Opposition Brief — Chamber of Commerce of the United States v. Landrum

No.

In the

Supreme Court of the United States

CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA

Petitioner,

\ P

BILLY JOE LANDRUM,

Respondent.

RESPONDENT?’S BRIEF IN OPPOSITION

THOMAS TUCKER BUCHANAN

Counsel of Record

531 North 5" Avenue

P.O. Box 4326

Laurel, Mississippi 39441

Counsel for Respondent

TABLE OF CONTENTS

Table of Contents

Table of Cited Authorities

Introduction

Statement of the Case

Reasons for Denying the Writ

Conclusion

13

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Buckley v. Valeo, 424 U.S. 1 (1976) 10

Golden v. Zwickler, 394 U.S. 103, 109 (1969) 8

Jefferson v. City of Tarrant, Alabama, 6

522 U.S. 75, 81 (1997)

Norman v. Reed, 502 U.S. 279, 288 (1992) 8

Oil Workers Unions v. Missouri, 361 U.S. 363, 8

368-369, 371 (1960)

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) 8

Statutes:

28 U.S.C. § 1257 1,6

INTRODUCTION

Although the petition purports to present a question of

some importance as to the circumstances in which a court is

permitted by the First Amendment to enjoin the massive

expenditure of money designed to affect the outcome of a state

election in violation of state law, this case is not an appropriate one

to decide that question for a series of interrelated reasons. First,

the appeal is from a decision of a state court, and there is no final

judgment in the case as required by 28 U.S.C. § 1257. Second, the

injunction from which the appeal arises has been dissolved, and

there is no reasonable likelihood that a similar dispute will arise

involving these parties that would prevent the case from being

moot. Third, the substantive lega! issues raised by the injunction

are now pending before this Court in a petition for writ of certiorari

by the State of Mississippi in response to the denial by the 5”

Circuit Court of Appeals for a rehearing en banc, and are likely to

be resolved in a way that will make it clear either that petitioner

can or cannot make the kind of expenditures at issue in this case,

and so the case is also unlikely to arise again with any other party

besides this respondent. ©

Fourth, the factual record in this case is extremely sparse,

and hence this Court would be deciding the prior restraint question

in an almost hypothetical manner. Fifth, the procedural posture of

this case as the third of four cases in which temporary restraining

orders were granted shortly before an election, and then traveled

different appellate paths before the orders were dissolved, makes

this a particularly inaypropriate vehicle for passing on the

questions presented. To the extent that the Court believes that the

petition presents recurring issues of importance, they can be dealt

with much more appropriately in another case where the myriad

problems involved here are absent.

STATEMENT OF THE CASE

In general, the petition contains most of the facts necessary

for the Court to decide whether to grant review. However, the

presentation tends to gloss over those aspects of the record that

point out why review is inappropriate. Accordingly, respondent

will briefly namnsiiiien the relevant facts and proceedings.

The petitioner Chamber of Commerce of the United States

began running frequent television advertisements in favor of

certain Mississippi Supreme Court candidates on or about October

17, 2000, three weeks before the election for each of the four seats

on the Court that were being contested. Six days later, the

Chamber filed a declaratory judgment action against the State of

Mississippi and certain state officials in the United States District

Court for the Southern District of Mississippi. After an expedited

hearing requested by the Chamber, that Court ruled on Thursday,

November 2, five days before the election, that the Chamber’s

advertisements were not immune on First Amendment grounds

from Mississippi’s campaign finance laws.

The following day, November 3, the Hon. Frank Vollor,

who was the opponent of Justice Jim Smith, sought and obtained a

temporary restraining order in the Chancery Court of Hinds

County, Mississippi, to prohibit the Chamber from ruaning further

advertisements in support of Justice Smith in violation of

Mississippi law. The next day, November 4, a similar TRO was

issued by the Chancery Court of Harrison County, at the request of

Justice Oliver Diaz, who was running against the Hon. Keith

Starrett (supported by the Chamber), and the respondent, the Hon.

Billy Joe Landrum. On the following day, November 5, a similar

TRO was sought by respondent and granted by the Chancery Court

of Jones County in that same election. That order stated that,

because of insufficient time, it was being granted without notice to

the Chamber. And on November 6, a further TRO was issued

against the Chamber at the behest of a Mississippi citizen who

claimed that his rights were being infringed by the Chamber’s

illegal expenditures. All of these TROs, including the one that is |

the subject of this petition, were stayed on November 6 by Justice

Scalia, and the Chamber resumed broadcasting them and continued

to do so through the November 21* runoff election.

