Opposition Brief — Sisters of the Holy Family of Nazareth v. City of Grand Prairie

Q2

No. 94-238

In The

Supreme Court of the United States

October Term, 1994

*

SISTERS OF THE HOLY FAMILY OF NAZARETH,

A TEXAS CORPORATION,

Petitioner,

CITY OF GRAND PRAIRIE, TEXAS,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of Texas

¢

BRIEF IN OPPOSITION FOR RESPONDENT

CITY OF GRAND PRAIRIE, TEXAS

+.

W. ALAN WRIGHT

Counsel of Record

Paut C. ISHAM

MICHELLE E. McCoy THomas L. ALLENSWORTH

HayNes AND Boones, L.L.P. City of GRAND Prairie, TEXAS

3100 NationsBank Plaza Office of the City Attorney

901 Main Street P.O. Box 530011

Dallas, Texas 75202-3789 Grand Prairie, Texas 75053-0011

Telephone: (214) 651-5000 Telephone: (214) 660-8026

Telecopier: (214) 651-5940 Telecopier: (214) 263-1870

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTER STATEMENT OF QUESTIONS PRESENTED

Whether this Court has jurisdiction under 28 U.S.C.

§ 1257 to issue a petition for writ of certiorari to the

highest court of a state that refuses to exercise discretion-

ary jurisdiction to review the judgment and opinion of an

intermediate state appellate court?

Whether a taxpayer who successfully challenges a tax

assessment ordinance under state law may recover attor-

neys’ fees under 42 U.S.C. § 1988(b) absent proof of a

federal constitutional violation?

li

LIST OF ALL PARTIES TO THE PROCEEDING

Petitioner:

Sisters of the Holy Family of

Nazareth, a Texas corporation

1814 Egyptian Way

P.O. Box 530959

Grand Prairie, Texas 75053-0959

COUNSEL FOR PETITIONER

Charles J. Winikates

Counsel of Record

Charles J. Winikates, Jr.

Regina Winikates Mentesana

Frances Anne Fazio

Winikates & Winikates

5728 L.B.J. Freeway

Dallas, Texas 75240

Telephone: (214) 386-0636

Telecopier: (214) 386-0639

Respondent:

City of Grand Prairie, Texas

P.O. Box 530011

Grand Prairie, Texas 75053-0011

COUNSEL FOR RESPONDENT

W. Alan Wright

Counsel of Record

Paul C. Isham

Michelle E. McCoy Thomas L. Allensworth

Haynes and Boone, L.L.P. City of Grand Prairie, Texas

3100 NationsBank Plaza Office of the City Attorney

901 Main Street P.O. Box 530011

Dallas, Texas 75202-3789 Grand Prairie, Texas 75053-0011

Telephone: (214) 651-5000 Telephone: (214) 660-8026

Telecopier: (214) 651-5940 Telecopier: (214) 263-1870

sic lailaliiiaiiaeaiiaiaild

iii

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRESEN-

BE CEN Sa SUN Fe hh CoN KS WES s eS ccs eeteensecess i

LIST OF ALL PARTIES TO THE PROCEEDING .... _ ii

Re ee iii

po iv

ee hos heb bee eh ede es ceveness 2

RESPONSE TO SISTERS’ STATEMENT REGARDING

EE ee eee 3

STATUTES AND RULES INVOLVED............... 5

cae yo ee: 6

REASONS FOR DENYING THE WRIT............. 7

A. Sisters improperly relies upon cases that do not

involve adequate pre-deprivation remedies....... 8

B. Invalidity of the assessment ordinance does not

automatically entitle Sisters to recover attor-

ee Iau n'y 46 6 4% 9.9 0.0 048 ws.9-6 2.0 9

C. Under the record in this case, Sisters has not

shown its entitlement to attorneys’ fees...... 11

D. Because no federal constitutional violation

occurred, there is no basis for an award of

ae ceesie ad ida vies e oan ds eecssces 15

I ee 16

iv

TABLE OF AUTHORITIES

Page

Cases

Albright v. Oliver, 114 S.Ct. 807 (1994)................ 9

American Ry. Express Co. v. Levee, 44 S.Ct. 11 (1923) ..... 4

City of Arlington v. Byrd, 713 S.W.2d 224 (Tex. App.

