Petition for Writ of Certiorari — Bower v. Bower

Supreme Court, u.s

FILED 7+

PSE 2 $B san 1 8 199%

OFFICE OF THE CLERK

No.

In The

Supreme Court of the Gnited States

OCTOBER TERM, 1995

DANIEL R. BOWER,

Petitioner,

v.

JOYCE A. BOWER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE OHIO COURT OF APPEALS

FOR THE SIXTH DISTRICT

PETITION FOR WRIT OF CERTIORARI

Walton Halleck Donnell

Counsel of Record

17980 US 23

P.O. Box 58

Woodville, OH 43469

Phone: (419) 849-3252

January 31, 1996

On

i

QUESTION PRESENTED

Whether petitioner was denied procedural due process

protected by the Fourteenth Amendment where the state's

supreme court did not "review [for] final determination" his

conflict-of-law case certified to it by a court of appeals

pursuant to, and required by, the State Constitution, nor even

notify petitioner that his conflict case was not going to be

reviewed, where Article IV, Section 3(B)(4) of said

constitution vests exclusive authority in "the judges of a court

of appeals [to] find that a judgment upon which they have

agreed is in conflict with a judgment pronounced upon the

same question by any other court of appeals of the state, the

judges shall certify the record of the case to the supreme court

for review and final determination," and where, after inquiry,

petitioner was informed by the Clerk that "the Supreme Court

is vested with jurisdiction only when an interested party files

the order certifying the conflict with the court [within] 30

days,” despite petitioner's brief for reconsideration which

stated that "on a federal constitutional level, ‘both liberty and

property are specifically protected by Fourteenth Amendment

against any state deprivation which does not meet standards of

due process, and such protection is not to be avoided by

simple label that state chooses to fasten upon its conduct or its

Statute,’ " citing "Glaccio v. State of Pa., 86 S. Ct. (1966),

382 U.S. 399, 15 L.Ed. 2d 447."

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TABLE OF CONTENTS

Page

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Constitutional Provisions, Statutes, Rules involved ......... 2

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Appendix

A. Entry of Supreme Court of Ohio, 9/20/95............ 9

B. Entry of Supreme Court of Ohio, 7/19/95.......... 10

C. Decision and Judgment Entry of Ohio Court of ......

Ancals For Siti DAR os ieee cscevccecccscees 1]

D. Notice of Appeal to the Supreme Court of

The United States, filed 9/29/95 .............0000000: 12

E-1. Letter to Clerk, Supreme Court of Ohio........... 13

E-2. Letter from Clerk, SUpreme Court of Ohio....... 14

E-3. Ohio Supreme Court Rule IV ....................565 15

*28 U.S.C. §2403(b) may be applicable.

ill

TABLE OF AUTHORITIES

CASES

Page

Board of Regents v. Roth, 408 US 564

(1972), 33 L Ed2d548, 92 S Ct 2701:....... 8

City of Akron v. Roth, 88 Ohio St 456, 103 N.E. 465:...7

Crawford v. Weidemeyer (1916), 93 Ohio St. 461,

EES Peace cnantikinsadnvcssthiceieueeeeea e

Duncan vy. State, Ex Rel Williams (1928),

119 Ohio St. 453, 164 N.E. 527:............. 7

Glaccio v. State of Pa., 382 US 399 (1966),

PPM CR ek.) 8

STATUTES

Ohio Revinndl Cae S Si .5a Fi cian vi ch ietiscividsctaditocres 3

sep ME Se OO By) RE erent ein tee 2

RULES

Ohio Supreme Court Practice Rule [V:..................0eees 2

CONSTITUTIONS

United States: Fourteenth Amendment Due Process:....... l

Ohio: Pee FV: ee asx ois cdc ni kcoendeoeccces) Z

PSE FE PE, civctievivsconko da katate 2

1

IN THE SUPREME COURT OF THE UNITED STATES

October term, 1995

Daniel R. Bower,

Petitioner,

v.

