Opposition — People Versus Porn v. Nixon

ee

2 eee tee

Office Supreme Court, U.S.

Pris 2

No.. 80-1720 WAY 18 1981:

IN THE ALEXANDER L. STEVAS,

Supreme Court of the Un

October Term, 1980.

PEOPLE VERSUS POPN (Profit of Richard Nixon), ef al.,

Petitioners,

vs.

RICHARD MILHOUS NIXON,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit.

BRIEF FOR RICHARD NIXON IN OPPOSITION.

ROBERT E. HINERFELD,

Counsel of Record,

RICHARD A. MURPHY,

DAVID ELSON,

MURPHY, THORNTON, HINERFELD

& CAHILL,

611 West Sixth Street,

Suite 1610,

Los Angeles, Calif. 90017,

(213) 624-9900,

HERBERT J. MILLER, JR.,

R. STAN MORTENSON,

MILLER, CASSIDY, LARROCA & LEWIN,

2555 **M"’ Street, N.W., Suite 500,

Washington, D.C. 20037,

(202) 293-6400,

Attorneys for Respondent

Richard Nixon.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

7.

i

Questions Presented.

1. (Assuming petitioners have not abandoned the issue

in the court of appeals), does a former President have a

right to remove a State court action to the district court

where the claim for relief asserted in the State court pur-

portedly arises from the federal officer’s breach of fiduciary

duty to federal taxpayers in violation of his federal Consti-

tutional oath of office?

2. Do federal citizens and taxpayers have standing to

sue a former President derivatively for the financial benefit

of the United States on a claim of breach of fiduciary duty

where ‘the complaint: (i) fails to allege a claim-related

violation of the taxing and spending power, (ii) does not

disclose a prior request that the United States assert the

claim directly in its own name, and (iii) fails to join the

Attorney General as a party?

ii

TABLE OF CONTENTS

Page

Costin: PCCM soi ss i855. 5 onic ek cedinpes db tidemeten 1

I eel eckis cas catduesoindcdnesccesonecnyhnescebeeieieeaeen l

SETI. Svocvecctnnsiscnasahns ¥idealoneasbaeiieamanes |

IIE 2 <A scot vb ved beh nees sip muuhis Men pnReenaeaeere” 2

NI Aecdcpnnpnctcroscedseccdctinsshueeiiemenecanenaaleanh 2

PRION is cinccivannansinnondihsinssangtiegtcn ted uasern seein 5

1. Petitioners Abandoned Their Attack Upon the

Removal of the State Action to the District Court

When They Failed to Specify in Their Opening

Brief in the Ninth Circuit Any Error in the District

Court’s Denial of Petitioners’ Motion to Remand

a Ce 00) BI I hes nv bine todtny Sawouicdecean

Respondent Had Two Statutory Bases for Re-

moval of This Federal Question Action: Remand

Wee. FIOOOTY OMICG i. occ ceeesecss....cposgnnee?

Petitioners Lack Standing to Sue .................

Independent Grounds to Sustain the Dis-

IIE isis ois avec coud sce indnknnkhs to dgubebeabenees

CO ees ig iidc vc cccaccdvce pall oibsieinnds ee

ili

TABLE OF AUTHORITIES

Cases Page

Bell v. Combined Registry Co., 536 F.2d 164 (7th Cir.

SPD iii dade awe asite van ncdinessnusch Hepp teabunveb¥ass 12

Bell v. Hood, 327 U.S. 678, 6@ S.Ct. 773 (1946) .... 7

California Bankers Association v. Schultz, 416 U.S. 21,

Se SE 0S WME esti aninn ski sonsncodsaponebavebee un 9

Camero v. Kostos, 253 F.Supp. 331 (D.N.J. 1966) .. 7

Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468

RES hu Ned NU Y his Cokddadanddbbiun es cthusbasadivesacauedce 6

Duke Power Co. v. Carolina Environ. Study, 438 U.S.

