Opposition Brief — Sherman v. Community Consolidated School District 21

Supreme Court, US

FILED

No. 92-1377

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

ROBERT IAN SHERMAN, for himself and as natural

guardian for RICHARD HARRY SHERMAN, a minor son,

Petitioners,

.-

COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21

OF WHEELING TOWNSHIP, LLOYD DESCARPENTRIE,

School District Superintendent, and DR. FERNE GARRETT,

Principal of Riley School, individually and as representatives

of the State of Illinois, and ROLAND W. BURRIS,

Attorney General of the State of Illinois,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

ROLAND W. BURRIS, ATTORNEY GENERAL

OF THE STATE OF ILLINOIS

ROLAND W. BURRIS

Attorney General of Illinois

ROSALYN B. KAPLAN

Solicitor General

Counsel of Record

100 W. Randolph St., 12th Floor

Chicago, Ilinois 60601

(312) 814-3312

Attorneys for Respondent

Of Counsel: ROLAND W. BURRIS

SUSAN FREDERICK RHODES

Assistant Attorney General

100 W. Randolph St., 12th Floor

Chicago, Illinois 60601

(312) 814-2587

Printed by Authority of the State of Illinois (P.O. 35812—55—5-5-93)

i

LIST OF PARTIES

The parties to the proceedings below were the peti-

tioners, Robert Ian Sherman, for himself and as natural

guardian for R chard Harry Sherman, a minor son, and

the respondents, Community Consolidated School District

21 of Wheeling Township, Lloyd Descarpentrie, School

District Superintendent, Dr. Ferne Garrett, Principal of

Riley School, individually and as representatives of the

State of Illinois, and Roland W. Burris, Attorney General

of the State of IIlinois.!

1 The petitioners’did not list Roland W. Burris, Attorney General

of the State of Illinois, as a party to the proceedings below or

as a respondent before this Court. Rule 12.4 provides that any

party to the proceeding whose judgment is sought to be reviewed

is deemed a party. Rule 14.1(b) further provides that the petition

is to include a list of all parties to the proceeding below. Further,

the petitioners failed to serve the Illinois Attorney General with

the petition, which draws the constitutionality of a state statute

into question, in violation of Rule 29.4(c).

il

TABLE OF CONTENTS

ane OF Pee és caekn cs cians eee

TABLE OF AUTHORITIES ...........00se0:

STATUTORY PROVISIONS ........cssece0e

STATEMENT OF THE CASE ...............

REASONS WHY THE PETITION

SEDO Rsd) TE CMGINUIGED caves ccsnnseaensa ses

THE DECISION S3ELOW DOES NOT RAISE

THE QUESTIONS PRESENTED IN THE PETI-

pet SPT ererer rere Tey Perr es

A.

The Seventh Circuit Did Not Hold That

Lemon v. Kurtzman No Longer Supplies

The Calculus Applicable To Establishment

eR Pr ree

The Seventh Circuit Did Not Adopt The

Doctrine Of ‘Ceremonial Deism”’ In Place

Of The Lemon Analysis ..............

The Seventh Circuit Did Not Rewrite An

Ambiguous Statute And Construe It As

Non-Mandatory Contrary To This Court’s

TUE bac cdkecdancwkunesesebeses

II.

THE FACTS OF THIS CASE DO NOT RAISE

THE QUESTION PRESENTED IN THE PETI-

i BPE TEeEeTTTTeec errr rye rr ore csr ss

10

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TABLE OF AUTHORITIES

Cases PAGE

Abington School District v. Schempp, 374 U.S. 203

TCG C LCR ECG DS eked bocce wees sesesas 9,13

County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573 (1989) .............08. 9,13

Engel v. Vitale, 370 U.S. 421 (1962) .......... 9,13

Houston v. Hill, 482 U.S. 451 (1987) .......... 10

Lee v. Weisman, USS. , 112 S. Ct. 2649,

SS RD ae | 8, 13

Lemon v. Kurtzman, 403 U.S. 602 (1971) ...... 7,8, 10

Lynch v. Donnelly, 465 U.S. 668 (1984) ....... 8, 9,13

West Virginia State Board of Education v. Bar-

eaten, Bae Us. GEE (ADEE) ... ww. cee encss 7,10, 11

Constitutional Provision

i ag ED Orr rere Tere eee eee passim

Statute

ee a) rr passim

>

No. 92-1377

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

ROBERT IAN SHERMAN, for himself and as natural

guardian for RICHARD HARRY SHERMAN, a minor son,

Petitioners,

Ve

COMMUNITY CONSOLIDATED SCHOOL DISTRICT 21

OF WHEELING TOWNSHIP, LLOYD DESCARPENTRIE,

School District Superintendent, and DR. FERNE GARRETT,

Principal of Riley School, individually and as representatives

of the State of Illinois, and ROLAND W. BURRIS,

Attorney General of the State of Illinois,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

