Petition for Writ of Certiorari — Shirley v. Schraer

} FILED |

§8-712 CT 6 1888

JOSEPH F. SPANIOL, JR,

a

No. 88-5525

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

RALPH B. SHIRLEY

and

SOCIETY OF SEPARATIONISTS, INC.,

dicceal Petitioners,

Vv.

JOSEPH G. SCHRAER, POSTMASTER,

UNITED STATES POSTAL SERVICE

SAN ANTONIO DIVISION, AND

ANTHONY M. FRANK, POSTMASTER GENERAL

OF THE UNITED STATES

Tee Respondents,

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Ralph B. Shirley, pro se

Member, District of Columbia Bar

7215 Cameron Road, Austin, Texas 78752

(512) 458-3342

October 5, 1988

Austin, TX # American Atheist Press # (512) 458-1244

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

RALPH B. SHIRLEY

and

SOCIETY OF SEPARATIONISTS, INC.,

jovial Petitioners,

V.

JOSEPH G. SCHRAER, POSTMASTER,

UNITED STATES POSTAL SERVICE

SAN ANTONIO DIVISION AND

ANTHONY M. FRANK, POSTMASTER GENERAL

OF THE UNITED STATES

asuiads Respondents,

De RINSE ARR A AO 5 MSHA SE

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Ralph B. Shirley, pro se

Member, District of Colulmbia Bar

7215 Cameron Road, Austin, Texas 78752

(512) 458-3342

QUESTIONS PRESENTED

1. Where the United States Court of Appeals for the Fifth

Circuit stated that “Plaintiffs appeal, contending that the issue

is not moot because of the ‘probability’ that the Postal Service

‘will certainly again be afiorded an opportunity to commemorate

Pope John Paul Il, his successor, some other similar sectarian

leader or leaders.’,” and then failed to make any decision as to

“some other similar sectarian leader or leaders,” should the

case be remanded to that court to make a decision on the

question presented as stated by that court?

2. Whether Petitioners’ timely-filed claims for injunctive and

declaratory relief based on the Establishment and Free Exercise

clauses of the First Amendment to the United States Constitution

regarding the United States Postal Service’s pictorial stamp

cancellation commemorating the visit of Pope John Paul Il to the

United States in September of 1987, following the Postal

Service’s eight year established course of action of

commemorating all visits by the Pope (once in 1979, once in

1981, twice in 1984, once in 1987), are not moot and are capable

of repetition yet evading review when the Postal Service

announced its 1987 plans to commemorate the Pope’s visit only

weeks in advance.

LIST OF ALL PARTIES

RALPH B. SHIRLEY, Petitioner and Plaintiff below.

SOCIETY OF SEPARATIONISTS, INC., Petitioner and

Plaintiff below.

JOSEPH G. SCHRAER, Postmaster, United States Postal

Service, San Antonio Division, and ANTHONY M. FRANK,

Postmaster General of the United States, Respondents and

Defendants below.

TABLE OF CONTENTS

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Seabee GE GD GD oaicccncsccvsecckenscsaenssvedecsesenl 2

Sepmmmnnay OF Hie AON ona acces cccccncasscnsnanvccsscenas 3

Reasons for Granting the Writ .................. ccc cece ee ceee 4

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Contain 68 Bee isc ccc ncsesseccscsseccspessccceeitee 13

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A) Memorandum and Recommendation of Mag-

istrate, U.S. District Court, Western District

of Texas, San Antonio Division, 10 September

ROOU ivactscdccesatésoss0eh idee ee 17

B) Order Concerning Service and Notice of Right

to Object/Appeal, U.S. District Court, Western

District of Texas, San Antonio Division, 10

Saphesteet TH. inuksctcsadersavesan at eae at Ta 23

C) Order Adopting Memorandum and Recom-

mendation of Magistrate, U.S District Court,

Western District of Texas, San Antonio Divi-

chom,, 11 Septeme TH so ivccccccaccacddsvssaschsce 25

D) Order Denying Preliminary Injunction, U.S.

District Court, Western District of Texas,

San Antonio Division, 11 September 1987 .......... 27

E) Order of Dismissal based on mootness, U.S.

District Court, Western District of Texas, San

Antonio Division, 14 January 1988 ..............-.. 29

F) Judgment Dismissing, without prejudice, U.S.

Bistrict Court, Western District of Texas, San

Antonio Division, 14 January 1988 ................-. 31

G) Summary Calendar Order Affirming District

Court, U.S. Court of Appeals, Fifth Circuit, 8

PD. PTT er 33

H) Defendant's Opposition to Plaintiffs’ Application

for Preliminary Injunction, Exhibit 1, page 9,

filed September 10, 1987 ...........---.0eeeeeeeeeees 37

1) Excerpt from Catholic Trends journal, Vol.

18, No. 2, 22 August 1967 ..........cscssccceseeeees 39

TABLE OF AUTHORITIES

CASES Page

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) ......... 5

Alaska v. American Can Co., 358 U.S. 2324 (1959) ......... 11

Barr v. Matteo, 355 U.S. 171 (1957) ....................2... 11

Barrett v. Roberts, 551 F.2d 662 (5th Cir 1977) .............. 8

City of Los Angles v. Lyons, 461 U.S. 95 (1982) ............. 4

County of Los Angeles v. Davis, 440 U.S. 625 (1979) ....... 10

DeFunis v. Odegaard 416 U.S. 312 (1974) ................... 5

TR "R fih Bf). 7 | ee ennE DEE 6

Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979) ....... 6

Hall v. Board of School Commissioners of Conecuh

County, 656 F.2d 999 (5th Cir. 1981) ............. 6, 10

Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260

a My Ccswkidéuinnevasebasbuneuaceceebecasanes 6

Murphy v. Hunt, 455 U.S. 478 (1982) ..................... 6,9

Papassan v. Allain, 106 S. Ct. 2932 (1987) .................. 11

Roe v. Wade, 410 U.S. 113 (1973) ....................24.. 6, 11

a, @, mem, GRE US. BOB (ISTE) 2... .ccccccccccccccccscses 6

U.S. v. New York Tel. Co., 434 U.S. 159 (1977) ............ 10

U.S. v. W. T. Grant, Co., 345 U.S. 629 (1953) .............. 10

Valley Constr. Co. v. Marsh, 714 F.2d 26

| Ee TE RRR YS Sols ea eT er eee 7

Weinstein v. Bradford, 423 U.S. 147 (1975) .................. 9

Wirtz v. Glass Blowers Local 153, 389 U.S. 463, 474 ....... 11

UNITED STATES CONSTITUTION

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STATUTE:

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vi

OPINIONS BELOW

The recommendation order of the United States Magistrate

suggesting to the District Court that a preliminary injunction not

issue is included herewith as Appendix A and Appendix B.

