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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 972

## Text

\) 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)

H
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

10
‘4

15

19
22

iV
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

la

3a

4a

6a

32a

38a

42a

45a

49a

Vv
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

vi

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

15
14, 18
20-21

16

2

7

4,18
19-20

ix
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

x
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,
oP

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

2

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

3

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).

4

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

5

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 —————————

6

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).

7

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

8

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

9

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).

0

10

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.

11

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).

12

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.

13

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).

14
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

'© The recently-enacted Bipartisan Campaign Reform Act of 2002, Pub.
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.

15

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

16

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.

17

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

18

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.

© Order in Bodack v. Law Enforcement Alliance of Am., Inc., Pa.
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.

19

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.

20

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).

21

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.

22

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1164%3A1. Public record. Not legal advice.