Opposition Brief — Larrance v. Illinois Human Rights Commission

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“ Nessiss 0 | FILED

| FEB 7? 1988

jn The JOSEPH F. SPANIOL, JR,

Supreme Court of the United States "

@ctober Term, 1988

CHARLES LARRANCE,

Petitioner,

THE ILLINOIS HUMAN

RIGHTS COMMISSION, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the Illinois Supreme Court

BRIEF OF RESPONDENTS, MACON COUNTY

FARM BUREAU, COUNTRY CASUALTY

INSURANCE COMPANY, COUNTRY INSURANCE

COMPANY, COUNTRY MUTUAL INSURANCE

COMPANY, COUNTRY LIFE INSURANCE

COMPANY, AND COUNTRY CAPITAL

MANAGEMENT COMPANY, IN OPPOSITION

BERNARD HARROLD

Counsel of Record

WILDMAN, HARROLD,

ALLEN & Drxon

One IBM Plaza, Suite 3000

Chicago, Illinois 60611

(312) 222-0400

Counsel for Respondents

American Reprographics Management, Inc.™ (312) 332-ARMI (800-999-6239) SX

LIST OF PARTIES

Charles Larrance, Petitioner

The Illinois Human Rights Commission, Respondent

The Illinois Department of Human Rights, Respondent

Macon County Farm Bureau*, Respondent

Country Casualty Insurance Company’*, Respondent

Country Insurance Company* (currently known as Country

Preferred Insurance Company), Respondent

Country Mutual Insurance Company*, Respondent

Country Life Insurance Company*, Respondent

Country Capital Management Company*, Respondent

* Parent Corporation: Illinois Agricultural Association (“TAA”).

Affiliate companies of IAA include: Illinois Agricultural Service

Company; Illinois Agricultural Auditing Association; AgriVisor

Services, Inc.; LAA Trust Company; Illinois Milk Producers Association;

GROWMARK, Inc.; Interstate Producers Livestock Association; Illinois

Agricultural Holding Co.; IAA Federal Credit Union; Prairie Farms

Dairy, Inc.; LAA Recreation Association; FS Credit Corporation; Illinois

Livestock Marketing Company; P.F.D. Supply Corporation; Ice Cream

Specialties, Inc; Muller-Pinehurst Dairy, Inc.; Mid-Co Commodities,

Inc.; Country Capital Growth Fund, Inc.; Mo-Kan Express, Inc.; Hiland

Dairy Company; Roberts Dairy Company; FS Farmco, Inc.; Country

Capital Tax Exempt Bond Fund, Inc.; Country Capital Income Fund,

Inc.; Best Ever Companies, Inc.; Ideal-American Dairy; Grantiand FS,

Inc.; Country Investors Life Assurance Company; Chapman Ice Cream

Co.; East Side Jersey Dairy, Inc.; Illinois Grain Corporation; Northwest

Farm Bureau Insurance Company; Country Capital Money Market

Fund, Inc.; Farmers Export Co.; Agri-Trans Corporation; Pinnacle

Insurance Company; Illinois Cooperative Futures Company; FS

Consolidated Feeds, Inc.; and CC Services, Inc.

