Petition for A Writ of Certiorari — Shapiro v. Shapiro

FILED

JUN 22 1968.

SUPREME COURT. U. &

eh a

In the Se eo,

‘Supreme Court nf the Mnited States

— TERM, 1968

IRVING SHAPIRO, |

_ Petitioner,

LEE T. SHAPIRO, | i

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

_ APPELLATE COURT OF ILLINOIS, FIRST

! JUDICIAL DISTRICT

CHARLES A. BELLOWS

‘10 South La Salle Street

Chicago, Illinois 60603

Attorney for Petitioner

JASON E. BELLOWS

SHERMAN C. MAGIDSON

On the Brief

ee aan

UNITED STATES LAW PRINTING CO., CHICAGO, ILL. 60618 LA keview 5-6581

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| | PAGE

Opinions Below ....... 1

Jurisdiction : " ne 2

Question Presented ies 2

Constitutional Provisions, Statutes and Rules Involved 3

Statement , : salle 7 4

Reasons for Granting the Writ. ; TERS

~ Conclusion ......... ms oe

CITATIONS OF AUTHORITY _

- Cases

Airline Stewards and Stewardesses Ass’ n V. “Quinn,

. 35 Ill.2d , 106, 219 N.E.2d 499 ....... 12

Allen v. ei Se 166 US. 138 Sit 13 |

“ Bozarth v. Bozarth, 399 Ill. 259, 77 N.E.2d 658... 6

_ Burns v. Burns, 35 Ill.App.2d 34, 181 N.E.2d 605 16, 18

’ Burns v. Ohio, 360 U.S. 252 é&. 14

Douglas v: California, 372 U.S. ‘353 —< 2

Kisler v. United States, 338 U.S. 189 ; 13

Griffin v. Illinois, 351 U.S. 12 o-eeesocesseceeneeen 14.

Hovey v. Elliott, 167 U.S. 409 .......... 14

National Union of Marine-Cooks and Stewards v. =

* Arnold, et al., 348 U.S. 37 -.......... 12, 13, 14, 15, 16, 17 .

| Ee PAGE

Constitutional Provisions

Fourteenth Amendment to the Constitution of the

United States - tee 3, 11, 12, 13,18 -

Article VI, Section 7 Constitution of the State of

Tlinois ...... . 3, 11, 12

Statutes and Rules

IlRev.Stat., 1965, Ch. 110, $101.36 5

Til.Rev.Stat., 1965, Ch. 110, §101.41(2) : . 2H

Il.Rev.Stat., 1967, Ch. 110A, §301 .............. : 6

ILRev.Stat., 1967, Ch. 110A, §308 ......” stg

Iy.Rev Stat, 1967, Ch. 110A, §317 antecvveinereerenens 1

Tll.Rev.Stat., 1967, Ch: 110A, §325 .......... 6

IlRev.Stat., 1967, Ch. 110A, $342 ..... | 7

Ill.Rev.Stat., 1967, Ch. 110A, §343 ....... 3, 4, 14, 15

Illinois Civil Practice. Act, Sec. 76 (Laws 1965, p. 628,

§1 | :

Miscellaneous

Committee Comments, Illinois Supreme Court Rule

343, Smith Hurd Annotated en 1967, Ch.

110A, §343 °... 15

Be the | aie eae

| Hupreme Court pf the United States

Octoser Term, 1968

No.

IRVING SHAPIRO, . ,

| ee Petitioner,

vs.

LEE T. SHAPIRO, ror.

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, FIRST

"JUDICIAL DISTRICT .

Petitioner, Irving Shapiro, prays that a writ of certiorari

be issued to review the judgment of the Appellate Court of

Illingis, First Judicial District, entered in this cause on

November 13, 1967, and November 28, 1967.

‘Es sar: OPINIONS BELOW

oh | _ No opinions were rendered by Ahe. courts below.

ie

_.. JURISDICTION

The judgment of the Appellate Court (Appendix: A, |

_ infra) was entered on November 13, 1967. A motion to

vacate that judgment and for other ’ relief was denied on

_ November 28, 1967. (Appendix B, infra) A timely ‘‘Peti- ~

tiqn for Appeal As a Matter of Right, or, in the Alterna-

tive, for Leave to Appeal’. was denied by the Illinois

Supreme Court on March 27, 1968. (Appendix C, infra)

A. petition to reconsider that order was denied by the

Illinois Supreme Court on May 15, 1968. (Appendix’ D,

‘.tmfra) The jurisdiction of this Court is invoked under 28

U.S.C. 1257(3).

