# Petition — Frissell v. Rizzo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0360%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 841 ## Text Supreme Court U.S FILED JUN 20 1979 IN THE MICHAEL RODAK, JR., CLERK Supreme Court of the United States October Term, 1978 -1890 LEE FRISSELL, oe Petitioner, Vv. FRANK L. RIZZO, Mayor of the City of Philadelphia, and SHELDON L. ALBERT, City Solicitor of the City of Philadelphia, and CITY OF PHILADELPHIA, PENNSYLVANIA, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. . CLETUS P. LYMAN RICHARD A. ASH LYMAN & ASH 1612 Latimer Street Philadelphia, PA 19103 Attorneys for Petitioner BATAVIA TIMES, APPELLATE COURT PRINTERS ~D EDWARD ©. SHANNON CASTERA PENNSYLVANIA REPRESENTATIVE THE PLAZA, SUITE 237, PHILADELPHIA, PA 18103 PHONE: (218) 568-7763 INDEX. Page eee A Uw ek is CRAs che dses se ces’ 2 RE SLO Ga a 2 EE ES ee 2 Constitutional and Statutory Provisions Involved ..... 3 Statement of the Case........ ee aris avis bel’ R vg Mad a o% create a ~ of increased city . Philad. ‘ ng Auth., supra, and L z 7 supra, both suggest that some risk of increased re is rae ei = Al6 Opinion of the Court of Appeals. Even if Frissell could claim standing under state law, we do not think that would help him in this suit, since it was brought in a federal trial court. There has been con- siderable dispute whether standing to raise a federal ques- tion in state court is a matter of federal or state law. See Flast v. Cohen, 392 U.S. 83, 132 n.22 (Harlan, J., dissent- ing) (federal); Freund, in E. Cahn, Supreme Court and Supreme Law 35 (1954); contra, G. Gunther, Constitu- tional Law 1573-74 (9th ed. 1975). On direct review the Supreme Court has on occasion considered, although not without dispute, the merits of cases in which standing was based on state law rules. Everson v. Bd. of Education, 330 U.S. 1 (1947); Bradfield v. Roberts, 175 U.S. 291 (1899); cf. Richardson v. Ramirez, 418 U.S. 24, 36-40 (1974) (mootness). But see, Doremus v. Bd. of Education, 342 U.S. 429 (1952) ; Tileston v. Ullman, 318 U.S. 44 (1943). In a federal trial court, however, standing to sue is deter- mined by federal law. Baker v. Carr, supra, 369 U.S. at 204. Petitioner’s reliance on Flast v. Cohen, 392 U.S. 83 (1968), as the source of a federal law taxpayer cause of action is misplaced. Flast, it is true, permits state or municipal taxpayer suits in federal court, e.g., Public Funds for Public Schools v. Byrne, No. 78-1218, at 5 n.3 (3d Cir. Jan. 12, 1979), but only to challenge expenditures in viola- tion of those constitutional provisions which are recog- nized as specific limitations upon state power to tax and spend. Assuming arguendo that the plaintiff could show an expenditure—and hence injury—in this case, he has alleged no conduct in violation of a specific constitutional limitation on the spending power. United States v. Rich- ardson, 418 U.S. 166 (1974), makes this clear. In Richard- son the plaintiffs contended that those provisions of the Central Intelligence Act which provided that CIA expendi- tures were not to be made public violated the constitutional requirement that Congress publish a regular statement and account. Art. I, §9, cl. 7. A requirement of a regular ME Al7 Opinion of the Court of Appeals. statement of expenditures would appear to be a relatively specific limitation upon the government’s exercise of the spending power. The Supreme Court, however, held other- wise. 418 U.S. at 175. In the wake of the Richardson holding the claim that the general First Amendment guar- antees of free press and free speech fall within the class of specific limitations satisfying the Mlast test is without merit." In the absence of an alternate source of taxpayer standing appellant’s claim was properly denied. IV. ConcLusion Where, as here, a plaintiff seeks relief for the violation of First Amendment rights of a newspaper, and the com- plaint fails to allege either that the newspaper has actually been inhibited in its reporting of the news, thus injuring its readers’ right to hear, or that it is in some manner inhibited from asserting its own First Amendment rights, we hold that the complaint may be dismissed for failure to state a claim upon which relief can be granted. The judg- ment of the district court will be affirmed. 9. Moreover, a central, if unarticulated justification for the grant of tax- payer standing in Flast was the feared lack of other suitable claimants capable of raising the Establishment Clause claim against expenditures for non-public education. See United States v. Richardson, supra, 418 U.S. at 195 n17 (Powell, J., concurring) ; 13 C. Wright, A. Miller & E. Cooper, Federal inn and Procedure § 3531 at 195 (1975). That rationale is not available ere. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit Als Order of the District Court Dismissing the Complaint IN THE UNITED STATES DISTRICT COURT For the Eastern District of Pennsylvania LEE FRISSELL, Plaintiff, v. FRANK L. RIZZO, Mayor of the City of Philadelphia, and SHELDON L. ALBERT, City Solicitor of the City of Philadelphia and CITY OF PHILADELPHIA, PENNSYLVANIA, Defendants. No. 78-2019 Civil Action Filed June 22, 1978 AND NOW, this 22nd day of June, 1978, after hearing and upon review of the complaint and after consideration of the briefs and arguments of counsel, it is hereby ORDERED that the complaint be DISMISSED for the reason that plain- tiff has no standing to bring this action. BY THE COURT: JOSEPH L. McGLYNN, §SR., J. Entered 6/23/78 (Illegible) Al9 Plaintiff's Motion for Preliminary Injunction IN THE UNITED STATES DISTRICT COURT For the Eastern District of Pennsylvania LEE FRISSELL, Plaintiff, v. FRANK L. RIZZO, ET AL., Defendants. Civil Action No. 78-2019 Plaintiff hereby moves the Court for grant of a preliminary injunction, restraining defendants from denying newspapers customary public advertising as a reprisal for publication of news articles deemed offensive by defendant Frank L. Rizzo. The facts upon which this motion is based are set forth in the verified complaint and in the attached newspaper article. /s/ RICHARD A. ASH, Richard A. Ash, LYMAN & ASH, 1612 Latimer Street, Philadelphia, PA 19103, Attorney for Plaintiff. Exhibit to Plaintiff's Motion for Preliminary Injunction. Che Evening Bulletin Tuesday une 13 1978 A20 Rizzo Pulls Legal Ads Out of Bulletin By DAVID RUNKEL Ané A.W. GEISELMAN JR. Of The Bulletin Staff Mayor Rizzo sa:d ioday he has in- structed city officals to withhold city legal advertisements from the Bulle- tin ‘forever,’ then added: ‘‘or as long as I'm mayor.” “You have to hit them in the pocket- book where it hurts,” he said at an ~ impromptu news conference. The move, he said, was the result of a story which appeared im the Sunday Bulletin reperting that negotiations were in progress to offer cancer insur- ance to city employes. The local rep- resentative of the insurance firm. American Family Life Assurance Co. of Columbus, Ga., is Alfred E. Sanith O'Neill, who 1s spearheading a dnve to change the City Charter so Mayor Rizzo can seek a third term Bulletin officials said this afternoon that city advertising billings with the Bulletin total $280,000 a year, and that sheriff's sales advertising accounts for another $190,000 City Geliciter Sheldon L. Albert satd he “will certainly pass on the Admin- istration's polcy to the sheriff and | have no doubt that he will go along with pulling sheriff's sales ads out of the Bulletin.” He pointed out that only ads in which the mayor has the discretion to Cae are ie 5) et See Se Se For instance, he said, there is a city Please Turn to Poge 5 : A2l Exhibit to Plaintiff's Motion for Preliminary Injunction. Contineed Prem First Pege wdinaace which requires ‘nat pro- ‘used City ordinances be advertised in ne three city newspapers of largest : ‘wreulation, so the mayor could not wll those ads from the Bulletin. Earlier today, the mayor said he would immediately fire any person in ats Administration who negotiated with the cancer-insurance firm repre- tented by third-term charter-support- > O'Neill. Rizzo said he remains convinced, however, tha’ no such negotiations be- ween his Administration and O'Neil! ver took place. The Bulletin's Sunday story re- veated that a top official of American Family Life Assurance Co. had said thal negotiations were in progress to offer cancer insurance to cily employes Policy premiums could be paid through a payroll-deduction plan, ac- cording to R. Lee Anderson, company vice president. Rizzo said he understood that as a resalt of an investigation by City So- ‘ citor Albert there had been some dis- cussion on selling the cancer insur- ance © members of the city employes credit union. He pointed out that the credit umion 1s not a city government agency. **‘Name the person,”’ Rizzo said at a morning news cunference today (0 a Bulletin reporter ‘If anyone in my Administration negotiated with this company, he will be fired before you can say Yankee Doodle Dandy. “You give me the names and I'll fire them." Rizzo said the Bulletin story is “helping me change my mind’ about running for a third term “When | made that statement at Whitman, | was sincere,"’ the mayor said concerning his March speech at Whitman Park during which he an- nounced he would not seek a charter change nor another term as mayor. Rizzo added: “In their (the Bulletin'’s) desire to destroy me, they are making me con- sider changing my mind. | am vacil- lating.” Noting that ‘‘a lot of people are de- pending on ‘me,"’ the mayor said the major issues before Philadelphia now are public housing, quota systems (in minority hirings and educational admissions) and the death penalty. Rizzo indicated he was a strong pro- ponent of the death penalty and an op- ponent of quota systems and that Other potential candidates did not share his views on these issues. At his press conference, the mayor also accused Bulletin managing editor George Kentera of “arrogance.” ; “i never spoke with enytedy! with such arrogance,” Rizzo suid. “| tried to tell him that was u bad story; that it Was not a true story, and | asked him to look into it.’ He said Kentera did not respond to his criticism. “If Thad exhibited that arrogance. ! would deserve to be voted out of office,"’ Rizzo said. ‘I understand now why the papers do not have any credi- bility." Kentera issued this reply: ‘‘{n our telephone discussion | treated the mayor with the courtesy and attention to which he is entitled as the elected representative of the people of Phila- delphia. I shall cuntinue to do that. “But the mayor is mistaken when he suys | did nut respond to his com- plaint. | told him, and | tuld his city solicitor, Mr. Albert, that the Bulletin responsible. I continue to hold that opinion."’ The report in the Sunday Bulletin said O'Neill was laying plans to sefl cancer insurance to city employes through a city payroli-deduction pian. ° Rizzo refused to answer questions’ about O'Neill before the story wat published resporsible, I continue to hold that | O'Neill, who has said & sense of civ. ic interest is his Only motive for pro- moting a City Charter change to allow Rizzo to seek a third term, has not re- sponded to the Bulletin story — either before its publication or afterwards. Anderson told the Bulletin last week that American Family Life was nego- tating with the City of Philadeiphia to offer the firm's cancer insurance to a employes on a payrolt-deduction “A ’ Anderson twice reconfirmed his statement in the wake of the Bulletin's Sunday report In addition, a Philadelphia insur- ance executive told the Bulletin O'Neill approached him about three weeks ago and said Rizzo had given the green light to a cancer-insurance offering to.city employes. That source also reconfirmed the accuracy of the Sunday Bulletin report after Rizzo's denials. Deputy City Commissioner Michael McAllister said today O'Neill ap proached him on Friday with a “prop- osition’’ of marketing American Farn- _tly Life cancer insurance to city em- ployes through the Philadelphia City Employes Federal Credit Union of _ which McAllister is an officer. McAllister said O'Neill told him, “We've been to the city Finance De- partment and they've (turned us down." McAllister said after a review of O'Neill's proposal. the credit union algo turned ()'Neill down. A22 The Complaint IN THE UNITED STATES DISTRICT COURT For the Eastern District of Pennsylvania LEE FRISSELL, Plaintiff, oe FRANK L. RIZZO, Mayor of the City of Philadelphia, JM ‘and SHELDON L. ALBERT, City Solicitor of the City of Philadelphia, and CITY OF PHILADELPHIA, PENNSYLVANIA, Defendants. Civil Action No. 78-2019 1. This action arises under the Civil Rights Act, Title 42 U.S.C. § 1983, which provides redress for deprivation of Constitutionally protected rights under color of state law. 2. This Court has jurisdiction under Title 28 U.S.C. § 1343, which provides jurisdiction to district courts to redress deprivation under color of state law of Constitutionally protected rights. A23 The Complaint. Identity of the Parties 3. Plaintiff, Lee Frissell, is an individual residing in the City of Philadelphia (‘‘the City’), in the Commonwealth of Pennsylvania. He is a registered voter and taxpayer in the City. 4. Defendant the City is a corporate and political body and a municipal subdivision of the Commonwealth of Penn- sylvania. It has about two million residents and is the fourth largest city in the United States. 5. Defendant Frank L. Rizzo is the Mayor of Philadelphia. 6. Defendant Sheldon L. Albert is the City Solicitor of Philadelphia. In that capacity, he serves as chief legal adviser to the City and its various officials. Background of the Litigation 7. The Evening Bulletin (“‘the Bulletin”) is a newspaper of general circulation published daily in Philadelphia and widely circulated within Philadelphia and its environs. It is one of the two most widely circulated newspapers in Philadelphia. 8. Early in June, 1978, the Bulletin published certain news articles that Mayor Rizzo deemed offensive. Acts Complained of 9. In direct reprisal for the Bulletin’s publication of these articles, Mayor Rizzo promulgated a policy whereby the Bulletin is to be deprived of certain public advertisements that are customarily run in this newspaper and paid for out of the public funds. The value of such advertising totals about $280,000.00 on an annual basis. A24 The Complaint. 10. Mayor Rizzo called a public press conference to an- nounce his policy and its purpose of hurting the Bulletin in its pocketbook. He also said that he would recommend that the Sheriff of Philadelphia County carry out a similar policy with respect to public advertising under his control. 11. Defendant Albert aided and abetted the Mayor in the formulation and impiementation of these policies. He has further stated that he will recommend that the Sheriff of Philadelphia County, to whom he is a legal adviser, carry out similar policies. 12. The effect of defendants’ activities is to chill and inhibit freedom of the press and freedom of expression in the City, to the detriment of plaintiff and other citizens. WHEREFORE, on the basis of the foregoing, it is request- ed that the Court enter judgment granting the following relief: (a). Preliminarily and permanently enjoining defendants from denying newspapers customary public advertising as a reprisal for publication of news articles deemed offensive by the Mayor; and from taking other reprisals against the press in their official capacities; (b). Granting such other and further relief as is warranted by the circumstances; (c). Awarding costs of suit and reasonable attorney’s fees. /s/ RICHARD A. ASH, Richard A. Ash, LYMAN & ASH, 1612 Latimer Street, Philadelphia, Pa. 19103, (215) 732-7040, Attorney for Plaintiff. _ i --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0360%3A1. Public record. Not legal advice.