Opposition Brief — Mather v. Weaver

iain i iti

Ee

Supreme Court, US.

/ |) FILED

© | APR 30 18

NO. 89-1518

JOSEPH F. SPANIOL, JR.

CLERK

IN THE =

SUPREME COURT OF THE UNITED STATES

October Term, 1989

Ss 2.2: 8. 8 2:28

KENNETH G.M. MATHER, AS TRUSTEE OF

THE ESTATE IN BANKRUPTCY OF M. FRANK

WATSON AND BETTY L. WATSON, AND

BRIAN HARJO WATSON,

Petitioners,

Vv.

BILL WEAVER, ET AL.,

Respondents.

a ee pe

ON PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

2. ES 2 2 eS Ss

Gregory D. Nellis, OBA #6609

Marthanda J. Beckworth, OBA #10204

THOMAS, GLASS, ATKINSON, HASKINS,

NELLIS & BOUDREAUX

525 South Main, Suite 1500

Tulsa, OK 74103

(918) 582-8877

Counsel of Record for Respondents, Bill

Weaver, Tom Newton, and Board of

Commissioners of Okmulgee County

~ BEST AVAILABLE COPY

8 eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeEEEee———EEE———E————EEEs

TABLE OF CONTENTS

PAGE

OPINIONS BELOW . . . + + « © © « « « a

JURISDICTION . . «© « © © «© © «© © © « 4

STATEMENT OF THE CASE ...... . 5

REASONS WHY THE

PETITION SHOULD BE DENIED .... . 16

I. NEITHER THE DECISION BELOW,

NOR THE RECORD, RAISES THOSE

QUESTIONS PRESENTED IN

THE PETITION ... «s+ + © e « « 18

A. THIS COURT SHOULD NOT

DECIDE QUESTIONS NEITHER

RAISED NOR RESOLVED IN

THE LOWER COURT ..... . 19

B. THIS COURT SHOULD DECLINE

TO REVIEW FACTUAL

DETERMINATIONS DECIDED

BEIAW. «© s e+ es ewe we we wo wo ee 22

II. PETITIONERS HAVE PRESENTED

NO REASON FOR THE COURT TO

GRANT CERTIORARI ... ++ «© « e a

A. THE TENTH CIRCUIT

CORRECTLY APPLIED

THE LAW ...-+«-+ oc « « « « 26

B. PEMBAUR v. CITY OF CINCINNATI

IS INAPPLICABLE. ...... 33

— a

C. RECENT CASE LAW DOES NOT

ALTER THE CORRECTNESS OF

THE COURT'S DECISION

D. RESPONDENTS WEAVER AND

NEWTON HAVE ABSOLUTE

IMMUNITY IN EXECUTING

COURT ORDERS. .. .

CONCLUSION . . + « © © © « e

APPENDIZA A. .« « © © © « «

APPENDIX B..+.++ ee © © © «©

APPENDIX © . «© © © © © © © *

APPENDIX DD... -«

39

4l

44

la

4a

6a

9a

TABLE OF AUTHORITIES

PAGE

Branti v. Finkel,

meme. oer C2980) . . «© © ew « « « 24

Briscoe v. LaHue,

Ce Ch hme) . « « « « « 2, €3

Butz v. Economou,

438 U.S. 478 (1978) ....-. - 43

DeFunis v. Odegaard,

DTC SEOPEP 6 « « «ss ee el

Ellis v. Dixon,

OO) ne 2"

Hudson v. Palmer,

—rurome, war (8006)... « - « passin

Imbler v. Pachtman,

Dees, Me © EO7G) « 2 « © se oe ew te SS

Jett v. Dallas Independent School

District,

U.S. _, 109 S.Ct.

RTD « « « « « « 6 «© » « POSSiN

Logan v. Zimmerman Brush Co.,

meme Gee Cheeaep . . - - 17, Jl, W

Mahler v. Doe,

rr. Mee CROP F) « «© ss © e+ oe so 5

Monell v. New York City Dept.

of Social Services,

@30 U.S. Gee (1978) ....-.-.- 23, 39

Neely v. Martin K. Eby Construction Co.,

386 U.S. 317 (1967), reh'g

denied, 386 U.S. 1027 (1967) .. . 20

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

overruled in part on other grounds,

Daniels v. Williams, 474 U.S. 327

SOmwOr « 6+ + © we ee © ele hel le POBBIM

Pembaur v. City of Cincinnati,

475 U.S. 469 (1986) .... . . passim

Pierson v. Ray,

wee Wems Der (2907) . 2 se we ew se ee

Reuck v. Green,

103 Okla. 288, 229 P. 1070 (1924) . 7

Southern Power Co. v. North Carolina

Public Service Co.,

Zee Uses De Camas) « « « « « i te 6

St. Louis v. Praprotnik,

Geo U.@. 252 (ime) «+ « «+ « « s ST, 3

Steagald v. United States,

je oe 6s CS ee

United States v. Arthur Young & Co.,

S63 Ue. Gee (2906) «1 oe se wt tle le 42

United States v. Village of Aslip,

345 F.2d 365

(7th Cir. 1965),

cert. denied, 382 U.S.

oo a | ee ae ae ee ee ee ee ee

Valdez v. City and County of Denver,

878 F.2d 1285 (10th Cir. 1989) .. 43

=. a

Youakim v. Miller,

425 U.S. 231 (1976)

(per curiam)

Zinermon v. Burch,

U.S. ;

110

S.Ct. 975 (1990)

CONSTITUTION AND STATUTES:

United States Constitution

Amendment IV

Amendment V.

42 ¥.S.C. §1981.

42 U.S.C. §1983.

Okla. Const. Art.

Okla. Stat. tit.

Okla. Stat. tit.

(1981 and Supp.

Okla. Stat. tit.

Okla. Stat. tit.

(1981)

Okla. Stat. tit.

(1981 and Supp.

Okla. Stat. tit.

(1981 and Supp.

