Opposition Brief — Myers v. Burns

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ad SEP 5 1996

No. 96-193

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In The “23 —

Supreme Court of the United States

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October Term, 1995

MARTIN W. MYERS,

Petitioner,

vs.

THOMAS C. BURNS, HOITE C. CASTON, K. RICHARD

KEELER, PATRICIA SADLER MUNDELIUS, Trustees of

the Urantia Foundation, and PHILIP A. ROLNICK, an

individual represented to be a newly elected Trustee,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

GORDON DEAN BOOTH, JR.

Counsel of Record

SCOTT A. WHARTON

SCHREEDER, WHEELER & FLINT

Attorneys for Respondents

1600 Candler Building

127 Peachtree Street, N.E.

Atlanta, Georgia 30303-1845

(404) 681-3450

9539

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

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.

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QUESTIONS PRESENTED

1. Whether Illinois law requires the trustees of a private

trust to do anything more than comply with the terms of the trust

when removing a trustee?

2. Whether the due process clauses of the United States

Constitution apply to the actions of the trustees ofa private trust?

li

PARTIES TO THE PROCEEDING

All parties to the proceeding are correctly named in the

caption of the case. However, Respondents disagree with

Petitioner’s characterization of Respondent PhillipA. Rolnick’s

status as an “individual represented to be a newly elected

Trustee.” Respondent PhillipA. Rolnick is aduly elected Trustee

of the URANTIA Foundation.

i

TABLE OF CONTENTS

Page

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Counterstatement oftheCase .................005 l

Ry VEER EE RES PETE TT OPTI OTT? 4

Reasons for Denyingthe Writ ..................... 6

I. The lower courts correctly applied Illinois law.

PE Se ee any ae ea ee ee 8

II. There is no legal basis for Petitioner’s theory of

“CORWACIUAI GUE PTOCESS” 2... ccc cee sees 9

III. The due process clauses of the United States

Constitution do not apply to the actions of the

trustees of a private trust. ................... 15

EN CECE GaAs SEG646p4 v0 ossnssecenesses 16

TABLE OF CITATIONS

Cases Cited:

Bean v. Norfolk & Western Ry. Co., 84111. App. 3d 395, 405

EE ee re ae 14

iv

Contents

Braxton v. United States, 500 U.S. 344, 111 S. Ct. 1854,

Rees BE RED i oho da oe beh EA Sok wah

Clift v. UAW, 818 F.2d 623 (7th Cir. 1987) ............

Consolidated Bearings Co. v. Ehert-Krahn Corp., 913

Pues SOEs Gls PPE 665 bib b anne bu endavinebs

Duldulao v. St. Mary of Nazareth Hospital, 115 111.24 482,

PPT DE PORECUETD 66.05 kc Sbxconts nes seen ees

Estate of Steward, 480N.E.2d203 .................

First Nat’l. Bank of Chicago v. Canton Council of

Campfire Girls, Inc., 85 Ill. 2d 507, 426 N.E. 2d 1198

SSeeee Oe 08002 da eeee ee 800688 OA OS 085 OOOO SO

see eeereeeeeeeeeneeeereeeeeeneeeevreeereeeeeeeeeeeee

Gorin v. McFarland, 108 Ill. App. 2d 348, 247 N.E.2d620

ERE 5 cA aakeeRV Se cONss cebekbh eee seureanues

Hill v. Norfolk and Western Ry. Co., 814 F.2d 1192 (7th Cir.

2 Re Oe er ere Pen Pe Ee eee

In re Estate of Steward, 134 lll. App. 3d 412, 480 N.E. 2d

Be Ce A BERD aA A an Se eh 40 8 evan 44 ccees

May v. May, 167 U.S. 309 (1987) .............-2008-

Page

15

14

12

13

8,13

vee ee ee

or

Vv

Contents

Page

National Collegiate Athletic Association v. Tarkanian,

488 U.S. 179, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988)

SO ET TCE Pee T ERT POPE ee eee ee en ee 15

Polk v. Board of Trustees of Police Pension Fund of City of

Park Ridge, Illinois, 253 Ill. App. 3d 525 (1st Dist. 6th

EU, SOUR) 5 kx Big bch OEE eee a es 13

Robinson v. Ada S. McKinley Community Services, 19 F.3d

SPER SOD ck in cdecieuneccumeeeteanes 12

Shelley v. Kramer, 334 U.S. 1,92 L. Ed. 2d 1161, 68 S. Ct.

