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

SEP 3 WR

No. 01-1649

CLERK

In the

Supreme Court of the United States

CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA

Petitioner,

¥.

BILLY JOE LANDRUM,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

THOMAS TUCKER BUCHANAN

Counsel of Record

531 North 5" Avenue

P.O. Box 4326

Laurci, Mississippi 39441

Counsel for Respondent

BEST AVAILABLE COPY

TABLE OF CONTENTS

Table of Contents 1

Table of Cited Authorities il

Introduction

Statement of the Case 3

Reasons for Denying the Writ 8

Conclusion 16

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Buckley v. Valeo, 424 U.S. 1 (1976) 12

| Golden v. Zwickler, 394 U.S. 103, 109 (1969) 10

Jefferson v. City of Tarrant, Alabama, 8

522 U.S. 75, 81 (1997)

Norman v. Reed, 502 U.S. 279, 288 (1992) 11

Oil Workers Unions v. Missouri, 361 U.S. 363, 10

368-369, 371 (1960)

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) 11

Statutes:

28 U.S.C. § 1257 1,8

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 legal 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 sine 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 sence 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

inappropriate 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.

‘ici respondent will briefly summarize 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 running 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 1.ississippi

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 disscsived TRO

for a since completed election to the Mississippi Supreme

Court, which rejected the appeal because the Chamber chose

to by-pass the 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 heii 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 any motions to. remand),

ies

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

l. 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 onginal

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 judgment, the claim for

injunctive relief in this case is clearly moot as between these

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

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

2001, pp 1a, 4a (reporting that Chamber spent $958,000 on Mississippi

Supreme Court elections).

10

will seek election as a Justice of the Mississippi Supreme

Court again, given his age and his status as a sitting judge.

He is currently running unopposed for Circuit Court judge,

and thee 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 t its own terms, the case 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.

1]

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

12

a

Chamber can or can not run simular 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 elections are entitled to First

Amendment protection, consistent th 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

ee

13

constituted express advocacy, either because it did not fear

criminal prosecution or was willing to pay the fine as 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 1s 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 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

ea

14

restraint question in the petition is wholly abstract and

hypothetical, as the phrasing of petitioner's own first

question confirms. Even apart 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 nght to appeal violates its constitutional nghts

does not provide a basis for review either. In part, because of

? 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).

|

the unique procedural posture of this case, in which the

Chamber deliberately by-passed 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 Mississipp1

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 nght, but 1s

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.

16

CONCLUSION

For all of the foregomg 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