Brief for the Respondents in Opposition — Livingston v. Shelton

, ‘Supreme Court, U. &

fee eS he Ree

FEB 6 1976

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-994

WILLADENE LIVINGSTON,

Petitioner,

v.

FRED SHELTON,

Administrator, Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

AND

MOTION FOR AWARD OF DAMAGES FOR DELAY

On Petition for Writ of Certiorari to the

Supreme Court of the State of Washington

FRED SHELTON, Administrator, D. Gorpon WiILLHITE

Of Counsel errata for Respondent

P.O. Box 333, 190 E. Main 1900 Peoples National Bank

Othello, Washington 99344 Building

Seattle, Washington 98171

CRAFTSMAN & MET Press e@@B SEATTLE, WASHINGTON

i

SUBJECT INDEX fas

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RIE I a es eee 2

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es ce entice rcs BE NE NPT Ak DOTNET 2

E RIEU IN cos ee 3

i 6 Constitutional and Statutory Provisions Involved .......... 4

A ie Ue I ack a 4

Py A Concise Restatement of the Case o0.0..0.0.0......eccecc0e0--. 4

: Federal Questions Raksed 2..0.......--<ccceccccce-cescesoceceressoesoeee-- 7

: Reasons for Not Granting the Writ .2.0....00.000..0..cccseecseeeo0- 10

: Respondent's Answers to Petitioner’ s Reasons for Grant-

OE a sr 13

Further Law and Argument 2200.00.00..0.00.ccccccceccecceecoeesseese- 16

Motion for Award of Damages for Delay ........................ 20

pe A I Nel tie Mn Ad SO IN ee AE 20

Appendices:

Appendix A—Judgment 2020..0..0..0...eccecccccssescecesesseeseees A-l

Appendix B—Affidavits In Support of Motion for

Award of Damages for Delay.............. A-4

TABLES OF AUTHORITY

Table of Cases

Caldwell v. Texas, 137 U.S. 697, 11 S. Ct. 224,

34 L. Ed. 816 (Tex. fT ERT RTA INE 18

Cramp v. Board of Public Instruction, 368 U.S. 278,

ott 875, 7b. Oe OO... 19

Erie R.R. v. Tomkins, 304 U.S. 64, 8 L. Ed. 1188,

58 S. Ct. 817, 114 A.L.R. 1487 (1938) I SRS LOO 15

Ex Parte Stricker, 109 F. 145 (C.C. Ps WD scccccciccens 17

(a PER OLLI PE EL BANE LOL OIL AO LEAD ELE DIL ALE LIANE SONI SH BE ELH GE ED PTI 8

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0 AR. ON SCE TEE ee EN Ae et th wg %

Os el AOR

ii

Page

Garner v. State of La., 368 U.S. 157, 82 S. Ct.

248, 7 L. Ed. 2d 207 (La. 1958)................. Daadasomanint 19

Herb v. Pitcarin,

324 U.S. 117, 65 S. Ct. 459, 89 L. Ed. 789 ................ 18-19

Holden v. Stratton, 198 U.S. 202, 49 L. Ed.

1018, 25 S. Ct. 656 .......... baaplompsuorseiaalgasebiesan Deakins 13

In re Estate of Livingston, 7 Wn. App. 841, 502

gk _ | RIND tan co ae HE A rE 6,15

In re Northern Sav. & Loan Ass'n. v. Kneisley,

Re PUN: Uy, WAU I I das acces sinncrninccsncee 13, 15

King v. West Virginia, 216 U.S. 92, 30 S. Ct.

225, 54 L. Ed. 396 (W. Va. 1910)... 17

Millinger v. Hartupee, 73 U.S. 258, 18 L. Ed. 829.......... 19

New Orleans v. New Orleans Water Works,

142 U.S. 88, 12 S. Ct. 142, 35 L. Ed. 943 (La. 1891).. 17

Oregon Mtg. Co. v. Hersner, 14 Wash. 515, 45 P. 40

RSE NEESER IES RES Sera ry ae UE 12

Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332,

eee FG Be | eee ee 19

Standard Oil Co. v. New Jersey, 341 U.S. 428,

is Se ER, Oi GI TIED cess secctndctonievraencaouioon 15

Tidal Oil v. Flanagan, 263 U.S. 444, 68 L. Ed. 382........ 18

United States Fid. & Guar. Co. v. State of Oklahoma,

250 U.S. 111, 39 S. Ct. 399, 63 L. Ed. 876 (1919)... 19

Zucht v. King, 260 U.S. 174, 43 S. Ct. 24, 62 L. Ed.

0” ipaeinaraentnan aan bas nara 19

Constitutional Provisions

a 3, 9,17

aa era 3, 7, 8, 12, 16

Statutes

ATTENTION Oe eR EN 7,11

LS ok S|, a ee 2,9, 17

Textbooks

Page

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SUE shasbluainibinnishiiiibnintnepienbasonaiieds 15-16

(ge ai ER NIRA re eae Nie aS 8

CN RS NE ne a 8

EN A MEE tected hitdanatdibasnaabcuianaabdaneanndte 8, 9-10

PIE Naitccnieniatihlsiacesidcanieeinncccanat teen 12

Other Authority

RRA EE ee aR ORE: 17

ee 9

Supreme Court Rule 23(4) ............cc ccc cccccccccccecceeees 3,4

Supreme Court Rule 56(2) (4) ...c.c.ccccccccccccceccececceeeceseeceee 20

BLEED THROUGH

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-994.