The original order, and opinion of the United States District

Court, Western Division of Texas, San Antonio Division

denying the preliminary injunction and dismissing the action

upon such recommendation are not reported but are included

herewith as Appendix C and D.

The original order, opinion, and judgment of the United

States District Court, Western Division of Texas, San Antonio

Division dismissing the action as moot are not reported but is

included herewith as Appendix E and Appendix F.

The original judgment and opinion of affirmance of the Court

of Appeals for the Fifth Circuit is not reported but is included

herewith as Appendix G.

Vil

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

No. 88-5525

RALPH B. SHIRLEY

and

SOCIETY OF SEPARATIONISTS, INC.,

estaba Petitioners,

V.

JOSEPH G. SCHRAER, POSTMASTER,

UNITED STATES POSTAL SERVICE,

SAN ANTONIO DIVISION

and

ANTHONY M. FRANK, POSTMASTER GENERAL

OF THE UNITED STATES

Scakeads Respondents,

Petition for Writ of Certiorari to

The United States Court of Appeals

for the Fifth Circuit

Petitioners, Ralph B. Shirley and the Society of Separation-

ists, Inc., ask that a Writ of Certiorari issue to review a judgment

of the United States Court of Appeals for the Fifth Circuit

entered on July 8, 1988, affirming an order of the United States

District Court for the Western District of Texas, San Antonio

Division. The District Court dismissed as moot Petitioners’

original 42 U.S.C. §1983 action requesting injunctive and declar-

atory relief involving the Establishment Clause of the First

Amendment to the United States Constitution. The underlying

action challenges the philatelic commemoration by the United

States Postal Service of the September, 1987 pastoral visit to

the United States of Mr. Karol Wojtyla (a.k.a., Pope John Paul

II — the potentate of the Roman Catholic Church).

Jurisdiction

The jurisdiction of this Court is invoked on the ground that

the United States Court of Appeals for the Fifth Circuit has

decided a question of federal law herein which conflicts with ap-

plicable decisions of this Court. Alternatively, the United States

Court of Appeals for the Fifth Circuit has decided a question of

federal law which has not been, but should be, settled by this

Court.

The final judgment of the United States Court of Appeals for

the Fifth Circuit was entered on July 8, 1988. Jurisdiction of this

Court is timely and invoked under 28 U.S.C. §2102 (c) and 28

U.S.C. §1254 (1).

Constitutional Provision Involved

The First Amendment to the Constitution of the United

States provides in pertinent part as follows:

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof.”

l

Statement of the Case

Petitioners filed their complaint in this action on August 25,

1987 in the United States District Court for the Western District

of Texas, San Antonio Division. Petitioners sought injunctive

and declaratory relief pertaining to the United States Postal Ser-

vice’s plans to commemorate the visit of Mr. Karol Wojtyla

(a.k.a., Pope John Paul II — the potentate of the Roman Cath-

olic Church) by issuing nine separate one-day pictorial cancel-

lations. The pope’s visit took place between the 11th of Septem-

ber and the 19th of September, 1987 and the one-day cancel-

lations by the Postal Service followed the pope in his travels to

various cities throughout the United States. The action was

brought pursuant to the rights and privileges accorded petition-

ers by the First Amendment to the United States Constitution

and jurisdiction was conferred on the above mentioned District

Court by 28 U.S.C. §1331 and §§2201 and 2202. The Postal

Service has specially cancelled certain mail with a commemo-

rative stamp in honor of past visits of Pope John Paul II in 1979

and 1981 and twice in 1984 (Respondents’ District Court Plead-

ings in the instant case entitled “Defendants’ Opposition to

Plaintiffs’ Application for Preliminary Injunction,” Exhibit 1,

page 9, filed Sept. 10, 1987, see Appendix H herein).

Petitioners’ motion for Preliminary Injunction was denied

upon the recommendation of the United States Magistrate on

September 11, 1988 (see Appendix C and D). The District

Court subsequently granted Respondents’ motion to dismiss on

the basis of mootness on January 14, 1988 (see Appendix E).

The rationale of the District Court was that since the nine sep-

arate one-day philatelic offerings that the Petitioners sought to

enjoin ended with the pope’s departure from the United States

there was no controversy between the parties and the Court

could only offer an advisory opinion on the First Amendment

Establishment Clause issues (Id.). The Court concluded that

there was no demonstrable probability that this pope or his suc-

cessor would make another trip to the United States and thus

the action was moot (Id.)

The U.S. Court of Appeals, Fifth Circuit, affirmed the District

Court’s dismissal in a judgment filed on July 8, 1988 (see

Appendix G).

Summary of Argument

1. The Fifth Circuit failed to decide on of the important ques-

tions presented in the case and which that court stated was a

question to be decided. The question was whether it was a prob-

ability that the Postal Service would be afforded an opportun-

ity to commemorate some other sectarian leader or leaders

similar to the pope.

2. Petitioners’ requests for injunctive and declaratory relief in

their complaint is not made moot by the passing of the partic-

ular short-term event that is the gravamen of this action. Due

to the demonstrable probability that the same controversy will

recur involving the same complaining parties, the controversy

is live and the-parties are sufficiently adverse. The very same ac-

tivity complained of concerning the same pope occurred once

in 1979, once in 1981, and twice in 1984. Pope John Paul Il is a

notoriously peripatetic pope and will most certainly return to

the United States several more times if he remains alive and

physically able to do so. Because of the short notice given to the

general public concerning the government’s intention to engage

in the activity complained of, as demonstrated by the notice

given in the past, any action brought by Petitioners will again

quickly be “mooted,” as the lower courts held herein, and again

evade review. This is a sly trick of the Postal Service to attempt

to block review of its unlawful acts by this court. There is a “rea-

sonable expectation” or a “demonstrated probability” and more

than a speculative possibility that the United States Postal Ser-

vice will again commemorate the pope (whoever that person

may be) in the future whether the pope visits the United States

or not. The probability of the Postal Service commemorating

the visit of a religious figure in the future is not solely contingent

upon a particular visit of a pope or other religious figure. The

past actions are indicative of the Postal Service’s inclination to

commemorate any type of religious event. The Postal Service

has the notoriety of a “biting dog.” It has advertised religion

many times in the past in various ways and will undoubtedly

“bite” many more times in the future unless it is prevented from

doing so. Until the issues of the First Amendment establishment

clause and free exercise clause are decided the Postal Service

will be free to promote religion with public funds and resources

in viclation of the United States Constitution.

The case is ripe for adjudication and thus, there is no reason

to delay a determination of the merits.

Reasons for Granting the Writ

The Fifth Circuit should be required to decide the questions

presented on appeal. The court did not decide if there was a

probability that similar sectarian leaders, other than the pope,

will be commemorated by the Postal Service

The Fifth Circuit’s affirmance of the dismissal of this action

by the Western District of Texas conflicts with the various

opinions regarding mootness issued by this Court. This action

has not been mooted.

