Opposition Brief — Eitan Sobel, Petitioner v. City of Rutland, Vermont

No. 17-1541

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------EITAN SOBEL,

Petitioner,

v.

CITY OF RUTLAND, VERMONT,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of Vermont

-----------------------------------------------------------------BRIEF FOR THE RESPONDENT IN OPPOSITION

-----------------------------------------------------------------EDWARD G. ADRIAN

Counsel of Record

MONAGHAN SAFAR DUCHAM PLLC

156 Battery Street

Burlington, Vermont 05401

eadrian@msdvt.com

(802) 660-4735

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Whether this Court has jurisdiction under 28

U.S.C. § 1257(a) to review this matter, as the Petitioner

during the course of the state court proceedings failed

to properly present his claim pursuant to the United

States Constitution.

Whether an appeal from a state small claims decision, that the Vermont Supreme Court declined to review, where the intermediate appellate court found

that after having been given a full and fair opportunity

to present and argue evidence, the Petitioner completely and totally failed to prove his case, involves an

important question of federal law that this Court

should review pursuant to the Rules of the Supreme

Court of the United States 10(c).

ii

TABLE OF CONTENTS

Page

Opinions Below ....................................................

1

Jurisdiction ..........................................................

1

Introduction .........................................................

1

Statement ............................................................

5

Argument .............................................................

7

Conclusion............................................................ 17

iii

TABLE OF AUTHORITIES

Page

CASES:

Adams v. Robertson, 520 U.S. 83 (1997) ................... 8, 9

Board of Airport Com’rs of City of Los Angeles v.

Jews for Jesus, Inc., 482 U.S. 569 (1987) ................16

Buttolph v. Erikkson, 648 A.2d 824; 160 Vt. 618

(1993) .........................................................................6

Cheung v. Eighth Judicial Dist. Court, 121 Nev.

867, 124 P.3d 550 (2005) .........................................14

Cross v. Church, 446 U.S. 902 (1980) .........................14

Ellis v. Dixon, 349 U.S. 458 (1955) ...............................9

Fisher v. City of Berkeley, Cal., 475 U.S. 260

(1986) .......................................................................16

Hollingsworth v. Perry, 558 U.S. 183 (2010) ..............13

Hudson v. U.S., 522 U.S. 93 (1997) .............................16

In re Handy, 764 A.2d 1226; 171 Vt. 336 (2000) ..........6

Kansas v. Carr, ___ U.S. ___, 136 S.Ct. 633 (2016) ....... 13

Kennedy v. Plan Adm’r for DuPont Sav. and Inv.

Plan, 555 U.S. 285 (2009) ........................................16

McDonald v. City of Chicago, Ill., 561 U.S. 742

(2010) .......................................................................14

McNeill v. United States, 563 U.S. 816 (2011) ...........16

Minneapolis & St. Louis R. Co. v. Bombolis, 241

U.S. 211 (1916) ........................................................14

Musacchio v. U.S., ___ U.S. ___, 136 S.Ct. 709

(2016) .......................................................................16

iv

TABLE OF AUTHORITIES – Continued

Page

Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

388 U.S. 395 (1967) .................................................16

State v. Lee, 2007 VT 7, 181 Vt. 605, 924 A.2d 81

(2007) .........................................................................9

State v. Ovitt, 2005 VT 74, 178 Vt. 605, 878 A.2d

314 (2005) (mem.) ...................................................10

Stewart Organization, Inc. v. Ricoh Corp., 487

U.S. 22 (1988) ..........................................................16

Street v. New York, 394 U.S. 576 (1969)........................8

Theoharous v. Deer Run Shores Property Owners

Association, Inc., 459 U.S. 899 (1982) .....................14

Webb v. Webb, 451 U.S. 493 (1981) ............................ 8, 9

Whitehouse v. Six Corporation, 40 Cal. App. 4th

527, 48 Cal.Rptr.2d 600 (Cal.Ct.App.1995) ....... 14, 15

FEDERAL AUTHORITIES:

