Opposition Brief — Cronson v. Clark

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: e Supreme Court, U.S.

No. 86-1870 FILED

JUN 9~¢ - 1987

In THE JOSEPH F. SPANIOL, JR.

Supreme Court of the Unite Sates

Ocrosrr Term, 1986

ROBERT G. CRONSON, as Auditor General

of the State of Illinois, and Individually,

Petitioner,

v.

HONORABLE WILLIAM G. CLARK, Chief Justice,

Ii‘nois Supreme Court, et al.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Terry F. Moritz *

GOLDBERG, KOHN, BELL, BLACK,

ROSENBLOOM & MORITZ, LTD.

55 East Monroe Street

Chicago, Illinois 60603

(312) 332-2177

Attorneys for Respondent,

Honorable Seymour Simon

Atan P. Sotow

Mrinpy Brock Gorpon

JOANNE M. Harmon

Of Counsel * Counsel of Record

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

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QUESTION PRESENTED FOR REVIEW

Was the Court of Appeals for the Seventh Circuit cor-

rect in affirming the District Court for the Central Dis-

trict of Illinois’ decision to refuse to enjoin proceedings

before the Illinois Supreme Court where the substantive

issue in those proceedings turned entirely upon a construc-

tion of state constitutional law and implicated important

state interests?

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...

TABLE OF COMTENYS <o..c...caseinen

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

STATEMENT OF THE CASE ...............

REASONS FOR DENYING THE WRIT .....

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PETITIONER HAS NOT SHOWN WHY CER-

TIORARI SHOULD BE GRANTED ........

Il.

THE DISTRICT COURT CORRECTLY AP-

PLIED WELL SETTLED PRINCIPLES OF

FEDERALISM AND COMITY .............

Ill.

THE COURT OF APPEALS CORRECTLY HELD

THAT THE DUE PROCESS CLAUSE CANNOT

REMEDY HYPOTHETICAL INJURIES ....

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TABLE OF AUTHORITIES

CASES

Allen v. Wright, 468 U.S. 737 (1984) ........ ae

Baker v. McCollan, 448 U.S. i87 (1979) .......

Board of Regents v. Roth, 408 U.S. 564 (1972) ..

Cronson v. Clark, No. 86-3180, slip op. (C.D. Ill.

URE C Lac hhs Yess «dba uk es dk oe 4%. exes

Cronson v. Clark, 645 F. Supp. 793 (C.D. Ill. 1986) .

Cronson v. Clark, 810 F.2d 662 (7th Cir. 1987) ..

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) .

Middlesex Ethics Comm. v. Garden State Bar

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Younger v. Harris, 401 U.S. 87 (1971) ........

CONSTITUTIONAL PROVISIONS

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STATUTORY PROVISIONS

SS

OTHER AUTHORITIES

United States Supreme Court Rule 17 ........

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Supreme Court of the United States

OcrosEer TERM, 1986

ROBERT G. CRONSON, as Auditor General

of the State of Illinois, and Individually,

Petitioner,

v.

HONORABLE WILLIAM G. CLARK, Chief Justice,

Illinois Supreme Court, et al,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

STATEMENT OF THE CASE

This case arose from petitioner’s request that the United

States District Court for the Central District of Illinois

enjoin proceedings filed against him in the Illinois Supreme

Court. The Illinois Supreme Court proceedings related to

a dispute involving a determination of the extent of peti-

tioner’s obligations as Auditor General of Illinois to audit

certain state expenditures. The District Court denied peti-

tioner’s motion for a preliminary injunction and subse-

quently dismissed the suit on grounds of comity and fed-

eralism. The United States Court of Appeals for the Seventh

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Circuit affirmed the denial of the preliminary injunction

and the dismissal of the suit because it found that petitioner

had suffered no injury on which his suit might be based and

therefore lacked standing. The Court of Appeals also unani-

mously denied petitioner’s motion for rehearing en banc.

