# Appendix — Gibson v. Firestone

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1229

## Text

Sthice -Supr: me Court, US.
FILED

ALEXANDO? L STEYAS,
| CLERK

CASE NO.

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1984

ROBERT E. GIBSON, et al,
Petitioner,
vs.

GEORGE FIRESTONE,

Respondent.

ON WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI
APPENDIX

James G. Mahorner
Attorney for Petitioner
1020 East Lafayette Street
Tallahassee, Florida 32301
Phone: (904) 656-3591

, 4 A
‘

ny

es ee

CASE NO.

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1984

ROBERT E. GIBSON, et al,
Petitioner,
vs.

GEORGE FIRESTONE,

Respondent.

ON WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI
APPENDIX

James G. Mahorner
Attorney for Petitioner
1020 East Lafayette Street
Tallahassee, Florida 32301
Phone: (904) 656-3591

penta ah oe

APPENDIX INDEX

PAGE NO.

Reference

Ue Ss. District es ee a eee

Complaint (1 C 4)..........Count & Paragraph

U. S. District Court

Intervenor Complaint and Motion...........48

U. S. District Court Opinion........+++++-+67

U. S. Circuit Court Opinion..ccccccccccceeld®

- 26 «

~ neon liad

UNITED STATES DISTRICT COURT COMPLAINT

- 99 -

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT E. GIBSON,

Plaintiff

vs. : CASE NO. TCA 84-
7168-WS

GEORGE FIRESTONE, :

individually and as :

Secretary of State of :

the State of Florida :

and MARTIN FINE, :

Defendants.

COMPLAINT

COUNT I
The Complaint of Robert E. Gibson
respectfully represents:
1. This is an action for injunctive

- 30 -

ii

relief and this Court has jurisdiction under
42 U.S.C. 1331(a), 2343(3), 1983, and the
provisions of Art. I, Section 10 and the
First and Fourteenth Amendments of the United
States Constitution.

2. Plaintiff, Robert E. Gibson, signed
the Petition which caused the Defendant,
George Firestone, Secretary of State of the
State of Florida to certify that the proposed
amendment to the Florida Constitution,
designated Proposition 1, as having met the
State Constitutional requirement for
placement on the November ballot for the 1984
Florida General Election. A copy of said
certification is attached hereto as Exhibit
ra 4 Plaintiff has expended substantial
funds and labor as a strong supporter of the
proposed amendment and the limits it places
on the government's ability to extract from

its citizens the harvest of their labors as

- 31-

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is evidenced by his instituting this Court's
case number TCA 84-7109 MMP and as extensive
participant in the minor non-party roll
ofamicus curiae in the State courts.

3. Defendant, Martin Fine, brought suit
against the Defendant, George Firestone, in
the First District Court of Appeal of Florida
seeking to have the proposed amendment struck
from the ballot. Defendant, George
Firestone, then publicly acclaimed’ the
virtues of the suit brought by Defendant,
Martin Fine and further assisted Martin Fine
in his quest by consenting to the issuance of
the Order to Show Cause, declining to defend
on the merits, neither filing briefs or
participating in oral argument nor in any
other manner opposing the legal attack made
by Defendant Fine. Attached as Exhibit "2"
is the complete response made by Defendant,
Firestone.

- 32 -

4. Plaintiff and others who supported
Proposition 1 sought to intervene so as to
obtain party status in the case and were
summarily denied the same in this case which
was to decide their rights to vote on
constitutional initiative proposals even
though there was no party who supported such
rights. (Plaintiff was permitted the status
of amicus curiae.)

5. The District Court, by the attached
Opinion, Exhibit "3", found the proposal to
meet the State Constitutional requirements
against the announced position of both
parties to the case.

6. The Petition for Review by Defendant
Martin Fine was filed in the Florida Supreme
Court by his attorney who was a recent member
of such body and who persuaded his former
colleagues to enter the Opinion granting
Mandamus (attached as Exhibit "4") and

- 33 -

depriving Plaintiff all rights to vote on the
candidacy of Propositon 1. (Plaintiff
acknowledges that the many laws in the
Federal and State's jurisprudence which
prohibit early appearance before an agency by
one previously having status with such agency
have no direct application to the courts of
Florida).

