# Opposition Brief — Rogers v. Taft

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1497%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 1028

## Text

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

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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

2.

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

7.

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
Registration No. 0011751
Mahoning County Courthouse
120 Market Street
Youngstown, Ohio 44503
Telephone: (216) 740-2330

Counsel of Record

for Respondent
Mahoning County Board
of Elections

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1497%3A2. Public record. Not legal advice.