Petition for Writ of Certiorari — Estep v. Janler Plastic Mold Corp.

IN THE

Supreme Court of the United States

OcToBER TERM, 1974

No. 74= 568

LuTHER Estep, a Minor, by JAMES STANLEY, His

Legally Appointed Guardian, Petitioner

V.

JANLER Pxiastic Moitp CorporaTion, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

|

EvuGENE I. PAVALON

Peter B. CAREY

228 North LaSalle Street

Chicago, Illinois 60601

BERNARD DuNAU

912 Dupont Circle Building, N.W.

Washington, D. C. 20036

Attorneys for Petitioner.

Press or Byron S. ADAMS PRINTING, INnc., WASHINGTON, D. C.

ef 9

ELEN SE TIRANA Ent

ER CET, ce eet ETTORE GOL LOPE Be

TABLE OF CONTENTS

Page

SR i em aaa ee 1

ERSTE stor ety ee a 2

I I oo a ide wens cebuseceenen 2

I a 3

a REAR EE ay Rf RN ee 3

Reasons FoR GRANTING THE WRIT ................... 6

ele ak 14

AUTHORITIES CITED

CasEs:

Arnett v. Kennedy, 416 U.S. 134 .................05. 11

eee 8s EO een 7,8

Board of Regents v. Roth, 408 U.S. 564 .............. 8

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281

UNI I ER a Deah ae noaa e e ae 11

Cleveland Board of Education v. La Fleur, 414 U.S.

hah ee RPE A eR AURORE Span a eT ene

Covey v. Town of Somers, 351 U.S. 141 .............. 10

D. H. Overmyer Co. v. Frick Co., 405 U.S. 174 ....... 7

Fuentes v. Shevin, 407 U.S. 67 ..................0.5. 7

Goldberg v. Kelly, 307 U.&. 254 ..... 2... ccc ccc cence 7

Haymes v. Catholic Bishop of Chicago, 33 Ill. 2d 425 .. 13

rn 6

ee ee ee Oe 6

Jimenez v. Weinberger, 42 USLW 4948 ............. 6

McDonald v. City of Spring Valley, 285 Tl. 52 ........ 12

Mitchell v. W. T. Grant Co., 416 U.S. 600 ............ 7

Mullane v. Central Hanover Bank and Trust Co., 339

age SARS ce lecapearg ennai pn pape ee ap haecrad lng

New York v. New York, New Haven & Hartford R.

a Re IR a tare eae ao 9

Pe ep eres eye ad STELLA MEDD EI EOLA DLE II ET I EE CRA PLO ONG PSOE

ii Table of Contents Continued

Page

Paschall v. Christie Stewart, 414 | 2 Tae eee 9

Perry v. Sindermann, 408 U.S. 593 ........00000 0107 7,8

; Quaker City Cab Co. v. Pennsylvania, 277 U.S, 389 13

: Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35 ........ 9

Robinson v. Hanrahan, 409 U.S. 38..........0000 007) 9, 10

Schroeder v. New York, 371 U.S. __ A iy Cee wal ea 9

. Smith v. Cahoon, 283 U.S. 553.000.0022 002000000 13

¢ Sniadach v. Family Finance Co., 395 U.S. 337 01111 7

; Stanezyk v. Keefe, 384 F.2d 707 ............000 0107 9,13

; Stanley v, Illinois, 405 U.S. 645 2000000222 7

inker v. DesMoines School District, 393 U.S. 503 ... "se

U.S. Dept. of Agriculture v. Mu rry, 413 U.S. 632 ..... 7

; Vlandis v. Kline, 412 U.S. 441 2.0) 7

Wisconsin v. Constantineau, 400 U.S. 433.200.0001 z

Wisconsin v. Yoder, 406 U.S. 205 2.0.0.0... 000000770) 6

| Statutes anp Recuations:

: Fair Labor Standards Act:

3 BERR RS AR aaa ae ee eS 4

; se tance OS oe ee NS 4

Fed. R. Civ. Proe.:

Shires eks Casati Arte 9

BPE Wisi Sus Wiewec seat cc gee a at ce 9

; Ill. Anno. St., ch. 83, § 22 (Smith-Huré, 1966) :

DEE i se kine Kata Gapetenoneus Mix g a on 12

BE eaka tee hruevars shinee Acute cer) 12

RE netieeerEvehachipssaivene eee a 12

| ESE US ES aig Ps inhale a ln Misha a 12

PU aire Nise hada nie k cde y Os Si 12

ecshepsonn cele CCL Te OTE eR A tale 12

Ill. Rev. Stat., ch. 48, $138.5 ......0000.00000........ 3

ill. Rev. Stat., ch. 83, HARE ioe ey eerenieres | 9,11

Illinois Workmen’s Compensation Act:

MN arenes Ra addsug ee ie le. cas, cs avec es 4,5

Judicial Code:

eM, GEM) nao noose nce scence... 2

United States Department of Labor, Rules and Regu-

lations, 29 CFR 570.65 ......... 00.00.0000... 4

ps aaa en Be SERN AS ORE ee PSN MS SACRE amr maa

————— —

Table of Contents Continued ili

Page

MISCELLANEOUS:

