Opposition Brief — Weiss v. Wyoming ex rel. Cardine

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JOHN F. GAVIS, CLERG

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 1127

LEO WEISS, Petitioner

v.

STATE OF WYOMING, ez. rel.

G. JOSEPH CARDINE, Respondent

BRIEF FOR RESPONDENT IN OPPOSITION FOR AN

APPLICATION FOR A WRIT OF CERTIORARI

LAWRENCE SPEISER JAMES E. BARRETT

Counsel for Petitioner Attorney General

1424 16th N.W., Room 501 State of Wyoming

Washington, D.C. 20036 210 Capitol Building

Cheyenne, Wyoming 82001

RAYMOND B. WHITAKER JACK SPEIGHT

Of Counsel Assistant Attorney General

Attorney at Law State of Wyoming

150 North Center 210 Capitol Building

Casper, Wyoming 82601 Cheyenne, Wyoming 82001

INDEX

Opinions Below

Jurisdiction

Questions Presented

Constitutional and Statutory Provisions Involved

Statement of Case

Reasons for Denying the Writ

oa ao _ = ee

(1)

Il

CASES CITED

Adler v..Board of Education,

342 U.S. 485, 496 (1951)

Beck v. Washington,

369 U.S. 541, 549 (1962)

Chimel v. California,

U.S. No. 770 (6-23-69)

Lujan v. State,

423 P.2d 388, 390 (Wyo. 1967)

Valerio v. State,

429, P.2d 317, 319 (Wyo. 1967)

Weiss v. State

435 P.2d 280, 281 (Wyo. 1967)

Whitney v. California,

274 U.S. 356, 363 (1926)

OTHER AUTHORITIES

Supreme Court Practice, 4th Edition,

Stern & Gressman

Title 28 U.S.C., See. 1257

SRR Ny REET O TI IAAL BIE SORE SE RN TEI ORY YS AI NR LTTE RE D

Pa es

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 1127

LEO WEISS, Petitioner

v.

STATE OF WYOMING, ez. rel

G. JOSEPH CARDINE, Respondent

BRIEF FOR RESPONDENT IN OPPOSITION FOR AN

APPLICATION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Wyoming Supreme Court

which is the basis for the Application for the Writ of

Certiorari is reproduced in its entirety beginning at

page 19 of Petitioner’s Brief.

JURISDICTION

The jurisdictional requisites relied upon by Peti-

tioner are set forth in his Brief appearing at page 2.

Specific reference is made to Title 28, United States

Code, Section 1257, subsection 3, which specifically

states that the Supreme Court of the United States

may review final judgment or decisions rendered by

the highest court of the state by Writ of Certiorari.

It is the Respondent’s position that the six issues

presented to this Court for review, found in Section

C commencing at page 3 of Petitioner’s Brief, are not

of such a nature as to lend themselves to review by the

United States Supreme Court pursuant to Title 28,

(1)

2

Section 1257, subsection 3. Specifically, issues C(1),

C(2), C(3), C(4), and C(6) are issues that were spe-

cifically reviewed by the Wyoming Supreme Court

and decided upon non-federal grounds. Because of

this, they are not subject to review by this Court at

this time. (See Beck v. Washington, 369 U.S. 541, 549

(1962), also Supreme Court Practice, 4th Edition,

Stern & Gressman, Section 3.25 et seq., p. 116). Each

of the following issues presented to the Wyoming

court were reviewed and decided solely on non-federal

grounds in light of the Wyoming Constitution.

I.

SECTION 6-247, et seqg., WYOMING STAT-

UTES 1957 (CUM. SUPP. 1967) CONTAIN

MORE THAN ONE SUBJECT AND ARE

IN VIOLATION OF SECTION 24, ARTI-

CLE 3, CONSTITUTION OF THE STATE

OF WYOMING.

II.

THE APPELLANT IS GUARANTEED

UNDER THE TERMS OF THE WYO-

MING STATE CONSTITUTION A JURY

TRIAL IN A CONTEMPT PROCEEDING

INITIATED PURSUANT TO SECTION

6-254, WYOMING STATUTES 1957 (CUM.

SUPP. 1967).

ITl.

A CONTEMPT PROCEEDING INITI-

ATED PURSUANT TO SECTION 6-254,

WYOMING STATUTES 1957 (CUM.

—

3

SUPP. 1967), DOES VIOLATE THE

TERMS AND PROVISIONS OF SEC-

TIONS 6 AND 7, ARTICLE 1, CONSTITU-

TION OF THESTATE OF WYOMING, IN

THAT THE APPELLANT WAS DENIED

LIFE, LIBERTY OR PROPERTY WITH-

OUT DUE PROCESS OF LAW, AND

THERE WAS MANIFESTED ABSO-

LUTE AND ARBITRARY POWER OVER

THE LIFE, LIBERTY OR PROPERTY

OF APPELLANT.

