Opposition Brief — Duke v. Smith

Supreine Court, U.S.

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CASE NO. 94-21 a oes |

IN THE

Supreme Court of the Hnited States

October Term, 1994

DAVID DUKE, et al.

Petitioners,

vs.

JIM SMITH,

Secretary of the State of Florida, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ROBERT A. BUTTERWORTH

Attorney General

GEORGE L. WAAS

Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

PL-01 The Capitol

Tallahassee, FL 32399-1050

(904) 488-1573

ATTORNEY FOR RESPONDENTS

SMITH, WETHERELL, AND MARGOLIS

REST AVAILABLE COPY

EDITOR'S NOTE

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QUESTION PRESENTED

Does Farrar v. Hobby, 113 S.Ct. 566 (1992),

entitle petitioners to an award of attorneys’ fees as

prevailing parties under 42 U.S.C. § 1988 where,

under a presidential preference primary ballot

access statutory scheme involving an initial con-

sideration process and a separate reconsideration

procedure, a court of appeals invalidates only the

latter, leaving intact the First Amendment rights

of political parties to determine initially who shall

be on their respective ballots, thereby precluding

any alteration of the litigants’ legal relationship,

requiring no modification of respondents’ behav-

ior, and imposing no obligation on respondents to

do anything to or for petitioners?

TABLE OF CONTENTS

QUESTION PRESENTED ................ i

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REASON FOR DENYING THE WRIT

The Eleventh Circuit Court Of Appeals’ Decision

Rejecting Petitioners’ Unsubstantiated Factual

Allegations and Denying Their Request for

Attorneys’ Fees, is Wholly Consistent With

Farrar v. Hobby, 113 S.Ct. 566 (1992) and Its

Predecessors. As a Result of the Appellate Court’s

Decision on the Merits Invalidating Only the

Presidential Preference Primary Ballot Access

Reconsideration Provision and Leaving Intact the

Initial Consideration Process, 13 F.3d 388 (11th

Cir. 1994), Respondents Are Not Required to Alter

the Legal Relationship Between the Parties, There

is no Modification Whatever Of Respondents’

Behavior In a Way that Directly Benefits

Petitioners, and Respondents Are Under No

Obligation to do Anything to Accommodate

Petitioners. Petitioners’ “Capable of Repetition,

Yet Evading Review” Argument Has no

Relevance Whatever to the Eleventh Circuit’s

Application of Farrar to the Facts Here.

Accordingly, the Eleventh Circuit’s Decision is in

Complete and Faithful Harmony With Farrar’s

Prevailing Party Standard .............. 4

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TABLE OF AUTHORITIES

Cases Page(s)

Duke v. Smith, 13 F.3d 388 (11th Cir. 1994) . . 1,4, 5,6, 8

Farrar v. Hobby, 113 S.Ct. 566 (1992) ....... passim

Hewett v. Helms, 482 U.S. 755 (1987) ........ 6, 11

Rhodes v. Stewart, 488 U.S. 1(1988)......... 6, 10

| Texas State Teachers Ass’n v. Garland Independent

| School District, 489 U.S. 782 (1989) ........ 6

| Other Authorities

| ee ee re 1,5

| $106.10) Gilapaemd(c) ... ww. cc ce ee ees passim

iii

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

This briefin opposition to the petition for writ of certiorari

establishes that petitioners, in their effort to demonstrate

entitlement to an award of attorneys’ fees as prevailing

parties under 42 U.S.C. § 1988, fundamentally misperceive

fact and law while raising a non-issue strawman in the

“capable of repetition, yet evading review” standard which

has no relevance to the Eleventh Circuit’s denial of attor-

neys’ fees.

Contrary to petitioners’ assertions and as clearly demon-

strated by a reading of the Eleventh Circuit’s attorneys’ fees

decision, Pet. App. A, pgs. la-4a, and the Court’s decision on

the merits, 13 F.3d 388 — .

1. Petitioners were not unconstitutionally denied

ballot access.

2. The Eleventh Circuit found no constitutional

impediment in the initial ballot access proce-

dure or decisions made under § 103.101(2Xa).

