Petition for Writ of Certiorari — Delia v. Court of Common Pleas of Cuyahoga County

LIBRARY «. ie Snes

“PREME COURT. Us & at 28 1969

SOHN TAM, cLeRK

Inthe 8 Supreme Court of the United States |

OCTOBER TERM, 1969...

No $94

CHARLIE DELIA,

I aa Petitioner,

COURT. OF COMMON PLEAS OF CUYAHOGA COUNTY,

; | SHAKER AIR CONDITIONING CO.,

ao - Respondents.

—

: "PETITION FOR A WRIT OF CERTIORARI

ee To the United States Court of Appeals

For the | Sixth Circuit.

ee M. Rose, |

; 940. Leader Building,

I ae: _ Cleveland, Ohio 44114,

Pie ei, ALAN M. Wotk,

— | 628 Keith: Building,

Cleveland, Ohio 44115,

.Epwin F. Woopte,

— 628 Keith Building, .

Cleveland,.Ohio 44115,

Attorneys for Petitioner.

°

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OWIO—TEL. (216) 621-8647 \

es

-

Ps

ate TABLE OF CONTENTS.

a

‘Opbxions * 2 >

Justicia .....\.02-----.--- a a ica

Reasons. for’Granting NR Saleen

1. Both the due process mandate and the equal

protection'mandate of the Fourteenth-Amend-

ment require the’ judicial department of the

state, no less than it does the executive and the

#4 — legislative departments, to accord to each liti-

gant the equal protection of the law by as-.

suring him the right to a determination of his

“ease in accordance with the establishedand un-

~~ disputed law. of the state applicable thereto _-

2. This Court has never declared that under no

"circumstances can a litigant claim and establish

= _. a deprivation of due process of law and of the

a equal protection of the law resulting from the’

substantive action of a state court. The de-

liberate refusal of the state court to follow un-

disputed state law defining the necessary ele-

ments of a éause of action, as set forth in the

complaint herein, affirms a consequent depriva-

tion of constitutional rights with respect to.

which the plaintiff is entitled to a trial --~-

Conclusion —.....—..----_--.---~---~-+--~-.---

Appendix: . }

? Opinion of the United States District Court for

the Northern District of Ohio, Eastern Division

- Opinion of District Court on Motion for Recon-

sideration __-----+--------------+-------+

Opinion and Order of the United States Court of

Appeals for the Sixth Circuit --_-----_----

13

19

sQ |

, - a EC cz .

_— ‘TABLE OF AUTHORITIES. _ |

Cases.

American Express Co. vs. Commonwealth of Ke

tucky, 273 U.S. 269; 47 Supr. Ct. 353; Pennoye

ve. Neg, 95 US. 114 x..-.....--.- Aicallanacecpnasancs . 20

American ‘Railway Express Co. vs. Colemonoealth \

of Kentucky, 273° U.S. 269; 47 Supr. Ct. 353 \

0

_ Beck vs. Washington, 369 US. 541; 82 Supr. Ct. 955

Brinkerho#-Fort Trust & Savings. Co. vs. Hill, 281 |

U.S. 673; 50 Supr. SOR ne Se

Chicago Life Inswrance Co. vs. Cherry, 244 U. S. 20;

Be SE oho bke becanbanesnuasuoces —

Corrigan vs. Buckley, 271 U.S. 323; 46 Sipe. cA. 521

.Dykeman vs. Johnson, 88 OS. 126; 93 N.E. 626

(1910) Sci ss il cchcnis esac alee cin eC lia call

England vs. Louisiana ‘State Board of Medical Ex- \

aminers, 375 U.S. 411; 84.Supr. Ct, 461 ________

Fish, J. T., & Co. vs. States Coal'Co., 70 O.L.A. 585;

129 N.E. (2d) 657 (1954) 2.

McGovern vs. City of New York, 229 US. 363; 33

SR Te is eth ee phinn ecdem tw restinarecielie cece

Milwaukee Electric Railway and Light Co. vs. State

of Wisconsin ex rel. City of Milwaukee, 252 U.S.

100; 40 Supr. .Ct. 306; 10 A.L.R. 892 ----_-----

Schroeder vs. City of New bie 371 U.S. 208; 83

Supr. BR GI cu esacasatiioitveeateain eiasacpcalnarareacanceos ices

Snowden vs. Hughes, 321 U.S. 1; 64 Supr. Ct. 397. __

' Speiser vs. Randall, 357 U.S. 513; 78 Supr. Ct. 1332

Townsend vs. Sain, 372 US. 293; 83 Supr. Ct. 745 xs

Constitution and Statutes.

Constitution of the United Statés, Fourteenth Raia.

REE ER Ty a ae Bie 2,3, 7, 9, 15, 17, 18,'19

Ohio Revised Code, Sec. 1335.05 _____-__________ 7

UGC. WM) 2... 2

oe

’

s

In the Supreme Court. of the United States

OCTOBER TERM, 1969. | | ae

No. a eee = : goa

CHARLIE DELIA,

Petitioner,

rs

VS.

“COURT OF COMMON PLEAS OF CUYAHOGA COUNTY,

| | - and . = :

” SHAKER AIR CONDITIONING CO.,-

. Respondents.

PETITION’FOR A WRIT OF CERTIORARI

.To the United States Court of Appeals

For the Sixth Circuit.

