# Opposition Brief — Gould v. Alleco, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1821%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1058

## Text

Office . $y
Preme C

FEB 1995

ALEXANDER | Steves
ERK

IN THE
Supreme Court of the United States
OCTOBER TERM, 1984

JEFFREY K. SMITH,

Petitioner,

VS.

GEORGE P. RUSSELL,
Respondent,

No. 84-924

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

ELIHU H. BERMAN

KRUG, BERMAN & SILVERMAN
P.O. BOX 6801

1525 S. Belcher Road

Clearwater, Florida 33518

Counsel for Respondent

CN
Sw

INDEX

i re bade en hese bitubeseeees i-vii
GREE TON BPORORERR: once cccsvenscsccccescess viii

Constitutional and statutory
SPOVTEIONG. SRUDTVOGs ccc cc ccccccccsecess viii

SURSUMINC OF GD GUGRi a 6 is dé cdcesscsesess vViii-xii

Reasons why the writ should be
denied..... eT TTCTICT TT Te pedesececceseesa 1

1. The Decision Below Is in Harmony
with the Decisions of this Court, The
Supreme Court of Florida and the Courts of
Other States as to whether a Police Officer
41S. GB PHUVIS CET IG ION ic oc dei ce deus veh weed ¥obsee 1

2. The Question in The Argument of
the Petitioner Is, Not Only Unimportant,
but also, It Would Be Unduly Cumbersome For
This Court To Entertain The Question Found
In the Petitioner's Argument.....eecceeeeceeeeel3

3. The Decision Below does Not Meet
the Requirement Nor the Exception to
Finality. Therefore This Court Does Not
Have Jurisdiction to Grant a Writ of
CORT OE Eo b05 450 0646 00d5.050000 00 bd eb woh ORO ees 14

Ce a ee ee eS ee F

IN THE
Supreme Court of the United States
OCTOBER TERM, 1984

JEFFREY K. SMITH,

Petitioner,

VS.

GEORGE P. RUSSELL,
Respondent,

No. 84-924

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

The respondent George P. Russell,
respectfully requests that this Court deny the
petition for writ of certiorari seeking review of
the Florida Supreme Court opinion in this case. |
That opinion is reported at 456 So.2d 462 (Fla.
1984).

CITED AUTHORITIES

CASES
United States Supreme Court: Page
Cox Broadcasting Corp. v. Cohn, 420 re
U.S. 469 (1975). 16
Gertz v. Robert Welch, Inc., 418 5
U.S. 323 (1974).
Henry v. Collins, 380 U.S. 356 (1956). 6
Houston v. Moore, 16 U.S. 433 (1815). 15
Hutchinson v. Proxmire, 443 U.S.111 5
(1979).
New York Times Co. v. Sullivan, 376 viii, x, 1
U.S. 254 (1964). 8,
Rosenblatt v. Baer, 383 U.S. 75 (1966). xii
St. Amant v. Thompson, 390 U.S. 727 ae
{1908).
Time Inc. v. Pape, 401 U.S. 279 (1971). 7
Urie v. Thompson, 337 U.S. 163 (1949). 15

Federal Courts of Appeal:

Gray v. Udevitz, 656 F.2d 588 (10th 9, 10
Cir. 1987). 13

Meiners v. Morianty, 563 F.2d 343 (7th 8
Cir. 19/77)

(ii)

CASES

Miscellaneous:

Akins v. Altus Newspapers, Inc., 609 P.2d
1263 (Ok 1977), cert. denied, 449 U.S.

a.
1010 (1980).

Ammerman v. Hubbard Broadcasting, Inc., 91
W.M. 250, 572 P.2d 1258 (Ct.App. 1977) cert.

denied, 91 .N.M. 249 572 P.2d 1257 (1977)
cert. denied, 436 U.S. 906 (1978).

Angelo v. Brenner, 84 111.App.3d 594, 40
Th Dec 377, 406 N.E.2d 38 (1980).
Ashton v. Commonwealth, 405 S.W.2d 562 (Ky.

T5965) rev'd on other grounds, 384 U.S. 195
(1966).

Axelrod v. Califano, 357 So.2d 1028 (Fla.
Tst DCA 1978).

Bishop v. Wometco Enterprises, Inc., 235 So.
2d 755 (FI 3d D.C.A S70) cert. denied,

a. * s aa
240 So.2d 813 (Fla. 1970).

