Petition — Abeles v. Elrod

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No.78-640 |.

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In the

Supreme Court of the United States

Octoser Term, 1978

UNITED STATES OF AMERICA EX REL. PETER O. ABELES,

Petitioner,

vs.

RICHARD J. ELROD, SHERIFF OF

COOK COUNTY, ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

JEROLD S. SOLOVY

ROBERT L. GRAHAM

TERRY ROSE SAUNDERS

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Attorneys for Petitioner

Of Counsel:

JENNER & BLOCK

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

f. cs

INDEX

PAGE

Nee ac aneutecbinisanscinane 1

SE EE 2

Is teenie 2

Constitutional and Statutory Provisions Involved ........ 3

ELLE LEA 3

Reasons for Granting the Writ oo... eeeeeeeeeeeeeeeee 7

I. This Court’s Decision in Munsey v, Clough is In-

consistent with Present Constitutional Require-

ments for Notice and Hearing and Fails to Ac-

cord with the Realities of the Extradition Process 7

A. Under Present Constitutional Standards,

Notice and Hearing’ Prior to Extradition

are Required as a Matter of Right ............ 7

B. Under Present Extradition Practices, Prior

Notice and Hearing are Also Necessary .... 11

Il. Extradition Predicated Upon a Defective Indict-

ment Which is Later Amended Cannot Proceed,

Consistent with Constitutional and Statutory

Requirements, When No New Extradition Re-

quest is Made Based Upon the New, Amended

eel sa haeeas evan ssevvaastinuicmrensecenceees 14

ES SS LS SELES ART 16

Appendix :

A. Opinion of Court of Appeals. .........20000.... App. 1

B. Opinion of District Court. .........................c0c00000 App. 9

C. Constitutional and Statutory Provisions In-

ERT SIS ESET RS a App. 14

ii

TABLE OF AUTHORITIES

Cases

PAGE

Bell v, Burson, 402 U.S. 535 (1971) oo... 10

Cafeteria & Restaurant Workers Union v. McElroy,

OT an 10

Commonwealth ex rel. Banks v. Hendrick, 430 Pa. 575,

ee nO TO i aria eae 14

Compton v. Alabama, 214 U.S. 1 (1909) we... 15

Edwards v, California, 314 U.S. 160 (1941) 000 .. 8

| ee ce uNennEe 15

Fuentes v. Shevin, 407 U.S. 67 (1972) 0... eee 10

Gagnon v. Scarpelli, 411 U.S. 778 (1973) 10

Goldberg v. Kelly, 397 U.S, 254 (1970)... 10

Goss v. Lopez, 419 U.S. 565 (1975) ...00... 8, 9, 10, 11, 14

Grannis v. Ordean, 234 U.S. 385 (1914) ow. 9

Ierardi v. Gunter, 528 F.2d 929 (1st Cir, 1976) ........ 9

Jay v. Boyd, 351 U.S. 345 (1956) on 14

Joint Anti-Fascist Refugee Committee v. McGrath, 341

Seni NE PIE: paiptedapiesbdliatbeneenhsicueidinsdilbiphicsastiecasetincbinndeoe 9

Kentucky v. Dennison, 65 U.S, (24 How.) 66 (1861) .. 11

Kirkland v. Preston, 385 F.2d 670 (D.C. Cir. 1967) ...... 9

Meyer v. Nebraska, 262 U.S. 390 (1923) 000 8

Morrissey v, Brewer, 408 U.S. 471 (1972) .......... o, 10, 11,13

Mullane v. Central Hanover Trust Co., 339 U.S. 306

(1950) . asthinapaieseahaainaiagahataaaiaiaahasendiiaiabuns si a

iii

PAGE

Munsey v. Clough, 196 U.S. 364 (1905) ............2, 6,7, 9,11

NAACP v. Alabama, 357 U.S. 449 (1958)... 8

North Georgia Finishing, Inc, v. Di-Chem, Ine., 419

EE EINE sid iakicianiacpicptiidbinachotsedeckooinecsnns tices tibcintanias 9

Paul v. Davis, 424 U.S. 693 (1976) .2................ mcsesesesceenees 7

People ex rel. Abeles v. Elrod, 27 Ill. App.3d 155, 326

N.E.2d 448 (1st Dist.), leave to appeal to the Illinois

Supreme Court denied, 60 Ill. 2d 601 (1975), cert.

meta, GRR Te, FRG CT ccnp ccietccnicnncisteccsttsinenes E

Pierce v. Creecy, 210 U.S. 387 (1908) .......... eee 15

Reed v. Colpoys, 99 F.2d 396 (D.C. Cir.), cert. denied,

I TO OO a ac ll 13

Shapiro v. Thompson, 394 U.S. 618 (1969) .0..0.0........ 8

Sniadach v. Family Finance Corporation, 395 U.S. 337

SINUIID: :csechinecsaclovaniniaincabimieidheniestiehicinlatinniitninenphixsiisbasniienianisiadess 1¢

South Dakota v. Brown, 20 Cal.3d 765, 144 Cal.Rptr.

758, 576 P.2d 473 (1978) (en bane) .......................... 12,13

Stanley v. Georgia, 394 U.S. 557 (1969)... 8

State v. Waste Management of Wisconsin, Inc., 81

Wis. 2d 555, 261 N.W.2d 147 (1978) .....0000... 15

Stirone v. United States, 361 U.S, 212 (1960) _ ........ 15

United States v. Guest, 383 U.S. 745 (1966) 00000... 8

Wisconsin v. Constantineau, 400 U.S. 483 (1971) ........ 8

Wolff v. MeDonnell, 418 U.S. 5389 (1974) 20... 8, 10

Constitutional Provisions and Statutes

Roly CI, BG Bg Bike I oancccnccensncecensssneccnsevesereees 14

U.S. Const. Amend. XIV, Section 1.0.0... eee passim

a a I» soit icich cece cea dapensicecnadicaadddachenierensicennateeus 14, 15

iv

PAGE

I. Rov, Stat. ch. Gh GE ccc lee 13

TR. Bow. Bhat. Gi. GE GED cescecceteskitiinteiccceaes 13

Wie, tet. SUMRGN scsi see

Other Authorities

Comment, Indigents’ Right to Appointed Counsel in

Interstate Extradition Proceedings, 28 Stan. L. Rev.