Petitioner, Charlie Delia, a¢ks that a Writ. of Cer- -

tiorari issue to review the juin the United States ”

Court of Appeals for the Sixth Circuit\made and. entered

on the 2nd day ofsMay, 1969 (Appendix, p. 25) affirming

the judgment of the United States District Court for the

Northern District: of Ohio, Eastern Division.

s

OPINIONS.

Two Memorandum Opinions were written by ‘the

United States District-Court (Appendix p. 21, and p. 24).

A Memorandum Opinion was incorporated in the Order

of the United States Court of Appeals (Appendix, p: 25).

o

ad

2

_ JURISDICTION.

The final judgment of the United States Court of Ap-

peals for the Sixth Circuit was entered on May 2, 1969.

_ The jurisdiction of this Court is invoked under 28 U:S.C.

§ 1254 (1). Petitioner claims that there was error in the

judgment of said Court of Appeals and that his rights were.

violated contrary to the Due Process Clause and to the

Equal Protection Clause of Amendment Fourteen of the

- Constitution of the United States.

QUESTIONS PRESENTED.

1. Does the equal protection mandate of the Four-

teenth Amendment, addressed to the States, afford less

effective, and less extensive, protection to the citizens of

the United States from the consequences of the conduct

of the judicial department, than from-the consequences of.

the conduct of.the executive and of the legislative depart-

ments?

The petitioner contends that this question should be

answered in the negative. ,

2. In their appearance as litigants, may all citizens of

‘the: United States require that State Courts apply to the

determination of the causes presented the undisputed and

established law of the State?

The petitioner contends that this question anea be

answered in the affirmative. °

3. Doés the refusal of a State Court to apply to any

cause the established and undisputed applicable law of the

State, theretofore as well as thereafter in effect, constitute

a denial of due process of law and of the equal protection —

_ of the law in violation of the mandate of the Fourteenth

Amendment?

The petitioner contends that this question should be

answered in the affirmative. |. : *.

“3

4. In the absence of an affirmative assertion by a

State Court that its judgment, rendered contrary to, and

in disregard of, the established and undisputed applicablé

State law, was the result of ignorance or negligence upon

the part of the Court, is there a presumption that the

Court’s conduct in so acting was an intentional depriva-

by?

The petitioner contends that this question should be

answered in the affirmative.

5. When all of the foregoing is made to appear in a

complaint seeking appropriate federal remedy and relief,

should the complainant be denied such relief without trial

because the complaint fails to portray the state of mind

of the State Court judge or to allege the existence of an

evil or malicious intent? :

The petitioner contends that the answer to this ques-

tion should be in the negative.

THE CONSTITUTIONAL PROVISION INVOLVED.

Amendment Fourteen to the ee. of the

United States, as pertinent hereto, provides:

No State shall make or enforce any law which shall

abridge the privileges or immunitiestof citizens of the

. United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE.

The complainant seeks a declaratory judgment find-

' ing and determining that a judgment of the defendant

Court “was rendered as the result of the deprivation to —

the plaintiff of the equal protection of the laws, and that

by reason thereof said judgment should be, and is declared

tion of the rights of the litigant adversely affected there-

et ial . sae ae

to Oran,

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Poorer eo Seep emer poe ennens ene ener NS ee

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4

to be, of no force and effect and is vacated and set aside.”

The defendant Company was the successful litigant in the

judgment rendered by the defendant Court.

The District Court granted separate Motions to Dis-

miss the complgmt for the asserted reason that it fails to

state a claim upon which relief can be granted. The Dis-

trict Court’s reasons were set forth in a Memorandum

Opinion (Appendix, p. 21). Upon reconsideration «the

original ruling of the District Court was adhered to, this

time for different reasons set forth in a short Memoran-

dum Opinion (Appendix, p. 24).

The facts of this case are accordingly found in the

essential allegations of the complaint, which, for purposes

of review here, are.necessarily considered to be true. The

essential allegations of the complaint include the fact that

the defendant Company sued the plaintiff in the defendant

Court, wherein, after trial, the Court rendered judgment

in favor of the Company. The complaint alleges: ..

“The elements of a cause of action such as that

filed and presented by the defendant Company * * *

and the elements and facts required to be proved upon

the trial of such an action, are long and well estab-

lished under the law of Ohio. a,

“Upon the trial of the aforesaid action the defend-

ant Company made no attempt, offer or proffer to

prove any of the elements of the cause of action

against this plaintiff required to be proved by it.

'. “The defendant Court acted, and purported to act,

under color of, and pur§gant to, the provisions of the

Constitution and applicable statutes of the State of |

Ohio.

“The defendant Court was bound and required to

apply to the action instituted by the defendant Com-

pany against this plainjjff the established and undis-

puted law of the of Ohio, and was bound and

‘required to render in favor of the defendant Com-’

é

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5 Fi

pany no judgment against this plaintiff unless and

until said defendant Company had made proof of all

of the elements of its cause of action.” .

“Contrary to and in violation of the duty imposed

upon the @efendant Court by the provisions of the

_ Fourteenth Ameridment to the Constitution of the

United States, said Court failed and neglected to re-

quire of the defendant Company proof of any and all -

of the’ elements of the cause of action which-said de-

fendant purported to present for trial and determi-

nation * * *, Bnkso doing, the defendant Court failed

- to accord to this plaintiff the equal protection of the

laws of the State of Ohio, but on the contrary denied ~

to this plaintiff the equal’ protection of the laws,”

The suaglatie further alleges that upon appeal to the

Court of Appeals of the Eighth Appellate District of Ohio

the plaintiff assigned as error the refusal of the Trial Court

to follow the established law of the State of Ohio, and that

the defendant Company filed no Brief and prepared no

‘argument in writing in opposition to such claims of error.