Joyce A. Bower,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR THE SIXTH DISTRICT

Daniel R. Bower, petitioner herein, respectively prays that

a writ of certiorari issue to review the conduct of the Ohio

Supreme Court in avoiding addressing the Fourteenth

Amendment Due Process issue raised and briefed to said

court, as seen by its Reconsideration Entry entered in the

above-entitled case on September 20, 1995, which was the

first time in the proceedings that said due process issue could

have been raised by petitioner.

OPINIONS BELOW

The September 20, 1995, "RECONSIDERATION

ENTRY" stating only "IT IS ORDERED by the Court that the

motion for reconsideration be, and hereby is, denied" and

signed by Thomas J. Moyer, Chief Justice, Case No. 95-734,

is unreported, and is reprinted in Appendix herein at A, and

said entry's avoidance of petitioner's "Fourteenth Amendment

Due Process" question is herein sought to be reviewed.

(Emphasis in original.) The prior entry of the Ohio Supreme

Court, dated July 19, 1995, Case No. 95-734, is unreported,

and is reprinted in the Appendix herein at B. The Decision

and Judgment Entry of the Court of Appeals of Sandusky

County, Sixth District, dated April 7, 1995, finding "that our

decision in Bower v. Bower is in conflict with the judgment

pronounced on the same question by the Courts of Appeal for

the Fourth District ***and the Eleventh District,” is

unreported, and is reprinted in the Appendix at C, Case No.

S-94-014.

STATEMENT OF JURISDICTION

The Reconsideration Entry of the Ohio Supreme Court

was entered on September 20, 1995. The jurisdiction of this

Court is invoked pursuant to Title 28, United States Code,

Section 1257, subparagraph (a). A Notice of Appeal To The

Supreme Court of The United States was filed in the Supreme

2

Court of Ohio on September 29, 1995, Case No. 95-734,

Appendix D.

An Application For An Extension of Time for a period of

30 days was granted by the Honorable Justice Stevens on

December 20, 1995, to January 18, 1996, No. A-530.

CONSTITUTIONAL PROVISIONS,

STATUES AND RULES INVOLVED

1. United States Constitution, Fourteenth Amendment:

"{N]or shall any state deprive any person of life, liberty,

or property, without due process of law;"

to

. Ohio Constitution, Article IV, § 3(B)(4):

"Whenever the judges of a court of appeals find that a

judgment upon which they have agreed is in conflict

with a judgment pronounced upon the same question

by any other court of appeals of the state, the judges

shall certify the record of the case to the supreme

court for review and final determination."

3. Ohio Constitution, Article IV, § 5(B):

"The supreme court shall prescribe rules governing

practice and procedure in all courts of this state,

which rules shall not abridge, enlarge, or modify any

substantive right."

4. Ohio Supreme Court Rule IV:

"SECTION 1. Filing of Court of Appeals Order

Certifying a Conflict.

"When a court of appeals issues an order certifying a

conflict pursuant to Article IV, Section 3(B)(4) of the

Ohio Constitution, any interested party to the

proceeding may institute an appeal by filing a copy of

the order in the Supreme Court, along with copies of

the opinions of the conflicting courts of appeals. The

party that files the order certifying a conflict shall be

considered the appellant. Failure to file the court of

appeals order certifying a conflict within 30 days after

the date of such order shall divest the Supreme Court

of jurisdiction to consider the order certifying a

conflict.” (The entire text of Rule IV is reprinted in

the Appendix at E3.)

