Opposition Brief — Tarapacki v. New Jersey ReInsurance Co.

No. 96-1140

4 = A EP

In The

Suprenve Court of the United States

'

’

s

4-

October Term, 1996

TADEUSZ TARAPACKI,

NEW JERSEY ReINSURANCE COMPANY,

r

Respondent.

On Petition for a Writ of Certiorari to the

Superior Court of New Jersey, Appellate Division

RESPONDENT?’S BRIEF IN OPPOSITION

ROBERT L. CLIFFORD

Counsel of Record

McELROY, DEUTSCH & MULVANEY

Attorneys for Respondent

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, New Jersey 07960-2075

ROBERT L. CLIFFORD (201) 993-8100

TIMOTHY P. SMITH

On the Brief

70598

(800) 3 APPEAL «+ (800) 5 APPEAL « (800) BRIEF 21

VOLDMAN ARG te Han an RE a ce Nin aetna nantes SEBS S ce

QUESTIONS PRESENTED

Petitioner, Tadeusz Tarapacki, received and continues to

receive Workers’ Compensation benefits from respondent, New

Jersey ReInsurance, in the amount set forth by court order.

Accordingly, the questions raised by this Petition for Certiorari

are:

1. May a petitioner seek relief from this Court when the

underlying issue is moot, in violation of Article III of the United

States Constitution?

2. May a petitioner seek review of a state court decision in

which no federal question was raised or decided, in violation of

28 U.S.C. § 1257?

3. May a petitioner seek review of a state court decision

that was decided on independent and adequate state grounds?

4. May a petitioner seek relief from this Court where the

federal question raised is irrelevant to the disposition of this

matter?

il

LIST OF INTERESTED PARTIES

PURSUANT TO RULE 29.6

Petitioner, Tadeusz Tarapacki, is a natural person.

Respondent, New Jersey ReInsurance Company, is a subsidiary

of New Jersey Manufacturers Insurance Company, a New Jersey

corporation. “espondent has no subsidiaries.

iii

TABLE OF CONTENTS

Page

NE I oo Goa a se ulbu baeb cose oles i

List of Interested Parties Pursuant to Rule 29.6 .;.... ii

i eh ely coven co sb cee bene cas ili

i cater et ee ot cee. iv

I i 'a'Soslb oS 4.04.00 bo 6 0454 cob se ve os l

Statement of Jurisdiction ..............ccceccceeee l

Counterstatement of the Case ..................... l

es a ee es eae ele ob eo keens l

B. Diversified’s Application for New Jersey Workers’

Compensation Insurance .................. 2

C. NJRe’s Policy and Endorsement ............ 4

D. Notice to NJRe of Petitioner’s Accident ...... 6

Reasons for Denying the Writ .................... 9

i" Gee I 6c ks Vhs OWe sean sNeaes 9

II. The Federal Questions Of Full Faith And Credit

Were Not Argued Or Decided Below. ........ 10

Contents

Page

Ili. The Decision Below Was Decided On Independent

State Grounds, Depriving This Court Of

Te re Trae OL Ae mrt ry 15

IV. Even If A Federal Question Of Full Faith And

Credit Were Raised, It Is Irrelevant To The

Disposition Of This Matter. ................ 16

LL GRNIE ac.c csc es senadenweseueeres ees 17

TABLE OF CITATIONS

Cares Cited:

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71

[SOUE? évksesse ued ekawadeeuneeeres 10, 11, 12, 13, 14

Caldwell v. Mississippi, 472 U.S. 320 (1985), cert.

