Petition — Panko v. Rodak

In the

SUPREME COURT OF THE

UNITED STATES

October Term, 1979

~ €9-1034

-

GRECORY PANKO, Petitioner

MICHAEL RODAK, JR., Individually and

as Clerk of the Supreme Court of the United

States,

EDWARD C. SCHADE, Individually and

as an Assistant Clerk of the Supreme Court

of the United St-tes, Resvondents

Petition for a Writ of Certiorari

to tre United States Court of

Appeais for the Seventh Circuit

Gregory Panko

1352 North Bell Ave,

Chicago, I11. 60622

=

TABLE OF CONTENTS

Page

Opinions Beloweccccvicsvccvcesccss 2

POPTARAOEINE £6 bs ccbbRiabbccadeccs 2

Questions Precsented...-coocceccoce 2

Constitutional and Statutory Provi- :

Ssicns ee | EE eae e226 | 3

Ae ara

Reasons for Granting the Writesse. 10

CUMING a a 65 heb bs bees ckscecier 17

Appendix A Constitutional mand

Statutory Provisions

Appendix B; Copies of Orders and

Opinions of Courts

i

Table of Cases

i Yv. Callaway, 423 U.S. 8B8

[ me ctr: PP EECT TO OCKCeSE Ere Seo eLOC eee

26n5e60 Be : 9, 11, 12; 14, 15, 16, 17

Carter v. Seamans, 411 F, 2d 767,

773 5 Cires 19 Devvesccsevossers 15

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7

Page

"Ag (ea —_ MAT yh Sc cry BR nH othe ;

ep tee eee dey ous se sat a ee |

Veta leg VAos £91 .3166660.0480080608 10

elation ve Honderson, 492 F, 2a

LZSo0 ui Cakes EFJFiscésenccsace 10 ,

jWdwestern Developments, Ince ve si

"Gar of $alea. OL Ben ar gio Fe

2a 53 (10° Cir,» 4 Z)ecosrtovces . 10, ae

Panko ve County of Cook. Illinois, 4

Tll. App. Ct. No. 601941 .1976).. 4, 6°

Penko v, Donozan, 415 US. 953

LL IPE CORPO K CODEC OEEC ORO CeCeS

Ponke v. Tarlieres 7th Cir, Cts of

Ap;reais HO. 75°1726. (1976). c0eee 4

Fob’ chand vy. Ronan, 351 F. 2d 533 |

- -_ =e

2 Cristo, 4 Didesasessceedeatace 1i

; All State Aécministrators, :

j ? (197% a 3 :

TON CHEN O POZO Ce DHODDCGe- ¥ 312 7134, 16

Sicpueon ve Drew, 359 F. Supp, 746

—-—_ «a eo ee ee ee ee

.

(Fo D- jf 0? 197 Peketatésedan® occ 10

Us Sov. Bell. 127 F, 1002; 1003

“EoD. Paes 1904); affta 135 F, 336

(3 Cire, 1905) ereseccccossecreeny , | te

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114

Table of Constitutional and Statutory

Provisions

Constitution of the United States,

Amendment hbb64h0000460046 0 De

Page

« 55 72 8

28 UsSaCes Section Pibk660060500600% oii

28 7 Section 1254 1) Spee

2

28 UeSeCo, Section hs errr rer 3» 4

28 U.S. 2° Section La3Zevcccscececes 3+ 4

2B WeBeGa, Section 1361escesccccede Me

UsSe Supreme Court Rule 13 (2)eseeee3s

U.Se Supreme Court Rule 21 (3)seecceed,

UeS, Supreme Court Rule 39ececcecece

COR CHS Cee eKereceseseseezeon dy 4, Se 15.

U.S. Supreme Court Rule 53 6) a, 2

Table of Other References

14 CoJeS,, Clerks of Courts,

Section Aled ee eek ae

55 CoJeSe, Mandamus, Section 69 (d)..

67 C.JeSe,y Officers, Section 112se.es«

14

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16

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Wie ct - SUPREME GC QURT OF THE

ena | UNITED STATES

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October Term, 1979 ec

63,25 25 bs NO, )

, @ 0 eC ot agiv ° io 5 ne ba RO CEG clas 90 ak ed” OF Sig ve

.. ee it tu GREGORY PANKO, Petitioner

_ | MICHAEL RODAK, JR., Individually «nd as)

ye em 0 3 MIG Suu) Clerk of the Supreme. Court of the United

| | | ntti nnie a, ea ee Pi ROA Eee ae

diiidaces: uae Nise , EDJARD C. SCHADE, Individually. and as-an_.- .

ay ce tigers ka a2 <b wgtgrerere® Petererecereteion se eas. | Assistant Clerk of the. Supreme ‘Court of: -:

° the United States, Respondents -.:+ +; ©.

4-0 © @@ee0e - 4 o. @ en « — — Re ~~ MS Me i —

- tah), Ce See ei ": ie 5a lalate Teel al ag. nek

. Petition for a Writ of Certiorari to the - -

o. 7. . United States Court of Appeals ‘Scone

for the Seventh Circuit

ro 0 Petitioner asks that a writ of certi-

i. ' ; eee : orari issue. to review the judgment.of thie

one ica si a ! United States Court of Appeals for the Sev~.:

iat B afay : enth Circuit entered August 1, 1979, affirm-

ing the order of the United States District

Court for the Northern District of Illinois,

&.

*

| |

Z

Javtcin Divislon dismissing this case in

its entirety,

+ ° .

OPINIONS BELOW -- -

The opinion of the United States Court

of Arpeals for the Seventh Circuit is repor=

ted at 606 F,. 2 168. <A copy of the said

opinion and of the unpublished opinion of

the United States District Court for the

Nortnern District of Illinois, Eastern

Division is fovnd in Appendix B,

JURISDICTION

Jurisdiction to review the judement of —

the United States Court of Appeals for the

Seventh Circuit entered on August 1, 1979, ..

affirming an order of. dismissal of this case

is conferred upon this Court by 28 U.S.C.,

Section 1254 (1).. An extension of time of

60 days after October 30, 1979, or until

December 29, 1979, within which to petition

fcr a writ of certiorari was granted by

oraer of the Circuit Justice on October 30,

1979, .

