Opposition Brief — Right to Life Advocates, Inc. v. Aaron Women's Clinic

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NO.

In The

Supreme Court of the United

States

October Term, 1988

RIGHT TO LIFE ADVOCATES, INC., ETC., ET AL.,

Petitioners,

VS.

AARON WOMEN'S CLINIC,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE

FOURTEENTH SUPREME JUDICIAL DISTRICT

OF TEXAS

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI

John W. Berkel

JOHN W. BERKEL, P.C.

3420 Two Houston Center

Houston, Texas 77010

(713) 655-0008

Attorney of Record for

Respondent

QUESTIONS PRESENTED

Whether the requisite state action and jurisdiction exists

sufficient to warrant the granting of the Petition for Writ

of Certiorari.

Whether the State of Texas violated Federal due process

requirements under the Fourteenth Amendment when it

decided that Petitioners had no standing to raise an

unmeritorious defense.

Whether Roe v. Wade should be overruled.

LIST OF ALL PARTIES

PETITIONERS:

RIGHT TO LIFE ADVOCATES, INC. "d/b/a

ABORTION ABUSE ADVICE & INFORMATION

SERVICE, ABORTION ABUSE & ADVISORY

INFORMATION HOTLINE, and _ CRISIS

PREGNANCY CENTER OF HOUSTON";

CRAIG K. ANDERSEN;

J. (SIM) BAILEY;

LEE P. HELMKE;

GARY LOTH;

BARBARA A. MARTONE;

JOHN A. MARTONE;

KATHY MATHEMS;

SHEILA MCINTOSH; and

. JOSEPH J. PESL.

. RESPONDENT:

AARON WOMEN'S CLINIC (which is an assumed

name of ORIENT SALES CORPORATION, a

corporation).

TABLE OF CONTENTS

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ARGUMENT AND AUTHORITIES ..................20ee0ees 1

I. THE PETITION FOR WRIT OF

CERTIORARI SHOULD BE DENIED

BECAUSE UNDER THE UNITED STATES

CONSTITUTION, THIS DISPUTE

BETWEEN PRIVATE PARTIES DOES NOT

INVOLVE THE REQUISITE STATE

Il. THE PETITION FOR WRIT OF

CERTIORARI SHOULD BE DENIED OVER

THE CONSTITUTIONAL ISSUES

PRESENTED IN THIS APPEAL FOR THE

REASON THAT SAME WERE NOT

PRESERVED IN THE TRIAL COURT.................. 2

III. THE TEXAS COURTS DID NOT VIOLATE

THE DUE PROCESS CAUSE OF THE

FOURTEENTH AMENDMENT IN THEIR

DECISION SINCE PETITIONERS HAD NO

STANDING TO RAISE THEIR DEFENSE

OF UNCLEAN HANDS AND THEIR

DEFENSE WAS UNMERITORIOUS

(GERMANE TO PETITIONER'S POINTS

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IV. ROE V. WADE SHOULD NOT BE

OVERRULED (GERMANE_- TO

PETITIONER'S POINTS OF ERROR III

AND IV)

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TABLE OF AUTHORITIES

City of Wink v. Griffith Amusement Company, 129

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Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029,

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Humphries-Mexia Company v. Arsneaux, 116 Tex.

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Lloyd Corporation v. Tanner, 407 U.S. 551, 92 S.

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Omohundro v. Matthews, 161 Tex. 367, 341

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Princeton University v. Schmid, 455 U.S. 100, 102

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Riley v. Davidson, 196 S.W.2d 557 (Tex. Civ.

App.-Galveston 1946, writ refd n.r.e.) .0..........cccceeeeeee 4

Roe v, Wade, 410 U.S. 113 (1973) ............0cceeeeee 2, 3,5

State v. Schmid, 84 N.J. 535, 423 A.2d 615 (S. Ct.

N.J. 1980, appeal dismissed sub nom.) ....................64. l

ARGUMENT AND AUTHORITIES

I.

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE, UNDER THE

UNITED STATES CONSTITUTION, THIS

DISPUTE B EN PRIVATE PARTIES DOES

NOT INVOLVE THE REQUISITE STATE ACTION.

