Opposition Brief — Holloway v. Walker

vuprense vee ewe

FILED

5

NOV # 1986

= “JOSEPH SRANIOL, JR.

CLERK

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No. 86-271 ss

In The

Supreme Court of the United States

OCTOBER TERM, 1986

PaT S. HOLLoway,

Petitioner,

v.

JUDGE DEE BROWN WALKER, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENT KELSOE’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

R. BRENT CooPER, Counsel of Record

JUDITH H. WINSTON

4000 InterFirst Plaza

901 Main Street

Dallas, Texas 75202

(214) 670-1100

Attorneys for Respondent

G. H. KELSOE, JR.

November, 1986

Q*

i

STATEMENT OF QUESTIONS PRESENTED

Whether the loser in a state court trial may obtain a

review of the state court judgment in a United States

district court by bringing a suit under 42 U.S.C. § 1983

alleging deprivation of property without due process in

the state court trial.

Whether the rule enunciated in the Parratt v. Taylor

and Hudson v. Palmer decisions of the United States

Supreme Court applies to an alleged deprivation of

property without due process in a state court trial when

the state provides an appellate review process to correct

errors made by the trial judge.

ii

TABLE OF CONTENTS

STATEMENT OF QUESTIONS PRESENTED ... i

TABLE OF CONTENTS 3 ...0.ccccsccsvewssnecens il

TABLE OF AUTHORITIES ....cccccscccaeccenns iil

CONSTITUTIONAL PROVISION AND

STAT 1 CVV ones vec cewscndtewa cadens

2

id) 3 yy) Seer eater cr rrr 2

STATEMBINS OF CABS oni ccscvcenvsenccspeaees 2

SUMMARY OF THE ARGUMENT .............. 8

REASONS FOR NOT GRANTING THE WRIT ... 8

I. THE LOWER FEDERAL COURTS HAD

NO JURISDICTION IN THIS CASE

BECAUSE PETITIONER’S CLAIMS

REQUIRE REVIEW OF A STATE

CADIIS 2 ROARED. ws bees naa eens senses 8

il. THE FIFTH CIRCUIT CORRECTLY

APPLIED THIS COURT’S DECISIONS IN

PARRATT V. TAYLOR AND HUDSON V.

PALMER IN THIS CASE. ....sesccccccees 12

Il. THE FIFTH CIRCUIT’S DECISION DOES

NOT CONTRADICT THIS COURT’S

HOLDING IN AETNA LIFE INSURANCE

CO. V. LAVOIE AND DOES NOT

TRIVIALIZE THE RIGHT TO

es ge || ee er ore 18

IV. THE FIFTH CIRCUIT CORRECTLY

FOLLOWED PARRATT AND HUDSON

CASES INSTEAD OF THE HOLDINGS

OF OTHER CIRCUITS, AND ANY

DIFFERENCES BETWEEN THE

CIRCUIT OPINIONS DO NOT

WARRANT A GRANT OF THE WRIT

OF CERTIORARI IN THIS CASE ........ 20

CONCLUSION incincvathsnceacessssaeaeeneeeia 23

CERTIFICATE OF SERVICE. .......ccsvcsscescs, 24

lil

TABLE OF AUTHORITIES

Page

Cases

Aetna Life Insurance Co. v. Lavoie, 106

EES 8, 14, 18

Atlantic Coast Line Railroad Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281 (1970) ........... 9

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

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

rev'd, 743 F.2d 1069 (5th Cir. 1984) ............... 5, 6

Browning v. Placke, 698 S.W.2d 362 (Tex. 1985) ........ 3

Daniels v. Williams, 106 S.Ct. 662 (1986) ............. 13

Dennis v. Sparks, 449 U.S. 24 (1980) .............. 14, 16

District of Columbia Court of Appeals v. Feldman,

Cees kein dew ecb bvcvarerccce 7,9

Ex parte Virginia, 100 U.S. 339 (1880) ................ 14

Federal Trade Commission v. Cement Institute,

ide eccecvecees 20

Holloway v. Walker, 784 F.2d 1287, rehearing

denied, 790 F.2d 1170 (5th Cir. 1986) ........... passim

Holloway v. Walker, 800 F.2d 479 (5th Cir. 1986) ....... 3

Home Telephone & Telegraph Co. v. Los Angeles,

ccc ccavsasveccsccers 15

Hudson v. Palmer, 468 U.S. 517 (1984) ........... passim

Humble Exploration Co. v. Browning, 677 S.W.2d

111 (Tex. App.—Dallas 1984), opinion on

rehearing en banc, 690 S.W. 2d 321 (Tex. App.—

Dallas 1985, writ ref’d n.r.e.), cert. denied,

ee evan sebicscocccscaccvecces 2,037

In re Murchison, 349 U.S. 133 (1955) ................. 19

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

ak Gace sw d ese nceavans 15, 21, 22

iV

TABLE OF AUTHORITIES — (Continued)

Page

Cases

Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) .......... 20

Monroe v. Pape, 365 U.S. 167 (1961)..............066- 14

National Communication Systems, Inc. v.

Michigan Public Service Commission,

789 F.2d 370 (6th Cir. 1986), cert. denied,

BRR Ae Pe, | ee ere 21

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

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

1985), cert. denied, 106 S.Ct. 879 (1986) ............ 20

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

State Bar of Texas v. Howell, 674 F.2d 1027

(5th Cir. 1982), vacated and remanded, 460

U.S. 1065 (1983), opinion on remand, 710

F.2d 1075 (5th Cir. 1983), cert. denied, 466 U.S.

