Petition for Writ of Certiorari — Howell v. Supreme Court of Texas

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IN THE

Supreme Court of the United States

October Term, 1989

CHARLES BEN HOWELL, ETAL.

Petitioners,

THE SUPREME COURT OF TEXAS, ETAL.

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MELVYN CARSON BRUDER

Counsel of Record

for Petitioners

Three Forest Plaza

12221 Merit Drive

Suite 150

Dallas, Texas 75251

(214) 991-6474

TREVATHAN PRESS s LITTLE ROCK

QUESTIONS PRESENTED

One

Is it really true that the Feldman window is an illusory

remedy?

(a) Was the Fifth Circuit correct in brushing aside

without discussion this petitioner’s primary and most urgently

argued proposition: That the Supreme Court’s subsequent

decision in Pennzoil v Texaco, 481 US 1 (87) (Texaco IV),

imposed upon this petitioner, as a prerequisite to a Feldman

window action in the federal district court, the obligation to

first exhaust his state remedies by urging his federal grounds of

attack upon the state rule in question, while he was still before

the state court?

(b) Has the Fifth Circuit below not necessarily held that

a litigant who fulfills the exhaustion requirement of Texaco IV

by arguing his federal claim in state court thereby forfeits (on

the theory that in doing so, he has “inextricably intertwined”

his federal claim with the state judgment) his right to federal

district court review of a federal claim that would otherwise

be accessible through the Feldman window?

litigant in fulfilling the exhaustion requirement thereby bars

himself from the right of Feldman window review? If such be

true, then, is not the Feldman window, in practical

application, a non-existent remedy?

Two

Was the Fifth Circuit below correct in holding that the

Rooker-Feldman rule applies, not only to allegedly erroneous

judgments, but also to those that are wholly void for want of

jurisdiction?

(a) Did Rooker v Fidelity, 263 US 413 (23), not expressly

disclaim any intent to pass upon the right to federal review of

allegedly void state court judgments? Does Dist. Col. Ct. v

Feldman, 460 US 462 (83), contain any intimation that the

Court was addressing the right to attack a void state judgment

in federal district court?

(b) Is it not a well established rule that a void judgment

may be collaterally attacked in any forum where it may be

called into question? If so, is there any constitutional

provision, any rule or statute, or any principle of comity that

prevents a federal district court from inquiring whether a state

judgment brought before it is void for want of jurisdiction on

the part of the rendering court?

Three

Did the Fifth Circuit below err in affirming sanctions upon a

holding that the district court, in levying sanctions committed

no clear abuse of discretion?

(a) Is the abuse of discretion standard the proper one

for the review of Rule 11 sanctions?

(b) Are the sanctions not in derogation of the First

Amendment right of petition? In such case, does it not follow

that no sanctions may be imposed without a showing of

flagrant abuse of that constitutionally protected right? Does

this record intimate any such showing?

abuse of discretion standard singularly inappropriate in view

of the fact that the key ruling of the district court was upon a

pure question of law; i.e. that the federal court “‘was clearly

without jurisdiction?”

ill

PARTIES

Charles Ben Howell is the principal petitioner and was

the plaintiff and the appellant in the respective courts below.

Ken E. Mackey was the attorney for petitioner Howell in the

US District Court and is co-petitioner here with respect to the

sanctions imposed, as he was co-appellant in the Fifth Circuit.

Respondents, appellees and defendants below, are the

Supreme Court of Texas and its justices holding office at the

filing of the complaint* (and their successors in office), also,

the Attorney General of Texas, the Honorable Jim Mattox,

and the District Clerk of Dallas County, Texas, the Honorable

Bill Long. Petitioner considers that his action against Mr.

Long is moot in that the fund in question was disbursed after

the US District Court denied a preliminary injunction against

disbursement and it was, by Mr. Long, then distributed.

Other respondents hereto, appellees and defendants

below, are the state court defendants, appeilees and

respondents, Homecraft Land Development, Inc., U.S. Home

Corporation, and Stewart Title Company.

This cause of action was commenced in the US District

Court for the Western District of Texas at Austin, cause no. A-

88-CA-644. The trial court denied a preliminary injunction,

assessed sanctions for filing a lawsuit that was “‘without

jurisdiction,” (PA 14, 24) and dismissed the complaint. Appeal

*The Honorable Thomas R. Phillips, the Honorable Franklin Spears, the Honorable C. L.

Ray, the Honorable James P. Wallace, the Honorable Ted Z. Robertson, the Honorable

William Kilgarlin, the Honorable Raul Gonzalez, the Honorable Oscar Mauzy and the

Honorable Barbara Culver.

was taken to the United States Court of Appeals for the Fifth

Circuit which affirmed, no. 89-1032.

The case name in the courts below was the same as the

case name being used in this Court.

The underlying state court litigation, Charles Ben Howell

v Homecraft Land Development, et al., was initiated in the

298th District Court of Dallas County, Texas before the

Honorable Sidney A. Fitzwater, cause no. 83-4680. Final

judgment and order overruling motion for new trial were

signed by his successor, the Honorable Will Pryor. An appeal

was prosecuted to the Texas Court of Appeals for the Fifth

District of Texas at Dallas, cause no. 06-86-1164-CV.

An application for writ of error was thereafter filed with

the Supreme Court of Texas, no C-7,113, which overruled the

motions for disqualification that are the principal subject of

this federal litigation and then denied the writ application and

thereafter deried rehearing. The United States Supreme

Court denied certiorari to the Texas Supreme Court, cause

no. 88-923. The same case name was employed in all courts.

INDEX

Questions Presented

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ME 6k ks 4 %s oe ae eR eee eee il

PUES. 3 ob BA 66RD ill

PETITION FOR WRIT OF CERTIORARI

tt PERT TE ETT OTE ee ee 1

I 6 okt 6 4 0 0 6.6.0 0 4 Oo ee ee eee 1

el eT eee 1-3

a a ere 3-5

Reasons for Granting the Writ................0.05. 5-30

SUMEROEY GE ACRURODE 60 os 6 ons cee sccncievesccuseus 5-6

Question 1: The Feldman Window Was Available . . . . 7-23

Civil Rights—1871 Through Younger............ 7

Rooker and Jurisdictional Preclusion........... 8

England—A Retreat from Jurisdictional Preclusion ... 1i

Feldman—Jurisdictional Preclusion Re-Confirmed .. . 12

Texaco II--The Feldman Window Applied ........ 13

Texaco in the Supreme Court—The Feldman Window

COMEMNOS 0 8S tt ee ee Oe wee 8 15

In Texaco, The Supreme Court Necessarily Held that

Raising the Federal Claim in State Court Does Not

Create a Jurisdictional Preclusion............ 16

Feldman Itself Indicates that Raising the Federal Claim

in State Court Does Not Bar the Feldman Window . . 16

Younger ‘Abstention Demands Exhaustion....... 18

Recap: Younger Abstention Requires Exhaustion . . . 23

Question 2: The Texas Supreme Court

OnGer Was VON oo ce we we ce 23-27

Federal Jurisdiction of Void Orders—Overview ... . 24

An Impartial Tribunal Is Fundamental.............. 24

The Judgment Is Void Where Due Process

Fundamentals Have Been Denied........... 25

Texas Has Long Held the Action of a Disqualified Court

ARDOCIUEOTY VOIE on ccc eee es arenes 26

Texas Has Attempted to Classify Disqualifications . . . 26

Question 3: Sanctions Were Not Proper........... 27-29

eee ee ee ee ee ee ee ee 30

PETITIONER’S APPENDIX INDEX

US Court of Appeals, 5th Circuit;

Charles Ben Howell, et al., v The Supreme Court

of Texas, et al., No. 89-1032, October 11, 1989

Copentoms GES Cae FUG. sv cnnccasccncassesaces PA 1-13

US District Court, Western District of Texas, Austin Division;

Charles Ben Howell v The Supreme Court of Texas, et al.;

Civil No. 88-CA-644, November 18, 1988

Order and Opinion; Unpublished.......... PA 14-PA 33

Supreme Court of Texas;

Charles Ben Howell v Homecraft Land

Development, Inc., et al.; No. C-7113, April 27, 1988

Notation re: Decision of the Texas Supreme

CAME wc es ee ee eee ee ee ee ee PA 33

US Court of Appeals, Sth Circuit;

Charles Ben Howell v Supreme Court of Texas, et al.;

No. 89-1032

Judgment, October 11, 1989 ..............4.. PA 33-34

On Petition for Rehearing, November 8, 1989... PA 34

Vii

US District Court, Western District of Texas, Austin Division

Charles Ben Howell v Supreme Court of Texas, et al.;

Civil No. 88-CA-644, November 18, 1988

ee ee ee eee ee ee ee PA 35

Supreme Court of Texas, Charles Ben Howell v Homecraft

Land Development, Inc. et al.; No. 3-7113

C2UGOr, FORCUETY ©, IGGS own ewe cccscccsasess PA 37

CAs CU OE ROE WRK RA Ae KAS Oe we eee CORED PA 38

CONG, By SUE knoe cavewncenveees PA 38-PA 39

Se I so ick cksecseeaneaounions PA 40

Statements by Justices of Supreme Court,

PO By TOD 6 a nis bn heen ieee 6aes PA 40-PA 43

Extract —(Petitioner’s) Motion for Recusal or

ERSTE TT eee PA 44-PA 49

Extract—(Petitioner’s) Affidavit in Support of

Motion for Recusal or Disqualification .. PA 49-PA 74

Extract—(Petitioner’s) Verified Exhibits in Support of

Motion for Recusal or Disqualification ...... PA 75

News Release, March 12, 1986 ...... PA 76-PA 77

News Article, The Texas Lawyer,

pe Ea eam pe PA 78-PA 80

Vill

News Article, Dallas Times Herald,

oe ae ae PA 80-PA 82

News Article, Dallas Times Herald,

Fe PTTL ERECT EEE PA 83-PA 86

News Release, December 8, 1987.......... PA 86-PA 88

Proceeding in Related Case, Texas Supreme Court, Houston

Lighting v Reynolds, No. C5499, May 3, 1988

Chief Justice’s Certificate of Disqualification .... PA 89

Governor’s Appointment of Special

I Sr arg Le, gh ge bgt ete PA 90

News Article, Dallas Times Herald,

ee ag Ae ate ek Ae ew & 4 PA 91-PA 92

CITATIONS

Statutes and Rules:

United States Constitution, Amdt. 1........... 27, 29

United States Constitution Amdt. 14........ 7s oe oe oF

SE EE og 410 Oo a we & 84 Kk 6 0s ew 1

ee ey ky ea ee ee ee ew 10

8 og a a a ee ae passim

Gear SUM a ge 6 4 eae il

Bae Monee, © O08. 141.005; 141.053 .... 0. cess n.22

ET Ng) AT ae: so be ae 2

as cs ore bb ke e-ak e 8 Oe y i ae ee ee

Cases:

Aetna v Lavoie, 475 US 813 (86) .......... 25-27

ALT v SBA, 801 F2d 1451 (5-TX 81).......... 26

Atchison v Wells, 265 US 101 (24) .......... n.20

Atlantic Coast v Engrs., 398 US 281 (70)...... 6, n.17

Bass v Hoagland, 172 F2d 205 (5-TX 49)...... n.20, 25, n. zs

Brotherhood of RR Trainmen v VA, 377 US 1 (64) .

Buckholts ISD v Glaser, 632 SW2d 142

[ee WE 4 606s o ees we ee we 8 26, 27

Commonwealth v Continental,

393 US 145 (68)... . i bow a

Connally v GA, 429 US 245 (77) a a ee 25

Cromwell v Sac, 95 US 351 (1876) ...... 8, n.13

Dist. Col. Ct. v Feldman, 460 US 462 (83)... passim

Dombrowski v Pfister, 389 US 479 (65) ..... 8

Ellis v Dyson, 415 US 452 (74) ........ 21

England v Exrs, 375 US 411 (64) ........ passim

Fay v Noia, 372 US 391 (63) ........ 7, n.14

Felhaber v Felhaber, 681 F2d 1015 (S-FL 82)... 26

Fry v Tucker, 202 SW2d 218 (47) ........ 26

GA v Rachel, 384 US 808 (66) ........ 10

Gibson v Berryhill, 411 US 564 (73) ..... 20, 25

Griffin v Griffin, 327 US 220 (46) ........ n.20

Oe” RO eee eee n.20

Henry v Bank, 595 F2d 291 (5-MS 79) ...... 21

Hovey v Elliot, 167 US 409 (1897) ........ n.20

Howell v Homecraft (I), 749 SW2d 103

pet ere eee ee 1, nl

Howell v Homecraft (Homecraft III), —US—, 109 SCT 1124,

cert den, 57 USLW 3491 (No. 88-923 21FE89) ...1,n.1

Howell v Homecraft, decided w/no opinion, 31 TXSCTJ 340

(TXSM 88) (Homecraft IT) .................. 1, n.1

Howell v SCT, 885 F2d 308 (5-TX 89) ........... 1

Howell v SCT, unpub. (WDTX 88)............. 1

Howell v State Bar (State Bar I), 674 F2d 1027

lis 2 re ar 10, n.4, n. 11, 11, 12, n.18

Howell v State Bar (State Bar III), 710 F2d 1075

3 A ae eae ae a ee 10, n.4, 11

Howell v State Bar (State Bar IV), 466 US 950 (84),

Sees SITIOS (ZGAROF) 0g cw ccc cece cee. n.4, n.6

Huffman v Pursue, 420 US 592 (75) ......... 20

Liljeberg v Health Services, 108 SCT 2195 (88)....... 25

Slane © VGN, Ge UG Fal CFI) 2 we tec te tw 8

Kremer v Chemical, 456 US 461 (82) ........ n.13

Mayberry v PA, 400 US 455 (69) ......... 24

Medical Fund v Heckler, 804 F2d 33 (3-PA 86)...... 29

Middlesex County Ethics v Garden,

ee Wee Ge Cee ss ee et ec n.5, 19, 20, 23, n.16

Mitchum v Foster, 407 US 225 (72) .......... 8

Monroe v Pape, 365 US 167 (61) ............ 7

Moore v Sims, 442 US 415 (79) ............ 19

Murchison, In re, 349 US 133 (55)....n.19, n.21, 24, 25, 26

NAACP v Button, 371 US 415 (63)........... 27

Nalle v City of Austin, 22 SW 960 (TXSM 1893)... . 6, 26

New Orleans PS v NO, 109 SCT 2506 (89) ..... 20

O’Boyle v Bevel, 259 F2d 506 (5-TX 58)..... 25, n.20

Old Wayne v McDonough, 204 US 8 (07)....... n.20

Pennoyer v Neff, 95 US 714 (1878) ......... passim

Pennzoil v Texaco (IV), 481 US 1 (86)....... passim

Polk v State Bar, 480 F2d 998 (5-TX 73)...... n.5

Postal Telegraph v Newport, 247 US 464 (18)..... n.20

Rhoades v Penfold, 694 F2d 1043 (5-TX 83)...... 26, n.21

Rooker v Fidelity, 263 US 413 (23).......... passim

Royall, Ex Parte, 117 US 241 (1886)...... 7, 8, n.14

RR Com. v Pullman, 312 US 496 (41)......... n.18

memes © G6, SOP WS Bee GS) ww wet eet 21

State Bar v Howell (State Bar II), 103 SCT 1515 (83)... 10, n.4

Steffel v Thompson, 415 US 452 (74) .......... n.16

Stephenson v Kirkman, 297 SW2d 265 (TXCVAP 27)... 26

Taylor v Hayes, 418 US 188 (74) ............ 24

Templeton v Giddings, 12 SW2d 851 (TXSM 1889)... 26

Texaco v Pennzoil, 626 FS 250 (SDNY 86)

Bo eee a Se oo ee ee ee 13, n.23

Texaco v Pennzoil, 729 SW2d 768 (TXAP 87)

Cee En ss 6 oe ele a se ee n.8

Texaco v Pennzoil, 784 F2d 1133 (2-NY 86)

Coe GEE 5 6 9. veo VS ew 6 6 8 passim

sae Vs ee See Ear) 6 8 te 6 8 tw % 25

United Mine Wkrs v IL, 389 US 217 (67) ..... 27

US v Truckee, 649 F2d 1286 (9-NV 81) ...... 26

Wallace v Howell, 707 SW2d 876 (TXSM 86)... . 1.22

Ward v Monroeville, 409 US 57 (72)... . . 25

Wetmore v Karrick, 205 US 141 (07)....... n.20

Younger v Harris, 401 US 37 (71)........ passim

Zwickler v Koota, 389 US 241 (67) ........ 8

Texts and Others:

Briefs, England v Exrs, 11 LE2d 1072........ 11

Theis, Res Judicata, 70 NWLR 859 (76)........ n.2, n.17, 22

No.

IN THE

Supreme Court of the United States

October Term, 1989

CHARLES BEN HOWELL, Er ac,

Petitioners,

THE SUPREME COURT OF TEXAS, Er ac.

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MELvyn CaRsSON BRUDER

Counsel of Record

for Petitioners

Three Forest Plaza

12221 Merit Drive

Suite 150

Dallas, Texas 75251

(214) 991-6474

OPINION BELOW

Howell v SCT, 885 F.2d 308 (5-TX 89) (PA 1-13); Howell

v SCT, unpub. (WDTX 88) (PA 14-33). Companion case:

Howell v Homecraft, —US—, 109 SCT 1124, cert den, sum. 57

USLW 3491 (no. 88-923, 21FE89) (Homecraft III); Howell v

Homecraft, decided w/no opn. 31 TXSCTJ 340 (TXSM 88)

(orders at PA 37-40) (Homecraft II); Howell v Homecraft, 749

SW2d 103 (TXAP 87) (Homecraft I).

