Respondents Brief — Marshall v. McMahan

| Office-Supremo Court, U.S.

FiILED

Pr OCT 13 i944

ALEXANDER L. STEV

No. 84-388 aaa

In The

Supreme Court of the United States

October Term, 1984

fa’

Vv

PEGGY MARSHALL,

Petitioner,

v.

CAROLYN P. McMAHAN,

Respondent.

re

Vv

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF TENNESSEE

ft.

Vv

JoHn A. WALKER, JE.

Counsel of Record

715 First American Center

P.O. Box 2774

Knoxville, Tennessee 37901

(615) 523-0700

Attorney for Respondent

Carolyn P. McMahan

Of Counsel:

Wa ker & Waker, P.C.

715 First American Center

P.O. Box 2774

Knoxville, Tennessee 37901

(615) 523-0700

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

~ BEST AVAILABLE COPY

QUESTIONS PRESENTED

1.. Whether appointment of a successor clerk of court

when the term of the predecessor clerk had expired, prior

to a hearing on the issue of the length of the term of the

predecessor clerk, raises a substantial federal question

of due process of law within the meaning of the Four-

teenth Amendment.

2. Whether this case is moot, the term of the prede-

cessor clerk having now expired even under her theory

of the case.

TABLE OF CONTENTS

Pages

Questions Presented i

Statement of the Case 1

Reasons For Denying The Petition 1

Conclusion a:

TABLE OF AUTHORITIES

CasEs:

In re Appointment of Clerk & Master for Sevier

County, 670 S.W.2d 215 2,4

DeF unis v. Odegaard, 416 U.S. 312 (1974) 4

Duncan v. Tennessee, 405 U.S. 127 (1972) 2

Equitable Life Assurance Society v. Brown, 187 U.S.

308 (1902) 2

Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594

(1950) 3

Franks v. Bowman Transportation Co., Inc., 424 U.S.

747 (1976) 4

Henry v. State of Miss., 379 U.S. 443 (1965) ae

Milheim v. Moffatt Tunnel Improvement District, 262

U.S. 710 (1923) 2,3

Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974) = 3

Phillips v. Commissioner, 283 U.S. 589 (1931) 83

Scripto, Inc. v. Carson, 362 U.S. 207 (1960) 00.4

Wilson v. Standefer, 184 U.S. 399 (1902) 3

Zucht v. King, 260 U.S. 174 (1922) 2

STATUTE:

28 U.S.C. § 1257(3) 1,2

No. 84-388

In The

Supreme Court of the United States

October Term, 1984

fy.

—-

PEGGY MARSHALL,

Petitioner,

v.

CAROLYN P. McMAHAN,

Respondent.

Ly

Vv

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF TENNESSEE

ny

Vv

STATEMENT OF THE CASE

Respondent generally agrees witk the chronology of

events set forth in the Petitioner’s Statement of the Case.

fy.

Vv

REASONS FOR DENYING THE PETITION

Jurisdiction of this Court is invoked by Petitioner

under 28 U.S.C. §1257(3) on the theory that her tenure

as a court clerk was terminated before she had an oppor-

tunity for a hearing, in violation of the Due Process

2

Clause of the Fourteenth Amendment (Petition, pp. 22-

27). However, the Petition should be denied because (1)

the federal question is insubstantial, since Petitioner was

in fact accorded a hearing and therefore “due process,”

and (2) the issues raised by Petitioner are moot.

Insubstantial Federal Question

For this Court to grant a petition for certiorari pur-

suant to 28 U.S.C. § 1257(3), the federal question must be

substantial. Zucht v. King, 260 U.S. 174 (1922); Duncan

v. Tennessee, 405 U.S. 127 (1972). It is well settled law

that not every mere allegation of a federal question will

suffice to give jurisdiction and this Court will not under-

take to review a case where the federal question has been

settled by prior decisions of this Court. Equitable Life

Assurance Society v. Brown, 187 U.S. 308, 311, 314-15

(1902); Milheim v. Moffatt Tunnel Improvement District,

262 U.S. 710, 717 (1923).

The dispositive issue in this case was one solely of

Tennessee law, t.e., whether the purported appointment

of a clerk and master of a chancery court was valid. That

issue was fully resolved by a final judgment entered by

the Supreme Court of Tennessee on May 7, 1984. In re

Appointment of Clerk & Master for Sevier County, 670

S.W.2d 215 (Tenn. 1984), rehearing denied, 1984. That

decision of necessity also determined the validity of the

procedures followed at the trial court level (Petitioner’s

“main goal” (Petition, p. 21)). The only hint of a fed-

eral question raised at any stage below was the lack of a

hearing prior to the order of the state trial judge ap-

pointing a new clerk (Petition, pp. 22-23).

oo

3

Petitioner was in fact accorded a full evidentiary

hearing on the merits (Petition, pp. 11-12, 22, B-5 to B-8).

Exhibits were received and the trial judge explicitly in-

vited both parties to introduce any other proof either

party desired (Id., p. 22). That hearing fully satisfied

the requiremer.ts of the Due Process Clause. Due process

of law is afforded litigants if they have an opportunity to

be heard at any time before final judgment is entered.

Ewing v. Mytinger &€ Casselberry, Inc., 339 U.S. 594

(1950); Wiison v. Standefer, 184 U.S. 399 (1902).

4.

—

BRIEF IN OPPOSITION TO PETITION

Where, as here, only property rights are involved

(Petition, pp. 23-24), the mere postponement of judicial

inquiry is not a denial of due process if the opportunity

given for the ultimate judicial determination is adequate.

Mitchell v. W. T. Grent Co., 416 U.S. 600 (1974); Phillips

v. Commissioner, 283 U.S. 589 (1931).

Thus the “federal question” is “so wanting in sub-

stance as not to need further argument.” Milheim v.

Moffatt Tunnel Improvement District, 262 U.S. 710 (1923).

“Mootness”’

The gravamen cf Petitioner’s action below was to

seek reinstatement as clerk and master of the chancery

court (Appendix B to Petition). Under her theory of the

ease her appointment of June 1, 1978 began a six-year

term (Petition, p. 19). Thus, even under her theory, her

term would have expired May 31, 1984. Reinstatement is

no longer available as a remedy. The only money dam-

4

ages requested were “her accrued emoluments of office

since her removal.” (Petition, p. 11). The Tennessee Su-

preme Court necessarily determined that since her term

had expired, there were no such “accrued emoluments of

office” owed to Petitioner. In re Appointment of Clerk

and Master for Sevier County, Tennessee, 670 S.W.2d

215 (Tenn. 1984). Review of the state law issue is not

sought in this Court nor could it be properly sought, since

this Court has no power to revise judgments of state

courts on questions of state law. Henry v. State of Miss.,

379 U.S. 443 (1965); Scripto, Inc. v. Carson, 362 U.S. 207

(1960).

Since reinstatement is no longer available and no

other remedy is sought in this Court, the case is moot.

Franks v. Bowman Transportation Co., Inc., 424 U.S. 747

(1976); DeFunts v. Odegaard, 416 U.S. 312 (1974).

ray

J

CONCLUSION

The Petition for a Writ of Certiorari should be de-

nied.

Respectfully submitted,

Joun A. WALKER, JR.

Counsel of Record

Waker & Wacker, P.C.

715 First American Center

P.O. Box 2774

Knoxville, TN 37901

(615) 523-0700

Attorney for Respondent

CAROLYN P. McMAHAN