ROLAND W. BURRIS, ATTORNEY GENERAL

OF THE STATE OF ILLINOIS

The respondent, Roland W. Burris, Attorney General of

the State of Illinois, respectfully requests that this Court

deny the petition for a writ of certiorari, seeking review

of the opinion of the United States Court of Appeals for

the Seventh Circuit, decided on November 20, 1992.

-

STATUTORY PROVISIONS

105 ILCS 5/27-3 (1992) (Ill. Rev. Stat.

1991, ch. 122, par. 27-3)

§ 27-3. Patriotism and principles of representative gov-

ernment—Proper use of flag—Method of voting—Pledge

of Allegiance. American patriotism and the principles of

~ representative government, as enunciated in the American

Declaration of Independence, the Constitution of the United

States of America, and the Constitution of the State of

Illinois, and the proper use and display of the American

flag, shall be taught in all public schools and other educa-

tional institutions supported or maintained in whole or in

part by public funds. No student shall receive a certificate

of graduation without passing a satisfactory examination

upon such subjects.

Instruction shall be given in all such schools and institu-

tions in the method of voting at elections by means of the

Australian Ballot system and the method.of the counting

of votes for candidates.

The Pledge of Allegiance shall be recited each school

day by pupils in elementary educational institutions sup-

ported or maintained in whole or in part by public funds.

2 Pursuant to P.A. 87-1005, § 5.04, eff. January 20, 1993, the IJIli-

nois Supreme Court enacted New Rule 6, requiring citation to the

new Illinois Compiled Statutes (ILCS). New Rule 6 provides that

aed to January 1, 1997, statutory citations may be made to the

llinois Revised Statutes instead of or in addition to the Illinois

Compiled Statutes.

—3—

STATEMENT OF THE CASE

Plaintiffs, Robert Ian Sherman and Richard Harry Sher-

man (“the Shermans’’),? practicing atheists, brought suit

in the United States District Court for the Northern Dis-

trict of Illinois, Eastern Division, on November 1, 1988,

against defendants Community Consolidated School Dist.

21 of Wheeling Township, Lloyd Descarpentrie, School

strict Superintendent, and Dr. Ferne Garrett, Principal

of Riley School, individually and as representatives of the

State of Illinois (‘“‘the School Defendants’’), seeking a dec-

laration that a portion of Ill. Rev. Stat. 1989, ch. 122, par.

27-3, requiring the daily recitation of the pledge of alle-

giance in the elementary schools of the State, is uncon-

stitutional. R. 1.

On July 27, 1989, the Shermans filed a re-amended com-

plaint naming the Attorney General of the State of Illinois

as a party defendant,* and setting forth two counts: count

I for declaratory judgment and count II for damages pur-

suant to 42 U.S.C. Sections 1983 and 1988. R. 64.

The Shermans’ re-amended complaint alleged that the

pledge of allegiance statute violates the Establishment

Clause of the First Amendment because daily recitation

3_ Upon initiation of the suit, the Society of Separationists, Inc.

was listed as a party plaintiff. The Society was dismissed from

the suit for lack of standing by the district court. R. 96.

4 At the time the Shermans filed their Re-Amended Complaint,

Neil Hartigan was the Attorney General of the State of Illinois.

Neil Hartigan ceased to hold the office of Attorney General of the

State of Illinois as of January 14, 1991, when Roland W. Burris

succeeded to the office. Therefore, pursuant to Fed. R. App. P.

43(c), Roland W. Burris was automatically substituted as a party.

a

of the pledge implicates a government sponsorship of a

commitment to a belief in a supreme being. Jd. The Sher-

mass alleged that the Defendants intend to promote reli-

gion by requiring the recitation of the pledge of allegiance

and that the statute, itself, is intended to further religious

ends. Id.

