Opposition Brief — Jordahl v. Democratic Party of Virginia

No. 97-859

RS

In The —

Supreme Court of the United States

OCTOBER TERM 1997

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VERN T. JORDAHL, MARY-BETH LAROCK, and

VIRGINIA LEADERSHIP COUNCIL,

Petitioners,

DEMOCRATIC PARTY OF VIRGINIA, RICHMOND

CITY DEMOCRATIC COMMITTEE, and

COMMONWEALTH OF VIRGINIA,

Respondents.

>

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

+

BRIEF IN OPPOSITION

2

Leisa Kube Ciaffone R. Claire Guthrie

Monica L. Taylor Attorney at Law

GENTRY LOCKE 2123 Park Avenue

RAKES & MOORE Richmond, VA 23220

800 Crestar Plaza (804) 353-2315

Post Office Box 40013

Roancke, VA 24038-0013 John Hardin Young*

(540) 983-9300 Attorney at Law

5201 Leesburg Pike

Suite 1100

Falls Church, VA 22041

(703) 998-1100

Counsel for Democratic Party of Virginia

and Richmond City Democratic Committee

*Counsel of Record

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

PARTIES TO THE PROCEEDING

Petitioners are Vern T. Jordahl,

Mary-Beth LaRock and Virginia Leadershi

Council. Respondents are the Democratic

Party of Virginia, the Richmond City

Democratic Committee and the Commonwealth

of Virginia.

Parties to

Table of C

Table of A

Statement

Reasons Fo

%

NO

.

Conclusion

TABLE OF CONTENTS

the Proceeding

ontents

uthorities

of the Case

r Denying The Writ

The Petition misrepresents

the Court of Appeals’

finding regarding the

jJusticiability of the

>

claims in Count I

The Petition misrepres

the Court of Appe

finding that there is )

Jurisdiction under the

Rooker-Feldman doctrine

ii

733

WwW

Oy

TABLE OF AUTHORITIES

Cases cited:

Arizonans for Official English

v. Arizona, U.S. x

ae

133-6: Ge. T1h99. UIST)

tJ

Brown v. Carolina, C & O Ry.,

116 Va. 597, 83 S.E. 981

Pe eg Sige oe a ee Re eo

Cheffer v. McGregor, 6 F.3d 705

(11th Cir. 1993), vacated

on other grounds, 41 F.3d

1421. (740h Cir. 1996) i Soh Ta ieee” 10

District of Columbia Court of

Appeals v. Feldman, 460

U.S. 462 (1983) are Naa. Umestn was See

Henson v. East Lincoln Township,

814 F.2d 410, 416

[7en Cir. 13967), cert,

dismissed, 506 U.S. 1042

IE a ar ee ee 7

ae

Hoover v. Wagner, 47 F.3d 845

Py tm <r. lee) bel TP PU ot pe ee

Jordahl v. Democratic Party of

Virginia, 122 F.3d 192

(4th Cir. 1997) eA Patina a ply ee Ben MAE 7 Oman

e v. Ohio Elections,

40U.S. 334 (1995) Bie aw | ar eee

eH

Northeastern Florida Chapter

“of Ass’n Gen. Contractors

v. City of Jacksonville,

508 U.S. 656 (1993) siohal Page gy i emia

as

Renne v. Geary, 501 U.S. 312

Po etl a Sap es ee ee ee a, ©

.

Rembert v. Sheahan, 62 F.3d 937

(7th Cir. 1995) ON One ke een eae

Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923) ne ENT sy Ee

The Omega Corp. v. Cobb, 222 Va.

875, 292 S.E.2d 44 (1981) igh aero Oe

Statutes cited:

Virginia C

(Michie 1992

Virginia Code Ann. § 24.1-254.1

(repealed) Gage es VON Serer at ee om ee ae ae ee

VU - _— Qn ~ ~ iy >. 6n4

Virginia Code Ann. § 24.2-9

” ~ 4 OO *7 A

(Michie 1997). « »« « » "aid : 4

tvya > ont 7 “A ~ 7 4 r

Virginia Code Ann. § 24. J14(E

|

/ 5] - on? \ A

(Michie 1997} .»« « « : Soe 4

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

This case involves established issues

relating to jJusticiability an

Jurisdiction. The courts below properly

addressed these issues and found that the

district court lacked jurisdiction over

the petitioners’ claims.

In a unanimous opinion, a panel of

the Court of Appeals for the Fourth

Circuit held that the district court

properly dismissed the petitioners’

Complaint on the basis that the claims

were not justiciable and that the Court

was without jurisdiction under the Rooker-

Feldman doctrine. Jordahl v. Democratic

Party of Virginia, 122 F.3d 192 (4th Cir.