Gunther, G., The Supreme Court, 1971 Term—Fore-

word: In Search Of Evolving Doctrine On A

Changing Court: A Model For A Newer Fqual

Protection, 86 Harv. L. Rev. 1 (1972) ........... 7

Tribe, L., Childhood, Suspect Classifications, And Con- |

clusive Presumptions: Three Linked Riddles, to be

published in the forthcoming Winter-Spring 1974

issue of Law and Contemporary Problems ...... 6

Wright & Miller, Federal Practice and Procedure Civil,

Vol. 6, § 1570, pp. 775-776 (West, (1971)) ........ 9

BBR oncere - RFROR ER Oee er OE eg

SOTA RCN IT ENE AIT at eR EN AE RR, OPERAS: _

7

IN THE

Supreme Court of the United States

OctoBEeR TERM, 1974

No.

LuTHER Estep, a Minor, by JAMES STANLEY, His

Legally Appointed Guardian, Petitioner

Vv.

JANLER Piastic MoLtd Corporation, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

Luther Estep, a minor. by James Stanley, his le-

gally appointed guardian, prays that a writ of certio-

rari issue to review the judgment of the Supreme

Court of Illinois entered in the above entitled case on

May 29, 1974 (infra, pp 1a, 4a).

OPINIONS BELOW

The opinion of the Supreme Court of Illinois is re-

ported at 57 Ill. 2d 395, 312 N.E. 2d 618 (infra, pp. 2a-

0512 - ene acts cee NES SARE Fe

Sbaws a SOs ede

Sea pe Nn

WATE Put ee

“a a ae

2

4a). The opinion of the Appellate Court of Illinois,

First District, is reported at 11 TI, App. 3d 551, 297

N.E. 2d 341 (infra, pp. 4a-6a). The order of the Cir-

-euit Court of Cook County, Illinois, is unreported (in-

fra, p. Ta).

JURISDICTION

The judgment of the Supreme Court of Illinois was

entered on May 29, 1974 (infra, pp. la, 4a). A petition

for rehearing was denied on June 28, 1974 (infra, p.

8a). On September 16, 1974, Mr. Justice William H.

Rehnquist entered an order extending the time within

which to file a petition for a writ of certiorari to No-

vember 12, 1974. The jurisdiction of this court rests

on 28 U.S.C. § 1257(3).

QUESTION PRESENTED

The State'of Mlinois substitutes a system of work-

men’s compensation for a common law action in tort to

indemnify workers for injury or death sustained in an

industrial accident, but preserves the common law rem-

edy in the case of an “illegally employed minor” if he

or his representative files with the Industrial Commis-

sion of Illinois a rejection of workmen’s compensation

benefits within six months after the time of injury or

death. The question presented is whether a minor is

denied due process and equal protection of the law

guaranteed by the Fourteenth Amendment of the

United States Constitution when he is barred from pur-

suing his common law cause of action for personal in-

jury sustained in an industrial accident because he did

not reject his workmen’s compensation benefits within

six months after the time of his injury where (1) no

notice of the six-month rejection requirement was

given him, (2) no guardian had been appointed to act

- A AE PORT, SMEAR NH

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a MOONE GT 1 EASA VISIO ALPE LS Be EL NET AIG LAD RO GEG ENN APSO HSE he

3

for him within the six-month period, and (3) limita-

tions on other actions do not time-bar a minor until

two years after he attains his majority.

STATUTE INVOLVED

The State of Illinois provides by statute that (TI.

Rey. Stat., ch. 48, § 138.5 (1973)):

Any illegally employed minor or his legal rep-

resentative shall, except as hereinafter provided,

have the right within six months after the time

of injury or death, to file with the [Industrial]

Commission, a rejection of his right to the benefits

under this [Workmen’s Compensation] Act, in

which case such illegally employed minor or his

legal representatives shall have the right to pur-

sue his or their common law or statutory remedies

to recover damages for such injury or death.

STATEMENT

On March 10, 1970, petitioner Luther Estep, then a

minor, by his guardian brought a common law action

against his employer in the Cireuit Court of Cook

County, Illinois, to recover for personal injuries he

sustained in an industrial accident. As amended, his

complaint alleges that:

Luther Estep was employed by Janler Plastic Mold

Corporation (Janler), a company engaged in inter-

state commerce, in the business of manufacturing and

fabricating molds for use in making plastie and sundry

products (R. 35-36). Janler hired Estep to work at its

Chicago, Illinois, plant, to assist in maintaining and

cleaning electrically driven machinery, including band

saws (R. 37). On September 26, 1968, then seventeen

years old (R. 38), in the course of maintaining an

electrically power-driven band saw, Estep sustained

PER OAL VOPR AO VET IIR, RAT 9 ee) ee a o

SA Ma aati MRnialin 0s

a severe injury to his left hand, causing its amputation

at the wrist (R. 39).

