Opposition — Village of Hoffman Estates v. Village of Barrington Hills

| Supreme Court, U.

FILED

JAN 198;

No. 80-908

eT WAN, IR CLERK |

IN THE See ae

Supreme Court of the GQnited States

OcTOBER TERM, 1980

VILLAGE OF HOFFMAN ESTATES,

a Municipal Corporation,

Petitioner,

VS.

VILLAGE OF BARRINGTON HILLS, a Municipal Corpo-

ration, and VILLAGE OF SOUTH BARRINGTON, a Mu-

nicipal Corporation,

Respondents.

RESPONSE TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME

COURT OF ILLINOIS

R. MARLIN SMITH

One IBM Plaza

Suite 3100

Chicago, Illinois 60611

(312) 467-9300

Counsel for Respondent, Village

of Barrington Hills

DONALD J. KREGER

208 South La Salle Street

Room 900

Chicago, Illinois 60604

(312) 346-8500

Counsel for Respondent, Village

of South Barrington

WENDY U. LARSEN

ALEXANDER R. DOMANSKIS

Davip H. KISTENBROKER

of Ross, HarpIES, O’KEEFE,

BaBCOCK & PARSONS

Chicago, Illinois

ROBERT J. RUBIN

of FRIEDMAN & KOVEN

Chicago, Illinois

Of Counsel.

i

TABLE OF CONTENTS.

PAGE

Ne Pe acs vidhh gai si valdoaresegnccsssvensancuaaeanviasnsbuinacns ll

Additional Statement of the Case ...............ccsccccsssssessseeees l

RN GE PIII yc usrcsesaceseceavenssscoessnissnnesssneveseséesmnnse 2

NIIIITE Siccssscsknlii kaclarsaebncindaulcigvssasip piktenedntatadnabaminiransobisaaeons 4

Point I. The Petitioner has Failed to Carry its

Burden of Showing that a Federal

Question was Decided by or Presented

to the Illinois Supreme Court ................. 4

Point II. The Decision of the Illinois Supreme

Court Rests on an Independent and

Adequate State Ground................cccceeeee 5

Point III. The Decision of the Illinois Supreme

Court does not Invade any Protected

Due Process Right of the Petitioner....... 7

REI R 5 7 RSI NT PEE POPC SEAN as PRED 10

il

TABLE OF AUTHORITIES

Cases.

American Railway Express Company v. Kentucky, 273

Fae Ny TR BUT Pi ccsinsasestiinsicdonniainigdsticieaieimeiin

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S.

ey Oe iktntsainavcccnnesseacininamedidesbanedinabenidiniiialenn

Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) ..........

Connecticut Mutual Life Ins. Co. v. Moore, 333 USS.

es IEE sccihainsenincttn sa ecthceennalcvsicanonemsepeetaslavadiii

Crowell v. Randell, 35 U.S. (10 Pet.) 368, 392 (1836) ...

Fuller v. State of Oregon, 417 U.S. 40, 50 n. 11 (1974)...

Herb v. Pitcairn, 324 U.S. 117, 125 (1945)... ee

Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590,

Re PE peccaetniasicdsdeneiinacyicbhastcaubebannnnseneiiuciaailansaias

ge wg RG eT: nn

Paul v. Davis, 434 U.S. 693, 710 (1976) ......cccccceceeeeeeeeees

People v. Disbrow, 16 Cal.3d 101, 545 P.2d 272, 280-81

PE seid iantteeiiaianadtcitnnecjenceiethcswvenbasiciacnielllphinanbaielake

Pruneyard Shopping Center v. Robins,

100 S.Ct. 2035, 2042-43 and n. 8 (1980)...

Southern Burlington NAACP v. Township of Mount

Laurel, 67 N.J. 151, 336 A.2d 713, 725, app. dis-

missed and cert. denied, 423 U.S. 808 (1975) .............

State v. Johnson, 68 N.J. 349, 346 A.2d 66, 67 (1975) ...

