Opposition — Zeigler Coal Co. v. Dethloff

Office-Supreme Cou

No. 80-1426 ELLE)

MAR Qty 198

ALEXABDER L. QTE

CLERK

-_—-.

IN THE

Supreme Court of the Anited States

ZEIGLER COAL COMPANY, an Illinois Corporation,

Petitioner,

vs.

PHILLIP A. DETHLOFF and DOROTHY J. DETHLOFF,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

LEONARD M. RING

ARNOLD F. BLOCKMAN

RAYMOND LEE, Jr.

Attorneys for Respondents

Of Counsel:

LEONARD M. RING AND ASSOCIATES

111 West Washington Street

Chicago, Illinois 60602

(12) 332-1765

HATCH, BLOCKMAN & MCPHETERS

113 North Neil Street

P.O. Box 578

Champaign, Illinois 61820

(217) 356-2577

Law Offices of Raymond Lee, Jr.

Route 36 at Ohio Street

Tuscola, Illinois 61953

(217) 253-2100

Pandick Press Midwest, Inc., Chicago * 454-7600

QUESTIONS PRESENTED FOR REVIEW

I. Whether this Court has certiorari jurisdiction where a

due process contention was never raised or decided by the state

courts.

II. Whether a due process claim made for the first time on

a Petition for Rehearing from a state court judgment presents a

due process question—where the Petition for Rehearing was

summarily denied without even a mention of the due process

contention.

III. Whether this Court will exercise certiorari jurisdiction

to review a state court decision involving only economic

matters.

'*

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW................... i

Pas Ee PRT CPE BTR isi cpscsicsanhnesesseccevisessderncynvenees iil

REASONS WHY THE WRIT SHOULD BE DENIED. l

Petitioner’s Due Process Arguments Were Not Timely

Raised in the State Court Proceedings and Were

Never Decided By the State Courts. They Therefore

Cannot Now Be Reviewed By This Court Under Its

og Ee Ne Se ONE LT CORE l

Petitioner’s Due Process Claims Are Not Substantial On

ts deneracabinebuigipusesivons 3

RI ian eaiatccschvarevosesessicecedoemedabaneentaciticestbentens 9

iii

TABLE OF AUTHORITIES

Cases

Beaty v. Richardson, 276 U.S. 599 (1928)..............

Berea College v. Kentucky, 211 U.S. 45 (1908)......

Bouie v. Columbia, 378 U.S. 347 (1964) ............000

Bruner v. Hicks, 230 Ill. 536, 82 N. E. 888 (1907)...

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

City of New Orleans v. Dukes, 427 U. S. 297

© PI icici tc issiecausidedesinicepsstdtviitediaubactcedepianiieds,

Clore v. Fredman, 59 Ill. 2d 20, 319 N. E. 2d 18

A, 2, SORES eA BN Rete 19 He SIR gWibet e Uy ALU IN

Coates v. City of Cincinnati, 402 U.S. 61141971).

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

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421

Bt IU elie bat oes Via ahacesnesdisnasnantamnssterecianioaunbeonsinsantens

Dethloff v. Zeigler Coal Co., 82 Ill. 2d 393, 412

Fi Se TE IN dein seis Ainisphenseichinevtsdipnnprnoniacddtngeaies

Donovar v. Consolidated Coal Co., 187 Ill. 28, 58

De ME NE Dis cic sd idinnienncestsaabinpldecuwithadivoseeaninoens

Ferguson v. Skrupa, 372 U.S. 726 (1963 )............:-

Flynn v. Vancil, 41 Ill. 2d 236, 242 N. E. 2d 237

Fr eeinksnescvatecloccusctsthesisasetumbceiacasdebibemiomiwely

Forbes v. State Council of Virginia, 216 U. S. 396

Pree P accsircisicccicsesi aussi blisiiaainiacehanateeanibieesbintnieh stmayaniiins

Grayned v. City of Rockford, 408 U.S. 104 (1972).

Griffin v. Breckenridge, 403 U.S. 88 (1971)............

