Opposition Brief — ZYZY, Inc. v. City of Eagle Pass

a Supreme Court, US.

PEL ED

No. 97-540

- OCT 27 1997

In The CLERK

Supreme Court of the United States

October Term, 1997

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ZYZY, INC., and ZYZY, INC., d/b/a GUIDE

PUBLISHING CO.; and REX S. MCBEATH,

Petitioners,

CITY OF EAGLE PASS, TEXAS; RAUL TREVINO,

Individually; JOSE MORA, Individually; JOSE

FRANCISCO FARIAS, Indiv idually; RAUL TREVINO,

JOSE MORA, and JOSE FRANCISCO FARIAS, In Their

Official Capacities,

Respondents.

+

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

*

BRIEF IN OPPOSITION

-- .

Marc A. Hamitton, Esa.

482 Kings Road

Yardley, PA 19067

(215) 493-1973

(215) 493-1094 (facsimile)

Counsel of Record

Ricarpo J. Navarro

Denton, McKamizt & NAVARRO

A PROFESSIONAL CORPORATION

1700 Tower Life Building

310 S. St. Mary’s Street

San Antonio, TX 78205-3111

(210) 227-3243

(210) 225-4481 (facsimile)

Attorneys for Respondents

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether there is a circuit split on the standard of

review to be applied to jury instruction error in cases

implicating constitutional rights?

TABLE OF CONTENTS

Page

CREPE DAES FIORE 6 6s sk ccecosncesnncascndawes i |

SR OE FCN bb ccc cccenccsventsnsesces iv |

Ce ED SRNOD 6 00-06 5 souutis doses cuaeeueseneee 1

i re Pe hon 1

SEACmeemees OF THE CASE . 205. ccc ccccccsccscces 1

Fe PFE Pe oes Panne 4

A. There Is No Circuit Split on the Standard of

Review to Be Applied to Jury Instruction Error in

Cases Implicating Constitutional Rights ........ 5

1. The “Likely to Mislead” Standard...... 6

2. The “Substantial and Ineradicable

CRMe TS 6s hkene ce h5boRercaees 9

came Caer © OG 66 cscticiesienssdeenee 10

C. There Is No Important Federal Question Raised by

the Court of Appeals’ Finding that It Had No

“Substantial and Ineradicable Doubt that the Jury

Was Properly Guided in Its Deliberations” ...... 11

CAC ND 5 05 6 os banenhseee heed 12

APPENDIX

Eagle Pass, Tex., Ordinance

st ECC COT OP ee! Resp. App. 1

Minutes of City Counsel Special Meeting, Aug.

ey Re aa sks ct00 ee dened Resp. App. 5

Eagle Pass, Tex., Ordinance

PO CIPO ects sscntnsdeewaseeiannaeeee Resp. App. 8

——77E

ili

TABLE OF CONTENTS - Continued

Page

Letter from the City Setting Forth the Schedule

for Publishing Public Notices Between The

News Guide and The News Gram..... Resp. App. 11

Letter to Mr. Ruben C. Mazuka of The News

Gram from the City, Jan. 14, 1997...... Resp. App. 13

Letter to Mr. Rex McBeath of The News Guide

from the City, Jan. 14 1997 ............ Resp. App. 14

iv

TABLE OF AUTHORITIES

Page

CASEs:

Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994)...... 6, 8

Arizonans for Official English v. Arizona, 117 S. Ct.

A rn. ear ey rer et i ae Ned a 10

Ayoub v. Spencer, 550 F.2d 164 (3d Cir.), cert. denied,

ete EO. ee re eee ee reer errr re 7

Bennis v. Gable, 823 F.2d 723 (3d Cir. 1987)........... 8

Binks Mfg. v. National Presto Indus. Inc., 709 F.2d

eo te ee eer rr eT eee 7

Bradshaw v. Freightliner Corp., 937 F.2d 197 (Sth Cir.

| Ree nee Sere or en ee ey ee 7

Bueno v. City of Donna, 714 F.2d 484 (5th Cir. 1983) ..... 6

Cincinnati Fluid Power, Inc. v. Rexnord, Inc., 797

Pe Re ee a I kv hae ok sd keke Nawacnena ese 7

Clarksville-Montgomery County Sch. Sys. v. United

States Gypsum Co., 925 F.2d 993 (6th Cir. 1991)..... 7

Davis v. Ector County, Texas, 40 F.3d 777 (5th Cir.