This petition challenges the legality of one of the four

TROs granted by the Mississippi Chancery Court — that issued

against respondent Landrum. When this case was filed, respondent

was a candidate for the Mississippi Supreme Court, but he lost in

that election, and that election is over. Respondent is now, and has

been for 16 years a Circuit Court judge in Mississippi and for 12

years before that he was a county judge. He is now 69 years of

age, and he has authorized counsel to represent to this Court that he

is highly unlikely to seek election to any other court (he is

unopposed in his Circuit Court race for re-election this year). {

Despite the obvious problems of mootness, petitioner

appealed the legality of the stayed and now dissolved TRO for a

since completed election to the Mississippi Supreme Court, which

rejected the appeal because the Chamber chose to by-pass the

eae re |

Mississippi Supreme Court and proceed directly to this Court. The

Mississippi Supreme Court did not dismiss the case entirely or

affirm the judgment below. Instead, it remanded for further

proceedings consistent with its ruling. Respondent then moved to

file an amended complaint, eliminating his claim for injunctive

relief, and in its place, seeking money damages against the

Chamber for the harm it caused him through its illegal campaign

expenditures and related unlawful activities.

Then, seventeen months after the case was brought, the

Chamber tardily removed the case to federal court on diversity of

citizenship grounds. Although respondent was prepared to move

to remand, the district court immediately stayed all proceedings

(including ary motions to remand), pending the outcome of the

petition for certiorari and the proceedings in the Fifth Circuit

described in the petition and discussed below.

Throughout this case and the related ones, the Chamber

has contended that it had not violated Mississippi law because it

had not engaged in express advocacy as a matter of Mississippi law

and because, in any event, the First Amendment permits it to spend

money for the kind of advertisements that it was making, even if

state law prohibits it. The petition is quite adamant in disclaiming

any desire to have those issues resolved in this case because they

are the subject of the Chamber’s own lawsuit in federal court.

Indeed, it has prevailed before a panel of the Fifth Circuit, and the

petition for rehearing by the Mississippi Attorney General and

others has been denied, but is on appeal to this Court by a petition

for writ of certiorari. As the parties have recognized in agreeing to

a stay of the removed claim in this case, the outcome of the

Chamber’s federal case will profoundly impact the remaining

claim for damages.

But the Chamber’s federal case is also important to this

case because since it prevailed in the Fifth Circuit, and if it prevails

in this Court, under either state or federal law, it will no longer

have any need to fear any state court injunctions of the kind that

were issued here, from respondent or from anyone else.

REASONS FOR DENYING THE WRIT

1. There is no final judgment in this case as required

by 28 U.S.C. § 1257 and decisions of this Court such as Jefferson

v. City of Tarrant, Alabama, 522 U.S. 75, 81 (1997). Although

the issue of the TRO is no longer in the case, the case is not over

because the Mississippi Supreme Court ordered a remand. Then,

on remand, respondent moved to amend his complaint, and the

Chancery Court permitted him to do so. Petitioner then removed

the amended complaint to the federal court, relying on the same

diversity of citizenship grounds that have always existed (assuming

the Chamber does not claim that the value of the original

controversy over its massive television advertisement campaign

was less than $75,000).' Because there is a stay entered by the

district court, respondent has not filed a motion to remand, but

even if that motion should be denied, the case would still be

pending in federal court. Whether a certiorari petition from a

federal district court to this Court might have any basis in any case

(and none has been filed in this one), there would be no

extraordinary reason for this Court to accept an interlocutory

review from a district court where there is no injunction pending

and none ever likely to be granted in this case.

2. Even if there were a final tite, the claim for

injunctive relief in this case is clearly moot as between these

parties. As noted above, it is highly unlikely that respondent will

seek election as a Justice of the Mississippi Supreme Court again,

' See “Debate Over Tort Reform Ongoing”, The Clarion-Ledger, June 19,

2001, pp la, 4a (reporting that Chamber spent $958,000 on Mississippi

Supreme Court elections).

given his age and his status as a sitting judge. He is currently

running unopposed for Circuit Court judge, and there is no claim

by the Chamber that it will make any expenditures against him in

that race that might conceivably cause him to seek injunctive relief

of the kind that he sought here. Therefore, he has no current stake

in the debate over the legality of the TRO, and hence there is no

Article III case or controversy over it. Any claim by the Chamber

that it will suffer future harm is “wholly conjectural.” Golden v.

Zwickler, 394 U.S. 103, 109 (1969). See also, Oil Workers Unions

v. Missouri, 361 U.S. 363, 368-369, 371 (1960) (where an

allegedly unconstitutional injunction against a labor strike had

expired by its own terms, the caine was moot despite the possibility

of future injunctions against the labor unions that were involved).

