Opposition Brief — Christmas v. Marson

Ad0) TIGVTIWAY 1S34

No. 89-1742 Supreme Court, U.S.

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Supreme Court of the Unite

In The JUN 8

WFERUCS SPANIOL, JR

CLERK

October Term, 1989

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CLEVELAND CHRISTMAS,

Petitioner,

VS.

JOSEPH MARSON, DOUGLAS BAKER,

CHARLES MURPHY, ROBERT ADAIR,

SANDRA GREENBERG, KENNEDY SHAW,

JACK DRAKEFORD AND THE

CITY OF ENGLEWOOD,

Defendants, And

JOSEPH MARSON, DOUGLAS BAKER,

CHARLES MURPHY, ROBERT ADAIR,

SANDRA GREENBERG, KENNEDY SHAW,

AND JACK DRAKEFORD,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

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OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

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THomas F. Quinn, Esq.

(Counsel of Record)

WILSON, ELsSER, Moskowitz,

EDELMAN & DIcCKER

Attorneys for Defendants

Joseph Marson, Douglas Baker,

Charles Murphy, Sandra Greenberg,

Jack Drakeford and Kennedy Shaw

One Gateway Center, Suite 1600

Newark, New Jersey 07102

(201) 624-0800

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The Respondents disagree with the question us

phrased by the Petitioner. The question which the trial

court certified to the U.S. Court of Appeals for the Third

Circuit pursuant to 28 U.S.C. 1292(b) was “whether N_J.

Stat. Ann. Section 2A:14-1 or Section 2A:14-2 should ap-

ply to Section 1983 actions and Section 1985 actions in

New Jersey in light of Owens v. Okure, 109 S.Ct. 573

(1989).”

ii

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT. .............seeceeees

LEGAL ARGUMENT

POINT I

CERTIORARI SHOULD BE DENIED AS THE

THIRD CIRCUIT’S DECISION IS CONSISTENT

WITH THIS COURT’S PRIOR RULINGS AND

NEW JERSEY STATE COURT PRECEDENT ......

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TABLE OF AUTHORITIES

CASES

Al-Khazaji v. St. Francis College, 481 U.S. 604, reh.

denied, 463 U.S. 1011 (1987)........seccccoees

Brown v. Foley, 810 F.2d 55 (3d Cir. 1987)........

Brown v. Hotel & Restaurant Employers & Bar-

fomaere, SEB U.S. BO1 (ISSR)... ones ceccccscnces

Cito v. Bridgewater Twp. Police Dept., 892 F.2d 23

(3d Cir. 1989)

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987).

Healey v. Township of Dover, 208 N.J. Super. 679, 506

Pee Te GUY COM FOUOP noc wis cccvcewcesvers

Knoll v. Springfield Township School District, 763

EE PO ve wncvesscessccenesess

Mancuso v. Mancuso, 209 N.J. Super. 51, 506 A.2d

SROe WI GOR TODBR coiccivccccccvecnccccnces

Napier v. Thirty or More Unidentified Federal Agents,

Employees or Officers, 855 F.2d 1080 (3d Cir. 1988)

O'Connor v. Atlas, 67 N.J. 106, 335 A.2d 545 (1975)

Owens v. Okure, 109 S.Ct. 573 (1989) ............

Port Authority of New York and New Jersey v. Ingram,

232 N.J. Super. 401, 557 A.2d 337 (App. Div.

1989)

Teese esesze ae eee eer ev see Cee seespe Ces eoovsescsanvee72e se 2

Southern Pacific Co. v. Wheaton Brass Works, 5 N.].

594, 76 A.2d 890 (1950), cert. den. 341 U.S. 904

(1951)

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iv

TABLE OF AUTHORITIES - Continued

Spring Motors Distributors, Inc. v. Ford Motor Co.,

191 N.J. Super. 22, 465 A.2d 530 (App. Div.

1983), rev’d on other grounds, 98 N.J. 555, 489

Feat I EE Hacc cheddecevadddédebecetnes cts.

Springfield Township School District v. Knoll, 471

Sy Ee anes enbedadevectesedetnusaaesss

Urban League of Greater New Brunswick v. Borough

of Carteret, 170 N.J. Super. 461, 406 A.2d 1322

(App. Div. 1979), rev’d on other grounds, 92 N.].

Pee eee

Wayne Township Board of Education v. Strand Centu-

ry, Inc., 172 N.J. Super. 296, 411 A.2d 1161 (App.

Div. 1980)

STATUTES

42 Pa. C.S.A. 5527

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Page

STATEMENT OF THE CASE

The facts of the case are stated fully in the decisions

of the Third Circuit (Petitioner’s App. 1 to 10) and the

District Court (Petitioner’s App. 18 to 32 and App. 69 to

82).

sa.

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SUMMARY OF ARGUMENT

The decision of this Court in Owens v. Okure, 109 S.Ct.