ROS 3.54 a head kos eet be cen ed eeteae ne ee 5, 6, 8, 10

Doe v. Burnham, 6 F.3d 476 (7th Cir. 1993).......... 6, 8

Federal Deposit Ins. Corp. v. Mijalis, 15 F.3d 1314

SE NEES nk cdV ua vceekcahawii dub Wanna sence, 7

First Dakota Nat'l Bank v. St. Paul Fire & Marine Ins.

eee fe et | Perey eee Tee eereeee 10

Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996)..... 7, 8

Houston v. Herring, 562 F.2d 347 (5th Cir. 1977)....... 7

ena

¥

TABLE OF AUTHORITIES —- Continued

Page

Innes v. Howell Corp., 76 F.3d 702 (6th Cir. 1992)...... 6

Luciano v. Olsten Corp., 110 F.3d 210 (2d Cir. 1997)..... 7

Mark Seitman & Assoc., Inc. v. R.J. Reynolds Tobacco

Co., 837 F.2d 1527 (11th Cir. 1966) ............0055. 8

Masson v. New Yorker Magazine, Inc., 85 F.3d 1394

‘i a? * eee errr er rere rer rere 6, 8

Miller v. Utica Mill Speciality Mach. Co., 731 F.2d

. eof ee, | rr rere rrr eee 7,8

Morro v. City of Birmingham, 117 F.3d 508 (11th Cir.

5 See Pam APE rT er ee erry Petr Te 7, 8

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

SE, Se NEE on cc ccnccdecusucravennedeeehewnies 3

National Union Fire Ins. Co. v. Cagle, 68 F.3d 905

CU Ce, Finan in dks pck eevee cavers dee enn se 7

North Miss. Communications, Inc. v. Jones, 874 F.2d

1064 GGth Cie, TOG9). ...... nce ne cneccctcenseseswesss 3

Petes v. Hayes, 664 F.2d 523 (5th Cir. 1981) .........-. 7

Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987),

cert. denied, City of Fayetteville, N.C. v. Spell, 484

CT FT CI avn bonnet eco ans ends cans seer ens 7

Stoneking v. United States, 232 F.2d 385 (8th Cir.),

cert. denied, 352 U.S. 835 (1956), and cert. denied,

SHG TIS. GEE CRG son n cece ta snk cccerencanensesesss 7

Tatro v. Kervin, 41 F.3d 9 (1st Cir. 1994)............ 6, 8

Teague v. Lane, 489 U.S. 288 (1989) ......--.----- sees. 8

United States v. Easley, 942 F.2d 405 (6th Cir. 1991)..... 6

vi

TABLE OF AUTHORITIES - Continued

Page

United States v. Fleschner, 98 F.3d 155 (4th Cir.

1996), cert. denied, Clarkson v. United States, 117

ee, Se Lk Sea chine GuNaceeweeauuivcedvuesd 8

United States v. Johnstone, 107 F.3d 200 (3d Cir.

BSR ES Pert ee eo Peer er ery er eee ree ee 6

United States v. Pace, 10 F.3d 1106 (5th Cir. 1993),

cert. denied, 511 U.S. 1149 (1994) ................... 6

United States v. Smith, 13 F.3d 1421 (10th Cir.), cert.

Gn We CIS 4-0 6 « wea we che SK akkeween 7

United States v. Starke, 62 F.3d 1374 (11th Cir. 1995)..... 8

United States v. Tagalicud, 84 F.3d 1180 (9th Cir.

vie one wa enne tid een eee eee anex ees 7

United States v. Washington, 106 F.3d 983 (D.C. Cir.

ids ange aud os da ae nae ee ke ee ne 8

Verbraeken v. Westinghouse Elec. Corp., 881 F.2d

1041 (11th Cir. 1989), cert. dismissed, 493 U.S.

Te TT e ee ee eee 10

Westborough Mall, Inc. v. City of Cape Girardeau, 794

F.2d 330 (8th Cir. 1986), cert. denied, 480 U.S. 918

SED cine ehesi vice CennsSen bees 68 enna wun’ 6, 7, 8, 10

Woodall v. City of El Paso, 950 F.2d 255 (5th Cir.),

Cort. Gente, Bb US. FEB TAGGED osc ccc cnccctesccucses 6

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

ee nd weno ne bd wees renee st eens absense 4s 8

STATUTES AND RULEs:

A oe Be ee er ere 1

UY SARI IE By oon s-9 0 05h 5 0th sn nessun ncences 10

Tex. Gov’t Code Ann. § 2051.044 (West 1997)......... 1

Tex. Local Gov’t Ann. § 52.001 (West 1997)........... 2

Vil

TABLE OF AUTHORITIES — Continued

Page

Tex. Local Gov’t Ann. § 52.004 (West 1997)........... 2

Eagle Pass, Tex., Ordinance No. 93-12.......... 2, 4, 11

Eagle Pass, Tex., Ordinance No. 96-16................ 4

OPINION BELOW

The summary order of the court of appeals is submit-

ted in the Petitioners’ appendix “A.” Pet. App. at A-1 -

A-7. The order is not officially reported.

=

JURISDICTION

The order of the court of appeals was entered on June

27, 1997. The petition for a writ of certiorari was filed on

September 25, 1997. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1) (1994).

