Petition for Writ of Certiorari — City of Ponca City v. Housing Authority of Kaw Tribe of Indians

St» 1486

No. —')

In The i Supreme Court, US

Supreme Court of the United S Sif: ED

October Term, 1991 :

. MAR 13 192

OFFICE OF THE CLERK

CiTY OF PONCA CITY, a —

Municipal Corporation,

Petitioner,

Vv.

HOUSING AUTHORITY OF THE KAW

TRIBE OF INDIANS OF OKLAHOMA,

Respondent.

¢

Petition For A Writ of Certiorari To The

United States Court of Appeals for the Tenth Circuit

o

PETITION FOR WRIT OF CERTIORARI

*

ANDREW W. LESTER

Counsel of Record

KORNFELD, LESTER, FRANKLIN,

RENEGAR & BRYANT

Robinson Renaissance

119 N. Robinson, Suite 820

Oklahoma City, OK 73102

(405) 232-8436

LAURA HOLMGREN-GANZ

Attorney for Petitioner

KORNFELD, LESTER, FRANKLIN,

RENEGAR & BRYANT

Robinson Renaissance

119 N. Robinson, Suite 820

Oklahoma City, OK 73102

(40S) 232-8436

|

QUESTIONS PRESENTED FOR REVIEW:

1. Whether an Indian housing authority, which is

created by state law and is an agency of a state, is a

"person", and therefore an “aggrieved person”, as defined

under Section 802 of the Fair Housing Act (42 U.S.C.

§3602), who may institute suit against a different politica!

Subdivision of the same state under Section 813 of the

Fair Housing Act (42 U.S.C. §3613).

2. Whether a federal court must give to a state

court judgment the same preclusive effect as would be

given that judgment under the law of the State in which

the judgment was rendered where (a) the issues raised in

the subsequent federal court litigation could have been,

but were not, raised by the federal court plaintiff in the

previous state court litigation involving the identical

Parties, and (b) where the federal court defendant was the

plaintiff and the federal court plaintiff was the defendant

in the previous state court litigation.

3. Whether a defendant which had successfully

Sought a motion to dismiss pursuant to Fed. R. Civ. P. 12

ii

(b)(6) must file a cross-appeal in order to assert as a basis

for supporting the order dismissing the case a basis which

the district court had rejected.

eee

TABLE OF CONTENTS

Questions Presented for Review..............

Ee

Constitutional Provisions and Statutes Involved...

Statement of the Case....................

|. Allowing a governmental

entity such as Kaw Housing

Authority to proceed under the

Fair Housing Act amounts to an

improper judicial expansion of

the statutory scheme of the

Fair Housing Act....................

ll. Failure to accord full faith

and credit to a prior state court

judicial proceeding is a serious

departure from accepted and

usual course of judicial

proceedings and conflicts with

the decisions of other federal

courts of appeal and this Court..........

10

23

a ___

iv

Wl. Requiring a successful

litigant to file a cross-appeal

from a judgment dismissing all

claims is in conflict with

applicable decisions of this

Court and is such a departure

from the accepted and usual

course of judicial proceedings

as to Call for an exercise of this

Court’s power of supervision............ 37

I «kk Sc Cea ae EARS ee ek hee ae wa 41

v

TABLE OF AUTHORITIES

Page

Cases:

