Opposition Brief — Berger v. Supreme Court

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No. 88-1716 ~all

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Supreme Lourt of the United States

October Term, 1988

SANFORD J. BERGER,

Petitioner,

V.

THE SUPREME COURT OF OHIO, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

ANDREW |. SUTTER

Assistant Attorney General

Counsel of Record

30 East Broad Street, 17th Floor

Columbus, Ohio 43266-0410

(614) 644-5003

Attorneys for Respondents

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QUESTIONS PRESENTED

Does a canon of judicial conduct that permits a

candidate for judicial office to conduct a truthful,

vigorous and upright campaign, provided he makes

no pledges or promises concerning the disposition

of issues he may ultimately be called upon to decide,

violate that candidate's rights under the First

Amendment or the equal protection clause of the

Fourteenth Amendment to the Constitution of the

United States?

Is a plaintiff who has judgment entered against him

entitled to a full evidentiary hearing in order to

determine whether he is a prevailing party pursuant

to 42 U.S.C. § 1988?

Page

QUESTIONS PREGENTED . i... dnt ciccdaosesuea wae

TABLE OF BAST HICITIES 6 noc ves as espa veneueeenes iv

JURISDICTION OF THIS COURT 2... os cvscctvnciedeas 1

STATEMENT OF THE GAGE .. oc sven eng enceeen: 1

PPGAIOREIT no: kant Kad ne ease ea eee 3

1. PETITIONER CANNOT SATISFY THE RE-

QUIREMENTS FOR PLENARY REVIEW ........... 3

A. The Petition For Writ Of Certiorarils Untimely 3

BS. . The Ceee 6 Moet, ...icvcs cen ce eee eee 4

C. The Sixth Circuit’s Decision Is Not In Conflict

With Any Decisions Issued By Other Circuits

Or 146 COUN 6.ig ci tones eee 4

D. Neither Petitioner Nor Any Other Candidate

For Judicial Office Has Been Disciplined By

The Supreme Court of Ohio For Violating

Canon 7(B)(1)(c) Of The Code of Judicial

CONGUGL oan 6s kan dda wkd eee eee -

TABLE OF CONTENTS

THE SIXTH CIRCUIT'S JUDGMENT UPHOLDING

THE LEGALITY OF CANON 7(B)(1)(C) OF THE

OHIO CODE OF JUDICIAL CONDUCT IS

CORRECT 2.0. ee

TABLE OF CONTENTS - Continued

Page

ll. PETITIONER, WHO HAD JUDGMENT ENTERED

AGAINST HIM, IS NOT ENTITLED TO A FULL

EVIDENTIARY HEARING TO DETERMINE

WHETHER HE IS A PREVAILING PARTY FOR

PURPOSES OF AN AWARD OF ATTORNEY'S

FEES PURSUANT TO 42 U.S.C. § 1988 .......... 7

EE ee eee eee 9

ES OES ee ea ae A-1

TABLE OF AUTHORITIES

Cases Page

Berger v. The Supreme Court of Ohio, et al.,

Case No. 87-3935, slip op. at 4

Gere Gale eee as Pik Vk eee eT eKe aes 7

Berger v. The Supreme Court of Ohio, et al.,

Case No. C-2-84-1227, slip op. at 4

ee, Sore NOE kG Dae wk Oda hee ad 6

Califano v. Yamasaki, 442 U.S. 682 (1979)............ 5

Dale Baker Oldsmobile, Inc. v. Fiat Motors of

North America, Inc., 794 F.2d 213

SN San SNE ia eh a ee Ale we ew oe 6

Hensley v. Eckerhart, 461 U.S. 424 (1983) ............ 8

prowit ¥. eine, 462 UG. TSS (IGS)... 6 nn nk cc ews eas 7

In re Inquiry Relating to Baker,

216- Kan. wae, DSS F220 701 FIGS) ons kc eke eww s 6

Matter of Riley, 691 P.2d 695 (Ariz. 1984) ............ 6

McDonald v. Board of Election Commissioners of

FeeCMNO, Dipae 80.co. We LENS bc wc senccevesvciaccs 3

Meyer v. Grant, U.S. , 108 S.Ct.