Gentad, S79 UR, METS UGS? sna ons 044s sdawees 15, 16

Cardinale v. Louisiana, 394 U.S. 437 (1969) ..... 10, 11, 12

Church of Scientology v. United States, 113 S. Ct. 447

(IPRS) 6.440050 even es oe 0k bees 10

Dewey v. Des Moines, 173 U.S. 193 (1899) ......... 11

Illinois v. Rodriguez, 497 U.S. 177 (1990) ......... 15, 16

Montgomery Bldg. & Constr. Trades Council v. Ledbetter

Erection Co., 344 U.B. UTE Ci9SE) occcccecsciess 12

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v

Contents

Page

Muskrat v. United States, 219 U.S. 346 (1911) ...... 9

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

(ROD 2 0s ka ewaeenees Gaeeeuee doieanetas 14, 15

New York Times Co. v. Jascalevich, 493 U.S. 1331 (1978)

TET T Ce Tee ee re Oe es ae 1]

North Dakota State Bd. of Pharmacy v. Snyder’s Drug

Stores, Inc., 414 U.S. 156 (1973) ............... 12

Perry v. Thomas, 482 U.S. 483 (1987) ............. 10

Preiser v. Newkirk, 422 U.S. 395 (1975) ........... 9

Radio Station WOW v. Johnson, 326 U.S. 120 (1945)

600s 64S Ni ews bd a ER TERSE CUNEO ee 12

Rigging v. Nevada, 504 U.S. 127 (1992) ........... 10

Street v. New York, 374 U.S. 576 (1968) .......... 10, 11, 15

TXO Prod. Co. v. Alliance Resources Corp., 113 S. Ct.

SIL CRRWEe 0c on keeneceeis eee 10

United States National Bank v. Independent Insurance

Agents of America, 113 S. Ct. 2173 (1993) ....... Gg

Webb v. Webb, 451 U.S. 493 (1981) ...... 10, 11, 12, 13, 14

Yee v. City of Escondido, 503 U.S. 519 (1992) ...... 10, 11

vi

Contents

Page

Statutes Cited:

Nebel SUSOMEL 4 otusduawes 06 ceepee eee 15

oe Un 2 URS? sdaaesceuvicesieer i, i, 2, 20, 11, 12

United States Constitution Cited:

RUD TE kc bcvaeane 6a Wiedeaseess eee i, 9

epee AMONG bck ciasccbcavcsncueesacauees 10

Rule Cited:

Supreme Court Rule 14.1(g)(i) .............0000.. eS

Other Authority Cited:

New Jersey Workers’ Compensation and Employer’s

Liability Insurance Manual, Part 3, § 14.......... 3

l

Respondent, New Jersey ReInsurance Company (NJRe),

submits this brief in opposition to this Petition for Certiorari,

which seeks review of a judgment of the Superior Court of New

Jersey, Appellate Division.

OPINIONS BELOW

The New Jersey Supreme Court denied certification at 683

A.2d 1162 (1996), by an Order contained in the appendix to the

Petition for Certiorari at la. In doing so, that court denied review

of a judgment announced in an unreported opinion of the

Superior Court of New Jersey, Appellate Division, Docket No.

A-6141-94T3, located at 2a-12a of the appendix to the Petition

for Certiorari.

STATEMENT OF JURISDICTION

Petitioner, Tadeusz Tarapacki, claims jurisdiction under 28

U.S.C. § 1257. His claim is unfounded. As set out below, the

dispute between petitioner and NJRe is moot, because petitioner

is receiving the payment that he seeks. Thus, this Court is without

any case or controversy to adjudicate. Further, the federal

questions that petitioner raises in this Petition for Certiorari were

neither argued nor decided beiow and therefore were not

preserved for this Court’s review. As a result, this Court is

without jurisdiction to hear this matter.

COUNTERSTATEMENT OF THE CASE

A. Overview

Petitioner’s recitation of the issues presented contains

numerous factual and legal misstatements. Thos > misstatements

go to the heart of petitioner’s claims before this Court. Because

the record below demonstrates that the questions presented are

without merit — indeed, were never raised or adjudicated below

as required under 28 €.S.C. § 1257 and relevant case law, as

well under as Supreme Court Rule 14(1)(g)(i) — and also that

this action is mcot, the Court should deny the Petition for

Certification.

