Opposition Brief — Cocke v. Cantor

| LIBRARY

COURT, U. B

IN THE

SUPREME COURT OF THE UNITED

October Term, 1974

No. 74-1532

FRANCIS M. COCKE, Petitioner

Vv.

IRWIN S. CANTOR, et al., Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Hubert E. Kelly, Esq.

550 West Washington

Phoenix, Arizona 85003

and

Wallace O. Tanner, Esq.

Tanner, Jarvis & Owens

3800 N. Central Avenue

Phoenix, Arizona‘ 85012

Attorneys for Respondents

Steven H. Schneider, Esq.,

Title Insurance Company of

Minnesota, James Stewart

Company, M. Seth Horne and

Maurine D. Horne, his wife,

Arleigh H. Burton, and in

propria persona for themselves

July 24, 1975

INDEX

Page

Opinion and Judgments Below.. 2

PUCPLSGLCELONs scvccccersccsecce 2

Questions presented.........- 2

Statement of the case........ 3

Arguments

I. Jurisdiction is con-

ferred upon the dis-

trict court, 28 U.8.C.A.

§1343, to review state

court judgments entered

in violation of Peti-

tioner's right to due

process of law as pro-

tected by the Civil

RIGhts Act. .ccocvcsevece ~

II. The District Court did

not err in finding that

the state court had

jurisdiction in the

Original litigation... 10

III. Petitioner's action

against attorneys

Kelly and Tanner is

frivolous and with-

Out Merit.cccccscesceee 17

Conclusionececscceseccsscescce AY

Certificate of service....... 21

CITAT

Brown v. Joseph...

463 F.2d 1046 (3rd

Cocné vw. Cocks. .« « «

Civil No. D-89833,

Cty., Ariz. Super,

filed December 31,

March 15, 1969, aff

(1970)

Cocke v. Cantor, et a

No. 74-1997 (Octobe

: Cocke v. Transamerica

“$ Insurance Co. ...

16 Ariz. App. 556,

756 (1972)

IONS

Cir.

1970)

Maricapa

Ct.,

1968

"dad.

.

rit.

Tit

and

13

Ariz. App. 57, 474 P.2d 64

1974)

le

494 P.2d

Concerned Consumer's League v.

a eS ee

1974)

319 U.S. 157, 161,

Francisco Enterprises

Kisby « « °

French v. Corrigan. .

432 F.2d 1211 (7th

trial Organization.

307 U.S. 496, 507,

James Stewart Co. v.

Cty., Ariz. Super.

April 22, 1969

ii

162

371 F.Supp 644 (EB. D. Wisc.

Douglas v. City Jeannette. .

(1943)

» 2a. Ve

482 F.2d 481 (9th Cir.

iy Ege

508

1973)

1970)

Hague v. Committee for Indus-

(1939)

CoGne. «. 2

Ct.s

Civil No. C-222472, Maricopa

filed

4

RO ar ae eer

Page

James Stewart Co. v. Cocke. .. 4

(November 10, 1970), aff'd.

sub. nom., Cocke v. Trans-

america Title Insurance >.

16 Ariz. App. 556, 494 P.2a

756 (1972)

James Stewart Co. v. Cocke. .. 5

Civil No. 1-CA-CIV-2306 (Ariz.

App. May 17, 1973)

VONES. 9. DAYOT 26.6 4 es a D8

392 U.S. 409, 412 (1968)

Lynch v. Household Finance

Se ee ee er ee a

405 U.S. 538, 543, 544 (1972)

Morgan v. Sylvester ... eo oe

125 F.Supp. 380, aff'd 220

F.2d 758 (2nd Cir. 1955)

Paul v. Dade County .....

419 F.2d 10 (5th Cir. 1969),

cert. den., 397 U.S. 1065

oi By: 7,

(1970)

Scott v. California Supreme

Court... « . - 16

426 F.2d 300 (9th Cir. 1970)

Smallwood v. United States. .. 18

358 F.Supp. 398 (E.D. Mo.

(1973)

iii

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

FRANCIS M. COCKE, Petitioner,

Vv.

