Opposition Brief — Chamber of Commerce v. Vollor

Supreme Court, U.S.

Q@ FILER

No. 00-1255 APR 23 2001

In The

Supreme Court of the United States

CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA,

Petitioner,

V.

HON. FRANK G. VOLLOR,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Mississippi

RESPONDENT’S BRIEF IN OPPOSITION

TO THE PETITION FOR WRIT OF CERTIORARI

Rosert B. McDurr

767 North Congress Street

Jackson, Mississippi 39202

(601) 969-0802

Counsel of Record for Respondent

i

QUESTIONS PRESENTED

1. Where the only decision of the state supreme court in

the case is a brief denial of a stay of a temporary restraining

order that does not address the merits of the TRO, and where

the questions presented by the petitioner in this Court go not to

the propriety of denying the stay but to the underlying merits

of the TRO, is there a “final judgment[]” on the merits of the

TRO sufficient to give this Court jurisdiction to grant the

petition under 28 U.S.C. § 1257?

2. Given that the TRO expired by its own terms after ten

days and was stayed by a Justice of this Court on the third day,

given that the election to which it related has come and gone,

given that the candidate supported by the petitioner was

victorious and will not be campaigning for re-election for

another eight years, given that the respondent will not be

running for election any time soon, given that the possibility of

a future injunction against the petitioner is quite speculative,

and given that the claims of the petitioner will be timely

resolved in the lower courts, is this case moot?

(Assuming jurisdiction to address the merits of the TRO,

the petition also raises the following questions:)

3. Are corporate television advertisements clearly

designed to persuade voters to cast ballots for a particular state

supreme court candidate, aired in the three weeks prior to the

election, immune from state campaign finance laws simply

because they do not tell the voters in exact words to “vote for”

or “elect” the candidate?

4. In the event the advertisements are subject to state

campaign finance laws and in the event the substantial

expenditures on them violate state law, was a TRO permissible

in the context of the unusual circumstances and timing in this

case?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENT? 6 oc.ssscvanscdeubaseects i

STATEMENT OF THB GAGs i acsncckscssssbannees 1

REASONS TO DENY THE WRIT .........ccccceee 4

I.

II.

Ill.

BECAUSE ANY FINAL JUDGMENT IN THE

MISSISSIPPI SUPREME COURT GOES ONLY

TO THE QUESTION OF A STAY AND NOT

TO THE MERITS OF THE TEMPORARY

RESTRAINING ORDER, AND BECAUSE THE

CHAMBER’S PETITION SEEKS REVIEW

ONLY OF THE MERITS, THERE IS NO

“FINAL JUDGEMENT” ON THE MERITS

GIVING THIS COURT JURISDICTION

UNDER 28 U.S.C. § 1257 TO GRANT THE

eg Pere © . Pe rs I ee

EVEN IF THIS COURT HAS JURISDICTION

TO GRANT THE PETITION IN THIS CASE

AND REVIEW THE MERITS OF THE TEMPO-

RARY RESTRAINING ORDER, IT SHOULD

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iii

TABLE OF AUTHORITIES

Page

Cases

Austin v. Michigan Chamber of Commerce, 494 U.S.

Se RIAU Ks We euu es ees seVibaeedbaceedas 14

Burrell v. Mississippi State Tax Comm'n, 536 So.2d

Ee Re Sa SES ar i a ae ea 12

Construction Laborers v. Curry, 371 U.S. 542 (1963) ..... 7

Golden v. Zwicker, 394 U.S. 103 (1969) ................ y

National Socialist Party v. Village of Skokie, 432 U.S.

Le Luis uy re ck Ke Rion es eae hie hed Gok cee 7

Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976)..... 7

Nebraska Press Ass'n v. Stuart, 432 U.S. 1327 (1975) ..... 8

New York Times Co. v. United States, 403 U.S. 713

eae eee Seria aWiw aida ees Ouse ees 13

Norman v. Reed, 502 U.S. 279 (1992) ................. 10

Oil Workers Unions v. Missouri, 361 U.S. 363 (1960) ..... 9

Organization for a Better Austin v. Keefe, 402 U.S.

er eer a yd ah Gyet cues na harknw ee elwavekss 7

Village of Skokie v. National Socialist Party, 373

rn ek oS Tins cadsdew eas d wens cutevn’s 7

Weinstein v. Bradford, 423 U.S. 147 (1975)............ 10

Statutes, RULES AND REGULATIONS

re ei eh ace adie kheee se huwdvbes 4, 6

Miss. Code Ann. §§ 9-3-1, 23-15-991, 23-15-993 ..... 5, 9

rr Oe, Se On, igs cckeceeemetesences 5

ee Os ack sass ante bu ckteeee een 3

iv

TABLE OF AUTHORITIES —- Continued

Page

Diies. BR. App. Pune, BAG BD. acs ccccccesccsaciccecsnes 3

Délse. Rh. Amp. Peot., TAD 2b «occ e seca cercssecsrssnass 3

LaAuRENCE H. Trise, AMERICAN CONSTITUTIONAL LAW

Se Ge Wes BI 6 ds 0 sd onan ha edaaeesanees 13

eras

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2000

CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA,

Petitioner,

¥;

HON. FRANK G. VOLLOR,

Respondent.

On Petition for

Writ of Certiorari to the

Supreme Court of Mississippi

RESPONDENT’S BRIEF

IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

As directed by the Court, the respondent, Hon. Frank G.

Vollor, submits this response to the petition for writ of certiorari

and urges that the petition be denied.

STATEMENT OF THE CASE

This case grows out of a highiy unlikely set of events

forged, because of unusual circumstances, in a compressed

time frame. It comes to this Court with no evidentiary record

save the uncontested factual allegations in affidavits from the

respondent and his attorney. There is no final judgment from

2

the appellate court below on the merits of the temporary

restraining order being challenged, and there is no written

opinion from that court save a brief order denying the motion

for stay.

