Petition for Writ of Certiorari — Minker v. United States

Supreme Court brief1963

Ask Donna

What actually matters in this document.

Text

Office Supreme Court, US. |-

FILED 7

FEB 8 1963,

fm,

' No. 8 0) ¢ | _igein F. DAVIS. CLERK

IN THE

Supreme Court of the United States.

SHERMAN H. SKOLNICE,

fe ¢. ~ Petitioner,

* VS.

CHARLES T. MARTIN; and THUR LILLY; and

CHARLES R: P- IGO, 8

Respondents,

PETITION FOR WRIT OF CERTIORARI TO THE

's SUPREME COURT OF THE. STATE OF ILLINOIS

and/or THE APPELLATE COURT OF THE

STATE OF ILLINOIS, FIRST DISTRICT.

PETER S. SARELAS

30 North La Salle Street,

: Chicago 2, Illinois,

ae CEntral 6-1442,

; Attorney for Petitioner

‘

: .

~ .

_ -

a 3

J ,

’

—

— -

ro)

8 Lae

“4 ‘

® °

z .

“”

a .

~ a

; P -

‘

s R

x : a!

- ‘

' ‘

‘

“ »

& ™ .

é ,

* *

. °

°.

° *

a ‘: vie

o2 ©

: >

INDEX®

e ; _ e

~ PAGE

A TUE ooo oo ancestors pi scons a Sigpast asco A

. + ¢

Documents and Papers tratismitted with Petition 2

URI oo cetera ccirn recta ten ean eae - coe

Questions Presented Se cad eae as Riace is eae hee

Constitutional anti Statutory Provisiens Involved —... 7

ieee GE Wile AOE goss cao hh rq eatin 1 Oe

_ Reasons for gr@@ting the. Writ pesesnnibaavagererninamnninraeny se

_ Appendix: rink

A—Otder of Transfer. ..........::c-te.0-- 27-28

B—Ordéy denying Stay of Mandate ........7........29-80

oie CITATIONS |

‘9 e Ss

Cases toe

American Railway Express Co. v. Levee, 263 U.S. 19, |

Ba Oe BR Ba Do Sire epee aaah gltcseceies 16

Carter v. Texas, 177 UvS. 442, 447, 44 L.Ed. 839, S41, ,

EO. Wr es: Meisk gti Sie Ae 20

Chicago, B. & Q. R. Co. v. Hlinois ex rel. Grimwood,

200 US. 561, 580-581, 50° L.Ed. 596, 604, 26°S. Ct.

BIN =" Snssachsscacidiicasteoeaapitandiossreoceantags SB RI agape Pesta 18

* Chicago Bar aenoocaal Kellogg, 401 II. 2375, 380, -.

B61; SB NB. 24 639 enc ntecnertne Saat 24

Chicago Life Ins. Co. v. Needles, 113 U.S. 574, 28 L. Fd.

"1084, 1086, 5 S. Cf. 6812... Pe eee “21

, ii

City of Chicago v. Campbell, 27 ML. App. 2d 456, 460,

be Sh eR itera mene, SRE ea

' City of Detroit v. Gould, 12 il. 2d 297, 299, 304%, 146

ee... Pr er Saat desra @

‘Compass Sales Corp. 1 v. National Mineral Co, 488

281, 284, 57 NES 2d 88S

PAGE

Davis v. Weehsler, 263 US. 22, 24.2544 s Ct 1, 1,

*. 8 L Ea, 43 t. ee cats psa eC

2 Deerfield: Park District. Prog ress Deve or Corp.,

°99 HI. 2d 132, A37, 174.N. BE. 2d 850 otc... 25

De La Cour v. De La Cour, 363 TIL 545, ‘sis, 2 NK.

Od GOOG 2. ...ccn-n. Teh ite ee spiciceutereaae eee oe

? a ie

_ Dube v v: Allman, 396 til. 470, +76, 72 N.B. od 190.........: 23

“Risk v. State of Kansas, 274 U.S. 380, 385,47 S.Ct.

* 655, 656, 71 L.Ed: 1108 _ etal EET SS Ne

Gomillion Vv. Lightfoot, 364 US. 339, 347, ALS. Ct. 125,

eS oc PORE ALARA R EN Se ORL I UCL 19

Groome vy. Freyn Engineering Co.,-874 Il}. 118, 117, 28

if Be; eres -laiinlasdaseaduon Jeyeanggatestnevnatnoveesivseennees 22

Guttman v. Estate of Gattrtan, 28 Hl. App. 2d 85, 87, oe

170°N.E. 2d 40, .......----. seaancunones iets soak cai beaiapikoomaione 13

Hillsborough Tow nship v. C seagiak 326 US. 620, 623,

66 S. Ct. 445, 449, 90 L.Ed. 358 1. ee

Howard Vv. saan 22 Til. 2d 331, 333. 334, 175 N.E. :

3d 556 cane Dc chshacenapeunsanascheepetcesusehhhsanssavnw BARA Te PI bieceumsacanieoas 26:

Karas v. Sneli, 11 Tih. 2d 23: 3, 236, 142 N. Ki. 2d oe 25

Mandrake v. Schlaeger, 393 Ill. 610, 612 » BUY, 66 N |

2d: 858... aiaiaisaesiah eR aTIT aa tie IA CRN be ON oe 23

ae 2

“ 2” »

im:

, yo ." PACE

Marbury v. Madison, 1 Cranch (U.S.) 157, 177, 2 Le

'* Ed. 60,73" _..... soa Re aba rolrics 21

Marine vy, "Ragen, 332 U.S* 561, 564, ie FHS, 68S. Cte

| 240, 942,°248; 244, 92 L.Eds 170 13, 14, 22

“Marlas v, Virekeos,-]4 TI. App, 24 1,3, 42 NUE. 2d

SOS ALES PPR PEP URAC nm. ee pica csecacices twas 18

A a , ey |

Maupin v. Matipin, 403711 316, 318, 319, 20, 86.N, ait

BE ES cicaeseinetodscteniashs Ss a ha ee

MeCoéy v. Shaw, 277 U.S? 302, 303,48 S: Ct- 519, 72. :

ee) eee ees SeLeeeaeeooues ae

Winsett ex rel, Carey v. “Andriano, 138 U.S. 497, 34 ;

( L.Ed. 1012, 1014, 11 S. Ct. 385 ss. Grane 19-

{Monroe v. Pape, 39), U.S. 167, 174, 1838, 81S. Ct:

ee ee es ig 416

Moore vy. Moyle, 399 Ill. 230, 231, 232, 77.N.E, 2d 651 _.. ws

Parker v. People of State of Illinois, 333 U.S. 571, 575,

68 S. Ct. 708, 710,92 L. Ed. 886 te 15

People v. Billow, 77 Ul. _ 239, 36 N.E. 2d 329 "2. 3

People of State ef New York v. Zimmerman,,278 U.S.

63, 67, 49'S. Ct. 61, 6% 73 L. IRs BN an nstst scence nie ae

Reidelberger v.. Bi-S State evelopment, 8 Til. 2d 121,

1 NE St eee ae

_ Riee v. Sioux’ City Memorial Park C emetery, 349 U S.

70, 74, is S. Ct. 614, ai 99 L.Ed. 897 aetlestataudena serach 17

Rogers v. ‘Alabama, 192 S. 226, 220, re L. Ed. 418- 419,

. 24 S. Ct. 257 PPT ENG 5 RAT Wo cukiuhastesbens grkwasescngsbunnse xc ees Chinas 4

Dhan’. Shaw, 397 lil. 118, 119, 120, 73 N SLB. 20 422 23

Teren v. City of Chicago, 413 - 141, 145, 108 N.F. 2d_

eaten Sa, UREA pT tas ML ep Ree IE eaves 24

oe”

9 2?

