Opposition Brief — O'Hara v. Kovens

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No. 92-1154

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In The

Suprene Court of the United : tates |

o

October Term, 1992

JAMES FRANCIS O’HARA, ITI, et ai.,

Petitioners,

VS.

JACQUELINE KOVENS, PERSON REPRESENTATIVE OF

THE ESTATE OF IRVIN KOVENS, er al.,

Respondents.

On Petition for Writ of Certiorari to the Court of Special

Appeals of Maryland

RESPONDENTS’ BRIEF IN OPPOSITION

MICHAEL SCHATZOW HARLEY THOMAS HOWELL

VENABLE, BAETJER & HOWARD Counsel of Record

1800 Mercantile Building WILLIAM F. GATELY

Two Hopkins Plaza HOWELL, GATELY, WHITNEY

Baltimore, Maryland 2120! & CARTER

(410) 244-7400 Suite 502

401 Washington Avenue

JOSEPH M. MCMANUS Towson, Maryland 21204

CHARLES H. FLEISCHER (410) 583-8000

CLIFTON M. MOUNT

ROSS, MARSH, FOSTER, M. ALBERT FIGINSKI

MYERS & QUIGGLE STUART R. BERGER

888 16th Street, N.W. WEINBERG & GREEN, P.A.

Washington, DC 20008 100 South Charles Street

(202) 822-8888 Baltimore, Maryland 21201

(410) 332-8634

Attorneys for Respondents

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rVvices, Inc.

QUESTION PRESENTED

Whether the Court of Special Appeals of Maryland was correct

in holding that the separation of powers doctrine embodied in

_ Article 8, Maryland Declaration of Rights, forbids judicial inquiry

into a former Maryland governor’s motives for his veto of proposed

legislation.

ii

LIST OF PARTIES

Petitioners:

James Francis O’ Hara, III

Michael Patrick O’ Hara

Respondents*

Jacqueline Kovens, Personal Representative

of the Estate of Irvin Kovens

W. Dale Hess

_—_————— eS )3=— 6 <ees ee 06 EEF Ale@e cdeceteen 7

Harry W. Rodgers, III

William A. Rodgers

Ernest N. Cory, Jr.

The Eugene B. Casey Trust

* The Petition incorrectly lists Irving T. Schwartz as a Respondent. (Petition, at

ii). In fact, Petitioners voluntarily dismissed with prejudice their claims against Mr.

Schwartz in 1990, prior to entry of final judgment by the Circuit Court for Baltimore

City.

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iii

TABLE OF CONTENTS

Page

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Listof Parties ........ ee eee li

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Reasons for Denying the Writ .............eseeeees 5

I. The decision below was based upon an adequate

and independent state ground. ................ 5

II. The petition does not present a question of federal

law that was properly raised or that is subject to this

EE, dine bs G40 0nscencd bebaveense 8

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TABLE OF CITATIONS

Cases Cited:

Baker v. Carr, 369 U.S. 186(19G2) ... 2. .cccccccsccces 9

Cosgrove v. Green, 328 U.S. 549 (1946) .............. 9

iv

Contents

Department of National Resources v. Linchester Sand and

Gravel Corp., 274 Md. 211,334A.2d514(1975) ....

Dreyer v. Illinois, 187 U.S.71(1902) ................

Edwards v. United States, 288 U.S. 482 (1932) .........

Federated Department Stores, Inc. v. Le, 324 Md. 71, 595

gg FEET TVET TT COE TEE T TTT CTT Ee

Fletcher v. Peck, 6 Cranch 87 (1810) .................

Herb v. Pitcairn, 324 U.S. 117(1945) ................

Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608 (1937)

*“eeeveeeeeeeeeeeveeeeeeeeeeeeeeeeeeeeeeeeeeeeee

Mandel v. O’ Hara, 320 Md. 103,576A.2d 766(1990) ...

Marbury v. Madison, 5 Cranch 137(1803) ............

