Brief for Respondent — Colgrove v. Battin

In the Supreme Court

United States

October Term 1972

No. 71-1442

LAND v. COLGROVE, Petitioner,

against

ONORABLE JAMES F. BATTIN,

ITED STATES DISTRICT JUDGE

R THE DISTRICT OF MONTANA,

LLINGS, DIVISION, Respondent.

D V. COLGROVE, Plaintiff,

vs. Civil No. 783

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY, Defendant.

Requesting an Order

on the Merits the

Ninth Circuit Court of

Appeals or, in the Alternative, Denying

the Petition for Writ of Certiorari.

CALE CROWLEY

P. O. Box 2529

Billings, Montana 59103

if Counsel for Respondent:

ale F. Galles

arwood Galles, Gunderson

Electric Buildin

lings, Montana 59101

INDEX

TABLE OF CONTENTS

QUESTION PRESENTED

LANGUAGE OF OUR UNITED STATES

CONSTITUTION AND ITS

HISTORICAL BACKGROUND

SIGNIFICANT CASES WHICH HAVE

CONSTRUED THE SEVENTH

AMENDMENT

PLACING WILLIAMS-STATE OF

FLORIDA IN ITS PROPER

PERSPECTIVE

CONCLUSION

UNITED STATES SUPREME COURT CASES

Baltimore and Carolina Line, Inc. vs. Redman, 1935,

295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636

Bloom v. State of Illinois, 391 U.S. 194, 88

8.Ct. 1477, 20 L.Ed.2d 522

Duncan v. State of Louisiana, May 20, 1968, 391

U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; reh. den.

392 US. 947 88A S.Ct. 2270, 20 L.Ed.2d 1412... 13

Ex Parte Peterson, 253 U.S. 300, 40 S.Ct. 543

64 L.Ed. 919

Galloway v. United States, 319 U.S. 372, 63

8. Ct. 1077, 87 L.Ed. 1458

Hanna v. Plumber, Mass., 1965, 380 U.S. 460 at

472, 85 S.Ct. 1136 at 1144, 14 L.Ed2d 8

Ross v. Bernhard, 1970, 396 U.S. 531,90 8. C

733, 24 L.Ed2d 729 11

Williams v. State of Florida, June 22, 1970,

399 U.S. 78, 90 S.Ct. 1893, L.Ed.2d 446 .. 3, 12, 15

CIRCUIT COURT CASES

„ Matezak, 3rd C. C., 1958, 254 F2d 525,

cert. den. 358 U.S. 816, 79 S.Ct. 24,

3 L.Ed.2d 58 9

Cooley v. Strickland Transport Co., Ii

MONTANA DISTRICT COURT RULES

Rule 13(d)(1) Zz 3

SUPREME COURT RULES

17

Rule 40

FEDERAL RULES OF CIVIL PROCEDURE

38(a) F.R.C.P. 16

83 F. R. C. P. 16

UNITED STATES CONSTITUTION

Article I (Clause 9, 18) 5,

Article III, Par. 1

Sixth Amendment

Seventh Amendment

In the Supreme Court

United States

October Term 1972

No. 71-1442

ROLAND v. COLGROVE, Petitioner,

against :

HONORABLE JAMES F. BATTIN, .

UNITED STATES DISTRICT JUDGE

FOR THE DISTRICT OF MONTANA,

BILLINGS, DIVISION, Respondent.

ROLAND V. COLGROVE, Plaintiff,

vs. Civil No. 783

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

-2-

QUESTION PRESENTED

Effective September 1, 1971, the District Court of

the United States for the District of Montana promul-

gated its district court Rule 13(d)(1) prescribing a jury

of six persons for the trial of civil cases. Petitioner re-

quested a mandate from the Ninth Circuit Court declar-

ing Rule 13(d)(1) void and invalid, and ordering the

District Court to try his civil, damage action before a

jury of twelve persons. The Ninth Circuit Court in a

written opinion, denied the application, and petitioner

has now applied to this court for a writ of Certiorari.

Respondent requests this court to summarily affirm

on the merits the opinion of the Ninth Circuit Court

on the briefs and without the necessity of oral argument.

As an alternative, we request that the petition for writ

of certiorari be denied.

