Petition — Bulk Terminals Co. v. Environmental Protection Agency

1977

In Tue |

ae RODAK, JR., CLERK

Supreme Court of the Gnited States

Octoser Term, 1976

. ————

ape | @6-1211

BULK TERMINALS COMPANY and GERALD L. SPAETH,

Petitioners,

vs.

ENVIRONMENTAL PROTECTION AGENCY, RICHARD

BRICELAND, Director of the Environmental Protection Agency,

CITIZENS FOR A BETTER ENVIRONMENT, POLLUTION

CONTROL BOARD of the State of Illinois, and JACOB D.

DUMELLE, DONALD A. HENSS, SIDNEY M. MARDER, RUS.-

SELL T. ODELL, ROGER G. SEAMAN, members of the Pollu-

tion Control Roard of Illinois,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

R. R. MceMAHAN

115 S. LaSalle Street

Chicago, Illinois 60603

Attorney for Petitioners

Rospert A. Knutti

Lorp, Bissett & Broox

115 S. LaSalle Street

Chicago, Illinois 60603

Of Counsel

a TT aN A TT ea

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

Opinions below 2

Jurisdiction 2

Questions presented 3

Constitutional and statutory provisions involved .......... 3

Statement of the case 5

Reasons for granting the writ 10

Conclusion 15

Appendix A la

Appendix B 15a

Appendix C 22a

Appendix D . 24a

Appendix E 25a

Appendix F 26a

CrraTiIons

Cases:

Benton v. Maryland, 395 U.S. 784 (1969) 10

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930) .... 13

Davis v. Wechsler, 263 U.S. 22 (1923) 13

Henry v. Mississippi, 379 U.S. 443 (1965) 13

Hillsborough v. Cromwell, 326 U.S. 620 (1946) -........... 13

Liner v. Jafco, Inc., 375 U.S. 301 (1964) 13

Love v. Griffith, 266 U.S. 32 (1924) 13, 14

Lovell v. City of Griffin, 303 U.S. 444 (1938) ................ 13

Marino v. Ragen, 332 U.S. 561 (1947) 12

Missouri Pacific Ry. Co. v. Tucker, 230 U.S. 340

(1913) 13

Mountain States Co. v. Comm’n, 299 U.S. 167 (1936) .. 12

NAACP v. Alabama, 357 U.S. 449 (1958) -.................. 13

Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287

(1920) ‘ 12

Okla. Gas Co. v. Russell, 261 U.S. 290 (1923) -............... 13

Pacific Tel. Co. v. Kuykendall, 265 U.S. 196 (1924) ... 12

Price v. Georgia, 398 U.S. 323 (1970) 10

Robinson v. Neil, 409 U.S. 505 (1973) 10

Rogers v. Alabama, 192 U.S. 226 (1904) 13

United States v. Beckerman, 516 F.2d 905 (2d Cir.

1975) 11

Waller v. Florida, 397 U.S. 387 (1970) 10

Constitution and Statutes:

United States Constitution, Fifth Amendment ....... ... 3, 10

United States Constitution, Fourteenth Amendment 7 -

Til. Rev.Stat. ch. 110, §265 4, 6, 11

Til. Rev.Stat. ch. 11114, $1041 4,7

Miscellaneous :

Hill, The Inadequate State Ground, 65 Colum.L.Rev.

943 (1965) 14

Note, The Untenable Nonfederal Ground in the Su-

preme Court, 74 Harv.L.Rev. 1375 (1961) im

ee ere

In Tue

Supreme Court of the United States

Ocroser TERM, 1976

No.

BULK TERMINALS COMPANY and GERALD L. SPAETH,

Petitioners,

vs.

ENVIRONMENTAL PROTECTION AGENCY, RICHARD

BRICELAND, Director of the Environmental Protection Agency,

CITIZENS FOR A BETTER ENVIRONMENT, POLLUTION

CONTROL BOARD of the State of Illinois, and JACOB D.

DUMELLE, DONALD A. HENSS, SIDNEY M. MARDER, RUS.-

SELL T. ODELL, ROGER G. SEAMAN, members of the Pollu-

tion Control Board of Mlinois,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

The petitioners Bulk Terminals Company and Gerald

L. Spaeth respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the

Supreme Court of Illinois entered in this proceeding on

September 20, 1976.

axfiien

OPINIONS BELOW

The opinion of the Appellate Court of Illinois (App. A,

infra, pp. la-14a) is reported at 29 Ill.App.3d 978, 331

N.E.2d 260. The opinion of the Supreme Court of Illinois

(App. B, infra, pp. 15a-2la) is reported at 65 IIl.2d 31,

357 N.E.2d 430.

JURISDICTION

The judgment of the Supreme Court of Illinois (App.

C, infra, pp. 22a-23a) was entered on September 20,

1976. Petitioners’ timely petition for rehearing was

denied on December 2, 1976. (App. D, infra, p. 24a). On

December 7, 1976, upon petitioners’ motion, the

Supreme Court of Illinois entered an order staying the

issuance of its mandate. (App. E, infra, p. 25a) This

petition for a writ of certiorari was filed within 90 days

of the date of the denial of rehearing below. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(3).

axis

QUESTIONS PRESENTED

1. May the State of Illinois, consistent with the re-

quirements of due process of law, deny petitioners an op-

portunity for judicial consideration of their claim that

they are being twice prosecuted for the same offense un-

til after the allegedly unconstitutional second prosecu-

tion has been completed?

2. Does the Illinois Administrative Review Act

deprive petitioners of due process of law because it bars

them from seeking judicial interdiction of an ad-

ministrative prosecution claimed to be violative of their

rights under the Double Jeopardy Clause and compels

them to endure the prosecution to its completion before

they would be entitled to judicial review of their claim

under the procedures for review set out in the Act itself?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fourteenth Amendment to the Constitution

provides in relevant part:

[Njor shall any State deprive any person of life,

liberty, or property, without due process of law; ....

2. The Fifth Amendment to the Constitution provides

in relevant part:

{[Njor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

_

3. Section 2 of the Illinois Administrative Review

Act (Ill.Rev.Stat., ch. 110, § 265) provides:

This Act shall apply to and govern every action to

review judicially a final decision of any ad-

ministrative agency where the Act creating or con-

ferring power on such agency, by express reference,

adopts the provisions of this Act. In all such cases,

any other statutory, equitable or common law mode

of review of decisions of administrative agencies

heretofore available shall not be employed after the

effective date hereof.

Unless review is sought of an administrative deci-

sion within the time and in the manner herein

provided, the parties to the proceeding before the

administrative agency shall be barred from ob-

taining judicial review of such administrative deci-

sion. If under the terms of the Act governing the

procedure before an administrative agency an ad-

ministrative decision has become final because of

the failure to file any document in the nature of ob-

jections, protests, petition for hearing or application

for administrative review within the time allowed

by such Act, such decision shall not be subject to

judicial review hereunder excepting only for the

purpose of questioning the jurisdiction of the ad-

ministrative agency over the person or subject

matter.

4. Section 41 of the Illinois Environmental Protection

Act (Ill.Rev.Stat., ch. 111%, § 1041) provides in relevant

part:

[A]ny party adversely affected by a final order or

determination of the [Illinois Pollution Control]

Board may obtain judicial review, by filing a peti-

tion for review within thirty-five days after entry of

the order or other final action complained of, pur-

suant to the provisions of the “Administrative

Review Act,” approved May 8, 1945, as amended

and the rules adopted pursuant thereto, except

that review shall be afforded directly in the

Appellate Court for the District in which the cause

of action arose and not in the Circuit Court. ***

—$—

STATEMENT OF THE CASE

This case arises out of petitioners’ efforts to invoke the

bar of prior jeopardy in the courts of Illinois to halt the

prosecution of administrative actions brought against

them to impose monetary penalties under state air pollu-

tion laws.

Petitioner Bulk Termina.s Company (hereinafter

“Bulk”) operates a storage facility on the south-side of

Chicago, and petitioner Gerald L. Spaeth is its presi-

dent. For some time prior to this litigation Bulk stored

on its premises a chemical called silicon tetrachloride,

which was owned by one Cabot Corporation. In April of

1974 a leak developed in one of the tanks containing

this substance and, it is alleged, there followed a

chemical reaction resulting in emissions of hydrochloric

acid vapor and silicon dioxide into the atmosphere (App.

