Petition for Writ of Certiorari — Beck v. Beck
Supreme Court brief1992
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(1) | Supreme Court, U,,
FILED
vo. BL L124 ose 9 iggy
OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
RONALD DEE BECK,
Petitioner,
vs.
LILLIAN M. BECK,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE
SUPREME COURT OF TEXAS
James M. Morris
Kennedy, Minshew, Campbell
Fry & Morris
320 North Travis, Suite 207
P.O... Box 758
Sherman, TX 75091
(903) 868-0545
QUESTI'.NS PRESENTED
1. Does the 1980 Amendment to
Article XVI, § 15 of the Texas
Constitution, as construed by the Supreme
Court of Texas, deprive Petitioner of his
community property interest in
Respondent’s earnings during the marriage
without due process of law in violation of
the Fifth and Fourteenth Amendments to the
United States Constitution?
a Does the 1980 Amendment to
Article XVI §15 of the Texas Constitution,
as construed by the Texas Supreme Court,
constitute an impairment of Petitioner’s
vested contract rights to the community
property in question in violation of
Article I, §10 of the United States
Constitution?
UJ
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the Supreme Court of Texas
encroach upon the law-making function of
the Texas legislature in violation of
1
Article III, §§ 1 and 2 of the United
States Constitution by applying the 1980
Amendment to Article XVI, §15 of the Texas
Constitution retroactively?
4. Did the Supreme Court of Texas
encroach upon the law-making function of
the Texas legislature in violation of
Article VI, cl. 2 of the United States
Constitution by making the 1980 Amendment
to Article XVI, §15 of the Texas
Constitution retroactive?
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Questions Presented
Table of Contents
Table of Authorities LV
Opinions Below 2
Jurisdiction 2
Constitutional and Statutory
Provisions Involved
Statement of the Case 3
Reasons for Granting the Writ 1]
4 ate Dy eo 7 4
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TABLE OF AUTHORITIES
CASES
NAME PAGE
American Federation of Labor
v. American Sash and Door Co.,
39 U.S. 338, 93 L BG 222,
69 S.Ct. 258 (1949)
American Trucking Assn.
v. Smith, 4935 U.S. , ahd ©. ER.
2d. 148, 110 S.Ct. (1990) .. 31,
Arnold v. Leonard, 273 S.W.799
(Tex. 1925) '
Brinkerhoff-Faris Trust
& Savings Co. v. Hill,
281 U.S. 673, 74 L.Ed.
i077, SO S.Ct. 451 (1930) ..«.. ki,
Burton v. Bell, 380 S.W.2d 560
(Tex. 1964) a ee
City of San Antonio v. San
Antonio Public Service Co.,
aaa U.S. S47, 65 Lb. Ee
444, #2 3B. Ct. 428 (1921)
Cox v. Schweiker, 684 F.2d 310
(Sth Cir. 1982) ee
Estate of Griffin v. Sumner,
604 S.W.2d 221 (Tex. Civ. App.-
San Antonio 1980, writ ref’d
n.r.e.)
Fleming v. Fleming, 264 U.S. 29,
68 L.Ed. 547, 44 S.Ct. 246 (1924)
iv
32
K h-”
24
12
10
29
23
Florida v. Wells, 495 U.S. _.,
109 Za 24 1, 2110 S.Ct.
S005 12000) 6 kc se 6 Se. a oS
Golden v. People ex. rel. Baker,
4614 COLO. 386i, 74 Pi de 7iS, Fie
(Ceie. i937) *
W
>
Gorman v. Gouse, 56 S.W.2d
855 (Tex. Comm’m App. 1933,
judgment aedepted) ..« «ss. « «+ B8
Green v. Ferguson, 62 Tex. 525
[2GUeD © 6 4 we & OS Boe OE eee ee eee
Hilley v. Hilley, 342 S.W.2d 565
[ees S9GES « 6 we 8 wee Se Re Gee ee
Hockley County Seed & Delinting
Co. v. Southwestern Inc., Co., 476
SW2d 38 (Civ. App. - Amarillo
i97i, Writ Fet’ad, n.f<@.- 6t S16
S28 138) oe ee Ee ee ee eee
Home Building & Loan Assn. v.
Blaisdell, 290 U.S. 398, 78 L.Ed.
