Opposition Brief — Sharp v. Kansas

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No. 89-1978 i MA OSEPH F. SPANIOL,

CLERK

In The —

Supreme Court of the United States

October Term, 1990

&

_

REX A. SHARP, KERRY McQuUEEN, and

JAMES H. MORAIN, as individuals,

NEUBAUER, SHARP, McQUEEN, DREILING

& MORAIN, P.A., as a firm, and ALL

OTHER LAWYERS AS A CLASS REQUIRED

BY THE STATE OF KANSAS TO REPRESENT

KANSAS INDIGENT CRIMINAL DEFENDANTS,

Petitioners,

THE STATE OF KANSAS,

Respondent.

,™

4

RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF KANSAS

La

_

Rosert T. STEPHAN

Attorney General of Kansas

Joun W. Campsect

Deputy Attorney General

Kansas Judicial Center

Second Floor

Topeka, Kansas 66612-1597

(913) 296-2215

Counsel of Record

for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-2831

eT AVAILABLE COPY

IT.

QUESTIONS PRESENTED FOR REVIEW

DID THE KANSAS SUPREME COURT ERR IN

REFUSING TO CREATE NEW CAUSES OF ACTION

FOR MONETARY DAMAGES?

DID THE KANSAS SUPREME COURT ERR IN

REFUSING TO EXPAND THE APPLICATION OF 42

USC § 1994?

ii

TABLE OF CONTENTS

Page

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pr’ & Be WP hy, +f | See ee iii

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REASONS WHY THE PETITION SHOULD BE

DENIED

I. THE DECISION OF THE KANSAS SUPREME

COURT DID NOT CONFLICT WITH ANY

OTHER STATE COURT OF LAST RESORT, ANY

UNITED STATES COURT OF APPEALS, OR THE

UNITED STATES SUPREME COURT............ 4

A. THE KANSAS SUPREME COURT DID NOT

ERR IN REFUSING TO CREATE NEW

CAUSES OF ACTION FOR MONETARY

IATL 5 0c ccancdnnechah yeaueeeeen eases 4

B. THE KANSAS SUPREME COURT DID NOT

ERR IN REFUSING TO EXPAND THE APPLI-

CATION OF 42 USC § 1994.............0.. 10

CAIIUL ARETE once cscecusedeevee th eeebaney eee 12

iii

TABLE OF AUTHORITIES

United States Supreme Court Cases

Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics,

403 U.S. 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1971)...

First Lutheran Church v. Los Angeles County,

482 U.S. 304 96 L.Ed.2d 250, 107 S.Ct. 2378 (1987) ...

Harlow v. Fitzgerald,

457 U.S. 800, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982)

Kirby Forrest Industries, Inc. v. United States,

467 U.S. 1, 81 L.Ed.2d 1, 104 S.Ct. 2187 (1984) ..

Mitchell v. Forsyth,

472 U.S. 511, 86 L.Ed.2d 411, 105 S.Ct. 2806 (1985)

Penn Central Transp. Co. v. City of New York,

438 U.S. 104, 57 L.Ed.2d 631, 98 S.Ct. 2646 (1978)

United States v. Kozminski,

487 U.S. __, 101 L.Ed.2d 788, 108 S.Ct. 2751 (1988) ....

United States v. Reynolds,

235 U.S. 133, 59 L.Ed. 162, 35 S.Ct. 86 (1914)....

Webb v. Webb,

451 U.S. 493, 68 L.Ed.2d 392, 101 S.Ct. 1889 (1981)

Will v. Michigan Department of State Police,

__ U.S. __, 105 L.Ed.2d 45, 109 S.Ct. 2304 (1989)

Williamson Planning Comm’n v. Hamilton Bank,

473 U.S. 172, 87 L.Ed.2d 126, 105 S.Ct. 3108 (1985)

United States Court of Appeals Cases

Berrios v. Agosto,

oD

Sharp, et al. v. State,

No. 88-1553 (10th Cir., May 7, 1990) ............