Specifically, the issues that petitioner raises are moot

because petitioner is receiving payment in the amount equal to

that which sought through initiation of this action. Second, no

federal question of full faith and credit was argued or decided

below. Third, the state courts below decided this action on

independent state grounds. Indeed, the sole issue before the

Superior Court of New Jersey, Appellate Division, was an

interpretation of NJRe’s contract of insurance issued to

petitioner’s employer. (Petition 8a-9a (listing questions

presented below).) Last, even if petitioner’s full faith and credit

argument could somehow be construed as properly before this

Court, the question is irrelevant to the disposition of this case.

As noted, the enforceability of petitioner’s Pennsylvania

judgment (which has been paid) in New Jersey is not part of

this suit. Instead, the action below concerned only petitioner’s

rights against NJRe as assignee of his employer’s contractual

rights, which, because of the payment of the Pennsylvania

judgment, are moot.

B. Diversified’s Application for New Jersey Workers’

Compensation Insurance

Petitioner’s employer, Diversified Contracting, though its

agent, Braishfield Associates, Inc., applied for a contract of

workers’ compensation insurance through the Compensation

Rating and Inspection Bureau of New Jersey (“Rating Bureau”).

That entity oversees the New Jersey Workers’ Compensation

Insurance Plan (the Plan), which is an assigned risk pool

providing New Jersey workers’ compensation and employers’

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liability insurance to employers unable to obtain such coverage

in the voluntary market. (Pet.’s App. Div. Apx. Pa218.) The Plan

governs only liabilities under the New Jersey Workers’

Compensation Act. It provides, in relevant part, as follows:

Preamble. This Plan has been adopted by the

insurance company members of the

Compensation Rating and Inspection Bureau

and approved by the Commissioner of

Insurance for the benefit of employers

subject to the New Jersey Workers

Compensation law. It provides the means for

an employer to satisfy the requirements of

that law....

1. This Plan is available to any employer in

good faith entitled to insurance under the

New Jersey Workers Compensation Law, who

is unable to secure insurance for their liability

under that law and who does not have

outstanding any uncontested unpaid premium

in connection with any Workers

Compensation and Employers Liability

Insurance in effect during the two years

immediately preceding.

(New Jersey Workers’ Compensation and Employer’s Liability

Insurance Manual, Part 3, § 14.) The Rating Bureau assigns the

insured to a participating insurer. That insurer plays no part in

the application process. (Pet’s App. Div. Apx. Pa 218.)

In its application dated September 21, 1989, Diversified

identified only its Moorestown, New Jersey, headquarters as a

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site to be insured. (Petition 3a.) Despite the fact that Diversified

had existing operations in Pennsylvania (where Petitioner was

employed), Diversified executed a certification to its application

that stated that the disclosure was accurate and that it understood

that the Rating Bureau would rely on the disclosure in assigning

Diversified an insurer. Further, the certification disclosed that

the policy issued would insure only New Jersey sites and that

other arrangements were necessary for out-of-state operations.

(Pet.’s App. Div. Apx. Pa 225.)

C. NJRe’s Policy and Endorsement

Based on the information contained in the application, NJRe

issued a policy of workers’ compensation insurance with a policy

period of November 5, 1988, to November 5, 1989. (Petition

3a.) That policy, as the court below found, provided insurance

under the law of New Jersey. (Jd. at l0a-11a.) It also provided

“other States’ Insurance,” which is designed to provide the

insured with coverage in certain designated states for new

operations not in existence at the time the application is executed

and for the insured’s unexpected or temporary presence in those

states. The policy provided such other states’ insurance as

follows:

A. How This Insurance Applies

1. This other states insurance applies

only if one or more states are shown

in item 3.C. of the Information Page.

2. If you begin to work in any one of

those states and are not insured or are

not self-insured for such work, the

policy will apply as though that state

were listed in item 3.A. of the

Information Page.

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3. We will reimburse you for the

benefits required by the workers

compensation law of that state if we

are not permitted to pay the benefits

directly to persons entitled to them.

B. Notice

Tell us at once if you begin work in

any state listed in item 3.C. of the

Information Page.

(Id. at 3a-4a.)

On November 17, 1988, NJRe sent a questionnaire to

Diversified to verify information in Diversified’s application.