As to the Findings of Fact by the District Court, San Antonio

Division, on page 17, appendix A: In paragraph two, on page 19

of this Petition, the Magistrate states that 1,500 other cancella-

tions have been offered, “like the one in question.” A cancella-

tion has never been offered for any religious figure other than

a Roman Catholic pope, according to all the evidence pre-

sented.

The statements in paragraphs 4 through 7 of the Findings of

Fact on page 19 of this Petition do not improve the Defendants’

position. The fact that a law violator is able to break the law with-

out inconvenience or expense to himself or even with profit to

himself would certainly be a bizarre defense unheard of in the

law.

Litigation may become meaningless or merely an academic

exercise and thus subject to dismissal on the basis of mootness

if the matters in controversy are no longer definite and concrete

or no longer touch the legal relations of the parties. The con-

troversy must be, and continue to be, real and substantial ad-

mitting of specific relief through a decree of a conclusive char-

acter as distinguished from an opinion advising what the law

should be upon a hypothetical state of facts. Aetna Life Ins. Co.

v. Haworth, 300 U.S. 227, 240-42 (1937). Cases dismissed as

moot usually involve fact situations that have truly become dor-

mant or involve interim events that have completely and irrev-

ocably eradicated the effects of the alleged violation. See

DeFunis v. Odegaard, 416 U.S. 312 (1974), (graduation from law

school mooted litigation over plaintiffs admission to the school

— admission would not be cancelled and diploma would not be

revoked even if defendants were successful on the merits).

Another classically mootable situation involves legislative action

that retroactively and conclusively validates an action that was

subject to litigation.

An exception to the above stated rule involves controversies

that are capable of repetition yet evading review. This exception

a

to the rule applies to cases in which there is a demonstrable

probability that the same controversy will recur involving the

same complaining party. See Murphy v. Hunt, 455 U.S. 478, 482

(1982) and Hall v. Board of School Commissioners of Conecuh

County, 656 F.2d 999 (5th Cir. 1981). Cases within this excep-

tion include those in which the challenged action is so short in

duration that it will normally cease before review may be had.

Mootness dismissal is also inappropriate in cases which involve

actions that are not necessarily short term but the factual cir-

cumstances appear to make the controversy moot by the time

required for appeal. Examples of the exception to the rule

Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979), (court or-

dered exclusion of reporters from pretrial hearing), SEC v.

Sloan, 436 U.S. 103 (1978), (10 day orders prohibiting stock

trading) and Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260 (5th

Cir. 1978), (short term performance contracts). Similarly, elec-

tion contests cases such as Ely v. Klahr, 403 U.S. 108 (1971),

and other fixed-date event cases such as Roe v. Wade, 410 U.S.

113 (1973), (pregnancy term), fit the exception.

The facts of the case sub judice fit rather snugly within the

capable of repetition yet evading review exception. As to the

probability that Respondents will repeat the action herein com-

plained of, it is quite likely that the Postal Service will do so.

Appellees will certainly again be afforded an opportunity to com-

memorate Pope John Paul II, his successor or some other sim-

ilar sectarian religious leader or leaders. As stated in the Dec-

laration of W. L. Davidson, Jr., paragraph 23 (initially submitted

as “Exhibit 1” to Defendants’ Opposition To Plaintiffs’ Applica-

tion For Preliminary Injunction, see Appendix H herein), the

Postal Service has specially cancelled certain mail with a

commemorative stamp in honor of past visits of Pope John Paul

Il in 1979, 1981, twice in 1984 and recently in September of 1987.

The purpose of the Postal Service, in commemorating the

visit of the pope is clearly religious. The pope’s visit is in no way

a secular event. The last papal visit was “first and foremost a

pastoral visit to Catholics,” and the stated purpose of the visit

is to “help Catholics to reaffirm their religious identity. ... Arch-

bishop John May of Saint Louis, designated speaker for the

pope in the United States for the pope’s visit, in Catholic

Trends, a trade publication of the National Catholic News

Service, Vol. 18: No. 2, August 22, 1987 (a copy of the pertinent

parts of Vol. 18: No. 2 is included herewith as Exhibit I). The

glorification of this ecclesiastical purpose by the Postal Service

does not amount to a secular legislative purpose.

It will be noted that no mention of the Vatican, or that the

pope is the potentate of the Vatican, will be found on the pope’s

cancellation stamp. This indicates that the cancellation stamp

is made for religious purposes and not for state or diplomatic

reasons.

The stamp also mentions “papal visit.” The defintion of

“papal” in all dictionaries is: of or relating to a pope or to the

Roman Catholic Church. An additional proof that the stamp

and the visits are solely for religious purposes.

If the purpose of the cancellation stamp to make money for

the Postal Service, greed does not make an unlawful act more

worthy or less unlawful.

Considering the great pastoral and financial success of the

pope’s most recent visit by the Roman Catholic Church, as

evidenced by the hugh throngs of fanatical devotees and the

tremendous amount of media coverage, among other things,

and considering the history of the pope’s prior visits in October

1979, February 1981, and May and October 1984, as well as the

October 1987 visit, there is a “reasonable expectation” or a

“demonstrated probability” and more than a “speculative pos-

sibility” the pope will be returning. Considering the fact that the

postal service stands to gain economically from commemoration

of the pope and considering the history of the Postal Service’s

commemoration of the pope’s prior visits in 1979, 1981, and

twice in 1984, as well as 1987, there is a “reasonable expecta-

tion” or “demonstrated probability” and more than a “specula-

tive possibility” that the Postal Service will again contend it as

a religious event, and another lawsuit will need to be filed.

In Valley Construction Co. v. Marsh, 714 F. 2d 26 (5th Cir.

1983), the Fifth Circuit held that a dispute between the Army

and non-minority contractors in determining to set aside con-

tracts for minority firms, continued to be a live case after the

eleven contracts initially involved had all been let. The Court

stated that the “capability [of repetition] is obvious, and past

actions by the government raise a reasonable likelihood of

repetition.” Additionally, the Court stressed that an appellate

court could not be expected to review the case during the short

span of the underlying bidding procedures. Also in Barrett v.

Roberts, 551 F.2d 662 (5th Cir 1977), the Court held that litiga-

tion regarding Aid to Families with Dependent Children proce-

dures that allowed, under certain circumstances, tardy pay-

ment of aid funds was not mooted because of the probability

that the procedures would again be used.

It should be noted that the probability or contingency of a

future visit of the current pope or any successor is not deter-

minative on the issue of whether it is probable that-the Postal

Service will again commemorate the pope. It does establish a

pattern of conduct on the part of the Postal Service, however.

The Postal Service is free to so commemorate at any time sub-

ject only to legal challenges such as the action herein. Also, it

should be emphasized that there is an established pattern of the

Postal Service commemorating the pope’s visits.

