# Petition — Bulk Terminals Co. v. Environmental Protection Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 954

## Text

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. -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1366%3A1. Public record. Not legal advice.