Opposition Brief — Nelson v. Murphy

Supreme Court, U3.

FILED

No. 94-2053 | NOV 13 1995

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

WAYNE NELSON and ANTHONY MANOS, Individually

and on behalf of all others similarly situated,

Petitioners,

,

WILLIAM MURPHY, Acting Director, Department of

Mental Health and Developmental Disabilities;

ROALDA J. ALDERMAN, Facility Director, Elgin

Mental Health Center; and TERRY BRELJE, Associate

Director for Forensic Services, Department of Mental

Health and Developmental Disabilities,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JAMES E. RYAN

Attorney General of Illinois

BARBARA A. PREINER

Solicitor General of Illinois

RITA M. NOVAK

Counsel of Record

JAN E. HUGHES

Assistant Attorneys General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-5659

Attorneys for Respondents

Printed by Authority of the State of Illinois (P.O. 36454—60—11-9-95)

ye

oo

‘BEST AVAILABLE COPY

i

QUESTION PRESENTED

Should a federal court abstain under the doctrine

announced in Younger v. Harris, 401 U.S. 37 (1971) from

ordering state mental health officials to restore a pre-

viously-held grounds pass to an institutionalized person

found not guilty by reason of insanity or to pay damages

for the allegedly unconstitutional termination of the

grounds pass where the sentencing court has statutory

authority to oversee pass privileges and where proceed-

ings were pending in state criminal court to determine

the contours of the individual’s pass privileges?

il

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ................... i

TABLE OF AUTHORITIES ................. iv

SUMEREMIEDE sch evkvscdesatdaccesaaeessiees

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

Bee POD cccadncdeaseatseriaariais 2

Illinois Statutory Provisions Governing The

Criminal Court’s Supervision Of Persons

Found Not Guilty By Reason Of Insanity ... z

Criminal Court Proceedings Relating To The

Pass Privileges Of Nelson And Manos.... 4

District Court Proceedings ................ 8

Decision Of The Court Of Appeals ........ 9

REASONS FOR DENYING THE WRIT ..... 11

I.

THE SEVENTH CIRCUIT MAJORITY PANEL

CORRECTLY ABSTAINED FROM EXERCIS-

ING JURISDICTION BECAUSE THERE

WERE ONGOING PROCEEDINGS IN THE

STATE COURT IMPLICATING IMPORTANT

STATE INTERESTS AND BECAUSE THE

PROCEEDINGS AFFORDED THE PETI-

TIONERS AN ADEQUATE OPPORTUNITY TO

RAISE THEIR FEDERAL CONSTITUTIONAL

CHALLENGED cccccccccccnsceutuseaseness 11

A. The Pending State Proceedings Regarding

Pass Privileges Involve Important State

MUAGOUNED occ ccdvccasnesnequerestanys 12

ARRAN

ill

B. The Plaintiffs Had The Opportunity To

Present Their Constitutional Claims In

The Pending State Proceedings ....... 18

Il.

THE PETITIONERS’ PREDICTIONS THAT

THE SEVENTH CIRCUIT’S DECISION WILL

PRODUCE DIRE AND WIDE-RANGING CON-

SEQUENCES ARE UNREALISTIC ........ 22

ITT.

THE SEVENTH CIRCUIT MAJORITY’S DECI-

SION DID NOT APPLY, EXPAND, OR CON-

FLICT WITH HECK v. HUMPHREY BE-

CAUSE THE PETITIONERS WERE NOT

CHALLENGING THE FACT OR DURATION

OF THEIR CONFINEMENT ............... 24

CONCLUSION ........... Ren wakeaatis tee 69 25

iv

TABLE OF AUTHORITIES

Cases PAGE

Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980) .. 19, 20

Felder v. Casey, 487 U.S. 181 (1988) .......... 21

Gerstein v. Pugh, 420 U.S. 103 (1975) ......... 19

Hanna v. Toner, 630 F.2d 442 (6th Cir. 1980), cert.

denied, 450 U.S. 919 (1981) ................ 17

Harris v. Pernsley, 755 F.2d 338 (8rd Cir. 1985),

reh’g denied, 758 F.2d 83, cert. denied, 474 U.S.

A ee rr Pre Arie FS ot ee 15, 16

Heck v. Humphrey, ___. US. , 114 S. Ct.

SE ANE bon Wa dae kee ne cere eee reee tens 24, 25

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), reh’g

denied, 421 U.S. 971 (1975) ...... 12, 13, 19, 20, 21, 22

Juidice v. Vail, 480 U.S. 327 (1977) ........... 18, 19

LaShawn A. v. Kelly, 990 F.2d 1319 (D.C. Cir.