TABLE OF CONTENTS

Page

IIE wi.siiisk co sassertesdadhckasbespudsciododimcommcanedbasseaisouinctianaah 2

OT AT ee Ce PI GNI kciesnsccnscincccctcscciseneamaancetassaronennes 2

REASONS FOR DENYING THE WRIT ...................:ccceceeeeeeeeees 5

A. The Order Of Which Petitioner Seeks Review

Ts Not A Tevicrmile One .ccccccccccccasssccsccssscsscccsccoccesessss 5

B. The Questions Presented Are Not Reviewable

Because They Compel Re-Examination Of The

State Court's Findings Of Fact.............csccccossccsscssssesseses 5

C. The First Question Presented Raises No

Pe I iivcidiscetesecccsiicessthctbaceilinsiatseccitininstdanekenianses 6

1. The Constitutional Right Upon Which

Larrance’s Due Process Claim Is

PPO EI BE Be iva dcccdssecscsetnciccisdsecntarsecinnnics 6

2. The Circumstances Of Larrance’s

Tardy Charge Filing Do Not Entitle

Him To Due Process Protection. ................ccccsceeeeeeees 7

3. Because Larrance Had Counsel Within

The 180 Day Period, No Due Process

CT a lll 9

4. There Is No Basis For Larrance’s

Contention That The Commission Has

Unlawfully Hindered Other Claimants.................. 10

D. The Second Question Presented Raises No

I I ssiddeicsinicsinetainnetcieaniailg Manrieadicaanachcaohasxen 11

E. Larrance’s Asserted Due Process Claims

Are Logically Incompatible ..................cccccceessssseceessseees 12

OT siinascinstecoindiniintiintedisahcdale np iapsiliiiadptatatidadiaen da tabiiiede

TABLE OF AUTHORITIES

CASES: Page

Abramson v. Univ. of Hawaii, 594 F.2d 202 (9th

a aseitsnenannnnbanesinnsese 12

Bireline v. Seagondollar, 567 F.2d 260 (4th

Cir. 1977), cert. denied, 444 U.S. 842 (1979)...........::csseecseseeeeeee 12

Bd. Of Governors Of State Colleges And Univ(s).

For Northeastern Ill. Univ. v. Rothbardt, 98 Tl.

App. 3d 423, 424 N.E.2d 742 (4th Dist. 1981), appeal

denied, No. 56433 GNOv. BO, 1961) ...........cccccccccccsccscssseccecsecccsces 11

Chardon v. Fernandez, 454 U.S. 6 (1981) .........ccccceeeeecseeeeeeeeeeeees 12

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) .........eccseeeeeseeeeeeees 11

Del. State College v. Ricks, 449 U.S. 250 (1980) .......ccceeeeeeeeeeee 12

Grayeors U. Farris, BET USS. SZ (GZS) ........00ccccccccescsessccesesscesonees 6

Great N. Ry. Co. v. Sunburst Oil and Ref. Co.,

sas csinasecsnastanbeunsncssonasens 11

Greenholdt v. Ill. Bell Tel. Co., 107 Ill. App.

3d 748, 438 N.E.2d 245 (4th Dist. 1982) ............ ce ceeeseeeeeeeeeeees 7

Hamel v. Prudential Ins. Co., 640 F. Supp. 103

ss esidaineabisbaadnnssauaananecanenaitia 9

Interstate Circuit, Inc. v. City of Dailas, 390

I cn cusipenannapaceenbsdncsbendea 5

Jackson v. Hayakawa, 605 F.2d 1121 (9th

Cir. 1979); cert. denied, 445 U.S. 952 (1980).............ececeeeeeeeee 12

Keyse v. Cal. Tex. Oil Corp., 590 F.2d 45 (2d Cir. 1978).............. 9

Leite v. Kennecott Copper Corp., 558 F. Supp. 1170

(D. Mass. 1983), aff'd, 720 F.2d 658 (1st Cir. 1983)................... 9

Linkletter v. Walker, 381 U.S. 618 (1965) ............ccceccecceeesesseeeeeee 11

Lloyd A. Fry Roofing Co. v. Wood, 344 U.S.

sna schhpaibabhdniteinbinenmnabebtnnicsinnians 6

Page

Logan v. Zimmerman Brush Co., 455 U.S.

i a slic tdinncniednimamagia 7,8

Michigan- Wisconsin Pipe Line Co. v. Calvert,

Pe aia carci cilia diisilansiaenmlaindinenaaninesaensenh 5

Needham v. Beecham, Inc., 515 F. Supp. 460 (D.

ol abel anenbadnielalis 9

People v. Vance, 76 Ill. 2d 171, 390

ca io ace lich saa ecinpeninhabiipaninnanissnentamobeniisisn 5

Thakkar v. Wilson Enter(s)., Inc., 120 Til.

