Petition — Schwegmann v. Schwegmann

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883-1630 BP a out US)

No. APR 4 1984

| DE

IN THE am

SUPREME COURT

OF THE UNITED STATES

October Term, 1983

MARY ANN SCHWEGMANN, a/k/a

MARY ANN BLACKLEDGE,

Petitioner,

vs.

JOHN G. SCHWEGMANN, JR., et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

LAW OFFICES OF

MARVIN M. MITCHELSON

1801 Century Park Eas‘

Suite 1900

Los Angeles, California 90067

(213) 277-5545

and

BETTYANNE LAMBERT-BUSSOFF

806 Perdido Street

Suite 402

New Orleans, Louisiana 70112

(504) 525-0966

BY: MARVIN M. MITCHELSON

Attorneys for Appellant

MARY ANN SCHWEGMANN a/k/a

Vol. I of II MARY ANN BLACKLEDGE

“Ss?

QUESTIONS PRESENTED

1. Whether there are valid

independent state grounds for the dis-

missal of Mary Ann Blackledge, a/k/a

Mary Ann Schwegmann's cause of action

for breach of an oral contract?

2. Whether or not Article

1481 of the Louisiana Civil Code violates

the Equal Protection Clause of the

Fourteenth Amendment to the federal

Constitution?

LIST OF PARTIES

MARY ANN SCHWEGMANN, a/k/a

MARY ANN BLACKLEDGE

VS.

JOHN G. SCHWEGMANN, IR.,

JOHN F. SCHWEGMANN, MELBA

MARGARET SCHWEGMANN, AND

SCHWEGMANN BROS. GIANT

SUPERMARKETS, INC.,

SCHWEGMANN BROS. TERMINAL,

INC., j5CHWEGMANN BROS.,

INC., SCHWEGMANN BROS. WEST-

BANK, INC., SCHWEGMANN BROS.

WESTSIDE CORPORATION AND

SCHWEGMANN VETERANS

CORPORATION

111

TOPICAL INDEX

QUESTIONS PRESENTED

LIST OF PARTIES TO THE

PETITION FOR CERTIORARI

TOPICAL INDEX

TABLE OF AUTHORITIES

CITATION TO OPINION BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

SPECIAL AND IMPORTANT

REASONS FOR A REVIEW OF

THIS PETITION FOR CER-

TIORARI (ARGUMENT IN

ACCORDANCE WITH RULE 17)

A. THERE ARE NO VALID

INDEPENDENT STATE

GROUNDS FOR THE

DISMISSAL OF MARY

ANN'S CAUSE OF

ACTION FOR BREACH

OF ORAL CONTRACT

B. THE LOWER COURTS' DIS-

MISSAL OF MARY ANN'S

CONTRACTUAL CLAIMS,

(BOTH ORAL AND IMPLIED)

WHILE UPHOLDING HER

QUANTUM MERUIT CLAIM,

REGARDING THE BUSI-

NESS SERVICES SHE PRO-

VIDED THE SCHWEGMANN

STORES AND JOHN PER-

SONALLY, VIOLATES THE

EQUAL PROTECTION CLAUSE

OF THE FOURTEENTH AMEND-

MENT TO THE FEDERAL

CONSTITUTION. 25

* CONCLUSION 41

XI APPENDICES

INDEX TO APPENDICES

APPENDIX "A" JUDGMENT AND ORDER OF THE

TWENTY-FOURTH JUDICIAL

DISTRICT COURT, PARISH OF

JEFFERSON, STATE OF

LOUISIANA.

APPENDIX "B" COURT OF APPEAL, FIFTH

CIRCUIT, STATE OF

LOUISIANA

APPENDIX C“ PETITION FOR WRIT OF

CERTIORARI AND REVIEW IN

THE SUPREME COURT OF THE

STATE OF LOUISIANA.

APPENDIX D“

APPENDIX E“

PETITION FOR (1)

SPECIFIC PERFORMANCE

AND/OR DAMAGES BASED ON

BREACH OF CONTRACT,

(2) FOR THE RECOGNITION

OF CONSTRUCTIVE TRUST OR

DAMAGES BASED ON IMPLIED

CONTRACT, (3) DECLARA-

TORY RELIEF, (4) QUASI

CONTRACT AND/OR QUANTUM

MERUIT, (5) INTERFERENCE

OF CONTRACT RIGHTS, AND

(6) DECLARATION OF

SIMULATION AND/OR REVO-

CATORY ACTION

DENIAL OF WRIT OF CER-

TIORARI AND REVIEW IN

THE SUPREME COURT OF THE

STATE OF LOUISIANA

TABLE OF AUTHORITIES

Cases Page

Barbier v. Connoll

I13 U.S. 27 ids) 29

Commonwealth v. Baird

ss. : 7

N.E.2d, 579 32

Commonwealth v. Corbell

M'; E.

2d 151 (1940) 32

Deyoe v. Superior Court (103)

120 Cal. 476, 482

74 P. 28 35

Eisenstadt v. Baird 30, 31, 34

~~ 605 U.S. 438 (1971) 35, 40

Ferguson v. Scheunemann (1959)

167 Cal.App.2nd, 413 38

Foshee v. Semken

a. App., 4 So.2d

915 27

Griswold v. Connecticut

.5. 31

Guerin v. Bonaventure

°.

(lst Cir. 1968) 26

Heatwold v. Stansbury

33 So.2d 232 27 4

In re Marriage of Cary (1973)

-App. 35

Cases Page

Lindsley v. Natural

Carbonic Gas co.

720 U.S. 61 (1911) 29

Marvin v. Marvin (1976)

Tal Iq 66

al. 0 22, 35, 37

McDaniel v. Board of

Election Commissioners

Railway Express Agency

ew Yor

3°6 U.S. 106 (1949) 29

Reed v. Reed

8. 71 (1971) 29

Royster Guana Co. v.

peginie, 253 U.S.

12, 5 (1920)

= 30

Sparrow v. Sparrow

231 La. :

93 So.2d 232 27

Constitution

United States Constitution,

ourteent nt 10

Statutes

Louisiana Civil Code

Article 1481 11, 21, 28, 39, 40

2801 12

2829 11

Statutes Page

Louisiana Civil Code (Con't)

Article 2830 12

2831 12

2834 12

Articles

Equal Protection of the Laws

Selected Essays 1938-62 (1963)

37 Cal.L.Rev. 341 (1949) 39

The 557 1 Retreat

cholas 8. Timasheff

1946 EP Dutton & Co., Inc. 21

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1983

MARY ANN SCHWEGMANN a/k/a

MARY ANN BLACKLEDGE

Appellants,

vs.