There is a demonstrated probability or reasonable expecta-

tion that the pope will return to the United States and also that

the Postal Service will authorize fancy cancellation to commem-

orate the event since each visit of the current pope has been

commemorated by the Postal Service.

The Postal Service commemorated the pope’s visit to cities

in northeastern and central United States the October 1979.

The Postal Service again commemorated the pope’s visit to

Agana, Guam and Anchorage, Alaska, in February 1981.

The Postal Service again commemorated the pope’s visit to

Fairbanks, Alaska, in May 1984.

The Postal Service again commemorated the pope’s visit to

San Juan, Puerto Rico in October 1984.

The Postal Service again commemorated the pope’s visit to

cities in the southern and western parts of the United States in

October, 1987.

These facts distingulish this case from mootness cases that

have no established pattern of activity prior to the activity com-

plained of. See City of Los Angeles v. Lyons, 461 U.S. 95 (1982);

Murphy v. Hunt, supra, and Weinstein v. Bradford, 423 U.S. 147

(1975).

Is there no limit to the number of times an event can occur

and the lower courts will continue to claim there is no proba-

bility that it will occur again?

To say that there is no probability that this will recur is absurd.

To make it even more likely that the Posdtal Service will again

violate the U.S. Constitution it can commemorate any succes-

sor of the pope or any other religious leader or leaders.

As to evading review portion of the exception to the moot-

ness rule: Respondents have argued that court-ordered relief is

mooted merely by the fact that the particular occurrence com-

plained of in this action has fully run its course and thus the con-

troversy regarding such is no longer live. It is true that the 1987

visit of Pope John Paul II has ended and there is no possibility

that this Court could grant Petitioners the specific injunctive

relief requested by the Petitioners in this action pertaining to

that visit of that pope (i.e., the preliminary injunction issue re-

garding the September, 1987 papal visit is moot). There is how-

ever a continuing controversy between the parties concerning

future visits of Pope John Paul II, or any pope or other religious

figure, which the U.S. Postal Service would desire to commem-

orate by specially fancy-cancelling certain first class: mail.

Further, as noted above, the Postal Service is not constrained

to commemorate particular religious leaders only upon visits to

the United States. Thus, the additional relief requested in Plain-

tiffs’ Complaint based on the merits of the action (e.g., declar-

atory relief), has not been mooted. There is nothing less than

or something greater than a demonstrated probability that the

issues will arise again.

In the past, the pope has announced his anticipated visits to

the United States only several months before the actual visit.

The Postal Service then advertises the special cancellation of

certain mail, primarily to philatelists, several weeks after the

pope’s announcement. This allows concerned citizens only a

matter of weeks to seek relief in federal court to contest the can-

cellations. What is very improbable is that a lower court would

grant an injuinction against the Postal Service. To be fully liti-

gated the case must go to the Supreme Court of the United

States. This is a classic example of a dispute that is capable of

repetition yet evading review.

Moreover, construing the totality of Appellees documents on

file herein, the Postal Service will commemorate future papal

visits in the same manner as here in dispute. The underlying

issues in this action are thus certainly far from dead.

ee

In County of Los Angeles v. Davis, 440 U.S. 625 (1979), the

Supreme Court stated the general rule that a case is not mooted

by the mere voluntary cessation of allegedly illegal conduct sub-

ject to litigation, as Appellees seem to be claiming. Appellees

only ceased using the special first class cancellations complained

of herein because the particular event commemorated has

come and gone. Appellees have in no way suggested their ac-

tions will not recur upon the next visit of Pope John Paul Il, any

other pope or any other similar religious event. Petitioners con- y

tinue to maintain that such past and ongoing activity is abhor-

rent to the United States Constitution (the First Amendment's

Establishment and Free Exercise clauses), thus demonstrating

that the controversy is still quite alive. The action sub judice is

more like Hall v. Board of School Commrs., supra, where the

defendants vigorously asserted the validity of a religion/

theology course in a primary school and had not intimated any

intention to cease offering it in the future. The Court held that

the course was likely to be repeated and thus judicial economy

compelled that the merits be reached. See also U.S. v. New

York Tel. Co., 434 U.S. 159 (1977), (orders authorizing short-

term surveillance held likely to recur without judicial determina-

tion of constitutionality).

It is also to be noted that Respondents have the burden of

demonstrating mootness in this action, and that burden is a

heavy one. See U.S. v. W. T. Grant, Co., 345 U.S. 629, 632-33

(1953). Also, as noted in Hall V. Board, supra at 1001, Respon-

dents must offer more than their mere declaration that the con-

duct has ceased and will not be revived: there must be no rea-

sonable likelihood that the activity will recur. Again, the Defen-

dants herein have maintained that their actions are constitutional

and they could thus be expected to continue the activity in the

future. It could hardly be said that Respondents have proved

that the commemoration complained of will not again occur in

the future.

If the pope had never visited cities in the United States there

would be a physical or theoretical possibility that he could do

so, and the Respondents’ argument might have some logic to

it, but since he has done so many times and the Postal Service

has authorizaed fancy cancelling every tiem, there is a demon-

strated probability and reasonable expectation that both the

10

a

visits and the postal cancellations will be repeated as usual.

It is also to be noted that when important and fundamental

constitutional rights are involved, the public interest in deciding

those issues also helps to prevent the case from being moot.

Roe v. Wade, supra, and Wirtz v. Glass Blowers Local 153, 389

U.S. 463, 474 (1968). In Roe v. Wade, supra at 125, the Supreme

Court stated that if child-birth makes a case regarding preg-

nancy moot then such litigation “would seldom survive much

beyond the trial stage, and appellate review will be effectively

denied.” The Court held that even though it was not certain that

any one of the plaintiffs therein would become pregnant again,

the law of mootness “should not be so rigid.”

This court has remanded cases to Federal Courts of Appeal

where one question presented was not decided by the Appeals

Court. Barr v. Matteo, 355 U.S. 171, Alaska v. American Can

Co., 358 U.S. 224, (1959), and Papasan v. Allain, 106 S.Ct. 2932

(1987).

Important and fundamental constitutional rights are involved

in this action. Furthermore, judicial economy seems to dictate

that this action not be dismissed.

CONCLUSION

This action is not an appropriate one for the application of the

mootness doctrine. The Postal Service will commemorate the

pope, either the present pope or another elected pontiff or other

notable religious figure, by specially fancy-cancelling certain first

class mail as it did in 1979, 1981, twice in 1984 and recently in

September of 1987. As shown from the evidence herein, this is

the type of case that is capable, and almost certain, of repeti-

tion and, unless this Court hears the action, the issues could for-

ever evade review. Also the Postal Service could inappropriate-

ly commemorate the religious figure whether or not there is any

actual visit to the United States: the complained of action could

occur at any time. This challenged action is always too short in

duration to be fully litigated prior to its termination. Petitioners

are ready and eager to proceed with this action and will vigor-

ously do so as the controversy is substantive and persistent.

