Petition — Phillips v. Ford

In The

SUPREME COURT OF THE UNITED STATES.”

October Term, 1975

APR 19 1976

—_— ——

— a

cise

RANDOLPH PHILLIPS, as CHAIRMAN

of THE COMMITTEE FOR FAIR PLAY

FOR VOTERS and as a qualified voter

of the United States and on behalf of

all such voters similarly situated,

Petitioner,

-against-

GERALD R. FORD as claimant to the

title and office of PRESIDENT of the

UNITED STATES of AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

—_ — —- = —-—-

— — — = ——— — -- - —

Randolph Phillips

Petitioner Pro Se_

30 East 72nd Street

New York, N, Y, 10021

INDEX

Opirions Below

Jurisdiction

Questions Presented

Relevant sections of the CONSTITU-

TION of the UNITED STATES

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix

le

TABLE OF CASES

Attorney General v, Barstow,

4 Wisconsin 567 10, 11

Burroughs v. United States, 290 U.5, 534 14

Coleman v. Miller, 307 U.S, 433 16

Election cases 13

Kujek v. Goldman,150 N, Y, 176 18

Reynolds v, Sims,377 U.S, 533 14

Schlesinger v. Reservistes, etc, 418 U. S.

208 9,22

State ex rei, Lafollette v. Kohler, 16

200 Wisonsin 518

United States v. Richardson, 418 U.S.

166 9, 21

United States v, Smith, 286 U.S, 6 17

Williams v. Rhodes, 393 U.S, 23 15

TREATISE

Cooley, CONSTITUTIONAL LIMITATIONS,

(8th ed, , Vol, II, 1927) 10

SUPREME COURT OF THE UNITED STATES

October Term, 1975

- —

RANDOLPH PHILLIPS, as CHAIRMAN

of THE COMMITTEE FOR FAIR PLAY

FOR VOTERS and as a qualified voter

of the United States and on behalf of

all such voters similarly situated,

Petitioner,

-ag?inst-

GERALD R, FORD as clairnant to the

title and office of PRESIDENT of the

UNITED STATES of AMERICA,

Respondert.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

Petitioner Randolph Phillips, as Chairman of

THE COMMITTEE FOR FAIR PLAY FOR VOTERS

and as a qualified voter of the United States and

on behalf of all such voters similarly situated,

plaintiff-appellant below, prays that a writ of certi-

orari issue to review the judgment of the United

States Court of Appeals for the District of

Columbia Circuit entered on January 21,1976,

OPINIONS BELOW

The Opinion of the District Court for the

District of Columbia is not reported and appears

2

at pages A-1-2 hereafter, The Opinion of

the Court of Appeals is not reported and

appears at pages A-3 to A-6 hereafter,

JURISDICTION

The judgment of the Court of Appeals

was entered on January 21,1976 and appears

at page A-9 hereafter, The jurisdiction

of this Court is invoked under 28 U,S,C,

§ 1254 (1),

QUESTIONS PRESENTED

1, Where the complaint alleges uncontested

facts establishing the undenied conclusion that

President Richard M, Nixon and Vice-President

Spiro T. Agnew obtained their re- election on

November 7,1972 by fraud and acts of breach

of trust, and thereafter resigned from office

under pressure of pending impeachment and

criminal proceedings, does a qualified voter of

the Udited States have standing to sue, on behalf

of himself and the 28,357,657 simils=ly situated

losing voters for the McGovern-Shriver ticket,

for a declaratory judgment to determine the

legality of the fraudulently ele ‘cted President's

appointment of a Vice President to succeed him?

2, Was it correct for the Court of Appeals

to affirm dismissal of the complaint on the

basis of the doctrine of Fx Parte Levitt,

— eee ee

302 U,S, 633 (1937) that plaintiff's interests

are ‘undifferentiated from that of the general

public’’ when one Party retains the fruits of its

corrupt victory and was opposed by petitioner

and 28,357,667 members of the voting public?

RTH

rena

ne ae i all i

3

3. May it fairly be said that the remedy

which a losing voter for the losing candidate

of the Democratic Party and persons similarly

situated - some 28,357,667 McGovern-Shriver

voters - seeks of declaring the election invalid

for fraud, is ‘merely a general interest

common to all members of the public” when

it is a notorious fact that "the public’’ was

split into two opposing camps at the November,

1972 election, some 45,767,218 persons having

voted for the Nixon-Agnew ticket?

