Motion to Dismiss or Affirm — Porter v. Porter

JAN RB 1980

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-933

EVELYN PorTER,

Appellant,

VS.

JACK E. Porter,

Appellee.

On Appeal From the Tennessee Court of Appeals,

Middle Division

MOTION TO DISMISS OR AFFIRM

THOMAS H. PEEBLES, III

TRABUE, STURDIVANT & DEWITT

26th Floor, L. & C Tower

Nashville, Tennessee 37219

FRANK D. FARRAR

102 Scottsville Hwy., Box 280

Lafayette, Tennessee 37083

SOLON W. FITZPATRICK

Carthage, Tennessee 37030

Counsel for Appellee

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

INDEX

POE FTI ob 5 ob oc ese vee enteeeiniee ys

Motion to Dismiss or Affirm ............50eeeeeeeee

Grounds of Motion to Dismiss or Affirm.............

CII FINS ©. <i ccc cdipe ce rcccncsaceereves

Gd 1 PPP PETE T Tee Tere Ce eT ere

PEE 6.40 pew nehenackckas Peete renee ence ees

I. This Court Has No Jurisdiction Under 28

U.S.C. §1257 (2) Because the Validity of

Tenn. Code Ann. §36-825 Was Not Drawn

Into Question in the State Courts...........

A. Appellant Advanced No Argument In The

State Courts That TENN. CODE ANN.

§36-825 Was So Vague As To Be Void

Under the Fourteenth Amendment To

the Constitution of the United States ...

B. The Validity of TENN. CODE ANN.

§36-825 Was Neither Considered Nor

Decided By the Tennessee Courts ......

C. An Alleged Unconstitutional Application

of TENN. CODE ANN. §36-825 Does

Not Draw Into Question The Validity of

the Siatute Within the Meaning of 28

rs SUP 5 da kavasseieRievaess

Il. This Court Must Decline Jurisdiction Because

the Alleged Unconstitutional Application of

Tenn. Code Ann. §36-825 Was Not Timely or

Properly Raised in the Tennessee Courts.....

i | ii

ll

A. This Court Requires That A Federal IV. This Court Must Decline Jurisdiction Because

Question Be Presented Expressly, Rather the Case Involves No Substantial Federal a

Than Inferentially, In the State Court EE A DS ee

Proceedings In Order to Entertain ee eee es ade ks a vecescce 22

Jurisdiction of An Appeal ............ 11 AEE eave ten ets: 33

B. Appellant’s Attempt to Raise the Alleged NET PT OPE EE ETE

Unconstitutional Application of TENN.

CODE ANN. §36-825 in the State

Supreme Court For the First Time In A

Petition For Rehearing Is Insufficient TABLE OF AUTHORITIES

Both Under State Appellate Procedure

And As An Attempt to Vest Jurisdiction Federal Decisions

In the United States Supreme Court .... 14

III. This Court Must Decline Jurisdiction Because American Motorists Ins. Co. v. Starnes, 425 U.S. 637, '

the Judgments of the Tennessee Courts Rest 96 S.Ct. 1800, 48 L.Ed.2d 263 (1976) ............

Upon Adequate Non-Federal Bases......... 16 Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 en

A. The Tennessee Court of Appeals’ Failure I SE Oe ’

h en

par sera «ee cone ce Baker v. Druesedow, 263 U.S. 137, 44 S.Ct. 40, 68 a

SS

§36-825 Was Justified By Appellant’s L.Ed. 212 (1923)

Failure to Follow State Appellate Pro- Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 bs

cedures, Which Is An Adequate And In- ee bane cece cece ce

— 16 Bilby v. Steward, 246 U.S. 255, 38 S.Ct. 264, 621-Ed.

ec: dm eee ys cs..........

B. The Tennessee Supreme Court’s Failure to

Address the Alleged Unconstitutional Boykin v. ee U.S. 238, pal _ :

Application of TENN CODE ANN. seanectmiateatt aaa deena

$36-825 Is Supported By Appellant’s Buchalter v. New York, 319 U.S. 427, 63 S.Ct. 1129, 87

Failure to Follow State Appellate Pro- Cah a ses sss. esee. 21

cedure, Which Is An Adequate And In- -

depentent State Ground For the Deci- Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1161, 22 P

WN a saanienecaceh ccacekere ot 19 L.Ed.2d 398 (1969) OR i er ee ee ee

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 ,

Fe me a fp) ne

iv

Clarke v. McDade, 165 U.S. 168, 17 S.Ct. 284, 41

RPA s ns Via vate sSenad ca cacsk ken.

Dyke v. Taylor Implement Co., 391 U.S. 216, 88 S.Ct.

1472, 20 L.Ed.2d 538 (1968) ...........ccccccce

Edelman v. California, 344 U.S. 357, 73 S.Ct. 293, 97

OP EE ade oki aves tad ine cess ss

F. G. Oxley Stave Co. v. Butler County, 166 U.S. 648,

17S.Ct. 709, 41 L.Ed. 1149 (1897) ..............

Forbes v. State Council of Virginia, 216 U.S. 396, 30

S.Ct. 295, $4 L.Ed. 534(1910)..................

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2

SUE WAPEUIOUD 6 hus sa keds sdeacesbaddccs

Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13

eS

Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794, 79

iM NUE a sya es fb nein s vee

International Steel & Iron Co. v. National Surety Co.,

297 U.S. 657, 56 S.Ct. 619, 80 L.Ed. 961 (1936) ...

Ireland v. Woods, 246 U.S. 323, 38 S.Ct. 319, 62 L.Ed.

PS Cieice ne ekadece ee

Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16

Ect MUE MP EEIED ob nos ase ou andeeecec tenn.

