Petition for Writ of Certiorari — National Right to Work Legal Defense & Education Foundation, Inc. v. American Federation of State, County & Municipal Employees

ES EE I Fae on ne

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89-2925)

No. i CLERK

IN THE

Supreme Court of the Gniled States

OCTOBER TERM, 1989

ESTATE OF JACK GILPIN

Petitioner,

v.

AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL

EMPLOYEES, AFL-CIO, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MILTON L. CHAPPELL

c/o National Right to Work

Legal Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

Counsel for Petitioner

August 21, 1989

FILED

1] AUG 22 3098

JOSEPH F. SPANIOL, JR.

’ SS ET Tere ge ne a Per? © Fe) 2) Cee oo , - oe aah

ea

QUESTION PRESENTED

Whether the judgment and opinion of the court of

appeals should be vacated because the case has become

moot by the unilateral action of the respondent union

several weeks prior to the filing of the petition for a writ

of certiorari?

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PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceedings below were:

Plaintiffs: Jack Gilpin (now deceased), Stephen A.

Petrilli, Jerome [Jeanne] A. Dietrich, Margaret E.

Dailey, Sandra S. Coe, Karen Hirstein, Ray Anderson,

Gail Mueller [Micheletta], and Scott Mauck.'

Defendants: American Federation of State, County

and Municipal Employees, AFL-CIO ("AFSCME");

and in their official capacities,?> Roland Burris,

Comptroller of the STATE OF ILLINOIS; Richard

McClure, Director of the ILLINOIS DEPARTMENT

OF CENTRAL MANAGEMENT SERVICES;

Gregory L. Coler, Director of the ILLINOIS

DEPARTMENT OF PUBLIC AID; Edward Duffy,

Director of the ILLINOIS DEPARTMENT OF

ALCOHOLISM AND SUBSTANCE ABUSE; David

W. Hardwick, Director of the ILLINOIS

DEPARTMENT OF VETERAN’S AFFAIRS; Larry

Werries, Director of the ILLINCIS DEPARTMENT

OF AGRICULTURE; Brad Evilsizer, Director of the

ILLINOIS DEPARTMENT OF MINES AND

MINERALS; Gregory W. Baise, Director of the

ILLINOIS DEPARTMENT OF TRANSPORTATION;

Bernard J. Turnock, Director of the ILLINOIS

DEPARTMENT OF PUBLIC HEALTH; Michael B.

‘In light of the recent decisions of Torres v. Oakland Scavenger

Co., __ U.S. __, 108 S. Ct. 2405 (1988); Allen Archery, Inc. v. Precision

Shooting Equipment, Inc., 857 F.2d 1176 (7th Cir. 1988); this petition

is filed only on behalf of the Estate of Jack Gilpin, whose decedent

was, in retrospect, the only appellant in the court of appeals.

>The real party in interest in an official-capacity suit is the entity

repzesented and not the individual office holder. Karcher v. May, 484

U.S. 72, 108 S. Ct. 388, 393 (1987); Kentucky v. Graham, 473 U.S.

159, 166 (1985).

see

- lil -

Witte, Director of the ILLINOIS DEPARTMENT OF

CONSERVATION; John E. Washburn, Director of

the ILLINOIS DEPARTMENT OF INSURANCE;

James B. Zagel, Director of the ILLINOIS

DEPARTMENT OF LAW ENFORCEMENT; J.

Thomas Johnson, Director of the ILLINOIS

DEPARTMENT OF REVENUE; Michael Fryzel,

Director of the ILLINOIS DEPARTMENT OF

FINANCIAL INSTITUTIONS; Mike Woelffer,

Director of the ILLINOIS DEPARTMENT OF

COMMERCE AND COMMUNITY AFFAIRS; Terry

Lash, Director of the ILLINOIS DEPARTMENT OF

NUCLEAR SAFETY; Michael Belletire, Director of

the ILLINOIS DEPARTMENT OF MENTAL

HEALTH AND) DEVELOPMENTAL DISABILITIES;

Gary L. Clayton, Director of the ILLINOIS

DEPARTMENT OF REGISTRATION AND

EDUCATION; Michael P. Lane, Director of the

ILLINOIS DEPARTMENT OF CORRECTIONS;

Gordon Johnson, Director of the ILLINOIS

DEPARTMENT OF CHILDREN AND FAMILY

SERVICES; Janet Otwell, Director of the ILLINOIS

DEPARTMENT OF AGING; Joyce E. Tucker, Direc-

tor of the ILLINOIS DEPARTMENT OF HUMAN

RIGHTS; Susan Suter, Director of the ILLINOIS

DEPARTMENT OF REHABILITATION SERVICES;

‘Dr. Donald Etchison, Director of the I'.LINOIS

DEPARTMENT OF ENERGY AND NATURAL

RESOURCES; Sally Ward, Director of the ILLINOIS

DEPARTMENT OF EMPLOYMENT SECURITY;

and Richard Carlson, Director of the ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY.

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TABLE OF CONTENTS

QUESTION PRESENTED ............

PARTIES TO THE PROCEEDINGS

ee ear Tee TREES e ee

TABLE OF CONTENTS ......cccccace

TABLE OF AUTHIORITIES ...........

og ge ee

Pe ee ee

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

SUGGESTION OF MOOTNESS ........

REASONS FOR GRANTING THE

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REE 6. 04.666 5% 0 KG 58 66 008650:

APPENDIX

Opinion of the United States

Court of Appeals for the

Seventh Circuit (May 24, 1989) .....

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TABLE OF CONTENTS—CONTINUED

Page

Order (and opinion) of the

United States District

Court for the Central

District of Illinois

eds 65 kas oe ese ge ye os aoe

Order (and opinion) of the j

United States District

Court for the Central

District of Illinois

CCE So cesessencceess ees 24a

Order (and opinion) of the

United States District

Court for the Central

_ District of Illinois

PLS ead eb ae esas cedeus 30a

Judgment of the United States

Court of Appeals for the

Seventh Circuit (May 24, 1989)........ 35a

- Vi -

TABLE OF AUTHORITIES

CASES Page

Allen Archery, Inc. v. Precision

Shooting Equipment, Inc.,

S57 F.20 1176 (7th Cer. ISSR) 0. ww wwe ii

Board of License Commissioners

v. Pastore, 469 U.S. 238 (1985) ............ 4

Chicago Teachers Union, Local No. 1

v. Hudson, 475 U.S. 292 (1986) ........... 3, 4

Commodity Futures Trading Commission

v. Chicago Board of Trace, 701 F.2d

EE eee 6

Deakins v. Monaghan, 484 U.S. 193,

fF Bee Le | AAP ree eee eee 4, 5, 6

Fusari v. Steinberg, 419 U.S. 379 (1975) ........ 4

Gibney v. Toledo Federation of Teachers,

Oe Gee Gk Oe EPO CRP bocce were necnes 4

Great Western Sugar Co. v. Nelson,

ee eee 6

Honig v. Students of California School

for the Blind, 471 U.S. 148 (1985) .......... 4

Karcher v. May, 484 U.S. 72,

ee eee eee ee ce ii

Kentucky v. Graham, 473 U.S. 159 (1985) ...... ii

- Vii -

TABLE OF AUTHORITIES—CONTINUED

Page

North Carolina v. Rice, 404 U.S. 244

ee gee ig oa ey od 5

Onwuasoanya v. United States, ____ U.S. __,

EE ch bec eek eweeneeadess 6

Powell,v. McCormack, 395 U.S. 486 (1969) ..... 5

Preiser v. Newkirk, 422 U.S. 395 (1975) ........ 5

Sibron v. New York, 392 U.S. 40 (1968) ....... 5

Tierney v. City of Toledo, 824 F.2d 1497

Ce Se SE 6 OF CARER Sek So eh cee cence

Torres v. Oakland Scavenger Co.,

a Var .., see & CL 20 (1988) ......... ii

United States v. Munsingwear, Inc.,

ok eee eee ee 1, 6, 7

Weinstein v. Bradford, 423 U.S. 147

Ep a pe ae re ee ee 6

STATUTES

Judicial Code

NS os osc ncn cunsnenns 2

ogg ow ks ksncksasawias 3

pe ee ee eee 3

- Vill -

TABLE OF AUTHORITIES—CONTINUED

Page

Rk er ee 2

SP PEE e.cbe.000 ee cecensencsces 3

PE ptiwr wets we Vkeecew hs 3

Civil Rights Act .

I 6 an A's 6's bw o'0-6 05 6a 846408 3

OTHER AUTHORITIES

Note, Collateral_-Estoppel Effects of

Judgments Vacated Pursuant to

Settlement, 1987 U. ILL. L.

re Se Ree E Tee 6

No. 89-

IN THE

Supreme Court of the Gnited DStales

OCTOBER TERM, 1989

ESTATE OF JACK GILPIN,

Petitioner,

Vv.

AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES, AFL-CIO, et ai.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Estate of Jack Gilpin, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit entered on May 24, 1989, and that said

judgment and opinion in the above-entitled case be

vacated and remanded with instructions to dismiss the

cause as moot. United States v. Munsingwear, Inc., 340

U.S. 36, 38-39 (1950).

x

OPINIONS BELOW

The opinion of the court of appeals (Appendix

("App.") la) is reported at 875 F.2d 1310. The district

court’s first opinion, entered on July 30, 1986 (App. 13a),

is reported at 643 F. Supp. 733.° The district court’s last

two unreported opinions, entered on June 29, 1987, and

June 14, 1988, are reproduced at App. 24a; 30a. -

JURISDICTION

The judgment of the court of appeals was entered on

May 24, 1989. This petition is being filed within ninety

days from the date the judgment sought to be reviewed,

vacated and remanded was rendered. This Court has

jurisdiction under 28 U.S.C. §§ 1254(1) and 2101(c).

STATEMENT OF THE CASE

Petitioner’s decedent, Jack Gilpin, appellant below,

and eight other nonunion employees, all of whom were

employed by Illinois state and local agencies, were subject

to a collective bargaining agreement, entered into pursuant

to Illinois law, requiring them to pay compulsory agency

fees to the American Federation of State, County and

Municipal Employees, AFL-CIO ("AFSCME") as a

condition of employment. By law, AFSCME was required

to certify the amount of such compulsory fees, and the

State then deducted the fees from the employees’

paychecks, remitting the amounts collected to AFSCME.

The nine nonunion employees brought suit in

September 1985 to contest the collection of such

None of the parties appealed from the first opinion.

a

compulsory fees.‘ After some preliminary hearings and

rulings, the district court on July 30, 1986, determined that

a "notice" concerning the fees, sent by AFSCME to

employees in 1985, and the procedures for challenging the

fees, were constitutionally defective under Chicago Teachers

Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986) (App.

13a). The next notice, sent by AFSCME in 1986, was also

found to be constitutionally defective by Order entered

June 29, 1987 (App. 24a). About three years after the

case was filed, the district court finally ruled that a 1987

version of the notice was constitutionally sufficient (App.

30a).

Notwithstanding its previous findings of constitutional

violations, the court determined there were no damages,

denied restitution of fees for the two years the notice was

found constitutionally defective, denied certification of a

class for a second time, and dismissed the case (App. 30a).

Jack Gilpin appealed.

Jack Gilpin raised four issues on appeal! which the

court of appeals said "merit discussion" (875 F.2d at 1313;

App. 4a). They were whether the district court: (1) should

have certified the suit as a class action; (2) should have

issued a preliminary injunction against collection of the

1985 fees; (3) should have ordered restitution of fees

collected in 1985 and 1986; and (4) should have, as it did,

found the 1987 notice adequate.” Nonetheless, the court

of appeals rejected all four issues and "dismissed [the

‘jurisdic.:on in the district court was based on 28 U.S.C. §§ 1331,

1343, 2201-02 and 42 U.S.C. § 1983.

5See note 1, supra, at ii.

°Gilpin also raised in his brief the issue whether, at least, nominal!

damages should have been awarded for the adjudicated constitutional

violations. The court of appeals did not discuss this issue.

ee

appeal] insofar as it challenges the denial of the plaintiffs’

motion for a preliminary injunction [and o]therwise .. .

affirmed [the judgment]." (875 F.2d at 1316-17; App. 12a.)

SUGGESTION OF MOOTNESS

While it is probably rare for the petitioner to suggest

mootness, nevertheless, this Court has reminded counsel

that they have a duty to inform the Court of any

development that would suggest mootness. See Board of

License Commissioners v. Pastore, 469 U.S. 238, 240 (1985);

Fusan v. Steinberg, 419 U.S. 379, 391 (1975) (Burger, C-_J.,

concurring); cf. Honig v. Students of California School for

the Blind, 471 U.S. 148, 152 (1985) (Marshall, J.,

dissenting).

“When a claim is rendered moot while awaiting review

by this Court," Deakins v. Monaghan, 484 U.S. 193, 108 S.

Ct. 523, 528 (1988), it falls upon the petitioner to suggest

that the cause is moot. Such is the case here.

The prospective equitable issues and requested relief

became moot upon Jack Gilpin’s recent death. However,

the issue of restitution’ still existed because union dues and

fees had been automatically deducted from Jack Gilpin’s

salary during the two years the district court had

determined the necessary constitutional procedures for

such collections were absent.

Then, a month before this petition for certiorari was

due, AFSCME unexpectedly and _ unilaterally sent

7The court of appeals’ denial of restitution conflicts with the

allowance of restitution by the Sixth Circuit and the Ohio Supreme

Court when the required Hudson safeguards are absent. Tierney v.

City of Toledo, 824 F.2d 1497 (6th Cir. 1987); Gibney v. Toledo

Federation of Teachers, 40 Ohio St. 3d 152 (1988).

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petitioner and the other eight nonunion plaintiffs checks in

amounts that exceeded the amount of restitution petitioner

had planned to request this Court to order.*

Petitioner has accepted this payment as complete

settlement of all outstanding claims. Consequently, there

no longer is a live controversy between the parties, nor any

questions that can affect the rights of the litigants in this

case, nor the concreteness and kind of adversariness which

assures a presentation with requisite diligence and fervor

that is necessary for a Federal court to decide a case. See

Deakins, 108 S. Ct. at 528; Preiser v. Newkirk, 422 U.S. 395,

461 (1975); North Carolina v. Rice, 404 U.S. 244, 246

(1971); Powell v. McCormack, 395 U.S. 486, 496 (1969);

Sibron v. New York, 392 U.S. 40, 57 (1968).

REASONS FOR GRANTING THE WRIT

Since the issues in this case are now moot, this Court

should grant the Estate of Jack Gilpin’s petition for a writ

of certiorari, vacate the judgment and opinion of the court

of appeals, and remand with instructions to dismiss the

Cause as moot.

When events occurring after the court of appeals has

decided a case but before the Supreme Court has acted on

a petition for certiorari have, as here, eliminated any

possibility that the Court’s order may grant meaningful

relief affecting the controversy that precipitated the

litigation, it is the duty and established practice of this

Court to grant the petition for writ of certiorari, vacate the

SRather than the 1% of the amount deducted in 1986, which the

court of appeals noted AFSCME had promised to return and upon

which the court based its denial of any additional restitution (875 F.2d

at 1312, 1313-15; App. 3a, 6a-7a), AFSCME returned 120% of that

year’s deduction!

.

decree below and remand the cause with directions to

dismiss the complaint as moot. Onwuasoanya v. United

States, ____ U.S. ___, 109 S. Ct. 299 (1988); Deakins, 108

S. Ct. at 526-29 & nn. 4&5; Great Western Sugar Co. v.

Nelson, 442 U.S. 92 (1979); Weinstein v. Bradford, 423 U.S.

147 (1975); Munsingwear, 340 U.S. at 39-41; Commodity

Futures Trading Commission v. Chicago Board of Trade, 701

F.2d 653, 656-57 (7th Cir. 1983); Note, Collateral Estoppel

Effects of Judgments Vacated Pursuant to Settlement, 1987

U. ILL. L. REV. 731, 745-49.

One of the reasons for vacating the lower court’s

decision when the case becomes moot during the appeal

process is to ensure that a decision, of which the losing

party, the Estate of Jack Gilpin, was denied appellate

review because of happenstance and the unilateral action

of the winning party below, will not have a preclusive

effect in subsequent litigation. The Court also vacates

lower court decisions that subsequently become moot

because such interim findings lack the stamp of reliability

that comes from surviving appellate review. /d. Both

reasons are applicable herein.

a

CONCLUSION

For the foregoing reasons, it is therefore respectfully

submitted that the Court should grant the petition for writ

of certiorari, vacate the judgment and opinion of the court

of appeals, and remand with instructions to dismiss the

cause as moot. United States v. Munsingwear, Inc., 340

U.S. 36, 39-40 (1950).

Respectfully submitted,

MILTON L. CHAPPELL, ESQUIRE

c/o National Right to Work

Legal Defense Foundation, Inc.

~ 8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

Altomey for Petitioner,

Estate of Jack Gilpin

August 21, 1989

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