Motion — Schaefer v. State Administrative Board of Election Laws

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

x BILED

a, il

No. 87-1003 i saat t tae

1OL, JR,

CLERK

In THE

Supreme Court of the United States

Ocroser TERM, 1987

MICHAEL SCHAEFER,

Appellant,

STATE ADMINISTRATIVE BOARD OF ELECTION

LAWS anp STATE ADMINISTRATOR

OF ELECTION LAWS,

Appellees.

On APPEAL FROM THE CouRT OF APPEALS OF MARYLAND

AND THE Crrcurr Court FoR ANNE

ARUNDEL County (MARYLAND)

MOTION TO DISMISS

J. JOSEPH CURRAN, JR.,

Attorney General of Maryland,

RicHarp E. Israkt,

Ropert A. ZARNOCH,

(Counsel of Record)

Assistant Attorneys General,

90 State Circle

Annapolis, Maryland 21401,

(301) 858-3889,

Attorneys for Appellees.

The Daily Record Co., Baltimore, MD 21202

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

RETTER COPY CAN BE OBTAINED, A NEW FICHE

WILT, BE ISSUED,

QUESTIONS PRESENTED

Whether a constitutional challenge by an

unsuccessful U. S. Senate candidate in

the Republican primary to the application

of a State law requiring the alphabetical

listing of candidates was’ correctly

dismissed as moot where the plaintiff

essentially sought only injunctive relief

as to his own candidacy in the 1986

primary election?

Whether a substantial equai protection

question is raised by the application of

Maryland's statutory requirement that the

names of candidates for elected office be

arranged alphabetically on the ballot?

Whether the assessment of $1,069.20 in

appeal costs, most of which consisted of

eharges for printing a brief and record

extract, against a non-indigent litigant

in an election law challenge, raises a

properly presented and substantial

federal question under the First and

Fourteenth Amendments of the U. S.

Constitution?

PARTIES

In addition to the State Administrative

Board of Election Laws_~ and the State

Administrator of Election Laws, Appellant

Schaefer initially named as defendants below

the other ten U. S. Senate candidates in the

Republican primary: Linda Chavez, Monroe

Cornish, Howard D. Greyber, George Haley,

Abraham H. Kalish, Nicholas T. Nonnenmacher,

Melvin Perkins, Horace Stuart Rich, Herbert

Stone Rosenberg, and Richard Sullivan. On

July 31, 1986, Sehaefer moved for dismissal

of the defendant eandidates, although no

order was entered dismissing these persons as

parties. On August 28, 1986, candidate

Chavez answered the complaint in the Circuit

Court for Anne Arundel County. None of these

candidates participated in the subsequent

appellate proceedings.

TABLE OF CONTENTS

QUESTIONS PRESENTED... cccccccccccces

LIST OF PARTIES .. wc cccccccccsccccseces

MOTION TO DISMISS... wccccccccccccccces

GRINIOGNS BELOW... cccccccccccccccscces

Pui 4) .i i) led 6 | Fe i

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED..........ccceec00.

STATEMENT OF THE CASE......ccccccccces

Il.

Appellant's action to enjoin

as unconstitutional Maryland's

alphabetical listing of candi-

dates in the September 1986

primary was properly dismissed

AS MOOt ..eseeeees Swececocecons

No substantial equal protection

question is raised by the appli-

cation of Maryland's statutory

requirement that the names of

candidates for elected office

be arranged alphabetically on

tive DahlOt F.cccccccccccccccccs

Jie eandidate's First Amendment

challenge to the payment of

appeal costs does not properly

present a substantial federal

GUGSCIOR- ccc scccecccssescesses

CONCLUSION. wc cccccccccccccccsscccccces

iii

TABLE OF AUTHORITIES

Cases

Board of Eleetion Commissioners v.

Libertarian Party, 591 F.2d 22

(7th Cir. 1979), cert. denied

442 U.S. 91GB (ISTO). cc ccccscccccsees

Bullock v. Carter, 405 U.S. 134 (1972)

California Motor Transport Co. v.

