Appendix — Mann v. Brown
Supreme Court brief2002
Ask Donna
What actually matters in this document.
Text
IN THE
OF
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2001
BEVERLY B. MANN,
Petitioner,
Vv.
DOROTHY BROWN, AS CLERK OF
THE CIRCUIT COURT OF COOK
COUNTY, ILLINOIS, AND COOK
COUNTY, ILLINOIS,
Respondents.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
Beverly B. Mann
Petitioner Pro Se
7261 North Campbell Avenue
Chicago, Illinois 60645
(773) 465-4587
i
PLEASE NOTE: A few of the items below are identified in
the Petition as different appendices than they actually are; e.g.,
three documents are identified in the Petition as App. G, but
only one of them actually appears as App. G. (The other two
appear respectively as Apps. X and Y.) Also, many of the
documents below, while referenced in the Petition, are not
identified in the Petition as appearing in the appendix.
This is because Petitioner planned initially to appeal only from
the Sept. 19 and Oct. 16 orders and not from the portion of the
Aug. 31 order that became final on that date, preferring
instead to invoke Illinois’ “savings” statute and refile the case
in state court. She will do that shortly but decided only very
recently to appeal to this Court from the final portions of the
Aug. 31 order also. Thus to file it by (on) the deadline, she
filed it without refining, proofreading and editing it.
This also is why she bound only the August 31 order and her
response to the “show cause” portion with her Petition; she
couldn’t compile and reformat the remainder in time to
include them.
INDEX TO APPENDICES
Document: Appendix:
Order, Seventh Circuit Court of Appeals,
Ps IE tdvnedoderscvenracdacdaiiinddinionten seen App. A
Order, Seventh Circuit Court of Appeals,
PR FEO Fak sadtvepischdstantcuticaciuuisececeies App. A(a)
Order, Circuit Court of Cook County, Illinois,
in Beverly Mann v. The Upjohn Co, entered by
Circuit Judge Susan Zwick, Nov. 20, 1998 ...... App. A(b)
li
Document: Appendix
Order, Seventh Circuit Court of Appeals,
WON TB j BOGE ive deccresssctincchnacassene eters App. B
Order, Seventh Circuit Court of Appeals,
UE BE OE wc dniseis décisvccvsdévesdedensecetiaviiveiion App. C
United States District Court Judgment,
Hon. Harry D. Leinenweber, Oct. 19, 2001........... App. D
(Corrected) Response to Rule to Show Cause,
Beverly B. Mann, Sept. 19, 2001................... ...App. E
United States District Court Memorandum Opinion
and Order, Hon. Harry D. Leinenweber,
RES DO evi Gini bade App. F
Four-Page Excerpt of Petition to the Illinois
Supreme Court in Mann v. The Upjohn
Company, filed Sept. 18, 2001.............02secececeees App. G
(Corrected) Motion for Stay of Issuance of
Mandate so as to Enable the Filing of, and Ruling
Upon, a Motion for Rehearing (and Rehearing
en banc) re: September 19, 2001 Sanctions Order,
Shed Dent. ZO, DOO sa ic detidcnvcssiensiaiseeneiens akin App. H
Emergency Motion for Clarification Concerning
The Motion to Stay Issuance of Mandate and,
Alternatively, Motion to Recall the Mandate,
FIO COE, FB k.cecskaeccccdnsrssegvaesiterccaiensans App. I
Article by Beverly Mann Published in December 8,
1994, edition of the Chicago Daily Law Bulletin,
referenced in the Petition in a footnote on p. 22....App. J
ili
Document: Appendix:
Order, Seventh Circuit Court of Appeals,
Circuit Judge Frank H. Easterbrook,
rs re reich as cebuieebeebesddoredesvescese App. K
Unpublished Article by Beverly Mann,
Motion Pursuant to Fed. R. Civ. P. 60(b)(5) and (6)
to Vacate the Final Judgments Entered in [Mann
v. City of Chicago, et al., 84 C 110200] on Feb. 10,
Pe EE Be CO inccsacescsecvecseoety secon App. M
Designation of District Judge for Service in
Another District Within His Circuit, issued in
Mann vy. City of Chicago, et al., 84 C 110200, by
Frank H. Easterbrook, Acting Chief Judge,
Seventh Circuit, Jan. 25, 2001 ............... cece eee App. N
United States District Court, Northern District of
Illinois, Order of the Executive Committee,
issued Feb. 21, 2001 in Mann v. City of Chicago,
I, A Sua kc cde edddeve veer eovedeeve App. O
Note of Beverly Mann memorializing conversa-
tions re: Apps. N and O, Mar. 1, 2001.......... App. O(a)
United States District Court, Northern District of
Illinois, Order of the Executive Committee,
issued Mar. 12, 2001 in Mann v. City of Chicago,
an 6 ON eg cca ian akicn tuculicevdebecawetnes App. P
Note of Beverly Mann memorializing conversa-
tions re: App. P, Mar. 23, 2001...............00 App. P(a)
iV
Document: Appendix:
Article by Michael Sneed, Chicago Sun-Times,
POY, DA, Deer vaciacsWidledinevétoinkdintvtieneses App. Q
Motion Pursuant to 28 U.S.C. § 291 and the
Guidelines for the Intercircuit Judicial Assignment for
Certificate of Necessity of Assignment to an Intercircuit
Visiting Judge, filed by Beverly Mann in Mann vy. City
of Chicago, et al., 84 C 11020, Jun. 5, 2001...... App. R
Order of Acting Chief Circuit Judge Frank H.
Easterbrook re: Motion Pursuant to 28 U.S.C.
§ 291 and the Guidelines for the Intercircuit Judicial
Assignment for Certificate of Necessity of Assignment to
an Intercircuit Visiting Judge, filed by Beverly Mann
in Mann v. City of Chicago, et al., 84 C 11020,
CN sivccadesveddocstisveniauseiairedabunnees App. R(a)
Response of Beverly Mann to dismissal of
judicial misconduct Complaint re: Circuit Judge
Ilana D. Rovner, Nov, 28, 2000...............++- App. S
Order, Seventh Circuit Court of Appeals,
Circuit Judge Frank H. Easterbrook,
OID, DOE nccnknsevesévesssndeesseusecbespexeuians App. T
Motion for Assignment to Three-Judge Panel,
filed by Beverly Mann in Mann v. Pucinski
(i.e., Mann v. Brown), Nos. 99-1750 and
DD. SINS, MAN, FF yj Me cacciccctvedeiarcssetionse App. U
Unpublished Article by Beverly Mann,
ARE. BE esctrivcccsmincntitdimminannie App. V
Document: Appendix:
Article published in the New York Times,
PRE, Wy ee for decevbnsdssnseccvsasvivessecton App. V(a)
United States District Court Memorandum
Opinion and Order issued in Mann v. City
of Chicago, et al., 84 C 11020, Hon. G. Patrick
RE, FUR, Wil NEM crabschdcsenecassssiasinsss App. W
Petition for Writ of Mandamus and Prohibition
filed in Mann v. Pucinski, No. 98-8004,
NN its Ii pi cae deen cde a App. X
Transcript of District Court Proceedings before
Hon. Harry D. Leinenweber in Mann v. Pucinski,
No. 98-8004, Sep. 30, 1999.................066. App. Y
Response to Notice to the United States Court
of Appeals for the Seventh Circuit and [Response
to Request for Leave to File Rule to Show
Cause, filed by Beverly Mann in Mann v.
Brown, Nos. 99-1750 and 99-3593,
Se Bey ME incidetevesdisindehndseiesccbesies App. Z
App. A- 1
2001 U.S. App. LEXIS 19829, *
BEVERLY B. MANN, Plaintiff-Appellant, v. DOROTHY
BROWN, Clerk of the Circuit Court of Cook County, Illinois,
and COOK COUNTY, ILLINOIS, Defendants-Appellees.
Nos. 99-1750 & 99-3595
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
2001 U.S. App. LEXIS 19829
August 15, 2001 *, Submitted
* After an examination of the briefs and the records, we have
concluded that oral argument is unnecessary, and the appeals
are submitted for decision. See Fed. R. App. P. 34(a); Cir. R.
34(f).
August 31, 2001, Decided
NOTICE: [*1] RULES OF THE SEVENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO
UNPUBLISHED OPINIONS. PLEASE REFER TO THE
RULES OF THE UNITED STATES COURT OF APPEALS
FOR THIS CIRCUIT.
PRIOR HISTORY: Appeals from the United States District
Court for the Northern District of Illinois, Eastern Division.
No. 98 C 8004. Harry D. Leinenweber, Judge.
DISPOSITION: Appeal No. 99-1750 dismissed as moot. On
appeal No. 99-3595, the judgment of the district court vacated,
and the case remanded with instructions to abstain. An order
~
App. A - 2
to show cause entered, returnable within 14 days.
COUNSEL: BEVERLY B. MANN, Plaintiff - Appellant (99-
1750, 99-3595), Pro se, Chicago, IL USA.
For COOK COUNTY, DOROTHY BROWN, Defendants -
Appellees (99-1750, 99-3595): Mary D. Mallo, OFFICE OF
THE STATE'S ATTORNEY OF COOK COUNTY, Chicago,
IL USA.
JUDGES: Before Hon. FRANK H. EASTERBROOK, Circuit
Judge, Hon. DANIEL A. MANION, Circuit Judge, Hon.
MICHAEL S. KANNE, Circuit Judge.
OPINION: Order
This is the culmination of an absurd, and absurdly protracted,
effort by a lawyer who filed a tort suit in state court to litigate
particular issues in federal court. Beverly Mann filed a
products-liability suit against Upjohn Company. After
dismissing that suit in [*2] 1992 to avoid the judge's order
that she submit to discovery, Mann filed again in 1993, and
again failed to provide information in discovery despite
judicial orders requiring her to do so. Mann took the position
that she alone would decide what information Upjohn
received. Ensuing sanctions hampered her ability to present
evidence at trial. Mann turned to federal court, asking for an
order compelling the state court to grant a continuance. That
quest was unavailing. When the case was called for trial in
April 1998, Mann, a member of the bar representing herself,
refused to proceed. The judge dismissed the suit for want of
prosecution, and Mann appealed. Under 705 ILCS
105/27.2a(k)(4) she had to pay a record-preparation fee of $
150 plus 25 [cents] for each page over 200. This was no more
acceptable to Mann than the discovery rulings had been. She
was willing to pay $ 150 for preparing the whole record
App. A - 3
(which weighed in at over 6,000 pages) but no more.
Supreme Court Rule 298 provides for full or partial waiver of
the fee for those who are unable to pay it. Mann, who
concedes ability to pay, contends only that paying the fee
would be a "hardship." Abjuring the means provided by state
[*3] law for relief, Mann asked the judge in the state case to
declare § 105/27.2a(k)(4) unconstitutional as a violation of the
equal protection clause in the fourteenth amendment and as a
"hidden tax" in violation of the state's constitution, Art. I § 12
of which provides for access to the courts. This provision
reads: "Every person shall find a certain remedy in the laws
for all injuries and wrongs which he receives to his person,
privacy, property or reputation. He shall obtain justice by law,
freely, completely, and promptly." Mann's theory is that the
charge exceeds the cost of preparing the record, is deposited in
the county treasury, and thus is a "tax" on litigation that
abridges the right of access.
After the trial judge denied Mann's request for relief, she did
not appeal within the state system. Instead she filed a federal
suit (No. 98 C 6078) under 42 U.S.C. § 1983, making the
same constitutional arguments that had been presented to the
state triai judge. This was dismissed under the Rooker-
Feldman doctrine after the district judge concluded that it was
just a (poorly) disguised attack on the decision of the state trial
judge. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 68 L.
Ed. 362, 44 S. Ct. 149 (1923); [*4] District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 75 L. Ed. 2d 206,
103 S. Ct. 1303 (1983). Mann's next step was to file an
original action in the Supreme Court of Illinois--seeking to
invoke not Rule 298 (a request that should have been
addressed to the trial or appellate courts) but Supreme Court
Rule 381, which deals with challenges to revenue statutes.
That court promptly denied Mann's request for leave to
commence an original action. Mann also presented a new
request to the trial judge in the products-liability case. That
App. A-4
judge made it clear that the earlier decision had been, not on
the merits, but procedural: The judge viewed Mann's motion
as an inappropriate effort to convert the products-liability case
into some new constitutional claim.
Mann could have appealed that decision within the state's
hierarchy but did not. Instead she returned to federal court,
first by filing a Rule 60(b) motion in No. 98 C 6078 and, after
that failed, by commencing a few federal suit, which was
docketed as No. 98 C 8004. (She did not appeal the final
decision in No. 98 C 6078.) In this new proceeding--Mann's
third federal suit arising out of a single state action--Mann
[*5] demanded an injunction, a writ of prohibition, and other
relief against the state's implementation of § 105/27.2a(k)(4).
This suit could have been dismissed on preclusion grounds; a
disappointed litigant must appeal rather than file another suit,
even if developments after entry of the first judgment show
that the decision was incorrect. See Federated Department
Stores, Inc. v. Moitie, 452 U.S. 394, 69 L. Ed. 2d 103, 101 S.
Ct. 2424 (1981). But the defendants did not invoke the law of
claim preclusion (res judicata). Instead they defended on the
merits. The district judge concluded that the state judge's
explanation lifted the Rooker-Feldman doctrine. Now, the
federal judge believed, Mann was attacking § 105/27.2a(k)(4)
itself rather than the state court's decision. (This is a doubtful
proposition; Mann's only grievance is the state judicial
system's application of § 105/27.2a(k)(4) to her appeal. But
just as the Supreme Court avoided the Rooker-Feldman issue
in Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 95 L. Ed. 2d 1, 107
S. Ct. 1519 (1987), we need not consider it here.) Nonetheless,
this did Mann no good, because the district judge concluded
[*6] that she is very unlikely to prevail on the merits and
declined to afford interlocutory equitabie relief. 1999 U.S.
Dist. LEXIS 2804 (N.D. Ill. Mar. 2, 1999). Mann's appeal
from this decision has been docketed as No. 99-1750.
While that appeal was being briefed, the district court
App. A - 5
dismissed Mann's complaint on the merits. 1999 U.S. Dist.
LEXIS 13426 (N.D. Ill. Aug. 3, 1999). The court ruled that a
fee for record preparation in an ordinary civil lawsuit is not
subject to the special rules for criminal litigation by indigents,
exemplified by cases such as Griffin v. Illinois, 351 U.S. 12,
100 L. Ed. 891, 76 S. Ct. 585 (1956), but is more l*"e the
filing fee in bankruptcy, see United States v. Kras, 409 U.S.
434, 34 L. Ed. 2d 626, 93 S. Ct. 631 (1973). The Supreme
Court held in Kras that a filing fee for bankruptcy is not
unconstitutional even if set so high that some people cannot
afford it; and if one can be too poor to go bankrupt, the district
judge concluded, there is no possible constitutional objection
to a fee in litigation that imposes a "hardship" on one who is |
able to pay. Mann's appeal from this decision has [*7] been
docketed as No. 99-3595. Meanwhile the state appeal
proceeded, and the judgment dismissing the suit has been
affirmed. Mann v. Upjohn Co., 2001 Ill. App. LEXIS 531 (1st
Dist. June 29, 2001). Either Mann paid the fee under protest or
the state court decided to overlook the nonpayment. In neither
event is the federal case moot. If Mann paid, she could get the
money back if she were to prevail; and if Mann did not pay,
the state may dun her for the money, or the lack of payment
may impede review by the Supreme Court of Illinois (or
future appeals Mann may pursue, for she is a frequent filer).
Defendants contend that the district court's judgment on the
merits moots appeal No. 99-1750. For her part, Mann insists
that the district court lacked jurisdiction to adjudicate the
merits while No. 99-1750 was pending. Mann's position is
incorrect. Although an appeal usually deprives the district
court of jurisdiction to proceed, an appeal under 28 U.S.C. §
1292(a)(1) from the denial of an interlocutory injunction is an
exception to that norm. See Thomas v. Board of Education,
607 F.2d 1043 (2d Cir. 1979); Abramson v. University of
Hawaii, 594 F.2d 202 (9th Cir. 1979). [*8] So No. 99-1750
no longer matters, and that appeal is dismissed as moot.
(Because the final judgment automatically supersedes the
App. A - 6
denial of interlocutory relief, it is unnecessary to vacate the
earlier decision under United States v. Munsingwear, Inc., 340
US. 36, 95 L. Ed. 36, 71 S. Ct. 104 (1950).)
As for No. 99-3595: We decline the parties' request to reach
the merits. This case has no business being in federal court
and should have been dismissed immediately after its filing.
One reason is the Tax Injunction Act, 28 U.S.C. § 1341. Mann
characterizes the charge as a "tax," and if that is correct then § ~
1341 bars any federal interference if a plain and speedy
remedy is available in state court. Supreme Court Rule 298
offers one such remedy; asking the state's court of appeals for
relief from the charge is another. Mann pursued neither. If,
however, the charge is not a "tax" (and it hardly seems like
one; Mann does not contend that the congeries of fees charged
to litigants, including all filing and record-preparation charges,
is a net money-raiser for the state after all expenses of running
the judicial system have been accounted for) then [*9] §
1341 does not apply--but much of Mann's substantive
argument is sunk. So far as the federal Constitution is
concerned, it makes no difference whether fees go into the
state (or county) treasury, which then underwrites the judicial
system, or instead are deposited into a separate fund under the
control of the courts.
