Petition for A Writ of Certiorari — Ruscito v. Schaffer

Supreme Court brief1971

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What actually matters in this document.

Text

5 \

Opinions F 2 *

F 2

Constitutional and Statutory.

Provisions loo.

Questions Prememted ssc cccccccccccccceans

Statement of the GhOOeccccccccccscccacs

Jurisdiction VB. Justiciability......

. The reach of Williams e. Rho@es......

Gn a practical philosophy of con-

Stitutional interpretation.......... 12

7 ‘

‘The Lower Courts frred in Pailing :

to Convene a Three Judge Court....... 17

Wy the Writ Should Be rente. . 19

ose s w „

nr. eee ee eee 21

‘

TABLE GF AUTHORITIES:

Cases:

Wer v. Midland County, 390 U.S. 474,

16560 — cece ceneeeseeeeesescees 8

Baker Ve Carr, 369 9.8. 186. 200 7,8

115. ——U—G—g!JͥW——V—V 16

: ua

/ : :

Sell v. Reed, 327 9.8. 678, 682 (2988).

9 v. Pathe Exchange, 263 9.8.

li. tan. ...es

| California Water Servite . v. City

of Redding, ‘304 v. 8. 282 sed. e.

Bre@ Scott v. Sandford, 00 U.S. 393

GU hc pacccccccceseccsccececescccce

Gibbons . Ogden, 9 Wheat l. 6 b.. 23

„rr.

. 372 U.S. 368 (1962)...

Green v. Board of Btucation, 380 Po

5. ase (2na ..... oe eee

aner. Junior College Dist., 90

Sup. Ct. Pl: 25 &.88.28 45 (2970)...

Robson v. Hansen, 252 F.Supp. 4 (b. b. c.

. Union Pree School Dist. Bo. 18

379 F2a 491 (2nd ChE. %% cccee

NcPherson v. Blacker, 146 U.S. 1, 23-26.

Miranda v. Arizona, 384 U.S. 436, 321

| RBBB) .nrccccccccccccccscccccccccccccs

A Pn ce dela

141

Moore v. Ogilvie, 394 v.88. e1e (2969)..

Poreeky, G&& Parte, 290 ¥,8. 30 (2933)..

Reed Enterprises v. Corcoran, 354 ria

8 (1965 b.. )...

Reynolds v. Sime, 397 9.8. $33 (2964)...

| Sailors v. Board of Baucation, 907 U.S.

205 RR

Schneider v. Rusk, 372 U.S. 224 (1963).

Weeberry v. Sanders, 376 U.S. 1. 7 >

e i

Williams v. Rhodes, 393 U.S. 23 (1968).

a — 3

Yourlg, Ex Parte, 200 U.S. 123 (1908)...

Statutes: or

BB Bl. OM. 1900 . e

26 v.8.C. Sec. ate oc ee

28 u. 8. c. Sec. TB cccccccccecccccdcce

20 9.8. c. Sec. BBB eo . e

‘

20 . 8. c. Sec. 2 ee eee esses eee eces ees 2,17

, iv ‘ ; mag

28 9.8. c. Sec. 22ꝶ³4ꝶ23232 . 2,18

* 28 93.8. Cc. Sec. BBR ccocccecesesesessccses 2

; 42 J. 8. Cc. Sec. 1³³•6 e 2

2. Conn. Gen. Stat. Sec. a, 2

Conn. Gen. Stat. Sec. 453, 284 .—.—[̃—— 4.5

J. 8. Constitution, First, Fifth and

Pourteenth enen. 2. 13

8 *

2 ee ee

judgment of United States District Court

for the District of Connecticut mich dis-

missed petitioners’ complaint on the grounds

The opinion of the United States District

Court. is printed as Appendix A to this pe-

' tition. The decision of the United States

Court of Appeals for the Second Circuit is

printed as Appendix B to this petition. It

is believed neither decision is reported.

JURISDICTION

The effective date of the judgment of the

United states Court of Appeals for the Sec-

ond Circuit is January 4, 1971. The juris-

diction of this court is invoked under 28

U. 8. c. Sec. 1254.

rr CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioners maintain the judgment of the

court below denies them the right to peti-

tion their government through the election

process. By restricting the ability to

place questions on the official ballot to

legislature (Conn. Statutes Sec. 9-369),

Connecticut unreasonably burdens the right

of individuals to associate for the ad+

vancement of political beliefs.

