Opposition Brief — Holloway v. Walker

iz

No. 86-271 |

In The

Supreme Court of the United States

OCTOBER TERM, 1986

PaT S. HOLLOWAY,

Petitioner,

Vv.

JUDGE DEE BROWN WALKER, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS, THE

BROWNING INTERESTS AND R. JACK AYRES, JR.

Thomas V. Murto III

4350 Beltway Drive

Dallas, Texas 75244

(214) 991-2222

COUNSEL OF RECORD FOR

BROWNING INTERESTS

EDWIN E. WRIGHT, III

Stradley , Schmidt, W. JAMES KRONZER

Stephens & Wright 1001 Texas Avenue

One Campbell Centre Suite 1030

Dallas, Texas 75206 Houston, Texas 77002

(214) 696-4880 (713) 236-1722

ADDITIONAL COUNSEL COUNSEL OF RECORD FOR

For R. JACK AYRES, JR. R. JACK AYRES, JR.

i

/

QUESTIONS PRESENTED

1. Can an unsuccessful state court defendant obtain a

review of the adverse state court proceedings in the district

courts of the United States by bringing suit under 42 U.S.C.

§ 1983 alleging denials of due process?

2. Does the Parratt-Hudson rule apply to an alleged

denial of due process in a state court trial when the state

provided appropriate appellate review procedures?

li

SUPPLEMENT TO PARTIES TO

THE PROCEEDING

In addition to the list of individual defendants listed in |

the Petition for Writ of Certiorari, Respondent Jane H.

Browning was sued individually and as Co-Independent

Executrix and Co-Trustee of the Estate of William W.

Browning, Jr., Deceased. Respondent Michael G. Starnes

was sued individually and as Co-Independent Executor of

the Estate of William W. Browning, Jr., Deceased, and as

Trustee for Katherine Louise Browning Cook, Averille

Adams Browning Dawson, William Webb Browning, III,

Winifred Fallon Browning Vaughn, and Robert Holland

Browning. Respondent R. Jack Ayres, Jr., was sued individ-

ually and as a professional corporation.

ill

TABLE OF CONTENTS

Page

ea sab uWid esas eseeresnsecees i

Supplement to Parties to the Proceeding .......... ii

es rein spa eee ores scnnee ess iii

EE Pe iv

er LS is sig one a'e buses veces 2

ELIE LEE EE 2

Reasons for Denying the Writ .................... 11

I. The Lower Federal Courts Have No

Jurisdiction to Review the Proceedings

In Browning v. Holloway ..............2645: 12

II. The Fifth Circuit’s Decision Supports

the Right of A Fair Trial in Accord

With This Court’s Precedents .............. 13

III. The Fifth Circuit Correctly

Followed Parratt and Hudson ............... 17

IV. Any Assumed Differences Between

the Fifth Circuit’s Opinion and the

Opinions of Two Other Circuits Do

Not Warrant Certiorari In This Case ....... 21

a ss cau selcceccsceccecs 25

I acu vee desecsescccvcsss 26

Appendix A

Fifth Circuit, Order of March 19, 1986,

In Re Pat S. Holloway, No. 86-1164 ............... A-1

Appendix B

Excerpts from Plaintiffs’ First Amended Complaint

and Application for Declaratory and Injunctive

Relief, filed in Holloway v. Walker, CA3-82-1846-H... B-1

Appendix C

District Court, Memorandum Opinion and Order,

March 28, 1985, Holloway v. Walker,

ae ucWen cession. C-1

Appendix D

Texas Rule of Civil Procedure 18a ................. D-1

iv

TABLE OF AUTHORITIES

Cases: Page

Aetna Life Ins. Co. v. Lavoie, 106 S.Ct. 1580

SE ni Wc cv Ch RA EKACCO ET OE EEE ELEN e Ce bare 14, 15

Atchley v. Greenhill, 373 F.Supp. 512

(S.D. Tex. 1974) aff'd, 517 F.2d 692 (5th Cir. 1975),

cert. denied, 424 U.S. 915 (1976) .............0e0. 6,9

Atchley v. Greenhill, 517 F.2d 692 (5th Cir.),

rhg. denied, 521 F.2d 814 (5th Cir. 1975),

cert. denied, 424 U.S. 915 (1976) ................ 9

Atchley v. The Superior Oil Co., 482 S.W.2d 883

Cec en PS I hs oo cba oo ps Oe es od e's 8

Atlantic Coastline R. Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281 (1970) ....... 12

Bretz v. Kelman, 773 F.2d 1026 (9th Cir. 1985) ....21, 22

Browning v. Navarro, 37 B.R. 201 (N.D. Tex. 1983).. 7

Browning v. Navarro, 743 F.2d 1069 (5th Cir. 1984).. 5,7

Browning v. Placke, 698 S.W.2d 362 (Tex. 1985) .... 5,6

C. & R. Transport, Inc. v. Campbell,

406 &.W.20 101 (Tex. 1966) 2... ccc ccc cewes 3

Dasher v. Supreme Court of Texas,

US Fe TGe Gir Ce TES boc ccs ce ccwecus 13

Dennis v. Sparks, 449 U.S. 24 (1980) .............. 18

District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983) .............. 12, 13, 24

Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493

EE: tks ok WGN Coch ede en Rah Cae eee oo hack cea 4

Ex parte Virginia, 100 U.S. 339 (1880) ........ 17, 19, 20

Holloway v. Walker, 106 S.Ct. 605 (1985) .......... 2

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

cert. denied, 106 S.Ct. 605 (1985) ................ 10

Holloway v. Waiker, 784 F.2d 1287, rhg. denied,

790 F.20 1170 (Gth Cir. 1906) . 000i ccc ccees passim

Vv

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Home Telephone & Telegraph Co. v. Los Angeles,

Sr eee PRUE 6 056 6 Kone 6s codes 05085 17, 19

Hudson v. Palmer, 468 U.S. 517, 104 S Ct.

ee ek RAN Es SA BOR DONC Rie ee ee passim

Humble Exploration Company v. Browning, 106

S.Ct. 1376, rhg. denied 106 S.Ct. 1807 (1986) .... 2,17

Humble Exploration Company v. Browning, 677

S.W.2d 111, en banc opinion on motion to

reinstate, 690 S.W.2d 321 (Tex.Civ. App. 1985,

writ ref’d n.r.e.), cert. denied, 106 S.Ct. 1376,

rhg. denied, 106 S.Ct. 1807 (1986) .............. 7,15

In re Murchison, 349 U.S. 133 (1955) .............. 14

International Ass’n of Machinists v. Federated Ass’n

of Accessory Workers, 130 S.W.2d 282 (Tex. 1939) . 16

Jaehne v. Starnes, No. 14,693, Texas Court of

BE I oko 3 Ss nies epee hd 55a sees 9

Logan v. Zimmerman Brush Co., 455 U.S. 422

Te CG ie eek van hk ka eee ek bees res 22, 23

National Communication Systems, Inc. v. Michigan

Public Service Commission, 789 F.2d 370

(6th Cir.), cert denied, 55 U.S.L.W. 3208,

ee i ie tence e rcs es ers + mcis 22

National Hockey League v. Metropolitan Hockey

Che Eee, SET Ui Ge SET nn coe bed cweccsces 16

Parratt v. Taylor, 451 U.S. 527 (1981) ........... passim

Patterson v. Coughlin, 761 F.2d 886 (2d Cir.

1985), cert. denied, 106 S.Ct. 879 (1986) .... 21,23, 24

Rooker v. Fidelity Trust Co., 263 U.S.

Ga ns oils Ee ns 9,12, 24

Sparks v. Duval Ranch Co., 604 F.2d 976

CE Sk SE Shao rhs meee 6 kes a eke nae 18

Texaco, Inc v. Pennzoil Co., 784 F.2d 1133

Cee os a ea adtd us va doh asin eo ei 24

The Monrosa v. Carbon Black Export, Inc.,

Oe ta ee EE ono ivcweh coe cheese niaséeveasai 21

vi

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Tumey v. Ohio, 273 U.S. 510 (1927) ............. 14, 15

Ward v. Village of Monroeville, 409 U.S. 57 (1972) 14,15

Williamson County Regional Planning Comm’n v.

Hamilton Bank, 105 S.Ct. 3108 (1985) ........... 20

Rules:

Pee. m. Cav. P. 37 ....: qty se BENS ed phy eri! 16

ee. okay 4 ae AS be oeemalne 5, 16

nr MN cy sc ake ee cOedemeee ewes 14, 15

No. 86-271

In The

Supreme Court of the United States

OCTOBER TERM, 1986

PaT S. HOLLOWay,

Petitioner,

uv.

JUDGE DEE BROWN WALKER, et al.,

Respondents.

BRIEF IN OPPOSITION OF RESPONDENTS, THE

BROWNING INTERESTS AND R. JACK AYRES, JR.

The Respondent Browning Interests! and R. Jack Ayres,

Jr. respectfully request that this Court deny the Petition for

Writ of Certiorari of Pat S. Holloway seeking review of the

judgment of the United States Court of Appeals for the

Fifth Circuit. That court’s opinions in this case are

reported at 784 F.2d 1287, rehearing denied, 790 F.2d 1170

(5th Cir. 1986).