STATEMENT OF THE CASE

3

On November 5, 1992, an amended version of Revised

Code § 3105.171 [Equitable division of marital and separate

property] became effective in Ohio. Subsequently, petitioner

filed for and was granted a divorce from Respondent, she

receiving a five-acre parcel of land under Ohio's new law. On

an appeal as of right, the Sixth District Court affirmed, but

certified the record to the Ohio Supreme Court for "review and

final determination, pursuant to section 3(B)(4), Article IV,

Ohio Constitution.” Its Decision and Judgment Entry,

journalized April 12, 1995, is in the Appendix at C, stating in

part, “this court finds that our decision in Bower v. Bower is

in conflict with the judgment pronounced on the same

question by the Courts of Appeal for the Fourth

District***and the Eleventh District." In the meantime, to be

timely, petitioner had filed a jurisdictional memorandum in the

Ohio Supreme Court with his Notice of Appeal, on the face of

which, was endorsed the words, "Motion To Certify A

Conflict Is Pending In The Court Of Appeals.” Without any

reference to the Sixth District Court's order certifying the

record to it, the Supreme Court stated in its Entry of July 19,

1995:

"Upon consideration of the jurisdictional memorandum

filed in this case, the Court declines jurisdiction to hear

the case and dismisses the appeal as not involving any

substantial constitutional question." (Reprinted in

Appendix at B.)

Petitioner immediately wrote to the Clerk, dated July 24,

1995:

"I received your notice of dismissal of the jurisdictional

appeal in Bower v. Bower, dated July 19, 1995, Case

NO. 95-734. "My question is: has the Supreme Court

made any ‘determination’ yet in Bower v. Bower

regarding the conflict of law issue? If so, I have never

received any notice to date. Please advise.”

(Reprinted in full in Appendix at El.)

The Clerk responded by letter, dated July 26, 1995:

"A search of the court's docket does not indicate that

there is a certified conflict proceeding involving the

above-named matter pending before the Supreme Court.

"Please be advised that an order certifying a conflict does

not come before the Supreme Court automatically upon

an appellate court's certification of the conflict. Pursuant

4

to S.Ct.Prac.R.I[V(1), the Supreme Court is vested with

jurisdiction only when an interested party files an order

certifying the conflict with the court. Failure to file the

order within 30 days divests the Supreme Court of

jurisdiction to consider the conflict." (Reprinted in full,

Appendix E2.)

Petitioner timely filed a Motion For Reconsideration, raising,

for the first time possible, his federal question, with the

following words:

"ARGUMENT IN SUPPORT OF

RECONSIDERATION

"Constitutional Violation No. 1: Supreme Court Practice

Rule IV [Failure to file the court of appeals order

certifying a conflict within 30 days after the date of such

order shall divest the Supreme Court of jurisdiction to

consider the order certifying a conflict] is unconstitutional

on its face as it diminishes the exclusive grant of power

given to courts of appeals in the Ohio Constitution,

Article IV, Section 3(B)(4).' (Page i, Motion For

Reconsideration. )

"Clearly, the Ohio Supreme Court cannot diminish the

exclusive grant of power given to an inferior court of

appeals in the Ohio Constitution. That is

unconstitutional. .*** (Page 4.)

"Further, on a federal constitutional level, 'both liberty

and property are specifically protected by Fourteenth

Amendment against any state deprivation which does not

meet standards of due process, and such protection is not

to be avoided by simple label that state chooses to fasten

upon its conduct or its statute.' Glaccio v. State of Pa.,

86 S. Ct. 518 (1966), 382 U.S. 399, 15 L.Ed.2d 447.

This infringement of the court of appeals’ grant of power

to have its certified case of conflict reviewed in the

Supreme Court in turn infringes upon an Ohio litigant's

right to have his 'certified' case reviewed by the Supreme

Court, thereby diminishing his right under the Ohio

Constitution without due process under the Fourteenth

Amendment. Whether one judges the restrictive rule (IV,

Section 1) by the Federal or State Constitution, it simply

cannot pass constitutional muster. The Supreme Court

simply cannot constitutionally diminish a litigant's right

under the Ohio Constitution to have his certified case

5

from the court of appeals reviewed in the Supreme Court

because of the requirements of a 30-day-diminishing-

right rule whose only justification, as a procedural rule,

would be that of notice from a litigant--'interested party'--

yet here no notice is needed, or required by the Court of

Appeals or the Ohio Constitution." (Page 5, Motion For

Reconsideration.)

