Jurisdictional Statement — Cahoon v. Alton Packaging Corp.

Supreme Court of the United States

OCTOBER TERM, 1986

LEO CAHOON,

Appellant,

VS.

ALTON PACKAGING CORPORATION,

JEFFERSON SMURFIT CORPORATION, and

JEFFERSON SMURFIT GROUP, LTD.,

Appellees.

On Appeal From The Appellate Court

of Illinois, Fifth District

JURISDICTIONAL STATEMENT

JAMES R. MENDILLO

FREEARK, HARVEY, MENDILLO &

DENNIS

115 West Washington Street

Post Office Box 423

Belleville, Illinois 62222

(618) 233-2686

Eric JACKSTADT

Pratt & CALLIS

1326 Niedringhaus Avenue

Granite City, Illinois 62040

(618) 452-1323

Counsel for Appellant

April 27, 1987

4 ~

St. Louis Law Printing Co.,Inc., 411 No. Tenth Street 63101 314-231-4477

_ eee

QUESTION PRESENTED

Whether the Illinois Human Rights Act, ///. Rev. Stat. ch. 68,

§8-111(C) (1985), formerly ///. Rev. Stat. ch. 68, §8-111(D)

(1983), as enacted or construed, violates the Supremacy Clause

of the United States Constitution by prohibiting the filing of

claims under the federal Age Discrimination in Employment

Act (ADEA) 29 U.S.C. §621, et seq, in Illinois courts, unless

state administrative remedies have been exhausted, contrary to

the express terms of the ADEA.

iii

TABLE OF CONTENTS

Page

re rr err er 1

SEI ee Ore er eee er ee |

Constitutional Provisions and Statutes ............... 2

How The Federal Question Was Raised .............. 4

i ede fad as ck Keesastyasascsans 4

pp | Pee ereeeeeerers Teer ere 7

LE aa ie a a ner SP Pa 14

Appendix:

A - Opinion of the Appellate Court of Illinois,

ee Pg ra Ena aids dik wee @ 3 A-1

B- Order Denying Petition For Rehearing ...... A-6

C- Order Denying Leave to Appeal............ A-7

D - Notice of Appeal filed 3- 9-87 .............. A-8

iv

TABLE OF AUTHORITIES

Page

Cases:

Baldwin v. Sears Roebuck & Co., 667 F.2d 458 (Sth Cir.

EL SAR DEARSE RTA eR KE DR LER Caer hd bas 8

Brown v. Gerdes, 321 U.S. 178, 64 S.Ct. 487, 88 L.Ed.

Es ob x 6a cence da ceeiewahe és 1]

Cahoon v. Alton Packaging Corp., 148 Ill.App.3d 480,

499 N.E.2d 522, 101 Ill.Dec. 934 (Sth Dist. 1986) .. 5

Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833 (1876) . 10

Eagleburger v. City of Springfield, 677 S.W.2d 914

Ss SUNG EE in kev iw de ws seed ek ewes 8

Federal Energy Regulatory Com’n v. Mississippi, 456

U.S. 742, 102 S.Ct. 2126, 72 L.Ed. 2d 532 (1982) .. 10

Jacobi v. High Point Label, Inc., 442 F.Supp. 518

Fe gs re ge rae ee ee 8

Kremer v. Chemical Construction Co., 456 U.S. 461,

102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)........... 12

Norfolk & W. Ry. Co. v. Liepelt. 444 U.S. 490, 100

S.Ct. 755, 62 L.Ed. 2d 689 (1980) ............... 12

Oscar Mayer & Company v. Evans, 441 U.S. 750, 99

S.Ct. 2066, 60 L.Ed. 2d 609 (1979) ............. 9, 10, 14

Regan v. Kroger Grocery & Baking Co., 386 Ill. 284,

ee IS 6 b's Sh ak oe ad caaacdcanseedé 11

Ruth v. Aurora Sanitary District, 17 Ill.2d 11, 158

Pe, oes ite eee aes a 8

Second Employers’ Liability Cases (Mondou v. New

York, N.H. & H.R. Co.), 223 U.S. 1, 32 S.Ct. 169,

ee Es 6. 6c 54.004 54 0G e eas ARE Coe 10

SPER ee

Vv

Skilling v. Skilling, 104 Ill.App.3d 213, 432 N.E.2d

WN NE I sh sine ree 8

Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967

OIRO GE rire torments epee Revises 10, 11

Whitfield v. City of Knoxville, 756 F.2d 455 (6th Cir.