The re-amended complaint also alleged that the pledge

of allegiance statute violates the Free Exercise Clause of

the_First Amendment, in that the statute compels an af-

firmation in a belief and an attitude of mind. Jd. Further,

the Shermans alleged that the statute violates the Equal

Protection Clause of the Fourteenth Amendment because

it creates a favored class of believers over non-believers

without a compelling state interest, infringes upon Richard

Sherman’s right to be free from religious ceremonies in

a place he is required by law to be, and subjects Richard

Sherman to the possible imposition of sanctions for non-

compliance with the statute. Jd.

On February 28, 1991, the district court entered its final

memorandum opinion and order granting Defendant At-

torney General’s motion for summary judgment. R. 104;

758 F. Supp. 1244 (N.D. Ill. 1991). The court held that

the pledge of allegiance statute does not violate the Es-

tablishment Clause, applying the test enunciated in Lemon

v. Kurtzman, 403 U.S. 602 (1971). R. 104; 758 F. Supp.

at 1246-48. The court found that the text of the statute

and its legislative history reveal that the purpose of the

pledge law is to teach secular, patriotic values rather than

religious values; the primary effect of the statute is to

teach students the principles under which our government

operates and not to advance any particular religious be-

liefs; and there was an absence of any excessive entangle-

ment of government with religion. /d.

=

The district court also held that the statute does not

violate the Free Exercise Clause, in that the statute does

not state that ‘all’ students must recite the pledge of

allegiance and does not contain any penalty. R. 104; 758

F. Supp. at 1249. As applied to the Shermans, the court

held that the statute does not violate the Free Exercise

Clause since Richard Sherman has never been required

to participate in the Pledge of Allegiance, nor has he ever

been punished or threatened with punishment for his re-

fusal to participate. R. 104; 758 F. Supp. at 1251..The

court also held that the statute is not violative of the

Equal Protection Clause because it is rationally related

to the legitimate state interest of instilling knowledge of,

and appreciation for, patriotic values in public school stu-

dents. R. 104; 758 F. Supp. at 1251.

The United States Court of Appeals for the Seventh

Circuit affirmed the judgment of the district court on No-

vember 20, 1992. 980 F.2d 437 (7th Cir. 1992).-However,

the Seventh Circuit vacated the judgment of the district

court with respect to the federal court’s jurisdiction over

the Illinois Attorney General. 980 F.2d at 440-441. The

Seventh Circuit held that the Eleventh Amendment barred

the Shermans’ claims for declaratory judgment and for

damages against the Illinois Attorney General. Jd.

The Seventh Circuit held that the pledge of allegiance

statute did not violate the Free Exercise Clause of the

First Amendment. /d., at 443. The court interpreted the

statute as requiring school officials to lead a daily recita-

tion of the pledge, rather than compelling pupils to recite

the pledge. The court found that this construction was

consistent with the preference under Illinois law to resolve

any ambiguity in favor of the constitutionality of a statute.

Id. As the statute was applied to Richard Sherman, the

Seventh Circuit held that the statute did not compel Rich-

ard to recite the pledge. /d.

—f—

The Seventh Circuit discussed the social pressure to con-

form in the public school setting and found that a pupil’s

exception to the patriotic values taught in the public schools, |

such as the pledge of allegiance, does not implicate free

exercise concerns. /d., at 444-45. The Seventh Circuit re-

fused to extend the reasoning of the school prayer cases

to a challenge to the curriculum chosen by school officials,

finding that a general assimilation of religion to patriotism

and other values would allow challenges to the choice of

textbooks, classroom instruction and testing methods in

the public schools under the guise of the religion clauses

of the First Amendment. 980 F.2d at 444-45.

The Seventh Circuit analyzed the Establishment Clause

issue as whether ceremonial references in civic life to a

deity are understood as prayer or support for religion. Jd.

The Seventh Circuit considered the intent of the drafters

of the First Amendment, the tradition of ceremonial refer-

ences to a deity, and the Supreme Court’s recognition that

ceremonial references to God are distinct from religious

exercises, in concluding that such references are not deemed

to be an establishment of religion. Jd.

