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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 912

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0347%3A1. Public record. Not legal advice.