Opposition — Sadlak v. Celeste

Supreme Court, U.S. ”

FILED

CASE NO, 82—980

‘VAN 10 1983

IN THE ALEXANDER L. STEVaAS

| CLERK

Supreme Court of the United States

OCTOBER TERM, 1982

ROBERT E. SADLAK,

Petitioner,

Vv.

ir oBERT S. Cetsre

VJAMES-A-RHOBES, Governor, State of Ohio,

ANTHONY J, CELEBREZZE, JR., Secretary of

State of Ohio; MAHONING COUNTY BOARD

OF ELECTIONS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

WILLIAM J. BROWN

Attorney General of Ohio

THOMAS V. MARTIN

Assistant Attorney General

State Office Tower

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-8240

VINCENT E, GILMARTIN

Attorneys for Respondents Prosecuting Attorney

James A, Rhodes, Mahoning County Court House

Governor, State of Ohio Youngstown, Ohio 44503

Anthony J. Celebrezze, Jr., (216) 747-2000

Secretary of State of Ohio

Mahoning County Board of

Elections.

TABLE OF CONTENTS

TABLE OF AUTHORITIES... ..... ccc eeeeeeeeees

STATEMENT OF FACTS.......seeeevececeseees

REASONS WHY THE WRIT SHOULD BE DENIED

THE DECISION BELOW RAISES NO

IMPORTANT QUESTION OF FEDERAL

TABLE OF AUTHORITIES

Cases:

American Party of Texas v. White,

415 U.S. 767 (1974)... cere eeencnvees

Commissioner of Internal Revenue v. Sunnen,

333 U.S. 591 (1948)... .. cece eee eeeees

Jackson v. Ogilvie,

325 F.Supp. 864 (N.D. Ill. E.D., 1971),

aff’d,, 403 U.S, 925 (1971)... . cece eens

Jenness v. Fortson,

403 U.S. 431 (1971)... cece ce cceevens

Mandel v. Bradley,

432 U.S. 173 (1977)... ccwccccvrscceves

Montana v. United States,

440 U.S. 147 (1979)... cree eereenence

Salera v. Tucker,

399 F.Supp. 1258 (E.D. Pa., 1975),

aff’d,, 424 U.S. 959 (1976)... 6. eee eee

Storer v. Brown,

415 U.S, 724 (1974)... cee ecrsveccvens

Miscellaneous Authorities:

1 Restatement 2d, Judgments Section 19 Comment a. . .4

9 Wright & Miller, 230 Section 2373...........

CASE NO. 82--980

IN THE

- SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

ROBERT E. SADLAK,

Petitioner,

Vv.

JAMES A, RHODES, Governor, State of Ohio,

ANTHONY J. CELEBREZZE, JR., Secretary of

State of Ohio; MAHONING COUNTY BOARD

OF ELECTIONS,

Respondents.

RESPONDENTS BRIEF IN OPPOSITION

Respondents James A. Rhodes, Governor of Ohio,

Anthony J. Celebrezze, Jr., Secretary of State of Ohio

and Mahoning County Board of Elections, respectfully

request that this Court deny the petition for writ of

certiorari, seeking review of the Sixth Circuit’s judgment

and opinion in this case.

STATEMENT OF FACTS

Petitioner instituted suit against the Governor, the

Secretary of State and the Board of Elections of Mahoning

County challenging the validity of Section 3513.257 of

the Ohio Revised Code. The pertinent portion of that

section is set forth inthe Petition. The section governs

the number of signatures required of an independent

candidate for office. Petitioner alleged that he wished

to become an independent candidate for the office of

United States Representative. He claimed that the

statute discriminated against independent candidates by

requiring them to obtain a greater number of signatures

than was required of candidates for party nominations.

Petitioner had instituted two previous actions

against the same defendants challenging the validity of

that statute on the same grounds, Both actions had been

dismissed for the failure of petitioner to prosecute.

Petitioner instituted the first action in the United

States District Court for the Northern District of Ohio,

Eastern Division on April 9, 1976, claiming that he

wished to become an independent candidate for Congress

from the Nineteenth Congressiona! District in the 1976

General Election.

The parties agreed that the case would be tried to

the court upon a stipulation of facts and briefs. They

also agreed upon the following briefing schedule: The

brief of the plaintiff was to be filed twenty days after the

filing of the stipulation of facts. The brief of the defen-

dants was to be filed twenty days after receipt of the

plaintiff's brief.

The stipulation of facts was filed April 22, 1977.

Included in the stipulation was the fact that fifteen

independent candidates for Cor-gress qualified for the

ballot in the general election of 1976.

As of May 7, 1979, over two years later, the peti-

tioner had still not filed his brief. On that date, the court

dismissed the action, without prejudice, for failure of

prosecution.