Mayor of Philadelphia v. Educational Quality League, 415

ee ee ree ne re

O’Hara v. Kovens, 305 Md. 280, 503 A.2d 1313 (1986) ..

Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118

(RDS Kh05vcnduveeys 65<4sens cere centewsee es

Prentis v. Atlantic Coast Line, 211 U.S.210(1908) ......

Page

2,3

a |

Vv

Contents

Page

Risser v. Thompson, 930 F.2d 549 (7th Cir. 1991) ....--. 7,9

Smiley v. Holm, 285 U.S. 355(1932) ....c eee eeeeees 2

State of Ohio ex rel. Bryant v. Akron Metropolitan Park

Dist., 281 U.S. 74(1930) ....--seeereeeeerrreree® 9

Three Garden Village Ltd. Partnership v. United States |

Fidelity & Guar. Co, 318 Md. 98, 567 A.2d 85 (1989) ,

Whalen v. United States, 445 U.S. 684(1980) .....----- 7

Constitutional Provisions Cited:

Constitution of the United States Art. IV, §4 ....----02- 8,9

Constitution of Maryland Declaration of Rights, Art. 8

2 Leper he eae wee Naas +e NRE Re NE i, 4,5, 6,7

Maryland Const. Art. II OIF cevcvescceseseuavenvess 2

Statute Cited:

United States Code Title 28 § 1257 ...----++eeerrrree 2

Rules Cited:

Supreme Court Rule 14.1(h) ...-e eee cece eee e reece 2

Supreme Court Rule 14. 1(k)(ii) . 6... eee ee eee eer eens 3

l

No. 92-1154

InThe

Supreme Court of the United States

a

October Term, 1992

JAMES FRANCIS O’HARA, III, et al.,

Petitioners,

VS.

JACQUELINE KOVENS, PERSONAL REPRESENTATIVE OF

THE ESTATE OF IRVIN KOVENS, et al.,

Respondents.

On Petition for Writ of Certiorari to the Court of Special Appeals

of Maryland

RESPONDENTS’ BRIEF IN OPPOSITION

All Respondents join in this Brief in Opposition. For reasons

stated, the Petition for Writ of Certiorari should be denied.

STATEMENT OF JURISDICTION

On May 8, 1992, the Court of Special Appeals entered

judgment affirming the entry of summary judgment against

Petitioners by the Circuit Court for Baltimore City. Petitioners

filed in the Court of Appeals of Maryland a petition for writ of

certiorari, but that petition was denied on October 7, 1992 (A.45a).

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Jurisdiction is invoked pursuant to 28 U.S.C. § 1257.

However, the Petition does not present any federal question that

was timely and properly raised in the Maryland courts so as to give

this Court jurisdiction.

~STATEMENT OF THE CASE

Although the Petition seeks review of the judgment of a state

court, its statement of the case does not even purport to specify the

stage in the proceedings below at which the federal question

sought to be reviewed was raised. Indeed, Petitioners faii to

provide any explanation or record citations “as will show that the

federal question was timely and properly raised so as to give this

Court jurisdiction to review the judgment on a writ or certiorari.”

Rule 14.1(h). Noncompliance with this Court’s rule, while

inexcusable, is understandable. Petitioners never raised in the

courts of Maryland any federal question which might be

reviewable by this Court.

This civil action alleg*xg . »mmon law fraud has been pending

since November 22, 1°78. wuen Petitioners filed it in the Circuit

Court for Baltimore City. The allegations have been twice explored

by the Court of Appeals of Maryiand. According to that court, the

fraud claim challenged the motives of Marvin Mandel, while

governor of the State of Maryland, for his 1971 veto of a bill passed

by the Maryland legislature. O’Hara v. Kovens, 305 Md. 280, 302,

503 A.2d 1313, 1324 (1986).' The complaint was interpreted as an

1. In Maryland, the power to veto or approve legislation is vested

exclusively in the governor. Md. Const. Art. I, § 17. See Mandel v. O’Hara, 320

Md. 103, 121, 576 A.2d 766, 775 (1990). Under the Maryland Constitution, as

construed, Governor Mandel’s exercise of the veto power was a legislative

function. Jd., 320 Md.at 121-125, 576 A.2d at 775-77. Accord: Edwards v.

