Opposition Brief — Moore v. Hosemann

Supreme Court, U.S.

FILED

No. 09-982 APR 19 2010

Peg eee OFFICE OF THE CLERK

Hn the

Supreme Court of the United States

BRIAN MOORE.

Petitioner,

Vv.

DELBERT HOSEMANN,

MISSISSIPPI SECRETARY OF STATE,

Respondent

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

HAROLD EDwakb Pizzetta IT]

Counsel of Record

OFFICE OF THE ATTORNEY GENERA

450 HIGH STREET, P.O. Box 220

JACKSON, MS 39205-0220

(601) 359-3680

HPIZZ@ago.state.ms.us

Counsel for Respondent

April 19, 2010

Becker Gallagher « Crcinnat, OH - Waslungton, D.C. - 800.890.5001

Questions Presented

Whether the court of appeals correctly held that the

waiver of service provision in Federal Rule of Civil

Procedure 4(d) does not apply to a state constitutional!

officer sued exclusively in his official capacity.

Whether the court of appeals correctly abstained

pursuant to Railroad Commission v. Pullman Co. in

light of the unique legal and factual context of this

case.

i]

Table of Contents

Questions Presented

Table of Contents

Table of Authorities

—~

Constitutional, Statutory, and Other Provisions

Involved . A 7 ee eee ea

Statement of the Case

(1) The 2008 Version of Section 23-15

Te a ee i ee ee eee

(2) Petitioner's 2008 Attempt to File and

Subsequent Litigation ....

(3) The 2010 Amendment to Mississippi

Code Section 23-15-785(2)

Reasons to Deny the Petition

I. Review of the Fifth Circuit’s Holding

Regarding Waiver Under Rule 4(d) is

Unwarranted. ee ee ree

A. There is no Circuit Split as the Fifth

Circuit 1s the Only Circuit Court to

Address the Application of Rule 4(d)’s

Waiver Provision to State Officers Sued

in Their Official Capacities.

B. This is a Poor Vehicle to Review the

Application of Rule 4(d) Because

i]

C.

lil

Petitioner Failed to Comply with Rule

4(d)’s Requirements. ...............

This is a Poor Vehicle for Review Because

the Record is Undeveloped Regarding the

Meetnod of Service. ...........cccec.

Il. Review of the Fifth Circuit’s Keliance on

Pullman Abstention is Not Warranted. ...

A.

The Issue of Pullman Abstention verses

Question Certification is Moot and the

Relief Articulated in Petitioner’s

Supplemental Brief is Barred by the

Eleventh Amendment. .............

If Not Moot, the Fifth Circuit’s

Abstention Under Pullman was a

Factually Dependent Decision Unsuitable

a

MTICUUBION ......cccccces AOA DM eet

Appendix

Appendix A: Mississippi Legislature, Regular

Session 2010 Senate Bill No.

a ae ee

Appendix B: Order Denying Preliminary

Injunction, in The United States

Court for the Southern District of

Mississippi, filed September 29,

2008 .... ee Ae ee !

17

20

—_—

1b

lV

Appendix C: Letter and Waiver of Service. 10b

Table of Authorities

Cases

Arizonans for Official English v. Arizona,

5269 U.S. 43 (1997)

Board of Pub. Util. Comm’rs v. Comparita General

De Tabacos De Filipinas,

249 U.S. 425 (1919)

Bunting v. Mellen,

541 U.S. 1019 (2004)

Bush v. Gore,

31 U.S. 98 (2000)

Cardinale v. Louistana

394 U.S. 437 (1969)

Caisse v. Dubois.

346 F.3d 213 (1 Cir. 2003)

Chapman vu. N.Y.State Div. for Youth,

227 F.R.D. 175 (N.D.N-Y. 2005)

Church of Scientology of California

906 U.S. 9 (1992)

City of Houston, Tex. v. Hill,

482 U.S. 451 (1987)

City of Mesquite v. Aladdin’s

155 US. 283 (1982)

Cupe v. Lantz,

470 F. Supp. 2d 1386 (D. Conn. 2007) . 11, 12, 16

Department of Treasury v. Galioto,

477 U.S. 556 (1986)

Echevarria-Gonzalez v. Gonzalez-Chapel,

849 F.2d 24 (1* Cir. 1988) 13, 14, 15,

Edelman v. Jordan,

415 U.S. 651 (1974)

Green v. Mansour,

474 U.S. 64 (1985)

Hall v. Beals,

396 U.S. 45 (1969)

Hawaii Housing Authority v. Midkiff,

467 U.S. 229 (1984)

Izumi Seimitsu Kogyo Kabushiki Ka

Phillips Corp..,

510 U.S. 27 (1993)

Kremens v. Bartley,

431 U.S. 119 (1977)

Libertarian Party v. Dardenne,

No. 08-582, 2009 WL 790149 (M.D.La. Mar. |

2009), affd, 595 F.3d 215 (5" Cir. 2010)

Marcello v. Maine,

238 F.R.D. 113 (D. Me. 2006

Mills v. Green,

159 U.S. 651 (1895)

Mosby v. Douglas County Corr. Ctr.,

192 F.R.D. 282 (D. Neb. 2000)

Packwood v. Senate Select Comm. on Ethics,

510 U.S. 1319 (1994)

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984)

Princeton Univ. v. Schmid,

455 U.S. 100 (1982) (per curiam)

Randall v. Crist,

No. 5:03-ev-00220, 2005 WL 5979678 (N.D. Fla.

Nov. 1, 2005)

Reno v. Bossier Parish School Bd..,

528 U.S. 320 (2000)

Stotanoff v. Comm. of Motor Vehicles,

No. 99-7363, 2000 WL 287720 (2™° Cir. Mar. 16,

2000) .. Fo ek Ok eee NED ohare).

Sullivan v. Gagnier,

225 F.3d 161 (2"% Cir. 2000)

Whatley v. District of Columbia,

188 F.R.D. 1 (D.D.C. 1999)

Will v. Michigan Dep't of State Police,

191 U.S. 58 (1989)

Vill

Constitution

U.S. Comet. AiG I ee ew cst ciee. 6,6, iZ

Statutes

42 U.S.C. © Rae eee ee ee eee... 8

42 U.S.C. § Me ........... 6, 11

Miss. Code § 7-3-3 (Rev. 2002) .............. 1,5

Miss. Code § 23-15-785(2) (as amended by S. B.

3058, Reg. Sess. (Miss. 2010), approved by the

Governor on March 17, 2010) .......... passim

Miss. Code § 23-15-785(2) (Rev. 2007) .... 3,4, 5,6

Miss. Code § 25-1-98 (Rev. 2006) ............ )

Rules

Fed. R. Caw, 2 ee es wee keen 11,14,18

Fed. i. Caw, 9 See ew hs we ee eee passim

Fed. R. Civ. FF, Sagan 3. sess 1, 2, 17, 18, 19, 20

Fed. R. Civ. P. 4(d)1M ANG) .. 2.22... rare |,

Fed. R. Cav. F Sie wwe. es...... 18

Fed. R. Civ. 9. eee so ae oc oa Wy

Fed. R. Civ. Fi S0eeee sw es wee ee ees. ae

Fed. R. Civ. P. 4(d)(1)(G) . ne eer

oe Bt el: | re 7, 17, 18, 19

Fed. R. Civ. P. 4(e) | 10, 12, 13, 14, 20

Poa. Cav. F. 40) ......0555.sce..s BS ee

roa. B. Civ. F- GS)... 6k se ees Pern:

Sup. Ct. R. 10(a) -eeees oe

Regulations

28 C.F.R. § 51.9(a) | Ai oe a oe

25 UF... $51.52 .. setae nae gy una gta ae

Other

4A Charles Alan Wright et al., Federal Practice &

Procedure § 1092.1 (3d ed 2010) ...... . 14

http:/billstatus.ls.state.ms.us/documents/2010/

pdf/SB/3000-3099/SB3058IN.pdf. ........ . 8

1

Constitutional, Statutory, and Other

Provisions Involved

In addition to the items cited by the petitioner, the

respondent restates the operative state statute to

reflect a recent amendment that moots the legal issue

giving rise to the suit. The respondent also sets forth

additional state statutes and further provisions of

Federal Rule of Civil Procedure 4(d)(1) that are

relevant but were not cited by the petitioner.