Guffey v. Smith, 237 U.S. 101 (1914) oe

Hanson v. Denckla, 357 U.S. 235 (1958) ...............

Herb v. Pitcairn, 324 U.S. 117 (1944) ................00..

Herndon v. Georgia, 295 U.S. 441 (1935) ..............

Hillblom vy. Ivancsits, 76 Ill. App. 3d 306, 395

2 OS kc, ea een

PAGE

by)

2

iV

PAGE

Illinois & St. Louis R.R. & Coal Co. v. Ogle, 81 Ill.

fo tg) RRR Ret OR ID Sey EOC /al ERR AION I HA 4

Illinois & St. Louis R.R. & Coal Co. v. Ogle, 92 Ill.

BE CT Racinkgcsssisicadacnneis keane tacanmabnaeic 4,6

Lambach v. Town of Mason, 386 Ill. 41, 53 N. E.

Be ee Re scrneathasdacclocesinasisiinieicenaacbacleicamacntcbeintinl 4,6

Londoner v. Denver, 210 U.S. 373 (1908 ).............. 5

Mathews v. Eldridge, 424 U.S. 319 (1976) ............. 6

McCorquodale v. Texas, 211 U.S. 432 (1908) ....... 2

McGuire v. Boyd Coal & Coke Co., 236 Ill. 69, 86

i Sia PRE ID hcisctigssovscuinknsstcinticaabsenasinaiahiiiinbanciabea teed 4

McLean County Coal Co. v. Long, 81 Ill. 359

Pr ili isk celicsalidecbiadiskcanaselasgndaiaiveiabichdakinsiainineabeaehintials 4,6

Memphis Light, Gas & Water Div. v. Craft, 436

TR Ti EOE PUY Bc atibsencccton:podiaoneaniiahieteinneeniiainsieaalianeennn 5

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

6 > TRELNP REISE ne REO elly 1. SOCOM DERE Se meg ENT tobCE a 3

Paul v. Davis, 424 U.S. 693 (1976) ............eeeeeeeeeees 7

Radio Station WOW vy. Johnson, 326 U. S. 120

See iiiahichoisesehinsesgiinconmeestencalanaliimilaseioinicescssehatebaahaah 2

Robertson v. Jones, 71 Ill. 405 (1874) .......... eee. 4,6,8

Rose v. Locke, 423 U.S. 48 (1975) .........eeeeeeeeeeeeeees 6

Shell Oil Co. v. Manley Oil Corp., 50 F. Supp. 21

OTE, Bk TR BBD ccthivccienetetcnsscceeecdaaitemoiinennnes 6

United States Trust Co. v. New Jersey, 431 U.S. 1

EFI Y Os sanideidbiushiakcctecstakecriibicgahandasaadiebanibinandaonspncaeaen 5

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

CT i svckstsiccnssbeschceenetstibalataalcabpeeinbateidalencsiainate: 5

Wolff v. McDonnell, 418 U.S. 539 (1974) .......0...... 5

Constitutional Provisions

AD, Se, CIR: SOR I SE oe ws icaitia saraietesonsteecniaceantnsinnaeaniennons 5

We, Ss SI, IIE, BRIO sctinsstisectincnsecetincinsestiaenntianiiene 7

Additional Authorities

PR ree 4

pM PER BO, nee 4

IN THE

Supreme Court of the Anited States

ZEIGLER COAL COMPANY, an Illinois Corporation,

Petitioner,

vs.

PHILLIP A. DETHLOFF and DOROTHY J. DETHLOFF,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

REASONS WHY THE WRIT

SHOULD BE DENIED

PETITIONER’S DUE PROCESS ARGUMENTS WERE

NOT TIMELY RAISED IN THE STATE COURT PRO-

CEEDINGS AND WERE NEVER DECIDED BY THE

STATE COURTS. THEY THEREFORE CANNOT NOW

BE REVIEWED BY THIS COURT UNDER ITS CER-

TIORARI JURISDICTION.