SUPREME COURT OF THE

STATE OF LOUISIANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

CITATION TO OPINION BELOW

The opinion of the Honorable

Judge Frank J. Zaccaria filed September

28, 1982 from the Twenty-Fourth Judicial

District Court, Perish of Jefferson,

State of Louis tens, was not reported.

Nor was the opinion of the Fifth Circuit

Court of Appeal, State of Louisiana filed

November 9, 1983. The Supreme Court

of the State of Lovisiana denied the

Petition for Writ of Certiorari and Review

on January 6, 1984, without opinion.

JURISDICTIONAL STATEMENT

The Petition for a Writ of

Certiorari and Review of Mary Ann Blackledge,

a/k/a Mary Ann Schwegmann, to the Supreme

Court of the State of Louisiana was denied

on January 6, 1984.

No rehearing nor extension

of time in which to petition for certiorari

was requested.

The statutory provision believed

to confer on this Court jurisdiction

to review the judgment in question by

writ of certiorari is 28 USC §1257(3).

VII

CONSTITUTIONAL PROVISIONS

The constitutional provisions

and statutes involved in this case are

as follows:

(a) The Equal Protection

Clause of Section I of t ourteent

moment to t eral Constitution:

“Section 1. All persons born or

naturalized in the United States

and subject to the jurisdiction

thereof, are citizens of the United

States and of the State wherein

they reside. No State shall make

or enforce any law which shall abridge

the privileges or immunities of

citizens of the United States; nor

shell any State deprive any perron

of life, yy! or ty, without

dur process of law;

an Teen within its

7 equal prot

[Emphasis added]

(b) Article 1481 of the Louisiana

Civil Code:

Lans

“Art. 1481. Those who have lived

together in open concubinage are

respectively incapable of making

to each other, whether inter vivos

or mortis causa, any donation o

immovables; and if they make a dona-

tion of movables, it cannot exceed

one-tenth part of the whole value

of their estate.

Those who afterwards marry are except-

ed from this rule.”

Civil Code (repealed by Acts 1980

No.

150):

“Universal partnership is a contract

by which the 298 agree to make

@ common stock of all the paroperty ;

they respectively gem they

may extend it to all property real

or personal, or restrict it to person-

al only; they may, as in other partner-

ships, agree that the property itself

shall be common stock or that the

fruits only shall be such; but proper-

ty which may accrue to one of t

parties, after entering into the

partnership, by donation, succession

or legacy, does not become common

stock, and any stipulation to that

effect, previous to the obtaining

the property aforesaid, is void.

11.

(d) Article 2830 of the Louisi-

ana Civil Code (repeale y Acts

O. :

“A universal partnership of profits

includes all the gains that may

be made from whatever source, whether

from property or industry, with

the restriction contained in the

last article, and subject to all

legal stipulations to be made by

the parties."

(e) Article 2831 of the Louisi-

ana Civil Code (repealed by Acts 1980

No. 150):

“If nothing more is agreed between

the parties, than there shall be

a universal partnership, it shall

extend only to the profits of the

property each shall possess, and

of their credit and industry."

(f) Article 2834 of the Louisi-

ana Civil Code (repeated by Acts 1980

No. 150): :

A universal partnership cannot

be created ‘without writing signed

by the parties, and registered in

the manner hereafter prescribed.’

(g) Article 2801 of the Louisi- ;

ana Civil Code (effective January l,

1980):

ER a

"A partnership is a jurisdical person

distinct from its partners, created

by a contract between two or more

persons to combine their efforts

or resources in determined ee

and to colloborate at mutual risk

for their common profit on commercial

benefit. * * * *

Section 3. The provisions of this

act shall apply to all partnerships,

including those existing on the

effective date of this act [January

1.1

VIII

STATEMENT OF THE CASE

The salient facts of the case

are as follows:

Plaintiff, Mary Ann Blackledge,

a/k/a Mary Ann Schwegmann (hereinafter

referred to as "Mary Ann"), began working

at the Schwegmann Stores in 1958 when

she was seventeen (17) years of age. Mary

Ann thereafter became employed by the

Shell Oil Company, where she worked until

1965. Notwithstanding her position at

Shell, Mary Ann continued her duties

13.

as a consultant to Defendant John 6.

Schwegmann, Jr., (hereinafter referred

to as John“), focusing primarily on

mansgements and public relations.

As a result of Mary Ann's consult-

ing activities, she and John commenced

a joint venture relationship which engaged

in the ownership and operation of several

businesses, and which spanned a twenty-one

(21) year time period. Mary Ann and

John were primarily engaged in real estate

development and acquisitions. Some of

those ventures were commonly referred

to as the Georgia/Pacific and ancillary

land venture in St. Charles Parish, Powers

Drive, Tall Timbers, Crowder Road, and

Bullard Road. Mary Ann contributed all

of her profits back into the joint venture

projects during this entire period of

time.

On May 15, 1966, Mary Ann and

14.

John entered into an oral contract whereby

they agreed, inter alia, that in exchange

for Mary Ann's continuing to work as

a consultant to the Schwegmann stores

and in consideration of the joint venture

nature of their real estate investments,

they would share equally in any profits

and proceeds realized as a result of

those stores and investments. Pursuant

to the contract, Mary Ann advised John

and the board members of the corporations

and companies comprising the Schwegmann

stores (Schwegmann Brothers Giant Supermar-

kets, Inc., Schwegmann Bros. Terminal,

Inc., Schwegmann Bros., Inc., Schwegmann

Bros. Westbank, Inc., Schwegmann Bros.

Westside Corporation, and Schwegmann

Veterans Corporation) regarding (1)

salaries of employees; (2) policy decisions;

(3) design, planning and building of 3

the Schwegmann stores built after 1968;

15.

(4) the day to day operations of the

stores. Mary Ann spoke to managers of

the Schwegmann stores, tested products

and compared prices for the stores, as

well as wrote editorials contained within

the advertisements run by the stores

on a weekly basis.

