Brief of Respondent in Opposition to Petition for Certiorari — Au v. Commissioner

\ LIBRA

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Pe

JASPER LEE ROBINSON, by His Father gad Wext Friend,

“~:~. Petitioner,

ILLINOIS HIGH SCHOOL ASSOCIATION, individually and as

Joun @. Povsr, |

=, 1058. LaSalle Street,

/* Chicago, Ilincis 60603, -

(" . Attorney for Respondents.

\

a

Pousr & Burxmzy, -

Joux G. Povst, j

Jznome N. Groark, <~ —

Of Counsel. |

Midwest Law Printing Co., 326 N. Michigan Ave., Chicago

aie Telephone: Financial - 6-3988

PAGE

(a) Opinions below ..................... aw | - 1

(b) Jurisdiction (alleged grounds for) 2... 2°

(c) Questions presented for review ...... ee. 3

(d) Statement of. the case ....... Punk 1.

(e) Argument ee ea a ae 9

, (f) Conclusion .............-..----- ane seseceeeeedebennngessessses coeaten 20

Taste Or Cases

Biagi v. O’Connor, 18 Ill: 2d 238, 240 ....... 12.

Black v. Cutter Laboratories, Cal. 1956, 76, S. Ct. 824, |

351 U.S. 292, 100 L. Ed. 1188, rehearing denied 77

S. Ct. 21, 352 U.S. 859. 1 L. Ed. 2nd 69 ........... ey ag |

Bostedo v. Board of Trade, 227 i Eee 14

Dinoffria v. International Brotherhood of Teamsters

& Chauffeurs Local Union No. 179, 399 Ill. 304, 306-

308, 77 N.E. 2nd 661, Cert. denied 335 U.S. 815, 93

L. Bd. 5p & Ct He 12

Dixon v: Duffy, 1952, 3 . Ct. 193, 344 U.S. 143, 97

a” Ed. 153 Save ener ips an 2, 11

Engel v. Walsh, 258 Ill. 98, 103 ian manne 14 .

Griffin v. Co. School Bd. ‘of Prince Edw ard Co., 12

L. Ed. 2nd 256 (1963) . sail iet santas SNOW RE RLY aaa 18, 19

*

\

by

.)

7

- Hiawasee River Power Co. vy. Carolina-Tennessee —

Power Co., 1920, 40 S. Ct. 330, 22 U.S. 341, 64

eee RS. MEE eis aes “WN Skene 2

Lllinois Conatitation, ‘Article VIII, Section 1 ................ - 18

Illinois Revised Statutes, 1963:

.

Chapter 110 Section. 8 Beate Si A A renee eae er ce! 3

_ Chapter 122 Sections 27-5 through 27-9 ............. lsc 18

Morrison v. Roberts, 1938, 183 Okla. 359, ‘361, 82 P.

ik OS, DO 12

Moyer v. Board of Education (1945) 391 Ill. 156 .... 18, 19

ORishome High School Athletic As@eiation, et al v.

Bray, et al, CA 10th Cire., 321 F. 2d 269, 273 .... 2, 10

People: v. Board of Trade, 80 TI. 134 ccc 14

Seaboard Airline ‘Ry. .v. Duvall, N.C. 1912, 32 S. Ct.

790, 225 US. 477, 56 L. Ed. UT nny neem, 2y'Uy 12

‘State ex rel Ohio High School Athletic Association, *

_ et al v. Judges of The Court of Common Pleas of

‘Stark County, 1962, 173 Ohio St. 239, 181 N.E.

.2ndk 261, 266 : & 15

“State of Indiana on relation of The Indiana High

School Athletic Association, et al'v. Lawrence Cir-

cuit Court of Lawrence County, et al. 1959, 240

‘Ind. 114, 162 N.E. ; & % . eee isucunteabeads 12, 13

‘United States Code, Title 28, Section 1 257(3) <ats 2

~ Wilson v. Board of Education, 233 Hl. 464, 471

\

IN THE

- Gupreme Court ot the Bntted States

Octoser Term, A.D. 1964

No.

JASPER LEE ROBINSON, by His Father and Next Friend,

WILLIE ROBINSON,

Petitioner,

vs.

ILLINOIS HIGH SCHOOL ASSOCIATION, individually and as

Board of Directors, HARRY L. FITZHUGH, JOSEPH D. DIX-

ON, CARL E. NATION, ROBERT C. GRANT, WALLACE H.

