449 U.S. 939 (1980)

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U.S. Supreme Court


449 U.S. 939

No. 79-6743

Supreme Court of the United States

November 3, 1980

The appeal is dismissed for want of jurisdiction.

Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

The issue on this appeal is whether the Georgia Supreme Court's reliance upon a newly announced state procedural rule requiring litigants to raise federal constitutional claims earlier than other claims constituted reliance upon an independent and adequate state ground barring this Court's jurisdiction.

Appellee Fulton-DeKalb Hospital Authority filed a complaint on February 5, 1975, against appellant Allison for hospital expenses incurred by his 16-year-old daughter when she gave birth to an illegitimate child. There was no contract between Allison and the hospital. Instead, the suit was brought under a now repealed Georgia paternal child-support statute making it the duty of the father to provide for the "maintenance, protection, and education of his child" until majority. Ga.Code 74-105 ( 1978).1

Page 449 U.S. 939 , 940

Allison's answer to the complaint denied owing any money; however, his answer failed to raise any constitutional challenge to the statute. In April 1976, the hospital answered interrogatories revealing, inter alia, that Allison was billed because of his status as father of the minor patient. Almost three years later, but still before the start of trial, Orr v. Orr, 440 U.S. 268 (1979), was decided by this Court, and Allison amended his answer to include an equal protection challenge to the statute. His case was tried several days later, and resulted in entry of judgment for the hospital. Observing that the debt was incurred more than four years before Orr was decided, the trial court, without analysis, concluded, inter alia, that the constitutional defense established by Orr should not be given retroactive effect.

On appeal, the Georgia Supreme Court affirmed the judgment, refusing to reach the constitutional question on the ground that it had not been timely raised. The court noted that under state case law, constitutional challenges must be raised "at the first opportunity," which the court interpreted as occurring when "the law which is subject to constitutional objection comes to the attention of the challenger's attorney," 245 Ga. 445, 446, 265 S.E.2d 575, 576 (1980). In this case, the court interpreted the rule to require constitutional challenge at least at the time the hospital answered Allison's interrogatories.

Because I entertain serious doubt whether our decided cases permit the Georgia Supreme Court to avoid decision of Allison's federal constitutional claim by charging him with the duty to anticipate application of the new procedural rule announced in his case, NAACP v. Alabama, 357 U.S. 449, 457-458, 1169-1170 ( 1958), and because I doubt in any event that the rule serves a legitimate state interest, Henry v. Mississippi, [449 U.S. 939 , 941]

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