O'SHEA v. LITTLETON
Legal provision: Article 3, Section 2, Paragraph 1: Case or Controversy Requirement
Argument of Robert J. O’rourke
Chief Justice Warren E. Burger: We’ll hear arguments next in 72-953, O’Shea against Littleton.
Mr. O’Rourke, you may proceed whenever you’re ready.
Mr. Robert J. O’rourke: Thank you Your Honor, may it please the Court.
This is a civil rights suit brought by plaintiff’s on behalf of an undefined class which they were not members charging that the defendants Michael O’Shea that the Magistrate of the Circuit Court of Alexander County, Illinois and Dorothy Spomer as an Associate Judge for Alexander County, Illinois, systematically discriminated against members of there class on the basis of race.
This action was brought under the Civil Rights Act Title 42, Sections 1981, 1982, 1983, and 1985 and alleged interference with the plaintiffs’ First, Sixth, Eighth, Thirteenth, and Fourteenth Amendments rights.
The plaintiffs sought mandatory injunctive relief against O’Shea and Spomer in their official capacity as members of the Illinois Judiciary.
The amended complaint in the First, Second, Third and Fourth claims for relief set out 11 specific acts of alleged discriminatory conduct on the part of the defendants’ State’s Attorney Berbling and Investigator Shepherd.
The one claim for relief which is the Sixth claim which pertains to the judges comprises generally and conclusory allegations of patterns and practices of discriminatory conduct on the part of these defendant judges.
Chief Justice Warren E. Burger: Mr. O’Rourke, just to help me at least to keep this cast of characters --
Mr. Robert J. O’rourke: Yes, sir.
Chief Justice Warren E. Burger: -- which is rather extensive here, clearly in mind.
The present prosecutor against whom a part of this injunctive relief is directed was not in office at the time the --
Mr. Robert J. O’rourke: No, sir he was not.
Chief Justice Warren E. Burger: -- the case began and Berbling, the man who allegedly committed all these acts is out of office, is that correct?
Mr. Robert J. O’rourke: That’s correct Your Honor.
Spomer is -- State’s Attorney Spomer and is not to be confused with the judge whose also by the name of Spomer, was just elected the State’s Attorney of Alexander County and that's substituted in this clause.
Because of --
Justice Potter Stewart: Are they related, brothers or father and son or?
Mr. Robert J. O’rourke: I believe that they are husband and wife, Your Honor.
The alleged conduct against the judges includes the following of averments.
Chief Justice Warren E. Burger: May I interrupt you once more?
Mr. Robert J. O’rourke: Certainly.
Chief Justice Warren E. Burger: Is it clear from your point of view at least that none of the allegations against Spomer, the present District Attorney, that are no allegations of misconduct against him.
Mr. Robert J. O’rourke: No, sir.
There are -- it’s the contention --
Chief Justice Warren E. Burger: It's that predecessor and no one else?
Mr. Robert J. O’rourke: That’s correct and the contention is that the office will in the future in somewhat discriminate.
Chief Justice Warren E. Burger: So that this is injunctive relief running against an office rather than a person is?
Mr. Robert J. O’rourke: That’s correct, Your Honor.
Justice William J. Brennan: While in the judge’s case, Mrs. Spomer, Judge Spomer.
Mr. Robert J. O’rourke: Yes.
Justice William J. Brennan: She -- the allegations run against her, did they not?
Mr. Robert J. O’rourke: Yes, they do.
Justice William J. Brennan: And also as to Magistrate O’Shea?
Mr. Robert J. O’rourke: Yes, sir.
Justice William J. Brennan: So in that case at least the injunction runs against people based on their alleged misconduct?
Mr. Robert J. O’rourke: Well, that’s a contention that we don’t agree with, Your Honor.
That is our contention, however, we do not agree with that.
Justice William J. Brennan: Right.
Justice Harry A. Blackmun: The Chief Justice’s inquiry relates to the next case rather than to this one?
Mr. Robert J. O’rourke: That’s correct, Justice.
The alleged conduct against the judges includes the following allegations: (a) the judges involved set bond in criminal cases by following an unofficial bond schedule without regard to the facts of the case or the circumstances of the individual defendant; (b) that they sentence black persons to longer criminal terms and imposed harsher conditions than they do with respect to white persons who are charged with the same or equivalent criminal conduct; and (c) that they require plaintiffs and members of the class to play for a trial by jury when charged with violations of city ordinances which carry fines and possible jail penalties if the fine cannot be paid.
Though the amended complaint alleges in paragraph 36 (b) that O’Shea and Spomer sentenced black persons to longer terms and imposed harsher conditions than for white persons similarly charged, the complaint does not mention a single instance of such conduct in the past nor does it charge that any sentence were not within the judge’s lawful discretion.
Indeed, no plaintiff has alleged to have been among those charged, bailed or sentenced.
Furthermore, no plaintiff has alleged to be threatened with the possibility of requiring bail or being sentenced.
The plaintiffs do not set forth any fact or allege a single instance of improper bail procedure or excessive sentence in the amended complaint.
Moreover, no other allegation of plaintiffs’ complaint evidences or supports the conclusory allegations in the sixth claim for relief against the defendant judges.
The plaintiffs additionally, do not indicate any request for relief, either by habeas corpus or by appellate review which has been made by any member of there class or by anyone else for past judicial discrimination by either of the defendant judges.
The allegations regarding the setting of bonds and the payment for jury trails, do not state the respondents are treated differently than any other persons.
It is merely averred in general terms that the petitioners follow an unofficial bond schedule in criminal cases.
No charge is made as has been done with respect to sentencing practices that there exists discrimination in treatment of white and black persons.
The sole issue was drawn by the pleadings relates only to the allegation of the judges’ discretionary role in imposing sentence on a lawfully convicted defendant.
The complaint is completely barren of any factual averment involving the defendant judges and contains only one allegation of discrimination by the judges and that is relative to the sentencing practice and this allegation is alleged only on information and belief.
The District Court dismissed the complaints on grounds: One, that it lack jurisdiction to entertain a clause seeking to have a Federal Court substitute its judgment for the judgment of the state judiciary; And two, that no regular performance of judicial officers’ duties, judicial immunity, barred relief in an action under the Civil Rights Act.
The Court of Appeals for the Seventh Circuit in a two-to-one decision reversed the judgment of the District Court and ruled that a Federal Court may entertain actions requiring federal supervision and regulation by mandatory injunction over the discretion which state court judges may lawfully exercise within the limits of authority granted to them by law.