413, $4 §.Ct. 331-(2934) 2 ss ue & ee
Hopkins v. Bacon, 282 U.S. 121, 75
Lb. BG. 249, $i 8.<Ct 62 (1930) 25-28
Kellet v. Trice, 66 S.W.51
(Tex. 1902) a ee ee ee ee ee ee ee
Lange v. Schulte, 276 S.W.2d 889,
(Tex. Civ. -App.-Amarillo 195
writ ret'da n.€.6s) : = «6 @ Nas eee eee
Lenhard v. Butler, 745 S.W.2d
101 (Tex. App.-Fort Worth L986,
writ.) :
Marbury v. Madison, 1 Cranch 137,
2& Se 60 €36037 §s «ee eee
Matthews v. Quinton, 362 P.2d
932, 938-39 (Alaska 1961) ...... 34
Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 66
L.Ed. 659, 101 §.¢t. 715 #3) ree 39
Missouri v. Hunter, 459 U.S. 359,
74 L.Ed. 535, 103 S.Ct. 673 (1983) . 19
Paluck v. Board of County
Commissioners, 307 N.W.2d 853,
O55 (1.0. 2908) «sk ow Ghee ae eee
Shareholders of the Hagerstown
Bank & Trust Co. v. Sterling,
300 U.S. 175, 81 L.Ed. 586, 57
S.Ct 386 £2937) 6-5-8 2 aes se ee
State v. Humble Oil & Refining
Co., 169 SW2d 707 (20M. 2943) « 2 s 16
Sweezy v. New Hampshire, 354 U.S.
234, L be Bes 2a i3il, af ) BSCE. 1203
(3967): 5. a eee eee eee
Texas Court of Appeals opinion,
Dallas Division, is reported at 792
S.W.2d 813 (Tex. Civ, App.-Dallas
,
1990.) 2
Texas Supreme Court opinion is
reported at 814 S.W.2d 745
(Tex. 1991) .. os 2 ee ee 2
Tidal Oil v. Flanagan, 263 U.S. 444,
68 L.Ed. 382, 44 S.Ct. 197, (1924) 29
vi
Donelly’s Estate,
United States v.
85 L Ed 2d 64,
471i U.S.
07 S.Ct.
United States v.
L,. Ba. 24
Sisson, 399 U.S.
Yoshida
526 F.2d 560
United States v.
International,
Wesslev Energy Corporation v.
736 S.W.2d 624
Jennings,
Williams Williams,
be
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36
CONSTITUTION AND STATUTES
NAME PAGE
ae UeEeGeA. SA987 « sc sk bs - 2
1948 Amendment to Article “Vi,
Section 15 of the Texas
OIG ARUCIOM 8. wk lt te kg 6, 9, 46
1980 Amendment to Article XVI,
Section 15 of the Texas
Constitution .......° 20, 20, 32,
34, 393, 48
Article 1, Section 10, U.S.
COMSTSCUCION . . 1. ss ck tl te PP
Article 3, Section 1, U.S.
OPC ACUCSON 4. ks eke ee 3, 35
Article 6, Clause 2, U.S.
ANMORCERMICROMN 5 5. 4 © bs ay ee ee
Article XVI, Section 15, Texas
Constitution 3
Fifth Amendment to the U.s.
OOOMEAGUEIOM 1 5 ke et wt lw wt tt; ee
zs
Fourteenth Amendment to the ae
Constitution ....s.. 2) bay: Any ue
Section 311.022 of the Government
Code (Vernon’s 1988) ee are ae ae a eS
§5.41 of the Texas Family Code
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Vliil
} sel
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
RONALD DEE BECK,
Petitioner,
vs.
LILLIAN M. BECK,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE
SUPREME COURT OF TEXAS
Petitioner, Ronald Dee Beck, prays
that a writ of certiorari issue to review
the judgment of the Texas Supreme Court
entered May 30, 1991, affirming a partial
Summary judgment rendered against him in
the trial court and affirmed by the Texas
Court of Appeals, Dallas Division, and
that on hearing the partial summary
judgment against him be reversed.
OPINIONS BELOW
The opinion of the Texas Supreme
Court 1s reported at 814 S.W.2d 745 (Tex.
1991).
The opinion of the Texas Court of
Appeals, Dallas Division, is reported at
792 S.W.2d 813 (Tex. Civ. App.-Dallas,
JURISDICTION
The judgment of the Texas Supreme
™)
ourt was entered on May 30, 1991. Timely
motion for rehearing was filed, and was
denied on September 11, 1991. This Court
has jurisdiction under 28 U.S.C.A. §1257.
No
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLV
a
ED
Article 1, Section 10, U.S.
Article 3, Section 1,
Article 3, Section 2, U.S.
Article 6, Clause 2, U.S.
5th Amendment, U.S.
14th Amendment, U.S.
Constitution
. Constitution
Constitution
Constitution
Constitution
Article XVI, Section 15, Texas
,
Constitution
Section 5.41 of the Texas Family Code
STATEMENT OF THE CASE
Petitioner, Ronald Dee Beck,
individually and as Independent Executor
of the Estate of Audrian L Beck,
deceased, brought suit against his
stepmother, Lillian M Beck, Respondent,
for an accounting and to recover one-half
of the earnings and income from
Respondent’s separate property during her
J
marriage to Petitioner’s father, Audrian
L. Beck. In his suit, Petitioner further
sought a judgment declaring paragraph four
of an antenuptial agreement between
respondent and Audrian L. Beck as being
violative of Article XVI, §15 of the Texas
Constitution and §5.41 of the Texas Family
Code, as written at the time of the
execution of the agreement in 1977.
