Trainor v. Hernandez – Oral Argument – January 18, 1977

Media for Trainor v. Hernandez

Audio Transcription for Opinion Announcement – May 31, 1977 in Trainor v. Hernandez

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Warren E. Burger:

We will hear arguments next in number 1407, Trainor against Hernandez.

Mr. Dienner, I think you may proceed when you’re ready.

John Dienner III:

Mr. Chief Justice and may it please the Court.

My name is Johnny Dienner III.

I am an Assistant State’s Attorney here representing the defendants below Morgan Finley, the Circuit Court Clerk and Richard J. Elrod, the Sheriff of Cook County.

Mr. Bargiel, also with me here from the Attorney General’s Office and will be speaking for defendants, Trainor and O’Malley.

This suit originated as a consequence of the Illinois Department of Public Aids having filed an action in the Circuit Court of Cook County wherein the plaintiff, the federal plaintiff, was the then State defendant and he was charged with having fraudulently concealed certain monies which he and his wife had in a credit union from the Illinois Department of Public Aid when they, the Hernandezs, applied for public assistance.

The amount that the Illinois Department of Public Aid asserted that they received that they were not entitled to was $3,720.00.

The compliant in the appendix starting at page 15, sets forth the facts of this cause of action and the allegations and facts and support thereof may be found starting at page 15.

Mr. Hernandez with his counsel came to the Circuit Court of Cook County and filed his appearance.

When he found that the attachment action had been continued for a period of time pursuant to local Circuit Court of Cook County practice, they immediately came and filed the instant federal action in United States District Court for the Northern District of Illinois Eastern Division.

Their jurisdiction was based upon 42 U.S.C. 1983 and they sought declaratory and injunctive relief from the Illinois Attachment Act.

A Three-judge-panel was convened.

The defendants filed, all defendants filed motions to dismiss and the plaintiff filed a motion for summary judgment.

The classes were certified both plaintiff and defendant classes, and the three-judge-panel ultimately declared the operative sections of the Illinois Attachment Act to be unconstitutional as violative of Due Process rights.

And the defendants, whom I represent, defendants Finley, Elrod, the Sheriff and Court clerk were enjoined from issuing and attaching pursuant to that act.

A motion for stay was denied, notices of appeal were filed with jurisdictional statement raising all issues as to all defendants was likewise filed.

The case was docketed and here we shall proceed.

Initially, I would like to speak briefly to the propriety of the class that was certified by District Judge Kirkland.

My defendants allege and assert that the plaintiff has failed to plead compliance with Rule 23 A3 in establishing the propriety of the plaintiff class.

There are allegations in that regard reflective on two counts.

First of all, while there is a conclusory allegation of irreparable injury as to all plaintiffs none has asserted factually in support of the class members.

There is no facts upon which the District Court could conclude that the class members excluding Mr. Hernandez suffered any irreparable injury.

And the second defect is that, some potential class members of the plaintiff class are also creditors.

In other words, any person, corporation or business entity could be an attaché as well as a person attempting to attach a debtors property and they therefore, would have no particular interest in the relief sought by the plaintiffs herein.

In fact, their interest would be quite to the contrary.

John Paul Stevens:

Mr. Dienner, your question is presented to your jurisdictional statement, did you raise any question about the class?

John Dienner III:

We did mention in our briefs, both our original briefs and our reply brief, the defect —

John Paul Stevens:

While it was presented in the jurisdictional statement, did you raise these questions?

I don’t think you did.

John Dienner III:

I don’t believe that the defect of the class was mentioned in the jurisdictional statement.

No, Mr. Justice Stevens.

There’s a consequence I believe that the class for relief was erroneously granted and because the entry of that order of certifying the class was of course, interlocutory order, it is not made final until the final order is presently before this Court.

I’d like to speak briefly as to the issue of abstention as well.

This being of particular concern to my clients.

My clients believe that the Federal Courts are undoubtedly the ultimate guarantors of all person’s federal rights.

They do however assert that the State Courts are the primary guarantors and this must be so for obvious reasons, otherwise, every federal issue conceivably could be raised by any plaintiff or defendant in any typical state action tort, contract and the like, would have to first come to the Federal District Court, be decided on a constitutional issues remanded to the Circuit Court of Cook County or any other State Court for further trial on the issues.

Now this of course, relegates the State Courts, in my opinion, to the role of perhaps masters in chancery to the Federal District Courts.

And this is quite antagonistic to our obviously alleged violations of comity and federalism in this case.

As a matter of fact, the Illinois Supreme Court within the last month decided a case, it was tax injunction suit, 28 East Jackson and in that case the Court made query as to whether or not they were not in fact becoming masters in chancery to the local District Court but of course, made that observation in passing.

Now, the two exceptions that will allow a Court to override the basic premises of comity and federalism as one there is either a bad faith enforcement of state laws not at issue here and never alleged or when the statute is violative of expressed constitutional provisions in every clause, paragraph, and sentence.

Now, there were no such allegations of bad faith enforcement and of course the judge, the three-judge-court did not find the violation on every clause, sentence, and paragraph.

As a consequence, the District Court, in its failure to properly take account of comity and federalism as raised and specified more accurately in the Huffman and Younger decisions.

The consequences of that action, it results in 204 State of Illinois officials being enjoined from acting pursuant to a lawfully enacted state statute.

A 102 of those State Officials are County Sheriffs, each of whom is charged with the duty of maintaining peace.

We submit that the creditors as a result of being denied the opportunity to use the Court systems and the Attachment Act what we resort to self-help was available under common law and uniform commercial code and contract provisions also that may permit self-help.

Thereby, establishing a far greater risk of breaches of peace.

To this of course, the Sheriffs have a particular interests.

This federal action by our local District Court was made prior to any State Court determinations or interpretations of the law.

William H. Rehnquist:

Mr. Dienner.

John Dienner III:

Yes, sir.

William H. Rehnquist:

Are the Sheriffs of every county in Illinois and District division, the Sheriff of Cook County bound by this decree of the District Court or are you just suggesting they will probably obey it as a precedent?

John Dienner III:

Defendant classes were certified Mr. Justice Rehnquist and Sheriff Richard J. Elrod of Cook County was a class representative on behalf of all similarly situated sheriffs throughout the State.

So, all 102 of the sheriffs of Cook County were class defendants.

Potter Stewart:

If you look at page 82 in the appendix of the jurisdictional statement, it clearly appears that the three-judge District Court thought it was at least ordering the sheriff to be in every county in Illinois.

John Dienner III:

They certainly had that expectation.

Potter Stewart:

Every court could.

John Dienner III:

That amounts as I said to over 200 state officials who’ve been enjoined as a result.

Now, this leaves creditors with a lack of full and complete remedies and of course this Court in the other prejudgment garnishment type of actions it was recognized, The creditors have no fewer rights certainly than debtors and the balance must be struck between the two.

And we assert, of course, that that balance was struck in the situation and that the Federal District Court and their action was totally unwarranted in this regard and has unnecessarily interfered with matters of special state concern.

