Opposition Brief — Fully Informed Jury Ass'n v. County of San Diego

95 lt | s 26 ‘> Supreme Court, U.S.

. PIL & OD

JUN 24 1996

CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

FULLY INFORMED JURY ASSOCIATION, et al.,

Petitioners,

Vv.

COUNTY OF SAN DIEGO, et al.,

Respondents.

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

JOHN-W. WITT, City Attorney

ANITA M. NOONE, Assistant City Attorney

JAMES M. CHAPIN, Deputy

*MARC J. ROSEN, Deputy

Office of the City Attorney

Civil Division

1200 Third Avene, Suite 1200

San Diego, California 92101

Tel. (619) 533-5800

*Counsel of Record for Respondents

QUESTIONS PRESENTED

1. Whether the City of San Diego is a proper respondent in this

matter.

2. Whether the Ninth Circuit Court of Appeals erred in

concluding that General Order No. 102093 and General Order

No. 2-14-94 were valid place and manner restrictions issued by

the San Diego County Courts.

wee eas

PARTIES TO THE PROCEEDING

Respondent agrees with Petitioners’ list of parties in the

caption of the Petition for Writ of Certiorari. However, it is the

position of these Respondents’ that the City of San Diego and

its Police Chief, Jerry Sanders, should no longer be parties to

this matter.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....ccccccccccccccces i

PARTIES TO THE PROCEEDING .............. ii

py FAe fos yy «5 > Re ° iii

py FP Ee ity 8 dy | > ree iv

OPINION BELOW, JURISDICTION,

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED IN THE CASE ......... 1

SUMMARY OF ARGUMENT .............eee0e. 2

STATEMENT OF THE CASE .nccccccccccccccecs 4

A. The Ninth Circuit Court of Appeals

Correctly Applied the Law Governing

Restrictions on Speech in Public Forums,

and Did Not Create Any Law of Uniformity

in the Law Government Free Speech.......... 7

B. The Case Turns Solely Upon the Analysis

of Factual Findings Made By the District

Court and Affirmed by the Court of

PGE 6 6 bods ctesdcconcrccceseccsesccecces 9

C. The City of San Diego and Its Police Chief

Were Not Involved in the Issuance of the

Orders, Nor Their Enforcement............... ll

D. This Case Does Not Raise Questions of

Exceptional Importance............-+s+eee00. 11

CRI RMIT cb cbevacvaccercveccereceeaveeeeses 12

-iVv-

TABLE OF AUTHORITIES

CASES

Burson v. Freeman, 504 U.S. 191 (1992) ............

Cox v. Louisiana, 379 U.S. 559 (1965).............

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) .. .

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ...

STATUTES AND RULE

42 USA. COCUG Tees 6 So ee cei cee eh ete aeaieds

Fed. R. Civ: P 120ON@) 2 ae

Page

OPINION BELOW JURISDICTION, CONSTITUTIONAL

PROVISIONS AND GENERAL ORDERS INVOLVED IN

THIS PROCEEDING

Respondent agrees with petitioners’ statement regarding

the opinions below, jurisdiction of this court, and the

constitutional provision and general orders involved in this case.

SUMMARY OF ARGUMENT

The City of San Diego and San Diego Chief of Police,

Jerry Sanders were named as parties to the original complaint.

However, there are no allegations regarding any actions by the

City which remain at issue in this matter. The Ninth Circuit was

correct in affirming the judgment of the district court in regards

to City respondents based upon the lack of allegations of any

action on the part of the City and Police Chief Sanders.

In addition, the Ninth Circuit Court of Appeals was

correct in finding that the challenged orders are proper exercises

of a court’s inherent authority to take supervisory and

administrative actions necessary to implement its judicial

functions. The appellate court conus applied Burson v.

Freeman, 504 U.S. 191 (1992) and Cox v. Louisiana, 379 U.S.

559 (1965), in determining that the first regulation was

necessary to serve the compelling state interest in protecting the

integrity of the jury system and is narrowly tailored to achieve

that end. In addition, the appellate court was correct in applying

the standards set forth in Ward v. Rock Against Racism, 491

U.S. 781 (1989), in finding the second regulation a content

neutral restriction narrowly tailored to further the significant

state interest in securing the area around the court house and

leaves open ample alternative channels of communication of

information.

Furthermore, petitioner seeks review of concurrent

findings of fact of two lower courts. There are no novel

constitutional issues to be considered here, and there is no

conflict between any circuits as to the applicable laws and cases.

Therefore this mattter is not appropriate for review by this

court.

STATEMENT OF THE CASE

On October 22, 1993, the presiding judges of the San

Diego Superior and Municipal Courts issued an order in

response to the distribution of written materials advocating jury

nullification to persons entering the San Diego County Superior

Court. Noting that the doctrine of jury nullification is contrary

to law, General Order No. 102093 was issued with the purpose

of protecting the lawful and orderly administration of justice

and the right to trial by jury. The order prohibited the

distribution of written materials to or communications with trial

jurors intended to influence or interfere with the proper

discharge of the duties of trial jurors within 50 yards of the front

~ entrance of facilities within which jury trials are held.