Miss. Code § 23-15-785(2) (as amended by S. B.

3058, Reg. Sess. (Miss. 2010), approved by the

Governor on March 17, 2010):’

The certificate of nomination by a political party

convention must be signed by the presiding

officer and secretary of the convention and by

the chairman of the state executive committee

of the political party making the nomination.

Any nominating petition, to be valid, must

contain the signatures as well as the addresses

of the petitioners. The certificates and petitions

must be filed with the State Board of Election

Commissioners by filing them in the Office of

the Secretary of State by 5:00 p.m. not less than

sixty (60) days previous to the day of the

election.

Miss. Code § 7-3-3:

]

Senate Bill 3058 is reprinted ‘n the Brief in Opposition’s

Appendix A (Opp. App.) 1b-4b

2

The secretary of state shall keep his office at the

seat of the government, shall keep the same

open Monday through Friday of cach week for

eight hours each day, and shall carefully

preserve the official books, library, papers,

records, and furniture belonging to his office.

Miss. Code § 25-1-98:

In addition to any other times required by

statute, all state offices shall be open and

staffed for the normal conduct of business from

8:00 a.m. until 5:00 p.m., Monday through

Friday, except on legal holidays as set forth in

Section 3-3-7.

Federal Rule of Civil Procedure 4(d)(1):

(1) Requesting a Waiver. An_ individual,

corporation, or association that is subject to

service under Rule 4(e), (f), or (h) has a duty to

avoid unnecessary expenses of serving the

summons. The plaintiff may notify such a

defendant that an action has been commenced

and request that the defendant waive service of

a summons. The notice and request must:

(A) be in writing and be addressed:

(1) to the individual defendant; or

(ii) for a defendant subject to service under Rule

4(h), to an officer, a managing or general agent,

or any other agent authorized by appointment

or by law to receive service of process;

(B) name the court where the complaint was

filed:

(C) be accompanied by a copy of the complaint,

two copies of a waiver form, and a prepaid

means for returning the form;

(D) inform the defendant, using text prescribed

in Form 5, of the consequences of waiving and

not waiving service;

(FE) state the date when the request is sent;

(F) give the defendant a reasonable time of at

least 30 days after the request was sent--or at

least 60 days if sent to the defendant outside

any judicial district of the United States--to

return the waiver; and

(G) be sent by first-class mail or other reliable

means.

Statement of the Case

Mississipp1 Code Section 23-15-785(2) required

petitioner’s presidential candidate qualifying papers to

be filed with the office of the Secretary of State not less

than sixty days prior to the November 2008 general

election. Miss. Code Ann. § 23-15-785(2) (Rev. 2007).

The version of Section 23-15-785(2) in effect in 2008

did not address the hour at which the Secretary’s office

should close on the sixtieth day before the general

election. The underlying dispute in this case involves

the Secretary’s closure of his office at the traditional

hour of 5:00 p.m. on the last day that qualification

petitions could be timely filed with his office. Despite

4

petitioner’s prior knowledge of the business hours of

the Secretary's office, petitioner admittedly arrived

after 5:00 p.m. on that last day and was unable to file

his petition because the office was closed.

In this litigation, petitioner asserts that because

section 23-15-785(2) did not specify that the

Secretary's office must close at 5:00 p.m. the office was

required to deviate from its normal business hours and

remain open until midnight in order to receive

petitioner's filing. The Secretary notes that other

provisions of the Mississippi code provide that the

Secretary's office is open eight hours per work day,

from 8:00 a.m. until 5:00 p.m. In an attempt to

transform a disagreement with the. Secretary’s

interpretation of state law into a federal constitutional

claim, petitioner asserts that the Secretary’s decision

to close his office at 5:00 p.m. when such a time was

not explicitly set forth in Section 23-15-785(2) was a

usurpation of the Mississippi legislature’s authority to

direct the manner of appointment of presidential

electors under Art. II, § 1, cl. 2 of the United States

Constitution. Pet. 6 (citing Bush v. Gore, 531 U.S. 98

(2000)).

Important to this Court, Section 23-15-782(2) was

amended during the 2010 legislative session to remove

any doubt that presidential qualifying petitions must

be filed by 5:00 p.m. on the sixtieth day before the

general election. Opp. App. 2b. Because the

legislature has now expressly adopted a 5:00 p.m.

deadline, petitioner’s allegation that the Secretary is

acting contrary to the legislatur’’s direction is

definitively answered. This legislative action moots

the petitioner’s only claim, a claim for prospective

relief requiring the Secretary’s office to remain open

5)

until midnight on the last day to file future

presidential candidate petitions.

(1) The 2008 Version of Section 23-15-785(2).

The version of Mississippi code section 23-15-785(2)

in effect in 2008 required presidential nominating

petitions from political parties to be submitted to the

“State Board of Election Commissioners by filing the

same in the office of the Secretary of State not less

than sixty (60) days previous to the day of the

election.” See Miss. Code Ann. § 23-15-785(2) (Rev.

2007). Pursuant to the sixty-day deadline, petitioner

was required to file his petition by Friday, September

5, 2008. Pet. 5. Section 23-15-785(2) did not direct the

Secretary to keep his office open beyond its traditional

hours of operation. Indeed, other statutory provisions

expressed the legislature’s intent that the Secretary’s

office should be open from 8:00 a.m. to 5:00 p.m. on

regular business days. See Miss. Code Ann. § 7-3-3

(Rev. 2002) (“The secretary of state shall keep his

office at the seat of the government, shall keep the

same open Monday through Friday of each week for

eight hours each day, ....”); Miss. Code Ann. § 25-1-98

(Rev. 2006) (“In addition to any other times required

by statute, all state offices shall be open and staffed for

the normal conduct of business from 8:00 a.m. until

5:00 p.m., Monday through Friday,. ...”) On

September 5, the Secretary closed his office at the

traditional hour of 5:00 p.m. as required by state law.

Prior to September 5, petitioner was aware that the

office would close at 5:00 p.m. and that his documents

must be filed before that time. Opp. App. 6b.

6

(2) Petitioner’s 2008 Attempt to File and

Subsequent Litigation

After missing the known 5:00 p.m. deadline,

petitioner filed this action pursuant to 42 U.S.C.

§ 1983 alleging that the Secretary’s closure of his office

at 5:00 p.m. when Section 23-15-785(2) made no

mention of 5:00 p.m. was a “significant departure”

from the Mississippi legislature’s designated process

for the selection of presidential electors so as to usurp

the legislature’s authority under Art. II, § 1, cl. 2 of the

United States Constitution.“ Pet 6. The complaint

sought prospective relief placing petitioner on the

November 2008 presidential ballot.

At the preliminary injunction hearing, petitioner

testified that he was aware prior to September 5 that

the Secretary’s office would close at 5:00 p.m. and that

his petition must be filed before 5:00 p.m. Opp. App

6b. The district court denied the preliminary

injunction motion, finding in part that the Secretary’s

“interpretation of state election law and _ his

determination to close his office at the traditional time

of 5:00 p.m. is reasonable and cannot be said to be

inconsistent with the state’s election statutes.” Jd. at

7b. The Fifth Circuit declined petitioner’s request for

an emergency stay, and petitioner subsequently

dismissed his interlocutory appeal and request for

emergency relief pending before the Fifth Circuit.

