Petition for Writ of Certiorari — Tolbert v. Tolbert ex rel. Estate of Key

No. 04-

IN THE

Supreme Court of the United States

DARRYLTOLBERT,

Petitioner,

v.

THE ESTATE OF ANNA JANE KEY,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

ALABAMA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

Myron ALLENSTEIN

ALLENSTEIN & ALLENSTEIN, LLC

141 South 9th Street

Gadsden, AL 35901

(256) 546-6314

Counsel for Petitioner

193082 cA

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTIONS SUBMITTED FOR REVIEW

Whether Silver v. Silver, 280 US 117, 50 S. Ct. 57 (1929)

is binding precedent as to whether state guest statutes

which distinguish between passengers and guests for

liability purposes do not violate the Equal Protection

Clause of the 14° Amendment or whether the case should

be overruled.

Whether the Alabama Guest Statute violates the

Equal Protection Clause of the 14" Amendment of the

U.S. Constitution.

Whether the Alabama Guest Statute violates the Equal

Protection Clause of the 14° Amendment as applied to a

14 year old passenger in a car driven by a caregiver when

the caregiver negligently operated a vehicle resulting in

the death of the minor.

ii

TABLE OF CONTENTS

Page

Questions Submitted for Review_............... i

Taphe Of Comet 25 6 cis ckek heer eee il

Table of Cited Awtnoritaes .... oa. cs cncaccdsceucse ill

Table of Appelt 2. 06 i4 ieee Vill

Opinions Below and Statement of Jurisdiction .... l

Constitutional and Statutory Provisions ......... |

Statement of Facts ee a 2

Reasons for Granting the Petition .............. 4

ii

TABLE OF CITED AUTHORITIES

Page

Cases: ’

Beasley v. Bozeman,

315 So.2d 570 (Ala. 1975) .................. 19

Behrns v. Burke,

229 N.W. 2d 86 (S.D. 1975) .......... Souewou 6

Bierkamp v. Rogers,

293 N.W. 2d 577 (579 (lowa 1980) ........ i> aes

Black v. Pike County Comm'n,

360 So.2d 303 (Ala. 1978) .................. 4

Brady v. Acs,

264 Ind. 285, 342 N.Ed. 2d 837,

Appeal dismissed, 429 U.S. 803 (1976) ....... 14

Brown v. Merlo,

8 Cal. 3d 855, 106 Cal. Rptr. 388, :

PU EB ONDIS) onc ccc ccccccccccecee 7, 16, 18

Cannon v. Oviatt,

520 P.2d 883 (Utah),

Appeal dismissed, 419 U.S. 810 (1974) ....... 6, 14

Corey v. Jones,

650 F.2d 803 (5" Cir. 1981) ................. 12, 15

Davis v. Cox,

268 Ark. 78, 80, 593 S.W.2d 180 (1980) ....... 5,15

iv

‘ Cited Authorities

Delany v. Badame,

~ 49 Ill.2d 168, 274 N.E. 2d 353 (1971) ...

Duerst v. Limbocker,

rn ee rn

Ex parte Branch,

526 So.2d 609 (Ala. 1987) ............

Ex parte Jackson,

516 So.2d.768 (Ala. 1986) ............

Ex parte Merlo,

735 So.2d 1172 (Ala. 1999) ...........

Henry v. Bauder,

213 Kan. 751, 518 P.2d 362 (i974) 2...

Hicks v. Miranda,

422 U.S. 332 3. Ct. (1975) 0... cc cceness

Hill v. Garner,

277 Or. 641, 561 P.2d 1016,

Appeal dismissed, 434 U.S. 989 (1977) ..

Johnson v. Hassett,

217 N.W. 2d 771 (N.D. 1974) ..........

Justice v. Gatchell,

329 A268 97 (DGLIGT4E) 2... cc ccccsaees

Wa

.. 14, 15, 16

et btn pith it)