The Court of Appeals held, one, that the complaint stated a clause of action against these practitioners under the Civil Rights Act Sections 1891, 1981, excuse me, 1983 and perhaps under 1982; And two, the doctrine of judicial immunity did not extend to the defendant judges in the light of the legislative history of the Civil Rights Act of 1866 and the Ku Klux Klan Act of 1871 where injunctive relief is sought.
The Seventh Circuit recognizing that this holding created a case of first impression volunteered guidelines which the Federal District Court might follow in imposing upon the state judges a system of reporting their conduct and the disposition of their cases in the District Court.
We submit that the decision of the Seventh Circuit Court of Appeals would permit the intimidation of state court judges and would deprive the state of an independent and intellectually free judicial system.
It is our contention that the common law doctrine of providing civil judicial meaning for judicial acts was not abolished by the congressional civil rights amendments, regardless of whether the damages are mandatory or mandatory damages are sought.
This Court established before in the classic case of Bradley versus Fisher which we cite very extensively in our brief, that the purpose of judicial immunity is to assure the independents of the judicial judgment by precluding personal jeopardy of the judges who might err.
We submit that the sanctions of the contempt are as dangerous to judicial independents as a risk of a suit for money damages.
One cannot visualize a more dramatic example of judicial subordination on the spectacle of having a state judge brought before a Federal District Court on the claim of injunction and put to the ignominity of having to sit on the witness stand, defend the integrity of his character and his actions and be subjected on cross-examination to the verbal onslaught of a class of people as in this particular instance who had never been before that particular judge at any time.
Justice William H. Rehnquist: Mr. O’Rourke.
Mr. Robert J. O’rourke: Yes, Mr. Justice.
Justice William H. Rehnquist: As I understand the argument, you’re making out -- you go beyond really a position that Judge Dillon took in dissent.
As I understood his dissent, he would not say categorically that you could never have an injunction under 1983 against a judicial officer, but that in this particular type of situation you couldn’t have it, but you say, you can never have it?
Mr. Robert J. O’rourke: No, I don’t say that if the Court please, I don’t mean to lead that impression.
Judge Dillon did review the cases where injunctions have been granted and pointed out that injunctions had been granted for the -- or prohibitory type of injunction rather than a mandatory injunction which prohibits a court from and in these particular instances that they cite which were ministerial acts rather than judicial acts requiring judicial discretion.
Justice William H. Rehnquist: So that there you wouldn’t have the overhanging threat of a contempt citation in your --
Mr. Robert J. O’rourke: No, sir we would not.
It would be a prohibitive act and not the constant supervision where the judge could be called in to be subjected to cross-examination.
While on that federal standards state judge could compelled to recall his past decisions and the reasoning behind those decisions. For the instance like the present case, the judge may not only be on trial with respect to an individual case, but for patterns and practices which comprised within their purview many decisions extending through a number of years.
The effect of decision of the Seventh Circuit Court will be to chill judicial discretion in disposition of the justice in the State of Illinois.
In effect then, a state judge will have to look over his shoulder each time he exercises his judicial discretion for fear that by some nebulous standard of statistical analysis, he has not meted out justice in accordance with the Federal District judge's personal formula.
In addition, a state judge would be more likely to quantify or balance sentences or amounts of bail not in accordance with what the circumstances are before him or what the circumstances would have warranted, but out of the nagging fear that leniency or strictness irrespective of whether deserved over a period of time would be interpreted as deliberate discriminatory conduct.
Subjecting a state judge to federal review each time a dissatisfied, but lawfully committed defendant alleges class discrimination which would require federal judges to conduct an evidentiary hearing to determine whether a pattern of discrimination existed.
A judge operating under an order not to discriminate in fixing bonds and sentences would find himself confronted with the possibility of a federal contempt citation and the necessity to defend his motivation in each case.
The admonishment of this Court in the City of Greenwood versus Peacock would apply to this case equally as well.
But the burden of the federal system would be in the least cumbersome and severe.
The effect on the state system would be to create in the press of atmosphere of federal supervision and perhaps render it impotent.
The action countenance by the court below would result in the Federal Court sitting not only in review of state discretionary decisions, but also as the appellate tribunal passing ultimate judgment on state criminal proceedings.
We hold this -- the action sanction here is civil that requires the review of past criminal decisions.
In addition, the likelihood of a great similar class actions would be taken to the District Courts from state criminal actions on the ground that the judge will or has a propensity to discriminate against a particular group.
The result would be to exchange state remedies in favor of District Court review.
Extending the possibility of sanction by this court below to its most absurd result, a state court judge could literally spend so much time defending his actions in frivolous suits in the federal bar, that he could not perform his state judicial duties.
Again, an admonishment from the City of Peacock -- or City of Greenwood versus Peacock case.
It must be noted that the decision of the Courts of Appeal for the Seventh Circuit does not limit its holding to lower state court judges.
Indeed, the application of the Seventh Circuit Court’s decision renders all state judges subject to injunctive relief should some class allege that they have engaged in patterns and practices which they feel violate their civil rights.
Therefore, this decision if it allowed to remain in effect could easily propel a rash of federal injunctive proceedings against state appellate Court based upon the naked allegation that the appellate justices or any combination of them engaged in patterns and practices of conduct inimical to the civil rights of the complaining class.
The unfitting bowl given to judicial immunity doctrine by the Seventh Circuit Court irrevocably alters the historic relationship that has existed between the courts of equity and the lower courts, between the Federal State -- Federal Courts and the state courts, and between the judge and those persons appearing before him.
The effect of permitting actions against the state judiciary going out of the exercise of lawful discretion would be too irreparably harm the administration of criminal justice at the state level.
We submit that no intellectually independent state judiciary could survive in an atmosphere of hostile litigants and the constant federal supervision.
We believe that the question of judicial immunity had been of question of whether judicial immunity had been abolished by the Civil Rights Act was answered by this Court in Pierson versus Ray which we cite in our brief that this Court held that the common law immunity of judges from civil action for acts committed within their judicial discretion was so subtle a principle as to be accepted from the provisions of Section 1983.
Furthermore, this Court in Pierson considered the same legislative history which the court below held to be so incisive and found that history a warning.
So much so, that the case states that gives no clear indication that Congress meant to abolish wholesale, all common law immunities.
Mr. Chief Justice Warren expressed the feelings of eight members of that court when he wrote.
“We presume that Congress would have specifically so provide had it wished to abolish this doctrine.”
