Opposition — One 1976 Ford Truck Van v. Pennsylvania

Office-Supreme f con tae

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No. 80-1676 JUN 26 1981 |

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IN THE Sty vena ~- name as

SUPREME COURT OF THE UNITED STATES

October Term, 1980

ONE 1976 FORD TRUCK VAN,

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

On Petition for Writ of Certiorari to the Supreme Court

of Pennsylvania.

RESPONDENT’S BRIEF IN OPPOSITION

WILLIAM H. PLATT

District Attorney

Lehigh County Courthouse

P.O. Box 1548

Allentown, PA 18105

(215) 820-3100

Attorney for Respondent

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19107 (215) 561-4050

COUNTER-STATEMENT OF

QUESTION PRESENTED

Can a state court deny standing to challenge a

claimed lack of a statutory provision for notice and hear-

ing in a state forfeiture statute on the basis that the

owner of the vehicle received actual notice and an oppor-

tunity to be heard, and that the state statute has been

construed by an intermediate state appellate court as

providing for and requiring notice and hearing?

II.

Il.

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTION PRE-

I ah Wrara-k spo 5 on Ww ee ee ck bee av,

PE nies 65 Rc Rpeu vest ce teenies

REASONS FOR DENYING THE WRIT .......

THERE IS NO SUBSTANTIAL FED-

ERAL QUESTION INVOLVED SINCE

THERE IS AN INDEPENDENT STATE

GROUND FOR THE DECISION OF

THE PENNSYLVANIA SUPREME

rT en oe Bie bile sie o b.0e ab ee ve

PETITIONER, SINCE HE RECEIVED

NOTICE AND AN OPPORTUNITY TO

BE HEARD, DOES NOT HAVE A SUFFI-

CIENT INTEREST TO SATISFY THE

“CASE AND CONTROVERSY” RE-

QUIREMENT OF ARTICLE III OF THE

CRP CREO SITE ccc ete rsvctevecess

THE DECISION OF THE PENNSYLVA-

NIA SUPREME COURT COMPORTS

WITH CASE LAW OF THIS COURT AS

TO BOTH PROCEDURAL DUE PROC-

ESS AND STANDING ...............

se rhea nivn nan Ve RS Kee eke es

Cases:

TABLE OF AUTHORITIES

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ....

Coe v. Armour Fertilizer Works, 237 U.S. 413

| MAR iA ARGS eae te ee

2

TABLE OF AUTHORITIES (Continued)

Cases: Page

Commonwealth v. One 1976 Ford Truck Van,

Pa. , 424 A.2d 1323 (1981) ...........

Doremus v. Board of Education, 342 U.S. 429

eR er

Eisenstadt v. Baird, 405 U.S. 438 (1972) .......

Fidelity Union Trust Company v. Field, 311 U.S.

Care a vc cbc cc ‘c cease

Jennings v. Mahoney, 404 U.S. 25 (1971) ......

One 1965 Buick 4 Door Sedan v. Commonwealth, 46

Pa. Cmwth. 189, 408 A.2d 157 (1979) ......

Paulsen v. Portland, 149 U.S. 30 (1895) ........

Six Companies of California v. Joint Highway Dist.

No. 311 U.S. 180 (1940) ........... 0000

U.S. v. Raines, 362 U.S. 17 (1960) ............

U.S. v. Thirty-Seven Photographs, 402 U.S. 363

Gg FM en rr

West v. American Telephone & Telegraph Company,

SED Ci ee eects ccc cence

Wiren v. Eide, 542 F.2d 757 (9th Cir. 1976)

Articles:

Annot., Comment Note: Supreme Court’s Views as

to Party’s Standing to Assert Rights. of Third

Persons (Jus Tertii) in Challenging Constitu-

tionality of Legislation, 50 L.Ed. 2d 902 ....

Note, Standing to Assert Constitutional Jus Tertii,

88 Harv. L.Rev. 423 (1974) .........0005.

Sedler, Standing to Assert Constitutional Jus Tertii

in the Supreme Court, 71 Yale L.J. 599 (1962)

iii

3

No. 80-1676

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

ONE 1976 FORD TRUCK VAN,

Petitioner

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

On Petition for Writ of Certiorari to the Supreme Court

of Pennsylvania

RESPONDENT'S BRIEF IN OPPOSITION

The respondent Commonwealth of Pennsylvania re-

spectfully requests that this Court deny the Petition for

Writ of Certiorari, seeking review of the Opinion of the

Supreme Court of Pennsylvania in this case entered on

February 5, 1981, and reported at Pa. , 424

A.2d 1323 (1981).

JURISDICTION

Respondent questions this Court's jurisdiction to re-

view the decision of the Pennsylvania Supreme Court for

the reasons hereinafter stated. The petitioner claims ju-

l

2

risdiction under 28 U.S.C. §1257 (3), although his peti-

tion in his Statement of Jurisdiction inadvertently and

incorrectly refers to 27 U.S.C. §1257 (3).

REASONS FOR DENYING THE WRIT

1. THERE IS NO SUBSTANTIAL FEDERAL QUES-

TION INVOLVED SINCE THERE IS AN INDE-

PENDENT STATE GROUND FOR THE DECISION

OF THE PENNSYLVANIA SUPREME COURT.

In the opinion herein below, Commonwealth v. One

1976 Ford Truck Van, _____ Pa. , 424 A.2d 1323,

1324, fn. 2, p.11 of the within petition, the Pennsylvania

Supreme Court notes that contrary to petitioner’s claim

herein that the Pennsylvania state forfeiture statute

lacks provisions for notice and a hearing, that Act has

been interpreted by the Commonwealth Court of Penn-

sylvania, a state-wide intermediate appellate court, in

One 1965 Buick 4 Door Sedan v. Commonwealth, 46 Pa.

