Opposition Brief — White v. Elrod

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No. 87-176 | CE 40 per

‘ss . JOSEPH. SPANIOL, JR,

CLERK

In THE

Supreme Court of the Gnited States

OctosEerR TERM, 1987

THOMAS WHITE, et al.,

Petitioners,

RICHARD ELROD and PHILLIP HARDIMAN,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

RICHARD M. DALEY

State’s Attorney of Cook County

500 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-5475

Attorney for Respondents

Iris E. SHOLDER *

Diane Kristen

Assistant State’s Attorneys

Of Counsel * Counsel of Record

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

QUESTIONS PRESENTED

I. Whether the lay Petitioner may represent the inter-

ests of persons other than himself in a pro se petition for

writ of certiorari.

II. Whether Petitioner has failed to allege appropriate

grounds to invoke the jurisdiction of the Court pursuant

to 28 U.S.C. §1254(1), where the United States Court of

Appeals determination that a prior and final determina-

tion by the Illinois State Courts barred Petitioner’s civil

rights suit involving identical parties and causes of action

was consistent with 28 U.S.C. §1738.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................

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

SUMMARY OF ARGUMENT ................

ARGUMENT:

ONLY THE PETITION OF PHILIP MORRIS IS

PROPERLY BEFORE THE COURT .......

Il.

PETITIONER HAS FAILED TO ALLEGE AP-

PROPRIATE GROUNDS TO INVOKE THE

JURISDICTION OF THE COURT PURSUANT

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TABLE OF AUTHORITIES

CASES:

Allen v. McCurry, 449 U.S. 90 (1980) .........

Fay v. Nowa, 372 U.S. 391 (1963) .............

Kremer v. Chemical Construction Corporation, 456

eS 8 rer ems Tees Pre eer

Magnum Import Company v. Coty, 262 U.S. 159

ERIE ER een ee cen

Move Organization v. U.S. Department of Justice,

555 F.Supp. 684 (E.D. Penn. 1983) ........

NLRB v. Pittsburgh S.S. Company, 340 U.S. 498

eS SI Mer ae eee

Osborn v. United States Bank, 22 U.S. 738 (1824) .

Oxendine v. Williams, 509 F.2d 1405 (4th Cir.

STE i i ny eeieay ae = nt Carte ge

Phillips v. Tobin, 548 F.2d 408 (2nd Cir. 1976) ...

Pilla v. American Bar Association, 542 F.2d 56

he ae Cy ead sk wie ak daeys anne

Spiller v. Continental Tube Company, 95 IIl.2d 423

ecco aes shape Ne RREAe Oe Ke es

United States v. Johnson, 268 U.S. 220 (1925) ...

United States v. Peterson, 550 F.2d 379 (7th Cir.

Pe es og eae ene eaeesiwenss

Wayte v. United States, __ U.S. ___., 105 S.Ct.

a ke eee ns

STATUTES AND RULES:

28 U.S.C. §1254(1) ....

28 U.S.C. §1654 ......

28 U.S.C. §1738 ......

42 U.S.C. §1983 ......

Supreme Court Rule 5

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Supreme Court Rule 20.1 ....................

In THE

Supreme Court of the Gnited States

Octosper TERM, 1987

THOMAS WHITE, et al.,

Petitioners,

Vv.

RICHARD ELROD and PHILLIP HARDIMAN,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

This case involves the determination by the United

States Court of Appeals for the Seventh Circuit that

claims filed in the federal court alleging selective prose-

cution, race discrimination and free speech infringement,

which were previously adjudicated in the state courts of

Illinois (Pet. App. C-11, D-33), are barred by the princi-

ple of res judicata. (Pet. App. A-5) In 1980, 85% of the

guards of the Cook County Department of Corrections in

Chicago, Illinois, participated in an illegal strike. (Pet.

ain

App. A-i) Due to that strike, 5000 inmates were inade-

quately guarded for 10 days. (Pet. App. A-2)

Because it was infeasible to discipline all 900 guards in-

volved, Respondents suspended and filed charges with the

Cook County Police and Corrections Merit Review Board

against only 34 guards who were believed to have organ-

ized or exacerbated the illegal strike. (Pet. App. A-2 - 3)

Charges were filed against Philip Morris and each of the

other persons identified in the petition as ‘Parties In-

volved”. (Pet. A-ii) Certain guards who were disciplined

appealed the decision of the Merit Board to the Circuit

Court of Appeals. (Pet. App. B-9cc) Meanwhile, the same

guards also filed a civil rights suit under 42 U.S.C. §1983,

involving the same facts at issue in the state court action.