teak ac cape. CERT EEE TOT POE eo Eee Fey 15

Steger v. Northen, 229 Ill. App. 529 (1 Dist. 1923) ..... 1]

Stuart v. Continental Ill. Nat. Bank & Trust, 68 I. 2d 502,

BO RAM ME RMR EEOTTD 6 in asan on oe ceuaeks kicks 8

Statute Cited:

Illinois Charitable Trust Act, S.H.A. § 760 ILCS 55/1,

REINS 6.58 6566 60.5.5-4 De iene apc deckaesnneeeubeh ]

United States Constitution Cited:

POPPRNO a ones ccdu tina vuaneesirucs 9,12, 13,15

FourteenthAmendment ...................... 9,12,13,15

vi

Contents

Rule Cited:

PRONG COUT ES BG in ncc ne cicansccecstcssinusaas

Other Authorities Cited:

G.C. Bogert, The Law of Trusts and Trustees, §520 ....

Page

l

Respondents respectfully request that this Court deny the

Petition for Writ of Certiorari because this case does not

implicate any of the considerations governing review on

certiorari which are set forth in Rule 10 of the Court’s Rules. This

Court has emphasized that the “principal purpose for certiorari

is toresolve conflicts among the United States courts of appeals

and state courts concerning the meaning of provisions of federal

law.” Braxton v. United States, 500 U.S. 344, 111 S.Ct. 1 854,114

L. Ed. 2d 385 (1991) (emphasis added); Rules of the Supreme

Court, Rule 10. This case does not present aconflict among the

circuit courts or state courts as to the meaning of federal law.

Indeed, this case has nothing to do with federal law. As explained

below, the Northern District of Illinois and the Seventh Circuit

correctly dismissed Petitioner’s complaint after they applied

settled principles of Illinois trust law tothe undisputed material

facts of this case.

COUNTERSTATEMENT OF THE CASE

The URANTIA Foundation is a charitable common law

trust within the meaning of the Illinois Charitable Trust Act,

S.H.A. § 760 ILCS 55/1, et seq. It was created in 1950 by

anonymous contributors pursuant to a Declaration of Trust. The

Foundation is governed by a Board of Trustees. In the

Declaration of Trust, the contributors empowered the trustees to

remove a fellow trustee “for any reason.” Section 7.5 of the

Declaration of Trust provides:

7.5 REMOVAL OF TRUSTEE: Any

Trustee may be removed for any reason bya

unanimous vote of the remaining trustees,

and upon the casting of such a unanimous

vote of the remaining trustees, they shall

thereupon execute a certificate under the

hands and seals of said remaining trustees

2

certifying to the casting of such vote and to

the removal of such trustee, and the same

shall be filed for record as provided in

paragraph 9.1. Upon the execution and

recordation of suchcertificate, a vacancy and

the number of trustee shall be deemed to

exist.

The contributors also directed the trustees to “adopt by-laws, not

inconsistent with the provisions of [the] Declaration of Trust, for

the government of the Foundation and of the acts and procedures

of the trustees. .. .” Section 2.4 of the By-Laws addresses the

issue of removal. It provides for the trustees to “cast a ballot on

the question of whether or not such trustee should be removed”:

{[w]hen, in the opinion of a majority of the

trustees, [a] trustee has failed or refused to

assume and perform his duties and

responsibilities, or has done or permitted any

act or thing which is inconsistent with or in

degradation of the teachings of The

URANTIA Book, or by his acts or omissions

has brought disrepute upon himself or

URANTIA Foundation. . ..

Section 2.4 further provides that if a majority of the trustees

agree that removal is appropriate, they shall vote again at three

consecutive, quarterly board meetings. If all the trustees, except

the one to be removed, votes for removal at each of the three

subsequent meetings, the trustee will be removed. Section 2.4

also states that “[n]o part of the [removal] deliberation. . . shall

be included or recorded in the minutes of the meetings of the

board of trustees, but the ballot cast at each meeting on the

question of whether or not such trustee is to be removed shall be

recorded.”