1993), cert. denied, 114 S. Ct. 691 (1994)... 19

Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423 (1982) .. 11, 12, 13

Moore v. Sims, 442 U.S. 415 (1979) ........... 18

New Orleans Public Service, Inc. v. Council of

New Orleans, 491 U.S. 350 (1989) .......... 13

O’Neill v. City of Philadelphia, 32 F.3d 785 (3rd

Cir. 1994), cert. denied, 115 S. Ct. 1355 (1995). 21

O’Shea v. Littleton, 414 U.S. 488 (1974) ....... 17

Patsy v. Board of Regents, 457 U.S. 496 (1982) .. 21

Pennzoil Company v. Texaco, Inc., 481 U.S. 1

SEE? bao oak aed cece eae beens 17, 18

Vv

People v. Roush, 101 Ill. 2d 355, 462 N.E.2d 468

COMED nis ak 6h chest arscebedeneaasr 14

People v. Valdez, 79 Ill. 2d 74, 402 N.E.2d 187

SOPEEE sb iwaciccedsekdee hae csr keene 14

Railroad Commission v. Pullman, 312 U.S. 496

CD kind cnedercwienscineisn cetera 20

Stefanelli v. Minard, 342 U.S. 117 (1951) ...... 17

Swain v. Pressley, 480 U.S. 372 (1977) ........ 18

Younger v. Harris, 401 U.S. 37 (1971)........ passim

Statutes

O06 TELA GEG CGO) 6.ccevcsawacccsseseyees 14

CoBif¢ § — oi. | Rewer rrr ere ers er 11

730 ILCS 5/5-2-4(b) (1994) ..........0646. 11, 14, 15, 23

No. 94-2053

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

WAYNE NELSON and ANTHONY MANOS, Individually

and on behalf of all others similarly situated,

Petitioners,

V.

WILLIAM MURPHY, Acting Director, Department of

Mental Health and Developmental Disabilities;

ROALDA J. ALDERMAN, Facility Director, Elgin

Menta! Health Center; and TERRY BRELJE, Associate

Director for Forensic Services, Department of Mental

Health and Developmental Disabilities,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JURISDICTION

The Court of Appeals for the Seventh Circuit entered

its judgment on January 4, 1995 (App. A-1). The petition-

ers filed a timely petition for rehearing with suggestion

for rehearing en banc, to which the respondents filed an

answer pursuant to court order. The panel majority

denied the petition for rehearing in a written addendum

2

to its decision on March 13, 1995, finding that no judge

in active service voted for rehearing en banc (App. A-14).

The Petition was filed in this Court on June 8, 1995. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATEMENT OF THE CASE

The Petitioners

In 1981, the Circuit Court of Cook County, Illinois,

Criminal Division (“the criminal court”), found Wayne

Nelson not guilty of murder by reason of insanity (R.

Doc. 16, exhibit A-4). In 1986, the criminal court found

Anthony Manos not guilty of attempted murder by

reason of insanity (R. Doc. 16, exhibit B-5). Both Nelson

and Manos were ordered committed to a facility of the

Illinois Department of Mental Health and Developmental

Disabilities (“the Department”) (R. Doc. 16, exhibits A-3

and B-4). On March 30, 1993, the Illinois Appellate

Court ordered the circuit court to enter an order permit-

ting the Elgin Mental Health Center to conditionally

release Nelson. People v. Nelson, 244 Ill. App. 3d 356,

614 N.E.2d 277 (1st Dist. 1993). By order of the criminal

court, Manos was released from Elgin in December of

1990 (Tr. 6-3-92, pp. 174-175, 196-201).

Illinois Statutory Provisions Governing The Criminal

Court’s Supervision of Persons Found Not Guilty By

Reason of Insanity

The Illinois Unified Code of Corrections provides that

after a finding of not guilty by reason of insanity, the

defendant shall be ordered to the Department for an

evaluation to determine whether he is subject to involun-

3

tary admission or in need of mental health services. 730

ILCS 5/5-2-4(a) (1994). The Department shall provide the

court with a report of its evaluation within thirty days of

the court’s order. Jd. If the defendant is found to be sub-

ject to involuntary admission or in need of mental health

services on an inpatient care basis, the court shall order

the defendant to the Department for placement in a

secure setting. Jd. Defendants placed in a secure setting

shall not be permitted outside the facility’s housing unit

unless escorted or accompanied by Department personnel

or with the prior approval of the court for unsupervised

on-grounds privileges. Id.

During the period of commitment, the defendant shall

not be permitted to be in the community in any manner,

including but not limited to off-grounds privileges or

unsupervised on-grounds privileges, except as provided

by a treatment plan filed with the court. 730 ILCS

5/5-2-4(b) (1994). The facility director shall file such

treatment plan with the court not more than thirty days

after admission and every sixty days thereafter so long

as the initial admission order remains in effect. Id.

Such plan shall include an evaluation of the defen-

dant’s progress and the extent to which he is benefitting

from treatment. Jd. Such plan may also include unsuper-

vised on-grounds privileges and supervised or unsuper-

vised off-grounds privileges, but only where such privi-

leges have been approved by specific court order. Jd. The

court’s order may include such conditions on the defen-

dant as the court may deem appropriate and necessary

to reasonably assure the defendant’s satisfactory prog-

ress in treatment and the safety of the defendant and

others. Id.

4

Criminal Court Proceedings Relating To The Pass Pri-

vileges of Nelson and Manos

In September 1988, Nelson petitioned the criminal

court for unsupervised grounds passes at Elgin (R. Doc.

16, exhibit A-2). The criminal court granted Nelson’s

motion, allowing him to attend certain on-grounds pro-

grams at various days and times (/d.). The criminal court

further ordered that Nelson’s attendance at the programs

be monitored, that no unsupervised on-grounds passes be

given if Nelson failed to report promptly to each program

or if any violent behavior was documented or if his med-

ical records did not show that he took his medication,

and that the criminal court be notified within one hour

of any nonreporting to a program or to Nelson’s unit

(Id.).

