Opposition Brief — Williams v. City of Granite Shoals

FEB

No. 94-1200 Piola, Gc Ben MPR |

In The

Supreme Court of the United States

October Term, 1994

Petitioner,

SHOALS, TEXAS,

Respondent.

Petition For Writ of Certiorari

lo The Supreme Court of Texas

e

BRIEF IN OPPOSITION

,H EN

WS N H JEN

1409 West Sixth Street

Austin, Texas 78703

|

10} lelecopier)

ndent

BEST AVAILABLE COPY |

QUESTIONS PRESENTED

Does this Court have jurisdiction to entertain a peti-

tion for writ of certiorari seeking review of the denial of

an application for writ of error to the Texas Supreme

Court where Petitioner failed to present a federal ques-

tion for decision in the state courts and where the deci-

sion of the federal question was not necessary to the

determination of the cause?

Is Article 1, Section 10, clause 1 of the United States

Constitution implicated where a contract is construed so

that it is capable of performance and not void ab initio

under the settled law of the State of Texas?

Is Article I, Section 10, clause 1 of the United States

Constitution (the “contract clause”) implicated where no

legislation has been enacted after the date of formation of

a contract?

Is Article I, Section 10, clause 1 of the United States

Constitution (the “contract clause”) implicated where the

contract is impaired not by the result of legislation

enacted after its formation but by judicial interpretation

of the terms of the employment contract to make it possi-

ble of performance?

LIST OF PARTIES

PETITIONER:

Herman Williams

COUNSEL FOR PETITIONER:

Margaret D. Kennedy, Esq.

312 West 12th Street

Suite 307

Austin, Texas 78701

(512) 480-8300

RESPONDENT:

The City of Granite Shoals, Texas

COUNSEL FOR RESPONDENT:

Diane C. Van Helden

BARISH & VAN HELDEN

1409 West Sixth Street

Austin, Texas 78703

(512) 477-9058

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ye eee eee Tee i

i Sic ws kas ck Se evs ovis bed yee seven ii

a ey os rr iii

pe 86 5 |. Vv

nos 5 goddess dane tccersesesess 1

Ge GE Ae ae 2

SIE, OP” RES SA es cece eae 2

REASONS TO DENY THE PETITION.............. 3

I. The Court is without jurisdiction to entertain

the petition for Writ of Certiorari as the -Peti-

tioner wholly failed to raise a federal question

in the courts below and the Texas Supreme

Court did not render a judgment or decree in

which the issue of whether the lower court's

construction of a contract violated the contract

clause, Article I, Section 10, clause 1 of the

Ueseea Sestes Constitution .................... 3

A. Williams has not shown and cannot show a

timely, properly raised federal question... 3

B. Williams has not shown and cannot show

that a federal question was adjudicated

below as the decision of the Texas Supreme

Court rested solely on state law .......... 4

iV

TABLE OF CONTENTS -— Continued

Page

II. Article I, Section 10, clause 1’s prohibition on a

State’s passing of laws which impair the obligation

of contracts is not implicated in this case in that the

Texas courts’ construction of William’s employ-

ment contract with the City of Granite Shoals made

the contract possible of performance instead of

void as violating public policy.................. 6

III. Article I, Section 10, clause 1 of the United States

Constitution (the “contract clause”) is not impli-

cated where no legislation has been enacted after

the date of formation of a contract ............. 7

IV. Article I, Section 10, clause 1 of the United States

Constitution (the “contract clause”) is not impli-

cated where the contract is impaired not as a

result of legislation but by judicial interpretation

of the terms of the employment contract to make

it possible of performance .................... 7

ew | eee ere re er epee ree rr 9

Vv

TABLE OF AUTHORITIES

Page

CASES

City of Dallas v. Moreau, 718 S.W.2d 776 (Tex. App.

— Corpus Christi 1986, writ ref’d n.re.)....-----+-- 6

Clear Lake City Water Authority v. Clear Lake Utils.

Co., 549 S.W.2d 385 (Tex. 1977) ...------csereeeeees 5

Cronen v. Nix, 611 $.W.2d 651 (Tex. Civ. App. -

Houston [1st Dist.] 1980, writ oe 5 ee 6

Higginbotham v. City of Baton Rouge, La., 306 U.S.