IRWIN S. CANTOR, EINO M. JACOBSON,

FRANCIS J. DONOFRIO, WALLACE O.

TANNER, HJBERT E. KELLY, STEVEN

H. SCHNEIDER, LORETTA S. WHITNEY,

POWELL B. GILLENWATER, TRANS-

AMERICA TITLE INSURANCE COMPANY,

TITLE INSURANCE COMPANY OF MINNE-

SOTA, JAMES STEWART COMPANY and

M. SETH HORNE and MAURINE D. HORNE,

his wife, JOAN H. COCKE, ARLEIGH H.

BURTON, Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

This is a brief in opposition to

the petition of Francis M. Cocke for a

writ of certiorari to review the judg-

ment of the United States Court of

Appeals for the Ninth Circuit entered

NINE SI RIEL OLE

_— — CREE TEY ALLEL LIL LIP PLE LL SE EO OO EL

on October 7, 1974. The brief is due

July 24, 1975.

OPINION AND JUDGMENTS BELOW

Respondents agree with the Peti-

tioner's summary of the opinion and

judgments below.

JURISDICTION

Respondents agree with the Peti-

tioner's statement of jurisdiction in

this Court.

QUESTIONS PRESENTED

On page 2 Petitioner maintains

the question presented to be whether

his pro se complaint, predicated upon

the Civil Rights Act, should have been

dismissed with prejudice where the re-

lief sought was review and vacation of

state court orders which allegedly de-

nied Petitioner due process of law, on

grounds the state court lacked subject

matter jurisdiction. On page 14 Peti-

tioner states the question differently.

There he says the question is whether

the Civil Rights Act permits the fed-

eral court to review state court's judg-

ments entered in violation of the Peti-

tioner's right to due process of law.

The Respondents submit that

neither proposition states the question

presented. The District Court held

that it had jurisdiction under the

Civil Rights Act to review constitu- ot

tional issues not litigated in the

2

= gS 4 ANOLE GELLER NIP

ESPEN PRA IGE SNP § EIS .

state court. It examined Petitioner's

alleged wrong, i.e. that the state

court proceeded to judgment without

"indispensable parties" and, therefore,

without jurisdiction, concluding Rule

19(b) considerations were equitable,

not jurisdictional. It held that the

state court had jurisdiction, and by

reason thereof the Petitioner's com-

plaint failed to state a cause of

action. Therefore, the question pre-

sented is whether the District Court

erred in so holding.

STATEMENT OF THE CASE

The action arises out of a real

estate transaction and resulting state

court litigation. Respondents are

practically every party, attorney and

judge who were in any way involved with

the case.

In 1964 Petitioner and his ex-

wife made a property settlement agree-

ment, pursuant to which a trust was

established. They were divorced in

1967. Certain property held by them

and the trustee was agreed to be sold

in 1968 to James Stewart Company (or

its nominee the Respondents Horne).

Transamerica Title Insurance and Trust

Company (hereinafter referred to as

Transamerica) was the escrow agent. A

dispute arose between the Petitioner

and his ex-wife over payment instruc-

tions and after the refusal of the

Petitioner to execute certain documents

3

the buyers brought suit for specific

performance. James Stewart Co. v.

Cocke, Civil No. C-222472, Maricopa

Cty., Ariz. Super. Ct., filed April 22,

1969. Transamerica was joined in this

action as an additional defendant by

Petitioner seeking damages for the

alleged mishandling of the escrow

transaction. It answered and counter-

claimed against Petitioner seeking

attorneys' fees and costs. Thereafter

it moved for summary judgment which was

granted, resulting in an award of

attorneys’ fees. The underlying pay-

ment dispute between Petitioner and his

ex-wife was litigated in post-divorce

proceedings in which the court held,

among other things, that the sale pro-

perty had been placed outside of the

trust. Cocke v. Cocke, Civil No.