IV.

THE APPELLANT WAS DENIED HIS

RIGHT OF DISCOVERY OR OTHER AP-

PROPRIATE PROCEDURES IN THE

CONTEMPT PROCEEDINGS, FURTHER

HE WAS DENIED PROPER NOTICE OF

HEARING AND ALSO WAS DENIED

LIFE, LIBERTY AND PROPERTY

WITHOUT DUE PROCESS OF THE

LAW.

It is clear from these arguments presented to the

Wyoming Supreme Court, when read in conjunction

with its opinion (Petitioner’s Brief, p. 19), that each

is non-federal in nature and is not subject to review

by this Court in a Certiorari petition.

In analyzing issue C(5), which deals with the

seizure of evidence based upon the holding of Chimel v.

California, U.S. No. 770 (6-23-69), it is the Respon-

dent’s position that the highest court in the state must

consider the specific federal question prior to consider-

4

ation by the United States Supreme Court. Adler y,

Board of Education, 342 U.S. 485, 496 (1951) and

Whitney v. California, 274 U.S. 356, 363 (1926).

(See also Supreme Court Practice, 4th Edition, Stern

& Gressman, Section 3.30, p. 131.)

This search and seizure question raised in light of

Chimel was not properly presented to the Wyoming

Supreme Court for review even though raised at the

trial court level. Not having had an opportunity to

review the record filed with this court, the state is

at a handicap to determine whether or not the Briefs

of the Petitioner and Respondent which were pre-

sented to the Wyoming Supreme Court have been in-

corporated for the Court’s review; however, these

Briefs clearly indicate that this search and seizure

question now urged upon this Court was not presented

to the Wyoming court for review. Based upon the

Wyoming cases of Valerio v. State, 429 P.2d 317, 319

(Wyo. 1967) and Lujan v. State, 423 P.2d 388, 390

(Wyo. 1967), it is clear that issues raised at the trial

level will not be reviewed by the Wyoming Supreme

Court unless briefed and argued by counsel.

Further, it is the Respondent’s position that since

Chimel has not been held retroactive by this Court, it

has no application in this case since the questioned ar-

rest and scarch are pre-Chimel in nature, occurring in

December of 1967.

The questions presented for consideration by this

Court in contemplation of the issuance of the Writ of

Certiorari are stated at pages 3 and 4 of Petitioner’s

Brief. It is clear in reading these statements in con-

IEP OR LOT 0) DILL EM Be WI he

5

nection with the Wyoming Supreme Court decision

j appearing at page 19 of the Petitioner’s Brief that the

grounds for issuance of the Writ do not have merit in

that they are not properly reviewable issues presented

to this Court as set out in the Respondent’s Juris-

dictional claims.

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED

The Respondent is somewhat at a loss to state

with certainty as to whether or not the proper and

pertinent United States Constitutional citations have

been incorporated in the Petitioner’s Brief.

STATEMENT OF CASE

The Petitioner’s Statement of Case is found in

Section E commencing at page 12 of his Brief. It is

the Respondent’s feeling that the Court needs addi-

tional facts upon which to better analyze the proceed-

ings that are now before this Court for review. There-

fore, in fairness to the Court, the following chrono-

logical facts, times and record references are set forth.

It is noted that the record citations referred to relate

to page numbers that were used in the record presented

to the Wyoming Supreme Court for its review.

1, This case is an appeal from a contempt order

issued by the Wyoming District Court of the Seventh

Judicial District on April 5, 1968 (R. 181). A con-

tempt proceeding heard before the court April 2, 1968

(R. 400 et seq.) arose from a deliberate viclation of an

injunction entered by the court on March 8, 1968 (R.

56).

2. Prior to entering the injunction which Peti-

tioner violated, the County and Prosecuting Attorney

6

for Natrona County, Wyoming, under oath, filed a

Petition for Order of Abatement against Petitioner

on December 18, 1967 (R. 4). This proceeding was

initiated under the provisions of Sections 6-247

through 6-255, Wyoming Statutes 1957 (Cum. Supp.

1967). In the Petition for Order of Abatement, it is

alleged that the Petitioner, who is the record title

owner of certain described property, had maintained,

used and occupied such premises for the purposes of

prostitution and illegal sale of intoxicating liquor.

Such activities constitute a nuisance under the terms

of the statute and should be enjoined (R. 4).

3. Summons and Petition for Abatement were

served upon Petitioner (R. 7) pursuant to the Wyo-

ming Supreme Court holding in Weiss v. State,

(Wyo.) 435 P.2d 280, 281 (1967). A hearing was held

and a temporary injunction was issued J anuary 12,

1968 (R. 27) enjoining the Petitioner from main-

taining a house of prostitution and selling liquor with-

out a license on the particularly-described premises.