Levy v. Superior Court, 167 U.S. 175, 17 S.Ct. 769, 42

es PETE iawn has cairns beak ucs

McCoy v. Shaw, 277 U.S. 302, 48 S.Ct. 519, 72 L.Ed.

sce gsc, ON OOO TE NP eae

McMillen v. Ferrum Mining Co., 197 U.S. 343, 25 S.Ct.

953, 49 L.Ed. 784(1905).. occ cece ccccccccece,

14

ia

16

9,10

17

16

17

14

17

16

Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56

Be 7 eee ee

Murdock v. Memphis, 87 U.S. 590, 22 L.Ed. 429 (1875)

New York ex rel Bryant v. Zimmerman, 278 U.S. 63, 49

te My | ee

Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245

U.S. 162, 38 S.Ct. 58, 62 L.Ed. 221 (1917)........

Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d

oo ee errr or re ere se

Stembridge v. Georgia, 343 U.S. 541, 72 S.Ct. 834, 96

Ce PE oo so ocb oe CURR O DEN EENN Ds Coes

Tacon v. Arizona, 410 U.S. 351, 93 S.Ct. 998, 35

BOP Sf ee eer ee eee ee

Thomas v. Iowa, 209 U.S. 258, 28 S.Ct. 487, 52 L.Ed.

: rr eee ne eran eee ee

United States ex rel. Champion Lumber Co. v. Fisher,

227 U.S. 445, 33 S.Ct. 329, 57 L.Ed. 591 (1913) ...

Zucht v. King, 260 U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194

| EE ere errr TT ere TET eee L eee eee

State Decisions

Brown v. Allright Auto Parks, Inc., 61 Tenn. App. 543,

te Bt reer

City of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082

RPSARE Meant ry err er ee eae oe

Commerce Union Bank v. Gillespie, 178 Tenn. 179, 156

Rf) AT yreeet reer ereeeere

17

16

17

13,14

12

16

12

vi

Cope v. Hembree, 487 S.W.2d 647 (Tenn. 1972)....... 12

Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn.

PR TPP 5s inktekvicend.. 18

Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062

GRID. 5.555:6 i utiecnesa askin 8

Dorrier v. Dark, 537 S.W.2d 888, reh. denied 540

A fe eee ene re 15

Greer v. Underwood, 62 Tenn. App. 225, 461 S.W.2d

BP III a6 « sessidc esp hee ee eee 12

Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978) .... 15

Hoover Motor Express Co. v. Fort, 167 Tenn. 628, 72

S.W.2d 1052, appeal dismissed 293 U.S. 529, 55

S.Ct. 149, 79 L.Ed. 638 (1934).................. 15

Jarman v. Export Ins. Co., 59 Tenn. App. 245, 439

Oe | Mt 12

Johnson v. Johnson, 185 Tenn. 400, 206 S.W.2d 400

GUID bik vis ucscucsneaunwure eee 18

Kittrell v. Kittrell, 56 Tenn. App. 584, 409 S.W.2d 179

fe POPE eee TPE 8,11,13,21

Maryville Housing Authority v. Ramsey, 484 S.W.2d 73

Ce. AG. BOTs wo vavccaceane eee 15

Pollard v. Beene, 20 Tenn. App. 83, 95 S.W.2d 942

GOPOe Sivuuncsanaevedecaneeaiu ie ae 12

Richmond Type & Electrotype Fdy. v. Carter, 133

Tenn. 489, 182 S.W. 240(1915)................. 15

Royal Jewelers Co. of Knoxville v. Hakeo, 185 Tenn.

254, 205 S.W.2d 963 (1947) ...............0055. 15

Smith v. Uffelman, 509 S.W.2d 229 (Tenn. App. 1974) . 12

Vii

State v. James Sanford Agency, 167 Tenn. 339, 69

ID yc ski asecevswerassccewnes 15

State ex rel. Melton v. Nolan, 161 Tenn. 293, 30 S.W.2d

ES ne ee eee eee 12

Tennessee Oil Co. v. McCanless, 178 Tenn. 683, 157

S.W.2d 267, on rehearing 178 Tenn. 700, 162

S.W.2d 1081, appeal dismissed, 317 U.S. 588, 63

Fe Re 6a i) eee 16

Wilson Laboratories v. Webster-Warnock Chem. Co.,

155 Tenn. 296, 291 S.W.2d 835 (1934) ........... 15

Statutes

y LR Rom ey yl), 7” rer 2,5,7,8,10,19

TENN. CODE ANN. §36-825 (1977)...... 2,5,6,7,8,10,11,13,

14,15,16,17,18,19,21

TENN. CODE ANN. §36-801 et seg. (1977 & Supp.

GIy Lice hes 6 bbe PS ROA NNER ORES ES 2

Court Rules

b Bs RS 6”, rea 15

ee en ees e aks eetsennees 12,13

TN. RULE OF CIVIL PROCEDURE 24.04* ......... 7

* The Rules of the Tennessee Supreme Court and Court of Appeals

and Rules of Civil Procedure may be found in Volume 5A of the TEN-

NESSEE CODE ANNOTATED (Official Edition (1977) — Bobbs

Merrill)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-933

EVELYN PorTER,

Appellant,

VS.

JACK E. Porter,

Appellee.

On Appeal From the Tennessee Court of Appeals,

Middle Division

MOTION TO DISMISS OR AFFIRM

MOTION

Pursuant to Rule 16 of the United States Supreme Court, Ap-

pellee respectfully moves the Court for an order dismissing this

appeal, or, alternatively affirming the judgment of the

Tennessee Court of Appeals, from which this appeal is taken.

ai as

GROUNDS FOR MOTION TO DISMISS OR AFFIRM

Appellee moves the Court to dismiss this appeal or, in the

alternative, to affirm the judgment of the Tennessee Court of

Appeals upon the following grounds: (1) that the validity of the

state statute challenged was not drawn into question in the state

courts; (2) that the alleged unconstitutional application of the

state statute was not timely or properly raised, or expressly

passed on by the state courts; (3) the judgment of the state court

rests on an adequate non-federal ground; and (4) a substantial

federal question has not been presented.