D-89833 (Maricopa Cty., Ariz. Super.

Ct., filed December 31, 1968 and

March 15, 1969), aff'd. 13 Ariz. App.

57, 474 P.2d 64 (1970).

In a series of judgments the

State trial court dismissed the Peti-

tioner's counter and cross-claims

against his ex-wife and other parties

in the specific performance action,

James Stewart Co. v. Cocke, supra,

(November 10, 1970), aff'd. Sub. nom.,

Cocke v. Transamerica Title Insurance

Co., 16 Ariz. App. 556, 494 P.2d

756 (1972), and entered judgment

against Petitioner ordering the sale

consummated. James Stewart Co. v.

Cocke, supra, (September 27, 1972). A

subsequent appeal to the Arizona Court

bailed

a ee

of Appeals was dismissed on the grounds

of not being timely agate James

Stewart Co. v. Cocke, Civil Nol

1-¢ ~CA-CiV-2206 (Ariz. . App. May 17,

1973). Following Genial of Petitioner's

motion for rehearing, no further state

court action was taken by him. However,

ie = to comply with the judgment

of september 27, 1972 and Respondents

Ji nes. Stewart Company and the Hornes,

tion to the state trial

upen ay plic. 2

court, obtained a writ of assistance

to enforce the September 27, 1972

ial, apa (Peti t ioner's Ay as Xy Ds

13 IU Q-] ae ) .

Peti itioner then hroudaht this « iit

under the Civil Rights Act in the feder

al district court The defendants be-

.

low and Pespondents herein filed motions

i

to dismiss on varicus arounds.

The District Court disinissed the

Petitioner's complaint with prejudice.

The Ninth Circuit Court of Appeals

affirmed the District Court's «a

pursuant to Respondent's mot

affirm, Cocke v. Cantor, et al

pects a as Peed. m we eee 2 aw

74-1997 (October 7, 1974), and this

petition followed.

Jurisdiction is conferre d upen

Be m1 Neda

the district court, 28 U.S.C.A. (§1343,

to review State court judgments entered

in violation of Petitioner's right to

due process of law as protected by the

Civil Rights Act. 42 U.S.C.A. §1981

et Seq.

As justification for granting the

writ of certiorari Petitioner asserts,

pursuant to Rule 19, that the lower

courts are not in accord as to whether

a federal court has jurisdiction to re-

view state court judgments entered in

violation of Petitioner's right to due

process of law. In support of this con-

tention Petitioner cites Paul v. Dade

County, 419 F.2d 10 (5th Cir. 1969),

cert. den., 397 U.S. 1065 (1970) and

Concerned Consumer's League v. O'Neill,

371 F.Supp. 644 (E.D. Wisc. 1974).

Petitioner contends that the court in

the Paul case, supra, found that the

district court Rad no jurisdiction to

review a state court's judgment, while

the court in Concerned Consumer's

League, supra, found that a federal

district court did have jurisdiction to

review a state court's judgment. Upon

a closer examination, it is apparent

that these decisions: (1) do net show

a conflict between the circuits-’; (2)

do not conclude as Petitioner has sug-

l/ conceivably, Petitioner might have

argued that the Ninth Circuit's

affirmance of the District Court

in this case, which held that it

had jurisdiction to review the

————— PSRs AIK Ys a ee

‘gested; and, (3) are both distinguish-

able from the case at bar.

Petitioner has failed to show a

conflict between the circuits as Paul

v. Dade, supra, is a decision rendered

by the Fifth Circuit and Concerned Con-

sumer's League, supra, is a decision

rendered by a federal court for the

Eastern District of Wisconsin. 2/ Fur-

thermore, the holding in neither case

is consistent with Petitioner's

interpretation. The court in Paul,

supra, did not address itself to the

issue of whether a federal court can

review a state court judgment entered

in alleged violation of due process

pursuant to the Civil Rights Act. The

court states that a federal district

court is without jurisdiction to hear

federal constitutional claims already

litigated in state court where there

is an appealable judgment by a state

court at the time the federal suit is

instituted. The court in effect held

that constitutional issues sought to be

raised in federal district court which

state court judgments allegedly ren-

dered in violation of Petitioner's

civil rights, conflicts with the

Fifth Circuit's holding in Paul v.