'The Browning Interests are Jane H. Browning, Individually and as

Co-Independent Executrix and as Co-Trustee of the Estate of William W.

Browning, Jr., Deceased, Michael G. Starnes, Individually and as Co-

Independent Executor of the Estate of William W. Browning, Jr.,

Deceased, and as Trustee for Kathryn Louise Browning Cook, Averille

Adams Browning Dawson, William Webb Browning, III, Winifred Fallon

Browning Vaughn, and Robert Holland Browning; Catherine Agnes Land

Starnes, Individually; Kathryn Louise Browning Cook, Individually;

Averille Adams Browning Dawson, Individually; William Web Browning,

III, Individually; and Robert Holland Browning, Individually.

2

JURISDICTION

Petitioner applies for a writ of certiorari to the Court of

Appeals for the Fifth Circuit. Federal jurisdiction in this

case is lacking because the district court lacked federal sub-

ject matter jurisdiction to review rulings and proceedings in

the state court.

STATEMENT OF THE CASE

This is the third but, unfortunately, probably not the last,

petition for certiorari Petitioner Pat S. Holloway has filed

within approximately a one-year period asking this Court to

review, either directly or indirectly, the same state court

judgment against him.? In this case, Holloway seeks the

reversal of a summary judgment against him by a United

States district court in a § 1983 suit collaterally attacking

the state court judgment.®

2The Court denied petition for writ of certiorari in Holloway’s direct

appeal from the state court judgment. Humble Exploration Company, Inc.

v. Browning, 106 S.Ct. 1376 (1986), rhg. denied, 106 S.Ct. 1807 (1986). The

Court also denied certiorari in an interlocutory appeal in this case involv-

ing Holloway and Judge Walker, one of the defendants. Holloway v.

Walker, 106 S.Ct. 605 (1985).

3The statement of the case presented by the Petitioner has numerous

misstatements of the proceedings in both the original state court proceed-

ings, which are the subject of this lawsuit, and the proceedings below in

this suit. Petitioner’s counsel in this Court did not represent Petitioner in

tbe proceedings below, in the original state court suit, or in any of the

multiple collateral proceedings, and, therefore, have probably relied upon

Petitioner for their assertion of the factual background involved in this

case. Many of the misstatements, however, are misstatements that Hol-

loway has repeatedly made both in these proceedings below and in multi-

ple collateral proceedings.

While the Respondents cannot expect Petitioner’s current counsel to be

knowledgeable about the detailed factual background in the collateral

proceedings, Petitioner’s counsel should have been able to ascertain that

this is an appeal from summary judgment granted by the district court for

the Respondents. Holloway v. Walker, 784 F.2d at 1290. (Appendix to

Petition (hereafter referred to as “Pet. App.”) at A-7). Holloway’s plead-

ings are not assumed to be true in an appeal from a summary judgment.

3

In 1979 the Brownings sued Holloway, Humble Explo-

ration Company, Inc. and others in the state courts of Texas

for damages for fraud and breach of fiduciary duties and for

imposition of a constructive trust over certain corporate

stock and producing mineral interests. Following numerous

procedural complications and delays, including the filing of

bankruptcy proceedings by Holloway on behalf of Humble

and himself as a “technical legal maneuver made only for

the purpose of removing to the federal courts [the] lawsuit

..., the Brownings finally obtained a six and one-half week

jury trial, which concluded with multiple jury findings

adverse to Holloway. The jury found that the conduct of

Holloway and the other defendants damaged the Brownings,

awarding actual damages in the amount of $70 Million and

punitive damages of $2 Million.* Based on the jury’s verdict,

‘Petitioner affirmatively misstates both the jury’s findings and the legal

effects of those findings under Texas law. On page 4 of the petition, Hol-

loway states that the jury returned a verdict in his favor and that Judge

Walker entered a judgment n.o.v. in furtherance of a conspiracy against

him. In special issues 2 and 9 the jury found that Holloway violated his

fiduciary duties to Browning by acquiring shares of stock in Humble for

his own account, and in special issues 12 and 13 found that Holloway

defrauded Browning in connection with the acquisition of the stock in

question. In special issue 15 the jury found that Pat Holloway and others

entered into a conspiracy to defraud the plaintiffs of their rights as share-

holders in the company with malice. Holloway repeatedly ignores those

findings. Holloway instead claims that in response to special issues 1 and

5, the jury found that he “. .. had not agreed to hold the shares of Humble

Exploration Company issued in his name for the use and benefit of the

Browning Interests ... and that Holloway had not defrauded the Brown-

ing Interests. The jury further concluded that the Browning Interests

were entitled to no damages whatever. Special Jury Issues Nos. 1, 5, 83.”

(Petition at 4, n.4) (Holloway’s emphasis). Apparently, Petitioner asserts

that the jury’s failure to find affirmatively for a party on each theory of

recovery on which he has the burden of proof is equivalent to a jury find-

ing in favor of his adversary. Stated differently, Petitioner apparently

contends that the jury’s negative answers to certain special issues is an

affirmative finding of the opposite fact. This simply is not the law in

Texas. C. & R. Transport, Iiic. v. Campbell, 406 S.W.2d 191 (Tex. 1966).

The Browning Interests’ failure to prevail on some of their claims did not

affect the multiple findings in their favor.

ee

4

and its own additional findings as a matter of law, the trial

court entered a judgment granting the Brownings a con-

structive trust over substantially all of the assets of

Holloway and the other defendants and damages totalling |

$72 Million.® |

Holloway and the other state court defendants appealed

in the state system. However, prior to taking that appeal,

Holloway filed this suit on behalf of Humble, Sterling

Pipeline Company, another defendant, and himself.* This

suit was but the first in a litany of collateral attacks by Hol-

loway or his family on the validity of the state court judg-

ment, including a declaratory judgment proceeding,’ a RICO |

5Holloway states that the constructive trust has included his residence,

his inheritance, and many of his personal effects. (Petition at 4). The

Browning Interests have never contended that the constructive trust on

Holloway’s property extended to his inheritance. With respect to the |

assets that were covered by the constructive trust, the jury found that

Holloway and the other defendants had commingled assets to which the

Browning Interests were entitled with their own assets. Under Texas law,

a party who wrongfully commingles trust property has the burden of

proof to trace and segregate the assets not subject to constructive trust.

Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493 (1943). Holloway simply

failed factually and legally to meet his burden.

®Although Holloway and Humble were both in bankruptcy with a

bankruptcy trustee appointed over both estates, Holloway filed this law-

suit without obtaining permission of either the bankruptcy trustee or the

bankruptcy court. Subsequently, the bankruptcy trustee obtained permis-

sion of the bankruptcy court to join Holloway in this suit. While this suit

has been on appeal, the bankruptcy trustee obtained permission from the

bankruptcy court to withdraw from participation in litigation between

Holloway and the Browning Interests and to permit Holloway to pursue

whatever legal claims he desires.

7Neither the state court defendants nor the bankruptcy trustee for Hol-

loway and Humble filed a supersedeas bond when they appealed the state

court judgment. Therefore, the Browning Interests requested that the

bankruptcy trustee, Don Navarro, and the defendants voluntarily turn

over property belonging to the Browning Interests under the constructive

trust. When the request was rejected, the Browning Interests filed a

turnover suit in the United States district court, under its bankruptcy

jurisdiction, as required by a prior agreement in the bankruptcy court, in

order to obtain possession of their property during the pendency of the

5

case,® multiple collateral state attacks,® attacks in the

state appeal. In the turnover suit, Holloway and the other defendants

therein filed a declaratory judgment proceeding as a counterclaim, asking

the United States district court to hold that the remand from the

bankruptcy court was not effective, that the state courts lacked jurisdic-

tion of the case, and that the state court judgment was void because

Judge Walker was neither a retired nor visiting judge. Holloway’s state-

ment in this petition that his position in the turnover suit was merely

defensive misstates the record. The filing of a counterclaim is an affirma-

tive, not defensive, action. He sought not only to prevent the Browning

Interests from obtaining possession of their property during the appeal of

the state court judgment but also to have the state court judgment set

aside by the federal courts. Browning v. Navarro, 743 F.2d 1069 (5th Cir.

1984).

8In May, 1984, Holloway, appearing as an attorney, purportedly on

behalf of his daughter and various owners of royalty interests in wells

operated by Humbie, filed in the United States district court a RICO

action against the persons who were defendants in this case. As an attor-

ney in that case, Holloway made the same conspiracy allegations and

claimed the defendants had corrupted the 162nd District Court and asked

the court to declare the judgment in this case void and enjoin its enforce-

ment. In response to defendants’ interrogatories, the plaintiffs answered

that they had no personal knowledge of the facts in support of the allega-

tions, that the knowledge was that of their attorney, Holloway, and that

his knowledge was privileged as work product. The RICO suit was dis-

missed with prejudice pursuant to Fed. R. Civ. P. 41(b) in July, 1985.