NJRe requested, among other things, the identification of all

operations outside of New Jersey. Diversified’s response,

received by NJRe on January 3, 1989, revealed that Diversified

had operations in Pennsylvania, Delaware, and Maryland. (/d.

4a.) That response was NJRe’s first notice of Diversified’s non-

New Jersey operations. (See Pet.’s App. Div. Apx. Pa 231-32.)

On January 20, 1989, NJRe wrote to Braishfield, stating:

We have recently become aware, via a

Questionnaire recently returned by the

insured, that this insured has operations in

the States of Pennsylvania, Delaware and

Maryland. In view of the fact that it is our

intent to insure the obligations of this risk

under the New Jersey Workers’

Compensation Statute and not to insure the

obligations under the laws of any other state,

we wish to advise that we will be endorsing

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our contract effective 12:01 a.m. February 24,

1989 to reflect Item 3C- Other States

Insurance as “NONE”. It will be necessary

for other arrangements to be made for any

obligations this employer may have under the

laws of any other state.

Our endorsement will follow under separate

cover.

(Petition 4a; Pet.’s App. Div. Apx Pa 234.)

On January 31, 1989, NJRe mailed to Braishfield the

endorsement deleting Other States Insurance coverage. The

endorsement was effective approximately one month later, on

February 24, 1989. (Petition 4a.)

D. Notice to NJRe of Petitioner’s Accident

Pursuant to Diversified’s request, NJRe had issued a

Certificate of Insurance dated March 7, 1989. NJRe sent that

Certificate of Insurance to Braishfield. The Certificate stated:

THIS POLICY PROVIDES COVERAGE

ONLY UNDER THE WORKERS’ COM-

PENSATION LAW OF THE STATE OF

NEW JERSEY AND NOT UNDER THE

LAWS OF ANY OTHER STATE. IF YOU

MUST HIRE EMPLOYEES OUTSIDE OF

NEW JERSEY, COVERAGE FOR THOSE

OUT-OF-STATE EMPLOYEES MUST BE

SECURED ELSEWHERE.

(Petition 5a (emphasis in original).) On March 20, 1989,

Tarapacki was injured in Philadelphia, Pennsylvania. On April

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13, 1989, Mr. Tarapacki filed a workers’ compensation claim.

Diversified answered that claim on May 8, 1989, stating that it

had no workers’ compensation insurance in Pennsylvania. (/d.)

On May 10, 1989, NJRe received a claim from Diversified

in connection with the Tarapacki matter. NJRe responded on

May 26, 1989, stating that it would process under the claim

under its New Jersey policy only. On June 20, 1989, it agreed to

pay the claim under New Jersey law. (/d. at 5a-6a.)

On July 14, 1989, the Pennsylvania Workers’ Compensation

Court made an award to Tarapacki, but found that Diversified

had no workers’ compensation insurance on the date of accident.

Thereafter, on March 20, 1990, Tarapacki instituted suit against

Diversified in the Superior Court of New Jersey, Law Division,

Camden County, for enforcement of the Pennsylvania judgment.

(Id. at 6a.)

The Law Division entered final judgment by default against

Diversified on May 7, 1990. Diversified vacated that judgment

on January 30, 1991. It answered Tarapacki’s complaint and

instituted a third-party action against NJRe and New Jersey

Manufacturers Insurance Co. (NJM) on February 2, 1991, also

in the Superior Court of New Jersey, Law Division, Camden

County. (Jd. at 6a-7a.)

NJM and NJRe filed answers and counterclaims on April

15, 1991, to which Diversified responded on May 6, 1991. On

June 12, 1992, NJM and NJRe were granted summary judgment

in the Superior Court of New Jersey, Law Division, Camden

County, on grounds that the July 14, 1989, Pennsylvania

Workers’ Compensation Court finding of no insurance was res

judicata against Tarapacki and Diversified. (Jd. at 7a.)