Trucking Unlimited, 404 U.S. 508

Gl ls ) Perrrrrerrereeerrrrerererrrerre

City of Long Beach v. Bozek, 31 Cal.3d

527, 183 Cal.Rptr. 86, 645 P.2d 137

Gi) 5) Prrrrrrrrrrrrrr Terr rrrererre

City of New Orleans v. Dukes,

427 U.S. 207 (1976). cccccccccccccces

Clements v. Fashing, 457 U.S. 957

Gt) >) Pererrrerrrrrrerrrrrererrerrae i

Clough v. Guzzi, 416 F.Supp. 1057

CP eee. POTS) éccct ese dhe eee ness

In re Griffiths, 413 U.S. 717 (1973)..

Krasnoff v. Hardy, 436 F.Supp. 304

(E.D.La. 1977) ccccccccccccccccccvece

Love v. Griffith, 266 U.S. 32 (1924)..

McLain v. Meier, 637 F.2d 1159

(Sth Cir. 1980) .ccccccccvecccccccece

Munro v. Socialist Workers Party,

Plyer v. Doe, 457 U.S. 202 (1982).....

U.S. , 107 S.Ct. 533 (1986)..

12,15

Richmond Newspapers, Inc. v. Virginia,

G46 GiB. GES CiOSS Pc cccncctisoanrences 21

Salera v. Tucker, 399 F.Supp. 1258

(E.D.Pa. 1975), aff'd on other

grounds sub. nom. Tucker v. Salera,

424 0.8. 969 CIOSTE) a cccescccccsceces 12,13

Storer v. Brown, 415 U.S. 724 (1974).. 12,14

Constitutional Provisions and Statutes

U.S. Constitution:

Article I, Section 4, Clause l...... 16

Article II, Seetion 1, Clause 2..... 16

mim ove is (it i PeWeTT eee eee ee eT rs passim

O- Wah shen BEATS) 6004-0000 6684KS Ces 4

Md. Code Ann.:

Aft. 33, GlO-GC a) a ccccccvecccssccecs passim

Courts and Judicial Proceedings Art.

Pee Fit lt eee EEEETE CT Tere ere 8

Miscellaneous

Rule 16, Rules of the Supreme Court of

the United States... ccccccccseccesecs ]

Maryland Rule 1O08la@...ccccnccccccsces passim

Maryland Rule 166 BG...ssscccdnccceces passim

Maryland MULLS LOB BG. nccscccccsccssese passim

No. 87-1003

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

MICHAEL SCHAEFER,

Appellant

Vv .

STATE ADMINISTRATIVE BOARD OF ELECTION LAWS

and STATE ADMINISTRATOR OF ELECTION LAWS,

Appellees

ON APPEAL FROM THE COURT OF APPEALS

OF MARYLAND AND THE CIRCUIT COURT

FOR ANNE ARUNDEL COUNTY (MARYLAND)

MOTION TO DISMISS

Appellees, State Administrative Board of

Election Laws and State Administrator of

Election Laws ("the State"), pursuant to Rule

16 of the Rules of the Supreme Court of the

United States, move that the appeal of

Michael Schaefer of the judgment of the

Cireuit Court for Anne Arundel County

upholding the constitutionality of Article

33, 316-5(a) of the Maryland Code (dismissed

as moot by the Court of Special Appeals of

Maryland, with subsequent review by

certiorari denied by the Court of Appeals) be

dismissed for lack of jurisdiction or,

alternatively, for want of a substantial

federal question. If the Court of Appeals’

refusal two entertain the issue of the

recognition of a First Amendment’ immunity

from the payment of appeal costs awarded

under Maryland Rule 1082(a) is deemed

properly presented and appealable under 28

U.S.C. §1257(2), the State also moves that

this appeal be dismissed for failure to

present a substantial federal question.

OPINIONS BELOW

The August 28, 1986 Opinion and Order of

the Cireuit court, the May 1, 1987 opinion of

the Court of. Special Appeals, and_ the

September 9, 1987 order of the Court of

Appeals denying certiorari are found in the

Appendix to Appella:t's Jurisdictional

Statement (A.J.S.). The last order is also

noted in 310 Md. 491, 530 A.2d 273 (1987).

