Brief for the Respondents in Opposition — Universal Builders, Inc. v. Clark

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* LIBRARY- Se pteeeeeseerren

emwewr!, U.S.

UE ashen ican Tf mE

IN THE . | JUL 6 1970"

_supceme Court of the eno

! he October TERM, =. 157t

_ CHARLES BAKER, et a,”

Petitioners,

vs,

K & F INVESTMENT C0, al

Re spond wuts,

SIDNEY CLARK, ‘1. au,

i ‘ \ ‘ Y titione rs,

Us, . ;

- UNIVERSAL BUILDERS, INC. er an,

Respondents. +

BRIEF. OF’ RESPONDENTS UNIVERSAL BUILDERS,

-INC., et al. IN OPPOSITION: TO THE PETITION OF

PLAINTIFFS. APPELLEES BELOW FOR aad OF

- CERTIORARI | ;

Burtos Y. WEItTzeENFELD,

. Lovis A. Lenr, Jr.,

Jonunxn F. MeC LURE

Sraxtey M. Li ariox.

120 South LaSalle Street,

ae | ‘hieag roy Hlinois 60603,

“Counsel for Respondents Universal

Builders. Inc... et al.

ARNSTEIN, Giuck, Werrzenrerp & Mrxow,

~ 120 South LaSalle Street,

Chieago, THinois 60603,

Of -Céunsel.

2 ° : THE GUNTMORP-WARREN PRINTING COMPANY, cHIcaco

* *

Opinions Below

Jurisdiction ..

TABLE OF CONTENTS. |

—C ‘onstitutional Provisions, Statutes, ond Rules of Pro-

cedure: Involved yen [radiecaukaceuns oes BETS Ae

Counterstatement of the Case. Saver eokek en aaecanks

si caer al

fool adh Ag tether Neck Sdn in attatched ~ Ret hal whet

Part I: Elaboration of Jurisdictional Deficiencies.

Patt. Il: Non- Jurisdictional Reasons Why This Pez

“tition Should Not -Be Granted.:..0......

Petitioners Have Not Raised a Ques- ’

we -

' tion of Substance Under the Rules of

“0.

_ Warrant Review by This Court

This Court Should Not Consider tlre -

Decision Uo hes ree er tas

This Court? Should. Not Agata uae

sider’ Whether Nationally Uniform

Substantive Rights Must- Be .Gov- —

-erned. by “Natioually | Uniform Stand-

ards of Timeliness. , eter acon yi e ce :

This Court Need - Not Consider the

‘Alleged Intent of. the Reconstruction :

‘Congress Ps Gara Ren DR pene Soe

Petitioners’ Cc iad a a {}li-

-nois: Doctrine ‘of- Laches Does: Not

Warrant Revi iew by This Court....-.

The : Argued Applicability of the Fed- |

eral Doctrine of Laches Does Not

Construction of 42 U; S. C. $¢ 1988

Urged by Petitioners -...............

- - Petitioners Have Not Haiscd Any Sub-

stantial Question Under the . Fifth

and Feurteenth. Amendments. ep fep erin

Conclusion ....

? ‘ | . ‘£ ; ‘ .

‘ena 24484 864 46 & 2% 6K. 2 ES ea & G6606 66 cry rere tT Ps

* PAGE

dere Per Marr Set Rr icar. ©

ee —

TABLE OF CITATIONS.

Cases. a

| Alexander v. Cosden Pipe Co., 290 U.S. “484 (1984)... 7,

“Alsop v. Riker, 155 U. S. 448" B } pemeaare geen treks ee ey

Atchafalaya Land Co., std. v. F. B. Williams Cyaeen

Coy 258 U.S. 190 ( (IR). fener st seer to

Beard y. Stephens, 2 F. Des ( th ( it: F9GE). 2. s," ER :

Blakeslee’s Warehouses ‘Vv. City of ice 369 TI.

480, 17 N. -E. 20° 1 (198 38) EO Py Lore EE ee ery >

Campbell v. City of Haverhill, 155 U. S. 610 (1895)... «15 .

‘Chattanooga I ‘omy and Pipe Works v. Atlanta,’ 208

U.S. 399 ( (NE oe eee a peeve ae

Cope v. Anderson, 431 U.S. 461 (1947)...... ART te, Pliw. ae

“ Cramp v: Board of Public Instruction, 368 U. 87-278

(PR) FR eee poo ere Le SE Taeess Ik

Crawford v., Zeitler, 326 Vom 119 (th Cir, 1964) .....° 11°

. C ‘zaplicki y. , S. Hoe gh Silvercloud’’,- 351 U.S. 525.

(1956) DAee GEO pay PER Lee ced ne sd coaster acres re

Detroit Bank vi United States, 217 U: 329 (1943)... 16

I last v. Cohen, 392 U.S. 83 (1968). armed EM Roc oak om 7

Francis v.°C rafts, 2 03 I. 2d 809 (Ast C in. 19538), pave:

- denied, 346 -U.-S. 835....... atk ieanea sad eee ee 11

: Guaranty Trust Co. of N. Y. v. United States, 304 U. S..