PO is santas cates SIRE Me oror tte 12

Constitutional Provisions and Statutes:

Constitution of the United States, Article VI, Section 2

(Supremacy Clause) ........ccccccscccsccceees ee

62 Stat. 929, as amended, 28 U.S.C. §1257(2) ......... 2

81 Stat. 604, as amended, 29 U.S.C. §626(c)(1)........ 2, 8, 13

81 Stat. O07, DUB. FESS ook cc ccccscnccccenceess 3,4,9

62 Stat. 971, as amended, 28 U.S.C. §2403(b) ......... 2

Illinois Human Rights Act, Ill. Rev. Stat. ch. 68, §1-101

ae 4. rer er rrrerr Tre er eT 3, 3, 14, &3

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

LEO CAHOON,

Appellant,

Vs.

ALTON PACKAGING CORPORATION,

JEFFERSON SMURFIT CORPORATION, and

JEFFERSON SMURFIT GROUP, LTD.,

Appellees.

On Appeal From The Appellate Court

of Illinois, Fifth District

JURISDICTIONAL STATEMENT

OPINION BELOW

The opinion of the Appellate Court of Illinois, Fifth District,

attached as Appendix A, is reported at 148 IIl.App.3d 480, 499

N.E.2d 522, 101 Ill.Dec. 934 (Sth Dist. 1986), leave to appeal

denied (February 6, 1987).

JURISDICTION

Leo Cahoon, Appellant, appeals from the judgment and deci-

sion of the Appellate Court of Illinois, Fifth Judicial District,

which was entered September 24, 1986. This decision reversed a

jury verdict and judgment for Leo Cahoon entered in the trial

court on November 4, 1985, under a claim made pursuant to the

federal Age Discrimination in Employment Act of 1967, 29

U.S.C. §621 et seg. (1985). A Petition for Rehearing was denied

by the Appellate Court on November 7, 1986, and a Petition for

Appeal as a Matter of Right, or, Alternatively, for Leave to Ap-

pec! to the Illinois Supreme Court was denied by that court on

February 6, 1987.

A Notice of Appeal to this Court was filed in the Appellate

Court of Illinois, Fifth District, on March 9, 1987, with Proof

of Service.

This appeal is being docketed in this Court within 90 days

after the denial of the Petition for Appeal as a Matter of Right,

or, Alternatively, for Leave to Appeal.

The jurisdiction of this Court is invoked under 28 'J.S.C.

§1257(2). 28 U.S.C. §2403(b) may be applicable to this cause.

CONSTITUTIONAL PROVISIONS & STATUTES

Supremacy Clause, United States Constitution, Article VI §2:

Fhis Constitution, and the Laws of the United States

which shall be made in pursuance thereof; and all Treaties

made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land; and

the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the Con-

trary notwithstanding.

Age Discrimination in Employment Act, 29 U.S.C. §626(c)(1)

(1985):

Any person aggrieved may bring a civil action in any court

of competent jurisdiction for such legal or equitable relief—

as will effectuate the purposes of this chapter... .

—

Age Discrimination in Employment Act, 29 U.S.C. $633 (1985):

___Federal-State Relationship

(a) Federal action superseding state action.

Nothing in this chapter shall affect the jurisdiction of any

agency of any State performing like functions with regard

to discriminatory employment practices on account of age

except that upon commencement of action under this

chapter such action shall supersede any State action.

(b) Limitation of Federal action upon commencement of

State proceedings:

In the case of an alleged unlawful practice occurring in a

State which has a law prohibiting discrimination in

employment because of age and establishing or authorizing

a State authority to grant or seek relief from such

discriminatory practice, no suit may be brought under

§626 of this Title before the expiration of sixty days after

proceedings have been commenced under the State law,

unless such proceedings have been earlier terminated... .

Illinois Human Rights Act, J//. Rev. Stat. ch. 68, §8-111(C)

(1985), formerly ///. Rev. Stat. ch. 68, §8-111(D) (1983)':

Except as otherwise provided by law, no court of this state

shail have jurisdiction over the subject of an alleged civil

rights violation other than as set forth in this Act.

' Public Act of Illinois, 84-717, effective Jan. 1, 1986, redesignated

_former subdivision (D) as (C).

STATEMENT OF THE CASE AND HOW THE FEDERAL

AND CONSTITUTIONAL QUESTION WAS RAISED

Plaintiff Leo Cahoon was fired from his employment with

defendants as corrugator supervisor on November 30, 1981. He

had been employed by defendants for 16 years and was 60 years

old when terminated. (R. 138, 150-151).

Plaintiff filed a formal charge of age discrimination with the

Illinois Human Rights Commission and the federal Equal

Emplovment Opportunity Commission (EEOC) on February

18, 1982. (R. Appendix A-1). After waiting in excess of the 60

days required by 29 U.S.C. §633(b), on August 11, 1982, plain-

tiff filed his Complaint alleging age discrimination in violation

of the Age Discrimination in Employment Act (hereinafter

ADEA) in the Illinois Circuit Court, Third Judicial Circuit,

Madison County, Illinois. (C. 2). Defendants did not seek

removal of this suit.