573 (1989) did not change the holding in Wilson v. Garcia,

471 U.S. 261 (1985) that a state’s “personal injury” statute

should apply to section 1983 claims. Wilson, supra, at 271.

Thus, the Third Circuit in this case had no reason to

reverse three reported decisions which hold that New

Jersey’s two-year statute of limitations applies to Secticn

1983 actions. Moreover, the petition should not be

granted as the Third Circuit did not err in its holding that

claims under 42 U.S.C. Sections 1983 and 1985 arising in

New Jersey are governed by New Jersey’s two-year per-

sonal injury statute of limitations, N.J. Stat. Ann. 2A:14-2.

Finally, this Court traditionally has not exercised its dis-

cretion in granting certiorari to review perceived conflicts

between state and federal law, but rather only to review

actual conflicts. As the Third Circuit decisions do not

conflict with any New Jersey State Court decision, the

petition should be denied.

Sd

LEGAL ARGUMENT

POINT I

CERTIORARI SHOULD BE DENIED AS THE THIRD

CIRCUIT’S DECISION IS CONSISTENT WITH THIS

COURT’S PRIOR RULINGS AND NEW JERSEY STATE

COURT PRECEDENT

The decision of this Court in Owens v. Okure, 109 S.Ct.

573 (1989) was intended to clarify the Court’s holding in

Wilson v. Garcia, 471 U.S. 261 (1985), not change it. In

Wilson, this Court analyzed 42 U.S.C. §§ 1983 and 1988 in

order to determine the appropriate limitations period for

section 1983 claims. This Court first perceived that the

characterization of section 1983 claims was to be made by

federal, not state, standards. 471 U.S. at 270. Second, this

Court examined the intent of Congress in 1871 when

section 1983 was passed, as well as the “admonition” of

section 1988, id. at 275, and concluded that Congress

favored a “simple approach” of selecting “the one most

appropriate statute of limitations for all section 1983

claims.” Id. Third, in evaluating the ways that Congress

sought to redress constitutional violations of the Civil

Rights Act, this Court determined that the fundamental

characteristic of a section 1983 claim was “more analo-

gous to tort claims for personal injury than, for example,

to claims for damages to property of breach of contract.”

Id. at 277. Finally, this Court noted that “[t]he relative

scarcity of statutory claims when section 1983 was en-

acted makes it unlikely that Congress wouid have intend-

ed to apply the catchall periods of limitations for

statutory claims that were later enacted by many states.”

Id. at 278. Thus, this Court in Wilson concluded that a

state’s “personal injury” statute should apply to ail sec-

tion 1983 claims. Id. at 279. Significantly in Wilson, this

Court applied New Mexico’s three-year statute of limita-

tions which governs actions “for an injury to the person

or reputation of any person.” Id. By so holding, this Court

rejected application of New Mexico’s four-year residual

statute of limitations which governs “all other actions not

herein otherwise provided for.” Id. at 271.

In Owens, this Court unanimously held that where

state law provides multiple statutes of limitations for

particular personal injury actions, a court considering a

section 1983 claim “should borrow the general or residual

statute for personal injury actions.” Id. at 582 (emphasis

added). As phrased by Justice Marshall, the issue in

Owens was “the question of what limitations period

should apply to a section 1983 action where a state has

one or more statutes of limitations for certain enumerated

intentional torts, and a residual statute for all other per-

sonal injury actions.” Id. at 574. In New Jersey, there

exists only one personal injury statute of limitations that

applies to both unintentional and intentional acts, as long

as these acts result in “injury to the person”: N.J. Stat.

Ann. 2A:14-2. Indeed, the courts of New Jersey have

consistently interpreted N.J. Stat. Ann. 2A:14-2 as the

state’s general personal injury statute. See, e.g. O'Connor

v. Altas, 67 N.J. 106, 113, 335 A.2d 545, 548 (1975) (Section

2A:14-2 is New Jersey’s “personal injury” statute of lim-

itations); Port Authority of New York and New Jersey v.

Ingram, 232 N.J. Super. 401, 404-405, 557 A.2d 337, 338

(App. Div. 1989) (same); Healey v. Township of Dover, 208

N.J. Super. 679, 682, 506 A.2d 824, 826 (App. Div. 1986);

Mancuso v. Mancuso, 209 N.J. Super. 51, 54-55, 506 A.2d

1253, 1255 (App. Div. 1986); Spring Motors Distributors,

Inc. v. Ford Motor Co., 191 N.J. Super. 22, 37, 465 A.2d 530,

538 (App. Div. 1983), rev’d on other grounds, 98 N.J. 555,

489 A.2d 660 (1985); Wayne Township Board of Education v.

Strand Century, Inc., 172 N.J. Super. 296, 302, 411 A.2d

1161, 1163 (App. Div. 1980). Thus, the holding in Owens

has no relevancy to New Jersey. As aptly stated by this

Court, “[iJn states where one statute of limitations applies

to all personal injury claims, Wilson supplies a clear an-

swer.” Owens v. Okure, supra, 109 S.Ct. at 577.