Such injunction was served upon Petitioner J anuary

12, 1968 (R. 28).

4. An untimely answer was filed by Petitioner on

January 15, 1968 (R. 32), and due to such untimely

filing of the answer, the Clerk of the District Court

entered a default on January 16, 1968 (R. 31).

5. This entry of default was set aside by order of

the court upon good cause shown on January 29, 1968

(R. 48).

6. A Proceedings by Information alleging viola-

tion of the temporary injunction by Petitioner was

filed February 2, 1968 (R. 44). Based upox the Pro-

7

ceedings by Information, a warrant for the arrest of

Petitioner was issued February 2, 1968 (R. 48).

7. After hearing in open court on February 14,

1968, the court found the Petitioner guilty of violation

of the temporary injunction issued January 12, 1968

(R. 53-54). As a result, Judgment and Decree was

rendered on March 8, 1968, finding the Petitioner in

contempt for violating the temporary injunction in

that he did, subsequent to the injunction, maintain and

use the certain described premises for the illegal sale

of liquor without a license or for the purpose of prosti-

tution. The Petitioner was further enjoined from

maintaining, using or permitting to be used the de-

scribed premises for the illegal sale of liquor without

a license, or for the purpose of prostitution, either di-

rectly or indirectly. (R. 56, 57, 58)

8. Based upon this Judgment and Deerce, the

Petitioner filed Notice of Appeal to the Wyoming Su-

preme Court on March 8, 1968 (R. 60).

9. By order of the Wyoming Supreme Court on

September 20, 1968, the Appeal filed was dismissed

(Case File No. 3706).

10. A second Proceedings by Information was

filed by the County and Prosecuting Attorney on

March 11, 1968 (R. 64) alleging the Petitioner had vio-

lated the terms and conditions of the Judgment and

Decree entered by the court on March 8, 1968. Service

was made upon Petitioner on March 11, 1968 (R. 86).

11. An Amended Proceedings by Information was

filed before the court against Petitioner on March 21,

1968 (R. 141, 142, 143) and the Amended Proceedings

>. Be ae Pe

8

by Information was served on March 22, 1968 (R.

156) .

12. A contempt trial was held before the court on

April 2, 1968 (R. 400 et seq.) based on the alleged

contempt by Petitioner of the injunction issued by the

court. The court found, on April 5, 1968 (R. 181,

182), that Petitioner had deliberately, flagrantly, and

knowingly violated the injunction of the court on

March 8, 1968, and the court ruled that Petitioner be

fined the sum of $1,000 and sentenced to a term of 90

days; and further, that the Information filed in the

case against Petitioner was sufficient for the purpose

of the action; and that any motions Petitioner may

have made with respect to such Information were

overruled.

13. As a result of the contempt finding, the Peti-

tioner filed a Notice of Appeal with the Wyoming

Supreme Court on April 8, 1968 (R. 186).

14. As a result of the Notice of Appeal filed with

the Wyoming Supreme Court, the court issued a de-

cision on June 29, 1969, which is found at page 19 of

Petitioner’s Brief.

15. The basis of the Petition for Certiorari before

this Court is an outgrowth of decision of the Wyoming

Supreme Court upholding the contempt order of the

District Court.

16. Petitioner then filed a petition for rehearing

before the Wyoming Supreme Court, which petition

was denied on September 19, 1969.

17. The Wyoming Supreme Court opinion and

mandate were returned to the Wyoming District Court

on October 22, 1969.

9

18. Pursuant to Rule 22, Rules of the United

States Supreme Court, the Petitioner had ninety days

or up to January 20, 1970, to file appropriate petition,

record and brief with this Court to invoke its juris-

diction. However, on the ninety-first day, J anuary

21, 1970, Associate Justice White entered an order

extending time in which to do so for the benefit of

Petitioner to February 4, 1970.

REASONS FOR DENYING THE WRIT

Contrary to Petitioner’s statement that the Writ

should be allowed pursuant to Rule 19 of the Rules of

the United States Supreme Court, it does not appear

that the highest court of the State of Wyoming has so

far departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this

Court’s powers of supervision. It is clear in this case

that the state Supreme Court decision was based on

non-federal grounds and that such grounds are ade-

quate to support the court’s decision. Based upon this,

coupled with the jurisdictional challenges raised, the

Respondent submits that a Writ of Certiorari should

not be issued to review the judgment and order of the

Wyoming Supreme Court in this case.

Respectfully submitted,

JAMES E. BARRETT

Attorney General

State of Wyoming

210 Capitol Building

Cheyenne, Wyoming

JACK SPEIGHT

Assistant Attorney General

State of Wyoming

210 Capitol Building

Cheyenne, Wyoming

Attorneys for Respondent