# Opposition Brief — Mather v. Weaver

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 925

## Text

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 « « «+ 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 -

---

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