Opposition Brief — Church of Scientology International v. Cult Awareness Network

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No. 97-1006

_ HIV. |

In the

Supreme Court of the Gnited States

OCTOBER TERM, 1997

CHURCH OF SCIENTOLOGY INTERNATIONAL. BOWLES &

MOXON, AND CHURCH OF SCIENTOLOGY OF ILLINOIS.

Petitioners.

V.

CULT AWARENESS NETWORK, Respondent.

On Petition For A Writ of Certiorari

To The Supreme Court of Illinois

RESPONDENT'S BRIEF IN OPPOSITION

ROBERT M. Dow, JR.

Counsel of Record

JAMES C. SCHROEDER

CRAIG A. WOODS

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Counsel for Respondent

Sortiate elie Ee

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction under 28 U.S.C.

§ 1257(a) to review a non-final decision of the Supreme

Court of Illinois in which that court reversed the dismissal of

the complaint, declined to consider the only federal issue in

the case, and remanded the case for further proceedings in

the state trial court.

2. Whether this Court should avoid deciding the federal

constitutional question presented by petitioners, when that

question has not been finally decided by the Supreme Court

of Illinois and may become moot depending on the outcome

of the case on remand in the state courts.

3. Whether instigating and maintaining over 20

meritless civil suits, with malice and without probable cause,

for the purpose of harassing and eliminating a competitor in

the marketplace of ideas — as set forth in the allegations of

the complaint (which must be accepted as true at this stage

of the case) — constitutes protected activity under the First

Amendment.

li

RULE 29.6 STATEMENT

Respondent Cult Awareness Network has no parent

companies or subsidiaries to list pursuant to Supreme Court

Rule 29.6.

ili

TABLE OF CONTENTS

Page

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Pees AP SEARED 2 ww te ee il

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a a oy Ss a kwh Ss hie Wlele WR 1

Sg ER ee 1

Ee ee a 1

ee WO i ce ce eee 2

B. The Underlying Lawsuits.............. 4

C. The State Court Proceedings ........... 6

1. Circuit Court of Cook County ........ 6

2. Appellate Court of Illinois .......... 6

3. Supreme Court of Illinois........... 7

REASONS FOR DENYING THE PETITION ...... 8

I. THIS COURT LACKS JURISDICTION OVER

THE NON-FINAL DECISION OF THE

SUPREME COURT OF ILLINOIS ......... 10

I

iV

TABLE OF CONTENTS—Continued

A. 28 U.S.C. § 1257(a) Limits This Court’s

Jurisdiction To Review State Court

Decisions To Final Judgments Of A State’s

PS See bee eee eee yg

Any Effort To Invoke An Exception To

The Finality Requirement Would Be Futile

Because The Supreme Court Of Illinois Did

Not Finally Determine The Federal Issue

Presented In The Petition ...........

Even If The Supreme Court Of Illinois Had

Finally Decided The Federal Issue, None

Of The Cox Exceptions To The Finality

Rule Womld Apply .. 1... ccc cw sees

Il. THE DOCTRINE OF AVOIDING UN-

Il.

CONCLUSION

NECESSARY OR PREMATURE ADJUDICA-

TION OF CONSTITUTIONAL QUESTIONS

ALSO SUPPORTS DENIAL OF THE

PETITION

THE FIRST AMENDMENT DOES NOT

PROTECT THE ACTIVITIES ALLEGEDLY

UNDERTAKEN BY THE DEFENDANTS IN

ANY EVENT

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Page

Vv

TABLE OF AUTHORITIES

Cases: Page

Allied Tube & Conduit Corp. v. Indian Head, Inc. , 486

WC 6555s Baek one We 23

Ashwander v. Tennessee Valley Authority, 297 U.S. 288

Co Pe ee ee eee 9, 18

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731

Se as 5 Me nea ta das i eco, 20, 22, 3

Bryson v. News America Publications, Inc., 174 Ill. 2d

18, Gia MBO 1207 CISD) 2. we ew ee ee 22

California v. Stewart, 384 U.S. 436 (1966) ....... 16

California Motor Transport Co. v. Trucking Unlimited,

404 U.S. 508 (1972) .........22.. 20, 23, 24

Church of Scientology of California v. Wollersheim, 49

Cal. Rptr. 2d 620 (App. 1996) ............. 3

City of Tarrant v. Jefferson, 682 So. 2d 29

SUR bgt ete es ba NE keg ec 12

Clark v. Kansas City, 172 U.S. 334 (1899) ....... 12

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

I Sia tar ar aca Ca ah ot ea 13-17

Flynt v. Ohio, 451 U.S. 619 (1981) ........... 13

Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d

fe A ree 21

vi

TABLE OF AUTHORITIES—Continued

Page

Hart v. Cult Awareness Network, 16 Cal. Rptr. 2d 705

I, a a Sani Fe wo Be aes 3

Hathorn v. Lovorn, 457 U.S. 255 (1982) ........ 12

In re Primus, 436 U.S. 412 (1978) ............ 21

Jefferson v. City of Tarrant, 118 S. Ct. 481

ee ok eg ao eae a> ahaa 8-14

Lyng v. Northwest Indian Cemetery Protective Ass’n.,

ae wm Geer Ce cde eae eee es 18

Market Street R. Co. v. Railroad Comm’n, 324 U.S. 548

Rr ay Glo oe Wa ee ee og ee 11

McComb v. Commissioners, 91 U.S. 1 (1875) ..... 12

Meagher v. Minnesota Thresher Mfg. Co., 145 U.S. 608

Ey ss week ee od AG ae eo 12

Mills v. Alabama, 384 U.S. 214 (1966) ......... 15

Minnick v. California Dept. of Corrections, 452 U.S.

