Petition for a Writ of Certiorari — Weeks v. Clark

RR ees rene enon cd SERA RE RUSE DID SEES

In the | %

Supreme Court of the Amited States;

Ocroper TrerM, 1975

MICHAE rr

GERALD R. WEEKS, individually and as Chairman of

the DuPage County Board of Commissioners, ROBERT

A. MORRIS, individually and as Chairman of the Special

Investigative Committee, and FRANK H. BELLINGER,

individually and as Vice-Chairman of the Special Investi-

gative Committee,

Petitioners,

Us.

JAMES CLARK, Treasurer of DuPage County, and

MICHAEL DUTTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Terry M. Grimm

Ropert G. Foster

ELten C, NEWCOMER

One First National Plaza

Chicago, Illinois 60603

Attorneys for Petitioners

Of Counsel:

Winston & Strawn

One First National Plaza

Suite 5000

Chicago, Illinois 60603

The Scheffer Press, Inc.— (312) 263-6850

TABLE OF CONTENTS

PAGI

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STATEMENT OF THE CARE, soccccisssscsscsscssiseseisserrains 4

REASONS FOR GRANTING THE WRIT ...0....00. 6

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APPENDIX A

Minute Order of the United States District Court

for the Northern District of Tlimois ......0....0.... la

APPENDIX B

Opinion of the Court of Appeals... 3a

Taste Or AvutTuorities Crrep

CASES:

Granny Goose Foods, Inc. v. Brotherhood of Team-

sters & Auto Truck Drivers, 415 U.S. 423 (1974) .... 6.7

Jacobs v. Tawes, 250 F.2d 611 (4th Cir. 1957) oo... 8

Majuri vy. ULS., 481 F.2d 469 (38rd Cir. 1970), cert.

Bese BO TF. DU Ce vakasenhca teen chad Soicncabn anaccaces 8

Pav American World Airways v. Flight’ Engineers

Ass'n, 36 F.2d BAO (3a Civ. 1GBZ) concccccc.cccccsmccrcsss 6,8

Preston County Light & Power Co. v. Pubiic Service

Commission of West Virginia, 297 F.Supp. 759 (S.D.

Wea Wc RUD: schecnciinnintra tanta svanetagdaiehateneaasobninedddbuenanastiiie 8

Sims v. Greene, 160 F.2d 512 (3rd Cir, 1947) co. 6,8

West Virginia Motor Trust Ass'n vy. Public Service

Commission of West Virginia, 123 F.Supp. 206 (8.D.

W.Va. 1954), aff'd 348 U.S. 881 (1954) oo 8

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SUPREME COURT OF THE UNITED STATES

Ocroper Term, 1975

No.

GERALD Ro WEEKS, individually and as Chairman of

the DuPage County Board of Commissioners, ROBERT

A. MORRIS, individually and as Chairman of the Special

Investigative Committee, and FRANK H. BELLINGER,

individually and as Vice-Chairman of the Special Investi

gative Committee,

~ Petitioners,

vs,

JAMES CLARK, Treasurer of DuPage County, and

MICHAEL DUTTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To the Honorable Warren BE. Burger, Chief Justice, and

the Associate Justices of the Supreme Court:

Petitioners, Weeks, Morris and Bellinger, respectfully

petition for a writ of certiorari to review an order of the

United States Court of Appeals for the Seventh Cireuit

dismissing Petitioners’ appeal below.

2

OPINIONS BELOW

The United States District Court for the Northern

District of Illinois rendered no opinion below. The District

Court’s Minute Order which was appealed from is re-

printed as Appendix A to this Petition. The opinion of

the Seventh Cireuit Court of Appeals dismissing Peti-

tioners’ appeal is not officially reported but its Slip

Opinion is reprinted as Appendix B to this Petition.

JURISDICTION

The decision of the Court of Appeals which constitutes

its judgment was entered on August 5, 1975. Jurisdiction

of this Court to review the judgment by writ of certiorari

is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED FOR REVIEW

(1) Whether a Temporary Restraining Order in a

case required to be heard by a three-judge court pursuant

to 28 U.S.C. §2281 may be extended over opposition

beyond twenty days without a hearing on a motion for a

preliminary injunction and whether such a procedure is

sanctioned by Rule 65(e) of the Federal Rules of Civil

Procedure.

(2) Whether an indefinitely extended Temporary Re-

straining Order becomes an appealable interlocutory in-

junction within the terms of 28 U.S.C. §1292(a)(1) even

though a three-judge court has been convened pursuant

to 28 U.S.C. §2284(1).

(3) Whether 28 U.S.C. §§2281 or 2284 confers general

appellate jurisdiction on three-judge district courts.

(4) Whether the Court of Appeals erred in dismissing

the Petitioners’ appeal.

STATUTES INVOLVED

Title 28 U.S.C. §2284(3) provides in relevant part:

“In any such case in which an application for an

interlocutory injunction is made, the district judge

to whom the application is made may, at ny time,

grant a temporary restraining order to pr vent irrep-

arable damage. The order, unless previously revoked

by the district judge, shall remain in force only until

the hearing and determination by the full court.”