4

STATEMENT OF THE CASE

For thirty years, The News Guide (“The Guide”) was

the only newspaper in Eagle Pass, Texas that satisfied the

requirements under state law to carry public and legal

notices for the City. See Tex. Gov’t Code Ann. § 2051.044

(West 1997). Thus, The Guide was the only newspaper

that carried the City’s public notices. The Guide existed

in this competition-free marketplace for many years. The

market for public and legal notices and other city adver-

tising became more competitive in 1991 when The News

Gram (“The Gram”) requested the City’s advertising

business. Def.’s Trial Ex. 6A. In 1993, the city attorney

rendered a legal opinion that The Gram was legally quali-

fied under state law to carry public and legal notices and

other advertising. Def’s Trial Ex. 61. In 1994, the City was

notified by the Texas Press Association that The Gram

qualified under state law to carry such notices. Def.’s

Trial Ex. 12B. By 1993, The Gram started to get a small

portion of the City’s business from time to time. The City

was then faced with the dilemma of how to choose

between the two newspapers for the bulk of its business.

Upon the advice of its city attorney that it was

required to do so, on June 28, 1993, the City adopted

Ordinance No. 93-12, which set in place a competitive

bidding process for its public notice business. See Resp.

App. at 1-3. Although state law did not require such a

procedure for home rule cities, like Eagle Pass, but rather

only for a certain type of general-law city, see Tex. Local

Gov’t Ann. §§ 52.001, 52.004 (West 1997), neither state nor

federal law prohibited such a procedure for Eagle Pass.

See Resp. App. at 5-7.

Pursuant to Ordinance 93-12, the City held a compet-

itive bid for its public notice business in September of

1994. The Gram submitted the lower bid. As a result, the

City committed all of its legal and public notice business

to The Gram for the 1994-95 fiscal year. Def’s Trial Ex. 7B.

The Guide subsequently filed this lawsuit in Decem-

ber 1994 to recapture the City’s business. The Guide

claimed that the City switched its legal public notice

business in retaliation for The Guide’s negative editorials

regarding city officials who voted on the competitive

bids. After an intensive, one-week trial, a great deal of

testimony on both sides, and the entry of numerous,

voluminous documentary exhibits into evidence, the jury

found in favor of the City. Pet. App. at A-3.

Before sending the case to the jury, the trial court

determined that the case was appropriately treated as a

case implicating First Amendment rights and that the par-

ties’ relative burdens were governed by Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), which dealt

with the retaliatory dismissal of public employees, and North

Miss. Communications, Inc. v. Jones, 874 F.2d 1064 (5th Cir.

1989), which applied the Mt. Healthy standard to the with-

holding of public patronage by a government entity in retal-

iation for critical media coverage of the government entity’s

conduct.

There is no dispute that the general charge to the jury in

this case was correct under the Mt. Healthy burden-shifting

standard. Pet. App. at A-4. In the general charge, the district

court instructed the jury appropriately on the relative bur-

dens of the parties, Pet. App. at A-12 - A-17, and directed

the jury to consider the jury instructions as a whole: “It is

your duty as jurors to follow the law as I shall state it to you,

and to apply that law to the facts as you find them from the

evidence in the case. You are not to single out one instruction

alone as stating the law, but must consider the instructions as

a whole.” Pet. App. at A-8.

Although the court of appeals found that the Mt. Healthy

test was stated correctly in the general charge to the jury, the

parties, under a great deal of time pressure, agreed to last-

minute changes in the jury questions, which then misstated

the Mt. Healthy test. Pet. App. at A-26 — A-28.

In an unpublished per curiam opinion, the court of

appeals upheld the jury’s verdict, stating that the instruc-

tions, taken as a whole, “correctly convey the law.” Pet.

App. at A-4. The court reasoned: “The jury was instructed

to ‘keep in mind’ the jury instructions while answering

th[e jury] questions. The jury instructions properly set

forth the Mt. Healthy test. While we agree with the plain-

tiffs that the jury questions themselves do not accurately

state the law, the jury instructions properly set forth the

applicable test and, when read together, correctly convey

the law.” Pet. App. at A-4.

Having learned that its competitive bidding process

was not required by state law and having endured this

lawsuit in the wake of its first attempt to employ a

competitive bidding process, the City decided on August

26, 1996 to repeal Ordinance 93-12. See Eagle Pass, Tex.,

Ordinance No. 96-16; Resp. App. at 8-10. In its place, the

City has decided to alternate between The Guide and The

Gram on a semi-annual basis. Resp. App. at 11. Both The

Guide and The Gram were notified of the new policy by

letter dated January 14, 1997. Resp. App. at 13, 14. Under

the new plan, the Guide carried the City’s public notices

from January 15, 1997 through July 14, 1997. The Gram

commenced carrying notices on July 15, 1997 and will

carry them until January 14, 1998. Resp. App. at 11. The

City has pledged to “make every effort to distribute all of

its other advertising equally amongst all the News

Media” and has decided not to designate “any print

media as the City’s official newspaper.” Resp. App. at 11.

o--

ARGUMENT

This case involves no circuit split and no important

federal question requiring this Court's attention.