Aetna Insurance Co. v. Ralls,

200 Okla. 32, 190 P.2d 787 (1948) .......... 31

Allen v. McCurry,

tee i ee 24

Banks v. City of Ardmore,

188 Okla. 611, 112 P.2d 372 (1941) ......... 31

Blum v. Bacon,

SOF U.S. 132 (1GRD) gn ik he is os ih oc oc hee 39

Board of Governors of the Federal Reserve

System v. Dimension Financial Corp.,

S74 U.S. BB (1G) ww cc ccc cece. 15

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) ......... ccc ccc cee 38

Citizens State Bank of Hugo v. Hall,

413 P.2d 513 (Okla. 1966) ................ 31

Dandridge v. Williams,

SAS Se ve: 38

Davis v. Passman,

442 U.S. 228 (1979) ............. 11,14,17,21

Flint Ridge Development Company v. Scenic Rivers

Association of Oklahoma,

GSS U.S. FIG CUBIS) nk hi hice cc ek 16

SSEPODS'~é€S<S<Se =“

vi

Garcia v. San Antonio Metropolitan Transit Authority,

S69 U.S. G28 (1GBG) onc cece wncnn. 18,34

Gladstone, Realtors v. Village of Bellwood,

441 U.S. 91 (1979) ........... 10,11,17,20,21

Green v. Bock Laundry Mach. Co.,

490 U.S. 504 (1989) .................... 18

Haring v. Prosise,

462 U.S. 306 (1983) .................... 24

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1962) 0... wey 17,20

Huffman v. Western Nuclear, Inc.,

486 U.S. 663, 672 (1988) ................ 15

Jett v. Dallas Independent School Dist.,

491 U.S. 701, 735 (19 ................ 16,79

Karahlios v. National Federation of Federal Employees,

489 U.S. 527 (1989) ..................... 15

Kelley v. Kelley,

447 P.2d 774 (Okla. 1968) ................ 31

Kremer v. Chemical Construction Corp.,

456 U.S. 461 (1982) ...... 24,25,26,27,30,33,35

Marrese v. American Academy of Orthopaedic Surgeons,

470 U.S. 373 (99BB) ww cc ccc eke 24,25,26

Massachusetts Mutual Life Ins. Co. v. Ludwig,

426 U.S. 479 (1976) 2c. ccc wc cckn, 38

Middlesex Cty. Sewerage Authority v. National

Sea Clammers Ass‘n,

SOn UR. F UGE 6s os escacn ee ee 15

Vii

Migra v. Warren City School Dist. Bd. of Educ..,

ee SR CUE en os se ee OO Cee ee 24

Mobil Oil Corp. v. Higginbotham,

SOO UB. CIB (178) ww wc ccc nn 15

Montana v. United States,

te th 27,40

Morse v. Earnest, Inc.,

547 P.2d 955 (Okla. 1976) ................ 31

National R.R. Passenger Corp. v. National

Ass'n of R.R. Passengers,

a nn SO I soe eck. wax Scr es 19

Northcross v. Board of Educ. of the

Memphis City Schools,

eR ee) er 22

Oscar Mayer & Co. v. Evans,

MOT UB. FOO (IBF occ ccc cw ccceny 21

Parsons Steel, Inc. v. First Alabama Bank,

474 U.S. $18 (1986) .. ww ccc ccc 24,26

Puerto Rico Dep’t of Consumer Affairs v. Isla

Petroleum Corp.,

485 U.S. 495 (1988) ................. 16,17

Ray v. Atlantic Richfield Co.,

el | a a 17

Sanford’s Estate v. Commissioner of Internal Revenue,

ee ae I a ee oe ics ere eee 16

Scroggins v. Kansas,

802 F.2d 1289 (10th Cir. 1986) ............ 28

viii

Thigpen v. Roberts,

A EP RUUD ov bese edi eebeuweca 39

TVA v. Hill,

437 U.S. 153, 194 (1978) ................ 19

Washington v. Confederated Bands and Tribes of

the Yakima Indian Nation,

439 U.S. 463 (1979) ...................., 38

Statutes:

ee | 3

OP es BOOS koa oe ba i eA ee es 5

Ps BE oe es PS Be ee ees 5

Po oe ee ere 3, 23, 24, 25, 26, 28

a SOE: hss -¢ 5 aR i Oe ee ees 3

ee ee 22

ee ee ro heel OL oe 5,7,8

on ee 2 Oe nS eee ee es 5,7,8

ee OE ask ss de oe eee 5,7,8

R2 USL. S200G0 2c. ccs 4,12,13,18,21,22

42 U.S.C. $§ 3601 etseq.............. 5,12,21

i 3,4,11,12,13,17,22

ee eh a ka Oe EKA Gs 11,20

42 U.S.C. $3613 ......... 4,5,7,11,12,16,19,20

ix

Okla. Stat. tit. 12, Ch. 2, App............. 29,32

Okla. Stat. tit. 63, §§ 1051 etseq.......... 5,34

Miscellaneous:

Peg. Wi. Gav. Fs TRUE) ook oe ke cece beens 2,7

ree. Ti. Gow. P. ATU ww wc ec ccc weccke, 38

Rule 13, Rules of the Supreme Court ........... 1

H. R. Rep. No. 711, 100th Cong. 2nd Sess.,

reprinted in 19GB 6. wk cee 17, 20

O. Hoimes, The Theory of Legal Interpretation,

re ee ly 15,16

Wright, Miller and Cooper, Federa/ Practice

and Procedure §4471 (Supp. 1991) .._...... 28,35

‘ts

In The

Supreme Court of the United States

October Term, 1991

¢

CITY OF PONCA CITY, a

Municipal Corporation,

Petitioner,

Vv.

HOUSING AUTHORITY OF THE KAW

TRIBE OF INDIANS OF OKLAHOMA,

Respondent.

@

Petition For A Writ of Certiorari To The

United States Court of Appeals for the Tenth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

Petitioner, The City of Ponca City, respectfully

prays that a Writ of Certiorari be issued to review the

judgment of the Court of Appeals for the Tenth Circuit,

entered in this proceeding on December 19, 1991, as

authorized by Rule 13 of the Rules of the Supreme Court

of the United States.

2

OPINIONS BELOW

On December 19, 1991, the United States Court of

Appeals for the Tenth Circuit rendered its opinion on the

appeal from the United States District Court for the

Western District of Oklahoma, affirming in part and

reversing in part the judgment of the district court. The

December 19 opinion, which is to be reported as Housing

Authority of the Kaw Tribe of Indians of Oklahoma v. City

of Ponca City, 952 F.2d 1183 (10th Cir. 1991), is

included in petitioner's appendix at page 1. On

September 22, 1989, the United States District Court for

the Western District of Oklahoma granted petitioner’s

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

That judgment is included in petitioner's appendix at page

56. The transcript of the September 22, 1989, hearing is

included in petitioner’s appendix at page 62. On March 9,

1990, the United States District Court for the Western

District of Oklahoma denied respondent's (plaintiff's)

motion to reconsider dismissal of its complaint. That

3

order is included in petitioner's appendix at page 59. The

complaint is in petitioner's appendix at page 44.

JURISDICTION

Oo ———

On December 19, 1991, the United States Court of

Appeals for the Tenth Circuit entered the judgment sought

to be reviewed. The statutory provisions believed to

confer on this Court’s jurisdiction to review the judgment

in question are 28 U.S.C. §§ 1254(1) and 2101(c). This

petition for certiorari is filed within 90 days after the entry

of judgment by the Tenth Circuit.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

NY

28 U.S.C. §1738

State and Territorial statutes and judicial

proceedings; full faith and credit

Such * * * judicial proceedings * * * shall

have the same full faith and credit in every

court within the United States and its

Territories and Possessions as they have by

law or usage in the courts of such State,

Territory or Possession from which they are

taken.

oe '

42 U.S.C. §3602(d)

"Person" includes one or more individuals,

corporations, partnerships, associations,

labor organizations, legal representatives,

mutual companies, joint-stock companies,

trusts, unincorporated organizations,

trustees, trustees in Cases under title 11 of

the United States Code, receivers and

fiduciaries.

42 U.S.C. 3602(i)

“Aggrieved person" includes any person

who-

(1) claims to have been injured by a

discriminatory housing practice; or

(2) believes that such person will be injured

by a discriminatory housing practice that is

about to occur.

42 U.S.C. §3613(a)(1)(A) Enforcement by private

persons

(a) Civil action.

(1)(A) An aggrieved person may

commence a civil action in an appropriate

United States district court or State court

not later than 2 years after the occurrence or

the termination of an alleged discriminatory

housing practice, or the breach of a

conciliation agreement entered into under

this title, whichever occurs last, to obtain

appropriate relief with respect to such

discriminatory housing practice or breach.

42 U.S.C. §2000e(a). Definitions

5S CE (Cl

5

For the purposes of this title -

(a) The term "person" includes one or more

individuals, governments, governmental

agencies, political subdivisions, labor unions,

partnerships, associations, corporations,

legal representatives, mutual companies,

joint-stock companies, trusts, unincorporated

organizations, trustees, trustees in cases

under Title 11, United States Code or

receivers.

