Amicus Curiae Brief — Larrance v. Illinois Human Rights Commission

: , Supreme Court, US.

ius FILED

_ FEB 2 1989

Be ' | JOSEPH F. SPANIOL, UR,

No. 88-1135 CLEenn

ro

—

_-—-_-.

In The

SUPREME COURT OF THE UNITED STATES

- October Term, 1988

CHARLES LARRANCE,

Petitioner,

Vv. 7

THE ILLINOIS HUMAN RIGHTS

COMMISSION, THE ILLINOIS DEPARTMENT

OF HUMAN RIGHTS, MACON COUNTY FARM BUREAU,

COUNTRY CASUALTY INSURANCE COMPANY, COUNTRY

INSURANCE COMPANY, COUNTRY MUTUAL INSURANCE

COMPANY, COUNTRY LIFE INSURANCE COMPANY,

and COUNTRY CAPITAL MANAGEMENT COMPANY,

Respondents.

Petition for Certiorari to the

Supreme Court of the

State of Illinois

BRIEF AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

GARY H. PALM

Counsel of Record

EDWIN F. MANDEL LEGAL AID CLINIC

of the University of Chicago Law School

and United Charities of Chicago

6020 South University Avenue

Chicago, Illinois 60637

(312) 702-9611

Attorney for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES... cccccccccccccccce

PRELIMINARY STATEMENT... 2s eeeeeeeceeceee

INTEREST OF AMICUS CURIAE.......csceeee.

STATEMENT OF FACTS... cccccccccccccee coe.

ARGUMENT... cccccccccccccscccccccccsccecs oe

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THE DECISION BELOW

ALLOWING NULLIFICATION OF A

CLAIM DUE TO FAILURE BY THE

STATE AGENCY TO COMPLY WITH

STATUTORY TIME LIMITS IS IN

DIRECT CONFLICT WITH THIS

COURT'S DECISION IN

LOGAN V. ZIMMERMAN BRUSH CO...

II. CERTIORARI SHOULD BE GRANTED

TO RECTIFY THE ILLINOIS

AGENCIES' AND COURTS' REFUSAL

TO COMPLY WITH LOGAN..........

CONCLUSION... cccccccccccccscccccscccccce

CONSENTS TO FILING OF AMICUS BRIEF

CERTIFICATE OF SERVICE

10

TABLE OF AUTHORITIES

CASES Page

Bennett v. Tucker, 827 F.2d 63 (7th Cir.

1987) ee @eeee#e#@*# @eeeeeeseee3s2veee#ee#ee#see*e7nee#@ee#ee#ee#ee#eereeee#e#ee#e#e#e# 2

Board of Governors v. Illinois Fair

Employment Practices Commission, 78 I1l.

2d 543% 399 N.E.2d 590 (1979)... eeeetetee eeee 7

Logan v. Zimmerman Brush Company, 455

Usb 422 PEPER Db esse teteceesae eeeeee#e# e*eee#e? 1

Love v. Pullman Co., 404 U.S. 522

CEPR ces ec eneesece er ee Lebhheeseevéeeasee 6

kabzak v. County of Berks, 815 F.2d 17

(3d ot BOB ecw csccese e@eeeeee#s? eeee#eee#ee#8e#¢# ee 6

Steffen v. Meridian Life Insurance Co.,

859 F.2d 534 (7th Cir. BEOO sé cescceccecnses 6

Tillman v. City of Boaz, 548 F.2d 592

(Sth « TP koe 2 era errs e*seeeoeesee5see#ee#e?#e# ceca

STATUTES

Illinois Human Rights Act, Ill. Rev. Stat.,

CR. 68, 7-101 et seq. (1987) eeeeeeeee eeee 2

PRELIMINARY STATEMENT

In the decision below, the Illinois

courts have again allowed a state-created

cause of action for discrimination to be

destroyed because of the failure of the

agency to comply with statutory time limits.

As such, the decision below violates the

Fourteenth Amendment under this Court's

unanimous holding in Logan v. Zimmerman

Brush Co., 455 U.S. 422 (1982), a case which

Illinois agencies and courts have ignored.

Certiorari should be granted so that victims

of discrimination in Illinois receive

nearings on the merits rather than losing

their claims as a result of the actions of

the state agency.

INTEREST OF AMICUS CURIAE

The Edwin F. Mandel Legal Aid Clinic

("the Clinic") has for the past 20 years

devoted a significant portion of its

practice to the representation of victims of

employment discrimination. Its clients have

frequently suffered from the failure of the

state agency to comply with required

procedures and have a strong interest in

seeing that the law governing those claims

is correctly applied. The Clinic

represented the plaintiff in Logan, as well

as the plaintiffs in Bennett v. Tucker, 827

F.2d 63 (7th Cir. 1987), discussed infra.

The Illinois courts and biases ata have

repeatedly refused to follow Logan.

