Reply Brief — Cahoon v. Alton Packaging Corp.

No. 86-1728 =} sk) & pay

IN THE dae ci : ;

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

REPLY BRIEF IN OPPOSITION TO

MOTION TO DISMISS OR AFFIRM _

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

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

TABLE OF AUTHORITIES

Cases:

Brinkerhoff-Farris Trust Co. v. Hill, 281 U.S. 673

SE RARSR SEARO eS EMT ara Were at ren

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

499 N.B.2d $22 (Sth Dist. 1906)... 0. ccscccccese

Mein v. Masonite Corporation, 109 IIl.2d 1, 485 N.E.2d

pe Be ere

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

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

Parks v. Illinois Dept. of Mental Health, 110 Ill.App.

3d 184, 441 N.E.2d 1209 (Ist Dist. 1982) .........

People ex rel. Illinois Department of Human Rights v.

Arlington Park Race Track Corporation, 122

Ill.App.3d 517, 461 N.E.2d 505, 77 Ill.Dec. 882

RCI egies Se cnevaw ands dan ewe nes

Pruneyard Shopping Center v. Robins, 447 U.S. 74

eee ee daar ek he SORE de

Constitutional Provisions and Statutes:

Article VI, Section 2, Constitution of the United States .

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es as 2h a a ceca ec ieeueseeadecwuuvesues

Page

3,4

3,4

No. 86-1728

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

REPLY BRIEF IN OPPOSITION TO

MOTION TO DISMISS OR AFFIRM

This Court has jurisdiction, which should be exercised in

order to correct a rulng which has significant repercussions, not

only for victims of civil rights deprivations, but for all persons

asserting a claim under any federal law where state jurisdiction

is authorized. Defendants’ argument that plaintiff did not pro-

perly raise the constitutional question presented is in error as

plaintiff did raise the constitutional question in the Appellate

Court in his Appellee’s Brief. In addition, the decision of the II-

linois Appellate Court rested upon a basis not before it and not

argued by defendants (exhaustion of administrative remedies),

and therefore was an unanticipated act.

on ie

A review of both defendants’ and plaintiff’s argument in the

Appellate Court, Appendices A and B of Motion To Dismiss

Appeal Or To Affirm The Judgment Of The State Court, will

reflect that exhaustion of administrative remedies was not the

issue raised by defendants; rather, subject matter jurisdiction

was the issue raised and addressed by plaintiff in response.

Plaintiff endeavored to illustrate to the Appellate Court in his

brief that Illinois trial courts did have subject matter jurisdic-

tion of ADEA claims. Admittedly, plaintiff did not dwell

upon, or discuss in depth, the constitutional ramifications of a

decision contrary to his position since the law on the point quite

clearly and overwhelmingly favored his position that state

courts are vested with subject matter jurisdiction of ADEA

claims. Nevertheless, plaintiff did specifically state at that time

that the Illinois legislature did not have the authority to take

away plaintiff’s substantive rights as created by the Congress,

and therefore could not enact legislation that prohib’ied its

courts from hearing a claim which Congress said it should hear:

The Illinois legislature has no authority to restrict, over-

rule, or otherwise reject substantive rights created by the

United States Congress. Parks v. Illinois Department of

Mental Health, 110 Ill.App.3d 184, 441 N.E.2d 1209 (ist

Dist. 1982). Page 2 of Appellee’s (Cahoon’s) Brief be, ore

the Illinois Appellate Court, Motion to Dismiss Appeci or

to Affirm the Judgment of the State Court at App. /0.

A review of the opinion in Parks v. Illinois Dept. of Mental

Health, 110 Ill.App.3d 184, 441 N.E.2d 1209, 1211 (1st Dist.

1982) reveals that no provision of a constitution other than Arti-

cle VI, Section 2 of the United States Constitution (the

Supremacy Clause) was at issue or discussed in that opinion,

and therefore there could be no doubt to defendants or to the

Appellate Court that the basis of plaintiff’s argument was the

Supremacy Clause.