OR CT i is as RAL a Ri cdc crer cess 11

Tumey v. Ohio, 273 U.S. 510 (1927) .......cccceeeees 19

Ward v. Village of Monroeville, 409 U.S. 57 (1972) ..... 19

Statutes

bf ae 2 Ee Nr remy errr ere passim

Constitutional Provisions

United States Constitution, Fourteenth

TIE 6k oo 5 58 oh hh 50 th ee passim

No. 86-271

In The

Supreme Court of the United States

OCTOBER TERM, 1986

PaT S. HoLLoway,

Petitioner,

v.

JUDGE DEE BROWN WALKER, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

RESPONDENT KELSOE’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondent Kelsoe respectfully requests that this Court

deny the Petition for Writ of Certiorari filed by Pat S. Hol-

loway seeking review of the judgment of the United States

Court of Appeals for the Fifth Circuit. The Fifth Circuit’s

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

F.2d 1170 (5th Cir. 1986).

2

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED

U.S. Constitution, Amendment XIV:

No State shall ... deprive any person of life, liberty, or

property without due process of law ...

42 U.S.C. § 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceedings for redress.

JURISDICTION

Petitioner has applied for a Writ of Certiorari to the

Court of Appeals for the Fifth Circuit. There is no federal

jurisdiction in this case because the federal district court

had no subject matter jurisdiction to review a state court

judgment.

STATEMENT OF THE CASE

This case was brought under 42 U.S.C. § 1983 and

involves civil rights allegations that stem from two consoli-

dated state court cases in which Petitioner Holloway was a

Defendant. After losing in the original state court trial, Hol-

loway pursued the full spectrum of state appellate remedies,

appealing to the Texas Court of Appeals, where he lost, and

then applying to the Texas Supreme Court for a Writ of

Error, which was refused. He then applied to this Court for

a Writ of Certiorari, which was also refused. Humble Explo-

ration Co. v. Browning, 677 S.W.2d 111 (Tex. App. — Dallas

3

1984), opinion on rehearing en banc, 690 S.W.2d 321 (Tex. App.

— Dallas 1985, writ ref'd n.r.e.), cert. denied, 106 S.Ct. 1376,

(1986). In the present action, brought against the parties who

were plaintiffs in the previous state court trial, their attorneys

and other participants in that trial, Holloway attempted to

collaterally attack the state court judgment via 42 U.S.C.

§ 1983.! Petitioner now seeks reversal of asummary judgment

rendered against him by the federal district court and affirmed

by the Fifth Circuit Court of Appeals.

'This suit is only one of a number of collateral attacks Petitioner has

made upon the single state judgment in both state and federal courts. He

and other plaintiffs filed Cause No. 8066, styled Jaehne, et al. v. Starnes,

et al., on June 17, 1985, in the 21st Judicial District Court of Lee County,

Texas. All Respondents in this case, except the APP Entities, are

Defendants in that case, in which Holloway sought a declaratory judg-

ment that the original state judgment rendered by the 162nd District

Court of Dallas County, Texas, was “void,” as well as other causes of

action including trespass to try title, based on the proceedings and judg-

ment in the prior state court action. Holloway as an attorney filed a sec-

ond suit in Lee County on behalf of members of his family, alleging

essentially the same claims, against certain of the Respondents here.

After the state judge declared the original judgment void, the Texas

Supreme Court conditionally granted an application for writ of man-

damus requiring vacation of this order. Browning v. Placke, 698 S.W.2d

362 (Tex. 1985). The state court later dismissed the consolidated action

for lack of jurisdiction. The case is currently on appeal to the Texas Court

of Appeals in Austin, Texas, where Holloway continues to assert that the

Dallas County judgment is void. Also, Holloway as an attorney for his

daughter and royalty interest owners filed Cause No. CA3-84-0850-H,

styled Gregory, et al. v. Walker, et al., in the United States District Court

for the Northern District of Texas, on May 25, 1984, against the Respon-

dents in this case. The same conspiracy allegations that are contained in

this suit were set forth in that case as a R.I.C.O. (18 U.S.C. § 1961) action.

That case was dismissed on July 12, 1985. As for the federal courts, Hol-

loway has sought a determination by the bankruptcy court in his individ-

ual bankruptcy case that the original state judgment was void, by reason

of the same allegations made in this case, in the form of objections to the

Browning Interests’ claims for payment of their damages. He has also

sought relief in original proceedings in the Fifth Circuit, including a

habeas corpus action, alleging, among other claims, that he had diplo-

matic immunity from state court suit because he was an honorary Boli-

vian consul. The Fifth Circuit has rejected these claims. Holloway v.

Walker, 800 F.2d 479 (5th Cir. 1986).

4

Respondent Kelsoe is in this case because he was an

attorney for the winning side in the state court trial. By

bringing this action, Petitioner seeks to steal victory from

the jaws of defeat by claiming that that judgment should be

set aside and declared “void and of no force and effect”

because Petitioner was allegedly deprived of his property

without due process because Respondents allegedly con-

spired against Holloway to “fix” the jury trial in violation of

42 U.S.C. § 1983. (Petitioner’s Appendix, hereinafter Pet.

App., at A-25.)