The Chamber of Commerce (the petitioner here), an

incorporated entity, began running frequent television

advertisements in favor of certain Mississippi Supreme Court

candidates, including incumbent Justice Jim Smith, on October

17, 2000, three weeks before the election. Six days later, the

Chamber filed its declaratory judgment action against the State

of Mississippi and certain state officials in the United States

District Court for the Southern District of Mississippi. After an

expedited hearing requested by the Chamber, that Court’s

decision (described more fully in the Chamber’s petition for

certiorari) was issued on Thursday, November 2, five days

before the election. In that decision, the federal court held that

the Chamber’s advertisements were not immune on First

Amendment grounds from Mississippi’s campaign finance

laws.

Given a definitive federal court ruling that the Chamber

was not immune from those statutes, the Hon. Frank Vollor,

who is the respondent here and who was Justice Smith’s

opponent, sought the next day an injunction in the Chancery

Court of Hinds County, Mississippi, to prohibit the Chamber

from running further advertisements in violation of Mississippi

law.!

* Judge Vollor is a Circuit Court judge in Mississippi’s Ninth

Judicial Circuit, which encompasses Warren, Sharkey, and Issaquena

Counties. He has served in that position for over twelve years. The Circuit

Court is Mississippi’s trial level court of record in matters of law, as

distinguished from the Chancery Court, which is the trial level court of

record in matters of equity.

ues EEO

3

Faced with an uncontroverted allegation that the Chamber

had purchased advertising in amounts far exceeding the

corporate amounts permitted under Mississippi law, see petition

for certiorari (pet. cert.) at 6 n.3 and Miss. Code Ann. § 97-13-

15, and far exceeding those permitted in judicial elections under

Mississippi law, id. 23-15-1021, and faced with the fact that

Judge Vollor would be irreparably harmed if this massive

illegal advertising were to continue in the two weekend days

and one business day remaining before the election, the

Chancery Court issued the temporary restraining order.

Appendix to the petition for certiorari (pet. app.) 4a. The

Chamber filed that same day in the Missisippi Supreme Court

a petition for permissive interlocutory appeal under Rule 5,

Miss. R. App. Proc., or alternatively for a writ of prohibition or

mandamus under Rule 21, M.R.A.P., and simultaneously filed

a motion for stay of the Chancery Court order. Appendix to this

opposition (op. cert. app. 1a); pet. app. 49a. The Mississippi

Supreme Court denied the motion for stay later that afternoon.

Id. 1a. It is from that order that the Chamber has filed the

present petition for certiorari. The Chamber’s petition for

interlocutory appeal remains pending in the Mississippi

Supreme Court. The TRO was to expire by its own terms ten

days after issuance, id. 4a, and Justice Scalia stayed it on

Monday, November 6. /d. Sa.

Since that time, the Chamber has appealed the federal

district court’s decision to the United States Court of Appeals

for the Fifth Circuit. Chamber of Commerce v. Moore, No. 00-

60779 (5" Cir.). After obtaining one extension of time, the

Chamber filed its brief in that court and the brief of the State

appellees is being filed on April 23. In addition, the Chamber

on December 4, 2000, took an appeal on the merits to the

Supreme Court of Mississippi in a separate case involving what

it calls in its petition for certiorari “TRO #3.” Pet. cert. 9. That

injunction was issued by the Chancery Court of Jones County,

4

Mississippi on November 5, 2001. It is reproduced at pet. app.

60a. It involved an election for a separate seat on the Supreme

Court, and like the TRO in the present case, it enjoined the

Chamber from running its advertisements in violation of

Mississippi law. The appeal is styled Chamber of Commerce

v. Landrum, No. 2000-CA-2048 (Miss.). The record has been

completed and the briefing schedule was issued on March 21,

2001, with the Chamber’s brief due 40 days thereafter.

REASONS TO DENY THE WRIT

This case comes to this Court on a_ negligible record

created in the exigencies of the unusual confluence of events

that occurred here, with no review in the Supreme Court of

Mississippi save for its denial of a stay. Indeed, the record does

not even include the transcripts, audio, or video of the

advertisements at issue. There is no final judgment in the trial

court or on appeal, and the Chamber’s petition for interlocutory

appeal from the TRO remains pending in the Mississippi

Supreme Court. To the extent there is any “final judgment” of

the Mississippi Supreme Court giving this Court jurisdiction

under 28 U.S.C. § 1257, it is only that Court’s decision denying

the stay. But the questions presented in the Chamber’s petition

for certiorari go not to the denial of the stay, but to the merits of

the TRO.

In contrast to the present case, the underlying federal court

decision which sparked these events, and upon the reasoning of

which rests the state court TRO, is now pending in the Fifth

Circuit upon a final judgment and a full record, including the

advertisements in question. In addition, as just noted, the

injunction similar to this one in the case of Chamber of

Commerce v. Landrum (the so-called TRO #3) is pending

5

before the Mississippi Supreme Court on the merits.” It is far

better for these questions to be first resolved in those courts by

full review with written opinions, and if necessary, upon

certiorari to this Court in those cases, than in the hurried

circumstances of this case.’

In its petition here, the Chamber asserts that it “expects to

engage in similar speech during future elections in Mississippi,”

pet. cert. 2, although it does not specify the elections in which

it expects to run advertisements. Justice Jim Smith, the

candidate in whose favor the Chamber ran the advertisements

at issue here, was elected to a full term, and therefore will not

be up for re-election for another eight years. Miss. Code Ann.

23-15-991. There are no scheduled state elections in

Mississippi until the fall of 2002, when one of the additional

seats on the Mississippi Supreme Court is up for election.