Cited Authorities

Page

Laakonen v. Eighth Judicial District Court,

91 Nev. 506, 538 P.2d 574 (1975) ............ 7, 11

Keasling v. Thompson,

217 N.W. 2d 687 (Iowa 1974) .............4. 6

Lawrence v. Texas,

339 U.S. 358, 123 S. Ct. 2472 (2003) ......... 14, 21

Ludwig v. Johnson,

243 Ky. 534, 49 S.W.2d 347 (1932) .......... 6

Manistee Bank and Trust Co. v. McGowan,

394 Mich. 655, 232 N.Ws. 2d 636 (1975) ...... 6

McGeehan v. Bunch,

88 N.M. 308, 540 P.2d 238 (1975) ........... a a0

Nehring v. Russell,

Tae Cie ORL TOD eid carvdceneueess 6, 15

Neu v. Grant,

S48 F268 ZO CIO" Coe. F97TF. bg sic backs, 11,15

Pickett v. Matthews,

Fe. cee CAG: TOOOS ko kv d ccdatacxdnee 19

Pierce v. Bierrer,

447 A.2d 1189 (Del. 1982),

Appeal dismissed, 459 U.S. 1026 (1982) ...... id

Primes v. Tyler,

43 Ohio St. 2d 195, 331 N.E. 2d 723 (1975) ... 7

vi

Cited Authorities

Page

Ramey v. Ramey,

258 SE 2d 883 (S.C. 1979) .................. 7,8

Richardson v. Hansen,

527 P.2d 536 (Colo. 1974) .................. 6

Sides v. Majors,

429 U.S. 94S S. Ct. (1978) 0... ccc ccc cocce 15

Sidle v. Majors,

3S F260 1156 (7 Cie.) 2... ccc cocn 6, 10, 12, 15, 17

Silver v. Silver,

280 U.S. 117 S. Ct. (1929) . 2... passim

Thompson v. Hagan,

96 Idaho 19, 523 P.2d 1365 (1974) ........... 7,9

Tolbert v. Estate of Anna Jane Key,

2004 WL 2260379 ......................... l

Trimble v. Gordon,

430 U.S. 762, 97 S. Ct. 1459 (1977) .......... 20

White v. Hughes, ‘

257 Ark. 627, 519 S.W. 2d 70 (1975),

Appeal dismissed, 423 U.S. 805 (1975) ...... 5, 6, 14

Whitworth v. Bynum,

697 S.W. 194 (Texas 1985) ................. 18

ee

.

.

)

:

!

)

;

:

z

j

i

vil

Cited Authorities

Page

Statutes and Constitutionai Provisions:

14" Amendment to the U.S. Constitution ........ 3

Be a eT Gahxndk adasusekdekescetenen l

Article I, § 1, 6 & 22 Ala. Constitution .......... 3

i Gas Oe aE UNE cou bt cusesdsa biewees l

Pibn COGS S Ber reeks SECSISD oo bess cccacéracis 20

Publications:

Roberts, Cusimano

Alabama Tort Law 5.0, p. 5-2 ............... 9

Woods, James J.

Goodbye and Good Riddance,

16 Cumb.L.Rev. Vol. 16, 263-165 ............ 19

vill

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The Supreme Court Of

Alabama Dated October 8, 2004 ............. la

Appendix B — Minute Orders From The Circuit

ere Pee eee Mom 34a

Appendix © — Order Of The Supreme Court Of

Alabama Denying Petition For Rehearing Dated

ereCember 17, TORS ow ccc ccccccsvecccccecs 36a

Appendix D — Chronological Enactment And

Subsequent History Of Automobile Guest

NE <6 Wnea natal eudns acdsee eeek 37a

et gee ee ee a a eee OP ee eel

at

ei CA ate ey RE aS. GRIER BAA RO ME AM NS

I

OPINIONS BELOW AND

STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

Darryl Tolbert petitions for a Writ of Certiorari to review

the opinion of the Alabama Supreme Court regarding the

Alabama Guest Statute issued on 10/8/04, Tolbert v. Estate

of Anna Jane Key 2004 WL 2260379 Ala. The Application

for Rehearing was denied on 12/17/04.

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Alabam.. Guest Statute

The owner, operator or person responsible for the

operation of a motor vehicle shall not be liable

for loss or damage arising from injuries to or death.

of a guest' while being transported without

payment thereof in or upon said motor vehicle,

resulting from the operation thereof, unless such

injuries or death are caused by the willful or

wanton misconduct of such operator, owner or

person responsible for the operation of said motor

vehicle.

Ala. Code § 32-1-2 (1975), enacted 1935.

' The term “guest” is undefined in the statute.

2

14" Amendment - U.S. Constitution

§ 1. Rights of citizens; states not to abridge or deny.

No state shall make or enforce any law which shall

... deny to any person within its jurisdiction the

equal protection of the laws.

14" Amendment to the U.S. Constitution.

STATEMENT OF FACTS

1. Anna Key, the grandmother of Steven Tolbert a 14

year old minor, cared for Steven during the day. She was

Steven’s primary caregiver.

2. On 7/25/01, Anna Key accompanied by Steven Tolbert

drove Chris Givens, a minor, home.

3. On a sharp downhill double “S” curve, Anna Key lost

control of her vehicle which slid into the opposing lane of

traffic and collided with an oncoming vehicle, resulting in

the death of Steven Tolbert, Anna Key, and the driver of a

vehicle in the oncoming lane of traffic.

4. State Troopers who investigated the accident

concluded that Ms. Key’s “driving was improper for the

conditions.”