Not ineluded in Appellant's Appendix are the

transcribed oral opinion and a July 8, 1986

order of the Circuit Court denying

Appellant's request for an_ interlocutory

injunction and a June 2, 1987 order (letter)

of the Court of Special Appeals denying

Appellant's motion for reconsideration.

JURISDICTION

The Appellant invokes jurisdiction under

28 U.S.C. §1257(2). The State contends that

Schaefer's equal protection challenge to

Article 33, $16-5(a) of the Maryland Code is

moot and, thus, appellate jurisdiction is

lacking as to that claim. In addition, the

issue of the candidate's First Amendment

challenge to the award of appeal costs under

-3-

i i

Maryland Rule 1082(a), if properly presented,

would appear to be reviewable under 28 U.S.C.

$1257(3), not §1257(2).

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED °

Pertinent provisions’7 of the United

States Constitution and the Maryland Election

Taw are set forth in the Appellant's

Jurisdictional Statement (J.S.). Also

relevant to his First Amendment claim are the

following provisions of Chapter 1000 of the

‘aryland Rules of Procedure (Appeals to the

Court of Special Appeals):

Rule 1081 a.

In taxing the costs in a case the Clerk shall

include the allowance determined pursuant to

section b of this Rule for printing the briefs, the

record extract, and any necessary appendices to

briefs, the amount, if any, paid by the appellant

for the original and the copies of the steno-

graphic transcript of testimony furnished

pursuant to section a 2 of Rule 1026 (Record on

Appeal), and the cost of printing a motion to

dismiss if the motion is granted.

Rule 1082 a.

In all cases in this court the awarding of costs

shall be in the discretion of this Court, but unless

it is otherwise ordered by this Court costs shall

be awarded against the losing party.

Rule 1082 ce.

When unnecessary matter has been included in

a record extract or appendix or when a brief,

appendix, or record extract has not been printed

in accordance with section a of Rule 1031 (Style

and Contents of Brief), the costs of printing may

be withheld or divided as this court may direct.

STATEMENT OF THE CASE

In the State of Maryland, in 1986 some

2,700 candidates for publie office filed to

run in more than 1,000 election contests.

The offices to be filled ranged from federal

posts, such as U. S. Senate, to State-wide

offices, such as Governor’ and Attorney

General, to distinetly local offices, such as

school boards and registers of wills. Eleven

candidates sought the Republican nomination

for a U. S. Senate seat to be voted on in the

September 9, 1987, primary. Pursuant to §$16-

5(a) of Article 33 of the Maryland Code, they

were all slated to be listed alphabetically

on the ballot according to their surnames.

On July 3, 1986, one of those senatorial

candidates, Appellant Schaefer, filed a

"complaint for injunetion" and “motion for

preliminary or interlocutory injunetion"

alleging that $§16-5(a) denied him equal

protection of the laws. He sued only in his

own name and on behalf of his own candidacy;

he was not joined in his’ lawsuit’ by

Supporters, associates or voters; he did not

file a elass action. His prayer for relief

sought a permanent injunction enjoining and

restraining the State "from certification of

candidates in an alphabetical manner as to

election of Republican Nominees for U. S.

Senate in the September 9, 1986 primary

throughout the State of Maryland." 1/

Although a paragraph of Schaefer's complaint stated "[t] hat

the Court should declare said Maryland statute unconstitu-

tional and order election agencies and officials to proceed in

(continued)

-§-

Upon the submission of affidavits by all

parties (including expert testimony) and full

briefing of the equal protection issue, the

Cireuit Court held an expedited hearing on

July 8, 1986 to consider Schaefer's request

for an interlocutory injunction. Following

the hearing, Judge James C. Cawood, Jr.

issued an oral opinion that analyzed the

submitted authorities, concluded that it was

not unconstitutional to use an alphabetical

listing on the ballot, and held that the

candidate was not- reasonably likely to

succeed on the merits of his claim. Although

a manner consistent with plaintiff's constitutional rights

herein," it is clear that neither the parties nor the circuit

court treated the proceedings below as a declaratory

judgment action. Schaefer did not invoke the Maryland

Declaratory Judgment Act, Md. Code, Courts and Judicial

Proceedings Article, §3-401, et seq., or comply with its

terms, particularly with respect to notice, parties and

allegations, see $3-405 and §3-409. As a result, the trial

court did not issue a judgment declaring the rights of the

.‘parties, which Maryland law requires in a true declaratory

judgment action. See Courts and Judicial Proceedings

Article, §3-411; Broadwater v. State, 303 Md. 461, 469, 494

A.2d 934, 938 (1985).