Street v. State of New York, 394 U.S. 576, 582 (1969) ...

Suffolk Housing Services v. Town of Brookhaven, 91

Misc.2d 80, 397 N.Y.S.2d 302, 308-09 (1977), mod.

and affd., 73 App.Div.2d 731, 405 N.Y.S.2d 302

Pr etadisscxsciscctcicssnsecalehepimnibiabiiaivendaaaainhbinaaaibasilaiions

United States v. Cella, 568 F.2d 1266, 1279 n. 9 (9th

a are ED ensishsivlaslasedestaticsnsnsiiceatcinenineciedliciadantatiaadlaapenataabialin

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 262 n. 8 (1977)......

Village of Barrington Hills v. Village of Hoffman Es-

tates, 75 Ill.App.3d 461, 394 N.E.2d 599 (1979),

rev'd., 81 Ill.2d 392, 410 N.E.2d 37 (1980) ......

Village of Hickory Hills v. Village of Bridgeview, 67

EEL. S6 SIF, SOT WL.EB.26 USGS CUGTT) cevccrecvcecccscrsencscsvesene

4

4

9

4

iil

Wainwright v. Sykes, 433 U.S. 72, 81 (1977)..........cccc0000 7

Warth v. Seldin, 422 U.S. 490 (1975) .....ccceeccccceseeeeeeseeeees 6

Williams v. Mayor and City Council of Baltimore, 289

Ls MOTE III lan 2c nan achisanstinendabadesdnnionauastnbineincstas 8

Wilson v. Loew’s Inc., 355 U.S. 597, 598 (1958) .............. 5

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.

nosis sonncaiealiinsalipunctnninenesimathidoceniénssies 5

Constitutions

Illinois Constitution, Art. VII, §§ 6(a) 6(m) ................6. 2,8

Illinois Constitution, Art. VII, § 7 ...........ccceeecceeseseeeeeeeeeees 2

Other Authorities

Brennan, William J., Jr., Developments in Constitutional

Law, 99 N.J.L.J. 473, at 483 (June 3, 1976) ........ ee. 9

No. 80-908

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

VILLAGE OF HOFFMAN ESTATES,

a Municipal Corporation,

Petitioner,

vs.

VILLAGE OF BARRINGTON HILLS, a Municipal Corpo-

ration, and VILLAGE OF SOUTH BARRINGTON, a Mu-

nicipal Corporation,

Respondents.

RESPONSE TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME

COURT OF ILLINOIS

In opposition to the petition of the Village of Hoffman

Estates for a writ of certiorari, the respondents, the Villages-of

Barrington Hills and South Barrington, submit the following

Additional Statement of the Case and Argument for consid-

eration by the Court.

ADDITIONAL STATEMENT OF THE CASE

Only two of the six counts of the complaint involve due

process claims. Count I is grounded on a claim that the

rezoning in question deprives plaintiffs of due process of law

contrary to the Fifth and Fourteenth Amendments to the

Constitution of the United States and Section 2 of Article I of

the Constitution of the State of Illinois. Count II rests on a

claim that in rezoning the property in question the petitioner

here, the Village of Hoffman Estates, has exceeded its statutory

authority. Count III alleges that the rezoning is inconsistent

with the express purpose and intent of the zoning ordinance of

Hoffman Estates. Count IV claims that the presence of an open

air music theater on the property would be a public nuisance.

Count V rests on the claim that the music theater is not a lawful

permitted use in the Hoffman Estates zoning district in which it

is located. Count VI attacks the validity of the annexation

agreement on procedural due process grounds for failure to

make the annexation agreement available for public inspection

sooner than three and one-half hours prior to the public hearing

on the agreement, and also on the ground that the agreement

contains provisions that are contrary to the statutory and

decisional law of the State of Illinois.

In Illinois a home rule municipality, such as South Barring-

ton, derives its authority and powers from the state constitution

unless the legislature has limited those powers in the manner

prescribed by the state constitution. Illinois Constitution,

Article VII, §§ 6(a) through 6(m). Non-home rule municipal-

ities, such as Barrington Hills, have only those powers granted

by law and certain specifically defined constitutional powers.

