Petition — DeVRY Inc. v. McClandon

Office-Supreme Court, US.

a i | in UD

|

| AUG 26 1957

Lal

IN THE

Supreme Court of the United States

OcTOBER TERM. 1983

RVEF INe.

Petitioner.

JOE ANN McCLANDON.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

MARIAN CONROY HANEY

115 South LaSalle Street

Chicago. Illinois 60603

Counsel for Petitioner

Of Counsel.

VEDDER. PRicE. KAUFMAN & KAMMHOLZ

115 South LaSalle Street

Chicago. Illinois 60603

(312) 781-2200

QUESTION PRESENTED FOR REVIEW

Whether the Due Process Clause of the Fourteenth

Amendment to the United States Constitution guarantees to a

claimant a right to a hearing where an opposing party would

thereby be deprived of its constitutional due process rights and

where the doctrine of res judicata would thereby be ignored.

ll

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ooecccccsssscssssssssse i

ps |. REE eT i

TABLE OF AUTHORITIES ....cssccccssssssssssssssssssssssssesses ences iv

SS IO TOMO 2

SE CAE ENTE 2

CONSTITUTIONAL PROVISION INVOLVED ooeccccsssseee 2

STATEMENT OF THE CASE ....sssssecsssssssssssessssssssssssssssensen 2

REASONS FOR GRANTING THE WRIT cecsssssssssssssosossse ?

The Appellate Court Decision Involves Important

Questions of Federal Constitutional !.aw and Con-

flicts with Applicable Decisions of This Court.......... 7

oo SERED EEE, SER aeons aah 2 1]

APPENDIX A

Opinion of the Appellate Court of Illinois, First

Judicial District, dated January 10, 1983 .......ccceees la

APPENDIX B

Supplemental Opinion of the Appellate Court of

Illinois, First Judicial District, dated February 28,

UNIT MISrsisliohiiiisisk celaciinsinchdcgeecus tes esconevemmsbonbaceseb scsnalicasueliaaiaa 9a

APPENDIX C

Oral Opinion of the Circuit Court of Cook County,

rr CUD NI BOGE oi cccccsnsccersessscccscenccunseensnsnies lla

APPENDIX D

Order of the Circuit Court of Cook County, Illinois,

EAE a a a aa APD Oe Sa

APPENDIX E

Order of the Circuit Court of Cook County, Illinois,

I a ee 17a

i

APPENDIX F

Petition for Appeal as a Matter of Right or,

Alternatively, Petition for Leave To Appeal. filed in

the Supreme Court of I1iMis ..........ccccesseseeseeeeeeneees 18a

Appendix G

Denia! of Bell and Howell's Petition for Leave To

Appeal by the Illinois Supreme Cour, dated May

Appendix H

Denial of McClandon’s Petition for Leave To

Appeal by the Illinois Supreme Cour, dated May

inlet Rie REST a SE ER eee NN Re RE 33a

Appendix I

Order of the Circuit Court of Cook County, Illinois.

dated July 2, 1980, in Bell and Howell Schools v.

TS EF ASSIS a AeA NOs a era Oe 34a

Appendix J

Order of the State of Illinois Human Rights Com-

mission, dated September 10, 1980, in Jn the

Matter of: Joe Ann McClandon and Bell and Howell

Appendix K

Excerpt from Bnef of Defendant-Appellee. filed in

the Appellate Court of Illinois, First Judicial Dis-

I dillichi sdicleectancesbdnsnsbigiedncmingihganiatbbharebesuebetadiosseaniboena 36a

Appendix L

Excerpt from Brief for Plaintiff-Appellant, filed in

the Appellate Court of Illinois, First Judicial Dis-

Si ctsiaditianksacntadinenicabibadvnabeniniinabdsbesdegemmmaimsion 43a

iv

TABLE OF AUTHORITIES

Cases

Arnold & Murdock Co. v. Industrial Commission,

314 HD. 251, 145 N.E. 342 ( 1924) .......ccccsccsscoesees

Baldwin v. Iowa State Traveling Men’s Assn, 283

Bi he ee PIED cccouccetectssinteneiereemdadinaiasbanbeecorass

Bell and Howell Schools v. State of Illinois FEPC,

Earle Tockman and Joe Ann McClandon, No. 79

CH 1085 (Circuit Ct. of Cook County, 1980)......

Cox Broadcasting Corp. v. Cohn, 420 U. S. 469

Federated Department Stores, Inc. v. Moitie, 452

She RU BONED aceesicscectisuhisansenleaeciecnininntcalabonabelicaeh

Hart Steel Co. v. Railroad Supply Co., 244 U. S.

ET CUE Hiscctsinitcsansiainthinecsneaincaciesbiaindacetaiscenens

Linkletter v. Walker, 381 U.S. 618 (1965) wo...

Logan v. Zimmerman Brush Company, 455 UV. S.

RE 1 OIE Pidensesunsasnansioniecemesnenolethehascenalasbesneceeiesste

McCullough v. Virginia, 172 U.S. 102 (1898)........

Smolen v. Industrial Commission, 324 Ill. 32, 154

Fann, WOE A NOTIN D ccciccessinincsdsassnpnacaccbinstamectsanposiesions

The Board of Regents of State Colleges v. Roth,

A Sie as SU ETRE D vaniptaonin ca castinciasadarsccaniesiabestibons

Constitutional Provisions and Statutes

cis Mn I, I cumuauaes

Ray CRUE FA tN eschcecinesccetensccontonesonnccbanaenealdcssonuoin

BR Ries IE coiceancdabiiecesticied eiebeidabmabian dads tid

RES EL PARE eRe aCe eee ER aN Ma

es II Ts rd acces er

Ill. Rev. Stat. ch. 48, §858.01( a) ......ccccccccccsscsssseeess

Til. Rev. Stat. ch. 48, $8S8.0 18 ......cccccccccosscecscccssoecsees

PAGE

6, 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

BELL AND HOWELL SCHOOLS,

Petitioner,

v.

JOE ANN McCLANDON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

Bell and Howell Schools (now DEVRY INC.) (“Bell and

Howell”)' prays that a wnt of certiorari issue to review the

judgments of the Appellate Court of Illinois, First Judicial

District, entered on January 10, 1983, and February 28, 1983,

insofar as they reversed the Circuit Court of Cook County’s

decision on Counts I and II of Joe Ann McClandon's

(“McClandon’s”) Complaint.

‘DeVRY INC. (formerly Bell and Howell Education Group

which was formerly Bell and Howell Schools) is a wholly owned

subsidiary of Bell & Howell Co. DeVRY INC. has no subsidiaries or

affiliates.

4

OPINIONS BELOW

The opinions of the Appellate Court of Illinois (App. A, B.

pp. la-l0a) are reported at 112 Ill.App.3d 367 (Ist Dist.

1983). The orders and opinion of the Circuit Court of Cook

County (App. C, D, E, pp. lla-17a) are not reported.

JURISDICTION

The judgment of the Appellate Court of Illinois was

entered on January 10, 1983 (App. A. pp. la-8a). Bell and

Howell filed a Petition for Rehearing which was denied on

February 28, 1983 (App. B, pp. 9a-10a). A supplemental

opinion was delivered on February 28, 1983, upon the denial of

the Petition for Rehearing (App. B, pp. 9a-10a). The Illinois

Supreme Court denied Bell and Howell's Petition for Appeal as

a Matter of Right or, Alternatively, Petition for Leave To

Appeal on May 31, 1983 (App. G, p. 32a). The junsdiction of

this Court is invoked pursuant to 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISION INVOLVED

Constitution of the United States, Amendment XIV, Sec-

tion |;

Section |. All persons born or naturalized in the

United States, and subject to the junsdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shal]

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 equa! protec-

tion of the laws.

STATEMENT OF THE CASE

In October, 1975, McClandon filed two charges with the

Illinois Fair Employment Practices Commission (“Commis-

sion”) against Bell and Howell, which were not settled or

3

adjusted by conference or conciliation (App. F, p. 20a). The

Commission did not issue a Complaint within 180 days after the

filing of the charges (App. F, p. 20a).

On February 21, 1979, Bell and Howell filed a Complaint

in the Circuit Court of Cook County against the Commission,

an Administrative Law Judge, and McClandon, seeking a

declaratory judgment and injunction enjoining McClandon and

the others from proceeding with the processing of McClandon’s

charges before the Commission. Bell and Howell Schools v.

State of Illinois FEPC, Earle Tockman and Joe Ann McClan-

don, No. 79 CH 1085 (App. F, p. 21a). Bell and Howell

claimed that the Commission did not have jurisdiction of

McClandon’s charges because a Complaint had not been filed

within 180 days of the filing of McClandon’s charges as

statutorily mandated. Ill. Rev. Stat. ch. 48, §858.01(a)( App.

F, p. 21a). On July 2, 1980, the Circuit Court ruled that the

Commission did not have jurisdiction to proceed on McClan-

don’s charges and dismissed the case with prejudice (App. I, p.

34a). The Commission subsequently dismissed McClandon’s

charges (App. J, p. 35a). McClandon never appealed from the

July 2, 1980 decision or the Commission’s dismissal of her

charges (App. F, p. 21a).

On November 25, 1980, McClandon filed a four-count

Complaint alleging employment discnmination by Bell and

Howell. Counts I and II were brought pursuant to Ill. Rev.

Stat. ch. 48, §858.0la (“Section 858.01a”);@ Count III was

brought under 42 U.S.C. §1981; and Count IV was brought

under Article 1, Section 17, of the Illinois Constitution (App. A,

p. la).

2 Section 858.0la permitted a person who filed a charge with the

Commission prior to March 30, 1978, which charge was not settled,

adjusted or, within 180 days of its filing, the subject of a Commission

Complaint or an order that no Complaint be issued, to seek relief in

Circuit Court.

4

On May 4, 1981, pursuant to Bell and Howell’s Motion To

Dismiss, which was based, inter alia, on the argument that

Section 858.0la was unconstitutional under both the Federal

and State Constitutions, the Circuit Court dismissed McClan-

don’s Complaint with prejudice for the following reasons:

Counts I and II were dismissed because Section 858.0la, the

jurisdictional predicate of those Counts, is unconstitutional as

violative of Bell and Howell’s due process and equal protection

rights and creates liabilities for past events; Count III was

dismissed because it is untimely and does not state a cause of

action; and Count IV was dismissed because it is time barred

(App. D, pp. 1Sa-16a).

On July 23, 1981, the Circuit Court denied Plaintiff's

Mouon for Rehearing, Reconsideration or to Vacate Judgment

or, in the Alternative, Motion To Modify Order of May 4, 1981

(App. E, p. 17a).

On February 24, 1982, in Logan v. Zimmerman Brush

Company, 455 U.S. 422 (1982), this Court, in reversing the

Illinois Supreme Court’s decision that had rejected the claim-

ant’s due process argument, determined that a claimant’s access

to the Commission’s adjudicatory procedures was a property

interest protected by the Due Process Clause of the Fourteenth

Amendment of the United States Constitution.