QUESTIONS PRESENTED

| I. Was the validity of TENN. CODE ANN. §36-825 drawn

into question in the state courts so as to confer jurisdiction on

this Court pursuant to 28 U.S.C. §1257(2)?

II. Was the alleged unconstitutional application of TENN.

CODE ANN. §36-825 timely or properly presented to the

Tennessee courts?

III. Was the state court’s decision based upon an adequate

non-federal ground?

IV. Has a substantial federal question been presented to the

Court?

STATEMENT OF THE CASE

A. Proceedings Below

This suit was originally instituted in the Circuit Court of

Macon County, Tennessee by Appellee, pursuant to TENN.

CODE ANN. §§36-801 ef seq., seeking an absolute divorce

custody of the parties’ minor child and a division of jointly

owned property. The Trial Court awarded Appellee an absolute

divorce and custody of the minor child. Appellant was relieved

—

of any obligation to contribute to the support of the child in the

future and was further awarded ‘‘Porter Realty Company, all

assets of same including any and all savings and/or checking ac-

counts, her 1973 Chevrolet automobile and her personal belong-

ings... .’’ [J.S. at A 2] All of the remaining jointly held proper-

ty and assets of the parties were awarded to Appellee, including

the real estate and improvements thereon, household fur-

nishings, cattle, farming equipment and all other assets. Ap-

pellee was required to assume all joint obligations, promissory

notes and mortgages against the real estate and personal proper-

ty and to hold Appellant harmless with respect to payment of all

such joint obligations.

The case was appealed by Appellant to the Tennessee Court

of Appeals. The Court of Appeals affirmed the judgment of the

trial court in all respects. Thereafter, Appellant petitioned the

Tennessee Supreme Court for a writ of certiorari to review the

decision of the Tennessee Court of Appeals. The Petition for

Certiorari was denied and, subsequently, Appellant petitioned

for a rehearing on the Court’s denial of certiorari. The Petition

to Rehear was likewise denied by the Tennessee Supreme Court.

B. The Decision Below

A Motion to Strike the Bill of Exceptions (Transcript of the

Testimony) was filed in behalf of Appellee in the Tennessee

Court of Appeals upon the ground that certain exhibits in-

troduced into evidence at the trial were neither filed and iden-

tified by the Clerk nor authenticated by the trial judge. The

Court of Appeals found that all exhibits complained of, with

the exception of one, were material to the issues on appeal and

that none were filed, identified or authenticated as required by

State law. Accordingly, Appellee’s motion was sustained and

the transcript of the testimony stricken. The Court of Appeals

therefore concluded:

_— pe

‘*Thus Appellant must stand on the technical record alone.

Appellant’s assignments of error gO to the evidence in-

troduced at the trial and in the absence of a bill of excep-

tions this Court must affirm the judgment of the trial

court.’’ [J.S. at A3-A4]

The Tennessee Court of Appeals then went further, primarily

because the custody of a child was involved, to ‘‘informally”’

consider the bill of exceptions, including the unauthenticated

exhibits. The Court concluded that there was no error in the

award of child custody and no error in the division of property.

The opinion of the Tennessee Court of Appeals is recited in full

in Appendix I to Appellant’s Jurisdictional Statement [J.S.] to

this Court.

Appellant’s Petition for Certiorari to the Tennessee Supreme

Court and Petition to Rehear upon the denial of the Petition for

Certiorari were denied by the Tennessee Supreme Court without

opinion. The Tennessee Supreme Court’s memoranda denying

the Petition for Certiorari and the Petition to Rehear are

recited in full in Appendices II and III of Appellant’s Jurisdic-

tional Statement.

—

ARGUMENT

I.

This Court Has No Jurisdiction Under 28 U.S.C. §1257 (2)

Because The Validity of TENN. CODE ANN. §36-825 Was

Not Drawn Into Question ia the State Court

A.

Appellant Advanced No Argument In The State Courts That

TENN. CODE ANN. §36-825 Was So Vague As To Be Void

Under The Fourteenth Amendment To The Constitution Of

The United States.

Pursuant to 28 U.S.C. §1257(2), this Court has appellate

jurisdiction to review on appeal any final judgment or decree

rendered by the highest court of a state in which the validity of a

state statute was questioned as violative of federal law and a

decision rendered in favor of the statute’s validity. It is well

established, however, that the Court has no jurisdiction to

review the validity of a state statute that was not challenged in

the state courts. E.g. Taconv. Arizona, 410 U.S. 351, 93 S.Ct.

998, 35 L.Ed. 2d 346 (1973); Edelman v. California, 344 U.S.

357, 73 S.Ct. 293, 97 L.Ed. 387 (1953); International Steel &

Iron Co. v. National Surety Co., 297 U.S. 657, 56 S.Ct. 619, 80

L.Ed. 961 (1936). Aside from the pure question of the statutory

requirements of 28 U.S.C. §1257(2), the Court has recognized

that there are ‘‘sound reasons’’ for this, particularly since:

[q]uestions not raised below are those on which the record

is very likely to be inadequate, since it is certainly not com-

piled with those questions in mind. And in a federal system

it is important that state courts be given the first oppor-

tunity to consider the applicability of state statutes in light

of constitutional challenge, since the statutes may be con-

strued in a way which saves their constitutionality.

—_

Cardinale v. Louisiana, 394 U.S. 437, 439, 89 S.Ct. 1161, 1163,

22 L.Ed. 2d 398, 400 (1969).

An examination of the records and briefs filed in any of the

Tennessee courts reveals that nowhere, at any Stage of the pro-

ceedings, did Appellant argue, or even Suggest, that TENN.

