Opposition — Alabama v. Gordon

Office - Supreme Court. US

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FON 27 1982

ALEXANDES L. Sfevaec

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tee

NO. 82-1920

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1982

STATE OF ALABAMA

Petitioner,

—-Vs—-

WILLIAM R. GORDON, JUDGE, CIRCUIT COURT

OF MONTGOMERY COUNTY

(WILLIAM SANFORD ELEY, I,

REAL PARTY IN INTEREST),

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

ALABAMA SUPREME COURT, THE ALABAMA COURT

OF CRIMINAL APPEALS AND THE CIRCUIT COURT OF

MONTGOMERY COUNTY, ALABAMA

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

MAURY SMITH EDWARD B. PARKER, II

COUNSEL OF RECORD FOR ATTORNEY FOR THE

THE RESPONDENTS RESPONDENTS

SMITH, BOWMAN, THAGARD, SMITH, BOWMAN,

CROOK & CULPEPPER, P.A. THAGARD, CROOK &

CULPEPPER, P.A.

Post Office Box 78

Montgomery, AL 36101

(205) 834-6500

Post Office Box 78

Montgomery, AL 36101

(205) 834-6500

QUESTION PRESENTED

Whether the State's Petition for Certiorari is due to be de-

nied.

TABLE OF CONTENTS

Page

QUESTION PRESENTED i

TABLE OF CONTENTS il

TABLE OF AUTHORITIES iil

I. STATEMENT OF THE CASE l

Il. STATEMENT OF THE FACTS 2

Il. SUMMARY OF THE ARGUMENT 2

IV. THE STATE’S PETITION FOR CERTIORARI

1S DUE TO BE DENIED

A. The Petitioner Is Seeking Review Of A

Decision Based Solely On State Lau

B. The Petitioner ls Not Seeking Review Of

A Final Judgment

C. The Petitioner is Not Seeking Review In A

Timely Manner

V. CONCLUSION

CERTIFICATE OF SERVICE

i

™

TABLE OF AUTHORITIES

Cases Page

Ashwander v. Tennessee Valley Authority, 297 U.S. 288,

346-47, 80 L.Ed. 688, 710-11, 56 S.Ce. 466, —_____..

(1936) 4

Duncan v. Tennessee, 405 U.S. 127, 127, 31 L.Ed.2d 86, 87,

52 3.0.2. 7 E35, (1972) 4

Ex parte Nice, 407 So.2d 874, 878, 882 (Ala. 1981) 3

Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-18, 94

L.Ed. 562, 565-66, 70 S.Ct. 252, --_- . (1950) 4, 3

New York Times v. Jascalevich, 439 U.S. 1317, 1318, 58

L.Ed.2d 25, 28, 99 S.Ct. 6, (1978) 4,5

Rice v. Sioux City Cemetery, 349 U.S. 70, 73-74, 99 L.Ed.

B97, 901, 73 Se. 614, —...... (1934) 4+

State v. Cannon, 369 So.2d 32, 33 (Ala. 1979) 3

State v. Eley, 423 So.2d 303 (Ala. Cr. App.), cert. denied, 423

So.2d 305 (Ala. 1982) 1

Statutes:

28 U.S.C. §1257(3) 4

28 U.S.C. §2101(d) 4s

Ala. Code (1975) §15-8-131 5

Other Authorities:

C. WRIGHT, FEDERAL COURTS, §107 at 537 (3rd ed.

1976) me . : : 4

Rule 17 (1) (c) of Rules of United States Supreme Court a7

Rule 20(1) of Rules of United States Supreme Court 9

I. STATEMENT OF THE CASE

On April 2, 1982, the Montgomery County Grand Jury

returned a “True Bill” indicting the Respondent, William San-

ford Eley, II, of assault in the first degree. He filed a “Plea of Not

Guilty and Waiver of Arraignment” on April 21, 1982. Eight

days later, Eley filed a “Plea of Autrefois Convict”, which was

denied by the Respondent, Judge William R. Gordon, after oral

argument, on June 15, 1982.

On June 24, 1982, Eley filed a “Plea of Former Jeopardy”,

which was later briefed and argued orally both by his counsel and

by counsel for the Petitioner, the State of Alabama. Judge Gordon

granted the same on September 1, 1982 thereby dismissing the

indictment, as framed. (Petitioner’s Appendix 1-33). The State

filed its Notice of Appeal on September 7, 1982, under Senate

Bill 60’s purported grant to the State of the right to appeal from

such a pretrial order dismissing an indictment on double jeopardy

grounds.