Petitioners rely upon the First, Fifth

and Fourteenth Amendments to the Cons titu-

tion of the United States; Title 28 U.S.C.

Sections 1343(3) and (4); 2201, 2202, 2281

5 2

pe >. — M

n * 2 4

(a) Do the federally protected rights .

(the right of individuals to associate for

the advancement of political beliefs end

the right of qualified voters, regardless

i of their political persuasion, to cast

their votes effectiveiy), asserted in wil- ;

11 ». Rhodes, 393 U.S. 23 (1998), govern |

| the states’ election processes generally,

or are they limited to the selection of

presidential electors?

ee fo eee

(b) Must a state provide a minimal elec-

tive framework within which diverse politi-

cal groups can compete? If so, does that *

minimal framework incl the right to put

‘a question on the ballot by petition, when

that minimal framework includes the right

to place an independent presidential candi-

{date ow the ballot by petition?

* — eee Pre

> \

stantial as to defeat federal jurisdiction?

a °

(4) Can a single district judge dismiss a

complaint seeking to convene a three judge

court upon his finding the question present-

ed is “monn justiciable”? 2

political beliefs asserted in Williams v.

Rhodes, 393 U.S. 23 (1968) requires the state

only to independent presidential candidacies —

but also to single issue groups.

- They requested the Secretary of State pro-

vide them with official petition forms to ob-

tain the same number of voter signatures to

sponsor their question as are needed to spon-

sor an independent statewide candidacy.

(Conn. Statutes Sec. 9-453, 454) Upon

the Secretary's refusal to provide official

forms of petition, they brought this action.

% The District Court dismissed the action

as “non justiciable”. The Court of Appeals

affirmed, holding | applied only to

the selection of pres mtial electors.

Jurisdiction vs. Justiciability

It is always disheartening for a lawyer to

attempt to frame pleadings artistically, to

_ labor over language only to heve the court

. ignore the issue pr and Gecide a dif-

ferent case.

J ;

The fourth peregraph of — demand

for relief reads:

—_—

—— visemes ec

when it stated: 7

“The three plaintiffs represent

requested the defendant Secretary a.

eee te them the official pe-

tition f entitling them to have

— ies a6 he

next state election on November 3,

a: the following questions

“fhe United States, ten,

. Should immediately withdrew 211 of

’ des forces from Southeast Asia,

After reviewing petitioners’ ciaims, the

District Court concluded:

„ene court finds that the

complaint presents n non-justi-

ciable political question and is

accordingly dismissed, ig

i (Appendix A, p.2a)

The Second 5 ‘described petitioners’

claim as :

“Appeal from dismissal in the

United States District Court

for the District of Connecticut,

T. Emmet Clarie, Judge, of ac-

tion seeking to force Secretary

(Appendix B, p.7a) .

The appeals court then stated:

"fhe (district) court found no

substantial constitutional ques-

tion raised, declined to convene

a three-judge court, and dismissed.

the action for lack of jurisdic~

. cooooe”

(Appendix B, p. 8)

While the English language is ambiguous

at best, a reading of the District Court's

opinion reveals no finding of insubstanti-

ality. The District Court did say:

. 8

ss „ teenie i i a a Rae SN:

„he separation of power among

the three separate magistracies of

constitutional government will not

permit this court to substitute its

judgment for the deliberations of

the state legislature,” F

(Appendix A, peda)

Non-justiciability infers both jur isdic- i

tion and a substantial claim. Had either

court found the claim frivolous or insub-

stantial, it should have found for the

defendant on the merits, ker v. Carr,

369 U. 6. 186, 200 (1962); 11 ». Hood,

327 U.S. 678, 682 (1945); Binderup Ve

Pathe Exchange, 263 U. 8. 291, 305 (1923).

Whether a complaint states 4 cause of ace

tion ts a question of law to be decided

after not before the court has assumed

jurisdiction over the controversy.

Under the criteria enymerated in

(p.226), the petitioners’ claim is jus-

tie table

1) The question is one of the consis=-

tency of stete action or non-action with

the federal copetitution. :

2) The quest fon is not one which is .

decided or to be decided by a branch of

government co- equal with this court.