Nothing in the explicit language of Pierson affords a basis to limit that holding to money damages especially in the light of the Chief Justice compelling language which draws no distinction between monetary and equable relief.
He said it at page 554, “It is a judges’ duty to decide all cases within his jurisdiction which are brought before him, including controversial cases which arouse the most intense feelings in litigants.
His errors maybe corrected on appeal, but he should not have to feel that unsatisfied litigants may hound him with litigation charging him with malice or corruption.
Imposing such a burden on judges would contribute not too principle and fearless decision making but to intimidation.”
The Court of Appeals for the Seventh Circuit Court draws the narrow distinction that while judges are immune from damage suits, they maybe subjected to a mandatory injunction if ever anyone should charge them in the Federal Courts with class discrimination.
The defendant judges submit that no distinction can logically be made as to judicial immunity between damages and an injunctive order for a judge’s lawful exercise of his discretion.
The decision of the two-man majority in the court below is well-written.
But we submit at a careful reading of the decisions cited by the Seventh Circuit wherein injunctive relief has been granted, would reveal that these cases either deal with ministerial duties exercised by a judicial office or the cases do not discuss the doctrine of judicial immunity or ex parte proceedings in which the accused judge didn’t participate are based upon the misapprehension of other decisions utilized as precedents.
Justice Byron R. White: What about the Federal Court adjoining a state criminal proceeding in a 1983 action -- 1983 action in Federal Court alleging that the state criminal proceeding deprives the defendant of some constitutional right, alleging harassment or a false charge or something like that, Dombrowski type of situation, and the Federal Court holding within the wholly consistently with the Younger, enjoins the state criminal prosecution.
Now, you say that the prosecution can be enjoined, but not the judge?
Mr. Robert J. O’rourke: Yes, there is a difference if the Court please.
Justice Byron R. White: He can just work on the parties?
Mr. Robert J. O’rourke: Well, there, there is the prohibitory injunction again and here the injunction has come down from the Seventh Circuit as a mandatory type of thing.
Justice Byron R. White: Well, is there something in -- nothing in Pierson that says that prohibitory injunction can be entered either?
Mr. Robert J. O’rourke: No, sir.
Not in Pierson.
Justice Byron R. White: Well, how do you distinguish that?
Mr. Robert J. O’rourke: It has been distinguished in the various courts but we indicate that the essence of the rule of judicial immunity is the freedom of judge from the threat of individual punishment in the event that a different Court should decide that its judgment wasn’t correct in the first place.
And we maintain it’s unrelated to the nature of the suit whether it’s a civil right action or whether it’s a individual action or it’s an action brought by an individual or by a class.
Justice William H. Rehnquist: I suppose if a state Court judge is enjoined along the line of Justice White’s question from carrying out of certain prosecution even though, he may be enjoin by name there's no doubt as to what is duty as under the terms of that injunction.
He must simply desist unless it’s reversed by the higher court.
Whereas what you are complaining about here, I take it, is the constant oversight of the discretion and in cases unnamed.
Mr. Robert J. O’rourke: Yes, that’s correct Your Honor.
Justice Byron R. White: Well, it doesn’t sound much like an immunity argument.
It sounds like a scope of the remedy argument?
Mr. Robert J. O’rourke: Well, we maintained there is a scope of limited argument here too.
Justice Byron R. White: Which you are now making it sounds to me like.
Mr. Robert J. O’rourke: Both of them, if the Court please.
We are arguing judicial immunity, we are also argued in scope of the remedy.
We also make the additional argument that the Constitution of the United States --
Justice Byron R. White: Now, do you concede that the judge is not a immune from a --
Mr. Robert J. O’rourke: A prohibitory injunction?
Justice Byron R. White: Yes.
Mr. Robert J. O’rourke: Which prohibits him from a doing a certain acts, yes certainly.
Justice Byron R. White: Except to identify but you concede that?
Mr. Robert J. O’rourke: I would concede that, yes sir.
To not to handle certain case or not performing --
Justice Byron R. White: Or do concede there’s a case of --
Mr. Robert J. O’rourke: Not the former ministerial duty.
Justice Byron R. White: You can see there is a case -- constitutional case of controversy alleged in these actions?
Mr. Robert J. O’rourke: Yes, sir.
I would say that in the scope of the order of the Seventh Circuit which requires a constant supervision of the --
Justice Byron R. White: But how about the plaintiffs in the case?
Did they allege a some concrete case of controversy that Federal Court should have entertained?
Mr. Robert J. O’rourke: Not as far as the defendant judges are concerned.
Justice Byron R. White: And why it is –
Justice Thurgood Marshall: Even if all the facts were true?
Mr. Robert J. O’rourke: Even if all the facts were true, yes sir.
Chief Justice Warren E. Burger: And how could --
Justice Thurgood Marshall: And what remedy would they have?
Mr. Robert J. O’rourke: The remedy is here if the Court please, there is no specific --
Justice Thurgood Marshall: Or I should say, what, if any?
Mr. Robert J. O’rourke: There is no specific allegation against either one of these judges as to a discriminatory act --
Justice Thurgood Marshall: But suppose it was?
Mr. Robert J. O’rourke: It’s merely conclusionary --
Justice Thurgood Marshall: Would your argument be the same?
Mr. Robert J. O’rourke: No, there are number of remedy --
Justice Thurgood Marshall: Suppose the allegations were that he sentenced eight people all involve for crap shooting in the same game that gave the four white as suspended sense, and gave the four Negroes five years.
Mr. Robert J. O’rourke: There is --
Justice Thurgood Marshall: Can you make the same argument?
Mr. Robert J. O’rourke: Yes sir because they --
Justice Thurgood Marshall: And that he did that everyday in a week?
Would you make the same argument?
Mr. Robert J. O’rourke: Yes sir, there would be --
Justice Byron R. White: What about, but you would at least insist that one of the Negroes who was -- who suffered from a discriminatory sentence be a plaintiff?
Mr. Robert J. O’rourke: Yes, --
Justice Byron R. White: You wouldn't any member of the public bringing the action?
Mr. Robert J. O’rourke: That’s correct.
Justice Byron R. White: And that’s -- and then here it’s just any members of public, isn’t it?
In the sense that none of these particular plaintiffs as ever suffered any kind of sentence are wrong from these judges?
Mr. Robert J. O’rourke: Yes, it’s correct Your Honor.
Justice Byron R. White: Well, how isn’t that you special argument in these cases?