The complaint alleges that notwithstanding this fact the

judgment of the Trial Court was affirmed without opinion.

The complaint further alleges that thereafter the Su-

preme Court of Ohio denied a Motion filed with that Court

7

to certify the record in the cause upon the ground that the

issues presented were not of -public or great general inter-,

est. The Supreme Court found and determined that it had

no jurisdiction of the cause.

The complaint alleges that the plaintiff has exhausted

all remedies available to him under the Constitution and

laws of the State of Ghio. The complaint. also amplifies

the-allegations quoted therefrom, and above set forth, by

escribing in detail the nature of the cause of action of the

fendant Company, the nature of the undisputed and

established elements of that cause of action under the law

6

of Ohi, and the failure of-the defendant, Court to require

proof of any of such established elements. |

In its action the defendant Company sought to hold

the plaintiff personally liable for obligations incurred- over

a considerable period of time by the corporation of which*

_ the plaintiff was the presjdent. That corporation and the

defendant Company haf engaged in business for many

years. The attempt on the part of the defendant Company

* to hold the plaintiff personally liable was undertaken be-

cause of the bankruptcy of the corporation. All transac-

tions between the two companies originated and were ear-

ried on in precisely the same manner both prior to those

transactioris claimed to be the personal liability of the pres- .

ident and those which took place thereafter.

The defendant Company filed suit in the form of an

action on an account. This is a special form of action au-.

thorized Hy.statute in Ohio. The statute, however, relates

only to tle form of pleading.

Or’ the trial of the case, the defendant Company rest-

ed its right to recover upon its own book records. It. pro-

duced a series of connected ledger cards which originally

bore the name of the corporafion of which the plaintiff was

president. Subsequently the defendant Company inserted

on the same ledger card the name of the plaintiff as the

one with whom it was purportedly doing business.

The undisputed law of Ohio requires that in such cir-

cumstances the plaintiff must prove the terms of its con-

tract, or contracts, with the defendant and must prove that

it fully performed the terms of such contract, or contracts,

before it can recover. This has been the law of Ohio for

fifty years and it has never changed. See Dykeman-vs.

, Johnson, 88 O.S. 126;'93 N.E. 626 (1910) and J. T. Fish

& Co. vs. States Coal Co., 70 O.L.A. 585;.129 N.E. (2d):

657 (1954) as examples.

7

The defendant Company made'no attempt to offer any

proof whatever of any contract with the plaintiff or of the

terms of any contract with the plaintiff; attempted to offer

no proof whatever of performance on its part of any one

or more of the series of numerous contracts making up its

“account.” In fact, the defendant Company offered no

evidence whatever to prove the furnishing of any consider-

ation for its claims against the plaintiff, nor to satisfy the

Ohio Statute of Frauds (Ohio Revised Code, § 1335.05)

which requires ‘that a promise to answer for the debt of

another is required to be in writing and signed by the per- .

son to be charged. The business records of the defendant

Company were, of course, in more than onésense, com-

pletely self-serving in this situation.

No Court giving consideration to this case offered any °

explanation or comment for the deliberate refusal to fol-.

low the undisputed requirements of the law which had

been established for almost fifty years.

REASONS FOR GRANTING A. WRIT.

No. 1. Both the due process mandate and the equal

protection mandate of the Fourteenth Amendment require

the judicial department of the state, no less than it does

_ the executive and the legislative departments, to accord

to each litigant the equal protection of the law by assuring

him the right to a determination of his case in accordance

with the established and — law of the state ap-

plicable thereto. :

The basic issue in this case involves the nature of the

right which any litigant before a State Court may insist

upen as a right guaranteed him by the Fourteenth Amend-

ment to the United States Constitution.

The complaint alleges in effect that every litigant in a

. State Court is very simply and basically entitled to a de- ©

9

8

_ termination of his case in accordance with the established

and undisputed applicable law of the State. No issue is

presented in this case that the applicable law of the State

of Ohio, and the applicable legal ‘principles established

- under the law of the State of Ohid, are in dispute.

There is no issue in this case that the applicable law .

and the established legal principles involved were changed

or modified jn this case either by the Trial Court or by any

court having the authority to modify that law. There is

no question in this case that the applicable law of the

State of Ohio and the applicable legal principles are pre-

cisely the same now, and remain precisely the same sub-

sequent to the State Court’s determination of the plain-

tiff’s case as at.that time and prior thereto.

The case made by the plaintiff’s complaint is clear and

simple. The plaintiff was sued in the defendant Court by

‘ the defendant Company. The défendant Company claimed ©

. before the defendant Court the existence of a liability to

it by tie plaintiff herein. The plaintiff herein denied the

existence of any such liability. The plaintiff went before

the defendant Court relying upon the fact that there was

well established and undisputed law applying to his case

which that Court was botfnd to employ.»

The. plaintiff went before the defendant Court

knowing that the established and undisputed law of the

State of Ohio required the defendant Company to prove

the existence of certain facts before it could recover a

judgment. The defendant Company made no attempt to

prove any of those facts. The defendant Court refused to

require the defendant Company to do so. :

‘Admittedly, in the present state of the case e before this

Court, the defendant Court simply “refused to follow the

undisputed and established law of the State of Ohio. Under

such circumstances, the question may be very simply put:

ee

Did the plaintiff in this case go before the defendant Court

expecting that he was entitled to insist upon a right guar- .

anteed to him by the Due Process Clause and by the Equal

Pfotection Clause of the Fourteenth Amendment, when in

fact the mandate of that Amendment guaranteed him no

such right whatever? ti. . é

To state the question in other words, is any litigant

before any State Court in any case wherein the law of the

State applicable thereto is established and undisputed, en-

titled to have his case determined in accordance with that

law? The United States Court of Appeals for the Sixth .

