Opposition — Sidle v. Majors

Suprome Cour, U.

FILED

SEP 24 1976

IN THE MICHAEL RODAK, JR. CLERK

Supreme Court of the United States

OCTOBER TERM, 1976.

a‘

No. 76-30u09

TRACY SIDLE,

Petitioner,

VS.

WILLIAM C. MAJORS,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

ROBERT H. HAHN

GEORGE A. PORCH

MARK L. PHILLIPS

708 Hulman Building

Evansville, Indiana 47708

Telephone: (812) 425-1591

RODNEY H. GROVE

1510 Old National Bank Building

Evansville, Indiana 47708

Telephone: (812) 423-4433

Attorneys for Respondent-Appellee

Of Counsel:

BAMBERGER, FOREMAN, OSWALD

AND HAHN

708 Hulman Building

Evansville, Indiana 47708

Telephone: (812) 425-1591

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

TABLE OF CONTENTS.

PAGE

Re GED ccudandu cu actaenesececaceunus i

ee eS ID b d'u'n 40S 06adsenSeeanesandes 1

er er ED ccd ks dwddeddvewesesicceusiaee 1

Reasons for Denying the Writ ..................... 2

a PRT eT errr Te eee eee 8

TABLE OF AUTHORITIES.

Cases.

Cannon v. Oviatt, ........... a , 520 P.2d 833 (1974),

appeal dismissed for want of substantial federal question

419 U.S. 810, 95 S.Ct. 24 (1974), rehearing denied,

8 «8 Beer ee rer ere 2, 4,7

Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25

Eee Ge GUD Kcodeedenundedcecasscuasds 6

Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31

Bs § 8) rrr er Te 6

Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764,

ee Ge GED ceed sednestveneecunaces 6,7

Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29

ee GOED ocdwacececaweeseebicececas 6

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.

ee GHD. Kc wnseeceesenesecenndeetecsuas eur 6

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678,

FR f F&F Fo rr rT TTT reece 6

Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281 (1975) . 4

Keasling v. Thompson, ........... a , 217 N.W.2d

GEG CUPPED ccvessccdccccccssecccesecocccsces 7

ii

Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d

PSE CERDED sccwcccsscccvecccececceseccecess 6

McDonald, et al v. Board of Election Commissioners of

Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739

> ceeektnasheadetdeadesedentenedewsusns 5

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1701, 6

oe CPED cdeveinntteedgeeessdakenees 6

Oyama v. California, 322 U.S. 633, 68 S.Ct. 269, 92

Se ae COED Snecdcenctevsscosscescoesenns 6

Sidle v. Majors, ........... Ind. ....... 341 N.E.2d 763

TE se bienedeennecudeneebedeeednenecensd 3, 4,7

Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57 (1929) ...3,4,5,8

Constitutional Provisions and Statutes.

Fourteenth Amendment To The Constitution Of The

ED ino 666646000900000046 S40 ne OEM ad passim

Indiana Acts, 1929, ch. 201, § 1, p. 279 as amended, Ind.

Code 1971, 9-3-3-1 (Burns Code Ed.) ......... ad passim

Utah’s Guest Statute, 41-9-1, U.C.A. 1953 ........... 4

Rules of Procedure.

Rule 19 of the Rules of the Supreme Court of the United

I air halk Sh at oh hel area ores ie eae eek ea 3, 4, 8, 10

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1976.

TRACY SIDLE,

Petitioner,

vs.

WILLIAM C. MAJORS,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO THE —

PETITION FOR A WRIT OF CERTIORARI

THE QUESTION PRESENTED.

The question presented for review is whether the Guest

Statute enacted by the Indiana General Assembly, Ind. Code

1971, 9-3-3-1 (Burns Code Ed.), is in violation of the equal

protection clause of the Fourteenth Amendment to the Con-

stitution of the United States.

STATEMENT OF THE CASE.

This is a diversity action initiated by petitioner Tracy Sidle

against respondent William C. Majors seeking recovery for

personal injuries sustained by Sidle in an automobile collision

allegedly caused by Major’s negligence. The operative facts, as

found by the United States District Court for the Southern Dis-

trict of Indiana are:

2

On November 18, 1972, petitioner Sidle and respondent

Majors were attending the Homecoming activities of Vincennes

University, and were staying at the Executive Inn in Vincennes,

Knox County, Indiana. Sometime prior to 11:00 P. M. on that

date petitioner, respondent, and a mutual friend decided to

visit another friend who lived near Hart Street Road on the

south side of Vincennes.

Upon departing the Executive Inn, petitioner accepted re-

spondent’s invitation to ride in his automobile. Neither prior

to nor during the automobile trip did the petitioner pay or

promise to pay respondent any consideration for the transporta-

tion.

The automobile in which the trip took place was a 1972

Opal GT owned and driven by respondent. Leaving the Ex-

ecutive Inn, respondent drove south and turned onto Hart Street

Road and proceeded in a southerly direction. As respondent

drove along Hart Street Road he approached a sharp left curve,

and while he was attempting to negotiate the curve, the vehicle

left the traveled portion of the road and struck a tree.