John Dienner III:

As to issues of state remedies available and the like I at this point, if it please the Court will defer to Mr. Bargiel who will speak for the Attorney General’s office.

Warren E. Burger:

Mr. Bargiel.

Paul J. Bargiel:

Mr. Chief Justice, may it please the Court.

My name is Paul Bargiel.

I am an Assistant Attorney General from the State Illinois and I represent the appellants Trainor and Hernandez in this matter.

Appellant Trainor is the Director or Acting Director of the Illinois Department of Public Aid and defendant O’Malley.

I’m sorry appellant O’Malley is an employee of the Illinois Department of Public Aid and he was at the behest of appellant’s O’Malley and Trainor that the writ of attachment which is the subject of this appeal was sued out in the lower court.

In the brief time allotted to me, I would like to take a very simple and straight-forward position on behalf of my clients.

We suggest to contend to the Court that anytime a plaintiff comes into a Federal Court and seeks an injunction intervening in a pending State Court proceeding, where the state is bringing the action in a State Court and where the state is doing so in aid of a valid and legitimate state purpose that the Federal Court ought to refrain from issuing such an injunction in the absence of exceptional circumstances.

Now, this Court has recognized in several –

Potter Stewart:

Where the State or state agent is the plaintiff in the State Court.

Paul J. Bargiel:

That is correct Your Honor and where —

Potter Stewart:

And the like here proposed–

Paul J. Bargiel:

That is correct.

Because that is the facts that–those are the facts which the record presents in this case.

Potter Stewart:

You got any better reason for remedy to do that?

Do they happen to be the facts in this case?

Paul J. Bargiel:

No, not that they just happen to be the facts in this case but where the state is bringing the cause of action and they’re doing so in support of a valid and legitimate state purpose, it seems to me that the principles which underlying comity and federalism are obviously more appropriate than where the plaintiff in a lower court action, a private citizen bringing an action against another private citizen and I think that is a first statement of some of the decisions of this Court in recent times.

The exceptional circumstances under which a plaintiff in a Federal District Court can ask for an injunction, this Court has indicated that as being demonstration or showing that there are some sort of bad faith on behalf of the state bringing the action, I suppose one example of bad faith is a demonstration that the purpose of bringing the action on behalf of the state is to harass the individual defendant.

There’s been no allegation in the plaintiff’s complaint seeking injunctive relief, that there is any bad faith purpose on behalf of the State of Illinois, that it’s purpose is to harass. There was no finding by the three-judge court in its order of memorandum opinion, that the state was acting in bad faith and that its purpose was to harass.

And in fact, no such showing can be made because the purpose which the State was actuated by in this case was to recover welfare funds which were dispersed to the Federal Court plaintiff pursuant to a request for funds wherein he lied and secreted certain assets which he had.

There are two affidavits in the record in the appendix, I should say, I think which demonstrate reasonably clearly that the Federal Court plaintiff here was in fact in all probability or the reasonable inferences that he was guilty in fact of welfare fraud.

The affidavits appear at if I’m correct page 15 and 17 of the record, appendix, I’m sorry.

And let’s see, I apologize page 52 and 53 of the record.

On In page 52, there’s an affidavit of an employee of the company at which the Federal Court plaintiff had his credit union, wherein he says that the Federal Court plaintiff, Mr. Hernandez, here has accumulated a certain amount of money in the credit union and he has an account which has been open from January 3, 1972 and they had a balance on him of $1,193.00 on November 30, 1974, this is in paragraph 3 of the affidavit at page 52.

There is an affidavit at page 53 of an employee of the Illinois Department of Public Aid wherein the employee of the department indicates that Mr. Hernandez received public assistance for the same period and in fact set on his application that he was unemployed and he had no assets.

So, it appears to me quite clear that the State was actuated by a valid and legitimate state purpose in this particular case and that in which is that of combating welfare fraud.

The other circumstance, exceptional circumstance, under which a plaintiff might be entitled to injunctive relief to restrain a pending State Court proceeding from going forward is as Mr. Dienner pointed out, in a situation where the plaintiff can show that the statute in question is patently and flagrantly violative of a constitutional prohibitions in every clause, sentence, phrase, and against whomever it may possibly be applied to, I would suggests that there are; First, that the statute here on attachment act has never at least, it’s validity has never been construed by the Illinois States Supreme Court and we would submit to this Court that there are saving constructions and applications which would result in its validity.

And one suggests that the application of the statute which we submit would result in a finding that would be constitutional, involves on page 29 of the appendix, the application of section 2 which talks about an affidavit in the statement.

It says, “in all action sounding in tort where the underlying obligations sounds in tort that before an attachment shall issue upon the affidavit of the attachment creditor, that the attachment creditor has to appear before a judge and it says, before–I’m reading on page 30 of the appendix, it says “Before the writ of attachment shall be issued, the plaintiff his agent or Attorney shall apply to the judges of the Circuit Court of the county in which the suit is to be brought or is pending and be examined under oath by such judge concerning the cause of action.

Paul J. Bargiel:

So, it is clear that even though there is no notice before the attachment takes place where the underlying action sounds in tort that the judgment creditor would have to or attachments creditor would have to appear before a judge and be examined concerning his cause of action.

John Paul Stevens:

That didn’t happen in this case, did it?

Paul J. Bargiel:

Well, in this particular case, no, Your Honor.

Because the department apparently took the position when they filed it — they did not, they did not take the position that the underlying action sounded in tort.

That may have been a mistake but it did not–

John Paul Stevens:

But this goes with your argument that the statute is not unconstitutional in every letter–

Paul J. Bargiel:

That is correct Your Honor.

John Paul Stevens:

It maybe one or two parts of their testimony.

Paul J. Bargiel:

Well, what I’m suggesting with regard to the question of abstention that is at the very least one easy example of how the statute might be constitutionally applied.

I am not saying that it’s limited to that. But for that purpose, I am suggesting it.

William H. Rehnquist:

Don’t you get some suggestion from the District Court’s opinion however, and isn’t it also too generally of this state distinctions between contract attachments and tort attachments that the reason for requiring a hearing in a tort attachment is to fix the probable amount of recovery based on a contract claim like you really don’t have that.

Paul J. Bargiel:

I frankly don’t get that impression.

I know that the Three-judge District Court in its opinion apparently construed that provision of the statute as limiting it to a determination of the amount of damages in a tort action.

However, the literal language of the statute itself which is not being construed by the Illinois Supreme Court indicates that the attachment creditor shall appear before a judge and be examined concerning the cause of action.

And I would submit to you Your Honor that that is a very limiting construction which was indulged by the Federal District Court and not one which would necessarily be indulged by the Illinois Supreme Court and that the Illinois Supreme Court ought to have an opportunity or at least the Courts of Illinois ought to have an opportunity to construe that section.

That would be my position with regard to that.

I think that the language itself is broad enough to incorporate —

John Paul Stevens:

How could they construe it in this case?