Petitioner conceded to the district court that a 5:00 p.m

deadline, if consistent with state law. ji not itself

unconstitutional. Opp. App. 8b

,

~]

On March 10, 2009, the district court granted the

Secretary's motion to dismiss the complaint as moot in

light of the concluded 2008 election. On April 9, 2009,

petitioner filed a motion for expenses under Federal

Rule of Civil Procedure 4(d)(2). The Secretary opposed

the motion because Rule 4(d) does not apply to a suit

brought against a _ state constitutional officer

exclusively in his official capacity and because

petitioner failed to comply with the mandatory

procedural requirements of Rule 4(d). The district

court denied the motion for expenses “for the reasons

assigned in defendant’s response.” Pet. App. 24.

Petitioner appealed the dismissal and the order

denying expenses. The Fifth Circuit affirmed the

denial of petitioner’s motion for expenses, finding that

Rule 4(d) does not apply to state officers sued only in

their official capacity. Pet. App. 10-13. The Fifth

Circuit reversed the dismissal on the grounds of

mootness, abstained from considering the merits under

Pullman, and remanded the case for the district court

to “consider whether to abstain” under Pullman. Pet.

App. 1-10. On remand, the district court abstained

under Pullman.

To the best of respondent’s knowledge, petitioner

has not filed a “new round of litigation in state court.”

See Pet. 10.

(3) The 2010 Amendment to Mississippi Code

Section 23-15-785(2).

During the 2010 session, the Mississippi legislature

amended Section 23-15-785(2) to resolve any

misconception about the deadline by which

presidential qualifying petitions must be filed. The

8

legislature added language specifying that the filings

must be made “by 5:00 p.m. not less than sixty (60)

days previous to the day of the election.” See Opp.

App. 2b (added language in italics). Mississippi is a

covered jurisdiction under Section 5 of the Voting

Rights Act, and the legislation requires the Attorney

General to submit the clarification to the Department

of Justice for preclearance. Opp. App. 3b. The

amendment was transmitted to the Department on

April 13, 2010. The preclearance process is generally

completed within sixty days of the Department’s

receipt of the submission. See 28 C.F.R. § 51.9(a). The

respondent fully expects the amendment to be

precleared as it is uncontroversial; denies no one the

right to vote; and has no discriminatory “purpose” nor

“effect” with respect to race, color, or membership in a

language minority group. See Reno v. Bossier Parish

School Bd., 528 U.S. 320, 328 (2000); 42 U.S.C.

§ 1973c; 28 C.F.R. § 51.52.

A full thirty days after the Governor signed into

law the amendment to Section 23-15-785(2), and on

the last business day before respondent’s opposition

was due, petitioner thought it wise to inform this

Court of the amendment by filing a supplemental brief.

Petitioners supplement casts the actions of

Mississippi's legislative and executive branches as a

dastardly attempt to “cause mootness” by enacting the

amendment “on the day this Court called for a

response.” Supp. Pet. 3. In fact, the legislation was

introduced in January 2010, after the Fifth Circuit

abstained and before petitioner filed with this Court.”

See http://billstat us.ls.state.ms.us/documents/2010/pdf/SB/3000

3099/SB3058I1N pdf

y

The bill was approved by the Governor on March 17,

2010. This Court did not call for a response until

March 19. Far from an unscemly act, the legislature

addressed the exact infirmity alleged to exist by

petitioner. Petitioner’s complaint sought to prohibit

the Secretary from closing at 5:00 p.m. on the sixtieth

day before presidential general elections solely because

petitioner believed a 5:00 p.m. deadline had not been

authorized by the Mississippi legislature. Indeed,

Petitioner conceded to the district court that a 5:00

p.m. deadline, if consistent with state law, is not itself

unconstitutional. Opp. App. 8b. ‘The legislature has

now removed any doubt regarding its direction that

qualifying petitions must be filed by 5:00 p.m. It is

ironic that the legislature’s act of addressing

petitioners alleged constitutional infirmity is

considered by petitioner to be the legislature’s

wrongful spoiling his argument.

While the supplemental briefs legal arguments

regarding mootness are addressed below, it is

important to note that petitioner has offered no reason

whatsoever why the Department would not preclear

this uncontroversial amendment. See Supp. Pet. 2.

Preclearance is fully expected.

10

Reasons to Deny the Petition

[. Review of the Fifth Circuit’s Holding

Regarding Waiver Under Rule 4(d) is

Unwarranted.

A. There is no Circuit Split as the Fifth

Circuit is the Only Circuit Court to

Address the Application of Rule 4(d)’s

Waiver Provision to State Officers Sued in

Their Official Capacities.

Put simply, there is no direct conflict among the

circuits regarding the precise question addressed by

the Fifth Circuit. The Fifth Circuit is the only circuit

court to address the application of Rule 4(d)’s waiver

of service of process provision to state officers sued

solely in their official capacity. Petitioner, recognizing

that no other circuit has addressed this issue, attempts

to manufacture a conflict with the First and Second

Circuits by arguing that opinions of those circuits

regarding other provisions of Rule 4, decided in wholly

different contexts, conflict in principle with the Fifth

Circuit’s conclusion. The alleged conflict is overstated.

Although petitioner suggests otherwise, this case

does not involve a challenge to the sufficiency of

service of process under Rule 4(e) or 4(j) nor does it

involve an application of Will v. Michigan Dep't of

State Police, 491 U.S. 58 (1989). Instead, the Fifth

Circuit reviewed a narrow question regarding Rule

4(d)’s waiver provision. Noting the Advisory

Committee’s explanation of Rule 4(d)’s policy and

limited application, the Fifth Circuit concluded that a

state officer sued only in his official capacity is not

subject to the waiver provision in Rule 4(d). Pet.

11

App.10-13. The 1993 Advisory Committee noted that

the United States and other governmental entities are

not expected to waive service for the reason that their

“mail receiving facilities are inadequate to assure that

notice is actually received by the correct person.” Fed.

R. Civ. P. 4 advisory committee note. Directly on

point, the Advisory Committee further explained that

as a matter of public policy “governmental entities

should not be confronted with the potential for bearing

costs of service in cases in which they ultimately

prevail.” Jd. When, as in this case, the Secretary of

State is named exclusively in his official capacity in a

suit taking issue with his routine interpretation and

execution of state law, it would be the “governmental

entity,” i.e., the State and its taxpayers, that would

bear the costs of service. The Fifth Circuit concluded

that “the most reasonable reading” of Rule 4(d)

excludes its anplication to purely official capacity

claims.* Pet. App. 12. While the Fifth Circuit is the

only circuit court to address Rule 4(d)’s application to

official capacity claims, the holding is consistent with

all but one of the known district court opinions

considering the precise question. See Chapman ov.

N.Y.State Div. for Youth, 227 F.R.D. 175, 179-180

(N.D.N.Y. 2005) (finding Rule 4(d) inapplicable to

official capacity claims); accord Randall v. Crist, No.

9:03-cv-00220, 2005 WL 5979678, at *2(N.D. Fla. Nov.

1, 2005); Cupe v. Lantz, 470 F. Supp. 2d 136, 138 (D.

Conn. 2007); Libertarian Party v. Dardenne, No. 08-

582, 2009 WL 790149, at * 5(M.D.La. Mar. 24, 2009),

affd, 595 F.3d 215 (5th Cir.2010); but see Marcello v.

* The Fifth Circuit also noted that Will’s definition of a “person”

for purposes of 42 U.S.C § 1983 was unrelated to the definition of

an “individual” for purposes of Rule 4(d). Pet. App. 13 n.5.

12

—

Maine, 238 F.R.D. 113, 115 (D. Me. 2006) (finding Rule

4(d) applicable to official capacity claims).

