Reply Brief — Haughton v. Wal-Mart Stores, Inc.

No. 02-670

BEC 5S 2M

IN THE

i

SUPREME COURT OF THE UN STATFES~

RALSTON HAUGHTON and MARGARET HAUGHTON

husband and wife, Petitioners

Vs.

WAL-MART STORES INC., Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITIONERS’ REPLY BRIEF TO RESPONDENT’S

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

Ralston Haughton, Pro se.

Margaret Haughton, Pro se.

2150 Princeton Street,

Sarasota, Florida 34237

Tel: 941-724-2912

QUESTIONS PRESENTED FOR REVIEW

1. Whether Title 42 U.S.C. § 1983, and the

Equal Protection Clause of the Fourteenth Amendment

of the United States Constitution, affords the

Respondent Wal-Mart Stores Inc., the right to be

directed, to be advised, and to be authorized by the

states attorney’s office to write the race of the

Petitioner on the Petitioners’ check when purchasing

merchandise at the Respondent's store, and Respondent

Wal-Mart Stores Inc., not be rendered a state actor

“under color of state law”.

2. Whether the Equal Protection Clause of the

Fourteenth Amendment of the United States

Constitution, affords Respondent Wal-Mart Store Inc.,

the right to write the race of the Petitioner on the

Petitioners’ check when purchasing merchandise at Wal-

Mart Store Inc., store, without a valid compelling state

interest.

LIST OF PARTIES TO THE PROCEEDINGS IN

THE COURT BELOW

L. ASDA Group Limited

Y Richard A. DuRose

3 Scott A. Forman, Esquire

4 Hon. Thomas B. McCoun, 111, U.S. Magistrate

Judge

5 Margaret Haughton

6. Ralston Haughton

7; McLane Company, Inc., and its subsidiaries

8. Hon. Steven D. Merryday, U.S. District Judge

9. Sam's East,, Inc.

10. Sam's Property Company

11. Sam's West, Inc.

12. Sam's Real Estate Business Trust

13. Michael C. Scher, Esquire

14. Wal-Mart Property Company

15. | Wal-Mart de Mexico, S.A. de CV.

16. | Wal-Mart Real Estate Business Trust

17. | Wal-Mart Stores East, Inc. Page

18. | Wal-Mart. Com, Inc.

19. | Wares Delaware Corporation

20. Erin A. Webb

21. Hon. L. Lanier Anderson, Judge, U.S. Court of

Appeals. Eleventh Circuit.

22. Hon. Rosemary Barkett, Judge, U.S. Court of

Appeals Eleventh Circuit

23. Hon. Charles R. Wilson, Judge, U.S. Court of

Appeals, Eleventh Circuit.

24. John R. Hamilton, Esq.

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TABLE OF CONTENTS

Page

Question Presented for Review. ................ccccsssesessssceeeeeees -i-

List of Parties to the Proceedings in this Court.......-ii-

SE I sniccsssenressentonnonenansncessseseursoncnptovecsoninreces -iv-

Petitioners’ Reply to Respondent's Argument A........... 1

Petitioners’ Reply to Respondent's Argument B............. 3

ILC Tiaiddilshidakainnbebeventeiasnebaiestienbiniesniiiicassinenaniennvvsccesevseee 6

TABLE OF AUTHORITIES CASES

Page

Anderson v. Martin, 375, U.S. 399, 84 S. Ct. 454,

BS Se De iicitieensntinisdintieinniciiniaicmmmamess 1

Barrows v. Jackson, 346 U.S. 249, 254, 73 S. Ct 1031,

Fee FE Fi ie, Be iietiesirtsicicennscnniniennsiibicieiiihiaiiiatanecnivanloncties 1

Baldwin v. Morgan, 287 F.2d at 750-760,

re Se Tie iireescerinssssevstctnsicnsiaineansiiiiedeneitieantianadiianmiaiiigiimaniaiine 2

Burton v. Wilmington Parking Authority, 81 S. Ct 856

Ser oxiscicnisepsiincnniesninieaianpiicininieinienmmnnsenieiibenuncetisnnihieiaaaianidiatii 1,2,3,4

Edmonson v. Leesville Concrete Co., (1991) 500 US. 614,

114 L.Ed. 2d 660, 674, 111 S. Ch. 2077.....cccscccccccssccrsssesses 4

Lombard v. Louisiana 373 U.S. 267, 83 S. Ct. 1122,

he, ae ee i iihicriesentaninvesinmneccihhatinineveanaitedinntes 3

McCabe v. Atchison, Topeka & Santa Fe R. Co.,

2355 US. T51, TH S. Ch GB, FDL. Th, 1D iecicsceccccecccssesesss 1

Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627,

TE 123,5

Robinson v. State of Florida, 378 U.S. 153, 156, 84 S. Ct.

