Time: Mon Sep 29 09:28:22 1997
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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)

>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.
>                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 
>[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
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