126 (19: 38) SOA ec centy meet Peed te Mert os ae

~ Hawkins \. Barney’ s Lessee, 30 UL S26 (5 Pets) 497

(3GRtt 5ixe, heen ae Freres ie ee PE ae

4 Hileman yy. Kuable, 391 iF. 4 996 (3d Cir. 1968) Peuil WW

Holmberg v. Armbrecht, ¢ 327 U: S. 392 (1946).......11, 12

Jones v. Mayer, 392 UL S. 409° PC ola ore et 16, 17

Key ishiair v. Board of Rege nts, 38) U.S. 589 (1967)... 14 -

Lyons v. County of Morgan, 313 Tl. App. 296, 40-N. Ki

2d 108 (38d Dist. Gt ea PN ae ie

iii .

- MiChimy ¥. Silliman, 28 U. S. (3 Pet.) 270 (1830)... 7

O'Neil v. Northern ( ‘oloraddo eto Co., 242 U.S.

ya) | ee ee POE CEL EE PT eee ECE eee

‘~’ Sullivan v. | ‘elix, 933 U. 8.318 (1914) 7 See he eee Pre) Me

‘ “Parmeloe v. Price, 208 Tl, O44, 70 N. EB. 725"( (1904) weeny”

Ruséell v. Todd, 309 U.S. 280 oe Sarre iy eek cea 12,13 |

| Silber v. United States, : 370. U.S. 717 To eres” ie

Smith v. Cremins, 308 BF, 2d 187. Ys A. i. BB 11: D4

(9th Cir. | Dama nT ek eae ar ere eee Sere

Swan y..Board of Eligtier Kdueation, 319 Fr. 2d of (2d :

Rar. IOGG) wi vcass 4 .. A weet ay er rae 11, 13

| Textile Workers U nion v..L incoln Mis 353 U. S. 448

. (1957) eee eel eek on ere eee cule eis Naa is 9

. peri: Seale Co. v. C omputing Se ale C o., 261.0. S. 399

EE enters Bia URW pe REO ra attra hee ahsie ee 4's - 8

> th ad oe See,“

United Auto Workers v. Hoosier Cardinal Corp., 383

A AMR 0 cee ee, 7,9, 10,11, 14

United States v, Morris, 125 Ped. 322 (E. D. Ark. 1908) 16."

Virginia Coupon Cases, 114-U. S. 270 (1884) 2.00... 8,15

ginia ( S08, | © ore

Wakat vy. Harlih, 253 F.2d 59 (7th Cir, 1958). ao a

Wilson, v. Hinman, 172 F.2d 914 (0th Cir. 1949), cert.

denied, 336. U.S. 970, Soneafe denied, 337 v. 'S. 9297,

rehearing denied, 888 U.S. 9: 08 cairns USP Peer eeke |

~~ Wood v. Carpenter, 101 U.S. 135 (1879). Md Sone ens Saas 14

Fedeval Constitutional Provisions, .

‘Article IIT, Section 2......... saat orden ce inert See ee

Amendment raat hare i RIS eas eae Pe ae 16

Amendment XIV ............. ima eRe Seed tee, 16

x Pe

Federal Statutes.

15 U.S. C. § 15(b)—(Clayton Act, Statute of Limita-

re iSpemehws eee wes Ln tw 6 G5% Kes 0-0 11

28S. C.§ § 1292() )

BRUNE SERENE ryan nee fee

28 U.S. C. § 1343 (Jurisdiction, Civil Riehts ) rr

28 UaS. C. § 1652 (Rules of Decision Act) ......... 7,8, 16

28 .U. 8. C. § 2101(¢ ‘)— (Supreme Court Jurisdiction, °

2 | ree RISD g OL keen Whskes + 4s bene fake wess 8

29 U. S.C. $185 (See. 301, Labor Management Rela-

ems At? ..2.<: ere ea tiles bo uae a mse Xs 9

420.8. C. $1982 (Civil Rights, Property) Ae a ae 16

42. U.S.C. $1986 (Civil Rights, “Byssive Acces-

ge Osa shy AE i SO LR 2.

42U.S.C.§ 1988 (Civil Rights, Remedies) ...13,14, 15, 16

42 U.S. @. §3612(a)—(Fair Housing Title, € ivil

Rights. Act of 1968, Statute of Limitations). ........ 13

[linois Statutes,

1969 Til. Rey. Stats., Ch. 83, Par. 16 (See. 15, Illinois

Limitations Act) PERE UG ROkk 44 aac ckee kaw “12

F | Rules of Procedure.

Rules of the Supreme ( ‘ourt of the United States

Rule’ ra kek di seacecucunade 3, 4

Rule eee Oe oe Caisse nas Oil 6 keeee 14

Federal Rules of Civil Procedure

Rule 23(b) (3) SeNCee ee ee Cas 5s-04 a cuaseeckxas 6

Cie SNEED Sea hc aos: Memiteetsdvee sess cases 4,6

as THE

Supreme Couirt of the Anited States!

Oct oBER TERM, 1969.

No. 1653.

CHARLES BAKER, er a1,

' Petitioners,

Us,

* F&F INVESTMENT CO, pr au.

| Re »sponde nts.

SIDNEY ‘CLARK; er an, |

, Petitioners,

Us, ‘

_ UNIVERSAL BUILDERS, ING, ‘ET AL.

eavoatee.

- BRIEF OF RESPONDENTS UNIVERSAL BUILDERS,

INC., et al., IN OPPOSITION TO THE PETITION OF

PLAINTIFFS. APPELLEES ELOW FOR WRIT OF

CERTIORARI. pe | |

The respondents here who were defendants-appellants

below in Sidney Clark, et al. vy. Universal Builders, Inc.,

et-al., oppose this petition for writ of certiorari which has

be en ‘file ck by plaintiff 8s-appellees below.