In December 1988, the criminal court ordered that

on-grounds unsupervised passes be allowed for Nelson

with the proviso that on-grounds activities personnel

report back to Nelson’s unit when he arrives for the acti-

vity, that off-grounds supervised passes be allowed two

times per month, and that Nelson not be allowed a home

visit until further order of the criminal court (R. Doc. 16,

exhibit A-1).

On January 22, 1988, the criminal court granted

Manos’s motion for an unsupervised on-grounds pass (R.

Doc. 16, exhibit B-3). In July 1989, Manos filed a motion

for unsupervised home visits and supervised off-grounds

passes (R. Doc. 16, exhibit B-2). The criminal court

ordered the Psychiatric Institute of Cook County to

examine Manos to determine whether such visits and

passes should be granted (J/d.). In September 1989, the

criminal court granted Manos’s motion for supervised

5

off-grounds passes and denied his motion for home visits

(R. Doc. 16, exhibit B-1).

In May 1990, two persons found not guilty by reason of

insanity escaped from Elgin (Tr. 6-3-92, p. 218). On May

30, 1990, William Murphy, then the Acting Director of

the Department, made the decision to suspend all passes

for those persons at Elgin who were found not guilty by

reason of insanity or who were found unfit to stand trial

(Tr. 6-3-92, pp. 211, 221). Also on May 30, 1990, Nancy

Foster, Director of Court Services at Elgin, telephoned

the Chief Judge of the Circuit Court of Cook County to

inform him of the suspension of passes (Tr. 6-4-92, pp.

452-457).

Roalda Alderman, facility director at Elgin, wrote to

Judge John Manion at the criminal court regarding

Nelson (R. Doc. 16, exhibit E). Alderman wrote a similar

letter to Judge Jack Welfeld regarding Manos (/d.). The

letters advised the court of the new procedure instituted

for requesting grounds passes and revised clinical guide-

lines for determining whether a forensic recipient is clin-

ically appropriate for pass privileges (/d.). The letters

also stated that “we understand a hearing will now be

scheduled for the purpose of resolving the grounds pass

issue.” (Jd.). The letters asked the judges to send writs

authorizing the Department to transport Nelson and

Manos to the court (/d.).

Accompanying the letters were memorandums regard-

ing the Department’s new procedure for requesting

grounds passes (R. Doc. 16, exhibit E, memorandums

from Terry Brelje, then the Deputy Director for Southern

Facility Operations and Special Programs, to circuit

court judges). The new procedure consists of review of

the treatment team’s recommendation that a pass be

6

granted by a psychiatrist or psychologist, by the facility

director, and by the director of forensic programs for the

Department (Jd.). The court then decides whether to

approve a pass (/d.).

The explanation of the new procedure stated that “[t}he

granting of a ground pass to a forensic recipient is a very

critical responsibility that must simultaneously balance

the needs to protect society and be responsible to the

individual’s clinical needs.” (R. Doc. 16, exhibit E, memo-

randums from Brelje to circuit court judges). A pass for

the simple purpose of being “on the campus” shall be

granted only under the most carefully considered condi-

tions and would be “relatively uncommon.” (/d.). An

on-grounds pass for the purpose of attending a program

activity as part of the treatment plan “might be more

commonly granted.” (/d.).

The circuit court judges also were provided with a

memorandum from Brelje notifying them of the adminis-

trative decision to temporarily restrict all forensic recip-

ients’ unsupervised grounds passes pending the construc-

tion of a security perimeter fence (R. Doc. 16, exhibit E,

memorandum from Brelje to circuit court judges). The

memorandum stated that the Department had made an

administrative decision to build a perimeter fence to

enclose the forensic buildings, the baseball field, and a

significant area of open space (Jd.). The judges also were

informed that the recipients who are clinically approved

for unsupervised grounds passes would have those passes

restored upon completion of the fence (/d.). The memo-

randum also stated that such individuals, while unsuper-

vised, will still be on grounds inside the perimeter fence

and that until completion of the perimeter fence, the De-

partment was of the opinion that the utilization of un-

7

supervised grounds passes by forensic recipients at Elgin

presents an unacceptable danger, both to the individual

recipients and the community at large (/d.).

On June 20, 1990, the treatment team reviewed

Nelson’s pass privileges and recommended that he be

able to use his passes when appropriate structured acti-

vities are available to him in the future (R. Doc. 18, ex-

hibit F, pp. 5-8). According to a letter from Nancy Foster,

Director of Court Services at Elgin, to Stuart Katz,

Nelson’s attorney at the time, Nelson instructed Katz not

to proceed with a court hearing in the matter of restora-

tion of his pass privileges and that Nelson was “comfort-

able with” the Department’s recommendation (R. Doc. 22,

exhibit D; see also R. Doc. 24, exhibit E, affidavit of

Nelson).

On June 15, 1990, the treatment team reviewed

Manos’s pass privileges and recommended that his pri-

vileges be reinstated with focus on unsupervised day

passes and home visits with discharge as a goal (R. Doc.

18, exhibit G, pp. 2-5). On July 18, 1990, Alderman in-

formed Brelje that she concurred with the review con-

ducted by Manos’s clinical team and non-treating profes-

sional staff that his pass privileges be reinstated in

accordance with the memorandum regarding the fence

enclosure of the Forensic Treatment Program (R. Doc. 18,

exhibit G).

Circuit court hearings were held between July 1990

and October 1991 on the restoration of passes (Tr.