Miss. Code Ann. §§ 9-3-1, 23-15-991, 23-15-993. That allows

ample time for the Fifth Circuit in the federal case and the

Mississippi Supreme Court in the Landrum case to resolve these

issues with written opinions, and for the Chamber, if necessary,

to seek review in this Court. Moreover, the Chamber can seek

to expedite any of those proceedings if it believes time is of the

essence.

2On March 2, 2001, that Court denied the motion of the appellee

in that case, Hon. Billy Joe Landrum, a losing candidate for one of the other

Supreme Court seats, to dismiss the Chamber’s appeal. Thus, the briefing

is going forward and it appears the Court will decide, on the merits, the

propriety of the injunction. Apparently, the Court is holding the petition for

interlocutory appeal in the present case in abeyance until it resolves the

merits in Landrum.

3There also are other cases that provide better vehicles than this

one. For example, as noted in the brief of amici curiae Alliance for

Democracy and Common Cause/Ohio, the existing situation in Ohio

presents the express advocacy issue -- the second issue here -- more squarely

than both the present case and the federal case now pending in the Fifth

Circuit.

6

I. BECAUSE ANY FINAL JUDGMENT IN THE

MISSISSIPPI SUPREME COURT GOES ONLY TO

THE QUESTION OF A STAY AND NOT TO THE

MERITS OF THE TEMPORARY RESTRAINING

ORDER, AND BECAUSE THE CHAMBER’S

PETITION SEEKS REVIEW ONLY OF THE

MERITS, THERE IS NO “FINAL JUDGEMENT” ON

THE MERITS GIVING THIS COURT

JURISDICTION UNDER 28 U.S.C. § 1257 TO

GRANT THE PETITION.

The Mississippi Supreme Court’s action in the present case

is not a “[f]inal judgment[] or decree[]” sufficient to confer

jurisdiction on this Court under 28 U.S.C. § 1257, and it

certainly is not a “final judgment” with respect to the merits of

the TRO, which is what the Chamber is asking this Court to

review. At present, the case is before this Court solely on the

state supreme court’s denial of a stay of a temporary and

preliminary injunction. The merits of the injunction itself were

not addressed by the Mississippi Supreme Court. There has

been no further ruling from the Mississippi Supreme Court

concerning the propriety of injunctive relief in this context,

either on state or federal grounds. Justice Scalia has granted

the stay that the Mississippi Supreme Court denied. Any

request for further relief from this Court by way of certiorari is

premature.

The Chamber’s petition for interlocutory appeal, op. cert.

app. la, remains pending in the Mississippi Supreme Court,

where it apparently is being held in abeyance until that Court

rules on the merits in Landrum. The Chamber’s merits appeal

in Landrum and its interlocutory appeal in the present case raise

not simply the question of whether preliminary injunctive relief

of this type should be stayed, but whether, on the merits, it is

valid at all. Only after a ruling in Landrum, or in response to

7

the state court petition for interlocutory appeal in this case, will

there be a final judgment of the Mississippi Supreme Court on

the validity of an injunction in this unique election-eve context.

On selected occasions in the past, this Court has granted

certiorari and reviewed the merits of state court injunctions, but

has done so in situations where the propriety of the injunction

already has been adjudicated on the merits by the state appellate

courts. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 544-545

& n.2 (1976), Organization for a Better Austin v. Keefe, 402

U.S. 415, 417-418 & n. (1971), Construction Laborers v.

Curry, 371 U.S. 542, 545-546 (1963). Even in those situations,

the Court has said the matter of jurisdiction is difficult. For

example, in Keefe, where the temporary injunction had been in

effect for over three years and had been affirmed on the merits

by the state appellate courts, this Court said the finality question

was “not entirely free from doubt.” 402 U.S. at 418 n.

But in cases where the state appellate courts have done

nothing more than deny stays, this Court has limited itself to

deciding whether a stay should issue to stop an ongoing

injunction. In National Socialist Party v. Village of Skokie, 432

U.S. 43 (1977), this Court -- acting on an application for stay

submitted to Justice Stevens and referred to the full Court -- did

not review the merits of the ongoing injunction. It simply held

that the state supreme court’s denial of a stay was a “final

judgment” under § 1257. The Court reversed the denial of the

stay, which had the effect of staying the injunction. The case

was remanded to the state supreme court, which later reversed

the injunction on the merits. Village of Skokie v. National

Socialist Party, 373 N.E.2d 21 (Ill. 1978). But this Court never

said that there was a “final judgment” with respect to the merits

of the injunction.

—_—_

8

Similarly, in Nebraska Press Ass’n v. Stuart, 423 U.S.

1327 (1975) (Blackmun, J., in chambers), Justice Blackmun

held only that there was a final judgment regarding the state

supreme court’s failure to stay the ongoing injunction, never }

stating that there was a final judgment on the merits. 423 U.S.

at 1329-1330. While granting the stay, he made clear the

Court’s preference that the matter “should be decided in the first

instance by the Supreme Court of Nebraska.” 423 U.S. at 1328.

This Court later reviewed the merits of the injunction, but only

after the state supreme court had done so (subsequent to Justice

Blackmun’s stay) and had affirmed the injunction (as modified)

on the merits. Nebraska Press Ass'n v. Stuart, 427 U.S. at 544.4

These few cases in which the Court has taken action on

temporary state court injunctions stand for the proposition that,

at most, the Court has jurisdiction to review the merits of the

injunction under § 1257 only if there is a “final judgment” of

the state appellate courts disposing of the merits. Where the

only action taken by the state appellate courts is to deny a stay,

any jurisdiction of this Court under § 1257 is limited to

reviewing that denial and issuing a stay of an ongoing

injunction if appropriate. That is what Justice Scalia did here

when the TRO was in operation. Any post-stay adjudication of

the merits must first occur, as both in Skokie and Nebraska

Press Ass'n, in the state appellate courts.

