Opposition Brief — Whelchel v. City of Covington

Suprarae Court, US, |

99-1349 FILED

No.

sonemmnmmterne

IN THE

SUPREME COURT OF THE UNITED SHATES %****

AUBREY WHELCHEL,

Petitioner

Vv.

CITY OF COVINGTON, GEORGIA,

CITY COUNSEL OF COVINGTON,

JIM BERRY, JOHN M. OTT, in his official capacity,

SUPERIOR COURT OF NEWTON COUNTY,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For the Eleventh Circuit

RESPONDENTS CITY OF COVINGTON, GEORGIA,

CITY COUNCIL OF COVINGTON, AND

SUPERIOR COURT OF NEWTON COUNTY’S

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Karl Braun, Esq.

Counsel of Record

Phillip E. Friduss

Russell E. Owens

HALL, BOOTH, SMITH &

SLOVER, P.C.

Suite 2500

230 Peachtree Street, N.W.

Atlanta, Georgia 30303-1515

(404) 954-5000

II.

II.

(i)

QUESTIONS PRESENTED

(As identified by Petitioner)

Whether the Rooker-Feldman Doctrine is applicable to

the facts of the case and issues raised and controlling.

Whether inverse condemnation statutes are applicable

statutory alternative avenues for relief which invalidates

a party’s statutory rights to relief under Title 42 U.S.C. §

1983, against individual actors.

Whether the Rooker-Feldman doctrine invalidates relief

under the rights granted by Pulliam v. Allen.

(11)

PARTIES TO THE PROCEEDING

Aubrey Whelchel

City of Covington, Georgia

City Council of Covington

John M. Ott, Superior Court Judge

Superior Court of Newton County

Jim Berry

Plaintiff/Petitioner

Defendant/Respondent

Defendant/Respondent

Defendant/Respondent

Defendant/Respondent

Defendant/Respondent

(iii)

OPINIONS BELOW

Whelchel v. City of Covington, et al., Order, United States District Court

for the Northern District of Georgia, Judge Carnes, October 20, 1998.

(Dismissing Petitioner’s civil rights complaint.)

Whelchel v. City of Covington, et al., (not published) Opinion of the

Eleventh Circuit Court of Appeals, September 10, 1999.

(Affirming decision of district court.)

Whelchel v. City of Covington, et al., (not published) Opinion of the

Eleventh Circuit Court of Appeals, October 29, 1999.

(denying Petition for Rehearing.)

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the

Eleventh Circuit (“Court of Appeals’’) was entered on September 10,

1999. The Court of Appeals denied a timely filed petition for rehearing

on October 29, 1999.

Petitioner invokes the jurisdiction of this Court under 28 U.S.C.

§ 1257.

(iv)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

(As identified by Petitioner)

The First Amendment to the United States Constitution provides:

Congress shall make no law respecting an establishment

of religion, or prohibit the free exercise thereof; or

abridging the freedom of speech, or of the press, or the

right of the people to peaceably assemble, and to petition

the Government for a redress of greivances.

The Fourth Amendment to the United States Constitution

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

The Fifth Amendment to the United States Constitution provides

in relevant part: “No person shall . . . be deprived of life, liberty, or

property, without due process of law; nor shail private property be taken

for public use, without just compensation.”

The Fourteenth Amendment to the Unites States Constitution

provides in relevant part: “No State shall . . . 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.”

(v)

TABLE OF CONTENTS

Page

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II. The Rooker-Feldman doctrine is controlling in the

instant case, and bars Petitioner’s claims from federal

ee er mee eget mre rete 3

Il. As avenues of relief were available to Petitioner

under state law, his 42 U.S.C. § 1983 claims are

| Er re ery a re reer y 6

IV. Petitioner’s claims are barred by the Rooker-Feldman

doctrine, notwithstanding Pulliam v. Allen............ 7

V. COIR. i. oink ks as Renee kos Resto wasekonseees 8

(vi)

TABLE OF CITATIONS

Cases cited:

Agripost, Inc. v. Miami-Dade County, 195 F. 3d 1225 (11" Cir. 1999)...