Page

iv

TABLE OF AUTHORITIES - Continued

Page

Vakas v. Rodriguez,

728 F. 2d 1293 (10th Cir. 1984), cert. denied, 469 U.S.

We a 5 bok a Shoes 6 wee A cai ddeus Kdgh eae Caneeedy 7

Williamson v. Vardeman,

G74 F.2d 1211 Wily Cir. 1962). .... 2. cc ccccccwveveenes 11

United States District Court Cases

Lee v. McManus,

586 F.Supp. 236 (D. Kan. 1984)............8seeeeeeeee 7

Sharp, et al. v. State, et al.,

No. 88-1001-K (D.Kan March 16, 1988)............... 3

State Court Cases

Fleming v. Etherington,

227 Kan. 795, 610 P.2d 592 (1980) ............0000-5.- 8

Landrum v. Taylor,

217 Kan. 113, 535 P.2d 406 (1975) ........ccceecceeeee 8

Sharp, et al. v. State,

245 Kan. 749, 783 P.2d 343 (1989) ..............665- 4,5

Sharp, et al. v. State,

Seward County Case No. 88-C-33

(September 14, 1988, Petitioners App. 2a-2b) ......... 4

Sharp, et al. v. State,

Seward County Case No. 90-C-14.................5.. 4

State v. Rush,

46 N.J. 399, 217 A.2d 441 (1966) .............----6-. 11

State ex rel Stephan v. Smith,

242 Kan. 336, 747 P.2d 816 (1987).......... 2, 3, 10, 11

Vv

TABLE OF AUTHORITIES - Continued

Page

Swanston v. Cuna Mutual, Ins.,

7 Kan.App.2d 28, 636 P.2d 1368 (1981)............... 8

Ventures in Property I v. City of Wichita,

223 HAM. GIG, SPS FOG G71 CUSZS) ..... irene cece eees 10

Wheat v. Finney,

230 Kan. 217, 630 P.2d 1160 (1961).................. 10

United States Constitution

as Ne Cae Ree 4,8,9

Soe. Ga GIS PIES 6 xk cucacccnececSunehaunee 10, 11

Federal Statutes

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ee | re er rere rreror ery rrr 5

CB Sie Oe ME hu hn 5 06s a een sucess wenene eases menses 5

ee err er eer rere ree a 3, oe

State Statutes and Regulations

ee eee 1

PE I a kien ceadedacdacnes teceehuenscuannaaees 10

8 MT eT reer Terre TT errr eT 10

err rere rrr ee erT er ert 2

Secondary Authorities

Cook & Sobieski, Jr., Civil Rights Action, 14-32 and

th he a, PETE eee 7

No. 89-1978

.

~~.

In The

Supreme Court of the United States

October Term, 1990

—~—

REX A. SHARP, KERRY McQUEEN, and

JAMES H. MORAIN, as individuals,

NEUBAUER, SHARP, McQUEEN, DREILING

& MORAIN, P.A., as a firm, and ALL

OTHER LAWYERS AS A CLASS REQUIRED

BY THE STATE OF KANSAS TO REPRESENT

KANSAS INDIGENT CRIMINAL DEFENDANTS,

Petitioners,

THE STATE OF KANSAS,

Respondent.

a.

Ww

RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF KANSAS

»

_

STATEMENT OF THE CASE

This appeal is from the second of Petitioners’ three

suits against the State of Kansas. Through these actions,

Petitioners have sought monetary damages allegedly sus-

tained as a result of the Indigent Defense Services Act,

KSA 22-4501 et seq. (Weeks) as amended, its statutory

precedent, and the rules and regulations promulgated

pursuant to the Act. Petitioners are attorneys at law, as

well as a professivnal association of attorneys who were

appointed by state district courts to represent indigent

criminal defendants. They were compensated pursuant to

the Act.