Dade, supra. However, for reasons

set forth such an argument would

be without merit.

See Footnote l.

were previously raised, determined and

denied in a prior state action are not

issues which the federal district cou~*

has jurisdiction to reconsider.

The court in Concerned Consumer's

League, supra, likewise never addressed

itself to the issue of a federal court's

ability under the Civil Rights Act to

review a state court judgment entered

in alleged violation of the Petitioner's

right to due process. There the court

referred to the district court's abili-

ty to render a decision enjoining the

enforcement of a state court's injunc-

tion. The court referred to the feder-

al anti-injunction statute saying that

actions initiated under 42 U.S.C.A.

§1983 of the Civil Rights Act were ex-

cepted from that limiting statute and

that the court was not restricted from

prohibiting enforcement of a state court

injunction.

Moreover, both of these cases are

distinguishable from the case at bar.

In Paul, supra, the plaintiff brought

an action in a state court alleging

violation of his constitutional right

of freedom of religion. In a subse-

quent federal action, predicated on the

Civil Rights Act, he attempted to reli-

tigate the same constitutional issues.

Here, Petitioner did not allege viola-

tion of his constitutional rights in

the state court action. The court's

holding in Paul, supra, with respect to

jurisdiction of the federal district

court is, therefore, distinguishable

from the instant case,

In Concerned Consumer's League,

supra, the court addressed itself to

the issue of whether the federal anti-

injunction statute would limit the

court's ability under the Civil Rights

Act to prohibit enforcement of a state

court injunction. Certainly the in-

stant action does not involve a state

court injunction nor the federal anti-

injunction statute and is, therefore,

distinguishable from Concerned Consu-

mer's League, supra.

The decision of the District

Court in the present action is fully in

accord with several major decisions of

this Court, which has held in the two

major cases of Jones v. Mayer Co., 392

U.S. 409, 412 (1968) and Lynch v.

Household Finance Corp., 405 U.S. 538,

543, 544 (1972), that the rights to due

process of law and equal protection of

the laws are guaranteed to any person,

and that the remedy for deprivation of

such rights is provided by the Civil

Rights Act, Title 42 U.S.C.A. §1981, et

seq., jurisdiction over the enforcement

of which is given to the district court

by Title 28 U.S.C.A. §1343. The court

in Jones, supra, and,Lynch, supra,

follows its earlier decisions of Hague

v. Committee for Industrial Organiza-

tion, 307 U.S. 496, 507, 508 (1939) and

Douglas v. City of Jeannette, 319 U.S.

’ ’ ~ In addition, all

of the circuits have referred to and

appear to be in accord with these major

cases.

The decision herein is not in con-

flict with the decisions of other cir-

cuits nor is it contrary to any deci-

Sion of this Court. It is clear that

the District Court had jurisdiction over

any claims of Petitioner arising under

the Civil Rights Act. Indeed, it so

held in dismissing Petitioner's com-

Plaint which action was affirmed by tte

Ninth Circuit Court of Appeals.

Lz

The District Court did not err in

finding that the state court had juris-

diction in the original litigation.

Petitioner alleges that the judg-

ments entered by the state court viola-

ted his right to due process of law be-

cause the court had no jurisdiction over

the subject matter of his case. The

District Court held that the state court

did have subject matter jurisdiction,

but with regard to the complaint said:

(Petitioner's Appendix, pp 160-161.)

