Reply Brief — Gardner v. Evans

— SS —————

| Supreme Court, USs _

FILED

LY NOV 29 1966

No. 86-417 JOSEPH F. SPANIOL, JR

aoa

In the Supreme Court of the United States

Octoser Term, 1986

fy

——-

NorMan GarpNER, Ramona WALHOF, JOHN CHEADLE,

Petitioners,

vs.

Joun V. Evans, Marry Pererson, Lawrence W. Barnes,

Jack Ucaxi, Howarp Barton,

Respondents.

hy

Vv

REPLY TO RESPONDENTS’ BRIEF IN OPPOSITION

TO CERTIORARI TO THE SUPREME COURT

FOR THE STATE OF IDAHO

fy.

min ta

Freperic S. Le Cierca

1505 West CUMBERLAND AVENUE

KNoxvILLE, TENNESSEE 37996-1800

(615) 974-1477; 525-4851

Counsel of Record for Petitioners

KennetH L. Maura

Matuea and ScrivNER

537 W. Bannock, Sutre 215

Borss, [paHo

Local Counsel for Petitioners

November 25, 1986

COCKLFE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF CONTENTS

TABLA OF AUTHOR IIS oo i

ARGUMENT

I. THE PETITION FOR CERTIORARI WAS

ET RR inc ccc cag easee tesa as oiepserade 1

i

TABLE OF AUTHORITIES

CASES Page

Unirep States Supreme Court

Davis v. Wechsler, 263 U.S. 22 (1923) nnccccceccccessseecnceen 3

Henry v. Mississippi, 879 U.S. 448 (1965) 2... 6

N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958) 2. 1

Norfolk & 8S. Turnpike Co. v. Virginia, 225 U.S.

BOR TOPOS hk RE Ee re ‘aghast eaten 3

Puget Sound Power & Light Co. v. King

Comly, ThA US. Se A ee 5

IpAHo

Avondale Irrigation Dist. v. North Idaho

Properties, 96 Idaho 1, 523 P.2d 818 (1974) _W.. 2

Berry v. District Court, 91 Idaho 600, 428 P.2d

519 (1957) . sacnishsanisciaindSeieclacigadlaacee mete ienagaeane ) ae

Darrar v. Joseph. 91 Idaho 910, 419 P.2d 211

CROUGS inne 2

Farber v. State, 106 Idaho 677, 682 P.2d 630 (1984). 1

Jenson v. Doherty, 101 Tdaho 910, 623 P.2d 1287

C6 Ep eget sessed glk Ss Ne ene Some of

Hutchins v. State, 100 Idaho, 661, 603 P.2d 995

ES; ) aan a Taner ala Pines A er 2

Kifer v. School District, 100 Tdaho 411, 599 P.2d

SG tf | en ices wot ye, LEN

Martin Estate v. Woods. 94 Idaho 870, 499 P.2d

Minidoka County v. Krieger, 88 Idaho 395, 399

P28 SOR (10 22 ca eee :