I reas 5 dog ce ae bt Ay i ae ae oe 18

Missouri & K. I. R. Co. v. Olathe, 222 U.S. 185

SER Oe Xa ore aoe Sere te enna ses, 6's 11

New York City Transit Authority v. Beazer, 440 U.S. 568

Us 5-6 ee eee Saar ck 18

Vii

TABLE OF AUTHORITIES—Continued

Page

North Dakota State Board of Pharmacy v. Snyder’s Drug

Stores, Inc., 414 U.S. 156 (1973) .......... 11

O'Dell v. Espinoza, 456 U.S. 430 (1982) ........ 12

Otter Tail Power Co. v. United States, 410 U.S. 366

FE aE NESTE Sagan JE, hs ean a a 23

Pope v. Atlantic Coast Line R. Co., 345 U.S. 379

ERs, Se deG nF ares ae a re 11, 5

Professional Real Estate Investors, Inc. v. Columbia

Pictures Industries, Inc., 508 U.S. 49

Fae ee ee 23, 24

Radio Station WOW, Inc. v. Johnson. 326 U.S. 120

2 IESE ty ern eae eet Ree eee 11

Religious Technology Center v. Scott, 1996 WL 171443

Spee samt. Ou. ES, We ko ee rk oe ek ee. 4

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62

SRE te ae REA Oe ag 18

SN Siti 3 ies poe ae gee Ss ew <2 18

USS-Posco Indus. v. Contra Costa County Building &

Constr. Trades Council, 31 F.3d 800

SN MN 6 kos bs eb Ck Gora 24

Vili

TABLE OF AUTHORITIES—Continued

Page

Wright v. DeArmond, 977 F.2d 339

en 8 sc) cs CS ee re ee 20

Statutes and Rules:

yy Bk La gE ee 1,9, 11, 13

Miscellaneous:

Constitution of the United States, First

Rs oa BOTS ea ee passim

J. P. Kumar, “Fair Game”: Leveling the Playing Field

in Scientology Litigation, 16 REV. LITIG. 747, 749-

UE Co oo Le es we ee ee 4

Restatement (Second) of Torts § 674 .......... 7, 3

Robert L. Stern, Eugene Gressman, Stephen M. Shapiro

& Kenneth S. Geller, Supreme Court Practice 106

Pe NE eee Ore ak Oe ee iz, 13

BRIEF FOR CULT AWARENESS NETWORK

IN OPPOSITION

OPINIONS BELOW

The opinion of the Supreme Court of Illinois (Pet. App.

| la-18a) is reported at 177 Ill. 2d 267, 685 N.E.2d 1347

(1997). The opinion of the Appellate Court of Illinois (Pet.

App. 19a-34a) is reported at 279 Ill. App. 3d 66, 664

N.E.2d 217 (1st Dist. 1996). The orders of the Circuit

Court of Cook County (Pet. App. 35a-42a) are unreported.

JURISDICTION

The opinion of the Supreme Court of Illinois was issued

on September 18, 1997. The petition for writ of certiorari

was filed on December 16, 1997. Petitioners purport to

invoke the jurisdiction of this Court under 28 U.S.C. §

1257(a), but as explained in detail below, this Court lacks

jurisdiction to review the interlocutory order of the Supreme

Court of Illinois — that court reversed the dismissal of

respondent’s complaint, declined to address the merits of

petitioners’ First Amendment defense because it was

premature, and remanded for further proceedings in the state

trial court. Pet. App. 18a.

STATEMENT

This is an action governed by Illinois law alleging a

conspiracy to maliciously prosecute more than 20 meritless

civil suits, against a small, not-for-profit organization and its

affiliates, in several jurisdictions across the country. As the

Supreme Court of Illinois noted, because defendants

“challenged plaintiff's complaint by way of a * * * motion

to dismiss,” Pet. App. 17a, the allegations of the complaint

(R. C74-106, R. C212-231) must be taken as true at this

stage of the proceedings. Pet. App. la.

iii ill

A. Nature of the Case

According to the complaint, defendants — Church of

Scientology International, Church of Scientology Illinois, and

Bowles & Moxon, a Los Angeles law firm — conspired with

each other, with certain individual Scientology members, and

with others to commence and prosecute a series of unfounded

lawsuits against the Cult Awareness Network (“CAN”), a

small, not-for-profit organization dedicated to educating the

public as to religious rights, freedoms, and responsibilities,

and its affiliates for the purpose of achieving a number of

illicit ends unrelated to the merits of the defendants’

purported claims. R. C213, R. C227-228. Specifically, by

maintaining at least 21 baseless actions against CAN and its

affiliates, defendants sought to impede CAN’s efforts to

provide public education regarding cult organizations, to

drive CAN into bankruptcy, and to squelch CAN’s anti-cult

message. R. C213, C229, C230. As a result of these

lawsuits, CAN’s members, officers, and employees have

been forced to devote an inordinate amount of their time and

to expend an exorbitant percentage of CAN’s limited

resources defending against these meritless claims. Jbid.

To generate this flood of unfounded litigation,

defendants suggested, instigated, encouraged, assisted, and

financed lawsuits brought in the names of certain nominal

“plaintiffs” — individual members of the Church of

Scientology. R. C228. Defendants also provided office

space and boilerplate pleadings to facilitate the filing of these

vexatious lawsuits, most of which alleged the same factually

and/or legally deficient civil rights claims, and all of which

were resolved in CAN’s favor. R. C228-229.

As evidenced in the findings of a California court in one

of the underlying actions, these lawsuits appear to have their

genesis in a February 1991 edict of the Church of

Scientology “identif[ying] CAN as a suppressive group,

3

which Church literature defines as ‘one that actively seeks to

suppress or damage Scientology or a Scientologist by

Suppressive Acts.’” Hart v. Cult Awareness Network, 16

Cai. Rptr. 2d 705, 707 (App. 1993). The Hart Court further

noted that “[a]ccording to Church literature, a suppressive

person or group becomes ‘fair game,’ and a person or group

which is fair game “May be deprived of property or injured

by any means by any Scientologist without any discipline of

the Scientologist. May be tricked, sued or lied to or

destroyed.’” Jbid.

And, indeed, between 1992 and 1994 a relentless

barrage of lawsuits, all of which are alleged to have been

meritless, was brought against CAN at the behest of the

defendants in the names of various individual Scientologists.

y CAN has not been the sole target of the Scientology

litigation factory. In 1996, for example, a California court

found that “the history of the underlying litigation reveals

that the instant action is consistent with a pattern of conduct

by the Church to employ every means, regardless of merit,

to frustrate or undermine Wollersheim’s petition activity.”