1997). Finding that it lacked

Jurisdiction, the Court of Appea|]

properly declined the petitioners’

invitation to address the prior restraint

al Jul ent ’ whic h forms the lea t of t!

Petition for A Writ of Cert raz

(hereafter referred t “Petition”

Phe petitioners now seek to test theirz

constitutional clain whicl we not

considered by the court I

This brief addresses the on] issi

relevant to consideration of the Petit

just lability nd jurisd t For

This brief identifié« t

misstatements of law o1 fact the

Petition, as required by Rule 15.; r the

the reasons that follow, there is no

important issue of law for this Court to

consider.

REASONS FOR DENYING THE WRIT

The courts below thoughtfully

considered the fact-specific issues as to

first, justiciability, and second,

jurisdiction. There are no important

federal issues for this Court to decide.

The constitutional issue concerning prior

restraints, which is arguably the only

important issue raised, is not

justiciable. (App. 39-42.)?

The remaining issue involves’ the

application of the Rooker-Feldman doctrine

to the specific facts of this case. The

petitioners’ claim that the Court of

Appeals’ Rooker-Feldman analysis creates a

conflict among the circuits is incorrect

and misstates the record.

Simply put, there are no novel or

important questions of law for this Court

to decide.

Rules of the United States Supreme Court.

*"“(App. __)" refers to the Appendix

contained in the Petition.

2

I. The Petition misrepresents the Court

cof Appeals’ finding regarding the

justiciability of the claims in Count

Ra

The Court of Appeals correctly found

that the petitioners’ claims based upon

prior enforcement of former versions of

the election laws are moot and that their

claims based upon enforcement of the

current election laws are not ripe. These

findings do not involve any important

issue of law for this Court to consider.

First, the Court of Appeals correctly

held that the petitioners’ claims

concerning enforcement of Virginia’s

former election laws are moot.

To qualify as a case fit for

federal court adjudication, "an

actual controversy must be

extant at all stages of review,

not merely at the time the

complaint is filed."

Arizonans for Official English v. Arizona,

U.8. ; . tae ae ae, 1 eaD, toss

(1997) (civil case became moot on appeal)

(citations omitted). Because the election

laws as they existed when this dispute

arose now have been materially changed, no

actual controversy exists.

The statutes in question have

materially altered the law so as to render

the petitioners’ claims moot. Of the many

changes made to these statutory

provisions, two deserve particular

attention. First, in 1993, the term

"political committee" was defined to

3

exclude 501 (3) (c) corporations. See

Virginia Code Ann. § 24.1-254.1 and

Virginia Code Ann. § 24.2-901 (App. 60,

69-70, 75-77.) Second, the 1996

amendments to § 24.2-1014(B) of the Code

of Virginia added the term "clearly

identified candidate" and deleted the term

"potential nominee." (App. 74.) The

later change reflected recognition of the

law as set forth in the Court’s decision

in McIn e v. Ohio Elections Com’n, 514

U.S. 334 (1995), cited by the Court of

Appeais. (App. 40.)

The petitioners incorrectly state

that "(t]he Court of Appeals did not

dispute Petitioners’ contention . .. that

the recodification and amendments of the

VCFDA did not materially alter the law."

(Petition at 15.) To the contrary, the

Court of Appeals considered the history of

the statutes at issue, noting that the

statutes in 1993 had been twice amended

and then repealed altogether and

recodified. (App. 40.) Indeed, the Court

of Appeals affirmed the district court’s

finding that the "statutes which

[Petitioners] challenged are no longer the

statutes in effect in Virginia." (App.

40.) Thus, an examination of the Court of

Appeals’ opinion confirms that the Court

held that the statutes materially changed

the law so as to render any claim on the

former statutes moot.

The petitioners also assert that the

Court of Appeals’ decision conflicts with

this Court’s ruling in Northeastern

Florida Chapter of Ass’n Gen. Contractors

v. City of Jacksonville, 508 U.S. 656

(1993) and a decision of the Seventh

=

Circuit in Rembert v. Sheahan, 62 F.3d 937

(7th Cir. 1995). First, these cases

involve only insignificant changes made to

a statute. These cases are not in

conflict with the Court of Appeals’

opinion, which found that the changes to

the statutes were material. These cases,

accordingly, have no bearing on the

factual determination made in the present

case.