App. 3d 878, 458 N.E.2d 985 (1st Dist. 1983) ....00. cee cay

Yount v. Hesston Corp., 124 Ill. App. 3d 943, 464

ee RE I I cide snckebasocenscnsstenaisannicentnioneinesnass 7

CONSTITUTIONS:

re a aks la acamaehiadaicenaaladanon 7

STATUTES:

SRE.. BEV. ERAT. Cok. SE, pmem, GE CGT oases scccicnccsssscceccssnssonvene 12

Be ee ee CE i idsehcintenisieptenccncniccinndnnenieinns 2

No. 88-135

In The

Supreme Court of the United States

@ctober Germ, 15988

CHARLES LARRANCE,

7 : 7 Petitioner,

THE ILLINOIS HUMAN

RIGHTS COMMISSION, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the Illinois Supreme Court

BRIEF OF RESPONDENTS, MACON COUNTY

FARM BUREAU, COUNTRY CASUALTY

INSURANCE COMPANY, COUNTRY INSURANCE

COMPANY, COUNTRY MUTUAL INSURANCE

COMPANY, COUNTRY LIFE INSURANCE

COMPANY, AND COUNTRY CAPITAL

MANAGEMENT COMPANY, IN OPPOSITION

Respondents, Macon County Farm Bureau, Country Cas-

ualty Insurance Company, Country Insurance Company,

Country Mutual Insurance Company, Country Life Insurance

Company, and Country Capital Management Company, respect-

fully request that this Court deny the petition for writ of certiorari.

——

JURISDICTION

The order sought to be reviewed was issued on October 6,

1988 by the Illinois Supreme Court.

The statutory wsieibaiins Meihiiainine titel ai latin.

is Court to review the order is 28 U.S.C.A. § 1257(3)

— (West 1966).

This Court lacks jurisdiction over the Petition. The order

of the Illinois Supreme Court denying leave to appeal is not a

reviewable judgment under 28 U.S.C.A. § 1257(3) (West 1966).

This Court lacks jurisdiction over the questions presented

in that neither raises a federal question.

STATEMENT OF THE CASE

Petitioner, Charles Larrance, was Macon County Agency

Manager for Respondents (hereinafter referred to as “Country

Companies’). He had contractual agreements with Country

Casualty Insurance Company, Country Insurance Company,

Country Mutual Insurance Company, Country Life Insurance

Company, and Country Capital Management Company. Lar-

rance was notified by letter of April 27, 1979, received on April

30, 1979, that his contracts would be terminated effective May

31, 1979. His last day of work was May 31, 1979. (May 21, 1985

Report of Proceedings before the Illinois Human Rights Com-

mission, Vol. VII, hereinafter referred to as “R. Vol. VII” at 3,

4, 28.)!

On July 9, 1979, Larrance went to the Commission’s office

in Springfield, Ilinois. (May 21, 1985 Report of Proceedings before

the Commission, Vol. VII], hereinafter referred to as “R. Vol.

VIII” at 14; R. Vol. VII at 4.) He filled out a form entitled

“Complainant Information Sheet,” asserting discrimination on

1 At the time Larrance filed his charge, the Illinois Human Rights

Commission was known as the [Illinois Fair Employment Practices

Commission. The Illinois Human Rights Act was known as the Illinois

Fair Employment Practices Act. For convenience, Country Companies

= — to both agencies as “the Commission” and both statutes as

66. e ne"

the basis of physical handicap and identifying “Country

Companies, Box 2000, Bloomington, Illinois 61701” as his

employer. (Resp. Ex. 1; R. Vol. VII at 116.) After filling out the

___---— form, Larrance was interviewed by George Crawford, a Com-

mission intake representative. (R. Vol. VIII at 14, 15.) Crawford

took notes during the interview. (Pet. Ex. 3; R. Vol. VII at 111;

R. Vol. VIII at 21.) The purpose of the interview was to elicit

information from Larrance about the alleged discrimination. (R.

Vol. VII at 15.) The Commission did not in 1979, or at any

other time, conduct an investigation before a charge was filed.

(R. Vol. VII at 80, 107.)