Whether the fee is a "tax" does not matter in the end, however,
because the district court should have abstained. This suit is a
replay of Pennzoil, in which Texaco, having suffered a large
judgment at trial in a state court, asked a federal court for
relief against the bond that state law required as a condition of
appeal. Texaco contended that the bond would serve as an
absolute bar to appeal under the circumstances, a more
grievous injury than the "hardship" of which Mann complains,
and the source of a better constitutional argument. See Lindsey
v. Normet, 405 U.S. 56, 31 L. Ed. 2d 36, 92 S. Ct. 862 (1972).
Still, the Supreme Court held, it would be inappropriate for a
federal tribunal to interfere with ongoing state litigation. See,
App. A -7
e.g., Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S.
Ct. 746 (1971); 28 U.S.C. § 2283. [*10] Texaco had to
present its constitutional arguments to the state judiciary, with
the option to seek review in the Supreme Court under 28
U.S.C. § 1257. Mann should have proceeded in the same way.
After the state's trial judge rejected her contention, she should
have sought review within the state system and then, if
necessary, by the Supreme Court of the United States. Instead
she bolted to federal district court, which under Pennzoil can
offer no relief.
Defendants have not sought abstention under Younger and
Pennzoil, but federal courts are entitled to abstain on their
own--not only to protect states from errors by their lawyers
(the State's Attorney of Cook County, representing the
defendants in this case, may not have the interests of the
whole State at heart), and to avoid unnecessary decisions on
constitutional questions, but also to protect themselves from
impositions of the kind that Mann has perpetrated. See
Mazanec v. North Judson-San Pierre School Corp., 763 F.2d
845 (7th Cir. 1985). Mann contends that the fee violates the
Constitution of Illinois as well as the Constitution of the
United States. That argument, presented [*11] to a state
court, could have avoided any need for federal decision, even
by the Supreme Court on certiorari under § 1257. Moreover,
the fact that the appeal in the state case has concluded does
not lift the abstention doctrine; one may not avoid a state
forum by waiting until its process has concluded. See Nelson
v. Murphy, 44 F.3d 497 (7th Cir. 1995). 5
These proceedings not only imposed on the federal courts (and
the defendants) but also appear to come within the scope of 28
U.S.C. § 1927:
Any attorney or other person admitted to
conduct cases in any court of the United States
or any Territory thereof who so multiplies the
App. A -8
proceedings in any case unreasonably and
vexatiously may be required by the court to
satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because
of such conduct.
Mann, an attorney, has multiplied these proceedings
unreasonably and, in an objective sense, vexatiously. See Jn re
TCI Lid., 769 F.2d 441 (7th Cir. 1985). The tort suit was filed,
dismissed, refiled, and lasted for five more years before it was
dismissed, on the date set for trial, because Mann [*12] _
refused to participate. Proceedings were marred by Mann's
failure to follow judicial orders concerning discovery and by
her generally inappropriate conduct. The state's appellate court
rebuked Mann for "inexcusable" abuse of opposing counsel as
well as "lack of cooperation ... in obeying court orders,
indifference to the trial court's advice and admonishments,
repeated attempts to delay the proceedings, and a failure to
follow the rules of proper procedure." The state portion of this
litigation included, in addition to the main case (filed twice
and unduly dragged out) and the original action in the
Supreme Court of Illinois, repeated efforts to disqualify a
judge. The federal portion has included the three suits we have
mentioned plus additional motions to disqualify, requests for
sanctions (Mann's motions were denied and she was ordered
to pay $ 100 to the defendants under Fed. R. Civ. P. 11), and
the two appeals from No. 98 C 8004 plus post-judgment
motions practice in No. 98 C 6078. One suit has been turned
into six, each characterized by needless contretemps.
We therefore direct Mann to show cause, if any she has, why
she should not be ordered "to satisfy personally the excess
[*13] costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct." We limit this order to costs and
expenses the defendants have incurred in the federal portion of
the litigation. Mann may file her response within 14 days.
Within the same time, defendants should file with the court an
App. A-9
estimate of the total expenses they have incurred in both the
district court and this court. This should include an estimate of
the market value of the services provided by their in-house
legal staffs. See Central States Pension Fund v. Central
Cartage Co., 76 F.3d 114 (7th Cir. 1996).
Appeal No. 99-1750 is dismissed as moot. On appeal No. 99-
3595, the judgment of the district court is vacated, and the
case is remanded with instructions to abstain. An order to
show cause will be entered, returnable within 14 days.
App. A(a) -1
BEVERLY B. MANN, Plaintiff-Appellant, v. DOROTHY
BROWN, Clerk of the Circuit Court of Cook County, Illinois,
and COOK COUNTY, ILLINOIS, Defendants-Appellees.
Nos. 99-1750 & 99-3595
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
August 31, 2001
Before:
Hon. Frank H. Easterbrook, Circuit Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Michael S. Kanne, Circuit Judge
Pursuant to this court’s unpublished final order issued on this
date, appellant Beverly B. Mann is directed to show cause, if
any she has, why she should not be ordered "to satisfy
personally the excess [*13] costs, expenses, and attorneys’
fees reasonably incurred because of such conduct." We limit
this order to costs and expenses the defendants have incurred
in the federal portion of the litigation. Mann may file her
response within 14 days. Within the same time, defendants
should file with the court an estimate of the total expenses
they have incurred in both the district court and this court.
This should include an estimate of the market value of the
services provided by their in-house legal staffs. See Central
States Pension Fund v. Central Cartage Co., 76 F.3d 114 (7th
Cir. 1996).
App. A(b) — 1
This is the state-court order upon which much of the federal
appeals court’s orders were premised. The order incorrectly
identifies 705 ILCS 105/27.2a(k)(4) as 735 ILCS
105/27.2a(k)(4).
Beverly Mann,
Plaintiff,
v. No. 92 L 13054
The Upjohn Company,
Defendant.
ORDER
This cause coming on to be heard on plaintiff's motion
for leave by the parties to jointly remove most documents
from the court record, or, alternatively, to find
unconstitutional subsection (k)(4) of the Illinois Clerk of
Court’s Act, 735 ILCS 105/27.2a(k)(4), it is ordered that:
1. The court states that it is reiterating that it is declining
to hear the constitutional challenge because the
constitutional challenge was not part of, and is
collateral to, the underlying products liability lawsuit.
2. The motion to remove document from the record is
denied on the basis that the court lacks the authority to
allow it.
Atty No.: 99500 Enter: Judge Susan Zwick
Nov. 20, 1998
Name: B. Mann Circuit Court — 1617
Attorney for: Plaintiff Judge Judge’s No.
Address: 7261 N. Campbell
City /Zip: Chgo 60645
Telephone: 773-465-4587
App. B -1
BEVERLY B. MANN, Plaintiff-Appellant, v. DOROTHY
BROWN, Clerk of the Circuit Court of Cook County, Illinois,
and COOK COUNTY, ILLINOIS, Defendants-Appellees.
Nos. 99-1750 & 99-3595
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
September 19, 2001
Before:
Hon. Frank H. Easterbrook, Circuit Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Michael S. Kanne, Circuit Judge
Order
The response to our order to show cause spends a great
deal of time expressing dissatisfaction with the rulings of both
state And federal courts in this case, but it does very little to
justify the filing of three Federal lawsuits seeking review of
decisions made in, or matters, affecting, a products-liability
case ongoing instate court. To the extent the response offers
explanations (such as ignorance of Pennzoil and the Tax
Injunction Act), these are not justifications. Counsel is obliged
to research the law before filing suits. We therefore conclude,
for reasons narrated in our order of August 31, 2001, that
attorney Mann has multiplied the litigations unreasonably and
vexatiously, and must personally pay the costs and legal fees
that resulted.
The statement of costs and fees submitted by the
defendants is modest. They seek compensation for only 28
App. B - 2
hours of legal work, which covers proceedings in both the
district and this court. The hourly fee requested, $185, is
appropriate to practice in Chicago.
Accordingly, and on the authority of 28 U.S.C. § 1927,
Beverly Mann is ordered to pay $5,180.00 to the Office of the
State’s Attorney of Cook County. This amount must be paid
within 14 days, and proof of payment must be filed with the
clerk of this court.
App. C -1
BEVERLY B. MANN, Plaintiff-Appellant, v. DOROTHY
BROWN, Clerk of the Circuit Court of Cook County, Illinois,
and COOK COUNTY, ILLINOIS, Defendants-Appellees.
Nos. 99-1750 & 99-3595
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
October 16, 2001
Before:
Hon. Frank H. Easterbrook, Circuit Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Michael S. Kanne, Circuit Judge
ORDER
The following are before the court:
1. NOTICE TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
AND/OR REQUEST FOR LEAVE TO FILE
RULE TO SHOW CAUSE, FILED ON OCTOBER
11, BY COUNSEL FOR THE APPELLEES.
2. RESPONSE TO NOTICE TO THE UNITED
STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT AND/OR REQUEST FOR
LEAVE TO FILE RULE TO SHOW CAUSE,
FILED ON OCTOBER 15, BY THE APPELLANT
PRO SE.
App. C -2
On September 19, 2001, this court ordered the appellant
Beverly Mann to pay $5,180.00 to the Office of the State’s
Attorney of Cook County within 14 days and file proof of
payment with the clerk of this court. To date, the appellant
has failed to make the required payment. The clerks of all
federal courts in this circuit are directed to return unfiled any
papers submitted either directly or indirectly by or on behalf
of Beverly B. Mann unless and until she pays in full the
sanction that has been imposed against her. In accordance
with our decision in Mack, exceptions to this filing bar
are made for criminal cases and for applications for writs of
habeas corpus. Beverly B. Mann is authorized to submit to
this court, no earlier than two years from the date of
this order, a motion to modify or rescind this order.
App. D-1
United States District Court
Northern District of Illinois
Eastern Division
Beverly B. Mann JUDGMENT IN A CIVIL CASE
V. Case Number 98 C 8004
Dorothy Brown, et al
Jury Verdict. This action came before the Court
for a trial by jury. The issues have been
Tried and the jury rendered its verdict.
e Decision by Court. This action came before the
Court. The issues have been tried or heard and a
decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that there
being no Federal Jurisdiction, this case is hereby
dismissed.
Michael W. Dobbins, Clerk of Court
Date: 10/19/2001
Wanda Parker, Deputy Clerk
App. E- 1
In the
United States Court of Appeals
For the Seventh Circuit
In re: Beverly B. Mann )
)
Nos. 99-1750 and 99-3595 )
(Corrected) Response to Rule to Show Cause
This court has issued a Rule to Show Cause why I should
not be ordered “to satisfy personally the excess costs,
expenses, and attorneys’ fees incurred because of” the conduct
the court alleges in its Rule 53 Order. Much of that conduct
allegedly occurred in my underlying state-court products
liability lawsuit, which stemmed from my use of the
prescription drug Halcion, manufactured and marketed by The
Upjohn Company, the defendant in that litigation.
But the Rule 53 Order’s summary of procedural rulings and
events in the underlying state-court lawsuit contains numerous
significant factual inaccuracies. E.g., I did not file the initial
products-liability lawsuit in federal district court; Upjohn
removed it there. And the lawsuit was voluntarily dismissed
in federal court upon motion by my attorney at the time, Paul
R. O’Malley, for reasons utterly unrelated to discovery:
O’Malley wanted to add a defendant, my prescribing
physician, whose joinder would destroy federal diversity
jurisdiction and allow the case to be heard in state court where
he wanted it heard. The dismissal order itself explicitly
provided for leave to refile in state court within 60 days
adding the physician as a defendant.
Discovery was not a controversy at that early stage, much
less the reason for the voluntary dismissal. Nor was I
ever barred as a discovery sanction from presenting any
App. E-2
particular evidence, nor ever threatened by the court with a
discovery sanction of any type.
I won’t even bother to point out that under 28 U.S.C. §451,
the term “court of the United States” as used in §1927 refers
only to federal court, not to state court, and that §1927 doesn’t
authorize a federal court to impose sanctions based in part on
events (even real ones) that occurred in state-court litigation.
Not even when the federal court liquefies the two lawsuits into
one for purposes of dismissing the federal case.
But I do recommend the issuance of a Miranda-type
warning, something like: Every-thing you say or that someone
says about you in state court can and will be used against you
in a federal appeals-court of law. In the 7” U.S. Circuit
appeals court, anyway.
Some of this court’s inaccuracies about the underlying case
are adopted or construed (and in two important respects
misconstrued) from the state appellate court’s still-unofficial
opinion,’ which itself contains numerous misrepresentations
about the contents of certain court orders and about certain
other procedural events. These are distortions so stark that
they approach outright fabrication; e.g., certain motions that
the opinion implies were granted actually were denied (and
the reverse), and the opinion represents specific judicial
| filed an affidavit with the appellate court advising that I
plan to file a petition with the Iliinois Supreme Court pursuant to
Supreme Court Rules 317 and 315. There are several points, but
what entitles me to review as a matter of right under Rule 317 is
that the appellate court failed to review the merits of the summary
judgments entered on three counts well before the remaining counts
were dismissed for want of prosecution, the propriety of which
implicates due process and equal protection guarantees. I attach a
copy of the 20-page Petition as Exhibit 1.
App. E-3
findings as directly contrary to actual statements in written
memorandum orders.
An easily illustrated example is the opinion’s statement that
“{ojn January 28, defendant filed a motion to have facts
deemed admitted based on plaintiff's failure to answer
defendant's request for admissions.” Indeed Upjohn did file —
such a motion, but the motion was denied because it was
established that due to an error by a substitute secretary during
Christmas week, Upjohn’s lawyers didn’t serve me with a
copy of the request and I didn’t know of it until I received
notice of the motion; the substitute secretary to the attorney
responsible for mailing copies of several documents that were
filed on December 27 had failed to include in the envelope a
copy of the request for admissions.
The envelope did include a summary judgment motion, to
which I responded before Upjohn filed its motion on the
request for admissions, and a large set of interrogatories
(Upjohn’s eighth set, I believe, after several were stricken
upon my motion), to which I also had responded — by
answering some of them and successfully objecting to others —
before Upjohn filed its admissions-motion. After Upjohn’s
admissions-motion was denied, I promptly filed a blanket
objection to the entire request. The objection was sustained
and the request, like several earlier ones, was stricken.
The incident was irrelevant to the appeal and was included
in the opinion solely to mislead that the motion was granted
rather than denied.” Both parties in that lawsuit timely
? This court plays a similar game, e.g., in its throwaway
reference to the $100 sanction Judge Leinenweber imposed, the
unelaborated mention of which misleads that the sanction concerned
the substance of the lawsuit and that it was imposed after the
issuance of the Rule’s required formal notice and opportunity to
respond in writing, and that it was justified. But I had appealed
App. E-4
objected to various discovery demands. Neither party’s
discovery objections were ever ruled frivolous. In 1996 and
°97, I moved successfully to strike one after another after
another set of interrogatories/requests for admissions — each
set containing approximately 200 interrogatories and a very
substantial number of generic requests for admissions, which
Upjohn served routinely in Halcion litigation. My sustained
objections: uiat these discovery requests were redundant of
earlier-completed discovery, that they were vexatious, and that
they were served in violation of an Illinois Supreme Court
Rule limiting the number of interrogatories to 35 without
leave of court. I also moved successfully to quash several
subpoenas (including one seeking a copy of my law school
records, which I learned of only when an attorney for the
University phoned me and asked whether I wanted the school
to contest the subpoena on my behalf and on the school’s.)°
from the sanction order, which (if only in theory) barred this court
from presuming without examination that it was appropriately
issued.
> Another of the subpoenas was for the deposition of my
sister’s former husband, a gynecologist who after graduating from
Northwestern University Medical School in 1969 moved with my
sister to Denver, where he completed his medical training. He has
never practiced medicine anywhere but Denver, and I have never
lived in Colorado, yet Upjohn said it needed his deposition because
I might have seen him as a patient. I had not claimed gynecological
injury from my use of Halcion, nor do I have a medical history of
gynecological problems. My sister and her former husband,
incidentally, were divorced in 1975, and she and her current
husband have lived in Seattle since 1987. Suffice it to say I easily
had her ex-husband’s subpoena quashed — as I did a deposition
subpoena served on her current husband, who has never lived in
Chicago, and a deposition subpoena served on my other sister’s
husband, who has lived (with my sister) in Houston since 1983.