On the personal level, Mary

Ann and John resided together and Mary

Ann took care of all of the household

tasks at their residence, Green Acres

Road House. Mary Ann cared for John's

daughter for thirteen (13) years, as

if she were her own, and later cared

for John during his protracted illness

until the termination of their relationship,

at John's insistence, in 1978.

The constitutional argument

was raised in the trial, appellate, and

Supreme courts of the State of Louisiana.

Mary Ann filed a Petition for:

16.

Specific Performance and/or Damages based

on Breach-of Contract, for the Recognition

of Construction Trust or Damages Based

on Implied Contract, for Declaratory

Relief, for Quasi Contract and/or Quantum

Meruit, for Interference with Contract

Rights, and for Declaration of Simulation

and/or Revocatory Action, in the 24th

Judicial District Court, Parish of Jeffer-

son, State of Louisiana, on October 5,

1979. The first and second causes of

action sought recovery based on an oral

contract and/or an implied in fact contract

(based on the parties conduct) whereby

Mary Ann agreed to act as a business

consultant for the Schwegmann stores

and to participate with John Schwegmann

in numerous real estate joint ventures,

in addition to being John Schwegmann's

companion, in exchange for a one-half

ownership interest in John's interest

17.

in the Schwegmann stores and a one-half

interest in all of the parties’ joint

venture interests.

The petition was partially

dismissed on a motion for summary judgment

brought by the defendants, John J. Schweg-

mann, Jr., et al. The only cause of

action not dismissed was that for Quasi-

Contract and/or Quantum Meruit as that

cause of action concerned Mary Ann's

business as opposed to her personal endea-

vors on John's behalf. The judgment

was signed on the 13th of September,

1982, and was timely appealed to the

Fifth Circuit Court of Appeals. A Judgment

was rendered by the Fifth Circuit Court

of appeals on November 9, 1983, upholding

the judgment of the lower court. No

motion for a rehearing was filed. Mary :

Ann filed a Petition for a Writ of Certior-

ari with the Supreme Court of the State

18.

of Louisiana. The Writ was denied on

January 6 1984.

The two documents demonstrating

that the constitutional issues were timely

raised in the courts of the State of

Louisiana are the decision, filed November

9, 1983, of the Court of Appeal, Fifth

Circuit, State of Louisiana (a copy of

which is attached hereto as Appendix

B“), and the Petition for Writ of Certior-

ari to the Supreme Court (a copy of which

is attached hereto as Appendix c“).

The Court of Appeal's decision disposed

of the constitutional issues raised on

page 9 and 10, as follows:

A substantial portion of the plain-

tiff counsel's brief is devoted

to a historical analysis of the

Louisiana law on concubinage to

show that its development was 2

ed on public policy construed by

the judiciary. She then argues

that changes in the mores of society

as regards cohabitation have changed

to radically, we should not impose

on a man and woman who cohabitate

without marriage a standard based

19.

on moral considerations merely to

rotect Victorian values which have

een abandoned by so many in our

society. Therefore, she urges it

is time for the courts of Louisiana

to develop a legal vehicle to protect

the — 17 rights obtained during

cohabitation by a male and female

in a sexual relationship without

benefit of marriage. In support

of the contentions, she urges a

constitutionally protected right

against discrimination between wives

and concubines. She compares the

discrimination she sees to that

formerly existing between legitimate

and illegitimate children and says

concubinage discriminates against

black heritage and culture but more

particularly against women.

We neither agree with her apprecia-

tion of the sociological changes

nor the necessity for a change in

legal philosophy as to concubinage

nor do we see the violation of a

constitutionally protected right

against discrimination. The State

has valid reason to one relation-

ships which serve to erode the corner-

stone of society, i.e., the family.

In every known civilized society,

replacement of its members is perform-~

ed within the context of the family.

Although it is conceivably possible

that sexual relations and child

rearing could be deregulated or

governed by norms that do not entail

the encouragement, support snd protec-

tion of family institutions, past

experiments in that direction have

failed. (See “The Attempt to Abolish

20.

the Family in Russia" in The Great

Retreat by Nicholas S. Timasheff,

Co., Inc. Further, in the case

of the children, legitimate or illegi-

timate, they were not the cause

of their status, but here the status

of concubine was a voluntary and

desired one, for the partis neither

married, wanted to marry, nor believed

they were married.

Under present Louisiana law,

unmarried cohabitation does not

give rise to property oe analogous

to or similar to those of married

couples. Concubines have no implied

contract or equitable liens that

af ford them any rights in the property

or their paramours. Moreover, in

our view, although Victorian, the

values sought to be 1 by

the formulation of those legal concepts

are imperative if we are to maintain

our civilized society.

As framed in Mary Ann's Petition for

Certiorari, the constitutional issues

are:

“ISSUE XI. Does Louisiana Civil

Code Article 1481 violate the United

States Constitution .?"

“ISSUE XII. Does the public policy

argument used by the Court in concubin-

age cases violate the United States

Constitution . . .?"

21.

SPECIAL AND IMPORTANT REASONS FOR A

REVIEW OF THIS CASE ON A WRIT OF CERTIORARI

(Argument in Accordance with Rule 17)

In this case, a state court

of last resort has decided a federal

question in a way in conflict with the

decision of another state court of last

resort, i.e., the California Supreme

Court in the case of Marvin v. Marvin

(1976) 18 Cal.3d 660, in addition to

which, a state court has decided an import-

ant question of federal law which has

not been, but should be, settled by this

Court, and, moreover, has decided a federal

question in a way in conflict with applic-

able decision of this Court.

At first blush, it might appear

that there exists valid independent state

grounds for the dismissal of Mary Ann's

oral contract cause of action, but, as

will be demonstrated below, such is not

22.

the case. Furthermore, there are no

possible independent state grounds for

the dismissal of Mary Ann's implied in

fact contract claim, and it will be demon-

strated that the dismissal of both of

these causes as they pertain to Mary

Ann's business ventures with John Schwegmann,

violate the Equal Protection Clause of

the Fourteenth Amendment to the federal

Constitution.

A. THERE ARE NO VALID INDEPENDENT

STATE GROUNDS FOR THE DISMISSAL

OF MARY ANN'S CAUSE OF ACTION

FOR BREACH OF ORAL CONTRACT

Both the trial court and the

Court of Appeals found that Mary Ann‘s

oral contract with John was void as it

constituted a “universal partnership"

which must, to be valid, be in writing.