~- QUESTIONS PRESENTED

The questions presented include the

following:

“f

.

3

I. Are the duties of the Clerk and an Assi-

tant Clerk of the Supreme Court of the United

States to file papers &enerally judicial or

quasi~judicial in nature or are they gener-

ally ministerial in nature?

II. Does mandamus: lie in a United States

District Court to compel the Clerk and an

Assistant Clerk of. the Supreme Court of: the ,

United States to perform ministerial duties

owing to a plaintiff pursuant to 28 U.SeCa.:

Section 1361? | |

-..TII, ‘Are the Clerk and an Assistant Clerk of

the Supreme Court of the United States. hione-

terial duties owing to a plaintiff? ;

IV. Is this Court's: holding in Calley y,

RIEL 423 UsS. 888, that legible type=

written or otherwise reproduced copies of.

nonprinted court opinions may be submitted

as appendix data with respect to a peti-

tion for a writ of certiorari limited only. .

tarlly liable for failure to perform ninigs

‘to that case, or does it apply also to other

cases? - nt aa is ei case sa

CONSTITUTIONAL ‘AND STATUTORY PROVISIONS INVOLVED

‘The pertinent portions of.. Amendment 5

of the s ut ted States; 28

YU. » Sectior » 193%, 1332, 1301. and

39, and 53 (5) are set forth 1m Appendix A.

rib an . ' -

el *

R * . .* ey “=, it .

STATEMENT

Petitioner brought this

United States District Court rate ig A

thern District of Illinois, Eastern Divi-

Sion in accordance with 28 UsS.C., Sections

1361, 1331, and 1332 seeking mandamus and

monetary relief, claiming in his complaint

the incorrect deprivation of his rights. of

due process and equal protection of law

provided by the 5th Amendment of the Consti-

curion of the United States caused by respon=

dents: failure to perform ministerial duties

owing to the petitioner, the respondents

being the Clerk and

be piven an Assistant Clerk of

The complaint having two counts states

—_ in November 1976 and April 1977 respec

ively petitioner submitted 40 copies of a

petition for a writ of certiorari for review

of the case Panko v. Tagliere, No. 75-1726

from the United States Court of Appeals for

the Seventh Circuit and 40 copies of a juris~

dictional statement with respect to the apneal

of the case Panko v. County of Cook, Illinois

No. 61941, from the Appellate Court of Tlli-

nois, -First District to respondents office

along with docket fee checks. In each in-

Stance respondents retained one copy of

each document and the docket fee check, but

Pope cos Edward C, Schade at the general

wiriete + of respondent Michael Rodak, Jr.

a aacee other 39 copies accompanied by >

a letter believing that the document did not.

comply with Supreme Court Rule 39 governing

the printing. Petitioner alleged in his

complaint with respect to this action that

the letters were vague and ambiguous contrary |

5

to the 5th Amendment of the Constitution of

the United States in not saying exactly

in what way the respondents believed the docu-

ments did not comply with Rule 39, i.e. whether

the margins were too large or too small, whether

the print size was too large or too small, or

whether only the appendix. portions were invol-

ved. Nothing whatsoever was indicated in

either letter of the need for an in forma

pauperis motion in order for the resvondents

to accept the documents as they were submitted.

From an..examination of copies of documents

of other cases enclosed by respondent. Edward

C. Schade, as well as research which the

petitioner had done, it appeared that the

respondents wanted the data on attached

folded sheets of about letter size con-

tained in Appendices B and C of the peti- ,

tion consisting of reproduced copies of ——

the complaint. court opinions, and court or-

ders ‘some of which wore reduced in print

size) and Appendices C and D of the juris~.

dictional statement consisting of repro-.

duced copies of court orders and the notice

of ‘appeal (some of which were reduced in

print size) printed in the same format as

the main text. (References to some of the

appendix data being reduced in print. size.

in the complaint were parenthetical and were

not intended to indicate that this was the

controlling reason as to why the documents

were not filed. It appeared that. respon- -

dents did not wish to: file the documents

with some of the appendix data reproduced

on attached folded sheets of about letter

size.)

Petitioner resubmitted the 39 copies of

the petition and. jugiealgt ion statement res-

pectively accompayigd by icovdring letters

and motions to dispense with printing of |

6

-. Bae 7

rte eer sme am

portionsiof the appendices, which motions ~

7

he wanted respondent. Edward Cy-Suhade -to--- —-.

*present.to-the justices:‘of this Court. In

the covering letters and in the motions 2

petitioner indicated that legible. type~- —

written or otherwise reproduced copies *_

of nonprinted: court opinions. may be sub-

mitted: with respect: to a vetition withouc °””

the ‘data: being. printed in. the. same. format

- ds'the main text citing Calley v.. Callaway, -—..

423 UaS.-888 (1975), wherein this- Court had

erated d-notion-to dispense with pr nting” *-

of portions of the appendix of a petition °

Tor a Writ of wertiorari., In his cev- | _

vring Lecter and motion.with respect to the

jurisdictional.statement petitioner indicated

that~this could likewise be applied to ——

wonprinved orders and the notice of apnveal .

with resfPect to-.a-jurisdictional statement. _

He also indicated that a jurisdictional. ~ -°

statement with.respect to an appeal, Pankd —

Ve DonBVart, 415 UsSa. 953 (1974), with similar

attac ments had been previously accepted, -~ _

In his’ motion of December 13, 1976, with ~'

respect ‘to the petition for awrit,of . -

certiorari petitioner also: indicated he was |

in the process of preparing a petition for~

leave ‘to: appeal to the Supreme Court.of © __

Tllitois: from the Appellate Court of Illi- —

nois ‘regarding ‘the case Panko v. County of *

Cook, Ellinois, supra, the time for filing

havin been-extended :from December 1, 1976,

to January 5, 1977. (Petitioner was granted

leave 'to' file the -said petition instanter

by the Supreme Court of Illinois later,in

January 1977 during its January Term, )‘-

(The parcel which contained. the motion of

December 13, 1976, was not. claimed. by anyone

of respondents’. office during a period of —

more than 30 days after a delivery attempt

Was made on December 18, 1976, with a

PRCT Me,

pare J ie y

notice then left and was returned in Jan-

uary 1977 to Chicago, Illinois and held

at a postal station. On February it was

resubmitted to respondents* office without

being opened and was received there on Feb=

ruary 18, 1977)