For the foregoing reasons a Writ of Certiorari should issue to

review the judgment of the District Court for the Western

ll

District of Texas and the judgment of affirmance of the Court

of Appeal for the Fifth Circuit.

Respectfully Submitted,

y/ bee P, ( bbiler

RALPH B. SHIRLEY, pro se

Member, District of Columbia Bar

7215 Cameron Road

Austin, Texas 78752

(512) 458-3342

12

Certificate of Service

I, Ralph B. Shirley, hereby certify that I have mailed three

copies of the foregoing Petition for Writ Of Certiorari to (1)

Solicitor General, Department of Justice, Washington, D.C.

20530; (2) Mr. Robert S. Greenspan, Assistant United States

Attorney, Appellate Staff, Civil Division, Room 3617, Department

of Justice, Washington, D.C. 20530; (3) Mr. Joseph G. Schraer,

Postmaster, San Antonio Division, U.S. Postal Service, 655 E.

Durango, Suite 613, San Antonio, Texas 78206; (4) Mr. Anthony

M. Frank, Postmaster General of the United States, 475

L’Enfant Plaza, S.W., Washington, D.C. 20260, in duly

addressed envelopes, with postage prepaid, on or before

October 5, 1988.

4 (j Vf ‘4 ( J fe //

/ Lo Lat

: 3

// hha ha eg

Ps | aye ae

‘-

RALPH B. SHIRLEY, pro se

Member, District of Columbia Bar

7215 Cameron Road

Austin, Texas 78752

(512) 458-3342

October 5, 1988

13

|

>

eh a ee

ia |

Appendices

A) Memorandum and Recommendation of Magis-

trate, U.S. District Court, Western District of

Texas, San Antonio Division, 10 September

Bich once as einen kee Ted eka co ediveasccus

B) Order Concerning Service and Notice of Right to

Object/Appeal, U.S. District Court, Western Dis-

trict of Texas, San Antonio Division, 10 Septem-

eae Rn altar ent pyre Meer Pipa go een

C) Order Adopting Memorandum and Recommenda-

tion of Magistrate, U.S. District Court, Western

District of Texas, San Antonio Division, 11 Sep-

a a ka kieesee

D) Order Denying Preliminary Injunction, U.S. Dis-

trict Court, Western District of Texas, San An-

tonio Division, 11 September 1987 ......................

E) Order of Dismissal based on mootness, U.S. Dis-

trict Court, Western District of Texas, San An-

tonio Division, 14 January 1988 .....................005.

F) Judgment Dismissing, without prejudice, U.S. Dis-

trict Court, Western District of Texas, San An-

tonio Division, 14 January 1988 ..................000+ eee

G) Summary Calendar Order Affirming District

Court, U.S. Court of Appeals, Fifth Circuit, 8 July

SE kes babacds ARE kceuAseraaoetesananecencans

H) Defendant’s Opposition to Plaintiffs’ Application

for Preliminary Injunction, Exhibit 1, page 9, filed

ce a vnabbaansdacseenensey

1) Excerpt from Catholic Trends journal, Vol. 18, No.

co anak eenwaewenucn’

15

6

Appendix A

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RALPH B. SHIRLEY, and SA-87-CA-1080

SOCIETY OF SEPARATIONISTS, INC.,

Vv.

JOSEPH G. SCHRAER, ET AL

MEMORANDUM AND RECOMMENDATION

10 September 1987

TO: Honorable H. F. Garcia

United States District Judge

The following findings and recommendations are submitted

to the Court pursuant to Title 28 U.S.C. §636(b)(1)(B) and Local

Court Rules 1(d)(1)(A) and 4{b). The matter before the Court

is Plaintiffs motion for preliminary and permanent injunctive

relief, filed August 25, 1987 (Plaintiffs’ Original Complaint at

page 4).

STATEMENT OF THE CASE

On August 25, 1987, Plaintiffs filed their Original Complaint

against Joseph Schraer, Postmaster, United States Postal Ser-

vice, San Antonio Division, and Preston Tisch, Postmaster

General of the United States. By their Complaint Plaintiffs allege

that Defendants’ intended implementation of a program of

“fancy cancelling”, whereby first class letters and postcards

would be stamped with the Vatican City “crest” in commemo-

ration of Pope John Paul’s visit to San Antonio, promotes reli-

gion with public funds in violation of the Establishment Clause

of the lst Amendment to the U.S. Constitution. Additionally,

Plaintiffs claim that Defendants’ acts will adversely effect the dis-

17

patch and receipt of mail by Plaintiffs at the San Antonio Post

Office during the day in question.

On September 2, 1987, the District Court referred this cause

to the undersigned Magistrate for the purpose of conducting a

hearing and making recommendations regarding Plaintiffs’ re-

quest for preliminary injunctive relief. Pursuant to the District

Court’s Order of Referral, the matter was scheduled to be heard

on September 9, 1987 at 2:00 P.M. (Court Order filed Septem-

ber 4, 1987). Due to attorney scheduling conflicts, however, said

hearing was rescheduled by agreement of the parties for Sep-

tember 11, 1987 at 11:00 A.M. (Court Order filed September 8,

1987). Ultimately, no hearing was covened inasmuch as both

parties waived oral arguments and instead, chose to rely upon

their written pleadings and affidavits. On September 10, 1987,

Plaintiffs filed their Brief In Support of Preliminary Injunction

and Defendants filed their Opposition to Plaintiffs’ Application

for Preliminary Injunction.'

FINDINGS OF FACT

1. The Postal Service announced plans to offer one-day pic-

torial philatelic cancellations in 9 cities (including San Antonio,

Texas) in connection with the U.S. visit of Pope John Paul Il in

philatelic Release No. 46, issued on July 29, 1987. Upon request,

an individual may have postcards and first class letters hand

cancelled with a special rubber stamp bearing the Vatican City

state emblem, at specific postal facilities on the day of the Pope’s

visit to that city. In San Antonio, the commemorative cancella-

tion will be offered on Sunday, September 13, 1987.

2. Such philatelic cancellations are a routine part of postal ser-

vice operations. During 1986, approximately 1,500 pictorial can-

cellations, like the one in question, were offered by the postal

service. Forty-five of these were offered within the Postal Field

Division that includes San Antonio, with 16 such offerings in San

Antonio alone.

INo answer or other responsive pleadings or papers have been filed by

Defendants to date and in fact, none are due insofar as Defendants’ 60-day

Answer date does not run until 10/28/87.

18

3. In San Antonio, the main post office on Perrin-Beitel will be

the only postal facility handling the Pope John Paul II can-

cellation.

4. On September 13, 1987, the main postal facility’s regular

work force of approximately 400 employees will be processing

mail during regular work hours. On an average Sunday, the

main post office processes approximately 2.4 million pieces of

mail.

