# Petition — Speed v. Goodner ex rel. Hadley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 863

## Text

October Term 1982

STATE OF WASHINGTON, ex rel.
SHANA MARIE GOODNER, a minor,
by her Guardian ad Litem,
REED HADLEY, and
DIANA LYNN GOODNER,
Respondents,

Ve
CHARLES WILLARD SPEED,

Petitioner.

On Certiorari from the Supreme Court

of the State of Washington

Barry J. Dahl

, MERTSCHING,
HUSEMOEN, DONALDSON & BARLOW
1000 Twelfth Avenue, Suite 2
P. O. Box 1549
Longview, WA 98632
Telephone: (206) 423-5220

Attorneys for Petitioner

QUESTION PRESENTED FOR REVIEW

Is an act of a territory reviewable
by the supreme court of the successor
state such that the state supreme court
may declare the territorial enactment
null and void and thus deny the right to
a trial by jury in a civil cause of

action?

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .
OPFICIAL OPINIONS ...+«-e«-e«-e-s
GROUNDS OF JURISDICTION ....

CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES INVOLVED .

STATEMENT OF THE CASE ...-s -

ARGUMENTS AND REASONS FOR
GRANTING THE WRIT . «2+ «+ «© @ «

A. Jurisdiction of State
Supreme Court ..-e«-ee-s

B. Supremacy and Territorial
Clauses of U.S.
Constitution . . «eee -s.

C. The Supreme Court has
Misconstrued its
Jurisdiction . . .« .«+«e-s.
l. Purpose Violated...

2. Enabling Act Rationale
Incorrect “eeeee

APPENDIX A . «+ ee ee © © © &
APPENDIX B . «eee eesese
APPENDIX C 2. + ee eee eee
APPENDIX D «2+ «© e e+e ee @ »

17

iii

Table of Cases

Bowles vy. Barde Stee] Co.,,
177 Or. 421, 164 P.2d 692, 162

A.L.R.

328 (1945) «ec ececveee
, 42 Pa.

Byers vy. Commonwealth
89, 94 (1862) > > + . i >. - > oe 7. -

Coupe, 37 Cal. 2d 283, 231
P.2d 832 (1951) «2-2 ee ee eee

, 85 U.S. 317, 21

Snow vy. U.S.
LeBG. 784 (1880) . «ee we we ee

, 16 Wash. 382,

Doherty
42 P. 958 (1897) | a ke a 11-12,

» 26 Wn. App.

State vy. Speed
648, 613 P.2d 1207 (1980) ....-.

State vy. Tieman
32 Wash. 294, 73 P. 375

(1903)

eoesvecce «6 Bee 14, 16, L136

Testa vy. Katt, 330 U.S.
386, 91 L.Ed. 967, 67 S.Ct.
810 (1947) -. & £60 oo ero @ Oe @

&Ind,., 52 Wash. 2d 33,
323 P.2d 241 (1958) . « «© «© © we @ «

, 435 U.S.

U.S. v. Wheeler
313, 55 L.Ed. 2d 303, 98

S.Ct.

1079 (1978) ~. 2. «ee eee

25

22

22

19

10

27

20

16

18

iv

Constitutional Provisions
Oo8. Comet. O@€0 IZ, Sl cee ec eee aa

U.S. Const. art. IlI, §1 .
U.S. Const. art IV, §3 ..
U.S. Const. art VI ..«-.
U.S. Const. art VI, §2 ..
Wn. St. Const. art l, §21 .
Wn. St. Const. art 4, §4 .
Wn. St. Const. art 2, §19 .

Statutes
RCW 2.04.010 . «. «+ » e© @ «
RCW 26.26.120(5) .. ++ «
RCW 26.26.150(2) .. +s

The Organic Act, Ch. 90, §6
10 Stat., 172 (1853) ...

The Enabling Act, Ch. 180,
§§4, 22, 23, 25 Stat., 676
(1889) . . . . oe . . 7 . .

26 Stat., Proclamations, p.
Nov. ll, 1889 . . « «© © « e

Washington Territorial Code
of 1881, ch. LXVI, §1078,
UZiG-l2ZZld ec cece eeee

- 4,

. . 3
- 4, 18

« 7, ll

- 8, 10

Other Authorities

16 Am. Jur. 24 Constitutional
Bae 876 (1979) «ee ec ec eeeee 2

20 Am. Jur. 2d Courts §91
(1965) . . . . . . . . . . ° . . . 15

IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1982

STATE OF WASHINGTON, ex rel.
SHANA MARIE GOODNER, a minor,
by her Guardian ad Litem,
REED HADLEY, and
DIANA LYNN GOODNER,
Respondents,

Ve
CHARLES WILLARD SPEED,

Petitioner.

