Amicus Curiae Brief — John L. Sullivan, Tax Commissioner of the State of Connecticut v. United States

AWOTICH, FILED:. ‘ SUPREME court. Ls

' MAR i 7 cane

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a Before the tea

Supreme Court of the © United States

_ JOHN L. SULLIVAN; TAX COMMISSIONER OF THE

|, > STATE OF CONNECTICUT, ET AL, .

| ip trae Avvellonts,

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UNITED STATES OF: ‘AMERICA,

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3 “Oi Appeal From the United Stats Qourt of Appeals

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MOTION FOR LEAVE TO FILE BRIEF AMICUS

OURIAE AND BRIEF OF AMICUS OCURIAE .,.

Repencaanic FISSEL, IN hata OF APPELLEE

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Bensamin M. Wat; ;

| “Of Foutxs, Wat, & Wurrrovs,, ©

608 Executive Building, |

Omaha, Nebraska, 68102,

Pi ranihecors Pe Stanley —

- ‘Tape & COCKLE PRINTING CO., 1822 St.qMary’s Ave., Omaha

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INDEX .

Pages

Motion foi Leave to File Brief Amicus Curibe. i

Brief of “Amicus Curiae, Stanley Fissel, in ‘Support...

"Of: Appellee . bigentcee z

Inferest of Amicus Curiae - mininn i.

Argument

Proof, of Servite’ aia

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Conclusion - canes — 6

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Appendix Bi — Es —

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"AUTHORITIES CITED | ee , |

Sec. 514 of the Soldiers’ and Sailors Civil Relief Act_3, 4,5

The Nebraska Revenue Act of 1967, § 7 7. -2704, BR. Ss:

— 1967 (App. 1) | are oe 4,5,8

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| ai Before wn a

Supreme Court of the United States.

October Term, 1968

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JOHN L. SULLIVAN, TAX COMMISSIONER OF THE

STATE OF CONNECTICUT, ET AL.,

- ppellants, ae

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aA , VS:

UNITED STATES OF AMERICA,

eo “Appellee.

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. On Appeal From the United States Court of Appeals

for the Second |

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‘MOTION FOR LEAVE TO FILE BRIEF AMICU s

_ QURIAE AND BRIEF OF. AMIOUS CURIAE

STANLEY FISSEI,, - SUPPORT OF APPELLEE

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MOTION FOR LEAVE TO FILE BRIEF- me :

Stanley Fissel hereby respectfully moves the Court .

for leave to file a brief amicus. curiae in this case in sup-

part of the appellee as provided in Rule 42 of the Rules

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of this Court. The consent of the Solicitor General has.

been obtained. The consent of the appellants was re-

quested, but, refused.

Stanley. Fissel is an Air Force Sergeant o on active duty -

stationed in: the State of Nebraska. He is a citizen and

domicilliary of the Commonwealth of. Pennsylvania. Ser--

geant Fissel.is the plaintiff in an action now pending in * ~

. the District Court of Lancaster County, Nebraska, where-

in Murrell B. McNeil, Tax Commissioner of the State of

) Nebraska, and Wayne Swanson,’ Treasurer of the State of

a Nebraska, aré defendants. The action seeks to restrain

the collection from plaintiff: and all other, servicemen sim- -

ilarly situated of the sales and use tax imposed by the

_ Nebraska Revenue Act of 1967 (Secs, 77-2701 to 77-27,135, °

R. R. Supp. 1967). Sergeant Fissel is also an intervenor

_ in an action now pending in the District Court of Sarpy

County, Nebraska, wiierein Lt. Col. John P. Smith, U. S.

’ A. F. for himself and for all other servicémey similarly

situated is plaintiff, James A. Kenny, Treasurer of Sarpy

County, i defendant, and Murrell B. MeNeil, Tax Com-

‘missioner, is also an intervenor. The Sarpy. County ac-

tion seeks generally the same relief as Sgt. Fissel’s. Lan-

caster County action; but limited to’ the sales and use tax

~ imposed by the above-mentioned sections on motor ve-

hicles and collected ‘by. the Sarpy County Treasurer. Offutt

’ Air Force ‘Base ‘is located ‘in Sarpy County and most of

the Base complement. reside in that county. Both of —

these state District Court actions are in the pleadings

stage, with further action therein postponed pending a de- —

cision by this Court herein. As plaintiff for his class,

Sgt. Fissel represents 11,961 officers and enlisted men —

a

stationed at Offutt Air Force Base with an annual payroll —

‘of $83,521,227,' 361 Navy and Marine officers and enlisted

_ men stationed at’ Fort Omaha, with an annual payroll of.