Rule 65(b) of the Federal Rules of Civil Procedure,

as amended, [ifective July 1, 1966, provides in relevant

part:

“A temporary restraining order ... shall expire

by its terms within such time after entry, not to

exceed 10 days, as the court fixes, unless within the

time so fixed the order, for good cause shown, is

extended for a like period or unless the party against

whom the order is directed consents that it may be

extended for a longer period.”

Rule 65(e) of the Federal Rules of Civil Procedure

provides in relevant part:

“These rules do not modify any statute of the

United States relating to temporary restraining

orders and preliminary injunctions in actions affect-

ing employer and employee; ... or Title 28, U.S.C.

2284, relating to actions required by Act of Con-

gress to be heard and determined by a district court

of three judges.”

Title 28 U.S.C. $1450 provides in relevant part:

“Whenever any action is removed from a State

court to a district court of the United States .. .

* = *

= oo

All injunetions, orders, and other proceedings had

in such action prior to its removal shall remain in

full foree and effect until dissolved or moditied by

the district court.”

STATEMENT OF THE CASE

Respondents (plaintiffs below) filed a lawsuit on June

9, 1975, in the United States District Court for the

Northern District of Illinois, pursuant to Title 42 U.S.C.

S1988, to redress alleged deprivations of their rights

under the First, Fourth and Fourteenth Amendments of

the Constitution of the United States.

Respondents sought and obtained a ‘Temporary Re-

straining Order of June 25, 1975, preventing your Peti-

tioners from. | eding with an investigation of James

Hl. Clark relating to the propriety of his) eonduet as

Treasurer of DuPage County by ao special committee

comprised of 13 members of the County Board of DuPage

County, Hlinois, Petitioners are elected members of the

DuPage County Board.

On July 1, 1975, over opposition of Petitioners, who

filed a motion to dissolve the Temporary Restraining

Order, the single district court judge extended the Tem-

porary Restraining Order indetinitely. (Appendix A) To

date, Petitioners have had no hearing on the Respondents’

motion for a preliminary injunction. On July 14, 1975,

Petitioners filed a Notice of Appeal in the Seventh Cir-

cuit Court of Appeals. On August 4. 1975, aeting on the

motion of Respondents, the Seventh Cireuit) Court) of

Appeals dismissed the appeal for lack of jurisdiction,

The court below held it was without jurisdiction to hear

Petitioners’ appeal in view of the provisions of 28 U.S.C.

NES EEE NT RST BEE NEL TCE BN EDENTON GL TO INES aires He iis cited Me IRR ANE TAL NRA PI TINE

wate

2284(3) and §2284(5), citing Hicks v. Pleasure House,

Inc., 404 U.S. 1 (1971):

“... a temporary restraining order issued pur-

suant to §2284(5) is reviewable in a court of appeals

to the extent that any such order is reviewable under

28 U.S.C. §§1291 and 1292(a). However, if no such

appeal is taken before the three-judge court is con-

vened, application must be made to that court for

vacation or modification of the temporary restraining

order pending a final determination of the merits.”

404 U.S. at 3

a SE

REASONS FOR GRANTING THE WRIT

The Petition raises a fundamental question concerning

the limited and fixed duration of Temporary Restraining

Orders. Rule 65(b) of the Federal Rules of Civil Proce

dure is explicit. Petitioners have had no evidentiary

hearing on a motion for preliminary injunction and hay

been indefinitely enjoined. In normal circumstances, te

law is clear that the Temporary Restraining Order pres

ently entered is of no effect. Granny Goose Foods, 1)

v. Teamsters, 415 U.S. 423, 451 (1974); Pan American

World Airways v. Flight Engineers Ass‘n., 306 F.2d S40

(2d Cir. 1962); Stms v. Greene, 160 F.2d 512 (3rd Cir.

1947).

Thus, the court must determine whether a ‘Temporary

Restraining Order granted in a three-judge court case

has a special indefinite life which Temporary Restraining

Orders in other cases do not.

In Granny Goose Foods, Inc. v. Teamsters, supra, this

court granted certiorari to the Ninth Cireuit Court of

Appeals in a case involving an interpretation of 28 U.S.C.

$1450. The case in the Ninth Cireuit turned on the narrow

issue of whether a Temporary Restraining Order could

be extended indefinitely without a hearing held on a

motion for a preliminary injunction. The Ninth Cireuit

held that it could not and this Court, noting a conflict in

the circuits!’ granted certiorari and affirmed the Ninth

Circuit.

' Appalachian Volunteers, Inc. v. Clark, 4820 F.2d) 530

(6th Cir, 1970), cert. denied 401 U.S. 939 (1971); Morning

Telegraph v. Powers, 450 F.2d 97 (2d Cir. 1971), cert.

denied 405 US. 954 (1972).

The Granny Goose case involved employer-employee

relationships and, read literally, Rule 65(e) of the Federa!