— Fort Worth 1986, writ ref’d n.r.e.), cert. denied,

ee ee ee Es oo does sah dN edo veecewenas 9, 10, 11

City of Grand Prairie v. Sisters of the Holy Family of

Nazareth, No. 05-92-01962-CV, 1993 WL 290840

(Tex. App. — Dallas July 27, 1993, n.w.h.) .......... 2

City of Grand Prairie v. Sisters of the Holy Family of

Nazareth, 868 S.W.2d 835 (Tex. App. - Dallas

re ee se Sos od ole Sud nes bod xed os 2

City of Riverside v. Rivera, 477 U.S. 561 (1986) ....... 15

City of Waco v. Hester, 805 S.W.2d 807 (Tex. App. -

Wuem. BGR, Week GORGE)... oc ccc ccc cc ccaceesss 10, 15

Coleman v. Thompson, 111 S.Ct. 2546 (1991) ........... 5

Farrar @. faeG@y, 113 S.Ct. S06 (1992)... - 2. cc ienes 16

Federal Deposit Ins. Corp. v. City of New Iberia, 921

Pe Ge CN GOR: BPE ~ Foss asievccansveseieas 13, 14

Interstate Circuit, Inc. v. City of Dallas, 88 S.Ct. 1298

CRUE Oe ode Foun 4005 ayes ies erse das er Lebeekeass 3

Kelly v. City of Leesville, 897 F.2d 172 (5th Cir. 1990) .... 15

Matthews v. Huwe, 46 S.Ct. 108 (1925) ............... 15

McDonald v. Doe, 748 F.2d 1055 (5th Cir. 1984) ...... 15

McKesson v. Division of Alcoholic Beverages &

Bees, TAG Tice. Bee CTE wh de ke mdeteccreckans 7, 8

Vv

TABLE OF AUTHORITIES — Continued

Page

Mennonite Bd. of Missions v. Adams, 462 U.S. 791,

Se ee oi 0s Fo be See Ee osu pkebe ess 14

Michigan-Wisconsin Pipe Line Co. v. Calvert, 74 S.Ct.

RRA CDOS, Pre ito pr ee ree 4

Parvatt & seater, G51 U.S. SEF GIGGD py. 5 oon cc neice. 9

R.J. Reynolds Tobacco Co. v. Durham County, 107

es EE COO 6 68 Raa A RRR AS RAMOS K Oda Ces 5

Williamson Co. Regional Planning Comm'n v. Ham-

ilton Bank, 473 U.S. 172, 105 S.Ct. 3108 (1985)

SRE MYEERE VAST EGET CCR ARE RSEd Poised, Coane, Fy Shy OO

STATUTES AND RULES

Tex. Kev. Civ. Stat. Ann. art. 1106b.............. passim

Se Oey SE ND hn i ve pacha ek Chad sean aceed ees 3

ee ae nese sath aketuvekven sehen 2, 3, 4, 16

RP eee Pe ee LET CORRE TCT aS Pe

Oe SM rea fe kdc ans ka cdedatvadneves con’ passim

org oka ody a aa 5 sneer ewes 604% 3 os 2

ee NEE aA ick 25 esta ssl Wbs--4:k ba.04 owe nes 6

MiscELLANEOUS

Stern, Gressman and Shapiro, Supreme Court Prac-

ee ee es is sida dad okew cauees¥nus 4

No. 94-238

¢

In The

Supreme Court of the United States

October Term, 1994

+

SISTERS OF THE HOLY FAMILY OF NAZARETH,

A TEXAS CORPORATION,

Petitioner,

CITY OF GRAND PRAIRIE, TEXAS,

Respondent.

+

On Petition For Writ Of Certiorari

To The Supreme Court Of Texas

+

BRIEF IN OPPOSITION FOR RESPONDENT

CITY OF GRAND PRAIRIE, TEXAS

+

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

Respondent, the City of Grand Prairie, Texas (the

“City” or “Respondent”) respectfully requests that this

Court deny the Petition for Writ of Certiorari to the

Supreme Court of Texas (the “Petition”) filed by the

Sisters of the Holy Family of Nazareth (“Sisters” or “Peti-

tioner”).