FRISTOE, JAMES W. LEWIS, and ALBERT WILLIS, indi-

vidually and as Executive Secretary, BOARD OF EDUCA-

TION EN AND FOR THE SCHOOL DISTRICT OF THE CITY

OF ROCKFORD, NO. 205, WINNEBAGO COUNTY, ILLI-

ROIS, | 2

Respondents.

Brief of Respondents Illinois High School Association,

_ as Board of. Directors thereof and individually, Harry‘

L. Fitzhugh, Joseph D. Dixon, Carl E. Nation, Robert

C. ‘Grant, Wallace H. Fristoe, James W. Lewis, and

Albert Willis, individually and as Executive Secretary

thereof, in Opposition to Petition for Writ of Certiorari

, to, the — Court of Mllingis, Second District.

(a)

OPINION BELOW.

/ —

7

The opinion of the Appellate Court of Illinois, 2nd Dis-

_ trict, Ist Division, is,correetly set forth in the ‘Appendix

(A) to the Petition for Writ of -Certiorari. \

a t

(by

JURISDICTION.

_— A ©

The petitioner hax chosen 28 U.S.C. See. '257(3) as

his vehiele in attempting to invoke this Court’s jurisdic-

tion, (Petition, p. 2). There is no meeting of the juris

dictional requirements of said statute in this ease, namely

«°° * where right.’ title. privilege “or immunity is

speeially set up or claimed under the Constitution,

treaties or statutes of. or commission held ar, au-

thority exercised under, the United States.” (June

25, 1948, C. 646, 62 Stat. 929). a

The opinion, of the Appellate Court ‘of Illinois ( Peti-

tion, Appendis\A) sets forth a determination based solely

upon non-federal grounds, namely the reversal under ap-

plicable state law of an attempt of-a state court to sub-

stitute its decision for the decision of the hoard of a

voluntary association, in the absence of fraud. collusion

"or: arbitrary conduct on the part of that voluntary usko-"

ciation. No federal questions were properly raised ar con-

sidered, paxxed upen or present in the courts ‘helow.The

federal courts do not take jurisdiction where no federal

_ question is presented. A high school association gase to

this effect is Oklahoma High School Athletic Association,

et al vy. Bray,’et al, CA 10th Cire., 321 F. 2nd 269, 273.

Further, thix Court has stated, without variance, that

it will not issue a writ of certiorari to a reviewing court

of a state where the deeisign of the state court’ was

based upon, non-federal, grounds. Seaboard Airline =

v. Duvall, N.C. 1912. 32 S. Ct. 790, 225 U.S. 477,

L. Ed. 1171: Hidweeee River Power Co.-~. Carolina- Ae

nessee Power Co., 1920. 40 S. Ct. 330, 252 U.S . dal, 4

a

L. Ed. 601; Dizon v. Duffy, 1952, 73 S. Ct. 193, 344 US.

143, 97 L. Ed. 153; Black v: Cutter. Laboratories, Cal.

1956, 76 S. Ct. 824, 351 U.S. 292, 100 L. Ed. 1188, re-

henthlg Sethe TI OS, SOUS, 10, 1-1. He. Sad @

(c)

QUESTIONS PRESENTED FOR REVIEW.

The Respondents respectfully state that no question

exists which this Court should review. The issue is wheth-

er or not grounds exist for the issuance of the Writ

of Certiorari for which petitioner asks; the nature of this

case being as follows:

A ruling was rendered ‘by the Board of Directors of

the lilinois High School Association (after three hearings)

to the effect that Petitioner had passed the age of eligi-

bility for Illinois High Schoo) Association basketball com-

petition. The Circuit Court of Winnebago County enjoined.

interested parties from recognizing or effectuating this

ruling. The Illinois Appellate Court unanimously revers-

ed the Cireuit Court purely on points of Illinvis state law,

and issued its mandate. that Petitioner’s alleged cause of

action be dismissed. The Lilinois Supreme Court refused

Elle the Petition for Leave to Appeal. The Circuit Court-then

dismissed the cause pursuant to the mandate of the IIli-

nois Appellate Court. (The Petitioner played out the sea-

son (1962-1963) while the Circuit Court's injunction was

being appealed to the Illinois Appellate Court, sintve there

is provision under Illinois practice for stay. of only tem-

porary injunctions. (Chapter 110, Section 101.31, Ill. Rev.