Significantly, two pre-Owens Third Circuit decisions,

Brown v. Foley, 810 F.2d 55 (3d Cir. 1987) and Napier v.

Thirty or More Unidentified Federal Agents, Employees or

Officers, 855 F.2d 1080 (3d Cir. 1988), established New

Jersey’s two-year statute as the appropriate one for sec-

tion 1983 actions in New Jersey. In Brown and Napier, the

Third Circuit was not troubled by any perceived ambi-

guity in Wilson as applied to New Jersey; the Court

reached its decision without hesitation. After Owens, the

Third Circuit has also not been troubled by this issue.

Cito v. Bridgewater Twp. Police Dept., 892 F.2d 23 (3d Cir.

1989) (New Jersey’s two-year statute applies to section

1983 claims).

Further, the Third Circuit’s treatment of the appropri-

\ate statute of limitations for section 1983 actions in Penn-

sylvania is instructive because Pennsylvania’s statutory

scheme is analogous to its sister state, New Jersey. Penn-

sylvania’s two-year statute of limitations now governs

Section 1983 actions. In particular, this Court is Springfield

Township School District v. Knoll, 471 U.S. 288 (1985) (per

curiam) vacated the Third Circuit’s initial judgment that

Pennsylvania’s six-year residuary statute of limitations

applied to the particular section 1983 claim at issue, 699

F.2d 137, 139 (3d Cir. 1983), and remanded the matter for

reconsideration in light of Wilson. This Court in Knoll

determined that Wilson “held that all section 1983 claims

should be characterized for statute of limitation purposes

as actions to recover damages for injuries to the person.”

471 U.S. at 289. On remand, the Third Circuit adopted

Pennsylvania’s two-year personal injury statute as the

appropriate limitations provision in section 1983 actions.

Knoll v. Springfield Township School District, 763 F.2d 584

(3d Cir. 1985). In so doing, the Third Circuit rejected

application of Pennsylvania’s residual six-year statute as

the appropriate one under Wilson. See 42 Pa. C.S.A. Sec.

5527. The Third Circuit’s conclusion in Knoll was upheld

by this Court in Goodman v. Lukens Steel Co., 482 U.S. 656

(1987) and Al-Khazaji v. St. Francis College, 481 U.S. 604,

reh. denied, 483 LI.S. 1011 (1987).

Lastly, in keeping with Sup. Ct. R. 10.1 that a petition

for a writ of certiorari will be granted “only when there

are special and important reasons therefor”, the petition

should be denied. While petitioner perceives a “conflict”

between the Third Circuit and state court decisions even

though there exists no reported New Jersey state court

opinion applying Wilson, review by this Court has tradi-

tionally been reserved for actual existing conflicts. Cf.

Brown v. Hotel & Restaurant Employers & Bartenders, 468

U.S. 491, 512 (1984). (this Court declined to decide the

constitutionality of a section of the New Jersey Casino

Control Act because the Casino Control Commission had

never applied the statute and therefore there was “no

concrete application of state law”). Moreover, petitioner’s

prediction that the Third Circuit’s decision will cause a

split of a.tnority between state and federal court systems

in New Jersey is legally impossible. A general rule of law

in New Jersey is that state courts will follow the Third

Circuit’s interpretation of 42 U.S.C. 1988, applying the

two-year statute of limitations to section 1983 actions,

since New Jersey’s courts are bound by federal court

decisions interpreting a federal statute unless the federal

decisions, themselves, are in conflict. Southern Pacific Co.

v. Wheaton Brass Works, 5 N.J. 594, 603, 76 A.2d 890, 895

(1950), cert. den. 341 U.S. 904 (1951); Urban League of

Greater New Brunswick v. Borough of Carteret, 170 N.J.

Super. 461, 469, 406 A.2d 1322, 1325 (App. Div. 1979), rev’d

on other grounds, 92 N.J. 158, 456 A.2d 390 (1983). Here,

the three reported Third Circuit decisions and the unre-

ported opinion in this case uniformly apply a two-year

statute of limitation to section 1983 actions arising in new

Jersey. These decisions bind the New Jersey state courts.

Thus, the “special and important reasons” required by

Sup. Ct. R. 10.1 for granting a petition for a writ of

certiorari do not exist, and the petition should be denied.

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| CONCLUSION

For the foregoing reasons and authorities cited, the

petition should be denied.

Respectfully submitted,

/s/ Thomas F. Quinn

Thomas F. Quinn, Esq.

(Counsel of Record)

Witson, ELser, Moskowi!7z,

EDELMAN & DICKER

Attorneys for Defendants

Joseph Marson, Douglas Baker,

Charles Murphy, Sandra Green-

berg, Jack Drakeford and

Kennedy Shaw