A, infra, pp. la-2a).

Following this incideat, the City of Chicago filed

several complaints in the Circuit Court of Cook County

charging Bulk and Spaeth or other Bulk employees with

atmospheric pollution in violation of pollution provisions

of the Chicago Municipal Code. A trial was held on these

complaints in the Circuit Court and, following pleas of

not guilty on behalf of Bulk, the court found Bulk guilty

of violating the Municipal Code as charged and imposed

fines for each of the violations (App. A, infra, pp. 2a-3a).

The charges against Spaeth were dismissed.

By the time of trial on the city charges, two actions to

impose fines also had been filed with the Illinois Pollu-

tion Control Board* charging that these same emissions

violated state pollution laws (App. A, infra, p. 3a).

* One of these actions was filed by the State Environmental

Protection Agency; the other was filed by a private citizens

group pursuant to a unique provision in the Illinois En-

(Footnote continued on following page)

_

On September 8, 1974, petitioners filed a complaint in

the Circuit Court of Cook County charging that the

Pollution Control Board was exceeding its jurisdiction

by continuing to entertain these actions because their

prosecution was inconsistent with and contrary to

federal and state constitutional guarantees against dou-

ble jeopardy, and common law principles of res judicata,

as well.* Petitioners asked the Court to issue an injunc-

tion or a writ of prohibition to permanently restrain the

Pollution Control Board from so exceeding its jurisdic-

tion (App. B, infra, pp. 16a-17a).

The trial court granted a motion by the State to dis-

miss the complaint, ruling that the action was

“premature” because petitioners had failed to establish

that they had exhausted their remedies under the State’s

Environmental Protection Act and Administrative

Review Act. (App. A, infra, p. 6a; App. B, infra p. 17a).

Section 2 of the Administrative Review Act, IIl.-

Rev.Stat., ch. 110, § 265, provides, in relevant part, that:

This Act shall apply to and govern every action to

review judicially a final decision of any ad-

ministrative agency where the Act creating or con-

ferring power on such agency, by express reference,

adopts the provisions of this Act. In all such cases,

any other statutory, equitable or common law mode

of review of decisions of administrative agencies

heretofore available shall not be employed after the

effective date hereof.

continued

vironmental Protection Act that allows private parties acting

in the nature of “private attorneys general” to invoke the sanc-

tions of the Act on behalf of the State. The differences

between these two actions are of no significance in the context

of this petition.

* The Pollution Control Board previously had denied a mo-

tion by petitioners to dismiss the actions on double jeopardy

grounds. (App. B, infra, p. 16a)

colle

Section 41 of the Environmental Protection Act, IIl.

Rev. Stat., ch. 111%, § 1041, provides, in relevant part,

that “. . . any party adversely affected by a final order

or determination of the Board may obtain judicial

review, by filing a petition for review . . . pursuant to

the provisions of the “Administrative Review Act”...

except that review shall be afforded directly in the

Appellate Court for the District in which the cause of

action arose and not in the Circuit Court.”

Upon petitioners’ application, the Illinois Appellate

Court stayed all proceedings before the Pollution Control

Board pending appeal of the Circuit Court’s decision.*

The State Appellate Court’s Decision

The Appellate Court of Illinois reversed the order of

the trial court. It refused to construe the exclusive

provisions of the Administrative Review Act governing

judicial review of final administrative decisions as also

barring petitioners from seeking immediate judicial

relief from an allegedly unconstitutional double prosecu-

tion, suggesting that to do so would cast doubt on the

validity of those provisions of the Act:

The Administrative Review Act... applies where

a final decision of an administrative agency has

been made; and other modes of review in such cases

are abolished. [citation omitted] In the instant ac-

tion, however, plaintiffs seek in effect to prevent the

State of Illinois from twice prosecuting and fining

them for the same offense. We feel that to allow a

remedy in a judicial forum only after the fact of

double prosecution would be improper and could

not be mandated by the Administrative Review Act.

That act, like any statute, should be interpreted so

* Order entered October 2, 1974, No. 60865, Appellate Court

of Illinois, First District, Fourth Division.

anton

as to promote its essential purposes and to avoid, if

possible, a construction that would raise doubts as

to its validity. [citation omitted].

[App. A, infra, pp. 6a-7a]

The Appellate Court also ruled in petitioners’ favor on

the merits. Relying on decisions of this Court inter-

preting the Double Jeopardy Clause of the federal Con-

stitution, the court held that further prosecution of the

administrative actions in question was barred by

petitioners’ prior jeopardy, because the City of Chicago,

the Environmental Protection Agency, the Pollution

Control Board and the private citizens group all were

acting as and on behalf of the State (App. A, infra, pp.

8a-9a), the city ordinance and the state statute involved

were substantially similar (App. A, infra, p. 7a), and

that the fines sought were punitive in nature. (App. A,

infra, p. 10a). Tne Court also held that the ad-

ministrative actions would be barred under the doctrine

of res judicata. (App. A, infra, pp. 13a-14a).

The State Supreme Court’s Decision

The Supreme Court of Illinois reversed the Appellate

Court without considering the double jeopardy issue.

The Court said “{tJhe question whether ... the

proceedings before the Pollution Control Board are

barred by either the constitutional proscription of dou-

ble jeopardy or the doctrine of res judicata is one of law

which we need not and do not decide.” (App. B, infra, p.

19a). The Supreme Court viewed the appeal as involv-

ing only “. . . the narrow question whether the allega-

tion of double jeopardy, or alternatively, res judicata,

should invoke an additional exception to the require-

ment that administrative remedies be exhausted prior to

seeking judicial relief” (App. B, infra, p. 19a), and ruled

anes

that the complaint for injunctive relief or a writ of

prohibition filed by petitioners in the Circuit Court “. . .

failed to state facts which would warrant an exception

to the exhaustion doctrine.” (App. B, infra, p. 21a).

Other than to note that petitioners had made the argu-

ment (App. B, infra, p. 18a), the Supreme Court did not

address itself to petitioners’ contention tnat the Ad-

ministrative Review Act would be unconstitutional if it

were construed to bar the relief they had sought in the

Circuit Court. Petitioners raised the constitutional ques-

tion again in their unsuccessful petition for rehearing,

stating that, as a result of the Court’s decision “. . . Il-

linois law affords no meaningful due process resort for

the correction of abuses of individual rights by ad-

ministrative agencies” (App. F, infra, p. 28a), and that:

.. . [T]he Court has failed to recognize that the

collateral attack of the Board’s proceeding made by

the plaintiffs through this suit is one that cannot be

denied a hearing. The courts of Illinois cannot con-

stitutionally refuse to hear this claim because in the

final analysis the doctrine of exhaustion of ad-

ministrative remedies cannot take precedence over

the United States Constitution.

[App. F, infra, p. 28a]

aii

REASONS FOR GRANTING THE WRIT

It is important that this Court review the decision of

the Illinois Supreme Court in this case in order to deter-

mine the nature and extent of a State’s obligation under

the Fourteenth Amendment to afford an accused a time-

ly and meaningful judicial hearing on his claim that the

State is invading rights guaranteed him by the federal

Constitution.

The right that petitioners sought to protect against

state invasion in this case was their right—guaranteed

by the Fifth Amendment—not to be put twice in jeopar-

dy for the same offense. That the Double Jeopardy

Clause prohibits successive prosecutions as well as

successive punishments, and that the States are bound

by its prohibitions to their fullest reach is no longer

open to question. !

