Petition for Writ of Certiorari — Whitmer v. City of Chicago

—

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| 9H-i8v9 Supreme court, WS |

FILED

MAY 3. 1991

No. | orice OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

CITY OF CHICAGO, A Municipal Corporation, Plaintiff

and

JOAN P WHITMER,

Petitioner

Vv

JOHN HANCOCK MUTUAL LIFE INSURANCE CO.,

SUDLER & CO., and HOMEOWNERS ASSOCIATION,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE

ILLINOIS APPELLATE COURT

Joan P Whitmer

Petitioner

American Citizen on her own behalf

221 ardridge Place, DeKalb IL 60115

815/758-7272

May 1991

LAWthorityY® May 1991

ee

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

CITY OF CHICAGO, A Municipal Corporation, Plaintiff

and

JOAN P WHITMER,

Petitioner

v

JOHN HANCOCK MUTUAL LIFE INSURANCE CO.,

SUDLER & CO., and HOMEOWNERS ASSOCIATION,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE

ILLINOIS APPELLATE COURT

Joan P Whitmer

Petitioner

American Citizen on her own behalf

221 Pardridge Place, DeKalb IL 60115

815/758-7272

May 1991

LAW thority? May 1991

Se ee

QUESTIONS PRESENTED

Whether the courts have a right to force Petitioner back

into the courtroom

* without the right to have the defendants’ file a proper

answer to her complaint the case below;

* without the right and the time for discovery;

* with orders to go to trial with an unreal, unfair,

prejudicial time limitation;

* with her issues so improperly limited and defined,

that she will not gain the relief she sought by

intervention eight years ago,

with utter violation of her constitutional rights to due process,

equal protection, and equal access to the courts.

LIST OF PARTIES

The parties are the same as those listed in the caption of

this petition.

Joan P Whitmer is an individual, a non-attomey, plaintiff-

petitioner, on her own behalf, and a private citizen. She was

secretary of the condominium association's engineering

committee and an original complainaint of the health and

safety violations in the John Hancock Center in Chicago.

She was the Plaintiff-Intervenor-Appellant in the courts

below.

li

Te ey

TABLE OF CONTENTS

QUESTIONS PRESENTED i

LIST OF PARTIES ii

TABLE OF CONTENTS ili

TABLE OF AUTHORITIES iv

OPINIONS BELOW 1

JURISDICTION 1

CONSTITUTIONAL and

STATUTORY 2

STATEMENT OF FACTS AND CASE 3

REASONS FOR GRANTING THE WRIT 10

CONCLUSION 30

APPENDIX B

(note: appendix A was deleted)

June 29, 1990 Order of Illinois Appellate Court. B

TABLE OF AUTHORITIES

Cases:

Atlantis Development Corp v United States,

379 F2d 818, 827 15

Blockledge v Perry (1974) 417 US 21 29

Boddie v Connecticut, (1971)

401 US 371 at 377, 91 S Ct 790 28

Caterpillar Tractor Co v Lenckos,

77 Ill App 3d 90, 96; 395 NE2d 1167; aff'd 84 Ill 2d 102;

appeal dism, 463 US 1220 13

City of Chicago v Cohn, 326 Ill 372, 374-375;

quoted in Pettigrew, 67 Ill App 2d 344, 350 13

City of Chicago v John Hancock

Mutual Life Insurance Company,

127 Ill App 3d 140; 82 Ill Dec 166,

468 NE 2d 428 (ist Dist 1984) 6,7

Consumer Product Safety Comm'n

v GTE Sylvania Inc. 447 US 102,

108, 100 S Ct 2051, 2056,

64 Led 2d 766 16

Hill Behan Lumber Co v First National Bank

of Woodstock, 95 Ill App 3d 426,

420 NE 2d 268 17

Klingler Farms v Effingham Equity,

171 Ill App 3d 567, 525 NE 2d 1172, 1175 19

Kneeland v Luce, 1891, 12 S Ct 39,

141 US 437, 35 Led 808 17

Marino v Ragen (1947), 332 US 561, 570,

92 Led 170, 176, 68 S Ct 240 27

iV

Mayer v City of Chicago, (1971) 404 US 189 29

Harold Meyer v Caterpillar Tractor Company,

179 Ill App 3d 268 19

Moehling v Pierce,

3 Ill.2d 418, 121 NE2d 735 27

North Carolina v Pearce, (1969)

395 US 711 29

Pettigrew v National Accounts System Inc.,

67 Ill App 2d 344, 350 13

Rinaldi v Yaeger, (1966) 384 US 305 29

Rock Island YWCA v Bestor (1977),

48 Ill. App3d 761, 765, 363 NE2d 413

at 416 27

Waste Management v Environmental Protection Agency,

137 Ill App 3d 619, 484 NE2d 1128 16

In re Application of Walgenbach,

104 Ill 2d 105, 470 NE2d 997 16

Williams v Oklahoma City,

395 US 458 28, 29

Statutes:

City of Chicago Municipal Building Code, § 78-53(c) 4

City of Chicago Municipal Code, § 11-13-15

(ll Rev Stat ch 24) 5

Ill Rev Stat (1983) ch 110,

q 2-408(f), Illinois Code of Civil

Procedure §2-408(f) 10, 11, 14, 15, 26

45 CFR § 84.1 (1977) 25

Kehabilitation Act of 1973 § 504,

29 USC § 794 (1973) 24, 25

Rehabilitation Act of 1973, Pub L No. 93-112,

87 Stat 355 (1973) 25

28 USC § 1257(3) l

Constitutions

United States:

Fifth Amendment of the United States Constitution 2,21

Fourteenth Amendment of the United States

Constitution 2, 26, 28

Illinois:

Constitution of the State of Illinois 1971

Article I, Bill of Rights,

Section 12, Due Process and Equal Protection 20

Article I, Bill of Rights,

Section 12, Right to

Remedy and Justice 21

vi

aa

Other Authorities:

Illinois Supreme Court Rule 213(c) 18

Illinois Supreme Court Rule 216(c) 18

Illinois Supreme Court Rule 218 20

Illinois Supreme Court Rule 220 18, 19

Illinois Supreme Court Rule 323 20

Illinois Supreme Court Rule 341 21

Vii

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

CITY OF CHICAGO, A Municipal Corporation, Plaintiff

and

JOAN P WHITMER,

Petitioner

Vv

JOHN HANCOCK MUTUAL LIFE INSURANCE CO.,

SUDLER & CO., and HOMEOWNERS ASSOCIATION,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE

ILLINOIS APPELLATE COURT

Petitioner Joan P Whitmer respectfully asks that a petition

for writ of certiorari issue to review the order of the Illinois

Appellate Court, entered in the above entitled proceeding on

June 29, 1990.

OPINIONS BELOW

The December 4, 1990 order by the Illinois Supreme

Court is not reported. The Illinois Supreme Court denied the

petition for leave to appeal. (#70773)

The June 29, 1990 order of the Illinois Appellate Court,

First Judicial District, Fifth Division, by Justices Michael A

Coccia, Francis A Lorenz, and James J Murrary is not

reported. It is provided as Appendix B. (note: there is no

appendix A.)

The August 16, 1990 order of the Illinois Appellate Court,

First Judicial District, Fifth Division denied Petitioner's July

23, 1990 Motion for Leave to File Instanter her Petition for

Rehearing.

JURISDICTION

The jurisdiction of this Court is conferred under

28 USC § 1257(3).

State courts; appeal; certiorari.

Final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be

reviewed by the Supreme Court as follows: * * *

By writ of certiorari, where the validity of a.. statute of

the United States is drawn in question or where the

validity of a State statute is drawn in question on the

ground of its being repugnant to the Constitution, treaties

or laws of the United States, or where any title, right,

privilege or immunity is specially set up or claimed under

the Constitution, treaties or statutes of, or commission

held or authority exercised under, the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fifth Amendment of the United

States Constitution:

“No person shall . . . be deprived of life, liberty or

property without due process of law; nor shall private

property be taken for public use, without just

compensation.”

and the Fourteenth Amendment to the Constitution of the

United States, Section One:

“...nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.”

