Brief in Opposition to Petition for Writ of Certiorari — Estes v. Camden Fire Insurance Ass'n of General Accident Fire & Life Assurance Corp.

LIBRARY. -

SUPREME COURT. U. &

> We. 994

Supreme Court ‘of the United States

OCTOBER TERM, 1967 .

SHIRELEY JEAN ESTES; - LISHA DAWN ESTES;

SHAWNA ANNETTE ESTES AND

a DAVID LAIRD ESTES, |

| See b scapes

va.

CAMDEN - FIRE INSURANCE ASSOCIATION OF

GENERAL ACCIDENT FIRE AND LIFE ASSUB-

ANCE CORPORATION LIMITED; STATE AUTO-

- MOBILE. MUTUAL INSURANCE COMPANY ;

FRANK M. GUSWEILEE; STATE OF OHIO AND

UNITED samen d OF AMERICA,

nanan.

ON. PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF iain

: FOR THE SIXTH CIRCUIT - 5

> ES —

BRIEF OF RESPONDENT JAMES A. RHODES.

+ GOVERNOR, STATE OF OHIO

IN OPPOSITION

Wuuum B. Saxse

Attorney General, State of Ohio

Cuarizs 8. Lopzman

Chief Counsel

- James D: Nzwoomer |

Assistant Attorney General

State House Annex,

, Columbus, Ohio 43215

Attorneys for Respondent

James A. Ruopzs, Governor,

State of Ohio

OOOO

MIDWEST LAW PRINTERS AND PUBLISHERS, INC. Columbus, Ohio 42216

Page

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Statement of the case ..... bu catuuuwends heeeuauicauans >

SE bs bn 03-000 0eb deh eukeadecnsaes Sere ee Tee

Bn Bre CE OE GIO ob. nbc bine es dacccees: 3

'B. No important issues for consideration....... 3

. ©. There is no need to invoke the Court’s

power of supervision .......... ptetegtewven’ 4

D. The suit is actually one against the State

of Ohio and was properly eee

Conclusion ......... lessons ECURSEaCeeuereherennees 5

TABLE OF CASES

Clark v. State of Washington, 366 F 2d 366 :

(9th Cir. 1966) ..... sik ie GEG Mae ar mnce enolate aimee 5

Hewitt v. City.of Jacksonville, 188 F 2d 423 :

(Sth Cir. 1951) .......... Shbeveetetcaneneeieied 5

Monroe v. Pape, 365 U.S. 167 SEE cual bencuscnnan .8, 5

Sires v. Cole, 320 F 2d 877 (9th Cir. 1963) ...... Soot

Williford v. People of California, 352 F 2d 474 |

(9th Cir. 1967) ............0 ee Oe 5

TABLE OF CONSTITUTIONAL. PROVISIONS

Fourteenth Amendment, Constitution of the

NE ery ewe ness 2

4,

TABLE OF STATUTES :

. 28 U.S.C., Section 1254 ...........0.. bwuvvvesssééc 2

28 U.S.C., Section 1257 ..... iiscwMivindsiadhs iii os

42 U.S.C., Section 1983 (Civil Rights. Act of 1871).2, 4, 5

Title 39, Revised Code of Ohio ........ aduamenneeuns 2

IN THE

Supreme Court of the United States.

OCTOBER TERM, 1967

No. 994

SHIRELEY JEAN ESTES; LISHA DAWN ESTES;

SHAWNA ANNETTE ESTES AND

DAVID LAIRD ESTES,

Petitioners, |

vs.

’ CAMDEN FIRE INSURANCE ASSOCIATION OF

GENERAL ‘ACCIDENT FIRE AND LIFE ASSUR-

ANCE CORPORATION LIMITED; STATE AUTO-

MOBILE MUTUAL IN SURANCE COMPANY;

_ FRANK M. GUSWEILER; STATE OF OHIO AND.

sina STATES OF AMERICA,

_ Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT |

BRIEF OF RESPONDENT JAMES A. RHODES

GOVERNOR, STATE OF OHIO

IN OPPOSITION

J URISDICTION”

Petitioner has mistaken the statutory ground upon which

jurisdiction may be invoked in that 28 U.S. Code, Section -

1257 (3) specifically refers to review of judgments rendered

fn nnd asi aA TORS Nn AA He dlbiea BP etlt SRG oh te ein ee

by the highest court of a state. Review by writ of certiorari

of cases in the Courts of Appeals is B. Providied in 28 US.

Code, Section 1254 (1).

—QUESTION PRESENTED

- Does dismissal by the District Court of petitioner’s com-

plaint against respondent, James A. Rhodes, Governor of

the State of Ohio present a proper question for review

by this Court?

STATEMENT OF THE CASE

_On April 20, 1966 Petitioners filed a lengthy complaint

in the United States District/ Court for the Southern Dis- °

trict. of Ohio, Western Division. Named as one of five

parties-defendant was Respondent James A. Rhodes, Gov-

ernor of the State of Ohio. (Pet. for Cert. p. 4-23). Statu-

tory jurisdiction was claimed to exist pursuant to 42 U.S.

