# Opposition Brief — Cocke v. Cantor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1154%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1975 - **Citation:** 423 U.S. 835 ## Text | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1154%3A5. Public record. Not legal advice.