3

There is no requirement in either the Declaration of Trust or

By-Laws that the removal candidate be provided “written

charges” or “a fair due process hearing,” or that any specific

procedures must be followed to remove a trustee. The

Declaration of Trust instead allows the Foundation’s trustees to

remove a fellow trustee “for any reason.” The By-Laws only

require the remaining trustees to vote unanimously in favor of

the removal at the three consecutive, quarterly board meetings

after they make the initial decision to remove a trustee. Neither

of these documents require written “charges” or specify any

particular procedures for removing a fellow trustee.

The undisputed material facts concerning the steps taken by

Respondents to remove Petitioner from the Foundation’s Board

of Trustees are summarized in the opinions of the Northern

District of Illinois (Appendix C to Petition) and the Seventh

Circuit (Appendix A to Petition). Both the district and circuit

court opinions explain that Respondents complied with the

requirements of the Declaration of Trust and the By-Laws

because they made a unanimous decision to initiate Petitioner’s

removal and subsequently voted unanimously in favor of

removal at the next three consecutive board meetings. In fact, the

Petitioner’s own statement of the case acknowledges that

Respondents complied with the requirements of the Declaration

of Trust and the By-Laws when they removed Petitioner from the

Foundation’s Board of Trustees. Nonetheless, Petitioner claims

that, based upon “the Urantia Foundation teachings,” upon

certain passages from The URANTIA Book, and upon the manner

in which another trustee was removed in 1984, as a matter of

“contractual due process,” Respondents could not remove him

without first providing “written charges” and conducting what

Petitioner calls a “fair, due process hearing.”

4

PROCEEDINGS BELOW

On October 25, 1993, Petitioner filed suit in the Circuit

Court of Cook County tochallenge the decision of Respondents

to remove him from the Foundation’s Board of Trustees.

Respondents removed the case to the United States District

Court for the Northern District of Illinois, Eastern Division. The

removal was based solely on the district court's diversity of

citizenship subject matter jurisdiction because this case does not

present any issues of federal law. Respondents subsequently

filed their motion for summary judgment based upon the

undisputed facts which show that Respondents complied with

the unambiguous terms of the Declaration of Trust and the

Foundation’s By-Laws when they removed Petitioner from the

Foundation’s Board of Trustees. On May 9, 1995, the district

court granted Respondent's motion and rejected Petitioner's

contention that he was entitled to a trial-like hearing and other

“due process” protections before the other trustees could remove

him from the Board of Trustees.

The district court held that, under Illinois law, the only legal

issue presented by this case was whether Respondents complied

with the terms of the trust when they removed Petitioner from the

Foundation's Board of Trustees. (Petition, C-9). The district

court found that the Declaration of Trust, which created the

URANTIA Foundation, unambiguously permits the removal of

a trustee “for any reason by unanimous vote of the remaining

trustees” (Petition, C-9), and that the undisputed facts show that

Respondents “ .. . voted unanimously, not once, but several

times, to remove [Petitioner].” (Petition, C-9). In response to

Petitioner's claim that Respondents were required to do

something more in order to remove him as a trustee, the district

court held that “imposition of the restrictive procedural

requirements suggested by [Petitioner] would be patently

inconsistent with the broad, essentially unfettered, removal

5

powers conveyed by [the specific removal provision] of the

{Declaration of Trust].” (Petition, C-11). The district court also

concluded that the Declaration of Trust preempted any

additional procedural requirements that Petitioner claimed were

imposed by the By-Laws or any other source, and that the By-

Laws, in any event, do not require the procedures sought by

Petitioner. (Petition, C-11). The district court also held that,

under Illinois law, evidence of the procedures followed when on

one prior occasion a trustee was removed has no bearing on this

case because any specific procedures used when that trustee was

removed were not required by the terms of the trust. (Petition, C-

12). The district court concluded that Respondents’ removal of

Petitioner from the Board of Trustees “complied with all the

requirements of the governing trust instrument.” (Petition, C-12,

13). On this basis, the district court entered summary judgment

against Petitioner and dismissed his complaint.