; ; as

iv ™

net , : “PAGE

Terminiello v. City of Chicago, 887 U.S. 1, 3, 6, 6955.

Ct. S94, 89D, S897, 95 L.Ed, mai ...z.: one is, ZO, 21

Turainakt vy. Pam, 392 Til. ii. 471; 77, 64 64 N.E. 2d 726 3... Be

222 East Chestnut St. Corp. v.eBerger, 3 TL 2d 32, o,

190 WE Bd TOT inci. Tce aeab take | a

Williams v. Bruffy, 102 U.S. 248; 26 L.Ed. 135, 137,

138 a5 diabesapeccsonccesvess ae essese seeseccsecs asennssvencgeescesncscisanechee 4, 15

Williams Vv. State of Georgia, 849° U. _ 875," 383, TS S

Ct. 814, 819, 99 L.Ed. a ypsasansquaseusaalssodentageenrnssss sqeesese 19 .

Youne¢. Ragén, 387 U.S. 280, 238, 69S . Ct. 1073, 1074, |

gre "I «Sas epee etre eorerenren sateen Set Ge

“References

56 Yale Law Journal via, at piige O80 te lootnotesdd .. ee 18

| Constitution

United: Constitution, Fourteenth Ame ndment,

Sect ar. #....... wasenyeneneqneseneenenenenseces , saupeaaihiannuven keiies aN, 14

Statutes :

Tlinois Civ il Practice Act, Chap. 110, Section 48(1)

(©), I. Rev. Stat. att, page 1235. ....5, 6,7, 18, 20, 21

wee

_IN THE

Supreme Court of the United States

No.

- Se they mt of

SHERMAN H. SKOLNICK; it

Petitioner,

VS.

. -

CHARLES T. MARTIN; and ARTHUR LILLY; and

CHARLES R. PERRIGO,

Respondents.

-PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ILLINOIS

‘and‘or THE APPELLATE COURT. OF THE |

STATE OF ILLINOIS, FIRST DISTRICT.

> a

_® The Petitioner, Sherman If Skolnick, prays that'‘a Writ

of Certiorari be issued to review: the final judgment as —

a form of decision of the Hlinois Supreme Court, entered

in the above entitled. case on Notember 13, 1962. Petition-

ef wishes to explain that he believes it necessary to use

the words and/or in, the heading of this Petition because

of unusual circumstances which are set rdeth f n thts Peti-

tion.

8 re) ON BELOW. ;

. ~~"

* No opinion was rendered | bythe Illinois Supreme ( ‘ourt.

Np reason Was giver.

¥.

% ter

DOCUMENTS AND PAPERS TRQNSMITTED

WITH PETITION.

1. Certified copy of Order of JIhmois Supreme Court

éntered on November °13, §962, transferring petitioner’s

appeal to the Illinois Reediiie Court (First District).

(Appendix A, infra pp. 27-28). “ae

2.” Certilied copy of Order o& Hhineis Supreme Court |

denying petitioner’s Motion for Stay of Mandate of Trans-

fer of the Appeal, pending determination of this Ve tition

for Writ of Certiorari in the Supreme Court of the United

States. (Appendix B , infra; pp. 29-80). . ‘ :)

3. Certified copy of Abstract of Record with nine addi-

tional ‘copies. hie @ 4,

4. Certified copy of Brief with nine additional copies.

No Brie®was filed by respondents, *.

5. Ceytified em of Motion filed by *respandents to

transfer appeal to Appellate Court of Illinois; First Dis-

trict. |

$ |:

. Certified copy of Objections and Counter Siaggestions

of. Soliant to Motion of Re spondents to peor tt wppeal.

7. Certified copy of petitioner's Motion in the -fllitois

Supreme Court to Stay Mandate of ‘Transfer of petition-

er’s appeal pending determination in the Supreme | ‘ourt

of the U nited States.

ued JURISDICTION.

‘The final judgment of the Supremie Court of the State of

Hlinois in the form of an Order of iivoluntary Transfer,

transferring Me Appeal to the Tlinois Appellate Court

(First District), was entered’ on November 13, 1962 (Ap-

pendix A, infra pp. 27-28). ~The ec filed a Mot¥)n

wv |

+ Ww

. e <j Be x °

inthe Hlinois Supreme, Court on November 24. 1962, for

a Stay of Miuhdate of Transfer ponding the determination

‘by the Supreme Court of the United States of petitioner's,

otition for Writ of Certierar).- Motion for Stay of Maf-

date of Transfer, was denied November 27,1962. Accord.

ing t the precedent in De La Cour ve De La Cour, 263

IH]. 545, O48, 2 ON, I. 2d 896, petitionér deélined to docket

the Appe: i! in the Tinois Appell: ute Court (First District) :

ae Noeghestion, howeve i, ther than the constitutional

objection is presented ror decision, Under thes» ci¥-

cumstances no usefubgearpose can ve served by trans-

JSerring the cguse to the Appellate. Court.’ (3 63 Il.

545, at 548. ( Empleasis added.) \ i

. . ‘ e

“<The rule has lenge been settled that if a case is

taken to tl ppellate Court and errors are assigned

of which that court has jurisdiction, the party daking

the appeal or suing out the writ of error is deemed to

have waived all constitutional questions involved. (C it.

+ jee Vuthorities)) This climivates from consid sation

the constitutional questious wees The People \

* Billenc, B77 UL 2°68, 225, 36 Ne dd 339. ° (emphasis.

(Einphasis ‘added:) x

Undér fllinois practice the Order of involuntary Trans-

fer te the Hlinois Appellate Court removes and obliterates

the state -and federal constitutional questions. The Order

of involuntary Transfer: was confirmed and made final by

the denial of Stay of M: indate of Tr: insfer, precluding and

barring further consideration in Illinois of the’ petitioner's

state and'tederal constitutionaf questions. There was left.

therefore no further appellate remedy under the laws of

the State of Illinois. ; . °

Qo 6

’ ag ‘

OW heeev er the highest court of a State, oy any form

of decision, affirms or denies: the validity ofa judg:

ment of. an inferior court, over which it by law can

exereixe appellate authority, the jurisdiction of this

court to review such decision, if it “involve a federal

a“ med =. a

~ '

fe a’ 64

7 Ys 4

. ae

«% og 7

; question, will, upon a proper proceedings, attach. If

cannot make any differe nee whether, after an exam-

ination’ of the’ record of the court below, such deevision

- deas, of by dismissing a writ ‘previously allowed.’

: We ViMiams v. Bruffy, 192 U 8 248, 26 0. Ed. 135, 137-138.

(Empltasis added,)s, : ne

peas s‘Itis A necessary and well:gettled rule that the exer-

cise of jurisdiction by this court to ,protect cons stitn-

_ tional’ rights cannot be. declined when it is plain that

Ee ne : fhe fair Pesult of a AeCISbON is to de ny the riguts.’

PR , Rogers ¥ Mlehama, 192 US 226, 230-48 L. Ed. 417,

“418-419, 24 So Cte 257. (Emphasis added-) ‘

. The petitioner therefore invokes the jurisdiction of this

° Court’ under 28 U.S.C.A. Section 1257(3).

$s Sei eee QUESTIONS PRESENTED.

- 1.) Whether under Ilinois Practice Federal constitution-

al questions, specially set up and claimed by petitioner

‘~ ean be removed and obliterated by an Qfder of involuntary

Transfer to the Ilinois Appellate Court. And whether

the silence of the Nlinois Stipreme Court on the Federal

- gonstitutional questions has the same effect as if the Fed-

“eral constitutional * rights, privileges, and immunities

raised @nd asserted by petitioner had been expressly de nied

. by the Hlinois Supreme Court.