In the case at bar, the Illinois Supreme Court, in-

voking the State’s judicially-developed doctrine of ex-

haustion of administrative remedies, has ruled that

petitioners may only secure judicial consideration of

their double jeopardy claims through and in conformity

'_ Benton v. Maryland, 395 U.S. 784, 794-96 (1969). See also,

Robinson v. Neil, 409 U.S, 505, 509 (1973); Price v. Georgia,

398 U.S. 323, 326 (1970); Waller v. Florida, 397 U.S. 387, 388

(1970). The question of whether the actions brought against

titioners before the Illinois Pollution Control were

arred by the Double Jeopardy Clause was decided in

titioners’ favor by the Illinois Aguenete Court. The Illinois

supreme Court expressly declined to consider that question

and, SNES, the correctness of the oy Court’s

ruling on the merits of the double jeopardy defense is not in

issue before this Court. The only question before the Court is

at what point in these prosecutions did due process of law re-

quis that petitioners be allowed to assert their double jeopar-

y defense in an Illinois court?

wifi

with the procedures provided for in the Illinois Ad-

ministrative Review Act—a statute that allows, however,

for no remedy adequate to provide the relief petitioners

seek. The procedures set out in the Administrative

Review Act govern review of final decisions of ad-

ministrative agencies, to the exclusion of all other

statutory, equitable or common law modes of review

(1ll.Rev.Stat. ch. 110, § 265). As interpreted and applied

by the Illinois Supreme Court in this case, the Act re-

quires petitioners to defend the administrative

prosecutions in question to final decision before they

would be entitled to judicial consideration of their claim

that the prosecutions were constitutionally barred from

their inception.? By its ruling that the Administrative

2 Petitioners are aware that the Court’s discussion of United

States v. Beckerman, 516 F.2d 905 (2d Cir. 1975) might be

read as suggesting that petitioners should have attempted to

take an interlocutory appeal from the Pollution Control

Board’s denial of their motion to dismiss the actions. (In

Beckerman, the Court of Appeals for the Second Circuit held

that it had jurisdiction to review on interlocutory appeal the

denial of an accused’s motion to dismiss an indictment on dou-

ble jeopardy grounds. Petitioners cited it below for its

recognition that the bar against second prosecutions is

meaningless if there is no way to invoke it prior to the second

prosecution, not because they thought it procedurall

analogous to their case.) In distinguishing Beckerman, the II-

linois Supreme Court commented:

The situation in Beckerman, hewever, is clearly distin-

ishable. Had plaintiffs, despite the statutory provision

imiting review to “final” orders, sought review of the in-

terlocutory order of the Pollution Control Board denying

their motions, this case would | ye a question similar

to that involved in Beckerman. This, however, they did not

do. We note parenthetically that the Court of Appeals for

the Fifth Cureuit has decided the question contrary to

Beckerman . . . and that in People v. Miller, 35 Ill.2d 62,

it was held “that no appeal lies from an interlr utory order

in the absence of a statute or rule specifically authorizing

such review”.... [App. B. infra, p. 21a; emphasis

supplied ].

Whether the Court actually meant to hold that petitioners had

failed to exhaust their remedies in the sense of attempting an

interlocutory appeal under the Administrative Review Act is,

Review Act prohibits resort to a nisi prius court for the

traditional remedies of injunction or writ of prohibition

in cases like that at bar, the Illinois Supreme Court

effectively has abolished the only procedural vehicle by

which an accused might force a halt to an un-

constitutional second prosecution before it has done its

damage.’ There being no means for its enforcement, a

major element of the Constitution’s guarantee of

freedom from double jeopardy thus becomes a hollow

promise in Illinois, at least where administrative

prosecutions are concerned.

2 continued

petitioners submit, immaterial to this Court’s consideration of

the federal question raised here. The review provisions of the

Act expressly pertain only to final administrative decisions.

Throughout this ane, Se Illinois Attorney General has

been adamant in his insistence that the Act permits no

judicial review prior to a final order, and petitioners are not

aware that he is Paes to retreat from that position now.

The language o Illinois Supreme Court’s opinion

emphasized in the quotation above leaves little doubt that the

Court shares the view of the Attorney General. To “exhaust”

this “remedy”, petitioners would be compelled to seek a novel

construction of the Act in the face of statutory language and

judicial precedent to the contrary, or a declaration that the

Act is invalid for failure to make provision for interlocutory

appeals. This Court has said that a litigant will not be forced

to go to such lengths as a precondition to its consideration of

his federal claims. Mountain States Co. v. Comm'n, 299 U.S.

167, 170 (1936); P Tel. Co. v. yy = 265 U.S. 196,

205 (1924); Ohio V Co, v. Ben Avon Borough, 253 U.S.

287, 290-91 (1920). Cf. Marino v. Raven, 332 U.S. 561, 569-70

(1947) (Rutledge, J., concurring).

* Perhaps the most unfortunate aspect of this decision is that

the consequences of its limitation of the double jeopardy

defense are visited most heavily cn those most in need of its

protection—the accused against whom the state’s case is not

. A person against whom the state has prevailed might at

east find some comfort in securing after-the-fact judicial

acknowledgement that he should not have been fo to en-

dure a second prosecution. However, the person who

successfully defends himself, and who, therefore, presumably

would have no standing to seek judicial review, would be

vulnerable to any number of successive prosecutions, as long

as the state continued to fail to make out its case.

enfin

The federal guarantee of due process forbids the State

of Illinois to so exalt the procedural dictates of its

statutes and judicial decisions at the expense of

petitioners’ substantive constitutional rights. “Whether

acting through its judiciary or through its legislature, a

State may not deprive a person of all existing remedies

for the enforcement of a right, which the State has no

power to destroy, unless there is, or was, afforded to him

some real opportunity to protect it.” Brinkerhoff-Faris

Co. v. Hill, 281 U.S. 673, 682 (1930).4 In the often-quoted

words of Mr. Justice Holmes, “[wJhatever springes the

State may set for those who are endeavoring to assert

rights that the State confers, the assertion of federal

rights, when plainly and reasonably made, is not to be

defeated under the name of local practice.” Davis v.

Wechsler, 263 U.S. 22, 24 (1923). This Court has exer-

cised its jurisdiction in defense of this principle in a

variety of contexts. See, e.g., Henry v. Mississippi, 379

U.S. 443, 447 (1965); NAACP v. Alabama, 357 U.S. 449,

457-58 (1958); Hillsborough v. Cromwell, 326 U.S. 620,

624-26 (1946); Okla. Gas Co. v. Russell, 261 U.S. 290, 293

(1923); Missouri Pacific Ry. Co. v. Tucker, 230 U.S. 340,

347-49 (1913); Rogers v. Alabama, 192 U.S 226, 230

(1904). Cf. Liner v. Jafco, Inc., 375 U.S. 301, 304 (1964);

Lovell v. City of Griffin, 303 U.S. 444, 450 (1938); Love v.

' The petitioners in Brinkerhoff-Faris faced a dilemma only

ing less ious than that confronting petitioners in this

case. They brought a bill in equity to enjoin collection of a tax

they claimed violated their rights under the Equal Protection

Clause. The Missouri Supreme Court, reversing its prior rul-

ing to the contrary, ruled that the State Tax Commission had

wer to grant the relief sought in their bill, that they should

ave resorted to that administrative remedy, but now were

barred from doing so by laches. They claimed that their

rights under the Due Process Clause were violated by the Mis-

souri Court's ruling because it resulted in denying them any

hearing on the merits of their Equal Protection claim. This

Court agreed, and remanded the case to the Missouri

Supreme Court for consideration on the merits. 281 U.S. at

_—Y

Griffith, 266 U.S. 32, 33-34 (1924). See generally, Hill,

The Inadequate State Ground, 65 Colum.L.Rev. 943, 959-

80 (1965); Note, The Untenable Nonfederal Ground in the

Supreme Court, 74 Harv.L.Rev. 1375, 1387, passim,

(1961).

When the Illinois Pollution Control Board refused to

halt the penalty actions against petitioners then pending

before it, their last opportunity to invoke administrative

protection of their right to be relieved of an un-

constitutional second prosecution was exhausted. Under

the State’s Administrative Review Act their next oppor-

tunity to assert that defense would arise only after the

objectionable prosecutions were completed, and then

only if the final decision of the Board was adverse. Ac-

cordingly, petitioners pursued the only procedural

avenue open to them if they were to have any relief at

all—an independent action in the State circuit court to

invoke its traditional and inherent powers to issue an in-

junction or writ of prohibition. The Illinois Supreme

Court’s ruling that the circuit court was barred from

entertaining petitioners’ demand for such relief because

petitioners had not exhausted their remedies under the

Administrative Review Act by suffering the

prosecutions to a final unfavorable conclusion and seek-

ing review in the Appellate Court, amounts to nothing

less than a refusal by the State of Illinois to afford a

remedy for the enforcement of a right which the State

has no power to destroy.

Re OEP EEE —

=~ =

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment of the Supreme Court of Illinois.

