# Opposition Brief — O'Hara v. Kovens

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1931%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 920

## Text

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No. 92-1154

| Fe:
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

3228

angela : (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21
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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
i 6 cake echoes eebeetsenseveusse’ i
Listof Parties ........ ee eee li
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PE PFOUTTTULTTTTTTTE LCCC TEAL T Te lii
UE SUEUIEEOD coc ccccccnccecasesscssens l
EE ca caneacecdscesececncenccese 2
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
EEE cia AG aG be S056 5.0 ce Wane ectencadnceesese 9
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).

~ 2

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).

4

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

5

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,

6

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

10
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1931%3A2. Public record. Not legal advice.