Pilg ER ces ND CEPT Webaloccusecditicaca..-cccunsies 8

Flast v. Cohen, 392 U.S. 82, 88 S.Ct. 1942 (1968) .. 8

Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597

CR cette tatuuuai aay hccciha\ bares Cavecopodeieiesceheaii 8

Garcia v. United States, 421 F.2d 1213 (Sth Cir.

sd ie econ y ibaet shvdbadane cobs cancevabemnaee 1]

RUPEE daniss ob vnc vsevsnpeisd her ckdsconoaineecnansbhbapopnmghinn 10

Hackner v. Morgan, 130 F.2d 300 (2d Cir. 1942) .... 11

Helvering v. Pfeiffer, 302 U.S. 247, 58 S.Ct. 159

EREEN 555030 Ua Vala cis ocdoeda teaseeea i inebhhinvetaecestecs g

Jaffke v. Dunham, 352 U.S. 280, 77 S.Ct. 307

GINO cds sc avocdikesceabacdabils os cackcnsceseices eed pers 9

Jenkins v. The New York Times and H.R. Haldeman,

N.Y. Supr. Ct., No. 3106-78, S.D.N.Y. No. 78 Civ.

A RAE ERR Som AR RE ON ORI AID eis, Fy Cee 7

Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311

CRP ei tiche s hansdeubatine ch sedb see diusevs tsb iavcciles vaktes 6

New Statehouse, In re, 37 Atl. 2 (R.I. 1897) ..... 10, 11

Newman v. C.I.R., 222 F.2d 131 (9th Cir. 1955) .... 11

-%

iv

Page

Osborn v. Bank of the United States, 9 Wheat. 738, 6

Li RRR ROME) LckbcaCineddvicsesscadeadsucdscne™s 6,

Peck v. ‘Shell Oil Co., 142 F.2d 141 (9th Cir.

BOE sic Se iaigh ink is sci De caddns shies vacks sods cdapaecdsss

Price, Trustee v. Gurney, 324 U.S. 100, 65 S.Ct. 513

SRE Mig cicnlas sviakdhdcodeavenenatetanbenaattevtes aiudahs ees

Public Affairs Associates, Inc. v. Rickover, 268 F.Supp.

444 (D.C.D.C. 1967) (on remand from 369 U.S. 111,

ae ee ON adh ePqsa rca civadansesiecGgnragsbuksvocedayes

Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733

CRI ha ohare alas cccca tug ssk oe cbbebanaderiaselubcan

Schlesinger v. Reservists Committee to Stop the War,

418 U.S. 208, 94 S.Ct. 2925 (1974) ...............

Securities and Exchange Com. v. Chenery Corp., 318

U.S. 80, 63 S.Ct. 454 (1943) .......s..c cee ence eeeeeeee

Senate Select Com. on Pres. Campaign Activities v.

Nixon, 366 F.Supp. 51 (D.C.D.C. 1973) ............

Solomon v. Boschulte, 200 F.2d 482 (3d Cir.

ORR pace iiasb os wr thas Nash cannthice bigs ranbansas cs ovations

Stevens v. Loomis, 334 F.2d 775 (1st Cir. 1964) .....

Tryforos v. Iscarian Development Company, S.A., 518

F.2d 1258 (7th Cir. 1976), cert. den. sub nom. Manta

v. Tryforos, 423 U.S. 1091, 96 S.Ct. 887 (1976) ..

United States v. First Trust Company of Saint Paul, 251

F.2d 686 (8th Cir. 1958) ........... ‘sSaheptdarnetew dies

United States v. Richardson, 418 U.S. 166, 94 S.Ct.

BE i cagA SUN saan tein exababnwsabniibiyeds so iene

United States v. Silliman, 167 F.2d 607 (3d Cir. 1948),

cert. den., 335 U.S. 825, 69 S.Ct. 48 (1948) .......