Oxia. Stat. tit.

(1981)

7 §7

12 §968

19 §131

1989).

19 §215

19 §215.

19 §321

1989).

19 §339

1989).

19 §523

22

passim

passim

20, 3:

37

passim

10, 9a

caGeals « « «+ <F¥

13

om Q39G2)e » 14

5

36, 10a

13

is, 26

11, 10a

Celia. Stat. tit.

through 92.27

Okla. Stat. tit.

(1981)

Geass. Beat. tit.

(1981 )

GCxia. Stat. tit.

(Supp. 1989)

20 §92.1

(1981)

20 §92.25

20 §120

31 §1

=

14, 10a-lla

Lo, 220

10

11, 16, lla-13a

NO. 89-1518

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

KENNETH G.M. MATHER, AS TRUSTEE OF

THE ESTATE IN BANKRUPTCY OF M. FRANK

WATSON AND BETTY L. WATSON, AND

BRIAN HARJO WATSON,

Petitioners,

Vv.

BILL WEAVER; TOM NEWTON; ANDREW S.

HARTMAN; ANDREW S. HARTMAN, P.C.,

an Oklahoma Corporation;

BARKLEY, RODOLPH, WHITE & HARTMAN,

a law firm composed of Michael

Barkley, Charles Michael Barkley, P.C.,

an Oklahoma Corporation;

Stephen J. Rodolph, Jay B. White,

Andrew S. Hartman, Andrew S. Hartman,

P.C., an Oklahoma Corporation;

Sandra Rodolph and Denise G. Hartman;

S & T GAS TRANSMISSION COMPANY, INC.,

an Oklahoma Corporation; JOHN DOE; JANE

DOE and BOARD OF COMMISSIONERS OF

OKMULGEE COUNTY, OKLAHOMA,

Respondents.

SReeRRePRe &e ae ke & €

ON PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION

The respondents Bill Weaver, Tom

Newton, and Board of Commissioners of

Okmulgee County, Oklahoma, respectfully

request that this Court deny the Petition

for Writ of Certiorari, seeking review of

the Tenth Circuit's opinion in this case.

OPINIONS BELOW

Respondents do not disagree with

petitioners' statements of the district

court's and court of appeals' opinions

set out in the petition. (Pet. la-17a).

However, petitioners have failed to

inform the court of subsequent judgments

in this matter which occurred after the

Tenth Circuit rendered its opinion which

reversed and remanded this case to the

trial court.

Petitioners did not file an applica-

tion to stay the district court

proceedings after this case was remanded

from the Tenth Circuit in November, 1989.

Petitioners also did not inform the

district court that they had sought an

extension of time in which to file their

petition for writ of certiorari. Thus,

the district court proceeded to hear

matters involving certain of the

respondents.

In addition to those opinions rendered

at the trial and appellate levels

attached to the petition for certiorari,

the United States District Court for the

Eastern District of Oklahoma on March 15,

1990, granted summary judgment for

respondents Bill Weaver and Tom Newton.

(App. la-5a). The district court granted

judgment for Weaver and Newton after

petitioners failed to respond to the

motion for more than two months. The

district court further examined the

pleadings and evidentiary materials and

granted judgment on the merits for Newton

and Weaver based on theories of judicial

immunity.

JURISDICTION

Petitioners seek to review a decision

of the Tenth Circuit which reversed and

remanded the district court decision as

to Newton, Weaver, and Hartman. (Pet.

3a, 14a, 16a). As to these respondents,

petitioners prevailed in the Tenth

Circuit and were not aggrieved by the

court's ruling. Any reversible error as

to Weaver and Newton is moot in that the

Tenth Circuit granted petitioners the

relief they requested in that court.

This Court's jurisdiction does not extend

to moot questions except in extraordinary

circumstances. See, DeFunis v. Odegaard,

416 U.S. 312 (1974).

Furthermore, as noted above, on remand

the district court granted summary judg-

ment for Weaver and Newton. (App. la-5a)

og

Petitioners have not filed a motion for

new trial or any other appropriate

pleading to challenge the district

court's March, 1990 ruling. It is clear

that events subsequent to the ruling of

the court of appeals may deprive this

Court of the need to exercise

jurisdiction. See, e.g., Mahler v. Doe,

432 U.S. 526 (1977).

STATEMENT OF THE CASE

Whether inadvertent or intentional,

petitioners have neglected to include a

number of significant facts in their

statement of the case. Petitioners have

further mischaracterized many of the pro-

ceedings below. An accurate statement of

the facts and proceedings below is vital

to the Court's understanding of the spe-

cific actions taken on the part of the

respondents. Petitioners have a duty to

this Court to present "clear, definite,

oe

and complete disclosures concerning the

controversy when applying for

certiorari." Southern Power Co. v. North

Carolina Public Service Co., 263 U.S.

508, 509 (1924). In the instant case,

petitioners have failed to make such a

disclosure. ae

Petitioners paint themselves as

blameless citizens deprived of their

statutorily exempt personal property by

actions of law enforcement officers,

attorneys, and elected officials. Such a

characterization is unsupported by the

record.

Petitioners begin by noting that in a

breach of contract action in Oklahoma

state court, attorney Hartman obtained a

judgment of more than $100,000 against

petitioners and on behalf of his client,

S&T Gas Transmission. (Pet. 4).

Petitioners fail to inform the Court that

— =

although they appealed this judgment to

the Oklahoma Supreme Court, they

neglected to post a supersedeas bond or

any other statutory security.

In the State of Oklahoma, the posting

of a supersedeas bond or other proper

security is an absolute necessity to stay

the execution or effect of a judgment

while the appeal is pending. Okla. Stat.

tit. 12 §968 (1981). Thus, respondents

did not "rush to satisfy the six-figure

judgment," (Pet. 3), but merely pursued

their rights under Oklahoma law. See,

e.g., Reuck ». Green, 103 Okla. 288, 229

P. 1070 (1924). Without the posting of

proper security in em Oklahoma courts by

petitioners, Hartman and S&T Gas

Transmission were well within their

rights in seeking to execute on the

judgment.