On December 14, 1982, defendants filed an Objection to the

Jurisdiction of the Illinois Human Rights Commission and a

Motion to Stay on the basis that an ADEA action was pending

in the Circuit Court, and that pursuant to the ADEA, 29 U.S.C.

§633(a), the state administrative proceeding was superseded. (R.

Appendix C-3). Plaintiff agreed, and the Illinois Human Rights

Commission ordered the administrative proceeding stayed pen-

ding the outcome of the state court suit. (R. Appendix C-4).

Thereafter, the ADEA claim went to trial before a jury in the

Madison County Circuit Court in February, 1985. At no time in

the trial court did defendants object or question subject matter

jurisdiction. The jury returned a verdict for plaintiff under the

ADEA in the amount of $67,500.00 for past lost wages. (R.

505, C. 183). The trial court awarded an additional $147,310.00

in future wages and benefits, attorneys’ fees and costs, pursuant

to the parties’ stipulation that these elements of damage under

the ADEA would be assessed by the court. (C. 267). Defen-

— won

\

dants filed a timely Notice of Appeal to the Appellate Court of

Illinois, Fifth District, and on January 13, 1986 filed their Ap-

pellants’ Brief.

Defendants raised eight points in their Appellate brief, one

being that the Illinois Circuit Court lacked subject matter

jurisdiction over ADEA claims on the basis of Section 8-111(C)

of the Illinois Human Rights Act, J//. Rev. Stat. ch. 68,

§8-111(C) (formerly ch. 68, §8-111(D) (1983)). This was the

first time this contention had been made in either the ad-

ministrative or judicial forum.

The Appellate Court reversed the judgment outright, agree-

ing that Illinois Circuit Courts did not have subject matter

jurisdiction of ADEA claims ‘‘unless state administrative

remedies have been exhausted’’ and suggesting that Illinois

courts could decline to hear ADEA suits and require that they

be processed through the state administrative agency only.

Cahoon v. Alton Packaging Corp., 148 Ill.App.3d 480, 499

N.E.2d 522, 101 Ill.Dec. 934 (Sth Dist. 1986).

Plaintiff timely filed a Petition for Rehearing asserting the

unconstitutionality of the Illinois statute (///. Rev. Stat. ch. 68,

§8-111(C), formerly J//. Rev. Stat. ch. 68, §8-111(D)), and assert-

ing that exhaustion of state administrative remedies, which had

not been argued by defendants, was not required. The question

of the subject matter jurisdiction of the Illinois Courts for

ADEA claims was thus first raised in the Appellate Court briefs

of both parties. That the Illinois legislature had no authority to

restrict or reject substantive rights created by Congress, as a

matter of preemption, was first raised in plaintiff’s Appellate

Court brief. The specific assertion that ch. 68 §8-111(D), as

enacted or as construed, violated the Supremacy Clause, was

first specifically stated in plaintiff’s Petition for Rehearing after

the Appellate Court ruled that this statute required a plaintiff to

follow the state administrative framework, an argument not ad-

vanced by defendants in their brief and therefore not addressed

by plaintiff in response.

—_—

Plaintiff’s Petition for Rehearing was denied by the Appellate

Court, and subsequently plaintiff’s Petition for Appeal as a

Matter of Right, or, Alternatively for Leave to Appeal was

denied by the Illinois Supreme Court.

oe, oom

THE QUESTION IS SUBSTANTIAL

As a result of the decision appealed from, Illinois now pro-

hibits access to its courts by ADEA claimants until state ad-

ministrative remedies are exhausted, contrary to the express

language of the federal statute and contrary to established

federal law. This state-imposed requirement violates the doc-

trine of preemption under the Supremacy Clause of the United

States Constitution (U.S. Const., Art. VI §2). The result is to

impose burdens upon an ADEA plaintiff in Illinois that exist in

no other state, and to undermine the very efficacy that the

ADEA intended to promote by explicitly addressing this ques-

tion and eliminating any exhaustion of remedies requirement.

The decision by the Illinois Appellate Court has overturned

the well recognized and accepted procedures for handling

ADEA claims, at least in the State of Illinois. It is submitted

that if this decision is not reviewed, other states will undoubted-

ly adopt its rationale. Ultimately, Illinois, and other states, will

presumably apply its rationale to other civil rights suits, e.g., 42

U.S.C. §1983, if for no other reason than to alleviate their

allegedly congested dockets. Plaintiff will demonstrate that (1)

Illinois courts have concurrent jurisdiction of ADEA claims; (2)

exhaustion of state administrative remedies is not required; (3) a

requirement of exhaustion of remedies violates the Supremacy

Clause of the U.S. Constitution; (4) mandatory use of the II-

linois administrative forum provided denies substantial rights;

and (5) reversal is required not only to correct the error as to this

plaintiff, but also for other ADEA plaintiffs whose claims have

been or may be essentially extinguished in Illinois by this deci-

sion.