Illinois Constitution, Article VII, § 7.

SUMMARY OF ARGUMENT

The decision of the Illinois Supreme Court does not rest on

any federal ground, and the petitioner has failed to carry the

burden of demonstrating that the issues which it requests this

Court to review were presented to the Supreme Court of

Illinois.

The decision of the Supreme Court of Illinois rests entirely

upon an independent and adequate state ground.

A determination by the highest court of a state that

political subdivisions of the state have due process rights which

they may assert in litigation does not raise a federal question in

the context of this case because the existence of a right to due

process depends upon the existence of a protected interest in

liberty or property. The question of what constitutes a “proper-

ty interest” is a matter of state law. Even if the Illinois Supreme

Court had rested its ruling on a due process ground, it would

have amounted to no more than a determination that as a

matter of state law the corporate interests of municipalities are

tantamount to “property interests” that are entitled to due

process protection. Moreover, the states are free to give a more

expansive meaning to the due process clause of the state

constitution than is required as a matter of federal con-

stitutional doctrine.

4

ARGUMENT

THE PETITIONER HAS FAILED TO CARRY ITS BUR-

DEN OF SHOWING THAT A FEDERAL QUESTION

WAS DECIDED BY OR PRESENTED TO THE IL-

LINOIS SUPREME COURT

The decision of the Illinois Supreme Court in this case does

not rest on the determination of any federal question. The

ruling dealt only with the showing a litigant must make as a

matter of state law to qualify as an aggrieved person having a

real interest in the controversy with standing to litigate the

issues presented by the pleadings. This Court has held that it

does not have jurisdiction to review the determination of a

federal question unless it was presented to and relied upon by

the court below. Crowell v. Randell, 35 U.S. (10 Pet.) 368, 392

(1836). This Court has “consistently refused to decide federal

constitutional issues raised here for the first time on review of

state court decisions.” Cardinale v. Louisiana, 394 U.S. 437,

438 (1969), and cases cited therein at page 438.

The party seeking review by this Court has the burden of

proving that the federal questions were presented to the state

courts. Where, as in this case, the highest state court has failed

to pass upon the federal question and gives no indication that it

was ever asked to consider any federal question, it will be

assumed that the omission results from a failure to present the

question properly in the state court, unless the petitioner

affirmatively shows that the question was presented. Street v.

State of New York, 394 U.S. 576, 582 (1969); and, Fuller v.

State of Oregon, 417 U.S. 40, 50 n. 11 (1974).

In its petition for certiorari, the petitioner points out that a

federal question was raised by Point 6 of the Motion to Dismiss.

(See, App. 24a) However, the petition contains no showing, or

even a claim, that the questions it is asking this Court to review

5

were ever presented to the Illinois Supreme Court. Even if a

question sought to be reviewed was presented to a lower state

court, but was not properly preserved on appeal to higher state

courts, the requirement that a federal question must have been

presented to the highest state court has not been satisfied.

Connecticut Mutual Life Ins. Co. v. Moore, 333 U.S. 541, 544

(1948). In this case not even the decision of the Illinois

Appellate Court, in which petitioner prevailed, rested upon or

made any mention of the federal questions which the petitioner

seeks to have reviewed by this Court. See, Village of Barrington

Hills v. Village of Hoffman Estates, 75 Ull.App.3d 461, 394

N.E.2d 599 (1979), rev’d., 81 Ill.2d 392, 410 N.E.2d 37 (1980)

The petition for certiorari filed by the Village of Hoffman

Estates is insufficient because it contains no showing whatsoever

that the questions which it seeks to have reviewed were in fact

presented to the Illinois Supreme Court. The petitioner has

simply failed to carry the burden imposed upon it by the

decisions of this Court to show that it has raised the federal

questions in the proceedings before the highest state court that

considered the case.