Pursuant to its judgment, S&T Gas

Transmission, through attorney Hartman,

then attempted to collect the judgment.

S&T Gas Transmission began a garnishment

action, pursued asset hearings, and other

collection procedures. (Hartman depo.

pp. 28-30). Hartman also procured the

writ in aid of execution which forms the

basis of this lawsuit. (App. 6a-7a).

Petitioners place great emphasis on the

fact that the asset hearing had not been

completed before the writ was issued.

Petitioners fail to inform the Court that

the asset hearing was "continued" under

extraordinary circumstances. When the

Watsons were served with a writ of

execution at the hearing on assets, Mrs.

Watson left the courtroom without the

judge's permission and hid in her

attorney's office behind locked doors.

Attorney Hartman and the deputy sheriff

a ee

then proceeded to the attorney's office

where Mrs. Watson refused to come out,

even after being instructed to do so by

the deputy sheriff. Hartman and Mrs.

Watson's attorney had an altercation at

the attorney's office which included the

attorney's closing the office door on

Hartman's foot. (Hartman depo. pp. 44-

47.)

Exasperated by the Watsons' repeated

attempts to frustrate his collection

efforts, Hartman finally sought a writ in

aid of execution from Oklahoma District

Judge John David Maley, the same judge

who bed heard the underlying breach of

contract action. Once again, Petitioners

place great emphasis on the fact that

Judge Maley was not the same judge who

was involved in the asset hearing. This

fact is wholly irrelevant in that both

Judge Maley and Judge Donald Thompson,

— a

sitting in the same judicial district,

had authority to enter orders in this

particular matter. Oklahoma does not

have county judges or county courts.

Okla. Const. Art. 7 §7. (App. Qa).

Although these judges were sitting in

different counties, their jurisdiction

extended throughout the district. Okla.

Stat. tit. 20 §120 (1981).

Judge Maley was well aware of the

facts of the case, as well as the conduct

of the parties, including the fact that

petitioners had consistently attempted to

frustrate service of summons and other

legal process. (Maley depo. p. 15).

Judge Maley signed the writ after

examining its contents and being fully

satisfied that it conformed to law and

was in all ways proper. (Maley depo. p.

16). As a district judye for some

twenty-two years, Judge Maley was clearly

Se

familiar with proceedings involving

execution of judgments. Furthermore, the

writ included, as an attachment, a list

of specific property which was subject to

execution. (App. 8a). An examination of

this list shows that none of this

property is exempt from execution

pursuant to Okla. Stat. tit. 31 §1 (Supp.

1989). (App. lla-13a).

Armed with this properly executed

writ, issued by an Oklahoma District

Judge, Hartman sought assistance from the

sheriff's office. Service of writs and

other legal process is a statutory

responsibility of county sheriffs. Okla.

Stat. tit. 19 §523 (1961). (App. 10a).

In fact, a sheriff may be fined for a

failure to "make due return of any writ

Or process delivered to him to be

executed." Id.

Accompanied by Deputy Sheriff Tom

Newton, Hartman proceeded to the Watsons’

home. Petitioners correctly state that

Deputy Newton sought advice from Sheriff

Weaver on how to proceed when he found

the home locked. Sheriff Weaver then

contacted District Attorney Thomas C.

Giulioli, who advised him to proceed

according to the terms of the writ.

Petitioners fail to include the

significant fact that Judge Maley was

also contacted prior to the forced entry.

(Maley depo. p. 9). Upon instructions

from the sheriff, the district attorney,

and the district judge; Deputy Newton

carefully removed a door on the Watsons'

home.

It must be noted at this point that

the Board of Commissioners of Okmulgee

County was never involved either directly

or indirectly in any of these

proceedings. The County Commissioners

were not consulted either as a group or

individually. The County Commissioners

had set no policy concerning execution of

judgments and indeed had no jurisdiction

to do so. Furthermore, The County

Commissioners exercised no control or

authority over either the district

attorney or the sheriff.

In Oklahoma, county commissioners are

public officials elected from districts

within their respective counties to

govern certain matters within the county.

Okla. Stat. tit. 19 §321 (1981 and Supp.

1989). County sheriffs are also elected

officials and serve the citizens of their

respective counties. Okla. Stat. tit. 19

§131 (1981 and Supp. 1989). County

sheriffs are not subject to the direction

Or control of the Board of County

Commissioners. Okla. Stat. tit. 19 §339

- 13 -

(1981 and Supp. 1989). With the

exception of certain auditing of the

sheriff's operating budget, these elected

officials operate independent of one

another.

District attorneys, however, do not

represent particular counties, but are

elected from Oklahoma's judicial

districts. In fact, there are only

twenty-six "judicial districts" in

Oklahoma and seventy-seven counties.

Okla. Stat. tit. 20 §§92.1 through 92.27

(1981). (App. 10a). The office of

district attorney is filled "in the same

manner" as the office of district judge.

Okla. Stat. tit. 19 §215.1 (1981).

Although district attorneys may give

legal advice and assistance to both law

enforcement officers and county

commissioners, a district attorney does

not make policy decisions for any other

=" oe

elected officials, and, in fact, has no

jurisdiction to do so. District judges

are elected from the same judicial

districts as district attorneys. Judge

Maley and Judge Thompson were both

district judges in Judicial District No.

24, which consists of Okfuskee, Okmulgee,

and Creek Counties. Okla. Stat. tit. 20

§92.25 (1981). (App. lla).

Petitioners wholly ignore these

important jurisdictional distinctions in

their argument. Petitioners further seek

to blur the fact that the district judge

who issued the writ had jurisdiction and

power over all the parties below. None

of the respondents could have circum-

vented the court's ruling. Deputy Newton

was merely following the orders of the

sheriff, district attorney, and district

judge in carrying out his statutory duty.