On January 12, 1993, Tarapacki and Diversified entered a

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consent judgment in the Superior Court of New Jersey, Law

Division, Camden County, in favor of Tarapacki in the amount

of $140,306.58. Diversified assigned to Tarapacki all its rights,

including appeal of the summary judgment in favor of NJRe.

Tarapacki appealed. (/d.)

The Commonwealth Court of Pennsylvania reversed the

Pennsylvania Workers’ Compensation Court on April 14, 1994,

and remanded for a hearing on whether Diversified had

Pennsylvania workers’ compensation insurance on the date of

Tarapacki’s accident. Thereafter, on July 20, 1994, the Superior

Court of New Jersey, Appellate Division, reversed the Law

Division’s grant of summary judgment and remanded for the

question of coverage. The Appellate Division suggested a stay

until the Pennsylvania Workers’ Compensation Court’s re-

hearing was decided. On August 1, 1994, the Appellate Division

denied NJRe’s request for reconsideration and clarification. (Jd.

at 7a-8a.)

On May 24, 1995, at a second hearing in the Superior Court

of New Jersey, Law Division, the court granted NJRe summary

judgment and remanded to the New Jersey Workers’

Compensation Division for determination of Tarapacki’s

benefits. Tarapacki filed a motion for leave to appeal in the

Appellate Division on June 8, 1995. The Appellate Division

granted Tarapacki’s motion for leave to appeal on June 12, 1995,

treating the motion as if it were an appeal as of right from final

judgment. That appeal did not raise any questions of federal

law. Instead, both the moving brief and the Appellate Division

opinion were limited to the interpretation of the workers’

compensation contract of insurance and the application of state

law. (See id. at 8a-9a (listing issues raised by Tarapacki on

appeal); Tarapacki’s brief before the Superior Court of New

Jersey, Appellate Division.)

shady tit sn bee Aan es ain a li

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On May 16, 1996, the Pennsylvania Bureau of Workers’

Compensation issued an order finding that NJRe was liable to

petitioner under the laws of Pennsylvania and ordering payment

of $399 per week plus counsel fees. (Petition 48a-52a.) On June

18, 1996, the Superior Court of New Jersey, Appellate Division,

affirmed the grant of summary judgment in favor of NJRe. (Id.

at 2a.) Thereafter, NJRe began paying Tarapacki the amount of

the workers’ compensation award, plus fees. To date, the award

totals over $250,000, including attorney’s fees. On October 21,

1996, the New Jersey Supreme Court denied Tarapacki’s petition

for certification, which raised no federal question. (/d. at la.)

Tarapacki filed this Petition for Certiorari on January 17, 1997.

REASONS FOR DENYING THE WRIT

I.

THE ISSUES ARE MOOT.

This Court should deny the Petition because the issues raised

before the Superior Court of New Jersey, Appellate Division,

are moot. As noted, Tarapacki is receiving workers’

compensation benefits from NJRe that equal the payments that

he would receive if NJRe had actually issued a workers’

compensation policy of insurance pursuant to Pennsylvania law.

Yet under United States National Bank v. Independent Insurance

Agents of America, 113 S. Ct. 2173 (1993), “ ‘[t}he exercise of

judicial power under Art. III of the Constitution depends on the

existence of a case or controversy,’ ” because “ ‘a federal court

[lacks] the power to render advisory opinions.’” 113 S. Ct. at

2178 (second alteration in original) (quoting Preiser v. Newkirk,

422 U.S. 395, 401 (1975)). A case or controversy requires the

“ “pursuance of an honest and actual antagonistic assertion of

rights by one [party] against another.’ ” Jd. (quoting Muskrat v.

United States, 219 U.S. 346, 359 (1911)). Here, simply put,

10

Tarapacki has no additional relief that he may seek from NJRe.

Accordingly, the case is moot and this Court is without power

to entertain it. Church of Scientology v. United States, 113 S.

Ct. 447, 449 (1992) (stating that Court has “no a

render opinion on moot question).

Il.

THE FEDERAL QUESTIONS OF FULL FAITH AND

CREDIT WERE NOT ARGUED OR DECIDED BELOW.