Upon appeal of the Circuit Court’s May 4, 1981, and July

23, 1981 decisions, in her opening brief filed March 26, 1982,

McClandon changed the focus of her contentions and argued in

the Illinois Appellate Court that pursuant to Logan, under the

Due Process Clause of the Fourteenth Amendment, she is

entitled to a hearing on the merits of her claims. For example,

McClandon stated:

Logan requires that each complainant, whose timely

filed charge was dismissed because of the failure of the

Commission to convene a fact finding conference within

120 days of the proper filing of the charge, be accorded a

5

hearing. The same requirement applies to each com-

plainant whose timely filed charge was dismissed because

of the failure of the Commission to issue a complaint

within the statutorily prescribed time period. These claim-

ants too must be accorded a hearing. To hold otherwise

would be to deny these persons the due process of law

guaranteed under the Fourteenth Amendment of the

United States Constitution.

(App. L, p. 44a).

Bell and Howell countered that reliance on Logan and its

rationale was misplaced because in this case Bell and Howell

had a due process vested right in the final unappealed-from

July 2, 1980 judgment which determined that the Commission

did not have jurisdiction to process McClandon’s charges ( App.

K, p. 40a). Further, Bell and Howell argued that the July 2,

1980 judgment was res judicata of the issue of whether the

Commission has jurisdiction of McClandon’s charges and

barred a contrary determination (App. K, p. 40a). Bell and

Howell also argued that Logan should not be applied retro-

actively (App. K, pp. 4la-42a).

On January 10, 1983, the Appellate Court reversed the

Circuit Court’s May 4, 1981 dismissal of Counts I and II of

McClandon’s Complaint, and affirmed the Circuit Court’s dis-

missal of Counts III and IV of McClandon’s Complaint and

July 23, 1981 denial of McClandon’s Motion (App. A, pp. la-

8a).

In reversing the Circuit Court’s dismissal of Counts | and II

of McClandon’s Complaint, the Appellate Court agreed with

the Circuit Court that Section 858.01a, the jurisdictional predi-

cate of those Counts which would have entitled McClandon to a

Court hearing, is unconstitutional (App. A, pp. la, 3a). The

Appellate Court, however, determined that it must be guided

by Logan and decided that under the Fourteenth Amendment

McClandon is entitled to a Commission hearing (App. A, pp.

3a-5a). Accordingly, the Appellate Court remanded this case

to the Circuit Court with directions to add the Department of

Human Rights and Human Rights Commission (the successors

to the Commission) as necessary parties and to order the

Department to accept and process McClandon’s charges ( App.

A, p. Sa).

On February 28, 1983, the Appellate Court denied Bell

and Howell’s Petition for Rehearing of the portion of the

Appellate Court’s January 10, 1983 ruling which reversed the

decision of the Circuit Court dismissing Counts I and II of

McClandon’s Complaint (App. B, pp. 9a-10a).?

On March 30, 1983, Bell and Howell filed with the Illinois

Supreme Court a Petition for Appeal as a Matter of Right or,

Alternatively, Petition for Leave To Appeal (App. F, pp. | 8a-

3la). In it, Bell and Howell argued, inter alia, that the

Appellate Court decision operates to deprive Bell and Howell

3 The decision of the Appellate Court is final despite the ordering

of further proceedings. There is finality where, as here, “the federal

issue [whether McClandon is entitled to a Commission hearing under

the Fourteenth Amendment where to give her one would deprive Bell

and Howell of its due process vested rights and would violate the

doctrine of res judicata) has been finally decided in the state courts

with further proceedings pending in which the party seeking review.

here might prevail on the merits on non-federal grounds, thus

rendering unnecessary review of the federal issue by this Court, and

where reversal of the state court on the federal issue would be

preciusive of any further litigation on the relevant cause of action

rather than merely controlling the nature and character of, or

determining the admissibility of evidence in, the state proceedings stll

to come. In these circumstances, if a refusal immediately to review the

state court decision might seriously erode federal policy, the Court has

entertained and decided the federal issue, which itself has been finally

determined by the state courts for purposes of the state litigation.”

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482-83 (1975).

Clearly, a refusal to review the federal issue now might seriously

erode federal policy, i.e, the guarantee to Bell and Howell of its

constitutional nghts and the policy behind res judicata, “ ‘that there

be an end of litigation; that those who have contested an issue shall be

bound by the result of the contest, and that matters once tned shall be

considered forever settled as between the parties.’ Federated Depart-

ment Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981), citing Baldwin

v. lowa State Traveling Men’s Assn, 283 U.S. 522, 525 (1931).

=

/

of its due process mghts under the Fourteenth Amendment of

the United States Constitution and under the Illinois Con-

stitution because it depnved Bell and Howell of its vested right

in the July 2, 1980 judgment that the Commission does not

have jurisdiction of McClandon’s charges and in the Commis-

sion’s dismissal of McClandon’s charges ( App. F, pp. 23a-27a).

Bell and Howell also argued that the Appellate Court’s decision

was contrary to the doctrine of res judicata in that it ignored the

July 2, 1980 prior contrary ruling (App. F, pp. 27a-30a). Bell

and Howell further argued that Logan should not be applied

retroactively (App. F, p. 25a).

On May 31, 1983, the Illinois Supreme Court denied both

Bell and Howell’s petition for leave to appeal (App. G, p. 32a)

and one filed by McClandon (App. H, p. 33a).

REASONS FOR GRANTING THE WRIT

The Appéllate Court Decision Involves Important Questions of

Federal Constitutional Law and Conflicts with Applicable

Decisions of This Court.

The Appellate Court held that McClandon is entitled to a

Commission hearing under the Due Process Clause of the

United States Constitution even though Bell and Howell would

thereby be depnved of its constitutional due process nghts and

the doctrine of res judicata would be ignored.

The Appellate Court decided that McClandon has a right

under the Fourteenth Amendment to have the Commission

process her charges even though Bell and Howell had pre-

viously obtained a final unappealed-from judgment in Circuit

Court that McClandon does not have such a right and even

though the Commission had dismissed McClandon’s charges

for lack of jurisdiction. The Appellate Court’s decision is an

erroneous departure from well-established constitutional prece-

dent, deprives Bell and Howell of its constitutional vested

rights, and is in violation of the strong federal policy underlying

the doctrine of res judicata.

8

It is unequivocally clear and fundamental that Bell and

Howell has a vested right in the July 2, 1980 judgment that the

Commission does not have jurisdiction of McClandon’s charges

and in the Commission’s dismissal of Plaintiff's charges. £.g.,

McCullough v. Virginia, 172 U.S. 102 (1898). Indeed, the

Seventh Circuit Court of Appeals in Evans v. City of Chicago,

689 F. 2d 1286, 1296 (7th Cir. 1982), stated:

Under Illinois law, a judgment becomes a vested nght

of property once it is no longer subject to review or

modification. Arnold & Murdock Co. v. Industrial Commis-

sion, 314 Ill. 251, 255; 145 N.E. 342 (1924). See Smolen

v. Industrial Commissioner, 324 Ill. 32, 34-35, 154 N.E.

441 (1926).

Under the Fourteenth Amendment, no state can deprive

any person of life, liberty or property without due process of

law. The United States Supreme Court stated in The Board of

Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972),

that property interests are derived not from the Constitution but

from independent sources, such as state law:

Property interests ... are created and their dimensions are

defined t_ existing rules or understandings that stem from

an independent source such as state law—rules or under-

standings that secure certain benefits and that support

claims of entitlement to those benefits.

Under this due process analysis also, because Bell and Howell!

has a vested property right in the July 2, 1980 court judgment

and the Commission’s dismissal of McClandon’s charges under

Illinois law, the Fourteenth Amendment also protects Bell and

Howell from the deprivation of that right.

McClandon never appealed from the Circuit Court’s July

2, 1980 ruling that the Commission does not have jurisdiction of

McClandon’s charges or from the Commission’s dismissal of

her charges. The Appellate Court’s decision that this case

should be remanded to the Commission for processing of

McClandon’s charges in spite of McClandon’s failure in this

regard operates to deprive Bell and Howell of its constitutional

rights.

In Logan v. Zimmermi Brush Company, supra, relied on

by the Appellate Court, the issue of whether Logan’s con-

stitutional rights would be violated if he was deprived of a

Commission hearing because of the Commission’s failure to

hold a fact-finding conference within the statutonly mandated

time period was on direct appeal. Here, McClandon never

appealed the July 2, 1980 Circuit Court judgment that the

Commission does not have jurisdiction of her charges or the

dismissal of her charges before the Commission. Accordingly,

Bell and Howell, unlike Zimmerman Brush Company in Logan,

obtained a vested right in the court judgment that the Commis-

sion does not have jurisdiction of McClandon’s charges and in

the Commission’s dismissal of McClandon’s charges.

It is manifestly clear that to apply in this case Logan’s

holding that an individual is entitled to a Commission hearing

deprives Bell and Howell of its constitutional vested nghts in

the July 2, 1980 Circuit Court final judgment and the final

dismissal of McClandon’s charges before the Commission.¢

Where, as here, to allow McClandon a hearing deprives Bell

and Howell of its constitutional rights, there exists a very

substantial federal question for this Court to decide.

“ Moreover, it is well established that retroactive application of

constitutional decisions, such as Logan, should be denied where, for

example, as here, a party would thereby be deprived of its vested due

process rights and where there has been a prior final determination of

the issue involved. E£.g., Linkletter v. Walker, 381 U.S. 618, 627

(1965).

10

Further. the Circuit Court’s July 2, 1980 ruling that the

Commission does not have jurisdiction of McClandon’s charges

in a case involving the same parties as are in this case is clearly

res judicata and precludes a later contrary court ruling. £.g.,

Federated Department Stores, Inc. v. Moitie, supra, 452 USS. at

398. In its decision that the Commission does have jurisdiction

of McClandon’s charges the Appellate Court ignored the res

judicata effect of the contrary unappealed-from July 2, 1980

ruling.

The Appellate Court’s determination is contrary to, and is

a radical departure from, well-established judicial authonty

which has unanimously recognized the doctrine of res judicata

and its fundamental and necessary place in jurisprudence. For

example, a: .his Court stated in Federated Department Stores,

Inc. v. Moitie, supra, 452 U.S. at 401:

This Court has long recognized that “(p]ublic policy

dictates that there be an end of litigation; that those who

have contested an issue shall be bound by the result of the

contest, and that matters once tried shall be considered

forever settled as between the parties.” Baldwin v. Trav-

eling Men’s Assn., 283 US 522, $25, 75 L Ed 1244, 51 S$ Ct

$17 (1931). We have stressed that “[the] doctrine of res

judicata is not a mere matter of practice or procedure

inherited from a more technical time than ours. It is a rule

of fundamental and substantial justice, ‘of public policy

and of private peace,’ which should be cordially regarded

and enforced by the courts. .. .” Hart Steel Co. v. Railroad

Supply Co. 244 Co. 244 US 294, 299, 61 L Ed 1148, 37S

Cr $06 (1917).