Schaefer could have immediately appealed the

denial of interlocutory relief under Md.

Code, Cts. & Jud. Proce. Art., §$12-303(¢)(3)

and actually considered an expedited appeal

(R. 228), he declined to do so.

Subsequently, the State moved for

summary judgment in Schaefer's action for

permanent injunctive relief, submitting no

new further affidavits or evidence. The

eandidate opposed the motion on the grounds

that "there exists a question of fact, i.e.,

is there a preference or advantage to being

listed in any particular place on a ballot

listing of candidates"; and that the State

had failed to show a compelling interest as

to the statement of facts before the @Gourt.

However, he too submitted no additional

evidence and asked the Court to rule on the

papers before it. On August 28, 1986, Judge

Cawood granted the State's motion, noting

that "[a] lphabetical order has been commonly

accepted for lists of people since’ the

history of the alphabet, and was the way all

or almost ail ballots were originally set

up"; that the fact that some statistical

advantage may at some time accrue to one of

the candidates would not invalidate

Maryland's ballot arrangement law; and that

"Twlhether applying a ‘rational basis' or

"strict serutiny' test, we think the Maryland

system of alphabetical listing passes consti-

tutional muster." A.J.S. at A-2 and A-3.

On September 1, 1986, Schaefer filed a

routine appeal with the Court of Special

Appeals. On September 9, the- primary

election was held. Linda Chavez won the

Republican nomination for U. S. Senate with

more than 100,000 votes; Schaefer, a

political unknown in Maryland, finished

second out of eleven candidates with 16,902

votes -- largely on the basis of the

similarity of his name with that of the

suecessful Democratic candidate for Governor,

William Donald Schaefer.

On May 1, 1987, the Court of Special

Appeals issued an_ opinion’ holding’ that

"[b] ased on the particular remedy sought

no controversy currently exists between the

parties; no effective remedy is possible; and

the question raised has become moot." A.J.S.

at A-7.- The Court added that "[ilf, by

happenstance, the issue ever again arises,

there would be no difficulty in having it

resolved in a timely fashion as a viable

issue." Id. at A-9. The Court's order noted

"Appeal dismissed. Costs to be paid by

Appellant." Id.

On May 26, 1987, Schaefer moved _ the

Court to reconsider its decision, arguing

only that the case had not become moot. This

motion was denied on June 2, 1987. On the

same day the Court's mandate issued with a

statement of $1,069.20 in costs, most of

-10-

which consisted of the expenses of printing

briefs and record extracts. The largest item

was $705.60 for printing materials which the

State included in its record extract because

Schaefer declined to include them in his own.

Appellant filed 4 petition for

certiorari in the Court of Appeals, asking

the Court to review the issues of the con-

stitutionality of the alphabetical listing

statute and of the mootness of his claim. In

addition, Sehaefer, for the first time,

sought review of the issue of whether "costs

in a procestiag of this nature’ [were]

properly charged to plaintiff personally."

In a “supplemental" memorandum filed several

days later, the candidate argued that the

award of costs had a ehilling effect on his

First Amendment right to petition’ the

government. On September 9, 1987, the Court

denied Appellant's petition for certiorari.

-l]l-

I. Appeilant's action to enjoin as unconsti-

tutional Maryland's alphabetical listing

of candidates in the September 1986

primary was properly dismissed as moot.

It is Appellant's position that = an

election law challenge can never become moot,

J.S. at ll, and that such controversies are

always "capable of repetition yet evading

review" within this Court's long recognized

exception to the mootness doctrine. See

Storer v. Brown, 415 U.S. 724, 737, nxn. 8

(1974). He also now asserts that he "may" be

49 candidate again in the future and that this

is enough to render his ballot arrangement

challenge presently justiciable. J.S. at

il. These contentions are simply erroneous.

