Opposition Brief — Schiller v. Lefkowitz

LIBRARY...

In THE

+ Supreme Court of the United States —

: Ocroser Term, 1966

No. 540

‘ CHARLES SCHILLER,

_ Petitioner,

‘Vv. =o ae

CHARLES LEFKOWITZ, :

Ow Permoy Fon A Warr or Canrionant 10 me Corr

or APPEALS Or THE STATE OF MARYLAND.

r) *

‘

‘

. .

”

INDEX

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ooo... Rh eepdian dons 7% 1

Ne SI inn acne, f 2

STATEMENT OF FACTS. cece Peek 4

_ Reasons To.DENY THE WRIT.............. HO Seadenlirely a |

CONCLUSION |. ; eg REO nn DONNA re RTE EEN a, . —

TABLE OF CITATIONS

Statutes and Rules

_ Constitution of United States: 7 .

DI ois tact tase en eter Daf Sc late ea 10,11

Constitution of Maryland, Declaration of Rights:

Article 96: ...cccccccccscccscecsscscecssccleeccessscrsessscesseesssie. 2

Maryland Rules of Procedure:

8 CC) mer ©

IONE schcxpsriisicgrictedgearasicctios werner eter ie

RS 2 hee oe 3,8

NT ag ee a cite gee kage ee 3

— ! Cases |

“Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct.

; 1758, 12 L. Ed. 2d 977 (1964)............... CR:

Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822.0000. 10, 11

Great Northern Ry. Co. v. Sunburst Oil & Refining

Co.,- 287 U.S. 388.............:5... ER ee OT 13

ss PAGE

Herb v. Pitcairn, 324 U.S. 117, 65 S. Ct. 459.000.000.000... 10, 11

Johnson v. Zerbst, SN I I i aisad hen ncoacncdictiorcusnck 12

Johnson v. State of New Jef’sey, 86 S. Ct. 1772 (1966) >.

Linkletter v. Walker, 85 S. Ct. 1731, 381 U.S.618..... 13

Miranda v. State of Arizona, 383 U. S......, 8S. Ct.

BR eee re er ED 12,13

Schowgurow v. State, 240 Md. 121, 213 A. 2d

Rk, SE nee ee, 6, 8, 10, 11, 12, 13

Smith v. State, 240 Md. 480...4.....02..00 eee 9

Yakus v. United States, 321 U.S. 414, 64S. Ct. 660, 88

Bi Sec cet rccscusseneiacaoastanccimadeiiaes mcaie 9

In THE *

Supreme Court of the United States

OcToBER TERM, 1966

No. 540

CHARLES SCHILLER,

. Petitioner,

Vv.

CHARLES LEFKOWITZ,

_ Respondent.

On Petition For A Writ or CERTIORARI TO THE COURT

or APPEALS OF THE STATE OF MARYLAND

7

RESPONDENT'S BRIEF IN OPPOSITION

The Respondent prays that the Petition for Writ of Cer-

tiorari to review the judgment of the Court of Appeals" of

Maryland decided on sat 11, 1966 be denied.

QUESTIONS PRESENTED |

1. Should this Court grant a further review where the

Petitioner has waived the fundamental constitutional right

he now asserts.

2. Should this Court grant certiorari where the Court

of Appeals of Maryland afforded a proper and complete

appellate review on independent -and adequate state

ee eee

pon 2

grounds notwithstanding the co-presence of federal

grounds.

3. Should this Court grant certiorari where at most it

could render an advisory opinion or pass on a moot question.

4. Should this Court grant certiorari where a state court

has decided in a civil case on the retroactive application of

a legal principle enunciated in a decision of first impression.

STATUTES INVOLVED

Article 36, Constitution of Maryland, Declaration of

Rights. |

“That as it: is the duty of. every man to worship God

in such manner as he thinks most acceptable to Him, ©

‘all persons are equally entitled to protection in their

religious liberty; wherefore,.no person ought by any

law to be molested in his person or estate, on. account

of his religious persuasion, or profession, or for his

religious practice, unless, under the color of religion,

he shall disturb the good order, peace or safety of the

‘State, or shall infringe the laws of morality, or injure

others in their natural, civil or religious rights; nor

ought any person to be compelled to frequent, or main-

tain, or contribute, unless on contract, to maintain, any

place of worship, or any ministry; nor shall any per-

son, otherwise competent, be deemed incompetent as

a witness, or juror, on account of his religious belief;

provided, he believes in the existence of God, and that

’ under His dispensation such person will be held mor-.

ally accountable for his acts, and be rewarded or pun-

ished therefor either in ‘this world or in the world to . |

come.’

