Opposition — Bruno v. Kalmich

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eo re a 1s el

OCT 14 1977

ica RODAK, JR., CLERK

No. 77-507

Iu the

Supreme Court of the Anited States.

Ocroser Term 1977

Petitioner,

vs.

HAYIM KALMICH,

Respondent.

Ow Pertrrion For A Writ Or CERTIORARI To Tue

Unirep Stares Court Or AppseAts For Tue SEVENTH

Crecoulr.

BRIEF FOR THE RESPONDENT IN OPPOSITION

Rosert HanpELsMAN

Frep F. Herzoa

Norman HANDELSMAN

69 W. Washington

Suite 1150

Chicago, Illinois 60602

(312) 726-5100

Counsel for Respondent.

a LE EE a

The Scheffer Press, Inc.—(312) 263-6850

INDEX

PAGE

EET RETNA enor ae 1

ER ee a 1

| Oe cE 2

I a ccldetaltceteiiadiinaniais 4

TERT aE a nO aE 6

I i as eeinsseninennenmiiadtiniin 10

TasLe or Cases

Adickes vs. Kress and Co., 398 U.S. 144 (1970) ............ 8

Bishop vs. Wood, 426 U.S. 341 (1976) u....cccecseesceseeeees 7

Bournias vs. Atlantic Maritime Co., 220 F.2d 152

I i ail ae isisicoiniainisinniididlniiase 9

Commissioner of Internal Revenue vs. Estate of

SN A GORI SE III cntne cccesnnseniteeniaseonensenneosemansesiie 7

eo ge ae Se 8S SS ES een 7

Davis vs. Mills, 194 U.S. 451 (1904)... eee 6, 7,9

Doran vs. Salem Inns, Inc., 422 U.S. 922 (1975) ........ 8

Evey vs. Mexican Central Ry. Co., 81 F. 294 (5th

TR Ree a a 9

Guaranty Trust Co. vs. York, 326 U.S. 99 (1945) ........ 7

Hamilton-Brown Shoe Co. vs. Wolf Bros. and Co., 240

I a cepeesibidiiaieetacianneanenenions 6

Huntington vs. Attrill, 146 U.S. 657 (1892) ..ccccccccccsssu. 9

Kelly vs. Dunne, 344 F.2d 129 (ist Cir. 1965) ............ s

PAGE

Maki vs. George R. Cooke Co., 124 F.2d 663 (6th

SR. BD cenitererennesteernsenicstncesenteneneimmemnisetesenennmemanen 9

Minute Maid Comp. vs. United Foods, Inc., 291 F.2d

ee Se Gy BD seieetcceemeienntenndiatnniitonnennn 8

Partenweederei MS Belgano vs. Weigel, 313 F.2d 423

GIA: IE ‘Sibchteiadicaaiiersimesnnnasinbiceinanieneneieesenetenies 8

Slaker vs. O’Commor, 278 U.S. 188 (1929) ...........00000.. 8

TasLe or STaTuTEs

Article 134(a) of the Yugoslavian Criminal Code ...... 6,8

Sec. 20 of the Yugoslavian Statute of Limitations .... 6, 8,9

In Tue

SUPREME COURT OF THE UNITED STATES

Octoser Term 1977

No. 77-507

KARL BRUNO,

Petitioner,

vs.

HAYIM KALMICH,

Respondent

——————————_—_—_—_—_—_—_—_—_——===[=_—_=[===[=[=[=[=[__=[=[[_[=================__=

On Petition For A Writ Or Certionan: To THe

Unrrep States Cover Or ApprAts For Tue Seventu

Cracurr.

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the District Court is reported at 404

F.Supp. 57 (N.D.Ill. 1975).

The opinion of the Court of Appeals is reported at

553 F.2d 549 (7th Cir. 1977).

QUESTIONS PRESENTED

1. Whether the issue presented by the applicability of

a Yugoslavian statute of limitations is the type of issue

which this Court will hear.

ae Ook

2. Whether this Court will ‘review a matter which

basically involves the determination of state law by the

Court of Appeals.