7. Plaintiff had no party status and
since both Defendants, who opposed
Proposition 1, were the sole parties in the
cause, there was no possibility for the
filing of a petition for rehearing, for the
taking of an appeal, nor for the filing of
motions attacking jurisdiction and other
issues which could have been raised by a
party to the case.

8. Plaintiff had, upon the certification
by the Defendant, Firestone, the Federally
protected voting right to cast his vote for

- 34 -

the candidacy of Proposition 1 and to have
its limitation upon government's
expropriation of his labor's harvest to
become law if the majority of the citizens
agreed with him. Plaintiff and others
responsible for placing the amendment on the
ballot are the only candidates. Plaintiff's
right to be a candidate is protected by the
due process and equal protection clauses of
the Fourteenth Amendment to the United States
Constitution. Said rights were summarily
terminated without procedural due process and
are presently being denied.

Plaintiff was deprived of said rights
without procedural due process in a judicial
proceeding in which his rights were opposed

by all parties to that proceeding.

The Defendant, Firestone, is now
directed under color of State law to strike
the proposed amendment from the ballot

- 35 -

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invalidating his previously valid
certification under the authority of a
nonadversary court action, which he refused
to defend, thereby assuring his’ future
emoluments of office without threat of
limitation on the power to extract from
Plaintiff the support of such benefits.

9. The above-described circumstances
disenfranchised Plaintiff of the right to
vote for and promote his’ candidacy of
Proposition i in violation of the freedom of
speech and assembly provisions of the First
Amendment and the equal protection and
Sustantive due process provisions of the
Fourteenth Amendment of the United States
Constitution. Such disenfranchisement
without affording Plaintiff party status
violated the procedural due process
guaranteed by the Fourteenth Amendment.

10Ihe Florida Supreme Court gave to

- 36 -

Plaintiff a property right in its prior
decisions interpreting the initiative
provision of the Florida Constitution subject
to the condition precedent that he take
action in reliance on them stating to him in

Florida Forest and Park Service Vv.

Strickland, 18 So.2d. 251, 253 (1944), that

it was well recognized that ". . . where a
statute has received a given construction by
a court of supreme jurisdiction and property
or contract rights have been acquired under
and in accordance with such construction,
such rights should not be destroyed by giving
to a subsequent overruling decision a

retrospective operation.” (Citing Douglass

v. Pike County, 101 U.S. 677, 25 L.Ed. 968)

Plaintiff has been deprived without’ the
procedural due process guaranteed by the
Fourteenth Amendment of the Federal
Constitutions of the property right to have

- 37 -

the amendment constitutional under the prior
decisions submitted to the electorate.
Plaintiff's opportunity for success are
sufficient to justify a preliminary
injunction, the United States Supreme Court
and the Fifth Circuit Court of Appeals having

held in Aerojet General Corporation v. Askew,

514 F.2d. 1072, appeal dismissed and
certiorari denied, 46 L.Ed. 187, rehearing
denied, 423 U.S. 1026, that straw man
litigation between two parties who favor a
single position cannot deprive non-parties of
their rights.
11Plaintiff has no adequate remendy at
law and injunction and declaratory relief by
this Court are the only methods whereby
Plaintiff can avoid irreparable injury.
COUNT II

IMPAIRMENT OF CONTRACT

The Complaint of Robert E. Gibson

- 38 -

ot Aah ek er ee Bal

respectfully represents:

1. Plaintiff restates the assertions of
the preceeding Count.

2. This is an action for impairment of
rights of contract protected by Art. I,
Section 10 of the United States Constitution.

3. The Florida Supreme Court in its

Opinion in Humphrey v. State, 145 S. 858

(1933), citing the Federal cases of Douglas

Vv. Pike, 25 L.Ed. 968, Louisiana Vv.

Pillsbury, 26 L.Ed. 109, and Gelpcke vy.

Dubugue, 17 L.Ed. 520, asserts to Plaintiff

and others who take action in reliance on its
Opinions that it wiil not apply recission of
such opinions to them retrospecively.

4. The Plaintiff and others in reliance
on such clear pronouncement through great
labor and expenditure of funds promoted the
proposed constitutional amendment and
gathered over 600,000 petitions, paid to the

- 39 -

—_—

State of Florida the sum of $37,000 for
checking the names on the petitions and
further relied on the fact that it met the
State Constitutional requirements as laid
down by the Florida Supreme Court in its

recent but prior opinions in Floridians

Against Casino Take Over vy. Let's Help

Florida, 363 So.2d. 337 (Fla. 1978) and Weber

Where in his concurring opinion, Mr. Justice
England said:

". « « Appellants view it narrowly
(the one subject limitation). .. .
Appellees view it broadly. .. .
Neither offers us any precise
historical data as to why this
limiting phraseology was_ selected
when it was adopted by the
Legislature and submitted to the
people for their approval in 1972.