Rule 501(a), Maryland Rules of Procedure:

“To Further Convenience or Avoid Prejudice. The

court in furtherance of convenience or to avoid preju-

dice may order a separate trial of any claim, counter-

3.

claim, cross-claim, or third-party claim, or of any sep-

arate issue, or any number of claims, counterclaims,

cross-claims, third-party claims or issues.” ,

Rule 543(c), Maryland Rules of Procedure: -

“Challenge — To Array or Poll. This Rule shall not

affect the right of any person to challenge for cause,

in the manner allowed by the law, the array or polls _

of any jury panel,” ~~

Rule 545, Maryland Rules of Procedure:

“Trial by Jury — Effect of Election. '

“When trial by jury has been elected by any party, ae

the action, including all claims whether asserted by ‘i

way of counterclaim, cross-claim, or third-party claim,

as to all parties and as to all issues triable of right by a

jury, shall be designated upon the-docket as a jury .

action and so tried.” . :

Rule 885, Maryland Rules of Procedure: ay

-. “Scope of Review — Limited to Questions Decid

by Lower Court. This Court will not ordinarily decide

any point or question which does not plainly appear by

the record to have been tried and decided by the lower

court; but where a point or question of law was pre-

sented to the lower court and a decision of such point

or question of law by this Court is necessary or desir-

able for the guidance of the lower court or to avoid the

expense and delay of another appeal to this Court,

such point or question of law may be decided by this

. Court even though not decided by the lower court.

Where jurisdiction cannot be conferred on the Court

by waiver or consent of the parties, a question as to

the jurisdiction of the lower court may be raised and °

decided in this Court whether or not raised and de-

cided in the lower court.” | ar ,

4

STATEMENT OF FACTS -

Growing out of a collision between two automobiles in

Montgomery County, Maryland, on December 29, 1962, the

Petitioner, as plaintiff, hereinafter referred to as Petitioner,

on October 28, 1963, filed a Declaration in the Circuit Court

for Montgomery County, State of Maryland, claiming dam-

ages as the result of a collision. The Respondent herein

was named as defendant and will hereinafter be designated

as Respondent. In filing the Declaration the Petitioner af-

firmatively elected to trial by jury. On November 13, 1963,

the Respondent, through his attorney, —_— issue by filing

a general issue plea.

On November 2, 1964 the cause of action came on for trial

with Judge Kathryn J. Shook presiding. The jury was duly

sworn to try the i issues. —

The attorney then representing the Petitioner and the

attorney then and now representing the Respondent, before

making their opening statements, were invited by the

Presiding Judge to approach the bench for a conference —

outside the hearing of the jury. At this bench conference

it was suggested by ‘the judge that the case should proceed

on issues; first as to liability, and if the issue of liability

were decided by the jury in favor of the Petitioner then

as to damages. Counsel for the Petitioner and the Respond-

_ ent both agreed and consented to this procedure. Where-

upon, the judge charged the jury as follows:

“Now, ladies and gentlemen of the jury, before I

ask counsel to give their opening statements I will say

to you that this case will be tried on the issues, ‘the

‘first being the issue of liability. There will be no

testimony given to you concerning. damages until you

have determined whether there is liability or there i is

not liability.

“So, gentlemen, you may address the jury.”

7 5

After a complete trial on the issue of liability under the

instructions of .the Court, the jury: qahenee a verdict for

the defendant. a

On November 5, 1964, the i Putthicnes ncaa his attor-

ney, filed a motion for new trial. This motion came on for

_ oral argument on February 5, 1965. The motion was denied

and judgment was thereupon entered in faveg of the Re-

_ spondent for costs. |

On February 24, 1965, the idteuniiay who -had. adios

the Petitioner in the aforesaid proceedings withdrew his

appearance. The attorneys now representing the Peti-

tioner then entered their appearance. On the same date,

through these attorneys, the Petitioner noted an appeal to. .

the Court of. naan: of Maryland. The sole question pre-

sented was:

“Was the trial Court's: bifurcation of the issue of

liability from the issue of damages, in a civil trial by

a jury of an automobile negligence case, justified by

the Maryland Rules of Procedure and consistent _

the Maryland Constitution?”

Under the rules of the Court of Appeals.of Maryland the

Respondent, through his attorney, filed a = brief,

stating: .

“The trial of this case on culinnite | issues, first as es: 2

the issue of-liability and later, if the plaintiff received

a verdict as to the issue of damages, with the full

approval of the Court —_ all parties, was proper and |

conclusive.