3. Petitioners could not have obtained injunctive

relief entitling them to ballot access.

4. Respondents do not need to alter their behav-

ior in any way as a result of the Eleventh

Circuit’s decision.

5. Respondents, or their successors, may again

exclude David Duke from the ballot in the

future in the same manner as before — through

the First Amendment-protected initial ballot

consideration process.

6. Farrar applies to declaratory and injunctive

actions, in addition to damages claims.

Section 103.101, Fla. Stat., provides for two ballot access

opportunities for presidential candidates to be placed on

Florida’s presidential preference primary ballot. Under sub-

section (2)(a)’s initial consideration procedure, each political

party submits to the Florida Secretary of State a list of its

presidential candidates for ballot placement. The Secretary

of State prepares, publishes, and submits a list of these

names to the Presidential Candidate Selection Committee.

Those names appear on the ballot unless all committee

members of the same political party as any listed candidate

agree to delete a candidate’s name from the ballot. In short,

the Republican committee members are responsible for the

Republican Party candidates, and the Democratic commit-

tee members are responsible for their party’s candidates.

By subsection (2Xc), a disappointed presidential candi-

date may request this same committee to reconsider placing

that person’s name on the ballot. Only this second ballot

access provision was addressed by the Eleventh Circuit;

after the district court denied petitioners’ declaratory and

injunctive relief as to both statutory procedures, petitioners

abandoned any claim as to the initial consideration proce-

dure (and committee decisions based thereon) end argued

only as to the reconsideration process.

The Eleventh Circuit’s attorneys’ fees denia) decision care-

fully follows this Court’s instructions in Farrar v. Hobby.

Thus, there is no decisional conflict, and there is no question

of first impression, as the “capable of repetition, yet evading

review” claim is of no relevance to, and has no bearing on,

that Court’s disposition of petitioners’ attorneys’ fees effort.

STATEMENT OF THE CASE

Petitioners sought to have their names placed on the 1992

Florida presidential preference primary ballot. They sub-

mitted their names to the Presidential Candidate Selection

Committee made up of respondents Jim Smith, Florida

Secretary of State; T.K. Wetherell, Speaker of the Florida

House of Representatives; and Gwen Margolis, President of

the Florida Senate, as well as House Minority Leader James

M. Lombard, Senate Minority Leader Ander Crenshaw, and

Florida Democratic Party Chairman Simon Ferro and Florida

Republican Party Chairman Van Poole. In accordance with

§ 103.101(2Xa), representatives of the two major political

parties gave lists of their respective candidates for ballot

placement to Secretary of State Smith. None of the peti-

tioner candidates was on either list submitted by the parties

to the Secretary of State.

Subsequently, disappointed candidates requested the

Secretary of State pursuant to subsection 2(c) to have their

names reconsidered for inclusion on the ballot by the com-

mittee, which reconsideration was rejected. Petitioners then

filed suit seeking a declaration that § 103.101 was unconsti-

tutional, and an injunction requiring the Secretary of State

to place their names on the 1992 Florida presidential pri-

mary party ballots. This relief was denied by the district

court. On appeal, petitioners voluntarily restructured their

case by limiting their constitutional challenge only to the

reconsideration provision. Pet. App. A, pg. 3a.

REASONS FOR DENYING THE WRIT

The Eleventh Circuit Court Of Appeals’ Decision

Rejecting Petitioners’ Unsubstantiated Factual

Allegations and Denying Their Request for

Attorneys’ Fees, is Wholly Consistent With

Farrar v. Hobby, 113 S.Ct. 566 (1992) and Its

Predecessors. As a Result of the Appellate Court’s

Decision on the Merits Invalidating Only the

Presidential Preference Primary Ballot Access

Reconsideration Provision and Leaving Intact the

Initial Consideration Process, 13 F.3d 388 (11th

Cir. 1994), Respondents Are Not Required to Alter

the Legal Relationship Between the Parties,

There is no Modification Whatever of

Respondents’ Behavior In a Way that Directly

Benefits Petitioners, and Respondents Are Under

No Obligation to do Anything to Accommodate

Petitioners. Petitioners’ “Capable of Repetition,

Yet Evading Review” Argument Has no Relevance

Whatever to the Eleventh Circuit’s Application of

Farrar to the Facts Here. Accordingly, the

Eleventh Circuit’s Decision is in Complete And

Faithful Harmony With Farrar’s Prevailing Party

Standard.