STATEMENT OF THE CASE

Respondent, Housing Authority of the Kaw Tribe of

Oklahoma ("Kaw Housing Authority"), is an Oklahoma

State agency organized under the provisions of Okla. Stat.

tit. 63, §§ 1051 et seg. in its complaint (see appendix at

page 44) filed in the United States District Court for the

Western District of Oklahoma on April 21, 1989, Kaw

Housing Authority sought relief from the City of Ponca

City, an Oklahoma municipal corporation, under 42 U.S.C.

§§ 1981, 1982 and 1983, and under the Fair Housing

Act, 42 U.S.C. §§ 3601 er seq. Jurisdiction was invoked

pursuant to 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. §

6

3613 (see appendix at page 45, 4 4).

The basis of the complaint is that Ponca City

allegedly discriminated against Kaw Housing Authority for

racial reasons by refusing to approve an agreement to

allow Kaw Housing Authority to purchase homes within

the corporate limits of Ponca City. Although Ponca City

did not itself own the homes, the State of Oklahoma

requires Kaw Housing Authority to seek Ponca City’s

permission before operating within the boundaries of the

municipality. The city council of Ponca City voted to

approve the agreement. The mayor vetoed the resolution,

however, and the council upheld the veto. (See appendix

at pages 46-49).

The complaint in this case alleges that shortly after

Ponca City declined to approve the agreement, according

to the complaint, Ponca City filed a lawsuit in State court

against Kaw Housing Authority, seeking an injunction

barring Kaw Housing Authority from purchasing or owning

homes within the corporate limits of Ponca City without

first having the city’s permission. The complaint then

7

alleges that the state court judge issued the requested

permanent injunction.’ (See appendix at Pages 48-49).

Ponca City, the petitioner, responded to the

complaint in this case by filing a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6), asserting that Kaw

Housing Authority, as a political subdivision of the State

of Oklahoma, has no federal constitutional rights which it

can enforce against another political subdivision of

Oklahoma under the Civil Rights Acts of 1866 and 1871,

and, therefore, is an improper party plaintiff under

Sections 1981, 1982 and 1983. The motion also sought

dismissal because Kaw Housing Authority does not qualify

as an “aggrieved person” who can maintain an action

‘ According to documents submitted to the federal

trial court in this case by both parties in response to

petitioner’s Rule 12(b)(6) motion to dismiss, Kaw

Housing Authority had responded to the state court

lawsuit by filing a combined motion for summary

judgment and motion to dismiss. At the hearing on

the motions, the state court judge granted summary

judgment against Kaw Housing Authority, and thereby

entered the requested permanent injunction. Several

weeks later, Kaw Housing Authority instituted this

action.

ee

8

against Ponca City under Section 3613 of the Fair

Housing Act. Finally, the motion to dismiss asserted that

Kaw Housing Authority was barred by the doctrine of res

judicata from asserting these claims.

The trial court denied the motion to dismiss based

upon the doctrine of res judicata. But the trial court

granted the motion to dismiss based upon the first two

Propositions. The trial court also denied Kaw Housing

Authority’s subsequently filed motion for a new trial. (See

appendix at page 56).

After granting Ponca City’s motion to dismiss, the

trial court denied Kaw Housing Authority’s timely filed

motion for reconsideration. Kaw Housing Authority

Subsequently filed its notice of appeal to the United States

Court of Appeals for the Tenth Circuit. The City of Ponca

City filed no cross-appeal. On December 19, 1991, the

Tenth Circuit affirmed the trial court’s decision dismissing

the claims under Sections 1981, 1982 and 1983, but

reversed the trial court’s decision dismissing the claim

under the Fair Housing Act. The Tenth Circuit also held

9

that the doctrine of res judicata does not apply in this

case, either because there was insufficient evidence that

Kaw Housing Authority had a full and fair Opportunity to

litigate its claims in the previous state court litigation, or

because the City of Ponca City had not filed a cross-

appeal of the district court’s ruling granting its motion to

dismiss.

ARGUMENTS

ee

SYNOPSIS

The decision below, if left unreviewed, will

drastically alter concepts of federalism, comity and

separation of powers. Additionally, it will work a

Significant revision of the rules of litigation.

The impact on the federai System is two-fold: 1.

The opinion withdraws from states the right to regulate

the relative powers of their political subdivisions; and 2.

The opinion withdraws from state court judgments the

finality which is the keystone of the federal judicial

System. Worse, the appeliate court accomplishes this by

——— |

10

ignoring the dictates of this Court -- it substitutes its

notions of claims preclusion for those of the Federal Full

Faith and Credit Act and state law.

The court of appeals’ opinion also amounts to a

judicial endorsement of the practice of altering the

statutory scheme adopted by Congress, and substituting

for the legislation the result that the court prefers.

Furthermore, the Tenth Circuit order alters the rules of

litigation, by requiring a defendant, who was absolutely

successful in obtaining complete dismissal of all counts,

to appeal that decision in order to preserve alternative

bases for supporting the dismissal order. This petition

demonstrates the reasons that the Court should grant

certiorari to review the order of the court below.

POINT I:

Allowing a governmental entity such as Kaw

Housing Authority to proceed under the Fair Housing Act

amounts to an improper judicial expansion of the statutory

scheme of the Fair Housing Act.

In Gladstone, Realtors v. Village of Bellwood, 441

CC

11

U.S. 91 (1979), this Court invited a petitioner for

certiorari to properly raise the question whether a

governmental entity is a "person” or a "private person"

under the Fair Housing Act. The Court specifically stated

in Gladstone that that question was "not properly before

uS, and we express no views on it." 441 U.S. at 109 n.

21. Gladstone concerned Standing under the Fair Housing

Act. This case concerns the question whether the

plaintiff, Kaw Housing Authority, "is a member of the

class of litigants that may, as a matter of law,

appropriately invoke the power of the court...." Davis v.

Passman, 442 U.S. 228, 239 n. 18 (1979). In contrast

to Gladstone, this case properly raises those issues as a

matter of law, and presents the reasons that 3

governmental agency, such as Kaw Housing Authority, is

neither a "person", nor a "private person", nor even an

“aggrieved person”.