The complaint further alleges that at the time of

Estep’s hire and injury, section 212(c) of the Fair La-

bor Standards Act of 1938 barred the employment of

‘“fany oppressive child labor’? (29 U.S.C. § 212(e)),

and section 203(1) of that Act defined ‘‘oppressive

child labor’’ as a ‘‘condition of employment under

which . . . any employee between the ages of 16 and

18 years is employed by an employer in any occupation

which the Secreiary of Labor shall find and by order

declare to be particularly hazardous for the employ-

ment of children between such ages or detrimental to

their health or well-being .. .”’ (29 U.S.C. § 203(1));

(R. 37-38) The Secretary of Labor at all material

times found as ‘particularly hazardous for the em-

ployment of minors between 16 and 18 years of age’”’

(1) the ‘‘oceupations of operator of or helper on the

following power-driven fixed or portable machines .. .:

Band saws’’, and (2) the ‘‘occupations of setting-up,

adjusting, repairing, oiling, or cleaning circular saws,

band saws, and guillotine shears’ (29 CFR 570.65;

R. 38). Janler therefore illegally employed Estep in

a particularly hazardous occupation (R. 38-39).

The complaint additionally alleged that on Septem-

ber 23, 1969, James Stanley was appointed to serve

as Estep’s guardian (R. 39). On November 17, 1969,

Stanley filed a ‘‘Rejection of Right To Benefit Under

The Workmen’s Compensation Act’’ with the Indus-

trial Commission of Illinois, stating that Estep ‘‘was

a minor boy ... illegally employed by . . . Janler”’ in-

jured in an industrial accident, and that as guardian

of Estep he ‘‘does hereby reject the rights of said minor

to any benefits under the provisions of the Workmen’s

5

Compensation Act of Illinois, and does hereby elect to

pursue the minor’s common law aud statutory remedies

to recover damages for .. . injuries’’ (R. 14-15, 39-40).

This Rejection invoked scction 5(a) of the Illinois

Workmen’s Compensation Act authorizing an ‘*ille-

gally employed minor or his legal representatives”’

to pursue ‘‘common law or statutory remedies to re-

cover damages for .. . injury or death”’ if a rejection

of workmen’s compensation benefits is filed with the

Industrial Commission ‘within 6 months after the

time of injury or death .. .”” (R. 39, supra, p. 3). The

Rejection, while filed more than six months subsequent

to the time of injury, -vas filed within six months of the

appointment of Stanley to serve as Estep’s guardian

(R. 40). The complaint concluded with a prayer for

relief to compensate Estep for his injury (R. 40).

On April 5, 1970, Janler moved to dismiss the com-

plaint on the ground that the action could not be main-

tained because the Rejection had not been filed within

six months of the injury (R. 17). In opposing the mo-

tion, Estep argued that the six-month period ‘‘does not

begin to run until the appointment of a legal guardian

and that to otherwise bind the minor would be in vio-

lation of the due process clause of the United States

Constitution and the Illinois Constitution .. .’’ (An-

swer to motion, p. 9). The Cireuit Court nevertheless

dismissed the complaint on the limitations ground (i-

fra, p. 7a). On appeal, Estep reiterated that the six-

month period ‘‘did not begin to run until the appoint-

ment of a legal guardian’’ (br. p. 21), and that any

other interpretation would be constitutionally objec-

tionable (br. pp. 2, 18-19). The Appellate Court of

Illinois affirmed the order dismissing the complaint

(infra, p.6a). On further appeal to the Supreme Court

Dee Le ee RT NEL OE OTS Se MB

——————————— er ——“~;3<DCtS

6

of Illinois, Estep again advanced the same arguments,

both statutory (br. pp. 16-23) and constitutional (br.

pp. 2, 16-17, 24), against dismissal of the complaint on

limitations grounds, but the Supreme Court of Illi-

nois affirmed the dismissal judgments (infra, pp. 2a-

4a). No Illinois court during the proceedings ad-

dressed the federal constitutional claim in terms al-

though it had been urged at every stage throughout the

litigation.’

REASONS FOR GRANTING THE WRIT

This case intersects at three points of this Court’s

recent central concern. It requires consideration of

another aspect of the special characteristics of the

young in determining the constitutional protection

available to youth.? It confronts the recurrent ques-

1 Janler had also moved to dismiss the complaint on the ground

that the determination whether a minor was illegally employed

is governed solely by reference to Illinois law to the exclusion of

federal law, and that by Illinois law Estep was not illegally em-

ployed (R. 17). The Circuit Court ordered and the Appellate

Court upheld dismissal of the complaint on this alternative ground

as well as on the limitations ground (infra, pp. 5a, 7a). However,

the Illinois Supreme Court expressly refrained from basing de-

cision on the alternative ground, stating that ‘‘[i]n view of our

holding on the limitations issue, we find it unnecessary to consider

the plaintiff's argument that standards other than the [Illinois]

Child Labor Law .. . are to apply in determining what consti-

tutes an ‘illegally employed minor’ ”’ (infra, p. 4a). Accordingly,

the judgment of the Illinois Supreme Court does not rest on an

independent state ground.