6-4-92, pp. 459-462). For example, on October 4, 1990,

the court ordered Charles Bullock’s on-grounds pass tem-

porarily revoked for a period of ninety days (R. Doc. 22,

exhibit C). The court also ordered that Cameil Britton’s

on-grounds pass be temporarily suspended until further

8

order of the court (Jd.). The court denied the Depart-

ment’s motion to suspend Curtis Littrice’s on-grounds

pass and ordered Littrice to have a supervised off-

grounds pass and an unsupervised on-grounds pass,

which was subject to suspension if his behavior was not

appropriate (/d.). The record also shows that the Depart-

ment recommended that unsupervised pass privileges be

reinstated for Charles Johnson, but that the implementa-

tion of such privileges be held in abeyance until the com-

pletion of the perimeter fence (R. Doc. 24, exhibit F).

On August 6, 1990, the temporary suspension of un-

supervised off-grounds passes was lifted for those per-

sons who were clinically approved to exercise this pri-

vilege (R. Doc. 16, exhibit D). After the passes were tem-

porarily suspended, recipients of passes continued to

engage in clinically appropriate activities outside of the

Forensic Treatment Building, both on and off of the facil-

ity grounds (Jd.).

On March 11, 1991, upon completion of the fence, on-

grounds passes were restored (Tr. 6-4-92, p. 302). Foren-

sic patients at Elgin can now use their unsupervised on-

grounds passes for the purpose of moving from their

housing unit to an activity in another building (Tr.

6-4-92, p. 304).

District Court Proceedings

On July 11, 1990, Nelson and Manos filed a complaint

pursuant to 42 U.S.C. §§ 1983 and 1988 on behalf of

themselves and others similarly situated (R. Doc. 1).

They alleged that the defendants violated their due pro-

cess rights by failing to provide them with an individ-

ualized determination as to whether they continued to

9

meet the standard for a pass, by failing to provide them

with a hearing prior to the deprivation of their liberty,

and by deciding to suspend the passes without evalua-

tion by a qualified professional (R. Doc. 1, p. 6).

The plaintiffs sought an injunction directing the defen-

dants to restore their on-grounds passes and off-grounds

passes and to refrain from depriving them of their passes

in the future in the absence of a hearing that complies

with due process (R. Doc. 1, pp. 6, 8-9). They also sought

monetary damages in the amount of $50,000 for each

member of the class (R. Doc. 1, pp. 7-9).

In response to the plaintiffs’ motion for a preliminary

injunction for restoration of all passes that were sus-

pended in May 1990, the defendants argued, inter alia,

that the district court should abstain from exercising its

jurisdiction (R. Doc. 10; R. Doc. 16, pp. 9-14). On July 23,

1993, the magistrate recommended partial summary

judgment in favor of the defendants on the basis of qual-

ified immunity (R. Doc. 95). The plaintiffs filed objections

to the report and recommendation (R. Doc. 97).

On March 9, 1994, the district court issued an order

dismissing the complaint without prejudice based on its

decision to abstain from exercising jurisdiction under the

doctrine announced in Burford v. Sun Oil Co., 319 U.S.

315 (1943) (R. Docs. 98 and 99). The court denied on

grounds of mootness the plaintiffs’ motions for class

certification and for a preliminary injunction (/d.).

Decision of the Court of Appeals

The panel majority affirmed the district court’s decision

to abstain; however, it concluded that abstention under

the doctrine announced in Younger v. Harris, 401 U.S. 37

10

(1971) applied to this matter. 44 F.3d 497 (7th Cir.

1995). The majority noted that the staff at Elgin filed

new treatment plans with the court for both Nelson and

Manos every sixty days and that they could have opposed

the implementation of the new plans on constitutional

grounds in the state courts. 44 F.3d at 501. The majority

found that the petitioners filed their federal court action

rather than presenting their objections to the treatment

plans. Jd. Noting the petitioners’ apparent dissatisfaction

with the relief that state courts had given to other Elgin

inmates, the majority stated that such dissatisfaction did

not “justifly] carting one’s claim off to federal court.” 44

F.3d at 502.

The majority found that the petitioners were trying to

annul the result of treatment plans to which they made

no objection in the state courts and that the petitioners

did not claim that any of the Younger exceptions were

applicable to the case. Jd. The majority concluded that

the petitioners had and did not use a state forum in

which they could have presented the arguments pre-

sented in the federal court and that, under these circum-

stances, Younger was appropriate. Jd. On March 13,

1995, the court denied the petition for rehearing. 44 F.3d

at 504-505.

11

REASONS FOR DENYING THE WRIT

L

THE SEVENTH CIRCUIT MAJORITY PANEL COR-

RECTLY ABSTAINED FROM EXERCISING JURISDIC-

TION BECAUSE THERE WERE ONGOING PROCEED-

INGS IN THE STATE COURT IMPLICATING IMPOR-

TANT STATE INTERESTS AND BECAUSE THE PRO-

CEEDINGS AFFORDED THE PETITIONERS AN ADE-

QUATE OPPORTUNITY TO RAISE THEIR FEDERAL

CONSTITUTIONAL CHALLENGES.

This matter is perfectly appropriate for abstention

under the doctrine announced in Younger v. Harris, 401

U.S. 37 (1971). Based on principles of comity and federal-

ism, the Younger doctrine applies when there are ongo-

ing state judicial proceedings, where the state proceed-

ings implicate important state interests, and where the

state proceedings afford an adequate opportunity to raise

federal constitutional challenges. Middlesex County

Ethics Committee v. Garden State Bar Association, 457

U.S. 423, 431 (1982). This matter implicates the policies,

interests, and conditions supporting Younger abstention,

as the majority correctly concluded.

