Petition for Writ of Certiorari — Wilson v. Harlow

Supreme Court, u.3.

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BS= 104 6 DEC 29 s995

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CHARLES D. "CHARLEY" WILSON

Petitioner

VS.

JAMES G. HARLOW, JR., G.W. "BILL"

SWISHER, JR., JOHN F. SNODGRASS,

MARTHA A. GRIFFIN, JOHN A. TAYLOR,

HERBERT W. CHAMPLIN, WILLIAM D.

LITTLE, JR., F. DAIL HARPER, and

HUGH L. HEMBREE, III

Respondents

On Petition for a Writ of Certiorari to

Supreme Court of the State of Oklahoma

PETITION FOR A WRIT OF CERTIORARI

WHIT PATE THOMAS DEE FRASIER*

Box 785 Box 799

Poteau, Oklahoma 74953 Tulsa, Oklahoma 74104

(918) 647-3200 (918) 584-4724

GENE STIPE

Box 1168

McAlester, Oklahoma 74502

(918) 423-0421 *Counsel of Record

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QUESTION PRESENTED

In an interlocutory appeal from a class certification order the

Supreme Court of Oklahoma by order directed that briefs be limited to

the issues presented by the class certification order. The respondents

ignored the order and filed a 50 page brief only 7 pages of which were

devoted to the class certification issues. The other 43 pages addressed

jurisdictional issues previously decided adversely to respondents. In

keeping with the court's order, petitioner did not brief the jurisdictional

issues. Without extending petitioner notice or an Opportunity to be heard

on the jurisdictional issues the court decided the case on the briefs and

adopted the brief and argument of the respondents on the jurisdictional

issues and decided the case adversely to petitioner

The question presented is:

Did the described internal procedure utilized by the Supreme Court

of Oklahoma deprive petitioner of procedural Due Process of Law under

the Fourteenth Amendment to the Constitiution of the United States?

(1)

TABLE OF CONTENTS

Page

QUESTION PRESENTED 2oo.o....c.ccccscescssesesvevessseesvesesvevees vesveve i

DE EE FART SPORTED vivcesitversinscisectincenrmnnmamene iv

IPSN... ;..3. sa vassesbovapicacecdeanssshdbock Mebsotenycakeaee aaa annaaene l

PIPING 5 25 sa'snac asi svcts-csaneusiacamopneeseucie net ee siecedeenskctan tana l

CONSTITUTIONAL PROVISION INVOLVED ............................ 2

TE TOE MINER cisisevinecekctscecendacetinsanceeenaanee 2

A. Events Giving Rise to Petitioner's Claim ..........................0004. 2

B. Stage At Which Federal Question Raised ........... FS r Ace den 5

REASON FOR GRANTING THE PETITION ........................000.0... 5

The internal procedure utilized by the Supreme Court of Okla-

homa leading to the promulgation of the opinion and the refusal

of the Court to grant a rehearing and withdraw the opinion after

the constitutional infirmity was pointed out to the court through

the petition for rehearing postured that Court in the position of

deciding a federal question that conflicts with the applicable

decisions of the Supreme Court of the United States.

PIED css arvnesccitsccvsvivencerradiincuceneiic meena Ean ene 5

APPENDIX A

Opinion of the Supreme Court of Oklahoma ..................0......... la

APPENDIX B

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APPENDIX C

rr I FOIIIE oaiinis sscnivinecsnccttcentenaunenien .2la

APPENDIX D

Response to appellants’ Motion to Enlarge Brief .................... 22a

APPENDIX E

Order granting leave to file 50 page brief.................00.0000000000... 25a

(ii)

Page

APPENDIX F

Excerpts from petitioner's answer brief disclosing Motion to

Strike Brief in Chief of respondents and reasons for petitioner's

failure to brief the jurisdictional issues 26a

(iii)