DODD (COTE) cccecessctsninncsenssiieersstniiiasttaenaiaiiaaialal cidade. 14

Comment, Interstate Rendition: Executive Practices

and the Effects of Discretion, 66 Yale L.J. 97 (1956) 12

K. Davis, Administrative Law 443 (6th Ed. 1977) ........ 13

In the

Supreme Court of the United States

Ocroner Term, 1978

No.

UNITED STATES OF AMERICA EX REL. PETER O. ABELES,

Petitioner,

Vs.

RICHARD J. ELROD, SHERIFF OF

COOK COUNTY, ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

' SEVENTH CIRCUIT

Petitioner, Peter O. Abeles, respectfully prays that this

Court issue a writ of certiofari to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit entered in this proceeding on August 8,

1978.

OPINIONS BELOW

The opinion of the Court of Appeals, which is unre-

ported, appears in Appendix A to this Petition. The opin-

D)

ion of the United States District Court for the Northern

District of Illinois, also unreported, appears in Appendix

B to this Petition.

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Cireuit was entered on August 8, 1978. A timely filed

petition fer rehearing and suggestions for rehearing en

bane was denied by the Court of Appeals on September

12, 1978. This petition for certiorari was filed within 90

days of that date. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

This matter is worthy of certiorari. This case affects

the administration of interstate extradition throughout

the United States. In particular, this case squarely raises

the question of whether this Court’s seventy-year old de-

cision in Munsey v. Clough, 196 U.S. 364 (1905), holding

that prior notice and hearing are not constitutionally re-

quired in extradition proceedings, should be overruled in

light of evolving due process standards.

The questions which this Court should decide are:

(1) Whether due process requires that an individual,

whose interstate extradition has been demanded, receive

notice and an opportunity to be heard by the governor of

the asylum state prior to extradition to the demanding

state.

(2) Whether interstate extradition may be predicated

upon a defective indictment which is later amended, when

no new extradition request is made based upon the new,

amended indictment.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Article IV, Section 2,

Clause 2

United States Constitution, Fourteenth Amendment,

Section 1

18 U.S.C. $3182

Ill. Rev. Stat., ch. 60, §21

Ill, Rev. Stat., ch. 60, §24

Wis. Stat. §133.01(1)

Wis. Stat, §133.01(3)

The constitutional and statutory provisions involved are

set forth in Appendix C to this Petition.

STATEMENT OF THE CASE

Petitioner filed his petition for a writ of habeas corpus

in the United States District Court for the Northern Dis-

trict of Illinois on May 12, 1976. Petitioner challenged the

constitutionality of his proposed extradition pursuant to

an extradition warrant issued by the Governor of Illinois

at the request of the Governor of Wisconsin.

The Wisconsin Proceedings

The Governor of Wisconsin based his extradition request

upon an indictment returned by the grand jury of Dane

County, Wisconsin on February 28, 1973. That indictment

charged petitioner, his employer, Waste Management of

Wisconsin, Inc. (‘‘Waste Management’’), and a second

employee, with a conspiracy ‘‘to restrain competition in

the supply or price of an article or commodity”’ in violation

of Section 133.01 of the Wisconsin statutes. It is undis-

4

puted, however, that Waste Management’s business, the

handling and disposing of solid waste matter, is a service,

which is not covered by the indictment’s reference to an

‘‘article or commodity’’.

Petitioner’s co-defendants in Wisconsin moved to dis-

miss the February, 1973 indictment, arguing that the in-

dictment charged and the Wisconsin statute prohibited a

restraint of trade in the supply or price of an article or

commodity, whereas they were engaged in the business of

providing a service. In an order and decision dated June

4, 1973, Judge Jackman, the Wisconsin judge before whom

the case was then pending, agreed that waste removal is a

service and not ‘‘an article or commodity”’’ as stated in the

indictment. However, Judge Jackman chose to disregard

the words ‘‘article or commodity’’ in the indictment and

denied the motion to dismiss. The trial before Judge Jack-

man resulted in a mistrial.

The Wisconsin case was then reassigned to Judge Ma-

loney, who granted a motion of the Wisconsin prosecutor to

amend the indictment to eliminate its reference to articles

and commodities. The indictment was thus judicially

amended by striking the words ‘‘competition in the supply

or price of an article or commodity which is the subject of’’

from paragraph 16 of the indictment.

Wisconsin’s extradition request predated the amendment

of the indictment. Wisconsin never made a request for the

extradition of petitioner predicated on this new, amended

indictment. The only request for extradition was that

predicated upon the outdated indictment, which, as even the

Wisconsin prosecutor recognized, needed to be amended

in order to charge a crime.

1 As Judge Jackman recognized :

The draftsman of the indictment was in error in describing

the conspiracy as one to restrain competition in the supply

or price of an article or commodity.

The Illinois Proceedings

At the time the grand jury returned the indictment, peti-

tioner was no longer an employee of Waste Management or

a resident of Wisconsin. On April 4, 1973, the Governor of

Wisconsin sent his extradition request, based on the Febru-

ary 28, 1973 indictment, to the Governor of Illinois. On

April 13, 1973, the Governor of Illinois summarily issued

an extradition warrant ordering petitioner’s arrest and

immediate return to Wisconsin. Petitioner received neither

notice from nor a hearing before the Governor of Illinois

prior to the issuance of the extradition warrant.

On April 30, 1973, petitioner filed a petition for a writ of

habeas corpus in the Circuit Court of Cook County, IlIli-

nois. This petition was denied and that denial was subse-

quently affirmed by the Illinois Appellate Court. People

ex rel, Abeles v. Elrod, 27 Ill.App.3d 155, 326 N.E.2d 443

(1st Dist. 1975). The Illinois Supreme Court denied leave

to appeal, 60 Ill. 2d 601 (1975), and this Court denied

certiorari. 424 U.S. 914 (1976).

The Federal Court Proceedings

Petitioner filed a petition for a writ of habeas corpus in

the District Court on May 12, 1976. As set forth in his

habeas corpus petition, petitioner challenged his extradi-

tion on the grounds that (1) the Governor of Illinois failed

to afford petitioner notice and an opportunity to be heard

prior to issuing the extradition warrant; and (2) the only

predicate for the extradition warrant was an outdated in-

dictment which failed to charge a crime.

Respondent filed a motion to dismiss the petition for

failure to state a claim for relief. On November 30, 1976,

the District Court granted respondent’s motion to dismiss.