As for the subpoena for my law school records, the notice of it
was sent to O’Malley’s office, but O’ Malley didn’t know about it
because (incredibly, in my view) neither he nor his associate
App. E-5
Upjohn wanted to depose everyone I had ever known (well,
there were a few of my former kindergarten classmates whose
names did not appear on their deposition list). And in August
1997, I moved successfully to quash a mass effort by Upjohn
to secure via written “evidence deposition” the testimony of
virtually every physician I had ever seen; it wasn’t quite clear
how, exactly, I was to attend the written evidence
depositions.‘
The federal judge’s voluntary-dismissal order had required
that I respond within a specified time (14 days, I think) to a
lengthy set of interrogatories Upjohn had served upon me
shortly before the dismissal. I happened to be out of town at
the time, and O’Malley faxed me the interrogatories, which I
answered and then Fed Ex’d back to him. (The notary’s
stamp on my answers read “King County, WA.”) Yet no
sooner was the lawsuit refiled than did Upjohn’s lawyers serve
me with another lengthy set of interrogatories. O’ Malley
objected on the grounds that they were almost entirely
duplicative of the ones I already had answered. The objection
was not sustained, I was ordered to answer the
routinely reviewed subpoena notices; the office receptionist was ‘
instructed simply to place those notices in the appropriate case file
upon their receipt. It was this incident, in June 1996, that caused
my already strained relationship with him to sever.
* “Evidence deposition” is a term of art, and something of a
misnomer, in Illinois law. It differs from a discovery deposition (a
non-evidence deposition?) in that its supposedly sole purpose is as
verbatim trial testimony and, with limited exceptions, objections not
made during an evidence deposition are deemed waived at trial.
Discovery depositions, by contrast, under Illinois law cannot be
used as verbatim trial testimony. Evidence depositions are allowed
only by court order, the grounds for which must be the anticipated
unavailability of the witness at trial, a circumstance that Upjohn did
not (and could not) claim regarding even a single one of the targeted
deponents. And for obvious reasons, there is no rule in Illinois
permitting written evidence depositions.
App. E-6
interrogatories, and I did. No sanction of any type was issued
then, or — I reemphasize — at any other tine in that litigation.
No, most of the controversy in that litigation — and the one
that ultimately caused me to request that the case be dismissed
for want of prosecution — concerned not any failure to provide
information in discovery but my failure to retain paid opinion
witnesses, which I maintained I did not need in order to prove
my case. The controversy, in other words, was not about my
failure to disclose witness’ s identities or to produce
documents but about my failure to pay opinion witnesses.
That was it, pure and simple. And should this court doubt
this, I am providing in an accompanying appendix.a copy of
the Table of Contents and the Points and Authorities table
from my opening brief in that appeal. And I can provide on
disk or in hard copy all four briefs filed in that appeal, if this
court would like.
The paid-opinion-witnesses issue also was the subject — the
only subject — of the petition for temporary restraining order I
filed in federal court in October, 1997, that so enrages this
court.
It also was a central part of my appeal, although as is SO
typical of appellate opinions the state-court opinion doesn’t
mention it. Instead it cites a litany of allegations and presents
them inaccurately as sustained by the trial court, apparently on
the legal premise that any accusation a defendant makes
against a pro se plaintiff is by definition accurate, at least
when removed from its context (as most of the enumerated
items are). But almost none of the items was addressed in the
briefs to that court, and since the court knew of the allegations
it also knew (or should have known) of my responses to them,
and of the trial court’s determinations concerning the allega-
tions, and of the reasons for the trial court’s determinations,
none of which buttressed the opinion’s premise.
App. E-7
For example, the court utterly misrepresented the nature
and significance of one ruling by writing, “On February 19,
the trial court granted defendant's motion to bar fact
witnesses.” The intended inference, of course, was that all
my fact witnesses were stricken. But that is nonsense. The
motion was a typical pretrial motion seeking to bar certain
named trial witnesses. I no longer recall the details, but by no
means all of my fact witnesses were stricken; I think only two
of them were. And I had some of Upjohn’s witnesses
stricken, too.
In most litigation about to proceed to trial, names of
witnesses are stricken on pretrial motion. So, the hell, what?
This wasn’t an issue on appeal and therefore was not
addressed in the briefs. The court mentioned the February 19
order because it wanted to mislead; an honest recounting of it,
as with an honest recounting of so much else in that case,
would have been pointless or, worse, self-defeating.
That court perverts into parody the legal construct that
appellate courts can affirm upon any grounds found in the
record. As does this court, it redefines the phrase “grounds
found in the record” as any statement that appears in any
document in the record, however unsupported and even if
overtly rejected by the trial court. It designates the
defendant’s lawyers as factfinder, as the lawsuit’s diarist, as
the font of true observation, and whatever they write may
properly be adopted, unexamined, by the court.
And any sentence in a court order can be extracted, in or
out of its context, and adopted unscrutinized and without
elaboration, as needed. This court knows the routine: The trial
court entered summary judgment/a sanction order/a discovery
order/a ... order; therefore the summary judgment/the sanction
order/the discovery order/the ... order is affirmed.” -
App. E-8
Or: The trial court entered summary judgment/a sanction
order/a discovery order/a ... order; therefore an order that
piggybacked on the summary judgment/the sanction order/the
discovery order/the ... order is affirmed.
No need to examine the truth of the allegation or the
propriety of the foundational order even when it is being
appealed.
I call it a house=of-cards, although in criminal-law lingo |
think it’s known as a Ponzi scheme.
Most astonishing about the state-court opinion is the
extraordinary degree to which that court freelanced through
the huge (and expensively prepared) court record, recasting
utter irrelevancies in a starkly false light.” I address some
additional instances in detail in Exhibit 1, attached.
But of more immediate importance is that this appeals
court in its Rule 53 Order makes several key errors,
particularly concerning Illinois law regarding: (1) the
appealability of two orders (which this court erroneously calls
judgments) entered in the state-court case respectively on
September 28 and November 19, 1998, on the file-
preparation-fee matter; (2) whether under Illinois law my fees-
challenge lawsuit and the underlying products-liability one
really are the same case and therefore a replay of Pennzoil v.
Texaco; (3) whether Illinois appellate courts have the
authority to waive or reduce the file-preparation fee; (4) the
effect of a denial by the Illinois Supreme Court of a Rule 381
petition, and the resulting effect on the issue of comity; and
* | include in the appendix my two three-page motions
concerning the attorney-eye-surgery incident that that court calls
inexcusable. This court can, if it wishes, read the motions and draw
its own conclusion.
App. E-9
(5) the constitutional structure in Illinois for funding the
county and appellate courts.
This court also misconstrues the nature of my federal
constitutional challenge. I think that in part this is because the
court misapprehends Illinois’ constitutionally-determined
funding structure for the courts; the graduated ceilingless fees
are paid not to the state, although it is the state alone that
funds the trial and appellate court systems, but to the counties,
which fund no part of the court systems. And in part it is
because no judge or court-staff member read my briefs —
which, incidentally, did address the funding-structure
question. (Had the Rule 53 Order’s author read my briefs he
would know, for example, that I did pay the $1,635 record-
preparation fee — not to the state but to the county, as per the
law I was challenging. Although the state alone funds the
courts it plays no role whatsoever in the collection or use of
the fees, a primary basis for my lawsuit. So much for this
court’s contention that the Cook County State’s Attorney’s
office failed to assert certain defenses because it did not have
the interests of the state at heart; the state had no interest at
heart, but the county did.)
Instead, a law clerk was assigned to summarize my
arguments as filtered through the appellees’ briefs, as is
standard procedure for appellate review, or faux appellate
review, in pro se civil lawsuits. A foolproof strategy for an
appellee contesting a pro se appeal is to not even mention the
appellant’s strongest arguments; it works every time.
Or so, as a frequent filer, is appears to me.
I. The Fee-Challenge Lawsuit
This court misunderstands the essential premise of my
federal lawsuit, which is that a graduated, ceilingless appellate
fee determined by the size of the court record irrespective of
App. E-10
the relevance of most of the record to the issues being
appealed, and paid not to the state (which alone funds the
county court systems in Illinois) but instead to the county
itself (which pays nothing toward the cost of running the court
system), irrationally requires appellants whose court files are
large to pay unduly to support the county government albeit
not the state government and therefore not the trial or
appellate court system.
A. Under Illinois law, the September 28 and
November 19, 1998, state-court orders on
the fee challenge were not appealable.
This court derides my claim that the September 28 and
November 19, 1998, orders issued by Cook County Circuit
Judge Susan Zwick were not final orders with res judicata
effect. Deride though it might, this court presumes
incorrectly; under Illinois law those orders were not
appealable and they had no legal effect other than to bar the
fee-challenge from being litigated as part of the products-
liability lawsuit.
This court attributes to Judge Zwick its own view, which
ridicules my fee-challenge motions as an inappropriate effort
to convert the products-liability case into some new
constitutional claim. Ridicule though it does, the court
misconstrues the nature of Judge Zwick’s orders as
determined by Illinois law. Zwick found my motions
inappropriate not because they asserted a constitutional
challenge to the record-preparation fee for appeal in the
products-liability lawsuit but because under IIlinois law the
constitutional challenge could be brought only in a separate.
lawsuit. And under Illinois law, as long as there exists the
option to file a separate lawsuit, such orders are not
appealable. See, e.g., by analogy, S.C. Vaughan Oil Co. v.
Caldwell, Troutt & Alexander, 181 Ill. 2d 489, N.E.2d 338
(1998), holding that orders denying motions to vacate
App. E-11
dismissals for want of prosecution are not appealable as long
as the plaintiff could refile within one year under 735 ILCS
5/13-217.
The motion I presented at the September 28 hearing was to
compel the release of the already-prepared record on appeal.
It invoked specific provisions of the Illinois state constitution
but not the United States Constitution. Judge Zwick expressly
declined to consider the constitutional challenge to the
statutory subsection at issue, 705 ILCS 105/27.2a(k)(4). She
said I would have to file another lawsuit in order to challenge
the constitutionality of the fees statute. She also said she
knew of no statute or Supreme Court Rule other than Rule 298
that would allow her to compel the release of the record
without the payment of the preparation fee. As per normal
procedure there, I drafted the order. I wrote that the motion
was denied.
At the November 20 hearing, the motion I presented to
Zwick requested the severance of portions of the record for
preparation for appeal. The motion sought alternatively a
finding that the fees statute violates three provisions of the
Illinois state constitution. That motion, like the earlier one,
included no federal constitutional claim.
But it did include a section titled “The Procedural and
Jurisdictional Basis for this Motion,” which read:
As Mann understands it, there are essentially two
methods by which the constitutionality of a statute may be
challenged. Anyone with legal standing to challenge the
statute (i.e., anyone in reasonably imminent danger of
suffering harm because of the statute) may do so by filing
an independent proceeding with a court; e.g., a petition for
mandamus or prohibition. If the statute pertains to
litigation, persons who are litigants in a proceeding
effected by the statute may also file a motion seeking relief
App. E-12
from compliance with the statute via a finding that the
statute is unconstitutional.
It was the latter method that was employed recently to
obtain a court ruling finding particular sections of the
Illinois Tort immunity Act, and ultimately the Act itself,
unconstitutional. To wit: Kunkel v. Walton, et al., No.
81176 (Nov. 20, 1997); Best v. Taylor Machine Works,
Nos. 81890, 81891, 81892, 81893 cons. (Dec. 18, 1997);
Hettinger v. Krah, 95 L 601(not a Cook County case)....
.... In Kunkel, supra., and Hettinger, supra., for example,
the plaintiff filed a personal injury lawsuit and then
challenged the section of the Tort Reform Act requiring the
plaintiff to allow the defendant indiscriminate access to the
respective plaintiff s lifetime medical records without
regard to their relevance to their lawsuit, upon sanction of
dismissal of the lawsuit. The plaintiffs each challenged the
constitutionality of the statute, not collaterally in a different
court proceeding but directly in motions brought within
their respective underlying lawsuits.
The ultimate relief they sought was the ability to
proceed with their lawsuits without complying with the
statutory mandate that they waive all rights to medical
privacy. The avenue by which they obtained such relief: a
finding by the court (the circuit court, affirmed on appeal)
that the statute at issue violated Article I, Section 2, of the
Constitution of the State of Illinois. The court declared the
statute unconstitutional, thus granting them the ultimate
relief they sought; they were allowed to proceed with their
lawsuits without indiscriminately waiving their medical
privacy rights.
In Kunkel and Hettinger, the plaintiffs could obtain the
ultimate relief they sought simply by a single action of the
court. Once the court found the challenged statute
App. E-13
unconstitutional, the court allowed the lawsuits to proceed
without the statutorily mandated waivers.
The judge agreed with my premise. She read aloud a
paragraph from an Illinois Supreme Court opinion (I think it
was from Kunkel) which said the trial judge has the
discretionary authority to exercise jurisdicticn to hear
constitutional issues collateral to the litigation. She said she
was exercising her discretionary authority to decline to
exercise jurisdiction to hear the constitutional challenge,
partly because the County was not a defendant in the
products-liability case. (Their counsel did appear at the
hearing, but only because I had requested her presence.)
Again the judge told me to “file another motion.” She also
said I had misconstrued her earlier ruling when I drafted the
September 28 order: She had not denied the constitutional
challenge; she simply had declined to exercise jurisdiction to
hear it. And she denied my request for severance of portions
of the record. She dictated the precise language for the order,
which reads:
1. The court states that it is reiterating that it is
declining to accept jurisdiction to hear the
constitutional challenge because the constitutional
challenge was not a part of, and is collateral to, the
underlying products liability lawsuit.
2. The motion to remove documents from the record
is denied on the basis that the
court lacks the authority to allow it.
Her two orders, as they concerned the constitutional
challenges, were similar in nature to ones that sever some
counts in a complaint or that deny a discretionary joinder
motion, orders that are non-appealable, at least under Illinois
law, as long as no substantive rights are affected. Orders that,
even if appealable, are not judgments and do not bar the
App. E-14
litigation of the issues in a separate lawsuit if that is the choice
of the litigant.
Judge Zwick neither intentionally nor inadvertently
precluded my right to litigate the issue. She just denied me
the forum of the products liability case in which to litigate it.
By reading from (I think) Kunkel, she said she could have
exercised jurisdiction to hear the matter but that she chose not
to. She never suggested that she thought I was making an
inappropriate effort to convert the products-liability case into
some new constitutional claim. She said I had a constitutional
claim, stemming from my appeal in the products-liability
lawsuit, but that she would not hear the claim as part of the
products-liability lawsuit although she could if she chose.
This court, citing Federated Department Stores, Inc. v.
Moitie, 452 U.S. 394 (1981), writes, “This suit could have
been dismissed on preclusion grounds; a disappointed litigant
must appeal, rather than file another suit, even if
developments after entry of the first judgment show that the
decision was incorrect.”
But under Illinois law there was no judgment — none
whatsoever. There was only an order declining to accept
jurisdiction to hear the fee-challenge as part of the products-
liability case. This court’s citation to Moitie follows
immediately the court’s reference to my Rule 60(b) motion in
98 C 6078, and I’m not sure whether the Moitie citation is
intended as a res judicata finding on the dismissal of 98 C
6078 as well as on Judge Zwick’s orders. But 98 C 6078 was
dismissed not on the merits but on jurisdictional grounds that
no longer existed by the time I filed 98 C 8004, and Moitie
finds a res judicata bar only to the refiling of a claim already
decided on its substantive merits. Moitie barred only my
relitigation of the jurisdictional issue on which the district
judge based the judgment in 98 C 6078, and I was not trying
to relitigate that issue, which no longer was relevant.
App. E-15
This court’s Rule 53 Order puzzles me with its citation to
Mazanec v. North Judson-San Pierre School Corp., 763 F.2d
845 (7" Cir. 1985), to support its sneer that “federal courts are
entitled to abstain on their own ... to protect themselves from
impositions of the kind that Mann has perpetrated.” Nearly
every paragraph of Mazanec undermines this court’s premise.
For example, Mazanec treated as a threshold question the
appealability of an abstention order in the jurisdiction where it
was issued. And after noting that in this circuit (where the
abstention order was issued in that case), orders granting
abstention are appealable as final orders and orders denying
abstention before final judgment are not appealable, that
opinion commented that the latter are no more final than are
orders denying motions to dismiss under Fed. R. Civ. P.
12(b)(6).
In my case, Zwick’s abstention orders were no more final
than was the order at issue S.C. Vaughan Oil Co. | know of
no Illinois legal authority that suggests otherwise.
If this court does, it should cite to me that authority and
allow me to address it before I am sanctioned for litigating the
fees issue in federal court. I did discuss in the federal
litigation the question of issue-preclusion, in the documents |
filed with the district court (see the first paragraph of Section
C below) and in my appellate briefs.
I did not ignore the issue; this court ignored what I wrote
about it.
This court chides the State’s Attorney’s office and Judge
Leinenweber as well as me for our collective failure to see an
issue-preclusion bar. But the State’s Attorney’s office is
familiar with “the preclusive effect of an Illinois state court
judgment” and with what “that state’s res judicata
App. E-16
requirements” are, see People ex rel. Burris v. Progressive
Land Developers, Inc., 151 Ill. 2d 285 (1992), as is Judge
Leinenweber, a former Illinois state legislator and chair of a
legislative committee that drafted Illinois’ completely
revamped civil practice statutory scheme in 1982. As was | in
the fall of 1998, when I litigated the matter.