‘OPINIONS BELOW.

The two opinions of the District Court reported at 300

I. Supp. 210 and unofiicially reported at CCH 1969 Trade

Cases § 72,754, and attached to’ the’ petition as Appendices

B and C, respectively, were rendered in the case now -known

as Charles Baker, et dl.v. tf & F. Investment, et al., to

Ww hich these 1 espondents are not parties. The District Court

orally stated that those opinions contained his reasoning

apphieable to these respondents.’ “A three-judge court, con-

vened pursuant to 28.U. S.C. § 2281, rendered an unreported

opinion on another aspect of this litigation, reprinted in

full as Appendix ( to these respondents’ own petition for

writ of certiorari to review the decision below, Universal

Builders, Inc., et al. v. Clark, et al., No. ss Oct. Term,

1969. i |

« _ JURISDICTION. —

This Court does. not have jurisdiction to grant this petis

tion because no petitioner and no member of the class is

adversely affected by tlre judgment below. The court below

held that none of them are barred by limitations. ~ Hence,

petitioners have no ee to. appeal, and ct petition

‘does not presenta ‘fease’’ or ‘controversy’ ’ within the

meaning of Article TII, Section 2 of the Constitution of

the United States. ‘This jurisdictional objection is elabor-

ated i in Part I of the Argument, infra. ino he al :

Respondents would:also note an additional jurisdictional

deficiency. Pe titioners’ application for extension of time

‘for filing the petition, conditionally granted by Mr. Justice

“Marshall on, April 8, 1970, should now be denied for failure

to make application therefor at least ten days before the.

Fe “Although. the two cases were never consolidated in the Dis-

trict Court, ‘they were. then (but are no longer) assigned to the

same judge. ;

3 aS

end of the period sought to be extended, as required by

‘this Court’s Rule 34(2). The application expressly sought

to extend a period ending on April 6, but waS not mailed

until April 1 (petition at 2, note), and no ‘most extra-

ordinary circumstance’? has been shown. Enforcement

of this Court’s Rule would render the petition out of time

under 28 U..S.-€. § 2101(e), which is jurisdictional. _ Toledo

Scale Co. v. Computing Scale Co., 261 U. S. 399; 418 (1923).

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

OF PROCEDURE INVOLVED. _..

Respondents’. objections to this €‘ourt’s jurisdiction to

‘grant this petition involve the following. provisions not

presented in the petition:

(1) Constitution of the U nited States,’ Article III, See

-tion 2, Clause 1:

The judicial Power shall extend to all Cases, in Law °

and Kquity arising under this Consfitution, the Laws

of the United States, and Treatios made, or which shall

be made, under their Author ity ;—to all ( ‘ases affecting

Ambassadors, other public Mi: listers and Consuls ;—-: ~

to all Cases: of admir ality and maritime Jurisdiction ;

—to Controversies to which the United. States shall

be a Party;—to Controversies between two er more

States ;—between a State and Citizens of another

State ;—between citizens of different States,—between

Citizens -of: the same State claiming Lands. under

Grants of different States, and between a State, or the

Citizens thereof, and foreign States, Citizens or Sub-

jects.

(2) 28 U.S. C. ¢2101K(e), 63 Stat. 104:

Any other appeal or‘any writ of certiorari intended

to bring any judgment or decree in a civil action, suit

or proceeding hefore'the Supreme Court. for review

shall ¥e taker or applied for within ninety days after: .

the entry of such judgment or decree. A justice. of

hand ;

the Supreme Court, for good cause shown, may extend

_ the time for utpplying for a writ of certiorari for a

"per iod not exceeding. sixty day Se

, (3) Rule 34( 2), Rules: of the Supreme Court of the

United Btates-

Whenever any justice of this court or the clerk is

empowered by law or under any provision of these

Fules to extend the time within which ‘a party may —

petition for a writ of certiorari or docket an appeal or

file anybrief or paper, av application seeking such

extension must bé presented to the clerk within the

period sought to be extended. Applications for ex-

tension Of time to file petitions for certiorari or to

docket appeals shall be submitted at least-ten days be-

fore the expiration of the period sought to be extended

and will not be granted except in the most extraordi-

» nary circumstance jf filed during the last ten days

of such period. ;

(+) Rule 23(¢)(3), Federal Rules of Civil Procedure:

The judgment in an.action maintained as a class

action under subdivision (b)(1) or (b)¢2), whether

_ or not favorable to the class, shall include and describe

those whom the court finds to be members of the class.

The judgment in an action maintained as a class action:

under subdivision (b)(3), whether or not favorable

to the class, shall include and specify or deseribe |

those to whom the notice provided in’ subdivision

(c)(2) was directed, and who have not requested

exclusion, and w hom the court finds to be members

of the class.

COUNTERSTATEMENT OF THE CASE.

Respondents incorporate by reférence the Statement:

of the Case in their own petition in No. 1637, Oct. Term,

1969. In addition, respondents consider it essential to add

the following, with regi card to the proceeding below 1 in which’

of | 5)

they are parties, Clark, et al.:v. Universal Builders, Inc.,

ef ali: | : :

The footnote at page’6 of this petition states that the

District Court entered final orders of dismissal as to certain

members of the plaintiff class. This statement is incorrect.’