As is made abundantly clear in Mary Ann's

Petition for a Writ of Certiorari, filed

with the Supreme Court for the State

23.

of Louisiana (attached hereto as Appendix

“C"), the universal partnership provisions

of the Louisiana Civil Code, Articles

2829 to 2834, were repealed by Act 150

of 1980. The new partnership law in

the State of Louisiana, Articles 2801

through 2890 of the Louisiana Civil Code,

effective January 1, 1981, eliminated

all classifications of partnerships.

Under this new law, the only type of

partnership in existence is an ordinary

partnership which need not be in writing

to be valid. Article 2801 of the Louisiana

Civil Code. Furthermore, Section 3 of

the new le provides that the provisions

of the Act are to be applied to all partner-

ships in existence on the effective date

of the Act, i.e., January 1, 1981.

Mary Ann's and John's partnership,

as alleged and as accepted as fact for

purposes of the motion for summary judgment,

24.

was created in 1966 and continues to

exist to the present time. The fact

that John has breached certain provisions

of the partnership agreement between

the parties does not effect its existence

as a legal entity, but only necessitates

the judicial imposition of one or more

remedies. Therefore, the agreement need

not have been in writing to be val!d,

and the lower courts' purported independent

state grounds for invalidating the express

partnership must fail.

B. THE LOWER COURTS' DISMISSAL

OF MARY ANN'S CONTRACTUAL CLAIMS,

(BOTH ORAL AND IMPLIED)

WHILE UPHOLDING HER QUANTUM MERUIT

CLAIM, REGARDING THE BUSINESS

SERVICES SHE PROVIDED THE SCHWEGMANN

STORES AND JOHN PERSONALLY,

VIOLATES THE EQUAL PROTECTION CLAUSE

OF THE FOURTEENTH AMENDMENT TO

THE FEDERAL CONSTITUTION

The lower courts' properly

determined that, given the opportunity

to do so, Mary Ann could establish real

25.

and substantial business services performed

for the defendants, including John, that

have not been previously compensated

and which were separate and distinct

from the concubinage relationship. (Deci-

sion of the Court of Appeals, attached

hereto as Appendix B“, page 13.) In

the words of the Court of Appeals:

“Plaintiff testified she per form-

ed business services for Mr. Schwe-

gmann and his corporations by (1)

helping him write editorials for

Schwegmann's newspaper advertisements;

(2) rendering investment advice;

(3) assisting and rendering advice

as to Mr. Schwegmann's political

career; and 94) keeping him informed

of things she saw in the stores

which could have an adverse effect

on the business. Under our law,

the plaintiff may be entitled to

compensation for the rendition of

the services if the services were

in fact rendered and do meet the

Le tpg pet of the equitable princi-

les formulated by the jurisprudence

or recovery. In the Bonaventure

case, supra, the Third Circuit clearly

stated the equitable principles

upon which recovery can be had:

‘Our jurisprudence appears

settled to the effect that

26.

predicated upon equitable princi-

ples, the claims of a paramour

and concubine will be recognized

and enforced with respect to

joint or mutual commercial

ventures, provided such enterpris- |

es arose independently of the

illicit relationship. Heatwold

v. Stansbury, 212 La. 685,

33 50.20 188 Sparrow v. Sparrow, |

231 La. 966, 9 0.

Foshee v. Simkin, La. App.

174 So.2d 915.

The rationale of the rule pronounc-

ed in the Heatwole, Sparrow

and Foshee cases, supra (and

the numerous authorities therein

cited) is that where the concubin- ;

age is merely incidental to

the business arrangement, the :

equitable rights of both parties |

will be recognized and enforced |

ape they be established ,

y strict and conclusive proof.

Stated otherwise, the rule

is that if the commercial enter- |

ptise is independent of the

illegal cohabitation, each

party may assert his tights

in the common endeavor.

Since the issue arose on a :

motion for summary judgment the :

trial judge concluded and we agree )

the plaintiff must be given every i

benefit of the doubt. Conceivably |

given the opportunity to do so,

she could establish real and substan-

tial business services ee

for the defendants, including Mr.

27.

Schwegmann, that have not been prev-

iously compensated and which were

separate and distinct from the concu-

binage relationship. Accordingly,

we agree with the trial judge's

ruling excepting her claim of compen-

sation for business services from

the summary dismissal of her claims."

The lower courts determination

that Mary Ann is limited to the equitable

remedy of quantum meruit, as opposed

to her legal remedies for breach of contract,

appears to be predicated, albeit tacitly,

or. Louisiana Civil Code Article 1481,

which provides as follows:

“Art. 1481. Those who have lived

together in open concuginage are

respectively incapable of making

to each other, whether inter vivos

of mortis causa, any donation of

immovables; and if they make a donation

of movables, it can not exceed one-

tenth part of the whole value of

their estate.

Those who afterwards marry are except-

ed from this rule."

Denying Mary Ann her legal

remedies simply because she was also

engaged in a so-called "concubinage"

28.

relationship with her business partner

is a clear and patent denial of equal

protection pursuant to the federal Constitu-

tion and thus, Article 1481 is overinclusive.

The basic principles governing

application of the Equal Protection Clause

of the Fourteenth Amendment are extremely

familiar to this Honorable Court. As

explained by the Chief Justice in Reed

v. Reed, 404 U.S. 71, 75-76 (1971):

"In applying that clause, this Court

has consistently recognized that

the Fourteenth Amendment does not

deny States the power to treat differ-

ent classes of persons in different

ways. Barbier v. Connoll 113

U.S. 27 (I885); tr v. Natural

220 U.S. 61 (ISIT);

Carbonic Gas Co.

Railway Express Agency v. New York,

336 U 8 155 19285 geben v.

Board of Election Conmissioners,

e Equa

Protection Clause of that amendment

does, however, deny to the States

the power to legislate that different

treatment to be accorded to persons

placed by a statute into different

classes on the basis of criteria

wholly unrelated to the objective

of that statute. A classification

must be reasonable, not arbitrary,

29.

and must rest upon some ground of

difference having a fair and substan-

tial relation to the object of the

legislation, so that al sons

similarly circumstanced shall be

treated alike.'" Royster Guana

— — 253 U.S. 41Z- 415

Thus, the question for this

Court's determination in this case is

whether there is some ground of difference

that rationally explains the different

treatment accorded business partners

who have never engaged in sexual relations

and business partners whose enterprises

arose independently of their sexual relation-

ship.