Clearly, the Illinois Appellate Court’s decision, in ignoring

Bell and Howell’s due process constitutional mghts and the

principle of res judicata, is in conflict with fundamental prin-

ciples repeatedly espoused by this Court. The issues sought to

be brought before this Court are of substanual importance

necessitating final resolution in this judicial forum.

11

CONCLUSION

For these reasons, it is respectfully submitted that this

petition for a writ of certioran should be granted.

Respectfully submitted,

MARIAN CONROY HANEY

115 South LaSalle Street

Chicago, Illinois 60603

Counsel for Petitioner

Of Counsel:

VEDDER, PRICE, KAUFMAN & KAMMHOLZ

115 South LaSalle Street

Chicago, Illinois 60603

(312) 781-2200

August, 1983

APPENDIX

la

APPENDIX A

81-2100

APPELLATE COURT OF ILLINOIS

FIRST JUDICLAL DISTRICT

FIRST DIVISION

January 10, 1983

Joe Ann McClandon, ) Appeal from the Circuit

Plaintiff-Appellant, Court of Cook County.

vs.

Honorable

Bell and Howell Schools, RICHARD L. CURRY,

Defendant-Appellee. | Judge Presiding.

JUSTICE O'CONNOR delivered the opinion of the court:

Plaintiff, Joe Ann McClandon, filed suit on November 258,

1980, in the circuit court of Cook County charging defendant,

Bell and Howell Schools, with employment discrimination in

violation of the Illinois Human Rights Act (IHRA) (Ill. Rev.

Stat. 1980 Supp., ch. 68, pars. 1-101 er seg.), of Article I, section

17 of the 1970 Illinois Constitution and of section 1981 of the

Civil Rights Act of 1866 (42 U.S.C. §1981).

Counts I and II allege employment discrimination with

respect to plaintiff's salary and job classification and retaliation

for the filing of a discrimination charge. The jurisdiction for

these counts is based on section 8.0la of the Fair Employment

Practices Act (FEPA) (Ill. Rev. Stat. 1979, ch. 48, par.

858.0la; repealed and replaced by section 9-102(B)(1) of the

IHRA, Ill. Rev. Stat. 1980 Supp., ch. 68, par. 9-102(B)(1)).

Count III is based on 42 U.S.C. §1981 and alleges race

discrimination by the defendant in its treatment of plaintiff's

Salary and job classifications. Count IV alleges race and sex

discrimination under Article I, section 17 of the Illinois Con-

stitution.

2a

On May 4, 1981, the trial court dismissed plaintiff's

complaint with prejudice. Upon defendant’s motion, the tnal

court found: the jurisdictional predicate for counts | and II,

section 8.0la of the FEPA, was unconstitutional; count III did

not state a cause of action and was time barred; and count IV

was time barred. On July 23, 1981, the court, on plaintiff's

motion, refused to reconsider its judgment and denied plaintiff

the opportunity to file an amended complaint. Plaintiff's

motion in this respect included a proposed amended complaint.

Plaintiff appeals, contending (1) section 8.0la of the

FEPA is constitutional; (2) her claim brought pursuant to 42

U.S.C. §1981 states a cause of action and is not time barred;

(3) the claim of race and sex discrimination in employment

practices under the Illinois Constitution is not time barred; and

(4) the trial court abused its discretion in refusing to allow

plaintiff leave to amend her complaint.

Plaintiff started working for defendant in October 1974 as

a data entry supervisor. On December |, 1974, she was

assigned additional responsibilities without any additional com-

pensation. In October 1975 plaintiff's position was upgraded

without a salary increase. During the four-month period

beginning in October 1974 and ending April 1975 plaintiff was

not compensated for overtime work. After filing the initial

charge of employment discrimination in October 1975, some of

plainuff’s authority and job responsibilities were removed by

defendant. Plaintiff remained on the job until August 1976.

Conciliation attempts between plaintiff and defendant

apparently failed. The FEPC then issued an administrative

complaint against defendant on November 22, 1977. On

December 4, 1978, the FEPC informed plaintiff of her right to

pursue the claims on her own in the circuit courts. This notice

was in response to the addition of section 8.0la to the FEPA

which provided a remedy for certain individuals whose dis-

crimination charges were not acted upon by the FEPC within

the 180-day time limit. Ill. Rev. Stat. 1979, ch. 48, par.

858.0la.

3a

After an administrative law judge refused to dismiss the

FEPC complaint, defendant instituted an action for declaratory

relief on February 21, 1979. In that matter, Bell and Howell

Schools v. Earle Tockman and Joe Ann McClandon, No. 79 CH

1085, the circuit court dismissed the action upon FEPC’s

motion to dispose of the case. The court's order, dated July 2,

1980, also stated that the FEPC was without jurisdiction to

proceed on plaintiff's charges then before it.

On September 10, 1980, the Illinois Human Rights Com-

mission (Commission) (successor to the FEPC) dismissed for

lack of jurmsdiction the administrative complaint relative to

plaintiff's charges. As mentioned above, plaintiff then filed her

present action.

Since the tnal court’s dismissal of this cause and the

pendency of this appeal three cases have been decided which

control our review of the issues before us. In Wilson v. All-

Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489, the Illinois

Supreme Court determined that section 9-102(B) of the IHRA

is unconstitutional special legislation. Insofar as section 9-

102(B) is the successor statute to section 8.0la, we are con-

strained to find that the tral court’s ruling that section 8.0la is

unconstitutional is correct. Thus, plaintiff's rights cannot be

predicated upon it.

However, in a case with many factual similarities the

United States Supreme Court found that an individual’s access

to the FEPA’s adjudicatory procedures was a property interest

protected by the due process clause of the fourteenth amend-

ment. (Logan v. Zimmerman Brush Co. (1982), —— USS.

50 U.S.L.W. 4247, 4250, February 24, 1982.) In Logan,

the petitioner sought resolution of employment discrimination

charges with the FEPC. The FEPC failed to convene a fact-

finding conference within the prescribed 120 days of the filing

of the charges. The Illinois Supreme Court determined that the

FEPC lacked jurisdiction because the 120-day period was

sa

mandatory. (See, Zimmerman Brush Co. v. The Fair Employ-

ment Practices Commission (1980), 82 Ill. 2d 99, 411 N.E.2¢

277.) In reversing this determination, the United States Su-

preme Court found that Logan was deprived of a property nght

without due process when an administrative delay (for which

he was not responsible) led to the dismissa! of his complaint.

In Lott v. Governers State University (1982), 106 Ill. App.

3d 851, 436 N.E.2d 569, the orginal issue on appeal was

whether a suit against the State under section 9-102( B) of the

IHRA could seek monetary damages. The court stated that this

issue became moot after the supreme court's decision in Wilson

invalidating that section. (106 Ill. App. 3d 851, 852.) This

court was then confronted with the dilemma of reconciling

Wilson and Logan. First we found that plaintiff had a protected

property interest in his employment discnmination claim and

that he could not constitutionally be deprived of that interest by

the inaction of the FEPC. (106 Ill. App. 3d 851, 854.) In

determining what process was due plaintiff. we said (106 IIl.

App. 3d 851, 855):

“*** In Logan v. Zimmerman Brush Co., the court

found that ‘Logan is entitled to have the Commission

[FEPC] consider the merits of his charge, based on the

substantiality of the available evidence, before deciding

whether to terminate his claim.’ (__. US. 71

L.Ed.2d 265, 277, 102 S. Ct. —__.) The same

minimum process is due the plaintiff here. Lott is entitled

to have the Department of Human Rights and the Human

Rights Commission ( the successors to the FEPC) consider

the merits of hts discrimination charge in accordance with

the procedures set out in articles 7 and 8 of the IHRA. The

IHRA provides that the Department of Human Rights

must accept and investigate charges of civil nights viola-

tions. The Department may, upon determining that there

is no substantial evidence of a violation, dismiss the

complaint. When a complaint is supported by sufficient

evidence and there has been no settlement or adjustment

through conciliation, the Department must file a written

complaint with the Human Rights Commission, which is

Sa

empowered to adjudicate the dispute and enforce its

findings. See Ill. Rev. Stat. 1980 Supp., ch. 68, pars. 7-102,

8-102.

“It follows that the Department of Human Rights and

the Human Rights Commission are necessary parties in

this action. Upon remand to the trial court, plainuff should

be permitted to amend his complaint and add these entities

as parties defendant. (See Ill. Rev. Stat. 1979, ch. 110,

par. 26 (new parties may be added, by order of court, at

any stage of the cause, as justice may require).) The tral

court should then order the Department to accept and

process plaintiff's charge as set out in the IHRA. [ Foot-

note omitted.] We foresee no limitations problem here, as

plaintiff's original charge was timely brought before the

FEPC.”

We agree with this determination and find plaintiff here to be in

a similar position. Accordingly, counts I and II are remanded

so that plaintiff may amend those counts and add the appropn-

ate entities as parties defendant.

Defendant argues that plaintiff may not now argue the

constitutionality of section 8.0la because of the disposition of

the earlier declaratory action. In light of Wilson, this is now not

at issue. Defendant further argues that Lort is not applicable

because it did not consider the defendant’s due process nghts.

It is specifically argued that the dismissal of the administrative

complaint was not defendant’s fault and to subject defendant to

further proceedings would potentially subject it to increased

back-pay liability. We recognize that an employer has a mght

to an expeditious determination of his liability (87 Ill. 2d 28,

36); plaintiff, however, “is entitled to have the Commission

consider the merits of his charge, based upon the substanuality

of the available evidence, before deciding whether to terminate

[her] claim.” ( Logan, 50 U.S.L.W. 4247, 4251.) Since plainuff

left defendant's employ in August 1976, it is doubtful that

further proceedings will result in increased liability other than

that normally encountered by litigants engaged in our appellate

process.

6a

To the extent this decision may be considered retroactive in

application, we find the result reached in this case will not be an

undue hardship on the parties involved. Considering the

particular relations and conduct of the parties to this case and

the rmights asserted by them, we feel this decision to be

appropriate in light of public policy and the statutory scheme

involved. See, Linkletter v. Walker (1965), 381 U.S. 618.

Count III, based on 42 U.S.C. §1981, claims that plaintiff

was not compensated for overtime work, that she was assigned

additional job responsibilities without an increase in rate of pay

and that when her position was finally upgraded she was not

given a salary increase as were other non-black employees.

Count IV makes similar allegations based upon Article |,

section 17, of the Illinois Constitution. The trial court found

these counts were time-barred largely in response to defend-

ant’s argument that there are no allegations of continuing

violations of plaintiffs mght to be free from employment

discrimination. See, United Air Lines v. Evans (1977), 431

U.S. $53; Patterson v. General Motors Corp. (7th Cir. 1980),

631 F.2d 476, cert. denied 451 U.S. 914.

On appeal, plaintiff argues that her complaint does indeed

make allegations of continuing violations of her mghts. She

argues that the discriminatory pay scheme and defendant’s acts

of retaliation continued until August 1976 when she left the

company after the division with which she worked went out of

existence. It is clear to us, after examination of the complaint,

that it is deficient for the lack of allegations of continuing

violations.