Plaintiff’s cause of action was based on the federal Age

Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.

$621 ef seq. It is evident from the statutory language, legislative

history and case law that the United States Congress determined

that state and federal courts would have concurrent jurisdic-

sil nia

tion, which grants plaintiff his choice of forum in either a state

or federal court. 29 U.S.C. §626(c)(1) states:

Any person aggrieved may bring a civil action in any court

of competent jurisdiction for such legal or equitable relief

as will effectuate the purposes of this chapter... . (em-

phasis added).

In Jacobi v. High Point Label, Inc., 442 F.Supp. 518

(M.D.N.C. 1977), the court pointed out:

Clearly, Congress intended for a person aggrieved by a

violation of the Age Discrimination Act to have the right

to bring his action in state court. 442 F.Supp. at 521.

The legislative history also states that the ADEA provides for

concurrent jurisdiction. 1967 U.S. Cong. & Ad. News (90th

Cong.) 2213 at 2218. Eagleburger v. City of Springfield, 677

S.W.2d 914, 915 (Mo. Ct.App. 1984) reached the same result

and held that Missouri trial courts had subject matter jurisdic-

tion of an ADEA claim. See also, Baldwin v. Sears Roebuck &

Co., 667 F.2d 458, 461 (Sth Cir. 1982). No cases have held to

the contrary.

Illinois circuit courts are courts of competent and general

jurisdiction. Ill. Const. Art. VI §7 (1970), provides:

Circuit courts shall have original jurisdiction of all

justiciable matters... .

The Illinois legislature may not deprive Illinois circuit courts of

their original jurisdiction, nor can their jurisdiction be changed

or abridged by an act of the legislature. Ruth v. Aurora

Sanitary District, 17 l.2d 11, 158 N.E.2d 601, 605 (1959), and

Skilling v. Skilling, 104 Ill.App.3d 213, 432 N.E.2d 881, 886 (ist

Dist. 1982).

The conclusion of the Illinois Appellate Court that an Illinois

court must dismiss an ADEA case ‘‘unless state administrative

—

remedies have been exhausted’’, 499 N.E.2d 523, 524, directly

contradicts the ADEA itself and decisions of this Court. 29

U.S.C. §633, entitled Federal-State Relationship, provides:

(a) Federal action superseding State action.

Nothing in this chapter shall affect the jurisdiction of any

agency of any State performing like functions with regard

to discriminatory employment practices on account of age

except that upon commencement of action under this

chapter such action shall supersede any State action. (em-

phasis added).

It further provides:

(b) Limitation of Federal action upon commencement of

State proceedings.

a

In the case of an alleged unlawful practice occurring in a

State which has a law prohibiting discrimination in

employment because of age and establishing or authorizing

a State authority to grant or seek relief from such

discriminatory practice, no suit may be brought under

§626 of this Title before the expiration of 60 days after pro-

ceedings have been commenced under the State law, unless

such proceedings have been earlier terminated . . . . (em-

phasis added).

In Oscar Mayer and Company v. Evans, 441 U.S. 750, 99

S.Ct. 2066, 60 L.Ed. 2d 609 (1979), this Court specifically ad-

dressed and rejected the assertion that exhaustion of state ad-

ministrative remedies was required. This Court held that

§633(b) was intended to give state agencies only a /imited oppor-

tunity to resolve problems of employment discrimination and to

screen those cases capable of early resolution. 441 U.S. at 755.

This Court concluded that besides commencement of state ad-

ministrative proceedings more than 60 days prior to filing a

complaint, no other obligations were placed on ADEA

claimants. 441 U.S. at 759. In this case, plaintiff followed this

ane Minn

directive by waiting 173 days after commencing his state ad-

ministrative proceeding before filing his civil suit. There is no

question that plaintiff has complied with all ADEA statutory re-

quirements, and had his suit been filed in federal court, it would

be ‘‘on all fours’’ with the holding in Oscar Mayer & Company

v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed. 2d 609 (1979).

Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947)

held that states are not free to refuse enforcement of a valid

federal statute. At issue in Testa was a claim under the federal

Emergency Price Control Act which gave jurisdiction to ‘‘any

court of competent jurisdiction’’, just as the ADEA does. The

Rhode Island Supreme Court ruled that Rhode Island courts

could decline to hear such a suit which it said was based on a

foreign penal statute. The United S.ates Supreme Court revers-

ed and held that Rhode Island could not decline or refuse to

hear such a suit.

According to Testa, earlier Supreme Court cases had

repudiated the assumption that federal laws can be considered

by the states as emanating from a foreign sovereign and held

that when Congress speaks through legislation, such legislation

becomes the policy of every state and ‘‘should be respected ac-

cordingly in the courts of the States.’’ 330 U.S. at 391, 392.