United States v. Snepp, 444 U.S. 507, 100 S.Ct. 763

(1980), rehrg. den. 100 S.Ct. 1668 (1980) ..... 11,

7

10

9

12

j

i

Page

United States v. State of California, 332 U.S. 19, 67

DAR 1658 CIO) ocivcnc cc ivasttiacivgl pc geoaaatans 9

Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813

CR i ick ebr ds kdenkaneulinghtrnadhthd ry ceevnrvasenpie 7

Youakim v. Miller, 425 U.S. 231, 96 S.Ct. 1399

DUPE a ncsn cde nga wha sticeialt Maas > sna dédvndaamotimeiaens 6

Constitution

United States Constitution, Art. II, Sec. 1, Cl. 8 ...... 3

Rules

Federal Rules of Appellate Procedure, Rule

IE is oascdracrcdsnconeabvaseupnaeeysasabeens eee 6

Federal Rules of Appellate Procedure, Rule

pCR PR TS SNS ay ART Pry ORO y 2s NE 6

Federal Rules of Civil Procedure, Rule 19 .......... 2, 10

Federal Rules of Civil Procedure, Rule 33 .............. 2

Rules of the United States Court of Appeals for the

SRE AEE, MEME AO op sidseenndsscscseccendecdeanes l

Statutes

California Civil Code, Secs. 2228-2231 ................. 4

California Civil Code, Sec. 2234 ........cccsccccccccceces 4

California Civil Code, Secs. 2237-2238 ................. 4

New York Laws of 1977, Chap. 823, Sec. 632-a ..... 8

United States Code, Title 17, Sec. 101 .................. 12

United States Code, Title 17, Sec. 105 .................. 12

United States Code, Title 28, Sec. 511 .................. 9

United States Code, Title 28, Sec. 512 ..............000- 9

United States Code, Title 28, Sec. 514 .................. G

United States Code, Title 28, Sec. 515(a) ............... 9

United States Code, Title 28, Sec. 516 .................. 9

vi

Page

United States Code, Title 28, Sec. 519 .................. 9

United States Code, Title 28, Sec. 1254(1) ............. 2

United States Code, Title 28, Sec. 1331 ................ 6

United States Code, Title 28, Sec. 1441 ................ 6

United States Code, Title 28, Sec. 1442(a)(1) .......... 7

Textbooks

Bogert, G.G., and G.T., The Law of Trusts and Trustees

(26 OG; -29G5) SOC. ELT, BD. DG! os i ccescesccecscevesscss 11

1 Nimmer on Copyright, Sec. 2.11, pp. 2-157 to 2-158

SE ab dc ek tins dabusns@bdOer ao tueks ubdinacenics seaneEaboves 11

Restatement of the Law Trusts, Second, Sec. 2, p. 2

PR arene GthA satan decals eens ssebadiescsucesaesecs 11

1 Scott on Trusts (3d ed. 1967) Sec. 74 ................. 11

7 Witkin, B.E., Summary of California Law (8th ed.

EE Os By We IE. cicicncvnticctosensessvcsscoasased 11

7%

No. 80-1720

IN THE

Supreme Court of the United States

October Term, 1980.

PEOPLE VERSUS PorRN (Profit of Richard Nixon), et al.,

Petitioners,

vs.

RICHARD MILHOUS NIXON,

Respondent.

BRIEF FOR RICHARD NIXON

IN OPPOSITION.

Parties.

The parties to this case are correctly stated on the second

unnumbered page of the amended petition for writ of cer-

tiorari, received by the Clerk on 14 April 1981 and by

counsel for respondent on 21 April 1981.

Opinion Below.

The decision of the court of appeals, a memorandum

rather than an opinion (Amended Pet., p. 21), is unreported

(Rule 21(a), Ninth Circuit Rules).

pe, "Se

Jurisdiction.

The judgment of the court of appeals was entered on 5

December 1980. The jurisdiction of this Court is invoked

by petitioners under 28 U.S.C. §1254(1).'

Statement.

Petitioners, a nonprofit corporation and two individual

federal taxpayers, filed an action for money damages and

an accounting against the former President of the United

States in the superior court of the State of California for

the county of Santa Clara on 4 May 1978 (Amended Pet.,

pp. 22-32). The complaint sought relief in the name of the

federal treasury and not for the individual benefit of the

plaintiffs. On 13 July 1978, Mr. Nixon filed a timely petition

for removal of the case to the district court in San Francisco,

together with a bond on removal (Appellee’s Brief below,

p. 2).2 On 18 July 1978, Mr. Nixon moved in the district

court to dismiss the action on several grounds, including:

(i) lack of subject matter jurisdiction, (ii) failure to state a

claim upon which relief might be granted, and (iii) failure

to join a party under Rule 19, F.R.Civ.P.

Thereafter, petitioners moved in the district court for an

order remanding the action to the State court. After the cross

motions had been briefed and argued orally, the district

court (the late Hon. Albert C. Wollenberg) denied petition-

"By letter dated 21 April 1981, the Clerk has advised counsel for

respondent that the original petition was received by the Clerk on 5

March 1981 and returned to petitioners’ counsel because the petition

did not comply with Rule 33. An amended petition was received by the

Clerk on 14 April 1981. Respondent’s counsel in Los Angeles did not

receive the amended petition from petitioners’ counsel, or at all, until

21 April 1981.

The facts cited hereinbelow are taken from the Brief for Appellee

which was filed in the Ninth Circuit. A copy of that brief is being

lodged concurrently with the Clerk of this Court. The facts appear in

Mr. Nixon’s brief below at pages 1-7.

|

act Pe

ers’ motion to remand and granted Mr. Nixon’s motion to

dismiss (Amended Pet., pp. 17-20). Petitioners took a

timely appeal to the Ninth Circuit from the judgment of

dismissal. On 5 December 1980, the court of appeals af-

firmed the judgment of dismissal in an unpublished mem-

orandum decision (per Wright, Choy, and Ferguson, Circuit

Judges) (Amended Pet., p. 21).