The origins of this case are found in the December 15,

1987 opinion of the Kansas Supreme Court in the case of

State ex rel Stephan v. Smith, 242 Kav 336, 747 P 2d 816

(1987). In that case, Chief Justice Miller, writing for a

unanimous court, reversed century old precedent and

found that attorneys appointed to defend indigent crimi-

nal defendants do have a right to compensation. It was

truly a landmark decision for the state. It recognized

attorney services as property protected by the Constitu-

tion for the first time in Kansas. Petitioners nad abso-

lutely nothing to do with this change in the law.

Prior to Smith the state was not constitutionally obli-

gated to pay any compensation to indigent criminal

defense attorneys. However, a system had been estab-

lished whereby local judges appointed attorneys to serve

as counsel and those attorneys were compensated by the

State Board of Indigent Defense Services. Petitioners’

recital of the rates paid to such attorneys is correct, but

incomplete. KAR 105-5-8 (2)(c) found in Smith at Kan 346

did allow the Board to provide compensation of up to

$5,000 for exceptional cases. In addition, amounts over

$5,000 could be paid “ . . . if warranted by the extreme

complexity of the case”.

As to Petitioners’ harsh statements concerning the

Board, these are completely denied. The Board is com-

posed of attorneys, legislators, and citizens who do their

best to assure indigent defendants receive quality legal

representation within the budget approved by the legisla-

ture. It is true that in January of 1987 the Board’s budget

did suffer under a mid-fiscal year, state wide, budget cut.

Court appointed counsel's billings were cut by 6%. Those

hard times were necessitated by the fact that the state was

broke. It is further true that the salaries of the full-time

public defenders in Topeka, Wichita, and Junction City

were not cut. Those salaries, which started under $25,000,

were not reduced; instead, a hiring freeze was instituted

and office operating budgets were also cut.

The Kansas Legislature meets from January to April

each year. The state’s fiscal year begins on July 1 and

ends on June 30 of each year. The Smith decision did

allow the state legislature the time needed to double the

indigent defense system’s budget, create a voluntary sys-

tem of court appointments, and expansion of the public

defender system.

On January 4, 1988, three weeks after the Smith deci-

sion, Petitioners filed their Class Action Complaint and

Mandanus Proceeding against the State of Kansas in the

United States District Court for the District of Kansas.

This action was subsequently dismissed without preju-

dice on the basis of the 11th Amendment Immunity. The

dismissal was recently upheld by the Tenth Circuit Court

of Appeals. (Sharp, et al v. State, et al., No. 88-1001-K

(D.Kan March 16, 1988), affirmed, Sharp, et al. v. State, No.

88-1553 (10th Cir., May 7, 1990).)

On March 16, 1988, Petitioners filed a Class Action

Petition against the State of Kansas in the State District

Court of Seward County, Kansas. Summary judgment

was entered in favor of Kansas. The primary basis of the

state’s argument was that the plaintiffs were suing the wrong

defendant under numerous theories of law which either did

not exist, or did not apply to the State of Kansas. (Sharp, et al.

v. State, Seward County Case No. 88-C-33.)

On December 8, 1989, the Kansas Supreme Court

affirmed the district court’s judgment. Chief Justice Miller,

again writing for a unanimous court, found that Petitioners

had not stated a cause of action in the district court. Further,

the court would not allow Petitioners to raise their express

inverse condemnation theory for the first time at the appel-

late level. (Sharp v. State, 245 Kan. 749, 783 P.2d 343 (1989),

rehearing denied March 14, 1990.)

On January 18, 1990, Petitioners again filed a Class

Action Petition against the State of Kansas, in the District

Court of Seward County, Kansas. Petitioners, in this

action, seek monetary damages under a Fifth Amendment

_inverse condemnation theory, as well as a state claim of

"unjust enrichment. (Sharp, et al. v. State, Seward County

Case No. 90-C-14.)

REASONS WHY THE PETITION SHOULD BE DENIED

I. THE DECISION OF THE KANSAS SUPREME

COURT DID NOT CONFLICT WITH ANY OTHER

STATE COURT OF LAST RESORT, ANY UNITED

STATES COURT OF APPEALS, OR THE UNITED

STATES SUPREME COURT.