CODE ANN. §36-825 (1977) was ‘‘so vague as to be void under

the Fourteenth Amendment”’ or invalid under any other provi-

sion of the federal constitution. Indeed, Appellant’s Jurisdic-

tional Statement does not insist that this issue was raised in the

state courts.

American Motorists Ins. Co. v. Starnes, 425 U.S. 637, 96 S.Ct.

1800, 48 L.Ed. 2d 263 (1976), relied upon by Appellant, is ob-

viously not in point because there the appellant presented to the

Texas courts a clear constitutional challenge to the state’s venue

statute. Similarly, in New York ex rel Bryant v. Zimmerman,

278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184 (1928), the Court, while

recognizing that ‘‘no particular form of words or phrases is

essential,’’ found that the appellant had brought to the atten-

tion of the state court the claim of invalidity ‘‘with fair precision

and in due time.’’ Of equal importance, the Zimmerman Court

noted that the state court recognized and actually decided the

federal question. 278 U.S. at 67-69, 49 S.Ct. at 63, 73 L.Ed. at

187-88. In the instant case, however, there are ‘“‘no words or

phrases”’ in the record or briefs filed in the state courts from

which this Court can find the slightest hint of a constitutional

ra to the validity of TENN. CODE ANN. §36-825

77).

B.

The Validity of TENN. CODE ANN. §36-825 Under The

Fedvral Constitution Was Neither Considered Nor Decided By

Tia Tennessee Courts.

Appellant misplaces reliance upon Dyke v. Taylor Implement

Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed. 2d 538 (1968). Dyke

a

von, ere

stands for a well established exception to the general rules

governing how and when a federal question must be presented

to the state court. There, in response to the contention that the

appellant had failed to properly raise federal questions in the

state court, this Court noted that the state supreme court had

expressly considered and rejected the proposition that the four-

teenth and sixth amendments to the federal constitution re-

quired that petitioner be given a jury trial. The Court held that

jurisdiction existed under 28 U.S.C. §1257(2) irrespective of the

appellant’s failure to properly raise the issues because the

federal question had actually been passed upon by the highest

court of the state. 391 U.S. at 217 n.3, 88 S.Ct. at 1473 n.3, 20

L.Ed. 2d at 541 n.3. See also Cox Broadcasting Corp. v. Cohn

420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed. 2d 328 (1975); Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969);

Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed. 2d 1344

(1959).

The Tennessee courts did not pass upon any constitutional

objection to the validity of TENN. CODE ANN. §36-825 (1977)

nor was any presented by Appellant. Reviewing the case de

novo, the Tennessee Court of Appeals merely held that the

evidence did not preponderate against the trial courts’ findings

with reference to the division of property and child custody.

There is no mention of TENN. CODE ANN. §36-825 in the

Court’s opinion much less a consideration of its validity.

Moreover, it is readily apparent from the record that this issue

was not brought to the attention of the state courts because

notice was never given to the Attorney General of the State of

Tennessee as required by Rule 24.04 of the Tennessee Rules of

Civil Procedure:

— pom

24.04 Notice to Attorney General when statute, Rule

or Regulation is Questioned

When the validity of a statute of this state or an admin-

istrative rule or regulation of this state is drawn in question

in any action to which the State or an officer or agency is

not a party, the court shall require that notice be given the

Attorney General, specifying the pertinent statute, rule or

regulation.

The clear purpose of a notice requirement is to permit in-

tervention by the state attorney general if necessary to protect

the public’s interest in the result of the suit. See e.g. Cummings

v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062 (1928). The fact that no

notice was given serves to reinforce Appellee’s position that no

argument concerning the validity of TENN. CODE ANN.

§36-825 (1977) was presented to the Tennessee courts.

c.

An Alleged Unconstitutional Application of TENN. CODE

ANN §36-825 Does Not Draw Into Question The Validity Of

The Statute Within The Meaning Of 28 U.S.C. §1257(2).

In support of the contention that jurisdiction has been pro-

perly invoked under 28 U.S.C. §1257(2), Appellant argues that:

[iJn the Tennessee Court of Appeals .. . appellant ...

drew into question the constitutionality of the Trial

Court’s application of [TENN CODE ANN.] §36-825.. .

by citing . . . the case of Kittrell v. Kittrell, 56 Tenn. App.

584, 409 S.W.2d 179 (1966). . .

Appellant’s Jurisdictional Statement at 4 (emphasis supplied). It

is apparent that Appellant fails to recognize the distinction be-

tween a constitutional challenge to the validity of a state statute

and an alleged unconstitutional application of the statute. The

latter furnishes no basis for jurisdiction under 28 U.S.C.

§1257(2). Thus, appeal under 28 U.S.C. §1257(2) does not lie if

a

— va

a party’s claim is that there has been an erroneous exercise of

authority under a valid statute. Hanson v. Denckla, 357 U.S.

235, 78 S.Ct. 1228, 2 L.Ed. 2d 1283 (1958); Zucht v. King, 260

U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194 (1922); Ireland v. Woods,

246 U.S. 323, 38 S.Ct. 319, 62 L.Ed. 745 (1918); Philadephia &

Reading Coal & Iron Co. v. Gilbert, 245 U.S. 162, 38 S.Ct. 58,

62 L.Ed. 221 (1917); United States ex rel. Champion Lumber

Co. v. Fisher, 227 U.S. 445, 33 S.Ct. 329, 57 L.Ed. 591 (1913).

In Ireland, supra, the Court made it clear that a dispute as to

the facts upon which authority is exercised is not a dispute as to

the validity of the authority:

[T]}here isa difference between a question of power to pass

a law and its construction, and a difference beween the en-

dowing of an officer with authority and his erroneous exer-

cise of that authority. As was said by Chief Justice Fuller

...! ‘The validity of a statute is not drawn in question

every time rights claimed under such statute are con-

troverted, nor is the validity of an authority, every time an

act done by such authority is disputed.’

