Reply Brief — Spector Freight System, Inc., of Illinois v. Schwartz

| MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM 1975

No. 75-1284

SPECTOR FREIGHT SYSTEM, INC. OF ILLINOIS,

Petitioner,

Vs.

ROY SCHWARTZ,

Respondent.

PETITIONER’S REPLY TO RESPONDENT'S

BRIEF IN OPPOSITION

George M. Roehrdanz

HOKE, ROEHRDANZ, BIGELOW

& CHAMBERLAIN, Ltd.

212 Ridgewood Avenue

Minneapolis, MN 55403

Phone: (618) 871-3803

Attorneys for Petitioners

1976—Northwest Brief Printing Co., 316 Chicago Avenue, Minneapolis 55415—338-5078

TABLE OF CONTENTS

Page

Petitioner’s Reply to Respondent's Brief in Opposition 1

2 9

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TABLE OF AUTHORITIES

Cases:

American Fire Insurance Co. v. King Lumber, 39 S.

Ct. 431, 24 U.S. 2, 63 L. Ed. 810 (1919) ....... 5

Chambers v. Baltimore and O. R. Company, 28 S. Ct.

oe, See Uae 148, SSE. BG. 143 2... ccccccccccs 2

Crowell v. Randell, 35 U.S. 368 ................ 4

Dewey v. City of Des Moines ,19 S. Ct. 379, 173 USS.

OO Ene 4-5

Elwell v. County of Hennepin, 221 N.W. 2d 538, --

gg a ee na 8

Jenkins v. Georgia, 94 §. Ct. 2750, 418 U.S. 153, 41

i ES on ckdapesvtcccvecexaaes ©

Kirckof Plumbing and Heating Co. v. State of Minne-

sota, — Minn. —, — N.W. 2d —, filed April 2,

Pt take bene Ce VA bSEkS bhSsisecee wieeh ees. 6

Manhatten Life Insurance Company of New York v.

Cohen, 234 U.S. 123, 134, 34 S. Ct. 874, 877, 58

Se RR ree ere te 3

People of State of Illinois v. Board of Education, 68

S. Ct. 461, 333 U.S. 203, 92 L. Ed. 648, 2 A.L.R.

i Sa re a Lo 2

Raley v. State of Ohio, 79 S. Ct. 1257, 360 U.S. 423,

8k ef A ee, Pen:

Rule:

Rule 35, Supreme Court Rules .................. 6

In The

Supreme Court of the Gnited States

OCTOBER TERM 1974

No. 75-1284

SPECTOR FREIGHT SYSTEM, INC. OF ILLINOIS,

Petitioner,

VS.

ROY SCHWARTZ,

Respondent.

PETITIONER’S REPLY TO RESPONDENT'S

BRIEF IN OPPOSITION

TO THE HONORABLE CHIEF JUSTICE AND ASSO-

CIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES OF AMERICA:

Petitioner submits this reply brief to specifically contra-

dict significant portions of Respondent’s Brief in Opposition

submitted to the Court subsequent to the filing of our Peti-

tion for Writ of Certiorari. In Respondent’s brief challenge

is made to the jurisdiction of this Court to consider our

Petition. This objection is without merit.

In substance, Respondent alleges that the Federal ques-

tions presented to this Court were not timely raised in the

lower court. Even assuming, arguendo, that the Federal

questions were not timely raised, that objection is moot and

irrelevant in view of the fact that the Minnesota Supreme

2

Court considered and expressly decided the Federal ques-

tions in their opinion.

The U. S. Supreme Court has held that it is irrelevant

whether Federal questions were raised at any time by the

Petitioner if the lower court actually decided the matter in

its opinion. In Chambers v. Baltimore and O. R. Company,

28 S. Ct. 34, 207 U.S. 142, 52 L. Ed. 143, this Court held

that the objection that the Federal question is not properly

and seasonably raised in the state court is not available to

defeat the jurisdiction of the Supreme Court of the United

States where it clearly appears from the opinion of that

court that the Federal question was assumed to be an issue,

was decided against the claim of Federal right, and that the

decision of the question was essential to the judgment ren-

dered. In Chambers, the Court stated at Page 35 S. Ct..

