Amicus Brief — First Nat. Bank of Boston v. Bellotti

Supreme Court of the United States

OctToBER TERM, 1976

No. 76-1172

Tue First NATIONAL Bank or Boston, NEW ENGLAND

MERCHANTS NATIONAL Bank, THE GILLETTE Com-

PANY, Dicrra Equipment CORPORATION, and

WymMan-Gorpon Company, Appellants,

v.

Francis X. BRLLOT TI, ATTORNEY GENERAL, and CoALI-

TION FOR Tax RerForM, INC., and UNITED PEOPLES,

Inc., Appellees.

On Appeal from the Supreme Judicial Court

for the Commonwealth of Massachusetts

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS

CURIAE AND BRIEF OF AMICUS CURIAE PACIFIC

LEGAL FOUNDATION IN SUPPORT OF APPELLANTS

Ronatp A. ZUMBRUN

Rosert K. Best

JoHN H. FINDLey

Pactric LEGAL FounpaTIon

455 Capitol Mall, Suite 465

Sacramento, California 95814

ALBERT Ferri, JR.

W. Hua O’Riorpan

PactFic LEGAL Fou NDATION

1990 M Street, N. W., Suite 550

Washington, D.C. 20036

Counsel for Amicus Curiae

Pacific Legal Foundation

Sau KaZzMANn

Paciric LecaL FounbDATION

1990 M Street, N. W.

Suite 550

Washington, D.C. 20036

Of Counsel

o TING, INC., ASHINOTON, D. C.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-1172

Tue First NATIONAL Bank or Boston, NEw ENGLAND

MERCHANTS NATIONAL Bank, THE GILLETTE Com-

PANY, Diarra EQUIPMENT CORPORATION, and

WyMAN-GorDon CoMPANY, Appellants,

v.

Francis X. BRLITLOTTI, ATTORNEY GENERAL, and CoaLt-

TION FOR Tax RerorM, INC., and UNITED PEOPLEs,

Inc., Appellees.

On Appeal from the Supreme Judicial Court

for the Commonwealth of Massachusetts

MOTION OF PACIFIC LEGAL FOUNDATION FOR

LEAVE TO FILE BRIEF AS AMICUS CURIAE

IN SUPPORT OF APPELLANTS

Pursuant to this Court’s Rule 42, Pacifie Legal

Foundation hereby respectfully moves the Court for

leave to file its brief amicus curiae bound with this

Motion.

Pacifie Legal Foundation has the consent of counsel

for appellants, but has been unable to receive consent

from counsel for appellees. Letters from appellants

and appellees have been filed with the Clerk.

The accompanying brief urges this Court to reverse

the decision of the Supreme Judicial Court for the

Commonwealth of Massachusetts in The First Na-

tional Bank of Boston, et al v. Bellotti, et al., 359

N.E.2d 1262 (1977), which held the provisions of Mas-

sachusetts General Laws (G.L.) ¢.55 § 8 Constitutional.

Pacific Legal Foundation (PLF) is a nonprofit, tax-

exempt corporation organized and existing under the

laws of California for the purpose of engaging in liti-

gation in matters affecting the broad public interest.

Policy for the Pacifie Legal Foundation is set by a

Board of Trustees composed of concerned citizens, the

majority of whom are attorneys. The Board evaluates

the merits of any contemplated legal action and au-

thorizes such legal action only where the Foundation’s

position has broad support within the general com-

munity.

The Pacifie Legal Foundation, due to its unique

publie interest perspective, believes that it can provide

this Court with a more complete argument of the

public interests at stake in this litigation.

Pacific Legal Foundation believes that the Supreme

Court of Massachusetts erred in upholding the con-

stitutionality of G.L. ¢.55 §8 because the statute is

constitutionally invalid as a denial of freedom of

speech protected by the First Amendment. If the deci-

sion is allowed to stand, the statute will have a chilling

effect on the exercise of freedom of speech by appel-

lants and parties similarly situated and a direct detri-

mental effect on the functioning of business corpora-

tions.

3

Many of PLF’s supporters and contributors are di-

rectly affected by the subject matter of this litigation

and are concerned about the implications that such an

infringement on free speech by a state legislature will

have an the quality of public debate necessary to the

electoral process. Secondly, as consumers they have a

substantial interest in the ultimate impact such legis-

lation will have on the economic well-being of Ameri-

can business corporations.