Most of the petitioner’s Statement of the Case is simply

irrelevant to this petition, as evidenced in part by the

five questions presented for review that are identical to

the questions presented for review in a separate petition

for writ of certiorari, Cronson, Auditor General of the State

of Iilinois v. William M. Madden, Acting Director of the

Administrative Office of the Illinois Courts, No. 86-1773,

filed May 1, 1987. The major inaccuracy in petitioner’s

Statement of the Case is the assertion that “at no point

in the federal proceedings did petitioner ever seek resolu-

tion of any state issue.” (Petition at 7) This is untrue.

In seeking to enjoin the state court from ruling on an

issue of state law, petitioner sought to deny the state the

right to decide a question of important state interest.

REASONS FOR DENYING THE WRIT

PETITIONER HAS NOT SHOWN WHY CERTIORARI

SHOULD BE GRANTED.

United States Supreme Court Rule 17 provides that “‘re-

view on writ of certiorari is not a matter of right, but

~of judicial discretion, and will be granted only when there

are special and important reasons therefor.”’ The Petition

for Certiorari ignores this Rule. Petitioner makes no claim

that the courts below decided ‘‘an important question of

~

federal law which has not been, but should be, settled

by this Court” or made a decision in conflict with appli-

cable decisions of this Court or any other federal court

of appeals or state court of last resort. United States

Supreme Court Rule 17.1(a) and (c).

Rather than trying to show “special and important rea-

sons” such as those listed in Supreme Court Rule 17, peti-

tioner simply reargues the substantive merits of his case

below. Petitioner merely claims he has a federal interest

at stake. This claim, without more, is insufficient to war-

rant review by this Court. For this reason alone, this peti-

tion for writ of certiorari should be denied.

THE DISTRICT COURT CORRECTLY APPLIED WELL

SETTLED PRINCIPLES OF FEDERALISM AND COMITY.

Far from “‘depart{ing] from the accepted and usual course

of judicial proceedings,’ Supreme Court Rule 17.1(a), the

District Court applied “well established constitutional prin-

ciples of states rights, comity and federalism [which] re-

quire federal courts to abstain from matters involving im-

portant state interests, until state courts have had the

opportunity to rule.”’ Cronson v. Clark, No. 86-3180, slip

op. at 2 (C.D. Ill. 1986). (App. to petition at 10) The Dis-

trict Court recognized that important state interests were

involved in delineating the duties of the Illinois Auditor

General pursuant to the Illinois Constitution and Illinois

statutes.

The principles followed by the District court were set

out in Younger v. Harris, 401 U.S. 37 (1971), which applied

the rule that a federal court will not interfere with the

orderly functioning of the state’s judicial process and that

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state courts are fully competent to adjudicate federal con-

stitutional rights. “{I]t has been perfectly natural for our

cases to repeat time and time again that the normal thing

to do when federal courts are asked to enjoin pending

proceedings in state courts is not to issue such injunc-

tions.” Younger, 401 U.S. at 465.

The District Court accordingly recognized that “‘proper

respect for state brethren permits the court to assume

that they will vigorously safeguard federal constitutional

rights.” Cronson v. Clark, 645 F. Supp. 793, 795 (C.D.

Ill. 1986). (App. to petition at 14) See, Middlesex Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982)

(holding that regulation of the state bar and state judicial

system is a substantial state interest requiring federal

court abstention). Moreover, the Supremacy Clause re-

quires that “the Judges in every State shall be bound”

by the United States Constitution. U.S. Const. Art. VI,

cl. 2. This fundamental principle of our federal system of

government underlies the reluctance of federal courts to

enjoin ongoing state court actions. Huffman v. Pursue,

Ltd., 420 U.S. 592, 605 (1975).

The District Court correctly followed these precedents

by refusing to enjoin the state court proceedings. Peti-

tioner’s writ of certiorari should be denied.

ill.

THE COURT OF APPEALS CORRECTLY HELD THAT

THE DUE PROCESS CLAUSE CANNOT REMEDY HYPO-

THETICAL INJURIES.

Petitioner failed to allege a concrete injury legally cog-

nizable under 42 U.S.C. § 1983 (1987) (“Section 1983”’).