28 U.S.C. § 1257 ............................................................8

28 U.S.C. § 1257(a) .................................................... 1, 7

Sup. Ct. Rule 10 ..........................................................13

Sup. Ct. Rule 10(a) ......................................................13

Sup. Ct. Rule 10(b) ......................................................13

Sup. Ct. Rule 10(c) ................................................ 12, 13

v

TABLE OF AUTHORITIES – Continued

Page

VERMONT AUTHORITIES:

V.R.A.P. 6(b) .............................................................. 4, 7

V.R.C.P. 52(c) .................................................................7

V.R.S.C.P. 1(a) ......................................................... 5, 15

V.R.S.C.P. 4 ....................................................................5

V.R.S.C.P. 5(a) ...............................................................5

V.R.S.C.P. 6(a) ...............................................................5

V.R.S.C.P. 6(b) ...............................................................5

V.R.S.C.P. 10(a)(1) .........................................................6

V.R.S.C.P. 10(e) ..............................................................4

V.R.S.C.P. 10(e)(1) ..................................................... 4, 7

12 V.S.A. § 5538.............................................................4

1

BRIEF FOR THE RESPONDENT IN OPPOSITION

------------------------------------------------------------------

OPINIONS BELOW

The order of the Vermont Superior Court, Rutland

Unit, Small Claims Division (Pet. App. 1-5), Docket No.

159-6-17, dated September 28, 2017. The Decision on

Appeal of the Vermont Superior Court, Rutland Unit,

Civil Division (Pet. App. 6-7), Docket No. 527-10-17

Rdcv, dated March 15, 2018. The Entry Regarding Motion to Reconsider of the Vermont Superior Court, Rutland Unit, Civil Division (Pet. App. 8), Docket No. 52710-17 Rdcv, dated March 21, 2018. The Entry Order of

the Vermont Supreme Court (Pet. App. 9), Docket No.

2018-114, dated April 18, 2018.

------------------------------------------------------------------

JURISDICTION

The Petitioner claims jurisdiction pursuant to 28

U.S.C. § 1257(a) (Pet. 1). For the reasons set forth below, the Respondent disagrees that the Court has jurisdiction to review this matter pursuant to 28 U.S.C.

§ 1257(a), and the Petitioner’s writ of certiorari should

be dismissed for want of jurisdiction.

------------------------------------------------------------------

INTRODUCTION

The Petitioner has not set forth a compelling reason, or even a remotely viable reason, as to why this

2

Court should grant certiorari from the decision of the

Vermont Small Claims Division and appeal to the Vermont Civil Division and Vermont Supreme Court below.

The instant case arises from a complaint filed by

the Petitioner in the Vermont Small Claims Division

on June 14, 2017. The Petitioner voluntarily chose the

forum to file suit, even though he later alleged during

the course of the small claims proceedings that his

damages exceeded the jurisdictional amount of

$5,000.00 that the Small Claims Division could award.

Petitioner specifically stated at the small claims hearing that he did not want to spend the time and energy

to pursue his claim in a different forum and he had

trouble finding legal representation to assist with his

claim. Without specifically delineating a claim of negligence, the Petitioner argued that the City of Rutland

was responsible for the damage caused to his rental

property as the result of the City’s sewer main becoming clogged and backing up into the basement of the

Petitioner’s property.

At the small claims hearing, the Petitioner was

provided with a full and fair opportunity to present the

evidence related to his case. He testified on his own behalf but called no other witnesses, nor did he inform

the small claims court that he had any other witnesses

he intended to call as part of his presentation. At the

conclusion of the Petitioner’s case, the Respondent

moved to dismiss the complaint and renewed this motion to dismiss after the Petitioner had a chance to present oral argument to the court. The Small Claims

3

Division ended up dismissing the matter before the direct testimony of the Respondent’s witness was finished and before the Petitioner had an opportunity to

cross-examine the Respondent’s witness. At no point in

the proceedings before the Small Claims Division did

the Petitioner invoke the United States Constitution

or any part thereof, nor did he argue that he was being

deprived of any right to cross-examine the Respondent’s expert witness.