QUESTION PRESENTED |

Whether a state reviewing court may, consistent with si

the due process and equal protection clauses of the Four-

teenth Amendment, deny appellate review in a civil case"

where Petitioner filed his 3,421 page recotd and fully per-

-fected his appeal by timely action, and thereafter made

timely requests, supported by affidavits, for extensions.

of time within which to file his brief and abstract of record, .

the last of which requests. was denied and judgment of

the reviewing court dismissing his appeal was entered;

‘and where, within four days thereafter and twelve days

from the date his brief and abstract were due, Petitioner

filed a 366 page printed abstract of the record, a 100 page

printed additional abstract of over 600 exhibits introduced

in the trial proceedings and a 71 page printed brief, to-

gether with a motion to vacate the judgment and for leave

to file his brief and abstract instanter, which motion was

denied; and where the state constitution grants all persons

an appeal as 4 matter of right and the timely filing of

briefs and abstracts is not a jurisdictional requirement?

. . ; . Sad » : . Se ee

3 : : . ;

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED ae 7

‘The Fourteenth Amendment to the Constitution of the |

United States provides in pertinent part:-

‘‘Section 1. * * * No state shall * * * deprive any

person of life, liberty, or property, without-due process -

- of law; nor deny to any person within its jurisdiction

the equal protection of the-laws.’’ .

Article VI, Section 7 of the Constitution of the State —

of Illinois provides in pertinent part:

_£ Tn all cases, 6ther than those appealable directly

‘to the Supreme Court, appeals from final judgments

of a Circuit Court lie as a matter of right to the

_ Appellate Court * * * ”’-

Former Rule 41(2) of the Illinois Supreme Court (Ill.

Rev. Stat., 1965, Ch. 110, ms 41(2)) provided in pertinent :

part:

‘¢ * * * Tf in any cause, whether on ‘appeal or writ

‘of error, either the abstract or brief is not filed within

the time proscribed, the appeal or writ of error will,

on the call of the docket, be dismissed. * ** ”? § ~

Present Rule 343 of the ‘Illinois Supreme Court (Iil.Rev.

Stat., 1967, Ch. 110A, §343), euperseting former Rule

41(2), provides:

. (a) Time. The brief of the enpdent é in the review-

ing court shall be filed, with proof of service, within

35 days from the filing of the record on appeal, except

that in cases in- which a reviewing court grants leave

to appeal or allows an appeal as of right the appellant

shall file his brief within 35 days from the order allow- -

ing the appeal. Within 35 days from the due date of

the appellant? ’s brief, the appellee’ shall file his brief

in the reviewing court with proof of service. Within

14 days from the due date of the appellee’s brief, the

: appellant may serve and file a reply brief. Any reply

brief ¢ an — or other party —— by rule

4.

=

341(h) shall - filed within 14 days from the due date

of the appellant’s reply brief. A party who allows his

petition for leave to appeal or his answer to stand as

‘his brief shall notify the other parties and the clerk

of the reviewing court.

(b) -Exterding or Shortening Time. The réviewing

court or a judge thereof, sua sponte or upon the mo-

tion of a party supported by an affidavit showing good .

“. cause, may extend or shorten the time of any party

to file a brief.

STATEMENT

hoepentent, hereinafter sometimes referred to as ‘¢plain-

tiff’’, initiated proceedings in the Circuit. Court. of -Cook

- County, Illinois, for separate maintenance from Petlioner

on October 9, 1961. (R. 9)! Various orders awarding

temporary support and attorneys’ fees were entered in

favor of plaintiff. In addition, a separate action for par-

tition of real property owned by the parties as joint

tenants, filed by plaintiff on June 22, 1962, was consolidated

for trial with the suit for separate maintenance. (R. 232)

This matter, however, was determined in a summary pro-

ceeding. (R. 312-314) The issues in the suit for separate

maintenance (and in a counter-claim for divorce filed, by

defendant) were heard by a jury and a verdict rendered

in favor of plaintiff on July 8, 1963. (R. 700) Thereafter,

on September 22, 1966, a decree of separate maintenance -

was entered. (R. 899-908) On October 21, 1966, .Peti-

tioner filed his notice of appeal from portions .of this

~decree, the temporary support orders and awards for

1“R.”\references are to the page of the record of proceedings in

the Circnit Court. of Cook County, Illinois, filed in the Appellate

Court Of Illigois, First Judicial District, as the “Record on Appeal”

~ and certified by that court to this Comt.