This determination, however, is not entirely dispositive of

this issue. Plaintiff requested leave to file an amended com-

plaint which would allegedly cure the defects by sufficiently

alleging continuing violations on the part of defendant so as not

to be barred by the five-year limitations period for bringing a

section 1981 action (see, Waters v. Wisconsin Steel Works of

7a

International Harvester Co. ( 7th Cir. 1970), 427 F.2d 476, cert.

denied 400 U.S. 911) or for bringing an action under the Illinois

constitutional provision. As noted above, plaintiff included her

proposed amended complaint with her motion to reconsider or,

alternatively, for leave to file an amended complaint. Courts

exercise broad discretion when deciding to grant or deny leave

to amend pleadings. Wheat v. Freeman Coal Mining Corp.

(1974), 23 Ill. App. 3d 14, 319 N.E.2d 290.

Because the complaint was filed November 25, 1980,

plaintiff must allege continuing violations occurred after

November 25, 1975. The allegations made in counts III and IV

of the proposed amended complaint show: from December |,

1974, to October 4, 1975, plaintiff was given additional job

responsibilities without additional compensation; on October 4,

1975, plaintiff's job was upgraded, but she did not receive an

increase in salary; defendant gave salary increases to non-black

employees upon their assignment to additional responsibilities;

plaintiff was deprived of the same mght to employment

opportunities enjoyed by non-black employees as the result of

defendant’s intentional policy of discrimination; plaintff was

not compensated for overtime work done during the penod of

October 25, 1974, to April 1975; and defendant retaliated

against plaintiff for filing charges with the FEPC by taking

away some of her authority and job responsibilities.

Plaintiffs claims for additional compensation prior to

October 4, 1975, and for overtime compensation up to Apn!

1975 must fail for not being made in a timely fashion. So too

must the claims for not receiving a salary increase. Plaintuffs

claim of a discriminatory salary policy is tied into her assertion

that she was employed at a lower grade classification than other

non-black employees with less experience. As an example, she

cites the promotion of a non-black supervisor to a higher grade

classification and rate of pay than she was given. These

allegations essentially complain of discrimination on the part of

defendant by not promoting plaintiff to a better paying grade

8a

classification. The failure to promote or “upgrade” her position

which plaintiff alleges is, absent special circumstances, a “single

act by an employer * * * [which] begins the running of the

statute of limitations and the natural effects of the alleged

discriminatory act are not regarded as ‘continuing.’ ” ( London

v. Coopers & Lybrand (9th Cir. 1981), 644 F.2d 811; see

Patterson v. General Motors Corp.) Plaintiff makes no specific

allegation of the time frame in which she was not promoted and

for this reason her pleading is insufficient to avoid the time

limitation imposed on this case.

For these reasons we find the trial court did not abuse its

discretion in denying plainuff an opportunity to amend her

complaint.

The order of the circuit court of Cook County dismissing

counts I and II is reversed and the cause is remanded for further

proceedings consistent with this opinion; as to counts III and

IV, the order of dismissal is affirmed.

Reversed and remanded in part; affirmed in part.

CAMPBELL, J., and GOLDBERG, J., concur.

9a

APPENDIX B

81-2100

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

FIRST DIVISION

February 28, 1983

Appeal from the Circuit

Joe Ann McClandon,

Plaintiff-Appellant, Court of Cook County.

Honorable

RICHARD L. CURRY,

Judge Presiding.

vs.

Bell and Howell Schools,

Defendant-Appellee.

JUSTICE O’CONNOR delivered the following

supplemental opinion of the court upon denial of defendant’s

petition for rehearing:

|

Defendant argues, in a petition for rehearing, that the

result of this court’s decision allowing plaintiff to add the

Department of Human Rights and the Human Rights Commis-

sion as parties defendant is precluded by the res judicata effect

of the unappealed ruling of the circuit court in Bell and Howell

Schools v. State of Illinois Fair Emplayment Practices Commis-

sion et al, No. 79 CH 1085 [cited in our opinion as Bell and

Howell Schools v. Earle Tockman and Joe Ann McClandon|. In

that declaratory action, defendant was the plaintiff seeking a

ruling that the FEPC lacked jurisdiction over the administrative

complaint because it was not filed within 180 days of the filing

of McClandon’s discrimination charges. See Ill. Rev. Stat.

1979, ch. 48, par. 858.01(a).

As mentioned in the body of our opinion, that action was

dismissed upon the FEPC’s motion to dispose of the case.

There was also a finding that the FEPC was without jurisdiction

to proceed on McClandon’s charges. The administrative com-

plaint embodying McClandon’s charges was then dismissed by

the administrative law judge, also a party to the declaratory

10a

action. Pursuant to notice from the FEPC (see Ill. Rev. Stat.

1979, ch. 48, par. 858.01(a)), McClandon filed the complaint

in the circuit court which is now before us on appeal.

On this appeal, McClandon contended that section 8.0la

of the FEPA is constitutional. In support of this contention, she

looks to the rationale of the Supreme Court decision in Logan v.

Zimmerman Brush Co. (1982), —— USS. 50 U.S.L.W.

4247, February 24, 1982. Defendant construes McClandon’s

argument to be directed at the constitutionality of section

8.01(a). This is a “straw-man” argument.

McClandon’s arguments are directed at section 8.0la.

Defendant’s declaratory action was related to the junsdiction of

the FEPC to proceed on an administrative complaint filed after

the 180-day period required by section 8.01(a). Ill. Rev. Stat.

1979, ch. 48, par. 858.01(a).

Therefore, the effect of the declaratory action, if any (the

action was dismissed rather than granted), was to defeat

plaintiffs claim before the FEPC. Thus, plaintiff was in the

same position as Lott after his charges were not acted upon

within 180 days pursuant to section 8.01(a). (106 Ill. App. 3d

851, 854.) The reasoning and holding of Lort therefore applies.

106 Ill. App. 3d 851, 855.

The petition for rehearing is denied.

GOLDBERG and CAMPBELL, JJ., concur.

lla

APPENDIX C

IN THE CincurIT Court oF COOK CouNTY, ILLINOIS

County Department, Chancery Division

JOE ANN McCLANDON,

Plaintiff,

v, No. 80 CH 8404

BELL AND HOWELL SCHOOLS,

Defendant.

ORAL OPINION

May 4, 1981

THE COURT: Thank you very much. As I indicated when

we commenced, I did have an opportunity to review your

lengthy and learned briefs and I have had an opportunity to

review once again some of the case law that has provided the

background and history for the ongoing difficulties of this

department in answering its legislative mandate.

The statute provides that comprehensive scheme whereby

a citizen can file a charge and have it considered and perhaps

reconciled and if not reconciled, litigate his charges and allega-

tions of discrimination in the employment field.

The statute from the very beginning carried a 180 day time

limit within which the Commission had to perform its function.

The Supreme Court was asked to address the question as

to whether or not the 180 days was a discretionary target to be

aimed at by the agency or whether indeed the 180 days was a

mandatory limit on the agency in moving these cases to a

resolution.

In the Springfield-Sangamon County case the court an-

nounced the mandatory effect of the 180 days and the court

there was expansive in noting the impact of these kinds of

l2a

charges against an employer and decided that finality was

required within 180 days so that the employer could remedy it,

so that the employer could know whether he was going to

receive back from the agency an employee he had dismissed or

discharged or had passed over for promotion, so that uncer-

tainty in the business world would be minimized to the greatest

extent possible and so that the agency would have the appropn-

ate amount of time legislatively set to do its task.

When the 180 days expired here, the defendant in this case

was clear of any prospect of having to defend charges by this

plainuff.

At that stage of the law, the department was in the

embarrassing position of being the sole or exclusive avenue for

relief for those alleging discrimination and having fumbled the

ball by not taking action within the mandatory 180 days on

hundreds or thousands of these charges.

Rather than adequately funding the agency so the agency

could fulfill its mandate initially and then even at the stage of

the 858.01(a) amendment, rather than adequately funding the

agency so it could fulfill its mandate, the General Assembly

sought to take the department off the hook by attempting to

create a pmvate cause of action for those whose cases had be

[sic] botched.

In doing so the General Assembly ignored the court

language, the Supreme Court language that found that the 180

days was a statute of limitations on these claims and the

Justification for that declaration that the employer in these cases

also had a mght and that was that he had a right to have the

agency properly and promptly fulfill its responsibility and

decide these kinds of questions so that the business world could

get on with its business.

858.01(a) is not merely an alternative forum because to

my view it’s an attempt to breathe life into clearly what are

dead claims.

l3a

When an act attempts to void a statute of limitations, it

cannot reasonably be held to be non-substantive and cannot

reasonably be said to be procedural only.

In addition to being unconstitutional for reasons that it

effects the time bar that this defendant is entitled to rely on, but

it is also unconstitutional for equal protection reasons. Equal

protection is not satisfied by the classification set out in the

statute.

The statute, 858.01(a), gives a private right to litigate only

to a very few of the potential claimants whose cases have not

been included within the time limit. As a matter of fact, so

selective is 858.01(a) of the class of claimants for private action

that it gives rise itself to the General Assembly's continuing

preference for exclusivity or for exclusive remedy in the Com-

mission.

It is not to my view reasonable to give this very small, very

select and very hybrid group the private action and then to

deny a private action to all of those who in the future may

receive the same inattention or unprofessional handling by the

agency.

It’s no argument to say that the agency now has 300 days

to do what they couldn’t do in 180. As counsel points out, we

have already seen cases where they can't or haven't or won't do

within 300 days what they had been asked to do in 180 and

then those claimants have no nghts.

There is no distinction between this plaintiff and those

claimants, so for that reason the class is clearly suspect and not

a reasonable classification. So 858.01(a) is retroactive as it

relates to defendant because it creates a new liability for past

events and it is unconstitutional, therefore, for the vanous

reasons I have stated.

l4a

As to Count I]—strike that. As to Count III and IV,

plaintuffs 1981 claim or plaintiff's claim under the constitution,

it is my view that the violations asserted in this Complaint are

not continuing. None of the plaintiff's claims allege a contin-

uing violation. The very best that can be said is that she suffers

the ongoing effect of some past act of discrimination. And in

some of the counts I’m not certain she suffers the ongoing

effects. The allegations in the Complaint are not sufficient to

state a claim for continuing violations.

Count III, the 1981 count, does not allege intentional and

purposeful discnmination. The count is based on—it is based

not on facts alleged, but rather on information and belief and is

therefore also insufficient.

As to Count IV, I believe Count IV is similarly barred by

reason of the time lapse here.

So for all these reasons, the defendant's motion to dismiss

all four counts is granted.

Thank you, ladies.

MS. HANEY: Thank you, your Honor.

MS. LIEB: Thank you.

MS. HANEY: We'll draft an appropmate order.

(Which were all the proceedings had

on this date on the above-entitled

matter ).

lSa

APPENDIX D

IN THE CincurIT Court OF COOK COUNTY, ILLINOIS

County Department, Chancery Division

JOE ANN McCLANDON,

Plaintiff, |

vy. r NO. 80 CH 8404

BELL AND HOWELL SCHOOLS,

Defendant.