Thus, to the extent there is a “final judgment” of the

Mississippi Supreme Court here, it does not go to the merits of

the TRO. The only question raised for this Court by that

*Of course, in deciding whether to grant the stay, Justice Blackum

examined the First Amendment questions. But he did so only to determine

whether a stay should issue, and he did not purport to review the merits of

the state supreme court’s decision. The same is true for this Court’s decision

in Skokie.

eM

9

judgment is whether the Mississippi Supreme Court should

have issued a stay. But the questions presented by the

Chamber’s petition for certiorari go solely to the merits.

Accordingly, this Court does not have jurisdiction under § 1257

to grant the Chamber’s petition, and it must be denied.’

Il. THIS CASE IS MOOT.

Given the stay and expiration of the TRO, the passing of

the election, and the victory by Justice Smith, who was the

candidate supported by the Chamber, this case is moot. The

Chamber’s claim that it “expects to engage in similar speech”

in unspecified future elections, and that it will therefore

encounter an injunction like the one here, is “wholly

conjectural.” Golden v. Zwicker, 394 U.S. 103, 109 (1969).

See also, Oil Workers Unions v. Missouri, 361 U.S. 363, 368-

369, 371 (1960) (where an allegedly unconstitutional injunction

against a labor strike had expired by its own terms, the case was

moot despite the possibility of future injunctions against the

labor unions that were involved). Justice Smith will not be

running for re-election for another eight years, and Judge Vollor

will not be seeking an injunction any time soon. The

Mississippi courts, aware of Justice Scalia’s stay, will be

°Of course, had the Chamber raised the propriety of the denial of

the stay in its petition, it would make little sense for this Court to grant

certiorari. Justice Scalia already has issued a stay, and there is no need for

the members of this Court to hold a referendum on that action.

Even if inclined to run again, Judge Vollor will not be eligible as

a candidate for the Supreme Court until 2004 at the earliest. Mississippi’s

nine-member court is elected by staggered eight-year terms from three

separate geographic districts in the stat’, with each district electing three

justices. None of the three seats in Judge Vollor’s district will be up for

election prior to 2004. See, Miss. Code Ann. §§ 9-3-1, 23-15-991, 23-15-

993.

10

unlikely to grant similar TROs in the future, and if they do, the

Mississippi Supreme Court will entertain any motions for stay

with an awareness of Justice Scalia’s action here.’ As a

practical matter, there is “no reasonable expectation that the

same complaining party [will] be subjected to the same action

again,” Weinstein v. Bradford, 423 U.S. 147, 149 (1975), and

certainly not at the hands of the respondent here. Compare,

Norman v. Reed, 502 U.S. 279, 288 (1992) (“There would be

every reason to expect the same parties to generate a similar,

future controversy subject to identical time constraints if we

should fail to resolve the constitutional issues that arose in

1990.”) (emphasis added).

And even if the unusual scenario here is capable of

repetition, it will not evade review. The similar injunction

involving the Chamber is pending on the merits before the

Mississippi Supreme Court in the Landrum case, and the

underlying First Amendment question of whether these

advertisements constitute express advocacy or issue advocacy

is pending before the Fifth Circuit. The Chamber’s petition for

interlocutory appeal in the present case, op. cert. app. 1a,

remains pending in the Mississippi Supreme Court, apparently

?The Chamber refers to another TRO issued later in the morning

of November 6 after Justice Scalia issued his stay earlier that morning in this

case. Pet. cert. 10-11. While unfortunate, there is nothing to suggest this

will be repeated in the future, or that the Mississippi Supreme Court would

not have stayed that TRO itself (in light of Justice Scalia’s stay) had it been

asked. (In the interest of time, the Chamber simply supplemented its stay

application to Justice Scalia rather than asking the Mississippi Supreme

Court to stay the later TRO). At least one other Mississippi chancery judge,

when asked to enjoin the Chamber advertisements after Justice Scalia’s stay,

refused to do so. Diaz v. Chamber of Commerce, No. C2402-00-0106

(Chancery Ct., Harrison Cty., Miss., Nov. 6, 2000) (denying motion for

preliminary injunction). Thus, despite the Chamber’s contrary suggestion,

there is not much of a chance that history will be repeated here.

NOR CREE SSNS EDON Eze rERCPYDORERERERRRELt RSP NE

PO ic TT CRG ela TET A Pe FIN 9

11

being held in abeyance until Landrum is decided. Thus, the

questions presented by the Chamber likely will be decided in

the lower courts in a timely manner without the need for further

intervention by this Court at this time.

III. EVEN IF THIS COURT HAS JURISDICTION TO

GRANT THE PETITION IN THIS CASE AND

REVIEW THE MERITS OF THE TEMPORARY

RESTRAINING ORDER, IT SHOULD DECLINE TO

DO SO.

Even if this Court has jurisdiction, it should decline the

Chamber’s invitation to take this case and instead should

reserve these issues for a different case on a better record. The

Chamber claims that the world cannot wait, that these

injunctions are part of “‘a growing and disturbing practice,” id.

12, and that absent swift action from this Court, future election

advertising will be subject to a “proliferation of . . . prior

restraints. ” Pet. cert. 11. But despite these alarms, there is no

brush fire of injunctions sweeping the nation. Indeed, in its

canvass of the law, the Chamber has uncovered only two

injunctions outside of the recent Mississippi election, one from

1994 and one from 1996. Jd. 11, 14. Of course, the TROs

from the Mississippi election were triggered by the federal

district court’s expedited ruling in the Chamber’s own

declaratory judgment action, all coming shortly before the

election of four seats to the Mississippi Supreme Court. This

unusual timing and chain of events is unlikely to repeat itself.

