Lubin v. Panish - Oral Argument - October 09, 1973

Lubin v. Panish

Media for Lubin v. Panish

Audio Transcription for Opinion Announcement - March 26, 1974 in Lubin v. Panish

Audio Transcription for Oral Argument - October 09, 1973 in Lubin v. Panish

Warren E. Burger:

We’ll hear arguments next in number 71-6852, Lubin against Panish.

Ms. Buckley, you may proceed whenever you’re ready.

Marguerite M. Buckley:

Thank you. Mr. Chief Justice, and may it please the Court.

I am the counsel for Donald Lubin, the petitioner in this case spoke individually and on behalf of the members of his class.

This case first begin a year ago in February, at which time approximately 22 people who were desirers of becoming candidate and the forthcoming elections came to me and we all proceeded to the office of the registrar, the Recorder Registrar in the County of Los Angeles.

Included among these 22 people were men and women, Black and White, most strictly some Freedom Party members but also two members of the Democratic Party, a member of the Republican Party and a member of the American-Independent Party.

They had two things in common, they wanted to be candidates because they had something to say to the electors and they could not afford to pay the filing fees.

Now, there was one other distinction also and that was that most of the people who wanted to become candidates, who are running for a primary position at political office which required them to be a member of the party.

But in county and city elections in California, most of the offices are nonpartisan and therefore, Donald Lubin who wished to run for the office of board of supervisor was running in a general election, not a primary election.

He was not a member of a party for purposes of ballot status.

We filed a writ of mandamus asking the -- both the Recorder Registrar of the County of Los Angeles and the Secretary of State of California to issue nomination papers to these people without the necessity of paying fees.

We were granted a temporary injunction by Judge Cole of the Los Angeles Superior Court and an ultimate writ was set for hearing on March 6.

At that time, Judge Rehnquist sitting in the Los Angeles County Superior Court held that as a matter of law, Bullock applying that as a matter of law, California fees were reasonable and the fact that there was no alternative did not matter under Bullock.

Thereafter, I filed another writ of mandate in the Appellate Court in California, procedure which is an alternate to an appeal.

William H. Rehnquist:

Ms. Buckley, would Judge Weinkie's ruling have been appealable itself to the District Court of Appeal had you chosen to go that route?

Marguerite M. Buckley:

Yes, but it would have been meaningless in terms of relief for our clients because we could never have gotten any kind of hearing before the elections would be held.

The only reasonable choice we had was filled by way of writ of mandate to the Appellate Court.

To give them the best opportunity to rule reasonably, we attached a copy of the transcript to the hearing in the lower court.

We were denied with that hearing and we promptly filed a writ of mandate in the Supreme Court.

And again, the transcript of the hearings including Judge Weinkie's statement at page three, to the effect that it appears to the Court that the fees are reasonable as a matter of law was before the Supreme Court and they denied the mandate without a hearing.

William H. Rehnquist:

Under California law, is that necessarily a determination on the merits, their denial without hearing of a petition over extraordinary writ?

Marguerite M. Buckley:

In as much as they had the complete proceedings of the lower court, I know of no case Your Honor.

William H. Rehnquist:

This was not certiorari.

Though I mean, where you are trying to get before, this is a pledge for original writ of mandate, wasn’t it?

Marguerite M. Buckley:

But if it presented to the Court, all of the material, which was before the lower court Your Honor.

William H. Rehnquist:

And then, their denial without having you sit in is necessarily the decision on the merits, they don’t in their practice occasionally simply deny this disgression.

Marguerite M. Buckley:

I have no knowledge of that Your Honor.

And so, we are now here --

Thurgood Marshall:

On the writ of mandate in California is an extraordinary writ as somewhat --

Marguerite M. Buckley:

Yes, Your Honor.