2 E.q., Jimenez v. Weinberger, 42 USLW 4948 (1974) ; Wiscon-

sin v. Yoder, 406 U.S. 205 (1972); In re Winship, 397 U.S. 358

(1970) ; Tinker v. Des Moines School District, 393 U.S. 503 (1969) ;

In re Gault, 387 US. 1 (1967); Tribe, L., Childhood, Suspect

Classifications, and Conclusive Presumptions: Three Linked Rid-

dles, to be published in the forthcoming Winter-Spring 1974

issue of Law and Contemporary Problems.

7

tion of the kind of procedural protection which must

be afforded as the precondition to the extinction of im-

portant interests. And it again puts into issue the

demands of equal protection,’ this time to determine

whether that imperative can be squared with placing

an “‘illegally employed minor”’ in a worse position than

other minors by tolling for other minors, but not for

the illegally employed minor, the running of a limita-

tions period during disability.

1. Illinois substitutes a system of workmen’s com-

pensation for a common law action in tort to indemnify

workers for injury or death sustained in an industrial

accident, but preserves the common law remedy for an

‘illegally employed minor” upon his or his representa-

tive’s rejection of workmen’s compensation benefits

filed with the Industrial Commission within six months

after the time of injury or death. It makes no dif-

ference whether this option to proceed at common law

is ealled the retention of a preexisting remedy to en-

force an ancient right to be free of tortious invasion

of the person, or is described as a newly-created ‘‘stat-

utory entitlement”? (Goldberg v. Kelly, 397 U.S. 254,

262 (1970) ; Fuentes v. Shevin, 407 U.S. 67, 86 (1972)),

3 E.g., Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974) ; Arnett

v. Kennedy, 416 U.S. 135 (1974); Cleveland Board of Education

v. LaFleur, 414 U.S. 632 (1974): U.S. Dep't. of Agriculture v.

Murry, 413 U.S. 508 (1973) ; Viandis v. Kline, 412 U.S. 441 (1973) ;

Perry v. Sindermann, 408 U.S. 593 (1972); Fuentes v. Shevin,

7 U.S. 67 (1972); Stanley v. Mlinois, 405 U.S. 645 (1972); D.

H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972) ; Bell v. Burson,

402 U.S. 535 (1971); Wisconsin v. Constantineau, 400 ~~ 433

(1971) ; Goldberg v. Kelly, 397 U.S. 254 (1970) ; Sniadach ©. Fam-

ily Finance Co., 395 U.S. 337 (1969).

4See Gunther, G., The Supreme Court, 1971 Term—Foreword:

In Search Of Evolving Doctrine On A Changing Court: A

Model For A Newer Equal Protection, 86 Harv. L. Rev. 1 (1972).

p <a

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8

or ‘‘whether the entitlement is denominated a ‘right’

or a ‘privilege’ ”’ (Bell v. Burson, 402 U.S. 535, 539

(1971) ; Goldberg v. Kelly, 397 U.S. 254, 262 (1970)).

For, however characterized, the availability of the op-

tion confers protection of an important interest (to be

compensated for bodily harm wrongfully inflicted) by

a meauis significantly different from any other (a com-

mon law action in tort). The entitlement to this sub-

stantive protection by this procedural means of vindi-

cating it constitutes an equally protectible legal in-

terest whether it has its source in the statute or is

traced to its earlier lineage in the common law. To put

a blunt point to it, the workmen’s compensation bene-

fits for an amputated hand have a value to petitioner

of about $15,000, and counsel informed as to such mat-

ters estimate the recovery at common law for the same

injury to be within the range of $50,000 to $100,000.

A right whose exercise can make a difference of $35,000

to $85,000 constitutes a legally protectible interest by

any measure. Perry v. Sindermann, 408 U.S. 593, 599-

603 (1872); Board of Regents v. Roth, 408 U.S. 564

(1972).

2. Due process is offended by time-barring an il-

legally employed minor in exercising his right to bring

a common law action to recover for injury sustained

in an industrial accident when the minor has not been

informed of the six-month limitations period within

which he must act and no guardian has been appointed

to protect his interests.

Illinois makes no provision for informing a minor

involved in an industrial accident that he has a right,

which he must exercise within six months of his injury,

to proceed at common law to recover damages if he

has been illegally employed. Yet apprisal of the ex-

9

istence of the right and of the time within which it

must be exercised is indispensable to a minor’s actual

realization of its benefits. Notice is of course an ele-

mentary and fundamental requirement of due process.

Mullane v. Central Hanover Bank and Trust Co., 339

U.S. 306 (1950).° And while a limitations period may

run against an adult without notifying him that he has

a right which is subject to defeasance by a time-bar,

it cannot run against a minor because by hypothesis

he lacks competence to manage his affairs with the in-

formed understanding that goes with adulthood.°

5 See also, Paschall v. Christie Stewart, 414 U.S. 100 (1973) ;

Robinson v. Hanrahan, 409 U.S. 38 (1972); Schroeder v. New

York, 371 U.S. 208 (1962); New York v. New York, New Haven

& Hartford R. Co., 344 U.S. 293, 296-297 (1953).