Petitioners’ claims of the existence of an “important un-

answered question” (Pet. pg. 7) and conflict between the

Eleventh Circuit’s attorneys’ fees decision and Farrar v.

Hobby, ring hollow in light of the facts of this case, the

particular ballot access law in question and the Eleventh

Circuit’s rejection of petitioners’ putative factual recitations

in faithfully adhering to Farrar’s principles. In fact, the

Eleventh Circuit noted that petitioners offered no substan-

tiation for their claims (see Pet. App. A, pg. 4a regarding

their unsupported claim that respondents must change

their behavior). Rather than attempt to justify their factual

allegations now raised for a second time by their petition,

petitioners continue to make the same unsubstantiated

representations rejected by the Eleventh Circuit. As demon-

strated by the Eleventh Circuit and the points set out

herein, there is neither an “important unanswered ques-

tion,” nor is there decisional conflict. This case involves only

the faithful application of the particularized facts and ballot

access law here to the prevailing party standard espoused

in Farrar.

At the outset, petitioners’ attempt to create an “important

unanswered question” by invoking the “capable of repeti-

tion, yet evading review” exception to mootness constitutes

nothing more than a strawman masking a simple, straight-

forward application of the principles espoused by this Court

in Farrar v. Hobby to the specific facts of the instant litiga-

tion. One searches in vain for any reference to, or intimation

of, the application of this exception in the Eleventh Circuit’s

decision. Indeed, there is no such discussion precisely be-

cause it has nothing to do with the Court’s application of

Farrar to the case sub judice.

As the Eleventh Circuit points out, petitioners sought a

declaratory judgment that § 103.101 was unconstitutional,

and an injunction requiring placement of their names on the

1992 Florida presidential primary ballot. The district court

denied that relief and, on appeal, petitioners argued only

that the reconsideration process was unconstitutional.

Duke v. Smith, 13 F.3d at 392. Thus, the Eleventh Circuit’s

holding of unconstitutionality affects only the reconsidera-

tion process and not the entire primary ballot system.

The sine qua non of prevailing party status supporting an

award of attorneys’ fees under 42 U.S.C. § 1988 is “relief (to

a plaintiff) on the merits of his claim (which) materially

alters the legal relationship between the parties by modifying

the defendant’s behavior in a way that directly benefits the

plaintiff.” Farrar, 113 S.Ct. at 573. (Emphasis added.)

Farrar’s holding is born of this Court’s analysis of Hewett v.

Helms, 482 U.S. 755 (1987); Rhodes v. Stewart, 488 U.S. 1

(1988); and Texas State Teachers Ass’n v. Garland Independent

School District, 489 U.S. 782 (1989). Farrar thus represents

a synthesizing of these earlier decisions. See 113 S.Ct. at

572. Under this distilled analysis, for petitioners to be

prevailing parties, they must show that, as reflected by the

Eleventh Circuit (Pet. App. A, pg. 3a), “‘[w]Jhatever reliefthe

plaintiff secures must directly benefit him at the time of the

judgment or settlement.’ 113 S.Ct. at 573.” Technical,

pyrrhic victories, or “the moral satisfaction (that) results

from any favorable statement of the law” cannot bestow

prevailing party status. 113 S.Ct. at 573-74.