Testa held that the state court had ‘‘jurisdiction adequate and

appropriate under established local law to adjudicate this ac-

tion.’’ 330 U.S. at 394.

That the obligation of states to enforce federal laws rests

squarely in the Supremacy Clause was verified in Federal

Energy Regulatory Com’n v. Mississippi, 456 U.S. 742, 102

S.Ct. 2126, 72 L.Ed. 2d 532 (1982). This case also rejected the

notion that states entertain federal actions solely as a discre-

tionary matter of comity. 456 U.S. at 763 n.28. See also, Se-

cond Employers’ Liability Cases (Mondou v. New York, N.H.

& H.R. Co.), 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912), and

Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833 (1876).

—— wo

Interestingly, the Illinois Supreme Court in Regan v. Kroger

Grocery & Baking Co., 386 Ill. 284, 54 N.E.2d 210 (1944),

decided the precise issue presented in Testa three years earlier.

The Illinois Supreme Court ruled the same way as 7Jesta was

decided, and recognized that because the laws of the United

States were the laws of the State of Illinois, plaintiff was entitled

to his choice of forum:

It follows that when Congress grants a right-and makes

no provision with reference to the courts in which the right

may be enforced, a suit to enforce such right may be

brought in any State or Federal court having general

jurisdiction of the class of cases to which the particular ac-

tion belongs. When the Congress creates a right and pro-

vides that the State and Federal Courts shall have concur-

rent jurisdiction of suits to enforce it, such grant of con-

current jurisdiction implies that the plaintiff, in the first in-

stance, shall have the choice of the court in which to bring

the action. He is entitled to whatever remedial advantages

inhere in the particular forum.

The result is that whether the act be regarded as penal or

remedial, makes no difference in this case. It is not a law

of foreign sovereignty. The Emergency Price Control Act

is a law of Illinois and enforceable as such. The courts of

Illinois have not been denied jurisdiction by the act. Such

jurisdiction has been expressly granted to them, concurrent

with the Federal courts. 54 N.E.2d at 218.

The argument advanced by defendants that federal statutes

take state courts ‘‘as it finds them”’ is correct as far as it goes.

However, this doctrine does not mean that ADEA claims

should or can be pursued through a state’s administrative forum

- only. This doctrine means that conditions imposed by the state

court must be conditions for every other litigant who seeks ac-

cess to its courts. Brown v. Gerdes, 321 U.S. 178, 190, 64 S.Ct.

487, 493, 88 L.Ed. 659 (1944). The requirement that conditions

itt Ese

must be applied across the board, regardless of the basis of the

claim, also is present in the so-called ‘‘valid excuse’’ cases. C.

Wright, The Law of Federal Courts, §45 at 269 (4th ed. 1983).

This Court has asserted federal control over incidents of state

trial practice in Federal Employers’ Liability Act (FELA) cases

that might appear to be procedural, and has done so out of con-

cern, apparently, for protecting the rights of FELA plaintiffs.

Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 503, 100 S.Ct.

755, 762, 62 L.Ed. 2d 689 (1980). It should do no less for

ADEA plaintiffs. Further, the filing and deferral provisions of

the ADEA have been held sustantive and not procedural. Whit-

field v. City of Knoxville, 756 F.2d 455 (6th Cir. 1985).

There is reason to question whether the Illinois Appellate

Court correctly construed the state statute in question. It ap-

pears that the legislature recognized the requirements of the

ADEA (and other laws) in the statute itself by the provision

‘Except as otherwise provided by law...’’. Second, as discuss-

ed supra, since the Illinois legislature may not deprive, change

or abridge the original jurisdiction of the circuit courts, which is

established by the Illinois Constitution, it is unlikely that the

legislature intended the construction given the Illinois statute by

the Appellate Court. Whether or not the Appellate Court’s

construction of the state statute is correct, that construction

creates a substantial deprivation of federal rights.

Most significant is the right to a jury trial. Claims under the

Illinois Human Rights Act are heard by an administrative law

judge whose decision is subject to review only pursuant to the

Administrative Review Act. Venue for judicial review is directly

to the Appellate Court, which determines if factual findings are

contrary to the manifest weight of the evidence. JIl. Rev. Stat.

ch. 68, §8-111 (A)(2) & (A)(3). The doctrine of res judicata bars

later judicial action where such claims have been administrative-

ly litigated and judicially reviewed. Kremer v. Chemical Con-

struction Co., 456 U.S. 742, 102 S.Ct. 1883, 72 L.Ed.2d 689

(1980). On the other hand, a jury trial is a matter of right in

a.

ADEA cases. 29 U.S.C. §626 (c)(2). However, a plaintiff in II-

linois must exhaust his administrative remedies before filing his

ADEA claim. When he thereafter files his ADEA claim, it will

be decided on the results of the state administrative proceedings

under the principles of preclusion and res judicata, and he is ef-

fectively denied his right to a jury trial.