As of July 9, 1979, the Commission was operating under a

Rapid Charge Processing System designed to facilitate the swift

acceptance and handling of charges. (Resp. Ex. 17; R. Vol. VI

at 126.) Crawford told Larrance that he had 180 days, or until

“some time towards the end of November,” to file his charge.

(R. Vol. VII at 45.) It was Crawford’s practice to tell people

to file their charges “as soon as possible.” (Jd. at 78.) Larrance,

however, never determined the last day on which his charge

could be timely filed. He paid “no particular concern” to it. (R.

Vol. VII at 70-72.)

_Larrance gave Crawford information about his case. He

provided Crawford with the identities of the parties with whom

he had agency manager contracts. (R. Vol. VIII at 73-74.)

Larrance also complained to Crawford on July 9 about the

renewal commissions he was being paid by Country Companies.

(Id. at 72.)

There is no evidence that Larrance asked the Commission

to file a charge on July 9. (R. Vol. VII at 6-7, 9-10.) Had Larrance

requested that the Commission type and file a charge on that

date, the agency would have done so. (R. Vol. VIII at 131-132,

161; Resp. Ex. 5; R. Vol. VIL at 119; Resp. Ex. 3; R. Vol. VI

at 118.) Sandra Kimberly, Larrance’s expert witness from the

Commission, was unaware of anyone who had ever been turned

away after insisting on filing a charge. (R. Vol. VII at 161.)

Larrance’s claim that the Commission “refused” to accept his

charge has no support in the record.

———

Crawford determined at the July 9 interview that “there were

a couple of items . . . needed to be pursued.” (Jd. at 27.) He wrote

in his notes of July 9 that he wanted to see Larrance’s agency

manager contracts. (Pet. Ex. 3; R. Vol. VII at 111; R. Vol. VII

at 21.) Crawford “generally left it to the complaining party . . . to

contact [him] with the information.” (R. Vol. VIII at 28.) It was

Crawford’s practice to get as much information as possible at

the initial interview to “save a lot of unnecessary paperwork.”

(Id. at 105.) A Commission form Larrance was given no later

than July 9 states that complainants should bring “any papers

or documents that relate to [their] charge” to the initial interview.

(Resp. Ex. 18; R. Vol. VI at 127.) Crawford asked Larrance on

July 9 to provide him with copies of the agency manager

contracts. (R. Vol. VII at 191.)

Larrance did not return to the Commission or produce the

agency manager contracts until October 29, more than 180 days

from the date on which he learned of his termination. (R. Vol.

VI at 11, 66.)

On October 3, 1979, Larrance retained Jon Robinson as his

general attorney and consulted with him regarding his claim

of discrimination. (Jd. at 22, 54; Larrance’s Answers to Inter-

rogatories 1 and 2.) The “bulk” of the discussion on that date

concerned renewal commissions. (Jd. at 96.) Even before meeting

with Robinson, Larrance had discussed the subject of renewal

commissions with Mr. Schleuter and Mr. Cassens of Country

Companies. (Jd. at 80-81.)

On October 3, 1979, Larrance and Robinson still had over

three weeks to file a charge within 180 days of notice of Larrance’s

termination. On October 4, 1979, Robinson wrote a letter to Duane

Miller, Executive Vice President of Country Companies. (Resp.

Ex. 2; R. Vol. VII at 117.) This letter, which Larrance knew

Robinson was writing, “zeroed in on the renewal activity.” (R.

Vol. VII at 79, 85.) The letter stated as follows:

(TJhe Illinois Fair Employment Practices Commis-

sion has been contacted regarding the basis for his

termination, and we would like to pursue this if your

Company is not willing to pay him the three percent

(3%) commission on renewals.

(Resp. Ex. 2.) The content of the letter was what Larrance wanted

Robinson to say. (R. Vol. VII at 79, 85.) Larrance testified that

had the renewal dispute been resolved in his favor, he would

not have filed a charge of discrimination. (Jd. at 77.)

Larrance did not file his charge until November 15, 1979,

199 days after Country Companies notified him of his termi-

nation. (Pet. Ex. 7; R. Vol. VI at 113.)

REASONS FOR DENYING THE WRIT

A. The Order Of Which Petitioner Seeks

Review Is Not A Reviewable Order.