BOG AEN xs cx cicackeacssa ses ntast Ch eemres kets 9: 6

Home Building & Loan Assn. v. Blaisdell, 290 U.S.

Cee re ec ee Co oe ide 8

Honeyman v. Hanan, 300 U.S. 14 (1937) ..... eee ee eee 4

New Orleans Waterworks Company v. Louisiana

Sugar Refining Company, 125 U.S. 18 (1887)....----- 7

Trustees of Dartmouth College v. Woodward, 4 U.S. (4

Wheat. 518) 461 (1819).....---0:ee cere eee t rere 8

United States Trust Co. of New York v. New Jersey,

A ae Gs. gs ee eee ee he 8

UNiteD STATES CONSTITUTION

Article I, Section 10, clause 1..--.----+++++s000: 3, 6, 7

Unitep STATES STATUTES

Me CGC A.B OURE. ove cence secs ereresnenes 2; 3, %

RULES

U.S. Supreme Court Rules

BD MR aca c essen nce enenan asso edhe es an ees 3

ee

No. 94-1200

+

In The

Supreme Court of the United States

October Term, 1994

°

HERMAN WILLIAMS,

Petitioner,

V.

THE CITY OF GRANITE SHOALS, TEXAS,

Respondent.

+

Petition For Writ of Certiorari

To The Supreme Court of Texas

¢

BRIEF IN OPPOSITION

+

Respondent respectfully requests that this Court deny

the Petition for Writ of Certiorari to review the denial of

Petitioner’s Application for Writ of Error to the Supreme

Court of Texas of the judgment rendered on March 2, 1994,

by the Court of Appeals for the Third District of Texas.

*

OPINIONS BELOW

Respondent relies upon Petitioner’s recitation of the

opinions below.

JURISDICTION

This Court lacks jurisdiction under 28 U.S.C.A. § 1257

(West 1993) as asserted by Petitioner. Neither the Texas

Supreme Court nor the Court of Appeals for the Third

District of Texas were presented a federal question for

review and their decisions are based exclusively on set-

tled Texas law regarding the construction of contracts.

¢

STATEMENT OF THE CASE

Petitioner accurately recites the proceedings in the

Texas courts. Respondent supplements Petitioner’s State-

ment of the Case only to point out that no federal ques-

tion was presented at any stage of the proceedings and

was not determinative of the case below.

Petitioner’s suit went to trial on his Second Amended

Original Petition. Therein, he presents only state common

law and Texas Constitutional claims. Only petitioner’s

breach of contract claim was submitted to the jury, his

other claims having been decided adversely to him in

earlier rulings.

Respondent appealed the denial of its Motion for

Judgment Non Obstante Veredicto to the Texas Court of

Appeals, and the only matter raised by Cross-Appeal was

Petitioner’s objection to the trial court’s refusal to submit

to the jury his requested questions concerning his Texas

Constitutional claim. App. 1-3. No mention of a federal -

contract clause argument is made in Petitioner’s Motion

for Rehearing. App. 4-6.

On application for writ of error to the Texas Supreme

Court and in his Motion for Rehearing therein, Petitioner

relied exclusively on state law arguments. App. 7-9. The

first mention of Article I, Section 10, clause 1 of the

United States Constitution comes in William’s Petition for

Writ of Certiorari in this Court.

+

REASONS TO DENY THE PETITION

Be

The Court is without jurisdiction to entertain the Peti-

tion for Writ of Certiorari as the Petitioner wholly failed

to raise a federal question in the courts below and the

Texas Supreme Court did not render a judgment or

decree in which the issue of whether the lower court's

construction of a contract for employment violated the

contract clause, Article I, Section 10, clause 1 of the -

United States Constitution.

This Court lacks jurisdiction under 28 U.S.C.A.

§ 1257, because the Texas Supreme Court did not consider

the federal question of whether the construction given

Petitioner’s employment contract violated the prohibition

that States may not pass laws which impair the obligation

of contracts. The issue was never before the Texas courts

which considered Petitioner’s case.