6 Like all States, Illinois treats minors as legally incompetent.

Ill. Rev. Stat., ch. 3, §§ 131, 141 (1973). Minors cannot commence

or defend suits in their own names. They must have a guardian,

next friend, or guardian at litem for this purpose. Id. § 141;

Stanczyk v. Keefe, 384 F.2d 707, 708 (C.A. 7, 1967). The Pro-

bate Act places courts under a duty to protect the interests of

minors which may be affected by judicial proceedings by provid-

ing for the appointment of a guardian. Illinois makes exceptions

to its general statutes of limitations for minors. Thus, the limi-

tations periods for both real and personal actions are tolled for

minors until their disability is removed, notwithstanding that more

than the full period of limitations may otherwise have run. III.

Rev. Stat., ch. 83 §§ 9, 22 (1973) ; Stanczyk v. Keefe, supra. See

infra, pp. 1i-13.

Federal policy is in accord in providing special protection

for minors in judicial proceedings. The court shall appoint

a guardian ad litem to represent a minor not otherwise rep-

resented by a fiduciary or shall otherwise provide for his pro-

tection. Fed. R. Civ. Proe. 17(e); Roberts v. Ohio Casualty Ins.

Co., 256 F.2d 35, 38-39 (C.A. 5, 1958); Wright & Miller, Federal

Practice and Procedure: Civil, Vol. 6, § 1570, pp. 775-776 (West,

(1971)). A default judgment may not be entered the clerk

against an infant, or by the Court unless the infant is represented

in the cause by a guardian or other such representative. Fed. R.

Civ. Proe. 55(b).

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Given his incompetence, the minimum that due proc-

ess requires as the precondition to divesting the minor

of his right is provision for some adequate means of

informing him of its existence and its limitations, so

that he may at least be alerted to the need to consult an

adult about a matter important to him. But Illinois

makes no provision for notice of any kind.

Notice is a minimum requirement of due process but

would not in itself suffice in the case of a minor. ‘‘No-

tice to a person known to be*an incompetent who is

without the protection of a guardian does not measure

up to this requirement.’’ Covey v. Town of Somers,

351 U.S. 141, 146 (1956) ; Robinson v. Hanrahan, 409

U.S. 38, 40 (1972). Like others under a disability, a

minor as an incompetent person is by definition ‘‘with-

out mental capacity to handle . . . [his] affairs or to

understand the meaning of any notice served upon’’

him. Covey v. Town of Somers, supra. The brightest

youth does not ordinarily have the knowledge, expe-

rience and sophistication essential to an informed

judgment as to whether he is an “illegally employed

minor,”’ and, if he is, whether he is better served by

opting for the lesser but safer workmen’s compensa-

tion benefits or the greater but riskier recovery through

pursuing a common law action. The appointment of

a guardian is the means by which this gap in under-

standing is bridged when a minor is called upon to

make an adult decision. Yet Illinois allows a time-bar

to cut off a minor’s right although he is without the

protection of a guardian during the period that limita-

tions are running.

The absence of any provision for notiée plus the ab-

sence of any protection afforded by guardianship is

a compounded vice which cannot survive the require-

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ment of due process of law. It of course will not do

to say that, as Illinois could have wholly remitted an

illegally employed minor to his workmen’s compen-

sation remedy, it was free to create a right in him to

proceed at common law without also providing that lim-

itations would not run on the exercise of that right

absent notice or guardianship. For the conferment

of a right requires as a matter of due process the es-

tablishment of a means sufficient to assure its realiza-

tion. Arnett v. Kennedy, 416 U.S. 134 (1974). What-

ever its source, so long as the right is in being, the ben-

eficiary of it must be ‘afforded . . . some real oppor-

tunity to protect it.’ Brinkerhoff-Faris Trust & Sav-

ings Co. v. Hill, 281 U.S. 673, 682 (1930). The dig-

nity of the rule of law will not tolerate the farce of

creating a right without providing the means of vindi-

cating it.

3. Denial of equal protection accompanies denial

of due process. For, unlike the illegally employed

minor sustaining an injury in an industrial accident,

Illinois tolls its general statutes of limitations for all

other minors and other incompetent persons during the

period of their incapacity and allows them to ‘‘bring

the action within two years after the disability is re-

moved’? (Ill. Anno. St., ch. 83, § 22 (Smith-Hurd,

1966) ) :

If the person entitled to bring an action, mentioned

in the nine preceding sections, is, at the time the

eause of action accrued, within the age of twenty-

one years, or if a female, within the age of eigh-

teen years, or insane, mentally ill, or imprisoned

7 Opinion of Marshall, J., in which Douglas and Brennan JJ.,

joined (416 U.S. at 206); opinion of Powell, J., joined by Black-

mun, J. (id. at 164) ; opinion of White, J. (id. at 171).