In his complaint petitioner alleged

that instead of submitting the motions to

this Court in accordance with the directive

of Snider v. All State Administrators, Inc.,

4i4 U.S. Sy (1974), respondent Edward -

C. Schade incorrectly returned the 39 copies”

in each case without. any covering letter - rt

whatsoever contrary to the 5th Amendment of _.

the Constitution of the United States and

the directive of Snider thus incorrectly

denying petitioner due process and equal |

protection of law and engaging in misfea-

sance of office. Later, respondent Edward

C. Schade or a designee returned docket

fee checks with respect to both the peti-

tion and jurisdictional statement. .

In addition, petitioner resubmitted

the 39 copies of-his petition after their

second re urn by respondent Edward C. Schade

along with a motion to dispense with printing

of portions of the appendix and a covering

letter addressed to the Circuit Justice,

John Paul Stevens, asking that the said

Justice or the Court grant the motion and

that respondents* office be directed to

properly docketithe petition that peti-

tioner might have due process of lane [Mn

his complaint petitioner alleged that rés-

pondent Edward C. Schade returned all ef

the transmitted items including the letter

addressed to the Circuit Justice without

any lietter of explanation whatsoever

&

Bs tay es

8

= contrary to Amendment 5 of the Constitu-

tion of the United States. AS

Petitioner asked tn his complaint that

& mandamus issue directing respondents to

docket his petition and jurisdictional

statement or, in the alternative, to submit

_ the respective motions to dispense with

printing of portions of the apvendices to

‘the justices of this Court for determin-

- abion. . Fhe. petitioner also asked that res-=

5 rondents pay the petititener for.misfeas-

ance and the. incorrect deprivation of peti-~

- tioner's rights of due process and equal

vrotection of law.provided: by the 5th:Amend=

ment of the Constitution of Lin thee

Ot and resubmission postal: ezpenses

plus court. costs,

On February 10, 1978, counsel for the

respondents filed a motion to dismiss and

_ on +Februery 17, 1978, filed a-memorandum in

supwort of the said motian to: dismiss wherein

it was alleged that réspondents-were -immune

“from monetary liability with respect to

the instant case and‘that mandamus did not

die in the District Court with respect to

the respondents... On. March 24, 1978; peti-

-. tioner filed with leave of the District

Court a reply to the said motion to dismiss

snd memorandum in suprort thereof wherein he

alleged that respondents were not: immune from

‘. ‘monetary liability with respect to the instant

‘Case and-that mandamus did lie in the District

-Court with respect to the respondents for

‘performance of ministerial duties, On

ril 14, 1978, counsel for the respondents

Aled a revly memorandum to petitioner's

ply of Merch 24, 1978, and on April 25,

» with leave of the District: Court peti-

Aoner filed a response to the reply. -

+ ee me tae

lei tie nee Aatier eee

9

memorandum of April 14, 1978, of counsel for

the resvondents.

On July 5, 1978, an order was entered

in the District Court with an accompanying _

memorandum dismissing the case in its enti-

rety pursuant to defendants’ motion. The

Court was of the opinion that judicial

or quasi-judicial immunity extended to the

respondents in the exercise of discretionary

authority, and thet there was nov a ciear,

ministerial, and nondiscretionary duty on

respondents! behalf without an in fo-ma

pauperis showing by petitioner. On Septen-

ber 5, 1978, the petitioner filed a notice }

of apveal in the District Court with respect —

to the order of July 5, 1978.

Briefs were submitted by the petitioner ~

and counsel fér the respondents in the 7th —-

Circuit Court of Appeals. On August 1, ~

1979, the Court of Appeals issued an order

and an opinion affirming the order of the

District Court. The Court of Appeals was

of the opinion that respondents were perfor#

ming judicial.or quasi-judicial functions

within their authority and had judicial

immunity, and that thére was not a plain —.

duty on the part of the respondents to file -

any of petitioner's papers without an'in. ~~.

forma youperis showing by petitioner. It“:

also held that this Court*’s ruling in Calley

Ve Callavay, supra, applied to that case

alonese .

10

11

authority by the constant fear of

REASONS FOR GRANTING THE WRIT personal liability for damages, ... |

| | Ke ; Reporters ‘are like clerks in that. |

" their duties are ministerial in nature.

I. THE COURT OF APPEALS IN HOLDING THAT ~ | pee chin ctor are not protected by .

RESPONDENTS WERE PERFORMING JUDICIAL OR quasi-judicial immunity."

STERTAL Ponies FUNCTIONS INSTEAD OF MINI- : .

VCTIONS AND HAD IMMUNITY HAS DECI=. The 3rd Circuit Court of Appeals in. ...

DED QUESTIONS OF LAW IN CONFLICT WITH DECI- affirming an order of a district court held

SIONS OF OTHER COURTS OF APPEAL.

—_—— — atm

Where a duty is a definite one not uthority to fule upon the character or

involving the exercise of judgment, impo- : sustnae ot cabsess Crondavee him to -be filed,.

sed by law arising under conditions: admitted and failure tb issue process toa party ——

ate Tee Oe eee te 18 & ministerial entitled to'-it may result in -the clerk's --

duty (67 C.J.S., Officers, Section 112).. liability for loss to thet party (U alee es 4

4 court clerk is a ministerial officer and 11, 127 F.e 1002, 1003 {£<sD,. ies > ,

(Me ancaben, ory, segue Judicial powers .. : - 4 135 F. 336 (3 Circ, 1905)). The title

Tilses Okiahome, HOP SE os UO te of an‘office, quasi-judicial or even judicial,

1963)). mone ee ot Cire. does not of itself immunize the officer _ -

3). if a clerk of a court fails or refu- for unlawful. acts which cannot be said to .