4, Since there appears to be no precedent

for extending the Ex parte Levitt doctrine

to partisan and contested voting rights cases,

and the complaint clearly alleges a ''case or

controversy’ of a McGovern-Shriver voter

against the Nixon-Agnew candacies, and the

subsequent appointment of Gerald R, Ford as

Vice-President, does not the decision of the

Court of Appeals deprive petitioner of his

Constitutional right under Article III of the

Constitution of the United States to have the

federal courts adjudicate his "case or con-

troversy’, which clearly arises under the

Constitution and also in view of diversity

jurisdiction invokes the common law applic-

able to corrupt elections”?

5. Does the doctrine of Ex Parte Levitt

apply to bar petitioner's standing “to sue for

a declaratory judgment that the appointment

of Gerald R. Ford as Vice-President of the

United States violated Article I, Section 6,

Clause 2 (the "emoluments clause’) ?

Since the views on this issue were not "common"

to all members of the House of Representatives,

4

some 35 of whom voted against respondent

Ford's confirmation as Vice President after

this issue was raised in the House, while

337 members voted for confirmation, is not

the Court of Appeals' extension of the Ex

Parte Levitt doctrine to these facts a

violation of its rule that the interest to be

vindicated be ‘common to all concerned ?

6, Since the Congress enacted with the

approval of the President of the United States

Public Law 93-178 (December 10,1973)

authorizing "Any person aggrieved by an

action of the Attorney General (to) bring a

civil action in the appropriate district court

of the United States to contest the constitu-

tionality of the appointment and continuance

in office of the Attorney General on the

ground that such appointment and continuance

in office is in violation of article I, section 6,

clause 2, of the Constitution" (the 'emolu-

ments clause"), has not the premise of Ex

Parte Levitt, which was an attack on a

new member of this Court based on this

clause, been superseded by an appropriate

declaration of Congressional policy that an

appointment of the President, subject to

confirmation by the Senate, may be attacked

for violation of the "emoluments clause’ by an

aggrieved person - here an aggrieved voter -

in the federal courts”?

5

Relevant Sections of the CONSTITUTION

of the UNITED STATES

ARTICLE II, Section 1, The executive

Power shall be vested in a President

of the United States of America, He

shall hold his Office during the Term

of four years, and together with the

Vice President, chosen for the same.

Term, be elected as follows * * * *

x * *

ARTICLE I, Section 6, Clause 2, No

Senator or Representative shall, during

the Time for which he was elected, be

appointed to any Civil Office under

the Authority of the United States, which

shall have been created, or the Emotlu-

ments whereof shall have been increased

during such Time] * * *

Tne meaning of "elected" in

Article II, Section 1 of

the Constitution,

"Elected" can only mean "fair and honestly

elected,'' It cannot mean “elected by fraud or

other corrupt means."' To import such a

meaning into the intention of the Founding

Fathers would be to state they created a Republic

and simultaneously the means for its destruction,

STATEMENT OF THE CASE

The complaint herein was filed on May 15,

1974, Defendant GERALD R, FORD was served

with the summons und complaint while still

acting as Vice President of the United States

on July 10,1974, On July 30,1974 he moved to

dismiss the case for lack of subject matter

jurisdiction, On or about September 3,1974, ;