On Certiorari from the Supreme Court
of the State of Washington

OFFICIAL OPINIONS
The reported opinion in the instant
case by the Washington State Court of

Appeals, Division II, can be found at 26
Wash. App. 648, 613 P.2d 1207 (1980).

The reported opinion by the
Washington State Supreme Court in the
instant case can be found at 96 Wash. 2d
838, _..__ P.2d_.. (See Appendix A.)

GROUNDS OF JURISDICTION

The judgment which is sought te be
reviewed is that of the Washington State
Supreme Court which was filed on January
15, 1982. A timely Motion for Reconsid-
eration was filed and the Order Denying
the Motion for Reconsideration was dated
April 28, 1982. The jurisdiction of this
Court to review the decision of the
Washington State Supreme Court is
conferred by 28 U.S.C. §1257(3).

Because the constitutionality of the
Territorial Act of 1881, an act of
Congress, is drawn in question and 28
U.S.C. §2403(a) may be applicable, notice
should be served on:

Washington State statutes,
26 -26.120(5) ’
U.S.C.

The Solicitor General
Department of Justice
Washington, D.C. 20530

Because the constitutionality of

§2403(b) may be applicable, notice

should be served on:

Hon. Ken Eikenberry
Attorney General of the
State of Washington

Temple of Justice
Olympia, WA 98504
(206-284-5716)

l.

AED RULES INVOLVED
U. s. Const. art. III, §l:

$1. Judicial power; tenure of
office

Section 1. The judicial
Power of the United States, shall
be vested in one supreme Court,
and in such inferior Courts as
the Congress may from time to
time ordain and establish. The
Judges, both of the supreme and
inferior courts, shall hold their
Offices during good Behaviour,
and shall, at stated Times,
receive for their Services, a
Compensation, which shall not be
diminished during their
Continuance in Office.

RCW

is in question and 28

2. U. s. Const. art IV, §3:

$3. Admission of new states;
power over territory and other

property

Section 3. New States may
be admitted by the Congress into
this Union; but no new State
shall be formed or erected within
the Jurisdiction of any other
State; nor any State be formed by
the Junction of two or more
States, or Parts of States,
without the Consent of the
Legislature of the States
concerned as well as of the
Congress.

The Congress shall have
Power to dispose of and make all
needful Rules and Regulations
respecting the Territory or other
Property belonging to the United
States; and nothing in this
Constitution shall be so
construed as to Prejudice any
Claims of the United States, or
of any particular State,

3. U. S. Const. art. VI, §2:

This Constitution, and the
Laws of the United States which
shall be made in Pursuance
thereof; and all Treaties made,
or which shall be made, under the
Authority of the United States,
shall be the supreme Law of the
Land; and the Judges in every
State shall be bound thereby, any
Thing in the Constitution or Laws

of any State to the Contrary
notwithstanding.

4. Wn. St. Const. art. 1, §21:

$21. Trial by Jury. The right
of trial by jury shall remain
inviolate, but the legislature
may provide for a jury of any
number less than twelve in courts
not of record, and for a verdict
by nine or more jurors in civil
cases in any court of record, and
for waiving of the jury in civil
cases where the consent of the
parties interested is given
thereto.

5. Wn. St. Const. art. 4, §4:

$4. Jurisdiction. The supreme
court shall have original
jurisdiction in habeas corpus and
quo warranto and mandamus as to
all state officers, and appellate
jurisdiction in all actions and
proceedings, excepting that its
appellate jurisdiction shall not
extend to civil actions at law
for the recovery of money or
personal property when the
original amount in controversy,
or the value of the property does
not exceed the sum of two hundred
dollars, unless the action
involves the legality of a tax,
impost, assessment, tool,
municipal fine, or the

of a statute. The supreme court
shall also have power to issue
writs of mandamus, review,
prohibition, habeas corpus,
certiorari and other writs

necessary and proper to the
complete exercise of its
appellate and revisory
jurisdiction. Each of the judges
shall have power to issue writs
of habeas corpus to any part of
the state upon petition by or on
behalf of any person held in
actual custody, and may make such
writs returnable before himself,
or before the supreme court, or
before any superior court of the
state or any judge thereof.