5. The Circuit Court in Alabama granted Summary

Judgment to the Estate on all claims including negligence, -

negligent supervision, and wantonness on the basis of the

Alabama Guest Statute.

3

6. Tolbert challenged the Constitutionality of the

Alabama Guest Statue at the trial level:

At a point in the proceedings, Darryl filed a

“Constitutional Challenge of the Guest Statute”

(Westlaw Opinion, p. 4 of 13)

Darryl contended that the guest statute violates

§§ 13 and 22 of the Alabama Constitution and

Amendment 14 of the United States

Constitution.

(Westlaw Opinion, p. 4 of 13)

7. On appeal, Tolbert again challenged the

constitutionality of the Alabama Guest Statute based on the

Equal Protection Clause of the Fourteenth Amendment and

on state constitutional grounds.

8. In upholding the Alabama Guest Statute, the Alabama

Supreme Court noted the binding effect of Silver:

In Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 74

L. Ed 221 (1929), the Supreme Court “found a

rational distinction between gratuitous passengers

in automobiles and guests in other modes of

transportation.”

(Westlaw Opinion p. 5 of 13)

> The Court acknowledged, without deciding, that a dispute

existed as to whether the Alabama Constitution provided Equal

Protection:

The question whether §§ 1, 6, and 22 of Article I,

Constitution of Alabama 1901, combine to guarantee the

(Cont’d)

i

4

9. Tolbert raised the Equal Protection issue again on

Application for Rehearing, which the Alabama Supreme

Court denied without opinion on 12/17/04.

REASONS FOR GRANTING THE PETITION

|. A split of decisions exists among the highest Appellate

Courts of the states as to whether the 1929 Silver decision is

binding precedent for holding that a state Guest Statute which

creates a legislative distinction between passengers and

guests for liability purposes does not violate the Equal

Protection Clause of the 14 Amendment. Three Circuit Court

of Appeals have held that Si/ver is binding precedent on the

issue.

2. The Alabama Supreme Court held that the Silver

decision was still valid precedent.

In Silver v. Silver, 280 U.S. 117, 50S. Ct. 57, 74

L. Ed 221 (1929), the Supreme Court “found a

rational distinction between gratuitous passengers

in automobiles and guests in other modes of

transportation.”

(Westlaw Opinion p. 5 of 13)

(Cont'd).

citizens of Alabama equal protection under the laws

remains in dispute. See Black v. Pike County Comm'n,

360 So.2d 303 (Ala. 1978); Ex parte Jackson, 516 SO.2d

768 (Ala. 1986), and Ex Parte Branch, 526 So.2d 609

(Ala. 1987) (implying that those provisions do provide

for equal protection); but see Ex parte Merlo, 735 So.2d

1172 (Ala. 1999).

(Opinion, p. 12)

* The Court acknowledged, without deciding, that a dispute

(Cont’d)

5

3. Fourteen other state appellate courts have agreed

that Silver is binding on the issue of equal protection

under the 14° Amendment including Arkansas*, Delaware’,

(Cont’d)

existed as to whether the Alabama Constitution provided Equal

Protection:

The question whether §§ 1, 6, and 22 of Article I,

Constitution of Alabama 1901, combine to guarantee the

citizens of Alabama equal protection under the laws

remains in dispute. See Black v. Pike County Comm'n,

360 So.2d 303 (Ala. 1978); Ex parte Jackson, 516 SO.2d

768 (Ala. 1986), and Ex Parte Branch, 526 So.2d 609

(Ala. 1987) (implying that those provisions do provide

for equal protection); but see Ex parte Merlo, 735 So.2d

1172 (Ala. 1999).

(Westlaw Opinion, p. 5 of 13)

* White v. Hughes, 257 Ark. 627, 628, 519 S.W. 2d 70, 71 (1975)

“. .. if the rule of Silver v. Silver supra, the highest authority on the

equal protection clause, ‘is to be changed and the strictures of the

Fourteenth Amendment extended in this area of the law, we shall

await the views of the United States Supreme Court on the

subject.”

Davis v. Cox, 593 S.W. 2d 180 (Ark. 1980) “. . . the Arkansas

guest statute is not contrary to the Fourteenth Amendment to the

United States Constitution.”

* Justice v. Gatchell, 325 A.2d 97 (Del.1974).

Pierce v. Bierer, 447 A.2d 1189 (Del. 1982) “... we find it

significant that Si/ver, decided in 1929, still remains the last word

by the U.S. Supreme Court on Automobile Guest Statutes in relation

to equal protection rights.”

6

lowa®, Kentucky’, Michigan*, Texas’, Utah'®, Wyoming'',

North Dakota'’, Oregon", Indiana'*, South Dakota's,

Colorado"® and Illinois'’. The highest appellate courts of most

of the above states have held that the state Guest Statutes are

* Keasling v. Thompson, 217 N.W. 2d 687 (lowa 1974).