PO EE GN 6R 4 ee ae WS eee 4

Morial v. Judiciary Commission of the State of

Louisiana, 565 F.2d 295 (5th Cir. 1977),

cert. denied, 435 U.S. 1013 (1978) .............. 6,7

TABLE OF AUTHORITIES - Continued

Page

New York v. Ferber, 457 U.S. 747 (1982) ............. 6

Statutes

Pe Sees. a ce dR a ea ee es a

SPUR E A. S PRS oi ii ask cee sn kendo eee ee eee as 7

ae RESER,. Be 6 eck ha hbase ee eee 7,8

Canon 7(B)(1)(c) of the Ohio Code of Judicial

Ts ee erie er ray are eer ee passim

Rules

Rule 20.2 of the Rules of the Supreme Court

GU UTiae APURIE TMS kk 6k 6 ke heehee es eas 3

Rule 20.3 of the Rules of the Supreme Court

OU Wb ATS TI ou ee occu a Oe ee 4

Rule 20.4 of the Rules of the Supreme Court

OF Te RII US o.oo os ho eR eee 3,4

Rule 24(B) of the Rules of the United States

Court of Appeals for the Sixth Circuit.............. 5

No. 88-1716

In The

Supreme Court of the United States

October Term, 1988

SANFORD J. BERGER,

Petitioner,

V.

THE SUPREME COURT OF OHIO, et al.,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

JURISDICTIONAL STATEMENT

Petitioner attempts to invoke this Court's jurisdiction

pursuant to 28 U.S.C. § 1254(1). The relevant judgment of

the court below was rendered on October 31, 1988.

STATEMENT OF THE CASE

In 1984, Petitioner (“Petitioner’” or “Berger’) was a

candidate for the office of Judge of the Cuyahoga County,

Ohio, Court of Common Pleas, Division of Domestic

Relations. As part of his campaign, Petitioner wished to

publicly criticize the administration of the domestic relations

court. It was Petitioner's perception, however, that sucn

comments were prohibited by Canon 7(B)(1)(c) of the Ohio

Code of Judicial Conduct (“7(B)(1)(c)’”).' Petitioner maintained

this misperception concerning the coverage of 7(B)(1)(c)

despite the absence of any indication that Respondent

Supreme Court of Ohio or its individual justices interpreted

7(B)(1)(c) in a fashion that would put Petitioner at risk for

making any of the statements contemplated.

Despite the absence of any threat of prosecution, Petitioner

initiated suit in the United States District Court for the

Southern District of Ohio, Eastern Division, seeking

assurances from the district court that he could speak his

mind without reprisal. The district court, reviewing this case

initially on Petitioner's motion for preliminary injunction and

again on Respondents’ motion for summary judgment,

entered judgment for Respondents, holding that Petitioner's

fears were unfounded and that there was no evidence that

the Supreme Court of Ohio either interpreted 7(B)(1){c) in

an overly expansive and illegal manner or sought to enforce

it in any way, legal or otherwise, against Petitioner for his

announced course of conduct.

The United States Court of Appeals for the Sixth Circuit,

in an unpublished per curiam opinion, affirmed the judgment

of the district court on October 31, 1988. Subsequent to the

Sixth Circuit's judgment, Petitioner filed a petition for

rehearing en banc, which was denied on January 24, 1989.

Petitioner's petition for writ of certiorari was docketed with

this Court on April 8, 1989.

3% Canon 7(B)(1)(c) states:

(1) A candidate, including an incumbent judge, for a judicial office:

(c) should not make pledges or promises of conduct in office other than

the faithful and impartial performance of the duties of the office; announce

his views on disputed legal or political issues; or misrepresent his identity,

qualifications, present position, or other fact.

ARGUMENT

|. PETITIONER CANNOT SATISFY THE RE-

QUIREMENTS FOR PLENARY REVIEW.