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SSP SBaSG EAGBAPSSC KODA SAE OPeEPSAse Sa Fe B44 9- 2A EOS OES

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

SUS &. CR ESe CHE 2 00 4isgs enaa ves uwauseanen ase 4

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S. Ct. 1519 (1987). ...... 5

Powell v. Powell, 80 F. 3d 464 (11" Cir. 1996) ................. 4,5

Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970 (1984). ............ 7,8

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923) ...... 4

Williamson County Regional Planning Commission v. Hamilton Bank,

egies Bb EF Eee) ft, | eRe 7,9

Statutes cited:

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United States Constitution cited:

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Georgia Constitution cited:

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1

STATEMENT OF THE CASE

Whelchel owns property located at 4132 and 4134 Turner Street

in Covington, Georgia.’ (R-1-2). During the course of his ownership of

the property, the city passed ordinances and codes concerning housing

within the city. (R-1-2). The City, through the Building and Zoning

Department ("Department"), inspected Whelchel's houses and

determined that the houses did not meet building codes. The Department

served a letter on Whelchel concerning the violations. (R-1-2). After

receiving the letter, Whelchel appeared in front of the Building and

Zoning Board ("Board") and advised the Board that he was making

improvements to the houses. (R-1-2, 3). The Board issued a building

permit to allow Whelchel to commence making repairs and renovations

to the property to bring the houses up to the code requirements. (R-1-3).

Jim Berry ("Berry"), a housing inspector for the Board,

monitored Whelchel's repairs on the property. In April of 1996,

Whelchel requested that Berry inspect the property, notifying him that

Whelchel planned to paint and improve the outside of the homes to bring

the houses up to code. (R-1-3). Berry inspected the premises and issued

a "Sworn Complaint of Violation of the City of Covington's Code of

Ordinances" based upon section 301.1 of the city code. (R-1-3).

Whelchel alleges that the complaint failed to state with specificity the

* This recitation of facts comes verbatim from N.D. Ga.

Judge Carnes' depiction of same. The allegations of fact were

taken as true for purposes of the Eleventh Circuit’s review of the

trial court's grant of these Respondents’ Motion to Dismiss.

2

basis of the complaint to adequate enable Whelchel to tender an answer.

(R-1-3).

On April 24, 1996, and May 22, 1996, the Municipal Court of

the City of Covington, Chief Judge Jerry O. Capes, heard the matter and

issued an order finding that: (a) the premises and property constituted a

nuisance as contemplated under Section 1-123(d) of the code and (b)

Whelchel has failed to abate the nuisance. (R-1-3, 4). The matter was

transferred to the City Council of the City of Covington ("City Council")

for further consideration. (R-1-4).

On June 3, 1996, Whelchel appeared before the City Council and

challenged the accuracy of evidence offered by Berry in the court

proceeding. (R-1-4). On the same date, the City Council placed into the

formal record of the proceedings that Judge Capes was to amend his

order to include a finding "[t]hat it was the opinion of the Court that the

cost of repairs, alteration, and/or improvements needed in order to meet

the minimum requirements of the Code of Ordinances for the City of

Covington of the two structures will exceed one-half of the value of the

two houses when repaired to satisfy the minimum requirements of the

Code of Ordinances of the City of Covington." (R-1-4). On June 4,

1996, Judge Capes issued the amendment. (R-1-4).

On July 3, 1996, Whelchel tendered a handwritten appeal to the

Superior Court of Newton County within thirty days of the judgment by

the City Council. (R-1-5). Before the Newton County Court considered

the appeal, on August 28, 1996, the City of Covington entered

3

Whelchel's property and destroyed the two homes. (R-1-5). On July 21,

1997, Judge Ott dismissed the appeal. The order of dismissal was

entered on July 22, 1997. (R-1-5).

ARGUMENT

I. Introduction

The Eleventh Circuit correctly decided that Petitioner’s federal

civil rights claims, brought following his loss of a zoning issue in state

Superior Court, is barred by the Rooker-Feldman doctrine. Petitioner’s

pursuit of claims in federal court necessarily call into question the

judgment of the state Superior Court on the zoning issue, and the issues

involved in Petitioner’s federal claims are inextricably intertwined with

the state court ruling. Adequate state court remedies also exist to redress

Petitioner’s concerns. For these reasons, Petitioner’s Petition for Writ of

Certiorari should be denied.

