Petition — Weeks v. Clark

No. 75-653 4

Se the ) li Bore ie

Supreme Court of the Bmited States ,

Octoser Term, 1975 ih

i MICHAEL +

GERALD R. WEEKS, individually and as Chairman of

the DuPage County Board of Commissioners, ROBERT

A. MORRIS, individually and as Chairman of the Special

Investigative Committee, and FRANK H. BELLINGER,

individually and as Vice-Chairman of the Special Investi-

gative Committee,

Petitioners,

vs.

JAMES CLARK, Treasurer of DuPage County, and

MICHAEL DUTTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Terry M. Grimm

Rosert G. Foster

Exiten C. NEwcoMer

One First National Plaza

Chicago, Illinois 60603

Attorneys for Petitioners

Of Counsel:

Winston & Strawn

One First National Plaza

Suite 5000

Chicago, Illinois 60603

The Scheffer Press, Inc.—(312) 263-6850

TABLE OF CONTENTS

PAGE

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REASONS FOR GRANTING THE WRIT. .............. 6

EER TEITIITTIITE -- sictiincisseticccaipnitssiegninsintenaeaiindseiiastainipedienatbcsiienitinieten 9

APPENDIX A

Minute Order of the United States District Court

for the Northern District of Ilinois .........0..0... la

APPENDIX B

Opinion of the Court of Appeals .........ccceeeeeees 3a

Taste Or Autuorities CIrep

CASES:

Granny Goose Foods, Inc. v. Brotherhood of Team-

sters & Auto Truck Drivers, 415°U.S. 423 (1974) .... 6,7

Jacobs v. Tawes, 250 F.2d 611 (4th Cir. 1957) ............ &

Majuri v. U.S., 431 F.2d 469 (3rd Cir. 1970), cert.

denied 400 U.S. 943 (1970) ............ scsdalaaaiiaidsmminiieaaaiiiiiidta 8

Pan American World Airways v. Flight Engineers

Ass'n, 306 F.2d 840 (2d Cir. 1962) .............ccccsssscssseees 6,8

Preston County Light & Power Co. v. Public Service

Commission of West Virginia, 297 F.Supp. 759 (S.D.

We THEI ccscovensnccescstsivssdcbistdipiidnendcniianemiieniesndnainemmneniines 8

Sims v. Greene, 160 F.2d 512 (3rd Cir. 1947) «0.0.0.0... 6,8

West Virginia Motor Trust Ass’n v. Public Service

Commission of West Virgima, 123 F.Supp. 206 (S.D.

W.Va. 1954), aff'd 348 U.S. 881 (1954) oo... cece 8

In THE

SUPREME COURT OF THE UNITED STATES

OQcroBer Term, 1975

No.

GERALD R. WEEKS, individually and as Chairman of

the DuPage County Board of Commissioners, ROBERT

A. MORRIS, individually and as Chairman of the Special

Investigative Committee, and FRANK H. BELLINGER,

individually and as Vice-Chairman of the Special Investi-

gative Committee, ;

Petitioners,

vs.

JAMES CLARK, Treasurer of DuPage County, and

MICHAEL DUTTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To the Honorable Warren E. Burger, Chief Justice, and

the Associate Justices of the Supreme Court:

Petitioners, Weeks, Morris and Bellinger, respectfully

petition for a writ of certiorari to review an order of the

United States Court of Appeals for the Seventh Cireuit

dismissing Petitioners’ appeal below.

=

OPINIONS BELOW

The United States District Court for the Northern

District of Illinois rendered no opinion below. The District

Court’s Minute Order which was appealed from is re-

printed as Appendix A to this Petition. The opinion of

the Seventh Circuit Court of Appeals dismissing Peti-

tioners’ appeal is not officially reported but its Slip

Opinion is reprinted as Appendix B to this Petition.

JURISDICTION

The decision of the Court of Appeals which constitutes

its judgment was entered on August 5, 1975. Jurisdiction

of this Court to review the judgment by writ of certiorart

is invoked under 28 U.S.C. $1254(1).

QUESTIONS PRESENTED FOR REVIEW

(1) Whether a Temporary Restraining Order in a

case required to he ° ecard by a three-judge court pursuant

to 28 U.S.C. §2281 may be extended over opposition

beyond twenty days without a hearing on a motion for a

preliminary injunction and whether such a procedure is

sanctioned by Rule 65(e) of the Federal Rules of Civil

Procedure.

(2) Whether an indefinitely extended Temporary Re-

straining Order becomes an appealable interlocutory in-

junction within the terms of 28 U.S.C. §1292(a)(1) even

though a three-judg* court has been convened pursuant

to 28 U.S.C. §2284(1).

(3) Whether 28 U.S.C. §§2281 or 2284 confers general

appellate jurisdiction on three-judge district courts.