246 U.S. at 330, 38 S.Ct. at 322, 62 L.Ed. at 750-51.

In Hanson v. Denckla, supra, appellants contended that the

Florida court’s exercise of jurisdiction under a Florida statute

violated Section One of the Fourteenth Amendment to the

United States Constitution. In considering whether the Court

had jurisdiction under 28 U.S.C. §1257(2) the Court noted ap-

pellant’s contention in the state court in which it was argued

that:

[t]he exercise by this Court of the jurisdiction sought to be

invoked by the plaintiffs herein would contravene the Con-

stitution and Laws of the State of Florida and the Con-

stitution of the Uniied States, and, in particular, Section 1

of the Fourteenth Amendment to the United States Con-

stitution.

—

357 U.S. at 244n.4, 78 S.Ct. at 1234n.4, 2 L.Ed. 2d at 1292 n.4.

In holding that the Court had no jurisdiction the Court stated:

The appeal is predicated upon the contention that as ap-

plied to the facts of this case the Florida statute providing

for constructive service is contrary to the Federal Constitu-

tion. 28 U.S.C. §1257(2). But in the state court appellants

(the ‘‘beneficiaries’’) did not object that the statute was in-

valid as applied, but rather that the effect of the state

court’s exercise of jurisdiction in the circumstances of this

case deprived them of a right under the Federal Constitu-

tion. Accordingly, we are without jurisdiction of the ap-

peal and it must be dismissed.

357 U.S. at 244, 78 S.Ct. at 1234, 2 L.Ed. 2d at 1292. In the ins-

tant case, Appellant, in the memorandum brief filed in support

of the Petition to Rehear in the Tennessee Supreme Court, con-

tended that:

[b]y construing Tenn. Code Ann. [§36-825] so as to yield

such an arbitrary and unreasonable result, the Courts have

extended their jurisdiction beyond the limits erected by the

guaranties of due process of the United States and the

Tennessee Constitution.

This language, strikingly similar to that employed in Hanson,

supra, as well as Appellant’s own admission in her jurisdictional

statement to this Court that her argument was ‘“‘that the statute

had been applied in an unconstitutional fashion’’ [J.S. at 5]

makes clear the fact that the validity of TENN. CODE ANN.

§36-825 (1977) has not been questioned in this case. Since this is

a prerequisite to this Court’s jurisdiction under 28 U.S.C.

§1257(2), the appeal must be dismissed for want of jurisdiction.

oe

II.

This Court Must Decline Jurisdiction Because The

Alleged Unconstitutional Application of TENN. CODE ANN.

§36-825 Was Not Timely Or Properly Raised In The

Tennessee Courts.

A.

This Court Requires That A Federal Question Be Presented Ex-

pressly, Rather Than Inferentially, In The State Court Pro-

ceedings In Order To Entertain Jurisdiction Of An Appeal.

Appellant contends that an unconstitutional application of

TENN. CODE ANN. §36-825 (1977) was drawn into question

in the Tennessee Court of Appeals by citing Kittrell v. Kittrell,

56 Tenn. App. 584, 409 S.W.2d 179 (1966) in the brief filed

therein on behalf of Appellant. The citation to Kittrell was con-

tained in the body of the brief rather than in appellant’s

assignments of error. Appellant’s Assignment of Error No. 1 in

the Tennessee Court of Appeals provided as follows:

Assignment of Error No. 1:

The Court erred in divesting Appellant of all of her in-

terests in the joint property of the parties.

This was error because the proof conclusively shows

that Appellant contributed substantially to the accumula-

tion of the joint worth of the parties and the decisions in

this State require that Appellant be awarded one-half of

the joint property of the parties.

This was further error because the Trial Judges’s order

divested Appellant of property rights which had been

formerly vested in her as a tenant by the entirety, contrary

to the case law in Tennessee cited in the brief.

None of the Assignments of Error made any specific assertion

of an alleged unconstitutional application of TENN. CODE

ANN. §36-825.

—

In order to raise an issue On appeal to the Tennessee Court of

Appeals it was necessary to specifically assign as error the al-

leged unconstitutional application of the statute:

The assignment of errors shall contain in the order herein

stated:

*_* €

(2) A statement of the errors of fact or law relied upon to

reverse or modify the [judgment below], showing

specifically wherein the action complained of is erroneous

and how it prejudiced the rights of the appellant, with

references to the pages of the record where the ruling of the

court on matters constituting errors of law appeared; and

in case it is an error of fact, to the pages of the record

where the testimony relied upon to sustain the same is to be

found.

TN. CT. APP. RULE 12(2). The decisions of the Tennessee

courts subscribe to the proposition that the courts ‘‘will not

search through many pages of the record to discover points of

alleged constitutional invalidity [of a statute], none being

specified in the assignment [of error].’’ Commerce Union Bank

v. Gillespie, 178 Tenn. 179, 191, 156 S.W.2d 425, 429-30 (1939).

See also Pollard v. Beene, 20 Tenn. App. 83, 95 S.W.2d 942

(1936). Furthermore, the Tennessee courts have consistently

held that an assignment of error to the effect that the lower

court’s decision is ‘‘not in conformity with the law’’ is con-

sidered too general and indefinite to present anything for

review. See, e.g., Cope v. Hembree, 487 S.W.2d 647 (Tenn.

1972); State ex rel. Melton v. Nolan, 161 Tenn. 293, 30 S.W.2d

601 (1930); Smith v. Uffelman, 509 S.W.2d 229 (Tenn. App.