In rejecting petitioners’ claims of entitlement to attorneys’

fees based solely on the invalidation of the only provision

before the Eleventh Circuit — the statutory reconsideration

process — the Court said:

Although we struck down the reconsideration

process, the appellant did not challenge the

method by which the list of primary candidates is

determined as an initial matter. In our opinion, we

suggested that the initial determination process,

embodied in Section 103.101(2Xa) was constitu-

tional because “the autonomous political parties’

First Amendment rights take their motivation for

exclusion (or inclusion) [of potential candidates]

outside the ambit of state action.” Duke, 13 F.3d at

391 n.3. It is through that initial determination

process, which the defendants did not challenge

and which we left intact, that the appellants were

excluded from the 1992 primary ballot, and

through which they can be excluded from any

future primary ballot. Indeed, as the appellees

point out, the appellants originally had two oppor-

tunities for ballot access—the initial selection

process and the reconsideration process; they have

“succeeded” in eliminating one of them, effectively

halving their number of opportunities for getting

on the Florida primary ballot. (Pet. App. A, pgs. 3a

and 3b.) (Emphasis added.)

Thus, petitioners’ status as it existed before the Eleventh

Circuit’s decision on the merits remains unchanged, as does

the status of the respondents. In short, petitioners remain

not entitled to ballot placement and respondents need to do

nothing further in that there is nothing further for them to

do. In sum, petitioners enjoy no further entitlement or

benefit than they had at the inception of the litigation, and

respondents are required to do nothing further in this cause;

their status is precisely what it was at the beginning of this

litigation. Petitioners do not get ballot access, a declaration

of entitlement to ballot access or damages. Respondents are

not required to pay damages, apologize, or do anything for

petitioners’ benefit.

Because petitioners are in no different posture now than

they were when they were initially denied ballot place-

ment, and respondents are in no different posture now

with respect to ballot placement than they were at the

beginning of the litigation, petitioners are not prevailing

parties because they received no direct benefit from the

Eleventh Circuit’s decision, and respondents are under no

obligation to modify their behavior as a result of the

appellate court’s action.

Nevertheless, in an effort to craft decisional conflict and an

issue of first impression, petitioners misperceive several facts.

First, contrary to petitioners’ assertion, candidates were

not unconstitutionally denied ballot access, and petitioner

Duke did not obtain a “finding that his exclusion from the

ballot violated the First Amendment.” (Pet. pg. 10). Only the

reconsideration process was at issue; the Eleventh Circuit

specifically determined that the initial ballot access deter-

minations, unchallenged and left intact, provided for exclu-

sion from the 1992 ballot, and may be relied on to exclude

these same candidates “from any future primary ballot.”

Pet. App. A, pg. 3b.

Second, petitioners erroneously maintain that the Eleventh

Circuit did not rule on the constitutionality of the initial

ballot access provision. In Duke v. Smith, 13 F.3d 388, 391,

fn.3 (11th Cir. 1994), the Court specifically said:

We will not consider the procedure that the respec-

tive political parties employed in determining

which candidates to submit under subsection

(2Xa) because at that stage of the process, the

autonomous political parties’ First Amendment

rights take their motivation for exclusion (or inclu-

sion) outside the ambit of state control. See, e.g.,_

Democratic Party v. Wisconsin, 450 US. 107, 123-

24, 101 S.Ct. 1010, 1019-20, 67 L.Ed.2d 82 (1981);

Kuspar v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct.

303, 307-08, 38 L.Ed.2d 260 (1973). (Emphasis

supplied.)

Indeed, in its attorneys’ fees decision, the Eleventh Circuit

reiterates its view as to the constitutionality of the initial

consideration process. Pet. App. A, pg. 3a. This clearly

demonstrates that the Court recognized that the initial

ballot access consideration process is a matter protected by

the political parties’ First Amendment rights.

Third, petitioners incorrectly aver that they could have

obtained an injunction placing candidates on the ballot.

Pet. pg. 10. This is not so; the Court specifically noted that

the initial consideration process remains intact, and

Te A eee

petitioners were legally precluded from ballot access based

on this provision. Pet. App. A, pg. 4a. Moreover, as the

Eleventh Circuit noted, “the appellants (petitioners) origi-

nally had two opportunities for ballot access — the initial

selection process and the reconsideration process; they have

’succeeded’ in eliminating one of them, effectively halving

their number of opportunities for getting on the Florida

primary ballot.” Pet. App. A, pg. 42. Hence, petitioners had

no injunctive remedy at any time.

