Petition for Writ of Certiorari — Chamber of Commerce of the United States v. Landrum

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\) Supreme Court, US.

FILED

No. 01164 9 my -8 2002

OFFICE OF THE CLEAK

IN THE

Supreme Court of the United States

CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA,

Petitioner.

Vv.

BILLY JOE LANDRUM,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Mississippi

PETITION FOR A WRIT OF CERTIORARI

JAN WITOLD BARAN

Counsel of Record

THOMAS W. KIRBY

WILEY REIN & FIELDING LLP

1776 K Street, N.W.

Washington, DC 20006

(202) 719-7000

Of counsel: MICHAEL B. WALLACE

STEPHEN A. BOKAT

General Counsel

U.S. Chamber of Commerce

PHELPS DUNBAR, L.L.P.

200 S. Lamar Street

Suite 500, Skytel Centre

Jackson, MS 39225

1615 H Street, N.W.

Washington, DC 20062 Counsel for Petitioner

LALLA NRA RICAN A AE TERT BEL SOREL RE SORIA IE SNE Te IDA SE TIRE CE NARS ETOERDE SENS EINE

WILSON-EPES PRINTING CO., INC. — (2U2) 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

A Mississippi chancery court issued a summary order

forbidding petitioner from broadcasting paid advertisements

concerning an impending state election that used the name of

the Respondent candidate. After the Mississippi Supreme

Court denied a motion to dismiss the appeal for lack of a final

and appealable order, the en banc court held that Petitioner’s

request that this Court grant an emergency stay of the prior

restraint waived Petitioner’s state right to appeal. In these

circumstances:

1. Did the Chancery Court’s summary order against

future political speech violate the First and Fourteenth

Amendments to the United States Constitution?

2. Did the Mississippi Supreme Court’s ruling pen-

alizing Petitioner’s exercise of its federal right to petition

this Court by curtailing Petitioner’s state appellate rights

violate the Supremacy Clause of, and the Fourteenth

Amendment to, the United States Constitution?

(i)

CORPORATE DISCLOSURE STATEMENT

The Chamber of Commerce of the United States of

America was incorporated in the District of Columbia in

1916. It is a non-profit, non-stock corporation, exempt from

taxation under I.R.C. § 501(c)(6).

TABLE OF CONTENTS

QUESTIONS PRESENTED..............ccc2eceeceeeeeeeeneesees ia

CORPORATE DISCLOSURE STATEMENT .............

TABLE OF AUTHORITIES ............-::-::eseeeeeeeeeeeeeneeeees

OPINIONS AND ORDERS BELOW ..............:c::ccee00

BUTRRISIDICTION ....ccccscccscsccocscssscscsossscscscncccsosssesscsscescess

The Petition Is Timely ..............::2.ccceseeeeeeeeeeeteeseeeeneees

The Petition Is Not MO0t ..............:c:sceeeeneeeeeeeeeeeeennees

The Petition Challenges A Final Ruling................-...

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .........-..:csscesseeeeenerseeeenees

STATEMENT OF THE CASE.......2...::cccseeeeeeeeeseseeseeees

Prior Restraints Of Chamber Political Speech...........

Stays By This Court And More State Restraints .......

The Mississippi Supreme Court’s Appeal-Rights

Waiver Ruling. ............ccsscesseeseeseeeeeeenseeeseeeeenenneennees

REASONS FOR GRANTING THE WRIT............200++

A. Prior Restraints Against Political Speech Are

A Growing And Disturbing Practice That

Requires This Court’s Review ...........-.-s:ssseseee

B. The Mississippi Supreme Court’s Waiver Rule

Burdens Access To Federal Court Relief And

Threatens To Insulate Prior Restraints From

Judicial REVIEW ............ccccccccccccsscssscceeeceserssssescees

CONCLUSION ...........:cccsssscssssscseccessrscscscessnseecseseeseneeens

CoN TS

‘4

TABLE OF CONTENTS—Continued

APPENDICES

February 7, 2002, Order Of The Supreme Court Of

Mississippi (No. 2000-CA-02048-SCT)..............c

February 28, 2002, Mandate Of The Supreme Court

Se IN scscsincsnssistheniadbudenmieqeoutinshatencessenehddbanasinies

November 5, 2000, Temporary Restraining Order Of

The Chancery Court Of The First Judicial District

Of Jones County, Mississipp1 ..................0..s-ssesseseseees

November 2, 2000, Judge Wingate’s Decision

In Chamber Of Commerce v. Moore, No.

3:00CV778WS, 2000 WL 33709454 (S.D. Miss.

Nov. 2, 2000) (Attachments Omitted) ......................

November 3, 2000, Application For Temporary

Restraining Order In The Chancery Court Of Hinds

County, Mississippi (Attachment Omitted)...............

Transcript Of The November 3, 2000, Proceeding

Held In The Chancery Court Of The First Judicial

District Of Hinds County, Mississippi (Excerpts).....

November 3, 2000, Order Of The Chancery Court Of

The First Judicial District Of Hinds County,

Mississippi Granting Plaintiffs’ Motion For Tem-

porary Restraint Onder .........ccccsceccseesscscscescecsencnnnsses

November 3, 2000, Chamber Motion For Stay Of

Proceedings Pending Disposition Of Petition For

Interlocutory Appeal (Attachments Omitted)............

