# Organization for a Better Austin v. Keefe > Supreme Court of the United States · May 17, 1971 · 402 U.S. 415 URL: https://www.frixlaw.com/law-library/cases/9424565 ## Case - **Full name:** ORGANIZATION FOR a BETTER AUSTIN Et Al. v. KEEFE - **Court:** Supreme Court of the United States - **Decided:** May 17, 1971 - **Citations:** 402 U.S. 415; 1 Media L. Rep. (BNA) 1021; 91 S. Ct. 1575; 29 L. Ed. 2d 1; 1971 U.S. LEXIS 44 - **Precedential status:** Published - **Opinion:** Dissent by Harlan - **Judges:** Burger, Black, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Harlan - **Cited by:** 588 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9424565 ## How later opinions describe it (automated extraction) - holding that designation of conduct of community organization in distributing leaflets critical of real estate broker's alleged "block busting" and "panic peddling" activities in area of Chicago as an invasion of broker's rights of privacy was not sufficient to support an inju… - holding that a state court’s injunction prohibiting the distribution of leaflets critical of the respondent’s real estate practices was an unconstitutional prior restraint on speech, while noting that the injunction operated “not to redress alleged private wrongs, but to suppr… - finding that a temporary “injunction, so far as it impose[d] prior restraint on speech and publication, constitute^] an impermissible restraint on First Amendment rights,” and that “[a]ny prior restraint on expression comes to this Court with a ‘heavy presumption’ against its … - holding that plaintiff could not seek to enjoin defendants from distributing leaflets critical of plaintiff in the neighborhood, concluding that an “important distinction[]” from Rowan was that plaintiff was “not attempting to stop the flow of information into his own househol… - holding as unconstitutional prior restraint injunction granted by Illinois court that prohibited group from passing out handbills anywhere in a town where the group had sought to distribute information about a real estate agent they thought was engaging in racially inflammator… ## Opinion text Mr. Justice Harlan, dissenting. In deciding this case on the merits, the Court, in my opinion, disregards the express limitation of our appellate jurisdiction to “[f]inal judgments or decrees,” 28 U. S. C. § 1257 , and does so in a way which undermines the policies behind limiting our review to judgments “rendered by the highest court of a State in which a decision could be had,” ibid., and interferes with Illinois’ arrangements for the expeditious processing of litigation in its own state courts. It is plain, and admitted by all, that the “temporary” or “preliminary” injunction entered by the Circuit Court of Cook County and affirmed by the Appellate Court, First District, is not a final judgment. Review of preliminary injunctions is a classic form of interlocutory appeal, which Congress has authorized in limited instances not including review by this Court of state decrees. See 28 U. S. C. §§ 1252 , 1253; cf. 28 U. S. C. § 1292 (a)(1). Despite the seemingly absolute provision of the statute, the Court holds that this case is within the judicially created exception for instances in which the affirmance of the interlocutory order by the highest state court decides the merits of the dispute for all practical purposes, leaving the remaining proceedings in the lower courts as *421 nothing more than a formality. See Pope v. Atlantic Coast Line R. Co., 345 U. S. 379, 382 (1953); Construction Laborers’ Local 438 v. Curry, 371 U. S. 542, 550-551 (1963); Mills v. Alabama, 384 U. S. 214, 217-218 (1966). The apparent, though unstated, justification for this is the petitioners’ representation in this Court that they have no defense to offer other than their First Amendment contentions, which they assert the Illinois courts have decided against them on the merits. Pet. for Cert. 6. Even assuming that the latter position is correct, * this case does not fit into the mold of the cases in which this Court has reviewed orders of state supreme courts affirming the grant of preliminary relief, for here the Illinois *422 Supreme Court has never passed on the merits of petitioners’ constitutional contentions. If this case were permitted to return to the trial court for consideration of the merits of petitioners’ contentions and the entry of final judgment, petitioners would have an appeal as of right directly to the Illinois Supreme Court if that judgment were adverse to them. Ill. Const., Art. 6, § 5; Ill. Sup. Ct. Rules 301, 302 (a). That court