WILLADENE LIVINGSTON,

Petitioner,

V.

FRED SHELTON,

Administrator, Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

AND

MOTION FOR AWARD OF DAMAGES FOR DELAY

On Petition for Writ of Certiorari to the

Supreme Court of the State of Washington

COMES NOW Fred Shelton, Administrator de bonis

non with Will annexed of the Estate of Elwyn Judson

Livingston, Deceased, and opposes the Petition for Writ

of Certiorari in the above-entitled cause, received on the

13th day of January, 1976, and moves the Court for an

Order awarding damages to the Respondent upon the

ground that this Petition was sued out merely for delay

in the probate of the Estate of Elwyn Judson Livingston,

Deceased.

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hi BL SES RBETE De 12

2

FORMAT

For convenient reference, Respondent will use the for-

mat of the Petition, but will correct any inaccuracies

or omissions found in the Petition.

OPINIONS BELOW

In addition to the lower court Decisions cited and set

forth in the Appendix of the Petition, the Respondent has

added the Judgment of the trial court dated the 26th

day of December, 1972, and set forth as Appendix J.

JURISDICTION

There is no title, right, privilege or immunity, or any

other claim under the U.S. Constitution, or for that matter,

the State Constitution, affected by the judgment herein

affirmed by the Washington State Supreme Court. None

was raised during three levels of state courts, except on

the final petition for rehearing, raising a State Constitu-

tion question, no federal one, which was promptly re-

jected without opinion. This is a common law suit in

subrogation. A state insurance statute was argued but

found not applicable. There is no federal question here

to confer jurisdiction on the U.S. Supreme Court. See

argument below.

STATUTE INVOLVED

Petitioner attempts to stretch the provisions of 28 USC,

Section 1257 (3) to reach a “title, right, privilege or im-

munity . . . claimed under the Constitution” to acquire

jurisdiction of the United States Supreme Court, but has

failed to do so in her Petition. Petitioner sought to be

subrogated to a bank claim for money only, under the

common law doctrine of subrogation, but was unable to

qualify. Petitioner enjoyed “due process” through three

3

levels of the State courts and raised no Constitutional

question until after the final decision of the State Supreme

Court. It was rejected there, on rehearing, without opinion

and has no substance or merit here. Petitioner has pointed

out no “life, liberty,” or any specific “property” (except a

hypothetical claim for money ) that she has been deprived

of without “due process of law’—in three years of litiga-

tion. See argument below.

QUESTIONS PRESENTED

Respondent rejects Petitioner's “Questions Presented”

Nos. 1 and 2 as being inaccurate statements of the ques-

tions of law presented in the case appealed from.

“The failure of the Petitioner to present, with ac-

curacy, brevity and clearness whatever is essential

to a ready and adequate understanding of the points

requiring consideration, will be a sufficient reason

for denying her Petition.” 32 Am. Jur. 2d 752, Section

286, Rule 23(4) Rules of Supreme Court.

Respondent herewith restates the true issue found in

this case:

1. (in Petition ) — Not appropriate.

2. (in Petition ) — Not appropriate.

3. Does the denial of an unmeritorious claim under

the common law doctrine of “subrogation,” for a sum

of money only, constitute an abridgment of “any title,

right, privilege, or immunity . . . specifically set up or

claimed under the Constitution,” Amendment XIV of

the United States Constitution providing “. . . nor

shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws,” or Article XIX of the Constitution of the

State of Washington, providing “the legislature shall

protect by law from forced sale a certain portion of

the homestead and other property of all heads of

families?”

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BO a ee Na EAA hi GOR.

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Petitioner sets forth in her Petition no such title, right,

privilege, immunity, or any specific property or homestead

that she has been deprived of with or without due process

of law. She is a disappointed litigant for a claim of money

under a mythical claim of “subrogation.” Her petition sets

forth no persuasive legal grounds, and appears to be filed

for the purpose of delaying the probate and settlement

of her deceased husband's estate. See Argument below.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions cited in the

Petition are not applicable to this case, nor appropriate,

as discussed below. Petitioner cites no language of the con-

stitutional sections upon which she is relying.

STATEMENT OF THE CASE

For convenient reference, Respondent will use the eight

definitions and symbol references found on page 4 of the

Petition, for identification of the Court, the parties, and

portions of the record.

A Concise Restatement of the Case

Petitioner's recital of the facts is so truncated, nebulous,

and inaccurate, that her theories and thesis, and her brief

as a whole, are rendered unintelligible. This alone is

grounds for denying Petition. Rule 23(4), Rules of Su-

preme Court.