The District Court ruled on the limitations question by’ .

denying respondents’ motion to dismiss the claims of certain

named plaintiffs (A. 76).?- That was the only ruling covered

by the District Court’s findings authorizing ‘interlocutory

appeal under 28 UT. ‘S.C. § 1292(b)—(A. 76-77). The |

District’ Court’s limitations reasoning was reflected in a

‘simultancous ruling permitting this action to be maintained

on behalf ofa class defined to exclude any. persons whom

the District Court: thought would -be barred by limitations

(A. 76-77). - No interlocutory appeal from the class action

ruling was authorized. nas en

Petitioners’ summary of the ‘acts which are claimed to

be civil rights‘violations (petition.at 5) makes it clear that

these respondents are not alleged to have actually refused

to aleal with anyone beeause of race nor to have actually

sold or offered to sell to anyone for different prices or on

different terms because of race, as respondents previously

noted at page 7 of their. own petition in No. 1637.3 *Peti-

‘tioners’ siummary, at. page 5, of the relief they. seek onits

the complaint prayer for judgment ‘‘in the amount of the

actual damages sustained by each of the plaintiffs and the

members of the chiss’? (A. 20).

2.. The record below has been filed in No. 1637., Oct. Term.

1969. All references herein to: that. reeord are ‘to the Appendix...

filed in the Seventh Circuit designated hy the prefix ‘‘A’’.

3. The issue whether the complaint states a claim upon which

. relief may be granted was not before the Seventh Circuit.

A 3 ‘ od d

’

ARGUMENT, PART I: ELABORATION OF JURISDICTIONAL

‘DEFICIENCIES.

‘The'S Seventh Cireuit’s decision was rendered on inter-—

locutory appeal from the District Court’s limitations rulings

only. The District Court did not dismiss-the claim of any

one on limitations grounds, To. the contrary, he denied —

respondents’ motion to dismiss the.claims of certain named

plaintiffs whom respondents contend are barred by. limita-

‘tions (A. 76); Since, Ais” Was the onlys ruling covered by

the District Court's findings (A. 76-77) authorizing an

interlocutory appeal under 28-U. 8S. C. § 1292(b), and vines

tioners are not adversely affected by the | Seventh Cireuit’s

judgment affirming the District © ourt, they have no standing |

to appeal. The class petitioner s arewithori ized to represent

-does not include the persons whom the Distriet Court be-

lieved barred by limitations (A. 77). This leaves petition-

ers devoid of authority to represent such persons as they

“now seek to do. ‘

Having permitted this case to be maintained as a @lass

action under Rule 23(b)(3), Federal Rules of Civil Pro-

eedure (petition, App. -C, at App. 64)@ the District Court

could not render an adjudi ‘ation bindame upon the absent

class’ members’? without finding that notice had heen

given ‘to ‘the persons to be bound, that they are members

of the class, and that they had not ‘requested exelusion.

Rule 23(c¢)(3),. Federal Rules of Civil. Procedure. No

such findings were or could have heen made beeause no

notice had been given to-¢lass members when the limitations

issues were decided by the District Court. Accordingly

not even the persons excluded from the plaintiff class are

adversely affected by the Judgment helow, beéause it‘is not

an adjudication binding upon them, but only a legal prece-

‘dent for such an adjudication in- the future if they file. suit

(at which time they may resort to appellate ocedures if

they are held barred). s

‘ statrte not having f. limitations. provision, an appropriate

. It is well settled that a ‘‘ease’’ or ‘‘controversy’’, with-

in the: meaning of Article III, Section 2 of the Constitution, -

arises only when a‘elaim is presented by a litigant haging

a personal stake in the outeome—someone*who will per-

‘sonally be better off if his claim is successful. E.g.. Flast

v. Cohen B92 U.S. 83, 99 (1988) ; Cramp v. Board of Public

. Tustruction, 8368 U.S. 278, 282-283 (1961); see also “Aler-

" ander®, Cosden Pipe Co., 290 U.S. 484, 487 (1934). _ There

is nothing this Court.ean do for ane ee nor any.mem- .

her of, the elass defined by the Distriet Court which will

—deave them better off than the Seventh Cireuit’s judgment

thet none of thei are barred by limitations. . Accordingty,

petitioners lack standing to appeal that judgment sufficient ,

to satisfy the Constitutional limitation upon this Court’s |

jurisdiction. © me ——— '

—

“ARGUMENT, PART II: NON-JURISDICTIONAL REASONS

WHY THIS PETITION SHOULD NOT BE GRANTED.

he Petitioners Have Not Raised a Question of Substance

Under the Rules of Decision Act.

The Seventh ‘Cheat cage considered and followed

OLSullivancyv. Fe lir, 2338 U. S..318 (1914). decisions follow- —

ing it of the First. ae Third, Fifth, Sixth, Seventh

and Ninth Cireuits (cited at 420 F. 2d at 1193-1194 and also

cited in‘note 7, infra), and the géneral and unbroken line

of. this Court’s deéisions from IW'Chmir v. Silliman, 28

U.S. (3 Pet.) 270 (1830), to Unite dl Auto Workers v.

Hoosier Cardinal Corp... 383 U.S . 696 (1966), all of which

hold that, where a‘right of netion arises under a federal

forum state statute of eaagep rahe is adopted by. the

ules

of Decision Act, 28 U.S § 1652.