plaintiff RANDOLPH PHILLIPS, as CHAIRMAN

of the COMMITTEE for FAIR PLAY FOR VOTERS

and as a qualified voter of the United States

and on behalf of all other persons similarly

situated, i,e., the voters for the McGovern-

Shriver ticket at the November 7,1972 election,

moved for (1) declaratory judgment on Counts

I and II of the complaint alleging that the Nixon-

Agnew ticket had obtained its re-election at

said election by acts of fraud and breach of

trust and alleging in support thereof the WATER-

GATE evidence and the evidence before the

House Judiciary Committee's impeachment in-

quiry, and Nixon's admissions with respect to

the tapes; and (2) for summary judgment on

Count III, which also alleged uncontested facts

that FORD was appointed VICE PRESIDENT of

the UNITED STATES on October 12,1973 after

he had voted on September 1969, while a member

of the House of Representatives, to increase the

salary of the Vice President of the United States

from $43,000 annually to $62,500 annually, and

after he had voted on October 11,1973, while a

member of the House, for "cost-of-living increases

in the annuity payable to the Vice President as a

federal retirement benefit, Tine complaint alleged

without contradiction at any “ime that the subd-

sequent appointment of defendant FORD violated

ARTICLE I, section 6, clause 2 (the ‘'emolu-

ments clause") of the CONSTITUTION of the

UNITED STATES,

After defendant FORD'S motion to dis-

miss had been made on July 30,1974 snd

prior to plaintiff making his motions on

September 3,1974 for declaratory judgment

and summary judgment, Richard M, Nixon

resigned as President of the United States

on August 9,1974 (Agnew having resigned

as Vice President prior thereto and defen-

dant FORD having been appointed VICE

PRESIDENT as aforesaid on October 12,

1973) and FORD took on August 9,1974 the

oath of office as PRESIDENT of the UNITED

STATES,

The parties, including the courts below,

treated the accession of defendant FORD to

the office of PRESIDENT of the UNITED

STATES as in substance and effect a supple-

mental allegation to the complaint, this fact

being shown by plaintiff's affidavit affirmed

to September 3,1974, It did not change the

substantive issue, since if he were disquali-

fied under the CONSTITUTION of the UNITED

STATES to be VICE-PRESIDENT defendant

FORD was as necessary consequence also

disqualified to succeed from that office to the

office of PRESIDENT of the UNITED STATES,

The court below fails to follow the district court

Judge Waddy of the District Court for

the District of Columbia granted defendant

8 9

FORD'S motion to dismiss the complaint by obstacle to granting plaintiff the declaratory

order filed September 27,1974, stating in relief prayed for, The Court stated in perti-

pertinent part therein: nent part:

* * * the removal of a Presi- " The 'political question’ doctrine

dent or Vice-President from office need not be considered here because

and denial of the remuneration of such appellant lacks standing to sue, This

office, as sought in plaintiff's com- Court will follow the precedent of

plaint, is an issue committed exclusive- | Ex Parte Levitt, 302 U.S, 633 (1937),

ly to a coordinated political department, - which dismissed for lack of standing

see Article I, Section 2, clause 5, the complaint of a citizen and member

Article I, Section 3, Clauses 6 and 7 of the bar of the Supreme Court that

of the Constitution of the United States, Justice Black was prohibited by the

and,thereby, presents a political Emoluments Clause from serving as

question over which this Court does a Supreme Court Justice, The Court

not have subject metter jurisdiction, held the judicial power could not be

Baker v, Carr, 359 U,S,186 (1961) * * * "' invoked by one whose interest is

A-1-5> — "merely a general interest common

to all members of the public’, 302

The District Court thus erroneously construed U.S, at 634, The vitality of this prin-

tne complaint as invading the impeachment ciple is indisputable, as appears from

powers of the Congress, when those powers recent decisions dismissing complaints

apply only to a President and Vice President by persons whose interests were deemed

who have been constitutionally elected or undifferentiated from that of the general

appointed to their office and thereafter commit public, United States v. Richardson,

in office ''Treason, Bribery, or other high 418 U.S, 166, 176-179 (1974); Schlesinger v.

Crimes and Misdemeanors," Article II, Sec. 4, Reservists Committee To Stop the War,

The complaint at no point alleged that defendant 418 U.S, 208, 220 (1974), (A-3-4-5).

FORD had committed in office any of these

offenses, and solely alleged acts before he ; None of the cases cited by the court below is

took the oath of office that barred him from an election or voting rights case, and in none

ascending to his high office, fe was the “general public’ split into two major

s | party opposing camps, as_here.