Petitioner errs in suggesting that the Second

Circuit’s unpublished decision in Stotanoffv. Comm. of

Motor Vehicles is in conflict with the Fifth Circuit’s

holding that Rule 4{d) does not apply to official

capacity suits. Stoianoff, No. 99-7363, 2000 WL

287720 (2"° Cir. Mar. 16, 2000); Pet. 12. Stoianoff

addressed sufficiency of service under Rule 4(j) and

did not address the application of Rule 4(d). After

finding that the pro se litigant had failed to properly

serve an Official capacity complaint pursuant to Rule

4{j), the Stoianoff decision noted in dicta that “it may

be” that service of the official capacity complaint could

be accomplished through Rule 4(e) but that the issue

need not be decided because service through the means

authorized by state law would satisfy both Rule 4(e)

and Rule 4(4j)(2). Id. at * 1,2. Further, Stotanoff is an

unpublished opinion not relied upon as authority

within the Second Circuit. See Sullivan v. Gagnier,

225 F.3d 161, 165 n.4 (2 Cir. 2000) (noting

unpublished opinions are not precedent). Most

importantly, that the Second Circuit did not decide the

application of Rule 4(d)’s waiver provision to official

capacity suits is evidenced by the fact that subsequent

district court decisions within the Second Circuit do

not cite Stoianoff. In fact, those subsequent district

court opinions agree with the Fifth Circuit’s conclusion

that Rule 4(d) does not apply to suits against state

officers in their official capacity. See Chapman, 227

F_R.D. at 179-180; Cupe, 470 F. Supp. 2d at 1388. The

13

Second Circuit’s holding in Stoianoff is not at odds

with the Fifth Circuit’s application of Rule 4(d).°

With respect to the First Circuit’s decision in

Echevarria-Gonzalez v. Gonzalez-Chapel, the Fifth

Circuit’s opinion accurately noted that Echevarria

addressed only “whether plaintiffs had made adequate

service on state official defendants” and not “whether

a state official was subject to mandatory waiver

obligations under rule 4(d).” Pet. App. 12 (citing

Echevarria, 849 F.2d 24 (1* Cir. 1988)). While

Echevarria’s holding is clearly limited to sufficiency of

service,’ the decision is further removed from the

question of waiver because it predates the current,

1993 version of Rule 4(d) and the Advisory

Committee’s explanation that Rule 4(d) was not

intended to require governmental entities to bear the

Petitioner’s brief to the Fifth Circuit claimed that Stoinanoff

evidenced that the Second Circuit “seems to be leaning” in the

direction of applying Rule 4(e) to official capacity claims. Brief of

Appellant before the Fifth Circuit at 49 n. 23. Before this Court,

petitioner has escalated his rhetorical claim.

° Although removed from the question addressed by the Fifth

Circuit, petitioner identifies no other circuit court that has

adopted Echevarria’s holding that a state officer sued exclusively

in his official capacity is treated as an “individual” under Rule 4(e)

rather than as a governmental entity under Rule 4(j). Rule 17(d)’s

direction that an officer sued in his official capacity may be

“designed by official title rather than by name,” as well as Rule

25(d)’s automatic substitution of successors of public officers sued

in their official capacity, both undermine Echevarria’s conclusion

that officers suec in their official capacities are nothing more than

traditional “individual” defendants under Rule 4(e)

14

costs of service.’ In this matter, it was the petitioner

who argued that Echevarria’s reascaing should be

extended beyond the First Circuit’s holding and

applied to a different section of Rule 4, a section the

current version of which was not in existence at the

time of Echevarria. The Fifth Circuit’s opinion was

explicitly limited to rejecting petitioner’s expansive

application of Echevarria. Any disagreement was only

“insofar” as Echevarria’s reasoning was argued by

petitioner to govern a different and revised section of

Rule 4.° Pet. App. 12.

4

‘

The 1993 amendments to Rule 4 expanded the waiver provision

to about twice the length of its former version and provided “a

clarity and level of precision that was missing from its

predecessors.” 4A Charles Alan Wright et al., Federal Practice &

Procedure § 1092.1 (3d ed 2010). Importantly, it was not until the

1993 notes that the Advisory Committee explained that as a

matter of public policy “governmental entities should not be

confronted with the potential for bearing costs of service in cases

in which they ultimately prevail.” Fed. R. Civ. P. 4 advisory

committee note. Also in the 1993, the Advisory Committee

further explained that the United States and other governmental

entities are not expected to waive service for the reason that their

“mail receiving facilities are inadequate to assure that notice is

actually received by the correct person.” Jd

The petition also cites the First Circuit’s opinion in Caisse v

Dubois, 346 F.3d 213 (1* Cir. 2003), as evidence of the alleged

conflict. Caisse involved a dispute over the sufficiency of service

in which the First Circuit merely restated that, according to

Echevarria, service of process for public employees is governed by

Rule 4(e). Id. at 216. Cassie did not involve an application of Rule

4(d)’s waiver provision nor did the opinion examine Echevarria in

light of the amendments and accompanying Advisory

Committee notes

15

To be sure, the opinion below suggests a limited

disagreement with Echevarria, a reference on which

the petition relies heavily. But petitioner overstates

this alleged conflict. At best, petitioner can maintain

that given the conclusion reached by Lchevarria

regarding sufficiency of service, the First Circuit may

disagree with the Fifth Circuit if and when it considers

Rule 4(d)’s application to official capacity claims. But

this is speculation, not a pronounced and existing

intclerable conflict between circuit courts. Indeed, it

may well be that since Echevarria was decided over

twenty years ago, and given the changes to Rule 4(d),

the 1993 committee notes, and the intervening

opinions of the Fifth Circuit and many district courts,

the First Circuit may, when it considers the precise

question, agree that Echevarria’s statements regarding

sufficiency of service were not intended to subject state

officers, and thereby the state, to the waiver provisions

of Rule 4(d). Petitioner’s premonition as to how the

First Circuit would address the question does not

present an actual “direct conflict” suitable for review.

See Bunting v. Mellen, 541 U.S. 1019, 1021 (2004)

(denying certiorari and finding speculation regarding

how a circuit court would resolve a question is an

insufficient basis on which to claim a conflict).”

* The remaining cases cited by petitioner in support of the alleged

conflict among circuits are not persuasive. Pet. 13,n.9. None of

the cases were decided by a court of appeals. Cf Sup. Ct. R. 10(a).

Further, Whatley and Mosby did not address whether Rule 4(d)

applics in official capacity only claims because those defendants

were either named in both their official and individual capacities

or only in their individual capacity. Whatley v. District of

Columbia, 188 F.R.D.1,2(D.D.C. 1999); Mosby v. Douglas County

Corr. Ctr., 192 F.R.D. 282 (D. Neb. 2000). The Fifth Circuit’s

decision did not address, and there appears to be no circuit split

16

In sum, the opinion below and Echevarria

addressed different questions governed by different

sections of Rule 4. Echevarria’s relevance is further

undermined by the intervening Advisory Committee

notes explaining the public policy against applying

Rule 4(d) in instances in which governmental entities

and their taxpayers will bear the costs. Because the

Fifth Circuit is the only circuit to address the matter,

there is not a genuine conflict among the circuit courts

regarding the application of Rule 4(d) to official!

capacity claims. This Court should permit circuit

courts other than the Fifth Circuit to address the

precise question before considering review.

regarding, whether a government employee sued at least in part

in their individual capacity is subject to the waiver requirements

of Rule 4(d). The petition has identified a single court, a district

court, that has found Rule 4(d)’s waiver provision to be applicable

to official capacity suits. Marcello v. Maine, 238 F.R.D. 113 (D.

Me. 2006). Even if this district court opinion was a sufficient

basis for review under Supreme Court Rule 10(a), it is an outlier

opinion that appears not to have been relied upon by other courts

and is contrary to the opinion below as well as district court

opinions in the Second, Fifth, and Eleventh Circuits finding that

Rule 4(d) does not apply to official capacity suits. See Chapman,

227 F.R.D. at 179-180 (N.D.N.Y. 2005); Randall, 2005 WL

5979678 *2(N.D. Fla. Nov. 1, 2005); Cupe, 470 F. Supp. 2d at 138

(D. Conn. 2007); Libertarian Party, 2009 WL 790149 *5(M.D. La

Mar. 24, 2009). A lone district court opimion does not merit the

time and attention of this Court

17

B. This is a Poor Vehicle to Review the

Application of Rule 4(d) Because

Petitioner Failed to Comply with Rule

4(d)’s Requirements.