Bierkamp v. Rogers, 293 N.W. 2d 577 (lowa 1980) “Due to the

aforementioned recent rulings of the United States Supreme Court

dismissing guest statutes appeals for want of a substantial federal

question, Si/ver v. Silver remains a dispositive of federal constitutional

grounds.”

’ Ludwig v. Johnson, 243 Ky. 534, 49 S.W.2d 347 (1932).

* Manistee Bank and Trust Co. v McGowan, 394 Mich. 655,

232 N.Ws. 2d 636 (1975).

* White v. Hughes, 257 Ark. 627, 519 S.W.2d 70 (1975).

'© Cannon vy. tas 520 P.2d 883 (Utah 1974) (citing Silver).

'' Nehring v. Russell, 582 P.2d 67 (Wy. 1978).

'? Johnson v. Hassett, 217 N.W. 2d 771 (N.D. 1974).

'S Duerst v. Limbocker, 525 P.2d 99 (Or. 1974).

'* Sidle v. Majors, 341 N.E.\2d 763 (Ind. 1976). Dempsey v.

Leanerdt, 341 N.E.2d 763 (1976).

'’ Behrns v. Burke, 229 N.W. 2d 86 (S.D. 1975).

'© Richardson v. Hansen, 527 P.2d 536 (Colo. 1974).

'’ Delany v. Badame, 49 Ill.2d 168, 274 N.E. 2d 353 (1971).

ee ee

7

unconstitutional on state constitutional grounds. Two of the

states, Illinois'* and Indiana,'? have significantly limited the

Guest Statute by statute.

4. Seven state Appellate Courts including New

Mexico’®, Nevada?', Ohio?*, Idaho”*, Kansas?*, California’,

and South Carolina*® have struck down Guest Statutes on

Federal Equal Protection grounds, holding that the Silver

case is not binding precedent on the equal protection issue.

State constitutional grounds were also relied upon.

'® Illinois: Act of July 2, 1931, 1931 Ill. Laws 779 (codified at

Ill. Ann. Stat. ch. 95 1/2, §10-201 (Smith-Hurd 1971)) — Amended

by Act of Sept. 8, 1971, no. 77-1482, 1971 Ill. Laws 2716 to apply

only to hitchhikers.

'9 Indiana: Act of Mar. 14, 1929, ch. 201, 1929 Ind. Acts 679

(codified at Ind. Code Ann. § 9-3-3-1 to -2 (Burns 1973)) — Amended

by Act of Mar. 1, 1984, P.L. 68-1984, §2, 1984 Ind. Acts 925, 925-

26 to apply only to hitchhikers and close relatives of hosts.

20 McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975)

*! Laakonen v. Eighth Judicial District Court, 91 Nev. 506, 538

P.2d 574 (1975)

22 Primes v. Tyler, 43 Ohio St. 2d 195, 331 N.E.2d 723 (1975)

> Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974)

4 Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974)

> Brown v. Merlo, 8 Cal.3d 855, 106 Cal. Rptr. 388, 506 P.2d

212 (1973)

6 Ramey v. Ramey 258 SE 2d 883 (S.C. 1979)

8

5. The decision of the South Carolina Supreme Court

in Ramey v. Ramey 258 S.E.2d 883 (SC.1979). is

representative of the states which have declared that the

Guest Statute violates the Equal Protection Clause of the

14" Amendment despite the Si/ver decision. The Supreme

Court of South Carolina held that Silver was not binding

because the Silver Court did not consider the two historical

justifications for the Guest Statute and because Silver was

decided on very narrow issues:

In Silver, the Supreme Court considered

whether the Connecticut guest statute

impermissibly distinguished gratuitous passengers

in automobiles from those in other classes

of vehicles. In upholding the statute’s

constitutionality, the Court stated:

“(Dt is not so evident that no grounds exist for

the distinction that we can say a priori that the

classification is one forbidden as without basis,

and arbitrary.’

The Silver case is distinguishable as it did not

consider the two historical justifications for the

guest statute to determine if there was a rational

connection between the objectives of the statute -

and the means provided to accomplish the

objectives. Moreover, in Silver, the plaintiff

attacked the statute solely on the ground that the

distinction drawn between automobile guests and

guests in other conveyances was impermissible.

In rejecting this limited argument, the Silver Court

approached the guest statute simply as one of the

many automobile regulatory measures then being

————— eee

SA PCTs Cel

9

enacted. As noted by the Supreme Court of Idaho

in a recent decision rejecting the constitutionality

of that state’s guest statute:

-’The Silver case appears to have taken

the approach that all regulations of

automobiles are constitutional without

examining the regulations in detail.’