United States, 288 U.S. 482, 490 (1932); Smiley v. Holm, 285 U.S. 355, 370

(1932).

3

attempt by Petitioners “to make the state of mind of Governor

Mandel prior to the veto critical to the claim.” Id. See Mandel v.

O’Hara, 320 Md. 103, 128, 576. A.2d 766, 778 (1990).

On March 14, 1991, in light of these authoritative

pronouncements, Respondents filed a motion to dismiss or for

summary judgment. The motion raised several issues, including

the following question of Maryland constitutional law:

(1) As a matter of law, the common law fraud

claim was legally insufficient because it

necessarily requires judicial inquiry into

motives for a valid legislative act, which

inquiry is forbidden by the separation of

powers doctrine embodied by Article 8 of the

Maryland Declaration of Rights.

(A.15a). See Petition, at 15-16. No question of federal law was

raised.

On April 1, 1991, the Circuit Court entered a final order

granting the motion for summary judgment. in its order,” the

Circuit Court explained its decision as resting upon the separation

of powers doctrine invoked by Respondents. The Circuit Court

concluded that the doctrine prevented Maryland courts from

passing judgment on Governor Mandel’s motives for exercising

the veto power, a material fact in issue (A. 16a-17a).

On appeal, Petitioners presented a single question for review:

(1) Did the Circuit Court err in granting the

2. Contrary to Rule 14.i(k)(ii), the Appendix to the Petition does not

contain the Circuit Court’s order of April }, 1991. However, a portion of that

order was quoted in the opinion of the Court of Special Appeals (A. 16a-17a).

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defendants’ motion for summary judgment on

the ground that the separation of powers

principle precluded further pursuit of this

action against the defendants other than former

Governor Mandel on the basis of the fraud

alleged in the declaration?

(A.17a). On May 8, 1992, the Court of Special Appeals of

Maryland resolved that question under Article 8 of the Maryland

. Declaration of Rights (A.28a-3 1a). Its opinion concluded:

... [T]he separation of powers doctrine bars

judicial inquiry into a governor’s motives for

his veto. Since this action is dependent upon

such a judicial inquiry, the grant of summary

judgment was proper.

(A.44A-45a).

On June 22, 1992, Petitioner filed in the Court of Appeals of

Maryland a timely petition for a writ of certiorari. The only

question presented in that petition was framed exclusively in terms

of state constitutional law:

Did the Court of Special Appeals err in

affirming the trial court’s grant of summary

judgment in favor of the respondents, on the

grounds that State Constitutional separation of

powers principles embodied in Article 8 of the

Maryland Declaration of Rights would prevent

any inquiry into or testimony concerning the

motives underlying then-Governor Mandel’s

veto of pertinent racetrack legislation and a

trial before a jury in the above-captioned case?

i

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On October 7, 1992, the Court of Appeals denied that petition “as

there has been no showing that review by certiorari is desirable and

in the public interest” (A.46a-47a).

REASONS FOR DENYING THE WRIT

I.

THE DECISION BELOW WAS BASED UPON AN

ADEQUATEAND INDEPENDENT STATE GROUND.

The decision below was based exclusively upon Article 8 of

the Maryland Declaration of Rights, as construed by the courts of

Maryland in light of Maryland precedents. Reliance upon a state

constitutional provision is a classic example of an adequate and

independent state ground for decision:

This Court from the time of its foundation has

adhered to the principle that it will not review

judgments of State courts that rest on adequate

and independent State grounds. . . . The reason

is so obvious that it has rarely been thought to

warrant statement. It is found in the

partitioning of power between the state and

federal judicial systems and in the limitations

of our own jurisdiction. Our only power over

state judgments is to correct them to the extent

that they incorrectly adjudge federal rights.

