# Opposition Brief — Crane v. Edward Hines Lumber Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3269%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1109 ## Text i ] No. 84-742 mea ; rs = ly Tue Supreme Court of the Unites States — Octoser Term, 1984 CLAIRE CRANE, ARNOLD CRANE and CLAIRE CRANE d/b/a CLAIRE CRANE CONSTRUCTION COMPANY, Petitioners, v. EDWARD HINES LUMBER COMPANY, an Illinois corporation, EDWARD L. DAUGHERTY, FRANKLIN I. KRAL and UNKNOWN CO-CONSPIRATOBRS, both Jointly and Individually, Respondents. On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit BRIEF OF RESPONDENTS, EDWARD HINES LUMBER COMPANY AND EDWARD L. DAUGHERTY, IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI CLAUSEN MILLER GORMAN CAFFREY & WITOUS, P.C. 5400 Sears Tower Chicago, Illinois 60606 (312) 876-1900 Attorneys for Respondents, Edward Hines Lumber Company and Edward L. Daugherty Of Counsel: James T. Ferro * Srerpuen D. Marcus Lisa Marco Kovsa * Counsel of Record Midwest Law Printing Co., Chicago 60611, (212) 321-0220 i COMPLIANCE WITH RULE 28.1 Pursuant to United States Supreme Court Rule 28.1, Edward Hines Lumber Company states that it has the following subsidiaries which are not wholly owned: Southern Mineral Corporation, Inc.; Northern Mineral Corporation; and EHLCO Foundation, an Illinois not-for-profit corporation. i TABLE OF CONTENTS COMPLIANCE WITH RULE 28.1 ........... TABLE OF AUTHORITIES ................. SUMMARY OF GROUNDS FOR DENYING REVIEW ON CERTIORARI .............. REASONS FOR DENYING THE WRIT: I PETITIONERS HAVE FAILED TO SET FORTH ANY GROUNDS MERITING REVIEW ON CERTIORARI. THEIR VITUPERATIVE AT- TACK ON THE JUDICIAL SYSTEM CANNOT OVERCOME THE FACT THAT THEY HAVE FILED A FRIVOLOUS LAWSUIT ......... Il. JURISDICTIONAL GROUNDS UNDER $1983 OR §1343 ARE ALSO LACKING WHERE, AS HERE, PETITIONERS ALLEGED INJURY RE- SULTING ONLY FROM “JUDICIAL ACTS.” THEIR ATTEMPT TO USE §1983 AS A SUB- STITUTE FOR AN APPEAL IN STATE COURT IS CONTRARY TO LAW ...........+.44.- III. EVEN IF, ARGUEN”O ONLY, THE COM- PLAINT STATED A . JRISDICTIONAL BASIS, PRINCIPLES OF E ‘UITY, COMITY AND FEDERALISM REQL.RED DISMISSAL OF TH CAGE occcccccccsccccccccsesscscese CONCLUBION .ncccccdcccccccccccesscncesens 11 TABLE OF AUTHORITIES Cases Bateman v. South Carolina State Port Authority, 298 F.Supp. 999 (D.S.C. 1969) ............. 10 Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187 i cosa coss'esveesdiacs Celano v. Celano, 537 F.Supp. 690 (E.D. Pa. 1982) . Cousins v. Wigoda, 463 F.2d 603 (7th Cir. 1972) . Dahl v. Akin, 630 F.2d 277 (5th Cir. 1980) ... Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 eS es caw ban en’e 7 Environmental Aid, Inc. v. Goddard, 433 F.Supp. i ae PEED Se pocbvseduresceseasec 8,9 ' Ex parte Poresky, 290 U.S. 30, 78 L.Ed. 152, 54 bie wen cave nde eb bee oe Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975) .. 7 Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 SO a ccc icseeesubesenseeee 4 Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 54 L.Ed. 482, 30 S.Ct. 326 (1910) ......... 4 Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 48 L.Ed2d 482 (1975) ............02. 9, 10 Humphreys v. Burke, 502 F.Supp. 449 (D.N.J. EEE AES a en 3,4 Iacaponi v. New Amsterdam Casualty Co., 258 F.Supp. 880, aff'd, 379 F.2d 311, cert. denied, 389 U.S. 1054 (W.D. Pa. 1966) ............ 5 In re Estate of Grabow, 74 Ill.App.3d 336, 392 CE wiivissenesvscenssocdvge 6 “I & © © iv Johnson v. Stone, 268 F.2d 803 (7th Cir. 1959) . Juidice v. Vail, 480 U.S. 327, 97 S.Ct. 1211, 51 ee 8 ee ee ere Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973) . Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. Be EE So hadcd aa wisceenieeeeiabewess Paul v. Davis, 424 U.S. 693, 42 L.Ed.2d 405, 96 ae. ROE PE rhb ok kere nese bSeKtA ne «> Reich v. City of Freeport, 388 F.Supp. 953 (N.D. Ill. 1974), aff'd, 527 F.2d 666 (7th Cir. 1975) . Resources for Human Development, Inc. v. Ferber, 387 F.Supp. 111 (E.D. Pa. 1975) ........... _ Schaffer v. Cook, 634 F.2d 1259 (10th Cir. 1980) . Sparkman v. McFarlin, 601 F.2d 261 (7th Cir. BNE Lssas Lede Cl oeeaKe Kesmen wane eke keae Ss Taylor v. Nichols, 558 F.2d 561 (10th Cir. 1977) . Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, Se ME ngs esas 4a no oNaxeoess Wartman v. Milwaukee County Court, 510 F.2d ee need wae pe eues Woods v. Holy Cross Hosp., 591 F.2d 1164 (5th es hE coeebtaeuuewes AN a sabenennesaess Other Authorities 10 10 6, 7 In THE Supreme Court of the Anited States Octoser Term, 1984 CLAIRE CRANE, ARNOLD CRANE and CLAIRE CRANE d/b/a CLAIRE CRANE CONSTRUCTION COMPANY, Petitioners, Vv. EDWARD HINES LUMBER COMPANY, an Illinois corporation, EDWARD L. DAUGHERTY, FRANKLIN I. KRAL and UNKNOWN CO-CONSPIRATORS, both Jointly and Individually, Respondents. On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit BRIEF OF RESPONDENTS, EDWARD HINES LUMBER COMPANY AND EDWARD L. DAUGHERTY, IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI SUMMARY OF GROUNDS FOR DENYING REVIEW OF CERTIORARI Petitioners have wholly failed to set forth any basis for review of the dismissal of their action on certiorari. Ignoring the guidelines set forth in Rule 17 of the rules of this Court, the petition merely consists of a general- sills ized and unsupported attack on Respondents and the en- tire judicial system. The plain fact is that the District Court correctly dismissed Petitioners’ action for lack of jurisdiction and that ruling was properly affirmed on appeal. Petitioners’ action, brought pursuant to Title 42 U.S.C. §§1343(3) and 1983, was founded on the allegation that they were deprived of their constitutional right to a trial by jury when a decision against them was rendered in a state court equity proceeding for foreclosure on 4 mechanic’s lien. It is, however, well settled that the Seventh Amendment is inapplicable to state courts. More- over, Petitioners’ counterclaim seeking damages at law remains pending in the state court and no determination precluding trial by jury has yet been made. Consequent- ly, the complaint was properly dismissed for lack of jurisdiction as being “obviously frivolous” and constitu- tionally insubstantial. Additionally, Petitioners’ complaint alleged nothing more than that Respondents participated in the judicial process by filing a lawsuit and rendering a decision therein. Such actions, however, cannot form the basis for jurisdiction under section 1983. Although Petitioners may be dissatis- fied with the state court holding a bench trial on the mechanic’s lien prior to transferring the counterclaim to law division for a jury trial, that decision was required under the applicable state statute governing the trial of equitable and legal matters. If Petitioners feel agrieved, their remedy is to appeal the decision to the state ap- pellate and supreme courts and not to institute a civil rights action in federal court. Moreover, with the counter- claim still pending in state court, the District Court prop- erly stayed its hand in the interests of equity, comity and federalism. As such, the Petition for Writ of Certiorari should be denied. ibis REASONS FOR DENYING THE WRIT I. PETITIONERS HAVE FAILED TO SET FORTH ANY GROUNDS MERITING REVIEW ON CERTIORARI. THEIR VITUPERATIVE ATTACK ON THE JUDICIAL SYSTEM CANNOT OVERCOME THE FACT THAT THEY HAVE FILED A FRIVOLOUS LAWSUIT. None of the “considerations governing review on cer- tiorari” set forth in Rule 17 of the rules of this Court are here present. No federal question is involved; there are no conflicting decisions in the Court of Appeals; there is no conflict with any applicable decisions of this Court; and the judgment of the Court of Appeals does not con- flict with Illinois law. On the contrary, the lack of jurisdiction of the federal courts to entertain the instant suit has been well estab- lished. In their District Court Complaint, Petitioners asserted that a judgment entered against them by Chan- cery Judge Kral in foreclosing a mechanics lien in an IIli- nois state court should be overturned because they were denied their purported right to a jury trial. The alleged basis for the District Court’s jurisdiction was Title 42 U.S.C. §1343(8) in that the bench trial purportedly violated Title 42 U.S.C. §1988, the Seventh and Fourteenth Amendments to the United States Constitution. Initially, it must be noted that the dismissal of Peti- tioners’ Complaint was warranted due to the fact that the allegations of the Complaint failed to allege an existing deprivation of due process or equal protection upon which jurisdiction under Title 42 U.S.C. §1343(3) can rest. See Humphreys v. Burke, 502 F.Supp. 449, 452 (D.N.J. 1980). a a Although Petitioners complain that they have been deprived of a jury trial on their