Respectfully submitted,

R. R. McMAHAN

115 S. LaSalle Street

Chicago, Illinois 60603

Attorney for Petitioners

Rosert A. Kwott

Lorp, Bissett & Broox

115 S. LaSalle Street

Chicago, Illinois 60603

Of Counsel

APPENDIX

—la—

APPENDIX A

IN THE APPELLATE COURT OF ILLINOIS

No. 60865

BULK TERMINALS COMPANY et al.,

Plaintiffs-A ppellants,

Vv.

ENVIRONMENTAL PROTECTION AGENCY et al.,

Defendants-A ppellees.

First District (4th Division)—June 11, 1975.

Appeal from the Circuit Court of Cook County; the

Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE BURMAN delivered the opinion of the

court:

This is an appeal by the plaintiffs, Bulk Terminals

Company and Gerald L. Spaeth, from an order of the

Circuit Court of Cook County, dismissing their com-

plaint. The complaint requested the court to halt

proceedings pending before the Illinois Pollution Control

Board charging them with violations of the Illinois En-

vironmental Protection Act and air _ pollution

regulations.

Plaintiff, Bulk Terminals Company (hereinafter Bulk),

operates a bulk storage facility at 12200 South Stony

Island Avenue in Chicago. Plaintiff, Gerald L. Spaeth, is

—2a—

the president of the firm and is in charge of its daily

operations. For several months Bulk stored in its tanks a

chemical, silicon tetrachloride, which was owned by

Cabot Corporation. On April 26, 1974, a leak developed

in one of the storage tanks containing the chemical, and

as it reacted with the moisture in the air, it formed

hydrochloric acid vapor and silicon dioxide.

Thereafter the city of Chicago served Buik and Spaeth

with a series of complaints alleging violations of section

17—2.6 of the Municipal Code of the city of Chicago.'

The City alleged that the emissions of hydrochloric acid

vapor and silicon dioxide, commencing on April 26,

1974, and continuing through and including May 26,

1974, constituted “atmospheric” pollution in violation of

' Section 17—2.6 of the Municipal Code of Chicago (1973)

provides:

“It shall be unlawful within the City of Chicago and

within one mile of the corporate limits for any person,

owner, agent, operator, firm or corporation to permit to

cause, suffer or allow the discharge, emission or release

into the atmosphere from any source whatsoever of such

quantities of soot, fly ash, dust, cinders, dirt, oxides, gases,

vapors, odors, toxic or radioactive substances, waste, par-

ticulate, solid, liquid or gaseous matter or any other

materials in such place, manner or concentration as to

constitute atmospheric pollution.”

Section 17—2.1 defines “atmospheric pollution” as:

“The discharging from stacks, chimneys, exhausts, vents,

ducts, openings, buildings, structures, premises, open

fires, portable boilers, vehicles, processes, or any other

source, of any smoke, soot, fly ash, dust, cinders, dirt, nox-

ious or obnoxious acids, fumes, oxides, gases, vapors,

odors, toxic or radioactive substances, waste, particulate,

solid, liquid or gaseous matter, or any other materials in

such place, manner or. concentration as to cause injury,

detriment, nuisance, or annoyance to the public, or to en-

danger the health, comfort, repose, safety or welfare of the

public, or in such a manner as to cause or have a natural

aaa to cause injury or damage to business or proper-

y.

=

that section. The complaints were entitled “In the Name

and by the Authority of the People of the State of

Illinois—City of Chicago a municipal corporation, Plain-

tiff v. Bulk Terminals Company.”

On July 19, 1974, a trial was held in the Circuit Court

of Cook County and Bulk was found guilty of violating

section 17—2.6 on each and every day from April 26,

1974, up to and including May 9, 1974. The court as-

sessed fines for the violations, and Bulk has paid them.

On or before July 31, 1974, all silicon tetrachloride

previously stored by Bulk had been removed from the

premises.

Complaints were also filed against Bulk before the II-

linois Pollution Control Board (hereinafter Board) by

Citizens for a Better Environment (hereinafter CBE)

and the Environmental Protection Agency (hereinafter

EPA), defendants herein, in connection with the storage

tank leak. In the CBE’s complaint, Bulk is charged with

violations of section 9a) of the Illinois Environmental

Protection Act (Ill. Rev. Stat. 1973, ch. 111%, par.

1009(a) ) and related Rule 102 of chapter 2 of the Illinois

Pollution Control Board Rules and Regulations for caus-

ing air pollution as a result of the leak.? Gerald L.

2 Section 9 of the Environmental! Protection Act provides in

part:

“No person shall:

(a) Cause or threaten or allow the discharge or emis-

sion of any contaminant into the environment in any State

so as to cause or tend to cause air pollution in Illinois,

either alone or in combination with contaminants from

other sources, or so as to violate regulations or standards

adopted by the Board under this Act; ce

(b) Construct, install, or operate any equipment, facili-

ty, vehicle, vessel, or aircraft capable of causing or con-

tributing to air pollution or Songnee to prevent air pollu-

tion, of any type designated by Board regulations, without

a permit granted by the Agency, or in violation of any

conditions imposed by such permit;”

(Footnote continued on following page)

—4a—

Spaeth, Bulk’s president, is named as a co-defendant in

the CBE’s compiaint, and is alleged to have been respon-

sible for the maintenance of Bulk’s storage facilities. In

the EPA complaint Bulk is also charged with violations

of section 9(a) of the Environmental Protection Act, and

with a violation of Rule 102 of chapter 2 of the Rules

and Regulations. Both actions were consolidated before

the Board. Bulk and Spaeth filed answers to the com-

plaints with the Board and therein set forth facts

relating to the prosecution by the City of Chicago, alleg-

ing thereby that the prosecution pending before the

Board was barred by the doctrine of double jeopardy

and res judicata. In addition, Bulk and Spaeth filed

before the Board a motion to dismiss and an amended

motion to dismiss predicated on the above defenses. The

amended motion to dismiss was denied by the Board on

September 5, 1974.

Thereafter Bulk and Spaeth filed an action in the cir-

cuit court praying for a declaratory judgment with in-

junctive relief and a writ of prohibition against the

2 continued

Section 3 of the Act contains the following definitions:

* * *

(b) “Air Pollution” is the presence in the atmosphere of

one or more contaminants in sufficient quantities and of

such characteristics and duration as to be injurious to

human, plant, or animal life, to health, or to property, or

to unreasonably interfere with the enjoyment of life or

property.

** *

(d) “Contaminant” is any solid, liquid, or us

matter, any odor, or any form of energy, from whatever

source.” Ill. Rev. Stat. 1973, ch. 111%, par. 1003(b)(d).

Other pllegee violations in the CBE complaint relate to

plaintiffs’ failure to obtain an “operation permit” for a “new

emission source,” i.e., the leak.

—5ja—

EPA, the CBE, and the Board. By this action they

sought to terminate the CBE and EPA actions before

the Board. It was contended that the State of Illinois

should be prevented from twice prosecuting them for

the same offense. The trial court held, on defendants’

motion to dismiss, that the action was premature since

the plaintiffs had not exhausted all remedies under the

Environmental Protection Act and the Administrative

Review Act. The plaintiffs action was therefore dis-

missed, and this appeal followed.

The plaintiffs, herein Bulk and Spaeth, contend that

both the Illinois and United States constitutional

safeguards against double jeopardy (U.S. Const. amends.

V and XIV; Ill. Const. art. I, sec. 10 (1970) ), and the

doctrine of res judicata, preclude the actions pending

before the Pollution Control Board. Double jeopardy is

said to have applicability because the plaintiffs are be-

ing exposed to punishment for alleged unlawful conduct

which they have already been punished for once by the

State of Illinois through its political subdivision, the city

of Chicago. Res judicata is said to have applicability

because both the city action and the Board actions arise

from the same subject matter, are in essence the same

cause of action, and involve the same parties. It is

further urged that this is a proper case for the exercise

of the circuit court’s power to issue a writ of prohibition

or to order injunctive relief, and that the relief re-

quested is not precluded by the failure to obtain first a

final order from the Board.

The defendants respond first that the relief sought is

premature, and that the proper procedure is an appeal

to this court from a final decision of the Board. It is

further urged by the defendants that, in any event, the

constitutional mandate against double jeopardy and the

doctrine of res judicata are for various reasons in-

applicable as a bar to the Board proceedings.

—6a—

We hold herein that, in view of the previous prosecu-

tion and fine under the city ordinance, the pending

proceedings before the Board are barred either under a

theory of double jeopardy or res judicata, and that the

request for relief in the circuit court was not premature.