With respect to the underlying issue raised in that federal

case, the Chamber contends that action from this Court is

required because any future ruling in its favor by the Fifth

Circuit will not bind the Mississippi courts. Pet. cert. 20-21

n.13. But the entire state court process in this case was

occasioned by the federal district court’s ruling that the

12

Chamber’s advertisements were not immune from Mississippi

campaign finance laws on First Amendment grounds. The

Chancery Court specifically relied on the federal ruling in

issuing the TRO in this case. Pet. app. 4a. Having relied upon

the federal district court’s ruling, it is hard to believe that the

Mississippi courts will later turn a blind eye should the Fifth

Circuit reverse the district court and hold that these

advertisements are immune from state regulation. See, Burrell

v. Mississippi State Tax Comm'n, 536 So.2d 848, 864 (Miss.

1988) (“When Mississippi courts are enforcing rights created

under federal law, the Mississippi courts must follow the

interpretations of those rights provided by federal courts.”’) ®

At any rate, it is clear that the record of the present case,

which does not include the Chamber’s advertisements, is not

the record upon which the important First Amendment question

of express advocacy should be resolved. Neither is it the case

in which the prior restraint issue should be resolved. Indeed, if

the Court chooses (as we suggest) not to resolve the express

advocacy question here, it could only resolve the separate

® Of course, it is the Chamber that chose to pursue its declaratory

judgment action in federal court rather than state court. It could have filed

such an action in state court and indeed still can. However, there is no need

now, particularly given that all of these issues are raised in the Chamber’s

appeal to the Mississippi Supreme Court in Landrum.

The Chamber makes the unfortunate suggestion that Mississippi

judges may have been biased in favor of fellow judges who requested the

TROs and against the Chamber, which “was from out-of-state and perhaps

represented disfavored views.” Pet. cert. 13. Of course, the fellow judges

who requested the TROs were in election contests against other fellow

judges and there is nothing to indicate that the Chancery Judge in this case,

for example, was biased in favor of Judge Vollor and against Justice Smith.

Furthermore, there is absolutely no basis for the Chamber’s suggestion that

the Mississippi courts are prejudiced against out-of-state litigants or against

the Chamber because of its purported “disfavored views.”

13

question of the validity of the TRO by assuming that the

advertisements are express advocacy and are subject to state

regulation. While the Chamber indicates that this question is

easily answered by speaking in the ominous terms of “prior

restraint,” the matter is not so simple.

If it is assumed that the federal district court is correct, and

if the spending limits in Mississippi law were far exceeded by

the Chamber to the detriment of Judge Vollor (a proposition the

Chamber has not disputed in this Court), an injunction against

further illegal advertisements was the only means by which the

election process could be protected. Without an injunction, the

candidate whose supporters abide by the law is at a distinct

disadvantage to the candidate whose supporters flaunt the law

with only the risk of an after-the-fact civil or criminal fine.

Unlike cases where, for example, a determination of

prejudice stemming from the pretrial reporting of a defendants’

confessions “was of necessity speculative,” Nebraska Press

Assocation vy. Stuart, 427 U.S. 539, 563 (1976), or even where

a claim of harm from publication of national security

documents was subject to question, New York Times Co. v.

United States, 403 U.S. 713, 726-727 (1971) (Brennan, J.,

concurring), the illegality here and the ensuing harm are clear.

Again, ifthe federal court is correct, a determination of whether

the monetary limits have been violated is simply a matter of

numbers -- particularly where, as here, the amounts far exceed

the law’s limits. ?

*Unlike the types of speculation involved in many prior restraint

cases, “relative certainty can ordinarily be obtained in the context of

prepublication restraints on the publication of obscene material or

commercial advertisements. . . . A court’s determination that material is

obscene or an advertisement false is thus as plausible before as after the

communication’s publication.” | LAURENCE H. TRIBE, AMERICAN

CONSTITUTIONAL LAW § 12-36 (2 Ed. 1988). The same can be said for

transgressions, particularly substantial ones, of the monetary limits in

campaign finance laws.

Bis a:

Certainly it seems that a state, if it chose, could pass

campaign finance laws limiting, say, corporate expenditures for

express campaign advocacy, see, Austin v. Michigan Chamber

of Commerce, 494 U.S. 652, 664-665 (1990), and provide that

if the monetary limits contained in those laws are exceeded in

mid-campaign, and if the violation is proved by clear and

convincing evidence, further advertising in violation of the

limits could be enjoined. The State could do this, it would

seem, to insure that the process is not corrupted by those willing

to ignore the law and spend massive amounts of corporate

money. And if the First Amendment does not prohibit a state

from taking such action, then it cannot be said -- as the

Chamber suggests here -- that injunctions against express

advocacy are per se unconstitutional. This is a complicated

question, as is the question of the circumstances under which a

state can rightfully enjoin massive violations of its campaign

finance statutes. These matters should not be resolved in the

present case, which involves an unlikely factual scenario. And

if they are to be resolved in this scenario, they should be

addressed first in a case like Landrum, where the Mississippi

Supreme Court will have an opportunity to fully consider the

merits of an injunction like this one and the Chamber’s

contentions regarding it.'°

‘°Indeed, in the present case, in both the trial court and in the

pending petition for interlocutory appeal to the Mississippi Supreme Court,

op. cert. app. 7a-8a, lla-13a, the Chamber has contended that the

injunctions violate not only the First Amendment, but also are contrary to

Mississippi law in a number of respects. Presumably, the Chamber will

argue the same thing before the Mississippi Supreme Court in Landrum. If

the Mississippi Supreme Court agrees with any of the Chamber’s state law

contentions after full review on the merits, there will be no need to resolve

the federal constitutional question.

|

}

|

15

CONCLUSION

There is no “final judgment or decree” under § 1257

going to the merits of the TRO being challenged by the

Chamber, and this case is moot. But even if this Court does

have jurisdiction to grant the Chamber’s petition, the Court

should decline to exercise it for all of the reasons listed in this

brief. This case stems from an unusual set of events unlikely

to be repeated. The Chamber’s federal lawsuit and the

eleventh hour federal ruling resulted in hurried state court

proceedings that led to a negligible record, no evidentiary

hearing, no final judgment, and no opportunity for considered

reflection or a written opinion from the state’s highest court.