Election law challenges’ seeking only

injunctive relief for a single election can

be found moot. See Love v. Griffith, 266

U.S. 32, .34 (1924); Salera v. Tucker, 399

F.Supp. 1258, 1262 (E.D.Pa. 1975), aff'd on

other grounds sub. nom. Tucker v. Salera, 424

U.S. 959 (1976). Moreover, the holding of

-12-

the election coupled with the absence of

class representation and the lack of

"evidence" of an intention to seek future

office could result in a finding of moot-

ness. Salera v. Tucker, supra, 399 F.Supp.

at 1262, n. 4.

It was not just the holding of the

September 1986 primary that led the Court of

Special Appeals to conelude that Schaefer's

appeal was moot, but also “the particular

relief sought." A.J.S. at A-T7. He asked

only for an injunetion with respect to the

1986 election, not future elections. He did

not seek or obtain a declaratory judgment.

Furthermore, Sehaefer brought his action

solely in his own name and for the benefit of

his 1986 candidacy, not as a class action on

behalf of supporters or voters. And, despite

his asserted interest in a future candidacy,

he passed up the opportunity to be a

-13-

candidate in the 1988 elections in Maryland,

including another U. S. Senate race.

It is also noteworthy that this was not

a ballot access case with an impact on voting

rights, but a ballot arrangement challenge,

of singular interest to the individual candi-

date. Such a challenge is so intertwined

with faets peculiar to each election, that

even if Sehaefer's constitutional claim had

some merit, the allegedly unconstitutional

conduct would not continue from election to

election. 2/ These factual variances,

coupled with the eclarity of §16-5(a)'s

provisions, undercut the likelihood’ that

continuance of Schaefer's action "will have

the effect of simplifying future challenges,"

Storer v. Brown, supra, 415 U.S. at 737, n.

2 In his complaint in the Circuit Court, Appellant conceded

that the so-called advantage of top-of-the-ballot listing

varied "depending on the visibility of the office, and the

number of candidates seeking said office."

-14-

Finally, this is not a case where the

Maryland appellate courts have placed

"hinderances in the way" of taking up federal

constitutional issues, Love v. Griffith,

Supra, 266 U.S. at 34, or one that will

necessarily evade appellate review. The

candidate could have sought expedited review

of the Cireuit Court's July 8, 1986 decision

to deny an_ interlocutory injunction, but

simply declined to do so. For all of these

reasons, the Court of Special Appeals

correctly concluded that Schaefer's

injunction action was moot. Similarly, this

Court should dismiss Appellant's appeal as

moot.

II. No substantial equal protection question

is raised by the application of

Maryland's statuiory requirement that the

names of candicates for elected office be

arranged alphabetically on the ballot.

Appellant has pointed out that the way

in which candidates are listed on the ballot

varies among the states. Thus, he concludes,

-15-

"({t)here is inconsistency in federal

elections." J.S. at 5. However, the mere

fact that there are differences among the

states in the manner’ in which federal

officials are elected raises no constitu-

tionai issue. Indeed, the Constitution

clearly sanctions such differences as _ an

element of the federal system. Thus, Article

lt, See. 1, Cl. 2 provides for the appoint-

ment of Presidential Electors by each state

"in such manner as the Legislature thereof

may direct." Similarly, the Constitution

provides that subject to the overriding power

of Congress, “the Times, Places and Manner of

holding Elections for Senators and

Representatives, shall be prescribed in each

State by the Legislature thereof." Art. I,

See. 4, Ch. i.e Of eourse, the states'

exercise of this broad, residue! power to

regulate the election of federal officials is

subject to the various limitations of the

-16-

federal Constitution, ineluding the Equal

Protection Clause.

Although the Fourteenth Amendment

forbids the states to deny to any person the

Equal Protection of the Laws, it is an

elementary principle of constitutional law

that this clause does not flatly forbid the

states to make distinctions. Ordinarily, a

distinetion or classification must simply be

rationally related to a legitimate State

interest. City of New Orleans v. Dukes, 427

U.S. 297, 303 (1976). Of course, where a

distinction involves a suspect classification

or fundamental right, it is subject to strict

serutiny and must serve a compelling State

interest. Plyer v. Doe, 457 U.S. 202, 216-

217 (1982). Although the right of qualified

voters to cast their ballots has_ been

regarded as fundamental of this Court and is

clearly related to the right to run for

publie office, this Court has not found the

-17-

right to run for publie office to be itself a

{undamental right. Bullock v. Carter, 405

U.S. 134, 142-144 (1972) and Clements v.