PLF strongly urges that the issues this case raises

he considered on the merits. The case is not moot. It is

typical of those cases which this Court has character-

ized as capable of repetition, yet evading review“.

Southern Pacific Terminal v. ICC, 219 US. § 498

(1911). Furthermore, we believe that the issues in this

case involve an infringement on fundamental rights

protected by the Constitution and that there is a great

public interest in the clarification of the constitutional

questions presented.

4

SUBJECT INDEX

For the foregoing reasons, Pacifie Legal Foundation *

respeetfully requests permission to participate as an

amicus curiae and to file the attached brief supporting

appellants.

Sam KAZMAN

Respectfully submitted,

Ronatp A. ZUMBRUN

Rosert K. Best

Joun H. FIN Dir

Paciric Lecat FounpDATION

455 Capitol Mall, Suite 465

Sacramento, California 95814

ALERT Ferri, JR.

W. Hun O’Ri0rgpan

Pactric LecaL FounDATION

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Counsel for Amicus Curiae

Pacific Legal Foundation

Pactric LecaL FounDATION

1990 M Street, N.W.

Suite 550

Washington, D.C. 20036

Of Counsel

Motion For Leave To Fun Barrer As Amicus Curnmez. 1

ARGUMENT

I. Under The Traditional Standard i

Case Is Not — reeaiecaadbenes

II. The Mootness Doctrine Should Be Narrowly

yo In Cases Involving Fundamental Free-

1 .

r h aT

TABLE OF AUTHORITIES CITED

Cases:

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

ar President & Commissioners, 393 U.S. 195

ii Table of Authorities Continued

Page

instein v. Bradford, 423 U.S. 147 (1975) ......... 4

— . 4 — Mini-Theaters, Inc., 427 U.S. 50,

07 hh. „„

Unrrep Srarzs Coxsrrruriox:

Article III (iu 2

First Amendmennitnʃé 2, 6

Rolxs:

Supreme Court Rules, Rule 22.. 1

STATUTES:

Mass. G.L. 6.55 6) g;. 2, 5

IN THE

Supreme Court of the United States

OctToser TERM, 1976

No. 76-1172

THE First NATIONAL BANK or Boston, New ENGLAND

MERCHANTS NATIONAL Bank, THe GILLETTE Com-

PANY, Diarra EQuIPMENT CORPORATION, and

WyMan-Gorpon Company, Appellants,

V.

Francis X. Bettorri, ArroRNEY GENERAL, and CoaLt-

TION FOR Tax RETORu, Inc., and Unrrep Propixs,

Inc., Appellees.

On Appeal from the Supreme Judicial Court

for the Commonwealth of Massachusetts

BRIEF OF AMICUS CURIAE PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS

The interest of the amicus curiae is set out in the

preceding Motion to file this brief.

OPINIONS BELOW

The opinion of the Supreme Judicial Court for the

Commonwealth of Massachusetts is reported at 359

N.E.2d 1262 (1977).

2

The Amicus adopts the Statement of the Case as set

forth in Appellants’ Jurisdictional Statement.

In order to place the argument of amicus against a

finding of mootness in proper perspective, a brief de-

scription of those interests which Pacific Legal Foun-

dation has identified as involved in this case follows.

The Massachusetts statute here challenged will have

a comtinvfed chilling effect on the political expression

of appellants and has not been mooted by the passing

of the November 2, 1976 election. That election marked

the fourth time that the Graduated Income Tax

(GIT) referendum in issue had been placed before

the voters of Massachusetts and there is no guarantee

that it will not reappear in subsequent elections. Fun-

damental rights of freedom of political expression will

continue to be impaired by the decision of the Supreme

Judicial Court of Massachusetts upholding the consti-

tutionality of this statute.

Pacifie Legal Foundation recognizes that the effect

of the statute is not limited to restricting the rights of

appellants but moreover, will be felt by the general

public. By restricting the political expression of busi-

ness corporations, which constitute an important sector

of the community, the people of Massachusetts will be

deprived of a full debate on issues of public interest and

and their constitutionally recognized right to receive

information will be violated.

—— —

ARGUMENT

J.