Mr. Robert J. O’rourke: It would be, except that we wanted to get into the question of judicial immunity because we feel --
Justice Byron R. White: I know you wanted it, but we have a jurisdictional problem at the outset?
Mr. Robert J. O’rourke: Yes, sir.
If I can just get back to Justice Marshall’s question.
Justice Byron R. White: Well, I don’t want to get back to that yet.
I just wonder, do you concede there's a case of controversy or not or do you say there is not?
Mr. Robert J. O’rourke: I say there's not, Your Honor.
Justice Byron R. White: But if we disagree with you then you make your argument about that.
Mr. Robert J. O’rourke: Right.
There is also the -- to get back to Justice Marshall’s question there’s ample provision for a review in our appellate courts.
If the judge where to be as discriminatory as you point out there is also the question of the Illinois --
Justice Thurgood Marshall: Can you give me a citation of such a case?
Mr. Robert J. O’rourke: No, sir I don’t have --
Justice Thurgood Marshall: I’ve been looking for one a long time.
Mr. Robert J. O’rourke: I don’t have one.
Justice Thurgood Marshall: Alright.
Mr. Robert J. O’rourke: Also to get to the question of the -- Constitution of the United States provides an Article 4, Section 4 that the United States shall guarantee to every State, a Republican form of Government, essential to the concept of Republican form of Government is the state judiciary remain free to pass upon its own laws without fear of District Court’s surveillance.
Where a pattern emerges or is allowed to emerge that the state judicial officers can be summoned before a Federal District Court on the mere allegation that they engaged in the patterns and practices of conduct somehow inimical to the class then the obvious result would be the destruction of the state judiciary and thereby the Republican form of Government.
If the Court please, I’d like to reserve my remaining time for rebuttal.
Chief Justice Warren E. Burger: Very well Mr. O’Rourke.
Argument of Alan M. Wiseman
Mr. Alan M. Wiseman: Mr. Chief Justice and may it please the Court.
We do not bring this lawsuit frivolously.
We have made serious and grave charges here.
We are making those charges consistent with our responsibility under Rule 11 of the Federal Rules for Civil Procedure.
That rule requires that before an Attorney sign a pleading, he have -- he must have good grounds for it.
We have such grounds here.
There has been a fundamental breakdown in the administration of criminal justice in Cairo, Illinois.
What we are charging here is that these defendants engaged in a pattern and practice of discrimination on the basis of race against these plaintiffs and blacks similarly situated in Cairo, the plaintiffs in this lawsuit where the black citizens of Cairo.
We seek equitable relief only against these judges.
We do not seek damages.
We seek --
Justice Byron R. White: What is the -- of the main plaintiffs which one suffered from this alleged practices?
Mr. Alan M. Wiseman: Several of them have, Your Honor.
We did not specifically alleged which one, instead what we alleged was that we are seeking to enjoin the depravation of plaintiffs of their class rights, that was in paragraph one in a number of the paragraphs in our complaint.
We have indicated that the plaintiffs and others have been deprived of their rights.
We do not specifically list out the individuals but if we have to we could.
Justice Thurgood Marshall: And how were they deprived?
Mr. Alan M. Wiseman: They were deprived in the one, an unofficial bond schedule is used when the defendant is obliged.
Justice Thurgood Marshall: Well are any --
Justice Byron R. White: Is the main plaintiff not the defendant?
Mr. Alan M. Wiseman: Yes, Your Honor but we have not specifically named them in the complaint.
Justice Thurgood Marshall: Well, how can you rely on it?
Mr. Alan M. Wiseman: Because we have named in general in the allegation that the plaintiffs have individually been deprived of the rights that we further alleged.
Justice Thurgood Marshall: What did your class include?
Mr. Alan M. Wiseman: It includes, the named plaintiffs in the class are the black persons in Cairo who have been -- who were similarly situated in a -- who have been similarly deprived of the kinds of rights that we are alleging here.
Justice Thurgood Marshall: But what class is that, all of the Negroes?
Mr. Alan M. Wiseman: It would be a class -- it would be basically the black persons of Cairo.
Justice Thurgood Marshall: All of them?
Mr. Alan M. Wiseman: Yes.
All they actually -- well, the class is specified in our complaint as those who are similarly situated. Only those who are similarly been deprived of rights as the named plaintiffs.
Justice Thurgood Marshall: Well, where is the provision that the main plaintiffs were denied their rights?
Mr. Alan M. Wiseman: In paragraphs 1, we state that this is a civil action insofar as the judges are concerned for equitable relief.
Chief Justice Warren E. Burger: Page 2.
Mr. Alan M. Wiseman: Page 15 Your Honor.
To enjoin the deprivation --
Justice Thurgood Marshall: 15 of what?
Mr. Alan M. Wiseman: Paragraph 1 of the appendix.
Justice William H. Rehnquist: It's two appendix.
Justice Potter Stewart: The two appendices -- I was on -- we are now in the judges’ case and that appendix -- well, and these are two appendices?
Justice Thurgood Marshall: Yes, I think the one.
The class includes all those, is that the 1 (c)?
Mr. Alan M. Wiseman: Well, Your Honor in the paragraph 1 of the complaint which is on page 15, we indicate, we allege that the plaintiffs and members of their class have been deprived of certain rights.
In paragraph 3, we state under paragraph 3 (a), the plaintiffs are black citizens of the city of Cairo with two exceptions and we name the two exceptions.
In paragraph (b) we say, they bring this option as a class in action individually and on behalf of other similar situated.
Justice William J. Brennan: You have 19 named plaintiffs.
Are you suggesting at that is an allegation of each of the 19 was involved either in bonding business or sentencing or something?
Mr. Alan M. Wiseman: Your Honor, the lawsuit was originally filed against six defendants.
Justice William J. Brennan: I know, but the main plaintiffs are 19 in number.
Mr. Alan M. Wiseman: Yes, I understand.
I am getting to that point in that when we filed against six defendants and we named the number of plaintiffs that we named the number of plaintiffs that we have, some of the charges go to the State’s Attorney so that some of the plaintiffs named were only affected by the State’s Attorney’s conduct.
Other of the plaintiffs were only affected by the conduct of the judges.
Justice William J. Brennan: Each of the 19 was affected by the conduct of one or the other?
Mr. Alan M. Wiseman: Yes, Your Honor.
Justice William J. Brennan: Because involved in some criminal charge?
Mr. Alan M. Wiseman: Yes.
Justice William J. Brennan: Each of the 19?