Church of Scientology of California v. Wollersheim, 49 Cal.

Rptr. 2d 620, 632 (App. 1996). As the Wollersheim Court

noted, among other tactics employed during the fifteen years

of litigation, Scientology asked the Ninth Circuit “to disqual-

ify the entire United States District Court for the Central

District of California. In an unprecedented ruling the Ninth

Circuit struck the motion from its records.” Jd. at 624. The

Court further described the Church as having “continuously

and unsuccessfully use[d] the litigation process to bludgeon

the opponent into submission.” Jd. at 632. And, in an even

more recent case in which petitioner Church of Scientology

International was a co-plaintiff, the Ninth Circuit affirmed an

(continued...)

4

This is not, therefore, an instance of a single (even meritless)

lawsuit begetting a retaliatory lawsuit. Rather, defendants

have attempted to smother a small competitor in the

marketplac* of ideas under the weight of more than a score

of frivolous lawsuits.

B. The Underlying Lawsuits

As alleged in the complaint, defendants have instigated

the filing of at least 21 actions against CAN and its affiliates

in state and federal courts in seven jurisdictions across the

United States, including Illinois. R. C213-227. The vast

majority of these lawsuits claimed that CAN had violated

federal or state civil rights laws by refusing to permit

individual members of the Church of Scientology to join

CAN or attend CAN meetings, or refusing to recognize

Scientology-established organizations as CAN affiliates. R.

C214-217, C218-227. Two additional suits alleged

(...continued)

award of almost $2.9 million in attorneys’ fees against

plaintiffs, quoting the special master’s finding that plaintiffs’

complaints had been brought “in bad faith to harass the

individual defendants and destroy [a church comprising a

splinter group of Scientology] through massive over-litigation

and other highly questionable litigation tactics.” Religious

Technology Center v. Scott, 1996 WL 171443, at *5 (9th

Cir. Apr. 11, 1996). See also J. P. Kumar, “Fair Game”:

Leveling the Playing Field in Scientology Litigation, 16 REV.

LITIG. 747, 749-50 (1997) (noting that “the most obvious

feature of the Church of Scientology’s use of the legal system

is the sheer volume of litigation initiated by the Church in

both offensive and defensive situations,” and that the

“principal goals” of this tactic “are to delay the final

resolution of the matter for as long as possible, thereby

depleting the resources and stamina of an opponent”).

5

intentional torts under state law. One suit claimed that CAN

fraudulently induced a Scientologist into performing

volunteer activities. R. C213-214. The other lawsuit

purported to state a cause of action for intentional infliction

of emotional distress and fraudulent misrepresentation for

CAN’s alleged refusal to permit a Scientologist to attend

CAN’s annual meeting. R. C217-218.

CAN was the prevailing party in all of these lawsuits.

R. C213-227. The various courts granted CAN’s motions

for summary judgment in five cases, granted motions to

dismiss in four more cases, dismissed ten other cases with

prejudice, and permitted voluntary dismissals by the

individual Scientologists in two cases. Ibid. Most of the

civil rights claims were decided in favor of CAN : _ the

obvious ground that CAN, a private organization and not a

place of public accommodation, is not governed by the

applicable civil rights laws. See, e.g., R. C215-217, C218,

C220, C226. Moreover, in securing a voluntary dismissal,

the nominal plaintiff in one suit even admitted that “the

lawsuit is without foundation in fact and was instigated by

the Church of Scientology.” R. C214. Two other suits

similarly were utterly lacking in factual support; in both

instances, Scientologists brought suit alleging that CAN had

discriminated against them in denying them membership even

though neither nominal plaintiff had even bothered to apply

for such membership prior to instituting legal action. R.

C214-215, C226.”

' In their statement of the case, petitioners have

presented “facts” that are wholly at odds with the allegations

of the complaint. For example, without citation to the

record, petitioners state that CAN has targeted Scientology

as a cult and that in an effort to bring balance and fairness to

(continued...)

6

C. The State Court Proceedings

1. Circuit Court of Cook County. In 1994, CAN

filed the instant suit. R. C3. In its second amended

complaint, which is the pleading at issue here, CAN alleged

that defendants Church of Scientology International, Bowles

& Moxon, and Church of Scientology Illinois had conspired

to engage in malicious prosecution. R. C227-230. Before

the parties conducted any discovery, the trial court dismissed

CAN’s complaint for failure to state a claim under then-

existing Illinois law. Pet. App. 35a-42a.

2. Appellate Court of Illinois. The Appellate

Court affirmed the dismissal of CAN’s complaints. The

court reasoned that CAN’s allegations did not satisfy two

elements required to state a claim for malicious prosecution

under Illinois law: (1) the underlying litigation must have

been favorabiy terminated in the malicious prosecution

plaintiff's favor, and (2) the plaintiff must have suffered

special damages in defending against the underlying suits.

Pet. App. 19a-34a. In regard to the former, the court held

that the voluntary and involuntary dismissals, dismissals for

failure to state a cause of action, and summary judgments

obtained by CAN did not satisfy the Illinois favorable

termination standard, which required a judicial determination

that “deals with the factual issue or issues of a case.” Id. at

25a (emphasis in original). With respect to the latter, the

2(_..continued)

CAN’s educational efforts, a number of Scientology parishio-

ners attempted to join CAN and then filed test cases chal-

lenging CAN’s refusal to admit them as members. Pet. 3.

None of this is in the complaint. In view of the procedural

posture of the case, these assertions are not properly before

this Court and must be disregarded.

7

court held that the damages alleged by CAN constituted the

ordinary harm generated from any legal action. Jd. at 29a.

3. Supreme Court of Illinois. The Illinois

Supreme Court reversed and remanded the cause to the

circuit court for further proceedings. Pet. App. la-18a. In

analyzing the favorable termination requirement, the court

found that the approach followed in recent decades by the

Illinois appellate courts was “at odds with modern tort law,”

id. at 8a, and proceeded to adopt the approach of the

Restatement (Second) of Torts § 674. Jd. at lla. Then,

applying the Restatement approach to CAN’s complaint, the

court found that CAN had adequately alleged the favorable

termination of the underlying actions. /d. at 12a.