The true facts are these:

Petitioner and her husband, the late Elwyn Judson Liv-

ingston, Deceased, herein referred to as decedent, were a

marital community under the the community property laws

of the State of Washington, and carried on farming opera-

5

tions, and other related business enterprises through family

corporations, in and near Othello, Washington, until the

death of the decedent in December of 1968, from injuries

received in an auto accident. To finance their enterprises,

the decedent and the Petitioner obtained extensive loans

from the Bank of Yakima, which required and took, as

collateral, mortgages on all of the real propery of the bor-

rowers, including assignment of accounts receivable, a gen-

eral loan and collateral agreement, and an assignment of

four life insurance policies on the life of the decedent with

face values of approximately $425,000.00. The decedent

had life insurance of a face value in excess of $800,000.00

on his life at the time of his death, and all of it was taken

in the name of, or transferred to the name of, the Petitioner

as owner, during decedent’s lifetime, and the Petitioner

was named as beneficiary. Petitioner joined with her hus-

band, individually and as a marital community, in assign-

ing to the Bank of Yakima approximately $425,000.00 of

said life insurance, as collateral to secure said loans, which

were granted to the decedent and his wife, individually

and as a marital community. The general loan and col-

lateral agreement provided that the Bank, at its option,

could apply, in any order, any of the collateral in payment

of its debt, including the proceeds of the life insurance, in

the event of death. Upon the death, the life insurance com-

panies remitted the insurance proceeds to the Bank as

assignee of record in the sum of $453,516.77, in exchange

for the original policies held by the Bank. The balance

owing to the Bank at death was $623,887.46. The insurance

companies paid directly to the Petitioner approximately

$400,000.00 of the proceeds of policies that were not as-

signed to the Bank and which sum came into the Peti-

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6

tioner’s hands, outside of the probate, and free of any

creditor claims. Said funds paid to the Petitioner were not

inventoried in the estate, and are not at issue in this case.

At the time of death, the estate was bordering on insol-

vency. The Petitioner was appointed executrix under the

terms of the decedent's Will, qualified, and acted as execu-

trix for approximately two years, until she was removed

for mismanagement of the estate. In re Estate of Living-

ston, 7 Wn. App. 841, 502 P.2d 1247 (1972). Respondent,

a local lawyer, was appointed administrator to settle and

distribute the estate. Creditors of the decedent and Pe-

titioner filed allowable claims in a sum of approximately

$400,000.00, which remain unpaid. When Administrator

attempted to obtain a court order for the sale of the real

property of the estate, including the decedent's family

dwelling, Petitioner commenced this action in subrogation.

The balance of the debt to the Bank of Yakima, after the

application of insurance proceeds and other property, was

paid in full by the Administrator, with the written approval

of Petitioner's counsel, and the Bank released all of its

collateral and mortgages.

By subrogation, the Petitioner seeks to be placed in the

shoes of the Bank of Yakima as holder of its mortgages on

all of the estate property to the extent of the assigned in-

surance proceeds paid in the sum of $453,516.77, thereby,

in effect, sequestering to herself all of the remaining assets

of the estate, and leaving the creditors with no payment

at all. The Petitioner is the residual heir of the decedent.

The trial court, a visiting judge, dismissed Petitioner's

suit in subrogation, summarily at the close of her case,

without hearing the Respondent, and stated that this case

7

was simple, it was not a subrogation case at all. See Appen-

dix A.

The Court of Appeals, finding no applicable Washington

decisional law, erroneously applied, from other non-com-

munity property states, a common law rule that permitted

widow-beneficiaries, in certain instances, to be subrogated

to the liens of assignee-bank-creditors of decedents. The

Court of Appeals, in overlooking the assignment, also mis-

construed Revised Code of Washington 48.18.410, pertain-

ing to exemption of life insurance proceeds, and reversed

the trial court, found that the Petitioner had made a prima

facie case for resumption of the trial.

Because of such grievous errors, Respondent, rather than

resuming the trial, appealed promptly to the Supreme

Court of the State of Washington, which, in a 9 to 0 de-

cision, reversed the Court of Appeals and confirmed the

judgment of the trial court, dismissing Petitioner’s suit in

subrogation. Petitioner’s motion to stay proceedings was

denied by the Washington State Supreme Court, as noted

in the Petition for Writ of Certiorari, page 6.

FEDERAL QUESTIONS RAISED

1. Petitioner, in three levels of the state court, sought to

buttress her claim in subrogation by a misinterpretation

of RCW 48.18.410. The Washington State Supreme Court

properly disregarded said statute because it is not applica-

ble to the facts in this case.

2. For the first time, (page 7.2. of Petition ), in her Peti-

tion for Rehearing before the Washington Supreme Court,

Petitioner attempted to establish a federal questicn by

tying the insurance exemption statute to Article XIX of the

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8

Washington State Constitution, which provides as follows,

“The legislature shall protect by law from forced sale

a certain portion of the homestead and other property

of all heads of families,”

Insurance exemption in Washington is provided by spe-

cial statute and does not fall under the homestead exemp-

tion provided for by the State Constitution, or pursuant

thereto.

“Thus, mattters other than the question of federal

jurisdiction or evidence contained in the record will

not ordinarily be considered by that court on appeal

where they were not presented and decided in the

lower court. Similarly, the Supreme Court, on certior-

ari, will not, as a rule, consider claims not made below,

or not timely made, particularly where the questions

not raised below is important. 32 Am. Jur. 2d 766,

Section 297.

“As previously indicated, it is essential to jurisdiction

of the Supreme Court on appeal from a state statute

that there be an explicit and timely insistence in the

state court that the statute, as applied, is repugnant

to the federal Constitut’ »n, treaties, or laws. Thus, the

Supreme Court on an a, .al will not pass upon the

question of the constitutionality of a state statute

which was not raised in the proceedings in the state

courts.” 32 Am, Jur. 2d 768, Section 297.