counterclaim, the assertion is un- true. Judge Kral transferred the counterclaim (which is not described in the record and which could relate to mat- ters having no bearing to the foreclosure action), to law division where it remains pending. No determination pre- cluding trial by jury on the counterclaim has yet been made. While Petitioners speculate that the trial judge will rule that Judge Kral’s decision on the foreclosure court precludes a jury trial, “. . . such speculation is an insuf- ficient foundation on which to base federal jurisdiction.” Humphreys v. Burke, supra at 543; Cousins v. Wigoda, 463 F.2d 603, 607 (7th Cir. 1972). Moreover, Petitioners’ claim of a constitutional right to a jury trial in state court is patently frivolous and there- fore constitutionally insubstantial mandating dismissal. The issue raised by this case was crystallized in Hagans v. Lavine, 415 U.S. 528, 538-39, 94 S.Ct. 1872, 39 L.Ed.2d 577, 578 (1974), wherein this Court stated: “Here §§ 1343(3) and 1983 unquestionably authorized federal courts to entertain suits to redress the depri- vation, under color of state law, of constitutional rights. It is also plain that the complaint formally alleged such a deprivation. The district court’s juris- diction, a matter of threshold determination, turned on whether the question was too insubstantial for consideration.” Constitutional insubstantiality results if the lawsuit is “ob- viously frivolous” (Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 54 L.Ed. 482, 30 S.Ct. 326 (1910)), or is clearly unsound in light of prior case law. Ex parte Poresky, 290 U.S. 30, 31-32, 78 L.Ed. 152, 54 S.Ct. 3 (1933). The precise issue raised by Petitioners’ Complaint was considered and rejected as frivolous in Wartman v. Mii- waukee County Court, 510 F.2d 1380 (7th Cir. 1975), wherein the district court, swa sponte, dismissed a §1983 action filed against the state court and an insurance com- pany. As in the case at bar, Plaintiffs there asserted that they had been denied their constitutional right to a jury trial in a suit brought against them in the state court by the insurance company. In affirming the district court’s dismissal, the court stated: “In the case before us, however, a remand is unnec- essary since the district judge’s determination that the complaint is frivolous is correct and leave to pro- ceed in forma pauperis could have been denied. The Seventh Amendment, upon which plaintiffs’ claim is grounded, does not apply in state courts. Moreover, the federal district court does not have jurisdiction over the state, and if we assume the judge of the court is intended as the defendant, he is immune from liability for damages. Finally, the only activity of the insurance company which could be considered as being ‘under color of state law’ for the purposes of 42 U.S.C. §1983 would be its character as plain- tiff in the state court action and this would not be sufficient.’”’ (emphasis added) (510 F.2d at 134). The court in lacaponi v. New Amsterdam Casualty Co., 258 F. Supp. 880, affd, 379 F.2d 311, cert. denied, 389 U.S. 1054 (W.D.Pa. 1966), similarly held: “A litigant in a state court civil action has no con- stitutional right to a trial by jury under the Seventh Amendment or under the due process clause of the Fourteenth Amendment. A State may establish its own procedures and practices with regard to the con- duct of civil litigation including the right of trial by jury. Hardware Dealers Mui. Fire Ins. Co. of Wis- consin v. Glidden Co., 284 U.S. 151, 52 S. Ct. 69, 76 L.Ed. 214 (1931).” (258 F. Supp. at 884). alin Accord: Minneapolis & St. L. R.R. v. Bombolis, 2A1 US. 211, 217 (1916); Woods v. Holy Cross Hosp., 591 F.2d 1164, 1171 n.12 (5th Cir. 1979); In re Estate of Grabow, 74 Il.App.3d 336, 338, 392 N.E.2d 980 (1979). The law being well settled, both the district court and the court of appeals properly found that Petitioners’ claim of a violation of their purported right to a jury trial was “obviously frivolous” mandating dismissal for want of jurisdiction. Il. JURISDICTIONAL GROUNDS UNDER $1983 OR $1343 rit shanez ii Wh fis imine jsiies 85 el aashit ai : sh li ti i pen ; i Hy Ue HHH Lae iy " it staat) Hee eel HF Ei Hn Heli ih Harte sii -™ acted maliciously, oppressively, vindictively and in con- cert add anything of substance for jurisdictional purposes. Even if Hines and Daugherty could be accused of the tort of abuse of process (and simply by filing a foreclosure ac- tion containing unspecified allegations which “were untrue and made in bad faith’ (Complt. 