In their opening brief in the Ninth Circuit, petitioners

failed to specify any error in respect to the district court’s

denial of petitioners’ motion to remand the action to the

State court.’

In their complaint, petitioners purport to sue for money

on behalf of all taxpayers, including themselves, who paid

taxes to the United States at any time after July, 1972. Their

claim sounds in tort — breach of fiduciary duty — arising

from an asserted trust and fiduciary relationship between

Mr. Nixon, in his former capacity as President of the United

_ States, and the taxpayers. The trust, petitioners allege, came

into being when Mr. Nixon ‘‘willingly and voluntarily took

the oath of office as President of the United States as pre-

scribed in Section 1, Clause 5 of Article II of the Consti-

tution of the United States.’’*

From that oath and the obligations attendant to the federal

office, petitioners claim that an express trust came into being

— with the former President as trustee and the federal tax-

*See generally: Appellant’s [sic] Opening Brief, etc., filed in the

Ninth Circuit, esp. at p. 1; Brief for Appellee, p. 7, fn. 3; and Appel-

lants’ Closing Brief, etc., pp. 8-10.

“Petitioners, doubtless, meant to refer to Art. II, §1, cl. 8, which

‘*Before he enter on the Execution of his Office, he shall take

the following Oath or Affirmation: — ‘1 do solemnly swear (or

affirm) that I will faithfully execute the Office of President of the

United States, and will to the best of my Ability, preserve, protect

and defend the Constitution of the United States.’ *’

sili

payers as beneficiaries — under the law of the State of

California (Calif. Civil Code, §§2228-2231, 2234, 2237-

2238). In alleged violation of that State-created trust rela-

tionship, petitioners contend, the former President con-

cealed from petitioners and other federal taxpayers ‘‘infor-

mation about such facts known to said defendants with re-

gard to Watergate and which have been subsequently, and

within three years last past, sold to certain television net-

works, promoters, producers, newspaper publishers, mag-

azine publishers, book publishers, dealers and distributors

and others for profit [in violation of California law].’’

(Amended Pet., pp. 27-28).

Petitioners seek an accounting of Mr. Nixon’s profits for

the benefit of the Treasury after an allowance therefrom for

petitioners’ lawyers’ fees in this case. In addition, petition-

ers seek punitive damages in an amount equal to 20% of

Mr. Nixon’s net worth.

7%

en om

ARGUMENT.

1. Petitioners Abandoned Their Attack Upon the

Removal of the State Action to the District Court

When They Failed to Specify in Their Opening Brief

in the Ninth Circuit Any Error in the District

Court’s Denial of Petitioners’ Motion to Remand

the Case to State Court.

The first question presented in the amended petition was

not properly preserved below in the direct appeal from the

judgment in the district court. Petitioners now urge that they

should have been allowed to pursue their complaint in the

California courts — that their claims were based solely upon

State law — and for that reason it was error for the district

court to have denied petitioners’ motion to remand (Amended

Pet., pp. 4-11). This issue is not available to petitioners in

this Court, because they failed to urge it in the Ninth Circuit

in their opening brief. Indeed, in the court of appeals, pe-

titioners did not rely exclusively on California law as their

source of the rules of primary conduct for respondent. In-

stead, they argued both federal and California law, implic-

itly conceding that their State court complaint presented a

federal question which justified removal.*

By eschewing the removal issue and limiting their appeal

below to the question of their standing to sue in federal

court as taxpayers, petitioners abandoned their right to urge

in this Court that the district court erred in refusing to remand

*Petitioners eS ay their opening brief in the Ninth Circuit with this

statement under the heading ‘ISSUES AND ARGUMENT”? (p. 1):

‘*Each of the Appellants is a beneficiary of the public trust and

a fiduciary duty now accepted as arising out of federal common

law, as well as statutory and case law of the State of California.”’