Petitioner, Zeigler Coal Company, has no just basis for

asking this Court to exercise certiorari jurisdiction. Its due

process contentions surfaced for the first time in a Petition for

Rehearing filed in the Illinois Supreme Court. Zeigler did not

raise them in the trial court. It did not raise them in the Illinois

Appellate Court. Nor were they briefed or argued by Zeigler in

the Illinois Supreme Court; only in its Petition for Rehearing

from the adverse final judgment of that Court did Zeigler first

spring a due process argument. Since Zeigler had more than

2

ample prior opportunity to obtain a ruling on its alleged due

process questions but failed to even raise them prior to the

decision of the I’linois Supreme Court, Zeigler has waived its

due process challenge under Illinois law. Clore v. Fredman, 59

Ill. 2d 20, 319 N. E. 2d 18 (1974); Flynn v. Vancil, 41 Ill. 2d

236, 242 N. E. 2d 237 (1968); Hillblom v. Lvancsits, 76 Ill. App.

3d 306, 395 N. E. 2d 119 (1979).

The long established and unquestioned rule is that this

Court has no jurisdiction to review a federal question unless it

was both raised and decided in the state courts. Crowell v.

Randall, 35 U. S. (10 Pet.) 368, 391 (1836); Cardinale v.

Louisiana, 394 U. S. 437, 438 (1969). Here, not only did

petitioner not raise its due process arguments in the state courts,

but as the opinions of those courts demonstrate, the state courts

did not decide or even address those issues.

Zeigler, therefore, is barred from raising these claims in

this Court. Herndon v. Georgia, 295 U. S. 441, 443 (1935);

Beaty v. Richardson, 276 U. S. 599 (1928).

Additionally, raising a federal question for the first time in

a Petition for Rehearing, as petitioner has attempted to do here,

is insufficient for federal jurisdictional purposes. The only time

this may not hold true is where the highest state court has

actually entertained the petition and expressly passed on the

federal question.” Radio Station WOW vy. Johnson, 326 U. S.

120, 128 (1945); Hanson v. Denckla, 357 U. S. 235, 243-244

(1958); Herndon v. George, 295 U. S. 441, 443 (1935). This

possible exception is not satisfied, however, by the state court

entering a one sentence Order simply denying the Petition for

Rehearing—as is the case here. The Order must show more. It

must demonstrate that the Court considered the federal ques-

tion, and denied a rehearing, notwithstanding. Forbes v. State

Council, 216 U. S. 396, 399 (1910); McCorquodale v. Texas

211 U. S. 432, 436-437 (1908).

Furthermore, this is not a case where Petitioner can claim

“surprise.” The due process issues Zeigler is now claiming did

3

not originate in the Illinois Supreme court’s decision. Petitioner

could have presented the same arguments: (1) when the trial

court ruled as a matter of law that it had not acted in good faith

when it trespassed; (2) when it appealed to the Illinois

Appellate Court; or (3) in its appeal to the Illinois Supreme

Court. At no stage in the proceedings did it do so.

But even if a federal question had been raised by Zeigler

and decided at the highest state court level—a fact not present

here—this Court will not review a state court judgment based

upon an independent nonfederal or state ground. Murdock v.

Memphis, 87 U.S. (20 Wall.) 590, 636 (1874); Berea College

v. Kentucky, 211, U.S. 45, 53 (1908); Herb v. Pitcairn, 324 U.

S. 117, 125-126 (1944).

For these reasons, the Petition for Writ of Certiorari mst

be denied.

PETITIONER’S DUE PROCESS CLAIMS ARE NOT

SUBSTANTIAL ON THE MERITS

Not only are Petitioner’s due process claims not properly

presented to this Court for the exercise of its certiorari jurisdic-

tion, they are utterly devoid of merit. While not entirely clear,

these claims seem to be of two kinds: (1) a procedural due

process challenge based on the allegedly retroactive impact of,

and absence of notice in connection with, the Illinois Supreme

Court’s decision in this case; and (2) a substantive due process

challenge to the Illinois Supreme Court’s announced rule as to

punitive damages for bad faith trespass to mineral lands.