3. Whether this Court will review a judgment which

is not final.

4. Whether this Court will review a question which

was not argued, or ruled upon, in the Court of Appeals.

5. Whether the opinion of the Court of Appeals is

consistent with established precedents.

STATUTES INVOLVED

Article 125 of the Yugoslavian Criminal Code

Whoever in violation of the rules of international

law at the time of war, armed conflict or occupa-

tion, orders or executes willful killings, tortures or

inhuman treatment of the civilian population, in-

cluding therein biological experiments, causing great

suffering or serious injury to body or health; un-

lawful deportation, transfers, forcible denationaliza-

tion or conversion of the population to another

faith; rape or compulsion to prostitution; use of

measures of intimidation and terror, taking of

hostages, collective penalties, unlawful taking to con-

centration camps and other unlawful confinements,

deprivations of rights to a fair and impartial trial;

compulsive enlistment in the armed forces of an

enemy power, in its intelligence service or adminis-

tration; coercion to compulsive labour; exposition

of the population to starvation, confiscation of prop-

erty, pillage, unlawful and arbitrary destruction or

large-scale appropriation of property not justified

by military needs, imposition of unlawful and dis-

proportionately large contribution and requisitions,

devaluations of domestic currency, or the unlawful

issuance of currency, .... shall be punished by strict

imprisonment for not less than five years or by

death penalty |

Article 134(a) of the Yugoslavian Criminal Code

Criminal prosecution and enforcement of punishment

for crimes provided for by Articles 124-128 of the

present Code are not subject to the statute of limita;

tion. |

See. 1 of the Law Concerning the Treatment of Pen

erty Abandoned During the War or Property Take

Away From the Owners by the Enemy or its Helpers |

All properties of physical persons and le

entities in the territory of the Federal People’s

Republic of Yugoslavia which had to be abandon

by their owners or holders during the occupation

of the country; property taken away from su

persons against their will by the occupying forre

and its helpers, with or without compensation, for

racial, religious, national or political reasons; as well

as property which under the pressure of the occupy-

ing force, by legal acts or otherwise, passed into

the hands of third parties, shall be returned to the

respective owners or tenants immediately, regardless

of who holds their property and on what grounds,

on the day when this Law becomes effective. ( August

16, 1946).

Property shall not be considered abandoned if

the absentee owner left an authorized agent. Citizens

of the F. P. R. Y. residing abroad who were not

registered with the representatives of the F. P. RB. Y.

in the state of their residence and who were not

willing to comply with the request for their return

-home shall not be able to request the return of

property through an authorized agent.

If property was destroyed, damaged or could not

be found, the owner may bring action for damages

— ven

against responsible persons without losing the right

to claim war damage.

Property, in the sense of the present Law, means

especially real property, such as land, houses, agricul-

tural farms, forests, industrial enterprises with all

installations; (it also means) personal property, such

as furniture, securities, jewelry, claims, shares and

partnership interests, copyrights, rights of industrial

property, shares with their inventories, and other

rights in property.

Sec. 20 of the Yugoslavian Statute of Limitations

If the damage was caused by a criminal act, and a

longer period of time was provided for the prosecu-

tion of a crime, then an action for the recovery of

damages shall be barred when the time for the prose-

cution of the crime expires.

The stalling of the statute of limitation for the

prosecution of a crime entails the stalling of the

statute of limitation for a (civil) action to recover

damages.

The same rule applies to an action for preventing

the running of the statute of limitation.

STATEMENT OF THE CASE

The instant petition involves a diversity case instituted

in the United States District Court for the Northern

District of Illinois by Hayim Kalmich (respondent here),

a citizen of Quebec, Canada, against Karl Bruno (peti-

tioner here), a citizen of Illinois. Respondent’s complaint

alleges that petitioner, while serving with the General

Plenipotentiary for the Eccnomy in Serbia, an arm of

the Nazi occupation forces in Yugoslavia during World

War II, confiscated respondent’s textile-importing busi-

ness solely because respondent was of the Jewish faith.