Instead, they continue to allow the failure

of state employees to comply with statutory

time limits to negate individuals' property

rights in statutorily-created causes of

action.

The Illinois Human Rights Act, like the

Fair Employment Practices Act which preceded .

it ("the Act"), is the sole state remedy for

persons Claiming to be victims of

discrimination. It is the Clinic's

experience that employment discrimination

claimants generally do not seek counsel to

represent them until sometime after their

charge has been filed with the state agency.

BREESE

Indeed, the purpose of the administrative

procedure for prosecuting claims of

employment discrimination was to encourage

claimants to bring their claims pro se. In

the decision below, the Illinois courts have

yet again penalized pro se plaintiffs for

the actions of the state agency. The

Clinic's cYients have a strong interest in

ensuring that Illinois courts do not

continue to ignore Logan.

STATEMENT OF FACTS

For purposes of the petition, the

Following facts are relevant (references are

to the opinion of the Fourth District of the

Illinois Appellate Court's decision

reprinted in the appendix accompanying

Petitioner's brief):

lL. Petitioner was discharged for allegedly

discriminatory reasons. App. lé6a.

2. Petitioner attempted to file a charge

with the Illinois Fair Employment Practices

Commission, now the Illinois Department of

Human Rights ("the Department") well within

the statutory time limit. App. l6a.

a. Although the Act created an absolute

right to file the charge, the Department's

then applicable procedures did not permit

petitioner to file his charge until the

Department had completed its investigation.

App. 1/7a-18a.

4. By the time the Department completed

its investigation, the statutory time period

ror filing a charge had expired. App. 19a.

2 The Illinois courts held that

petitioner could not pursue his charge

because it had not been timely filed. App.

22a-23a, 26a.

ARGUMENT

CERTIORARI SHOULD BE GRANTED BECAUSE

THE DECISION BELOW ALLOWING

NULLIFICATION OF A CLAIM DUE TO FAILURE

BY THE STATE AGENCY COMPLY WITH

STATUTORY TIME LIMITS IS IN DIRECT

CONFLICT WITH THIS COURT'S DECISION IN

LOGAN V. ZIMMERMAN BRUSH CO.

The Illinois Supreme Court, by refusing

to review the Appellate District's decision,

has destroyed petitioner's statutory claim

due tc the failure of the state agency to

comply with statutory time limits, without

ever allowing that claim to be considered on

the merits. Although petitioner complied

with the Department's procedural

requirements, his claim was terminated

because the Department denied him his

Statutory right to file a charge within the

applicable time limit. As argued in the

Petition for Certiorari, penalizing

petitioner for the state's failure is in

direct conflict with Logan. Therefore,

certiorari should be granted. Supreme Court

Rule 17.1({c).

Moreover, aS was the case in Logan, the

decision below “unambiguously divides

Cclaims--and thus, necessarily, claimants--

into two discrete groups that are accorded

radically different treatment." 455 U.S. at

438-439. Those which the Department timely

files are adjudicated; those which it does

not are terminated. As Justices Blackmun,

Brennan, Marshall and O'Connor concluded in

Logan, the random nature of the state's

failure to comply with its statutory

requirements--resulting in the destruction

of the claim--violated the Equal Protection

Clause of the Fourteenth Amendment. 455

U.S. at 441-442. Indeed, as Justice Powell

and then-Justice Rehnquist pointed out in

Logan, the creation of two classes of claims

depending solely on whether the state agency

complied with its time limits bears no

rational relationship to any legitimate

government interest. Id. at 443-444.1

d The consistent body of federal

decisions interpreting Title VII, upon which

the Act was modeled, is further evidence of

the irrationality of the decision below.

Federal courts have consistently held that

the information provided by petitioner to

the Department -- which the Department

refused to accept as a charge -- satisfies

the parallel Title VII filing requirements.

See, e.g., Love v. Pullman Co., 404 U.S.

522, 525 (1971); Steffen v. Meridian Life

Insurance Co., 859 F.2d 534, 542 (7th Cir.

1988); Rabzak v. County of Berks, 815 F.2d

17, 20 (3d Cir. 1987); Tillman v. City of

Boaz, 548 F.2d 592, 594 (5th Cir. 1977).

6

II. CERTIORARI SHOULD BE GRANTED TO RECTIFY

THE ILLINOIS COURTS' AND AGENCIES'

REFUSAL TO COMPLY WITH ,LOGAN.

The Illinois human rights agencies and

the Illinois courts have ignored this

Court's decision in Logan. This Court

should grant the Petition for a Writ of

Certiorari so that victims of discrimination

in Illinois are not deprived of their

constitutional rights to due process and

equal protection.

The Department frequently takes

responsibility for various aspects of

processing the charge because most

complainants are proceeding pro se.

However, timid Kabibeet tence, negligence or

bureaucratic inefficiency, the Department

sometimes misses a deadline or otherwise

fails to comply with a required procedure.