November 3, 2000, Order Of The Supreme Court Of

I ssiiciscninhiiisonsqiinistensactibnnctileusniigiiatiailatsiaduaicte

November 4, 2000, Temporary Restraining Order

Of The Chancery Court Of Harrison County,

FRR IIIIIN -succoncchisanstenteninitiohindenasndpanteasedienaieianinnisaninies

Page

32a

38a

42a

45a

49a

TABLE OF CONTENTS—Continued

Page

November 5, 2000, Billy Joe Landrum’s Verified

Complaint Filed In The Jones County Chancery

Court (No. 2000-0204).............c..ssscccsccrrcssssrecessseresees 53a

November 5, 2000, Chamber’s Supplement To

Motion For Emergency Stay Of A Prior Restraint

On Political Speech (Attachments Omitted).............. 56a

November 6, 2000, Order Granting Plaintiff's Motion

For Temporary Restraining Order Of The Chancery

Court Of The First Judicial District Of Hinds

Commty, Miasiesigyl.ecccscssisnssassssnsansassnsasssssoantensnososoonas 60a

November 6, 2000, Order Of The Supreme Court Of

The United States Re: Temporary Restraining

Order Granted By The Chancery Court Of The First

Judicial District Of Hinds County, Mississippi ......... 63a

November 6, 2000, Order Of The Supreme Court Of

The United States Re: Temporary Restraining

Orders Granted By The Chancery Court Of

Harrison County, Mississippi And By The

Chancery Court Of The First Judicial District Of

Jones County, MiSSiSSIpP1..........c:scesceesceeeeeesereeeeeeees 64a

November 6, 2000, Application For Temporary

Restraining Order And Preliminary Injunction

(Attachment Omitted) ............:cssesseeseeneeteeeeseteeseseneens 65a

November 7, 2000, Order Of The Supreme Court Of

The United States Re: Temporary Restraining

Order Granted By The Chancery Court Of The First

Judicial District Of Hinds County, Mississippi ......... 72a

December 4, 2000, Chamber Of Commerce Notice Of

Appeal To The Mississippi Supreme Court In

Landrum v. Chamber Of Commerce (Jones County

Chancery Court No. 2000-0204-E)........:esssesessseesees 73a

TABLE OF CONTENTS—Continued

January 3, 2001, Appellee Landrum’s Motion To

Docket And Dismiss The Chamber Of Commerce's

Appeal And Brief In Support (Attachments

January 23, 2001, Final Judgment Of The United

States District Court For The Southern District Of

PORTIS coccsocccuesscetsscndeschenmnnibeniabanisieasiamaaaninl

March 2, 2001, Mississippi Supreme Court’s Order

Denying Landrum’s Motion To Docket And

Dismiss The Chamber Of Commerce’s Appeal.........

March 14, 2001, Chancellor Frank McKenzie’s Order

On Proceedings In Landrum v. Chamber Of

Commerce (No. 2000-0204-E)..........cccccccccccccsceeseeeeees

May |, 2001, Brief Of Appellant The Chamber Of

Commerce Before The Mississippi Supreme Court

(0 _ ee

June 25, 2001, Brief Of Appellee Landrum Before

The Mississippi Supreme Court..............ccccccceeeeseeeees

October 23, 2001, Temporary Restraining Order

Entered In Bodack v. Law Enforcement Alliance Of

America, Inc. (PA Court of Common Pleas For

Allegheny County No. GD-01-0121066) ..................

April 3, 2002, Amended Complaint Filed In Landrum

v. Chamber Of Commerce (Chancery Court No.

2OBO-GBB4- Be) .cccccccccsccesessscnnninnsensiansssinsnaanaiiiaainian

April 5, 2002, Fifth Circuit’s Decision In Chamber of

Commerce v. Moore, No. 00-60779, 2002 WL

EX Te fee 2

Page

75a

86a

89a

1S7a

l6la

Vii

TABLE OF CONTENTS—Continued

Page

April 26, 2002, Mississippi Supreme Court Docket

Sheet In: Chamber Of Commerce v. Vollor (Dkt.

20O0-M-0 1839) ........ccceesccesscesscsssrceesssesesssnessenesensenees 188a

190a

Mississippi Election Statutes (Excerpts)..........------+-+-+-+

Vill

TABLE OF AUTHORITIES

CASES

Alexander v. United States, 509 U.S. 544 (1993),

cert. denied, 522 U.S. 869 (1997).........ccccccceeeees

Bodack v. Law Enforcement Alliance of America,

me Fe cc fs 5 Renae

Boddie v. Connecticut, 401 U.S. 371 (1971).........

Buckley v. Valeo, 424 U.S. 1 (1976)... eee

Chamber of Commerce v. Moore, No.

3:00CV778WS, 2000 WL 33709454 (S.D.

hs Ws tis A scctnsnintceiniedasceetnadéeibbbinansbtincias

Chamber of Commerce v. Moore, No. 00-60779,

2002 WL 518638 (Sth Cir. Apr. 5, 2002)..........

Chamber of Commerce of the -United States of

America v. Vollor, 532 U.S. 1058 (2001)..........

Donovan vy. Dallas, 377 U.S. 408 (1964)...............

Elections Board v. Wisconsin Manufacturers &

Commerce, 597 N.W.2d 721 (Wis. 1999), cert.

denied, 528 U.S. 969 (1999) ............ccccsesssseeeeees

Elrod v. Burns, 427 U.S. 347 (1976) .........ccccecceeees

FEC v. Massachusetts Citizens for Life, Inc., 479

es Mer ciate tasiciciieticiaelipaintalilaileaitieamnenianl

Felder v. Casey, 487 U.S. 131 (1988)... eee.

First National Bank of Boston v. Bellotti, 435

i FORE eee ewiicsenssiniesasaniinsadgacattiaenpaedenommaas

Freedman v. Maryland, 380 U.S. 51 (1965)..........

Garrett v. Moore-McCormack Co., 317 USS.

BI CPs vicnitiieciticisiaiieiinisidiitemidaanmaiaais ile

General Atomic Co. v. Felter, 434 U.S. 12

Lf, a a NEN EN NEC PA MN TM

James v. Kentucky, 466 U.S. 341 (1984)...

Lee v. Kemna, 122 S.Ct. 877 (2002)..................044.

Logan v. Zimmerman Brush Co., 455 U.S. 422

Page

14, 18

20-21

4,18

19-20

TABLE OF AUTHORITIES—Continued

Page

M_L.B. v. S.L.J., 519 U.S. 102 (1996)... ecceseereesees 20

Moore v. Ogilvie, 394 U.S. 814 (1969)... 2

Natural Gas Pipeline Co. of America v. Slattery,

302 U.S. 300 (1937)... .cscccscesreesreesseeeeerseeteeeeees 20

Nebraska Press Association v. Stuart, 427 USS.

539 (1976) ...ecscscsscssssescseeesnsrenscssseeseneneenenecessrenees 15

New York Times Co. v. United States, 403 US.

TUB (L971) ccscessssssssssesseesseseecesssessseesensnesaeseessrenes 14, 16

Republican Party of Florida v. Florida Elections

Commission, 658 So. 2d 653 (Fla. Dist. Ct.

App. 1995) ...sssessssecsereesessesessseessnsencnsenserensecenencnes 14, 17

Roe v. Wade, 410 U.S. 113 (1973)... ceeeeeereeseteees 3

Southern Pacific Terminal Co. v. ICC, 219 USS.

AOE (1911) ccecscssescsssseseseseenseetssesenenenenennceesesseeess 3

United States v. Nixon, 418 U.S. 683 (1974)......... 13

Vance v. Universal Amusement Co., 445 US.

3O8 (1980)... essscsseseseseeceeessesseesessnsnenenecesesseens 16

Weinstein v. Bradford, 423 U.S. 147 (1975)... 2

CONSTITUTION

U.S. Const., Art. VI, Cl. 2....ceeceeseesseeereeeneetreeeeees 4

U.S. Const. amend I ..........cseccesseeeseseseeeeeeesnneeeees 4

U.S. Const. amend XIV, § 1 .....e:ceesesesseeeteeteeeeess 4

STATUTES

28 U.S.C. § 1257(a) (2000).......secserereerereeseereseeees 2,13

28 U.S.C. § 2101 (€) (2000)... erceerereeeeeretstseertes 13

Bipartisan Campaign Reform Act of 2002, Pub.