Petitioners ask Coe these decisions be ‘overruled.

ae s*

& ee 7

They contend? (at 8- 9) ‘that the exprete. pxeoption - in the -

Rules of Decision Act (‘*... where the’ Constitution ... of

"the United States-or Acts of Congress othetWwig ise require |

...?’) precludes adoption of ‘state statutes of. limitations

hy that. Act, because, they angue, any requirement of time-

liness is a depriv: ation of right. Petitioners rely solely upon

_ the Virginia Coupon Cases; 114 U.S. 270 (1884), demon-

strating their failure to recognize the dispositive distinetion

between a complete deprivation of all reniedy-as4n Virgima’.

‘Coupon and ‘a requirement that available remedies be pur-’

sued within.a reasonable cae ees Ae

’

This Court has long held, contrary to’ petitioners’ argu-

-ment, that a reasonable timeliness requirement is not aquiv-

alent to'a denial of right: :

**And such is the 1 ationale of statutes of limitations.

They do. nat necessarily lessen rights-of property or.

‘impair the obligation of contracts. Their, requirement

is that the rights and obligations ‘be asserted. within a

-prescribed time. -If that be adequate, the ,requirement

is legal and its justi®@ and wisdom hav™the testimony

of ge practices of the world.”? Atchafalaya Land Co.,

Ltd. v. F. B. Williams Cypress Co., 258 U. S. 190,

- (492 22, emphasis supplied); see also Hawkins’-v.

Barney's Lessee, 30 U.S. (5 Pet,) 457 (1831).

As these long-standing decisions hold, petitianers ’ con- |

tention that. application of a statute of limitations equates

with a denial of rightg@s.nothing new, his lone since been

warrant review by this Coutt. : *, °-

considered and rejecte by this Court, and does ‘not now

collective bargaining agTr eement..

B. This Court Should Not Again Consider Whether Na-

a tionally Uniform Federal Substantive Rights Must Be

| Governed by ease | Uniform esmeneed of Time-

linéss. a. :.

: Lal ;

Petitioners argue (at,9-11) that a recently ‘““oxpanded

_ view?’ of federal law, evidenced ‘by decisions.of this Court

that ‘‘many federal . . . causes of action . . . are to be’

. gov erned by uniform federal. rules’’, requires , ‘feexamina- .

‘tion -and_ reconsideration of whether ‘‘varying”’ state

statutes of limitations. should ‘continue to gevern the time-

liness of federal aetions based on Acts: of Cmigcens not

having limitations provisions.! ’ This argum@ was spe-_

peed considered and specifically. rejected by this Court.

in United Auto Workers v. Hoosier Cardinal Corp., 383

U.S. 606 (1966), in which a:state statute of limitations was

applied to bar an action under Section 301 of the Labor }-

Management Relations Act, 29°U. S. C. § 185," to enforce a

This Court there expr essly Tjected a taiatios that

the federal poliey requiring nationally uniform substantive

law in § 301 suits also required a nationally uniform stand-

‘ard of timeliness for bringing such. suits, thereby preclud-

“ing application of state statutes of limitations, 883 U.S. at

701-705.5 This Court there noted the possibility. of yational

4. if there i isa need fora anifor m tine liness rule, it Ix strange

that. petitioners advocate a test of ogee Which v aries. not from

state to state, but from ease to ease, Craplicki v. N.S, _—

Silvercloud’!, 351 U.S. 525, 53, (19: 56) : Alsopv. Riker, 155 Ue

“448,461 (1894), The ‘‘eure’’. petitioners “Sein is worse thas

the ‘‘disease’’ they say exists.

5. Petitioners’ attempt to distinguish away Hoosier Cardinal

‘by footnoted argument (at 10) that § 307 of the Labor Manage-

ment Relations, Aét is. ‘‘merely’’ jurisdictional, and that the .

substanfive law applied is’ state contract law. betrays their un-

familiarity with Tertilé Workers Union v. Lincoln Mills. 353 U.S

448, 456- 457 (1957) in which this Court held to the contrary. :

Petitioners’ apparent ‘ignorance of Lincoln Mills is startling since

it, was specifically cited in Hoosier Cardinal. ‘

ee ee

ialiew béing frustrated by a lack of, uniformity in applyi ing

substantive law, while specifigally rejecting the claim that

such policy mjzht be frustrated by a lack of uniformity in,

applying limitations. 383 U.'S. at 701-703, :

~ There is nothing which can be Said. of federal civil rights

policy and the need petigiorers assert + for. a nationally”

uniform st andard of timeliness for asserting civil rights

which Avas not considered juad specifically rejected by: this .

Court in Hoosier Cardinal. Accordingly, petitioners’ re-

liance upon an ‘fexpanded view,’ of federal law and a need

for ‘uniform federal rules’ is only st rehashr of an identi-

eal argument expressly rejected by this Court as tate as -

1966, and there #8 no need for this Court to consider: the

question again.

. -

> - =

¢, ‘This Court Need’ Not Consider the Alleged Intent of |

| the Reconstruction Congress,

Petitioners argue (at 10-11) that thie draftsmen of “the

“post-bellum civil rights acts could not have intended that

federal courts *‘blindly”’ apply. state limitations statutes

to bar eiv il rights actions. This contention was made before

the Seventh Cirenit: whith responded : a ai.

