# Brief of Respondents AW Lafferty and Richard L Merrick in Opposition to Petition for Writ of Certiorari — Benton County v. Lafferty (No. 429) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1508%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Respondents AW Lafferty and Richard L Merrick in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1957 ## Text cr ” INDEX: 7 ; ; PAGE Question Presented Pte ad EE aN Statement ’ | : 2 Reasons for Denying WTrit......-...----.------v+-ss--sc-sso-ssossseneees - 4 : Alleged Conflict ‘with This Court’s Order......... 4 . “Public Policy” eS A ee ee Se 6 : .\“Appellate Fact Finding” .:.........:....o-:000-- io _ 4 The Petition for Certiorari Is Premature - & United States v. United States Gypsum Co., 333 US. « § 364 (1948) . ae he Ee: ~ United States v.. Wholesale Oil Sa: Ine., 154 F.2d | ERR ek -dee 12 Valdes v. Larrinaga, 233 U. S. 705, 34 S. Ct. 750. ase diy sancKicsianapibcnpabcigui iene paneieerce vanes ageonteseonsese a ae a Is THE | - | Supreme Court of the United States October Term, - 1957 ap No. 429 | * BENTON Cousry, OREGON, ET AL., "Petitioners ? v. A. W. LaFFERTY, Ricnarp_L. Merrick, and - RoBERT B. AnverSon, Secretary of the Treasury, ET AL. ” — _ . a _ _ BRIEF OF RESPONDENTS A. W. LAFFERTY AND ’ RICHARD L, MERRICK, IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI QUESTION PRESENTED The question to be decided is whether the Plaintiffs be- low, A. W. Lafferty and Richard -L. Merrick, are entitled. to compensation for- their professional ° services out of a part of the fund, which has been withheld in the Treas- ury for this purpose, or whetlrer upon the unsubstantial. © ground that an Act of Congress of June 24, 1954, which followed .and ‘implemented the decision. of the Court of Appeals of April 30,.1954, intervened, the plaintiff lawyers — - are to be deprived of all compensation for their arduous labors on behalf of 18 Oregon counties, which resulted in substantial benefits to the counties. . “ 2 ; o / STATEMENT The facts set forth in the’ petition dre deemed to be insufficient to apprise this Court fully of the situation. - By four Acts passed in 1866, 1868, 1869, and 1870 (14 Stat. 239;-15 Stat. 80; 16 Stat. 47; 16 Stat. 94), Congress granted more than 3,000,000 acres of land in Oregon to the Oregon and California Railroad: Company. The grant- ing acts required sales of the lands to actual settlers in tracts not greater than 160 acres and for prices not exceeding $2.50 per acre. - Neer For’ failure by the railroad to obey those Tequire- . ‘ments, Congress, by the Act of June 9, 1916° (39 Stat, 318), revested the title to all unsold lands in the United : _btates. . nals » By the Act of August 28, 1937 (50 Stat. 874), the re- vested lands were directed to be administered by the Department of the Interior “for permanent forest pro- duction, and the timber to sold, cut, and removed ‘in © ‘conformity with ‘the principle. of sustained yield,” 75 ‘per cent of the -revenues derived therefrom. to be paid to the eighteen Oregon counties in which the lands are ’ Jocated, and 25 per cent to the Department. of the In- terior for administration purposes. ollie By Proclamations issued in 1892 and 1893, the Presi- dent established two forest reserves (now called National Forests), and included therein 472,000 acres located within the boundaries of the grant to the railroad company. - As a result of a jusisdictional controversy between the Departments of Interior and Agriculture, an agreement was ‘reached in-1942 to, hold the money derived: from. timber sales in a Special Account in the Treasury De- partment until settlement of the jurisdictional dispute. In 1952, Clackamas County, Oregon, brought an action in the United States District Court for the District of S 3 Columbia on its behalf and on behalf of the other seven- teen land grant counties, who are the Petitioners in the case at bar, to release the funds to-the counties and to determine the jurisdictional dispute (Clackamas County v. Douglas McKay, et al.*) That action resulted in the opinion of the United States Court of Appeals for the District of Columbia which is printed in Petitioners’ Appendix C herein at pages 15a to 48a, and which is - yeferred to herein as the Clackamas County case. Re- spondents Lafferty and Merrick were attorneys for Clackamas County in that litigation. : The object of Respondents Lafferty and Merrick in the case at bar is the recovery of compensation for their suc- cessful efforts’ in the Clackamas County ase, payable from funds held in the Treasury pending the outcome of this litigation (Joint (App. No. 11,844, Clackamas County _ case, page 3A et seq; No. 604, October Term, 1954, in - this C6urt). , ste The Solicitor General of the United States summarized | the controversy in the Clackamas County case in his. peti- | tion for certiorari in No. 604, October Term, 1954, in this Court, as follows: | oo i 4 The Oregon counties contended ... that the lands in - question should be considered “O & C” lands. In $939, the. Department of the Interior changed its earlier view and adopted the position of the Oregon. counties. Hearings H. Committee on. Public Lands, H. R. 1688 and S. 275, 78th Congress, 1st and 2d sessions (1943-1944), pp. 227-229. Because of the * tn \this Brief in opposition to the petition for ‘certiorari, the * case entitled A. W. Lafferty and Richard L. Merrick Vv. George M. Humphrey, Secretary of the'Treasury, et al.; and Benton County, et al., No. 2561-54 in the District Court; No. 13,353 in the Appeals; and No. 429 in this Court, which is the case lis, for convenience, referred to the Lafferty case. The case of |\Clackamas County, Oregon, v. McKay, Secretary of graph: 4. Though this Court has made clear. that anticipa-— tion of future difficulties does not preserve the © ‘ticiable quality of a case which has been rendered ~ moot (Commercial Cable Co.