Contrary to Petitioners’ claims, the

property was not “indiscriminately

seized," (Pet. 10-11), but instead was

carefully collected as it conformed to

the list attached to the writ. With the

exception of one check for $6.67, all the

property seized fell outside the exemp-

tions of Okla. Stat. tit. 31 §1 (Supp.

1989). (App. lla-1l3a). The property was

carefully inventoried as it was removed

and the dwelling was then secured. The

seized property was placed in storage and

later returned to the Watsons.

REASONS WHY THE

PETITION SHOULD BE DENIED

The decision below was in accordance

with established case law of this Court

concerning causes of action for

deprivation of property in alleged viola-

tion of due process. The Tenth Circuit's

ruling is not in conflict with recent

« 36 «

pronouncements in Zinermon v. Burch,

U.S. , 110 S.Ct. 975 (1990), and Jett

v. Dallas Independent School District,

U.S. _, 109 §.Ct. 2702 (1989).

Furthermore, the Tenth Circuit's ruling

is in harmony with Pembaur v. City of

Cincinnati, 475 U.S. 469 (1986), Logan

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

(1982), and Parratt v. Taylor, 451 U.S.

927 (1981), overruled in part on other

grounds, Daniels v. Williams, 474 U.S.

327 (1986).

Finally, petitioners failed to present

many of the issues below which they now

assert on appeal. Additionally, as to

certain respondents, these issues are now

moot. There is simply no question of law

that justifies the granting of a writ of

certiorari. Because of the unusual facts

and circumstances involved here, this

case revolves around questions unlikely

a len

to recur in other cases. Lastly, this

case would require resolutions of

questions of fact decided adversely to

petitioners in both the trial court and

appellate court.

:

NEITHER THE DECISION BELOW, NOR

THE RECORD, RAISES THOSE

QUESTIONS PRESENTED IN THE PETITION

Through inflated rhetoric, petitioners

have attempted to raise this case to a

much higher level of importance than its

facts warrant. In all due respect to

this Court, respondents assert that the

only "question presented" for this Court

is whether a board of county com-

missioners, sheriff, and deputy sheriff

may be held liable for carrying out a

facially valid writ signed by a district

judge. The answer, of course, under any

authority presented, is a resounding

ees "

A. THIS COURT SHOULD NOT DECIDE

QUESTIONS NEITHER RAISED NOR

RESOLVED IN THE LOWER COURT

The sole question presented for review

to the Tenth Circuit was whether a

genuine issue of fact remained for the

jury concerning petitioners' claims that

they were denied due process and equal

protection when Newton and Hartman

entered their home and removed property.

Petitioners' appeal to the Tenth Circuit

was based entirely on violations of their

Fourth Amendment rights. Petitioners'

brief to the Tenth Circuit contained less

than four pages of argument and

authorities. Petitioners relied almost

entirely on this Court's rulings in

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

and Pembaur v. City of Cincinnati, 475

U.S. 469 (1986).

Petitioners never raised issues in

either the district court or the court of

=. =

appeals concerning the exempt status of

the property which was seized. Further-

more, Petitioners have never attacked the

statutory procedures set out in Oklahoma

law which provide for execution of

judgments. This allegedly "established

state procedure" was for the first time

questioned in Petitioners' brief before

this Court. (Pet. 12).

The "normal policy" of this Court is

to refuse to consider issues "which have

not been presented to the Court of

Appeals." Neely v. Martin kK. Eby

Construction Co., 386 U.S. 317, 330

(1967), reh'g denied, 386 U.S. 1027

(1967). When issues are not properly and

timely presented below, such issues are

“not properly presented for review." Id.

This standard is particularly applicable

in review of an order granting summary

judgment. The specific requirements of

» SS «

Fed. R. Civ. P. 56, mandated that

petitioners present their evidentiary

materials and legal argument in the

courts below. Petitioners cannot for the

first time present issues of fact to this

Court. See, e.g., United States v.

Village of Aslip, 345 F.2d 365, 370 (7th

Cir. 1965), cert. denied, 382 U.S. 906

(1965).

In opposition to -the motion for sum-

mary judgment, petitioners failed to

a: evidentiary material or argument

concerning the procedure for execution of

judgments in Oklahoma. Petitioners

raised neither argument nor evidence

concerning alleged exempt property.

Petitioners further failed to establish

any connection whatsoever between the

County Commissioners and the alleged

deprivation of their Fourth Amendment

rights. These issues were not properly

- om «

preserved and may not be raised now.

Youakim v. Miller, 425 U.S. 231, 233-34

(1976) (per curiam).

This Court "has often refused to

decide constitutional questions on an

inadequate record." Ellis v. Dixon, 349

U.S. 458, 464 (1955). The Ellis Court

explained the rationale behind such a

refusal in noting, "if we could not

ourselves decide on this record the

constitutional issues tendered, we

consider that by the same token the

[Court of Appeals] was entirely justified

in refusing to pass on them." Id.

B. THIS COURT SHOULD DECLINE TO

REVIEW FACTUAL DETERMINATIONS

DECIDED BELOW

Petitioners assert that "[t]he court

of appeals did not explain the basis for

its ruling that Okmulgee County and the

law firm could not be sued for violation

of the Fourth Amendment." (Pet. 8). An

+

examination of the Tenth Circuit's

opinion shows that the court based its

ruling “upon our review of the record on

appeal and the parties' briefs," (Pet.

3a), concluding “that under no theory

should plaintiffs' case proceed against

[the County Commissioners]." Id.

The record below shows that the only

theory presented to the trial court to

establish liability for the County

Commissioners was based on its

"supervisory liability" of Deputy Newton.

The trial court found that as a matter of

fact and law, the County Commissioners

were not responsible for actions of law

enforcement officers. (Pet. 7a). Under

the clear holding of Monell v. New York

City Dept. of Social Services, 436 U.S.

658 (1978), the County Commissioners

cannot be liable under §1983 on

respondeat superior theories. Accord,

— .