Which is why none of us found Judge Zwick’s September
28 order as amended by her November 19 order, nor her
November 19 order itself, a judgment with res judicata effect
under IIlinois law. Or under IIlinois law a judgment at all.
B. This court holds inexplicably that Art. III
standing to challenge the constitutionality of a
state court-fees statute itself bars a federal
constitutional challenge in federal court, an
untenable and circular legal position.
This court also questions Judge Leinenweber’ s belief
that I was challenging the constitutionality of the fee statute
itself rather than the state judicial system’s application of the
statute to my appeal. But this court appears to base its
conclusion on this point solely upon my Art. III standing to
challenge the fee statute, an untenable and circular legal
position.
In my brief in 99-3595 at p. 4, | wrote, “The statute
applies to all types of cases, including criminal, dissolution of
marriage, child custody, adoption and probate, as well as to
personnel injury and products liability lawsuits.” I had written
the same in my brief in 99-1750 and in most of the documents
I filed with the district court.
And in my brief in 99-3595 at pp. 30-31, I wrote in a section
titled “The Public Has a Strong Interest in Providing Access to
Appellate Review Irrespective of a Party’s Financial Ability to
Pay a Four-Figure Tax”:
App. E-17
The public has a substantial interest in the ultimate
determination of the constitutional issues presented in this
lawsuit. As Mann noted above, the fees schedule at issue
applies in every type of litigation in Illinois state court,
civil and criminal. Mann does not challenge the district
court’s premise that litigants must be prepared to pay the
reasonable expenses of litigation. She does challenge the
constitutionality of a statute that requires litigants to pay
litigation expenses that are neither reasonable nor
inherently necessary but, rather, artificially erected by the
government.
Civil litigation is almost always very expensive. Hourly
attorneys’ fees have a market rate set mainly by large
corporate clients and are virtually always in the three-
figure-per-hour range. Court reporter fees also are
substantial; court reporters attend approximately two years
of school tc gain the special skills that enable them to
perform their service and then must purchase the very
expensive equipment and (these days) computer software
necessary to their job, and their fees reflect this. These are
non-artificial (if not always reasonable) expenses of
litigation.
But the district court’s premise is preposterous that this
justifies the government’s assessment of the artificial fees
at issue in this lawsuit.
Mann also believes that the fees schedule creates and
inherent conflict of interest for attorneys representing
clients upon a contingent-fee arrangement. In such
circumstances, the attorney usually has agreed to pay the
expenses of the litigation during its pendency and to deduct
those expenses from the eventual monetary reward, if any.
It seems likely to Mann that the prospect of a prerequisite
court-fees payment of perhaps thousands of dollars may
App. E- 18
impact upon the advice the attorney gives the client
regarding the advisability of appeal.
Having silently conceded the inevitability of a chasm
between the actual stated grounds in a pro se civil appeal and
what (after translation by a law clerk) passes as the court’s
summary of it, this type of thing no longer jolts me; I expect it
of the court, and the court doesn’t disappoint.
But the threat or imposition of sanctions (and certainly of
sever ones, as this court plans to impose on me) are another
matter entirely. Particularly so given that this court apparently
bases its sanctions assessment partly on my standing to
challenge the fee statute — not on my lack of it but on my
possession of it.
The court says (as I understand it) that standing to
challenge the fee statute operates as a nearly irrebuttable
presumption that the constitutional challenge concerns the
statute’s application only to that plaintiff's underlying case.
Only if the plaintiff must pay the fee in order to appeal from
an already issued judgment does she have standing under Art.
III to challenge the fee’s constitutionality. And because she is
challenging the fee’s constitutionality by virtue of the
assessment of the fee in her appeal, she is presumed to be
challenging its constitutionality only as applied in her case.
The presumption can be rebutted (presumably) only by
filing a petition for class certification. But I lacked the
funding and the legal expertise to litigate a class action. So
according to this court I was not challenging the statute’s
constitutionality but only its constitutionality in my situation.
No matter that a finding of unconstitutionality in my
situation effectively would have stricken the statute in all
situations, just as occurred in Kunkel and Taylor Machine
Works. It was not the nature of my claim but my failure to
App. E-19
seek class status for it that bars my access to federal court and
that subjects me to sanctions for proceeding with the matter in
federal court.
How absurd.
The fee statute is neither vague nor susceptible of varying
interpretations depending upon the circumstances — even less
so, in fact, than was the statute in Mazanec. If the fee statute
was unconstitutional in my case it was unconstitutional —
period. Which is exactly what I argued to the district court
and to this court, e.g., at pp. 26-27 of my brief in 99-3595,
where I wrote:
Because Cook County reaps a substantial monetary
windfall as a result of §105/27.2a(k)(4), the subsection is,
by definition, a general-revenue tax upon what is a very
small subgroup of county residents: appellants in cases in
which there is a large court record. No legitimate
governmental purpose exists for the levy of this general
revenue tax.
For Mann, this statute has required her to pay
approximately $1,400 (the amount of her payment beyond
the approximate cost to the county of the preparation of her
court record for appeal) to support the general expenses of
county government. There is no connection between the
requirement of this payment and any legitimate
justification for it.
The basis for this constitutional challenge obviously
does not rest upon the financial resources of the appellant;
it is equally available to any appellant whose court record
is large, irrespective of the litigant’s net worth, whether a
homeless person living on the curbside of lower Wacker
Drive, or Beverly Mann, or Abra Rockefeller Prentice.
App. E-20
Nor, incidentally, did I arbitrarily select the $150 that the
court says I was willing to pay, but no more. The $150
amount was selected for me; it’s the initial amount that
pursuant to another subsection of the statute must be paid.
The subsection I was challenging kicks in as a per-page
ceilingless fee if the court file is larger than 200 pages. |
challenged that subsection but not the one that assesses the
$150 fee. Had the latter subsection assessed a $250 fee or
$500 fee or even a $750 fee, I’d have paid it. But no more.
C. Under Illinois law, my federal lawsuit and the
underlying one are not the same case and
therefore not a replay of Pennzoil v. Texaco.
In my amended complaint and mandamus petition, I quoted
the following from Retired Chicago Police Assn. v. City of
Chicago, 7 F.3d 584 (7" Cir. 1993): :
To assess the preclusive effect of an Illinois state court
judgment, therefore, we must apply that state’s res
judicata requirements. Under Illinois law, an action is
barred by res judicata when there exists: “(1) a final
judgment on the merits rendered by a court of
competent jurisdiction; (2) an identity of cause of
action; and (3) an identity of parties or their privies.”
People ex rel. Burris v. Progressive Land Developers,
Inc., 151 Ill. 2d 285, 602 N.E.2d 820, 825, 176 Ill. Dec.
874 (Ill. 1992); see also Welch v. Johnson, 907 F.2d
714, 720 (7th Cir. 1990) (stating same).
Irrespective of whether this court agrees with me that Judge
Zwick’s September 28 and November 19 orders were similar
to ones that sever some counts in a complaint or that deny a
discretionary joinder-motion and that they therefore did not
bar litigation of the fees issue in a separate lawsuit, and setting
aside the matter of identity of causes of action between the _
products-liability lawsuit and the fees-challenge lawsuit, it is
App. E-21
indisputable that there existed no identity of parties or their
privies in the federal and state-court actions.
Nor does this present a merely technical, and therefore
perhaps insufficient, distinction between my cases and
Pennzoil v. Texaco, the case this court finds determinative.
The bond at issue in Pennzoil, and the statute that required its
payment, were solely for the benefit of Pennzoil, not for the
benefit of the government entity to which the bond would be
paid. The bond money represented the monetary judgment
that was to be appealed, and the government entity would hold
the bond money in escrow solely for the benefit of Pennzoil,
which had won the judgment.
It is no artifice to note that the petitioner to the Supreme
Court in Pennzoil was, well, Pennzoil, not the government
entity to which ‘ »2 bond was to be paid. The government
entity was neither a party nor a party-in-interest to that
proceeding; it had no financial or other interest in the outcome
of the Supreme Court case. Indeed the Pennzoil opinion
begins:
The principal issue in this case is whether a federal district
court lawfully may enjoin a plaintiff who has prevailed in a
trial in state court from executing the judgment in its favor
pending appeal of that judgment to a state appellate court.
The issue in Pennzoil concerned the procedure for
executing the monetary judgment awarded to Pennzoil at trial,
specifically whether the procedure for executing the judgment
implicated a federal constitutional right. But in my fees-
challenge case the real party-in-interest was not Upjohn, the
appellee in the products-liability case, but Cook County, the
government entity that not only would collect the fee but
would use the fee. And did use the fee; the county has not
paid and will not be paying Upjohn the $1,635 I paid to it for
the preparation of the court record. :
App. E-22
So how is this a replay of Pennzoil? And, more to the
immediate point, why should I be sanctioned in light of
Pennzoil for filing the federal lawsuit? Other than that this
court likes to sanction people for the sake of sanctioning
people, that is.
As for Judge Zwick, she was right (for once) in ruling
against me. (She was right al/ the time when she ruled for
me.) I had relied upon Kunkel, Taylor Machine Works and
Hettinger for my proposition that she did have jurisdiction to
hear the fees-challenge. But the statutes at issue in those cases
(particularly in Kunkel and Hettinger) were for the sole benefit
of private civil defendants in such cases, not for the benefit of
the state or other government entity. And as the names of
those cases denote, just as the name of Pennzoil v. Texaco
denotes, it was not the government but the defendants in the
tort actions who were the parties in interest as well as the
parties in name.
_ Although Zwick said she had the option to accept
jurisdiction on the fees challenge, and although at the time I
certainly agreed with her interpretation of the law on that, I no
longer think she even had the option to hear it, given that it
was the county and not Upjohn whose interest was at issue in
the fees matter. I think the appropriate analysis would be
analogous to that in considering discretionary-joinder motions.
And at least unless the county was being joined as a party, a
joinder motion would have to have been denied.
D. Illinois appellate courts have no authority to
waive or reduce the file-preparation fee
Although this court says otherwise, there is no Illinois rule
that enables an appellate court to waive or reduce the file-
preparation fee as this court claims. I, at least, know of none,
and that is not for lack of trying. Unable to find one myself, I
inquired of the deputy chief clerk at the appellate court clerk’s
App. E-23
office (Steven Ravid, who this year became that court’s clerk)
and was told no such procedure exists. As this court notes,
Illinois Supreme Court Rule 298 provides for petitions to be
presented to the trial court and also strictly limits eligibility
for that relief. Another Rule permits the severance of some
documents from the remainder of the record to allow their
preparation for appeal, but it requires the discretionary
approval of the trial judge or agreement of the appellee. I
presented such a motion to the trial judge but Upjohn
contested it successfully on the grounds that neither of its
appellate attorneys had been involved in the case at the trial-
court stage and they would need the entire record when
drafting their briefs (these were cross-appeals).° The wording
of the Rule suggests that such a motion could be presented
also to the appellate court, but when I told Upjohn’s local
appellate counsel — Thomas Fegan, a longtime Illinois
appellate specialist — that I planned to file one he said the
appellate court could not entertain motions under that Rule.
Fegan is the author of a book on Illinois appellate
procedure, and I checked his book’s discussion of the Rule (1
don’t recall which Rule it was) to verify that he thought this.
The book confirmed it and cited supporting case authority.
E. An exhaustion-of-state-constitutional-remedies
prerequisite would divest federal courts of original
jurisdiction to hear any federal due process or equal
protection claim against any government in Illinois,
or at least would divest it of original jurisdiction to
hear any such challenge to an Illinois statute.
° This sounds like a transparent excuse to ratchet up the cost
to me of the appeal, but it was not. At virtually the same time,
Upjohn’s lawyers provided me with copies of transcripts of about
25 hearings at $.20 per page, the same rate they charge their clients,
saving me more than $2,000 in court-reporter fees.
App. E-24
Article I, Section 2, of the Illinois state constitution mirrors
the Fourteenth Amendment’s due process and equal protection
clauses. It was the primary state-constitutional provision |
asserted in the motions Judge Zwick declined to hear, and in
my Rule 381 petition that the Illinois Supreme Court declined
to hear. It reads:
No person shall be deprived of life, liberty or property
without due process of law nor be denied the equal
protection of the laws.
If the existence of that or any other constitutional provision
requires federal court abstention in my fees-challenge lawsuit,
then they would do the same in other cases challenging
Illinois statutes. But they don’t.
This court’s opinion in Club Misty, Inc. v. Laski, 208 F.3d
615 (7th Cir. 2000), begins with: “Two licensed taverns in
Chicago appeal from the district court's dismissal of their suit
to enjoin an Illinois state statute pursuant to which the
plaintiffs would have lost their licenses had they not been
granted preliminary relief that continues on appeal. The
statute, 235 ILCS 5/9-1 et seq., is challenged both as depriving
the plaintiffs of their property without due process of law and
as a bill of attainder.” It ends with: “So the issue ‘is not too
much delegation, but delegation to the wrong body: delegation
of judicial decision-making, for example, to people who are
not judges.’ [Citations omitted.] That is what Illinois has
done and what the due process clause prohibits.”
No fear expressed there of unwarranted determination of
federal constitutional questions. Nor in Kendall-Jackson
Winery, Ltd. v. Branson, 212 F.3d 995 (7th Cir. 2000).
The federal constitutionality of Illinois statutes are
challenged in federal district court just as the federal
constitutionality of other states’ states are challenged in
App. E-25
federal district court even when those states’ constitutions
have provisions that mirror the federal constitutional provision
cited. And they proceed through federal district-court and
appellate resolution on their merits.
While I was litigating my fee challenge in federal district
court, the U.S. Supreme Court issued its opinion in Saenz v.
Roe, 526 U.S. 489 (1999), in which it affirmed a ruling by the
9" U.S. Circuit Court of Appeals that struck a California
welfare-benefits statute as violative of several clauses of the
Fourteenth Amendment, including the equal protection clause.
The district court in Saenz, like the 9” Circuit, had ruled on
the merits of the federal constitutional issues, including the
equal protection issue.
The Supreme Court in its opinion in Saenz did not mention
a state-constitutional-grounds exhaustion requirement, and I
don’t know whether California’s constitution has a provision
similar to the Fourteenth Amendment’s equal protection
clause and to the Illinois constitution’s Art. I, sec. 2. But I do
know this: that on the date that the Supreme Court decided
Saenz, a virtually identical lawsuit then on appeal before this
court was based on an Illinois statute indistinguishable from
the one in Saenz, and that the appellant was not the plaintiff
but the state of Illinois. The district court had found that the
statute violated the Fourteenth Amendment — this
notwithstanding the existence of the state constitution's Art. I,
sec. 2, and that the plaintiff was complaining about the effect
of the statute on her. See Hicks v. Peters, 98-3696 (7" Cir.).
I quoted from Saenz to the district court and in my briefs to
this court (in 99-3595 at p. 29, in 99-1750 at pp. 36-37). The
law clerk assigned to this appeal must have missed it.
This court writes in its Rule 53 Order that it examined the
briefs and record in my appeals and concluded that oral
argument was unnecessary. But, with the exceptions only of
App. E- 26
the issue-preclusion question and the state-court-funding-
structure matter, both of which I discussed above, none of the
issues on which it based its decision and its sanction was
briefed to this court, nor even argued to the district court. |
requested oral argument — although I admit I really didn’t
want it. But at least at oral argument I would have learned
that my appeals would be determined in a vacuum, upon
cascading unscrutinized presumptions that I had no reason to
foresee. I could have — and would have — requested leave to
file a supplemental brief addressing them, albeit one that (like
the others) no one would have read anyway.
I’m writing that brief now, instead of meeting deadlines on
a variety of other matters, only some of them related to my
avocation as a frequent filer. But I’m not sure why. I’ve
already lost my appeals, and this court already has decided to
sanction me. It makes no difference what | write here.
Just as it made no difference what I wrote in my formal
briefs. | could have written anything. I could have confessed
to murder (and did, at p. 19 in 99-3595). I could have recited
nursery rhymes (pp. 7-9 in 99-1750). I could have excerpted
pages from the phone book (pp. 10-18 in 99-3595). I could
have divulged a purloined nuclear secret (p. 37 in 99-1750). It
was all the same. As it will be again.
F. A petition pursuant to Illinois Supreme Court
Rule 381 gives Illinois the “first crack” at the
issue and therefore satisfies the Pullman-
doctrine prerequisite.
Much of this court’s Rule 53 Order reads to me like a shell
game. It skewers me for bringing the fees-challenge to federal
court instead of presenting it to the Illinois courts. But it also
disparages me for petitioning the Illinois Supreme Court to
hear the case pursuant to a Supreme Court Rule explicitly
designed to provide quick adjudication of such issues. And it
App. E-27
notes gleefully that the Supreme Court promptly denied my
petition to consider the issue, yet it orders the district court to
abstain from the matter because, it says, I didn’t bring the
matter to the Illinois courts.