The court also concluded that CAN had sufficiently pled

special damages:

“[T]he present case involves allegations that a large

national corporation improperly induced its

members to engage in a national campaign of

simultaneous malicious prosecution. Plaintiff has

alleged that the Church of Scientology instituted the

simultaneous suits, not to resolve any legal dispute

between the parties, but to keep plaintiff from

engaging in its business of disseminating

information regarding religious freedom. The

invidiousness of the alleged conspiracy is best

reflected in the fact that plaintiff was sued 21 times

over the course of a 17-month period in

jurisdictions ranging from New York to California.

Such a sustained onslaught of litigation can hardly

be deemed ‘ordinary’ if plaintiff can prove that the

actions were brought without probable cause and

with malice. In view of these circumstances, we

believe that plaintiff has set forth facts, which if

proved true, satisfy our special injury rule.”

Pet. App. 16a-17a.

Finally, the court briefly touched upon defendants’ First

Amendment argument, noting that while the Constitution

“affords protection to the honest litigator in search of

resolutions to true legal disputes,” it “does not provide the

right to any individual to assist another, with money or

otherwise, in the prosecution of a suit which has been filed

with malice and without probable cause.” Pet. App. 17a

(emphasis in original). The court then held that because

defendants “challenged plaintiff's complaint by way of a

* * * motion to dismiss * * * defendants’ constitutional

argument, which is a fact-dependent defense to the action

* * * cannot be considered in the context of the present

motion to dismiss.” /d. at 17a-18a (emphasis added). The

court added, however, that “[nJothing in our opinion

prevents defendants from raising the first amendment’s

protections at the appropriate juncture in this case.” Jd. at

18a.

In sum, although the court stressed that “[a]n action for

malicious prosecution remains one that is disfavored in

law,” Pet. App. 18a, it concluded that CAN had sufficiently

alleged the elements of the tort under Illinois law. /bid.

Accordingly, the court “reverse[d] the judgments of the

appellate and circuit courts, and remand[ed] the matter to the

circuit court for further proceedings consistent with this

opinion.” Ibid.

REASONS FOR DENYING THE PETITION

The question presented in the petition plainly does not

warrant this Court’s review for several reasons. The most

obvious of these reasons is that the Court lacks jurisdiction.

Under well-settled principles, addressed most recently in

Jefferson v. City of Tarrant, 118 S. Ct. 481 (1997), the

decision of the Supreme Court of Illinois is not reviewable

by this Court because the Illinois high court did not render

9

a “[f]inal judgment[] or decree[],” as required to invoke this

Court’s jurisdiction under 28 U.S.C. § 1257(a). All that the

Supreme Court of Illinois did in the decision sought to be

reviewed was to reverse the dismissal of a complaint and

remand the case to the state trial court “for further

proceedings consistent with this opinion.” Pet. App. 18a.

Its order thus was “avowedly interlocutory,” Jefferson, 118

S. Ct. at 486, and cannot be reviewed by this Court at this

time.

Moreover, because the state supreme court has not even

considered — let alone “finally determined” — the federal

issue raised by petitioners, none of the exceptions recognized

by this Court to the “firm final judgment rule,” Jefferson,

118 S. Ct. at 485-86, could possibly apply in this case. Nor

would any of these exceptions apply had the Supreme Court

of Illinois actually decided the federal issue. In short, given

the procedural posture of the case, there is absolutely no

basis for review in this Court of the question presented.

Even if this Court had jurisdiction, the petition should

be denied as premature for prudential reasons. One of the

most fundamental and deeply rooted canons of constitutional

adjudication is the principle that this Court will not “decide

questions of a constitutional nature unless absolutely

necessary to a decision of the case.” Ashwander v.

Tennessee Valley Authority, 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring). This case presents a clear

occasion for application of this self-imposed principle of

judicial restraint. In its opinion, the Supreme Court of

Illinois expressly stated that the federal constitutional

question raised by petitioners “cannot be considered in the

context of the present motion to dismiss.” Pet. App. 18a

(emphasis added). The court then expressly invited

petitioners to raise their First Amendment defense on remand

“at the appropriate juncture in this case,” ibid., at which

time the issue presented in this petition will become moot if

10

petitioners prevail. It is difficult to conceive of

circumstances in which a question presented to this Court in

a petition for writ of certiorari would be more patently

premature.

Finally, even apart from the insurmountable

jurisdictional and prudential obstacles noted above, the Court

should not hear this case because the factual premise upon

which the petition is based is fictitious. Petitioners chose to

attack the complaint in a motion to dismiss. Accordingly,

the allegations set forth in the complaint must be accepted as

true at this stage of the case. Those allegations charge

petitioners with instigating and maintaining over 20 meritless

civil suits, with malice and without probable cause, for the

purpose of harassing and eliminating a competitor in the

marketplace of ideas. This Court’s decisions make clear that

such activities, if proven to be true, are not entitled to

protection under the First Amendment. The petition,

however, essentially ignores the complaint’s allegations,

substituting instead the petitioners’ view of the facts. That

is impermissible. Petitioners will have an opportunity to

contest CAN’s allegations on remand, but for now the Court

must accept as true the complaint’s allegations that

petitioners have engaged in a pattern of filing vexatious

lawsuits against CAN. And it is clear under this Court’s

decisions that this sort of abuse of the judicial system is not

protected by the Constitution.

I. THIS COURT LACKS JURISDICTION OVER THE

NON-FINAL DECISION OF THE SUPREME

COURT OF ILLINOIS.

A. 28 U.S.C. § 1257(a) Limits This Court’s

Jurisdiction To Review State Court Decisions To

Final Judgments Of A State’s Highest Court.

