution. Vacancies in the county
clerk’s office are filled by the County Commissioners.
Tex. Rev. Civ. Stat. Art. 1935, Tex. Const. Art.5 $20. The
county clerk takes an oath and posts a bond payable to
the county. Tex. Rev. Civ. Stat. Art. 1937 §3. The pre-
miums on the bond are payable out of county funds. Tex.
Rev. Civ. Stat. Art. 1937 § 5. As exemplified by the status
of the County Clerk under Texas Law, Murdock’s acts
then become the will of the entity (Dallas County) as exer-
cised by the official elected directly by its citizens to per-
form the duties of county clerk. Thus, it is appropriate to
require Dallas County to be responsible for the damage
caused, at least in part, by one of Dallas County’s own
officials.
Moreover, § 1983 was intended not only to provide
compensation to the victims of past abuses, but to
serve as a deterrent against future constitutional de-
privations, as well. [citations omitted] The knowl-
edge that a municipality will be liable for all of its
injurious conduct, whether committed in good faith or
not, should create an incentive for officials who may
harbor doubts about the lawfulness of their intended
26
actions to err on the side of protecting citizens’ con-
stitutional rights. [footnote omitted] Furthermore,
the threat that damages might be levied against the
city may encourage those in a policymaking position to
institute internal rules and programs designed to mini-
mize the likelihood of unintentional infringements on
constitutional rights. [footnote omitted]
Owen v. City of Independence, Missouri, 445 U.S. at 652,
100 S.Ct. at 1416, 63 L.Ed.2d at 694 (1980).
For a further discussion in regard to a Texas county
official’s responsibility under Monell, see VanOotenghem
v. Gray, 584 F.Supp. 897 (D.C. Houston, 1984) ; 628 F.2d
488 (5th Cir. 1980) ; 640 F.2d 12 (5th Cir. 1981); 654 F.2d
304 (5th Cir. en bane 1981), cert. denied 455 U.S. 897, 102
S.Ct. 1255 (1982).
V. The Petitioners Actually Seek To Have This
Court Consider The Repeal Of The Fourth
Amendment In Their Petition For Certiorari.
Petitioners Dallas County, et al. are apparently ask-
ing this Court to repeal the Fourth Amendment of the
United States Constitution. Needless to say, the Fourth
Amendment does not exempt Dallas County from its ap-
plication, nor does it exempt the capias arrest warrant
from its application. Lest the petitioners forget, the
x‘ourth Amendment clearly states that ‘‘. . . no war-
rant shall issue, but upon probable cause ...’’ Not even
Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d
54 (1975) stands for the proposition that an arrest warrant
need not be supported by a ‘‘probable cause affidavit’’ and
further Gerstein does not approve of the dispensing with a
neutral, detached magistrate in the determination of prob-
able cause before a warrant can issne. In truth, Gerstein
on
27
supports Crane’s position, because this Court said in
Gerstein that a prosecutor may not assume that an infor-
mation is in of itself a determination of probable cause.
Id. at 116-118. Further, Justice Powell in Gerstein stated
the following:
..+ In Albrecht v. United States, 273 U.S. 1, 5; 47 8.Ct.
250, 251; 71 L.Ed. 505 (1927), the Court held that an
arrest warrant issued solely upon a United States At-
torney’s information was invalid because the accom-
panying affidavits were defective. Although the
Court’s opinion did not explicitly state that the pro-
secutor’s official oath could not furnish probable
cause, that conclusion was implicit in the judgment
that the arrest was illegal under the Fourth Amend-
ment... . Id. 420 U.S. 117.
Petitioners Dallas County et al. wish this Court to be-
lieve that Gerstein v. Pugh authorizes the issuance of an
arrest warrant without probable cause and without a
probable cause determination before a neutral magistrate,
but only upon the decision of the Dallas County District
Attorney based on a conclusionary affidavit notarized by
him. Petitioners’ apparent claim that a post-arrest deter-
mination of probable cause is acceptable and constitu-
tional in the factual context of this case is not what
Gersteiwm holds. Petitioners’ proposition is so absurd as to
cause Respondent to wonder if Petitioners have read the
same case as Respondent.’
ad The cases of Dommer et al. v. Hatcher, 427 F.Supp. 1940
(N.D. Indiana, 1975) and Dommer v. Crawford, 653 F.2d 289
(7th Cir. 198** -i’ed by Dallas County, et al. as allegedly con-
flicting with ©» case are also based on petitioners wrongfully
held assumptio:; that an arrest without probable cause can be
alleviated by a post-arrest visit to a magistrate.