Paragraph four of the antenuptial
agreement provides:
"Notwithstanding that under the
laws of the State of Texas the
income from respective separate
properties of Audrian and
Lillian will be community
property, they hereby agree that
all the properties of every kind
and nature, real and personal,
held or standing in the name of
Only one of them shall _ be
considered as a separate
property of the one of them in
whose name such property is held
or stands, and that only
properties, whether real or
personal, held or standing in
their joint mnames_- shall be
considered community property."
4
+
The trial court granted two separate
partial summary judgments in favor otf
Respondent. The first held that paragraph
four of the prenuptial agreement was valid
and enforceable. The second held that
Petitioner’s claims for an accounting and
recovery of one-half of the earnings and
income from Respondent’s separate property
were barred by the applicable two-year
statute of limitations. The summary
judgment issues were severed and from
those issues Petitioner perfected this
appeal.
The Texas Court of Appeals, Dallas
Division, affirmed the summary judgment of
the trial court declaring paragraph four
of the antenuptial agreement valid and
enforceable. The Texas Supreme Court
granted a writ of error and affirmed the
holding of the Court of Appeals.
In its affirmance, the Texas Supreme
-
Court rejected the basis relied upon by
the Texas Court of Appeals and
acknowledged that the prenuptial agreement
in question was unenforceable under the
1948 Amendment to Article XVI, Section 15
of the Texas Constitution (App. A, infra)
and would be void unless the _ 1980
Constitutional Amendment thereto (App. B,
infra) could be given retroactive effect.
The Texas Supreme Court further
acknowledged that the language of the 1980
Constitutional Amendment was silent on its
face concerning any legislative intent to
rt
validate unenforceable prenuptia
agreements under the 1948 constitutional
amendment and that no invalid law or
contract had ever been validated in Texas
in the absence of express language in a
subsequent statute or constitutional
amendment clearly expressing the
legislature’s intent to that effect. To
circumvent these legal impediments to its
desired objectives in promulgating public
policy, the Texas Supreme Court embarked
upon a radical departure from existing
public policy consistently followed by the
Texas legislature by adopting the doctrine
of "implied validation". Under the
auspices of the authority so created, the
Texas Supreme Court judicially imputed
legislative intent to grant retroactive
effect to the 1980 Constitutional
Amendment.
The Texas Supreme Court based its
determination that the legislature
intended to make the constitutional
amendment retroactive upon the following:
(1) a one sentence comment non-specific on
the topic of validation excerpted from the
testimony of an unidentified witness at a
public hearing before the House Committee
on Constitutional Amendments on February
~)
28, 1979; (2) other non-specific testimony
from unidentified witnesses during a
public hearing and floor debate in the
Texas House of Representatives on April
10, 1979; and (3) the court’s conclusion,
based on no cited evidence or authorities,
that the adoption of the 1980 amendment
was reactionary to the 1978 Williams case,
infra, and the 1980 reversal of a United
States Tax Court decision by a Federal
Court of Appeals.
The reasoning of the Texas Supreme
Court, eclectic as it is, may best be
described as a three-step analysis which
allowed that Court to tailor the law to
the result they desired in this case.
First, the Texas Supreme Court had to
determine whether the agreement between
Lillian and Audrian Beck was void or
voidable. Under fundamental principles of
contract law, void agreements may never be
resuscitated, while voidable contracts can
be ratified by the parties. Thus the
Texas Supreme Court first found the
agreement voidable and subject to
ratification.
Second, after determining that the
agreement was subject to ratification, the
Texas Supreme Court proceeded to validate
the contract. To do so, that Cou
ry
+
adopted the doctrine of implied
validation, allowing retroactive
7} * oer - ~
application ot the 1980 Const1itutionas
>| T ~ ™~ 7 ° -
Amendment. Witnout -he implied validat1o
doctrine, the agreement in question wou-c
/
Court of Texas', prohibited prenuptial
agreements purporting to prospectively
characterize marital property contrary to
the provisions of the Texas Constitution.
Such agreements were "void."
Finally, the Texas Supreme Court
recognized that the resurrected contract
would be short-lived if retroactive
application of the 1980 Amendment violated
vested contract rights held by parties to
the contract. Therefore, by going back to
the first step of the analysis, the Court
held that because~ the contract was not
void but voidable and subject to
ratification, Petitioner’s contract rights
never vested in the first place. By this
circuitous reasoning the Texas Supreme
See, Hilley v Hiliey, 342 S.W.2d
565 (Tex 1961); Burton v Bell, 380
S.W.2d 560 (Tex 1964); and Williams v
Williams, 569 §S
W.2d 867 (Tex. 1978)
Court held that the 1977 agreement was
valid and enforceable against Petitioner,
despite the fact that under Texas law in
hy a such an agreement would have
otherwise been void.