§ .

attorneys’ fees which preceded the decree, and the decree

of partition which had been entered in the consolidated ~

case” (R. 928) His praecipe for record was filed on the

same date. (R. 930)

On November 22, 1966, at Petitioner’s request, the time

for filing the report of proceedings was extended from

December 10, 1966, to and including December 13, 1966,

by each of the four trial judges who had heard a portion

of the proceedings. (R. 949, 953, 957, 963) The four por-

tions of the report of proceedings were approved on De-

. cember 13, 1966. (R. 973-979) Ten days later Petitioner

filed a ‘‘short record’” in the Appellate Court of Illinois,

2A party to a civil action in Illinois had and still has thirty days

from the entry of judgment or decree within which to file his notice of

appeal. Illinois Civil Practice Act, Sec. 76 (Laws 1965, p. 628, §1) ;

Ill.Rev.Stat., 1967, Ch. 110A § 303.

3 Undeg Illinois law at the time, the report of proceedings (tran-

script of evidence) must have been approved by the trial judge and

filed with the clerk of the trial court within 50 days after the filing

of the -notice of appeal. The ¢rial judge was permitted to extend

the time for filing the report of proceedings an additional 45 days.

Ill.Rev.Stat., 1965, Ch. 110 § 101.36(1)(c).

4 At the time, Petitioner was allowed ten days after. filing the

report of proceedings to file his record on appeal in the reviewing

court. IJl.Rev.Stat., 1965, Ch. 110 § 101.36(2)(d). Provision was

made, however, for the filing of a “short record” consisting of

“enough of the record on appeal to show a final order, judgment or

decree, notice. of appeal filed in proper time, proof of service of a

copy * * *, the praecipe for record and proof of service and any

other parts ‘af the record * * * necessary to the application made.”

Til.Rev.Stat., 1965, Ch. 110, § 101.36(2)(b). The reviewing court

was authorized to. extend the time for filing the complete record.

Tll.Rev.Stat., 1965, Ch. 110, § 101.36(2) (e). :

Hay nto reer prety wens

6

First 5 udicial District, and his —- was timely and

formally docketed.°

At the same time, Petitioner moved the Apueiiate Court

for the entry of an order extending the time for filing

the complete record to.and including January 22, 1967,°

setting forth by affidavit of his attorney that the clerk of

the Circuit Court had been unable to complete the com-

pilation of the entire record within the time allotted be-

cause of the number and volume of pleadings, orders and

exhibits. (App. E, infra, pp. App. 4-5)?- This motion was

‘allowed. Petitioner filed a certification that the record

was completed for filing on « anuary 19, 1967, thus per-

fecting his appeal. "

Thereafter, on February 9, 1967, a further decree pro-

viding for payment of alleged arrearages, awarding Re-

spondent $10,000 for defrayal of attorneys’ fees in con-

5 Although failure to docket an appeal on time might be considered

cause for dismissal, only the filing of the notice of appeal is juris-

dictional. Bozarth v. Bozarth, 399 Ill. 259, 77 N.E.2d 658; see also,

-Til.Rev.Stat., 1967, Ch. 110A, § 301. There is no question here,

however, that the appeal was docketed on time.

® See footnote 4, supra.

7™“App. E” references are to the page of Appendix E in which

Petitioner’s motions in the Appellate Court, and affidavits in support

thereof, have been reproduced in chronological order. These motions

and the orders in response thereto have been certified. to this Court

as part of the record of the Appellate Court. —

8 fIlinois law permits the filing of such a certificate rather than the

record itself. Ill.Rev.Stat., 1967, Ch. 110A, § 325.