These excerpts from petitioner's Motion For

Reconsideration clearly raised, for the first time possible, his

federal question under the Fourteenth Amendment yet Ohio's

highest court did not address his federal question at all,

avoiding it completely as shown by its Entry on September

20, 1995, no hearing, no opinion, at Appendix A:

"IT IS ORDERED by this Court that the motion for

reconsideration in this case be, and hereby is, denied."

REASONS FOR GRANTING THE WRIT

The conduct of the Ohio Supreme Court is enacting and

applying, its Rule IV, as evidenced by its two Entries on

September 25, 1995, and July 19, 1995, should be reviewed

by this Court because said conduct and rule violate the greatest

contract that each and every Ohio citizen has with the State of

Ohio, i.e., the consensual and constructive contract known as

the Ohio Constitution.

The Ohio, and every State, Constitution is a consensual

contract because there are no external formalities or symbolic

acts to fix the obligation between the State, on one side of the

contract, and its millions of citizens on the other side. By

either being born in, or moving into and taking up a

household or business or both, the domiciled persons fix their

obligations and rights with the State.

The Ohio, and every State, Constitution is a constructive

contract with its millions of citizens because each state

constitution is the supreme law of that state, prescribing rights

and liabilities of the state and its citizens who have not in

reality entered into a real contract at all, but circumstances

between a state and one of its citizens, from time to time,

make it only just that one should have a right, and the other a

liability.

"CONSTITUTION. In American Law. The written

instrument agreed upon by the people of the Union or a

particular state, as the absolute rule of action and decision

for all departments and officers of the government in

6

respect to all the points covered by it, which must control

until it shall be changed by the authority which

established it, and in opposition to which any act or

ordinance of any such department or officer is null and

void." Cooley, Constitutional Limits 3. (Emphasis

added.)"

Supreme Court Practice Rule [V(1), reprinted in full at

Appendix E3 and E4 is clearly “null and void", where on its

face, it severely and unnecessarily diminishes Ohio citizens’

right to have their certified conflict-of-law cases "review(ed)

[for] final determination." Rule IV (1) is clearly "null and

void" as shown by this section of the Ohio Constitution,

Article [V, § 5(B):

“The supreme court shall prescribe rules governing

practice and procedure in all courts of this state, which

rules shall not abridge, enlarge, or modify any

substantive right.”

And Article IV, § 3(B)(4) states:

(4) Whenever the judges of a court of appeals find that a

judgment upon which they have agreed is in conflict with

a judgment upon the same question by any other court of

appeals of the state, the judges shall certify the record of

the case to the supreme court for review and final

determination.”

This section of the Ohio Constitution--the consensual

contract between Ohio and its citizens--has two clear-cut

provisions which clearly require (1) that the judges of a court

of appeals "shall certify the record of the [conflict of law] case

to the supreme court" and (2) the supreme court "review [it

for] final determination.”

The Sixth District Court of Appeals "certif(ied) the record

of [petitioner's] case to the supreme court" by order

journalized on April 12, 1995. The Supreme Court of Ohio

never "“review(ed) it [it for] final determination." Result?

Ohio's new law on marital property, both real and personal, is

still uneven in Ohio as the Sixth District Court found its

decision, in the case at bar, in conflict with two other sister

courts, the Fourth and the Eleventh.

The plain purpose of this particular section of the Ohio

Constitution is that the law in Ohio be even among its citizens

living in its 12 districts. And since the Supreme Court of

7

Ohio is the only court in Ohio that has authority to make the |

law even in all 12 districts of Ohio, why would it make a

diminishing-right rule forcing an intermediary--"any interested

party"-- to file the court-of-appeals certification order to the

supreme court when the simplest, surest, most direct way to

get the conflict of law order to the Supreme Court is a rule

directing the court of appeals to file the order.

