Opposition Brief — Gross v. Gross

Supreme Court, U.S.

FILED

9) APR 16 1968

4 IOL, JR.

No. 85-1582 | -o==P* orm

In the Supreme Court of the United States

October Term, 1985

IDA JANE GROSS,

Petitioner,

vs.

THOMAS R. GROSS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Gerorce W. Gross

Counsel of Record

8 East Broad Street

Suite 601

Columbus, Ohio 43215

(614) 221-7831

Counsel for Respondent

EB. L. Mewoewmatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8080

~

LV 4

TABLE OF CONTENTS

AR SE FEAF EERIE cieticcctsmnssiistscnscnssseniecosanssssnsconees

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CONSTITUTIONAL PROVISIONS INVOLVED ..........

STATEMENT OF THE CASE. ...00........22..-c-cscecscscsecsesssesosees

SUMMARY OF ARGUMENT ...002......2n.c.ccccccscscsnsesssersssesees

ARGUMENT:

I. Neither the Constitution nor laws of the

United States vests in petitioner any right to

have her suit reviewed on Writ of Certiorari

I-A. A Federal District Court lacks subject mat-

ter jurisdiction to review a decision of the

ee RO a ne

I-B. This action is barred by the doctrine of res

SIE (ilalsiisuissidisassdiotedieniccdsadbeaiidneniamenanbeeiinis

EPRI eccencscteeccininscosnenee SIRE aioe Ne Te OE .

CERTIFICATE OF SERVICE |... senses eee

TABLE OF AUTHORITIES

Cases

Allen v. McCurry, 449 U.S. 90, 103-04 (1980) .............. 6

Beck v. Washington, 369 U.S. 541, 554-55 (1962 .......... 5

District of Columbia Court of Appeals v. Feldman,

460 US. 463, GBB-GG (IGUB) cecteceictsstcinntcsnmatttincicsmisiiines 5

Federated Department Stores v. Moitie, 452 U.S. 394,

BOB (IDB) cceccccssrincniscetncestninieintniianaammanaamaaanadaalie 6

Gryger v. Burke, 334 U.S. 729, 731 (1948) ................---- 5

Layne & Bowler Corp. v. Western Wells Works, Inc.,

351 US. 307, TBB (IGGB) ccnnieecmatnatininnine 4

Migra v. Warren City School District Board of Educa-

OR, cc WN cccticls , 104 S. Ct. 892, 894 (1984) ........ 6

Rice v. Sioux City Menard Park Cemetery, Inc.,

340 US. TO (1GGB) nninieeccsimmiciemenaeanen 3,4

Other Authorities

Rule 17.1(b), (c), United States Supreme Court Rules 1

Sepramne Cotert TG BG cccncnccessnnusisctsienintnaiiidnumaiaaons 4

28 U.S.C. Section 1257 ................. ccsmalciabiateaneeaa ata 6

2B UGC. Gactiom SIGE CE) cccecnssssnssissuissteasaineninicanns 1

4 UBC. Sectham TD csccnetinsncmianinnes 6

Constitutional Citations

Fifth Amendment, United States Constitution .............. 1,3

Fourteenth Amendment, United States Constitution ....1, 2, 3

No. 85-1582

In the Supreme Court of the United States

October Term, 1985

IDA JANE GROSS,

Petitioner,

VS.

THOMAS R. GROSS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

JURISDICTION

The Ohio Supreme Court’s sua sponte refusal to grant

jurisdiction over Petitioner’s appeal was entered herein

on December 11, 1985, and this petition for a Writ of

Certiorari was filed within ninety (90) days following

entry of that judgment. The jurisdiction of this Court

is invoked under 28 U.S.C. Sec. 2101(c) and Rule 17.1(b),

(c), United States Supreme Court Rules.

CONSTITUTIONAL PROVISIONS INVOLVED

A. Fifth Amendment of the United States Constitu-

tion: “No person shall be... deprived of life, liberty,

or property, without due process of law... .”

B. Fourteenth Amendment to the United States Con-

stitution: “... nor shall any State deprive any person

of life, liberty, or property, without due process of law. . .”

2

C. Fourteenth Amendment to the United States Con-

stitution: “No State shall... deny any person within

its jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

The operative facts of this case are not in dispute.

Respondent, Thomas R. Gross, and Petitioner, Ida Jane

Gross, were married on September 17, 1968. This being

the second marriage for both, it was deemed appropriate

to execute an antenuptial agreement.

In 1981, the Petitioner-Wife filed for a divorce, and

in that year, a divorce was granted to her on the grounds

of gross neglect of duty, and inter alia, the Court approved

the antenuptial agreement previously entered into by the

parties.

From that decision, an appeal was taken to the Court

of Appeals, Tenth Judicial District, Franklin County, Ohio,

where, in a two-to-one decision, the Court of Appeals

reversed the trial court, as it pertained to the validity

of the antenuptial agreement. That opinion was rendered

in Case No. 82AP-741, on February 10, 1983.

An appeal was then taken to the Supreme Court of

Ohio in Case No. 83-564, wherein the Court of Appeals

was reversed and the antenuptial agreement was validated,

however, the case was remanded to the trial court for

a review and modification of the alimony order.

This mandate was carried out by the trial court, and

an appeal was once again taken to the Court of Appeals

which was denied. An appeal was taken by the Petitioner-

Wife to the Supreme Court of Ohio who refused to rehear

the matter.