A. Williams has not shown and cannot show a

timely, properly raised federal question.

Rule 14.1(h) of the Supreme Court Rules requires that

a federal question be “timely and properly raised so as to

give this Court jurisdiction to review the judgment on a

”

writ of certiorari.” Williams does not specify or even

mention in his Petition at what stage of the proceedings

in the Texas courts he raised his contracts clause argu-

ment. Nor does he suggest how these courts passed on

this argument or point the Court to the specific parts of

the record in which his argument is brought to the atten-

tion of the Texas courts. The reason he does not is that the

issue is first raised in his Petition for Writ of Certiorari.

Section 1257 jurisdiction is dependent on an affirma-

tive showing from the record that a federal question was

“presented for decision to the highest state court having

jurisdiction” and that that Court’s decision of the federal

question was “necessary to the determination” of the

case. Honeyman v. Hanan, 300 U.S. 14, 18 (1937). Neither

requirement is met by Petitioner who relies on the asser-

tion that this Court has “jurisdiction to review the judg-

ment of the Supreme Court of the State of Texas pursuant

to 28 U.S.C. § 1257” regardless of whether the federal

question was raised or was determinative of the outcome

of the case. Petition, p. 1.

Having failed to raise the federal question in the

Texas Supreme Court which he now seeks to have this

Court determine, Williams’ Petition should be dismissed

for want of jurisdiction.

B. Williams has not shown and cannot show that a

federal question was adjudicated below as the

decision of the Texas Supreme Court rested

solely on state law.

The Third Court of Appeals sets out the basis for its

reversal of the trial court’s judgment for Petitioner at

pages 6-10 of its opinion (Appendix B to Petition).

Because a construction of Williams’ contract to require

“cause” for its termination “formed an impermissible

restraint on the city council’s governmental functions” (p.

10), the construction urged by Petitioner would render

the contract void ab initio. A Texas governmental body

retains exclusive control over governmental functions

and any effort to contract them away is unconstitutional

and void. Clear Lake City Water Authority v. Clear Lake

Utils. Co., 549 S.W.2d 385, 391 (Tex. 1977).

The Court of Appeais does not address any federal

question, because it was not presented with any. Brief in

Opposition, App. 1-9. Its reversal of the trial court judg-

ment rests exclusively on Texas law. Petitioner did not

raise the contracts clause argument before the Texas

Supreme Court (see Brief in Opposition, Appendices D

and E), and the Supreme Court’s denial of Petitioner’s

Application for Writ of Error by implication can only be

based on Texas law. In fact the construction of Peti-

tioner’s employment contract, to give it effect rather than

to void it, suggests that there has been no impairment of

the contract.

Il.

Article I, Section 10, clause 1’s prohibition on a State’s

passing of laws which impair the obligation of contracts

is not implicated in this case in that the Texas courts’

construction of William’s employment contract with the

City of Granite Shoals made the contract possible of

performance instead of void as violating public policy.

For the reasons stated in Section I, B. supra, Peti-

tioner’s contract has not been impaired but instead has

been given effect and made possible of performance by

the Texas courts. It should be further noted that a govern-

mental entity created by the state has the power, within

the constraints of the State Constitution, to create or

abolish public offices, as well as to change the duties of

such offices and shorten or lengthen the terms of office

where the performance of governmental functions is con-

cerned. Texas law provides that both the hiring and the

firing of city employees is a governmental function, City

of Dallas v. Moreau, 718 S.W.2d 776, 779 (Tex. App. -

Corpus Christi 1986, writ ref’d n.r.e.), as well as is the

operation of a police department, Cronen v. Nix, 611

S.W.2d 651, 653 (Tex. Civ. App. — Houston [1st Dist.] 1980,

writ ref’d n.r.e.). This fundamental authority of govern-

mental entities has long been recognized by this Court

despite challenges based on the contract clause contained

in Article I of the United States Constitution. Higgin-

botham v. City of Baton Rouge, La., 306 U.S. 535, 539 (1939).

Il.

Article I, Section 10, clause 1 of the United States Con-

stitution (the “contract clause”) is not implicated where

no legislation has been enacted after the date of forma-

tion of a contract.

IV.