As a proximate result of the accident, petitioner sustained

injuries and incurred medical expense.

REASONS FOR DENYING THE WRIT

Respondent submits that at least four (4) separate reasons

exist for denying petitioner’s writ:

I. Petitioner has not brought herself within this Court's

jurisdiction on a writ of certiorari;

Il. This Court’s dismissai of the appeal in Cannon v.

Oviatt, ........ Utah ........., 520 P.2d 883 (1974), ap-

peal dismissed for want of substantial federal question,

419 U.S. 810, 95 S.Ct. 24 (1974), reh. denied. 95

S.Ct. 645 (1974), is a ruling on the merits of the

exact question attempted to be raised herein;

3

II. This Court’s opinion in Silver v. Silver, 280 U.S. 117

50 S.Ct. 57 (1929), is dispositive of the sole issue

sought to be presented by petitioner; and

IV. The Indiana Supreme Court in Sidle v. Majors, ..........

Ind. ..... 341 N.E.2d 763 (1976), the United

States District Court for the Southern District of

Indiana, and the United States Court of Appeals for

the Seventh Circuit, properly held that the Indiana

Guest Statute does not violate the equal protection

guarantees of the Fourteenth Amendment to the Con-

stitution of the United States.

Rule 19 of the Rules of the Supreme Court of the United

States sets forth the considerations governing jurisdiction of a

review of certiorari. The rule, in pertinent part, provides:

“Rule 19. Considerations Governing Review on Cer-

tiorari.

“1. A review on writ of certiorari is not a matter of

right, but of sound judicial discretion, and will be granted

only where there are special and important reasons there-

for. The following, while neither controlling nor fully

measuring the court’s discretion, indicate the character of

reasons which will be considered:

“(a) Where a state court has decided a federal

question of substance not theretofore determined by

this court, or has decided it in a way probably not

in accord with applicable decisions of this court.

“(b) Where a court of appeals has rendered a de-

cision in conflict with the decision of another court

of appeals on the same matter; or has decided an

important state or territorial question in a way in con-

flict with applicable state or territorial law; or has

decided an important question of federal law which

has not been, but should be, settled by this court; or

has decided a federal question in a way in conflict

with applicable decisions of this court; or has so far

departed from the accepted and usual court of judicial

proceedings, or so far sanctioned such a departure by

4

a lower court, as to call for an exercise of this court's

power of supervision.”

In the case at bar, petitioner seeks review of a decision which

does not fall within any of the above enumerated categories.

It is not a decision in direct conflict with another court of ap-

peals on the same matter. It is not a decision resolving an

important state question in a way in conflict with applicable

state law. It is not a decision on an important question of federal

law which has not been decided by this Court. It is not a

decision resolving a federal question in a way in conflict with

applicable decisions of this Court. This case does not involve a

departure from the accepted and usual course of judicial pro-

ceedings, or sanction such a departure by a lower court.

This case involves a decision by the Seventh Circuit Court

of Appeals upholding the constitutionality of the Indiana Guest .

Statute. it is in accord with applicable state law, Sidle v.

Majors, .......... Ind. ....., 341 N.E.2d 763 (1976), and with

the controlling decision of this Court, Silver v. Silver, supra.

Moreover, as this Court recently declared, the question presented

is not a substantial federal question. Cannon v. Oviatt, supra.

The writ should therefore be denied for petitioner's failure to

satisfy the criteria of Rule 19, supra.

Il.

In Cannon v. Oviatt, . Utah ......, 520 P.2d 883 (1974),

the Supreme Court of the State of Utah upheld Utah’s Guest

Statute, 41-9-1, U.C.A. 1953, against an equal protection attack

for many of the same reasons advanced by petitioner. The ap-

peal from the ruling in Cannon v. Oviatt, to this Honorable

Court was dismissed for want of a substantial federal question.

419 U.S. 810, 955 S.Ct. 24 (1974). Although that ruling may

not be a plenary consideration, it is an adjudication on the

merits of the exact question presented herein. See Hicks v.

Miranda, 422 U.S. 322, 95 S.Ct. 2281 (1975). This is par-

5

ticularly true since the Utah guest statute was recognized by

the Seventh Circuit Court of Appeals as being “virtually identi-

cal to Indiana’s.”

Petitioner's contention that the Indiana Guest Statute violates

the Equal Protection Clause of the Constitution fails to present

a substantial federal question.

In petitioner's brief solicitious concern is expressed about

the split of authority in the various states concerning the con-

stitutionality vel non of their respective guest statutes. More-

over, petitioner is concerned that as one travels across the con-

tinental United States the liability of hosts toward guests vacil-

lates from state to state. Apparently, petitioner is advancing the

proposition that the equal protection guarantees of the Fourteenth

Amendment require uniformity among the laws of the various

states. The contention is without merit. The equal protection

clause requires that a state not deny to any person within its

jurisdiction the equal protection of the laws. This does not mean

that the laws of Indiana must correspond to those of Illinois,

Ohio, Kentucky, or any other state. It is not an unconstitutional

deprivation of equal protection for Indiana’s guest statute to

afford different treatment than the laws of another state, just

as it is not unconstitutional for the laws of Indiana to differ from

other states in such areas as medical malpractice, statutes of

limitations, age of majority, pari-mutuel betting, speed limits,

or a host of other subjects.