ORDER

This cause coming on to be heard upon Defendant's

Motion To Dismiss the Complaint. the Court being fully

advised in the premises;

It is hereby ordered that

Because Section 8$8.0la, the jumsdictional predicate for

Counts I and II of Plaintiffs Complaint, is unconstitutional as

violative of Defendant's due process and equal protection nghts

and creates new liabilities for past events, Counts I and II are

dismissed; and

Because the claims in Count III of Plaintuffs Complaint

brought pursuant to 42 U.S.C. § 1981 are time barred and do

not state a cause of action, Count III is dismissed; and

Because the claims in Count IV of Plaintiffs Complaint,

brought pursuant to Article I, Section 17 of the Illinois Con-

stitution, are time barred, Count IV is dismissed.

16a

Therefore, Plaintiff's Complaint is dismissed in its entirety

with prejudice.

ENTER:

JUDGE RICHARD L. CURRY

MAY 4, 1981

CIRCUIT COURT

MaRIAN C. HANEY

VEDDER, PRICE, KAUFMAN & KAMMHOLZ

Attorney for Defendant

115 South LaSalle Street

Chicago, IL 60603

(312) 781-2200

17a

APPENDIX E

IN THE CincuUIT CourT OF COOK COUNTY, ILLINOIS

County Department, Chancery Division

5

JOE ANN McCLANDON,

Plaintiff,

v. | NO. 80 CH 8404

BELL AND HOWELL SCHOOLS,

Defendant.

ORDER ;

This cause coming on to be heard upon Plaintiffs Motion

for Rehearing, Reconsideration, or to Vacate Judgment or. in

the Alternative, Motion to Modify Order of May 4, 1981 by

Granting Plainuff Leave to File Amended Complaint, the Court

being fully advised in the premises;

IT IS HEREBY ORDERED that:

Plaintiffs Motion is denied in its entirety; defendant’s

request for fees is denied.

ENTER:

JUDGE RICHARD L. CURRY

JULY 23, 1981

CIRCUIT COURT

ROSLYN C. LIEB

Northwestern University Legal Clinic

Attorney for Plainuff

339 E. Chicago Ave.—Room 119

Chicago, Illinois 60611

649-8576

18a

APPENDIX F

Filed

Mar. 30, 1983

Juleann Hornyak. Clerk

No. 58158

IN THE

Supreme Court of Llinois

, Penton Appeal as 2 Matte

of Rig or. Alternative

Pe Leave Appea

rom the Appellate Coun

Ilinow. First Judicial Drs

JOE ANN MeCLANDON,

Plainuft-Appellee

No. 81-2

> a

vs I

There Heard on Appeal from

BELL AND HOWELL SCHOOLS, the Circuit Coun of Cook

Defendant-Appellant County. County Deparment.

Honorabie

Richard L. Curry.

Judge Presiding

PETITION FOR APPEAL AS A MATTER

OF RIGHT OR, ALTERNATIVELY,

PETITION FOR LEAVE TO APPEAL

VEDDER, PRICE, KAUFMAN

& KAMMHOLZ

MARIAN C. HANEY

BARBARA J. STOB

11$ South LaSalle Street

Chicago, Illinois 60603

(312) 781-2200

Attorneys for Defendant-Appellant

Pandick Press Midwest. Inc.. Chicago © (312) 454-7600

19a

IN THE

Supreme Court of Illinois

Petition for Appeal as a Matter

JOE ANN McCLANDON, of Right or, Alrernauvely

Petit ion for Leave To Appeal

Plaintiff-Appellee. | from the Appellate Coun

linois. First Judicial Dis-

trict

There Heard on Appeal from

he Circuit Cour of Cook

unty, County Depa rment

nancery Division

BELL AND HOWELL SCHOOLS, Honorable

Richard L. Curry,

vet

Co

Ch

=

- ly - +

Defendant-Appellant. |

PETITION FOR APPEAL AS A MATTER OF

RIGHT OR, ALTERNATIVELY, PETITION

FOR LEAVE TO APPEAL

I. Prayer for Appeal as a Matter of Right or, Alternatively,

Prayer for Leave To Appeal

Pursuant to Rule 317 of the Rules of the Supreme Court of

Illinois, Defendant, Bell and Howell Schools (‘Defendant’),

seeks to take an appeal from the the decision of the Appellate

Court of Illinois, First Judicial District, as a matter of right.

Alternatively, pursuant to Rule 315 of the Rules of the Supreme

Court of Illinois, Defendant respectfully requests that leave to

appeal from the Appellate Court decision be granted... The

decision appealed from affirmed in part and reversed in part

the Circuit Court’s orders which dismissed with prejudice the

Complaint of Plaintiff, Joe Ann McClandon (‘Plaintiff’), and

which denied Plaintiff's motion for reconsideration or, alterna-

tively, to be allowed to file an amended complaint. Only that

part of the Appellate Court’s decision which reversed in part

the Circuit Court’s dismissal order is the subject of Defendant’s

Petition.

20a

Il. The Appellate Court’s Decision

The Appellate Court’s judgment was entered on January

10, 1983. Defendant filed a Petition for Rehearing which was

denied on February 28, 1983. A supplemental opinion was

delivered on February 28, 1983, upon the denial of Defendant’s

Petition for Reheanng.

III]. Statement of Points Relied Upon for Reversal of the

Judgment of the Appellate Court

This case is appealable as a matter of night or, alterna-

tuvely, leave to appeal should be granted because the Appellate

Court’s decision raises certain constitutional questions for the

first time in this case and is also contrary to clearly established

and unanimous judicial authority. The issues require the

Supreme Court to exercise its supervisory authority because:

|. The Appellate Court’s decision improperly operates to

depnve Defendant of its vested constitutional mghts in a

previous state court judgment, in a Commission dismissal and

in the defense created by the running of a statute of limitations.

2. The Appellate Court’s decision erroneously ignored the

res judicata effect of a previous Circuit Court judgment between

the same parties which directly contradicted the Appellate

Court's decision.

IV. Statement of Facts Relevant to Appeal

In October, 1975, Plaintiff filed two charges with the

Illinois Fair Employment Practices Commission (‘*Commis-

sion’’) against Defendant, which were not settled or adjusted

by conference or conciliation (R. C2).' The Commission did

not issue a Complaint within 180 days after the filing of the

charges (R. C2).

‘Citations to the record on appeal are cited as “R. C___.”

Citations to the Appendix to this Petition are cited as “App. —__..”

2la

On February 21, 1979, Defendant filed a Complaint in the

Circuit Court of Cook County against the Commission, an

Administrative Law Judge, and Plaintiff, seeking a declaratory

judgment and injunction enjoining Plaintiff and the others from

proceeding with the processing of Plaintiff's charges before the

Commission. Bell and Howell Schools v. State of Illinois FEPC,

Earle Tockman and Joe Ann McClandon, No. 79 CH 1085.

Defendant claimed that the Commission did not have junsdic-

tion of Plaintiff's charges because a Complaint had not been

filed within 180 days of the filing of Plaintiffs charges as

statutorily mandated. Ill.Rev.Stat. ch. 48, §858.0l(a) (R.

C61). On July 2, 1980, the Circuit Court ruled that the

Commission did not have jurisdiction to proceed on Plainuff’s

charges, and dismissed the case with prejudice (R. C61). The

Commission subsequently dismissed Plainuffs charges (R.

C61). Plaintiff never appealed from the July 2, 1980 decision

or the Commission’s dismissal of her charges.

On November 25, 1980, Plaintiff filed a four-count Com-

plaint alleging employment discrimination by Defendant.

Counts I and II were brought pursuant to II].Rev.Stat. ch. 48,

§858.0la (“Section 858.01a”)2 (R. C2-C3, C5, C12); Count IIl

was brought under 42 U.S.C. §1981 (R. C7); and Count IV

was brought under Article 1, Section 17, of the Illinois Con-

stitution (R. C8).

On February 13, 1981, Defendant filed a Mouton To

Dismiss Plaintiff's Complaint in its entirety (R. C24). On May

4, 1981, the Circuit Court dismissed Plainuff's Complaint with

prejudice for the following reasons: Counts | and II were

dismissed because Section 858.0la, the jumsdictional predicate

of those Counts, is unconstitutional as violative of Defendant's

2 Section 858.01a permitted a person who filed a charge with the

Commission pnor to March 30, 1978, which charge was not settied.

adjusted or, within 180 days of its filing, the subject of a Commission

Complaint or an order that no Complaint be issued, to seek relief in

Circuit Court.

22a

due process and equal protection rights and creates liabilities

for past events; Count III was dismissed because it is unumely

and does not state a cause of action; and Count IV was

dismissed because it is time barred (R. C138).

On July 23, 1981, the Circuit Court denied Plaintiff's

Motion for Rehearing, Reconsideration or To Vacate Judgment

or, in the Alternative, Motion To Modify Order of May 4, 1981

by Granting Plaintiff Leave To File Amended Complaint

(R. C167).

On January 10, 1983, the Appellate Court reversed the

Circuit Court’s May 4, 1981 dismissal of Counts I and II of

Plaintiffs Complaint, and affirmed the Circuit Court’s dismissal

of Counts III and IV of Plaintiffs Complaint and July 23, 1981

denial of Plaintiffs Motion (App. 10).

In reversing the Circuit Court’s dismissal of Counts I and IJ

of Plaintiff's Complaint, the Appellate Court agreed with the

Circuit Court that Section 858.0la, the junsdictional predicate

of those Counts, is unconstitutional. The Appellate Court

determined, however, that it must be guided by the United

States Supreme Court’s decision in Logan v. Zimmerman Brush

Company, 455 U.S. 422 (1982) (App. 4).

At issue in Logan was IIl.Rev.Stat. ch. 48, §858(b), which

provided that the Commission must convene a fact-finding

conference within 120 days after the filing of a charge. When

the 120-day requirement was not met in Logan, the employer

moved that Logan's charge be dismissed. That request was

rejected. The employer then petitioned this Court for an

orginal writ of prohibition. This Court held that the failure of

the Commission to comply with the 120-day requirement

deprived the Commission of jurisdicuon. Upon this Court's

rejection of Logan’s argument that his constitutional mghts

would be violated if the Commission's failure were allowed to

extinguish his cause of action, Logan appealed his con-

stitutional claims to the United States Supreme Court, 455 U.S

23a

at 427-28. Because that Court decided in that case that Logan

is entitled to have the Commission consider the menits of his

charge in a fact-finding conference, 455 U.S. at 434, the

Appellate Court in this case decided that Plaintiff here is

entitled to a Commission hearing (App. 5-7). Accordingly, the

Appellate Court remanded this case to the Circuit Court with

directions to add the Department of Human Rights and the

Human Rights Commission ( the successors to the Commission )

as necessary parties and to order the Department to accept and

process Plaintiff's charges (App. 6).

On February 28, 1983, the Appellate Court denied Plain-

uff’s [sic] Petition for Rehearing of the portion of the Appellate

Court’s January 10, 1983 ruling which reversed the decision of

the Circuit Court dismissing Counts I and II of Plaintiff's

Complaint (App. 12).