On October 20, 1982, after both Eley and the State had

submitted briefs and made oral argument, the Alabama Court of

Criminal Appeals granted Eley’s Motion to Dismiss the State’s

appeal inasmuch as Senate Bill 60 was found to have been “pocket

vetoed” by then Governor Fob James. The Alabama Supreme

Court subsequently denied certiorari on December 17, 1982. State

v. Eley, 423 So.2d 303 (Ala. Cr. App.), cert. denied, 423 So.2d

305 (Ala. 1982).

The State, on January 5, 1983, filed a Petition for a Writ of

Mandamus in the Alabama Court of Criminal Appeals thereby

seeking, by subterfuge, to obtain review, on the merits, of Judge

Gordon’s pretrial order dismissing its indictment on double

jeopardy grounds. Five days later, the Alabama Court of Criminal

Appeals denied the State’s Petition for a Writ of Mandamus.

(Petitioner’s Appendix 34). The State’s Application for Rehearing

and Request for the Finding of Additional Facts, both filed January

20, 1983, were also denied by that Court four days later. (Pe-

titioner’s Appendix 35). From this denial, the State filed a Pe-

tition for a Writ of Certiorari to the Alabama Supreme Court on

February 7, 1983, which was also denied on April 8, 1983. (Peti-

tioner’s Appendix 36-37). Finally, on or about May 25, 1983, the

State filed its instant Petition for a Writ of Certiorari in this Court.

Il. STATEMENT OF THE FACTS

The Respondents incorporate by reference the last paragraph

of their Statement of the Case set forth immediately above as if

the same were set forth fully herein.

III. SUMMARY OF THE ARGUMENT

The Petitioner admittedly now seeks review on certiorari

from the State courts’ denial of its Petition for Mandamus. This

decision was based solely on State law without any consideration

whatsoever given to the double jeopardy issue the Petitioner er-

roneously contends is now before this Court. Since no federal

question was ever involved, much less one of a substantial nature,

then certiorari review is not proper.

In any event, since the State has no right of appeal from

Judge Gordon’s decision and the double jeopardy issue could not

have been considered and was not considered through a mandamus

subterfuge by any other Alabama court, then Judge Gordon’s pre-

trial order dismissing the indictment on double jeopardy grounds

was the decision from the highest court in which a decision could

be had on this issue. Such decision, by its very nature, was inter-

locutory in character and did not constitute a final judgment

necessary for review by certiorari.

Finally, since Judge Gordon’s decision is from the highest

state court in which a decision could be had on the double jeopardy

2

issue, then the State’s time within which to seek review by

certiorari began to run from the date of said pretrial order and the

filing herein was thus not done in a timely manner.

IV. THE STATE’S PETITION FOR CERTIORARI IS

DUE TO BE DENIED

A. The Petitioner Is Seeking Review Of A Decision Based

Solely On State Law

The State admits at pages twelve and thirteen of its Petition,

as the following statement quoted from the bottom of page one of

its June 3, 1983 letter to the Clerk of this Court further indicates,

that “This action seeks review of the State courts’ disposition of a

mandamus proceeding in which Judge Gordon was the Respondent

Judge.” (emphasis added).

The State’s Petition for Mandamus was evaluated only under

established Alabama precedent regarding the granting of such

writs, and it was found to be lacking merit since Judge Gordon’s

pretrial order dismissing the indictment on double jeopardy grounds

was an affirmative action not outside the scope of his power, Ex

parte Nice, 407 So.2d 874, 878, 882 (Ala. 1981), and not an

abuse of his discretion. State v. Cannon, 369 So.2d 32, 33 (Ala.

1979). The double jeopardy issue was not even considered since

mandamus is not “‘a substitute for appeal” under Alabama law. Id.

Just as it did below in its attempt to use mandamus as a

subterfuge to remedy its lack of a right to appeal, the State, in its

zeal to pursue the prosecution of Eley, has once again committed

a most serious and costly procedural error. By admittedly now

seeking review of only the mandamus denial, the State is petitioning

this Court to review a decision based solely on State law, which

did not even involve a federal question, much less one of a sub-

stantial nature as required by Rule 17(1) (c) of this Court’s Rules.