Brophy v. Philadelphia Newspapers, Inc., 281
Pa. Super. 588, 422 A.2d B25 CTOROY. :

Cason v. Baskin, 159 Fla. 31, 30 So.2d 635
(1947).

Cibenko v. Worth Publishers, Inc., 510
F.Supp. /61 (N.J. 1981).

Cline v. Brown, 24 N.C.App. 209, 201 S.E.2d
cert. denied, 286 N.C. 412, 211.
S.E.2d 793 (1975).

(iii)

Page

e d Dept. 1978).
roeeeney v. Des Moines Register & Tribune
Lo., 7 . \ Owa 1976).

(v)

Miscellaneous Cases (Continued) Page

McClain v. Arnold, 275 S.C. 282, 270 S.E.2d -
124 (T1980).

Moriarity v. Lippe, 162 Conn. 371, 294 9, 10

NAACP v. Moody, 350 So.2d 1365 (Miss. 1977). 8
Orr v. Lynch, 60 App.Div.2d 949, 401 N.Y.S. 9
2d 697 (3d Dept. 1978), aff'd, 45 N.Y.2d

903, 411 N.Y.S.2d 10, 383 N.E.2d 562 (1978).
Ramacciotti v. Zinn, 550 S.W.2d 217 (Mo.Ct. 7

App. 1977).

Rawlins v. Hutchinson Publishing Co., 218 Q
Kan. 205, 543 P.2d 988 (1975).

Roberts v. Dover, 525 F.Supp. 987 (M.D.Tenn. 8
1987).

Roche v. Egan, 433 A.2d 757 (Me. 1981). ae
sia 1
Romero v. Abbeville Broadcasting Service, 7

420 So.2d 1247 (La.App. 1982).

Rosales v. City of Eloy, 122 Ariz, 134, 593 7
P.2d 688 (Ct.App. 573}

Rowden v. Amick, 446 S.W.2d 849 (Mo.App. 9,11
T969).

Russell v. Smith, 434 So.2d 342 (Fla. 2d xii
DCA 1983).
Russell v. Smith, 456 So.2d 462 (Fla. ix-xi

T984).
(vi)

Miscellaneous Cases (Continued) Page

Scelfo v. Rutgers University, 116 N.Y. 9, 10
Super. 403, oR R.2d 445 1391).
soyeoer v. A.S. Abell Company, 557 F.Supp. 7,9

Shafer v. Lamar Publishing Co., 621 S.W.2d ce)
7U9 (Mo.App. 1981).

State excel. Clyatt v. Hocker, 39 Fla. 477, 4
Z2 So./2).
Thuma v. Hearst Corp., 340 F.Supp. 867 7
TMd. 1972).

Torres v. Playboy Enterprises, Inc., 235 8
So.2d 759 TS a D.Ca. T1970, cert. denied,

240 So.2d 813 (Fla. 1970).

Wardlow v. City of Miami, 372 So.2d 976 2
(Fla. 3d DCA EDF

Weber v. Woods, 37 111.App.3d 122, 334 N.E. 9

West v. New York Tarot News, 5.Med.L.Rptr. 6
up. . ”

White v. Fletcher, 90 So.2d 129 (Fla. zo 3, §
T3956).

Willis v. Perry, 10 Med.L.Rptr. 1217, (Colo. a
pp-

(vii)

OTHER AUTHORITY

Libel and Slander: Who is a Public
Utficial or Otherwise Within the Federal

Constitutional Rule Requirin Public
Officials to Show Actual Malice TS A.L.R.

and Supp.

BOOKS AND TREATISES

R. L. Stern & E. Gressman, Supreme Court

Practices (5th ed. 1976).

C. A. Wright, Law of Federal Courts (3d
ed. 1976).

(viii-a)

Page

15

15, 16

QUESTION PRESENTED

Whether this Court should grant this

writ of certiorari to determine how far down
among the ranks of government employees the
public official dtesignation extends for purposes

of the New York Times Co. v. Sullivan rule and to

otherwise specify the categories of persons who

would or would not be included.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves a question relevant
to United States Constitutional Amendment I;
United States Constitutional Amendment XIV; 28
U.S.C. Section 1257(3).