In Eisenstadt, this Court held

that a Massachusetts statute prohibiting,

inter alia, the dispensing of contraceptiv-

es to unmarried persons provided dissimilar

treatment for married and unmarried persons

who are similarly situated and thus violat-

ed the Equal Protection Clause of the

30.

Fourteenth Amendment. Eisenstadt, supra,

405 U.S. at 446-455. This Court based

its holding on its conclusion that the

deterrence of premarital sex could not

have reasonaby been regarded as the purpose

of the Massachusetts law. Id. at 448.

In so concluding, this Court reasoned

as follows:

"It would be plainly unreasonable

to assume that Massachusetts has

prescribed pregnancy and the birth

of an unwanted child as punishment

for fornication, which is a misdemeanor

under Massachusetts General Laws

Ann., c. 272 §18. Aside from the

scheme of values that assumption

would attribute to the State, it

is abundantly clear that the effect

of the ban on distribution of contracep-

tives to unmarried persons has at

best a marginal relation to the

proffered objective. What Mr. Justice

Goldberg said in Griswold v. Connecti-

cut, supra, at 498 (concurring opinion),

concerning the effect of Connecticut's

prohibition on the use of contraceptiv-

es in discouraging extramarital

sexual relations, is equally applicable

here. ‘The rationality of this

justification is dubious, particularly

in light of the admitted widespread

availability to all persons in the

State of Connecticut, unmarried

31.

as well as married, of birth-control

devices for the prevention of disease,

as distinguished from the prevention

of concept ion. See also id., at

— * 507 (WHITE, J., concurT ing in

rns: Like Connecticut's laws,

nd 21A do not at all regulate

3 distribution of contraceptives

when they are to be used to prevent,

not pregnancy, but the spread of

disease. Commonwealth v. Corbell,

307 Mass. 7, 29 F. F. 2d I51 (1940),

cited with apprval in Commonwealth

v. Baird, 355 Mass., at

N. „at 579. Nor, in making

contraceptives available to married

prsons without regard to their

intended use, does Massachusetts

attempt to deter married persons

from engaging in illicit sexual

relations with unmarried persons.

Even on the assumption that the

fear of pregnancy operates as a

deterrent to fornication, the Massachu-

setts statute is thus so riddled

with exceptions that deterrence

of premarital sex cannot reason-

ably be regarded as its aim.

Moreover, §§21 and 21A on their

face have a dubious relation to

the State's criminal prohibition

on fornication. As the Court of

Appeals explained, ‘Fornication

is a misdemeanor [in Massachusetts],

entailing a thirty dollar fine,

or three months in jail. Massachusetts

General Laws Ann. c. 272 § 18.

Violation of the present statute

is a felony punishable by five years

in prison. We find it hard to believe

32.

that the legis)ature adopted a statute

carrying a five-year 1 for

its possible, obviously by no means

fully effective, deterrence of the

commission of a ninety-day misdemeanor.’

429 F. 2d, at 1401. Even conceding

the legislature a full measure of

discretion in fashioning means to

prevent fornication, and recognizing

that the State may seek to deter

prohibited conduct by punishing

more severely those who facilitate

than those who actually 1 in

its commission, we, like the Court

of 8 cannot believe that

in this instance Massachusetts has

chosen to expose the aider and abetter

who simply 32 away a contra-

ceptive to 20 times the 90-day sentence

of the offender himself. The very

terms of the States criminal statutes,

coupled with the de minimis effect

of §§ 21 and 214 In deterring fornica-

tion, thus compel the conclusion

that such deterence cannot reasonably

be taken as the purpose of the ban

on distribution of contraceptives

to unmarried persons.”

In terms of the standard of

teview to be applied in this case, it

bears noting that this case presents

a hybrid situation in that the area of

regulation is economic, but the classifica-

tion involves privacy concerns. It is

33.

respectfully submitted that the “interme-

diate" level of scrutiny utilized in

Eisenstadt, supra, is the standard most

befitting of the instant set of facts.

As interpreted by the Louisiana courts,

Article 1481 is justified by the State's

“valid reason to discourage relationships

which serve to erode the cornerstone

of society, i.e., the family.

Moreover, in our view, although Victorian,

the values sought to be protected by

the formulation of those legal concepts

are imperative if we are to maintain

our civilized society." (Appendix "B",

p. 9).

In the language employed by

this Court in Eisenstadt,

"[a]side from the scheme of values

that assumption would attribute

to the State, it is abundantly clear

that the effect of the [application

of Article 1481 to business partners

whose ventures are independent of

their sexual relationship] has at

34.

best a marginal relation to the

proferred objective."

Eisenstadt, supra, 405 U.S. at 446.

First, the identical argument was persuasiv-

ely rejected by the California Supreme

Court in the landmark case of Marvin

X. Marvin (1976) 18 Cal.3d 660, wherein

the Court held that the terms of the

contract as alleged by a nonmarital cohabi-

tator did not rest upon any unlawful

consideration and thus it furnished a

suitable basis upon which the trial court

could render declaratory relief:

“The argument that granting remedies

to the non-marital partners would

discourage marriage must fail; as

[In re Marriage of] Cary [(1973),

34 Cal.App. pointed out,

‘with equal or greater force the

point might be made that the pre-1970

tule was calculated to cause the

income-producing partner to avoid

marriage and thus retain the benefit

of all of his or her accumulated

earnings. (34 Cal. App. zd at p.

353.) Although we recognize the

well-established public policy to

foster and promote the institution

of et (see Deyoe v. Superior

Court (1903) 140 Cal. 476,

[74 P. 28]), perpetuation of judicial

35.

rules which result in an inequitable

distribution of property accumulated

during a nonmariteal relationship

isneither a just or an effective

way of carrying out that policy.