This court cites Mazanec to support sanctions against me,
but Mazanec says, “no useful purpose would be served by
abstaining in this case. The main purpose of the Pullman
doctrine is to avoid, if possible, declaring a state statute
unconstitutional, by giving the state courts a chance to
interpret it narrowly. [Citations omitted.]” Mazanec also says
“there are two requirements for abstaining under Pullman:
some risk that the statute will be found unconstitutional unless
narrowed; some reasonable chance that it can be narrowed
through interpretation.” But apart from this court’s
rumination about the former, the latter chance is nonexistent;
the statute sets the fee, a ceilingless fee of $.25 per page.
This court says I wasn’t challenging the fee as
unconstitutional for anyone but me. But (even aside from the
portions of my brief quoted above that do exactly that in
unequivocal terms) the court’s assertion is a logical
impossibility.
I had never heard of the Tax Injunction Act. But
apparently neither had the State’s Attorney’s Office nor had
the district judge. And Mazanec, which this court cites in
support of sanctions, ends with this:
At the risk of supererogation, we add a final reason against
abstention: the state did not ask for it until the end of the
trial. We mentioned this point earlier in connection with
delay; but it is also an independent argument against
abstention. It is true that abstention can be ordered even if
neither party requests it at any stage of the proceedings,
[citations omitted] — and this may seem surprising: if the
state does not want the protection that the doctrine affords
App. E-28
it, why should the federal court extend the doctrine affords
it, why would the federal court extend that protection to the
state anyway? The answer is that "the state" is not an
individual, but a collectivity. State attorneys general (who
usually are elected officials, rather than appointees (who
usually are elected officials, rather than appointees of the
governor) may not have the same interests as other organs
of state government; nor may local officials; and federal
court should not get involved unnecessarily in what may be
intramural struggles of state government even if invited to
do so by one of the contenders. But if the responsible state
officials are willing to litigate the case in federal court, that
court does not have to force it back into state court.
[Citations omitted.] These state officials were willing.
My Rule 381 petition — this court’s derision of it
notwithstanding — accommodated the need for state comity
and satisfied the requirement of the Tax Injunction Act.
And when contending parties invoke the process of the
federal courts, it becomes the unsought responsibility of those
courts to resolve the federal and constitutional issues the
judicial system has been forced to confront. See Bush v.
Gore, 121 S. Ct. 525 (2000). This court shirked its
responsibility to consider my fees challenge, and veils that
truth under a pious sanction order.
Conclusion
Much of this court’s Rule to Show Cause relies upon the
factually erroneous statement in the state-court appellate
opinion that the trial court had issued several sanctions orders
were issued against me. On September 18, I filed with the
Illinois Supreme Court an Appeal as of Right and,
alternatively, a Petition for Leave to Appeal, in which |
address that issue at various points in her Petition to the
App. E-29
Illinois Supreme Court, but particularly in several paragraphs
on p. 16, one of which reads:
Illinois Supreme Court Rule 219 is titled “Consequences of
Refusal to Comply with Rules or Order Relating to
Discovery or Pretrial Conferences.” Sec. (c) requires that
“(where a sanction is imposed ... the judge shall set forth
with specificity the reasons and basis of any sanction so
imposed either in the judgment order itself or in a separate
written order.” No such sanctions order was entered in this
litigation.
I attach to this Response as Exhibit | a copy of that 20-
page Petition. The Petition addresses all of the matters this
court raises about the manner in which | litigated the state-
court products liability lawsuit.
I also note an opinion that this court issued earlier this
week in Downey v. State Farm Fire & Casualty Co., No. 00-
3473 (7" Cir. Sept. 17, 2001), in which the court said it
believed initially that no federal jurisdiction existed (the
ultimate basis for this court’s Rule to Show Cause issued
against me) but provided the plaintiff with two opportunities
to address the jurisdictional question, first at oral argument
and then in a supplemental brief. This court concluded then _
that federal jurisdiction did exist in that case.
I received in the mail today, September 19, in an envelope
postmarked September 18, a copy of the Defendants’ Estimate
of Total Expenses, which they say amounts to $5,180.00, a
very steep sanction, particularly given the absence of any
earlier indication that there even existed a jurisdictional issue.
In this light, I ask that this court accord me a hearing of the
sort provided under F.R.A.P. 46(c) so that I can try to
convince it that I believed, and why I believed, throughout this
litigation that federal jurisdiction existed in my fee-challenge
lawsuit.
App. E-30
Respectfully submitted,
Beverly B. Mann
Respondent Pro Se
7261 North Campbell Avenue
Chicago, Illinois 60645
(773) 465-4587
September 19, 2001
al
App. F - 1
1999 U.S. Dist. LEXTS 13426, *
BEVERLY B. MANN, Plaintiff, v. AURELIA PUCINSKI,
As Clerk of The Circuit Court of Cook County, Illinois, and
COOK COUNTY, ILLINOIS, Defendants.
Case No. 98 C 8004
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, EASTERN
DIVISION
1999 U.S. Dist. LEXIS 13426
August 3, 1999, Decided
August 3, 1999, Filed
OPINION BY: Harry D. Leinenweber
OPINION: MEMORANDUM OPINION AND ORDER
Before the court is defendants’ motion to dismiss. Plaintiff
Beverly B. Mann ("Mann"), pro se, sues Aurelia Pucinski, as
Clerk of the Circuit Court of Cook County, Illinois and Cook
County, Illinois, the municipality. Although suing pro se,
Mann is a trained lawyer, and has brought numerous
lawsuits in this District unrelated to the immediate lawsuit.
Plaintiff challenges the constitutionality of a provision of the
Illinois Clerk of Courts Act, which sets a fee of $ .25 per
page for copying and transferring a circuit court record to the
Illinois appellate court for court records over 200 pages. 705
ILCS 105/27.2a(k)(4). Specifically, plaintiff alleges that
App. F —-2
Section (k)(4) of the Act violates Section 1 of the Fourteenth
Amendment to the U.S. Constitution [*2] and Article I,
Section 2, and Article [X, Section 12 of the Illinois
Constitution.
BACKGROUND
The court is intimately familiar with this case as it has
produced a fairly extensive procedural history, including one
prior lawsuit. Briefly, the procedural history is as follows.
Mann originally filed a federal lawsuit, Case No. 98 C 6087,
styled not as a complaint but rather as a petition for a
temporary restraining order and writ of injunction or
prohibition to prevent the Illinois clerk of courts from
imposing the statutory fee in Mann's state court appeal.
Mann currently is appealing a decision issued by the state
circuit court in her products liability suit against the Upjohn
Company. Mann objects to having to pay the statutory fee,
amounting to $ 1,543.75 in her case. This court held a
hearing on Mann's motion for a Temporary Restraining
Order but denied the motion and dismissed the case for want
of jurisdiction. This court's reasons for finding a lack of
jurisdiction were premised on the well-established rule in
Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S. Ct.
149, 68 L. Ed. 362 (1923) and District of Columbia Court of
Appeals et. al. v. Feldman, et. al., 460 U.S. 462, 103 S. Ct.
1303. 75 L. Ed. 2d 206 (1983). [*3] The rule, known as the
Rooker-Feldman doctrine, prevents federal district courts
from providing appellate review of state court decisions, as
federal jurisdiction is strictly original and the correct avenue
of appellate review exists in the state appellate court, the
state supreme court and eventually the U.S. Supreme Court.
In other words, this court has no subject matter jurisdiction
over final decisions by the state courts. Id.; see also Garry v
Geils, 82 F.3d 1362, 1364-1368 (7th Cir. 1996). Mann had
filed a motion with the state circuit court seeking to have the
circuit court clerk ordered to forego the statutorily mandated
App. F —3
fee for preparing the court record. In addition, Mann filed a
petition for writ of mandamus with the Illinois Supreme
Court, which was denied. In essence, Mann asked this court
to review these state court decisions, which this court could
not do under the Rooker-Feldman doctrine. Therefore, this
court dismissed Mann's suit for want of jurisdiction.
Following the court's dismissal of the lawsuit, Mann filed
several subsequent motions attempting to establish this
court's jurisdiction, including in chronological order: a
motion to vacate the judgment [*4] order, a motion to
reconsider, a second motion to reconsider, a second motion
to vacate the judgment order, a motion for leave to file an
amended petition for writ for mandamus or prohibition, and
another motion to reconsider. All of these motions were
denied.
Subsequently, Mann brought this second lawsuit to continue
her quest to obtain copies of the circuit court record without
having to pay the statutorily-mandated fee. To remedy the
jurisdictional defect existing in her prior federal suit, Mann
argued that the circuit judge had not actually denied her
motion ordering the clerk to waive the fee, but that the
circuit judge had declined to consider it. On the basis of this
argument and after determining that the Illinois Supreme
Court had declined leave to file the mandamus action, this
court found that Mann had cured her jurisdictional defect.
Having established jurisdiction, Mann initiated this suit by
bringing a "Motion for Hearing on Petition for Writ of
Mandamus and Prohibition." This court, finding no federal
statutory authority to issue a writ of mandamus forcing the
clerk to issue the circuit court record to Mann free of charge,
denied her motion. Mann responded by filing [*5] a Motion
for a Temporary Restraining Order. Incidentally, before this
court ruled on Mann's motion for a temporary restraining
order, Mann attempted on at least two occasions to file
emergency motions for leave to amend her complaint before
other fellow judges in this district, both of which were ;
sothe Pe SERENA oe i ee
App. F -4
denied. This court subsequently denied Mann's motion for a
temporary restraining order. At that point, Mann filed a
Motion for Leave to File an Amended Joint Complaint,
which the court granted, and a Motion for Preliminary and
Permanent Injunction. After briefing on these motions, the
court denied Mann's motion in a Memorandum Opinion and
Order. See Mann v. Pucinski, No. 98 C 8004, 1999 WL .
135305 (N.D. Ill. Mar. 3, 1999). Following this
memorandum opinion and order, Mann filed an Emergency
Motion for Reassignment in front of Judge James B. Zagel.
After deciding the motion was not the proper subject of an
emergency, Judge Zagel ordered Mann to present the motion
for reassignment in this court. Mann then presented her
"Motion for Judicial Recusal," pursuant to 28 U.S.C. § 455
and Motion to Vacate the Order Denying a Preliminary
Injunction, which this court [*6] denied. Thereafter, Mann
filed a Notice of Appeal from this court's orders denying her
motion for judicial recusal and to vacate the order denying a
preliminary injunction and the court's memorandum and
opinion order denying her motion for a preliminary
injunction. Thereupon the defendants brought a Motion to
Dismiss Mann's amended complaint and amended joint
complaint, which is the motion immediately before the court.
nl In short, Mann has shown no shortage of creativity or
tenacity in seeking her desired relief.
nl As a side note, Mann also thereafter filed a Motion for
Sanctions Pursuant to Rule 11, which the court denied. And
in addition, Mann filed another case in federal court arising
from the same state court suit against Upjohn, seeking an
‘injunction against Cook County Circuit Court Judges
O'Connell, Cohen, Cox and Bastone from denying her a
request for a trial continuance, which Judge Plunkett denied.
PUBLISHER'S NOTE:
Page(s) hop FO-F missing in original.
App. F — 10
[*15] and costs, $ 75.
(3) Court appeals when original documents
are forwarded, over 100 pages, plus delivery
and costs, $ 150.
(4) Court appeals when original documents
are forwarded, over 200 pages, an additional
fee of 25 cents per page.
705 ILCS 105/27.2(a) (West 1999). Mann contests Section
(k)(4) only.
In ruling on Mann's motion for a preliminary injunction, this
court partially analyzed the constitutionality of Section (k)(4)
and determined that Mann had virtually no chance of
succeeding in bringing her state and federal constitutional
claims. See Mann v. Pucinski, 1999 U.S. Dist. LEXIS 2804,
No. 98 C 8004, 1999 WL 135305, at **1-4 (N_D. Ill. March 3,
1999). This court found that Illinois does not treat certain
litigants more favorably than others (except indigents - in that
a waiver of the fee is available under Supreme Court Rule 298
for indigents), nor does it impose any insurmountable
impediments to civil litigants in order to carry on an appeal.
Id. at *2. The court concluded also that there is nothing
irrational or arbitrary about imposing a fee on users of the
court system in order to provide financial support for that
same court system. Id. at *3. The court [*16] found
numerous cases affirming the constitutionality of statutory
fees under the Illinois Constitution. Id. The court read and still
reads these state court decisions as foreclosing Mann’s claim
under the Illinois state constitution and to hold that under the
Illinois Constitution, fees must be used to support the court
system and the legislature need not first ascertain the actual
cost of a service when establishing the fee. Id.
As for Mann's federal constitutional claims, after further
App. F - 11
briefing the court is convinced that Mann's claims must fail.
Under Mann's asserted facts, the fee imposed by Section
(k)(4) does not violate her rights to equal protection or
procedural due process as a matter of law. Although the
Constitution guarantees no right to appellate review, once a
State affords that right, that right must be provided equally.
Griffin v. Illinois, 351 U.S. 12, 18-24, 76 S. Ct. 585. 590-93.
100 L. Ed. 891 (1956). The Illinois rule challenged in Griffin
deprived most defendants without means to pay for a
transcript access to appellate review. Id. The Supreme Court
has navigated the basic rule in Griffin, that appellate review
may not be [*17] denied by a party's inability to pay, taking
into specific account the underlying stakes of the case. M. L.
B., Petitioner v. S. L. J. Individually and as Next Friend of the
Minor Children, 519 U.S. 102, 103, 117 S. Ct. 555, 556, 136
L. Ed. 2d 473 (1996). The Supreme Court has interpreted
Griffin to mean that equal access to appellate courts without
regard to a defendant's ability to pay is more narrowly
confined to cases where imprisonment is at stake or where the
conduct is quasi-criminal in nature. M. L. B., 519 U.S. at 103,
117 S. Ct. at 556. In addition, the Supreme Court "has also
recognized a narrow category of civil cases in which the State
must provide access to its judicial processes without regard to
a party's ability to pay court fees. Id. (citing Boddie v.
Connecticut, 401 U.S. 371, 374, 91 S. Ct. 780. 784, 28 L. Ed.
2d 113 [divorce proceedings]). Making clear, however, that a
constitutional requirement to waive court fees in civil cases is
the exception, not the general rule, and the Court has refused
to extend Griffin to the broad array of civil cases." Id.
(internal citations omitted); see also United States v. Kras, 409
U.S. 434, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973) [*18]
(statutory requirement of payment of filing fees as condition
precedent to obtaining discharge in bankruptcy has a rational
basis and does not deny indigents equal protection of the
laws); Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172, 35 L.
Ed. 2d 572 (1973) (Oregon appellate filing fee, as applied to
indigents seeking to appeal an adverse welfare decision, is not
App. F — 12
violative of the due process or equal protection clause of the
Fourteenth Amendment). The limited exception to this rule
denying a constitutional waiver in run of the mill civil cases is
for civil cases involving state controls or intrusions on family
relationships, for example, in parental termination appeals,
where the family association "'of basic importance in our
society’ is at stake.” Id.. 519 U.S. at 103, 117 S. Ct. at 556-57.
Under Griffin and its progeny, the court concludes that Mann's
underlying lawsuit is a run of the mill civil case, to which the
constitutional waiver of court fees does not apply. As a
product liability lawsuit, the special interests advanced in most
criminal cases and in rare civil cases, such as where choices
about marriage, family life or the upbringing [*19] of
children must be made, are not implicated here. Id.
The court further finds that a rational basis exists for the fee in
Section (k)(4). Mann argues that there is no rational basis
alleging that the fees in Section (k)(4) are not used to support
the appellate courts, the fee discriminates against the class of
appellants whose litigation has garnered a large court record,
and the fee greatly exceeds the cost to the county of providing
the service at issue. First, the court summarily dismisses
Mann's notion that the $ .25 per page fee over 200 pages is
disproportionate to the actual charge and that it is excessive.
Mann's cost per page, $ .25, is a bargain compared to the
charges the Supreme Court has identified as within a
reasonable range for similar statutory appellate transcription
fees. M. L. B.. 519 U.S. at 139, 117 S. Ct. at 575 (Thomas, J.,
dissenting generally to the majority's main holding that an
indigent is entitled to free transcripts in civil cases where
fundamental familial rights are implicated) (Mississippi's $ 2
per page charge "falls comfortably within the range of charges
throughout the Nation." citing inter alia Ariz.Rev.Stat. Ann. §
12-224(B) [*20] (1992) ($ 2.50/page); Mass. Gen. Laws §
221:88 (1994) ($ 3.00/page); S.C.App.Ct. Rule 508 ($
2.00/page)). As for Mann's contention that the fee
App. F — 13
discriminates against the class of litigants who have amassed
long court records, the court finds that the class identified by
Mann as being discriminated against hardly could qualify as a
classification attracting heightened scrutiny under the equal
protection clause. Such classification is reserved for suspect
classifications, such as race, for example. See e.g. Harris v.
McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784
(1980). And the Supreme Court "has never held that financial
need alone identifies a suspect class for purposes of equal
protection analysis." Id.. 448 U.S. at 323. 100 S. Ct. at 2691
(internal citations omitted). Moreover, "the State's need for
revenue to offset costs, in the mine run of cases, satisfies the
rationality requirement." M. L. B.. 519 U.S. at 123-24, 117 S.