In Jefferson v. City of Tarrant, 118 S. Ct. 481 (1997),

a decision issued one week before the instant petition was

11

filed, this Court reiterated the longstanding rule that it lacks

jurisdiction over interlocutory rulings of state supreme

courts. As the Court explained, “Congress has limited our

review of state-court decisions to ‘[f]linal judgments or

decrees rendered by the highest court of a State in which a

decision could be had.’” Jd. at 484 (quoting 28 U.S.C. §

1257(a)). This provision, the Court continued, “establishes

a firm final judgment rule” that “‘is not one of those

technicalities to be easily scorned.’” Jd. at 485, 486 (quoting

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124

(1945)). Rather, “‘[iJt is an important factor in the smooth

working of our federal system,’” id. at 486, that serves

several ends:

“(1) it avoids piecemeal review of state court

decisions; (2) it avoids giving advisory opinions in

cases where there may be no real ‘case’ or

‘controversy’ in the sense of Art. III; [and] (3) it

limits review of state court determinations of

federal constitutional issues to leave at a minimum

federal intrusion in state affairs.”

North Dakota State Board of Pharmacy v. Snyder’s Drug

Stores, Inc., 414 U.S. 156, 159 (1973).

Under section 1257(a), a state court decision is not

reviewable by this Court unless it is final “in two senses: it

must be subject to no further review or correction in any

other state tribunal; it must also be final as an effective

determination of the litigation and not of merely interlocutory

or intermediate steps therein.” Market Street R. Co. v.

Railroad Comm’n, 324 U.S. 548, 551 (1945). In short, “[iJt

must be the final word of a final court.” Jbid. This Court

has consistently recognized, with rare exceptions described

below, that “the overruling of a demurrer, like the issuance

of a temporary injunction, is not a ‘final’ judgment.” Pope

v. Atlantic Coast Line R. Co., 345 U.S. 379, 382 (1953); see

12

also Missouri & K. I. R. Co. v. Olathe, 222 U.S. 185

(1911); Clark v. Kansas City, 172 U.S. 334 (1899); Meagher

v. Minnesota Thresher Mfg. Co., 145 U.S. 608, 610-11

(1892); McComb v. Commissioners, 91 U.S. 1 (1875). As

the leading Supreme Court treatise has summarized,

“In civil litigation, the judgment of the highest

state court relating to a demurrer or motion to

dismiss a complaint is final only if the case is

thereby disposed of conclusively. Thus, where a

dismissal of the suit has not been ordered, or

where leave to amend or answer over has been

granted, finality has been found lacking.”

Robert L. Stern, Eugene Gressman, Stephen M. Shapiro &

Kenneth S. Geller, Supreme Court Practice 106 (7th ed.

1993) (emphasis added).

Here, as in Jefferson, the decision of the state supreme

court reversing the trial court’s dismissal of CAN’s

complaint “was not a ‘final judgment,’” but was instead

“avowedly interlocutory.” 118 S. Ct. at 486. The Supreme

Court of Illinois, in words almost identical to those used by

its Alabama counterpart in Jefferson, “remand[ed] the matter

to the circuit court for further proceedings consistent with

this opinion.” Pet. App. 18a. Compare City of Tarrant v.

Jefferson, 682 So. 2d 29, 31 (Ala. 1996) (remanding “for

further proceedings consistent with this opinion”). Thus, as

in Jefferson, “[a]bsent settlement or further dispositive

motions, the proceedings on remand will include a trial on

the merits of the state-law claims.” 118 S. Ct. at 486; see

also O'Dell v. Espinoza, 456 U.S. 430, 430 (1982) (per

curiam) (“Because the Colorado Supreme Court remanded

this case for trial, its decision is not final ‘as an effective

determination of the litigation’”); cf. Hathorn v. Lovorn, 457

U.S. 255, 262 (1982) (observing that decision of Mississippi

Supreme Court “plainly did not appear final at the time it

13

was rendered” where Court remanded case “for further

proceedings not inconsistent with [its] opinion”). In these

circumstances, this Court lacks jurisdiction over the decision

of which petitioners seek review, and the petition should be

denied.

B. Any Effort To Invoke An Exception To The

Finality Requirement Would Be Futile Because

The Supreme Court Of Illinois Did Not Finally

Determine The Federal Issue Presented In The

Petition.

While the “firm final judgment rule” is “not * * * to be

easily scorned,” Jefferson, 118 S. Ct. at 485-86, this Court

recognized in Cox Broadcasting Corp. v. Cohn, 420 U.S.

469 (1975), “four categories of * * * cases in which the

Court has treated the [state court] decision on the federal

issue as a final judgment for the purposes of 28 U.S.C. §

1257 and has taken jurisdiction without awaiting the

completion of the additional proceedings anticipated in the

lower state courts.” Jd. at 477.2’ Significantly, however,

these four categories of cases all involve “situations in which

the highest court of a State has finally determined the federal

issue present in a particular case.” Ibid. (emphasis added);

see also Flynt v. Ohio, 451 U.S. 619, 621 (1981) (noting that

“in most, if not all, of the cases falling within the four

exceptions, not only was there a final judgment on the

federal issue for purposes of state-court proceedings, but also

there were no other federal issues to be resolved”).

, In post-Cox cases, this Court has suggested that these

exceptions, particularly the fourth exception, should be

narrowly construed, so as not to “swallow the rule” requir-

ing a final judgment. See Flynt v. Ohio, 451 U.S. 619, 622

(1981); see also Stern et al., supra, at 104.

14

Here, petitioners cannot even demonstrate that the

Supreme Court of Illinois has “finally determined the federal

issue presented” in this case, let alone satisfy the criteria for

invoking any of the specific Cox exceptions. Indeed, the

Supreme Court of Illinois has not even decided the federal

issue once — it specifically declined, at this stage of the

litigation, to rule on the merits of the federal question that

petitioners have asked this Court to review. The Illinois high

court did acknowledge the decisions of this Court upon

which defendants relied (and cite here, too), but “dispute[d]

the defendants’ reliance upon them” given the allegations

here. Pet. App. 17a. As the court observed, while the

Constitution “affords protection to the honest litigator in

search of resolutions to true legal disputes,” it “does not

provide the right to any individual to assist another, with

money or otherwise, in the prosecution of a suit which has

been filed with malice and without probable cause.” Jbid.