This case has not been decided on the merits. The questions it

raises should first be resolved elsewhere.

For the foregoing reasons, and on the basis of the

authorities cited, the petition for writ of certiorari should be

denied.

Respectfully Submitted,

ROBERT B. MCDUFF

767 North Congress Street

Jackson, Mississippi 39202

(601) 969-0802

Counsel for Respondent

la

IN THE SUPREME COURT OF THE

STATE OF MISSISSIPPI

NO. 2000-M-1839

IN RE: CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA PETITIONER

PETITION FOR INTERLOCUTORY APPEAL

BY PERMISSION OR, IN THE ALTERNATIVE,

FOR WRIT OF MANDAMUS OR PROHIBITION

(Filed Nov. 3, 2000)

MICHAEL B. WALLACE (MB #6904)

CHRISTOPHER R. GREEN

(MB #99593)

PHELPS DUNBAR, L.L.P.

Suite 500, SkyTel Centré

200 South Lamar Street

Post Office Box 23066

Jackson, Mississippi 39225-3066

Telephone: (601) 352-2300

Telecopier: (601) 360-9777

2a

IN THE SUPREME COURT OF THE

STATE OF MISSISSIPPI

NO.

IN RE: CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA PETITIONER

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the

following listed persons have an interest in the outcome

of this case. These representations are made for the Jus-

tices of this Court to evaluate possible disqualifications or

recusal.

1. United States Chamber of Commerce, defendant-

appellant.

2. Michael B. Wallace, Christopher R. Green and

Phelps Dunbar, L.L.P., attorneys for appellant United

States Chamber of Commerce.

3. Circuit Judge Frank G. Vollor, plaintiff-appellee.

4. Paul Kelly Loyacono, Vicksburg, Mississippi,

attorney plaintiff-appellee Frank G. Vollor.

5. Because this matter concerns advertisements con-

cerning candidates for election to this Court, it is possible

that certain Justices may consider themselves interested

even though not a party to this action.

/s/ Michael B. Wallace

MICHAEL B. WALLACE

aaa ee ——

3a

INTRODUCTION

The Chancery Court of the First Judicial District of

Hinds County has ordered the Chamber of Commerce of

the United States of America (“U.S. Chamber”) and eight

local television stations to cease running certain adver-

tisements concerning plaintiff Frank G. Vollor and Justice

Jim Smith, both of whom are candidates for election to

this Court in the general election scheduled for Tuesday,

November 7. This order followed by a day a federal

opinion holding that the First Amendment does not

shield the U.S. Chamber from reporting requirements

under Mississippi state law regarding four of those

advertisements. See Chamber of Commerce v. Moore, No.

3:00-CV-778WS (S.D.Miss. Nov. 2, 2000). During that fed-

eral litigation, the Attorney General repeatedly and

explicitly disclaimed any intention of seeking to enjoin

the advertisements.

The U.S. Chamber respectfully requests this Court to

grant an interlocutory appeal, or, in the alternative, to

issue its writ of mandamus or prohibition, so as to vacate

the Circuit Court’s order. Such an order will “[mJaterially

advance the termination of the litigation and avoid excep-

tional expense to the parties” and will also “protect a

party from substantial and irreparable injury.” M.R.A.P.

5(a)(1) and (2).

FACTS NECESSARY TO AN UNDERSTANDING

OF THE ISSUES

This fall, the U.S. Chamber has independently spon-

sored a series of television advertisements concerning

candidates for judicial office in several states. As a part of

4a

that effort, on October 17, 2000, the U.S. Chamber began

airing television advertisements in Mississippi to inform

the public about the experience of certain candidates for

the Mississippi Supreme Court regarding particular

issues of public importance, such as the administration of

criminal law.

The Attorney general and Secretary of State believed

that these expenditures subjected the U.S. Chamber to the

reporting requirements of Miss. Code Ann. § 23-15-801 et

seq. The U.S. Chamber disagreed and filed suit in federal

court seeking a declaration that four of the advertise-

ments were not “express advocacy” under Buckley v.

Valeo, 424 U.S. 1 (1976), and therefore were not subject to

state regulation. Following an expedited hearing, Judge

Wingate of the Southern District of Mississippi disagreed.

He held that the four advertisements at issue were

express advocacy, and so were outside Buckley’s protec-

tions from state regulation. See Chamber of Commerce v.

Moore, supra, memorandum opinion at 27.

On November 3, Judge Frank G. Vollor obtained the

present temporary restraining order forbidding the

broadcast of the U.S. Chamber’s advertisements concern-

ing him or his opponent, Justice Jim Smith. His applica-

tion to the Chancellor is attached as Exhibit A. The

Chancellor’s temporary restraining order is attached as

Exhibit B. The U.S. Chamber’s petition for permission for

interlocutory appeal and stay pending appeal is attached

as Exhibit C. Judge Singletary has left for the weekend

without ruling on that petition.

ceme t E R OONT aane Wl reat

ee - - myetennenesns

Sa

STATEMENT OF ISSUES. AND RELIEF REQUESTED

Petitioner seeks certification on interlocutory appeal,

pursuant to M.R.A.P. 5, regarding the following issues:

Whether Judge Vollor has proven a violation of Missis-

sippi’s campaign laws, and, if so, whether such proof can

support, consistent with the First Amendment of the fed-

eral Constitution, an injunction against political speech.