Petitioner seeks review of the
affirmance of summary judgment below, and
outright reversal of such judgment against
him.
REASONS FOR GRANTING THE WRIT
1. It has long been held by this
Court and in American jurisprudence that
a court, through judicial opinion, may
violate due process rights held and
protected under the Fifth and Fourteenth
Amendments to the U.S. Constitution.
b-2
he
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that a state supreme court may, through
judicial opinion and judgment, deprive a
party of due process in the same manner as
a legislative, executive, or
administrative body.
Hill stemmed from a Missouri suit
which sought to enjoin the collection of
taxes on the full value of shares of stock
in a bank. Normally, all classes of
property which had been assessed the tax
were taxed at 75% of their market value.
Plaintiffs paid the taxes based on a full
market value assessment and sued, claiming
the additional 25% assessment was void as
a discrimination prohibited under the
Equal Protection clause to the Fourteenth
Amendment.
In the State of Missouri, there was
an administrative body which would have
heard the plaintiffs’ case but for a
Missouri Supreme Court decision which
12
precluded that body from hearing it.
Because of the Judicial decision,
plaintiffs were forced to file a bill in
equity. The trial court denied the bill.
On appeal the Missouri Supreme Court
overruled the prior case which had forced
the plaintiffs to file in equity in the
first place. The Missouri Supreme Court
held that the State Tax Commission had the
power to hear appeals such as plaintiffs’
and if the evidence batore that board had
been favorable, it would have had the
power to adjust the assessment rate
pursuant_to plaintiffs’ claim. However,
because the time for appeal to that board
had expired, the Missouri Supreme Court
held that Plaintiffs were precluded from
presenting their claim to the Commission
because laches acted as a bar to their
claim.
WwW
b
In their motion for rehearing to the
Missouri Supreme Court, plaintiffs
asserted constitutional claims similar to
those raised in the case at bar. They
argued that the Missouri Supreme Court,
because it had denied plaintiffs the right
to be heard by the State Tax Commission
because of laches, had violated plaintiffs
due process rights under the Fourteenth
Amendment.
The plaintiffs’ motion for rehearing
was denied, and they appealed to the
United States Supreme Court. This Court
held that (1) due process violations may
result from judicial decisions as well as
legislative enactments; and (2) a judicial
body may deprive a party of due process
while construing an otherwise valid state
statute.
14
In the case at bar, the Texas Supreme
Court overruled’ prior case law which
existed at the time the antenuptial
contract was made and which was a part of
the contract and governed the transaction.
Home Building & Loan Assn. v. Blaisdell,
290 U.S. 398, 78 L.Ed. 413, 54 S.Ct. 231
(1934), Wessley Energy Corporation v.
Jennings, 736 S.W.2d 624 (Tex. 1987),
Lange v. Schulte, 276 S.W.2d 889, (Tex.
Ci¥:. App.-Amarillo 1954, writ ref’d
n.r.e.), Estate of Griffin v. Sumner, 604
*While the Texas Supreme Court stated
in its opinion that its decision did not
have any effect on Williams v. Williams,
569 S.W.2d 867 (Tex. 1978), such
statements are express departures from
intellectual honesty. In Williams, the
Texas Supreme Court expressly held that
all antenuptial agreements which attempted
to recharacterize marital property under
the 1948 amendments were void when
written. In Beck, the Texas Supreme Court,
again construing a prenuptial agreement
under the 1948 amendments which served to
recharacterize marital property, held that
such agreements were not void, effectively
overruling Williams.
15
S.W.2d 221 (Tex. Civ. App.-San Antonio
1980, writ ref’d n.r.e.). This the Texas
Supreme Court did in two ways. First,
Texas courts had consistently followed the
express validation doctrine. That is,
that a law will not be applied
retrospectively, even where there is no
constitutional impediment against such
application, unless it appears by fair
implication from the language used therein
that it was the intention of the
legislature to make the law applicable to
both past and future transactions. State
Vv. Humble Oil & Refining Co., 169 SW2da 707
a)
(Tex. 1943); Hockley County Seed
Delinting Co. v. Southwestern i o>
476 SW2d 38 (Civ. App. - Amarillo 1971,
writ ref’d, n.r.e. at 516 SW2a 136). The
express validation doctrine was also
codified by the Texas legislature under
Section 311.022 of the Government Code
ps
OV
(Vernon’s 1988)*. In this case, the Texas
Supreme Court purports to adopt the
doctrine of implied validation as a "new"
doctrine. By calling the doctrine "new",
the Texas Supreme Court implies that it
has no prohibiting precedents in Texas
jurisprudence. That statement is not
intellectually honest. Adoption of the
doctrine of express validation necessaril}
required our appellate courts and the
Texas legislature to determine how much
proof should be required to support a
finding that the legislature intended, or
did not intend, a legislative act to be
applied retroactively. Thus, in Texas,
the quantum of proof had been decided and
the doctrine of implied validation had
"A ~6statute is presumed to. be
prospective in its operation unless
expressly made retrospective" (Emphasis
added).
by the Texas Supreme Court and the Texas
legislature.