Sisters’ Petition should be denied because: (1) the

Texas Supreme Court’s May 11, 1994 order denying Sis-

ters’ application for writ of error is not a judgment

1

|

reviewable by this Court under 28 U.S.C. § 1257; (2) there

is no conflict between the October 21, 1993 judgment of

the Dallas Court of Appeals in this case and any decision

of this Court or any other court; and (3) there is no issue

of national importance involved in this case.

¢

OPINIONS BELOW

In its original opinion and judgment, the Court of

Appeals for the Fifth District of Texas at Dalias, Texas,

affirmed the judgment of the 134th District Court of

Dallas County, Texas, invalidating certain ordinances

passed by the City assessing Sisters for benefits received

from paving and drainage improvements and awarding

Sisters $63,768.00 in attorneys’ fees under 42 U.S.C.

§ 1988. See City of Gew».' Prairie v. Sisters of the Holy Family

of Nazareth, No. 05-¥2-01962-CV, 1993 WL 290840 (Tex.

App. — Dallas July 27, 1993, n.w.h.) (not designated for

publication).

The City moved for rehearing, and on October 21,

1993, the court of appeals vacated its earlier judgment

and issued a new judgment and opinion, which is

reported at 868 S.W.2d 835 (Tex. App. — Dallas 1993, writ

denied). On rehearing, the court of appeals concluded

that Sisters - having successfully pursued a predepriva-

tion rernedy under state law — did not meet its burden to

show an unconstitutional taking or deprivation of prop-

erty in violation of the Fifth and Fourteenth Amendments

to the United States Constitution. Because Sisters did not

show any violation of its federal constitutional rights, the

court of appeals reversed the portion of the trial court’s

judgment awarding Sisters attorneys’ fees under 42

U.S.C. § 1988.

Sisters filed an application for writ of error seeking

review by the Texas Supreme Court. On May 11, 1994, the

Texas Supreme Court refused to exercise its discretionary

jurisdiction and denied Sisters’ application with the nota-

tion “writ denied.”! Sisters now asks this Court to issue a

writ of certiorari to the Supreme Court of Texas. See

Petition for Writ of Certiorari (“Petition”) at 1.

¢

RESPONSE TO SISTERS’ STATEMENT

REGARDING JURISDICTION

Sisters asserts that this Court has jurisdiction to issue

a petition for writ of certiorari to the Supreme Court of

Texas under 28 U.S.C. § 1257, which provides for this

Court’s discretionary review of final judgments or

decrees “rendered by the highest court of a State in which

a decision could be had.” 28 U.S.C. § 1257(a).

However, if a state supreme court refuses to exercise

its discretionary jurisdiction to hear a case (as the Texas

Supreme Court has done in this case), the judgment of the

court of appeals (not the state supreme court’s order

refusing to hear the case) is the judgment reviewable

under Section 1257. See Interstate Circuit, Inc. v. City of

Dallas, 88 S.Ct. 1298, 1300 n.1 (1968) (noting that the

1 The docket notation “writ denied” signifies that the Texas

Supreme Court is of the opinion that the application presents no

error of law which requires reversal or which is of such impor-

tance of the jurisprudence of the state as to require correction.

See Tex. R. App. P. 133(a).

“Texas Supreme Court denied discretionary review and

therefore the appeal is from the judgment of the [court of

appeals]” under Section 1257); Michigan-Wisconsin Pipe

Line Co. v. Calvert, 74 S.Ct. 396, 397 (1954) (Texas Supreme

Court had “refused” petitioner’s application for writ of

error; thus, appeal was properly from the decision of the

court of appeals, not the supreme court).? See also Ameri-

can Ry. Express Co. v. Levee, 44 S.Ct. 11, 12 (1923) (constru-

ing analogous discretionary review powers of Louisiana

Supreme Court and holding that, when supreme court

declined to exercise discretionary jurisdiction, the court

of appeals was “the highest court of the State in which a

decision could be had” within the meaning of Section

1257); Stern, Gressman and Shapiro, Supreme Court Prac-

tice (6th ed.) at § 3.16-.17 (“An order of a court of last

resort declining to review a case is not ordinarily the

judgment which is reviewable under § 1257; in that event,

the reviewable judgment is that of the highest court pos:

sessing and exercising jurisdiction.”) (emphasis added)

(citations omitted).