The first state court case, styled Browning v. Holloway,

Cause No. 79-9623-I, was filed on September 11, 1979, by

the Brownings, defendants and Respondents in the present

case, who sought recovery from Holloway, Humble Explo-

ration Co. and others for breach of fiduciary responsibility

and fraud, asking damages and the imposition of a construc-

tive trust on certain assets. This case was assigned to the

193rd Judicial District Court of Dallas County, Texas. After

Holloway and Humble filed Chapter 11 voluntary bank-

ruptcy petitions on November 19, 1979, they removed the

state court case to the United States Bankruptcy Court,

which remanded the case back to the state court on Jan-

uary 18, 1980. On May 26, 1982, a second state court case,

styled Fairway Land Company, et al., v. Humble Exploration

Company, et al., No. 82-5742-I, was filed and randomly

assigned to Judge Walker of the 162nd Judicial District

Court of Dallas County, Texas. Plaintiffs in that case were

a group of investors, including APP Entities (petroleum

companies and partnerships that together are Respondents

here) who sued because Humble had shut in a number of

wells in which they had interests. This suit requested the

appointment of a receiver. The Brownings were defendants

in this suit, due to their claims against Holloway and Hum-

ble, but they were later realigned as plaintiffs.

5

The two actions were consolidated in the court of Judge

Walker, who appointed a receiver. Holloway filed a Motion

for Recusal against Judge Walker, in which he alleged bias

and conflict of interest, as again alleged in this § 1983

action. Pursuant to Texas procedure, this motion was heard

by another judge, who denied it after an extensive eviden-

tiary hearing. The case was then tried to a jury before Judge

Walker. The trial lasted more than six weeks and ended

with findings by the jury adverse to Holloway.

On November 11, 1982, judgment was entered granting

the Brownings $72 million damages from Holloway and

imposing a constructive trust over all of the stock of

Humble and Sterling Pipeline Company.

Holloway and the other state court defendants perfected

an appeal from that judgment on November 24, 1982. No

supersedeas bond to stay the enforcement of the state court

judgment was filed. The trustee of the bankruptcy estate

refused to turn over the property subject to the state court

judgment, and the Brownings then brought a turnover suit

to force the trustee to turn over the property. In their

counterclaim, the trustee and Holloway contended that the

state court judgment was void, claiming the state court had

no jurisdiction due to violation of the bankruptcy court’s

remand order and the remand was not effective. The United

States District Court held that the state court judgment was

indeed void. Browning v. Navarro, 37 B.R. 201 (N.D. Tex.

1983). ;

At that time, Holloway’s state court appeal of the original

judgment was also proceeding. After the federal district

court held that the state court judgment was void, the Texas

Court of Appeals dismissed the appeal, reasoning essentially

that Holloway had elected an inconsistent remedy in federal

court. The court noted that the grounds of the federal

6

district court’s opinion that the state court judgment was

void — that the trial court had no jurisdiction because of the

remand provisions — had not been presented to the trial

judge, but was presented for the first time on appeal. It

found that continuation of the state court appeal was

“a two-fold hardship” because essentially the same judg-

ment was being reviewed in both federal and state systems.

Humble Exploration Co. v. Browning, 677 S.W.2d at 113.

Holloway’s motion for rehearing of the dismissal of

the appeal was denied on September 7, 1984. Then, on Octo-

ber 1, 1984, the Fifth Circuit reversed the federal court’s

decision, holding the state court judgment was not void

because the remand order had been satisfied. Browning v.

Navarro, 743 F.2d 1069 (5th Cir. 1984). On October 3, 1984,

Holloway filed a motion in the state appellate court for

relief from its order dismissing the appeal. The court first

reinstated the appeal and then set aside the reinstatement

for violation of the Texas procedural rules and for being

unwarranted on the merits. The Texas Supreme Court

denied the appellants’ application for writ of error, and this

Court denied their Petition for Writ of Certiorari.

In his state court appeal, Petitioner argued that the fail-

ure to recuse Judge Walker deprived him of procedural due

process. The alleged violations of his due process rights due

to bias, corruption and unfair trial were also asserted by

Holloway in his Petition for Writ of Certiorari in this Court

on the dismissal of his appeal from the judgment against

him (Cause No. 85-1182).

The present 42 U.S.C. § 1983 action was filed in the fed-

eral district court just prior to the perfection of the state

court appeal. Holloway, Humble, Sterling and the trustee

sought a declaratory judgment that the state court judgment

was void for lack of due process and a permanent injunction

ania ei ae

7

against the defendants from taking any further action in the

state court case or attempting to collect on the state court

judgment, as well as compensatory and punitive damages,

among other relief. These plaintiffs alleged that the Brown-

ings, their attorneys and others had conspired with Judge

Walker to steal the plaintiffs’ assets through the conduct of

a rigged trial. After several years of discovery, all defendants

filed motions for summary judgment on the grounds that

the plaintiffs failed to state a cause of action under 42

U.S.C. § 1983 and that the evidence failed to show an issue

of fact regarding their alleged involvement in a conspiracy.

The district court granted Respondent Ayres’ motion with

respect to procedural due process claims but held that the

plaintiffs had stated claims of substantive due process that

would not be dismissed. (Pet. App. A-39). The district court

also held that it did not have subject matter jurisdiction to

review the state court judgment, based on this Court’s deci-

sion in District of Columbia Court of Appeals v. Feldman, 460

U.S. 462 (1983) (Pet. App. A-36-38). On reconsideration, the

district court agreed that the claims dealt with procedural

due process. It granted all the motions for summary judg-

ment, dismissing plaintiffs’ claims, based on this Court’s

decisions in Parratt v. Taylor, 451 U.S. 527 (1981), and Hud-

son v. Palmer, 468 U.S. 517 (1984). (Pet. App. A-17).?

Holloway appealed to the Fifth Circuit Court of Appeals,

which affirmed the federal district court’s grant of summary

judgment, holding that under Parratt and Hudson, the

appellants were not deprived of property without due pro-

cess. (A-16.) Holloway v. Walker, 784 F.2d 1287, rehearing

denied, 790 F.2d 1170 (5th Cir. 1986). The Petition for

*At the time Ayres’ Motion for Summary Judgment was granted, on

April 18, 1985, the district court had already granted the Brownings’

Motion for Summary Judgment on March 28, 1985. The court found that

the Plaintiff had not produced sufficient evidence of conspiratorial agree-

ment or conduct by the Brownings “after years of discovery.”