Sés. to perform a ministerial duty imvosed constitute ar integral part of judicial: .—

on him by law resulting in injury to another, process (Robichaud v , 351 Fe ag er

page) is liable in damages. to the injured 533 (9 Cire, iseayy “Clerks of courts : rr

perry, (it Sedade, Clerks Of Courts, Section are, therefore, not absolutely immune from’. -

3" Cie ToRr ee 492 Fe 24 1298 — liability for damages resulting from we

a Tg igh Fea eee el Se actions taken by.them in thepberformance __

UDPDe 746 (E.D. Vac» 1 7 ; McGhee v, Mo er, of their responsibilities. , oad “a ates

60 FR:Ds 578 (WeDs Vass 1973])« Th WoLallen ne”

Ze eEngerson, the ircuit. Court of. Appeals | ‘provides ‘that °-"~

held that court clerks did not have judicial nine 2 a ypeeee igre cg lie the

ia quasi-judicial immunity as follows:° * powers. and. perform the duties assigned

CG , > e courts - Ue. Se

| “IG ourt functionaries such as clerks Sune Court Biles 21 (3) and 13 (2) pro-!~

are not clothed in judicial immunity. — : vide for docketing a petition for a writ of .-

be ar eee ae ministerial, certiorari or docketing an appeal respec- = -..

pakttek ludiciar saa ee ae } ; tively upon the submission of 40 copies of _ =.

srehted to tanrsekrdicl LeU 3 the respective petition or jurisdictional

we geneec en Sets enene ? statement with proof of service and payment

who, like judges, must not be unduly

inhibited to exercise discretionary of the docket fee by a petitioner or appel-_—

lant dr tespective counsel. In Calley ve — ;

12

Callaway, supra, this Court in eranting a

motion to dispense with vrinting of por-

tions of the apvendix to a petition for

a writ of certiorari held that legible

typewritten or otherwise reproduced copies

of non-printed court opinions may be submitted

with respect to a petition for a writ of

certiorari without the data being printed

in the same format as the main text without

specifying an in forma PaEeatinee requirement.

This could likewise be applied to nonprinted

orders and the notice of appeal with respect

to a jurisdictional statement. There was

nothing from the respondents accompanying

the returned copies of the documents prior

to the filing of this action to indicate

that an in forma pauperis motion was

required by the respondents. Therefore, -..-..

it can be assumed that this was not ‘in: point

as to why respondents did not wish‘to file

petitioner’s documents, Where an in forma

pauperis showing is actually required in

this Court, Ue. Se Supreme Court Rule 53 (5)

does not authorize the €lerk to reject any

motion. as to content for failure to contain

an adequate in forma pauveris showing. It «

is rather discretionary with the justices of

the Court as to whether or not to grant an

in forma pauperis motion whose format is

physically all right. |

In Snider v. All State Administrators,

Ince, .supra, this Court specified that the

Clerk will be instructed to submit a motion

to dispense with printing to the Court for

decision. The Clerk was not authorized

to pass upon the motion or to return the

motion: dnd the document on his own without

Submission to the Court but was clearly

directed to submit the motion to the Court

for decision. Respondents, thereiore, had

13

nondiscretionary, ministerial duties

ree, petitioner's documents or to submit

the motions to the Court for determination.

. THE DECISION OF THE COURT OF APPEALS

x HOLDING THAT THERE WAS NOT A PLAIN DUTY

ON THE PART OF RESPONDENTS TO FILE ANY OF

PETITIONER'S PAPERS CONFLICTS WITH A DECI~

SION OF THIS COURTs--..-—- |

Court of Appeals in-denying san-

dawut seit held: incorrectly that there 7

was not a plain’ duty: onthe part of al ye

dents to file any of petiticner s agree

that petitioner did not have a clear r g .

to have his. motions to haere wee ommatted

ting [of portions of the appendices} su

to this Court.. This is, in conflict with

this Court's ruling in Snider v. All State

dministrators, Inc., supra, wherein ee "

Court held that the Clerk will be instructe “ae

to submit a motion to dispense with .prin- . ae

ting to the Court for decision. This Court) |

did not authorize the Clerk's Office to

determine whether or not sucha motion was

sufficient on to return the document in :

question and the motion at its discretion. iG

ider this Court held thet it had the

tt a to waive the application a all

ticular rules in appropriate pi roupesen

ces, Petitioner's situation as to. a "

question of jn forma pau eris is dis 7

guishable from that of Snider. In Sn der

the petitioner there. had peald the docke

fee but sought to dispense completely | -

with printing of his petition for writ o

certiorari and té submit only one bye

written copye As previously nage

the petitioner of this case subm!

oe oS ae

| |

14

copies of his, petition and jurisdictional

Statement accompanied by docket fee checks

and wished to dispense only with printing

of portions of the appendices, This Court

had previously granted a motion to dispense

with printing of portions of the appendix

with respvect to a petition for a writ of

certiorari in aad Ve Callavay, supra,

without indicating in its order the need

for an in forma pauperis statement,

Therefore, resrondents had Plain, nondis~

cretionary duties to file petitioner's

documents or to submit the motions to the

Court for determination. Petitioner had e

Clear right to have his documents filed or

to have his motions to dispense with prin-

ting of portions of the anvendices submitted

to this Court for determination, Prior to

the commencement of this action petitioner

attempted to administratively resolve~- the

difficulties throught correspondence,

There did not appear to be the availability

6f another adequate legal remedy for peti-

tioner to try to have his documents filed

as they were submitted to respondents?

office. 28 U.S.C., Section 1361 provides

that. the district courts shall have original

jurisdiction of any action in the nature of

mandamus to compel an officer or employee

of the United States or any agency thereof

to perform a duty owed to the Plaintiff, —

Mandamus may issue-to compel a clerk of a-

court to perform Some ministerial duty

which he improperly refuses to perform,

Such as, filing of tou (Oe Gath delivered

to him on tender of fees 55 CetdeSey =

damus, Section 69 (d)), Petitioner bas a

clear right to the relief sought by man-

damus in this action, The three elements

applicable to the issuance of a mandamus, -

namely, (1) a clear right in the plaintiff

15

‘te the relief sought, (2) a clear duty on

he part of the defendant to do the act in

soneeank: and (3) the unavailability of ano-

h dequate remedy in law (Carter v

pip gg F. 24 767, 773 (5 Cire, 1969) +-

Holmes Ve oe States Bd of Parole, 541 F.