(Emphasis added.)
6. Revised Code of Washington
26 .26.1°0(5):

The trial shall be by the
court without a jury. [Added by
Laws 2nd Ex Sess 1975-76 ch 42
$13.)

7. Revised Code of Washington
2.04.010:

2.04.010 Jurisdiction. The
supreme court shall have original
jurisdiction in habeas corpus and
quo warranto and mandamus as to
all state officers, and appellate
jurisdiction in all actions and
proceedings excepting that its
appellate jurisdiction shall not
extend to civil actions at law
for the recovery of money or
personal property when the
Original amount in mean | or
the value of the property does

not exceed the sum of two hundred
dollars, unless the action
involves the legality of a tax,
impost, assessment, toll,
municipal fine, or the validity
of a statute. The supreme court
shall also have power to issue
writs of mandamus, review,
prohibition, habeas corpus,
certiorari, and all other writs
necessary and proper to the
complete exercise of its
appellate and revisory
jurisdiction. Each of the judges
shall have power to issue writs
of habeas corpus to any part of
the state, upon petition by or on
behalf of any person held in
actual custody, and may make such
writs returnable before himself
or before the supreme court, or
before any superior court of the
state, or any judge thereof.

8. An Act to Establish the
Territorial Government of Washington (The
Organic Act, Ch. 90, §6, 10 Stat., 172
(1853): (See Appendix B).

9. An Act to . « « enable the
people of . . .Washington to form
constitutions and state governments and
to be admitted into the Union on an equal

footing with the original states ....

(The Enabling Act, Ch. 180, §§4, 22, 23,
25 Stat., 676 (1889): (See Appendix C).

10. Washington Territorial Code of
1881, ch. LXVI, §1078, 1214-1221: (See
Appendix D).

ll. Wn. St. Const. art. 2, §19:
$19. Bill to Contain One
Subject. No bill shall embrace
more than one subject, and that
shall be expressed in the title.

STATEMENT OF THE CASE

The Petitioner, Charles Willard
Speed, was accused by a Complaint in 1978
of being the father of Shana Marie
Goodner. The Petitioner requested a jury
trial, which request was denied on the
basis that the Uniform Parentage Act
passed by the Washington Legislature
prohibits trial by jury [See RCW
26.26.120(5)]. The Petitioner alleged
that he had a constitutionally protected
right to a trial by jury because citizens
of the Territory of Washington had been

guaranteed that right at the time of the
adoption of the Washington State
Constitution, The Supreme Court of the
State of Washington held to the opposite.
Thus, the instant question.

The question of whether or not the
Washington State Supreme Court could hold
a territorial act to be null and void was
raised in the Washington State Court of
Appeals, which passed on the issue as
follows:

As interpreted in State ex rel.
Mullen vy. Doherty, 16 Wash. 382,
384, 47 P. 958 (1897), the
state's constitution protects the
right of trial by jury as it
existed in the territory at the
time the constitution was
adopted. Defendant urges that,
in light of the right to jury
trial provided in bastardy
proceedings under the Territorial
Code of 1881, ch. LXVI, § 1919,
he should be provided a similar
right despite RCW 26.26.120(5).
That portion of the Territorial
Code relating to illegitimate
children, however, was held to
have been improperly enacted in
State v. Tieman, 32 Wash. 924, 73
P. 375 (1903). The effect of
that determination was to revive

10

the law as it stood prior to the
enactment of the Territorial
Code. Boeing Co. vy. State, 74
Wn.2d 82, 442 P.2d 970 (1968).
Accordingly, because no right to
jury trial in filiation
proceedings existed at the time
the state constitution was
enacted, defendant does not now
have a meritorious constitutional
challenge to RCW 26.26.120(5).

State vy. Speed, 26 Wn. App. 648, 649, 613
P.2d 1207 (1980).

The Supreme Court of the State of
Washington dealt extensively with the
issue (see Appendix A) of the grant of
authority to state supreme courts by
Congress. (96 Wash. 2d 838, 844-846.)

The specific questions presented
herein can be viewed from the following
facts:

1. The Organic Act, which created
the Washington Territory, was passed by
Congress in 1853. (See Appendix B.)

2. The Washington Territorial Code
of 1881, which was passed by the

territorial legislature, enacted the

1l

Bastardy Act and gave a right of trial by
jury to an accused father. (See Appendix
D.)