A. There Is No Circuit Split on the Standard of Review

to Be Applied to Jury Instruction Error in Cases

Implicating Constitutional Rights

In an attempt to manufacture a circuit split, Peti-

tioner has mixed apples with oranges. The “likely to

mislead” standard relates to the jury’s state of mind and

is applied by the reviewing court to assess whether the

trial court’s erroneous instructions were likely to confuse

or mislead the jurors. In contrast, the “substantial and

ineradicable doubt” standard addresses the level of certi-

tude that the appellate court should have regarding the

jury’s confusion before it reverses a verdict reached in the

wake of erroneous instructions. Neither standard is the

subject of a circuit split.

“

The court in Davis v. Ector County, Texas properly

explained the distinction:

“The function of the reviewing court with

respect to instructions is to satisfy itself that the

instructions show no tendency to confuse or

mislead the jury with respect to the applicable

principles of law.” . . [W]e will reverse if we

conclude that the trial court erred with respect

to the instructions proffered to the jury and that,

based upon the record, the error affected the

outcome of the case. In other words, does the

charge “as a whole leave[] us with substantial

and ineradicable doubt whether the jury has

been properly guided in its deliberations”?

40 F.3d 777, 786 (5th Cir. 1994) (citations omitted).

ee

1. The “Likely to Mislead” Standard

The “likely to mislead” standard identifies those

erroneous jury instructions that should be considered for

reversal. As one court observed: “On review of a trial

court’s charge to the jury, we must determine ‘not

whether the charge was faultless in every particular’, but

whether the jury was misled in any way and whether it

had a correct understanding of the issues.” Bueno v. City

of Donna, 714 F.2d 484, 490-91 (5th Cir. 1983) (citation

omitted). There is no competing standard on this issue.

Indeed, despite the many instances of challenges to erro-

neous jury instructions, no court of appeals has ever

stated that there was a split in the circuits on the question

of the standard of review to be applied when jurors

receive erroneous jury instructions. The Court’s interven-

tion in this settled area of the law is unnecessary.

All circuits that have spoken to the issue, including

the Fifth Circuit, employ the “likely to mislead” standard

for erroneous jury instructions in cases implicating con-

stitutional rights. See, e.g., Tatro v. Kervin, 41 F.3d 9 (1st

Cir. 1994); Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.

1994); United States v. Johnstone, 107 F.3d 200, 204 (3d Cir.

1997); Davis, 40 F.3d at 786; United States v. Pace, 10 F.3d

1106, 1120-21 (5th Cir. 1993), cert. denied, 511 U.S. 1149

(1994); Woodall v. City of El Paso, 950 F.2d 255, 261 (5th

Cir.), cert. denied, 506 U.S. 908 (1992); Bueno, 714 F.2d at

490-91; Innes v. Howell Corp., 76 F.3d 702, 714 (6th Cir.

1996); United States v. Easley, 942 F.2d 405, 411 (6th Cir.

1991); Doe v. Burnham, 6 F.3d 476, 479 (7th Cir. 1993);

Westborough Mall, Inc. v. City of Cape Girardeau, 794 F.2d

330, 335 (8th Cir.), cert. denied, 461 U.S. 945 (1986); Masson

v. New Yorker Magazine, Inc., 85 F.3d 1394, 1397 (9th Cir.

1996); Gardetto v. Mason, 100 F.3d 803, 816 (10th Cir. 1996);

Morro v. City of Birmingham, 117 F.3d 508, 513 (11th Cir.

1997). “ ‘ “The test is not whether the charge was faultless

in every particular but whether the jury was misled.” ’ ”

Westborough Mall, 794 F.2d at 335 (citation omitted).

Most of the cases cited by Petitioner do not deal with

constitutional issues and therefore are inapposite. See,

e.g., Luciano v. Olsten Corp., 110 F.3d 210 (2d Cir. 1997)

(Title VII action); Ayoub v. Spencer, 550 F.2d 164 (3d Cir.),

cert. denied, 432 U.S. 907 (1977) (medical malpractice);

Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), cert. denied,

City of Fayetteville, N.C. v. Spell, 484 U.S. 1027 (1988) (civil

rights action); National Union Fire Ins. Co. v. Cagle, 68 F.3d

905 (5th Cir. 1995) (insurance fraud); Federal Deposit Ins.

Corp. v. Mijalis, 15 F.3d 1314 (5th Cir. 1994) (breach of

fiduciary duty, breach of contract, and negligence);

Bradshaw v. Freightliner Corp., 937 F.2d 197 (5th Cir. 1991)

(products liability); Petes v. Hayes, 664 F.2d 523 (5th Cir.

1981) (products liability); Houston v. Herring, 562 F.2d 347

(5th Cir. 1977) (products liability); Clarksville-Montgomery

County Sch. Sys. v. United States Gypsum Co., 925 F.2d 993

(6th Cir. 1991) (products liability); Cincinnati Fluid Power,

Inc. v. Rexnord, Inc., 797 F.2d 1386 (6th Cir. 1986) (breach

of contract); Miller v. Utica Mill Speciality Mach. Co, Inc.,

731 F.2d 305 (6th Cir. 1984) (products liability); Binks Mfg.

Co. v. National Presto Indus. Inc., 709 F.2d 1109 (7th Cir.