But given the procedural posture of this case, the court did

not decide the issue. To the contrary, because defendants

“challenged plaintiff's complaint by way of a * * * motion

to dismiss,” the court expressly held that defendants’

“constitutional argument, which is a fact-dependent defense

to the action * * * cannot be considered in the context of the

present motion to dismiss.” /d. at 17a-18a (emphasis added).

Then, to underscore the fact that further proceedings in the

state trial court “could effectively moot the federal-law

question,” Jefferson, 118 S. Ct. at 486, the court added that

“[nJothing in our opinion prevents defendants from raising

the first amendment’s protections at the appropriate juncture

in this case.” Pet. App. 18a. In sum, then, because the

federal issue raised by petitioners has not been decided at all

by the Illinois Supreme Court — let alone “finally decided”

— petitioners cannot invoke any of the Cox exceptions to the

finality rule for state court judgments.

15

C. Even If The Supreme Court Of Illinois Had

Finally Decided The Federal Issue, None Of The

Cox Exceptions To The Finality Rule Would

Apply.

Moreover, even if the Supreme Court of Illinois had

finally decided the First Amendment issue raised by

defendants, none of the Cox exceptions would apply in any

event.

The first category includes “cases in which * * * the

federal issue is conclusive or the outcome of further

proceedings preordained.” Cox, 420 U.S. at 479. As an

example of this type of case, the Cox Court cited Mills v.

Alabama, 384 U.S. 214, 217-18 (1966), in which the finality

rule was overlooked because “the appellant had no defense

other than his federal claim and could not prevail at trial on

the facts or any nonfederal ground.” Pope v. Atlantic Coast

Line R. Co., 345 U.S. 379 (1953), also falls within this

category. There, the Court took jurisdiction over a state

court judgment that “ordinarily” would not have been

considered final because the petitioner was “both explicit and

free with his concession that his case rests upon his federal

claim and nothing more.” /d. at 382. As much as we wish

this were the case here, we have received no indication that

petitioners have conceded that CAN’s case on the merits of

the state law claims is so strong that the outcome on remand

is “preordained” or that their defense rests solely on the First

Amendment. Nor did the Supreme Court of Illinois suggest

that the proceedings on remand are a mere formality; the

court simply held that CAN has adequately alleged a claim

for malicious prosecution, Pet. App. 18a, a very different

thing from prevailing at trial on that claim.

The second category encompasses cases “in which the

federal issue, finally decided by the highest court in the

State, will survive and require decision regardless of the

16

outcome of future state-court proceedings.” Cox, 420 U.S.

at 480. In such cases, “[nJothing * * * short of settlement

of the case, would foreclose or make unnecessary decision on

the federal question.” Jbid. Application of this exception

also is plainly foreclosed by the Illinois high court’s

statement that “[nJothing in our opinion prevents defendants

from raising the first amendment’s protections at the

appropriate juncture in this case.” Pet. App. 18a. In other

words, the federal question raised in the petition might

become moot if defendants prevail on remand either on state

law grounds or on their First Amendment defense.

The third category involves “situations where the federal

claim has been finally decided, with further proceedings on

the merits in the state courts to come, but in which later

review of the federal issue cannot be had, whatever the

ultimate outcome of the case.” Cox, 420 U.S. at 481. The

paradigmatic example is California v. Stewart, 384 U.S. 436,

498 n.71 (1966), in which this Court “explain[ed] that the

state judgment was ‘final’ since an acquittal of the defendant

at trial would preclude, under state law, an appeal by the

State.” Cox, 420 U.S. at 481. This exception also does not

apply here. The First Amendment issue remains open for

consideration by the Illinois courts on remand from the

Supreme Court of Illinois, and if it is not mooted in the

course of those proceedings, it will be ripe for consideration

by this Court after a final decision has been rendered.

Finally, the fourth Cox exception also would not apply

either. This exception may be invoked where “reversal of

the state court on the federal issue would be preclusive of

any further litigation on the relevant cause of action” and

“refusal immediately to review the state-court decision might

seriously erode federal policy.” Cox, 420 U.S. at 482-83.

This Court, in fact, relied on this exception in finding

jurisdiction over a decision of the Georgia Supreme Court in

Cox itself. In doing so, the Court observed that the state

17

court decision was “plainly final on the federal issue” and

“even if appellants prevailed at trial and made unnecessary

further consideration of the constitutional question, there

would remain in effect the unreviewed decision of the State

Supreme Court” upholding “a statute the constitutionality of

which is in serious doubt.” Jd. at 485-86 (emphasis added).

There are no such concerns here. In its opinion

reinstating CAN’s complaint, the Supreme Court of Illinois

simply did not render a decision of any kind on the merits of

petitioners’ First Amendment defense. The absence of a

ruling from the Illinois high court on this issue means that

there is no precedent at all in need of review (and

correction).

Moreover, it is by no means clear that a decision on

remand in petitioners’ favor on the First Amendment

question “would be preclusive of any further litigation” on

CAN’s cause of action. Illinois has no obligation to require

special damages as an element of a malicious prosecution

claim. If the Illinois courts were to decide that the special

damage requirement infringed upon activity protected by the

First Amendment, they would be free to redefine that

element, or to eliminate it altogether as a majority of states

have done. See Reporter’s Note to Appendix, Restatement

(Second) of Torts § 674, at 438 (1981) (noting that the “clear

and growing majority” of thirty states follow the “American”

rule which does not require special damages).

Il. THE DOCTRINE OF AVOIDING UNNECESSARY

OR PREMATURE ADJUDICATION OF

CONSTITUTIONAL QUESTIONS ALSO

SUPPORTS DENIAL OF THE PETITION.