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on a criminal charge, he or she may bring the ac-

tion within two years after the disability is re-

moved.*

Limitations thus do not act as a time-bar until two

years after a minc: reaches his majority in actions

for defamation or violation of the right to privacy

(§ 14), for personal injury, false imprisonment, ma-

licious prosecution, statutory penalties, abduction, se-

duction, or criminal conversation (§ 15), on oral con-

tracts, on arbitration awards, and for damage to real

or personal property, recovery of possession of per-

sonal property or damages for its retention or conver-

sion, and on claims not otherwise provided for (§ 16),

on written contracts of every variety (§ 17), and on

claims in other situations (§§ 18-21). Similarly, a mi-

nor may not be time-barred from making entry on land

and bringing an action on or for land until two years

after he reaches his majority (§9). So too, while the

precondition of an action for personal injury against a

municipality is notice to the municipality of an inten-

tion to sue filed within six months of the injury, this re-

quirement does not apply to a minor, the Illinois Su-

preme Court observing that it ‘‘is not improper to say

that if the construction ... [requiring notice by a mi-

nor] were adopted it would undoubtedly render the

act unconstitutional as depriving . . . [the minor] of

due process of law.’? McDonald v. City of Spring

Valley, 285 Ill. 52, 55, 120 N.E. 476, 477 (1918). Fi-

nally, the precondition to bringing an action against

8 Effective July 1, 1972, this section was amended to reduce to

18 the age when a male reaches majority. Ill. Rev. Stat., ch. 83,

§ 22 (1973). The amendment is not relevant to this case for,

even were it in effect when the accident occurred, petitioner’s ac-

tion would have been time-barred before he reached 18.

ee ee Re ee

13

a public or private school for personal injury or prop-

erty damage is the giving of written notice to the ap-

propriate school representative within six months of the

event, but this requirement is not applicable to minor

claimants, the Illinois Supreme Court observing that

were notice to be exacted of a minor ‘‘the Legislature

could have provided for notice by next friend or legal

guardian... .’’ Haymes v. Catholic Bishop of Chicago,

33 Ill. 2d 425, 428, 211 N.E. 2d 690, 692 (1965).

The upshot is that the illegally employed minor in-

jured in an industrial accident stands in virtual isola-

tion from all other minors in running limitations

against him during his disability. This discrepant

treatment is invalid whether equal protection is mea-

sured by the standard of “‘rational basis,”’ or ‘“com-

pelling interest,” or an in-between blend that propor-

tions the allowable latitude of a classification to the

importance of the affected interest. Whatever the

standard equal protection cannot sanction the discrim-

ination which inheres in imposing the time-bar during

the disability vf an illegally employed minor but tolling

it for all other minors in virtually all other actions.

There is no conceivable basis in reason for putting an

illegally employed minor in this inferior position. An

Illinois minor injured in an automobile accident can

defer bringing his action until he has attained his ma-

jority plus two years (Stanczyk v. Keefe, 384 F.2d 707,

708 (C.A. 7, 1967)), but an illegally employed minor

injured in an industrial accident must willy-nilly act

within six months of his injury. This differentiation is

‘entirely arbitrary”? (Smith v. Cahoon, 283 U.S. 553,

566-567 (1931) ), not ‘‘ ‘based on a real and substantial

relation to the subject of the particular legislation’ ”’

(Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389,

ea ee

14

400 (1928)), and constitutes therefore invidious dis-

crimination offensive to equal protection.

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be granted.

EUGENE I. PAVALON

PETER B. CAREY

228 North LaSalle Street

Chicago, Illinois 60601

BERNARD DUNAU

912 Dupont Circuit Building,

N.W.

Washington, D. C. 20036

Attorneys for Petitioner.

November 1974

APPENDIX

la

APPENDIX

Opinion

SUPREME COURT OF ILLINOIS

UNITED STATES OF AMERICA

State of Illinois

Supreme Court

At a Term or THE Supreme Court, begun and held in

Springfield, on Monday, the thirteenth day of May in the

year of our Lord, one thousand nine hundred and seventy-

four, within and for the State of Illinois.

Present: Rosert C. UNpDERWoop, CuleEF JUSTICE

Justice WALTER V. SCHAEFER

Justice Dantet P. Warp

Justice JosEpH H, GoLDENHERSH

Justice THomas EK. Kivuczynski

Justice CHares H, Davis

Justice Howarp C, Ryan

Wun J. Scott, AtrorRNEY GENERAL

Wii G. Lyons, MarsHan

Attest: Justin Tart, CLERK

Be Ir Rememserep, that afterwards, to-wit, on the 29th

day of May, 1974, the opinion of the Court was filed in said

cause and entered of record in the words and figures fol-

lowing, to-wit:

No. 45930

Luruer Estep, a minor, ete., Appellant

vs.