On February 20, 1990 Petitioner made a_ timely

application to Associate Justice John Paul Stevens for an

extension of time to file her petition for writ of certiorari.

Justice Stevens’ February 21, 1991 order extended the time

for filing to and including May 3, 1991. (Number A-639.)

However, the United States Court of Appeals for the

Seventh Circuit scheduled the same May 3, 1991 for the

filing of Petitioner Joan P Whitmer and her husband Frank L

Whitmer's brief and short appendix in their joint appeal #90-

2888 in that court. Petitioner Joan P Whitmer had notified

that court and personally filed at 9:00 the morning of

April 22, 1991 a motion to stay or delay proceedings in that

court so as to not conflict with the filing in this Supreme

Court of the United States on that date.

Unfortunately, when the United States Court of Appeals

for the Seventh Circuit reinstated plaintiffs-appellants' appeal

in that court on April 25, 1991, after a dismissal upon

defendants’ misleading motion, they specifically ordered

briefing also on May 3, 1991.

Petitioner asked for a stay of the United States Court of

Appeals for the Seventh Circuit briefing demand by this

United States Supreme Court on April 29, 1991 (number A-

822 that is still before this court) because of the prejudicial

impossibility of preparing two briefs within five working

days on the same day. This has terribly prejudiced both the

preparation of this Petition for Writ of Certiorari and that

United States Court of Appeals for the Seventh Circuit brief

on the merits.

STATEMENT OF FACTS AND THE CASE

Petitioner was a citizen complainant to the City of

Chicago about the inadequate ventilation and pollution in her

apartment in the John Hancock Center in the City of Chicago.

The Chief Mechanical Equipment Inspector of the

Department of Inspectional Services for the City of Chicago,

and an inspector inspected her apartment, the corridors and

the parking garage at the John Hancock Center.

They found it to be lacking in proper code required,

minimum ventilation, both natural and mechanical. On July

22, 1983 the City of Chicago, based upon Petitioner's

complaint to them, filed its complaint and suit against

defendants John Hancock Mutual Life Insurance Company,

Sudler & Co and 175 East Delaware Place Homeowners

Association. The City's complaint alleges that the defendants

were required, but failed to maintain and operate the

ventilation system in the John Hancock Center in accordance

with the minimum specifications mandated by the Municipal

Code of the City of Chicago.

On December 2, 1983 the City of Chicago filed an

amendment to its complaint stating that every window, other

than a fixed window, shall be capable of being easily opened

and shall be held in position by window hardware. The

existing “windows” in the residential portion are not truly

operable windows. They are emergency access panels and

never had the hardware needed for them to be opened by the

residents. To this date as far as Petitioner knows, the

“windows” require a screwdriver to open or to lock them

closed, in clear violation of Section 78-53(c) of the City of

Chicago's Municipal Building Code and the minimum

mandatory health and safety requirements

To remedy thes¢ violations, the City asked that the Court

levy a fine for each days violation, enter a temporary and

permanent injunction, appoint a receiver to bring the property

into compliance with the Municipal Code of Chicago, and/or

order demolition of the building. (1R C5)

Injunctive relief was sought because “William L Duggan,

the duly appointed Commissioner of Inspectional Services,

City of Chicago, has determined said building to be

dangerous and unsafe or uncompleted and abandoned.” (Id.)

Since the City of Chicago made no legal effort to inspect

any other unit, and had done no discovery whatsoever,

Petitioner asked her attorneys, Jenner & Block, to file her

verified petition for intervention with her verified complaint.

On August 30, 1983 her attorneys filed a petition for

intervention in this lawsuit. (1R C26). Petitioner pleaded

ownership of a unit (8504) in the Hancock Center which her

family and Petitioner were unable to occupy, because the

defendants failed to provide adequate ventilation. (1R C27,

28b)

In the verified complaint filed as Intervenor (1R C28a)

Petitioner alleged Petitioner was the owner of unit 8504 in

the Hancock Center in Chicago, Illinois (1R C28b) and

further alleged occupancy of the unit from August 31, 1977;

and continuously from March 14, 1979 to June 22, 1981,

when “for reasons of family health, she was forced to change

her residence.” (Par 3, 1R C30).

This Verified Complaint, in part, adopts the City's

allegations of violations. However, her complaint is specific

to the contamination of her unit in the same building, plus a

more inclusive charge pertaining to the entire ambient

atmosphere not only of the public places, but of the general

pollution throughout the entire plant. Petitioner's interest is

substantially different from that of the Homeowners

Association. Petitioner has been effectively evicted from her

home by the failure of the defendants to remedy the

ventilation defects. The danger to her health, as well as that

of her family, and the urgency of her interest in seeing that

the ventilation defects in the John Hancock Building are

corrected, are clearly alleged in her Verified Petition for

Intervention and Verified Complaint. See Verified Petition

for Intervention, Paragraphs 4, 6, 7; Verified Complaint,

Paragraph 3. The fact is that Petitioner moved to protect her

health and her family's health. However, even though no one

has occupied her unsafe apartment for almost ten years,

Petitioner still pays all taxes, mortgage, expenses, assessment

and maintenance for her unit.

The violations of law forcing her out of her unit “include,

but are not limited to, those stated in [the City's] complaint in

this action.” (Par. 6, id.)

Petitioner prayed for a declaration that the building was in

violation of the Municipal Code, Par 11-13-15 (Ill Rev Stat

ch 24); and a mandatory injunction on the defendants to abate

the violations (1R C30).

Petitioner's Verified Petition to Intervene alleges in

pertinent part that as an owner of a condominium unit in the

building, Petitioner had a direct interest in this City suit

because she was the person who initiated the city complaint

and whose health, safety, and property interests were directly

threatened by the actions of the defendants in permitting the

building to remain without adequate ventilation since it was

built in 1969.

The trial court (Hon. Simon S Porter) denied Petitioner

Joan P Whitmer leave to intervene on September 13, 1983.

Immediately following the trial court's denial of her petition

for intervention, Jenner & Block filed a notice of appeal on

her behalf on September 14, 1983. (1R C134). On August

17, 1984 the Appellate Court ordered Joan P Whitmer's

intervention as a plaintiff as of right without any restriction.

127 Ill App 3d at 140. Rehearing denied, id., at 148.

The Appellate Court reversed the denial of intervention,

rejecting the parties' (City, Hancock and Homeowners)

arguments of adequate representation. (id., at 148) “***,

the letter and spirit of the statute can only be advanced by

allowing intervention in this case.” (id., at 150)

On March 22, 1985 the mandate of the Appellate Court

directed that Petitioner was then a Plaintiff-Intervenor.

While her appeal for intervention was pending, party

pleadings, papers, orders, and motions were filed (1R C135

to C265). The time was from September 13, 1983 (order

denying intervention) to March 22, 1985 (mandate to Circuit

Court). (See orders: 1R, C206; C227-29; C260-61; C262-63)

all affecting the basic issues of the complaints; none of which

improved conditions in the building; or advanced the case;

or, resolved an issue or issues.

While the appeal was pending, the circuit court case

proceeded. Three major orders were entered during this

period.

John Hancock Mutual Life Insurance Company and the

City of Chicago entered into an agreed, stipulated, consent

decree for the garage parking ventilation. (Transcript of

Proc Jan 11, 1984, p 4, 5, 33, 35.) The order was entered

January 17, 1984. (C 227.)

Two additional orders were entered June 8, 1984 (C 260,

262.) One affected mechanical ventilation, the second stated

the “windows” were openable and operable. At the May 22,

ee

ee eT

1984 hearing, the City stated the approved orders were the

result of a pre-trial conference—the City and defendants had

come to a basic agreement but were still hassling over the

form of the order. (Transcript of Proc May 22, 1984 p3.) |

One June 8, 1984 order was for the mechanical ventilation

for the condominiums (it is a central system) which stated:

“It appearing ...” and “It further appearing .. . and that

there has been no trial of the matters alleged in the

Complaint as to the ventilation system, and that there have

been no finding of fact or conclusion of law or

adjudication made .. .” (C 262)

Petitioner was not yet an Intervenor and had no input or

Standing in the drafting of any of these orders. The court and

defendants proceeded in spite of the pending intervention and

her pending Complaint.