1974); Greer v. Underwood, 62 Tenn. App. 225, 461 S.W.2d 35

(1970); Brown v. Allright Auto Parks, Inc., 61 Tenn. App. 543,

456 S.W.2d 660 (1970); Jarman v. Export Ins. Co., 59 Tenn.

App. 245, 439 S.W.2d 785 (1968).

-— |3 —

It is clear that neither the citation to Kittrell in Appellant’s

brief nor the Assignment that divestiture of plaintiff’s property

rights was ‘‘contrary to the case law in Tennessee’’ was su, 3-

cient under Rule 12 of the Tennessee Court of Appeals’ Rules or

the Tennessee decisions to raise a constitutional issue in the

Tennessee courts. It is equally clear that the Tennessee Court of

Appeals did not interpret Appellant’s Assignment of Error as

having raised any such issue since the Court’s opinion makes no

reference whatever to Kittrell or TENN. CODE ANN. §36-825.

In Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.

2d 98 (1962), the Court, under strikingly similar circumstances,

held that a challenge to a state statute was not properly before it

since the argument was never properly presented to the state

courts. In Beck, aside from the fact that no challenge was made

in the trial court, appellant had failed to comply with a state ap-

pellate court rule that prescribed the manner in which conten-

tions were to be brought to the court’s attention. The rule there

required that issues be ‘‘definitely pointed out in the

‘assignments of error’ in appellant’s brief.”’ In holding that the

arguments failed to comply with this rule, the Court pointed out

that mere generalized attacks were not enough to bring the issue

before the state court and noted that the state courts would not

“search the brief proper to find specific contentions which

should have been listed in assignments of error.’’ Instead, mere-

ly setting the issue forth in one sentence in the body of the brief

as opposed to arguing it was considered by the state court to

have been an abandonment or waiver. Under the authority of

Beck, this Court should now decline jurisdiction of the instant

appeal.

Moreover, this Court has often held there must be something

more than a vague and inferential suggestion of a violation of

rights under the constitution of the United States presented to

the state court in order to give it the limited authority to review

State court judgments. Thomas v. Iowa, 209 U.S. 258, 28 S.Ct.

487, 52 L.Ed. 782 (1908). As the Court has stated:

we Ot oe

[T]he jurisdiction of this court to re-examine the final

judgment of a state court cannot arise from inference but

only from averments so distinct and positive as to place it

beyond question that the party bringing a case here from

such court intended to assert a federal right.

Levy v. Superior Court, 167 U.S. 175, 177-78, 17 S.Ct. 769,

770, 42 L.Ed. 126, 127 (1897) citing F.G. Oxley Stave Co. v.

Butler County, 166 U.S. 648, 17 S.Ct. 709, 41 L.Ed. 1149

(1897). Applying these principles, the Court has held that a

claim that there has been a ‘‘denial of due process,’’ or that a

decision is against ‘‘constitutional rights,’’ or ‘‘the 14th amend-

ment’’ does not of itself raise a federal question with sufficient

distinction to give the Court jurisdiction to consider whether

there has been a violation of the Fourteenth Amendment.

Thomas v. lowa, supra, Clarke v. McDade, 165 U.S. 168, 17

S.Ct. 284, 41 L.Ed. 673 (1897). Therefore, Appellant’s attempt

to raise a federal question through the mere citation of a case

must fail for precisely the same reasons; and without a properly

presented federal question this Court should now refuse

jurisdiction of the case.

B.

Appellant’s Attempt To Raise The Alleged Unconstitutional

Application of TENN. CODE ANN. §36-825 In the State

Supreme Court For The First Time In A Petition For Rehearing

Is Insufficient Both Under State Appellate Procedure And As

An Attempt To Vest Jurisdiction In The United States Supreme

Court.

The appellate rule in effect during the pendency of this case in

the state court provided in pertinent part as follows:

The petition shall state the substance of the case so as to

show a prima facie error or errors in the judgment or

decree of the intermediate court and how petitioner is prej-

udiced thereby.

It shall be accompanied by an assignment of errors and a

brief in support thereof, in the form required by Rules 14

and 15 applicable to cases brought directly from trial

courts to this Court. Counsel shall have the right to use

and file in this Court their briefs in the intermediate court,

making apt refrences thereto, PROVIDED, HOWEVER,

assignments of error in this Court must be redrafted ex-

pressly directed to error in the Judgment or decree of the

intermediate court, showing specifically wherein the opin-

ion of that court is erroneous. (emphasis supplied)

TN. SUP. CT. RULE 12. An examination of Appellant’s peti-

tion for certiorari in the Tennessee Supreme Court discloses that

no assignment of error addressed any alleged unconstitutional

application of TENN. CODE ANN. §36-825 (1977). Therefore,

under settled state appellate procedure, the issue was not prop-

erly before the state supreme court and could not be reviewed by

it. Dorrier v. Dark, 537 S.W.2d 888, reh. denied, 540 S.W.2d

658 (Tenn. 1976); State v. James Sanford Agency, 167 Tenn.

339, 69 S.W.2d 895 (1934); Wilson Laboratories v. Webster-

Warnock Chem. Co., 155 Tenn. 296, 291 S.W. 835 (1927);

Richmond Type & Electrotype Fdy. v. Carter, 133 Tenn. 489,

182 S.W. 240 (1915). Issues thus not pursued, discussed or

argued are treated as waived in the appellate courts. Hoover

Motor Express Co. v. Fort, 167 Tenn. 628, 72 S.W.2d 1052, ap-

peal dismissed 293 U.S. 529, 55 S.Ct. 149, 79 L.Ed. 638 (1934);

Maryville Housing Authority v. Ramsey, 484 S.W.2d 73 (Tenn.

App. 1972).