STATEMENT OF THE CASE

On September 13, 1984, the Florida

Supreme Court issued its opinion in the case sub f

(viii)

RE ee a eT Te

judice. Respondent believes that the statement
of facts as set out in Petitioner's brief is
inaccurate and prejudicial in that certain facts
are exaggerated. Because the opinion concisely
sets forth the facts, portions of that opinion
are repeated below:

"Respondent Russell, the defendant, was
arrested for driving while intoxicated (DWI) by
petitioner/plaintiff Smith, a City of St.
Petersburg police officer. At the time of his
arrest and later to the judge when he pleaded

nolo contender to the DWI charge, the defendant

complained about the arrest procedure and the
plaintiff's use of unnecessary force. Both the
judge and plaintiff suggested to the defendant
that he register a complaint with the chief of
police.

"The defendant wrote three letters
detailing his complaints about the plaintiff, one
or more of which were sent to the police chief,

the traffic court judge, the plaintiff,

(ix)

defendant's attorney, and Judge Shingler a
friend of the defendant. The plaintiff
subsequently was passed over for promotion and
sued the defendant for defamation.

"At trial the defendant requested jury
instructions that the plaintiff, as a police
officer, was a public official as a matter of
law, and that criticism of a public official
relating to his official conduct was actionable
only upon a showing of actual malice under New

York Times Co. v. Sullivan, 376 U.S. 254 (1964).

The trial court refused, but did instruct the
jury to consider the applicability of a privilege
under the common interest or duty regarding the
subject matter to comment to another with a

corresponding interest or duty. See, e.g., Lewis

v. Evans, 406 So. 2 489 (Fla. 2d DCA 1981):

Axelrod v. Califano, 357 So. 2d 1028 (Fla. Ist

DCA 1978). The jury found for the plaintiff, t
. awarding compensatory and punitive damages.

"The defendant appealed, claiming the

(x)

iaiciaeeeneeiaannmaiiiiaaiiiliila

trial court erred in refusing to instruct the
jury on the qualified privilege to criticize a
public official who in order to recover ffor
defamation must establish that a defamatory
communication about him was made with actual
malice or reckless disregard for the truth."

"The plaintiff argues that refusal to
instruct on the public official privilege was
harmless error in that a finding of malice was
implicit in the jury's punitive damage award;
thus, even had the public official instruction
been given, the jury's finding of malice would
have defeated the privilege. The district court
disagreed, finding that "[t]he ‘common interest’
instruction left the jury free to consider the
case as if no qualified privilege existed,
whereas the ‘public official’ instruction would
have bound the jury to give consideration to a
qualified privilege." Smith, 434 So. 2d at 344.
We approve the district court's decision. A

police officer qualifies as a public official as

(xi)

defined in Rosenblatt v. Baer, 383 U.S. 75,

85-86, (1966)."

On September 13, 1984, the Florida
Supreme Court approved the decision of the Second
District Court of Appeal and the decision of the
appellate court which reversed and remanded the

case for new trial. Russell v. Smith, 434 So. 2d

342.

(xii)

REASONS WHY THE WRIT SHOULD BE DENIED

1. The decision below is in harmony
with the decisions of the court, the Supreme
Court of Florida and courts of other states as to
whether a police officer is a public official.

New York Times v. Sullivan and its

progeny have held in an unbroken line of
decisions that police officers are "public
officials".! Petitioner offers in response to
this unanimous and overwhelming body of precedent
only the erroneous argument that the rationale of

New York Times v. Sullivan does not support these

holdings. In fact, as shown below, all courts
which have considered the issue have held all

police officers, of whatever rank or title, to be

I. While most of these decisions appear to

involve only the press, it has been clear since

New York Times v. Sullivan, 376 U.S. 254 (1964),
T that the citizen is equally protected. As the
Supreme Court noted in Sullivan, "we sustain the
contentions of all the petitioners under the
First Amendment's guarantees of freedom of speech
and of the press." Id. at 265.

| thle eeaennll

“public officials" because police play a unique
and critical role in the maintenance of this
society. Police directly wield extraordinary and
virtually unsupervised governmental power over
the public at large. For this reason public
debate about the conduct of police must be "wide-
open and robust". Only application of the actual
malice rule can secure such’ freedom of
expression.