At two separate hearings the trial court judge stated:

“you may have an action against John Hancock or even

against the city for malfeasance.” (March 7, 1984

transcript page 185.)

“they may have an action against the city - - they may

have an action against the builders,...” May 2, 1984

transcript page 21.

On May 2, 1984 the law firm of Wilson & Mcllvaine

announced to the court its appearance as additional counsel

for defendant 175 East Delaware Place Homeowners

Association. That law firm, now Burke Wilson & Mcllvaine,

has represented all three defendants since that time.

When the mandate came down on March 22, 1985,

Petitioner's rights to be heard and to have relief were clearly

established.

City of Chicago and Joan P Whitmer v John Hancock

Mutual Life Insurance Company, Sudler and Company,

and Homeowners Association. 127 ill App 3d 140, 468

NE 2d 428.

ae

Supplemental Opinion on Denial of Rehearing September

28, 1984. Denial of Leave to Appeal by Illinois Supreme

Court February 5, 1985. (id., 101 Ill2d 588.)

After the mandate granting intervention on March 22,

1985 (C 265), no orders or pleadings until October 10, 1985

are shown in either the defendants own chronology (p25

following C1024) or the Record on Appeal. However,

defendants were insistently and aggressively deposing her

consulting experts, and everyone was trying to force

Petitioner into a settlement that would barely cover the value

of her condominium, and without the health information the

physicians insisted they needed.

Counsel withdrew on October 10, 1985 (1R C267-72)

over her written objections. (1R C273-275). On November

13, 1985 the appearance of new counsel was filed for

Petitioner. (1R C279).

Defendants proceeded, over her objections, to depose her

consultants, while Petitioner received no discovery in return.

(C 283, 285) Her interrogatories remain unanswered.

Defendants' answers, if any, to her interrogatories are not in

the record.

On December 23, 1986 an order was entered with a

preface stating, “This cause coming to be heard on the date

set for a pre Trial Conference,” and, concluding with the

words “* * * is continued for a status hearing on January 20,

1987.” (AR C305)

On January 20, 1987 the case was accelerated. Then on

January 21, 1987 her attorney withdrew as her counsel

without notice and over her objections. (2R 317-18).

Petitioner was given only one week by court order to obtain

“new counsel.” (1R C287).

Petitioner's legal fees and expenses have exceeded one-

hundred thousand dollars, without discovery and without

achieving anything but the i//usion of intervention.

Petitioner has been without counsel since that date and has

objected and continues to object to the improper withdrawal

of coun: 2! in violation of Illinois Supreme Court Rule 13, the

Code of Professional Responsibility 2-110 and Cook County

Circuit Rule 1.4, and the statutes.

On March 11, 1987, without discovery or participation, a

“trial” was held on the single issue of converting the

emergency access panels to openable and operable

“windows.”

She filed her notice of appeal April 10, 1987 in objection

to the trial court's proceedings.

The subsequent Appellate Court order “narrowed the

issue in appeal number 87-1211 solely to the propriety of the

March 11, 1987, order...” (B6) and the Appellate Court

thereby improperly restricted her unrestricted intervention as

of right, contrary to the Illinois intervention act provisions

such as Section 2-408(f).

July 20, 1990, Friday, was the due date of the Petition for

Rehearing. However, extreme illness of Petitioner's husband

compelled the filing of her Motion to Extend Time to File

Petition for Rehearing due to “extreme and compelling

circumstances.” It was timely mailed Friday, July 20, 1990.

Petitioner was then able to file her Petition for Rehearing that

next Monday, July 23, 1990 but on August 16, 1990 the

Appellate Court denied Plaintiff-Intervenor-Appellant's

Motion for Leave to File Instanter Petition for Rehearing.

(The order did not refer to the timely July 20, 1990 “Motion

to Extend Time to File Petition for Rehearing” which was

never ruled on.) Her subsequent petition for leave to appeal

to the Illinois Supreme Court was denied on

December 4, 1990.

REASONS FOR GRANTING THE WRIT

Intervention

It is a matter of record that the City as plaintiff, and the

Association as defendant, were inadequate in their purported

representation—that Petitioner had her own interest in her

health, in her atmosphere, in the correction of the defects in

the building and in her determination for self protection.

(See 147 Ill App 3d at 145.)

Petitioner could have instituted her own action or

proceeding but chose instead to file her Complaint with the

suit filed by the City of Chicago, as a proper intervention.

By statutory requirement there are two complaints filed in

this case—first, the one filed by the City of Chicago on July

22, 1983; second, the verified one filed by Joan P Whitmer

on August 30, 1983 and mandated by the Appellate Court on

March 22, 1985 without restriction, as of right. It is separate

and distinct from the City of Chicago's case against the

defendants. Petitioner's case is a separate and distinct cause

of action of defendants’ wrongs against her.

The law requires that a separate complaint be filed by a

prospective intervenor. Until Petitioner's apartment is fit for

her to live in, Petitioner is deprived of her property without

due process of law.

Petitioner Joan P Whitmer was granted leave to intervene

in the lawsuit as a matter of right, without restriction, by an

opinion of the Appellate Court First District rendered on

August 17, 1984.

The Appellate Court, in granting intervention to Petitioner

under J/l Rev Stat (1983) ch 110, J 2-408(f), (Illinois Code of

Civil Procedure § 2-408(f)), stated,

“lwje hold that the trial court erred in denying the

petition to intervene. * * * the order of the circuit court is

reversed and this cause is remanded for further

proceedings.”

10

ee

It is these “further proceedings” which the trial court then

constantly refused to enforce.

Following the granting of Complainant and Plaintiff-

Intervenor Joan P Whitmer's original intervention, as of right,

without restriction, the Illinois trial court, plaintiff City of

Chicago, and the defendants continually denied and

prevented Petitioner's active participation, her representation

by counsel, any discovery, did not answer her complaint or

permit its amendment, and refused to act upon her motion to

default the defendants for failure to answer her complaint.

Therefore, upon order and stated termination of the

proceedings on March 11, 1987, Petitioner filed another

appeal on April 10, 1987.

However, in this second appeal (87-1211) the appellate

court, in ordering “further proceedings” has denied and

restricted this Petitioner from the right to the “further

proceedings” of her complaint. |

The June 29, 1990 Appellate Court order is redefining the |

intervention statute by limiting her to the March 11, 1987 |

order.

The Appellate Court cites Section 2-408(f) of the /llinois

Code of Civil Procedure in its opinion (B9):

“An intervenor shall have all the rights of an original |

party, except that the court may in its order allowing |

intervention, whether discretionary or a matter of right,

provide that the applicant shall be bound by orders or

judgments, theretofore entered or by evidence theretofore

received, that the applicant shall not raise issues which

might more properly have been raised at an earlier stage

of the proceeding, that the applicant shall not raise new

issues or add new parties, or that in other respects the

applicant shall not interfere with the control of the

litigation, as justice and the avoidance of undue delay

may require.” (Emphasis added.)

The Appellate Court's June 29, 1990 order is not

permitting Petitioner to intervene in the manner prescribed by

the statute. No restrictions were placed on Petitioner by that

Court when it originally granted her intervention. That was

the only time, according to statute, that that Court could have

restricted the scope of her intervention. That was the only

time either Court could have done so. Neither the trial court

or the Appellate Court restricted her intervention at that time.

It is a denial of due process for either court to attempt to

restrict Petitioner now. That opportunity was passed by both

the trial and appellate courts, but now this Appellate Court is

going back to restrict the intervention, years after it was

originally granted. This is manifestly unfair, prejudicial and

contrary to the intent of the intervention statute. It is

therefore a denial of due process.

The Illinois Appellate Court, in its June 29, 1990 order in

this appeal, again reversed the trial court order appealed

from, finding in Petitioner's favor, and stated:

“Once this court recognized Whitmer's right to intervene,

it was incumbent upon the circuit court to follow our

mandate and allow her.to participate fully in the case on

remand.” * * *

“and remand the cause for a hearing on the merits of her

complaint.”

However, the Illinois Appellate Court, in violation of the

Illinois intervention statute as well as the Illinois Supreme

Court Rules and the Illinois Civil Practice Act, then

contradicted that statement by ordering a stricture to be

enforced which denied her all of the foregoing.