For due process purposes, where is the compelling

interest necessary for a state rule of court to infringe upon the

fundamental right of all citizens to have the law even among

the citizenry? That the present day 30-day time limit is

arbitrary can be seen from the language of one of several Ohio

cases that deal with the matter, Duncan v. State, Ex Rel

Williams (1928) 119 Ohio St. 453, 164 N.E. 527, opinion

per Marshall, C.J., at 456:

"It will be seen that no time is fixed by the Constitution

within which the case must be docketed in the Supreme

Court. In City of Akron v. Roth, 88 Ohio St., 456, 103

N_E.. 465, this court arbitrarily fixed a limitation of 70

days for filing a motion to certify, and at a later date this

court established a rule requiring such motion to be filed

within 30 days after the entry of judgment in the Court of

Appeals. In Crawford v. Weidemeyer, 93 Ohio St, 461,

113 N.E., 267, this court again arbitrarily fixed a

limitation of 70 days within which a petition in error must

be filed in this court where the cause has been certified on

the ground of conflict.” (Emphasis added to the court's

language, arbitrarily.)

Several Supreme Court cases have taken up the arbitrary

70-down-to-30-days time limit rule of Ohio's highest court,

going back to 1916, but petitioner has not found a compelling

interest necessary for the State of Ohio to require “any

interested party” to file the certification order in the supreme

court rather than have the court of appeals itself file the order,

an inferior court directly to the supreme court, both courts

having a duty to each other and the Ohio citizens in Article IV,

§ 3(B)(4).

Another reason for this Court to grant certiorari is that

petitioner's case is important to the public, not just to himself

as a party. For this Court to allow said Rule [V(1) to stand is

to allow the Supreme Court to be superior to Ohio law, the

Ohio Constitution itself, the consensual contract between the

8

State and its citizens. Since Board of Regents v. Roth, 408

US 564, 33 L Ed 2d 548, 92 S Ct 2701 (1972), this Court

has granted certiorari to a number of contract cases where a

question of procedural due process was raised as involving

“interests encompassed within the Fourteenth Amendment's

protection of liberty and property,” Roth, supra.

And time will not “further illume or completely outmode”

the procedural due process issue in the case at bar. Petitioner

believes the Ohio cases on Rule IV(1) since 1916 show that

with clarity.

CONCLUSION

For the foregoing reasons, the petitioner prays that his

petition for a writ of certiorari be granted.

Respectively submitted,

Walton H. Donnell

Counsel For Petitioner

Date: January 31, 1996.

APPENDIX

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The Supreme Court of Ohio

1995 TERM

To wit: September 20, 1995

Daniel R. Bower, Case No. 95-734

Appellant,

v. RECONSIDERATION ENTRY

Joyce A. Bower, (Sandusky County)

Appellee.

IT IS ORDERED by the Court that the motion for

reconsideration in this case be, and hereby is, denied.

(Court of Appeals No. $9414)

"s/Thomas J. Moyer"

THOMAS J. MOYER

Chief Justice

ne ener net

10

The Supreme Court of Ohio

1995 TERM

To wit: July 19, 1995

Daniel R. Bower :

Appeilant, Case No. 95-734

Vv. ENTRY

Joyce A. Bower

Appellee.

Upon consideratiou vi the jurisdictional memoranda filed

in this case, the Court declines jurisdiction to hear the case and

dismisses the appeal as not involving any substantial

constitutional question.

COSTS:

Docket Fee, $40.00, paid by Walton R. Donnell, Esq.

(Sandusky County Court of Appeals; No. $9414)

"s/Thomas J. Moyer"

THOMAS J. MOYER

Chief Justice

11

IN THE COURT OF APPEALS OF SANDUSKY COUNTY

Daniel R. Bower Court of Appeals No. S-94-014

Appellant

v. Trial Court No. 93-DR-760

Joyce A. Bower

Appellee DECISION AND JUDGMENT ENTRY

Decided: APR 7, 1995

Linda S. Connors Journalized

Clerk April 12, 1995 Vol. 21 Pg. 184

This case is before the court on appellant's "Motion to

Certify A Conflict,” filed on March 6, 1995.