Vv. Argument

A. Because the Appellate Court Decision Raises New

Constitutional Questions in That It Operates To

Deprive Defendant of Its Constitutional Due Process

Rights, the Appellate Court’s Decision Is Appealable

to the Supreme Court As a Matter of Right.

The Appellate Court decided that Plaintiff has a nght to

have the Commission process her charges even though Defend-

ant had obtained a final unappealed-from judgment two-and-

one-half years ago in Circuit Court that Plaintiff does not have

such a mght and even though the Commission had dismissed

Plainuffs charges for lack of junsdiction. The Appellate

Court’s decision is an erroneous departure from well-

established constitutional precedent and deprives Defendant of

its constitutional vested nghts.

it is unequivocally clear and fundamental that Defendant

has a vested mght in the July 2, 1980 judgment that the

Commission does not have junsdiction of Plainuff's charges and

in the Commission’s dismissal of Plainuffs charges. E£.g.,

McCullough v. Virginia, 172 US. 102 (1898); Barnet: v.

24a

Barnett, 336 Ill.App. 601, 84 N.E.2d 648 (3d Dist. 1949).

Indeed, just six months ago the Seventh Circuit Court of

Appeals in Evans v. City of Chicago, 689 F.2d 1286, 1296 ( 7th

Cir. 1982), stated:

Under Illinois law, a judgment becomes a vested

right of property once it is no longer subject to review

or modification. Arnold & Murdock Co. v. Industrial

Commission, 314 Ill. 251, 255; 145 N.E. 342 (1924).

See Smolen v. Industrial Commissioner, 324 Ill. 32.

34-35, 154 N.E. 441 (1926).

Under the Fourteenth Amendment, no state can deprive

any person of life, liberty or property without due process of

law. The United States Supreme Court stated in The Board of

Regents of State College v. Roth, 408 U.S. 564, 577 (1972), that

property interests are derived not from the Constitution but

from independent sources, such as state law:

Property interests. . .are created and their dimensions

are defined by existing rules or understandings that

stem from an independent source such as state

law—rules or understandings that secure certain ben-

efits and that support claims of entitlement to those

benefits.

Under this due process analysis, because Defendant has a

vested property night in the July 2, 1980 court judgment and the

Commission’s dismissal of Plaintuff's charges under Illinois law,

the Fourteenth Amendment also protects Defendant from the

deprivation of that mght.

Plaintiff never appealed from the Circuit Court’s July 2.

1980 ruling that the Commission does not have jurmsdiction of

Plainuff's charges or from the Commission's dismissal of her

charges. The Appellate Court's decision that this case should

be remanded to the Commission for processing of Plaintuff's

charges in spite of Plaintiff's failure in this regard operates to

deprive Defendant of its constitutional nghts.

25a

Contrary to the Appellate Court’s reasoning,? the United

States Supreme Court’s decision in Logan v. Zimmerman Brush

Company, supra, is simply not applicable to this case. In Logan,

the issue of whether Logan’s constitutional nights would be

violated if he was deprived of a Commission hearing because of

the Commission’s failure to hold a fact-finding conference

within the statutorily mandated time period was on direct

appeal. Here, Plaintiff never appealed the July 2, 1980 Circuit

Court judgment that the Commission does not have junsdiction

of her charges or the dismissal of her charges before the

Commission. Accordingly, Defendant, unlike Zimmerman

Brush Company in Logan, obtained a vested right in the court

judgment that the Commission does not have jurisdiction of

Plaintiff's charges and in the Commission’s dismissal of Plain-

tiffs charges.

Further, even if Logan were applicable here, it is

fundamental that constitutional decisions, such as Logan,

should be made prospective only where retroactive application

would deprive Defendant of its vested constitutional nghts.

E.g., Linkletter v. Walker, 381 U.S. 618 (1965), see also

Skinner v. Reed-Prentice Division Package Machinery Co., 70

Ill.2d 1, 374 N.E.2d 437, cert. denied sub nom. Hinckley Plastic,

Inc. v. Reed-Prentice Division Package Machinery Co., 436 US.

946 (1978): Kacher v. Pittsburgh National Bank, 545 F.2d 842

(3d Cir. 1976).

Furthermore, in Logan the Court decided that Section

858(b) “is a procedural limitation on the claimant's ability to

assert his rights,” 455 U.S. at 433, and that Logan “‘is entitled to

have the Commission consider the merits of his charge, based

3 In its ruling, the Appellate Court cited as precedent its decision

in Lott v. Governors State University, 106 Ill.App.3d 851. 436 N.E.2d

$69 (Ist Dist. 1982) (App. 4-6). Love is inapposite. In Lort, unlike

here, there was no prior Court decision that the Commission did not

have jurisdiction of Lott’s charge and, indeed, nowhere in the Lort

opinion is there any indication that Lott’s charge had been previously

dismissed by the Commission.

26a

upon the substantiality of the available evidence, before decid-

ing whether to terminate his claim.” 455 U.S. at 434. The

Court also noted. however, that the State may establish statutes

of limitations because they are “reasonable procedural require-

ments for tnggering the nght to an adjudication.” 455 U.S. at

437.

Pursuant to this Court’s decisions in Springfield-Sangamon

County Planning Commission v. FEPC, 71 [ll.2d 61, 373 N.E.2d

1307 (1978), and Board of Governors v. FEPC, 78 Ill.2d 143,

399 N.E.2d $90 (1979), there is absolutely no doubt that that

180-day Complaint-filing provision is the equivalent of a statute

of limitations. Because such a construction of the 180-day

complaint-filing statute was made by a state court “whose

province it is to construe state legislation,” Chase Securities

Corp v. Donaldson, 325 U.S. 304, 312 n. 8 (1945), it is

manifestly clear that that is the construction which is properly

applicable.

Therefore, unlike the 120-day fact-finding conference

requirement held in Logan to be merely a “procedural limita-

tion” imposed on the processing of the claimant’s charge once it

is filed, the 180-day Complaint-filing requirement is actually a

statute of limitations in that it defines a time period within

which the Commission must file a Complaint if it intends to do

so, thereby placing an employer on notice that the Commission

is making a claim against it.

For virtually the entire history of this State, this Court has

held that the defense created by the running of a statute of

limitations is a vested mght. Board of Education of Normal

School District v. Blodgett, 155 Ill. 441, 40 N.E. 1025 (1895).

More recently, this Court restated and reaffirmed the holding in

Blodgett that a statute of limitations defense is a vested mght

protected under the due process clause of the Illinois Con-

stitution. Wilson-Raymond Constructors Company v. Industrial

Commission, 79 Ill.2d 45, 53, 402 N.E.2d 584, 588 (1980).

27a

Thus, in addition to its federal and state constitutional

vested mghts in a court judgment and Commission dismissal.

Defendant also has a vested right under the Illinois Constitution

in its defense that the limitations penod in which the Commis-

sion could file a Complaint in this case has long since expired.

Similarly, because Defendant has a vested property nght in the

bar created by the expiration of the statute of limitations penod

under Illinois law, under the due process analysis in Board of

Regents, supra, the Fourteenth Amendment also protects De-

fendant from the deprivation of that nght.

Because the Appellate Court’s decision erroneously, and in

irreconcilable conflict with well-defined legal precedent. oper-

ates to deny Defendant its constitutional vested mghts, it is

appealable as a matter of nght to this Court.

B. Alternatively, Leave to Appeal Should Be Granted Because

the Appellate Court Decision’s Failure To Recognize the

Doctrine of Res Judicata Is Contrary to, and Is a Radical

Departure from, Well-Established Law¢

On July 2, 1980, the Circuit Court in Bell and Howell

Schools v. State of Illinois FEPC, Earle Tockman and Joe Ann

McClandon, a case involving the same parties as are in this

case, ruled that the Commission does not have junsdiction of

Plaintiff's charges. Plaintiff never appealed from that ruling.

Contrary to the July 2, 1980 determination of the Circuit

Court, the Appellate Court, by deciding that the Department

(successor to the Commission) should be directed to process

Plaintiff's charges, in substance ruled that the Commission does

“If this Court rules that appeal is not appropnate as of mght but

grants Defendant leave to appeal, Defendant requests that it be given

leave to appeal all the issues raised in this Petition, including those

which Defendant posits it has a mght to appeal. Because the

Appellate Court’s decision denies Defendant its constitutional! vested

rights and is in conflict with well-established judicial authonty, see.

supra, pp. 6-11, Defendant requests that it also be given leave to

appeal those issues which Defendant is seeking to appeal as of nght.

28a

have junsdiction of Plaintiffs charges. In so doing, the

Appellate Court erroneously ignored the res judicata effect of

the contrary July 2, 1980 ruling.

The Appellate Court's determination is contrary to, and is

a radical departure from, well-established judicial authority

which has unanimously recognized the doctrine of res judicata

and its fundamental and necessary place in jurisprudence.

The cases in Illinois and elsewhere’ are legion upholding

the doctrine of res judicata. For example, in People v. Bone, 82

Il].2d 282, 286, 412 N.E.2d 444, 446 (1980), cert. denied, 454

U.S. 839 (1981), this Court stated:

Res judicata and collateral estoppel are judicial

doctrines designed to protect litigants from the burden

of retrying an identical cause of action or issue with

the same party or privy, and to enhance judicial

economy by prohibiting repetitive litigation. ( Park-

lane Hosiery Co. v. Shore (1979), 439 U.S. 322, 326,

99 S.Ct. 645, 649, 58 L.Ed.2d 552, 559.)

Similarly, in Hughey v. Industrial Commission, 76 I\l.2d $77,

394 N.E.2d 1164 (1979), this Court held:

Few rules are more essential or more firmly

embedded in our jurisprudence than that of res judi-

cata. It is a judicially created doctrine resulting from

the practical necessity that there be an end to litigation

and that controversies once decided on their merits

shall remain in repose.

76 Ill.2d at $82, 394 N.E.2d at 1166. The doctrine reflects a

public policy that necessarily mandates an end to litigation after

each party has had an opportunity to present all relevant facts.

Anderson v. City of Kewanee, 99 Ill.App.3d 456, 460-61, 425

N.E.2d 593, $96 (3d Dist. 1981).

5 See, e.g., Allen v. McCurry, 449 U.S. 90, 94 ( 1980).

29a

The basic premise underlying the res judicata doctrine was

recently reiterated in Metropolitan Life Insurance Company v.

Hansen, 102 Ill. App.3d 354, 386, 430 N.E.2d $7, $8 ( Ist Dist.

1981):

Res judicata provides that when a court of com-

petent junsdiction enters a final judgment on the

merits of a cause of action, the parties to the suit and

their pnvies are bound as to those issues which were

raised, or could have been raised. [Citation omitted]

The concept of privity contemplates a mutual or

successive relationship to the same property nghts

which were the subject of pnor litigation.