In summary, we believe that

the prevalence of nonmarital relation-

ships in modern society and the

social acceptance of them, marks

this as a time when our courts should

by no means apply the doctrine of

the unlawfulness of the so-called

meretricious relationship to the

instant case. As we have explained,

the nonenforceability of agreements

expressly providing for meretricious

conduct rested upon the fact that

such conduct, as the word suggests,

pertained to and encompassed prostitu-

tion. To equate the nonmarital

relationship of today to such a

subject matter is to do violence

to an accepted and wholly different

practice.

We are aware that many young

couples live together without the

solemnization of marriage, in order

to make sure that they can successfully

later undertake marriage. This

trial period, preliminary to marriage,

serves as some assurance that the

marriage will not subsequently end

in dissolution to the harm of both

parties. We are aware, as we have

stated, of the pervasiveness of

nonmarital relationships in other

situations.

The mores of the society have

indeed changed so radically in regard

to cohabitation that we cannot impose

a standard based on alleged moral

36.

considerations that have apparently

been so widely abandoned by so many.

Lest we be misunderstood, ver,

we take this occasion to point out

that the structure of society itself

largely depends upon the institution

of marriage, and nothing we have

said in this opinion should be taken

to derogate from that institution.

The joining of the man and woman

in marriage is at once the most

socially productive and individually

fulfilling relationship that one

can enjoy in the course of a lifetime.

(8b) We conclude that the

judicial barriers that may stand

in the way of a policy based u

the fulfillment of the reasonable

expectations of the parties to a

nonmarital relationship should be

removed. As we have explained,

the courts now hold that express

ae will be enforced unless

they rest on an unlawful meretri-

cious consideration. We add that

in the absence of an express agreement,

the courts may look to a variety

of other remedies in order to protect

the parties’ lawful expectations."

Marvin, supra, 18 Cal.3d at 683-684.

The instant case poingently

demonstrates the fallacy in the Louisiana

court's reasoning (and the correctness

in the California court's reasoning)

regarding the discouragement of relation-

ships which serve to erode the family.

John, the wealthier of the two income-produc-

ing partners, was the partner who sought

to avoid marriage. Marriage would have

resulted in Mary Ann's automatic entitle-

ment to her fair share of the fruits

of their joint labors, whereas John's

refusal to marry Mary Ann has, at least

for atime,resulted in her being deprived

of those fruits.

The Louisiana courts’ justifica-

tion becomes even more dubious when Article

1481 is applied to business partners

who incidentally cohabitate. See, e.g.,

Ferguson v. Scheunemann (1959) 167 Cal.App.2d

413.

It is an absurd proposition

that all business partners who have legiti-

mate business relations outside of their

sexual liason must marry in order to

be granted the right to their share of

38.

their’ business acquisitions, and such

compulsion cannot reasonably be taken

as the purpose of the ban on contracts

as between "concubines" and par amours

Thus, it is readily apparent that Article

1481 of the Louisiana Civil Code is over-

inclusive.

The analysis of the requisite

relationship between classifications

and legislative objectives called for

by traditional equal protection standards,

in the classic discussion by Tussman

and tenBroek, "The Equal Protection of

the Laws," 37 Cal. L. Rev. 341 (1949),

Selected Essays 1938-62 (1963), includes

an excellent discussion of "over-inclusive-

ness":

Ibis]! . the type of classification

imposes a burden upon a wider range

of individuals than are included |

in the class of those tainted with )

the mischief at which the law aims.

It can thus be called ‘over-inclusive. '

[It] is exemplified by the quarantine

39.

and the dragnet. The wartime treat-

ment of American citizens of Japanese

ancestry is a e recent instance

of the imposition of burdens upon

a large class of individuals because

some of them were believed to be

disloyal..."

Clearly, Article 1481 of the Louisiana

Civil Code is over-inclusive as it precludes

all persons who have lived together in

“open concubinage" from contracting respect-

ing their immovables with no exception

made for persons such as Mary Ann who

also engaged in independent business

relations with their "paramours".

Thus, by providing dissimlar

treatment for business partners who have

not engaged in sexual relations and busi-

ness partners who have engaged in sexual

relations wholly independent from their

business relationship who are similarly

situated, Article 1481 of the Louisiana

Civil Code violates the Equal Protection

Clause. Eisenstadt, supra, 405 U.S.

40.

at 454-455.

CONCLUSION

For all of the foregoing reasons,

Petitioner, Mary Ann Blackledge, a/k/a

Mary Ann Schwegmann, respectfully requests

that this Honorable Court grant her Petition

for a Writ of Certiorari.

Respectfully submitted,

LAW OFFICES OF

MARVIN M. MITCHELSON

and

BETTYANNE LAMBERT-BUSSOFF

Attorneys for Appellant

MARY SCHWEGMANN

a/k/a/

MARY BLACKLEDGE

41.

* *.

Bac > r

APPENDIX "A"

TWENTY-FOURTH JUDICIAL

DISTRICT COURT

PARISH OF JEFFERSON

STATE O? LOUISIANA

NO. 231-175 DIVISION ''B"

MARY ANN BLACKLEDGE

VERSUS

JOHN G. SCHWEGMANN, JR., ET AL.

FILED:

DEPUTY CLERK

FILED

SEP 28 1982

R. MARTIN

Deputy Clerk

JUDGMENT

Considering Defendants’ Motion

for Summary Judgment filed by defendants

John G. Schwegmann, John F. Schwegmann,

Melba Margaret Schwegmann and Schwegmann

Giant Super Markets, Inc; the pleadings,

depositions and affidavits in this

case; the memoranda and oral arguments

A-l “4

of counsel; for the reasons stated in the

Reasons for Judgment issued this date

and for reasons orally assigned;

IT IS ORDERED that Defendants’

Motion for Summary Judgment be granted

dismissing all of plaintiff's claims ex-

cept that the Court denies the Motion

for Summary Judgment insofar as plaintiff

seeks to recover in quantum meruit for

the value of uncompensated services, if

any, performed separate and apart from

the relationship of concubinage, rendered

by her in furnishing business assistance

to the defendants.

Gretna, Louisiana

September 28, 1982

70 Frank J. Zaccaria

A TRUE COPY OF THE ORIGINAL

ON FILE IN THIS OFFICE

R. MARTIN

Deputy Clerk

24TH JUDICIAL DISTRICT COURT

Parish of Jefferson, LA.