A.

Zeigler’s procedural due process challenge is built on a

foundation of wet clay. Petitioner, joined by its Amici Curiae,

argues that the Illinois Supreme Court’s measure of damage

4

rule creates a new and previously unannounced rule of conduct,

constituting summary punishment. Nothing could be farther

from the truth. In the first place, the Illinois Supreme Court did

not announce a new rule of punitive damage for wilful trespass

to mineral lands—nor did the Court hold that plaintiffs had a

right to any such damage. On the contrary, the Illinois

Supreme Court specifically stated:

Turning to a contention of the plaintiffs, we hold that the

trial court was correct in denying their claim that punitive

damages were warranted. As we have observed above, the

harsh rule on damages applicable to wilful trespasser and

converter of coal is by its very nature punitive. The

plaintiffs were awarded damages far beyond what they

would have received through royalty payments, and the

defendant should not be liable for what would be in effect

punitive damages upon punitive damages. (Emphasis

added) 412 N. E. 2d at p. 536.

While it is true, as the Court said, that damages recov-

‘erable for wilful trespass are punitive “in nature’’, because the

trespasser is not allowed to deduct his costs of mining—that is,

and has always been, Illinois law.’ Robertson v. Jones, 71 Ill.

405 (1874), Jil. & St. L. RR & Co. v. Ogle, 82 Ill. 627 (1876);

McLean County Coal Co. v. Long, 81 Ill. 359 (1876); Illinois &

St. Louis RR. & Coal Co. v. Ogle, 92 Ill. 353 (1879); Donovan

v. Consolidated Coal Co., 187 Ill. 28, 58 N. E. 290 (1900); and

McGuire v. Boyd Coal & Coke Co., 236 Ill. 69, 86 N. E. 174

(1908). Moreover, the Illinois damage rule was approved by

the United States Supreme Court more than half a century ago

in Guffy v. Smith, 237, U. S. 101 (1914). Guffey was relied

upon by the Illinois Supreme Court for its decision in Lambach

v. Town of Mason, 386 Ill. 41, 53 N. E. 2d 601, 608 (1944):

The distinction between cases where the entry is made and

wells are drilled in good faith, and cases where such entry

anc the drilling of the wells constitute a wilful trespass, is

clearly poinied out in Guffey v. Smith, 237 U. S. 101, 35

1 It is also the law of most other jurisdictions. Annot., 7 A. L. R.

908 (1920); Annot., 21 A. L. R. 2d 380 (1952).

5

S. Ct. 526, 59 L. Ed. 856. In that case, the court found that

the original entry was made in good faith. .. Later he had

actual notice of the existence of a prior lease. The court

ordered that, ... [as to] the first wells drilled, the defend-

ant was entitled to be repaid the expenses incurred in

drilling the wells and producing the oil. However, as to the

wells drilled after he had actual notice of the prior lease, the

court held that he was not entitled to recover such expenses.

53 N.E. 2d 601 at 608 (emphasis added )

In light of this history—for petitioner and Amici Curiae to

contend, as they do, that the Illinois Supreme Court announced

Sor the first time in this case a rule of punitive damages in cases

of wilful trespass to mineral lands which constitutes a “retro-

actively imposed penal sanction”, is a pure distortion of prece-

dents.2

Likewise based on fantasy is petitioner’s argument that the

state courts denied it a meaningful opportunity to raise the

question of the proper and valid measure of damages for bad

faith trespass. Zeigler advanced this contention from the

outset—and it was duly considered, duly passed upon and duly

rejected—again, not only by the trial court, but by the Iilinois

Appellate and Supreme Courts.