STATEMENT OF POSITION

There is no constitutional language, no congres-

sional enactment, no rule of Federal Civil Procedure,

and no rule of the Supreme Court of the United States,

requiring that a jury for a civil, legal action shall con-

sist of twelve persons, nor preventing nor precluding

a district court from promulgating a rule of procedure

requiring a jury of six persons. Petitioner has failed

to place the constitutional language involved in its Prop-

er perspective in light of the historical background in

which the first seven articles of the Constitution were

promulgated at the first Constitutional Convention, and

-3-

in light of the historical background in which Amend-

ments 6 and 7 were promulgated by the first Congress.

Furthermore, petitioner has failed to give proper

or adequate consideration to the language of those de-

cisions of the Supreme Court of the United States which

have construed the scope of the Seventh Amendment in

other areas.

Finally, when Williams v. State of Florida, June

22, 1970, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446,

is placed in its proper perspective with the constitutional

language, its historical background, and other deci-

_ sions of this United States Supreme Court, it is

manifestly clear that the Montana United States Dis-

trict Court Rule 13(d)(1) is a valid and subsisting rule

of procedure, and that the Ninth Circuit Court should

be affirmed.

LANGUAGE OF OUR

UNITED STATES CONSTITUTION

AND ITS HISTORICAL BACKGROUND

We do not have available locally the debates of

the original constitutional convention. We do have,

however, the writings of numerous historians and, in

particular, the Federalist Papers published by Alex-

ander Hamilton. All historians agree that one of the

burning desires of all delegates was the protection of

the personal liberty of all citizens by requiring a jury

trial in all criminal cases. Hamilton's Federalist Paper

_ 83, published May 28, 1788, confirms the other his-

-4-

torians that we have read, that the provision for trial by

jury in criminal cases was considered a burning neces-

sity, and that it was also considered desirable to have

trial by jury in civil cases as an excellent method of de-

termining questions of property under proper regu-

lation (Lodge’s Federalist, page 521). The great dif-

ference in jury practice among the several states made

promulgation of a proviso that was satisfactory to all

concerned an extremely difficult matter. We under-

stand that there was a proposal made by Pennsylvania

that “trial by jury shall be as heretofore”; and a pro-

posal by Massachusetts for trial by jury in actions at

common law “if the parties requested it”; and that both

were defeated. We also understand that when the Com-

mittee on Style submitted its final draft to the conven-

tion on September 12, 1787, two modifications were then

proposed, one of which was a specific provision for jury

trials in civil cases. It was neither accepted nor reject-

ed, but was returned to the Committee on Style to pro-

vide such a clause for consideration. We likewise un-

derstand from the historians that the failure to include

any proviso thereafter in the original seven articles of

the Constitution was not because of any disagreement

concerning its advisibility, but because (1) the delegates

were then ready to go home; (2) the difficulities in

drafting a general rule that would satisfy all states be-

cause of the variety of court practices in the different

states; (3) there was some fear among convention leaders

-5-

that prolonged and protracted dispute and debate over

the issue might very well devastate the agreement that

had already been arrived at; (4) the delegates had ful-

filled the burning necessity for proserving the right of

jury trial in all criminal cases; and (5) last, but not least,

the responsible delegates felt that there was no danger

in leaving the drafting and determination with respect

to civil cases for Congress to promulgate in the future

under the powers vested in Congress in Section 8, Ar-

ticle 1, along with the judicial powers vested in such

inferior courts as might be created by Congress from

time to time as provided in Article III. Article I(8)

provides that Congress shall have power:

“To constitute tribunals inferior to the Su-

preme Court. (Clause 9)

Article III, paragraph 1, vests judicial power in

the one Supreme Court of the United States:

“and such inferior courts as the Congress may

from time to time ordain and establish.”

Article III likewise expressly provides that “the trial

of all crimes, except in cases of impeachment, shall be

by jury; .

We find additionally significant to our problem

_ the necessary and proper clause of Section &, Article I,

which vests power in Congress:

“To make all laws which shall be necessary and

proper for carrying into execution the foregoing

powers, and all other powers vested by this Con-

stitution and the government of the United States,

- in any department or officer thereof.” (Clause

-6-

None of the foregoing language of the original seven

articles of the original Constitution has ever been altered,

changed, nor disturbed in any manner.