8

Rehearing was denied in a Fifth Circuit opinion filed May 30,

1986. (A-60.). The Petition for Writ of Certiorari

followed.

SUMMARY OF THE ARGUMENT

This Court should not grant the writ in this case for several

reasons. The lower federal courts had no subject matter juris-

diction over this case in the first place, inasmuch as

Petitioner’s constitutional allegations are inextricably inter-

twined with the legal determinations of a state court and

would necessarily require those federal courts to review that

state judgment, which they may not do. This lack of subject-

matter jurisdiction alone precludes any need for this Court

to hear this case.

Moreover, the Fifth Circuit correctly applied this Court’s

opinions in Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson

v. Palmer, 468 U.S. 517 (1984), in granting summary judgment

to Respondents. All the elements required for application of

the Parratt-Hudson rule are present in this case. The decision

here does not conflict with this Court’s decision in Aetna Life

Insurance Co. v. Lavoie, 106 S.Ct. 1580 (1986), which involved

a direct appeal to this Court of a state judgment on due process

grounds and included no issues raised by the Parratt-Hudson

rule. Cases from other circuits, which Petitioner claims con-

flict with the Fifth Circuit opinion in this case, are clear

contraventions of the holdings of Parratt and Hudson them-

selves. Thus, this Court has no need to grant the Writ of

Certiorari in this case.

REASONS FOR NOT GRANTING THE WRIT

I. THE LOWER FEDERAL COURTS HAD NO JURIS-

DICTION IN THIS CASE BECAUSE PETITIONER’S

CLAIMS REQUIRE REVIEW OF A STATE COURT

DECISION.

9

While the Fifth Circuit’s opinion in this case turns on due

process in light of the Parratt-Hudson rule, the case presents

a much more basic jurisdictional situation that precludes any

need for review by this Court. Holloway’s claims in this case

would require the lower federal courts to teview the state

court’s legal determinations in the original state court action,

which they have no jurisdiction to do.

Lower federal courts possess no power whatever to sit in

direct review of state court decisions. District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482 n. 16 (1983);

Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive

Engineers, 398 U.S. 281 (1970). They have no jurisdiction over

challenges to state court decisions in particular cases arising

out of judicial proceedings, even if those challenges allege that

the state court’s action was unconstitutional. Feldman, 460

U.S. at 486. One who is aggrieved by a state court’s decision

allegedly violating a federal right may seek vindication of this

federal right in the state appellate courts and ultimately in

this Court, if necessary. Atlantic Coast Line, 398 U.S. at 296.

Federal review of such state court decisions may be had only

in this Court. Feldman, 460 U.S. at 486; Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923).

In Feldman, this Court set out its test for determining

when the federal court is being asked to review a state court

decision:

‘Although this issue was before the Fifth Circuit, that Court chose to dis-

cuss cnly the Parratt-Hudson rule in its opinion. However, the Fifth Cir-

cuit’s denial of relief to Holloway in his related habeas corpus proceeding

was hased on this point. The Court held, “The inferior courts of the United

States lack jurisdiction to test Petitioner's claim that the challenged state

judgments are constitutionally invalid.” (Appendix to Brief of Respondents

Browning Interests and Ayres, page A-2.)

10

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 par-

ticular plaintiff's 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 dis-

trict court may not do.

460 U.S. at 482 n. 16.

In his Petition for Writ of Certiorari, Petitioner states

that the question here is “whether the harms [Judge

Walker] visited upon Petitioner were brought about through

his conduct of a trial, his entry of an award of damages, his

imposition of receiverships and constructive trusts, and his

rendering of a judgment n.o.v. ...” (Petition at 14). The

Complaint in this case is threaded with allegations that

Judge Walker consistently ruled against Petitioner on

important evidentiary matters, made legally erroneous com-

ments, took actions with no valid reason, allowed irrelevant

questions that were highly prejudicial to Petitioner, made

statements intended to prejudice Petitioner in the eyes of

the jury, granted all the opposition’s special issues and over-

ruled all Petitioner’s objections to them, and that adverse

rulings as a whole amounted to an instructed verdict and

deprived Petitioner of a meritorious defense. (R. Vol. 19,

“A”, pages 35-40). The federal district court noted that

“virtually all of [the trial improprieties alleged in this suit],

including the allegations of bias, are among the 211 points

of error urged on appeal from the state court trial,” conclud-

ing that the acts allegedly “evidencing and causing the

deprivation are, for the most part, errors of law on appeal.”

(Pet. App. A-30.)

Petitioner apparently wishes to argue that the entry of a

judgment n.o.v. by Judge Walker, for example, is evidence of

a ee ee F

11

his participation in a conspiracy to deprive Petitioner of his

property. The issue before the federal court would be

whether the judgment was justified based on the facts and

law before Judge Walker. To claim that this act, and the

others complained of, evidence a deprivation of property

without due process is to inextricably intertwine the consti-

tutional claims with the state court’s decision in a judicial

proceeding. In essence, the district court is being asked to

review the state court judgment. As in Feldman, this review

is impermissible. The district court had no jurisdiction. Feld-

man, 460 U.S. at 486.