Appellant’s attempt to raise the issue for the first time in the

state supreme court by way of a petition to rehear is likewise

fatal to the appeal. The Tennessee Supreme Court in a civil case

will not pass upon any question raised for the first time on ap-

peal or consider, on rehearing, that which was not in issue in the

original hearing. Harrison v. Schrader, 569 S.W.2d 822 (Tenn.

1978); Royal Jewelers Co. of Knoxville v. Hakeo, 185 Tenn.

>

— wo

254, 205 S.W.2d 963 (1947); City of Nashville v. Wilson, 88

Tenn. 407, 12 S.W. 1082 (1889). This rule is appropriate and

necessary to the orderly administration of justice and without it

_ there would be no end to a case on appeal. Moreover, the

Tennessee courts have held the rule to be ‘‘especially

applicable’’ in cases of alleged unconstitutionality of state

statutes. Tennessee Oil Co. v. McCanless, 178 Tenn. 683, 157

_ §$.W.2d 267, on rehearing 178 Tenn. 700, 162 S.W.2d 1081, ap

. peal dismissed 317 U.S. 588, 63 S.Ct. 34, 87 L.Ed. 482 (1942).

In the Tennessee Oil decision, this Court recognized the well set-

tled rule that appeals from state court decisions must be dismiss-

ed for want of properly presented federal questions when the

federal question is for the first time raised by petition for

rehearing in the state appellate court. See also Herndon v.

Georgia, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 1530 (1935); Bilby

v. Stewart, 246 U.S. 255, 38 S.Ct. 264, 62 L.Ed. 701 (1918);

Forbes v. State Council of Virginia, 216 U.S. 396, 30 S.Ct. 295,

54 L.Ed. 534 (1910); McMillen v. Ferrum Mining Co., 197 U.S.

343, 25 S.Ct. 533, 49 L.Ed. 784 (1905). This Court should

likewise dismiss the appeal due to Appellant’s failure to proper-

ly present a federal question to the Tennessee Supreme Court.

Ill.

This Court Must Decline Jurisdiction Because The

Judgments of the Tennessee Courts Rest Upon Adequate

Non-Federal Bases.

A.

The Tennessee Court of Appeals’ Failure to Address the Al-

leged Unconstitutional Application Of TENN. CODE ANN.

§36-825 Was Justified By Appellant’s Failure To Follow State

Appellate Procedures, Which Is An Adequate And Independent

State Ground For The Decision.

This Court, in Murdock v. Memphis, 87 U.S. 590, 22 L.Ed.

429 (1875), recognized the rule that the United States Supreme

reassert

—)

Court will not review a case, even though it might contain a

federal question, if there is an adequate state ground that sup-

ports the decision of the state court. There can be no review if

the state court has decided the case exclusively on some ground

of state law, and has never reached a federal question present in

the case. Johnson v. New Jersey, 384 U.S. 719, 735-36, 86 S.Ct.

1772, 1782, 16 L.Ed. 2d 882, 893 (1966); McCoy v. Shaw, 277

U.S. 302, 48 S.Ct. 519, 72 L.Ed. 891 (1928). Furthermore, a

failure to present a federal question in conformance with state

procedure constitutes an adequate and independent ground of

decision barring review in the United States Supreme Court, so

long as the state has a legitimate interest in enforcing its pro-

cedural rule. E.g. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct.

1942, 56 L.Ed. 2d 486 (1978); Henry v. Mississippi, 379 U.S.

443, 85 S.Ct. 564, 13 L.Ed 2d 408 (1965). In the instant case, the

Tennessee Court of Appeals was justified fully in failing to con-

sider the alleged constitutional infirmity of TENN. CODE

ANN. §36-825 (1977) due to Appellant’s failure to follow

established appellate procedure as hereinabove note—the

failure to meet the state’s standard for definiteness as well as

failure to present a proper bill of exceptions to the court for

review. These procedural defaults constitute independent and

adequate state grounds for the Tennessee courts’ decision,

which should now preclude this Court from a review thereof.

As hereinabove noted, Appellant’s failure to properly present

the alleged constitutional issue to the Tennessee Court of Ap-

peals would have precluded review in that Court. This was

recognized as constituting an adequate state ground and thus

precluding United States Supreme Court review in Stembridge

v. Georgia, 343 U.S. 541, 72 S.Ct. 834, 96 L.Ed. 1130 (1952).

There, as in the instant case, the presentation of the constitu-

tional question to the Georgia appellate court did not meet that

State’s requirement of definiteness. In dismissing certiorari as

improvidently granted, the Court stated that:

wen

Where the highest court of the state delivers no opinion [on

the federal question] and it appears that the judgment

might have rested upon a nonfederal ground, this Court

will not take jurisdiction to review the judgment.

343 U.S. at 547, 72 S.Ct. at 837, 96 L.Ed. at 1134 (emphasis by

the Court). Therefore, in the case at bar, even assuming that the

issue was raised as Appellant claims, it is clear that these pro-

cedural errors might have been the reason for the Tennessee

Court of Appeals’ failure to address the constitutional question.

In its opinion, the Tennessee Court of Appeals, after sustain-

ing Appellee’s Motion to Strike the Transcript of the

Testimony, expressly held that it must affirm the judgment of

the trial court because the Assignments of Error went to the

evidence introduced at the trial. Consequently, the Court

recognized that it was precluded from examining the evidence

underlying the trial court’s decision. It is self-evident that

without such review no determination could have been made

with respect to the alleged unconstitutional application of

TENN. CODE ANN §36-825 (J.S. at A3-A4). Appellant now

asks this Court to review the decision of a state court based

upon issues never properly raised in the state court upon a

transcript of testimony stricken by the state court pursuant to

settled state law.

In striking the bill of exceptions, the court was following settl-

ed Tennessee procedure, the purpose of which is to assure that

the record before the appellate court contain all the evidence

that was considered by the trial court. See, e.g. Johnson v.