Separately, this case is a poor vehicle for exploring

whether Rule 4(d)’s waiver provision applies to official

capacity claims against state officers: The outcome of

this case would be unchanged because petitioner's

recovery of expenses under Rule 4(d)(2) is barred by

his failure to comply with the mandatory procedural

requirements of Rule 4(d)(1). The procedures imposed

by Rule 4(d)(1) on plaintiffs are no less mandatory

than, and are a predicate to, the requirement that a

defendant pay the costs of service under Rule 4(d)(2).

First, Rule 4(d)(1)(C) and (D) require that the

notice and request sent by a plaintiff contain both the

waiver of service form and a separate document

containing the “text prescribed in Form 5” informing

the defendant of the consequences of waiver and non-

waiver. While petitioner provided the waiver form, he

did not provide any document containing the text

prescribed in Form 5. Record Pages 181, 182, Opp.

App. 10b-13b. When this failure was noted, petitioner

argued to the lower courts that providing the Request

for Waiver form required by Rule 4(d)(1)(C) (Form 6)

alleviated his need to provide a separate notice “using

the text prescribed in Form 5” as required by Rule

4(d1)(D). However, Rule 4(d)(1) directs that the

“notice and request must” be in conformity with each

subsection (A) through (G), which includes separate

requirements to provide a notice using the text of

Form 5 and the Form 6 waiver. Fed. R. Civ. P. 4(d)(1)

(emphasis supplied). The rule does not make the two

forms interchangeable. More, the 1993 Advisory

re)

18

Committee notes indicate that the waiver form and

notice form are separate and each must be provided:

the “text of the rule also sets forth the requirements

for a Notice and Request for Waiver sufficient to put

the cost-shifting provision in_ place. These

requirements are illustrated in Forms lAand1B....”

Fed. R. Civ. P. 4 advisory committee note. The

“Notice” and “Request for Waiver” forms referenced as

1A and 1B are now Forms 5 and 6, and the text of the

rule along with the advisory committee notes indicate

that both must be provided by plaintiffs seeking to

invoke the cost-shifting provision of Rule 4(d)(2).

Petitioner’s admitted failure to abide by Rule 4(d)(1)’s

mandatory procedures prohibits any recovery of costs

under Rule 4(d)(2).

Rule 4(d) also requires that the notice and

requested waiver must be provided to the defendant

after the litigation has been commenced by the filing

of the complaint. A defendant is not obligated to waive

service when provided copies of an unfiled complaint

and informed that plaintiff intends to file suit in the

future. Specifically, the notice must “name the court

where the complaint was filed.” Fed. R. Civ. P.

4(d)(1)(B); see also Fed. R. Civ. P. 4(d)(1) (“plaintiff

may notify such a defendant that an action has been

commenced”); Form 5 (“Why are you getting this? A

lawsuit has been filed against you, or the entity you

represent in this court under the number shown

above.”) In this instance, petitioner mailed the

requested waiver on September 15 but did not file the

complaint until September 16. Opp. App. 10b; Pet 6.

Petitioner's Waiver Request Form was incomplete,

leaving blank the area requiring the disclosure of the

cause number because no suit had yet been filed.

Record Page 181, Opp. App. 11b. While in this matter

19

the suit was filed on September 16, Rule 4(d) does not

task the defendant to check the district court docket to

verify whether plaintiff has indeed filed his suit.

Further, Rule 4(d) does not authorize a plaintiff to

seek an anticipatory waiver for a suit that he intends

to file in the future, whether it be one day, three

months, or a year in the future.

Next, Rule 4(d)(1)(A)G) and (d)(1)(G) require that

the notice and request for waiver be in writing,

addressed “to the individual defendant,” and sent by

first-class mail or other reliable means. Petitioner did

not send the waiver request to the Secretary, but,

instead, mailed the waiver to the Attorney General’s

Office and asked that it be delivered to the Secretary.

Record Page 182, Opp. App. 10b. Petitioner did not

accomplish the first task required under Rule 4(d) —

provide the waiver request directly to the defendant.

Finally, even if petitioner’s failures to follow the

mandatory requirements of Rule 4(d)(1) do not directly

prohibit his motion for costs, these failures provided

the Secretary with “good cause” under Rule 4(d)(2) to

refuse waiver without being subject to cost-shifting.

See Fed. R. Civ. P. 4(d)(2) (providing cost-shifting only

when the waiver is refused “without good cause”).

Petitioner cannot benefit from the cost-shifting

provisions of Rule 4(d)(2) when he admittedly failed to

comply with the mandatory procedural requirements

of Rule 4(d)(1). Petitioner cannot prevail in his claim

for expenses without overcoming multiple procedural

defects, yet there is no circuit split or other basis for

this Court to review these defects. Because

petitioner’s motion for expenses fails on alternative

grounds, this case is a singularly poor vehicle to

20

address the issues raised in the petition, even if they

otherwise were grounds for this Court’s review.

C. This is a Poor Vehicle for Review Because

the Record is Undeveloped Regarding the

Method of Service.

The petition asserts that after the Secretary

declined to waive service, petitioner “served the

secretary as an individual under Rule 4(e).” Pet. 8. In

fact, the record does not reflect the manner in which

the Secretary was served as no return of service was

filed by the petitioner. According to the respondent’s

records, the complaint and summons were served upon

the Office of the Attorney General, which would be

consistent with Rule 4(j)(2)(b)’s authorization of

“service in the manner prescribed by that state’s law”

and Miss. R. Civ. P. 4(d)(5)’s authorization of service

upon an officer of the State of Mississippi “by

delivering a copy of the summons and complaint to the

Attorney General.” It is without question that Rule

4(d)’s waiver provision is inapplicable to governmental

entities served by means of Rule 4G). Fed. R. Civ. P.

4(d)(1). There is no evidence in the record to support

petitioner’s claim that service was effected by personal

service on the Secretary under Rule 4(e) and this

Court lacks the necessary factual record to reso!ve that

question. Cf Cardinale v. Loutsiana, 394 U.S. 437.

439 (1969) (dismissing writ when record was revealed

as inadequate to review the question presented).

21

Il. Review of the Fifth Circuit’s Reliance on

Puliman Abstention is Not Warranted.

A. The Issue of Pullman Abstention verses

Question Certification is Moot and the

Relief Articulated in Petitioner’s

Supplemental Brief is Barred by the

Eleventh Amendment.

Because the legislature has now amended Section

23-15-782(2) to cure the exact constitutional defect

alleged to exist by petitioner, both the underlying

cause of action and the more specific question

regarding Pullman abstention is moot. Further, in

light of the amendment, there exists no alleged on-

going violation of federal law so that the newly

fabricated relief sct forth in petitioner’s supplemental

brief is barred by the Eleventh Amendment.

Although the complaint sought relief with respect

to the 2008 presidential election, petitioner persuaded

the Fifth Circuit that the complaint was not moot

because the 5:00 p.m. deadline will be enforced again

in September 2912. Petitioner’s argument became

that the Secretary will close his office at 5:00 p.m. on

the sixtieth day before the November 2012 election,

and because such a 5:00 p.m. deadline is not explicitly

set forth in Section 23-15-785(2), the Secretary would

again be usurping the Mississippi legislature’s

authority under Art. II, § 1, cl. 2 to direct the manner

of appointment of presidentia! clectors. See Pet. 6.

Petitioner’s constitutional challenge rests solely on the

alleged lack of legislative authorization. As the

district court memorialized, “Plaintiffs conceded at

oral argument that closing at 5:00 p.m., 6:00 p.m., or

midnight would all be constitutional under the

ad

Fourteenth Amendment. Thus, Plaintiffs’ argument is

that the Secretary’s alleged violation of Section 23-15-

785(2) is the sole basis for the constitutional claim.”

