# Motion to Dismiss or Affirm — Porter v. Porter > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1398%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1061 ## Text 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 ©. — 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 — 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1398%3A2. Public record. Not legal advice.