Mr. Alan M. Wiseman: Either a criminal charge or in the case of the states attorney that he sought to have relief in the criminal courts which been denied.
Justice Thurgood Marshall: Where is that in his reply what you just said?
Mr. Alan M. Wiseman: Your Honor and the I would submit that we are intending by our allegation on page 15 of paragraph and --
Justice Thurgood Marshall: Well, what in there says that these people have been bailable or have been arrested on anything?
Mr. Alan M. Wiseman: We -- in paragraph 3 (c), which would encompass in the language of that paragraph the named plaintiffs as well.
We are saying who have on account of their race and because of there exercise of First Amendment right, having the past and continued to be subjected to the unconstitutional and selectively discriminatory enforcement in administration of criminal justice.
Later on in our complaint, we specify the kind of conduct we are referring to that the judges engage in that they on account of race deprived the plaintiffs --
Justice Thurgood Marshall: Where is it in this complaint that it says that anyone of these plaintiffs has ever been subjected to denial of bail?
Mr. Alan M. Wiseman: Paragraph 35 Your Honor of the complaint at page 29 I believe of the appendix we state, with respect to the judges that they have deprived and continue to deprive plaintiffs and members of their class of the rights to due process and then process and then in Fourteenth Amendment and then --
Justice Thurgood Marshall: Denial due process includes how many different things?
Mr. Alan M. Wiseman: But we are talking about --
Justice Thurgood Marshall: But mine was the denial of bail?
Mr. Alan M. Wiseman: Pardon me, Your Honor?
Justice Thurgood Marshall: Mine was, where do you say that any one of the main plaintiffs were denied bail because of his race?
Mr. Alan M. Wiseman: In paragraph 36, we are not referring to denied bail, Your Honor.
Justice Thurgood Marshall: Well you said so?
Mr. Alan M. Wiseman: What I meant --
Justice Thurgood Marshall: You said that each of these people had been denied bail or something else?
Mr. Alan M. Wiseman: No, they are discriminated in the setting of bail and that these judges were all --
Justice Thurgood Marshall: Well, where can say that any one of these the plaintiffs were discriminated against in the setting of bail?
Mr. Alan M. Wiseman: Paragraph 36 Your Honor “A” we say, in a preface to A that the judges have denied and continued to denied to plaintiffs and members of their class, the constitutional rights in the following ways and then “A” is our bail situation, where they -- the judges are following a non-official bond schedule that has been established to apply the blacks.
Justice Thurgood Marshall: Well, can you get it on the “B” and on the information and belief they were denied bail?
Mr. Alan M. Wiseman: Under “B” Your Honor refers to the sentences.
Justice Thurgood Marshall: Well, was that -- do you think that you can allege that on information and belief, you were sentenced unconstitutionally?
Mr. Alan M. Wiseman: The problem --
Justice Thurgood Marshall: Do you allege that on information and belief?
Mr. Alan M. Wiseman: The problem --
Justice Thurgood Marshall: You alleged that, did you know or you didn’t know it?
Mr. Alan M. Wiseman: No, Your Honor.
The reason we alleged the way we did is that the plaintiffs and members of their class have been sentenced in -- they believe and we believe to a longer term than whites.
To prove that --
Justice Thurgood Marshall: Which one of the plaintiffs?
Mr. Alan M. Wiseman: Your --
Justice Thurgood Marshall: Which one of the plaintiffs?
Mr. Alan M. Wiseman: If your -- Your Honor, I submit that we have in general covered that by stating the plaintiffs.
When we are filing a lawsuit against six defendants, we did not break it down as to which plaintiffs where affected by the conduct of which defendant except with respect to the State’s Attorney and Mr. Shepherd.
I would submit that if in the liberal ruling -- reading of the rules for pleading that we have covered it, but if not, then we should have a right to Amend our complaint because we can specify the individuals who have been directly affected by name if we have to.
Justice Potter Stewart: But now, you do specify some individuals at least with respect to the prosecutor defendants?
Mr. Alan M. Wiseman: Yes, Your Honor.
Justice Potter Stewart: And some episodes and examples are spelled out in some little detail in your complaint, but none of those people were named plaintiffs, were they?
Mr. Alan M. Wiseman: Yes, they are.
Justice Potter Stewart: They are?
Mr. Alan M. Wiseman: Yes.
Manker Harris for example is a named plaintiff, every single one of them is a named plaintiff.
Justice Potter Stewart: Well, Is there Hazel James for example?
Mr. Alan M. Wiseman: Yes.
Justice Potter Stewart: And the --
Mr. Alan M. Wiseman: James Martin is a plaintiff, James Wilson is a plaintiff.
Justice William H. Rehnquist: That’s in the Berbling complaint?
Mr. Alan M. Wiseman: Yes but, Your Honor, we have filed simply one complaint which covered all of the defendants.
I submit Your Honor that a -- we have pleaded the essential allegations for an action under these statutes.
We have stated that these plaintiffs have been discriminated against.
We’ve stated that the defendants have acted under color of state law, customer usage.
We stated that the plaintiffs have been deprived of certain enumerated rights and as stated specifically the kinds of rights we’re talking about with respect to the judges.
The setting of bond in which they use unofficial bond schedule; the setting of sentences in which they sentenced blacks the longer terms than whites; and the imposition of a jury fee in certain kinds of cases which are not imposed upon against whites.
Justice William H. Rehnquist: Well, you can see though our problem can’t you Mr. Wiseman, here the Seventh Circuit has decided some very complex legal questions and your complaint is at best it seems to me ambiguous as to whether any of your particular plaintiffs in the judges’ case has actually suffered these deprivations themselves?
Mr. Alan M. Wiseman: I think Your Honor, one way the Seventh Circuit handled that with respect to some of our allegations going to Mr. Berbling, whose petition is pending before this Court is that that we could have the right to amend our complaint if necessary, if the District Court found that it was necessary in that context.
I think it is important that the Seventh Circuit is extremely cognizant of what’s going on in Cairo.
Cairo is located --
Chief Justice Warren E. Burger: Counsel, you don’t want us to decide a case on the basis of the judicial notice that judges in Chicago take up some things that are going on in Illinois, do you?
Mr. Alan M. Wiseman: I don’t think it is necessary Your Honor because I think in our complaint we have alleged in part what is happening in Cairo that there is a considerable amount of tension between whites and blacks.
It is located -- because of its location it has had a history of civil strife that since the 1960s, these plaintiffs have been striving to obtain equal opportunity and employment, in housing and in participation in governmental affairs.