would then have an opportunity to correct the errors, if any, in the lower court judgment; or if it failed to do so we would have the benefit of that court’s views on the issues here presented. Such review by “the highest court of a State in which a decision could be had” is particularly important in the context of Illinois procedure, which places primary responsibility for review of constitutional contentions in the State Supreme Court. All appeals from final judgments in cases involving a constitutional question must be taken directly to that court, see Ill. Sup. Ct. Rule 302 (a) (2); consequently the intermediate Appellate Court rarely has occasion to engage in constitutional adjudication. To be sure, the Illinois Supreme Court, by denying petitioners’ motion for leave to appeal from the order of the Appellate Court, had an opportunity to rule on the issue presented by this case and declined to do so. However, Illinois has a strong policy against Supreme Court review of interlocutory orders. Until recently the Supreme Court had no direct appellate jurisdiction over judgments of the Appellate Court on interlocutory appeals, but simply reviewed the issues presented by the subsequent final judgment. 6 C. Nichols, Illinois Civil Practice § 5998 (1962 rev. vol. H. Williams & M. Wing-ersky). Although interlocutory review is now available in the discretion of the Supreme Court, it is “not favored.” Ill. Sup. Ct. Rule 318 (b); see also Ill. Sup. Ct. Rule 315 (a). We have ourselves often made a simi *423 lar resolution of the competing interests in prompt correction of lower courts’ errors on the one hand and in expeditious processing of litigation to final judgment on the other. See R. Stern & E. Gressman, Supreme Court Practice §4.19 (4th ed. 1969). Under today’s decision, Illinois will have to surrender its judgment in these matters if it desires to interpose the State Supreme Court between the subordinate state courts and review by this Court, as the highest-state-court requirement permits it to do. If this Court would respect the final-judgment limitation on our jurisdiction, Illinois would not be put to this choice. It is, of course, tempting to ignore the proper limitations on our power when the alternative is to delay correction of what the Court today holds was a flagrant error by lower courts. This is particularly true where, as here, a “temporary” injunction has been outstanding for a lengthy period. But the question is not whether we think our intervention in the dispute at this stage would be desirable — although with our overall docket running at about 4,000 cases a Term there is surely much to be said for giving each litigant only one bite at the apple. The policy judgment involved was expressly committed to Congress by Art. Ill, § 2, of the Constitution, and Congress has spoken in § 1257. I would respect that congressional judgment and dismiss the writ for lack of jurisdiction. Settled Illinois law provides that “[i]t is not, of course, the purpose of a temporary injunction to decide controverted facts or the merits of the case,” Lonergan v. Crucible Steel Co. of America, 37 Ill. 2d 599, 611 , 229 N. E. 2d 536, 542 (1967), but “merely to preserve the last actual peaceable uncontested status which preceded the pending suit.” Consumers Digest, Inc. v. Consumer Magazine, Inc., 92 Ill. App. 2d 54, 61 , 235 N. E. 2d 421, 425 (App. Ct., 1st Dist., 1968). “It is enough if [the applicant] can show that he raises a fair question ,as to the existence of the right which he claims and can satisfy the court that matters should be preserved in their present state until such questions can be disposed of.” Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570, 574 , 21 N. E. 2d 723, 725 (1939). The granting of a preliminary injunction is committed to the sound discretion of the trial judge, and it is reviewable only for abuse of discretion. Lonergan v. Crucible Steel Co. of America, supra, at 612, 229 N. E. 2d, at 542 . In argument before the Illinois chancellor, petitioners’ attorney stated: “We don’t wish to go into lengthy argument on constitutional provisions at this time. We feel that it is only fair that both sides prepare briefs in preparation for a full hearing on the permanent injunction. And, to that end, we just want to point out that these are constitutional questions, on which we feel the law is abundantly clear, and that is a further reason why Your Honor in his discretion, should not see fit to issue a temporary injunction.” R. 56. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9424565. Public record. Not legal advice.