*After receiving adverse rulings in the spring of 1985 in this case, the

turnover suit and his direct appeal in the Texas appellate courts, Hol-

loway filed two suits in June and July, 1985, in a Lee County, Texas,

district court collaterally attacking the judgment. The suits were practi-

cally identical except for a variation of parties. Holloway, members of his

immediate family, and former colleagues of Holloway were plaintiffs in

the first Lee County suit. Holloway filed the second suit as the attorney

for members of his immediate family. Both suits essentially repeated the

allegations in this suit, in which summary judgment had already been

rendered against him, and added numerous other allegations. Both suits

asked the Lee County district court to declare the judgment in this case

void, enjoin its enforcement and enjoin the Respondents from complying

with the United States district court’s subsequent turnover orders in the

turnover suit. The Lee County court announced that it would grant a

temporary injunction prohibiting the Respondents from receiving any

property from the bankruptcy trustee, who in 1985 had been ordered to

turn over property to the Respondents. The Lee County court did not

sign such an injunction but instead entered an order declaring the judg-

ment in this case void. The Texas Supreme Court stayed the Le’ County

court’s order and subsequently granted a conditional mandamus directing

the judge of the Lee County court to vacate his order. Browning v. Placke,

6

bankruptcy court,!° and even original proceedings in the

Fifth Circuit.'!

698 S.W.2d 362 (Tex. 1985). These Lee County cases, which were consol-

idated, were subsequently dismissed for lack of jurisdiction on January 10,

1986. Holloway is currently appealing that dismissal in the Texas appellate

courts.

1°In May, 1986, Holloway filed in the bankruptcy court in his individual

bankruptcy case multiple objections to the Browning Interests’ claims for

payment of some of their damage award out of the assets of the Holloway

bankruptcy estate. He repeated the same allegations as presented in this

case and the Lee County suits, along with additional arguments and asked

the bankruptcy court to hold the state court judgment void. The

bankruptcy court denied Holloway’s objections. He has appealed the denial

to the United States district court, where the appeal is currently pending.

11While this case was pending in the Fifth Circuit, Holloway’s family and

co-counsel in the Lee County cases filed additional collateral attacks

against the validity of the state court judgment in the form of original

proceedings. These motions asked the Fifth Circuit sua sponte to stay

orders in the turnover suit and to declare the state court judgment void on

the grounds that Holloway had a previously undisclosed diplomatic immu-

nity from suits in Texas courts as a Bolivian consul, and that the state

court judgment was obtained in an alleged violation of Holloway’s civil

rights and related matters. In addition, Holloway’s latest wife, herself a

convicted felon, stated in her papers to the Fifth Circuit that she had

armed herself and threatened to do violence to anyone who attempted to

enforce the turnover orders of the United States district court. The Fifth

Circuit denied those motions.

Holloway was found by the district court in the turnover suit to be in

contempt of court for refusing to obey that court’s orders to turnover

certain property to the Browning Interests. Holloway then filed an original

habeas corpus proceeding in the Fifth Circuit, again attacking the validity

of the state court judgment on the basis of his purported diplomatic immu-

nity and multiple other grounds. The Fifth Circuit denied the application.

[Appendix A-1]. The Fifth Circuit has also found that Holloway was ter-

minated as an honorary Bolivian consul prior to the state court suit and

that he has known of that termination at least since February, 1979.

Respondents’ suggestion for contempt and disciplinary action based upon

the making of fictitious and fraudulent claims before that court and for

unethical conduct are being retained by the Fifth Circuit until after this

Court rules on this petition for certiorari.

Holloway has repeatedly used this pattern of collateral attacks on state

court judgments in the past as an attorney. See, note 14, infra, and Atchley

v. Greenhill, 373 F.Supp. 512 (S.D. Tex. 1974), aff'd, 517 F.2d 692 (5th Cir.

1975), cert. denied, 424 U.S. 915 (1976) (Holloway’s claims of corruption by

seven then-sitting members of the Texas Supreme Court, two of whom are

now judges on the Fifth Circuit, were dismissed by the district court as

frivolous and as an improper attempt to review state court proceedings in

a lower federal court).

In the turnover suit, Holloway initially succeeded in

obtaining a judgment from the United States district court

that the state court judgment was void and that the state

courts lacked jurisdiction because Judge Walker was neither

a retired nor visiting judge.!2 The Texas court of appeals

found that Holloway and the other defendants’ conduct in

the federal court was fundamentally inconsistent with con-

tinued simultaneous prosecution of an appeal in the courts

of Texas. It, therefore, dismissed the appeal. Humble Explo-

ration Company v. Browning, 677 S.W.2d 111 (Tex. App.

1984).18

Simultaneous with their state court appeal and their

declaratory judgment action in the turnover suit, Holloway,

Humble, Sterling and the trustee sought in this suit to

obtain the following:

1. a declaratory judgment that the Brownings were

completely and conclusively barred from obtaining

12Browning v. Navarro, 37 B.R. 201 (N.D. Tex. 1983). The Fifth Circuit

subsequently reversed this decision by the district court, holding that the

parties had complied with the requirements of presenting the case to a

retired or visiting judge upon remand, that the state courts had jurisdic-

tion over the proceedings, and that the state court judgment was not void.

Browning v. Navarro, 743 F.2d 1069 (5th Cir. 1984). Following remand,

the district court rejected further arguments that the state court judg-

ment was void and held that the Browning Interests were entitled to pos-

session of the constructive trust property but denied their conversion

claim against the trustee. Holloway is currently appealing that judgment.

The Browning Interests are appealing the district court’s ruling on con-

version.

‘3Holloway subsequently was able to get the panel of the Texas court of

appeals to grant an untimely misnomered motion-for rehearing and rein-

state his appeal. The Texas court of appeals, en banc, set aside the rein-

statement for violating the Texas Rules of Civil Procedure and for being

unwarranted on the merits. The Texas Supreme Court ‘denied the state

appellants’ petition for writ of error, and this Court denied their subse-

quent petition for certiorari. Humble Exploration Company, Inc. v. Brown-

ing, 690 S.W.2d 321 (Tex. App. 1985, writ ref'd n.r.e.). cert. denied, 106

S.Ct. 1376, rhg. denied, 106 S.Ct. 1807 (1985).

8

any relief in the state court suit by the bankruptcy

court’s prior order;

2. a declaratory judgment that the state court judgment

was void for lack of due process;

3. a permanent injunction against the defendants from:

a. taking any further action in the state court case;

b. pursuing any receivership or injunctive relief;

c. attempting to enforce or collect on the state court

judgment; and

d. interfering in any way with the plaintiffs’ opera-

tion of Humble or attempting to manage the

assets or interests of any of the plaintiffs in this

suit;

4. compensatory and punitive damages for violating or

conspiring to violate 42 U.S.C. § 1983 in excess of

$200 Million;

5. divestment of any interest of the Brownings or any

other defendant in Humble, Holloway or Sterling;

and

6. a prohibition against any of the defendants from

prosecuting any claims against the plaintiffs or

engaging in the same type of businesses in which

Holloway, Humble, and Sterling either are or were

engaged. (See Appendix B-3 to B-6).

Holloway and the other plaintiffs alleged that the Brown-

ing Interests and their attorneys had conspired with the

state district judge, Judge Walker, and others to steal Hum-

ble, Sterling and other assets by seizing the state court!‘ suit

“This is not the first time that Holloway has alleged that judges who

rule adversely to him were corrupt. In an unsuccessful effort to obtain

Texas Supreme Court review of Atchley v. The Superior Oil Co., 482

S.W.2d 883 (Tex. Civ. App. 1982), Holloway, as an attorney, filed a

motion for rehearing suggesting that the seven members of the Texas

Supreme Court who had denied review were corrupted. The Texas

Supreme Court struck the motion for rehearing. Holioway, still acting as

an attorney, then filed a federal court lawsuit against the seven sitting

i

9

from another state trial court and conducting a sham trial.

After several years of discovery and other pretrial

members of the Texas Supreme Court and the state trial judge for a

declaratory judgment that the state court and Texas Supreme Court rul-

ings and judgment were void, alleging various irregularities and impropri-

eties by the judges in the course of the state litigation depriving his client

of his constitutional right to due process and equal protection. Atchley v.

Greenhill, 373 F.Supp. 512 (S.D. Tex. 1974). The district court dismissed

the suit, holding in part:

Defendant justices and judge are charged with personal

improprieties in the discharge of their duties as state officials.

The concept of minimal federal interference with state govern-

ment dictates that this matter be dealt with by state procedures.

The prospect of federal court reviewing state court proceedings

for judicial bias or interest is an effrontery to the concept of

federalism. 373 F.Supp. at 515.

The Fifth Circuit affirmed, citing Rooker v. Fidelity Trust Co., 263 U.S.

413 (1923). Atchley v. Greenhill, 517 F.2d 692 (5th Cir.), rhg. denied, 521

F.2d 814 (5th Cir. 1975), cert. denied, 424 U.S. 915 (1976).

In Browning v. Holloway, the state court action under attack in this

suit, Holloway testified that he had filed the bankruptcy proceedings

because the state district judge in whose court the suit was originally

filed, Judge Hugh Snodgrass, was crooked. Subsequently, in the direct

appeal in the state appellate courts, Holloway argued to the Texas

Supreme Court that the judgment of the intermediate appellate court was

premised “... on palpably false notions of law, a conscious ignorance of

federal court-state court relationships and constitutional law, and a will-

ful misreading of the record.” Petitioners’ Motion for Rehearing of their

Application for Writ of Error, at 7, Humble Exploration Company uv.