Fashing, 457 U.S. 957, 963 (Court's Opinion)

and 977, n. 2 (Dissent) (1982). Moreover,

this Court has recognized that a State

Legislature may anticipate potential problems

in the electoral process, such as voter

eonfusion, so long as it acts reasonably and

does not significantly burden’ constitu-

tionally protected rights. Munro V.

Socialist Workers Party, U.S. » 107

S.Ct. 533, 538 (1986).

With respect to ballot position cases,

the lower federal courts have consistently

applied a rational basis standard. McLain v.

Meier, 637 F.2d 1159, 1167 (8th Cir. 1980),

—_— —

Krasnoff v. Hardy, 436 F.Supp. 304, 308

(E.D.La. 1977), and Clough v. Guzzi, 416

b.Supp. 1057, 1066-1067 (D.Mass. 1976).

Indeed, the Court of Appeals for the Seventh

-18-

acca

Circuit has required a showing of intentional

discrimination and actual disadvantage.

Board of Eleetion Conmissioners Vv.

Libertarian Party, 591 F.2d 22, 24-25 (7th

Cir. 1979), cert. denied 442 U.S. 918

(1979). In the latter case, it was

recognized that a state had a _ legitimate

interest in making the ballot as convenient

and intelligible as possible for the great

majority of the voters. Id. at (7.

Although Schaefer claims that the only

clear interest served by listing the

candidates in alphabetical order is_ the

convenience of election officials, J.S. at 5,

this is manifestly untrue. An alphabetical

listing clearly assists voters in finding the

name of the candidate of their choice. This

is especially so when, as was the case of

Appellant's race, there is a sizeable field

of candidates on a crowded ballot. Moreover,

Sehaefer's second place finish in a field of

-19-

eleven candidates suggests that his candidacy

was not burdened by the alphabetical listing

of his name on the ballot. Any burden which

might oceur is clearly outweighed by the

State's interest in assisting voters. in

expressing their choice.

Because Appellant has not shown that the

decision below conflicts with any decision of

this Court or that any conflict among state

or federal courts exists with respect to the

constitutionality of an alphabetical listing

requirement for candidates, his appeal should

be dismissed for failure to state a substan-

tial federal question.

III. The candidate's First Amendment

challenge to the payment of appeal costs

does not properly present a substantial

federal question.

There are many reasons why Appellant's

attempt to immunize himself from the payment

-20-

of appeal costs is not worthy of this Court's

attention.

First, even though a court rule may be

deemed a state "statute" for purposes of 28

U.S.C. §$1257(2), see In re Griffiths, 413

U.S. 717 (1973), Schaefer has not

sufficiently drawn into question the consti-

tutionality of Maryland Rule 1082a, but has

simply asserted a ecliam of First Amendment

right. See Richmond Newspapers, Ine. v.

Virginia, 448 U.S. 555, 562, n. 4 (1980). In

fact, he did not even cite the Rule to this

Court or the Court of Appeals of Maryland.

Thus, Appellant cannot appeal this issue by

way of 28 U.S.C. §1257(2).

Second, following a judgment against him

in the Court of Special Appeals (including

costs), Schaefer filed a motion for recon-

sideration, but still did not raise the issue

of a elaimed First Amendment right to shift

the costs of his appeal to the State. He did

-2l1-

not ask the intermediate appellate court to

exercise its discretion under Rule 1082a to

withhold or divide costs or to find under

Rule 1082c that the State had _ included

unnecessary matter in a record extract. The

constitutional issue was raised tas the first

time in a petition for certiorari denied by

the Court of Appeals. There is no language

in any opinion or order indicating that the

constitutional issue was considered or

disposed of. For this reason, Schaefer's

appeal should be dismissed.