2 None of Petitioner’s citations are in point, and it would be an

unnecessary imposition on the Court’s time for us to engage in a case-

by case analysis. Suffice it to say, even the most cursory examination

of Petitioner’s allegedly supporting authorities show that they deal

with cases decided under Article Il, § 2 of the Constitution of the

United States, which prohibits passage of an“... ex post facto Law,

or Law impairing the Obligation of Contracts. . .,” e.g., United States

Trust Co. v. New Jersey, 431 U.S. 1, 17 n.13 (1977); Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 17 (1976).

3 The cases cited by petitioner to support its contention that it

was denied an opportunity to offer evidence in support of its claim

that it committed only a good faith trespass are equally inapplicable.

They deal with deprivation of property rights, e.g., right to hearing

before service cut off by a utility. Memphis Light Gas & Water Div. v.

Craft, 436 U. S. 1, 16 (1978); right of a prisoner to be heard before

* disciplinary punishment is meted out to him; Wolff v. McDonnell, 418

U. S. 539, 557-58 (1974); or right to a hearing prior to assessment of

property taxes. Londoner v. Denver, 210 U. S. 373, 386 (1908).

-%

a

6

Nothing bearing even a remote resemblance to a procedu-

ral due process violation is presented by the foregoing con-

tentions. Mathews v. Eldridge, 424 U. S. 319 (1976).4

Petitioner’s further attempt to twist its wilful trespass into a

due process argument by claiming “reliance on counsel”’, is

equally devoid of merit. The Illinois test for wilful trespass is

the taking of minerals after actual notice of a prior or adverse

claim. This has always been the law of Illinois. Robertson v.

Jones, 71 Ill. 405 (1874). McLean County Coal Co. v. Long, 81

Ill. 359 (1876); Jilinois & St. Louis R.R. & Coal Co. v. Ogle, 91

Ill. 353 (1879); Bruner v. Hicks, 230 Ill. 536, 82 N. E. 888

(1907); Donovan v. Consolidated Coal & Coke Co., 236 Ill. 69,

58 N. E. 290 (1908); Guffey v. Smith, 237 U. S. 191, 59 L. Ed.

856 (1914); Lambach v. Town of Mason, 386 Ill. 41, 53 N. E.

2d 601 (1944); Shell Oil Company v. Manley Corp., 50 F. Supp.

21 (E. D. Ill. 1942).

Zeigler admitted “actual notice.”’5 It was therefore guilty of

wilful trespass as a matter of law. Guffey v. Smith, supra;

Bruner v. Hicks, supra; Lambach v. Town of Mason, supra.

4 Petitioner’s other cases can fairly be categorized as involving

other constitutional guarantees, e.g., state criminal statutes held void

for vagueness, e.g., Bouie v. Columbia, 378 U. S. 347 (1964); Grayned

v. City of Rockford, 408 U. S. 104, 108-109 (1972); Rose v. Locke,

423 U. S. 48, 50 (1975); Coates v. City of Cincinnati, 402 U. S. 611,

614 (1971), and cases cited by Zeigler at pp. 11-13 of its Petition.

5 Even absent Zeigler’s admission, the evidence of “actual no-

tice” to support the Illinois Supreme Court’s finding of a wilful

trespass is overabundant. The lease expired June 20, 1970. On July 6,

1971, the Dethloffs gave Zeigler notice of the expiration and offered to

discuss a new lease. On October 7, 1971, Zeigler acknowledged the

communication and agreed to meet. It never did. On October 11,

1971, the Dethloffs again offered in writing to negotiate a new lease.

Zeigler did not even respond. On January 6, 1972, the Dethloffs again

wrote proposing a new lease. Still no response. On February 16,

1972, plaintiff wrote again and again there was no response. Notwith-

standing all these repeated notices and warnings, on March 25, 1976,

(Footnote continued on following page)

7

Petitioner’s substantive due process argument is equally

hollow. In effect, petitioner is asking this court to con-

stitutionalize state trespass law and to substitute its judgment

for that of state courts in totally economic matters. This Court

has repeatedly rejected such attempts before. Griffin v.

Breckenridge, 403 U.S. 88 (1971); Paul v. Davis, 424 U.S. 693

(1976). As this Court very aptly observed in Paul v. Davis,

supra, the Fourteenth Amendment is not “a font of tort law to

be superimposed upon whatever systems may already be

administered by the states.” Any other course would require

this Court to second-guess the decisions of state courts in

economic matters—which this Court for more than half a

century has refused to do. City of New Orleans v. Dukes, 427

U. S. 297 (1976); Ferguson v. Skrupa, 372 U. S. 726 (1963);

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952).

As the Court emphasized in Day-Brite Lighting, Inc. v.

Missouri, 342 U. S. 421, 423, 425 (1952):

[We] do not sit as a superlegislature. [The] state

legislatures may within extremely broad limits control

practices in the business labor field.... [We] leave de-

bateable issues as respects business, economic and social

affairs to legislative decision.

This has obviously not been lost on Petitioner, for both Zeigler

and Amici Curiae lean on the importance of coal mining as an

energy source to persuade this Court to intervene con-

stitutionally. Petitioner and Amici Curiae are in effect asking

this Court to do a constitutional about-face and overrule all the

economic substantive due process cases decided by the Court in

the last forty years.

(Footnote continued from preceding page)

Zeigler, with characteristic arrogance, mailed the Dethioffs a “royalty

check” for coal it had surreptitiously mined from their land.

On April 19, 1976, plaintiffs’ counsel wrote Zeigler that it was

committing conversion, and demanded it to cease and desist. The

demand was rejected, and the Dethloffs filed suit. Zeigler still

continued mining.

This case offers no reason for doing so.

It should be noted that Petitioner makes no claim that this

case deals with a fundamental right or interest. Thus, the

constitutional validity of the Illinois rule for measuring dam-

ages for bad faith trespass, under the due process clause, must

be tested by the conceivable rational basis standard. Ferguson

v. Skrupa, 372 U.S. 726 (1963). By that test, the damage rule

here involved very definitely passes constitutional muster. The

Illinois Supreme Court from Robertson v. Jones, 71 Ill. 405

(1874) to Dethloff v. Zeigler, 82 Ill. 2d 393, 412 N. E. 2d 526,

535 (1980), has consistently recognized that the damages

imposed for wilful trespass is designed to discourage such

conduct. Otherwise, a wrong-doer, such as Zeigler in this case,

would have nothing to lose by invading and converting the

minerals of other property owners. Therefore, not only is there

here present a conceivable rational basis for the challenged

measure of damages—but there is a rational basis in fact.

Petitioner’s due process contentions do not raise a substan-

tial federal question or, for that matter, any federal question at

all.

The Petition must be denied.

9

CONCLUSION

The Petition for Writ of Certiorari is totally devoid of

merit. In the first place, Petitioner never raised or obtained a

ruling on its due process contentions at the state level, even

though the case was before the trial court, the Illinois Appellate

Court and the Illinois Supreme Court. Only on Petition for

Rehearing did even an inkling of a due process issue surface.

The Supreme Court of Illinois, however, did not pass on that

contention. It entered a one sentence order simply denying the

petition. Zeigler is therefore barred from raising its due process

questions now.

On the merits, Petitioner’s due process contentions, when

stripped of their veneer, are specially contrived to permit an

argument for certiorari jurisdiction. It is evident that all that is

involved and all that was ever involved in this case is the

interpretation of a mining lease under Illinois real property law

and the application of the established rule of damages for wilful

trespass.

This case involves no federal questions whatever.

10

Respectfully submitted,

LEONARD M. RING

ARNOLD F. BLOCKMAN

RAYMOND LEE, Jr.

Of Counsel: Attorneys for Respondents

LEONARD M. RING AND ASSOCIATES

111 West Washington Street

Chicago, Illinois 60602

(312) 332-1765

HATCH, BLOCKMAN & MCPHETERS

113 North Neil Street

P.O. Box 578

Champaign, Illinois 61820

(217) 356-2577

Law Offices of Raymond Lee, Jr.

Route 36 at Ohio Street

Tuscola, Illinois 61953

(217) 253-2100