Thus the Court of Appeals correctly refused

to follow the opinion of the District Court,

and selected lack of "standing to sue" as its

ea ee ee ee ee

REASONS FOR GRANTING THE WRIT

A. "BUT WHEN THE QUESTION IS, WHO

IS THE EXECUTIVE OF THE STATE,

THE JUDGES HAVE FUNCTIONS TO

PERFORM * * *

Almost 50 years ago Cooley wrote in his

treatise on CONSTITUTIONAL LIMITATIONS

(8th ed, , Vol, II, 1927):

"But when the questicn is, who is the executive

of the State, the judges have functions to perform,

which are at least as important as those of any other

citizens, and the fact that they are judges can never

be a reason why they should subinit to a usurpation,

"A successful usurpation of the executive office can

only be accomplished with the acquiescence of the other

departments; and the judges, for the determination of

their own course, must in some form inquire into or

take notice of the facts,

"In a controversy of such momentous import, the

most formal and deliberate inquiry that the circurnstances

will :' admit of is alone excusable; and when made and

declared, the circumstances must be extraordinary in

which it will not be cffectual. In the case referred to, *

the usurper, though the candidate of a party embracing

half the voters of the State. found himself utterly

stripped of power by the decision of the court against

him; public support fell away from him, and success

in his usurpation became an impossibility." (p, 141)

-_—-— —-——-— — -—-- - —

ll

B. Tne decision below is an exten-

Sion by the federal judiciary

of the scope of the Watergate

"

cover-up

Acting not out of corrupt motive but

judicial timidity, the court below has concealed

by taking refusge in the "lack of standing to <ue''

doctrine and distorting it, the un onsrituti..aal and

fraudulent means by which resr © it Gerald

R. Ford ascended to the high office of Vice

President of the United States and then President

of the United States, By the unprecedented

extension to a voting rights and election case of

the "lack of standing to sue" doctrine of Ex

Parter Levitt, 302 U, S, 633 (1937) and the patent

fiction that ''the general public", including the

MeGovern-Shriver voters of which one was

petitioner herein, and the Nixon-Agnew voters

" 26 02. "

had au "“undifferentiz and common" interest

12

at the Nove. 7,197 goneral election, the

Court below leaves the fruits of that tainted

and corrupt election in the hands of respondent

Gerald R, Ford. Tnus, granting the writ herein

is necessary to resolve a federal question

of the highest nafional importance that has

been incorrectly decided by the court below,

and which will otherwise extend the scope of the

Watergate ‘cover-up’ by means of the

federal judicial system, Only by granting

the writ herein will the erroneous and

unprecedented extension of the doctrine of

Ex P.rte Levitt tu voting rights and election

cases be corrected,

C. The decision of the Court

of Appeals negates 90 years

of judicial decisions.

13

The refusal of t:'* court below to give

petitioner standing to sue to review the fair-

ness and freedom from corruption of the 1972

Presidential election repudiates a course of

federal justice that for more than 90 years

has recognized the rights of access to the

courts by voters to secure fair and honest

elections, * Not once before to our knowledge

See Fx Parte Yarbrough, 110 U.S. 651 (1881); In re Quarles,

188 U.S, 532 (1095); Nareyinan v, Collins, 341 U.S, 651; United States

v. Original Knights of the Ku Kiux Kian, 250 F.Supp, 330;Wesberry v.

Sanders, 37¢ U.S.1 (19C1); Williams v,’ Rhodes, 393 U.S, 23 (1969):

O'Brien v. Brown, 409 U.S.1 (1972), dissent,15; Oregon v, Mitchell,

400 U.S, 112; Burrouchs v, United States, 290 U.S. 534 (1934); Common

Cause v. Pemocratic National Committce, 333 F. Supp. 803 (D, D.C, 1971)

Duncintcl! v. City of Houston, 333 F.Supp, 973 (1971): Moore v. Ogilvie,

394 U.S, 814; Reyrolds v. Sims, 377 U.S, 533; Risirg v. Brown, 23

F, Supp. 024 (1970); Straus v. Gilbert, 293 F.Supp. 264 (1963); Rell v.

Southwell, 376 F, %¢ 359; Toney v. White, 482 F.2d 310, iladsott v.

Amos, 394 U.S,353 (1959); Taylor v. Morroe County Board of Super-

visors, 421 F,2¢ 1032 (1970); Alien v, State Reard of Viections, 393 U.S

S44 (1957); Hadley v. Junior Collegé Dist.,397 U.S. $9 (1970); Avery v.