This is created strife in the community and to the local officials who -- if they applied the law even handedly could help the problem instead of exacerbated it and they engage in this pattern and practice of discrimination.
Justice Potter Stewart: Well, that’s all set out in complaint.
So, with or without judicial notice the Court of Appeals assumed that all those well-pleaded allegations were true, and so do we.
So, we assume that what you say, there is a very bad situation in Cairo as set out and fully described in your complaint.
Mr. Alan M. Wiseman: Your Honor --
Justice Potter Stewart: And that takes us -- so we accept and assume that but that still doesn’t solve some of the problems in this case.
Mr. Alan M. Wiseman: Right.
Chief Justice Warren E. Burger: Given the -- what you just suggested about the flexibility and liberality of pleading under the federal rules, I'm surprised you don’t argue that what your complaint says when you refer to plaintiffs that it should be read as meaning the plaintiffs and each of the plaintiffs or that there is an implied adjective each plaintiff and then at least we get on to the heart of some of the other problems in the case.
I'm not sure that solves your problem, but we’ve got a lot of important points here beside the one the importance on what we've been discussing?
Mr. Alan M. Wiseman: I believe I would adopt the language that you are suggesting, Your Honor.
We -- I believe we've stated a claim under the statutes in that Section 1981 provides that all persons shall be subject to light punishments, penalties, and exceptions as white persons.
That Congress at the time they pass the statute must have been considering judges who would be ones who would be subjecting persons to punishments, penalties, and exceptions.
I don’t believe that the judicial immunity applies to judges when we are talking about suits and equity.
The case of Bradley versus Fisher that is so heavily relied upon by the petitioners is not applicable to this case.
First, it was not decided under the civil rights statutes.
Second, it was an action in damages.
Third, it was isolated case involving a judge -- a lawyer who had been taking off the roles of attorneys and indeed, the court in giving the broad language that it did as to the independence of the judiciary in that decision could not augment that it applied to judges when we are talking about suits in equity because at the same time that it decided that case, it decided a case of ex parte Bradley which is at 7 Wallace 364 and in that case the United States Supreme Court issued a writ of mandamus to the then Supreme Court of the District of Columbia compelling that Court to restore Mr. Bradley to the roles of attorneys.
This Court’s decision was recently last term in Mitchum versus Foster decided the question as to whether a Federal Court could issue an injunction against a judge.
One of the defendants in that case was a judge.
The Court granted in remanding that case to the lower court suggested that it should consider the question of comity in our federalism and equity, but in terms of doctrine of judicial immunity, it is clear that an injunction can extend to a judge.
We are not asking a Court to infringe upon the lawful discretionary action of a judge.
What we are asking this -- a Court to do is prohibit a judge from doing that which she has no right to do.
We've simple asked that a judge -- that these judges be enjoined from using race as criterion in the exercise of their office.
We've not asked the Court to tell the judge what sentence he must impose.
We've not asked the Court to tell the judge which bond he must impose.
We have simply said that he cannot use race as a factor --
Justice Byron R. White: Intentionally and willingly?
Mr. Alan M. Wiseman: Yes, and willfully and in a pattern and practice case.
We -- some of the charges that we have do not involve the exercise of discretion at all.
With respect to the use of a non-official bond schedule, there's no discretion involved.
What we are talking here is it, when a black appears before the judge, he says, oh, if the defendants are black, the bond for him will be this because he has a set bond schedule for blacks.
We are not talking about the judge using weighing the various factors to determine --
Justice Byron R. White: Would -- would the act she want him to -- the judge to be enjoined from performing via crime under federal law?
Mr. Alan M. Wiseman: I --
Justice Byron R. White: In case of the use of race to impose a higher penalty is a crime, isn’t it?
And then, --
Mr. Alan M. Wiseman: I believe it would be under the prin -- but I'm not sure of that Your Honor.
I had not considered that through in this case.
We do not have alternative remedies against the judge because one, there's no right of damages against the judge; two, there's a no way of solving the problem in the Appellate Courts of Illinois.
What we are talking about here is the pattern and practice.
We are not seeking to enjoin a pending state proceeding.
We are seeking to terminate this pattern and practice of these judges.
Justice Thurgood Marshall: Has there ever been a direct appeal or state habeas on this question, involving a particular defendant?
Mr. Alan M. Wiseman: I don’t know Your Honor.
It would not be reflected in the record.
I think the problem though I forward on a case-by-case basis are several.
One, that in order to prove the charge of sentencing on a pattern and practice based considerable discovery is necessary.
It involves a considerable amount of resources to inspect court documents and police documents and then computerize them to come out with your prima facie case.
Chief Justice Warren E. Burger: Will that be less so you get to trial on this case?
Mr. Alan M. Wiseman: It will not be less so on this case, but if we prevail on this case and prove our facts that should end the problem.
If you had it on the case-by-case basis, then the next defendant would have to do the same thing and you would continue on infinitum.
Moreover, it would not prevent the on going discrimination that is occurring.
Part of the discrimination that we allege is -- we allege has an effect on the participation of these plaintiffs in peaceful parades against the racially discriminatory practices of merchants in public --
Justice Thurgood Marshall: You really want an injunction against future prosecutions, do you want that?
Mr. Alan M. Wiseman: No, Your Honor.
We are not --
Justice Thurgood Marshall: Do you want the Federal Court injunction against future state prosecutions?
Mr. Alan M. Wiseman: No.
What we are seeking is very simple that the judge not be permitted to use race as a criterion in administering the law with respect to bail, and sentencing and the imposition of jury fees.
Justice Thurgood Marshall: But he takes the oath not to do that?
Mr. Alan M. Wiseman: Your Honor, that’s right but in -- we are charging that this judges have violated that oath.
Justice Byron R. White: You want him under threat of a contempt if they do to try out on a contempt action whenever you might want to claim that he has used race in imposition of a sentence.
Mr. Alan M. Wiseman: Your Honor, I --
Justice Byron R. White: Intentionally and knowingly?
Mr. Alan M. Wiseman: I would suggest, one, that if a judge does violate the Federal Court order of that nature intentionally and willfully and not inadvertently, then he should be subjected to the contempt powers of the court.
Second, I would suggest, we could not go into the Federal Court on a show cause order simply on isolated instance.
Since we are pleading a pattern and practice case in order for us to show a violation of the court’s order, we would again have to show a pattern and practice case.
So, we are not talking about five instances where a black may have gotten a different sentence than a white.