Upon consideration thereof this court finds that our

decision in Bower v. Bower is in conflict with the judgment

pronounced on the same question by the Courts of Appeal for

the Fourth District, sitting in Scioto County, in the case of

Brown v. Brown (Mar. 6, 1992), Scioto App. Nos. 1974,

1977, unreported and the Eleventh District, sitting in

Ashtabula County, in the case of Kampf v. Kampf (May 3,

1991), Ashtabula App. No. 90-A-1503.

The question on which the conflict exists is whether or not

the conveyance of real property to a husband and wife as joint

tenants with rights of survivorship under the circumstances as

established by the facts of Bower v. Bower resulted in the

property conveyed being marital property as a matter of law.

Accordingly, this court hereby certifies the record of this

case to the Supreme Court of Ohio for review and final

determination, pursuant to section 3 (B) (4), Article IV, Ohio

Constitution.

George M. Glasser, J. "s/George M. Glasser"

JUDGE

Charles D. Abood, P.J. "s/Charles D. Abood"

JUDGE

Melvin L. Resnick, J. "s/Melvin L. Resnick"

CONCUR. JUDGE

D

12

IN THE SUPREME COURT OF OHIO

Daniel R. Bower, Case No. 95-734

Appellant,

v. NOTICE OF APPEAL

TO THE SUPREME COURT

Joyce A. Bower, OF THE UNITED STATES

Appellee. FILED SEP 29 1995.

Notice is hereby given that Daniel R. Bower, the appellant

above-named, hereby appeals to the Supreme Court ot the

United States from the final judgment of the Supreme Court of

Ohio dated July 19, 1995 (and its reconsideration entry dated

September 20, 1995) declining to hear appellant's case and

dismissing his appeal "as not involving any substantial

constitutional question."

This appeal is taken pursuant to Title 28, United States Code,

Section 1257, subparagraph (a).

Dated September 29, 1995.

Walton H. Donnell (Reg. No. 0020371)

Counsel For Appellant

17980 US 23

P.O. Box 58

Woodville, OH 43469

Phone: (419) 849-3252

PROOF OF SERVICE

A copy of the foregoing Notice of Appeal to the UNited States

Supreme Court was sent by regular U.S. Mail, postage

prepaid, to Frederic Matthews, counsel for appellee, 100 S.

Main Street, Bowling Green, OH 43402, this 29th day of

September 1995.

"s/Walton H. Donnell"

Walton H. Donnell

E-1

13

Law Offices

WALTON H. DONNELL, ATTORNEY

PERSONAL INJURY, PROBATE, WILLS

REAL ESTATE

17980 US 23, P.O. BOX 58

WOODVILLE, OH 43469

PHONE: (419) 849-3252

July 24, 1995

Marcia Mengel, Clerk

Supreme Court of Ohio

30 E. Broad St.

Columbus, OH 43266

RE: ENTRY OF SUPREME COURT DATED JULY 19,

1995 IN BOWER v. BOWER CASE TO SUPREME

COURT BY SIXTH DISTRICT COURT OF

APPEALS, DATED APRIL 7, 1995

Dear Ms. Mengel,

I received your notice of the dismissal of the jurisdictional

appeal in Bower v. Bower, dated July 19, 1995, Case No.

95-734.

Enclosed is a copy of a Decision and Judgment Entry, file

stamped April 7, 1995, of the Court of Appeals of Sandusky

County (Sixth District) that certified "the record of this case to

the Supreme Court of Ohio for review and final determination,

pursuant to section 3(B)(4), Article IV, Ohio Constitution.”

My question is: has the Supreme Court made any

"determination" yet in Bower v. Bower regarding the conflict

of law issue? If so, 1 have never received any notice to date.

Please advise.

Thank you for your attention to this matter, and a

response.

Yours truly,

"s/Walton H. Donnell"

Walton H. Donnell

14

The Supreme Court of Ohio

July 26, 1995

Walton H. Donnell

17980 U.S. 23

Woodville, Ohio 43469

Re: Daniel R. Bower v. Joyce A. Bower, Sandusky County

Court of Appeals Case No. S-94-014

Dear Mr. Donnell:

A search of the court's docket does not indicate that there

is a certified conflict proceeding involving the above-named

matter pending before the Supreme Court.