[italics added]

The burden of the os brief in the Ninth Circuit was that petitioners

had standing to sue Mr. Nixon in the district court. Petitioners no longer

pressed the removal/remand issue.

°%

iil

the case to the California superior court. Rules 28(a)(2) and

(a)(4), F.R.App.P.; Peck v. Shell Oil Co., 142 F.2d 141,

143 (9th Cir. 1944). Absent extraordinary circumstances

which do not appear in this record, this Court will not review

an issue which was not raised by the petitioners in the court

below. Lawn v. United States, 355 U.S. 339, 362 n. 16,

78 S.Ct. 311, 324 n. 16 (1958). Cf. Youakim vy. Miller, 425

U.S. 231, 234, 96 S.Ct. 1399, 1401 (1976); Carlson v.

Green, 446 U.S. 14, 100 S.Ct. 1468, 1471 n. 2 (1980).

In view of the fact that the Ninth Circuit chose to speak

to the remand issue, we will address the question on the

merits.°

2. Respondent Had Two Statutory Bases for Removal

of This Federal Question Action: Remand Was

Properly Denied.

Cutting through the complaint’s irrelevant citations to the

statutory trust law of California — and without regard to

whether the action had been filed initially in federal court

or was removed there by the defendant — the complaint

presents a uniquely federal question: Whether the status of

the occupant of the office of President of the United States

and the incidents of the oath of that office, which is pre-

scribed by the Constitution of the United States, create a

derivative claim for money damages which may be enforced

in the courts by federal taxpayers for the benefit of the

federal Treasury? Such a federal question immediately trig-

gers the removal statute. 28 U.S.C. §§1331 and 1441;

Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed.

*The Ninth Circuit said (Amended Pet., p. 21):

‘*The denial of plaintiffs’ motion to remand was correct. The

ri A was absolute. Willingham v. Morgan, 395 U.S.

a Vos

>

Re, Oe

204 (1824); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773

(1946).

There is a second ground for removal on the facts alleged

in the complaint. Mr. Nixon is a former federal officer who

is being sued for tort allegedly committed during, and in

connection with, the execution of his former federal office.

In such circumstances, Congress has conferred jurisdiction

upon the district courts to accept removal of that action so

that present and former federal officers — and the Govern-

ment — will be assured of uniform interpretation of the

rules governing the performance of federal official duty. 28

U.S.C. §1442(a)(1); Willingham v. Morgan, 395 U.S. 402,

89 S.Ct. 1813 (1969); Camero v. Kostos, 253 F.Supp. 331,

334-335 (D.N.J. 1966).

Sa ee

Petitioners seemingly ignore the jurisdictional statutes and

contend, without legal authority, that removal should not

have been allowed, because petitioners want a California

court to adjudicate petitioners’ theory that the President of

the United States, acting in his official capacity, is regulated

by the disparate rules of primary conduct announced by the

50 States for trustees of express trusts (Amended Pet., pp. 4-

8). They do not explain why California’s version of the law

for private fiduciaries should have any more relevance to

this federal taxpayers’ claim than the law of any other State.

Nor do petitioners even attempt to describe a rational system

of choice of law rules which would allow a court to deter-

mie which State’s law would govern the official conduct

of the President of the United States.

Petitioners’ reliance on the trial court decision in New

York is entirely misplaced (Amended Pet., pp. 8-10).’ The

"Jenkins v. The New York Times and H.R. Haldeman, N.Y. Supr.

Ct., No. 3106-78; S.D.N.Y. No. 78 Civ. 1451.

7%

ues

gravamen of that complaint was a criminal conviction which

triggered application of a New York statute that did not

depend upon the defendant’s former status as a federal

officer: Section 632-a, Chapt. 823, Laws of 1977 (N.Y.)

(Amended Pet., pp. 46-49).

Further, petitioners’ assertion that their complaint did not

invoke federal question jurisdiction by its reference to the

Constitutional oath of office (Amended Pet., pp. 11-12) is

groundless. The gravamen of the complaint is the alleged

breach of a fiduciary duty to federal taxpayers which existed,

if at all, solely by reason of respondent’s former status as

President. If all reference to Mr. Nixon’s official position

were deleted from the complaint, there would be no col-

orable claim for relief stated in the pleading.

3. Petitioners Lack Standing to Sue.

The theory of standing which petitioners advocate is based

upon a misapprehension of the federal taxpayer standing-to-

sue cases.* Petitioners do not allege any wrongful exercise

by the Government of the taxing and spending power

(Amended Pet., pp. 12-13). Cf. Flast v. Cohen, supra, fn.