We accordingly reverse the order of the circuit court.

As indicated, the circuit court dismissed the plaintiffs’

complaint without reaching the merits of the controver-

sy because it viewed the action as premature in that

plaintiffs did not exhaust their administrative remedies.

This threshold procedural issue must first be given some

attention.

The ordinary procedure for reviewing a decision of the

Pollution Control Board is pursuant to the Ad-

ministrative Review Act (Ill. Rev. Stat. 1973, ch. 110,

par. 264 et. seq.).3 Section 2 thereof provides in part:

“This Act shall apply to and govern every action

to review judicially a final decision of any ad-

ministrative agency where the Act creating or con-

ferring power on such agency, by express reference,

adopts the provisions of this Act. In all such cases,

any other statutory, equitable or common law mode

of review of decisions of administrative agencies

heretofore available shall not be employed after the

effective date hereof.” Ill. Rev. Stat. 1973, ch. 110,

par. 265.

The Administrative Review Act therefore applies

where a final decision of an administrative agency has

been made; and other modes of review in such cases are

abolished. (People ex rel. Carpentier v. Goers, 20 IIl.2d

272, 170 N.E.2d 159.) In the instant action however,

* The procedure is modified somewhat by section 41 of the

Environmental Protection Act, which provides for direct

review in the appellate court rather than in the circuit court

first. Ill. Rev. Stat. 1973, ch. 111%, par. 1041.

—T7a—

plaintiffs seek in effect to prevent the State of Illinois

from twice prosecuting and fining them for the same

offense. We feel that to allow a remedy in a judicial

forum only after the fact of double prosecution would be

improper and could not be mandated by the Ad-

ministrative Review Act. That act, like any statute,

should be interpreted so as to promote its essential pur-

poses and to avoid, if possible, a construction that would

raise doubts as to its validity. (Craig v. Peterson, 39 Ill.

2d 191, 201, 233 N.E.2d 345, 351.) Similar exceptions to

ordinary administrative review have been sanctioned.

See People ex rel. Hurley v. Graber, 405 Ill. 331, 90

N.E.2d 763; W. F. Hall Printing Co. v. Environmental

Protection Agency, 16 Ill.App.3d 864, 306 N.E.2d 5965.

In regard to the merits, we emphasize first that both

the action filed by the city and by the EPA and CBE

similarly alleged that beginning with April 26, 1974, a

leak developed in one of the storage tanks on Bulk’s

premises and by virtue of the leak the silicon tetra-

chloride contained in the tank reacted with the moisture

in the air to produce certain emissions of hydrochloric

acid vapor and silicon dioxide. This was alleged to have

polluted the air or atmosphere as prohibited by the

Environmental Protection Act and the Municipal Code

of Chicago. A review of the statute and ordinance, set

out in footnotes above, will indicate that there is a

substantial similarity between the two. We therefore are

of the opinion that the plaintiffs are being exposed to

double jeopardy. Cf. Waller v. Florida, 397 U.S. 387;

People v. Allison, 46 Ill.2d 147, 263 N.E.2d 80.

In Waller v. Florida, the petitioner had been convicted

and sentenced by the city of St. Petersburg for violating

city ordinances against destruction of city property and

disorderly breach of the peace when he and a group of

others removed and damaged a mural which had been

—8a—

affixed to a wall inside the city hall. Subsequently the

State of Florida charged petitioner with grand larceny,

and it was conceded that the charge was based on the

same acts as were involved in the city ordinance

violations. The United States Supreme Court held that

successive State and municipal prosecutions for the

same conduct constituted double jeopardy. It found

relevant certain language in its opinion in Reynolds v.

Sims, 377 U.S. 533, 575, to which we also subscribe:

“Political subdivisions of States—counties, cities

or whatever—never were and never have been

considered as sovereign entities. Rather, they have

been traditionally regarded as subordinate govern-

mental instrumentalities created by the State to

assist in the carrying out of state governmental

functions.”

In the case here, the State has delegated certain of its

authority to protect the environment to various subor-

dinate governmental instrumentalities, e.g., municipal

corporations, the Pollution Control Board, the EPA.‘

These are not sovereign entities; they are the State of

Illinois acting through different agencies. The CBE,

although not a State agency as such, by its actions

before the Board, purports to represent the people of the

State of Illinois under a unique provision of the

Environmental Protection Act authorizing such private

initiation of enforcement actions. (Ill. Rev. Stat. 1973,

ch. 111%, par. 1031(b).) In effect the CBE is acting as a

private attorney general, and we view its position to be

no different for our purposes here than the State

agencies empowered to deal with pollution matters. One

prosecuted should not lose the protection made ap-

plicable here because of the State’s choice of the manner

' We again note that the complaints filed by the city were

entitled “In the Name and by the Authority of the People of

the State of Illinois—City of Chicago a municipal corporation,

Plaintiff v. Bulk Terminals Company.” -

eae teeter ee mo

era TY AS Ee CR nee yo

~~

of commencing the action. We further note that ultimate

enforcement of any Board order entered in the action

commenced by the CBE would be by means of an action

by the State’s Attorney or Attorney General in the

Circuit Court of Cook County, which action would not be

brought in the name of the CBE but rather in the name

of the People of the State of Illinois. (Ill. Rev. Stat. 1973,

ch. 111%, par. 1042(e).) The State, having once placed

plaintiffs in jeopardy, cannot do so again through the

device of a statutory scheme of citizen-initiated adminis-

trative action for penalties.

The defendants center their entire argument regard-

ing double jeopardy on the premise that it is inappli-

cable because the action before the Board® does not seek

the imposition of “criminal” sanctions. (Helvering v.

Mitchell, 303 U.S. 391.)

We first point out that one need not be threatened

with more than a mere fine for the principle of double

jeopardy to apply. In People v. Allison, 46 I[1l.2d 147, 263

N.E.2d 80, for example, the State unsuccessfully at-

tempted to distinguish Waller v. Florida, 397 U.S. 387,

discussed above, by claiming that double jeopardy was

not invocable since one of the prosecutions involved in

Allison had been for the violation of a municipal or-

dinance which was punishable only by fine.

5 The nature of the city fine is not focused upon by the defen-

dants. The language of the ordinance elucidates this

somewhat in indicating the intent to punish violators:

“Any person found guilty of violating * * * any of the

provisions of this Article II * * * upon conviction thereof

shall be punished by a fine of not less than One Hundred

Dollars nor more $300.00 for the first offense, and

not less than .00 nor more than $500.00 for the second

and each subsequent offense, in i J 180 day period;

provided, however, that all actions seeking the imposition

of fines only shall be filed as quasi criminal actions sub-

isi f the Illinois Civil Practice Act

aad Emphacis added.) Chicago Municipal Code sec.

17—2.62 (1973)

—10a—

We must acknowledge, however, that the Illinois

Supreme Court has, in other contexts, labeled the fines

imposed by the Pollution Control Board pursuant to

statutory authority as “civil” in nature. (City of Mon-

mouth v. Pollution Control Board, 57 Ill. 2d 482, 313

N.E. 2d 161; City of Waukegan v. Pollution Control

Board, 57 Ill. 2d 170, 311 N.E. 2d 146.) In City of

Waukegan, the Illinois Supreme Court considered

whether the Board could be empowered to assess

monetary penalties at all, and held that the authority

given the Board to impose such penalties does not violate

the constitutional separation of powers or amount to an

improper delegation. In City of Monmouth, the court

deemed tge fines authorized as noncriminal in holding

that certain procedural safeguards applicable to crim-

inal proceedings are not applicable in proceedings

before the Board.

Notwithstanding those decisions, we do not feel

constrained to discard the safeguard against double

jeopardy in the present case, where the imposition of a

second penalty, be it labeled “civil” or “criminal” for

other purposes, is being threatened by the State for the

same alleged wrong. We hold only this: considering the

nature of the violation alleged here, a previous pro-

secution and fine imposed by the city of Chicago pur-

suant to its ordinance precludes the threat of a second

fine by the Board based on the same conduct.

In United States v. La Franca, 282 U.S. 568, the

defendant was first convicted and fined in a criminal

prosecution under the National Prohibition Act for

unlawful sales of intoxicating liquors. Subsequently he

was sued by the United States in a civil action for

nonpayment of taxes and penalties with respect to the

same conduct—unlawful sales of intoxicating liquors.