In his initial appeal filed on or about November

23, 2017 with the Vermont Superior Court, Civil Division, the Petitioner did not invoke the United States

Constitution or any part thereof.1 In Petitioner’s reply

brief to the Respondent’s response dated on or about

December 8, 2017, the Petitioner did not invoke the

United States Constitution or any part thereof. The

first time the Petitioner invoked the United States

Constitution was in his Motion to Reconsider filed with

the Vermont Superior Court, Civil Division on or about

March 20, 2018. The Petitioner’s Motion to Reconsider

did not refer to any specific provision or section of the

United States Constitution or precedent that would

support his position that he was unjustly denied the

1

The entirety of the Petitioner’s Appeal stated: “While I was

sitting as the plaintiff in this case, I could not avoid the feeling

that this was not a fair hearing and that the Court had made its

decision prior to the hearing. It was most disturbing to hear the

court announcing its final judgment while the defendant was still

questioning the expert witness, Mr. Wennberg, and before the

plaintiff had an opportunity to cross examine [sic] the expert witness.”

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right to cross-examine the Respondent’s witness at the

small claims proceeding.

The Petitioner invoked the United States Constitution in both his docketing statement of March 27,

2018 and in his brief to the Vermont Supreme Court

submitted on or about March 27, 2018, but again failed

to delineate any specific provisions of the Constitution

or precedent that supported his position regarding the

cross-examination of defense witnesses in a small

claims proceeding.

On appeal to the Vermont Supreme Court, the Respondent argued that the Petitioner failed to request

permission to appeal the decision of the Vermont Superior Court, Civil Division as required for small

claims appeals by Vermont Rule of Appellate Procedure (V.R.A.P.) 6(b) and Vermont Rules of Small Claims

Procedure (V.R.S.C.P.) 10(e)(1). The Vermont Supreme

Court’s Entry Order stated “Plaintiff ’s motion for permission to appeal the above-captioned small claims action is denied. See 12 V.S.A. § 5538 (providing that ‘[n]o

appeal as of right exists to the Supreme Court’ in small

claims action); V.R.S.C.P. 10(e).” (Pet. App. 9).

The Petitioner claims in his Petition that he “appealed to the Superior Court of Rutland based on his

constitutional right to cross-examine and confront a

witness.” (Pet. 4). This is a misstatement of fact. As a

result of the Petitioner’s failure to either timely or adequately raise his claims pursuant to the United

States Constitution, the Court is without jurisdiction.

Even if the Petitioner were able to establish

5

jurisdiction, the decision of the Vermont Small Claims

Division judge to end the proceedings before granting

the Petitioner the opportunity to cross-examine the Respondent’s witness is not an important question of federal law. The Petitioner’s invocation of the United

States Constitution, only upon a request to reconsider

the Civil Division’s decision on appeal, does not transform the issue raised into an important question of federal law.

------------------------------------------------------------------

STATEMENT

The Vermont Small Claims Court proceedings are

a creation of Vermont Statute and the corresponding

Vermont Rules of Small Claims Procedure (V.R.S.C.P).

The V.R.S.C.P. are “construed to secure the simple, informal, and inexpensive disposition of every action

subject to them.” V.R.S.C.P. 1(a). Motion practice in

small claims proceedings is mostly prohibited except

for matters related to default, jurisdiction and extending timeframes. V.R.S.C.P. 4. Plaintiffs waive the ability to have a trial by jury when they bring a small

claims action. V.R.S.C.P. 5(a). Vermont small claims trials are held in a “summary manner” and when a trial

is held before a judge, the Vermont Rules of Evidence

are inapplicable, except for those regarding privilege.

V.R.S.C.P. 6(a), (b). The Petitioner specifically chose to

file his action in the Small Claims Division, precisely

because of the informality of the proceedings.

6

The Petitioner is a physician employed by the Rutland Regional Medical Center. (Pet. App. 1). The basement of Petitioner’s rental property was flooded as the

result of one of the City of Rutland’s sewer mains becoming blocked and backing up. (Pet. App. 2). The Respondent’s witness established at the trial that the

City had no prior notice of a problem in the sewer main

where the blockage occurred in this instance. (Pet. App.