“The fact that the C¥xil Rights Atts grew out of the

need to- remedy prior abuses of, state law and state

officials.fails to indicate th: at Congress intended private

actions to remain Tipe interginably.ar that the federal

. courts could not be trusted to sflect appropriate state.

imitations statutes.’’ 420 FP. 2d at- 1195. } epee

supplied. ae :

S) i .-

CD. AAR eee eee ey,

6.. Petitioners’ reference (at 11. n.) to South Carolina’s dis-

criminatory. 1865 statutes of limitations does not help them, The

legislative ‘history of the post-bellum civil rights acfs does not

siggest any Congressional apprehension that the Federal courts

would apply to-those statutes discriminator¢ or otherwise inappro-

priate state statutes of limitations. ;

Respondents would also note that the ‘<Felationship he-

. twe en Congress apd the courts on the question of litmita-

{ions provisions’ and. the related doctrine of C jongression: il

acquiescence which this Court dese1 hed in Hoosier Cardi-

nal, 883) U.S. at 708 704 is fully ‘applic able: heye.*

Accordingly, there inno me rit in petitioners’ contention © --’

that this Court should now examine general history of the

Reconstruction period. ar kN ss! :

@. Petitioners’: Construction ‘of the Illinois Doctrine, of

Laches Does Not Warrant Review by This Court.

Petitidners ‘contend (at 11) that the ‘Seventh. 3 ireuit

should ‘have ‘decided whether, asa matter -of state law,

limitations: or. laches would be applicable here, and. suggest

the: latter (at:11, note). Respondents submit that-the lower

court correctly held that the choice between limitatigns and :

laches is a feeeral question (420, F.2d at"tH192 n. 3). See

Holmberd v. Armbrecht, 327. U. S. 392, 395 ¢1946}. This

alone is dispositive of this, part of petitioners’ argument. .”’

‘Furthermore, petitioners’. analysis of Tlmois law is in-

ee. The three decisions upon which they rely (at

Tq, n.) say that laches governs suits ‘Sin equity ’’, Aint: do -

te Congr ess has not enacted a ste tute of limitations sipplic able

to the civil rights statutes involved here even thovieh state statutes

of limitations have been. held applicable = federal civil rights

actions in, ¢.g.. O'Sullivan vy. Felir 233 VU. S25 318 (1994): Francis

* Crafts, 203 F.2d 809. (Ist Cir. 1953). « ‘ert. denied, $4 6 v. &.

ahs : Swan v. Board of. Higher Education, 319 FP. 2d 56 (24 Cir.

1963). Wileman vo nable, 391 F. 2d 596 (3d Cir. 1968); Beard...

_v. Stephens, 372 F.2d 685 (3th Cir.. 1967): Crawford v. Zeitler,

396 EF. 2d 119 (6th Cir. 1964): Smith vo @Cremins, 308 FL 2d 184,

98 A. L. R. 2d 1154 (Sth Cir. 1962): Wakat vo Marth, 253 I. 2d

59 (ith-Cir, 1958) ; Wilson v.. Hinman, 172 F. 2d 814 (10th Cir.

1949), cert, denied, 336 U.S. 970, rehearing denied, 3387 U.S. 927,

rehearing denied, 338 U. 8. 953, pinoy eh *e.g..* Chattanooga

Foundry and Pipe Works y. ‘A flanta, 203: V. 390 (1906) .apply-

ing a,state statute’ of limitations to a ee antitrust suit and

15 U.S. C. $15(b), with which Congress later indicated its desire:

_ Yoyfa federal timeliness rule for antitrust suits by enacting one.

. . + . . 4 . ; .

not say when a suit ts ‘in equiy’’ for purposes of choosing

‘

\ . *, . ae “ye :

ébetween laches’ and limitations. The test to be applied

when this choice must be made is the source of the right of

- action, and eyen an action seeing equitable relief is gov-

~erned by limitations-if based on a-statutory rifht to sue;

beeause’a_ rig statutor igin, as the one assertec

beea right of stafutory origin, as the one asserted

herezis a*‘civil action not otherwise provided for?4within

the nieaning of Seetion 15 of the Hlnois -Limitations Act,

now codified as 1969 TIL: Rev. Stats., Ch. 83, Par. 16.

See .Parmelee vy. Price, 208 Til. +544, 70 -N.. BE. 725

' (1904), where this limitations” pfovision was appled to a.

“creditor's bill in equity because the source of the right to

sue was a statute. See also Blakeslec’s Warehouses v. City

of Chicago, 369 Il. 480, 484, 17 N. KE. 2d.1 (1988); Lyons v.

—> +—“County of Worgan, 313 Til. App: 296, 40 N. B, 2.103. (3d

= origim. ; ae - =

Dist. 1942). The cases Cig by petitioners (at. 11,-n.) are-

ry inapplicable because fhey were all suits*for breach of. fi-

dueiary obligations, which actions. are pyrely of equitable

a .

Kor both of: these reasons; petitioners’ argument that

laches sould apply as a matter of Hlinois law is without

merit.

E. The Argued’.Applicability of the Federal Doctrine of _

‘L&hes Does Not Warrant Review by This Court.

Petifioners argue (at 13-15) that, as a.matter of federal

law, laches rather than l?mitations must be applicable be-

cause ‘the complaint ‘seeks equitable relief. : Petitioners

rely on. Russell v. Todd, 309 U.S. 280 (1940) and Holmberg

v. Armbrecht, 327 U.S. 892 (1946). They are in error.

“a ae . ar . s. . msiar -* ae :

‘Phe availability of both legal”and equitable remedies:

iff civil: rights ‘actions, (28 U. S.C. $1348, 42 -U S.C.