Il. The Rooker-Feldman doctrine is controlling in the instant

case, and bars Petitioner’s claims from federal court.

The relief Petitioner sought from the Northern District of

Georgia would have necessitated a review of the Newton County

Superior Court’s final judgment. In support of his federal civil rights

suit, Petitioner alleged in his Complaint that Superior Court Judge Ott

‘ 4

did “dismiss Plaintiff's appeal so as to deprive Plaintiff of such

constitutional rights.” Petitioner’s District Court Complaint, Count 3,

45. One can scarcely deny that Petitioner called upon the federal

district court, a court of original jurisdiction, to review the judgment of

the Superior Court.

A federal district court lacks subject matter jurisdiction to review

the decision of a state superior court. See District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 483, 103 S. Ct. 1303, 1316 (1983) (“a

United States District Court has no authority to review final judgments

of a state court in judicial proceedings.”). The Rooker-Feldman

reasoning is two-fold. First, district courts are courts of original

jurisdiction (28 U.S.C. § 1331). See Powell v. Powell, 80 F. 3d 464, 466

(11" Cir. 1996) and Rooker v. Fidelity Trust Co., 263, U.S. 413, 416, 44

S. Ct. 149, 150 (1923) (“jurisdiction possessed by the District Courts is

strictly original.”). For the District Court to review a decision of a state

court in Petitioner's case would be an attempt to exercise appellate

jurisdiction. Second, the statutory scheme is such that these types of

cases should first go to the “highest court of a State in which a decision

could be had,” and then should be appealed to the United States Supreme

Court. See 28 U.S.C. § 1257. Neither occurred here.

In addition to barring claims that directly review state court

decisions, the Rooker-Feldman doctrine also bars claims that are

“inextricably intertwined” with the state court judgment. See Feldman,

460 U.S. at 482 n. 16, 103 S. Ct. at 1315 n. 16. Whether the exact claim

pSaeatenns

5

raised in federal court was also raised in state court is immaterial as long

as the federal claim is “inextricably intertwined” with the state court’s

judgment. See Powell v. Powell, 80 F. 3d 464, 466 (1 1" Cir. 1996).

Review of a federal court claim that is sufficiently intertwined with the

issues decided in state court serves as a form of appellate review. See

Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225, 1229 n. 7 (11" Cir.

1999) quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S. Ct.

1519, 1533 (1987) (Marshall, J., concurring) (“A federal claim is

intertwined with the state court judgment ‘if the federal claim succeeds

only to the extent that the state court wrongly decided the issues before

ee

If the federal district court were to assume jurisdiction over this

matter not even appealed to the Georgia Supreme Court and then find in

favor of Petitioner, that court would have to conclude that the state court

wrongly decided his case. It is the decision itself which Petitioner has

alleged violated his constitutional rights. Additional, inextricably

intertwined claims were also presented by Petitioner to the district court.

These included takings and due process claims. Federal court review of

these claims would necessarily require inspecting the same evidence

presented to the Municipal Court in consideration of the zoning issue.

Claims related to the destruction of the actual houses are legally

equivalent to claims challenging the zoning violations judgment and

dismissal of the appeal of that judgment. The houses were destroyed as a

procedural result of the zoning violations.

6

Regardless of the “destruction” issue, the lower court decision

was never appealed all the way up the Georgia appellate chain. Only if

Petitioner had been denied relief by the Georgia Supreme Court could a

federal court exercise subject matter jurisdiction over the claims

presented in this action. As the Eleventh Circuit correctly decided that

the district court was without subject matter jurisdiction to hear

Petitioner’s claims, Petitioner’s petition for writ of certiorari to this

Honorable Court should be denied.

Il. As avenues of relief were available to Petitioner under state

law, his 42 U.S.C. § 1983 claims are not cognizable.

Petitioner presented a Fifth Amendment takings claim to the

District Court based on the City’s condemnation of two of his buildings.