Ct. at 567 (internal citations omitted). On its face, like similar
transcription fees, the purpose of the fees in Section (k)(4) is
to offset the costs of preparing the appellate record. The fact
that [*21] long transcripts are more costly to the court system
and that the legislature imposed a per page fee is further
evidence the purpose of the statutory section is to offset the
costs of preparing a long record. It stands to reason that under
a flat fee scheme the clerk's office would lose money the
longer the record. Thus the court finds a rational basis for the
statutory fees in Section (k)(4), that of offsetting the fees of
transcription. Mann also contends that there is no rational
basis because the fees are not directly earmarked and used to
fund the appellate courts, but rather, Mann contends the fees
are collected and deposited into the general Cook County fund
and are used for the general operation of county government.
However, the issue of whether the fees are used for purposes
unrelated to the costs of operating and maintaining the courts
has been raised, found to be unsubstantiated, and rejected by
the Illinois courts. See Zamarron v. Pucinski, 282 Ill. App. 3d
354, 357-60, 218 Ill. Dec. 23, 668 N.E.2d 186 (1996). Finally,
the court notes that the fact that a waiver is available to
indigents under Rule 298 is further basis for this court to find
arational [*22] basis for the statutory fee. The fact that
Mann, who purports to be of limited means, has not applied
App. F - 13
for such waiver, remains puzzling to the court if in fact Mann
is serious about seeking appellate review.
Mann requests that a writ of prohibition be issued barring
defendants from enforcing 705 ILCS 105/27.2a(k)(4).
Because Mann's claims fail on their merits, this request is
denied as moot. On July 12, 1999, Mann filed a motion to
supplement the record on appeal with her Response to
Defendants’ Motion to Dismiss Plaintiff's Amended Complaint
and Amended Joint Complaint and its exhibits, filed for
purposes of this motion to dismiss. Mann states she filed her
opening brief in her appeal on July 7, 1999. Mann's motion to
supplement the record on appeal is granted.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is
granted. Mann's request for a writ of prohibition is denied as
moot. Mann's motion to supplement the record on appeal is
granted.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date: August 3, 1999
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came before the Court. The
issues [*23] have been heard and a decision has been
rendered.
IT IS HEREBY ORDERED AND ADJUDGED that the
motion by defendants’ to dismiss is granted.
Date: 8/3/1999
App. G-1
Following are the first four pages (the first three sections) of
Mann’s Petition to the Illinois Supreme Court in Beverly B.
Mann vy. The Upjohn Co., No. 92383, scheduled for ruling on
December 5:
1. Appeal as a Matter of Right and Alternative Prayer
for Leave to Appeal
Petitioner, Beverly B. Mann, a nonpracticing attorney
pro se, appeals to this Court as a matter of right from the
decision of the Illinois Appellate Court, First District, Third
Division, in which that court affirmed without review the 735
ILCS § 5/2-1005 entry of summary judgments on several
counts and the 735 ILCS § 5/2-619 dismissal of another count,
affirmed without review the denial of a735 ILCS § 5/2- _
1005(g) motion for leave to file amendments to the complaint,
and affirmed on the basis of a series of supposed sanctions
orders existing nowhere in the record (no such orders were
entered!) the denials in violation of 735 ILCS § 5/2-1007 of
motions for a single three- or four-month trial-date
continuance and the denial (in violation of this Court’s
precedent) of a 735 ILCS § 5/2-1301 motion.'
That court’s denial of any appellate review of the
orders granting the defendant’s § 5/2-1005 and § 5/2-619
motions and of orders denying Mann’s § 5/2-1005(g) motion
violated several state and federal constitutional provisions: the
due process and equal protection provisions of the
Constitution of the State of Illinois (Art. I, sec. 2) and of the
Constitution of the United States (the Fourteenth
Amendment), the Illinois Constitution’s scheme of separation
' Someone — presumably a law clerk — foraged through the 26-
volume file and extracted disjointed sentences and titles from the
appellee’s motions (almost none of which even were mentioned in the
briefs because the parties considered them irrelevant). Incredibly, the
Appellate Court misrepresents these as findings by the trial court.
App. G-—2
of powers between the legislative and judicial branches (Art.
II, sec. 1), the Illinois Constitution’s conferred right to
appellate review (Art. VI, sec. 16), and the United States
Constitytion’s conferred right to jury determination of issues
of fact in most common-law civil lawsuits seeking monetary
damages (Seventh Amendment).
As did that court’s unexplained affirmance of the
stated policy of the Cook County Law Division, as per former
Chief Judge Donald P. O’Connell’s arbitrary directive, that
requires as a prerequisite to the grant of trial-date-continuance
motions the designation of paid opinion witnesses.
Mann had repeatedly challenged that policy as
violative of constitutional due process and equal protection
precepts and as contrary to 735 ILCS § 5/2-1007, and the
issue was central to much of her appeal. The Appellate
Court’s failure to consider these challenges amounts to a tacit
finding that Illinois circuit courts can ignore at will the
specific dictates of a state statute, in seeming derogation of
Illinois’ constitutional separation of legislative and judicial
powers established in Art. II, sec. 1. em ea
as of — Mann prays for leave to appeal.
Proceedings Below
Tice of the Appellate Court was entered on
June 29, 2001. A Petition for Rehearing was filed on July 20,
2001, and was denied in an order entered on August 14, 2001.
An affidavit of intent to file a petition for appeal as a matter of
right and, alternatively, for leave to <m was filed on
August 23, 2001.
A. may eee me seo ae agen a 2 s
appeals from summary disposition pursuant to 735 ILCS §§
5/2-1005 and 5/2-619 of several counts in her complaint,
holding without explanation and without any apparent
authority that Mann was not entitled to appellate review of
those dispositive orders because her remaining counts
ultimately were dismissed for want of prosecution. But the
subsequent dismissal for want of prosecution of the counts
App. G-3
that had remained after summary interlocutory disposition on
other, unrelated counts does not — and constitutionally cannot
— operate as an arbitrary bar to appellate review of the earlier
dispositive orders.
B. The Appellate Court’s summary narration includes
such profound and seemingly systematic error — including
(stunningly) a litany of claims that certain orders were issued
that were not issued and that certain motions were granted
when actually they were denied (and the reverse) — that the
erroneous narration approaches outright fabrication of the
court record. The effect is of a house-of-cards, of a Ponzi-like
scheme in which affirmances are piggybacked upon
nonexistent orders or upon utter irrelevancies recast in a
starkly false light, of a clear denial of appellate review.
C. Instead of examining the propriety of trial-court
orders from which Mann had appealed, the Appellate Court
(even when summarizing them accurately) simply reported
what the trial court had ruled and said nothing further about
them, but they were used as the basis upon rulings other than
that they provided the basis upon which to affirm other orders
~ as though the fact of a ruling itself justifies its affirmance.”
It’s simply.a circular and therefore empty exercise, and
doesn’t meet even minimal standards of due process and equal
protection. It’s a shell game, not genuine appellate review.
D. Mann was told repeatedly by the small cadre of
Law Division judges who, at the behest of (recently retired)
Chief Judge Donald P. O’Connell, ruled on trial-date-
continuance motions that there were two prerequisites to trial-
date-continuances upon motion and that Mann had not met
those prerequisites: she had not designated a paid opinion
witness and she had not taken a sufficient number of
? E.g., the court noted accurately that the trial court had denied
Mann’s motion to amend the complaint in order to add certain counts,
deeming those counts too similar to ones on which summary judgment
earlier was granted. But Mann had appealed from that order, and so the
mere recitation of the trial court’s stated grounds for the ruling (even when
summarized accurately) doesn’t constitute meaningful appellate review.
App. G-4
depositions and she therefore was deemed lacking in due
diligence. But these prerequisites conflict with 735 ILCS §
5/2-1007 and violate state and federal constitutional
guarantees to due process and equal protection of the law;
they amount to a steep court-access fee, the lack of payment
of which results in denial of access to trial. And the appellate
court’s failure to consider these challenges amounts to a tacit
finding that Illinois circuit courts can ignore at will the
specific dictates of a state statute, in seeming derogation of
Illinois’ constitutional separation of legislative and judicial
powers.
E. The trial court treated Mann’s trial-date-
continuance motions as though they were Upjohn’s summary
judgment motions, insisting that Mann prove the sufficiency of
her evidence as a prerequisite to relief. Mann argued to the
trial court and on appeal that the spontaneous transformation
of her trial-date-continuance motions into Upjohn’s
sufficiency-of-evidence motions contravened § 5/2-1007 and
denied her the procedural and substantive due process
required for such motions.
F. The Appellate Court in affirming the denial of
Mann’s § 5/2-1301 motion failed to undertake the analysis
that this Court has said is required, and instead ruled based
upon utter irrelevancies — employing a remarkably curious
cut-and-paste technique in selecting its references to the
record. The Appellate Court, as did the trial court, analyzed
her motion not under the standards for § 5/2-1301 motions but
for § 5/2-1401 motions.
Se
App. H- 1
In the
United States Court of Appeals
for the Seventh Circuit
In re: Beverly B. Mann )
)
Nos. 99-1750 and 99-3595 )
(Corrected) Motion for Stay of Issuance of Mandate so as
to Enable the Filing of, and Ruling Upon, a Motion for
Rehearing (and Rehearing en banc)
re: September 19, 2001, Sanctions Order
Petitioner Beverly Mann moves this court to stay the
issuance of the mandate in this matter so as to enable her to
file, and obtain a ruling upon, a Motion for Rehearing (and
Rehearing en banc) regarding the sanctions order issued on
September 19, 2001. She plans to file her motion for
rehearing no later than September 25, only four business days
after the order was issued and three business days after she
received a copy if it.
The sanctions order stems from a Rule 53 order issued
on August 31 in which this court resolved the appeals and
issued a sua sponte rule to show cause. None of the assertions
upon which the court based its rule to show cause was
addressed or even asserted previously in the litigation, yet the
court ordered the appellees to submit an estimate of total
expenses (including hourly attorneys’ fees) by the date that
Mann’s response to the rule to show cause was due. In her
App. H-2
motion for rehearing, Mann will argue that the grounds for the
September 19 sanctions order appear to differ significantly
from the court’s stated grounds for the issuance of the rule to
show cause. She also will argue that she has been denied the
procedural due process for the issuance of sanctions that this
court in Jn re Hancock, 192, F. 3d 1083 (7 Cir. 1999), and in
In re Rimsat, Ltd., 212 F.3d 1039 (7 Cir. 2000), has said is
required, at least in that she has had no opportunity
whatsoever to address the sanctions order’s assertions of law
and an erroneous interpretation concerning her comments
about Pennzoil and the Tax Injunction Act. The sanctions
order says:
The response to our Order to show cause spends a
great deal of time expressing dissatisfaction with the
rulings if both state and federal courts in this case, but
it does very little to justify the filing of three federal
lavysuits seeking review of decisions made in, or
mertters affecting, a products-liability case ongoing in
state court. To the extent the response offers
explanations (such as ignorance of Pennzoil and the
Tax Injunction Act), these are not justifications.
Counsel is obliged to research the law before filing
suits.
She will argue that with due respect the first of those
assertions is erroneous and the second is irrelevant given her
challenge to the relevance of Pennzoil and the Tax Injunction
Act (the latter which this court itself said in its August 31
App. H -3
order probably is irrelevant, albeit for reasons that differ
significantly from those Mann has asserted). She submitted a
17-page, single-spaced response to the rule to show cause, all
but the first five pages of which address the legal issues
concerning the availability to her under Illinois law of the
forum of the products-liability lawsuit, and the appealability
under Illinois law of the state-court judge’s order, both
facially and in conjunction with the state-court judge’s
instructions to “file another lawsuit.” The state-court order
read in material part:
The court states that it is reiterating that it is declining
to accept jurisdiction to hear the constitutional
challenge because the constitutional challenge was not
a part of, and is collateral to, the underlying products
liability lawsuit.
This court had premised its rule to show cause upon a
presumption that under Illinois law the state-court order
constituted a judgment and was an appealable order. But
Mann argued elaborately and with citation to Illinois Supreme
Court authority, in eight single-spaced pages in her response,
that neither premise was accurate. And she distinguished her
situation from that in Pennzoil not only in that regard but also
in that, in Pennzoil, the parties to the statute-challenge were
identical in both name and actual interest to those in the
underlying lawsuit, and that the Pennzoil matter concerned the
App. H-4
execution of the judgment in favor of the Pennzoil. In Mann’s
situation, the state-court judge explicitly held that the fee-
challenge was not a part of the underlying lawsuit.
In its sanctions order, this court holds for the first time
either that the state-court judge interpreted Illinois law
erroneously in this regard or that Illinois law is irrelevant to
the federal subject-matter jurisdiction. (Mann is not clear
which.) But the court offers no explanation for either
(apparently alternative) legal premise and Mann does not
know any basis for either.
The upshot of this court’s stated rule of law would be
that Mann had no forum at all in which to litigate the fee
challenge. She could not litigate it as part of the products-
liability lawsuit because the trial judge in that case declined
jurisdiction to hear it. She could not appeal from that order
because under Illinois law the order was not an appealable
one. And (according to this court) she could not bring a
separate lawsuit challenging the fee, whether in state or
federal court — the state-court judge’s instruction
notwithstanding — because the fee-challenge matter could
affect the products-liability case, an erroneous statement of
fact given that Mann’s appeal was not dismissed for failure to
pay the fee (she paid the fee).
App. H -5
And as for the Tax Injunction Act, Mann indeed said
she was unaware of it. But she also said explicitly and in an
entire separate section of her Response that even if pertinent
to this matter, the Act’s requirement was satisfied by her filing
of an Illinois Supreme Court Rule 381 petition to the Illinois
Supreme Court, a Rule designed specifically for that purpose.
This court based its sua sponte rule to show cause
upon several erroneous premises of Illinois law and an
important premise of federal constitutional law from which, at
least if Mann reads the sanctions order correctly, this court
now retreats: that there exists a requirement of exhaustion of
state-court constitutional remedies before a statute (or
municipal ordinance) can be challenged in federal court as
violative of the federal constitution. (In her response, Mann
cited several opinions, but two others now come to mind
because they arose in Illinois and challenged codified law, yet
were considered by this court on the merits of their Fourteenth
Amendment due process and equal protection grounds, and
were then considered by the Supreme Court on their merits
without inquiry into the availability of a state-constitutional
challenge.
But this court appears to base its actual sanctions
order, the order of September 19, solely upon a finding that
Mann’s legal research was remiss. There is a particular irony
App. H —6
in this, given that this court’s own sua sponte rule to show
cause was premised on unresearched and erroneous
propositions of law (certainly with respect to Illinois law).
More important, though, Mann’s unawareness of
Pennzoil and the Tax Injunction Act is irrelevant unless that
opinion and that Act properly control the outcome. Mann has
argued, credibly, that they do not. And unless they so clearly
should control the outcome that no reasonable attorney could
believe otherwise, sanctions against Mann are no more
justified than would be sanctions against any other attorney
arguing a case that does not turn upon a legal question of first
impression. The sanction against Mann in these
circumstances invokes the so-called British “loser pays” rule
for which there is no legal authority either in Illinois or in this
circuit. |
Mann pleads that she be allowed to file her motion for
reconsideration and obtain a ruling on it before this court
issues the mandate in this matter.
Respectfully submitted,
Beverly Mann
7261 North Campbell Avenue
Chicago, Illinois 60645
(773) 465-4587
App.I-1
In the
United States Court of Appeals
for the Seventh Circuit
In re: Beverly B. Mann )
)
Nos. 99-1750 and 99-3595 )
Emergency Motion for Clarification Concerning the
Motion to Stay Issuance of Mandate and, Alternatively,
Motion to Recall the Mandate
Petitioner Beverly Mann moves this court to clarify
whether the delay in issuing the mandate was intended to
allow her to file a motion for rehearing concerning the
September 19, 2001, issuance of a sanctions order against her
as she had requested via emergency motion filed on
September 21. (She filed a corrected draft on September 28.)
The first paragraph of that motion read:
Petitioner Beverly Mann moves this court to
stay the issuance of the mandate in this matter so as to
enable her to file, and obtain a ruling upon, a Motion
for Rehearing (and Rehearing en banc) regarding the
sanctions order issued on September 19, 2001. She
plans to file her motion for rehearing no later than
September 25, only four business days after the order
was issued and three business days after she received a
copy if it.
The motion was denied on October | in an order
stating that the mandate will issue forthwith, but at this writing
it has not yet been issued. Mann completed her motion for
App. I-2
rehearing shortly after she filed her emergency motion to stay
the mandate, but she did not file it because the court had not
issued an order granting her motion. Now she wonders
whether the court delayed issuing the mandate in order to
allow her to file her motion, and has denied her motion
because she did not file the motion. If so, she would like
leave to file it, and if not she moves to recall the mandate in
order to allow her file the motion.