Opp. App. 8b.

The legislature’s 2010 amendment to Section 23-15-

785(2) explicitly requiring presidential petitions to be

filed by 5:00 p.m. on the sixtieth day before the general

election renders petitioner’s complaint for prospective

relief moot. In light of the amendment, there can be

no dispute that the Secretary’s closure of his office at

5:00 p.m. in September 2012 will be consistent with

the legislature’s direction for the manner of

appointment of presidential electors. ‘There is no

effectual relief available to petitioner regarding the

5:00 p.m. deadline. Without a live controversy to

review, certiorari on the question of Pullman

abstention should be denied. See, e.g., Church of

Scientology of California v. U.S., 506 U.S. 9, 12 (1992)

(Sf an event occurs while a case is pending on appeal

that makes it impossible for the court to grant ‘any

effectual relief whatever’ to a prevailing party, the

appeai must be dismissed” as moot (quoting Mills v.

Green, 159 U.S. 651, 653 (1895)).

Thirty days after the amendment to Section 23-15-

785(2) was signed into law, and on the last business

day before the respondent’s opposition was due,

petitioner filed a supplemental brief belatedly

addressing this clearly fatal development. Petitioner

contends that this matter is not moot based on the

“voluntary cessation” line of cases. Supp. Pet. 2 (citing

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283

(1982)). In City of Mesquite, plaintiffs filed a federal

court constitutional challenge to an _ ordinance

governing amusement establishments. /d. at 288.

23

During the litigation, the city repealed the challenged

ordinance and sought to dismiss the case as moot. Id.

This Court found the matter was not moot because the

city could simply reenact “precisely the same

provision” once the federal challenge was dismissed.

Id. at 289. The possibility that the defendant would

await the dismissal of the complaint and then resume

the same allegedly unconstitutional conduct was a

sufficient reason to find the action not to be moot. /d.

at 289 n.10. But, this Court did recognize that a

voluntary cessation will moot a claim if “subsequent

events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.” Id. The Mississippi legislature’s amendment

mandating a 5:00 p.m. deadline makes it absolutely

clear that the allegedly wrongful behavior of an

“unauthorized” 5:00 p.m. deadline could not reasonably

be expected to recur.

Nonetheless, petitioner purposefully cont:ses a

voluntary cessation of challenged conduct with a

change in the statute to remedy the alleged

constitutional defect. The former may not moot a case,

the latter undoubtably will. The Secretary has not

voluntarily ceased closing his office at 5:00 p.m. in

order to moot the challenge. Instead, the legislature

has now amended state law to unquestionably

authorize the Secretary to enforce a 5:00 p.m.

deadline. In each of the four voluntary cessation cases

cited by petitioner, the defendant abandoned or altered

the challenged behavior. None of those cases

addressed mootness when the alleged constitutional

defect is remedied by legislative changes to the

governing statute. In this matter, the amendment,

without question, remedied the specific and only

alleged constitutional defect challenged by the

24

petitioner: That the Secretary lacked legislative

authorization under Section 23-15-785(2) to close at

5:00 p.m. Opp. App. 8b. Although petitioner appeals

to the rationale of City of Mesquite, he offers no

explanation of how an “unauthorized” 5:00 p.m.

deadline may reoccur in 2012 in light of the

legislature’s explicit authorization of such a deadline.

The controlling precedents here are the numerous

cases holding that when the challenged law is revised

so as to cure the alleged defect, there remains no live

controversy to adjudicate under Article III. See

Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982)

(per curiam) (“substantia[l] amend[ment}” of

challenged regulation mooted controversy over its

validity); Kremens v. Bartley, 431 U.S. 119, 128-130

(1977) (challenge to law permitting parents to commit

juveniles under 18 to mental hospital mooted, with

respect to those over 13, by new legislation permitting

such commitment only of juveniles 13 and under);

Board of Pub. Util. Comm’rs v. Comparita General De

Tabacos De Filipinas, 249 U.S. 425, 426 (1919)

(challenge to statute alleged to constitute unlawful

delegation of legislative power to regulatory board

dismissed after statutory amendment detailed board’s

responsibilities); see also Department of Treasury v.

Galioto, 477 U.S. 556, 559-560 (1986) (equal protection

challenge to federal firearms statute treating certain

felons more favorably than former mental patients

moot after Congress amended statute to eliminate

discrimination). With respect to mootness and

statutory amendments, this Court has instructed that

it will review the “statute as it now stands, not as it

once did.” Hall v. Beals, 396 U.S. 45, 48 (1969)

Because the statute, as amended, clearly authorizes

the Secretary’s 5:00 p.m. deadline, “the case has

20

therefore lost its character as a _ present, live

controversy of the kind that must exist if we are to

avoid advisory opinions on abstract propositions of

law.” See id.

Petitioner’s final supplemental argument asserts

that “even if the statutory change were to moot

Petitioner's challenge to the Secretary’s 5:00 p.m.

deadline,” petitioner is entitled to a generalized

declaratory judgment that “the Secretary does not

have authority under Article II] . . . to regulate

presidential elections.” Supp. Pet. 3. Although

petitioner asserts that this “procedural feature” of his

case is unrelated to the 5:00 p.m. deadline, petitioner

did not identify any act of the Secretary other than

closing at the 5:00 p.m. as the basis for his federal

constitutional claim. See Opp. App. 8b. Petitioner

asserts that the amendment to Section 23-15-785(2)

“does not address the Secretary’s authority” to adopt

future, yet unknown, deadlines that might run afoul of

Article II of the constitution so that petitioner is

entitled to a general judgment declaring that the

Secretary does not have authority to “regulate

presidential clections.”. Supp. Pet. 4. The most

obvious flaw in this argument, of which there are

many, is that the Eleventh Amendment prohibits all

relief against state officials based solely on past acts

and prohibits all prospective relief unless there exists

an on-going violation of federal law. See Edelman uv.

Jordan, 415 U.S. 651, 668 (1974); Green v. Mansour,

474 US. 64, 68-69 (1985). It is critical that, in hght of

the amendment, petitioner cannot alleged an on-going

violation of federal law. The Eleventh Amendment

prohibits relief premised on a past violation of federal

law and petitioner cannot perform an “end run” around

this clear prohibition by seeking “notice relief” or other

26

forms of relief seeking to “deter[]” possible future

misconduct or to instruct state officials on federal law.

See Green, 474 U.S. at 68-69, 73.

Finally, even if the entire suit is not moot, the

question of whether Pullman abstention’ or

certification was appropriate is unquestionably moot.

The clarification to Section 23-15-785(2) makes state

law unmistakably clear so that neither Pullman

abstention nor certification is now appropriate. Both

certification and Pullman abstention require the

existence of an “uncertain question of state law,” such

as an ambiguous statute. See Hawai Housing

Authority v. Midkiff, 467 U.S. 229, 236 (1984) (noting

Pullman abstention is limited to uncertain questions

of state law); City of Houston, Tex. v. Hill, 482 U.S.

451, 470 (1987) (declining to certify question when

statute was not ambiguous). The amendment to

Section 23-15-785(2) removes any doubt as to the

deadline by which presidential qualifying petitions

must be filed so that neither Pullman abstention nor

certification is appropriate. At this point, review of the

Fifth Circuit’s decision regarding Pullman abstention

would be an advisory opinion.

B. If Not Moot, the Fifth Circuit’s Abstention

Under Pullman was a Factually Dependent

Decision Unsuitable for Review.

The traditional concerns regarding Pullman

abstention are absent from this unique litigation. This

Court has noted a concern that Pullman may “entaill)

a full round of litigation in the state court system

before any resumption of proceedings in federal court.”

