# Opposition Brief — Larrance v. Illinois Human Rights Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1054

## Text

“ 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

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

i
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.

is

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

iv

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,
v.
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.

——

2
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"

3

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.

———

4

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.

5

(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

6

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-

7

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,

8

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

9

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

10

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

11

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

12

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).

13

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

Counsel of Record

WILDMAN, Harro_p,

ALLEN & Drxon

One IBM Plaza, Suite 3000
Chicago, Illinois 60611
(312) 222-0400

Counsel for Respondents

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0714%3A2. Public record. Not legal advice.