6

The District Court held that petitioner had no right to

notice and a hearing before the Governor of Illinois prior

to the issuance of an extradition warrant. Relying on

Munsey v. Clough, 196 U.S. 364 (1905), the District Court

ruled that a hearing before the governor is not constitu-

tionally required. (App. i3.) The District Court also held

that the February 28, 1973 indictment was sufficient to

charge a crime, finding the defect in the indictment to be

a technical one which did not affect the validity of the in-

dictment as a whole. (App. 12.)

On August 8, 1978, the Court of Appeals for the Seventh

Circuit affirmed the decision of the District Court. The

Court of Appeals held that, under this Court’s opinion in

Munsey v. Clough, 196 U.S. 364 (1905), notice and a hear-

ing before the Governor of Illinois prior to issuance of an

extradition warrant is not ‘‘constitutionally mandated’”’.

The Court of Appeals declined ‘‘to break tradition with

the time honored precedent established by the decision in

Munsey.’’? (App. 8.) The Court also concluded that the

indictment serving as the predicate for the Governor’s

extradition warrant met minimum standards to charge a

crime and that ‘‘the extradition order was therefore con-

stitutionally proper.’’ (App. 7.)

REASONS FOR GRANTING THE WRIT

I.

THIS COURT’S DECISION IN MUNSEY v. CLOUGH

IS INCONSISTENT WITH PRESENT CONSTITUTION.

AL REQUIREMENTS FOR NOTICE AND HEARING

AND FAILS TO ACCORD WITH THE REALITIES OF

THE EXTRADITION PROCESS.

The lower courts in this case, citing Munsey v. Clough,

196 U.S. 364 (1905), declined to consider the merits of

petitioner’s due process claims. In Munsey, this Court

held that there was no constitutional right to a hearing

before the governor prior to extradition. However, at the

time Munsey was decided, this Court had not held due

process applicable to the range of governmental functions

it now encompasses. Moreover, Munsey did nct consider

the due process safeguards necessary to ensure that the

discretion available to the governor to grant or refuse ex-

tradition is exercised rationally and fairly in accordance

with the facts, circumstances and equities of each case.

Munsey should be overruled. Prior notice and hearing

are constitutionally required under evolving standards of

due process. Furthermore, prior notice and hearing are

particularly necessary in light of the realities of present-

day extradition practice.

A. Under Present Constitutional Standards, Notice and

Hearing Prior To Extradition Are Required As A Mat-

ter of Right.

In Paul v. Davis, 424 U.S. 693 (1976), this Court recently

re-examined the traditional concepts of liberty and prop-

8

erty interests which come within the protection of the due

process clause. As this Court commented with respect to

these interests, ‘‘we have repeatedly ruled that the pro-

cedural guarantees of the Fourteenth Amendment apply

whenever the State seeks to remove or significantly alter

that protected status.’’ 424 U.S. at 710-711. See also,

Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

One of the basic rights guaranteed by the Constitution

is the right of freedom of movement, including the right

to travel freely between states or to stay at home. See,

Shapiro v. Thompson, 394 U.S. 618, 630-631 (1969) ; United

States v. Guest, 383 U.S. 745, 757-758 (1966); Edwards v.

California, 314 U.S. 160, 178 (1941). Also encompassed

within that protected legal status are associational rights,

NAACP vy. Alabama, 357 U.S. 449 (1958), and the right to

one’s home life. Stanley v. Georgia, 394 U.S. 557 (1969) ;

Meyer v. Nebraska, 262 U.S. 390, 399 (1923).—Individuals

also have a recognized liberty interest in protecting their

integrity, reputation, and standing in the community from

being damaged because of governmental action. Goss v.

Lopez, 419 U.S. 565, 574-575 (1975); Wisconsin v. Constan-

tineau, supra, at 437.

Interstate extradition results in the deprivation of all

of these basic rights. Extradition means that an individual

loses his right to remain where he chooses and to associate

with his family and friends of his choice. At the same time,

extradition taints the good name and standing of an indi-

vidual in his community. The significant loss of liberty

which extradition entails has been aptly described as fol-

lows:

At best extradition means an extended period of

detention, involving custody pending administrative

arrangements in two states as well as forced travel in

between. At worst it means separation from a familiar

9

jurisdiction and effective denial of the support of

family, friends and familiar advisors. Jerardi v. Gun-

ter, 528 F.2d 929, 930 (1st Cir. 1976).

See also Kirkland vy. Preston, 385 F.2d 670 (D.C. Cir. 1967).

Termination of such essential liberty and property inter-

ests constitutes a grievous loss and must be preceded by

due process guarantees. Basic among these guarantees is

notice and an opportunity for a hearing, for ‘‘the right to

be heard before being condemned to suffer grievous loss of

any kind ... isa principle basic to our society.’’ Joint Antt-

Fascist Refugee Committee v, McGrath, 341 U.S. 123, 168

(1951) (Frankfurter, J., concurring); Mullane v. Central

Hanover Trust Co., 339 U.S. 306, 313 (1950); Grannis v.

Ordean, 234 U.S. 385, 394 (1914).

Notice and hearing must be afforded at a meaning-

ful time, or before the deprivation takes place. Goss v.

Lopez, 419 U.S. 565 (1975); Morrissey v. Brewer, 408 U.S.

471 (1972). In the ease of extradition, notice and hearing

must accordingly be afforded before the governor issues

his extradition warrant. Nevertheless, in this case, peti-

tioner was afforded none of those procedural safeguards,

as the extradition warrant was issued without notice or

an opportunity to be heard. The courts below, citing Mun-

sey v. Clough, 196 U.S. 364 (1905), upheld this procedure,

declining to overturn the traditional rule deeming extradi-

tion proceedings to be summary in nature.

This Court, however, has increasingly required due pro-

cess in ‘‘summary proceedings’’ involving serious depriva-

tions of liberty or property. The expanding concept of due

process was aptly noted by Mr. Justice Powell in North

Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 610

(1975) (Powell, J., concurring), where this Court struck

10

down a Georgia statute permitting prejudgment attach-

ment:

... [T|he Court in the past unanimously approved

prejudgment attachment liens similar to those at issue

in this case. [Citations omitted.] But the recent ex-

pansion vf concepts of procedural due process requires

a more careful assessment of the nature of the govern-

mental function served by the challenged procedure

and of the costs the procedure exacts of private inter-

ests. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 263-

266 (1970); Cafeteria & Restaurant Workers Union

v. McElroy, 367 U.S. 886, 895 (1961).