1983) (breach of contract); Stoneking v. United States, 232

F.2d 385 (8th Cir.), cert. denied, 352 U.S. 835 (1956), and

cert. denied, 354 U.S. 941 (1957) (bank robbery and con-

spiracy conviction); United States v. Tagalicud, 84 F.3d 1180

(9th Cir. 1996) (conviction for conspiracy to defraud

immigration and naturalization service); United States v.

———

Smith, 13 E.3d 1421 (10th Cir.), cert. denied, 513 U.S. 878

(1994) (mail fraud and money laundering conviction);

United States v. Starke, 62 F.3d 1374 (11th Cir. 1995)

(money laundering conviction); Mark Seitman & Assoc.,

Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527 (11th Cir.

1988) (breach of contract). These cases uniformly apply ’

the “likely to mislead” test in any event.

Like the opinion below, all the circuits consider the

district court’s jury instructions “as a whole.” Tatro, 41

F.3d at 14; Anderson, 17 F.3d at 556; Bennis v. Gable, 823

F.2d 723, 727 (3d Cir. 1987); United States v. Fleschner, 98

F.3d 155, 158 (4th Cir. 1996), cert. denied, Clarkson v. United

States, 117 S. Ct. 2484 (1997); Davis, 40 F.3d at 786; Miller,

731 F.2d at 307; Doe, 6 F.3d at 479; Westborough Mall, 794

F.2d at 335; Masson, 85 F.3d at 1397; Gardetto, 100 F.3d at

816; Morro, 117 F.3d at 513; United States v. Washington,

106 F.3d 983, 996-97 (D.C. Cir. 1997).

Respondent has not found any cases in which a court

reversed a jury verdict simply on the ground that the jury

questions differed from otherwise accurate general instruc-

tions. This is consistent with our system’s faith in the institu-

tion of the jury and the general proposition that the jury is

the representative of “the commonsense judgment of the

community.” Teague v. Lane, 489 U.S. 288, 314 (1989); cf. Zenith

Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969)

(“The authority of an appellate court, when reviewing the

findings of . . . jury, is circumscribed by the deference it must

give to decisions of the trier of fact... . ”).

——————————

2. The “Substantial and Ineradicable Doubt” Stan-

dard

The “substantial and ineradicable doubt” language

that appears in the opinion below and on which Peti-

tioner attempts to fabricate a circuit split addresses a

completely separate issue from the “likely to mislead”

standard. Unlike the “likely to mislead” language, which

refers to the state of mind of the jury that has heard

erroneous jury instructions, the “substantial and ineradi-

cable doubt” language describes the requisite level of

certitude of the appellate court that the jury was misled.!

The courts of appeals that have addressed the issue have

held that reversal is appropriate if the appellate court has

“substantial and ineradicable doubt whether the jury has

been properly guided.” Pet. at 6. For example, one court

has explained its approach to erroneous jury instructions

as follows:

In reviewing a trial court’s jury instructions, an

appellate court “look[s] to see whether the

charges, considered as a whole, sufficiently

instruct the jury so that the jurors understand

the issues involved and are not misled.” “Rever-

sal is warranted only if we are left with ‘a sub-

stantial and ineradicable doubt as to whether

the jury was properly guided in its delibera-

tions.’ ”

1 Petitioner simply misunderstands the “substantial and

ineradicable doubt” language when it states that “[t]he

application of this test requires a determination that there is a

substantial and ineradicable doubt among the jurors as to the

correct law to be applied.” Pet. at 6 (emphasis added).

10

Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1050

(11th Cir. 1989), cert. dismissed, 493 U.S. 1064 (1990) (cita-

tions omitted). See Davis, 40 F.3d at 786; Westborough Mall,

794 F.2d at 335; First Dakota Nat'l Bank v. St. Paul Fire &

Marine Ins. Co., 2 F.3d 801, 816 (8th Cir. 1993). The three

circuits that have considered the issue of the requisite

appellate court certitude regarding whether the jury was

misled by erroneous jury instructions-the Fifth, the

Eighth, and the Eleventh Circuits-have landed upon a

single standard, the “substantial and ineradicable doubt”

standard. All other circuits have been silent on the issue.

In sum, neither the “likely to mislead” standard nor

the “substantial and ineradicable doubt” standard raises

an important federal question, implicates a circuit split,

or requires this Court’s attention. See Sup. Ct. R. 10

(Considerations Governing Review on Certiorari).

B. This Case Is Moot

Even if this Court were inclined to entertain a ques-

tion involving the standard of review to be applied to

erroneous jury instructions in constitutional law cases,

this case is not the proper vehicle because the case is

moot. As this Court stated recently, “[t]o qualify as a case

fit for federal-court adjudication, ‘an actual controversy

must be extant at all stages of review, not merely at the

time the complaint is filed.’ ” Arizonans for Official English

v. Arizona, 117 S. Ct. 1055, 1068 (1997) (citations omitted).