Stats.). The Petitioner then made the application now at

issue.

-__

(d)

STATEMENT OF THE CASE.

The Illinois High School Association is a voluntary as-

sociation (Trial Ct. Reeord 278, 279), organized so that ~

no school ‘was required to join it, not financed by public

taxes, and not-interfering in any way with the lawful or: -

‘other purposes and functions of the Illinois Superintendent

of Publie TInstruetion and his Office, the State of Illinois,

any Board ‘of Education or Publie or Municipal party,

and said association.is not created by statute. The Illi-

nois High Sehool Association has adopted a constitution

_ and. by-laws by which it and its members are governed,

said constitution and by-laws providing for, among. other

things, management of interscholastie athletic activities

in the State, ‘of Ilfinois on behalf of high schools which

are members OT the association (Tr. Ct. Reeord 4, 279;

Defs. Ex. 15, R. 281, 282.283). Auburn Senior High School

is a member of tlie I}linois High School Association. Jasper

Lee Robinson>is a student at AuburnSenior High School

(Tr. Ct. Reeord 3). Auburn Senior High School deter-

mined that Jasper, ‘Lee Robinson was ineligible to compete

in interscholastic ‘athletic contests on behalf of said high

school according to the rules, by-laws, and cohstitution

of the Illinois High School Association; and ‘Auburn Sen- |

ior High School conveyed this determination to the asso-

‘ciation. The Association after review ing the evidence in

. three hearings, confirmed the determination of the Auburn

Senior High School by also holding that the plaintiff was

over age and ineligible by virtue of having passed his

nineteenth birthday before December 11, 1962 (Tr. Ct

Record 49). It is from this declaration that the petition

3

of Jasper Lee Robinson for an injunction against the

Illinois High School Association emanated, he claiming

that he was not past the age of eligibility-and that the

Association’s determination was arbitrary, capricious and

prejudicial (Tr. Ct. Record 5). The Court found that the

Association’s. determination was not arbitrary, capricious,

wrongful or fraudulent, but found of its own volition

what it considered to be the plaintiff’s date of birth and

proceeded with the injunction (Tr. Ct: Reoord 79-87).

The evidence was conflicting. The most significant items

were as follows: fe Sa, \

1. The bi latte provide that if a boy has reached age

-19 before December 11th he ‘is ineligible after De-

‘cember 1ith. Therefore, a birtNday Lefore December

11, 1943 would render a person with such a birth-

day ineligible as of December 11th, 1962. (Defs. oma

15, R. 281, 282-283).

2. Defendants’ Exhibit No. 16 is a-certified copy of the

application of Jasper Lee Robinson for a driver’s

license to the State of Illinois, signed by Jasper Lee

“Robinson, and showing Jasper Lee Rébinson’s date

of birth to be December 24, 1942. (Def. Ex. 16, R.

298, 299-300). This application is over the plaintiff's

own signature (Tr. Ct. Reeord 299).

3. = letters from the U. S. Navy (Def. Ex. 10, R.

, 259; Def. Ex. 11, R. 253, 259) were used ‘by

sonatas to expedite the case instead of waiting.

for certified copies of records. They clearly show:

December 24, 1942 as the birth date (Tr. Ct. Record

. 259). (Note: Since Willie Robinson (father of Jasper

Lee) entered the Navy in December 21, 1943 apd

according to these records (which the Navy has no ~~

—$—

‘interest in falsifying), gave the information on De-

cemher 21, 1943, it would be impossible for the plain-

tiff to be’ born on December 24, 1943 and to have

been reported to the Navy three days before.) .

. The triai court’s admitted study in open court of the

photostatie copy of the original birth certificate be-

fore amendment—and that it shows December 2, 1943

' (Def. Ex. 9, R. 250). (Note: The plaintiff’s own at-

torney- in 1962, John Kinley, saw nothing irregular

about this certificate (Tr. Ct. R. 272). Yet. the trial

court coneluded that he saw a spot that. ‘‘could”

once have heen a 24.(Tr. Ct. Record 267-270), and

permitted the witness Kinley and the witness Wveth

to answer, over objection, a hearsay answer to the

fact that some other person “ thought” so also (Tr.

Ct. Reeord 274-275) ).