“The defendant objects to our jurisdiction to re-examine the

judgment because the Federal question was not properly

and seasonably raised in the courts of tie state. But clear-

ly, it unmistakably appears from the opinion of the Supreme

Court that the Federal question was assumed to be an is-

sue, was decided against the claim of Federal right, and

that the decision of the question was essential to the judg-

ment rendered. This is enough to give this Court the

authority to re-examine that question on writ of error.”

To further support this position, in People of State of

Illinois v. Board of Education, 68 S. Ct. 461, 333 U.S. 203,

92 L. Ed. 648, 2 A.L.R. 2d 1338, the court stated at Page

463 S. Ct. and Page 207 U.S., “A third ground for the

motion is that the appellant failed to properly present in the

State supreme court her challenge that the state program

violated the Federal Constitution. But in view of the ex-

press rulings of both state courts in this question, the argu-

3

ment cannot be successfully maintained. The motion to dis-

miss the appeal is denied.”

In Raley v. State of Ohio, 79 S. Ct. 1257, 360 U.S. 423,

3 L. Ed. 2d 1344, the Court stated at Page 1265 S. Ct., and

436 U.S., “There can be no question as to the proper

presentation of a Federal claim when the highest state

court passes on it. See Manhatten Life Insurance Company

of New York v. Cohen, 234 U.S. 123, 134, 34 S. Ct 874,

877, 58 L. Ed. 1245.”

In Cohen, the Court stated at Page 877, “Let it be con-

ceded, as we think it must be, where the record leaves no

doubt that rights under the Full Faith and Credit clause

were essentially involved and were necessarily passed upon,

there would be jurisdiction to review even though such

rights had not been expressly asserted below. . . . The right

to review under such condition being in effect for the result

of the elemetnary rule that it is irrelevant to inquire how

and when a Federal question was raised in a court below

when it appears that such question was actually considered

and decided.” (Emphasis added)

The above holdings are strengthened by the fact that

this issue was considered very recently in Jenkins v. Geor-

gia, 94 S. Ct. 2750, 418 U.S. 153, 41 L. Ed. 2d 642

(1974). In Jenkins, the Court found that where a state

supreme court reached and decided a Constitutional issue,

the issue could be considered by the United States Supreme

Court whether or not the issue was raised by the appellant

on state appeal. In that case, Justice Rehnquist stated at

Page 2753 S. Ct., 157 U.S., “We now turn to the question

of whether appellant’s exhibition of the film was protected

by the Ist and 14th Amendments, the question which ap-

pellee asserts is not properly before us because appellant

4

did not raise it on his state appeal. But whether or not ap-

pellant argued this Constitutional issue below, it is clear

that the Supreme Court of Georgia reached it and decided

it. That is sufficient under our practice. Raley v. Ohio,

supra.”

Clearly, the above holdings present conclusive authority

for the proposition that there is no merit to the contention

of the Respondent that the Petitioner did not seasonably

raise the Federal questions, since it is deemed to be irrele-

vant in view of the fact that the Minnesota Supreme Court

considered and decided the Federal questions involved.

The above holdings also have substantial foundation in

the history of this Court. As early as 1836 Crowell v. Ran-

dell, 35 U.S. 368, the Court held that in determining

whether the record in a case from the state court shows that

the point giving jurisdiction to the Supreme Court was

raised and decided in the state court, it is not indispensable

that it should appear in the record in totidem verbis or by

direct and positive treatment. The Court held in that case

that it is sufficient that if it is clear from the facts stated,

by just and necessary inference, that the question was made

and that the state court must, in arriving at its judgment,

have decided that question, then jurisdiction is proper.

