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Comments of m. spiegel on SR-CBOE-2006-106 C
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urry&
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No.
No.
No.
No.
I
N
T
HE
Supreme Court of the United States
M
ARSHALL
S
PIEGEL
,
PETITIONER
v.
S
ECURITIES AND
E
XCHANGE
C
OMMISSION
,
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR WRIT OF CERTIORARI
M
arshall C. Spiegel
Pro Se
1
6
18D Sheridan Road
W
ilmette, Illinois 6 0091
T
elephone: 847/853-0993
Telecopier: 847/853-0990
CURRY & TAYLOR
´
WASH D.C
.
´
(202) 393-4141
´
USSCINFO.COM Fax changes to 202-204-4870
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QUESTIONS PRESENTED
Did the D.C. Circuit Court of Appeals erroneously
apply this Courts holdings and Constitutional standards
for cases and controversies in dismissing on grounds
of mootness, his petition for review of an order of the
Securities
and
Exchange Commission
(SEC)
that effectively
effectively
effectively
effectively validated the ultra vires action of the
board of directors of the Chicago Board Options
Exchange ("CBOE") to revise the substance of its Articles
of Incorporation without the required vote of its
membership, when Petitioner (1
(1)
(1)
(1) had vigorously
had vigorously
had vigorously
had vigorously
challenged the CBOE's board's action at all stages of
challenged the CBOE's board's action at all stages of
challenged the CBOE's board's action at all stages of
challenged the CBOE's board's action at all stages of
proceedings and before the SEC
proceedings and before the SEC,
proceedings and before the SEC,
proceedings and before the SEC, ( 2
(2)
(2)
(2) challenged the
challenged the
challenged the
challenged the
SEC's jurisdiction to determine corporate governance
SEC's jurisdiction to determine corporate governance
SEC's jurisdiction to determine corporate governance
SEC's jurisdiction to determine corporate governance
issues controlled by state law,
issues controlled by state law,
issues controlled by state law,
issues controlled by state law, ( 3
(3)
(3)
(3) challenged the
challenged the
challenged the
challenged the
SEC's determi
SEC's determi
SEC's determi
SEC's determination as contrevening controlling stat
nation as contrevening controlling state
nation as contrevening controlling state
nation as contrevening controlling state
law, and
law, and
law, and
law, and ( 4)
( 4)
( 4)
( 4) had a continuing financial and legal
had a continuing financial and legal
had a continuing financial and legal
had a continuing financial and legal
interest in the outcome of the review of the SECs
interest in the outcome of the review of the SECs
interest in the outcome of the review of the SECs
interest in the outcome of the review of the SECs
order because such order, as a matter of law,
order because such order, as a matter of law,
order because such order, as a matter of law,
order because such order, as a matter of law,
materially thwarted his ability to proceed with an
materially thwarted his ability to proceed with an
materially thwarted his ability to proceed with an
materially thwarted his ability to proceed with an
action for damag
action for damag
action for damag
action for damages against the CBOE arising from its
es against the CBOE arising from its
es against the CBOE arising from its
es against the CBOE arising from its
ultra vires board action?
ultra vires board action?
ultra vires board action?
ultra vires board action?
Are Petitioner's statutory rights to judicial review
pursuant to Section 25(a)(1) of the Exchange Act
conditioned exclusively on demonstrating financial harm
and exclude a public interest exception to the mootness
doctrine as a commentator's right to free speech.
Are the separation of powers between the Federal
Executive and State Judiciary being usurped when the
administrative agency SEC becomes the sole arbiter of
voting disputes concerning issues of Corporate
Governance between CBOE's Board of Directors and its
or 20
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ii
disenfranchised constituency (minority equity owners)
that had been the exclusive jurisdiction of State Court
Chancellors over questions of State Law and Contracts?
Is the Equal Protection Clause of the U.S.
Constitution and due process being violated when the
SEC relies exclusively on a legal opinion from CBOE in
the rule making process, allows CBOE unrestricted time
to file rebuttals in support of its rule filings, refuses to
hear disenfranchised commentators own legal opinion
opposing rule changes even though "CBOE consented to
an extension of time . . . for the Commission to consider"
commentator rebuttals that had previously been allowed
in these matters?