2 W hether Sthe form of decision being a judgment of

the Illinois Stipreme Court declining to entertain a con-

stitutional claim, .is in- effect “an avoidance of a federal

right and an evasion of a federal constitutional question

specially set up or claimed.

. ,

° 3. Whether ‘the [linois Supreme Court's silence’ on the

fedéral question is dharkiove a failure to recognize fed-

eral rights, privileges, and imuiumities, - * And whether | the

«~~ be expressed bw refusing a writ‘of error or supttrse-

” : - a

decision of the ease en some form of nical: prac tite neces-

sarily has the same effect as if the claim of federal rights,

privileges, and immunities, had been expressly denied.

4. Whether the applieation ef the provisions af Section

48(1)(¢) of the Ciy il Practice Actvof Ufinois, Ml. Rev. Stat.

(1961) Chap. 110, See. A8(1) (J, page 122);

(a) to dismiss:a ‘stat tort action “hoeause. of the

pendency in the Federal Court of a Civil Righty case

supplementary to that state tort, action,

ts s

(b) ‘to penalize a plaintiff in a state tort action be-

cause he filed in the Federal court h Civil Rights case’

supplementary to the state tort action, ise therefore,

repugnant to the Constitution and laws of the United -

‘States and contrary to decistons of the Supreme Cotirt

of the United States, ah

_ Whether the jndgme nt of the Hinets Supreme Court

= ‘tee a form of decision or device to avOid Federal

constitutional questions, therefore contravenes the Due

Precess and the Equal Protection of the Laws guaranteed

by Section 1, Fourteenth Amendment to the Constitution

of the United States? And also contravening Section

Fourteenth Amendment, by preeluding, in practice, a state

tort ‘action because of the pendeney in the Federal court of ,

a Civil Rights case supplementurs v to that SURE tort action.

W hether a litigant need prosecute a constitutional

i to 2 non-constitutional state court in order to have

a finality of judgment necessary to an apfplication to the

Supreme Coal ot the United States for a Writ of Cer-

tiorari. And whether the involuntary transfer to such

non-constitgtional state court is thereby an obstacle to the

assertion and vindication of Federal constitutional rights,

privileg@s, and immunities, 5

. : )

. *

| ; 6

7 Whether the Constitution ‘and laws of the United

States and “any precedent decisions of the Supreme (Court

of.the United States contemplate a paradox where the

petitioner must éxhaust a state remedy which obliterates

Federal constitutional questions, in order to assure review

in the Supreme Court of the United StateSof, the express

denial by g state court of petitioner's Federal rights. priv-

ileges, and ismmunities.

{ °

} ~* ‘

after such involuntary transfer.

8. Whether petitioner,

ef appeal, by declining to docket his appeal in the The

nois Appellate Court, has ‘thereby reserved the Federal

constitutional questions so that the Supreme Court of the

United States can determine for itself Whether petitioner's

Federal rights, privileges, and immunities had been ex-

pressly denied by the I}linois Supreme Court And wheth-

er the Supreme Court of the United States is not con

eluded by the view taken by the highest court of the State

of [linois int regard to those Federal rights.

Q. Whether a state stafpte of general seppe by being

applied and enforeed against a particular transaction

where there was a distinct and timely insistence that the

statute thus applied was repugnant to the Federal consti

tution and laws—whether sueh statute is therfore uncon-

stitutional and void. a

10. Whether the application of Section 48(1)(e), Chap.

110, Ill. Rev. Stat. (1961), to penalize petitioner for hling

his Civil Rights ease in the Federal court. supplementary

to his state tort action, therefore. impairs the authority -of

the fedeFal government.

». 11. Whether the Illinois Supréme Court in effect has

expressly denied th petitioner’s Federal constitutional

questions and -therefore impairs the authority of the fed-

eral governndgnt. .*

; ro y'

‘

12. Whether the Hlinois Supreme Court in effect: im-

pairs the authdrity of the federal government by “oxpressty _

giving tothe Federal constitution And Federal laws a con

struction adverse to such authority.

oD . . : ss * : oe . “

13. Whether an Order of itoluhtary Transfer to the

linois Appellate Court can be used, under color of law

or under color of state practice, as An instrument of stat -

power to deprive petitioner of Federal coustitutional

rights, privileges, and immunities, —

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED. ;

A.) Amendment NEV to the Constitution of the United

StatessSection 1:

“All persons bern or naturalized in the United

States, and subject to the jurisdicti@n thereof, are ¢itl-

zens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridve the privileges or immunities of ¢itizens

of the United StatwBror shall any State deprive any

an at of lite, libe®fy, or property, without due proc-

ess/of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.”

B.) Hlinois Civil Practice Act, Chap. 110, Section

48(1) (ce), Th. Rev. Sfat. V61, page T2509 provides:

“48. Involuntary dismissal based upan certain de-

fects or deferises. ag ;

“(1)) Defendant may Gwithin the time for pleading,

_ file a motion for dismissal of the uetion or for other

“appropriate relief upon any ot the following grounds.

If the grounds do not appear on the face of the plead-¢

ing attacked the motion shall be supported by at-

fidavit: * * ° ‘ :

“(¢). That there is another action pending between

the sAme parties for the same cause.”

‘

STATEMENT cs THE CASE.

On January 7, 1960, the respondents procured an Order

of Court in the Cireuit Court of Cgok Coun y, Case No.

08 C 72K, for petittoner’s appearance at 2 p.m., or the same

day, in the office enclosure of respondent, Charles T. Mar-

tin, for the (aking of petitioner’s discovery deposition on

oral interrogatorfes. Petitioner's request for a profeeyve

. Order for his safety, with the minimum requirement of giv-

ing his deposition in a neutral place, was oo by the

“respondents and denied by the Court. (Abst. 2; Rec. 4).

The petitioner, a polio victim since 1936 at the age of §,

and a paraplégie With a scoliosis spinal condition, had 16

major operations up to 1945, Within his chest frame and

cag petitioner has a series of artificial muécles made up of

thigh facia, seriously restricting petitioner’s sitting contin

uously for more than 45 minutes. Sin@e 1937 until the

deposition events on January 7, 1960, petitioner was an

ambulatory on braces and crutches, suffering from flaccid

paralysis of both lower extremities, a@d paralysis of the

anterior abdominal muscles, and scoliosis of the dorsal

and lumbar spines, all from polio. (Abst. 1-2; Ree. 3).

His condition of debility and ineapacity was visible and

known to the respondents. (Abst. 2; Ree. 4).

Under fhe guise and pretext of Discovery Deposition

Process, armed with a Court Order, the respondents wrong-

fully, illegally, wantonly, intentionally and maliciously,

contrived and combined ‘to subje ect the petitioner to an

ordeal of torment, jntimidation, oppression, torture, harm

and injury and to inflict upon the es pain, mental

anguish and distress, by committing or causing, allowing,

cousfnting and approving to b= committed the following -

overt acts (Abst. 3; Ree. 4-5): : o

Aa) Directe d and forced the petitione r to sit from 2 ? p.m.

to 6:20 p.m, ina low back, harrow chair with no arin rests

of an ae height, disregarding and ignoring his pre-

tests. (Abst. 3: Ree. 5). .

(b) Took gud kept away from petationer his_crute ‘hes

Which he needed for support ang. protection. (Abst. 4;

Ree. 5). ph.

“(e)) Dhreeted and forced petitioner's fathers to sit ata

distance, awayeagrom the petitioner,*preventing the needed

attention me

kis position aiid }

father does wi n petitioner sits down. ( Abst. 4; Ree. 5).«

‘ather to lift petitioner's legs, rearrange

e and reposition the petitioner as his

(d) The respondent, Charles T. iaetin. was standing

over the petitioner and screaming down at him, ignoring ~~~

petitioner’s protestations. \{ Abst. 4; Ree. 5). - .