A second deprivation to plaintiff is his choice of forum. The

ADEA grants plaintiff his choice of a federal or state forum

both at the administrative and judicial stages. The Illinois,

Statute, as construed, defeats absolutely his right to choose the

State judicial forum notwithstanding the ADEA’s directive that

he can file in any court of competent jurisdiction.

In addition, there is no known authority under the Illinois

Human Rights Act for the imposition of either liquidated

(punitive) or future damages, as opposed to the remedy of

reinstatement. J//. Rev. Stat. ch. 68, §8-108. Therefore, the

remedies provided by the HRA may not be as complete as under

the ADEA which authorizes liquidated damages and future

damages in appropriate cases. Future damages are part of the

award won by the plaintiff in this case.

Also, the statute of limitations under the ADEA, which is two

years, is not tolled by the filing of a claim with a state ‘ad-

ministrative agency; in fact, this statute of limitations is only

tolled for a period of one year to the extent that the federal

EEOC is attempting to effect voluntary compliance. 29 U.S.C.

§626(e)(1) and (2). Accordingly, a plaintiff who is required to

institute and pursue procedures pursuant to the Human Rights

Act to the conclusion, including administrative review, would

be barred by the statute of limitations when he filed his ADEA

claim at the conclusion, as the Court’s opinion suggests he

must. The Illinois HRA contains no time limits within which

the administrative proceeding must be completed.

Plaintiff’s claim, first formally asserted in February, 1982, is

now over 5 years old. The need for expeditious processing of

ren; * Yan

ADEA claims, strongly noted in the Oscar Mayer v. Evans deci-

sion, has been frustrated. This question needs resolution to

avoid repetition of this onerous procedure in other cases and to

allow this plaintiff vindication of his claim.

CONCLUSION

For the reasons set forth, this Court should note probable

jurisdiction of this appeal.

Respectfully submitted,

James R. Mendillo

’ FREEARK, HARVEY, MENDILLO

& DENNIS

115 West Washington Street

Post Office Box 423

Belleville, Illinois 62222

(618) 233-2686

Eric Jackstadt

PRATT & CALLIS

1326 Niedringhaus Avenue

Granite City, Illinois 62040

(618) 452-1323

Counsel for Appellant

April 27, 1987

APPENDIX

1

Coe

ie a,

iver:

APPENDIX A

Leo Cahoon,

Plaintiff-Appellee,

Vv.

Alton Packaging Corporation; Jefferson Smurfit

Corporation; and Jefferson Smurfit Group, Ltd.,

Defendants-Appellants.

No. 5-85-0770

Appellate Court of Illinois,

Fifth District

Sept. 24, 1986

Rehearing Denied Nov. 7, 1986

Al J. Pranaitis, Hoagland, Maucker, Bernard & Almeter,

Alton, for defendants-appellants.

Freeark, Harvey & Mendillo, Belleville, and Callis & Hart-

man, Granite City, for plaintiff-appellee; James R. Mendillo

and Michael J. Meehan, of counsel.

Justice WELCH delivered the opinion of the court:

Plaintiff Leo Cahoon brought this action for damages against

his ex-employer, Alton Packaging Corporation, for damages

and reinstatement under the Age Discrimination in Employ-

ment Act (‘‘ADEA’’) (29 U.S.C. §621 et seq.), and for breach

of an oral contract of employment. Plaintiff sought relief

against defendants Jefferson Smurfit Corporation and Jeffer-

son Smurfit Group, Ltd., on the basis that Alton Packaging was

the agent or instrumentality of the other two defendants. After

a trial, a Madison County jury found for defendants on the

count alleging an oral contract, and for plaintiff on the ADEA

counts. The circuit court entered judgment for defendants on

SP

the contract claim, and denied reinstatement and entered judg-

ment in excess of $214,800 plus costs against all three defen-

dants on the ADEA counts. Defendants appeal. There is no

cross-appeal.

Of defendants’ numerous contentions on appeal, we consider

only defendants’ contention that the circuit court was without

subject matter jurisdiction in this case. Jurisdiction is of two

types, jurisdiction of subject matter and jurisdiction of the per-

son. Defects in jurisdiction of the person may be waived. Ab-

sent subject matter jurisdiction, the court is without authority

to consider or act on a case before it other than to dismiss it.

Lack of jurisdiction over the subject matter cannot be waived,

nor may a party be deemed estopped to raise the issue. Volkmar

v. State Farm Mut. Auto. Ins. Co. (1982), 104 Ill. App.3d 149,

151, 60 Ill.Dec. 250, 252, 432 N.E.2d 1149, 1151.

Section 8-111(C) of the Illinois Human Rights Act (‘‘HRA’’)

states: ‘‘Except as otherwise provided by law, no court of this

state shall have jurisdiction over the subject of an alleged civil

rights violation other than as set forth in this Act.’