Ross v.-Ross, 103 Idaho 406, 648 P.2d 1119 (1982) _. l

to

bo

ili

TABLE OF AUTHORITIES—Continued

Page

State v. Adams, 99 Idaho 75, 577 P.2d 1123

is ed SSUES SATE ee ee ee 2

State v. Blevins, 108 Idaho 239, 692 P.2d 1174

aay. SEE ORES ERE aa Oe OP oe 2

State v. Bylama, 103 Tdaho 473, 648 P.2d 1119

aha at Se STIRS Oe GP ca eer ea 2

State v. Hoak, 107 Idaho 742, 692 P.2d 1174

Neen oo a akemconmniniacb 2

State v. One 1955 Willys Jeep, 100 Tdaho 150,

OY UU on 2

State v. Scroggins, 110 Idaho 380, 716 P.2d

SIE eon pee AS 2

Steiner v. Amalgamated Sugar Co., 106 Idaho

111, 675 P.2d 826 (1984) ...... ES ane Sto eee 2

OrnHer STATES

Borrow v. El Dorado Lodge, Inc., 75 Az. 218

RM cc 6

Garrett v. Garrett, 30 Colo. App. 167, 505 P.2d

EEE Sete ear eve Sn EAN 6

O. P. Corp. v. North Palm Beach, 302 So. 2d

130 (Fla. 1974) ....... Ac Ee Eee he 6

STATUTES

FEDERAL

us cna sancusbsannbcenhomtets 3, 4, 5, 6

STATE

Tdaho R. App. P. 38(D) (1). -cescmossnsnnnnnnnnnnsninnn 14

Ag SE.) ee 1,4

iv

TABLE OF AUTHORITIES—Continued

Page

TREATISES

Moore’s Federal Practice § 58.01 at 58-4 (1986) ....... 4

Frank, ‘‘Requium for the Final Judgment

Bule’’, 45 Texas U. Bev. 292 (1966) 2... 3

U.S. Supreme Court

RR, Re eS er RC SPER ON: Mes oe 7

Rule 20.4 . 3, 6

Feperau Ruwes or Cirvi. ProceDurE

Rule 58(b) .............. 4

I. THE PETITION FOR CERTIORARI WAS

TIMELY FILED

Respondents argue that certiorari should not be

granted because the petition was not timely filed. Respon-

dents’ argument is without merit for three reasons.

First, the Idaho Rules of Appellate Procedure provide

in cases such as the one sub judice that ‘‘[o]pinions shall be-

come final 21 days after... [t]he announcement of the

opinion.’?’ IDAHO R. APP. P. 38(b)(1) at A. 55. The re-

mittitur issues ‘‘[w]hen the opinion filed has beeome final

in accordance with this rule.’ IDAHO R. APP. P. 38(c)

at A. 55. Rule 38 of the Idaho Rules of Appellate Proced-

ure is in accord with the representation made to Mr. Le

Clereq in June 1986 by the Office of the Clerk of the

Idaho Supreme Court. Petition for Certiorari at 2. More-

over, the past unambiguous holdings of the Idaho Snu-

preme Court and statements by its members make clear

that the entry of the remittitur by the Idaho Supreme

Court constitutes its final judgment. See, for example,

Farber v. State, 106 Idaho 677 at 680 n.1, 682 P.2d 630

(1984) (Justice Bistline, coneurring, stated that it had

been his ‘‘impression over the last eight years’’ as a

justice that an Idaho Supreme Court decision was not

‘‘a final judgment ... [until] the remittitur had issued.’’!

As this Court observed in N.A.A.C.P. v. Alabama, 357

1Accord, Ross v. Ross, 103 Idaho 406 at 417, 648 P.2d 1119

(1982) (Bistline, J., concurring and dissenting on ether grounds)

(“until such an appeal is disposed of and upon remittitur, the

case does indeed fall into limbo’); id. at 103 Idaho 419 n.3

(Bakes, C.J., dissenting on other grounds); Jensen v. Doherty,

101 Idaho 910 at 911, 623 P.2d 1287 (1981) (Bistline, J., dissent-

(Continued on following page)

I

9

U.S. 449, 457-58 (1958): ‘‘Novelty in procedural require-

ments cannot be permitted to thwart review in this Court

(Continued from previous page)

ing on other grounds) (“If not appealed from the judgment

would have gained res judicata effect which it also will have

on the remittitur.’’); Hutchins v. State, 100 Idaho 661 at 665, 603

P.2d 995 (1979) (“When the cause was back in trial court after

remittitur. . . .”); State v. Scroggins, 110 Idaho 380, 716 P.2d

1152 (1985) (the power of the Supreme Court to recall its re-

mittitur to further consider its earlier judgment); State v. Blevins,

108 Idaho 239 at 244, 692 P.2d 1174 (district judge directed to

modify its judgment upon receiving remittitur); State v. Hoak,

107 Idaho 742 at 751, 692 P.2d 1174 (1984) (Judge Bistline con-

curring and dissenting on other grounds); (after the remittitur

went down”); Steiner v. Amalgamated Sugar Co., 106 Idaho 111

at 115, 675 P.2d 826 (1984) (“Upon remittitur, we direct the

trial court to modify its judgment. .. .’’}; State v. Bylama, 103

Idaho 473 at 475, 648 P.2d 1119 (This rule allows the sentenc-

ing judge to reduce a sentence within 120 days after receipt of

the remittitur affirming the judgment’); Kifer v. School Dis-

trict, 100 Idaho 411 at 412, 599 P.2d 302 (1979) (Shepard, J.,

dissenting on other grounds) (“l-am at a loss to understand the

posture which this case will assume on the issuance of this

Court’s remittitur’’); State v. One 1955 Willy Jeep, 100 Idaho

150 at 157, 595 P.2d 299 (1979) (Bistline, J., dissenting on other

grounds), (‘Defendants now prosecute this appeal from the

judgment of the superior court entered pursuant to the remit-

titur of the District Court of Appeal’ ’’); State v. Adams, 99

Idaho 75 at 86, 577 P.2d 1123 (1978) (“. . . upon the remittitur

going down .. . the 120 day retention of jurisdiction becom[es]

an effective part of the sentence”); Avondale Irrigation Dist. v.