_ $2,753,345.00,? and an as yet undetermined number of

_Army officers and enlisted men on recruiting fluty in the

State of Nebrask or participating in ‘‘Opefation Boot-

strap’’ at the University of Nebraska at Omaha.

The appelied will presumably concentrate on the in-*

‘tergovernmental .relationshipsand’ the legislative ques-

tions involved. In the brief tendered herewith, Sgt. Fissel

treats the questions involved -from the point of view of

the serviceman who is, in fact, paying the taxes imposed.

STANLEY FISSEL

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oy eee 4! By Benjamin M. Wall

ee of Foulks, Wall & Wintroub

aes 608 Executive Building ——

Omaha, Nebraska, 68102,

| His Attorneys. -

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4. Richard V. Slettin, Deputy Chief Accounting & Finance Officer,

| : Offutt AFB, testimony and exhibits on preliminary hearing, Lan-

+ easter County District Court, 9/16/68.. Bay enn

2. Exhibits A, B & C to deposition of Commander William C. Blaney,

USN, Bureau of “Naval Persor™? taken 11/20/68. .

Before the

Supreme Court of the United States

Se in

—

October Term, 1968

JOHN L. SULLIVAN, TAX COMMISSIONER OF THE

STATE OF CONNECTICUT, ET AL,

Appellants,

. Vs.

- UNITED STATES OF AMERICA,

Appellee.

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On apy Freer the United Statie Court of ‘Appeals

for - Second Circuit |

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BRIEF OF AMICUS CURIAE, STANLEY FISSEL, .

IN SUPPORT OF APPELLEE

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| Bensamin M. Watt, — Sy | :

_ Of Foutks, War & Wairrovs, . °

608 Executive Building,

Oniaha, Nebraska, 68102,

Attorneys for Stanley Fissel.

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INTEREST OF AMICUS CURIAE

‘ecaesik Stanley Fissel is in the same situation that

mee 2 Schuman, U.S. N., was in the. District Court herein—

a non-resident serviceman. paying taxes in a state where

he would not be located except for Federal action. While

“Lt. Schuman purchased a boat in the State of Connecti-

cut, Sgt. Fissel bought automobiles in the State of Ne-

braska. Upon attempting to license these automobiles in —

. the State of Nebraska, whereshe was stationed pursuant

to military orders, he was advised that he must pay the

_ Nebraska Sales Tax before the license would be granted.

A check carrying the notation ‘Paid under protest’’ was

refused by the Sarpy County Treasurer when tendeted in

payment of the tax assessed. Thereafter, as-explained in

- the motion for leave to file this brief, he filed actions

secking to restrain the Nebraska officials. concerned with ,

collecting the sales tax from collecting the tax from him

or persons similarly sifu@ted. ‘These actions are now

_, pending ‘the determination of this court “in this matter.

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> ARGUMENT

At: the. ime of the preliminary hearing’ in : Saaiadink

County, DiStrict Court, Sgt. Fissel, then an Airman First

Class, had a basic pay rate of $138.75 per month, plus —

$60.00 Class Q allotment and.a rations allowance of $39.60 ‘

per month. | upplemented his income by approxi-

mately $100. 00 per month by working part time as. a

mechanic. Since that time he has received an increase

in basic pay of $50. 00 per month due to longevity and an

i ee additional $50.00 per tnonth by reason of. his promotion.

ie At the time of the hearing, Sgt. Fissel’s wife was work-

_ ing as a secretary earning $420.00 per month. His hous-

wae ing costs $68.00 per month for payments on his house

Pe trailer which he pur¢hased in the State of Nebraska, 0%

; i 00 per month for lot. rental and approximately $18.00 ©:

a7: _per month. for utilities. He has traded cars-twice since

. the Nebraska Sales. and Use Tax was imposed, . paying

_ $26.00 in sales taxes on one Sil ge and $49.00 on the

other.!. The Nebré ka Salés and Use Tax was imposed

at the 2% for the period June 1, 1967, through -

‘January 1, 1969, when it was cut to 2%. The Nebraska -

Sales and Use Tax was generating revenue’ for the State

of Nebraska at the rate of $65,000,000.00 per year, as op- ,

S Baek * * posed fo estimates and budgeted appropriations of

ates $55,000,000.00 per -year, or an amount $20,000,000.00 _

4 _ in excess of the biennial budget. Servicemen at Offutt ~

- would contribute about $683,000.00 annually to this total

eollected.2 The State ‘of Nebraska will thus suffer no -

financial hardship if it is restrained from collecting this

tax from servicemen within its jurisdiction.

