Opposition Brief — McNamara v. Salvation Army, Inc.

INDEX

Susszot Inpex

Tasie or Cases Crrep

Brief of appellant in opposition to motion to dismiss

Albrecht v. U. S., 273 U. 8. 1, 47 Sup. Ct. 250.

Baldwin v. Hale, 1 Wall. 293 Pe ere oe ood

Coe v. Armour Fertilizer Works, 237 U.S. 413

Galpin v. Page, 18 Wall. 350...

Lows K. Liggett Co. v. Baldridge, 278 U. S. 105,

49 Sup. Ct. 57........

Louisville & N. R. Co. v. Schmidt, 177 U.S. 230, 20

Sup. Ct. 620, 44 L. Ed. 747...

Pennoyer v. Nef, 95 U. 8. 714, 24 L. Ed. 565.

Postal Tel.Cable Co. v. Newport, 247 U. 8. 464, 38

Sup. Ct. 566, 62 L. Ed. 1215

Powell yv. Alabama, 287 U.S. 45 .

Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L.

Ed. 896.....

Simon v. Craft, 182 U. Ss. 427, 21 Sup. Ct. 836, 45

L. Ed. 1165 .

Snyder v. Massachusetts, 291 U. 8. 97

Twining v. New Jersey, 211 U. 8. 78

Washington ex rel. Oregon R. and Nav. Co. v. Fair-

child, 224 U. 8. 510

Windsor v. McVeigh, 93 U.S. 274, 23 L. Ed. 914

Sratrutes Crrep

Constitution of the United States:

Fifth Amendment

Sixth Amendment

Fourteenth Amendment

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 201

GRACE McNAMARA, ET AL.,

Appellant,

vs.

THE SALVATION ARMY, INCORPORATED,

a CorporaTION

BRIEF OF APPELLANT IN OPPOSITION TO MOTION

OF APPELLEE TO DISMISS

I

Appellee, in Point I in its motion to dismiss, contends

that this appellant has omitted from her jurisdictional

statement the specification required in Rule 12 of the Ruies

of this Honorable Supreme Court as to the ‘‘stage’’ of pro-

ceedings in the court of first instance, at which, and the

manner in which, the Federal questions sought to be re-

viewed were raised.

Appellee omits entirely from consideration the legal fact

that THIS APPELLANT HAS APPEALED TO THIS HONORABLE SUPREME

COURT BECAUSE SHE WAS DENIED ANY TRIAL WHATEVER IN THE

COURT OF FIRST INSTANCE. It is apparent that no Federal

2

question could be raised in the court of first instance since

there were no proceedings therein as concerns this appel-

lant by way of a trial therein.

That the opportunity to be heard is an essential requisite

of due process of law in judicial proceedings is a matter

of uniform and long established holding by this Honorable

Supreme Court. Postal Tel.-Cable Co. v. Newport, 247

U. S. 464, 38 S. Ct. 566, 62 L. Ed. 1215; Windsor v. McV oigh,

93 U. S. 274, 277, 23 L. Ed. 914, 915; Louisville & N. R. Co.

v. Schmidt, 177 U. S. 230, 236, 20 S. Ct. 620, 44 L. Ed. 747,

750; Simon v. Craft, 182 U. S. 427, 436, 21 S. Ct. 836, 45

L. Ed. 1165, 1170.

I

In Point II of its motion to dismiss, appellee declares

that the record presented by the appellant does not show

that a Federal question was raised and decided adversely,

nor that a Federal question was presented in, and expressly

or necessarily decided by the Supreme Court of Kansas.

Appellee thereby seeks to avoid and deviate from the

record in this case and the certificate of the Honorable

W. W. Harvey, Presiding Justice of the Supreme Court of

the State of Kansas, who certified that in the appeal pre-

sented by this appellant to said Supreme Court of Kansas,

‘*a question whether the actions, rulings and/or refusals of

the Judge of the trial court to act or rule upon the appli-

cations of the petitioner herein, as defendant therein, con-

stituted a denial of due process of law guaranteed under

the provisions of Articles 5 and 6 and the 14th Amendment

to the Constitution of the United States, was ARGUED IN THE

BRIEF OF APPELLANT . . . AND WAS NOT CONSIDERED OR

PASSED UPON BY THIS COURT.”’

This appellant has brought this appeal to the Honorable

Supreme Court of the United States by reason of the failure

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_

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and refusal of the Supreme Court of Kansas to consider or

pass upon the constitutional question presented to them.

Appellant believes, and in view of the rulings of the Su-

preme Court of the United States, such a Federal question

should not have been ignored, passed, or refused considera-

tion by the Supreme Court of Kansas, thus making neces-

sary this appeal upon said point to this Honorable Supreme

Court of the United States. Pennoyer v. Neff, 95 U. S. 714,

94 L. Ed. 565, 572; Scott v. McNeal, 154 U. S. 34, 46, 14

S. Ct. 1108, 38 L. Ed. 896, 901; Coe v. Armour Fertilizer

Works, 237 U.S. 413, 423, 35 S. Ct. 625, 59 L. Ed. 1027, 1031;

Postal Tel.-Cable Co. v. Newport, supra.

Ill

Appellee, in Points IV and V of its motion to dismiss,

declares that the Supreme Court of Kansas rested its

judgment upon non-federal ground adequate to support it.

This appellant contends that said motion of appellee to dis-

miss should be denied for the very reason stated in its

motion, to wit, that a Federal question, and the claim that

this appellant was denied due process of law by and through

the refusal of the trial court to permit this appellant to be

heard therein, was not only presented to the Supreme Court

of Kansas, but was entirely ignored and not passed upon

by said court. Appellant further urges that while a decision

by a State court on a Federal question may not be necessary

to a determination of a cause as concerns other factors

therein, that the guarantee of ‘‘due process of law’’ is of

sufficient importance as to require consideration as to

| whether such constitutional guarantee was complied with

or afforded a litigant and is not to be lightly brushed aside

| as is indicated in the certificate of the presiding justice of

the Supreme Court of Kansas that the question was raised,

4

but was not ‘‘considered or passed upon’’ by said Honorable

Supreme Court of Kansas.

Albrecht v. U. S., 273 U. 8. 1, 8, 47 8. Ct. Rep. 250;

Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 49S. Ct.

Rep. 57;

Snyder v. Massachusetts, 291 U. 8. 97, 122;

Powell v. Alabama, 287 U. 8. 45, 68;

Galpin v. Page, 18 Wall. 350, 368, 369 ;

Baldwin v. Hale, 1 Wall. 223, 233;

Twining v. New Jersey, 211 U. 8. 78, 110;

Washington ex rel. Oregon R. and Naw. Co. v. Fair-

child, 224 U. S. 510;

Coe v. Armour Fertilizer Works, 237 U. 8. 413, 419.

Conclusion

It will appear affirmatively from the record herein that

this appellant has complied strictly with the requisites of

Section 1 of Rule 12 of this Honorable Supreme Court; that

since this appellant was not afforded a trial or an oppor-

tunity to be heard in the court of first instance, this appel-

lant raised the Federal question sought to be reviewed by

ASSIGNMENT OF ERRORS ON APPEAL.

Since the Federal question sought to be reviewed was not

considered or passed upon by the Honorable Supreme

Court of the State of Kansas, a constitutional Federal ques-

tion is involved in this appeal, and the motion of appellee

to dismiss should be denied.

Dated this 13th day of June, 1947.

Grace McNamara,

Petitioner and Appellant in Propria Persona.

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