Paul J. Bargiel:

Pardon?

John Paul Stevens:

How could they construe it in this case?

This section doesn’t sound and —

Paul J. Bargiel:

Well I don’t say that they could.

John Paul Stevens:

So, the Federal Court should abstain until somebody else files some other lawsuit raising this issue?

Paul J. Bargiel:

No.

John Paul Stevens:

This procedure is very seldom used, isn’t it?

Paul J. Bargiel:

No.

That is not my position at all.

Again, with regard to this one particular provision, what I am saying is that this is an implication of the statute which will result in the finding of its constitutionality.

What I think is with regard to these plaintiffs and the facts which are presented here, I think that these plaintiffs had an opportunity.

And I must say too, but before I leave that point, I would like to say that the Federal District Court never did make a finding that the statute was patently and flagrantly violative of the constitution in every clause, phrase and so on.

Paul J. Bargiel:

And while they make with some reference to that in their memorandum.

John Paul Stevens:

Well, you just said it was patently and flagrantly violative of the constitution, they didn’t find that?

Paul J. Bargiel:

Well, they said it was unconstitutional on its face and it appears to me that there are some questions to whether or not–

John Paul Stevens:

They also used the words patently and flagrantly on page B5 of the jurisdiction statement.

Paul J. Bargiel:

Well, that’s true too.

I believe it says patently and flagrantly violative on its face.

John Paul Stevens:

Yes.

William H. Rehnquist:

That they have taken about two or three pages to analyze decisions of this Court to make up their mind.

Paul J. Bargiel:

Well, I will consider.

Yes sir.

John Paul Stevens:

They may be wrong but at least they said it, that is all I’m saying.

Paul J. Bargiel:

Okay.

Yes, I will agree to that.

It is not exactly clear to me which standard they were applying at that particular time.

I would like to if I may in a very minutes that I have left, to address myself to that fact or the other aspects of the question of abstention whenever a Federal Court plaintiff–whenever a plaintiff comes in the Federal Court and requests an injunction to stop a State Court proceeding, the second prerequisite and I submit that the first was not met here.

That there was no demonstration of clear and immediate irreparable injury as required by this Court’s decisions.

The second prerequisite is the plaintiff has to demonstrate to the Federal Court that he has no opportunity to timely raise and have adjudicated by competence state tribunal of federal questions or issues which were presented.

And our position here today is that the plaintiffs of this particular case had an opportunity to raise all these questions in a timely fashion before a competent state tribunal and conceivably could’ve had direction in the relief that they are requested before the 13 months that it took for the Federal District Court to enter its injunctions.

Potter Stewart:

So, is your point that they’re quite apart from the Younger against Harris or anything else just is a matter of the issuance of an injunction that there was an adequate remedy of law?

That you —

Paul J. Bargiel:

I would certainly take the position that they had a remedy available to them.

Yes, but that’s at a very basic —

Potter Stewart:

It’s quite apart from dual jurisdictions or federalism or anything else like the chancery should not ever issue an injunction under ordinarily equitable principles, if there is an adequate remedy of law.

Paul J. Bargiel:

Well, I–yes sir.

I think that is true.

I would agree with you, Your Honor.

I think that the plaintiffs —

Potter Stewart:

I’m asking you what you are saying that whether?

Paul J. Bargiel:

Oh, I —

Potter Stewart:

Is that your point?

Paul J. Bargiel:

Well, my point is that Younger and Huffman versus Pursue reflect the idea that in my reading is an indispensable prerequisite to obtaining relief in a Federal Court by way of an injunction plan.

That is to show that he has no opportunity to raise these questions in having timely decided in the State Court.

I’m saying yes, he has an adequate remedy but I’m also saying that Huffman and Younger reflect that kind of philosophy and I think preclude this kind of relief here.

Our position is that the plaintiff could have anytime after the writ of attachment was issued came in – he could have come into State Court, filed a motion to quash the writ.

He could have contested the facts upon which the writ was issued.

He could have tested the legal sufficiency.

That he could’ve raised the constitutional objections that he wanted to or that he has ultimately raised in the Federal Court including this motion, they stop for hearing at a time convenient to him upon proper notice to the–in this case Illinois Department of Public Aid.

Byron R. White:

Can you give me a citation or some rule or —

Paul J. Bargiel:

Well,–

Byron R. White:

–some statutory provision that contemplates this kind of motion?

Paul J. Bargiel:

On page 43 of the appendix, section 26 of the Illinois Attachment Act, indicates that provisions to the Civil Practice Act in the–

Byron R. White:

43?

Paul J. Bargiel:

Page 43, Your Honor.

Yes.

Byron R. White:

And it’s at what paragraph?

Paul J. Bargiel:

Section 26, I’m sorry.

At the bottom of the page.

It talks about Civil Practice Act applications.

It says, “The provisions in the Civil Practice Act which govern a trial procedure instead of–

Byron R. White:

Now, where do we go from there?

Paul J. Bargiel:

Well, it says including the provisions for appeal in all existing and future Amendments in the rules now and hereafter adapted shall apply to all the proceedings here under except as otherwise provided.

In section 70 of the Civil Practice Act–

Byron R. White:

What page is that?

Paul J. Bargiel:

Well, I’m sorry that is not in the appendix.

I happen to have it here.

Byron R. White:

That all, just give me the citations.

Section 70.

Paul J. Bargiel:

Section 70 of the Illinois Civil Practice Act.

Byron R. White:

And what does that — what does that permit a person to do?

Paul J. Bargiel:

It says, the Section 70 motion, is a motion to quash.

Paul J. Bargiel:

It says, any party or I’m sorry, “A party intervening to move to set aside or quash any execution bond or other proceeding may apply to the Court or to a judge at his chamber for certificate, that there is probable cause for staying for proceedings until the order of the Court on the motion and I am saying that he could have filed a motion to quash the writ of attachment with the judge in the Circuit Court of Cook County contesting the legal facts upon which the writ was issued.

Byron R. White:

Yes, but not the end — just contesting his right to an attachment or the facts underlying the basic–

Paul J. Bargiel:

I think he could — well, no I’m saying I don’t think he could’ve raised anything in that writ, that’s my position.

I got some –

Byron R. White:

Could you think of cases for that?

Paul J. Bargiel:

No, I think–

Byron R. White:

In cases, we got some Illinois cases illustrating a fellow whose bank accounts has been attached coming in and putting the credits.

Paul J. Bargiel:

No, I don’t have an Illinois case to site to you now, Your Honor.

However, in garnishment cases which offer somewhat the same procedure the–under somewhat the same procedure, our office has been served with Writs of Garnishment for state employees and the Attorney General has regularly gone into State Courts and moved to quash the writs of garnishment and–

Byron R. White:

On what ground?

Paul J. Bargiel:

Well, for a variety of reasons.

Initially we took–we said the state was not the subject to–

Byron R. White:

On the motion like that, will the Court listen to an argument for that as a note?