On March 5, 1980, the petitioner instituted a second

action in the same court against the same defendants

attacking the validity of the same statute on the sdme

grounds. On April 1, 1980, the defendants filed a motion

to dismiss. The local rules require a response to such a

motion within ten days.

Petitioner did not respond to the motion. On June

24, 1980, the court dismissed the action with prejudice,

for failure to prosecute. The order of dismissal is set

forth at Appendix A7 to the Petition.

On January 4, 1982, petitioner filed a third action

in the same court against the same defendants attacking

the same statute on the same grounds. The court dis-

missed the action on January 24, 1982. It stated that it

is a fundamental principle in the law that a dismissal

with prejudice serves as an adjudication on the merits

which bars another suit by the same plaintiff against the

same defendants on the same issues. The order of

dismissal is set forth at Appendix A4 to the Petition.

On October 15, 1982, the judgment was affirmed by

the Court of Appeals for the Sixth Circuit. The court

agreed with the lower court that the action was barred by

the doctrine of res judicata. It also found that the under-

lying claim was without merit. The order is set forth at

Appendix A1 to the Petition.

REASON WHY THE WRIT SHOULD BE DENIED

THE DECISION BELOW RAISES NO

IMPORTANT QUESTION OF FEDERAL

LAW

Petitioner is unable to present any important

question of federal law for review. The court below

merely applied the doctrine of res judicata. It is not

disputed that the previous suit instituted by petitioner

was dismissed with prejudice. Such a dismissal bars a

subsequent action between the same parties on the same

claim. 1 Restatement 2d, Judgments Section 19

Comment a; 9 Wright & Miiier, 230 Section 2373.

Petitioner’s reliance upon Commissioner of Internal

Revenue v. Sunnen, 333 U.S. 591 (1948) is misplaced.

In that case this Court declined to give preclusive effect

to the previous judgment because there had been a

significant change in the controlling legal principles.

Id. at 599. See also Montana v. United States, 440 U.S.

147, 161 (1979).

Petitioner can not show such a change in the appli-

cable legal principles governing his claim. In fact those

principles foreclose his claim.

The sole basis for petitioner’s claim of discrimina-

tion is that independent candidates are required to obtain

a greater number of signatures than party candidates. The

identical claim was raised and rejected in Jackson v.

Ogilvie, 325 F.Supp. 864 (N.D. Ill. E.D., 1971), aff'd,

403 U.S. 925 (1971).

There are obvious differences between independent

and party candidates. An independent candidate who

obtains the required number of signatures is assured of a

place on the bailot in the general election. A party

candidate is not. If a party candidate obtains the

required number of signatures it only assures him a place

on the primary ballot. He must win the primary elec-

tion to appear on the bailot in the general election. /d.

325 F.Supp. at 868; Sa/era v. Tucker, 399 F.Supp.

1258, 1266 (E.D. Pa., 1975), aff’d., 424 U.S. 959 (1976).

Ohio has recognized these differences and has

provided different routes to the ballot. This is permissi-

ble. ‘Sometimes the grossest discrimination can be in

treating things that are different as though they were

exactly alike’. Jenness v. Fortson, 403 U.S. 431, 442

(1971); American Party of Texas v. White, 415 U.S.

767, 981 n.13 (1974).

In addition this Court has held that a signature

requirement for independent candidates for federal

office is permissible so long as a reasonably diligent

candidate could be expected to satisfy it. Storer v.

Brown, 415 U.S. 724, 742 (1974); Mandel v. Bradley,

432 U.S. 173, 1977 (1977). The stipulation filed in the

District Court shows that independent candidates for

Congress in Ohio are readily able to satisfy that require-

ment.

CONCLUSION

For these reasons the petition for writ of certiorari

should be denied.

Respectfully submitted,

WILLIAM J. BROWN

Attorney General of Ohio

THOMAS V. MARTIN

Assistant Attorney General

State Office Tower

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-8240

VINCENT E. GILMARTIN

Prosecuting Attorney

Mahoning County Court House

Youngstown, Ohio 44503

(216) 747-2000

Attorneys for Respondents

James A. Rhodes,

Governor, State of Ohio

Anthony J. Celebrezze, Jr.,

Secretary of State of Ohio

Mahoning County Board

of Elections.

CERTIFICATE OF SERVICE

| hereby certify that a copy of the Respondents

Brief in Opposition has been mailed via the United

States first class mail service, postage prepaid, to Albert

S. Rakas, 1573 Bonita [Jrive, Akron, Ohio 44313 and

Kathleen S. Aynes, P.O. Box 143, Twinsburg, Ohio

44087, Attorneys for Petitioner, this day

of January, 1983.

THOMAS V. MARTIN

Assistant Attorney General