THE DECISION OF THE ILLINOIS SUPREME COURT

RESTS ON AN INDEPENDENT AND ADEQUATE

STATE GROUND

Even when a petitioner has presented a federal question

which has been passed upon by the highest court of a state, this

Court will still decline to review the state court decision on a

petition for a writ of certiorari if an independent and adequate

State ground exists for that decision. Zacchini v. Scripps-

Howard Broadcasting Co., 433 U.S. 562, 566 (1977); and,

Wilson v. Loew’s Inc., 355 U.S. 597, 598 (1958). In this case

the only basis for the decision of the Illinois Supreme Court was

6

a State ground. Specifically the Illinois Supreme Court held that

as a matter of Illinois law the respondents had met the tests

previously set down in Village of Hickory Hills v. Village of

Bridgeview, 67 Ill.2d 399, 367 N.E.2d 1305 (1977), for

determining when municipalities are sufficiently aggrieved by

the zoning regulations of their neighbors to have standing to

question the validity of those regulations.

The petitioner’s reliance upon Warth v. Seldin, 422 US.

490 (1975), is mistaken. Warth affirmed a holding that the

plaintiffs did not have standing to invoke the aid of the federal

courts. So the rule which this Court announced in Warth has no

application because the rule with respect to standing adopted

by the Illinois Supreme Court in this case dealt with the state

law requirements for access to the state courts. It would be

novel doctrine if providing access to the state judicial system

were to be held to be a denial of due process.

The state courts are not constrained by the relatively

narrow rule announced in Warth. They are at liberty to apply

more liberal rules with respect to standing, a point which the

Ninth Circuit recognized in United States v. Cella, 568 F.2d

1266, 1279 n. 9 (9th Cir. 1978). For example, in Suffolk

Housing Services v. Town of Brookhaven, 91 Misc.2d 80, 397

N.Y.S.2d 302, 308-309 (1977), mod. and affd., 63 App.

Div.2d 731, 405 N.Y.S.2d 302 (1978), a New York court

refused to accept the argument that Warth was a binding

limitation on standing for the state courts and permitted

plaintiffs to proceed with a state court suit that almost certainly

would have been dismissed for want of standing under Warth

had it been brought in a federal court.

Nor does Orr v. Orr, 440 U.S. 268 (1979), help the

petitioner because in that case the Louisiana court had decided

the case on a federal ground and this Court held that the

plaintiff did have standing to maintain the action.

In this case petitioner seems to claim that the Illinois rule

with respect to the standing of municipalities is constitutionally

impermissible because it transgresses the federal “prudential

limitation” on standing articulated by Warth. But Warth

makes it clear that its standards are for the federa! courts not

the state courts. The state courts are free to fashion their own

rules for their own courts with respect to standing even though

in some instances the state rule may be more restrictive. See,

Village of Arlington Heights v. Metropolitan Housing Devel-

opment Corp., 429 U.S. 252, 262 n. 8 (1977). The question of

standing in the staie courts being one of state law, there was in

this case an adequate and independent state ground for the

decision irrespective of the constitutional issue that this Court is

now urged to review. When a state decision rests on an

adequate foundation of state substantive law it is immune from

review in the federal courts. Wainwright v. Sykes, 433 U.S. 72,

81 (1977); Herb v. Pitcairn, 324 U.S. 117, 125 (1945); and,

Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 626

(1874).

Ill.

THE DECISION OF THE ILLINOIS SUPREME COURT

DOES NOT INVADE ANY PROTECTED DUE PROCESS

RIGHT OF THE PETITIONER

The petitioner asks that this Court grant certiorari to

consider whether one municipality may assert a federal due

process claim against another municipality. The thrust of the

petitioner’s argument suggests that if its petition is granted,

Hoffman Estates will argue that the protection of federal due

process does not extend to municipalities. There is a grave

difficulty with petitioner’s position. If petitioner’s substantive

argument is sound, then its petition should not be granted

because the question it has presented for review is whether, as a

municipality, its federal due process rights have been invaded

by the decision of the Illinois Supreme Court.

