Petition for Writ of Certiorari — Beck v. Beck

Supreme Court brief1992

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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?

OQ.

the Supreme Court of Texas

encroach upon the law-making function of

the Texas legislature in violation of

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?

) )

dhe ahh

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]

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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)

K h-”

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) *

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

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,

WwW W

W W

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

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

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.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLV

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

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

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."

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

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

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

fe)

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

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

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.

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.

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

(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

(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

f))

doctrine of implied validation was ral

by the Texas Supreme Court on its

volition and the Petitioner was denied

rehearing on the issues presented by tha

Court’s decision, Petitioner’s due proces

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

—/

allegedly violates provisions of the

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

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

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

= - © ——™

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).

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

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,

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

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

’

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

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

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

)

ea)

(1921); U.S. v. Donelly’s Estate, 387

256, 90 0 ee ee oie, 90 S.Ct. 1033 (1970).

r-7

bese

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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

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

ey)

Violation of the Separation of powers

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

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.

t -)

(4)

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

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.

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

QO,

OQ.

b 7)

unsolved, this Court sho

whether the Texas Supreme Court did in

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

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

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.