L. NO. 107-155 ....c.cccsscccssssscnscsccecssseessnseeessnneseoes 14

Miss. Code Ann. § 23-15-801 (2000) ........-s0+ 6-7, 9

Miss. Code Ann. § 23-15-803 (2000) .........-:-+100+ 5-6

Miss. Code Ann. § 23-15-807 (2000) ........---+00+ 5-6

Miss. Code Ann. § 23-15-809 (2000) ........::-::+10+ 6,9

Miss. Code Ann. § 23-15-811 (2000) .......:-:+1 6

—_”™

— iaamaaaa am mmameaiiaaiiaea

TABLE OF AUTHORITIES—Continued

Miss. Code Ann. § 23-15-813 (2000) ..............0.....

Miss. Code Ann. § 23-15-1021 (2000) ..................

Miss. Code Ann. § 97-13-15 (2000)............0..000....

Miss. Code Ann. § 97-13-17 (2000) ................0000.

MISCELLANEOUS

13 James Wm. Moore, Moore’s Federal Practice

Ae Ci BFR cckstiticicscchisedidninnaanmnasine

15A Charles Alan Wright, et al., Federal Practice

and Procedure, § 3912 at 449-50 (2d ed.

SUFI D xanciabisnssnducddtcdinmsmenchsadsealstcadtibacensadbinidpaimmlancs

Beverly Pettigrew Kraft, Chamber TV Ads On,

Off Again, The Clarion-Ledger, Nov. 7, 2000...

8, 10

IN THE

Supreme Court of the United States

CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA,

Petitioner,

BILLY JOE LANDRUM,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Mississippi

PETITION FOR A WRIT OF CERTIORARI

The Chamber of Commerce of the United States of

America (“Chamber”) respectfully petitions for a writ of

certiorari to review the February 7, 2002, Order of the Missis-

sippi Supreme Court holding that, by seeking emergency

relief from this Court, the Chamber waived its right to state

appellate consideration of its First Amendment challenges

to a prior restraint against the Chamber’s political speech

that was issued on Sunday, November 5, 2000, by

the Chancery Court of the First Judicial District of Jones

County, Mississippi. .

OPINIONS AND ORDERS BELOW

The February 7, 2002, Order of the Mississippi Supreme

Court (No. 2000-CA-02048-SCT) is at Pet. App. la. The

November 5, 2006, Order of the Chancery Court of the First

Judicial District of Jones County, Mississippi (No. 2000-

0204-E) is at Pet. App. 4a. Also included in the Appendix are

the March 2, 2001, Order of a panel of the Mississippi

Supreme Court denying the motion to dismiss the appeal and

stays issued for this Court by Justice Scalia of the November

5 Order and of several similar Orders (Pet. App. 89a, 64a,

63a, and 72a). None of these orders is officially reported. '

JURISDICTION

The jurisdiction of this court is invoked under 28 U.S.C.

§ 1257(a) (2000).

The Petition Is Timely

The Mississippi Supreme Court entered its order on

February 7, 2002.

The Petition Is Not Moot

Where, as here, “the challenged action [is] in its duration

too short to be fully litigated prior to its cessation or

expiration” and “there [is] a reasonable expectation that the

same complaining party would be subjected to the same

action again,” this Court will grant review despite traditional

jurisdictional constraints. Weinstein v. Bradford, 423 U.S.

147, 149 (1975); see also Meyer v. Grant, 486 U.S. 414, 417

n.2 (1988); Moore v. Ogilvie, 394 U.S. 814, 816 (1969).

The November 5, 2000, prior restraint challenged here

enjoined speech concerning the candidacy of Respondent

Judge Landrum in an election that occurred two days later on

' Reference is made herein to an opinion of the United States District

Court for the Southern District of Mississippi, Chamber of Commerce v.

Moore, No. 3:00CV778WS, 2000 WL 33709454 (S.D. Miss. Nov. 2,

2000), and an opinion of the United States Court of Appeals for the Fifth

Circuit reversing the district court, No. 00-60779, 2002 WL 518638 (Sth

Cir. Apr. 5, 2002). These opinions and their holdings are not challenged

by this petition, but they are included as background material at Pet. App.

6a-3 1a and 170a-187a, respectively.

Ca ee See te Coe cee ee ere

November 7, 2000, which Respondent lost. Elections typic-

ally occur over a relatively short period, and prior restraints

against election-related speech tend to be granted as the

election nears. But even if a prior restraint were granted

months prior to an election, orderly pre-election review on the

merits seldom, if ever, would be practical. See Roe v. Wade,

410 US. 113, 125 (1973) (the typical human gestation period

is too short to allow orderly review). Thus, although the

Chamber expects to engage in similar speech during future

elections in Mississippi and elsewhere, there is little

likelihood that similar future orders will reach this Court for

review before the relevant election. In short, this case is not

moot because this is a classic example of a case that is

“capable of repetition, yet evading review.” S. Pac. Terminal

Co. v. ICC, 219 U.S. 498, 515 (1911).

The Petition Challenges A Final Ruling

The petition here challenges a final appellate judgment

concerning a final trial court judgment.’ The Mississippi

Supreme Court’s February 7, 2002, Order that the Chamber

waived its right to appeal means that the November 5, 2000,

Order cannot be reviewed for constitutionality unless

2 Moreover, the underlying prior restraint order was final because it

granted all the relief that Judge Landrum sought. See 15A Charles Alan

Wright, et al., Federal Practice and Procedure, § 3912 at 449-50 (2d ed.

1992) (“{I]f suit is brought solely for the purpose of obtaining short-term

injunctive relief, an order granting a temporary restraining order may be

found appealable as a final judgment on the ground that it has effectively

granted all the relief sought in the action”); 13 James Wm. Moore,

Moore’s Federal Practice § 65.41 (3d ed. 1997) (“the issue of appeal-

ability is not limited by the trial court’s terminology”; “when the grant or

denial of a temporary restraining order may dispose of the action for

injunctive relief, the grant or denial has been held appealable”). Sig-

nificantly, the Mississippi Supreme Court’s Order of March 2, 2001,

denied a motion to dismiss for lack of finality. (Pet. App. 89a).

certiorari is granted by this Court.’ The Mississippi Supreme

Court’s waiver ruling is a final ruling. Significantly, the

Mississippi Supreme Court denied Appellee Landrum’s

motion to dismiss the appeal for lack of finality.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Supremacy Clause of the United States Constitution,

Article VI, clause 2, provides that the “Constitution, and the

laws of the United States . . . shall be the supreme Law of the

Land; and that Judges in every state shall be bound thereby,

anything in the Constitutions or Laws of any state to the

contrary notwithstanding.”