The petition for certiorari is least clear on the question of

just what due process right of the petitioner has been invaded

by the decision of the Illinois Supreme Court. The petitioner

appears to suggest that the decision of the state court was

erroneous. However, it was settled many years ago by this

Court that federal due process does not insulate litigants from

erroneous or even inept decisions or afford an occasion for

review of such decisions on due process grounds by this Court.

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 680

(1930); and, American Railway Express Company v. Kentucky,

273 U.S. 269, 272-74 (1927).

Williams v. Mayor and City Council of Baltimore, 289 U.S.

36 (1933), does not provide a basis for the petition either,

because this is not a suit by units of local government against

the governmental body that created them. Indeed, South

Barrington and Hoffman Estates derive their power as home

rule units from the state constitution. Illinois Constitution,

Article VII, §§ 6(a) through 6(m).

Moreover, the question of whether a municipality may

assert a federal due process claim turns on the question of

whether there has been an invasion of a protected interest in

liberty or property and, unless the interest asserted is guaran-

teed by the Bill of Rights, such interest attains its constitutional

status by virtue of the fact that it has been recognized and

protected by state law. Paul v. Davis, 424 U.S. 693, 710

(1976). Thus even had the Supreme Court of Illinois grounded

its decision upon the federal due process questions raised by

petitioner in this Court, the opinion would have been no more

than a holding that as a matter of Illinois state law the

corporate interests of a municipality are tantamount to pro-

tected property interests. Such a conception of a protected

property interest, even had it been explicit in the opinion of the

Illinois Supreme Court, would not have raised a federal con-

stitutional question that would be subject to review in this

Court.

Were the Village of Hoffman Estates claiming that it was

denied access to the state court system, then a federal due

process claim might reasonably have been made. But the

9

petitioner appears to be arguing that the requirements of

federal due process should have barred the respondents from

access to the state courts. That position is not even marginally

plausible because the Illinois courts are free to adopt, as a

matter of state constitutional law, a more expansive view of the

meaning of procedural due process than is mandated as a

matter of federal constitutional law. See, for example,

Pruneyard Shopping Center v. Robins, ay acimnin WOU

S.Ct. 2035, 2042-43 and n. 8 (1980); State v. Johnson, 68 N.J.

349, 346 A.2d 66, 67 (1975); People v. Disbrow, 16 Cal.3d 101,

545 P.2d 272, 280-81 (1976); and, Southern Burlington

NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d

713, 725, app. dismissed and cert. denied, 423 U.S. 808 (1975).

See also, Brennan, William J., Jr., Developments in Con-

stitutional Law, 99 N.J.L.J. 473, at 483 (June 3, 1976). So even

if the present petition were not otherwise insufficient, there

would not be any authentic Federal constitutional question for

this Court to consider.

10

CONCLUSION

Petitioner has failed to carry its burden of showing that it

has properly reserved for review the constitutional questions it

presents and the decision that it asks this Court to review is

purely a ruling on the state law of standing that rests entirely on

state grounds. Moreover, the federal due process questions

raised by petitioner are actually illusory. Accordingly, respond-

ents respectfully pray that this Court deny the petition for a writ

of certiorari.

Respectfully submitted,

R. MARLIN SMITH

One IBM Plaza

Suite 3100

Chicago, Illinois 60611

(312) 467-9300

Counsel for Respondent, Village

of Barrington Hills .

DONALD J. KREGER

208 South La Salle Street

Room 900

Chicago, Illinois 60604

(312) 346-8500

Counsel for Respondent, Village

of South Barrington

WENDY U. LARSEN

ALEXANDER R. DOMANSKIS

Davip H. KISTENBROKER

of Ross, Harpigs, O’KEEFE,

BABCOCK & PARSONS

Chicago, Illinois

ROBERT J. RUBIN

of FRIEDMAN & KOVEN

Chicago, Illinois

Of Counsel.