3). The Small Claims Division held that the Petitioner’s claim failed because he failed to prove his

claim of negligence against the City because he did not

prove that the City breached any duty owed to him.

Appeals from small claims proceedings go to the

Civil Division of the court where the small claims proceeding was held. V.R.S.C.P. 10(a)(1). This appeal is an

appeal as of right. See V.R.S.C.P. 10(a)(1) (“[a]ny party

to a small claims action may appeal the judgment to

the civil division.”). On appeal, the Civil Division affirmed the decision of the Small Claims Division, finding that “Plaintiff ’s evidence fell far short of what was

required to establish a duty on the part of Defendant.”

(Pet. App. 6). The Civil Division, in upholding the decision of the Small Claims Division, albeit for slightly

different reasons, relied on the Vermont Supreme

Court holdings in In re Handy, 764 A.2d 1226, 1234;

171 Vt. 336, 343 (2000) and Buttolph v. Erikkson, 648

A.2d 824, 826; 160 Vt. 618, 619-20 (1993) for the proposition that “[o]n appeal, the court may affirm the trial

court on any ground that fairly appears in the record

below.” (Pet. App. 7). The Civil Division also held that

while it may have been error for the Small Claims

7

Division to conclude the proceedings before allowing

the Petitioner the chance to cross-examine the City’s

witness, any error was “not reversible error” since the

Small Claims Division could just as easily have

granted judgment to the Respondent pursuant to

V.R.C.P. 52(c) based on the Petitioner’s failure to meet

his burden of proof. (Pet. App. 7). The Civil Division reiterated this decision on the Petitioner’s Motion to Reconsider, holding that “Plaintiff had ample opportunity

to present his evidence. . . . notwithstanding the trial

court’s error, its judgment is amply supported on alternate grounds that appear on the face of the record below.” (Pet. App. 8).

Without specifically requesting permission to appeal as required by V.R.S.C.P. 10(e)(1) and V.R.A.P.

6(b), the Petitioner appealed to the Vermont Supreme

Court and filed a merits brief. Nevertheless, the Vermont Supreme Court, without reaching the substance

of any of the Petitioner’s claims, denied what it termed

his “motion for permission to appeal.” (Pet. App. 9).

This appeal followed.

------------------------------------------------------------------

ARGUMENT

1. The Court lacks jurisdiction to hear this matter pursuant to its holdings interpreting 28 U.S.C.

§ 1257(a) that allows for final judgments or decrees to

be reviewed by the Court when “rendered by the highest court of a State in which a decision could be had . . .

where any title, right, privilege, or immunity is

8

specially set up or claimed under the Constitution . . .

or any commission held or authority exercised under,

the United States.”

In the present instance, the Petitioner failed to

properly raise any claim under the United States Constitution as part of the state court proceedings. “This

Court has frequently stated that when ‘the highest

state court has failed to pass upon a federal question,

it will be assumed that that omission was due to want

of proper presentation in the state courts, unless the

aggrieved party in this Court can affirmatively show

the contrary.’ ” Webb v. Webb, 451 U.S. 493, 495 (1981)

(quoting Street v. New York, 394 U.S. 576, 582 (1969))

(remaining citations omitted). “It is a long settled rule

that the jurisdiction of this Court to re-examine the final judgment of a state court can arise only if the record as a whole shows either expressly or by clear

implication that the federal claim was adequately presented in the state system.” Id. at 496-97 (citations

omitted).

The Court has expounded on this basis holding

“under 28 U.S.C. § 1257 that we will not consider a petitioner’s federal claim, unless it was either addressed

by, or properly presented to, the state court that rendered the decision we have been asked to review.” Adams v. Robertson, 520 U.S. 83, 86 (1997) (citations

omitted). “When the highest state court is silent on a

federal question before us, we assume that the issue

was not properly presented, and the aggrieved party

bears the burden of defeating this assumption, by

demonstrating that the state court had ‘a fair

9

opportunity to address the federal question that is

sought to be presented here.’ ” Id. at 86-7 (quoting

Webb, at 501) (citations omitted).