Alternatively, the U.S. Chamber seeks a writ of prohibi-

tion or mandamus pursuant to M.R.A.P. 21 instructing the

Chancery Court to vacate its TRO.

REASONS FOR GRANTING RELIEF

1. The TRO is an improper prior restraint on First

Amendment rights.

In the leading case, the United States Supreme Court

refused to condone an injunction against The New York

Times’ publication of the so-called “Pentagon Papers,”

even though the documents had apparently been

obtained illegally and their publication threatened

national security. The Court held: “Any system of prior

restraints of expression comes to this Court bearing a

heavy presumption against its constitutional validity. The

Government thus carries a heavy burden of showing

justification for the imposition of such a restraint.” New

York Times Co. v. United States, 403 U.S. 713, 714 (1971)

(citations and quotation marks omitted). Similarly, in

Near v. Minnesota, 283 U.S. 697, 702, 722-23 (1931), the

Supreme Court struck down a statute that permitted

injunctive relief against “malicious” or “defamatory”

newspaper articles, and in Nebraska Press Ass'n v. Stuart,

427 U.S. 539, 541, 570 (1976), the Supreme Court held that

6a

a restraint against news media reports on a criminal

defendant’s confessions or admissions failed to meet the

heavy burden of presumption against prior restraints.

More recently, the Fifth Circuit refused to allow

restrictions on speech between litigants and potential

members of a class, reasoning: “Prior restraints fall on

speech with a brutality and a finality all their own. Even

if they are ultimately lifted they cause irremediable loss -

a loss in the immediacy, the impact, of speech.” Bernard v.

Gulf Oil Co., 619 F.2d 459, 469 (Sth Cir. 1980) (en banc)

(citations and quotations omitted). The court explained

“(t]he justification for drawing a distinction based on

th[e] difference [between prior restraint and post publica-

tion enforcement] is that a free society prefers to punish

the few who abuse rights of speech after they break the

law than to throttle them and all others beforehand.” Id.

at 468. The effect of enjoining speech, instead of seeking

to punish the alleged improper activity through proceed-

ings which safeguard an accused’s rights and defenses, is

clear:

“[A] prior restraint may be distinguished from a

statute prohibiting publication in that the for-

mer has an immediate and irreversible sanction.

If it can be said that a threat of criminal or civil

sanctions after publication ‘chills’ speech, prior

restraint ‘freezes’ it at least for the time.” Id. at

469 (quotation omitted).

See also Jeffries v. Mississippi, 724 So.2d 897 (Miss. 1998)

(rejecting prior restraint prohibiting a reporter from pub-

lishing information discussed in open court).

A case that is precisely on point is Republican Party of

Florida v. Florida Elections Commission, 658 So.2d 653 (Fla.

em SP NTT eT en

7a

App. 1995). In that case, just weeks prior to an election,

the plaintiffs alleged that certain advertisements by the

Republican Party of Florida (“RPF”) constituted illegal

campaign contributions under Florida law, and obtained

an injunction from the trial court against the airing of

those advertisements. Id. at 654-55. In no uncertain terms

the Court of Appeal reversed the injunction, holding that

the injunction was an improper prior restraint of the

RPF’s First Amendment rights, even if the advertisements

constituted illegal contributions. Id. at 655, 657. The Court

found that the State’s interest in enforcing its election

laws is adequately protected through the agency’s pro-

cedures and not the extraordinary remedy of prior

restraint of free speech rights. Id. at 657. “[P]rior

restraints on speech and publication are the most serious

and least tolerable infringement on First Amendment

rights.” Id. (quotation omitted).

The Florida Court of Appeal reiterated the longstand-

ing view that prior restraint is impermissible, especially if

the statutory or regulatory scheme provides a different

remedy. In Near, the United States Supreme Court traced

this precept back to Blackstone’s Commentaries, noting

that every person has a right, as here, to “lay what

sentiments he pleases before the public,” and then take

the consequences afterwards if he violates the law. 283

U.S. at 714 (quoting 4 Bl. Com. 151, 152).

2. The TRO is not authorized by Mississippi law.

The Mississippi Election Code provides ample

remedies for violation of the statute. See Miss. Code Ann.

8a

§ 23-15-813 (civil penalties); id. § 23-15-811 (other sanc-

tions). Implicitly recognizing the prior restraint doctrine,

the statute does not grant authority to seek an injunction

against violations.

Of the utmost importance is the fact that § 23-15-13

vests initial enforcement authority in the Secretary of

State. Neither the Secretary of State nor the Attorney

General, who has principal responsibility for enforcement

of the State’s laws, was joined as a party in the Chancery

Court proceedings; although both Secretary Clark and

General Moore are parties to the federal proceeding, they

have not sought any relief against the Chamber. The

detailed remedial scheme provided by the statute makes

no allowance for an enforcement action brought by candi-

date or other private citizen.

Nor is enforcement authorized under general princi-

ples of Mississippi equity. “Courts of equity concern

themselves only with matters of property and with the

maintenance of civil rights, and do not interfere with

issues that are purely personal, or political, or with

crimes....” V. Griffith, Mississippi Chancery Practice § 435

(2d ed. 1950). In light of the political nature of this action,

and the criminal penalties provided by § 23-15-811, the

Chancery Court had no power under Mississippi law to

enjoin the broadcast of these advertisements.

9a

CONCLUSION

This Court should summarily vacate the Chancellor’s

order, pursuant to M.R.A.P. 21. Alternatively interlocu-

tory appeal should be granted and the matter set for

briefing and argument, pursuant to M.R.A.P. 5.