Circuit considered that the answer to this question was

so apparent, and that the claim of the plaintiff herein to

the protection accorded him under the Fourteenth Amend-

ment was so unsubstantial, as to require no, serious con-..

sideration whatever. Accordingly, the Circuit Court de-

,clined even to grant to the plaintiff the customary privi-

lege of oral argument. Instead, it summarily affirmed the

judgment of the District Court. :

.In so doing the Circuit Court advanced as a basis for

its ruling (Order, Appendix, pp. 25-26):

— “Unequal application of a state law tate on its face is

not a denial of equal protection unless there is shown.

to be present an element of intentional.or purpose-

ful discrimination. Snowden vs. Hughes, 321 U.S. }.

_. Mere errors and irregularities occurring in a judicial

proceeding are to be differentiated from a situation

where the proceeding itself is a sham or nullity. * * *

If it should be assumed that the Ohio courts did not

correctly apply the law of Ohio to appelldnt’s case,

there is nevertheless a lack of any allegations in the

-complaint tending to show a purposeful discrimina-

tion. Certainly, a construction of the Equal Protec-

tion Clause is not favored which’would in effect allow -

. a Federal court to relitigate a State court case upon

every alleged departure from state law by state, of-

ficers.”

SATA ene e

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10

With due respect to the opinion of the Circuit Court,

the plaintiff asserts that the Circuit Court. wholly failed to

comprehend the issue raised by the complaint. In raising

this issue the plaintiff has given full weight té the nu-

merous decisions and opinions of this Court which have

plainly indicated ‘that it is neither the duty nor the func+

tion of this Court to review errors in State Court judg-

ments or proceedings. i |

The plaintiff has also accorded full weight to the sev-

eral decisions and opinions of this Court which have indi-

cated that mere errors or irregularities in the, proceedings

and judgments of a State Court do not under ordinary

circumstances constitute a denial of due process of law or

of the equal protection of the law.

It is submitted that the case at bar does not come

_within, and is not controlled by, those decisions. On the

contrary, this case reaches and exceeds that point of dif-

ferentiation to which this Court has alluded in previous

opinions and rises to the level of a federal aia na

question of substance and importance.

A few examples may suffice to illustrate the difference

in the issue here raised. In the case of Milwaukee Electric

Railway and Light Co. vs. State of Wisconsin ex rel. City

of Milwaukee, 252 U.S. 100; 40 Supr. Ct. 306; 10 A.L.R.

892, this Court said: :

“The company also insists that the ordinance is void

because it denies equal protection of the laws. The

contention rests upon the fact that, since entry of the

judgment below, the Supreme Court of the State has |

decided Superior vs. Duluth Street R. Co., 166 Wisc.

487, which the company alleges is not resoncilable

with its decision in this case. * * * But, however that

may be, the Fourteenth Amendment does not, in

guaranteeing equal protection of the laws; assure uni-

formity of judicial decisions any more than, in guar-

11

anteeing due process, it assures immunity from. ju-

dicial error.”

| To differentiate, in the case at bar there neyer was, .

and never has been, any change in the applicable Ohio

law and decisions. No -new or different applicable princi-

ples ever were or have been announced.

: In the case of Brinkerhoff-Faris Trust & Savings Co.

vs. Hill, 281°U.S. 673; 50 Supr. Ct. 451, there appears a

characteristic statement of the view of this Court as ap-

plied to issues involved in prior cases coming before it. In

said:

“it is true that the courts of the state have the supreme

power to interpret and declare the written and un-

written laws of the state; that this Court’s power to

review decisions of state courts is limited to their de-

cisions on federal questions and that the mere fact

that a State Court has rendered an erroneous de-

cision on a question of state law, or has overruled

principles or doctrines established by ptevious deci-\,

sions on which a party relied, does not give rise to a

claim under the Fourteefith Amendment or otherwise

confer appellate jurisdiction on this Court. * * *”

And in a footnote appended to that opinion it was

stated:

“The process of trial and error, of change of decision

in order. to conform with changing ideas and condi-

tions, is traditional with courts administering the

common law. Since it is for the State Courts to in-

terpret ahd declare the law of the state, it is for them

to correct their errors and declare what the law has

been as well as what it is. State Courts, like this Court, .

may ordinarily overrule their.own decisions without

offending constitutional guarantees, even though

parties may have acted to their prejudice on hog _—

of the earlier decisions.” __ ne

the opinion written by Mr. Justice. Brandeis, this Court _

| & 12

Again, to differentiate, the plaintiff in this case has

not charged simply the rendering of “an erroneous de-

cision on a question of State law.” The plaintiff has not’

alleged the overruling of any principle or doctrine estab-

lished by previous State decisions. No such change has

\taken place. <« . |

Another characteristic statement of the view of this

Court with respect to issues raised in previous cases

coming before it is found.in the case of American Railway

Express Co. vs. Commonwealth of Kentucky, 273 U.S.

