# Opposition Brief — Cronson v. Clark

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0278%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 871

## Text

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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

i

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 .....
be

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
wee, Get UL. SER CUBED wwe ccc cccncss

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0278%3A2. Public record. Not legal advice.