Thus, the fact that a proceeding has traditionally been

summary in nature no longer immunizes it from basie due

process requirements. In Sniadach v. Family Finance Cor-

poration, 395 U.S. 337 (1969), this Court accordingly held

unconstitutional prejudgment garnishment proceedings

which did not provide for notice and hearing prior to sei-

zure of an individual’s wages. Similarly, fuentes v. Shevin,

407 J.S. 67 (1972), declared unconstitutional summary

seizure of personal property under the long honored writ

of replevin. Indeed, the recent expansion of due process

by this Court has recognized a broad spectrum of interests

not previously considered to require protection. See, e.g.,

Bell v. Burson, 402 U.S. 535 (1971) (suspension of unin-

sured motorist’s driver’s license unless security posted) ;

Goldberg v. Kelly, 397 U.S. 254 (1970) (termination of

welfare benefits) ; Morrissey v. Brewer, 408 U.S. 471 (1972)

(parole revocation); Gagnon v. Scarpelli, 411 U.S. 778

(1973) (probation revocation); Wolff v. McDonnell, 418

U.S. 539 (1974) (loss of prison inmate’s good time) ; Goss

v. Lopez, 419 U.S. 565 (1975) (suspension of school student

for short time period).

Applying the expanded concept of due process to the

extradition proceedings at issue here, petitioner’s interest

11

in prior notice and hearing clearly outweighs the state’s

interest in summary proceedings. Petitioner’s interest is

in avoiding improper or unfair displacement and _ being

compelled to defend against extraterritorial claims in a

foreign forum. Petitioner should be allowed to ‘‘tell his

side of the story in order to make sure that an injustice is

not done.’’ Goss v. Lopez, supra, at 580. Moreover, the state

has no interest in depriving petitioner of his liberty with-

out assuring that his extradition is not based on an

erroneous evaluation of the facts and circumstances in his

ease. See, Morrissey v. Brewer, supra, at 483-484.

In short, under the evolving standards of due process

recognized by this Court, prior notice and hearing must

be afforded in the extradition process. This Court should

accordingly grant certiorari and overrule Munsey v.

Clough.

B. Under Present Extradition Practices, Prior Notice and

Hearing Are Also Necessary.

Under present practices, the governor of an asylum state

exercises broad discretion in granting or denying extradi-

tion in individual eases. The governor’s decision in this

regard involves a factual determination. Notice and hear-

ing should be mandatory to ensure that each individual

has an opportunity to present the facts, equities and cir-

cumstances of his case for the governor’s consideration

before extradition takes place.

In Kentucky vy. Dennison, 65 U.S. (24 How.) 66 (1861),

this Court concluded that the duty of the governor to turn

over a fugitive when the papers are in order, although

ministerial, was not mandatory, but rather ‘‘declaratory of

the moral duty’’ of the governor. Jd. at 106-107. The fram-

ers left final extradition decisions to the discretion of

12

the state executive. Governors have conducted prior hear-

ings in extradition cases and have refused extradition for

failure to satisfy constitutional requirements. Even where

constitutional requirements are satisfied, governors have

also refused extradition based upon the facts and cireum-

stances of a particular case. Thus, extradition has been

refused on the basis of equitable factors, substantive de-

fenses to a crime, and due process violations in the de-

manding state. See, Comment, /nterstate Rendition: Exec-

utive Practices and the Effects of Discretion, 66 Yale L.J.

97, 106-109 (1956).

In South Dakota v. Brown, 20 Cal. 3d 765, 144 Cal.Rptr.

758, 576 P.2d 473 (1978) (en banc), the Supreme Court of

California expressly recognized and sanctioned the discre-

tion involved in the governor’s extradition function. As

that court emphasized, the exercise of such discretion is

both necessary and valid to avoid mechanical application

of absolute rules and to ensure that justice is achieved in

a particular case. Describing the types of factors that only

the governor eculd consider and which would justify re-

fusing extraaition, the court concluded:

It would be a harsh rule that stripped the Gover-

nor of all power to deny extradition in a ease in which,

for example, the Governor is satisfied that a fugitive,

since residing in California, has established himself as

a worthy law-abiding citizen, or in which his physical

safety or right to a fair trial cannot be assured in the

demanding state, or the offense charged does not con-

stitute a crime in California. In a given case, various

unanticipated equitable considerations may be para-

mount. IJd. at 482.

South Dakota v. Brown is a recognition of the

practice in effect today throughout the country. Since

1930, all of the states have adopted the Uniform

Criminal Extradition Act. That Act confers discre-

ill

13

tion upon the governor in the exercise of his extradi-

tion power. Section 7 provides that ‘‘[i]f the Governor

decides that the demand should be complied with, he shall

sign a warrant of arrest.’’ See, e.g., Ill.Rev.Stat., ch. 60,

§24. Section 4 authorizes the Governor to ‘‘call upon the

Attorney General or any prosecuting officer . . . to investi-

gate or assist in investigating the demand, and to report

to him the situation and circumstances of the person so

demanded, and whether he ought to be surrendered.’’ See,

é.g., Ill.Rev.Stat., ch. 60, $21. These provisions make sense

only if construed to confer discretion upon the governor to

consider the facts and circumstances in each case.”

The governor’s ultimate decision in extradition cases

depends on factual considerations. The governor must

evaluate the infirmity of a charge, good character, long resi-

dence in the asylum state, contribution to the asylum state,

or the extreme and unusual hardship that would result

from extradition. Proper exercise of the governor’s dis-

cretion on these matters requires that the governor have

the facts in each case so that he can decide rationally

whether the standards for denying extradition are appli-

cable. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 484

(1972); K. Davis, Administrative Law 443 (6th Ed. 1977).*

2 The California Supreme Court in South Dakota v. Brown, supra,

acknowledged that five governors in a row had refused to honor extra-

dition requests which had been in proper form. The court also noted

that in 84 cases from 1959 to 1976, California’s extradition requests to

other states had been declined. 576 P.2d at 481, 482.

3 Without a hearing before the governor, the accused is limited

to challenging his extradition by means of a writ of habeas corpus.

However, courts at habeas corpus hearings have refused to con-

sider the facts, circumstances, and equities in individual cases.

Reed v. Colpoys, 99 F.2d 396, 399 (D.C. Cir. 1938), cert. denied

(footnote continued)

14

Due process requires that the individual have prior notice

of the charges and an opportunity to present his side of

the story to the governor. The Due Process Clause mandates

the minimum safeguards of notice and hearing to prevent

arbitrary decision-making, Goss v. Lopez, 419 U.S. 565, 581

(1975); Jay v. Boyd, 351 U.S. 345, 363 (1956) (Black, J.,

dissenting); Accord, Comment, Indigents’ Right to Ap-

pointed Counsel in Interstate Extradition Proceedings, 28

Stan. L.Rev. 1039, 1058-59 (1976) (concluding that ‘‘due

process applies in the extradition process’’.) The decision of

the Court of Appeals, upholding the summary issuance of a

warrant for petitioner’s arrest and extradition, deprived

petitioner of due process of law and should be reversed.