"2 « e« efit) failed to demon-

strate that the defendants

used the courts unequally a-

gainst him [Petitioner], or

that the process was a sham,

Or that any significant right

was denied him [Petitioner]

10

a f F Sar - WE OR PN Vy SF Ne ee , ORS aes

without legal justifica-

tion. It is not made

clear how any one indivi-

dual acted alone or in con-

spiracy to accomplish such

a result. . . .The complaint

does not state a claim under

the Civil Rights Act."

[Brackets supplied. ]

The first page of the answer and

counterclaim clearly indicates that the

Petitioner himself invoked the juris-

‘diction of the Superior Court in June,

1969. The legal description of the

real property attached to the complaint

Shows that the property involved in the

State court litigation was located in

Maricopa County, Arizona. Therefore,

the Superior Court clearly had juris-

diction over the real property located

in Maricopa County, which was the sole

subject of Petitioner's litigation.

Moreover, as pointed out in Respondent

Transamerica's response herein, juris-

diction over the subject real estate

escrow is likewise apparent. (fTrans-

america's Brief in Opposition, ae Pe

It is respectfully submitted that the

state court having jurisdiction over

the person, the property of Peti-

tioner, and subject matter had

jurisdiction to enter the judgments

which Petitioner now seeks to reliti-

gate under the Civil Rights Act.

The substance of Petitioner's

jurisdictional argument is the conten-

11

tion that the courts proceeded to judg-

ment in the absence of indispensable

parties. The District Court addressed

itself to that issue saying:

"It is well settled that

the considerations in Rule

19(b) [F.R.C.P.] are equit-

able, not jurisdictional.

‘To say that a court must

dismiss in the absence of

an indispensable party and

that it cannot proceed with-

out him puts the matter the

wrong way around: a court

does not know whether a par-

ticular person is indispens-

able until it has examined

the situation to determine

whether it can proceed with-

out him.'" Provident Trades-

mens Bank & Trust Co. v.

Patterson, 390 U.S. 102,

119. [Brackets supplied.]

Petitioner's jurisdictional argu-

ments were more specificaliy set forth

in his complaint before the District

Court. (Petitioner's: Apper.dix, p 39-

50.) These same arguments which Peti-

tioner is attempting to relitigate,

were dealt with by the Arizona Court of

Appeals in Cocke v. Transamerica Title

Insurance Co., 16 Ariz. App. 556, 494

P.2d 756 (1972), where the court stated:

", . « - [Petitioner] contends

the trial court lacked juris-

12

ee

diction in this matter

for the following rea-

sons:

(1) Because Trans-

america's counter-

CLAam for attorney's

fees was based upon

only one provision of

the escrow instruc-

tions-~-granting the

escrow agent aitorney's

fees--‘it is elemental

that a party to a con-

tract cannot come into

court seeking the en-

forcement of only its

claimed rights uncer

selected provisions of

the contract, without

regard to its obliga-

tions under the other

Provisions also incor-

porated into its plead-

ings, Since such relief

is beyond the power or

jurisdiction of the

court to grant.’

(2) Transamerica did not

erp the other perty

to the escrow instruc-

tions in its counter-

claim for attorney's

fees and such other

party was ‘indispen-

able'

13

(3) Since Transamerica's

counterclaim did not

join the minor bene-

ficiaries of a trust

formed by Mr. and Mrs.

Cocke, the trial court

was without jurisdic-

tion to proceed.

; Turning to the last 'juris-

F Gictional' argument fi rst, as

z we have previously pointed out

: ina f otnote, our deci: ion in

: Cocke v. Cocke, supra, held

: that the interest of Mrs. Cocke

ke in the real property involved

: in this sale was not ject

é to any trust. PO argue at

’ this late date that the bene-

b ficiaries of that trust still

r have an interest in the dis-

; position of this real property

3 and therefore are indispen-

sable parties, not only taxes

the patience of this Court

but calls into serious ques-

tion the advocacy of appel-

lant's counsel.