2 In Calvert, this Court construed the language in Section

1257 providing for an appeal from the “highest court of a State in

which a decision could be had” in resolving the jurisdictional issue.

See 74 S.Ct. at 397 (emphasis added). Although Calvert and

Interstate Circuit, Inc. were decided before the 1988 amendments

to Section 1257 eliminating the provisions for mandatory appeal!

to this Court, the emphasized language remains in the current

version of Section 1257 providing for this Court’s review of state

court decisions by petition for writ of certiorari.

3 To be distinguished are cases involving the highest court

of a state’s dismissal of an appeal of right in which the higher

court’s dismissal may be considered to be a decision on the

merits of the case, or equivalent to an affirmance of the

Moreover, this Court will not review a question of

federal law decided by a state court if the decision of that

court rests on a state law ground that is independent of

the federal question and adequate to support the judg-

ment. See Coleman v. Thompson, 111 S.Ct. 2546, 2553-54

(1991). As the Court stated in Coleman, the “independent

and adequate state law ground” doctrine is jurisdictional.

Id. at 2554. “Because this Court has no power to review a

state law determination that is sufficient to support the

judgment, resolution of any independent federal ground

for the decision could not affect the judgment and would

therefore be advisory.” Id. As discussed below, the judg-

ment in this case is based upon state law grounds and

does not warrant this Court’s review.

Based upon these authorities and as required by

Supreme Court Rule 15.4, the City objects to this Court's

jurisdiction to grant a writ of certiorari to the Supreme

Court of Texas as requested in Sisters’ Petition.

+

STATUTES AND RULES INVOLVED

Portions of the relevant constitutional provisions,

statutes, ordinances and regulations are set forth in Sis-

ters’ Petition. See Petition at 2-5. In the interest of brevity,

appellate court’s decision. See, e.g., R.J. Reynolds Tobacco Co. v.

Durham County, 107 S.Ct. 499, 505-06 (1986); Matthews v. Huwe,

46 S.Ct. 108, 108-09 (1925). In contrast, in this case, the Texas

Supreme Court's denial of Sisters’ application for writ of error

represents that Court’s decision not to exercise its discretionary

jurisdiction and does not in any way constitute an opinion on

the merits of the case.

the City will not restate these provisions. Sup. Ct. Rule

24.2.

STATEMENT OF THE CASE

Although Sisters’ statement of the case is generally

correct, see Petition at 6-7, Sisters omits certain significant

facts upon which the Dallas Cou: of Appeals relied in

rendering its October 21, 1993 opinion and judgment.

Accordingly, the City offers the following supplement to

Sisters’ statement of the case. Sup. Ct. R. 24.2.

Sisters fails to mention in its Petition the numerous

procedural safeguards provided by article 1105b § 9 of

the Texas Revised Civil Statutes (“article 1105b”). Speci-

fically, article 1105b provides that the tax assessment is

limited to the amount of benefit conferred on the prop-

erty assessed; that notice and opportunity for a hearing

be provided before any assessment is levied; and that a

property owner has the right to withhold payment and

contest the assessment in a state district court. The tax-

payer is not, as Sisters suggests, relegated to seeking

post-deprivation relief, nor is the taxpayer forced to pay

the assessment under protest.

Indeed, it is undisputed that Sisters was never

required to pay any amount of the assessment levied

against it and that the lien imposed on its property has

been removed as a result of its successful challenge to the

assessment ordinance in Texas state court. Moreover, Sis-

ters was not harmed by any lien because it had no inten-

tion of selling its property in the near future. Sisters has

achieved all of the relief it sought through its pursuit of

state law proceedings. In this respect, Sisters is a “Petitioner”

in name only ~ its attorneys are the only ones dissatisfied

with the remedy provided by the Texas state courts.