2a 12 36 1247 (7 Cire, 1976 al exist with

respect to this action.

Mandamus, therefore, lies in a United

States District Court to compel the Clerk

and an Assistant Clerk of the Supreme Court

of the United States to verform ministerial

duties owing to the petitioner, ?

7 ta

. THE QUESTIQN OF WHETHER THIS COURT

HOLDING TN GALLEY V_ CALLAWAY, 423 U.S.

888, APPLIES ALSO TO OTHER CASES IS 4 QUES+

TION WHICH SHOULD BE SETTLED BY THIS COURT,

Court.of Appeals in its opinion

on this case held that the order in

Calley ve Callaway, supra, granting leave to

dispense with printing of portions of the

appendix to a petition for a writ of cer-

tiorari applied to that case alone, © In

Calley this Court in granting the motion

did not limit the application to that case

alone but by stating in detail without an

in f stipulation in the rd

itsett that porte. e typewritten or otherwise

reproduced copies of nomprinted court fl

opinions may be submitted with respect

a petition fora writ of certiorari indi-

cated the possibility of application also .

to other cases. The application to other

cases would not nullify the requirements

of Rule 39 (1) for all cases regarding

appendix material. Separate volume

16

appendices accompanying briefs on the merits

would still be subject to Rule 39. Copies.

of court orders. and nonprinted court opinions

on other-size sheets than the main text pages

could be submitted as attachments with res-

pect to a petition fora writ of certiorari

or be submitted Separately bound me cme nt ae

upon circumstances. ee 2.

It is not the case, as méntioned in

the opinion of the Court of Appeals, that

"fpetitioner's] attempt to rely on a state

court ‘deadline’ in the motion relating to

the petition for, Ta writ of] certiorari

had no merit because the ‘deadline’ was

passed before the [respondents] received

the motion and thus could not excuse the

failure to comply with Rule 39." It is

not controlling when the resnondents recei-

a

ved the motion. The motion was submitted on =

December 13, 1976, before petitioner comple- -.

ted his petition for leave to appeal''to ©

the Supreme Court of Illinois regarding

another case, which petition he was gran-

ted leave to file by the Supreme Court of

Illinois in January 1977. It is not the case, ~.-.

as mentioned in the opinion, “[ajnd the

statement in the motion relating to the juris-

dictional statement that similar documents hed

been accepted tn an earlier case wes irrele-~

vant since from the docket number assigned

to the earlier case, those. documents appear

to have been accepted before the Court's

warning in Snider was issued." Following

its ruling in Snider Ve ts oy pol

strators, Inc,» SUDIrA, s Co n

Calley v. Culiaway, supra, grented a motion

to dispense with printing of sad ar te: of the

appendix,

17

The question of whether this Court's

holding in Calley applies also to other

cases with or without a motion is a ques-~

tion which should be settled by this Court.

CONCLUSION

The question of whether the duties of

respondents to file papers generally are mini-

sterial in nature is a question of law which

the United States Court of Appeals for the

Seventh Circuit has decided with respect to

this case in conflict with decisions of other

courts of appeal, and the question of whether

there was a plain duty on the part of res-

pondents to file any of petitioner's papers

is a question of law which the United States

Court of Apveals for the Seventh Circuit

has decided in conflict with a decision of

this court. The question of whether this

court's holding in Calley v. Callaway, sunvra,

applies also to other cases is a question

which should be settled by this court. This

case directly involves some of the proce-

dures and rulings of this court. For

the reasons which have been set forth,

certiorari should be granted.

Respectfully submitted,

Gregory Panko

1352 North Bell Avenue

Chicago, Illinois 60622

ee ee

“. ATI nn a ° —

APPENDIX A

Constitutional and Statutory Provisions

Pr

t

aa i

4

Al

Appendix A

Constitutional and Statutory Provisions

~~

; titut on of the United States, Amendment

3 tn part: fos

~

-eeenoF shall ony person -e@+ be Aaenrived

of life.- ‘Liberty, om pacpe it A “wi Shout

due precess of law: .>,.

28 U.S Se Can Section” 356%.

ass «

a i. a Aa

The clerk: of each court .and his dep-=-

uties and assistsnts shaii. ercreise p

the pewers anc perform ine duties

assigned to them by the ccurt.

. 28 U.S<6., Section 1331 in pert:

The district courts shall have ori-

ginal jurisdicticn of all civil ac-

tions wherein the matter in controe

; yeu | versy exceeds the sum or value of

. $10,000 exclusive of interest and |

“ane. ~oanaes and arises under the Consti-

tution, laws, or treaties of the Uni-

ae: ted States, except that -no such sum

or value shall be reouired in any

such action brought against the

. United States, any agency thereof,

or any officer or employee, thereof

f in his official capacity.” °

28° UsSeCe, Section 1332 in part:

: | (a) ‘The aistrict courts shall have

; -.. original jurisdiction of all civil

-

chiitse,

ng.

A2 | A3

steed h a t..

actions where the matter in contro- placed on the docke

910,000, exclusive of interest and in cin :

costs, and is between-- ' 4, All appendices, petitions, motions

(1) citizens of different States; _ | and briefs, orinted for the use of the

ese court must be in such form and size that

(a) The word "States" as used in this | they can be ccnveniently bound toge-

section includes the Territories, the : ther, so us tc make an ordinary octavo

District of Columbia, and the Common- 3 volume. having pages 6-1/8 by 9-1/4

wealth of Puerto Rico. inches and tyne matter 4-1/6 by 7-1/6

tnches, exc2pt that appendices in patent

28 UseS.Ce, Section 1361: ese cases aay be printed in sucn size as

49 noc2asary to utilize copies of

The district courts shall have ori- vatent documents.

ginal jurisdiction of any ection in

the nature of mandamus to compel an i U.S. Supreme Court Rvie 53 (5):

officer or employee of the United

Stetes or any agency thereof to per- 5, While making ague allowance for cases

form a duty owed to the plaintiff. DMeSel:iced wider this rule by persons ap-

i csering Dre ge, Uno cleits wlll refuse

U.S. Suvreme Court Rule 13 (2): . eo, ro receive anv motien for leave to

| voxeed in forma pownsris when it

Counsel for the appellant shall enter a ine papers submitted therewith

his appearance, pay the docket fee, | do rot ennply with the substance of

and file, with proof of service as this court's ruies, or when it appears

- of a printed statement as to juris-

diction, which shall comply in all

respects with Rule 15. The case will

then be placed on the docket,

ously out of time.