3) The court, by deciding this case,

does not risk embarrasement of our govern-

ment abroad or grave disturbance at home,

4) The court need not enter upon a pol-

icy determination for which Ringe An

2 standards are lacking.

The cases following Baker applies federal

standards of fairness to state voting Stand-

ards. Gray v. Sanders, 372 U.S. 368 (1962);

_ Wesberry’v. Sanders, 376 U.S. 1 (1963);

Reynolds Ve Sims, 377 U. s. 533 2 83211

ors. v. Board of Education, 387 U. s. 105 —

(1968); Méore v. Ogilvie, 3 394 6.8. 814 (1969);

- Hadley v. Junior College Dist., 90 Sup. ct.,

791, 25 L. a. 2d 45 (1970).

The justiciability of federal constitu-

tional controversies involving state elec-

tion procedures is so settled, Ohio's as-

sertion of non~justiciability in Wiliioams,

was summarily dismissed by this court.

"Ohio's claim that the political

question doctrine precludes judi-

cial consideration of .these cases

requires very little discussion.

Thet claim has been rejected in

4 caseg of this kind numerous times, |

It was rejected the court unani-~

mously in 1892 in che case of Me- x

Pherson v. Blacker . 6. 1, 23-

24, and more recently it has been

squarely rejected in Baker v. Carr,

369 U.. 186, 208—237 (1962), and

in Wesberry v. Sanders, 376 U.8. 1,

5-7 (1964), Other cases to ty

same effect need not now be cited,

These cases do raise a justiciable

controversy under the Constitution

and cannot be relegated to the po-

litical arena.”

Williams v. Rhodes, 393 U.8. 23, 28 (1968)

“The reach of Williams vy. Rhodes

Petitioners rely entirely upon her i-

rion of thie court in Williams v, Phodes,

supra, They contend Williems, with ite

enmmeration of “,...two different although.

overlapping, kinde of righte ~ the right

of individuale to asesoclate for the ad-..

vyancement of polltteal bellefe and the right

of qualiftted votera, regardless of their pow

Jiteal persuasion, to cast their votes ef-

fectively...” upholde a minimal federal con.

etiteuttonal’etandard for etate elertion

1 „% 5

Both lower compte limited Willlame to the

election of presidential elertorea, The 1 1

171 17 0 („nete eee

. . Williams ie Aietingulshable

Jrom thie case in that there the

Kupreme Court held that etate laws

enacted pursuant to the command of

Art. II Bev, I of the Pederal Con-

stitution ty requiate the selection

of presidential electors must meet

the requirements of the equal pro-

tection clause once they are enacted,

(Appendix A, p. )

The appeal court's construction was et

narrower t

"Plaintiffs attempt to bring. this

case within the rule of Williems .

— —

„ee, 399 0,8, 23 (1968) hold-

ina that state laws requiat ing the *

selection of electora mat meet the

requiremente of the Raquel Proteetion

Clanee, hey fail, however, to dam

onetrate any relationship between

the viaht of voters not to be umbuly

pertricted in their chotee of „„ „„

Ahten for oifice and the expreseion

of apinton eoudht here, att hor ined

by no state oF feteral etatute or

ponetituttonal provision, They have

heen unable #0 tdentify any federal

eonetitutsonal right dented them

here,” 8 ö 65

(Appendix , pea) 4

What te the rene h of Will Lame ? nn ite

important freedome apply only to the elec

tion of yy eridential elector® or met a

state prov ide acoenr io the ballot of an

independent candidate for governor oF ale

german? Do we have one standard of faire-

ness for federal elections and anot her for

state, or ie the freedom to assoc late

aviilable to evry citigen at all the myri-~

ad levele of government?

The appeals Court also perceived no con-

nection between choice of candidates and

expression of citizen opinion, „ simplis-

tic attitude in „ complicated age, There

in no such thing as a one issue candidete,

and because of this political campaigning

is eustomarily abstract with no discussion

about specific techniques for implementing

of fice=seeking generalities. Limiting eco

n to the election process to independt-

ent candidates restricts the officeholders

responsibility to those who actually voted

Sor him To say the quality of represente-

tion would. not be improved by a valid ex-

pression of public opinion through the elec-

tion process te to iqnore reality.

