Reply Brief — Village of Crestwood v. Doe

Supreme Court, U.S.

FILED

\ MAY 15 1991

No. 90-1573 oe

/

>

In THE

Supreme Caurt of the United States

OCTOBER TERM, 1990

VILLAGE OF CRESTWOOD, ILLINOIS, and

CHESTER STRANCZEK, Mayor of

Crestwood, Illinois, in his official capacity,

Petitioners,

JOHN DOE,

Respondent.

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

VINCENT J. BISKUPIC THomas K. McQuUEEN

Centennial Place Building Barry LEVENSTAM

445 West Jackson Avenue Counsel of Record

Suite 201 Conor D. McAULIFFE

Naperville, Illinois 60540 JENNER & BLOCK

(708) 357-6393 One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Counsel for Petitioners

May 15, 1991

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ................. il

Ae DUE cae boas Cra ee ee eke sane 1

I.

THIS CASE IS NOT MOOT ..... cece cveens 2

II.

IF THIS CASE WERE MOOT, RESPONDENT

WOULD NOT BE A PREVAILING PARTY UN-

ee Ge ee a sco ek ean tes esas 6

III.

REVIEW OF THE COURT OF APPEALS’ DE-

CISION IS WARRANTED ................. 8

RPE ee neko Oe aes eee aware cans 10

PE RE ee ees Sake shade ehe ees A-79

ll

TABLE OF AUTHORITIES

Cases PAGE

Alioto v. Williams, 450 U.S. 1012 (1981)...... 7

Burlington N.R. Co. v. Maintenance of Way Em-

ployees, 481 U.S. 429 (1987) ............... 3

Carroll v. Princess Anne, 393 U.S. 175 (1968) ... 4,5

Kay v. Douglas, 484 U.S. 1032 (1987) ......... 7

ize v. Weisman, No. 90-1014 «.i0. 0c ccsninies 9

Lemon v. Kurtzman, 403 U.S. 602 (1971)...... 8,9

Lewis v. Continental Bank Corp., 110 S. Ct. 1249

eer rrr rere rr rr rs

Nebraska Press Ass’n v. Stuart, 427 U.S. 539

~

(FONG 84500406 debe esha dee 3

Porter v. Warner Co., 328 U.S. 395 (1946) ..... 6

Southern Pacific Terminal Co. v. ICC, 219 US.

| Sr ere er rere eer passim

United States v. Munsingwear, Inc., 340 U.S. 36

PEPONE Cie ckane saccuswemew eae ane 6, 7

Walker v. Birmingham, 388 U.S. 307 (1967)... 5

Weinstein v. Bradford, 423 U.S. 147 (1975).... 2,3

Constitutional and

Statutory Provisions

UC. ARNON © ocx cc ccaccaaceunweeenes passim

Se Vian FOROS cei nseeescusgaveeucsaeeee 6,7

No. 90-1573

IN THE

Supreme Court of the United States

OcTOBER TERM, 1990

VILLAGE OF CRESTWOOD, ILLINOIS, and

CHESTER STRANCZEK, Mayor of

Crestwood, Illinois, in his official capacity,

Petitioners,

JOHN DOE,

Respondent.

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Petitioners, the Village of Crestwood, Illinois, and

Mayor Chester Stranczek, in his official capacity, submit

this reply in support of their petition for a writ of cer-

tiorari in this case.

In his brief in opposition, respondent John Doe devotes

secant attention to the merits of the underlying dispute.

Rather, he argues that procedural obstacles prevent re-

view of this case. Specifically, respondent argues that the

case is moot and that it is inappropriate for the Court

to consider this case because the record is not fully de-

veloped. Both of these arguments result from respondent’s

_

decision not to file suit until the afternoon before the

mass. Neither of these arguments precludes consideration

of the merits of this case.

i.

THIS CASE IS NOT MOOT.

This case is not moot because it falls squarely within

the “‘capable of repetition, yet evading review” exception

to the actual case-and-controversy requirement. Southern

Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

A situation is “capable of repetition, yet evading review”

where ‘(1) the challenged transaction was in its duration

too short to be fully litigated prior to its cessation or ex-

piration, and (2) there was a reasonable expectation that

the same complaining party would be subjected to the

same action again.”’ Weinstein v. Bradford, 423 U.S. 147,

149 (1975). This case satisfies both of these requirements.