JANLER Piastio Motp Corporation, Appellee

Appeal from Appellate Court, First District

Justin Taft

Clerk of the Supreme Court

State of Illinois

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Docket No. 45930—Agenda 24—March, 1974.

LutuHER Estep, Appellant,

v.

JANLER Piastic Motp Corporation, Appellee.

Mr. Justice Davis delivered the opinion of the court:

This case asserts a common-law action for injuries suf-

fered by a minor while employed by the defendant corpo-

ration under the Illinois Workmen’s Compensation Act.

(ill. Rev. Stat. 1967, ch. 48, par. 138.1 et seq.) The minor

was 16 years of age when he was injured, and after a

guardian was appointed, a rejection of workmen’s com-

pensation benefits was filed on the minor’s behalf. This

suit was then brought in the circuit court of Cook County.

That court granted the defendant’s motion to strike or

dismiss the plaintiff’s amended complaint, and the appel-

late court affirmed (11 Ill. App. 3d 551). We granted leave

to appeal.

The plaintiff was injured while doing work in connection

with the cleaning and maintenance of a band saw. The

defendant does not deny that such work was prohibited by

the regulations adopted pursuant to the Federal Fair La-

bor Standards Act of 1938 (29 U.S.C. sees. 212(c), 203()

(1970).) The plaintiff argues (1) that his rejection of

workmen’s compensation benefits was timely made since

it was made within 1 month after the appointment of a

guardian, and (2) that the provisions of the Fair Labor

Standards Act are applicable to the term ‘‘illegally em-

ployed minor’’ under the Workmen’s Compensation Act.

We will consider first the question of whether the rejection

of benefits was timely filed.

The plaintiff alleges that the 6-month period for rejec-

tion of benefits does not run until the appointment of a

guardian. He contends that minors are under a legal dis-

ability and do not have the power to reject their rights

OPEL Oy ee el ea ee Pee Sere sre ere.

3a

under the Act, and urges that rejection of benefits by the

guardian, in less than a month after his appointment, even

though more than 6 months after the injury, is timely.

In Ferguson v. Industrial Com. (1947), 397 Ill. 348, 352,

the court held that the requirement that notice of an injury

must be given to the employer within 30 days of that in-

jury applies to minors on the grounds that the Act created

a special statutory cause of action unknown at common

law, and, ‘‘The commission, a creature of the statute, is

not a court. It is an administrative body charged with the

duty of administering the act under which it was created.

The liability or nonliability of an empioyer is one imposed

by the act itself, and unless an employee, claiming the right

to an award, brings himself within the jurisdictional pro-

visions of the act, no award can be granted him. (Keller

v. Industrial Com., 350 Til. 390.)’’

In Johnson v. Industrial Com. (1972), 53 Tll.2d 23, 24,

it was held that the 1-year-limitation provision of the Act

was applicable to minors on the authority of Ferguson.

The distinction between jurisdictional requirements and

limitations provisions was explicitly rejected. The ra-

tionale of Ferguson and Johnson dictates that we hold

here that the 6-month period for the rejection of benefits

runs from the time of the injury, not from the time of

appointment of a guardian. Therefore, the plaintiff here

did not timely reject his benefits under the Workmen’s

Compensation Act, and that act is his sole remedy for

damages suffered due to this injury. (Ill Rev. Stat. 1967,

ch. 48, par. 138.5.) The circuit court was correct in grant-

ing the defendant’s motion to dismiss the amended com-

plaint. The court in Johnson concluded its dissertation on

the limitation provisions, at page 27, as follows:

‘** Accordingly, we hold that appellant, although a

minor, was bound by the one-year limitation of the

Act, and having failed to file within the specified time

limit his applications were properly dismissed.”’

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4a

In view of our holding on the limitation issue, we find

it unnecessary to consider the plaintiff’s argument that

standards other than the Child Labor Law (Ill. Rev. Stat.

1967, ch. 48, par. 31.1 et seq.) are to apply in determining

what constitutes an ‘‘illegally employed minor.’’

We, therefore, hold that the amended complaint was

properly dismissed, and the judgments of the appellate and

cireuit court are therefore affirmed.

Judgments affirmed.

36357

Luruer Estep, a minor, by James Stan ey, his legally

appointed guardian, Plaintiff-A ppellant,

Vv.

JANLER Piastic Motp Corporation, a corporation,

Defendant-A ppellee.

Appeal from Circuit Court of Cook County.

Honorable Ben Schwartz, Presiding.

Mr. Presipine Justice Drucker delivered the opinion of

the court:

Plaintiff appeals from an order dismissing his amended

complaint. Plaintiff was injured on September 26, 1968,

while employed by defendant to maintain an electrically

powered band saw. At the time of the injury plaintiff was

17 years of age. Contending that he was an ‘‘illegally

employed minor,”’ plaintiff rejected his rights to benefits

under the Workmen’s Compensation Act and proceeded

against defendant in an action for damages as permitted

by Section 5(a) of the Act. Defendant moved to dismiss

plaintiff’s amended complaint, arguing that he was not an

‘illegally employed minor’’ and hence not eligible to reject

his Workmen’s Compensation benefits and that plaintiff

5a

had failed to file his rejection of the benefits within the six

month period prescribed by Section 5(a) of the Act.