Under The Traditional Standards Of Law.

This Case Is Not Moot

The doctrine of mootness is based upon the require-

ment of Article III §2 of the United States Consti-

tution, which precludes judicial review of abstract

questions and contrived disputes. Liner v. Jafco, Inc.,

37 U.S. 301 (1964). The Court has defined a case or

controversy as one which:

[Must be definite and concrete, touching the legal

relations of parties having adverse legal interests.

. + It must be a real and substantial controversy

admitting of specific relief through a decree of a

conclusive character, as distinguished from an

opinion advising what the law would be upon a

hypothetical statement of facts. Aetna Life Ins.

0. v. Haworth, 300 U.S. 227, 240-41 (1937).

The mootness doctrine merely requires that this case

or controversy requirement be met at each stage of

— review. U.S. v. Munsingwear, Inc., 340 U.S. 36

However, the right to present a case or controversy

cannot be defeated artificially by foeussing on short-

term activity while ignoring the long-term, recurring

nature of the abuse. Roe v. Wade, 410 U.S. 113 1973).

This Court has consistently thwarted attempts to use

strategically timed mootness arguments to avoid judi-

cial s-rutiny of important issues. Dunn v. Blumstein,

405 U.S. 330 (1972); Carroll v. President d Commis-

stoners, 393 U.S. 175 (1968).

In Southern Pacific Terminal Company v. Inter-

state Commerce Commission, 219 U.S. 498 (1911), the

4

Interstate Commerce Commission (ICC) issued an

order prohibiting Southern Pacifie for a period of two

years from giving a rate advantage to preferred cus-

tomers. The ICC order expired before the case reached

this Court. In noting the continuing nature of the

controversy, this Court stated,

The questions involved in the orders of the Inter-

state Commerce Commission are usually continu-

ing (as are manifestly those in the case at bar)

and their considerations ought not to be, as the

might be, defeated by short-term orders, 2

of repetition, yet evading review, and at one time

the Government and at another time the carriers,

have their right determined the Commission

without a chance of redress. (Emphasis added.)

219 U.S. at 515.

This capable of repetition, yet evading review“

standard for establishing a continuing case or contro-

versy has been summarized as having two elements:

(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or ex-

piration, and (2) there was a reasonable expectation

that the same complaining party would be subjected

to the same action again.“ Weinstein v. Bradford, 423

U.S. 147, 149 (1975) (per curiam).

Below is Chart A listing the indicia of the Article

III case or controversy requirements present in this

ease. This chart displays the factors in the present case

which support the continuing nature of the controversy.

5

INDICIA OF CASE OR CONTROVERSY

CHART A

Challenged Action Was In Its Duration

Too Short To Be Fully Litigated

1. 1 — — 3. Even stipulated facts did

ve action ref- t suffici i

: — — ö ently expedite

2. 43-56 month average delay

in Massachusets courts.

Reasonable Expectations That The

Same Complaining Parties

Would Be Subject To Action Again

1. Massachusetts statute is 6. Attorney General will

in full effect. prosecute plaintiffs if

2. Massachusetts Supreme views on GIT are made

Court has upheld statute. known.

3. GIT referendum has been 7. GIT will materially affect

on ballot four times. corporate assets.

4. GIT Bill i 8. Plaintiffs desire to make

fore a" 8 views on GIT widely

known.

5. Four intiffs o

GIT 1 19725 all 22 4 — General will not

posed GIT in 1976. nge position.

When presented in summary fashion, it is obvious

that the Massachusetts statute will have a continuing

broad chilling effect on the right of the plaintiffs to

peak out on issues of publie importance. Nor is this

chilling effect limited to the plaintiffs. The statute pro-

vides that “. . . no business corporation incorporated

under the laws of or doing business in the Common-

wealth and no officer or agent acting in behalf of any

corporation . . . shall directly or indirectly . . . [expend

funds] . . . influencing or affecting the vote on any

6

question submitted to the voters . . .” Mass. Gen. Laws

c.55 § 8. (Emphasis added.)

The very breadth of the statute makes mootness im-

possible. The right of both national and local corporate

businesses to inform the Massachusetts public of their

perspective on important issues is jeopardized by this

ill-conceived attempt to isolate the business sector of

the American system from the political process. In ad-

dition, the right of Massachusetts voters to hear diverse

opinions on an issue go that they can be fully informed

before casting their ballots shall be severely hampered.