Second, at the time the Beck
antenuptial contract was signed in 1977,
it was well settled in Texas’ that
contracts which purported to alter the
Character of separate property contrary to
Article XVI, Section 15 of the Texas
Constitution were "void", not voidable.
According to the circuitous reasoning of
the Texas Supreme Court, the antenuptial
agreement was subject to ratification
based upon the determination that it was
a voidable, and not void, agreement. The
court then based its determination that
Petitioner’s contract rights had not
vested in the first place on its prior
determination that the contract was
volidable.
Both groups of prior case law
overruled by the Texas Supreme Court
discussed above were essential to the
holding of the Texas Supreme Court in this
case to make the 1980 Constitutional
Amendment retroactive. Because the
d
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doctrine of implied validation was ral
by the Texas Supreme Court on its
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=
volition and the Petitioner was denied
fy
ct
rehearing on the issues presented by tha
Court’s decision, Petitioner’s due proces
Y
rights were violated by that judicial
decision.
It should further be noted that this
Court has deployed its review powers to
hear cases where a state court decision
interpreting matters of state law
(D
—/
allegedly violates provisions of the
LO
f
Constitution. Missouri v. Hunter, 45
359, 7a eee eae, tee S.Ct. 673 (1983).
Thus, through adherence to principles of
stare decisis, a ruling by this Court on
the issues presented by this Petition
7
&.
Ve)
would not in itself be an exercise in
judicial activism.
Even if the 1980 Amendment to Article
XVI, Section 15 of the Texas Constitution
was made retroactive in a manner in line
with constitutional standards, it could
not have validated the Beck agreement. The
Texas Supreme Court acknowledged that
prior to adoption of the 1980
constitutional amendment, premarital
agreements and marital property agreements
executed during marriage which attempted
to characterize earnings from a spouse’s
separate property during the marriage as
that spouse’s separate property, were
prohibited under the Texas Constitution.
The 1980 Amendment only partially removed
that prohibition by permitting spouses,
not persons about to marry, to validly
enter into such agreements. Audrian and
Lillian Beck were not married when their
20
aa
7
agreement was signed. Consequently, it was
void under the 1980 Constitutional
Amendment. Audrian Beck owned 1/2 of his
wife’s earnings from her separate property
during their marriage. Lillian Beck had a
like interest in Audrian’s earnings from
his separate property during the marriage.
The judicial interpretation of the 1980
Constitutional Amendment by the Texas
Supreme Court deprived Audrian Beck of
that property without due process of law.
It is evident from the carefully
chosen language used by the legislature in
the 1980 Constitutional Amendment that
agreements between persons about to marry
and agreements between persons who were
already married were recognized,
distinguished and treated differently in
a deliberate manner. For example, the
amendment expressly allowed partition and
exchange agreements between persons about
“a
to marry and spouses, but it expressly
restricted agreements pertaining to the
characterization of earnings from separate
property during the marriage to agreements
between spouses only. That is, the 1980
constitutional amendment did not permit
persons about to marry to prospectively
characterize earnings during the marriage
contrary to the long-standing law which
defined all property acquired as community
property unless acquired by gift, devise
or descent.
2. It is Petitioner’s contention that
the Texas Supreme Court’s decision in this
case resulted in an impairment of vested
contractual rights held by Petitioner and
persons in the same station all over the
State of Texas. In this case two types of
vested rights are constitutionally
protected. First, Audrian Beck had a
vested right in community property. Under
22
= - © ——™
Texas law, that included earnings during
the marriage from Respondent’s separate
property, and vice versa. Second, Audrian
and Lillian Beck each had a vested right
to disaffirm the unenforceable 1977
agreement. By making the agreement between
Audrian and Lillian Beck voidable and
subject to ratification where such a
contract was clearly void, the Texas
Supreme Court deprived Petitioner of
property he would have obtained had the
contract been declared a nullity as
mandated by the law which prevailed at the
time the contract was written and signed.
Constitutional Amendment, pre- and post-
marital property agreements were void.
Notwithstanding this constitutional
prohibition, a sufficient number of such
contracts existed prior to 1948 to merit
the attention of the Texas Supreme Court.’
For a period of some 32 years after
adoption of the 1948 Amendment, the
married citizens of this state had the
right, subject to the restrictions of that
amendment, to enter into marital property
agreements. The limited "legalization" of
marital property agreements in 1948
dramatically increased the use of this
device by the citizens of this state. The
number of pre-1980 marital property
agreements in existence cannot be
estimated with certainty. However, the
decision of the Texas Supreme Court is not
limited to the validation of prenuptial
agreements executed between 1948 and 1980.