(ce) The respondent Charles T. Martin, hovering over

thes petitioner, wrerched an envelope from him, removed

‘the contents and flung,the envelofw back at the petitioner.

(Abst. 4; Ree. 5).

(f) Kept the petitioner sitting for four hougs and twenty

minutes in such low back, narrow chair with no arm rests

of an adequate height, thereby causing the petitioner to

suffer great spinai pressure because of no back or “arm

sepport, which caused a caved in back effect-on scoilosis ,

spine of petitioner; severe hanging leg pressures; great

impinging pressure at hip bone soekets because of lack of

back support on ac count of petitioner? s leg braces extend-

ing up to the hips; thigh pains; pulling down of weight of

braces with the hip end of brages pushing up; and caused

fulerum pressures like on see-saw, ail-of which were known |

or made known t@*the respondents. (Abst. 4; Ree. 5-6).

“3

’

ae!

(g) During. the taking of petitioner's discovery deposi-,

tion, the respondents operated a secret recording device

concealed. in another room under their mamipulation and:

control, without informing the petitioner or lis attorney,

either before or during the taking of the deposition, and

without stating for the record their design and purpose,

Such seeret recording was carried on while respondents’

own court-reporter was taking down pe ‘titioner’s deposition

stencgraphically. (( Abst. 45; Ree. 6).

After the above'described ordeal, the petitioner collapsed,

becoming delirious and was transported to his home suffer-

ing constant pain in his back. He was forced ta-stay in

bed for a period 6f two weeks, and ever since, the petitioner

cannot ambulate with his crutelies as*theretofore, necessi-

tating the‘use of a avhevl chair. Ag a consequence of jue h

an ordeal the petitioner has als@ sutfered attacks of

dyspnea and hasthecome completely paralyzed... (Abst. 5;

Ree. 6). . £

The respondents filed a motion fo dismiss alleging as

their. sole ground that th? pendenes ‘y of petiteoner’s ection

in the Federal Vourt against the: re spondents, filed on the

‘same day, January #th, 1962, is a bar to petitioner's action

in the State Court. (Abst. 6, 7-12, 15; Ree. 16, 19-24, 35).

gUbjegtions with Counter-Affidavit were filed by petition-

er, om strike or deny respondents’ motion to dismiss. (Abst.

; Ree, 29-31). , ; mi

ye Ne date of Mareh 1: 4 1962, a letter , on the anes

of the attorneys of reeord for respondent, Charies T.

Martin, was addressed to the-** Honor: able Daniel A. ¢ ‘ovel-

li, Room 911, County Building, ¢ ‘hicago, Iinais’’, the judge

of the trial Court, without serving 2 copy on, petitioner's

attorney. This letter was signed by the respondent,

Charles T. Martin, a lawyer, member of an ghonorable

profession. It-vontained; infer alia, respondent Martin’s

self-serving’ assertions, declarations and coneclusions® of

F | aT

matters outside the record, including a libelous Pare nA E

against the petitioner, (Abst. 16-17; Ree. 46).

On Mareh 28, 1962, the trial Court sustamed re sponder nts

motion and dismissed “petitioner *s suit at his costs. In

addition, the Court denied petitioner’s motion to file an

furlended Complaint. “te Abst. 16; Res. 44)" :

Petitioner appealed to EHlinois Supreme Court praying

that said Orders ef the trial Court be reversed with diree-

tions 18 deny respondents’ motion to dismiss the petition:

er’s suit and to rule on respondents to answer the Com-

plaint on the myrits, or, in the alternative, to allow pett

tioner’s motioneto file an amended Complaint. (Abst. 17;

Ree. 49).

On November 12, 182, the Tififiois’ Supreme Court en-

. .

tered an Ordeweor ‘Transfer, transferring the Appeal to

the Hlinois Appellate Court (First District) to which pe-

titioner objected: (Certified copy of petitioner's Objections

and Counter -Sugyestions to Respondents’ Motion te Trans-

fer Appeal.) c .

On November 24, 8962, the petitioner Med a Motion in

the lilinois Supreme Court fora Stay of Mandate of Trans-

fer spending the determination by the Supreme Covert of

the United States et petitioner's Petition for Writ of Cer-

tierari. (Appendix B, mira: pr. 2UBO). :

Motion for Stay of Mandate of ransfer was denied

November 27, 1962. (Appendix By twfra, pp. 29-50),

Petitioner declined to docket the Appeal in the Hlinois

Appellate Court (First Distriet).

“Federal Constitutional questions. were ajleged, Taised

and asserted ino petttier’s pleadings in the state ‘trial.

“court, ‘Abst. 3, pars. 7, 8; Ree. 4, 5; Abst. 13-14, pars. 1

to 6: Ree, 28- 30). 4 .

Federal Coustitation il questions are inherent in. the

judgment order of the state trial court dismissing Yrti-

tioner’s cause of attion. Té reads (Abst. 16; Ree. 44):

e : 4

x ) * ;

Order of Court entered March 28, 1962:

, “¢ ‘ or ae

“This cause-coming on to be heard on metion of

the defendants, Arthur Lilly and Charles -R. ‘Perrigo.

by their attorney. B. F. Martin, and defendant Charles

Martin, to dismiss the above captioned law suit for

the reason that there is presently pending int the

Un:ted States Distriet Court for the Northern District

of Hlinois, Eastern Division, another action pending

between the same parties, with the same alignment of

perties, for the same alleged cause. The Court being

fu.ty advised in the premises and having jurisdictién

of the subject matter“hnd of the parties; It is hereby

ordered that the motion of the defendants is hereby

sustained and this suit is dismissed at plaintiff's costs.

jt ts further ordered that plaimiff’s motion £4 file an

amended complaint is hereby denied.’ - :

Federal Cohstitutional questions are raised and asserted

in. petitioner's Brief filed in the Illinois Supreme Court.

(Certified copy of Brief, ander Plaintitf's Theory,. pp. 2-3,

pars. 1-6; and under Jurisdictional Grounds, pp. 4-5, pars.

1, 2, #. 7: under Peints and Authorities, pp. 6-8 sand under

Argument, pp. 13-17, Points I, I-A, I-B, Ld; and in the

Conclusiong p. 18.)

And Federal Constitutional quéstions are alleged, raised

and asserted in petitioner's Objections and Counter-Sug-

gestions in opposition to the Motion of: respondents to

. . Ll . - {

transfer the appeal, in paragraphs 1, 5, 6, (5, 9. Para-

graph S states: .

, “A transfer of plaintiff's appeal to the Appellate

Court would constitute another denial of Due Process

of Law, sinee under TIlinois Practice the -Appelinte

Court has no power to consider-and pass on the eon-

stitutional questions raised, asserted in the Court: be-

low and inherent in the Ord&s appealed from, showing

denial to the plaititit? of Due Process of Law and of

basic constitutional rights.*? (Abst. 13-14; Ree. 29-30),

(See, Certified copy of Objection’ and Counter-Sugges-

° F . e,*

tions transmithed With Petition.) :

ae eee .

“&

————— eee

«4

REASONS FOR GRANTING THE WRIT. -

Que eee

re)

Under Hlinois practice an appeal to the Hlinois “Ap.

pellate Court automatically eliminates and obliterates the

* constitutional questions, **The transfer of this cause from

the Supreme Court removed the constitutional question

‘from the appeal.” * Guttman Vv. Estate of Guttman, 28 Til.

App. 2d 85, 87, 170 NUE. 2d 40.( 1960)... (Emphasis added.)

state

atten? hie eonstitubton neither ¢ stablished this court

ner cOKerred upon it jurisdiction over appeals’ Mar-- -

las vo VNrekeos, 14 TN. App. 2d i. th i4z N.E. 2d 808

(oa7). (Bk niphasis added.) >

is self-evident therefore that a con: A em ¢laim,:

er federal, cannot be sent to the. Tliswis Appellate

Court without obliterating such -eonstitutronal elaim.