Article I, Section 10, clause 1 of the United States Con-

stitution (the “contract clause”) is not implicated where

the contract is impaired not as a result of legislation but

by judicial interpretation of the terms of the employ-

ment contract to make it possible of performance.

The facts of this case show that Petitioner does not

suggest that any legislation was enacted after the forma-

tion of his employment contract with the City of Granite

Shoals. Rather, Petitioner suggests that the construction

of his contract to give it effect and to make it possible of

performance under settled Texas law somehow violates

the contract clause. Petitioner has presented the following

question to this Court: “Whether the laws of Texas, as

interpreted by the state courts, violate Article I, Section 10

of the United States Constitution.”

In dismissing for want of jurisdiction the Petition in

New Orleans Waterworks Company v. Louisiana Sugar Refin-

ing Company, 125 U.S. 18 (1887), this Court recognized

that there is no jurisdiction where a contract clause

impairment is suggested unless a contract has been

impaired by a law of a State, as opposed to” . . . the

decisions of its courts, or the acts of its administrative or

executive boards or officers, or the doings of corporations

or individuals.” Id. at 30. Petitioner’s complaint relates

exclusively to the construction of the Texas courts which

gave effect to his employment contract by construing it

not to require “cause” for termination. His complaint is

not that any legislation was enacted following formation

of the contract, but is rather with the construction

accorded by the courts of Texas to give the contract effect.

This Court has recognized that one legislative body

cannot by contract limit the powers of a successor legisla-

tive body or enter into contracts which “bargain away”

the police powers of a State. United States Trust Co. of New

York v. New Jersey, 431 U.S. 1, 23 (1977). Further, it recog-

nizes that laws in existence at the time a contract is

entered into are read into the contract as are the “essen-

tial attributes of sovereign power”. Home Building & Loan

Assn. v. Blaisdell, 290 U.S. 398, 435 (1934). The holding of

the Texas Court of Appeals for the Third District

acknowledges no more and no less. The governmental

function at issue in this case is clearly one of the reserved

powers of the State, being a governmental function. Peti-

tioner’s reliance on this Court’s holding in United States

Trust Co. of New York v. New Jersey, supra, is misplaced.

There is no similarity in the factual circumstances of this

case to that of the Trustees of Dartmouth College v. Wood-

ward, 4 U.S. (4 Wheat. 518) 461 (1819) which involved

legislation enacted subsequent to the grant of a charter

which legislation materially altered the charter.

Petitioner does not complain of any law enacted by

The City of Granite Shoals or any other legislative body

~ which impaired his contract. Without such, the contract

clause is not implicated, and no jurisdiction exists to

review the decision of the Texas Supreme Court in deny-

ing Petitioner’s Application for Writ of Error from the

Third Court of Appeals’ holding reversing the judgment

of the trial court in this case.

¢

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the Petition for Writ of Certiorari should be denied.

Respectfully submitted,

Diane C. VAN HELDEN

BarisH & VAN HELDEN

Attorneys at Law

1409 West Sixth Street

Austin, Texas 78703

(512) 477-9058

(512) 477-9061 (telecopier)

Attorneys For Respondent

The City of Granite Shoals,

Texas

App. 1

NO. 03-93-00263-CV

IN THE

COURT OF APPEALS

FOR THE

THIRD SUPREME JiJDICIAL DISTRICT OF TEXAS

AT AUSTIN

THE CITY OF GRANITE SHOALS,

Appellant

V3.

HERMAN WILLIAMS,

Appellee

BRIEF FOR APPELLEE

TO THE HONORABLE JUSTICES OF THE COURT OF

APPEALS:

COMES NOW, Herman Williams, Appellee, and

would show the Court the following:

I.

NATURE OF THE CASE

This is a suit for breach of a ten year employment

contract. Plaintiff pled other claims as well. Motion for

Summary Judgment by Defendant was granted as to the

action for liable [sic] against the city and two of the three

App. 2

individual Defendants and as to wrongful reprisal for a

justified workers compensation claim. There was no dis-

missal of Plaintiff’s claims for violation of due process

against all Defendants’[sic], and the action of the trial

court in refusing to submit issues on “due course of the

law of the land” which Plaintiff tendered in substantially

correct form is presented to this court in the form of a

cross-point.