Such review is also not permitted under the jurisdictional basis,

3

28 U.S.C. §1257(3), cited by the State at page three of its Peti-

tion. See New York Times v. Jascalevich, 439 U.S. 1317, 1318, 58

L.Ed.2d 25, 28, 99 S.Ct. 6, _____ (1978) ; Duncan v. Tennes-

see, 405 U.S. 127, 127, 31 L.Ed.2d 86, 87, 92 §.Ce. 785, —___—

(1972); Rice v. Sioux City Cemetery, 349 U.S. 70, 73-74, 99

L.Ed. 897, 901, 75 S.Ct. 614, — — —— (1954); Maryland v. Balti-

more Radio Show, 338 U.S. 912, 917-18, 94 L.Ed. 562, 565-66,

70 She. 292, (1950); Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 346-47, 80 L.Ed. 688, 710-11, 56 S.Ct.

466, — (1936).

B. The Petitioner Is Not Seeking Review Of A Final Judg-

ment

The jurisdictional basis, 28 U.S.C. §1257(3,) cited by the

State at page three of its Petition not only mandates that the de-

cision sought to be reviewed by certiorari herein must have been

rendered by the highest court in which a decision could be had but

it also requires that such decision be a final judgment or decree.

Inasmuch as both the Alabama Court of Criminal Appeals

and the Alabama Supreme Court concluded that then Governor

Fob James had “pocket vetoed” Senate Bill 60 thereby leaving the

State without a right of appeal from Judge Gordon’s decision,

Supra at 1, and inasmuch as both the Alabama Court of Criminal

Appeals and the Alabama Supreme Court could not and did not

consider the double jeopardy issue during their respective analyses

of the State’s mandamus subterfuge, supra at 3-4, then the highest

court from which a judgment on the double jeopardy issue could

be had was that of the frial court, i.e. Judge Gordon. See C.

WRIGHT, FEDERAL COURTS, § 107 at 537 (3rd ed. 1976).

However, Judge Gordon’s decision (Petitioner’s Appendix

1-33) was a pretrial order dismissing the indictment, as framed,

on double jeopardy grounds. It was without prejudice to the

State’s right to reindict Eley under a new and properly framed

4

indictment and to thereby continue its prosecution of him on the

assault charge. This pretrial order was therefore merely infer-

locutory in character, See Ala. Code (1975) §15-8-131, and by

no means constituted a final judgment or decree necessary for re-

view by certiorari. See New York Times v. Jascalevich, 439 US.

R517, 13518, 38 L.Ea.24 23, 28, 99 S.Cx. 6, ____... (19778) Mary-

land v. Baltimore Radio Show, 338 U.S. 912, 917-18, 94 L.Ed.

Wea, 263-06, 70S Ge. 252, ......... (1990).

C. The Petitioner Is Not Seeking Review In A Timely

Manner

Inasmuch as Judge Gordon’s pretrial order dismissing the in-

dictment was rendered by the highest court in which a decision

could be had on the double jeopardy issue thus making it the State

court of last resort on this question in this criminal proceeding,

supra at 4-5, and inasmuch as said pretrial order was issued Sep-

tember 1, 1982 and inasmuch as the State filed its instant Petition

for a Writ of Certiorari on or about May 25, 1983, then the State

failed to file its Petition in a timely manner. See 28 U.S.C.

§2101(d) and Rule 20(1) of this Court’s Rules. In order to have

filed in a timely manner, the State would have had to have done

so within sixty days after September 1, 1982. Instead, the State

filed its Instant Petition nearly nine months later. Review by

certiorari has therefore been sought too late. Maryland v. Baltimore

Radio Show, 338 U.S. 912, 917-18, 94 L.Ed. 562, 565-66, 70

Acs. 255, (1098).

Vv. CONCLUSION

For the reasons stated hereinabove, the State’s Petition for

Certiorari is due to be denied.

Respectfully submitted,

Maury Smfh

Counsel of Record for the

Respondents

Lp Ab Melon

Edward B. Parker, II

Attorney for the Respondents

OF COUNSEL:

SMITH, BOWMAN, THAGARD,

CROOK & CULPEPPER, P.A.

Post Office Box 78

Montgomery, AL 36101

(205) 834-6500

CERTIFICATE OF SERVICE

I, Maury Smith, as a member of the Bar of the United States

Supreme Court and as the Counsel of Record for the Respondents

herein, do hereby certify that on this the 24th day of June, 1983,

I served three (3) printed copies of the foregoing on the Peti-

tioner’s Counsel of Record, Charles A. Graddick, Esq., and

Joseph G. L. Marston, III, Esq., by mailing same to them, first

class postage prepaid and addressed as follows:

Charles A. Graddick, Esq.

Joseph G. L. Marston, III, Esq.

Office of the Attorney General

250 Administrative Building

64 North Union Street

Montgomery, AL 36130

Maury Syfith a

Counsel of Record for the

Respondents