A. This case satisfies the first prong of the Southern

Pacific/ Weinstein test: the ‘‘challenged transaction,” 7.e.,

the injunction of the festival’s mass, “‘was in its duration

too short to be fully litigated prior to its cessation or ex-

piration.” Jd. Despite substantial advance publicity, re-

spondent did not file suit to enjoin the Italian mass until

the afternoon of the day before the mass was scheduled

to take place. After hearing brief oral argument, the dis-

trict court issued the temporary restraining order at 6:00

p.m. the same day. About an hour later, petitioners filed

a short emergency motion with the Court of Appeals seek-

ing a stay of the district court’s order. This motic. was

denied early the following afternoon, and the mass was

not held in the park as planned.

pe

This Court has held that orders having a longer life than

the order at issue here satisfy the ‘evading review” ele-

ment of the Southern Pacific exception. See, e.g., Burling-

ton N.R. Co. v. Maintenance of Way Employees, 481 U.S.

429, 436 n.4 (1987) (injunction on secondary picketing in

railway dispute); Nebraska Press Ass’n v. Stuart, 427 U.S.

539, 546-47 (1976) (protective order on press coverage of

criminal trial). If the Court declines to address the issues

in this case on the ground of mootness, “the dispute will

evade review, or at least considered plenary review in

this Court, since [the] orders are by their very nature

short-lived.” Nebraska Press, 427 U.S. at 547.

B. This case also satisfies the second prong of the

Southern Pacific/ Weinstein test: there is a “reasonable

expectation” that the Village of Crestwood will “tbe sub-

jected to the same action again.”’ Weinstein, 423 U.S. at

149. The Village has traditionally permitted ethnic festi-

vals, including traditional religicus celebrations, to pro-

ceed on Village property. A-2.! Indeed, the Village re-

ceived a request dated February 14, 1991 from the Polish

American Community Fair Organization for permission to

host a Polish festival at the Village’s Caesar Park. As

the request for permission states, this festival will include

an ethnic Polish mass. A-79.

The Village will issue this permit. The Village does not

intend to sponsor the Polish mass, but it also did not in-

tend to sponsor the mass at the 1990 Italian festival. See

A-7, A-22-A-24. Hence, it is reasonable to expect that re-

spondent or someone else will file an eleventh-hour lawsuit

to enjoin the celebration of the planned ethnic Polish mass

1 Appendix pages A-1 through A-78 are appended to the Peti-

tion; pages A-79 through A-81 are appended to this Reply.

willie

on Village property. By waiting until the last moment

again, the respondent (or his counterpart) will be able to

deprive the Village of any meaningful opportunity to es-

tablish that it is not sponsoring the mass. The decision

below may well be used as precedent against the Village

under these circumstances, unless this Court addresses

this issue now.

Carroll v. Princess Anne, 393 U.S. 175 (1968), demon-

strates that this case satisfies the ‘capable of repetition’’

element of the Southern Pacific test. The petitioners in

Carroll were members of a white supremacist group that

held a public rally in Princess Anne, Maryland, on August

6, 1966. At this rally, petitioners made militantly racist

speeches to a crowd of whites and blacks, and then an-

nounced that the rally would resume the following night.

Id. at 176. The next day, local offieials obtained an ex

parte order from a state court that restrained petitioners

from resuming the rally for ten days. Jd. at 177. After

a trial, the court extended the effect of its earlier order

for ten months. The Maryland Court of Appeals affirmed

the ten-day order but reversed the ten-month order as un-

reasonable.

Petitioners sought certiorari to chailenge the long-expired

ten-day restraining order. Because petitioners planned to

hold rallies in the future and had sought permits to do

so from respondents, id. at 178 n.4, this Court recognized

that the challenged situation likely would recur, and that

it was important to resolve the underlying question. Jd.

at 179. Consequently, this Court held that the case was

not moot, and addressed the issue of “‘whether, by what

processes, and to what extent the authorities of the local

governments may restrict petitioners in their rallies and

public meetings.” Jd.

—)—

The Carroll Court further noted that its decision to ad-

dress the merits was appropriate in light of petitioners’

compliance with Walker v. Birmingham, 388 U.S. 307

(1967). In Walker, the Court had held that an enjoined

party cannot challenge the constitutionality of an injunc-

tion in the contempt proceedings that follow a violation

of that injunction; instead, the proper procedure is to obey

the injunction and seek judicial review. Because the Carroll

petitioners “pursued the course indicated by Walker,” the

Carroll Court “[could] not say that their case is moot.”

393 U.S. at 179.

The Village also proceeded in accordance with Walker:

it obeyed the restraining order and attempted to pursue

its appeal but never received the opportunity to brief or

argue the merits of its appeal in the court of appeals. Fur-

ther, as in Carroll, the Village has established that the

challenged situation will recur in the future. In addition

to the Italian festival, the Village has held Polish festivals

with traditional Polish masses on Village property for the

past six years. A-2. And the Village currently has before

it an application for a permit to hold the seventh annual

Polish festival at which a traditional Polish mass will again

be celebrated. A-79. As noted above, the Village intends

to issue the permit, which likely will prompt litigation all

over again.

C. The fact that the district court dismissed the com-

plaint at petitioners’ request is irrelevant to the question

whether this case is “capable of repetition, yet evading

review.’ Once the traditional Italian mass was restrained,

all that remained of the complaint was a request for per-

manent injunctive relief against petitioners. Because the

Village then had no plans to sponsor any masses, as peti-

tioners’ motion to dismiss and supporting papers accurate-

win

ly point out (Opposition App. la-18a), there was nothing

to enjoin. Further litigation in the district court on respon-

dent’s complaint would have been a meaningless exercise.

The dismissal of the complaint, however, did not moot

the very live issue of whether the lower courts erred in

issuing and upholding the order that restrained the tradi-

tional Italian mass. Indeed, the very essence of the “‘capa-

ble of repetition, yet evading review” doctrine is that the

resolution of the immediate controversy between the par-

ties does not moot the case because there is a reasonable

expectation that the issues involved will recur. See Porter

v. Warner Co., 328 U.S. 395 (1946).

D. Finally, based on its conclusion that respondent was

a “prevailing party” under 42 U.S.C. § 1988, on April 23,

1991, the district court ordered the Village to pay re-

spondent’s attorneys’ fees and expenses in the amount of

$14,597.08 for the trial and appellate court proceedings.

A-80. If this Court takes this case and reverses the deci-

sion below, the respondent will no longer be a ‘“‘prevail-

ing party.” Consequently, the district court will be re-

quired to vacate its fee award and instead order respon-

dent to pay petitioners’ fees, as they would be the pre-

vailing parties. For that reason as well, this case is not

moot.

Il.

IF THIS CASE WERE MOOT,

RESPONDENT WOULD NOT BE A PREVAILING PARTY

UNDER 42 U.S.C. § 1988.

Respondent’s argument under United States v. Muns-

ingwear, inc., 340 U.S. 36 (1950), contradicts his argument

that this case is moot. If this case were moot—it is not—it

would have become moot in the afternoon of August 11,

—-(—

1991, after the court of appeals denied the Village’s

emergency stay motion, A-1, when the Village obeyed the

district court’s restraining order. Hence, the case would

have been moot for 2% months when the court of appeals,

without the benefit of briefs from the parties, issued its

opinion, and for 3% months when the district court dis-

missed the remainder of respondent’s complaint, i.e., his

request for a permanent injunction.

Moreover, two justices of this Court have stated that

where a case becomes moot before it travels the full ap-

pellate course, there can be no “prevailing party” within

the meaning of the 42 U.S.C. § 1988, and therefore no

award of fees under that statute. In Alioto v. Williams,

450 U.S. 1012 (1981), dissenting from the Court’s decision

to deny a petition for a writ of certiorari, then Justice

Rehnquist, with Justice White, opined that parties should

not be forced to bear an award of fees where their case

became moot before they had been finally determined to

have violated the law and where they have steadfastly

maintained their innocence. /d. at 1013-14. Justice Rehn-

quist suggested that in these circumstances the courts

should follow the procedure outlined in Munsingwear, 340

U.S. at 39-40, of vacating the judgment of the court of

appeals and remanding the case with instructions to dis-

miss the complaint. /d. at 1014. See also Kay v. Douglas,

484 U.S. 1032 (1987) (White, J., dissenting from denial of

writ of certiorari).2

2 This Court also recently raised the question of whether an

award of Section 1988 fees is appropriate where the judgment was

mooted after the judgment was rendered but before the losing

party could challenge its validity on appeal. Lewis v. Continental

Bank Corp., 110 S.Ct. 1249, 1256 (1990). The Court did not answer

the question because it had not been raised below. The Court in-

stead suggested that the lower courts consider it upon remand.

=

Petitioners have never had the opportunity to submit

full argument to any court on the propriety of the district

court’s restraining order. At the same time, petitioners

have steadfastly maintained that their conduct did not vio-

late the Establishment Clause. Consequently, if this Court

concludes that this case is moot, it should vacate the judg-

ment of the court of appeals and remand the case with

instructions to vacate the award of attorneys’ fees and

expenses.

Il.

REVIEW OF THE COURT OF APPEALS’

DECISION IS WARRANTED.

Respondent’s argument that this case is not appropriate

for review ignores the fact that the record in this case

owes its brevity exclusively to his unexplained eleventh-

hour filing. If this Court accepts this as a reason for

declining to hear this case, it will only encourage such

last-minute filings, and will leave petitioners hostage to

a respondent who can avoid full litigation of these issues

in future cases simply by repeating his tardy filing.

More important, the record in this case provides a suffi-

cient basis on which this Court may decide the two Ques-

tions Presented. The district court found that the Village

sponsored the mass; the court of appeals affirmed that

finding; and petitioners do not now challenge it. (Petition

pp. 4-6 & n.1.) The record thus squarely presents the

question whether the Village may sponsor this festival

mass without violating the Establishment Clause.

Furthermore, petitioners’ counsel, the district court, and

the dissenting appellate judge all complained of difficulties

in understanding and applying Lemon v. Kurtzman, 403

collins

U.S. 602 (1971), and the court of appeals majority simply

ignored that case in its opinion. It is thus difficult to

imagine a more suitable case for reconsidering the Lemon

test. Indeed, Lee v. Weisman, No. 90-1014, presents the

very same question to this Court in the context of a public

school graduation; by taking this case with Lee, this Court

will be able to reconsider Lemon and Establishment

Clause jurisprudence in school and non-school contexts at

once.

Finally, now that petitioners have addressed the merits

of this case for the first time, respondent has no answer

to petitioners’ assertion that the decision below “has writ-

ten the end to more than 200 years of ‘religious service[s]

under governmental auspices’ in this country.” (Petition

p. 8.) He offers no explanation for the “service carefully

arranged for by both houses of Congress”’ after President

Washington’s inauguration (Petition p. 9 quoting Stokes,

p. 485), for 50 years of regular Sunday services in the

House of Representatives, for 100 years of sectarian sup-

port for Indian tribes, or for the prayer to the Holy Trinity

at President Bush’s inauguration. Nor does respondent

even suggest, in view of these historical facts, that the

Lemon test correctly effectuates the purpose of the Estab-

lishment Clause.

=

CONCLUSION

For the foregoing reasons, petitioners respectfully re-

quest that this petition for writ of certiorari to the United

States Court of Appeals for the Seventh Circuit be granted

and the case set for plenary review.

Respectfully submitted,

VINCENT J. BISkUPIC THomas K. McQuEEN

Centennial Place Building Barry LEVENSTAM

445 West Jackson Avenue Counsel of Record

Suite 201 Conor D. McAuLirre

Naperville, [Illinois 60540 JENNER & BLOCK

(708) 357-6393 One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Counsel for Petitioners

Dated: May 15, 1991

A-79

APPENDIX

CHICAGO HEIGHTS. ILLINOIS

60411

2/14/91

Village of Crestwood Recreation Department,

Once again plans are being made for our

three day festival of the Polish American Community Fair

Organization to be held at Caesar's Park and Fairgrounds.

As in the past, as part of ovr heritage and tradition we

are seeking permission to hold a Mass on Sunday July 28th,

1991 at 10:30 A.M. to culminate our 3 day event on your

fairgrounds.

Respectfully Yours

Peg Poggne

A-80

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOHN DOE, ) r

)

Plaintiff, )

V. ) No. 90 C 4655

)

VILLAGE OF CREST- _ )

WOOD, et al., )

)

Defendants. )

ty"

MEMORANDUM ORDER

This Court’s April 2, 1991 memorandum opinion and

order determined that plaintiff John Doe (“Doe’’) was the

“prevailing party” in this 42 U.S.C. $1983 litigation

against the Village of Crestwood and its Mayor Chester

Stranczyk (collectively ‘‘Village’’), thus entitling Doe to

an award of attorneys’ fees and related out-of-pocket ex-

penses under 42 U.S.C. §1988. Doe’s counsel have since

then supplemented their petition for fees and expenses,

and Village’s counsel has orally confirmed in open court

that there is no objection to the additional items reflected

in that supplement.

Accordingly Doe is awarded an aggregate of $13,715.50

in fees and $881.58 in out-of-pocket expenses, for a total

of $14,597.08. Village has asked for a stay of enforcement

of any order to pay that amount, but no persuasive reason

has been advanced for such a stay. Accordingly Village

is ordered to pay the amount of the award forthwith. This

A-81

is intended to constitute a final order for the entry of

judgment fer the payment of that amount.

Milton I. Shadur

United States District Judge

Date: April 22, 1991