# Petitioners Reply Brief — Frackelton v. Swanson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2195%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1981 - **Citation:** 454 U.S. 879 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2195%3A4. Public record. Not legal advice.