7

nection with the aforestated appeal, entering a rule to

show cause to issue against Petitioner and setting a hear-

ing to;determine further attorneys’ fees was entered by

the Circuit Court of Cook County. (R. 1076B, F, H; 1090-

1091) Petitioner filed a timely notice of appeal from these

decrees (R. 1093) and, in due time, filed his record in the

reviewing court. His motion to consolidate this appeal with

his first appeal was granted.

Prior to the order consolidating appeals, and subsequent

thereto, Petitioner filed timely motions for extensions’ of

time within which to file his brief and abstract.® Each of

these motions, except the last, was. supported by an afii-

davit of counsel explaining the cause for the request!® and

® One practice under Illinois law requires an Appellant to file -an

Abstract of Record, which may be described as a summarization, or

abstraction, of the original papers and orders comprising the “com-

mon law record” portion of the record on appeal, and a narration

of the pertinent testimony recorded in the “report of proceedings”

portion of the record on appeal.:Ill.Rev.Stat., 1967, Ch. 110A, §342e.

10 Petitioner made seven such motions. All were opposed by Re-

spondent. His first, filed on February 17, 1967, was supported by

an affidavit reciting that the appeal would be affected by.supple-

mentary hearings (see text, pp. 6-7, supra), that he was preparing -

an appeal from adverse rulings in those hearings, and that he would

move to consolidate that appeal with the present appeal when it

was perfected. (See text, p. 7, supra) The affidavit also recited

that counsel was engaged in the preparation of two unrelated ap-

peals, and, because of these engagements and the size of the record

in the instant appéal, he was unable to complete the brief and

abstract within the time allotted to do so. Finally, counsel swore

that the application for additional time was not interposed for the

purpose of delay. ( App. E, infra, pp. App. 5-6)

Counsel’s affidavit in support of his second motion recited the

continued pendency of the related hearings (see text, p. 9, infra)

and the near pérfection of the appeal in that matter, the engagement

8

each, except that one, was granted, except. that the ‘time

allowed was usually less than requested. The last order

of counsel in a prior unrelated matter of length and complication

before the Appellate Court, and the length of the record in the in-

stant case, as well as the prospective length and complexity of the

brief, as matters which had prevented him from completing the brief

and abstract. Cotnsel again affirmed that the extension of time

‘ was not sought for the purpose of delay. (App. E, infra, pp. App.

“ 7-8)

Counsel’s affidavit in support of the third motion recited that he

was engaged in the preparation of the brief and abstract for the

now consolidated appeals, that the abstract was unusually—volumi-

nous because of .the size. of the record and required an unusual

oot amount of time in its preparation, and that counsel had been en- -

gaged in preparation for an extensive hearing before the Interstate

Commerce Commission in New York City previously set for the

month of June 1967. Again, counsel swore that the extension of

time was not sought for purposes of delay. (App. E, infra, pp.

App. 10-11)

. Counsel affirmed, in support of the fourth motion, that the ab-

stract had been prepared in draft form, that it was being typed and

proofread“in preparation for submission to the printer, that he was

commencing the preparation of the brief which promised to be

lengthy and complicated, and that other professional matters had

prevented him from devoting full time to this matter. As before,

counsel affirmed that the additional time was not sought for delay.

. (App. E, infra, pp. App. 12-13)

Counsel’s affidavit in support of his September 29, 1967, motion

" recited that he had been engaged in the preparation of the brief and

abstract but the intervention of two unrelated appeals and a two-

week trial in the United States District Court for the Northern

District of Illinois had prevented him from completing them. Again,

the motion was not interposed for delay. (App. E, infra, pp. App. °

13-14)

Counsel’s affidavit in support of his sixth motion, made on’Oc-

tober 24, 1967, recited that the abstract was being typed for sub- te

mission to the printer, that the brief was being prepared and that

his entire office staff was engaged in these tasks. Again, he af-

firmed that the extension of time was not sought for delay. On.

October 31, the Appellate Court allowed until November. 5th’ to

file the brief and abstract. (App. E, infra, pp. App. 15-16)

— — * ty

ere ET a TrPRRE " saieaae on re a ae .

‘

9

extended Petitioner’s time for filing his brief and abstract

to and including November 5, 1967.