“35 days to retain new counsel, * * * evidentiary hearing

shall be held 35 days thereafter” (B10)

This order does not permit Petitioner to develop her case,

properly participate in the proceedings, and be heard on her

12

Sy |

issues and on her inquiries. (Caterpillar Tractor Co v

Lenckos, 77 Ill App 3d 90, 96; 395 NE2d 1167; affd 84 Ill 2d

102; appeal dism, 463 US 1220).

It is now this Appellate Court, not the trial court, which is

placing the restrictions on the intervention after the appeal

was filed April 10, 1987. It is wrong for the Appellate Court

to now put limitations on the rights of the intervenor.

“The guaranty of due process of law requires that every

man shall have the protection of his day in court and the

benefit of the general law, a law which hears before it

condemns, which proceeds not arbitrarily or capriciously,

but upon inquiry, and renders judgment enly after trial, so

that every citizen shall hold his life, liberty, property, and

immunities under the protection of the general rules which

govern society (Citations) * * * The essential elements of

due process of law are notice and an opportunity to be

heard and to defend in an orderly proceeding adapted to

the nature of the case.” (City of Chicago v Cohn, 326 IIl

372, 374-375; quoted in Pettigrew, 67 Ill App 2d 344,

350). (Emphasis added.)

In a prelude to that quotation the Court said:

“procedural aspects of due process and equal protection

of the laws require that a person be given * * * an

opportunity to be heard” and to present her case “in an

orderly proceeding adapted to the nature of the case.”

(Pettigrew v National Accounts System Inc., 67 Ill App 2d

344, 350.)

In specifying the scope of due process in litigation, the

court explained:

“A fundamental requisite of procedural due process is

that every man shall have the protection of his day in

court and the benefit of an orderly proceeding according

13

to the general law or established rules; and that the

hearing shall not be arbitrary, but rather shall afford to

him an opportunity to be heard

* * *

and shall assure to him an inquiry on the issues of the

case, wherein judgment is rendered only after trial. There

must be an intrinsic fairness of procedure by which any

judgment, order or decree is rendered. This is essential to

the untainted administration of justicesthe most cherished

aspect of our judicial system.” (id., at 351)

In each aspect of this case the administration of justice is

tainted by a failure to observe those safeguards quoted above.

“Tested by these standards, we find that appellants were

not afforded the due process guaranteed them by our

Constitutions. What is, or is not, a denial of due process

does not readily lend itself to any refined definition, but it

can be rendered progressively more clear by the course of

litigation. Where, however, the procedure followed by a

court is so lacking ina principle or principles basic to our

system of justice that it offends the system, that procedure

must be condemned as a denial of due process.” (id.,

at 351)

Meaningful due process has been denied Petitioner. The

intervenor has a right to a fair hearing on the issues, these

untimely restrictions will deprive her of that right and

preclude effective presentation of the her interest.

“Sub rosa” restriction has been placed on Petitioner

(intervenor). It is unconstitutional under Section 2-408(f),

and due process of law. By limiting the issues, in effect the

appellate court is binding Petitioner to the earlier trial court

orders entered prior to the granting of intervention in March,

1985 and contrary to the intervention statute and the

appellate court's earlier opinion granting intervention as of

right without restriction. Had the appellate court originaliy

14

restricted her, she could have appealed the restriction and/or

decided not to intervene at that point instead of wasting time

and money. She could have filed an independent suit and/or

a post judgment intervention. The appellate court has denied

her the protections of the statute in violation of due process,

equal protection, and equal access to the courts.

“

. .. It hardly comports with good administration, if not

due process, to determine the merits of a claim asserted in

a pleading seeking an adjudication through an adversary

hearing by denying access to the court at all.”

Atlantis Development Corp v United States, 379 F2d

818, 827.

By placing a mandatory 35 day period, Petitioner is, in

effect, being denied access to the court.

It is a violation of due process to now apply any

restrictions. Petitioner should be allowed to fully develop her

case. At this late date the June 29, 1990 Appellate Court

order is redefining the intervention statute, and its own

original opinion in 1984, by limiting Petitioner to litigation of

the March 11, 1987 order only, which deals only with

window hardware. Petitioner is being denied the full proper

scope of her intervention.

What the Appellate Court's order has done, almost five

years after it originally granted intervention, is to now limit

that intervention, just as the trial court did. Petitioner is

entitled to be heard on all the issues, not just what's left over,

i.e, the shreds of the March 11, 1987 non-order on “window”

hardware.

Petitioner's unanswered verified complaint did not limit

itself to just “tin-foil” window hardware which is of little or

no value in making her apartment less contaminated. A § 2-

408(f) order is relevant with multiple parties-plaintiff. It has

no justification when there is a single plaintiff presenting a

single issue.

15

No issues were decided in the March 11, 1987 order. It

only said provide the hardware, and it did not state that

properly to be enforceable, giving the unit owners (non-

parties) the “option” of complying with a mandatory

minimum health, safety and welfare code. The hardware is

just one small segment of the problem—pollution is the

health problem—and continuing non-compliance with the

City of Chicago ventilation codes. The Appellate Court

order expressing no opinion about the March 11, 1987 order,

is in effect ignoring it.

“AS we express no opinion regarding the merits of the

March 11, 1987 order.” (Bi0)

Petitioner has a right to rely on the clear purpose of the

Intervention Act as expressed by the Joint Committee

Comments [1955] to the Act.

“Intervention is frequently desirable to allow a person to

protect an interest jeopardized by pending litigation to

which he is not a party...”

If statutory language is certain and unambiguous, the

proper function of the court is to enforce the statute as

enacted. Waste Management v Environmental Protection

Agency, 137 Ill App 3d 619, 484 NE2d 1128.

A statute will not be construed so as to lead to absurd,

inconvenient or unjust consequences.

In re Application of Walgenbach, 104 Ill 2d 105, 470

NE2d 997,

and in the same vein,

Consumer Product Safety Comm'n v GTE Sylvania

Inc.447 US 102, 108, 100 S Ct 2051, 2056, 64 Led 2d

766.

Order Not Provide Relief Sought in Complaint.

The March 11, 1987 trial court order does not give

Petitioner the relief she sought in her verified complaint. The

order fails to even recognize the issues of Petitioner's

complaint and certainly has nothing to do with cleaning up

the environmental pollution of Petitioner's condominium

16

apartment. Properly interpreted, “condominium apartment”

includes the whole building as stated in Petitioner's

complaint. To clean up Petitioner's apartment it is necessary

to clean up the entire building.

_ Additionally, a stipulation between the original parties

does not bind intervenors who came into the case afterward.

Kneeland v Luce, 1891, 12 S Ct 39, 141 US 437, 35 Led 808.

Any orders entered prior to March, 1985 were stipulated

orders. This Petitioner officially came into the case when her

intervention was granted in March, 1985. Therefore she is

not bound by the early orders and should be able to address

them.

The rule precluding review of a consent order does not

apply if there exists an equitable basis for vacating the order,

e. g., fraud. Hill Behan Lumber Co v First National Bank of

Woodstock, 95 Ill App 3d 426, 420 NE 2d 268.

Joan P Whitmer has been unconstitutionally denied Due

Process of Law, Equal Protection of the Law, and Access to

the Courts by either the improper acts of prevention of actual

intervention by the trial court, or the by Act itself, and so

pleads.

Petitioner is about to be given a “hearing” but is deprived

of the right to be heard fully and fairly on the merits of her

unanswered, unrestricted, verified complaint in intervention.

Ambiguous Commands

The opinion itself is totally unclear. On one hand the

Court says “participate fully” and on the other hand it

severely limits:

the issues,

pleadings,

amendment,

discovery,

preparation and scope of trial.

Petitioner's rights are taken away to prosecute her case.

How does she “participate fully” when her hands are tied

and she is not given time for:

17

discovery

legitimate litigation procedures

illness

unanticipated contingencies.

The Appellate Court's order makes no provision for

default, nor for time for default, or for the problems of

default—or for an answer to Petitioner's unanswered

complaint by any of the parties.