269; 47 Supr.. Ct. 353. In its opinion in that case, the

Court said: 3 pa *.%

“Save under exceptional circumstances, not now pres- -

ent, we must accept as controlling the decisions of the

state courts upon questions of local law, both statu-’

tory and common. ‘The Due Process Clause does not

take up the laws of the’several states, and make all

questions pertaining to them constitutional questions, ~

nor does it enable this Court to revise the decisions of -

the State Gourts upon questions of state law.’ Enter-

prise rrightion ‘District vs. Farmers Mutual C4nal

Co., 243 U.S. 157, 165, 166. * * *’

The instant case is before this Court onky upon the |

complaint of the plaintiff. On this status of the case ‘this

Court is not in-a position to inquire into the record of the |

case before the State Court or to verify the circumstance

that in fact no question of local law was decided by any .

court before which the plaintiff’s State case was heard and

determined. In the only Appellate Court which heard the

plaintiff’s case on the merits, counsel for the defendant

Company filed neither a Brief nor any written Memoran-

dum, and the Supreme Court of Ohio refused to admit or

to consider the plaintiff’s appeal upon the merits.

13

= Ee St &

No. 2. This Court has never declared that under no

circumstances can a litigant claim and establish a depriva-.

tion of ‘due process of law and of the equal protection of

the law resulting from the substantive action of a state

court. The deliberate refusal of the state court to follow

undisputed state law defining.the nécessary elements‘of a

_cause of action, as set forth in the complaint herein, af-

firms a consequent deprivation of constitutional rights wi with

respect to which the plaintiff is entitled to a trial.

An examination of the Opinions of this Court deal-

ing with alleged deprivation of constitutional rights based

upon claimed errors and irregularities i in State Court pré-

ceedings will disclose that at no time has this Court ‘un-

equivocally barred the door to the presentation and con-

sideration of such claims.- After discussing forior de- -

scriptive definitions of due-process, this Court said in the

. case of McGovern vs. City of New. York, 229 S. 363 at

page 373; 33 ‘Supr. Ct. 876:

“From the very ‘nature of the problem, these

phrases and others like them are approximate sugges-

. tions.rather than scientific definitions. In last resort“

the line of division is dependent upon differences of

degree too subtle to be catalogued.. * * * One can-

not hope to mark its bearings in a sentence or a

paragraph.

“Enough for present purposes that when the hear- |

ing has been full and candid, there must ordinarily. °

be a showing of something more. far-reaching than *

one of dubious mistake in the appraisal of the evi-

dence. Due process is a growth too sturdy to suecumb

-to the infection of the least ingredient of error. ‘It

takes more than a possible misconstruction ky a court

to make a case under the Fourteenth Amendment.’

¢ ‘Seattle, Renton and Southern Railroad Co. vs. State -

“of aera a ex.rel. Linhoof, 231 US. 568, 570; 34

- ‘Supr. Ct. 185.” ee

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In the case of Chicago Life Insurance Co. vs. Cherry,

244 U.S. 25; 37 Supr. Ct. 492, this Court said in its opinion:

“Whenever a wrong judgment is entered against a

defendant and his property is taken. when it should

not have been, but,whatever the ground may be, if

the mistake is not so gross as to be impossible in a ra-

tional administration of justice, it is no more than

the imperfeetion of man, not a denial of constitutional

rights.” Ms

And in th e of American Railway Express Co. vs.

Commonwealth of Kentucky, .273 U.S. 269; 47 Supr. Ct.

353 (supra, p. 12), this Court also said:

“We cannot interfere unless the judgment amounts to

mere arbitrary or capricious exercise of power, or

is in clear conflict with those fundamental ‘principles

which have been established in our system of juris-

prudence for the protection and enforcement of pri-

vate rights.’ Pennoyer vs. Neff, 95 U.S.-714, 733.

Booth vs. Illinois, 184 U.S. 425, 429; 22 Supr. Ct.

425. Truax vs. Corrigan, 257 U.S. 312, 329; 42 Supr.

Ct. 124; 22 A.L.R. 375.” =

Further, in the case of Corrigan vs. Buckley, 271 U.S.

323; 46 Supr. Ct. 521, this Court stated: .

“There is no semblance of ground for any contention

that the decrees were so plainly arbitrary and con-

trary to law as to be acts of mere spoliation.”

And in his concurring opinion in the case of Snowden

vs. Hughes, 321 U.S. 1; 64 Supr. Ct. 397 at page 405 (the

case cited as authority by the Court of Appeals), Justice

Frankfurter stated the consequence of a hypothetical

situation which is precisely the factual situation involved

in the case at bar:

“And if the highest court of a state should candidly

deny to one litigant a rule of law which it did con- .

<>

15

cededly apply to all other oe in similar situa-

tions, could it escape condemnatioh a$ an unjust dis-

crimination and therefore a denial of equal protection

of the laws?” (Emphasis supplied. )

~ From the foregoing quotations we sum up some of the

situations in which a litigant may be found to have been

deprived of the rights guaranteed by the Fourteenth

Amendment as the result of substantive action upon the

' part of a State Court:

1. Where:something “more than a possible miscon-

struction” of state law has taken place. ;

2.. Where “the judgment amounts to mere arbitrary,

or capricious exercise of power,” or “is in clear conflict

with those fundamental principles which have been estab-

lished in our system of jurisprudence for the protection

and enforcement of private rights.”

3. Where the judgments of the state courts “were so

plainly arbitrary and contrary to law as S to be acts of mere

spoliation.”

4. Where the state court did “candidly deny to one

_litigant a rule of law which it concededly did apply to all

other litigants in similar situations.”

