Opposition Brief — Mercer v. Thomas

FILED

‘) JUL 2 2 2005

No. 04 - 1676 OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

GREGORY SHAWN MERCER,

Petitioner,

V.

WILLIAM ALOYSIOUS THOMAS, IIL ET AL.,

Respondents.

On Petition For Wnit of Certioran

To The Court of Appeals of Maryland

SUPPLEMENTAL BRIEF

REPLY TO BRIEF {N OPPOSITION

GREGORY S. MERCER, PRO SE

Counsel of Record

3114 Borge Street

Oakton, Virginia 22124

(703) 591-4662

i

An intervenor should be permitted to intervene for

Respondent Campbell as he has not filed a Petition or

Conditional Cross-Petition. Case law exists for this

situation: Hunter v. Ohio ex rel. Miller, 396 U. S. 879

(1969). Below, and as Petitioner’s Reply to BG&E’s Brief

in Opposition (paragraphs #8 and #9), Petitioner clarifies

what the intervenor Petition might state.

REPLY QUESTIONS PRESENTED FOR REVIEW

6. Whether or not Maryland’s contributory negligence

common law was used to violate Campbell’s 7th U. S.

Amendment right to preservation of a jury trial and

Campbell’s 14th U. S. Amendment right to due process /

equal protection of the law. |

7. Whether or not any (including Maryland’s and West

Virginia’s) common law of contributory negligence is

unconstitutional.

* - Additions to questions #6 and #7 above (in italics) are explained

below (See page RB-2 and RB-10).

TABLE OF CONTENTS

REPLY QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. SUPPLEMENTAL BRIEF >

. REPLY TO BRIEF IN OPPOSITION

BY PARAGRAPH # FROM BG&E’S BRIEF

CAMPBELL v, BG&E OPINIONS

CAMPBELL v, BG&E JURISDICTION

CAMPBELL v. BG&E ADDITIONAL

CONSTITUTIONAL PROVISIONS

INVOLVED

CAMPBELL v. BG&E STATEMENT OF CASE

CAMPBELL v. BG&E REASON FOR

GRANTING THE WRIT :

CAMPBELL v, BG&E CONCLUSION

ill

" ABLE OF CONTENTS - CONTINUED

Campbell v, BG&E:

Appendix II :

Campbell’s Last Chance Argument

presented to Trial Judge when Jury

was out of Courtroom, Campbell

v. BG&E, Case No. 87323051 /

CL73959, Circuit Court for Baltimore

City, Maryland, December 11, 1991 App. 118

Appendix JJ

Notice of Appeal, Campbell v. BG&E,

Case No. 24-C-87323051, Circuit

Court for Baltimore City, Maryland,

November 8, 2004 | App. 126

Appendix KK

Motion for Reconsideration, Campbell

vy. BG&E, Court of Appeals of Maryland,

September Term 2004, Docket No. 490,

January 21, 2005 App. 128

iv:

TABLE OF AUTHORITIES

Alvis v. Ribar, 85 Iil.2d 1, 421 N.E.2d 886,

52 Ill. Dec. 23 (1981) SB-3 & App. 115

B Vv ian P Co.

163 W. Va. 332, 256 S. E.2d 879 (1979)

SB-3, App. 116, 129, 131, 136 & 146

Butterfield v. Forrester, 11 East 60,

103 Eng. Rep. 926 (1809) SB-4 & App. 130

Campbell v. BG&E, 331 Md. 196,

627 A.2d 538 (1993) SB-2

Cohen v, Rubin, 55 Md. App. 83,

460 A.2d 1046 (June, 1983)

SB-3, App. 139 & 142

Davies v, Mann, 10 Meeson & Welsby 546,

152 Eng. Rep. 588 (1842) SB-4

Davis v. Dipino et al,, 337 Md. 642,

655 A.2d 401 (1995) SB-2

Furguson v, Cramer,116 Md. App. 99, 103;

| 695 A.2d 603, 605 (1997) . SB-3

Goetaanan.y. Wichern, 327 N.W.2d 742 (1982)

SB-3 & App. 115

v

TABLE OF AUTHORITIES- CONTINUED

Gustafson v. Brenda, 661 S.W.2d 11 (1983)

7 SB-3 & App. 114

Education et al., 295 Md. 442,

456 A.2d 894 (March, 1983) SB-2 & App. 112

Hilen v, Hays, 673 S.W.2d 713 (1984) SB-3 & App. 114

Hoffman v. Jones, 280 So.2d 431,

78 A.L.R.3d 321 (1973) SB-3 & App. 114

Hunter v.