3. The énabling Act, approved
February 22, 1889, enabled the people of
the Territory of Washington to form a
constitution, to be admitted as a state,
and provided in Sec. 24 that "[A]11l laws
in force made by said Territories, at the
time of their admission into the Union,
shall be in force...." (See Appendix
Cc.)

4. The Washington State
Constitution was adopted in October,
1889, and provided that the right to a
trial by jury shall remain inviolate.
(See Wn, St. Const. art. 1, §21.)

5. The Washington State
Constitution protects a right to trial by
jury as it existed in the territory at
the time of the adoption of the state
constitution. State, ex rel. Mullen vy.

12

Doherty, 16 Wash. 382, 384, 42 P. 958
(1897).

6. Washington became a state by
presidential proclamation on November ll,
1889. (26 Stat., Proclamations, p. 10,
Nov. 11, 1889.)

7. In 1903 the Washington State
Supreme Court declared the Bastardy Act
to be invalid. (State vy. Tieman, 32
Wash. 294, 73 P. 375 (1903).)

8. In 1976 the Washington State
Legislature enacted the Uniform Parentage
Act which denied the right to a jury
trial to accused fathers. (RCW
26 .26.150(2) .)

9. The Washington State Supreme
Court, in deciding the constitutionality
of the Uniform Parentage Act, held that
since Section 22 of the 1889 Enabling Act
made the Washington State Supreme Court
the successor of the supreme court of the

territory, the Washington State Supreme

13

Court had the jurisdiction to declare
territorial acts invalid. The supreme
court reasoned that the nullity went to
the incipience of the territorial act;
and, thus, there was in fact no protected
right to a jury trial in the territory at
the time of the adoption of the
Washington State Constitution. (See
Appendix A.)

Thus, if the Supreme Court of the
State of Washington did not receive the
authority to declare a territorial act a
nullity, the right to a jury trial in
Bastardy or Uniform Parentage Act cases
exists as a protected right to the
citizens of the State of Washington and
the legislative enactment denying that
right is unconstitutional.

ARGUMENT AND REASONS FOR
GRANTING THE WRIT
This case presents important

questions of federal law which have not

14

been, but should be, decided concerning
the jurisdiction of successor state
courts and their authority to declare
acts of Congress void,

It is asserted in this petition that
the Washington State Supreme Court in
Tieman, supra, did not have the
"jurisdiction" to invalidate an act of
the federal government; i.e., the
Territory of Washington. Further, it is
urged that the Washington State Supreme
Court has misconstrued the grant of
Congress in the Enabling Act wherein it
named “successor courts." This argument
will proceed on three bases:

l. The grant of jurisdiction to
the Supreme Court of Washington only
permits review of the invalidity of
Washington State statutes,

2. By federal law under the
Supremacy Clause of the United States
Constitution, Article VI, the state

15

Supreme court is plainly without
jurisdiction to invalidate a federal act,

3. The Washington State Supreme
Court was not granted the authority to
invalidate territorial acts by being
named as the successor to the Washington
Territorial Supreme Court.

A. Jurisdiction of State Supreme

Court.

A court possesses only such
jurisdictional powers as are conferred by
the constitution or legislation of the
sovereign under which it functions and
Congress cannot vest the judicial power
of the United States in state courts (20
Am. Jur. 24 Courts §91 (1965)). In
Washington, the grant of jurisdiction to
the supreme court is found in Article 4,
Section 4, of the Washington State
Constitution and in RCW 2.04.010.

16

Pursuant to both of those grants,
the supreme court has jurisdiction over
the validity of "statutes." Further, it
is plainly the duty of the court to
invalidate “statutes” if they contravene
the state constitution (Windust vy. Dept.

of Labor & Ind.,- 52 Wash. 2d 33, 37, 323
P.2d 241 (1958).

There plainly is no grant of
jurisdiction to render federal laws
invalid. Thus, simply from this brief
analysis, it can be seen that an attempt
to invalidate an act which was not one of
the sovereign, the state of Washington,
is not within the jurisdiction of the
state supreme court.

The authority and jurisdiction of
the state supreme court could not
antedate November, 1889, the date of
statehood. It is not argued that the
court in Ziemann, supra, could not rule on
"statutes" after that date, but it is

17

illegical to presume that the Washington
State Supreme Court would have
jurisdiction over acts which predated the
existence of its own sovereign--the
state. Thus, under the rationale of
State ex rel. Mullen vy. Doherty, 16 Wash.
382, 384, 47 P. 958 (1897), the right to
a trial by jury existed in the territory
at the time of the adoption of the
constitution (October, 1889) and should
still exist under the Uniform Parentage
Act, RCW 26.