It is well settled that the exercise of an individual's right of

free speech and assembly on a privately owned shopping

center, irrespective of its size or the character of the property,

is not a protected activity under the First Amendment of the

United States Constitution. Lloyd Corporation v. Tanner, 407

U.S. 551, 92 S. Ct. 2219, 33 L.Ed.2d 131 (1972); Hudgens

y. NLRB, 424 U.S. 507, 96 S. Ct. 1029, 47 L.Ed.2d 196

infringement of constitutional rights and it does not protect

against conduct of purely private actors. The defendants make

no pretense of satisfying the “state action” requirement

necessary to invoke the protection of the Federal Constitution.

See, e.g. State v. Schmid, 84 N.J. 535, 423 A.2d 615 (S. Ct.

N.J. 1980, appeal dismissed sub nom.), Princeton University

yv. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L.Ed.2d 855

(1982).

Petitioner's attempt to cure this jurisdictional defect by

arguing that state action exists (the decision of the Texas Court

of Appeals and Texas Supreme Court) and that such supports

a violation of the United States Constitutional Amendment

Fourteen is not well founded. The Texas Court of Appeals

denied Petitioner's argument of unclean hands for the reason

that 1) Petitioners did not show injury to them so as to be

2

entitled to raise the defense (all of the cases cited by Petitioners

in support of their injury argument in fact involved parties that

themselves had legal or proprietary interests in the subject

matter of the dispute) and 2) Respondents were not guilty of

unclean hands inasmuch as Roe v. Wade, 410 U.S. 113 |

(1973) established the legality of pregnancy terminations

within the limitations set forth in Roe vy. Wade. Petitioner's

second point of error complaining of the decision of the Texas

Supreme Court upholding the Court of Appeals is founded on

the same argument. Such an argument presents no issue to

this Court under the Federal Constitution.

Analogously, Petitioner's attempt to present to this Court

another constitutional challenge to Roe v, Wade is not well

founded. Such must be raised in the context of state action,

referenced previously, and no party to this lawsuit, nor the

actions of any party, constitute such state action as is required

before a Petition for Writ of Certiorari to this Court would be

well founded.

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED OVER THE

CONSTITUTIONAL ISSUES PRESENTED IN

THIS APPEAL FOR THE REASON THAT SAME

WERE NOT PRESERVED IN THE TRIAL COURT.

Petitioner's arguments made under the Fourteenth

Amendment to the Texas Constitution and the numerous

challenges to Roe v. Wade were not preserved in the Trial

Court. (Tr 27, 41). According to Petitioner's Petition for Writ

of Certiorari, Roe v. Wade is requested to be reconsidered on

the basis of what is allegedly substantial social and policy

grounds. This was not adequately presented to the Trial Court

as the Statement of Facts and the Transcript constituting the

record transmitted to this Court will readily reveal.

Petitioner's pleadings in the Trial Court did not plead, and

Petitioner's evidence proffered in the Trial Court did not

support, the arugments and challenges that Petitioners now

seek to make in this Court to Roe v, Wade. Rather,

Respondent's suit was challenged by defenses allegedly raised

under the Fifth, Ninth and Tenth Amendement to the Federal

Constitution. Though Petitioners have proposed to raise

certain other constitutional issues in the Trial Court, such are

issues not carried forward to the Petition for Writ of Certiorari.

Having failed to raise such issues in their petition in the Trial

Court (when Respondent would have had the opportunity to

controvert same with evidence relating to such issues, which

Respondent did not have the opportunity to do), Petitioners are

precluded from raising those issues in this Court.

THE TEXAS COURTS DID NOT VIOLATE THE

DUE PROCESS CAUSE OF THE FOURTEENTH

AMENDMENT IN THEIR DECISION SINCE

PETITIONERS HAD NO STANDING TO RAISE

THEIR DEFENSE OF UNCLEAN HANDS AND

THEIR DEFENSE WAS UNMERITORIOUS

(GERMANE TO PETITIONER'S POINTS OF

ERROR I AND ID)

Petitioner's argument must fail in the first analysis for the

reason that Respondent's are not guilty of unclean hands. Roe

y. Wade, 410 U.S. 113 (1973), within the standards set forth

therein, established the legality of pregnacy terminations. This

stands as the law of the land and any potentially contrary law

(referenced in Petitioner's Points of Error III and ['V) could not

stand in the face of this Court's decision. Operating a legal

business in a lawful manner cannot constitute unclean hands as

a matter of law.