- 40 -

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In the absence of guidance from the
framers of the phrase, it becomes our
responsibility to select one or the
other interpretation not only looking
back on its development as best we
can and with ae view to its

applicability in this case but as

well with a concern for future cases

where the right of initiative may be

exercised. ° ° . (Emphasis

prior

supplied).

5. The Secretary of State, Defendant

Firestone, approved the form of Proposition 1

signature and no legal attack was made during
such circulation though such is permitted by

Floridians, supra.

6. The approval for circulation by the

- 41 -

to circulation of the petition for

2 Path hnate Ost,

Defendant, Firestone, of the form constitutes
an offer in the classical form of a
unilateral contract to certify Proposition 1
for the ballot and permit the candidacy
thereof to receive the vote of the electorate
in return for the enormous effort of
successfully obtaining sufficient signatures.

7. The unilateral contract with the
Defendant and the Court was then impaired in
violation of Art. I, Section 10 of the
Federal and State Constitutions by the
subsequent invalidating of the Weber and

Floridians Opinions (which were the

guidelines used for Proposition 1 subject
limitation) and its retrospective application
to the subject of Proposition 1, the subject
matter of which resulted from a reliance on

the court's representation in Humphrey v.

State that it would not retrospectively apply

recission of existing established holdings to

- 42 -

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the

foregoing intervening Complaint was mailed
this 15th day of May, 1984, to:

Jim Smith, Attorney General of

Florida

Attorney for Defendant Secretary of

State George Firestone

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32301

(904) 488-1573

Arthur J. England, Jr., Esquire
Attorney for Defendant Martin Fine
Steel, Hector and Davis

1400 Southeast Bank Building
Miami, Florida 33131

(305) 577-2987

- 65 -

Stuart L. Simon, Irwin Block

and Burt Hellman, Esquires
Attorneys for Defendant Martin Fine
Fine, Jacobson, Block, Klein,Colan,
and Simon P.A.
2401 Douglas Road
Miami, Florida 33134

(305) 446-2200

James C. Mahorner, Esquire
Attorney for Plaintiff

206 South Monroe Street
Tallahassee, Florida 32302

(904) 222-7735

Dennis M. O'Connor, Attorney

» 86 -

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UNITED STATES DISTRICT COURT OPINION

- &7 -

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA

Robert E. Gibson, CASE NO. TCA 84-7168-
ws
Plaintiff,

vs.

George Firestone, Individually and as
Secretary of State of the State of Florida,
and Martin Fine,

Defendants
P and
Ed Havill, .Y.Phillips, Jr., and George
Schulte,
Floridians for Tax Relief, and Limit
Government
Committee,

Intervening Plaintiffs,

vs.
George Fireston, Individually and as
Secretary of State of the State of Florida,
and Martin Fine,

Defendants,

/
INTERVENING COMPLAINT

Intervening Plaintiffs Ed Havill, Y. Y.
Phillips, Jr., George Schulte, Floridians for
Tax Relief, and Limit Government Committee,
respectfully represent and allege:

COUNT 1

1. The Complaint in this action, Count

1, paragraphs 1 through 11 is incorporated

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herein as if fully set forth.

2. Ed Havill, Y. Y. Phillips, Jr., and
George Schulte are citizens, taxpayers and
electors of Florida.

3. Ed Havill, Y. Y. Phillips, Jr., and
George Schulte, have expended funds and labor
in support of the "Citizens' Choice on
Government Revenue" proposed Florida
Constitutional Amendment 1 which was
certified as tc ballot position for the
November, 1984 general election ballot.

4. Floridians for tax relief is an
association of Florida citizens, including Ed
Havill and others, authorized and required by
Florida law, Section 100.371(3), Fla. Stat.,
to register as a political committee, It has
expended in excess of $200,000 and labor in
efforts to promote and sponsor Amendment 1.