B. Supremacy and Territorial

Clauses of U.S. Constitution.

In order to examine whether or not
there was jurisdiction for the state
supreme court to invalidate a territorial
act, the U.S. Constitution should be
examined. Two articles are important for
this examination; i.e., Article VI,

Clause 2~-the Supremacy Clause, and

18

Article IV, Section 3, Clause 2--the
Territorial Relations.

1. U. &S Constitution, Article IV,
Section 3, Clause 2, states as follows:

[2] The Congress shall have
Power to dispose of and make all
needful Rules and Regulations
respecting the Territory or other
Property belonging to the United
States; and nothing in this
Constitution shall be s0
construed as to Prejudice any
Claims of the United States, or
of any particular State,

The court's attention is invited to

U.S. vy. Wheeler, 435 U.S. 313, 55 L.Ed.
2d 303, 98 S.Ct. 1079 (1978), wherein the
supreme court briefly explained the
identifying features of a “territory” and
indicated that it is an agency of the
federal government:

Similarily, a territorial
government is entirely the
creation of Congress, “and its
judicial tribunals exert all

their powers by authority of the
United States."

Grafton yv.
United Atabes, supra, 206 U.S.,
at , 27 &.Ct., at 7557 see

Cincinnati Soap Co. v. United

19

States, 301 U.S. 308, 317, 57
S.Ct. 764, 768, 81 L.Ed. 1122;
United States v. Kagama, 118 U.S,
375, 380 6 S.Ct. 1109, ill, 30
L.Ed. 228; American Ins. Co. vy.
Canter, 1. Pet. 511, 542, 7 L.Ed.
242. When a territorial
government enacts and enforces
criminal laws to govern its
inhabitants, it is not acting as
an independent political
community like a State, but as
"an agency of the federal
government.” Domenech _v.
National City Bank, 294 U.S. 199,
204-205, 55 S.Ct. 366, 369, 79
L.Ed, 857. (at page 1085.)

In early cases, the U. S. Supreme
Court dealt with the entity of a
territory and set forth the law
concerning them:

The government of the
Territories of the United States
belongs, primarily, to Congress;
and, secondarily, to such
agencies as Congress may
establish for that purpose.
During the term of their pupilage
as Territories, they are mere
dependencies of the United
States. Their people do not
constitute a sovereign power.
All political authority exercised
therein is derived from the
General Government.

85 U.S. 317, 21 L.Ed. 784,
785 (1880).

20

2. U. S. Constitution, Article VI,
Section 2, states as follows:

{2]) This Constitution and
the Laws of the United States
which shall be made in Pursuance
thereof; and all Treaties made,
or which shall be made, and under
the Authority of the United
States, shall be the supreme Law
of the Land; and the Judges in
every State shall be bound
thereby, any Thing in the
Constitution or Laws of any State
to the contrary notwithstanding.

It is plain that al] laws of the
United States shall be the supreme law of
the land. 16 Am. Jur. 24 Constitutional
Law $74 (1979). To see how these
doctrines interplay, one need look no
further than Testa vy. Katt, 330 U.S. 386,
91 L.Ed. 967, 67 S.Ct. 810 (1947),
wherein a federal act had provided for
penalty of treble damages; a state court
held that a federal penal statute could
not be maintained in state court. The
supreme court made short shrift of that

position, stating as follows:

21

The suggestion that the act
of Congress is not in harmony
with the policy of the State, and
therefore that the courts of the
State are free to decline
jurisdiction, is quite
inadmissible, because it
presupposes what in legal
contemplation does not exist.
When Congress, in the exertion of
the power confided to it by the
Constitution, adopted that act,
it spoke for all the people and
all the states, and thereby
established a policy for all.
That policy is as much the policy
of Connecticut as if the act had
emanated from its own
legislature, and should be
respected accordingly in the
courts of the state. Mondou vy.

New York, NH. & HR. CO., SUDIa,

223 U.S. at page 57, 32 S.Ct. at

page 178, 56 L.Ed. 327, 38

L.R.A., N.S. 44.

(at p. 814).