Even if the statutory limitations on this Court’s

jurisdiction did not impose an absolute bar on review of this

case, the petition should be denied pursuant to the closely

related prudential doctrine that the Court will not “decide

18

questions of a constitutional nature unless absolutely

necessary to a decision of the case.” Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J.,

concurring). This doctrine has been described as a

“fundamental and long-standing principle of judicial

restraint,” Lyng v. Northwest Indian Cemetery Protective

Ass'n, 485 U.S. 439, 445 (1988), that is “more deeply

rooted than any other in the process of constitutional

adjudication.” New York City Transit Authority v. Beazer,

440 U.S. 568, 582 (1979). Although the doctrine has been

developed by this Court “for its own governance in * * *

cases confessedly within its jurisdiction,” Ashwander, 297

U.S. at 346 (Brandeis, J., concurring), it bears a “close

connection” to the constitutional and statutory “limitations on

[the Court’s] jurisdiction.” Minnick v. California Dept. of

Corrections, 452 U.S. 105, 122 n.30 (1981). See also Rescue

Army v. Municipal Court, 331 U.S. 549, 571 (1947)

(explaining that “some if not all” of the “ultimate

foundations” for the policy of avoiding the premature

adjudication of constitutional issues “also sustain the

jurisdictional limitation[s]” on the Court).

In view of the important policies at stake when the

jurisdictional and prudential restraints on the Court converge,

a petitioner bears a higher “burden of affirmatively

establishing this Court’s jurisdiction” when seeking review

of a federal constitutional issue arising out of state court

litigation. See Republic Natural Gas Co. v. Oklahoma, 334

U.S. 62, 67-71 (1948). As the Court has explained, the

“prerequisite for the exercise of the appellate powers of this

Court” of a final judgment of the highest state court “is

especially pertinent when a constitutional barrier is asserted

against a State court’s decision on matters peculiarly of local

concern.” /d. at 67. In such circumstances, “(t]he policy

against premature constitutional adjudications demands that

any doubts * * * be resolved against jurisdiction.” /d. at 71.

19

These principles are fully applicable here, and they

provide another compelling reason for denying the petition.

Petitioners raise a First Amendment issue in the context of

a suit for malicious prosecution governed by Illinois law. As

explained above, the Illinois courts have not rendered a final

decision on either the federal or state law aspects of the

action. To the contrary, petitioners have been expressly

invited by the Supreme Court of Illinois to press their federal

claim “at the appropriate juncture” on remand. Pet. App.

18a. And if they are successful in doing so, or if they

prevail on state law grounds, the question presented in the

instant petition will become moot. Where finality is so

clearly lacking (in any sense of the word), consideration of

a First Amendment question is entirely unwarranted.

fil. THE FIRST AMENDMENT DOES NOT PROTECT

THE ACTIVITIES ALLEGEDLY UNDERTAKEN

BY THE DEFENDANTS IN ANY EVENT.

As demonstrated above, the jurisdictional and prudential

obstacles to review of the question presented in this petition

are insurmountable. But even if they were not, this would

not be an appropriate case for review because petitioners’

entire First Amendment claim rests upon a misapprehension

of both the allegations of CAN’s complaint and the scope of

the constitutional right to access to the courts. Once these

erroneous premises are recognized and the issues correctly

framed, this Court’s decisions establish beyond any doubt

that the First Amendment does not protect the blatant misuse

of the litigation process alleged to have taken place here.

Petitioners contend that the decision of the Supreme

Court of Illinois “directly conflicts with decisions of th[is]

Court and abridges the First Amendment rights of

petitioners” (Pet. 1) by “expand[ing] the definition of special

damages to include instances where a defendant has

encouraged and coordinated a series of lawsuits to be brought

20

to challenge discriminatory practices.” Jd. at 13.“ Cloaking

themselves in the mantel of the NAACP civil rights activists,

petitioners claim that the court has infringed upon their right

to “obtain meaningful access to the courts” through “group

legal action,” as recognized in “the Button line of cases.” Jd.

at 13-15.

Like the Supreme Court of Illinois, CAN “do[es] not

dispute the correctness of these Supreme Court decisions,”

but only with “the defendants’ reliance upon them.” Pet.

App. 17a. It is beyond dispute that “[t]he right of access to

the courts is * * * one aspect of the right of petition” under

the First Amendment. California Motor Transport Co. v.

Trucking Unlimited, 404 U.S. 508, 510 (1972). But, as

explained below, this right is not absolute; it does not

extend, for example, to the institution of “a pattern of

baseless, repetitive claims,” id. at 513, or to “suits based on

insubstantial claims * * * that lack * * * a ‘reasonable

basis.’” Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S.

731, 743 (1983); see also Wright v. DeArmond, 977 F.2d

339, 347 (7th Cir. 1992) (“While normally protected by the

Contrary to petitioners’ contention, the Supreme

Court of Illinois did mot expand its conception of special

damages. In fact, the Court explicitly “stress[ed] that [its]

holding with respect to the special injury requirement should

not be viewed as a rejection of the rule as set forth in [its]

earlier opinions.” Pet. App. 18a. As the Court explained,

its holding followed from the “common theme with respect

to the special injury rule which runs throughout all of this

court’s opinions on the subject” that the courts have a

“responsibility to maintain a proper balance between the

societal interest in preventing harassing suits and in permit-

ting the honest assertion of rights in our courtrooms.” I/d. at

16a.

21

first amendment, the invocation of administrative or judicial

proceedings may be tortious and actionable if employed for

a purpose that is unlawful and is other than and in addition

to the goal sought openly in the proceeding itself”): Grip-

Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466. 472

(7th Cir. 1982) (Posner, J.) (noting that the “line” between

proper and improper litigation purposes “is crossed when

[plaintiff's] purpose is not to win a favorable judgment * * *

but to harass [defendant], and deter others, by the process

itself — regardless of outcome — of litigating”) .*

Whether petitioners truly were pursuing legitimate test

cases (as they insist), or whether the suits were instigated by

the petitioners maliciously and without probable cause to

drain CAN’s resources and eliminate a competitor in the

marketplace of ideas (as the pleadings allege), cannot be

determined at this stage of the case. The Supreme Court of

Illinois, in fact, recognized this, holding simply “that

plaintiff has set forth facts, which if proved true, satisfy our

special injury rule.” Pet. 17a (emphasis added) (explaining

that it could only consider “the allegations contained within

the four corners of plaintiff's complaint”). For now, the

procedural posture of the case dictates that CAN’s allegations

be taken as true.