Larrance prays that this Court issue a writ of certiorari “to

review the Lllinois Supreme Court order that denied Petitioner

leave to appeal from an order of the Dlinois Appellate Court

for the Fourth District.” (Petitioner’s Opening Brief, hereinafter

referred to as “Pet. Op. Br.” at 1.) The Dlinois Supreme Court

is the court of last resort in [linois. Denials of leave to appeal

“carry no connotation of approval or disapproval of the appellate

court action, and signify only that four members of this court,

for reasons satisfactory to them, have not voted to grant leave.”

People v. Vance, 76 Ill. 2d 171, 183, 390 N.E.2d 867, 872 (1979).

This Court consistently has held under these circumstances that

if any judgment is properly reviewable under 28 U.S.C.A. § 1257

(West 1966) it is that of the intermediate court, not the denial

of leave to appeal. Michigan- Wisconsin Pipe Line Co. v. Calvert,

347 U.S. 157, 160 (1954); Interstate Circuit, Inc. v. City of Dallas,

390 U.S. 676, 678 n.1 (1968). Thus, to the extent Larrance seeks

review of the Illinois Supreme Court order, the petition should

be dismissed for lack of jurisdiction.

B. The Questions Presented Are Not

Reviewable Because They Compelil Re-

Examination Of The State Court’s Find-

ings Of Fact.

Both questions presented purport to be grounded on the

premise that the Commission actively interfered with Larrance’s

charge filing. (Pet. Op. Br. at i.) As a result, the Court cannot

. address the merits of Larrance’s due process claim without first

reviewing the appellate court’s findings of fact on this pivotal

hae

issue. The premise that the Commission actively interfered is

untenable. The appellate court, with the benefit of the complete

common law record, found:

[A]lgency representatives did not mislead the peti-

tioner. The agency position and its interpretation

of the law was correctly stated to petitioner. This

interpretation was altered by a judicial decision.

Therefore, neither the agency nor the employer

intentionally misled petitioner to his disadvantage

since both acted on the information available.

(Petitioner’s Appendix, hereinafter referred to as “App.” at 22a.)

The court further found that the agency did not treat Larrance

“unfairly.” (App. at 23a.) These findings were supported by the

record. Indeed, in the nine years since Larrance filed his charge,

no one has suggested that the information the Commission gave

him about the filing deadline was wrong. The fact that a judicial

decision retroactively modified the Commission’s interpretation

does not support Larrance’s contention that the Commission

misled him, refused to file his charge or treated him unfairly.

This Court would have to reject the findings of fact below

as a prerequisite to consideration of the asserted federal questions.

That is something the Court generally does not do and for which

there is no basis in this case. Grayson v. Harris, 267 U.S. 352,

358 (1925); See also Lloyd A. Fry Roofing Co. v. Wood, 344 U.S.

157, 160 (1952).

C. The First Question Presented Raises No

Federal Question.

Contrary to what Larrance asserts, the decision of the

appellate court does not give rise to a constitutional issue.

1. The Constitutional Right Upon

Which Larrance’s Due Process Claim

Is Premised Does Not Exist.

Larrance’s due process claim is based on an erroneous

interpretation of the Ilinois Constitution. In Section LA. of his

argument, Larrance contends that he had “an entitlement to

be free from discrimination guaranteed by the Illinois consti-

tution...” (Pet. Op. Br. at 13.) This entitlement purportedly

arises from Article I, Section 19 of the Illinois Constitution, which

provides as follows:

All persons with a physical or mental han-

dicap ... shall be free from discrimination, unre-

lated to ability in the hiring and promotion practices

of any employer.

Itt. Const. art. I, § 19. According to Larrance, “{tJhis state-created

right is the foundation for Petitioner’s claim of employment

discrimination.” (Pet. Op. Br. at 12.) The courts of Illinois,

however, disagree with Larrance’s construction of Article I,

Section 19. In Yount v. Hesston Corp., 124 Ill. App. 3d 943, 949,

464 N.E.2d 1214, 1219 (2d Dist. 1984), the court held that Section

19 “limits a claim of discrimination based on [handicap] to ‘the

hiring and promotion practices of any employer.’ ” Accordingly,

it does not encompass cases “involving termination and dis-

charge from employment.” Id. (relying on Thakkar v. Wilson

Enterprises, Inc., 120 Ill. App. 3d 878, 458 N.E.2d 985 (1st Dist.