8. Rather, petitioners contend that the Government properly

expended funds to investigate Watergate. Petitioners want

respondent to reimburse the Treasury for those proper

expenditures.

Also, petitioners have not alleged any facts which might

invest them with the power as federal taxpayers and citizens

to sue derivately for the United States in order to seek money

damages for the federal Treasury. Decisions of the courts

"See, e.g., Flast v. Cohen, 392 U.S. 82, 88 S.Ct. 1942 (1968);

Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597 (1923); Schlesinger

v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925

(1974); United States v. Richardson, 418 U.S. 166, 170-179, 94 S.Ct.

2940, 2943-2948 (1974). See also: Duke Power Co. v. Carolina

Environ. Study, 438 U.S. 59, 98 S.Ct. 2620, 2633-2634 (1978).

7%

Mins

of California and Illinois involving suits brought by State

taxpayers are not illuminating on this issue (Amended Pet.,

pp. 5-6, 13-14). Until their action had been dismissed in

the district court (Amended Pet., pp. 17-20), petitioners not

only did not allege that they had requested the Attorney

General to bring this claim in the name of the United States

(Amended Pet., pp. 22-32), but also, petitioners did not

even request the Government to bring this claim until after

the civil action had been dismissed by the district court

(Amended Pet., pp. 33-35).

Federal taxpayers may not sue in tort derivatively for the

financial benefit of the United States. Congress has com-

mitted to the discretion of the Executive Branch — and in

particular to the Attorney General — the function of man-

aging and prosecuting all claims of the United States. See,

e.g., 28 U.S.C. $$511, 512, 514, 515(a), 516, and 519;

United States v. State of California, 332 U.S. 19, 26-27,

67 S.Ct. 1658, 1662-1663 (1947); United States v. Silliman,

167 F.2d 607, 610-611 (3d Cir. 1948), cert. den. 335 U.S.

825, 69 S.Ct. 48 (1948); Senate Select Com. on Pres. Cam-

paign Activities v. Nixon, 366 F.Supp. 51, 56 (D.C.D.C.

1973).

4. Independent Grounds to Sustain the Dismissal.

in addition to each of the jurisdictional failings, petition-

ers’ complaint was properly dismissed for other reasons

which the district court never had to reach.’

*On appeal, a judgment should be affirmed if it is supported by any

legal ground, w ther or not it was passed upon by the trial court.

California Bankers Association v. Schultz, 416 U.S. 21, 71, 94 S.Ct.

1494, 1522 (1974); Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. .

307, 308 (1957); Securities and Exchange Com. v. Chenery Corp., 318

U.S. 80, 88, 63 S.Ct. 454, 459 (1943); Helvering v. Pfeiffer, U.S.

247, 251, 58 S.Ct. 159, 160 (1937).

7%

ae ee

First, the Attorney General was an indispensable party

to this action who might have been joined under Rule 19,

F.R.Civ.P. Petitioners simply elected not to join him. As

the official charged by Congress with the duty to manage

and to prosecute all claims of the United States, it was

essential that the Attorney General be bound by the judgment

in this action. Cf. Ross v. Bernhard, 396 U.S. 531, 538,

90 S.Ct. 733, 738 (1970); Price, Trustee v. Gurney, 324

U.S. 100, 105, 65 S.Ct. 513, 516 (1945); Tryforos v. Icar-

ian Development Company, S.A., 518 F.2d 1258, 1264-

1265 (7th Cir. 1976), cert. den. sub nom. Manta v. Try-

foros, 423 U.S. 1091, 96 S.Ct. 887 (1976); Stevens v.

Loomis, 334 F.2d 775, 778 (1st Cir. 1964); Greenberg v.

Giannini, 140 F.2d 550, 554 (2d Cir. 1944) (per L. Hand,

C45"

Second, the complaint failed to state a claim upon which

relief could be granted. No facts were alleged that respon-

dent was a trustee, that a trust res existed at the time respon-

dent took the Presidential oath, or that any trust existed

while respondent occupied the office of President. In these

circumstances the metaphor of a public office being a public

trust will not suffice to apply trust law principles to a tax-

payer action for money. Cf. In re New Statehouse, 37 Atl.