JURISDICTION

Supreme Court: 28 USC §1254(1); Trial Court: 42 USC

§1983. Fifth Circuit judgment, October 11, 1989 (PA 33-4);

rehearing denied, November 8, 1989 (PA 34). Extension

Application A-559 pending.

COURT RULES INVOLVED

Texas Rules of Appellate Procedure:

Rule 15.

(a) Within thirty days after the filing of a proceeding in a

court of appeals, the Supreme Court, or the Court of Criminal

Appeals, any party may file with the clerk of the court a

motion stating grounds why a justice or judge before whom

the case is pending should not sit in the case. The court shall

allow the filing of a motion after the expiration of thirty days

if the motion is grounded upon reasons not known within the

thirty day period and upon a showing of good cause.

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

all other parties or their counsel of record, together with

notice that movant expects the motion to be presented to the

justice or judge ten days after the filing of such motion unless

otherwise ordered by the justice or judge. Any other party

may file with the clerk of the court an opposing or concurring

statement at any time before the motion is decided.

judge shall either recuse himself or certify the matter to the

entire court, which will decide the motion by a majority of the

justices or judges of the court sitting en banc. A justice or

judge who is challenged shall not sit en banc to consider the

motion. If a majority of the justices or judges are challenged,

the court shall nonetheless decide the motion as to each

justice or judge, one at a time, by a majority of the justices or

judges sitting en banc except the particular justice or judge

being considered each time shall not sit en banc to consider

the motion as it directly affects that justice or judge.

(d) to the extent that a motion to recuse is granted, the matter

is not reviewable. To the extent that a motion to recuse is

denied, the normal appellate review process shall apply.

Rule 15a.

(1) Disqualification

Appellate judges shall disqualify themselves in all proceedings

in which:

(a) they have served as a lawyer in the matter in

controversy, or a lawyer with whom they previously

practiced law (except in the context of a district or

county attorneys office) served during such association

as a lawyer concerning the matter; or

(b) they know that, individually or as a fiduciary, they

have an interest in the subject matter in controversy; or

affinity or consanguinity within the third degree.

(2) Recusal

Appellate judges should recuse themselves in proceedings in

which their impartiality might reasonably be questioned,

including but not limited to, instances in which they have a

personal bias or prejudice concerning the subject matter or a

party, or personal knowledge of disputed evidentiary facts

concerning the proceeding.

(Adopted by Supreme Court order of July 15, 1987, eff. Jan. 1,

1988.)

STATEMENT OF THE CASE

The history of the case and the contentions made are

extensive.! However, the essential question raised by this

petition is whether the US District Court erred in dismissing

for want of jurisdiction. For this purpose, the statement in the

opinion of the Fifth Circuit is sufficient:

. [Petitioner] brought this §1983 action seeking

declaratory and injunctive relief. The district court

concluded that Howell had already litigated his

the disqualification claims that petitioner leveled against the members of the Texas

Supreme Court are in the appendix hereto. (PA 44-88) Petitioner’s motion was

overruled without comment. (PA 37,8 40-3). Homecraft II, 31 TXSCTJ at 340. For

discussion, see Hontecraft III, pet’n cert., passim.

The complaint was summarized, although not fully and with complete accuracy, in

the District Court opinion. (PA 14,6-7, 25-8)

Petitioner complained to the Texas Supreme Court that the Texas Court of

Appeals in its opinion made a number of erroneous statements of fact and that it

omitted and mis-characterized many of this petitioner’s contentions. However, it

hrows considerable light on the nature of the underlying dispute. Homecraft I, 749

S at’ 103.

In his previous petition, this petitioner outlined the substance of several of his

state law claims, which he urges required a reversal by the Texas Supreme Court.

Homecraft III, pet’n, 4-8, particularly nn.3 & 4

claims in state court and dismissed for lack of

jurisdiction. The district court assessed attorney’s

fees and expenses against Howell and his attorney as

Rule 11 sanctions. (PA 1)

The Fifth Circuit affirmed (PA 1). From the outset,

petitioner has not challenged the existence of the Rooker-

Feldman rule which holds that the statute fixing the

jurisdiction of federal district courts precludes ‘‘appellate

jurisdiction” over state court decisions. Rooker, Feldman at

462. Instead, petitioner has urged the application of the

Feldman window, first recognized by this Court in 1983,

holding that district courts do have jurisdiction to examine

state court rules that were involved in prior state litigation

between the parties, as long as the state rules were not

“inextricably intertwined” with the state action. Feldman, at

483-8.

The primary question raised here is the proper

definition of “inextricably intertwined.”

The courts below took the position that if a litigant has

previously asserted the federal invalidity of a state rule in

state court, he has thereby created “inextricable inter-

twine[ment]” barring subsequent Feldman window attacks

upon that rule.

Petitioner’s response is that this Court’s subsequent

decision of Texaco IV imposed an exhaustion requirement on

Feldman window litigation. Certainly, a party cannot be held to

have forfeited his right to litigate in the federal district court by

fulfilling a mandatory prerequisite in order to enter that forum.

Any other position fails to comport with logic or justice; the

Feldman window has effectively been destroyed.

Petitioner vigorously urged Texaco IV upon the Fifth

Circuit and insisted that the District Court had completely

misconstrued that authority. In spite of petitioner’s extended

argument of Texaco IV, the Fifth Circuit chose to issue an

Opinion that was completely silent with reference to the

Supreme Court’s most recent decision concerning Feldman

window litigation, ie., Texaco IV.

REASONS FOR GRANTING THE WRIT

Summary of Argument

First Question: The decision of the Fifth Circuit

effectively destroys the Feldman window, expressly recognized

in 1983 by the Supreme Court as a means to test state court

rules. Feldman at 483-8. See “Statement of the Case.” In

order to meet the exhaustion requirement of Texaco IV, a

litigant, while he is before the state court, must urge his

federal grounds of attack upon the offending state rule.

Intent of Congress is the key. It has not been intimated

that any constitutional limitation is involved. Instead, the no-

appellate-review-of-state-decisions-rule, the jurisdictional

preclusion rule, is based solely upon the jurisdiction statute.

Rooker at 416. That statute is not explicit. The Supreme Court

has construed the intent of Congress as providing that federal

district court jurisdiction be “strictly original.” The Supreme

Court has now found an intent of Congress that a “general

challenge” to a particular state rule is within district court

jurisdiction. Feldman at 487. Congress did not intend an illusory

remedy. It follows that where exhaustion is mandatory, such

exhaustion does not deprive the district court of jurisdiction

over the general challenge.

Second Question: The District Court wholly failed to

address petitioner’s alternate grounds for federal jurisdic-

tion—that the rulings of the Texas Supreme Court are wholly

void and subject to collateral attack in any court, federal or

state, where they may be drawn into question. Pennoyer v Neff,

95 US 714 (1878); Nalle v Austin, 22 SW 960 (1893).

The Fifth Circuit has overlooked that Rooker expressly

pointed out that it was not addressing a situation where there

was a Claim that the state judgment was void, only that it was

erroneous. Neither did Aftlantic Coast v. Engrs., 389 US 281

(70), or Feldman intimate any question as to the essential

validity of the state judgment.

Texas has long held that the judgment of a disqualified

judge is no judgment at all. There is no logical basis to apply

jurisdictional preclusion to void-judgment claims. If a state

court has jurisdiction to hear a void-judgment attack upon the

judgment of a sister state, a federal court should, by logic,

have equivalent power. Respondents have advanced neither

argument nor authority to the contrary. Neither do we find

any support for such a position in the decisions below. The

void-judgment attack should have been decided on its

essential merits. '

Third Question: The abuse of discretion standard is

inappropriate for appellate review of Rule 11 sanctions.

Sanctions may only be applied for flagrant abuse of the

constitutionally protected right of petition. Abuse of

discretion was singularly inappropriate in this case because

the dismissal was upon a pure point of law. The Fifth Circuit

should have independently reviewed the District Court’s

implicit holding that petitioner’s jurisdictional claims were

wholly untenable. Inasmuch as petitioner’s claims were

eminently arguable, he may not be sanctioned even, if as held

by the District Court, he was wholly or partially motivated by

supposedly illicit considerations.

QUESTION 1: The Feldman Window Was Available

Civil Rights— 1871 Through Younger

Lower federal courts were truly without jurisdiction over

state litigation before the 14th Amendment and the Civil

Rights Acts. Coming in the wake of the Civil War, these

enactments contained sweeping limitations upon state actions

against the individual. The lower federal courts were

established as the primary forum to redress claims for the

deprivation of civil rights.

Pennoyer v Neff, 95 US 714 (1878), held that a state

judgment, entered without jurisdiction, was void. It further

held that a void state court judgment could be attacked in a

federal court. The case is hornbook authority regarding void

judgments and collateral attack.

The right of a state prisoner to challenge his conviction

in a federal court was fully recognized in Ex Parte Royall, 117

US 241 (1886). However, the Court forcefully declared the

monolithic policy that a state prisoner will not be heard in

federal court until he has fully exhausted his state remedies.

He must first specifically raise his federal claim in every

available state forum. Ever since Royall, it has been accepted

that any federal court is empowered to intervene in state court

proceedings at any stage. Id. See also, Fay v Noia, 372 US 391,

400-6,36(63). A fortiorari Congress has the power to provide

that any federal court may annul any state proceedings

whatever, on federal grounds, at any stage, even when the

State proceedings are past judgment.

The federal courts were slow to respond to these

enactments until about 1960. Thereafter, such cases as Monroe

v Pape, 365 US 167(61), Mitchum v Foster, 407 US 225,39(72),

and Zwickler v Koota, 389 US 241 (67) fully confirmed the

lower federal courts as a forum to challenge unconstitutional

state action.

Increasingly, the federal courts were invoked against

state prosecutions, particularly after Dombrowski v Pfister, 389

US 479 (65). In the criminal area, the practice was effectively

terminated by Younger v Harris, 401 US 37 (71), requiring

federal abstention in state criminal actions. Initially, it was

considered as being restricted to criminal cases, but it has

been expanded. Most recently, it has been applied to private-

party litigation if an “important” state interest is involved.

Following Juidice v Vail, 430 US 327 (77), and Texaco IV,

lower federal courts have been fairly well excluded until state

litigation between the same parties regarding the same claim

is concluded.

Rooker and Jurisdictional Preclusion

Coming before the civil rights revolution, Rooker was a

simple one. A disappointed state litigant brought a federal suit

asking that a state judgment be annulled for violation of the

Contract Clause and the 14th Amendment. It could easily

have been disposed of by applying well defined principles of

jurisdiction and preclusion. Pennoyer, 95 US at 714; Cromwell

v Sac, 94 US 351 (1887). Instead, The Supreme Court went

further and held that the judicial code did not authorize a

federal district court to “exercise appellate jurisdiction.”

We emphasize: Rooker was not decided on constitutional

grounds. Penncyer, Royall, and similar decisions were left

unquestioned. Congress retains the naked power to provide

that any federal court may intervene, or even annul, state

proceedings when federal grounds exist. Commentators have

consistently questioned the transposition of issues that are

essentially preclusion issues into jurisdictional questions

creating numerous incongruities.? A well established rule

holds that jurisdiction, once acquired is never ousted by

subsequent events. However, Rooker overrides that rule; if

possesses the power to oust a federal court of jurisdiction, already

acquired.’ The State Bar litigation is an example of ouster.‘ In

1976, Petitioner Howell filed a §1983 action alleging that a

State disbarment suit was being prosecuted in violation of his

federally protected rights. The district court invoked absten-

tion citing Younger, but declared that petitioner had the right

“ (1) Assume that A, a North Dakota citizen-resident, in his home-state court, sues B, a

South Dakota citizen-resident on a federal ground using long arm jurisdiction. A take-

nothing judgment ensues.

(2) A then obtains a default on the same claim in South Dakota federal court.

Thereafter, seeking to avoid the default, B argues that the federal court was without

jurisdiction; Rooker would support B’s contention that the judgment is void and subject to

collateral attack.

(3) However, if the default were taken in the state court of South Dakota, the ordinary

rules of preclusion would apply—a plea of preclusion must be timely and expressly pleaded.

The default would prevail if taken in state rather than federal court. See Theis, Res

Judicata, 70 NWLR 859,79 n.114.

(4) Further, if the original take-nothing emanated from a North Dakota federal court

rather than a state court, it would be indifferent whether the South Dakota default were

secured in federal or state court. Rooker does not deprive a federal court of one state of

jurisdiction to review the decision of a federal court of another state. Waiver would apply;

the default would stand.

7 (1) Assume that X brings a federal action against Y for a civil rights deprivation. While

the federal action is pending, Y obtains a state court summary judgment enforcing the

disputed transaction.

(2) X and his counsel pondered whether the federal claim, already pending in federal

court, should also be raised in the state court. However, they decided not to do so because

of the Supreme Court's assurance that a litigant is entitled to a federal forum for his

federal claims. Rooker and its progeny, to be discussed, would hold that the state judgment

ousted the federal jurisdiction that already had been invoked. The right to ask for

certiorari from the state court would also be lost for failure to raise the federal claim in

State court.

(3) On the other hand, according to the present Fifth Circuit ruling, the mere act of

resenting the federal claim to the state court would foreclose the jurisdicti the

federal district court. If the federal claim is presented to and rejected by the state court,

X’s only remedy is the statistically insignificant right to petition for certiorari. X is placed

in an impossible quandary. Heads, you lose; taiis, you still lose.

‘Howell v State Bar (IV), 466 US 950 (84), 52 USLW 3704 (23AP84); Howell v State Bar

(III), 710 F2d 1075 (5-TX 83); State Bar v Howell (II), 103 SCT 1515 (83); Howell v State

Bar (I), 674 F2d 1027 (5-TX 82).

to return “after the state court proceeding is completed,”

citing England v Exrs, 375 US 411 (64) (opinion quoted, State

Bar I, 674 F2d at 1028).°

Relying on the district court’s assurance, this petitioner

had presented no federal claims in state court. Alier the state

litigation was concluded, petitioner returned to the district

court, but it had changed its mind; case dismissed.

Petitioner Howell appealed and won reversal; held, the

district court erred in declaring England applicable; however,

petitioner entitled to federal trial because it had been

promised. State Bar I, 674 F2d at 1031. The Supreme Court

vacated. State Bar II, 103 SCT at 1515. Held on remand, the

Rooker line precluded federal jurisdiction. All but one federal

claim was barred. State Bar III, 710 F2d at 1075.

The teaching of State Bar: On March 4, 1976 when the

District Court abstained, it was impossible for the Rooker line

to apply—the state case had not gone to judgment. On the other

hand, Younger is a rule of comity with no jurisdictional

attributes—a deference to Our Federalism. Had the district

court refused to abstain, any judgment in petitioner’s favor

would have been jurisdictionally valid, only attackable on direct

appeal. It may have established the law of the case even if a

Younger reversal had ensued. In fact, on March 4, 1976, when

the district court abstained, it was possessed of the naked

power to entirely remove the state proceedings. GA v Rachel,

384 US 808 (66); 28 USC §1443.

The inevitable conclusion: Rooker has invested state

courts with power to oust federal courts of jurisdiction. The

Plaintiff denied that was applicable, primarily on strength of the Sth Circuit's

previous decision in 480 F2d 998 (5-TX 73), but according to Middlesex

County v Bar, 457 US 423 (82), Polk was wrongly decided.

Rooker line far exceeds mere preclusion, waived unless timely

pleaded. The final irony of State Bar: Relief from ordinary

preclusion is available if the previous action did not provide a

full and fair opportunity to litigate the preclusion being

asserted. State Bar I. However, in “jurisdictional preclusion”

cases, the federal court is barred from applying such

principles. /t must dismiss. State Bar II1.

England—A Retreat from Jurisdictional Preclusion

England, 376 US at 411, challenged a medical practice

act. The federal district court abstained to allow state court

construction.

On the plaintiffs’ return to federal court, it dismissed,

finding state rulings on the federal issues preclusive. Rooker

would not only hold the rulings preclusive but jurisdictionally

SO.

No preclusion!! said the Supreme Court. The federal

plaintiffs were in the state court against their will, only because

the federal court sent them there. A federal court may bifurcate

a lawsuit to preserve a federal plaintiffs right to litigate in his

chosen forum. Rooker was argued, but the Court chose not to

apply it. Briefs, England v Exrs., 11 LE2d 1072.

Petitioner Howell’s situation is comparable to the

England plaintiffs’. Although petitioner was not ordered into

State court. Homecraft, at the outset, presented no federal

aspects; he had no choice but to sue in state court. As

discussed below, he was forced to remain and exhaust all

avenues of relief before moving to federal court. His presence

in state court was just as involuntary as the England plaintiffs.

While in state court, both petitioner Howell and the Eng-

land plaintiffs asserted their federal claims and suffered

adverse rulings. Were these rulings preclusive, either in the

ordinary sense or jurisdictionally? No! said England. Plaintiffs

should have given notice but should not have argued their

federal claims in state court. Thus, there would have been no

preclusion, reasoned the Supreme Court. However, inasmuch

as the plaintiffs legitimately misunderstood what was expected of

them, they were nevertheless relieved from ordinary preclu-

sion.®° Jurisdictional preclusion was argued but not addressed.

Feldman— Jurisdictional Preclusion Re-Confirmed

Feldman, 460 US at 462, caused reversal of State Bar I.

Two graduates of non-accredited law schools sought waivers

to take the bar examination from the state-equivalent court.

Upon denial, they brought federal suit. The Supreme Court

reaffirmed Rooker and the doctrine of jurisdictional

preclusion but recognized a window that would not be closed

by jurisdictional preclusion.