Please be advised that an order certifying a conflict does

not come before the Supreme Court automatically upon an

appellate court's certification of the conflict. Pursuant to S.

Ct. Prac. R. IV(1), the Supreme Court is vested with

jurisdiction only when an interested party files the order

certifying the conflict with the court. Failure to file the order

within 30 days divests the Supreme Court of Jurisdiction to

consider the conflict.

Sincerely,

"s/Regina M. Koehler"

Regina M. Koehler

Deputy Clerk

/rmk

E-3

15

RULE IV. CERTIFICATION BY

COURT OF APPEALS BECAUSE OF CONFLICT

Section I. Filing of Court of Appeals Order Certifying a

Conflict.

When a court of appeals issues an order certifying a

conflict pursuant to Article IV, Section 3(B)(4) of the Ohio

Constitution, any interested party to the proceeding may

institute an appeal by filing a copy of the order in the Supreme

Court, along with copies of the opinions of the conflicting

courts of appeals. The party that files the order certifying a

conflict shall be considered the appellant. Failure to file the

court of appeals order certifying a conflict within 30 days after

the date of such order shall divest the Supreme Court of

jurisdiction to consider the order certifying a conflict.

Section 2. Supreme Court Review of Court of Appeais

Order Certifying a Conflict.

The Supreme Court will review the court of appeals order

certifying a conflict.

(A) If the rule of law upon which the alleged conflict

exists is not clearly set forth in the order certifying a conflict,

the Supreme Court may remand the case to the court of

appeals with an order that the court of appeals clarify the issue

presented.

(C) If the Supreme Court determines that a conflict exists,

it will issue an order finding a conflict, identifying those

issues raised in the case that will be considered by the

Supreme Court on appeal, and ordering those issues to be

briefed.

Section 3. Briefs; Supplement to the Briefs.

Within 40 days after the Supreme Court has issued an

order finding a conflict, the appellant shall file a merit brief, in

conformance with S. Ct. Prac. R. VI, and a supplement, in

conformance with S. Ct. Prac. R. VII. The parties shall

otherwise comply with the requirements of S. Ct. Prac. R. VI

and VII. In their merit briefs, the parties shall brief the issues

16

identified in the order of the Supreme Court as issues to be

considered on appeal.

Section 4. Effect of Pending Motion to Certify a Conflict

Upon Discretionary Appeal or Claimed Appeal of Right Filed

in Supreme Court.

(A) If a party has perfected a discretionary appeal or a

claimed appeal of right with the Supreme Court in accordance

with S. Ct. Prac. R. II, Section 2 (A), but also has timely

moved the court of appeals to certify a conflict in the case, that

party shall file a notice with the Supreme Court that a motion

to certify a conflict is pending in the court of appeals. The

Supreme Court will stay consideration of the jurisdictional

memoranda filed in the discretionary appeal or claimed appeal

of right until the court of appeals has determined whether to

certify a conflict in the case.

(B) If the court of appeals determines that a conflict does

not exist, the party that moved the court of appeals to certify a

conflict shall file a notice of that determination with the

Supreme Court within 12 days after the date of the court of

appeals entry. In accordance with S. Ct. Prac., R. Ill, the

Supreme Court will consider the jurisdictional memoranda

filed in the discretionary appeal or the claimed appeal of right.

(C) If the court of appeals certifies the existence of a

conflict and a copy of the court of appeals order is filed with

the Supreme Court in accordance with Section | of this rule,

the Supreme Court will consolidate the certified conflict case

with the discretionary appeal or the claimed appeal of right.

The Supreme Court will review the court of appeals order

certifying a conflict when it reviews the jurisdictional

memoranda filed by the parties. In accordance with Section 3

of this rule and S. Ct. Prac. R. III, Section 3, the Supreme

Court will issue an order determining both whether a conflict

exists and whether to allow the discretionary appeal or the

claimed appeal of right.