The First Amendment to the United States Constitution

provides that Congress “shall make no law . . . abridging the

freedom of speech, or of the press.” U.S. Const. amend I.

The Fourteenth Amendment to the United States Con-

stitution forbids any State to “make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States” or to “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend

XIV, § 1.

No Mississippi statute purports to authorize either the prior

restraint or the waiver challenged through this petition. This

petition does not request construction or invalidation of any

* A petition for writ of certiorari challenging another similar prior

restraint related to the same Chamber of Commerce broadcasts was filed

on February |, 2001. Chamber of Commerce v. Vollor, S. Ct. Dkt. No.

00-1255. The respondent there argued that the Mississippi Supreme Court

first should be given a chance to consider an appeal on the merits, and

certiorari was denied by this Court’s order of May 29, 2001. Chamber of

Commerce v. Vollor, 532 U.S. 1058 (2001). The Mississippi Supreme

Court’s February 7, 2002, Order removes that prematurity objection, and

raises a separate and distinct issue of importance to future elections that

also merits review.

Ah hk Aa he td 70 aa wer LYS

Mississippi statute regulating elections. However, certain

Mississippi campaign finance statutes form part of the

litigation background from which this petition arises and,

thus, are included at Pet. App. 190a.

STATEMENT OF THE CASE

This petition challenges one of four Mississippi state court

orders that enjoined the public broadcast of certain Chambe:

advertising just before Mississippi's November 7, 2000,

election of four members of the Mississippi Supreme Court.

The core objective of the petition is to establish explicitly and

authoritatively that the increasing tendency of state courts to

enjoin political speech is unconstitutional.

The Chamber is a non-profit organization that represents

business interests in dealing with all branches and phases of

government. Concerned that Mississippi voters understand

the issues raised by the Supreme Court candidates and race,

the Chamber produced television advertisements that it aired

during the three weeks before the election. These adver-

tisements addressed the background, experience, and qualifi-

cations of several candidates.

Prior Restraints Of Chamber Political Speech

Shortly after the Chamber began running its ads, a dispute

arose with Mississippi’s Secretary of State Eric Clark and

Attorney General Michael Moore as to whether the Cham-

ber’s ads contained “express advocacy” and, hence, might be

subject to regulation by Mississippi. Seeking to clarify the

legal situation, the Chamber brought a declaratory judgment

action in the United States District Court for the Southern

District of Mississippi, Chamber of Commerce v. Moore,

No. 3:00CV778WS (S.D. Miss. filed Oct. 23, 2000). The

action named Attorney General Moore and Secretary of State

Clark as the defendants.”

‘ Mississippi law imposes registration and disclosure requirements on

organizations that make “expenditures,” Miss. Code Ann. §§ 23-15-803 &

rE —————————

On November 2, 2000, United States District Court

Judge Henry T. Wingate issued a Memorandum Opinion and

Order in the Chamber’s declaratory judgment action, No.

3:00CV778WS, 2000 WL 33709454 (S.D. Miss. Nov. 2,

2000). (Pet. App. 6a). As Judge Wingate explained, defend-

ants had argued only that the Chamber’s ads “expressly

advocate the election of the favored candidates for the four

Mississippi Supreme Court seats,” (Pet. App. 8a), and thus

were “‘independent expenditures’ subject to the reporting

requirements” of Mississippi law. (Pet. App. 10a). Defend-

ants had acknowledged having “no proof whatsoever of any

collaboration between the Chamber wu... the candidates

involved in the advertisements.” (Pet. App. 8a).

Judge Wingate’s descriptions of the ads appear at Pet. App. .

12a-14a. He recognized that the advertisements lacked |

explicit language advocating electoral action. However,

adopting what he conceded to be a minority legal position, )

Judge Wingate ruled that the Chamber’s ads fell within a

“(b]roader [i]nterpretation” of express advocacy. (Pet. App.

21a-3la). Thus, Judge Wingate concluded that the “Chamber ’

must answer under Mississippi’s contribution limits and

23-15-807 (2000). Additional reporting requirements apply to organiza-

tions that make “independent expenditures” that “expressly advocat{e] the

election or defeat of a clearly identified candidate.” /d. §§ 23-15-801(j) &

23-15-809. Mississippi law also restricts direct or indirect corporate

“contributions” made “for the purpose of aiding any political party or any

candidate for any public office.” /d § 97-13-15. (See Pet. App. 192a,

191a, 194a, and 201a). No one has disputed that these provisions apply

only to speech that “in express terms advocate[s] the election or defeat of

a clearly identified candidate” within the holding of Buckley v. Valeo, 424

U.S. 1, 44 n.52 (1976) (per curiam). Defendants argued, however, that the

Chamber’s ads were express advocacy because they clearly implied

support of or opposition to particular candidates. The Mississippi elec-

tion law does not purport to authorize injunctive relief as to violative

advertisements, but instead provides for post-violation punishment. /d

§§ 23-15-813 (civil penalties); 23-15-81 1 & 97-13-17 (criminal penalties).

(Pet. App. 196a, 195a, and 202a).

reporting requirements as found at Mississippi Code Anno-

tated §§ 23-15-801 et seq.” (Pet. App. 31a). This opinion

made no mention of injunctive relief.

The district court ruling did not become final until Judge

Wingate entered judgment on January 23, 2001. (Pet. App.

86a). The Chamber promptly appealed, and on April 5, 2002,

a panel of the Fifth Circuit unanimously reversed. Chamber

of Commerce v. Moore, No. 00-60779, 2002 WL 518638 (Sth

Cir. Apr. 5, 2002) (Pet. App. 170a).”

Although the district court ruling admittedly rested on a

minority legal view and now has been reversed, Petitioner

does not seek, through this petition, a further exegisis of the

“express advocacy” standard. Regardless of whether Judge

Wingate’s opinion was right or wrong, Petitioner’s First

Amendment challenge to the prior restraint remains intact.

Beginning on Friday, November 3, 2000, Mississippi

chancellors began summarily enjoining the Chamber's broad-

cast advertisements concerning the impending November 7

election. The first such order was issued at about 4:00 p.m.

on Friday, November 3, after a brief hearing of which the

Chamber’s counsel received only oral notice and at which he

received the motion papers as he arrived. (Pet. App. 42a, 38a,

and 32a). In those papers, the plaintiff, Judge Vollor, asserted

that Judge Wingate’s opinion of the day before established

that the Chamber's ads were unlawful and that, because the

election was imminent, an immediate ban on the Chamber's

advertisements was necessary to protect Judge Vollor from

them. Such an order was issued.° (Pet. App. 42a).

