Brief for the Respondent in Opposition — O'Bryan v. Chandler

In the

Supreme Court of the United States

OcToBeR TERM, 1968

No. 1011

W. H. Pat O’Bryan,

Petitioner,

VERSUS

STEPHEN S. CHANDLER, Chief Judge of the United States

District Court for the Western District of Oklahoma,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

States Court oF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of Honorable Edwin Langley of the Dis-

trict Court is not reported. It is entitled “Order” and is set

out as Appendix C to the Petition. It contains the findings

of the District Court, the order overruling Petitioner’s

Motion to vacate the order disbarring him and the order

dismissing the action.

The opinion of the Court of Appeals which Petitioner

seeks to have reviewed here is entitled In the Matter Per-

taining to W. H. Pat O’Bryan, Number 9563. It is reported

in 399 F.2d 916 and is set out as Appendix B to the Pe-

tition. The Petition is incorrectly entitled in this Court

O’Bryan v. Chandler, Chief Judge.

nln

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition. |

QUESTION PRESENTED

Whether the notice of appeal was filed within the

time required by law so as to vest the Court of Appeals

with jurisdiction to review the Order and Judgment of the

District Court.

The other questions presented by Petitioner are

frivolous and do not warrant discussion.

STATUTE INVOLVED

The pertinent provisions of law are 28 U.S.C. 2107 and

Federal Rules of Appellate Procedure, Rule 4.

STATEMENT

The Judgment of the Court of Appeals, review of

which is sought here, was titied in that Court In the

Matter Pertaining to W. H. Pat O'Bryan, Number 9563.

Petitioner has incorrectly and improperly entitled his Pe-

tition for Writ of Certiorari in this Court as W. H. Pat

O’Bryan v. Stephen S. Chandler, Chief Judge of the United

States District Court for the Western District of Oklahoma.

Respondent, Judge Chandler, was not a party to the

action in the District Court nor in the Court of Ap-

peals. However, since he is improperly designated by Pe-

titioner as the Respondent and is the only person served

with notice of the filing of the Petition for Writ of Certi-

orari, it is considered incumbent on him, in the interest of

justice, to oppose the Petition.

—

Petitioner does not deny that no notice of appeal was

given within thirty days as required by 28 U.S.C. 2107 and

Federal Rules of Appellate Procedure, Rule 4. Counsel

fatuously argue that such jurisdictional requirement

should not apply to Petitioner.

Judge Langley, the trial judge, in his Order, Appendix

C, page 2, found from an examination of the records of the

court that Petitioner was disbarred in 1958 at a properly

noticed hearing by order signed by all of the judges of the

court, that appropriate entries were made on the various

pertinent dockets and that no er was taker. by Pe-

titioner from this order.

Judge Langley also found that in 1959 the court de-

nied an application of Petitioner to vacate the order of dis-

barment and restore his name to the roll of attorneys; that

an appeal was taken from this order which was dismissed

by the Court of Appeals because the Notice of Appeal was

not timely filed, O’Bryan, O’Bryan & O’Bryan v. Harrison,

Trustee, 274 F.2d 831 (C.A. 10, 1959).

From the foregoing it is clear that *he disbarment

Judgment is res judicata both by reason of the failure to

appeal from the original Order of disbarment in 1958 and

the dismissal of Petitioner’s untimely appeal from the 1959

Order denying his Motion for reconsideration and vacation

of the Order of disbarment.

It seems proper, under the circumstances, to also cali

to the attention of the Court that Petitioner requested and

was granted a separate open trial before The Oklahoma

ee

a

Bar Association upon the same charges and that upon the

record so made the Supreme Court of Oklahoma disbarred

him by Opinion reported as State of Oklahoma ex rel.

Oklahoma Bar Association v. O’Bryan, 385 P.2d 876, cert.

denied 376 U.S. 649, 11 L.Ed.2d 980, 84 S.Ct. 983. In the

opinion the Supreme Court of Oklahoma stated, at page

890:

“We conclude that the evidence in this case is suf-

ficient to overcome the presumption that respondent

is innocent and to establish to a reasonable certainty

that the charge against him is true.”

It thus appears from the record before this Court that

not only was Petitioner’s Notice of Appeal to the Court of

Appeals untimely, but that the matter sought to be reliti-

gated in the District Court was res judicata by final judg-

ments of the highest Federal and State Courts.

The decision of the Court of Appeals which Petitioner

sets out as Appendix A to his Petition entitled O’Bryan

v. Stephen S. Chandler, in his individual capacity, Number

9563, was improperly titled and erroneously entered by

that court, the error having been induced by counsei for

Petitioner who misled the court as to the facts. No counsel

appeared in opposition to call the improper presentation to

the attention of the court.

When Judge Chandler called the error to the at-

tention of the court and the Oklahoma Bar Association

appeared amicus curiae and presented the true facts, the

opinion was withdrawn and the court entered the judg-

ment, Appendix B to the Petition, properly titled and

numbered, dismissing the untimely appeal.

a

This Brief in Opposition to the Petition is filed to pre-

vent this Court from being similarly misled by the im-

proper designation of the case here and the confusing,

burdensome, irrelevant, immaterial and scandalous matter

which counsel for Petitioner have set out in the Petition

in direct violation of Rule 40.

There are other excellent reasons for opposing the

Petition. If the Court should be inclined to seriously con-

sider the Petition, the matter should be called to the at-

tention of the Oklahoma State Bar so that counsei who

appeared and presented the matter in the Court of Appeals

may oppuse it.

However, Respondent believes that it will be clear to

the Court that the decision below is correct, that there is

no conflict of decisions involved and that there is no im-

portant question of Federal Law to be settled.

CONCLUSION

For the foregoing reasons, it is submitted that the Pe-

tition should be denied.

Respectfully submitted,

Cart L. SHIPLEY

1204 National Press Building

Washington, D. C. 20004

Counsel for Respondent

of Counsel:

SHIPLEY, ACKERMAN & PICKETT

February 24, 1969