5. Defendant Joseph Schraer, Postmaster, San Antonio,

Texas, estimates that only 10,000 Pope John Paul II pictorial

cancellations will be processsed on the day in question, or only

1/10 of 1% of the day’s usual total postal business.

6. No additional net costs are incurred by the Postal Service

in offering such philatelic cancellation; in fact, the Postal Service

usually derives a net economic benefit from such offerings.

According to W. L. Davidson, Jr. Director of Office of Stamp

and Philatelic Marketing, Philatelic Affair’s Dept., the Postal

Service realized a net profit of approximately $136 million from

the sale of philatelic products including philatelic postmarking.

Before a philatelic cancellation is issued a determination is made

as to its economic viability. While the Postal Service makes a

profit on its pictorial philatelic cancellations as a whole, some

philatelic postmarks are determined to be economically viable

even though the costs of offering them somewhat exceeds

revenues, due to the goodwill and good public relations the

Postal Service stand to gain.”

7. All philatelic cancellations are handled separately from and

without disturbing ordinary mail processing. DMM §164.21. For

the same reason, such cancellation offering is limited to re-

quests of fewer than 50 envelopes unless advance approval is

obtained for larger requests. Id. This is especially the case in San

Antonio, since no hand back cancellations will be offered due

to the fact that window service is normally and will be unavail-

able inasmuch as the Pope’s visit to San Antonio (the only day

such cancellation is available) falls on a Sunday. See DMM

§164.23a.

*There is no evidence that the instant cancellation will not financially benefit

the Postal Service.

19

CONCLUSIONS OF LAW

1. Preliminary injunctive relief is inappropriate unless Plaintiff

can establish: (1) a substantial likelihood that Plaintiff will ulti-

mately succeed on the merits; (2) irreparable harm if the injunc-

tion is not issued; (3) the threatened harm to Plaintiff outweighs

any potential injury the injunction may cause Defendants; and

(4) the injunction will not disserve the public interest. See

Lindsay v. City of San Antonio, 821 F.2d 1103, 1105-7 (5th Cir.

1987).

2. To determine whether Defendants’ acts (i.e., causing and

allowing the “Visit of Pope John Paul II” pictorial cancellations)

violate the Establishment and Free Exercise Clauses of the First

Amendment, this Court must inquire: (1) whether the challenged

conduct has a secular purpose, (2) whether the primary effect

of the challenged conduct serves to advance or inhibit religion,

and (3) whether the challenged conduct creates an excessive

entanglement of government with religion. See Lynch v.

Donnelly, 465 U.S. 668, 679 (1983) (creche as part of city’s

annual Christmas display in downtown park held not to endorse

Or promulgate Christian beliefs in violation of First Amend-

ment). Accord, Protestants and Other Americans United for

Separation of Church & State v. O’Brien, 272 F.Supp. 712, 718-

21 (D.D.C. 1967) (issuance of postage stamp bearing Hans

Memlings painting of “Madonna and Child with Angels” held not

violative of First Amendment).

3. The purpose of the “Visit of Pope John Paul II” commem-

orative cancellation is clearly secular; i.e., the promotion of

philately.

4. The Congress of the U.S.., in establishing the for-profit, in-

dependent entity of the Postal Service, specifically empowered

the Service “to provide philatelic services.” See 39 U.S.C.

§404(a)(5).

5. Further, regulations dictate the subject matter of pictorial

cancellations such as the one at issue. Domestic Mail Manual

(DMM) §164.9 et seq. Pursuant to such regulation, a cancella-

tion must be issued in connection with a particular “exhibition

or event” and the cancellation must bear the name of the

exhibition or event. DMM §164.92. Additionally, “cancellations

that endorse the ideals, policies, [etc.] of religious, anti-religious,

... Or special interest organizations will not be approved. How-

ever, cancellations . . . that recognize events . . . sponsored by

or involving such organizations, providing their designs do not

include works, symbols, or illustrations referring to [such]

ideals, policies, [etc. may be approved].” Id.

6. The principle or primary effect of the offering of the “Visit

of Pope John Paul II” commemorative cancellation is not the

“advancement” or “inhibition” of Roman Catholicism or Chris-

tianity; it is the recognition and commemoration of the visit by

a world leader and head of state, an event of widespread

national interest.

7. Finally, there is no “excessive entanglement” of govern-

ment and religion created by the issuance of the “Visit of Pope

John Paul II” commemorative cancellation inasmuch as the rou-

tine handling of mail will not be impeded nor will said cancella-

tion cause any net increased cost.

8. Inasmuch as the “Visit of Pope John Paul II” commemora-

tive cancellation offering by the postal service cannot be said to

“establish a religious faith or tend to do so,” when considered

in light of the foregoing factors, Plaintiff cannot establish a sub-

stantial likelihood of success on the merits and must therefore

be denied injunctive relief. See Lindsay, supra, 821 F.2d at 1111

(denying injunctive relief on singular ground that Plaintiffs failed

to demonstrate substantial likelihood of success on merits).

RECOMMENDATION

Based upon the preceding findings of fact and conclusions of

law the undersigned respectfully recommends that Plaintiffs’

motion for preliminary injunctive relief be in all things DENIED.

SIGNED and ENTERED this 10th day of SEPTEMBER, 1987.

JAMIE C. BOYD

United States Magistrate

21

Appendix B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RALPH B. SHIRLEY, and SA-87-CA-1080

SOCIETY OF SEPARATIONISTS, INC.,

v.

JOSEPH G. SCHRAER, ET AL

ORDER CONCERNING SERVICE AND NOTICE

OF RIGHT TO OBJECT/APPEAL

September 10, 1987

The United States District Clerk shall serve a copy of this

United States Magistrate’s Memorandum and Recommendation

on all parties by mailing a copy to each of them by Certified Mail,

Return Receipt Requested. Pursuant to 28 U.S.C. +636(b)(1)

(Supp.1982), and Rule 4(b) of the Local Rules for the Assignment

of Duties to United States Magistrates, any party who desires

to object to this report must file written objections to the Mem-

orandum and Recommendation within ten (10) days after being

served with a copy. A party filing objections must specifically

identify those findings or recommendations to which objections

are being made. The District Court need not consider frivolous,

conclusive or general objections. A party’s failure to file such

written objections to proposed findings and recommendations

contained in this report shall bar the party from a de novo de-

termination by the District Court of those proposed findings

and recommendations. See generally United States v. Raddatz,

477 U.S. 667, 673-676, 683 (1980); 28 U.S.C. +636(b)(1)

(Supp.1982). Additionally, any failure to file written objections

to the proposed findings and recommendations contained in

this Memorandum and Recommendation, within ten (10) days

after being served with a copy, shall bar the aggrieved party

from appealing the factual findings of the Magistrate that are

23

a

accepted of adopted by the District Court, unless the party

validly alleges grounds of plaint error or manifest injustice. See

Deloney v. Estelle, 679 F.2d 372, 373 (5th Cir. 1982); Nettles v.