The Seventh Circuit found that application of the Lemon

test to the Establishment Clause challenge here would not

be helpful, since the Lemon test was not devised to iden-

tify religious activity concealed within a civic exercise. 980

F.2d at 445. Further, the Seventh Circuit found that since

the Supreme Court did not adhere to application of the

Lemon test in deciding the Establishment Clause chal-

lenge in Lee v. Weisman, __. US. , 112 S. Ct. 2649,

102 L. Ed. 2d 467 (1992), the court was not disposed to

resolve the Shermans’ case by a methodical application

of the Lemon test. 980 F.2d at 445.

= ae

REASONS WHY THE PETITION

SHOULD BE DENIED

I.

THE DECISION BELOW DOES NOT RAISE THE QUES-

TIONS PRESENTED IN THE PETITION.

The Shermans attempt to demonstrate in their petition

that the Seventh Circuit erred in failing to apply Lemon

v. Kurtzman, 403 U.S. 602 (1971), to the instant case be-

cause both cases involve the Establishment Clause and

religion in public education. The Shermans argue that the

Seventh Circuit effectively held that Lemon is “no longer

good law.” (p. 7). The Shermans also claim that under this

Court’s holding in West Virginia State Board of Educa-

tion v. Barnette, 319 U.S. 624 (1943), the pledge of alle-

giance statute is unconstitutional on its face.

Contrary to the Shermans’ questions presented for re-

view, the Seventh Circuit did not hold that Lemen no

longer supplies the calculus applicable to Establishment

Clause cases, nor did the Seventh Circuit adopt the doc-

trine of “ceremonial deism” in place of the Lemon anal-

ysis. Additionally, the Seventh Circuit’s construction of

the pledge of allegiance statute as non-mandatory com-

ports with this Court’s holding in Barnette. The Seventh

Circuit’s decision is not inconsistent with Lemon, Lee or

Barnette. Therefore, no reason exists for the grant of

certiorari.

A. The Seventh Circuit Did Not Hold That Lemon v. Kurtz-

man No Longer Supplies The Calculus Applicable To

Establishment Clause Cases.

The Seventh Circuit analyzed the issue presented by

the instant case as whether ceremonial references in civic

‘

a Se

life to a deity are understood as a prayer. 980 F.2d at

445. The Seventh Circuit correctly found that the test

enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971),

to determine whether a statute which touches upon re-

ligion will be found to be permissible under the Establish-

ment Clause “was not devised to identify prayer smuggled

into civic exercises, . . .”’. 980 F.2d at 445. The Seventh

Circuit followed this Court’s reasoning in Lee v. Weisman,

___ US. __., 112 S. Ct. 2649, 102 L. Ed. 2d 467 (1992),

where this Court found that it was unnecessary to apply

the three-part test set forth in Lemon to resolve an Es-

tablishment Clause challenge involving the public schools.

This Court’s recognition that Lemon may not provide the

appropriate analysis for every case involving the Estab-

lishment Clause and the public schools lent support to the

Seventh Circuit’s conclusion that the Lemon test would

not be of assistance in resolving the issue in this case.

980 F.2d at 445.

As noted by the Shermans, a fair reading of Lee v.

Weisman reveals that the opinion did not overrule Lemon

v. Kurtzman. (p. 8). Thus, the Seventh Circuit’s applica-

tion of Lee, rather than Lemon, was not a rejection of

Lemon. 980 F.2d at 445. As in Lee, the Lemon test sim-

ply did not provide the appropriate analysis to determine

whether the pledge of allegiance, with its reference to

“one Nation under God,” is a religious exercise prohib-

ited under the Establishment Clause. The Shermans’ at-

tempt to force the pledge of allegiance statute into a for-

mulaic rule is inconsistent with this Court’s recognition

that the Establishment Clause is not a precise provision

capable of ready application. wynch v. Donnelly, 465 US.

668, 679-80 (1984).

line

B. The Seventh Circuit Did Not Adopt The Doctrine Of

‘Ceremonial Deism’’ In Place Of The Lemon Analysis.

