# Opposition Brief — Tarapacki v. New Jersey ReInsurance Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1143

## Text

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

|

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’

i
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H

3

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

4

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.

5

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

6

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

7

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

8

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

9

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

13

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0119%3A2. Public record. Not legal advice.