Petitioner subsequently filed his notice of appeal and asked

the Seventh Circuit to review the district court’s decision. On

April 9, 1996, the Seventh Circuit affirmed the district court's

judgment in an unpublished opinion and emphasized that “. . .

the procedure for removing [Petitioner] conformed with the

Declaration of Trust.” (Petition, A-3). The Seventh Circuit noted

that Petitioner makes “voluminous arguments” which “focus on

the reasons why the other trustees wrongly voted to terminate

him.” (Petition, A-4). The Seventh Circuit concluded that

While [Petitioner] obviously disputes the

distasteful facts leading up to his discharge,

it is not the duty of this court to sort out the

unfortunate facts surrounding this dispute.

Rather, we look only at whether the terms of

the trust were properly executed.

(Petition, A-4). The Seventh Circuit agreed with the district court

6

that itis not appropriate for the courts to review the reasons why

Respondents decided to remove Petitioner:

[Petitioner] attempts to draw the court into

his dispute with the Urantia Foundation by

referencing several distasteful controversies

involving him and other trustees. We need not

involve ourselves with the personality

conflicts that led to [Petitioner’s] removal.

We need only apply the trust documents. That

application is straightforward; the Board of

Trustees complied with the Declaration of

Trust and the By-Laws in removing

[Petitioner] as a trustee.

(Petition, A-5).

On May 6, 1996, the Seventh Circuit denied Petitioner's

petition for rehearing and suggestion for rehearing en banc.

Petitioner now files his Petition for Writ of Certiorari and asks

this Court to exercise its discretionary jurisdiction to consider

the same meritless arguments which already have been soundly

rejected by two lower courts.

REASONS FOR DENYING THE WRIT

Petitioner argues that Respondents were required to do far

more than comply with terms of the trust when they removed him

from the Foundation’s Board of Trustees. He goes to great

lengths to repeat the same argument that was soundly rejected by

both the district court and the court of appeals, namely, that the

Declaration of Trust, the Foundation’s By-Laws, the “Urantia

Foundation teachings,” and certain passages from The

URANTIA Book (including a passage which describes Pilate’s

refusal to sentence Jesus to death without a trial), when read

7

together, somehow grant Petitioner a right to “contractual due

process.” Petitioner argues that this fabricated right to

“contractual due process” required Respondents to provide

“written charges” and toconducta “fair, due process hearing” as

part of the removal process.

However, as both lower courts correctly held, Petitioner's

argument has no basis in fact or law. As explained above, the

undisputed evidence is that Respondents, when they removed

Petitioner from the Board of Trustees, followed the terms of the

trust to the letter, and that the unambiguous language of both the

Declaration of Trust and the By-Laws do not require the

procedures to which Petitioner claims he is entitled. Moreover,

as explained below, both lower courts correctly applied well-

settled principles of Illinois trust law to hold that Respondents

were only required to comply with the requirements of the trust

instrument in removing Petitioner. The reasons for their decision

to remove Petitioner are immaterial and are not subject to

judicial review. Petitioner also has no legal or factual basis for

his theory that “contractual due process” required Respondents

to provide him with “written charges” and a “fair, due process

hearing” before they removed him from the Board. As explained

above, there are simply no such requirements in the trust

documents. As explained below, there is no rule of law which

requires the trustees of a private trust to hold atrial and tocomply

with the due process requirements of the United States

Constitution when they decide to remove a trustee.

8

I,

THE LOWER COURTS CORRECTLY APPLIED

ILLINOIS LAW.

As emphasized in the opinions of both the district court and

the court of appeals, “[t]he court’s primary concern in construing

a trust is to discover the settlor’s intent, which the court will

effectuate if itis not contrary to law or public policy.” First Nat’l.

Bank of Chicago v. Canton Council of Campfire Girls, Inc., 85

Ill. 24 507,426N.E. 2d 1198, 1201. (Petition, C-9, A-3). :llinois

trust law provides that, when, as in this case, the terms of the trust

instrument are clear and unambiguous, a court must apply the

trust document as written and without looking beyond its four

corners. Matter of Estate of Steward, 134 Ill. App. 3d 412, 480

N.E. 2d 201, 203 (1985); Ford v. Newman, 77 Ill. 2d 335, 396

N.E. 2d 539, 540 (1979); Stuart v. Continental Ill. Nat. Bank &

Trust, 68 Ill. 2d 502, 369 N.E. 2d 1262, 1271 (1977) (“It is

axiomatic that the limits of a trustee’s powers are determined by

the instrument which creates the trust.”); Jn re Estate of Steward,

134 Ill. App. 3d 412, 480 N.E. 2d 201, 203 (Ill. App. 1985). See

also First National Bank of Chicago v. Canton Council, 426N.E.