The Shermans argue that the Seventh Circuit held that

the ceremonial invocation of a deity will pass constitutional

muster under the Establishment Clause if the Founding

Fathers sanctioned its use. (p. 8). The Seventh Circuit did

not so hold, nor did the Seventh Circuit limit its analysis

of the issue to a review of the history of the Establish-

ment Clause. Rather, the Seventh Circuit considered not

only the intent of the drafters of the First Amendment,

but also the tradition of ceremonial references to a deity

in civic life and this Court’s recognition of the distinction

between ceremonial references to God and religious ex-

ercises. It certainly was not error for the Seventh Cir-

cuit to follow this Court’s implicit approval of the refer-

ence to “God” in the pledge of allegiance as not violative

of the Establishment Clause. See Engel v. Vitale, 370 U.S.

421, 485 n.21 (1962); Abington School District v. Schempp,

374 U.S. 203, 303-4 (1963) (Brennan, J., concurring); id.,

at 306-8 (Goldberg, J., joined by Harlan, J., concurring);

Lynch v. Donnelly, 465 U.S. 668, 676 (1984); id., at 693

(O’Connor, J., concurring); County of Allegheny v. Amer-

wan Civil Liberties Union, 492 U.S. 573, 602-3 (1989).

Although the Shermans argue that the Seventh Circuit

erred in failing to apply the three-part Lemon test, the

Shermans present no argument that application of the

Lemon test would have led to a ruling in their favor. The

result of this case would have been no different under

the Lemon analysis.

The purpose of the pledge of allegiance statute is to

teach secular patriotic values rather than religious values.

The primary effect of the statute is to teach students the

wtiins

principles under which our government operates and not

to advance any particular religious beliefs. The statute

does not result in any excessive entanglement of the state

with religion. Thus, application of the Lemon test to the

pledge of allegiance statute leads to the conclusion that

the statute does not offend the Establishment Clause.

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

C. The Seventh Circuit Did Not Rewrite An Ambiguous

Statute And Construe It As Non-Mandatory Contrary To

This Court’s Precedents.

The Shermans argue that the language of the pledge

of allegiance statute is unambiguous and compulsory and

the Seventh Circuit erred in rewriting the statute in order

to save it. (pp. 12-14). The Shermans argue that the Sev-

enth Circuit’s construction of the statute as non-mandatory

conflicts with this Court’s holding in Houston v. Hill, 482

U.S. 451 (1987), that statutory language that is plain and

unambiguous is not susceptible of a limiting construction.

The pledge of allegiance statute, however, is not unam-

biguous with regard to the Shermans’ argument that the

statute is mandatory, since the statute contains no pro-

vision to compel or punish pupils for the failure to recite

the pledge of allegiance. It was not inconsistent with Hill

for the Seventh Circuit to construe the statute as not un-

constitutional. Jd., at 468.

The Shermans further argue that the Seventh Circuit’s

construction of the pledge of allegiance statute was erro-

neous because the statute in unconstitutional on its face,

under this Court’s holding in West Virginia State Board

of Education v. Barnette, 319 U.S. 624 (1943). However,

there is a distinct difference between the pledge of alle-

giance statute and the regulation construed in Barnette,

as noted by the Seventh Circuit. 980 F.2d at 442-45.

_ |

In Barnette, the school board adopted a resolution that

refusal to recite the pledge of allegiance would be re-

garded as insubordination and would subject the pupil to

disciplinary action. In the Shermans’ case, the pledge of

allegiance statute does not contain the compulsion and

punishment found to be offensive to the First Amendment

in Barnette. Therefore, the pledge of allegiance statute

is not unconstitutional under this Court’s holding in Bar-

nette.

The questions presented for review do not reflect the

Seventh Circuit’s holding in this case. Therefore, the deci-

sion below does not present a conflict with any applicable

decision of this Court and the petition for a writ of cer-

tiorari should be denied.

II.

THE FACTS OF THIS CASE DO NOT RAISE THE QUES-

TION PRESENTED IN THE PETITION.

The Shermans argue that the pledge of allegiance statute

is unconstitutional, whether or not the statute mandates

recital by pupils, because the statute infringes upon the

pupils’ constitutional right to “freedom of conscience from

subtle coercive pressure.” (p. 15). However, the Shermans

complained below that the pledge of allegiance statute was

unconstitutional because of its mandatory religious nature,

not because of any particular sensibilities of young pupils.

R. 64. The Shermans have now shifted the focus of their

argument to a plea for the protection of young pupils from

social and peer pressure to participate in a classroom ex-

ercise unacceptable to the pupils’ political, religious or

philosophical beliefs. Thus, the question raised in the Sher-

mans’ petition of whether the pledge of allegiance is un-

constitutional, regardless of its mandatory nature, was not

-_ =

presented below. Neither the record nor the decision be-

low supports the grant of certiorari on the question pre-

sented by the petition.