Pleas of former jeopardy and res judicata were over-

ruled by the district court in the civil action and

A EN a OF Na atk a

is ee

PD Mente Hts oe nr

—lla—

judgment was entered for the full amount sued for. The

court of appeals reversed and was affirmed by the

United States Supreme Court. Although the case was

ultimately resolved by the court’s construction of a

statute involved barring double “prosecution,” the prob-

lem of double jeopardy posed by the facts, and analogous

to the instant case, was discussed. The court first con-

sidered whether the designation of the amount of money

exacted in the civil proceeding as a “tax” was deter-

minative, and stated:

“A tax is an enforced contribution to provide for the

support of government; a penalty, as the word is

here used, is an exaction imposed by statute as

punishment for an unlawful act. The two words are

not interchangeable, one for the other. No mere

exercise of the art of lexicography can alter the

essential nature of an act or a thing; and if an

exaction be clearly a penalty it cannot be converted

into a tax by the simple expedient of calling it such.

That the exaction here in question is not a true tax,

but a penalty involving the idea of punishment for

infraction of the law, is settled * * *.” 282 U.S. at

572.

The court then posed the following question:

“Respondent alreauy had been convicted and pun-

ished in a criminal prosecution for the identical

transactions set forth as a basis for recovery in the

present action. He could not again, of course, have

been prosecuted criminally for the same acts. Does

the fact that the second case is a civil action, under

the circumstances here disclosed, alter the rule?”

282 U.S. at 573.

The court, adopting the following language from an

earlier case (United States v. Chouteau, 102 U.S. 603,

611), resolved the question with an analysis which we

find quite relevant in the instant case:

“‘Admitting that the penalty may be recovered in a

civil action, as well as by a criminal prosecution, it

is still as a punishment for the infraction of the law.

——

The term “penalty” involves the idea of punishment,

and its character is not changed by the mode in

which it is inflicted, whether by a civil action or a

criminal prosecution. * * * [The defendant] has

been punished in the amount paid upon the settle-

ment for the offense with which he was charged,

and that should end the present action, according to

the principle on which a former acquittal or convic-

tion may be invoked to protect against a second

punishment for the same offence. To hold otherwise

would be to sacrifice a great principle to the mere

form of procedure, and to render settlements with

the government delusive and useless.’” 282 U.S. at

573-74. (Emphasis added.)

The court continued in its own language that “an action

to recover a penalty for an act declared to be a crime is,

in its nature, a punitive proceeding although it take the

form of a civil action; and the word ‘prosecution’ is not

inapt to describe such an action.” 282 U.S. at 575.

We thus feel that the designation of the threatened

fines in the case at bar as “civil” for other purposes,

such as for determining whether certain criminal

procedural safeguards are required in the proceeding

culminating in the fine (City of Monmouth v. Pollution

Control Board, 57 Ill. 2d 482, 313 N.E. 2d 161) is not

determinative here; and we are likewise of the opinion

that “to hold otherwise would be to sacrifice a great

principle to the mere form of procedure.” The city

imposed a fine for the storage tank leak, and its

proceedings were a matter of public record. The Board

proceedings, like the city prosecution, may culminate in

the imposition of a monetary penalty, after the fact, for

substantially the same alleged violation. Such a practice

smacks of fundamental unfairness. The source of the

alleged air pollution has long since been eliminated, and

no threat to the environment presently exists. The

ee,

affine

objective of penalization once accomplished should end

the ™ atter whether the actions are designated criminal

or civil. Multiple actions for the same offense should be

discouraged or consolidated in some manner by the

State. The jurisdiction of a court of equity to restrain

the maintenance of vexatious or harassing litigation is

well established. 42 Am. Jur. 2d IJnjunctions sec. 206

(1969); 43 C.J.S. Injunctions sec. 40(h) (1945).

In closing, we also find that the related concept of res

judicata may well have applicability here. In order to

rely upon a former adjudication as a bar under this

doctrine, it must be determined that the cause of action

is the same in both proceedings, the two actions are

between the same parties or their privies, and the

former adjudication was a final judgment or decree

upon the merits by a court having jurisdiction. (People v.

Kidd, 398 Ill. 405, 408-09, 75 N.E.2d 851, 854.) The doc-

trine acts as a bar to the consideration not only of

questions actually litigated and decided, but to all

grounds of recovery or defense which might have been

presented in the first proceeding. (People v. Kidd, 398

Ill. at 408, 75 N.E. 2d at 853-54.) There is no dispute

that the judgment entered in the city action was final

and that the court had jurisdiction to render it. Further,

as we indicated, the violations alleged are substantially

similar in both cases, i.e., causing or allowing air or at-

mospheric pollution as a cor equence of the silicon

tetrachloride leak. The slight difference in the language

of the statutes does not change the nature of the cause of

action for our purposes here. Also, for reasons analogous

to those discussed earlier, both the city and Board pro-

ceedings involved the same parties or their privies. (See

Healy v. Deering, 231 Ill. 423, 83 N.E.2d 226.) We dis-

agree with the defendants’ strenuous contention that the

—l4a—

difference in remedy or amount of the penalties

authorized in the city ordinance and the State statute

prohibits the application of res judicata, or compels the

conclusion that the legislative purpose behind the En-

vironmental Protection Act will be frustrated by barr-

ing the Board proceeding here. It cannot be emphasized

too strongly that all of the issues regarding the storage-

tank-leak incident could and should have been resolved

in one action by the People of the State of Illinois. The

same ultimate purpose that was sought by the city—the

protection of the environment—is being sought by the

defendants here. As we have said, multiple actions for

the same pollution violation should therefore be dis-

couraged, or consolidated in some manner by the State.

Fairness and justice so dictate.

For the reasons given, the judgment of the circuit

court is reversed and the cause remanded with di-

rections to enter an order consistent with the views ex-

pressed herein.

REVERSED and REMANDED.

DIERINGER, P. J., and JOHNSON, J., concur.

—1l5a—

APPENDIX B

IN THE SUPREME COURT OF ILLINOIS

Nos. 47746, 47754 cons.

BULK TERMINALS COMPANY et al.,

Appellees,

Vv.

THE ENVIRONMENTAL PROTECTION AGENCY et al.,

Appellants.

Opinion filed Sept. 20, 1976.—Rehearing denied Dec. 2, 1976.

Appeal from the Appellate Court for the First

District; heard in that court on appeal from the Circuit

Court of Cook County; the Hon. Arthur L. Dunne, Judge,

presiding.

Mr. JUSTICE GOLDENHERSH delivered the opinion of

the court:

Plaintiffs, Bulk Terminals Company, hereafter Bulk,

and Gerald L. Spaeth, its president, appealed from the

judgment of the circuit court of Cook County dismissing

their action for injunction, or alternatively prohibition,

seeking to terminate proceedings commenced by defen- .

dants Environmental Protection Agency and Citizens for

a Better Environment before the defendant Pollution

—]6a—

Control Board. The appellate court reversed (29 Ill. App.

3d 978) and we allowed petitions for leave to appeal filed

by defendant Citizens for a Better Environment (No.

47746) and jointly by the other defendants (No. 47754).

In their complaint for injunction or prohibition

plaintiffs alleged that a leak in a storage tank situated

at Bulk’s premises caused the emission of hydrochloric

acid vapor and silicon dioxide; that the city of Chicago

filed complaints charging Bulk with violations of section

17—2.6 of the Chicago Municipal Code; that Bulk was

tried and found guilty of violations of the ordinance and

that fines were assessed and paid; that defendant Citi-

zens for a Better Environment filed a complaint before

the defendant Pollution Control Board charging plain-

tiffs with violations of the Illinois Environmental Pro-

tection Act and of certain air pollution regulations; that

defendant Environmental Protection Agency also filed a

complaint before the Pollution Control Board charging

similar violations of the Act and the regulations; that

the violations charged in the proceedings before the

Pollution Control Board involved the same emissions on

the same dates as those for which Bulk was prosecuted

under the Chicago ordinance; that plaintiffs filed

answers to the complaints before the Pollution Control

Board affirmatively setting forth “the facts in support of

their constitutional and common law defenses” and a

motion and amended motion to dismiss the proceedings;

that the defendant Pollution Control Board has denied

their motions to dismiss and to stay discovery; and that

unless the proceedings before the Pollution Control

Board are enjoined they will suffer irreparable loss and

damage. In a second count they repeated the allegations

and sought as alternative relief the issuance of a writ of

prohibition. It is also alleged in the complaint that:

—17a—

“10. On or before July 31, 1974, all silicon

tetrachloride previously stored on the premises of

Bulk had been removed by the owner thereof and

transported away from Cook County, Illinois. Bulk

has no present intention to store in the future

silicon tetrachloride on its premises in Chicago,

Illinois.”