U.S. Supreme’ Court Rule 21 (3) in part:

Counsel for the petitioner shall file

with the clerk of this court, with proof

of service as provided by Rule 33, |

forty copies of a petition which shall

comply in all respects with Rule 23

and shall enter his appearance and pay |

the docket fee. The cage will then be : ‘

Cink ettenal 10h ab ban BOE EE Sins che aides

Sees

APPENDIX B

Copies of Orders and Opinions of Courts

2 ews

SH

~—* a

’

a 2

UNITED STATES DISTRICT COURT,

_ NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Name of: Presiding Judge, Honorable_George li»

: Leighton

Cause No._77_C 4228 Date_July 5, 1978

Title of Cause__Panko v. Rodak

Brief Statement of ilotion _ Order

/sf Leighton, J, .Thrys case is dismissed in

07 JUL 1978 its enttrecg mirsuant to* ©

defendaigs® wovion. - [See

Memorandum Order for Details].

i

IN THE UNITED. STATES DISTRICT COURT

FOR FHE NORTHERN DISTRICT OF. ILLINOIS

| EASTERN IVISION ©

GREGORY PANKO,

Plaintiff, 77 C 4228

Before the Hon-~

orable

George N. Leighton

United States

) District Judge

MICHAEL RODAK, JR., et al.,

)

)

)

VSe , )

).

Defendants. )

)

Memorandum Order

ai edbliiai:

Plaintiff Gregory Panko files this suit

against Michael Rodak, Jr, Clerk of the Sup-

“Ss

-reme Cougt:o wthe United States, and Edward - ,

| Ca Schade, Asgistant Clerk of the Supreme Court:

2

ot the United States. From the alleza-

tions of the complaint, it appears that on

more than one occasion plaintiff forwar-

ded a jurisdictional statement and peti-

tion for writ of certiorari to defendants, ...

which were returned to plaintiff for

failure to comply with the -vrinting.-requ-"

{rements of Supreme Court Rule 39. After

an exchangé of correspondence between —— - -

plaintiff and the defendent clerks, plaintiff

submitted mottons to dispense with the prin

ting requirements of the rule, Plaintiff

now sues defendants for their failure to

docket the documents forwarded to them and

their failure to forward the motions to dis~

pense with the printing requirements to

the Justices of the Supreme Court for rulings

Plaintiff asks that a mandamus issue directing

defendants to docket plaintiff's petition for

<writ:af..certiorart and jurisdictional-state~ .

ment or, in the alternative, to submit tie —

respective motions to dispense with printing

to the Justices of the Supreme Court for

ruling. In addition, vlaintiff asks for

damages in excess of $10,000. Jurisdiction

for this action is invoked pursuant to 28 |

U.S.C Sections 1361, 1331, and 1332. The

cause is before the court on defendants’

motion to dismiss for failure to state a

claim and for want of jurisdiction pursuant

to Rule 12, -Fed.R.Civ. Pe

.: In accordance with defendants’ motion,

this court holds that this a proper case for

extension of judicial or quasi-judicial immu-

nity to defendants, Defendants are non-judi-

cial personnel who like judges must not be

unduly inhibited in the exercise of, discre~

tionary ‘alithortty to return documents not ‘in.

conformity with the rules by the constant .

ao.:* .

.Clear right to the relief sought; (2 Ly 5

Plainly defined and preemptory (sicjduty . - . ¢:

on the part of the defendant to do the act . eos

3 -

fear of personal liability: for damages.

Accordingly, this court holds, them immune

from suit for damages. See Smith v en-

bat, 60 Fs 20 1019 (30 Cire 1972)¢ Darks

ve McAteer, 431 F. 2a 81 (8th Cir. £970);

Brown ve Dunne, 409 F. 24 341 (7 Cire, 1969);

gimmermen Vs Spears: 128 Supp. 759 (WeD.

Tex. 1977). The only remaining issue is .

whether plaintiff ig.entitled to mandamus.

Mandamus is an extraordinery remedy

reserved for extraordinary causes and is- to

be issued only in the most compelling of

cases. See Platt v. Minnescta Min. & Mf

Paes 376 UsS. 2 1 ; Carter v. Seamans,

ATi Fe. 2a 767, 773 (5 Cir. 1969?, Three - —

elements are applicable to test.the appro- — --

priateness of granting nandamus:* (3) 5 a

a

in-question; and (3) unavailability of .ano- .

ther. adequate remedy. See Holmes v,. United. .-°

States of Parole, 541 F. 2d ions, —

e fsic} Cir. 1 - in light of plaintiff's

fatlure to provide defendants with a peti-

tion fn conformity with Supreme Court Rule

53 and the discretionary authority vested in

defendants, pleintiff has failed to estab=

lish a clesr, ministerial, :and nondiscre-:

tionary authority on defendants*: behalf.

Accordingly, the:claim for mandamus is .

dismissed. . | ; Bis: See

So ordered ~ This

States District Judge. ~

Dated: July 5, 1976 ‘ S, 2taQ9 ih

a epee

Ph ancy feet Go tieum Order

vive eve STALES VOURT OF APPEALS

For the Seventh Circuit

Chicaro, Illinois 60604

CPEGORY PANKO,

Piaintiff-Appellant,

NO o.. 78-2206 V8e

and as Clerk of the Supreme Court

of the United States, and EDWARD

)

a. )

MICHAEL RODAK, JRe, Individually . ;

),

C,. SCHADE, Individually and as )

)

Appeal from

the United

States Dis-

trict Court

for. the Nor-

thern Dis-

trict of Il-

linois, Eas-

Assistant Clerk of the Supreme Court ) tern Divi-

of the United States, sion.