Exhaustive research would undoubtedly reveal fur-

ther and similar observations by this Court which must

inevitably lead to the conclusion that the plaintiff herein,

on the basis of the allegations of his complaint, was denied

‘by the action of the Ohio Courts due process of law and

the equal protection of the law.

‘The protection afforded within-the past decade by de--

cisions of this Court with respect to the personal liberty of

the citizens of the Unitetl States has been noteworthy and

extensive. Procedurally, many of the principles an-

nounced have been set forth in actions for writs of habeas

OT er onsaeanntecw pREEErTRE:

<.

16

“ ¢orpus. How many leagues behind the protection afforded

to personal liberty shall the citizens of the United States

find to be the protection afforded under the Constitution

to their rights of property? In the case of Townsend vs.

Sain, 372 U.S. 293 at page 315; 83 Supr. Ct. 745 at page

758, the following statements, dealing with a state crim-

inal prosecution, are pertinent here:

Opinion: ¥

“If the state court has decided the merits of the

claim but has made no express findings, it may still —

‘be possible for the District Court to reconstruct the

findings of the state trier of fact, either because his

view of the facts is plain from his opinior or because

of other indicia.’

“In some cases this will be impossible, and the

Federal ‘District Court will be compelled to hold a

hearing. * * * Since the decjsioggef the state trier of

fact may rest upon an error of law rather than an ad-*

verse ‘determination of the facts, a hearing is com-

pelled to ascertain the facts. * * *

“Tn any event, even. if it is clear that the state trier

. of fact utilized thé proper standard, a hearing is some-

he times required if his decision presents a situation in

which the ‘so-called facts and their constitutional sig-

nificance are so blended that they cannot be severed.

in consideration.’ * * * -

__. “Where the fundamental liberties of the person

are claimed. to‘ have been ree-o we carefully

scrutinize the state court record. * * * If the state

trial judge has made serious procedural errors (re-

specting the-claim pressed in federal habeas) in such

things as the burden of proof, a federal hearing is.

required. Kee -

‘ “Our present concern is with errors which, al-

‘though-less serious, are nevertheless grave enough to

deprive’ the state evidentiary hearing of its adequacy

as a means of finally determining facts upon which

? constitutional rights depend.”

17

‘These statements clearly demonstrate the length to

which Kederal Courts are required to go for the purpose

of determining Whether, in a criminal proceeding, the de-

fendant’s constitutional rights have been violated.

The Fourteenth Amendment speaks of “life, liberty

and property” in the same phrase, in the same breath, and

with the sAme emphasis. Granting that deprivation of

liberty is undoubtedly more abhorrent, the quality of the

Fourteenth.Amendment guarantee to the citizens of the

United States with reference to tHeir property no less en-

~ treats the interest and the protection of this Court.

When, as in the case at bar, the complainant alleges

that the State Court caused a judgment to. be rendered

against him, and is about to undertake to deprive him

of his property in satisfaction of that judgment, upon the

basis of a trial wherein not a single element of the cause

of action against him was required to be proved, or was

proved, an inquiry bythe Federal Courts with respect to

the deprivation of the plaintiff's constitutional rights is

plainly solicited. It may be, however, that such an inquiry

would not approach the depth or the complexity of that

suggested by this Court in Townsend.

In the case of England vs. Louisiana State Board of

Medical Examiners, 375 U.S. 411, 415; 84 Supr. Ct. 461,

464, this Court said:

“There are fundamental objections to any conclu-

sion that a litigant who has properly invoked the juris=

diction of a Federal District Court to consider federal

constitutional claims can be compelled, without con-

sent and through no fault of his own, to accept instead

a state court’s determination of those claims.

“Such a result would be at war with the unquali-.

fied terms in which Congress, pursuant to constitu-

tional authorization, has conferred specific categories

of jurisdiction upon the federal courts, and with the

SO AT BE HEIN

a

principle that ‘When a federal court is properly ap-

pealed to in a case over which it has by law jurisdic-

tion, it is its duty to take such jurisdiction.’ Willcox

vs. Consolidated Gas Co., 212 U.S. 19, 40; - Supr. Ct.

192, 195.”

In presenting this Petitio? plaintiff has not failed to

take note of statements of this Court, as for example in the

case of Speiser vs. Randall, 357 U.S. 513, 525; 78 Supr. Ct.

1332, 1342: “There is always in litigation a margin of

error, representing error in fact finding, which both par-

ties must take into account.”

-Nor has the plaintiff overlooked vanes such as

that in the case of Beck vs. Washington, 369 U.S. 541, 554;

82 Supr. Ct. 955, 962: “We have said time and again that

the Fourteenth Amendment does not ‘assute uniformity

of judicial decisions or immunity from judicial error.’

Were it otherwise, every alleged misapplication of state

law would constitute’ a federal constitutional question.”

This case, on the contrary, falls within the category of

a judgment arising from the deliberate and intentional

refusal of a State Court to require proof of the established

and undisputed elements of a cause of action.

— |

CONCLUSION.

This cause falls upon that side of a “line of division”

which this Court. has appropriately described as “depend-

ent upon differences of degree too subtle to be catalogued.”

Of what value to a litigant is the carefully protected right

with respect to notice of a hearing, enforced even in con-

nection with administrative proceedings (Schroeder vs.