“A preliminary step in showing that the state court's

decision turned on a federal question, and one which

the Supreme Court has uniformly recognized as es-

sential, is that the record shows such a question actual-

ly arose or was presented in the case. A second essen-

tial step in showing that the state court’s decision

turned upon a federal question is to show from the

records that the state actually passed upon and decided

a question of this character. It must also appear from

the record, affirmatively or by fair implication, that

the decision was necessary to determination of the

cause.” 32 Am. Jur. 2d 777, Section 303.

9

3. Petitioner has cited no federal question that would

apply to her facts; she has cited no constitutional right that

has been abridged, and she pressed none during trial or

appeals, and, therefore, Petitioner has not attained juris-

diction of this Court under 28 USC 1257(3) or under Rule

19 of the U.S. Supreme Court.

“Consequently, the Court will not review a judgment

or decree of a state court if the record shows it was,

or may have been, rendered upon a ground which did

not involve a federal question and which was sufficient

to sustain it.” 32 Am. Jur. 2d 777, Section 303.

4. Petitioner sought relief under a common law doctrine

in equity; her complaint was patiently heard and adjudi-

cated in three levels of the state court; no constitutional

rights were asserted or interfered with; Petitioner has

qualified for no right to writ of certiorari, any more than

any other disgruntled litigant seeking a sum of money

under equitable common law principles.

5. Petitioner has not been deprived of life, liberty, or

property, without due process of law, nor has she been

denied equal protection under the laws, as intended by

Amendment XIV of the United States Constitution, nor

has she demonstrated otherwise, in her petition. She

simply lost a suit in a common law claim for money.

“As already indicated, the Rules of the Supreme

Court provide that where a review of the judgment

of a state court is sought, the required jurisdictional

appeal, or the petition for certiorari, as the case may

be, must specify the state at which and the manner

in which the federal questions sought to be reviewed

were raised in the courts below, the method of raising

them, and the way in which they were passed upon

by the court. In addition, the jurisdictional statement

must contain such pertinent quotations from the

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10

record as will support the assertion that rulings of

the state court were of a nature to bring the case

within the statutory provisions believed to convert

jurisdiction on the Supreme Court, and must include

a presentation of the grounds upon which it is con-

tended that federal questions are substantial, which

must show that the nature of the case and of the

rulings of the state court was such as to bring the

case within the jurisdictional provisions relied on and

the cases cited to sustain the jurisdiction. The petition

for certiorari must also contain such pertinent quo-

tations from the record as will show that the federal!

uestion was timely and properly raised so as to give

the Supreme Court jurisdiction to review the judg-

ment on Writ of Certioari.” 32 Am. Jur. 2d 277, Sec-

tion 303.

These things Petitioner has not done.

REASONS FOR NOT GRANTING THE WRIT

As can be seen from the records and files herein, the Peti-

tion for Writ, itself, and by the appendices thereto, the

Petitioner attempted to sequester to herself the remaining

assets of her husband’s estate under the theory of subro-

gation and thereby leave the creditors of herself and

her deceased husband, with claims of approximately

$400,000.00, with no payment at all. No place in her case

in three levels of the State courts did she press, or argue,

the “equities” of her position, because clearly she had

none. Equity is the foundation of subrogation. Petitioner

had no equity to support her position; in fact, her equities

were negative—against herself and her actions could more

simply be characterized as “piracy” or self-enrichment.

The theory of her subrogation claim finds some decisional

support in a series of cases from common law sstates,

where a wife at common law held no title or interest in

her husband’s property and thereby qualified as a true

1]

third party-subrogee between creditor and debtor hus-

band, required for common law subrogation. Appendix

A. None of those cases present the shocking and uncon-

scionable posture of the claim of the “subrogee” in this

case.

Lacking the equities, and attempting to establish “third-

party status, Petitioner has adroitly and ingeniously

turned to RCW 48.18.410, which expressly provides ex-

emption for proceeds of life insurance, in the hands of

the beneficiary. Petitioner blindly misconstrues the plain

language of this statute.

The first line of said statute commences:

“The lawful beneficiary, assignee, or payee of a life

insurance policy . . . shall be entitled to the proceeds

and avails of the policy against the creditors and rep-

resentatives of the insured . . . existing at the time

the proceeds or avails are made available for his own

use. Appendix G. (Emphasis ours )

Clearly, this exemption, after an assignment, extends

only to the assignee—the Bank of Yakima—and not the

beneficiary—Petitioner. Both cannot enjoy the exemption

at the same time and the statute reads, in the alternative,

“or.” Furthermore, the “proceeds or avails” were never

“made available for (her) own use.” They were rightfully

paid to assignee, who enjoyed said statutory exemption.

Petitioner had effectively and irrevocably assigned, as

collateral, all of her rights in said insurance proceeds, in-

dividually and as a member of the marital community, in

writing, to the Bank of Yakima, in exchange for the grant

of loan or loans of money to her and her husband in excess

of $600,000.00. Death intervened, and the assignment be-

came absolute, and the insurance was applied as intended

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12

and as agreed. Such insurance proceeds never accrued

to her, individually, as a third-party, to qualify her as a

subrogee. The Washington State Supreme Court correctly

ignored this specious argument and naive misinterpretation

of the statute by the Petitioner.