Paper 83 of the Federalist by Alexander Hamilton

was published May 28, 1788, between adjournment of

the original convention and the convening of the first

Congress. He pointed out that the most severe criti-

cism of the first seven articles of the original Constitu-

tion that he heard in New York, and perhaps in all

the other states, was “relative to the want of the consti-

tutional provision for the trial by jury in civil cases.”

Many persons feared that by the failure of the Constitu-

tion to include such a provision, it was abolished. Ham-

ilton tried to allay such fears in Paper 83.

“A power to constitute courts is a power to

prescribe the mode of trail; and consequently, if

nothing was said in the Constitution on the subject

of juries, the legislature would be at liberty either

to adopt that institution or to let it alone.

(Pp. 518, Lodge, Pp. 357, Beard)

We add in addition to the power granted to constitute

the courts, the supplementary power vested in Congress

by the “Necessary and Proper” Clause 18 of Section 8

of Article I, coupled with the express vesting of judicial

power by Article IIT in all cases in law or equity in such

inferior courts as the Congress may from time to time

ordain and establish. Hamilton also stated: -

“The best judges of the matter will be the least

anxious for a constitutional establishment of the

trial by jury in civil cases, and will be the most ready

to admit that the changes which are continually

*

-7-

happening in the affairs of society may render a

different mode of determining questions of prop-

erty preferable in many cases in which that mode

of trial now prevails, * * * It is conceded by all

reasonable men that it ought not to obtain in all

cases. The examples of innovations which contract

its ancient limits, as well in these states as in Great

Britain, afford a strong presumption that its former

extent has been found inconvenient, and give room

to suppose that future experience may discover the

propriety and utility of other exceptions. I sus-

pect it to be impossible in the nature of the thing

to fix the salutary point at which the operation

of the institution ought to stop, and this is with me

a strong argument for leaving the matter to the dis-

cretion of the legislature.” (Lodge, Pp. 531-532)

It seems historically clear that the delegates desired

to preserve the right of trial by jury in both civil and

criminal cases, but a plan that would define the pre-

cise consistency of juries that would satisfy all delegates,

and all states, could not be drawn up. For that reason,

the Constitution required that the right of trial by jury

be preserved, but the plan for the consistency of juries

was left to the Congress to legislate from time to time

as needs might require.

The omission of any language in Amendments 6

and 7 adopted by the first Congress in 1789 which would

spell out or prescribe the number of jurors carries great

significance when viewed in the light of that historical

os “AMENDMENT 6

In all criminal prosecutions the accused shall

enjoy the right to a speedy annd public trial, by an

impartial jury of the state and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the ac-

cusation; to be confronted with the witnesses

against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the as-

sistance of counsel for his defense.

AMENDMENT 7

In suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact tried

by a jury shall be otherwise re-examined in any

court of the United States than according to the

rules of the common law.”

SIGNIFICANT CASES WHICH HAVE

CONSTRUED THE SEVENTH AMENDMENT

The language of Supreme Court decisions which

have construed the scope of the Seventh Amendment

in other areas is significant. ,

In an opinion by Justice Brandeis in Ex Parte

Peterson, 253 U.S. 300 40 S.Ct, 543, 64 L.Ed. 919, it

was said with respect to the Seventh Amendment:

“The command of the Seventh Amendment

that ‘the right of trial by jury shall be preserved ;

does not require that old forms of practice and

procedure be retained (citing cases 5 ). New

devices may be used to adapt the ancient institution

(jury trial) to present and to make of it an

efficient instrument in the administration of jus -

tice. Indeed, such changes are essential to the

reservation of the right. The limitation im 4

the amendment is merely that enjoyment of the

right of trial by jury be not obstructed, and · that

ultimate determination of issues of fact by the jury

de not interfered with.” (309-310, U.S.; 546, S. Ct.

923-924, L.Ed.) f '

“f

A

-9-

In Galloway v. United States, 319 U.S. 372, 63

S.Ct. 1077, 87 L.Ed. 1458, the Ninth Circuit Court had

affirmed the granting of a motion for directed verdict.