For this Court to review the final judgment of a state court,

some question of federal law must have been presented below.

“It is a long-settled rule that the jurisdiction of this Court to re-

examine the final judgment of a state court can arise only if the

record as a whole shows either expressly or by clear implication

that the federal claim was adequately presented in the state

system.” Webb v. Webb, 451 U.S. 493, 496-97 (1981). Indeed,

where the opinion below does not “ ‘pass upon’ ” some federal

question, this Court will “ ‘assume[ ] that the omission was due

to want of proper presentation in the state courts.’ ” Jd. at 495

(quoting Street v. New York, 374 U.S. 576, 582 (1968)). The

Court thus “decline[s] to reach” claims “not raised and passed

upon in state court.” Bankers Life & Casualty Co. v. Crenshaw,

486 U.S. 71, 77 (1988); accord TXO Prod. Co. v. Alliance

Resources Corp., 113 S. Ct. 2711 (1993) (refusing to consider

constitutional attack on jury instructions not raised in highest

state court below); Rigging v. Nevada, 504 U.S. 127, 133 (1992)

(declining to reach Eighth Amendment claim not raised before

Nevada Supreme Court); Yee v. City of Escondido, 503 U.S. 519,

533-34 (1992) (declining to reach substantive due process claim

not raised below due to lack of jurisdiction under 28 U.S.C.

§ 1257); Perry v. Thomas, 482 U.S. 483, 492 and n. 9 (1987)

(refusing to decide standing and unenforceability issues not

raised below); Cardinale v. Louisiana, 394 U.S. 437, 438 (1969)

ive Sw panties oe

1]

(“{T]he Court will not decide federal constitutional issues raised

here for the first time on review of state court decisions.”).

Indeed, “{t]he Court has consistently refused to decide federal

constitutional issues raised here for the first in review of state

court decision.” Cardinale, 394 U.S. at 438.

Preservation of the federal question in the state proceeding

from which review is sought is a necessary element of this

Court’s jurisdiction under 28 U.S.C. § 1257. Yee, 503 USS. at

533 (discussing preservation of federal claim in state

proceedings as requirement of “jurisdictional grant of 28 U.S.C.

§ 1257”); Webb, 451 U.S. at 495 (requiring, as matter of

jurisdiction, petitioner to raise Constitutional claim in state

court); New York Times Co. v. Jascalevich, 493 U.S. 1331, 1332

(1978) (discussing 28 U.S.C. 1257 as jurisdictional basis for

review). Determining whether an issue was properly preserved

is a federal question for this Court to decide. Street, 394 U.S. at

593. A state court decision cannot be said to have passed on

federal questions that were never raised before it. Bankers Life,

486 U.S. at 79 n. 2 (“ ‘A claim or right which has never been

made or asserted cannot be said to have been denied by a

judgment which does not refer to it.’ ” (quoting Dewey v. Des

Moines, 173 U.S. 193, 200 (1899)). Therefore, the Supreme

Court Rules require a petitioner seeking review of a state court

judgment to specify, with specific citations to the record below,

when federal questions were raised below and how the state

court below passed on them. Sup. Ct. R. 14.1(g)(i); accord Webb,

451 U.S. at 495 (discussing former R. 21.1(h)).

Underlying the requirement that federal questions be first

raised in state court proceedings are “powerful policy

considerations.” Webb, 451 U.S. at 499. Those considerations

include “comity to the States” and “a constellation of practical

considerations.” Bankers Life, 486 U.S. at 79. Comity to the

states stems from the need to allow state courts an opportunity

12

to defend state law from federal challenges in order to preserve

States’ independent functioning and to allow them to construe

state law so as to avoid challenges under federal grounds. Webb,

451 U.S. at 499-500. The “practical considerations” involve the

proper development of the record below, which is necessary for

correct adjudication of the federal questions raised before this

Court. Bankers Life, 486 U.S. at 79; Webb, 451 U.S. at 500;

Cardinale, 394 U.S. at 439 (“Questions not raised below are

those on which the record is very likely to be inadequate, since

it certainly was not complied with those questions in mind.”).

