Opposition Brief — Rogers v. Taft

Supreme Court brief1992

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92-AR&

No.

pe wn |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

STATE OF OHIO, on relation of Darlene Rogers,

Petitioner,

vs.

ROBERT A. TAFT, Ohio Secretary of State, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Ohio

Brief in Opposition for Respondent

SHARON K. HACKETT

Assistant Prosecuting Attorney

Registration No. 0011751

Mahoning County Courthouse

120 Market Street

Youngstown, Ohio 44503

Telephone: (216) 740-2330

Attorney for Respondent

Mahoning County Board

of Elections

BEST AVAILABLE COPY P

*Q FS

—seeay,

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

QUESTION PRESENTED FOR REVIEW

Whether this Court has jurisdiction to-

grant a writ of certiorari where: (1) the

decision below rests upon an adequate and

independent state ground; (2) the facts

below will not support a determination by

this Court of the question presented by

the Petitioner; and (3) the petition has

not been timely filed.

“ane

TABLE OF CONTENTS

PAGE:

QUESTION PRESENTED FOR REVIEW...... i

SABRE GCE CONT BME Os cece veces esescrene ii

TAD OCF AUTOR EEOOs ccc cesescceags iii

STATEMENT OF THE CASE... ccccccvesess 1

WHY WRIT SHOULD BE DENIED.......... S

POINT I:

THIS COURT HAS NO JURISDICTION TO GRANT A

WRIT OF CERTIORARI WHERE THE DECISION BELOW

RESTS UPON AN ADEQUATE AND INDEPENDENT

STATE GROUND.

POINT II:

THIS COURT SHOULD NOT GRANT A WRIT OF

CERTIORARI WHERE THE FACTS BELOW WILL NOT

SUPPORT A DETERMINATION BY THIS COURT OF

THE QUESTION PRESENTED BY PETITIONER.

POINT III:

THIS COURT DOES NOT HAVE JURISDICTION TO

GRANT CERTIORARI WHERE THE PETITION HAS NOT

BEEN TIMELY FILED.

CONCLUSION... cccccccccccccccscccscces 11

ii.

TABLE OF AUTHORITIES

CASES: PAGE(S) :

Dept. of Banking, State of Nebraska

ae We, MY Us SOS CLEA D acs e 10

Fox Film Corp. v. Muller, 296 U.S.

SERS Rare 3

Michigan v. Long, 463 U.S. 1032

(; )} ) 4

Missouri v. Jenkins, 495 U.S. 33

kt kk a ek 8 ee 9

Ridgway v. Ridgway, 454 U.S. 46

‘.) >} See 4

Scofield v. Labor Board, 394 U.S.

EA a 9

United States v. Hark, 320 U.S.

es ae ke ee eee tte S

Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S. 562

ST che Obs bee bh Ee coke eee ee es 4..-

- iii.

STATEMENT OF THE CASE

Prior to February 20, 1992, Petitioner was

furnished with declaration of candidacy forms by

the Mahoning County Board of Elections. At that

time, Petitioner was informed that the filing

deadline for declarations of candidacy for

nomination as a candidate of the Democratic

Party for election to the office of State

Representative from the 64th House District was

February 20, 1992.

On May 8, 1992, Petitioner attempted to

file with the Board of Elections a declaration

of candidacy for election to the office of State

Representative from the 64th House District.

See Appendix to Petition for cCertiorari,

hereinafter referred to as ee at A.1.

Because the deadline for the filing of

declarations of candidacy for the 64th House

District was February 20, 1992, the Board of

Elections did not accept the petitions for

filing. Instead, the petitions were accepted

only for the purpose of establishing that

Petitioner had attempted to file them on May 8,

1992. See A.1.

Upon the receipt of the petitions for the

limited purpose noted above, the Board of

Elections checked the signatures on the

petitions for sufficiency as required by Ohio

law. Of the sixty signatures found on the

petitions, the Board of Elections determined

that, under Ohio law, only forty-six of: the

signatures were valid. Because the petitions

had been untimely filed and because the

petitions contained only forty-six valid

signatures, when Ohio law required fifty valid

signatures, the petitions were disallowed by the

Board of Elections. See A.2.

On May 18, 1992, Petitioner filed an

original action in mandamus in the Supreme Court

of Ohio. The action set forth three claims.

The first alleged that the Defendants had a

clear duty to accept the declaration of

candidacy because the filing deadline for the

64th House District had been implicitly extended

by the U.S. District Court for the Northern

District of Ohio in the case of Quilter v.

Voinovich, U.S. District Court Case No. 91 CV

2219 (May 5, 1992). See A.2.

Petitioner's second claim for relief

alleged that the Board of Elections had

improperly invalidated fourteen of the

signatures on the petitions in violation of

provisions of Ohio law. See A.2.

Finally, ain Petitioner's third claim for

relief, she alleged that she was a member of the

class in Armour v. Ohio, 775 F. Supp. 1044 (N.D.

Ohio 1991) and that -the Supreme Court of Ohio

should order that majority-minority districts be

created for all at large elections for

multi-member offices in Mahoning County. See

A.2.

On June 2, 1992, the Ohio Supreme Court

entered an order denying the request for a writ

of mandamus, "consistent with the opinion to

follow." See A.54. The opinion was announced

June 19, 1992. See A.1.