In fact, the Appellate Court itself in the second full paragraph

from the end of its opinion specifically refers to plaintiff’s argu-

a, or

ment and summarily dismisses same, first by concluding that the

ADEA ‘‘does not appear to support a preemption argument’’,

and then by concluding that plaintiff ‘‘does not expressly argue

preemption’’. Cahoon vy. Alton Packaging Co., 148 Ill.App.3d

480, 499 N.E.2d 522, 524 (Sth Dist. 1986). However, such

statements by the court are merely self-serving statements used

to boot-strap its position.

It must be emphasized that at the time subject matter jurisdic-

tion was first raised by defendants, in their Appellants’ Brief in

the Appellate Court, it was but one of approximately eight

issues presented for review following the trial, which necessarily

limited the depth of the discussion. Nevertheless, contrary to

defendants’ position, the issue of subject matter jurisdiction

was directly confronted, and the constitutional question

asserted.

Where the federal question is created by an unanticipated act

of the state court, then it is raised in a timely fashion even

though it is raised for the first time in a petition for rehearing.

Brinkerhoff-Farris Trust Co. v. Hill, 281 U.S. 673, 677-78

(1930); Pruneyard Shopping Center v. Robins, 447 U.S. 74,

85-86, n. 9 (1980). In the event that this Court determines that

the constitutional issue was not adequately raised in plaintiff’s

Appellate Court Brief, plaintiff submits that any such inade-

quacy was the result of the unanticipated determination by the

Appellate Court that exhaustion of administrative remedies was

a condition precedent to state court subject matter jurisdiction.

Such a decision was not contemplated primarily because it was

not argued, but also because of this Court’s decision in_Oscar

Mayer & Company vy. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60

L.Ed.2d 609 (1979). Appellees’ suggestion that plaintiff was on

notice to anticipate this unlikely ruling because of Mein v.

Masonite Corporation, 109 Ill.2d 1, 485 N.E.2d 312, 92 Ill.Dec.

501 (1985) and People ex rel. Illinois Department of Human

Rights v. Arlington Park Race Track Corporation, 122

Ill.App.3d 517, 461 N.E.2d 505, 77 Ill.Dec. 882 (ist Dist. 1984)

ian

is unsupportable. Neither case had anything to do either with

the federal ADEA or with exhaustion of administrative

remedies. Mein v. Masonite Corporation, 109 Ill.2d 1, 485

N.E.2d 312, 92 Ill.Dec. 501 (1985) was not brought under any

state or federal statute, but rather was a retaliatory discharge

case alleging that plaintiff’s dismissal in retaliation for age was

violative of the public policy of the State of Illinois. The Illinois

Supreme Court held that plaintiff’s complaint failed to state a

cause of action.

Equally misplaced is appellees’ reliance on People ex rel. Il-

linois Department of Human Rights v. Arlington Park Race

Track Corporation, 122 Ill.App.3d 517, 461 N.E.2d 505, 77

Ill.Dec. 882 (1st Dist. 1984). In this case, the cause of action

was expressly filed under the Illinois Human Rights Act by the

Illinois Department of Human Rights, and the court properly

found jurisdiction under that Act to be in the administrative

agency.

Defendants now question this Court’s jurisdiction to hear

plaintiff’s claim, just as they originally questioned the Illinois

Human Rights Commission’s subject matter jurisdiction and

just as they questioned the Illinois Circuit Court’s subject mat-

ter jurisdiction (on appeal after the trial). The single time plain-

tiff was able to have his case considered on the merits (in the

trial ...rt), he prevailed. The Illinois appellate courts have

made it clear, by the Appellate decision and by the subsequent

two refusals to hear the case further, that they do not consider

either the substance of this plaintiff’s case or the closing of its

courts to federal claims to be a significant or worthwhile issue.

However, if this decision is allowed to stand, there is not reason

why its application will not be applied across the board, as ad-

vocated by defendants, to exclude jurisdiction in Illinois courts

for claims brought under any federal civil rights statute,

whether the ADEA; Title VII; 42 U.S.C. §1981 or 42 U.S.C.

§1983; or The Fair Labor Standard Act. Similar state legisla-

tion could also be enacted to foreclose suits under other federal

acts such as the Jones or Federal Employers Liability Acts.

a.

i“; oo

It is respectfully requested by Leo Cahoon that this Court

note probable jurisdiction of this appeal, and deny defendants’

motion.

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