See also Gay v. Open Kitchens, Inc., 100 Ill. App.3d 968, 971-72,

427 N.E.2d 338, 341 ( Ist Dist. 1981).

Even if the previous judgment was in error it still operates

as res judicata as to the matters actually determined and every

other thing within the knowledge of the parties which might

have been litigated. Jn re Marriage of Donnellan, 90 Ill.App.3d

1032, 1036, 414 N.E.2d 167, 170-71 ( Ist Dist. 1980). See also

LaSalle National Bank v. County Board of School Trustees of

DuPage County, 61 Ill.2d $24, $28-29, 337 N.E.2d 19, 21-22

(1975), cert. denied, 425 U.S. 936 (1976); Morris v. Union Oil

Co. of California, 96 Ill.App.3d 148, 154, 421 N.E.2d 278, 282-

83 (Sth Dist. 1981); Hilti, Inc. v. Griffith, 68 Ill. App.3d 528,

$32, 386 N.E.2d 63, 65 ( Ist Dist. 1978).

Indeed, as the Cour in Jn Re Marriage of Donnellan

pointed out:

A branch of res judicata, referred to as estoppel

by verdict or collateral estoppel, provides a similar

conclusive effect when the same parties or their privies

attempt to relitigate the identical issues actually or

necessanly decided by a court of competent junsdic-

tion in an earlier, but different, cause of action.

90 Il. App.3d at 1036, 414 N.E.2d at 171. See also Raymond

Construction Co., Inc. v. Midwest America Development, Inc.,

67 Ill.App.3d 332, 334, 384 N.E.2d 907, 908 ( Ist Dist. 1978).

30a

Manifestly, the July 2, 1980 ruling by the Circuit Court is

res judicata as to the issue of whether the Commission has

jurisdiction of Plaintiff's charges. Plaintiff. Defendant and the

Commission were parties to the previous case, and because the

Complaint in that case sought to enjoin Plaintiff and the

Commission from proceeding on Plaintiffs charges because the

Commission does not have jurisdiction over them (R. C61), the

ruling that the Commission does not have jurisdiction of Plain-

tiffs charges was a ruling on the merits of that case. That

decision was never appealed. Clearly, the Illinois Appellate

Court’s ruling that the Department (successor to the Commis-

sion) Aas jurisdiction over Plaintiffs charges erroneously ig-

nored the res judicata effect of the July 2, 1980 ruling.

Therefore, because the Appellate Court’s decision erro-

neously departs from unanimous contrary authonty, Defendant

seeks leave to appeal that decision to this Court.

VI. Conclusion

Because the Appellate Court's decision for the first time

raises a question respecting Defendant’s constitutional vested

rights, Defendant seeks to take this appeal as a matter of right.

Alternatively, for the reasons which form the bases for Defend-

ant’s seeking to take this appeal as a matter of mght and

because the Appellate Court’s decision erroneously departs

from well-established law in failing to recognize Defendant's

constitutional mghts and ignoring the res judicata effect of a

contrary Circuit Court ruling involving the same parties as are

in this case, Defendant respectfully urges that the decision of

the Appellate Court be reviewed by this Court. In sum,

Defendant requests that its Petition for Appeal as a Matter of

Right or, Alternatively, Petition for Leave To Appeal be

31a

granted, and that the decision of the Appellate Court insofar as

it reversed the Circuit Court's ruling dismissing Counts I and II

of Plainuff's Complaint be reversed.

BELL AND HOWELL SCHOOLS

By /s/ VEDDER, PRICE, KAUFMAN

& KAMMHOLZ

/s/ MARIAN C. HANEY

Its Attorneys

VEDDER, PRICE, KAUFMAN & KAMMHOLZ

Manan C. Haney

Barbara J. Stob

115 South LaSalle Street

Chicago, IL 60603

(312) 781-2200

24

52a

APPENDIX G

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BLILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

May 31, 1983

Ms. Manan C. Haney

Vedder, Price, Kaufman & Kammholz

115 S. LaSalle St.

Chicago, IL 60603

No. 58158— Joe Ann McClandon, respondent. vs. Bell and

Howell Schools. petitioner. Leave to appeal,

Appellate Court. First District.

The Supreme Court today DENIJED the petition for leave

to appeal in the above entitled cause. Simon, J., took no pan.

This will further serve as notice that the mandate of this Court

will issue to the Clerk of the Appellate Court on June 21. 1983.

Very truly yours.

s/ JULEANN HORNYAK

Clerk of the Supreme Court

33a

APPENDIX H

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

May 31, 1983

Ms. Marian C. Haney

Vedder, Price, Kaufman

& Kammholz

115 S. LaSalle St.

Chicago, IL 60603

No. §8190— Joe Ann McClandon, petitioner, vs. Bell and

Howell Schools, respondent. Leave to appeal,

Appellate Court, First District.

The Supreme Court today DEN/JED the petition for leave

to appeal in the above entitled cause. Simon, J., took no par.

This will further serve as notice that the mandate of this Court

will issue to the Clerk of the Appellate Court on June 21, 1983.

Very truly yours,

/s/ JULEANN HORNYAK

Clerk of the Supreme Court

34a

APPENDIX I

IN THE CincurT Court OF Cook COUNTY, ILLINOIS

County Department, Chancery Division

BELL AND HOWELL SCHOOLS

Plaintiff,

v. NO. 79 CH 1085

P

ILLINOIS FAIR EMPLOYMENT

PRACTICES COMMISSION, ET

AL.

Defendants. |

ORDER

This matter coming to be heard on Motion of Defendant

Fair Employment Practices Commission to Dispose of this

Action, all parties having received notice and the Court being

duly advised in the premises

This Court hereby FINDS that the Fair Employment

Practices Commission has no jurisdiction to proceed on charges

76 C 189 and 76 C 211.

It is therefore ORDERED that this action be dismissed

with prejudice and without costs.

ENTER:

JUDGE ARTHUR L. DUNNE

JUL 2, 1980

CIRCUIT COURT

WILLIAM J. Scott

Attorney for FEPC

160 N. LaSalle

Chicago, Illinois

Moshe Jacobius

Asst. Atty. Gen. 793-3587

35a

APPENDIX J

STATE OF ILLINOIS

HUMAN RIGHTS COMMISSION

5

IN THE MATTER OF:

JOE ANN McCLANDON

COMPLAINANT,

CHARGE NOS |974CN-~O1 89

AND 976CON 12

BELL AND HOWELL SCHOOLS

RESPONDENT, |

ORDER

This matter comes before the Commission upon the Rec-

ommended Order and Decision of Judge Patricia Patton. Judge

Patton recommends dismissal of the complaint on the basis of

lack of jurisdiction by the Human Rights Commission to

proceed on the charges underlying the complaint.

ACCORDINGLY, it is hereby ORDERED that the com-

plaint of JOE ANN McCLANDON against BELL AND

HOWELL SCHOOLS, Charge Nos. 1976CN-0189 and

1976CN-0211 be, and the same are, DISMISSED.

ENTERED: September 10, 1980

HUMAN RIGHTS COMMISSION

/s/ MARION N. BARUCH

Manon N. Baruch

/s/ ARNOLD JONES, JR.

Arnold Jones, Jr.

/s/ REBECCA SIVE-TOMASHEFSKY

Rebecca Sive-Tomashefsky

36a

APPENDIX K

No. 81-2100

IN THE

Appellate Court of Illinois

FIRST JUDICIAL DISTRICT

Appeal from the Circuit Cour

of Cook County, County

JOE ANN McCLANDON, Department. Chancery Divi-

Plaintiff-Appellant, sion

, , No 40 CH 4404

BELL AND HOWELL SCHOOLS. The Honorable

Defendant-Appellee Richard L. Curry.

Judge Presiding

BRIEF OF DEFENDANT-APPELLEE

(EXCERPT )

MARIAN C. HANEY

Attorney for Defendant-Appellee

Of Counsel:

VEDDER, PRICE, KAUFMAN & KAMMHOLZ

115 South LaSalle Street

Chicago, Illinois 60603

(312) 781-2200

Oral Argument Requested

Pandick Press Midwest. Inc.. Chicago. Illinois © 454-764)

B. The United States Supreme Court's Decision in Logan

v. Zimmerman Brush Company Has No Effect on the

Illinois Supreme Court's Ruling That Section 858.01la

Is Unconstitutional.

On February 24, 1982, the United States Supreme Court in

Logan v. Zimmerman Brush Company, 7\ L.Ed.2d 265, held

that Section 858(b) of the Illinois Fair Employment Practices

Act, Ill.Rev.Stat. ch. 48, §851, et seg., was unconstitutional

under the Due Process Clause of the Fourteenth Amendment to

the Federal Constitution. Section 858(b) gave the Fair Em-

ployment Practices Commission 120 days after the filing of a

charge to convene a fact-finding conference to obtain evidence,

ascertain the parties’ positions, and explore the possibility of a

settlement.

The United States Supreme Court decided that Section

858(b) “is a procedural limitation on the claimant’s ability to

assert his nghts,” 71 L.Ed.2d at 276, and that Logan “‘is entitled

to have the Commission consider the ments of his charge, based

upon the substantiality of the available evidence, before decid-

ing whether to terminate his claim.” 71 L.Ed.2d at 277. The

Court also noted, however, that the State may establish statutes

of limitations because they are “reasonable procedural require-

ments for triggering the nght to an adjudication.” 71 L.Ed.2d at

279.

Plaintiff's contention that Logan requires a reversal of

Wilson under the Supremacy Clause of the United States

Constitution ( Plaintiff Mem. 13) is simply without merit. It isa

non-sequitur to assert that the United States Supreme Court’s

Logan decision that the 120-day requirement for holding a fact-

finding conference is unconstitutional under the Due Process

Clause of the Fourteenth Amendment to the Federal Con-

stitution requires a reversal of the Illinois Supreme Court's

Wilson decision that a statute which allows a claimant to file a

38a

previously barred claim in Circuit Court is unconstitutional

under the due process and equal protection clauses of the

Illinois Constituiion and is special legislation.

Plaintiff's attempted application of the Supremacy Clause

of the Federal Constitution to the issues here ( Plaintiff Mem. 4,

13) is inappropriate. Under the Supremacy Clause, “the

Judges in every state shall be bound” by Federal laws. It is

clear, however, that a state court may apply more stringent

standards as a matter of state law when construing state

constitutional counterparts of provisions of the Federal Con-

stitution. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449

U.S. 456, 461 n. 6 (1981). Therefore, even assuming arguendo,

contrary to the fact, that Logan could be interpreted as

rendering Section 858.0la constitutional under the Federal

Constitution, that would not preclude, and would have no effect

on, the Illinois Supreme Court's determination in Wilson that

the Illinois Constitution bars Section 858.0 1a.

It appears that what Plaintiff, in fact, is arguing is that the

180-day Complaint filing requirement, Il].Rev.Stat. ch. 48,

§858.01(a), is unconstitutional under Logan. Even assuming

arguendo that the 180-day Complaint filing requirement is not

distinguishable from the 120-day fact-finding provision and, in

an appropriate case, would be held unconstitutional by the

United States Supreme Court, Plaintiff simply cannot now raise

the constitutionality of the 180-day provision before this Court.