. Defendants’ Exhibits 3, 4, 5; being Progressive School .

Registers bear. the December 24, 1942 birth date

(Def. Ex. 3, R. 218, 228; Def. Ex. 4, R. 219, 228;

Def. Ex. 3, R. 220, 228).

. Testimony of Harold Nelson the high school vali

that the school records were corrected to read as to

birth date December 2, 1943 f.om the original birth

certificate (Tr. Ct. Record 210-213) and Defendants’ -

Exhibit 2 offered and received. in verification of the

change (Def. Ex. 2, R. 216, 217).

. Defendants’ Exhibit No. 8 being siiae records of

the Kenrock Commapity Center show the birth date.

Ss - as December 9, 1942 (Def. Ex. 8. R. 240, 241).

. Defendants’ Exhibit No. 7 indicates that the plaintiff

apparently gave December 24, 1944 as a birth date

10.

11.

13.

x

to the’ Kenrock Community Center as a method of

pais eligibility to play in the Bantam Boys

League (Def. Ex. 7, R. 236, 241). .

Defendants’ ‘Exhibit No. 13 was submitted in evi- |

dence for the trial court’s perusal relative to the

admissibility in evidence of the so-called ‘*family”

bible actually the property of a woman not related

by blood or affinity to Jasper Lee Robinson’ (Def.

Ex. 13, R. 261, 262).

Testimony of Willie ‘Robinson that the date of birth

was December 24, 1943. (Tr. Ct. Record 155).

The “ Amended” birth certificate of plaintiff (which

formerly before change gave December 2, 1943 as

the birth date until amended on the unsupported af-

fidavit of Willie Robinson, after change ae Willie

Robinson’s Affidavit-gives date as December 23, 1943. ~

(Offered and objected to but never admitted; Plain-

tiff's Exhibit 2.) (PL Ex. 2, R. 137).

Testimony of Bertha. Swopschire and Lois Hughes

(Tr. Ct. Reeord 183, 191) that December 24, 1943

‘was the birth date.:

=

Pupil cumulative a (Pl. Ex. 3, R. 142, 144).

(Bears the date of December 24, 1943, and the code

‘“STBC” indicating a check against the state birth

certificate; made March 6, 1956 (Ir. Ct. Record 148,

144). The said verification was necessarily incor-

rect because in March ‘of 1956, the state birth cer-

tificate showed December 2, 1943, as the date of

birth, as is evidenced by Plaintiff's Exhibit 2 and

‘ Defendants’ Exhibit 2. the Amended Birth Certifi-

cate and Willie Robinson’: s affidavi it that the orig: inal

‘14.

15.

° . * | —8—

showed December 2, 1943, said affidavit made to

change the record in 1962. (Pl. Ex. 2. R. 137; Def.

Ex. 2, R. 216, 217.))

Rockford Boys Club Association Record Card. (PI.

Ex. 4, R. 149, 152). This item was supposedly veri-

fied from Plaintiff's. Exhibit No. 3 as to birth date.

(Tr. Ct. Ree. 150; Pl. Ex. 3, R. 142, 144.)

Page of bible, written Arella Eason. (Pl. Ex. 5, R.

161, 163.)

©)

a

(e)

_ ARGUMENT.

[Note Re Scope of Argument: We are conforming the ar-

gument to elements relevant in determining whether a ques-

tion-is pres: ated which this court should decide undér federal

law. In so doing we! wish to state that we do not intend

by silence to accept the propriety or truth of the irrelevant,

not-in-the-record material,.comments thereon and innuendos

contained. in Petitioner’s brief, and in particular the fol-

lowing:

1. The local newspaper quotations (which are the product

of an attempted intimidation of the Association by

one newspaper in particular).

2.. The reckless use of race asa purported issue. (The

majority of the Auburn High team was colored. Color

. played no part in this case). ]

> ae

THIS COURT SHOULD NOT ISSUE A WRIT OF CERTIO-

RARI. TO THE APPELLATE COURT OF ILLINOIS, SINCE

THE DECISION OF THE APPELLATE COURT DID NOT

DECIDE ANY FEDERAL QUESTION BUT RESTED SOLELY

AND. ENTiRELY UPON. NON-FEDERAL GROUNDS.