IT.

EXTRADITION PREDICATED UPON A DEFECTIVE

INDICTMENT WHICH IS LATER AMENDED CANNOT

PROCEED, CONSISTENT WITH CONSTITUTIONAL

AND STATUTORY REQUIREMENTS, WHEN NO NEW

EXTRADITION REQUEST IS MADE BASED UPON

THE NEW, AMENDED INDICTMENT.

Under Article IV, Section 2 of the Constitution and the

federal statute enacted to implement the Constitutional

provision, 18 U.S.C. §3182, extradition may proceed only

if the individual whose return is sought is charged with a

crime by the demanding state. A fundamental prerequi-

site is that the indictment or information on its face con-

(footnote continued )

305 U.S. 598 (1938); Commonwealth ex rel. Banks v. Hendrick,

430 Pa. 575, 243 A.2d 438 (1968). A hearing before the governor

is therefore necessary if the accused is to have the opportunity

to plead the facts and equities of his case in order to avoid extra-

dition. No other forum is available to him.

15

tain and describe each element of the crime charged. Pierce

v. Creecy, 210 U.S. 387 (1908).

The Court of Appeals failed to analyze whether the in-

dictment returned against petitioner in this case charged

a crime. In fact, the February 28, 1973 indictment against

petitioner and his co-defendants charged a conspiracy ‘‘to

restrain competition in the supply or price of an article or

commodity’’. It is undisputed that this indictment did not

validly charge a crime, since the business activities of

Waste Management did not involve articles or commodi-

ties. In the Wisconsin proceedings involving petitioner’s

co-defendants, but not petitioner, the defect in the indict-

ment was recognized, and the indictment was amended in

an effort to eliminate it, However, Wisconsin never made

a new extradition request based on the amended indictment.

In these circumstances, this failure of the original indict-

ment to describe any possible offense against petitioner

renders the indictment an invalid basis for extradition.‘

Wisconsin never supported its extradition request with

an amended indictment certified as authentic by the gov-

ernor. This is required under the federal statute regulat-

ing extradition. 18 U.S.C. $3182. Strict compliance with

the statute’s terms is mandatory. Compton v. Alabama,

214 U.S. 1 (1909). The decision of the Court of Appeals

* Recognizing that the grand jury indictment did not charge a

crime, the Wisconsin prosecutor chose not to return to the grand

jury but rather sought and obtained a judicial amendment of the

indictment. The amended indictment has been held sufficient by

the Wisconsin courts. State v. Waste Management of Wisconsin,

Inc., 81 Wis.2d 555, 261 N.W.2d 147 (1978). However, ex-

tradition here is based on the original and not the amended in-

dictment. To extradite petitioner on this basis would violate con-

stitutional precepts. See Ex Parte Bain, 121 U.S. 1, 13 (1887);

Stirone v. United States, 361 U.S. 212, 217 (1960).

16

would permit petitioner’s extradition to proceed on an in-

dictment which fails to charge a crime. This result is in-

consistent with the constitutional and statutory require-

ments of extradition and should be reversed.

CONCLUSION

For all of the reasons stated above, petitioner respect-

fully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Ap-

peals for the Seventh Circuit.

Respectfully submitted,

Jerotp S. SoLovy

Rosert L. Granam

Terry Rose Saunpers

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Attorneys for Petitioner

Of Counsel:

JENNER & BLock

Dated: October 16, 1978

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 15, 1978

August 8, 1978

Before

lion. Lurner M. Swycert, Circuit Judge

Hon. Wauter J. Cummings, Circuit Judge

Hon. Ropert A. Sprecuer, Circuit Judge

UNITED STATES OF AMERICA ex rel.

PETER O. ABELES,

Petitioner-A ppellant,

No. 77-1031 Vs.

RICHARD J. ELROD, Sheriff of Cook County, Illinois,

Respondent-A ppellee.

Appeal from the United States District Court for

the Northern District of Illinois, Kastern

Division.

No. 76-C-1772

John F. Grady, Judge.

ORDER

This case requires us to determine whether the inter-

state extradition of Peter O. Abeles, a fugitive from justice

and the petitioner-appellant herein, by reason of an April

13, 1973, executive order of the Governor of Illinois (the

asylum state) returning petitioner to Wisconsin (the de-

manding state) to face charges of conspiracy to restrain

App. 2

trade and bid-rigging in violation of that State’s anti-trust

laws, would violate Article 4, Section 2, Clause 2 and the

Fourteenth Amendment to the United States Constitution.

We conclude that it does not, and for the reasons more

fully explained below, affirm the district court’s' denial of

habeas corpus relief, pursuant to Rule 2, FedR.App.P.?

Jurisdiction on appeal is by virtue of 28 U.S.C. § 1291.

Also, since this appeal is taken as of right no certificate of

probable cause is required. Furthermore, we note that

this Court previously ordered that the execution of the ex-

tradition order by the respondent, Richard J. Elrod, Sheriff

of Cook County, Illinois, be stayed pending our review

of this matter. Therefore, in light of our affirmance, we

vacate that order forthwith.

I.

It should be noted at the outset that this Circuit is not

without precedent in this area of the law. Thus in United

States v, O’Brien, 138 F.2d 217, 218 (7th Cir. 1943), cert.

denied 321 U.S. 766 (1944), we summarized the federal

nature of interstate extradition proceedings along with the

relevant scope of our inquiry on review, as follows:

Unquestionably, the source of all authority for the ex-

tradition of an alleged fugitive from justice from one

state to another is found in Art. IV, See. 2, clause 2 of

the Constitution of the United States, which is not self-

executing, but is made effective by [18 U.S.C. § 3182]

1 United States District Court for the Northern District of Illinois,

Hon. John F. Grady, Judge Presiding.

? Accordingly, we deny appellee’s motion for summary affirmance

under Circuit Rule 15.