The Shermans’ Free Exercise argument was limited

below to challenging the pledge of allegiance statute as

facially overbroad because it requires compulsory recita-

tion of the pledge of allegiance. Therefore, the Seventh

Circuit’s opinion analyzed the compulsory nature of the

statute. The Seventh Circuit did not just focus on the stat-

ute’s lack of a penalty or the evidence that Richard was

never compelled to recite the pledge. The Seventh Cir-

cuit also considered the social pressure and sense of ex-

clusion a pupil would experience in refusing to participate

in the group recitation of the pledge of allegiance. 980

F.2d at 443-5. The Seventh Circuit recognized, however,

that the protections afforded by the First Amendment’s

religion clauses do not extend to non-religious speech. 980

F.2d at 444. Thus, the curricula set by the public schools

to transmit majoritarian virtues and values may be of-

fensive to some pupils, but inclusion of such values as

patriotism is not violative of the First Amendment. 980

F.2d at 444-45.

Additionally, the facts of this case did not reveal that

Richard Sherman ever felt coerced or pressured to recite

the pledge of allegiance. To the contrary, the facts of this

case showed that Richard was never compelled to recite

the pledge of allegiance, to place his hand over his heart,

to stand or to leave the classroom while other pupils re-

cited the pledge. R. 62, affidavits of the School Defen-

dants attached. The absence of compulsion led the Seventh

Circuit to conclude that the pledge of allegiance statute,

on its face and as applied, does not violate the Establish-

ment Clause. 980 F.2d at 442-45.

=

The Shermans argue that this case presents the impor-

tant federal question, yet to be decided by this Court, of

the constitutionality of civic rituals which invoke a deity.

(p. 14). However, the issue presented by the Shermans’

complaint below was not so broad and, therefore, was not

decided by the Seventh Circuit. Regardless, the question

the Shermans present in their petition has been answered

in numerous cases wherein this Court has indicated its

implicit approval of the pledge of allegiance. See Engel

v. Vitale, 370 U.S. 421, 435 n.21 (1962); Abington School

strict v. Schempp, 374 U.S. 203, 303-4 (1963) (Brennan,

J., concurring); id., at 306-8 (Goldberg, J., joined by Har-

lan, J., concurring); Lynch v. Donnelly, 465 U.S. 668, 676

(1984); ad., at 693 (O’Connor, J., concurring); County of

Allegheny v. American Civil Liberties Union, 492 U.S.

573, 602-3 (1989).

The Seventh Circuit held, ‘‘so long as the school does

not compel pupils to espouse the content of the Pledge

as their own belief, it may carry on with patriotic exer-

cises.”” 980 F.2d at 445. Thus, the Seventh Circuit deci-

sion was based upon the Shermans’ claim that the pledge

of allegiance statute required mandatory recitation of the

pledge. The Seventh Circuit was not presented with the

question raised by the Shermans in their petition of whether

the pledge of allegiance statute is unconstitutional regard-

less of the provision of mandatory recitation.

This Court recognized in Lee that the price of conscience

or nonconformity may be social isolation or even hostility.

112 S. Ct. at 2661. Absent the pervasiveness of the reli-

gious activity involved in Lee, this Court indicated that

offense taken by the few will not invalidate state action

implicating religion. Jd. Such is the question presented

by the Shermans. It has already been answered by this

=o

Court. Therefore, no reason exists to grant the petition

for certiorari.

CONCLUSION

For the foregoing reasons, Roland W. Burris, Attorney

General of the State of Illinois, respectfully requests that

the petition for writ of certiorari be denied.

Respectfully submitted,

ROLAND W. BURRIS

Attorney General of Illinois

ROSALYN B. KAPLAN

Solicitor General

Counsel of Record

100 W. Randolph St., 12th Floor

Chicago, Illinois 60601

(312) 814-3312

Atiorneys for Respondent

Of Counsel: ROLAND W. BURRIS

SUSAN FREDERICK RHODES

Assistant Attorney Genera!

100 W. Randolph St., 12th Floor

Chicago, Illinois 60601

(312) 814-2587