It affects every marital property
“See, Arnold v. Leonard, 273 S.W.799
(Tex. 1925); Gorman v. Gouse, 56 S.W.2d
855 (Tex. Comm’m App. 1933, judgment
adopted); Green v. Ferguson, 62 Tex. 525
(1884); Kellet v. Trice, 66 S.W.51 (Tex.
1902).
24
agreement entered into by the citizens of
this state at any time prior to 1980.
Neither is the impact of the Texas Supreme
Court decision in this case limited to
marital property agreements. The doctrine
of implied validation embraces a broad
legal concept applicable to every contract
governed by a constitutional amendment
which is subsequently changed by the
legislature. The impact of the decision by
the Texas Supreme Court in this case is
enormous and merits review by this Court.
In Hopkins v. Bacon, 282 U.S. 121, 75
L. EQ. 249, 51 S.Ct. 62 (1930), this Court
considered Texas community property law
and the rights that law conferred. It
should be noted that while Hookins was
decided prior to the constitutional
amendments of 1948 which prevail over the
agreement in question, there is nothing in
the pertinent case law or legislative
N
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enactments which would suggest, prior to
the Texas Supreme Court’s ruling in this
case, that interests in community property
estates were anything but vested
contractual rights held by parties to a
marriage contract in Texas.
Hopkins involved community property
tax returns filed by a husband and wife
residing in Texas. In their separate
returns, each declared one half of the
community income as their separate income.
The Commissioner of Internal Revenue
asserted that the husband should have to
declare all of the community income on his
return. The crux of the 1ssue was that the
husband would have paid more in taxes if
all the community income had been assigned
to him rather than each spouse claiming a
One half share of the community income.
The taxpayers paid their taxes under
protest and brought suit to recover the
:
excess. The District Court granted the
taxpayers judgment and the Fifth Circuit
affirmed the District Court. This Court
heard the case on a Writ of Certiorari.
The issue, as framed by this Court,
was whether a person has "rights" or
"expectancies" in community property. This
Court held that persons have vested rights
(emphasis added) to community property,
« a 4
stating in part:
Ww 4 1. ~ + }
it remains only to say tnat tne
interest of a wife 1n community
property i1n Texas iS properiy
characterized as a present
+ , ] nd
vested interest, equal and
. 4= m } :
equivalent to that of her
husband, and that one haif of
the ommunity income 1s
+h fry } > —. A+ n
therefore the income of tne
Wife. "
Hopkins, 282 U.S 126-127, (emphasis
added)
The holding of the Texas upreme
Court in this case that Petitioner dia not
have a vested right to one-half of the
earnings of Lillian Beck during the
Marriage is contrary to this Court’s
holding in Hopkins, supra. Ronald Beck,
as the beneficiary of Audrian Beck, stands
in Audrian’s shoes as a party to the
agreement, and has been denied his vested
rights under the contract in question by
the Texas Supreme Court’s decision in this
case.
Even assuming for purposes of
argument that the Texas legislature did in
fact intend for the Constitutional
amendments at issue to be applied
+t Vx } s -~ rtm A
retroactively, such an enactment would
serve as a direct impairment of vested
> } } } racy r ,*—& 3s AWNaY no
contract rights held by Petitioner and
others whose property rights are violated
by an agreement which is void when
+7 ; — , 7 : ~~ =~ es + =}
Written. Legislative enactments wnicn
divest persons of vested rights have long
i . :
been viewed suspiciously by federal
courts. Cox v. Schweiker, 684 F.2d 310
(Sth Cir. 1982) (interpreting provisions
of the Georgia Constitution.) Because the
enactment has been interpreted as
divesting Petitioner and parties like him
of rights protected under the contracts
clause, such legislation merits review by
this Court.
Petitioner is aware of holdings by
this Court which state that a court,
acting independently, may not impair
contract rights which are protected by the
U.S. Constitution. Shareholders of the
Hagerstown Bank & Trust Co. v. Ster
360 U.S. 175,. 61. UL, 2a. S86, 57 .S-00 366
(1937), Tidal Oil v. Flanagan,
tO
444, 68 L.Ed. 382, 44 S.Ct. 197, (1924);
Fleming v. Fleming, 264 U.S. 29, 63 L.Ed.
Texas Supreme Court’s decision below does
29
not, on its face or otherwise, rest on the
independent judgment of that Court but is
rather a somewhat garbled attempt at
Statutory construction. If the Texas
Supreme Court had not attempted in any
way, shape or form, to construe the
constitutional amendments in question, but
had, on its own volition, stated that the
1980 amendments were to be applied
retroactively despite no evidence of
legislative intent to that effect, then
the Sterling rationale would apply. As it
stands, the Texas Supreme Court’s opinion
does not rest on independent grounds but
is, admittedly and on paper, an
interpretation of the will of the Texas
legislature.
