# Brief of Respondent in Opposition to Petition for Certiorari — Au v. Commissioner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0183%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Respondent in Opposition to Petition for Certiorari - **Published:** January 1, 1965 - **Citation:** 379 U.S. 960 ## Text \ LIBRA e. =F 6 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, 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0183%3A3. Public record. Not legal advice.