* A petition for rehearing en banc was filed on April 25, 2002.

‘The order forbade both the Chamber and a variety of television

stations from:

contracting to transmit or transmitting any television advertisement,

which is paid for or produced by the Chamber of Commerce of The

That same afternoon, the Chamber sought an emergency

stay from the Mississippi Supreme Court, arguing there, as its

counsel had at the hearing, that the order violated the First

Amendment. (Pet. App. 45a). At 6:00 p.m., the Mississippi

Supreme Court “denied” the Chamber’s stay application as

“without merit.”’ (Pet. App. 49a). The Chamber then turned

to this Court.

Stays By This Court And More State Restraints

The Chamber’s November 4, 2000, Motion for Emergency

Stay of a Prior Restraint on Political Speech (No. 00A406)

was delivered to this Court on Saturday, November 4. On

the morning of Monday, November 6, 2000, Justice Scalia

ordered stayed the November 3 prior restraint “pending the

timely filing and disposition of a petition for writ of cer-

tiorari.” (Pet. App. 63a).

Meanwhile, on Saturday, November 4, the Chancery Court

of Harrison County issued another prior restraint, this one at

the request of candidate Supreme Court Justice Oliver Diaz.

(Pet. App. 50a). The next day, Sunday, November 5, the

Chancery Court of Jones County granted to Judge Landrum

the prior restraint challenged by this petition. (Pet. App. 4a).

Both of these orders were issued ex parte.

Judge Landrum’s verified complaint alleged that the

Chamber “purchased political advertisements promoting an

United States of America, its agents, servants, or employees,

concerning the Central District election for the Supreme Court of

Mississippi between Jim Smith and Frank G. Vollor.

(Pet. App. 44a). The enjoined stations ceased broadcasting the ads. See

Beverly Pettigrew Kraft, Chamber TV Ads On, Off Again, The Clarion-

Ledger, Nov. 7, 2000, available at http://www.clarionledger.com/news/

001 1/07/07chamber.html.

” This Order was entered by a panel composed of Presiding Justice

Banks and Justices McRae and Waller, none of whom then was a

candidate for election.

Suh AEE Wl 2 ST NS A Ald tn 2 ea A, a Rb tite.

Seatihcat ete aieeh.s° ata ee BaP Mi aey

opponent of the Petitioner, said ads being in violation of

§ 23-15-1021” of the Mississippi Code and further alleged,

erroneously, that “the violation of said section has been found

in an Opinion written by the Honorable Henry T. Wingate.”

(Pet. App. 54a). Of course, that was not accurate. Even

assuming that the Wingate opinion justified a prediction that

the current Chamber ads were likely to be determined to be

“express advocacy’—a counter-factual assumption—the

opinion expressly noted the absence of any coordination by

the Chamber with any candidate. (Pet. App. 8a). Absent

coordination, even express advocacy would not constitute

unlawful speech. See supra n.4. At most, Judge Wingate’s

opinion suggested that the Chamber might eventually be

obliged to file a report with Mississippi authorities.® Judge

Landrum offered no evidence of any coordination. However,

since the order was issued ex parte on Sunday afternoon, the

Chamber had no opportunity to discuss those points with

the court.

Because the new prior restraints and the applications

therefor were not materially different from the first, and

because resort to the Mississippi Supreme Court would be

futile. the Chamber immediately supplemented its stay appli-

cation in this Court, seeking relief from those further orders

as well. See November 5, 2000, Supplement to Motion for

Emergency Stay of a Prior Restraint on Political Speech (No.

004406) (Pet. App. 56a). At about noon on November 6,

Justice Scalia issued a further Order staying the November 4

and 5 Orders. (Pet. App. 64a).

On Monday, November 6, after Justice Scalia had stayed

the first order, Judge Vollor’s counsel went back before the

same Hinds County Chancellor who had issued the first prior

restraint. Ostensibly acting on behalf of “William A. Pyle, a

8 Mississippi law imposes reporting requirements on organizations that

make “independent expenditures.” Miss. Code Ann. §§ 23-15-8014) &

23-15-809 (2000). (Pet. App. 191a and 194a).

citizen of Mississippi,” Judge Vollor’s counsel applied for a

new prior restraint. (Pet. App. 65a). (In fact, Mr. Pyle is a

lawyer and had assisted Judge Vollor’s counsel in an

undescribed capacity during the first TRO hearing of Novem-

ber 3.) (Pet. App. 39a). The motion papers confirm that both

counsel and the Chancellor were aware of Justice Scalia’s

stay. (Pet. App.70a). Judge Vollor’s lawyer and the Chancel-

lor both knew who was representing the Chamber since he

had appeared to oppose issuance of the first prior restraint on

November 3. Nevertheless, without giving notice to the

Chamber or permitting it any opportunity to be heard, the

Chancellor granted another and even broader injunction

against the Chamber’s election-related speech. (Pet. App.

60a). Again, the papers relied on Judge Wingate’s opinion as

the only evidence of supposed illegality.

fe tn te lh ts em

ee ee

Upon obtaining the fourth prior restraint, the Chamber

again supplemented its application for a stay from this Court.

See November 6, 2000, Second Supplement for Emergency

Stay of a Prior Restraint on Political Speech (No. 00A411).

Another stay was promptly granted by Justice Scalia. (Pet.

App. 72a). Stations resumed broadcasting Chamber ads on

the evening of November 6.”

The Mississippi Supreme Court’s

Appeal-Rights Waiver Ruling

Judge Landrum came in third in the November 7 balloting

and thus was eliminated as a candidate. Shortly thereafter,

the Chamber timely appealed the Landrum prior restraint to

the Mississippi Supreme Court. (Pet. App. 73a). Judge

Landrum then moved to dismiss the appeal as not being

taken from a “final order.” (Pet. App. 75a). The Chamber

responded that, under both Mississippi and federa! practice,

* See Beverly Pettigrew Kraft, Chamber TV Ads On, Off Again, The

Clarion-Ledger, Nov. 7, 2000, available at http://www.clarionledger.

com/news/001 1/07/07chamber.html.

an order that grants a plaintiff all the relief he seeks is final,

regardless of what it is called. See supra at n.2. A panel of

the Mississippi Supreme Court denied the motion to dis-

miss. (Pet. App. 89a). The appeal was then briefed and,

at the court’s direction, submitted for decision without

oral argument.