A. The Petition For Writ Of Certiorari Is

Untimely

On page 8 of Berger's petition for writ of certiorari, he

acknowledges that subsequent to the Sixth Circuit's

judgment in this case, he “filed a Petition for Rehearing En

Banc. .. .” See also cover page and first page of text of

Plaintiff-Appellant Sanford Berger's Petition for Rehearing

En Banc Containing Suggestions for Rehearing En Banc.

(A-1-2). Pursuant to Rule 20.2 of the Rules of the Supreme

Court of the United States and 28 U.S.C. § 2801(c), Berger

had ninety days from October 31, 1988, the date of the Sixth

Circuit's judgment, in which to file his petition for writ of

certiorari. Ninety days from October 31, 1988, was January

29, 1989. Consequently, unless Berger can identify a tolling

provision in this Court's rules, his petition was filed too late

and cannot be received by the Clerk.

The only tolling provision in this Court’s rules is found

in Rule 20.4, which provides, that

[t]he time for filing a petition for writ of certiorari

runs from the date the judgment or decree sought

to be reviewed is rendered, and not from the date

of the issuance of the mandate (or its equivalent

under local practice). However, if a petition for

rehearing is timely filed by any party in the case,

the time for filing the petition for writ of certiorari

for all parties (whether or not they requested

rehearing or joined in the petition for rehearing)

runs from the date of the denial of rehearing or

of the entry of a subsequent judgment entered on

the rehearing.

(Emphasis added.) Thus, Berger could suspend the deadline

for filing his petition for writ of certiorari only by filing with

the Sixth Circuit a petition for rehearing. He did not do so.

Rather, he filed a petition for rehearing en banc, which does

not satisfy the requirement for Rule 20.4. Berger's petition

for writ of certiorari, therefore, is “jurisdictionally out of time”

and must not be accepted by the Clerk. Rule 20.3.

B. This Case is Moot.

Berger was a candidate for judicial office in 1984. At the

time, there was no attempt whatsoever to discipline him under

Cannon 7(B)(1)(c). Moreover, the decisions of the lower courts

make it clear that the type of criticism of Ohio’s courts that

Berger intended to lodge was not prohibited by the Code

of Judicial Conduct. Finally, Berger has taken no action to

indicate that he plans to run again for judicial office.? Any

decision rendered by this Court, therefore, would be purely

advisory in nature. Thus, the fact that this case is moot makes

plenary review inappropriate.

C. The Sixth Circuit’s Decision is Not !n Conflict

With Any Decisions Issued By Other Circuits

Or This Court.

Petitioner has not identified a single court of appeals other

than the Sixth Circuit that has addressed the issue of the

disciplining of judicial candidates, nor has Petitioner pointed

to any decision of the Court that addresses the narrow

question presented herein. Consequently, there is no reason

for the Court to utilize this case as a vehicle for ensuring

jurisprudential uniformity or fairness.

* Berger's inaction in respect to again seeking office demonstrates that

there is no “reasonable expectation that... [he] would be subjected

to the same [state] action again.” Meyer v. Grant, _ US. —__,

108 S. Ct. 1886, 1890 n. 2 (1988). (Citations omitted.) Consequently, the

doctrine of “capable of repetition, yet evading review,” is inapplicable

to this case. Of course, the fact that the Supreme Court of Ohio never

has interpreted Canon 7(B)(1)(c) in a manner that poses any threat to

Berger or similarly situated persons renders it even less likely that a

controversy will arise in the future between the parties.

Not only is this case of little importance to the nation as

a whole, but its impact in the Sixth Circuit will be limited

because it was an unpublished per curiam opinion. As a

result, it will enjoy limited notoriety and application even

within that circuit. See Rule 24(B) of the Rules of the United

States Court of Appeals for the Sixth Circuit (“citation of

unpublished decisions .. . is disfavored’). Thus, exercise

of this court's plenary review is clearly unwarranted.

D. Neither Petitioner Nor Any Other Candidate

For Judicial Office Ever Has Been Disciplined

By The Supreme Court of Ohio For Violating

Canon 7(B)(1)(c).