The circuit court dismissed the suit on the ground that

“the complaint fails to establish that plaintiffs have

exhausted their remedies under the Environmental

Protection Act and the Administrative Review Act

***” The appellate court, although recognizing that

under the Administrative Review Act only final deci-

sions of administrative agencies are reviewable, stated

that in this action in which “* * * plaintiffs seek in

effect to prevent the State of Illinois from twice

prosecuting and fining them for the same offense * * *

to allow a remedy in a judicial forum only after the fact

of double prosecution would be improper and could not

be mandated by the Administrative Review Act.” (29 IIl.

App. 3d 978, 982.) The appellate court held that the

proceedings before the Pollution Control Board were

barred by the prior prosecution under the Chicago

ordinance and reversed the judgment.

Although the parties and amicus curiae, the Illinois

Manufacturer’s Association, have briefed and argued a

number of questions we need consider only whether

plaintiffs, prior to seeking judicial relief, were required

to exhaust the administrative remedies provided in

section 41 of the Environmental Protection Act (Ill. Rev.

Stat. 1975, ch. 111%, par. 1041) and the Administrative

Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et

seq.). It is defendants’ position that the circuit court “is

without jurisdiction to review interlocutory orders of the

Pollution Control Board.” Plaintiffs contend that “this is

—18a—

a proper case for the exercise of the circuit court’s

power to issue a writ of prohibition or to order

injunctive relief. Plaintiffs have no other remedy for the

wrongs being done to them.” They argue that “judicial

review of a final order of the Pollution Control Board is

inadequate relief because the guarantee against double

jeopardy precludes a second prosecution as well as a

second punishment,” that “res judicata not only pre-

cludes multiple liability, but subsequent actions to

impose that liability as well” and that “the Administra-

tive Review Act does not‘bar the relief plaintiffs seek; if

it did, it would be unconstitutional.”

In discussing the doctrine of exhaustion of remedies,

in Illinois Bell Telephone Co. v. Allphin, 60 Ill. 2d 350,

we said:

“* * * the doctrine of exhaustion has long been a

basic principle of administrative law—a party

aggrieved by administrative action ordinarily can-

not seek review in the courts without first pursuing

all administrative remedies available to him.

(Myers v. Bethlehem Shipbuilding Corp. (1938), 303

U.S. 41, 82 L. Ed. 638, 58 S. Ct. 26.) The rule is the

counterpart of the procedural rule which, with

certain exceptions, precludes appellate review prior

to a final judgment in the trial court, and the

reasons for its existence are numerous: (1) it

allows full development of the facts before the

agency; (2) it allows the agency an opportunity to

utilize its expertise; and (3) the aggrieved party

may succeed before the agency, rendering judicial

review unnecessary. 2 F. per, State Administra-

tive Law 572-574 (1965); L. Jaffe, Judicial Control

of Administrative Action 424-426 (1965); 3 K. Davis,

Administrative Law Treatise secs. 20.01-20.10

(1958), and 1970 Supplement at 642-669.

All jurisdictions have recognized that the exhaus-

tion doctrine, if strictly applied, could sometimes

produce very harsh and inequitable results. While

—19a—

our courts have required comparatively strict

compliance with the exhaustion rule, exceptions

have been recognized where an ordinance or statute

is attacked as unconstitutional in its entirety (Bright

v. City of Evanston (1956), 10 Ill. 2d 178), or where

multiple remedies exist before the same zoning

board and at least one has been exhausted (Herman

v. Village of Hillside (1958), 15 Ill. 2d 396), or

where irreparable harm will result from further

pursuit of administrative remedies. (Peoples Gas

Light and Coke Co. v. Slattery (1939), 373 Ill. 31.) It

is not our intention by this opinion to affect these

existing exceptions.

These exceptions to the exhaustion doctrine have

been fashioned in recognition of the time-honored

rule that equiiable relief will be available if the

remedy at law is inadequate. In those situations

covered by these exceptions, further recourse to the

administrative process would not, or cannot, for a

variety of reasons, provide adequate relief.” 60 III.

2d 350, 357-9.

The circuit court entered judgment upon allowance of

defendants’ motion to dismiss and all facts properly

pleaded in the complaint are taken as true. (Acorn Auto

Driving School, Inc. v. Board of Education, 27 Ill. 2d 93,

96.) The question whether, upon those facts, the

proceedings before the Pollution Control Board are

barred by either the constitutional proscription of

double jeopardy or the doctrine of res judicata is one of

law which we need not and do not decide. Other than a

conclusional allegation in the complaint that unless

relief is granted they will suffer irreparable harm,

plaintiffs do not contend that under the facts alleged

this case falls within one of the exceptions recognized in

Allphin, and we are presented the narrow question

whether the allegation of double jeopardy, or alterna-

tively, res judicata, should invoke an additional excep-

tion to the requirement that administrative remedies be

exhausted prior to seeking judicial relief.

—20a—

It is clear that the motions to dismiss filed before

defendant Pollution Control Board were the appropriate

method by which to present the issue and that the Board

had jurisdiction to decide the question. (Sugden v.

Department of Public Welfare, 20 Ill. 2d 119, 121; People

ex rel. United Motor Coach Co. v. Carpentier, 17 Ill. 2d

303, 305.) Plaintiffs, conceding that the order denying

the motions to dismiss was interlocutory in nature,

argue that the denial of the plea of double jeopardy

served to “finally determine rights separate from and

collateral to the main action, determine collateral rights

that are too important to be denied review and

determine rights that will have been lost, probably

irreparably, after judgment has been entered.” In

“support of their contention that an interlocutory order

denying a plea of double jeopardy is appealable they

cite United States v. Beckerman, 516 F.2d 905 (2d Cir.

1975) wherein, at page 906, the court said:

“The issue of double jeopardy is collateral to the

determination of whether the accused is innocent or

guilty of the offense for which he has been indicted.

The constitutional protection against being twice

_put in jeopardy for the same offense is a ‘valued

right,’ Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct.

834, 93 L. Ed. 974 (1949), that is too important to be

denied review. The protection against double jeop-

ardy guards ‘not against being twice punished, but

against being twice put in jeopardy,’ United States

v. Ball, 163 U.S. 662, 669, 16 S. Ct. 1192, 1194, 41

L. Ed. 300 (1896). The right will be invaded if an

accused, who has properly invoked the Fifth

Amendment protection against being twice put in

jeopardy, is called upon to suffer the pain of two

trials. Green v. United States, 355 U.S. 184, 187, 78

S. Ct. 221, 2 L. Ed. 2d 199 (1957).

If an accused is to be afforded ‘the full protection

of the double jeopardy clause, a final determination

of whether jeopardy has attached to the previous

trial must, where possible, be determined prior to

any retrial.’ United States v. Lansdown, 460 F.2d

—2la—

164, 171 (4th Cir. 1972). Contra, Gilmore v. United

States, 264 F.2d 44 (5th Cir. 1959), cert. denied, 359

U.S. 994, 79 S. Ct. 1126, 3 L. Ed. 2d 982 (1959). The

reasoning of the opinion in Lansdown is persuasive

here. We conclude that we have jurisdiction to

review the denial of the defendant’s motion to

dismiss the indictment on the predicate of the

double jeopardy clause.”

The situation in Beckerman, however, is clearly

distinguishable. Had plaintiffs, despite the statutory

provision limiting review to “final” orders, sought review

of the interlocutory order of the Pollution Control Board

denying their motions, this case would present a

question similar to that involved in Beckerman. This,

however, they did not do. We note parenthetically that

the Court of Appeals for the Fifth Circuit has decided

the question contrary to Beckerman (see United States v.

Bailey (1975), 512 F.2d 833; Gilmore v. United States

(1959), 264 F.2d 44) and that in People v. Miller, 35 Il.