(

The appeale court saw no relationship o-

tween the right of voters not to be re-

stricted in their choice of voters and the

expression of opinion sought by these peti-

tioners. tt 414 not indicate the relation-

ship sought. tf a judge does not under

stand many governmental decisions are made

by bureaucrats accountable to no one but

their superiors, if he iqnores the tumult

in the courthouse Lobby, then no adequate

demonatration can be made to those who will

not see,

The summary refusal to consider a citizen

vote on specific issues may indicate the

lower courte’ reluctance to risk embarrase~

ment of government agencies, What happens

te Paris negotiators who play poker with

men's lives, or the State Department ex-

perte willing to push on with the blood of

other men's sons should their policiés be

repudiated at the polls? The possibility

of Aisturbing bureaucrats should not de-

prive the citizen of his right to express

himself in a meaningful fashion.

The appeals court found no federal cone .

“stitutional right violated, though the pe-

titioners relied on the right to petition

the government (one of the most important

—— — —

freedoms), as well as the time honored am-

; biduitier of due process and equal protec-

i tion, Tf the court expects petitioners to

. point to specifie constitutional language,

they place an insurmountable burden upon 411

efforts te modify or create constitutional

riqhte to accommodate social ehange, Strict

conefiruetion, in this sense, jaqanores the fact

chande on eonetitutional etandards has been

the obliqation of the courte from the very

beqanning., Pederal supremacy wan not an

Hliele of Meeeronetitution until Chief June

tice Marehall said if was, The protection

of independent presidential candidacitern wan

nol a responsibility of the states until

thie cont maid it wan,

To hold that Williams applies only to

; presidential candidates and does not en-

compass either noneprenidential candidates

‘ oO Access to the lot by single issue

) groupe thinauah ¢ ame petitionary pro-

0 ,² 16 to J mnecessary and wrong

limitations on the expansion of political

freedom inherent in that opinion,

OFA practical philosophy of

constitutional inte etati

The arguments between those who believe

courts must take positive action to correct

social wrongs and those who believe courts

exist to preserve the status quo has de-

veloped into a quarrel between what is calle

ed a strict or a loose conetruction of the

constitution. Propriety lies between these

extremes, There are occasions when a jue

dicial change of constitutional standards

is required simply because the "people" have

no remedy in the other branches of govern-

ment,

The obligation of this court to make

new law and new policy under those clroeume

stances was stated with comeundable candor

by Justice White when he wrotes 8

"That the\Court's holding today in

neither nee nor even strongly

suggested by the language of the

Fifth Amendment, is at odde with

American:and English Legal history,

and involves a departure from a tong

line of precedent does not prove ole

ther that the Court has exceeded ite

powers or that the Court ie wreng or

unwise in its present reinterpreta-

tion of the Fifth Amendment, Tt

dows, however, underscore the obvie

ous = that the Court has not dite

covered or found the law in making

today's decision, nor has it derive

ed it from some irrefutable sources)

what it pie done js to make new daw

ond new public policy ip mueh the

of interpreti at © fh

af the Constituts

she Court historically hae done.

Indeed, it is what 36 muse Jo and

will continue to do until) and unless

there is some fundamental change in

She consti :

ntal powers.” — added)

Miranda v. Av vona, 3864 U, 8. 436,53) (1966)

N 5

If a judge sees himself as interpreter

of law created by others, he must refuse

to create "new public policy” because this

encroaches upon territory his philosophy

allots elsewhere, Should he take a longer

perspective, he will see history's fond ree

nembrance is reserved for judges who en-

courage the painless arrival of the future,*

Discount the blurring effect of time and

you cannot minimise the courage of Marshall,

whose implementation of his vision of a great

Hingle nation may have tnapired some Torles

to paint "Impegcoh John Marshall” on their

bugyles., History smiles on his memory be»

couse hie Vielon was sound and he had the

courage of hile viston,., Chief Justice

Yoney, in Dre Beott v, Bandford, 60 . 6.