Jett v. Dallas Independent School

District, U.S. , ses 8.0. 2ree

(1989).

The trial court further found no

"affirmative link," between the County

Commissioners and the actions set out in

the complaint. (Pet. Fes da Although

petitioners attempted to establish that

Deputy Newton was acting according to

policy, they failed to show either the

existence of such a policy, the effect of

such a policy, or a violation of such

policy. (Pet. 7a). Indeed, petitioners

failed to present such evidence because

none exists. The district court correct-

ly found that the conduct was "random and

unauthorized," (Pet. 10a) a factual

determination accepted by the Tenth

Circuit. As stated in Branti v. Finkel,

445 U.S. $07, 512 n.6 (1960), this Court

will decline to review findings of fact

—"

in which the district court and court of

appeals concur.

Both courts below correctly concluded

there was no evidence of an established

policy. Both courts further concluded

that the facts showed a random and

unauthorized act. This finding is

Supported by the record and does not

warrant further review.

Bas

PETITIONERS HAVE PRESENTED NO REASON

FOR THE COURT TO GRANT CERTIORARI

Petitioners attempt to argue that the

Tenth Circuit's ruling is in conflict

with other courts concerning the import

of Parratt v. Taylor, 451 U.S. 527

(1981). The court's ruling is in harmony

with Parratt. Furthermore, even if the

ruling were contrary to Parratt, the

Tenth Circuit reversed and remanded that

part of the district court's decision

= 25

which relied on Parratt. Thus, any error

will be corrected on remand.

A. THE TENTH CIRCUIT

CORRECTLY APPLIED THE LAW

Concerning petitioners' Fifth

Amendment claims of deprivation of

property, these claims were not properly

presented in their brief to the Tenth

Circuit. Furthermore, the Tenth Circuit

correctly ruled that such claims were

governed by the Court's ruling in Parratt

v. Taylor. Parratt was a §1983 action

brought by a prisoner after prison

employees negligently lost materials he

had ordered by mail. The prisoner did

not dispute that he had a post-

deprivation tort remedy in state court.

In Parratt, the Court ruled that the tort

remedy was all the process the party

deprived of property was due, because any

predeprivation procedural safeguards that

—

the State did provide, or could have

provided, would not address the risk of

this kind of deprivation. The Court

explained:

The justifications which we have

found sufficient to uphold takings

of property without any

predeprivation process are

applicable to a situation such as

the present one involving a

tortious loss of a prisoner's

property as a result of a random

and unauthorized act by ae state

employee. In such a case, the loss

is not a result of some established

state procedure and the State

cannot predict precisely when the

loss will occur. It is difficult

to conceive of how the State could

provide a meaningful hearing before

the deprivation takes place.

451 U.S. at 541. The proper inquiry

under Parratt is "whether the state is in

a position to provide for predeprivation

process." Hudson v. Palmer, 468 U.S.

517, 534 (1984) (emphasis added).

In the instant case, the state of

Oklahoma adequately protects the rights

of judgment debtors through the posting

« 29 =

of a supersedeas bond, appellate

procedures, hearings on assets, and

garnishment statutes. As noted earlier,

petitioners failed to post any appeal

bond and thus their non-exempt property

became subject to levy and execution.

Petitioners were represented by counsel

and completely ignored the statutory

procedures available to them to protect

their property in both the Oklahoma

appellate courts and the collection

proceedings.

Furthermore, attorney Hartman's

actions were not the kind of acts

contemplated or condoned under Oklahoma

law. As the district court and Tenth

Circuit concluded, these acts were

"random and unauthorized." Thus, the

holding of Parratt clearly applies.

Parratt's reasoning was extended to

intentional deprivations of property in

~ 2

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

In Hudson, a prisoner alleged that a

guard deliberately and maliciously

destroyed his property. Once again, the

prisoner had a tort remedy which could

have compensated him for the loss. In

Hudson, as in Parratt, the state official

was not acting pursuant to established

state procedures, but was pursuing a

random, unauthorized vendetta against the

prisoner. Id. at 521, n. 2. The Court

noted: "The state can no more anticipate

and control in advance the random and

unauthorized intentional conduct of its

employees than it can anticipate similar

negligent conduct." Id. at 533.

As characterized in Zinermon v. Burch,

U.S. at , £10 §.Ct. at 9378, the

rulings in Parratt and Hudson concerned

a deprivation of a constitutionally

protected property interest caused by a

— oe

state employee's random, unauthorized

conduct.” Such conduct "does not give

rise to a §1983 procedural due process

claim, unless the State fails to provide

an adequate postdeprivation remedy." Id.

at 230 B08. at Fre. Parratt's and

Hudson's rationales were stated to reach

those situations "where the State cannot

predict and guard in advance against a

deprivation, a postdeprivation tort

remedy is all the process the State can

be expected to provide, and is

constitutionally sufficient." Id.

Parratt and Hudson each represent cases

"in which postdeprivation tort remedies

are all the process that is due, simply

because they are the only remedies the

State could be expected to provide." Id.

at , 110 $.Ct. at 955.

The Tenth Circuit correctly applied

Parratt to the petitioners' Fifth

Amendment claims. The facts of the

instant case, as those in Parratt and

Hudson show a "random, unauthorized act."

Petitioners have never Challenyed tie

adequacy of state tort remedies. This

case clearly satisfied those criteria

where a common-law tort remedy for

erroneous deprivation satisfies due

process. See, e.g., Logan v. Zimmerman

Brush Co., lass U.S. 422, 436 (1982).

Additionally, petitioners did not

Challenge the district court's findings

concerning their Fifth Amendment claims

in their brief to the Tenth Circuit.

Petitioners' brief to the Tenth

Circuit set out as their only challenge

the district court's application of

Parratt to their Fourth Amendment search

and seizure claims. Contrary to

> oe

petitioners' assertions, the Tenth

Circuit did not conclude that petitioners

had "an adequate state law remedy," for

their Fourth Amendment claims. In fact,

the part of the district court's ruling

which applied Parratt to the Fourth

Amendment search and seizure claims was

reversed and remanded. (Pet. 3a-4a).

