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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1020

## Text

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No. 97-1006

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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
oS gs ) i
Pees AP SEARED 2 ww te ee il
pe Fe BP ig sa: Vv
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1917%3A2. Public record. Not legal advice.