1988) renders the eour't’s legal and equitable jurisdiction

“i

re 2 138

‘concurrent, in which eventgtlig statute of limitations appli-

cable to. the legal remedy is. applicable to entire action.

Pies v. Mtnderson, 331 U.S. 461, 463-464 (1947) ; “Russell -

v. Todd, supra, 309 U.S. at non This complaint prays for |

punitive damages (A. 20%, andthe petition (at Sy reaffirms.

the demand for this legal remedy. Moreov er, this rule is

applicable to civil rights actions even w hen nee equitable

relief: is sought. Swan v. Board of Higher Education, 319

F. 2d 46, 59n. (2d Cir. 1963), opinion by Mr. Justice Yar--

shall W hile on the bench of that C ourt.

" Accordingly, ‘the federal doctrine’ of laches does Sat ap-

ply. . This case ixc¢learly controlled by Cope vy. Anderson,. «

B31 U. 8. 461 (1947). ;

Petitioners also argue thal laches. should apply. here

because the five-year state statute applied by the lower

‘courts is ‘*short’’. and because, unless respondents

prove -actual prejudice at’ trial, the defense of limi-’

* tations would be ‘‘arbitrary’” and a ‘technicality, pure and

’ simple”? ( petition at 15,.16). Petitioners’ ~msupported

characterization of the five-year Hlinois statute as ‘‘short”’

cannot withstand comparison of that period with ‘the one-

year and the six-month limitations periods which Congress. ,

'* itself applied to the: civil rights statutes: for which it did

enact limitations provisions, 42 U. S; C. $$ 1986, 3612(a).

~The other branch of petitioners’ argument fs equally

untenable. The defense of limitations is not a ‘ttechni-

-—eality’’, as petitioners. contend, but-‘‘a meritorious defense, |

in itself serving a publi¢ interest’, Guaranty Trust Co, of

N.Y. v. United States, 304 U. S. 126, 136 °(1938). Nor must

respondents prove prejuc ice by passage of time. The

- — —

8. Responde nts accept jetitionern’ convession (at. 15) that no

actual damages. will be sought at trial except such, sums as are

contingent upon and directly result from reformation if awardéd.

Without that concession, the allegatfons of ‘Paragraphs’ lo(ey, (f),

(az) and (h) of the complaint (A. 17-18) would constitute claims

for actual damages not. contingent upon reformation.

Gis

< eG Gt San A ee ay

Pd . r] * : , ¥ :

eae oa staiate. of limitations represents a conclusive’ presiimption

of sonst drawh by the legislature: -

Mitommraat se ‘* -, While time is constantly destroying the evidence,

ee of rights, [statutes, of limitation] stipply its place-by

a presumption which renders proad unnecessary. Mere

- delay, extending to the limit .preseribed, is itself a

Sea te conclusive bar. The bane and the antidote go together.’

: - ss v. Carpenter, 101.U. 8. » 135, 25 L. ed, 807, 808

(i679). 2.

; For all of. these. reasons, petitioners’ attempt to invoke

. * ” the doctrine of laches does- not warrant revitw. by this

‘ “Court.

. Vv

> 4 o

a ee This Court Should Not Consider the Construction of

ae _ 4° 42°U. S.C. § 1988 Urged by Petitioners.

This Court should not consider petitioner’ s ‘argument

(at 10-11). that Section 3 of the Civil Rights Act of* 1866,

eeene U. S. C. 3 ¥ 1988, prohibits application of state statutes

. of limitations: to ¢ivil rights actions. This statute was in

effect when .this’ Court decided O ‘Sullivan v. Feha,

_U:S.:318 ( (1914) and whet the dozens of lower court cases

oe following it (See 420 F.2d at 1193- 1194) were deéided.

Thus, the’ doctrine -df. Congressional acquiescence which

» this Court deycribed ‘in. Hoosier Cardinal, 383, U.S. at

704, is ckearly applicable.” g ee

Teen, Wee

ie ‘Nor "should this Court summarily; ‘ disregard O'Sullivan as

petitioners suggest (at 15)! eyen though the effect of 42-0. 8. C.

f $1988 may not have been argued. This {ourt has always been

empostered: to notice plain error not raised by the parties. «See,

¢.g., Silber v. United States, 370 Us. 717 (1982) ; Rule 40 (d) (2)

of this Court. If an existing federal statute. * precluded the result

reached in O'Sullivan, the effect of such a statute could have been

noticed to avoid plain error, Neyishian-v, Board. of, Regents, 385

a U.S. 589 (1967), upon which pefitioners rely, is inapposite be-

\ = = cause it was an uppéal from a state court halle nging federal -

-constitutionality of "a state statute, and considerations of federal- ~~

ory

Moréover, Section 1988, by its express language,-is in-

applicable to ‘limitations. “It provides only- that, in civil

rights actions, existing federal law, is to Ye used to supply

"hin remedies and punish, offenses, and that, where existing

iederiil law is’ deficient or not suitable, the courts are to , Nei,

. look to existing state law for’ the same purposes. This "| 7

statute is not concerned with the ‘time within which the cy

remedies -it prov ides must be pursued. Petitioners here “

ask this Court to re ud into, $-1988 something that simply |

of limitations ‘will har the federak court from affording . a

a reniedy to sonie of the petitioners> {petition at 12), and

. they again.confuse the-totiil denial of a right with a reason-

able limitation upon the time for*its enforcement. See dis-

cussion of Vérginia. Coupon and Atchafalaga Land, supra, of.