1983) and Greenholdt v. Illinois Bell Telephone Co., 107 Ill. App.

3d 748, 438 N.E.2d 245 (4th Dist. 1982)).

Because the right upon which the petition is premised does

not exist, the writ should be denied.

2. The Circumstances Of Larrarce’s

Tardy Charge Filing Do Not Entitle

Him To Due Process Protection.

Larrance would have this Court believe that his case is

“virtually identical” to Logan v. Zimmerman Brush Co., 455 U.S.

422 (1982). (Pet. Op. Br. at 11.) This contention is baseless for

two reasons. First, Logan did not involve the 180 day charge

filing period in question. Second, Logan involved a clear case

of agency misconduct.

Logan addressed the Commission’s obligation to convene

a fact-finding conference within 120 days after the claimant filed

his or her charge. Significantly, Logan could not schedule the

conference himself within the statutorily dictated period.

Responsibility for doing so was exclusively within the control

of the agency. Responsibility for filing a timely charge, however,

is within the exclusive control of the complainant. He may submit

it on the first day after an unfair employment practice has been

committed or any day thereafter, as long as filing is accomplished

within 180 days. The Commission was statutorily obligated to

accept all charges timely filed. Thus the 180 day charge filing

period is fundamentally different than the time requirement

involved in Logan.

This Court has acknowledged the distinction. Although it

held that Logan, whose charge was timely, could not be deprived

of his constitutionally protected property interest without an

opportunity to present his claim of entitlement, the majority

cautioned: “This is not to suggest, of course, that the State must

consider the merits of the claim when the claimant fails to comply

with a reasonable procedural requirement, or fails to file a timely

charge.” 455 U.S. at 434 n. 7. The court further held:

Obviously, nothing we have said entitles every civil

litigant to a hearing on the merits in every case.

The State may erect reasonable procedural require

ments for triggering the right to an adjudication,

be they statutes of limitations, [citation omitted] or,

in an appropriate case, filing fees. [citation omitted]

And the State certainly accords due process when

it terminates a claim for failure to comply with a

reasonable procedural or evidentiary rule.

Id. at 437. In his separate opinion, Justice Blackmun, joined by

Justices Brennan, Marshall, and O’Connor, agreed that: “Logan

does not and could not quarrel with the requirement that

complainants file their charges in a timely fashion.” Jd. at 441.

Thus the due process right the Court recognized in Logan does

not arise here because there was no timely charge. Although

Larrance contends that the Commission sat on his charge, that

claim is untenable in view of the fact that the Commission

complied with all prevailing legal requirements. Unlike Logan,

Larrance cannot point to a statutory requirement that the

Commission breached.

As an additional point of distinction, Logan was a clear

case of agency misconduct. The Commission simply failed to

convene a fact-finding conference within 120 days. In contrast,

and as the appellate court found, agency representatives did not

mislead Larrance or treat him unfairly. Under these

circumstances Logan is inapt, and the due process issues which

arose there are absent.

3. Because Larrance Had Counsel

Within The 180 Day Period, No Due

Process Issue Arises.

The relief Larrance ultimately seeks, forgiveness for his

untimely charge filing, is unavailable because he had a lawyer.

As set forth in Country Companies’ Statement of the Case,

Larrance engaged Jon Robinson as early as October 3, 1979.

Although Larrance claims he did not hire Robinson to attend

to his Commission claim, the record belies this assertion. In

answers to interrogatories, submitted under oath, Larrance

confirmed that Robinson was consulted “regarding his claim of

handicap discrimination” on October 3, 1979 and that he had

two phone calls and two personal visits with Robinson regarding

his “‘claim of handicap discrimination” before that date.

(Larrance’s Answers to Interrogatories 1 and 2.)