Wainwright, 677 F.2d 404, 408-410 (5th Cir. 1982) (Unit B en

banc.).

SIGNED and ENTERED this 10th day of September 1987.

JAMIE C. BOYD

United States Magistrate

24

Appendix C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

FOR THE SAN ANTONIO DIVISION

RALPH B. SHIRLEY, and SA-87-CA- 1080

SOCIETY OF SEPARATIONISTS, INC.,

Plaintiffs

Vv.

JOSEPH G. SCHRAER, ET AL

Defendants

ORDER

11 September 1987

On this day came on to be considered the Memorandum and

Recommendation of United States Magistrate Jamie C. Boyd,

recommending that plaintiffs’ motion for preliminary injunctive

relief be DENIED. Plaintiffs’, though advised of the necessity of

objecting to the recommendation by today, have not filed any

objections. Having reviewed the pleadings, the affidavits, and

the recommendation, the Court is of the opinion the recommen-

dation should be adopted.

It is, therefore, ORDERED that plaintiffs’ request for pre-

liminary injunctive relief be, and it hereby is, DENIED.

SIGNED this 11th day of September, 1987.

H. F. GARCIA

UNITED STATES DISTRICT JUDGE

Appendix D

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RALPH B. SHIRLEY, and SA-87-CA-1080

SOCIETY OF SEPARATIONISTS, INC.,

Plaintiffs,

V.

JOSEPH G. SCHRAER, et al.

Defendants,

ORDER

11 September 1987

This matter came on to be heard on September 11, 1987 on

the application of Plaintiffs Ralph B. Shirley and Society of Sep-

arationists, Inc. for preliminary injunctive relief, and having

heard the evidence presented and the arguments of counsel,

and having read the submissions of the parties, this Court is of

the opinion that Plaintiffs have failed to satisfy the prerequisites

for entry of preliminary injunctive relief. See Lindsay v. City of

San Antonio, 821 F.2d 1103 (5th Cir. 1987); see also Lynch v.

Donnelly, 465 U.S. 668 (1983). Accordingly, it is this day

ORDERED that Plaintiffs’ application for preliminary injunctive

relief be, and hereby is, DENIED.

This the ___ day of September, 1987, in San Antonio, Texas.

H. F. GARCIA

United States District Judge

27

——————————

28

Appendix E

UNITED STATES DISTRICT COURT

IN THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RALPH B. SHIRLEY, et al SA-87-CA- 1080

Plaintiffs,

V.

JOSEPH G. SCHRAER, Postmaster,

United States Postal Service,

San Antonio Division, et al

Defendants.

ORDER OF DISMISSAL

14 January 1988

On this day came on to be considered the motion of

defendants to dismiss based upon mootness. Plaintiffs instituted

this lawsuit for a declaratory judgment that the use by defen-

dants of a cancellation stamp commemorating the visit of Pope

John Paul II to the United States in September, 1987 violated

the Establishment Clause and Free Exercise Clause of the First

Amendment. Plaintiffs also sought an injunction to restrain the

use of the cancellation stamp. Their request for a preliminary

injunction was denied. Plaintiffs claim the issue is not moot

because defendants have used a cancellation stamp on occa-

sions in the past to commemorate the Pope’s visits to the United

States and is likely to do so again in the future.

In general a case becomes moot when the issues presented

are no longer live or the parties lack a legally cognizable interest

in the outcome. Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct.

1181, 1183, 71 L.Ed. 2d 353 (1982). An exception has been rec-

ognized in cases that are capable of repetition, yet evading

review. Id. at 482, 102 S.Ct. at 1183. This exception applies if

(1) the challenged action is in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there is a rea-

sonable expectation that the same complaining party will be

subjected to the same action again. [bid. Mere physical or

theoretical possibility is not sufficient. Ibid. Rather, there must

29

Iie

be a reasonable expectation or a demonstrated probability that

the same controversy will recur involving the same complaining

party. Id. at 482, 102 S.Ct. at 1184.

Utilizing these standards the Court believes this case is moot.

The cancellation stamp commemorated the visit of Pope John

Paul II in September, 1987. It was developed for that one event

and is no longer in use. The Court does not believe this case fits

within the exception to the general rule. At this point, another

visit by Pope John Paul II is only a possibility. There are no plans

for another visit here by this Pope, thus certainly no demonstrated

probability of another trip. Expectation of another visit by this

Pope is not reasonable. Numerous events could transpire here-

after which could affect such a possibility. It is purely conjecture

to expect a future visit based upon past action. A ruling on the

constitutionality of the cancellation stamp would be a mere ad-

visory opinion which may never have legal consequences. No

actual case or controversy exists.

It is therefore, ORDERED that defendant’s motion to dismiss

is GRANTED.

Signed this 14th day of January, 1988.

H. F. GARCIA

UNITED STATES DISTRICT JUDGE

30

2 DOP Oe 2D le Mi

ete el LP EE 0 7 RL PTR GIRS sh Ve oe 6 OR es i a

ites sss cad sek esr vs

Appendix F

UNITED STATES DISTRICT COURT

IN THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RALPH B. SHIRLEY, et al SA-87-CA-1080

SOCIETY OF SEPARATIONISTS, INC..,

Plaintiffs,

V.

JOSEPH G. SCHRAER, Postmaster, 7

United States Postal Service,

San Antonio Division, et al

Defendants.

JUDGMENT

14 January 1988

In accordance with the Order of Dismissal being entered

contemporaneously herewith;

It is ORDERED that the above-entitled and numbered cause

be, and it hereby is, DISMISSED without prejudice.

SIGNED this 14th day of January, 1988.

H. F. GARCIA

UNITED STATES DISTRICT JUDGE

31

Appendix G

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-5525

Summary Calendar

RALPH B. SHIRLEY, and

SOCIETY OF SEPARATIONISTS, INC.,

Plaintiffs-Appellants,

versus

JOSEPH G. SCHRAER, Postmaster,

United States Postal Service,

San Antonio Division, ET AL.

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

8 July 1988

Before GEE, REAVLEY, and KING, Circuit Judges.

BY THE COURT:

Pope John Paul Il visited nine cities in the United States dur-

ing the period September 10-19, 1987. The U.S. Postal Service

offered a pictorial hand cancellation to commemorate the

Pope’s visit. The special cancellations were to be done at des-

ignated postal stations in each of the nine cities on the date of

the papal visit to each city. The plan to offer this special service

was announced in the Postal Service’s “Stamp News USA,”

philatelic release no. 46, July 29, 1987. San Antonio is one of the

nine cities. -

33

Ralph Shirley and the Society of Separationists, Inc., filed suit

on August 25, 1987, against the Postmaster of San Antonio and

the U.S. Postmaster General for declaratory and injunctive re-

lief. Quoting Thomas Jefferson, the plaintiffs’ complaint alleged

that Postal Service’s plan breaks the “wall of separation

between church and state.” It alleged that the Postal Service is

supporting Roman Catholicism in violation of the First Amend-

ment.