The complaint also alleges that, upon the defeat of the

— oe

—

Nazi occupation forces in Yugoslavia, petitioner fled that

nation “for places unknown to the plaintiff” in order to

avoid the consequences of his wrongdoing and that

respondent located petitioner in Chicago, Illinois in 1972.

Respondent’s complaint was filed on November 6, 1974.

On October 14, 1975, the District Court dismissed thie

complaint. On April 25, 1977, the Court of Appeals for

the Seventh Circuit reversed the dismissal order and

remanded the matter for further proceedings. Respon-

dent’s petition for rehearing was denied on June 28,

1977, and the mandate of the Court of Appeals issued

on July 12, 1977.

THE ISSUE PRESENTED BY THE APPLICABILITY

OF A YUGOSLAVIAN STATUTE OF LIMITATION IS

NOT THE TYPE OF ISSUE WHICH THIS COURT

WILL HEAR.

The opinion of the Court of Appeals concluded that

Article 134(a) of the Yugoslavian Criminal Code and

Sec. 20 of the Yugoslavian statute of limitations were

“specifically directed” to the cause of action to warrant

their application in Illinois, as required by Davis v. Mills,

194 U.S. 451, 454 (1904).

Respondent respectfully suggests that an issue in-

volving the applicability of a Yugoslavian statute of

limitations is not the type of mutter which this Court

will hear. The writ of certiorari is granted “only in cases

of peculiar gravity and general importance”. Hamilton-

Brown Shoe Co. v. Wolf Bros. and Co., 240 U.S. 251, 258

(1916). The instant case does not meet this standard.

THIS COURT WILL NOT REVIEW A MATTER

WHICH BASICALLY INVOLVES THE DETERMINA-

TION OF STATE LAW BY THE COURT OF APPEALS.

Petitioner has raised three points which, in his opinion,

merit review by this Court: (1) that the Court of

Appeals’ conclusion that the Yuguslavian limitation pro-

visions are “specifically directed” to the cause of action

to warrant their application in Illinois is inconsistent

with this Court’s opinion in Davis v. Mills, supra, 194

ian

U.S. 451, 454 (1904); (2) that other provisions of the

Yugoslavian statute of limitations should be applied

(Pet., P. 10); and (3) the foreign cause of action cannot

be enforced in Illinois as it constitutes a penal statute.

These points do not merit review by this Court as

they all involve questions of interpretation and applica-

tion of state law by the Court of Appeals. As this is a

diversity case, the Court of Appeals sat as “another

court” of Illinois. Guaranty Trust Co. v. York, 326 U.S.

99, 108 (1945). This Court will “ordinarily accept the

determination of local law by the Court of Appeals”.

Commissioner of Internal Revenue v. Estate of Bosch,

387 U.S. 456, 462 (1967).

Petitioner’s contention that the foreign cause of action

cannot be enforced in Illinois as it constitutes a penal

statute was rejected by the District Court (404 F.Supp.

at 61-63 (App. 4a-7a)) and by the Court of Appeals

(553 F.2d at 552 (App. 23a)). Therefore. this contention

will not be reviewed here. This Court will accept the

“interpretation of state law in which the District Court

and the Court of Appeals have concurred even if an

examination of the state law issue without such guidance

might have justified a different conclusion”. Bishop v.

Wood, 426 U.S. 341, 346 (1976). Such determinations

below “generally render unnecessary review of their

decisions in this respect”. Cort vy. Ash, 422 U.S. 66, 73

(fn. 6) (1975).

III

THIS COURT WILL NOT REVIEW A JUDGMENT

WHICH IS NOT FINAL.