399 (1050), may have seen himself as

courageous, bucking the abolitionist

tide, but his vision wasn askew, He for-

How no desegregation decision when he dese»

troyed the Missourl Compromise,

An analysis of history's reaction to Mare

Bhall ond. Taney provides practical eriteria

for the exercise of this court’s power to

change constitutional standards:

(1) Is relief available in another

branch of the government? Is there an adee-

quate, or any, nonejudicial remedy? —

% „ judges must exercise, In tho examina

tion of the subject, that undetstanding which:

- Providence hat bestowed upon them, with that

independence which the people of the United

States expect from this’ department of che

government...’ John Marshall in Gibbons v.

Ogden, 9,Wheat 1, 6 L.2d23 (1824) at p. 68

AR dat Tp Se

(2) Are there compelling reasons for the

change in constitutional standards, a moral

“or political vacuum urgently in need of ‘fille

ing?

(3) Is the constitutional end product

historically sound? Wil) it encourage us

towards the society our children will have?

This involves prophecy, always an uncertain

business, but history appears to support the

Jeffersonian point of view, that the "come

won” people can be trusted to be free, De#

„ton which encourage’ individual liberties

— permit ene participation in the pube

lie processes, as a matter of historieal

probability, will most Iikely be vindicated

by the future, ©

(A) Will the change in constitutional

standards upset traditional power Tut on-

ships to the extent the prestige of this

„Gurt can be damaged? In other words, can

you get away with it?

This consideration is the most important,

and though not found in reported decisions,

in the basis for the doctrine of non juse

ticlability, mis court makes decisions,

but relies on others to enforce thiem, Of

ten, those others are the people whose per-

sonal power the court's decision seeks to

curb. What if the court held the Vietnam

War unconstitutional and the president ro-

fused to stop? What if Illinois was order-

ed to reapportion and did not? These ques-

tions illustrate that the court in changing

constitutional standards must rely on the

— a ee

7 4 5 ¢

ultimate repository of political power, the

people, When a “judieiat decision etreum-

scribes an individual's or group's politt-

valor soclal power in favor of another tne

Liv aloo group, that trapsfer mist meet

with the approval of a substantial seqment

of tite publie, The judietal hold on public

opinion hos been strengthened by the advent

of televinion, Traditional politietans are

reluctant d oppose a court deelston whieh

meetle with wide, If not unanimous, popular

approval, Thus, though party politietans

regretted Williams and the loosening of the

two porty hoido on polittieal power, not one

could oppose a decloton o clearly in the

American tradition, so oppoged to "bows"

pule,

(5) Ju the change of Gantt tutto!

„eee eee? Cases creat ing “

problem of retroactive applleation should

be avolded, :

Under this practical philosophy the Su»

preme Court operates as 4 soclal safety

Valve, a forum where tensions find relief,

When coordinate branches of qovernment

cannot or will not satiafy immediate poe

itte needa, The founding fathers reae

lived men who eceupy positions of power are

peyehologieally ineapable of yielding that

power, The reasons are unconscious and

gomphicated but they explain the undemoe

feratic conditions in Baker persisting from

190) despite constitutional provisions te

the contrary, One cannot reasonably expect

„ legislator to reapportion himself out of

office any more than the average state ju-

Jiclary can be expected to take an active

role in correcting local political abuses,

Unfortunately, change Le not without ites

erition, There are those, usually those

Whote portonal power is endangered by change,

who hee wnorlal rearrangement as dangerous,

Uileashing forces held in cheek by former

comptitutional interpretations, Thus, this

court be blamed for the inerease in erime

“ao though criminals have been enticed to a

bife of crime becuse blleqally obtained

evidence can no longer be used against

en,

eee greeting this court's entry

into the "political thieket" indicates a ,

popular aceeptlunce of the role of the court

an protector of the Jeffersonian tradition,

Decisions whieh broaden general participae

jion in publie concerns replenish the wel)

springs of our freedom and assure this nae

tion's continued greatness,

THE LOWE COURTS ERRED IN PALLING

VO CONVENE A THREE JUDGE COURT

The history ond interpretation of the

Htututory language which authorized threee

judge courts supports the assertion the

practical aspect of judicial decision is

more important than the legal. The orie

ginal three-judge statute (28 U, 8. c. 22#1)