A. THE KANSAS SUPREME COURT DID NOT

ERR IN REFUSING TO CREATE NEW CAUSES

OF ACTION FOR MONETARY DAMAGES.

Petitioners’ position in this matter is that, if they

were wronged, there must be a monetary remedy. Injunc-

tive remedies are insufficient.

The Respondent’s position is best stated in the Sharp,

supra, Opinion at Kan. 754-755, where the Kansas

Supreme Court held:

In Smith, we found that the inequities under the

old system of appointment and limited remu-

neration had reached such a point as to offend

constitutional rights. We directed that the sys-

tem be changed within a very short period of

time, and the change has occurred. We have

found no case, and none has been cited, which

mandates the award of monetary damages in

such a case in addition to equitable relief.

Petitioners could have sued any number of state offi-

cials for their monetary remedy under 42 USC § 1983.

But, of course, such suits would have been blocked by the

doctrine of qualified immunity. Harlow v. Fitzgerald, 457

US 800, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982); Mitchell v.

Forsyth, 472 US 511, 526, 86 L.Ed.2d 411, 105 S.Ct. 2806

(1985). Thus, they chose to sue the state directly under 42

USC § 1983 and § 1985(3). Further, they attempted a

“Bivens” action against the State of Kansas, and sought

relief under 42 USC § 1994, as well as a state cause of

action. At the appellate court level, they attempted to add

a new theory, “express inverse condemnation”.

As to the 42 USC § 1983 and § 1985(3) claims, these

have been dropped by Petitioners. The basis of this aban-

donment was Will v. Michigan Department of State Police,

___ US __, 105 L.Ed.2d 45, 109 S.Ct. 2304 (1989).

As to the “Bivens” action, Petitioners at the state,

district, and appellate court levels maintained that even if

they could not sue the Respondent State of Kansas pur-

suant to 42 USC § 1983, 42 USC § 1985(3), 42 USC § 1994,

or under a state theory of unjust enrichment, that it was

EO —E——————

essential that they be able to bring a “Bivens” action

against the state. This theory was based on a belief that

there is an implied cause of action based solely on alleged

constitutional violations.

There is no direct cause of action based solely upon

the amendments to the Constitution when said action is

brought against state defendants. Petitioners have failed

to procure any precedent establishing such a cause of

action.

The federal courts have long been faced with causes

of action based solely upon the Constitution. With the

limited exception of “Bivens” actions, the federal courts

have not allowed such cases to be prosecuted. Bivens v.

Six Unknown Named Agents of the Federal Bureau of Nar-

cotics, 403 U.S. 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1971).

Bivens actions are not allowed against state and local

officials or their units of government. Berrios v. Agosto,

716 F.2d 85, 89 (1st Cir. 1983).

Constitutionally implied causes of action have

been found to be unavailable to plaintiffs seek-

ing to hold state and local officials liable for

their unconstitutional conduct under the color

of state law. The lower courts have uniformly

held that where plaintiffs have the statutory

remedy of 42 USC § 1983 available to them,

implied causes of action under the Bivens doc-

trine are-precluded .. . In Berrios v. Agosto, the

Court of Appeals for the First Circuit expressly

held that a plaintiff whose section 1983 action

was barred by the doctrine of absolute legisla-

tive immunity could not circumvent the limita-

tions of section 1983 by bringing suit under the

doctrine of Bivens. ’

Cook & Sobieski, Jr., Civil Rights Action, at 14-32 and

14-33 (1987).

The federal district court of Kansas, as well as the

Tenth Circuit Court of Appeals, have followed the nation

and do not allow Bivens actions against the State or its

employees. Vakas v. Rodriguez, 728 F. 2d 1293 (10th Cir.

1984); Lee v. McManus, 589 F.Supp. 633 (D. Kan. 1984).

Constitutional amendments do not create a cause of

action ex proprio vigore. Plaintiffs’ cause of action based on

these amendments alone, without statutory support,

failed to state a claim upon which relief could be granted.