Arizonans for Official English v. Arizona, 520 U.S. 43,

76 (1997). In this matter, such would not be the case.

27

Petitioner’s federal claim is premised on _ the

Secretary's alleged violation of state statutory law by

closing at 5:00 p.m. Pet. 6. Thus, if the petitioner

prevailed in state court on his allegation that the

Secretary acted in violation of state law, the state

court would grant him complete relief by directing the

Secretary to act in conformity with state law. Indeed,

an order requiring compliance with state law is not

available in federal court. See Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“it is

difficult to think of a greater intrusion on state

sovereignty than when a federal court instructs state

officials on how to conform their conduct to state law.

Such a result conflicts directly with the principles of

federalism that underlie the Eleventh Amendment.”)

As a practical matter, there would be no reason to

return to federal court as the federal court could grant

no additional relief. Moreover, because any future

alleged injury to petitioner would not occur until the

next presidential qualifying deadline in September

2012, there was ample time for the state court to

resolve this matter of state law. The federal litigation

itself was in a nascent stage, having not progressed

beyond the filing of an answer and a denial of the

preliminary injunction motion. Pullman abstention fit

the unique context of this litigation and the Fifth

Circuit’s invocation of Pullman abstention was a

fact-bound application of a legal standard generally

considered inappropriate for review by this Court. See,

e.g., Packwood v. Senate Select Comm. on Ethics, 510

U.S. 1319, 1320-21 (1994); Jzumi Seimitsu Kogyo

Kabushiki Kaisha v. U.S. Phillips Cerp., 510 U.S. 27,

34 (1993).

28

Conclusion

For the reasons stated above, the petition for a writ

of certiorari should be denied.

Respectfully Submitted

Harold Edward Pizzetta III

Counsel of Record

Office of the Attorney General

450 High Street, P.O. Box 220

Jackson, MS 39205-0220

(601) 359-3680

HPIZZ@avgo.state.ms.us

Counsel for Respondent

APPENDIX

1

APPENDIX

TABLE OF CONTENTS

Appendix A: Mississippi Legislature, Regular

Session 2010 Senate Bill No.

Oe 60. bea eee lb

Appendix B: Order Denying Preliminary

Injunction, in The United States

Court for the Southern District of

Mississippi, filed September 29,

RT ck oe eee Pan, 5b

Appendix C: Letter and Waiver of Service. 10b

APPENDIX A

MISSISSIPPI LEGISLATURE

REGULAR SESSION 2010

By: Senator(s) Burton To: Elections

SENATE BILL NO. 3058

AN ACT TQ AMEND SECTION 23-15-785,

MISSISSIPPI CODE OF 1972, TO REQUIRE THAT

CERTIFICATES OF NOMINATION AND

NOMINATING PETITIONS FOR CANDIDATES FOR

PRESIDENT AND VICE PRESIDENT OF THE

UNITED STATES MUST BE FILED IN THE OFFICE

OF THE SECRETARY OF STATE BY NOT LATER

THAN 5:00 P.M. 60 DAYS PRIOR TO THE

ELECTION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF

THE STATE OF MISSISSIPPI:

SECTION 1. Section 23-15-785, Mississippi Code of

1972, is amended as follows

23-15-785. (1) When presidential electors are to be

chosen, the Secretary of State of Mississippi shall

certify to the circuit clerks of the several counties the

names of all candidates for President and Vice

President who are nominated by any national

convention or other like assembly of any political party

2b

or by written petition signed by at least one thousand

(1,000) qualified voters of this state.

(2) The certificate of nomination by a political party

convention must be signed by the presiding officer and

secretary of the convention and by the chairman of the

state executive committee of the political party making

the nomination. Any nominating petition, to be valid,

must contain the signatures as well as the addresses

of the petitioners. The certificates and petitions must

be filed with the State Board of Election

Commissioners by filing them in the Office of the

Secretary of State by 5:00 p.m. not Jess than sixty (60)

days previous to the day of the election.

(3) Each certificate of nomination and nominating

petition must be accompanicd by a list of the names

and addresses of persons, who shall be qualified voters

of this state, equal in number to the number of

presidential electors to be chosen. Each person so

listed shall execute the following statement which

shall be attached to the certificate or petition when it

is filed with the State Board of Election

Commissioners: “I do hereby consent and do hereby

ayree to serve as elector for President and Vice

President of the United States, if elected to that

position, and do hereby agree that, if so elected, I shall

cast my ballot as such for for President and

__. for Vice President of the United States”

(inserting in said blank spaces the respective names of

the persons named as nominees for said respective

offices in the certificate to which this statement is

attached).

(4) The State Board of Election Commissioners and

any other official charged with the preparation of

3b

official ballots shall place on such official ballots the

words “PRESIDENTIAL ELECTORS FOR (here insert

the name of the candidate for President, the word

‘AND’ and the name of the candidate for Vice

President)” in lieu of placing the names of such

presidential electors on the official ballots, and a vote

cast therefor shall be counted and shall be in all

respects effective as a vote for each of the presidential

electors representing those candidates for President

and Vice President of the United States. In the case of

unpledged electors, the State Board of Election

Commissioners and any other official charged with the

preparation of official ballots shall place on such

official] ballots the words “UNPLEDGED ELECTOR(S)

(here insert the name(s) of individual unpledged

elector(s) if placed upon the ballot based upon a

petition granted in the manner provided by law stating

the individual name(s) of the elector(s) rather than a

slate of eiectors).”

SECTION 2. The Attorney General of the State

of Mississippi shall submit this act, immediately upon

approval by the Governor, or upon approval by the

Legislature subsequent to a veto, to the Attorney

General of the United States or to the United States

District Court for the District of Columbia in

accordance with the provisions of the Voting Rights

Act of 1965, as amended and extended.

SECTION 3. This act shall take effect and be in

force from and after the date it is effectuated under

Section 5 of the Voting Rights Act of 1965, as amended

and extended.

S. B. No. 3058

10/SS26/R886

4b

ST: Certificates of nomination and nominating

petitions for President and V.P.; must be filed not

later than 5:00 p.m. on the deadline day.

p '

5b

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT

OF MISSISSIPPI

JACKSON DIVISION

CIVIL ACTION NO. 3:08cv573 TSL-JCS

[Filed September 29, 2008]

BRIAN MOORE, STEWART

ALEXANDER and THE NATURAL

LAW PARTY OF MISSISSIPPI

PLAINTIFFS

DELBERT HOSEMANN, in his official

capacity as Mississippi Secretary of State

DEFENDANT

ORDER DENYING PRELIMINARY

INJUNCTION

This matter is before the Court on Plaintiffs’

Motion for Preliminary Injunction. The issue has been

fully briefed and was the subject of a hearing at which

testimony was provided by Plaintiff Brian Moore and

argument was submitted by counsel. As more fully set

fortl in the opinion rendered from the bench, this

6b

Court finds that the motion is not well taken and

should be denied.

It is the Plaintiffs’ burden to prove each of the four

traditional elements in order to be entitled to a

preliminary injunction: (1) a substantial] likelihood of

success on the merits; (2) a substantial threat of

irreparable injury; (3) that the threatened injury

outweighs the threatened harm to the non-movant;

and (4) that the injunction will not disserve the public

interest. DSC Communications Corp. v. DGI

Technologies, Inc., 81 F.3d 597, 600 (5th Cir. 1996). As

this Court finds that Plaintiffs have not established a

substantial likelihood of success on the merits, a

preliminary injunction cannot be issued.

Mississippi Code Section 23-15-785(2) requires that

Plaintiffs’ qualifying documentation for inclusion as

presidential and vice-presidential candidates must be

filed with the office of the Secretary of State not less

than sixty (60) days prior to the day of the general

election. All parties agree that September 5, 2008, was

the last day on which Plaintiffs could filed the

documentaticn with the Secretary of State. Although

Section 23-15-785(2) does specify a time of day by

which the documents must be filed, the Secretary of

State closed his office at the regular hour of 5:00 p.m.

on September 5. Shortly after 5 p.m., taxicab drivers

hired by Plaintiffs arrived at the Secretary’s offices to

file but found the doors locked. The drivers left the

documents on the front step of the office.

