Reply Brief — Goldstein v. Collin

No. 77-1788

Iu the q

Supreme Court of the United States

Srrinc Term, 1978

SOL GOLDSTEIN, on his own behalf and on behalf of a class

similarly situated,

Petitioner, |

vs.

FRANCIS JOSEPH COLLIN, a/k/a FRANK COLLIN, and all

persons acting in concert with him under the name of

The National Socialist Party of America,

Respondents.

On Petition for Writ of Certiorari to the

supreme Court ol Illinois

PETITIONER’S REPLY BRIEF ON RESPONDENTS’

SUGGESTION OF MOOTNESS

JEROME H. TORSHEN

11 South LaSalle Street

Chicago, Illinois 60603

ELLIOT L. BIEN

208 South LaSalle Street

Chicago, Illinois 60604

Counsel for Petitioner

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UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

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PAGE

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Appendix—

Exhibit 1—Chicago Tribune, June 23, 1978 ........ App. 1

AUTHORITIES CITED

Cases

Buffalo Forge Co. v. United Steelworkers, 428 U.S, 397

SED cebaintaigsaaiescisshidensscevaaiail duals bins hlesnssainicinbusihtanisatieadienct 3,4

Bus Employees v. Missouri, 374 U.S. 74 (1963) ........... 3

Carroll v. President and Commissioners of Princess

Anne, 393 U.S. 175 (1968) we. wiaiinadaede 3, 4, 5

Sosna v. lowa, 419 U.S. 393 (1975) eee 3

U.S. v. W.T. Grant Company, 345 U.S. 629 (1952) ....... 3

Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944) 3

Weinstein v. Bradford, 423 U.S. 147 (1975) ............. 3,4

Other Authorities

First Amendment to U. S. Constitution 0000000000000... 2, 5, 6

In the

Supreme Court of the United States

Sprinc ‘Term, 1978

No. 77-1788

SOL GOLDSTEIN, on his own behalf and on behalf of a class

similarly situated,

Petitioner,

vs.

FRANCIS JOSEPH COLLIN, 2/k a FRANK COLLIN, and all

persons acting in concert with him under the name of

The National Socialist Party of America,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Illinois

ee ee ee ee

PETITIONER’S REPLY BRIEF ON RESPONDENTS’

SUGGESTION OF MOOTNESS

Introduction

This cause is not moot. Although respondents cancelled

their proposed demonstration in Skokie after the instant

petition was filed and after petitioner’s two emergency

motions to Justices of this Court had been filed and denied.

respondent Collin immediately stated to the press:

2

‘‘'That] does not mean I forego any future demon-

stration in Skokie,’’ he said. ‘‘It means only this one

has been cancelled.’’ (Chicago Tribune, June 23, 1978,

p. 1) (Exhibit 1, App. p. 1)

Thus, respondents in their Brief in Opposition to the

Petition herein, can accurately represent:

At present, respondents have no plans to hold an as-

sembly in Skokie, and no permit applications for such

an assembly are pending at this time. (Brief in Opp.,

p. 7) (emphasis added).

However, respondents have not abandoned the conduct of

which petitioner complains. They have carefully main-

tained their option to stage a Nazi-style demonstration in a

community of holocaust survivors. Although respondents

seek to foreclose review here of the summary dismissal

without any semblance of established procedure, of the

survivors’ complaint, that dismissal has a continuing im-

pact upon the petitioner and the class he represents. The

judgment below, if it remains extant, leaves the petitioner

class with the overhanging threat of a rescheduling of a

Nazi-style demonstration, at respondents’ sole discretion

should ‘‘agitation’’* again suit their ends, and with a final

state holding on record that the First Amendment absolute-

ly bars legal recourse against even tortious aspects of the

demonstration. Respondents’ qualified cancellation does

not render this case moot under the decisions of this Court.

*Elaborating on his eleventh hour cancellation respondent

Collin stated:

“The whole Skokie issue which began in March, 1977, was

pure agitation on our part to force the system to restore our

rights to free speech,” he said. (Exhibit 1, p. 18, App. 2)

3

Argument

A voluntary discontinuance of challenged conduct does

not ipso facto render the challenge moot and nonjusticiable.