The appellate court attests to the “complexity of the case.”

(B9) Yet it does not take this “complexity” into

consideration in its strict time requirement for circuit court

scheduling. Petitioner is deprived of the ability to

“participate fully in the case on remand” It is therefore a

denial of due process of law.

Denial of discovery procedures

Petitioner is being precluded from, and denied time for

and the right to discovery. Where is there time for

depositions, interrogatories, admission of facts. or

genuineness of documents? Under Illinois Supreme Court

Rules 213(c) and 216(c) defendants would have 28 days in

which to respond to this discovery. Even assuming they

would answer fully rather than object, only seven days would

remain to prepare for trial.

In effect, the appellate court stresses due diligence, but

ihen proceeds to again send Petitioner (or her attorney) into

battle again in the trial court without time to assemble

evidence. The time restrictions do not give an opportunity to

open up the case of contamination. It is therefore a denial of

due process of law.

The City of Chicago had the very minimal discovery they

wished, and the defendants had over four years to do all that

they wanted.

The appellate court order deprives Petitioner of the

benefits and protections of the mandatory Supreme Court

Rule 220. The disclosure of an expert at least 60 days before

commencement of trial is mandatory, regardless of whether

the trial court issues an order establishing a schedule for

18

disclosure, and even though a 90 day period has not elapsed

from the time the party learns the substance of his expert's

opinion. Klingler Farms v Effingham Equity, 171 Ill App 3d

567, 525 NE 2d 1172, 1175.

The key word is mandatory. Harold Meyer v Caterpillar

Tractor Company, 179 Ill App 3d 268; 533 NE 2d 386, 395.

“Upon remand, the circuit court shall also permit

Whitmer 35 days to retain new counsel. . .. “The

evidentiary hearing shall be held 35 days thereafter.”

(B10.)

Yet Illinois Supreme Court Rule 220 clearly states:

“Expert Witnesses. Disclosure: Expert witness. Where

the testimony of experts is reasonably contemplated,

the parties will act in good faith to seasonably:

. In order to insure fair and equitable preparation for

trial by all parties the identity of an expert who is retained

to render an opinion at trial on behalf of a party must be

disclosed by that party either within 90 days after the

substance of the expert's opinion first becomes known to

that party or his counsel or, if the substance of the expert's

opinion is then known, at the first pretrial conference in

the case, whichever is later.”

* *

“The schedule established by the trial court will sequence

the disclosure of expert witnesses in accordance with the

complexities of the issues involved and the burdens of

proof of the respective parties as to those issues. All dates

set by the trial court shall be chosen to insure that

discovery regarding such expert witnesses will be

completed not later than 60 days before the date on which

the trial court reasonably anticipates the trial will

commence.” ... failure to make the disclosure required

by this rule . . . will result in disqualification of the expert

as a witness.“ (Emphasis added.)

19

Due Process and Equal Protection

“No person shall be deprived of life, liberty or property

without due process of law nor be denied the equal

protection of the laws.”

Constitution of the State of Illinois 1971

Article I, Bill of Rights, Section 2

“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 process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

Constitution of the United States

Amendment XIV, Section 1

The appeal had been made almost impossible from

inception because defendants consistently refused to approve

or cooperate in bystanders reports under Illinois Supreme

Court Rule 323. The courts did not help whatsoever—even

though almost all of the transcripts of the hearings were

missing for the period when she was represented by counsel

and obviously not privy to the proceedings. Petitioner had

been trying diligently for over a year to get what she

considered the critical transcripts and never succeeded.

Later, after an ex parte conversation by the court reporting

firm, the Illinois Appellate Court determined without

substantiation that the transcripts and tapes had been

“burglarized and vandalized.”

Everything possible was made difficult, even the pre-trial

conference totally violated Supreme Court Rule 218(b)

without an order reciting any action taken by the court and

the agreements made by the parties as to any of the matters

considered, and which specifies as the issues for trial those

not disposed of at the conference.

Petitioner's appeal was not fully briefed and argued.

Defendants violated Illinois Supreme Court Rules

20

341(e)(6)(7) and 341(f), by filing a brief that lacked any

citations to the voluminous record. (Appendix B7)

Petitioner had to file objections, moved to strike defendants’

brief and asked for an extension to wade through their

citation-absent brief and appendix of 165 pages. She had

only six days left. Even so, the court denied her motion. She

was unable to finish her reply brief in time and it was never

filed. Actually, the court thereby punished her for

defendants’ willful breach of the rules.

Petitioner has been unable to amend her motions for

sanctions, to have them heard, and never waived her rights to

pursue that relief.

Petitioner has also been unable to determine who is a

party and any such determination has been refused to her in

spite of the extreme conflicts of interest.

Right to Remedy and Justice

“Every person shall find a certain remedy in the laws for

all injuries and wrongs which he receives to his person,

privacy or reputation. He shall obtain justice by law,

freely, completely, and promptly.”

Constitution of the State of Illinois 1971

Article I, Bill of Rights, Section 12

“No person shall . . . be deprived of life, liberty or

property without due process of law; nor shall private

property be taken for public use, without just

compensation.”

Constitution of the United States, Amendment V

DISCRIMINATION

Unequal Demands against pro se non-attorney.

This Petitioner is being treated differently than attorneys

and represented plaintiffs without any constitutional sanction

for the difference in treatment. Instead of granting time and

21

eeoO7O SS

re

scheduling the case as spelled out in the Supreme Court rules

and trial court discretion, she and the trial court are locked

into a shorter, tortured time frame of 35 days. (B10).

Petitioner, a non-attorney pro se person, is held to the

same standards as an attorney and the trial court judges have

so stated: yet she is not given the protections, benefits and

privileges of an attorney.

The courtesies and protections extended to attorneys

virtually automatically are being denied to Petitioner.

Lawyers get discovery. Lawyers have no trouble getting

continuances when there are reasons and the Supreme Court

Rules so provide. Why is this Petitioner being deprived of

these protections and penalized? This is a severe penalty

with a denial of right to due process, equal protection and

equal access to the courts.

Diligence in the prosecution of this lawsuit is desirable

and Petitioner certainly objects to “undue delay.” However,

due process requires that she receive the latitude given to all

litigants to develop her case in a reasonable time, not on an

arbitrary, plucked out of the air time schedule that does not

allow the trial court to control its own docket, provide for

contingencies and is completely artificial.

Unequal Demands—Hearing Handicap.

In spite of the appellate court's stated recognition of her

“disability and the complexity of the case” it set specific

time limits, even shorter than those allowed by the

mandatory Supreme Court Rules. evidentiary hearing

shall be held 35 days thereafter” (B10)

Unequal demands are being made on Petitioner as a non-

attorney pro se plaintiff, with a hearing handicap recognized

by the court in its order. The Court plunges her into a

schedule that would give trouble to a practicing attorney with

a good set of ears. She is expected to pursue her case with

stringent, prejudicial, unrealistic time and _ procedural

22

limitations as a non-attorney pro se plaintiff, with a severe

hearing handicap in a denial of due process of law.

The court's June 29, 1990 order recognized Petitioner's

hearing handicap stating:

“Whitmer brought her hearing disability to the circuit

court's attention before the March 11, 1987 trial as stated

above. (In this court, Whitmer has filed an affidavit

executed by a physician, documenting her handicap.) . . .

Given Whitmer’s complexity of the case...” (A9)

However, the appellate court reduced the amount of time

for Petitioner to prepare her case. Their action is certainly

not “equal to.” This is a violation of due process, equal

protection of the laws and equal access to the courts.

Petitioner has no other adequate means to secure the

desired relief, and will be damaged or prejudiced in a way

not correctable upon remand to the trial court because of the

specific limiting of issues to be heard and time frame

required by the appellate court. The trial court is required to

follow the appellate court's mandate.

Petitioner is suffering from a severe hearing and speech

discrimination loss far exceeding the Social Security

Administration 40% level as 36 and 32%. As a consequence

her work is more labored, much slower and takes far more

time. It is also slower in communicating during research, by

telephone, and other relationships that the non-hearing-

handicapped take for granted. Hearing loss is a recognized

barrier to communication and understanding. Most courts

today still deny equal access and due process to hearing-

impaired people. The court schedule demands on a non-

attorney pro se with such a deficit means that petitioner needs

time, meaningful time, for there are no short cuts for her.