In the event that this Court should
find that the Texas Supreme Court acted
independently of the will of the Texas
legislature, Petitioner contends that is
30
’
even more reason for this Court to review
this case because the decision of the
Texas Supreme Court is in effect a
determination of public policy and is
contrary to both the letter and spirit of
a myriad of decisions by this Court
regarding the proper role of the judiciary
in government. This Court has long held
that courts should not act as
manufacturers of public policy but rather
as bodies which interpret already-existing
public mandates. United States v. Sisson,
399 U.S. 267, 26 L.Ed.2d 608, 90 S.Ct.
2117 (1970) (Harlan, J., writing for the
Court); American Trucking Assn. v. Smith,
495 U.S. , 1i90 bk. EG. 2d. 148, 110
$.ct. (1990) (Scalia, J., concurring).
3. The Texas Supreme Court’s decision
in Beck is in direct contravention to a
long body of decisions from this Court
which expressly hold that constitutional
31
amendments are not to be applied
retroactively. American Federation of
Labor v. American Sash and Door Co., 335
U.S. 538, 93 L EA 222, 69 S.Ct. 268
(1949). In its holding in Beck, the Texas
Supreme Court applied the 1980 Amendment
to the Texas Constitution in a retroactive
manner even though there is no evidence
whatsoever to suggest that retroactive
application was intended by the Texas
legislature. Further, common sense would
dictate that if there had been even the
Slightest hint of possible retroactive
application of the 1980 Amendment, there
would have been a great deal of
controversy and debate over the matter
because of the potential effects that such
an interpretation would have over pre-
existing marital property rights in the
State. Neither Petitioner, nor obviously,
the Texas Supreme Court, have been able to
32
locate any record of any such debates.
The Texas Supreme Court decision in
this case is also in direct contravention
with holdings of this Court which state
that in matters of interpretation,
Constitutional amendments are to be
applied prospectively. City of San
Antonio v. San Antonio Public Service Co.,
gone wees eet, Ge um Ga 7/77, 41 S.Ct. 428
)
CG
ea)
(1921); U.S. v. Donelly’s Estate, 387
256, 90 0 ee ee oie, 90 S.Ct. 1033 (1970).
4
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enunciated by this Court has long been to
the effect that if a constitutional
amendment or statute is to be applied
retroactively, there must be found an
express intent on the part of the
legislature for such effect. Again, there
is no language in either the amendments or
their history which would indicate that
the Texas state legislature intended for
cP
the 1980 Amendment to be retroactive.
The doctrine of implied validation
represents an issue of first impression
before this Court. Prior to the Texas
Supreme Court judgment in this case, there
were few jurisdictions which had
Considered the issue. Golden V. People ex.
rel. Baker, 101 Colo. 381, 74 P.2a Faas
716 (Colo. 1937); Paluck vy. Board of
County Commissioners, 307 N.W.2d 853, 855
(N.D. 1981); Matthews v. Quinton, 362 P.2q
932, 938-39 (Alaska 1961). Because of the
sensitive constitutional lssues of the
doctrine, both in the areas of impairment
Of contract as well as due process,
Petitioner prays this Court to address
implied validation directly.
4. The Texas Supreme Court’s adoption
of implied validation @S a means of
Statutory interpretation presents
fu
Kt
ey)
ct
(D
J
ct
Violation of the Separation of powers
3
is
doctrine expounded upon and described by
this Court since Marbury v. Madison, 1
Cranch 137, 2 L Ed 60 (1803). Simply
Stated, implied validation allows a court
to read its own intentions into
legislation which may Or may not have been
promulgated for the use the court may see
for 5 The doctrine of implied
validation, as a means to impute
retroactive effect to legislation which
contains neither on its face nor in its
history any reference to an intent by the
legislature to make it retroactive, is in
direct contravention to what this Court
has construed to be the "Judicial power"
Of Article {fII, $1, ¢l 1 6f the United
States Constitution. American Trucking
Association v. Smith, 495 U.S. 4 Aad £
Ed 2d 148 110 S.ct. _.. (1990), (Scalia,
J., concurring), Florida v. Wells, 495
U.S. » 109 L Ed 2a 1, 110 S.ct. 1632
(1990) (Stevens, J., concurring.)
This Court has long related to the
judiciary of this nation the importance of
maintaining an interpretive, rather than
legislative, role in statutory
construction, even where the judicial
interpretation leads to a less’ harsh
result. United States v. Locke, 471 U.S.
84, 85 L Ed 2d 64, 107 S.Ct. 1785 (1985)
(J. Marsnall, writing for the Court.) Much
of the impetus behind the notion that a
court is an interpreter, rather than
creator, of statutory meaning lay in the
admission that judicial forays into the
legislative arena are inherently dangerous
and can lead to disastrous results. In
United States v. Sisson, 399 U.S. 267, 26
L Ed 2d 608, 90 S.Ct. 2117 (1970), the
second Justice Harlan, writing for the
court, noted:
"Were we to throw overboard the
36
ballast provided by the
statute’s language and
legislative history, we would
cast ourselves adrift, blind to
the risks of collision with
other policies that are the
buoys marking the safely
navigable zone of our
7uri.eaqiction.”™
ge3 Uls. at 299.