This Court has applied the Feldman ruling to a § 1983

action including a claim of unfair trial in vacating and

remanding for reconsideration in light of Feldman the Fifth

Circuit decision in State Bar of Texas v. Howell, 674 F.2d

1027 (5th Cir. 1982), vacated and remanded, 460 U.S. 1065

(1983), opinion on remand, 710 F.2d 1075 (5th Cir. 1983),

cert. denied, 466 U.S. 950 (1984). The plaintiff in that case,

an attorney, brought a § 1983 action complaining that a dis-

ciplinary proceeding brought against him in state court vio-

lated the United States Constitution and _ seeking

declaratory and injunctive relief. Among other things, he

claimed that he was deprived of his right to a jury trial and

his right to a fundamentally fair trial in the state court pro-

ceeding. On remand after this Court vacated the original

reversal of the district court’s dismissal, the Fifth Circuit

analyzed the plaintiffs claims in light of Feldman, as

required by this Court, and found that these claims were

‘The judgment in the state court case was not in fact a judgment n.o.v.

The judgment was based on jury findings favorable to the plaintiffs in

that case. The fact that the jury did not find for the plaintiffs on two jury

issues on which they had the burden of proof is not an affirmative jury

finding favorable to the defendants. Multiple findings favorable to the

state court plaintiffs supported the judgment.

12

“inextricably intertwined with the state court’s decision in a

judicial proceeding.” 710 F.2d at 1077. With respect to all

the plaintiff's claims except his attack on the constitutional-

ity of the state bar disciplinary scheme, the Fifth Circuit

said, “[{Plaintiff] has done nothing more than ask the dis-

trict court to sit as an appellate court and review the state

court judgment.” Jd.

If Petitioner successfully invokes jurisdiction of the fed-

eral district court here, then any disgruntled, losing litigant

is offered the possibility of avoiding the effect of a judgment

against him in state court, even after he has directly

attacked the state court’s judgment all the way through the

state court system and has been turned away from the doors

of this Court. All he need do is claim the state judge con-

spired with the winning litigants to deprive him of his prop-

erty without due process of law. He then can obtain an

additional review of his lost case in the guise of examining

the propriety and merits of the state judge’s actions and

decisions. Such is not the intention of 42 U.S.C. § 1983. The

district court had no subject matter jurisdiction over this

case, so this Court has no need to grant the Writ of Certio-

rari to hear the Fourteenth Amendment due process issue

raised by Petitioner.

II. THE FIFTH CIRCUIT CORRECTLY APPLIED

THIS COURT'S DECISIONS IN PARRATT V. TAY-

LOR AND HUDSON V. PALMER IN THIS CASE.

This Court’s decisions in Parratt v. Taylor, 451 U.S. 527

(1981), and Hudson v. Palmer, 468 U.S. 517 (1984), refined

the concept of what constitutes a sufficient allegation of a

violation of the Fourteenth Amendment Due Process

Clause. Parratt established that if a deprivation of property

was not due to an established state procedure but was

13

caused by the random and unauthorized act of a state agent,

making predeprivation process impracticable because the

state cannot know when such deprivations will occur, and if

postdeprivation remedies provided by the state are ade-

quate, the person has not been deprived of property without

due process of law. Although Parratt dealt with a negligent

deprivation, the Hudson decision extended the Parratt rule

to unauthorized intentional deprivations of property by

state employees acting under color of law.> 104 S.Ct. at 3204.

Petitioner apparently claims Parratt-Hudson is inapplica-

ble here because Judge Walker could have provided ade-

quate predeprivation process but allegedly did not. On the

contrary, this case is closely analogous to Hudson. It pre-

sents a claim for procedural due process violations due to

the alleged intentional misconduct of a state agent, in this

case a state judge. As in Parratt and Hudson, the state could

not possibly know when such misconduct was likely to

occur. The alleged deprivation was not due to the operation

of an established state procedure; rather the entire case

revolves around allegations that the state judge did not fol-

low state procedures. The availability of the appellate sys-

tem offered Petitioner process that could restore all his

property to him before he was finally deprived of it.

Petitioner apparently argues that because the state acts

through its agents and employees, an allegation that a state

judge has abused his power is automatically sufficient to

allege a due process violation in a 42 U.S.C. § 1983 action.

This argument confuses the inquiries required by § 1983.

‘This Court has recently held that the due process clause is not impli-

cated by the merely negligent act of an official causing unintended loss of

or injury to life, liberty or property, overruling Parratt in that narrow

context. Daniels v. Williams, 106 S.Ct. 662, 663 (1986). The present case

involves allegations of intentional deprivation of property, so the general

rule formulated in Parratt, as extended in Hudson, is applicable.

14

In citing this Court to Dennis v. Sparks, 449 U.S. 24

(1980), which involved only the question of whether private

persons who allegedly conspired with a state judge acted

under color of state law,® Petitioner apparently equates the

finding that an action was “under color of state law” in a

§ 1983 action with a determination that the alleged depriva-

tion was without due process. Whether the complained-of

act was action “under color of law” is an entirely different

question from that of whether there was a deprivation with-

out due process of law; these issues are two separate, essen-

tial elements of § 1983. Indeed, the Court in Parratt noted

the dual nature of the inquiry:

Since this Court’s decision in Monroe v. Pape, [365

U.S. 167 (1961)], it can no longer be questioned

that the alleged conduct by the petitioners in this

case satisfies the “under color of law” requirement.

Petitioners were, after all, state employees in posi-

tions of considerable authority. They do not seri-

ously contend otherwise. Our inquiry, therefore,

must turn to the second requirement — whether

respondent has been deprived of any right, privi-

lege or immunity secured by the Constitution or

laws of the United States.