APPELLEE’S COUNTER-POINTS OF ERROR

COUNTER-POINT OF ERROR NO. 1

THE TRIAL COURT CORRECTLY DENIED

DEFENDANT'S MOTION FOR JUDGMENT NON

OBSTANTE VEREDICTO BECAUSE ORDINANCE 35

ITSELF WAS INVALID, AND IN THE ALTERNATIVE

DID NOT APPLY TO THE CONTRACT IN

QUESTION.

(SF 391-392, 103-104, 118-122, 124-125, 156, 195-196)

COUNTER-POINT OF ERROR NO. 2

THE TRIAL COURT CORRECTLY FOUND THE

EMPLOYMENT CONTRACT IS AMBIGUOUS.

(SF 96, 99, 115, 272, 380, 383, 384, 469, DX 2, PX 6, PX

10, PX 15)

COUNTER-POINT OF ERROR NO. 3

THE TRIAL COURT CORRECTLY ENTERED

JUDGMENT ON THE JURY VERDICT AND DENIED

DEFENDANT’S MOTION FOR JUDGMENT NON

OBSTANTE VEREDICTO BECAUSE TESTIMONY OF

App. 3

THE CITY ATTORNEY AND MAYOR AT THE TIME

THE CONTRACT WAS ENTERED INTO

ESTABLISHED CIRCUMSTANCES AROUND

ENTERING THE CONTRACT

(PX 4, PX 6, PX 10; DX 5)

COUNTER-POINT OF ERROR NO. 4

THE TRIAL COURT CORRECTLY SUBMITTED THE

ISSUE OF DAMAGES AND IN THE ALTERNATIVE

ANY ERROR WAS HARMLESS BECAUSE ELEMENTS

IN MITIGATION WERE INCLUDED IN THE FIGURES

RETURNED BY THE JURY.

(SF 424-429)

COUNTER-POINT OF ERROR NO. 5

THE TRIAL COURT CORRECTLY ENTERED

JUDGMENT ON THE JURY VERDICT AND DENIED

DEFENDANT’S MOTION FOR JUDGMENT NON

OBSTANTE VEREDICTO BECAUSE THERE WAS A

MERE SCINTILLA OF CREDIBLE EVIDENCE THAT

CAUSE EXISTED FOR THE TERMINATION OF THE

CONTRACT.

(SF 375-376, 503-504, 514-517; DX 8)

CROSS-POINT OF ERROR NO. 1

THE TRIAL COURT ERRORED IN REFUSING TO

SUBMIT ISSUES REGARDING VIOLATION OF

j

App. 4

PLAINTIFF’S RIGHTS TO DUE COURSE OF THE

LAW OF THE LAND UNDER THE TEXAS

CONSTITUTION BECAUSE MORE THAN A

SCINTILLA OF EVIDENCE WAS PRESENTED

REGARDING SUCH VIOLATION.

(SF 498-499; PX 10)

App. 5

NO. 3-93-263-CV

IN THE

COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

AT AUSTIN

THE CITY OF GRANITE SHOALS,

Appellant

VS.

HERMAN WILLIAMS,

Appellee

MOTION FOR REHEARING

Margaret D. Kennedy

State Bar No. 11294400

316 W. 12th, Suite 307

Austin, Texas 78701

512/482-8300

Fax No. 512/482-8302

ATTORNEY FOR APPELLEE

Dated: March 14, 1994

App. 6

TABLE OF CONTENTS

Wiomens GE 0) Demee 5 we wel tka eee bees

Bouchet we PARR 5 gcc kc os kv ck os va basi dws wenden

Preliminary Statement ........ PORE EE TOL ee LTE

Points of Error on Rehearing ................66.05:

peer eee ee eer TeeN eee Tee Te Te Tee ee Te

POINT OF ERROR NO. 1

THIS COURT ERRED IN FINDING THAT THE

TRIAL COURT SHOULD HAVE RENDERED A

pale es gS tk At re yr En eyo. Smee

A.