Rules of Civil Procedure might well proscribe any appli-

cation of Rule 65(b) with respect to the duration of a

Temporary Restraining Order in such a case. This Court,

while not considering the applicability of the provisions

of Rule 65(e), rejected the notion that a special breed of

Temporary Restraining Orders was created by the provi-

sions of 28 U.S.C. §1450 and accordingly should grant

certiorar’: here to determine the important question of

whether a special breed of Temporary Restraining Order

of indefinite duration is created by virtue of 28 U.S.C.

§2284(3).

In Graniuy Goose, this Court was faced with the pre-

cise circwustances which are present in the instant casc.

In resolving the facial conflict between the provisions of

28 U.S.C. $1450 and Rule 65(b), the Court) suceinctly

stated the issue and held:

“To the extent this reading of $1450 is inconsistent

with the time limitations of Rule 65(b), petitioners

contend the statute must control.

In our view, however, §1450 can and should be

interpreted in a manner which fully serves its under-

lving purposes, yet at the same time places it in

harmony with the important congressional policies

reflected in the time limitations in Rule 65(b).” 43.

U.S. at 435.

The Court should grant this petition for certiorari

to place Title 28 U.S.C. §2284(3) in harmony “with the

* Basically involved, as this court noted, was a dispute

over the enforeeability against the defendant union of

certain changes in new contracts. 415 U.S. at 427. The

Temporary Restraining Order was obtained ex parte and

the union’s motion to dissolve the Temporary Restraining

Order was denied.

— en

important congressional policies reflected in the time

limitations in Rule 65(b).”

The Seventh Circuit Court of Appeals held that it

was without jurisdiction to hear Petitioners’ appeal since

if the Temporary Restraining Order were appealable at

all it must be heard by the three-judge court. A three-

judge court is a nist prtus tribunal and does not have

general appellate jurisdiction. Preston County Light &

Power Co. v. Public Service Comm'n of West Virginia,

297 F.Supp. 759, 864 (S.D.W.Va. 1969; Jacobs v. Tawes,

250 F.2d 611, 614 (4th Cir. 1957); see also Majuri v. United

States, 431 F.2d 469 (3rd Cir. 1970), cert. denied 400 U.S.

943 (1970); West Virginia Motor Truck Ass'n vy. Public

Service Comm'n, 123 F.Supp. 206, 216 (S.D.W.Va. 1954),

aff'd 348 US. 881 (1954). Normally, of course, Temporary

Restraining Orders are not appealable. Pan American,

supra, at 841-842. It is only when a Temporary Restrain-

ing Order becomes an interlocutory injunction that it is

subject to review pursuant to 28 U.S.C. §1292(a)(1). Pan

American at 842; Sims v. Greene, supra, at 517. Petition-

ers filed a timely notice of appeal on July 14, 1975, exactly

one day after a “normal” Temporary Restraining Order

would have expired. If in three-judge cases the Federal

Rules of Appellate Procedure for filing a notice of appeal

are amended so that a party against whom a Temporary

Restraining Order is obtained must file his notice of

appeal before the chief judge of the cireuit court con-

venes the three-judge court, this Court should seize an

opportunity to make this anomaly clear to the practicing

bar. It is Petitioners’ view that the Temporary Restrain-

ing Order entered June 23, 1975 did not become an inter-

locutory injunction and thus appealable within 28 U.S.C.

§1292(a)(1) until the expiration of twenty days from

the date it was originally granted, June 23, 1975.

eer

CONCLUSION

All questions now presented for review were answered

incorrectly by the lower courts in that the holdings below

conflict. with applicable decisions of this court and the

mandate of the Federal Rules of Civil Procedure relating

to the duration of Temporary Restraining Orders.

It is requested, therefore, that this petition for a Writ

of Certiorari be granted.

Respectfully submitted,

Terry M. Grimm

Ronerr G. Foster

E.Ltexn C. NEWCOMER

One First National Plaza

Suite 5000

Chicago, Hlinois 60603

Attorneys for Petitioners

Of Counsel:

Winston & Strawn

One First National Plaza

Chicago, Tlinois 60603

=.” eee

CERTIFICATE OF SERVICE

County of Cook ]

State of Illino's | at

1, Terry M. Grimm, state under oath that I have this

date served the attached Petition for Writ of Certiorari

on James Clark and on Michael Dutton by delivering three

copies of the same by hand to their counsel of record,

Thomas P. Sullivan, Alan L. Metz and Jeffrey D.

Colman, Jenner & Block, One IBM Plaza, Chicago, Illi-

nois, and by mailing one copy of the same by certified

tail to their additional counsel of record, Paul T. Kalinich,

646 Roosevelt, Glen Ellyn, Illinois. All parties required

to be served have thus been served.

REE RRR R EE EERE EEE RHEE EE EEE HEHE EH EE HEHE EEE E EEE EEEEES

Terry M. Grimm

Subseribed and sworn to

before me this third day

of November, 1975.

eRe UOUCOUOCOCOCOCOCOOOOOOOCOSSIOCOCOCOOOIOOOOOOS

Notary Public