Petitioner has not pointed to a single instance in which

he or any other candidate for judicial office in Ohio has been

disciplined for remarks made during the course of an election

campaign. There is absolutely no evidence that the Supreme

Court of Ohio would apply Canon 7(B)(1)(c) in an

unconstitutional fashion. Petitioner's unfounded

speculations alone should not provide sufficient justification

for the exercise of this court’s jurisdiction.

ll. THE SIXTH CIRCUIT’S JUDGMENT UP-

HOLDING THE LEGALITY OF CANON

7(B)(1)(C) IS CORRECT.

The Court has noted that if the construction of a statute

is fairly possible by which [a serious doubt of

constitutionality] may be avoided, ...a court should

adopt that construction. In particular, this court has

been willing to assume .. . [legislative] solicitude

for fair procedure, absent explicit statutory

language to the contrary.

Califano v. Yamasaki, 442 U.S. 682, 693 (1979). (Citations

omitted.) Thus, state legislation carries a strong presumption

of constitutionality. See, e.g, McDonald v. Board of Election

Commissioners of Chicago, 394 U.S. 802, 809 (1969). In

particular, legislation “which has not been authoritatively

construed by a state court should be construed in a manner

which will avoid .. . constitutional questions.” Dale Baker

Oldsmobile, Inc. v. Fiat Motors of North America, Inc., 794

F.2d 213, 221 (6th Cir. 1986) (citing New York v. Ferber, 458

U.S. 747 (1982)).

First, it is important to note what behavior is not prohibited

by Canon 7(B)(1)(c). It does not prevent a candidate for judicial

office from announcing his views on administrative or

procedural reform of the courts. See Matter of Riley, 691

P.2d 695 (Ariz. 1984); In re Inquiry Relating to Baker, 218

Kan. 209, 542 P.2d 701 (1975). It does not prevent honest

criticism of opponents, /d., and it does not inhibit a candidate’s

ability to conduct an effective campaign for office. These

were the very activities in which Petitioner intended to

engage.

On the other hand, a candidate for judge may not make

promises or pledges as to how he will decide certain cases

Or promise more favorable treatment to certain citizens at

the expense of their fellows. Such promises or pledges are

not made in connection with a judge’s faithful and impartial

performance in office. Indeed, they are so antithetical to the

concept of justice that the state has a compelling interest

in prohibiting their publication. See Morial v. Judiciary

Commission of the State of Louisiana, 565 F.2d 295, 302

(5th Cir. 1977), cert. denied, 435 U.S. 1013 (1978). It makes

no difference that the candidate making such promises is

sincere about keeping them. It is the very pledge itself,

regardless of whether it is true or not, that is anathema to

a free society.

Finally, it goes without saying that

judges are frequently called to adjudicate cases

squarely presenting social and political issues, and

the state’s interest in ensuring that judges be and

appear to be neither antagonistic nor beholden to

any interest or person is entitled to the greatest

respect.

Berger v. The Supreme Court of Ohio, et al., Case No. C-

2-84-1227, slip op. at 4 (S.D. Ohio Aug. 3, 1987) (citing Moria/

v. Judiciary Commission of the State of Louisiana, 565 F.2d

295, 306 (5th Cir. 1977), cert. denied, 435 U.S. 1013 (1978).°

Because Canon 7(B)(1)(c) permits every judicial candidate

to run “a truthful, upright and vigorous campaign,” Berger

v. The Supreme Court of Ohio, et al., Case No. 87-3935,

slip op. at 4 (6th Cir. Oct. 31, 1988), precisely the sort of

campaign Petitioner ran, it is not unconstitutional on its face

nor was it applied in an unconstitutional fashion in this case.

lll. PETITIONER, WHO HAD JUDGMENT

ENTERED AGAINST HIM, IS NOT ENTITLED

TO A FULL EVIDENTIARY HEARING TO

DETERMINE WHETHER HE IS A

PREVAILING PARTY FOR PURPOSES OF AN

AWARD OF ATTORNEY’S FEES PURSUANT

TO 42 U.S.C. § 1988.