451 U.S. at 535-36.

Likewise inapposite is Petitioner’s citation of Ex parte

Virginia, 100 U.S. 339 (1880), dealing with Congress’ power

to impose criminal penalties on state government officials

®Traditionally, this Court does not undertake to formulate a rule of

constitutional law broader than is required by the precise facts to which

it is to be applied. Aetna Life Ins. Co. v. Lavoie, 106 S.Ct. 1580, 1588 n.4

(1986). Since the question before the Court in Dennis involved only the

“under color of state law” requirement, Petitioner's claim that the Court

impliedly negated the applicability of Parratt-Hudson to a alleged conspir-

acy with a state judge, in a case that entirely predated Parratt, is

unwarranted.

15

for discriminating on the basis of race, and Home Telephone

& Telegraph Co. v. Los Angeles, 227 U.S. 278 (1913), dealing

with the question of whether an action had to be found to

comply with a state constitutional provision analogous to

the Fourteenth Amendment before it could be challenged on

Fourteenth Amendment grounds. Neither case has any rele-

vance to the determination of what constitutes due process

for § 1983 purposes. The opinion below does not conflict

with these cases.

As this Court stated clearly in Parratt, it is of no conse-

quence that the individual state employee who intends to

effect the alleged deprivation can, of course, foresee it. “The

controlling inquiry is solely whether the State is in a posi-

tion to provide for predeprivation process.” 104 S.Ct. at

3204. The fact that the person who allegedly intentionally

effects the deprivation is a state actor for the purposes of

the “under color of state law” inquiry has no bearing on the

issue of whether his act was “random and unauthorized” for

purposes of the application of the Parratt-Hudson rule.

Petitioner seizes upon the requirement that the depriva-

tion be “unauthorized” in order for the Parratt-Hudson rule

to be applicable and claims that because the alleged state

actor, in this case a judge, was “authorized” by the state to

perform the functions of a judge, such as entering judg-

ments and awarding damages, he was “authorized” to do the

alleged acts in this case, i.e., enter judgment for one side

pursuant to conspiracy instead of the merits of the case.’

7Petitioner also claims that Logan v. Zimmerman Brush Co., 455 U.S.

422 (1982), should apply here instead of Parratt-Hudson because the

alleged deprivation was due to “an established state procedure,” i.e., a

trial. This Court made clear the meaning of “an established state proce-

dure” in Logan. Logan dealt with deprivation of property pursuant to the

operation of an inherently inadequate state procedure: Having mistakenly

(Footnote Continued on Following Page)

16

This interpretation ignores the clear purpose of the

Parratt-Hudson requirement that the act be “random and

unauthorized”: To determine whether the state could possi-

bly know when such deprivations will occur so as to practi-

cably provide a predeprivation remedy. As this Court noted

in Hudson:

The state can no more anticipate and control in

advance the random and unauthorized intentional

conduct of its employees than it can anticipate sim-

ilar negligent conduct. Arguably, intentional acts

are even more difficult to anticipate because one

bent on intentionally depriving a person of his

property might well take affirmative steps to avoid

signalling his intent.

104 S.Ct. at 3203.

The fact that a state “authorized” a judge to deprive a

litigant of property by entering a judgment would not enable

the state to predict an abuse of this power and provide a

predeprivation remedy. The fact that a judge’s act must

have been a “judicial” one in order for him to claim judicial

immunity, Dennis v. Sparks, 449 U.S. 24, 29, (1980), is obvi-

ously irrelevant to this inquiry.

The adequacy of the state remedies is not determined by

the fact that they may give different relief or relief less in

(Footnote Continued From Previous Page)

failed to hear an employment discrimination complaint within the statu-

tory time period, an [Illinois commission lost jurisdiction under the

statute, depriving the complainant of his cause of action without due pro-

cess. This Court distinguished Parratt by stating that in Logan it was the

state system itself, an established state procedure, that destroyed Logan’s

property interest by operation of law. /d. at 435-36. Logan was challeng-

ing the state procedure itself, not the error by state officials that triggered

the deprivation under the procedure. /d. The plaintiff in the present case,

Petitioner, was not challenging the state procedure but the judge's

allegedly illegal acts.

17

amount than that the plaintiff could receive in a § 1983

action. See Hudson, 104 S.Ct. at 3204. Nor is such adequacy

affected by the plaintiff's failure to utilize these remedies or

to make effective use of them. In the present case, Peti-

tioner utilized his appeal rights and lost his case because the

Texas courts viewed his simultaneous pursuit in federal

court of a declaration that the state judgment was void, on

grounds not asserted in the state court, to be an election of

the federal remedy and a trifling with the state courts. Hum-

ble Exploration Co. v. Browning, 677 S.W.2d 111 (Tex. App.

— Dallas 1984), opinion on rehearing in banc, 690 S.W.2d

321 (Tex. App. — Dallas 1985, writ refd n.r.e.), cert. denied,

106 S.Ct. 1376 (1985). Petitioner now claims that he was

denied access to the state’s appellate system and that the

state remedy was not “meaningfully” available to him. (Peti-

tion at 20 n. 31.)

The availability of state process to correct alleged depri-

vations must not be confused with Petitioner’s success in

pursuing them. That a plaintiff by his own negligent or

intentional acts waives or loses his remedy does not create a

§ 1983 cause of action. In Parratt, the prisoner-plaintiff

failed to use state procedures in existence at the time of his

loss. This Court’s dismissal of the case was based on the

availability of the state procedures at the time, not the

plaintiff's success in pursuing them. 451 U.S. at 543.

This case presented to the Fifth Circuit an eminently suit-

able situation for application of the Parratt-Hudson rule.

Because that rule was properly applied in this case, this

Court should not grant the writ.