The judgment of the Court of Appeals reversed. the

order of the District Court which dismissed respondent’s

complaint and remanded the matter for further proceed-

ings. Therefore, it did not finally dispose of the case:

a judgment of a Court of Appeals which reverses a

decision of the District Court and remands the matter

for further proceedings is not “final”. Slaker v. O’Connor,

278 U.S. 188, 189 (1929). This Court prefers to review

only judgments which finally dispose of a matter. See

Doran v. Salem Inn, Inc., 422 U.S. 922, 927 (1975).

THIS COURT WILL NOT REVIEW A QUESTION

WHICH WAS NOT ARGUED, OR RULED UPON, IN

THE COURT OF APPEALS.

Petitioner’s contention (Pet., P. i0) that other sections

of the Yugoslavian statute of limitations are applicable

here was not argued, or ruled upon, in the Court of

Appeals.* Therefore, this point will not be reviewed

here. This Court will not consider contentions which were

not raised or considered in the Court of Appeals. Adickes

v. Kress and Co., 398 U.S. 144, 147 (fn. 2) (1970).

THE OPINION OF THE COURT OF APPEALS I8 CON-

SISTENT WITH ESTABLISHED PRECEDENTS.

The Court of Appeals’ conclusion that Article 134(a)

of the Yugoslavian Criminal Code and Sec. 20 of the

Yugoslavian statute of limitations is “specifically di-

* This point was raised for the first time in the Court

of Appeals in the petition for rehearing. However, a

petition for rehearing cannot be used to present issues

which were not raised in the appeal-in-chief. Kelly v.

Dunne, 344 F.2d 129, 135 (1st Cir. 1965); Partenweedere:

MS Belgano v. Weigel, 313 F.2d 423, 424 (9th Cir. 1962) ;

Minute Maid Corp. v. United Foods, Inc., 291 F.2d 577,

585-586 (5th Cir. 1961).

_—

rected” to the cause of action is consistent with the

opinions in Maki v. George R. Cooke Co., 124 F.2d 663

(6th Cir. 1942), cert. den., 316 U.S. 686, and Bournias

v. Atlantic Maritime Co., 220 F.2d 152 (2d Cir. 1955).

In Maki, the Court of Appeals for the Sixth Circuit

held that the requirement of specificity, as enunciated

in Davis v. Mills, supra, 194 U.S. 451, 454 (1904), was

satisfied by a limitation provision which applied to all

statutory causes of action. 124 F.2d at 666. Citing Mak,

the Court of Appeals for the Second Circuit held in

Bournias :

(T)he test of “specificity” was found satisfied by

a separate statute impesing a limitation on all statu-

tory rights. 220 F.2d at 155.

Therefore, accepting petitioner’s contention (Petition,

P. 12) that Sec. 20 of the Yugoslavian statute of limita-

tions is “applicable to any civil cause of action which

occurred as a result of criminal acts”, it is clear that

the Court of Appeals properly concluded that the Yugo-

slavian limitation provisions were “specifically directed”

to the cause of action.

Respondent’s contention that the foreign cause of

action cannot be enforced in Illinois as it constitutes

a penal statute is also inconsistent with established

precedents. Primarily, as this is an action by a private

individual, with damages accruing to his own personal

benefit, it cannot properly be argued that enforcement

of a foreign penal statute is sought. See Huntington

v. Attrill, 146 U.S. 657, 666-667, 668, 673-674 (1892).

Furthermore, a foreign criminal statute which also pro-

vides a civil cause of action is not a penal statute. See

Evey v. Mexican Central Ry. Co., 81 F. 294, 297-298, 306

(5th Cir. 1897), cert. den., 167 U.S. 746.

= =

CONCLUSION

For the foregoing reasons, respondent respectfully re-

quests this honorable Court to deny the petition for the

writ of certiorari.

Respectfully submitted,

Rospert HANDELSMAN

Frep F. Herzog