~ Appellant urges that ‘a reading. of Sec. 514 of the

‘Soldiers and Sailors Civil Relief Act to apply to sales

* . and use taxes would give a result that is’. absurd, inequi-__

‘table and ‘unfair, and fiscally disruptive. This amicus

_ feels that such a reading results in a conclusion which is -

ty rad i Fissel, Lancaster County District Court, Sept.

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2. Deposition of Murrell B. McNeil, taken 9/12/ 68.

-, 8. Richard V. Slettin testimony, Lanc: ° ter County District Court,

9/ 16/68. This is exclusive of “on hus” purchases.

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logical, enpitsile, ‘fair: and no mipre disruptive of fiscal

affairs and the nerves of retailers generally than other

state adininistrative reporting requirements. The object ..

of See. 514 7 beneficence, the average serviceman, is no-

toriously underpaid and notoriously subject. to the exigen-

cies of the Federal service ir determining where he would

. reside. He is peculiarly needful of such economic ad-

" vantages as Congress may be able to give him. The sales —

and use fax is particularly well known as a regressive tax. ©

Seventy-five Dollars ($75. 00) in. automobile sales. taxes to:

an Air Force. accounting clerk earning $238.35 monthly i in,

the Air Force is clearly far more important to him than

the:same amount which might be paid by a civilian pliimb-

er or carpenter or any other blue collar worker earning

in excess of $10,000.00 annually.

The Nebraska Revenue. in of 1967 in §77- 2704,

f R. S. Supp. 1967 (App. 1) contains 13 separate general _

headings for exemptions from the tax. The monthly re- ii:

porting form prescribed by the State Tax Commissioner.

for retailers contains seven lines for olisting- exempt sales

or deductions : “Sales to Dealers”’, ‘“‘Bad Pebts’’, “De-

- liveries outside state’, “Sales j in excess of, $100 to exempt

organizations”, ‘'Peed, seed, agricultural chemicals, medi- —

eine and prosthetic devices’’, ‘‘Sales of motor vehiclés’’,'

and ‘‘Other allowable deductions’’. 3 Military personnel

carry cards readily identifying them as<such. - The-addi-

tion of another ‘line to the form, or the use of the last ~

i. The motor vehicle sales tax in Nebraska is collected by the County

a not the dealer. oe

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general line 1 now Mibiiies is a simple and direct way to

* solve any possible administrative reporting problem.

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A plain reading of Sec. 514 shows Congress’to have

.. been’ zealous in protecting the serviceman who-may find

himself .‘ ‘in interstateeommerce’? due to the needs of

the service. See. 514 (1) provides that a serviceman sh

not. be deemed to have lost a residence or doniicile in a-.

state by reason of absence therefrom die: to - military 2

. orders. Sgt. Fissel must, therefore, be considered still a z

Pennsylvania resident’ despite physical presence in Ne-

braska, and salés to him must likewise be considered to

have been ‘made to him as if he were in Pennsylvania.

The Nebraska Act -(§ 77-2704 (1) (h) )- exempts sales of

property shipped outside the state. The practical effect

- of Sec. 514 is that Sgt. Fissel earries a part of Pennsyl-

vania with him for interstate tax purposes wherever he

*may go, just as in international law our battleships

embassies carry ‘a part of The United States with them. ;

This conclusion is implicit in the wording of See. 514—

BS the purposes of taxation in respect of any person

' The appellant attempts ‘to rely on cases distin-

ae income taxes, property taxes and privilege taxes,

with the concomitant ‘theoretical difference in ‘*impact’’

of the tax.’ No mattér what you call it or how you dis- —

tinguish it, the. impact of the tax is on the serviceman, }

and Congress has declared that that ““person’’ shall not

be considered to ke outside his home state for purposes

of the imposition of taxes by another -state. ‘ ’

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A reflective consideration of the problems waaie to

be cast. by” the appellant shows that.such problems are

merely shadows without substance. The text of Sec. 514

of the Soldiers and Sailors Civil Relief, Act clearly shows

that it was the person of the serviceman, ‘shuttled about -

. from state to apie pursuant to military necéssities, and

that serviceman’s pocketbook that Congress was concerned

bout and gave protection to in the act. The Congress :

“clearly was not concerned with the name for the tax that

_ ingenuity could provide, or sterile, theoretical distinctions

‘as to impact’? or ‘‘incidence”’ of the tax. The decision.