“The question raised by this appeal was never raised

and passed upon by the Lower Court and a review of

the question on his appeal is precluded.”

While this appeal was pending subject to oral uineae,

the Maryland Court of Appeals on October 11, 1965, filed

eae

its opinion i in Schowgurow v. State, 240 Md. 121, 213 A. 2d

‘475. In its opinion the Court of Appeals of Maryland stated

(pg.482): °

“Under the decision of the Supreme Court in Tor-

caso, we are constrained to hold that the provisions of

‘the Maryland Constitution requiring demonstration of

belief in God as a qualification for service as ‘a grand

or petit juror are in violation of the Fourteenth

Amendment, and that any requirement of an oath as

to such belief, or inquiry of prospective jurors, oral

or written, as to whether they believe in a ‘Supreme

Being, is unconstitutional. * * *

“We believe- that the proper ‘administration of .

justice requires, and we accordingly hold, that the

legal principle enunciated in this case ‘shall not apply

retroactively, except for convictions which have not

_ become final before rendition of this suet

The Petitioner then asked leave of the Court of Appeals

of Maryland to amend his original brief to include relief

by virtue of Schowgurow. In the amended brief. the ques’

tion presented was:

“Was the Appellant denewed of. ‘rights quédantecd

to him by the 14th Amendment of the Federal Con-

, stitution or the Maryland Declaration of Rights, when

his civil cause of action. was heard and decided by a

jury whose members were required as a condition

of their service to swear to a belief i in God.” ©

The appeal and amended ‘uae’ then came on sie oral

. argument. On May 11,'1966 the Maryland Court of Appeals

filed its opinion, which is designated as Petitioner’s Ap-

pendix A (1-12).

_ REASONS TO DENY THE WRIT |

Respondent urges that, this writ be denied for the fol-

. lowing reasons:

1. This Court ‘should not grant certiorari where the

Petitioner has not only ‘waived the fundamental constitu-

tional right he now asserts but has failed to assert affirma-

tively violation of any constitutional right. °

2. The Petitioner was afforded a proper and complete

appellate review by the Court of Appeals of Maryland on,

independent and adequate state grounds notwithstanding

the co-presence of a suggested federal ground and for this

reason certiorari should not be granted. :

3. Certiorari should not be granted for the reason that

if granted this Court could do nothing more: than render

an advisory opinion or pass on a moot question. ©

_ -&% Certiorari should be denied where a state court has ”

decided in a civil case on the retroactive application of

a legal principle enunciated in a decision in a criminal case .

of first impression.

1. This Court Should Not Grant Certiorari Where the .

Petitioner Has Not Only Waived the Fundamental

Constitutional Right He Now Asserts But Has Failed

To Assert Affirmatively Violation Of Any Constitu- |

tional Right. ‘"

In Johnson v. Zerbst, 304 US. 458 (1938), at page 464, _

this Court defined a waiver as “an intentional relinquish-

ment or abandonment of a known right or privilege. ” The

Petitioner selected the forum in which he desired to litigate

his cause of action. The Respondent had no alternative

except to defend in the forum selected by the Petitioner.

A jury trial was affirmatively elected by the Petitioner in

conformity with Rule 545 of the Maryland Rules of Proce- -

+ dure. He did not then raise any question respecting any

violation of the, Maryland Bill of Rights. He was duly

represented by an attorney of his selection. At no time

in this entire proceeding * has the Petitioner suggested in-

. competency of his attorney nor has he made any suggestion

that he was not aware of the. actions of his attorney to

. further his cause of action in the state court. No claim is

made that any membér of the jury was not competent and

qualified { to serve or was in any respect an improper person.

In-conformity with standards then existing the jurors were

validly selected: ‘The Petitioner would now have this Court

believe that he is entitled to.relief by virtue of the findings

of the Court of Appeals of Maryland in Schowgurow. But

‘it is not ever suggested that either he or tne Respondent

were of a religious class which’in itself would bring them

within the. finding of the court in Schowgurow. In addi-

- tion, there. is no statement or even, suggestion. by the Peti-

tioner that he was ‘prejudiced in any way by the selection

of the-jury which returned a verdict adversely to him

‘and in favor of the Respondent.. The'sum total of his

_ request for certiorari is that the Maryland Court of Appeals

having held unconstitutional the indictment of a member

of the ‘Buddhist faith, charged with: a criminal offense,

should ‘automatically include the Petitioner without any

showing whatsoever that he would come within the class

suggested in Schowgurow. The defendant in Schowgurow

asserted "his claim for relief not only to the indictment but

to the jury itself.