°%

* * .

“The issues argued on appeal with added em-

phasis en the constitutional question. The Appellate

Court cannot consider the latter.’ City of Chicago v.

A%mpbell, 27 I. App. 2d 456460, 170 NIK. 2d 19

(1960) (Mmphysis added.) - , 6

n appeal to the Ilinois Appellate Court obliterates the

frate and federal constitutional questioas under any cir-

cumstances, “Tf any constitutional question was involved

. of itawas argued and decided there it was waived by

‘ an -appeal to the Appellate Court * * *."? Compass Saless

Corp. v. National Mineral Co., 388 Tl. 2814 284, oF N.E. 2d

RRP (1944). (Eryphasis added.)

= j ? . & 5 > ‘ -- 5!

» AAs was said in Werino v. Ragen, 332 U.S. 561, 564:

This rule, requiring ‘exhaustion af*state remedies

*,s ’ . pn. . -

“as a condition precedent to federal: relief, has been

firmly established yy repeated decisions of this Court.

=e “4 ow

** * But it has always been clear that the rule may Se

: applied only on the asumption that an adequate state

‘remedy is actually available. (C iting authorities, ) And

it would be nothing less than abdication of our cons

with this mechanical formula®ehenever it Inay*become

clear that,the allaged state remedy is nothing but a

procedural morass offering no sabstantial hope of. Ree

- lief. Experience has convinced me this is true of Thi-

iois.’? (Emphasis added.)

The denial of Stay of Mandate of Transfer has the

finality necessary to the review by this Court of the Fed-

eral Constitutional questions specially set-up and claimed

by petitioner, because it js ‘** * * a situation pire: udy ‘SO

muddled that only one rational conelusion niav be dr&wn.

It is that the Illinois osagetaboudin wh is made lp ett

tirely of bling alleys, each of which .ts ‘useful. only as a

means of convencing the federat courts that the state road

which the petitioner has taken wasethe wrong one.’? ¢Mar-

ino y: Ragen, 333 US 561, 567.)

, ‘The exhaustion-ef-state-remedies tale should wot be

stretche@? to & * * absurdity.’ (Marto ve Ragen, 382 US

561, 568.) . r 4

Petitioners soueek: having nothing but fede ral and state

constitut@nal questions, sent to the *HMinois Appellate

Court, would be more than exhausting! aneinadedqnate rem."

edy—it would be fatal to the petitioner's claim otk any

constitutional rights, privileges, ‘and immunities, and <

Due Process and =a Equal Protection of the Jaws, SO

teed ‘by Section 1, of the Fourteenth Amendment to the

Constitution of the Uhited Stater. ; j

s “

stitutional duty and functions to rebutf petitioners

But petitioner believes he has taken the right\road to

the United States Supreme Court. \

» The channel through which the constitutional ques-

~ tions, raised by petitfoger * * * could have been taken

all the way to this ( ‘aurt was not only cleidtrly marked,

it Was also Open aud ‘wnobstructede”’ Parker v. i i ‘ople

of State of Illindis, 338-08. 571, 575, 68 S.Ct TOS,

710, 92 L. Nd. S86,

~ ‘*Dhit it is not simply a question of state procedure

when a «tate court of jast resort closes the door to

anu consideration ofa clainy ‘of denial of a federal

right.’ Foung we Raa Moe NY a SS, As D, U8, Oo Ss. ('t,

1073, 9074, 93 L. Ed. 1333. (8 ‘mphasis in the opiniyn

itself. )

Petitioner has decline d to doe ket his Appeal in the Hh

“nois Appellate Court (First District) although the Hlinois

* Supreme ‘Court has denie l The Stay of Mandate of: Trans-

fer to the Hlinois Appellate Court (First: Distriet) (Ap-

pendix B, i#fra pp, 29-30). This unusual circumstance

necessitates that this petition for writ of certiorarf men-

on the Illinois Supreme Court and or The Tlinois Ap

pellate Court (First District).

bd * No cdoetrine of this court rests upon more solid

foundatidns, or. is more fully valued sand. cliefisted,

than that whieh sustains its appellate power oversState

Courts where the ¢ ‘onstitution, laws, and treaties of

the United, States are drawn in question, sand their

authority is nied or.craded, or where t any wight is

ussertod under a state law or authortby in cohtliet with

them.’’ Williams. v. Brafy, 102 U.S. 248, 26 L. Ed.

135, 187. (Rmiphasis added.) : b

16 >

As this Court said j in Monroe Vv. Pape: ; 2\

“ Although ‘the legislation was enacted because of

the conditions that existed in the South at that time,

it is cast in general language and is as applicable to

Illinois as it is to the States whese names were men-

tioned over and again in the debates. It.is no answer

tlt the State has a law which if enforced would give

relief. The federal remedy is supplementary to ‘the

staterremedy, and the latter need not be first sought

and refused before ti federal one ix’ invoked.”’ 365

U.S. 167, 183; 81S. Ct. 478, 4826 (Emphasis: added.) _

The. very reasons why it was necessary for ‘Congress

almost a hundred years ago to pass € ‘Wil Rights leisla-

tion is clear in. the following language from Monroe. x.

Pape:

“The third aim was to provide a federal remedy,

where the. state remedy, though adequate in theory,

was not available mm practice. B60 U.S. 467, 174. (Fin-

phasis added.) °

A kundred years later it is not available in ‘practice itt

Illinois and even more, the [inois Supreme Court afirms

An silence? the penalizing of the petitioner beeause he had

filed a Federal: court Civil Rights ‘case supplementary to

his state tort action.

A litigant, particularly one who has filed a state tort

action and a Federal court Civil Rights ease shpphmentary

to that state tort action—such a litigant Should be able

to insist ‘that “The law ‘of: ‘the U ‘nited States: ca@iot be

evaded by the forms of local prac tice,” nerican Railway

Express Co. v. Le ee, 263 U.S. 19, 21448. Ct. 11, 13. (Em-

phasis added.).. Or can the implications of this Court's

decision in Monroe vy, Pdpe regarding V supplementary to

the state remedy’* be likewise evaded!

y ( a,

: e ° ~

‘

If a state court can thereby, i\ the hame of loeal practice,

‘penalize a litigant because he hag both a state tort action —* e

and a Federal court Civil Right\ casd\. supyfementarys to

that state togt action-—then there as presyuted a significant’. °

Federal constitutional question and\ © \

* «Special and important reson imply a’reach to a

problem beyond the academic or “This .

is especially true where the issuex\nevot rd reach con- /

stitutipnal dimensions, fay then theke comes into phy

regard for the Court's duty to avoit declsion of con- ™~

stitutional issues unless aroidante b\vomes evasion.” '

Rice veSiour City Memorial Park CeX\etery, S49 SUS.

70, 74 TO S.Ct. G14, 616, 99 Lo Rd. $97 (lemphiasis ,

3 \ \: adled.) : ane eet \- BEY.

“Whatever sy iieags the State may yet ‘or those who .

are endeavoring to assert rights that the State. con-

fers, the assertion of Federal rights, whetl plainly and

reasonably made, is vot ta be dofvated wied\r the name : és

of local practice. * > * It the Constitution’: nd laws of .

the United States are to be enforegl, this Court cane

not aceeptoas final the de®ision of the state tribunal

as to what are the facts alleged to give rise td the right

or to tar the ‘aKertion or Woeven ape loeal vrounds,

(Citing authorjty.) Thig ts familiar as te the substan-

tive law and for the same reasons tf is necessary to see .

that local practi ; shall not hy allowed fa yut MHreasor-

able obstacles in 1 se way.’ Da is vy. Weehsler 268 U.S.