She has no one she can assign the work to. Her diligence has

been no help and she has been cut off from the helpful and

necessary conversations and discussions of legal matters that

a pro se, non-attorney party must have in such a complex

case. Petitioner is disabled, handicapped, and entitled to the

23

protections of the Rehabilitation Act of 1973 such as § 504,

and 29 USC § 794, which are being denied to her by the

appellate court.

The compounding of these disabilities results in a

devastating multiplicative effect on the individual. For

example, a hearing impaired person is not only hindered by

his or her hearing loss but also by the complications which

result. The loss of communication will further impair the

person's communication skills, and so on in a destructive

cycle.

The most significant principle of the Rehabilitation Act

for the handicapped is that no recipient or Federal agency

may deny, on the basis of handicap, a qualified person an

opportunity to participate in or benefit from its programs or

services. I expect that the courts and justice qualify as

opportunity, participation and benefit.

A handicapped person must be given an opportunity to

participate in or benefit from a program in a manner that is

equal to and as effective as the opportunity provided to non-

handicapped people.

“No other qualified handicapped individual in the United

States, as defined in section 7(6), shall, solely by reason

on his handicap, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal

assistance.”

Section 504 of the Rehabilitation Act of 1973, quoted

above, and the comprehensive regulations implementing it,

exemplify the fact that the law no longer relegates

handicapped persons to second class citizenship. The 1970's

have ushered in a new era of acceptance for the disabled.

Each year finds courts more willing to establish and define

the constitutional rights necessary to secure a handicapped

person equal stature in society. Congress has responded by

codifying these rights and making equal treatment among the

24

disabled and non-handicapped a legal mandate. The

challenge now is implementing these laws.

The law has taken great strides in raising the handicapped

to the same plain occupied by the nonhandicapped. Federal

court decisions and congressional mandates have combined

to weave a cloak of protection. Doctrines have developed

which are sensitive to the special needs of the handicapped

community. Rehabilitation Act of 1973 § 504, 29 USC § 794

(1973); 45 CFR § 84.1 (1977); Rehabilitation Act of 1973,

Pub L No. 93-112, 87 Stat 355 (1973).

MANDATORY MINIMUM HEALTH

AND SAFETY PROVISION

The June 29, 1990 order is unconstitutional because the

Appellate Court was in error in letting stand the trial court's

March 11, 1987 order permitting a mandatory minimum

health and safety provision to be optional. The portion of the

March 11, 1987 order not reversed and remanded with

directions is contrary to law and to public policy. It is

therefore a denial of due process of law.

The appellate court is permitting defendant 175 East

Delaware Place Homeowners Association to:

“provide for hardware specified in finding C above and it

will arrange and pay for the installation of such hardware

on the windows of those owners willing to allow such

installation.” (Emphasis added.)

Petitioner has been deprived of the protections of the

minimum mandatory health and safety provisions of the City

of Chicago Municipal Code. By this Court's permitting the

individual unit owners the option of installing window

hardware, the other occupants of the Hancock Center and

Petitioner are exposed to danger. The problem of pollution

would not be corrected. Additionally, the City of Chicago

did not litigate the issue of the Association and Sudler &

Company, its agent, turning off or reducing substantially the

mechanical ventilation, which, without the required easily

25

<P alle Th ell, ERAGE LD BILD ti Bie Sac FEI, NE A ae

eS ae

operable windows, is the main way to protect against the

pollutants generated in other parts of the building.

Unless Petitioner is allowed to attack the poliution in her

apartment, generated from within and from other parts of the

building, she has not been permitted to obtain the relief she

sought in her complaint: her right to a healthful environment.

Petitioner's basic Federal and Illinois Constitutional

Rights have been and are being denied.

Petitioner has alleged that the terms of the Illinois

Appellate Court's order are discriminatory in its application,

and are arbitrary and capricious, violating in practice the

Equal Protection Clause of the Fourteenth Amendment.

The Appellate Court's June 29, 1990 order has stripped

and deprived Petitioner of her basic rights and due process as

a litigant. She now has fewer rights than a regular litigant,

which was not the intent of the intervention statute. There is

no reason or right to now apply any restrictions as is clearly

set out in Section 2-408(f) of the intervention statute. She

should be allowed to fully develop her case, not be limited to

only the March 11, 1987 order about “hardware.” That was

not the single subject of her verified complaint.

Petitioner is forced back into the courtroom without the

right to have defendants’ answer filed in the case below;

without time for discovery; to be ordered to go to trial with

an unreal, unfair, time limitation; and, by defining another

issue to be tried, will not give Petitioner the relief for which

she intervened eight years ago.

This court's jurisdiction is invoked because of the

discriminatory effect of the appellate court's remand,

depriving Petitioner of due process, equal protection, and

access to the courts.

The primary focus should be the results of the remand

back to the trial court under the prejudicial circumstances and

directions specified by the appellate court.

26

Petitioner is being placed on a “merry-go-round.” The

terms of the remand, ostensibly in Petitioner's “favor”

encroach upon the ability of a trial judge to control his own

docket. The Supreme Court of the United States was

concerned about a “merry-go-round” in 39 Ill 2d 278, 284

quoting Marino v Ragen (1947), 332 US 561, 570, 92 Led

170, 176, 68 S Ct 240. This dealt with pursuing legitimate

constitutional challenges to criminal convictions. Although

Petitioner's case is civil, not criminal, (although housing

court in Chicago is a quasi-criminal court) the concept is still

applicable. Upon remand Petitioner is limited by the terms

of the remand to litigate not her own complaint, filed in as

required by law in accordance with the Illinois intervention

statute, but to litigate just one small portion of her complaint.

If the trial court denies the relief sought, Petitioner must

again begin the entire appeal process all over, with the courts

keeping Petitioner busy for another two or three years while

her meager resources dwindle and the relief is ignored. This

is not due process, it is a “merry-go-round.”

“It is one of the oldest and perhaps the wisest maxims of

equity that the law will not require a person to do a useless

act.” Moehling v Pierce, 3 Il.2d 418, 121 NE2d 735, Rock

Island YWCA v Bestor (1977), 48 Ill.App3d 761,765, 363

NE2d 413 at 416.

The Illinois Appellate Court has denied Petitioner the

right to try the issue of environmental pollution and restricted

the relief to that of the trial court's March 11,1987 order,

which limited itself to only one aspect of the cause of the

pollution; not the issue of uninhabitability.

It is a matter of record by court order entered on June 8,

1984 (1R C262) that:

“there has been no trial of the matters alleged in the

Complaint as to the ventilation system, and that there have

been no finding of fact or conclusion of law or

adjudication made with respect to any matter alleged or

arising out of the Complaint as to the ventilation system.”

27

If this is sustained, Petitioner would again have no

meaningful intervention and the public should be warned that

intervention is a costly and useless trap as pursued in the

Illinois courts.

But more fundamentally, review is warranted to determine

whether the Court below, by erecting artificial standards and

barriers to relief, has effectively closed off the rights

guaranteed by the Constitution. A full examination of

Petitioner's charges would not be painless; but in the long run

it would prove more health, and more consistent with our

constitutional commitment to equal justice under law, than

avoiding the problem by refusing to see it.

MEANINGFUL OPPORTUNITY TO BE HEARD

Due process requires that Petitioner receive the latitude

given to litigants in compliance with the Supreme Court

Rules to develop her case in a reasonable time. The time

restrictions placed by the court are prohibitive and do not

permit meaningful opportunity to be heard. Due process

requires at a minimum that “persons forced to settle their

claims of right and duty through the judicial process must be

given a meaningful opportunity to be heard.” Boddie v

Connecticut, (1971) 401 US 371 at 377, 91 S Ct 790. This

extends to municipal ordinance violations. See, Williams v

Oklahoma City, 395 US 458. Municipal violations are part

of appeal 87-1211.

EQUAL PROTECTION

Section 1 of the Fourteenth Amendment to the United

States Constitution forbids any state from denying the equal

protection of the laws to any person within its jurisdiction.