won inspired by ex parte Young, 209 U.S,

123 (1908), which permitted federal re-

straint of state legislation. It is more

than coincidental the section extending

the three-judge concept to federal legis

lation (28 U. 8. C. 2282) came twenty-seven

years later, also inspired by political

turmoil, the repeal of New Deal legisla-

tion by the federal courts, Because the

claim for a three-judge court is connect-

ed with the expansion of constitutional

rights; the decided cases are not without

inconsistencies, Green v. Board of Elece

tions, 380 F2d 445, 448 (and Cir. 1967),

There is one thread, The sole ground

for dismissal of three=judge claim by a

single judge is-obvious lack of merit, a

cutegory that does not yet include politi-

cal non-justiciahility.* Schneider v. Rusk,

372 U.S. 224 (1963); Ex Parte Poresky, 290

U. 8. 30 (1933); Kramer v. Union Free School

Dist No, 15, 379 F.2d 49] (2nd Cir, 1967);

Reed Enterprises v. Corcoran, 354 F. 2d 519

(1965 b. c.) Hobson v. Hansen, 252 F.Supp.

4 (p. Dp. c. 1966),

The District Judge, acting alone, was

without power to dismiss petitioners’ com-

pla int.

*"The lack of substantiality in a federal

question may appear either because it is

obviously without merit or because its un-

soundness so Clearly results from the pre-

vious decisions of this court as to fore-

close the subject." California Water Ser-

vice Co. v. City of Redding, 304 U.S, 252

(1938) :

Why the writ Should he yranteds

* ‘The courtroom of the Becond Clreult ie

on the seventeanth floor of the courthouse

on Foley Bquare, Bilent and eleqant, bt

is somehow removed from the security quards

in the lobby who demand identifleation from

11 entrants and Bearch all bribeteunon, Ft

in peaceful and if a judqe de not eareful,

he may come to believe the cablniesu and Ope

der of his days reflects a Cadlmioand ordered

noclety, He has but to enter bin bulladng

through the front door to reallye enn

ond deliberation have albll but deserted our

politdeal dialogue,

We are agonivzed beeause of the amblyoue

ty of the political process, In bead

Lyndon Johnson was ao "peace" candidate,

who would not send Americans to fight

Avian battles, The rest is historys rale

lien, if you are for us, turn on your

headlights; then petitions » finally,

bombs end bloodied draft cards, Faroe,

hubub, sound = fury » signifying nothing

but an increasing level of frustration and

violence,

The petitioners’ proposal may not solve

every social problem, but it would return

the furer over the war and other social

iusues to the voting process, &8hould poe

titioners succeed, cooperating eitigens'

groups could place the identioa) question

on every ballot in the nation, ironically

following in George Walkice's& foutetepe,

More important iy, the result, a valid vote,

would be the most effective petitioning

proces yet devitod,

The Dintriet Judge belleved present tech»

niquen for petitioning the qovernment are

4 ft.

„„ „ „ e Cthe petitdonern) have a

eee right! to et en te

ene and adequate etre!

Avene een Open CO them ee

(Appendix A, peda)

Obyvioundy, the jJudqe han not parted pated

jn Vigile, laned petitions, or taken the

traditional steps to make "“qovernnentad

et“ conmlotent with popular desires. That

theme traditional getivitios have not ace

complithed a change dno publble polley, does

not mean a majority of elitivens are satise

fied with present publde pollelen, Tt

means elective pollties ylelde no onswersy

Jt wanes "“qovernment” has become diseconnacte}

ed from a people qrowing iInereasingly reste

ohn, Now Je no time to take refuge in

et one,

If we take refuge at all, let it he in

our heritage, in our faith in the voice

Of the people, bet un adinit the white and

black radicals who, with clenched let,

shout "Power to the People", are but fole

lowing the Amer can tradition and eehoing

the likes of Jafferson, Franklin ano Puine,

In 1776 representative government was a

revolutionary step away from monarchy,

Today the "people" want a qreater voice

in their government, Byventually they

whall have it, The petitioners! suqqestion

of a more effective method of petitioning

thelr représentatives-ia an evolutlonary

change towards the day when electronte

referenda may be a daily oecurrene „„ Po»

titionersn week no leqal affteet of thelr

vote, no binding determination, just a

better way to advise elected reapregentae

tives of the kind of representation the

poople oxpuret,

CONCLUSION

Vor these reasons, then, this Court should

=~ and petitioners respectfully request that

it dn = Ane ite writ of certdorar|) toa

review the jJudqnent of the eourt helow,

Respectfully submitted,

Bdward FP, Kunin

2465 Golden Hill Street

Bridqeport, Connecticut

Counsel for Petitioners

Dated: January 2), 197)