99,234.25, 44S. Ct. 13, 14, 68 L.. Wd. 148. (Emphasis ;

added.) e ,

Begarding avother nhase of evasive state court devices, ~

6 ‘

it has been said, , °

ok Pe | ,

“* * © the Supreme Court appeags to Taymen as a ees

final arbiter in’ most easps, but in the few os an ad- s

judiga tor Whose powyrean he avoided through, legal ¢

trickery; “See Fremkrarter, Distribution of Judicial

‘Power Between United States and State Courts (ros) ee

. My ‘ J Qa

. . 4 zg

>> . . . » oh 2

‘?

eee i fe : “ , x

a Corn, L. Q. 499, 503.7" (State Court Evasion of United

States Supreme Court Mandates, 56 Yale Law Journal

574, at page 580 footnete 29.) (1947). It is applicable

here. ° eu

* * but this court will decide the Federal quéstion

- if the necessary effect of the judgment is to deny a

Federal right or immunity specially set up or claimed,

and which, if recognized and enforced, would require,

a judgment different from one resting upon some

ground_of ‘tocal or general law. . And such plainly was

, the effect of the judgment in this case. * * * And that

resalt could not be avoigted merely by silence on the

Federal question * * * The claim of a Federal right or

immunity specially set up from the outset went to’

the very rootaof the case dnd dominated every part of

it. * * * Therefore’a failure to recognize suclt Federal

right or immunity ste * necessarily has thesame effect

as if the claim of Federal right or tmmintty had been

expressly denied.” Chicago, B. é Q. H: Co. ¥. Tinois

a red. Grimwood, 200 U.S. 561, 580-581; 50 1. Ed. 996,

604, 26 S. Ct. 341. (Emphasis added. }

But he maintained at all times that the ordinance

as applied to his conduct violated his wight * * * under

the Federal constitution *,* *.°° Terminiello v. City

of Chicago, 31 US 1, 3. 69S. Ct. 894, 895, 93 L. Bd.

1131. (Emphasis-added.) *

The petitioner @intained at all times that-his oe

court Civil Rights case is supplementary to his state tort

action. The petitioner maintained at all times that, the -

state court could not apply Section 48(1)(¢), Chap, 410,

lil. Rev. Stat. (1961), to dismiss .petitioner’s stafe tort

action just because petitioner also had a ‘Federal court”

WwW! Rights case supplementary to that state tort action.

A decision of a State caurt applying aad enfore-

ing a Stafe statute of gtneral scope against a par-

ticular transaction as to which there was a distinct

and timely insistence that if so applied, the statute

qa ‘

- =

was void under the Federal (Dastitution, necessarily

affirms the validity of the statute as so applied * © °

>The inquiry then is whether the statute is constitu:

tional as applied and enforeed in respect of the. sit-

uation presented, (iting authorities.)’? Fiske v.

State of Kansas, 974/US 380, 385, 47 5S. ('t.°655, 656,

71 L. Bad. 1108, (Biniphasis added.) wet

‘if a xtate court can thus penalize a litigant because he

Gled a Federal court Civil Rights case supplementary to

his state fort action, then there is an important Federal

constitutional question as yet untesolved as to whether or

not the United States Supreme Court can ‘** *.° prevent

the courts of the?several States from tmpatring or fritter-

-ing away the authority of the federal government, by LV

ite.’ (Missouri ex rel. Carey v. Andriano, 188 US 497, 34

L.. Ed. 1012; 1014, 11.8. Ct. 385, ¢ Emphasis added.)

+e *

wer nreg ot concluded from assuming juris-

diction And deciding whether the state court action in

the particular circumstances ixo in effect, an avoidance

of the federakataelit. (Citing authorities in footnote 7.)

A state courtemay nol, in the erercise of its disere-

tion, declinesto entertain a constitutional claim while

fassing upon kindred jasues raised in the same man-

ner.) Williams v. State of Georaia, 349 US 375, 383,

75S. Ct..814, $19, 99 L. Ed. 1164. (F aphasis added.)

Fra “When a State exercises power wholly within the

* + domain of state interest, it is insulated from federal

judicial review. But <uelr insulation is not carried

over when State pour re les used ds an mstrument for

circumventing 4 fe derally protected right.’ Gomiulion

° \. Lightfoot, 364 US 339, 347, ST Sg Ct. 125, 130. (Ban

, phasis added. * ‘

; | IIl.

“There are various ways Im which the validity of

a state statute may be drawnh in question on the ground,

that it is repugnant to the Constitufion @ the United

’

ing a eorstruction to its statutes adverse to such author-

and

- 01)

States. No particular form of words or phrases is

essential, but only that the claim of inygilidity and the

ground therefor be brought to the attention of the state

court with fair precision and in due time, And. if ‘tiie

record as a whole shows ‘either expressly or by cleay

intendment that this was done, the claim is te be? re-

garded as having been adequately presented." People

of State of New York v. Zimmerman? 278 US 63, 67.

#9 §. Ct. 61, 65, 73 1. Kid. 1 S4. (Emphasis added.)

the Court continues, t

“Of course the decision must have been against the

Claim of invalidity, but it is hot necessary that the

ruling shall have been put in direct terms. Tf the nec:

essary effect ‘of the judgme nt has been. to deny the

claim, that is enough.’ 278 US 63, 67. (Emphasis

- added.)

‘But the “question whether a right or privilege,

claimed under Ye GConstitutien or laws of the United

States, was distinctly and sufficiently pleaded and

brought to the notice of a state court, is itself a Fed-

eral question, in’ the decision of avhich this comet“ 7% *

is not concluded by the view taken by the highest court

of the state.) Carter v. Texas, 177 US 442, 447, 44

L. Ed. 839, 841, 2S. Gt OS’. (Mmphasis added.)

“We would, therefore, strain at techniealities to

conclude that the constitutionality af the ardina@ee as

construed and applied to petitioner was not before the

Lllnois courts The record makes clear that petitioner

at all times challenged the eonstitutionality of the

ordinange as construed and applied to him.’? Termini-

ello ve C ity oe ( hic dao, 3387 US 1.6, 69S. Ct. S94, S97,

93 L. Ed 1131. (Emphasis added.)

The petitioner's elaim that Section 48(1)(c) Qhap. 110

the

TIL Rev. Stat. (1P61),-is repugnant to the Constitution and

laws of the United States, cannot be avoided by the

illinois Supreme Court's Order. of involuntary Transfer

~--

* * * that may be regarded as essentially ‘arbitrary or

aomere Terice to prevent the review of a decision upon the

federal question.”’ McCoy v. Sha, 277 US 302, 3038, 48

S. Ch 419, 72 2. Nd. sul. (Emphasis added.) It is quite

clear that 4g Phe piach ofthe statute is in tts application.

-It is that question which the petitioner has brought here.”’

Ternaniello v. City of Chicago, 337 US 1,,6.

era dg j ; a,

“F * * fori the statute(s) * * * are repugnant to

the National Constitution, that judgment could not

properly have been rendered, This court, therefore,

has jurisdiction toe inquire whether any right or privi-

lege protected by the Constitntien of the United States

\ has been withheld or denied by tie judgmeat beléw.”’

Chicago Life lus, Co. vy. Needles, 138 US 574, 28 L. Ed.

1084, 1086, 5 S. Ct. 687,

Ns wis pointed out in Marbyery ve Madison long ago,

“Tf an act of the legislature, repugnant to the con-

stitution, is void, does.it, notwithstandiny its invalid-

ity, bind the courts, and oPlige them to give it effect?

