Opposition Brief — Hendrex v. Michigan

| NOV 21 1955

HAROLD B. WILLEY, Clerk

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1955

No. 264 Misc.

JOE HENDREX

Petitioner

v.

THE STATE OF MICHIGAN

Respondent

Brief in Opposition to a motion for leave to file a Petition

for Extraordinary Writ of Certiorari

Thomas M. Kavanagh

Attorney General of Michigan

Edmund E. Shepherd

Solicitor General of Michigan

Daniel J. O’Hara

Assistant Attorney General of

Michigan

Counsel for Respondent

The Capitol,

Lansing 2, Michigan.

SPEAKER-HINES AND THOMAS, INC., STATE PRINTERS, LANSING, MICH.——1955

1

INDEX

Page

Argument 1

Conclusion .... 4

CASES CITED:

Albertson v. Millard, Attorney General, 345 US 242 ...... 3

Bankers Life & Casualty Co. v. Holland, 346 US 379 ...... 2-3

De Beers Consc'idated Mines v. United States, 325 US

212 2

Dixon v. Duffy, 342 US 33 ....

House v. Mayo, 324 US 42

In re Commonwealth of Massachusetts, 197 US 482

Ex parte Abernathy, 320 US 219

Ex parte Betz, 329 US 672 ...

Ex parte Bollman and Swartwout, 4 Cranch 15

Ex parte Fahey, 332 US 258

Ex parte Hawk, 321 US 114

Ex parte Peru, 318 US 578

Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 US

157

People of State of Michigan v. Daniel William Stanley,

Mich. Sup. Ct.

Roberts v. U. S. District Court, 339 US 844

Roche v. Evaporated Milk Assn., 319 US 21

U. S. Alkali Export Assn. v. United States, 325 US 196..

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1955

No. 264 Misc.

JOE HENDREX

Petitioner

Vv.

THE STATE OF MICHIGAN

Respondent

Brief in Opposition to a motion for leave to file a Petition

for Extraordinary Writ of Certiorari

Argument

In substance what petitioner seeks here is a mandate to

compel the Supreme Court of Michigan to grant an appeal

in the case at bar.

The Petition for an Extraordinary Writ of Certiorari

seeks such writ because the Supreme Court of Michigan

denied an Application for Leave to Appeal from the Judg-

ment and Sentence of the Recorder’s Court for the city of

Detroit.

We are of the view that petitioner had an adequate

remedy by application for certiorari to the Recorder’s

Court for the City of Detroit,

Michigan-Wisconsin Pipe Line Co. v. Calvert, 347

US 157.

ello

Title 28 USCA § 1651 (a) provides:

‘‘The Supreme Court and all courts established by

Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.”’

In Bankers Life & Casualty Co. v. Holland, Chief Judge,

346 US 379 at p 382 it is said:

‘“‘The All Writs Act grants to the federal courts the

power to issue ‘all writs necessary or appropriate in

aid of their respective jurisdictions and agreeable to

the usages and principles of law.’ 28 U.S. C. § 1651 (a).

As was pointed cut in Roche v. Evaporated Milk Assn.,

319 US 21, 26 (1943) the ‘traditional use of the writ

in aid of appellate jurisdiction both at common law

and in the federal courts has been to confine an inferior

court to a lawful exercise of its prescribed jurisdiction

or to compel it to exercise its authority when it is its

duty to do so.’ * * *

‘‘The supplementary review power conferred on the

courts by Congress in the All Writs Act is meant to

be used only in the exceptional case where there is a

clear abuse of discretion or ‘usurpation of judicial

power’ of the sort held to justify the writ in De Beers

Consolidated Mines v. United States, 325 US 212, 217.”’

The Court will note that in Dizon v. Duffu, 342 US 33,

343 US 393, 344 US 143, the procedure followed was regular

certiorari to the Supreme Court of California and not the

supplementary review power conferred on the courts by

Congress in the All Writs Act.

There is now pending in the Supreme Court of the State

of Michigan on appeal from the Recorder’s Court for the

a |

icles

City of Detroit the case of The People of the State of Mich-

igan v. Daniel William Stanley challenging the constitution-

ality of Act 53 Public Acts of Michigan 1954 allowing Writs

of Error as of right in criminal eases, the question involved

being one of local law. And the Supreme Court of Michigan

should have the first opportunity of passing upon the consti-

tutionality of a local law,

Albertson v. Millard, Attorney General, 345 US 242.

In the ease of In re Commonwealth of Massachusetts, 197

US 482 this Court held that in cases over which this Court

has no original or appellate jurisdiction it cannot grant

prohibition, mandamus or certiorari as ancillary thereto.

The issuance by the Court of any writ authorized by 28

USCA § 1651 (a) is not a matter of right but of sound dis-

cretion sparingly exercised,

Ex parte Bollman and Swartwout, 4 Cranch 15,

Ex parte Peru, 318 US 578,

Ex parte Abernathy, 320 US 219,

Ex parte Hawk, 321 US 114,

House v. Mayo, 324 US 42,

U. S. Alkali Export Assn. v. United States, 325 Us

196,

De Beers Consol Mines v. United States, 325 US 212,

Ex parte Betz, 329 US 672,

Ex parte Fahey, 332 US 258.

The writs, however, ‘‘are drastic and extraordinary reme-

dies’’ to be ‘‘reserved for really extraordinary causes,’’ in

which ‘‘appeal is a clearly inadequate remedy.’’ Ex parte

Fahey, 332 US 258, 259, 260. See also Bankers Life Co. v.

Holland, 346 US 379, 383; Roberts v. U. 8. District Court,

339 US 844, 845. The Court allows them very sparingly.

allies

See Supreme Court Practice (2d Ed) Stern and Gressman,

page 280.

Conclusion

In our view the remedy sought here is inappropriate and

the petition should be denied.

Respectfully submitted,

Thomas M. Kavanagh

Attorney General of Michigan

Edmund E. Shepherd

Solicitor General of Michigan

Daniel J. O’Hara

Assistant Attorney General of

Michigan

Counsel for Respondent

The Capitol,

Lansing 2, Michigan.