Respondents are at a loss to understand

the import of petitioners' argument to

this Court in that they have been granted

the relief which they sought by the very

ruling of which they now complain. There

is no reason for this Court to grant

certiorari when any allegea error will be

corrected on remand. Furthermore, the

Gistrict court and Tenth Circuit have

concluded that the acts complained of

were both "random" and "unauthorized,"

based on the fact that entry into a

dwelling house is not permitted under

>

Oklahoma law. These factual

determinations are not subject to review.

B. PEMBAUR v. CITY OF CINCINNATI

IS INAPPLICABLE

In Steagald v. United States, 451 U.S.

204 (1981), the Court held that an

officer may not search for the subject of

an arrest warrant in a third party's home

without first obtaining a search warrant,

unless the search isS consensual or

justified under exigent circumstances.

The holding in Steagald was extended to

constitutional violations of Fourth

Amendment rights to create a basis for

civil liability under §1983 in Pembaur v.

City of Cincinnati, 475 U.S. 469 (1986).

However, Pembaur waS premised on the

existence of a government policy "to take

an unlawful action made by municipal

policymakers." Id. at 463. The Court

held:

[T]hat municipal liability under

§1983 attaches where--and only

where--a deliberate choice to

follow a course of action is made

from among various alternatives by

the -effticiei or of ficiais

responsible for establishing final

policy with respect to the subject

matter in question.

Id. at 483-84.

Petitioners have been unable to ever

show any official "policy" on the part of

the County Commissioners or the Sheriff

which would have authorized or supported

the forced entry in this case. In fact,

the official "policy" was "to try not to

forcibly enter anywhere." (Weaver depo.

So. £9.) Apparertly realizing this

difficulty, petitioners tried to

establish that the district attorney's

advice to forcibly enter the Watsons'

home established county policy.

Petitioners have never presented any

evidence in support of this, and their

rt ae

legal argument omits fatal distinctions

in Oklahoma's statutory scheme of

governmental authority.

The district court correctly ruled,

and the court of appeals affirmed, that

the requisites for governmental liability

set out in Pembaur, had not been met.

Pembaur established that "[county]

liability attaches only where the

decision-maker possesses final authority

to establish [county] policy with respect

to the action ordered." Id. at 481

(footnote omitted). If the county

official offered mere "legal advice,"

this -is not grounds for liability. Id.

at 484-85. Pembaur established that the

policy making authority may be shown by

(1) legislative enactment, or. ¢23

delegation of authority.

Oklahoma law allows a district

attorney to "give opinions or advice to

- 35 -

the board of county commissioners and

other civil officers of his counties when

requested." Okla. Stat. tit. 19 $215.5

(Supp. 1989) (App. 10a). Thus, pursuant

to statute, the district attorney is

clearly not a policymaker for the County

Commissioners. The district attorney in

Judicial District No. 24, served the

citizens of three counties. As far as

delegation of authority, the record is

totally devoid of any evidence of

delegation of authority to the district

attorney by an official possessing such

authority. In Oklahoma, the district

attorney's authority is derived solely

from statute.

Jett v. Dallas Independent School

District, U.S. , ave S.Ct. 2702

(1989), does not change this ruling.

Jett did not deal with Fourth Amendment

Claims. Jett further did not address the

ae aE

adequacy of post deprivation remedies.

Jett instead determined that the explicit

remedies of §1983 were controlling in the

context of damages actions’ brought

against state actors pursuant to §1981.

In so holding, Jett reaffirmed the

Court's refusal to adopt a respondeat

Superior standard on municipalities for

violations of federal civil rights by

their employees. id. at i, i09 &.Ct.

at 2721.

Jett's only application to the instant

case merely restated that "'whether a

particular official has "final

policymaking authority" is a question of

state law.'" Id. and, 109 S.Ct. at

2723, quoting St. Louis v. Praprotnik,

485 U.S. 112, 123 (1988). Jett was

remanded to the Court of Appeals to

determine whether a government official

possessed final policymaking authority in

=| S79 o

light of the Court's rulings in Pembaur

and Praprotnik. Here, those factual

determinations have already occurred and

both courts below have found that the

district attorney did not have final

policymaking authority for the County

Commissioners.

As a final matter, the Court must

remember that no local policy or county

policy was involved in this matter. The

law enforcement officers were merely

executing a valid writ pursuant to state

law. Local law enforcement officers are

"expected to obey the law and ordinarily

swear to do so when they take office."

Pembaur, 475 U.S. at 486 (White, J.,

concurring). Both the district judge and

district attorney were simply asked to

interpret the language of a court order.

There was simply no "policymaker" present

here. "If deliberate or mistaken acts

= =

like this, admittedly contrary to local

law, expose the county to liability, it

must be on the basis of respondeat

Superior and not because the officers'

acts represent local policy." Id. Such

results would not conform to Monell and

Jett.

C. RECENT CASE LAW DOES NOT ALTER THE

CORRECTNESS OF THE COURT'S DECISION

Petitioners attack the execution of

the writ as an "established state

procedure," which deprived them of due

process (Pet. 12). Petitioners then

attempt to apply the Court's recent

pronouncement in Zinermon v. Burch,

v.s. , 110 S.Ct. 975 (1990). However,

the Zinermon Court specifically stated

that its opinion did not reach claims of

deprivation of due process "by an

established state procedure." Id. at

ae wae, Ot STS, n. 3. Zinermon

~ 20 «

reaffirmed that such due process claims

are still governed by Logan v. Zimmerman

Brush Co., €55 U.S. 422 (1982).

Petitioners’ very characterizations of

the actions in this case move them

outside the ambit of Zinermon.