of the Court of Appeals for the Second Cireutt 1 is clearly

correct-and should be affirmed. :

i STANLEY FISSEL

ST

By Benjamin M. Wail

Of Foulks, Wall & Wintroub

ae - + 608 Executive Building,

ee | -e | Oniaha, Nebrasks, 68102,

His Attorneys

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_ Fissel as amicus curiae herein, and a. member’ of the Bar

__ of the foregoing * “Motion for Leave to’ File Brief Amicus

' Curiae and Brief Amicus Curiae of Stanley Fissel’’ on the

"urging poversal herein, by mailing a copy hereof. in a

PROOF OF ‘SERVICE "a op

I, Benjamin M. Wall, oe of the attorneys for Stanley

of the Supreme Court of The United States, hereby cer-

tify that. on the : - Gay of March, 1969, I served copies —

several parties thereto and on the several amici curiae

properly addressed envelope, first class postage prepaid,

directed to the respective counsel of record for*tach said

party and amichs curiae.

?

* Benjamin M. Wall

' APPENDIX

77-2904. Sales ind use tax; exemptions from act. (1)

‘There are exempted from tlie computation of the amount

of sales and use taxes imposed by sections 77-2701 to 77- -

27,135 the gross réceipts from the sale, lease. or rental |

of and the storage, use, or other consumptiondn this state -

- of the. following: my ‘cet -

Seal

(a) Tangible personal property ‘the anes | receipts

from the sale, lease, or rental of which, or the storage,

use,” or other consumption of which this stat is pro-

hibited from. taxing under the Constitution or laws of the

United States or. under the Constitution of this state;

'(b) (i) Aircraft fuel as defined under the provisions

sx Chapter 3, article 1; i

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} (ii) Minerals, oil,: and gas as defined under the pro-

_ Visions of Chapter’ 57; and

| (iii) Motor vehicle fuéls'as defined, taxed or ex.

_ empted under the provisions of Chapter 66, article 4, and

special fuels as defined, taxed or exempted for use on -the

highways under the provisions of Chapter 66, article 6;

(ec). Tangible personal property ‘used for the per- .

_° formance of a written’ contract entered into prior to June

1, 1967, except as provided in subdivision (1) (g) of sec-

tion 77-2708; _ writ :

. (d) Any newspaper regularly issued at average in-

tervals’not exeeeding one week; Provided, that such news-

. paper contains matters of general interest and reports of

current events ;

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“s(e). Leased tangible perepbal property sold to a

lessee of that tangible personal property. ‘under an agree-"

- ment whereby certain rental payments are credited against

the purchase price of that tangible personal property; Pro-

vided, that this exemption shall not exceed thejgmount for.

which the lessor has collected and ses tax on such rental

payments ; .

(f) Prescription medicines when siaetieal: and dis-

pensed for human use by a person licensed under the

provisions of Chapter 71, arco - and prosthetic de- .

vices ;

( g) ( i) Meals eateck products, i in renee soit drinks

and. candy, for human consumption served by public or

. private schools, school districts, student organizations, or

parent-teacher associations pursuant to an agreement with —

the proper school authorities, in an elementary or second:

ary school or at any institution of higher education Ppurlig

or private, during the regular school. day or at an approved

function of any such school or institution, but such’ exemp-

_ tion shall not apply to sales at any facility or function |

‘which is ‘open to the general public, except that conces-

‘ sion sales byielementary. and anny: schools, public o:.

private, shall be exempt;

(ii) - Meals and food products, viii soft drinks .

; and candy, for human consumption when sold by a church

at a function of such church; and.

(iii) Meals and food products, babble soft. drinks .

and candy, for human consumption when served to pa-..

ah tients and inmates. of hospitals: and other institutions li-

censed by the state forthe care of human beings ;

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(h). Tangible personal tation which is shipped to

a point outside this state pursuant to the contract of sale

by delivery by the retailer to such point by means of

_ facilities operated by the retailer, delivery by the retailer

mn to a carrier for shipment to a, consignee at such point, de- —

or, nt by the retailer to the United States post office for

delivery outside this state, or delivery by the retailer to a

customs broker or forwarding agent for shipment outside.

this state. This shall include ‘the gross receipts from

‘sales of tangible personal property to a common carrier,

shipped by the seller via the purchasing carrier under a

. pill of lading, whether the freight is paid in advance or —

the shipment is made freight charges collect, to a point

outside this state and the property is actually transported.