Il.

In Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57 (1929), this

Court unanimously rejected an argument that the guest statute

of Connecticut violated the equal protection guarantees of the

Fourteenth Amendment. Respondent respectfully submits that

this ruling is dispositive of petitioner's writ.

It is a fundamental precept of constitutional law that legisla-

tion is clothed with a presumption of constitutionality. Mc-

Donald, et al vy. Board of Election Commissioners of Chicago,

6

394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). When

confronted with an equal protection argument, this Court has

historically employed a two-tier approach in evaluating and

reviewing the cases.

Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct.

1764, 36 L.Ed.2d 768 (1972).

The “low” tier or low scrutiny test presumes constitutionality

of the classification and will not disturb the state action unless

the classification bears no rational relationship to a legitimate

governmental purpose. The classification can withstand equal

protection scrutiny even though there be significant deviation

from an ideal classification.

Frontiero v. Richardson, supra.

Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153,

25 L.Ed.2d 491 (1970).

McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1701,

6 L.Ed.2d 393 (1961).

At the opposite end of the scale of judicial review is the

second tier, or high scrutiny test. If the classifying criteria are

grounded upon certain suspect traits. such as race,’ alienage,’

o- national origin® or if the classification intrudes upon the so-

called fundamental rights such as to the right to vote,* to appeal

criminal convictions,’ or freedom of association,® then the clas-

1. See, Loving v. Virginia, 388 U.S 1, 87 S.Ct. 1817, 18 L.Ed.

2d 1010 (1967).

2. See, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848,

29 L.Ed.2d 534 (1971).

3. Sec, Oyama v. California, 332 U. S. 633, 68 S. Ct. 269, 92

L.Ed. 249 (1948).

4. Dunn v. Blumstein, 405 U.S. 330, 92 $.Ct. 995, 31 L.Ed.2d

274 (1972).

5. See, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.

591 (1956).

6. See, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678

14 L.Ed.2d 510 (1964).

7

sifications will not stand unless justified by a compelling state

interest.

Frontiero v. Richardson, supra.

As recognized by the Court of Appeals in the case at bar,

since the Indiana Guest Statute is not inherently suspect and

does not impinge fundamental rights, the low scrutiny test is

applicable.

Thus, the statute is not unconstitutional if its classifications

are rationally related to some legitimate state purpose.

IV.

This test was employed by the Indiana Supreme Court in

Sidle v. Majors, .... Ind. ......, 341 N.E.2d 763 (1976),

wherein the Court found both a legitimate legislative purpose

and a rational relationship between the classifications made by

the statute and the legislative purpose. Moreover, this court’s

ruling in Cannon v. Oviatt, supra. upholds a finding by the

Utah Supreme Court of both a legitimate state purpose and a

rational relationship in a virtually identical statute.

Sidle has not sustained her burden of rebutting the presump-

tion of constitutionality of the statute. Her brief is replete with

her social theories which are based on nothing more than her

own conjecture and the supposition of some legal scholars. The

question of the efficiency, fairness and wisdom of the statute

is for legislative resolution. The function of the judiciary is to

consider whether the legislature has the power to enact particu-

lar legislation, sot whether the public policy decision behind the

legislation was proper or wise. Justice LeGrand in Keasling v.

Thompson, _.... lowa ......, 217 N.W.2d 687 (1974), reaches

the heart of the decisions relied upon by Sidle when he states:

“What has happened is that judicial forebearance has run

out in the face of disapproval of the law itself. This hardly

serves as a legitimate reason for the overthrow of the

statute. Courts should pay the same deference to statutes

8

they don’t like as to those they do.” (217 N.W.2d at p.

696.)

CONCLUSION

Petitioner has failed to bring herself within the jurisdictional

mandates of Rule 19 of the Rules of the Supreme Court of the

United States. Moreover, the only question sought to be presented

by petition was dismissed by this Court in 1974 for want of a

substantial federal question. Additionally, this Court’s opinion

in Silver y. Silver, supra, is a plenary consideration and dis-

positive of petitioner’s argument.

For these reasons, respondent respectfully submits that peti-

tioner’s writ should be denied.

Respectfully submitted,

RoBerT H. HAHN

GEORGE A. PORCH

MakRK L. PHILLIPS

708 Hulman Building

Evansville, Indiana 47708

Telephone: (812) 425-1591

RoDNEY H. GROVE

1510 Old National Bank Building

Evansville, Indiana 47708

Telephone: (812) 423-4433

Attorneys for Respondent-Appellee

Of Counsel:

BAMBERGER, FOREMAN, OSWALD

AND HAHN

708 Hulman Building

Evansville, Indiana 47708

Telephone: (812) 425-1591