With respect to such procedure under the Seventh

Amendment the Supreme Court said in part:

The (Seventh) Amendment did not bind the

federal courts to the exact procedural incidents or

details of jury trial according to the common law

in 1791, any more than it tied them to the common-

law system of pleading or the specific rules of evi-

dence then prevailing. Nor were ‘the rules of the

common law’ then prevalent, including the jury’s

role on questions of fact, crystallized in a fixed and

immutable system. On the contrary, they were

constantly changing and developing during the late

eighteenth and early nineteenth centuries. In 1791

this process already had resulted in widely diver-

gent common law rules on procedural matters

among the states, and between them and England.

: Ed) (390-392, U.S.; 1087-1088, S. Ct.; 1471,

In Byrne v. Matczak, 3rd C. C., 1958, 254 F2d 525,

cert. den., 358 U.S. 816, 79 S.Ct. 24, 3 L.Ed.2d 58, a Dis-

trict Judge permitted a trial jury to disperse during de-

liberations, go to their homes, and return to their de-

liberations after a night of rest. It was argued that tra-

- ditionally at common law the trial jury had to be held

5 together intact while deliberating, and the failure to do

0 violated the right of trial by jury as guaranteed by the

8 Seventh Amendment. In rejecting such contention, the

court said:

15 “True, the allowance of a dispersal is contrary

to the old common law. And there is, in Dimick v.

-10-

Schiedt, 1935, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed.

603, strong language to the effect that the Seventh

Amendment perpetuated jury procedures as they

existed in 1791, However prior to Dimick v.

Schiedt, the entire development of this area was

to the effect that the constitutional conception of

jury trial is not inflexible in. all details, so long as

the essential elements of the institution are pre-

served, E.g., Gasoline Products Co. v. Champlin

Refining Co., 1931, 283 U.S. 494, 51 8. Ct. 513, 75

L.Ed. 1188; Ex parte Peterson, 1920 253 U.S. 300,

40 8. Ct. 543, 64 L.Ed. 919, and see generally Scott,

Trial by fury and the Reform of Civil Procedure,

1918, 31 Harv.L.Rev. 669. And since Dimick v.

Schiedt, supra, this older line of reasoning has been

reaffirmed in Galloway v. United States, 1943, 319

U.S. 372, 388-386, 63 S.Ct. 1077, 87 L.Ed. 1458.

In this view, fair new procedures which tend to

facilitate proper fact finding are allowable although

not traditional.” (528-529)

In Hanna v. Plumber, Massachusetts, 1965, 380

U.S. 400 at 472, 85 S.Ct. 1136 at 1144, 14 L.Ed. 2d 8,

the court said while construing the validity of service

of process under federal rule which apparently was

fatally defective under state court provisions:

“For the constitutional provision for a federal

court system (augmented by the Necessary and

Proper Clause) catries with it congressional power

to make rules governing practice and pleading in

those courts, which in turn includes power to reg-

ulate matters which, though falling within uncer-

tain area between substance and procedure, are ra-

tionally capable of classification as either.”

The phrase “common law” as first used ip the

Seventh Amendment was held to simply preserve the

right to a trial by jury in actions involving legal rights

11

as distinct from equitable rights (Ross v. Bernhard,

1970,, 396 U.S. 531, 90 S. Ot. 733, 24 L.Ed.2d 729).

The second usage in the amendment of the phrase

“common law” simply assured that no judge or judges

shall substitute their decisions on fact issues in the place

and stead of the fact findings of a jury (Baltimore and

Carolina Line Inc. v. Redman, 1935, 295 U.S. 654, 55

S.Ct. 890, 79 L.Ed. 1636).

Law Week's Summary & Analysis of Current Law,

May 2, 1972, states:

“Six-Member Civil Jury

Upheld By Fifth Circuit

Neither the Seventh Amendment nor Fed.R.

Civ.P. 48, the U.S. Court of Appeals for the Fifth

Circuit rules, prevents a federal district court from

limiting civil juries to six members (Cooley v.

Strickland Transportation Co., 4/21/72)

The court of r finds that Williams v.