Because the compiaint specifically states that it is

an attempt to maintain an action under 42 U.S.C. §§

3602, 3604 and 3613, Kaw Housing Authority must be

a ee

7

12

one of the class of persons who is entitled to maintain a

civil action under those statutes. See appendix at page

44. Section 3613 allows a private person to maintain a

civil action if that person is an “aggrieved person".

According to Section 3602, the definitions section of the

Fair Housing Act, an "aggrieved person" is any "person"

who claims to have been injured by an impending

discriminatory housing practice or believes he will be

injured by such a practice. According to Section 3602(d):

"Person" includes one or more

individuals, corporations,

partnerships, associations,

labor organizations, legal

representatives, mutual

company, joint-stock

companies, trusts,

unincorporated organizations,

trustees, trustees in cases

under Title 11 of the United

States Code, receivers, and

fiduciaries.

It is instructive to compare this definition, enacted as

section 802(d) of the Civil Rights Act of 1968, with Title

Vil of the Civil Rights Act of 1964. Under the 1964 Act:

The term ‘person’ includes one

13

Or more individual,

governments, governmental

agencies, political subdivisions,

labor unions, partnerships,

associations, corporations, legal

representatives, mutual

companies, joint-stock

companies, trusts,

unincorporated organizations,

trustees, trustees in cases

under Title 11 or receivers.

42 U.S.C. §2000e(a) (emphasis added). As the

comparison makes plain, Sections 2000e(a) and 3602(d)

are virtually identical, with the exception that the Fair

Housing Act omits the words, “governments,

governmental agencies, political Subdivisions,” from its

definition of the term "person".

instead of focusing on whether Congress authorized

@ state agency to bring a Fair Housing Act claim in this

case, the court below simply looked to determine why

Congress might not have authorized such a claim. This

puts the cart before the horse. Either Congress did, or it

did not, empower Kaw Housing Authority to sue Ponca

City under the Fair Housing Act.

14

Furthermore, the Tenth Circuit misconstrued the

issue before it as if it were a question of standing.

Indeed, "[t]he Court of Appeals appeared to confuse the

question of whether [respondent] had standing with the

question of whether [it] had asserted a proper cause of

action." Davis v. Passman, 442 U.S. at 239 n.18. The

point was not whether such and such a person had

Standing to sue. Instead, the question was whether a

certain type of entity is a "person” at all. The issue is one

of cause of action, not standing. 442 U.S. at 239 n. 18.

The court below betrays the basis of its Opinion in

the conclusion to its footnote 16 when it Says that "we

are satisfied that Congress intended the result we reach

here.” Yet, the question is not what Congress intended,

but what Congress did. And, according to virtually every

traditional rule of statutory construction, Congress did not

include Kaw Housing Authority as a "person" under the

Act.

What the Tenth Circuit has done is to apply its own

concept of the broad purposes that it believes Congress

j

15

should have had in mind in adopting the Fair Housing Act,

as Opposed to looking at precisely what Congress actually

enacted. This method of reasoning is improper. Cf. Board

of Governors of the Federai Reserve System v. Dimension

Financial Corp., 474 U.S. 361, 373-374 (1986); Huffman

v. Western Nuclear, inc., 486 U.S. 663, 672 (1988). As

the Court has stated, it is inappropriate for the judiciary to

prescribe a different class of beneficiaries of a Statutory

scheme than Congress has specifically enacted. Mobil Oil

Corp. v. Higginbotham, 436 U.S. 618, 625-626 (1978).

See also Karahlios v. National Federation of Federal

Employees, 489 U.S. 527, 532-533 (1989); Middlesex

Cty. Sewerage Authority v. National Sea Clammers Ass‘n,

453 U.S. 1, 15 (1981). "[Wle have no authority to

Substitute our views for those expressed by Congress in

a duly enacted statute." Mobil Oi/ Corp. v. Higginbotham,

436 U.S. at 626.

Almost one hundred years ago, one of the greatest

legal minds in American history wrote, "We do not inquire

what the legislature meant; we ask only what the statute

16

means." QO. Holmes, The Theory of Legal Interpretation,

12 Harv. L. Rev. 417, 419 (1899). Here, by contrast, the

Court of Appeals simply determined what it thinks the

proper outcome should be, and substituted that for what

Congress actually enacted. Congress stated that

particular “persons” have power to enforce the provisions

of the Fair Housing Act. It is those persons, and only

those persons, who may bring lawsuits under Section

3613.

Under the time-honored doctrines of 1. expressio

unius est exclusio alterius, cf. Jett v. Dallas Independent

Schoo/ Dist., 491 U.S. 701, 735 (1989), 2. the

construction together of statutes governing the same

subject matter, cf. Flint Ridge Development Company v.

Scenic Rivers Association of Oklahoma, 426 U.S. 776,

787-788 (1976); Sanford’s Estate v. Commissioner of

Internal Revenue, 308 U.S. 39 (1939), and 3. even the

basic assumption that states have authority to regulate

their own territory and that a clear statement is required

before a judge will find federal preemption of state law,

17

see, e.g., Puerto Rico Dep’t of Consumer Affairs v. Isla

Petroleum Corp., 485 U.S. 495, 500 (1988): Ray v.

Atlantic Richfield Co., 435 U.S. 151, 157 (1978) - under

all of these doctrines, only one result is appropriate. The

Fair Housing Act did not empower one political subdivision

of a state to sue a sister political subdivision.

Interestingly, this is not a case where the legislative

history, or even the administrative interpretation is

particularly enlightening. Reading, for example, that the

use of the term, "aggrieved person", in Section 3602 is

meant “to reaffirm the broad holdings of [Be//wood and

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982),]"

- elucidates the issue of standing, cf. Davis v. Passman,

442 U.S. at 239 n. 18 (Bellwood concerned Standing, not

cause of action), but does not elucidate who is included

within the scope of the term, ‘person’. See H. R. Rep.

No. 711, 100th Cong., 2nd Sess., reprinted in 1988 U.S.

Code Cong. & Admin. News 2173, 2184. That issue,

until today, has not been before the Court, and was not

in those two cases.