The district court, finding that the Pope’s visit to San Antonio

on September 13, 1987, would generate an estimated 10,000

pictorial cancellations commemorating the event, only one-

tenth of one percent of the mail to be processed that day in San

Antonio, denied a preliminary injunction.

The Vatican visitor came and went, and the Postal Service

moved to dismiss the suit as moot. On January 14, 1988, the dis-

trict court granted the motion to dismiss, determining that the

issue was moot.

Plaintiffs appeal, contending that the issue is not moot be-

cause of the “probability” that the Postal Service “will certain-

ly again be afforded an opportunity to commemorate Pope John

Paul II, his successor or some other similar sectarian leader or

leaders.” The appellants allege that the Postal Service has

honored the Pope with commemorative cancellations in 1979,

1981, twice in 1984, and in September 1987.

Considering the great pastoral and financial success

of the Pope’s most recent visit and the positive media

exposure of the internal operations of the Roman

Catholic Church, the Pope will be returning. The

Postal Service will again commemorate the visit,

which Plaintiffs will again contend is as a religious

event, and another lawsuit will need to be filed.

Appellants’ brief, 4.

Because the Pope’s 1987 visit is history and no other visits are

planned, the appellants can escape mootness only by showing

that the Postal Service’s action is “capable of repetition, yet

evading review.” Southern Pacific Terminal Co. v. ICC, 219

U.S. 498, 515, 31 S. Ct. 279, 55 L.Ed. 310 (1911); DeFunis v.

34

Odegaard, 416 U.S. 312, 318-19, 94S. Ct. 1704, 40 L.ED.2d 164

(1974). “The usual rule in federal cases is that an actual con-

troversy must exist at stages of appellate or certiorari review,

and not simply at the date the action is initiated.” Roe v. Wade,

410 U.S. 113, 125, 93 S.Ct. 705, 35 L.2d 147 (1973).

For a case to fall within the category described by Southern

Pacific, two requirements must be met: (1) the duration of the

challenged action must be too short to allow full litigation; and

(2) a reasonable expectation must exist that the same party will

be subjected to the same action again. Weinstein v. Bradford,

423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). There

must be a “demonstrated probability” that the same controversy

will recur. Id. Mere physical or theoretical possibility is insuf-

ficient to satisfy the Weinstein test. Murphy v. Hunt, 455 U.S.

478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).

Appellants have not established a “demonstrated probability”

or a “reasonable expectation” that the current pope or his suc-

cessor will visit the U.S. and that the Postal Service will com-

memorate the event with special cancellations. Appellants have

shown no more than a speculative possibility of such occur-

rences. The district court was correct in dismissing the case as

moot, and its judgment is AFFIRMED.

Appendix H

Defendant’s Opposition to

Plaintiffs’ Application for Preliminary Injunction

Exhibit 1, page 9, filed September 10, 1987

UNITED STATES DISTRICT COURT RECEIVED —

WESTERN DISTRICT OF TEXAS ; pee

SAN ANTONIO DIVISION Pin

CHARLES V4. VASNER, Cher’ #

RALPH B. SHIRLEY and SOCIETY OF ) By Capaty |

SEPARATIONISTS, INC., )

Plaintiffs,

Vv. } CIVIL NO. SA-87-CaA-1080

JOSEPH G. SCHRAER, et al.,

Defendants.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS‘

APPLICATION FOR PRELIMINARY INJUNCTION

Defendants Joseph G. Schraer, Postmaster, San Antonio, Texas

and Preston R. Tisch, Postmaster General, U.S. Postal Service, by

and through their undersigned counsel, to assist the Court in its -

consideration of Plaintiffs' application for preliminary

injunctive relief, hereby respectfully submit the following brief

“Opposition.*

pnp cncstel Nec OE

EXHIBIT 1.

DECLARATION OF W, L. DAVIDSON, JR.

“I, ‘W. L. DAVIDSON, Jr., under penalty of perjury, declare:

1. I am employed by the United States Postal Service, at

Postal Service Headquarters in Washington, D.C. 20260, as the

Office of Stamps & Philatelic Marketing, Philatelic Affairs

Department. As Director I am responsible for the seléction of

subjects and designs for stanpe and pictorial postage cancella-

tions, for the production and distribution of stamps, for public

relations activities related to stamps and stamp collecting, for

the marketing, advertising, and sale of philatelic products, and

for the development of stamp related products for sale to

collectors. I have been employed in the Office of Stamps &

Philatelic Marketing for the past eight years and have become

thoroughly familiar with all of these functions.

ee Beat si a iy, Vo

37

23. A similar philatelic cancellation was offered in nine

cities visited by Pope John Paul II in 1979 (See Philatelic

Release Ko.63, Exhibit c). Sixty thousand cancellations were

requested by mail order alone and thousands more were requested

through “hand back” service. Another cancellation was offered in

Agana, Guam, and Anchorage, Alaska, in connection with Pope John

Paul II’s visits to those cities in February 1981. One was

offered in connection with Pope John Paul‘s visit to Fairbanks,

Alaska, in May 1964. Another pictorial cancellation was offered

in San Juan, Puerto Rico, in connection with Pope John Paul II's

visit to that city in October 1984.

Ww. L. Davidson, ag.

Appendix |

Excerpt form Catholic Trends journal

Vol. 18, No. 2, 22 August 1987

catholic trends

thwhile when they are motivated by a desire

for some good, enriches all of us,” she said.

“When we are trying to be obedient to God

| | to care about the earth, for example, or to

ey

care for various dimensions of human life

or to care for unity in the human family, then

we have reason to go through the often ar-

duous processes associated with collabora-

tion.” * Leckey said there was a sense among

religious, laity and others is important not

only for all the personal conversion “‘it in-

evitably engenders, but important to carry

on the mission of Christ and Christ's

church.”

[DCO Oe

eet ee ae ee eae

The pasts eip to Gathtus an “te antiommetaaanien |

visit to Catholics,”” said Archbishop John May of St. Louis, president of the

National Conference of Catholic Bishops, at an August media briefing. The

papal visit will help Catholics to “‘reaffirm their * at a time

when “‘there is a certain amount of confusion in the minds of quite a few good,

sincere Catholics over just what it means to be a Catholic — to believe like

a Catholic and to live like a Catholic — in a wealthy, consumerist, nuclear-

Catholic Trends

U.S. CATHOLIC CONFERENCE

1312 Mossocusets Avenue NW

Washington. D.C. 20005

eee.

Second-Closs Postage Poid

At Washington, 0.C

‘ile ogre

= atk. 76768

NEWS—TIME VALUE

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