Midland County, 390 U.S, 474 (1968); United Sates v, Classic, 313 U.S, 209

M940), Dunn v, Blumstein, 405 U.S. 330 (1972) ; Baker v. Carr, 369 U.S.186

i4

have the doors of the federal courthouse

been shut against the plea of a dishonest

and corrupt election, Jt is singular that

they should oe shut here so as to keep

from judicial examination an election that

paralleled the grossest acts of high Fxecutive

dishonesty in American history, The decision

of the court below constitutes a perversion

of the policy of Reynolds v, Sims, 377 U.5

533 (1964):

Undoubtedly the right of suffrage is a fundamental

matter in a free and dcimocratic society. Mspecially

since the right to exercise the fran hise in a free.

and unimpaired manner is preservative of other

basic civi) and political rights, any allered intringe-

ment of the right of citizens to vate must bbe ererfuliv

aueia’

aaitea ‘ \ «4

and incticulousiy scrutinized,” ( 561-562). (einp! tsi

Supplied)

The power to protect the choice of electors

from fraud or corruption was recognized in

Burroughs v, United States, 290 U,5S,534

— ——

(1934), And this Court therein stated:

"If this government is anything more

than a mere aggregation of delegated agents

of other States and governments, each of

wiich is superior to the general government,

it must have the power to protect the elections

——— Know ee eo -—<—_ <— oe

on which its existerce depends from violence

and corruption, If it has not this power it

is left helpless before the two great natural

and historical enemies of all republics,

open violence and insidious corruption, | (546)

(our emphasis)

It may not fairly be doubted that the judiciary

shares with the Congress this indispensable

power of vigilance to en: re fair elections, *

—* As this Court stated in Williams v.

hodes, 393 U.S. 23:

"Tne requirements imposed by Due

Process clause remains the same -

no matter what the institution to which

the decision is entrusted, political

groups have the right to be heard before

it.'’ (p. 42)

16

Since the only correct meaning

of “elected” as used with

respect to the President and

Vice President of the United

States in Article II, Section 1

of the Constitution is by "fair

and honest methods" and there

is no “valid election' in English

or American common law when tue

Executive's election is prv ured

"by fraud, intimidation, or

corruption’ (State ex rel,

LaFollette v. Kohler, 200 Wis.

518 at 355-556), and this Court

has held in Coleman vv, Miller,

307 U.S. 433, that legislators

had standing to protect ‘the

17

effectiveness of their votes", then

a fortiori, the voters who elect the

legislators must have standing in this Court

and below to protect ''the effectiveness of

In United States v, Smith, 286 1.5, 6,

—-- -=—

members of the Senate were deemed to

have standing to challenge the method by

which their votes had been counted i:

confirmation of a Pre~,! «ia. woint -,

Since Senators and othe: . 4.:-u.urs are

merely the agents of the electorate, to

confer a greater access to the federal

courts upon them than is conferred upon

their principals is to make the servant

superior to the mester, The decision

below violates the established principle

18

that ''Tne law should never suffer an injury

and damages without a remedy,'' Kujek v.

Goldman, 150 N, Y, 176,

E, The petitioner in Ex Parte

Levitt, supra, in seeking unsuccess-

fully, to enforce the ‘''Emoluments

Clause" against a member of this

Court failed to allege "that he

has sustained,..a direct injury "

Ex Parte Levitt, supra, at 634, Here

petitioner and the 28,357,667 voters

for the McGovern-Shriver ticket

similarly situated and upon whose

behalf he sues, sustained the

direct injury of losing the

election and therefore the

effectiveness of their vote as

19

a result of the corruptly pro-

cured re-election of Richard

M. Nixon and Spiro T,Agnew as

President and Vice-President

of the United States, accom-

panied by nondisclosure of their

acts of criminal tax evasion,

obstruction of justice and the

conspiracies that sent Mitchell,

Haldeman, Ehrlichman, Kalmbach,

Magruder, into the courts to face

indictments with 19 other White

House accomplices and resulting

in guilty pleas or convictions,

It is undeniable that respondent FORD

owes his position to President Nixon's

re-election by these corrupt means and that

the Republican Party and other Nixon-Agnew

voters have suffered no "direct injury’