‘A. There “Are No Federal Grounds Involved In This

Case. - :

The sole question presented, for review to the Appellate

Court of Illinois was whether a court of The State of. IIli-

nois should substitute its decision for the determination

of a voluntary association in the absence of fraud, collu-

sion or arbitrary conduct ‘( Petition for Writ of Certiorari,

oe

e

~— 1

Appendix A, pp. 3a., 8a., 9a., 1la.). The petitioner most

artfully omits, in his petition, the full statement by The

Appellate Court of Illinois (Petition, p. 8). The Appellate

Court of Illinois did not determine the petitioner’s age but

only made a determination that his age was greater than |

that of eligibility to compete in interscholastic competition.

There was no federal question passed upon by The Appel-

late Court of Illinois, nor were there any federal questions

raised in the lower court, the Appellate Court, or in sub-

sequent steps taken by the Petitioner. A precedent in the

case of a high school Association to this effect. is Okla-

homa High School Athletic Association, et al v. Bray, et al.,

C.A. 10th Cire., 321 F, 2nd 269, 273.

The mere statement that alleged issues are federal issues

does not make them such. The petitioner mentions the “right.

_ to vote, the right to receive Social Security, the right to

participation in the affairs of life as eith:r a minor or an

adult, based on the date of birth, service in the Armed

Forces * * *” (Petition, p. 10). None of these items were

affected whatsoever, either by ‘the decision of the trial court

or by the decision of the Appellate Court of Illinois. Those

determinations would not be res judicata as to any of the

matters specified by the petitioner. The issue before the

trial court and reviewing court was not what the peti-

tionér’s dete of birth is, but whether the petitioner was

ineligible to compete in activities governed by the: Illinois

High Schoo] Association within the constitutiom and by-

laws of thet.organization. Even though the trial court took

it upon itself io determine the petitioner’s birth date, any ©

‘person or agency not a party to this suit would be free to

make: its own determination. (Res -judicata .is effected

only in a judicial determination between. the same parties of

the same issues.) ©

—11—

B.. Sein: tt Didieia teen Witenes Me

_ Appellate Court Of. Illinois Decided The Matter On

_ .. Non-Federal Grounds, This Court Will Not Issue

Its’ Writ Of Certiorari To The Appellate Court Of -

Illinois.

_1. It is a well established and basic principle that this

Court will not issue its writ of certiorari to-a state court

- ° where the state court judgment was decided upon non-fed-.

eral grounds, notwithstanding the possibility of the presence

of federal grounds. Seaboard Airline Ry v. Duvall, NC 1912,

SS. Ct: 790, 225 U.S. 477, 56 L. Ed. 1171;.Diron v. Duf-

fy, 1952, 73 S. Ct. 193, 344 U.S. 143, 97 L. Ed. 153; Black:

v. Cutter. Laboratories, Cal. 1956, 76 S. Ct. 994: 351 U.S.

292, 100 L= Ed. 1188, rehearing denied 77 S..Ct. 21, 352

U.S. 859, 1 L. Ed. 2nd 69. Even where the state court

passed upon federal grounds which were properly raised,

this court will not issue its writ of certiorari to the state

court where there were adequate non-federal grounds of

decision upon which the judgment of the state court rests.

Seaboard Airline ‘Ry v. Duvall, NC’ 1912, 32 S. Ct. 790, |.

225 U.S. 477, 56 L. Ed. 1171; Diron v. Duffy, 1952, 73 S. Ct.

193, 344 U.S. 143, 97 L. Ed. 153; Black v. Cutter Labora-

tories, Cal. 1956, 76S. Ct. 824, 351_U.S. 292, 100 L. Ed.

. 1188. rehearing denied 77S. Ct. 21, 352 U.S. 859, 1 L. Ed.

Qn 69. ;

2. The alleged federal iitiin were not properly

raised in the Trial Court or the Appellate Court. The legal.

issue in this case is the same as it was in the trial court, ~

namely whether the decision of the Association was or’ was.

not fraudulently, collusively or arbitrarily wrong (not

merely would the trial .court disagree with its finding on

the factual question as a matter of the simple weight

of the evidence). Nothing new was added. The Appellate —

Court reversed the case on the basis that the trial. court

pee. , tee

had incorrectly applied the law. It did not cite or utilize

any constitutional question. Therefore, no constitutional

question arises by reason of the judgment of the Appel-

late Court of Illinois, its decision being confined solely to

state issues. Biagi v. O'Connor, 18 Ill. Ind 238, 240; Dinof-

fria v. International Brotherhood of Teamsters & Chauffeurs

Local Union No. 179, 399 Ill. 304, 306-308, 77 N.E. 2nd 661,

cert. denied 335 U.S. 815, 93 L. Ed. 370, 69 S. Ct. 33.