City. of New York,-371 USS. 208; 83 Supr. Ct. 279); of

wWiat value ‘is the carefully protected right of a litigant to

appear at the'‘trial of his cause, his carefully protected

right to subpoena witnesses, his carefully protected right

to cross-examine the witnesses ‘against him, and of all of .

the other procedural safeguards affirmed by this Court, if

upon the trial of his cause a State Court may with im-

punity adjudge against him, and thereby deprive him of

- his property, upon a deliberate refusal to require proof of

any of the elements of the cause of action purportedly

stated? ‘

The entire galaxy of constitutidnally protected pro-

-cedural fights is deprived of any efficacy: whatever if

it is nothing more. than a framework for the determi-

nation of a cause in wilful and utter disregard of the --

essentials of a cause of action. If, upon a deprivation of

so fundamental a right, namely, the right to require a

' State Court to-obey State law, the plaintiff is precluded

_ from turning to the Federal Courts for relief, then no

forum exists to enforce the guarantee of the Fourteenth

Amendment that the plaintiff shall not be deprived of life,

liberty and property without having been accorded due

process of law and the equal protection thereof.

The conduct of the State Court in this case certainly

amounted to a “mere arbitrary or capricious .exercise of

power” and was “in clear conflict with those fundamental

- principles which have been established in our system of

1)

RG AS SARS OMGILI PSY ES

. 20 Sc

' jurisprudence for the protection and enforcement of

private rights.” (American Express Co. vs. Common-

wealth of Kentucky, 273 U.S. 269; 47 Supr. Ct. 353; Pen-

noyer vs. Neff, 98 U.S. 714, 753.) ,

| Plaintiff prays that his Petition be granted.

_ Respectfully submitted, 7

*

EMANUEL M. Rose,

940 Leader Building,

en a 44114,

Aan M. Wo tk,

628 Keith Building,

Cleveland, Ohio 44115,

EpwIin F. Woop e,

' 628-Keith Building, o

Cleveland, Ohio 44115,

Attorneys for Petitioner.

21

APPENDIX. ~

THE NORTHERN. DISTRICT OHIO, EASTERN DI-

VISION. |

* (Filed August 29, ON

_THomas, J. | : @

OPINION OF THE UNITED morte ome COURT FOR &

The plaintiff Charlie Delia sues Court of Common

_ Pleas of Cuyahoga County and Shaker Air Conditioning

' Company for a declaratory judgment to set aside a state

court judgment against him. Jurisdiction of this court

and the cause of action which plaintiff alleges is claimed

to arise under the fourteenth amendment of the Con-

stitution of the United States and 42 U.S. C. §§ 1981 and

1983, cqgmmonly called the Civil Rights Statutes of the

United States.

The subject matter of the complaint involves case -

No. 756 716, litigated in the Common Pleas Court of Cuya-

hoga County, in which a judgment was rendered against

the plaintiff and in favor of the defendant company, and

hio. The nub of the cause of action which the plaintiff

seek to assert is set forth in paragraph 10. This reads:

ontrary to, and in violation of, the duty imposed

upon the defendant Court by the provisions of the

Fourteenth Amendment to the Constitution of the

United States, said Court failed and neglected to

require of the defendant company proof of any and all

of the elements of the cause of action which said

defendant purported to present for trial and deter-

mination by the Hefendant Court inthe above de-

scribed action. In so doing, the defendant Court failed

to accord to this plaintiff the equal protection of the

laws of the State of Ohio, but on the contrary denied

to this plaintiff the equal protection of the laws.

cs

ater unsuccessfully appealed by the plaintiff to the Cuya- -

hoga County Court of Appeals and the Supreme Court of

PIERRE EBC

22

Defendant Common Pleas Court moves to dismiss for

the reason that the complaint fails to state a claim upon >

which relief can be granted. Defendant company also

moves to dismiss. The motion of defendant Common Pleas

Court will be considered first. :

The allegations of the complaint reflect, nd it is not

disputed, that the Common Pleas Court had jurisdiction to

hear Shaker Air Conditioning Company’s action against

Charlie Delia and to-render a money judgment. against

him. Dismissal is required therefore upon “the doctrine

solidly established at common law,” and not abolished by

42 U.S.C. §§ 1981 and 1983 (provisions of the 1871 Civil

Rights Act of the United States) that a judge is immune

from suit when he acts “within his jurisdiction” or “within

- the judicial role.” Pierson v. Ray, 386 U.S. 547, 553-55

(1967). : aii

Plaintiff's complaint will further be considered upon

“its merits. The crucial contention of the complaint, which

appears in paragraph 10, charges that the defendant court -

“denied to this plaintiff the equal protection of the laws:”

To support that contention the complaint asserts only that:

said Court failed and neglected to require of the de-

fendant company proof of any and._all of the elements

of the cause of action which said defendant purported |

to present for trial and determination by the defend-_

ant Court in the above described action.

; It is manifest that these Mewines do not picture any

facttial claims of discrimination. Yet to constitute a denial

of equal protection of laws, actionable under 42 U. S.C.

§ 1983, “invidious discrimination” must be charged. Lee v.

Hodges, 321 F. 2d 480 (4 cir. 1963), and the complaint

“just set forth facts showing some intentional and pur-

poseful deprivation of constitutional rights:” Powell v-

Workmen’s Compensation Bd., 327 F. 2d 131, 137 (2d.