5. Limit Government Committee is also an
association of Florida citizens, including

- 59 -

George Schulte and others, which has expended
funds and labor to promote and sponsor the
adoption of Amendment 1. It is also
registered pursuant to Section 100.371(3),
Fla. Stat. As the first political committee
to file the "Citizens’' Choice on Government
Revenue” initiative petition with the
Secretary of State of Florida, it was
designated pursuant to Fla. Admin. Code
Section 1C-709, as the sponsoring
organization of Amendment 1.

6. Pursuant to Florida Constitution,
Art. XI, sec. 5, and law, Section 100.371
Fla. Stat. and Section 1C-7.10, Fla. Admin.
Code., the proposed Amendment 1 was placed on
no other ballot.

7. In the state court proceeding
initiated by Defendant Martin Fine the
Respondent therein, George Firestone,

Defendant herein, stipulated jurisdiction by

- 60 -

filing a "Consent to Entry of Show Cause
Order" concurrently with Fine's original
petition, even though Pefendant Firestone had
determined not to defend that suit. When
Defendant Firestone then filed his response
indicating he would not defend, the
Intervening Plaintiffs moved to substitute
parties in whole or in part, or to add the
Intervening Plaintiffs as parties respondent,
Whereupon Defendant Fine opposed the motion
to substitute parties.

8. Intervening Plaintiffs’ rights to due
proess under the Fourteenth Amendment to the
United States Constitution were denied
because of the non-adversary and collusary
proceeding in the state courts. Motions and
demands they expressed an intention to make
(motion to dismiss, demand for a jury trial)
were made unavailable to them, without even
any ruling of denial thereon.

- 61 -

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9. Intervening Plaintiffs' rights to
equal protection under the Fourteenth
Amendment to the United States Constitution
were denied them, by the granting of Defendnt
Fine party status in the state courts (when
he alleged he was a "citizen and taxpayer"),
While they were denied party status in the
same case after allegation they’ were
"citizens, taxpayers, and electors” and that
they were among the sponsors of Amendment
1. Procedural rights cannot be granted to
some litigants and arbitrarily and
capriciously denied to others.

10. The decision of the Florida Supreme

Court in Fine v. Firestone on March 27, 1984

was contrary to numerous precedents of that

Court, amounted to “issue exclusion” from the

ballot, and was content-based discrimination

based on the Florida Supreme Court's reading

of Amendment 1 to invidously classify and
- 62 -

restrict Amendment 1 in the pre-election
prior restraint stage as the speech and
assembly and associational and voting rights
(fundamental rights) of the Intervening
Plaintiffs.

COUNT II

1. The Complaint is this action, Count
II, paragraphs 1 through 9 is incorporated
herein as if fully set forth.

2. The allegations of the foregoing
paragraphs hereinabove are incorporated
herein as if fully set forth.

3. Intervening Plaintiffs relied not

only on the Weber v. Smathers, 338 So. 2d 819

(Fla. 1976) and Floridians Against Casino

Takeover v. Let's Help Florida, 363 So. 24d

337 (Fla. 1976) cases, but also numerous
decisions of the Florida Supreme Court that
that court is bound to follow the established

law. Gilliam v. Stewart, 291 So. 2d 593, 594

- 63 -

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Alt St Ot ad — é “a | While appellants did not seek leave to
appear before the Florida Supreme Court,
perhaps because the appellate court upheld
the proposal, they did proceed as amici at
the behest of the court. Thus, the state
courts had the benefit of appellants’

arguments throughout the state proceedings.
- 86 -

"injunction against the Secretary('s)
decertifying Proposition 1 or directing its
recertification." The district court granted
appellants’ request for an advanced final
hearing on their motior for injunctive relief
and, after conducting such hearing, held that
appellants had failed to state a claim on
which relief could be granted. Appellants
now appeal.

Our task is two-fcid. First, we must
consider whether the allegations stated in
the complaint are sufficient to invoke the
limited jurisdiction of the federal courts.
Second, we must decide whethe appellants have
stated a claim on which relief can be granted
such that the district court abused its
discretion by denying injunctive relief on
that ground. To summarize our conclusions,
we hold that the complaint properly invoked

the subject matter jurisdiction of the

- 67 -

federal courts; however, appellants have not
stated a claim on which relief could be
granted. Thus, the denial of injunctive
relief does not constitute an abuse of
discretion.
I. JURISDICTION

Appellee questions whether the federal
courts have jurisdiction to consider the
claim stated by appellants’ complaint.
Federal subject matter jurisdiction is
determined by the face of the well-pleaded

complaint. Phillips Petroleum Co. yv. Texaco,

Inc., 415 U.S. 125, 127-28 (1974); Gully v.