As a matter of law, a claimant may not overcome a tardy

charge filing if he consulted counsel during the statutory filing

period. Leite v. Kennecott Copper Corp., 558 F. Supp. 1170, 1173-

74 (D. Mass. 1983), aff'd, 720 F.2d 658 (1st Cir. 1983); Keyse v.

Cal. Tex. Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978); Needham uv.

Beecham, Inc., 515 F. Supp. 460, 467 (D. Maine 1981); Hamel

v. Prudential Ins. Co., 640 F. Supp. 103, 105 (D. Mass. 1986).

In Leite, the claimant’s argument that the responsible agency

had misinformed him regarding the statute of limitations did

not prevent the court from granting the defendant’s motion for

summary judgment. Similarly, in Hamel, the court held:

Conceeding [sic] for the purposes of this motion that

the federal agency committed some administrative

error in delaying preparation of the charge, this did

not relieve Hamel’s counsel of the ultimate respon-

sibility of monitoring his client’s claim. That is

precisely what a lawyer is paid to do. It is the job

of the lawyer, not the agency, to keep the client’s

claim from going stale. In circumstances such as

this, equity does not require tolling the limitations

period . . . Civil rights laws need not be interpreted

so as to make them traps for the unwary. On the

other hand, neither need the laws be interpreted so

as to protect those who ought know better from their

own indolence.

640 F. Supp. at 105.

The evidence below established that Larrance and Robinson

intentionally withheld the charge while attempting to negotiate

with Country Companies over renewal commissions. On October

4, 1979, Robinson wrote to Country Companies’ Executive Vice

President, Duane Miller. In that letter, Robinson stated:

In addition, the Illinois Fair Employment Practices

Commission has been contacted regarding the basis

for his [petitioner’s] termination, and we would like

to pursue this if your company is not willing to pay

him the three percent (3%) commission on renewals.

(Resp. Ex. 2; R. Vol. VII at 117.) This letter confirms not only

that Robinson knew about Larrance’s discrimination claim, but

that he was authorized to write about it and, with Larrance’s

blessing, elected to use the claim as a bargaining chip to exact

renewal commissions from Country Companies. Thus, unlike

Logan, Larrance cannot in good faith assert that his claim went

stale for reasons beyond his control.

Because Larrance, after retaining counsel, intentionally

delayed filing his charge to increase his bargaining position with

Country Companies, he cannot establish a deprivation of due

process.

4. There Is No Basis For Larrance’s Con-

tention That The Commission Has

Unlawfully Hindered Other Claimants.

Larrance tries to enhance his petition by suggesting that

“thousands” of claimants have had their claims lost “because

the FEPC failed to act within the jurisdictional limit.” (Pet. Op.

Br. at 11.) This argument brutally misconstrues the record.

Larrance relies exclusively on an amicus brief filed by someone

named Jerald Beene. (App. at 28a.) The brief nakedly asserts

that approximately five thousand people may lose their rights

“through no fault of their own” if by filing the Commission’s

intake form, called a Complainant Information Sheet (“CIS”),

they are not deemed to have filed a timely charge.

Larrance argued below that his completed CIS form should

have been deemed a timely charge. The appellate court disagreed.

Larrance has not challenged that finding in his petition.

Accordingly, the procedure which purportedly has caused others

to lose their claims is not at issue before this Court. Even if

it were, Larrance cannot successfully assert that if he lost any

rights it was through no fault of his own.

D. The Second Question Presented Fails

to Raise A Federal Question.

Larrance’s question regarding the retroactive application of

Board of Governors Of State Colleges And Universities For

Northeastern Illinois University v. Rothbardt. 98 Ill. App. 3d

423, 424 N.E.2d 742 (4th Dist. 1981), appeal denied, No. 55433

(Nov. 30, 1981), does not create a federal question. This Court

has held repeatedly that the Constitution neither prohibits nor

requires retroactive application of judicial decisions. As Justice

Cardozo wrote in Great Northern Railway Co. v. Sunburst Oil

and Refining Co., 287 U.S. 358, 364 (1932): “We think the federal

constitution has no voice upon the subject.” See also Linkletter

v. Walker, 381 U.S. 618, 629 (1965). In light of this authority,

the second question presented fails to raise a federal question

and thus is not one over which this court has jurisdiction under

28 U.S.C.A. § 1257 (West 1966).

Petitioner’s reliance on Chevron Oil Co. v. Huson, 404 U.S.