As a practical matter, there is “no reasonable expectation that the

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

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

certainly not at the hands of the appellee here. Cf Norman v.

Reed, 502 U.S. 279, 288 (1992) (case not moot because “[t]here

would be every reason to expect the same parties to generate a

similar, future controversy”).

There is another reason why, even if the Chamber

expected to run similar ads against some other judicial candidate in

the future, there is no reasonable likelihood that a case remotely

similar to this one would arise. The principal substantive issue on

which the parties differed in all four TRO cases is whether, as a

matter first of state law and then of First Amendment law,

Mississippi could forbid the Chamber from running the kind of ads

that it ran in connection with the 2000 elections for Justices of the

Mississippi Supreme Court. Those issues are now before this

Court by Mississippi's appeal of the Fifth Circuit’s denial of the

petition for rehearing en banc, and perhaps this Court will resolve

them in a way that everyone will know whether the Chamber can

or can not run similar ads in the future. As it stands currently, the

Fifth Circuit has found in favor of the Chamber. But whatever

the answer, everyone will comply with the law, and there will be

no similar lawsuit to this one, further underscoring why this case is

moot. |

3. Respondent does not disagree that the standard for

enjoining political speech places a very heavy burden on the party

seeking the injunction because of this Court’s prior restraint

rulings. Respondent also recognizes that expenditures related to

10

elections are entitled to First Amendment protection, consistent

with this Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976),

and the cases that have followed it. But that does not neuter every

court from the power to enjoin the expenditure of money for

election related purposes, simply because the party seeking to

make the expenditure claimed First Amendment status for it.

For example, suppose in this case the Chamber (or a non-

U.S. corporation) had sought to run ads that clearly constituted

express advocacy, either because it did not fear criminal

prosecution or was willing to pay the fine a~ a cost of obtaining a

Mississippi Supreme Court to its liking. Assume further that under

state law, once an election is concluded, the courts would have no

power to overturn it, even where the claim was that massive illegal

expenditures resulted in a very close victory for one candidate over

another. A candidate seeking an injunction in such a situation

would bear a heavy burden, but there is no decision of this Court

that would clearly and absolutely foreclose the possibility of such

relief, and indeed even the petition recognized (18-19) that the law

against prior restraints is not absolute.

Yet the petition asks this Court to rule on the scope of the

prior restraint doctrine in a context totally devoid of facts (because

11

the case came up on a TRO) and in which the key legal issues

noted above are currently unresolved, but will be resolved in the

near future. Thus, as presented, the prior restraint question in the

petition is wholly abstract and hypothetical, as the phrasing of

petitioner’s own first question confirms. Even apar from the lack

of finality and mootness, the prior restraint question posed by

petitioner lacks the concreteness that should exist before the Court

undertakes to decide such an important constitutional issue.

Moreover, the facts of this case — which is the third of four similar

ones in which TROs were granted and then stayed by this Court —

are surely sufficiently unique as to make this a particularly poor

vehicle for sorting out the complex legal issues in this area.’

4. The petition presents a second question — whether the

Mississippi Supreme Court’s decision that petitioner had waived

its right to appeal violates its constitutional rights does not provide

a basis for review either. In part, because of the unique procedural

posture of this case, in which the Chamber deliberately by-passed

? Even if the Court were to consider the propriety of the TRO here, it

might never reach the prior restraint issue because the TRO was issued

without notice to Chamber and hence may have violated due process. See

Carroll v. Princess Anne, 393 U.S. 175, 180 (1968) (reversing injunction

for lack of notice and declining to address the “thorny problem” of

whether it was justified under the facts).

12

the Mississippi Supreme Court in seeking a stay, the ruling below

may well be applicable only to the Chamber in this case, but not in

cases where it sought and was denied a stay in the Mississippi

Supreme Court. In that circumstance, the decision may well

constitute an adequate state ground for decision, and hence review

in this Court would not be proper.

In any event, the second question has no independent leg

on which to stand; it does not claim any legal right, but is offered

essentially as a response to an anticipated defense. Thus, if it had

any merit, it would do no more than remove a barrier to review by

this Court and would not be an independent reason to grant the

petition. Therefore, assuming that it too is not moot, it provides no

reason for this Court to grant review.

13

CONCLUSION

For all of the foregoing reasons, Respondents respectfully

request that this Honorable Court deny the Petition.

Respectfully submitted,

Thomas Tucker Buchanan

P.O. Box 4326

Laurel, Mississippi 39441-4326

(601) 649.8000

Attorney for Respondent,

Honorable Billy Joe Landrum