Time: Mon Sep 29 09:28:22 1997
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Date: Mon, 29 Sep 1997 07:45:42 -0700
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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
:
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