Third, even if the First Amendment claim

were properly presented, it is wholly

insubstantial. At issue is $1,069.20, a

portion of which consisted of Appellant's

filing fees and briefing costs and other

charges necessary to present his appeal. The

largest component is the cost of a record

extract prepared by the State “weeauee of

Schaefer's refusal to include certain

-22-

requested material in his filing. This

dispute, however, could have been resolved by

resort to mechanisms in the Maryland Rules of

Procedure. See Rule 1082c.

Fourth, even though the First Amendment

right to petition ineludes the right of

access to the courts, California Motor

Transport Co. v. Trucking Unlimited, 404 U.S.

508 (1972), no ease of this or any other

court holds that the First Amendment protects

a litigant from paying court costs. The only

decision cited by Appellant, City of Long

Beach v. Bozek, 31 Cal.3d 527, 183 Cal.Rptr.

86, 645 P.2d 137 =(1982), undereuts his

position. While holding that the First

Amendment bars a governmental action for

malicious prosecution, the Supreme Court of

California notes that, from a constitutional

Stand>ooint, an award of expenses is a clearly

preferable remedy to an independent action

for malicious prosecution. 645 P.2d at 143.

Finally, Appellant, a hotel owner and

lawyer, J.S. at 3, is not indigent’ and

clearly could afford to pay for the appeal

eosts assessed.

CONCLUS I ON

For all of the above reasons, the State

urges that its motion to dismiss be granted

and that Schaefer's appeal be dismissed for

lack of jurisdiction or, alternatively, for

want of a substantial federal question.

Respectfully submitted,

J. JOSEPH CURRAN,

Attorney General

RICHARD E. ISRAEL,

ROBERT A. ZARNOCH,

(Counsel of Record)

Assistant Attorneys General

90 State Circle

Annapolis, Maryland 21401

(301) 858-3889

Attorneys for Appellees

-24-

F-2

(b) Before admission to the bar, each applicant shall

be passed upon by the committee in his district as to

his good moral character and general fitness to prac-

tice law. He shall furnish the committee with an af-

fidavit in such form as the Board of Law Examiners

shall prescribe concerning the history. Each applicant

shall appear before the committee of his district or

some member thereof and shall furnish the commit-

tee such evidence of his good moral character and

general fitness to practice law as in the opinion of the

committee would justify his admission to the bar.

cant is of good moral character and general fitness to

practice law, it shall so certify to the Board of Law

Examiners and the applicant shall thereafter be en-

titled to admission to the bar. If the committee is not

of that opinion, it shall file with the Board of Law Ex-

aminers a statement that it cannot so certify, together

with a report of its findings and conclusions.

(d) An applicant who has availed himself of his full

hearing rights before the Committee on Character and

Fitness and who deems himself aggrieved by the deter-

mination of the committee may, on notice to the com-

mittee, petition the Supreme Court for relief.

Supreme Court Rule 709. Power to Make Rules.

(a) Subject to the approval of the Supreme Court, the

Board of Law Examiners and the Committee on

Character and Fitness shall have the power to make,

adopt, and alter rules not inconsistent with this rule,

for the proper performance of their respective

functions.

Illinois Supreme Court Rules on “Admission and Discipline of

Attorneys”, Chapter 110A, Illinois Revised Statutes , Section 708

F-3

Supreme Court Rule 708. Committee on Character and Fitnes:

cant is of good moral character and general fitness to

practice law, it shall so certify to the Board of Law

Examiners and the applicant shall thereafter be en-

titled to admission to the bar unless the court orders

otherwise. If the committee is not of that opinion, it

shall file with the Board of Law Examiners a state-

ment that it cannot so certify, together with a report

of its findings and conclusions.

Rules of Procedure, Character and Fitness Committee of the

Supreme Court of Illinois, First District:

Rule 3. Initial Review of Questionnaire.

When the questionnaire shall been (sic) substantially

processed, it shall be reviewed by the Administrator

or an Examiner and if no adverse matters bearing on

the Applicant’s Character and fitness are apparent, the

Administrator shall certify the Applicant to the Board

for Admission to the Bar. In the event that Applicant

is not so approved for certification, the Chairman shall

assign the application, consisting of Applicant’s original

and supplemental questionnaires and supplemental

documents, to an Inquiry Panel of the Committee for

further review and examination.