The Zinermon Court further found

Parratt v. Taylor, uncontrolling. Id. at

, £10 8.Ct. 8 969. While Parratt

dealt with random and unauthorized acts

of state employees, Zinermon reached the

issue of accountability of state

officials for "abuse of their broadly

delegated, uncircumscribed power to

effect the deprivation at issue." Id. at

, 110 S.Ct. at 989. The Court did not

change Parratt's "due process analysis

where post deprivation process is all

that is due because no predeprivation

safeguards would be of use in preventing

the kind of deprivation alleged." Id. at

—

tsi a

, e839 §.6t.. Fee. Indeed, the dissent

argues that Parratt and Hudson, should

govern in Zinermon. Id. at ~ a ee

S.Ct. at 990 (O'Connor, J., dissenting).

In the instant case, there is simply

no broad delegation of power as in

Zinermon. Nor is there any showing of

abuse of that power. Nothing in Zinermon

changes Parratt's ruling concerning the

adequacy of state law remedies for

deprivation of property rights.

D. RESPONDENTS WEAVER AND NEWTON

HAVE ABSOLUTE IMMUNITY IN

EXECUTING COURT ORDERS

Even if the Tenth Circuit's ruling

were entirely incorrect, a fact which

respondents do not begin to concede,

respondents have immunity in executing

court orders. Respondents have raised

the immunity issue from the beginning of

this lawsuit. Indeed, respondents Weaver

and Newton were granted summary judgment

ee

in March, 1990 on the basis of quasi-

judicial immunity. As the prevailing

party, respondents "may urge any ground

in support of the judgment below, whether

or not that ground was relied upon or

even considered by the court below."

United States v. Arthur Young & Co., 465

U.S. 805, 814, n. 12 (1984).

Courts have long "provided absolute

immunity from subsequent damages

liability for all persons -- governmental

or otherwise -- who were integral parts

of the judicial process." Briscoe v.

LaHue, 460 U.S. 325, 335 (1983) (quoting

Butz v. Economou, 438 U.S. 478, 512

(1978)) (emphasis added). Accordingly,

the Court has recognized not only the

absolute civil immunity of judges for

conduct within their judicial domain,

Pierson v. Ray, 386 U.S. 547, 554-55

(1967)), but also the "quasi-judicial"

oe «=

Civil immunity of prosecutors, Imbler v.

Pachtman, 424 U.S. 409, 430-31 (1976),

grand jurors, Id. at 423, n. 20,

witnesses, Briscoe, 460 U.S. at 345-46,

and agency officials, Butz, 438 U.S. at

512-13, for acts intertwined with the

judicial process.

Deputy Newton was acting pursuant to

court order and instructions from Judge

Maley in executing the writ. He was thus

engaged in acts intertwined with the

judicial process. Absolute immunity for

those officials assigned to carry out a

judge's orders is necessary to insure

that such officials can perform their

duties without the need to hire permanent

legal counsel to interpret every court

order which the official must execute.

See, Valdez v. City and County of Denver,

878 F.2d 1285 (10th Cir. 1989), and cases

cited therein.

~ £& «

CONCLUSION

For these reasons, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

Gregory D. Nellis, OBA #6609

Marthanda J. Beckworth, OBA #10204

THOMAS, GLASS, ATKINSON, HASKINS,

NELLIS & BOUDREAUX

525 South Main, Suite 1500

Tulsa, OK 74103

(918) 582-8877

Counsel of Record for Respondents,

Weaver, Newton, and Board of

County Commissioners of Okmulgee

County

April, 1990

APPENDIX

Order or the United States District

Court for the Eastern District of

Oklahoma, filed March 15, 1990.

Judgment of the United States

District Court for the Eastern

District of Oklahoma, filed March kD,

1990.

Writ of the District Court In and For

Creek County, State of Oklahoma

Selected Oklahoma Statutes

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF OKLAHOMA

M. FRANK WATSON, et al.,

)

)

Plaintiffs, )

)

vs. ) No. 87-412-C

) (Filed

BILL WEAVER, et al., ) 3-15-90)

)

Defendants. )

ORDER

Before the Court is the motion for

summary judgment of defendants Bill

Weaver and Tom Newton. Plaintiffs have

not responded to the motion and, pursuant

to Rule 14 of the Local Rules, the motion

is deemed confessed. However, the Court

has independently reviewed the record.

Weaver was at relevant times the

Sheriff of Okmulgee County and Newton was

the Deputy Sheriff. Armed with a writ of

execution issued by a state court judge,

movant approached plaintiffs' home and

- la -

found it locked. Newton sought guidance

from the Okmulgee District Attorney, who

told Newton to enter the house. The

house was forcibly entered and property

of the plaintiffs was taken from the

dwelling. Plaintiffs bring this action

under 42 U.S.C. §1983.

Movants argue that as officers sworn

to execute court orders they are

protected by absolute immunity while

executing such orders, citing Valdez v.

City and County of Denver, 878 F.2d 1285

(10th Cir. 1989). Upon review, the Court

agrees and finds the motion to be well

taken.

It is the Order of the Court that the

motion for summary judgment of defendants

Bill Weaver and Tom Newton is’ hereby

GRANTED.

IT IS SO ORDERED this 15th day of

March, 1990.

/s/ H. Dale Cook

H. DALE COOK

United State District Judge

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF OKLAHOMA

M. FRANK WATSON, et. al., )

)

Plaintiffs, )

)

vs. ) No. 87-412-C

) (Filed

BILL WEAVER, et al., ) 3-15-90)

)

Defendants. )

JUDGMENT

This matter came before the Court for

consideration of defendants' motion for

summary judgment. The issues having been

duly considered and a decision having

been rendered in accordance with the

Order filed contemporaneously emiith,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that judgment is entered for

defendants Bill Weaver and Tom Newton,

and against plaintiffs.

IT IS SO ORDERED THIS 15th day of

March, 1990.