(4) Whether the Court of Appeals erred in dismissing

the Petitioners’ appeal,

a va

STATUTES INVOLVED

Title 28 U.S.C. §2284(3) provides in relevant part:

“In any such case in which an application for an

interlocutory injunction is made, the district judge

to whom the application is made may, at any time,

grant a temporary restraining order to prevent irrep-

arable damage. The order, unless previously revoked

by the district judge, shall remain in force only until

the hearing and determination by the full court.”

Rule 65(b) of the Federal Rules of Civil Procedure,

as amended, Effective July 1, 1966, provides in relevant

part:

“A temporary restraining order ... shall expire

by its terms within such time after entry, not to

exceed 10 days, as the court fixes, unless within the

time so fixed the order, for good cause shown, is

extended for a like period or unless the party against

whom the order is directed consents that it may be

. extended for a longer period.”

Rule 65(e) of the Federal Rules of Civil Procedure

provides in relevant part:

“These rules do not modify any statute of the

United States relating to temporary restraining

orders and preliminary injunctions in actions affect-

ing employer and employee; ... or Title 28, U.S.C.

$2284, relating to actions required by Act of Con-

gress to be heard and determined by a district court

of three judges.”

Title 28 U.S.C. $1450 provides in relevant part:

“Whenever any action is removed from a State

court to a district court of the United States...

* * *

ad

—_—

All injunctions, orders; and other proceedings had

in such action prior to its removal shall remain in

full foree and effect until dissolved or modified by

the district court.”

STATEMENT OF THE CASE

Respondents (plaintiffs below) filed a lawsuit on June

19, 1975, in the United States District Court for the

Northern District of Llinois, pursuant to Title 42 U.S.C.

§1983, to redress alleged deprivations of their rights

under the First, Fourth and Fourteenth Amendments of

the Constitution of the United States.

Respondents sought and obtained a Temporary Re-

straining Order of June 23, 1975, preventing your Peti-

tioners from proceeding with an investigation of James

Hi. Clark relating to the propriety of his conduct as

Treasurer of DuPage County by a special committee

comprised of 13 members of the County Board of DuPage

County, Illinois. Petitioners are elected members of the

DuPage County Board.

On July 1, 1975, over opposition of Petitioners, who

filed a motion to dissolve the Temporary Restraining

Order, the single district court judge extended the Tem-

porary Restraining Order indefinitely. (Appendix A) To

date, Petitioners have had no hearing on the Respondents’

motion for a prelimmary injunction. On July 14, 1975,

Petitioners filed a Notice of Appeal in the Seventh Cir-

cuit Court of Appeals. On August 5, 1975, acting on the

motion of Respondents, the Seventh Circuit Court of

Appeals dismissed the appeal for lack of jurisdiction.

The court below held it was without jurisdiction to hear

Petitioners’ appeal in view of the provisions of 28 U.S.C.

en

§$2284(3) and §2284(5), citing Hicks v. Pleasure House,

Inc., 404 U.S. 1 (1971):

“

.

. a temporary restraining order issued pur-

suant to $2284(3) is reviewable in a court of appeals

to the extent that any such order is reviewable under

28 U.S.C. §§1291 and 1292(a). However, if no such

appeal ig taken before the three-judge court is con-

vened, application must be made to that court for

vacation or modification of the temporary restraining

order pending a final determination of the merits.”

404 U.S. at 3

ees

REASONS FOR GRANTING THE WRIT

The Petition raises a fundamental question concerning

the limited and fixed duration of Temporary Restraining

Orders. Rule 65(b) of the Federal Rules of Civil Proce-

dure is explicit. Petitioners have had uo evidentiary

hearing on a motion for preliminary injunction and have

been indefinitely enjoined. In normal circumstances, the

law is clear that the Temporary Restraining Order pres-

ently entered is of no effect. Granny Goose Foods, Inc.

v. Teamsters, 415 U.S. 423, 451 (1974); Pan American

World Atrways v. Flight Engineers Ass'n., 306 F.2d 840

(2d Cir. 1962); Sims v. Greene, 160 F.2d 512 (3rd Cir.

1947).

Thus, the court must determine whether a ‘Temporary

Restraining Order granted in a three-judge court case

has a special indefinite life which Temporary Restraining

Orders in other cases do not.

In Granny Goose Foods, Inc. vy. Teamsters, supra, this

court granted certiorari to the Ninth Cireuit Court of

Appeals in a case involving an interpretation of 28 U.S.C.

§1450. The case in the Ninth Cireuit turned on the narrow

issue of whether a Temporary Restraining Order could

he extended indefinitely without a hearing held on a

motion for a preliminary injunction. The Ninth Circuit

held that it could not and this Court, noting a conflict in

the circuits, granted certiorari and affirmed the Ninth

Circuit.