Under section 5-2-4 of the Unified Code of Corrections,

a circuit court judge maintains jurisdiction over a person

found not guilty by reason of insanity (NGRI) that he or

she commits to an inpatient mental health facility. 730

ILCS 5/5-2-4 (1994). By statute, the treatment plan,

which is filed with the circuit court every sixty days, in-

cludes an evaluation of the NGRI’s progress and may

also include unsupervised on-grounds privileges and

off-grounds privileges, but only where such privileges

have been approved by specific court order. 730 [LCS

5/5-2-4(b) (1994).

12

After the Petitioners’ passes were temporarily sus-

pended pending the completion of the fence at the Elgin

Mental Health Center, the Department scheduled hear-

ings before the criminal court judges for the explicit pur-

pose of resolving the pass issue. As the Seventh Circuit

majority found, “[n]lo one doubts that the state courts

had jurisdiction to consider the precise constitutional

claims that have been raised in this litigation.” Nelson,

44 F.3d at 501.

Where the statutory scheme grants the circuit court

judges ongoing jurisdiction over pass privileges, where

hearings were pending in the circuit court for the express

purpose of resolving the pass issue, and where the Peti-

tioners’ arguments could have been presented in the

state court proceedings, the majority correctly held that

abstention was appropriate under the doctrine an-

nounced in Younger. The Petitioners have failed to show

either that the majority decision requires review by the

Court or that there are any conflicts between the Sev-

enth Circuit and other circuits that need resolution by

the Court. Under these circumstances, the petition

should be denied.

A. The Pending State Proceedings Regarding Pass Pri-

vileges Involve Important State Interests.

In Younger, the Court held that principles of federal-

ism and comity require district courts to abstain from

granting relief whenever doing so would interfere sub-

stantially with ongoing state judicial criminal proceed-

ings. 401 U.S. at 45. The Younger doctrine has expanded

to include civil proceedings. See Middlesex County Ethics

Committee v. Garden State Bar Association, 457 U.S. 423

(1982); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975),

13

reh’g denied, 421 U.S. 971 (1975). Central to Younger is

the recognition that ours is a system in which the

“National Government, anxious though it may be to vin-

dicate and protect federal rights and federal interests,

always endeavors to do so in ways that will not unduly

interfere with the legitimate activities of the States.” 401

U.S. at 44. Younger reflects a strong policy against fed-

eral court interference in pending state judicial proceed-

ings absent extraordinary circumstances. Middlesex, 457

U.S. at 431.

As the majority correctly stated, “(t]he principle of

Younger is that a party to a state proceeding affecting

important governmental interests must resolve the dis-

pute in the state’s preferred tribunal.” Nelson, 44 F.3d at

501. The inquiry focuses on the importance of the generic

proceedings to the State, not its interest in the outcome

of a particular case. New Orleans Public Service, Inc. v.

Council of New Orleans, 491 U.S. 350, 365 (1989). States

have a substantial interest in enforcing criminal laws

that bear a close relationship to criminal proceedings.

Huffman, 420 U.S. at 604.

The majority panel noted that the “cases pending in

the courts of Illinois are continuations of the original

criminal prosecutions, and preserving a state’s right to

litigate criminal cases in its own courts is the core of the

Younger doctrine.” Nelson, 44 F.3d at 501. Contrary to

the Petitioners’ illogical contention, the majority’s obser-

vation that the state proceedings are continuations of the

original criminal prosecutions does not mean that the

confinement of insanity acquitees is part of a scheme of

punishment. (See Petition at 29-32). The majority’s con-

clusion correctly recognized the fact that those persons

found not guilty by reason of insanity are subject to the

14

criminal laws of Illinois. This point was made clear in

People v. Roush, 101 Ill. 2d 355, 462 N.E.2d 468, 472

(1984), where the Illinois Supreme Court stated that “a

circuit court judge maintains jurisdiction over an NGRI

patient he or she commits to a mental institution.” See

also People v. Valdez, 79 Ill. 2d 74, 402 N.E.2d 187, 193

(1980) (provisions in the Unified Code outlining the cir-

cuit court’s jurisdiction enable the circuit court to moni-

tor the progress of the treatment being rendered by the

Department to a person found not guilty by reason of

insanity).

State judicial oversight of the treatment and confine-

ment of NGRIs serves important governmental interests,

and the Petitioners do not dispute this. Provisions of the

Unified Code of Corrections, together with provisions of

the Mental Health and Developmental Disabilities Code,

make it clear that the purpose of the circuit court’s on-

going jurisdiction is to help ensure both an NGRI’s satis-

factory progress in treatment and the safety of an NGRI

and others. See 405 ILCS 5/3-814 (1994); 730 ILCS

5/5-2-4(b) (1994).