2d at 1201. “[I]}t is not the function of a court to modify the

document or create new terms. . . .” Steward, 480N.E. 2d at 203.

Thus, under Illinois law, acourt cannot do as Petitioner suggests

and impose additional restrictions or limitations which are not

required by the trust instrument itself. Gorin v. McFarland, 108

Ill. App. 2d 348, 247 N.E. 2d 620, 622 (1969).

The lower courts correctly held that the only legal issue

presented by this case is whether Respondents complied with the

terms of the Declaration of Trust when they removed Petitioner

from the Board of Trustees. As explained above, the undisputed

evidence is that Respondents did comply with the terms of both

the Declaration of Trust and the Foundation’s By-Laws when

9

they removed Petitioner from the Board of Trustees. Petitioner

continues nonetheless to argue that, despite the fact that there are

no specific provisions in either the Declaration of Trust or the

By-Laws, which require the procedures he seeks, Respondents

were obligated as a matter of “contractual due process” to

provide Petitioner with “written charges” and a “fair, due

process hearing” before they could remove him from the Board

of Trustees. As explained below, Petitioner’s concocted theory

of “contractual due process” is frivolous and lacks any factual,

legal, or logical basis.

Il.

THERE IS NO LEGAL BASIS FOR PETITIONER’S

THEORY OF “CONTRACTUAL DUE PROCESS”.

The apparent premise of Petitioner’s so-called “contractual

due process” theory is that no party is entitled to exercise its

rights under an alleged contract unless it first conducts the kind

of “trial” required by the Fifth and Fourteenth Amendments to

the United States Constitution. Petitioner’s theory is specious

for two reasons. First, a trustee of acharitable trust has noright,

contractual or otherwise, to serve as a trustee. Second, the cases

which Petitioner cites in support of his argument do not mention

the term “contractual due process” or recognize any such

concept.

The most obvious flaw in Petitioner’s argument is the false

premise that he possesses a contractual right to serve as a trustee.

However, under settled principles of trust law, a trustee

possesses no personal or “contractual” right to remain a trustee.

To the contrary, the sole concern of acourt of equity inreviewing

the administration of a trust is the interest of the beneficiaries.

Although a court of equity has authority to intervene to prevent

abuse of the co-trustees’ power to remove an individual trustee,

10

the concern of the court is for the rights of the beneficiaries of the

trust and not for the removed trustee:

If the power [toremove a trustee] is reserved

to the settlor or given toco-trustees, the court

of equity will intervene to prevent an abuse of

the power. Here the question on which the

court must pass, however, is not whether

there was cause forremoval, but whether any

beneficiaries have been injured.

G.C. Bogert, The Law of Trusts and Trustees, § 520 at p. 29

(emphasis added). Accord W. Flatcher, Scott on Trusts, § 107.2,

at 124 (the proper function of a court, in reviewing the exercise

of the power to remove a trustee, is to “prevent its exercise in

such a manner as to prejudice the rights of the beneficiaries”

[emphasis added]).

Even incases involving judicial removal of a trustee (rather

than removal pursuant to the terms of the trust document by other

trustees or the beneficiaries), the court’s focus is solely on the

rights of beneficiaries; the claimed right of the trustee to retain

his position is not the issue. As this Court observed in May v.

May:

The power of a court of equity to remove a

trustee, and to substitute another in its place,

is incidental to its paramount duty to see that

trusts are properly executed; and may be

properly exercised whenever such a state of

mutual ill-feeling, growing out of his

behavior, exists between the trustees, or

between the trustee in question and the

beneficiaries, that his continuancy in office

would be detrimental to the execution of the

trust, even if for no other reason than that

11

human infirmity would prevent the co-

trustees or the beneficiaries from working in

harmony with him, and although charges of

misconduct against him are either not made

out, or are greatly exaggerated.

