Motion — Monastero v. Nebraska

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Supreme Court, 0.

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No, 88-477 ocr 13 08

JOSEPH F. SPANIOL, JR,

>» CLERK

In The

Supreme Court of the United States

October Term, 1988

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JOE MONASTERO; SAM KATZMAN; and

MARLENE ‘‘MARDY’’ McCULLOUGH,

vs.

STATE OF NEBRASKA,

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Appellants,

Appellee.

ON APPEAL FROM THE SUPREME COURT

OF NEBRASKA

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MOTION OF APPELLEE TO DISMISS

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Rosert M. Sprme, #13977 Rownarp L. SrasKkrewicz

Attorney General of the Douglas County Attorney

State of Nebraska

Metvin K. KamMertone, #12124

Senior Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

Attorneys for the Appellee.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

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. QUESTION PRESENTED

The question presented by this motion to dismiss is

whether the decision of the Nebraska Supreme Court is a

‘¢final judgment or decree’’ pursuant to 28 U.S.C. § 1257 (2)

where

(1) The Appellants await potential conviction and

sentencing for the alleged crimes as charged;

(2) The case was remanded back to the district

court for further proceedings (trial).

ii

PARTIES TO PROCEEDINGS BELOW

Parties before the Nebraska Supreme Court: (1) State

of Nebraska, the Appellee herein; (2) Joe Monastero, Sam

Katzman, and Marlene ‘‘Mardy’’ McCullough, the Appel-

lants herein. In the courts below the Appellee, the State of

Nebraska, has been represented by Robert M. Spire, At-

torney General, William L. Howland, Assistant Attorney

General, and Ronald L. Staskiewiez, Douglas Ceunty At-

torney. The Appellants, Joe Monastero, Sam Katzman,

and Marlene ‘‘Mardy’’ McCullough, were represented by

Thomas J. Guilfoyle, of FROST, MYERS, GUILFOYLE

& GOVIER in the appeal to the Nebraska Supreme Court.

ill

TABLE OF CONTENTS

Page

op 6. i

PARTIES TO PROCEEDINGS BELOW _.. ii

STATE STATUTES INVOLVED 2

ee a PT 3

PERE NT EE ee ke 3

1. This case does not involve a final judg-

ment or decree rendered by the highest

court of the State of Nebraska, therefore

the Appellants lack standing to invoke ap-

pellate jurisdiction pursuant to Section

Werte) 3

ilo inca dhe pleeiekicessaeniscianinndaip recs iudamiaebos 7

iv

TABLE OF AUTHORITIES

Cases

Page

Berman v. United States, 302 U.S. 211 (1937) a

Cox Broadcasting Corporation v. Cohn, 420 U.S.

469 (1975) 3, 4, 5

Ex Parte French, 91 U.S. 423 (1875) <—e

Flynt v. State of Ohio, 451 U.S. 619 (1981) 4,6

Great Western Telegraph Company v. Burnham,

162 U.S. 339 (1896) 4

McComb v. The County Commissioners of Knox

County, Ohio, 91 U.S. 1 (1875) 4

North Dakota State Board of Pharmacy v. Sny-

der’s Drug Stores, Inc., 414 U.S. 156 (1973) 0. 6

Parr v. United States, 351 U.S. 513 (1956) 2004

Radio Station WOW, Inc. v. Johnson, 326 U.S.

ED Ce ailiaiaatiert etch etintncetitensibiintasisiciinaiaiintitincs 3

Republic Natural Gas Company v. State of Okla-

homa, 334 U.S. 62 (1948) 6

Smith v. Adams, 130 U.S. 167 (1889) ... 4

State v. Monastero, 228 Neb. 818, 424 N.W.2d 837

(1988) AOC 2 4

Other Authorities

Nepraska Revisep STaTUTES

Neb.Rev.Stat. § 32-705 2

Neb.Rev.Stat. § 32-713 2

Unrrep Srates Cope

28 U.S.C. § 1257(2) a 2, 6,7

Unrrtep States ConstiTuTion

U. S. Const. amend. I 2,5

a

No. 88-477

In The

Supreme Court of the United States

October Term, 1988

>

Ww

JOE MONASTERO; SAM KATZMAN; and

MARLENE ‘‘MARDY’’ McCULLOUGH,

Appellants,

vs.