Petitioners endeavor to resist the reality that this case is

currently governed by the allegations of CAN’s complaint by

ignoring it. As such, petitioners’ question presented simply

presumes that the Supreme Court of Illinois swept conduct

protected by the First Amendment within the ambit of

malicious prosecution. Petitioners then try to bolster this

Petitioners’ own case, Jn re Primus, 436 U.S. 412

(1978), at least implicitly acknowledges these limits, empha-

sizing the interests of “suitable litigants,” id. at 431, pursu-

ing “lawful means of vindicating legal rights,” id. at 432.

22

sweeping assumption by presenting “facts” in their statement

of the case that are wholly at odds with the allegations of the

complaint. Most egregiously, petitioners, without citation to

the record, assert that CAN has targeted Scientology as a cult

and that in an effort to bring balance and fairness to CAN’s

educational efforts, a number of Scientology parishioners

attempted to join CAN and then filed test cases challenging

CAN’s refusal to admit them as members. Pet. 3. This

transparent and self-serving attempt to contradict the

allegations of the complaint must be disregarded. Bryson v.

News America Publications, Inc., 177 Ill. 2d 77, 91, 672

N.E.2d 1207, 1216 (1996) (under Illinois law, in ruling on

a motion to dismiss, the court “may consider only the

allegations of the complaint * * * and may not consider other

supporting material”). And once petitioners’ effort to recast

the factual allegations of the complaint in their favor is

rejected, the assertion that the Supreme Court of Illinois

defined its special damage rule to include First Amendment

protected conduct rests on nothing more than petitioners’

own ipse dixit. This cannot overcome the allegations of the

complaint, which charge petitioners with filing vexatious

lawsuits, not legitimate “test cases.”

The First Amendment right of access to the courts is

limited to litigants prosecuting meritorious actions. “[S]uits

based on insubstantial claims * * * that lack * * * a

‘reasonable basis’ * * * are not within the scope of First

Amendment protection.” Bill Johnson’s Restaurants, 461

U.S. at 743 (emphasis added). As this Court explained,

“The first amendment interests involved in private

litigation — compensation for violated rights and

interests, the psychological benefits of vindication,

public airing of disputed facts — are not advanced

when the litigation is based on _ intentional

falsehoods or on knowingly frivolous claims.

Furthermore, since sham litigation by definition

23

does not involve a bona fide grievance, it does not

come within the first amendment right to petition. ”

Ibid.

Other cases also have established the critical distinction

between legitimate claims entitled to First Amendment

protection and “sham” litigation that is not. California

Motor Transport is particularly instructive in this regard.

Like the instant case, that case involved allegations of

“concerted action by petitioners to institute state and federal

proceedings,” 404 U.S. at 509, “with or without probable

Cause, and regardless of the merits of the cases,” id. at 512,

for the purpose of “putting their competitors, including

plaintiff, out of business,” id. at 511. These allegations, the

Court found, fell in the category of unprotected litigation

activity. As the Court explained, “a pattern of baseless,

repetitive claims * * * [that] leads the factfinder to conclude

that the administrative and judicial processes have been

abused * * * cannot acquire immunity by seeking refuge

under the umbrella of ‘political expression.’” Jd. at 512

Since California Motor Transport, this Court has

reaffirmed that “repetitive lawsuits carrying the hallmark of

insubstantial claims,” Orter Tail Power Co. v. United States,

410 U.S. 366, 380 (1973), and “private action that is not

genuinely aimed at procuring favorable government action.”

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S.

492, 500 n.4 (1988), constitute unprotected “sham”

litigation. And more recently, in Professional Real Estate

Investors, Inc. v. Columbia Pictures Industries, Inc., 508

U.S. 49 (1993), this Court cited California Motor T. ransport

with approval, explaining that the complaint in California

Motor Transport “showed a sham not entitled to immunity,”

id. at 57, on the basis of its allegations concerning “the

institution of legal proceedings ‘without probable cause.’”

Id. at 58.

24

Petitioners contend that Professional Real Estate

Investors generally governs the scope of “First Amendment

protections afforded a malicious prosecution defendant,” Pet.

14, but that case is factually inapposite given the allegations

of the complaint. Professional Real Estate Investors, as

Judge Kozinski has explained, “provides a strict two-step

analysis to assess whether a single action constitutes sham

petitioning,” which involves a “retrospective” inquiry into

whether the suit had “objective merit.” USS-Posco Indus. v.

Contra Costa County Building & Constr. Trades Council, 31

F.3d 800, 810-11 (9th Cir. 1994) (emphasis added).

California Motor Transport, by contrast, “deals with the case

where the defendant is accused of bringing a whol series of

legal proceedings,” and requires a “prospective” inquiry into

whether the “legal filings [were] made, not out of a genuine

interest in redressing grievances, but as part of a pattern or

practice of successive filings undertaken essentially for

purposes of harassment.” Jd. at 811 (emphasis added).

Here, as in USS-Posco Industries, the allegations “track the

language of Califorria Motor Transport.” Ibid. Indeed, this

case presents a far stronger case on the merits than USS-

Posco Industries because CAN’s complaint alleges that all 21

of the underlying suits terminated in its favor, Pet. App. 11a-

12a, whereas the underlying plaintiffs prevailed in 15 of the

29 suits in USS-Posco Industries. 31 F.3d at 811.

In sum, California Motor Transport plainly governs this

case and renders petitioners’ First Amendment defense

wholly ineffectual at this stage of the proceedings. Under

that case and the other decisions of this Court cited above,

the First Amendment will not save petitioners from liability

if CAN’s allegations — that petitioners have instituted a

series of legal proceedings, with malice and without probable

cause, for the purpose of harassing and eliminating a

competitor in the marketplace of ideas — are proven true.

If, on the other hand, CAN fails to prove its allegations, the

25

First Amendment question raised in the instant petition will

be moot. Accordingly, even if the jurisdictional and

precedential barriers to a grant of certiorari were not present,

there would be no reason for the Court to hear this case.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted.

ROBERT M. Dow, Jr.

Counsel of Record

JAMES C. SCHROEDER

CRAIG A. WOODS

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

Counsel for Cult Awareness

Network

FEBRUARY 1998