May v. May, 167 U.S. 309, 320 (1987). Thus, even when the

judicial remove! of a trustee is requested, the trustee has no

“personal” or “contractual” right to withstand removal until he

is “proven guilty” of some personal wrongdoing. This principle

has been adopted in Illinois decisional law. Steger v. Northen,

229 Ill. App. 529 (1 Dist. 1923).

Moreover, as this Court recognized almost 100 years ago in

May v. May, equity courts historically have viewed with

suspicion and distaste any effort by a trustee to force himself

upon the trust, as Petitioner seeks to do. Both this Court and the

Illinois Court of Appeals have cited with approval an early

decision of an English Lord Chancellor expressing this view. The

Illinois Court of Appeals, describing this Court’s opinion in May

v. May, stated:

And the court mentioned the case of Uvedale

v. Ettrick, 2 Cha. Cas. 130, decided by Lord

Chancellor Nottingham in 1682, where it

appeared that Ettrick (a trustee appointed

under a will and whose removal was sought)

insisted on continuing in office as trustee,

and quoted from the Lord Chancellor: “I like

not that a man should be ambitious of a trust,

when he can get nothing but trouble by it,”

and who “declared that, without any

reflection on Ettrick, he should meddle no

farther in the trust, etc.”

Steger v. Northen, 229 Ill. App. at541.

12

Because Petitioner has no right, contractual or otherwise, to

continue to serve as a trustee. even if there were such a thing as

“contractual due process,’ there is no factual basis for

Petitioner's theory that his “contractual” rights were violated by

Respondents.

The only legal authority cited in support of Petitioner's

concocted theory of “contractual due process” are cases which

address the issue of whether provisions of an employee

handbook can become enforceable terms of a written

employment contract. See, e.g., Robinson v. Ada S. McKinley

Community Services, 19 F.34 359 (7th Cir. 1994); Duldulao v. St.

Mary of Nazareth Hospital, 115 Ill. 2d 482, 505 N.E. 2d 314

(1987). The cases cited by Petitioner hold that, under certain

circumstances, procedural requirements included in employee

handbooks can become part of a written employment contract.

However, the cases cited by Petitioner do not require the

application of “due process” in the abstract. In fact, none of the

cases cited by Petitioner mention the phrase “contractual due

process.” The phrase appears to be nothing more than a

“buzzword” invented by Petitioner, as evidenced by the fact that

the specific case which Petitioner cites as support for his

statement that“. . . the concept of contractual due process has

previously been recognized by the Seventh Circuit. . .” does not

mention the term “contractual due process” or recognize any

such concept. (Petition, p. 23); Hill v. Norfolk and Western Ry.

Co., 814 F.2d 1192, 1199 (7th Cir. 1987) (holding that the

appellant waived any claim that he had been “denied procedural

protections guaranteed him by the collective bargaining

agreement” by failing to raise the issue before the public law

board). Moreover, none of the cases cited by Petitioner hold that

an employer cannot discharge an employee without conducting

a “trial” applying the same due process requirements imposed on

courts and other governmental decision-makers by the Fifth and

Fourteenth Amendments. In short, Petitioner’s argument is an

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13

unfounded and frivolous attempt to impose on all private actors

the same due process requirements of the Fifth and Fourteenth

A nendments as applied to governments actors in Polk v. Board

of Trustees of Police Pension Fund of City of Park Ridge, Illinois,

253 Ill. App. 3d 525 (1st Dist. 6th Div. 1993).

Furthermore, none of the cases cited by Petitioner were

decided under the law of trusts or purported to re-cast the

relationship between the trustee and the trust as a contract that

the trustee can use to restrict the other trustees in their exercise

of the powers granted to them in the trust document. Gorin v.

McFarland, 247 N.E. 2d at 622. To the contrary, as explained

above, atrustee has noright, contractual or otherwise, to serve as

a trustee.