STATE OF NEBRASKA,

Appellee.

°

ON APPEAL FROM THE SUPREME COURT

OF NEBRASKA

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MOTION OF APPELLEE TO DISMISS

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Pursuant to Rule 16.1, the Appellee, State of Ne-

braska, moves to dismiss the appeal filed herein or, in the

alternative, to affirm the judgment of the Nebraska Su-

preme Court on the ground that the state litigation which

forms the basis of this appeal is not a ‘‘final judgment

or decree’’ from the highest court in the State of Ne-

2

braska. The Appellants, therefore, have no standing to

invoke this Court’s appellate jurisdiction under 28 U.S.C.

§ 1257(2).

STATE STATUTES INVOLVED

Neb.Rev.Stat. §4 32-705 and 32-713 require that each

ballot petition contain a circulator’s affidavit in the pre-

scribed form, whereby the circulator must swear that each

person whose name appears on the petition signed in the

presence of the circulator. Section 32-713 makes it a

crime to ‘‘falsely swear to any signature’’ upon a petition

and contains the penalty clause making any willful viola-

tion of any of the provisions of the act a Class IV felony.

fr

—

STATEMENT OF FACTS

The Appellants were charged in the District Court of

Douglas County, Nebraska, with the crime of ‘‘falsely

swearing to any signature upon an initiative petition.’’

The Appellants filed a Motion to Quash the Informations

filed against them asserting that the charges were uncon-

stitutional and violative of the First and Fourteenth

Amendments to the Conscitution of the United States.

The Motions to Quash were consolidated. The trial court

found that the crime of falsely swear(ing) to any signa-

ture upon such petition’? was unconstitutionally vague.

On appeal the Nebraska Supreme Court reversed find-

ing that the crime of falsely swearing on an initiative peti-

—

tion was not vague or constitutionally invalid. The Court

held that a petition circulator had adequate and fair notice

of the subject matter of the false swearing. The Court held

that Appellants did not have standing to assert that the

statute was overbroad and restricted their freedom of

speech.

The Appellants brought this appeal.

ARGUMENT

I.

THIS CASE DOES NOT INVOLVE A

FINAL JUDGMENT OR DECREE RENDERED

BY THE HIGHEST COUKT OF THE STATE

OF NEBRASKA, THEREFORE THE APPEL-

LANTS LACK STANDING TO INVOKE AP.-

PELLATE JURISDICTION PURSUANT TO

SECTION 1257(2)

‘*Since 1789, Congress has granted this Court appellate

jurisdiction with respect to state litigation only after the

highest state court in which judgment could be had has

rendered a ‘final judgment or decree’.’’ Cox Broadcast-

ing Corporation v. Cohn, 420 U.S. 469, 476-477 (1975). The

final judgment rule has been interpreted ‘‘to preclude

reviewability . . . where anything further remains to be

determined by a state court, no matter how dissociated

from the only federal issue that has finally been adjudi-

cated by the highest court of the state.’’ Radio Station

WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1985). In the

context of a criminal prosecation, final judgment means

4

sentence. The sentence is the judgment. Berman v. United

States, 302 U.S. 211, 212 (1937); Parr v. United States,

351 U.S. 513, 518 (1956); Flynt v. State of Ohio, 451 U.S.

619, 620 (1981). The present case involves criminal prose-

cutions in which the Appellants were charged with the crime

of ‘‘falsely swearing to a signature upon an initiative peti-

tion.’’ The Appellants are awaiting trial in the State of

Nebraska. They have not been convicted or sentenced.

This appeal arises from the Nebraska Supreme Court

opinion (State v. Monastero, 228 Neb. 818, 424 N.W.2d

837 (1988)) in which the Nebraska Supreme Court vacated

the findings and judgments of the Douglas County District

Court and remanded this matter to the District Court for

further proceedings.