' Appalachian Volunteers, Inc. vy. Clark, 432 F.2d 530

(Gth Cir. 1970), cert. denied 401 U.S. 939 (1971); Morning

Telegraph vy. Powers, 450 F.2d 97 (2d Cir. 1971), cert.

denied 405 U.S. 954 (1972).

= =

The Granny Goose case involved employer-employee’

relationships and, read literally, Rule 65(e) of the Federal

Rules of Civil Procedure might well proscribe any appli-

cation of Rule 65(b) with respect to the duration of a

Temporary Restraining Order in such a case. This Court,

while not considering the applicability of the provisions

of Rule 55(e), rejected the notion that a special breed of

Temporary Restraining Orders was created by the provi-

sions of 28 U.S.C. $1450 and accordingly should grant

certiorart here to determine the important question of

whether a special breed of Temporary Restraining Order

of indefinite duration is created by virtue of 28 U.S.C.

§2284(3).

In Granny Goose, this Court was faced with the pre-

cise circumstances which are present in the instant case.

In resolving the facial conflict between the provisions of

28 U.S.C. §1450 and Rule 65(b), the Court succinctly

stated the issue and held:

“To the extent this reading of $1450 is inconsistent

with the time limitations of Rule 65(b), petitioners

con‘end the statute must control.

In our view, however, §1450 can and should be

interpreted in a manner which fully serves its under-

lying purposes, yet at the same time places it in

harmony with the important congressional policies

reflected in the time limitations in Rule 65(b).” 415

U.S. at 435.

The Court should grant this petition for certiorari

to place Title 28 U.S.C. $2284(3) in harmony “with the

* Basically involved, as this court noted, was a dispute

over the enforceability against the defendant union of

certain changes in new contracts. 415 U.S. at 427. The

Temporary Restraining Order was obtained ez parte and

the union’s motion to dissolve the Temporary Restraining

Order was denied.

a

important congressional policies reflected in the time

limitations in Rule 65(b).”

The Seventh Circuit Court of Appeals held that it

was without jurisdiction to hear Petitioners’ appeal since

if the Temporary Restraining Order were appealable at

all it must be heard by the three-judge court. A three-

judge court is a nist prius tribunal and does not have

general appellate jurisdiction. Preston County Light 4

Power Co. v. Public Service Comm’n of West Virginia,

297 F.Supp. 759, 864 (S.D.W.Va. 1969; Jacobs v. Tawes,

250 F.2d 611, 614 (4th Cir. 1957) ; see also Majuri v. United

States, 431 F.2d 469 (3rd Cir. 1970), cert. denied 400 U.S.

943 (1970); West Virginia Motor Truck Ass’n vy. Public

Service Comm'n, 123 F.Supp. 206, 216 (S.D.W.Va. 1954),

aff'd 348 U.S. 881 (1954). Normally, of course, Temporary

Restraining Orders are not appealable. Pan American,

supra, at 841-842. It is only when a Temporary Restrain-

ing Order becomes an interlocutory injunction that it is

subject to review pursuant to 28 U.S.C. §1292(a)(1). Pan

Amverican at 842; Sims v. Greene, swpra, at 517. Petition-

ers filed a timely notice of appeal on July 14, 1975, exactly

one day after a “normal” Temporary Restraining Order

would have expired. If in three-judge cases the Federal

Rules of Appellate Procedure for filing a notice of appeal

are amended so that a party against whom a Temporary

Restraining Order is obtained must file his notice of

appeal before the chief judge of the circuit court con-

venes the three-judge court, this Court should seize an

opportunity to make this anomaly clear to the practicing

bar. It is Petitioners’ view that the Temporary Restrain-

ing Order entered June 23, 1975 did not become an inter-

locutory injunction and thus appealable within 28 U.S.C.

§1292(a)(1) until the expiration of twenty days from

the date it was originally granted, June 23, 1975.

—9—

CONCLUSION

All questions now presented for review were answered

incorrectly by the lower courts in that the holdings below

conflict with applicable decisions of this court and the

mandate of the Federal Rules of Civil Procedure relating

to the duration of Temporary Restraining Orders.

It is requested, therefore, that this petition for a Writ

of Certiorar: be granted.

Respectfully submitted,

Terry M. Grimm

Rosert G. Foster

ELLen C. NEWCOMER

One First National Plaza

Suite 5000

Chicago, Illinois 60603

Attorneys for Petitioners

Of Counsel:

Winston & Strawn

One First National Plaza

Chicago, Illinois 60603

—10—

CERTIFICATE OF SERVICE

County of Cook )}

State of Illinois ; *

I, Terry M. Grimm, state under oath that I have this

date served the attached Petition for Writ of Certiorari

on James Clark and on Michael Dutton by delivering three

copies of the same by hand to their counsel of record,

Thomas P. Sullivan, Alan L. Metz and Jeffrey D.

