Petitioners Reply Brief — Frackelton v. Swanson

Office-Supreme Court, U.S,

a FILED

* SEP 8 1981

No. 80-2016 ALEXANDER 1. STEVAG,

In the Supreme Court of the United States

October Term, 1980

JAMES P. FRACKELTON,

Petitioner,

vs.

GUS SWANSON, VIRGINIA SWANSON,

SHIA SHAPIRO,

Respondents.

On Petirion ror A Writ or CERTIORARI TO THE

Onto Supreme Court

PETITIONER’S REPLY BRIEF

Donatp M. Rosiner, Counsel of Record

Pau. F. Levin

SCHWARZWALD, Rosinern, Wotr & Rock,

A Legal Professional Association

616 Bond Court

1300 East Ninth Street

Cleveland, Ohio 44114

216/566-1600

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL, (216) 621-5647

TABLE OF CONTENTS

ARGUMENT 1

The Constitutional Claims Presented Were Suf-

ficiently Raised In The State Courts, And Decided

There es 2

CONCLUSION 4

TABLE OF AUTHORITIES

Cases

Braniff Airways v. Nebraska State Board, 347 U.S. 590

(1954) 2

Charleston Federal Savings v. Alderson, 324 U.S. 182

(1945) 3,4

Crowell v. Randell, 35 U.S. 365 (1836) .. 2

Konigsberg v. State Bar of California, 353 U.S. 252

(1956) 4

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

(1978) 2

Raley v. Ohio, 360 U.S. 423 (1959) 4

Saltonstall v. Saltonstall, 276 U.S. 260 (1928) ................ 3

Street v. New York, 394 U.S. 576 (1969) : 3

Thompson v. City of Louisville, 362 U.S. 199 (1960) ...... 4

Vachon v. New Hampshire, 414 U.S. 478 (1974), reh.

den., 415 U.S. 952 ....... - 4

No. 80-2016

In the Supreme Court of the United States

October Term, 1980

JAMES P. FRACKELTON,

Petitioner,

vs.

GUS SWANSON, VIRGINIA SWANSON,

SHIA SHAPIRO,

Respondents.

On PETITION FoR A Writ of CERTIORARI TO THE

Onto Supreme Court

PETITIONER’S REPLY BRIEF

ARGUMENT

Respondents contend that petitioner improperly in-

vokes the jurisdiction of this Court by having failed to

sufficiently and properly raise the federal question in

the state courts. Petitioner submits this reply brief in

support of his petition and in response to Respondents’

allegations.

THE CONSTITUTIONAL CLAIMS PRESENTED

WERE SUFFICIENTLY RAISED IN THE STATE

COURTS, AND DECIDED THERE.

Review of the briefs filed by petitioner in both the

trial court and the Ohio Court of Appeals reveals that

petitioner asserted that the practice of medicine is a pro-

tected property right under the Constitutions of the United

States and Ohio; and that interference with this property

right constitutes an unconstitutional deprivation of prop-

erty. (Page 11, Brief in Opposition to Motions to Dismiss;

and pages 19 and 20, Assignments of Error and Brief filed

in the Court of Appeals of Ohio, Eighth Appellate Dis-

trict, copies of which briefs have been lodged with the

Clerk of the Supreme Court by respondents). Respon-

dents concede that the constitutional issues were clearly

raised in the memorandum in support of jurisdiction filed

by petitioner in the Supreme Court of Ohio.

While respondents may question the precision with

which the constitutional issues were raised, it cannot be

denied that such issues were raised. This Court has stated

that in order to preserve a constitutional issue for review,

a party need not state the issue in totidem verbis, so

long as the issue is raised by a necessary inference from

the facts. Crowell v. Randell, 35 U.S. 365 (1836). Nor

need the specific federal right or constitutional provision

be set out in order to give this Court jurisdiction to review

a state court decision. If the record demonstrates that a

federal question has been brought to the attention of a

state court either expressly or by clear intendment, ju-

risdiction is preserved. New York ex rel. Bryant v. Zim-

merman, 278 U.S. 63 (1978). See also, Braniff Airways

v. Nebraska State Board, 347 U.S. 590 (1954).

3

Furthermore, even if there was some colorable lack

of precision in framing the constitutional question before

the courts below, the question was clearly placed before

the Ohio Supreme Court, and that Court ruled on the

issue. Reference to the Ohio Supreme Court’s order dis-

missing the appeal (Appendix A-2, to the petition for

writ of certiorari), reveals that the Supreme Court of

Ohio sua sponte dismissed petitioner’s appeal “for the rea-

son that no substantial constitutional question exists

herein”. In order to reach such a conclusion, the Ohio

Supreme Court must necessarily have considered the con-

stitutional issue. The only constitutional issue which was

presented before the Ohio Supreme Court is the precise

constitutional issue presented here, i.e. that dismissal of

the malicious prosecution action violated petitioner’s due

process and equal protection rights guaranteed by the

United States Constitution. The Ohio Supreme Court

could have considered and dismissed no other constitu-

tional question, for no other constitutional question was

raised. It is well established that even in face of a de-

ficiency in the particularity with which a federal issue

was framed below, that deficiency is cured if the highest

state court assumed that the federal question was prop-

erly before it and expressly considered and decided same.

Thereafter, this Court will not inquire into the framing

of the issue below. Saltonstall v. Saltonstall, 276 U.S, 260

(1928); ‘Charleston Federal Savings v. Alderson, 324 U.S.

182 (1945). Moreover, a state court’s refusal or failure

to articulate its denial of a federal claim is just as review-

able as an express decision. The question of whether the

issue was raised properly is itself a federal question, as to

which this Court is not bound by the state court decision.

Street v. New York, 394 U.S. 576 (1969). After a state

supreme court has decided a constitutional issue, any in-

quiry as to how or when the issue was raised is considered

4

irrelevant by this Court, and an irrebuttable presumption

exists that the issue was properly raised below. Charles-

ton Federal Savings v. Alderson, supra, This is true

even if the issue was raised in the assignments of error

only. The lower court is still deemed to have considered

the question. Konigsberg v. State Bar of California, 353

U.S. 252 (1956).

Finally, even in the absence of a showing that a con-

stitutional issue was raised at the earliest possible time,

this Court has never precluded itself from considering

such constitutional issues. This Court has exercised re-

view with respect to plain errors of constitutional propor-

tions not raised below. Vachon v. New Hampshire, 414

U.S. 478 (1974), reh. den., 415 U.S. 952; Thompson v, City

of Louisville, 362 U.S. 199 (1960). If various rights, priv-

ileges and immunities are claimed, certiorari has been

granted to determine issues of great public importance.

Raley v. Ohio, 360 U.S. 423 (1959).

CONCLUSION

For the reasons advanced in the petition for writ of

certiorari, and in this reply brief, the petition for writ of

certiorari should be granted.

Respectfully submitted,

ScCHWARZWALD, Ropiner, Wotr & Rock,

A Legal Professional Association

Donatp M. Rosiner, Counsel of Record

Pau. F. LEvIn

616 Bond Court

1300 East Ninth Street

Cleveland, Ohio 44114

216/566-1600

Attorneys for Petitioner