18

Likewise, this is not a case where the plain text of

the statute results in an absurdity. Cf. Green v. Bock

Laundry Mach. Co., 490 U.S. 504, 510-511 (1989). To

the contrary, the plain language makes sense. This

lawsuit really concerns the relative powers of sister

political subdivisions of the same state. That is an issue

traditionally relegated to state law. Cf. Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528

(1985). The Tenth Circuit’s interpretation of the Fair

Housing Act, however, results in a serious breach of

notions of federalism, by allowing sister political

subdivisions of the same state to challenge each other’s

State law statutory authority. Such a result should not be

implied without a clear statement that Congress intends

precisely that result. /s/a Petroleum Corp., 485 U.S. at

900. This is a case where the plain language of the

Statute, especially when compared to the text of Section

2000e(a), dictates the conclusion that Kaw Housing

Authority cannot sue Ponca City under the Fair Housing

Act.

19

The question in this case is not what a court thinks

Congress should have done. Congress, not the courts,

has the exclusive power "to formulate legislative policies

and mandate programs and projects [and] establish their

relative priority for the Nation." TVA v. Hill, 437 U.S.

153, 194 (1978). "[W)hatever the limits of the judicial

power to imply or create remedies, it has long been the

law that such power should not be exercised in the face

of an express decision by Congress concerning the scope

of remedies available under a Particular statute." Jett v.

Dallas Ind. Schoo! Dist., 491 U.S. at 732. "[CJourts

should not expand the coverage of the statute to subsume

other remedies....". National R.R. Passenger Corp. v.

National Ass‘n of R.R. Passengers, 414 U.S. 453, 458

(1974). The question in this case is not what Congress

should have done, but what Congress did.

The Fair Housing Amendments Act of 1988

replaced former Section 3612 with current Section 3613.

The new provision allows for enforcement by an

“aggrieved person”, in contrast to the old law, which had

ae a re Tn er ten era

20

used the broad term, "plaintiff". Indeed, the new statute

uses the active voice - "[aJn aggrieved person may

commence a civil action ..." - whereas the repealed

provision used the all-inclusive, passive voice ("the rights

granted by 88 3603, 3604, 3605, and 3606 of this Title

may be enforced by civil actions ...."). Thus, the new

provision, in contrast to the old, precisely provides who

may employ it - an “aggrieved person". But, a

governmental agency, like Kaw Housing Authority, is not

a "person", and therefore cannot be an “aggrieved

person”.

Standing under Section 3613 may be as broad as

that afforded by Article Ill. Indeed, the legislative history

of the 1988 amendments so indicates. See H. R. Rep.

No. 711, 100th Cong., 2nd Sess., reprinted in 1988 U.S.

Code Cong. & Admin. News 2173, 2184. Although

Gladstone, and Havens Realty, clarified the issue of

Standing under the Fair Housing Act, these cases never

examined the scope of the term "person" insofar as a

governmental entity is concerned. That is, they never

21

reviewed the issue of cause of action under the Fair

Housing Act. Cf. Davis v. Passman, 442 U.S. at 239 n.

18. Indeed, in Beliwood, this Court specifically stated

that it did not consider the issue whether the village was

a "person" or a "private person” under the Fair Housing

Act. Bellwood, 441 U.S. at 109 n. 21. By contrast, this

Case squarely and properly presents the issue.

Whether a governmental entity is a “person” under

the Fair Housing Act is an important question of federal

law which has not been, but should be, settled by this

Court. If the words defining the term "person" in the Civil

Rights Act of 1964 and the Civil Rights Act of 1968 are

to have any meaning at all, they cannot be identical. The

use of the terms "governments, governmental agencies,

political subdivisions,” in Title Vii of the 1964 Act cannot

possibly have the same significance as has their exclusion

from Title VII of the 1968 Act.

In Oscar Mayer & Co. v. Evans, 441 U.S. 750

(1979), the Court, per Justice Brennan, unanimously

endorsed the practice of construing together civil rights

lh

|

22

Statutes which in relevant part are "virtually in haec

verba...." 441 U.S. at 755. Because the Age

Discrimination in Employment Act of 1967, 29 U.S.C. §§

621 et seq., and, as here, Title Vil of the Civil Rights Act

of 1964, used similar words and had similar purposes,

they should be construed pari materia. See also

Northcross v. Board of Educ. of the Memphis City

Schools, 412 U.S. 427, 428 (1973) (Emergency School

Aid Act of 1972 and Civil Rights Act of 1964 construed

"pari passu").

Likewise, Sections 2000e(a) and 3602(d) should be

construed pari materia. Because the one statute adds

"government, governmental agencies, political

Subdivisions," to its definition of the term, "person", and

the other does not, the latter must not include those

entities when it refers to a “person”.

Congress could have defined "person" as one or

more individuals or entities of any type. Or it could have

chosen to define the term in any number of broad ways.

But it did not do so. Instead, Congress purposely used

CO

23

the words, "governments, governmentalagencies, political

subdivisions,” in one civil rights statute but did not do so

in the other civil rights statute. Allowing a court to

substitute its unsubstantiated notions of Congressional

intent for the plain meaning of Congressional acts is such

a departure from the accepted and usual course of judicial

proceedings as to call for an exercise of this court’s power

of supervision.

POINT Il:

Failure to accord full faith and credit to a prior state

court judicial proceeding is a serious departure from the

accepted and usual course of judicial proceedings and

conflicts with the decisions of other federal courts of

appeals and this Court.

According to 28 U.S.C. § 1738:

[T]he records and _ judicial

proceedings of any such State

... Shall have the same full faith

and credit in every court within

the United States....

This means that a "federal court must give to a state-

) aera

24

court judgment the same preclusive effect as would be

given that judgment under the law of the State in which

the judgment was rendered.” Migra v. Warren City

School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). As

this court has clarified in the context of a Title VII claim,

"the comity and federalism interests embodied in § 1738

are not compromised by the application of res judicata and

collateral estoppel..." in this type of civil rights litigation.

Kremer v. Chemical Construction Corp., 456 U.S. 461,

478 (1982).