Respondents, City of San Diego and Police Chief Jerry Sanders,

took no part in the issuance or enforcement of this order.

On February 14, 1994, the presiding judge of the San

Diego County Superior Court issued General Order No. 2-14-

94 which ordered the removal of all newsracks located on the

sidewalk bordering the front entrance of the San Diego County

Courthouse within two weeks of the date of the order. The

concern addressed by the order was to protect public safety by

eliminating congestion in front of the courthouse and the

elimination of the detraction from the dignity and appearance

of the County’s main courthouse. Respondents, City of San

Diego and Police Chief Sanders, had no involvement with either

the issuance of the order or the removal of the newsracks.

Petitioners filed a complaint in the United States District

Court for the Southern District of California on July 21, 1994.

The complaint requested a temporary restraining order,

preliminary and permanent injunctions, declaratory relief and

damages pursuant to 42 U.S.C. section 1983. City respondent

was named as a defendant in sliaiuad complaint on the basis

of allegations that the city newsrack ordinaace was

unconstitutional and that the ordinance was cited in the _eneral

order. Additionally, the complaint contained allegations

regarding demonstrations held by members of the Fully

Informed Jury Association near City Hall and near the County

Administration Building. Petitioners’ alleged that a person told

them to leave or the police would be called. There were no

allegations that the police were notified, took any action, or that

the demonstration stopped.

On August 15, 1994, respondent, City of San Diego, filed

a motion to dismiss pursuant to Fed. R. Civ. P. 12 (b)(6) and a

motion for a more definite statement with the district court.

City respondent filed a motion in opposition to petitioners’

preliminary injunction on September 23, 1994, on grounds that

petitioners alleged no action on the part of the city which

violated petitioners’ constitutional rights.

The district court granted respondents’ motion to dismiss

on October 31, 1994, finding that petitioners had alleged no

action on the part of respondents that deprived petitioners of

their constitutional rights. That same day the district court

denied petitioners’ motion for preliminary injunction on

grounds that both orders were valid place and manner

restrictions. Petitioners’ were given leave to amend regarding

the demonstration allegations, which they did not do.

Petitioners’ filed a timely appeal to the Ninth Circuit Court of

Appeals, which affirmed the judgement below. In the papers

and at the oral argument at the Ninth Circuit Petitioners’ made

clear they were no longer the challenging the consitutionality of

the Newsrack Ordinance.

A. THE NINTH CIRCUIT COURT OF APPEALS

CORRECTLY APPLIED THE LAW GOVERNING

RESTRICTIONS ON SPEECH IN PUBLIC FORUMS,

AND DID NOT CREATE ANY LACK OF UNIFORMITY

IN THE LAW GOVERNING FREE SPEECH

The Ninth Circuit Court of Appeals, in its opinion, held

that both General Order No. 102093 and General Order No. 2-

14-94 were proper exercises of a courts inherent authority to

take supervisory and administrative actions necessary to

implement its judicial function. (Petitioners Appendix A, page

3a). Additionally, based on that holding, the Court affirmed the

district court decision to grant the City respondents motion to

dismiss for failure to state a claim under Fed. R. Civ. P.

12(b)(6). (d.)

The Ninth Circuit examined General Order No. 102093

under Burson v. Freeman, 504 U.S. 191 (1992), and Cox v.

Louisiana, 379 U.S. 559 (1965). Contrary to petitioners’

contention that the facts presented in this matter do not fit

within this court’s decisions in Burson and Cox, neither case

limited its reasoning to identical factual situations and were

appropriately considered by the appellate court. The Ninth

Circuit neither misapprehended nor misapplied those cases in its

opinion. The court addressed each factor set forth in those cases

and concluded that the regulation was necessary to serve the

state’s compelling interest in protecting the integrity of the jury

system. In addition, the court found the restriction to be

narrowly tailored to achieve that end. Thus, the court properly

found that each element set forth in Burson and Cox was

satisfied. (/d. at 2a-3a).

Additionally, the Ninth Circuit's application of Ward v.

Rock Against Racism, 491 U.S. 781 (1989), to General Order

No. 2-14-94 was appropriate. The Ninth Circuit found

application of the order to all newsracks located on the sidewalk

bordering the front of the courthouse to be content neutral and

recognized that Ward sets forth the appropriate standard for

determining the constitutionality of content neutral regulations

of speech. The court addressed each factor and did not deviate

from the standard set forth in that case. (/d. at 3a).

For those reasons, it is respectfully requested that

Petitioners’ petition be denied.