TABLE OF AUTHORITIES

Cases Page

Armstrong v Manzo, 380 US 545, 14 L Ed 2nd 62, 85 S Ct 1187

(1965)

Mullane v Central Hanover Bank & Trust, 339 US 306, 94 LEd

865, 70 S Ct 652 (1950) | 5 &

Peralta v Heights Medical Center, Inc., 485 US 80, 99 LEd2 75,

108 S Ct 896 (1988) .......

Tulsa Collection Service v Pope, 485 US 478, 99 L Ed2 565, 108

S Ct 1340 (1988)

United States v Raines, 362 US 17, 4 L Ed2 524, 80 S Ct 519

(Eas

Constitution and Statutes

28 U.S.C. )( 1257 (a)

U.S. Constitution, Amendment XIV

(iv)

6

6

6

5

a

N

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CHARLES D. "CHARLEY" WILSON

Petitioner

VS

JAMES G. HARLOW, JR., G.W. "BILL"

SWISHER, JR., JOHN F. SNODGRASS,

MARTHA A. GRIFFIN, JOHN A. TAYLOR,

HERBERT W. CHAMPLIN, WILLIAM D.

LITTLE, JR., F. DAIL HARPER, and,

HUGH L. HEMBREE, III

Respondents

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Oklahoma

PETITION FOR WRIT OF CERTIORARI

Charles D. "Charley" Wilson petitions this court for a writ of certiorari

to review the judgment of the Supreme Court of Oklahoma in this case.

OPINION BELOW

The not yet reported opinion of the Supreme Court of Oklahoma (App.

infra, 1a-15a) is set forth in full in the Appendix.

JURISDICTION

The opinion and judgment of the Supreme Court of Oklahoma was

entered on July 13, 1993. Petitioner's timely petition for rehearing was

denied October 5, 1993. This court's jurisdiction rests on 28 U.S.C. )

1257 (a). .

eT

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the Constitution of the United

States provides, in pertinent part:

No State shall ****** deprive any person of ****** property

without due process of law ******

U.S. Const. Amend. XIV.

STATEMENT OF CASE

Oklahoma Gas & Electric Company isthe largest public utility in the

state of Oklahoma supplying electrical service to some 600,000 Okla-

homa ratepayers within the state of Oklahoma and an appreciable number

of users in western Arkansas. The respondents constitute the Board of

Directors of OG&E at the times relevant in this lawsuit.

In late 1985, OG&E entered into a contract termed a Power Sales

Agreement with AES wherein AES would construct a $500 million coal-

fired cogeneration plant in LeFlore County, Oklahoma, and OG&E

would accept the production from this plant.

Petitioner commenced this class action lawsuit in state district court

in December, 1988, seeking money damages against the respondents for

common law negligence arising from the discharge of the board's duties

concerning the construction of the cogeneration plan.

From day one the issue in the lawsuit was that of subject matter

jurisdiction of the state district court to entertain the lawsuit. On three

separate occasions the jurisdictional questions were presented to the

Supreme Court of Oklahoma during the ensuing years and on each

occasion the petitioner prevailed. Finally, on the fourth time up, in an

appeal from aclass certification order, the respondents prevailed and the

case was dismissed for want of subject matter jurisdiction. Petitioner's

petition for rehearing was denied.

EVENTS GIVING RISE TO PETITIONER'S CLAIM

The issue on the petition for rehearing and the issue in this petition

for writ of certiorari is whether the internal procedure of the Supreme

2

Te Ee ee a TT

Court of Oklahoma leading up to the promulgation of its opinion in the

case was such as to deprive petitioner of procedural due process of law. '

In order that this issue may be brought into focus it is necessary to

look at events found outside the opinion for nowhere in the opinion are

these events discussed. Facts and events outside the opinion which give

rise to petitioner's claim are:

(a) On August 11, 1992, the respondents filed an interlocutory

appeal from the trial court's class certification order. The papers effecting

the appeal disclosed the respondents intended to raise previously decided

issues going to the jurisdiction of the trial court to entertain the case. On

the same day the respondents filed a motion for permission to file a 50

page brief.