The Chaimber’s brief argued, inter alia, that the ex parte

order constituted an unconstitutional prior restraint. (Pet.

App. 93a). Judge Landrum’s brief argued, inter alia, that

temporary restraining orders are not appealable, the Court

might sidestep broader issues by invalidating the order

involved for lack of prior notice to the Chamber, and, on

the propriety of the ex parte order itself, that “the Chancellor

did not err or abuse his discretion in granting the TRO.”

(Pet. App. 139a).

Neither party argued or suggested any waiver of appel-

late rights by the Chamber. Nevertheless, the Mississippi

Supreme Court’s single-page February 7, 2002, Order, deny-

ing the Chamber relief, provided as follows:

This matter having come before the en banc Court on the

appeal filed by the C hamber of Commerce of the United

States of America (Chamber) in the above styled case.

After due consideration, we find that the Chamber

waived its right to appeal this case to this Court when it

chose to file a motion to stay the state court proceedings

with the United States Supreme Court. Furthermore, the

Court considered the fact that the C hamber failed to

appear at the temporary restraining order (TRO) hearing

in the Chancery Court of the First Judicial District of

Jones County. This Court takes notice that the TRO

issued by the Chancery Court of the First Judicial

District of Jones County expired within ten (10) days.

The case is hereby remanded to the Chancery Court of

the First Judicial District of Jones County for any further

proceedings not inconsistent with this order.

(Pet. App. 1a) (Emphasis added).

Significantly, the Mississippi Supreme Court did not

reverse the panel’s ruling that the appeal otherwise was

proper. Instead, exercising its jurisdiction, it held that the

Chamber had “waived its right to appeal this cuse to this

{ Mississippi] Court” by filing “a motion to stay the state court

proceedings” with this federal Court.’ The Order cited no

authority for the waiver rule relied upon, and Petitioner

knows of none."

The Order also comments that the “Court considered the

fact that the Chamber failed to appear at the temporary

restraining order (TRO) hearing in the Chancery Court of the

First Judicial District of Jones County,” but it does not

ascribe any weight to that consideration. Nor could it

plausibly have done so. The prior restraint order set “‘a hear-

ing . . . on whether or not this injunction should become

permanent on the 8th day of November.” (Pet. App. Sa).

Since the election occurred on November 7 and Judge

Landrum lost, there was no possibility that “this injunc-

tion”—which only dealt with election-related speech adverse

to Judge Landrum’s candidacy—could be made permanent.

As described in the Order On Proceedings that the trial judge

prepared for the Mississippi Supreme Court, when the

Chamber did not appear on November 8, the trial judge

displayed no surprise and evinced no displeasure, nor did he

'° The Order states that the appeal was considered “en banc.” Of the

nine then-sitting Mississippi Supreme Court justices, three were can-

didates in the November 7, 2000, election, and two, Justice Diaz (TRO #2

and TRO #3) and Justice Smith (TRO #1 and TRO #4) were candidates in

the races addressed by the prior restraints.

'' The Chamber petitioned the Mississippi Supreme Court to review

the first prior restraint, but that Court never accepted the appeal or set a

briefing schedule. Chamber of Commerce v. Vollor, No. 2000-M-01839.

(Pet. App. 188a). Because the Chamber sought relief in this Court as to

all of the Mississippi prior restraints, the waiver rule applied in this

case by the Mississippi Supreme Court presumably would apply to that

appeal also.

take any action as a result.'2, (Pet. App. 90a). As noted

above, Respondents’ brief to the Mississippi Supreme Court

did not argue that any waiver had occurred.

Following the Mississippi Supreme Court’s February 7,

2002, Order, Billy Joe Landrum obtained leave to amend his

complaint to seek a “permanent injunction,” as well as

“compensatory and actual damages and punitive damages”

from the Chamber, while dropping the media defendants who

apparently had defeated diversity jurisdiction." (Pet. App.

16la). On April 8, 2002, the Chamber removed the new

claim to federal court on the grounds, inter alia, that diversity

now exists and that Judge Landrum’s new claim for emo-

tional injury damages based on a previously unheard of tort of

interference with an election is an entirely new claim for

which a new removal period runs.'* The parties have agreed

to stay that action pending the outcome of this petition and of

any further appeal of the Fifth Circuit ruling.'°

'2 Moreover, and ironically, although the Chamber’s Washington, D.C.

counsel ultimately obtained a copy of the prior restraint order informally,

Judge Landrum and his counsel never served it on the Chamber’s

Mississippi counsel. That counsel (who spent November 6 litigating

another matter for the Chamber), never received a copy or learned of the

potential November 8 hearing until much later.

'3 That leave was obtained orally during a hearing on April 3, 2002,

before the Fifth Circuit’s April 5, 2002, decision in Moore was released.

'4 See Billy Joe Landrum v. Chamber of Commerce, John Does A-Z,

No. 2:02CV93PG (S.D. Miss. filed Apr. 8, 2002).

'S Nothing in 28 U.S.C. § 1257(a) (2000) suggests that this Court’s

express authority to review the final judgment or decree of a state supreme

court is defeated when a post-judgment ruling by a state trial court leads

to federal removal. However, if the Court deemed it necessary to perfect

or maintain its jurisdiction, it could grant certiorari before judgment to

the U.S. District Court for the Southern District of Mississippi under

28 U.S.C. § 2101(e) (2000). See United: States v. Nixon, 418 US.

683 (1974).

REASONS FOR GRANTING THE WRIT

The most fundamental reason that certiorari should be

granted is to correct the increasing tendency of state courts to

impose summary prior restraints on core political speech as a

way of preventing supposed election law violations. The

First Amendment simply does not allow injunctions against

future political speech—at least in absence of an immi-

nent threat to national security. See New York Times

Co. v. United States, 403 U.S. 713, 725-26 (1971) (Brennan,

J., concurring).

Regrettably, the four Mississippi prior restraints issued

prior to the 2000 elections do not stand alone. Before the

Mississippi events described above, similar restraints were

imposed by state courts in Wisconsin and Florida. See

Elections Bd. v. Wisc. Mfrs. & Commerce, 597 N.W.2d 721,

725 (Wis. 1999), cert. denied, 528 U.S. 969 (1999);

Republican Party of Fla. v. Fla. Elections Comm’n, 658 So.

2d 653, 653-55 (Fla. Dist. Ct. App. 1995). A similar scenario

was recently played out in connection with the November 6,

2001, Pennsylvania Supreme Court elections. See Order in

Bodack v. Law Enforcement Alliance of Am., Inc., Pa. Ct.