20

comparable to petitioner and the similarly

situated 28357,667 McGovern-Shriver voters

whose representatives lost their campaign

for election to the Presidential offices,

Thus the injury of losing the election is not

a ''generalized" injury ‘undifferentiated from

that of the general public’ (Ex Parte Levitt,

supra), since a su’stantial part of that

public succeeded in electing the Nixon-

Agnew candidates to their high offices, thus

making possible the subsequent appointment

of respondent FORD as Vice President and

his subsequent accession to the office and

F, Tne fact that this Court ruled

some 39 years ago that the

Emoluments Clause could not be en-

forced by a member of the Bar

21

of this Court against Mr, Justice

Black should have no value as

a precedent, since I.E VITT,

the petitioner, could show no

"direct injury" and he had not

even lost a case due to the

vote of Mr. Justice Black. Here

petitioner and his 28,357,667

Similarly situated McGovern-

Snriver voters have lost a Presidential

election due to the acts complained of,

The magnitude of their injury is so

vast in its impliacations by

comparison toLEVITT's claim as to

make his case worthless as a precedent,

and since the only two other cases cited

by the court below in support of its

ruling (United States v, Richardson,

22

418 U,S, 166,176-179 (1974); Sshlesinger v,

418 U,S, 208, 220 (1974) ), are founded on

Ex Parte Levitt, supra, and are not election

or voting rights cases, the decision below

is plainly without support in authority and

contra the vast host of election

and voting rights cases decided

in this Court and the lower federal

courts during the past 90 years,

(p.13, supra). Thus, despite the exalted

office of respondent, the writ should be

granted in order to extirpate the pernicious

and novel doctrine that a losing voter has

no standing in the federal courts to protest

a corrupt election at the highest level of

Government,

G,

23

Since in enacting Public Law

93-178 (December 10,1973), Congress

declared that a person aggrieved

by a Presidential appointment,

namely that of an Attorney-

General of the United States,

for alleged violation of the

Emoluments Clause of the

Constitution, could sue in the

federal courts to nuliify the

appointment, there is no basis

for holding that a voter

aggrieved by gthe appointment

of a Vice President in violation

of that Clause should not have

Similar access to the federal

courts,

24

25

H. This Court has never decided

. CONCLUSION

any of the profoundly important

; For the foregoing reasons, a writ of

issues raised herein bearing

certiorari should issue to review the jud ,

on the purity of the President- judgment

and memorandum opinion of the United States

ial election process, and the

Court of Appeals for the District of Columbia

enforcement by a voter of

Circuit,

a right to an honest and fair

election under Article II, Section Respectfully submitted,

illite P

1, of the Constitution of the United RANDOLPH PHILLIPS

30 Fast 72nd Street

States and under the common law, In New York, N, Y, 10021

this Presidential election year Petitioner Pro Se,

it is of national and world

April 20,1976

significance for this Court to

affirm that right and to give

a judicial remedy for its denial,

even if that remedy touches

upon the occupant of the highest

office in the land,

A-]

APPENDIX

Order of United States District Court for District

of Columbia, per Waddy,D,J.,entered 9/27/1974

Upon consideration of the motion of defendant

Gerald R. Ford to dismiss the complaint herein, the memo-

randum of points and authorities in support thereof and

the opposition thereto, and upon further consideration

of plaintiff's motions for declaratory judgment and for

summary judginent on Count III of the complaint, the memo-

randa of points and authorities in support thereof and

in opposition thereto, and the entice record herein,

and it appearing that plaintiff's complaint, filed May 15,

1974, sought:

1. To enjoin then-President Nixon and then-

Vice-President Ford from occupying their

respective offices on the ground that the

- 1972 election was won by fraudulent means;

2. An order cf this cuent vequietne @efendants

Nixon, Agnew and Ford to refund to the

United States Treasury all salaries paid

to them while occupying the offices of

President and Vice-President; and

A-2

3. Plaintiff's motion for summary judgment on

Count III of the complaint requests this

Court to declare the appointment of de-

fendant Ford to the Vice-Presidency to be

invalid ee I, Section 6,

clause 2 of the Constitution of the United

States and to enjoin this defendant from

eususyine the office of President;

and it further appearing to the Court that the removal

of a President or Vice-President from office and denial

of the remuneration of such office, as sought in plein-

tiff's complaint, is an issue committed exclusively to a

coordinate political department, see Article I, Section 2,

clause 5, Article I, Section 3, iunhen 6 and 7 of the

Constitution of the United States, and, thereby, presents

@ political question over which this Court does not have

subject matter jurisdiction, Baker v. Carr, 369 U.S. 186

(1961); Koniagsberg v. Nixon, No. 73-2455 (9th Cir. March 11

1974); Coffman v. Nixon, Civil Action No. W-5155 (D. Kan.