There is no question that the Minnesota Court intended to

consider the Federal questions when they specifically re-

ferred to them in their opinion. Clearly, the Minnesota

Court took the position that there were no Constitutional

barriers to the conflicts rule that they used in this case.

Consequently, a determination of the Constitutional ques-

tions was made by the lower court and this Court has juris-

diction.

This Court held in Dewey v. City of Des Moines, 19 S.

5

Ct. 379, 173 U.S. 193, 43 L. Ed. 655, that if the decision

of the state court was such that the judgment and its

necessary effect was a denial of the right claimed or re-

ferred to, this is sufficient to grant Federal jurisdiction,

even though the state did not notice the question. In our

case, the record is much stronger than Dewey since the

state supreme court actually decided the Federal problems

in their decision.

Clearly, the Minnesota Supreme Court, deciding the most

liberal holding ever before rendered by any state in the

Union, specifically considered the Federal implications of

what they were doing. For this reason, they specifically

stated in their opinion that their holding was not limited

by Federal Constitutional standards. The Crider case cited

by the Minnesota Court specifically considered the ques-

tion of full faith and credit. By citing and considering the

case of Home Insurance Co. v. Dick, the Minnesota Court

specifically considered the question of due process.

In American Fire Insurance Co. v. King Lumber, 39 S.

Ct. 431. 24 U.S. 2, 63 L. Ed. 810 (1919), this Court, con-

sidering a motion to dismiss on the grounds that the Feder-

al questions were not passed on by the courts of the state,

was denied because that proposition was disputed, and the

Court stated that justice would be better served by consider-

ing the question since it was in dispute. Here there can be

no dispute that the Federal questions were considered by

the lower court and passed on them in their opinion. But

even if there were, the matter that is raised is of such far-

reaching and important consequence that this Court should

consider the merits of it in order to better serve justice and

add stability to the conflict of laws rules. If Respondent

persists in his contention that this Court does not have jur-

6

isdiction, he is free at a later date to make a motion under

Rule 35 of the Supreme Court Rules.

Notwithstanding the above holdings that support the

proposition that timeliness of presenting the Federal ques-

tions is irrelevant where the state court considered and de-

cided the Federal questions, the record will show that

Petitioner did in fact timely raise all Federal objections.

Petitioner prevailed in the trial court level when the Min-

nesota District Court held that Indiana law applied to the

case. When the Minnesota Supreme Court reversed that

decision, applying the law that Petitioner contends was

unconstitutional, Petitioner filed a Petition for rehearing

with the Minnesota Supreme Court stating its Federal ob-

jections. Obviously, Petitioner would not object or raise

any Federal questions at the trial court level when it pre-

vailed on that issue. As soon as the Minnesota Court

abridged the Federal rights of the Petitioner, the Federal

questions were properly raised. It was at that time when

the Petitioner first became the initiating party and was

capable of presenting the Federal] objections. Petitioner

could not reasonably anticipate that the decision of the

lower court would be reversed by the Minnesota Court ex-

tending its conflicts rules further than any other state in the

Union. In Minnesota, a respondent in an appeal from a

trial court is not requi-ed to anticipate that he will be

reversed on appeal. This was the position of the Minnesota

Court most recently stated in Kirckof Plumbing and Heat-

ing Co. v. State of Minnesota, — Minn. —, — N.W. 2d

—., filed April 2, 1976.

