# Petition for Writ of Certiorari — Minker v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0820%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 372 U.S. 953 ## 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, ee 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 e ° oa . ° . a ‘ ° ° : . ~ . e ° _ - ° * a 3 > es > J , ’ — . : — - av na ro) a ° 8 Lae . ° o “4 ‘ > ® ° ° oO t z . “” ° - ° = ke a . . ~ a = ; P - ‘ s R . x : a! - ‘ ° ' ‘ ‘ ' eo * “ » & ™ . é , * * 4 . ° . . ° °. F ° * 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 x 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 8 _IN THE 4 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. ee > 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 a wv | + Ww Q s . e 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. °% f- * * . “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. ° ° * a =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 7] 1) . . 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). - I. 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 o b 1s 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 | | : 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 - a? ’ . HN. 14, 45, Tos NUL vd a6 (182). C&mphiasis raldeed.) “The effect of the lilinois law igte deny such a right © 8 A confer is thus created between Federal and 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 question © *.*. The order of the cireuit court of ¢ ‘ook 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). © (Emphasis added.) : ° : ° . 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. v For the reasons above stated it is respectfully submitted that the Petition for a writ of tertiorari he granted. // 6. Respettfully submitted, a Perer S. Sarenas, 30 No. LaSalle Street, ~ Chieago 2, Ilip6is, ; : Central Wegrs ‘ Attoy 7) for Petitioner. 2 Se 2 - tS “3 ft & S Sueeman HH. Skobnxick, : + | °. 27 « ' 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 = 40 fbr THEREFORE, it is ordered by the Court that this 28 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 ey ‘ ‘ » : 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. f @. 7] . ’ ew ‘ . ~ o . a) . t ° ® ’ *, . . S) ” > i g a ee 3 : . °. = o . ' » .- eo fo ( ° : x x . .-— ? ‘ e . ve . ’ ° . . = . « x tte, ar --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0820%3A2. Public record. Not legal advice.