Paul J. Bargiel:

Yeah, I think that that’s such a matter that could be raised.

Byron R. White:

You don’t have any Illinois authority for that?

Paul J. Bargiel:

I do not have a case to site to you now.

No.

Thurgood Marshall:

Unless we have it, what do you think?

Paul J. Bargiel:

Yes, at this particular point that that is true.

The section 27 which is on the following page of the Illinois Attachment Act says that the defendant can answer traversing effects stated in the affidavit upon which the attachment is issued and the answer has to be verified.

It says, they could file a counter claim.

It seems to me that the plaintiff can file because the Civil Practice Act applies to this particular procedure that the plaintiff can file any motion which he could file in any civil proceeding and he could call that motion up for a hearing on proper notice to the other parties.

In this particular case, the Illinois Department of Public Aid.

And I think that he could raise all of the questions which he has raised in the Federal District Court.

I see that my time is long since expired and if there are no questions.

Warren E. Burger:

You have some rebuttal that’s the signal for your rebuttal.

Paul J. Bargiel:

Oh, I see the white light was on.

Any way if if it is not expired, I think, I’ve at least attempted to make my point which is that the Court, the Federal District Court, in this case should have abstained because there was no showing of clear and immediate irreparable injury.

And I think that there was inadequate remedy in this State Court available to the plaintiff for adjudication of these Federal claims.

Thank you.

Warren E. Burger:

Very well.

Mr. Lieb.

Fred L. Lieb:

Mr. Justice Burger, may it please the Court.

At the outset, I would like to emphasize that the propriety of the injunction against appellees Finley and Elrod, and the class of County Court clerks and sheriffs that they represent has not properly been presented to this Court for review.

Appellees Finley and Elrod did not file any jurisdictional statement raising any questions for review.

The jurisdictional statement of the appellants did not challenge the class nor did it challenge the propriety of the injunction against defendant classes of clerks and sheriffs.

It merely raised the question of the propriety of the injunction against the appellees–the appellants proceeding against the appellees in the State Court.

Appellees submit that in light of this fact, the injunction against the class of County Court clerks and sheriffs cannot be vacated on the appeal of the appellants since that issue has not been properly presented to this Court for review.

Thus, —

William H. Rehnquist:

You’re not saying that Elrod was not himself an appellant.

You’re just saying he didn’t preserve this issue, is that right?

Fred L. Lieb:

Under the rules of this Court, he is not an appellant.

In fact, their brief is submitted as appellees in support of the appellant’s position.

They did not–

William H. Rehnquist:

But the jurisdictional statement on the face at least in that lists Elrod as an appellant, doesn’t it?

Fred L. Lieb:

Yes.

But I believe that was mistaken of — it says jurisdictional statement for appellants Trainor and O’Malley and this Court was docketed as case of Trainor versus Hernandez.

William H. Rehnquist:

And Trainor was the only name of the appellant on the docket?

Fred L. Lieb:

Trainor and O’Malley.

Harry A. Blackmun:

Doesn’t our Rule 10 cover it?

I maybe wrong with the number.

Require it.

Fred L. Lieb:

10-1 states, I believe it’s 10-1, states that “all parties in the proceeding below shall be parties in this Supreme Court.”

However, —

Harry A. Blackmun:

But it also permits them to adopt the co-appellants’ position and I thought they’ve done that here.

Fred L. Lieb:

Precisely.

However, the jurisdictional statement of the appellants does not raise the propriety of the injunction against the appellees, the clerks and the sheriffs throughout Illinois.

Therefore, this injunction cannot be challenged on appeal and that injunction must remain in full force and effect regardless of how the Court rules on the appeal of the appellants Trainor and O’Malley.

William H. Rehnquist:

Well, you are not suggesting that we say that the District Court should have abstained in the case brought against Elrod?

Nonetheless, it’s injunctive decree as to other people who were just named as a class of defense would remand the fact.

Potter Stewart:

But you are suggesting of it, aren’t you?

Fred L. Lieb:

Yes.

Yes, Your Honor.

I believe that the Younger and Huffman under those cases, you have to look at the facts of each case and there may also be particular circumstances regarding each party.

Now in this particular case, eventhough I submit it, it’s not really before the Court, there is different circumstances.

Finley and Elrod were not parties to the State Court proceedings.

Byron R. White:

What was their class — were they members of a class?

Fred L. Lieb:

That’s right, Your Honor.

Byron R. White:

And are they class representatives here?

Fred L. Lieb:

They are representatives of the class.

Byron R. White:

Well and so if it were held that the Court should have abstained, the injunction against the entire class would be set aside.

Is that right or not?

Fred L. Lieb:

I don’t believe that the Court could even–

Byron R. White:

Oh, you’re the one who wanted the class, aren’t you?

Fred L. Lieb:

We asked for the class and —

Byron R. White:

Then, you don’t like it then?

Fred L. Lieb:

No, Your Honor.

We like it very much.

Well. [Laughter attempt]

Fred L. Lieb:

Your Honor, the class–

Byron R. White:

Are the representatives here or not?

Fred L. Lieb:

Yes, appellees Finley and Elrod.

Byron R. White:

Well, are they representatives of the class here, as appellants?

Fred L. Lieb:

No.

As appellees only.

Byron R. White:

Who are the appellants?

Fred L. Lieb:

The appellants are Trainor and O’Malley who were the Attachment Creditors in the State Court proceeding.

Byron R. White:

I see.

And so the representatives of the defendants are not here as appellants.

Who appealed?

Fred L. Lieb:

Appellants Trainor and O’Malley, the Attachment Creditors.

Potter Stewart:

Attachment Creditors.

Everybody else is an appellee.

Every other party on this case.

Fred L. Lieb:

That’s right.

All the other named parties and the class parties.

In light of this fact alone, we submit that either the appellant’s appeal must be dismissed or the judgment affirms, and there’s absolutely no effective relief that the Court can give the appellants.

If the injunction remains in effect, no creditors, including the appellants can obtain prejudgment that had been sought in Illinois.

Now, the appellants have emphasized the fact —

Thurgood Marshall:

What are we here for?

Fred L. Lieb:

We are here because the appellants filed a jurisdictional statement and this Court knows, there’s probable jurisdiction.

However, I submit that the issues raised in their appeal do not allow the Court to vacate the injunction against appellees, class representatives who have not appealed.

Thurgood Marshall:

When did you raise that point?

Fred L. Lieb:

We raised that point.

First of all, we raised it in a motion to dismiss and second, we raised it as point one in our brief.

Thurgood Marshall:

I remember that.

I didn’t remember the motion to dismiss.

Fred L. Lieb:

Yes, we initially moved to dismiss this entire appeal.

However, the Court had noted probable —

Thurgood Marshall:

Would page is that in the beginning.

Fred L. Lieb:

That would be in our motion to dismiss the appellants–

Thurgood Marshall:

You said it’s 85, right?

Fred L. Lieb:

It is not is–well, there are two places where that would be found.