Thompson v. Hagan, 96 \daho 19, 523

P.2d 1365, 1370 (1974).

Our view parallels those of other courts which

have held their guest statutes unconstitutional.

The 1929 Silver decision is neither persuasive

nor controlling due to its limited scope .. .

We affirm the trial court’s conclusion that Code

§ 15-1-290 violates the equal protection

guarantees of Article I, § 3 of the South Carolina

Constitution, and the Fourteenth Amendment

to the United States Constitution and apply this

holding with modified prospectively to all similar

pending and future actions.

6. Alabama is the only state in the nation with a

“full fledged” Guest Statute.

Of the thirty-three states’ that had guest laws,

only Alabama retains “its full-fledged version

Roberts, Cusimano. Alabama Tort Law 5.0, p. 5-2.

*” See Appendix for a chronological list of Enactment and

Subsequent History of Automobile guest Statues.

10

7. The 7° Circuit Court of Appeals in reviewing the issue

regarding the Indiana Guest Statute in Sidle v. Majors, 536

F.2d 1156 (7 Cir. 1977), cert. denied, 429 U.S. 945 expressed

grave doubts about the validity of Si/ver, but was “obligated”

— to recognize its binding effect:

Defendant’s chief reliance is upon a 1929 Supreme

Court decision where, without much discussion,

the Court held that a similar Connecticut statute

did not contravene the Equal Protection Clause.

Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57,

~ 74 L. Ed. 221. However, the rule of that case has

been so eroded by subsequent decisions (see, e.g.,

Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37

L. Ed 2d 63) that it should no longer control under

the Equal Protection Clause ...

The premises of Si/ver v. Silver, being no longer

valid in the light of modern authority, we believe

that on plenary review the Supreme Court would

not hold that Si/ver controls the question before

ee

We can find no necessary rational relation to a

legitimate state interest Reed v. Reed, 404 U.S.

71, 75-76, 92 S. Ct. 251, 253-254, 30 L. Ed. 2d

225, 229) that would require us to sustain the

legislation .. .

... despite our doubts about the current validity

of the rule in Silver v. Silver, supra, we are

obligated to affirm. Hicks v. Miranda, supra, 422

U.S. at 345, 95 S. Ct. at 2290, 45 L. Ed. 2d at 236

| 11

The frequency with which the question has arisen

and the disagreement among the courts attest to

| the importance of the issue, its difficulty and the

| need for conclusive resolution so that the present

viability of Silver v. Silver, can be authoritatively

determined.

8. The 10" Circuit Court of Appeals in reviewing the

Guest Statute of Wyoming in Neu v. Grant, 548 F.2d 281,

285 (10 Cir. 1977) expressed doubts regarding the validity

of Silver, but held it was binding precedent:

————eeEeEorr Se ee aay Stetina

—

“.. Therefore, despite our doubts about the

current validity of the rule in Silver v. Silver, supra,

we are obligated to affirm. Hicks v. Miranda,

supra, 422 U.S. at 345, 95 S. Ct. at 2290,

45 L. Ed. 2d at 236.

Although we are the first court of appeals to

consider the equal protection challenge to a guest

statute, the high courts of several states have

already grappled with the problem, and the split

among them has been noted (supra p. 1159).

Indeed, the Supreme Courts of Nevada and New

Mexico invalidated their states’ guest statues after

the Supreme Court of the United States acted in

Cannon. See Laakonen v. Eighth Judicial District

Court, supra; McGeehan v. Bunch, supra (88 N.M.

308, 540 P.2d 238 (1975)). The frequency with

which the question has arisen and the

disagreement among the high courts of several

states attests to the importance of the issue, its

difficulty and the need for conclusive resolution

12

so that the present viability of Silver v. Silver can

be authoritatively determined.” Sidle v. Majors,

$36 F.2d 1156 (7 Cir. 1976) at 1160.

9. The 3° Circuit Court of Appeals in Corey v. Tores,

650 F.2d 803, 805 (5 Cir. 1981) in reviewing the Georgia

Guest Statute stated that the analysis of Silver was

“antiquated,” but “still the law”:

Although the analysis in Silver is antiquated an

the decision has been subject to criticism by state

courts and members of the Supreme Court, it is

still the law. More recently, when the Supreme

Court was faced with appeals from three state

courts challenging similar guest passenger statutes

on similar grounds, the Court dismissed the

appeals on the ground that they lacked substantial

federal questions .. .

_ until the Supreme Court decides otherwise,

we conclude that Georgia’s Guest Passenger Rule

does not violate the equal protection clause of the

Fourteenth Amendment.

10. The only case in which the U.S. Supreme Court

addressed the issue of whether state guest statutes violated

Equal Protection was in 1929 in Silver v. Silver, 280 U.S.