We are going to have show more and I would submit to the Court that the Federal Court after hearing the parties, after weighing the credibility of the witnesses and evaluating the evidence, would then be able to be in a better position to fashion appropriate relief and he could put certain limitations on our coming in to find a judge in contempt.
Obviously, that’s a serious thing, but we are making serious charges here and if -- the judge certainly would have the power to require us to come in, to show again a pattern and practice.
Justice Lewis F. Powell: May I ask you at this point, who would be entitled under your definition of the class or classes here to come in and request a contempt citation for the judge?
Your class has defined that all financially poor persons and as all -- oh, let's see.
Mr. Alan M. Wiseman: Blacks.
Justice Lewis F. Powell: All black citizens.
But a rather extensive and amorphous class is, and I'm sure you would agree, that mean any black citizen in Cairo or anybody who could prove he was relatively poor, could request us a contempt citation Mr. Wiseman?
Mr. Alan M. Wiseman: No, Your Honor.
We would, one there has been no finding as to what the class consist of by the District Court.
That finding would have to be made first.
Then presumably, we would have to show here, assuming the District Court fashion release the strict limitations, we’d have to show a series of persons who come within the class who have violate -- who have been deprived of those rights.
It would not be an individual person who could do it.
The individual -- in the individual case that could be handled in other means, but what we are trying to do is to prevent the pattern and practice situation and the injunctive relief is -- we believe the most appropriate remedy.
Justice Lewis F. Powell: Yes, but who would enforce that?
Who would act to request a contempt citation for a judge?
Mr. Alan M. Wiseman: The named plaintiffs and members of the classes ultimately determined by the District Court could come in again and request that the court issue a show cause order.
It would be necessary I believe in the allegations for a filing of contempt that he alleged that a series of people have been deprived again in violation of the Court’s order.
Justice Lewis F. Powell: What's the population of Cairo?
Mr. Alan M. Wiseman: It is a population of 6,000 people approximately, 35% to 40% of them are black.
Justice Lewis F. Powell: What percentage roughly would you estimate would be categorized as financially poor?
Mr. Alan M. Wiseman: That I'm not certain Your Honor.
I would say the black unemployment is 19% in Cairo, whereas the white unemployment is 6%.
There are poor whites in Cairo, but not to the same extent as blacks.
Justice Lewis F. Powell: Well, obviously you have a serious problem there.
Certainly, no one would minimize that, but the legal problem is who would enforce such a decree, would it be 2,000 or 3,000 people or --?
Mr. Alan M. Wiseman: I believe Your Honor, that would be something that should be best reserved for the District Court after letting us have our day in Court which we have not yet had and then the District Court would be in a position to fashion the relief which would determine who could bring an action for a show cause order.
I don’t think that we can determine that here in the abstract.
I would suggest that the relief Your Honors that we were seeking is of a prohibitory nature.
We are seeking to terminate this pattern and practice of racial discrimination.
The discriminatory practices are deeply ingrained in Cairo and what the Seventh Circuit suggested and it was only by way of suggestion, was that a reporting system be devised whereby the District -- whereby the state courts would report the disposition of cases before them.
That would provide the information to the District Court that would be necessary to assure that the order is being enforced.
Chief Justice Warren E. Burger: You haven’t suggested us yet, at least, I don’t think I heard you say that just as yet, why the Appellate Courts of the State of Illinois can’t deal with this problem?
Mr. Alan M. Wiseman: There are several problems, Your Honor.
One, the appellate process on a case-by-case basis would not eliminate the on going discrimination, that on going discrimination goes in two ways.
Chief Justice Warren E. Burger: Does the Supreme Court of Illinois have supervisory power under the Illinois’ Constitution and practice?
Mr. Alan M. Wiseman: It’s not clear Your Honor whether the Supreme Court of Illinois could mandamus these judges in the span of time.
Chief Justice Warren E. Burger: Haven’t they exercised supervisory power in such cases?
Mr. Alan M. Wiseman: Yes, Your Honor, but it has involved the different kind of issue.
It’s generally involved the personal misbehavior of a judge in cases such as bribery or criminal conduct of that kind.
Chief Justice Warren E. Burger: Don’t you characterize this as misbehavior of the judge?
Mr. Alan M. Wiseman: Yes, I do Your Honor, but I don’t believe that it’s clear under Illinois law that the Illinois Supreme Court could intervene.
Moreover, Your Honor --
Chief Justice Warren E. Burger: But don’t you think that there are some, under federal concepts of federalism, there some obligation to find that out first?
Mr. Alan M. Wiseman: Your Honor, if I -- it would be necessary for me to go outside the record to explain the efforts that have been made in the state system.
The federal remedy is a supplementary remedy.
It is a remedy that is specifically provided by statute of a Congress.
To read that statute plainly, it gives us a cause of action in Federal Court to intervene.
Granted the concept of comity should tamper the exercise of federal injunctive powers, but in this kind of case where you have a pattern and practice where the state has engaged in something that has no right to do, where it's engaged in a conduct that is not insulated from judicial review, the State Court -- the Federal Courts have an obligation to intervene.
Justice Thurgood Marshall: What is the -- why does -- what happened to your damage claim?
Mr. Alan M. Wiseman: Your Honor, our damage claim was against the State’s Attorney Mr. Berbling.
That was -- he filed the petition 72-1107 which is pending before the Court.
Also, our claim against Mr. Spomer which is the case that we would be arguing next, in that case, Mr. Spomer substituted himself when he became State's Attorney on December 4, 1972, which was after the Seventh Circuit decision.
In summary, Your Honors, judges do not have the right to engage in racial discrimination.
If they did, they would then have the power to annul the Constitution of the United States.
There is no state relief here, we contend that is adequate to solve a pattern and practice situation.
The Federal Courts have always borne the basic responsibility of guaranteeing federal rights to its citizens when the states have deprived them of them.
All we are asking here is that we have our day in Court to prove our charges.
This case was dismissed on motion by the defendants.
Justice William H. Rehnquist: Mr. Wiseman, am I right in thinking that you don’t within the limits of your complaint allege any efforts to pursue state court remedies such as appeal?
Mr. Alan M. Wiseman: That is correct Your Honor.
We did not feel that was necessary because of the Court’s decisions such as in McNeese versus Board of Education where the Court has indicated that the remedy in the -- under the civil rights statute is a supplementary remedy to that there may or may not exist in the state courts.
Justice Byron R. White: Let’s assume now that a state criminal prosecution is pending against one or more the named plaintiffs at the time you filed this action and you could have raised these claims in that state prosecution?