Courts Have Universally Found Law Enforcement
Libel Plaintiffs To Be "Public Officials"

Long before the United States Supreme
Court constitutionalized the law of defamation
the Florida Supreme Court determined that police
officers are “public officials” under the Florida

common law of libel. White v. Fletcher, 90 So.2d

129 (Fla. 1956); see also Wardlow v. City of

Miami, 372 So.2d 976, 979 n4 (Fla. 3d D. C. A.
1979). Florida courts created a qualified

privilege al’owing members of the public to

freely comment on the actions of _ public
officials. The Florida Supreme Court has held:

",eeany one who seeks public employment or
public office or who makes his living by
dealing with the’ public or otherwise seeks
public patronage, submits his private
character to the scrutiny of those whose
patronage he implores, and that they may
determine whether it squares with such a
standard of integrity and correct morals
as warrants their approval.”

>

Kennett v. Barber, 159 Fla. 81,83, 31 So.2d 44,46

(1947).

This early case became the cornerstone
for the Florida Supreme Court decision that
held a uniformed policeman is a public official:

White v. Fletcher, supra. Here, the plaintiff

was a police officer for the City of Orlando,
who received much public attention because he
was a witness in the prosecution of a_ prostitute
in whose activities he was allegedly involved.

The court based its decision on the following

“SS?

rationale:

"The uniformed policeman, therefore, was
certainly subject to fair comment § and
criticism from any member of the public of

the City of Orlando. The generally accepted
rule is that “public officials" or "public
men" are subject to such fair comment.
Cason v. Baskin, 159 Fla. 31, 30 So.2d 635.
This court has said a person whose duty it
is to perform agency for the State is a
"public officer," and that a person in the
service of the government who derives his
position from duly authorized election or
appointment is a public officer. State ex
rel. Clyatt v. Hocker, 39 Fla. 477, 22 So.
721. there could be little doubt that a

policeman, then, is a "public: officer."

White v. Fletcher, 90 So. 2d 129 at 13)
(trla. 1956).

Thus, in tlarge measure Florida
anticipated the development of the federal
constitutional protection that has been afforded
speech about public officials in the 20 years

since New York Times v. Sullivan.

In New York Times v. Sullivan, the

United States Supreme Court constitutionalized
libel law by holding a “public official" may not
recover damages for a “defamatory falsehood

relating to his official conduct unless he proves

that the statement was made with ‘actual malice’

- that is, with knowledge that it was false or
with reckless disregard of whether it was false
or not." Id. at 279-80. In explicating the New

York Times v. Sullivan standard, the Supreme

Court has held the public official must show with

"clear and convincing proof," Gertz v. Robert

Welch, Inc., 418 U.S. 323, 342 (1974), "that the

defendant in fact entertained serious doubts as

to the truth of his publication." St. Amant v.

Thompson, 390 U.S. 727, 731 (1968).
Although not every person on government

payroll is a public official, Hutchinson v.

Proxmire, 443 U.S. 111, 119 n.8 (1979), "every
court that has faced the issue has decided that
an officer of law enforcement, from ordinary
patrolman to Chief of Police, is a ‘public
official’ within the meaning of federal

constitutional law." Roche v. Egan, 433 A.2d

757, 762 (Me. 1981); see generally, Libel and

Slander: Who Is A Public Official Or Otherwise

Within The Federal Constitutional Rule Requiring

Public Officials To Show Actual Malice, 19 A.L.R.

3d 1361 Section 5(d) (1968) and Supp.1983).

Law enforcement personnel of every rank
and description have been held to be ‘public
officials’ for libel purposes, including wardens

or prisons,’ chiefs of police,* sheriffs,* deputy

2. West v. New York Daily News, 5 Med. L. Rptr.
1269 (N.Y. Sup. Ct. 1979) (arden at the Brooklyn
House of Detention conceded he was a public
official).

3. Jurkowski v. Crawley, 637 P.2d 56 (Okla.

1981); Brophy v. Philadelphia Newspapers, Inc.,
281 Pa. Super. 588, 4227 A 5G 625 ALOE Goolsby

v. Wilson, 146 Ga. App. 288, 246 S.E.

; Henry v. Collins, 380 U.S. 356 (1965);
Ashton v. Commonwealth, 405 S.W.2d 562 (Ky.
1965), rev'd. on other grounds, 384 U.S. 195
(1966); Kidder v. Anderson, 354 So.2d 1306 (La.
1978), cert. denied, 439 U.S. 829 (1978).