Fourth, petitioners mistakenly represent that the respon-

dents must change their behavior as a result of the Eleventh

Circuit’s decision. That simply is not the case. While the

Eleventh Circuit reflected that “the appellants (petitioners)

could seek to hold the appellees (respondents) in contempt

were they to apply the reconsideration process...in the fu-

ture(,)” this is not the kind of behavioral change required by

Farrar in order for a plaintiff to be deemed a “prevailing

party” and thereby entitled to an award of attorneys’ fees.

Pet. App. A, pg. 3a. The Eleventh Circuit specifically rejected

petitioners’ “change of behavior” argument as follows:

The appellants argue that as a result of our ruling,

“t]he State will have to change its statute, or the

Defendants will have to give relief to all candi-

dates seeking reconsideration from Presidential

Preference Primary ballot exclusion.” Not so. The

appellants point to no case or constitutional prin-

ciple that obligates the Florida legislature to pro-

vide an appeals process for disgruntled |

presidential candidates. As a result of our holding,

there will be no means for disappointed candidates

to appeal their omission from the primary baliot,

unless and until the Florida legislature of its own

free will decides to enact a new reconsideration

mechanism. Nothing in the decision which the

appellants obtained from this Court obliges Florida

deena oti

to adopt a new reconsideration procedure of any

type in place of the unconstitutional procedure

that we struck down. (Pet. App. A, pg: 4a.) (Em- |

phasis added.)

Against this backdrop, petitioners’ criticism of the “Eleventh

Circuit’s speculation about hew the state may choose to

correct its deficient procedures” (Pet. pg. 13) exemplifies

sophistry and rings @ hollow note. There is absolutely no

basis for petitioners’ change-of-behavior claim here.

Fifth, petitioner Duke’s cavalier statement that he “may

not again” be excluded from the ballot is flatly contradicted

by the Eleventh Circuit’s leaving ‘atact the political parties’

First Amendment right to choose its candidates through the

initial ballot placement process as described above.

And sixth, petitioners are in error when they intimate

Farrar is limited to damages claims only. As this Court

specifically said in Farrar, discussing the definition of pre-

vailing party and citing to Rhodes v. Stewart, supra,

We reaffirmed that a judgment — declaratory or

otherwise — “will constitute relief, for purposes of

1988, if, and only if, it affects the behavior of the

defendant toward the plaintiff.

113 S. Ct. at 572. (Emphasis added.)

This Court thus clearly contemplated declaratory and

injunctive relief in crafting the prevailing party test. To

contend otherwise simply misreads Farrar.

The above analysis demonstrates that each of petitioners’

substantive claims are refuted by the record and/or rejected

by the Eleventh Circuit.

Farrar is not limited to damage actions only; petitioners

would not have been entitled to injunctive relief for ballot

access in 1992, and they similarly will not be so entitled in

10

1996; respondents need not change their behavior in any

way; and petitioners were not unconstitutionally denied

ballot access.

As the Eleventh Circuit said regarding petitioners’ “suc-

cess” in invalidating the reconsideration process and thus

halving their ballot access opportunities:

[Tyhe appellants’ victory is a technical one devoid of

practical benefit to them. As a result of their efforts

and our decision, the appellants have attained noth-

ing more than “ ‘the moral satisfaction [that] results

from any favorable statement of law,’” Farrar, 113

S.Ct. at 573-574 (quoting Hewitt v. Helms, 482 U.S.

755, 762, 107 S.Ct. 2672, 2676 (1987)); such satis-

faction “cannot bestow prevailing party status.” Id.

at 574. (Pet. App. A, pg. 4a.)

CONCLUSION

For these reasons, the petition for writ of certiorari should

be denied.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

GEORGE L. WAAS

Assistant Attorney General

Counsel of Record

Florida Bar No. 129967

OFFICE OF THE ATTORNEY GENERAL

The Capitol — PL-01

Tallahassee, FL 32399-1050

(904) 488-1573