‘Under Rule 543(c) of the Maryland Rules of Procedure

' the Petitioner could have polled the jury. The Petitioner

did not inquire of any juror on voir dire whether he or

she was a believér or a nonbeliever. There is no‘ proof

whatsoever that the constitutional rights of the Petitioner

were ever violated. If there might be a violation, he re-

mained silent at all times, including the question which

he’presented originally in his appeal based on a violation

of the Maryland Constitution ‘but giving no Article or

Section which would support the violation. ~~ ;

“No procedural’ principle is more familiar to this —

court than that a constitutional right can be forfeited

in criminal as well as civil cases by. failure to make

timely assertion of the right before a tribunal having

_ jurisdiction to determine it.” Yakus v. United States,’

321 US. 414, 64 S. Ct. 660, 88 L. Ed. 834, at 677.

In this instance the proper tribunal would have been the

Circuit Court for Montgomery County, Maryland.

In the. State ned wang even in a criminal case a

constitutional question can be waived. Smith v. ‘State, 240

Md. at 480, and cases therein cited.

2. The Petitioner Was Afforded A Proper and Complete

Appellate Review by the Court of Appeals of Mary-

land on Independent and Adequate State Grounds

Notwithstanding the Co-Presence of A Suggested

Federal Ground and For This Reason Certiorari

Should Not Be Granted.

The Petitioner having consented to the application of

Rule 501(a), Maryland Rules of Procedure, it would be

obvious that he would not be entitled to relief by the Court

of Appeals of Maryland in the event of an adverse verdict

by the jury. This was recognized by the tioner because

at no time has he attempted to raise a question on this

' point alone. The Maryland Court of Appeals would have

no alternative except to sustain the verdict and judgment

entered in the Circuit Court. It would, therefore, be neces-

sary to attempt to secure appellate relief on some ground

10

not related to the rules which prevented appellate relief

under the statutes of Maryland. To overcome this the

- Petitioner’s original first thrust was directed to the Court

of Appeals on the theory that there had been a general

violation of his rights‘under the State Constitution. This

would have been the posture of the case on appeal had

the Court of Appeals of Maryland not filed its decision

_ in Schowgurow while the Petitioner’s appeal was pending:

The Petitioner then amended his appeal to assert a viola-

tion under Article Fourteen of the Constitution of the

United States. It is submitted that on the independent and

adequate state grounds alone the Maryland Court of Ap-

peals could afford a complete and proper review. without

regard to federal grounds which had come into the appeal.

by reason of an amendment to the original appeal by

' Petitioner. If there could be complete and adequate state

grounds ‘to justify the opinion of the Court of Appeals of

Maryland, this Court would be required to deny the peti-

tion for writ of certiorari. As stated in Herb v. Pitcairn,

_ 324 US. 117,-65 S. Ct. 459: . ; .

“This Court from the time of its foundation has

adhered to the principle that it will.not review judg-

ments of state courts that rest on adequate and inde-

pendent state see acs ” Citing cases. .

In the landmark case of Fay v. Noia, 372 U.S. 391, 83

S. Ct. 822, this Court was careful to define its limitations

to interfere with the jurisdiction of a state court (pg, 843) :

“It is a familiar principle that this Court will decline

to review state court judgments which rest on inde-

pendent and adequate state grounds, notwithstanding

the co-presence of federal groun .

11

3.. Should This Court Grant Certiorari Where At Most

It Could Render An Advisory Opinion or —

Pass On A Moot Question. oe

Without the constitutional question which was injected

into the appeal to the Court of Appeals of Maryland, there

" could be no possible relief to the Petitioner by this Court

inasmuch as it would be a decision based on state law not

‘subject to review. Inasmuch, however, as the Petitioner

‘in his amended appeal asserted an alleged violation of

Article Fourteen of the Constitution of the United States,

it became incumbent upon the court to pass on the question.

‘In doing so, however, the court held that the Petitioner

was not entitled to relief because of failure to comply with

Rule 501(a), Maryland Rules of Procedure. Therefore, this

Court would be precluded from reviewing the judgment of

- the Court of Appeals of Maryland in this respect. The pre-

cise constitutional question raised was whether this Peti-

_tioner w4uld be entitled to reversal on the theory that by

. Teason of the opinion in Schowgurow there would be retro- ©

active application in the Petitioner’s civil actién. The Court

of Appeals of Maryland decided that there would be no

retroactive application. Should certiorari be granted in

this case this Court-could do nothing more than render an

_ advisory opinion as to this phase of the appeal without the

power to require the Court of Appeals of Maryland to

’ change its opinion inasmuch as the opinion was based on

independent and adequate state law. See Herb v. Pitcairn,

supra, and Fay v. Noia, supra.