-v. Burleson, 250 U.S. on -360, 362), to allay any apprehension which .respond- ent may have, we suggest that the-judgment of the — 3 -eourt of appeals should be-reversed or vacated ant. the case remanded for dismissal as moot without rejudice to the rights of the respondent in the uture with respect to any actual ‘issue which may. possibly develop’ under ‘the present law (Citing. . cases]; A grant of ‘certiorari accompanied by a re-~ versal. or vacating of the judgment of the Court of .: Appeals .and a remand of the cause to. the district -eourt with directions to, vacate the order appealed - from and to dismiss the proceeding as moot would be an apprdriate disposition of the case [Citing * eases]. yk ! " 2 4 Qe ° It was unnecessary for this Court, in its order of April . - 18, 3955, to. state that-the case was to be dismissed “with- out prejudice to the rights of the respondent” because such=was the well settled legal effect of its order. In U. S. v. Munsingwear, Inc., 340 Us S. 36 (1950), cited by Petitioners, this Court held that in a case where the judgment was not & cated, the unvacated. judgment operated as res judicata, but this Court ‘pointed out that | in a case°’where a judgment is-vacated for mootness, the ¢ result is entirely different: This Court said: — , ae ee ae: eee The ‘established practice of the Court in d-aline with |. - a civil case from a court in the federal system which . has become moot while on.its way here or pending, our decision on the merits is to reverse or vacate . | ey 6 AS . ° a! v . a> oY Se a i the judgment below and. remand with’ a direction to dismiss. That was said in Duke Power Co. v. Green... wood County, 299 U. 8S. 259, 267, 57 S. Ct. 202, 208, 81 L. Ed, 178, to be “the duty of the appellate court”. ” That procedure clears the path for future relitiga- tion of the issues between the parties and eliminates a judgment, review of which was prevented th happenstance. When that procedure is followed, the — ‘ rights of all parties are preserved ; none is prejudiced . by'a decision which in the-statatory scheme Was only . —prehminary. ~ eee oe 3 In the Clackamas County case, No. 604, this-Court did not -reverse the opinion of the Court of Appeals. It vacated the judgment of the court below on the ground of mootness and, in effect, decided only that the Statute of June 24,1954, related to substantially the same subject © _ matter considered by the Court of Appeals in its opinion of April 30, 1954, and that, therefore, there was no longer any actual controversy between the parties. : f> 4 tn?" ! The very. purpose of this procedure, as this Court pointed out in its opinion in the Munsmgwear case is “to ‘prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.” _ If, under the procedure followéd by ‘this Court in the - . Clackamas County case, “the rights of all parties are’ _ preserved” and “none is prejudiced” as between the par- "ties to that litigation, it must be true, as betweén differ- ent parties to different titipation over different issues that no “legal consequences” result from the prior liti- _ gation, and that there is no conflict between the litiga- tion in the Clackanias County case and this case _ 2. “Public Policy” The ‘second reason assigned by Petitioners for grant- ing the writ of certiorari is: : “2. A federal court’s award of attorney's fees out of " , public monies appropriated for a specific purpose, for - o siieaiiiines the passage of Die Jegislation raises such grave questions of public policy as to call for review by this Court.” i. It is the obvious purpose of Petitioners to bring them- .. selves under that portion of Rule 19(1)(b) of. the Re- . vised Rules’-of this Court. which provides that one of the reasons for granting review on writ of. certiorari _.,which. will be considered by the Court is-“Where a court. of appeals . . has decided an’ iinportant-questionof fed- eral law. which has not been, but should be, settled- by this Court; siiadeies submit that there j is-in this case no ques- tion as to the validity or construction of the Constitu- tion or any law of the United States and that there is dn the case no question of federal law, but, on the con- trary, the question decided by the court-of appeals .was- an ordinary common law question not within the criteria laid down by this Court Leal granting the writ of cer- -tiorari. Under the caption (page 14 of Petitioners’ petition), “The Award