Mr. Alan M. Wiseman: I would -- first Your Honor, we did not do that, but if we had, I would suggest that it would have been --
Justice Byron R. White: I think that you’ve say that all these plaintiffs except I don’t know that you claim this about the white plaintiffs, but let’s assume that all these plaintiffs you allege were involved in a criminal prosecution insofar as the allegations against the judge is concerned they must have been and they must have been, you claim that they were discriminated against in there criminal prosecutions?
Mr. Alan M. Wiseman: But we would --
Justice Byron R. White: And you could’ve raised these very claims in those state criminal prosecutions?
Mr. Alan M. Wiseman: The problem with that Your Honor is twofold.
One, in order to prove the charge and sentencing, a considerable amount of discovery is needed and the discovery -- a state judge whom we are challenging for racial bias in his decision is unlikely as a practical matter to grant us the discovery needed to prove that he did in fact engage in racial bias.
Second of all, that individual case would not have solved the on-going problem.
That would have solved simply that single case, but what we are talking about is that there are -- there is a continuous pattern and practice by this judges over the years to have engaged in this kind of conduct and what we are seeking is a prohibitory injunction to prevent them from doing that which they have no right to do.
Justice Byron R. White: So you think a class action like this where you look into the future is another exception to the Younger against Harris.
Mr. Alan M. Wiseman: In the circumstances of this case yes, Your Honor.
Justice Byron R. White: You mean in a pattern?
Mr. Alan M. Wiseman: Yes, in a pattern and practice case.
Justice William H. Rehnquist: Don’t you think that at least there is a possibility that if the Supreme Court of Illinois repeatedly reversed these judges and that they were saying that they were in fact guilty of what you charge them with that they would stop doing that?M
Mr. Alan M. Wiseman: No, Your Honor, I think that considering the history of Cairo that is not reasonable to expect that they would do that.
I think moreover that the handling it on a case-by-case basis wouldn’t solve the overall problem.
Chief Justice Warren E. Burger: Thank you Mr. Wiseman.
Mr. O’Rourke you have 5 minutes left.
Rebuttal of Robert J. O’rourke
Mr. Robert J. O’rourke: Thank you, Your Honor.
If the Court please again, we would like bring out that nowhere in the complaint as the Court has indicated in asking the questions, do we find that any plaintiff that has been named has been brought before this Court, has been charged, bailed, or sentenced.
Furthermore, there is not one single instance pleaded within the complaint of discriminatory practice.
Counsel has indicated that there has been a pattern and practice over the years of discriminatory conduct, it could be very easily shown that if there is such a pattern or practice that are individual instances, that there are differences between the pattern sentencing between white and blacks, We submit that we read the complaint as far as the sentencing charge not that there is a discrimination between white and black persons as far as bail is concerned, but that only that they use unofficial bond schedule in criminal cases and that solely it.
We also submit that the allegations as have been charged here in a civil rights case that the holdings of the courts have been that in civil rights action the pleadings must be specific in the case People Ex Rel Holf versus Ballinger (ph) is such a case that hold that these pleadings be specific.
We maintain that nowhere in any of the pleadings and nowhere in the argument has there been any allegation made that these particular Judges, O’Shea and Spomer have been guilty of a discriminatory act relative to white and black persons.
Justice William J. Brennan: If this pleading is not specific enough, what about its amendment?
Mr. Robert J. O’rourke: They have already amended once if the Court please and we --
Justice William J. Brennan: Well, how about amending the second time?
Mr. Robert J. O’rourke: Well, that might be possible.
I don’t know.
Justice William J. Brennan: Well, I --
Mr. Robert J. O’rourke: We think that if they got specific as far as the State’s Attorney Berbling is concerned and point out specific acts of discrimination.
Justice William J. Brennan: Well, but that’s against the judges as I understand Mr. Wiseman’s argument and they have the information which would identify which named plaintiffs were affected by which of the defendant judges, so he told us?
Mr. Robert J. O’rourke: I would say that in those specific instances if there where such specific instance that the remedies we have within our state court system would be able to take care of that.
We also point out that --
Justice William J. Brennan: Well, that’s another argument, but as --
Mr. Robert J. O’rourke: Yes, sir.
Justice William J. Brennan: -- as for the sufficiency of the pleadings what he in effect told us I gather is it he could amend this to specify everything?
Mr. Robert J. O’rourke: That’s possible.
Justice William J. Brennan: So he said, yes.
Mr. Robert J. O’rourke: Yes sir.
Chief Justice Warren E. Burger: Well, this -- what do you want to say about the suggestion I made to counsel after the reading and the pleadings the way we tend to read them in the federal -- under the federal rules that plaintiffs means each plaintiff?
Mr. Robert J. O’rourke: This goes with the argument I started to make if the Court please that if they got specific in 11 specific instances as far as the State’s Attorney is concerned that they could very easily have gotten specific as far as the judges’ concerned.
As the matter of fact those 11 specific instances, there's not once instance there where any of the key parties --
Chief Justice Warren E. Burger: Well, of course that’s all speculation about whether they can, but if we were to read this complaint as meaning each plaintiff, do you regard this is the large issue in this case, the pleading issue or is the underlying issue more important?
Mr. Robert J. O’rourke: Well, that’s one of the issues that if the Court please, the underlying -- the most important issue we can contend is the underlying issue of the state supervision by the Federal District Court on a continuing basis.
If there are --
Justice Potter Stewart: Well, in part of that of course is that you claim that these defendants are simply immune?
Mr. Robert J. O’rourke: Yes, sir.
Both for money damages and from the --
Justice Potter Stewart: Right and that would ended --
Mr. Robert J. O’rourke: -- the relief as far as a mandatory type of action --
Justice Potter Stewart: And if you’re correct in that proposition and of course that ends it and we don’t need to consider the propriety or the extent of, well, the relief indicated by the Court of Appeals if they are --
Mr. Robert J. O’rourke: I would say so.
Justice Potter Stewart: -- immune from any liability, inequity or law?
Mr. Robert J. O’rourke: And if there are no further question, we would ask that based upon these reasons that the judgment of the United States Court of Appeals for the Seventh Circuit be reversed as to these defendant judges and that this Honorable Court hold that the doctrine of the judicial immunity would apply in the mandatory injunction cases.
Thank you, Your Honor.
Chief Justice Warren E. Burger: Thank you Mr. O’Rourke.
The case is submitted.