INDEX ‘VO APP ENDER

Mienen of the Ui bted Bt ten

Dieto det Compe tf Dba tae bet ob Chon

neve’ PT Rede poo e 6 0 „ 0 00 06 0 0 0% % 0 „ „„ 60 „ 60 60 60 0 0

ieee ieee neee feta teen

enn e Ane fen — 611 e

rent “a a ay a ae ö

far

APPENDIX A

OPINION OF THE

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Civil No, Be%6

* or = *

ANTHONY J, RUSCTITO, JAN

VOMASST and ROBERT K, DUBROFP,

Plaintiffa,

Vie

BLLA T. GRASSO, GAV oF

THE BYATE OF CONNECTICUT,

Defendant,

RULING ON PLAINTIPPS' MOTION

POR THE APPOINTMENTP OF A

THRE JUDGE DISTRICT COURT,

AND DEV ENDANT'S MOTION 7

DISMISS f ;

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1 x“? er wo

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The three plaintiffs represent that they

are citi#ens of the United States and all

ave Conmectiout voters, They allegé that

they have requested the defendant Secretary

of Btate to mend them the official petition

forma entitling them to have placed on all

voting machines in the next state election

—

appendix A.

on Noverber 3, 1970, the following question:

“THE UNTTED STATES, UNTLATSRALAY, SHOULD

TERDIATELY WITHDRAW ALL. OF TTS Forces

FROM SOUTHEAST ASTA, SOUTH tren. LAOS,

ht AND THATLAND, .WHETHER OF NOT A

NEGOTIATED SHTTLENENT 15. REACHED.”

* 8

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The defendant von tefured said request on the

grounds that Connecticut law makes no pro-

vision in its statutes for such a statewide

initiative or referendum. The plaintiffs re-

quest thet a three-judge district court ve

convened for the purpose of enjoining the

enforcement and operation of the Connecticut

BKlection Laws, Conn. Gen. ate, title 3, -

insofar as they fail to permit a citizen of

said stete to petition his government in

this manner. The plaintiffs allege that

to deny them this right would violate their

first amendment rights to free speech and

association, as well as the fundamental

. right of every citizen to petition his gov-

t and it would serve to deny them

cqunh Geutashinn Gf the human Gyn goe- =

cess. Im addition to responding to plein-

tiffs’ motion, the defendant has moved to

Giemiss the complaint and the parties ere.

in agreement that both motions may be prop-

erly considered at this time. The Court

finds that the complaint presents a non-

justiciable political question. and is ac

cordingly diemissed.

The Supreme Court in Baker _y. Carr. 369

U.S. 186, 217 (1962), summarized the po-

litical est un @octrine as follows:

. f 2

the surface of any case, held to ine

volve a political question is found

@ Lack of judicially discoverable

and e stendards for re

solving itt or the impossibility

iding without an initial

policy determination of a kind j

; clearly for nonjudicial diséretion:

or the impossibility of a court's

undertaking independent resolution

without expressing lack of the

’ the potentiality of embarrassment

from multifarious pronouncements .

by various departments on one ques=

| imextricable from the case at bar,

there should be no dismissa) for non-

justiciability on. the ground of a po —

litical question's presence. The doc-

Trine of which we treat is one of

want ie cath legung

The isrve presented clearly falls within

the prohibited politica question ares —

hereinbefore referred te, Whether or - not

Conmecticut, as a matter of policy, should

establish a procedure which would allow a

Public. opinion question such at the ond

involved here to be placed on the voting

wachine it a matter solely for the Con

not tut Legislature. Tt is within ite

power to initiate those policy decisions

Which“are necessary if ‘such procedures are

found to be desirable. Should it decide

this question ‘affirmatively, it then be-

Comes the prerogative of that body to es-

tablish workable standards and procedures

for such referendums. The separation of

@ Power among the three separate megistra-

cies of constitutional géovermment will

Nothing in the Challenged statutes vio-

letes the plai-tiffs' right to freedor of

ore

2 Appendix A

Rpeech and —ů 22 es it

ently have o “fundamental eight” to et-

tion their government ana afequate politi-

eal Wen remein open te them, heir

equal protection armament repremente that

the eonet tiation presently allows politi-

Cal candidates not voce by eb ther ma jor

Political party to place their names on

the val for President of the Unten

States, bo the chal benged Btatuter. do

not Permit citivene to plece teevee of

overwhe lining public importance on the ba

lot by the same method. tH making this

argunont, Plaintiffs rely on Bil Liams vy.