One would be in our motion to dismiss the appeal and the other point would be in our brief–argument one of our brief at page 15.

The appellants have claimed that they are state officials and that they were carrying out specific state function here and therefore the injunction against them was improper.

And they point to the case of Huffman versus Pursue.

That case however is totally an opposite to the present case.

In that case, state officials were bringing a quasi-criminal action pursuant to a specific statute which gave those officials the exclusive right to bring that action.

In the instant case, the appellants utilized a general creditor’s remedy which can be utilized by any creditor in the State of Illinois and as the District Court noted it was mere happen stance, the creditor in this case happen to be in the State.

Furthermore, the District Court did not enjoin appellants from proceeding against appellees in the State Court on their claim against the appellees.

Fred L. Lieb:

In spite of the District Court’s injunction against the prejudgment seizure of property under the Illinois Attachment Act.

The appellants were always free to proceed against the appellees in the State Court on their money claim.

However, it should be pointed out that the appellants voluntarily chose to dismiss those proceedings.

They state those proceedings and ultimately dismissed those proceedings although nothing in the Federal Court injunction required them to do so.

Thus, any claim of interference with their attempts to sue the appellees simply cannot be taken seriously.

William H. Rehnquist:

Well, might they have not felt that in the absence of some sort of garnishment or attachment, the judgment would just be worthless?

Fred L. Lieb:

Your Honor, there’s no evidence in the record of that.

As a matter of fact —

William H. Rehnquist:

Do you speculate in as to why they dismissed?

Whose burden is it in this case?

Fred L. Lieb:

I believe, it’s their burden.

They are the appellants.

William H. Rehnquist:

Well, but it was your burden to make up the claim in the District Court and to show that that was unconstitutional.

Fred L. Lieb:

Well, I believe we sustain that burden in the District Court.

While the District Court proceedings were pending, the appellant stayed those State Court proceedings.

Once the Federal District Court enjoined the attachment, enjoined the appellees from proceeding to utilize the attachment act any further.

The appellants dismissed their case on the merits against the appellees.

Therefore, any claim that they make that the Federal District Court interfered with their attempts to sue the appellees in the State Court or to interfere with the litigation at all in the State Court simply doesn’t have any merit because they just dismissed that suit sue sponte.

William H. Rehnquist:

Well, but they dismissed it after they were told they couldn’t attach in connection, didn’t they?

Fred L. Lieb:

That’s correct, Your Honor.

However, the appellees were working.

They could certainly, if they could have possibly obtained a judgment here and I don’t think that the record shows that they could have.

But have they obtained a judgment, they could have utilized a whole variety of post judgment procedures to execute upon their judgment.

Byron R. White:

But why did you got to the Federal Court?

Why didn’t you take your constitutional challenges to the State Court in the attachment proceeding or in the–

Fred L. Lieb:

There are number of reasons Mr. Justice White why we went to the Federal Court.

First of all, we were raising a constitutional claim and —

Warren E. Burger:

Aren’t the State Courts in Illinois capable of dealing with constitutional claims, anymore?

Fred L. Lieb:

Yes, Your Honor.

However, this was a Federal claim under 1983 for an injunction against State officials charge with the execution of the act.

Byron R. White:

Could you have gone to the State and in this proceeding in the very preceding that was pending, could you have presented your claim in a timely manner?

Fred L. Lieb:

Not in a timely manner.

Byron R. White:

Well, that’s what I want to know how.

What could you have done in this pending state action?

And when?

Fred L. Lieb:

First of all, it has to be emphasized that whenever the issue is raised in the State Court, it’s always after the injury has occurred.

The property is seized without as we allege Due process of law.

Byron R. White:

I understand that.

Could you the next moment — could you the moment that you have heard about it gone in the Court with a motion and challenged not only the grounds for the attachment but ask the probable cause on the underlying debt be established?

Fred L. Lieb:

We could have tried, Your Honor but there is–

Byron R. White:

But, is there a procedure available for that?

Fred L. Lieb:

There is no expressed provision in the Act.

Byron R. White:

Well, I know—this is quite what I’m asking you.

Could you or not?

Fred L. Lieb:

We could’ve attempted to do so.

There is no precedent which would allow us to have done that.

We could put it–

Byron R. White:

No one has ever been attached, has ever gone into Court trying to get it released.

It is only way you can release it by putting up a bond?

Fred L. Lieb:

No, there is a number of ways.

One is putting up a bond; the other is by answering the affidavit on the merits that is denying the grounds.

Byron R. White:

That section 27.

Fred L. Lieb:

That’s right.

And then ultimately, there will be a trial in that issue.

Byron R. White:

Will I know but that doesn’t release the attachment?

Fred L. Lieb:

If you win on the merits of the attachments.

Byron R. White:

Oh, on the oath at the end of the lawsuit.

Fred L. Lieb:

I’m sorry.

Byron R. White:

No, no, at the end of the hearing attachment.

Fred L. Lieb:

That’s right.

Fred L. Lieb:

At the hearing of the attachment.

If the creditor files an affidavit, they Act provides that the debtor may file a counter affidavit.

Byron R. White:

I direct your attention to such.

Both spelled out on the top of page 44 of the appendix.

Well, suggested–

Fred L. Lieb:

And that there will be a hearing on the factual issue as to whether or not an attachment was justified.

There is no provision in the Act for moving for any other type of hearing.

Thurgood Marshall:

Could you have filed an action for an injunction against the enforcement of the Act on the ground that it was a violation of United States Constitution?

Fred L. Lieb:

We could have filed a separate suit in State Courts.

Thurgood Marshall:

This one is separate too?

Fred L. Lieb:

Yes.

I think we could have filed the separate suit in State Court.

Thurgood Marshall:

Just like one in the Federal?

Fred L. Lieb:

Exactly.

However, I don’t–

Byron R. White:

In 1983.

Fred L. Lieb:

Exactly.

However, I don’t believe that Younger versus Harris requires an exhaustion of all state remedies.

Thurgood Marshall:

The question was you couldn’t?

Fred L. Lieb:

Yes, sir.

Thurgood Marshall:

And theoretically, you could have gotten full relief.

Fred L. Lieb:

Well, the law in Illinois is unsettled on that.

And the question is to whether you can get class, plaintiff class and the defendant class relief.

We might have gotten an injunction in this instant case.

Thurgood Marshall:

Was there anything in the Illinois Law that says you could not?

Fred L. Lieb:

No.

The answer is no.

The answer is no, Your Honor

Thurgood Marshall:

So, there is a possibility you could?

Fred L. Lieb:

That’s right.

Fred L. Lieb:

We could have gone into State Court in a separate proceeding and file the 1983 Act.

Appellees submit that three decisions of these Court are clear authority for affirming the District Court’s decision to proceed to the merits of this case.

Those decisions are Lynch versus Household Finance, Fuentes versus Shevin, and Gerstein versus Pugh.

Lynch and Fuentes’ concerned summary credit or remedies almost identical to the Illinois Attachment Act under review.