North Idaho Properties, 96 Idaho 1 at 5, 523 P.2d 818 (1974)

(“If there is no motion to reopen within thirty days after the

remittitur issues herein, the judgment of the district court shall

be in all respects final’); Martin Estate v. Woods, 94 Idaho 870

at 871, 499 P.2d 569 (1972) (“On appeal to this court, the dis-

trict court dismissal was reversed and the cause remanded for

trial... .”” Following trial on the merits, after remittitur . . .’’);

Berry v. District Court, 91 Idaho 600 at 603, 428 P.2d 519

(1967) (Smith, J., joined by Taylor, J., dissenting on other

grounds) (“On remittitur, the district court entered findings of

facts’); Darrar v. Joseph, 91 Idaho 210 at 214, 419 P.2d 211

(1966) (‘Any further orders . . . will be made by the district

court, after remittitur herein’); Minidoka County v. Krieger,

88 Idaho 395 at 418, 399 P.2d 962 (1965) (“reasonable attorney

fees on the appeals to be incoroprated upon remittitur’).

3

applied for by those who, in justified reliance upon prior

decisions, seek vindication in state courts of their federal

constitutional rights.’’ Justice Holmes once said: ‘‘ What-

ever springes the State may set for those who are en-

deavoring to assert rights the State confers, the assertion

of federal rights, when plainly and reasonably made, is

not to be defeated under the name of local practice.’’

Davis v. Wechsler, 263 U.S. 22, 24 (1923).

Whatever inroads may have been made on the final

judgment rule of 28 U.S.C. § 1257 to permit reviewability

of federal questions,” Rule 20.4 of the Rules of the Su-

preme Court, if fairly construed in accordance with the

finality rule of 28 U.S.C. § 1257, must not deny review of

federal questions on entry by the state court of its final

judgment — in this case the entry of the remittitur on

June 13, 1986.

Second, the efficiency and federalism interests which

underlie the final judgment rule of 28 U.S.C. § 1257 are

not compromised. by permitting review in this case. The

‘‘want of harmony”’’ of Supreme Court decisions with re-

spect to the final judgment rule results from the ‘‘varying

forms in which state courts have expressed their action.’’

Norfolk & S. Turnpike Co. v. Virginia, 225 U.S. 264, 268

(1912). The ‘‘want of harmony’’ among decisions of this

* A

Court due to the ‘‘varying forms”’’ of state expression

reflects the deference this Court owes to the principles of

federalism. It would be especially cruel to reject for want

of timeliness a _ petition involving substantial federal

claims (rejected out of hand by the state courts) becatse

2See, e.g., Frank, “Requim for The Final Judgment Rule,” 45

Texas L. Rev. 292 (1966).

4

out of state counsel counted the ninety days within which

the petition must be filed in reliance on 28 U.S.C. § 1257;

Idaho Appellate Rule 38(b) and representations by the

Office of the Clerk of the Idaho Supreme Court that, un-

der Idaho practice, the entry of the remittitur on June 13,

1986 constituted the final judgment.

Third, for the Court to reject this petition for lack

of timeliness would be inconsistent with the literal lan-

guage of 28 U.S.C. § 1257 and with the strong federal

policy favoring federal review of substantial federal ques-

tions litigated in the:state courts.

Rule 58(b) of the Federal Rules of Civil Procedure

was modified several years ago to require that ‘‘[e]very

judgment shall be set forth in a separate document.’’ This

was ‘‘done mainly to clarify and make certain what should

be treated as a judgment and. .. in order to eliminate con-

fusion.’”” 6A MOORE’S FEDERAL PRACTICE § 58.01

at 58-4 (1986) Idaho appellate courts set forth their final

judgments in a separate document styled a _ remittitur.

IDAHO APP. R. 38(c). The same important federal

polices which led to the amendment of Federal Rule 38

mitigate strongly in favor of the Ceurt’s acceptance of the

petition as timely filed.