Thus, he had no standing to bring this action in a Federal

Court. The Seventh Circuit recognized that ‘‘there is no

onde

way [Cronson] can show a deprivation of his life, liberty

or property, which is a precondition to complaining of

a denial of due process of law under the Fifth or Four-

teenth Amendments.”’ Cronson, 810 F.2d 662, 665 (7th

Cir. 1987). (App. to petition at 4) Petitioner lacks any

“personal injury fairly traceable to the defendant’s al-

legedly unlawful conduct likely to be redressed by the re-

quested relief,” Allen v. Wright, 468 U.S. 737, 751 (1984),

the required test under well-established standing prin-

ciples.

This Court has held that to have standing to maintain

an action under Section 1983, a plaintiff must show that

state officials deprived him of a property interest or a

right secured by the Constitution and laws of the United

States. Baker v. McCollan, 443 U.S. 187, 140 (1979);

Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972).

Moreover, “this Court has repeatedly held that an asserted

right to have the Government act in accordance with law

is not sufficient, standing alone, to confer jurisdiction on

a federal court.” Allen v. Wright, 468 at 754. Thus, to

invoke the due process clause, petitioner must allege in-

jury to a liberty or property interest. No such interest is

implicated in the question of how petitioner fulfills certain

official duties which was the subject of the action in the

Illinois Supreme Court that he sought to enjoin. Therefore

petitioner lacks standing under Section 1983. In the words

of the Seventh Circuit:

[T]he terms “liberty” and “property” do not encom-

pass the interest of a public official in being allowed

to act to the full extent of what he conceives to be

his powers under state law. The federal courts do

not sit to resolve intramural disputes among state

officials over the bounds of their authority under

state law. Whether Mr. Cronson is told to conduct

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a full audit, a partial audit, or no audit, there is no

way he can show a deprivation of his life, liberty,

or property, which is a precondition to complaining

of a denial of due process of law under the Fifth or

Fourteenth Amendments.

Cronson v. Clark, 810 F.2d 665. (App. to petition at 4)

The Seventh Circuit acted in conformance with the ap-

plicable decisions of this Court and the accepted and usual

course of judicial proceedings in concluding that “the due

process clause does not confer on Mr. Cronson a right

to conduct a more extensive audit,’”’ Cronson, 810 F.2d

at 665, App. to petition at 4, and that his suit therefore

should be dismissed for want of federal jurisdiction.

Petitioner’s attempt in his petition for writ of certiorari

to characterize the underlying action as being a threat

to his job is far too hypothetical to cure his standing

defect. (Petition at 27) A closer examination of the com-

plaint reveals no allegation that his job is actually in

danger. The complaint merely alleges that Cronson “could

be wrongfully subjected to the loss of his public office.”

(Complaint ¢24) (emphasis added) Petitioner correctly

points out that “under Section 3 of Article VIII of the

Illinois Constitution, he may be removed from office in

mid-term ‘for cause’ by a vote of the General Assembly.”

(Petition at 27) However, petitioner has made no allega-

tions that the Illinois General Assembly has begun any

such proceedings. Such an injury is both hypothetical and

too far removed from respondent’s action to confer stand-

ing. See Allen v. Wright, 468 U.S. 787 (1984).

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CONCLUSION

The issue before this Court on this petition for writ of

certiorari is not, as petitioner might have this Court be-

lieve, whether the Illinois Supreme Court denied Cron-

son’s due process rights when it denied his motion to

dismiss for want of jurisdiction, but rather whether based

on principles of federalism, comity and standing, the fed-

eral courts properly refused to enjoin the Illinois Supreme

Court from hearing the case. It is well established that

the proper path for review of state court decisions is

’ through a state’s appellate courts to the United States

Supreme Court, Huffman v. Pursue, Ltd., 420 U.S. 592,

605 (1975), not through collateral lawsuits in the federal

courts seeking to enjoin the state court proceedings. —

WHEREFORE, respondent respectfully requests that this

Court deny the petition for a writ of certiorari to the

United States Court of Appeals for the Seventh Circuit.

Respectfully submitted,

Terry F. Moritz *

GOLDBERG, KOHN, BELL, BLACK,

ROSENBLOOM & MORITZ, LTD.

55 East Monroe Street

Chicago, Illinois 60603

(312) 332-2177

Attorneys for Respondent

Honorable Seymour Simon

ALAN P. SoLow

Minpy Buiock GorpDoN

JOANNE M. HarMon

Of Counsel * Counsel of Record