While an NGRI’s treatment includes various compo-

nents, the Illinois legislature has found that pass privi-

leges are of such importance that it explicitly gave the

circuit courts of Illinois ongoing jurisdiction over this

aspect of treatment and confinement. Section 5-2-4 of the

Unified Code states that during the period of confine-

ment, “the defendant shall not be permitted to be in the

community in any manner, including but not limited to

off-ground privileges, with or without escort by personnel

of the Department of Mental Health and Developmental

Disabilities, unsupervised on-grounds privileges, dis-

charge or conditional or temporary release except by a

15

plan provided in this Section.” 730 ILCS 5/5-2-4(b)

(1994). The facility director shall file with the court a

treatment plan, which may include unsupervised

on-grounds privileges and off-grounds privileges, but only

where such privileges have been approved by specific

court order. Id.

The Petitioners argue that Younger does not apply

because they were not defendants in any pending state

court proceeding. (Petition at 18-23). They ignore the

facts of this case showing not only that the sentencing

judge has ongoing jurisdiction over their pass privileges,

but that the Department had scheduled hearings to re-

solve the pass issue that arose after passes were tempo-

rarily suspended.

The pending state court hearings were held in fur-

therance of enforcement of the Unified Code, which man-

dates that the facility director file treatment plans with

the criminal court and that pass privileges can only be

given by order of the court. In this regard, this matter is

readily distinguishable from Harris v. Pernsley, 755 F.2d

338 (3rd Cir. 1985), reh’g denied, 758 F.2d 83, cert.

denied, 474 U.S. 965 (1985), where no state criminal pro-

ceedings were pending. (See Petition at 18-19). The Har-

ris court found that, although a civil case initiated by

state prisoners was pending in the state court of common

pleas involving issues similar to the federal suit, absten-

tion was not appropriate because the government offi-

cials were not plaintiffs or prosecutors seeking vindica-

tion of state law enforcement policies in the state court

action. Thus, because the state court action was not a

criminal proceeding and did not involve state law en-

forcement policies, the Harris court concluded that the

government’s interest in the state action was not strong

16

enough to merit Younger abstention. 755 F.2d at 344.

Here, on the other hand, the federal defendants’ actions

in the pending state court proceedings involved the

state’s interest in its law enforcement policies and fur-

thered enforcement of the Unified Code of corrections.

The Petitioners’ assertion that state proceedings were

not pending is simply untrue. In addition to the statuto-

ry requirement that the Department file treatment plans

with the circuit court sentencing judge every sixty days

and the statutory mandate that only the circuit court can

order pass privileges, the facts of this record show that

hearings were indeed held beginning in July 1990 on

pass privileges after passes were temporarily suspended

in May 1990 due to the escape of two NGRIs from Elgin.

When the decision to suspend passes was made, Depart-

ment personnel immediately telephoned the Chief Judge

of the Circuit Court of Cook County to inform him of the

decision (Tr. 6-4-92, pp. 452-457). Thereafter, letters

were written to criminal court judges advising them of

the new procedures and guidelines applicable to the

issuance of passes (R. Doc. 16, exhibit E). The letters also

stated that “we understand a hearing will now be sched-

uled for the purpose of resolving the grounds pass issue.”

(Id.). The letters asked the judges to send writs authoriz-

ing the Department to transport Nelson and Manos to

the court (/d.).

Federal court exercise of jurisdiction in this case would

have constituted substantial interference with the pend-

ing state court proceedings. The consideration of Younger

cannot be separated from the realities of this case. Al-

though the Petitioners seem to have forgotten the relief

they sought from the federal court, the facts show that

they asked the federal court to order the defendants to

17

restore the pass privileges they had prior to the tempo-

rary suspension of passes. Had the district court granted

the injunction, this order would have substantially inter-

fered with the circuit court’s ongoing statutory duty and

authority to determine whether passes should be granted

and to determine the perimeters of the passes. In this re-

gard, this matter is clearly distinguishable from Hanna

v. Toner, 630 F.2d 442, 446 (6th Cir. 1980), cert. denied,

450 U.S. 919 (1981), where the court rejected Younger

without analysis, stating merely that the case “repre-

sents no interference or intervention in state judicial pro-

cesses—criminal or otherwise.” (See Petition at 23-24).

This Court has stated that the object of abstention is

to “sustain {t]he special delicacy of the adjustment to be

preserved between federal equitable power and State

administration of its own laws.’ ” O’Shea v. Littleton, 414

U.S. 488, 500 (1974) (quoting Stefanelli v. Minard, 342

U.S. 117, 120 (1951)). So long as challenges relate to

pending state proceedings, proper respect for the ability

of state courts to resclve federal questions presented in

state court litigation mandates that the federal court

stay its hand. Pennzoil Company v. Texaco, Inc. , 481 U.S.

1, 14 (1987). Where pass privileges of NGRIs is a subject

affecting important governmental interests and where

the circuit courts of Illinois statutorily maintain ongoing

jurisdiction over this aspect of treatment and confine-

ment, the majority correctly applied the Younger doctrine

under the facts of this case.

18

B. The Plaintiffs Had The Opportunity To Present

Their Constitutional Claims In The Pending State

Proceedings.

The facts of record make clear that the plaintiffs could

have raised their constitutional claims regarding the sus-

pension of old passes and the restrictions on new passes

at the hearings held before the circuit court judges. “No

more is required to invoke Younger abstention.” Juidice

uv. Vail, 430 U.S. 327 (1977).

There is a presumption that state courts are as capable

as federal courts of guaranteeing federal rights. See

Swain v. Pressley, 430 U.S. 372, 383 (1977) (“[E]lected

judges of our state courts are fully competent to decide

federal constitutional issues ... .”). Thus, the Younger

abstention doctrine does not become inapplicable simply

because the plaintiff alleges federal constitutional vio-

lations. Moore v. Sims, 442 U.S. 415, 427 n.10 (1979).