Walling v. Helmerich & Payne, Inc., 323 U.S. 37 (1944);

US. v. W.T. Grant Company, 345 U.S. 629 (1952); Bus

Employees v. Missouri, 374 U.S. 74 (1963); Buffalo Forge

Co. v. United Steelworkers, 428 U.S. 397 (1976); and

accord, Carroll vy. President and Commissioners of Princess

Anmme, 393 U.S. 175 (1968). Where the complaining party

has an interest which continues to be exposed to the type

of harm complained of, unlike Sosna v. Iowa, 419 U.S. 393

(1975) and Weinstein vy. Bradford, 423 U.S. 147 (1975),

the case or controversy continues in effect for jurisdictional

purposes.

‘‘The defendant is free to return to his old ways.’’

U.S. v. W.T. Grant Co., supra, 345 U.S. at 632. Grant

held a controversy justiciable despite a voluntary cessation

and sworn disclaimer of intention to resume an interlock-

ing directorate—something significantly stronger than

respondents’ bare cancellation of one demonstration. Even

a strong disclaimer of the Grant type ‘‘does not suffice to

make a case moot... .’’ Jd. at 633

The suggestion of mootness in Walling, supra, was based

on the voluntary relinquishment of a pay plan challenged

as an evasion of federal overtime law. The Court stated:

‘*Despite respondent's voluntary cessation of the chal-

lenged conduct, a controversy between the parties over

the legality of the split-day plan still remains. Volun-

tary discontinuance of an alleged illegal activity does

not operate to remove a case from the ambit of judicial

power. See Hecht Co, v. Bowles, 321 US 321, 327, 88

L ed 754, 759, 64 S Ct 587; Otis & Co. v. Securities

& Exch. Commission (CCA 6th) 106 F (2d) 579, 583,

4

584. Respondent has consistently urged the validity

of the split-day plan and would presumably be free to

resume the use of this illegal plan were not some

effective restraint made. There is thus ‘an actual

controversy, and adverse interests,’... .’’ 323 U.S. at

43.

On point with Walling is the respondents’ clear position in

this case that they legally can and accordingly might re-

schedule the complained of demonstration in Skokie.

In Buffalo Forge, supra, the Court held a case involving

an allegedly unlawful sympathy strike to present ‘‘a live

controversy despite the J & M employees’ return to the

job.”’ 428 U.S. 397 at 403, fn. 8. The disputed work

stoppage, ‘‘though ended, might ‘be resumed at any time

in the near future at the direction of the International

Union, otherwise.’’’ Jd. at 403. Given the complaining

employer’s continuing exposure to the kind of harm at

issue, the voluntary cessation did not render the case moot

even though at the time of Supreme Court adjudication

there were no evident plans for a resumption. Contrary

to Buffalo Forge and the instant case, the Weinstein

prisoner had no continuing exposure to the harm he had

complained of beyond that faced by any other citizen. (The

remaining Sosna class members faced continuing preju-

dice, not merely exposure, under challenged state resi-

dency requirement.)

Finally,* in Carroll, supra, the Court refused to dismiss

us moot a First Amendment challenge to a ten-day restrain-

* Respondents also argue, for the first time, that since peti-

tioner’s complaint mentioned only the first date respondents

scheduled for their demonstration petitioner has no basis for

complaining as to later dates. Aside from the broad scope of

equitable jurisdiction, respondents’ consistent treatment of this

action as live despite the date issue estops them from asserting

it now, after significant reliance on their original position by

the petitioner.

5)

ing order whose operation had long since terminated. The

Court’s first citation was to Bus Employees, supra, a case

involving the seizure of a business, stating its holding as

follows :

‘**{A |lthough the seizure had been terminated, the case

was not moot beeause the labor dispute [which gave

rise to the seizure! remains unresolved. There thus

exists ... not merely the speculative possibility of in-

vocation of the |seizure law} in some future labor dis-

pute, but the presence of an existing unresolved dis-

pute which continues .. .”* Quoted at 393 U.S. 175 at 178.