Common Pleas (Allegheny Cty.) No. GD-01-121-66 (Oct. 23,

2001). (Pet. App. 157a). In that case as well, the

Pennsylvania Supreme Court denied an application for

emergency relief from the prior restraint. Bodack v. Law

Enforcement Alliance of Am., Inc., 790 A.2d 277 (2001). It is

no secret that there is a strong inclination in some quar-

ters to greatly expand regulation of campaign speech.'®

Unless this Court swiftly and authoritatively reaffirms the

L. No. 107-155, seeks to replace the “express advocacy” test with a

broader standard for federal purposes. Whatever standard applies, the

issue of using summary prior restraint to ban political speech remains

the same.

fundamental impropriety of imposing prior restraints on

political speech, this practice will continue, and expand.

The Court also should grant the writ to vindicate its own

critical role in our federal system. The fourth Mississippi

prior restraint, knowingly issued on November 6 in the face

of the stays granted by Justice Scalia, might be disregarded as

a regrettable act by one individual. But the Mississippi

Supreme Court’s invention of a new rule that a party who

seeks relief from this Court may be penalized by loss of state

appellate rights is a considered act that also is notably hostile

to this Court’s role. Moreover, it is contrary to. the Suprem-

acy Clause and to due process.” This petition does not ask

this Court to revisit the meaning of “express advocacy.” That

issue is separate and distinct from the propriety of issuing

prior restraints against political speech.

A. Prior Restraints Against Political Speech Are A

Growing And Disturbing Practice That Requires

This Court’s Review.

“Temporary restraining orders and permanent injunctions

—i.e., court orders that actually forbid speech activities—are

classic examples of prior restraints.” Alexander v. United

States, 509 U.S. 544, 550 (1993), cert. denied, 522 USS.

869 (1997).

Prior restraints are “the most serious and the least toler-

able” form of speech regulation. Neb. Press Ass’n v. Stuart,

427 US. 539, 559 (1976) (collecting authority). They are

strongly presumed to be unconstitutional, even when their

'7 In any event, the newly announced “waiver” rule is not an adequate

and independent state ground that would bar consideration of the First

Amendment claim. Only “‘firmly established and regularly followed’

state rules . . . will be adequate to foreclose review of a federal claim.”

Lee v. Kemna, 122 S.Ct. 877, 885 (2002) (quoting James v. Kentucky, 466

U.S. 341 (1984)).

se emer ELLE. DL TEST ee Os

goal is to regulate a form of speech that the First Amendment

does not protect. See Vance v. Universal Amusement Co.,

445 U.S. 308, 315-16 (1980) (per curiam) (collecting author-

ity).'* Where a prior restraint otherwise might be permis-

sible, such as in regulating obscenity, it may not be imposed

until after a final determination that the speech actually is

obscene. See id. at 316-17. Political speech lies at the heart

of the First Amendment. See First Nat’l Bank of Boston v.

Bellotti, 435 U.S. 765, 776 (1978). This Court has never

sustained an injunction against prospective political speech.

Although Buckley v. Valeo, 424 U.S. 1 (1976), and FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)

(MCFL), held that so-called “express advocacy” nay be

regulated and that violations may be punished, they never

suggested that prior restraints—much less summary prior

restraints after little or no chance to respond—are appro-

priate. However, this Court has not explicitly and directly

held that such prior restraint is forbidden, and those seeking

such restraints now can point to at least nine such orders in

recent years, two of which issued despite the stays granted

by Justice Scalia in dealing with the 2000 Mississippi elec-

tion situation.

The circumstances that led to the Mississippi injunctions

are clear. Busy trial judges were importuned by candidates

(fellow judges in Mississippi) with urgent claims that they

were being injured by unlawful activity that, if not stopped

immediately, would influence an impending election, causing

) them irreparable injury. Reassured by Buckley and MCFL

'’ Freedman v. Maryland, 380 U.S. 51 (1965), contains criteria

applicable to prior restraints. However, Justice Brennan, the author of

Freedman, \ater explained that it “rest[s] upon the proposition that

‘obscenity is not protected by the freedoms of speech and press.’” New

York Times Co., 403 U.S at 726 n.* (1971) (Brennan, J., concurring).

Following that concurrence, this Court has not applied Freedman to

speech that categorically is protected by the First Amendment.

that some election-related political speech is subject to

regulation, the trial courts summarily granted injunctions,

even on an ex pace basis. AS a result, advertising was

suppressed at a vital time for political speech, immediately

before an election.

Mississippi judges were not the first to grant prior

restraints against political speech, nor were they the last.

Comparable prior restraints earlier had been imposed in both

Wisconsin and Florida. In Wisconsin, at least three state

circuit courts issued election-week temporary injunctions

restraining an organization, WMC Issues Mobilization

Council, Inc., from broadcasting its advertisements related to

legislative elections to be held on November 5, 1996. See

Wisc. Mfrs. & Commerce, 597 N.W.2d at 725. Despite

emergency challenges by WMC Issues Mobilization Council,

Inc. the injunctions remained in place. Jd. In Florida, the

state Democratic Party sought and received emergency

injunctions before the November 8, 1994, election to stop

television broadcasts of two political ads purchased by the

Republican Party of Florida. A temporary injunction issued

from November 2 to November 4 and, after another hearing,

from November 4. On December |, after the election, a

Florida circuit judge issued a supplemental temporary

injunction after hearing a motion for reconsideration.

Republican Party of Fla., 658 So. 2d at 653-55. Only

belatedly did an appellate Florida court reverse one of these

injunctions as “an unconstitutional prior restraint of speech.”

Id. at 654, 657.

Following the November 7, 2000, Mississippi elections, a

similar TRO restraint was employed prior to the Pennsylvania

Supreme Court elections held on November 6, 2001. At that

time, only the stays of the Mississippi TROs entered by this

Court suggested direct judicial disapproval of the Mississippi

TROs, and the influence of those stays may have been

diminished by this Court’s May 29, 2001, denial of the

related petition for certiorari.'? In any event, on October 23,

2001, two candidates who were incumbent Pennsylvania

Supreme Court Justices secured a TRO from the Pennsyl-

vania Court of Common Pleas against the Law Enforcement

Alliance of America, Inc. (LEAA), restraining any advertis-

ments broadcast for the purpose of influencing the outcome

of the November 6, 2001, judicial elections unless LEAA

certified compliance with the Pennsylvania political commit-

tee registration and reporting requirements.”” Efforts to

secure relief from the Pennsylvania Supreme Court proved

unsuccessful, Bodack, 790 A. 2d at 277, and the restraint

remained in effect until after the election.”!

In sum, such prior restraints are a growing phenomenon.

At least nine have been granted, only one was set aside, and

none have been successfully challenged prior to the

impending election except by stays from this Court. State

courts are not subject to review by the federal courts of

appeals. Only this Court can step in and make clear on a

national basis that prior restraints on speech cannot be

tolerated, at least in the absence of the most exigent

'9 Vollor, 532 U.S. at 1058.