Mr. Moore testified that prior to September 5 he

was aware of the 5:00 p.m. deadline. Shortly before

9:00 p.m., Mr. Moore testified that he telephoned the

Secretary of State’s office to inform them that his

ry

ib

documents would not arrive by 5:00 p.m. and inquired

about whether a late filing would be accepted. Mr.

Moore states that he was informed that a late filing

would be accepted. By affidavit, the relevant official at

the Secretary of State’s office denied telling Mr. Moore

that a late filing would be accepted.

For purposes of resolving the motion for

preliminary injunction, this Court finds that Plaintiffs

have failed to state a cause of action under the

Fourteenth Amendment or Article II of the

Constitution. The Court further finds that Plaintiffs

have failed to state a claim for constitutional estoppel

and that the Court is unlikely to exercise supplemental

jurisdiction over Plaintiffs’ purely state law claims in

light of the legal deficiencies in the federal law claims.

First, Plaintiffs assert that the Secretary of State’s

decision to close his office at the traditional hour of

5:00 p.m. when such a deadline is not explicitly set for

in Section 23-15-785(2) was a usurpation of the

Mississippi Legislature’s authority under Art. II, § 1,

cl. 2 to direct the manner of appointment for

presidential electors. The authorities cited by

Plaintiffs, namely Bush v. Gore, 531 U.S. 98 (2000),

and Libertarian Party of Ohio v. Brunner, — F .Supp.2d

~, 2008 WL 2795576 (S.D.Ohio July 17, 2008), provide,

at best, that federal courts will review state actions

that are a significant departure from, or go beyond a

fair reading of, state election laws. In this matter, the

Secretary of State’s interpretation of state election law

and his determination to close his office at the

traditional time of 5:00 p.m. is reasonable and cannot

be said to be inconsistent with the state’s election

Statutes.

8b

Next, Plaintiffs assert that Secretary of State’s

decision to close at 5:00 p.m. violates the substantive

and procedural guarantees of the Fourteenth

Amendment. With respect to substantive due process,

Plaintiffs conceded at oral argument that closing at

5:00 p.m., 6:00 p.m., or midnight would all be

constitutional under the Fourteenth Amendment.

Thus, Plaintiffs’ argument is that the Secretary’s

alleged violation of Section 23-15-785(2) is the sole

basis for the constitutional claim. However, the mere

violation of a state election law standing alone is not a

violation of the Fourteenth Amendment. Snowden v.

Hughes, 321 U.S. 1, 11 (1944); Duncan v. Poythress,

657 F.2d 691, 699 -700 (5th Cir. 1981). Not only does

that Court find the decision to close at 5:00 p.m. to be

consistent with state law, even if it was contrary to the

state law, it would not constitute one of the “rare, but

serious, violations of state election laws that

undermine the basic fairness and integrity of the

democratic system” warranting relief under the

Fourteenth Amendment. See Duncan, 657 F.2d at 699-

700. Further, as Mr. Moore testified that he was aware

of the 5:00 p.m. deadline well prior to September 5,

there is no viable claim premised on procedural due

process.

Third, Plaintiffs assert a claim of constitutional

estoppel based on the argument that the Secretary of

State is estopped from refusing the qualifying

documents because the Secretary’s office allegedly

stated to Mr. Moore that a late filing would be

accepted. The Court finds that estoppel cases cited by

the Plaintiff to be wholly inapplicable to the facts of

this matter. Further, Mr. Moore’s testimony revealed

that there was no detrimental reliance on the alleged

assurance. It was not until after Mr. Moore realized

Ob

that his documentation would not be filed by 5:00 p.m.

that the alleged statement was made by the

Secretary's office. Thus, Mr. Moore did not change his

course of conduct to his detriment based on that

alleged assurance.

Finally, this Court is doubtful that it will retain

Plaintiffs’ state law related claims once disposing of

the constitutional allegations. Further, the Eleventh

Amendment does not allow for any relief, prospective

or otherwise, to be granted in federal court on solely on

the basis of state law violations. Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).

Plaintiffs’ state law claims properly belong in state

court.

Thus, finding that the Plaintiffs have failed to

demonstrate a likelihood of success on the merits, the

motion for preliminary injunction is hereby DENIED.

So ORDERED, this the 29" day of September, 2008

/s/Tom 8S. Lee |

UNITED STATES DISTRICT JUDGE

303 E. Broad Street

Columbus, OH 43215

September 15, 2008

Harold Pizetta

Mississippi Attorney General’s Office

Walter Sillers Building

550 High Street, Suite 1200

Jackson, MS 39201

Dear Mr. Pizzetta.

Enclosed are the pleadings we discussed on the

phone today. I also have sent you electronic copies.

I have also enclosed two Waivers of Service and a

return envelope. If you could have the Secretary sign

one and mail to me in the envelope, that would save

the cost of Service per the Federal Rules.

Should the Secretary choose not to Waive, please

let me know and [| will arrange Service.

Sincerely,

Mark R. Brown

Attorney at Law

llb

AO 399 (Rev. 10/95)

WAIVER OF SERVICE OF SUMMONS

TO: Mark R. Brown

(NAME OF PLAINTIFF’S ATTORNEY OR

UNREPRESENTED PLAINTIFF)

I, Delbert Hosemann _, acknowledge

(DEFENDANT NAME)

receipt of your request that I waive service of

summons in the action of Moore, et.al. v. Hosemann,

(CAPTION OF ACTION)

which iscase number. ——s—“‘“‘“‘i‘ititsS

(DOCKET NUMBER)

in the United States District Court for the Souther

District of _ Mississippi __.

I have also received a copy of the complaint in the

action, two copies of this instrument, and a means by

which I can return the signed waiver to you without

cost to me.

[ agree to save the cost of service of a summons and

an additional copy of the complaint in this lawsuit by

not requiring that I (or the entity on whose behalf I am

acting) be served with judicial process in the manner

provided by Rule 4

I (or the entity on whose behalf | am acting) will

retain all defenses or objections to the lawsuit or to the

jurisdiction or venue of the court except for objections

12b

based on a defect in the summons or in the service of

the summons

I understand that a judgment may be entered

against me (or the party on whose behalf I am acting) if

an answer or motion under Rule 12 is not served upon

you within 60 days after September 15, 2008 ;

(DATE REQUEST WAS SENT

or within 90 days after that date if the request was

sent outside the United States

(DATE) (SIGNATURE) ©

Printed/Typed Name:

As of

(TITLE) (CORPORATE DEFENDANT)

Duty to Avoid Unnecessary Costs of

Service of Summons

Rule 4 of the Federal Rules of Civil Procedure

requires certain parties to cooperate in saving

unnecessary costs of service of the summons and

complaint. A defendant located in the United States

who, after being notified of an action and asked by a

plaintiff located in the United States to waive service

of summons, fails to do so will be required to bear the

cost of such service unless good cause be shown for its

failure to sign and return the waiver

It is not good cause for a failure to waive service

that a party believes that the complaint is unfounded,

or that the action has been brought in an improper

13b

place or in a court that lacks jurisdiction over the

subject matter of the action or over its person or

property. A party who waives service of the summons

retains all defenses and objections (except any relating

to the summons or to the service of the summons), and

may later object to the jurisdiction of the court or to

the place where the action has been brought.

A defendant who waives service must within the

time specified on the waiver form serve on the

plaintiffs attorney (or unrepresented plaintiff) a

response to the complaint and must also file a signed

copy of the response with the court. If the answer or

motion is not served within this time, a default

judgment may be taken against that defendant. By

waiving service, a defendant is allowed more time to

answer than if the summons had been actually served

when the request for waiver of service was received.