To the extent that . . . [these applicants] mounted

a general challenge to the constitutionality of . . . [the

court rule in question], the District Court did have

subject-matter jurisdiction over their complaints.

in State Bar IV, 52 USLW at 3704, 466 US at 950, plaintiff Howell argued that he, likewise

was in state court against his will having been hailed into that court to answer charges filed

by a state agency. He t to reserve his federal rights for litigation in a federal forum by

promptly asserting them, before the state court went to judgment, in a federal court which,

over his objection, invoked abstention. He further sought to reserve them by giving notice

thereof to the state court. He reasoned that the Sth circuit had, with good grounds, held

that he should be relieved from the ordinary rules of preclusion. Citing England, he further

urged that jurisdictional preclusion should not be allowed to reach claims

prior to the time of the state judgment. He argued that

jurisdictional preclusion had never been applied in the abstention context and should not

be applied in that area because it would inevitably lead to the forfeiture of the right to

litigate federal questions in federal courts. Even though certiorari was denied, plaintiff

considers the argument still viable; the denial of certiorari proves nothing.

The difference between secking review... of a

state court’s final judgment .. . and challenging the

validity of a... rule has been recognized...

implicitly, in the opinions of this court... .

[T]here is a subtle . . . distinction between...

claims which a frustrated bar applicant might

bring. . . . The first is a constitutional challenge to the

State’s general rules and regulations governing

admission; . . . [F]ederal courts do exercise jurisdiction

over... [such] challenges. ...”’

Id. 482-7 (emphasis added). In describing permissible federal

claims, the Court spoke of those which were not “inextricably

intertwined” (id. 482, n.16) with the individual plaintiffs case,

thereby creating the litmus test for Feldman window claims.

Petitioner Howell asserts that his challenge of TXRAP 15a

meets the test of “‘not inextricably intertwined.” We do not

believe that the courts below essentially disagree except that

they considered that petitioner committed “inextricable inter-

twine[ment]” by urging his federal claims in state court.

Texaco II—The Feldman Window Applied

In 1985, Pennzoil obtained a state court judgment

against Texaco. Before appealing, Texaco entered the U.S.

District Court with seven federal claims, two of which

attacked TXRCVP 364, requiring 100% security as the price

of supersedeas. A preliminary injunction from the district

court, Texaco v Pennzoil, 626 FS 250 (SDNY 86) (Texaco 1),

prohibiting enforcement of the state judgment pending the

State appeal, was upheld by the Second Circuit. Texaco II. As

to the two claims, the court rejected Rooker-type contentions

of jurisdictional preclusion and applied the Feldman window.

Id. 1141-5. Reminiscent of England, it observed that “Texaco

did not choose the Texas state court... but was summoned

into that court by Pennzoil.” /d. 1144. Held:

... [Under Rooker-Feldman, five claims] must be

dismissed for lack of subject matter jurisdiction.

Rooker, however, does not bar a federal court from

exercising jurisdiction over . . . [two of Texaco’s

claims] which allege that the Texas . . . supersedeas

bond provisions deny Texaco due process and equal

protection, as applied. Those claims have never been

presented to or adjudicated by a state court. Nor are

they “inextricably intertwined” with the barred

claims. /d. (emphasis added).

The District Court below found Texaco distinguishable

because, unlike Texaco, petitioner Howell had presented his

federal claims to the Texas Supreme Court. Although the

Second Circuit pointed out that the federal claims had not

been urged in the state court,’ the Supreme Court

emphatically held that such was, in fact, necessary. We do not

know the Fifth Circuit’s views of Texaco. Although it is the

latest Supreme Court decision in point, the Court omitted its

mention.

The District Court below read Texaco II as holding that Texaco was entitled to litigate its

federal claims in federal court “because they had not been presented to.. . [the] state

court... (R.11) (emphasts added).” The Court has read too much from the Second Circuit

opinion. Although that court discussed the fact that the federal claims had not been raised

in state court, it is to be emphasized that five were turned away because they “lack[ed)

subject matter jurisdiction,” not because they had been urged in state court. Likewise, the

two that were sustained were upheld, not because they had not been raised in state court,

but on account that their subject matter made them appropriate for Feldman window

litigation. A direct ruling by the Second Circuit that “If you had raised these claims in state

court, you could not raise them here” would have been pure dicta. In any event, the

Supreme Court took an entirely different view of not-raised-in-state-court and its views

must prevail.

Texaco in the Supreme Court

—The Feldman Window Confirmed

Texaco was unanimously reversed by the Supreme

Court.® Texaco IV. Six opinions were written. The majority

was grounded on Younger v Harris; the federal court should

have abstained. Five justices (Powell, Rehnquist, White,

O’Connor and Scalia) considered that Younger controlled;

such was the ratio decidendi. Four justices (Brennan, Marshall,

Blackmun and Stevens) disagreed, arguing that Younger

should have limited application to civil litigation.’

The separate opinions of the justices are particularly

important. As noted by the District Court below:

[F]ive of the justices indicated agreement with the

Second Circuit’s determination that the Rooker-

Feldman doctrine did not bar Texaco from

proceeding on its claims in federal district court. See

Texaco... [IV] (Scalia and O’Connor, JJ.,

concurring); id. at 1531 (Brennan, J., concurring in

judgment); id. at 1534-5 (Blackmun, J., concurring in

judgment); id. at 1536 n.3 (Stevens, J., concurring in

judgment).

(R.10). Thus, the Feldman window was confirmed by the

Supreme Court. Only Justice Marshall specifically expressed

disagreement. 107 SCT at 1533. The remaining justices

(Rehnquist, White and Powell) did not express themselves on

the point.

Sin the interim between the Second Circuit opinion and the Supreme Court decision, the

state judgment was affirmed. Texaco v Pennzoil, 729 SW2d 768 (TXAP 87) (Texaco III).

at is clear that all state proceedings were concluded before petitioner Howell filed his

federal complaint. Abstention only means federal trial court jurisdiction postponed, not

denied. The abstention ruling of Texaco IV has no application in the case at hand.

In Texaco, the Supreme Court Necessarily Held

That Raising the Federal Claim in State Court

Does Not Create a Jurisdictional Preclusion

Throughout its opinion, the Supreme Court strongly and

repeatedly implied that Texaco was being denied access

through the Feldman window because it failed to raise its

federal claim in state court.'®

The pervasive theme of the Texaco IV majority was that

those who do not first exhaust their federal remedies in state

court may not have access to the federal court by way of the

Feldman window, a message in direct conflict with the Fifth

Circuit ruling that petitioner’s right to access the Feldman

window was forfeit because petitioner raised his federal claims

in state court.

Feldman itself Indicates That Raising

The Federal Claim in State Court

Does Not Bar the Feldman Window

In connection with his waiver application to the state-

equivalent court, Feldman’s counsel stated:

Ociceen times during its opinion, the Court quoted and discussed Younger abstention.

The Court reiterated that Texaco had not applied to the state court. It emphasized that

comity endeavors to protect federal rights in as non-obtrusive manner as possible.

The Court pointed out the policy that the states should have the first opportunity to

interpret their laws. It stated that state adjudications regarding their statutes can even

render federal decisions meaningless. It emphasized the possibility that state court

construction could have given Texaco the desired relief. It stated that proper respect

required that the states have the first opportunity to construe their laws.

The Supreme Court extensively criticized Texaco for not even attempting to secure

state court relief. It declared itself unwilling to believe that the state could not grant relief

in the face of Texaco’s failure to make an attempt. It held that existing state decisions were

not relevant because none of those authorities addressed the federal constitutional claim

being made by Texaco. It concluded that “Because Texaco... did not give the Texas

courts an opportunity” to construe Rule 364, the federal district court should have

absiained.

Texaco JV. 107 SCT 1523, 1525 nS, 1526-6, 1526, 1526 n.9, 1526, 1526-7, 1527, 1527

n.13, 1527-8, 1528, 1528, 1528-9 n.15, 1529 n.15, 1529.

... [BJarring Mr. Feldman from the practice of

law ... would raise important [constitutional]

questions .. . that Mr. Feldman is prepared to pursue

in the United States District Court if necessary. .. .

Id. 466-7. He also stated that “serious questions under the

United States Constitution are raised” by the procedures

followed by the state-equivalent court. Feldman’s counsel

cited case authority in support of his position. Finally,

Feldman’s counsel stated that “the federal antitrust laws

provide an alternative basis for questioning the legality of...

[the contested] procedure,” again citing case authority." Jd.

Contrary to the Fifth Circuit (PA 9, n.2), the Supreme

Court, in Feldman, implicitly held that a presentation tc the

state-equivalent court of federal claims did not constitute a

jurisdictional preclusion,'? although it indicated that such

action could constitute an ordinary preclusion. The Court

stated that “We leave the question to the District Court on

remaad.” Jd. 487-8. No subsequent history of Feldman is

available. It was error to dismiss petitioner Howell’s case “for

lack of jurisdiction.” At most, only an ordinary preclusion was

involved.!%

Min Feldman, the petitioning court and its judges argued to the Supreme Court that

Applicant’s presentation of his federal claims to the state court affected a Rooker-type

preclusion, but Applicant argued that he was only effecting an England reservation.

However, the England reservation mechanism is only available in connection with

Pullman-type abstention; not with Younger abstention. So held: State Bar I, 674 F2d at

1027. It follows that any attempted England reservation was ineffectual. Hence, the

Applicant’s presentation of claims to the state court was a general presentation making him

subject to all preclusions that a general presentation will cause.

2 Counsel submitted letters instead of formal pleadings to the court. This, the Supreme

Court held, was a matter of indifference. Feldman 460 US at 477-82.

3 Recognizing that Feldman expressly remanded ordinary preclusion (“res judicata”)

issues to the lower court, id. at 487-8, petitioner briefed those issues to the Courts below,

but neither one addressed them. Space limitations require that ful] discussion be omitted

herein.

All preclusion law, both ordinary and jurisdictional, springs from the same fulcrum, the

Younger Abstention Demands Exhaustion

Younger, 401 US at 37, holds that one who is the object

of a criminal action may not have §1983 relief for the duration

of one complete criminal prosecution. The long established

rules also require that the criminal defendant fully exhaust his

remedies; his federal claims must be asserted in state court

while abstention is in effect.’ Otherwise, both Supreme Court

review on certiorari and collateral review will be denied.

Younger continues to march into the field of civil

litigation. Both the authorities and sound judicial policy

require that the litigant held in state court by Younger

abstention must exhaust his state remedies by first asserting

his federal claims in state court. That approach serves comity

and Our Federalism as enunciated in Texaco IV, quoted

above, in part. The case at bar is illustrative. Had petitioner

Howell been forced by Texaco IV not to voice his federal

claims in the Texas Supreme Court, all hope that the Texas

court might sustain him would vanish. An England reservation

would have done little more; petitioner would be on warning

historic principle that, insofar as justice will permit, a single dispute should be litigated but

once in a single forum. Ordinary preclusion must be rejected for much the same reasons

as jurisdictional preclusion.

The general rule of preclusion is that it bars not only those issues that were raised but

all that cou ¢ been raised. Cromwell v Sac, 95 US 351 (1876). This principle must be

adjusted to accommodate our constitutionally mandated dual court system. The could-

have-been-raised test would destroy the Feldman window just as surely as the Fifth

Circuit's mandatory-exhaustion-creates-inextricable-intertwinement ruling.

Ordinary preclusion may not be applied where there has been no full and fair

opportunity to litigate the issue in the prior action. Where the right of a federal iorum has

been guaranteed, the litigant has not had that opportunity until the predicates to entry

have been satisfied. England at 411; State Bar I at 1031.

Where the litigant has had a choice of forum, he is bound by his choice, even on a

could-have-been-litigated basis. Kremer v Chemical, 456 US 461 (82); MT_v US, 440 US

147,64-5 (79). Petitioner Howell was not in state court as a matter of choice; the rules of

ordinary preclusion are no bar.

14 A+ least since Ex parte Royall, 117 US 241, the defendant must exhaust all state remedies

by carrying his federal claim through the highest state court in which review may be had.

After that, he may petition the United States Supreme Court, he may seck collateral relief

in the federal district court, or he may assert both remedies. Fay v Noia, 372 US at 391,436.

not to strive to convince the Texas court his position was

correct on pain of forfeiting federal review.»

It requires up to four years for a case to wend through

the state system. Does it serve any policy of the state or its

courts to muzzle the citizen for four years? The individual is

placed in a terrible quandary, forced to travel a treacherous

and expensive path to achieve the right assured by the Civil

Rights Act, to litigate federal claims before a federal forum.

The exhaustion rule, according not only the right but the

obligation to present federal claims before state tribunals,

must follow wherever Younger travels, in civil and criminal

actions. Otherwise, the state litigant is saddled with two

unacceptable choices: either forego his right to a federal

forum for federal questions; or remain for years in legal

limbo. When Younger forces a litigant to enter or remain in

state court, both Feldman and Texaco I/II must be read as

requiring the litigant desiring a federal forum to first urge his

federal claims before the state court.

Texaco II and Feldman are confirmed by Middlesex

County Ethics v Garden, 457 US 423 (82), applying Younger

abstention to quasi-judicial attorney-discipline hearings. Nine

passages in that case imply an exhaustion requirement on the

would-be federal plaintiff.'° Accord: Moore v Sims, 442 US

the manner in which bar applicant Feldman presented his federal claims to the state-

equivalent court was hardly conducive to persuade that court to even consider, much less

sustain them. Feldman, 460 US at 466-8. In fact, we interpret the message as a veiled threat

that “If this court won’t give us what we seck, we will go to federal court.” Plainly, messages

of this nature do nothing to foster comity and good relations.

l6-The Supreme Court there declared: (1) Younger abstention cannot be invoked if the

state fails to provide adequate machinery to urge federal claims. However, the

presumptions are in favor of the state. Id. 431. (2) Abstention is required unless state law

clearly bars federal claims. Id. 432. (3) The inquiry is whether state proceedings afford an

adequate opportunity to raise constitutional claims. Id. (4) So long as constitutional claims

can be determined in state proceedings, the federal courts should abstain. Id. 435. (5) The

Middlesex respondent failed to even attempt a constitutional challenge in the state

proceedings. Id. (6) Abstention is based on the theory that the individual should first set

up his defense in state court. Id. (7) Any doubt that the Middlesex respondent had an

insufficient opportunity to present his challenges was laid to rest by changes in state

415, 23, 26, 30 (79); Gibson v Berryhill, 411 US 564, 77 (73).

Most recently, this Court has declared “ ‘[A] necessary

concomitant of Younger is that a party (wishing to contest in

federal court the judgment of a state judicial tribunal) must

exhaust his state appellate remedies before seeking relief in

the District Court.’ ”’ New Orleans PS v NO, 109 SCT 2506, 18

(1989) (quoting Huffman v Pursue, 420 US 592, 608 (75)).

Petitioner Howell has done no more than Middlesex, Texaco

IV, and Feldman implicitly required—to assert his federal

claims in the state forum in the hope that the state would

honor them and render it unnecessary for him to recourse the

federal court. He may not be penalized for following these

decisions. Otherwise, the Feldman window is no more than a

delusion and a snare, and is, to the plaintiff, in practical effect,

a non-entity.

The Courts below ruled in effect that although the

Feldman window exists, it is a barred window, serving no

practical purpose. A former state litigant who did not exhaust

his state remedies has “‘forfeit{ed] his right to obtain

review ... in any federal court.” Feldman, 460 US at 484 n.16.

However, if the litigant has exhausted, his actions have barred

the window; the case must be dismissed because “inextricable

intertwine[ment]” has ousted the federal court of jurisdiction

(PA 10) that would otherwise be available.

Surely, Congress did not intend that the jurisdiction

statute should operate in this manner. The Supreme Court, in

recognizing the Feldman window, did not intend to perform a

vain act or provide an illusory remedy. Jurisdictional

preclusion must be accommodated to the Feldman window, to

make that express right of federal recourse meaningful.

procedure pendente lite. Jd. 436. (8) The case differs from Steffel vy Thompson, 415 US 452,

63 (74) where there was no ongoing state proceeding. Jd. n.14. (9) The conclusion: The

State provided an adequate opportunity to raise federal issues; the federal district court

correctly abstained. Id. 437.

Unfortunately, Feldman did not go forward and discuss the

application of preclusion concepts to the window, and for such

purpose, the writ should issue.

Jurisdictional preclusion is not, in practice, as monolithic

as the Courts below considered. In Sosna v JA, 419 US 393

(75), the case had been previously litigated in state court; the

Supreme Court brushed preclusion questions aside stating

that they were not properly raised. However, it is fundamental

that jurisdictional questions must be noticed by a court on its

own motion. Apparently, the Supreme Court did not consider

jurisdictional preclusion to apply, otherwise Rooker-type

preclusion would have forced the Court to dismiss.'’ See also

Ellis v Dyson, 415 US 452 (74). (Supreme Court approved re-

litigation of state judgment).

Henry v Bank, 595 F2d 291,8 (5-MS 79) (state court

defendant granted federal injunction against enforcement of

state judgment being appealed through state system) was

quite comparable to Texaco /I/. However, the Henry

defendants did what petitioner Howell did and what the

Supreme Court criticized Texaco for failing to do; they

exhausted their state remedies before approaching the federal

district court. Clearly, Henry’s course better preserves comity

and conserves federal resources. On the other hand, the

decision below implicitly declares the Henry injunction

without jurisdiction and void.