Through the doctrine of implied
validation, the Texas Supreme court
granted retroactive effect to the 1980
Amendments to the Texas Constitution.
oe
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t -)
ct
ey
(4)
ry
Quite frankly, there is nothing ir
the language of the amendments or the
history surrounding thelr passage, to
indicate that the Texas legislature
intended for the amendments to affect pre-
1980 prenuptial agreements. Interestingly
enough, the Texas Supreme Court opinion
WJ
~
contains what that Court purports to be
language which would suggest that the
legislature intended for the amendments to
be retroactive; however, Petitioner has
not been able to (1) verify the statement
in the legislative record; (2) determine
the identity of the person who made the
statement; and (3) discover the context in
which it was made.
Further, Texas and Federal Law has
long admonished courts to not supply terms
and conditions to statutes in the guise of
interpretation. United States v. Yoshida
International, 526 F.2d 560 (i375),
Lenhard v. Butler, 745 S.W.2d 101 (Tex.
App.-Fort Worth 1988, no writ.) In its
decision, the Texas Supreme Court added
the condition of retroactivity to the 1980
Amendments; such a condition does not
exist either on the face of the amendments
nor in the legislative history.
38
Petitioner is aware of Constitutional
doctrine which precludes this Court from
considering questions of Separation of
Powers vis-a-vis state government. Sweezy
v. New Hampshire, 354 U.S. 234, 1 L.Ed. 2d
1333. 77 BS. 0e4-420)" (arerrs Minnesota Vv.
Clover Leaf Creamery Co., 449 U.S. 456, 66
L. Ed. 659, 101 a Se tio (1981).
Petitioner is also aware of the basis for
the doctrine but nonetheless asks this
Court to revisit these decisions on the
grounds that a violation of Separation of
ee , - a ot ng ; ss
rOWCLS is = yj ae BSS a violation OL
process, equal protection, or anti-trust
law would merit review by this Court.
Because the Petitioner has exhausted all
state remedies and this issue remains
Cc
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ct
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ry
4
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a
(D
unsolved, this Court sho
whether the Texas Supreme Court did in
a9
fact encroach upon the powers of the Texas
legislature to the extent that the
Petitioner’s constitutional rights were
violated.
CONCLUSION
The petition for a Writ of Certiorari
should be granted and the judgment of the
Texas Supreme Court should be reversed.
Respectfully submitted,
KENNEDY, MINSHEW, CAMPBELL
FRY & MORRIS
320 North Travis, Suite 207
P.O. 86x 756
Sherman, TX 75091
(903) 868-0545 - TELEPHONE
(903) 868-0548 - FAX
By:
: AMES M. MORRIS
State Bar #14487500
Attorney for Petitioner
CERTIFICATE OF SERVICE
I do hereby certify that a true and
correct copy of the foregoing document has
been sent via certified mail, return
“es requested to Ms. tacy Johnson,
Box 340, Sher , £k ~75S091 on This
oe 7 day of : or rit ’
L331.
Y /
Cb rs jy yy
JAMES M. MORRIS
Appendix A
1948 Amendment to Article XVI, § 15
of the Texas Constitution
"Section 15. All Property, both real
and personal, of the wife, owned or
Claimed by her before Marriage, and
that acquired afterward by gift,
devise, or descent, shall be the
separate property of the wife; and
laws shall be passed more Clearly
defining the rights of the Wife, in
relation as well as to her separate
Property as that held in common with
her husband; provided that husband
and wife, without prejudice to pre-
existing creditors, may from time to
wife were feme sole, partition
between themselves in severalty or
Ee
Appendix B
1980 Amendment to Article XVI, §15 of the
Texas Constitution
"All property, both real and
personal, of a spouse owned or
Claimed before marriage, and that
acquired afterward by gift, devise,
cr descent, shall be the separate
property of that spouse; and laws
shall be passed more clearly defining
the rights of the spouses, in
relation to separate and community
property; provided that persons about
to marry and spous@s, without the
intention to defraud pre-existing
creditors, may by written instruments
from time to time partition between
themselves all or part of their
property, then existing or to be
acquired, or exchange between
themselves the community interests of
one spouse or future spouse in any
property for the community interest
of the other spouse or future spouse
in other community property then
existing or to be acquired, whereupon
the portion or interest set aside to
each spouse shall be and constitute
a part of the separate property and
estate of such spouse or future
spouse; and the spouses may from time
to time, by written instrument, agree
between themselves that the income or
property from all or part of the
separate property then owned by one
a
of them, or which thereafter might be
acquired, shall be the separate
property of that spouse; and if one
Spouse makes a gift of property to
the other, that gift is presumed to
include all the income or property
which might arise from that gift of
property." (Emphasis added).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.