ews ee ey

(2) The appellant's

first ‘jurisdicticnal'

ground is also without

merit. There is no conten-

tion that the trial court

did not obtain personal

jurisdiction over appellant

and appellee and that they

were not properly before

the Court. There is like-

14

wise no contention that

the trial court lacked

subject matter jurisdic-

tion to determine whether

Transamerica was guilty of

negligence or breach of

fiduciary duty in adminis-

tering the escrow agree-

ment. If we understand

appellant's argument cor-

rectly, it is that if a

person is a party to a

contract, one provision of

which allows a prevailing

party attorney's fees in

any litigation arising out

of that contract, the party

to that contract may not sue

under that provision alone

because to do so in some

manner fails to consider

all the other provisions of

the contract and thus would

abrogate those other provi-

sions which the court has

no jurisdiction to do. To

State the proposition is

to show its preposterous-

ness. Admittedly, the

trial court might err in

determining that a party is

entitled to attorney's fees,

but ‘error' and 'jurisdic-

tion' are two wholly separ-

ate and distinct concepts,

and jurisdiction is not in-

volved in the foregoing

situation.

15

pcs, oe

7

~

rae 4

eR miele. re Ue ~ bl

ORCI ARR ere eeeceteneeoeennnemressaee i

en itu

tion that the courts proceeded to judg-

ment in the absence of indispensable

parties. The District Court addressed

itself to that issue saying:

"It is well settled that

the considerations in Rule

19(b) [F.R.C.P.] are equit-

able, not jurisdictional.

‘To say that a court must

dismiss in the absence of

an indispensable party and

that it cannot proceed with-

out him puts the matter the

wrong way around: a court

does not know whether a par-

ticular person is indispens-

able until it has examined

the situation to determine

whether it can proceed with-

out him.'" Provident Trades-

mens Bank & Trust Co. v.

Patterson, 390 U.S. 102,

119. [Brackets supplied.]

Petitioner's jurisdictional argu-

ments were more specifically set forth

in his complaint before the District

Court. (Petitioner's Appendix, p 39-

50.) These same arguments which Peti-

tioner is attempting to relitigate,

were dealt with by the Arizona Court of

Appeals in Cocke v. Transamerica Title

Insurance Co., 16 Ariz. App. 556, 494

P.2d 756 (1972), where the court stated:

". . « . [Petitioner] contends

the trial court lacked juris-

12

Giction in this matter

for the following rea-

sons:

(1) Because Trans-

america's counter

claim for attorney's

fees was based upon

only « one provision of

the escrow instruc-

tions- jranting the

SC row AGE nt atta 1ey

fees-="'it is elemental

that a party to a con-

tract cannot come into

court seeking the en-

forcement of Only its

Claimed rights under

selected provisic

the contract, without

“regard to its obliga-

past under the other

Pi visions also ir 1cor=

‘s

ay since such faltat

S beyond the power or

urisdiction of the

ourt to grant,"

(2). Transamerica did not

join the other p

1€ if arty

to the escrow in: sLiuc-

tions in ite counter-

Claim for at torney's

fees and such Other

£

t

party was 'indispen-

able' .

13

I TNR NERA PoMmeIgt Shee Pt

(3) Since Transamerica's

counterclaim @id not

join the minor bene-

ficiaries of a trust

formed by Mr. and Mrs.

Cocke, the trial court

was without jurisdic-

tion to proceed,

furning to the last "fur

‘ gui G4 t, as

7 1 a t ( Le, r ad : on

Cocke v. Cocke, a, held

] E the : ate) ap ee

n the 1 pr ty lived

n S ile a bject

O.any 1 ey Oo gue at

this Le te cate that the 5 ne~-

ficiaries of that trust stj il

have an inter st in the die-

position of this real broperty

ind therefore re indispen-

ble parties, not only taxes

ihe patience of this Court

first jurisdictional'