\ Neither can we accept Atlantic Coast v Engrs., 398 US 281 (70), heavily relied on in

Feldman, as a truly jurisdictional authority. The Supreme Court there held state and

federal jurisdiction “concurrent.” Id. 295, citing England. Could that federal injunction

have been collaterally attacked as void, the ultimate test of jurisdiction? Clearty not! In our

view, Atlantic is a comity declaration, comparable to Younger and Feldman, which

however, cannot be labeled as an abstention case because the principle of deferred

adjudication was absent. See 70 NWLR @880 n.121 re: Atlantic.

If Younger principles continue to expand and if

broad res judicata effect is given to state court

judgments, then the promise of the Civil Rights Act

that one with a constitutional grievance shall have his

choice of federal court or state court will become

empty. ...

If relitigation in habeas corpus after exhaustion of

State remedies is permissible, then relitigation in a

Civil Rights Act suit should also be permissible. As it

becomes increasingly difficult to avoid state court

litigation, . . . only full relitigation in federal court will

preserve the element of choice embodied in the 1871

This concern [expressed in England] should be equally

great where the abstention is of the Younger variety. . . .

The federal courts clearly have a congressional

mandate to hear suits for deprivations of civil rights.

Expansion of Younger abstention . . . must be tempered

through a restrained application of res judicata

principles. England suggests that the Court will follow

a middle road: allowing initial state resolution but

retaining a final check.

Theis, Res Judicata, 70 NWLR 859, 870-875 (76)."®

1B Respondents might argue as a fall-back position that petitioner should have simply filed

an England reservation in the state court. However, State Bar 1, 674 F2d at 1027 declares

an England reservation insufficient in Younger cases; it accomplishes nothing. We also

think there is a practical difference:

A. Pullman abstention is selective; a deliberately chosen remedy. In a Pullman

case, the federal action has commenced, the court has conducted proceedings and

has found arguable grounds for federal relief. However, it finds a state issue that

should be answered by the state court. Reference is a considered act within the

Recap: Younger Abstention Requires Exhaustion

As presented under “Summary of Argument,” the intent

of Congress is the key; it intended a meaningful Feldman

window. Middlesex, Feldman itself, and Texaco I] all insist that

the Feldman window litigant first exhaust by presenting his

federal claims to state court. If the Feldman window is to be

accommodated to the demands of Younger, it must be held

that Congress did not intend for jurisdictional preciusion to

barricade the Feldman window and thereby create an illusory

remedy.

QUESTION 2: The Texas Supreme Court Order Was Void

Petitioner’s alternate ground, the constitutionally-void-for-

want-of-jurisdiction ground was addressed but cursorily by the

Fifth Circuit; the Trial Court addressed it not at all. It is an

independent ground, separate from petitioner’s Feldman

window attack on the Texas rule. /t would exist even if Texas

Rule 15a page 1 supra, had never been adopted.

discretion of the federal judge who retains jurisdiction and resumes the trial upon

receipt of the state determination. In that circumstance, notice to the state of the

pendency of the federal case is ample because the federal judge affirmatively does

not expect the state judge to answer the federal issues; he has already decided that

he will answer them.

‘ tention is automatic abstention, coverin ire class of

litigation; it does not spring from the specific ruling of a federal judge; it emanates

from a rule of law, applying to cases that have never been before the federal court.

Where a case is in federal court and it determines that Younger abstention is

required, it goes no further. The federal plaintiff is entitled to return if he fails to

obtain relief in state court, but his return is not expected, as with Pullman abstention.

Younger, in contrast with Pullman, is designed to minimize federal participation in

areas predominantly committed to the state courts. The would-be federal plaintiff is

urged to first seek complete relief before invoking the federal forum. Those who

desire a federal forum, but are subject to Younger abstention, may not have one

simply by giving notice to the state court; notice alone will not fulfill the objectives of

comity and federalism. Younger requires that

carn it by showing diligence — that while in state court, they actively sought relief on

their federal claims and were unsuccessful.

Federal Jurisdiction of Void Orders—Overview: (1) A

motion to dismiss for want of jurisdiction is a general

demurrer. All facts well pleaded are deemed true; the court

decides if it has power to grant relief. (2) A fair and impartial

tribunal is a fundamental due process right. (3) For demurrer

purposes, it must be assumed that the alleged disqualification

of the Texas justices did, in fact exist. (4) It was alleged to be

of federal constitutional proportions; that also must be

accepted. (5) Both under Texas law and under the due process

authorities herein, the act of a disqualified judge is a nullity

and may be collaterally attacked in any court. (6) The Rooker-

Feldman rule has no application to void judgments; plainly,

the contrary ruling of the Fifth Circuit is erroneous. See

“Summary of Argument, 2nd Question;”’ also footnote 21.

(7) Therefore, the District Court below had jurisdiction to

hear the void-judgment claim.

An Impartial Tribunal Is Fundamental: The due process

right to a fair and unbiased court is well established. A leading

authority: /n re Murchison, 349 US 133 (55) (Where, under

Michigan law, a judge functions as a one-man grand jury and

he charges a witness with contempt for refusing to testify, the

judge-accuser is disqualified to conduct the trial.)'?

The circumstances are myriad but the rule is clear—the

court must be impartial in fact; it must also appear to be

impartial. Mayberry v Pennsylvania, 400 US 455 (69); Taylor v

Hayes, 418 US 188 (74).

19 4 fair trial in a fair tribunal is a basic requirement of due process. Fairness, of

course, requires an absence of actual bias in the trial of cases. But our system of law

has always endeavored to prevent even the possibility of unfairness. ... Such a

stringent rule may sometimes bar trial by judges who have no actual bias and who

would do their very best to weigh the scales of justice equally between contending

parties. But to perform its high function in the best way, “justice must satisfy the

appearance of justice.”

Id. at 138.

Tumey v Ohio, 273 US 510 (27), (Judge of

misdemeanor court paid only through collection of court

costs. Held, due process denied.) declared that every

circumstance which offers temptation to forget the burden

of proof denies due process. Jd. 532. Accord: Ward v

Monroeville, 409 US 57 (72); Connally v Georgia, 429 US 245

(77); Commonwealth v Continental, 393 US 145 (68); Gibson

v Berryhill, 411 US 464 (73).

The first and only Supreme Court case on appellate

disqualification: Aetna v Lavoie, 475 US 813 (86) (Alabama

justice wrote opinion upholding punitive damages against

insurance carrier; such justice was, at the time, name-

plaintiff in class action seeking punitive damages from

unrelated carrier, unrelated claim. Held disqualified;

reversed.) Although he had no pecuniary stake in the case

before him, his possible economic gain from the precedent

being declared was sufficient.

The latest case in point: Liljeberg v Health Services, 108

SCT 2195 (88). Although the statute relating to federal

judges was a turn-point, the Court pointed out that the

integrity of judges “has constitutional dimensions” quoting

Lavoie, a state case, discussing Tumey, Murchison and Ward,

all state cases. Liljeberg at n.12.

The Judgment Is Void Where Due Process Fundamen-

tals Have Been Denied: The seminal case on constitutionally

void judgments: Pennoyer v Neff, 95 US 714 (1878).” Bass

and O’Boyle, footnote cites below, were subject to collateral

attack for failure to meet fundamental due process

Other cases in point: Atchison v Wells, 265 US 101 (24); Griffin v Griffin, 327 US 220

(46); Hansbury v Lee, 311 US 32 (40); Postal Telegraph v¥ Newport, 247 US 464 (18),

167 US 409 (1897); Wetmore v Karrick, 205 US 141 (07); and Old

204 US 8 (07).

Fifth Circuit cases: 172 F2d 205 (5-TX 49) (Judgment held void

because offended party deprived of jury trial); O’Boyle v Bevel, 259 F2d 506 (5-TX 58)

(Judgment taken before appearance date void for want of due process even though

Texas law would hold otherwise).

minimums. Petitioner makes the same challenge: the lack of

an impartial tribunal, declared fundamental by the

Murchison line, resulted in a void judgment. Recent cases:

Felhaber v Felhaber, 681 F2d 1015, 27-29 (5-FL 82); ALT v

SBA, 801 F2d 1451 (5-TX 81); US v Truckee, 649 F2d 1286,

1303 (9-NV 80). See, in particular, Rhoades v Penfold, 694

F2d 1043 (5-TX 83) (suit against Texas judiciary for

terminating parent-child relation while parent indigent,

without counsel), where the judgment was held “null and

void.””!

Texas Has Long Held the Action of a Disqualified

Court Absolutely Void: Buckholts ISD v Glaser, 632 SW2d

142,6 (TXSM 82); Fry v Tucker, 202 SW2d 218, 21 (47);

Templeton v Giddings, 12 SW2d 851 (TXSM 1889);

Stephenson v Kirkman, 297 SW2d 265,7 (TXCVAP 27).

Disqualification can be raised at any time. Nalle at 963.

Texas Has Attempted to Classify Disqualifications:

Texas authorities, including those above, have historically

held that bias and prejudice is not a disqualification.

However, at least since Murchison, the rule will not pass

constitutional muster. Responding to the 14th Amendment,

Texas has recognized additional grounds for the withdrawal

of tainted judges. However, Buckholts declared that only

Texas constitutional disqualification causes a void judgment;

so-called “statutory” disqualification was held waivable and,

lacking a timely objection, the right to complain lost. Plainly,

the Buckholts “statutory” disqualification is, in fact, 14th

Amendment disqualification.

2lWe submit that the Rhoades discussion of Rooker, was misplaced—similar to the

error of the Circuit Court below—see “Summary of Argument, Second Question.”

Rooker has nothing to do with void-judgment attacks. The line is the

controlling authority. Rooker v Feldman presumes a valid and enforceable, although

erroneous judgment. The distinction is well established. Pennoyer, Murchison, Bass, and

Penfold require a holding that the Texas justices were without jurisdiction to render a

valid judgment. Petitioner's case remains undisposed on the docket of that court. Thus,

he is free to assert its voidness in federal court.

Thus, Texas has recognized Fourteenth Amendment

grounds but through its case law, particularly Buckholts, it has

declared their application discretionary; this it may not do.

The attempted classification is constitutionally repugnant;

disqualification under the state and federal constitutions

must produce an equal result.

Procedures for relief from federal constitutional

disqualification, more onerous than those available from

State constitutional disqualification, constitute an invidious

discrimination. Texas cannot apply the abuse of discretion

rule to federal disqualification only.

For demurrer purposes, the respondent Texas justices

were under an impediment. Neither any affected justice nor

the Court was possessed of any discretion in deciding if any

of them should withdraw. Even though the impediment

springs from the federal constitution, the result must be

equal; each affected justice must step down. The further

participation by one or more affected justices (See Lavoie,

particularly concurring opinions) rendered the Texas court’s

actions void and subject to collateral attack.

QUESTION 3: Sanctions Were Not Proper

The Fifth Circuit brushed off the sanctions issue

merely stating “[Tjhe district court did not abuse its

discretion. (PA 13).” We submit that the abuse of discretion

standard is entirely improper.

The right of petition is guaranteed by the First

Amendment. United Mine Wrkrs. v IL, 389 US 217 (67);

Brotherhood of RR Trainmen v VA, 377 US 1 (64); NAACP v

Button, 371 US 415, 429-39 (63). Although few rights are

absolute, it is settled that First Amendment rights may not

be stifled. They must have growing room. Any procedure

that threatens to make a First Amendment right “costly”

must be carefully circumscribed.

Many people who enter the courts are unpopular and

unliked; they may be affiliated with groups that the

community disdains; and which it may even regard as

dangcrous. Those appearing in court can be litigious,

querulous, argumentative, and even obnoxious. The

Constitution must guard the rights of the unpopular; the

popular need no protection. Inasmuch as sanctions are in

derogation of a protected right, punishment may not be

imposed unless the conduct so far departs the accepted

norm as to threaten the system itself. Nothing approaching

this type of misconduct has been shown. On account of their

chilling effect, the sanctions must be set aside.

Because sanctions impinge upon a cherished right,

maximum safeguards are mandated. It follows that a

Sanctioned party must have plenary review; this most

subjective of remedies may not be imposed by a single judge

and thereafter insulated by a limited review standard.

Plenary review is mandatory.

Plenary review is particularly appropriate where, as

here, the Trial Court’s ruling was, almost purely, a ruling

upon the law. The primary if not the exclusive basis for

sanctions was a perceived lack of jurisdiction; jurisdiction is

a question of law. The Trial Court upbraided petitioner for

relying on Texaco IJ (characterizing it as Texaco J), declaring

it “factually distinguishable . . . because [petitioner]...

chose to raise his . . . challenges in the state action (PA 20).”

However, the court failed to note that the Supreme Court

later reversed because Texaco had not raised its federal

claims in state court. Certainly, the law was such that

petitioner presented an arguable case. If so, the First

Amendment is a bar to punishment for presenting that

argument.

Whether a legal claim is frivolous and wholly

untenable is a question of law. The ultimate reason for the

existence of appellate courts is to declare the law and see

that it is correctly applied. For such reason, trial court

rulings upon the law are never accorded any presumptions

of correctness; they must be weighed de novo. Medical Fund

v Heckler, 804 F2d 33,6 (3-PA 86). For certain, nothing less

is acceptable when the First Amendment is implicated.

We read the Fifth Circuit as interpreting the Trial

Court to have found vile motives on petitioner’s part, which

the Trial Court assertedly viewed as a free-standing,

independent grounds for punishment. Petitioner urges that

the record will not fairly support any such finding.”

Furthermore, it is basic to our jurisprudence that the law

does not punish for vile motive; it punishes for unlawful

conduct. Even more so where the First Amendment is

implicated, vile motive, standing alone, the most subjective

of all human evaluations, can furnish no basis for

punishment.”

22enace limits us to a single example: The Trial Court criticized a 1986 lawsuit which

petitioner brought against the respondent justices. The state proceedings are Wallace v

Howell, 707 SW2d 876 (TXSM 86); most of the Fifth Circuit proceedings were exhibits in

the Trial Court (Texas Supreme Court “Motion for Recusal” at R.783-7; federal

complaint at R791-806; opinion of Fifth Circuit on application for injunction at R841-2).

It appears that the 1986 suit played a large part in the Court’s findings of vile motive.

The Court prominently discussed the 1986 suit (PA 25-6) and concluded, “If Howell had

a sincere interest in challenging . . . the recusal statute [sic] .. . he would have pursued

the previous litigation . . .” (PA 28).

However, the 1986 action did not attack TXRAP 15a (text, supra, p.1) (there is no

recusal statute). It sought to invalidate certain election statutes, TX ELEC C secs

141.003; 141.033. The Court's findings of vile motive were based, at least in part, upon a

misapprehension of the elemental facts.

Brhe third ground for punishment, according to the Fifth Circuit evaluation of the

District Court opinion, was the fact that petitioner applied for a preliminary injunction

to freeze the Homecraft state supersedeas fund, pending determination of petitioner’s

CONCLUSION

For the reasons piven, a writ of certiorari should issue.

Respectfully submitted,

MELvyYN CARSON BRUDER

Counsel of Record

for Petitioners

Three Forest Plaza

12221 Merit Drive

Suite 150

Dallas, Texas 75251

(214) 991-6474

federal claims, such application being, in the District Court’s view, without sufficient

evidence of irreparable injury (PA 29).

The federal plaintiff in Texaco I sought very similar relief, a preliminary injunction to

restrain the collection of a state judgment pendente lite. Most certainly, petitioner

Howell was armed with direct authority that the relief sought was a proper subject for a

federal injunction.

The Texaco I court chose to grant the injunction whereas our Trial Court chose to

deny. However, such is not the test for sanctions; discretionary relief was involved. By

the same measure, an application for a preliminary injunction is not punishable unless

the applicant is asking the court to grossly exceed its discretionary powers. Petitioner did

not present evidence of irreparable injury comparable to Texaco I, but neither did he

ask relief of the same scale. Petitioner had already made a deposit sufficient to pay the

State judgment with money over; the fund was earning interest. Certainly. the Trial

Court had the discretion to balance the equities and preserve the status quo if it so

chose. Again pointing out the First Amendment implications, we submit that such

determination prohibits punishment for the attempted exercise of the right of petition.

Appendix

PETITIONER’S APPENDIX INDEX

US Court of Appeals, 5th Circuit;

Charles Ben Howell, et al., v The Supreme Court

of Texas, et al., No. 89-1032, October 11, 1989

Opanioms GBS FOG Fae oc ieccccviicgdaeenscsees PA 1-13

US District Court, Western District of Texas, Austin Division;

Charles Ben Howell v The Supreme Court of Texas, et al.;

Civil No. 88-CA-644, November 18, 1988

Order and Opinion; Unpublished.......... PA 14-PA 33

Supreme Court of Texas;

Charles Ben Howell v Homecraft Land

Development, Inc., et al.; No. C-7113, April 27, 1988

Notation re: Decision of the Texas Supreme

OOM. sc unt oe re eee PA 33

US Court of Appeals, Sth Circuit;

Charles Ben Howell v Supreme Court of Texas, et al.;

No. 89-1032

Judgment, Octeber 11, 1908 «oi 2 ssw dicarees PA 33-34

On Petition for Rehearing, November 8, 1989... PA 34

US District Court, Western District of Texas, Austin Division

Charles Ben Howell v Supreme Court of Texas, et al.;

Civil No. 88-CA-644, November 18, 1988

SORIROR . wn cc rcsasinne vans é meee PA 35

Supreme Court of Texas, Charles Ben Howell v Homecraft

Land Development, Inc. et al.; No. 3-7113

Creer, Fetewaty 1,. 1900 506s iieaeks tae eueee PA 37

Crier, Agee DO, TOE w0.0 0 cienczasceupestae eee PA 38

Cries, Agee 27, FBR cc cieenevicdenweee PA 38-PA 39

wren, Fane 3, PRG sc cicswccccaleecenenee PA 40

Statements by Justices of Supreme Court,

PEDCURY 5, TH <0 64s scaeeec ene eaweas PA 40-PA 43

Extract—(Petitioner’s) Motion for Recusal or

SPISQUOIITICMIION ...0 os sco kee oe ws PA 44-PA 49

Extract—(Petitioner’s) Affidavit in Support of

Motion for Recusal or Disqualification .. PA 49-PA 74

Extract—(Petitioner’s) Verified Exhibits in Support of

Motion for Recusal or Disqualification...... PA 75

News Release, March 12, 1986 ...... PA 76-PA 77

News Article, The Texas Lawyer,

POOR ad, THE « 5 kb ah 4 Re PA 78-PA 80

News Article, Dallas Times Herald,

RE hy. SE sk 8 ee PA 80-PA 82

News Article, Dallas Times Herald,

et Sera reer Sa Pe PA 83-PA 86

News Release, December 8, 1987.......... PA 86-PA 88§&

Proceeding in Related Case, Texas Supreme Court, Houston

Lighting v Reynolds, No. C5499, May 3, 1988

Chief Justice’s Certificate of Disqualification .... PA 89

Governor’s Appointment of Special

C2 PR as a ee a ee ee ee Se PA 90

News Article, Dallas Times Herald,

a SR PA 91-PA 92

PA 1

No.