396 U. S. 879 (1969) i & RB-6

Irwin v. Spriggs, 6 Gill 200 (1847) SB-4

Kaatz v, State, 540 P.2d 1037(1975) SB-3 & App. 114

Li v. sellow Cab Co,, 13 Cal.3d 804,

| 532 P.2d 1226, 119 Cal. Rptr. 858,

78 A.L.R.3d 393 (1975) .SB-3 & App. 114

McIntyre v, Balentine, 833 S.W.2d 52 (1992)

. SB-3 & App: 116

Napier v, Elk Grocery Company, 163 W. Va. 332,

256 S. E.2d 879 (1979) App. 129 & 137

vi

- TABLE OF AUTHORITIES- CONTINUED

N.C. R.R. Co. v, State, Use Price,

29 Md. 420 (1868) SB-4

Nelson v, Concrete Supply Co., 303 S. C. 243,

399 S.E.2d 783 (1991) | SB-4 & App. 115)

Placek v. City of Sterling Heights, 405 Mich. 638,

275 N.W.2d 511 (1979) SB-4 & App. 114

Scott v. Rizzo, 96 N.M. 682,

634 P.2d 1234 (1981) SB-4 & App. 114

SB - 1

I. SUPPLEMENTAL BRIEF

A. On June 2, 2005, Petitioner filed a Motion for

Clarification / Motion for Certification that Federal

Questions were Raised and Decided in the Court of

Appeals of Maryland (hereafter “COA”), Gregory

Shawn Mercer v. William Aloysious Thomas, III,

September Term 2004, Petition Docket No. 434. This

document was denied without further explanation on July

18, 2005. The issue of Petitioner’s elected trial by jury that

was denied by the Circuit Court for Prince George’s

County was clearly before the COA. For whatever reason

that the COA considered itself justified in denying

Petitioner’s jury trial, this federal question was raised and

decided by the COA. This federal question deserved to be

certified. Petitioner re-emphasizes his first question

- presented for review to this Court: Whether or not

Maryland’s highest court evaded federal claims in

cases/appeals involving contributory negligence.

B. After a week to review his Petition filed June 13,

2005, Petitioner became aware of corrections or

improvements that should be made to his Petition. A list of

16 corrections or improvements were mailed to each

Respondent on June 21, 2005. Each Respondent received

this list on June 22, 2005. The 16 corrections or

_improvements follow:

1) In the Table of Contents for both the Petition and the

Appendices:

SB -2

App. I should be dated October 12, 2004.

App. U should be dated November 3, 2004.

2) “169” is erroneous in the cite for Campbell v. BG&E,

331 Md. 196, 627 A.2d 538 (1993) on pages vi, ix, and

App. 47.

3) In the ecu of POON, page x, Harrison et al. v.

gom +t al. also appears on App.

1 12 ad as ; Campbell” s ;COA Petition paragraph H32.

4) In Constitutional and Statutory Provisions Involved,

page 2, U. S. Constitutional Amendments are not given

verbatim in any Maryland Court but referred to in the

COSA and COA. See Petitioner’s COA Petition paragraph

H14 (App. FF at App. 110).

5) Petition, page 9, “(App. DD at paragraphs 6 & 7)”

should be “(App. DD at paragraphs 6 & 7 or H2)”.

6) Petition, pages 10, 22, and 23, Davis v. Dipino appears

in Petitioner’s COA Petition as paragraph H24.

7) In the Statement of Cases, Campbell v. BG&E, pages 16

- 19, it would be significant to mention that Campbell’s

attorney presented the Last Clear Chance defense to the

CC judge while the jury was not present. The jury

recognized the Last Clear Chance defense while the judge,

despite Campbell’s attorney’s presentation, either missed

or ignored the significance of the defense. Campbell’s

attorney’s presentation of the Last Clear Chance defense

SB - 3

appears as Campbell’s COA Petition paragraph H18.