The Washington State Supreme Court has held that even

a homestead is not protected by Article XIX of the Wash-

ington State Constitution, as Petitioner contends, where

the homestead has been voluntarily alienated or encum-

bered. Oregon Mtg. Co. v. Hersner, (1896) 14 Wash. 515,

45 P. 40. How much more so is the conclusiveness of an

assigned right that does not enjoy the protection of the

Constitution?

Thus, Petitioner, first, has no equitable right and, sec-

ondly, has effectively and irrevocably assigned her exemp-

tion rights, if any, for a valuable consideration, in the in-

surance proceeds. She cannot have her cake and eat it, too.

Petitioner has presented no clear and convincing federal

question or constitutional question that would give her

access to this Court, and her petition should be denied.

“(In the Petition for Writ of Certiorari) there must

be averments so distinct and positive as to place it

beyond question that the party bringing the case up

for review intended to assert a federal right.” 32

Am. Jur. 2d 778-779, Section 304.

“Generally, the federal question must be raised before

final decision in the state court and it may be too late

where it is presented in an application for rehearing

in the highest state court (footnote 10) unless that

court entertains the application and proceeds to pass

upon the federal question (footnote 11) or exerted

its jurisdiction . . . or unless the question respecting

the validity if the statute . . .” 32 Am. Jur. 2d 732,

Section 261.

13

These things Petitioner has not done.

RESPONDENT'S ANSWERS TO PETITIONER’S

REASONS FOR GRANTING THE WRIT

In her argument, under Reasons for Granting the Writ,

Petitioner solemnly intones the Constitution of the State

of Washington, in commencing her argument on this

insurance exemption statute, but is careful not to recite

that the insurance exemption statute was enacted pursuant

to any provision of said Constitution.

Petitioner relies heavily on In re Northern Sav. & Loan

Ass'n. v. Kneisley, 193 Wash. 372, 76 P.2d 297, and pro-

ceeds to cite the old insurance exemption statute that has

been amended at least three times. Then Holden v. Strat-

ton, 198 U.S. 202, 49 L. Ed. 1018, 25 S. Ct. 656, is men-

tioned; and then she states: “There has been no change

in effect in the wording of the Washington life insurance

exemption statute since the date of Holden v. Stratton,

supra.” Then, to immediately contradict herself, the next

paragraph sets forth the present wording of the statute,

which is substantially different than at the time of the

cited cases. This is misleading.

These cases do not support her hypothesis.

Then, the Petitioner, with the language of the statute

before her, naively and inexplicably, makes the inaccur-

ate bold statement that “the beneficiary, as petitioner

herein, is entitled to the proceeds of the life insurance

against the ‘creditors and representatives of the insured’.”

The statute says that the beneficiary (or) assignee shall be

entitled to the proceeds. Petitioner had assigned them and

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PILE, toe

14

given them up, including the exemption. Her argument

is meaningless and transparent.

Starting with this grossly false interpretation of the stat-

ute, the Petitioner proceeds to vainly squander meaning-

less verbiage, completely off the point.

On page 12 of the petition, 1 Barren and Holtzoff is

cited to the effect that final judgment of a state court of

last resort may be reviewed by the Supreme Court by

certiorari if any right, title, or privilege is claimed under

the Constitution of the United States, and states further

“The Supreme Court will not review a state court decision,

even though a federal question is involved, if the decision

rests on adequate state ground,” and then continues that

the Supreme Court will determine whether the state

ground is adequate. Petitioner makes a common law claim,

which was adjudicated justly, and the State adequately

interpreted its own State statute.

Here, Petitioner has no constitutional ground, or even

a federal question, to even knock on the door of this august

tribunal.

Petitioner again presses, on page 12, that she was denied

a statutory exemption right, deprived of a state constitu-

tional property right, and then she complains that the court

or the administrator has cited no case to disprove her

theory. Her theory is so groundless that no disproof is

indicated or necessary, and need not be dignified.

Next, on page 13, Petitioner cites obiter dicta from Broad

River Power Co. and Demorest, both U.S. Supreme Court

cases, that actually hold against her position, and both

dismiss the Petition for Writ of Certiorari. The rule cited

does not support her.

15

On page 14, Petitioner argues that the Court in Living-

ston “worked an unpredictable change in the state law.”

The Court of Appeals said, which constitutes a refutation

of this statement, that Livingston was a case of first im-

pression in Washington. Thus, she could not have been

misled by an unpredictable change.

Petitioner attempts to stretch the holding in In re Schoen-

feld Estate, on page 15 of her brief, to cover her situation.

The case is not apposite. No assignment of the policy was

involved.

Petitioner attempts to show discrimination by citing the

Kneisley and In re Elliott cases, on page 17 of her brief,

(books and pages are cited on pages 8 and 9). There is

no similarity with the Livingston case, because neither

involve assignment of life insurance.

It is significant that In re Elliott cites Erie R. R. v. Tomp-

kins, 304 U.S. 64, 8 L. Ed. 1188, 58 S. Ct. 817, 114 A.L.R.

1487 (1938). The case states:

“Since Erie federal courts have been required to fol-

low local law as expounded by state courts.”

