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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 1000

## Text

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

.
.
)
:
!
)
;
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0633%3A1. Public record. Not legal advice.