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ALLISON v. FULTON-DE KALB HOSPITAL AUTHORITY.

November 3, 1980

ALLISON
v.
FULTON-DE KALB HOSPITAL AUTHORITY.



Reported below: 245 Ga. 445, 265 S.E. 2d 575.

[ 449 U.S. Page 939]

Appeal from Sup. Ct. Ga. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari 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-De Kalb 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 Instead, the suit was brought under a now repealed Georgia paternal child-support statute making it the duty of the father to provide for the "maintenance, protection, and education of his child" until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).*fn1

[ 449 U.S. Page 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 (1958), and because I doubt in any event that the rule serves a legitimate state interest, Henry v. Mississippi,

[ 449 U.S. Page 941379]

     U.S. 443, 447-448 (1965); Ward v. Board of County Comm'rs, 253 U.S. 17, 22-23 (1920), I think that the case presents a substantial federal question: whether the new rule constitutes an independent and adequate state ground precluding our consideration of Allison's federal constitutional claim.

The Georgia Supreme Court's interpretation of "at the first opportunity" is not supported by prior precedent in the Georgia case law.*fn2 But more important, Georgia's civil practice statute directly conflicts with the Georgia Supreme Court's interpretation. That statute states that a "party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pre-trial order." Ga. Code § 81A-115 (a) (1978). Appellant asserts, without contradiction from appellee, that there was no pretrial order entered prior to appellant's amendment of his answer. Therefore, it would appear that Allison was entitled to amend his pleading (as he did) under § 81A-115 (a) "as

[ 449 U.S. Page 942]

     a matter of course and without leave of court."*fn3 The Georgia Supreme Court, inexplicably, does not refer to this statute. Certainly appellant cannot be charged with anticipating the Georgia Supreme Court's interposition of this new procedural rule.*fn4 This is yet another case, therefore, where novelty in procedural requirements cannot defeat review by this Court when a party justifiably acted in reliance on prior state law. Blair v. Kentucky, No. 79-1795, and Carpenter v. ...


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