How appropriate.

A state court's construction of a state statute is binding

on federal courts. Standard Oil Co. v. New Jersey, 341,

U.S. 428, 95 L. Ed. 1078, 71 S. Ct. 822 (escheat statute ).

The Livingston case involves local law and interpreta-

tion of local statutes. Federal courts do not interfere. Inas-

much as the Petitioner can find no federal or constitutional

question, she is not entitled to a Writ of Certiorari.

“Review by the Supreme Court on certiorari does

not encompass local matters and questions of state

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Rete Vinaa tat.

16

law, the decision of which does not involve any viola-

tion of the Federal Constitution or State laws.” ( Foot-

note 11, 32 Am. Jur., Fed. Practice, p. 763. )

Petitioner blindly ignores her own factual situation and

curiously interprets the insurance exemption statute and

plunges forward in a vague and rambling argument that

is so irrelevant and illusive in places that it is difficult to

grapple with. The petition is an opus of obfuscation. Her

only glimmer of hope, in her seemingly endless litigation,

was found momentarily in the Court of Appeals. That Court

found no Washington case precedent, and, groping for

some law, latched onto the inappropriate common law

states’ rule of subrogation, and then became decoyed into

the Petitioner’s insurance exemption theory. The Washing-

ton State Supreme Court quickly straightened out that

aberation.

Notwithstanding her ingenious theory, Petitioner is un-

able to cite any reasonable grounds under a federal or

constitutional question to qualify for the jurisdiction of

the Supreme Court.

FURTHER LAW AND ARGUMENT

For jurisdiction, Petitioner relied upon Article XIX of

the State Constitution of Washington, which provides as

follows:

“The legislature shall protect by law from forced sale

a certain portion of the homestead and other property

of all heads of families.”

Yet, her argument is not based on this constitutional

Article at all, but on an insurance statute, which was not

passed pursuant to homestead exemptions. The insurance

statute benefits beneficiaries of all classes not limited to

“heads of families.”

17

The jurisdictional federal statute, 28 USC, Section 1257

(3), pertains to the Federal Constitution and not state con-

stitutions.

The U.S. Supreme Court has said:

“The construction of state constitutions and statutes

is a matter for the state courts.” King v. West Virginia,

(W. Va. 1910) 216 U.S. 92, 30 S. Ct. 225, 54 L. Ed.

396.

Petitioner next relies upon the “due process” clause of

Amendment XIV of the U.S. Constitution.

Black’s Law Dictionary defines due process of law,

thusly:

“Law in its regular course of administration through

courts of justice.”

Petitioner's rights have been adjudicated through three

levels of courts of record of the State of Washington.

Due proces of law has also been defined as follows:

“Due process of law means a course of legal proceed-

ings, according to those rules and principles which

have been established in our system of jurisprudence,

for the protection and enforcement of private and

personal rights.” Ex parte Stricker (C.C. Ky. 1901),

109 F. 145.

The Supreme Court has stated further on this:

“To constitute a violation of this clause, it should ap-

pear that such person has a property in a particular

thing of which he is alleged to have been deprived.”

New Orleans v. New Orleans Water Works, (La. 1891)

142 U.S. 88, 12 S. Ct. 142, 35 L. Ed. 943.

Petitioner has pointed to no property of which she has

been deprived. Her claim is a subrogation for money under

the Bank mortgages.

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s diborane Rea this Oi dh tad VARRROME

18

The Supreme Court has stated further:

“Law, in its regular course of administration through

courts of justice, is due process, when secured by the

law of the state, the constitutional requisite is satis-

fied.” Caldwell v. Texas, (Tex. 1891), 137 U.S. 697,

11 S. Ct. 224, 34 L. Ed. 816.

On Petitioner's failure to raise a federal question in the

State courts, the Supreme Court has said:

“This court has always held it is a prerequisite to the

federal question in a case coming from a state court

that the question should have been raised in that

court before decision, or that it should have been ac-

tually entertained and considered upon petition to

rehear. A mere denial of the petition by the state court,

without opinion, is not enough.” Tidal Oil v. Flanagan,

263 U.S. 444, 68 L. Ed. 382, 387.

Petitioner failed to raise a constitutional question until

she filed Petition for Rehearing, which was denied without

opinion. Thus, she cannot reach this court.

That opinion further stated a refutation to one of Pe-

titioner’s points, as follows:

“... the mere fact that the state reversed a former

decision, to the prejudice of one party, does not take

away his property without due process of law.” Tidal

Oil Co. v. Flanagan, supra.

On jurisdiction, the Supreme Court stated:

“... it must affirmatively appear that the federal ques-

tion was decided and that its decision was essential

to the disposition of the case; and that where it is not

clear whether the judgment rests on a federal ground

or an adequate state one, this court will not review.”

Herb v. Pitcarin, 324 U.S. 117, 65 S. Ct. 459, 89 L.

Ed. 789, 795.

That decision held further:

“It is our purpose scrupulously to observe the long

19

standing rule that we will not review a judgment of a

state court that rests on an adequate and independent

ground in state law.” Herb v. Pitcarin, supra.