Petitioner also repeats his argument that, in removing him,

Respondents were “contractually” bound to follow the same

procedures used in 1984 in the only other instance in Foundation

history in which a trustee was removed. He argues that the lower

courts should have imposed the prior procedure as an alleged

“custom or practice” which restricts the unfettered removal

power granted to the Foundation’s trustees by the Declaration of

Trust. However, both the district court and the court of appeals

correctly held that this argument is foreclosed by the settled

principle of trust law discussed above, requiring courts to apply

the terms of the trust as written. Under Illinois law, a prior

“custom or practice” of trustees, no matter how lengthy or

consistent, can never limit or alter the powers granted to trustees

by the trust document. Gorin v. McFarland, 247 N.E. 2d at 622

(trustees’ twenty-five year practice of only acting on basis of

unanimous vote could not create a requirement of unanimity

when the trust instrument only required a majority vote); see also

Estate of Steward, 480 N.E. 2d at 203 (acourt cannot modify a

trust document or create new terms).

14

Petitioner's “custom or practice” argument also fails for

three additional reasons. First, the evidence of a “custom or

practice” is only relevant when a term in a document is

ambiguous or unclear. However, as explained above, there is no

ambiguity in the trust document at issue in this case. The

Declaration of Trust clearly states that the trustees can remove a

fellow trustee “for any reason.” The fact that the trust document

does not require the procedures sought by Petitioner cannot

create an ambiguity; itonly means that the procedures sought by

Petitioner are not terms of the trust. Consolidated Bearings Co.

v. Ehert-Krahn Corp., 913 F.2d 1224, 1233 (7th Cir. 1990) (the

rights of the parties are limited to the terms expressed in a

contract). Second, Petitioner’s evidence of a “custom or

practice” consists of a single prior event. As a matter of Illinois

law, a single prior instance is insufficient to establish a “custom

or practice.” Bean v. Norfolk & Western Ry. Co., 84 Ill. App. 3d

395,405 N.E. 2d 418, 426 (1980). Third, the alleged “custom or

practice” also is irrelevant because it did not exist when the trust

was created. For a custom or practice to have any relevance, it

must have existed at the time the document being construed was

executed, and not after. /d. The single instance alleged by

Petitioner as evidence of a “custom or practice” occurred in

1984, over 30 years after the Declaration of Trust was executed

in 1950.

In sum, Petitioner’s claim of “contractual due process” is

utterly specious and lacks any factual, legal, or logical

foundation.

- sate Ler a Se

15

Ill.

THE DUE PROCESS CLAUSES OF THE UNITED

STATES CONSTITUTION DO NOT APPLY TO THE

ACTIONS OF THE TRUSTEES OFA PRIVATE TRUST.

To the extent Petitioner bases his “contractual due process”

argument on the due process clauses of the United States

Constitution, his argument has no basis in law. It is fundamental

that “[a]bsent the requisite governmental action, there can be no

claim for constitutional due process.” Clift v. VAW, 818 F.2d 623,

631 (7th Cir. 1987) (emphasis added); see also National

Collegiate Athletic Association v. Tarkanian, 488 U.S. 179, 102

L. Ed. 2d 469, 109S. Ct. 454 (1988); Shelley v. Kramer, 334 U.S.

1, 13, 92 L. Ed. 2d 1161, 68 S. Ct. 449 (1948). This Court has

consistently emphasized that the due process protections of the

Fifth and Fourteenth Ainendments “erect no shield against

merely private conduct, h«wever discriminatory or wrongful.”

Shelley, 334 U.S. at 13. Exscause the Foundation is a private trust,

the due process provisions of the Fifth and Fourteenth

Amendments simply do not apply and afford Petitioner no basis

for his claim that he is entitled to so-called “contractual due

process” protections.

16

CONCLUSION

The Petition should be denied because this case does not

present any issue of federal law and does not implicate any of the

other considerations governing the Court’s review of a petition

for certiorari as set forth in Rule 10 of this Court’s Rules. Instead,

the record shows that both the district court and the court of

appeals correctly applied settled principles of Illinois law tothe

undisputed material facts of this case.

Respectfully submitted,

GORDON DEAN BOOTH, JR.

Counsel of Record

SCOTT A. WHARTON

SCHREEDER, WHEELER & FLINT

Attorneys for Respondents

1600 Candler Building

127 Peachtree Street, N.E.

Atlanta, Georgia 30303-1845

(404) 681-3450

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