4

REASONS FOR DENYING THE WRIT

The court of appeals’ opinion in this case is com-

pletely consistent with this Court’s holdings that pre-

deprivation review, such as the procedure provided by

article 1105b for judicial review prior to payment of the

assessment, constitutes a procedural safeguard sufficient

by itself to satisfy the requirements of both the Fifth and

Fourteenth Amendments. See McKesson v. Division of Alco-

holic Beverages & Tobacco, 496 U.S. 18, 110 S.Ct. 2238

(1990); Williamson Co. Regional Planning Comm'n v. Ham-

ilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 3121 (1985).

There is no conflict between the court of appeals’ opinion

in this case and any opinion of this Court or any other

court.

Nor does this case involve any issues affecting fed-

eral law. Simply stated, this case is a dispute over attor-

neys’ fees. Sisters successfully pursued its rights under

state law, but article 1105b does not provide for an award

of attorneys’ fees. The Dallas court of appeals properly

concluded that Sisters did not suffer a federal constitu-

tional injury; accordingly, Sisters could not “prevail” on

its claim under 42 U.S.C. § 1983 and therefore was not

entitled to recover attorneys’ fees under Section 1988(b).

The decision in this case is based solely upon Texas law

and Sisters’ failure to meet its burden to show a federal

constitutional injury. This Court’s exercise of jurisdiction

is not warranted.

A. Sisters improperly relies upon cases that do not

involve adequate pre-deprivation remedies.

As this Court has recognized, due process concerns

are satisfied if a state provides a form of “ ‘predepriva-

tion process,’ for example by authorizing taxpayers to

bring suit to enjoin imposition of a tax prior to its pay-

ment, or by allowing taxpayers to withhold payment and

the interpose their objections as defenses in a tax enforce-

ment proceeding initiated by the State,” so long as the

taxpayer is “given an opportunity for a hearing before he

is deprived of any significant property interest.”

McKesson v. Division of Alcoholic Beverages & Tobacco, 496

U.S. 18, 110 S.Ct. 2238, 2250 (1990) (emphasis in original).

As the Dallas Court of Appeals properly concluded in

this case, article 1105b meets all of this Court’s require-

ments and satisfies the commands of the Due Process

Clause.

Sisters’ selective quotation from McKesson is mislead-

ing. Petition at 9. However, a careful review of the lan-

guage quoted in Sisters’ petition makes it clear that

Sisters is not in the same position as the taxpayer in

McKesson, who was required to pay taxes first and then

obtain review of the tax’s validity in a refund action. In

contrast, under article 1105b, Sisters was allowed to — and

did —- withhold payment pending review of the validity of

the assessment. Sisters did not suffer a taking of its

property without due process of law.

Sisters’ reliance upon Albright v. Oliver, 114 S.Ct. 807

(1994) and Parratt v. Taylor, 451 U.S. 527 (1981), Petition at

10-13, is similarly misplaced. Albright, in fact, did not

even involve any alleged procedural due process viola-

tions, and this Court affirmed the lower court’s ruling

that the petitioner failed to show any federal constitu-

tional violation to support his claim under Section 1983.

Albright, 114 S.Ct. at 812-13. In Parratt, this Court held

that the deprivation of property in that case did not

violate the due process clause because it resulted from

the unauthorized act of a state employee rather than an

established state procedure. 451 U.S. at 539-43, 101 S.Ct.

at 1915-16. The Court further noted in Parratt that state

law provided an adequate remedy for the alleged loss. Id.

at 543, 101 S.Ct. at 1915-16. In this case, there has been no

federal constitutional violation, and Sisters has suc-

cessfully prevailed on its remedy under state law.

B. Invalidity of the assessment ordinance does not

automatically entitle Sisters to recover attor-

neys’ fees.

The court of appeals properly concluded that the trial

court’s finding that the assessment ordinance was invalid

does not automatically entitle Sisters to recover attorneys’

fees based on its claim under 42 U.S.C. § 1983 (“Section

1983”). 868 S.W.2d at 843. The only question before this

Court is whether such a finding - without more - sup-

ports an award of attorneys’ fees under Section 1988.