That the Lynch case concerned prejudgment garnishment and in effect this case is a garnishment, since the property was held in the hands of a third party.

And I might add, that Lynch was also a garnishment of a credit in to that account.

In Lynch and in Fuentes, the Court found the proceeding the prejudgment seizure not to be a proceeding in State Court.

In Lynch, the Court considered the question of applicability of the Injunction Act and in Fuentes the Court directly considered the question as to whether Younger was a part to this proceeding.

And I’d like to quote from Fuentes because I believe this quote is directly—

Byron R. White:

But in Fuentes, was there an available and immediate hearing on the attachment?

Fred L. Lieb:

In Fuentes, there would have been an eventual hearing on the–

Byron R. White:

Eventual.

But you seem to indicate to them under these proceedings, you could have gone right into Court and challenged the attachment including any allegations about the underlying debt?

Fred L. Lieb:

Well, the difference — yes, under Section 26, we could have.

Yes, under Section 26 we could have.

However, the statute does not provide for an immediate post seizure hearing.

It says, “You can answer the affidavit by filing a counter affidavit and there shall be a trial there on.”

Byron R. White:

That is separate though from the trail on the merits.

Fred L. Lieb:

But you see an attachment is different from the replevin where the under — in a replevin the question of possession of pendente lite is almost identical to the question of ultimate right to possession.

William H. Rehnquist:

What sort of a calendar delay are you talking about the Circuit Court of Cook County with that kind of mini trial.

Do you know or do you not know of?

Fred L. Lieb:

Well, the way the procedure works is this.

The Writ of Attachment which is served upon the debtor indicates at the bottom that hearings on attachment will be disposed on the return date.

Potter Stewart:

That’s from 10 to 60 days.

Fred L. Lieb:

After the date of the writ.

In this instant case, we did appear on the return date and we asked for a hearing and we were denied a hearing and we were told that these cases are routinely heard 30 days later.

So, there could be a 90-day period before you have the opportunity for that hearing.

William H. Rehnquist:

Well, doesn’t that suggests that perhaps the class of sheriffs of a 102 counties in Illinois may not have been a little broad because you wouldn’t suggests there’s that the same delay and everyone of the 101 guys besides Cook County, wouldn’t you?

Fred L. Lieb:

The delay is possible under the statute.

There’s no right to move for an earlier hearing.

Fred L. Lieb:

So, that the statute is unconstitutional on its face since there was possibility for a delay of that long or greater.

The Act doesn’t even say you have to have a hearing under return date.

The Act just says, there shall be a trial thereon.

William H. Rehnquist:

Are you saying a statute is unconstitutional on its face if a unconstitutional delay is possible under its terms?

Fred L. Lieb:

Well, this has to be seen in terms of the Mitchell decision where the Court found that one of the saving aspects of the Louisiana prejudgment sequestration statute, was that there was an expressed provision for an immediate post seizure hearing.

And what we are saying is the Illinois Attachment Act does not have an expression for its provision for an immediate post seizure.

William H. Rehnquist:

You mean if this doesn’t have the word immediate, it is not a provision for a hearing?

Fred L. Lieb:

Eventually, as in Fuentes.

Byron R. White:

Eventually, it doesn’t say eventually, it says he can file a motion.

And you’re just saying it might be later but it might be sooner.

Fred L. Lieb:

It is not about a motion to quash would be for a defect in the writ.

If it wasn’t properly pleaded under the Act

William H. Rehnquist:

You can answer.

Fred L. Lieb:

And the creditor–the creditor can amend the writ and continue the attachment.

The hearing is provided for only in Section 26 which says, “Eventually, you are entitled to a trial on the attachment issue.”

It doesn’t say when.

Byron R. White:

That’s on Section 27.

Section 27, I’m sorry.

Doesn’t the statute, at least the District Court said that the statute makes it.

But it’s within the power of the creditor to defer the hearing for at least 60 days.

Fred L. Lieb:

That’s right.

Potter Stewart:

Because under the statute, the return that day, he must make no less than 10 and no more than 60 days.

So, the hearing is not going to be before return day and he could defer that–

Fred L. Lieb:

That’s correct.

Potter Stewart:

–for 60 days.

Fred L. Lieb:

It’s up to the discretion of the Court and I would add, anytime that the debtor comes in and asks for earlier hearing, the creditor could have got to that on the grounds that he’s not prepared and he would ordinarily have the right at that later hearing.

Warren E. Burger:

On what date did you begin the action in the Federal District Court approximately?

Fred L. Lieb:

I believe that was December 3, 1974.

Warren E. Burger:

1974.

That you couldn’t have got this state proceeding move along before the lapse of two years and now two months.

Warren E. Burger:

Almost two months.

Fred L. Lieb:

Well, we get — first of all, we got the District Court decision a year later.

We’re talking now about an appeal to this Court which has taken further time.

Warren E. Burger:

It’s now 25 months passed–

Fred L. Lieb:

First of all, Your Honor.

Warren E. Burger:

–since you could have sought some relief within 60 days.

Fred L. Lieb:

Well, we got relief in the District Court.

We moved for a temporary retraining order and that was not decided but it was settled so that we did get half of the funds.

The Due Process issue was briefed and we would’ve gotten the decision in June but during this time, the Huffman decision came down and we are asked to re-brief that issue.

Now, that is only something that would happen once if this Court would resolve that issue in our favor, that issue would not come up again.

Potter Stewart:

Do you think that if the District Court had abstained in this case not necessarily under any command of the doctrine of Younger against Harris but it just abstained to allow the Illinois Courts to construe their statute, do you think it’s quite possible, at least arguably possible that the Illinois Courts having read the Mitchell against Grant case would have said that Section 27 requires a prompt hearing.

At least as prompt as it was accorded in Mitchell?

Fred L. Lieb:

I think that would be rewriting the statute, Your Honor.

I think that the–

Potter Stewart:

Well, it doesn’t—that’ not contrary to the statute.

Fred L. Lieb:

Well, that has to be read in pari materia with the return date provision.

That the return date can be set anywhere from 10 to 60 days.

And the common understanding of the return date is when–

Potter Stewart:

That hearing cannot be before the return.

Fred L. Lieb:

That’s right.

And I’d like to add too on this point that these procedural protections have to be seen working together, not separately.

A major defect in this case as we have pointed out is the lack of the requirement to plead facts in the affidavit which would support the grounds for the attachment and the requirement of having to be up here before a judge to establish with these factual grounds indeed.

So, even if there were an eventual hearing, even if the right to a move for a hearing, the initial seizure does not have adequate safeguards to protect the debtor from a constitutional deprivation of his property.

On that point of the wrongful–possibility of a wrongful deprivation, I would like to turn to a point raised by the appellants that is that they had a meritorious claim here and that they were justified in the attachment.

Now, it is not the role of this Court to determine that issue.

I think that an examination of what really happened points out the great possibility in this case of a wrongful attachment.