4. Foster v. Upchurch, 624 S.W.2d 564 (Tex.

1981); Hoag v. Clegg, 5 Med.L. Rptr. 1732 (Mich.
Cir. Ct. oth sides stipulated that
plaintiff was a public official).

sheriffs,? deputy chiefs of detectives,® police

captains,’ sergeants ,® detectives,’ federal drug

5. Romero v. Abbeville Broadcasting Service, 420
So.2d 1247 (La. App. 1982); Ammerman v. Hubbard

Broadcasting, Inc., 91N.M. 250, 572 P.2d 1258
(Ct. App. 1877} cert. denied, ~1 N.M. 249, 572
P.2d 1257 (1977), cert. denied, 436 U.S. 906
(1978); Hirman_v. Rogers, 257 W.W.2d 563 (Minn.
1977); Cline v. Brown, 24 N.C. App. 209, 201
S.E.2d 446 (T1974), cért. denied, 286 N.C. 412,
211 S.E.2d 793 (1975); St. Amant v. Thompson, 390
U.S. 727 (1968).

6. Time Inc. v. Pape, 401 U.S. 279 (1971).

7. McCarney v. Des Moines Register & Tribune
Co., 239 NW 152 (Towa 1976) court implicitly

found plaintiff to be a public official; Thuma v.
Hearst Corp., 340 F.Supp. 867 (Md. 1972); Mahnke
Vv. Northwest Publications, Inc., 280 Minn. 328,

8. Seymour v. A.S. Abell Company, 557 F.Supp.
951 (Nd. T5983); Rosales v. City of Eloy, 122
Ariz. 134, 593 P.2d 668 (Ct. App. 1379);
Ramacciotti v. Zinn, 550 S.W.2d 217 (Mo.Ct. App.
1977); Corbett v. Register Publishing Co., 33
Conn.Supp. 4.

alt tts

9. Roche v. Egan, 433 A.2d 757 (Me. 1981);
| Colombo v. Times-Argus Assn., 135 Vt. 454, 380
) K.2d 80 (1977).

st ceeaeeieaneincianaall

agents, 1° federal customs inspectors, /+ state

highway patrolmen, !4 and city investigators. />

JO. Hansen v. Stoll, 130 Ariz. 454, 636 P.2d

1236 (Ct.App. 1981); Hart v. Playboy Enterprises,
Inc., 5 Med.L. Rptr.TSTT (D.Kan. 1375): Netners

v. Moriarty, 563 F.2d 343 (7th Cir. 1977).

11. Torres v. Playboy Enterprises, Inc., 7 Med.
L.Rptr. TT82 (S.D-Tex. TS8U).

12. Roberts v. Dover, 525 F.Supp. 987 (M.D.Tenn.

1981); NAACP v. Moody, 350 So.2d 1365 (Miss.
1977).

13. Bishop v. Wometco Enterprises, Inc., So.2d
759 (Fla. » cert. denied, So.2d
813 (Fla. 1970).

More important still, the state and
federal courts have uniformly found that police

patrolmen are public officials.!4

‘
,

14- Harrison ve Wiillams, 430 So.2d 585 (Fila. 4th DCA 1983);
Hines ve Florida Publishing Co-, 7 Medel. Rtr. 2605 (Fla. 4th
Jude Cire Cte 1982); Willis ve Perry, 10 Med. Le Rptre. 1217
(ColoeApp. 1983); Seymour ve. Ae Se Abel! Company, 557 F.Supp.
95! (De. Md. 1983); Gomes ve Fried, 136 Cale App.e3d 924, 186
Cale Rptr. 605 (ist Dist. 1982); Dunlap ve Philadelphia
Newspapers, ince, 350! Pae Super. 475, 448 A.2d 6 (1982); Gray
Ve Udevitz, 656 Fe2d 588 (10th Cir. 1981); Clbenko ve Worth
Publishers, ince, 510 Fs Suppe 76! (NeJe 1981); Shafer v-
Lamar Publishing Coe, 621 SeWe2d 709 (Mos App. 1981); McClain
ve Arnold, 275 SeCe 2862, 270 SeE«2d 124 (1980); Angelo v-
Brenner, 84 I1l. Appe3d 594, 40 I11-Dec 337, 406 NeE«2d 38
(1980); La Rocca ve New York News, Ince, 156 NeJe Super. 59,
383 Ae2d 451 (App. Dive 1978); Malerba v. Newsday, Ince, 64
Appe Dive2d 623, 406 NeYeSe2d 5352 (2d Dept. 1978); Orr ve
Lynch, 60 Apps Dive2d 949, 401 NeYeSe2d 897 (3d Dept. 1978),
off'd., 45 NeYe2d 905, 4/11 NeYeSe2d 10, 383, NeE-2d 562
(1978); Delle v. Berkey, 4! Md.App. 47, 395 Ae2d 1189 (1978),
atf'de, 287 Md. 302, 413 Ae2d 170 (1980); Akins ve Altus
Newspapers, inc., 609 P.2d 1263 (Oklae 1977), cert. denied,
449 U.S. 1010 (1980); De! | Inger ve Belk, 34 NeCeApp. 288, 238,
S.E+2d 788 (1977), cert. denied, 294 NeC. 182, 241 S-E.2d 517
(1978); Weber ve. Woods, 31 ite Appe3d 122, 334 NeEo2d 857
(1975); Rewlins ve Hutchison Publishing Co., 218 Kane 295,
543 P.2d 988 (1975); Moriarty ve Lippe, 162 Conn. S71, 294
Ae2d 326 (1972); Rowden ve Amick, 446 SeW-2d 849 (Moe App.
1969); Coursey v- Greater Niles Township Publishing Corp., 40
Itle2d 257, 239 NeEo2d 8357 (1968); Scelfo ve Rutgers
University, !16 NeJe Supers 403, 282 Ae2d 445 (1971).