The district court correctly dismissed this claim as not ripe for

adjudication. Whelchel v. City of Covington, et al., Order, United States

District Court for the Northern District of Georgia, Judge Cames,

October 20, 1998. The district court’s reasoning is well phrased by the

Eleventh Circuit in Agripost, Inc. v. Miami-Dade County, 195 F.3d

1225, 1229 n.8 (11™ Cir. 1999), addressing a claim that revocation of a

zoning permit was an unconstitutional taking. The court in Agripost

ruled that “if the state has established a process for obtaining

compensation, the property owner cannot prosecute a takings claim

under the Fifth and Fourteenth Amendments unless he alleges that the

7

state process is inadequate.” Id., citing Williamson County Regional

Planning Commission v. Hamilton Bank,473 U.S. 172, 194, 105 S. Ct.

3108, 3120-22 (1985). The Eleventh Circuit affirmed the district court’s

decision dismissing Agripost’s takings claim on ripeness, for failure to

pursue the state’s inverse condemnation remedy. Id. at 1230.

In the instant case, Petitioner failed to pursue any of the

numerous avenues available to him under Georgia law. As explained to

the Eleventh Circuit, the most apparent available claim was on for the

taking of property without just compensation. See Ga. Const. Art. I, §

III, ¥ 1 and Bickerstaff Clay Production Co. v. Harris County, Georgia,

89 F.3d 1481 (11" Cir. 1996). Similarly, Petitioner could have claimed

Respondents inversely condemned his property. As Whelchel has not

availed himself of available avenues under Georgia law, his Fifth

Amendment claim was properly dismissed, and the Petition for Wnt of

Certiorari should be denied.

IV. Petitioner’s claims are barred by the Rooker-Feldman

doctrine, notwithstanding Pulliam v. Allen.

Petitioner’s Pulliam v. Allen arguments regarding judicial

immunity apply primarily to Judge Ott, who is not represented by these

Respondents. However, the argument still fails to warrant a grant of

Petition for Writ of Certiorari. Petitioner has asked this Court for

“clarification of the Pulliam decision” and its interplay with the Rooker-

8

Feldman doctrine. The facts of the case at bar do not warrant such an

exploration. The case of Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970

(1984), addressed whether judicial immunity is a bar to prospective

injunctive relief against a judge and the award of attorney fees in such a

case. The Rooker-Feldman doctrine addresses subject matter jurisdiction

of a federal court when a plaintiff's 42 U.S C. § 1983 claim may

collaterally review a state court decision. In the present case, Petitioner

fails on both accounts.

Petitioner’s claims against Judge Ott and the Superior Court of

Newton County allege a single, past incident. The district court found

this insufficient to state a claim for injunctive relief. Whelchel v. City

of Covington, et al., Order, United States District Court for the Northern

District of Georgia, Judge Carnes, October 20, 1998. As injunctive relief

could not be supported, Pulliam became inapplicable. Id. Petitioner's

claims are also barred by the Rooker Feldman doctrine, as set forth

above and by the Eleventh Circuit. See Whelchel v. City of Covington,

et al., (not published) Opinion of the Eleventh Circuit Court of Appeals,

September 10, 1999.

V. CONCLUSION

Petitioner’s claims of constitutional violation stem from the

judgments of state courts in his zoning dispute with the City. Review of

those constitutional claims would not only touch upon the state

judgments, but directly review the state decisions and issues inextricably

9

intertwined with them. Petitioner’s claims are properly brought before a

state court of appellate jurisdiction, as they involve the propriety of the

application of state zoning and inverse condemnation laws in his case.

Under the Rooker-Feldman doctrine, the federal district court is without

jurisdiction to hear Petitioner’s claims, and under Williamson County

Regional Planning Commission v. Hamilton Bank, Petitioner’s takings

claims are barred for want of ripeness.

WHEREFORE, Respondents respectfully request this Court

DENY Petitioner's petition for writ of certiorari.

re Ps

This 6 day of March, 2000.

HALL, BOOTH, Oy & SLOVER, P.C.

Ki; of Braun, Esq.

Georgia Bar No. 078528

Counsel of Record

ly

Phillip E. Priduss, Esq.

Georgia Bar No. 277220

$l :

Rassell E. Owens, Esq. ge

Georgia Bar No. 557579 :

230 Peachtree Street, N.W.

Suite 2500

Atlanta, GA 30303-1515

404-954-5000