Thus, the sovereign for the
Territory of Washington was the Congress
of the United States, and only Congress,
its legislative courts, or the United
States Supreme Court under Article II,
Section 1, Clause 1, could invalidate the

act of the territory. The Supreme Court

22

of the State of Washington could not and
cannot invalidate any act of Congress!
Cc. The Supreme Court has
Misconstrued its Jurisdiction.
l. Purpose Violated,
The Washington State Supreme
Court cited two cases--Byers vy.
Commonwealth, 42 Pa. 89, 94 (1862), and
People vy. One 194] Chevrolet Coup, 37
Cal. 2d 283, 287, 231 P.2d 832 (1951)--
for the proposition that in looking for
the gight (to see what is preserved for
jury trials) we are to examine the issue
historically. Historically, socially,

factually, and legally in the territory,
at the time of the adoption of the

constitution--there was the right to a
jury trial in bastardy proceedings. The
Washington State Supreme Court was not
asked to enlarge the right, merely
preserve it. It destroyed the right by
use of a legal fiction,

23

2. Enabling Act Rationale

Incorrect,
a. The Washington State

Supreme Court in Tieman, Supra, did not
have to delve back to the Organic Act and
rely on the Enabling Act for its
authority. The court in Tieman, supra,
referred to a similar provision in the
Washington State Constitution (p. 296).
In fact, that provision is Article 2,
Section 19:

§19. Bill to Contain One

Subject. No bill shall embrace

more than one subject, and that

shall be expressed in the title,

This was adopted in 1889 in the
Washington State Constitution. Thus, a
correct analysis would have been:

1) The Bastardy Statute was a

State statute by virtue of Sec. 24 of the
Enabling Act;

2) But it was unconstitutional by

24

virtue of Art. 2, Section 19 of the
Washington State Constitution;

3) Thus, it was null and void as
of the date of either adoption of the
constitution or the date of statehood,

b. The grant of Congress
through the Enabling Act was to give the
territory a chance to form a state by
adopting a constitution, which if it met
certain guidelines, would be granted
statehood. Note the guidelines in
Section 4 (e.9g., a republican form of
government, no distinction in civil
rights based on race or color, etc.).

The Washington State Supreme Court
in the instant case held that by naming
the state courts as successors, it
granted the right to construe territorial
acts--even to declaring them null and
void. That rationale fails on
examination:

1) Section 22 clearly

25

indicates that as to cases arising prior

to admission:
{T]he parties to such judgment
shall have the right to prosecute
appeals and writs of error to the
Supreme Court of the United
States as they shall have had by
law prior to the admission of
said State into the union,

2) Section 23 reserved the
right to pending civil cases to request
that litigants could choose their
forums--either U.S. district courts 9,
state courts,

Thus, Congress can confer concurrent
jurisdiction on state courts for
enforcement of penalties, but those
courts have only such powers as Congress
expressly grants. Bowles vy. Barde Steel
CQos., 177 Or. 421, 164 P.2d 692, 162
A.L.R. 328 (1945). Here, Congress did
not grant the right to declare yoid its
own act. The grant of jurisdiction was
limited, and presumed statehood, and

presumed that all laws would be in effect

26

in the states as had been in effect in
the territory, “except as modified or
changed by this act or by the
Constutitions of the States,
respectively." (Sec. 24, Enabling Act.)
Nothing granted the authority to declare
territorial acts void,
Cc. The constitution of the
State of Washington defined the limit of
the judicial power of the supreme court,
as set forth above, to decide the
validity of gtatutes (not territorial
acts); so, the constitution was self-
limiting and the authority of the Supreme
Court of Washington, which only came to
being on November 1l, 1889, could not
antedate the inception of the state
itself.
Thus, three premises are obvious:
l. The Supreme Court of the State
of Washington, by constitutional grant
and by statute, can only decide the

27

validity of state statutes. In this
context, Tieman, supra, could have only
declared null and void the Washington
State statute relating to bastardy
proceedings in effect after November li,
1889.

2. Congress, who was the sovereign
of the Territory of Washington, only set
forth the diagram for the state and did
not grant jurisdiction to declare its own
acts void,

3. Historically, the right to a
jury trial in bastardy proceedings was a
fact: socially, it was a determination by
the territorial legislature--an arm of
Congress; and legally, it existed and
could not be overturned by a state
supreme court.

The usurpati_a of the authority by
the Washington Supreme Court has lead to
an enlargement of its authority; and it

has denied the right to a jury trial to

28

its citizens when Congress had first
guaranteed that right.

Therefore, Petitioner respectfully
requests that this Court review the
decision of the Washington State Supreme
Court and decide the question presented
by this case.

Respectfully submitted,

Of Attorneys for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0508%3A1. Public record. Not legal advice.