Time: Mon Sep 29 09:28:22 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id IAA06097; Mon, 29 Sep 1997 08:02:10 -0700 (MST) by usr01.primenet.com (8.8.5/8.8.5) with SMTP id HAA25749; Mon, 29 Sep 1997 07:46:09 -0700 (MST) Date: Mon, 29 Sep 1997 07:45:42 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: 7 Steps to The High Court (fwd) <snip> > >Subject: 7 Steps to The High Court > >Here are the seven steps required before the U.S. Supreme Court will >even consider hearing a case. >-- >Doug > ASK the RIGHT QUESTION of the COURT! > >--------------------------------------------------------------------- > >In a concurring opinion in the U.S. Supreme Court case of Ashwander >v. TVA, 297 US 288 (1936), Justice Brandeis laid out 7 "rules" one >must follow to qualify a constitutional question or statutory >challenge for consideration by the U.S. Supreme Court. Amazingly, on >appeal, one can have the right issue and solid facts, but if one asks >the wrong question of the U.S. Supreme Court one's appeal will get >the proverbial axe! Realize also that one cannot ask the U.S. Supreme >Court a question that has not already been asked of every appellate >court visited along the way to the U.S. Supreme Court. > >--------------------------------------------------------------------- > >Ashwander v. TVA, 297 US 288 (1936) > >"The Court developed, for its own governance in the cases confessedly >within its jurisdiction, a series of rules under which it has avoided >passing upon a large part of all the constitutional questions pressed >upon it for decision. They are:" [Ashwander, pg. 346, emphasis >added]. > >--------------------------------------------------------------------- >[RULE #1] . . "The Court will not pass upon the constitutionality of >legislation in a friendly, nonadversary, proceeding, declining >because to decide such questions 'is legitimate only in the last >resort, and as a necessity in the determination of real, earnest, and >vital controversy between individuals. It was never thought that, by >means of a friendly suit, a party beaten in the legislature could >transfer to the courts an inquiry as to the constitutionality of the >legislative act.' Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U.S. >339, 345..." [Ashwander, pg. 346]. > >--------------------------------------------------------------------- >[RULE #2] . . "The Court will not 'anticipate a question of >constitutional law in advance of the necessity of deciding it.' >Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Commissioners, >113 U.S. 33, 39...; Abrams v. Van Schaick, 293 U.S. 188...; Wilshire >Oil Co. v. United States, 295 U.S. 100...[.] 'It is not the habit of >the court to decide questions of a constitutional nature unless >absolutely necessary to a decision of the case.' Burton v. United >States, 196 U.S. 283, 295..." [Ashwander, pg. 346, emphasis added]. > >--------------------------------------------------------------------- >[RULE #3] . . "The Court will not 'formulate a rule of constitutional >law broader than is required by the precise facts to which it is to >be applied.' Liverpool, N.Y. & Phila. Steamship Co. v. Emigration >Commissioners, [113 U.S. 33]." [Ashwander, pg. 347, emphasis added]. > >--------------------------------------------------------------------- >[RULE #4] . . "The Court will not pass upon a constitutional question >although properly presented by the record, if there is also present >some other ground upon which the case may be disposed of. [...] Thus, >if a case can be decided on either of two grounds, one involving a >constitutional question, the other a question of statutory >construction or general law, the Court will decide only the latter. >Silver v. Louisville & Nashville R. Co., 213 U.S. 175, 191...; Light >v. United States, 220 U.S. 523, 538...[.] Appeals from the highest >court of a state challenging [the state court's] decision of a >question under the Federal Constitution are frequently dismissed >because the judgment can be sustained on an independent state ground. >Berea College v. Kentucky, 211 U.S. 45, 53..." [Ashwander, pg. 347, >emphasis added]. > >--------------------------------------------------------------------- >[RULE #5] . . "The Court will not pass upon the validity of a statute >upon complaint of one who fails to show that he is injured by its >operation. Tyler v. Judges, etc., 179 U.S. 405...; Hendrick v. >Maryland, 235 U.S. 610, 621...[.] Among the many applications of this >rule, none is more striking than the denial of the right of challenge >to one who lacks a personal or property right. Thus, the challenge by >a public official interested only in the performance of his official >duty [NOT A PROPERTY RIGHT] will not be entertained. Columbus & >Greenville Ry. Co., v. Miller, 283 U.S. 96, 99, 100...[.] In >Fairchild v. Hughes, 258 U.S. 126...the Court affirmed the dismissal >of a suit brought by a citizen who sought to have the Nineteenth >Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 >U.S. 447...the challenge of the federal Maternity Act was not >entertained although made by the commonwealth on behalf of all its >citizens." [Ashwander, pg. 347, emphasis added]. > >--------------------------------------------------------------------- >[RULE #6] . . "The Court will not pass upon the constitutionality of >a statute at the instance of one who has availed himself of its >benefits. Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581...; >Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 411, 412...; St. >Louis Malleable Casting Co. v. Prendergast Construction Co., 260 U.S. >469..." [Ashwander, pg. 348, emphasis added]. > >--------------------------------------------------------------------- >[RULE #7] . . " 'When the validity of an act of the Congress is drawn >in question, and even if a serious doubt of constitutionality is >raised, it is a cardinal principle that this Court will first >ascertain whether a construction of the statute is fairly possible by >which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, >62..." [Ashwander, pg. 348, emphasis added]. > >--------------------------------------------------------------------- ======================================================================== Paul Andrew Mitchell, Sui Juris : Counselor at Law, federal witness B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine : tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this _____________________________________: As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
Return to Table of Contents for
Supreme Law School: E-mail