Or, in other words, thoueh it be net law, does it Con-

stitute a rule as operative as if it was a law?) This

Would be‘to overthrow in fact what was established in

theory; and would seem” * * an absurdity too gross

ato be insisted on. * * * [tis emphatically the prevince

, and dity of thesjudicial départment fo say what the

law is.”’ 1 Cranch ((U.S.) 197, 177, 2 L. Ed. 40, 73.

(Emphasis added.) : .

It is self-evident that a state statute repugnant to the

Federal Constitution must be strack down: The Illinois

Svpreme Court in silence affirmed with an Order ef in-

voluntary Transfer the validity of t statute, 48(1)(e), .

which the petitioner drew specifically in question. The

Allinois Appellate *ourt, being a non-constitutional court,

could not decide one way or the other on the validity of

. thesstatute. The petitioner declined to decket his, appeal

- =)

sated

there. And the statute, void and repugnant#emains stand-

ing, as a penalty upon any litigant who files a Federal court

Civil Rights case supplementary to his state tort action.

The [linofs Supreme Court decisions regarding the pre-

sfnting and handling éf Federal vonstitutional questions

are so inconsistent **thatonly an oracle could point out the

proper procedural road,’’ Marino vy. Ragen, 332 US 56).

O68. Under Illinois civil practice in particular the Illinois

Supreme Court decisions regarding Federal qttestions re-

semble each other only in the respect that they are the

many faces of a paradox. A sedrch fails to indicate a case

which resolves these Federal constitutional questions and

problems, particularly in regard to the civil phase of Hii-

nois practice. ‘‘In any event, there is such uncertainty

concerning the * * * remedy as to make it specufative me The

whether the State affords full protection to the federal

rights.”’ Hillsborough Township v. Crowwell, 326 US 620, °

625, 66S. Ct. 445, 449, 90 L. Ed. 358, {Emphasis added.)

Examples: :

‘The question * * * involves a consideration and

construction of the constitution of the United States.

which gives us jurisdiction * * *.°" Groome y. Fre yn

Engineering Co., 374 IM. 113, 117, 28° N.E. 2d 274

(1940). (Emphasis edded.) . -

**Where it is contended * * * that if the court con-

Strues a statute in a certain manner it wouid render

it unconstitutienal, the question is one of the proper

construction of the statute and not the question of its

validity.”” Coggpass Sales Corp. v. National Meneral ,

Co., 388 Til. 281, 284, 57 N.E. 2d 888 (1944). (Ena!

phasis added.)

“This is a direct appeal from a judgement of the

superior court of Cook County. Jurisdiction on direct

appeal is asserted because it is alleged that a consti-

re il question is involved." Turzinski v. Pam, 392

Hl, 471, 64 NEL 2d 726 (1946). (Emphasis sadded.)

Yet he court says, ‘** *.* the’cause is transferred to

the Appellate Court * * "°° 392 TIL 471,473.

“It is further alleged that this also constitutes a

denjal to plaintiffs of the equal protection of the laws,

in violation of the fourteenth amendmenteto the con-

slitution of the United States.’'e Managake v. Schlae- -

ger, 898 Th. 610, 612; 66 NUE. 2d S58 (1946). (Kmpha-

sis added.) Yet the court says, **The-edse involves no

question which gives this court gurisdiction on direct

appeal. * * * The cause is apmersa to the Appellate

Court * * *.°? 393 TIL 610, 615. ek

‘Appellants’ contention is that the ordinance as

applied to the facets violates rights protected by the

State and Federal constitutions * *°*. There being no

jurisdicton, the cause is transferred té the ey pre

Court * °°." Dube v. Allman, 396 Hl. 470, 476, 72

N.B. 2d 180. (1947). (Emphasis added.)

“Appellant contends that by such action the trial

court has * * * wolated * * * the coystitution of the

Umted States * * *.°° Shaw v. Shaw, 397 Til.

118, 119, 73 NE. 2d 422 (1947). (Emphasis added.)

Yet the court says, ‘*Such issues do not present a ques-

tion of construction of the Federal constitution. such

as gives this court jurisdiction on direct appeal.

The cause is transferred to the Aypellate Cour

397 Til. 118, 120. e ~

“* * * appellant filed a motion to set aside the order

** * alleging that the order * * * had denied fier both

due process and equal protection of the law, as guar-

anteed by both the Federal and State constitutions

** * Itis * * * contended ‘that this court has juris-

diution on direct review because a construction of the

Federal and State constitutions is involved.’’ Moore

v. Moyle, 399 TP 230, 231, 77 NE. 2d 651 (1948). (Em

phasis added.) Yet tlie court says, ‘‘The issue is rather

‘a eet.

| | :

oe ae

‘ the correctness or incorrgetness of the order and judg-

ment_of the trial court. Of this we have no jurisdic-

tion on direct appeal. The cause is therefore trans-

ferred to the Appellate Court * * °."" 899 TIL, 23808282.

‘*Appellant asserts the action of the trial court de-

prives him of his. constitutional rights, specifically in

Violation of * * * the fifth and fourteenth am&ndments

of the constitution of the, United States * * *, He does

not seriously argue this position.”"* The Chicago Bar

' Association vy. Kellogg, 401 Ul. 375, 380, 82 N.E. 2d

639 (1948). (Emphasis added.) Yet the.court says,

{‘Where it is claimed that the enforeement of the%judg-

ment or decree will deprive one against whgm it is -

rendered of some constitutional right, no constitutiona!

question is involyed, because it only questions the.

validity of the judgment or decree, ** * the cause will

be transferred to the Appellate Court * * *.’" 401 Ill.

373, 381. (Emphasis added.)

The fitigant “* * * proseeutes ” a direct ap-

peal to this ceurt upon the theory that the due-

process clauses of the State and = Fedaral eon-

stitutions are involved.”’ Maupin ve Manpin, 403

Ill. 316, 318, 86 N.E. 2d 206 (1949). (Emphasis added.)

- But the court says, ‘‘The question in such a case is

merely 4he validity of the jidgment or decree, and not

a constitutional question.’’ 403 Ill. 316, 319. (Empha-

sis added.) and then the court says, **The cause is

transferred to the Appellate Court * *'*.'? 408 UL

316, 320. (Emphasis added.) :

» “Ttis required that when a case is wrongly appealed

* to this court, it shall be the duty ef this court to transe—

fer the appeal to the Appellate Court. (Citing LL Rev.

Statufes.) No question, however, oth®r than the con-

stitutional objection is presented for deciston. Under

such circumstances noAeful purpose could be served

by transferring such & cause*to the Appellate Court,

and a dismissal a properly be had. (Citing De La

Cour v. De La Cour, 363 Ill. 545.) Accordingly, this

appeal is dismissed.’’' Teren v. City of “Chicago, 413

’

HN. 14, 45, Tos NUL vd a6 (182). C&mphiasis

raldeed.)

“The effect of the lilinois law igte deny such a right

Stute law" * ?. This is suMcient to confer jurisdiction

over the appert,’ * 6932 Ras ft Chestar ut St, Cerp. v.

Reraer, 3 We. 2d 32, 34, 119 N.Eo 2d 757 19 44). (Em

phasis added.)

eH 8 * tho law is elenr that in-absence of constitu.

tional or statutory provisions limiting jurisdiction to

Feder courts, State courts have anthority to enforce

rights under the constitution or statutes ef the Mn@e d

Vtates.° Reidelherarr BiState Development, & TH:

e151 194.153 N.E.S 4972 (1956). (Kinph: isis ndded LL |

~ Tt is establishv that a decision sustaining the con-

stitutionality of a statute is not decisive of its validity

avainst subsequent attacks Wen different vrounds,

where the court has net heretofore considered, and

prassed en E}ye ~puen ote constitutienn| a- ype pre

sented.”* Naras v. Suell, 11 HN. 2d 233, 2: dae ‘N. BE. teen

ars | 4G (1957). ————————

oa) uy nebraetton ot the Federal constitutional pre

sion was therefore in issue in the order of dismissal

entered in theptr: tal eaurt. dt as from that order of

dismissal " at “this appeal is new taken? The City of

Detroit vy. Gould. 12 Til. 3a OOF. +t} Fe 146 NE. 2) 61

(1957). - eibanlh AYE lea, ) The courte then SAVS,

“This cause comes to this court upon a constifutional

Connty is. therefore, recersed and the ease ts re.

sanded to that court with direétions te pre®eed in

conformity with this opinion, 12 Til. 2d 897, NOL

(Finphasis added.)