Offends Public Policy,” Petitioners argue that the recovery of a fee by plaintiffs is. so repugnant . to public policy that it should be laid down, as a matter of law, that they cannot recover any compensation in-any amount. for the services: which they admittedly rendered. _ In.order to perceive the full import of Petitioners’ argument it is essential to keep in mind.a few elemental facts in this case: ‘The Clackamas ‘County case Was a ae sttion hoseat by Plaintiffs as attorneys in the name of Clagkamas County for the benefit of all similarly cireumstanced eigh- teen Oregon land grant counties. The action resulted in . a decision of the United States Court of Appeals for the’ District .of Columbia Circuit, which compelled the dis- tribution to all eighteen counties of 75% of a fund in ye the custody of the Secretary of the Treasury. After the rendition of this ‘opinion of the Court of Appeals, the ‘Congress enacted into statutory form .the substance of ' the opinion’ of the Court of Appeals relating to the | - status of the-land .and distribution of the impounded - funds. The only evidence that plaintiffs took any action whatsoever with reference to this statute is the statement in an affidavit: filed by Lafferty; one of the Plaintiffs, that among other services rendered by him, he appeared be-— fore’.a committee expt Congress. ( See statement ‘on page 16 of Petitioners petition.) The Federal Regulation of Lobbying Act (2 U.S.C. Nos. 261- 270), which regulates lobbying, expressly exempts .appearances. before cotn- mitters of Congress from the operation of the Act. Sec- tion 267(a) states that the Act does. “not apply to any person who merely appears before a committee : of. the Congress of the United States in support of or opposition to legislation.” In Trist v. Child, 21 Wall. 441, cisea by Petitioners, a - & contract which, contemplated certain lobbying activity, which* this Court deemed improper, was held to be in- valid. But this Court was careful to point wut that an agreement -for purely professional ‘services would lave been. ‘valid. The Court said: We entertain no doubt that in such cases, as under”. all other cifeumstances, an agreement express or implied for purely professional services: is- valid. “Within this category sem ineluded: drafting the peti- tion to set forth “the claim, attending to the taking of. testimony, collecting facts, preparing arguments, ‘and submitting them. orally or in writing, fo a commnittee or other proper authority, and other sere ices of. like character. (Emphasis - supplied) Thus. does the Supreme Court draw a clear line be- tween contracts for services which are nye ae those gd are. void, Valdes ¥. Larrinaga, 233 iv s. 700, 3d . Ct. 750. be ‘ 9 . The Petitioners also cite Marshall v. Baltim: ore & Ohio Railroad Co., 16 How. 314.~-In Marshall, the Court was careful to make a distinction ‘between improper actions such as it condemned and proper professional activity in ~ connection with proposed legislation. The’ court said: All persons whose interests may in any way be af- fected by any public or private act of the Legislature - have an undoubted right to urge their claims and arguments, either in person or by counsel professing. to ‘act for them, before legislative committees, as well” * as im courts of Justice. (Emphasis, supplied) In the case at bar, respgndénts’are lawyers who were employed .by Clackamas (’ ounty, \Oregon, to,undertake im- // portant professional ‘employ rent \for the benefit of. all the’ e jJand grant counties of Oregon. This they carried out, with a high degree of skill, and with signal success. To say that there was anything improper, or against public policy, in “their employment or: in their conduct, is. to make a gratuitous attack upon two members of the bar. of this court, without a scintilla of evidence to-support. it. . “Appellate Fact Finding” | The third reason assigned | by the Phtitionérs for grant- ing the writ of certiorari is: | . (3) The factual dekeeinlaintion on an appellate level of a ‘causal connection’ between the Clackamas litiga- tion and subsequent favor legislation so far departs from the accepted judicial. standards as .to call for an €xercise of this.Court’s supervisory jurisdiction. _ It is the obvious purpose cf Petitioners to bring them- _ selves under that portion.of Rule 19(1)(b) of ‘the Re- vised Rules of this Court which provides that one of the. reasons for granting. review on writ of certiorari which ° “will be considered by’ this Court is \ Where a court of appeals ... has 'so far departed , _-from the accepted and usual course of judicial pro- one ¢ 2: | . \10 ceedings, or so far sanctioned ‘such a departure by a we _lower court, as to call for.an exercise of this court’s: power of supervision. is Respondents submit that there was in fact. no departure * from the usual course of judicial proceedings ; that, on - the contrary, the action of the Court of Appeals was in complete ‘accord with the usually accepted course of the 7 judicial process.” ae ‘ ae \ ; ° : _ The Plaintiffs, Lafferty and Merrick, brought an action in the United States’ District Court for- the District of Columbia