On November 3, 1967, Petitioner requested an extension

of time to and including November 30, 1967, within which

to file his brief and abstract. This motion was supported

by the affidavit of an agent. of the U. S. Law Printing

Company affirming that Petitioner’s abstract had ‘been

submitted for printing, but stating that, because of the

size of the abstract-and other commitments, the printing

~ eould not be completed in time. (App. E, infra, p. App. 17)

On November 13, 1967, Petitioner’s motion was denied

and his appeals dismissed without opinion. (App. A, infra,

p. App. 1) :

Four days later, on November 17, 1967, Petitioner lodged —

his abstracts and brief with the clerk of. the Appellate.

Court, moved to vacate the order dismissing the appeal,

requested leave to file the brief and abstracts instanter,

and supported said motions by the affidavit of counsel

explaining the cause of hanes delay. (Aap. K, = pp.

App. 18-19)

The printed abstract which Petitioner tendered was 366

pages in length. It contained an abstraction of the plead-

ing filed and orders entered between October 9, 1961, the

date upon which the suit for separate maintenance was

initiated, and February 9, 1967, the date of the entry of

the last order appealed from. It also contained an abstrac-

tion of certain germane pleadings filed and orders entered

between March 7, 1967 and April 21, 1967. The remainder

of this volume was devoted to a concise narration of the

proceedings had in connection -with the filing of the plead-

ings and the entry. of the orders.

A second volume of the abstract, one hundred printed

pages in length, contained a summarization of over six

10

’ hundred plaintiff sg and yore ’s exhibits essential -

a determination of many of the points raised on appeal.”

* A vast number of these documents were checks and oe.

statements,

Petitioner’s Brief and Argument consisted of a two-

page statement of the nature of the case and the issues

raised on appeal, a seven-page statement of points and

authorities, a four-page statement of facts, a fifty-six-

page argument covering nine separate issues of law, and -

a two-page conclusion and prayer for relief, seventy-one

pages in all. Over forty authorities, including statutes, —

were cited in support of Petitioner’s position. He chal-

lenged the entire spectrum of orders entered by the trial

11 Some idea of the importance of these exhibits and the mag-

nitude of the task involved in abstracting and collating the exhibits

can be gained from an examination of Poirit VI of Appellant’s

( Petitioner’ s) Brief and Argument. Under. the caption “The’ Court

erred in finding that the defendant had an income of $20,000.00 to

$22,000.00 per year when the undisputed evidence received by the

court revealed that the defendant’s income from 1953 to 1961

averaged per year net approximately $15,419.00 and that for the

period 1961 to 1964 averaged approximately. $18,564.00 per year

net,” Petitioner analyzed a multitude of exhibits and from this

analysis argued (A) that the trial court abused its discretion in

awarding alimony amountipg to almost 60% of the defendant’s

annual income and bearing no reasonable relationship to the status

in life Which the parties maintained during the marriage; (B) that

the error was compounded by the failure of the court to consider

the income, business interests and separate estate of the plaintiff ;

and (C) that the trial court erred in refusing to admit certain de-

fense exhibits which evidenced plaintiff’s income, assets and business

interests. In making this analysis and argument, Petitioner con-

‘ structed a four-page “breakdown” of checks written by the parties

during the period January 1959 through July 1961 (the month the

parties separated). Petitioner also provided a summary of the

checks written by the parties during this period which showed the

month-by-month living expenses incurred by the parties.

SO IT TE AEN RE FEN ROS rpemgneres

- - al nt a a oh = >

11

court which adjudicated the property rights and financial

obligations of the parties, including various awards totaling -

$19,000 to the attorneys for the plaintiff as and for tem-

porary attorneys’ fees, attorneys’ fees in connection with

the partition suit brought by the plaintiff (consolidated

with the suit for separate maintenance, but summarily

disposed of in an independent proceeding, without hearing,

despite the verified answer raising. issues of fact filed: by

Petitioner), and _attorneys’ fees in connection with her

defense of the appeal, but exclusive of permanent fees for

the prosecution of the suit below. Two of the arguments

raised by Petitioner were based on orders entered by the

trial court subsequent to the docketing of the first appeal

and were encompassed with the second consolidated appeal..