2d 62, it was held “that no appeal lies from an interlocu-

tory order in the absence of a statute or rule specifically

authorizing such review” (35 IIl. 2d 62, 67). We note, too,

that a panel of the Second Circuit Court of Appeals in

United States v. Alessi (July 7, 1976), 19 Crim. L. Rptr.

2375, although stating that it would prefer to follow

Gilmore, considered itself compelled to follow Becker-

man.

We conclude, for the reason stated, that this record

presents no question of the appealability of an interlocu-

tory order and that the complaint failed to state facts

which would warrant an exception to the exhaustion

doctrine. The judgment of the appellate court is

therefore reversed and the judgment of the circuit court

of Cook County, dismissing the action, is affirmed.

APPELLATE COURT REVERSED;

CIRCUIT COURT AFFIRMED.

—22a—

APPENDIX C

In The

SUPREME COURT OF ILLINOIS

[MANDATE]

BE IT REMEMBERED, that, to-wit: on the 20th

day of September, A.D. 1976, the same being one of the

days of the term of Court aforesaid, the following

proceedings were by said Court, had and entered of

record, to-wit:

No. 47754

BULK TERMINALS COMPANY and GERALD L. SPAETH,

Appellees,

v.

ENVIRONMENTAL PROTECTION AGENCY, RICHARD H.

BRICELAND, Director of the Environmental Protection

Agency, CITIZENS FOR A BETTER ENVIRONMENT,

POLLUTION CONTROL BOARD OF THE STATE OF IL-

LINOIS, and JACOB D. DUMELLE, RONALD A. HENss,

SIDNEY M. MARDER, RUSSELL T. ODELL and ROGER G.

SEAMAN, members of the Pollution Control Board of

the State of Illinois,

Appellants.

Appeal from Appellate Court First District

60865—-74 L 14413

ee ee

—23a—

And now, on this day, this cause having been argued

by counsel, and the Court, having diligently examined

and inspected as well the record and proceedings of the

Appellate Court, First District, as the matters and

things therein assigned for error, and now, being suf-

ficiently advised of and concerning the premises, are of

the opinion that in the record and proceedings aforesaid,

and in the rendition of the judgment of the Appellate

Court, First District, there is manifest error.

THEREFORE, it is considered by the Court that for

that error and others in the record and proceedings

aforesaid, the judgment of the Appellate Court, First

District, in this behalf rendered, BE REVERSED, AN-

NULLED, SET ASIDE AND WHOLLY FOR

NOTHING ESTEEMED.

And the Court having diligently examined and in-

spected as well the record and proceedings of the Circuit

Court of Cook County as matters and things therein

assigned for error, and now, being sufficiently advised

of and concerning the premises for that it appears to the

Court now here, that neither in the record and

proceedings aforesaid, nor in the rendition of the judg-

ment of the Circuit Court of Cook County is there

anything erroneous, vicious or defective, and in that

record there is no error.

THEREFORE, it is considered by the Court that the

judgment of the Circuit Court of Cook County, aforesaid,

BE AFFIRMED IN ALL THINGS AND STAND IN

FULL FORCE AND EFFECT, notwithstanding the

said matter and things therein assigned for error.

—24a—

APPENDIX D

In The

SUPREME COURT OF ILLINOIS

[ORDER]

BE IT REMEMBERED, that, to-wit: on the 2nd day

of December, A.D. 1976, the same being one of the days

of the term of Court aforesaid, the following proceedings

were, by said Court, had and entered of record, to-wit:

Nos. 47746, 47754 Cons.

BULK TERMINALS COMPANY, et al.,

Appellees,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al., etc., et al.,

Appellants.

Appeal from Appellate Court, First District

60865—74 L 14413

And now, on this day, the Court having duly con-

sidered the petition for rehearing filed herein, and bein

now fully advised of and concerning the premises, doth

overrule the prayer of the petition and denies a rehear-

ing in this cause.

—225a—

APPENDIX E

In The

SUPREME COURT OF ILLINOIS

BULK TERMINALS COMPANY, et al..

Plaintiffs-A ppellees,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Defendants-A ppellants.

ORDER

This cause coming on to be heard on motion of

Plaintiffs-Appellees, Bulk Terminals Company and Ger-

ald L. Spaeth, requesting an order staying the issuance

of this Court's mandate, due notice having been given

and the Court being fully advised in the premises:

IT IS HEREBY ORDERED that the issuance of the

mandate in this cause be stayed until the Supreme

Court of the United States issues its ruling on Plaintiffs-

Appellees’ Petition for a Writ of Certiorari.

DATED: December 7, 1976

ENTER:

/s/ Daniel P. Ward

—26a—

APPENDIX F

IN THE SUPREME COURT OF ILLINOIS

Nos. 47746, 47754, cons.

BULK TERMINALS COMPANY, et al.,

Appellees,

Vv.

THE ENVIRONMENTAL PROTECTION AGENCY, et al.,

Appellants.

Petition for Rehearing of Bulk Terminals

Company and Gerald L. Spaeth

[Excerpts]

In this landmark decision the Court’s opinion fails to

disclose it has considered fully the constitutional ramifi-

cations of its ruling, which marks a substantial change

—27a—

in Illinois law and will have a dramatic impact on the

constitutional rights of litigants before administrative

agencies.

In its opinion in this case this Court has placed

procedural form ahead of the Fifth and Fourteenth

Amendments to the United States Constitution. At page

2 of its slip opinion, the Appellate Court is quoted as

stating “. . . to allow a remedy in a judicial forum only

after the fact of double prosecution would be improper

and could not be mandated by the Administrative

Review Act.” (Emphasis supplied.) Nevertheless, this

Court erroneously has viewed the determinative issue in

this case merely as one of exhaustion of administrative

remedies. As a consequence of this misconception on the

part of the Court, the laws of Illinois no longer provide

any meaningful procedural vehicle for persons seeking

to invoke the constitutional protection against being

placed twice in jeopardy by state prosecutions.

The action brought before Judge Dunne in the special

remedies court in the Circuit Court of Cook County was

not an interlocutory appeal. It was an action to halt a

proceeding that violated plaintiffs’ constitutional rights

each day it continued. Since the Pollution Control Board

actions against the plaintiffs are barred by the prohibi-

tion against double jeopardy, the only significant order

entered by the Board was its order denying plaintiffs’

motion to dismiss. Denial of that motion marked the end

of administrative remedies available to plaintiffs to

protect their right to be free from the burden of

defending the actions before the Board. And, under law

heretofore well established, even that motion was

unnecessary, except as a means of giving notice to the

government that plaintiffs’ constitutional rights were

being infringed.

Since neither the Environmental Protection Act nor

the Administrative Review Act applies in these circum-

stances, the plaintiffs resorted to fundamental remedies

at common law. This Court’s decision says that under

Illinois law there is no way to raise questions of whether

a constitutional right is being infringed by the conduct

of an administrative agency until it enters a final order.

Thus Illinois law affords no meaningful due process

resort for the correction of abuses of individual rights by

administrative agencies. The Court does not suggest that

the rights plaintiffs have lost here are unimportant, only

that there appears to be no judicial machinery available

to vindicate them.

* * *

Finally, in its quotation from Jilinois Bell Telephone

Co. v. Allphin, 60 Ill. 2d 350 (1975), the reasons

supporting the exhaustion rule were discussed, but the

Court in the text of this opinion refuses to recognize that

none of these reasons apply in this case. In discussing the

traditionally recognized exceptions to that rule, the

Court also fails to note that conduct violating an

individual’s constitutional rights, as in this case, consti-

tutes an irreparable injury per se. (See plaintiffs’ brief,

p. 71.) Therefore, the Court has failed to recognize that

the collateral attack of the Board’s proceeding made by

the plaintiffs through this suit is one that cannot be

denied a hearing. The courts of Illinois cannot constitu-

tionally refuse to hear this claim because in the final

analysis the doctrine of exhaustion of administrative

remedies cannot take precedence over the United States

Constitution.

—29a—

This decision should not be allowed to stand for the

proposition that plaintiffs can be denied due process of

law and violation of their right to be free from double

jeopardy under the statutory and common law in

Illinois. This opinion does away with a substantial aspect

of the plaintiffs’ right to be free from double jeopardy

and the law of Illinois is stated to be that the double

jeopardy safeguards can and have been eroded through

statutory construction and a restrictive application of

the doctrine of exhaustion of administrative remedies.

For the foregoing reasons the Court should order a

rehearing in this case. -