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June 28, 1963


The opinion of the court was delivered by: Robson, District Judge.

The core of the controversy presented by the several motions of defendants to dismiss or for judgment upon the recently filed affirmative defenses is whether the finding by Judge Bernard M. Decker in his October 18, 1961 opinion in Cause No. 71780, Deerfield Park District, et al. v. Progress Development Corporation, in the Circuit Court of Lake County, Illinois, that "The evidence wholly fails to establish the charge of conspiracy against the members of the Park Board" obviates the need for this Court's "trial on the merits of Count III" as directed by the Court of Appeals' mandate of February 7, 1961. Judge Decker's opinion has been affirmed by the Illinois Supreme Court, 26 Ill.2d 296, 186 N.E.2d 360, and certiorari denied by the United States Supreme Court, 372 U.S. 968, 83 S.Ct. 1093, 10 L.Ed.2d 131, and rehearing denied June 11, 1963, 374 U.S. 818, 83 S.Ct. 1692, 10 L.Ed.2d 1042. Count III is the conspiracy count of the complaint.

The four pending separate motions by defendants to dismiss the complaint or for judgment on the pleadings are filed by the Park District and its individual members, the resident defendants, the Village of Deerfield and the individuals constituting its board of trustees, and Joseph Powell, a member of the "citizens committee." These motions were filed in the month of May, 1963, and are predicated on the United States Supreme Court's denial of certiorari from the Illinois Supreme Court holding which was adverse to Progress.

Supplemental answers have been filed by the resident defendants, the trustees of the Village of Deerfield, and Joseph Powell, setting forth "affirmative defenses" that the state court ruling constitutes a res judicata holding that there was no conspiracy as charged in the complaint.

There can be no question of the strict adherence required by a District Court of the mandate of a Court of Appeals. (Paull v. Archer-Daniels-Midland Company, 313 F.2d 612, 617 (C.A.8, 1963)). While requiring "strict compliance," the Court went on to say that "the trial court is free to pass upon any issue which was not expressly or impliedly disposed of on appeal." The United States Supreme Court has said that an inferior court "has no power or authority to deviate from a mandate issued by an appellate court." (Briggs v. Pennsylvania Railroad Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403) Chief Judge John S. Hastings stated in Lee v. Terminal Transport Co., Inc., 7 Cir., 601 F.2d 234, that a district court is "without authority to modify the mandate" of the Court of Appeals. Judge Latham Castle stated similarly in Bankers Life and Casualty Company v. Bellanca Corporation, 7 Cir., 308 F.2d 757, at p. 759. Further holdings accord. Thus, where a cause has been remanded for procedure in compliance with a mandate, the District Court may not undertake to revise its original opinion in a material respect. (Stiller v. Squeez-A-Purse Corporation, 296 F.2d 504 (C.A.6, 1961)) Judge F. Ryan Duffy in Independent Nail & Packing Co., Inc. v. Perry, 7 Cir., 214 F.2d 670 (1954), stated that the District Judge had exceeded his powers in withholding from the petitioner the relief to which the Court of Appeals had decided it was entitled. To similar effect is Judge Walter C. Lindley's holding in Criscuolo v. United States, 7 Cir., 250 F.2d 388 (1957), where he held the District Court had deviated from the mandate. The limited and strict duty of the District Court is emphasized in the Sixth Circuit opinion in Scientific Anglers, Inc. v. B.F. Gladding & Co., Inc., 260 F.2d 662 (1958), and the Fourth Circuit opinion in Tribble v. Bruin, 279 F.2d 424 (1960).


  "* * * [B]lind obedience to the letter of the
  mandate is not exacted where injustice will result
  therefrom, as where that would allow execution to
  go against parties who have compromised their
  liability * * *. Illustrating this rule of
  reasonably substantial compliance, some cases may
  be cited where dismissals, executions, injunctions
  and receivership proceedings were sustained
  although not in exact accord or wholly within the
  directions sent down." (Cyclopedia of Federal
  Procedure, § 69.34.)

That strict compliance with the dictates of a mandate may be relaxed to encompass intervening circumstances is indicated by Judge Elmer J. Schnackenberg's statement in A.C. Becken Co. v. Gemex Corporation, 7 Cir., 314 F.2d 839 (1963), at p. 840:

    "The record before us shows that the district
  court on remandment proceeded along the lines
  suggested. It heard additional evidence which was
  devoted to actual occurrences during the time which
  elapsed while the case was being litigated upon
  appeal. The court * * * had the superior advantage
  of evidence of conditions which had in fact
  occurred while the case had been on appeal. We
  concur in the conclusion of the district court
  that, under these circumstances, evidence of actual
  occurrences and experiences between the first and
  last hearings may be considered in connection with
  the estimates of future damage introduced at the
  first hearing. * * * [T]he entire evidence must be
  considered together." (Emphasis supplied.)

In order to determine whether this Court's inescapable duty to comply with the Court of Appeals' mandate requires it to conduct anew a trial of the conspiracy issue raised by Count III despite the state court's intervening holding of the nonexistence of a conspiracy, this Court has studied carefully the very exhaustive opinion of Judge Decker, and the affirming opinion of the Illinois Supreme Court. This Court concludes there can be no question that Judge Decker granted the fullest opportunity to Progress to present all the evidence it could adduce against anyone charged with the alleged conspiracy. And upon that evidence there can be no question that Judge Decker found no conspiracy actually existed. Thus he states:

    "The only remaining issue is whether Progress
  has shown by clear and convincing evidence the
  existence of a conspiracy to prevent it from doing
  business in which the participants are guilty of
  `purposeful discrimination' against it. * *
    "When this evidence is analyzed it reveals
  nothing more than that a large number of Deerfield
  citizens were opposed to the type of integrated
  subdivision proposed by Progress. * * *
    "Stripped to its essentials the contention of
  Progress is that the residents of Deerfield had no
  legal right to make a choice between the use of
  Progress' land for park purposes for the benefit
  of the general public of Deerfield in preference
  to its use by the defendant for a private
  residential development. * * *
    "Unless suspicion and conjecture are to be
  substituted for evidence there is no proof in this
  record of any express or implied agreement on the
  part of the members of the Park Board with any
  other persons to institute this condemnation for
  the sole purpose of forcing Progress out of
  business. * * *
    "The acquisition by the Park Board of additional
  land for public use by the citizens of Deerfield
  was a lawful purpose. The means adopted to
  accomplish this object — the referendum and the
  condemnation — were lawful means. A common
  undertaking to accomplish a lawful object in a
  lawful manner is not a conspiracy irrespective of
  the motives of those engaged therein. * * *
    "* * * The evidence wholly fails to establish the
  charge of conspiracy against the members of the
  Park Board." (Emphasis supplied.)

In its conclusion of law the Court stated:

    "There is no evidence that any member of the
  Park Board formed or engaged in any conspiracy to
  deprive ...

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