As to Petitioners’ “express inverse condemnation”

theory, this was raised by Petitioners for the first time in

their brief to the Kansas Supreme Court. Petitioners did

not raise this theory in their district court pleading. They

did not raise this theory in their written opposition to the

Respondent’s district court motion to dismiss. (Peti-

tioners incorrectly states that defendants filed a motion

for judgment on the pleadings in district court.) They did

not raise this theory in their oral argument against

Respondent’s district court motion. They did not even

raise the issue in their Docketing Statement tu the Kansas

Appellate Courts which requires they identify their legal

theories. It was not until they filed their brief with the

state appellate court that Petitioners either advanced the

theofy of express inverse condemnation or cited the pre-

cedent upon which they rely to advance the theory.

In Kansas, a legal theory cannot be asserted for the

first time on appeal. The Kansas Supreme Court held in

Landrum v. Taylor, 217 Kan. 113, 120, 535 P.2d 406 (1975),

“Where it does not affirmatively appear that a question

raised on appeal was presented for determination by the

trial court, this court does not consider it on review”. See

also Fleming v. Etherington, 227 Kan. 795, syl. J 7, 610 P.2d

592 (1980); Swanston v. Cuna Mutual Ins. Society, 7 Kan.

App. 2d 28, 31, 636 P.2d 1368 (1981).

The Court should not hear Petitioners’ express

inverse condemnation arguments. They have not per-

fected their 28 USC § 1257 jurisdiction on this issue. The

Court should continue its long-settled rule of jurisdiction

and not consider an issue which was not adequately

presented in the state system. Webb v. Webb, 451 US 493,

496-497, 68 L.Ed.2d 392, 101 S.Ct. 1889 (1981).

Even if Petitioners could present their new theory, it

would not justify the reversal of the Kansas Supreme

Court. This case does not present an inverse condemna-

tion question, express or otherwise.

In order to present a 5th Amendment inverse con-

demnation question, Petitioners would have to allege a

complete “taking” which could not be addressed by a

state procedure. First Lutheran Church v. Los Angeles

County, 482 US 304, 311, 312 n.6, 96 L.Ed.2d 250, 107 S.Ct.

2378 (1987). Petitioners’ district court petition does not

allege a complete “taking”, only inadequate compensa-

tion. At best, Petitioners plead that they had suffered a

diminution in the value of their property. (Petition, {7 14

and 16, Petitioners’ App. 4d, 4e.)

¥

If the Court were to adopt Petitioners’ theory, which

is based on land use regulations of real property, then it

must consider that allegations of this nature, standing

alone, do not state a 5th Amendment “taking”. In Penn

Central Transp. Co. v. City of New York, 438 U.S. 104, 130, 57

L.Ed.2d 631, 98 S.Ct. 2646 (1978) the Court held:

Appellants concede that the decisions sustaining

other land-use regulations, which like the New

York City law, are reasonably related to the pro-

motion of the general welfare, uniformly reject

the proposition that diminution in property

value, standing alone, can establish a ‘tak-

We... «

Further exhaustion of state administrative remedies

is necessary before a “taking” can be said to have

occurred. Williamson Planning Comm'n v. Hamilton Bank,

473 U.S. 172, 194-195, 87 L.Ed.2d 126, 105 S.Ct. 3108

(1985). Petitioners never alleged that they had appealed

the determination of compensation by a district court

judge, or the State Board of Indigent’s Defense Services,

or that a state law inverse condemnation proceeding was

inadequate. These are prequisite conditions to maintain-

ing a constitutional action under the First Lutheran Church

rationale. Even then a recognized cause of action would

be required, such as 42 U.S.C. 1983, Williamson, supra, at

U.S. 182, or a government condemnation action, Kirby

Forrest Industries Inc. v. United States, 467 U.S. 1, 3, 81

L.Ed.2d 1, 104 S.Ct. 2187 (1984) or a recognized state law

cause of action, First Lutheran Church, supra, at U.S. 308.

Petitioners have met none of these requirements.