/s/ H. Dale Cook

H. DALE COOK

United State District Judge

APPENDIX C

IN THE DISTRICT COURT IN AND FOR

CREEK COUNTY, STATE OF OKLAHOMA

S & T GAS TRANSMISSION, )

)

Plaintiff, )

) Case No.

vs. ) C-83-664

)

M. FRANK WATSON and BETTY )

L. WATSON, et al., )

)

Defendants. )

WRIT

STATE OF OKLAHOMA, OKMULGEE COUNTY

STATE OF OKLAHOMA TO THE SHERIFF OF

OKMULGEE COUNTY:

WHEREAS, in a certain action lately

tried before me, wherein S & T Gas Trans-

mission Company was Plaintiff, and M.

Frank Watson, Betty L. Watson and Watson

Gathering Systems, Inc. were Defendants,

judgment was entered on the 23rd day of

April, 1986. Whereas counsel has advised

the Court that assistance is needed to

execute upon the property of the

- 6a -

aforesaid Defendants. Now, therefore,

you are hereby commended [sic] to

forcibly go upon the premises of said

individuals, to enter the premises of

said individuals and execute upon the

personal property enumerated at Exhibit

"A" to this Writ.

/s/ John Maley

JOHN MALEY

District Judge

EXHIBIT "A"

Trophys

Madallions

Paintings

Sculptures

Statutes

Cash

Coins

Furs

Jewelry

VCR

Televisions

Stereos

Radios

Christmas Presents

Clocks

Antiques

Silver

China

Crystal

Unnecessary Furnishings

Rugs

Saddles

Bridles

Cars

Computers

Typewriters

Tapes

Records

Movie Equipment and Video

Guns

Recreational Equipment

APPENDIX D

Okla. Const. Art. 7 §7.

§7. District Courts - Jurisdiction -

Courts abolished - Transfer of

jurisdiction, files, etc.

(a) The State shall be divided by the

Legislature into judicial districts, each

consisting of an entire county or of

contiguous counties. There shail be one

District Court for each judicial

district, which shall have such number of

District Judges, Associate District

Judges and Special Judges as may be

prescribed by statute. The District

Court shall have unlimited original

jurisdiction of all justiciable matters,

except as otherwise provided in this

Article, and such powers of review of

administrative action as may be provided

by statute. Existing electing districts

for all who are or who become District

Judges and Associate District Judges

under the terms of this Article shall

remain as they are constituted for the

offices formerly held by such person on

the effective date of this Article, until

changed by statute. The Legislature may

at any time delegate authority to the

Supreme Court to designate by court rule

the division of the State into districts

and the numbers of judges.

Okla. Stat. tit. 19 §215.5 (1981)

§215.5 Advice to county officers

The District Attorney or his

assistants shall give opinion and advice

to the board of county commissioners and

other civil officers of his counties when

requested by such officers and boards,

upon all matters in which any of the

counties of his district are interested,

or relating to the duties of such boards

or officers in which the state or

counties may have an interest.

Okla. Stat. tit. 19 §523 (1981)

§523 Failure to make returns - Penalty

Whenever any sheriff shali neglect to

make due return of any writ or process

delivered to him to be executed, or shall

be guilty of any default or misconduct in

relation thereto, he shall be liable toa

fine or attachment, or both at the

discretion of the court, subject to

appeal; such fine, however, not to exceed

Two Hundred Dollars; and also an action

for damages to the party so aggrieved.

Okla. Stat. tit. 20 §92.1 (1981)

§92.1 Judicial districts - District

Judges

The state is hereby divided into

twenty-six (26) district court judicial

districts with the number of authorized

districts and district judges to be as

- 10a -

provided in Sections 2 through 27 of this

act.

§92.25 District No. 24

The counties of Okfuskee, Okmulgee and

Creek. Said district shall have five

district judges to be nominated and

elected as fcllows: One candidate to be

nominated and elected at large and a

legal resident of Okfuskee County; two

candidates to be nominated and elected at

large and legal residents of Okmulgee

County; and two candidates to be

nominated and elected at large and legal

residents of Creek County, all of whom

shall be elected at large.

Okla. Stat. Tit. 31 §1 (Supp. 1989)

HOMESTEAD AND EXEMPTIONS

§1. Property exempt from attachment,

execution or other forced sale --

Bankruptcy proceedings

A. Except as otherwise provided in

this title and notwithstanding subsection

B of this section, the following property

Shall be reserved to every person resid-

ing in the state, exempt from attachment

or execution and every other species of

forced sale for the payment of debts,

except as herein provided:

1. The home of such person, provided

that such home is the principal residence

of such person;

- lla -

oe All household and kitchen furni-

ture held primarily for the personal,

family or household use of such person or

a dependent of such person;

6. Tools, apparatus and books used in

any trade or profession of such person or

a dependent of such person;

7. All books, portraits and pictures

that are held primarily for the personal,

family or household use of such person or

a dependent of such person;

8. The person's interest, not to

exceed Four Thousand Dollars ($4,000) in

aggregate value, in wearing apparel that

is held primarily for the personal,

family or household use of such person or

a dependent of such person;

12. Two horse and two bridles and two

saddles, that are held primarily for the

personal, family or household use of such

person or a dependent of such person;

14. One gun, that is held primarily

for the personal, family or household use

of such person or a dependent of such

person;

18. Seventy-five percent (75%) of all

current wages or earnings for personal or

professional services earned during the

last ninety (90) days, except as provided

in Title 12 of the Oklahoma Statutes in

garnishment proceedings for collection of

child support;

B. No natural person residing in this

state may exempt from the property of the

estate in any bankruptcy proceeding the

property specified in subsection (d) of

Section 522 of the Bankruptcy Reform Act

of 1978, Public Law 95-598, 11 U.S.C.A.

101 et seq., except as may otherwise be

expressly permitted under this title or

other statutes of this state.

C. In no event shall any property

under paragraph 5 or 6 of subsection A of

this section, the total value of which

exceeds Five Thousand Dollars ($5,000),

of any person residing in this state be

deemed exempt.

- 13a -