A-2

Nie ee eS ae a A 8 ee ee

TWENTY-FOURTH JUDICIAL

DISTRICT COURT

PARISH OF JEFFERSON

STATE OF LOUISIANA

NO. 231-175 DIVISION "B"

MARY ANN BLACKLEDGE

VERSUS

JOHN G. SCHWEGMANN, JR., ET AL.

FILED:

DEPUTY CLERK ~~

FILED

SEP 28 1982

R. MARTIN

DEPUTY CLERK

ORDER

Considering the Rule to Show

Cause Why the Firms of Stone, Pigman,

Walther, Wittmann & Hutchinson and Char-

bonnet & Charbonnet Should Not Be Recused

from their Representation of Defendants

for a Violation of the A.B.A. and Loui-

siana Codes of Professional Responsibility

A-3

filed by plaintiff Mary Ann Blackledge;

the evidence presented at the hearing

held in this proceeding on September 3,

1982; the memorandum and oral arguments

of counsel; and for reasons orally assigned;

IT IS ORDERED that the plain-

tiff's Rule to Show Cause Why the Firms

of Stone, Pigman, Walther, Wittmann &

Hutchinson and Charbonnet & Charbonnet

Should Not Be Recused from their Repre-

sentation of Defendants for a Violation

of the B.B.A. and Louisiana Codes of

Professional Responsibility is denied

as to Stone, Pigman, Walther, Wittmann

& Hutchinson and is continued without

date as to Charbonnet & Charbonnet.

Gretna, Louisiana

September 28, 1982

50 Frank J. Zaccaria

A-4

TWENTY-FOURTH JUDICIAL

DISTRICT COURT

PARISH OF JEFFERSON

STATE OF LOUISIANA

NO. 231-175 DIVISION "B”

MARY ANN BLACKLEDGE

VERSUS

JOHN G. SCHWEGMANN, JR., ET AL.

FILED:

DEPUTY CLERK

ORDER

Considering the Rule to Show

Cause Why the Negotiated Settlement Should

Not Be Enforced filed by plaintiff Mary

Ann Blackledge; the evidence presented

at the hearing held in this proceeding

on September 3, 1982; the memorandum and

oral arguments of counsel; and for reasons

orally assigned;

IT IS ORDERED that the plaintiff's

thn t

Rule to Show Cause Why the Negotiated

A-5

Settlement Should Not Be Enforced is dis-

missed.

Gretna, Louisiana

September 28, 1982

s/ Frank J. Zaccaria

TWENTY-FOURTH JUDICIAL

DISTRICT COURT

PARISH OF JEFFERSON

STATE OF LOUISIANA

NO. 231-175 DIVISION “B“

MARY ANN BLACKLEDGE

VERSUS

JOHN G. SCHWEGMANN, JR., ET AL.

FILED:

REASONS FOR JUDGMENT

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff Mary Ann Blackledge

has brought this action against John 6.

Schwegmann, his children John. F. Schweg-

mann and Melba Margaret Schwegmann and

certain business entities praying for

judgment declaring her owner of a one-half

undivided interest in Mr. Schwegmann's

property, an interest she values at thirty

million dollars, and certain other relief.

Defendants John G. Schwegmann,

A-7

John F. Schwegmann, Melba Margeret Schweg-

mann and Schwegmann Giant Super Markets,

Inc. have filed a Motion for Summary Judg-

ment requesting dismissal of all plain-

tiff's claims. For purposes of the motion,

we accept as true the plaintiff's exten-

sive deposition testimony.

Plaintiff claims that she and

Mr. Schwegmann, who lived together without

marriage for twelve years, had an oral

contract. The substance of the contract

she claims is that early in their rela-

tionship Mr. Schwegmann said he wanted

to “share everything” with her and that

she said okay. at the time of this

conversation, Mr. Schwegmann owned a chain

of supermarkets and other substantial

assets and plaintiff owned nothing whatso-

ever. The claimed contractual agreement

was never reduced to writing, and there

were no witnesses to the alleged conversa-

A-8

tion.

Plaintiff claims that, on the

basis of this contract, she acted as

a “wife" to Mr. Schwegmann, performed

household services for him, helped to

raise his daughter Margie Schwegmann,

assisted him in his business and political

careers, and gave him investment advice.

Plaintiff ceased to live at Mr. Schwegmann's

home in May 1978. He continued to make

payments to her, and they continued to

have intimate relations until she filed

this suit in october 1979.

In addition to her claims based

on the alleged oral contract, plaintiff

requests recognition of a constructive

trust on her behalf on one-half of Mr.

Schwegmann's property, and compensation

in quantum meruit for domestic and busi-

ness services. She also prays for certain

declaratory relief, for damages based

A-9

on interference with contract rights,

and for a declaration that a sale of stock

was a simulation. Ms. Blackledge claims

that a partnership was created between

herself and Mr. Schwegmann, and asks the

Court to dissolve the partnership and

distribute the assets.

We will discuss separately each

of plaintiff's claims.

Oral Contract

Plaintiff requests specific

performance of an oral contract between

herself and Mr. schwegmann, or, alterna-

tively, damages for breach of that con-

tract. In her petition plaintiff alleges

that she and Mr. Schwegmann agreed that

they would live together", that they

would combine their skills, efforts, labor

and earnings and that they would “share

equally any and all assets and property

acquired and/or accumulated as the result

A-10

of said joint skills, efforts, labor and

earnings." In her deposition plaintiff

testified that she and Mr. schwegmann

had a conversation after she moved into

his house in which Mr. Schwegmann stated

that he wished to "share everything" with

her and she said okay“. She further

testified that because of these words

it was her understanding that she and

Mr. Schwegmann were going to pool all

of their assets, work together and share

their assets. She specifically testified

that the understanding between herself

and Mr. schwegmann was never reduced to

writing.

Defendants claim that no valid

contract was every confected between

plaintiff and Mr. Schwegmann for four

independent reasons. First, the contrac-

tual agreement" alleged by Miss Blackledge

is a universal partnership, and is invalid

4-11

because it was not made in writing. Sec-

ond, no contract was ever confected be-

tween Miss Blackledge and Mr. Schwegmann

because under Louisiana Civil Code arti-

cles 1779(3) and 1886 the object of the

alleged contract was not certain. Third,

the alleged contract is not supported

by adequate consideration; and fourth,

the alleged contract is void because it

is meretricious.!