Sisters argues that City of Arlington v. Byrd, 713

S.W.2d 224 (Tex. App. — Fort Worth 1986, writ ref’d n.r.e.),

cert. denied, 482 U.S. 929 (1987) supports an award of

10

attorneys’ fees in this case. Petition at 13-14. Although

Byrd and this case both involve paving assessments by a

municipality, the similarities between the two cases end

at that point. Indeed, Sisters fails to acknowledge the

crucial fact that makes Byrd inapplicable under the facts

before this Court.

The court of appeals in Byrd did not hold that the

City of Arlington’s actions in that case constituted a

violation of Section 1983. Petition at 13. Rather, the trial

court in Byrd had filed a conclusion of law upholding the

taxpayer’s contention that the assessment liens filed by

the City constituted a taking without just compensation.

Byrd, 713 S.W.2d at 229. On appeal, the City of Arlington

did not challenge this conclusion of law; rather, it chal-

lenged only the trial court’s authority to include an

award of attorneys’ fees in the judgment. Id. at 228-29; see

also 868 S.W.2d at 842 n.3 (noting that appellant in Byrd

did not challenge trial court’s conclusion of law regard-

ing “taking”).

Thus, given the unchallenged conclusion of law

regarding a federal constitutional violation, the only issue

before the court of appeals in Byrd was whether the trial

court had the authority to award attorneys’ fees under

Section 1988 in an action challenging the validity of a

special tax assessment. Id. The City does not dispute the

trial court’s authority to award attorneys’ fees in a proper

case. This, however, is not a proper case. The facts of this

case and the record before this Court do not support an

award of attorneys’ fees because no federal constitutional

violation occurred. See City of Waco v. Hester, 805 S.W.2d

807, 815 (Tex. App. - Waco 1990, writ denied) (“A neces-

sary element in a § 1983 cause of action is proof of a

11

constitutional violation.”) Moreover, the City did challenge

~ successfully — the trial court’s erroneous finding on this

point. 868 S.W.2d at 842-46. As a result, Sisters’ reliance

upon Byrd is misplaced.

C. Under the record in this case, Sisters has not

shown its entitlement to attorneys’ fees.

The court of appeals correctly explained in its opin-

ion on rehearing that, in order for Sisters to prevail on its

Section 1983 claim, it was required to show that the

procedures provided by Tex. Rev. Civ. Stat. Ann. art.

i105b do not meet the due process requirements of the

Fifth and Fourteenth Amendments. 868 S.W.2d at 842-43.

The court properly determined that, under the facts of

this case, Sisters’ federal constitutional rights were not

violated. 868 S.W.2d at 844-46.

Sisters improperly focuses on the pre-assessment

hearing in arguing that it did not receive due process of

law. Petition at 15-17. However, the constitutional anal-

ysis does not end at that point. When an alleged taking

without just compensation has occurred, constitutional

requirements are satisfied by a meaningful post-depriva-

tion review. Williamson County, 473 U.S. at 195, 105 S.Ct.

at 3121. As this Court stated:

[B]ecause the Constitution does not require pre-

taking compensation, and is instead satisfied by

a reasonable and adequate provision for obtain-

ing compensation after the taking, the [govern-

ment action] is not “complete” until the

[governmental entity] fails to provide adequate

compensation for the taking.

12

Id. at 195, 105 S.Ct. at 3121. In this case, Sisters had — and

successfully pursued — an adequate remedy in state court.

See Tex. Rev. Civ. Stat. Ann. art. 1105b; 868 S.W.2d at

844-46. Thus, Sisters’ complaints regarding the pre-

assessment hearings do not end the inquiry.

In thoroughly considering the constitutional suffi-

ciency of the process afforded by article 1105b, the court

of appeals noted that article 1105b has several procedural

safeguards. 868 S.W.2d at 845. Specifically, section 9 of

article 1105b incorporates the constitutional mandate that

special tax assessments must be limited to the amount of

benefit conferred on the property assessed, requires

notice and opportunity for hearing before any assessment

is levied, and gives the property owner the right to

withhold payment and contest the assessment in state

court. The prepayment challenge and right to judicial

review are in themselves sufficient to satisfy the Fifth and

Fourteenth Amendments. 868 S.W.2d at 845.