Code Section 1983. Throughout the complaint numerous

allegations were made relating to the enactment and oper-

ation of laws by and in the State of Ohio pertaining to the

liability and casualty insurance business. According to the

' various allegations, these laws of the State of Ohio, pri-

marily Title 39 Revised Code of Ohio, are unconstitutional

because they violate the Fourteenth Amendment and permit

violation of the Civil Rights. Act of. 1871 specifically 42.

U.S. Code Section 1983. (Pet. for Cert. App. A) These laws

are alleged to violate Petitioners’ federal rights in the fol-

lowing respects; by inhibiting the right to contract freely,

in that they permit the infliction of cruel and. inhuman

punishment, and that they ensourage taxation without rep-

resentation.

The District Court, upon motions filed and ner dis-

missed the complaint on the ground that it failed to state

a claim upon which relief could be granted. (Pet. for Cert.

;

3

App. B) The United States Court of Appeals for the Sixth

Circuit affirmed the judgment of the District Court. ue

for Cert. App C)

- Petitioners now seek review by the Supreme Court of

the United States on writ of certiorari which Respondent

opposes herein.

ARGUMENT

A. No Conflict of Authority .

Petitioners have not cited any authority or even argued

that the decision they seek to have reviewed is in conflict

with any decision of another Court of Appeals or this Court

on the same matter.

Neither have Petitioners argued that an inapertonk state

question has been decided in a way which is inconsistent or

in conflict with applicable state law.

B. No Important Issues for Consideration

The only issue in the case is whether Petitioners’ com-

plaint stated a claim upon which relief could be granted.

The District Court and the Circuit Court of Appeals deter-

mined that it- did not. However, such determination was ,

obviously based upon fatal deficiencies of the complaint

itself and not because the acts alleged were also in clear

violation of state or local law as in Monroe v. Pape, 365

U.S. 167, 5 L. Ed. 2d 492, 81 Supreme Court 473.

In the instant case no actionable mischief or misconduct

is even alleged which could be attributed to Respondent.

The compaint consists primarily of scurrilous charges and

conclusions. The determination that such allegations failed

to state a claim simply cannot be ballooned by Petitioners

into a substantial, novel or important question of great

public moment worthy of this Court’s consideration on

review. '

C. There Is No Need to Invoke The Court’s Power of

Supervision

‘A cursory reading of the complaint and the decision of

the District Court compels the conclusion that dismissal

and the subsequent affirmance was proper. Even, though the

_ District Court did comment on charges made-by Petitioners

in various memoranda, it would not appear under the cir-

cumstances. that this constitutes a substantial departure

from the usual and accepted course of judicial proceedings.

The District Judge also concluded that ‘‘this entire action

represents the personal: vendetta of counsel for the plain-

tiffs against the insurance industry in general and against

the named defendant companies in particular, and against

the defendant Common Pleas Judge, rather than a sincere

and bona fide attempt to recover monetary damages for

plaintiffs.’’ (Pet. for Cert. p. 36). That this clearly is an

accurate assessment of the situation is evidenced by the

complaint and corroborated by petitioners’ statements in

the ‘‘Reasons for Granting the ee nee for Cert. p.

4-29)

Undoubtedly thove has been a departure from the ac-

cepted and usual course of judicial proceedings but such

-is attributable to Petitioners and not to the District Court,

the Circuit Court or any of the Respondents.

D. The Suit Is Actually One Against The State of Ohio

and Was Properly Dismissed

With regard to this Respondent there is an additional

reason why the writ should be denied: The’ allegations

against the named Respondent are actually directed against

- State of Ohio which is not subject to suit. The doctrine that

states and its agencies are not subject to suit has often

been applied by Federal Courts in actions under the Civil

Rights Act, particularly 42 U.S. Code, Section 1983 where

&°

5

it i$ consistently held that a state or municipality is not a

_*person’’ within the ambit of Section 1983. Monroe v.

Pape, 365 U.S. 167- (1961), Sires v. Cole, {9th Cir. 1963),

320 F 2d 877, Hewitt v. City of Jacksonville, 188 F 2d 423,

(5th Cir. 1951) cert. denied 342 U.S. 835,;.Clark v. State of.

Washington, 366 F 2d 678 (9th Cir: 1966), Williford v. -

People of California, 352 F 2d 474 (9th Cir. 1967). a

CONCLUSION

Because Petitioners have shown no special or important —

reasons for granting the writ,. Respondent submits that the

Petition for Certiorari should be denied. <a

; Respectfully submitted,

-Wiium B. Saxe |

Attorney General, State of Ohio

‘Cuarues S. Lopeman

Chief Counsel

James D. NEwcoMErR

Assistant Attorney General

' State House Annex,

‘Columbus, Ohio 43215

Attorneys for Respondent

- James A. Ruopes, Governor, -

. State of Ohio

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