Also, litigation of the federal issues in state courts permits

adjudication under state law, which “may well obviate any reason

for [this Court] giving plenary consideration to the case.” Webb,

451 U.S. at 501; accord Cardinale, 394 U.S. at 439; see also

North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores,

Inc., 414 U.S. 156, 159 (1973) (stating that “finality

requirement” of 28 U.S.C. § 1257 prevents “piecemeal review”

of state court decision; avoids advisory opinions; and minimizes

“federal intrusion into state affairs” by limiting review of state-

court decisions).

As is clear, the requirement under 28 U.S.C. § 1257 that a

federal question be raised and addressed by the state court below

is no mere “ ‘technicalit[y] to be easily scorned.’ ” Montgomery

Bldg. & Constr. Trades Council v. Ledbetter Erection Co., 344

U.S. 178, 180 (1952) (quoting Radio Station WOW v. Johnson,

326 U.S. 120, 124 (1945)). The minimum requirement for

jurisdiction under 28 U.S.C. § 1257 is that the record must make

clear that a claim under a federal statute of the Federal

Constitution “ ‘was presented in the state courts and that those

courts were apprised of the nature or substance of the federal

claim at the time and in the manner required by the state law.’ ”

Bankers Life, 486 U.S. at 77-78 (quoting Webb, 451 U.S. at 501).

Moreover, the federal claim must have been presented to the

state courts with sufficient specificity. A “vague appeal to

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constitutional principles does not preserve [an] appellant’s

{constitutional] or due process claims. A party may not preserve

a constitutional challenge by generally invoking the Constitution

in state court and awaiting review in this Court to specify the

constitutional provision it is relying upon.” Jd. at 77.

In a case presenting facts closely analogous to those

contained in this Petition, the petitioner in Webb raised a question

under the Full Faith and Credit Clause concerning the effect of

a Florida judgment in later Georgia proceedings. Moreover,

although she had used the term “full faith and credit” at several

points in the state-court proceedings below, she never cited to

the Federal Constitution or relied on cases discussing the clause.

451 U.S. at 496. Despite the respondent's failure to indicate in

his opposing brief that the Full Faith and Credit issue had never

been raised in the Georgia state courts, the Supreme Court

determined, after it called for the record, “that the federal

question was not raised below and that [the Court was] without

jurisdiction in this case.” 451 U.S. at 495. The Court accordingly

ruled that it “must therefore dismiss without reaching the merits.”

Id.

Similarly, in Bankers Life, the petitioner, in a petition for

rehearing below, claimed that a punitive damages award

“violate[d] constitutional principles.” 486 U.S. at 77. The Court

rejected that “vague appeal” as insufficient to preserve his

constitutional claims. Jd.

Thus, for this Court to reach the merits of a federal question

arising out of state court proceedings, the record must “clearly

show[] that the federal issue has been properly raised below.”

Id. at 499. Specifically, the claim must “ “be brought to the

attention of the state court with fair precision and in due time,’ ”

which is accomplished “if the record as a whole shows whether

expressly or by clear intendment” the federal question was

14

properly raised. Street, 394 U.S. at 584 (quoting New York ex

rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928)). The Bankers

Life Court referred to that requirement as “the ‘not pressed or

passed upon below’ rule.” 486 U.S. at 79.

Here, the record below clearly demonstrates that petitioner

failed to raise any federal issue of full faith and credit in the

state proceedings below. The issues raised before the New Jersey

Superior Court, Appellate Division, present questions under New

Jersey and Pennsylvania statutes. Petitioner also challenged the

trial court’s interpretation of the contract of workers’

compensation insurance, and argued against the application of

New Jersey workers’ compensation law. (Appendix to Petition

8a-9a; see also petitioner’s brief to New Jersey Superior Court,

Appellate Division at 9-25.) Nowhere in his brief to the New

Jersey Superior Court, Appellate Division, did petitioner inject

any federal question into his arguments on appeal. (Petitioner’s

brief to New Jersey Superior Court, Appellate Division at 9-

25.)