Finally, Petitioners have not met the conditions pre-

cedent for the filing of a state inverse condemnation

action. The Kansas Supreme Court has held: ’

10

Inverse condemnation actions are in the nature

of a suit on implied contract. When a public

entity appropriates and uses property or rights

therein, without compensating the owner, an

implied contractual obligation arises to pay the

owner reasonable value of the property or rights

taken without compensation.

Ventures in Property I v. City of Wichita, 225 Kan. 698,

705-706, 594 P. 2d 671 (1979).

Claims against the State of Kansas based on implied

contracts must utilize the procedures provided in K.S.A.

46-903 and 46-907. Petitioners have failed to utilize said

procedures. They did not present their claim to the Joint

Committee on Special Claims prior to the filing of this

action. That is a condition precedent which cannot be

ignored. Wheat v. Finney, 230 Kan. 217, 630 P.2d 1160

(1981).

Petitioners should not be allowed to raise the issue of

express inverse condemnation. Even if they could, it

would not be grounds for the reversal of the Kansas

Supreme Court.

B. THE KANSAS SUPREME COURT DID NOT

ERR IN REFUSING TO EXPAND THE APPLI-

CATION OF 42 USC § 1994.

In the case of State, ex rel. Stephan v. Smith, supra, at

Kan. 378, the Kansas Supreme Court specifically

addressed the Thirteenth Amendment issue raised by

Petitioners. The Kansas Court held that, without

imprisonment, there was no violation of the Thirteenth

Amendment. Other courts, some of which were cited in

the Kansas opinion, have, in addition, held there was no

11

Thirteenth Amendment violation for imposing upon the

private Bar a duty to represent indigent defendants. See

Williamson v. Vardeman, 674 F.2d 1211, 1214 (8th Cir. 1982).

42 USC § 1994 was created in order to enforce the

Thirteenth Amendment. U.S. v. Reynolds, 235 U.S. 133,

143, 59 L.Ed. 162, 35 S.Ct. 86 (1914). Without a Thirteenth

Amendment violation, there can be no 42 USC § 1994

violation.

‘The New Jersey Supreme Court in State v. Rush, 46

N.J. 399, 217 A.2d 441 (1966), considered the issue of 42

USC § 1994, and found it not to apply to attorneys who

were required to serve in indigent defense systems. There

is no precedent in the nation sustaining a 42 USC § 1994

violation in cases such as the Petitioners.

Petitioners’ primary objection to the Kansas Supreme

Court’s ruling is based on the case of United States v.

Kozminski, 487 U.S. ¢__, 101 L.Ed.2d 788, 108 S.Ct. 2751

(1988). This case involved two mentally retarded, aged,

farm workers who were forced to labor seven days a

week, s»venteen hours a day, for no pay. These unfortu-

nates were isolated from their families, threatened with

institutionalization, and held on the farm by physical and

psychological force. To compare these individuals with

the Petitioners is ridiculous. To promote the idea that the

Kozminski case would serve to overturn State, ex rel. Steph-

an v. Smith is wrong.

In Kozminski the Court specifically recognized that

the state may compel its citizens to perform civil dues. Id.

at .L.Ed.2d 805. No court, federal or state, has ever

accepted Petitioners’ slavery theory. It should not be

2 wha

12

adopted now. The reasoning of the Kansas Supreme

Court was sound and it should be upheld.

sa

a4

CONCLUSION

The Respondent respectfully submits that the Writ of

Certiorari prayed for in this action be denied for the

following reasons: (1) The Kansas Supreme Court’s deci-

sion did not conflict with any other state court of last

resort, or any United States Court of Appeal, or this

Court; (2) The Kansas Supreme Court did not err in

refusing to create new causes of action for monetary

damages; (3) The Kansas Supreme Court did not err in

refusing to expand the application of 42 USC § 1994.

Respectfully submitted,

Rosert T. STEPHAN

Attorney General of Kansas

JOHN W. CAMPBELL

Deputy Attorney General

Kansas Judicial Center

Second Floor

Topeka, Kansas 66612-1597

(913) 296-2215

Counsel of Record for Respondent