Despite the fact that the claimant was not

at fault in the Illinois agencies and courts

have consistently penalized them for the

Department's failures and held that the

charge is barred. Inexplicably, this

pattern of decisions has not changed since

Logan.

In Logan, the Illinois Supreme Court

had held that the Department's failure to

conduct a fact finding conference within 120

days deprived the agency of jurisdiction and

terminated the charge. This Court reversed.

Similarly, in Board of Governors v.

Illinois Fair Employment Practices

Commission, 78 Ill. 2d 143, 399 N.E.2d 590

(1979), the Illinois Supreme Court decided

that the agency's failure to complete its

investigation within the required 180 days

deprived the agency of jurisdiction and

terminated the complainant's claim. Despite

this Court's subsequent holding in Logan,

the Department refused to reassert

jurisdiction in these cases. A federal

2 The effect of the decision below

is to absolutely destroy the statutory cause

of action of petitioner (and those similarly

Situated) as the Act does not permit a

judicial action if a charge was not timely

Filed with the Department.

8

class action was filed and the Court of

Appeals for the Seventh Circuit rejected the

Department's arguments that Logan did not

apply to these claims. Bennett v. Tucker,

827 F.2d 63, 69 (7th Cir. 1987).

Now, in this case, the Illinois courts

have once again allowed agency delay to bar

a Claim before the Department. It is

important to the victims of discrimination

in Illinois that they be able to rely on the

state agencies without fear that agency

mistakes will destroy their claims. As

noted, nearly all these complainants are

proceeding pro se--indeed, the procedures

were designed to encourage pro se

proceedings--so that there is no lawyer

watching the agency to make sure it meets

each deadline and satisfies each procedural

requirement.

While complainants may in appropriate

cases be held responsible for their own

mistakes and delays, Logan dictates that

they not be penalized for the mistakes and

delays of state employees. If complainants

lose it should be because of a decision on

the merits or because of some failure by

them. Otherwise their rights to due process

and equal protection are violated.

CONCLUSION

For the reasons stated above the

petition for a writ of certiorari should be

granted.

Dated: Chicago, Illinois

February 2, 1989

‘GARY H

Coung@l of Record

Edwin F. Mandel Legal

Aid Clinic of the

University of Chicago

Law School and United

Charities of Chicago

6020 S. University Ave.

Chicago, Illinois 60637

(312) 702-9611

10

February 2, 1989

Larrance v. Illinois Human Rights Commission,

No. 88-1135

On behalf of the 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, I hereby consent to the

filing of an amicus curiae brief on behalf of petitioner in the

above case by Gary H. Palm of the Edwin F. Mandel Legal Aid

clinic.

| A

J Ag,

James,Fiffer °

David Strauss

January 27, 1989

Larrance v. Illinois Human Rights Commission,

No. 88-1135

On behalf of the respondent, Illinois Human Rights Commission, I

hereby consent to the filing of an amicus curiae brief on behalf

of petitioner in the above case by Gary H. Palm of the Edwin F.

Mandel Legal Aid Clinic.

January 30, 1989

Larrance v. Illinois Human Rights Commission,

No. 88-1135

On behalf of the petitioner, Charles Larrance, I hereby consent

to the filing of an amicus curiae brief on behalf of petitioner

in the above case by Gary H. Palm of the Edwin F. Mandel Legal

Aid Clinic.

c

= Timothy Eaton

January 27, 1989

Larrance v. Illinois Human Rights Commission,

No. 88-1135

On behalf of the respondent, Illinois Human Rights Department, I

hereby consent to the filing of an amicus curiae brief on behalf

of petitioner in the above case by Gary H. Palm of the Edwin F.

Mandel Legal Aid Clinic.

: Z|

— VUihiin ‘ .

Shelvin Hall

that he is a member of the Bar of the Court,

and that on February 2, 1989 he caused to be

served by first class mail a copy of the

Brief Amicus Curiae on the following:

Name and Address

J. Timothy Eaton

Coffield Ungaretti Harris & Slavin

3500 Three First National Plaza

Chicago, Illinois 60602

Attorney for:

Charles Larrance

CERTIFICATE OF SERVICE

Gary Palm, attorney of record for the

Edwin F. Mandel Legal Aid Clinic, certifies

James Fiffer

Wildman, Harrold, Allen & Dixon

One IBM Plaza, Ste. 3000

Chicago, Illinois 60611

Attorney for:

Macon County Farm Bureau, Country Casualty

Insurance Company, Country Insurance

, Company, Country Mutual Insurance Company,

Country Life Insurance Company, and Country

Capital Management Company

David Strauss

Illinois Human Rights Commission

100 W. Randolph Street, Ste. 5-100

Chicago, Illinois 60601

Attorney for:

Illinois Human Rights Commission

Shelvin Hall

Illinois Human Rights Department

100 ‘W. Randolph Street

Ste. 10-100

Chicago, Illinois 60601

Attorney for:

Illinois Human Rights Department

Dated: Chicago, Illinois

February 24 1989