Past decisions demonstrate that the Court has “focused on the need for petitioners either to establish

that the [federal question] claim was raised ‘at the

time and manner required by the state law,’ or to persuade us that the state procedural requirements could

not serve as an independent and adequate state-law

ground for the state court’s judgment. . . . In other

cases, we have described a petitioner’s burden as involving the need to demonstrate that it presented the

particular claim at issue here with ‘fair precision and

in due time.’ ” Adams, at 87 (quotations and citations

omitted).

Where the highest court of a state denies a “motion for leave to appeal without stating any ground for

its decision. . . . [This Court] must ascertain whether

that court’s decision ‘might’ have rested on a nonfederal ground, for if it did we must decline to take jurisdiction.” Ellis v. Dixon, 349 U.S. 458, 459 (1955)

(citations omitted). The Court approaches this issue

“first by considering what the petitioner has alleged as

a basis for the constitutional issues which he asks us

to review on the merits.” Id.

The Vermont Supreme Court has made clear that

when a party fails to raise an issue related to the

United States Constitution at the trial court stage,

they “will not consider it on appeal.” State v. Lee, 2007

VT 7, ¶14, 181 Vt. 605, 608, 924 A.2d 81, 86 (2007)

10

(citing State v. Ovitt, 2005 VT 74, ¶13, 178 Vt. 605, 878

A.2d 314 (2005) (mem.)). “An issue is not preserved for

appeal unless a party raises it with specificity and clarity below, thereby ensuring that the trial court will

have an opportunity to fully develop the relevant facts

and to reach considered legal conclusions.” State v.

Ovitt, 2005 VT 74, ¶13, 178 Vt. 605, 878 A.2d 314 (2005)

(mem.).

It is clear from the record of the Small Claims Division hearing that the Petitioner did not once mention

the United States Constitution or his ability to crossexamine the Respondent’s witness after the Petitioner

had presented his case. The Petitioner did not once

mention the United States Constitution in his appeal

to the Vermont Superior Court, Civil Division or in his

reply to the Respondent’s brief. The trial court in this

instance never had the opportunity to fully explore, or

explore at all, any concerns that the Petitioner had

pursuant to the United States Constitution. There was

no record developed at the trial court in respect to the

Petitioner’s concerns or his ability to cross-examine the

Respondent’s witnesses. The Petitioner failed to

properly present any issue to the trial court regarding

the United States Constitution.

The Vermont Supreme Court in this instance

failed to pass upon the federal question regarding the

United States Constitution that the Petitioner only

raised after both the Small Claims Division and Civil

Division had issued their decisions. The Vermont Supreme Court did not address the Petitioner’s claim pursuant to the United States Constitution. Precedent

11

dictates that the Vermont Supreme Court will not take

up issues related to the United States Constitution,

unless the issue was raised in the trial court. The Petitioner failed to invoke the United States Constitution

in the Small Claims Division. The Court should assume that the omission of the Vermont Supreme Court

to pass on the Petitioner’s later invocation of the

United States Constitution is due to want of proper

presentation. The Petitioner’s petition is devoid of any

claim that he raised his concerns pursuant to the

United States Constitution with the trial court and he

will be unable to affirmatively demonstrate the contrary to the Court.

In the alternative, it may be the case that, even

though the Petitioner’s filing was referred to by the

Vermont Supreme Court as a “motion for permission

to appeal” (Pet. App. 9) the Vermont Supreme Court did

not consider the Petitioner’s appeal a proper request

for permission to appeal as required by the V.R.A.P.

and V.R.S.C.P, as he did not ask for permission to appeal, but instead filed a merits brief.