WHY WRIT SHOULD BE DENIED

POINT I

THIS COURT HAS NO JURISDICTION TO GRANT A

WRIT OF CERTIORARI WHERE THE DECISION

BELOW RESTS UPON AN ADEQUATE AND

INDEPENDENT STATE GROUND.

Where a state court decision indicates

clearly that it is based on bona fide separate,

adequate and independent grounds, the United

States Supreme Court will not undertake to

review the decision. Michigan v. Long, 463 U.S.

1032, 1041 (1983). This Court has held that its

only power over state judgments is to correct

them to the extent that they incorrectly adjudge

federal rights. Ridgway v. Ridgway, 454 U.S.

46, 54 (1981). Where a state court rests its

decision on both state and federal grounds,

either of which are dispositive of the matter,

this Court has held that it has no jurisdiction.

zacchini v. Scripps-Howard Broadcasting Co., 433

U.S. 562, 568 (1977) (citing Fox Film Corp. v.

Muller, 296 U.S. 207 (1935)).

In the instant case, the decision of the

Ohio Supreme Court rests upon an adequate and

independent state ground: So: - Wis, that

Petitioner had failed to obtain the requisite

number of signatures required under Ohio law for

declarations of candidacy. In addition, even if

the Ohio Supreme Court had determined that, as a

matter of federal law, the filing deadline for

the 64th House District should have been

extended, the court would have nonetheless

denied the request for a writ of mandamus since

the requisite number of signatures had not been

obtained by Petitioner.

It is submitted that the decision below

rests upon an adequate and independent state

ground and, therefore, that this Court has no

jurisdiction grant a writ of certiorari in this

case.

POINT II

THIS COURT SHOULD NOT GRANT A WRIT OF

CERTIORARI WHERE THE FACTS BELOW WILL NOT

SUPPORT A DETERMINATION BY THIS COURT OF

THE QUESTION PRESENTED BY PETITIONER.

This Court should not grant a writ of

certiorari where the facts below will not

support a determination by this Court of the

question presented by Petitioner.

As set forth in the statement of the case,

Petitioner's complaint had alleged three claims

for relief, two of which were personal to her.

Her third claim for relief presented the issue

which Petitioner is now presenting to this Court

for review. However, the record below is devoid

of any evidence sufficient to support a

determination by this Court of the issue

presented.

A reading of the Ohio Supreme Court's

opinion indicates that only one paragraph was

devoted to this final claim for relief. See

A.6. In that paragraph, th2 Ohio Supreme Court

found that nothing under the Ohio Revised Code

required the county Board of Elections to act as

es 5

an apportionment agent. Id. The court further

found that Petitioner had adduced no evidence

that the state had violated the Fifteenth

Amendment to the U.S. Constitution or the Voting

Rights Act of 1965. Id.

Respondent points out that Petitioner had

the opportunity to litigate this issue before

the Ohio Supreme Court and could have presented

evidence in support of the claim. Yet, the

issue was not litigated and Respondent did not

have the opportunity to present evidence on the

matter. The matter is thus not ripe for review

at this time.

Finally, it should be noted that Respondent

has always taken the position that the issue

which Petitioner now presents for review was

never properly before the Ohio Supreme Court.

Petitioner had an adequate remedy at law by way

of a declaratory judgment action on the matter.

In fact, the issue was presented to the U.S.

District Court for the Northern District of Ohio

in the case of Armour v. Ohio, Case No.

C88-1104Y. Rather than prosecute an appeal from

the decision of the district court in that case,

Petitioner chose to dismiss the appeal and

present the matter directly to the Ohio Supreme

Court in connection with her action in mandamus.

It is submitted that Petitioner failed to

adequately and properly present this issue in

the lower courts. As such, this Court should

not now grant a writ of certiorari to review it.

aia |

POINT III

THE PETITION WAS NOT TIMELY FILED.

As set forth in the statement of the case,

the Ohio Supreme Court issued an order on June

2, 1992, denying Petitioner's request for a writ

of mandamus, consistent with "the opinion to

follow." The opinion was announced on June 19,

1992.

Under 28 U.S.C. Section 2101(c), a petition

for writ of certiorari in a civil case must be

filed within ninety days of the judgment upon

which the decision rests. It has been held by

this Court that this requirement is mandatory

and jurisdictional. Missouri v. Jenkins, 495

U.S. 33, 45 (1990). The critical act

constituting the entry of the judgment in the

lower courts is the notation of the judgment in

the docket by the court clerk. That is the date

to be used in calculating the time for

petitioning for certiorari. See Scofield v.

Labor Board, 394 U.S. 423, 427 (1969); United

States v. Hark, 320 U.S. 531, 534 (1944). A

judgment is final for purposes of review by this

Court when the record reveals that it leaves

nothing to be done by the lower court, that the

court has fully adjudicated rights and that that

adjudication is not subject to further review.

Dept. of Banking, State of Nebraska v. Pink, 317

U.S. 264 (1942).

It is submitted that all rights of

Petitioner were fully adjudicated on June 2,

1992 when the Ohio Supreme Court entered its

order denying Petitioner's request for a writ of

mandamus.

Thus, as the petition in this case was

filed more than ninety days from the entry of

the judgment in this case on June 2, 1992, it

was untimely filed and this Court must dismiss

the petition.

10.

CONCLUSION

This Court should deny the petition for a

writ of certiorari and the judgment below should

Respectfully submitted,

SHARON K. HACKETT

Assistant Prosecutor