Motion — McIntyre v. Ohio Elections Comm'n

SUPREME COURT OF THE UNITED STATES

October Term, 1993

MARGARET MCINTYRE,

Petitioner,

v.

OHIO ELECTIONS COMMISSION,

Respondent.

RESPONDENT OHIO ELECTIONS COMMISSION’S

MOTION TO DISMISS UPON SUGGESTION OF DEATH

OF PETITIONER MARGARET MCINTYRE

LEE FISHER

Attorney General of Ohio

ANDREW I. SUTTER

Counsel of Record

Assistant Attorney General -

30 E. Broad Street, 15th Floor

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent, Ohio

Elections Commission

Rule 35.1:

In the event a party dies after filing a . . . petition

for a writ of certiorari, the authorized

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After learning of Petitioner's death, counsel for

Respondent immediately contacted the members of the Ohio

Elections Commission and inquired whether they would seek to

pursue this case, and the collection of the fine imposed on

Petitioner, any further. In light of the fact that the only matter at

issue in this case was the legality of Petitioner's conduct and the

Propriety of the fine imposed for what were adjudged to be

violations of Ohio law, the Commission members concluded that

to pursue collection from Ms. McIntyre’s estate would be certainly

counsel for Respondent to inform this Court that no further

attempts would be made either to pursue this case or to collect the

fine imposed.

In light of the Commission’s position, it appears that rather

than permitting a representative to be substituted for Petitioner in

this case, this action has become moot and should be dismissed.

See, e.g., American Tobacco Co. v. United States, 328 U.S. 781,

815 n.11 (1946) (petition of certiorari dismissed upon death of

petitioner who was seeking relief from fine imposed for violation

of the Sherman Act). This appears to be the Court’s standard

Practice in cases involving punishments imposed for alleged

violations of law upon the death of the individual. See, é.g.,

United States v. Green, __ U.S. —,» 113 S. Ct. 1835 (1993)

(certiorari dismissed); Mintzes y. Buchanan, 471 U.S. 154 (1985)

(same); Hampton vy. Ditty, 414 U.S. 885 (1973) (same). By

contrast, the Court permits substitution and continues a pending

case where the deceased party was seeking compensatory damages

and any such right or obligation would survive the party's death.

See, e.g., Farmer v. Carpenters, 430 U.S. 290 (1977). Such is not

the case here.

In addition, this case cannot properly be considered to fall

within the exception to mootness for situations that are "capable of

repetition, yet evading review." This is not a situation where there

exists “a reasonable expectation that the same complaining party

would be subjected to the same action again.” Weinstein vy.

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Bradford, 423 U.S. 147, 149 (1974). Nor is it a potentially

recurring situation where the temporary nature of facts essential to

the controversy would consistently defeat review, as in election or

abortion cases. See, e.g., Democratic Party v. Wisconsin, 450

U.S. 107, 115 n.13 (1981); Roe v. Wade, 410 U.S. 113, 125

(1973). In this case, the matter arose from the fine imposed upon

Petitioner by Respondent for her alleged violation of Ohio law, and

that controversy has now abated with her death.

As this case has come to this Court from the state courts,

the proper disposition here would be to dismiss the petition for a

writ of certiorari and leave it to the state courts either to declare

the matter abated or to take whatever other action they deem

proper according to the applicable jurisdictional principles under

state law. See, e.g., Hampton, supra (certiorari dismissed);

Pennsylvania v. Linde, 409 U.S. 1031 (1972) (same); Miller v.

Ohio, 404 U.S. 1011 (1972) (same).”

' As an alternative disposition, Respondent would suggest that

the Court could simply dismiss the writ as improvidently granted, as it

has done in other recent cases in which the Court determined that its

resolution of constitutional questions may be entirely hypothetical. See,

¢.g., Ticor Title Ins. Co. v. Brown, __ U.S. —.» 114 S. Ct. 1359

(1994). It is unclear, however, that this disposition differs in any

pertinent respect from a bare dismissal of certiorari, as the Court has

done in other cases similar to this one upon the death of the individual

party.

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Consequently, Respondent urges this Court to dismiss the

petition for a writ of certiorari in this case.

Respectfully submitted,

LEE FISHER

Attorney General

ANDREW I. SUTTER

Counsel of Record

Assistant Attorney General

30 East Broad Street, 15th Floor

Columbus, Ohio 43215-3428

(614) 466-2872

Counsel for Respondent, Ohio

Elections Commission