Because of the safeguards under article 1105b, any

alleged arbitrary assessment by the City does not auto-

matically constitute a federal constitutional injury. 868

S.W.2d at 843. In order to show a violation of its federal

constitutional rights, Sisters was required to show that

the remedies under article 1105b (the pre-assessment

hearings coupled with judicial review applying the sub-

stantial evidence rule) did not adequately preserve its

right to just compensation and due process of law,

thereby making necessary an action under Section 1983.

Sisters failed to meet this burden.

|

13

Further, Sisters unsuccessfully attempts to distin-

guish the cases relied upon by the court of appeals in its

opinion on rehearing. Petition at 17-19. First, Sisters

incorrectly contends that Williamson County and Federal

Deposit Ins. Corp. v. City of New Iberia, 921 F.2d 610 (5th

Cir. 1991), do not support the court of appeals’ holding

that an unconstitutional special assessment does not

automatically entitle a plaintiff to recover attorneys’ fees

under Section 1983. Petition at 17-19 (discussing Wil-

liamson County and City of New Iberia, 921 F.2d at 615).

Sisters misses the point in focusing on the “ripeness”

issue in Williamson County. Petition at 17-18.

As this Court explained in Williamson County, there

can be no federal constitutional violation (and thus no

claim under Section 1983) unless and until: (1) there is a

“taking”; and (2) just compensation for that taking has

been denied. Williamson County, 473 U.S. at 194-95, 105

S.Ct. at 3120-21. “The Fifth Amendment does not pro-

scribe the taking of property; it proscribes taking without

just compensation.” Id. at 194, 105 S.Ct. at 3120. Thus, a

“taking” does not in and of itself violate the Fifth Amend-

ment. Id. at 194 n.13; 105 S.Ct. at 3120 n.13. Likewise, the

finding of an unconstitutional tax assessment, standing

alone, does not automatically constitute an injury within

the Fifth or Fourteenth Amendment. The first inquiry is

whether the process provided under state law (here, the

procedural safeguards afforded under article 1105b) is

sufficient to satisfy due process concerns. The court of

appeals properly concluded that the procedures under

article 1105b are constitutionally sufficient.

14

Sisters’ discussion of City of New Iberia relates only to

whether the assessment ordinance was valid, an issue the

court of appeals determined in Sisters’ favor in its origi-

nal opinion and on rehearing. Petition at 18-19; 868

S.W.2d at 840-41. In any event, the Fifth Circuit’s recogni-

tion in City of New Iberia that “local tax assessments [do]

not contravene the Fourteenth Amendment unless they

amount[ ] to such an abuse to be an outright confiscation

of property” does support the court of appeals’ conclu-

sion that Sisters is not entitled to recover attorneys’ fees

simply because the ordinance was found to be invalid.

City of New Iberia, 921 F.2d at 615 (citations omitted). A

specialized assessment later declared invalid through

proceedings under article 1105b does not automatically

constitute a violation of the Fifth or Fourteenth Amend-

ment to support recovery of attorneys’ fees under Section

1988, and Sisters’ arguments to the contrary are without

merit.

The court of appeals also rejected as meritless Sisters’

argument that the imposition of the lien caused a diminu-

tion of economic value equal to the amount of the lien.

Petition at 19-20; 868 S.W.2d at 846. Although a tax

assessment that “immediately and drastically diminishes

the value of the [property owner’s] interest” may consti-

tute a “taking,” the record in this case contains no evi-

dence that the City’s lien rendered Sisters’ property

useless or caused a diminution in economic value. 868

S.W.2d at 846, citing Mennonite Bd. of Missions v. Adams,

462 U.S. 791, 798 103 S.Ct. 2706, 2711 (1983). Indeed,

Sisters took advantage of the judicial review procedures

in article 1105b and prevailed.

a

15

D. Because no federal constitutional violation

occurred, there is no basis for an award of

attorneys’ fees.