Petitioner’s claim pursuant to the United States

Constitution was not submitted to the Vermont Supreme Court with fair precision and in due time, or in

the time and manner required by Vermont law, nor will

Petitioner be able to demonstrate that the Vermont Supreme Court’s procedural requirements are not an adequate and independent state-law ground for the

Vermont Supreme Court’s judgment. Based on the

state of the record, the Court should conclude that at a

minimum, the Vermont Supreme Court’s denial of the

12

Petitioner’s appeal might have rested on a nonfederal

ground based on the fact that the Petitioner did not

raise the United States Constitution in the trial court,

nor did he follow the appropriate procedure necessary

to request permission to appeal a decision of the Vermont Civil Division’s review of the Small Claim’s Division.

As the decision of the Vermont Supreme Court

might have rested on a nonfederal ground and because

the Petitioner will be unable to demonstrate to the contrary, the Court must decline to take jurisdiction and

dismiss the appeal for want of jurisdiction.

2. Even if the Court finds that there is sufficient

jurisdiction to entertain the Petitioner’s claims, the Petitioner fails to demonstrate how the decision of the

Vermont Small Claims Division; the subsequent affirmance by the Vermont Civil Division; and the Vermont

Supreme Court’s refusal to review the small claims decision is “an important question of federal law that has

not been, but should be, settled by this Court, or has

decided an important federal question in a way that

conflicts with relevant decisions of this Court.” Supreme Court Rule 10(c). The Petitioner does not cite or

refer to even a single decision of this Court or of any

other court in his petition. Without citation to a single

case of this Court or any other, the Petitioner has utterly failed to demonstrate that there is either a conflict among the Federal Courts of Appeals on any issue

presented, nor is he able to demonstrate that the decision of any Vermont court in the record below conflicts

with a decision of this Court.

13

The Petitioner attempts to characterize the Small

Claims Division decision below as one of national importance by inserting a claim that the maintenance of

Rutland’s sewer system is governed by the “recommendations of the EPA.” (Pet. 6). Petitioner’s misplaced attempt to recast his small claims action as a federal

question of national importance does not pass muster

or the prior jurisprudence of the Court. The question

before the Court is whether Petitioner should have

been allowed to cross-examine a defense witness after

Petitioner concluded his case in a small claims trial,

where the Vermont Civil Division found on appeal that

“so complete was the failure of proof that it would have

been reversible error for the trial court to have found

that the Plaintiff had established a duty.” (Pet. App. 8).

“There is no conflict among the state or federal courts

regarding [this issue] Cf. this Court’s Rules 10(a)(b). . . . [It] does not implicate an open ‘important question of federal law.’ Cf. Rule 10(c). Nor do the procedures below clearly conflict with any precedent from

this Court. Cf. ibid.” Hollingsworth v. Perry, 558 U.S.

183, 203 (2010) (Breyer, J., dissenting).

“Even where a state court has wrongly decided an

‘important question of federal law,’ Sup. Ct. Rule 10, we

often decline to grant certiorari, instead reserving such

grants for instances where the benefits of hearing a

case outweigh the costs of so doing.” Kansas v. Carr,

577 U.S. ___, 136 S.Ct. 633, 647 (2016) (Sotomayor, J.,

dissenting). As set forth above, the state courts did not

decide any question of federal law because it was not

properly presented. The Petitioner has not outlined

14

how the issue presented constitutes an important

question of federal law. Even if the Petitioner had successfully navigated these two hurdles (and he has not)

it is clear that the benefits of hearing this case do not

outweigh the costs of so doing.

This Court’s jurisprudence in respect to small

claims proceedings is limited. The two readily discernable instances of an appeal from a small claims court

to this Court both ended in certiorari being denied for

“want of jurisdiction.” See Cross v. Church, 446 U.S. 902

(1980); Theoharous v. Deer Run Shores Property Owners Association, Inc., 459 U.S. 899 (1982). The Court has

opined on the fact that its own jurisprudence obviated

the need for a jury trial in small claims courts. McDonald v. City of Chicago, Ill., 561 U.S. 742, 784, fn. 30

(2010) (“As a result of Bombolis [Minneapolis & St.

Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)], cases

that would otherwise fall within the Seventh Amendment are now tried without a jury in state small claims

courts. See, e.g., Cheung v. Eighth Judicial Dist. Court,

121 Nev. 867, 124 P.3d 550 (2005) (no right to jury trial

in small claims court under Nevada Constitution).”).