In case after case over the past decade, this Court

has repeatedly held that it was fundamental error for a

court of appeals to refuse to consider the possible

preciusive effect under state law of a prior, state-court

judgment. Parsons Steel, Inc. v. First Alabama Bank, 474

U.S. 518, 525 (1986); Marrese v. American Academy of

Orthopaedic Surgeons, 470 U.S. 373, 375, 380, 384

(1985); Migra, 465 U.S. at 81; Haring v. Prosise, 462

U.S. 306 (1983); Kremer, 456 U.S. at 485; Allen v.

McCurry, 449 U.S. 90, 96 (1980). In this case, however,

25

the Tenth Circuit completely ignored the clearly expressed

law as enunciated by this Court and as practiced by every

other circuit court of appeals? in this country. In so

doing, the Tenth Circuit has made a "fundamental

departure from traditional rules of preclusion.” Kremer,

456 U.S. at 485.

The provisions of the Federal Full Faith and Credit

Act generally require that a court "consider first the law

of the State in which the judgment was rendered to

determine its preclusive effect.” Marrese, 470 U.S. at

375. Furthermore, Section 1738 specifically commands

that federal courts may not employ their own rules of res

judicata to determine the effect of a state court judgment,

but instead must accept the rules chosen by the State

from which the judgment is taken. 470 U.S. at 380

(quoting Kremer, 456 U.S. at 481-482). This Court has

repeatedly instructed the courts of appeals not to attempt

? See generally cases collected in Wright, Miller &

Cooper, Federal Practice & Procedure § 4471 n. 7

(Supp. 1991). See also Concordia v. Bendekovic, 693

F.2d 1073, 1077-1078 n. 6 (11th Cir. 1982).

errr

26

to "determine the preclusive effect of a state court

judgment without regard to the law of the State in which

judgment was rendered.” Marrese, 470 U.S. at 380; see

also Parsons Steel, 474 U.S. at 525; Kremer, 456 U.S. at

466.

Instead of following the mandate of Section 1738,

the Tenth Circuit absolutely ignored state law. The court

made no reference to state law. It cited no Oklahoma

cases.

The Tenth Circuit simply made the unsubstantiated

statement that “the record does not reflect sufficient

evidence that the Authority was given a full and fair

opportunity to litigate [the Fair Housing Act] claim before

the state court...." Yet, a reading of the complaint, and

of every other document of record in this case, does not

give even a hint that Kaw Housing Authority received

anything but a full and fair opportunity to litigate before

the state court. To the contrary, the entire record

affirmatively shows that Kaw Housing Authority in fact

received all the process that was its due in the Kay

27

County District Court. Indeed, although the court below

cited Montana v. United States, 440 U.S. 147, 164 n.11

(1979), for the proposition that there was reason to doubt

the fairness of the procedures followed in the prior state

court litigation, it neither gave any substantiation for that

Statement nor paid any credence to this Court’s

Statements in Kremer clarifying the meaning of that cited

footnote.

This Court has stated:

[W]here we are bound by the

Statutory directive of § 1738,

State proceedings need do no

more than satisfy the minimum

procedural requirements of the

Fourteenth Amendment’s Due

Process Clause in order to

qualify for the full faith and

credit guaranteed by federal

law. It has long been

established that § 1738 does

not allow federal courts to

employ their own rules of res

judicata in determining the

effect of state judgments.

Rather, it goes beyond the

common law and commands a

federal court to accept the rules

chosen by the State from

which the judgment is taken.

|

28

Kremer, 456 U.S. at 481, 482. The Court further

elaborated, stating that "What a full and fair opportunity

to litigate entails is the procedural requirements of due

process.” 456 U.S. at 482 n. 24.

Stated simply, the Tenth Circuit did precisely what

Section 1738 prohibits -- it substituted its own concept of

res judicata for that of Oklahoma. This step it may not

take. As one authority has written concerning another

Tenth Circuit claims preclusion holding upon which the

court below relied, "[t]he opinion seems a thinly veiled

expression of dissatisfaction with the general rules

announced by the Supreme Court." Wright, Miller &

Cooper, Federal Practice & Procedure § 4471 n. 27.10

(referring to the holding in Scroggins v. Kansas, 802 F.2d

1289 (10th Cir. 1986)).

The complaint alleges that Ponca City sued Kaw

Housing Authority in state court, seeking to permanently

enjoin it from operating within the Ponca City city limits

without Ponca City’s permission. The complaint then

alleges that the state court granted judgment in favor of

29

Ponca City, and thereby issued the requested permanent

injunction. See appendix at page 44. Although the

complaint does not so state, Kaw Housing Authority

asserts that the state court judgment was somehow

irregular, presumably because of the procedures, allowed

by Rule 13, Rules for District Courts of Oklahoma, Okla.

Stat. tit. 12, Ch. 2, App., that a state district court may

grant summary judgment to the non-moving party. That

is the only factor about the prior state court proceedings

which might seem at all odd to a federal court. Yet, the

° In fact, it is difficult to tell whether the

district court or the Tenth Circuit considered the

voluminous record that Kaw Housing Authority and

Ponca City submitted for consideration. Neither

Judge Russell of the Western District of Oklahoma

nor the Tenth Circuit indicated that the document

had been excluded. Cf. Rule 12(b), Fed. R. Civ.

Proc. (last sentence). Both the transcript of the

district Court proceedings and the Tenth Circuit

opinion itself make it seem as if the courts did not

exclude those additions to the complaint. On the

other hand, both courts specitically considered the

motion as one to dismiss. In any event, with or

without the supplemental material, there is nothing

in the record to suggest anything but that Kaw

Housing Authority had a full and fair cpportunity to

litigate in Kay County District Court.

i

30

Oklahoma rules specifically make that procedure available,

to all litigants, in all state court civil proceedings.

This Court has stated that "no single model of

procedural fairness, let alone a particular form of

procedure, is dictated by the Due Process Clause."

Kremer, 456 U.S. at 483. Surely, when all parties have

notice, through published rules, that a court has power to

decide a motion for either party, the procedures comport

with the Due Process Clause of the Fourteenth

Amendment.

Inescapable is the conclusion that Oklahoma’s

"panoply of procedures, complemented by ... judicial

review, is sufficient under the Due Process Clause.”