Florida 399 U.S. 78, 38 LW 4557 (1970), answers

the constitutional arguments leveled against the six-

member civil jury. In Williams, the Supreme

Court held that an individual’s Sixth Amendment

right, as applied to the states through the Four-

teenth, were not violated by Florida’s decision to

provide a jury of six. No one, the court observes,

contends that the function of a civil jury is more

important than that of a criminal jury. Since

changes in the traditional jury do not offend the

concept of ‘trial by jury’ within the context of a

_ €riminal case, the same changes will not offend that

_ concept within the context of a civil case.

Nor does Rule 48 demand a contrary result.

The rule provides that ‘the parties may stipulate

chat the jury shall consist of any number less than

12 but that a verdict or finding of a stated majority

- 12-

of the jurors shall be taken as the verdict or finding

of the jury’. Although it is * that absent a

stipulation to reduce the size of the jury, the rule

guarantees a 12-member jury, the court finds that

the argument is misplaced. The drafters of the

rules knew how to use express a to guaran-

tee a IA. member jury, as evidence by Fed. R. Crim. P.

23(b). Furthermore, the court notes, Rule 48

deals only with a stipulation by ‘the parties’. It

does not purport to prevent court rules that ne

vide for civil juries of reduced size, (Page 2718)”

We do not yet have the Federal Reporter citation.

When the language of the Seventh Amendment is

considered in light of the historical background, in light

of the language of the foregoing decisions of the Supreme

Court construing the scope of the amendment in other

areas, in light of the two opinions of the Fifth and Ninth

Circuit Courts of Appeal, and in light of the decision

in Williams v. State of Florida when considered in its

proper perspective, the conclusions drawn by petitioner

are simply not warranted.

PLACING WILLIAM-STATE OF FLORIDA

IN ITS PROPER PERSPECTIVE

Prior to the decision of the Supreme Court of the

United States in Williams vs. State of Florida, June 22,

1970, 399 U.S. 78, 90 S. Ot. 1893, 26 L.Ed.2d 446, no case

presented the precise, specific issue of whether or not

the scope of the right of trial by jury guaranteed in

criminal cases by the Sixth Amendment, or in civil ‘cases

by the Seventh Amendment, required the number of

jurors to be fixed precisely at twelve. We find the Wil.

-13-

liams case to be of particular significance since it did

involve the right of trial by jury in a criminal case. Cer-

5 tainly, if the language of the Constitution cannot be con-

strued as requiring any particular number of jurors in

a criminal case, it is difficult to see how it can be so con-

strued to prescribe the number of jurors in a civil case.

| We also feel that case decisions handed down short-

i before Williams-State of Florida assist in placing that

case in its proper perspective.

In Duncan v. State of Louisiana, May 20, 1968, 391

US. 145, 88 S. Ot. 1444, 20 L.Ed.2d 491; reh. den. 392

. 947, 884 S. Ot. 2270, 20 L-Ed.2d 1412, a dissenting

opinion by Justice Harlan, joined by Justice Stewart,

"stated in part:

“* * * Tf the problem is to discover and articu-

late the rules of fundamental fairness in criminal

proceedings, there is no reason to assume that the

whole body of rules developed in this Court con-

stituting Sixth Amendment jury trial must be re-

garded as a unit. The requirement of trial by jury

in federal criminal cases has given rise to numerous

subsidiary questions respecting the exact scope and

content of the right. It surely cannot be that every

answer the Court has given, or will give, to such a

tion is attributable to the Founders; or even

at every rule announced carries equal conviction

of this Court; still less can it be that every such sub-

Principle is equally fundamental to ordered liberty.

that the rule, imposed long ago in the federal courts,

that ‘jury’ means ‘jury of exactly twelve’, is not fun-

tal to anything: there is no significance except

- 14-

to — in the number 12. Again, trial by jury

has held to require a unanimous verdict of

jurors in the federal courts, although unanimity

has not been found essential to 1 in Britain,

where the irement has been abandoned.” (78/7,

U.S., 514, Is, S.Ct.)

The foregoing language of Justice Harlan was partially

utilized by the majority in Williams-State of Florida:

“We conclude, in short, as we began: the fact

that the jury at common law was composed of pre-

cisely 12 is a historical accident, unnecessary to ef-

the purposes of the jury system and wholly without

significance em to mystics’. Duncan v. Louisi-

ana, supra, at 182, 20 L 2d at 514 (Harlan, J.,

dissenting).” (102, U.S., 461, L.Ed.2d; 1907, S. Oi.)