The Court does not find it nec-

essary to reach the last three arguments

made by the defendants, because the Court

finds that the contract plaintiff alleges

would have been a universal partnership

1 For reasons stated below, the tes-

timony of the plaintiff leaves no

doubt that the alleged contract was

in fact meretricious. This fact

alone would probably suffice to de-

feat the plaintiff's contract claim

and many of the other claims that

she asserts.

A-12

The Court does not find it nec-

essary to reach the last three arguments

made by the defendants, because the Court

finds that the contract plaintiff alleges

would have been a universal partnership

which could not have been valid unless

it had been made in writing.

Article 2829 of the Louisiana

Civil Code, repealed in 1980, defined

a universal partnership as follows:

Universal partnership is a

contract by which the parties agree

to make a common stock of all the

proeprty they respectively possess;

they may extend it to all property

real or personal, or restrict it

to personal only; they may, as in

other partnerships, agree that the

property itself shall be common

stock or that the fruits only shall

be such; but property which may

accrue to one of the parties, after

entering into the partnership, by

donation, succession or legacy, does

not become common stock, and any

stipulation to that effect, previous

to the obtaining the property afore-

said, is void.

Articles 2830 and 2831 contained che.

A-13

mes 4

following additional provisions relating

to universal partrerships:

A universal partnership of pro-

fits includes all the gains that

may be made from whatever source,

whether from property or industry,

with the restriction contained in

the last article, and subject to

all legal stipulations to be made

by the parties.

If nothing more is agreed be-

tween the parties, than that there

shall be a universal 8

it shall extend only to the profits

of the property each shall possess,

and of their credit and industry.

The “contractual agreement"

described in the plaintiff's petition

fits exactly the codal definition of uni-

versal partnership. The plaintiff alleges

that she and Mr. Schwegmann agreed that

„they would combine their skills, efforts,

labor and earnings and would share equally

and and all assets and property acquired 4

and / or eccumulated as a result of said

joint skills, efforts, labor and earnings.”

Indeed, Miss Blackledge asks in her prayer

A-14

that this Court determine that the con-

duct of the parties created a “partner-

ship" that includes “all of the said

assets and property“, and asks that the

partnership“ be dissolved.

Similarly, the “sharing" agree-

ment described in Miss Blackledge's depo-

sition testimony is plainly a universal

partnership. Plaintiff stated it was

her understanding that she and Mr. Schweg-

mann were going to pool all of their

assets, work together, share the assets

and share the fruits of their labors.

Plaintiff clearly testified that the agree-

ment was not reduced to writing.

Under the Civil Code, a univer-

sal partnership cannot be created vith-

out writing signed by the parties, and

registered in the manner hereafter pres-

cribed." La. Civ. Code Art. 2834 (re-

pealed by Acts 1980 No. 150). An unwritten

A-15

9 — 8

ee, - “ = ö 2 e oe oo

and unrecorded universal partnership has

no effect, even as between the parties.

Heatwole v. Stansbury, 212 La. 685, 33

So.2d 196 (1947); Lagarde v. Dabon, 155

La. 25, 98 So. 744 (1923).

It has been repeatedly held

that Louisiana law does not recognize

as a valid universal partnership an oral

agreement between a man and woman who

live together and agree to split certain

properties standing in the name of one

of them. Heatwole v. Stansbury, supra;

Foshee v. Simkin, 174 So.2d 915 (La. App.

Ist Cir. 1965); Chambers v. Crawford,

150 So.2d 61 (La. App. 2nd Cir. 1963);

Succession of Davis, 142 So.2d 481 (La.

App. 2nd Cir. 1962); Gadlin v. Deggs,

23 So.2d 704 (La. App. Orl. Cir. 1945).

Therefore, the Court holds that

the oral contract alleged by the plaintiff E

is a universal partnership that is invalid

A-16

decause not made in writing.

Constructive Trust

Plaintiff claims damages based

on a constructive trust she asks this

Court to impose on one-half of Mr. Schweg-

mann's property. She asks the Court to

recognize this trust because of a contract

she says is implied by the fact that she

and Mr. Schwegmann cohabited for twelve

years. She claims that she had a "rea-

sonable expectation and belief“ that she

and Mr. Schwegmann had an agreement, and

that she had the greatest confidence and

trust in Mr. Schwegmann. She relied on

him to disclose their joint properties

and divide them in an equal manner.

A constructive trust, or equit-

able lien, is commonly understood to mean

the equitable imposition of a trust of

lien on property because of a fiduciary

telationship between the parties.

A-17

Even if the Louisiana Civil

Code allowed the imposition of a construc-

tive trust on property, which it does

not, plaintiff has not established the

fiduciary relationship that is at the

heart of the concept of a constructive

trust.

Moreover, in Louisiana not even

a wife has a privilege on the property

of her husband, even for her dotal or

paraphernal funds received by him.

Friend v. Fenner, 2 La. Ann. 789 (1847).

Therefore, the Court refuses to impose

a constructive trust on property for

plaintiff's benefit.

Implied Contract

Miss Blackledge asks the Court

to award her damages based on a theory

of implied contract. She apparently takes

the position that the fact that she and

Mr. Schwegmann lived together, even though

A-18

without benefit of marriage, allows her

a community-like interest in his property

and the right to receive a form of quasi-

alimony. What Miss Blackledge asks the

Court, in essence, is to characterize

her relationship with Mr. Schwegmann as

a marriage, when in fact she and Mr. Sch-

wegmann were never married to each other

and neither of them ever believed they

were married to each other. This the

Court refuses to do.

Claims like the plaintiff's

are not foreign to Louisiana courts.

Louisiana law has defined a person in

Miss Blackledge's position as a concubine,

a woman who “occupies the position, per-

forms the duties, and assumes the respon-

sibilities of a wife, without the title

and privileges flowing from a legal nar-

tiage." Purvis x. Purvis, 162 So.239,

240 (La. App. 2d Cir. 1935). Louisiana

A-19

terminology for the man with whom a concu-

bine lives is par amour

A great body of jurisprudence

has grown up confirming that concubines

and paramours have no rights in each

other's property. Jackson v. Hampton,

134 So.2d 114 (La. App. 2d Cir. 1961);

Rochelle v. Hezeau, 15 La. Ann. 306 (1860).