IN THE

Supreme Court of the United States

October Term, 1989

CHARLES BEN HOWELL Petitioner

VS.

THE SUPREME COURT OF TEXAS, ET AL.

Respondenis

PETITIONER'S APPENDIX

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT; CHARLES BEN

HOWELL, ET AL. V. THE SUPREME CourRT OF TEXAS, ET AL., No. 89-

1032, Summary Calendar; October 11, 1989.

{Opinion; 885 F.2d 308]

Before Reav_ey; Kinc and Jounson, Circuit Judges. REAVLEY,

Circuit Judge:

PA 2

Appellant Charles Ben Howell brought this §1983

action secking declaratory and injunctive relief. The district

court concluded that Howell had already litigated his claims

in state court and dismissed for lack of jurisdiction. The

district court assessed attorneys’ fees and expenses against

Howell and his attorney as Rule 11 sanctions.

In this appeal, Howell asserts that the district

court erred in concluding that it did not have jurisdiction

under the Rooker-Feldman doctrine. Alternatively, Howell

argues that the court should have exercised jurisdiction

because the state court proceedings failed to comply with the

fundamental requirements of duc process and the results of

those proceedings were therefore void and subject to

collateral attack. Finally, Howell and his attorney argue that

the district court should not have imposed Rule 11 sanctions.

This action arises out of Texas state court

proceedings in which Howell, as plaintiff, suffered an adverse

jury verdict and judgment. A jury finding that Howell brought

his Texas Deceptive Trade Practices Act claims in bad faith

resulted in the awarding of attorneys’ fees to the defendants.

Howell appealed the judgment to the Fifth District Court of

Appeals of Texas. Because Howell was a judge on that court,

the normally seated judges recused themselves. A specially

appointed panel was convened and affirmed the judgment and

PA 3

imposition of attorneys’ fees against Howell.

Howell next applied to the Texas Supreme Court

for a writ of error. In connection with that application, Howell

filed a motion requesting that each of the justices recuse

themselves, or in the alternative, be disqualified. Howell’s

motion was accompanied by an affidavit that he claimed

indicated either that the justices “harbor[ed] a personal bias

or prejudice toward” Howell or “that the impartiality of . . .

[the] justices might reasonably be subject to question.” Howell

based his recusal/disqualification motion on Rule 15a’ of the

Texas Rules of Appellate Procedure and on the due process

clause of the Fourteenth Amendment. Howell’s motion

further provided:

In this connection, petitioner would show that

R.15a(1) sets forth the standards for the withdrawal

from a case of a judge or justice pursuant to the

Rule 15a provides:

(1) Disqualification. Appellate judges shall disqualify themselves in all

proceedings in which:

(a) they have served as a lawyer in the matter in controversy, or a lawyer

with whom they previously practiced law (except in the context of a district or

county attorneys office) served during such association as a lawyer

concerning the matter; or

(b) they Know that, individually or as a fiduciary, they have an interest in

the subject matter in controversy; or

within the third degree.

(2) Recusal, Appellate judges shouid recuse themselves in proceedings in

which their impartiality might reasonably be questioned, including but not

limited to, instances in which they have a personal bias or prejudice

concerning the subject matter or a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding

Tex R.App.P. 15a

PA4

disqualification or recusal provisions of the Texas

Constitution, Art. V, Sec. 11, whereas R.15a(2)

undertakes to set forth the standards for recusal or

disqualification of judges pursuant to the Due

Process Clause of the Fourteenth Amendment to the

United States Constitution. Insofar as the said rule

purports to establish less onerous requirements for

an offended party to secure recusal or

disqualification grounded upon the State

Constitution than the requirements imposed in order

to secure recusal or disqualification grounded upon

the Constitution of the United States, said Rule 15a

is unconstitutional as repugnant to the Due Process

and Equal Protection Clauses of the United States

Constitution. If such be necessary, petitioner

challenges the said R.15a on the grounds of invidious

discrimination.

The Texas Supreme Court denied Howell’s motion to recuse

or disqualify. A subsequent motion seeking the recusal or

disqualification only of the chief justice was also denied. The

court then denied Howell’s application for writ of error and

his motion for rehearing.

Howell eventually filed a petition for writ of

certiorari in the United States Supreme Court seeking review

of the Texas Supreme Court’s denial of his motion to recuse

or disqualify. In his petition, Howell alleged that the denial of

PA 5

his motion violated his constitutional right to due process of

law. The Supreme Court denied the petition.

In the present action, which Howell initiated prior

to filing his certiorari petition, Howell asserts two grounds for

relief. First, Howell challenges the constitutionality of Rule

15a of the Texas Rules of Appellate Procedure.

22. The said Rule 15a is unconstitutional as

repugnant to Section 1 of the Fourteenth

Amendment to the Constitution of the United States

in that it purports to establish less onerous

requirements for an offended party to secure the

removal of an appellate judge from his case

grounded upon the provisions of the Texas

Constitution, Article V, Section 11 than when the

removal is sought pursuant to the Constitution and

Laws of the United States.

23. The aforesaid classification that said Rule 15a

attempts to establish is unconstitutional and void.

Inasmuch as Defendant justices attempted to act

pursuant to said classification md purported to act

pursuant to the classification more onerous to

Plaintiff, the acts of the said justices in refusing to

remove themselves from Plaintiff's case was and is

unconstitutional and void. If such be necessary,

Plaintiff pleads the said Rule as containing an

PA 6

invidious classification against the Plaintiff.

Second, Howell asserts that the state court judgment is void

and subject to collateral attack. In substance, his claim is that

the justices’ refusal to recuse themselves was a due process

violation.

25. It has been a well settled principle at least

since Pennoyer v. Neff, 95 U.S. 714 (24 L.Ed. 565] that

any judgment entered in a manner that fails to

comply with fundamental due process principles is

void and may be collaterally attacked in another

court, either state or federal. On account of the lack

of fairness and impartiality, both in fact and in

appearance, all pleaded herein, the judgments and

orders of the Texas Supreme Court were entered in

violation of fundamental due process concepts. The

same are void, or alternatively, are not immune from

collateral attack.

The district court noted that these bases for relict

were the same as those Howell asserted in his state court

action and held that the only permissible means of challenging

the state court disposition in a federal forum was by appeal or

writ of certiorari in the Supreme Court. Accordingly, the court

dismissed for lack of jurisdiction.

PAT

Il.

Federal district courts have no authority to review

the final determinations of a state court. Review of such

determinations is only available in the United States Supreme

Court on direct appeal or by writ of certiorari. See District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103

S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983); Atlantic Coast Line

R.R. Co. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281,

296, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970). This principle

has been well established since 1923, when in Rooker v.

Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362

(1923), the Supreme Court held:

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 [of a

State’s highest court that decided federal

constitutional issues]. To do so would be an exercise

of appellate jurisdiction. The jurisdiction possessed

by the District Courts is strictly original.

Id. at 416, 44 S.Ct. at 150 (citations omitted). More recently,

this court held that a party “ ‘aggrieved by a judicial decision

of a state’s highest court [may not] invest a lower federal court

with... jurisdiction by clothing his or her grievance in the

garb of §1983 and alleging that the decision of the state court

PA8

deprived him or her of constitutionally protected rights or

interests.’ ” Carbonell v. Louisiana Dep’t of Health & Human

Resources, 772 F.2d 185, 188 (Sth Cir. 1985) (quoting Dasher v.

Supreme Court of Texas, 650 F.2d 711, 714-15 (Sth Cir.) rev'd

on other grounds, 658 F.2d 1045 (Sth Cir. 1981)).

All parties to this proceeding agree that Howell

presented the claims he raises in this proceeding to the Texas

Supreme Court and that the court decided those claims

against him. The precedents cited above indicate that

Howell’s only means of challenging the state court’s rulings

was by writ of certiorari in the United States Supreme Court.

Howell did in fact apply for a writ of certiorari alleging a

violation of the due process clause, and that writ was denied.

Howell may not now reopen his challenge in a new

proceeding in federal district court.

Howell, however, asserts that this proceeding

comes within an exception to the line of cases prohibiting

federal district court review of a state court’s final decision. In

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the Supreme Court

recognized a distinction between a challenge in a particular

case to a State court’s interpretation and application of a rule

or statute and a general challenge to the constitutionality of

the rule or statute. Applying that distinction in Feldman, the

Supreme Court held that although the plaintiffs could not

challenge in federal district court the District of Columbia

District Court of Appeals’ final judgment in a bar admission

PAY

case, the plaintiffs could challenge the validity of a state bar

admission rule. See Feldman, 460 U.S. at 483-87, 103 S.Ct. at

1315-17. Howell asserts that he is mounting a general

challenge to Rule 15a of the Texas Rules of Appellate

Procedure and that his claim in federal court comes within the

Feldman exception to the Rooker line of cases. We disagree.

In Feldman the plaintiffs in the federal district

court had not raised the constitutional challenge to the bar

rule in the District of Columbia Court of Appeals.” As the

district court in the present case noted, this case differs in that

Howell did present both his constitutional challenge to Rule

1Sa and his due process concerns to the Texas Supreme

Court. The Feldman exception does not apply when a

constitutional claim has already been decided by the state

court. The court in Feldman noted:

Challenges to the constitutionality of state bar

rules ... do not necessarily require a United States

district court to review a final state-court judgment in

a judicial proceeding. . . . United States district

courts .. . have subject-matter jurisdiction over

general challenges to state bar rules, promulgated by

- Howell suggests that the constitutional challenges were in fact presented to the

District of Columbia Court of Appeals. A close reading of the case, however,

indicates that although counsel for Feldman did raise the constitutional concerns in a

letter to the court, Feldman did not ask the court to invalidate the bar admission rule

in question. See Feldman, 460 U.S. at 465-470, 475, 103 S.Ct. at 1305-08, 1311.

PA 10

State courts in nonjudicial proceedings, which do not

require review of a final state-court judgment in a

particular case.

Feldman, 460 U.S. at 486, 103 S.Ct. at 1316 (emphasis added).

Because Howell did raise his claim in the state court, allowing

a new challenge in federal district court would necessarily

require review of a final state court judgment. The Feldman

analysis does not allow federal court adjudication in this case.

Howell argues that the litigation in state court of a

general constitutional challenge to a state court rule does not

prevent a party from raising the same challenge in a later

federal court proceeding. Howell’s analysis is erroneous, as

the previous discussion indicates. Further, Feldman also

precludes litigation of a constitutional claim that, although

not explicitly raised in a state proceeding, is “inextricably

intertwined” with a state court decision. See Feldman, 460

U.S. at 482 n. 16, 103 S.Ct. at 1314-15 n. 16. Although Howell

frames his claim in this proceeding as a challenge to Rule 15a,

the substance of the claim is that the justices’ interpretation of

the rule and refusal to recuse themselves under it violated

Howell’s due process rights. The due process issue was explicit

in Howell’s motion to recuse and was necessarily rejected by

the justices in denying his motion. Howell’s challenge in this

proceeding thus is inextricably intertwined with the Texas

Supreme Court’s denial of his recusal/disqualification motion,

and this challenge is prohibited. See Phinizy v. Alabama, 847

F.2d 282, 284 (Sth Cir. 1988).

PA 11

As an alternative ground of jurisdiction, Howell

asserts that the district court could adjudicate his claims

because the state court judgment was void for want of

jurisdiction. Howell explained his argument in ‘Plaintiff's

Preliminary Injunction Brief” filed in the district court.

A judgment that fails to comply with the

fundamental requirements of due process is a void

judgment and it may be attacked in any form where

its validity may be drawn in issue. This has been the

rule, at least since Pennoyer v. Neff, 95 U.S. 714 [24

L.Ed. 565] (1986).

It is well established, at least in Texas, that the

judgment of a disqualified judge is wholly void, of no

effect and subject to collateral attack. The attempt by

the state court to withdraw from this rule those

disqualifications arising under the United States

Constitution, as opposed to those arising under the

state constitution, is in violation of the Fourteenth

Amendment.

It follows that the federal court has subject matter

jurisdiction to proceed to the merits of the alleged

disqualification and to enjoin the enforcement of the

judgment in issue until Plaintiff has been afforded

appellate review before a tribunal not disqualified to

hear the appeal.

PA 12

Howcll’s explanation of his jurisdictional theory

clearly indicates that he is merely asserting another variation

of his contention that the Texas Supreme Court justices’

refusal to recuse or disqualify themselves rendered the state

court proceedings violative of the due process clause. Again,

this contention was clearly presented to and rejected by the

justices and then presented to the United States Supreme

Court by petition for writ of certiorari. Howell may not now

renew his challenge in federal district court. To permit such a

challenge would be to permit the type of review the Supreme

Court rejected in Rooker, Atlantic Coast Line, and Feldman.

The cases Howell cites in his brief in support of his

jurisdictional theory are not to the contrary. A majority of

those cases involve proceedings in which the due process

challenge was raised for the first time in a collateral attack on

a judgment entered by a court without jurisdiction over the

person suffering the adverse judgment. The remainder involve

other due process challenges raised for the first time on

collateral attack. Here, Howell was subject to the jurisdiction

of the Texas Supreme Court, he did raise his due process

challenge, and it was resolved against him. He may not again

assert his challenge in this collateral proceeding.

IIT.

Howell and his attorney challenge the district

court’s imposition of attorney’s fees and expenses as Rule 11

PA 13

sanctions. In its order dismissing the case, the district court

gave three justifications for the imposition of sanctions. First,

the court found that by filing a suit over which the court did

not have jurisdiction, “Howell and his attorney violated Rule

11 by filing a suit which does not embody existing legal

principles or a good faith argument for the extension,

modification, or reversal of existing law.” Second, the court

concluded that Howell brought the action for purposes of

harassment and delay. Finally, the court concluded that

Howell’s motion for an injunction against execution of the

state court judgment did not “embody existing legal principles

or a good faith argument for the extension, modification, or

reversal of existing law, at least to the extent that it

contend[ed] that Plaintiff will suffer irreparable harm in the

absence of an injunction.”

We review the imposition of sanctions under an

abuse of discretion standard. See Thomas v. Capital Sec. Serv.,

836 F.2d 866, 871-73 (Sth Cir. 1988) (en banc). The district

court detailed the basis for the imposition of sanctions in the

order of dismissal. Given our conclusion on the jurisdiction

issue and the history of this litigation as set forth in the district

court record, we conclude that the district court did not abuse

its discretion.

AFFIRMED.

, PAI4

Unitrep States District Court, Western District of Texas,

Austin Division; Charles Ben Howell v. The Supreme Court

of Texas, et al.; Civil No. 88-CA-644; November 18, 1988.

[ORDER AND OPINION; UNPUBLISHED]

[Now in, District Judge:]

Before the Court are the following motions:

(1)

(2)

(3)

(4)

(5)

Motion to Dismiss of Defendants’ Supreme

Court of Texas, the Members and Justices

Thereof and the State of Texas, filed August

26, 1988;

Defendants Homecraft Land Development,

Inc.’s and U.S. Home Corporation’s Motion

for Sanctions, filed on September 13, 1988;

Defendant Justice Oscar Mauzy’s Motion for

Rule 11 Sanctions, filed on September 16,

1988;

Defendant Stewart Tithe Company’s Motion

to Dismiss, filed on September 20, 1988;

Motion for Leave to File Defendants

Homecraft Land Development, Inc.’s and

PA 15

U.S. Home Corporation’s Reply to Plaintiff's

and Ken E. Mackey’s Response to Motion for

Sanctions and Plaintiffs Supplemental Brief

in Support of Plaintiffs Response to Motion

to Dismiss, filed on October 7, 1988; and

(6) Defendant Justice Oscar Mauzy’s Motion to

File Original Deposition, filed October 24,

1988.

The Court has reviewed these motions and their

supporting briefs, as well as responses and replies thereto.

The Court has also reviewed the affidavits submitted in

conjunction with the requests for sanctions pursuant to

Federal Rule of Civil Procedure 11.

This suit arises out of a state court action filed on

April 8, 1983, in Dallas County district court, by Charles Ben

Howell against Homecraft Land Development, Inc.

(Homecraft), U.S. Home Corporation (U.S. Home), and

Stewart Title Company. This state court suit (“the Homecraft

suit’) involved Howell’s April 1981 sale of real property to

U.S. Home. The trial court directed a verdict on some issues,

and the jury resolved all other issues in favor of the

defendants. The jury found that Howell brought his Deceptive

Trade Practices Act (DTPA) causes of action in bad faith, and

found attorney’s fees incurred in relation to the DTPA cause

of action to be $75,000.00. The trial court entered judgment

on behalf of the Defendants, and awarded Homecraft and

PA 16

U.S. Home attorney’s fees in the amount of $87,000.00

($75,000.00 for the DTPA causes of action, and $12,000.00 for

a declaratory judgment cause of action.)