On May 20, 1968, when Duncan-State of Louisiana

was handed down, the court likewise rendered its deci-

sion in Bloom v. State of Illinois, 391 U.S. 194, 88 S. Ct.

1477, 20 L.Ed. 2d 522, in which the Supreme Court of

the United States held that under the Sixth Amendment

states are compelled to afford the right of a trial by jury

in any prosecution for serious criminal contempt. In a

concurring opinion, Justice Fortas stated:

“But although I agree with the decision of the

8 cannot a with the implication, see ante,

20 L Ed 2d at 501, n.30, that the tail must go with

the hide: that when we hold, influenced by the Sixth

Amendment, that ‘due process’ requires that the

States accord the right of jury trial for all but petty

offense, we automatically import all of the ancil-

lary rules which have been or may hereafter be de-

veloped incidental to the right to jury trial in. the

federal courts, I see no reason whatever, for ex-

ample to assume that our decision today should re-

quire us to impose federal requirements such as

unanimous verdicts or a jury of 12 upon the States.

-15-

We may well conclude that these and other features

of federal jury practice are by no means fundamen-

tal—that they are not essential to due process of law

—and that they are not obli tory on the States,”

(213, U.S., 535, L.£Ed.2d; 1451, §.Ct.)

We shall not belabor William v. State of Florida,

399 U.S. 78, 90 S. Ot. 1893, 26 L.Ed.2d 446, which held:

“* * * The question in this case then is whether

the constitutional guarantee of a trial by ‘jury’ nec-

essarily requires trial by exactly 12 persons, rather

than some lesser number—in this case six. We hold

that the 12 man panel is not a necessary ingredient

of ‘trial by jury’, and that respondent’s refusal to

impanel more than six members provided for by

Florida law did not violate petitioner’s Sixth

Amendment rights as applied to the states throu

5 N (86, U.S., 452, L.Ed2d; 1 8,

Ot.

When Williams-State of Florida, considered in per-

spective, upheld the constitutional validity of a jury of

six persons in a criminal case, then the validity of a dis-

trict court rule requiring six jurors in civil cases should

be even more clear.

CONCLUSION

, Historically, the framers of our Constitution were

Vitally concerned with protecting and preserving per-

Sonal liberty through a requirement of a trial by a fair

“and impartial jury. It was likewise considered desira-

dle in civil cases. Because of the great differences be-

tween court practices in the various states, the designing

a detailed plan that would satisfy all was extremely

icult. The intention to preserve the ancient distinc-

-16-

tions in civil cases between law and equity is clear.

Otherwise, the right of trial by jury was preserved in

both criminal and civil actions through general lan-

guage substantially identical for both classes. The Con-

stitution has never prescribed nor required the number

of jurors in any case. Instead, the Constitution em-

powered Congress to create the inferior courts, and to

regulate their conduct through the Necessary and Prop-

er Clause, and thereby to make any changes from time

to time as changing conditions might require. The Su-

preme Court by criminal procedural rules requires a

twelve-man jury in criminal cases, but there is no rule

promulgated by the Supreme Court which spells out or

requires a twelve-man jury in civil cases. All that is

required by 38(a) F. R. C. P. is the right to a trial by

jury in civil cases “as declared by the Seventh Amend-

ment”, and nothing more. District courts have, of

course, been vested with rule-making power where such

does not contradict or conflict with statutes or other Su-

preme Court rule (83 F.R.C.P.). The rule promul-

gated by the United States District Court for the Dis-

trict of Montana prescribing the number of jurors for

the trial of civil cases was authorized under Rule 83,

and is a valid and subsisting rule.

We respectfully submit in view of the importance

and simplicity of the only question presented that the

opinion of the Ninth Circuit Court be affirmed forth-

17

with, and without the necessity of oral argument. In

the interest of the earliest possible decision on the merits,

we request that this brief of respondent be accepted

under Rule 40 as @ brief on the merits, At om alterna-

tive, we request that the petition for writ of certiorari

be denied.

.

Billings.

Attorney for