There is no continuing controversy between The Guide

and the City. The Guide’s complaint rested on the claim

that the competitive bidding process, codified in Eagle

11

Pass, Tex., Ordinance No. 93-12, was prompted by, sus-

ceptible to, and tainted by retaliatory motives in violation

of the First Amendment. The ordinance underlying the

claim of misconduct was repealed on August 26, 1996.

Resp. App. at 8-10. It was_replaced by a policy that splits

the City’s public notice business between The Guide and

The Gram. As a result, The News Guide carried the City’s

public notices from January 25, 1997 through July 14,

1997. Resp. App. at 11.

There is no continuing case or controversy between

the City and The News Guide. The offending bid pro-

cedure is no longer in existence and the business at issue

is being divided evenly between the eligible newspapers.

C. There Is No Important Federal Question Raised by

the Court of Appeals’ Finding that It Had No “Sub-

stantial and Ineradicable Doubt That the Jury Was

Properly Guided in Its Deliberations”

Petitioner suggests that this Court should grant cer-

tiorari in order to review the court of appeals’ finding

that it had no “substantial and ineradicable doubt that

the jury was properly guided in its deliberations.” Pet. at

13. Such an individualized finding raises no important

federal question worthy of this Court’s attention.

+

12

CONCLUSION

For the foregoing reasons, the petition for the writ of

certiorari should be DENIED.

Respectfully submitted,

Marci A. Hamitton, Esq.

482 Kings Road

Yardley, PA 19067

(215) 493-1973

(215) 493-1094 (facsimile)

Counsel of Record

Ricarpo J. NAVARRO

DENTON, McKamie & NAVARRO

A PROFESSIONAL CORPORATION

1700 Tower Life Building

310 S. St. Mary’s Street

San Antonio, TX 78205-3111

(210) 227-3243

(210) 225-4481 (facsimile)

Attorneys for Respondents

RESPONDENT’S APPENDIX

Resp. App. 1

ORDINANCES NO. 93-12

AN ORDINANCE ESTABLISHING PRO-

CEDURES FOR THE ANNUAL SELECTION OF

THE OFFICIAL PUBLICATION OF THE CITY

OF EAGLE PASS; AND PROVIDING FOR AN

EFFECTIVE DATE

WHEREAS, the City Charter of the City of Eagle Pass

provides that certain ordinances shall be published in the

official publication of the City of Eagle Pass; and

WHEREAS, Article 28a of the Texas Revised Civil Statutes

provides the minimum requirements for qualifying as a

legal publication; and

WHEREAS, Article 29a of the Texas Revised Civil Statutes

provides for matters to be published in the official pub-

lication of a governmental entity; and

WHEREAS, Section 52.004 of the Texas Local Government

Code requires the City of Eagle Pass after the beginning

of each municipal year to contract, as determined by

ordinance or resolution, with a newspaper to be the offi-

cial publication of the City of Eagle Pass; and

WHEREAS, the City of Eagle Pass does not have an

ordinance or resolution requiring the annual selection of

a newspaper as the official publication of the City of

Eagle Pass as required by state law; and

WHEREAS, the City of Eagle Pass desires to comply with

state law regarding the selection of a newspaper as the

official publication of the City of Eagle Pass.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY

COUNCIL OF THE CITY OF EAGLE PASS, TEXAS, as

follows:

nT

Resp. App. 2

SECTION 1. The City of Eagle Pass shall select and_

designate each fiscal year a newspaper as

the official publication of the City of Eagle

Pass for publication of City ordinances,

notices, and other matters required by law,

city charter, ordinance, contract, or other

to be published.

SECTION 2. The fiscal year of the City of Eagle Pass

shall be from October 1st of each year

through September 30th of the succeeding

year.

SECTION 3. The City of Eagle Pass, by and through its

City Manager, shall request proposals each

fiscal year from newspapers in Maverick

County, Texas to become the official pub-

lication of the City of Eagle Pass no later

than thirty (30) days prior to October Ist.

The City Manager shall prepare and pro-

vide each year the request for proposals to

be completed by newspapers interested in

becoming the official publication of the

City of Eagle Pass. All newspapers inter-

ested in submitting a proposal shall do so

by no later than September 15th of each

year, unless September 15th falls on a Sat-

urday, Sunday or legal holiday, then on the

first business day of the City of Eagle Pass

following September 15th. The City Coun-

cil of the City of Eagle Pass shall each

fiscal year award to and designate a news-

paper as the official publication of the City

of Eagle Pass by resolution at their first

regular meeting in October.

SECTION 4. All newspapers interested in submitting

proposals for the official publication of the

City of Eagle Pass shall meet the minimum

Resp. App. 3

requirements set forth in Section 2 of Arti-

cle 28a of the Texas Revised Civil Statutes

and/or as thereafter amended or provided

by state law.