Plaintiffs “need be accorded only an opportunity to fairly

pursue their constitutional claims in the ongoing state

proceedings.” Juidice, 430 U.S. at 337.

A federal plaintiff cannot escape Younger’s reach mere-

ly by abandoning the pending state action and by failing

to assert its state remedies in a timely manner. Pennzoil,

481 U.S. at 18 n.16. The burden of showing that there is

no opportunity to raise constitutional claims in the state

court rests with the federal plaintiff. Moore, 442 U.S. at

422. The Petitioners have never claimed that they could

not have raised their constitutional claims in the state

proceedings.

The Petitioners simply decided to bypass the opportu-

nity that state courts allowed them to litigate these

issues and chose instead to bring their claims into fed-

eral court. As the majority panel correctly noted, “the

19

Supreme Court long ago held that parties may not avoid

Younger by withholding defenses from the state proceed-

ing and commencing the federal suit as soon as the state

case ends.” Nelson, 44 F.3d at 502 (citing Huffman, 420

U.S. at 607-611). The failure of the Petitioners to avail

themselves of the opportunity to pursue their claims in

the state proceedings does not mean that those proceed-

ings were inadequate. Juidice, 430 U.S. at 337.

Contrary to the Petitioners’ assertion, the majority's

decision does not conflict with cases such as Gerstein, v.

Pugh, 420 U.S. 103 (1975) or LaShawn A. v. Kelly, 990

F.2d 1319 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 691

(1994), where the issues involved could not have been

raised in the state proceedings and Younger then did not

apply. (See Petition at 25-27, 32-35). In Gerstein, the

Court found that the legality of the pretrial detention

was an issue that could not be raised in defense of the

criminal prosecution. 420 U.S. at 108 n.9. In LaShawn

A., the court found that family court proceedings did not

present an appropriate forum for a multi-faceted class

action challenge to the entire state foster care system.

990 F.2d at 1323. Here, on the other hand, the pending

state proceedings, held for the purpose of determining

the issue of pass privileges, gave the Petitioners an ade-

quate, even a perfect, opportunity to raise the constitu-

tional challenges that they raised in federal court.

The Petitioners’ contention that the majority's decision

is in conflict with Coley v. Clinton, 635 F.2d 1364 (8th

Cir. 1980) is erroneous. (Petition at 34-35). In Coley, two

former inmates of an Arkansas state hospital sought to

represent a class of criminal defendants committed to the

state hospital when found incompetent to stand trial or

when acquitted by reason of mental disease. They alleged

eee ar

20

constitutional violations relating to the procedures for

commitment to and release from the state hospital and

to the automatic confinement in a maximum security

building.

The Petitioners fail to mention that the Coley court

determined that abstention was compelled by Younger as

to state judicial action involved in the commitment and

release of criminal defendants. 635 F.2d at 1371. The

court also found that abstention was proper under the

doctrine announced in Railroad Commission v. Pullman,

312 U.S. 496 (1941) as to the constitutional challenges to

the administrative procedures for commitment and re-

lease. The court rejected the application of Younger for

those claims relating to administrative procedures be-

cause there were no ongoing criminal court proceedings

with which a challenge to state administrative inaction

would have interfered. Here, on the other hand, there

were ongoing proceedings in the Illinois criminal court

governed by the Unified Code. The Petitioners fail to

accurately present the Coley decision, and their argu-

ment that the majority's decision conflicts with Coley is

simply untrue.

The majority noted that both Nelson and Manos have

been released from confinement, but found that this fact

did not mean that abstention was not applicable. Nelson,

44 F.3d at 502. The majority was correct. In Huffman v.

Pursue, Ltd., 420 U.S. 592 (1975), reh’g denied, 421 U.S.

971 (1975), the Court found that Younger applied where

a plaintiff attempts to annul the results of a state trial.

The Court held that “Younger standards must be met to

justify federal intervention in a state judicial proceeding

as to which a losing litigant has not exhausted his state

appellate remedies[,}” regardless of whether those rem-

21

edies continue to be available. Huffman, 420 U.S. at 609

and n.22; see also O’Neill v. City of Philadelphia, 32 F.3d

785 (3rd Cir. 1994), cert. denied, 115 S. Ct. 1355 (1995)

(a state proceeding is considered “pending” and Younger

abstention proper where the adjudicatory process has

become final as a result of the federal claimant’s failure

to pursue state court judicial review of an unfavorable

state administrative determination).

The Petitioners distort the majority's decision by

arguing that the court improperly imposed an exhaustion

of remedies requirement on their case. (Petition at

27-28). The Petitioners appear to confuse exhaustion of

state appellate remedies with the well-settled rule that

a party bringing a section 1983 action need not exhaust

state remedies. The majority noted the distinction

between the concepts that the Petitioners confuse when

it stated that an inmate participating in state litigation

must make his stand there rather than attempt the

equivalent of federal-defense removal by filing an inde-

pendent section 1983 action, but “[t]his is not at all to

create an exhaustion requirement for conditions of con-

finement litigation under section 1983.” Nelson, 44 F.3d

at 502. There is no such requirement under Felder v.

Casey, 487 U.S. 131 (1988) and Patsy v. Board of Re-

gents, 457 U.S. 496 (1982). Id.