The affidavit–the papers filed by the appellants in the Federal District Court–

Thurgood Marshall:

Mr. Lieb, before you get too far in —

Fred L. Lieb:

Yes, sir.

Thurgood Marshall:

You could litigate that in the State Courts.

Fred L. Lieb:

The merits of the State Court plan.

Thurgood Marshall:

Yes.

Fred L. Lieb:

Certainly, and we were well prepared to litigate that in the State Courts and nothing in the Federal District Court injunction prevented any of the parties from litigating that in the State Courts.

Now, the affidavits that the appellants have referred to actually established that there was no grounds for fraud.

Unfortunately, in their printing of the appendix the affidavit which appears on page 52, there is an insert, an attachment, regarding how much money was in the account at the time the alleged fraud took place.

That does appear in the record at item 5.

Now, their affidavit in the case of Mr. Hernandez applied for public assistance, March 24, 1972.

The itemized statement of his account indicates that on that date he had $55.00 in his credit union account.

Now under Illinois Law, fraud cannot be alleged in a conclusory fashion, except in the Illinois Attachment Act.

When you file a compliant for fraud, you have to allege specific factual allegations.

You have to allege misrepresentation of a specific fact, scienter intent to deceive, materiality of the allegation, reliance and damages.

If the attachment creditor had been required to allege those specific facts and to present that to a judge or any other officer who knows what the law is in Illinois, this attachment would never have been issued because a person who applies for public aid can have more than $55.00 in assets at the time he applies.

So that, if they had alleged the specific allegation that he said he didn’t have anything and he really has $55.00.

They couldn’t allege materiality because he would have gotten the money anyway.

The record also shows that Mrs. Hernandez didn’t even have a credit union account at that time and furthermore that she wasn’t the person who applied to public aid.

Therefore, she made no misrepresentations.

So therefore, if the specific facts would have had been plead in the State Court to a judge based on their own evidence in the record there wouldn’t have been an attachment.

Yet, because of the fact that you cannot get an attachment by filing an affidavit with conclusory allegation of fraud presented to a Court clerk, who really stamps that affidavit and sends summarily onto the sheriff, they were able to deprive these persons and all other persons–and all other creditors are able to deprive all of the persons similarly situated of their property without due process of law.

Thurgood Marshall:

Is that in the record that this was done ministerially by some officials in Illinois?

Fred L. Lieb:

Yes, Your Honor.

It is.

Thurgood Marshall:

Who knows that?

I mean, who testified to that?

Fred L. Lieb:

The statements where made in our allegations in the compliant which were not denied.

Thurgood Marshall:

Alright.

Is there anything else in the record?

Is there positive testimony by a live witness?

Fred L. Lieb:

There was no testimony.

This was all handled on affidavits and quash–

Thurgood Marshall:

Is there an affidavit that says that?

Fred L. Lieb:

No.

Thurgood Marshall:

But why are you making the statement as a fact?

Fred L. Lieb:

I don’t believe there’s any dispute as to that fact.

I believe that all attorneys who practice in Illinois–

Thurgood Marshall:

Is it admitted by the State?

Fred L. Lieb:

We allege that in our compliant that it was not denied.

Thurgood Marshall:

But the State said that you cleared it before a judge, you presented in affidavit.

Is that not what the State is arguing?

Fred L. Lieb:

Only in tort cases and that’s —

Thurgood Marshall:

You mean argue that?

Fred L. Lieb:

Yes.

Only in tort cases and that’s —

Thurgood Marshall:

When do you say that’s not true?

Fred L. Lieb:

In contract cases that’s presented to a Court Clerk in —

Thurgood Marshall:

Who would we believe, you or the State?

Fred L. Lieb:

I believe we’re both making the same allegation here.

Thurgood Marshall:

Oh.

Fred L. Lieb:

We agree on this.

Potter Stewart:

This was decided on a motion to dismiss by the defendants and on your motion for summary judgment.

Fred L. Lieb:

Summary judgment.

Potter Stewart:

The motion to dismiss admits all the pleading, well pleaded allegations in the compliant.

Fred L. Lieb:

That’s right.

Potter Stewart:

Mr. Lieb, I understand from what you’ve said that you think there was no probable cause for the filing of this attachment.

Fred L. Lieb:

That’s correct, Your Honor.

Potter Stewart:

Do you agree with the Attorney General of Illinois that a tort action lies against the attachment creditor who files an attachment without probable cause?

Fred L. Lieb:

That is correct under the statutes.

Potter Stewart:

And entitled also to punitive damages.

Fred L. Lieb:

That’s true.

Potter Stewart:

Have you filed any such suit?

Fred L. Lieb:

No, we haven’t.

Fred L. Lieb:

First of all, the problem is with the State and in order to sue the State, you would have to go onto the Court of claims and it’s a very difficult procedure with no right of appeal and the initial problem we confronted was the constitutional problem for the appellees and the members of the class.

So therefore, we try to get that resolved first.

There is a damage claim pending in the Federal Courts right now under this 1983 action.

And that will be reconsidered, and we intend to pursue that.

Potter Stewart:

That’s before Judge Kirkland?

Fred L. Lieb:

That’s right.

William H. Rehnquist:

I’m having some difficulty keeping the various state and federal forums of state.

In response to question Justice Stewart where you answered that something was disposed off on a motion to dismiss.

Which piece of litigation is that?

Fred L. Lieb:

Yes, sir.

The Federal Court sued this case.

William H. Rehnquist:

You mean it granted your injunction on a motion to dismiss?

Fred L. Lieb:

Cross motion.

Motion to dismiss and a cross motion for summary judgment.

William H. Rehnquist:

So, it resolved all disputed facts in favor of the appellants?

Fred L. Lieb:

That’s correct.

Potter Stewart:

Right.

Fred L. Lieb:

Now, I’d like to go back to the Huffman issue and point out that Gerstein versus Pugh case I believe, disposes off this issue in our favor.

That in that case, unanimous Court concluded that Younger versus Harris was not a bar to a federal injunction against pretrial detention of arrestees charged by a prosecutor on information without a preliminary hearing.

I would like to quote briefly from that statute because it bears directly on this case.

The Court noted the injunction was not directed at the state prosecution as such but only at the legality of pretrial detention without a judicial hearing — an issue that could not be raised in defense of the criminal prosecution.

The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits.

In this case, District Court injunction was not directed at the State Court proceedings as such.

That is at the merits of the underlying claim. But only at the legality of pretrial detention of the property which had been carried out without Due Process of law.T

hat issue could not be raised as a defense to the main claim of the creditor.

And finally and most importantly, for purposes of Younger, the resolution of the constitutional issue in the Federal Court did not prejudice in any way, the litigation of the conduct of the merits in the State Court.

I believe in light of the Gerstein case and the Fuentes and Lynch case which I mentioned previously that the District Court’s decision to proceed to the merits of the constitutional claim and to enjoin the county officials from carrying out the provisions of the Illinois Attachment Act was clearly correct.

Therefore, we respectfully ask this Court to affirm the judgment below.