SECTION 5. This Ordinance shall become effective

from and after its final passage as pro-

vided by law.

READ, PASSED, AND APPROVED, ON FIRST READING

this 28th Day of June, A.D., 1993.

/s/ Arturo Garcia, Mayor

Arturo Garcia, Mayor

ATTEST:

/s/ J. Irma Morales

J. Irma Morales

City Secretary

AYES: Garcia, Hernandez, Cardona,

Rodriguez, and Riojas

NAYS: None

APPROVED AS TO LEGALITY:

ABSENT: None

/s/ Ricardo E. Calderon

Ricardo E. Calderon

City Attorney

READ, PASSED, AND APPROVED, ON SECOND READ-

ING this 6th Day of July, A.D., 1993.

/s/ Arturo Garcia, Mayor

Arturo Garcia, Mayor

Resp. App. 4

ATTEST:

/s/ J. Irma Morales

J. Irma Morales

City Secretary

AYES: Garcia, Hernandez, Cardona,

Rodriguez, and Riojas

NAYS: None

APPROVED AS TO LEGALITY:

ABSENT: None

/s/ Ricardo E. Calderon

Ricardo E. Calderon

City Attorney

READ, PASSED, AND APPROVED, ON THIRD AND

FINAL READING this 20th Day of July, A.D., 1993.

/s/ Arturo Garcia, Mayor

Arturo Garcia, Mayor

ATTEST:

/s/ J. Irma Morales

J. Irma Morales

City Secretary

AYES: Garcia, Hernandez, Cardona,

Rodriguez, and Riojas

NAYS: None

APPROVED AS TO LEGALITY:

ABSENT: None

/s/ Ricardo E. Calderon

Ricardo E. Calderon

City Attorney

Resp. App. 5

[Minutes of]

City Council Special Meeting

Monday, August 26, 1996

Page 3

OTHER BUSINESS

5. Consideration and possible action upon an Ordinance

rescinding Ordinance No. 93-12 concerning the designa-

tion of the Official Newspaper for the City of Eagle Pass.

Mayor Rogelio Flores read, for the record, in total and in

full, an Ordinance captioned as follows, which said Ordi-

nance was submitted for first reading and is hereby incor-

porated and made a part of these minutes:

ORDINANCE NO.

AN ORDINANCE REPEALING ORDINANCE

NO. 93-12 PROVIDING FOR THE DESIGNA-

TION OF AN OFFICIAL CITY NEWSPAPER;

AND PROVIDING FOR AN EFFECTIVE DATE

Councilman David Riojas asked if there was any recom-

mendation regarding what system they are going to

implement for the future.

Interim City Manager, Roberto Gonzalez, stated that

because of the deadline that is imposed in the existing

ordinance, the immediate thing to do is to repeal said

ordinance and continue with the same practice until

October 1, 1996. He also stated that after conferring with

legal counsel and the Mayor, it is their intent to come

back before the Council and make a recommendation on

whether it will be left up to Administration to decide the

Resp. App. 6

procedures to be followed or if at a future time an ordi-

+ NA NAN Mal ot A De A

nance will be considered by Council on how this adver-

tisement will be carried out after October 1, 1996.

Mayor Rogelio Flores stated that the intention is to have

both newspapers participate equally and fairly in the

advertisements of the City, and maybe later in September

they can come up with an agreeable agreement between

both newspapers, and if that is not possible, then have

Administration decide on it. He added that he had talked

to Mr. Ruben Carrillo and Mr. Rex McBeath, and due to

the on-going litigation between the City and the G-P.

News Guide, Mr. McBeath had no comments at this time.

In response to a question posed by Councilman Jose

Guerra, City Attorney, Michael C. Boyle, stated that as a

home-rule City, there is no requirement that the City have

an ordinance designating an official newspaper. He

added that the current ordinance is not improper or

wrong, but it is not necessary. He stated that what the

Council is doing is repealing the existing ordinance

regarding designation of an official newspaper, and that

he does not believe that this would have any effect on the

pending litigation or appeal. He also stated that any

matter which was tried in the district court dealt with

issues that existed prior to any actions the Council may

take now. He advised the City Council that if they

wanted to repeal the existing ordinance they could, and if

they did not wanted [sic] to repeal the ordinance and

keep it in effect, even though it is not necessary, then they

would have to proceed with the bidding and follow the

procedures, but the decision was for the Counsel to make.

a ee

Resp. App. 7

In response to a comment made by Councilman Oscar L.

Rodriguez, City Attorney, Michael C. Boyle, explained

that when Ordinance No. 93-12 was adopted by the City,

it was not necessarily required by statute to do it, but

there was nothing to prevent the City from doing it. He

further explained that if you are a home-rule City, you

can pass an ordinance such as Ordinance No. 93-12, and

there is nothing wrong with doing so, and that as a home-

rule City they can also repeal it. He stated that it was not

an illegal act and

Resp. App. 8

ORDINANCE NO. 96-16

AN ORDINANCE REPEALING ORDINANCE

NO. 93-12, PROVIDING FOR THE DESIGNA-

TION OF AN OFFICIAL CITY NEWSPAPER;

AND PROVIDING FOR AN EFFECTIVE DATE

WHEREAS, on June 28th, 1993, the City Council of the

City of Eagle Pass, Texas (“City”), passed Ordinance No.