Mur, 393 U8. 23 (2968), is

distinquisheble from this care in hat

there the Supreme Court held that Btate ee

laws enacted purewant to the command of é

Art. TT, B 1 of the Pederal Conetitetion

to regulate the selsction of presidential

electors must meet wwe requirements of

the equal protection clause once they are

enacted. No similar constitutional come

mand ie present here. The Pleintiffs'

propored referendum morely seeks an a-

visory public opinion poll from the vot=

ers of the state, on an iscue involving

foreign affairs over which the state

government has no constitutional author-

ity or control. There is non-existent

here the Same strong considerations war-

ranting constitutional Protection, as is

the right to support the presidential cane

teste of one's choice. The Court furth

er notes that the 1965 Connecticut Constie

0 : 8 +

The action if att need Tor went of jure

enen, ö .

Dated at Hertford, Wen tirut, thir 2 2eh

Way of Joly, 1970, Sa eae >

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MHited Storen Dine, iet Judge

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APPENDIX B_ 3

md OF THE

UNITED STATES COURT OF APPEALS

"ROR THE SecoND CIRCUIT

No. 263 = 2 Term, 1970 4

(Argued December 2, 1970 Decided January 80 .

Docket No. 33303

ANTHONY J. RUSCTTO, JACQUELYN

TOMASSI, ROBERT K. DUBROFP,

_ Appellants, -

“ve ;

ELLA T. GRASSO, SECRETARY OF

THE STATE OF CONNECTICUT,

Appellee. ~ 7

1 0

SS .

Before: Friendly, Smith and Anderson,

1 f 2 Judges.

Appeal from dismissal in the unites. States

‘District Court for the District of Connecti-

cut, T. ‘Emmet Clarie, Judge, of action seek-

ing to force Secretary of the State to place

question on voting machines. Affirmed.

Edward F. Kunin, Bridgepert, Conn.,

for Appellants. |

Barney Lapp, Assistant Attorney | |

General (Robert K. Killian,

Attorney General of the

State of Connecticut, Daniel

R. Schaefer, Assistant At-

torney General, of counsel),

for Appellee +

8 ‘Ja

«oA

PER CURLAM: 3

The three plaintiffs in this case, Con-

necticut citizens and voters, requested the

defendant Secretary of the State to permit

them to place on all voting machines: in the

next state election (since passed Novem-

ber 3) the following question:“ es

The United States, ——— — a

immediately withdraw all of its es

from Southeast Asia, South Vietnam, Laos,

Cambodia and Thailand, whether or not a

negotiated settlement is reached.

S idee Connecticut law makes no provision

in its election Statutes for such a state-

wide initiative or referendum, the de fend-

ant refused the request. ‘Plaintiffs-suved

in the District Court for the District of

Counecticut (T. Emmet Clarie, Judge), re-

questing that a, thr judge court be con-

vene! for the purpose’ of enjoining the.

“enforcement” af the Connecticut election

laws, insofar as they fail to permit the

holding of such advisory initiative meas-

ures, f

6 &

The court found no substantial consti-

tutional question raised, declined to con-

the action for lack of jurisdiction. We

affirm the judgment dismiss ing the action.

er ex - PAY: —

e N a

a * PEPE „

— ae 42

Pressich of opinion sought here, authoriaed

by no state or federal statute or constitu-

tional provision. They have been unable to

denied them here. The court plainly lacked

jurisdiction and a Single judge had the

power and duty to dismiss the action. Green

_ Ve Board of Elections of the City of New

York, 380 F.2d 445 (20 Cir. 1967).

Judgment of dismissal affirmed.

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.