Although there was no mention in Carroll of any exist-

ing plan or intention by the Princess Anne officials to seek

another restraining order against the Carroll group, the

group’s continuing activity and the officials’ continuing op-

position kept the constitutional issue justiciable :

‘*The underlying question persists and is agitated by

the continuing activities and program of petitioners:

whether, by what processes, and to what extent the au-

thorities of the local government may restrict peti-

tioners in their rallies and public meetings.’’ 393 U.S.

at 179.

Lastly, because of the existence of the present under-

lying decision of the Illinois Supreme Court and the short

time frame which would exist if respondents once again

decided to demonstrate in Skokie, the issues presented here

would, in all likelihood, evade judicial review.

Thus, very much alive in the instant case is the question,

similar to that in Carroll, whether the First Amendment

forecloses any and all consideration by a state court of

equity of narrow injunctive relief against an admittedly

6

tortious and irreparable aspect* of a prospective demon-

stration. The dispute between the neo-Nazis and the holo-

caust survivors in Skokie has not abated because of re-

spondents’ latest unilateral cancellation of a demonstration.

Petitioner and his class should not be required to remain

in a state of legal and psychological jeopardy subject to a

rescheduling of a Nazi-style demonstration in their com-

munity, with all the attendant trauma to be expected there-

from. The decisions of this Court do not require such a

result.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review ‘uc judgment and opinion of the Supreme

Court of Illinois.

Respectfully submitted,

Sot Goipsrein, on his own behalf,

and on behalf of a class similarly

situated, Petitioner

Jerome H, TorsHEN

Exuror L. Bren

Counsel for Petitioner

* This case arises on a motion to dismiss. admitting the allega-

tions of the complaint. Respondents have not challenged peti-

tioner’s statement that the law of the case is that the admitted

allegations, as the trial court held, state a cause of action in

tort and for equitable jurisdiction. Respondents claim only that

the First Amendment provides them an absolute defense to their

proposed conduct.

JeroME H. Torsnen

JEFFREY CoLe

11 South LaSalle Street

Chicago, Illinois 60603

372-9282

Exurot L. Bren

208 South LaSalle Street

Chicago, Illinois 60604

346-8500

KituGeNe Weporr

One IBM Plaza

44th floor

Chicago, Illinois 60611

222-9350

Gerarp LEVAL

233 South Wacker Drive

8000 Sears Tower

Chicago, Illinois 60606

876-8000

Counsel to Plaintiff

—— i

APPENDIX

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Exhibit 1

Contvaucd [rom page ene

July 9 in the park.

“IF CALLA COME fer us, we will join

them as we did ts Sema and in Wash

ington,” Rabbi Pereimuter said.

“if the communuy cails for support to

oppeee the Nazis, we will be there,”

said Maynard Wishner, anolher spokes-

man for the group.

lierman H. Moses, netiona: command-

er of Use Jewish War Veicrans, cancelet

lus organization's pians (lo (ake part in

weeker| counter-denonstralions against

the Nats in Skokie and Chicago.

Gov. Thompson's office announcel

thal plans were canceled to assembic

unis of he National Guard in Skokie (ov

prevent violence if the Nazis had

marched.

Sixty news reporters and camecrainen

jammed the Nazi Party headquarters

for Colin's 6 p.m. press conference.

Uulside the front door were Rabbi Meir

Kahone of the Canferenee of Jewish Ac-

lvls and a hendfui of hu foliowers.

“We expect lo see you in Skokie, Col-

in,"" Rabbi Kahane shouted a few sec-

Collin said the rally Saturday afier-

noon “is definitely on despile what eise

I say here today.”

“THE WHOLE SKUKIE issue which

restore our

Bank

He saxt the news media “nol once

ever reported why we were demonsiral-

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Nazis Cai. ©

App. 2

omflorms Quad symbeis while Unere, were

-t Skokie march

‘This case han more faceis than the

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