97 (1971), is misplaced. In Chevron, the court considered the

retroactivity of its own Rodrigue decision, not the retroactivity

of an intermediate state court decision. Nowhere in Chevron did

the court mention due process. Moreover, the retroactivity

question in Chevron required interpretation of the Continental

Shelf Lands Act, 43 U.S.C. § 1331 et seg. Hence, the petitioner

there was able to present a federal question.

Even if the Court had a jurisdictional basis for reviewing

the retroactivity of Rothbardt, Larrance could not establish that

the appellate court exercised its discretion improperly. Rothbardt

neither overruled clear past precedent nor was a case of first

impression whose resolution was not clearly foreshadowed. The

charge filing statute at issue refers neither to the last day worked

nor notice of termination. Rather, it states that a charge must

be filed within 180 days “after the date that an unfair employment

practice allegedly has been committed ...” In Rev. Srar. ch.

48, para. 858 (1979). This language clearly is susceptible to the

interpretation articulated in Rothbardt. Indeed, this Court twice

has held that similar statutory language supports the Rothbardt

construction. See Del. State College v. Ricks, 449 U.S. 250 (1980);

Chardon v. Fernandez, 454 U.S. 6 (1981).2 In both Ricks and

Chardon the Court held the complaints time-barred, thus giving

its decision retroactive effect.

Larrance also fails to cite a single judicial decision, state

or federal, upon which he relied in determining when to file his

charge. Indeed, he claims that the Commission unilaterally

decided when the charge would be accepted. Even if there were

evidence of reliance and a case which justified it, Larrance’s

reliance argument would be unavailing due to the fact that he

had a lawyer.

Lacking a federal basis, Larrance’s retroactivity question

is insufficient to invoke this Court’s jurisdiction.

E. Larrance’s Asserted Due Process

Claims Are Logically Incompatible.

Larrance’s contentions that (1) like Logan he was the victim

of active agency interference and (2) the retroactive application

of Rothbardt violated his due process are analytically irrecon-

cilable. His first argument is premised on the claim that the

Commission caused his charge to be untimely by letting it lapse

2 Before Larrance filed his charge, at least two federal courts of appeals

foreshadowed Rothbardt by holding that the time for filing a charge

of employment discrimination began to run upon notice of the adverse

employment decision. See Bireline v. Seagondollar, 567 F.2d 260 (4th

Cir. 1977), cert. denied, 444 U.S. 842 (1979); Jackson v. Hayakawa, 605

F.2d 1121 (9th Cir. 1979); cert. denied, 445 U.S. 952 (1980); Abramson

v. Univ. of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979).

or by refusing to file it. His second argument presumes that the

Commission complied with “existing law” (Pet. Op. Br. at 21),

but that the law changed to Larrance’s detriment. Larrance

cannot have it both ways. Either the Commission actively

interfered with his charge filing or it did not. The fact that the

Commission complied with “existing law,” as Larrance acknowl-

edges, compels the conclusion that there was no active inter-

ference. Yet because, as established above, retroactive application

of Rothbardt has no due process implications, Larrance’s second

argument topples as well. The Court is left with no justification

for granting the writ.

CONCLUSION

This Court lacks jurisdiction over the questions presented.

Assuming jurisdiction exists, Larrance’s reasons for granting the

writ are groundless. Accordingly, the writ should be denied.

Respectfully submitted,

Macon County Farm Bureau, CountRY

CasuaALty INSURANCE Company, COUNTRY

INSURANCE Company, CounTRY MUTUAL

INSURANCE Company, Country LIFE

INSURANCE CoMPANY, AND CoUNTRY

CaPiraL MANAGEMENT COMPANY

BERNARD HarrRo_p