Potter Stewart:

Before you sit down Mr. Lieb, I want to be sure I understand the point you made at the outset of your argument.

In this case, every clerk of every judicial Circuit Court in Illinois and every county in Illinois has been enjoined ever in the future under a permanent injunction.

Potter Stewart:

From ever issuing a writ of attachment under this law and every sheriff in every county of Illinois has been similarly permanently enjoined from ever executing any such writ.

It is your point as I get that that’s why it is, that’s the way it’s going to be from now on and that no Court can has–any power to correct that.

Even if it’s terribly wrong, the judgment of some Court or another, is that it?

Fred L. Lieb:

Yes, Your Honor.

Potter Stewart:

I said, I thought it was.

Fred L. Lieb:

Yes.

Parties must properly appeal.

Potter Stewart:

But there was no appeal–notice of appeal was filed here but it was never followed through about.

Fred L. Lieb:

That’s correct, Your Honor.

Byron R. White:

Do you think these appellants are qualified or have standing the raise the abstention for you?

Fred L. Lieb:

Against them but not against the other parties.

Byron R. White:

Yes, I know but the Court can only can and can it, both abstain and not abstain?

And what if it were held that Courts should abstain, as these appellants say it should?

Fred L. Lieb:

I believe the only decision the Court could reach is that the District Court should not have reached the question of the injunction against the appellants.

There may have been other considerations and as I submit there were.

Byron R. White:

But the Court should have abstained it means that should have not proceeded as judgment.

An injunction, yes.

Kind of a fight for getting an abstention.

It should not have considered the merits of your lawsuit if it should have abstained.

Fred L. Lieb:

I believe that under Younger, one can consider the various circumstances concerning each one of the appellants or each one of the defendants in Federal Court and since the sheriffs and clerks were not parties to the State Court proceedings, there would be different considerations going to whether or not the injunction against them was proper.

William H. Rehnquist:

But if you enjoin the sheriff and the clerk but you say, you never shouldn’t have gotten into the case of the plaintiff, in effect the plaintiff doesn’t get any benefit from the abstention because what he is trying to utilize is a State Court procedure that your longing to be used against somebody else.

Fred L. Lieb:

Well, I believe the appellant could’ve rectified that problem by number one, appealing a class so that it would have been– the issue would have been limited to – had they succeeded in overturning the class then the sole question would be the injunction against them in favor of this particular plaintiff.

And I believe they could have presented to this Court the precise issue of whether or not the injunction was proper against the appellants.

Thurgood Marshall:

I assume you had objected of they getting the remand and so this could be straightened out.

He would?

I assume you objected.

Fred L. Lieb:

Absolutely Your Honor.

It’s not a matter that needs to be straightened out by the District Court.

It’s a matter that the party should have straightened out before the appeal.

John Paul Stevens:

Mr. Lieb, did any defendant ever file in appearance or a pleading on behalf of the defendant class as a group?

John Paul Stevens:

They all purport to represent the defendant class?

Fred L. Lieb:

Finley and Elrod filed an appearance when they were first served.

John Paul Stevens:

For themselves or for the class?

Fred L. Lieb:

This was before the class was certified.

John Paul Stevens:

Before it was certified.

Fred L. Lieb:

Right.

We then move for certification of the classes.

The appellants Trainor and O’Malley filed a memorandum in opposition to the class to the certification of the plaintiff class.

They never even raised the question of the defendant class.

John Paul Stevens:

Does the record show any notice having gone out to the non-appearing members of the defendant class giving them an opportunity to opt in or out or anything like that?

Fred L. Lieb:

No, this is a 23B-2 Class.

So, I believe under the federal rules there’s no necessity—

Harry A. Blackmun:

There’s none.

But does the record show whether the members of the class who were not individually before the Court ever received the actual notice of any of the proceedings?

Fred L. Lieb:

The record does not show that.

However, it is my understanding that after the judgment was issued, notices were sent out to the various sheriffs and clerks informing–

John Paul Stevens:

Pursuant to Court order or there is something —

Fred L. Lieb:

This was an agreement between the parties.

Thank you.

Warren E. Burger:

Mr. Dienner, do you have anything further?

You have about two minutes.

John Dienner III:

Yes, if it please the Court, Mr. Chief Justice.

Two quick points: first as to our appeal, as representatives of the defendant classes, defendant Finley and Elrod.

We filed our notice of appeal that is the manner in which an appeal is taken pursuant to Supreme Court Rule 10-1, pursuant to 10-4 all parties below are parties before this Court, Rule 15-3 related cases from the same Court can file a single jurisdictional statement.

In this case, all issues as to all defendants, State defendants, County defendants, and Class defendants were raised in the single jurisdictional statement.

In Rule 46 of the Supreme Court also permissive course join appeals where as parties who were jointly severably interested, may join in an appeal.

In the Court below, we filed the motion to adopt all pleadings that have been by the state defendants and it will be filed by the state defendants as I point out all issues as to all defendants were properly preserved in the jurisdictional statement.

We designated ourselves as appellants in the designation of portions of the record and also in the jurisdictional statement.

We filed notice of appeal, we filed briefs and we filed appearance in the Supreme Court.

We assert that on the Court’s own rules, there is no question of the fact that the representatives of the class and the class themselves are before this Court and have properly preserved all issues raised below.

Byron R. White:

I think, they should have the appellee, — the other people on your side should have filed the brief as appellants.

John Dienner III:

We filed a brief.

We entitled it and designated as the brief of appellees in support of the position of the appellants.

But I think that was erroneous caption but as by no means jurisdictional.

No.

John Dienner III:

We are appellants, we assert.

Byron R. White:

So, you would like to change that designation?

John Dienner III:

We would indeed.

We assert that we are unequivocally appellants in this position, we’re mislead initially by an interpretation of Supreme Court Rule 10-4 as requiring that result further thought in reflection on the matter convinces us otherwise.

One other thing that this is —

Warren E. Burger:

Make it very brief.

John Dienner III:

Ultimate importance in this case under the Civil Practice Act, the attachment debtors have an unequivocal right under the Civil Practice Act of Illinois on two days notice to motion up, a motion to quash, dismiss, file a counter claim for summary judgment.

Warren E. Burger:

You’re thinking of 27, Rule 27 now?

John Dienner III:

Under Rule 26, adopting the Civil Practice Act into the Attachment Act.

They had a possibility of filing motion to dismiss, summary judgment, declaratory relief, third party action, I could site you the sections if Your Honors were interested.

One last matter and that’s the–you recall that the plaintiffs are in form of purpose before this Court.

Thereby, rendering nugatory and much benefited proceeding with the attachment action in the State Court when they in fact are apparently judgment proof.

Thereby, giving explanation for the dismissal of that case once we were enjoined from attaching our assets.

I assert that they had various remedies under the Civil Practice Act and under the Illinois Supreme Court Rules.

On two days notice they could have been in Court presenting and preserving all of their constitutional issues.

Thank you, Your Honors.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.