Browning, No. C-4129, Texas Supreme Court.

Similarly, Holloway implied improprieties by other judges in his subse-

quent collateral Lee County cases. Following the Texas Supreme Court’s

granting a conditional mandamus against Judge Placke, Judge Placke

inlormed the parties that in the future the case would be heard by a

fell. w judge, Judge Towslee. Subsequently, Judge Towslee dismissed the

collateral attack as outside the Lee County courts. In the subsequent

appeal, as both appellant and the attorney for all the appellants, Hol-

loway states in the brief of appellants that following the Supreme Court’s

mandamus ruling, “... Judge Towslee, who apparently assumed control

of the case from Judge Placke, either on his own initiative or at the sug-

gestion of the Defendants, then dismissed it for want of jurisdiction.”

Brief of Appellants, at 5, Jaehne v. Starnes, No. 14,693, Texas Court of

Appeals at Austin. Holloway’s description of Judge Towslee is similar to

his allegations that Judge Walker seized control of the original state court

lawsuit in order to rule against him.

10

procedures,'® the district court granted defendant Ayres’

Motion for Summary Judgment with respect to the plain-

tiffs’ procedural due process claim but held that the plain-

tiffs stated claims of substantive due process which would

not be dismissed. (Pet. App. at A-39).

Two weeks later, the district court granted summary judg-

ment for the Browning Interests with respect to the federal

claims holding that “Plaintiffs have not, after years of dis-

covery, produced sufficient evidence of a conspiratorial

agreement or conduct by the Browning Interests.”

(Appendix C-3).

The following month, in response to Ayres’ motion to

reconsider, the district cour’. agreed that the plaintiffs’

claims dealt with procedural uue process controlled by Par-

ratt v. Taylor, 451 U.S. 527 (1981) and Hudson v. Palmer,

468 U.S. 517, 104 S.Ct. 3194 (1984). The court then granted

Ayres’ motion to reconsider and all the defendants’ motions

for summary judgment, thereby dismissing the plaintiffs’ 42

U.S.C. § 1983 claims with prejudice. (Pet. App. at A-23).

Holloway and the trustee appealed.'* The Fifth Circuit

affirmed the summary judgment granted Ghe\ by/district

court, holding that under the Parratt and Hudson decisions,

15The district court denied the moticas to dismiss filed by the various

defendants. Judge Walker took an interlocutory appeal. The Fifth Circuit

reversed Judge Sanders’ denial in part, holding that Judge Walker was

entitled to absolute judicial immunity from the plaintiffs’ damage claim.

This Court denied certiorari. Holloway v. Walker, 765 F.2d 517 (5th Cir.),

cert. denied, 106 S.Ct. 605 (1985). That was the appeal of the motion to

dismiss that Petitioner repeatedly and erroneously suggests is this cur-

rent appeal.

16Holloway also purported to appeal on behalf of Humble and Sterling.

Prior to the notice of appeal, however, all of the outstanding stock in

these two companies had been turned over to the Brownings pursuant to

orders of the United States district court in the turnover suit. The new

management of the companies did not authorize the appeal, and upon

their motion, the Fifth Circuit dismissed the appeal as to Humble and

Sterling. Holloway v. Walker, No. 85-1289 ¢5th Cir., Aug. 12, 1985) (order

dismissing appeal of Humble and Sterling).

11

the conduct between Judge Walker and the other

defendants alleged to amount to a conspiracy to deny Hol-

loway a fair trial was subject to review in the Texas appel-

late courts and therefore was not a denial of due process by

the state prohibited by the Fourteenth Amendment.

REASONS FOR DENYING THE WRIT

Holloway asks this Court to grant certiorari to discuss the

scope of the Parratt and Hudson decisions. He contends that

the Parratt-Hudson rule is a very narrow exception inappli-

cable to his case and that the Fifth Circuit’s application of

the rule conflicts with both the broad application this Court

has given to 1983 cases and the narrower interpretations of

Parratt and Hudson by other circuits. The Browning Inter-

ests disagree with Holloway’s assertion that the Fifth Cir-

cuit’s application of the Parratt-Hudson rule conflicts with

this Court’s teachings. The holdings of the other circuits

may be distinguished from the Fifth Circuit’s holding in this

case, and, in any event, the Fifth Circuit correctly applied

the Parratt-Hudson rule, while some other circuits may have

attempted to avoid the rule.

Certiorari is not appropriate in this case because there is

another basis for denying relief to plaintiffs without even

addressing the Parratt-Hudson rule. Holloway seeks in this

suit an unauthorized review of state court proceedings in

lower federal courts. Although this issue was before it in this

appeal, the Fifth Cireuit chose to address the application of

the Parratt-Hudson rule. However, the Fifth Circuit concur-

rently addressed this issue in Holloway’s habeas corpus pro-

ceeding, where he argued that the Fifth Circuit should grant

him relief from a contempt order in the turnover suit

because the state court judgment enforced by the district

court was constitutionally invalid. (See footnote 11, supra).

12

The Fifth Circuit denied the writ of habeas corpus, holding

in part, “The inferior courts of the United States lack juris-

diction to test Petitioner’s claim that the challenged state

court judgments are constitutionally invalid.” (Appendix

A-2).

I. THE LOWER FEDERAL COURTS HAVE NO JURIS-

DICTION TO REVIEW THE PROCEEDINGS IN

BROWNING V. HOLLOWAY.

Holloway asks the lower federal courts in this suit to

review the state court proceedings, seeking declaratory and

injunctive relief that the state court judgment is void

because the state trial judge allegedly conspired with the

opposing parties and others to deny him a fair trial, in viola-

tion of the Due Process Clause of the Fourteenth Amend-

ment. Such claims do not, however, authorize the lower

federal courts to review the state court proceedings because

those courts have no power to review individual decisions in

state court cases. District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 476 (1983); Atlantic Coastline R. Co.

v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286,

296 (1970); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

As this Court stated in Rooker, 263 U.S. at 415-416:

If the constitutional questions stated in the bill actually

arose in the cause, it was the province and duty of the

state courts to decide them; and their decision, whether

right or wrong, was an exercise of jurisdiction. If the

decision was wrong, that did not make the judgment

void, but merely left it open to reversal or modification

in an appropriate and timely appellate proceeding. ...

Under the legislation of Congress, no court of the

United States other than this court could entertain a

proceeding to reverse or modify the judgment for errors

of that character. ... To do so would be an exercise of

appellate jurisdiction. The jurisdiction possessed by the

District Courts is strictly original.

13

Holloway’s plea for monetary relief in the nature of com-

pensatory and punitive damages directly calls upon the

federal courts to review the state court proceedings. He

claims the basis for those damages to be in the deprivation

of his property by the denial of due process and the denial of

a right to fair trial, which he purports to support by testi-

mony of alleged ex parte meetings between the trial court

judge and attorneys for other parties, combined with attacks

on the correctness of the rulings and other decisions made

by Judge Walker in the conduct of the state court proceed-

ings. Such reviews of state court proceedings in the lower

federal courts is likewise impermissible.

In Feldman, this Court rejected similar reasoning, which

had been originally adopted by the Fifth Circuit in Dasher v.

Supreme Court of Texas, 658 F.2d 1045 (5th Cir. 1981),

seeking to justify a lower federal court review of a state

admission decision, in the following language, 460 U.S. at

482 n.16:

If the constitutional claims presented to a United

States district court are inextricably intertwined with

the state court’s denial in a judicial proceeding of a

particular plaintiffs application for admission to the

state bar, then the district court is in essence being

called upon to review the state-court decision. This the

district court may not do.

These decisions delineating the role of the lower federal

courts control this case. This case, therefore, is not an

appropriate vehicle for further explanation of the Parratt-

Hudson rule.

Il. THE FIFTH CIRCUIT’S DECISION SUPPORTS

THE RIGHT TO A FAIR TRIAL IN ACCORD WITH

THIS COURT’S PRECEDENTS.

Petitioner argues that the Fifth Circuit has trivialized the

right to a fair trial and that its holding cannot be reconciled

14

with this Court’s holding in Aetna Life Ins. Co. v. Lavoie, 106

S.Ct. 1580 (1986) and its prior precedents, Ward v. Village of

Monroeville, 409 U.S. 57 (1972); In re Murchison, 349 U.S.

133 (1955); Tumey v. Ohio, 273 U.S. 510 (1927). Petitioner

completely misconstrues the holding and import of the Fifth

Circuit’s opinion. In no sense does the Fifth Circuit retreat

or undermine the proposition that “[a] fair trial in a fair

tribunal is a basic requirement of due process.” In re

Murchison, 349 U.S. at 136. The Fifth Circuit focuses on

how the state achieves this policy rather than on the

abstract policy itself.

The Fifth Circuit correctly notes that a state may have

statutes, policies, or standard procedures which could estab-

lish an institutional bias against a party. Indeea, Ward,

Murchison, and Tumey all involved situations of institu-

tional bias. Petitioner’s claims, however, do not fall within

this category. Instead, his claim is that the state trial judge

was bribed by representatives of the opposing parties to

deny him a fair trial. There is no allegation by Petitioner

that such alleged activity is authorized or condoned by

Texas statute, policy or procedures. Under these circum-

stances, the Fifth Circuit notes that “...no judicial system

offers any guarantee, other than the postdeprivation right of

appeal, that an individual judge will not act arbitrarily or

corruptly.” Holloway v. Walker, 784 F.2d at 1292.