Further, on jurisdiction:

“To give the Supreme Court jurisdiction of error to

state court, mere assertion of a claim in respect of

some constitutional right is not enough, but there must

be a real and substantial controversy of the required

character which deserves serious attention.” U. S. Fid.

& Guar. Co. v. State of Oklahoma, (1919) 250 U.S.

111, 39 S. Ct. 399, 63 L. Ed. 876.

The Supreme Court states further:

“The court has no jurisdiction, unless a real, and not

a fictitious, federal question is involved.” Millinger v.

Hartupee, (Pa. 1868) 73 U.S. 258, 18 L. Ed. 829.

On construction of States statutes, the Court states as

follows:

“United States Supreme Court must accept state court's

construction of a state statute.” Cramp v. Board of

Public Instruction, (Fla. 1961) 368 U.S. 278, 82 S.

Ct. 275, 7 L. Ed. 2d 285.

“State courts have final authority to interpret and,

where they see fit, to re-interpret that state's legisla-

tion.” Garner v. State of La., (La. 1961), 368 U.S.

157, 82 S. Ct. 248, 7 L. Ed. 2d 207.

“The construction of state law is the exclusive respon-

sibility of state courts.” Speiser v. Randall, (Cal.

1958 ), 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460.

The Court says that the federal question must be sub-

stantial:

“To afford the basis for review, either by appeal or

certiorari, the federal question upon which the state

court judgment hinges must be substantial.” Zucht v.

King, (1922) 260 U.S. 174, 43 S. Ct. 24, 62 L. Ed. 194.

Thus it has been demonstrated that the Petitioner has

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ate HEAR SEAR ARINC ge rt

20

failed to present a constitutional or federal question to

reach the Supreme Court, that her theory is artificial and

fictitious, that she enjoyed patient and extensive due

process through the state courts, and her petition is without

foundation and should be denied.

MOTION FOR AWARD OF DAMAGES FOR DELAY

Respondent hereby moves the Supreme Court of the

United States for an Order awarding damages to Respond-

ent for the delay of the probate of the Livingston Estate,

caused by Petitioner's Petition for Writ of Certiorari,

pursuant to Rule 56(2)(4), Rules of the U.S. Supreme

Court.

This Motion is based on the Affidavit of the Respondent

annexed hereto as Appendix B, in the sum of $22,050.94,

and on the grounds that Petitioner's Petition is patently

dilatory and spurious, without supportive legal foundation.

The Livingston Estate has been in probate for seven

years and the Respondent has been in litigation nearly five

years, involving the Petitioner.

Petitioner is frustrating the orderly administration of

this estate with frivolous and groundless litigation, which

is dissipating the estate with legal and court costs and

permitting the assets of the estate to be dissipated in

accruing interest and administrative expense.

CONCLUSION

Petitioner prays the Court to deny the Petitioner's Peti-

tion for Writ of Certiorari and award the Respondent

damages suffered by the estate for the needless expense

and cost accumulating by delay caused by the groundless

21

and frivolous petition filed by the Petitioner, in the sum

of $22,050.94, as detailed in Respondent's Affidavit.

Dated this 6th day of February, 1976.

Respectfully submitted,

D. Gorvon WILLHITE

Attorney for Respondent

FRED SHELTON, Administrator

Of Counsel

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A-1

APPENDIX A

IN THE SUPERIOR COURT

OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF ADAMS

(Sitting for this cause,

In the Lincoln County Courthouse, Davenport )

WILLADENE LiviINGsTON, a widow,

Plaintiff,

V. No. 11185

Frep SHELTON, as Administrator of the

Estate of Elwyn Judson Livingstone, JUDGMENT

Deceased; THE BANK OF YAKIMA, a State

Bank,

Defendants.

