# Motion — Monastero v. Nebraska > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0825%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion - **Published:** January 1, 1988 - **Citation:** 488 U.S. 936 ## Text Ee 6 SE Supreme Court, 0. (>) RILED No, 88-477 ocr 13 08 JOSEPH F. SPANIOL, JR, >» CLERK In The Supreme Court of the United States October Term, 1988 ~~," Ww JOE MONASTERO; SAM KATZMAN; and MARLENE ‘‘MARDY’’ McCULLOUGH, vs. STATE OF NEBRASKA, LY. Ww Appellants, Appellee. ON APPEAL FROM THE SUPREME COURT OF NEBRASKA ia* dl MOTION OF APPELLEE TO DISMISS ra’ Vw 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 aw . 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 ih Vw MOTION OF APPELLEE TO DISMISS rT Ww 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0825%3A2. Public record. Not legal advice.