In addition, Texas authorizes pretrial recusal proceedings

entitling a party challenging a judge to a hearing before

another judge as to the challenged judge’s disqualification.

Tex. R. Civ. P. 18a. (Appendix D-1). Holloway, in fact, made

such a challenge against Judge Walker, alleging that he was

biased, that he had improper connections with the opposing

parties because he had been represented about a decade

earlier in a few civil rights suits by one attorney for

15

the Browning Interests and the attorney for the state court

receiver, and that he conducted numerous ex parte meetings

resulting in rulings denying Holloway his due process rights.

These allegations were heard by Judge Morris Rolston, a

visiting retired judge, who found against Holloway on the

merits of all these contentions. This Court has recognized

that such recusal hearings are appropriate for allegations

that a judge is biased in a specific case. See, Ward v. Village

of Monroeville, 409 U.S. at 61.

Texas permits a denial of recusal to be reviewed on

appeal. Tex. R. Civ. P. 18a. If the denial of recusal is found

to be erroneous, the complaining party will, at a minimum,

be entitled to a new trial before a different judge. This Court

followed the same procedure in Aetna Life Ins. Co. v. Lavoie,

where on direct appeal it reversed and remanded the case

for further proceedings without the participation of the dis-

qualified justice. This same procedure was also followed in

Ward, Murchison and Tumey. In each of those cases, this

Court granted certiorari in a direct review of the state court

proceedings.

In Holloway’s direct appeal of the state court judgment,

he filed multiple points of error, contending that it was error

for Judge Walker to sit on the case.!? Holloway’s appeal

was, however, determined adversely to him; the Texas court

of appeals dismissed his appeal for abusing the Texas judi-

cial process. Humble Exploration Company v. Browning, 677

S.W.2d 111, en banc opinion on motion to reinstate, 690

17Petitioner’s points of error 20 through 24 all contended that the fail-

ure to recuse Judge Walker was reversible error. E.g., point of error num-

ber 24 stated, “The failure by the trial court to grant the motion to recuse

operated to deprive appellants of procedural due process, as guaranteed

by the Constitutions of the State of Texas and of the United States.”

These points of error were among 211 points raised by Petitioner in his

three-volume Brief of Appellants, consisting of over 500 pages.

16

S.W.2d 321 (Tex. Civ. App. — Dallas 1985, writ ref’d n.r.e.).

The effect of a dismissal of appeal is to affirm the judgment

below without according to the appealing parties a hearing

on the merits of their appeal. Internationa! Ass’n of Machin-

ists v. Federated Ass’n of Accessory Workers, 130 S.W.2d 282,

283 (Tex. 1939). This result is comparable to a dismissal

with prejudice by a federal district court under Fed. R. Civ.

P. 37 or 41(b) as a sanction for improper conduct by a party.

See, National Hockey League v. Metropolitan Hockey Club,

Inc., 427 U.S. 639 (1976).

Holloway then applied for certiorari from this Court in a

direct review of the state court judgment. Humble Explo-

ration, Inc. v. Jane H. Browning, No. 85-1182. The first

question presented to this Court was as follows:

Were Petitioners’ rights under the Due Process Clause

of the Fourteenth Amendment to the federal Constitu-

tion denied when a Texas Court of Appeals dismissed

their pending appeal from a judgment rendered against

them in the Court of first instance by a biased and cor-

rupted judge following an unfair trial, on the ground

that Petitioners forfeited their appeal by unsuccessfully

collaterall ttacking the validity of that judgment

when Respondents sued to enforce it in federal court?!®

18In that petition for certiorari, Holloway specifically argued that he

had been denied a fair trial by a corrupted judge in the following lan-

guage:

In this case, the trial in the court of first instance was not only

unfair, but a complete sham. In effect, there was a judgment rendered

against Petitioners depriving them of their property without a hear-

ing, for a hearing before a biased and corrupted judge amounts to no

hearing at all. [citations omitted]. Judge Walker’s relationship with

Respondents and his overwhelming prejudice against Petitioners was

demonstrated repeatedly throughout the trial. Moreover, after the

trial, the federal District Court for the Northern District of Texas

ruled in Petitioners’ § 1983 action against Judge Walker, Respon-

dents and others, that Petitioners had produced competent summary

judgment evidence that Judge Walker and one of the Respondents’

counsel were engaged in a conspiracy against Petitioners to rig the

outcome of the trial.

17

This Court has correctly and finally denied that petition for

certiorari, Humble Exploration Company v. Browning, 106

S.Ct. 1376 (1986) and denied their motion for rehearing. 106

S.Ct. 1807 (1986).

The essence of the Fifth Circuit’s holding in this case is

that whatever relief a party may be entitled to based on alle-

gations of bias and corruption on the part of a trial judge

must be resolved in a direct review of the trial within the

appropriate judicial system and not brought as a collateral

attack of state judicial proceedings in the federal judicial

system.

Il. THE FIFTH CIRCUIT CORRECTLY FOLLOWED

PARRATT AND HUDSON.

Petitioner claims that the Fifth Circuit’s application of

the Parratt-Hudson rule ignores a century-old precedent

holding that abusive state power may violate the Fourteenth

Amendment, even where the state provides adequate proce-

dures for review and redress, citing Ex parte Virginia, 100

U.S. 339, 347 (1880), and Home Telephone & Telegraph Co.

uv. Los Angeles, 227 U.S. 278 (1913). The gist of Petitioner’s

argument seems to be that because the state acts through

individuals, his right to due process, therefore, was purport-

edly violated by Judge Walker’s “conduct of a trail, his entry

of an award of damages, his imposition of receiverships and

constructive trust and his rendering of a judgment N.O.V.

Petition for Writ of Certiorari at 12-13, Humble Exploration Company v.

Browning, 106 S.Ct. 1376 (1986). He concluded that petition with the fol-

lowing (/d. at 23-24):

Here the application of this new rule of forfeiture to Petitioners is

particularly reprehensible since their property was taken from them

by a corrupted judge in gross violation of their federal constitutional

right to a fair trial before an impartial judge in the first instance —

“the right that stands guardian over all other rights.” Dennis v.

United States, 339 U.S. 162, 173 (1950) (Jackson, J., concurring).

18

— in short, through his exercise in this case of the judicial

authority with which the State of Texas clothed him.”

(Petition at 14-15).

The essence of Petitioner’s argument is merely a variation

of the inmate’s argument in Hudson. Palmer complained

that Hudson intentionally destroyed certain of his personal

property during a shakedown search of his cell. Hudson’s

alleged deprivation of Palmer’s property rights was an abuse

of his authority to conduct shakedown searches in the

prison. Petitioner’s argument in this case is merely a deriva-

tion of Palmer’s argument that Hudson himself could have

provided predeprivation process and that his failure to do so

was a denial of due process. This Court rejected Palmer’s

argument. Holloway claims that the process provided by

Judge Walker before the deprivation by the entry of judg-

ment was not adequate in arguing that Hudson does not

apply. Under Petitioner’s analysis, Palmer would have

stated a due process violation if he claimed that Hudson had

conducted a sham summary proceeding before intentionally

destroying Palmer’s property. This analysis does not

comport with this Court’s statement in rejecting Palmer’s

argument, 104 S.Ct. at 3204:

Whether an individual employee himself is able to fore-

see a deprivation is simply of no consequence. The con-

trolling inquiry is solely whether the State is in a

position to provide for predeprivation process. (empha-

sis supplied).

Petitioner also claims that this Court precluded the appli-

cation of the Parratt-Hudson rule to suits claiming that

state judges conspired with other persons to deny a fair trial

in the state courts when it found in Dennis v. Sparks, 449

U.S. 24 (1980), affirming Sparks v. Duval Ranch Co., 604

F.2d 976 (5th Cir. 1979) that private parties who corruptly

19

conspired with a state judge were acting under color of state

law because this Court purportedly:

...took it for granted that they could accordingly be

sued under § 1983 for violating due process, notwith-

standing the availability of state- appellate relief from

the corrupt trial court decree (Petition at 9).

Petitioner thus argues, in essence, that a holding that cer-

tain actions are “under color of state law” for § 1983 pur-

poses also determines whether there is a Fourteenth

Amendment due process violation. The fallacy in this argu-

ment is demonstrated by this Court’s own posit of the ques-

tion in Hudson, 104 S.Ct. at 3202:

The question presented for our review in Palmer’s

cross-petition is whether our decision in Parratt v. Tay-

lor should extend, as the Court of Appeals held, to

intentional deprivations of property by state employees

acting under color of state law. (emphasis added).

