Alt v. City of Biloxi

• Decision Date: 06 May 1981
• Docket Number: No. 52610,52610
• Citation: 397 So.2d 897
• Parties: Bev ALT v. CITY OF BILOXI.
• Court: Mississippi Supreme Court

Page 897

397 So.2d 897

Bev ALT v. CITY OF BILOXI.

No. 52610.

Supreme Court of Mississippi.

May 6, 1981.

Sue Esther Dulin, Tommy Dulin, Dulin & Dulin, Gulfport, for appellant.

Paul J. Delcambre, Jr., Page, Mannino & Peresich, Michael B. McDermott, Biloxi, for appellee.

Before SMITH, P. J., and LEE and BOWLING, JJ.

SMITH, Presiding Justice, for the Court:

This case originated in the Municipal Court of the City of Biloxi. Appellant, Bev Alt, was arrested on June 5, 1979 for violating an ordinance of the City of Biloxi, adopted under its police power, regulating vendors operating in the strip of public beach of the city, lying between U.S. Highway 90 and the Gulf of Mexico.

In the Municipal Court Alt entered a plea of nolo contendere and was found guilty. From his conviction, he appealed to the County Court of Harrison County. In that court, following a trial de novo, he was again convicted and sentenced to pay a fine of $300, all of which was suspended. From that conviction, he appealed to the Circuit Court of Harrison County, where the case was heard on the record and Alt's conviction and sentence affirmed.

Alt now seeks to maintain an appeal to this Court, assigning as error:

1. The trial court committed error by refusing to hold Biloxi Municipal Ordinance 1229 unconstitutional or otherwise invalid.

2. The trial court committed error in refusing to grant him a judgment notwithstanding the verdict or a new trial.

Mississippi Code Annotated section 11-51-81 (1972) provides in part:

All appeals from courts of justices of the peace, special and general, and from all municipal courts shall be to the county court under the same rules and regulations as are provided on appeals to the circuit court.... And from the final judgment of the county court in a case appealed to it under this section, a further appeal may be taken to the circuit court on the same terms and in the same manner as other appeals from the county court to the circuit court are taken: ... (P)rovided further that there shall be no appeal from the circuit court to the supreme court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the supreme court. (Emphasis added).

While the record does not reflect that a request was made to the circuit court judge by Alt for leave to appeal to this Court or by him rejected, Alt's motion for permission to file an appeal was sustained by a justice of this Court under the provisions of the above statute.

Appellee has moved to dismiss the appeal upon the ground that, although permission to file has been granted, the case is not one in the determination of which "a constitutional question be necessarily involved."

Thus, the threshold question is whether the appeal falls within the exception set out in the statute and is a case in the determination of which "a constitutional question be necessarily involved."

On his appeal from the County Court to the Circuit Court of Harrison County Alt assigned as error for reversal several "constitutional" grounds. However, by filing what he terms an "England certificate" ¹ Alt informed the circuit court that he withdrew these questions from determination by the circuit court, "reserving" them for federal court.

In Alt's appeal brief, he devotes only some twenty lines to his proposition "Constitutional Grounds." In this section of his appeal brief, Alt cites no case or other authority and there are no references in it to pages in the record or in the abstract relating his constitutional objections to the facts or circumstances of the case or to the provisions of the ordinance complained of. Clearly, it was not intended that these questions be submitted to the circuit court and they were not. Apparently, judging from Alt's appeal brief, they were deliberately not briefed seriously in his purported appeal here so as to present them for decision by this Court. It is the fixed policy of this Court not to issue advisory opinions.

An appellant to this Court from the circuit court may not, by refusing or neglecting to present his objections and have them passed upon by the circuit court, thus bypass that court and present them here for the first time.

In his appeal brief in this Court, Alt asserts: "Appellant has presented these grounds to the federal court by filed complaint. The federal court is abstaining pending the outcome of this decision in the event this decision would eliminate the need to litigate the matter to a conclusion in federal court."

The record, however, names no specific federal court, is devoid of copies of pleadings or orders of any federal court, and contains no other information relating to the "filed complaint." There is in the record no copy of an order of a federal court "abstaining" in the premises of the case. The certificate filed in the circuit court was as follows:

ENGLAND CERTIFICATE

RESERVATION TO THE DISPOSITION OF THE ENTIRE CASE BY THE STATE COURT

Comes now the Appellant, Bev Alt, by and through his attorney, Tommy Dulin, and hereby informs the Court that he is exposing his federal claims to the Court only for the purpose of complying with Government and Civic Employees Organizing Committee v. Windsor, 343 (353) U.S. 364, 77 S.Ct. 838 (1 L.Ed.2d 894), and that the Appellant herein intends, should this Court hold against him on the question of state law, to return to the District Court for disposition to his federal contentions. (Emphasis added).

In keeping with this, Alt did not submit to the circuit court judge any of his so-called "constitutional" grounds, as set out in his assignments of error on his appeal to that court, but effectively withdrew such questions from that court's consideration.

This is a criminal prosecution. Alt has been tried and found guilty, has twice appealed and his conviction affirmed. We can only conclude that there has been a misapprehension as to the application of the "England" rule.

The abstention doctrine is explained in 20 Am.Jur.2d Courts section 14 (1965) as follows:

Where a party has a choice between state and federal courts and chooses the federal court, the federal court may, under the doctrine of abstention, order a stay of proceedings, on the ground that if unsettled questions of state law are first decided, the settlement of those questions might end the controversy, and that therefore the decision of the federal questions involved should be deferred until the state law questions are decided in a state court. Such abstention does not involve abdication of federal jurisdiction, but only the postponement of its exercise. It does not interfere with the right of a plaintiff, who has the option between federal and state jurisdiction, to choose the federal jurisdiction; nor does it preclude a litigant, remitted to the state court for decision of the state law issue, from returning to the federal court for determination of the federal questions, unless he has waived this right. (Emphasis added).

To preserve the right to return to the Federal Court for the resolution of federal constitutional issues a litigant must file an...