10

These courts hold that patrolmen
“perform governmental duties directly related to
the public interest and have or appear to have
substantial responsibility for or control over

the conduct of governmental affairs," Scelfo v.

Rutgers University, 116 N.Y. Super.403, 282 A.2d

445 at 449 (1971), and their position "has such
apparent importance that the public has an
independent interest in the qualifications and
performance of the person who holds it, beyond
the general public interest in the qualifications
and performance of all government employees.”

Gray v. Udevitz, 656 F.2d 588 (10th Cir. 1981).

“Although a comparably low-ranking
government office, a patrolman's office, if
abused, has great potential for social harm."

Moriarty v. Lippe, 162 Conn. 371 294 A.2d 326 at

330 (1975).
However, in recent years the Court has

departed!® from its strict interpretation of the
jurisdictional statute, 28 U.S.C. 1257(3), in Cox

Broadcasting Corp. v. Cohn, !7 the court explained

the limited exceptions for which it would hear

cases when finality was questionable, by saying:

15. C.A. Wright, Law of the Federal Courts (3d
ed. 1976), p. 537, and R.L. Stern & E. Gressman,
Supreme Court Practices (5th ed. 1976) _ pp.
177-183. See also the following line of cases
which held that a judgment or decree of the
highest court of state reversing an _ inferior
court and specifically remanding the case to the
lower court for a new trial is not a final
judgment, and hence is not reviewable by the
United States Supreme Court. Houston v. Moore,
16 U.S. 433 (1815); Urie v. Thompson, 337 U.S.
163 (1949).

16. Law of Federal Courts, supra pp.539-540.

17. 420 U.S. 469.

tial

16

"those situations where the federal issue
has been finally decided in the state courts
with further proceedings pending in which
the party seeking review here might prevail
on the merits on nonfederal grounds, thus
rendering unnecessary review of the federal
issue by this Court, and where reversal of
the state court on the federal issue would
be preclusive of any further litigation on
the relevant cause of action rather than
merely controlling the nature and character
of, or determining the admissibility of
evidence in, the state proceedings still to
come. In these circumstances, if a refusal
immediately to review the state court
decision might seriously erode federal
policy, the Court has entertained and
decided the federal issue, wnich itself has
been Tinally determined by the state courts
for purposes of the state litigation."
(emphasis added).

420 U.S. 46 at 482-483.
Although this case may fall into the

same category as Cox, supra, it does not merit

this Court's audience since it does not

"seriously erode federal policy.”

18. Law of Federal Courts, supra pp.539-540.

CONCLUSION

For these reasons, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

/ KRUG, BERMAN & SILVERMAN
1525 South Belcher Road
P. 0. Box 6801
Clearwater, FL 33518

Council for the Respondent

CERTIFICATE OF SERVICE

I hereby certify that on this / day
of February, 1985, three copies 0 the

Respondent's Brief In Opposition of the Petition
for Writ cf Certiorari were mailed, postage
prepaid, to Joseph M. Ciarciaglino, Jr., Esquire;
of Osborne & Ciarciaglino, 433 Fourth Street
North, St. Petersburg, Florida 33701, counsel
for the Petitioner. Further, I certify that all
parties required to be serviced have been served.

eS

Council for the Respondent

x

i

---

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