IL

Mootness Doctrine Should Be Narrowly Applied In Cases

- Involving Fundamental Freedoms

The first amendment affords the broadest protection

to the discussion of public issues:

The protection given speech and press was fash-

ioned to assure rer r —

the bringing about of political and social e .

detent by the people. Roth v. L. S., 354 U.S. 476,

).

484 (195

Where there is regulation of the content of speech,

there is a ... need for absolute neutrality by the gov-

ernment; its regulation of communication may not be

affected by sympathy or hostility for the point of view

being expressed by the communicator,’’ Young v. Amer-

ican Mini Theaters, Inc., 427 U.S. 50, 67 (1976).

When applied in the area of free expression, the

mootness doctrine is particularly inappropriate. Free

speech limitations, such as those imposed by the Massa-

chusetts statute, not enly curtail the rights of the plain-

tiffs who wish to be heard but also limit the public’s

—— —

7

right to receive information; a right which has been

accorded the strongest legal protection. “[ Freedom of

speech and the press] embraces the right to distribute

literature . . and necessarily protects the right to

receive it.” Martin v. City of Struthers, 319 U.S. 141,

143 (1943). Its importance is such that, at times, courts

have subordinated the more limited First Amendment

rights of certain other parties to the public’s right to

be informed; e. g., Columbia Broadcasting System, Inc.

v. Democratic National Committee, 412 U.S. 94, 101-02

(1973) ; Red Lion Broadcasting Co. v. FCC, 395 US.

367, 390 (1969).

Freedom of speech presupposes a willing speaker.

But where a speaker exists, as is the case here, the

protection afforded is to the communication, to its

source and to its recipients both. This is clear from

the decided cases. . . If there is a right to advertise,

there is a reciprocal right to receive the advertis-

ing, and it may be asserted by these appellees. Vir-

ginia State Board of Pharmacy v. Virginia Citi-

zens Consumer Council, Inc., 425 U.S. 748, 756-57

(1976). (Footnotes omitted.)

When the right of political speech is affected, the

mootness doctrine has been narrowly construed. In

election cases, where speech is paramount, this court

has limited the application of the mootness doctrine.

In Storer v. Brown, 415 U.S. 724, 737, n.8 (1974),

the impact of past elections was discussed.

The 1972 election is long over, and no effective

relief can be provided to the candidates or voters,

but this case is not moot, since the issues properly

presented, and their effects on independent candi—

dacies, will persist as the California statutes are

applied in future elections. This is, therefore, a

8

case where the controversy is capable of repeti-

tion, yet evading review.“ [Citations omitted.]

The capable of repetition, yet evading review“

doctrine, in the context of election cases, is appro-

priate when there are as applied”’ challenges as

well as in the more typical case involving only

facial attacks. The construction of the statute, an

understanding of its operation and possible con-

stitutional limits on its application, will have the

effect of simplifying future challenges, thus in-

creasing the likelihood that timely filed cases can

be adjucated before an election is held.

Although the referendum on the Graduated Income

Tax is over, the statute lives on, chilling the speech of

all corporations believed to be within the ambit of the

Massachusetts statute. This limitation of free expres-

sion extends to all corporations doing business“ in

Massachusetts. To allow a strained interpretation of

the mootness doctrine to terminate judicial review of

this frontal assault on freedom of expression will have

a nationwide impact and serve to isolate the business

sector of the American economy from the publie.

* —— 22 *

9

CONCLUSION

. For the reasons stated above, Pacific Legal Founda-

tion urges the Court to reach the merits of this case.

Respectfully submitted,

Ronatp A. ZuMBRUN

Rosert K. Best

JoHN H. Fix DLE

Pactric LEGAL Founpation

455 Capitol Mall, Suite 465

Sacramento, California 95814

ALBERT Ferri, In.

2 ore

ACIFIC LEGAL FounpDaATION

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Counsel for Amicus Curiae

Pacific

Sam KazmMan acific Legal Foundation

Pactric Lear Founpatio>

1990 M Street, N.W. 12

Suite 550

Washington, D.C. 20036

Of Counsel