The Appellate Court denied these motions, also without.

opinion. (App. B, infra, p. App. 1)

Thereafter, Petitioner petitioned the Illinois Supreme

Court for appeal as a matter of right, or, in the alternative,

for leave to appeal from the orders of the Appellate

Court.” On March 27, 1968, without opinion, the Illinois

Supreme Court denied leave to appeal. (App. ©, infra, p

' App. 2) Petitioner’s subsequent petition to reconsider that

order was denied on May 15, 1968, again’ without opinion.

(App. C, infra, p. App. 7

12Rule 317 of the Rules of the Supreme *Court of Illinois

(Ill.Rev.Stat., 1967, Ch. 110A, § 317) permits a party to seek

review of a decision of the Appellate Court as a matter of right

“in cases in which a question under the constitution of the United

States or of this state arises for the first time in and as a re@ult of

the action of the Appellate -Court.” The same rule permits an

alternative prayer for leave to appeal. Petitioner claimed, in the

Illinois Supreme Court, that the dismissal order violated his con-

stitutional rights to due process and equal protection and, under

Article VI, Section 7 of the Illinois Constitution, to appeal.

12 Nae hes ae

REASONS FOR GRANTING THE WRIT

Article VI, Gostion 7 of the Illinois Constitution pro-

vides :

‘Tn all cases, wane than those saieiiie directly

to the Supreme Court, appeals from final judgments

of a Cireuit Court lie as a matter of right to the

Appellate Court * * * *” |

Thus, in Illinois, a party to a civil action has a constitu-

tional right of appeal.* Airline Stewards and Stew- ©

ardesses Ass’n v. Quinn, 35 Ill.2d 106, 219 N.E.2d 499.

Arbitrary or capricious action denying this right not

only violates the Illinois Constitution (Airline Stewards

and Stewardesses Ass’n v. Quinn, 35 Tll.2d 106, 219 N.E.2d

499, 500), but denies due process and equal protection

as well.

A similar we although raised in a significantly

different context, has previously been before the Court.

National Union of Marine Cooks and Stewards v. Arnold,

-et al., 348 U.S. 37. In ‘considering ‘whether a state ap-

pellate court violates either the Due ‘Process or the Equal

RIPE BABE

Protection Clause of the Fourteenth Amendment * * *

18 Although the Supreme Court of Illinois has previously held

that dismissing an appeal confers jurisdiction as a matter of right

in that Court to determine the propriety of the dismissal, “for if

the appellate court’s dismissal was improper, [appellant has] been

denied [his] constitutional right of appeal * * * as the order of

dismissal precludes review of the trial court action,” (Airline

Stewards and Stewardesses Ass'n v. Quinn, 35 I1l.2d 106, 219

N.E.2d 499, 500) that Court refused to consider the merits of the

Appellate Court’s action in the present case. As a consequence,

there has been no opinion, decision or holding on this question. —

« ‘ . ba

13 Laue ae

when it dismisses an appeal from a money judgment as a

reasonable measure for safeguarding the collectibility of

that judgment’? (348 U.S. at 38), the Court established

the framework within which the present Petition is com-

posed. First, the Court decided that a claimed violation

of the equal protection clause would not lie where ‘no

' showing has been made that anyone comparably situated

has been treated differently from petitioner.’ (348 U.S.

_.at 41) Second, the Court held that’the due process clause

_ was not violated where the dismissal was reasonably di-

rected at sustaining the effectiveness of the appealed judg-

ment against the petitioner’s attempt to frustrate it. (348

U.S. at 43-45) See also, Eisler v. United States, 338 U.S.

189; Allen v. Georgia, 166 U:S. 138.

Mr. Justice Black, joined by-Mr. Justice Douglas, dis-

senting, felt on the other hand that, since the state had

provided a system of appellate review, ,

««* * * proceedings in its supreme court are merely the

final step in the judicial process i trying cases and

. therefore cannot be conducted so as to deny that ‘due

_ process’ which the Fourteenth Amendment requires.

Cole v. State of Arkansas, 333 U.S. 196, 201-202, 68

S.Ct. 514, 517, 92 L.Ed. 644, and cases there cited. And

[the state] also must abide by the Fourteenth Amend-

‘ ment’s equal protection command in deciding who

can and who cannot appeal. Cochran v. State of Kan-

sas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453.’’ (348

U.S. at 4546) a :

The dissent viewed the dismissal order as ‘‘punishment”’

for the petitioner’s disobedience of a court order, ‘‘an

offense having no relation at all to the merits of the

plaintiff’s claim or to the petitionér’s defense.’’ (348

U.S. at 46-47) Because the appeal was a continuation of

the defense which began in the trial court and ‘‘From the

beginning, due process and equal protection have meant

that every defendant must be permitted to defend himself

os

in any court where his antagonist can appear and prose-

cute’? (348 U.S. at 47; see also, Hovey v. Elliott, 167 U.S.