And our power is to correct wrong judgments,

not to review opinions... .

Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945).

Here there can be no doubt that the decision below was based

upon an adequate state ground. In moving for summary judgment,

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Respondents explicitly invoked “the separation of powers doctrine

embodied in Article 8 of the Maryiand Declaration of Rights”

(A.15a). Summary judgment was granted solely on that ground.

Affirming, the Court of Special Appeals likewise identified Article

8 and prior Maryland decisions thereunder as the basis for its

separation of powers decision (A.28a-37a, 36a-37a). Indeed, as a

matter of state procedure, a Maryland appellate court ordinarily

will “review a grant of summary judgment only on the grounds

relied upon by the trial court.” Federated Department Stores. Inc.

v. Le, 324 Md. 71, 79, 595 A.2d 1067, 1071 (1991). See, e.g., Three

Garden Village Ltd. Partnership v. United States Fidelity & Guar.

Co., 318 Md. 98, 107-08, 567 A.2d 85, 89 (1989).

Moreover, Petitioners frankly conceded below that the

decision of the Court of Special Appeals rested upon state

Constitutional separation of powers principles embodied in Article

8 of the Maryland Declaration of Rights. They so stated in their

petition for writ of certiorari, as filed in the Court of Appeals of

Maryland. It is rather late in the day for Petitioners to switch tactics

and argue that the decision under the State Constitution should be

viewed instead as resolving a question of federal law. Such an

argument is baseless in any event.

Article 8 of the Maryland Declaration of Rights certainly

provided an independent state ground. Since 1776, the

Constitution of Maryland has always contained an explicit

provision for separation of powers. That “doctrine has long been a

cornerstone of this State’s concept of government and finds

forthright expression in Article 8 ...” Department of National

Resources v. Linchester Sand and Gravel Corp., 274 Md. 211,218,

334 A.2d 514, 520 (1975). Article 8 provides:

That the Legislative, Executive, and Judicial

powers of Government ought to be forever

separate and distinct from each other; and no

7

person exercising the functions of one of said

Departments shall assume or discharge the

duties of any other.

The decision below held under Article 8 “that the separation of

powers doctrine bars judicial inquiry into a governor’s motives for

his veto.” (A.44a). This determination, at most, merely adjusted

the balance of power between the judicial and the executive

branches of Maryland government. That decision did not arguably

affect the separation of powers doctrine at the national level.

The interpretation of Article 8 of the Maryland Declaration of

Rights is committed to the courts of Maryland. That interpretation

is not subject to oversight by this Court. The Constitution of the

United States does not require the States to apply the separation of

powers doctrine in any particular manner. Dreyer v. Illinois, 187

U.S. 71, 83-84 (1902); Prentis v. Atlantic Coast Line, 211 U.S. 210,

225 (1908); Mayor of Philadelphia v. Educational Quality

League, 415 U.S. 605, 615 and n. 13 (1974); Whalen v. United

States, 445 U.S. 684, 689 n. 4 (1980).

The allocation of governmental powers in Maryland certainly

gives rise to no federal question: “Whether the legislative,

executive, and judicial powers of a State shall be kept altogether

distinct and separate, or whether persons belonging to one

department, may, in regard to some matters, exert powers which,

strictly speaking, pertain to another department of government is

for the determination of the State.” Dreyer v. Illinois, supra, 187

U.S. at 84. See Risser v. Thompson, 930 F.2d 549, 551-52 (7th Cir.

1991) (per Posner, J.; governor’s exercise of veto power is not

subject to federal judicial review).

Article 8 of the Maryland Declaration of Rights — not federal

law — was the basis of the decision below. The application of the

doctrine embodied in Article 8 was exclusively for the

8

determination of the Maryland courts. It was _ resolved,

appropriately enough, in favor of judicial restraint and was

supported by ample Maryland precedents. That separation of

powers decision is not reviewable in this Court.

Il.