Johnson, 185 Tenn. 400, 206 S.W.2d 400 (1947); Cosmopolitan

Life Ins. Co. v. Woodward, 7 Tenn. App. 394 (1928). This is

clearly a legitimate state purpose of the procedural rule and in

and of itself constitutes an adequate state ground for the state

court’s decision. Therefore due to the Court of Appeals’ failure

to rule upon the purported federal question and the state pro-

cedural errors supporting this omission, this Court may not now

take jurisdiction to review the judgment.

— 19 —

B.

The Tennessee Supreme Court’s Failure to Address The Alleged

Unconstitutional Application Of TENN. CODE ANN. §36-825

Is Supported by Appellant’s Failure To Follow State Appellate

Procedure, Which Is An Adequate And Independent State

Ground For The Decision.

The Appellant’s failure to assign as error to the Tennessee

Supreme Court the alleged unconstitutional application of

TENN. CODE ANN. §36-825 (1977) and her subsequent at-

tempt to raise the issue by way of a petition for rehearing were,

as hereinabove set forth, additional sufficient grounds for that

court to also refuse to review the issue. Therefore, these pro-

cedural errors, as was the case in the Tennessee Court of Ap-

peals, constitute adequate state grounds for the decision. The

Court must accordingly dismiss the appeal on that basis.

IV.

This Court Must Decline Jurisdiction Because The Case

Involves No Substantial Federal Question.

Under 28 U.S.C. §1257(2), there must be a federal question in

order to invoke the jurisdiction of the United States Supreme

Court. The mere presence of a federal question, however, will

not permit review unless that question is a substantial one. An

examination of the question sought to be reviewed by Appellant

discloses that it is not a substantial federal question and this

Court should therefore dismiss her appeal.

In Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3

(1945), the Court dismissed an appeal for want of a substantial

federal question from a state condemnation proceeding. There,

the appellant contended that the statute that allowed the state’s

entry upon the land and physical alteration thereof in advance

of the appointment of commissioners who were to set the value

of the land as applied to him denied him due process of law. The

— vo

United States Supreme Court, however, held that due process

merely guaranteed the landowner the opportunity to be heard

and to present evidence as to the value of the land taken stating

that:

Here appellant was given full opportunity to be heard and

to introduce evidence before the Commissioners. They

could, upon the evidence submitted, take into account the

alterations of the property after the taking and before the

view; such was their duty under the statute. Their award is

made subject to judicial review . . . and may be set aside if

plainly wrong or without support in the evidence. [cita-

tions omitted] In this we find no denial of due process and

appellant’s contention presents no substantial constitu-

tional question... .

326 U.S. at 205, 66S. Ct. at 67-68, 90 L.Ed. at 5 (emphasis sup-

plied). Appellant in the instant case was offered the same pro-

cedural benefits. She was given a trial at which she could present

evidence; that trial was subject to appellate review and the

court’s findings could have been set aside if plainly wrong or

without support in the evidence had the Appellant properly

prepared her appeal. The instant case, therefore, presents no

more of a federal question than did Bailey and warrants a

dismissal of the appeal.

The Court has similarly held that the due process clause of the

fourteenth amendment does not enable it to review errors of

state law however material those errors might be. For example,

in Baker v. Druesedow, 263 U.S. 137, 44S. Ct. 40, 68 L.Ed. 212

(1923), a railroad contended that overvaluation of intangibles

for purposes of taxation was so gross and palpable as to amount

to a denial of due process. The trial court, however, found the

valuation to represent the honest judgment of the board and

this holding was approved by the state’s highest court. The

United States Supreme Court refused to grant review, however,

noting that ‘‘[mJere errors of judgment are not subject to review

a Th

in this [Court ].’’ 263 U.S. at 142, 44S. Ct. at 42, 68 L.Ed. at

215; accord Buchalter v. New York, 319 U.S. 427, 63 S. Ct.

1129, 87 L.Ed. 1492 (1943).

In the case at bar, the aforementioned principles compel this

Court to disrniss the appeal for want of a substantial federal

question. A ‘‘mere error in judgment”’ or an insufficiency of the

evidence would not, under the clear language in Baker, supra,

present a substantial federal question to this Court. Further-

more, as the Appellant herself points out, TENN. CODE ANN.

§36-825 (1977) had been specifically construed in the Kittrell

decision to preclude a taking of property that would violate the

fourteenth amendment. Therefore, the Tennessee courts merely

interpreted the statute and Kittrell to determine if the facts fell

within those parameters of ‘‘justness’’ and ‘‘reasonableness’’.

These are clearly state law questions. Therefore, for want of a

substantial federal question, this Court must dismiss the instant

appeal.

—

CONCLUSION

Appellee respectfully urges that this Court dismiss the appeal,

or, in the alternative, affirm the decision of the Tennessee Court

of Appeals due to Appellant’s failure to draw into question in

the state court the validity of the statute now challenged; Ap-

pellant’s failure to timely or properly raise the unconstitutional

application of the statute in the state court; the fact that the

decision of the state court rests upon adequate non-federal

grounds; and the fact that a substantial federal question has not

been presented.

Respectfully submitted,

THOMAS H. PEEBLES, Iii

TRABUE, STURDIVANT & DeWITT

26th Floor, L & C Tower

Nashville, Tennessee 37219

FRANK D. FARRAR

102 Scottsville Hwy., Box 280

Lafayette, Tennessee 37083

SOLON W. FITZPATRICK

Carthage, Tennessee 37030

Counsel for Appellee

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that service of three (3)

copies of the foregoing motion and brief in support thereof was

made in accordance with paragraph 1 of Rule 33 of the United

States Supreme Court by delivery to Grant W. Smith, Suite 300,

Young Executive Building, P.O. Box 24927, Nashville, TN

37202.

THOMAS H. PEEBLES, III