SOU SO A Rae: Ue NE - P enpreenncsiemsenieiomnaniapcnecens 1

Seidenberg v. McSorleys’ Old Ale House, Inc., 317 F. -

SU. TR GE TM Ce Ce, a iaeeasiissatsesscssesccseniesensonson 5

STATUTES

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Sn UN Sh asics icintsesenlicensnteiesinientcniataeait 25

CONSTITUTIONAL PROVISIONS

Fourteenth Amendment to the United States

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Equal Protection Clause of the Fourteenth

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PETITIONERS’ REPLY TO RESPONDENT’S

ARGUMENT A

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WELL-SETTLED PRINCIPLES OF LAW AND THE

EVIDENCE IN THE RECORD ESTABLISH THAT

WAL-MART IS A STATE ACTOR

The Petitioners’ petition for writ of certiorari page

8, cited Reitman _v. Mulkey, 387 U.S. 369, 87 S. Ct.

1627, 18 L. Ed. 2d. 830 (1967). Here it is well stated

that:

“Based on these cases, Robinson _v. State of

Florida, 378 U.S. 153, 156, 84 S. Ct. 1693, 1695,

12 L. Ed. 2d 771; Anderson _v. Martin, 375, US.

: 399, 84 S. Ct. 454, 11 L. Ed. 2d 430; Barrows

v. Jackson, 346 U.S. 249, 254, 73 S. Ct. 1031,

1033, 97 L. Ed. 1586; McCabe ov. Atchison, Topeka

& Santa Fe R. Co. 235 US. 151, 35 S. Ct 69,

! 59 L. Ed. 169, it concluded that a prohibited

state involvement could be found “even where

the state can be charged with only

encouraging,” rather than commanding

discrimination.

Also of particular interest to the Court was

the Honorable Mr. Justice Stewart's concurrence

in Burton _v. Wilmington Parking Authority, 365

U.S. 715, 726, 81 S. Ct. 856, 862, 6 L.Ed. 2d

45, where it was said that the Delaware courts

had construed an existing Delaware statute as

;. “authorizing” racial discrimination in restaurants

and that the statute was invalid.”

These cases show conflicting results from the ruling

of the lower Courts in this case.

In this case the state attorney's office had taken

affirmative action designed to make Respondent

discrimination possible. Respondent's customer check

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policy was changed from one in which discrimination

was restricted to one wherein it is encouraged and

was made a guideline (R1- 81,- 47- lines 14-17). The

state attorney’s office advice, direction and authorization

to Respondent to write the race of the Petitioner on

the Petitioners’ check made the state attorney's office a

partner in the instant act of discrimination. See Reitman

v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d.

830 (1967).

The record also shows that, race is the

determinant factor throughout this case, and that the

state attorney's office used race as a basis for

distinction through the medium of Respondent (R1- 81,-

46-lines 21- Pg. 47-line 2), also (R1- 83,- 132,-lines 12-

24), of which is clearly forbidden in this Court.

The Petitioners cited Baldwin _v. Morgan, 287 F.2d at

750-760, (Sth Cir. 1961), which held that:

“What is forbidden is the state action in

which color (i.e., race) is the determinant.” Id

754. The Court then went on to say: “As we

have pointed out above the State may not use

race or color as the basis for distinction. It

may not do so by direct action or through the

medium of others who are under State

compulsion to do so”. Id 756.

The record has clearly shown that the Petitioners

were deprived by the Respondent of their right to be

free from racial discrimination, which is secured by the

Equal Protection Clause of the Fourteenth Amendment

- Of the Constitution of the United States. The record

has also shown that, the Respondent was a state actor

acting under color of state law by writing the race of

the Petitioner on the Petitioners’ check by the

direction, the advice, and the authorization of the state

attorney's office.

Ct ial 5 Si lide AIA PR te AACE re Citas En a DM Wn Me he

PETITIONERS’ REPLY TO RESPONDENT’S

ARGUMENT B.

THE CASES CITED IN THE HAUGHTON’S

PETITION DOES SUPPORT THEIR ARGUMENT

THAT WAL-MART WAS ACTING UNDER COLOR

OF STATE LAW

The Petitioners in their petition for writ of

certiorari cited Lombard _v. State of Louisiana, 373 U.S.

267, 83 S. Ct. 1122, 10 L. Ed. 2d 338. Here, this

Court in Reitman _v. Mulkey, 387 U.S. 369, at 380 87 S.

Ct. 1627, at 1633, 18 L. Ed. 2d. 830 (1967), quoting

Lombard supra, stated:

“Finally, in Lombard v. State of Louisiana 373

U.S. 267, 83 S. Ct. 1122, 10 L. Ed. 2d 338, the

Court interpreted public statements by New

Orleans City Officials as announcing that the city

would not permit Negroes to seek desegregated

service in restaurants because the statements were

deemed to have as much coercive potential...”