Second, the Court of Appeals

correctly held that the petitioners’

claims based upon the current election

laws are not ripe. The Court found, on

the record before it, that "[n]o evidence

exists that [the petitioners are]

currently under an actual or threatened

application of the new [Virginia Campaign

Finance Disclosure Act]."*° (App. 41.)

The petitioners, nonetheless, ~rgue

that the Court of Appeals’ finding on

ripeness conflicts with decisions from

this Court and the circuit courts. The

primary case cited by the petitioners,

Renne y. Geary, 501 U.S. 312 (1991),

however, supports the decision of the

Court of Appeals. In Renne, this Court

held that

past exposure to illegal conduct

does not itself show a present

case or controversy regarding

‘The fact that the petitioners had

been subject to injunctions in the past

does not create a credible threat that

Respondents will again seek injunctions.

Indeed, no injunctions were sought in the

1994, 1995, 1996 and 1997 state elections.

5

injunctive wesie£.... i « it

unaccompanied by any continuing,

present adverse effects.

501 U.S. at 321. The petitioners have not

identified any "continuing, present :

adverse effects." Id. In fact, all of

the "harms" alleged by the petitioners in

their Complaint are stated in the past

tense, and relate to orders and statutes

no longer in effect. Thus, there is no

conflict with the decision in Renne.

: The Petition misrepresents the Court

of Appeals’ finding that there is no

jurisdiction under the Rooker-Feldman

doctrine.

The petitioners incorrectly state

that the underlying state court

injunctions were “overturned in the state

court system." (Petition at 24.) From

this faulty premise, the petitioners

suggest that the Court of Appeals’ holding

means that "a federal court lacks

jurisdiction to entertain any claim for

damages arising out of overturned state

court judgments." (Petition at 24.) The

broad reading the petitioners give to the

Court of Appeals’ decision is not

supported by the opinion. In fact, the

Court of Appeals’ opinion is narrowly

tailored to the specific facts before it.

First, the petitioners’ argument that

the injunctions were "overturned in the

state court system" is factually

incorrect. (Petition at 24.) Indeed,

none of the injunctions were overturned.

The 1989 injunctions were dismissed.

(App. 34.) The 1993 Fairfax injunction

6

was dissolved by Order of a three justice

panel of the Supreme Court of Virginia

without opinion pursuant to Virginia Code

§ 8.01-626. (App. 35.) That statute

provides that where a state circuit court

grants an injunction, the aggrieved party

may “present a petition for review to a

justice of the Supreme Court." Virginia

Code Ann. § 8.01-626.* However, this

"summary procedure" is not "a substitute

for an appeal." The Omega Corp. v. C ;

oa¢ : Mes, 2 ff5_. BiG4: 294..8:8.24:. 44, 44

(1981). The petitioners never sought an

appeal of any injunctions to the Supreme

Court of Virginia. Therefore, the Supreme

Court of Virginia could not have

"overturned" any of the injunctions.

None of the state court injunctions,

moreover, were resolved favorably to the

petitioners. There were no dispositions

that altered the validity of the decisions

to issue the injunctions. The petitioners

did not "succeed" in having the

injunctions overturned in the state court.

The district court may not now, in a

collateral proceeding, pass upon the

validity of the injunctions.

Second, the Rooker-Feldman doctrine

bars a district court from reviewing

“challenges to state court decisions in

particular cases arising out of judicial

proceedings." District of Columbia Court

of Appeals v. Feidman, 460 U.S. 462, 482

(1983). The district court "has no

authority to review final judgments of a

‘The text of this statute is set forth

at Respondents’ Appendix, p.1.

7)

state court in judicial proceedings." Id.

(emphasis added).

A judgment is final when it is a

determination of the particular

action or suit, although it is

not a final determination of the

rights of the parties.

Brown v. Carolina, C & O Ry., 116 Va. 597,

599, .@3--8.B... 381, Sez... (194i; The

petitioners’ remedy in this case was to

seek appeals of the final injunction

orders to the Supreme Court of Virginia.

They failed to do so. They cannot bypass

direct review in the state’s highest court

and seek, instead, to have the district

court pass upon the validity or propriety

of the state court injunctions.

The petitioners suggest that the

decision of the Court of Appeals conflicts

with this Court’s decision in Heck v.

Humphrey, 512 U.S. 477 (1994). To the

contrary, the Heck decision supports the

decision in this case.’

Heck involved a prisoner who brought

a § 1983 action relating to his state

court conviction for voluntary

manslaughter. While his appeal to the

state court was pending, Heck filed a §

1983 action in federal district court

against the state court prosecutors and

the state police. The district court

dismissed the appeal. While his appeal

°It should be noted that Heck was a

criminal case that did not directly

involve the Rooker-Feldman doctrine.