117, 50 S. Ct. 57 (1929) when the Court considered whether

the Connecticut Guest Statute impermissibly distinguished

gratuitous passengers in automobiles from those in other

classes of vehicles. In holding that the Connecticut statute

did not deny equal protection under the 14" Amendment,

the Court limited its holding to the single question of

whether the distinction between gratuitous passengers in

13

automobiles and those in other classes of vehicles violates

equal protection:

As the record does not disclose the constitutional

grounds on which the appellant challenged the

validity of the statute, our review will be limited

to the single question arising under the Federal

Constitution which was considered in the

opinion of the court below...

It is said that the vice in the statute is not that it

distinguishes between passengers who pay and

those who do not, but between gratuitous

passengers in automobiles and those in other

classes of vehicles. But it is not so evident that

no grounds exist for the distinction that we can

say a priori that the classification is one forbidden

as without basis, and arbitrary. 280 U.S. at 123.

Silver v. Silver, 280 U.S. 117 (1929).

11. In Silver the Supreme Court utilized the “any

conceivable basis test” in holding that the Guest Statute

did not violate the Equal Protection Clause:

.. it is not so evident that no grounds exist for

the distinction that we can say a priori that the

classification is one forbidden as without basis,

and arbitrary. 280 U.S. at 123. Silver v. Silver, 280

U.S. 117 (1929).”

14

12. The current test for determining whether a legislature

distinction violates equal protection is the “rationally related”

test:

Under our rational basis standard of review,

1 “legislation is presumed to be valid and will be

sustained if the classification drawn by the statute

is rationally related to a legitimate state interest.”

Cleburne v. Cleburne Living Center, supra, at 440,

105 S. Ct. 3249; see also Department of

Agriculture v. Moreno, 413 U.S. 528, 534 93 S.

Ct. 2821, 37 L. Ed. 2d 782 (1973); Romver v.

Evans, 517 U.S. 620, 632-633, 116 S. Ct. 1620,

134 L. Ed. 2d 855 (1996); Norlinger v. Hahn, 505

U.S. 1, 11-12, 112 S. Ct. 2326, 120 L. Ed. 2d 1

(1992).

Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003).

13. The Supreme Court has dismissed appeals from

Arkansas”*, Indiana”’, Oregon*®’, Utah,*! and Delaware’?

*® White v. Hughes, 257 Ark.627, 519 S.W.2d 70, appeal

dismissed, 423 U.S. 805 (1975)

°° Brady v. Acs, 264 Ind. 285, 342 N.E2d 837, appeal dismissed,

429 U.S. 803 (1976)

© Hill v. Garner, 277 Or. 641, 561 P.2d 1016, appeal dismissed,

434 U.S. 989 (1977)

| Cannon vy. Oviatt, 520 P.2d 883 (Utah), appeal dismissed,

419 U.S. 810 (1974)

2 Pierce v. Bierrer, 447 A.2d 1189 (Del.), appeal dismissed,

459 U.S. 1026 (1982).

15

upholding guest statutes “for want of a substantial federal

question”.

14. Because these dismissals are deemed adjudications

on the merits and thus binding on lower courts*’, several state

and federal courts have concluded that federal equal

protection challenges are foreclosed by Si/ver’s reasoning.*4

15. In 1977 Justice White*> joined by Justice Brennon

in a dissenting opinion noted the significant division among

the states on Silver and stated that the issue of whether Si/ver

remained binding precedent on the issue of whether a guest

statute violates federal equal protection should be reviewed

by the Court:

In 1929, this Court held that Connecticut’s quest

statute did not violate the Equal Protection Clause,

because it could not be said that “no grounds

existed for the distinction” between gratuitous

passengers in automobiles and those in other

classes of vehicles. Silver v. Silver 280 U.S. 117,

123 50 S. Ct. 57, 74 L. Ed. 221 (1929). While

* Hicks v. Miranda, 422 U.S. 332, 343-45 (1975).

* Corey v. Jones, 650 F.2d 803, 805 (5" Cir. 1981); Neu v.

Grant, 548 F.2d 281, 285 (10° Cir. 1977); Sidle v. Majors 53 F.2d

1156, 1159-60 (7 Cir.), cert. denied, 429 U.S. 945 (1976): Davis v.

Cox 268 Ark. 78, 80, 593 S.W.2d 180, 182 (1980): Bierkamp v.

Rogers, 293 N.W.2d 577, 579 (Iowa 1980) (striking down the Iowa

guest statute on state equal protection grounds); Nehring v. Russell,

582 P. 2d 67, 76 (Wyo. 1978) (striking down the Wyoming guest

statute on state equal protection grounds).