The principle expressed by the majority is consistent

with this Court’s views that a state’s judicial system

would not be accorded the opportunity to resolve federal

issues arising in its courts if a federal district court were

permitted to substitute itself for the state’s appellate

courts. Huffman, 420 U.S. at 609. Thus, the Huffman

Court concluded that the Younger standards may not be

avoided “by simply failing to comply with the procedures

22

for perfecting [an] appeall,]” and, in this regard, it was

not essential to ascertain whether appellate remedies

continued to be available. Huffman, 420 U.S. at 609 n.22.

The majority noted the principle expressed in Huffman

when it stated that “parties may not avoid Younger by

withholding defenses from the state proceeding and com-

mencing the federal suit as soon as the state case ends.”

Nelson, 44 F.3d at 502. Contrary to the Petitioners’

assertion, the majority’ decision does not conflict with

decisions of this Court.

The Petitioners have failed to ever argue that they did

not have the opportunity to raise their constitutional

challenges in the state court proceedings. Similariy, their

petition fails to show that the majority panel erred in

concluding that the opportunity existed for them to raise

their claims. Under these circumstances and where the

Petitioners have failed to show any conflict with other

decisions, review of the majority's decision is not war-

ranted.

Il.

THE PETITIONERS’ PREDICTIONS THAT THE SEV-

ENTH CIRCUIT’S DECISION WILL PRODUCE DIRE

AND WIDE-RANGING CONSEQUENCES ARE UNREAL-

ISTIC.

The Petitioners present their case to this Court as one

involving generically “conditions of confinement” in order

to bolster their assertion that this case will foreclose a

federal forum to “thousands” of institutionalized persons

across this country. (Petition at 35-42). They overstate

the scope of the decision, and their presentation ignores

the narrow factual context within which this case arose.

23

Inherent in the Seventh Circuit’s decision is the recog-

nition that a pass privilege is the only aspect of confine-

ment that the Illinois legislature explicitly mentioned in

the Unified Code as being subject to the criminal court’s

ongoing jurisdiction. The determination of whether an

NGRI is given a pass and what restrictions will be placed

on the pass is such a significant state interest that the

Unified Code expressly provides that the defendant shall

not be permitted to be in the community in any manner,

including but not limited to off-grounds privileges or

unsupervised on-grounds privileges, except as provided

by a treatment plan filed with the court. 730 ILCS

5/5-2-4(b) (1994).

Not only are pass privileges the subject of treatment

plans filed with the criminal court every sixty days, but

here, in fact, hearings were pending for the very reason

of resolving the pass privilege issue, the precise issue

that the Petitioners brought in federal court. While other

states may also provide for judicial supervision of certain

institutionalized persons, that does not mean that the

decision of the Seventh Circuit will effectively close the

federal courthouse door to all persons confined to institu-

tions in the United States, as the Petitioners suggest.

The majority’s decision is consistent with the principles

announced in Younger, and it does not create a bar to

federal litigation to all persons who are subject to the

criminal or civil commitment laws of the states. The Peti-

tioners’ attempt to secure review by predicting unrealis-

tic and drastic results must be rejected.

24

Il.

THE SEVENTH CIRCUIT MAJORITY’S DECISION DID

NOT APPLY, EXPAND, OR CONFLICT WITH HECK v.

HUMPHREY BECAUSE THE PETITIONERS WERE NOT

CHALLENGING THE FACT OR DURATION OF THEIR

CONFINEMENT.

The Petitioners argue both that the Seventh Circuit

majority improperly extended the holding of Heck v.

Humphrey, ___ U.S. ___, 114 S. Ct. 2364 (1994) and that

the majority’s dismissal of the claim for damages con-

flicts with Heck. (Petition at 42-55). Neither of the incon-

sistent contentions made by the Petitioners is correct. In

Heck, this Court held that in order to recover damages

for an allegedly unconstitutional conviction or imprison-

ment or for other harm caused by actions whose unlaw-

fulness would render a conviction or sentence invalid, a

section 1983 plaintiff must show that the conviction or

sentence has been reversed. 114 S. Ct. at 2372. When a

state prisoner seeks damages in a section 1983 suit, the

district court must consider whether a judgment in favor

of the plaintiff would necessarily imply the invalidity of

his conviction and, if it would, must dismiss the com-

plaint unless the plaintiff can show that the conviction

has been invalidated. Id.

The Petitioners misread the majority’s decision, which

mentioned the holding of Heck and then noted simply

that Younger supports a “complementary” holding for

conditions of confinement that are actively supervised by

state courts in that an inmate already participating in

state litigation must make his stand there rather than

attempt the equivalent of federal-defense removal by

filing an independent §1983 suit. Nelson, 44 F.3d at 502.

The Petitioners contend that they are not challenging the

25

fact or duration of their confinement. (Petition at 51-52).

No one, including the majority panel, disputes that.

Moreover, nothing in the majority’s discussion improper-

ly applies, expands, or conflicts with Heck, contrary to

the Petitioners’ suggestion. The Petition should be de-

nied.

CONCLUSION

For all of the foregoing reasons, the Court should deny

the Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit.

Respectfully submitted,

JAMES E. RYAN

Attorney General of Illinois

BARBARA A. PREINER

Solicitor General of Illinois

RITA M. NOVAK

Counsel of Record

JAN E. HUGHES

Assistant Attorneys General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-5659

Attorneys for Respondents