# Motion — McIntyre v. Ohio Elections Comm'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0478%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion - **Published:** January 1, 1995 - **Citation:** 514 U.S. 334 ## Text 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 2 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. 3 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. 4 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0478%3A07. Public record. Not legal advice.