United States District Court, Northern District of Illinois, E.D
November 14, 1985
GARY DOTSON, PLAINTIFF,
JAMES H. DONNEWALD, TREASURER, STATE OF ILLINOIS, AND NEIL F. HARTIGAN, ATTORNEY GENERAL, STATE OF ILLINOIS, DEFENDANTS.
The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
In this action, plaintiff Gary Dotson seeks a declaratory
judgment that the Illinois Criminal Victims' Escrow Account Act,
Ill.Rev.Stat., ch. 70, ¶¶ 401-410 (1982), may not be applied to
him without violating the ex post facto clauses of the United
States Constitution, Article I, Section 9, Clause 3 and Article
I, Section 10, Clause 1. The named defendants are James H.
Donnewald, the Illinois state treasurer, and Neil F. Hartigan,
Illinois state attorney general. The matter is currently before
the court on the motion of defendants to dismiss for failure to
allege an actual controversy, or, alternatively, to state a claim
upon which relief can be granted. For the reasons set forth
herein, the motion is granted.
Plaintiff was indicted and convicted for the crime of rape and
aggravated kidnapping against a certain Cathleen Crowell, now
known as Cathleen Crowell Webb. The crime allegedly took place on
the evening of July 9, 1977. On or about March 14, 1985, Cathleen
Webb confessed to agents of the Cook County State's Attorney's
Office that she had fabricated her original testimony, and that
plaintiff was innocent of the crime for which he was convicted.
The recantation resulted, among other things, in a commutation of
plaintiff's sentence to time served plus three years mandatory
Webb's recantation was nationally televised and reported
extensively in the press and media. So were plaintiff's continued
efforts to clear his name. After plaintiff's release from prison,
he entered into an agreement with authors in which he granted
certain literary rights to his life story. Plaintiff is also
involved in negotiations concerning a film depiction of his life
story, including the events surrounding his false accusation,
subsequent imprisonment, and eventual release.
Two months subsequent to plaintiff's conviction and about 26
months after his alleged crime occurred, the Illinois Criminal
Victims' Escrow Account Act, Ill.Rev.Stat., ch. 70, ¶¶ 401-410,
went into effect. That Act provides a mechanism whereby
commercial proceeds from crimes resulting in death or physical
injury will be made available to the victims of the crimes. The
pertinent language of the statute reads as follows:
Any person who has been charged with or convicted of
a crime in this State, involving a victim as
described in Section 2.3, who contracts with a
person, or the representative or assignee of such
person, with respect to the depiction of the crime in
a movie, book, magazine article, radio or television
production, or live presentation of any kind, or with
respect to that person's thoughts, feelings,
opinions, or emotions regarding the crime, shall file
a copy of such contract with the Treasurer. The
person with whom the person charged or convicted has
contracted shall pay over to the Treasurer any money
which would otherwise, by terms of the contract, be
owing to the person charged or convicted or his
representatives. The Treasurer shall establish by
deposit, within 3 days of receipt of such moneys, an
escrow account in the name of the person charged or
convicted for the benefit of and payable to any
victim of crimes committed by such person. A victim
who brought a civil action within 2 years of the date
of the establishment of the escrow account shall be
entitled to an amount . . . equal to the amount of an
unsatisfied judgment or a partially satisfied
judgment against the person or his representative
entered in a court of competent jurisdiction in an
action arising out of a crime committed by the
Ill.Rev.Stat., ch. 70, ¶ 403. If no civil actions are pending
against the charged or convicted criminal within two years of the
time the account is established, the funds shall be released to
the convicted or charged person. Id. at ¶ 406.
On July 29, 1985, an amendment to the aforesaid Act was passed
by a majority of the State legislature. Senate Bill 1289. This
amendatory legislation would have added language to the above
statute to prohibit the escrow account funds from ever becoming
the property of the purported criminal, and providing instead
that the funds after two years be released into a Violent Crime
Victims' Assistance Fund to be established in the State Treasury.
On August 16, 1985, Governor James Thompson signed Bill 1289
but returned it to the General Assembly with specific
recommendations for change. Under Illinois law, the bill is
considered in the same manner as a vetoed bill, ILL. CONST., art.
4, § 9(e), and will not take effect unless and until both houses
of the Illinois legislature vote to accept the Governor's
recommendations for change, and the Governor certifies his
acceptance upon representation. None of these contingencies has
occurred, and the amendatory legislation is not law.
Based on public statements given by certain state legislators,
plaintiff and some of the entities with whom he is contracting
believe that the state "may seek to enforce" the Escrow Account
Statute against him. Plaintiff brought the present action to
declare the statute as applied to him ex post facto, and thus to
declare any such attempt at enforcement unconstitutional.
