Petition for Writ of Certiorari — Aronson v. Illinois

Supreme Court, U.S.

we ee

AUG 23 1987

JOSEPH F. SPANIOL, JR.

CLERK

87 490

No.

In THE

Supreme Court of the Gnited States

OctoBeR TERM, 1987

LILLIAN ARONSON,

Petitioner,

VS.

STATE OF ILLINOIS, JUDGES OF THE ILLINOIS

APPELLATE COURT (First Division),

MAYER GOLDBERG, THOMAS A. McGLOON

and CALVIN C. CAMPBELL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LILLIAN ARONSON

9348 Drake Avenue

Evanston, Illinois 60203

(312) 675-7351

Petitioner Pro Se

i

QUESTIONS PRESENTED

1. Whether claim preclusive effect may be given to a

prior state court judgment, thereby barring a subsequent

federal action, where entry of the judgment without con-

sideration of the alleged violation of the Due Process

Clause itself constitutes the basis of the federal action.

2. Whether the United States Court of Appeals for the

Seventh Circuit erred by giving claim preclusive effect

to a prior state court judgment where petitioner was not

afforded a full or fair opportunity to litigate the central

factual issue in state court.

3. Whether there is a split between the United States

Courts of Appeals for the Fifth, Seventh and Tenth Cir-

cuits in their respective applications of claim preclusion

and 28 U.S.C. § 1738 to subsequent actions brought under

42 U.S.C. § 1983 which warrants resolution by this Court.

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIC“ .....ccdiccsceses

CPRIURIIN TREAD nc ccc cccccccccssavwcnens

PREMTEIEE ao back das enesnedesanees eases

CONSTITUTIONAL PROVISION

Oe 4: errs ea: Te rere ye ewer

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

The Prior Illinois State Court Proceedings ...

The FeGerel LOU ok osc cnuectenisncss

REASONS FOR GRANTING THE WRIT:

1.

This Writ Should Be Granted Because It

Presents An Important Question Of Fed-

eral Law Which Should Be Settled By

ry Ee. Mweerrerrer er tr, eo eee

The Writ Should Be Granted To Settle A

Conflict Between The Federal Circuit

Courts GE BOI 6sicsseeseaisaskcs

The Writ Should Be Granted Because The

Questions Are Of Great Public Interest ..

CUNCLUBBIN ao ccccutecavaseansessenceeens

APPENDIX

Opinion of the United States Court of Appeals for

the Seventh Circuit, March 31, 1987 .......

Opinion of the Appellate Court of Illinois, First

District, February Z, WGL-.......ccssdinss

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11

15

16

17

18

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6a

REE PITTI ES, PHO

ill

TABLE OF AUTHORITIES

Cases

Boileau v. Bethleham Steel Corp., 730 F.2d 929

(3rd Cir.), cert. denied, 469 U.S. 871 (1984)...

Eisele v. Ayers, 63 Ill.App.3d 1089 ...........

Jones v. City of Alton, 757 F.2d 878 (7th Cir.

SAREE SS SEES ee ee gS ee ea

McWilliams v. McWilliams, 804 F.2d 1400 (5th

ee ei oi easy dade aeeee

Mitchum v. Foster, 407 U.S. 225 (1972) .......

Morgan v. City of Rawlins, 792 F.2d 975 (10th Cir.

ES are CeUN Ges icbs ws uenduccseesss

GUNES hoc aed Gn sda een ts 40800 dee-

Scroggins v. Kansas Dept. of Human Resources,

Div. of CETA, 802 F.2d 1289 (10th Cir. 1986) .

Thournir v. Meyer, 803 F.2d 1093 (10th Cir. 1986) .

Constitutional and Statutory Provisions

U.S. Const., Fourteenth Amendment ..........

I ED ccc wcWbanwonnscancecs

PAGE

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ee

In THE

Supreme Court of the United States

Octoser TERM, 1987

LILLIAN ARONSON,

Petitioner,

Vs.

STATE OF ILLINOIS, JUDGES OF THE ILLINOIS

APPELLATE COURT (First Division),

MAYER GOLDBERG, THOMAS A. McGLOON

and CALVIN C. CAMPBELL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Petitioner, Lillian Aronson, respectfully requests

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit entered in this proceeding on March 31,

1987.

OPINIONS BELOW

The order of the United States Court of Appeals for

the Seventh Circuit, dated: March 31, 1987, appears at

pp. la-5a of the Appendix (“App.”’).

=

The Illinois Appellate Court, First Division, Opinion

which is published and was entered on February 2, 1981,

is reprinted at App. 6a-l6a.

JURISDICTION

The judgment of the Court of Appeals was entered on

March 31, 1987. An extension of time to petition for cer-

tiorari until August 28, 1987 was timely requested and

granted by the United States Supreme Court by letter

dated June 26, 1987, No. A-947. The jurisdiction of this

Court is predicated on 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fourteenth Amendment

to the United States Constitution.

STATEMENT OF THE CASE

Petitioner brought suit against respondents, asking pro-

tection of federal court for constitutional right to due

process of law that was violated by the State through re-

spondents depriving her of any opportunity to be heard

on the controlling facts of her state claim for breach of

contract even though stigma to her and liberty interests

are at stake.

- =

The Prior Illinois State Court Proceedings

Petitioner sued North Park College in the Circuit Court

of Cook County, Illinois inter alia for breach of contract

based upon her dismissal as a student because of an un-

founded adverse report on her mental health by a counsel-

ing center sponsored jointly by the school and Swedish

Covenant Hospital. At trial the school defended inter alia

on the ground that the school authorities had acted in

good faith on the basis of the report from an indepen-

dent counseling center. Plaintiff responded that good faith

was not a defense to a breach of contract under Illinois

law and that in point of fact the counseling center was

not independent and the school authorities had not acted

in good faith. Both petitioner and the school presented

evidence on the issues of good faith and independence.

Judge, now Illinois Appellate Justice, Charles E. Freeman,

entered judgment in favor of plaintiff on her breach of

contract clause, without ruling specifically on either the

legal question of whether the school’s bona fide reliance

on the report of an independent counseling center, if proven,

would constitute a valid defense or the factual questions

of whether the counseling center was independent or the

school authorities had acted in good faith.

On appeal, the respondents reversed the judgment of

the trial court holding that good faith reliance by the

school authorities on an independent counseling agency

was a valid defense to the breach of contract claim and

that, since the counseling center was jointly sponsored and

funded by others and served the community as well as

other schools, it was not the apparent agent of the defen-

dant school. Respondents did not address other evidence

which had been presented at trial to establish lack of inde-

pendence between the counseling center and the school.

In particular, respondents did not address evidence that

ollien

(i) the counseling center had been started by North Park

College as a department of the school, (ii) it was iden-

tified as a department of the school in the student catalog

(R. 118, 155), (iii) it was housed in a school building, (iv)

its personnel were paid by school checks (R. 85), (v) it

used the school switchboard, (vi) it used the school’s letter-

head for correspondence generally and for the report on

which petitioner was dismissed in particular, and, (vii) it

did not obtain any authorization from plaintiff to release

information from its medical records to the school. More

importantly, respondents did not even purport to consider

the question of whether petitioner could produce even

more compelling evidence of the counseling center’s lack

of independence, or the school’s lack of good faith in dis-

missing and refusing to readmit her, notwithstanding favor-

able reports from other unquestionably independent author-

ities who clearly identified the unfounded nature of the

counseling center’s adverse report. The respondents not

only reversed the judgment of the trial court, but also

refused to remand the case and thereby denied petitioner

any opportunity to introduce additional evidence or ob-

tain specific findings on the factual issues of the counseling

center’s lack of independence and the school authorities

lack of good faith.

Subsequent petitions for rehearing to respondents in the

Court of Appeals and to the Supreme Court of Illinois

were denied. The preparation of such petitions was hamp-

ered by the loss of the record in the Illinois Appellate

Court. By letter dated December 21, 1986, Mr. Steven

Ravid, Administrative Attorney of the Court informed

plaintiff that the record had been inadvertently destroyed.*

* The trial transcript has been restored and arrangements are

underway to file the restored record with the court.

a

This action was brought in the United States District

Court for the Northern District of Illinois. After dismissal

of the initial complaint, leave to amend and make a late

payment of the filing fee was denied on the ground that

the court lacked jurisdiction to review the final judgment

of a state court proceeding even if unconstitutional (Dis-

trict Court of Columbia Court of Appeals v. Feldman,

460 U.S. at 482), that no federal claim had been stated

(plaintiff seems to say “reasons” were not given by State

court which they were) and that plaintiff did not claim

the “proceedings were a sham or that the justices invidi-

ously used their offices to deprive petitioner of her rights”

but that she only claimed that the Appellate Court com-

mitted errors. Adkins v. Underwood, 520 F.2d 890 (7th

Circuit).

The Court of Appeals affirmed holding that Federal

Court lacks jurisdiction to review judgments of the Appel-

late Court of Illinois (Feldman), that her underlying claims

failed to state cognizable federal claims, that absent allega-

tions that the state court “proceedings were a sham and

that the justices invidiously used their office to deprive

plaintiff of her rights,” federal court is without jurisdic-

tion; (under § 28 U.S.C. 1257—review . . . may only be

had in Supreme Court), and that

“While appellant has certainly framed her amended

complaint in constitutional terms, it is clear, upon

closer examination, that she is not genuinely con-

cerned with the vindication of recognized constitu-

tional rights but rather with protecting her damage

award...”

Plaintiff-petitioner won her lawsuit in a bench trial in

January of 1980 in the case entitled Aronson v. North

Park College, 94 Ill.App.3d 211. On February 2, 1981, the

respondents reversed depriving petitioner of her due

=

process rights under the Fourteenth Amendment by en-

tering a judgment reversing one possible legal basis for

the state trial court judgment in her favor, and petitioner

attempted to receive a remand as discussed below.

The only issue tried (in a short bench trial) was breach

of contract; the invasion of privacy count was relinquished

on statute of limitations; the fundamental Constitutional

right to due process of law count was not pressed.*

In the Fall of 1966, petitioner became a full time stu-

dent at North Park College (‘‘college’’) for her last year

and a half having attended the college part time since

March, 1966. After enrollment and the start of classes

petitioner and other new students were notified that all

incoming students had to take a psychological test, known

as MMPI (Minnesota Muitiphasic Personality Inventory).

The test was conceded by the college as given without

notice before enrollment and start of classes. (R. 136) It

was not standardized and unreliable. The testing was in

connection with a program carried on by the college and

counseling center in which 5-10% of the tested students

were required to report to the Center on the basis of

their test results. (R. 50-51) In November of 1966, peti-

tioner took the test and thereafter received notice to

report to the Center and reported there. She took no

other test and none was submitted into evidence, but she

passed a “checklist.” (R. 55-56) When petitioner was asked

by the Center to return yet a third time and report on

further personal matters, at additional cost to herself, she

refused. However, on threat of dismissal, she returned

* Unable to afford the expense of a protracted trial and (so far

as petitioner knows) the possible exemption of North Park Col-

lege as a private institution from accountability by a due process

hearing.

_

briefly to see the psychologist, (indicating that she could

not return). Thereafter she was notified by letter of her

dismissal for “insufficient mental health’ and—as she

learned during discovery—“paranoid.’”’ The Director of

Testing at Northwestern Memorial Hospital and co-signer

of the Amici Curiae brief on her behalf,* testified that

the MMPI was unreliable, that petitioner’s MMPI results

were within normal. (R. 332)

Testimony of Richard Cox (“‘Cox’’), clinical psychologist

of the center revealed he did not remember her, he left

no other clinical report than as shown by respondents’

opinion (and as in the Amici Curiae brief). Psychiatrist

Esau of the counseling center never saw petitioner at all

prior to trial (R. 113). The Center was required by the

state for funds received to put labels on all persons seen

whether or not the diagnostic process had been completed.

Confidential information flowed between the college and

center (“‘students were presumed to be utilizing a college

service when they were at that Center,” psychologist Cox

reported in his deposition). Petitioner was not given a

hearing by the college. (R. 141) No inquiry or investiga-

tion was conducted by the Dean. He sought no informa-

tion from petitioner’s references or sources, or from her

doctor (whom she enlisted). He dismissed petitioner on

receipt of the opinion of psychologist Cox.

* Authored by Prof. Karl U. Smith, University of Wisconsin; a

witness before the U.S. Senate Subcommittee Hearings: “‘Psycho-

logical Tests and Constitutional Rights: Hearings Before the Sub-

committee on Constitutional Rights of the Committee on the Judi-

ciary, United States Senate, June 1965 and Dr. Jack Arbit, Pro-

fessor in the Department of Psychiatry and Neurology and Direc-

tor of Psychological Testing, Northwestern Memorial Hospital,

Chicago, IL.

es

The college produced no documentation, witnesses or

testimony as to any unsatisfactory behavior by petitioner

or to substantiate their description of petitioner as “‘par-

anoid” or as “emotionally upset.” The dismissal was re-

ported by the Dean as due to health reasons. Petitioner’s

appeal brief before respondents and to the Illinois Su-

preme Court reported the many instances of bad faith by

the college and center (some of which are reported below).

The counseling center was described by psychologist

Cox as “the official college counseling center that was

started by North Park College and subsidized by them.”’

(R. 185) The college catalog reported that the college and

its sister institution, Swedish Covenant Hospital, are

under the Evangelical Covenant Church and the official

name of the Center at the time was the “Covenant Coun-

seling Center.” The college and center personnel, Direc-

tor Esau and Cox claimed that a partnership agreement

existed between college and center. However, neither col-

lege nor Center personnel produced the alleged agreement

or any evidence in support of independence between them.

They were not certain as to the years in which the part-

nership agreement was allegedly in effect. (R. 60, 118, 141,

183) The trial court never ruled that the Center was inde-

pendent. Its last words on the subject are: ‘““‘What the

relationship is between the college and the center has still

not been determined at this point, so the objection is over-

ruled.” (R. 324) The verdict was found for petitioner—

that the college had breached iis contract with her since

there was no evidence in support of its labelling of her

as “paranoid” and expulsion thereupon.

In support of their finding of independence and that the

college had acted in good faith, the respondents said: (1)

‘“(TJhe . . . center was also funded by Swedish Covenant

Hospital. (2) The Illinois Department of Mental Health

ee

also participated in funding the center and (3) required

the center to provide services to the surrounding com-

munity. (4) The counseling center provided its indepen-

dent service not only to NP C(ollege) but also to Olivet

Nazareth College and Wheaton College. In addition. . .

(5) No member of the counseling center staff was in any

manner connected with NPC.”

Except for reason #1 above, which is reported in the

catalog and was undisputed, no proof was shown for any

of the above-stated reasons either as to fact or the time

in question. Reason #5 is false according to the testimony

of an employee of the center student-psychologist Hunt,

the deposition testimony of the psychologist, and the Di-

rector of the Center was listed in the college catalog as

head of a department of the college. The respondents

merely accepted the denials of agency by the college,

center director and psychologist and their citations of their

denials, and remained silent on the evidence relied on by

the trial court (as presented in appeal briefs). (R. 158, 217)

All information as to the facts in respondents’ opinion

is from the brief of the defendant college including that

which is undocumented and without proof in the record.

The respondents are silent on all of the key evidence,

testimony and crux of this lawsuit as documented in the

appeal briefs, e.g., the psychological testing-interviewing-

research program in conjunction with the non-standardized

test carried on between college and center; that the col-

lege conceded that the testing was done without notice

(respondents report “Plaintiff testified she received no in-

formation about psychological testing before her fall en-

rollment) (R. 136); that student psychologist Mr. Hunt tes-

tified that he:

“was just a student and so [Petitioner] and a number

of other students came to me for a ten-minute inter-

~~ =

view in which if I felt there were issues that arose

in the interview, I would recommend to other members

of the staff she go on for further experimentation

. . . | was not a part of making the diagnosis.” (R.

50-51);

that the college through its counseling center sought out

students whose names appeared on lists received from the

counseling center to the college who were to report to

the Center for failing the psychological test; that the medi-

cal mal-diagnosis of petitioner by the psychologist was the

result of the routine psychological testing of incoming stu-

dents. (R. 171-172) Where the college gives contradictory

undocumented information, respondents pick one to report:

students were to go to the center for only an “interpreta-

tion” of their test results. Respondents report Mr. Hunt’s

presumptive notation as fact, misquoting him to describe

petitioner as “below average intelligence” again without

documentation and in disregard of Exhibit 41 (petitioner’s

scholastic record, of B average).

Several false, undocumented statements are also re-

ported by respondents without offer of proof or proof in

the record, e.g., “[petitioner] was given another personal-

ity test;” “. . . the test . . . was graded at the Univer-

sity of Minnesota;” ““No member of the counseling center

staff was in any manner connected with NPC.” Undocu-

mented statements, hearsay (opinion shows) and inference

are reported as fact (that the dismissal was for disciplinary

reasons; that petitioner was in therapy during the post-

expulsion period) all without proof in the record or offer

of proof for any disagreement with the trial court.

The college’s brief gives descriptions of a hypothetical

paranoid person and definition of paranoid. No unsatisfac-

tory act or behavior on petitioner’s part is reported by

respondents. Respondents substituted the opinion of psy-

=

chelogist Cox for that of the Professor-Doctor Jack Arbit,

Department of Psychiatry and Neurology and Director of

Psychological Testing at Northwestern Memorial Hospital

and two other psychological-psychiatric expert witnesses

in finding that the psychological test administered to all

incoming students was reliable, and as to petitioner’s test

results.

After respondents’ decision was entered on February

2, 1980, and with her attorney out of the country several

months, petitioner submitted her timely pro se petition

for remand or hearing on March 10, 1980 (after her request

for extension of time was granted) which was denied.

Thereafter, on June 5, 1981, petitioner timely filed her

petition to the Illinois Supreme Court for leave to appeal

through her attorney wherewith a request was made on

her behalf to file the above-mentioned Amici Curiae brief,

both of which were denied by the court.

On July 13, 1983, (for her legal and financial disability

status at the time the respondents’ decision was entered)

petitioner through her attorney filed again a petition for

rehearing before respondents which was again denied.

And a follow-up petition again to the Illinois Supreme

Court (albeit late) on January 20, 1985, As A Matter of

Constitutional Right (Rule 317(a)) and the Illinois Supreme

Court’s supervisory power over the Appellate Court (Rule

315), with her Motion explaining the late petition which

was again denied on March 21, 1985.

The Federal Lawsuit

Four years, four and one-half months after the respon-

dents reversed petitioner’s case, on June 20, 1985, peti-

tioner brought suit, pro se, in Federal District Court nam-

ing the State of Illinois, Judges of the Illinois Appellate

=

Court, First Division, Mayer Goldberg, Thomas A. McGloon,

Calvin C. Campbell, for negligence, misrepresentation,

fraud and sham proceedings in the appellate review and

reversal of her case on. Petitioner filed her cursory (one-

page) complaint on that date by converting her Motion-

for-extension of time at the court into a complaint (due

to inability to learn the definite limitations period) without

paying the filing fee.

Her complaint gave the constitutional grounds of the

14th, 9th (she meant 7th) and 5th Amendments and a short

statement of her cause of action.

On December 1, 1985, petitioner submitted a Motion to

Federal District Court to file her First Amended Com-

plaint instanter and pay the filing fee. Jurisdiction was

based on the 5th, 7th, 14th Amendments of the Constitu-

tion and Civil Rights statutes, Title 42 of the U.S.C., Sec-

tions 1983, 1982, 1981, 1985 and 1988, and Title 28 U.S.C.

Sections 1343(3\4), 1344 and 2201, 2202 and 1257.*

District Court denied her Motion by Memorandum-Opin-

ion-Order dated December 30, 1985 and the Appeals Court

confirmed. The Appeals Court’s Opinion begins by restat-

ing the information and stigma of petitioner as in the

respondents’ opinion as if it were proven fact.

Relying on District Court’s Order, Appeals Court re-

ports that petitioner’s Complaint was “frivolous,’’ com-

plaining only of judicial “error,” of not receiving any “rea-

* The allegations of petitioner’s proposed amended complaint are

deemed to be true and all inferences drawn in her favor because

the Seventh Circuit Court of Appeals affirmed the Northern Dis-

trict of Illinois, not on the basis of any judicial discretion in deny-

ing leave to amend or make a late payment of the filing fee but

rather on the basis of the failure of the proposed amended com-

plaint to state a claim within the jurisdiction of the district court.

a

sons” for the reversal of her case, and that she did not

“take exception” to District Court’s Memorandum-Opinion-

Order, reporting:

“{T}t is clear upon closer examination that petitioner

is genuinely not concerned with the vindication of

recognized constitutional rights but rather with pro-

tecting her damage award . . . Appellant does not

claim that the ‘proceedings were a sham or that the

justices invidiously used their office to deprive plain-

tiff of her rights. As such, she failed to state a claim

cognizable in the district court.”’

In her First Amended Complaint petitioner took “great

exception” to district court’s order. She reported the same

facts as herein stated. That the respondents reported

false, unsupported, unsupportable testimony, hearsay,

were silent on all of the major evidence relied on by the

trial court, explained in a full page why the reasons of-

fered by respondents failed as substitute for the proof

both as to fact and as to the time in question in light

of the liberty interests of which the State through the

respondents denied petitioner and that respondents were

guilty of gross negligence and/or intentional misrepresen-

tation of her case. She reported facts representing fraud

and sham, notwithstanding the fact that petitioner did

not use the words “fraud” and “sham” in her First

Amended Complaint (fearing dismissal for their use). She

protested under the Constitution, asking protection by

Federal Court for, the re-attachment of stigma to her by

the State through respondents of a defamatory medical

diagnosis without any medical doctor’s opinion/report, con-

firming proof in the record, or any bona fide report for

the defamation, nor citation of case law or reconciliation

of the legal principles with the proofs for the claim of in-

dependence (and good faith by the college), and with only

a superficial report on contract law. She protested the

=!

removal of her right to the due process of trial, verdict

and judgment award—an appellate review outside of the

rules of due process and the rules of evidence.

In her appeal briefs, petitioner pleaded the same infor-

mation, documented her facts, submitted exhibits, excerpts

of testimony, cited case law definitions of fraud, pleaded

misrepresentation, negligence, fraud and sham proceedings

by respondents in the review of her case.

Respondents ruled that bad faith by the college is a

necessary element of a breach of a school contract. They

then disregarded the trial facts and evidence of bad faith

as reported in petitioner’s appeal brief (e.g., breach of con-

fidentiality), and the numerous proofs showing a long-

standing, close association agency relationship between col-

lege and center.

Respondents, as their primary case law, relied on Eisele

v. Ayers, 63 Ill.App.3d 1039, which adhered to “language-

certain’ contract terms. However, respondents do not

follow Eisele in its application of basic contract law and

“language-certain” terms. They applied the “good faith”

principle and disregarded the fact that the psychological

testing and referrals tc the center thereupon was undis-

puted as being without notice, and accepted from Eisele

the application of the “good faith” principle leaving behind

basic contract law without explaining. They also found

that the words “counseling is available . . .” obligated

petitioner to same without explaining. Therefore they did

not explain their ruling on the contract law, other than

superficially.

Respondents also did not deal with whether a private

college can dismiss students for health reasons it suspects

after provoking the inquiry by the entrapment of covert

psychological testing (on an unreliable test) on the basis

—15—

of the general language in the school catalog such as re-

spondents quote in their opinion.

Is there any responsibility on the part of a State Ap-

peals Court to verify a defendant’s disclaimers and be ac-

countable by the evidence or grant petitioner’s request

for a hearing in which to establish the proofs before re-

versing?

Petitioner sought declaratory judgment and injunction

in Federal Court (under Pulliam v. Allen, 104 S.Ct. 1970,

80 L.Ed.2d 565 (1984)) that the policy of respondents, as

State Appellate Judges, of remaining “silent on the funda-

mental information of law and evidence when reversing

a case is unconstitutional” and requested a hearing in

which to establish the proofs on the issue of independence

(at least).

Petitioner realizes that she may have given far too much

detail on the facts. However for the press of time and

work, etc., she must submit it as is.

REASONS FOR GRANTING THE WRIT

1. This Writ Should Be Granted Because It Presents An

Important Question Of Federal Law Which Should Be

Settled By This Court.

Congress enacted 42 U.S.C. § 1983 “to interpose the fed-

eral courts between the States and the people, as guar-

dians of the people’s federal rights, to protect the peo-

ple from unconstitutional action under color of state law,

‘whether that action be executive, legislative or judicial.’ ”

Mitchum v. Foster, 407 U.S. 225, 242 (1972) (emphasis

added). Claim preclusion under § 1738 cancels § 1983 pro-

—16—

tectiton to people from harm by the judicial branch of gov-

ernment.

2. The Writ Should Be Granted To Settle A Conflict Be-

tween The Federal Circuit Courts Of Appeals.

There is a conflict between the Federal Circuit Courts

of A\ppeals as to whether § 1738 (full faith and credit in

a State court judgment) is always to be employed to pro-

tect. a State court judgment from a § 1983 claim. The

Fiftlh, Seventh and Tenth Circuit Courts of Appeals are

operrating differently under these statutes. The Fifth Cir-

cuit. applies claim preclusion doctrines to bar a § 1983 ac-

tiom. McWilliams v. McWilliams, 804 F.2d 1400 (5th Cir.

1986). In a number of recent decisions, the Tenth Circuit

refused to give claim preclusive effect to prior State court

judgments in § 1983 cases where it was not clearly

established that the plaintiff had a full and fair opportuni-

ty to litigate his claims, Thournir v. Meyer, 803 F.2d 1093

(10t:h Cir. 1986); Scroggins v. Kansas, Dept. of Human

Ressources, Div. of CETA, 802 F.2d 1289 (10th Cir. 19886),

or tthe Court doubted the quality or fairness of the prior

Statte court procedures, Morgan v. City of Rawlins, 792

F.2d 975 (10th Cir. 1986).

Tlhe Seventh Circuit has also held that a prior State

coulrt judgment is not entitled to claim preclusive effect

where the prior state proceedings did not afford the fed-

eral] plaintiff the requisite due process mandated by the

Comstitution. Jones v. City of Alton, 757 F.2d 878 (7th

Cir, 1985); Boileau v. Bethleham Steel Corp., 730 F.2d

929) (3rd Cir.), cert. denied, 469 U.S. 871 (1984). In Jones

v. City of Alton, 757 F.2d 878 (7th Cir. 1985), the Seventh

Cireeuit Court of Appeals appeared to have reached the

Sale result as the Tenth Circuit in Thournir and Scrog-

gimis. However in petitioner’s case, the Seventh Circuit

= =

failed to make the application simply because the respon-

dents properly, if not correctly, decided the legal ques-

tion of whether petitioner had to prove a lack of good

faith or independence and failed to accord petitioner due

process when they simply assumed without explanation

that the evidence she had introduceed—which respondents

did not address—did not in fact prove or could not have

proven agency and bad faith to the satisfaction of the trial

judge. Respondents further improperly assumed that peti-

tioner could not produce any additional evidence on either

point after a remand for further proceedings (as she asked)

in accordance with their legal rulings as to the proper

requirements for her cause of action.

The Seventh Circuit correctly held that respondents did

not act without explanation pursuant to Illinois Supreme

Court Rule 23 as to the legal requirements for her breach

of contract action. The Seventh Circuit, however, com-

pletely failed to see or understand that respondents did

act without explanation pursuant to Rule 23 as to the

facts pertinent to the legal requirements of independence

and bad faith.

3. The Writ Should Be Granted Because The Questions Are

Of Great Public Interest.

The questions presented are of great public interest—

concerning whether the due process of the trial court that

a plaintiff (or defendant) is caused—according to court re-

quirements and rules of evidence—to work so laboriously

to comply with over so many years can be so easily set

aside although one’s most basic rights are involved—is a

matter of substantial public interest.

x

CONCLUSION

The Supreme Court is already overburdened and should

not be required to deal with the protection of federal

rights in state courts on a claim preclusive rather than

an issue preclusive basis. When the state court has not

addressed the federal issue the assistance of the lower

federal courts in the first instance is appropriate. In the

case of habeas corpus this has been traditional.

For these reasons a writ of certiorari should be granted

to review the judgment and opinion of the Seventh Cir-

cuit Court of Appeals.

Respectfully submitted,

LILLIAN ARONSON

9348 Drake Avenue

Evanston, Illinois 60203

(312) 675-7351

Petitioner Pro Se

August 28, 1987

—la—

APPENDIX

[UNPUBLISHED ORDER Not To BE CITED

PER CIRCUIT RULE 53]

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 21, 1987*

March 31, 1987.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. RicHarD D. CupanHy, Circuit Judge

Hon. DANIEL A. MANION, Circwit Judge

LILLIAN ARONSON,

Plaintiff-Appellant,

No. 86-1178 v.

STATE OF ILLINOIS, et al.,

Defendants-Appellees.

Appeal from the United St. 2s District Court for the

Northern District of Iiuaois, Eastern Division.

No. 85 C 5796

William T. Hart, Judge.

* After preliminary examination of the briefs, the court notified

the parties that it had tentatively concluded that oral argument

(Footnote continued on following page)

a,

ORDER

Plaintiff-appellant, proceeding pro se, appeals from the

denial by the district court of her motions to pay a late

filing fee and to file an amended complaint. The district

court denied appellant’s motions on the basis of its holding

that the claims underlying her cause of action were not

cognizable in federal court. We agree that the district

court was not the proper forum for appellant’s suit and,

accordingly, affirm the denial of both of appellant’s mo-

tions.

I.

This suit has its origin in 1967 when appellant was dis-

missed from college after a psychological examination in-

dicated that she did not possess sufficient mental health

to continue her studies. In 1973, appellant filed suit con-

testing her dismissal in district court but her case was

dismissed for want of prosecution—a dismissal affirmed

on appeal to this court. Appellant subsequently filed a sec-

ond suit in federal court alleging a violation of her civil

rights and a violation of the oral contract between the

parties. The district court dismissed the civil rights claim

based upon res judicata and the contract claim was dis-

missed for lack of federal jurisdiction. Appellant appealed

to this court but subsequently dismissed the appeal on

her own motion. Finally, in 1975, appellant filed suit in

state court on the breach of contract theory and, after

a bench trial, was awarded $22,321.60. In Aronson v.

North Park College, 94 Ill. App. 3d 211, 418 N.E.2d 776

* continued

would not be helpful to the court in this case. The notice provided

that any party might file a “Statement as to Need of Oral Argu-

ment.” See Rule 34(a), Fed. R. App. P.; Circuit Rule 34(f). Appel-

lant has filed such a statement and requested oral argument. Upon

consideration of that statement, the briefs, and the record, the re-

quest for oral argument is denied and the appeal is submitted on

the briefs and record.

a

(1st Dist. 1981), however, an Illinois appellate court re-

versed appellant’s award. Appellant’s petition for a rehear-

ing of the decision was later denied. Appellant waited

nearly four years before seeking leave to appeal to the

Illinois Supreme Court but that untimely request was

denied in March 1985.

Still earnestly in search of redress, appellant initiated

the present suit in the district court in June 1985. Ap-

pellant named as defendants the State of Illinois, the

judges of the Illinois Appellate Court First District, First

Division and, the three judges of the appellate court who

ruled on her state appeal. Appellant also sought to pro-

ceed in forma pauperis but the district court concluded

(i) that she possessed significant assets and (ii) that her

complaint was so incomplete as to be frivolous—conclu-

sions precluding in forma pauperis status. On December

18, 1985, appellant filed the motions presently at issue—to

pay her filing fee late and to file an amended complaint—

neither of which, as stated earlier, found favor with the

district court. This appeal ensued.

III.

Although appellant’s amended complaint appears neither

in the record nor in appeliant’s briefs or appendix, the

district court opinion contains a synopsis of the rejected

complaint to which appellant does not take exception. The

proposed complaint alleged violations of the Fifth and

Fourteenth Amendment right of due process, the Four-

teenth Amendment right to equal protection and the

Seventh Amendment right to a jury trial.! Appellant also

claimed violations of 42 U.S.C. §§ 1981, 1982, 1983 and

1985 but she appears to have abandoned pursuit of such

1 Both appellant’s complaint and the district court opinion refer

to an additional Ninth Amendment claim; no such claim, however,

is made by appellant and instead on appeal appellant raises a

Seventh Amendment argument. We shall assume that appellant

confused these two constitutional claims.

—

violations on appeal. Finally, appellant contends that Ili-

nois Supreme Court Rule 23 violates the due process

clause in that it allows appellate court judges to reverse

jury verdicts without citing their reasons for se doing.

The district court denied appellant’s motions because her

underlying claims failed to state cognizable federal claims.

Clearly, appellant’s complaint cannot be filed in federal

court under the court’s diversity jurisdiction, 28 U.S.C.

§ 1332, as there is no diversity of citizenship between ap-

pellant and defendants. Thus, appellant’s cause of action,

if properly before the district court, must present a ques-

tion under some federal law. See 28 U.S.C. § 1331. While

appellant has certainly framed her amended complaint in

constitutional terms, it is clear, upon closer examination,

that she is genuinely concerned not with the vindication

of recognized constitutional rights but rather with pro-

tecting her damage award from unfavorable appellate re-

view. In effect, appellant is asking this court to pass upon

the reversal of her case by the Illinois Appellate Court—

we are without jurisdiction to so act.

Absent allegations that the state court “proceedings

were a sham that the justices invidiously used their of-

fices to deprive plaintiff of her rights,” a plaintiff cannot

resort to the lower federal courts to attack a final judg-

ment of state courts. See Adkins v. Underwood, 520 F.2d

890, 893-94 (7th Cir.), cert. denied, 423 U.S. 1017 (1975).

Under 28 U.S.C. Section 1257 review of the final judg-

ment of a state court may only be had in the Supreme

Court. As the Supreme Court recently held:

[United States district courts] do not have jurisdic-

tion . . . over challenges to state-court decisions in

particular cases arising out of judicial proceedings

even if these challenges allege that the state court’s

action was unconstitutional. Review of those decisions

may be had only in this Court. 28 U.S.C. Section

1257.

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 486 (1983). Appellant does not claim that the

OU Lae Mea mt

—5a—

“proceedings were a sham or that the justices invidious-

ly used their office to deprive plaintiff of her rights.” As

such, she failed to state a claim cognizable in the district

court. .

To the extent appellant’s complaint could be liberally

construed to constitute a challenge to Illinois Supreme

Court Rule 23, her claim was also properly dismissed.

Although 28 U.S.C. Section 1257 does not bar an attack

on “the validity of a rule promulgated in a non-judicial

proceeding’, see District of Columbia Court of Appeals

v. Feldman, 460 U.S. at 486, Illinois Supreme Court Rule

23 has no bearing on the issues of this case. Illinois Su-

preme Court Rule 23 allows the appellate courts in IIli-

nois to dispose of an appeal by entry of an unpublished

written order. The Illinois appellate court decision revers-

ing appellant’s damage award, however, was a published

decision which thoroughly analyzed appellant’s case and

logically explained the rational for the court’s decision.

See Aronson v. North Park College, 94 Ill. App. 3d 211,

418 N.E.2d 776 (1st Dist. 1981). Because Illinois Supreme

Court Rule 23 is irrelevant to any injury appellant may

have suffered she lacks the standing necessary to chal-

lenge the rule. See Myron v. Chicoine, 678 F.2d 727, 730

(7th Cir. 1982).

Accordingly, the district court’s decision is in all respects

AFFIRMED.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the

same is hereby, AFFIRMED, with costs, in accordance

with the order of this Court entered this date.

ae

94 Ill.App.3d 211

LILLIAN ARONSON, Plaintiff-Appellee and Cross-

Appellee, v. NORTH PARK COLLEGE, Defendant-

Appellant and Cross-Appellee.

First District (lst Division) Nos. 80-383, 80-1817 cons.

Judgment reversed.

Opinion filed February 2, 1981—

Rehearing denied April 18, 1981.

1. APPEAL AND ERROR (§ 1013)—issue will be held

waived when point is not argued or raised.

2. FORMER ADJUDICATION (§ 26)—dismissal of

Federal action due to counsel’s failure to appear for

status report did not bar subsequent action in State court.

Dismissal of original Federal court action because plain-

tiff’s attorney failed to appear in court for status report

was not res judicata so as to bar subsequent action in

State court.

38. COLLEGES AND UNIVERSITIES (§ 5)—private

college was not liable to student for dismissing her based

on psychologist’s report as to her emotional condition.

Private college, which advised plaintiff-student in writing

that plaintiff would not be permitted to continue her

studies at such college after expiration of term after re-

ceiving memorandum from qualified psychologist that

plaintiff suffered chronic paranoid condition which would

be serious detriment to plaintiff and others, acted in ac-

cordance with and within limitations of written contract

between parties and was not liable to plaintiff.

APPEAL from the Circuit Court of Cook County; the

Hon. CHARLES E. FREEMAN, Judge, presiding.

=

Smith & Munson, Ltd., of Chicago (James G. Meyer,

of counsel), for appellant.

Wayne’ B. Giampietro and Gregory N. Freerksen, of

Chicago (DeJong, Poltrock & Giampietro, of counsel), for

appellee.

Mr. PRESIDING JUSTICE GOLDBERG delivered the

opinion of the court:

Lillian Aronson (plaintiff) brought this action against

defendant North Park College (NPC), a private school,

as a result of her dismissal as a student. After a bench

trial, plaintiff was awarded damages of $22,231.60. Defen-

dant appeals and plaintiff seeks an increase in damages

by cross-appeal.

Plaintiff originally filed a complaint against defendant

and other named persons in the United States District

Court for the Northern District of Illinois. That action

alleged a violation of plaintiff's civil rights as a result of

her dismissal from NPC. The case was dismissed because

plaintiff's attorney failed to appear for a status report.

The court of appeals affirmed the dismissal.

Plaintiff filed a second suit in Federal District Court

again alleging a violation of her civil rights and also a

violation of the oral contract between the parties. An

order was entered based upon res judicata granting defen-

dant’s motion to dismiss “all claims except those relating

to the breach of contract claim.” Thereafter, an order was

entered dismissing the breach of contract claim for lack

of federal jurisdiction. Plaintiff appealed to the court of

appeals, but subsequently dismissed this appeal on her

own motion.

On January 8, 1975, plaintiff filed the instant action in

the circuit court. Her amended complaint was also based

on plaintiffs dismissal from NPC in 1967. Count I alleged

a breach of contract. Count II alleged a violation of plain-

tiffs constitutional rights. Count III alleged an arbitrary

and a negligent violation of her right to privacy. The trial

court dismissed Count II on the basis of res judicata and

afi

Count III as being barred by the statute of limitations.

The trial proceeded only on the breach of contract claim

as alleged in Count 1.

The evidence shows ‘hat on January 25, 1966, plaintiff

applied to NPC for admission as a student. She was ac-

cepted and completed one evening course in the spring

and another in the summer of 1966. That fall, she enrolled

as a full-time student.

In November 1966, plaintiff received a notice from the

dean of students to take the Minnesota Multiphasic Per-

sonality Inventory Test (MMPI). This test was developed

by the University of Minnesota and consists of 566 ob-

jective questions. There is evidence that this test is a well-

regarded psychological examination and that all incoming

students were required to take it. As a result of their

scores, some students were referred to the Covenant Coun-

seling Center (counseling center) for a review of their test

score. On the basis of this review, the counseling center

would decide if further counseling was necessary. Plain-

tiff testified she received no information about psycho-

logical testing before her fall enrollment.

Plaintiff subsequently took the test which was graded

at the University of Minnesota. Pursuant to standard pro-

cedure, the counseling center staff reviewed plaintiff's

score. Because her results showed a deviation from nor-

mal, the center notified NPC. In February 1967, plain-

tiff received a notice to go to the counseling center for

interpretation of her score. She did not appear for her

scheduled appointment. The dean of students, Carroll J.

Peterson, sent plaintiff a letter requesting her to appear

at the center or face dismissal. In a telephone conversa-

tion, Dean Peterson told plaintiff she would be obliged

to appear at the center several times and this procedure

was required of 5 to 10 percent of all NPC students.

On February 21, 1967, plaintiff had a 30 minute inter-

view with William O. Hunt, a student psychologist at the

counseling center. During this interview she was given

another personality test. Plaintiff returned to the coun-

ecb ute

Oe.

seling center on March 20, 1967, to fill out a biographical

questionnaire. When asked when she would return, plain-

tiff sought out Mr. Hunt, protested, and departed. Mr.

Hunt subsequently prepared a report dated March 28,

1967, describing plaintiff as “frightened and running” or

“slightly below average in intelligence” and with symp-

toms of “blocking” and ‘denial’.

Plaintiff returned to the counseling center on May 9,

1967, for a brief interview with Dr. Richard Cox, a clinical

psychologist. On May 11, Dean Peterson received the fol-

owing memorandum from Dr. Cox concerning plaintiff:

“The above named student was seen as a result of

MMPI deviations. Further interviews reveal a pro-

nounced, chronic paranoid condition which will be a

serious detriment to herself and others. This is par-

ticularly serious inasmuch as she plans to enter the

field of education. She is totally unaware of her con-

dition, unwilling to involve herself in treatment and

therefore at this time renders herself untreatable.

This student does not possess sufficiently strong men-

tal health to continue the pursuits of college or an

educational career at this time.”

On the basis of this memorandum, Dean Peterson wrote

plaintiff a letter informing her of her dismissal from NPC

at the end of the term due to her lack of “sufficiently

strong mental health.”

A meeting of the counseling center staff was held on

May 16, 1967. Dr. Truman Esau, the staff psychiatrist,

attended. The staff as a whole diagnosed plaintiff as be-

ing in a “paranoid state”.

Between July 1967 and June 1968 plaintiff had several

contacts with Dean Peterson and other NPC officials con-

cerning readmission. She requested the school to contact

her then current psychiatric therapist. On June 19, 1968,

Dean Peterson refused plaintiff's request for readmission

due to her mental status. Subsequently, on July 9, 1968,

Dean Peterson received the following memorandum from

Dr. Esau:

—10a—

“This will confirm that I have had a contact from

Dr. Francis Parks who is the therapist of Lillian

Aronson. It is my understanding from my conversa-

tion that the patient’s personality characteristics are

unaltered. Any behavioral difficulty that you experi-

enced with her would likely be recurrent.”’

Plaintiff was granted permission to return to NPC in June

1969, but enrolled in another college.

The parties stipulated as to the testimony of two

psychologists and one psychiatrist who would testify the

personality test relied upon is not a reliable screening

device and the diagnoses of plaintiff were therefore inac-

curate. However, all three admitted they had not exam-

ined plaintiff in 1967. Two of them conceded that if they

had, their opinions might change. Stipulated testimony

was also entered from seven of plaintiff's personal and

business associates that plaintiff exhibited no signs of men-

tal disorder.

In this court, defendant contends: the trial court should

have dismissed the action on the theory of res judicata;

the judgment is contrary to law because it involved the

dismissal of plaintiff from a private college; and, alter-

natively, plaintiff is not entitled to an increase in damages.

I.

As shown, Count III of the amended complaint alleged

the defendant NPC was guilty of “arbitrary and discrimi-

natory and unlawful conduct” and of “a negligent or wilful

invasion of plaintiffs right to privacy * * *.” This count

was dismissed prior to trial. Count II alleged defendant

was guilty of “arbitrary and discriminatory” actions which

deprived plaintiff of her right to due process of law. Count

II was dismissed by the trial court in the final order ap-

pealed from. No point is raised or argued by plaintiff on

this dismissal and the issue is therefore waived. Ill. Rev.

Stat. 1979, ch. 110A, par. 341(eX7); Village of Crainville v.

Argonaut Ins. Co. (1980), 81 Ill. 2d 399, 405, 410 N.E.2d 5.

—lla—

Count I was therefore the only remaining count. The

gist of that count is simply an allegation defendant

“breached the written contract” between the parties. This

contract consisted of the college catalog, bylaws and other

pertinent written regulations.

Defendant contends the trial court erred in refusing to

dismiss Count I since plaintiff's cause of action was barred

by res judicata. This argument by defendant is predicated

on its theory that “dismissal of the original Federal Court

lawsuit, 73 C 245, was a judgment ‘on the merits.’ ” If

a subsequent action is to be barred by res judicata the

initial judgment must be “upon the merits.” See Towns

v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.

Plaintiff's second federal suit was dismissed on the

ground of res judicata on the civil rights claim and lack

of federal jurisdiction on the breach of contract claim. The

decisive issue in this court is the effect of the federal

court action on Count I of the instant case.

The original federal action was dismissed because plain-

tiffs attorney failed to appear in court for a status report.

Supreme Court Rule 273, (Ili. Rev. Stat. 1979, ch. 110A,

par. 273) provides:

“Unless the order of dismissal or a statute of this

State otherwise specifies, an involuntary dismissal of

an action, other than a dismissal for lack of jurisdic-

tion, for improper venue, or for failure to join an in-

dispensable party, operates as an adjudication upon

the merits.’”’ (Emphasis added.)

However, when plaintiff filed her action in the trial

court, section 24 of the Limitations Act, (Ill. Rev. Stat.

1975, ch. 83, par. 24a) provided, in part, that where an

“action is dismissed for want of prosecution then, whether

or not the time limitation for bringing such action expires

during the pendency of such suit, the plaintiff * * * may

commence a new action within one year or within the re-

maining period of limitation, whichever is greater, after

such * * * action is dismissed for want of prosecution.”

oo

“In Kutnick v. Grant (1976), 65 Ill. 2d 177, 357 N.E.2d

480, secction 24 of the Limitations Act was determined to

be a sttatute that ‘otherwise specifies’ within the mean-

ing of FRule 273,” (Bruer v. Livingston County Board of

Zoning, Appeals (1978), 66 Ill. App. 3d 938, 940, 383 N.E.

2d 10165.) In Kutnick, plaintiff's original action was also

dismiss¢ed for want of prosecution when his attorney failed

to appesar at a regular call of cases. Defendant contended

the disrmissal of the original action for want of prosecu-

tion “opperated as an adjudication of the plaintiff's case

on the imerits under our Rule 273 * * * and thus barred

oe filimg of plaintiff's second complaint.” 65 Ill. 2d 177,

The ‘supreme court dismissed defendant’s argument

stating (65 Ill. 2d 177, 180-81):

“The defendant argues that the portion of section 24

of tthe Limitations Act quoted above is not a statute

thaat ‘otherwise specifies’ within the meaning of Rule

2733. The argument is hardly convincing. If one inter-

preets Rule 273 as the defendant would have us do,

thaat part of section 24 which is involved here would

meaningless. If the defendant’s reading of the sec-

tiotn were to be adopted, every suit dismissed for

Walnt of prosecution and reinstated or filed again pur-

SuUaant to section 24 would be vulnerable to dismissal

uncder Rule 273. It cannot be reasonably contended

thaat this was the intent of the legislature in enact-

Ingy section 24. Section 24 plainly states that if a suit

1S dismissed for want of prosecution a new action may

be filed within one year of the dismissal. * * *.”

Thus, we conclude res judicata is not applicable to bar

Count Ij.

Il.

The réeeord shows, and it is conceded, there was a writ-

ten contract between these parties. Plaintiffs brief sets

out the. pertinent documents which constitute the contract.

—13a—

On January 25, 1966, plaintiff signed and tendered a

written application for admission to NPC. Various blanks

in this form have been filled in by typewriter and in plain-

tiffs handwriting. Plaintiff signed this application. Imme-

diately above plaintiff's signature the following printed

language appears:

“If my application for admission is accepted, I agree

to abide by all regulations of the institution and to

respect its traditions. I certify that to the best of my

knowledge the statements made in this application

are correct and complete.”

The college catalog issued by NPC for 1964 to 1966 con-

tains the following provisions:

“The Counseling Center, 3417 West Foster, is joint-

ly sponsored by North Park and Swedish Covenant

Hospital. Its staff consists of a psychiatrist, a clinical

psychologist, a psychiatric social worker and an in-

take counselor. The Center is equipped to handle a

variety of psychological problems.

“This service is available to any student upon his

request or by referral. Appointments may be made

by consulting the intake counselor in the Center. The

initial evaluation is without charge. There is a charge

for treatment. Students may be assured of the confi-

dentiality of these interviews.”

Another portion of this college catalog provides:

“The institution reserves the right to dismiss at any

time a student who in its judgment is undesirable

and whose continuation in the school is detrimental

to himself or his fellow students. Such dismissal may

be made without specific charge. Students who have

been suspended or expelled will receive no refund of

moneys paid to the school.”

It is plaintiff's theory that liability arises because the

evidence shows NPC has acted in an arbitrary and capri-

cious manner. Plaintiff urges NPC breached its written

assurance of confidentiality, required plaintiff to report

—l4a—

for psychiatric counseling and terminated the status of

plaintiff as a student. Plaintiff urges that whether the con-

duct of defendant as shown by the record was arbitrary

and capricious is an issue of fact. Defendant contends the

judgment of the trial court is contrary to law and courts

have no authority to review dismissal of a student from

a private college.

The single Illinois decision relied upon by plaintiff is

DeMarco v. University of Health Sciences Chicago Medi-

cal School (1976), 40 Ill. App. 3d 474, 352 N.E.2d 356.

There, in plaintiff's application for admission to the private

school, he answered “no” to the question, ““Have you at-

tended another medical school?” Plaintiff completed all but

the last six weeks of his final year. The school ascertained

plaintiff had, in fact, previously attended another medical

school. After discussion, plaintiff and the school agreed

plaintiff would enter the armed forces and would be re-

admitted if honorably discharged. Plaintiff complied with

these conditions, but later the school refused to re-admit

plaintiff unless he made a pledge for a contribution to the

school. The majority of this court held plaintiff was en-

titled to receive his academic degree.

It is manifest that the facts in DeMarco differ sharply

from the instant case. In DeMarco, there was no contrac-

tual obligation upon the student to make any contribu-

tion to the school. On the contrary, in the instant case

the reason for the separation of plaintiff is clearly stated

in and justified by the contract between the parties. The

abstract principle for which DeMarco stands (40 Ill. App.

3d 474, 480), was quoted by the supreme court in a class

suit, Steinberg v. Chicago Medical School (1977), 69 Ill.

2d 320, 332, 371 N.E.2d 634, as follows:

““*A contract between a private institution and a

student confers duties upon both parties which can-

not be arbitrarily disregarded and may be judicially

enforced. [Citations.]’ ”’

We find the same principle well stated in Eisele v.

Ayers (1978), 63 Ill. App. 3d 1039, 381 N.E.2d 21. There,

a. a. ren en ar Sent Seek Ce Cr. errs Si

—1l5a—

a class action was brought by students to enjoin a pro-

posed tuition increase. This court affirmed an order dis-

missing the case on the theory that a tuition increase did

not violate the contract between the students and the

school which was based upon the catalogs issued by the

school. The court held (63 Ill. App. 3d 1039, 1044):

“The catalogues which formed the basis of the con-

tract between the parties reserved to defendants the

right to increase tuition. Nothing in the complaint in-

dicates that defendants have exercised this right

maliciously or in bad faith. In the absence of such

allegations, defendants may not be coerced in the

lawful exercise of their discretion.”

In support of this position, the court cited People ex

rel. Tinkoff v. Northwestern University (1947), 333 III.

App. 224, 77 N.E.2d 345; Manson v. Culver Military

Academy (1908), 141 Ill. App. 250; and also Basch v.

George Washington University (D.C. 1977), 370 A.2d 1364,

— with a tuition increase and reaching the same re-

sult.

In the present case, precisely as in Eisele, Count I con-

tains no allegation of bad faith or malicious conduct by

NPC. There is no allegation of arbitrary and capricious

conduct. Count I simply alleges NPC “breached the writ-

ten contract.”

Applying the teaching of Fisele to the case before us,

NPC, as a private college, had complete right to enforce

reasonable regulations for the proper conduct of the

school. By signing the application for admission, plaintiff

agreed to abide by all regulations of NPC. The catalog

clearly provided for counseling upon request ‘‘or by refer-

ral.” The defendant specifically reserved the right to dis-

miss at any time any student who in defendant’s judg-

ment was “undesirable and whose continuation in the

school is detrimental to himself or his fellow students.”

The provision is clear that, “Such dismissal may be made

without specific charges.” In our opinion, this record pre-

sents no evidence of arbitrary, capricious, mailcious or im-

proper conduct by NPC.

—1l6a—

The sole issue here is whether defendant acted in ac-

cordance with and within the limitations of the written

contract between the parties. The evidence shows a

memorandum was sent to NPC by Dr. Richard H. Cox,

a fully qualified psychologist. NPC was informed thereby

that plaintiff suffered from a “chronic paranoid condition

which will be a serious detriment to herself and others.”

It must be remembered Dr. Cox was not an official of

defendant but was associated with the independent coun-

seling center. Ii was only after receiving this information

that defendant advised plaintiff in writing she would not

be permitted to continue her studies at defendant school

after expiration of the term. In addition, defendant re-

ceived a later memorandum from Dr. Truman G. Esau,

also associated with the North Park Clinic. He advised

plaintiff's personality characteristics were unaltered and

behavioral difficulty with plaintiff “‘would likely be recur-

rent.”

Furthermore, this record shows no reason for NPC or

its staff to have any doubts or misgivings concerning the

accuracy of the information regarding plaintiff's condition

as presented by the counseling center. We expressly re-

ject the contention of plaintiff that there was an agency

relation between NPC and the counseling center. It is cor-

rect that the center is housed in a building owned by

NPC. Although NPC did provide some portion of the

funds for the counseling center, the record shows the

center was also funded by Swedish Covenant Hospital.

The Illinois Department of Mental Health also participated

in funding the center and required the center to provide

services to the surrounding community. The counseling

center provided its independent services not only to NPC

but also to Wheaton College and Olivet Nazareth College.

In addition, there was no overlapping of personnel be-

tween NPC and the counseling center. No member of the

oe center staff was in any manner connected with

NPC.

Thus, we find here a complete lack of any evidence of

bad faith, malicious conduct or arbitrary and capricious

—17a—

action by NPC. In view of the information presented to

the college authorities as above shown, it was incumbent

upon them as part of their duties to effect a separation

of plaintiff from the college. In the trial court, this case

proceeded upon the theory that the dispositive issue was

the truth or falsity of the information given to NPC by

the counseling center. Plaintiff's able counsel on appeal

did not participate in the trial court. Plaintiff produced

evidence from her friends and other persons as above

shown regarding the alleged actuality of plaintiff's men-

tal condition. However, the matter should properly have

been presented upon the issue above discussed as to

whether NPC acted with propriety and within the terms

of the contract between the parties by accepting the

diagnostic opinion which emanated from the counseling

center.

We accordingly conclude defendant NPC is without lia-

bility in this situation.

In view of the above, it is unnecessary for us to con-

sider plaintiff's cross-appeal asking an increase in the

amount of damages allowed by the trial court.

For these reasons the judgment appealed from is re-

versed.

Judgment reversed.

McGLOON and CAMPBELL, JJ., concur.