18

Ill. THE FIFTH CIRCUIT’S DECISION DOES NOT

CONTRADICT THIS COURT’S HOLDING IN

AETNA LIFE INSURANCE CO. V. LAVOIE AND

DOES NOT TRIVIALIZE THE RIGHT TO A FAIR

TRIAL.

Petitioner claims that the Fifth Circuit’s holding

“trivializes” the right to a fair trial, arguing that it contra-

dicts this Court’s recent decision in Aetna Life Insurance Co.

v. Lavoie, 106 S.Ct. 1580 (1986), and earlier cases. On the

contrary, the Fifth Circuit’s holding in no way detracts from

this right but merely follows Parratt and Hudson in analyz-

ing what the state must do to provide all the process neces-

sary to secure this right to its citizens. Unlike this case,

Lavoie was not a § 1983 case but a direct attack on an Ala-

bama Supreme Court decision, which the appellants there

sought to overturn. This Court vacated the judgment and

remanded for further proceedings because the state supreme

court justice who cast the deciding vote was plaintiff in two

other lawsuits involving the issue in Lavoie and his decision

directly enhanced the legal status and the settlement value

of his own case. 106 S.Ct. at 1586. Lavoie in no way pre-

sented any issue relating to the availability and adequacy of

state procedures to safeguard the plaintiffs rights, in the

Parratt-Hudson sense.

Petitioner Holloway’s claims were in the Lavoie posture of

a direct review when he appealed the state court judgment

to the Texas appellate courts and then petitioned this Court

for Writ of Certiorari. In the state appellate courts he

argued that the state court erred in denying his motion to

recuse Judge Walker for bias and conduct of alleged ex parte

meetings, claiming deprivation of procedural due process. If

the denial of recusal had been found erroneous, he would

19

have been entitled to a new trial and a different judge. In

seeking direct review in this Court, Petitioner also raised his

constitutional claim that he was denied a fair trial in state

court. This Court denied the Petition. The context of the

consideration of these claims of unfair trial is the same as

the review accorded in Lavoie, Ward v. Village of Mon-

roeville, 409 U.S. 57 (1972), In re Murchison, 349 U.S. 133

(1955), and Tumey v. Ohio, 273 U.S. 510 (1927), in that all of

these cases raised the issue on direct review. These decisions

shape the right to a fair trial, but they do not determine

whether a cause of action for a procedural due process viola-

tion is stated under 42 U.S.C. § 1983 because the state has

not provided adequate process, the Parratt-Hudson inquiry.®

Petitioner claims much wider sweep for Lavoie than it

claims by its own terms. Under Petitioner’s interpretation, a

state court decision that is reversed on appeal because it is

found that the trial judge should have been recused would

present a § 1983 cause of action. This expansion of § 1983

’One of the questions posed to this Court by Petitioner in his Petition

for Writ of Ceitiorari on direct review of the state court judgment was the

following:

Were Petitioners’ rights under the Due Process Clause of the

Fourteenth Amendment to the federal Constitution 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 corrupted judge following an unfair trial, on the

ground that Petitioners forfeited their appeal by unsuccessfully -

collaterally attacking the validity of that judgment when

Respondents sued to enforce it in federal court?

Petition for Writ of Certiorari, Humble Exploration, Inc. v. Browning,

No. 85-1182.

°Petitioner also appears to claim that the right to an impartial tribunal

is substantive due process. T’his Court has always considered the require-

ment of judicial impartiality to be a matter of procedural due process. In

(Footnote Continued on Following Page)

20

cannot have been intended by this Court to be read into

Lavoie, which after all is not even a § 1983 case. The Fifth

Circuit’s opinion establishes that allegations of unfair trial

against a trial judge must be resolved in direct review.

Lavoie is not inconsistent with this opinion.

IV. THE FIFTH CIRCUIT CORRECTLY FOLLOWED

THE PARRATT AND HUDSON CASES INSTEAD

OF THE HOLDINGS OF OTHER CIRCUITS, AND

ANY DIFFERENCES BETWEEN THE CIRCUIT

OPINIONS DO NOT WARRANT A GRANT OF THE

WRIT OF CERTIORARI IN THIS CASE.

Petitioner cites two cases from other circuits that he

alleges conflict with the Fifth Circuit Court of Appeais’

decision in this case. In fact, the holdings of these cases

clearly conflict with Parratt and Hudson themselves in the

senses in which Petitioner seeks to use them. The fact that

two other circuits have misapplied Supreme Court prece-

dent creates no need for this Court to hear a case in which

the lower court has correctly applied the same precedent.

The Fifth Circuit correctly noted that the points in Pat-

terson v. Coughlin, 761 F.2d 886 (2nd Cir. 1985), cert. denied,

(Footnote Continued From Previous Page)

Marshall v. Jerrico, Inc., 446 U.S. 238, 242-43 (1980), the Court discussed

the need for a neutral tribunal:

The Due Process Clause entitles a person to an impartial and disin-

terested tribunal in both civil and criminal cases. This requirement of

neutrality in adjudicative proceedings safeguards the two central con-

cerns of procedural due process, the prevention of unjustified or mis-

taken deprivations and the promotion of participation and dialogue

by affected individuals in the decision-making process.

(emphasis added). See Federal Trade Commission v. Cement Institute, 333

U.S. 683, 702 (1948) (characterizing Court’s decision in Tumey as finding

a violation of procedural due process).