Respectfully submitted,

CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA

By: /s/ Michael B. Wallace

MICHAEL B. WALLACE

(MSB #6904)

CHRISTOPHER R. GREEN

(MSB #99593)

PHELPS DUNBAR, L.L.P.

Suite 500 - SkyTel Centré North

200 S. Lamar Street

Post Office Box 23066

Jackson, MS 39225-3066

Telephone: (601) 352-2300

[Certificate Of Service Omitted In Printing]

10a

IN THE CHANCERY COURT OF THE

FIRST JUDICIAL DISTRICT

OF HINDS COUNTY, MISSISSIPPI

FRANK G. VOLLOR PLAINTIFF

VS. NO. G2000-2128 S/2

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA; WABG-TV,

GREENVILLE, MS; WXVT-TV, GREENVILLE,

MS; WAPT-TV, JACKSON, MS; WJTV-TV,

JACKSON, MS; WLBT-TV, JACKSON, MS;

WDBD-TV, JACKSON, MS; WTOK-TV,

MERIDIAN, MS; AND WCBI-TV,

COLUMBUS, MS DEFENDANTS

5b ee Ee Ee a EE 2

TRANSCRIPT OF PROCEEDINGS HELD IN THE ABOVE

STYLED AND NUMBERED CAUSE BEFORE THE HON-

ORABLE WILLIAM H. SINGLETARY, CHANCELLOR,

ON THE 3RD DAY OF NOVEMBER, 2000.

EE EE 2 a

APPEARANCES:

Present and Representing the Plaintiff:

PAUL KELLY LOYACONO, ESQ.

Attorney at Law

1025 Jackson Street

Vicksburg, Mississippi

Present and Representing the Defendants:

MICHAEL B. WALLACE, ESQ.

Phelps Dunbar, L.L.P.

Post Office Box 23066

Jackson, Mississippi 39225-3066

lla

[16] [MR. WALLACE] Nevertheless, Your Honor,

they have come to this Court asking to enjoin the broad-

cast of these advertisements. In addition to their failure to

establish personal jurisdiction over the Chamber, they

have failed to allege or establish the jurisdiction of this

Court. There is not a single allegation anywhere in this

application that suggests why the chancery court has

jurisdiction over this matter. Indeed, it is not even clear -

as a matter of fact, it is clear to the contrary that no action

is pending before this Court. As the Court knows, Rule 3

says that an action commences with the filing of a com-

plaint, and Rule 65, 65(b), on TRO presupposes a com-

plaint, because it says you may proceed on your verified

complaint. No complaint has been served on me. We have

simply an application for a TRO in an action which has

not been commenced in a court, the jurisdiction of which

has not been established. They suggest that this court is

entitled to enjoin these advertisements, presumably on

the theory that they are illegal.

[17] Your Honor, under any theory of illegality, the

statute itself sets up an enforcement scheme. The enforce-

ment scheme for the reporting statutes and independent

expenditure is a criminal enforcement scheme. Under

Section 23-15-811(a), “Any candidate or any other person

who shall willfully and deliberately . . . violate the provi-

sions and prohibitions of this article shall be guilty of a

misdemeanor. . . . ” Now, again, they’ve not explained

how we have violated the article. But if we have, we have

committed a crime. Now, I’ve not been able to get in the

library, but I did pick up my Griffith’s on the way over

here. And Section 435 of the second edition of Griffith

12a

states, “The courts of equity concern themselves only

with matters of property and with the maintenance of

civil rights and do not interfere with issues that are

purely personal or political or with crimes.” Now, this

case falls in at least two of those categories, Your Honor.

It is political and, according to the allegations of the

application, it is criminal. This Court has no jurisdiction

whatsoever to enjoin the commission of a crime and no

TRO may enter here on these allegations.

Indeed, this statutory scheme puts full enforcement

power in the hands of the attorney general and the secre-

tary of state. There is no provision whatsoever for

enforcement of the statute [18] by private attorney gen-

eral. The most that may be possibly available in the way

of private enforcement is further down in Section

23-15-811. It says, in addition to the criminal penalties,

anyone who fails to file a report “may be compelled to

file such statement or report by an action in the nature of

a mandamus.” If we have failed to follow the reporting

statutes, which we deny, Your Honor, the remedy is for a

mandamus to be brought against us. Because this is a

public statute, the attorney general would have to file

that mandamus. I imagine the Court is familiar with the

cases that suggest when you call on the attorney general

to bring a mandamus and he does not do so, in some

circumstances the private party may bring a mandamus.

None of that is done here. To the extent that there can be

any remedy under the statutory scheme for private par-

ties, that remedy can only be a mandamus after the

attorney general has failed to file it, and the mandamus

goes only to the report. It does not take the ads off the air.

de nin hae A al

Pace Wee SSL AMB LENE or. Dat A

13a

There is one other item. In addition to the fact this

Court has no jurisdiction, no authority to issue an injunc-

tion, this matter remains within the - fully within the

jurisdiction of another court. Judge Wingate has issued an

opinion. He has not issued a judgment as of half an hour

ago when I called over there. The matter [19] is still

before Judge Wingate. The State of Mississippi is repre-

sented in that action by its attorney general and its secre-

tary of state, the officers who are given authority to

enforce this statute. To the extent Judge Vollor claims to

have authority to enforce the statute as a private attorney

general, he is clearly in privity with the public attorney

general, who is presently litigating this matter. And this

matter, then, should be dismissed or abated as long as

jurisdiction over this whole dispute is in another court.

And if Judge Vollor believes that the attorney general is

not properly representing him and he wants to appear as

a private attorney general, the case is still pending, and

he’s welcome to go over there and file his motion to

intervene and his application for relief over there. That’s

where he ought to be.

* * *