> Hill v. Garner, 434 U.S. 989, 98 S. Ct. 623 (1977) and Sides

v. Majors, 429 U.S. 945 (1978)

16

that decision for a while foreclosed federal equal

protection challenges to the guest statutes of the

various states, in recent years the issue of the

constitutional validity of these statutes has been

frequently litigated in state courts with conflicting

results. Since 1971, the highest courts of no fewer

that six states have concluded that their guest

statutes violated the Equal Protection Clause

of the Fourteenth Amendment, while during the

same period similar statutes have been upheld

against federal constitutional attack in 10 states.

Typical of those decisions striking down the guest

statutes is Brown v. Merlo, 8 Cal.3d 855, 106

Cal.Rptr. 388, 506 P.2d 212 (1973), in which the

California Supreme Court concluded that the

classifications created by the challenged statute

between those denied and those permitted

recovery for negligently inflicted injuries did not

bear a substantial and rational relation to the

statute’s purposes of protecting the hospitality of

the host driver and of preventing collusive

lawsuits. Silver v. Silver was exptessly

distinguished involving different equal protection

considerations. In contrast, the Oregon Supreme

Court, among others, has held that the hospitality

rationale does support the distinctions drawn by

the State’s guest statute. Duerst v. Limbocker,

supra...

Because the significant division among the state

courts persists despite Silver v. Silver, supra,

and despite our more recent relevant

dismissals, | would note probable jurisdiction and

set this case for oral argument.

Hill v. Garner, 434 U.S. 989 (1977).

17

16. In 1978, Justice Brennan in dissent in Sidle v.

Majors, 429 U.S. 945, 97 S. Ct. 366 stated that the Supreme

Court should review the Indiana Guest Statute under current

equal protection jurisprudence:

This case presents the question whether the

Indiana motor vehicle guest statute violates the

Equal Protection Clause of the Fourteenth

Amendment. Forty-five years ago Silver v. Silver,

280 U.S. 117, 50 S. Ct. 57, 74 L. Ed 221 (1929),

held that a Connecticut guest statute, providing

that no person carried gratuitously as a guest in

motor vehicle might recover from the owner or

operator for injuries cause by its negligent

operation, was not in conflict with the Equal

Protection Clause because of the distinction it

made between passengers so carried and those in

other classes of vehicles. The Court’s rationale

was that “. .. it is not so evident that no grounds

exist for the distinction that we can say a priori

that the classification is one forbidden as without

basis, and arbitrary.” Jd. at 123, 50 S. Ct. 57. But

under today’s equal protection jurisprudence the

classification must satisfy the standard of

rationality. .. .

Within only the past five years, high courts of

no less that 17 states have examined or re-

examined their automobile guest statutes

challenged as denying equal protection, and

almost one-half of those courts have struck

down their state’s statutes as unconstitutional

under both the Federal and State Constitutions.

This conflict of view might reasonably lead bench

18

and bar to expect that this Court would grant

review of a case that afforded an opportunity to

re-examine Silver in light of today’s rationality

standard.”

17. In this case, the Alabama Supreme Court refused to

presume that Si/ver was no longer controlling authority:

Likewise, the naked statement*® that “the Guest

Statute violates the Equal Protection Clause of the

U.S. Constitution,” falls far short of demonstrating

that we should presume Silver v. Silver to no

longer be controlling authority.

(Westlaw Opinion, p. 6 of 13)

' 18. The Silver decision is a judicial barrier which

prevents the Alabama Supreme Court from deciding whether

the Alabama Guest Statute violates the 14" Amendment Equal

Protection Clause.?’ The Silver decision precluded Tolbert

from recovering damages for the death of his son who was

killed by a negligent caregiver.

19. The Alabama Supreme Court has previously relied

on the Silver decision to deny an equal protection

6 In the Alabama Supreme Court, Tolbert did not rely on the

“naked statement that the Guest Statute violates the Equal Protection

Clause.” Tolbert argued that the Guest Statute violated the Equal

Protection Clause quoting extensively from Brown v. Merlo, 506 P.2d

212 (Calif. 1973) and Whitworth v. Bynum, 697 S.W. 194 (Texas

1985).

7 The Alabama Supreme Court has not decided whether the

Alabama Constitution provides equal protection. See footnote 3.

19

constitutional challenge to the Alabama Guest Statute in 1939

in Pickett v. Matthews, 192 So. 261 (Ala. 1939) and again in

1975 in Beasley v. Bozeman, 315 So.2d 570 (Ala. 1975):

The Supreme Court of the United States has

upheld the right of a state to pass a guest law.

See Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221

(1929), 315 So.2d 570.