THE PETITION DOES NOT PRESENT A QUESTION

OF FEDERAL LAW THAT WAS PROPERLY RAISED OR

THAT IS SUBJECT TO THIS COURT’S REVIEW.

Petitioners are not aided by their belated and awkward effort

in this Court to fashion a federal question out of the separation of

powers doctrine. For the first time they contend here that the court

below “proceeded to employ that doctrine in a manner that is a

perversion of its role as an inherent and integral element of the

republican form of government expressly guaranteed by the U.S.

Const. Art. IV, § 4.” (Petition at 17-18).

In truth, the Court of Special Appeals held only that the

separation of powers doctrine bars judicial inquiry by courts and

juries into a former governor’s motives for his constitutional

exercise of the veto power (A.2a, 44a). That holding was

reasonable and, and, at minimum, does not conflict with any prior

decision of this Court.’ It hardly converts the Maryland executive

into a monarch. The petition fails to explain why the holding

should be vilified as a “perversion” of the republican form of

3. Among the precedents discussed in the opinion below were two

cornerstones of judicial review in a republican form of government, Marbury v.

Madison, 5 Cranch 137 (1803), and Fletcher v. Peck, 6 Cranch 87 (1810) (A.35a-

36a, 43a-44a).

9

government guaranteed by the Constitution.‘ In any event, the

contention is unsupported by authority and may be dismissed as

frivolous.

Two other deficiencies are dispositive. First, the Guarantee

Clause was not briefed or argued in the trial court or the appellate

courts of Maryland. Accordingly, the question sought to be raised

in this Court was never considered or decided below. Second, as

settled by decisions of this Court, questions arising under the

Guarantee Clause are not justiciable, being reserved for the

consideration of Congress and not the courts. Baker v. Carr, 369

U.S. 186, 228 (1962); Cosgrove v. Green, 328 U.S. 549, 556 (1946)

(plurality opinion); Highland Farms Dairy Inc. v. Agnew, 300 U.S.

608, 612 (1937); State of Ohio ex rel. Bryant v. Akron Metropolitan

Park Dist., 281 U.S. 74 (1930); Pacific States Tel. & Tel. Co. v.

Oregon, 223 U.S. 118, 149-51 (1912). See Risser v. Thompson, 930

F.2d 549, 552 (7th Cir. 1991) (per Posner, J.; Wisconsin

constitutional provision for “line-item veto” not justiciable under

Guarantee Clause). This case does not warrant a departure from

this longstanding rule.

CONCLUSION

The federal question sought to be presented to this Court was

never raised in the proceedings below and is utterly lacking in

merit. The decision below rests upon an adequate and independent

state ground. Accordingly, the Petition for Writ of Certiorari

should be denied.

4. "Section 4. The United States shall guarantee to every State in the

Union a Republican Form of Government, and shall protect each of them against

Invasion; and on Application of the Legislature, or the Executive (when the

Legislature cannot be convened), against domestic Violence.” Constitution of

the United States, Art. IV, § 4.

February 4, 1993

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Respectfully submitted,

HARLEY THOMAS HOWELL

Counsel of Record

WILLIAM F. GATELY

HOWELL, GATELY, WHITNEY

& CARTER

Suite 502

401 WashingtonAvenue_ -

Towson, Maryland 21204

(410) 583-8000

M. ALBERT FIGINSKI

STUART R. BERGER

WEINBERG & GREEN, P.A.

100 South Charles Street

Baltimore, Maryland 21201

(410) 332-8634

MICHAEL SCHATZOW

VENABLE, BAETJER &

HOWARD

1800 Mercantile Building

Two Hopkins Plaza

Baltimore, Maryland 21201

(410) 244-7400

JOSEPH M. MCMANUS

CHARLES H. FLEISCHER

CLIFTON M. MOUNT —

ROSS, MARSH, FOSTER,

MYERS & QUIGGLE

888 16th Street, N.W.

Washington, DC 20008

(202) 822-8888

Attorneys for Respondents