The complaint was dismissed and plaintiff urges on ap-

peal that his rejection of benefits as an illegally employed

minor was timely filed.

Section 5(a) of the Illinois Workmen’s Compensation

Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.5) permits an

‘illegally employed minor or his legal representatives,”’

within six months from the date of injury, to reject his right

to benefits under the Act and to pursue a common law or

statutory remedy to recover damages for such injury.

Plaintiff maintains that he was an “illegally employed

minor’’ because his employment constituted ‘‘oppressive

child labor’? which as defined by the federal Fair Labor

Standards Act of 1938 can, under certain circumstances,

cover employees between the ages of 16 and lf years.

29 U.S.C. §§ 203(1), 212(c) and Order 14 of the Secretary

of Labor, 29 CFR, ch. V, Part 570, § 570.65; CCH Labor

Law Reporter, Vol. 1, { 23,720.51.

James Stanley was appointed plaintiff’s guardian on

September 23, 1969. The rejection of the workmen’s com-

pensation benefits was filed with the Illinois Industrial

Commission on November 17, 1969. This common law

cause of action was commenced on Mareh 10, 1970.

We cannot accept plaintiff’s contention that the federal

Fair Labor Standards Act definition of the term ‘‘oppres-

sive child labor’’ is controlling in our interpretation of the

Illinois Workmen’s Compensation Act's use of the term

‘illegally employed minor.’’ Rather do we look for such

assistance to the Illinois Child Labur Law (IIL Rev. Stat.

1967, ch. 48, par. 31.1) which provides that a minor under

16 years of age cannot be lawfully employed to do the kind

of work engaged in by plaintiff. Since plaintiff was 17 at

the time of the injury, he was not an “illegally employed

minor.’’

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But even if we were to accept plaintiff’s contention

(which is denied by defendant) that plaintiff was an ille-

gally employed minor for purposes of Section 5(a), we

would still be compelled to affirm the dismissal of the com-

plaint. Section 5(a) of the Workmen’s Compensation Act

specifically states that the rejection of benefits under the

Act must be filed by the minor or his legal representatives

‘‘within 6 months of the time of injury or death.’’ In the

case at bar plaintiff was injured on September 26, 1968.

His guardian who was appointed on September 23, 1969,

did not file a rejection of the Workmen’s Compensation

benefits with the Industrial Commission until November 17,

1969. We disagree with plaintiff’s argument that the six

month period begins to run from the date on which a

guardian is appointed. The six month period begins to

run from the date on which the employee is injured, not

the date on which a guardian is appointed. Cadwell vy.

National Tea Co., 343 Ill. App. 206, 98 N.F.2d 516. There-

fore, even if plaintiff was an illegally employed minor, his

rejection of the right to benefits under the Workmen’s

; peg cp Act was not filed within the prescribed pe-

riod. Thus on this ground also plaintiff’s complaint must

Pail.

The judgment is affirmed.

A firmed.

English and Lorenz, JJ., concur.

ee

7a

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

No. 70 L 3412

Lutuer Estep, a minor, etc., Plaintiff

Vv.

JANLER Piastic Motp Corp., a corporation, Defendant

Order

The motion of Janler Plastic Mold Corporation coming

on for hearing on due notice and the Court being fully

advised in the premises;

Ir Is Heresy Orpverep, that based on Cadwell v. Na-

tional Tea Co., 343 Il. App. 206 (1951), Ferguson v. In-

dustrial Commission, 397 Ill. 348, and Neville v. Wichita

Kigle, Inc., 179 Kans. 197, 294 P.2d 248 (1956), Defend-

ant’s Motion to Strike or Dismiss plaintiff’s Amended

Complaint is sustained.

It is further ordered and adjudged that the cause be and

is hereby dismissed and that the plaintiff take nothing

from said defendant and that said defendant go hence

without day.

Name Lord, Bissell & Brook

Attorney for Defendant

Address 1358S. La Salle

City Chicago, IL

Telephone

Vnblcbakeieetackalnkeesunnanan » 19.

Judge

Cireuit Court

June 15, 1971

Judge Ben Schwartz

Matthew J. Danaher, Clerk of the Cireuit Court

of Cook County

8a

STATE OF ILLINOIS

OFFICE OF CLERK OF THE SUPREME COURT

SPRINGFIELD 62706

June 28, 1974

Asher, Greenfield, Gubbins & Segall

Attorneys at Law

228 North LaSalle Street

Chicago, Ill. 60601

No. 45930—Luther Estep, a minor, ete., appellant, vs. Janler

Plastic Mold Corporation, a corp., appellee.

Appeal, Appellate Court, First District.

You are hereby notified that the Supreme Court, today

denied the petition for rehearing in the above entitled

cause.

Very truly yours,

/s/ Justin Tarr

Clerk of the Supreme Couri

SBE D eos 5