On appeal to the Fifth Court of Appeals, the

normally seated judges recused themselves, and a specially

convened pancl affirmed, reducing attorncy’s fees to

$75,000.00. Howell then moved to have all of the Texas

Supreme Court justices recuse themselves. The motion was

denied on February 1, 1988, under Texas Rule of Appellate

Procedure 15a(2). A second motion for recusal or

disqualification was denied on April 20, 1988. On April 27,

1988, the Supreme Court of Texas denied Howell’s

application for writ of error, and on June 1, 1988, denied his

motion for rehearing.

On August 9, 1988, Charles Ben Howell filed his

complaint in federal court pursuant to the Civil Rights Act of

1871, 42 U.S.C. §1983, and the Declaratory Judgments Act, 28

U.S.C. §2201. In his prayer for relief, Howell requests the

Court to: (1) issue a temporary restraining order and a

preliminary injunction forbidding the Dallas County District

Clerk from disbursing the supersedeas bond deposited in

conjunction with the state court suit; (2) hold that Texas Rule

of Appellate Procedure 15a, and the actions taken by the

Texas Supreme Court and its justices are unconstitutional and

void; (3) hold that the Texas Supreme Court’s action taken

upon Plaintiff's motion for recusal or disqualifications and all

subsequent actions of the Texas Supreme Court in the state

PA 17

court suit are unconstitutional and void; (4) require the Texas

Supreme Court and its justices to set aside every order

entered by them in the case; (5) require the Texas Supreme

Court justices to certify to the Governor of Texas that they

are prohibited by the United States Constitution and laws

from sitting in review of Plaintiff's state court case; and

(6) require the Texas Supreme Court justices to facilitate

Plaintiff's application for writ of error in the state court suit

being brought before specially appointed justices for

resolution.

I. MOTIONS TO DISMISS

Defendants contend that this Court lacks

jurisdiction under the Rooker-Feldman doctrine, which

provides that federal district courts cannot sit .a direct review

of state court decisions. Review may only be had in the

United States Supreme Court. See D.C. Court of Appeals v.

Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263

U.S. 413 (1923). The Supreme Court has clearly articulated

this rule: é'

The [Circuit] properly acknowledged that the

United States District Court is without authority to

review final determinations of the [highest court of a

State] in judicial proceedings. Review of such

determinations can be obtained only in this Court.

See U.S.C. §1257. See also Atlantic Coast Line R. Co.

PA 18

v. Locomotive Engineers, 398 U.S. 281, 296, 90 S.Ct.

1739, 1747, 26 L.Ed.2d 234 (1970); Rooker v. Fidelity

Trust Co., 263 U.S. 413, 415, 416, 44. S.Ct. 149, 150,

68 L.Ed. 362 (1923).

Feldman, 460 U.S. at 476. The Court further stated:

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.

Id. at 482 n.16.

Plaintiff acknowledges the Rooker-Feldman

doctrine, but argues that the cause of action raised in this

federal lawsuit are not “inextricably intertwined” with the

State court actions. In support of his argument, Plaintiff cites

Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133, 1143-45 (2d Cir.

1986) (Texaco 1), which he acknowledges was unanimously

reversed by the Supreme Court in Pennzoil Co. v. Texaco, Inc.,

107 S.Ct. 1519 (1987) (Texaco //). Plaintiff notes, and the

Court agrees, that the Supreme Court’s reversal was not based

upon the Circuit’s discussion of the Rooker-Feldman

PA 19

doctrine, but upon application of abstention principles

articulated in Younger v. Harris, 393 U.S. 1013 (1968). In fact,

five of the justices indicated agreement with the Second

Circuit’s determination that the Rooker-Feldman doctrine did

not bar Texaco from proceeding on its claim in federal district

court. See Texaco II, 107 S.Ct. at 1529-30 (Scalia and

O’Connor, J., concurring); id. at 1531 (Brennan, J., concurring

in judgment); id. at 1534-35 (Blackmun, J., concurring in

judgment); id. at 1536 n.3 (Steveus, J., concurring in

judgment).

The relevant portion of the Texaco litigation

began on December 10, 1985, when Texaco filed its complaint

in the Southern District of New York. The complaint alleged

that the Texas judgment and enforcement of the judgment,

through use of Texas lien and supersedeas bond provisions,

would violate Texaco’s rights under the Commerce,

Supremacy, Full Faith and Credit, Due Process, and Equal

Protection Clauses of the United States Constitution. Texaco

also claimed violations of the Civil Rights Act of 1871, 42

U.S.C. §1983, the Securities Exchange Act of 1934, 15 U.S.C.

§78a et seq., and Rules promulgated by the S.E.C. under the

latter act. Texaco I, 784 F.2d at 1136-37.

The Second Circuit determined that Texaco’s due

process and equal protection claims were not barred by the

Rooker-Feldman doctrine. /d. at 1144. The Circuit first

rejected Pennzoil’s contention that Rooker-Feldman should

be read broadly to preclude federal review of issues which a

PA 20

party could have raised in the state court proceeding, but

chose to withhold from the state court. The Circuit noted that

Pennzoil’s theory would read 28 U.S.C. §1257 to severely

impair, and perhaps negate, a litigant’s right to gain relief

under 42 U.S.C. §1983. The theory would thwart the statute’s

intent of permitting the litigant to choose either a federal or

state forum. The Second Circuit noted that Texaco’s due

process and equal protection challenges to the Texas

automatic and mandatory lien and supersedeas bond

provisions had never been presented to or adjudicated by a

state court. The Circuit also heid that these claims were not

“inextricably intertwined” with the barred claims, without

explaining the meaning of “inextricably intertwined.”

The problem with Howell’s assertion of Texaco /

as his “white horse” authority is that his federal case is

factually distinguishable from Texaco’s in a very important

manner: unlike Texaco, Howell chose to raise his equal

protection and due process challenges in the state action. The

Second Circuit ruled that Texaco could pursue its equal

protection and due process arguments in federal court

because they had not been presented to or adjudicated by a

State court, and they were not inextricably intertwined with

the state court claims. That is simply not the case here.

In his Motion for Recusal or Disqualification filed

with the Supreme Court of Texas in Cause No. C-7113,

Charles Ben Howell v. Homecraft Land Development, Inc., et

al, Howell states:

PA 21

This motion its alternatively made pursuant to and

is grounded upon the Due Process Clause of the

Fourteenth Amendment to the U.S. Constitution. . . .

In particular, petitioner relies upon those

constitutional principles declaring that trial before a

fair and impartial tribunal, a tribunal whose members

are not only fair and impartial in fact, but fair and

impartial in appearance, is a cornerstone of Due

Process.

... Insofar as [Rule 15a] purports to establish less

onerous requirements for an offended party to

secure recusal or disqualification grounded upon the

Constitution of the United States, said Rule 15a is

unconstitutional as repugnant to the Due Process

and Equal Protection Clauses of the United States

Constitution. If such be necessary, petitioner

challenges the said R.15a on the grounds of invidious

discrimination.

These are exactly the same challenges to the constitutionality

of Rule 15a which Howell seeks to raise in this federal cause.

Having already raised them in the state case, Howell’s only

PA 22

permissible federal forum is the United States Supreme

Court. This Court is without jurisdiction under the “Rooker-

Feldman” doctrine, and Howell’s assertion that he fits within

the Feldman window is without merit.

Il. RULE 11 MOTIONS

All of the Defendants herein have requested that

Howcll be sanctioned pursuant to Federal Rule of Procedure

11 for having brought this lawsuit. Rule 11 provides, in

pertinent part, as follows:

The signature of an attorney or party [on a pleading,

motion, or other paper] constitutes a certificate by

the signer that the signer has read the pleading,

motion, or other paper; that to the best of the

signer’s knowledge, information, and belief formed

after reasonable inquiry it is well grounded in fact

and is warranted by existing law or good faith

argument for the extension, modification, or reversal

of existing law, and that it is not interposed for any

improper purpose, such as to harass or to cause

unnecessary delay or needless increase in the cost of

litigation. .. . If a pleading, motion, or other paper is

signed in violation of this rule, the court, upon

motion Or upon its own initiative, shall impose upon

the person who signed it, a represented party, or

both, an appropriate sanction, which may include an

PA 23

order to pay the other party or parties the amount of

the reasonable expenses incurred because of the

filing of the pleading, motion, or other paper,

including a reasonable attorney’s fee.

Rule 11 applies to all papers filed in a suit, and

not just to pleadings. Thomas v. Capital Security Services, Inc.,

836 F.2d 866, 870 (Sth Cir. 1988) (en banc). Sanctions are

mandatory if a violation occurs. /d. at 876-78. The Court

maintains broad discretion in selecting the appropriate

sanction, keeping in mind the purposes of Rule 11 and the

policy of imposing the !east severe sanction adequate to such

purposes. /d. at 877-78. The Court is not required to make

specific findings of fact and conclusions of law, but when the

basis and justification for the ruling are not readily discernible

in the record, an adequate explanation is necessary. /d. at 883.

Rule 11 imposes three separate affirmative duties

on the person signing a paper filed with the Court. The

attorney signing certifies:

(1) that [he] has conducted a reasonable inquiry into

the facts-which support the document;

(2) that [he] has conducted a reasonable inquiry into

the law such that the document embodies existing

legal principle or a good faith argument “for the

PA 24

extension, modification, or reversal of existing law;”

and

(3) that the motion is not interposed for purposes of

delay, harassment, or increasing costs of litigation.

Id. at 874. A violation of any of the duties constitutes a

violation of Rule 11.

An attorney who made a reasonable inquiry into

the law should have discovered that this Court is without

jurisdiction to hear Howell’s complaint. The Fifth Circuit

recently indicated the appropriateness of Rule 11 sanctions

being imposed when a suit of this sort is filed without

jurisdiction. Corpus Christi Taxpayer’s Assoc. v. City of Corpus

Christi, No. 87-6141, slip op. at 265-66 (Sth Cir. 1988). The

only case which Howell cites as authority for this Court having

jurisdiction despite the Rooker-Feldman doctrine is one that

is factually distinguishable on a critical point: whether or not

the plaintiff raised in the state court suit the consiitutional

issues which are the heart of his claim in federal court under

42 U.S.C. §1983. Accordingly, the Court finds that Howell and

his attorney violated Rule 11 by filing a suit which does not

embody existing legal principles or a good faith argument for

the extension, modification, or reversal of existing law.

The Court is also concerned with violation of the

third duty of not filing for purposes of delay or harassment. In

his affidavit, Howell argues that each of the Texas Supreme

PA 25

Court justices should have recused himself or herself from

hearing his application for writ of error because of numerous

personal and political run-ins which they have had with

Howell. Howell also states that some justices had a pecuniary

interest in the outcome of the Homecraft case. Among the run-

ins that Howell noted in this affidavit are the following.

In January and February 1986, Howell was a

potential opponent of Justice Oscar Mauzy for Place 1, and

became an actual opponent of James P. Wallace for Place 3.

On February 20, 1986, Justice Wallace filed suit against

Howell in the Supreme Court of Texas, and Howell filed a

suit against Wallace. Howell filed a motion for recusal in both

of these cases, asking all then seated justices to recuse

themselves, for reasons similar to those asserted by Howell in

his Motion for Recusal or Disqualification in the Homecraft

case. The Court, without hearing or opinion, overruled this

motion on March 3, 1986. The Court then held a hearing on

the cases on March 5, 1986, and rendered an opinion on

March 12, 1986, removing Howell from the ballot for Place 3,

and refusing to remove Justice Wallace from the ballot. See

Wallace v. Howell, 707 S.W.2d 876 (Tex. 1986). Howell

remained a candidate for Place 1.

On March 25, 1986, Howell brought suit in the

United States District Court for the Southern District of

Texas, Houston Division, in Cause No. H-86-1230, Howell v.

Supreme Court of Texas, et al., seeking to compel all nine

justices to recuse themselves. The suit challenged the

PA 26

constitutionality of Texas Rule of Appellate Procedure 15a, as

does this suit. Judge Gabrielle McDonald denied Howeil’s

request for temporary injunction after a hearing was held in

April 1986. Howell appealed this denial to the Fifth Circuit,

and the case was set for expedited hearing. The Fifth Circuit

denied Howell’s request for an injunction pending appeal,

Stating that “[w]hile the district court may have had

jurisdiction, at least that part of the claim asserting that the

statute ... is unconstitutional, Judge Charles Ben Howell has

not shown the likelihood of success on this claim or on the

other constitutional issues indispensable to an injunction

pending appeal.”

At the hearing before the Texas Supreme Court,

Howell’s attorney argued that the challenge to Rule 15a and

to the justices’ refusal to recuse themselves was “of

importance, not only to the case in hand but to the law in

general, there being no Texas case and few cases nationally

ruling upon the grounds for disqualification or recusal of an

appellate court or its members on grounds of bias and

prejudice or the appearance thereof.” Nonetheless, when

Howell’s appeal to the Fifth Circuit was not decided before

May 3, 1986, the date of the Republican primary election,

Plaintiff took a non-suit because he believed the issue, to be

moot. He won the Republican primary, and became the

Republican candidate for Place 1. Howell chose to use his

available resources to campaign against Justice Mauzy, the

Democratic candidate for Place 1, rather than to pursue the

Fifth Circuit appeal.

PA 27

In December 1987, Howell announced his

intention to oppose Justice Raul Gonzalez in the upcoming

election. On January 4, 1988, Howell filed for Justice

Gonzalez’ seat after considering whether to run for Chief

Justice. At the time of the ruling on the application for writ of

error in the Homecraft case, Justice Gonzalez was the

Democratic candidate for Place 3, and Howell was the

Republican candidate. The election was held on November 8,

1988.

Howell was openly critical of the justices’ practices

in accepting campaign contributions, and of the Texas

Supreme Court’s refusal of the application for writ of error in

the Texaco v. Pennzoil litigation. In addition, Howell has

applauded the Tejeda Committee’s investigation into alleged

misconduct by some of the justices.

Howell has sued Justice Oscar Mauzy and his wife

for allegedly violating Texas campaign contribution and

expense disclosure laws. This case was ongoing when the

Texas Supreme Court considered Howell’s application for

writ of error in the Homecraft litigation.

Finally, Howell acknowledges that the bad faith

verdict against him in the Homecraft litigation was capitalized

upon by Justice Mauzy in the 1986 campaign. He

acknowledges that the bad faith verdict will likely be an issue

in the 1988 campaign, unless it is set aside by the Supreme

PA 28

Court, and that once it receives the imprimatur of the

Supreme Court, the bad faith verdict will be an “even more

lethal campaign tool.”

It is abundantly clear to the Court that Howell

filed this case to harass the incumbent Texas Supreme Court

justices in the three months immediately preceding the

November 8, 1988 election in which he sought to become a

Texas Supreme Court justice. Howell has a history of filing

lawsuits against Texas Supreme Court justices, and then

moving for the justices’ recusal when a case in which he is a

litigant reaches the Texas Supreme Court. He also has a

history of filing actions in federal district court challenging the

constitutionality of Texas Rule of Appellate Procedure 15a,

when the justices refuse to recuse themselves. If Howell had a

sincere interest in challenging the constitutionality of the

recusal statute and in establishing law on the grounds for

recusal or disqualification of an appellate judge on the

grounds of bias and prejudice, then the Court believes that he

would have pursued the previous litigation in the Fifth Circuit.

Instead, Howell chose to voluntarily dismiss the appeal when

it was not resolved before the Republican primary.

Furthermore, the Court views Howell’s request for

a temporary restraining order and for a preliminary injunction

as a transparent effort to further delay U.S. Home’s and

Homecraft’s collection of the state judgment, for both

political and personal reasons. Howell admitted that he knew

that once the judgment against him for bringing a DTPA

PA 29

action in bad faith received the imprimatur of the Texas

Supreme Court, it would become an even more lethal

campaign tool. The Court concludes that Rule 11 sanctions

against Howell and his attorney are appropriate for having

brought this action for purposes of harassment and delay.

The Court is of the further opinion that Rule 11

sanctions against Howell and his attorney are appropriate for

the August 25, 1988 filing of Plaintiff's Preliminary Injunction

Brief. This filing does not embody existing legal principles or

a good faith argument for the extension, modification, or

reversal of existing law, at least to the extent that it contends

that plaintiffs will suffer irreparable harm in the absence of an

injunction.

Rule 11 explicitly provides that a court may order

a party who violates the rule to pay his opponent reasonable

expenses and attorney’s fees caused by the violation. Thomas,

836 F.2d at 878-79. In considering the reasonableness of

expenses and attorney’s fees, the Court should examine

whether they could have been avoided or were self-imposed,

and whether the party seeking the sanctions gave prompt

notice to the Court and the opposing party of the intent to

seek Rule 11 sanctions. /d.

Defendants sought sanctions under Rule 11

promptly upon Howell’s filing of this suit. Pursuant to the

Court’s request, each of the Defendant’s attorneys have

submitted affidavits reflecting the attorney’s fees and expenses

eee

PA 30

incurred by their clients in this federal action. They have

itemized the costs as follows:

Defendant Attorney Fees Expenses

The Supreme Court

of Texas, the

Justices thereof,

and the Attorney

Gencral of Texas Gary Biedsoc $1,575.00 -0-

Homecraft Land Robert T. Mowrey $5,300.00 $554.58

Development, Inc., Jennifer B. Altabef $6,734.00 ~-)-

and U.S. Home

Corporation

Stewart Title

Company Edmund R. Wood $4,125.00 $394.09

Frank Oliver 175.00 9.29

Jeff A. Armstrong 625.00 -)-

Justice Oscar Mauzy David R. Richards $3,275.00 $422.10

The court is of the opinion that these attorney's fees and

expenses are reasonable, could not have been avoided, and

were not self-imposed. Accordingly, the Court will require

Howell and his attorney, Ken E. Mackey, to pay Defendants

these attorney's fees and expenses as a sanction pursuant to

Federal Rule of Civil Procedure 11.