Case or Controversy
Defendants' chief argument, and one which this court finds
dispositive, is that plaintiff has failed to allege the existence
of an actual "case or controversy" within the Article III
jurisdiction of this court. In his response memorandum, plaintiff
concedes that the applicability of the amendatory legislation is
not yet ripe for decision, and seeks relief only with respect to
the applicability of the statute as enacted in 1979. Plaintiff
nowhere alleges, however, that defendants have enforced or even
attempted to enforce the provisions of that Act to his detriment.
Plaintiff does allege that public statements by state legislators
lead him to believe in such a possibility, but nowhere alleges
the contents of these statements, the dates on which they were
allegedly made, or the persons making the statements.
Article III of the Constitution limits the exercise of judicial
power to "cases" and "controversies." Aetna Life Insurance Co. v.
Haworth, 300 U.S. 227, 239, 57 S.Ct. 461, 463, 81 L.Ed. 617
(1937); J.N.S., Inc. v. State of Indiana, 712 F.2d 303, 305 (7th
Cir. 1983). This limitation applies to actions brought under the
Declaratory Judgment Act, 28 U.S.C. § 2201, just as it does for
actions seeking traditional injunctive relief.
Many years ago, the Supreme Court framed the test for the
justiciability of a declaratory action: whether "there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment." Maryland Casualty Co. v.
Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85
L.Ed. 826 (1941). A mere "threat of enforcement of state law" is
not justiciable unless the threat presents "immediate coercive
consequences" or "immediate business costs." Alcan Aluminum, Ltd.
v. Department of Revenue, 724 F.2d 1294, 1298 (7th Cir. 1984);
Nuclear Engineering Co. v. Scott, 660 F.2d 241, 251-52 (7th Cir.
1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1622, 71 L.Ed.2d 855
(1982). In other words, a litigant may not invoke the power of a
federal court to pass upon the constitutionality of a statute
simply because an actual controversy may or even will occur in
the future: the controversy must presently exist in fact. J.N.S.,
Inc., 712 F.2d at 305.
Plaintiff argues that the pleadings demonstrate a "sufficient
immediacy and reality" by virtue of his allegations that he is
engaged in ongoing film and literary negotiations, that threats
of enforcement have been publicly made, and that certain of the
entities with whom he is negotiating believe the statute will be
applied to him. In Nuclear Engineering Co., the Seventh Circuit
made clear that when threatened governmental action causes
immediate business costs, an "actual controversy" exists
sufficient to support Article III jurisdiction. 660 F.2d at 252.
The Court also stressed, however, that mere allegations of
uncertain or speculative business injury are not enough; where
the jurisdiction of the court is challenged as a factual matter,
the party invoking jurisdiction must support the jurisdictional
allegations of the complaint by competent evidence. Id. (citing
Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1983).
In this case, plaintiff has responded to the defendants' motion
to dismiss simply by relying on the allegation that he and others
"believe" the state will enforce the 1979 statute against him.
Plaintiff nowhere alleges that parties with whom he is
negotiating are refusing to do business with him or are paying
over to the state monies properly owed to him. Plaintiff alleges
no "immediate coercive consequences" as required by Nuclear
Engineering and provides no factual allegations to bolster his
suggestion of "immediate business costs." A litigant in federal
court must demonstrate an injury which is "real, not imaginary;
concrete, not abstract; apparent, not illusory; and demonstrable,
not speculative." Myron v. Chicoine, 678 F.2d 727, 730 (7th Cir.
1982). Plaintiff's conclusory allegations are insufficient to
meet this burden.
Even were plaintiff able to allege immediate business costs, it
is highly questionable whether the alleged statements by public
legislators are sufficient to constitute a threat of enforcement.
State legislators do not enforce the provisions of the Act, nor
are they parties to this action. Ordinarily, a reasonable
apprehension of a justiciable controversy must be inspired by the
defendants' actions before jurisdiction will be held to exist.
See, Crown Drug Co., Inc. v. Revlon, Inc., 703 F.2d 240, 243 (7th
Cir. 1983). While plaintiff's name was apparently mentioned in
the legislative debates over the amendatory legislation, that in
itself does not indicate that the named defendants intend to
enforce the old Act against plaintiff.
Accordingly, the defendants' motion to dismiss is granted, and
the action is dismissed for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(2). Dismissal is by definition without
prejudice to a future action should an actual controversy arise.
The November 18, 1985 status date is stricken.
It is so ordered.
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