409), and because that right belongs to ‘‘one who has vio-

lated the laws the same as one who has not”’ (348 U.S. at

47), the dissent criticized the dismissal as a violation of

Fourteenth Amendment rights. —

Without settling ‘the issues here presented—except, of

course, insofar as the dissent’s view would clearly support .

Petitioner’s ‘claim—National Union set the pace for later

decisions. Thus, when the Court learned that a transcript

of evidence was critical to effective appellate review of

criminal convictions in Illinois and that indigent defen-

. dants were being denied such review solely because they

could not afford transcripts, it condemned Illinois practice

as a deprivation of equal protection and instructed the

state to implement its appellate procedures to make them

‘ equally and fairly available to all. Griffin v. Illinois, 351

U.S. 12. A similar attitude was taken toward state pro-

cedures which denied effective review because of the lack

of counsel (Douglas v. California, 372. U.S..-353), or be-

cause of the lack of ability to prepay statutory docketing

fees (Burns v. Ohio, 360 U.S. 252). There is no particular

mystique which differentiates these later decisions merely

because-they were rendered in the course of criminal pros-

ecutions. As both the majority and dissent in National

Union pointed out, once providing for appeal, a state must

provide it equally and fairly to all. National Union of

Marine Cooks and. Stewards v. arm, et q., 348 U.S, 37,

43, 45.. apis , ;

As a consequence,,the question here presented is whether -

a state court may, within these limits described by National

Union, punish counsel’s delay — specifically permitted by

- Rule (Ill.Rev.Stat., 1967, Ch. 110A, §343) —by denying

15” aoe.

his client appellate review. The question is highlighted

by the fact that here the delay did not evince a disregard

for the rules of court, did not threaten the effectiveness of

the judgment and was non-jurisdictional in nature.

In Iinois, the timely filing of briefs and abstracts

is not a jurisdictional step in the process of appeal. . |

Prior to the adoption of new Rules of the Supreme Court

. of Illinois, if a brief or abstract were not filed within the |

time prescribed, the appeal would be dismissed on the .

call of the docket. Ill.Rev.Stat., 1965, Ch.110, §101.41(2).

New Supreme Court Rule 343 (- Tl. Rev.Stat., 1967, Ch.110A,

§343), dealing with the filing of briefs and abstracts, omit-

ted that provision. The committee which drafted those

rules noted in connection with this omission:

‘‘The provision in the former rule that if a brief or

abstract was not filed within the time prescribed the

appeal would be dismissed on the call-of the docket was

omitted as both too strict and unnecessary, ‘The court

has the inherent power to dismiss an appeal for any

breach of its rules, although a less drastic remedy

would normally suffice. In the'rare instances in which .

a brief of an appellant is inexcusably not filed on time,

the court can exercise this power without any. provi-

sion in the rule specifically authorizing it to do so.’’

‘Whether. this most drastic remedy should have been im-

posed in the present case, therefore, raises questions of

due process and equal-protection unlike those settled in

National Union. There, it was decided that the-petitioner .

had attempted to frustrate the effectiveness. of the state

court’s judicial process by his actions. (348 U.S. at 43-45)

It was also shown that this conduct.did jeopardize the

effectiveness of this judgment. (348 U.S. at 44) Here, .

not only did the failure to file Petitioner’s brief and ab-

stract on time not jeopardize the effectiveness of the orders

POE LA OWS | Pee POT ah OREM, Sp GOING: LCL FSA LET IE NOE THD 0G Oe eT em Bae cr

16

and decrees being appealed, but the circumstances demon-

strate that the delay in filing was not inexcusable nor an

attempt to frustrate the judicial process. Petitioner under-

took a formidable task by his appeal. The record, which

he was required to abstract. consisted of several volumes

and exceeded 3,400 pages, including both the pleadings and

' the report of proceedings. In addition, over 600 exhibits

were essential‘to a proper determination of the points raised

on ‘appeal. Petitioner was diligent in filimg his record

on appeal, doing so three days before he was required.