Additionally, as held by the Texas Court of Appeals, a

party such as Petitioner asserting the equitable defense of

unclean hands to injunctive relief (all arising under Texas State

Law) must, as a matter of Texas State Law, show that such

party, and not some third-party, was injured by the conduct of

the party seeking the injunction (Respondents). Omohundro

v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 410 (1960).

The Court of Appeals examined all cases cited by Petitioners

and found that such cases did not deviate from the requirement

of injury to the complaining party. Each of the cases cited by

Petitioners in their Petition for a Writ of oe to this

Court, are distinguishable. In Wi i

Amusement Company, 129 Tex. 40, 100 S. W. 2d 695 (1936)

the Supreme Court ruled that the amusement company that

sued the city to enjoin the city from enforcing the city's

existing anti-lottery ordinance was not entitled to the injunction

because its business violated the public policy and law of the

State and thus the amusement company did not come into

Court with clean hands. In Humphries-Mexia Company v.

Arsneaux, 116 Tex. 603, 297 S.W. 225 (1927), the oil

company and water company had colorable rights to the

property in question and would have the requisite standing. In

Riley v. Davidson, 196 S.W. 2d 557, 559-560 (Tex. Civ.

App.-Galveston 1946, writ ref'd n.r.e.) the Court of Appeals

held that one who could suffer a health injury could raise the

defense of unclean hands against the party (the owner of the

water supply line) committing acts in violation of the health

law. In all of these cases, the parties before the Court had real

interests in the controversy and were acting to protect their

rights. Distinguished from this line of cases is the current

situation where Petitioners are not suffering the harm, if any,

by pregnancy termination. As against a challenge to

Petitioner's inability to fullfill a Texas legal prerequisite to

asserting a Texas defense to a Texas equitable remedy,

Petitioners have not shown the requisite standing as would be

required to sustain Petitioner's position.

a Se NNER AN ah

IV.

ROE V. WADE SHOULD NOT BE OVERRULED

(GERMANE TO PETITIONER'S POINTS OF

ERROR III AND IV)

It should be inititally noted that Petitioner's strain to confer

jurisdiction on this Court to overrule Roe v. Wade within the

context of Petitioner's unclean hands defense (referenced in I,

surpa) Given that such arguments fail, the underlying

rationale for presenting another challenge to Roe v. Wade in

this Court must also fail. In the absence of Petitioner's

standing, as described above, Petitioners do not present a valid

jurisdictional or procedural challenge to Roe v. Wade in their

Petition for a Writ of Certiorari.

Additionally, Roe v. Wade has been examined and re-

examined on numerous occasions by this Court. The same

reasons as caused this Court to decide Roe v. Wade initially

stand as arguments as to why Roe v. Wade should not be

overruled. Roe v. Wade having withstood numerous

constitutional challenges since its decision, and Petitioner's

arguments primarily re-presenting many of these arguments,

this Petition for a Writ of Certiorari presents no new

constitutional arguments that should be reviewed.

As to the additional reasons referenced in Petitioner's

Petition for a Writ of Certiorari, such are. not supported by

evidence in this record, were not raised in the. Trial Court and

in fact (when considered and reviewed), do not provide.

sufficient grounds for overruling Roe v._ Wade (as against the

numerous considerations weighing in favor of the initial Roe

v. Wade decision and its support since the decision).

6

CONCLUSION

For the reasons and authorities stated, it is submitted

Petition for a Writ of Certiorari should be

; 3420 Two Houston Center

“4 Houston, Texas 77010

(713) 655-0008

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing has been mailed certified, return receipt requested to

Mr. Thomas C. Sanders, 5874 San Felipe, #1250, Houston,

d Mr. Richard W ude, P. 0. Box 674,

77375 on this day of July, 1988.