In her draft motion for rehearing, she notes in addition
to the grounds she summarized in her September
21/September 28 motion that Illinois’ “savings” statute, 735
ILCS § 5/13-217, allows her to refile this action in Illinois
state court once this court’s mandate has issued and the
district court dismisses the lawsuit under the abstention
doctrine, this court has ordered. Thus if Mann is correct that
under Illinois law, this lawsuit and the underlying products-
liability case are considered two lawsuits rather than one, the
basis for the sanction will be nullified, not only because the
work performed by the State’s Attorney’s Office concerning
the substantive issues in this case will be used in that lawsuit
but also because the very premise of the sanction itself — that
under Illinois law these were a single lawsuit rather than two —
will be proved erroneous. (It is partly upon this basis that she
will file an application with Justice Stevens for a writ recalling
the mandate and staying the effect of the sanctions order, if, as
App. 1-3
she expects, this motion is denied; this court, after all is alone
among those involved in either the state-court or the federal-
court case in finding that the two lawsuits really were one, and
Mann will ask for a stay of the sanctions order not only until
her certiorari petition is considered but also until the Illinois
courts pronounce these matters one lawsuit or two. ) The
second paragraph of the earlier motion(s), which Mann
reiterates here, read:
The sanctions order stems from a Rule 53 order
issued on August 31 in which this court resolved the
apo appeals and issued a sua sponte rule to show cause.
None of the assertions upon which the court based its
rule to show cause was addressed or even asserted
previously in the litigation, yet the court ordered the
appellees to submit an estimate of total expenses
(including hourly attorneys’ fees) by the date that
Mann’s response to the rule to show cause was due. In
her motion for rehearing, Mann will argue that the
grounds for the September 19 sanctions order appear
to differ significantly from the court’s stated grounds
for the issuance of the rule to show cause. She also
will argue that she has been denied the procedural due
process for the issuance of sanctions that this court in
In re Hancock, 192, F. 3d 1083 (7" Cir. 1999), and in
In re Rimsat, Ltd., 212 F.3d 1039 (7 Cir. 2000), has
said is required, at least in that she has had no
opportunity whatsoever to address the sanctions
order’s assertions of law and an erroneous
interpretation concerning her comments about
Pennzoil and the Tax Injunction Act.
App. I-4
Mann respectfully asks that this court allow her to file
her motion for rehearing, either before the mandate is issued
or, if the mandate is issued before this court rules on this
motion, via a grant of her motion to recall it.
Respectfully submitted,
Beverly Mann
7261 North Campbell Avenue
Chicago, Illinois 60645
(773) 465-4587
App. J—1
This article appeared in the December 8, 1994, edition of the
Chicago Daily Law Bulletin. It is the article referenced in the
Petition in a footnote on p. 22; a copy of it appears in the
record on appeal two pages after the sticker-tabbed copy of
the state-court order.
What's so nice about a
convict's family?
By BEVERLY MANN
Criminal defense attorney David W. Gleicher, in his article
"Sentencing with the Family in Mind" (Law Bulletin Nov. 30),
discusses a tecent opinion by the 7th U.S. Circuit Court of
Appeals that appears to disband the federal sentencing
guidelines for criminals, at least those of the white-collar
variety, whose family members meet standards established by
no one but the sentencing judge. The article bills the opinion
as an advance in the administration of justice because it allows
a vafiance in sentencing for criminals with particularly needy
families.
If this were the extent of the new rule, it indeed would be such
an advance, but Mr. Gleicher specifies that the single factual
basis for the potential variance in the case that set forth the
new tule is that the criminal has a nice family. His children,
according to the opinion, are straight-A students, and these
model children will suffer "substantially" and (horrors!)
perhaps "irreparably" if their father is subject to the penalties
that the law requires for those who committed the type of
crime he committed. The law does allow for a sentencing
variance in extraordinary circumstances, the court said, and
the basis for the request for variance in the case they were
App. J-2
The federal sentencing guidelines, for all their controversy, do,
when enforced, accomplish what was at least ostensibly their
primary purpose. The guidelines themselves may be racially
and socio-economically charged, but they do serve to eliminate
variations in sentencing based on the conscious or
subconscious racial and socio-economic preferences of the
sentencing judge. Or at least they did.
This recent opinion, U.S. v. Marius Canoy, No. 93-3315, is
extremely important, Mr. Gleicher advises, and surely he is
correct. "Now that family circumstances can be taken into
account,” he says, "it is imperative that the attorney review the
client's family or community situation to determine whether it
is ‘extraordinary’ enough to warrant a departure." Mr. Gleicher
only thinly veils his recognition that the opinion in Canoy
legitimizes precisely the practice that the sentencing
guidelines pledged to end: the practice that places
"extraordinary circumstances" squarely in the eye of the
beholding district judge.
In light of the frivolous grounds that the Canoy opinion
suggests may be potential justification for a variance of the
sentencing guidelines, the opinion advertises this point. The
basis for the District Court's determination that the
circumstances of this defendant, a white-collar defendant, are
extraordinary was neither dire family need due to illness or
handicap of a family member nor any demonstrated concern
by the defendant for the community as exhibited perhaps by
acts such as donations to charity in money or time; neither
circumstance apparently was present in this case. The basis
was that this defendant has children of the type that any
upstanding federal judge would be proud to have - children
who likely resemble, at least in socio-economic status, the
children of the sentencing judge.
The potential for use of such a criterion as subterfuge for socio-
economic criteria, whether consciously or not, is obvious. The
determining factor in the district judge's expressed wish to
reduce this defendant's sentence may not have been that the
App. J-3
defendant's children are "A" students but where they are "A"
students.
Mr. Gleicher specifies that the appellate opinior: expressly
gives broad discretion to the sentencing judge; the trial judge
is in a better position to determine the criminal's family
situation, the opinion states, and "any decision regarding the
family ties departure by a district judge would be given much
discretion by a reviewing court. " So "family values" is now
officially a mitigating circumstance in the sentencing of white-
collar criminals, at least in the 7th Circuit, as is a sentencing
judge's belief that model children such as defendant Canoy's
should have their heretofore model lives disrupted only
It is not only criminal defense attorneys who should take note
of this opinion, as Mr. Gleicher advises, but anyone with a
white-collar job and a nicely situated family. The court has
altered the basis for the penalty for white-collar crime. The
henceforth will be determined not exclusively by the
seriousness of the crime (and related issues) but also, probably,
by the quality of the criminal's family members as perceived by
the sentencing judge. Those in positions of status whose
permitted have a reduced risk of severe penalty for white-collar
criminality; the gamble of such criminal conduct is lessened
for them.
The federal justice system is downright permeated with
deference to litigants who have a lofty social status. Some
litigants themselves inherently hold the high status; large or
defendants or defendant parties in interest in civil lawsuits, do.
Other litigants who can afford to do so usually purchase the
status by retaining as counsel an expensive and clout-heavy
law firm, but few individuals can afford to do so.
Too bad for those who cannot. So entrenched in some federal
courtrooms is this system of status-determined court rulings
that the deference resembles an outright delegation of judicial
App. J-4
authority. Occasionally, judges accord this deference, or
delegation, at the mere suggestion that someone or something
important (a clout-heavy law firm, for example) has, for
whatever reason, an interest in the outcome of the case.
The federal sentencing guidelines at least for a while
undermined, if only in criminal cases, the aura of legitimacy
that deference based on social status has enjoyed in federal
court. The opinion in Canoy formally reinstitutes it in criminal
cases. In civil cases, of course, it simply will continue to be the
norm.
Beverly Mann, a licensed attorney who no longer practices law, is a
freelance writer in Chicago.
App. K -1
BEVERLY B. MANN, Plaintiff-Appellant, v. DOROTHY
BROWN, Clerk of the Circuit Court of Cook County, Illinois,
and COOK COUNTY, ILLINOIS, Defendants-Appellees.
Nos. 99-1750 & 99-3595
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
October 1, 2001
Before:
Hon. Frank H. Easterbrook, Circuit Judge
ORDER
The following are before the court:
1. Emergency Motion for Stay of Mandate So as to
Enable the Filing Of, and Ruling Upon, a Motion for
Rehearing, (And Rehearing En Banc) Re: September 19,
2001, Sanctions Order;
2. Motion to Recall the Mandate and for Leave to File a
Motion for Rehearing (and Rehearing En Banc) Re:
September 19, 2001, Sanctions Order; and
3. (Corrected) Motion for Stay of Issuance of Mandate So
as to Enable the Filing Of, and Ruling Upon, a Motion
for Rehearing, (And Rehearing En Banc) Re: September
19, 2001, Sanctions Order.
It is ORDERED that #1 and #3 are DENIED. #2 is DENIED as
unnecessary. The mandate in these appeals shall issue
forthwith.
App. L-1
This article was written in August, 2000, for publication in an
online legal journal but was not published. It is mention on p.
22 of the Petition.
ARTICLE
The Courts must declare the sense of the law;
and if they should be disposed to exercise WILL
instead of JUDGMENT, the consequences would
be the substitution of their pleasure for that of the
legislative body.
The Federalist No. 78
Log onto the Web site of the Federalist Society For
Law & Public Policy Studies and, there, just below the :
organization’s logo featuring a silhouette of James Madison is
the above passage.
Click on the highlighted link labeled “About the
Federalist Society” and read the group’s Statement of Purpose,
which laments that “law schools and the legal profession are
currently strongly dominated by a form of orthodox liberal
ideology which advocates a centralized and uniform society.”
It hadn’t previously occurred to me that a form of
orthodox liberal ideology is what underlies the ubiquitous
phone-book-size summary judgment motions and the
appellate briefs filed by mega-law-firm senior partners on
behalf of their corporate clients, whom they bill at an hourly
rate of $350 or more. The tobacco industry should request a
refund from its litigation counsel.
(On a personal note, I have litigated, albeit not in
tobacco-related litigation, against partners at the law firm that
App. L-2
for decades has served as the tobacco industry’s lead national
counsel, and they don’t seem strongly dominated by anything
other than their corporate clients’ directives — incessant
demands that suggest no form of orthodox liberal ideology
familiar to me, an orthodox liberal ideologue born and bred.
So it doesn’t, after all, take one to know one; it’s the converse
that’s true, I guess.)
In any event, the Federalist Society to the rescue.
Its Statement of Purpose advises that the association is
founded upon several ideologically conservative legal
precepts, including the one that holds that it is emphatically
(the Statement’s word) the province and duty of the judiciary
to say what the law is, not what it should be. The Society, the
Statement assures, aims both to “promote an awareness” of its
stated tenets and to further the application of them through the
organization’s activities.
Not least among those activities, reading further (okay,
reading between the lines), is its sponsorship of ideologically
vetted candidates for the federal bench who, once sworn, will
say that the law is what the Federalist Society thinks it should
be, irrespective of what the law actually is.
Madison Avenue, eat your heart out. Or hire away the
copy writer who penned that Statement of Purpose.
I happened upon the Federalist Society’s Web page
recently while researching a point for a book I am co-writing,
and it spirited my mind back a few years to the day when I
attended a luncheon meeting of that group’s Chicago chapter.
I had read earlier about that organization’s remarkable co-
optation during the 1980s of the federal judicial nomination
process and its consequential fashioning of that bench in its
own ideological image. So, curious about the Society’s
App. L-3
methods, I ventured into enemy territory rented for the lunch
hour, a latter-day Mata Hari in a business suit.
The featured speaker that day was 7" U.S. Circuit
Court of Appeals Judge Michael S. Kanne, who
unselfconsciously bragged that he recently had achieved the
Federalist Society’s equivalent of a hat trick (my phrase):
Since assuming the bench a few years earlier, he had served as
a luncheon-meeting er for each of the Society’s local
chapters within the 7” Circuit’s three-state geographic
perimeter. And, not content to rest upon those laurels, he was
beginning an encore tour.
Greta Garbo, eat your heart out. Or don a navy
pinstriped suit and spend a strategically chosen lunch hour at
the Midland Hotel.
My recent research and consequent reading of The
Federalist No. 78 coincided roughly with the issuance of
Judge Kanne’s opinion in a case called Gile v. United Airlines
last May. The opinion affirmed a jury’s verdict of $200,000
in compensatory damages to a fired employee of United
Airlines for violation of the Americans With Disabilities Act
and reversed the jury’s verdict of $500,000 in punitive
damages that was based upon a finding, as per the Act, that
the defendant engaged in a “discriminatory practice or
discriminatory practices with malice or reckless indifference
to the federally protected rights of an aggrieved individ
Judge Frank H. Easterbrook concurred. Judge Diane P. Wood
dissented from the reversal of the punitive damages verdict.
The opinion prints out at 13 pages, three full
paragraphs (barely more than one page) of which is devoted to
the reversal of the punitive damages award. (The remainder is
an elaborately detailed apology to United Airlines for the
court’s affirmance of the compensatory damages verdict.)
Quoting from the Supreme Court’s 1999 opinion in Kolstad v.
»
App. L-4
American Dental Ass'n., Judge Kanne acknowledges that the
statutory requisite of “malice or reckless ind:fference”
depends upon the “employer’s knowledge that it may be
acting in violation of federal jaw.” He then says that it is the
province of the judge(s) rather than the jury to weigh the
evidence concerning mialice or reckless indifference, the
explicit language of the ADA notwithstanding,
In the single paragraph in which the opinion states the
court’s reasons for reversing the jury verdict, the two-judge
majority resolves one after another issue of fact in United’s
favor. “McGuffin believed that a shift transfer would not have
accommodated Gile's disability.” “McGuffin in good faith
disagreed with Orlandino that a shift transfer would enable
Gile to work and believed that Gile’s psychological condition
was a nonoccupational, personal problem which did not
trigger any obligation under the ADA on United’s part.”
“United did not regard her condition a disability ...”
“Although United wrongly believed that Gile was not disabled
under the ADA and did not adequately address her
accommodation request, United did not exhibit the requisite
reckless state of mind regarding whether its treatment of Gile
violated the ADA.”
And so forth ...
A petition filed by Gile’s attorneys requesting
rehearing by the entire 1 1-member court (known in legal lingo
as a petition for en banc review) included detailed citation to
the evidentiary record at trial, which showed that every one of
those findings pertained to a contested issue of fact, and also
indicated that a purported witness statement upon which the
appellate court’s opinion purports to rely exists nowhere in the
trial record.
Surprise, surprise. Until, that is, you consider that
overt misrepresentation of the evidentiary record in any
App. L-—5
particular case is simply another method of deceit that federal
appellate judges commonly employ (some judges routinely,
others only occasionally) in manipulating the outcome of
appeals. (Lawyers should see, e.g., Justice Scalia’s angry
dissent to the denial of Supreme Court review in Lambert v.
County of San Francisco, issued Mar. 27, 2000, with Justice’s
Kennedy and Thomas concurring; also Judge Williams’
dissent in Malacara v. City — Madison, 7” Cir., issued Aug.
18, 2000.)
And until, that is, you consider the importance of the
generic issue of punitive damages in the current jockeying
among Republican appellate appointees throughout the
country to fill the two or three presumptively impending
vacancies on the Supreme Court. The horses are out of the
gate, and have been for about a year now.
Which is how the district judges within the 7” Circuit
found themselves briefly last fall with the windfall legal
authority to rewrite state abortion-prohibition legislation under
the guise of what was called precautionary injunctions,
courtesy of an opinion on behalf of a bare majority of the en
banc appellate court in Hope Clinic v. Ryan, reversed last June
by the Supreme Court.
Political media consulting firms, eat your heart out. Or
hire away the strategist who wrote that opinion. His name is
Frank H. Easterbrook, late of Gile in a supporting role, and he
has perfected his skill to a science.
Turning his undivided attention now to the political
constituency that pays his party’s bills, that judge, in an
opinion issued last month in a case called Perez v. Z Frank
Oldsmobile, has placed upon federal judges the mandate to
vacate a jury’s punitive damages awards on whim -— or, rather,
on the basis of some economics formula determined (in what
_ me as the ultimate ex parte communication) by a
App. L-—6
consortium that includes Nobel Prize-winning economist Gary
S. Becker and law professors Cass R. Sunstein, Daniel
Kahneman and David Schkade.
The days of mere stealth subversion of the civil law
are over for that judge, who looks like a Civil War general and
seems to think he is one. (For the Confederacy, I think.)
“Federal judges may, and should, insist that the award
be sensible and justified by a sound theory of deterrence.
Random and freakish punitive awards have no place in federal
court, and intellectual discipline should be maintained,” the
general writes, immediately after citation to a renowned 1989
Supreme Court opinion called Browning-Ferris Industries v.
Kelco Disposal, which, incidentally, holds (quoting from the
Court’s own published summary):
Federal common law does not provide a basis for
disturbing the jury's punitive damages award. In
performing the limited function of a federal appellate
court, this Court perceives no federal common-law
standard, or compelling federal policy, that convinces
the Court it should not accord considerable deference
to a district court's decision not to order a new trial.
The District Court in this case properly instructed the
jury on Vermont law and applied the proper state-law
standard in considering whether the verdict was
excessive, and the Court of Appeals correctly held that
the District Court did not abuse its discretion.
Only in modern federal court does the word
“intellectual” serve as a synonym for the word “ideological.”