(Pet. App. B-9ee) Ultimately, the Illinois Appellate Court

found that the disciplinary actions were just and lawful

(Pet. App. C-11), and both the District Court and the

United States Court of Appeals determined that the civil

rights suit was barred by the principle of res judicata.

Moreover, the District Court found no evidence of race

discrimination. (Pet. App. B-90) The Court of Appeals up-

held that finding as to two guards who had been rein-

stated with full back pay and whose claims therefore were

not barred by res judicata. (Pet. App. A-8d) The petition

seeks to invoke the discriminatory jurisdiction of the Court

to review these determinations.

For the sake of brevity, Respondents adopt the more

complete statement of the case and the presentation of

the facts set forth in the opinion of the United States

Court of Appeals for the Seventh Circuit. (Pet. App.

A-1 - 4)

SUMMARY OF ARGUMENT

Philip Morris’ pro se Petition for Writ of Certiorari must

be deemed to advance only the interests of Philip Morris

and not the interests of 21 other purported petitioners

who have no right to representation by lay counsel. Philip

Morris’ attempt to represent the claims of persons other

than himself constitutes unauthorized practice of law.

The petition of Philip Morris raises no substantial fed-

eral question. The decision of the United States Court

of Appeals for the Seventh Circuit conforms with long-

standing precedent regarding the full faith and credit ac-

corded by federal courts to final determinations by the

courts of the state. The purely factual issues raised in

the petition are improper subjects for review under writ

of certiorari.

ARGUMENT

ONLY THE PETITION OF PHILIP MORRIS IS PROP-

ERLY BEFORE THE COURT.

Petitioner Philip Morris, on behalf of himself and al-

legedly for 21 other lay persons named in the petition,

seeks review of the decision of the United States Court

of Appeals for the Seventh Circuit to accord full faith and

credit to the final judgment of the Courts of the State

of Illinois in a case involving parties and issues identical

to those presented in federal court. For the reasons set

forth below, the petition represents only the interests of

Philip Morris and fails to present a substantial federal

question warranting a writ of certiorari.

In all courts of the United States, parties may plead

and conduct their own cases personally. 28 U.S.C. §1654.

The right to self-representation however, does not include

the-right to be represented by lay counsel. Osborn v.

United States Bank, 22 U.S. 738, 828 (1824) (the interests

of a corporation must be represented by counsel in order

to ensure the fair administration of justice); Pilla v. Amer-

wan Bar Association, 542 F.2d 56 (8th Cir. 1976) (litigants

in civil and criminal cases do not have a right to be rep-

resented by lay counsel); Phillips v. Tobin, 548 F.2d 408

(2nd Cir. 1976) (stockholders must proceed with counsel

in a derivative action against the corporation); Oxendine

v. Williams, 509 F.2d 1405 (4th Cir. 1975) (a prisoner can-

not proceed pro se on behalf of a class of inmates because

the competence of a layman is too limited to risk the

rights of the class); Move Organization v. United States

Department of Justice, 555 F.Supp. 684 (E.D. Penn. 1983)

(in order to protect the fair administration of justice, an

organization which filed a claim against federal and state

correctional authorities could not proceed pro se.)

Petitioner Philip Morris has filed a pro se petition for

writ of certiorari which purports to represent the interests

of himself and 21 other lay individuals each of whom was

the subject of a disciplinary prosecution based upon al-

leged participation in an illegal strike among correctional

officers at the Cook County Department of Corrections

in Illinois. Admission to practice before the Supreme

Court requires, in part, proof of admission to the highest

court of a state for at least three years. Supreme Court

Rule 5. Philip Morris is not authorized to practice law

in any jurisdiction. Unauthorized practice in a federal

court in violation of the rules of the court, constitutes mis-

behavior tending to obstruct the administration of justice

and is punishable by contempt. United States v. Peter-

son, 550 F.2d 379, 384 (7th Cir. 1979).

—§—

The individuals named in the petition, aside from Philip

Morris, have no right to lay representation and therefore

their ciaims should not be considered.’ Only the petition

on behalf of Philip Morris is properly before the Court.

Il.

PETITIONER HAS FAILED TO ALLEGE APPROPRI-

ATE GROUNDS TO INVOKE THE JURISDICTION OF

THE COURT PURSUANT TO 28 U.S.C. §1254(1).

The petition raises no substantial federal question. As

noted in Section I above, only Philip Morris has filed a

proper timely pro se petition for writ of certiorari. How-

ever, even if the Court were to consider the claims not

only of Philip Morris but also of the other lay persons

purportedly advanced in the petition, each has failed to

allege any basis sufficient to invoke the discretionary juris-

diction of the Court.