8

was pending to the Seventh Circuit, his

conviction was uffirmed by tthe state

Supreme court.

Drawing an analogy to the favorable

termination requirement in malicious

prosecution actions, this Court recognized

that civil tort plaintiffs may not mount

collateral attacks on their outstanding

Criminal convictions. Heck, 512 U.S. at

486. This Court did not address the issue

as one involving the Rooker-Feldman

doctrine, but rather, merely cited the

decision in Rooker v. Fidelity Trust

Company, 263 U.S. 413 (1923), among other

cases, as "“express[ing] similar concerns

for finality and consistency." Id. at

484-485. This Court declared, in the

context of this criminal case, that

in order to recover damages for

allegedly unconstitutional

conviction or imprisonment, or

for other harm caused by actions

whose unlawfulness would render

a conviction or sentence

invalid, a § 1983 plaintiff must

prove that the conviction or

sentence has been reversed on

direct appeal, expunged by

executive order, declared

invalid by a state tribunal

authorized to make such

determination, or called into

question by a federal court’s

issuance of a writ of habeas

corpus.

Id. at 486-487. By comparison, the state

court injunctions at issue here have never

been reversed oon direct appeal or

otherwise declared invalid.

Third, the petitioners incorrectly

contend that the Court of Appeals’ finding

that the state court injunctions were

judicial in character, rather than

legislative, creates a conflict among the

circuits. Both courts below found the

specific injunctions at issue here to be

judicial in character, and therefore

subject to the Rooker-Feldman bar. (App.

27-28, 47-49.) These findings were based

upon the fact-specific inquiry required

for such a determination. See Feldman,

460 U.S. at 482 (in determining whether

the proceeding is judicial, "the nature

and effect" of the proceeding is

controlling.)

The petitioners cite to three federal

circuit court cases which they claim

conflict with the Court of Appeals’

decision. (Petition at 29.) These cases,

however, do not involve the factual issue

before the Court of Appeals in this case.

Indeed, in Cheffer v. McGregor, 6 F.3d 705

CTIRe.:. Cie, (993), vacated on other

grounds, 41 F.3d 1421 (11th Cir. 1994),

the issue did not even arise in a Rooker-

Feldman context. In its opinion, the

Court of Appeals distinguished the holding

in Cheffer. (App. 48-49.) That case,

then, does not conflict with the decision

of the Court of Appeals in the case at

bar.

Nor does the decision in Hoover v. Wagner,

47 F.3d 845 (7th Cir. 1995), conflict with

the Court of Appeals’ decision. (Petition

at 29.) The Court’s statement in Hoover

10

that "[iJnjunctions often do function

quite like statutes" was dictum. 74. at

849. Likewise, the decision in Henson v.

incol WwW » 814 F.2d 410 (7th

Cir. 1987), - dismi , 306 U.S. 1042

(1993), does not conflict with the Court

of Appeals’ decision. In Henson, the

Court held that a double class action is a

“legislative or regulatory device." Id.

at 416. The decision in Henson, then, is

limited to its facts. Consequently, the

Court of Appeals’ finding that the

injunction proceedings were judicial does

not conflict with any of the cases cited

by the petitioners.

Finally, there is no conflict among

the circuits as to whether Rooker-Feldman

applies to damages claims arising out of

ex parte state court injunctions. The

cases cited by the petitioners dealt with

entirely different factual scenarios than

the case at bar. The Court of Appeals

addressed this argument, finding that the

petitioners had been given an opportunity

to be heard or to state objections in the

state court proceedings. (App. ~§ 53.)

Thus, the petitioners’ attempt to create a

conflict among the circuits on this issue

is without merit.

CONCLUSION

The Petition for a Writ of Certiorari

should not be granted.

11

Dated: December 23, 1997

Respectfully submitted,

Leisa Kube Ciaffone

Monica lL. Taylor

GENTRY LOCKE RAKES & MOORE

800 Crestar Plaza

P.O. Box 40013

Roanoke, Virginia 24038-0013

(540) 983-9300

R. Claire Guthrie

2123 Park Ave.

Richmond, Virginia 23220

(804) 353-2315

John Hardin Young*

5201 Leesburg Pike

Suite 1100

Falls Church, Virginia 22041

(703) 998-1100

Counsel for Democratic Party of Virginia

and Richmond City Democratic Committee

* Counsel of Record

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