The Circuit Court ruled in Bell and Howell Schools v. State of

Illinois FEPC, Earle Tockman and Joe Ann McClandon, No. 79

CH 1085, on July 2, 1980, that, because the 180-day period had

expired, the Commission did not have jurisdiction to proceed

on Plaintiff's charges. Thus, because Plaintiff did not appeal

that Circuit Court ruling within 30 days, as she was required to

do under Supreme Court Rule 303(a), Plaintiff cannot now

timely raise the issue of whether the 180-day Complaint filing

requirement is constitutional. Instead, Plaintiff is limited by her

previous option to proceed under Section 858.0 la.

39a

Even if Plaintiff could raise the constitutionality of the 180-

day requirement, and even if the requirement was ruled

unconstitutional, that ruling, while it would eliminate the

purported rationale for enacting Section 858.0la, would have

no impact on the Wilson decision that Section 858.0la is

unconstitutional.

The recent decision of the Second Division of this Court in

Lott v. Governors State University, 28 FEP Cases 1313 ( 1982).

is inapplicable here. Lott’s cause of action was based on

Section 858.0la. The Court in Lort acknowledged the uncon-

stitutionality of Section 858.0la, but stated that under Logan

the plaintiff was entitled to have the Commission consider the

merits of his charge. The Court then held that, upon remand,

the Department of Human Rights and the Human Rights

Commission should be added as necessary parties defendants

and the trial court should then order the Department to process

the plaintiff's charge.

The Lort decision does not withstand scrutiny. The Court

in that case never even considered the defendant’s due process

rights vis-a-vis the Commission’s prior dismissal of Lott’s

complaint. Further, the Court did not analyze the effect of its

decision on the defendant who would now be faced with

increased potential backpay liability as a result of the reopening

of a complaint previously dismissed by the Commission.

Undisputedly, the dismissal of a complaint because of adminis-

trative failure is not the fault of the complainant: equally

undeniable, however, is that the defendant was not responsible

for the administrative delay. The Lott Court, nonetheless,

opted to penalize the defendant.

Although it is unfortunate that anyone should suffer from

administrative failure in this case, certainly it should not be

Defendant. The 180-day Complaint filing statute was in effect

at the time Plaintiff filed her charges. Clearly, Defendant had

the right to expect that an existent statute would be enforced.

40a

Conversely. Plaintiff. charged with knowledge of the 180-day

Complaint filing requirement, could have asked the Commis-

sion to take some action within the 180-day period. In other

words, although the Commission is responsible for the adminis-

trative failure in this case. the only person who should arguably

participate in that responsibility is Plaintiff. Manifestly, the

only entity clearly not at fault is Defendant. It is, therefore.

totally inequitable, years after the fact, to require Defendant to

shoulder the blame for the Commission’s inaction. Indeed, the

only cause of action which should be viable is a suit by Plainuff

against the Commission for its negligence. An employer should

not be burdened for its reliance on an existent applicable

statute.

Most importantly, the Lott case simply does not apply to

the case before this Court. Here. the Circuit Court ruled on July

2. 1980, that, pursuant to the 180-day Complaint filing statute,

the Commission did not have jurisdiction to proceed on Plain-

uff's charges and ordered the case dismissed with prejudice.

That July 2, 1980 judgment—even if erroneous—is res judicata

in this case. E.g., Hughey v. Industrial Commission, 76 Ill.2d

$77, 394 N.E.2d 1164 (1979). Plaintiff never appealed that

decision and did not raise the constitutionality of the 180-day

Complaint filing provision; thus, she cannot do so now. Ac-

cordingly, in this case, the Commission does not have junsdic-

tion to proceed on Plaintiff's charges and, unlike in Loft, this

Court is precluded from allowing the Commission to proceed

on these charges.

Moreover, there is absolutely no doubt that Defendant

acquired a vested mght in the previous Circuit Court judgment.

E.g., Barnett v. Barnett, 336 lll.App. 601, 84 N.E.2d 648 ( 3d

Dist. 1949). To deprive Defendant of that vested nght would

violate Defendant's due process mghts and work an injustice

and hardship upon Defendant.

4la

In analogous situations, Courts simply refuse to apply

retroactively a decision holding unconstitutional a statute pre-

viously relied upon. For example, in Kacher v. Pittsburgh

National Bank, 545 F.2d 842 (3d Cir. 1976), the Court was

presented with the question of whether a creditor which

proceeded to enforce its security interest under state replevin

procedures later declared unconstitutional is answerable to a

debtor whose property was seized and sold. In responding in

the negative, the Court stated:

There is ample precedent for a refusal to apply

Fuentes [v. Shevin, 407 U.S. 67 (1972)] retrospectively to

invalidate replevin proceedings begun before the date of

the decision. See, e.g., Douglas-Guardian Warehouse

Corporation v. Posey, 486 F.2d 739, 742 (10th Cir. 1973):

Ruotolo v. Gould, 489 F.2d 1324 ( Ist Cir. 1974); McIngre

v. Associates Financial Service Cc., 328 N.E.2d 492, 495

(Mass. 1975). Giving Fuentes a retroactive effect is not

only harsh and impractical, but as Justice Clark, sitting by

designation, in Douglas-Guardian Warehouse Corporation

v. Posey, supra, 486 F.2d at 742, incisively stated, “‘a

retroactive application of Fuentes v. Shevin, supra, would

work an injustice and a hardship upon [parties] who have

lawfully acquired vested rights in the form of their state

judgments...”

As a consequence, a number of courts have not only

refused to apply Fuentes retroactively but have let stand

attachments and other results of unconstitutional state

procedures obtained after Fuentes had cast doubt on those

procedures but before a judicial decision invalidating the

particular state statutory scheme in question. See, e.g.,

Ruotolo v. Gould, supra; Cranston v. Commercial Chemical

Corp., 324 A.2d 301, 303 (Me. 1974). Parties are thereby

permitted to rely on state statutory procedures even after a

United States Supreme Court decision has rendered them

highly suspect.

545 F.2d at 846 ( footnote omitted ).

42a

Clearly, constitutional decisions may be made prospective

only. Linkletrer v. Walker, 381 U.S. 618 (1965); see also

Skinner v. Reed-Prentice Division Package Machinery Co., 70

Ill. 2d 1,374 N.E.2d 437 (1978), cert. denied sub nom. Hinckley

Plastic, Inc. v. Reed-Prentice Division Package Machinery Co.,

436 U.S. 946 (1978). Such is particularly appropnate where

retroactive application would cause hardship to those who have

relied upon the prior law. Here, the 180-day Complaint filing

statute still has not explicitly been declared unconstitutional!

and, indeed, because that statute, being a statute of limitations,

is distinguishable from the 120-day factfinding conference

period held unconstitutional in Logan, even after Logan the

180-day statute may very well still be constitutional. Assuming

arguendo it is unconstitutional, however, retroactive application

of such finding of unconstitutionality would depnve Defendant

of its vested nght in the July 2, 1980 judgment and would cause

an extreme hardship on Defendant by subjecting Defendant to

potential increased liability previously unforeseen; accordingly,

retroactive application is improper here.

In sum, Lort does not apply here because on July 2, 1980,

the Circuit Court found that the Commission did not have

jurisdiction of Plaintiffs charges, Plaintiff never appealed that

judgment, and, thus, that ruling is res judicata here. Further,

assuming that Lort correctly ruled that in effect the 180-day

Complaint filing statute is unconstitutional, retroactive appli-

cation of that holding would deprive Defendant of its vested

right in the July 2, 1980 judgment and would cause a severe

hardship upon Defendant who played absolutely no part in the

administrative delay and who would now be faced with poten-

tial increased liability previously unforeseeable. Clearly, the

Lott case has no impact on the case before this Court.

43a

APPENDIX L

IN THE

APPELLATE COURT OF ILLINOIS

FOR THE FIRST JUDICLAL DISTRICT

Appeal from the Circuit Coun

of Cook County. County

Deparment, Chancery Divi-

sion

JOE ANN McCLANDON,

Plainufl-Appellan:,

v q No. 81-2100

BELL AND HOWELL SCHOOLS, Honorable

Defendant-Appeliee Richard L. Curry,

Judge Presiding

BRIEF FOR PLAINTIFF-APPELLANT

(EXCERPT)

ROSLYN C. LIEB

Attorney for Plaintiff-Appellant

Northwestern University

Legal Clinic

339 East Chicago Avenue

Room 119

Chicago, Illinois 6061 |

(312) 649-8576

Oral Argument Requested

Proof of Service Within

44a

Logan requires that each complainant, whose timely filed

charge was dismissed because of the failure of the Commission

to convene a fact finding conference within 120 days of the

proper filing of the charge, be accorded a hearing. The same

requirement applies to each complainant whose timely filed

charge was dismissed because of the failure of the Commission

to issue a complaint within the statutorily prescribed time

period. These claimants too must be accorded a hearing. To

hold otherwise would be to deny these persons the due process

of law guaranteed under the Fourteenth Amendment of the

United States Constitution.

Further, to foreclose such claimants from adjudication of

their claims would create two classes of claimants: those whose

claims were adjudicated and those whose claims were not.

Such a classification would result in a denial of equal protection

of the laws. To paraphrase Justice Powell’s concurrence:

Under this classification, claimants with identical

claims, despite equal diligence in presenting them,

would be treated differently, depending on whether

the Commission itself neglected to [issue a com-

plaint] within the prescribed time. The question is

whether this unusual classification is rationally re-

lated to a state interest that would justify it.

The State no doubt has an interest in the timely

disposition of claims. But the challenged classifica-

tion fail[s] to promote that end—or indeed any

other—in a rational way. As [claimants] possess no

power to [issue

45a

IN THE

APPELLATE COURT OF ILLINOIS

FOR THE FIRST JUDICIAL DISTRICT

JOE ANN McCLANDON,

Plaintiff-Appellant,

Vv

BELL AND HOWELL SCHOOLS,

Defendant-Appellee.

NOTICE

TO: Marian C. Haney

) Appeal from the Circuit Court

of Cook County. County

Deparment, Chancery Divi-

sion

No. 81-2100

Honorable

Richard L. Curry,

Judge Presiding

Vedder, Price, Kaufman & Kammholz

115 South LaSalle Street

Chicago, Illinois 60603

PLEASE TAKE NOTICE that on March 26, 1982, we

shall file in the Office of the Clerk of the Appellate Court of

Illinois, First District, Daley Center, Chicago, Illinois, Plaintiff-

Appellant’s Brief, a copy of which is attached and herewith

served upon you.

Attorney for Plaintiff-Appellant

CERTIFICATE OF SERVICE

I, Roslyn C. Lieb, an attorney, certify that I served a copy

of the above Notice and Plaintff-Appellant’s Brief, attached

hereto, upon Maran C. Haney at the above noted address by

46a

placing copies of same in the U.S. mailbox at 339 East Chicago

Avenue, Chicago, Illinois. first class postage prepaid. on March

26, 1982.

Attorney for Plaintuff-Appellant

Roslyn C. Lieb

Northwestern University Legal Clinic

339 East Chicago Avenue. Room 119

Chicago, Illinois 60611

(312) 649-8576