First National Bank in Meridian, 299 U.S.

109, 112-13 (1936). Further, all well-
pleaded allegations must be taken as true for
purposes of determining the existence of

federal jurisdiction. See Goosby v. Osser,

409 U.S. 512, 521 n.7 (1973) (citing
authorities).

- 88 -

Here, appellants have alleged a
deprivation of their first amendment right to
vote as well as their fourteenth amendment
rights to due process and equal protection.
See Record on Appeal at 6 and 80. # These
allegations, whether sufficient to state a
claim for relief, are adequate to invoke
federal subject matter jurisdiction. See

Goosby v. Osser, 409 U.S. at 521-22. Thus,

we find that appellants have stated a claim
that is cognizable under 28 U.S.C. section
1343 (3), the jurisdictional counterpart of
42 U.S.C. section 1983.®
II. INJUNCTIVE RELIEF

The relief requested of the district
court was an order "granting an injunction

®Because both parties have impressed
upon this court the need for an early
disposition of this appeal, we abbreviate our
discussion of the jurisdictional issue and
proceed to consider the merits of appellants'

claims.

= 89 -

against the Secretary('s) decertifying

Proposition 1 or directing its

recertification.” Record on Appeal at ‘i*

7 Appellants also asked the district
court to “declare that (their) right to vote
on Proposition 1 cannot be affected by straw
man litigation." Record on Appeal at 11. In
essence, appellants claimed that the state
proceedings were non-adversarial, because
Secretary Firestone declined to defend the
merits of the proposed amendment, and,
therefore, that the Florida Supreme Court
decision should be declared void. See Record
on Appeal at 152-54.

In a quite different context, this court
has recognized that principle that a judgment
produced by nonadversarial proceedings is a
mere form and not binding on other courts.
See Aerojet-General Corp. v. Askew, 511 F.2d
710, 720-21 (5th Cir. 1975) (analyzing
precedents). Aerojet-General, however,
involved state proceedings instituted to
avoid the effect of a federal court decision
adjudicating title to land in Florida.
Noting that the Deputy Attorney General for
the state had admitted the nonadversarial
nature of the state court proceedings, the
Fifth Circuit held that it was not obligated
to follow the state court ruling in favor of
the federal court defendant. Id. at 7821.
The present case, unlike Aerojet-General does
not turn on whether the prior state court
decision is entitled to res judicate
effect. Appellants were not parties to the
proceedings in state court and cannot be
bound by any judgment rendered there.

- 90 ~

The Griffin Court analogized to Briscoe

v. Kusper, 435 F.2d. 1046 (7th Cir. 1970).

In Briscoe candidate nominating papers for

city alderman elections were invalidated by
the Chicago Board of Election Commissioners
on the day before the scheduled election.
The commissioners struck certain nominations
on the ground that they contained improper
duplicate signatures and failed to include
middle initials for signatures on_- the
accompanying petitions. In doing so, the

commissioners announced a sharp break from

Absent an argument that the district
court was bound by the Florida Supreme Court
decision, appellants had no_ grounds for
requesting the court to declare tha decision
void. Federal courts have no appellate
review authority over judgments of state
courts. See, e.g., Chicago, R. I. & P. R. R.
v. Stude, 346 U.S. 574, 580-81 (1954);
Reynolds v. Georgia, 640 F.2d. 702, 703 (5th
Cir.), cert. denied, 454 U.S. 865 (1981).
For this reason, appellants could only
request injunctive relief; no declaration
that the Florida Supreme Court's decision was
void was available.

- 9] -

prior policy and effectively precluded the
candidacies of those who had relied on
earlier Board interpretations. Under these
circumstances, the Seventh Circuit held that
candidates and voters had been
unconstitutionally denied the right’ to
participate in aldermanic elections by the
last minute policy shift. The court declared
those practices violative of the first and
fourteenth amendments and enjoined the future
use of such procedures. Id. at 1048, 1058.

Appellants argue that Griffin and

Briscoe are indistinguishable from the

present case, but we find two important
distinctions. First, the federal rights

vindicated by the First

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1888%3A2. Public record. Not legal advice.