93-12 providing for a mothod [sic] by which the City

would designate an official City newspaper for a specific

period of time; and

WHEREAS, the City has now determined that it does not

wish to be restricted by the provisions of Ordinance No.

93-12, and that the same should be in all things repealed.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY

COUNCIL OF THE CITY OF EAGLE PASS, TEXAS, as

follows:

SECTION 1. The City Council of the City of Eagle Pass

hereby repeals Ordinance No. 93-12 pro-

viding for the designation of an official

City newspaper for a specific period of

time, and as repealed, such Ordinance shall

have no further force or effect.

SECTION 2. This Ordinance shall become effective from

and after its final passage as provided by

law.

READ, PASSED, AND APPROVED ON FIRST READING

this 26th Day of August, A.D., 1996.

/s/ Rogelio Flores

Rogelio Flores, Mayor

Ri IO all abit ail:

thn ate miata Athy A Al He

Resp. App. 9

ATTEST:

/s/ J. Irma Morales

J. Irma Morales

City Secretary

AYES: Flores, Guerra, Rodriguez,

Riojas, and Sandoval

READ, PASSED, AND APPROVED ON SECOND READ-

ING this 4th Day of September, A.D., 1996.

/s/ Rogelio Flores

Rogelio Flores, Mayor

ATTEST:

/s/ J. Irma Morales

J. Irma Morales

City Secretary

AYES: Flores, Guerra, Riojas, and

Sandoval

NAYS: None

ABSENT: Oscar L. Rodriguez

APPROVED AS TO LEGALITY:

/s/ Michael C. Boyle

Michael C. Boyle

City Attorney

READ, PASSED, AND APPROVED ON THIRD AND

FINAL READING this 26th Day of September, A.D., 1996.

/s/ Rogelio Flores

Rogelio Flores, Mayor

Resp. App. 10

ATTEST:

/s/ J. Irma Morales

J. Irma Morales

City Secretary

AYES:

NAYS:

Flores, Guerra, Rodriguez,

Riojas, and Sandoval

None

ABSENT: None

APPROVED AS TO LEGALITY:

/s/ Michael C. Boyle

Michael C. Boyle

City Attorney

———— eee

Resp. App. 11

January 14, 1997

To Whom It May Concern:

The following is a schedule the City of Eagle Pass will use

when publishing ordinances, legal notices and public

notices:

1. Beginning January 15, 1997 until July 14,

1997, the City will publish its ordinances,

legal notices and public notices in the Guide

Publishing Company.

2. Beginning July 15, 1997 until January 14,

1998, the City will publish its ordinances,

legal notices and public notices in the News

Gram.

3. The City will make every effort to distribute

all of its other advertising equally amongst

all the News Media.

4. There might be overlapping periods where

ordinances or notices will be published in

the print media contrary to the schedule on

items 1 and 2 above. That will only occur if

we had previous commitments to advertise

in that print media.

5. The City is not designating any print media

as the City’s official newspaper.

6. The print media must not charge more than

their lowest published rate as required by

law for advertising and publishing.

7. A certification from the print media certify-

ing that they are not charging the City more

than their lowest published rate as required

by law for advertising and publishing.

Resp. App. 12

8. The city must be invoiced on a monthly

basis.

It is the City’s intention to receive the best possible

service and prices while being fair with all the News

Media.

If there are any questions regarding the above, contact

Mr. Pete Sepulveda, Jr., City Manager.

Resp. App. 13

[LOGO]

HAND-DELIVERED

January 14, 1997

Mr. Ruben Carrillo Mazuka

The News Gram

1131 North Bibb

Eagle Pass, Texas 78852

Dear Mr. Mazuka:

Attached is a schedule the City will follow when publish-

ing ordinances, legal and public notices.

It [sic] you have any questions, call me.

Sincerely,

CITY OF EAGLE PASS

/s/ Pete Sepulveda, Jr. 1/16/97

Pete Sepulveda, Jr. AMR

City Manager xc: Manuel Contreras,

Finance Dir.

Irma Morales,

City Secretary

psj:sg

Attachment

Resp. App. 14

[LOGO]

HAND-DELIVERED

January 14, 1997

Mr. Rex McBeath

The Guide Publishing Company

P.O. Box 764

Eagle Pass, Texas 78853-0764

Dear Rex:

Attached is a schedule the City will follow when publish-

ing ordinances, legal and public notices

If you have any questions, call me.

Sincerely,

/s/ Pete Sepulveda, Jr. 1/16/97

Pete Sepulveda, Jr. AMR

City Manager xc: Manuel Contreras,

Finance Dir.

Irma Morales,

City Secretary

psj:sg

Attachment