42 U.S.C. § 1988 provides, in relevant part, that a “prevailing

party’ in an action predicated on 42 U.S.C. § 1983 may

recover “a reasonable attorney's fee as part of the [court]

costs.” A “prevailing party” is one who “receive[s] at least

some relief or the merits of his claim. .. .” Hewitt v. Helms,

482 U.S. 755, 760 (1987). “[A] favorable judicial statement

of law in the course of litigation that results in judgment

against the plaintiff does not suffice to render him a prevailing

party.” /d. at 763. (Emphasis added.) In the case at bar, the

lower courts granted judgment for Respondents, not

Petitioner. Petitioner received no damages, no injunctive

relief, and no declaratory judgment in his favor. There was

no settlement on terms favorable to Petitioner. Respondents

did notin any way alter their conduct in respect to Petitioner.

See id. at 761. At best, Petitioner received “a favorable

statement of law in an otherwise unfavorable opinion.” /d.

° The different role and responsibilities of judges as opposed to legislators

Clearly justifies Ohio’s different treatment of judicial candidates and

therefore eliminates any notion that Petitioner's right to equal protection

was violated.

at 762. It defies common sense to suggest that under the

circumstances, Petitioner is a prevailing party for purposes

of an award of attorney’s fees under § 1988.

To reguire a district court to conduct an evidentiary hearing

on the question of attorney's fees even after entering

judgment against the plaintiff in a § 1983 action would

undermine the concept of judicial economy and elevate

disputes concerning fee awards at the expense of disputes

on the merits. See Hensley v. Eckerhart, 461 U.S. 424, 437

(1983) (“request for attorney’s fees should not result in a

second major litigation”). Moreover, any plaintiff could force

a district court to conduct an evidentiary hearing on attorney's

fees, even after the court enters judgment for the defendants,

simply by exaggerating the scope of legislation and then

arguing that the more limiting application given to it by

enforcement officials is a direct result of his lawsuit. Because

the courts below correctly decided that Petitioner was not

a prevailing party and that he was not entitled to an

evidentiary hearing on that issue, there is no reason for the

Court to grant certiorari in this case.

CONCLUSION

For the preceding reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General

ANDREW I. SUTTER

Assistant Attorney General

Counsel of Record

30 East Broad Street, 17th Floor

Columbus, Ohio 43266-0410

(614) 644-5003

Attorneys for Respondents

May 15, 1989

A-1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CASE NO. 87-3935

SANFORD J. BERGER

Plaintiff-Appellant

- VS -

THE SUPREME COURT OF OHIO, ET AL.

Defendants-Appellees

PLAINTIFF-APPELLANT SANFORD BERGER’S

PETITION FOR REHEARING EN BANC

CONTAINING SUGGESTIONS FOR

REHEARING EN BANC

BERGER & FERTEL

SANFORD J. BERGER

ROBERT M. FERTEL

#305, 1836 Euclid Ave.

Cleveland, Ohio 44115-2234

Phone: (216) 781-5950

Lawyers for the Appellant, Berger

ANDREW |. SUTTER

Assistant Attorney General

State Office Tower, 16th Floor

30 E. Broad Street

Columbus, Ohio 43266-0410

Phone: (614) 466-2872

Lawyer for the Appellees

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SANFORD J. BERGER CASE NO. 87-3935

Plaintiff-Appellant : PLAINTIFF-APPELLANT

- SANFORD J. BERGER’S

- VS - : PETITION FOR REHEARING

>: EN BANC CONTAINING

THE SUPREME COURT : SUGGESTIONS FOR

OF OHIO, ET AL. > REHEARING EN BANC

Defendants-Appellees :

Plaintiff-Appellant, Sanford J. Berger, respectfully petitions

this Court for a rehearing en banc of the panel’s October

31, 1988 decision (a copy of which is appended hereto) which

affirmed the trial court's judgment.

REQUIRED STATEMENT FOR REHEARING EN BANC

| express a belief, based on a reasoned and studied

professional judgment that the panel decision is contrary

to the United States Supreme Court cases of New York Times

v. Sullivan, 379 U.S. 254 (1964); Brown v. Hartlage, 456 U.S.

45 (1982) and Boos v. Barry, U.S. , 108 S.Ct.

1157 (1988), and that to consideration by the full Court is

necessary to secure and maintain conformity therewith.

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