Cir. 1964). Powell relies on Snowden v. Hughes, 321

U. S. 1 (1943) for section 1983's requirement of “pur-

poseful discrimination.” Construed most favorably for

the plaintiff his complaint asserts nothing more than that

the Common Pleas Court “failed and neglected” to require

en ee ae

proof. “Errors or irregularities while acting within the.

scope of their authority” are not sufficient to render the

rulings or judgments of a court actionable under section

1983. Sarelas v. Sheehan, 326 F.2d 490 (7th Cir; 1963);

Bottone v. Lindsley, 170 F.2d 705: €10th Cir.), cert. denied,

336 U. S. 944 (1948). . pee

As for any allegations of the complaint -which are

directed at Shaker Air Conditioning .Co., it is, simply

claimed that: ° . | ‘

the judgment of the defendant Court procured by the

defendant company, as above set forth, in violation

of the plaintiff’s constitution rights is voidable and

should be set aside and held for naught. a,

_ Thus as to defendant Shaker Air Conditioning Co., there

is also no allegation or factual claim of “purposeful -dis-

crimination,” eyen if it is assumed that Shaker’s prosecu-

tion of its action in a state court supplies the essential

element of séction 1983 that the challenged conduct must

' be “under color of any statute * * * of any State.”

The complaint failing-to state a cause of action under

the Civil Rights Statutes, no separate or sufficient federal

jurisdiction can be asserted by plaintiff’s prayer for “a

declaratory judgment finding.” _

| Accordingly, the motion of each defendant is granted.

The complaint is dismissed and judgment for costs js ren-

dered against the plaintiff. ie >

4s ‘Witt1am K. THomas,

‘United States District J udge.

24

OPINION ‘OF, DISTRICT COURT ON MOTION FOR

_ RECONSIDERATION. —

(Filed October 1, 1968.)*

Tuomas, J. ;

In his motion for veitiuibibepsitians plaintiff cites: Village

of Fairlawn v. Fuller, 8 Ohio Misc. 266, 221 N.E. (2d) 851.

There the Akron, Ohio Municipal Court quashed 37 affida-

vits which charged employees of a particular store with

violations of a village Sunday closing ordinance. The

court, acted because it found “intentional discrimination”

in the enforcement of the. ordinance. The Municipal Court

relied on Yiek Wo v. Hopkins, 118 U.S. 356 at 373, 374, in

which habeas corpus was granted Chinese laundrymen

‘imprisoned for convictions, under a San Francisco ordi-:

nance. The court found admitted discrimination based on

“hostility to the race and nationality to which the peti-

tioners belong; and which in the eye of the law is not

justified.”

Applying the wees of Village of Fairlawn, supra,

and Yick Wo, supra, to this court’s conclusions, expressed

in its memorandum. granting dismissal of the complaint,

plaintiff's. complaint must fail because it does not assert

“intentiogal discrimination” on the pit of the defendant

- Court of Common Pleas. The motion for ‘YYetonsideration

is: overruled.

, /s/ WiLt1aM K. THoMas,

United States District ivdge.”

*

& gf

“

a

a . =

OPINION AND ORDER OF THE UNITED. STATES COURT

OF APPEALS FOR THE SIXTH. CIRCUIT.

“ .. (Filed May 2, 1969.)

Before: Epwarps, -McCreer, and Comps, ° Circuit

Judges. - | /

’

The Shaker Air Conditioning Company brought an

" action against Charlie Delia in an Ohio common pleas

court to recover on an account. Shaker obtained a judg-

ment against Delia in the amount of $6,279.42, which was

‘affirmed by the Court of Appeals of the Eighth Judicial

District of Ohio; an appeal was dismissed by the Ohio

Supreme Court. ©

Delia, defendant,in the state court action, then filed

suit in the federal district court against the Ohio court of

common pleas and the Shaker Company seeking a declara-

tory judgment to set aside the s te-court-judgment. Fed-

eral jurisdiction-was sought +é be invoked by Virtue of

the Civil Rights’ Act, 42 U.S.C. §§ 1981 and 1983, and

the equal protection claige of the Fourteenth Amend-

ment. The complaint was dismissed for failure to state a

cause of action, and plaintiff appeals. |

The complaint alleged that the court of common pleas

“failed and neglected to require of the defendant company

proof of any and all of the elements of the éause of ac:

tion which said defendant purported to present for

wil *.% = [denying] to this plaintiff the equal protec-

tion of the laws.” ie sone

Unequal application of a state law fair on its face is

not a denial of equal protection unless there is shown to

be present an element of intentional or purposeful dis-

crimination. Snowden v. Hughes, 321 U.S. 1 (1944).

Mere errors and irregularities. occurring in a judicial pro-

- .ceeding are to be differentiated from a situation where

ee

>

26

the proceeding itself is a sham or nullity. Sarelas v.

Sheehan, 326 F.2d 490 (7th Cir. 1963), cert. denied, 377

U.S. 932 (1964). See Bothone v. Lindsley, 170 F.2d 705

(10th Cir. 1948), cert. denied, 336 U.S. 944 (1949).

If it should be assumed that the Ohio courts did not

correctly apply the law of Ohio to appellant’s case, there

is nevertheless a lack of any allegations in the complaint

tending to show a purposeful discrimination. Certainly,

a construction of the equal protection clause is not favored

which would in effect allow a federal court to relitigate a

state court case upon every alleged departure from state

law by state officers. The district court properly dis-

‘ missed the complaint for failure to state a cause of action.

From an examination of the record before us it is ap-

parent that the question upon which decision depends is

so unsubstantial as not to require further argument.

The judgment of the district court is affirmed under

Rule 8, Rules of the Sixth Circuit.

Entered by order of the Court: 4

/s/ Cart W. Reuss,

Clerk.

: *

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