_ Cmwith. 189, 408 A.2d 157 (1979) Alloc. Den. (1980), to

so require. This interpretation of a state statute should

be followed by the Federal Courts, including the United

States Supreme Court. Wee Fidelity Union Trust Com-

pany v. Field, 311 U.S. 169, 178-79 (1940); West v.

American Telephone and Telegraph Company, 311 U.S.

223, 237-38 (1940); Six Companies of California v.

Joint Highway Dist. No. 13, 311 U.S. 180, 188 (1940).

II. PETITIONER, SINCE HE RECEIVED NOTICE AND

AN OPPORTUNITY TO BE HEARD, DOES NOT

HAVE A SUFFICIENT INTEREST TO SATISFY

THE “CASE AND CONTROVERSY” REQUIRE-

MENT OF ARTICLE III OF THE CONSTITUTION.

As noted in Broadrick v. Oklahoma, 413 U.S. 601,

610-11 (1973), “. . . under our constitutional system

3

courts are not roving commissions assigned to pass

judgment on the validity of the nation’s laws.” Since pe-

titioner has not been injured-in-fact, he lacks standing

to challenge the Pennsylvania forfeiture statute. See

Eisenstadt v. Baird, 405 U.S. 438, 443 n.4 (1972);

Doremus v. Board of Education, 342 U.S. 429, 434

(1952); Annot., Comment Note: Supreme Court’s Views

as to Party’s Standing to Assert Rights of Third Persons

(Jus Tertii) in Challenging Constitutionality of Legisla-

tion, 50 L.Ed. 2d 902; Note, Standing to Assert Consti-

tutional Jus Tertii, 88 Harv. L.Rev. 423 (1974); Sedler,

Standing to Assert Constitutional Jus Tertii in the Su-

preme Court, 71 Yale L.J. 599 (1962).

Ill. THE DECISION OF THE PENNSYLVANIA SU-

PREME COURT COMPORTS WITH CASE LAW OF

THIS COURT AS TO BOTH PROCEDURAL DUE

PROCESS AND STANDING.

In Paulsen v. Portland, 149 U.S. 30, 37 (1893), this

Court held that an express statutory provision for notice

and hearing are not constitutionally required, since all

statutes are implicitly subject to the constitutional re-

quirements of procedural due process. Where notice and

opportunity to be heard are provided administratively,

this is not a matter of grace, but rather in compliance

with constitutional mandate.

On Page 7 of his brief, petitioner cites Coe v.

Armour Fertilizer Works, 237 U.S. 413, 425 (1914), to

support his argument that extra-statutory notice cannot

be deemed a substitute for due process. It is submitted,

first, that this portion of Coe was dictum, since the hold-

ing there was that notice and opportunity to be heard

were required prior to execution on a judgment against a

corporation issuing against a stockholder indebted to the

corporation on a subscription agreement. Coe, the

stockholder, “knew” about the judgment against the

corporation, but such knowledge of the existence of the

4

judgment was not sufficient to permit pre-hearing ex-

ecution against his assets.

On Page 8 of his brief, petitioner alleges that Coe

“... is still good law,” and cites United States v. Thirty-

seven Photographs, 402 U.S. 363 (1971) in support of

the proposition, in the words of petitioner’s brief, that:

“It is only where a forfeiture statute contains an ab-

solute requirement that a... forfeiture complaint

be filed and hearing held within a specified period of

time that such statutes have been constitutionally

upheld.”

Petitioner has misrepresented the holding of that

case, which, it is submitted is in accord with respon-

dent’s position, since in Thirty-seven Photographs, your

Honorable Court “wrote into” the statute, which was si-

lent on the subject, specific time limitations, so the stat-

ute would comport with due process.

As noted by Judge Koelsch in Wiren v. Eide, 542

F.2d 757, 762-63 (9th Cir. 1976), the dictum of Coe, and

the holding of several other decisions of this Court

therein cited must be read in light of your more recent

self-imposed rules of restraint in deciding constitutional

questions. See United States v. Raines, 362 U.S. 17

(1960).

The most recent statement of the now-applicable

rule of this Court found by respondent is in Jennings v.

Mahoney, 404 U.S. 25, 26 (1971);

“There is plainly a substantial question whether the

Utah statutory scheme on its face affords . . . proce-

dural due process... this case does not, however,

require that we address that question. The District

Court (of the State of Utah) in fact afforded this ap-

pellant such procedural due process.” (Emphasis

added).

5

CONCLUSION

For all the foregoing reasons, it is respectfully sub-

mitted that the petition should be denied.

DATED: June 25, 1981

Respectfully submitted:

WILLIAM H. PLATT

District Attorney

Lehigh County Courthouse

P.O. Box 1548

Allentown, PA 18105

(215) 820-3100

Counsel for Respondent

PROOF OF SERVICE

I, William H. Platt, Attorney for Respondent herein,

and a member of the Bar of the Supreme Court of the

United States, do hereby certify that on the 25th day of

June, 1981, three copies of the foregoing Brief in Oppo-

sition to Petition for Certiorari were mailed by first class

mail to Alan Ellis, Esquire, Counsel for Petitioner, Suite

2200, 1616 Walnut Street, Philadelphia, Pennsylvania

19103. I further certify that all parties required to be

served have been served.

Coe a

WILLIAM H. PLATT

District Attorney

Lehigh County Courthouse

P.O. Box 1548

Allentown, PA 18105

(215) 820-3100