Since small claims jurisprudence before this Court

is nearly non-existent, state court jurisprudence may

prove informative. “A litigant may effectively waive

certain constitutional and procedural rights by choosing an alternative forum that provides an expeditious

and inexpensive means of resolution of a case.”

Whitehouse v. Six Corporation, 40 Cal. App. 4th 527,

536, 48 Cal.Rptr.2d 600, 605 (Cal.Ct.App.1995). An “example is the small claims court where, in exchange for

15

speedy, inexpensive procedures, a plaintiff waives his

or her right to discovery, right to an attorney, damages

in excess of $5,000, trial by jury, and appeal.” Id. at

536-37, 606.

It was the Petitioner who in this instance chose

the forum of the Small Claims Division. When Petitioner did so he knew or should have known of the limitations to bringing a claim in the Vermont Small

Claims Division “the simple, informal, and inexpensive

disposition of every action subject to them.” V.R.S.C.P.

1(a) (almost no discovery or motion practice; waiver of

jury trial by plaintiff; summary proceedings; inapplicability of rules of evidence). The Petitioner instead has

attempted to turn a simple small claims complaint into

a matter of national importance. This is not the purpose of small claims courts.

Small claims courts serve an important purpose in

acting as a release valve to the pressures exerted on

higher courts in any jurisdiction. Small claims courts

provide an informal, but structured, forum to determine cases of low monetary value that, while not rising

to levels of great importance, are meaningful to the litigants. Subjecting a small claims proceeding to formal

review by this Court belies the purpose of a small

claims forum. Even if the Petitioner had properly

raised an important issue of federal law below, the benefits of reviewing that issue on appeal from a small

claims proceeding do not outweigh the costs of that review. The petition for a writ of certiorari should be denied.

16

3. Petitioner argues that the Vermont Civil Division erred in its decision on appeal when it asserted

that the “Plaintiff ‘did not meet the burden of proof ’ ”

in the proceedings below, because the decision of the

Vermont Civil Division sitting as an appellate court,

affirmed the decision of the Small Claims Division on

a different ground. (Pet. 7). The Petitioner’s position in

respect to appellate court review is without merit. As

the Court recently stated, “[a]n appellate court’s function is to revisit matters decided in the trial court.”

Musacchio v. U.S., ___ U.S. ___, 136 S.Ct. 709, 716

(2016) (emphasis in original). This Court need go no

further than its own holdings to confirm that appellate

courts routinely affirm decisions below on different

grounds or for different reasons. See, e.g., McNeill v.

United States, 563 U.S. 816 (2011); Kennedy v. Plan

Adm’r for DuPont Sav. and Inv. Plan, 555 U.S. 285

(2009); Hudson v. U.S., 522 U.S. 93 (1997); Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22 (1988);

Board of Airport Com’rs of City of Los Angeles v. Jews

for Jesus, Inc., 482 U.S. 569 (1987); Fisher v. City of

Berkeley, Cal., 475 U.S. 260 (1986); Prima Paint Corp.

v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).

The Vermont Civil Division was well within its authority when it affirmed the decision of the Small

Claims Division on different grounds. The petition for

a writ of certiorari should be denied.

------------------------------------------------------------------

17

CONCLUSION

The petition for a writ of certiorari should be denied because the Court lacks jurisdiction to hear this

matter. Wholly in the alternative, even if there is jurisdiction to review this matter, the petition for a writ of

certiorari should be denied because the Petitioner fails

to raise an important question of federal law that

should be decided by this Court or that conflicts with a

prior holding of the Court. The decision of the Vermont

Civil Division to uphold the Small Claims Division on

different grounds does not raise any question reviewable by this court and the petition for a writ of certiorari

should be denied.

Respectfully submitted,

EDWARD G. ADRIAN

MONAGHAN SAFAR DUCHAM PLLC

Attorneys for the Respondent,

City of Rutland, Vermont

JUNE 2018