Although the “due process clause of the Federal Constitution

does not require a state to establish avenues of appellate

review, the “equal protection” clause of the Federal

28

Constitution requires that once a state establishes avenues of

appellate review,

“these avenues must be kept free of wunreasoned

distinctions that can only impede open and equal access to

the courts.” Rinaldi v Yaeger, (1966) 384 US 305, and

case cited therein.

The Rinaldi case was quoted from and followed with

approval in Williams v Oklahoma City, (1969) 395 US 458;

North Carolina v Pearce, (1969) 395 US 711; Mayer v City

of Chicago, (1971) 404 US 189; Blockledge v Perry (1974)

417 US 21.

The prohibition against depriving a person of life, liberty

or property without due process of law is so fundamental that

it is deemed imperative. The due process clause embodies

guarantees so all-encompassing that a brief statement of its

effect is impossible and unnecessary. Petitioner continues to

be deprived of the use of her property.

SUMMATION

The Appellate Court's “directions” make its order

unworkable, with an impossibility of proceeding in the trial

court under the terms established by that order, including a

restriction of hearing only one portion of Petitioner's

complaint. It is in violation of Petitioner's constitutional

rights, due process and equal protection of the law.

Petitioner's case has been destroyed. There is no way she can

have an effective intervention or hearing under the terms laid

out by the appellate court. These problems were identified in

the petition for rehearing which the appellate court denied

her leave to file instanter in spite of it being presented only

three and one-half hours after the due date. That was during

her husband's serious, documented physical collapse and

concurrent dangerous gastrointestinal perforations in June

and July 1990.

29

ee ey

See

PAPER EO Nt Nin Peat =

The order should be modified so that Petitioner is not

deprived of and penalized by artificial time restraints not

placed on attorneys or the trial court, and where the full relief

she sought in her unanswered complaint can be realized.

Petitioner is entitled to a full and complete substantive and

procedural due process proceeding: on her full complaint and

her apartment, including the rights of amendment of her

complaint.

The court should either grant Petitioner relief or remand

the case for further consideration under appropriate legal

standards. Only then will there be due process, equal

protection under the law, and equal access to the courts.

CONCLUSION

Petitioner asks this Court issue its petition for a writ of

certiorari to the Illinois Appellatee Court.

Supervisory Jurisdiction

In the alternative, Petitioner asks this court to exercise its

supervisory jurisdiction to supervise the appellate court's

conflicts and contradictions as committed in its opinion and

remand order.

Summary “reversal”

In the alternative, Petitioner asks this court for a summary

“reversal.” The decision below is clearly wrong, not in

reversing but in the terms of the reversal, by limiting

Petitioner to only one part of her complaint, with serious time

restrictions.

Respectfully submitted,

Joan P Whitmer, Petitioner

American Citizen on her own behalf

221 Pardridge Place, DeKalb IL 60115 815/758-7272

30

APPENDIX B—1

FIFTH DIVISION

29 JUNE 29, 1990

NO. 1-87-1211

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

CITY OF CHICAGO, A Municipal APPEAL FROM

Corporation THE CIRCUIT

Plaintiff COURT OF

COOK COUNTY

and

JOAN P WHITMER,

Plaintiff-Intervenor-Appellant No. 83 M1-404279

vs

THE HON

JOHN HANCOCK MUTUAL LIFE SIMON S

INSURANCE CO., SUDLER & CO., PORTER

and HOMEOWNERS ASSOCIATION, JUDGE

Defendants-Appellees PRESIDING

‘ ORDER

I

This case is now before us a second time. In our first

opinion, we reversed the circuit court's judgment and

remanded the cause, so that plaintiff-intervenor Joan P.

Whitmer could intervene in building code violation litigation

commenced by plaintiff City of Chicago against defendants

John Hancock Mutual Life Insurance Company, Sudler &

Company, and 175 East Delaware Homeowners Association.

nA AR ORIEN Ea tg me ae eI

PARE NI OE NR cee

APPENDIX B—2

Upon remand, the circuit court entered an order on March 11,

1987, in favor of the City and against defendants, from which

Whitmer has appealed. For the following reasons, we have

concluded that the case must be reversed and remanded

again.

I

The facts of the case are set forth in our first opinion, and

we shall only revisit them as necessary for an understanding

of the issues presented by this appeal. The City filed a

complaint against defendants on July 22, 1983, charging that

the John Hancock Center did not meet the ventilation

requirements of the Chicago Municipal Code. The City

sought alternative relief, including fines, an injunction, the

appointment of a receiver, or an order of demolition. On

August 16, 1983, the date of the first hearing held in the case,

Whitmer appeared and presented her petition to intervene,

along with a complaint. Whitmer alleged that she was a

condominium owner in the residential portion of the John

Hancock Center, and that her health, safety, and property

interests would be affected by the outcome of the case. Her

complaint incorporated the municipal code violations

identified by the City, and she sought declaratory and

injunctive relief. |

The City did not actively oppose Whitmer's petition,

although it believed it adequately represented her health and

Safety interests. Defendants opposed the petition, arguing

that Whitmer's property interest would be adequately

represented by the Homeowners Association, and that her

intervention would unduly delay the action. Whitmer

responded that the City could not represent her particular

health and safety interests,- and that it had failed to pursue

discovery. Regarding the Homeowners Association, she

APPENDIX B—3

replied that it could not represent her, as it denied the

existence of violations, whereas she sought to have violations

corrected. The circuit court denied Whitmer's petition, ruling

that the City and the Homeowners Association would

adequately represent her rights.

Whitmer appealed to this court. We found little merit in

defendants’ argument that allowing her intervention would

unduly delay proceedings. Rather, we believed the crucial

question was whether Whitmer's interests were adequately

represented by the original parties. We answered this

question in the negative, concluding that the representation of

her interests by the City and the Homeowners Association

would, or might be, inadequate. Since Whitmer's claim of

inadequate representation was reasonable and well founded,

and since the statutory requirements of timeliness and

insufficiency of interest were met, we held that the circuit

court erred in denying her petition to intervene. Accordingly,

we reversed the circuit court's judgment and remanded the

cause for further proceedings. See City of Chicago v. John

Hancock Mutual Life Insurance Co. (1984), 127 Ill.App.3d

140, 468 N.E.2d 428.

The mandate of this court issued on March 22, 1985.

Whitmer's attorneys, the law firm of Jenner & Block, moved

for leave to withdraw on October 10, 1985. Notwithstanding

her objections, the circuit court permitted Jenner & Block to

withdraw. On November 13, 1985, Sidney Z. Karasik

entered an appearance as counsel for Whitmer. On January

20, 1987, Judge Simon Porter entered an order, reflecting the

fact that Karasik would be withdrawn. Whitmer claims she

was not given proper notice of his withdrawal. In any event,

the circuit court gave her only one week -- until January 27,

1987 -- to retain new counsel.

APPENDIX B—4

BN OREO ce cite i he ae

oatacien Rema ar

Simin agen ct

On March 11, 1987, a trial was held to resolve certain

questions left undetermined by earlier rulings. One such

ruling was issued on November 17, 1984. This order recited

that the City's municipal code required carbon monoxide

levels of less than 100 parts per million; therefore, Judge

Porter ordered John Hancock to add four monitoring points in

the John Hancock Center's garage, and to lower the level of

its carbon monoxide alarms to 35 ppm. Judge Porter entered

another order on May 29, 1984, ruling in favor of the

Homeowners Association, to the extent that the windows in

the John Hancock Center's residential portion were openable

and satisfied the five percent natural ventilation requirement

of the municipal code; Judge Porter also ruled in favor of the

City, in that he found the windows lacked hardware which

would permit them to be opened. The March 11, 1987, trial

was held to determine what sort of hardware would allow the

windows to meet the municipal code's requirements.