Title that portion of Perez (for copyright purposes) The
Unbridled Judicial Authority Manifesto. Or title it Federal
Judges Know Best. | had thought before reading Perez that
that judge has just been bucking for nomination to the
Supreme Court, but now it appears that elevation to the
App. L-7
Supreme Court may be only his fallback ambition. I think he
actually has his sights set a bit higher: on a Nobel prize for
(law and) economics, although, given his spin on Browning-
Ferris, he probably is more likely to receive a Pulitzer, in the
category of works of fiction.
“Punitive damages should not be used as an escape
hatch, subject only to the whim of judge and jury,” he writes
in Perez. No, but enforcement of punitive damages awards
should be subject only to the whim of judges whose personal
ambitions, political ideology or career-advancement debts
trump established law.
And, speaking of escape hatches, that judge might
want to examine his own and his colleagues’ use of his court’s
own self-promulgated Circuit Rule 53, which is billed as a
“Plan for Publication of Opinions of the Seventh Circuit
Promulgated Pursuant to Resolution of the Judicial
Conference of the United States” but which actually is a plan
for non-publication of judicial opinions. (That court did, after
all, publish its opinions before its plan for publication first was
published some two decades ago. Those rules, the subject of
much controversy in legal circles, effectively establish
appellate panels as de facto committees of monarchs,
operating below the radar screen of the general news media
and answerable to absolutely no one, provided that the
monarchs play their cards with at least a modicum of skill.)
notice
Madison Avenue, éat your heart out. As judicial
escape hatches go, that Circuit’s Rule 53 and the Rule’s
counterparts in the other federal circuits have proven mighty
reliable ones — transparent devices by which proverbial trees
growing deep in the forest fall with crashing thuds that no one
who really matters can hear.
I hesitate te handicap the Supreme Court Stakes at so
early a stage. The race is hard to follow, even with binoculars,
App. L-8
as several of the entrants are wearing the same-colored racing
silks: red, white and blue, in honor of James Madison (in
silhouette) and The Federalist No. 78. But with his roles in
Hope Clinic, Perez and Gile, he surely has improved upon his
gate position.
Easterbrook by a furlong? Too early to tell, but he
certainly shows no sign of scratching from the race. And this
may be the only derby in history in which at least one of the
contestants changes his racing colors mid-contest, in this
instance to a certain shade of deep green.
As for Gile, the petition for en banc rehearing was
denied, with three dissenting votes, none of them from judges
entered in the current Stakes.
The rehearing petition in the Gile case, filed on June
5, noted the imminence of what promised to be a defining
Supreme Court ruling, in a case called Reeves v. Sanderson
Plumbing Prods., Inc., concerning judicial authority to vacate
jury verdicts for plaintiffs. A week later, the Supreme Court
issued its opinion in Reeves and did reverse the reversal by the
5" U.S. Circuit Court of Appeals of the jury’s verdict for the
plaintiff in that case, an Age Discrimination in Employment
case. The Court reiterated and reemphasized these seminal
rules of federal common law that the lower federal courts
routinely ignore: Courts must draw all reasonable inferences
in favor of the nonmoving party, and may not make credibility
determinations or weigh the evidence. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions, not
those of a judge. In ruling upon dispositive motions, courts
must disregard all evidence favorable to the moving party that
the jury is not required to believe.
Most of the legal trade journals have cast Reeves as
significant only in employment-related litigation, but that
App. L-9
circumscription belies the opinion’s statement of law. Reeves
is significant to every lawsuit in which a party’s knowledge,
intent, motive, understanding, are matters in controversy.
Except, that is, here in the 7” U.S. Circuit, where the
appeals court has moved quickly to declare its independence
from the constraints of Reeves. (Lawyers should see, e.g.,
Malacara v. City of Madison, mentioned above, and Estate of
Novack v. County of Wood, 7 Cir., Aug. 7, 2000, and /nsolia
v. Philip Morris Inc., 7" Cir., Jun. 16, 2000, as well as the
order denying the en banc rehearing petition in Gile.) And,
probably, except in the other federal circuits where Supreme
Court Stakes entrants and other Federalist Society types reign.
It’s not quite the Boston Tea Party, but still, James
Madison would be proud. So would the National Chamber of
Commerce and the League of Counties and Municipalities.
There are enough kangaroos on the federal appeals courts to
stock an Australian wildlife preserve.
The Reeves case received little notice in the legal
trade journals during its Supreme Court pendency, but it has
received a good deal of notice since the issuance of the
opinion. One published comment notable for its blind
optimism, from a lawyer described as a veteran of
employment lawsuits in the 5" U.S. Circuit, was that “the
party’s over.” But, no, the party’s not yet over. It’s just
changed slightly, ever so slightly. It’s now officially a
costume party, although one at which the disguises are as
transparent as shrink wrap.
Conveniently for the Stakes contestants and their
ideological allies, the Supreme Court in Reeves merely
reiterated a rule of federal common law — that is, a rule of law
pronounced initially by the court itself, albeit in this instance
one that stems historically from the Seventh Amendment’s
stated right to jury determination of issues of fact in most civil
App. L- 10.
lawsuits. The Reeves opinion did not, for example, invalidate
a statute as unconstitutional, a type of ruling not amenable to
lower-court shoulder shrugging and brazen disregard. And as
every federal appellate judge knows, federal judges can, at
their will, disregard common law — even federal common law
enunciated by the Supreme Court — as long as they avoid
overtly stating that that is what they are doing.
It is a time-tested tradition among the modern federal
bench. I think the legal authority for it is The Federalist No.
78.
App. M - 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BEVERLY B. MANN,
Plaintiff,
No. 84 C 11020
a a a
) Wayne R. Andersen,
) District Judge
THE CITY OF CHICAGO, et al.,)
Defendants. )
Motion Pursuant to Fed. R. Civ. P. 60(b) (5) and (6) to
Vacate the Final Judgments Entered in This Case on
February 10, 1 and March 13, 1998
The plaintiff, Beverly B. Mann, pro se, moves this
court pursuant to Federal Rule of Civil Procedure 60(b) (5)
and (6) to vacate the final judgments entered in this lawsuit on
February 10, 1992, and March 13, 1998, as they are void. In
support, she states, the following:
Mann bases this motion upon the statement of law
enunciated by the 8” U.S. Circuit Court of Appeals in
Anastasoff v. U.S.A., No. 99-3917EM (8" Cir. Aug. 22, 2000),
and in Kaler v. Overboe, No. 00-6005ND (8" Cir. Aug. 29,
2000). The Anastasoff opinion, written by Judge Richard S.
Amold, speaks eloquently and at length in finding
unconstitutional a subsection of the 8th Circuit's rule that is
materially identical to this circuit’s Rule 53(b)(2), which
divests that court’s unpublished opinions of precedential legal
effect in any but the case in which the unpublished opinion
was issued. She adopts the legal analysis of those opinions as
her own and includes among her supporting exhibits a copy of
Anastosoff, as Exhibit 3.
Mann also bases her motion upon the combined effect
of the U.S. Supreme Court’s intermediate opinion in Fiore v.
App. M-2
White, 120 S.Ct. 469 (Nov. 30, 1999), in which the Court
certified a question to the Pennsylvania Supreme Court, and
the Pennsylvania Supreme Court’s opinion in Fiore v. White,
No. 269 (Aug. 21, 2000), answering the question certified to it
in the affirmative. (If this court wishes to defer its ruling on
this motion until the Supreme Court issues its final opinion in
Fiore sometime this winter, Mann certainly would not object.)
She further bases her motion upon her jaw-droppingly
astonishing discovery approximately two weeks ago that
Judge Ilana Diamond Rovner, one of the three members of the
appellate panel that heard the initial appeal in this lawsuit, has
a son, her only child, who at the time of resolution of that
appeal on January 19, 1996, was a 27-year-old recent law
school graduate employed by the City of Chicago, a key
defendant in this lawsuit (in which issues of law regarding
allegations of political patronage and politically-based motive
have predominated throughout), as a political operative in the
Mayor’s Office of Policy. (See Exhibits 10-12,
accompanying.)
Regarding Anastosoff, Mann offers as Exhibits 1 and 2
two journal articles titled respectively “8th Circuit Drops a
Bombshell” (The Recorder, Aug. 24, 2000) and “Stealth
Decisions Under Fire,” (Law.com, Sept. 4, 2000, republished
Sept. 5, 2000, in Legal Times as “Unpublished Opinions May
Gain New Impact Due to Landmark Federal Appeals Panel
Decision”). The two articles summarize Anastosoff and note
its potential effect upon continued legal validity of
unpublished resolution of appeals that materially depart from
the controlling legal authority existing at the time of that
appellate resolution and that nonetheless, by operation of
circuit rule, lack precedential value and therefore leave the
law itself unchanged.
The second of the two journal articles references an
article written by Judge Arnold that presaged Anastasoff. The
article, titled “Unpublished Opinions: A Comment”, published
in the Summer, 1999, edition of The Journal of Appellate
Practice and Procedure, stunningly acknowledges what has
App. M -3
been understood by the victims of those circuit rules as a
moral certainty: that canned statements that the court deemed
the grounds for appeal frivolous (a.k.a... unworthy of the
court’s discussion and even of the court’s mention) are, likely
as not, to be a flat-out lie, and that indeed the canned
obligatory representations by the court that it even knew what
the issues on appeal were and that it actually considered them
before resolving the appeal also are, likely as not, to be a flat-
out lie.
The article, as much as the Anastosoff opinion itself, is
a remarkable break from the judicial code of silence that has
enabled the judicial practices at issue to continue — decade
after decade. The article is particularly significant in its
account of the casual manner in which one after another after
another appellate panel outright lies about the manner in
which a substantial number of appeals are resolved. Mann
includes as Exhibit 4 a copy of the article, and incorporates its
statements as part of this motion.
As for Anastosoff itself, the opinion finds that the
circuit rules that divest the resolution of some appeals of their
constitutional stare decisis status violate Article III of the
Constitution, because they confer upon those courts what, by
its nature, is a legislative rather than a juridical function. Thus
Anastosoff finds an outright lack of court jurisdiction to issue
orders that are effective only in a singe case and that depart
materially from established law.
It would seem to follow then that such orders az void;
they simply lack legal validity.
In Mann’s case, each of the unpublished orders
resolving the two appeals contains, by its operation, holdings
that depart significantly from federal law as it existed before
the issuance of the respective unpublished order and as it
exists today, as reinforced by numerous published opinions
published since the resolution of Mann’s appeals. The order
resolving the second of the two appeals not only departs from
long-established and continuing rules of federal law but also
App. M=>4
from long-established and continuing rules of Illinois state
law.
(E.g. Illinois law held, and holds, that issues
concerning motive are questions of fact to be determined by
the factfinder after consideration of the evidentiary rather than
— as the both the district court and the appellate court held
without annotation in Mann’s case — questions of law to be
determined without reference to the evidentiary record. Also
e.g., Illinois law required, and requires, that contract disputes
be resolved by reference to the terms stated in the contract at
issue rather than by an appellate court without reference to the
terms of that contract. Also e.g., Illinois law requires that tort
damages be determined by the trier of fact after consideration
of the evidence regarding the nature and extent of the injuries
sustained, rather that by an appellate court without reference
to the evidentiary record — as the appellate court did, again
without annotation to legal authority, in Mann’s case.)
The unpublished orders resolving those two appeals in
Mann’s case therefore constitute de facto bills of attainder,
thus they also violate Article I, Section 9 (as well as Article
Ii).
Article I, Section 9, states: No Bill of Attainder or ex
post facto Law shall be passed.
Indeed, in Mann’s case, Judge Richard A. Posner, as
chief judge of the 7 Circuit Court of Appeals last winter, has
found in resolving complaints of judicial misconduct that
Mann brought against the judicial panel in her second appeal
that the panel had, in effect, passed, by judicial fiat, several
bills of attainder in her case. Mann had alleged in her
complaints that those judges deliberately misrepresented in
their unpublished order of resolution that they knew the
grounds upon which Mann had brought that appeal (and
appeal that actually was a set of three consolidated appeals,
each of which addressed rulings that stated various purported
rules of law that were independent of one another and that
therefore required separate consideration).
App. M-5
Judge Posner dismissed the complaints upon a finding that
there was “absolutely no evidence” that the panel was
unaware of the various grounds for appeal, and, inferentially,
the body of settled law upon which Mann had brought her
appeals. (See Exhibits 5-9, accompanying.) Given the vast
body of such precedent and the appellate panel’s stark
deviation from that body of law in Mann’s case, Judge
Posner’s finding acknowledges that the court consciously
exempted Mann’s case from application of the law, some of it
written by Judge Posner.
Accepting the analysis in Anastasoff, the court lacked
the legal authority, and therefore the jurisdiction, to do that.
By that analysis, the appellate court orders issued in the two
appeals in Mann’s case are void.'
Sometime before she presents this motion to the court,
Mann will supplement it with a supporting memorandum in
which she will detail the relationship between Anastasoff and
Mann’s case. For now, though, she notes the uncanny parallel
between the first three questions presented in the certiorari
petition that Mann filed with the Supreme Court last winter
and the fist four pages of the Argument section of that
petition, on the one hand, and Judge Arnold’s discussion in
Anastasoff, particularly the discussion that addresses material
' On August 28, 2000, Mann filed a motion pursuant to Circuit
Rule 53(d)(3) with the court of appeals citing Anastosoff and
requesting publication of the Rule 53 orders entered in the two
earlier appeals in this case. The court clerk’s office did not
process the motion, however, instead returning the copies of it
to Mann along with a letter from the pro se clerk instructing
her that (notwithstanding any such indication in the wording
of Rule 53), her motion must be phrased as a motion to recall
the mandate, and that, in any event, she would have to file
separate motions pertaining to each set of appeals (rather than
a single consolidated motion, as her submitted motion was).
Mann did not file the motions because she recognizes that that
court does not grant motions to recall mandates.
App. M - 6
considerations beyond those he discussed in his published
journal article a year earlier. (Mann has joked that her
certiorari petition may have been granted, after all — by the 8"
Circuit Court of Appeals. But, as she will detail in her
supporting memorandum, she has some reason to believe that
there actually is an immediate connection between her petition
and Anastasoff.) Those first three Questions Presented were:
1. Whether a federal circuit rule that permits the resolution
of appeals by unpublished order may entitle an appellate
court to avoid applying extensive pertinent settled law to
arbitrarily selected cases, or whether, instead, a federal
appellate court's use of that rule as a device by which to
exempt some cases from application of the law actually
creates two parallel bodies of law utterly independent of
each other and thus violates the fundamental dictate of the
Fifth Amendment's Due Process Clause.
2. Whether a federal appellate court must apply the
doctrines of the law of the case and of waiver of claims and
defenses as those doctrines are delineated in nearly 60
published opinions issued -by that same appellate court
within the last five years and by this Court in Agostini v.
Felton, 521 U.S. 203 (1997), when a plaintiff asserts those
doctrines in a successive appeal as having precluded
defenses after fourteen years of litigation, or whether,
instead, appellate-court application of those doctrines is
merely optional as long as the appeal is resolved via
unpublished (and mostly unexplained) order.
3. Whether, prompted by a belief that unpublished
appellate resolution that deviates from universally
established law is of no large importance because it does
not actually alter the law, an en banc federal appellate court
is entitled to promulgate an internal court policy that
prohibits it from hearing, en banc, any appeal that was
resolved by unpublished order — or whether, instead, such a
App. M-7
policy itself fundamentally and impermissibly alters the
law by effectively (albeit quietly) dismantling the Equal
Protection component of the Fifth Amendment's Due
Process Clause and perhaps the Due Process Clause itself.
As this court knows, Mann earlier filed two motions
with this court pursuant to Fed. R. Civ. P. (b)(5) and (6). The
initial one, filed on April 17, 2000, moves to vacate the order
entered on July 14, 1986, that dismissed a key count in
Mann’s operative complaint pursuant to Fed. R. Civ. P. 12(b).
That motion is based largely upon the issuance of the U.S.
Supreme Court's opinion in Village of Willowbrook v. Olech,
120 S.Ct. 1073 (Feb. 23, 2000). Her second motion, filed on
August 1, 2000, is based upon the U.S. Supreme Court
opinion in Reeves v. Sanderson Plumbing Products, Inc.,
supra., reaffirming (or affirming, via reversal of a judgment as
a matter of law entered by an appeals court in favor of the
defendants in that case) unanimously that determinations
concerning the state of mind — e.g., motive, belief, extent of
culpable knowledge, intent — of defendants in civil litigation is
a question of fact rather than a question of law and that, as
such, these determinations must be made by the fact finder
upon hearing and considering the evidence.
Both motions remain pending, awaiting a ruling on
Mann’s mandamus petition to the appellate court seeking the
recusal of District Judge Wayne R. Andersen. Mann has
concluded that the appellate court will never resolve her
mandamus petition, so she will ask this court to rule on her
pending motions (and this one, once the Fiore opinion is
issued), notwithstanding her grounds for seeking Judge
Andersen’s removal from this litigation.
In support of those motions, Mann filed extensive
exhibits, most significantly a complete five-volume set of her
filings with the Supreme Court last winter. (The set includes
her certiorari petition, two supplements to that petition, her
petition for rehearing and a supplement to the petition for
rehearing.) Those documents delineate with det
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.