App. 3

construction of which has frequently been before the

Supreme Court and construed as placing the burden

upon the governor of the asylum state to determine,

before complying with the demand, (a) whether the

person demanded is substantially charged with a crime

and (b) whether he is a fugitive from justice. The

first is a question of law and the second is a question

of fact, which the governor, upon whom the demand

is made, must decide, upon such evidence as is satisfac-

tory to him. Strict common-law evidence is not neces-

sary, and the statute does not prescribe the character

of such proof, nor how it shall be authenticated.

Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544;

Ex parte Reggel, 114 U.S. 642, 5 S.Ct. 1148, 29 L.Ed.

250; Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49

L.Ed. 515; United States ex rel. Darcy v. Superinten-

dent of County Prisons of Philadelphia, 3 Cir., 111 F.2d

409. The requisition, with its accompanying affidavit,

together with the Governor’s rendition warrant, are

all to be considered as evidence and made a prima

facie case against the accused, and upon him lies the

burden of overcoming it. Munsey v. Clough, supra,

196 U.S. 373, 25 S.Ct. at page 284, 49 L.Ed. 515.”’

However, on appeal petitioner has challenged only the

sufficiency of the indictment, and may be deemed to have

waived the latter issue concerning his fugitive status. In

addition, absent any argument to the contrary, we have

assumed that the Governor of Illinois complied fully with

that state’s statutes governing extradition and that all

papers before him (excepting, of course, the challenged in-

dictment) were proper as to both form and substance. See

Uniform Criminal Extradition Act, Chapter 60, §§ 18-49,

Illinois Revised Statutes (1975).

App. 4

More specifically, the following issues have been ad-

vanced with respect to the indictment. Firstly, whether the

January 1973 grand jury indictment returned in Dane

County, Wisconsin, naming petitioner as a co-conspirator,

failed to state a crime under the anti-trust laws of Wiscon-

sin, Section 133.01(1) and (3), Wis. Stats. (1971); and

secondly, whether a Wisconsin trial court judge illegally

amended the indictment by striking certain words therein

rendering it a nullity. In addition, petitioner claims that

the Fourteenth Amendment requires the Governor of an

asylum state to give notice and a hearing to a fugitive from

justice before ordering his extradition.

II

The facts in this case, as well as the pertinent state

court history, are reported below in People ex rel. Abeles v.

Elrod, 27 Ill. App. 3d 155, 326 N.E. 2d 443 (First District

1975), reh. denied, leave to appeal to the Illinois Supreme

Court denied, 60 Ill. 2d 601, cert. denied, 424 U.S. 914 (1976).

We therefore take judicial notice of the same and need

not repeat them here.

But before addressing the issues, it is necessary to re-

port a late happening in the Wisconsin Supreme Court

made known to us by the respondent-appellee pursuant to

Circuit Rule 11, and which in our opinion lends new and

controlling authority as to the legal sufficiency of the Dane

County indictment. Thus in State of Wisconsin v. Waste

Management of Wisconsin, Inc., d/b/a City Disposal Co.,

No. 75-412-CR (Wis., filed January 3, 1978) rehearing de-

nied, Justice Hansen reviewed on direct appeal the con-

viction of one of petitioner’s co-defendants, Waste Manage-

ment, and discussed at length the identical challenges to

the common indictment advanced here. At issue in Waste

App. 5

Management, supra, was whether the indictment failed to

state a crime under Section 133.01(1) and (3), Wis. Stats.

(1971), and whether a Wisconsin trial court judge illegally

amended the indictment by striking the words ‘‘article or

commodity’’ therefrom. After careful consideration of

the charging portion of the indictment, Justice Hansen

concluded that the judicial amendment of the indictment

amounted to ‘‘a formal deletion of words, and not a sub-

stitution of one charge for another.’’ Slip Op. at 4.

Citing Section 971.26, Wis. Stats. (1971), which provides

that an indictment in Wisconsin will not be deemed invalid

per se because of a defect or imperfection so long as it may

be amended without prejudicing the defendant, the Court

continued:

The test in this state is whether the defendant was

prejudiced by this change. As with any information,

an indictment must inform the accused of what particu-

lar acts he is alleged to have committed. Notice to the

accused, not perfection in draftsmanship is the key.

...I1n the ease before us, the defendant was informed

long before trial that the state was required to pro-

ceed solely on the theory that the defendant violated

the first and not the second sentence of See. 133.01(1).

This amendment in the indictment is no foundation

for a claim of prejudice.’’

Slip Op. 4-5 (emphasis added).

Also, as for the argument that the indictment did not

charge a crime under Wisconsin law because solid waste re-

moval was a ‘‘service’’ and not an ‘‘article or commodity’’,

Justice Hansen clarified the Court’s previous holding in

State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N.W.

2d (1966), explaining that restraint of services was also

App. 6

within the statutory prohibition and that the second sen-

tence of Section 133.01(1) merely recited ‘‘non-exclusion-

ary’’ examples of conduct which was prohibited therein.

Ibid at 6-7.

ITI.

It is apparent, therefore, that under the present inter-

pretation of Wisconsin law, not only was the judicial

amendment of the common indictment permissible, but did

not result in any prejudice. Also, it is clear that the

amended indictment without question states an offense

under Wisconsin law. Waste Management, supra. This, of

course, is all with the benefit of hindsight and is quite

unlike the usual situation where the habeas corpus peti-

tioner seeks to test the sufficiency of the demanding state’s

indictment prior to its construction by that state’s courts.

However, be that as it may, the petitioner nonetheless

calls our attention to our ‘‘broad powers in habeas corpus

proceedings’’ and asks us to ‘‘consider fully the merits of

federal constitutional claims without being bound by prior

state adjudications’’ citing Fay v. Noia, 372 U.S. 391 (1963)

and United States ex rel. McCline v. Meyering, 75 F.2d 716

(7th Cir. 1934).

Yet even if we were to assume for purposes of argument

that the Wisconsin Supreme Court had not addressed these

issues, the scope of our inquiry is limited by a long line

of extradition cases holding that attacks upon the demand-

ing state’s indictment are cognizable on habeas corpus

review only if the objection destroys its sufficiency to charge

acrime. Pierce v. Creecy, 210 U.S. 387, 402 (1908).

Thus in Pierce, supra at 402, Justice Moody formulated

the following benchmark rule:

The only safe rule is to abandon entirely the standard

to which the indictment must conform, judged as a

App. 7

criminal pleading, and consider only whether it shows

satisfactorily that the fugitive has been in fact, how-

ever inartifically, charged with crime in the State

from which he has fled. Roberts v. Reilly, 116 U.S. 80,

95; Pearce v. Texas, 155 U.S. 311, 313; Hyatt v. Cork-

ran, 188 U.S. 691, 709; Munsey v. Clough, 196 U.S. 364,

372; Davise’s Case, 122 Massachusetts, 324; State v.