The petitioner is attempting to use a device to wedge

this case into the Supreme Court on supposed “constitu-

tional questions.” There are no such questions in this case.

If there were they (would have) existed as soon as the

Association made its decision, and should have been raised

in the trial court. The record discloses that no such ques-

tion was made, argued, or decided in the trial court nor

does any constitutional question arise from the judgment

of the Appellate Court.

It is incumbent upon the petitioner to show that a

federal question is necessarily involved and that it was

properly presented. Seaboard Airline Ry v. Duvall, NC

1912, 32 S. Ct. 790, 225 U.S. 477, 96 L. Ed. 1171. This, the

petitioner has not done as is evident from the record.

C. The Decision Of The Appellate Court Of Tilinois Was

Based Upon Well-Established Non-Federal Princi-

ples Followed Generally Throughout The States.

1. The right to a public school education does not

-jnclude a right to compete in intorscholastie activities.

Wilson v. Board of Education, 233 Ml. 464, 471; State

of Indiana on relation, ete. V. Lawrence Circuit Ct. etc.,

1959, 240 Ind. 114, 162 N.E. 2nd 250, 209. Morrison v. Rob-

erts, 1938, 183 Okla. 359, 361; 82 P. 2nd 1023, 1024-1020.

a

In a recent decision, the Supreme Court of Indiana, in

State of Indiana on relation of the Indiana High School

Athletic Association, et al. v. Lawrence Circuit Court of

Lawrence County, Indiana, et al.. 1959, 240 Ind. 114, 162

N.E. 2nd 250, 255, firmly held that a right to an education

does not grant a person a right to compete in interscholastie

athletics. The court said (page 290) :

“We believe the foregoing authorities are decisive

of the question before us and that the right of the

plaintiffs under the Indiana constitution and statutes

to vo to the publie schools and receive education and

training cannot properly be said to include interscho-

lastie sports and games, viz.: interschool basketball

as may be engaged in between picked teams of the

various public, private and parochial schools, consti-

tuting the membership of relator athletic association.

“As the rule and order of the Indiana High School

Athletic Association in question have not been shown

to be invalid in any respect, said association is en-

titled to enforce the same as against its members in-

cluding the Shields High School without interference

by the courts, and it necessarily follows that respond-

ent court is without jurisdiction to entertain the in-

junction suit brought by plaintiffs attempting to re-

strain said athletic association and the other defendants

therein.”

Tilinois has also held in Wilson v. Board of Education,

93% Tl]. 464, 471, with respect to a Chicago Board of Educa-

tion ruling relating ie high school fraternities that,

“The rule also required teachers to refuse to allow

a member of a fraternity or sorority to represent his

school in any literary or athletic contest or in any other

public capacity; * * * they were only prohibited from

representing the schools, as members of those asso-

ciations in public contests and capacities. This was not

a denial of any natural right and neither was it an un-

lawful discrimination.”

a

». In the absence of fraud, arbitrary or collusive con-

duct, the courts will not substitute their judgment for the

decisions of a voluntary association. This is the seitled

rule of law in Illinois.

In the ease of Engel v. Walsh, 258 Ill. 98, 103, pertaining —

to voluntary associations, the Supreme Court chose to

fol'-w the same rule in dismissing a suit for want of

equity, filed to restrain a labor union from enforcing or

attempting to enforce a fine upon a member for violation

of the rules. The court said, quoting in part from People

vy. Board of Trade, 80 Ill. 134, (page 103):

“The Board of Trade, so far as we can see, is only

a voluntary organization, which its charter fully em-

powers it to govern in such mode as it may deem most

advisable and proper. It has adopted its by-laws, pro-

vided a forum for their endorsement, which has acted

thereunder, and the court will not interfere to control

its action.”

The court further said in its opinion at page 103:

“In churches, lodges, labor unions, and other like

voluntary associations, each person on becoming a

member, either by express stipulation or by implica-

tion, agrees to abide by all rules and regulations adopted

by the organization. (Bostedo v. Board of Trade, 227

Ill. 90.) Courts will not interfere to control the en-

forcement of by-laws of such associations, but they

will be left free to enforce their own rules and reg-

ulations by such means and with such penalties as

they may see proper to adopt for their government.

