# Petition — Phillips v. Ford > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1988%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 426 U.S. 949 ## Text 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 . ; vagaioore so , ¢ ™ consaurcte — filed hy the parties . briefs were + 1-4 -? ; + - "* Oo the 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 ) | ++ "hod nero indu 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1988%3A1. Public record. Not legal advice.