Neither Ex parte Virginia nor Home Telephone &

Telegraph Co. v. Los Angeles is even relevant to these pro-

ceedings. Ex parte Virginia was a habeas corpus case before

the United States Supreme Court filed by a Virginia county

court judge who was indicted in a lower federal court for

illegally excluding black citizens from the grand and petit

jury list in violation of a federal criminal statute prohibiting

racial disqualification from a grand or petit jury. The cen-

tral issue of the case was whether the federal criminal

statute was constitutional. The Court held that Congress’

passage of the statute was within its constitutional powers

to enforce by appropriate legislation the Thirteenth and

Fourteenth Amendments of the Constitution, which were

specifically intended to raise the Negro race from the condi-

tion of inferiority and servitude in which they had previ-

ously been held. The Court held that the Congress could

20

constitutionally prohibit persons, no matter what their posi-

tion with a state government might be, from continuing to

discriminate on the basis of race in conflict with the equal

protec!ion provisions of the Fourteenth Amendment. Noth-

ing in either Hudson v. Palmer or the Fifth Circuit’s opinion

conflicts in any way with the holding in Ex parte Virginia.

Home Telephone & Telegraph Co. v. Los Angeles is simi-

larly inapposite. That case dealt with the City of Los Ange-

les’ efforts to fix telephone rates allegedly so unreasonably

low that their enforcement worked as a confiscation of the

corporation’s property. The issue involved in that case was

whether the telephone rates had to first be found to comply

with the state constitution, which had a similar prohibition

against the deprivation of life, liberty or property without

due process of law, before they could be challenged as a

deprivation of property without due process. This Court

held that an unreasonably low rate ordinance could be pro-

hibited by the Fourteenth Amendment without regard to

whether or not it was prohibited by the state constitution.

There is no conftict between that holding and the Fifth

Circuit’s opinion in this case. In fact, Home Telephone &

Telegraph Co. should be read in light of the Court’s decision

of last year in Williamson County Regional Planning Comm’n

v. Hamilton Bank, 105 S.Ct. 3108 (1985). That case was a

1983 suit charging that the application of local zoning laws

and regulations amounted to a confiscatory taking of the

plaintiff's property in violation of the just compensation

clause of the Fifth Amendment as applicable to the states

through the Fourteenth Amendment. This Court held that

the taking claim was not ripe because the plaintiff had not

sought compensation through the state’s compensation pro-

cedures. The Court specifically analogized its decision to

Parratt and Hudson, stating, 105 S.Ct. at 3121:

21

Thus, the State’s action is not “complete” in the sense

of causing a constitutional injury “unless and until the

State fails to provide an adequate postdeprivation rem-

edy for the property loss.” Hudson v. Palmer, US.

; ,n. 12, 104 S.Ct. 3194, 3203, n. 19, 82 L.Ed.2d

393 (1984).

IV. ANY ASSUMED DIFFERENCES BETWEEN THE

FIFTH CIRCUIT’S OPINION AND THE OPINIONS

OF TWO OTHER CIRCUITS DO NOT WARRANT

CERTIORARI IN THIS CASE.

In affirming this case, the Fifth Circuit did reject unduly

restrictive interpretations of Parratt and Hudson applied by

the Second Circuit in Patterson v. Coughlin, 761 F.2d 886 (2d

Cir. 1985), cert. denied, 106 S.Ct. 879 (1986), and the Ninth

Circuit in Bretz v. Kelman, 773 F.2d 1026 (9th Cir. 1985).

While these opinions may demonstrate a difference in inter-

pretation of Parratt and Hudson among these circuits on

certain matters, this suit is not the appropriate case to

address such differences because Feldman and its predeces-

sors make the dispute academic. As this Court states in The

Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 184

(1959):

While this Court decides questions of public impor-

tance, it decides them in the context of meaningful liti-

gation. Its function in resolving conflicts among the

Courts of Appeals is judicial, not simply administrative

or managerial. Resolution here of the extent to which

these bill of lading provisions may be given effect by our

courts can await a day when the issue is posed less

abstractly.

In addition, the Fifth Circuit has followed not only the

letter but also the spirit of Parratt and Hudson in its

opinions in this case, while the Ninth Circuit and the

Second Circuit are apparently attempting to minimize the

22

application of Parratt and Hudson. In Bretz v. Kelman, the

Ninth Circuit held that Logan v. Zimmerman Brush Co., 455

U.S. 422 (1982), rather than Parratt, applied to an allegation

in a § 1983 suit that police, prosecutors and personal enemies

of the plaintiff conspired to falsely accuse and prosecute him

for burglary. In that case, the plaintiff was not attacking the

state trial proceeding itself, in which he was acquitted for lack

of credible evidence. 773 F.2d at 1027. In the view of the

Ninth Circuit, Parratt did not apply because the keystone to

the Parratt line of cases was that the alleged conduct was

random and unauthorized. The Ninth Circuit noted that a

conspiracy is not a random act “...even if it was accom-

plished without the endorsement of the state government

apparatus.” The Ninth Circuit concluded:

As in Logan, Bretz is challenging the direct abuse of the

state process itself. It is meaningless to speak of the

state’s ability to provide postdeprivation remedial pro-

cess when the state process itself has been abused. Con-

sequently, so as in Logan, the state cannot satisfy the

due process clause here by providing Bretz with a post-

deprivation remedy in state court in the form of a tort

action for malicious prosecution. 773 at 1031.

The Fifth Circuit declined to follow this reasoning, cor-

rectly noting that the Ninth Circuit’s interpretation of

“random acts” is really simply another aspect of intentional

versus ‘)nintentional acts treated by this Court in Hudson.

The Sixth Circuit has also rejected the argument that

“... alleged conspiratorial acts of public officials whose duty

» as to see that plaintiffs were not denied due process” are

excluded from random and unauthorized acts of misconduct

covered by Parratt and Hudson. National Communication

Systems, Inc. v. Michigan Public Service Commission, 789

F.2d 370, 372 (6th Cir.), cert. denied, 55 U.S.L.W. 3208, 3235

(Oct. 6, 1986). Under the Ninth Circuit’s interpretation,

23

if two prison officers intentionally destroyed Palmer’s prop-

erty, there would have been a violation of the Fourteenth

Amendment whether or not the state provided adequate

postdeprivation remedies. This interpretation simply mis-

reads Hudson. Hudson turns not on the number of persons

allegedly involved but on the state providing an adequate

compensation mechanism for purported improper but unau-

thorized and random deprivations by individuals.

The Ninth Circuit’s interpretation of Logan is also faulty.

Logan was not a challenge of an abuse of the state process,

but rather an attack on the state process itself. A this Court

specifically pointed out in distinguishing Parratt, 455 U.S.

at 436:

Unlike the complainant in Parratt, Logan is challenging

not the Commission’s error, but the “established state

procedure” that destroys his entitlement without

according him proper procedural safeguards.

The problem in Logan was not whether the Commission

either negligently or intentionally failed to process a com-

plainant’s discrimination charge within a specific period of

time, but rather that the institutional legal process of the

state itself extinguished the claimant’s rights if the Commis-

sion for any reason failed to act within a specified time.

Patterson v. Coughlin suffers a similar deficiency. In Pat-

terson v. Coughlin, the Second Circuit held that the depriva-

tion of the plaintiffs liberty was not a random and

unauthorized event. Therefore, it held that Parratt did not

apply because the state could provide a predeprivation hear-

ing. In fact, the state provided a hearing but subsequently

admitted that the hearing was constitutionally defective.

The Second Circuit also held that the postdeprivation pro-

ceeding provided by the state was inadequate for the

deprivation of liberty. This finding in Patterson that the

24

postjudgment remedy was inadequate distinguishes Patter-

son dramatically from this case. The Fifth Circuit did, how-

ever, reject some of the analysis in Patterson relied upon by

Petitioner. The Fifth Circuit noted that this Court had

expressly rejected a similar argument in Hudson, 104 S.Ct.

at 3204:

[Respondent] contends that, because an agent of the

state who intends to deprive a person of his property

“can provide predeprivation process, then as a matter of

due process he must do so.” .... This argument reflects

a fundamental misunderstanding of Parratt. There we

held that postdeprivation procedures satisfy due pro-

cess because the State cannot possibly know in advance

of a negligent deprivation of property. Whether an indi-

vidual employee himself is able to foresee a deprivation

is simply of no consequence. The controlling inquiry is

solely whether the State is in a position to provide for

predeprivation process.

Moreover, subsequent to Patterson, the Second Circuit

has recognized itself that under Feldman and Rooker the

lower federal courts are not permitted to review state court

proceedings. Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133,

1141-1143 (2d Cir. 1986).

Petitioner asks this Court not only to radically limit Par-

ratt and Hudson to merely trivial losses but also to overrule

or ignore its longstanding rule that lower federal courts have

no jurisdiction to- review state court proceedings.

25

CONCLUSION

For these reasons, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

Lous ben Le

THOMAS V. Muro III

4350 Beltway Drive

Dallas, Texas 75244

(214) 991-2222

COUNSEL OF RECORD FOR THE

BROWNING INTERESTS

W. JAMES KRONZER

1001 Texas Avenue

Suite 1030

Houston, Texas 77002

(713) 236-1722

COUNSEL OF RECORD FOR

R. JACK AYRES, JR.

EDWIN E. WRIGHT, III

Stradley, Schmidt, Stephens

& Wright

One Campbell Centre

Dallas, Texas 75206

(214) 696-4880

ADDITIONAL COUNSEL FOR

R. JACK AYRES, JR.

26

CERTIFICATE OF SERVICE

I hereby certify that on this 24& day of October, 1986,

three copies of Brief in Opposition of the Browning Respon-

dents were mailed, postage prepaid, to Mr. Laurence H.