O’Connor, 38 Minnesota, 243; State v. Goss, 66 Minne-

sota, 291; Matter of Voorhees, 32 N.J.L. 141; Ex parte

Pearce, 32 Tex. Crim. 301; In re Van Sciever, 42

Nebraska, 772; State v. Clough, 71 N.H. 594.

We are satisfied here that the common indictment pre-

sented to the Governor of Illinois met this minimum stan-

dard and that the extradition order was therefore consti-

tutionally proper. We need only be reminded that ex-

tradition is sw? generis and a summary proceeding ad-

dressed to the discretion of the state’s chief executive.

Furthermore, we note with a degree of pragmatism that

‘*fe)]xtradition is not a means of determining the guilt or

innocence of the accused... [rjather, it is a means of as-

certaining whether the evidence is sufficient to detain and

deliver the accused for trial in another state.’’ Smith v.

State of Idaho; 373 F.2d 149, 155 (9th Cir. 1967), citing

Biddinger v. Commissioner of Police, 245 U.S. 128, 132-133

(1917).

Finally, as for petitioner’s argument that he was entitled

under the due process clause of the Fourteenth Amendment

to notice and a hearing before the Governor of Illinois is-

sued his extradition warrant, we agree with the district

court that Munsey v. Clough, 196 U.S. 364, 372 (1905)

is dispositive of this claim and that such a hearing is not

constitutionally mandated. Therefore, we remain unper-

suaded by petitioner’s reference to the Supreme Court’s

App. 8

recently expanded concept of due process in such diverse

cases as Goss v. Lopez, 419 U.S. 565 (1975), Morrissey v.

Brewer, 408 U.S. 471 (1972), and Fuentes v. Shevin, 407

U.S. 67 (1972), among others, as compelling us to presently

break tradition with the time honored preeedent estab-

lished by the decision in Munsey, supra. Although we

note that some states including Illinois,* have adopted

informal procedures, whereby an individual may request a

hearing before the state’s executive officer prior to or even

after the issuance of an extradition warrant, the record in

this case shows no attempt whatsoever on petitioner’s part

to apply for such a discretionary hearing. Therefore, the

failure to have such a discretionary hearing is at least

partially of petitioner’s own making.

Accordingly, we direct the Clerk of this Court to enter

an appropriate order affirming the district court’s denial

of habeas corpus relief.

AFFIRMED.

8 See Interstate Rendition; Executive Practices and the Effects

of Discretion, 66 Yale L.J. 97, 101 n.25 (1956).

App. 9

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

KASERN DIVISION

PETER O. ABELES,

Petitioner,

vs.

RCHARD J. ELROD, Sheriff of Cook County, Illinois,

| Respondent.

NO. 76 C 1772

MEMORANDUM OPINION

The court believes that the petition for a writ of habeas

corpus fails to state a claim upon which relief can be

granted. The reasons for this conclusion are stated below.

THE AMENDMENT OF THE INDICTMENT

On May 27, 1975, Judge Maloney of the Dane County

Circuit Court purported to amend the indictment by strik-

ing from Paragraph 16 the words ‘‘. . . competition in the

supply or price of an article or commodity which is the

subject of. ...’’ Petitioner argues that this purported

amendment by the court renders the indictment invalid,

since it is no longer the product of the grand jury. Respon-

dent does not address himself to this question. (The opinion

of the Illinois Appellate Court considered the argument

that the interpretation of the indictment by Judge Jackman

App. 10

in his order of June 4, 1973, was, in effect, an amendment of

the indictment, but the opinion was rendered prior to the

actual purported amendment by Judge Maloney on May

27, 1975. People ex rel. Abeles v. Elrod, 27 Ili.App.3d 155,

526 N.E.2d 443, 448 [1st Dist. 1975]).

It appears to this court that the amendment by Judge

Maloney was either proper or it was harmless. If the

language he struck was a mere formal defect or surplusage,

it was proper to strike it and the integrity of the indict-

ment is unaffected. If the language was an essential part of

the indictment, then Judge Maloney lacked the power to

strike it and his action was simply void. If that is the case,

the indictment remains the way it was before Judge Ma-

loney purported to amend it.

Whether the language in question was properly stricken

is not a matter to be determined in an extradition pro-

ceeding. It is a question to be determined by the courts

of the State of Wisconsin. As indicated below, this court

does not believe the defendant will be prejudiced by a ruling

either way on the matter.

THE SUFFICIENCY OF THE INDICTMENT

The question on this petition for habeas corpus is whether

the indictment substantially charges a crime. The ques-

tion is not whether the indictment is perfect or immune

to motion. If extradition required an indictment whose

sufficiency was entirely free from doubt, the statute requir-

ing extradition would have little meaning.

In determining the sufficiency of the indictment, we as-

sume that the attempted amendment by Judge Maloney

was void, so that the indictment stands as originally re-

turned by the grand jury. The question, then, is whether

App. 11

the indictment substantially charges an offense when, in

Paragraph 16, it alleges something which is not a crime

under the law of Wisconsin. To answer this question, we

must consider the indictment as a whole.

Anyone reading Paragraphs 13 through 15 and 17

through 20 of this indictment knows that the defendant

is charged with a conspiracy to restrain price competition

in the removal of solid waste in Dane County. The con-

spiracy is described clearly and there is no uncertainty or

ambiguity as to its alleged objective. These paragraphs

are suificient to charge an offense under the first sentence

of Section 133.01(1) of the Wisconsin statutes, the section

cited in the indictment.

This first sentence of the section broadly declares all

combinations and conspiracies in restraint of trade to be

illegal. The second sentence of the section goes on to

declare that a specific type of restraint, namely, the re-

straint of competition in the supply or price of an article

or commodity, ‘‘is hereby declared an illegal restraint of

trade.’’ The activity specified in the second sentence of

this section, therefore, is simply one form of the generic

crime described in the first sentence. Anyone guilty of

violating the second sentence is necessarily guilty of violat-

ing the first, although one may violate the first without vio-

lating the second if no article or commodity is involved.