Ct. of Common Pleas (Allegheny Cty.) GD-01-121-66 (Oct. 23, 2001)

(Pet. App. 157a).

*! The Pennsylvania Supreme Court appeared to reason that either the

challenged speech was intended to affect the election, in which case it

properly was regulated, or it was not tied to the election, in which case

suppressing the speech until after the election would not particularly

injure the speaker. Bodack, 790 A. 2d at 278. However, elections are

times when citizens are especially focused on political issues and, hence,

are particularly vital times for political speech, whether or not it is

intended to influence the election. Moreover, this Court has stressed that

even brief periods of speech suppression inflict irreparable injury of

constitutional dimension. Elrod v. Burns, 427 U.S. 347, 373-74 (1976)

(plurality). And finally, there is no doctrine that a mere desire to affect an

election deprives political speech of full constitutional protection.

circumstances, such aS war or other threat to national

security. Certainly such restraints cannot be justified by the

alleged violation of regulatory requirements imposed by

election law statutes or by claims of injurious falsehood of the

type that have always been dealt with by defamation dam-

ages, not injunction.

B. The Mississippi Supreme Court’s Waiver Rule

Burdens Access To Federal Court Relief And

Threatens To Insulate Prior Restraints From

Judicial Review.

The Mississippi Supreme Court’s February 7, 2002, Order

deprived the Chamber of its right to appeal a denial of

federally protected rights solely because the Chamber

properly filed with this Court a motion for stay of the state

court prior restraint. This Mississippi waiver rule, now that it

is known, will force litigants such as the Chamber to make a

choice between two undesirable options: (1) foregoing the

possibility of timely relief from this Court, or (2) foregoing

merits review by the state supreme court.

Thus, the effect of the Mississippi waiver rule is to

substantially burden a Mississippi state court litigant’s right

to invoke a federal court remedy. This imposition appears

designed to and could well have the effect of discouraging

state court litigants from exercising their rights to seek

emergency relief from this Court. State courts are not

generally permitted to impose penalties designed to deny

access to federal remedies or federal courts, and such a

practice is particularly questionable in the context of

enjoining political speech.

As this Court has construed the Supremacy Clause, “it is

not within the power of state courts to bar litigants from

filing and prosecuting in personam actions in federal

courts.” General Atomic Co. v. Felter, 434 U.S. 12 (1977)

(per curiam) (applying principles adopted in Donovan v.

Dallas, 377 U.S. 408 (1964)). Similarly, the authority of

states “to prescribe the rules and procedures governing suits

in their courts . . . does not extend so far as to permit States to

place conditions on the vindication of a federal right.” Felder

v. Casey, 487 U.S. 131, 147 (1988). Thus, “the Supremacy

Clause imposes on state courts a constitutional duty ‘to

proceed in such a manner that all the substantial rights of the

parties under controlling federal law [are] protected.’” /d. at

151 (quoting Garrett v. Moore-McCormack Co., 317 U.S.

239, 245 (1942)).

Simply stated, a state court has no business penalizing a

litigant’s resort to a federal remedy, particularly where that

remedy’s ultimate purpose will be frustrated by the penalty

imposed. Such state action is contrary to the Supremacy

Clause and to the principles of federalism it reflects.

Moreover, this Court’s Fourteenth Amendment precedents

have long recognized that state procedures that deprive civil

litigants of the important right to be heard can constitute a

denial of liberty or property without due process. Logan v.

Zimmerman Brush Co., 455 U.S. 422 (1982) (state procedural

rule denying relief where agency erroneously scheduled a

hearing after a stated cutoff date held to violate due process);

Boddie v. Connecticut, 401 U.S. 371 (1971) (state court filing

and service fees applicable to divorce cases held to prevent

access to the divorce remedy by indigents so as to deny due

process); Natural Gas Pipeline Co. of Am. v. Slattery, 302

U.S. 300 (1937) (applying statutory penalties for violation to

a corporation pending attempt to test validity of order in the

courts would be a denial of due process).””

22 Some decisions have analyzed similar issues using equal protection

concepts as well as due process concepts. See, e.g., M.L.B. v. S.L.J., 519

U.S. 102 (1996) (Mississippi statutes requiring purchase of appeal record

by indigent mothers as prerequisite to appeal in parental rights termination

case held to violate equal protection and due process clauses).

Such decisions establish that “the Due Process Clauses

protect civil litigants who seek recourse in the courts, either

as defendants hoping to protect their property or as plaintiffs

attempting to redress grievances.” Logan, 455 U.S. at 429.

In that context, this Court has interpreted the Due Process

Clause “as preventing the States from denying potential

litigants use of established adjudicatory procedures, when

such an action would be ‘the equivalent of denying them an

opportunity to be heard upon their claimed right[s].’” /d. at

429-30 (quoting Boddie, 401 U.S. at 380). A “State must

afford to all individuals a meaningful opportunity to be heard

if it is to fulfill the promise of the Due Process Clause.”

Boddie, 401 U.S. at 379. Moreover, a “system or procedure

that deprives persons of their claims in a random manner .. .

necessarily presents an unjustifiably high risk that meritorious

claims will be terminated.” Logan, 455 U.S. at 434-35.

A state court waiver rule of the type the Mississippi

Supreme Court has adopted denies groups like the Chamber

the liberty to engage in political speech in violation of due

process within the meaning of the Fourteenth Amendment.

Intervention by this Court is needed to limit expansion of this

rule to others and to other states, as well as to relieve

the burden faced by those engaging in political speech

in Mississippi.

If the Mississippi waiver rule were adopted widely, prior

restraints enjoining election-related speech would become

increasingly unreviewable, with this Court’s power to stay

being the last remaining effective remedy. Review by this

Court of this case is needed before such waiver rules combine

with the increasing use of summary prior restraints on

political speech to act as a fearsome one-two punch

threatening political speakers such as the Chamber.

CONCLUSION

The petition for writ of certiorari should be granted.

Of counsel:

STEPHEN A. BOKAT

General Counsel

U.S. Chamber of Commerc”

1615 H Street, N.W.

Washington, DC 20062

May 8, 2002

Respectfully submitted,

JAN WITOLD BARAN,

Counsel of Record

THOMAS W. KIRBY

WILEY REIN & FIELDING LLP

1776 K Street, N.W.

Washington, DC 20006

(202) 719-7000

MICHAEL B. WALLACE

PHELPS DUNBAR, L.L.P.

200 S. Lamar Street

Suite 500, Skytel Centre

Jackson, MS 39225

Counsel for Petitioner

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