Counsel for respondents sought and obtained exten-

sions of time in this proceeding from both the Idaho Su-

preme Court and the United States Supreme Court. In

neither instance, did petitioners object to the extension.’

3This is not the first attempt of respondents to prevent peti-

tioners from being heard on the merits of important issues in the

case. Respondents consistently characterized petitioners’ fed-

(Continued on following page)

s

Many thousands of dollars have been spent on discov-

ery, pre-trial motions and appeal of this case. Both the

Idaho district court and the Idaho Supreme Court made

short shrift of petitioners’ federal claims. Petitioners in

good faith and in accord with 28 U.S.C. § 1257 and Idaho

practice, relied on and counted the ninety days within

which their time for filing the petition commenced to run

from June 13, 1986 when the remittitur was filed. The is-

sues presented in this case are too important to the individ-

ual petitioners and to the blind people of Idaho and the

United States to pretermit petitioners’ only mode of fed-

eral review of their substantial federal claims. Respon-

dents’ timeliness objection should be rejected and the peti-

tion for certiorari granted. The remittitur in this case is

the same type of judgment the Court found to be within

the scope of its review in Puget Sound Power & Light Co.

v. King County, 264 U.S, 22, 24-25 (1924).

The disposition of the timeliness defense urged here

aceords with the important fact that most lawyers seek re

(Continued from previous page)

eral claims as “frivolous” in the state courts and sought an award

of attorney fees on that basis. Respondents contended that

petitioners “did not timely file objections to costs and attor-

ney’s fees and therefore waived all rights to object.” Memor-

andum Opinion and Order of District Court filed May 31, 1985

at R. 350-51. The District Court held that respondents’ petition

for fees was “prematurely filed.” /d. at 351. Counsel for re-

spondents also attempted to prevent petitioners from being

heard in the early stages of this litigation by serving notices

only on local counsel without service on out-of-state counsel

responsible for the prosecution of the litigation. See affidavit

of Marc Maurer of September 19, 1984 par. 8 at R. 312-13. Sub-

sequently, counsel for respondents scheduled a hearing for a

protective order against further discovery without notice to

out-of-state counsel. Id. at par. 9.

view of cases in the United States Supreme Court only sev-

eral times in their professional lives. A construction by this

Court of its rules which is widely at variance with the lan-

guage of § 1257 or which attributes a radically different

meaning to finality than that of the state court from which

review is sought compromises s.andards of reasonable pre-

dictability under § 1257 and constitutes a Draconian hazard

for the practicing lawyers whom tiis Court serves. Cf.

Henry v. Mississippi, 879 U.S. 440 (1965).

Kor the Court to decline certiorari for want of timeli-

nesss would intrude heavily on the federalism interests of

§ 1257 and the strong federal policy against piecemeal re-

view. The construction of Rule 20.4 sougiit hy respondents

would require counsel in states with final judgment rules

similar to that of Idaho* to file protective petitions to ad-

verse opinions in advance of final judgment to avoid the

harsh prospect that failure to do so may preclude review

entirely.

This Court should reject the lack of timeliness argu-

ment of respondents or, alternatively, grant certiorari and

4See, e.g., Garrett v. Garrett, 30 Colo. App. 167, 505 P.2d 39

at 40 (1971) (Appellate rule that mandate of Court of Appeals

shall issue 15 days after entry of judgment is intended to estab-

lish finality); O.P. Corp. v. North Palm Beach, 302 So.2d 130

(Fla. 1974) (issuance of mandate constitutes final judgment of

appellate court); Borrow v. El Dorado Lodge Inc., 75 Az. 218,

254 P.2d 1027 at 1028 (1953) (“The original opinion of this court

did nothing more than affirm the orders of the trial court... .

{T]he time for performance . . . commences to run from the

time the appellate court’s judgment or order becomes effec-

tive, viz. under our practice, the date of the issuance of the

mandate.”) A preliminary review of the cases suggest that this

problem could occur in several states.

| = einulealigaleaall

~

reserve the jurisdictional issue for briefing and argument

on plenary consideration of this case.>

Respectfully Submitted,

Frederic S. Le Clereq

Attorney for Petitioners

SCounsel did not lodge a copy of the portions of the

record on which petitioners relied, Petition for Certiorari 2 n.1,

nor request certification of the record by the Clerk, because of

the policy against such requests prior to the grant of certiorari.

U.S. Supreme Court Rule 19.1.