12

4. Certiorari Should Be Denied Where A State Court

Has Decided In A Civil Case on the Retroactive Ap-

plication of A Legal Principle Enunciated in a Crim-

inal Case of First Impression. t.

The Court of Appeals of Maryland _— that Schow-

_ gurow would be a landmark decision, anticipated its appli-

cation retroactively by stating (p. 482):

“We believe that the proper administration of fuaties

requires, and we accordingly hold, that the legal prin-

ciple enunciated in this case shall not apply retroac-.

tively, except for convictions which have not become

final before rendition of this opinion.”

It would be reasonable to assume that the court would

desire to confine its retroactive application to criminal

cases without mention of civil cases. It must be conceded,

however, that prospectively the ruling would apply to both

criminal and civil cases. The application of the Petitioner

to amend his appeal presented the court with an oppor-

tunity to rule_on the retroactivity of Schowgurow as ap-

plied to civ . With the civil appeal pending, a decision

would preclude direct appeals from the different circuit —

courts of the state.

This Court was confronted with a somewhat analogous

situation when it decided Johnson v. State of New Jersey,

86 S. Ct. 1772 (1966). Prior to Johnson, this Court had filed

‘two landmark. decisions, Escobedo v. State of Illinois, 378

U.S. 478, 84S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and Miranda

v. State of Arizona, 383 U.S. ... , 86 S. Ct: 1602, 16 L. Ed.

2d ..... The question in the Johnson case was the retro-

activity of each of these decisions. It was held (p. 1775):

“We hold that Escobedo affects only those cases in

which the trial began after June 22, 1964, the date of

‘that decision. We hold further that Miranda applies

a

13

only to cases in which the trial began after the date of

our decision one week ago. The convictions assailed

shere were obtained at trials completed long before

Escobedo and Miranda were rendered, and the rulings

_ - in those cases are therefore iriapplicable to the present

proceedings.” ;

The Petitioner is now requesting this Court to grant his

petition for writ of certiorari asking the Court of Appeals .

of Maryland to certify its record for review to determine

the correctness of its application of retroactivity to a case

decided by it. It is submitted that just as this Court estab-

lished guidelines for the application of .Escobedo and

Miranda, the Court of Appeals of Maryland could establish

guidelines for the retroactive application of Schowgurow

not only in criminal cases but in civil cases.

In Great Northern Ry. Co. v. Sunburst Oil & Refining

_Co., 287 U.S. 358, this Court stated (p. 148):

“* * * This is a case where a court has refused to

make its ruling retroactive, and the novel stand is taken

that the Constitution of the United States is infringed

by the refusal.

“We think the Federal Constitution has no voice

upon the subject. A state in defining the limits of ad-

herence to precedent may make a choice for itself be-

tween the principle of forward operation and that of

relation backward.” :

This principle was restated in Linkletter v. Walker, 85S.

Ct. 1731 (1965), 381 US. 618,

CONCLUSION

Growing out of a collision between two automobiles, the

Petitioner filed suit and elected that the issues be tried by

a jury. He had his day in court. The jury found adversely

to his interest. This is a result which either a plaintiff or

14

a deferidant can expect in any civil suit. It is only natural

‘that the party receiving an adverse verdict would desire

a new trial. This has been refused to the Petitioner by the

court in which the case was tried’ by a jury elected by the

Petitioner. This judgment has been affirmed by the Court

of Appeals of Maryland on state grounds. The Court of

Appeals of Maryland also refused retroactive relief. This

Court is being asked- to grant the retroactive relief. which

~ at most would be a new trial on the novel stand that the

‘Constitution of the United States is infringed. It is respect- —

fully submitted that this case is not an appropriate case for

the exercise of this Court’s discretionary jurisdiction and

that this petition for writ of certiorari should be denied. -

Respgctfully submitted,

JouN M. McInerney,

Perpetual Building,

‘Bethesda, Maryland,

WILBERT McINERNEY,

One Thousand Connecticut Avenue,

Washington, D. C.,

- Ricuarp B. LatHaM,

Perpetual Building,

Bethesda, Maryland,

EDWARD B. LAYNE, JR.,

Perpetual Building,

Bethesda, Maryland,

Attorneys for Respondent.