Judgment of an appellate court reversing the judg-

ment of the lower court and remanding the cause for

further proceedings, is not a final judgment, and is

not appealable. Ex Parte French, 91 U.S. 423, 425-

426 (1875); Smith v. Adams, 130 U.S. 167, 177 (1889);

Great Western Telegraph Company v. Burnham, 162 U.S.

339, 341-343 (1896). Moreover, even if the appellate court

considers itself bound on the second appeal by its decision

on the first appeal, making the second appeal a mere for-

mality, the second appeal is a prerequisite to Supreme

Court review. McComb v. The County Commissioners of

Knox County, Ohio, 91 U.S. 1 (1875). It is clear that there

have been no final judgments.

The Appellants contend that this appeal is a final judg-

ment pursuant to Cox Broadcasting Corporation v. Cohn,

supra. We find that their arguments are not frivolous, but

unsound. The Appellants contend that this appeal fits

into the first category as n.entioned in Coz.

In the first category are those cases in which there

are further proceedings—even entire trials—yet to

occur in the state courts but where for one reason or

another the federal issue is conclusive or the outcome

of further proceedings preordained. (emphasis sup-

plied).

Id. at 479.

The ontcome of further proceedings in the state dis-

trict court is not preordained. There has been no convic-

tion or sentence. This case is not even close to being con-

cluded at the state level.

The Appellants concede that the second and third cate-

gories as set out in Cox do not apply in the present case.

However, the Appellants cor.tend that this appeal fits with-

in the fourth category of cases mentioned in Coz, supra.

Lastly, there are those situations where the federal

issue has been finally decided in the state courts with

further proceedings pending in which the parties seek-

ing review here might prevail on the merits om non-

federal grounds, thus rendering unnecessary review of

the federal issue by this Court, and where reversal of

the state court on the federal issue would be preclusive

of any further litigation on the relevant cause of ac-

tion rather than merely controlling the nature and

character of, or determining the admissibility of evi-

dence in, the state proceedings still to come.

Id. at 482-483.

It seems apparent that if this Court reversed the judg-

ments of the Nebraska Supreme Court on the federal issue

regarding the First Amendment of the United States Con-

stitution, there would be no further proceedings in the

state court in these cases. ‘‘But the question remains

whether delaying review until petitioners are convicted,

if they are, would seriously erode federal policy within the

meaning of our prior cases.’’ Flynt v. State of Ohio, 451

U.S. at 622. We are confident that this would not be the

case because initiative petition drives have succeeded since

the failure of the lottery petition drive. This Court does

not have a final judgment before it.

Any contrary conclusion would allow the fourth excep-

tion to 28 U.S.C. § 1257 to swallow the ‘‘final judgment or

decree’’ rule.

Moreover, this Court in North Dakota State Board of

Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156

(1973), stated the policies behind the final judgment rule

as follows:

The finality requirement of 28 U.S.C. § 1257 [28

U.S.C. § 1257] which limits our review of the state

courts judgments, serves several ends: (1) It avoids

piecemeal review by federal courts of state court de-

cisions; (2) It avoids giving advisory opinions in

cases where there may be no real ‘‘case’’ or ‘‘contro-

versy’’ in the sense of Art. III; (3) It limits federal

review of state court determinations of federal con-

stitutional issues to leave at a minimum federal intru-

sion in state affairs.

Id. at 159.

The requirement of finality is not met merely because

the major issues in a case have been decided and only a few

loose ends remained to be tied up, Republic Natural Gas

Company v. State of Oklahoma, 334 U.S. 62, 68 (1948).

©

CONCLUSION

For the foregoing reasons, the appeal docketed by the

Appellants should be dismissed. The appeal before this

Court is not a final judgment or decree within the meaning

of 28 U.S.C. § 1257(2). The Appellee respectfully moves

the Court to dismiss this appeal, or in the alternative, to

affirm the judgment entered in the cause by the Nebraska

Supreme Court.

Respectfully submitted,

Rosert M. Spire, #13977

Attorney General of the

State of Nebraska

Ronap L. StaskIEwicz

Douglas County Attorney

Mervin K. Kammervonr, #12124

Senior Assistant Attorney

General

2115 State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

Attorneys for the Appellee