against the Secretary of thet Treasury, the Secretary of the, Interior, the Secretary of Agriculture. - and eighteen counties: in the State of Oregon to re- cover compensation for legal services rendered \to the counties. — | a Ry ie @ ee The Secretary of the Treasury was joined only \be- — cause he was the stakeholder of a fund belonging to the counties out of which Plaintiffs were to be paid if they recovered g judgment against the counties; the Secretary of the Interior and the Secretary of Agriculture were joined only that they might be enjoined from interfering. with such payments. The three Secretaries had no in- | terest in and took no position as. to the merits of the controversy between Plaintiffs and the counties, as was -*plainly stated by the trial judge in his final-order where- . in he said: | _.. and it appearing to the Court that defendants, George M. Humphrey, Secretary of the Treasury; Douglas McKay, Secretary of the Interior; and Ezra © Taft Benson, Secretary of Agriculture, take no posi- tion on the merits between the plaintiffs: and ‘the ~ seventéen counties heretofore named .. a. _ Thus, the action brought by Plaintiffs, was in*essence- - a suit, by lawyers against the counties to recover fees for services rendered, and nothing more. . PRS Oe ¢ . Se | _ The final order of the trial judge denied plaintiffs’ motion for summary judgment, granted the motion: of the seventeen counties for summary judgment, and or- . dered that judgment-be entered in favor of the defend- ants and against : the Plaintiffs. The case was submitted to the trial judgé wholly on written documents, consisting of the pleadings -and- two . affidavits of the Plaintiffs and other affidavits filed by - Plaintiffs in support of their position. No witnesses ‘were produced by any party and no oral testimony was — taken. In the District’ Court, the Respondents ‘moved ‘for summary judgment “on ‘the ground that all. genuine material - issues of fact are matters of judicial notice.” . The facts before the trial. judge were not in dispute. As he stated in his Memorandum: . all parties saree that there is no genuine issue of material fact . & With all the primary facts in the- naan upon,» a Po oe jury. The question involved an. appeal was Whether the “a trial court erred in the amount at which it fixed the plain- . tiff’s eqmpensation.* The Circuit Coyrt of Appeals, “Third Cireuit, said? sy re a eo The rule does not operate, however, to entrench withe like finality the inferences or conclusions drawn by ical ‘ the trial court from its fact findings. And so, while , - accepting the facts competently found. by the trial «— ' court as correct, an appellate court remains free to | , ‘draw the ultimate inferences and conclusions which, - - in its opinion, bea, mye reasonably induce. Such — was the law prior to the promulgation of the Rules ~ of Civil Procedure:. Brown v. United States,.3 Cir., 95-F.2d 487, 490; Dunn v. Trefry, 1-Cir., 260 F. 147, -148. The new Rules have’ worked no change in this regard, or with respect to the ulti@ete conclusions in . _ jury-waived cases in particular, § In. Pnited States v. United States Gypsum "Co. 333 U. S.“ 364 (1948), this: Court had before it.a factya] sit- - Giation similar, on the question here involved, to the factual situation in the case at‘bar. = . In explanation of its action in ‘overturning ‘the finding - of the trial court and substituting its own. oppesite con- clusion, this Court (pages. 394 and 395) said: | / In so far as this finding [Finding 118] and ‘others * to which we shall refer are inferences drawn from - 5 documents" or undisputed facts, heretofore described ‘or sét out, Rule 52(a) of@the Rules of Civil Proce- ' dure is applicable. That rule prescribes that findings | of fact. in actions tried without a jury, “shall not. be, «get. aside unless clearly errongous, and due regard “shall be given to the opportuHity of the ‘trial court to judge of: the credibility of the witnesses.” It was. intended, in all actions tried upoh the facts without. -_ jury, to make applicable the then prevailing equity | meng [Citing cases]. S§Sin¢e judicial’ review of. ndings of trial courts does not have the statutory or-constitutiénal limitations ‘of findings by adnfinis- | — {rative agencies [Citing cases] or*by a jury,’[Citing eases} this Court may reverse findings of fact by a ¢ s ae ° ‘ say that all genuine, material issues of fact are matters of judicial notice about which there canbe no dispute. and that defendants should have judgment, since the plain- tiffs’ efforts were unsuccessful in bringing about distribu- ‘tion of the fund which their litigation contemplated and since plaintiffs were not retained by these movants, all. . as more fully appears in the attached “Memorandum of Points and Authorities. ; HOGAN & HARTSON eat By Paul R. Connolly /s/ 810 Colorado a. Washimgton 5, D.C. Frank S. Sever /s/- 510 Corbett Building Portland, Oregon a Attorneys for the Oregon | ‘County Defendants, : except Clackamas, County, i : | Oregon. | fat / 20 (CERTIFICATE OF SERVICE) a) MA --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1508%3A4. Public record. Not legal advice.