(Ill. Rev.Stat.1985, ch. 68, par. 8-111(C).) Article 8 of the HRA

(Ill.Rev.Stat.1985, ch. 68, par. 8-101 ef seg.) provides for hear-

ings on human rights complaints by the Illinois Human Rights

Commission, and further provides for review of decisions of

that Commission in accordance with the provisions of the Ad-

ministrative Review Law (Ill.Rev.Stat.1985, ch. 110, par. 3-101

et seq.). (Ill. Rev.Stat.1985, ch. 68, par. 8-111(A).) These provi-

sions require an HRA Claimant, including an age discrimination

claimant, to exhaust administrative remedies prior to bringing

an action in the Illinois courts. See Mein v. Masonite Corp.

(1984), 124 Ill.App.3d 617, 619, 80 Ill.Dec. 154, 156, 464

N.E.2d 1137, 1139, aff'd (1985), 109 Ill.2d 1, 92 Ill.Dec. 501,

485 N.E.2d 312. In our view the plain language of Section

8-111(C) requires that an Illinois court dismiss an ADEA case

unless state administrative remedies have been exhausted.

— *

Plaintiff does not contend that our legislature intended other-

wise. Rather, plaintiff maintains the intent of the legislature

does not control the jurisdiction of the court in this situation.

Plaintiff’s complaint alleged a violation of the ADEA which

provides in part: ‘‘Any person aggrieved may bring a civil action

in any court of competent jurisdiction for such legal or

equitable relief as will effectuate the purposes of this Act * * *.”’

(29 U.S.C. §626(c)(1) does not purport to confer jurisdiction.

(See generally 20 Am.Jur.2d Courts §§ 91, 93 (1965).) None of

the cases cited by plaintiff supports the conclusion that a civil

rights claimant may ignore the administrative framework pro-

vided by our legislature.

Like the HRA, the ADEA provides administrative pro-

cedures and remedies. Under the ADEA no civil action may be

commenced by an individual until 60 days after a charge alleg-

ing unlawful discrimination has been filed with the Secretary of

Labor, whose duty is to notify named prospective defendants

and seek to eliminate any alleged unlawful practice ‘‘by infor-

mal methods of conciliation, conference, and persuasion.”’ (29

U.S.C. § 626(d).) Apparently in the instant case the Secretary

was duly notified. We do not view that act as conferring

jurisdiction on the circuit court in light of our legislature’s man-

date to the contrary. See People v. Lang, (1978), 62 Ill.App.3d

688, 704, 19 Ill.Dec. 231, 244, 378 N.E.2d 1106, 1119, aff’d in

part, rev'd in part (1979), 76 Ill.2d 311, 29 Ill.Dec. 87, 391

N.E.2d 350, cert. denied (1979), 444 U.S. 954, 100 S.Ct. 433, 62

L.Ed.2d 326, cert. denied (1980), 444 U.S. 1045, 100 S.Ct. 733,

62 L.Ed.2d 731.

Plaintiff argues the Illinois courts are not free to

‘*discriminate’’ against federal claims. We only decide here that

the federal civil rights claim must be prosecuted under the same

procedure applicable to a state civil rights claim. Discrimina-

tion against the federal claim is not in question here. Rather, we

find in section 8-111(C) of the HRA our legislature’s plain direc-

tive that a civil rights claim be prosecuted in the administrative

— oo

forum before it reaches the court, and that a complaint which

‘invokes a federal claim is not entitled to preferential treatment

in that regard. Messrs. Wright and Miller, relied upon by plain-

tiff, write:

**For present purposes, it is enough to note that state

courts may not arbitrarily deny enforcement to federal

statutory claims similar to state law claims that lie within

their ordinary jurisdiction. If proper procedure is follow-

ed in presenting the claim, state law is not independent to

apply a principle of nonenforcement.

**e* £e * *

Whatever may be the extent of the obligation imposed

on state courts to remedy federal wrongs, much room is

left to control the form of the remedy and to impose

reasonable limits on its availability. The Ward decision

[Ward v. Board of County Comm’rs. (1920), 253 U.S. 17,

64 L.Ed. 751, 40 S.Ct. 419] expressly left open the

possibility that the claim might be denied under the state

statute of limitations. In McCoy v. Shaw [(1928), 277 U.S.

302, 72 L.Ed. 891, 48 S.Ct. 519], a similar case, the Court

affirmed denial of anticipatory equitable relief on the

ground that the state could properly require relief to be

sought by payment of the taxes and suit for recovery. The

same principle appears in other contexts as well.

**e* &£e & *

Whatever the extent to which state courts are obliged to

provide some remedy for federal claims, then, it rests on

principles of the nonindependence of state law. Once an

effective remedy is made reasonably available, state pro-

cedural limitations remain generally independent of federal

law, and need survive only the basic tests of adequacy.’’ 16

Wright & Miller [Cooper & Gressman], Federal Practice &

Procedure §4024 (1977).