. . 4

Feb. 1, 1974); it is therefore by the Court this IG?

Gay of September, 1974,

1d R.

ORDERED that the motion of defendant Gera

anted,

Ford to dismiss be, and the same hereby 1S, 9F

ana it is further

h reby is dismissed on the ground that the our

same S ‘ S» m & 4

subject matter of this

does not have jurisdiction of the

action.

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ORDERED AND ADJJUGED by this Court t t Jud

alec from in this cause hereby affirmed, for

District Court appealiec from in this cause i t )

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the reasons set forth in the attached memora

FILED JAN 21 1976 Per Curian

For the Court

- a

United States Court of Appeals TokiatHs om

for the District of Columbia Circuit Robert A. Bonner

Clerk

*Sitting by designation pursuant to 28 U.S.C. 6 292(4

llips v. Gerald R. Ford, President

No. 74-2060 -- Randolph Phi

cGowan, Leventhal and District Judge

(Before Circuit Judges ™M

Pryan*)

Memorandum

Appellant Phillips, as chairman of The Committee for

Fair Play for Voters, and as a qualified voter suing in

his own and on behalf of all other voters similarly situ-

ated, filed a complaint, on May 15, 1974, in the U.S.

District Court alleging that Richard M. Nixon and Spiro T.

Agnew obtained their reelection on November 7, 1972 by

fraud, and therefore a qualified voter has the right to

obtain a District Court determinatior of the legality

of the appointment by Mr. Nixon (denominated a “usurper")

of Gerald R. Ford as vice-president t2 succeed him in the

event of resignation. Plaintiff claims this presents a

jJusticiable issue, as does the claim in Count III of his

complaint, that Gerald R. Ford became vice-president in

violation of Article I, section 6, Clause 2 (the “Emolu-

~

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

ments Clause”) of the Constitution, in that while he was

a member of the House of Representatives, Public Law 9l-

67 was enacted (September 15, 1969) increasing the salary

of the Vice President from $43,200 to $62,500, and Pubiic *

Law 93-136 was enacted (October 24, 1973) giving “cost of

living" increases to the annuity payable to the Vice Presi-

dent as federal retirement benefits. Mr. Nixon nominated

Mr. Ford to the office of Vice President on October 12, 1973

and after confirmation by the Senate on November 27, 1973,

and by the House of Representatives on December 6, 1973,

Mr. Ford assumed the office of Vice President. Subsequent

to the filing of the complaint, Mr. Nixon resigned and

Mr. Ford took the oath as President of the United States.

On September 27, 1974, the District Court dismissed the

complaint for lack of subject matter jurisdiction, on the

ground that the relief sought in the complaint, the removal

of a President or Vice President from office and the denial

of his remuneration in office, presents a political question

over which the court does not have jurisdiction.

The “political question” doctrine need not be considered

here because appellant lacks standing to sue. This court will

follow the precedent of Ex parte Levitt, 302 U.S. 633

(1937), which dismissed for lack of standing the complaint of a

citizen and member of the bar of the Supreme Court that Justice

Black was prohibited by the Emoluments Clause from serving as a

A-6

Supreme Court Justice. The Court held the judicial power could

not be invoked by ore whose interest is “merely a general

interest common to all members of the public.” 302 U.S. at

634. The vitality of this principle is indisputab-e, as

appears from recent decisions dismissing complaints by

persons whose interests were deemed undifferentiated

from that of the general public. United States v.

Richardson, 418 U.S. 166, 176-79 (1974); Schlesinger v.

Reservists Committee to Stop the War, 418 U.S. 208, 220

(1974). .

Affirmed.