The case presented by plaintiff in error in his bill

must fall, we think within the rule announced in the

foregoing authorities.”

eh.

It is interesting to note that in other states almost identi-

eal fact situations involving high school athletics were de-

cided as the Illinois courts rule. In the State er rel Ohio

High School Athletic Association, et al. v. Judges of the

Court of Common Pleas of Stark County, 1962, 178 Ohio

St. 239; 181 N.E. 2nd, 261, 266, the Supreme Court of Ohio

granted a writ of prohibition in favor of the Ohio High

School Athletic Association, a voluntary association, Te-

straining the Common Pleas Court of Stark County from

enforcing a restraining order restraining the association

from enforcing one of its rules relating to eligibility of

two boys, members of the Portsmouth High School football

squad, from playin, interscholastic football during a certain

school year, and that court in recognizing the rule of non-

interference with voluntary associations said (page 266):

“It is well established that covvts will not interfere

with the internal affairs of voluntary associations, ex-

cept in such cases as fraud or lack of jurisdiction. Ac-

cordingly, it is held that mandamus will not lie to

regulate the affairs of unincorporated societies or asso-

ciations, at least not in the absence of a permissive

statute. Nor will an injunetion be granted where the

association is proceeding in accordance with its rules

and within the scope of its jurisdiction. The decisions

of the tribunals of an association with respect to its

internal affairs will, in the absence of mistake, fraud,

collusion, or arbitrariness, be accepted by the court as

conclusive. Moreover, it is held that the courts will not

undertake to inquire into the regularity of the pro-

cedure adopted and pursued by such tribunals in reach-

ing their conclusions.

Even more to the point is the following language at

page 472, Section 27, ibid: (Quoting from American

Jurisprudence )

‘The decisions of any kind of voluntary society

or association in disciplining, suspending, or ex-

om

pelling members are of a quasi judicial character.

In such cases, the courts never interfere except to

ascertain whether or not the proceeding was pur-

suant to the rules and laws of the society. Whether

or not the proceeding was in good faith, and whether

or not there was anything in the proceeding in

violation of the laws of the land. * * *’

and further, in 5 Ohio Jurisprudence (2nd), 440, Section

7, we find the same rules of law set forth:

‘It is a well established and uniform rule that

courts of equity have no authority to interfere

with the action of voluntary and unincorporated

associations where no property right is involved.

* * * And neither will such court interfere with the

management of a society unless the officers are

acting in excess of their powers, or collusion or

fraud is claimed to exist on the part of the officers

or majority of the members. * * *’”

The only exceptions to the aforesaid rule are in cases

ot fraud, collusion, mistake of fact or arbitrariness. Even

the Cireuit Court of Winnebago County (wherein Auburn

High School is situated) indicated that such exceptions were

not applicable, saying:

“The Court does not intimate or wish to be under-

stood as intimating that the Association made a wilful

mistake or acted wrongly or improperly. A review and

consideration of the evidence before the Court will

demonstrate there was much uncertainty even as to

the year of birth. For instance, his present Illinois

driver’s license shows his age as one year older than

that contended by him. The Association should not

properly certify a player as to age unless and until it

is thoroughly satisfied with the proof of age.” (Tr. Ct.

Record 80).

The Cireuit Court made the error of substituting its judg-

ment for that of the High School Association, and in ae-

=

cordance with the decisions noted herein the Illinois Appel-

late Court reversed, saying, after finding that there was

no evidence of fraud, collusion, ete., that:

“In the absence of any evidence of fraud or collu-

sion, or that the defendants acted unreasonably, arbi-

trarily, or capriciously, the Athletic Association must

be, under the authorities cited, permitted to enforce

its rules and orders without interference by the courts.”

(Petition, Appendix A, p. lla).

It is very clear that the Illinois cowrts acted on:

(1) the evidence

(2) application of Illinois law to the conflicting evidence

concerning whether or nct Petitioner was born be-

fore or after December 11, 19-0.

This involved no constitutional question, or federal legal

issue.

Il.

PETITIONER’S ARGUMENT IS FRAUGHT WITH MIS-

STATEMENTS OF FACT AND OF THE PRINCIPLES OF

LAW INVOLVED IN THE CASE AT BAR.