Returning to Paragraph 16 of the indictment, it alleges

that the defendants conspired to restrain competition in the

supply of an article or commodity. Paragraphs 13 through

15 and 17 through 20 make it clear that the alleged re-

straint was directed at the price for removal of solid

waste. Whether solid waste be regarded as a commodity

or not, the charge is the same. The indictment is sufficient-

ly clear te enable the petitioner to prepare his defense

App. 12

and it is sufficiently specific to allow a plea of double

jeopardy in the event of a later prosecution for the same

conduct. Thus, this indictment passes the traditional con-

stitutional tests of sufficiency. Petitioner’s argument that

the grand jury might not have returned this indictment had

they known that solid waste was not considered an article

or commodity cannot be taken seriously.

It is common for a conspiracy to have multiple objec-

tives, and, if this indictment be regarded as charging a

conspiracy to restrain trade in a commodity as well as

a service, that would not render it defective. Nor would

the prosecution fail by reason of the fact that the Wis-

consin court has held solid waste not to be an article or

commodity. Failure to prove one object of the conspiracy

would not ordinarily be a fatal variance, and a conviction

would be warranted if the proof shows that the conspiracy

contemplated at least one of the alleged objects.

In short, it seems clear that this indictment, even as

originally returned by the grand jury, substantially charges

the crime of conspiracy under Section 133.01(1) of the

Wisconsin statutes. The error of the draftsman in ref-

erring to an article or commodity in Paragraph 16 is a

technical defect which does not affect the substance of the

charge. There is nothing unfair about requiring petitioner

to answer to the indictment in Wisconsin, where he will

have ample opportunity to make what he can of the defect

he sees in Paragraph 16.

THE RIGHT TO A HEARING

Petitioner argues that the Governor should conduct a

hearing before ordering extradition. It appears that peti-

tioner has in mind something more than a determination

by the Governor that the indictment does substantially

App. 13

charge a crime and that petitioner is the person named in

the indictment. However, petitioner has not enlightened

this court as to what additional issues he believes should

be presented. At page 29 of his memorandum, he states

that the law requires that he be afforded ‘‘some meaning-

ful opportunity to present his case. ...’’ He does not

explain what he means by ‘‘his case.’’ Apparently peti-

tioner does not seriously contend that the Governor should

conduct an evidentiary hearing on the merits of the charge,

and, short of that, we can think of no kind of hearing

which would benefit the petitioner. The kind of hearing

required by due process varies with the type of inquiry

before the tribunal. It is not feasible for a Governor of a

state to inquire into the merits of a criminal charge pending

in another state, nor has it ever been thought that due

process requires him to do so. A hearing is not even re-

quired on the narrow issues which are before the Gov-

ernor. Munsey v. Clough, 196 U.S. 364 (1905); Marbles

v. Creecy, 215 U.S. 63 (1909). Petitioner’s reliance on re-

cent due process cases involving such matters as garnish-

ment and replevin is entirely misplaced. That subject mat-

ter is simply not analogous to an extradition proceeding,

and we note that petitioner has merely cited these cases

without attempting to relate them in a practical way to the

case before us.

The petition of a writ of habeas corpus is dismissed.

DATED: November 30, 1976.

ENTER: /s/ John F. Grady

United States District Judge

App. 14 App. 15

Territory from whence the person so charged has

fled, the executive authority of the State, District or

Territory to which such person has fled shall cause

him to be arrested and secured, and notify the execu-

tive authority making such demand, or the agent of

such authority appointed to receive the fugitive, and

shall cause the fugitive to be delivered to such agent

found in another State, shall on Demand of the execu- when he shall appear. If no such agent appears with-

tive Authority of the State from which he fled, be in thirty days from the time of the arrest, the prisoner

delivered up, to be removed to the State having Juris- may be discharged.

diction of the Crime.

APPENDIX C

United States Constitution, Article IV, Section 2, Clause 2

A Person charged in any State with Treason, Felony,

or other crime, who shall flee from Justice, and be

, Ill.Rev.Stat. 1975, ch. 60, Section 21. Governor may investi-

United States Constitation, Fourteenth Amendment, Sec- gate case.

tion 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they re-

side. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its juris-

diction the equal protection of the laws.

When a demand shall be made upon the Governor of

this State by the Executive Authority of another state

for the surrender of a person so charged with crime,

the Governor may call upon the Attorney General

or any prosecuting officer in this State to investi-

gate or assist in investigating the demand, and to re-

port to him the situation and circumstances of the

person so demanded, and whether he ought to be sur-

rendered.

Ill.Rev.Stat. 1975, ch. 60, Section 24. Issue of Governor’s

18 U.S.C., Section 3182. Fugitives from State or Territory warrant of arrest; Its recitals.

to State, District or Territory.

Whenever the executive authority of any State or

Territory demands any person as a fugitive from jus-

tice, of the executive authority of any State, District

or Territory to which such person has fled, and pro-

duces a copy of an indictment found or an affidavit

made before a magistrate of any State or Territory,

charging the person demanded with having committed

treason, felony, or other crime, certified as authentic

by the governor or chief magistrate of the State or

If the Governor decides that the demand should be

complied with, he shall sign a warrant of arrest, which

shall be sealed with the state seal, and be directed

to any peace officer or other person whom he may

think fit to entrust with the execution thereof. The

warrant must substantially recite the facts necessary

to the validity of its issuance.

App. 16

Wis.Stat., 1971, Section 133.01(1) and (3)

(1) Every contract or combination in the nature of

a trust or conspiracy in restraint of trade or com-

merce is hereby declared illegal. Every combination,

conspiracy, trust, pool, agreement or contract intend-

ed to restrain or prevent competition in the supply or

price of any article or commodity in general use in

this state, to be produced or sold therein or consti-

tuting a subject of trade, or commerce therein, or

which combination, conspiracy, trust, pool, agreement

or contract shall in any manner ccntrol the price of

any such article or commodity, fix the price thereof,

limit or fix the amount or quantity thereof to be man-

ufactured, mined, produced or sold in this state, or

fix any standard or figure in which its price to the

public shall be in any manner controlled or estab-

lished, is hereby declared an illegal restraint of trade.

Every person, corporation, copartnership, trustee or

association who shall either as principal or agent be-

come a party to any contract, combination, cconspir-

acy, trust, pool or agreement herein declared unlawful

or declared to be in restraint of trade, or who shall

combine or conspire with any other person, corpora-

tion, copartnership, association or trustee to monop-

olize or attempt to monopolize any part of the trade

or commerce in this state shall forfeit for each such

offense not less than $100 nor more than $5,000.

(3) Whoever violates sub. (1) may be fined not more

than $5,000 or imprisoned not more than 5 years or

both.