ground is also thout

merit. There iS no conten-

tion that the trial court

Gid not obtain personal

jurisdiction over appellant

and appellee and that they

were not properly before

the Court. There is like-

14

Oe Oe eee ae eS Ra

ee ae

wise no contention that

the trial court lacked

subject matter jurisdic-

tion to determine whether

Transamerica was guilty of

negligence or breach of

fiduciary duty in adminis-

tering the escrow agree-

ment. If we understand

appellant's argument cor-

rectly, it is that if a

person is a party to a

contract, one provision of

which allows a prevailing

party attorney's fees in

any litigation arising out

of that contract, the party

to that contract may not sue

under that provision alone

because to do so in some

manner fails to consider

all the other provisions of

the contract and thus would

abrogate those other provi-

sions which the court has

no jurisdiction to do. To

state the proposition is

to show its preposterous-

ness. Admittedly, the

trial court might err in

determining that a party is

entitled to attorney's fees,

but ‘error' and ‘jurisdic-

tion' are two wholly separ-

ate and distinct concepts,

and jurisdiction is not in-

volved in the foregoing

situation,

15

(3) Appellant's next

a

1.1

argument that the buyers

un@er the escrow instruc-

tions were ‘indenspensable

parties" to Transamerica's

counterclaim against appel-

lant is also without merit.

Transamerica's claim for

attorney's fees arose out

of and only out of Ccefend-

ing appellant's alleged

alain . t it ft wa

>] . i S

4 A 4 > ’

71 ‘ ' | ] ke

‘

5 } d [@)

x; % .

7 ‘ i ey i's S

2

> ’

‘ - ? . ~

° ~ +. a ’

S ' | > I

. «

nor any other party to the

CScrow agreement would even

be proper parties to Trans-

emerica's claim for attor-

ney's fees, let alone in-

Gispensable parties.

”_

or the foregoi:

EONS we hold the tria

hed jurisdiction to deter-

in e the Ssu Ss pd] ine a be be

I

fore it." 494 P.2q@ at 7 as

n the e of Scott v. Cal c

.. a > 4 , +3 n a, ; —~

5 Be ups ‘ ‘ t, S £720 D (9th

“IT } FF .} . »- i +. 3. = --%

Saks BE 1970), Line Ourt held that where

the state court had valid jurisdiction

and plaintiff simply Jost his case,

plaintiff was absolutely precluded from

collaterally attacking the judgment of

the state court under the guise of the

16

.

a

:

a4

3

a

BS |

»

;

eR Oe, eee

bn ie

POP a ER PUSS

Civil Rights Act. The Ninth Circuit

has also held in Francisco Enterprises,

Inc. v. Kirby, 482 F.2d 481 (9th Cir.

1973), that res judicata principals

will apply to preclude parties from re-

litigating constitutional claims ina

federal district court subsequent to an

adverse judgment on the merits of such

claims by a state court of competent

jurisdiction.

Petitioner's jurisdictional argu-

ments are without merit and constitute

no more than an attempt.to relitigate

issues already decided in the state

courts.

Le ® |

Petitioner's action against attor-

neys Kelly, Tanner and Schneider is

frivolous and without merit.

The substance of Petitioner's

argument to the District Court is that

the Respondents acted in concert to

deprive him of his constitutional right

to due process. In his complaint Peti-

tioner fails to state anything upon

which a cause of action against attor-

neys Kelly, Tanner and Schneider could be

based under the Civil Rights Act. A re-

view of the record demonstrates that Pe-

titioner simply attempts to relitigate

issues already tried in state court.

It is well settled that the assertion

of a violation of Petitioner's rights

and a conspiracy cannot be used as a

guise to relitigage substantive issues

17

already adjudicated at the state court

level. Francisco Enterprises, Inc. v.

Kirby, supra; Morgan v. Sylvester, 125

F.supp.s 380, @££°a. 220 F.i4a 198 (2nd

Cir. 1955); and, French v. Corrigan,

432 F.2d 1211 (7th Cir. 1970). cate

Petitioner fails to allege any

facts upon which a cause of action

could be based under the Civil Rights

Act against these attorneys. He merely

mentions them as being attorneys for

their respective clients.