Rule 4.3 The Inquiry Panel may certify an Applicant

only by an unanimous vote, upon which the Secretary

shall be promptly so notified in writing.

Rule 4.4 In the event the Inquiry Panel has not voted

to certify the Applicant, the Secretary shall thereupon

be so advised, including a report of the findings of

adverse matters, and the Chairman shall thereupon im-

panel a Hearing Panel, none of whom shall have been

members of the Inquiry Panel considering the Appli-

cant, to formally consider the application upon a date

certain.

Rule 5. Hearing Panels.

Rule 5.1 The Hearing Panel shall consist of seven

members of the Committee, including the Chair-Person

as designated by the Chairman...

Rule 5.2 Upon impaneling the Hearing Panel, the

Secretary shall notify the Applicant by certified mail of:

(a) The date, time and place of such hearing;

(b) The matters adverse to Applicant, as specified by

the Inquiry Panel;

upon statements from other persons, the names of such

persons;

(d) The Applicant’s rights to be represented by counsel,

to examine and cross-examine witnesses, to adduce

evidence bearing on the aforesaid adverse matters and

upon the Applicant’s moral character and fitness;and

for such purpose to make reasonable use of the Com-

mittee’s subpoena powers under Rule 7 and shall also

supply the Applicant with > copy of these rules.

Rule 5.3 The hearings before the Hearing Panel shall

be private... conducted in a formal manner, with the

Applicants’ (sic) having the rights heretofore referred

to. The Chairman shall appoint counsel from among

members of the Bar (including members of the staff

of the Attorney Registration and Disciplinary Commis-

sion) to prepare and present the matters adverse to the

Applicant. The burden of proof shall be on the Appli-

cant to establish his good moral character and fitness.

The Hearing Panel shall not be bound by the formal

rules of evidence; it may in its discretion take evidence

in other than testimonial form, having the right to re-

ly upon records and other materials furnished to the

Hearing Panel in response to its requests for assistance

F-5

in its inquiries pursuant to these rules and Supreme

Court Rule 709; and it may further in its discretion

determine whether any evidence to be taken in

testimonial form shall be taken in person at the hear-

ing or upon deposition, but all testimonial evidence

shall in either event be taken under oath. The matters

to be considered by the Hearing Panel need not be

limited to the matters of concern set forth in the notice

to the Applicant of the matters adverse to the

Applicant...

Rule 5.5 If the Hearing Panel shall vote to certify any

Applicant, the Secretary shall promptly be so notified,

in writing. a

Rule 5.6 If, after a hearing, the Hearing Panel is not

prepared to certify the Applicant, it shall deliver a

report of his findings and conclusions to the Secretary

and the Board, with a copy being furnished to the

Applicant.

Rule 6.1 The secretary shall notify each Applicant who

has been certified promptly after such action.

Rule 6.2 Each certification of an Applicant for admis-

sion on examination prior to the announcement of the

result of such examination, who fails to pass such ex-

amination, shall be a tentative certification..

APPENDIX G

February 17, 1986 Letter

G-1

APPENDIX G

February 17, 1986 Letter

Committee on Character and Fitness

By Appointment of the Illinois Supreme Court

203 North Wabash, #2100

Chicago 60601

(312) 236-1743

February 17, 1986

Mr. Edward Anthony Loss, III

83 Sandhurst Road

Mundelein, Illinois 60060

Dear Mr. Loss:

Please be advised that the Hearing Panel for the Committee

on Character and Fitness, First Judicial District, has recommend-

ed that you be Certified by the Committee for admission to the

Illinois Bar.

There will be a period of one week to 10 days for paperwork

on the Certification to clear the proper offices, after which I will

notify you of the clearance and the procedure for being sworn

in at the earliest date.

Yours very truly,

(Mrs. ) Mary J. Lampman

Secretary

MJL/Im

ce: William Haddad, Esq.

Committee File

APPENDIX H

“ee e##e

4 ‘

f>mibpf fF

: z

‘

wer? eo we sew swe

" — =

~~ FF : 3. .

ert the . eat

; ; "

_ : +

. ;

tice NVA “ ~~

~ . : Pe : ; » \f

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.