Similarly in this case, the statement of the state

attorney's office that they would prosecute Respondent's

customers’ fraudulent checks with race written on

them, using the Court and the Florida Statute 832,

was potentially coercive for Respondent to adopt and

follow the state attorney’s direction, guidelines and

authorization to write the race of the Petitioner on the

Petitioners’ check violating the Petitioners’ Constitutional

rights. Respondent's head of the accounting

department Carolyn Shelton testified that ~... if we

wanted to prosecute checks, we had to follow these

guidelines in order to do it. (R1- 81,- 47- lines 14-17),

also, (R1-83-132,- lines 12-24).

This Court also stated in Reitman _v. Mulkey 387

US. 369, 87 S. Ct. 1627, 1633, 18 L. Ed. 2d. 830

(1967) that:

“In Burton _v. Wilmington Parking Authority,

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365 U.S. 715, 81 S. Ct. 856, the operator-

lessee of a restaurant located in a building

owned by the State and otherwise operated

for public purposes, refused service to

Negroes. Although the State neither

commanded nor expressly authorized or

encouraged the discrimination, the State had

“elected to place its power, property and

prestige behind the admitted discrimination”

and by “its inaction * * * has * * * made

itself a party to the refusal of service * * *

“which therefore could not be considered the

purely private choice of the restaurant

operator.”

The Petitioners cited Burton Id., showing similarity in

this case that the state attorney's office is responsible

for the Respondent's alleged conduct, and not only did

the state attorney's office authorize, direct, or advise

the alleged conduct of the Respondent, the state

attorney's office also enforces the racially discriminatory

conduct of the Respondent upon the Petitioners.

Respondent's head of the accounting department

Carolyn Shelton testified that: “When we went to

prosecute on the check, the prosecutor told us we had to

have this information in order to prosecute (R1- 81,- 46

lines 21- Pg. 47- line 7), in that, the state attorney's

office not only has made itself a party to the racial

discriminatory act, but also has elected to place the

state attorney's office power, property, the Court, and

prestige behind the alleged discriminatory conduct.

See Burton _v. Wilmington Parking Authority, 365 US.

715, 81 S. Ct 856, also see Edmonson v. Leesville

Concrete _Co., (1991) 500 U.S. 614 114 L.Ed. 2d 660,

674, 111 S. Ct. 2077.

The Respondent cited the United States Court of

Appeals Eleventh Circuit ruling(Appx-B-Pg. 28.), which

stated that:

” Finally, although the state attorney's office

. advised Wal-Mart of the information that it would

: like to have to prosecute check fraud, it did not

compel or provide encouragement significant

enough for Wal-Mart to have become a state actor

under the state compulsion test.”

The Petitioners cited Seidenberg v. McSorleys’ Old Ale

House, Inc., 317 F. Supp. 593, at 598, (2nd Cir. 1970),

which stated that:

“if the state engages in conduct having the effect

of encouraging, tolerating or acquiescing in

discrimination, the Fourteenth Amendment may be

invoked. (quoting) Reitman _v. Mulkey, 387 U.S. 369,

87 S. Ct. 1627, 18 L. Ed. 2d. 830 (1967),”

showing more conflicting results.

The evidence in the record has shown that the state

attorney's office did tolerate the writing of race on

customers checks (R1- 81,- 47- lines 14-17)., the state

attorney's office authorized the writing of race on

customers’ checks allowing the alleged policy of the .

Respondent to violate the Petitioners’ Equal Protection

right under the Fourteenth Amendment of Constitution

of the United States (R1- 98, copy of check attached),

and also, the state attorney's office acquiescing in the

discrimination (R1- 83,- 131,- lines 11- Pg 132- line 24).

Furthermore, the record shows that Respondent has

not shown any demonstration of any successful

relationship to combating customers’ fraudulent checks.

The facts and the evidence in the record has clearly

shown that the lower Courts have reached conflicting

results in this case, and have overlooked a clear

distinction that this Court's cases have drawn, and the

Court should therefore grant the Petitioners’ petition

for writ of certiorari.

CONCLUSION

For the foregoing reasons, the petitioner respectfully

prays that its petition for a writ of certiorari be

granted.

Respectfully submitted,

—

Ralston Haughton Pro se.

Margaret Haughton Pro se. |

2150 Princeton St.,

Sarasota, Fla. 34237,

Tel: 941-724-2912

Dated: December 4, 2002.

AFFIDAVIT IN SUPPORT OF PEITIONERS’

REPLY TO RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

I, Ralston Haughton and Margaret Haughton in pro se,

the Petitioners in this case duly sworn on oath, affirm

that the statement we have made in the Reply to

Respondent's Brief in Opposition to Petition for Writ

of Certiorari are true to the best of our knowledge,

information and_ belief.

State of Florida

County of Sarasota

: , >, am

Ralston Haughton

Atti pietl Pl tciglltba.

Margaret Haughton

SWORN TO AND SUBSCRIBED before me on. S/L ,

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