It is well settled in federal law

that activities of a private attorney,

in his capacity as a representative for

a client, cannot be the basis for a

cause of action under the Civil Rights

Act. In several cases it has been held

that a court-appointed attorney ina

criminal proceeding is immune from suit

based on a Civil Rights Act because his

acts cannot be considered performed

under color of law. french v. Corrigan,

supra, and Brown v. Joseph, 463 F.2d —

1046 (3rd Cir. 1972). The same ration-

ale has been used to give a court-

appointed attorney immunity for his

acts in representing a trustee in bank-

ruptcy. Smallwood v. United States,

358 F.Supp. 398 (B.D. Mo. 1973). If

a court-appointed attorney can be held

immune from a suit under the Civil

Rights Act for any activities arising

out of his representation of a client

it would seem even more rational that

a private practitioner should be immune

from the same.

18

se WEL na FIMO OES IE? ai iad

rape Rese Ia Wh MIEN CERNE INE I

Furthermore, with respect to

Petitioner's allegations of conspiracy,

the District Court found that:

" . . .reading the complaint

with every intendment in its

favor, it fails to demonstrate

that the defendants used the

courts unequally against him

[Petitioner], or that the pro-

cess was a sham, or that any

significant right was denied

him [Petitioner] without legal

justification. It is not made

clear how any one individual

acting alone or in conspiracy

to accomplish such a result. .

. .the complaint does not state

a claim under the Civil Rights

Act." Scott v. California

Supreme Court, 426 F.2d 300

(9th Cir. 1970).

CONCLUSION

For the reasons set forth above,

Respondents respectively submit that

the Petition for Certiorari should be

denied.

Respectfully submitted

YR

“HUBERT E. KELLY /7

550 West Washington

Phoenix, Arizona 8500

and

19

pa hee ae " ee ee ee

TANNER, JARVIS, OWENS & HOYT

WALLACE O. TANNER

3800 North Central Avenue

Phoenix, Arizona 85012

Attorneys for Respondents

Steven H. Schneider, Fsq.,

Title Insurance Company

of Minnesota, James Stewart

Company, M. Seth Horne ana

Maurine D. Horne, his wife,

Arleigh H. Burton, and in

propria persona for

themselves

20

SAN

CERTIFICATE OF SERVICE

adi hereby certify that on this

<3 day of July, 1975, three copies

of the Brief in Opposition to Petition

for a Writ of Certiorari were mailed,

postage prepaid, to the following

attorneys. I further certify that all

parties required to be served have been

served.

John R. Sticht

Attorney for Respondents

Irwin S. Cantor, Eino M. Jacobson,

and Francis J. Donofrio

309 State Capitol Building

Phoenix, Arizona 85007

Powell B. Gillenwater

Browder & Gillenwater, P.C.

Attorneys for Respondent Transamerica

2304 First Federal Savings Building

3003 North Central Avenue

Phoenix, Arizona 85012

Ralph E. Hunsaker, Esq.

O'Connor, Cavanagh, Anderson,

Westover, Killingsworth & Beshears

1800 First Federal Savings Building

3003 North Central Avenue

Phoenix, Arizona 85012

Loretta S. Whitney

Attorney for Respondent Joan H. Cocke

603 Luhrs Building

Phoenix, Arizona 85003

21

Richard Anthony Johnson

Counsel for Petitioner

132 South Central Avenue

Suite 7

Phoenix, Arizona 85004

HUBERT EF. SELLY

550 West Washingto

Phoenix, Arizona 03

and

TANNER, JARVIS, OWENS & HOYT

Oe ata O. TANNER

3800 North Central Avenue

Phoenix, Arizona 85012

Attorneys for Respondents

Steven H. Schneider, Esq.,

Title Insurance Company of

Minnesota, James Stewart

Company, M. Seth Horne and

Maurine D. Horne, his wife,

Arleigh H. Burton, and in

propria persona for themselves

22