28
As if the above is not enough, Petitioner Dallas Coun-
ty, et al. wishes this Court to believe that Shadwick v.
City of Tampa 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed2d 783
(1972) has been overlooked by the Court of Appeals and
conflicts with the Court of Appeals opinion herein. This
is patently false. Apparently, Petitioner has failed to note
that the city clerks in Shadwick were supervised by a
judge, and the city clerks in Shadwick were apparently
presented with an affidavit stating probable cause and
were deemed capable of making probable cause deter-
minations. None of these factors are even remotely pres-
ent herein. Further, the Tampa City Charter authorized
the clerks to determine probable cause and that is not the
case here. Know v. State, 586 S.W.2d 793 (Tex.Crim.App.
1980); Sharp v. State, 677 S.W.2d 512 (Tex.Crim.App. en
bane 1984)."
VI. Not All The Petitioners Have Standing To
Seek Further Appeal By A Writ Of Certiorari.
Neither the Orders/judgment rendered by the District
Court, nor the Opinions/order of the Court of Appeals for
the Fifth Circuit give any reason whatsoever for the Dal-
las County Criminal Court Judges, i.e., Ben Ellis, John
Orvis, Mike Schwille, Berlaind Brashear, or John McCall
to further appeal this cause by a writ of certiorari because
i Throughout this litigation, the Petitioner-defendants have
taken the position that the Texas Code of Criminal Procedure
authorizes the county clerk to issue capias warrants without an
indictment. Art. 23.04 of the Texas Code of Criminal Procedure
clearly states the contrary. “In misdemeanor cases, the capias
or summons shali issue from a court having jurisdiction.”
OO
ee a oe
29
nothing has been done to them which would give them any
reason to believe they have been harmed.’ The Court of
Appeals correctly noted the status of the Judges’ appeal
in the following footnote tound at page 421 of the Court’s
Opinion:
‘In any event, the ground of the judges’ appeal is by
no means clear. They have been assessed neither with
damages nor with attorneys’ fees; no declaratory or
injunctive relief has been granted against them. We
are thus at a loss as to what the judges are appealing
from.’’ Crane v. State of Texas, 759 F.2d at 421.
For what appears to be obvious to everyone except the Dal-
las County Criminal Court judges, there simply is no rea-
son for them to seek an application for a writ of certiorari.
tf.
dl
REQUEST FOR ATTORNEY’S FEES
Respondent hereby requests the Court to establish
and award an attorneys’ fee for services performed on this
matter subsequent to the Fifth Circuit’s judgment. In the
alternative, Respondent requests remand to the trial court
for this purpose.
12 Two of the original County Criminal County Judges named
as defendants herein i.e., Tom Price and Harold Entz, appar-
ently elected not to be involved in any appeal either to the
Court of Appeals or to this Court. Perhaps they recognized the
folly of the decision to appeal.
50
CONCLUSION
For the reasons stated above, as well as the reasons
contained in the opinions rendered by the Court of Ap-
peals for the Fifth Circuit, petitioners have failed to pre-
sent any substantial or meritorious reason for granting
their respective applications for certiorari, nor have peti-
tioners stated any reasons to believe that the Court of Ap-
peals opinions herein truly conflict with any other decision
of any of the several Courts of Appeals. Further, petition-
ers have not demonstrated any reason in law to believe
that this Court should exercise its supervisory powers over
the Court of Appeals. Therefore, Respondent requests
that both applications in all things be denied.
Respectfully submitted,
Dove.as R. Larson
JoHunston, Larson & TRANTHAM
8204 Elmbrook, Suite 113
Dallas, Texas 75247
(214) 631-2933
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.