440), they could not), there still would be an insufficient foundation for juris- diction under § 1983. Taylor v. Nichols, supra. That sec- tion “. . . is not designed to be a ‘font of federal tort law’ ” (Environmental Aid, Inc. v. Goddard, 433 F Supp. 906, 913 (W.D. Pa. 1977); Paul v. Davis, 424 U.S. 693, 701, 42 L.Ed.2d 405, 413, 96 S.Ct. 1155 (1976)) and the fact that a tort may have been committed by Hines and Daugherty does not mean that a federal constitutional right has been invaded. Id.; Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187 (5th Cir. 1978). Moreover, nothing in the record indicates that any of the parties acted outside the confines of the neutral func- tion of a judicial forum. As declared by the court in Celano v. Celano, 537 F.Supp. 690, 695 (E.D. Pa. 1982): See also Sparkman v. McFarlin, 601 F.2d 261, 262 (7th Cir. 1979) (Fairchild, C. J., concurring); Johnson v. Stone, 268 F.2d 803, 804-05 (7th Cir. 1959). —9— Rule 232, properly tried the foreclosure action before transferring the remainder of the suit to law division. Viewed from this perspective, it is clear that the com- plaint is nothing more than an improper attempt to have Judge Kral’s decision overturned by the federal courts rather than the appellate courts of Illinois. Section 1983, however, is not a substitute for an appeal to the Illinois Appellate and Supreme Courts. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Environmental Aid, Inc. v. Goddard, 433 F Supp. 906 (W.D. Pa. 1977); Resources for Human Devel- opment, Inc. v. Ferber, 387 F.Supp. 111 (E.D. Pa. 1975); Reich v. City of Freeport, 388 F.Supp. 953 (N.D. Ill. 1974), aff'd, 527 F.2d 666 (7th Cir. 1975). As the court so aptly stated in Environmental Aid, supra at 911: “If summary judgment were to be denied, it would encourage any any litigant dissatisfied with a state court decree involving state officials acting under color of rw he by bri a civil rights action in a Sand Sc cae ut exhausting state ap- sine euuiies.” mare Petitioners’ remedy similarly lies with pursuing those ave- nues of relief provided by the Illinois appellate process and their federal action was properly dismissed. EVEN IF, ARGUENDO ONLY, THE COMPLAINT STATED A JURISDICTIONAL BASIS, PRINCIPLES OF EQUITY, COMITY AND FEDERALISM REQUIRED DIs- MISSAL OF THIS CASE. The remaining pendency of the counterclaim in the law division is an immovable object which repels the force of the complaint even if it does state a jurisdictional basis. It is well settled that principles of equity, comity and slits federalism bar interference by federal courts in ongoing state proceedings unless there is no opportunity for plain- tiffs to vitiate their constitutional rights either because of bias by the state court judges who will hear the mat- ter at the trial and appellate levels or because the state statute under which the litigation arose is unconstitutional in every word, paragraph and clause. See Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). Neither precondition has been met in the instant case. There has been no allegation -‘ bias nor that Illinois Supreme Court Rule 232 is unconstitutional. Indeed, it would be totally incongruous for Petitioners to allege that Rule 232 is unconstitutional since they base their claim upon its alleged violation. Additionally, the state courts are competent to rectify any purported violation of Peti- tioners’ constitutional rights. See Bateman v. South Carolina State Port Authority, 298 F.Supp. 999 (D.S.C. 1969); Lynch v. Snepp, 472 F.2d 769, 774 (4th Cir. 1973). Under these circumstances, abstention is required. Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486; Huffman v. Pursue, Ltd., supra. | CONCLUSION For all of the foregoing reasons and upon the author- ities cited, the Petition for Writ of Certiorari should be denied. Respectfully submitted, CLAUSEN MILLER GORMAN CAFFREY & WITOUS, P.C. 5400 Sears Tower Chicago, Illinois 60606 (312) 876-1900 Attorneys for Respondents, Edward Hines Lumber Company and Edward L. Daugherty Of Counsel: JAMES T. FERRINI * STEPHEN D. MARCUS LisA Marco KousBa * Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3269%3A2. Public record. Not legal advice.