; to the out-of-state destination for use by the carrier in

the conduct of its business as a common. carrier ;

(i)- The gross receipts from the ‘abe, lease, or rental

- of. any tangible personal property to, or the storage, use,

or other consumption of tangible personal property by any

organization created exclusively for religious purposes,

_ any nonprofit organization. providing services exclusively

to the blind, any school, public or private, any educational

institution established under the provisions of Chapter

14, 79, or 85, any private. ecolleg2 or university, any li- .

censed hospital, or any orphanage, or any licensed child

_ placement agency. The institutions named in this sub-

division shall pay the sales or use tax for any transaction

when the consideration therefor is one hundred dollars or

less but shall be entitled to a refund of any amount so

paid upon the filing of a‘claim for refund in the manner

provided in subdivision (1) (i) of section 77-2702. Any

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person purchasing, storing, using, or otherwise consum-

” ing tangible personal property in the performance of any

‘ construction, improvement, or repair by or for any such

° institution orgauized not for profit, which tangible per-

sonal ‘property is incorporated into a structure and _be-

comes the’ property of the owner of the institution, shall

pay any applicable sales or use.tax thereon but shall be

entitled to a refund of the amount of taxes so paid. Such

refund shall be. made in- the manner provided. pursuant to .

Subdivision ©) (i), of section’ 77-2703;

(3) The gross: receipts from: the sale of tangible

personal property when sold through coin operated vend.

ing machines below a sum of fifteen cents;

- (k) ‘alee and purchases of electricity, coal, gas, fuel

oil, diesel fuel, tractor fuel; propane, gasoline and oil, and ©

coke for use in processing, manufacturing, mining, refin-

ing, irrigation, farming, building construction,’ telegraph,

telephone and radio communication, street, and railroad’

transportation services and all business, commercial and

industrial uses ;

(1) The use of coin-operated machines used er laun-

me ard cleaning; and

(m) Purchases by the state or by any county, town- |

ship, city, or village, for use ina governmental capacity, \

when the consideration in any “Single transaction i ls in ex-

cess of one hundred dollars. ,

(2) The storage, use, or other consumption in this

state. of tangible personal property, the gross receipts .

from the sale, lease, or rental of-which are required to be

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included in the measure of the sales tax and on which the

sales tax has been paid, is exempted from the use tax.

(3) The use tax imposed in sections 1- 2701. to 77- a

\ 27, 135 shall not- apply to:

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(a) < The use, in this state, of as and replace-.

ment. parts which are acquired outside this state and

‘which are moved into this state.for use directly in the re-

pair and maintenance or manufacture of motor vehicles,

watercraft, railroad rolling stock, or aircraft engaged as ~

common carriers of persons or property; and.

'(b) The storage, use, or consumption of tangible

personal property which is acquired outside this state, the

_ sale, lease, or rental or ‘the ‘storage, use, or consumption

of wliich property would be exempt from the sales or use

eo tax were it purchased within this staté.

- (4) - If any pefson, who causes tangible » enaiiea

property to be brought into this state, has already paid

a tax in another state in respect to, the sale or use of

such property in an amount less than the tax imposed by

this section, the provision of this section shall apply, but

A rate measured by the difference only between the

rite *hePein fixed and the rate by which the previous tax

on: <the sale or use was computed. If such tax imposed

and paid in such other state is equal to or more than the

tax imposed herein, then no use tax shall be due in this

state on such personal property;. Provided, that such other —

state, territory. or possession grants a reciprocal exclu-

sion or exemption to similar transactions in this state.

(5) A lease of tangible property from a subsidiary

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to the parent company shall not be subject to the sales

and use tax imposed by sections 77-2701 to 77- 27,135. Such + )

subsidiary company shdll have the same sales and use tax’

_ ability on the purchase of property to be leased to the

parent company as the parent company. would have paia

if the parent, company had purchased the : ‘property di- ©

rectly.

Source: Laws 1967, c. 487, 64; on 1967, c. 490, r $3.

Effective date “April 28,. 1967.

Bi EAB. AO

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(OEE.

| Office-Supreme 77 US.

FILED

MAR, 20 1969

States CLERK

SUPREME | COURT. | .