The City does not dispute that “[section 1983] is not

limited to suits for monetary damages.” Petition at 21.

However, as the court of appeals correctly noted, Sisters

did not seek compensation for the lien’s interference.

Rather, it only sought attorneys’ fees as a “prevailing

party” under Section 1983. 868 S.W.2d at 846-47. A party

is not a prevailing party under Section 1988 if he recovers

only on state law claims. See City of Waco v. Hester, 805

S.W.2d 807, 817 (Tex. App. - Waco 1990, writ denied)

(plaintiff did not prevail on § 1983 claim; judgment

reformed to delete recovery of attorneys’ fees). See also

Kelly v. City of Leesville, 897 F.2d 172, 177 (Sth Cir. 1990);

McDonald v. Doe, 748 F.2d 1055, 1057 (5th Cir. 1984) (party

must prevail on constitutional claims to recover under

Section 1988).

Sisters cites City of Riverside v. Rivera, 477 U.S. 561

(1986), in support of its argument that it is entitled to

recover attorneys’ fees. Petition at 23. In Rivera, however,

_the plaintiffs had prevailed in their civil rights action.

Consequently, the issue before this Court in Rivera was

the reasonableness of the attorneys’ fee award under

Section 1988. In contrast, the question in this case is

whether a party who prevails only on a state law claim can

nevertheless recover attorneys’ fees under the federal

civil rights statutes. As the authorities cited above hold,

and as the court of appeals properly held, attorneys’ fees

are not recoverable under the facts of this case.

-

16

Sisters did not meet its burden to show an uncon-

stitutional taking or deprivation of property without due

process of law and, therefore, is not a “prevailing party”

under Section 1983. As a result, Sisters is not entitled to

recover attorneys’ fees under Section 1988(b).

Sisters’ argument fails for another independent rea-

son. Section 1988 only authorizes courts to award attor-

neys’ fees “as part of the costs.” 42 U.S.C. § 1988. As a

result, “when a court denies costs, it must deny fees as

well; if there are no costs, there is nothing for the fees to

be awarded ‘as part of.’ ” See Farrar v. Hobby, 113 S.Ct.

566, 577 (1992) (O’Connor, J., concurring). The judgment

in this case orders that each party bear its own costs of

the appeal. Thus, even if Sisters has otherwise shown its

entitlement to attorneys’ fees, Sisters did not recover any

“costs” that attorneys’ fees could be awarded “as part

of.”

CONCLUSION

Sisters incorrectly asks this Court to issue a writ of

certiorari to the Supreme Court of Texas, and 28 U.S.C.

§ 1257 does not provide a jurisdictional basis for Sisters’

request. Even if Sisters had requested issuance of a writ

of certiorari to the proper court - the Dallas Court of

Appeals, which rendered the judgment Sisters complains

of — Sisters’ Petition for a Writ of Certiorari should be

denied because the court of appeals’ opinion and judg-

ment does not conflict with any decision of this Court or

any other court. Moreover, Sisters’ Petition presents no

issue of national importance. The ordinance at issue has

17

been declared invalid by the state courts of Texas and the

tax lien removed. Nevertheless, Sisters’ attorneys attempt

to invoke this Court’s jurisdiction for their own benefit,

even though attorneys’ fees are not recoverable under

article 1105b, and no federal constitutional violations

occurred to support an award of attorneys’ fees under 42

U.S.C. § 1988(b).

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

W. ALAN WRIGHT

Counsel of Record

Paut C. IsHAM

MICHELLE E. McCoy THomas L. ALLENSWORTH

Haynes AND Boone, L.L.P. City of GRAND Prairigc, TEXAS

3100 NationsBank Plaza Office of the City Attorney

901 Main Street P.O. Box 530011

Dallas, Texas 75202-3789 Grand Prairie, Texas 75053-0011

Telephone: (214) 651-5000 Telephone: (214) 660-8026

Telecopier: (214) 651-5940 Telecopier: (214) 263-1870

Counsel for Respondent

September 6, 1994