A writ of certiorari is not a matter of right. Fay v.

Noia, 372 U.S. 391, 436 (1963). Discretionary jurisdiction

to review cases from the circuit court was conferred upon

the Supreme Court in order to secure uniformity of law

between the circuits and to review important questions

affecting the public interest. Magnum Import Company

v. Coty, 262 U.S. 159 (1923). Certiorari is inappropriate

in cases involving only the interests of the parties. NLRB

v. Pittsburgh S.S. Company, 340 U.S. 498, 502 (1951).

Petitioner does not assert that the decision of the Seventh

Circuit is in conflict with those of the other circuits or

1 Each individual named in the petition, excluding Philip Morris

has failed to petition for writ of certiorari within 60 days of the

entry of the judgment of the United States Court of Appeals and

therefore each is time barred from petitioning for certiorari re-

view. (Supreme Court Rule 20.1)

ation

that the decision affects principles important to the public

interest. Indeed, neither basis for the exercise of the

Court’s discretionary jurisdiction exists in the instant

matter.

The Seventh Circuit followed well-established precedent

in determining that the Illinois doctrine of res judicata

applied to petitioner’s federal suit and that under that

doctrine petitioner’s claim pursuant to 42 U.S.C. §1983

was barred. Federal courts must give full faith and credit

to the decisions of the states’ courts. 28 U.S.C. $1738.

Actions pursuant to 42 U.S.C. §1983 are subject to the

preclusion rules which may bar federal courts from fresh-

ly deciding constitutional issues previously litigated itggue

state courts. Allen v. McCurry, 449 U.S. 90, 98 (1980).

Moreover, federal courts must give the same preclusive

effect to a state court judgment that the judgment would

be given in the courts of the state from which the judg-

ment emerged. Kremer v. Chemical Construction Corpo-

ration, 456 U.S. 461, rehearing denied, 458 U.S. 1133

(1982).

Under Illinois law, the doctrine of res judicata provides

that a final judgment on the merits rendered by a court

of competent jurisdiction is conclusive as to the rights of

the parties and, as to them, constitutes an absolute bar

to a subsequent action involving the same claim, demand

or cause of action. Spiller v. Continental Tube Company,

95 Il.2d 423 (1983). As noted in the opinions of the Dis-

trict Court for the Northern District of Illinois and the

United States Court of Appeals for the Seventh Circuit

(Pet. App. B-9ee and Pet. App. A-86), Petitioner’s state

and federal suits involved the identical parties and causes

of action, arising out of the same core of operative facts.

Consequently, the Illinois doctrine of res judicata barred

Petitioner’s federal suit. Id.

The Seventh Circuit also determined that the Illinois

doctrine of res judicata did not bar the civil rights claims

of two officers who had prevailed before the Merit Board

and were reinstated with full back pay because their vic-

tory at the Merit Board level precluded review and final

adjudication of their claims in the state courts. (Pet. App.

A-6) The federal claims of those two officers, however,

were found to be without merit. (Pet. App. A-4) As noted

in Section I above, only the petition of Philip Morris is

properly before the Court. However, even if the Court

were to consider a petition for writ of certiorari on be-

half of the two reinstated officers, the petition would fail.

The Seventh Circuit determined that the two officers

who maintained federal claims which were not precluded,

were not the subjects of unlawful selective prosecution.

As the Court of Appeals noted, the prosecutor has the

right to decide which charges to prosecute so long as the

decision is not based upon unjustifiable standards. Wayte

v. United States, ___ U.S. ___, 105 S.Ct. 1524, 1531

(1985). The Court of Appeals reviewed the record and con-

cluded that the standards for selective prosecution were

justifiable. (Pet. App. A-8f - 8h) That determination is not

the proper subject of discretionary review. Certiorari is

never granted to review evidence or consider issues of

fact. United States v. Johnson, 268 U.S. 220 (1925). The

additional charges of racial discrimination regarding the

nature and extent of the discipline imposed raised in the

petition of Philip Morris are, of course, moot as to the

two officers who were reinstated with full back pay.

The petition advances only the claims of Philip Morris

and fails to present any substantial federal question for

review. The petition seeks also to disturb purely factual

determinations and therefore fails to allege grounds suf-

ficient to invoke the discretionary jurisdiction of the

Court.

CONCLUSION

WHEREFORE, Respondents respectfully request that the

Court deny the Petition for Writ of Certiorari.

Respectfully submitted,