"Learned Hand said in Greenberg v. Giannini, supra:

‘*As for Giannini’s motions to dismiss the complaints in both

actions, it has been settled law for over a century * * * that the

wronged corporation is an indispensable party to a shareholders’

action. * * * It is hornbook law that the claim is the corporation’s,

and for that reason the delinquent directors will not be protected

by any judgment which does not conclude the corporation. If they

succeed in defeating the action, other shareholders may bring

another; if the recovery is too little, the same thing is possible.’’

[citations omitted].

Petitioners are suing derivatively for the benefit of the

United States but the United States could not be concluded by the

ee eee case, because the United States was not brought before

court.

**.

2, 4 (R.I. 1897). See: A.L.I., Restatement of the Law,

Trusts, Second, §2, p. 2 (1959); op. cit. at pp. 10-11. The

funds which petitioners wish to subject to a trust did not

come into existence until after respondent left office (the

complaint alleges that the proceeds of the sale of the literary

and performance rights came into existence within three

years of the filing of the complaint — 4 May 1978 — which

was after respondent left office in August, 1974). Since

there was no trust res during the existence of the alleged

fiduciary relationship, there could have been no trust. See,

e.g., B.E. Witkin, 7 Summary of California Law (8th ed.

1974), Trusts §20, at p. 5383; A.W. Scott, 1 Scott on Trusts

(3d ed. 1967), §74; G.G. and G.T. Bogert, The Law of

Trusts and Trustees (2d ed. 1965), §111, at p. 562. Accord:

Solomon v. Boschulte, 200 F.2d 482, 483 (3d Cir. 1952);

Garcia v. United States, 421 F.2d 1213, 1232 (Sth Cir.

1970); Hackner v. Morgan, 130 F.2d 300, 303 (2d Cir.

1942). Cf. Newman v. C.I.R., 222 F.2d 131, 135 (9th Cir.

1955).

Third, petitioners seek to expropriate respondent’s post-

employment literary property and performance rights through

the device of a breach of trust action. Historic facts are not

the subject of property. Facts cannot be owned. It is the

manifestation of ideas about facts which may be the subject

of intellectual property. M.B. Nimmer, 1 Nimmer on Copy-

right, §2.11, pp. 2-157 to 2-158 (1979). Absent a contract

thereon," neither the United States nor its taxpayers own

the fruits of the literary expression of a former federal officer

— even if his post-employment works concern his former

official duties. If the literary work was not created as a part

of the officer’s official duty — these post-resignation mem-

"Cf. United States v. Snepp, 444 U.S. 507, 100 S.Ct. 763 (1980),

rehrg. den. 100 S.Ct. 1668 (1980).

-%

Eas, ele

oirs clearly were not — then the Government has no rights

in the proceeds of the sale of such literary property. See,

e.g., United States v. First Trust Company of Saint Paul,

251 F.2d 686, 688 (8th Cir. 1958); Public Affairs Associ-

ates, Inc. v. Rickover, 268 F.Supp. 444, 448-449 (D.C.D.C.

1967) (on remand from 369 U.S. 111, 82 S.Ct. 580); Bell

v. Combined Registry Co., 536 F.2d 164, 168-169 (7th Cir.

1976). See: §$101 and 105 of the Copyright Act (17 U.S.C.

§§101 and 105).

The gist of petitioners’ florid presentation is that the courts

may punish former federal officials for political acts by

expropriating their post-employment earnings from the writ-

ing of memoirs or the giving of lectures. '* Before former

federal officers are to be subjected to damage actions at the

whim of federal taxpayers who attack the content of books

which politicians write, there will have to be considerable

change in contemporary notions of the First Amendment

and in the laws defining the Government’s rights in the

literary works of former federal officers.

"Why else would petitioners end their brief with the reference to the

Snepp case (Amended Pet., p. 16) — the rule of which depends upon

the special secrecy contract which Central Intelligence Agency officers

made as g condition of employment in their covert official duties?

se

po

Conclusion.

For the reasons stated, this taxpayers’ action is entirely

without merit. The petition for writ of certiorari should be

denied.

Respectfully submitted,

ROBERT E. HINERFELD,

Counsel of Record,

RICHARD A. MURPHY,

DAVID ELSON,

MURPHY, THORNTON, HINERFELD

& CAHILL,

HERBERT J. MILLER, JR.,

R. STAN MORTENSON,

MILLER, CASSIDY, LARROCA & LEWIN,

Attorneys for Respondent

Richard Nixon.