Thereafter, he duly requested extensions of. time within

which to file his brief and abstract, supported by the affi-

davit of his attorney setting forth concise, but valid reasons

why the brief and abstract had not been completed. In each,

counsel swore that the request was not interposed for the

purpose of delay. The last request was occasioned by the

inability of the printing company to complete the printing.

There were no unexplained delays; the Appellate Court was

not left wondering, as it is in so many other cases, as

to the progression of the appeal, the reason for the delay,

and indeed whether Petitioner had made arrangements for

an appeal at all. It was, as the dissent in National Union ©

pointed out (348 U.S. at 46), as though the dismissal were

punishment for disobedience of the time regulations for

filing rather than a means for safeguarding the judgment

itself. This is made clear by the fact that, also ‘unlike

National Union, the appeal was summarily dismissed. See

also, Burns v. Burns, ‘35 Ill. App. 2d 34, 181 N.E.2d 605.

When, four days after the order dismissing his appeal

and twelve days after his brief and abstract were. due,

Petitioner sought leave to file these documents and vacate

the dismissal, the Appellate Court was assured—if it had

ever harbored any doubt—that Petitioner had been en-

‘gaged in this formidable task as his counsel had sworn.

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“i:

The court had the two abstracts and the brief before it.

It could see from the size and complexity of these docu-,

ments that more than a few days had gone into their prep-

aration. And at this time counsel repeated that the delay

/ in filing these documents had been due to the inability of

the printing company to complete the printing involved

by November 5th, the date on which the documents were

due, and that the printing had been completed within

twelve days only because the company had devoted all of

its time and energies to the task. K (App. E, infra, pp. Bead ;

18-19.)

Whether a reviewing court may, under these circum-

_stances, totally deprive a party in a civil action appellate

review of asserted trial court errors is as important a

question as whether a state may deny effective appeal on

the basis of other arbitrary standards. The majority in

National Union held that the equal protection claim could

not be sustained because no showing had been made that

petitioner had been treated differently from anyone com-

_ parably situated, (348 U.S. at 41) Although no such show-

ing is made here, none could possibly be made.* The

nature of the circumstances assertedly justifying: the

dismissal defy the making of any such showing. Exten-

sions of time for filing briefs and abstracts are granted in

Illinois. So also are reasonably prompt motions for leave

to file these documents instanter after the time for filing

4 Statistics showing the average number of extensions of time for

filing briefs and abstracts granted parties to an appeal, the average

length. of time between judgment and filing of briefs or the reasons

why extensions are granted or denied are not available in Illinois.

There is, in short, apart from a case by case analysis, no way to

advise the Court whether the length of time or number of extensions

sought: in this case exceeded the norm, or whether the reasons

advanced by counsel met any informal, “average” standard.

18

has expired. It is safe to say that the requests made by ©

Petitioner here did not exceed those made by any other

comparably situated appellant in Illinois. No modern de-

cision in Illinois records the fate of any appellant who has

suffered as drastic a penalty as Petitioner under similar

circumstances. Compare, Burns v. Burns, 35 Ill. App. 2d

34, -181 N.E.2d 605.

That this matter is obscured somewhat by the failure of

_ the Illinois courts to enunciate the basis for denying Peti-

tioner’s state constitutional right to appeal is clear. But

the failure to take cognizance of this right also involved a

failure to comment on his rights to due process and equal

protection under the Fourteenth Amendment. As a conse-

quence, it is important for this Court to consider whether

the Fourteenth Amendment prohibits a state from denying

appellate review as a remedy for a failure to file briefs

and abstracts in time, where the delay is explained, does

not jeopardize the effectiveness of the judgment being

appealed, is promptly remedied, and is not jurisdictional,

and where the penalty is not proportionate to the ‘‘offense’’

nor to a fixed standard of experience. .

CONCLUSION

For the above and foregoing reasons, Petitioner re-

spectfully submits that the petition for a writ of certiorari

should be ‘granted.

Respectfully submitted,

Cartes A. BELLows

, Attorney for Petitioner

Jason E. BetLows |

Sueeman C. Macimson

On the Brief