Petitioner is clouding the issues with misstatements of

fact and of law in his attempt to obtain review by this

court. The more glaring items are as follows:

A. Contrary to the fact that the Illinois High School As-

sociation’s only function is to correlate, supervise and main-

tain a program of activities between member schools com-

prised of public, parochial and private institutions alike

(Def. Ex. 15, R. 281, 282), Petitioner states that the asso-

ciation has “taken over the entire educational program

in the public high schools of the State of Illinois, as it

relates to athletics * * *” (Petition, page 4).

= a

B. Even though the Appellate Court of Tllinois held the

rulings of the respondent are subject to judicial review and

subjeet to modification and reversal if fraud, arbitrary or

collusive conduct are proved (Petition, Appendix A, Page

lla), petitioner categorizes the opinion of the Appellate

Court of Illinois as one which precludes any judicial review

of the rulings of the association (Petition, pages 4, 8, 14,

17, 18, 20, 22).

(’. Even though petitioner had a right to ( and did) par-

ticipate in intramural activities and to the benefits of a

course in physical edueation at Auburn Senior High School,

counsel would have you believe this right was taken from

the petitioner by the Tlinois High School Association’s

ruling (Petition, pages 13, 17, 22). The Illinois High School

Association deals with interscholastie athletics, whereas the

right to an education, insofar as athletics are concerned,

includes only intramural athletics and physical education

training (Constitution of the State of Illinois Art. VITI,

Section 1; Ch 122, Seetion 27-0 through 27-9, Ill. Rev.

Stats. 1963: I. C. 1. Argument, page 12. supra). There is

no evidence that an education was not made available to

the petitioner. In fact, petitioner has now graduated from

Auburn Senior High School.

D. Petitioner’s references to “civil rights” are a sham

utilized to obtain review of a decision based on non-

federal grounds. The references to “color” and race (Pe-

tition, pages 4, 12, 17) are uncalled for as the record does

not lend a scintilla of support to the theory of discrimina-

tion on the basis of race.

ik. Moyer v. Board of Education, 391 Til. 156 (1945),

Griffin v. Co. School Bd, of Prince Edward Co., 12 L. Ed.

8nd 256 (1963), and the bulk of other decisions cited by

the Petitioner are not applicable to the ease at bar.

Jd

The distinguishing factors are too numerous to go into

in this Brief, but typical of the “shotgun” approach are

The Moyer and the Griffin citations. Myer v. Board of Ed-

ucation involved a suit by a taxpayer to compel the school

district from floating a bond issue to purchase land to

build an athletic field. The court, treating athletics in

the sense that students, under Illinois Law, have a right

to physical education courses, to point up the need for

an athletic field, held against the taxpayer. As this Court

knows, the case of Griffin v. Co. School Bd. of Prince Ed-

ward Co. dealt solely with discrimination because of race

when the county school board in Virginia closed its schools

and supported private institutions for the educating of

white children. It has no place in the case at bar.

IT.

THE PETITIONER HAS INDULGED IN AN UNJUSTIFIED

ATTACK UPON THE RESPONDENT.

The normal high school 14 to 17 year old should not

have to compete with 19 and 20 year old, physically mature

young men. There is a legitimate need to restrict inter-

scholastic competition: to those students whose scholastic

level is satisfactory, to prohibit recruiting and to provide

the regulations which High Schools need for competition

accompanied by reasonable protection for high school aged

students.

Some measure of system and planning is necessary in

all interschoiastie competition. Tax supported State Uni-

versities form the nucleus of the well known “Big Ten” and

“Big Eight” conferences, for example. The National Col-

legiate Athletic Association, comprised of public and pri-

vate colleges and universities, 1s not (as high school asso-

om

_20—

ciations are also not) & “monster” which deprives students

of their “rights”. These associations are voluntary, useful

and in the public interest. Without them there would be

no standards and interscholastic competition would be

chaotic.

(f)

CONCLUSION.

—_—_—_—_

The petition for writ of certiorari should be denied,

since no grounds for the issuance of said writ exist.

Respectfully submitted,

Joux G. Povst,

105 S. LaSalle Street.

Chicago, Illinois 60603,

| Attorney for Respondents.

Povst & BULKELFY,

Joun G. Povst.

Jerome N. Groark,

Of Counsel.