Kremer, 456 U.S. at 484. The fact that Kaw Housing

Authority failed to avail itself of all of the procedures state

law allows may demonstrate that Kaw Housing Authority

made an unwise tactical decision; but it does not

constitute a sign of the inadequacy of Oklahoma’s

procedures. 456 U.S. at 485.

A brief review of Oklahoma law demonstrates that

ss enemanamammmmmmmamn

31

the Oklahoma state court judgment is entitied to

preciusive effect in Oklahoma. See Citizens State Bank of

Hugo v. Hall, 413 P.2d 513 (Okla. 1966) (prior judgment

on the merits precludes relitigation of the same underlying

claims, including all matters germane to issues which

could or might have been litigated); Kelley v. Kelley, 447

P.2d 774 (Okla. 1968) (res judicata applies where facts

determined in former case are the essential facts of

subsequent action); Banks v. City of Ardmore, 188 Okla.

611, 112 P.2d 372 (1941) (res judicata applies against

claims which could have been brought as counterclaims):

Aetna Insurance Co. v. Ralls, 200 Okla. 32, 190 P.2d 787

(1948) (status as plaintiff or defendant in prior action does

not preclude application of res judicata). The permanent

injunction Kaw Housing Authority refers to in its own

compiaint is itself a final judgment. Okla. Stat. tit. 12, §

1381 (1981); Morse v. Earnest, inc., 547 P.2d 955 (Okla.

1976).

Kaw Housing Authority itself chose to file a motion

for summary judgment and to dismiss, instead of filing a

en

32

| counterclaim in the state court proceeding. Cf. Okla.

Stat. tit. 12, § 2013 (counterclaims procedure). Kaw

Housing Authority itself chose to take the risks attendant

with filing a motion for summary judgment in Oklahoma,

that the court had the power to render judgment even to

the non-moving party. See Rule 13(e), Rules for District

Courts of Oklahoma. Okla. Stat. tit. 12, Ch. 2, App.

A cursory comparison of the state court litigation

and this case likewise demonstrates that, indeed, the

cases involved precisely the same issue. The issue in

both cases concerned the power of Kaw Housing

Authority to operate within the city limits of Ponca City

without the city’s permission. If Kaw Housing Authority

did not need Ponca City’s permission, then there is no

Article lll actual case or controversy. Kaw Housing

Authority could do what it Says it wants to do, at any

time. If, on the other hand, state law requires Kaw

Housing Authority to obtain Ponca City’s permission, as

the complaint itself alleges, see appendix at pages 45-49,

and as state law provides, then, quite clearly, res judicata

33

attaches. For that is precisely what the Kay County

District Court judgment held.

The Tenth Circuit’s order actually is a double

barrelled attack on the powers of the State of Oklahoma

within the American federal system. This Court has

stated that “"[dlepriving state judgments of finality ...

would violate basic tenets of comity and federalism.”

Kremer, 456 U.S. at 478; Maresse, 470 U.S. at 380. Not

only does the Tenth Circuit’s judgment attack the

credibility of an Oklahoma state court judgment, but it

also adversely affects interests of federalism by calling

into question the very statutory method by which

Oklahoma called into being two of its own political

subdivisions, the Kaw Housing Authority and the City of

Ponca City.

As the state court judge ordered, Kaw Housing

Authority must obtain Ponca City’s permission in order to

operate within Ponca City. Because Ponca City had not

granted that permission, the judge enjoined Kaw Housing

Authority from operating within the city limits. That order

a

34

reflects not only the considered judgment of a Sitting state

court judge, but also the very law of Oklahoma which

created Kaw Housing Authority, Okla. Stat. tit. 63, §§

1054, 1057, as Kaw Housing Authority itself specifically

pleaded in its complaint. See appendix at pages 45-49.

Certainly, this is an instance where "[t]he States

unquestionably do ‘retai[n] a significant measure of

sovereign authority.’" Garcia v. San Antonio Metropolitan

Transit Auth., 469 U.S. 528, 549 (1985) (quoting EEOC

v. Wyoming, 460 U.S. 226, 269 (1983) (Powell, J.,

dissenting)). Certainly, a state retains the right to regulate

the relative powers of its various agencies and political

Subdivisions that it creates.

One commentator has described the process that a

court is supposed to follow when determining the res

judicata effect of a previous state court judgment.

When a state court judgment is

offered to establish preclusion

in a federal ‘civil rights’ action,

it is entitled to the res judicata

effects described by state law.

Section 1738 permits denial of

res judicata for lack of a full

35

and fair opportunity to litigate

only if the state procedures fell

below the requirements of due

process, or presumably if state

courts would themselves adopt

a wider full and fair opportunity

limit.

Wright, Miller and Cooper, Federa/ Practice and Procedure

§4471 (Supp. 1991) (emphasis added). That

commentator provided further elucidation of the so-called

"full and fair opportunity to litigate” exception:

In cases controlled by § 1738,

however, [the Court in Kremer]

concluded that this exception

permits federal courts to ignore

a state judgment only if the

state procedures violated due

process.

Discrimination plaintiffs may

seek ways to avoid the

preclusion result of the Kremer

case, but there are few

promising paths to follow. The

only clear release occurs if

state courts themselves would

not recognize preciusion.... It

does not-seem likely that any of

these arguments will succeed

often; at least most will not

succeed at all.

ee

36

* & @

There is obviously room in the

Court’s opinion to defeat

preclusion by showing that the

State proceedings did not afford

a full and fair opportunity to try

the discrimination claim. The

test applied to. state

proceedings, however, is the

due process test.... [Claimants

should find little solace in the

prospect that they can avoid

preclusion by showing a denial

of due process in_ state

proceedings.

Id.

Although Kaw Housing Authority perhaps did not

need to plead its case as specifically as it did, the

complaint itself pleads with clarity that Kaw Housing

Authority had the opportunity to litigate the issues it

raises in this case in the district court of Kay County,

Oklahoma. The complaint likewise demonstrates that the

Kay County District Court entered a final judgment which

operates to bar this claim in this case. The fact that Kaw

Housing Authority made what it now considers to have

been a mistake in its litigation tactics does not suffice to

37

limit the res judicata effect of the prior state court

judgment. And the wholly unsubstantiated assertion by

the court below that there was insufficient evidence to

show that Kaw Housing Authority had a full and fair

opportunity to litigate its Fair Housing Act claim, without

any reference to Oklahoma law or the state court’s

procedures, is such a departure from the normal practice

of all federal courts, as clearly delineated in the opinions

of this Court, as to require this Court’s supervision in this

case.