No. 610

) JOHN L. SULLIVAN, Tax Commissioner of the State of

' Connecticut; GERALD A. LAMB, Tréasurer of the State of

Connecticut; LOUIS L GLADSTONE, Comptroller of the

State of Connecticut;. and ROBERT K. KILLIAN, Attorney

‘ General of ‘the State of Connecticut;

a0 7 __» Appellants,

BP a Paes ce , ree

|“ UNITED STATES OF AMERICA, ET AL.” ce

ON APPEAL FROM THE UNITED STATES COURT

| - OF APPEALS

ae FOR THE SECOND CIRCUIT

APPELLANTS’ OBJECTIONS TO MOTION OF

- STANLEY FISSEL. FOR LEAVE TO BRIEF .

AMICUS CURIAE IN SUPPORT OF APPELLEE

F. Micuart AnEan i

30 Trinity Street

Hartford, Connecticut

_Ratrs G. Musray

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: INTHE. ae .

_ Supreme Court uf the Ruited States oe

Octoser TERM, 7

mo 60

JOHN L. SULLIVAN, Tax Commissioner of a. ‘State of

Connecticut. GERALD A." LAMB, Treasurer of the State of

Connecticut; LOUIS I. GLADSTONE, Comptroller of the

- State of Connecticut; and ROBERT K. KILLIAN, Attorney

General of the State of Connecticut; :

Appellants,

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UNITED STATES OF AMERICA, ET AL.

’ | ee i Appellees.

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ON APPEAL FROM THE STATES. COURT | a:

| OF APPEALS

FOR THE SECOND CIRCUIT

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APPELLANTS’ OBJECTIONS TO MOTION OF |

_ STANLEY FISSEL FOR LEAVE TO FILE BRIEF

AMIGUS CURIAE IN SUPPORT \QF APPELLEE

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Appellants object to the Motion for the following reasons:

1. The United States District Court for the District of

_Connecticut.dismissed the claim of Lt. Stanley D. Schuman,

U.S.N., who had sued for himself and on, behalf of all service-

men or former servicemen similarly ‘situated, for lack of

jurisdiction. No appeal was taken from said dismissal. The

| instant Motion is ree an attempt to participate in: the

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_ «case indirectly when the lower court has foreclosed such

participation directly. ae :

_ 2. The parties to: this action etnaiied into a stipulgtion

‘of facts (R.A., 13A). and affidavits were submitted’ by agree-

‘ment as to the sales transactions in dispute.- This Motion |

' ‘raises‘new facts which Appellants have not had an opportu-

nity to contest or rebut. Eér example, Appellants would want

, to inquire’as to ‘whether Stanley Fissel received his training

' asa angers aod tinge expense, which would have an

effect on total value of the salary and benefits received

from the-government. Appellants would also want to inquire

as to whether the motor vehicles purchased by Stanley

Fissel were used in his trade as a mechanic so as to bring

such transactions within the statutory exclusion of Section

514(1), 54 Stat. 1178. (A.B., 2)

3.° The Motion raises additional questions and issues

which are not susceptible of resolutio the appellate stage

of the proceedings. Rather than ai the Court in its

eliberation of the issues, we submit it would be misleading

and confusing.

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“4. The Motion does nét raise or introduce’ new or novel _~

argumen which the United States of America. has not .

directly or i directly addressed to the lower courts and which

it will undoubtedly address to this’ Court.

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5. The Motion - is" parported to be filed in conformance

with Rule 42 ‘of the Rules’ ‘of. the Supreme Court of: the

‘United “States but aside from the . Teference to the rule there. .

eal not been compliance (with the requirements of — rule.

‘6. ‘The Motion does not comply with Rule 42 (3) of

‘the Rules of the Supreme Court. of the United States in that

it incorrectly includes the’ brief of the prospective amicus

_*, euriae before the appellayyts have had an opportunity to file

"s objections to the _— of the Motion

Qs

“ar .

3

7%, Rule 42 (2) of the Rules of the Supreme,Court of .

the United States has not beén. complied with in that ‘the

brief has been effectively filed without an order of this Court .

grantin a for such filing.

As a practical matter, it is recognized that by bringing

the contents of his brief to the attention of this Court by the

irregular means followed by him, counsel has accomplished

his-immediate objective. However, we submit that the Court

should not,,condone such flagrant non-compliance with pro-

cedural requirements. .

Accordingly, it. is respectfully submitted that for the

_ above reasons and in the interest of orderly proceduré ~

Motion should be denied.

” ‘aapenttally submitted,

THE APPELLANTS.

By: Ropert K. KILuian

* Attorney General for the .

State of Connecticut

F. MICHAEL AHERN eyes

Assistant Attorney General

Rata G. Murray

Assistant: Attorney General

. Ricwarp A. GITLIN

Assistant Attorney General

Their Attorneys