The allegations in Respondent’s brief that our Petition

for rehearing was not timely filed and that the Petition

for Rehearing was denied for lack of jurisdiction are sim-

7

ply not true and unsupported by the record. An Order of

Justice James C. Otis of the Minnesota Court dated Sep-

tember 3, 1974, included in the Appendix, demonstrates

the time for filing our Petition for re-argument was specif-

ically extended. In the Order, Justice Otis stated, “IT IS

ORDERED that the time within which the Respondent's

Petition for Rehearing may be served and filed be and

hereby is extended to include September 30, 1974.” Clear-

ly, since Justice Otis of the Minnesota Court ordered the

extension of time to file our Petition for Rehearing, it can-

not be reasonably argued that the Petition was not timely

filed in the Minnesota Court. Rule 102 of the Rules of

Civil Appellate Procedure for Minnesota, which is the

same as Federal Appellate Rule 2, provides that the Su-

preme Court may suspend the requirement or provisions

of these rules on application of a party or on its own mo-

tion and may order proceedings in accordance with its

direction. Consequently, there can be no doubt that Jus-

tice Otis had the power to extend the time for filing our

Petition for Rehearing to September 30, 1974. Rule 102

is specifically set out in the Appendix.

The record included in this Appendix also demonstrates

that the Petition was filed within the time limits set by

Justice Otis, by a Notice of Filing dated September 27,

1974. The documents included in the Appendix also show

that the Petition for re-argument of Petitioner was denied

by the Minnesota Court on October 2, 1974. The October

2, 1974 Order of the Court states only that the Petitions

are denied; there is no statement that the Petition was dis-

missed for lack of jurisdiction as stated on Page 6 of Re-

spondent’s brief.

The allegation in Respondent’s brief that Petitioner is

lacking jurisdiction in the U. S. Supreme Court because of

a failure to give notice to the state Attorney General is

patently unmeritorious. The Rules of Court cited on Page

5 of Respondent’s brief specifically state that the notice

requirement only applies when an act of the legislature is

drawn in question. The question involved in this lawsuit is

an act of the court and the Rule of Notice is clearly not ap-

plicable to the Minnesota Court. Notwithstanding that im-

portant distinction, there is no merit to the contention that

the failure to give notice to the Attorney General is juris-

dictional as stated on Page 5 of Respondent’s brief. The

Minnesota decisions cited by Respondent for that position

have been specifically overruled by the Minnesota Court

in Elwell v. County of Hennepin, 221 N.W. 2d 538, —

Minn. — (1974), wherein the Court stated at Page 545

N.W. 2d, “We expressly overrule the Oak Center case and

hold that the failure to serve notice upon the Attorney Gen-

eral under the rules does not deprive this Court of juris-

diction on appeal.”

Respondent attaches weight to the fact that two Peti-

tions for Rehearing were decided in the case. However,

there were two Defendants in the case at the time the Su-

preme Court rendered its decision of August 2, 1974, and

each Defendant filed a Petition for Rehearing. As shown by

the letter of Petitioner’s counsel that Respondent included

in his brief, it was contemplated that SPECTOR FREIGHT

SYSTEM, INC. of Illinois would raise the Federal ques-

tions in its Petition for Rehearing. This is further support-

where he stated that “Respondent’s” Petition for Rehear-

ed by the Order of Justice Otis, dated September 3, 1974,

ing may be served and filed. In that Order, Justice Otis

is obviously referring to a single Respondent, as the nota-

9

tion at the top of the Order refers to SPECTOR FREIGHT

SYSTEM as “Respondent”, and it refers to CONSOLI-

DATED FREIGHTWAYS as “Respondent-Appellant”.

The letter of Petitioner’s counsel dated August 29, 1974,

and the Order of Justice Otis dated September 3, 1974,

clearly show that only one Petition for rehearing was filed

by Petitioner, even though each Petition for Re-argument

naturally contained the names of both the Defendants since

their positions were identical.

Respondent also attaches significance to the fact that

no Federal questions were raised in a cross-appeal by Peti-

tioner. The record shows that no such cross-appeal by Peti-

tioner was ever made. The record shows that only co-

Defendant CONSOLIDATED FREIGHTWAYS cross-ap-

pealed and there was no appeal taken by SPECTOR

FREIGHT. This is demonstrated by the notation in the

Order of Justice Otis dated September 3, 1974, included

in this Appendix, which shows that only CONSOLIDATED

FREIGHTWAYS was a cross-appellant.