Defendants-Appellees.. ©

: Se, ; No. 77-C=-4228

$5 George N,.

, Leighton,

Judge.

This cause came on to be heard on

transcript of the record from the United

States District Court for the Northern

trict of Illinois, Eastern Division, -

the |

Dis=

on consideration whereof, it is ordered

and adjudged by this court that the judgment

of the said District Court in this cause appe-

aled from be, and the same is hereby, AFFIRMED,

with costs, in accordance with the order

cf this court entered this date.

In the

| ‘United States Court of Appeals

For the Sruenth Cirrutt

No. 78-2206

GREGORY PANKO,

Plaintitt-A ppellant.

r |

MICHAEL RODAK JR., Individually and as C 'erk of the

Supreme Court of the United States, and EDWARD C.

SCHADE, Individually and as Assistant Ciersx of the

Supreme Court of the United States,

Defendants-A ppellees.

Appeal from the United States District Court for ine

Northern District of Illinois. Eastern Divisior.

No. 77-C-4228—George N. Leighton, Judge.

SUBMITTED JULY 31, 1979—DECIDED AUGUST 1. 1979*

Before SWYGERT, CUMMINGS and Wo<D. Circuit

Judges. :

CuMMINGS, Circuit Judge. Plaintiff Gregory Panko

appeals from the judgment of the district court dismiss-

ing his pro se action for mandamus and dar.ages.’ The

* This appeal was originally decided by unrepert<d ord=r on

August 1, 1979. See Circuit Rule 35. The Cour: has si9se-

quently decided to issue the decision as an opin:on.

| After preliminary examination of the briefs. the court

notified the parties that it had tentatively conelused that oral

argurnent would not be helpful to the court in irc: case. The

(Foutnote. continued or. folowing page)

9 No. 78-2206

defendants are the Clerk and an Assistant Clerk of the

Supreme Court of the United States. We affirm the dis-

trict court’s judgment.

This case arises out of Panko’s attempts to obtain

Supreme Court review of the decisions in two other law-

suits he is prosecuting pro se, one from this Court and

one from the Illinois courts. The defendants returned

Panko’s petition for certiorari in the federal case and

jurisdictional statement in the state case for failure to

comply with Supreme Court Rule 39 regarding the print-

ing of documents submitted to the Court. ped

parts of the appendixes to each document had been

reduced in size through photo-copying and failed to com-

ply with the print-size requirements. S. Ct. Rule 39(i).

In each case Panko resubmitted the documents,

without change, along with a motion to dispense with

the printing requirements. In the motion to dispense

with printing as to the petition for certiorari Panko

relied on the fact that a similar motion was granted by

the Court in Calley v. Callaway, 423 U.S. 888 (1975),

cert. denied sub nom. Calley v. Hoffman, 425 U.S. 911

(1976), and stated that he had a January 5, 1977

deadline to meet for filing a petition in the Illinois

Supreme Court. This motion to dispense with printing in

the United States Supreme Court was not received at

the Clerk's office until February 18, 1977, however.?

In the motion to dispense with printing as to the

jurisdictional statement. Panko again relied on Calley,

supra, and stated tnat his jurisdictional statement in an

earlier appeal to the Court* had been accepted by the

1 continued :

notice ody that any party might file a “Statement as to

Need for Oral Argument.” See Rule 34(a). Fed. R. App. P.

(effective ay 5 1. 19791: Circuit Rule 14(f). No such statement

~— —_ iled. the appeal has been submitted on the briefs

and record.

2 In this complaint. Panko alleged that delivery of this mo-

tion to the Court was attempted on December 18. 1976. but

was unsuccessful.

3 Panko v. Donovan, 415 U.S. 953 (1974) (that appeal carried

a 1973 docket number). .

No. 78-2206 3

Clerk’s office for filing despite the attachment of

materials similar to those attached to the jurisdictional

statement at issue here.

_The defendants again returned the petition for cer-

tiorari and the jurisdictional statement as well as the

motions to dispense with printing without filing any of

-them and without submitting the motions to the Court

for decision.

Panko then filed suit in the district court seeking

mandamus under 28 U.S.C. § 1361 directing the defen-

dants to file his petition for certiorari and jurisdictional

statement or to submit the motions to dispense with

printing to tne Court for decision.4 The complaint also

sought damages. The district court granted defendants’

motion to dismiss. The court held that defendants were

protected from damage liability by absolute judicial or

quasi-judicial immunity. The. court further held that

Panko had failed to allege a clear right to the man-

damus relief sought.

In order to obtain mandamus relief. Panko was re-

quired to establish three elements: a right to have his

papers filed or submitted to the Court: a plainly defined

and peremptory duty on the part of the defendants to

file or submit them; and the absence cf any other ade-

uate remedy. Trinity Mem. Hosp. v. Associated Hosp.

Serv... Inc.. 570 F.2d 660, 666 n. 9 (7th Cir. 1977); Holmes

v. United States Bd. of Parole, 541 F.2d 1243, 1247 n. 5

(7th Cir. 1976) (overruled in part not pertinent to this

point in Soluwmon v. Benson. 563 F.2d 339 (7th Cir.

1977)). As tne district court held, Panko’s complaint

failed to allege the first two elements.

Although the petition for certiorari and jurisdictional

statement submitted for filing are not included in the

record in this appeal, the allegations of the complaint

—_—=—_—

‘ Section 1301 provides:

The district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or

employee of the United States or any agency thereof to

perform. a duty owed to the plaintiff.

4 | No. 78-2206

show that parts of the appendixes to these documents

had been reduced in print size and failed to comply with

the Court's Rule 39. Thus, Panko had no right to have

these documents filed. In addition, the Supreme Court’s

order in Snider v. All State Administrators, Inc., 414

U.S. 685 (1974), places a duty upon the defendants to re-

ject any document subject to Rule 39 which fails to com-

ply with the Rule. Therefore, the defendants had no

plainly defined and peremptory duty to file Panko’'s peti-

tion for certiorari or jurisdictional statement. See Stern

and Gressman, Supreme Court Practice § 6.23, pp. 448-

453 (5th ed. 1978) (hereinafter Stern & Gressman).