Colman, Jenner & Block, One IBM Plaza, Chicago, Illi-

nois, and by mailing one copy of the same by certified

mail to their additional counsel of record, Paul T. Kalinich,

646 Roosevelt, Glen Ellyn, Illinois. All parties required

to be served have thus been served.

SEER EERE EEE EERE EEE EERE EEE EEE EEE EEE HEE HEHEHE EH EH EEE HH EEE

Terry M. Grimm

Subseribed and sworn to

before me this third day

of November, 1975.

Pee eee RCO RECEP ETUC PEEP EEC

Notary Public

APPENDIX

== 1g —

APPENDIX A

Unitep Srates Districr Court

Northern District of [linois

Eastern Division

Name of Presiding Judge, Honorable William J. Lynch

Cause No. 75 C 2009 Date 7-1-75

Title of Cause

James Clark

V

Gerald R. Weeks

Brief Statement of Motion

Ptff’s Motion for extension of T.R.O. & Motion for

Preliminary Injunction.

The rules of this court require counsel to furnish the

names of all parties entitled to notice of the entry of

an order and the names and addresses of their attorneys.

Please do this immediately below (separate lists may be

appended).

Names and

Addresses of

moving counsel

Representing

Names and

Addresses of

other counsel

entitled to

notice and names

of parties they

represent,

’

=

Notes: Ordered that the temporary restraining order

entered by this Court in the above-entitled action on

June 23, 1975, be extended in full force until such time

as the Three-Judge Court hears and decides the pltff’s.

Motion for a preliminary injunction. (Draft)

/s/ W. J. L.

(Docketed Jul 3 1975)

Hand this memorandum to the Clerk.

Counsel will not rise to address the Court until motion

has been called.

—_ so

APPENDIX B

Untrep States Court or APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 5, 1975

Before

Hon. THomas FE. Farrcui.p, Chief Judge

Hon. Jonn Pauw Srevens, Circuit Judge

Hon. Wriu1am J. Baver, Circuit Judge

No. 75-1667

James Cuark, Treasurer of DuPage County, and

MicHaEL Dutton,

Plaintiffs-A ppellees,

Vs.

GeraLp R. Weeks, etce.. et al.,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 75 C 2009

Wiuiam J. Lyncn, Judge.

This matter comes before the Court on the “Motion

of Defendants-Appellants for Suspension of Rule 2 of

the Federal Rules of Appellate Procedure” and plain-

tiffs-appellees’ “Motion to Dismiss Appeal for Lack of

Jurisdiction and in the Alternative Answer in Opposition

to Suspension of F.R.A.P. 2.”

Defendants seek to appeal from an order entered by

a Single Judge District Court on July 1, 1975, extending

a temporary restraining order until such time as a

—

Three-Judge Court hears and decides plaintiffs’ motion

for a preliminary injunction. Defendants filed their notice

of appeal from the district court’s order on July 14,

1975. We note that plaintiffs’ application for the con-

vening of a Three-Judge Court was granted by the

Single Judge District Court on June 26, 1975 and that

on July 2, 1975 a Three-Judge Court was convened.

Plaintiffs argue that this Court is without jurisdiction

to hear this appeal in light of £° U.S.C. §§2284 (3) and

(5) and that defendants must seek relief from the Three-

Judge Court concerning dissolution or modification of

the temporary restraining order. In Hicks v. Pleasure

House, Inc, 404 U.S. 1 (1971) (Per Curiam), the United

States Supreme Court addressed the issue of the proper

court for review of a temporary restraining order en-

tered by a Single Judge District Court when a Three-

Judge Court has convened. Though a court of appeals

may review a temporary restraining order entered pur-

suant to 28 U.S.C. §2284 (3), in the same manner and

to the same extent that any such order is reviewable

under 28 U.S.C. §§ 1291 and 1292(a), appellate review

is improper if the notice of appeal is filed subsequent

to the convening of a Three-Judge Court. The Supreme

Court stated:

“Thus, if a single judge oversteps his limited au-

thority under $2284(3), a court of appeals may cor-

rect his error. In addition, a temporary restraining

order issued pursuant to §2284(3) is reviewable in a

court of appeals to the extent that any such order

is reviewable under 28 U.S.C. §$§ 1291 and 1292(a).

However, if no such appeal is taken before the three-

judge court is convened, application must be made

to that court for vacation or modification of the

temporary restraining order pending a final deter-

mination of the merits.” Hicks, supra at 3.

In light of the foregoing,

IT IS HEREBY ORDERED that plaintiffs’ motion to

dismiss be, and the same is hereby, GRANTED.