21

106 S.Ct. 879 (1986), and Bretz v. Kelman, 773 F.2d 1026 (9th

Cir. 1985), on which the petitioner relies, conflict with the

holdings of Parratt and Hudson themselves. Patterson’s hold-

ing that whether conduct of a state official was “random” or

“unauthorized” for Parratt-Hudson purposes must be “viewed

from the position of one who possesses the state-delegated

authority to grant a hearing when circumstances and the

Constitution so require” is clearly contradicted by the United

States Supreme Court’s express rejection of a similar argu-

ment in Hudson, where the respondent contended that

because an agent of the state who intended to deprive a person

of his property can provide predeprivation process, then he

must do so as a matter of due process. This Court in Hudson

stated that this argument reflected a fundamental misunder-

standing of Parratt and that whether an individual employee

himself was able to foresee a deprivation was of no conse-

quence; the controlling inquiry was solely whether “the state

is in a position to provide for predeprivation process.” 104

S.Ct. at 3204. Since in Hudson it was the state agent himself

who both had the opportunity to provide predeprivation pro-

cess and who intended to deprive the respondent of his prop-

erty, the decision in Hudson squarely contradicts the Second

Circuit’s analysis in Patterson.

As for Bretz, none of the essential holdings of that case, on

which Petitioner here relies, are supported by Parratt, Hudson

or Logan v. Zimmerman Brush Co., 455 U.S. 422 (1984). The

Ninth Circuit’s conclusion that a conspiracy cannot be a ran-

dom act uses semantics to dodge Hudson’s clear holding that

an intentional deprivation of property is subject to the rule

enunciated in Parratt. A conspiracy is, of course, intentional.

This Court recently denied certiorari in a Sixth Circuit case

that rejected similar reasoning. In National Communication

22

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

F.2d 370 (6th Cir. 1986), cert. denied, 55 U.S.L.W. 3208, 3235

(Oct. 6, 1986), the plaintiffs argued that allegations of con-

spiratorial acts on the part of public officials, whose duty it

was to see that plaintiffs were not denied due process, were

different from the random and unauthorized acts of miscon-

duct that require a showing of the inadequacy of state reme-

dies under Parratt. 789 F.2d at 372. The Sixth Circuit stated

that the reasoning of Parratt appears to extend to all § 1983

cases claiming a procedural due process injury to a property

interest. /d. at 372-73.

The Ninth Circuit’s conclusion in Bretz that Logan uv.

7 mmerman Brush Co., 455 U.S. 422 (1984), extends to an

illegal conspiracy case is equally mystifying. Logan did not

involve “abuse of an established state procedure,” as the

Bretz court stated, but the operation of an inherently inade-

quate state procedure. The procedure itself deprived the

claimant of his rights if the employment commission failed

to act within the statutory period for any reason. The

claimant challenged the system, not the failure of the Com-

mission to act.

Finally, the Bretz court’s holding that Parratt and Hudson

apply only to minor deprivations is completely unsupported

by these cases. Such a limitation would divide the cases’

focus: The court would have to decide not only “Did the

plaintiff adequately allege a deprivation of his property

without due process of law?” but also “Was the property

interest of which the plaintiff was deprived sufficiently

insignificant?” The Parratt and Hudson opinions nowhere

indicate that the Court followed such an analysis.

Where the decisions of other circuits are clearly unsup-

ported by the United States Supreme Court decisions on

Pa VES tena Ca tere arias a

EE RE OEM

23

which they purport to be based, the claim by Petitioner that

they conflict with the decision of the court below in this case

presents no compelling reason for this Court to hear this

case. The Fifth Circuit correctly applied the law in this case.

The Petition for Writ of Certiorari should be denied.

CONCLUSION

For the reasons set out herein, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

By:

R. BRENT CooPeER,

Counsel of Record

JUDITH H. WINSTON

4000 InterFirst Plaza

901 Main Street

Dalias, Texas 75202

(214) 670-1100

ATTORNEYS FOR RESPONDENT

G. H. KELSO, JR.

24

CERTIFICATE OF SERVICE

I, R. Brent Cooper, counsel of record for Respondent

G. H. Kelsoe, Jr. and a member of the Bar of the Supreme

Court of the United States, hereby certify that I have served

three copies of Respondent Kelsoe’s Response to Petition

for Writ of Certiorari on all parties required to be served, by

depositing three copies of Respondent Kelsoe’s Response to

Petition for Writ of Certiorari in the United States mail, on

this day of November, 1986, with first class postage

prepaid, addressed to the listed counsel of record at the

addresses indicated.

R. BRENT COOPER

Counsel of Record for Respondent

G. H. KELSOE, JR.

Mr. Laurence H. Tribe Mr. Edwin E. Wright III

1525 Massachusetts Avenue One Campbell Centre

Cambridge, Massachusetts Dallas, Texas

02138 Additional Counsel for

Counsel for Petitioner Respondent

R. JACK AYRES, JR.

Mr. Allen R. Weed

4100 Thanksgiving Tower Mr. J. R. Hurt

Dallas, Texas 75201 1025 Elm Street, Suite 720

Counsel for Respondent Dallas, Texas 75202

APP ENTITIES RESPONDENT, PRO SE

Mr. W. James Kronzer

1001 Texas Avenue Mr. Thomas V. Murto

Suite 1030 4310 Beltway

Houston, Texas 77002 Dallas, Texas 75244

Counsel for Respondent Counsel for Respondents

R. JACK AYRES, JR. BROWNING INTERESTS

25

Mr. Earl Luna Mr. Whitley R. Sessions

Ms. Mary Milford 1313 Two Turtle Creek Village

2416 LTV Tower Dallas, Texas 75219

1525 Elm Street

RESPONDENT, PRO SE

Dallas, Texas 75201

Counsel for Respondent

JOHN WRIGHT

Mr. Bruce Claycombe

2424 Allianz Financial Centre

2323 Bryan Street

Lock Box 159

Dallas, Texas 75201

Counsel for Respondent

JUDGE DEE BROWN WALKER