Tribe, attorney of record for Petitioner, 1525 Massachusetts

Avenue, Cambridge, Massachusetts 02138, and to all coun-

sel of record who appeared for the various Respondents at

the court of appeals. I further certify that all parties

required to be served have been served.

ZPonat LLY ard

THOMAS V. MurtTo III

U.S. COURT OF APPEALS

FILED

MAR 19 1986

GILBERT F. GANUCHEAU

In The CLERK

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 86-1164

IN RE:

PAT S. HOLLOWAY,

Petitioner

On Application for a Writ of Habeas Corpus

- Before CLARK, Chief Judge, POLITZ, and WILLIAMS,

Circuit Judges.

BY THE COU RT:

Pat S. Holloway petitions this Court to issue a writ of

habeas corpus cum causa ad subjiciendum. The bases of the

petition are threefold: (1) the order of the district court

adjudging him to be in civil contempt and fixing the condi-

tions for purging that contempt constitutes a restraint of

liberty, (2) this and the underlying turnover enforcement

order the district court found to be contempted are not

appealable, and (3) the state court judgments enforced by

the underlying order are constitutionally invalid.

A-2

The order of civil contempt is not a restraint of liberty

unless petitioner voluntarily chooses to make it so by con-

tinuing to defy the lawful orders of the district court. The

entire sequence of turnover orders and enforcement orders

issued in aid thereof are injunctive in nature and therefore

were appealable. The inferior courts of the United States

lack jurisdiction to test petitioner’s claim that the chal-

lenged state court judgments are constitutionally invalid.

The petition is

DENIED.

B-1

! IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

| DALLAS DIVISION

PaT S. HOLLOWAY, Individually, HUMBLE EXPLORATION Com-

PANY, INC., AND STERLING PIPELINE COMPANY, and DON

NAVARRO, Trustee of the Estates of HUMBLE EXPLORATION

COMPANY, INC. and PaT S. HOLLOway,

Plaintiffs,

VS.

JUDGE DEE BROWN WALKER, JUDGE OF THE 162ND JUDICIAL

DISTRICT COURT OF DALLAS COUNTY, TEXAS, G. H. KELSOE,

JR., R. JACK AYRES, JR., Individually, and as a Professional

Corporation, JOHN WRIGHT, WHITLEY R. SESSIONS, J. R.

HuRT, JANE H. BROWNING, Individually as Co-Independent

Executrix & as Co-Trustee, of the ESTATE OF WILLIAM W.

BROWNING JR., Deceased, MICHAEL G. STARNES, Individually

as Co-Independent Executor of the ESTATE OF WILLIAM W.

BROWNING, JR., Deceased, and as Trustee for Kathryn

Louise Browning Cook, Averille Adams Browning, William

Webb Browning III, Winifred Fallon Browning, and Robert

Holland Browning; CATHERINE AGNES LAND STARNES, Indi-

vidually; KATHRYN LOUISE BROWNING Cook, Individually,

AVERILLE ADAMS BROWNING, Individually, WILLIAM WEBB

BROWNING III, ROBERT HOLLAND BROWNING, Individually,

and WINIFRED FALLON BROWNING, Individually, and FAIrR-

WAY LAND COMPANY, FAYETTE OIL COMPANY, AMCAP

PETROLEUM ASSOCIATES-1977, AMCAP PETROLEUM ASSOCI-

ATES-1977B, AMERICAN HAWK OIL COMPANY, AMERICAN FAL-

CON OIL COMPANY, AMERICAN EAGLE OIL COMPANY,

AMERICAN HERON OIL COMPANY, AMERICAN WREN OIL Com-

PANY, AMERICAN RAVEN OIL COMPANY, HARPER OIL COMPANY

and JEFFREY WEISS and DONALD GINSBERG, Indi-

vidually, and as General Partners of AMERICAN PETROLEUM

PARTNERS,

Defendants.

NO. CA-3-82-1846-H

Se ee

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PLAINTIFFS’ FIRST AMENDED COMPLAINT AND

APPLICATION FOR DECLARATORY AND

INJUNCTIVE RELIEF

PAT S. HOLLOWAY, Individually (“HOLLOWAY”),

HUMBLE EXPLORATION COMPANY, INC.

(“HUMBLE”), STERLING PIPELINE COMPANY

(“STERLING”), AND DON NAVARRO, Trustee of the

Estates of Humble Exploration Company, Inc. and PAT S.

HOLLOWAY (“NAVARRO”), Plaintiffs herein, file this

their First Amended Complaint and Application for Injunc-

tive and Declaratory Relief, complaining of JUDGE DEE

BROWN WALKER, individually and in his official capacity

as JUDGE OF THE 162ND JUDICIAL DISTRICT

COURT OF DALLAS COUNTY, TEXAS, G. H. KELSOE,

JR., R. JACK AYRES, JR., Individually, and as a profes-

sional corporation, JOHN WRIGHT, WHITLEY R. SES-

SIONS, J. R. HURT, JANE H. BROWNING, Individually

and as Co-Independent Executrix and as Co-Trustee of the

ESTATE OF WILLIAM W. BROWNING, JR., Deceased,

MICHAEL G. STARNES, Individually and as Co-Indepen-

dent Executor of the ESTATE OF WILLIAM W. BROWN-

ING, JR., Deceased, and as Trustee for Kathryn Louise

Browning Cook, Averille Adams Browning, William Webb

Browning III, Winifred Fallon Browning, and Robert Hol-

land Browning; CATHERINE AGNES LAND STARNES,

Individually, AVERILLE ADAMS BROWNING, Individu-

ally, WILLIAM WEBB BROWNING III, Individually, and

ROBERT HOLLAND BROWNING, Individually, (“THE

BROWNINGS”); FAIRWAY LAND COMPANY,

FAYETTE OIL COMPANY, AMCAP PETROLEUM

ASSOCIATES — 1977, AMCAP PETROLEUM ASSOCI-

ATES — 1979B, AMERICAN HAWK OIL COMPANY,

AMERICAN FALCON OIL COMPANY, AMERICAN

EAGLE OIL COMPANY, AMERICAN HERON OIL COM-

PANY, AMERICAN WREN OIL COMPANY, AMERICAN

RAVEN OIL COMPANY, HARPER OIL COMPANY, JEF-

FREY WEISS and DONALD GINSBERG, Individually and

as General Partners of AMERICAN PETROLEUM PART-

NERS, (hereinafter the “APP Entities”), and ALLIED

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FIDELITY INSURANCE COMPANY (“ALLIED”),

Defendants herein, and for their complaint would show the

Court:

* + *

197. WHEREFORE, Plaintiffs respectfully pray this

Court advance this case on the docket, order a speedy hear-

ing at the earliest practicable date, and upon such hearing

enter a permanent injunction enjoining each and every

Defendant or any of their agents, employees, attorneys, or

persons participating with them from:

1. Taking any further action in the 162nd Judicial Dis-

trict Court of Dallas County, Texas, in Cause No. 82-

5742-I, Fairway Land Company, et al v. Humble

Exploration Company, Inc., and from acting in any way

in any type of legal proceeding involving in any way

Humble, Sterling, Pat S. Holloway, his present or for-

mer wife, or any present or former officer, employee, or

agent of Plaintiffs or any person or entity related to

any of the foregoing;

2. Maintaining or pursuing, in any court, any receivership

and/or injunctive proceeding and/or relief against any

of the named Plaintiffs herein, their agents, servants,

employees, attorneys, or persons in participation with

them;

3. Attempting to collect or enforce in any way any order

or judgment heretofore or hereafter made or entered by

Defendant Judge Walker; and

4. Taking any further action in an attempt to interfere in

any way with the lawful owner’s operation at the busi-

ness of Humble or from any attempt to manage the

assets and/or interests of any of said Plaintiffs herein.

198. Plaintiffs further pray that the Court order any fur-

ther equitable and injunctive relief as it deems appropriate

and necessary to correct the conditions complained of

herein.

200. Plaintiffs further pray that this Court grant them

their costs of court, reasonable attorney’s fees, and such

a ee ee

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other additional or alternative relief as may appear to the

Court to be equitable, reasonable and just.

PRAYER

WHEREFORE, Plaintiffs pray for a judgment:

Re

Declaring that the Stipulation and Agreement which

became part of the Bankruptcy Court’s judgment ren-

dered by the United States Bankruptcy Court on the

docket of said Court establishes a complete and con-

clusive bar against any relief asserted by the

Defendants Browning based in any way on any

proceeding occuring by Cause Nos. 82-5742-I or 79-

9623-L;

. Declaring that the final judgment entered by

Defendant Judge Walker on August 26, 1982, and all

other orders or judgments heretofore or hereafter

entered by Defendant Judge Walker in Cause No. 82-

5742-I or 79-9623-L are void and of no force or effect

for lack of due process;

That a permanent injunction be issued ordering the

named Defendants, their agents, servants, employees,

attorneys and all persons in active concert and partic-

ipation with them from taking any further action

against the named Plaintiffs;

. That Plaintiffs recover actual damages from

Defendants jointly and severally, for Defendants’ vio-

lation of 42 U.S.C. § 1983, which sum is alleged to be

in excess of Fifty Million Dollars ($50,000,000);

. That Plaintiffs recover actual damages from

Defendants for Defendants’ conspiracy to violate 42

U.S.C. § 1983 (Count Two) which sum is alleged to be

in excess of Fifty Million Dollars ($50,000,000);

That Plaintiffs recover as punitive damages from

Defendants jointly and severally for their malicious

intent to violate 42 U.S.C. § 1983, an amount of at

least One Hundred Million Dollars ($100,000,000),

10.