Nor is there any merit to the suggestion that Petitioner

somehow waived its Federal objections by not raising any

Federal questions in its second appeal. Clearly, Petitioner

was without power to do so in view of the last part of the

August, 1974 opinion where the Minnesota Court limited

the questions on remand to misconduct of Plaintiff's coun-

sel and excessiveness of the verdict.

CONCLUSION

_This Court has held in Jenkins and Raley that if the

Federal questions are actually considered by the lower

court, the timing and the manner that they were raised is

irrelevant. Because the Minnesota Court expressly decided

10

the Federal questions in their opinion, objections on the

basis of timeliness and manner are irrelevant.

Moreover, the Federal questions were raised at the first

opportune time by the Petitioner.

In addition, the reliance of Respondent on overruled

Minnesota cases to defeat jurisdiction is clearly misplaced.

The challenge by Petitioner is of the ruling of the state

supreme court.

At this stage in the proceedings, all questions of state

law have been decided and the only remaining question to

be decided is the constitutionality of the choice of laws

rules liberally applied by the Minnesota Supreme Court.

This question is of significant Federal importance and

completely determines the outcome of this case. These com-

plicated Federal questions should be decided by this Court.

If this Court decides that Minnesota abridged the constiiu-

tional rights of Petitioner, the result of the case would be

exactly opposite. Consequently, there is absolutely no mer-

it to the contention that the decision rests on state grounds

since the matter is completely controlled by Federal law

at this point.

Respectfully submitted,

George M. Roehrdanz

HOKE, ROEHRDANZ, BIGELOW

& CHAMBERLAIN, Ltd.

212 Ridgewood Avenue

Minneapolis, Minnesota 55403

(612) 871-3803

Attorneys for Petitioner

A-l

APPENDIX

STATE OF MINNESOTA

IN SUPREME COURT

August 12, 1974

ROY SCHWARTZ,

Appellant-Respondent,

vs. 44158, 44281, 44509, 44525

CONSOLIDATED FREIGHTWAYS CORPORATION

OF DELAWARE,

Respondent-Appellant,

SPECTOR FREIGHT SYSTEM, INC., OF ILLINOIS,

Respondent.

ORDERED that the time within which the petition for

rehearing of respondent Spector Freight System, Inc. must

be served and filed herein be and it is hereby extended to

include August 22, 1974.

Dated Aug. 13, 1974.

/s/ JAMES C. OTIS

Associate Justice

A-2

(Title of Cause—In Supreme Court.)

ORDER

Upon the application of counsel for respondent Spector

Freight System, Inc.,

IT IS ORDERED that the time within which the re-

spondent’s petition for rehearing may be served and filed

be and hereby is extended to include September 30, 1974.

NO FURTHER EXTENSIONS WILL BE GRANTED.

Dated: September 3, 1974.

BY THE COURT

/s/ JAMES C. OTIS

Associate Justice

(Title of Cause—Office of Clerk of Supreme Court.)

(Petition for Reargument Filed)

September 27, 1974

SIR:

You will please take notice that on this date the follow-

ing order was entered in the above entitled cause:

Application for reargument having been filed herein all

further proceedings, except taxation of costs are stayed

pending its determination.

Yours respectfully,

JOHN McCARTHY

Clerk Supreme Court

A petition for reargument does not stay taxation of costs

and disbursements.

A-3

(Title of Cause—Office of Clerk of Supreme Court.)

(Petition Denied)

October 2, 1974

SIR:

You will please take notice that on this date the follow-

ing order was entered in the above entitled cause:

ORDERED, that the petitions for reargument herein be

and the same hereby is denied and stay vacated.

Yours respectfully,

JOHN McCARTHY

Clerk Supreme Court

RULE 102. SUSPENSION OF RULES

In the interest of expediting decision upon any matter

before it, or for other good cause shown, the Supreme

Court, except as otherwise provided in Rule 126.02, may

suspend the requirement or provisions of these rules on

application of a party or on its own motion and may order

proceedings in accordance with its direction.