PA 31

The Court is of the opinion that a lesser sanction

would not have the desired effect. The Court finds especially

disconcerting that this is the second time in the Homecraft

litigation alone that a fact finder has found Howell to be

acting improperly: first, when $75,000 in attorney's fees were

assessed against him by the state court for bringing his DTPA

cause of action in bad faith, and second, this Court’s

assessment of attorney’s fees and expenses, for filing a case

over which the Court clearly does not have jurisdiction, and

that it is clearly brought to harass and delay.

IT IS HEREBY ORDERED that the Motion for

Leave to File Defendants Homecraft Land Development

Inc.’s and U.S. Home Corporation’s Reply to Plaintiff's and

Ken E. Mackey’s Response to Motion for Sanctions and

Plaintiff's Supplemental Brief in Support of Plaintiff's

Response to Motion to Dismiss is GRANTED.

IT IS FURTHER ORDERED that Defendant

Justice Oscar Mauzy’s Motion to File Original Deposition is

GRANTED.

IT IS FURTHER ORDERED that the Motion to

Dismiss of Defendants Supreme Court of Texas, the Members

and Justice Thercof and the State of Texas is GRANTED;

that Defendant Stewart Title Company’s Motion to Dismiss is

GRANTED); and that the above numbered and styled cause of

action is DISMISSED for lack of jurisdiction.

PA 32

IT IS FURTHER ORDERED that Defendants

Homecraft Land Development, Inc.’s and U.S. Home

Corporation’s Motion for Sanctions is GRANTED; and that

Plaintiff, Charles Ben Howell, and his attorney, Ken E.

Mackcy, shall pay Homecraft Land Development, Inc., and

U.S. Home Corporation $12,034.00 in attorney’s fees and

$554.58 in expenses as sanctions pursuant to Federal Rule of

Civil Procedure 11.

IT IS FURTHER ORDERED that Defendant

Justice Oscar Mauzy’s Motion for Rule 11 Sanctions is

GRANTED; and that Plaintiff, Charles Ben Howell, and his

attorncy, Ken E. Mackey, shall pay Justice Oscar Mauzy

$3,697.10 in attorney’s fees and expenses as sanctions

pursuant to Federal Rule of Civil Procedure 11.

IT IS FURTHER ORDERED that Plaintiff,

Charics Ben Howcll, and his attorney, Ken E. Mackey, shall

pay Defendant Stewart Title Company $5,328.38 in attorney's

fees and expenses as sanctions pursuant to Federal Rule of

Civil Procedure 11.

IT IS FURTHER ORDERED that Plaintiff,

Charics Ben Howell, and his attorney, Ken E. Mackey, shall

pay Defendants the Supreme Court of Texas, the justices

thercof, and the Attorney General of Texas $1,575.00 in

attorncy’s fees as sanctions pursuant to Federal Rule of Civil

Procedure 11.

PA 33

(R.6-21]

THe Supreme Court or Texas; Charles Ben Howell v.

Homecraft Land Development, Inc., et al.; No. C-7113; April

27, 1988.

[Notation re: Decision of the

Texas Supreme Court]

[NOTE: The federal questions raised by the

petition relate to the attempts by petitioner to disqualify

members of the Texas Supreme Court from hearing an

application for writ of error to that court. That court delivered

no opinion or any other explanation, written or oral,

concerning the matters that it ruled upon. The relevant orders

of that court a1 2 reproduced infra. |

Unrrep States Court oF ApPEALS, FirrH Circuit; Charles Ben

Howell, et al. v. The Supreme Court of Texas, et al.; No. 89-

1032, Summary Calendar; October 11, 1989.

JUDGMENT

Before Reav_ey, Kinc and Jounson, Circuit Judges.

This cause came on to be heard on the record on

PA 34

appeal and was taken under submission on the briefs on file.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the judgment of

the District Court in this cause is affirmed.

IT IS FURTHER ORDERED that plaintiff-

appellant and appellant pay to defendants-appellees the costs

on appeal, to be taxed by the Clerk of this Court.

Unitep States Court OF AppEaLs, Firty Circuit; Charles Ben

Howell, ct al. v. The Supreme Court of Texas, et al.; No. 89-

1032, Summary Calendar; November 8, 1989.

ON PETITION FOR REHEARING

Before REaviey, Kinc and Jounnson, Circuit Judges.

PER CURIAM:

It is ordered that the petition for rehearing filed in

the above entitled and numbered cause be and the same is

hereby denied.

PA 35

UniteD States District Court, WESTERN District OF TEXAS.

Austin Division; Charles Ben Howell v. The Supreme Court of

Texas, et al.; Civil No. 88-CA-644; November 18, 1988.

JUDGMENT

[Now tn, District Judge:]

This action came on for consideration before the

Court, and the issues having been duly considered;

IT IS ORDERED that the Motion to Dismiss of

Defendants Supreme Court of Texas; the Members and

Justices Thereof and the State of Texas is GRANTED; that

Defendant Stewart Title Company’s Motion to Dismiss is

GRANTED; and that the above numbered and styled cause of

action is DISMISSED for lack of jurisdiction.

IT IS FURTHER ORDERED that Defendants

Homecraft Land Development, Inc.’s and U.S. Home

Corporation’s Motion for Sanctions is GRANTED; and that

Plaintiff, Charles Ben Howell, and his attorney, Ken E.

Mackey, shall pay Homecraft Land Development, Inc., and

U.S. Home Corporation $12,034.00 in attorney’s fees and

$554.58 in expenses as sanctions pursuant to Federal Rule of

Civil Procedure 11.

PA 36

IT IS FURTHER ORDERED that Defendant

Justice Oscar Mauzy’s Motion for Rule 11 Sanctions is

GRANTED; and that Plaintiff, Charles Ben Howell, and his

attorney, Ken E. Mackey, shall pay Justice Oscar Mauzy

$3,697.10 in attorney’s fees and expenses as sanctions

pursuant to Federal Rule of Civil Procedure 11.

IT IS FURTHER ORDERED that Plaintiff,

Charlies Ben Howell, and his attorney, Ken E. Mackey, shall

pay Defendant Stewart Title Company $5,328.38 in attorney’s

fees and cxpenses as sanctions pursuant to Federal Rule of

Civil Procedure 11.

IT IS FURTHER ORDERED that Plaintiff,

Charles Ben Howell, and his attorney, Ken E. Mackey, shall

pay Defendants the Supreme Court of Texas, the justices

thereof, and the Attorney General of Texas $1,575.00 in

attorncy’s fees as sanctions pursuant to Federal Rule of Civil

Procedure 11.

[R.3-4]

PA 37

[Orders of the Texas Supreme Court]

SUPREME CourT OF TEXAS, CHARLES BEN HOWELL, PETITIONER, V

HoOMECRAFT LAND DEVELOPMENT, INC. ET AL., RESPONDENTS, No. C-

7113.

February 1, 1988. Petitioner’s motion for recusal or

disqualification, filed herein on January 22, 1988, together

with petitioner’s motion for additional time to prepare

arguments in support of Application for Writ of Error filed

herein on January 25, 1988, in the above styled and numbered

case having been duly considered, it is ordered that said

motion for recusal, after recusal statements certifying the

recusal to the Supreme Court were filed on February 1, 1988

by Chief Justice Phillips and Justices Spears, Ray, Wallace,

Robertson, Kilgarlin, Gonzalez and Mauzy, be, and hereby is,

overruled (as to all Justices except Justice Culver), and that

the motion for additional time to prepare argument in

support of application be, and hereby is, granted with the

following notation: See Rule 131 (i), Texas Rules of Appellate

Procedure.

[R.745]

PA 38

SUPREME CourRT OF TEXAS, CHARLES BEN HOWELL V. HOMECRAFT

Lanp DeveLopmenrt, INc. ET AL, No. C-7113; April 20, 1988.

April 20, 1988. Petitioner’s second motion for recusal or

disqualification of The Honorable Thomas R. Phillips filed

herein on April 13, 1988 having been duly considered, it is

ordered that said second motion be, and hereby is, overruled.

[R.744]

SUPREME CouRT OF TEXAS, CHARLES BEN HOWELL V. HOMECRAFI

Lanp DEVELOPMENT, INC. ET AL, No. C-7113; April 27, 1988.

April 27, 1988. Application of petitioner for writ of error

to the Court of Appeals for the Fifth District, together with

respondents’, Homecraft Land Development, Inc. and U. S.

Home Corporation, motion to dismiss appeal or, in the

alternative, for sanctions, and petitioner’s motion to strike

respondents’ ‘“‘amended brief,”’ and petitioner’s motion for

leave to file reprinted copy of petitioner’s reply brief, and

petitioner’s motions for clarification of order overruling

petitioner’s motions for the recusal or disqualification of The

Honorable Franklin S. Spears, The Honorable C. L. Ray, The

Honorable James P. Wallace, The Honorable Ted Z.

Robertson, The Honorable William W. Kilgarlin, The

Honorable Raul A. Gonzalez, The Honorable Oscar Mauzy,

and The Honorable Barbara Culver with alternative motions

PA 39

for disclosure and for reconsideration, having been duly

considered, it is ordered that respondents’ motion to dismiss

appeal or, in the alternative, for sanctions be overruled and

further that petitioner’s motion to strike respondents’

“amended brief,” and petitioner’s motion for leave to file

reprinted copy of petitioner’s reply brief, and petitioner’s

motions for clarification be, and hereby are, overruled, and

the Court having determined that the application presents no

error of law which is of such importance to the jurisprudence

of the State as to require correction, or reversal of the

judgment of the Court of Appeals, it is ordered that said

application be, and hereby is, denied.

It is ordered that the Court of Appeals for the Fifth

District release its unpublished opinion of October 13, 1987,

in its case No. 05-86-01164-CV entitled CHARLES BEN

HOWELL v. HOMECRAFT LAND DEVELOPMENT,

INC. ET AL. for publication.

It is further ordered that applicant, Charles Ben Howell,

and sureties, Tom S. McCorkle and Shelley Garrett, pay all

costs incurred on this application.

PA 40

SUPREME CouRT OF TEXAS, CHARLES BEN HOWELL V. HOMECRAFT

LAND DEVELOPMENT, INC ETAL, No. C-7113; June 1, 1988.

June 1, 1988. Petitioner’s motion for rehearing of

application for writ of error, together with petitioner's

motions for clarification of orders of February 1, 1988 and

April 20, 1988 overruling petitioner’s original and second

motions for the recusal or disqualification of The Honorable

Thomas R. Phillips with alternative motions for disclosure

and for reconsideration, having been duly considered, it is

ordered that the motions for clarification of orders be

overruled, and that said motion for rehearing be, and hereby

is, overruled.

[R.742]

SUPREME COURT OF TEXAS, CHARLES BEN HOWELL, PETITIONER, V

HoMECRAFT LAND DEVELOPMENT, INC., ef al., RESPONDENTS, No. C-

7113.

[Statements by the Justices

Of the Texas Supreme Court]

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

PA 41

/s/Thomas R. Phillips

Chief Justice

[R.765]

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

/s/Franklin S. Spears

Justice

[R.766]

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

/s/C. L. Ray

Justice

(R.767]

PA 42

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

/s/James P. Wallace

Justice

(R.768]

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

/s/Ted Z. Robertson

Justice

[R.769]

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

/s/William W. Kilgarlin

Justice

[R.770]

PA 43

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

/s/Raul A. Gonzalez

Justice

(R.771]

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

/s/Oscar H. Mauzy

Justice

[R.772]

February 1, 1988. I have received a copy of the motion for

recusal or disqualification filed in this case. I decline to recuse

myself and certify the matter to the entire court, pursuant to

Rule 15, Texas Rules of Appellate Procedure.

/s/Barbara G. Culver

Justice

[R.773]

PA 44

{Extracts from Pleadings of Petitioner}

SUPREME CourT OF TEXAS, CHARLES BEN HOWELL, PETITIONER, V.

Homecrarr LAND DEVELOPMENT, INC., ef al., RESPONDENTS, No. C-

7113

[Petitioner’s] Motion for Recusal

Or Disqualification

[filed 22 JA 88]

Comes now, Charles Ben Howell, Petitioner and moves

for the disqualification or recusal from this case of the

Honorable Thomas R. Phillips, the Honorable Franklin S.

Spears, the Honorable C. L. Ray, the Honorable James P.

Wallace, the Honorable Ted Z. Robertson, the Honorable

William W. Kilgarlin, the Honorable Raul A. Gonzalez, the

Honorable Oscar Mauzy and the Honorable Barbara Culver.

This motion is addressed to the said Honorable Justices, both

individually and collectively. In support of his motion,

petitioner would show the following:

This motion is based upon the affidavit of Charles Ben

Howell, annexed hereto and incorporated herein by reference.

Such affidavit states with particularity the grounds why each of

the aforesaid justices of this court should not sit in this case.

Specifically, with respect to each and everyone of the

aforenamed individual justices of the Supreme Court, the

affidavit states facts from which it may fairly and reasonably

be inferred that each of the aforenamed justices harbors a

PA 45

personal bias or prejudice toward this petitioner.

Alternatively, the facts set forth in the annexed affidavit

present the fair and reasonable inference that the impartiality

of each of the above-named justices might reasonably be

subject to question. Based thereon, petitioner alleges that

each of the aforenamed justices is disqualified to preside

herein or, alternatively, each of the aforenamed justices is

subject to recusal herein.

This motion is grounded upon and is made pursuant to

the provisions of Rule 15a(2) of the Texas Rules of Appellate

Procedure providing:

Appellate judges should recuse themselves in

proceedings in which their impartiality might

reasonably be questioned, including but not

limited to, instances in which they have a

personal bias or prejudice concerning the

subject matter or a party, or a personal

knowledge of disputed evidentiary facts

concerning the proceeding.

This motion is alternatively made pursuant to and is

grounded upon the Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution and upon the provisions

of the Constitution of the State of Texas guaranteeing Due

Process of Law and Due Course of Law. In particular, peti-

tioner relies upon those constitutional principles declaring

that trial before a fair and impartial tribunal, a tribunal whose

PA 46

members are not only fair and impartial in fact, but fair and

impartial in appearance, is a cornerstone of Due Process.

Petitioner further moves that the court apply to this case

the mandatory disqualification standards to which R.15a(1) of

the Texas Rules of Appellate Procedure. That is to say,

petitioner moves that this court hold it to be mandatory that a

judge or justice withdraw from the case wherever it may fairly

and reasonably be inferred that such judge or justice harbors a

personal bias or prejudice toward a party and wherever the

fair and reasonable inference is presented that the impartiality

of such judge or justice might reasonably be subject to

question.

In this connection, petitioner would show that R.15a(1)

sets forth the standards for the withdrawal from a case of a

judge or justice pursuant to the disqualification or recusal

provisions of the Texas Constitution, Art. V, sec. 11, whereas

R.15a(2) undertakes to set forth the standards for recusal or

disqualification of judges pursuant to the Due Process Clause

of the Fourteenth Amendment to the United States

Constitution. Insofar as the said rule purports to establish less

onerous requirements for an offended party to secure recusal

or disqualification grounded upon the State Constitution than

the requirements imposed in order to secure recusal or

disqualification grounded upon the Constitution of the United

States, said Rule 15a is unconstitutional as repugnant to the

Due Process and Equal Protection Clauses of the United

States Constitution. If such be necessary, petitioner challenges

PA 47

the said R.15a on the grounds of invidious discrimination.

Petitioner moves and directs the Clerk of the Supreme

Court to present this motion to each of the above named

justices ten days after the filing hereof so that each such

justice may decide either to voluntary disqualify or recuse or

to certify the matter to the entire court.

Should any of the justices named herein decline to

withdraw from the case, petitioner moves and requests that

each said Honorable Justice so declining prepare and file with

the court, prior to en banc hearing hereon, a statement in

writing responding to and answering the fact allegations

contained in this motion and in petitioner’s affidavit. This

request may be satisfied through a short statement to the

effect that the facts stated by petitioner with respect to the

statement-maker is substantially correct. Any error or

omission by petitioner should, of course, be pointed out.

Petitioner waives any requirement that statements by the

individual justices be verified. If the said Honorable Justices

or any of them should either decline to prepare a statement or

if the statement should be manifestly insufficient, then the

court when it convenes itself en banc should consider the

allegations and conclusions of this petitioner herein contained

to be fully established and petitioner so moves.

Copies of this motion are being served on all other

parties or their counsel of record as shown by the certificate

PA 48

hereto and said parties and their counsel are hereby provided

with notice that movant expects this motion to be presented to

each of the justices mentioned herein ten days aiter the filing

of this motion unless otherwise ordered by any justice

aforenamed or by the court. Any other party may file with the

clerk of the court an opposing or concurring statement at any

time before the motion is decided.