“Tt is also well settled that State power cannot be

used as an instrament fo deprive any person of a riaht

preter fe Thos the B ederal constitution. CC iting author.

ities.) Deerfield Park District ve Progress Develop-

ment Corp, 22 Hh 2d 1326 137, 174 NAG. 2d 850° (1961).

° :

bd a

‘Defendants question our jurisdiction on direct

appeal. They contend that plaintiif(s) did not, Aprop-

erly raise the issue of violation of the due-pro« “éss\ and

equal- protection clauses of the Federal and State con-

stitutions.’ Howard v. Lawton, 22 ML. 2d 831, 333,

. in N.E. ad O06 (1961). rans re ack ded.) And the

ther eisa ‘fairly debatable question Hit is proper

‘for the cotrt to consider and pass abek } its validity

when that issue has been raised in the ¢omplaint. We

are of the opinion that direct appeal Wes to this court

on constitutional greunds * * *,"" 2 Tl. 2d 331, 334.

In niore recent years the “Illinois Supreme Court has

ente

‘red an Order of inveluntary Transfer in silenee, re-

moving and obliterating. the Fede ral constitutional ques-

tions ‘without a hearing, without/an opinion, without a

reason-—eliminating the Federal’ constitutional questions

even sua sponte on occasion,

| CONCLUSION.

For the reasons above stated it is respectfully submitted

that the Petition for a writ of tertiorari he granted. //

Respettfully submitted,

Perer S. Sarenas,

30 No. LaSalle Street,

~ Chieago 2, Ilip6is, ;

: Central Wegrs ‘

Attoy 7) for Petitioner.

2 Se 2 -

“3

Sueeman HH. Skobnxick,

: + |

°.

« ' APPENDIX A.

i > UNITED STATES OF AMERICA

STATE oF TRLINGIS /

‘ ; Ss. e

SUPREME 4 OURT |

At a Teri of the Sup: ‘come Court, he dun and held in

Springfield, wi Monday, the tweltth day of November ww

the wear of our Lord, one thousand nine dundred and

Sixt) two, i thin and for the State of Hlinorwg F

Presextr: Roy J. Sourispers, Je, Carer Justice

Justice Joseru KE. Daisy Jostick Wat-rer V. SCHAEFER

Justice Harry Bo Hersury Justice Ray [ Kingpin

Justice Bynon Oh blouse Jestice Roperr C. UNpERWwoop

“Wuiaiam G. Crank, Arrorney GeneraL

Ropest G.Miney, Marsuan

Arrest; Mrs. Banue Bexoamin Srancy, Clerk

BE IT REMEMBERED, that. towit: on the 18th day

of November, AD, 1962, the same being one of the days

of the term of Court aferesaid, the foliowing proceedings

were, by ssid Cougt, had amd entered of reeord, to-wit:

*»

: pemeren Appeal from

No. STa85 Vs. i! Superior Court

Cuances To Martix; Artavr Linvy Cook County

wp Criarces R, Pernico, 62 S 204 a

Appellees

Ani now, on this day, the Court having diligently eX-

amined and inspected the record aygl proceedings afore-

said as ‘well as the briefs and-argument filed herein, to-

gether with the motion by/appellees, and now being fully

advised in the preynises ix of the opinion, find, and ad-’

‘judge that this ease was wrongfully appealed to this Cougs.

° , ‘ _«@

‘ .

“a

fbr

THEREFORE, it is ordered by the Court that this

ease be and the same ‘is, hereby transferred to the Appel-

late Court for the First District of the’ State. of Llinois,

and the Clerk of this Court is directed to trausnut the

transcript and files herein with the order of this: transfer

‘to the Clerk of said Appellate Court,

And it is further ordered by the Court that the said

appellees recover of and from the, said appeilant costs by

theia in this belfalf expended, to be taxed, and that they

have execution therefor.

_ I, MRS. EARLE BENJAMIN SEARCY, Clerk of the

Supreme Court of the State of Illinois and keeper of thie

‘records, files and Seal thereof, do hereby certify that the

- foregoing is a true’ copy of “the tinal order of the said

Supreme Court inthe above entitled cause of record in my p

offica.

.IN WITNESS WHEREOF, | have hereunto

subscribed my yame and affixed the Seal

of said Court this 4th day of December,

A.D. 1962.

Mrs. Earle Beajamin Searcy

-. * Clerk,

Supreme Court of the State of Mlinois

‘ ‘ »

: 2

a : |

29 .

? . 4 .

+ APPENDIX.B. ‘

% ° ‘yr ‘ ergs Le ‘. ‘ ‘ $ ‘

NITED STATES OF AMERICA

Srare or Maayow fe. | :

‘ Supreme Cover \ - : aioe

: “

Atea Tern of the Supreme Court, begun and held in

Springfield, on Monday, the twelfth daw of Noveanber im

Pthe year of OW Lord, one lhousand nine hinved re d and

sixty-two, withen and fork the Slate of Lilinors, ~ wie

- Present: Rex J. Sovrissera, Jr, Cin y Justice

Jestrick Joseru KB. Dainy Jesrice Watrer Vo ScHakrEer

* Justice Harry B. Hensury ° Jefncr Ray LL Ruinenren

Justice Brrox O, House Fesrice Rosnerr CC. UNbrRwoop

Wintiam G, Crank, Arrorney GexkeRAL

Rowerr G. Miney. Marsa

Arrest: Mrs. Bante Bexoamin Searcy, Clerk

BE IT REMEMBERED, that’ to wit: on the 27th day

of November, A, D. 1962, the same being ene of the days -

of the term. of Court aforesaid, the following procefdings

were, by said Court, had’ and entered of record, to-wit:

_° SILER MAN Hh. SKkOLNICK, : x F }

olypellant [ \ppeal from

No, + 37883 ms. % ‘ Superior ®’ourt

‘ Craruek To Manriys Awruve Lruy f eok County

AND Cuanrces R. Penrice, H2 S 204

\ e Ap pe Hees

Arid now, on this day the Court having duly considered

“the motion hy appellant for stay of inandate pending dis-

position of pe titfon for writ of certiorari in the Supreme

ce ourt-of the Wnited States, and being now fully “advised

/ of and concerning the. pramisess

/ IT IS HEREBY ORDERED that the motion hy appel/

/ lant for stay of mnaanglate pendiag disposition of petition

for writ of certiorari in the Supreme C ourt of the U nited .

States,be, and the same js, denied.

30 e

I, MRS. | EARLE BENJAMIN SEARCY, Clerk of the

Supreme Courtoof the State of Hlinois and keeper of fhe

records, files and Seal thereof, do hereby ceftify that the

foregoing is a true copy of‘an order of the said Supreme

Court in the above entitled cause of record in my office.

IN WITNESS WHEREOF, I have hergunto

. subscribed my name and affixed the Seal

of said Court this ith ‘Way of February,

_ A.D. 1963. +f

Spee ) 4 Mrs. Earle Benjamin Searcy

Ps Clerk,

Sapreme Court of the State of Illinois.

7] .

’ ew

‘ .

. a)

t °

® ’

”

> i

a ee

3 :

°. =

. '

» .-

fo (

: x x

.-—

‘

’

. =

tte,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.