B. THIS CASE TURNS SOLELY UPON THE ANALYSIS

OF FACTUAL FINDINGS MADE BY THE DISTRICT

COURT AND AFFIRMED BY THE COURT OF

APPEALS

Respondent contends that petitioner seeks review of

concurrent findings of fact of two lower courts and that

petitioner has shown no evidence to indicate a gross

misapplication of law. This case turns upon the analysis of the

propriety of the issuance of the two court orders. Petitioner

would have the court determine factually whether General

Order No. 102093 and General Order No. 2-14-94 are proper

regulations of political speech and press in a public forum.

Both the district court and the appellate court found the issuance

of General Order Nos. 102093 and 2-14-94 to be proper

exercises of a court’s inherent authority to ensure the proper

administration of justice. The appellate court found no clear

error on the part of the district court. The appellate court

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affirmed the district court’s determination that the restrictions in

General Order No. 102093 were necessary to serve the state’s

compelling interest in protecting the integrity of the jury system

and narrowly drawn to achieve that end. The appellate court

also found no error in the in regards to the second order.

General Order No. 2-14-94 was found to be a content neutral

regulation narrowly drawn to further a significant state interest

in securing the area around the courthouse and leaving ample

alternative channels for communication of the information.

Because the district court and appellate court have made

concurrent findings of fact regarding the appropriateness of the

orders issued in this case and petitioner has didwa no clear

error, the factual findings of the appellate court must be

accorded deference. Therefore this case is not appropriate for

review by this court. Goodman v. Lukens Steel Co., 482 U.S.

656, 665 (1987). For this reason, it is respectfully requested

that Petitioner’s petition be denied.

oiie

C. THE CITY OF SAN DIEGO AND ITS POLICE CHIEF

WERE NOT INVOLVED IN THE ISSUANCE OF THE

ORDERS, NOR THEIR ENFORCEMENT.

The Ninth Circuit was correct in affirming the district

courts decision regarding the constitutionality of City

respondents’ Municipal Code sections 62.1001-62.1013. The

district court determined that there had been no allegations that

the City had anything to do with the issuance of either order.

(Petitioners’ Appendix B, pages 8a-9a). Furthermore

petitioners failed to allege any action on the part of the City of

San Diego or San Diego Police Chief Jerry Sanders in regards

to the enforcement of the orders. (/d.). Therefore, the City of

San Diego is no longer a proper party to this matter.

D. THIS CASE DOES NOT RAISE QUESTIONS OF

EXCEPTIONAL IMPORTANCE

While clearly freedom of speech is an important and

fundamental right, this case does not present a matter of

exceptional importance. Petitioners speculate as to the effect on

society regarding jury nullification, but that is a political matter

outside the scope of this case. This case deals with the ability of

a court to properly administer its business, given the dictates of

~—“*

7

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the rights guaranteed by the Constitution. The lower courts

correctly applied the applicable standards and determined that

these orders were proper excercises of judicial authority, and

that the City of San Diego and its Police Chief were not

involved in this matter. For those reasons, it is respectfully

requested that Petitioners’ petition be denied.

CONCLUSION

The Ninth Circuit Court of Appeals did not misapprehend

or misapply any points of law or facts in reaching its decision in

this matter. The district court and the appellate court considered

petitioners’ arguments and made concurrent findings of fact

which do not warrant review by this court. The City of San

Diego and Police Chief Sanders are not proper parties before

«8%e

this court. For those reasons, Respondent respectfully requests

that Petitioners’ Petition for Writ of Certiorari be denied.

Dated: June 21, 1996

JOHN W. WITT, City Attorney

Wprrta “PVE

James M. Chapin

Deputy City Attorney

Attorneys for Respondents

City of San Diego and Police

Chief Sanders

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

CERTIFICATE OF SERVICE

I, James M. Chapin, declare that I am, and was at the time

of service of the papers herein referred to, am the attorney of

record in the within action, and am a member of the bar of this

Court, representing Respondents City of San Diego and Chief

Sanders. I am a citizen of the United States, over the age of 18,

and not a party to the within action. My business address is _

1200 Third Avenue, Suite 1200, San Diego, California 92101.

On June 21, 1996, I served the Response to Petition For

Writ of Certiorari to the United States Court of Appeals for

the Ninth Ciruit on the following by placing one copy thereof

in a separate envelope for each addressess named hereafter,

addressed to each such addressee respectively as follows:

Peter D. Lepiscopo, Esq. Clerk of Court

2635 Camino del Rio South United States Court of

Suite 108 Appeals

San Diego, California92108 For the Ninth Circuit

121 Spear Street

P.O. Box 193939

San Francisco, CA 94119

I thereafter sealed and deposited such envelope in a

United States mailbox with first-class postage prepaid.

I declare under penalty of perjury, under the laws of the

State of California, that the above is true and correct. Executed

this 21st day of June, 1996, in San Diego, California.

“3

(fants Veg ——

Y

James M. Chapin