—

Finally, we find Parks v. Illinois Dep’t of Mental Health

(1982), 110 Ill.App.3d 184, 65 Ill.Dec. 695, 441 N.E.2d 1209, in-

apposite. Section 626(c)(1) of the ADEA does not appear to

support a preemption argument, there being no actual conflict

between section 626(c)(1) and the HRA. In any event, plaintiff

does not expressly argue preemption in his brief.

For the foregoing reasons, the judgment of the circuit court

of Madison County insofar as it pertains to plaintiff’s age

discrimination claims is vacated, and to that extent the cause is

dismissed. The judgment insofar as it denies plaintiff’s contrac-

tual claim is affirmed.

VACATED AND DISMISSED IN PART; AFFIRMED IN

PART.

JONES and KARNS, JJ., concur.

—_—

APPENDIX B

No. 5-85-0770

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

Leo Cahoon,

Plaintiff-Appellee,

VS.

Alton Packaging Corporation, et al., =

Defendants-Appellants.

Appeal from the Circuit Court of Madison County

No. 82-L-627

Honorable Horace L. Calvo, Judge Presiding.

ORDER

(Filed November 7, 1986)

This cause having been considered on appellee’s petition for —

leave to appeal and motion for leave to supplement the record

pursuant to Supreme Court Rule 329 (103 Ill. 2d R. 329) and/or

to amend the pleadings pursuant to Supreme Court Rule 362

(103 Ill. 2d R. 362) and the court being fully advised in the

premises:

IT IS THEREFORE ORDERED that appellee’s motion for

leave to supplement the record and/or to amend pleadings shall

be, and the same hereby is, GRANTED.

IT IS FURTHER ORDERED that appellee’s petition for

rehearing shall be, and the same hereby is, DENIED.

as, oo

APPENDIX C

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Ill. 62706

February 6, 1987

Mr. James R. Mendillo

Freeark, Harvey & Mendillo

P.O. Box 423

Belleville, IL 62222

No. 64508 - Leo Cahoon, petitioner, v. Alton Packaging Corp-

oration, et al., respondents. Leave to appeal,

Appellate Court, Fifth District.

The Supreme Court today DENIED the petition to appeal as

a matter of right or leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate Court

on March 2, 1987.

= ee

APPENDIX D

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

No. 5-85-0770

Leo Cahoon,

Plaintiff-Appellant,

Vv.

Alton Packaging Corporation; Jefferson Smurfit

Corporation, and Jefferson Smurfit Group, Ltd.,

Defendants-Appellees.

Madison County No. 82-L-627

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

(Filéd March 9, 1987)

Notice is hereby given that plaintiff-appellant Leo Cahoon

hereby appeals to the Supreme Court of the United States from

the judgment of the Appellate Court of Illinois, Fifth District,

which judgment was entered September 24, 1986, and reversed

the judgment entered for plaintiff-appellant Leo.Cahoon by the

Circuit Court of Madison County, Illinois, on or about

November 4, 1985. A Petition for Appeal as a Matter of Right,

or, Alternatively, for Leave to Appeal to the Illinois Supreme

Court was denied on February 6, 1987.

This appeal is taken pursuant to 28 U.S.C. §1257(2).

FREEARK, HARVEY, MENDILLO

& DENNIS

nt an al

< N

By JAMES R. MENDILLO

115 West Washington Street

Post Office Box 423

Belleville, Illinois 62222

(618) 233-2686

Attorneys for Plaintiff-Appellant

Leo Cahoon

AFFIDAVIT OF SERVICE

STATE OF ILLINOIS i

COUNTY OF ST. CLAIR

The undersigned attorney does hereby certify and state that

he has caused a true copy of the foregoing document, a Notice

of Appeal, to be served upon Mr. Al J. Pranaitis, Hoagland,

Maucker, Bernard & Almeter, 401 Alton St., P.O. Box 130,

Alton, Illinois, 62002, attorney for defendants, and upon Pratt

& Callis, 1326 Niedringhaus Ave., P.O. Box 1326, Granite City,

Illinois, 62040, co-counsel for plaintiff-appellant, by causing

the same to be placed in a sealed envelope, clearly addressed as

aforesaid, with postage fully prepaid, and by depositing said

envelopes in a United States Post Office mailbox in Belleville,

Illinois, on the 6th day of March, 1987, at approximately 3:00

p.m. o’clock.

/s/ James R. Mendillo

James R. Mendillo, being duly sworn, deposes and states that

the matters contained in the foregoing Affidavit of Service are

true.

/s/ James R. Mendillo

Subscribed and sworn to before me this 6th day of March,

1987.

/s/ Sara Jane Tipton

Notary Public