Petition for A Writ of Certiorari — Booth v. Lemont Manufacturing Corp.

}ograr: ARYyY . No. °

& : ak f U. S. , se

Bas ; ; ? | In, the

Supreme Court af the Wuited States

‘OcroBeR TERM, 1971

_ HARRY R. BOOTH, | ———

ices ans a 3 Petitioner,

VS.

LEMONT MFG. CORP., CECO STEEL PRODUCTS CORP.,

PUBLICKER CHEMICAL CORPORATION, AMERICAN OIL

CO., UNION TANK CAR CO., CORN PRODUCTS CO., METRO-

POLITAN SANITARY DISTRICT OF GREATER CHICAGO,

Respondents. :

PETITION FOR WRIT OF CERTIORARI TO THE a

UNITED STATES COURT OF APPEALS FOR THE |

; SEVENTH CIRCUIT .

HARRY R. BOOTH

. ad | 110 S. Dearborn Street

Chicago, Illinois 60603

Petitioner pro se’

- UNITED STATES LAW: PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX.

Opinions below setsnioeitiinieds sinc sacs Eulcomsiemenne vane ©

Jurisdiction Staats Perot “2

Statement of grounds upon which this Court’ S: , jurisdie-

tion is founded. ...................... Se dicen Ase nee recneaelr ae

Statutes and Constitutional Provisions. ........-........ =

Questions Presented hor ee i eee Oe

Statement |X ae EP a

Reasons for Granting ‘Writ

A major | reason for granting this Petition is that

the opinion of the Court of Appeals is predicated upen

_ the assumption that there have been no developments

in the fields of due process, equal protection of the

laws, public actiow’s and federal jurisdiction as a re-

sult of decisions of this Court during the past 60 years,.

other than’ Angel v. Bullington, 330 U.S. 183 (1947)

and Skelly Oil v. Phillips Pet. Cg., 339 U.S. 667 (1950).

Neither it or the District Court displayed proper ¢on-

sideration or regard for the decisions of this Court;

_and the separate issues decided by them are, as argued

below, in conflict with this Court’s decisions - and

principles. The errors were compounded when_ it

sanctioned a District Court judgment, based on co

clusions ‘illustrated by a finding it would’not hold an

Illinois law in violation of equal protection rights as

it assimed contr ary to plain legal history this would.

force state courts to entertain remote taxpayer suits.

The District’s 1,000,000 taxpayers have been unjustly

denied the ‘benefits’ of constitutional principles ap-

‘plied by this Court in the past 35 years. All this and

- more demand the exercise of this Court’s supervision

and the granting of this Petition 200 0.... pate |

a rede —— - PAGE

I.- Due Process »And This Court’s* Supervisory.

Powers Require Review Of Judge. Kerner’s

Duty To Disqualify Himself, Biiiacnbnoaieasete Bocce 11

I. Due Process And Equal Pr otection Issues Were

Decided In Confliet With This Court’s Control :

ling Decisions _............ ba Seats aeelciakints-caienep atacrdapais 15

A. The Special injury Rule Offended . the

“Equal Protection CM ae

iB. The Special Injury Rule Denied Petition-

; er’s Class Due Process Procedural Rights . AG

“C.: The Issue Whether Equal Pisteakion and.

Due Process Rights are W ithin 28 USC

1343(3) Requires. sentecn nig he ON 17

Ill. The Intervening Change In Sinein. Law Re-

quired Reversal And Remand ........... SI EY

IV. The Ruling Petitioner Was Estopped From

' Presenting Constitutional Issues Is In’ Conflict

With This Court’s Controlling Prineiples .......... 22

VY. The Nature Of The Interest. In Publie Property’

Converted Into Private epapexty By Corporate

Lessees Requires- NINE ann eae 24

VI. Petitioner’s Claim Was Founded On A Tradi-.-.

tional Joint And Common Claim SRROTOASE. Slee OTN 26

VII. The Importance Of The Case OER MOS Sere:

Conclusion ........... ___ SURE pI OnT MOPED BOLE : 28

Exhibit I. .

Statutes on 4 3 ;

28 U.S.C. 1254(1) ISS aes UN tee Aiea dance ene 29

Rien. eee. ae - 29

Use eee oe ee

a °

INE PIGS Ss =. Pe en 2

Rees

a can :

AUTHORITIES CITED

ne Gases

eae PAGE

Angel v. Bullington, 330 US 188, 189, 190° (1947) ........ 23

Barbier V. Connolly, . 113 US: 28, 31 (1885) - 02... a i

Blackman et al v. Stone, 300 US 641 ec ccsese 20

Blonder v. Uni. Foundation, 28 L.Ed. 2d- 188, 800

arene Dinerinae oR anne qa aieruedl Souk: pa ee

Boddie v. Conn., 397 US 254, 267, 268 (1970) aches 17

"Booth v. Lemont Mfg. Corp. et al, 340 ¥.2 385 (CAT, 2

MTD wlari Medea si ead tas spots cass cen oes passim

Booth v. Lemont Mfg. Corp. et al, US, Dt.Ct. 304 F.

Supp.. 235 (1969) ae OAR AD, WORE

Booth v. Gen. Dynamies Corp. et al, 264 F. Supp. 465

RD newettinnectiacsrnicsainanisianhaccenssoiaisracdatincuiscidaly ty kay

‘ Booth v. Met Sari Dist et al, 79 Ill. App. 2d 310, 224 —

Ce gE REE nereae eames csnaieaie a , passim ;

Bordens Produets vBaldwin, 293 US 193, 210 (1984). i

- Bryan et al v. Austin, 254 US — ...,... adel are ee 21

Busse ’v. Long, 383 F.2d 766, 770 (1967 ) a Sacco, 19

‘Butler vt Eaton, 141 US 240, 242,.243 oo 20

Chambers v. Balt. RR Co., 207 US 142, 148 17

Cipriano v. Houma, 395 US 701, 704, 106 (1969) tuted 16518

‘Dierks v. Thompson, 414 F 2d at p. 456 ps “ean ated ee HG

Droste v. Kerner, 34 Ill. 24 495; 217 NE 2d 73, 79, 385

US 465 (1967) (App. 5 ape Pata eenaadies maembes 7 »8 passim ;

. iv

Duke Power Co. Vv. Greenwood, 299 US: 259, 267, 268... 20 ..

Risen v. Eastman, 421 F2d 509, 563 (1969): (CA, ode 19

A England v. Med.. Examiners, 375 U $ 411 (1964) . 7 ace 23

) :

First Natl Bank v. United Air: ines, 342 US 396, 397 .. 23°

Gendel et al v. North: Am Car Corp et al (Ci ‘t.

of Cook Cy) 69 CH 2770 i TELE. 21

18

17

17.

Gulf C&S RR Co. v. Ellis, 165 US 150, 155 (1897). ae 16°

Hague v. CIO, 307 US 496, 508 (1939) ceeenne ......18, 19

Harman v. Forsenius, 380. US 528,534 (1965). aes. 23

~ Heilig Bros. v. Kohler 76 Atl 2d 613, 616, 617 (Sup :

ef” pede SNR tlie estat ae OO 25°.

Herr v. Rudolph, 25 XW 2d.916, 921 No. Dak. Sup.Ct. .. 25 :

~” Hoffman v. Northwestern U., 69 CH 2714 (Cir. Ct of

EE Seccdlbigcintatioieaniocterenssct bi achcnieeeeengaonntnectecocecoe 13

Hornsby v. Allen, 326 F 2d 605 (1964) (CA 5). LL Oe 19

ICRR v. Olberding, 346. U S 338, : 214 F 2d ‘91, 92. 95 |

a Th Cie ok ¢ Coeur ee case 21

Johnson ¢. Harder, 488 Reet; 9, (CA 2) (1971) bad ies ie 18

Lassen v. Arizona, 385° U.S. 438, 468, 469 .............:...... 25

McGuire v. Sandler, 837 F 2d 902 (1964) (CA 5)... 19.

McLaughlin v: Florida, 379 US 184, 190, 191 (1964) . ak =o

nee

‘Mammouth Oil Co. v, U.S. 274 US 13 (1927) 2. 6

Mansell v. Saunders, 382 F 2d 573. (CA 5) (1967)... 19

Moran v. Dillingham; 174- US 152 (1899) ..... 14

In Re Murchison, 349 US 133, 135-137 (1955) ae

Owensboro Water Co. v. Owensboro 200 US 238 (1906) —

_Pan Am Oil Co. v: US, 273 US 456 (1927) eee Jon

“Paepeke v. P.B.C. et al, 46 Ill 2a 330, 341; 263 NE

RES ae he ----2.9, 19, 26

Phoenix v. Kolodziejski, 399 US 204, ‘210, 213 ieee 16

"Ex Parte Poresky, 290 US 30, 32 (1933)... 16

| P.U.C. v, Pollak, 343 US 451, 466, 467.22. a 15

"Ream v. Handley, 359 F 24 728, 731 (CA 7) (1966) . 18

Reford v. Brunswick, 228 US 339:(1913) ae

Snyder v. . Harris, 394 US 332 0c... wistcatgatccweaicnmne , OD

Swann v. Charlotte, Mech.Bd. of Kd, 321 F2d 135, 137

CRO 2 oiler aa,”

United Mine Workers v. Bibbs, 383 US 715, 726 ...... < 2

U. S. v. Minsingwear, Ine., 340 US 36, 39, 40 (1950) 20°

a v. Koota, 389 US 241 (1967) as hahieeteliiciaaiaail 23, 24

f ;

Other. Suiietpis

Report: of Joint Legislative Committee | mais 1 p=

to Investigaté Operations of a? eae

Metropolitan Sanitary Dist. of Greater Chicago,

General Findings,( March, April, 1963 at

Senate Resolution 22, 13¥d General Assembly, .

PONE pcsscnences cepeetanueheiatoh fovsvnereneeeneetnetnnege che 12

| |

Hi

Slit 8551 PRR IN MRS Wt 8 i AT Al AVS

yi |

| | ‘ + PAGE

75th’ General Assembly (App. 132)° at

Report of Joint Legislative Committee

to Investigate Operations of the

. Metropolitan Sanitary District of Greater a.

_ General AG Onesie Dctrgginnreecevenneeetneceezeeggenetonnet 12

76th General heey 1970, p. 63;

_ Report of Local Government: Services Subcom

of the Municipal Corporate Comm., Illinois

Senate; . The Metropolitan Sanitary Dist . of

Greater Chicago, Vol. II, .Facts‘SSummary and

Evaluation _ i om 12, 27

Report to the President of the United States and the

Congress by the Public Land Law Review Commis- |

sion: |

One Third ‘of the Nation’s Land’’, June, 1970 ...., 27

ve

ies a

_ Vii

APPENDIX

«

TABLE OF CONTENTS

— PAGE [

Opinion of the Court of Appeals in Booth v. Lemont,

* et al 440 F 2d 385 January. Py REE. Ais cnclseecsvecataraecdarsss i: ‘

Judgment of Court of Appeals JSthuary a0, 1971......... Hy)

Order denying Petition for Rehedring and en bane,

(March By FOE ehtctiennusnauite deere ees, 6

Opinion of Judge Edwin. A. Robson, 304 F Supp. 235 7

Opiniongof Judge Hubert L, Will in Booth v. General

Dynamics Corp. et al, 264 F. Supp I in Shecicecasecnaecs 10

Unreported Opinion of Judge Will, ee 6, 1967, in

III sana ssasacianonelamonsamankpiongs insadssbansenaagieconpaienes cues cosas: ae

“same. kaafaestbeendibd bana inn nrentnen odsisinas abaaneiabdsabalmsiacobbisaneub niece 21

Opinion of Court of Appeals in re General Dynamics

Corp., Original | 16456 February 7, 1968 200000... 23

Opinion of the Ill. Appellate,Court in Booth v. Metro-

_ politan Sanitary District et al 9 Ill. App. 2d 310,

224 NE 2d 591 (1967) ake Sohiied sla ions anointed a aaah 24.

Judgment of Circuit Court iti Booth v. Sanitary Dis-

trict et al, 63022180 June 18, 1964 Pe Pap Aa SPO I SL ore

Excerpt ‘from Droste v. Kerner 217 NE 2d 73, 77-79

mele Supreme Court . 1966) Katasidaneahaddseds in: pidanaoeases 33

Excerpt from Paepcke v. P.B.C. et al 263 ae 2d 11, 18

(Ill. Supreme Court Scie NT TAD Bes ete Res 36

die SABRE TEMA IAT A AE

viii

° _ PAGE

Droste v. Kerner 3885 US-486 Motion ed Governor

RUE OED CR TION anes acescicrctticietrrin 37

; Petition of Appellant Booth for Rehearing and Hear-

ing en banc Court of Appeals |... eee 50°

Summary of Financiat Aspects of Defendants Leases 63

eet Illinois Senate Resolution No. 22 (1963) Re-Investi-

- gation of Metropolitan Sanitary District of Greater,

CHICAGO nana annnyanengeteeesennnnnnneneger Boi at RE . 69

Excerpt 75TH General Assembly Joint Legislative Re-

~ port Investigation of same Sanitary District (1967) ‘66

Report of. 76TH General Assembly (1970) Municipal

Corporations: Committee Re- Sanitary District In-

' vestigation Excerpts SONS vaplbitudueafandanenttcadsapiackiacachaesnanss 67

, 9

Summary of State Court Decisions of U pholding Com-

- mon Law ‘Right of Taxpayers to Sue to Review Sales

and Leases of Public Property. ......002..020.0020200.000.c:0000-- 69

Iu a:

‘Supreme Court af the United States

Octoser Term, 1971

-No.

HARRY R. BOOTH,

VS.

LEMONT MFG. CORP., CECO STEEL PRODUCTS CORP.,

’ PUBLICKER CHEMICAL CORPORATION, AMERICAN OIL

CO., UNION TANK CAR CO., CORN PRODUCTS CO., METRO-

POLITAN SANITARY DISTRICT OF GREATER CHICAGO,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Now ‘Comes Harry R. Booth, Petitioner, pro se, and

respectfully prays that a Writ of Certiorari issue to re--

view the final judgments of the Court of Appeals for the

_ Seventh. Circuit in this cause.

OPINIONS BELOW

The decision of ‘the Court of Appeals sssreported in 440

F, 2d 385, and the District Court in 304 F. Supp. 235.

Petitioner,

—_

.

PAB RN I SEA OR ey

2

The opinions are included in the separate Appendix’ to

this Petition as is the opinion of Judge Hubert L. Will

in the companion case of Booth v. General Dynamics Corp. .

et al., 264 F. Supp. 465, his two unreported opinions ar the

ruling of the Court of Appeals in the In Re General Dy-

namics Original February 7, 1968 (App. 23). The Appen-

dix also includes directly related state court rulings and

documents. An index to them is found in this Petition and

Appendix. ~ ——————

| rear “oRispIcTION.

The jurisdiction ot this Court is founded upon 28 USC

See. 1254(1). They are included as Exhibits herein.

——_

¢

STATEMENT OF GROUNDS UPON WHICH THIS

COURT’S JURISDICTION IS FOUNDED

1. The Court departed from accepted and usual course -

of judicial proceedings: requiring the. exercise of. this

Court’s supervisory powers since Judge Kerner was. re-

quired by considerations of due proeess to withdraw from

this case.

2. The conflict between this Court’s decisions and the

judgment below that state dénial of procedural dué process

and equal protection are not personal rights. conferring

jurisdiction ynder 28 U.S.C. (1343)(3) require reversal,

or in the alternative this Court should settle conflicts on this

‘vital issue between that Court and other Courts of Appeal.

3. It failed to xeverse and remand for trial in view of -

the intervening change in Illinois law.

' Reference to this Appendix are (App.), to-Court of Appeals

Appendix (C’A. App:), and to Supp: to C.A. Appendix (Supp..

CA.). Abstract in Booth,v. San. Dist. et al., 79 Ill. App. 2d 310;

224 NE 2d 591. Both are filed here as part of Court of Appeals

Record. ° re

—_———

=

4. The judgment below decided | impottant other fed-

eral questions in conflict with applicable decisions of this

Court, for:

a. Having assumed the Illinois special injury rule |

violated the equal protection clause, tlie Court was

under a duty to decide this issue.

ae erroneously held plaintiff was estopped from

asserting constitutional rights and disregarded prin-

ciples of abstention and‘equitable factors. :

c. It gave effect to state court judgments though

plaintiff had challen nged them as a’ fraud and Judge

Will held such issue required a hearing. °

do. It failed to find plaintiff’ s action was ‘predicated

upon a traditional joint and common claim.

6. It disregarded earlier rulings in the General Dy-

namics’ Companion Case by the Court of Appeals hold-

ing in effect Plaintiff’s constitutional claims were so sub-

stantial as to require a hearing on the merits, and Judge

Will’s decision upholding federal jurisdiction.

7. It erred in finding plaintiff could not raise constitu-

tional issues for they constituted an anticipation of. the

defense contemplated by defendants.

8. It was bound to remand the case to the District Court:

for trial-and for reassignment to Judge Will as a related

case to General Dynamics.’

STATUTES AND CONSTITUTIONAL PROVISIONS

The Constitutional Provisions and statutes relied upon >

are: 28 USC 13381, 1343(3); Art. TIT, See. 2 and Amend-

ment XIV, See. 1. The statutes are reproduced p. 29.

Hic ARTA ESO Se ae r .

_——~*———s»éEUESTIONS PRESENTED

Was J udge Nerner under a duty to wieteew from

ne case |

2. Did the denial by the Illinois courts of plaintiff’s

right to institute-a public action to enforce public rights in

land leased to the. corporate defendants confer jurisdic-

tion under 28 USC 1331 or 1343(3) based on his equal

protection and die process procedural and substantive

claims?

3. Does ‘the intervening 1970 change in the Illinois spe-

cial injury rule require reversal of both judgments be-

low under the orinciple of partial mootness?

4. .Dii the Cour: err in, holding Plaintiff was barred

by estoppel from presenting his equal protection claim?

5. Did jurisdictio ni nevertheless vest, since the Appeals

Court dia not eppis estoppel to procedural due process

¢laims?

, ‘

6. Was the Court re-juired to consider the principles

of abstention and equitable estoppel? |

7. Was it required.to consider Judge Will’s ruling a

hearing was necessary on plaintiff’s challenge that the

State Court judgn« nt way a fraud?

8. Was Plaintifi’s action predicated upon a traditional

. joint and common ¢liim permitting aggregation of claims

within Ruie 232?)

é

9. Did the Court err in holding that Plaintiff could

have been barred from presenting his constitutional claims

as it thought he vss anticipating an unconstitutional de-

fense? oe '

10. W-re the iement and General Dynamics cases re- -

‘lated actions so as tv require reassignment of the Lemont

Case to Judge Will?

4

STATEMENT OF THE CASE

This suit, called Lemont, is the second federal action’

instituted by plaintiff as a result of rulings of the Illinois

courts’ dismissing his prior class public action on the

principle that only taxpayers suffering private injury pos-

sess standing to enforce equitable interests in public prop-

erty held in trust. His state complaint as amended, in: ©

five counts, challenged the validity of some 25 of ‘the Dis-

trict’s long term (50-99 years) leases ef land adjoining

its navigable waterways, improved by Jarge federal and

District expenditures, the .retroactive recovery of inade- |

quate rentals, a declaratory judgment, judgments against

officers of the Distri¢t and other relief set forth in his ex-

tensive: pleadings.’ as

The corporate defendants are large industrial eorpora-'

tions, interstate and national in character, similar in na-

ture to numerous other District lessees. The District as

of 1963 had executed leases of about 2400 acres for indus- .

trial and other commereial purposes. These defendants

Sf

‘1 Lemont was filed’ on Nov. 20, 1968, but the pleading; at issue

was an Amended Complaint (C:A.. App. 1-43). The first federal

suit. Booth v. General Dynamics Corp. (Called G. D. suit) was filed

April 14, 1966. Judge Hubert L. Will upheld jurisdiction Jan. 24,

1967—264_ F. Supp. 465 (App. 10-17). Court of Appeals on Feb.

7, 1968 denied G. D. Writ of Mandamus. (App. 23).

* Booth v. Met. San. Dist. et al., filed October 24, 1963. Opinion -

of Appellate Court, 79 Ill. App. 2d 310; 224 NE 2nd 591 (App.

24-29). Controlled in. part by Droste v. Kerner, 34 Ill. 2d 495, @)7

NE 2d 73, 79 (App. 33-35) 385 US 456 (1967).

3A brief summary of the pleadings is difficult. The state court

complaint and exhibits exceeded 100 pages (See Supp. abstract of

record to Appellate Court record included in Court of Appeals

~ record filed here). (1 -77, 86-102 Exhibits 41). The Lemont Com-

plaint was 43 pages. ;

# 2 e . .

possessed eight leases of which five were. for terms of 99

years expiring about the period 2040 to 2050 and three’

/were for shorter terms (App. -G3-64).'| One defendant,

Lemont, built a steel plant. at a cost of $14 million on the

88 acres it acquired from the District under questionable

cireumstanees. It has been paying annual rent of $2,682;

under the terms of its so-called leases it would be no more

than $4700 per year until after year 2000, (See App. 63

64) (See -C. A, App. 12-15, 57). Another’ lessee, an

Products, was permitted for 99 years to use millions of

gallons of water datly though its annual rental for 14.2

acres for more than 90 years did not exceed $2100 per year

(CLA. App. 17, 18). 7

Considering the valuable public land at stake and the

wrongful acts by defendant -corporate lessees in aequiring

it, these suits are generally comparable in major respects

> the Te — Dome. litigants.’ (Mammoth. Oil Co. v.

= S.,.275 U.S. 13 (1927); Pan American Oil Co. v. U.S.,

273 US, 40 6 (1927).

The pleadings in ‘the f federal actions were generally re-

lated first to federal jurisdiction and second, specific alle-

gations to the operations of the District, its overall as-

peets ‘of its long term lease trans actions, specific details

bearing upon leases of corporate defendants, equitable in-

“HAH Corp. was also a defendant in the courts below. Though.

the Court of Appeals denied its prayer for damages and other costs

in an amount in excess of $20,000 against plaintiff, the risks inci-

dental thereto reqaiired him to drop HKH as a-respondent.

J

*See Appendix (63-64 and 65-68) Excerpts II]. Leg. Reports

and New Republic. July 3, 1965, p. 915. Chicago—The Low Rent

‘District. Demaris-—Captive (itv--Lvle Stuart Ine. (1969). (See

fn. 1, p. 12.)- -

ee i ° is a8 “ , oo

ey = |

i e

7

terests’ of plaintiffs, related conclusions claiming fraud

and prayers for relief. The Lemont. Complaint. in Count

Il (C.A.. App. 36-42), included «a motion for a declaratory

_ judgment based upon allegations that the defendant leases

and. numerous’ others were void on their face i in that they

were exectited without competitive bidding, lacked provi-.

v sions during their 99 year terms or otherwise for periodic

j _.refletermination of rentals and other clauses indispensable

toa proper public trustee- private corporation relationship.

His jurisdictional allegations claiming the special in-

jury rule violated the due process and equal protection

clauses were specific and in detail (C.A. App. 5,6). He ~

also alleged that it discriminated agaiztst the poor who

~ owned no real estate and’ in favor of wealthy citizens, ar

large private corporations; who, if any, could claim —— |

injury. (CLA, App. 43)

On June 18, 1964 the state court sustained defendant’s

motions to dismiss plaintiff?s action finding ‘‘plaintiff does

not have legal capacity to bring this action and that the

complaint. is multifarious’’. (App. 30-32%, The Judge had

earlier denied plaintiff's motion he withdraw on the ground

his son was a partner in the law firm representing Ameri-_

ean Oil Company, a major defendant.

-

‘This judgment was affirmed by the Appellate Court!

primarily on the standing issue. It also upheld the Chan-

eellors refusal to withdraw and denied plaintiff’s motion

to amend his pleading to demonstrate the existence of

fraud by intervening facts. While pending on appeal, ‘the

» Illinois Supreme Court, after two rehearings, confirmed its

}

179 Iii. App. 2nd 310, 224 N.E. 2nd 591 (App. 33-35). Con-’

trolled in part by Droste v. Kerner, 34 Ill. 2nd 495, 217 N.E: 2nd

73, 79 (1966) (App. 33+ i 385 U.S. 456 3 (1967).

—

8

earlier decisions upholding the same special injury rule. -

Droste'v. Kerner, 217 N.E. 2nd 73, 79 (March 24, 1966).

(App. 33-35) |

‘Faced with thie hopelessness of relief in the state courts .

plaintilf filed his first federal action.in April, 1966, against

General Dynamics Corp. called G.D.* Pe he

Juilge Will upheld federal jurisdiction declaring the Dis-

trict taxpayers though. denied a remedy in the Illinois

courts possess equitable property interests supporting fed-

eral jurisdiction under. 28 U.S. 1331 and Article III (264 F. ”

Supp. at pp. 463, 473),. qualified his rejection of plaintiff’s

argument the special inquiry rule violated his equal pro-

tection rights; (pp. 468, 469, App. 13; 14)

Later G. D. sought a Writ of Mandamus’in the Court of

:\ppeals to conipel Judge Will to expunge his jurisdictional

ruling or in the alternative to certify the jurisdictional and

‘Rule 23 issues for immediate review under 1292 (b). The

- Court ‘on Feb. 7, 1968, denied G. D.’s Petition though it

held the questions raised by G. D. were substantial but.’

could be presented upon final. appeal. (App. 23)

On April 13, 1969. the G. D. case was settled following

extensive negotiatiqns, a public hearing,. approval by the

District, plaintiff, General Dynamics and District - Judge

Will.’ Plaintiff believed the jurisdictional issue had been

determined in this District Court. An-urgent need required

the institution of an action against a number of District

lessees helding 99 year Itases which. could not: ‘be pressed:

if plaintiff was compelled to undergo the, expensive and

time consuming G..D. trial. 4

1He had not’ pleaded this rule was in conflict with the equal

protection clause. ma. =

<»

“Ne

2

S.: : ~

7

By his Lémont amended complaint. he hoped to solve its

complex problems involving numerous slong term lease

transactions through his request for a°declaratory judg-

~ment. Its basis Was that defendants and other leases were

void on their face and contrary to public policy i in that they

were. executed without competitive bidding, provisions: for

periodic redetermination of rentals, and other indispénsa- :

ble public safeguards. : :

.The corporate defendants ai filed motions to dismiss

generally upheld by the Courts below (C.A. App. 53-68).

These included (1) Absqnce of substantial federal question.

(2) Controversy does not exceed $10,000 and aggregation .

of claims improper. (3) State judgment res judicata. (4)

_ Laches and other defenses. The Distriet filed a, detailed.

‘answer generally admitting plaintiff? Ss specific allegations . -

except those alleging fraud and also joining in the relief

prayed for by the defendant. (C.A. App. 70-92). Judge

Robson sustained the motions. of the several defendants -

to dismiss. 304 F. Supp. 265 (App. 7-9). He upheld the

special injury rule and stated that if it. were declared .

‘unconstitutional state*courts would be forced to enter-

tain _the most remote taxpayer’ s complaints without

limitation. "1 (at p. 267) ss

After the main briefs had been filed, the Illinois Supreme

Court repudiated both the special injury rule and its —

'- prior decision i in Droste v. Kerner upholding it.” The par-

ties then presented conflicting views as to its impact on

the case, The basen claimed it sustained their right.

1 See (App. 69.72) for sucinagy of decisions in. 15 States dis-

agreeing with Judge Robson and upholding standing ‘taxpayers to

sue to set aside alleged fraudulent or otherwise~sales er leases of

‘public property. Defendants did not produce contrary such decisions.

2 Paepeke v. P. B. C. et al., 46 Il. 2nd 341, 263 N.E. 2nd 11, 18 ©

(Sept. 1970) (App. 36). ;

‘

Loon ACRES RF AIA IE eee eee

siges " * e - ™

“10

to all the relief demanded in their main brief including a_

holding the, state judgment Was res judieata against all

District taxpayer sults, (Dfs. _ Rejoinder.) | ;

On November 9, 1970 plaintiff filed an emergeney mo-

tion to reverse the judgment below and to remand with

directions. He contended the controversy between his class:

and defendants’ was a continuing one. (CLA.°Reeord) Te

also ‘requested ‘a hearing en bane and other relief. The

motion was overruled with reservation to reconsider such

mM : ae. a. mye

questions. Following the Court’s judgment on January

28. 197L Petitioner filed a petition for rehearing and hear-

ing en bane (App. 50-62), whiely was denied on Mareh 29,

1971 (App. 6). On June 20, 1971 Justice Marshall extended

the time of filing his Petition until August 12, 1971.

A request for a further extension of time hi ius been filed

with the Court. ane

11

REASONS FOR GRANTING WRIT

ee

~ ,

8 a

DUE PROCESS AND THIS COURT’S SUPERVISORY |

POWERS REQUIRES REVIEW OF JUDGE KERN-

ER’S DUTY TO DISQUALIFY HIMSELF.

~ Between 1963 and 1967 while Plaintiff’s suits were pend-

ing in the Illinois and Federal Courts, Judge Kerner, as

Governor and defendant not only was a direct participant

in state and federal issues in the Droste case (217 N.K.2d

73, 79 (1966), 885 U.S. 486 (1967), but also argued in this:

on ‘ourt in support of principles corporate deféndants here

contended’ were decisive to Plaintiff’s case before the.

Court of Appeals which he appr oved in his opinion.

Judge Kerner’s* ‘failure to disqualify himself appears to

demonstrate an insensitiveness to the constitutional. prin-

~ ciple that due process demands not merely ‘‘absence of .

actual bias’” but that ‘‘our system of laws has always

endeavored to prevent even the probability of unfairness.’’

(In re Murchison, 349 U.S. 133, 136). ‘*Cireumstances“and

relationships must be. considered for the disqualifying in-

terest-cannot be defined with precision,’’ but ‘‘ Justice must

satisfy the appearance of justice.’’ (p, 136). As Peti-

tioner’s charges are of a serious nature, more than a rou-

’. tine reference to the relevant cy and relation-

ships ”” are. necessary.

1 Brief of Composite Defendants (C:A. p. 24, 23). Motion to

dismiss (App. 37-49).

* Petitioner regrets any criticism of Judge Otto Kerner which may

‘be implied from this petition particularly in view of his prior associa- -

tion with the earlier Circuit Judge Otto a rner when Attorney Gen-

eral of Illinois (See Nat. Pipeline Co. Slattery, 302 US 300:

People’s Gas Lt. and Coke Co. Vv. as 373 Ill. 31; 25 NE

2d 482 ; 287 Ill. App. 379; 5 NE2d 285; see also iss nis Gas Co. Vv.

aa, 809 US 634. :; k

. coh Same ane.

0 ee

In his opinion (p. 386 and fn 2), Judge Kerner relied

upon Droste v. Kerner for ‘the judicially created Ilinois

special injury rule’? as barring plaintiff from prosecuting

his ae Una f action in the I[linois courts against the les-

sees of the District Droste then appealéd to this Court. In

the. Motion to Dismiss filed by the Illinois Attorney General

upon behalf of Governor Kerner-and another state officer,

it was said they moved to dismiss this appeal on the

grounds that it does not ‘‘present a substantial federal

question, and that appellant lacks the requisite standing: to

support this appeal.’’ (p. 1) (App. 37).

~The Index said, “I. B. Appellant’s contentions of a

denial of due process of law and equal-protection of the.

law raise no substantial federal question.’’ (App. 38).

Lessee-defendants in their composite brief, argued: ‘The

validity of the Illinois special injury rule has been sus-

tained hy this Court,’’ and that it likewise decided no sub-

stantial federal question was present in both cases: (CLA.

Br., pp. 24, 25). Q

Judge Kerner’s participation as Governor and as‘a de-

fendant in Droste was not nominal in nature. He approved

the statut¢ transferring the disputed land to US. Steel,

was surely aware of the extensive controversy’ over the

‘! Discussion of the District affairs as a whole brought the Chicago

Tribuie a Pulitzer Prize in 1962 (See p. 3, May 8, 1962). A spe-

cial Citizens Committee selected a new, District General Superin-

tendent, a Grand Jury ‘inquiry indicted two District officials in, con-

nection with certain leases, a‘special legislative committee conducted

a number of hearings in March and Aprif, 19603 (Senate Resolution

. 22, 73rd General Assembly C.A. App. 132, 75th General Assembly

Report of Joint Legislative Committee to Investighte Operations of =

--the Metropolitan Sanitary Distriet of Greater Chicago General Find-

ings, p. 3, 5 (See App. pp. 65-67). .

Orie 2 , ut ARES LBDTE ALSO ANL OED ——

13

District operations and leases. ‘The widespread demands:

for reform of the overall District operations oecurred dur-

ing his term as Governor /(1963- 1968). He must have .

known of the State Legislative investigations into the af-

fairs of the District between 1963 and: 1967. The proposals

for. drastic reorganization of the District’ s operations in-

cluded new standafds and restrictions governing the execu-

tion of future: long term leases. He. surely knew these

statutes could not be made retroactive.

Government officers or agencies defendants in public ac-

tion litigation do not necessarily give 100% support‘ to

corporate defendants seeking to defeat the publie interest.

In this very series of suits the Sanitary District originally

did in the state action support the position of corporate

defendants.- Here, , however, it filed: an Answer admitting

nearly all plaintifi’s ions {except direct charges of

fraud) and supported plaintiff’s prayer for relief.’ Peti-

tioner objects not to the defense of the state’s erant to

U. S. Steel, but to the acts of the Governor in joining to

oppose the standing of its citizens to sue-and to assert the

absence of federal questions in this Court. -

The responsibility for withdrawal from this case reste d

squarely upon Judge Kerner himself. The acceptance of

this principle by’ other members of the Court is revealed

by the action of Judge Wilbur F. Pell, Jr. when on the

morning of the oral argument he excused himself. Unlike

rases before the District Court, litigants are not aware of

the composition of the Courtof Appeals panel-hearing an

appeal until the day set for argument. Under 28 USC

1 Hoffman v. Northwestern Uniersity et al., 69 CH 2714, Circuit |

Court of Cook County, is a ‘suit challenging -non:payment of real

estate taxes by lessees of educational institutions. .The ‘public official

defendants have recently -filed a counter-claim es the relief

acemrss prayed. for. - -

ERDAS ALIP PIED LY LES VIPER: Ti NILE «Ma PEE

14

,

, 144 failure of litigants to object does not excuse failure —

of a’ Judge to take the initiative to withdraw. Reford v.

Brunswick, 228 U.S. 339 (1918); and Moran v. Dillingham,

174 U.S. 153 (1899). A recent application by Circuit: Judge

‘Craven to this statute stressed both the: similarity of the

issues and the identical nature of the earlier case.' The

same principle is equally applicable to this ease.

In his Petition for Rehearing, Plaintiff said:

- ““The Opinion is also without a statement that the

position advanced by or on behalf of Judge Otto —

Kerner as Governor of the State of Illinois in Droste

v. Kerner, 34 Ill. 2d 495, the important part it played

in the claims of the defendants, and the ruling of

Judge Robson (regardless of the subsequent Paepeke

Opinion) did not conflict with the rights of plaintiff’s

class of one mission taxpayers to a due process hearing

within In*Re Murchison, 349 U.S. 135, 137 and other

. related expressions by the federal Courts. ’? (App. 53).

_ The Court denied this request. However, Judge Kerner

recently publicly, stated that he avoids hearing cases pre- |

senting ethical issues when he w as quoted in the Chicago

Today newspaper on July 29, emiiny as saying:

Kerner explained that he av oids court cases which

raise ethical questions. |

‘‘T make quite: certain to disqualify’ myself in any

ease wliere I either had an interest in as governor,

such as an executive clemency vase, or where I have a

stock in a corporation that is before the Court.”

It would have been equally appropriate for him to have

igsued the formal statement suggested by. Plaintiff. The

_ desirability of this practice was indicated by the statement

of Judge Craven in the Swann ‘case (4381 F. ed 135, 137.

tee

1 Se

4) (1970).

. Bd. of Ed., 431 F.2d 135, 137 (CA

i

1d.

In P. U. C. v. Pollak, 343 US. 451, 466, 467, brustice

Frankfurter said:

‘‘When there is ground for believing that such un-

-conscious feclings may operate in the ultimate. judg-

ment or may not unfairly lead others .to believe they

are operating, judges excuse themselves. They do not

sit in judgment. They do this for a variety of reasons.

The guiding consideration is that the administration

of justice should reasonably appear to be disinterested

_ as well as be so in fact.’’ .

This is indeed a case for the exercise of the supervisory

power of this Court. . iets ?

II.

DUE PROCESS AND EQUAL PROTECTION ISSUES

WERE DECIDED. IN CONFLICT WITH THIS

COURT’S CONTROLLING DECISIONS.

A. The Special Injury Rule Offended the Equal Protec-

tion Clause. °

The Illinois special injury rule required of Illinois tax-

: ‘payers and citizens to allege and prove special or private

_ Injury as a condition to their right’ to file a publie action

secking to wpe their equitable interest in — prop- .

erty held in trust: °

Plaintiff alleged the spevial injury ae assured judicial

remedies only ‘‘to a theoretical or substantially nonexistent

élass’’ (Par. 8a, C.A. App. 5), created an unreasonable and

illogical classification without regard to the nature of the

remedy ‘needed to safeguard the rights of the public, dis-

criminated against all or more than 99.9% of the District’s

. taxpayers (Par. 8b and 8c, C. A. App. 5), and arbitrarily

: discriminated against the poor who owned no real estate

and in favor of a limited class. of’ wealthy citizens or ¢or-

porations oe for profit, (C.A. App. 43).

?

”

- DPR eo,

e.

Reece Pac SERRA ts tee _—

16

These allegations required the Courts below to hold the

Illinois law to be invidious, that it served no publie pur-

pose, arbitrary and void under principles long upheld-by

this Court. (Gulf C. ue S, RR, Co. v. Ellis, 165 U.S. 150,

155; Mehaughlin v. Florida, 379 U.S. 184, 190, 191; Cipri-

ano v. Houma, 23 L.. Kd 2d 647, 650;’Phoenix v. Kolodziej-

ski, 399 US. 204, 270, 213). |

' Petitiongr pleaded and argued bis jurisdictional claims

before both Cour: entirely upon the denial of equal pro-'

tection and due provess.'’ The facts pleaded by him were

not accepted as true -ontrary to Bordens Products v. Bald-

win; 293 US. 192. <.9; Ex Parte Poresky, 290 U.S; 30, 32.

B. The Specia’ taieiey Rule Denied Petitioner’s Class

_Due- Process, Procedvral Rights.

The Court overicn ed “Plaintiff's basie clafm that the

Illinois special injury tile denied. Illinois taxpayers pro-

eedural due process. Llinois\ taxpayers were denied an

opportunity to Le heard in the Illinois courts under Droste

“vy, Kerner ana the decisions in P laintiff’s state court iction.

In Barbier v. Cornally, 113. U.S, 28, 31 (1885), this Court -

declared the rj’! to access to the courts is within the due

process and equal protection clauses: of the 14th Amend-

ment. Procedural Gace process is foremost among the vital

» guarantees of the Bill of Rights. Surely-it is equal to ‘the

right .to vote, in iscal elections.

“The fundani tal yequisite of due process of law:

is the opport dite to be heard.’’ Grannis « ‘Ordean,

‘He argued his first “claim of federal jurisdiction is predicated

upon separate claims .of denial of (1) equal protection, (2) pro-

cedurat and (3) sutstanive due process rights “under 28 USC

1331, 1343(3), Article UL, Sec. 2 and Amendment XTV, Sec. 1

(page 15, see also Main “3rief, 16, 17, 18-34, 36, 37, 55).

- e

<A UOD Heys ne > tas ERED nS GG. ote

17

234 U.S. 385, 394; Chambers ¥. Baltimore R.R. Co.

207 U.S. 142, 148. ’

This principle was reaffirmed by this Court in Boddic v.

Conn., 28 L, Ed 2d 113, 117 ff. See also Goldberg v. Kelly,

397 U. S. 254, 267, 268.

J udge Will correctly held the taxpayers equitable inter-.

ests in public’ property were-based on their ownership of

. such property. This .is the generally long accepted com-

mon law rule among the states. A suit to enforce such

rights presents a case or controversy within Article III

of the Constitution, 264 F. Supp. 465, 469-472.

Since Petitioner and his class possessed rights in prop-

erty w hich they were denied. the right to protect by access

to the Illinois Courts, this Court should grant this peti-

tion and hold that they were denied procedural due process,

reverse the judgment of the Court of Appeals with in-

structions that it set aside the judgment of Judge Robson.

C. The Ruling That Equal Protection And Due Process

Rights Are Not Within 28 USC 1343(3) Is In Con-: °

flict With This Court’s Decisions.

The Illinois special injury rule w hich excluded 99 percent.

or more of its taxpayers from access to the Illinois courts.

is in direct conflict with the 14th Amendment principles

long upheld by this Court. No bar exists to the claim of.

jurisdiction under 1342(3) because a jurisdictional claim,

firmly as this grounded upon due process and equal pro- '

tection clauses, also seeks to safeguard and protect public

_ property rights.

In Cipriano v. Houna, 395 U.S. 701, 702 ff, non- -proper ty’

owners were prohibited by Lodinlena law from voting /on |

$10 million of municipally owned revenue bord issue.. this \

Court considered as significant the economie interest’ of? |"

Se

° - . . . ° e 7

non-property owners in the municipal plant. It set aside

the statute as im violation of the equal protection cl:

No issue of aggregation of claims was considered. &7p-

‘riano was an exclusively local contest involving the right.

to vote to protect a public economic interest.

Here, however, plaintiff’s class’ of 1,000,000 were denied

access to the Illinois courts under an unconstitutional Illi-

nois law. We, as the Cipriano citizens, were entitled to a

remedy .in the federal courts under 28 USC 1343(3). The

Court of Appeals in disregarding this Court’s decisions .

during the past 20 years committed such a grave error as .

to require review by this Court to safeguard our personal

rights of due process and eyual protection.

Ream v. Handley, 359 F.2d 728, 731, relied upon in the. .

Court’s opinion, holds 1343 does not apply ‘‘where a per- _

son seeks oaly to pr otect property or monetary rights.’’

It was improperly expanded, and without precedent, to

include oe due process and equal protection claims.

_A second reason-for review of tlie issue of property ver:

sus personal rights arising since Hague v. CIQ, 307 U.S.

496, 508 ff, is the concern of other federaf courts. il-

lustrated by decisions in the Second and Fifth, Cireuits..

In Gold v. Lomenzo, 425 F.2d 959 (1970) (C. A. 2) Judge

- Friendly wrofe the majority view sustaining ‘jurisdietion-

under 1343(3) in a case where the plaintiff sought to en-

join the enforcement of a New York City .officer siispend-

ing his real estate license. Judge Hayes dissented.

In Johnson v. Harder, 438 F.2d 7, 9 (1971), the Court —

said: . Wi ‘s \

“In spite of the attempt of this Court in Eisen to elari-

fy the scope of iene 1343(3), the acres) continues.

to create difficulties.

/

(

“

19

And in Hisen vy. Eastman, 421 F.2d 509, 563 (1969), Judge

Friendly in an exhaustive review of the _persol al issues

stated: a

“There has been no thorough disctission by the Su-

preme Court of the scope of 28 USC 1343(3) since

Hague v. CIO, 307 UsS. 496 (1939). Apart from its age,

_Alague. casts an uncertain light because of the absence~

ofa majority opinion. ’’ eae a

The 5th Circuit has in several cases upheld federal juris-

diction under both 28 USC 1343(3) and 1331, though clear-

ly only property interests were involved or were certainly ~

_ predominant. Hornsby y v. Allen, 326 F.2d 605 (1964), dé-

nial of city liquor license; Mansell v. Saunders, 372 F.2d

0(3 (1967) garbage district license denied. See also Mc-

Guire v. Sandler, 337 F.2d 902 (1964). In Busse v. Long,

383 F.2d 766, 770 (1967), the Court refused to entertain

jurisdiction in a case involving a claim assessment of prop-

erty violated the 14th Amendment. It declined because it

believed plaintiff found an adequate remedy was av ailable |

under Louisiana law. In Lemont, Plaintiff’s class had no

remedy under Illinois law.

The Court of Appeals’ ahi on this highly signifi

_ cant issue of constitutional law will impair the preserva-

‘tion of vital constitutional rights. - Review of ois decision.

by this Court is required, oe

| — eee

THE INTERVENING CHANGE IN THE ILLINOIS

SPECIAL INJURY LAW REQUIRED REVERSAL.

In’ September; 1970, the Illinois - Supreme. Court in

Sia gd finally repudiated ci special injury ois including

ee yore P. B.C. et al., 46 N.E. 2d 330, 341, 267 N.E.2d

a 18 a 36).

ed >

its application in the Droste, v. Kerner case (App. 36).

Nevertheless, the Court of Appeals failed to either consider

or give effect to the decisions of ‘this Court that such a

' change. of law compelled it to reverse and vacate the judg-

ment below. The. change in the law rendered at best the ©

-ease only partially moot and the Court was bound to direct

-’ the District Court to enter such orders as will assure jus-

~- tice. Petitioner had filed an Emergency Motion on Novem-

ber 9, 1970, praying that the Distriet Gourt judgment be

reversed, that the ease be remanded to assure prompt trial

on the merits or such other orders as would advance the

interests of “justice in this case. Duke Power. Co. v. Green-

wood, 229 U.S. 259, 267, 268; U. S. v. Munsingwear, 340

US. 36, 39, 40. :

In his Emergeney “Motion Petitioner. argued that the

Paepcke Opinion, did not grant plaintiff’s class any of the

relief ‘that they sought, the contraversy over the validity

of defendants leases had not been adjudicated, defendants .

had not tendered to-plaintiff’s class any of the relief they

sought, there had been no state court action between thé |

parties for nearly four years, and the action could not be

- maintained in the state courts-for the state court judgment ;

affirmed by the Appellate Court had found such suit to be

"multifarious. Moreover th controversies between plaintiff

and his class were a continuing one in that defendants i in-

tended for the next nearly 90 years or longer to: continue.

-. in their unlawfuf retention of the District leases and to

deprive plaintiff's class as equitable owners of the property ;

} of their equitable interest :therein.

™~

7

Among the decisions supporting the plaintiff’s motion.

4 was Butler v. Eaton, 141°U.S.- 240, 242, 243, holding that. _

an intervening state judgment in another related case re-

_quired reversal of the judgment below. In Blackman et al.

v. Stone, 300 U.S. 641, reversing 17 F. Supp. 102, the Court

remanded for possible District Court. action with respect

21

‘to remaining orders; and thé right to amend following a

change in state law. was. granted in Bryan et al. v. Austin,

254 U.S. 933, 6 - ies

Paepcke should be construed pn SP Sa plaintiff’s

claims the special injury rule wa arbitrary and unconsti-

tutional. It did not how ever, JAérminate- or decide his claim

‘for relief, declare defendant’ S leases were illegal, require

that they be reformed to include per iodic redetermination

of values and. rentals or restore, in part, at least some of

: the ehormous irreparable loss suffered by - public as a

result of the terms of the leases.

Instead of recognizing the right of Plaintiff’sclass to

henefits of the Paepcke decision under well-established fed-

eral principles, the @ourt of Appeals inflicted a disastrous, ..

unwarranted and unjust defeat upon them.

The absence of a pending state- court action involving |

these defendants was the responsibility of the Defendants.

Under United Mine Wkrs. v. Gibbs, 383 U.S. 715, 726

the District Court should try this case for its justification

‘lies i in considerations of judicial —_—re: convenience and

fairness to litigants.” :

This is true though a new state action? involving other |

lessees was recently filed in the State courts. Petitioner.

believes they, too, will producé technical delaying motions.

Some of their pleadings are due before the date of respon: ©

dent’s briefs. Petition will refer to them in his reply>

: See also Watts v. Seward School Bad., “381 U.S. 126 and Cae .

y. Nebraska, 381 U.S. 126 and ICRR V. Olberding, 346 US. 338,

214 F! 2d 91, 92-95:-(CA 7) (1954).

1 Gendel et al. y. North American Car Corp. et al., Circuit Court

of Cook County, 71 Ch.2770. On August 17, 1971; Petitioner-as one

_ of counsel for plaintiffs, received a Motion to Dismiss from Defendant

Freeport Sulphur Company on the claim of statute of limitations. It.

has an 8.57 acre lease running from 1960 to 2010 and currently pays

annual rental of $1200. Its lease calls for annual rentals of $1200 for

the-first’20 years and revaluations’ _ subject to increases ‘of>no .

more than 20%.

9»

Defendants have gained a seven-year delay by their

questionable conduct which at all stages comes under the

catégory of unclean hands. The judgment below should

be reversed and with directions that the case be sent back

‘= to the District Court fox. prompt trial and disposition be-

fore Judge Hubert L. Will. Only by combined federal and*

state court action in their separate cases can the pyblic

~ be assured of reasonable | relief. |

| "ee

THE RULING PETITIONER WAS ESTOPPED FROM

PRESENTING CONSTITUTIONAL ISSUES IS IN

CONFLICT WITH THIS COURT'S CONTROLLING

PRINCIPLES. . ,

The Court of Appeals after assuming that federal juris- -

diction-might vest under plaintiffs equal protection claims

held he was ‘estopped. from asserting such constitutional

rights solely upon the authority of Angel v. Bullington, 330

US. 183, 189, 190. Plaintiff, the. opinion said, failed to take

his case to the Illinois Supreme Court eee if necessary :

to this Court. (440 F. 2d at’ p. 388). _ — oar

~ No consideration was giv en tov this Court’s limited and —

conflicting application of Angel, the equitable nature of

the estoppel doctrine, the controlling. abstention, principle

or the cold realities. contrasted with, the hv pothetical. ‘theo- .

ries advanced in the opinion.

Looking first at realities , Judge eer OV erlooked that,

while plaintiif’s case was pending in the Appe Hate Court,

he had successfully placed the weight of his office as Gov- |

erpor in favor of the rule accepted by’ the Illinois Supr eme

Court that Illinois taxpayers such as plaintiffs lacked stand-

ing to-sue.“Furthermore, his Attorney General, and U. S.

Steel had also then successfully argued in this Court it’

should reject Droste appeal, for the special injury rule

éreated no federal issues.

The Astor SR or ene ot: the task suggested by Judge

~ Kertier did not. occur to him but it did to plaintiff who

properly recognized that relief to the.District taxpayers, ©

if any, w ould come only in the federal courts.

‘The Angel opinion states its limited applicability to di-

versity cases and its inapplicability to federal and: consti-

tutional issues. (330 U.S. at * p. 190). This view was con-

firmed by this Court, First-Nat. Bank v. United Air Lines,

342 U.S. 396, 397 and other decisions.

"Phere is no justification j in the Court’s opinion or other. -

wise for its refusal to consider or give effect to such well

established and controlling principles. This Petition should

therefore ‘be allowed.

Estoppel is both an equieable ‘aa due process doctrine |

as was recently reaffirmed in Blonder v. Univ. Foundation,

28 LL. Ed. 2d 788, 800 .(1970), when the Court said ‘the

requirement of determining whether the party against

whom: an estoppel is. asserted had a full and fair oppor-.

tunity to litigate is a most significant safeguard.’’ No. such

_ opportunity was afforded to the 1,000,000 taxpayers in

plaintiff’s class and the Court of Appeals — not mee e

accepted defendants’ version of it.)

_ The abstention doctrine is fundamental to the issue of

federal versus state Court jurisdiction over federal con-

stitutional issues. It is illustrated by England v. Mediéal -

Exammers, 375 U.S. 411, and Zwickler ¥. Koota, 389 US.

241. This doctrine though recognizing an clement of discre-

. tion.ih the federal courts, must be applied consistently with

the principle that Congress has imposed, an-absolute duty

upon the federal Courts to decide federal constitutional

disputes. Plaintiff’s class were not deprived of their right

to federal judicial determination of their constitutional

claims: ‘because they litigated state issues in the state courts.

The oe decision oe this principle,

: : 24

The continuing commitment of this’ Court) to absteti-

tion cis’ revealed in ctshew ef al. vy. Hargrove, et al.

PS tL. Md 196, 197, (1971). After a state suit was filed

subsequent to the foderal-aection, this Court applying ab-

stention declared that federal action should be stayed for

the state action if sustained will obviate the necessity of

determining the Mths Amendment questions.” See also,

IP sconsin ve Constantineau, 27 L. Md. 2d 515, .

In Zwickler, this Court declared the obligation of the

federal courts at all levels to hear and decide constitutional

elaims requires them to ‘give dué respect toa suitor’s

choice of a federal fortim for the hearing and. decision. of

its federal constitutional claims.’ (p. 248).

Here ‘resolution of the federal constitutional question

+

“is (not) depe ‘dent upon, or may be materially altered by,

the det termination of an uncertain issue of state law,’’

Harman v. Forsenius, 380 U.S, 528, 534.

we ie |

THE NATURE OF THE PUBLIC INTEREST IN PUB-

LIC PROPERTY CONVERTED INTO PRIVATE

‘PROPERTY SHOULD BE CONSIDERED BY THIS

COURT. |

The prese nt. “suit ix direeted- in part to recovery property

from private corporations who by conduet tantamount to

frand have acquired it and converted it ‘into their private

‘property. Singe Crampton v. Zabriski, 101 U.S. 601, 609

(1879), this Court has upheld taxpayers? interest in publie’

monies to be direct and immediate with power to enjoin

its misuse: Judge Will, 264 F. Supp. 467, 468 (1967), recog-

hizéd the taxpayers equitable interest in publie property

held by General Dynamies as ates ing standing under the

due process clause. |

The legal significance of publie property held in iuet

is stated in the numerous decisions during the past 100

years in-tate and federal courts, in the laws enacted by

states and in state constitutions. The-nature of the re-

sponsibility of public officials holding property in trust

for the public has been held to be Similar to the duties of

trustees for property privately. owned. Ieilig Bros. v.

Kohler, 76 Ath2d 613, 616, 617 (Sup.Ct.Pa., 1950). The

* highest standards of conduet have been imposed upon pub-

lie trustees to assure the maximum possible return to tax-

payers and-the public as: beneficiaries of public property

held in trust. Lassen v. Arizona, 385 U.S, 458, 468, 469;

(See also App. 69-72). | ,

In Herr v. Rudolph, 25 NW 2d 916, 921, the North Da-

kota Supreme Court prohibited a public trustee from sell-

ing public property at private sale as taxpayer's ‘were de-

prived of the possibility of a greater income through com-

petitive bidding. This claim was asserted a state statute

exempting certain bidders from the requirements of a com-

petitive bidding law. violated the equal protection clause.

. See also, Raoul Berger, ‘‘Standing to Sue in Public Ac--

tions: Is It a Constitutional Requirement?” (Yale Law

Jour. Vol. 78:5:Apr. 1969, 816-840).

The Court of Appeals’ opinion holds’ upon the basis of

Owensboro (200 US. 38), that federal courts have been

reluctant ‘‘to: interfere with the. administration of munici-

pal affairs.’’ (440 F.2d, p. 387, App. 3). He was in- error

in that: first,‘this Court has been consistently interfering

with municipal and state action where, as here, federal

issues are at stake. ‘Second, this ‘litigation was directed

against the private corporations who by actions tantamount

to fraud had acquired public property and converted it

into private property.. Thirdly, the District joined plain-

tiff in requesting the District. eit to try this case.

Plaintiff’s class possessed property interests within -

Amendment XIV. a

VI. oe

_PETITIONER’S CLAIM WAS FOUNDED ON A TRADI-

TIONAL JOINT AND COMMON CLAIM. |

Plaintiff's suit was directed against the recovery. of

equitable interests in property held. by private corpora-

tions. It was a traditional joint and common claim. Sny-

der vy. Harris, 894 U.S. 332: Judge Wilk’s opinions so con-

eluded: ‘The right’asserted by plaintiff held in contmon

; by ul members of his elass."? (264 F. Supp. 370. See also

Dierks v. Thompson, 414 B.2d at p. 456). This Court

of Appeals did not reach this issue (440 F. 2d at. p. 388).

That such claims are true class actions (under the new

Rule 23) was stated-by Professor Charles A. Wright in

his discussion of class actions, 47 FRD 169, 174, when he

said:

‘*Another familiar class suit is that in which one or

more taxpayers of a community, suing on behalf of

‘all, challenge the’ validity of a proposed public ex-

penditure. It is difficult to believe that there has ever’

been such a case in which a good many of the taxpay-

ers would not have preferred that. their rights not’ be

enforced, beeause of their interest in having the ex-

penditure made. Yet no one has ever doubted the

propriety of bringing such a swt as a class action.”

_ Petitioner prays that this Couftt order the Court of

Appeals to direet the District to set aside its ruling on

*

this issue. . ‘|

| ce f 5 :

IMPORTANCE OF THE CASE, -—

This litigation is but another. ehapter in the publie’s.

battle to assure the protection of their interests in the con--*

stantly diminishing national, state and Tocal land resourees.! |

‘This suit was iristituted under the theory “to tell them (tax-

payers) they must wait upon gov ernmenit action is often an effectual

denial of the right for all time.” This language was incdrporated -

in 1970. in the opinion of the Illinois Supreme Court in Paepcke et

al.v. P. B. C. et al., 263 NE2d 11, 18. (App. 36).

é

Pe ee ee nt ME One ers eo ee

U7

i} : ’

Ilere, fhe land at fssue serves far greater national pur-

poses than local for the majority of the corporate lessees

acquired their long term interests because of its. in-

valuable uses for interstate imdustrial commercial and

transportation purposes.

In 1970 an exhaustive study of the tiation’ s land re--

sources was submitted to the President and Congress by:

the Publie Land Law Review Commission,:‘‘One Third of

the Nation’s Land”’, 1 in which it was stated in part:

‘While there nfay be some modest disposals, we con-

clude that at this time most public land would not: serve

the maximum public interest in. private ownership.”’

‘(p. 1) 7 | |

‘‘Hivery landowner is concerned with the return that

he receiyes for the use of his land or for the revenue

he receives from the products produced on that land:

United States citizens, collectively the owners of the

publi¢ lands, are similarly concerned.’’ (p.-p)

The 1970 Illinois 76th General Assembly Report of the.

il. State Senate Local Gov. Services Subcom. of the Mun.

Corp. Comm. on this subject (Vol. I, Facts—Summary and

Kvaluation, ‘‘The Met. San. Dist. of Greater Chicago”,

(at p. 63 said in part):

‘Unfortunately the taxpayers of the Sanitary Dis-

trict had already suffered. irreparable damage before

ba reforms ‘were made, because most of the desirable

land of the District .was already under lease, and

therefore only a-few leases +have been granted since

that time.’’ (App. 68)

The Lemont ease has national ‘significance. beyond the

constitutional and fe deral issues of due process, equal pro-

tection, personal rights, equitable ° estoppel, partial moot-

ness, and the issue of Judge Kerner’s disqualification.

These additional factors include:

First, Petitioner seeks to determine proper standards

and-conditions primarily for future compensation and use

’

‘ .

ts

28

extending to 2050 or later for the invaluable public prop-

erty. These standards embody periodic redetermination of

rentals based upon changing market values. Ordinarily.

this is a legislative or administrative function but Article

I, See, 10 prohibii: retroactive legislative action.

Second, the ocevpation’ under lease-or otherwise of vast

areas of industrial and commercial use public land is not

limited to Chicago; it covers metropolitan areas adjoining

navigable waterwiyvs or otherwise, throughout the country.

Petitioner does fot suggest the. questionable circum-

stances here -permeate all other areas. However, this is

often a gray if not a dark area and the time is overdue to

shed more light upon it, They too may benefit, if this Writ.

is allowed. | . : a

Third, the national interest is important, as has already

been indicated. Large amounts of federal money has and

will continue to be used to improve it.-

Fourth, the state refused, to- -assume, its responsibility

for the litigation for this case, and it is now properly

within the jurisdiction of the federal courts who are unique-

_ dy qualified to deal with complex litigation such as this.

This Court as tie ultimate guardian of the nation’s

constitutional. rigi?s*has another opportunity to perform |

_ that function and to again serve the interest of the people

of [Illinois and the nation.

CONCLUSION

Petitioner prays that this Honorable Court grant this

petition and enter a judgment reversing the final decree

of the’ Court of Appeals with instructions that it direct.

the District Court set aside its judgment and set this cause .

for early trial. | oe

; , liespectfully submitted, i.

Harry R. Boortu,

110 S. Dearborn—«411

Chicago, Illinois

_ANdover 3-6475

Petitioner, Pro Se

29

EXHIBIT 1

SPATUTES

1254. COURTS: OF APPEALS; ‘-CERTIORARI:.

APPEAL: CERTIFIED QUESTIONS .

Cases ‘in the courts of appeals may be seviewed by the

Supreme Court’ by the followi ing. nrethods :

— @) By writ of certiorari granted upon the sickle of

any party to any civil or criminal case, before or after:

rendition: of judgment, or decree; 7

1331. FEDERAL QUESTION: AMOUNT IN"

CONTROVERSY: COSTS.

(a) The district court shall have original jurisdiction

of all civil actions wherein the-matter in controversy ex- .

ceeds the sum or value of $10,000, exclusive of interest and

costs, and‘arises under: the Constitution, laws, or treaties

of the United States.

1343. CIVIL RIGHTS AND- ELECTIVE FRANCHISE ~ |

The district-courts shall have original jurisdiction of any

civil action authorized by law to be commenced my any

person: |

_ (8) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage,

of any right, privilege or immunity secured by the Con-

stitution of the United States or by any Act,of Congress. -

providing for equal rights of citizens or of all persons

within the jurisdiction of the United States. 3