11.

13.

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and that Plaintiff Holloway individually recover

against Defendants for the mental anguish and suffer-

ing caused by Defendants’ violation of his civil rights

without due process of law in violation of 42 U.S.C.

§ 1983 in an amount yet to be determined by Plaintiff

Holloway;

. That Defendants be divested of any interest, direct or

indirect, in Humble, Holloway or Sterling, and that an

order be entered restricting Defendants from prose-

cuting any claims against any of the Plaintiffs which

arose prior to the institution of this action and pro-

hibiting any of the Defendants from engaging in the

same type of endeavors as Humble, Holloway, or Ster-

ling is presently engaged in or in which any of them

has in the past been engaged;

Requiring Defendants jointly and severally to account

to Plaintiffs for all moneys received, expended, dis-

bursed, and retained by Defendants from the

Plaintiffs;

That upon said accounting Plaintiffs have judgment

against Defendants, jointly and severally for the

amount found due;

That Plaintiffs be awarded a judgment against

Defendant Wright for his grossly negligent and

incompetent mishandling of Humble and Holloway

property, assets, and business operations while he was

a receiver over the Plaintiffs. The amount of actual

and punitive damages has yet to be determined, but

Plaintiffs represent that the amount is well in excess

of jurisdictional limits of this court;

That Plaintiffs recover all damages to which they are

justly entitled, which sum is alleged to be in excess of

the minimal jurisdictional requirements of this Court;

Awarding Plaintiffs their costs of suit and attorney’s

fees pursuant to 42 U.S.C. § 1988;

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14. For the maximum amount of pre- and post-judgment

interest on all damages as permitted by law; and

15. Granting Plaintiffs such other and further relief to

which Plaintiffs may be justly entitled either at law or

equity.

Respectfully Submitted

REYNOLDS, ALLEN & COOK

Incorporated

By: JOE H. REYNOLDS

Joe H. Reynolds

3300 Allied Bank Plaza

Houston, Texas 77002

(713) 651-1300

JAMAIL & KOLIUS

By: JOSEPH D. JAMAIL, JR.

Joseph D. Jamail, Jr.

3300 One Allen Center

Houston, Texas 77002

(713) 651-3000

ATTORNEYS FOR PLAINTIFFS

OF COUNSEL:

KAY K. PIERCE

T. LAMAR McCORKLE, JR.

BRUCE BENNETT

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U.S. District Court

Northern District Of Texas

FILED

MAR 28 1985

Nancy Hall Doherty, Clerk

By DW.

Deputy

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PAT S. HOLLOWAY, et al.

Plaintiffs

Ve

JUDGE DEE BROWN WALKER, et al.

Defendants

Civil Action No. 3-82-1846-H

MEMORANDUM OPINION AND ORDER

This case is before the Court on Defendants The Brown-

ing Interests’! Motion for Summary Judgment and Motion

to Dismiss, filed January 29, 1985; Plaintiffs’ Response, filed

February 21, 1985; and Defendants’ Rejoinder, filed

March 13, 1985.

Defendants have adopted the Motion for Summary Judg-

ment of Defendant R. Jack Ayres, Jr. Rather than repro-

duce here the lengthy ruling on that Motion, the Court

hereby incorporates the Memorandum Opinion and Order,

filed March 11, 1985. The Court granted the Motion with

\Jane H. Browning, Michael G. Starnes, Catherine Agnes Land

Starnes, Katherine Browning Cook, Averille Browning Dawson, William

Browning III, Winifred Fallon Browning, and Robert Browning.

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respect to Plaintiffs’ procedural due process claims, and

denied it in all other respects.

Defendants here argue that there is no summary judg-

ment evidence linking them with the alleged conspiracy to

deprive Plaintiffs of their constitutional right to a fair trial.

They argue that they cannot be held vicariously liable for

any actions of their attorneys, Defendants Kelsoe and

Ayres.

Michael Starnes and Jane Browning have provided affi-

davits stating that they “handled all of the direction and

guidance to the attorneys in [the state cases].” They avow

that they had no ex parte contacts or communications with

Judge Walker”, and never “authorized either of our attor-

neys or any other party to make any improper effort to

obtain Judge Walker to rule in any manner in our behalf in

either the Browning v. Holloway case or the Fairway Land

case”. Further, they state that they “have not participated in

nor have I or anyone else representing the Browning Inter-

ests authorized our attorneys or anyone to manipulate the

docket, conspire with others or in any other manner attempt

to improperly affect the result of either the Browning v.

Holloway case or the Fairway Land case.

Plaintiffs have produced no evidence rebutting this denial.

They have cited no acts allegedly committed in furtherance

of the conspiracy by the Brownings. Although there cer-

tainly is a line of authority for supervisory liability under

§ 1983, there is no fact issue as to any improprieties in con-

trol or direction of the attorneys, see Rizzo v. Goode, 423 U.S.

362 (1976), personal participation, affirmative promotion of

a policy which sanctions the type of action which caused the

violation, see Duchesne v. Sugerman, 566 F.2d 817, 830-31

2Plaintiffs have presented evidence pertaining to alleged ex parte meet-

ings involving Starnes on May 14, 1982, and Jane Browning on August 31,

1982. The May meeting, prior to the filing of the lawsuits, was in no sense

improper, see Gillette, Weiss, Musselwhite and Ayres affidavits, filed with

Defendant APP Entities’ Motion, and is not relevant to the civil rights

claim as defined by this court. Jane Browning was not present at the

August meeting. Nye Affidavit.

<a RN al eer. _

a

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(2d. Cir. 1977), or violation of an explicit duty to supervise.

See Howard v. Fortenberry, 723 F.2d 1206 (5th Cir. 1984).

Although the Court recognizes the importance in a civil

rights conspiracy action to allow a plaintiff to prove all per-

missible inferences from actions shrouded in secrecy, see

Ferguson v. Omnimedia, Inc., 469 F.2d 194, 198 (1st Cir.

1972), Plaintiffs have not, after years of discovery, produced

sufficient evidence of conspiratorial agreement or conduct

by the Browning Interests.

Accordingly, Defendants’ Motion for Summary Judgment

should be, and hereby is, GRANTED IN PART with

respect to the federal claims and RESERVED with respect

to the pendent state-law claims.

SO ORDERED.

DATED: March 28, 1985.

a CUCU

BAREFOOT SANDERS

UNITED STATES DISTRICT JUDGE

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TEXAS RULES OF CIVIL PROCEDURE

Rule 18a. Recusal or Disqualification of Trial Judge

(a) At least ten days before the date set for trial or other

hearing in district court, any party may file with the clerk a

motion stating grounds why the judge before whom the case

is pending should not sit in the case. The grounds may

include any disability of the judge to sit in the case.

(b) On the day the motion is filed, copies shall be served

on all other parties or their counsel of record, together with

a notice that movant expects the motion to be presented to

the judge three days after the filing of such motion unless

otherwise ordered by the judge. Any other party may file

with the clerk an opposing or concurring statement at any

time before the motion is heard.

(c) Prior to any further proceedings in the case, the judge

shall either recuse himself or request the presiding judge of

the administrative judicial district to assign a judge to hear

such motion. If the judge recuses himself, he shall enter an

order of recusal and request the presiding judge of the

administrative judicial district to assign another judge to sit,

and shall make no further orders and shall take no further

action in the case except for good cause stated in the order

in which such action is taken.

(d) If the judge declines to recuse himself, he shall for-

ward to the presiding judge of the administrative judicial

district, in either original form or certified copy, an order of

referral, the motion, and all opposing and concurring state-

ments. Except for good cause stated in the order in which

further action is taken, the judge shall make no further

orders and shall take no further action in the case after

filing of the motion and prior to a hearing on the motion.

The presiding judge of the administrative judicial district

shall immediately set a hearing before himself or some other

judge designated by him, shall cause notice of such hearing

to be given to all parties or their counsel, and shall make

such other orders including orders on interim or ancillary

relief in the pending cause as justice may require.

ee

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(e) If within ten days of the date set for trial or other

hearing a judge is assigned to a case, the motion shall be

filed at the earliest practicable time prior to the commence-

ment of the trial or other hearing.

(f) If the motion is denied, it may be reviewed for abuse of

discretion on appeal from the final judgment. If the motion )

is granted, the order shall not be reviewable, and the presid-

ing judge shall assign another judge to sit in the case.

(g) The Chief Justice of the Supreme Court may also

appoint and assign judges in conformity with this rule and

pursuant to Article 200a.

(Added by order of June 10, 1980, eff. Jan. 1, 1981.)

This is a new rule.