# Petition for A Writ of Certiorari — Booth v. Lemont Manufacturing Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1572%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 916 ## Text }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 ...... 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. = 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1572%3A01. Public record. Not legal advice.