This court’s holding that a city council cannot

make a binding contract regarding a govern-

mental function binding succeeding councils

fails to consider the rule of law adopted by the

Supreme Court in City of San Antonio case...

This court’s finding that the contract in ques-

tion purports to convey away the govern-

mental powers of the city overlooks the powers

retained by the city in the contract itself.....

The conclusion of this court that finds that the

contract was terminable at will uses rationale

from cases which were for an indefinite time as

opposed to this one with a definite ending date

‘$2 GES ee CGO 6 Ce ©. 6 CEE OC RO Oe o8 eS ee ew eS SE) 4S Se Ew Ce ES

POINT OF ERROR NO. 2

THE COURT ERRED IN FINDING THERE WAS

NO DUE PROCESS VIOLATION IN MR. WIL-

RY Me i Fy? I

A.

This court’s holding that Granite Shoals Police

Department Policy Manual Section 3.04.007

does not apply to Herman Williams overlooks

Sections 1.00 and 3.03.002 which do clearly

apply to all department personneil...........

App. 7

This court’s attention to the vote to terminate

was directed by Appellant’s brief on Page 4;

hense [sic], this court should have knowledge

from the record that § 22.077(b)’s requirement

(of a 2/3 vote if notice is not given) was not

Perr errr Terre ry rer rr ayy eter eee ee

Since Herman Williams did have a contract of

some type, he did have a property interest in

his employment and a right to expect that sec-

tions of the Police Department Policy Manual

which did apply to him would be used......

IN THE

SUPREME COURT OF TEXAS

HERMAN WILLIAMS

Petitioner

v.

THE CITY OF GRANITE SHOALS

Respondent

APPLICATION FOR WRIT OF ERROR

KENNEDY & ASSOCIATE

Margaret D. Kennedy

316 W. 12th Street, Suite 307

Austin, Texas 78701

(512)482-8302

Fax No. (512)482-8302

TO THE SUPREME COURT OF TEXAS:

NAMES OF ALL PARTIES

PETITIONER: Herman Williams, represented by Mar-

garet D. Kennedy of Kennedy & Associate, 316 W. 12th

Street, Suite 307, Austin, Texas 78701. Herman Williams

was Plaintiff and Appellee.

RESPONDENT: The City of Granite Shoals, repre-

sented by Diane C. Van Helden of Barish & Van Helden,

1409 West Sixth Street, Austin, Texas 78703. The City of

Granite Shoals was Defendant and Appellant.

:

App. 9

TABLE OF CONTENTS

NAMES OF ALL PARTIES......................... i

INDEX OF AUTHORITIES......................... iv

STATEMENT OF THE CASE....................... 1

STATEMENT OF JURISDICTION................... 1

si en, Se K

STATEMENT OF FACTS........................ 3

SUMMARY OF THE ARGUMENT ................. 2

ih hs neg SEROTEC Cee 6

I. The court of appeals erred in finding that the

trial court should have rendered a judgment

PONTE CREELERG AER RANE Yh VE Clin 4g aa cok 5. 6

A. A municipal corporation may contract

away its governmental functions for a rea-

sonable time, so long as it does not restrict

the free exercise of its governmental

duis ELE CEE eT eee ¥

B. The City did not contract away the free

exercise of its governmental powers ..... 8

C. The court of appeals opinion goes beyond

the holding of this and other courts, and

places an unfair burden on all munici-

“on creel EEE ee OT Gh eee 13

II. The court of appeals erred in finding that there

was no due process violation in Williams’ ter-

a pia PER ETT T TT ee es 14

App. 10

A. The Granite Shoals Police Department Pol-

icy Manual Section 3.04.007 applied to all

department personnel, including Williams.. 15

B. Williams’ termination violated section

22.077(b) of the Texas Local Government

Code and the court of appeals was pointed

to the section of the statement of facts

errr rrr rrr 17

C. Any notice of hearing Williams received

was insufficient for due process purposes... 19

CR NE cas snap kbs sentenne ewer eee 20

PUPAE WEP REE oooh docs cncuccssavtunesuemen 21

eee tee GF SUN IRS 6.606 cau duerevescaeaees 21

lg gt» SE amare Soe a a eRe ens rca Seen 22

:

: