Opposition Brief — Thomas v. Elliott

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SEN itis: ‘bg RYE

BE Sieber

No. 91-690

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

WILLIAM THOMAS, et al.,

Petitioners,

V.

WILLIAM J. ELLIOTT,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RESPONDENT'S MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Mark D. Hopson

SIDLEY & AUSTIN

Supreme Court, U.S.

a Se et

JAN 13 1992

OFFICE OF THE CLERK

1722 Eye Street, N.W.

Washington, D.C.

(202) 736-8188

Walter C. Carlson*

Daniel S. Kelly

20006

Brandon D. Lawniczak

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7000

Counsel for Respondent

William J. Elliott

“Counsel of Record

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Respondent, William J. Elliott, moves pursuant to 28 U.S.C. $

1915 to proceed in forma pauperis before this Court. On December

10, 1991, Respondent was requested to file a response to

Petitioners’ petition for a writ of certiorari in this case.

Respondent is currently incarcerated in the Illinois River

Correctional Center and is unable to pay the costs of proceeding

before this Court or give security therefor. The District Court

granted Respondent’s leave to proceed in forma pauperis at the

beginning of this action. Respondent has completed, signed, and

attached an affidavit as required by § 1915.

Accordingly, Respondent respectfuly requests that he be

allowed to proceed in forma pauperis.

ZL

Walter C. Carlson

IN THE

SUPREME COURT OF THE UNITED STATES

William Thomas, et al.,

Petitioners,

Vv. No. 91-690

William J. Elliott,

eee eee ee eee ee

Respondent.

AFFIDAVIT TO ACCOMPANY MOTION

FOR LEAVE TO PROCEED IN FORMA PAUPERIS

I, William J. Elliott, being first duly sworn, depose and

say that I am the Respondent in the above-entitled case; that in

support of my motion to proceed before this Court without being

required to prepay fees, costs or give security therefor, I state

that because of my poverty I am unable to pay the costs of said

proceeding or to give security therefor; that I believe I am

entitled to redress; and that I desire to present to this Court

the following: (1) a brief in opposition to Petitioners’

Petition for Writ of Certiorari pursuant to the request of this

Court; and (2) any other brief or motion that may become

necessary in connection with this case.

I further swear that the responses which I have made to the

questions and instructions below relating to my ability to pay

the cost of proceeding before this Court are true.

a. Are you presentiy employed?

Yes. I earn $30.00 per month as a clerk in the Maintenance

Tool Control Department of the Illinois River Correctional

Center in Canton, Illimois. I have had similar jobs in my

approximately 6 years of incarceration in other Illinois

correctional facilities.

re Have you received within the past twelve months any

income from a business, profession or other form of

self-employment, or in the form of rent payments,

interest, dividends, or other source?

Yes. I have received some money from my grandparents as a

gift, but no more than approximately $150.00.

3; Do you Own any cash or checking or savings account?

Yes. I have approximately $30.00 in an account at the

Illinois River Correctional Center.

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding

ordinary household furnishings and clothing) ?

No

S. List the persons who are dependent upon you for support

and state your relationship to those persons.

None.

I understand that a false statement or answer to any

e

questions in this affidavit will subject me to penalties for

perjury.

/

Peay N

A Glhhanva ehh tt

William J{ jElliott

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SUBSCRIBED AND SWORN to

before me this ~/. day of January, 1992.

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Pa , /

Notary Public

‘+

“OFFICIAL

MARY T. Kozel

Notary Public. State of |

My Com™

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al

CA OF RVICE

I, Carter G. Phillips, hereby certify that

one copy of the Respondent's Motion to Proceed in forma pauperis

in Williams v. Elliott, No. 91-690, was this 10th day of January,

1992, placed in the United States mail, first-class postage

prepaid addressed to the following:

Lawrence Rosenthal

Deputy Corporation Counsel

Frederick S. Rhine

180 N. LaSalle Street

Room 500

Chicago, IL 60601

lim. 6 x.

Carter G. Phillips

No. 91-690

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

WILLIAM THOMAS, et al.,

Petitioners,

V.

WILLIAM J. ELLIOTT,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI

AND SUGGESTION OF MOOTNESS

Mark D. Hopson

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8188

Walter C. Carlson*

Daniel S. Kelly

Brandon D. Lawniczak

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7000

Counsel for Respondent

William J. Elliott

“Counsel of Record

TABLE OF CO

Table of Authorities .....+. .

Reasons for Denying the Writ

Conclusion

NTS

ii

13

TABLE OF AUTHORITIES

Anderson v. Creighton, 483 U.S. 635 (1987)

Brown v. Grabowski, 922 F.2d 1097 (3rd Cir. 1990)

Burgess v. Pierce County, 918 F.2d 104 (9th Cir.

1990) er arr a |

Celotex Corp. v. Catrett, 477.U.S. 317 (1986)

Cohen v. Beneficial Industrial Loan ents 337

U.S. 541 (1949) “tn

DeFunis v. Odegaard, 416 U.S. 312 (1973) —

Hudgins v. City of Asburn, GA, 890 F.2d 396 (11th

Cir. 1989) << * + 6 © © 6 4, eee

Iron Arrow Honor Society v. Heckler, 464 U.S. 67

(1983)

Kaminsky v. Rosenblum, 929 F.2d 922 (2d Cir.

1991) tare w ee & « anne

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

(1990) ye on ke es we « 0h

Lion Boulos v. Wilson, 834 F.2d 504 (5th Cir.

1987) Cee hee 2 + & ee

Mitchell v. Forsyth, 472 U.S. 511 (1985)

Murphy v. Hunt, 455 U.S. 388 (1980)

Ramirez v. Webb, 835 F.2d 1153 (6th Cir. 1987)

Bichardson-Merre1) Inc. v. Koller, 472 U.S. 424

(1984) cee * * « & Speer

Riley v. Madnwxight 810 F.2d 1006 (11th Cir.

1986) coe oe} ew ae

United States Parole Commission v. Geraghty, 445

U.S. 388 (1980) ¢ «¢ « &. 2 2, be ee ee

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

(1950) . . . . . . . . . . . . . . . + . . .

United States v. O'Shaughnessy, 772 F.2d 112 (5th

Don’. « « « « «© + 6 @ ¢ « © = ©. elon

wiin

Unwin v. Campbell, 863 F.2d 124 (lst Cir. 1988) pe ae

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

Wright v. South Arkansas Regional Health Center,

SOO 9.28 300 teen Cari SOOO). se Se 3 ks 13

Miscellaneous

C. Wright, A. Miler, E. Cooper, 13A Federal

Practice 6 Proce@urée 26... «.+ + «.« 6 « » +8 10

~iii-

REASOWS FOR DENYING THE WRIT

Petitioners seek certiorari to review a decision of the

United States Court of Appeals for the Seventh Circuit in which

the court held that it had lacked jurisdiction to review an

interlocutory decision of the District Corut. The District Court

had denied Petitioners' summary judgment motion on the ground of

qualified immunity because the district court found genuine

issues of material fact concerning the "merits" of the action.

The petition should be denied because the trial of this case and

the jury verdict in favor of Petitioners have mooted the issue

raised in the petition. In any event, although Petitioners raise

an issue of importance to section 1983 plaintiffs, as to which

the Courts of Appeals have disagreed, the Seventh Circuit's

decision is correct and consistent with the opinions of this

Court on qualified immunity and interlocutory appeals.

1. Petitioners filed their petition for a writ of

certiorari on October 24, 1991. On two different occasions,

petitioners sought a stay from this Court to prevent trial of the

action from going forward. On both occasions, Justice Stevens as

Circuit Justice denied their motion. Accordingly, this section

1983 action was tried on December 16-20, 1991. On December 20,

1991, the jury returned a verdict in favor of all Petitioners on

all counts, and judgment was entered on that verdict on December

23, i991.

“Under Article TII of the Constitution, federal courts

may adjudicate only actual, ongoing cases or controversies."

Lewis v. Continental Bank Corp., 110 S. <t. 1249, 1253 (1990).

"This case-or-controversy requirement subsists through all stages

of federal judicial proceedings, trial and appellate. .. . The

parties must continue to have a 'personal stake in the outcome’

of the lawsuit." Id. at 1253-54. "Federal courts lack

jurisdiction to decide moot cases because their constitutional

authority extends only to actual cases or controversies." Iron

Arrow Honor Society v. Heckler, 464 U.S. 67 (1983). “In general

a case becomes moot 'when the issues presented are no longer

"live" or the parties lack a legally cognizable interest in the

outcome.'" Murphy v. Hunt. 455 U.S. 388, 396 (1980), quoting

United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396

(1980).

As a result of the jury verdict in favor of

Petitioners, there is no longer a "case or controversy" in this

matter.’ Petitioners have stood trial and no longer face any

risk ef liability in this case and, therefore, no longer need the

protection of qualified immunity. Indeed, the thrust of

' Because this petition involves an interlocutory appeal, the

petition should be dismissed and the Seventh Circuit's decision

should remain in effect. The rule articulated in United States

v. Munsingwear, Inc., 340 U.S. 36 (1950), that an appellate court

should vacate a lower court decision that has become moot on

appeal does not apply to interlocutory appeals. See United

States v. Q'Shaughnessy, 772 F.2d 112, 113 (5th Cir. 1985); see

also C. Wright, A. Miller, E. Cooper, 13A Federal Practice &

Procedure 2d § 3533.10, pp. 435-36 (general practice under

Munsingwear does not apply to interlocutory appeals).

-2-

Petitioners' petition was that they were entitled to a pre-trial

review of the “merits"® of this case. Now that the trial is over,

a decision by this Court would have no effect on Petitioners.

See Murphy, 455 U.S. at 481 (claim to pre-trial bail moot after

conviction). Thus, neither Petitioners nor Respondent has a

"personal stake" or "legally cognizable interest" in the issue

presented in this petition.

Nor does this petition fall within the "capable of

repetition, yet evading review" exception. For the exception to

apply, two elements must be present: "(1) the challenged action

was in its duration too short to be fully litigated prior to its

cessation or expiration; and (2) there is a reasonable

expectation that the same complaining party would be subjected to

the same action again." See Weinstein v. Bradford, 423 U.S. 147,

149 (1975). A “reasonable expectation" or a "demonstrated

probability” is required; a "mere physical or theoretical

possibility" is not enough. Murphy, 455 U.S. at 477.

Neither element is satisfied in this case. First, the

challenged action is not too short in duration to be fully

litigated. As the proceedings in this Court demonstrate, the

district court, the court of appeals, or this Court can grant a

stay of a trial pending this Court's review should the issue

arise in a future case and a stay be appropriate. Indeed,

Petitioners had two different opportunities to seek a stay here.

They also (unsuccessfully) sought stays from both the district

-3-

court and the Seventh Circuit. Further, summary judgment motions

on qualified immunity grounds frequently occur at the early

stages of litigation, long before most cases go to trial. Now

that the Seventh Circuit has conclusively decided the issue,

future rulings should come to this Court "with relative speed."

See DeFunis v. Odegaard, 416 U.S. 312, 319 (1973).

Second, there is no "demonstrated probability" that

Petitioners will again be denied an interlocutory appeal of a

qualified immunity ruling for the same reason challenged here.

This Court has no reason to believe that Petitioners will ever

again be defendants in a section 1983 action and “once again be

in a position to demand" a similar interlocutory appeal. See

Murphy, 455 U.S. at 484.°

In sum, the trial of this case and the jury verdict in

favor of Petitioners have obviated the issue raised in the

petition. "The controversy between the parties has thus clearly

ceased to be ‘definite and concrete' and no longer ‘'touch[es] the

legal relations of parties having adverse interests.'" DeFunis,

416 U.S. at 317.

. It is immaterial that Respondent may file an appeal of the

jury verdict. See Fed. R. App. P. 4 (notice of appeal must be

filed within 30 days of final judgment). This Court has held

that the possibility of a successful appeal after a jury verdict

does not give rise to a "reasonable expectation" under the

“capable of repetition, yet evading review" doctrine. See

Murphy, 455 U.S. at 482-83.

-4-

2. Assuming, argquendo, that the petition is not moot, the

writ should be denied because the Seventh Circuit's decision is

correct and fully consistent with this Court's opinions

addressing qualified immunity and interlocutory appeals. The

Seventh Circuit correctly held that public officials are not

entitled to automatic pretrial appellate review of summary

judgment motions after the district court finds genuine issues of

material fact concerning the "merits" of the plaintiff's case.

Qualified immunity does not confer on public officials a right of

special appeal under such circumstances. Such special treatment

would impose unreasonable delay on plaintiffs and undue burden on

appellate courts.

Petitioners misinterpret this Court's decisions in

Anderson v. Creighton, 483 U.S. 635 (1987), and Mitchell v.

Forsyth, 472 U.S. 511 (1985), and stretch those cases well beyond

their holdings. Neither Mitchell nor Anderson created such a

right of special appeal for public officials, and neither ruled

that the finality rule was inapplicable to appeals of qualified

immunity rulings on summary judgment.

The Seventh Circuit held that "Mitchell did not create

a general exception to the finality doctrine for public

employees." Petitioners' App., 5a. This Court has made it clear

that the "small class" of appealable interlocutory decisions must

satisfy the three criteria of the collateral order doctrine: the

decision must be effectively unreviewable after the proceedings

terminate; it must conclusively determine the disputed question;

and it must involve 2a “claifm} of right separable from, and

collateral to, rights asserted in the action." See Cohen v.

Beneficial Industrial Loan Corp., 3237 U.S. 541 (1949); Mitchell,

472 U.S. at 524-26. Yet, Petitioners completely ignore the

collateral order doctrine and mistakenly focus exclusively on

just one of the protections of qualified immunity -- immunity

from suit -- to support their jurisdictional argument.

In Mitchell, this Court applied the collateral order

doctrine analysis to qualified immunity rulings. This Court held

that under limited circumstances a summary judgment motion

denying a claim of qualified immunity is an appealable

interlocutory order. Stating that qualified immunity was both a

defense to liability at trial and an "entitlement not to stand

trial or face the other burdens of litigation," Mitchell, 472

U.S. at 526, this Court ruled that a summary judgment order that

denies a claim of qualified immunity satisfies the first two

criteria of the collateral order doctrine: it conclusively

determines an issue (the defendant's right not to stand trial)

which cannot be effectively reviewed after trial. Id. at 525-

27.

This Court, however, went on to state that the third

criterion -- the "separate from the merits" test -- would be

satisfied where the qualified immunity issue "can be decided with

reference only ta undisputed facts and in isolation from the

-6-

remaining issues of the case.“ Mitchell, 472 U.S. at 529-30 n.10

{emphasis added). Thus, this Court found "a claim of immunity .

- + conceptually distinct fron the merits of the plaintiff's

claim" only in very limited circumstances:

All [the court of appeals] need determine is a question

of law: whether the legal norms allegedly violated by

the defendant were clearly established at the time of

the challenged actions or, in cases where the district

court has denied summary judgment for the defendant on

the ground that even under the defendant's version of

the facts the defendant's conduct violated clearly

established law, whether the law clearly proscribed the

actions the defendant claims he took.

Mitchell, 472 U.S. at 528. Ina footnote to this passage, this

Court again “emphasized" that the appealable issue was a "purely

legal one." Id. at 528 n.9. This Court never suggested that the

"separate from the merits" criterion would be satisfied when the

underlying facts are found to be genuinely in dispute.

This Court's recognition that a public official "is

entitled to summary judgment if discovery fails to create a

genuine issue as to whether the defendant" committed the alleged

acts, did not eliminate the finality rule. Mitchell, 472 U.S. at

526; Anderson, 483 U.S. at 646 n. 6. Indeed, defendants of all

types are entitled to summary judgment after discovery if they

can show conclusively that the plaintiff's allegations are not

true. But neither Mitchell nor Anderson (a case which did not

even address the appealability issue) suggested that a public

official defendant could automatically appeal a summary judgment

order in which the trial court found a genuine issue of material

fact concerning the merits: of the action.°

When a trial court finds a genuine issue of material

fact concerning the merits of the action -- i.e., whether the

defendant engaged in the challenged conduct -- an appellate

court, as in this case, has no jurisdiction to review whether

those facts were properly found to be in dispute. While a

summary judgment motion does involve a determination of whether

the movant is entitled to judgment as a matter of law, see, e.g.,

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), denial of

the motion because of issves of fact is not an appealable

interlocutory decision. If it were, then all summary judgment

motions would be immediately appealable, and the Court's careful

line drawing in Mitchell and Anderson would have been wholly

unnecessary. It is only a legal ruling based on undisputed

facts, not a determination that there are genuinely disputed

facts, that is appealable under Mitchell.

Indeed, the only time this Court in Mitchell even mentioned

summary judgment after discovery was when it made the point that

qualified immunity was more than just protection from liability.

Mitchell, 472 U.S. at 526. In the "separate from the merits"

discussion -- the relevant part of the opinion for this analysis

-~- the Court referred only to "facts alleged" and "undisputed

facts" as the proper basis for a qualified immunity summary

judgment appeal. Likewise, when the Court stated in Anderson

that "discovery may be necessary before [the defendant's] motion

for summary judgment on qualified immunity grounds can be

resolved," the Court was referring to discovery "tailored

specifically to the question of [the defendant's] qualified

impunity" and not the underlying merits of the plaintiff's

claims. Anderson, 483 U.S. at 646 n.6.

-8-

3. In an effort to support their unwarranted extension of

Mitchell and Anderson, Petitioners advance a series of flawed

"public policy“ arguments. First, they argue that a public

official who did nothing wrong (despite the district court's

finding of genuinely disputed facts) should be entitled to an

interlocutory appeal to the same extent as an official who

arguably acted unlawfully. Second, Petitioners contend that

appellate courts are faced with the same burden whether they

review the factual record of a motion based on an "I didn't do

it" defense or on the lack of clarity of the law. Third, they

contend that the Seventh Circuit's decision violates the

principle that rules governing appellate jurisdiction should be

clear.

Petitioners' first argument ignores the finality rule

and assumes that the only concern is a public official's right

not to stand trial. As Mitchell demonstrates, however, the

finality rule is fully applicable to summary judgments for

qualified immunity. As this Court has often stated, the finality

rule exists to promote "efficient judicial administration" and to

avoid "unreasonable disruption, delay, and expense" and

"piecemeal appellate review." Richardson-Merrell Inc. v. Koller,

472 U.S. 424, 430 (1984). Further, the public official claiming

"I didn't do it" is amply protected by the district court's

consideration of a motion for summary judgment. If the district

judge concludes that there are disputed issues of fact as to

whether the public official violated clearly established rights,

-9-

such a defendant should stand trial just as should all other

defendants bringing unsuccessful motions for summary judgment.

In short, Petitioners’ argument has it backwards; by placing more

value on qualified immunity than the finality rule, it

unjustifiably would allow public officials to impose

"unreasonable disruption, delay, and expense" in every case in

which a plaintiff attempts to vindicate constitutional rights.

Likewise, Petitioners' second argument is

unconvincing. It is much less burdensome for an appellate court

to review a trial court's purely legal qualified immunity ruling

based on undisputed facts than to review in addition the trial

court's determination of what facts are actually in dispute.

Further, Petitioners' argument that Mitchell's focus was on a

public official's right not to stand trial rather than on the

burdens imposed on a court of appeals ignores the Court's

emphasis that the finality rule and collateral order doctrine

apply to qualified immunity rulings. Unless a qualified immunity

ruling satisfies the criteria of the collateral order doctrine,

the "disruption, delay, and expense" of an interlocutory appeal

outweigh a public official's right not to stand trial.

The third argument is simply wrong. An interlocutory

appeal is available onl¥ when the district court makes a

qualified immunity ruling based on uncontested facts. Where,

however, the district court finds the facts concerning the

"merits" to be genuinely in dispute, there is no appellate

-10-

jurisdiction. There is no ambiguity as to when a denial of a

Claim of qualified immunity is appealable.

4. Petitioners' statement that the Seventh Circuit's

decision conflicts with every other Court of Appeals that has

considered the issue is incorrect. The Second, Eleventh, and

Fifth Circuits agree with the Seventh Circuit. In Kaminsky v.

Rosenblum, 929 F.2d 922 (2d Cir. 1991), the Second Circuit ruled

that it "lack[ed] jurisdiction over" an appeal of a denial of

summary judgment on the grounds of qualified immunity because the

district court had found "unresolved disputed questions of fact."

Id. at 927. The court stated "[sJignificant to the instant

appeal is the rule that review is limited to those cases that can

be decided as a matter of law, not ones that turn on disputed

issues of fact." Id. at 926. Petitioners' attempt to explain

away this holding defies logic.

In Riley v. Wainwright, 810 F.2d 1006 (llth Cir. 1986),

the Eleventh Circuit held that it had no jurisdiction to review

the district court's denial of the defendant's motion for summary

judgment on qualified immunity because the district court had

found that the case "required substantial factual development."

Id. at 1907; see also Hudgins v. City of Ashburn, 890 F.2d 396,

403 (llth Cir. 1989) ("If questions of material fact are present,

then we are without jurisdiction under 28 U.S.C. § 1291 to review

that decision since the case will proceed to trial for resolution

of those factual guestions.")

-il-

Likewise, the Fifth Circuit in Lion Boulos v. Wilson,

834 F.2d 504 (5th Cir. 1987), held that a denial of a qualified

immunity claim was not immediately appealable where "the district

court was unable to resolve [a] factual issue based on the

conflicting versions of the [parties]." Id. at 508. Although

there had been no discovery in Boulos, the Fifth Circuit's

reasoning applies equally well to a summary judgment after

discovery in which a district court is unable to resolve a

factual] dispute.

Other Courts of Appeals have taken a different position

on this issue, but Petitioners exaggerate the differences. In

Ramirez v. Webb, 835 F.2d 1153 (6th Cir. 1987), for example, the

Sixth Circuit did not hold that an appellate court has

jurisdiction to review an interlocutory appeal of a district

court's finding of genuinely disputed facts. In Ramirez, the

district court had not determined that the facts of the

defendants' "I didn't do it defense" were in dispute; rather, the

district court had not made any relevant factual findings.

Accordingly, the court held that the issue was not "ripe for

review." Id. at 1159.

Likewise, in Unwin v. Campbell, 863 F.2d 124 (lst Cir.

1988), the First Circuit was not asked to review the trial |

court's determination of the disputed facts; rather, the court

held that in light of Anderson the district court had improperly

-j2-

reviewed only the allegations in the plaintiff's complaint and

then proceeded to review the factual record. Id. at 132.

Moreover, im Unwin, Judge Breyer dissented on the basis

articulated by the Seventh Circuit: that purely factually based

appeals were beyond the rationale articulated in Mitchell for

allowing interlocutory review. Id. at 137-41. Likewise, in

Brown v. Grabowski, 922 F.2d 1097 (3rd Cir. 1990), the facts

before the Third Circuit were "essentially uncontested;" thus,

the court was able to make a pure legal ruling on the qualified

immunity issue. Id. at 1101.

Neither the Ninth Circuit nor the Eighth Circuit has

given the issue significant consideration. The Ninth Circuit's

summary reasoning in Burgess v. Pierce County, 918 F.2d 104, 106

n. 3 (9th Cir. 1990), that the "question of immunity is

conceptually distinct from the plaintiff's claim on the merits,

Since it is the legal question of whether there are genuine

issues for the jury" failed to answer the question; a

sufficiency-of-the-evidence "legal question" is present in every

summary judgment motion. Similarly, in Wright v. South Arkansas

Regional Health Center, 800 F.2d 199, 202-03 (8th Cir. 1986), the

Eighth Circuit identified the problem, and then "nevertheless,"

without any reasoning, found the appeal proper merely because it

was "fully consistent with the spirit" of Mitchell.

In sum, the Seventh Circuit's decision is consistent

with this Court's decisions on qualified immunity and

interlocutory appeals. It strikes the correct balance between

_ the policies undergirding qualified immunity and the need to

avoid "unreasonable disruption, delay, and expense" and

"piecemeal appeallate review." Although the decisions of the

Seventh Circuit and three other circuits are different from those

of certain Courts of Appeals, the differences do not warrant

granting certiorari in this case.

CONCLUSION

For the reasons stated, the petition should be denied.

Respectfully submitted,

Mark D. Hopson

SIDLEY & AUSTIN

1722 Eye Sireet, N.W.

Washington, D.C. 20006

(202) 736-8188

Walter C. Carlson*

Daniel S. Kelly

Brandon D. Lawniczak

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7000

January 10, 1991

“counsel of Record

MOLF1BOO.URC (1/10/92 3:02am)

-~14-

SIDLEY &

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January 10, 1992 . ;

ASSOC TATE WiITit

WRITER'S DIRECT NUMBER HASHIDATE LAW OFFIC}

202-736-8270

1992

William K. Suter JAN 13

Clerk OFFICE OF THE CLERK

Supreme Court of the United States SUPREME COURT, U.S.

One First Street, N.E. —

Washington, D.C. 20543

Re: Williams v. Elliott, No 1-690

Dear Mr. Suter:

Enclosed please find a motion to proceed ~in forma

Dbauperis in the above case. Also yea for filing, are ‘twelve

typewritten copies of Respondent’ Brief in Opposition to the

Petition For A Writ of Certiorari ae The United States Court of

Appeals for the Seventh Circuit in the above-referenced case, as

well as the original certificate of service for this filing, and

a Notice of Appearance for counsel

Thank you for your assist

Enclosures

LWFYZELB SED (1/10/92 2: 1B om

AGH

7:3G-87 11

f-ET, N.W

WASHINGTON. DC

2000G

LONDON

7:36-8BOO0

SINGAPORI

TOKYO

JOINT OFFICE WITH

ASHURST MORRIS CRISP

of record.

ance in this matter

Sincerely,

ae, co :

( wt 6- (info

Phillips

Carter G.

APPEARANCE FORM

SUPREME COURT OF THE UNITED STATES

No. 91-6490

_ vs. om

Wietsan THOMAS ETAL. Wiewiam J, Eterotr

(Petitioner) (Respondent)

The Clerk will enter my appearance as Counsel of Record for Res PONRBE NT

—_

—

oO

(Please list names of all parties represented)

who IN THIS COURT is © Petitioner(s) f& Respondent(s) © Amicus Curiae

I certify that I am a member of the Bar of the Supreme Court of the "nited States:

Signature Wale 6g a a Se

(Type or print) Name __ WALTER C.D Careson ae nde oa RN

Mr. OMs. OMrs. C Miss

Firm SibrEy ah Aust : eee

Address Ove FuesT WaTiovte L424

City & State__C 4/6 AlzO , gee Zip GO GOS

Phone (3/2) _85:3 - 7737

Rule 9 \

APPEARANCE OF COUNSEL

.1. An attorney seeking to file a pleading, motion, or other paper in this Court in a

representative capacity must first be admitted to practice before this Court pursuant to

Rule 5. The attorney whose name, address, and telephone number appear on the cover

: of a document being filed will be deemed counsel of record, and a separate notice of ap-

pearance need not be filed. Ifthe name of more than one attorney is shown on the cover

of the document, the attorney who is counsel of record must be clearly identified.

.2. An attorney representing a party who wil! not be filing a document must enter a

separate notice of appearance as counsel of record indicating the name of the party rep-

resented. If an attorney is to be substituted as counsel of record in a particular case, a

separate notice of appearance must also be entered.

16021-2-90

CO-WA

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