As a result of that failure to raise federal questions in the

State court proceedings, petitioner has failed to give the New

Jersey court system an opportunity to defend its state laws

against the challenge on federal issues that he now raises before

this Court. See Webb, 451 U.S. at 499-500. Moreover, the record

below is devoid of evidence, argument, and state-court reasoning

on the subject, so that correct adjudication by this Court is

impossible. See Bankers Life, 486 U.S. at 79. This record does

not even present a general reference to the Federal Constitution

such as that present in Bankers Life, 486 U.S. at 77 (declining

to find federal question jurisdiction based on allegation below

‘that punitive damages award “violates constitutional

principles”). The record below cannot be said to show,

“ ‘whether expressly or by clear intendment,’ ” that any federal

question was properly raised in the state-court proceedings.

15

Street, 394 U.S. at 584 (quoting Bryant, 278 U.S. at 67). Asa

result of petitioner’s failure to preserve any federal claim in the

state proceedings below, this Court is without jurisdiction to

grant certiorari, and it must deny this Petition on that ground

alone.

iil.

THE DECISION BELOW WAS DECIDED ON

INDEPENDENT STATE GROUNDS, DEPRIVING THIS

COURT OF JURISDICTION.

As this Court has recently stated, “[w]hen a state-court

decision is clearly based on state law that is both adequate and

independent, we will not review the decision.” JIlinois v.

Rodriguez, 497 U.S. 177, 182 (1990). The presence of adequate

and independent state grounds for a state-court decision presents

a jurisdictional bar to this Court’s review that must be considered

before the Court can reach the merits of a case. Jd. The Court

can review a State-court decision only if that decision rests

primarily on federal law or if state and federal law are

“ ‘interwoven’ ” such that “ ‘the adequacy and independence

of any possible state law ground is not clear from the face of the

opinion.’ ” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985),

cert. denied, 479 U.S. 1075 (1987).

As the opinion of the New Jersey Superior Court, Appellate

Division, makes clear, the decision below rests entirely on

contract interpretation and the application of state law. (Petition

at 8a-12a.) Specifically, the court below interpreted a contract

for workers’ compensation insurance under N.J.S.A. 34:15-81,

and did not address any issue of full faith and credit, which was

not a point petitioner raised on appeal before that court. (Petition

8a-9a.) The court below makes no reference to any federal

question. Petitioner never raised such issues in the state-court

16

proceedings below. Under Rodriguez and Caldwell, this Court

is without jurisdiction to review the state court opinion below.

As a result, it must deny this Petition for Certiorari.

IV.

EVEN IF A FEDERAL QUESTION OF FULL FAITH

AND CREDIT WERE RAISED, IT IS IRRELEVANT TO

THE DISPOSITION OF THIS MATTER.

As the text of the Appellate Division opinion makes clear,

any question of federal law would be irrelevant to the state-

court proceedings below. Petitioner’s New Jersey state court

proceedings do not arise out of his Pennsylvania judgment

(entered against Diversified) but instead from his assignment

of rights from Diversified based on the contract of insurance

between Diversified and NJRe. Specifically, petitioner received

a judgment in Pennsylvania that he reduced to judgment in New

Jersey against his employer, Diversified. Diversified entered into

a consent judgment in New Jersey whereby petitioner was

assigned all of Diversified’s contractual right against NJRe. As

discussed throughout this brief, the state court decisions below

considered only issues arising out of the contract of insurance.

Because the validity of petitioner’s Pennsylvania judgmient

against Diversified was never at issue, his full faith and credit

issues (raised only before this Court) would be irrelevant to the

proceedings below. The Court should therefore deny this Petition

for Certiorari.

17

CONCLUSION

For the reasons set forth above, the Court should deny the

Petition for Certiorari.

Respectfully submitted,

ROBERT L. CLIFFORD

Counsel of Record

McELROY, DEUTSCH & MULVANEY

Attorneys for Respondent

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, New Jersey 07962-2075

(201) 993-8100