F arthermore; even if- £1988. could be said z ie to

choosing an appropriate’ timeliness rule, the state statuté.

of limitations would still be“applicablé here. There is no f

federal statute of limitatjons, and the federal-doctrine of é

aches ean not apply. ‘Micrefore, eVen § $1988 would — ya

— resort te the state timeliness requirement, | .* ‘t/ ay

Nor is there any merit to petitioners’ suggestion. {at 12),

‘that, under existing feder: al law, this action may be held

gubject to no. a, of timeliness, Such acoptention: oe

Was re, rected long ago.” 7 ; — ff :

‘AS was ‘said by Chief Justice Marshall. ih Adams v.

' Woods, 6.U. S. 2 Cranch, 336,342: :[2 298,299], :

‘This would be utterly repugnant the genius of:

our laws. In a country within erhightiot even treason -

can De prosecuted after the Tapseé of three Vears, it

‘ean searctly be “supposed that an individual would

remain forever liable to a peewiiary forfeiture,’ 7

¢ ‘ampbellv. C ity of Haverhill, 155 U.S. 610, 616 (1899). :-

skeha relations, do preclude this Court from considering such cons.

stitutional questions which gvere not raised before the state courts.

~ No such considerations preclude this Court from. considering wn- - _-

argued feder al statutes ‘when eonstruing another sia sces statute. = hie

‘ . re . p Sa -- . ¥ e . re rs

a oe $B Fe | |

a ‘ A " Pe

For all of- these. reasons, review by this Court i is - not

Ww wary antéd.

| ogee G. ‘Petitioners Have Not: Raised Any Substantial Quiestion...

OF ah ae -Petitioners“argit (at 16:17) that’ they ‘could not have. |

Seine a known they had a valid civil rights cause of action until this ° <.

‘C ourt he ld in* Jones v. Mayer, 392 U. 8. 409*(1968), that =~

state action is not an essential element of violation. of 42° —

U.S... § 19822") From. this premise, they cantend that, -

since this complaint: was tiled promptly after that decision, 2. *

Fifth and Fourteenth Améndment rights 6f due process .

and equal protection would be. violated if satry of them are |

held: barred by limitations.” ee A Ae

At: the threshold: of petitioners? arguinent isthe tacit

assumption that dire arene requires s that no one be barred

by limitations until a’ test*case if ‘decided by this Court

upholding the particular: cause of. action: involvegl. This:

a is unsupportable. ” See -O’Neil vy. Northern Colorado Trri- -.

| - gation Co., 242 U.S. 20 (1916). Nor did Jones v. Mayer |

_> reverse. Cear-eut prior Jaw as petitioners’ argument: _Sug-

. * gests. See 392 U.S. at: 419.4205" citing United States. v.

Morris, 125 Fed. 322 (ED. “Ark: 1903).°- * |

finally, “petitioners? contention. that, until this Court

decided Jones v, Mayer, tliey had‘no reason to believe they

might maintain this action, is shown. by this very record

‘ to be unténablé ais a matter of undisputed fact. The civil

rights charges against respondents are made “in a single

count (A. 16) which specifically alleges that respondents :

30, - T hese redpondents deny that the claim here ‘states a cause ph,

of action-under Jones v. Mayer, but, as previously noted, the suf-

ficieney of the a ee not before the Seventh Circuit. « { :

ed ~~ .11. “Petitioners failfto vecoghize that the Fourteenth Amend-

ment is inapplicable to action by a federal court under a federal —

ostatute .(Rutes = Decision Act). See Detroit Bank v. United

_ States, 317 U. 329, | (1943): “"e ,

eye! | he es 17

at art 4 acted ander color of ‘he aws of Hlimois and ‘of,

a its municipalities, and under|color-of the custom and

a ; jusage of residential racial se sregation | allege d above.”

e ' They [respondents] also. made itse of the laws and

Bee cystoms of the State of. Hilinois, the: County of Cook -

Se and the City of Chicago, . .2’ (A. 11). are

° na aE

Coe eae hile Yoapaniloute believe the factual allegations do’ not”

Nea constitute state action as a er of law,. resolution of

the question ‘is unnecessary *here.! -Petitioners’ own comi-

plaint allegations of state action refute the argument

: they now make, that they did-not file, a ‘timely Suit because

they believed, until this Court decided Jones v. Mayer, that

‘ state action was required.

- Therefore, this petition does. not present any y Con.

stitutional, question, and. revi lew ‘by this: Court is ‘hot: war-

ty ranted. | TG

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2 ‘a f

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+ , 2 The a Court did not dee ide> whether the ‘illegatifms

oe € -

tien unnecessary rm decision of ’ ‘he: iasues

mY nN 1 before it (A. 42.

o*s “G5S76). . : es

Ses Raa es Po cone ae 18 Sie aR o: : ——

pe: _ CONCLUSION.

. This. Court does rot have jurisdiction to grant the

petition. Even assuming jurisdietion,, the petition does not

raise ‘any quéstion of sufficient substance* to watrant re-

_ view ‘by this Court. Accordingly, the petition should be. — -

denied. : ey we oa ae

' Respectfully’ submitted, a "ee eae ee

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ARNSTEIN, GLUCK, WEITZENFELD & Minow; ait Ee eee ae?

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