20. The earlier rationales for the Guest Statute have been

rejected because they do not rationally advance the earlier

stated objectives of the statutes:

The rationales commonly cited for guest laws are

the promotion of “hospitality” by automobile

owners and the prevention of collusion between

host and guest to defraud the host’s insurer. But

as time passed and social values changed, many

judges and legislators realized that guest laws

do not rationally advance those objectives and

are not worth their price in compensated injuries.

No automobile guest statute has been enacted

since 1938.

Goodbye and Good Riddance by James J. Woods, 16

Cumb.L.Rev. Vol. 16, 263-265 (1985-1986).

21. There is no reasonable, rational reason for

distinguishing between passengers and guests for liability

purposes.

22. The Alabama Guest Statute violates the Equal

Protection Clause of the 14° Amendment because there is

20

no reasonable rational basis for the legislative distinction

between “guests” and passengers for liability purposes.

All guests and passengers should receive the benefit of the

negligent driver’s liability insurance** when the driver is

negligent.

23. In the past 30 years, the U.S. Supreme Court has

declared several state laws unconstitutional on Equal

Protection grounds. In Trimble v. Gordon, 430 U.S. 762, 776,

768, 97 S. Ct. 1459, 1464, 1468 (1977), the U.S. Supreme

Court in striking down a state probate statute which allowed

children born out of wedlock to inherit only from mothers

carefully reviewed the reasons of the statue and rejected all

reasons:

.. . the Equal Protection Clause requires more than

the mere incantation of a proper state purpose.

For the reasons stated above, we conclude that

§ 12 of the Illinois Probate Act cannot be squared

with the command of the Equal Protection Clause

of the Fourteenth Amendment. Accordingly, we

reverse the judgment of the Illinois Supreme Court

and remand the case for further proceedings not

inconsistent with this opinion.

Id. 776.

*® Since June 1, 2000 Alabama has had mandatory automobile

liability insurance. (AL.ST. § 32-7A-1, 4 (1975)). The Alabama Guest

Statute frustrates and contradicts Alabama’s financial responsibility

laws which are designed to compensate all accident victims and

spread the risk of individual losses over the entire motoring

population.

21

24. The Alabama Supreme Court in relying on Silver in

upholding the Guest Statute did not state any reasons rational

or otherwise for the legislative distinction between passengers

and guests for liability purposes.

25. More recently the U.S. Supreme Court, in Lawrence

v. Texas, 539 U.S. 558, 565 123 S. Ct. 2472, 2476 (2003),

agreed to review an Equal Protection issue which the Court

had relied on 17 years earlier. The issue on review was:

Whether Bowers v. Hardwick, 478 U.S. 186, 106

S. Ct. 2841, 92 L. Ed. 2d 140 (1986), shoutd be

overruled?

26. In overruling Bowers, the U.S. Supreme Court held

that stare decisis is not an inexorable demand especially when

reviewing a Constitutional liberty interest:

The doctrine of stare decisis is essential to the

respect accorded to the judgments of the Court

and to the stability of the law. It is not, however,

an inexorable command. Payne v. Tennessee, 501

U.S. 808, 828, 111 S. Ct. 2597, 115 L. Ed. 2d 720

(1991) (“Stare decisis is not an inexorable

command; rather it “is a principle of policy and

not a mechanical formula of adherence to the latest

decision”) (quoting Helvering v. Hallock, 309 U.S.

106, 119, 60 S. Ct. 444, 84 L. Ed 604 (1940)).

Bowers was not correct when it was decided, and

it is not correct today. It ought not to remain

binding precedent. Bowers v. Hardwick, should

be and is now overruled.”

539 U.S. 578, 106 S. Ct. 2489.

22

As the Constitution endures, persons in every

generation can invoke its principles in their own

search for greater freedom.

Id. 539, 3489.

27. Most legal authorities and three Circuit Courts of

Appeals agree that Silver is “not valid” and the decision is

“antiquated”, yet all three Circuit Courts of Appeal held they

were obligated to follow Silver.

WHEREFORE, Petitioner requests that the Court will

grant the Petition for Writ of Certiorari to the Alabama

Supreme Court and upon review, declare that the Silver

decision is no longer binding authority for determining

whether the Alabama Guest Statute violates the Equal

Protection Clause of the 14° Amendment. Petitioner requests

that the Alabama Guest Statute be declared unconstitutional

because it violates the Equal Protection Clause of the

14 Amendment of the U.S. Constitution in that there is no

rational basis for a legislative distinction between passengers

and “guests” for liability purposes. In the alternative,

Petitioner requests that the Alabama Guest Statute be declared

unconstitutional on equal protection grounds as applied to

the facts of this case because the deceased child in this case

was in the care of his caregiver.

Respectfully submitted,

Myron ALLENSTEIN

ALLENSTEIN & ALLENSTEIN, LLC

141 South 9th Street

Gadsden, AL 35901

(256) 546-6314

Counsel for Petitioner