Is due process being denied when legal and
customary administrative comment periods were
sidestepped for prior rule approvals by the SEC which
prohibits disenfranchised corporate constituents from
being able to seek judicial review in questions of
corporate governance in current disputes?
Are due process protections being ignored when an
administrative agency is derelict in providing timely
proper FOIA disclosures when it becomes the exclusive
arbiter as to what is discoverable in its own proceedings?
Do these actions of the administrative agency rise
to the level of being arbitrary and capricious and in
violation of the Securities Exchange Act of 1934
("Exchange Act")? Fax changes to 202-204-4870
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TABLE OF CONTENTS
Page
Q
UESTIONS
P
RESENTED
................................................................i
T
ABLE OF
A
UTHORITIES
..............................................................iv
O
PINIONS
B
ELOW
........................................................................... 1
J
URISDICTION
................................................................................. 2
R
ELEVANT
P
ROVISIONS
I
NVOLVED
........................................... 2
S
TATEMENT
.................................................................................... 2
R
EASONS FOR
G
RANTING THE
P
ETITION
................................... 8
C
ONCLUSION
................................................................................. 30
A
PPENDIX
Circuit Court Opinion .......................................................... 1a
Orders Denying Rehearing .................................................. 3a
D.C. Circuit Court Order (6/24/05)...................................... 5a
SEC Order Denying Extension........................................... 7a
SEC FOIA Letter (4/1/006) .................................................. 9a
Legal Opinion of Delaware Counsel Gordon
Fournarish Mammerella, P.A., (6/3/05) .......................... 10a
SEC Release No. 34-51252.................................................. 33a
SEC Release No. 34-51568.................................................. 60a
or 20
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iv
SEC Release No. 34-51733.................................................. 74a
New York Times SEC Article (5/28/06)............................ 99a
Relevant Provisions Involved.......................................... 110a Fax changes to 202-204-4870
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TABLE OF AUTHORITIES
Page
C
ASES
A
RIZONA V
. T
HOMPSON
, 281 F.3
D
248, 258-59 (D.C.
C
IR
2002) ................................................................................. 14
A
THERTON
M
ILLS V
. J
OHNSTON
, 259 U.S. 13 (1922)............. 10
B
ENTON V
. M
ARYLAND
, 395 U.S. 784, 788 (1969)................... 11
B
OND ET AL V
CBOE & CBOT
O
1
CH
14427 A
PPEALED
01-3846 ................................................................................... 6, 7
B
USINESS
R
OUNDTABLE V
. SEC, 905 F.2
D
406, 412­
413 (D.C. C
IR
. 1990)................................................................ 19
CBOE
IN THE
C
IRCUIT
C
OURT OF
C
OOK
C
OUNTY
[B
UCKLEY V
. CBOE, 109 I
LL
. A
PP
. 3
D
462, 440 N.E.
914 (1
ST
D
IST
. 1982) ................................................................. 4
CBOT
V
CBOE 00
CH
1500, 00
CH
9725 ..................................... 4, 5
C
HAMBER OF
C
OMMERCE V
. SEC, 412 F.3
D
133, 138
(D.C. C
IR
. 2005) ...................................................................... 18
C
LARKE V
. U.S., 915 F.2
D
699, 701 (D.C. C
IR
. 1990)
(
EN BANC
).....................................................................10, 11, 13
C
LINTON V
. N
EW
Y
ORK
, 524 U.S. 417 (1998) .......................... 17
C
ORT V
. A
SH
, 462 U.S. 66, 84 (1975).......................................... 19
CTS C
ORP
.
V
. D
YNAMICS
C
ORP
.
OF
A
MERICAN
, 481
U.S. 69, 89 (1987)................................................................19, 20
C
UTNER V
. F
RIED
, 373 F.S
UPP
. 4, 9 (S.D.N.Y. 1974) ............ 13
or 20
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D
UKE
P
OWER
C
O
.
V
. C
AROLINA
E
NVIRONMENTAL
S
TUDY
G
R