SUMMARY OF ARGUMENT

1. Neither the Constitution nor laws of the United

States grants Petitioner a right to review on a Writ of

Certiorari. This Court traditionally has demanded a dem-

onstration of the existence of unresolved federal questions

of sufficient scope and impact to justify an exercise of

its discretionary jurisdiction. Rice v. Sioux City Memorial

Park Cemetery, Inc., 349 U.S. 70 (1955).

Petitioner’s suit, which seeks nothing more than fed-

eral court review of a state court interpretation of state

law, is bereft of federal issues. Even if federal issues

were present this action is so unusual and episodic in

nature that review by this Court would not result in

resolution of important questions of federal law.

2. In seeking reversal, Petitioner invites this Court

to depart from prior interpretations of the Fifth and Four-

teenth Amendments of the United States Constitution.

Petitioner attempts to relitigate issues which she

raised or could have raised in the courts below. There-

fore, this action is also barred by the doctrine of res

judicata.

ARGUMENT

I

Neither the Constitution nor Laws of the United States

Vests in Petitioner Any Right to Have Her Suit Re-

viewed on Writ of Certiorari.

Whether to grant review on a Writ of Certiorari is

solely within the discretion of this Court. Sup. Ct. R. 17.

Before a Writ of Certiorari will issue, Petitioner must

demonstrate to the satisfaction of this Court that her case

presents “special and important reasons” deserving atten-

tion. Id. These reasons go “beyond the .. . episodic.”

Rice v. Sioux City Memorial Park Cemetery, Inc., 349

U.S. 70, 74 (1955). They must involve “principles the

settlement of which is of importance to the public, as

distinguished from that of the parties,” or must arise in

the context of a “real and embarrassing conflict of opinion

and authority between the Circuit Courts of Appeals,”

Layne & Bowler Corp. v. Western Wells Works, Inc., 261

U.S. 387, 393 (1923) (quoted in Rice, 349 U.S. at 79),

or between state courts of last resort. Sup. Ct. R. 17.

Viewing this test from the perspective of the instant

controversy, Petitioner could not find herself on shakier

ground. First, the test for issuance of a Writ of Certiorari

presupposes issues of federal concern.

Petitioner alleges no violation of any specific federal

constitutional rights other than in the most conclusitory

terms, to-wit, her unhappiness with the manner in which

the Ohio courts resolved the question of the validity of

an antenuptial agreement.

Even assuming, arguendo, that a misapplication of

state law occurred during Petitioner’s protracted journey

ates ieneniiaeimeanmmeanainaaiiiiedaiaiiill

5

through the Ohio court system, the Equal Protection

Clause and the right of non-deprivation of “life, liberty

and property” does not guarantee freedom from judicial

error. Beck v. Washington, 369 U.S. 541, 554-55 (1962).

Nor may a federal court substitute its own judgment, on

an allegedly erroneous interpretation of state law by a

state court, and then treat its determination that error

occurred as conclusively demonstrating there was a viola-

tion of the Due Process Clause in the state court pro-

ceeding. Gryger v. Burke, 334 U.S. 729, 731 (1948).

Petitioner cannot identify any benefit which will flow

to the public as a result of continued litigation in this

matter. The idiosyncratic nature of this case will make

any decision on the merits rendered by this Court capable

of producing no consequences for future litigants.

Petitioner can hardly argue that any juristic conflict

will be resolved should her request for review be granted.

In short, Petitioner’s case satisfies none of the criteria

established for distinguishing meritorious from meritless

petitions for Writs of Certiorari.

I

A. A Federal District Court Lacks Subject Matter

Jurisdiction to Review a Decision of the Ohio

Supreme Court.

From its inception, Petitioner has attempted to attack

collaterally finality of a state court proceeding. It is well

established that it is without jurisdiction to review, much

less reverse or modify, judicial determination of the state’s

highest court. District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 482-86 (1983). This applies in

spite of allegations that “the state court’s action was un-

6

constitutional.” Id. Review see also 28 U.S.C. Section

1257, and Petitioner has already exhausted her opportu-

nity to present her arguments regarding the lower court’s

handling of the case. Petitioner’s invention of specious

federal issues cannot resuscitate long-resolved questions

of law. She is not entitled to a federal review of state

court action because she is disappointed by the Ohio court’s

response to her plea.

I

B. This Action Is Barred by the Doctrine of Res Judi-

cata.

According to the doctrine of res judicata, a litigant

is barred from “relitigating issues that were or could have

been raised” in an earlier case. Federated Department

Stores v. Mo-tie, 452 U.S. 394, 398 (1981); see also Migra

v. Warren City School District Board of Education,

US. ........, 104 S. Ct. 892, 894 (1984). Res judicata applies

in federal court to bar relitigation of matters adjudicated

in state court, and the doctrine is fully applicable even

to actions under 42 U.S.C. Section 1983. Allen v. McCurry,

449 U.S. 90, 103-04 (1980).

CONCLUSION

For the above reasons, the petition for a Writ of Cer-

tiorari should be denied.

Respectfully submitted,

GEORGE W. GROSS

Counsel of Record

8 East Broad Street

Suite 601

Columbus, Ohio 43215

(614) 221-7831

Counsel for Respondent

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the

Respondent’s Answer Brief. was served upon C. William

Brownfield and William H. Arnold, 140 East Town Street,

Columbus, Ohio 43215, counsel for Appellant, by regular

United States mail, postage prepaid, this 14th day of

April, 1986.

GEORGE W. GROsS

Counsel of Record