(2) Immediately, on August 14, 1992, petitioner filed a response to

the motion to enlarge brief. (App., infra, 22a). Petitioner pointed out in

this response that much of what respondents intended to bring to the

court in the interlocutory appeal had long since been presented to and

passed on by the court many times.

At this point it is essential the tracking language between the last

paragraph of petitioner's response and the subsequent order of the court

concerning content of the briefs be noted.

The last paragraph of petitioner's response to motion to enlarge

brief read: (App., infra, 23a).

"The appellants may need more than a 30 page brief to say

whatever they have to say about the class action certification issue

in this appeal. However the court should inform appellants that their

brief should be limited to the question of class action certification and

‘ The merits of the court's opinion are not in issue in this petition. We do note,

however, footnote 6 of the opinion which discloses that failure to give notice

to petitioner was not inadvertent or an oversight on the court's part. The

footnote discloses that petitioner had “specifically declined” to address the

issues in his answer brief. No place does the opinion mention that the number

one reason that petitioner had failed to “address” the merits of the subject

matter jurisdiction was because the court had ordered such not be done in its

August 18, 1992, order.

that the court has no need or desire to plow the same ground over on

issues already decided adversely to the appellants. Emphasis sup-

plied.

- Four days later, on August 18, 1992, the court directed the clerk to

enter the following order: (App., infra, 25a)

"On written application and agreement of the parties, appellants are

granted leave t (sic) file by August 31, 1992, brief in chief of 50 pages

in length. Briefis to be carefully limited to issues before the court in

this appeal. Appellee is granted leave to file his answer brief of

comparable length." Emphasis supplied.

(4) Notwithstanding this specially tailored order going to the

content of their brief, the respondents proceeded to file a 50 page brief,

only 7 pages of which were devoted to the class action issues while the

other 43 went to the jurisdictional questions.

(5) Included within his answer brief, petitioner filed a motion to

strike respondents’ brief for a willful violation of the court's order of

August 18, 1992. (App., infra, 26a) In his answer brief, petitioner

assigned the limitations placed on the briefs by the August 18, 1992,

ordez as his number one reason for not briefing these questicns. (App.,

infra, 27a).

(6) Thus the matter stood on briefs before the court. The only

communication petitioner received from the court during the 11 months

the appeal was before the court was dated October 16, 1992, and

informed the parties that the Supreme Court was going to retain the case

and not assign it out to a Court of Appeals. Petitioner received no notice

whatever that the court was even considering modifying the August 18,

1992, prohibiting the briefing of the jurisdictional issues. Petitioner was

not noticed or offered an opportunity to respond and brief the jurisdic-

tional issues.

(7) On July 13, 1993, the Supreme Court of Oklahoma promulgated

and issued the opinion herein. Petitioner's motion to strike respondents’

brief (App., infra, 26a) was ignored and was not mentioned or ruled

upon. The opinion makes no mention of the August 18, 1992, order

a TT NT «

limiting the subject matter of the briefs. The opinion does disclose the

court adopted virtually in toto the brief and argument of the respondents

on the jurisdictional questions in dismissing the case.

STAGE AT WHICH FEDERAL QUESTION RAISED

Under the circumstances of this case the federal quesiion involved

in this petition did not arise or at least was not known to the petitioner

until the opinion was promulgated on July 13, 1993. Upon receipt of a

copy of the opinion, the petitioner filed a timely petition for rehearing

wherein he requested the Supreme Court of Oklahoma to withdraw the

opinion and render the opinion of no effect and void on the grounds that

petitioner had been deprived of procedural due process of law under the

Fourteenth Amendment. (App., infra, 16a-20a).

As previously stated the court denied the petition for rehearing

without comment. (App., infra, 21a).