Wherefore, PREMISES CONSIDERED, petitioner asks

relief as follows:

(1) That the above-named Chief Justice and Justices

Spears, Ray, Wallace, Robertson, Kilgarlin, Gonzalez, Mauzy

and Culver and cach of them proceed to voluntarily disqualify,

recuse or withdraw herefrom or that they respectively certify

their individual unwillingness to do so to the court en banc;

(2) That should they or any of them decline to recuse,

then that each said justice so declining proceed to file with the

court a written statement responding to the factual allegations

of this verified motion;

(3) That this motion be heard en banc deciding the

recusal of each justice, one at a time, so that the particular

justice being considered cach time shall not sit en banc to

consider the motion as it directly affects him;

(4) That each of the aforesaid Honorable Justices be

recused or disqualified from further service herein;

PA 49

(5) That the fact of disqualification or recusal be

certified to the Governor of the State, together with a request

that he immediately commission the requisite number of

persons, learned in the law and not possessed of the

impediments or disqualifications outlined herein, for the trial

and determination of this cause.

[R.694-9]

SUPREME CourRT OF TEXAS, CHARLES BEN HOWELL, PETITIONER, V.

HOMECRAFT LAND DEVELOPMENT, INC., ef al., RESPONDENTS, No. C-

7113.

[PETITIONER’S] AFFIDAVIT IN SUPPORT OF MOTION

FOR RECUSAL OR DISQUALIFICATION

[Filed 22 JA 88]

I am 62 years of age. I have been for the major part of

my adult life involved in Republican politics. I have

continuously been involved in Republican party affairs and

have worked for, contributed to and publicly supported the

candidates of the Republican party. Including the 1988

election campaign which is just now getting under way, I have

been a candidate for office for the last eleven successive

elections. Every two years commencing in 1968, I have filed in

the Republican primary as a candidate for judicial office. My

campaigns were always contested and in most instances, I ran

against a Democratic incumbent. My first six campaigns were

PA 50

unsuccessful. In 1980, I was first elected as a district judge in

Dallas County, ousting a Democratic incumbent. In 1982, I

was re-clected, defeating a Democratic challenger. In 1984, I

was elected as Justice of the Court of Appeals for the 5th

District defeating a well-entrenched Democratic incumbent.

In my campaign, I have avoided all types of false

charges. I have never-ihe-less been a hard hitter and have

leveled numerous charges against my Democratic opponents.

I have come to be known as a controversial candidate; some

have called me a maverick. My campaigns, particularly in

recent years have become lightning rod campaigns where the

entire Democratic slate and the Democratic party organiza-

tion in general have targeted me as the judicial candidate that

they were most anxious to beat. Regardless of such facts, I

have been elected and re-elected. Because of the foregoing, I

have accumulated a large number of critics and detractors,

within the Democratic party and within the liberal press.

On January 23, 1986, I formally announced, filed the

official application for place on ballot and paid the filing fee

as a candidate in the Republican Primary for the office of

Justice of the Supreme Court, Place 1. My probable

Democratic opponent at that time was the Honorable Oscar

Mauzy. Prior to the filing deadline of February 3, 1986, Judge

Nathan Hecht filed for the same office in the Republican

Primary and I thereby became involved in a contested

primary. Primarily because of a shortage of funds and

resources, I desired to avoid the necessity of a primary

PA 51

election contest. I consulted with the State Republican

Chairman, the Honorable George W. Strake, Jr. about the

problem on February 3, 1986, immediately prior to the dead-

line to file for office. With his consent, I withdrew as a

candidate for Justice of the Supreme Court, Place 1 and filed

for office as Justice of the Supreme Court, Place 3. In such

position, my probable Democratic opponent was the

Honorable James P. Wallace, a respondent to my motion for

recusal. He had no other opponent, Republican or Democrat.

On February 20, 1986, Judge Wallace filed a suit against

me as an original mandamus action in the Supreme Court of

Texas, No. C-5034. I counter-claimed filing a suit to remove

Judge Wallace from the ballot, No. C-5057, filed on February

27, 1986.

Believing then as I now believe, that I would be unable

to obtain a fair and impartial hearing before the Texas

Supreme Court, I filed on February 27, 1986 a motion for

recusal in both of the foresaid pending causes Nos. C-5034

and C-5057 challenging the following named justices, the

Honorable John L. Hill, Jr., Chief Justice, the Honorable

Sears McGee, the Honorable Robert M. Campbell, the

Honorable Franklin S. Spears, the Honorable C. L. Ray, the

Honorable James P. Wallace, the Honorable Ted Z.

Robertson, the Honorable William W. Kilgarlin and the

Honorable Raul A. Gonzalez. The said motion was overruled

by the court on March 3, 1986. The court failed to hold a

hearing of any kind and failed to render an opinion of any

PA 52

kind. Even though requested to do so, none of the challenged

judges issued any kind of statement responding to plaintiff's

specific reasons, given under oath, for the recusal or disqual-

ification of each said justice.

The combined causes, Nos. C-5034 and C-5057 were

argued before the court on two days’ notice, said hearing

occurring on March 5S, 1986. My counsel, Mr. Howard D. Patti-

son, commenced his argument by discussing plaintiff's motion

for recusal and disqualification. Members of the court,

particularly Justice Kilgarlin and Justice Spears began

lecturing my attorney to the effect that such motion had

already been overruled and that counsel should proceed to

the merits. My counsel argued that the matter was of impor-

tance, not only to the case in hand but to the law in general,

there being no Texas case and few cases nationally ruling

upon the grounds for disqualification or recusal of an

appellate court or its members on grounds of bias and preju-

dice or the appearance thereof. My counsel insisted that such

aspect of the case should be fully heard and that the court

should deliver an opinion thereon. Within the first five

minutes of the allotted forty-minute argument time (20

minutes for each case), my attorney was ordered from the

bench to discontinue his presentation upon the motion for

recusal or disqualification or he would be required to dis-

continue his argument altogether and take his seat.

I was present and heard everything that transpired.

Several representatives of the news media were present.

PA 53

Afterwards, a news dispatch from UPI stated that the Honor-

able Chief Justice Hill “bristled Wednesday when an attorney

requested that the entire court recuse itself” on the

proposition that “said Democrat-dominated court would give

the appearance of bias if it heard the case involving Howell, a

Republican.” The Honorable Chief Justice was further quoted

as declaring:

We are a legal court, a law court. We do not

make our decisions based on politics, .. . we

make ruiings based on the law. Politics plays

no part in our decision making.

On March 12, 1986, the court issued an opinion

removing me from the Place 3 ballot and refusing to remove

my Democratic opponent, Justice Wallace from the ballot.

See Wallace v. Howell, 707 S.W.2d 876 (Tex.1986). The

opinion was released at 9:00 a.m. Anticipating the court’s

ruling, I had previously notified the capital press corps that I

would hold a press conference on the front steps of the

Supreme Court Building at 9:00 a.m. on that date. The news

conference was attended by reporters from newspapers, radio

and television. In good faith, I criticized the Supreme Court

and the above-named members for the issuance of a blatantly

political decision. In my remarks and in my prepared news

release, I criticized the court and each of its members named

above for refusing to hear argument upon the recusal motion

and refusing to address the disqualification issue in its

Opinion. I stated that the issue would not go away simply

PA 54

because the court chose to pretend that the issue was not

there.

At the same time, a committee of the state legislature,

known as the Tejeda Committee was conducting investi-

gations into allegations of possible misconduct on the part of

members of the Supreme Court and its proceedings were

widely reported by the news media. Shortly after March 12,

the Honorable Chief Justice testified before the committee.

According to published reports, he accused me or inferred

that I had infiltrated the court through unnamed members of

its staff and that I had thereby obtained a leak or advance

information regarding the court’s decision in the Judge

Wallace litigation. Apparently, he based his charges upon the

fact that I had scheduled a news conference in advance before

knowing of the court’s decision and that I had distributed at

that conference and immediately thereafter, about 30 copies

of a previously-prepared news release criticizing the court’s

decision. On information and belief, a copy of that news

release was exhibited to the Chief Justice by some recipient

thereof, probably for the purpose of obtaining his comments.

In all likelthood, copies of the news release were circulated to

all members of the court and discussions were had among the

justices concerning my news release and my news conference,

which discussions included comment on the fact that my news

conference was obviously pre-arranged, and prepared in

advance and purposely scheduled to occur simultaneously

with the issuance of the court’s decision.

——s

Rie

PA 55

Upon being advised of the Chief Justice’s testimony

before the Tejeda Committee, I immediately contacted the

news media and denied the charges. I stated that it was

ridiculous to assume that this Republican judge residing in a

city 200 miles distant from the court had any secret means to

invade the deliberations of an all Democrat court. I stated

that my news conference and news release were pre-arranged

because the political bias and the arrogant attitude of these

justices was completely transparent, the result of the case

being obvious from the outset to any intelligent observer of

the law and the political scene.

On March 25, 1986, I brought suit seeking relief from

the action of the Texas Supreme Court in the United States

District Court for the Southern District of Texas at Houston,

Howell v. The Supreme Court of Texas, et al, Cause No. H-86-

1230. All nine members of the Supreme Court were named as

parties to the action and were served with summons, my

complaint alleging:

Inasmuch as_ plaintiff attacks the

interpretation [of the Texas Election Code]

promulgated by the Supreme Court of Texas,

the Supreme Court and its justices are made

parties hereto .. . in accordance with the

Heffner v. Alexander, 779 F.2d 277 (Fifth

Circuit 1985).

Copies of my complaint were officially served upon each

PA 56

member of the Supreme Court and were read by each of

them. In the complaint, I made several allegations that the

defendant members of the court would in all likelihood con-

sider as derogatory and disparaging. The case was actively

followed by the news media and I was interviewed regarding

the case on several occasions. I was quoted as continuing to

criticize the Supreme Court for entering a decision which I

considered to be politically motivated. A temporary injunction

hearing was held in the federal court during April, 1986. All

nine justices of the Supreme Court appeared by counsel. The

Honorable James P. Wallace was placed under subpoena by

my attorney and he was forced to appear and testify through

adversary examination. Through such examination, my

attorney established that Justice Wallace had elected to file a

case before a Supreme Court composed of his political allies,

his friends and his colleagues, with whom he had a continuous

daily working relationship, instead of filing the case with a

lower court which had ample jurisdiction to consider his

claims.

The federal district court denied relief on jurisdictional

grounds unrelated to the merits and my attorneys took an

appeal to the United States Court of Appeals for the Sth

Circuit. Through my attorneys, I moved for immediate

hearing in that court and the court, finding my case to be

meritorious in nature, ordered the same to be heard about six

weeks hence. In the meantime, I won the primary election

contest for Place 1 against Judge Nathan Hecht, an election

contest that I had sought to avoid and which I could not

PA 57

afford to run. I then concluded that it was my best recourse

not to further deplete my resources with litigation and to

campaign for election to Place 1 on the Supreme Court as

ordered by the decision of March 12. I therefore withdrew my

Federal appeal and it was dismissed.

Because of the action of the Supreme Court, I was

forced to deplete my resources in litigation and in conducting

an unwanted Republican primary election contest with Judge

Nathan Hecht. I was also forced to run against then State

Senator Oscar Mauzy, the Democratic nominee for Place 1

rather than against Justice Wallace. Senator Mauzy, through

long service in the legisiature, was far better known to the

voting public than Justice Wallace and had considerably more

political campaign experience. He had far more funds to

spend than Justice Wallace. Even so, I managed to obtain

almost 45% of the vote against Senator Mauzy. By reason of

his lawsuit, Justice Wallace was re-elected by default with no

opposition either at the primary or the general election. If the

money and resources thai I had been forced to squander in

the Republican primary and in the Judge Wallace litigation

[had] been available to me during the general election and

had I been able to campaign against the lesser known

Democratic candidate with less funding and less campaign

experience, I believe that I could have won election to the

Texas Supreme Court in 1986. By and through their rulings in

Justice Wallace’s case, the respondent Democratic members

of the Texas Supreme Court managed to maintain 100%

Democratic control over that court.

PA 58

The election campaign lasted until November, 1986. I

traveled throughout the state. I talked to many groups and

organizations. I was interviewed by numerous reporters for

newspapers, radio and television broadcasters. I continually

criticized the fact that Texas had an all-Democrat Supreme

Court. I pointed to the Wallace case and the refusal of the

justices or any of them to disqualify as evidence that the court

was politically biased and politically motivated. I charged that

such arrogance was the direct result of a century of virtually

absolute dominance of the court by a single political party; to-

wit, the Democratic Party. My remarks were such that each

incumbent Democrat on the court was likely to be personally

offended thereby. I have reason to believe that each member

of the court followed my campaign and was well aware of my

campaign statements and campaign tactics.

During the course of my campaign, the hearings of the

Tejeda Committee continued. According to published reports,

the activities of that committee concentrated upon the

activities of the Honorable C. L. Ray and the Honorable

William Kilgarlin. I have numerously commented on the

Tejeda hearings and the conduct of Justices Ray and Kilgarlin

as Outlined in published reports of testimony before that com-

mittee. I incorporated newspaper clippings concerning the

activities of the Tejeda Committees into my campaign litera-

ture and distributed a large number of copies thereof. In my

appearances before the public and before the media, I numer-

ously and repeatedly discussed the Tejeda Committee hear-

PA 59

ings, particularly with regard to Justices Ray and Kilgarlin. |

deplored the fact that these two justices had filed a

defamation suit against a former briefing attorney of the court

declaring that such lawsuit was a flagrant and obvious attempt

to coerce that briefing attorney and other persons similarly

situated into silence. I further deplored the fact that Justices

Kilgarlin and Ray solicited funds to cover the expense of their

lawsuit from attorneys practicing before the court.

When the Chief Justice proposed that the matter be

turned over to the Judicial Conduct Commission, I applauded

the suggestion. The Judicial Conduct Commission finally

issued reports dated June 8, 1987 which substantiated many of

my contentions.

The name of Justice Spears was also brought into the

Tejeda Hearings. According to published reports, a former

briefing attorney testified that Justice Kilgarlin brought an

attorney into Justice Spears office on a particular date,

borrowed Justice Spears’ personal work file and allowed the

attorney to examine it. Testimony was also given that on

another occasion, a briefing attorney complained to Justice

Spears about ex parte conversations that Justice Ray had

engaged in with a particular attorney. Justice Spears

reportedly advised the briefing attorney that the complaint

was well founded. | incorporated clippings of this testimony

into my campaign literature and spoke numerously concerning

this matter criticizing Justice Spears for his failure to take

affirmative action concerning the matter.

PA 60

Early in the year 1987, the case of Texaco, Inc. v.

Pennzoil Company, 729 S.W.2d 768 (Tex.App.— Houston [1st

Dist.] 1987) was decided by the Court of Appeals at Houston.

During the summer of 1987, the case was brought to the Texas

Supreme Court on application for writ of error. The case

involved one of the largest judgments in history, around $10

billion. The case received extensive publicity. In particular,

considcrable publicity was given to the large campaign

donations of attorneys involved in the case. Attorney Joc

Jamail, counsel for Texaco was identified as one of the most

lavish givers of political campaign contributions to judges. The

Dallas Times Herald published an article analyzing political

contributions received by the nine justices of the Texas

Supreme Court and published a tabulation showing that a

small clique of attorneys had given to the membership of the

Supreme Court well over a million dollars in campaign

contributions. Mr. Jamail and other attorneys identified with

the Texaco case were prominent on the Times Herald

tabulation.

Shortly before the end of the year, the Supreme Court,

without conducting any kind of hearing and without issuing

any kind of opinion refused to grant a writ of error in the

Texaco case, undoubtedly the largest case ever to come before

that court. A great deal of adverse publicity ensued,

particularly in the Wall Street Journal and in Eastern

newspapers. It was widely intimated that the court’s decision

not to hear Texaco was attributable to the massive political

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contributions which had been received from both sides of the

case.

On December 6, 1987, the CBS television network

program “Sixty Minutes” presented a feature on the Supreme

Court and its members entitled “Justice for Sale?” That

television program concentrated upon the large contributions

received by members of the court, upon Mr. Jamail who had

been dubbed “the man who bankrupted Texaco,” and heavily

implied that the justices of this court might well have been

influenced in their conduct in the Texaco case and other cases

by the fact that they had received massive contributions from

a small group of lawyers.

I received almost 45% of the vote at the November,

1986 election. During the next 14 months I remarked to vari-

ous friends and supporters that the fact that I had come close

in my 1986 race had left me with the desire, if I was able, to

make another race in 1988. I was identified several times in

the news media as a probable Republican candidate for the

Supreme Court at the 1988 elections.

Finally, on December 8, 1987, I came to Austin, held a

press conference and issued a news release, copies of which

were shortly thereafter distributed to approximately 100 news

media throughout the state. I announced that I would be a

candidate in the Republican primary for Place 3 on the court

then held by Raul Gonzalez. I was quoted in the news release

and in the media as stating that the time for judicial reform

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had come. I declared “the Texas Supreme Court has become

a national disgrace, by reason of Texaco v. Pennzoil and by

courtesy of CBS and ‘Sixty Minutes.’ ”’ I declared that the case

had put the judges on the spot and that, either way they ruled,

they were bound to make some of their big money backers

mad. I accused the court of pulling a “cop-out” by refusing to

hold a formal hearing in a case involving billions of dollars,

thousands of Texas jobs, hundreds of thousands of

shareholders plus Texaco customers, dealers and suppliers

around Texas and around the nation. I stated that Texas has

suffered too long from a one-party judicial system controlled

by a handful of lawyers and predicted that victory would be

ours in 1988 because the people are demanding an end to a

one-partisan judiciary and the good old boy system.

Since that date, I have made several public appearances

and have been interviewed by a number of reporters from

newspapers, radio and television. I have repeated the

foregoing remarks and have made similar remarks. I have

distributed numerous transcripts of the “Sixty Minutes”

television program, usually highlighting the portion where the

man who bankrupted Texaco bragged to a national television

audience that “I’ve given to all of the Supreme Court justices,

Gonzal

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