On March 11, 1987, immediately before trial, Whitmer

moved for 2 continuance, based upon the fact that she was

hearing impaired and, consequently, had difficulty retaining

new counsel. The circuit court denied her request; thus, she

was forced to proceed pro se. Whitmer went on to raise other

objections. On the basis of Illinois Supreme Court Rule 220

(107 I11.2d R. 220), Whitmer succeeded in getting the circuit

court to disallow one of the defendants’ witnesses, because

discovery regarding that witness was not completed within

60 days before trial. Whitmer further objected that the circuit

court had not truly recognized her intervention on demand,

contrary to the mandate of this court. The circuit -ourt,

however, permitted defendants to proceed. Whitmer entered

a standing objection to any additional proceedings, and to

any evidence that defendants might introduce.

APPENDIX B—S5

Defendants called Richard E. Lenke, an architect for the

firm that designed the John Hancock Center. Lenke testified,

on cross-examination by the City, that the proposed window

hardware satisfied the municipal code's_ ventilation

requirements. Whitmer was given the opportunity to

question Lenke, which she declined. Defendants then

introduced the videotape of Charles Beason's evidence

deposition, and it was played to the court. Beason, an

engineer employed by the manufacturer of the proposed

window hardware, stated that the hardware would hold the

residential windows open. The City stated that it would be

content if the proposed hardware met the requirements of its

municipal code.

After the trial of March 11, 1987, an order was drafted,

and approved by the circuit court, which stated that the

proposed hardware would cause the windows of the John

Hancock Center to satisfy the municipal code's natural

ventilation requirements. The order also recited that the

Homeowners Association would provide the hardware and

arrange and pay for its installation on the windows of those

individual unit owners willing to allow it. Thus, the circuit

court entered judgment in the City's favor. The circuit court

ruled that the order was final and appealable, including a

finding pursuant to Supreme Court Rule 304(a) (107 I1.2d R.

304 (a)), and retained jurisdiction to supervise compliance

with the order's terms. Whitmer now appeals from the March

11, 1987, order, among others.

Ill

Before turning to the merits of the case, we must review

its procedural history in this court. Two oral arguments have

been held. The first argument was held on September 5,

1989; it concerned defendants' motion to dismiss appeal

APPENDIX B—6

a ae ea he ll

number 89-0431, one of several appeals filed by Whitmer.

She decided to appeal from virtually every ruling made

below, in order to protect her rights. Following this

argument, we dismissed appeal number 89-0431 and

narrowed the issue in appeal number 87-1211 solely to the

propriety of the March 11, 1987, order, in which the circuit

court approved the proposed window hardware.

The second oral argument in this appeal was held on

February 27, 1990. Whitmer argued pro se, as she did on

September 5, 1989. And, as before, we permitted her to use

special equipment, which allows persons with hearing

disabilities to participate more fully in appellate court

proceedings. Presiding Justice Coccia read the following

statement into the record:

“Mrs. Whitmer, before you begin, I would like to take

a moment to explain to you why this court denied your

most recent request for an extension of time on

February 15 [1990]. This court is aware of your special

circumstances: the fact that you are proceeding pro se,

and that you claim to be hearing impaired. This court

has sought to accommodate you. Your appeal has been

pending for nearly three years. During that period, this

court has granted you approximately 20 extensions of

time. Your oral argument today is the second in appeal

number 87-1211, and your third overall. As in the past,

we have allowed you to proceed with special

equipment.

But we must balance your needs as an individual litigant

with the needs of the entire system, including the right of

your fellow citizens to our attention. With these concerns

in mind we entered an order on December 11 of last year

[1989], more than two months ago, setting a briefing

schedule and designating today as the date for oral

APPENDIX B—7

argument. The time has come for us to rule on the merits.

Thus, this court came to the conclusion that justice would

not be served by allowing yet another extension. We trust

this court has struck a proper balance between your right

to be heard, and the right of other litigants to our attention.

Please tell us, precisely and succinctly, the exact relief you

want from this court.”

Resolution of this appeal has been complicated by other

factors. For example, Whitmer filed her brief late, and it

contains an argumentative statement of facts, contrary to

the rules of our supreme court. (See 113 Ill.2d R. 341

(e)(6).) More egregiously, counsel for defendants --

Burke, Wilson & Mclvaine (sic) and Phelan, Pope & John,

Ltd. -- filed a joint brief that lacks citations to the

voluminous record. (See 113 mag 341(e)(6), (7), 341

(f).) Whitmer's noncompliance with the rules is arguably

excusable, since she is proceeding pro se. But we cannot

excuse the noncompliance of two sizable and experienced

law firms.

With these irregularities in mind, we turn now to the

merits of this appeal. Whitmer argues that she has been

deprived of her constitutional rights; that the circuit court on

remand prevented her intervention as of right; and that the

order she appeals from is not final -- a curious point for an

appellant to urge on review. Defendants reply that the March

11, 1987, order is final and appealable; that Judge Porter's

findings were not against the manifest weight of the

evidence; and that Whitmer was given full intervention

rights.

We conclude that the March 11, 1987, order was final and

appealable, because it fully and finally disposed of the

parties’ rights so that no material controverted issue remained

to be determined. (See AFSCME v. State of Illinois (1989),

sin

2

APPENDIX B—8

192 Ill.App.3d 108, 111, 548 N.E.2d 592, 594.) The real

issue before us concerns Whitmer's theory that the circuit

court prevented her intervention in the litigation on remand.

In support of her theory she notes that, among other things,

defendants never answered her compliant and that she was

unable to get her motion to default them heard. Section 2-

408(f) of the Illinois Code of Civil Procedure provides:

“An intervenor shall have all the rights of an original

party, except that the court may in its order allowing

intervention, whether discretionary or a matter of right,

provide that the applicant shall be bound by orders or

judgments, theretofore entered or by evidence theretofore

received, that the applicant shall not raise issues which

might more properly have been raised at an earlier stage

of the proceeding, that the applicant shall not raise new

issues or add new parties, or that in other respects the

applicant shall not interfere with the control of the

litigation, as justice and the avoidance of undue delay may

require.” Ill. Rev. Stat. 1983, ch. 110, par. 2-408(f).

Once this court recognized Whitmer's right to intervene, it

was incumbent upon the circuit court to follow our mandate

and allow her to participate fully in the case on remand.

_ Whitmer brought her hearing disability to the circuit court's

attention before the March 11, 1987, trial, as stated above.

(In this court, Whitmer has filed an affidavit executed by a

physician, documenting her handicap.) But the circuit court

permitted Whitmer only one week to retain new counsel.

Given Whitmer's disability and the complexity of the case,

we must conclude that the circuit court abused its discretion

by allowing her only one week to retain new counsel. We do

not wish to be understood as holding that Whitmer had a

constitutional right to counsel that the circuit court somehow

violated. Instead, we think that because of her disability she

APPENDIX B—9

needed counsel in order to meaningfully exercise her

statutory right to intervention at the trial of March 11, 1987.

Because Whitmer was effectively denied the right by the

circuit court, we must reverse its order of March 11, 1987,

and remand the cause for a hearing on the merits of her

complaint, which have not been addressed previously. As we

express no opinion regarding the merits of the March 11,

1987, order, and as her complaint incorporates the municipal

code violations identified by the City in its complaint, the

circuit court is free to conclude that she is entitled only to the

relief awarded on March 11, 1987, or such other relief that

the court deems just. The circuit court may consider

whatever evidence it deems relevant, whether introduced by

Whitmer or defendants, keeping in mind section 2-408(f)'s

mandate that intervention be consistent with justice yet not

cause undue delay.

Upon remand, the circuit court shall also permit Whitmer

35 day to retain new counsel. (This actually gives her at least

56 days, as our mandate will issue no earlier than 21 days

after entry of judgment (see 107 Ill.2d R. 368(a).) The

evidentiary hearing shall be held 35 days thereafter. If

Whitmer elects not to retain counsel, or she fails to retain

counsel within the time permitted, the circuit court shall

allow her to proceed at the hearing with whatever assistance

or equipment permits her to participate in spite of her

disability, as long as such arrangements are consistent with

orderly trial procedure. Whitmer has not claimed indigence,

and she must proceed at her own expense on remand.

APPENDIX B—10

IV

For the reasons stated, then, the order of March 11, 1987,

is reversed and the cause is remanded for further proceedings

consistent with this opinion.

REVERSED AND REMANDED, WITH DIRECTIONS.

COCCIA, P.J., with LORENZ and MURRAY, JJ.,

concurring.