POINT Ill:

Requiring a successful litigant to file a cross-appeal

from a judgment dismissing all claims is in conflict with

applicable decisions of this Court and is such a departure

from the accepted and usual course of judicial proceedings

as to call for an exercise of this Court’s power of

supervision.

Unprecedented is the assertion of the Court of

Appeals that the City of Ponca City must have filed a

cross-appeal in order to assert that the doctrine of res

38

judicata barred this claim. This court has Stated, on

numerous occasion, that "the appellee may, without

taking a cross-appeal, urge in support of a decree any

matter appearing in the record, although his argument

may involve an attack upon the reasoning of the lower

court or an insistence upon matter overlooked or ignored

by it." Dandridge v. Williams, 397 U.S. 471, 475, n. 5

(1970) (citations omitted). See also Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, inc., 467 U.S. 837,

842 n. 7 (1984); Washington v. Confederated Bands and

Tribes of the Yakima Indian Nation, 439 U.S. 463, 476 n.

20 (1979); Massachusetts Mutual Life Ins. Co. v. Ludwig,

426 U.S. 479, 480-481 (1976). Where a party has

absolutely succeeded on the merits in the trial court, as

Ponca City did here, see Fed. R. Civ. P. 41(b), it is

difficult to imagine how, or why, a party should ever

cross-appeal.

Should a party who wins always file a cross-

appeal? Surely such a requirement would further backlog

the courts with unnecessary paper. Should the prevailing

39

party seek a new trial? Such an absurd result is precisely

what the order of the Tenth Circuit would require.

When a party wins on the merits, the case ends.

There is no reason to file an appeal to vindicate an

alternative argument.

This is not a case where Ponca City is attempting

to enlarge its rights beyond those already given it by the

trial court. Cf. Thigpen v. Roberts, 468 U.S. 27 (1984).

Ponca City does not seek, for example, to succeed on the

merits of a count it lost. Instead, it is merely seeking

affirmance of the district court’s dismissal order, albeit on

a different basis than the court below adopted. Blum v.

Bacon, 457 U.S. 132, 137 n.5 (1982). Any order

according res judicata effect to the prior state court

judgment would conclude precisely as the trial court's

judgment did: "Therefore, the motion to dismiss is hereby

granted.” See appendix at pages 56-57.

The Tenth Circuit’s concern for “other potentia!

plaintiffs having some relationship" with Kaw Housing

Authority is nonsensical. The responsibility of a court is

ee

40

to deal with the parties and the case before it. This

litigation, like the prior state court proceeding, is between

this petitioner and this respondent. This is not a case

between John Doe and Jane Roe, but between Kaw

Housing Authority and Ponca City. In any event, how the

Tenth Circuit could possibly know the claims preclusive

effect of this case on non-parties is mystifying, since that

court never examined Oklahoma law, the controlling law.

The court’s decision, whether on the basis of the

Civil Rights Acts of 1866 and 1871, the Fair Housing Act

or the doctrine of res judicata, will bind only the parties

before it. Of course, a privy to a litigant may later be

found to be bound by the same result. But the privy

certainly has the opportunity to litigate for itself both its

Status as a privy and the preclusive effect of the prior

determination. See Montana v. United States, 440 U.S.

147 (1979). Other parties who are not privies, in any

event, always retain the right to seek to vindicate their

own rights.

Ponca City could not have won a more complete

41

victory. Ponca City moved to dismiss the complaint. The

trial court dismissed the complaint. Ponca City objected

to a motion to set aside the dismissal. The trial court

denied Kaw Housing Authority’s motion. A more

complete victory was not possible.

The point is this - Ponca City may assert the

doctrine of res judicata to support the order of dismissal

in this case without filing a cross-appeal. As previously

stated in this petition, the doctrine of res judicata

absolutely bars these claims. Ponca City, which obtained

a judgment of dismissal, is entitled to defend that

judgment without having to appeal or to cross-appeal.

The Tenth Circuit’s order is such a departure from the

normal and customary conduct of judicial proceeding, and

is in such conflict with decisions of other federal courts of

appeals, that this court should issue a writ of certiorari to

the Tenth Circuit in this case.

CONCLUSION

The Tenth Circuit so far departed from the accepted

a i a a i a tc

42

and usual course of judicial proceedings in several

respects as to Call for an exercise of this Court’s power of

Supervision. The court openly substituted its own

concept of the reach of the Fair Housing Act for the plain

words of Congress’s enactment. That, in turn, resulted in

a serious breach of Customary norms of federalism.

Similarly, the Tenth Circuit absolutely ignored the plain

rulings of this Court in regard to practice under the Federal

Full Faith and Credit Act, by paying absolutely no

credence to Oklahoma’s claims preclusion law. This, too,

has had a serious impact on the federal system, by calling

into question the finality and viability of state court

judgments. Lastly, the Tenth Circuit created a new

requirement that a party who is absolutely successful on

the merits of the case must nevertheless appeal the trial

court’s decision in order to preserve an alternative basis

for supporting the trial court’s decision. Petitioner, City of

Ponca City, therefore prays this Court, upon consideration

of its argument, to grant it certiorari for review of these

important issues, and to allow petitioner to file its brief

43

and articulate :nore fully the reasons that the Tenth

Circuit’s opinion shouid be reversed.

Respectfully submitted,

ANDREW W. LESTER

Counsel of Record

KORNFELD, LESTER, FRANKLIN

RENEGAR & BRYANT

Robinson Renaissance

119 N. Robinson, Suite 820

Oklahoma City, OK 73102

(405) 232-8436

LAURA HOLMGREN-GANZ

Attorney for Petitioner

KORNFELD, LESTER, FRANKLIN

RENEGAR & BRYANT

Robinson Renaissance

119 N. Robinson, Suite 820

Oklahoma City, OK 73102

(405) 232-8436