REASON FOR GRANTING THE PETITION

The internal procedure utilized by the Supreme Court of Oklahoma

leading to the promulgation of the opinion and the refusal of that

court to grant a rehearing and withdraw the opinion after the

constitutional infirmity was pointed out to the court through the

petition for rehearing postured the court in the position of deciding

a federal question that conflicts with the applicable decisions of the

Supreme Court of the United States.

ARGUMENT

The Supreme Court of Oklahoma is bound by the procedural

requirements of the Due Process of Law Clause of the Fourteenth

Amendment. United States v Raines, 362 US 17, 14L Ed2 524, 80S Ct

519 (1960). Petitioner's cause of action is a property interest that is

entitled to the protection of the Due Process Clause of the Fourteenth

Amendment. Mullane v Central Hanover Bank & Trust, 399 US 306, 94

L Ed 384, 70 S Ct 652 (1950); Tulsa Collection Service v Pope, 485 US

478, 99 L Ed2 565, 108 S Ct 1340 (1988). The lack of due process of

law leading to the promulgation of the opinion requires that the opinion

be completely withdrawn and voided and the slate wiped absolutely

clean restoring petitioner to the position he occupied hud due process

been afforded him in the first place. Armstrong v Manzo, 380 US 545,

14 L Ed2 62, 85 S Ct 1178 (1965); Peralta v Heights Medical Center,

Inc., 485 US 80, 99 L Ed2 75, 108 S Ct 896 (1988).

Whatever the outer limits of the Due Process of Law Clause of the

Fourteenth Amendment one central core component that remains abso-

lutely constant is that notice and opportunity to be heard appropriate to

the nature of the case must be provided. The case that is repeatedly cited

by this court dealing with notice and an opportunity to be heard is

Mullane v Central Hanover Bank & Trust, supra, where this court said:

"many controversies have raged about the cryptic and abstract words

of the Due Process Clause but there can be no doubt that at a

minimum they require that deprivation of life, liberty or property by

adjudication be preceded by notice and opportunity for hearing

appropriate to the nature of the case."

The "nature of the case" herein is a Two Billion Dollar lawsuit

brought against the Board of Directors of a public utility for common law

negligence. The critical question of law related to the jurisdiction of the

district court to entertain the lawsuit. If one pauses and thinks about it,

what happened here is truly bizarre. The Supreme Court of Oklahoma,

aware that the critical questions of law going to jurisdiction were

determinative of the case, proceeded to promulgate its opinion by

deciding the questions of law in favor of the respondents and against the

petitioner without extending to petitioner any notice or opportunity to

present his side of the law.

The court was aware that the petitioner, in keeping with the court's

order, had not briefed these issues. At some point, while the court had

the case under consideration, procedural due process oflaw dictated that

petitioner be given notice and an opportunity to be heard on the

jurisdictional issues as set forth inthe brief of the respondents. The failure

of the court to do so cannot be designated as of no consequence. In the

three previous occasions when the identical issues had been presented in

the identical language and briefed by both sides (save for PURPA which

had only been up two times) petitioner had prevailed each time by a

substantial majority vote of the court.

Procedural due process mandated some action by the court modi-

fying its previous order of August 18, 1993, thus authorizing petitioner

to brief the jurisdictional issues. A two line order and a 29¢ stamp would

have bestowed on petitioner due process of law in this case. Neither was

forthcoming. The Supreme Court of Oklahoma clearly had a major lapse

in internal procedure with disastrous consequences to the petitior ~r and

deprived him and 600,000 ratepayers of due process of law. The petition

for writ of certiorari should be granted.

RESPECTFULLY SUBMITTED,

WHIT PATE THOMAS DEE FRASIER*

Box 785 Box 799

Poteau, Oklahoma 74953 Tulsa, Oklahoma 74104

(918) 647-3200 (918) 584-4724

GENE STIPE

Box 1165

McAlester, Oklahoma 74502 *Counsel of Record

(918) 423-0421