THIS MATTER having come on regularly before the

Court for trial without jury on the 20th day of November,

1972, sitting as a visiting judge, in the Lincoln County

Courthouse, Davenport, Washington, Willadene Living-

ston, Plaintiff, appearing in person and being represented

by W. Walters Miller and Richard Miller, her attorneys,

Fred Shelton, as Administrator de bonis non with the Will

annexed of the estate of Elwyn Judson Livingsston, de-

ceased, appearing in person and representing himself, as

said Administrator, and Willadene Livingston testifying

and adducing evidence in support of her Complaint, the

Bank of Yakima, as Defendant, not appearing, and not

having been served with process, and the attorneys for

Plaintiff and Fred Shelton, as Administrator, having stipu-

lated that true copies of promissory notes executed by

E. J. Livingston and Willadene Livingston, his wife, pay-

able to the Bank of Yakima, evidencing a debt by them

due to the Bank of Yakima, with a balance owing of

$623,887.46, as of December 11, 1968, and the mortgages

given as security thereon, together with assignments of

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bE AROENG BETA RN a's

A-2

other collateral, be admitted in evidence, and having

further stipulated that copies of Deeds by which the

Livingstons took title to Farm Units 137, 138 and 139,

Irrigation Block, 45, Columbia Basin Project, Adams

County, Washington, be admitted in evidence, and it

being further stipulated that copies or memoranda in evi-

dence of copies of the following described insurance pol-

icies, insuring the life of E. J. Livingston, deceased, and

copies of the assignments thereof, and the general col-

lateral agreement given to the Bank of Yakima, be ad-

mitted in evidence, to-wit: Central Life Insurance Com-

pany, Policy No. 964997, dated February 25, 1963; Safeco

Life Insurance Company, Policy No. 51855, dated March

10, 1965; and United Pacific Life Insurance Company,

Policy No. 5765, dated June 17, 1965; and at the conclu-

sion of Plaintiff's case, Plaintiff having rested; and before

the commencement of the Defendant Administrator's case,

the Court on its own initiative announced that Plaintiff

has no claim in subrogation and that her Complaint would

be dismissed; and the Defendant did not further press

his defense or his counterclaims, and produced no evidence

in support thereof; and the court having examined the

evidence, and having read and examined the trial briefs

submitted by the parties; and the court having heard the

argument of Plaintiff's counsel on the theory of subroga-

tion and having rejected Plaintiff's theory, and the Court

being duly advised in the premises, and the Court having

heretofore entered its Findings of Fact and Conclusions

of Law, now, therefore,

IT IS ORDERED, ADJUDGED and DECREED that

Plaintiff's Complaint be dismissed with prejudice.

IT IS FURTHER ORDERED, ADJUDGED and DE-

CREED that all of the real and personal property inven-

toried in the Estate of Elwyn Judson Livingston, De-

ceased, in probate cause no. 4074, In the Superior Court

A-3

of the State of Washington, for Adams County, be, and

the same is hereby cleared and quieted in the Admin-

istrator of said estate, free of any cloud or encumbrance

or restriction, imposed thereon by Plaintiff, by reason of,

or arising out of Plaintiff's claim of subrogation, alleged

in the above entitled cause, or by reason of any Lis Pen-

dens filed or recorded on the public records, by reason of

the above-entitled action or claim of subrogation alleged

thereon; and the Adams County Auditor is hereby author-

ized and directed to release of record any Lis Pendens

bearing the caption of the above-entitled cause.

IT IS FURTHER ORDERED, ADJUDGED and DE-

CREED that Defendant Administator’s counterclaim for

attorney fees incurred in defending the above-entitled ac-

tion and his counterclaim for damages for filing Lis Pen-

dens and actions in frustrating orders of the probate

court, be, and the same are hereby dismissed, without

prejudice.

IT IS FURTHER ORDERED, ADJUDGED and DE-

CREED that the Defendant Administrator is entitled to,

on behalf of the estate, his costs herein.

Dated this 26 day of December, 1972.

/s/RicHARD J. ENNIs

Judge

Presented by:

/s/FRED SHELTON

FRED SHELTON, as Administrator

of Estate of E. J. Livingston

Deceased.

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Pe BP Lem AR Se a,

A-4

APPENDIX B

AFFIDAVITS IN SUPPORT OF MOTION

FOR AWARD OF DAMAGES FOR DELAY

CAUSED BY

PETITION FOR WRIT OF CERTIORARI

STATE OF gay .

County of Adams

FrED SHELTON, being first duly sworn on oath, deposes

and says:

That he is the duly appointed and acting Administrator

de bonis non with Will annexed of the Estate of Elwyn

Judson Livingston, Deceased, in the Superior Court of

the State of Washington, in and for the County of Adams,

Probate Division, Probate No. 4074.

That he was appointed as Administrator by the Court in

January, 1971, and has been at all times since and is now

the acting Administrator of said estate.

That Administrator has been trying diligently to wind

up the affairs and settle said probate, pay the creditors,

and distribute the assets, but has been continually frus-

trated from doing so by the litigation of the widow of the

decedent, the Petitioner.

That it appears to Respondent that the Petition for Writ

of Certiorari in the above-entitled Court is sued out for

the purpose of further delay.

That said Petitioner has litigated a groundless claim in

subrogation against the Administrator for over three years

in three levels of the state courts and her claim was con-

clusively rejected by the court of last resort.

That Petitioner has filed a groundless Petition for Writ

of Certiorari in the above-entitled court which will delay

the probate proceedings and the settlement of the estate

for at least another year.

A-5

That certain claims listed below have been reduced to

judgment and are bearing interest at an annual rate as

shown on Exhibit “A” annexed hereto and by this refer-

ence made a part hereof, which constitutes a dissipation

of estate funds, and an unfair discrimination against other

unsecured general creditors, whose claims have been ap-

proved and whose claims do not bear interest.

That the delay of each year that elapses pending the

disposition of Petitioner“s Petition for Writ of Certiorari

will result in a loss to the estate of the sum of approxi-

mately $19,050.94 in interest and the sum of $3,000.00 in

court costs, attroney fees, and costs of administration as

listed below:

Judgment Annual

Creditor Accrued Interest

(See Exhibit “A” next page)

Total $19,050.94

Unnecessary Costs of Administration

in Delay of Estate

Attorney fees, response to Petition for Writ

of Review (estimated ) ...............ecccecececessseeeeoeees $2,000.00

Estimated costs of travel, telephone, etc., if

necessary to attend oral argument...................... 500.00

Estimated extra accounting and bookkeeping...... 500.00

That the disposition of Petitioner's Petition for Writ of

Certiorari to this Court will delay said probate at least a

year.

/s/ FRED SHELTON

SUBSCRIBED and SWORN TO before me this 28th

day of January, 1976.

/s/ Pau. E. Hart

Notary Public in and for

the State of Washington

residing at Othello. [seal]

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