Nor did Panko have a clear right to have his motions

to dispense with printing submitted to the Court. In

Snider v. All State Administrators, Inc., supra, the

Court denied such a motion, noting that no motion and

affidavit to proceed in forma pauperis had been filed.

The Court said that “generalized allegations of inability

to afford” printing costs were insufficient and that

motions based on such allegations were disfavored. The

Court did say that it has authority to waive its rules “in

appropriate circumstances.” But the Court went on to

say that it is not disposed to waive the printing re-

quirements.

_ The leading treatise on practice before the Court has

interpreted Snider to mean that the printing re-

quirements will not be waived without a motion suf-

ficient to establish a “right to proceed in forma

pauperis.. Stern & Gressman at 451. Regardless of

whether the Court might find other “appropriate cir-

cumstances” justifying waiver of the printing re-

quirements. Pankos motion made no attempt to allege

such circumstances and was insufficient on its face.

Panko’s reliance in both motions on Calley v.

Callaway. supra, 423 U.S. 888, was patently meritless.

The order in Calley granting leave to dispense with

printing portions of the appendix in that case was based

on the circumstances presented in the motion in that

a

No. 78-2206 5)

case and applied to that case alone.* Panko’s interpreta-

tion of Calley as a general rule permitting the filing of

any “legible” appendix material is impermissible

because it would nullify the requirements of Rule 39(1)

for all cases. His attempt to rely on a state court

deadline in the motion relating to the petition for cer-

tiorari had no merit because the deadline was passed

before the defendants received the motion and thus

could not excuse the failure to comply with Rule 39. And

the statement in the motion relating to the jurisdictional

- statement that similar documents had been accepted in

an earlier case was irrelevant since from the docket

number assigned to the earlier case, those documents

appear to have been accepted before the Court’s warning

in Snider was issued. ;

The Court's rules make it clear that motions which are

insufficient on their face will not be filed by the Clerk's

office. See ¢.g. S.Ct. Rule 53(5). Thus Panko had no

clear right to have his motions submitted to the Court.

These rules also establish that defendants had no duty to

submit Panko’s facially insufficient motions.

In sum, Panko has failed to allege a clear right to

have his papers filed or a plain duty on the part of the

defendants to file them. Therefore, the district court

properly denied mandamus relief.®

> The motion to dispense with printing in Calley stated that

trere were four lower court opinions in that case totalling 263

rages. These apinions appeared in published reporters, such

as Federal Reporter Second and Federal Supplement which

do not meet Rule 39's print-size requirement and would have

uired reprinting. Stern & Gressman at 452. The motion in

Calley further stated that the costs of such printing “wouid

piace an insurmountable financial burden on your Applicant

who has limited funds and who has virtually exhausted those

fands in the proceedings below. Indeed, —— will be

;auperized uness the said requirements are ispensed with.”

* The distric: court did not address the issue raised by the

defendants whether a district court has jurisdiction over a

mandamus activn against clerks of the Supreme Court.

Aithough there seems to be no authority other than the dis-

(Fuotnete continued on following paye)

a>

6 No, 78-2206

The district court also correctly held that the defen-

dants are immune from Panko’s claim for damages. The

administration and control of the Court’s docket are part

of the Court's judicial function. And in enforcing the

Court's Rules. see S.Ct. Rules 39(4) and §3(5), and ex-

ecuting the Court's directives regarding the docketing of

eases, see Snider, supra, the defendants were carrying

out judicial or quasi-judicial functions within their

authority. Therefore, the defendants are entitled to

judicial immunity from damage liability for their ac-

tions. Brown v. Dunne. 409 F.2d 341, 343 (7th Cir. 1969).

Furthermore, the discussion above shows that Panko

had no right to have his papers filed or submitted which

& continued

trict court case cited by the defendants, Barrow v. North

Carolina, 374 F.Supp. 1249 (W.D. N.C. 1974), which is not

directly on point, it seems axiomatic that a lower court may

not order the judges or officers of a higher court to take an

action. Section 1361 seems to grant ee ae but, if read

literally, the language of § 1361 would allow a district court to

issue mandamus directly against the Justices of the Supreme

Court themselves. Perhaps this difficulty is best analyzed as

going to the district court's discretion to refuse mandamus

relief even if the elements justifying relief had been establish-

ed. See Holmes ¢. United States Bad. of Parole, supra, 541 F.2d

at 1247. Such an analysis would recognize the difficulty or im-

possibility of enforeing an order should the Supreme Court

direct the Clerk's office to ignore it. It would recognize alsa

the unseemliness of a district judge interfering in the policies

and procedures which the Court has adopted to minimize the

"Shey roe difficulties of dealing with its substantial caseload.

ee Stern & Gressman at 38-51; cf. id. at 680-681 (regarding

the need for. and concern of the Clerk’s Office for. uniformity

in printing appendixes). These considerations of judicial dis-

cretion provide an alternate basis for affirming the district

court’s denial of mandamus relief. In addition. analyzing the

doubts about the district court's power to entertain a petition

for mandamus against officers of a higher court in terms of

judicial discretion leaves open the goed of such relief if

it could ever be shown, for example. that a clerk of a higher

court unjustifiavly refused to docket a case and then un-

reasonably blocked all attempts to obtain relief from that

refusal from the higher court uself. In this case. as discussed

above. both the refusal to docket Panko's cases and the refusal

to submit his motions to the Court were fully justified.

9

ee et

the defendants could have violated; and that the defen-

dants had no duty to file or submit the caer which

could have been breached. Thus regardless of the defen-

dants’ immunity, Pank :

the iieieate. anko had no right to damages from

Accordingly, the jud fatal ,

Pio gly J gment of the district court is af-

wee"

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 4412—Midwest Law Prihting Co., Inc., Chicago—i0-2-79—300