8) Petition, pages 17, 18, and 24, Cohen v. Rubin appears

' as Petitioner’s COA Petition paragraph H28 and

Campbell’s COA Petition paragraph H33.

9) Petition, page 21, the first two sentences should be

combined with a comma to eliminate a sentence fragment.

10) Petition, page 22, Furguson v. Cramer appears as

Petitioner’s COA Petition paragraph H2S.

11) App. GG, page App. 113, “[38 years ...” should be

“[39 years ...”

12) App. HH has the following case law in alphabetical

order:

Alvis v, Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 IIL.

Dec. 23 (1981)

Bradley v. Appalachian Power Co., 163 W. Va.

332, 256 S.E.2d 879 (1979) 3

Goetzman v. Wichern, 327 N.W.2d 742 (1982)

Gustafson y. Brenda, 661 S.W.2d 11 (1983)

Hilen v. Hays, 673 S.W.2d 713 (1984)

Hoffman vy, Jones, 280 So.2d 431, 78 A.L.R.3d 321

(1973)

Kaatz vy. State, 540 P.2d 1037 (1975)

Li v. Yellow Cab Co., 13 Cal.3d 804, 532 P.2d

1226, 119 Cal. Rptr. 858, 78 A.L.R.3d 393 (1975)

McIntyre v. Balentine, 833 S.W.2d 52 (1992)

SB - 4

Nelson vy. Concrete Supply Co., 303 S. C. 243, 399

S.E.2d 783 (1991)

Placek v, City of Sterling Heights, 405 Mich. 638,

275 N.W.2d 511 (1979)

Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981).

13) England established Contributory Negligence common

law in Butterfield v. Forrester, 11 East 60, 103 Eng. Rep.

926 (1809) and is available to Maryland citizens via

Maryland Constitution.‘ Declaration of Rights, Article

5(a). Butterfield appears as Petitioner’s COA Petition

paragraph H26 and Campbell’s COA Petition paragraph

14) England established the Last Clear Chance defense to

Contributory Negligence in Davies v. Mann, 10 Meeson &

Welsby 546, 152 Eng. Rep. 588 (i842) and is available to

Maryland citizens via Maryland Constitutional Declaration ©

of Rights, Article 5(a). Davies appears as Petitioner’s

COA Petition paragraph H27 and Campbell’s COA

Petition paragraph H29.

15) Petition, page 27, Irwin y. Spriggs which adopted

Contributory Negligence common law in Maryland

appears as Campbell’s COA Petition paragraph H30.

16) N.C. R.R. Co, v, State; Use Price, 29 Md. 420 (1868)

adopted Last Clear Chance defenses in Maryland and

appears as Campbell’s COA Petition paragraph H31.

RB-1

I REPLY TO BRIEF IN OPPOSITION

BY PARAGRAPH # FROM BG&E’S BRIEF

Cover) The cover states, “On Petition For Writ of

Certiorari To The Court Of Special Appeals Of Maryland.”

However, since the COA made substantive rulings in

Appendices J & V at App. 18 & 52, these Petitions for Writ

of Certiorari are and would be to the COA (the state court

of last resort) and not the COSA (which was not the state

court of last resort - Appendix F at App: 9, paragraph 2).

Paragraph 1) The original Campbell v _BG&E Complaint

was filed November 19, 1987 which was the 323rd day of

1987. The Campbell Complaint was the 51st case filed

that day. The Campbell Case No. is 87 323 051.

Paragraph 3) Respondent BG&E received Petitioners list

of 16 corrections and improvements to his Petition on June

22, 2005 (See page SB-2, #2). BG&E corrected the cite to

Campbell v. BG&E, 331 Md. 196, 627 A.2d 538 (1993).

Paragraph 5) Campbell filed a Notice of Appeal to the

COSA on November 8, 2004 (Appendix JJ at App. 126).

Campbell was scheduled to file a Brief of Appellant in the

COSA on or before March 23, 2005. Between these two

dates, Campbell filed a Petition for Writ of Certiorari to the

COSA in the COA on December 2, 2004, the Petition was

denied by the COA on December 23, 2004 (Appendix V at

App. 52), Campbell filed a Motion for Reconsideration in

the COA on January 21, 2005, and the Motion was denied