Petition for Writ of Certiorari — Pudlo v. City of Chicago

Supreme Court, u.S.

(\) F > & Dp

95-359 AUG 35 0 1995

fh

NWOEICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

THADDEUS PUDLO,

Petitioner,

vs.

CITY OF CHICAGO,

A Municipal Corporation,

Respondent.

Petition for Writ of Certiorari to the

Appellate Court of Illinois,

First District, Third Division

PETITION FOR WRIT OF CERTIORARI

DENNIS DOHERTY FREDERICK F. COHN

Of Counsel Attorney for Petitioner

205 West Wacker Drive

Suite 1515

Chicago, IL 60606

312/580-0935 312/641-0692

i

(la) QUESTIONS PRESENTED

i. (A) Does Due Process require

that state reviewing courts waive strict

compliance with procedural rules in

order to do substantial justice?

(B) Is Due Process violated by

the Illinois Appellate Court’s dismissal

of petitioner’s appeal on jurisdictional

grounds, where notice of appeal (the

only jurisdictional step) was timely,

and petitioner complied with all

applicable requirements after he finally

received notice of the order dismissing

the appeal for want of prosecution?

2. Must appeals in ordinance

violation cases that subject the

defendant to the possibility of

imprisonment, be governed by principles

of fundamental fairness and due process

applicable to criminal matters?

a Nh eg

ii

(1b) PARTIES INVOLVED (per Rule 21.1(b)]

Petitioner, Thaddeus Pudlo, was the

defendant in the Circuit Court of Cook

County, Illinois, appellant in the

Appellate Court of Illinois, First

Judicial District, Third Division, and

petitioner in the Supreme Court of

Illinois.

Respondent, City of Chicago,

Illinois, was the plaintiff in the

Circuit Court, appellee in the Appellate

Court of Illinois, and respondent in the

Supreme Court of Illinois.

iii

(1c) TABLE OF CONTENTS PAGE

Questions Presented. ........ i

WOEGAOR Twelve . . 6 2 ce te te et A

Tebie@ Of Contents. . « « « « « « « chiki

Judgment Below “ae 2th ok ae, ee et oe a oe

Table of Authorities ........vi

Judgment and Opinion Below ..... 2

Jurisdictional Statement ...... 2

Constitutional Provisions. ..... 3

Statement of the Case. ....... 5

Raising the Federal Question Below . 12

Reasons for Granting Certiorari .. 14

1. (A) Due Process requires

that state reviewing courts waive strict

compliance with procedural rules in

order to do substantial justice. .. 14

(B) Due Process is violated by

the Illinois Appellate Court’s dismissal

of petitioner’s appeal on jurisdictional

iv

grounds, where notice of appeal (the

only jurisdictional step) was timely,

and petitioner complied with all

applicable requirements after he

finally received notice of the order

dismissing the appeal. ....... 14

2. Appeals in ordinance violation

cases that subject the defendant to the

possibility of imprisonment, must be

governed by principles of fundamental

fairness and due process applicable

to crimingl meGCtere« « 2 « «+ « « 6 we BF

Commie. s 5 a es 6 OF ad es a a ee

Appendices:

A. Order of the Illinois

Appellate Court, filed February 15,

ees bees ores oP eae ee

B. Order of the Supreme

Court of Illinois dated June l,

1995, denying petition for leave

to appeal . «ce eee eee s

. App. 11

Vv

(1d) Judgment Below

The Opinion of the Appellate Court

of Illinois, First Judicial District,

Third Division, No. 1-92-4474, is

attached as Appendix A to this Petition.

It is reported at 271 I1l.App.3d 679,

648 N.E.2d 135.

vi

TABLE OF AUTHORITIES PAGE

Cases

Vv ’

212 I11.App.3d 287,

569 N.E.2d 1125 (5 Dist. 1991) 34

’

225 I11.App.3d 195,

587 N.E.2d 1089 (1 Dist. 1992) 27

, 421 U.S. 519,

44 L.Ed.2d 346 (1975) 22

Chambers v. Mississippi, 410 U.S.

284, 35 L.Ed.2d 297 (1973) 18-19

Chicago v. Drovers National Bank,

Trustee, 36 I11.App.3d 296,

343 N.E.2d 632 (1 Dist. 1976) 25

Chicago v. Prus, 117 Ill.App.3d 455,

453 N.E.2d 776 (1 Dist. 1983) 34

Chic v. Pudlo, 271 I11.App.3d 679,

648 N.E.2d 135 (1 Dist. 1995)

VV, 2, ia, 19, AS

Cra Vv , 476 U.S. 683,

90 L.Ed.2d 636 (1986) 18

Davi Vv , 415 U.S. 308,

39 L.Ed.2d 347 (1974) 18

Davis v. Lane, 814 F.2d 397

(7 Cir. 1987) 31

vii

Elgin v. Hawthorne, 204 111.App.3d 807,

562 N.E.2d 670 (2 Dist. 1990) 34

, 469 U.S. 387,

83 L.Ed.2da 821 (1985) 47,37. 30

, 407 U.S. 67,

32 L.Ed.2d 556 (1972) 31

Grady v. Corbin, 495 U.S. 508,

109 L.Ed.2d 548 (1990) 33

Hilton v. Braunskil, 481 U.S. 770,

95 L.Ed.2d 724 (1987) 40

In re Baker, 71 I1l.2d 480,

376 N.E.2d 1005 (1978) 24

Inglese v. Warden, 687 F.2d 362

(11 Cir. 1982) 41

wW ,

399 F.Supp. 1298

(S.D.N.Y. 1975) 40

Kuhlmann v. Wilson, 477 U.S. 436,

91 L.Ed.2d 364 (1986) 40

McCleskey v. Zant, 499 U.S. 467,

113 L.Ed.2da 517 (1991) 40

es & ar : i,

158 Ill.2d 143,

632 N.E.2d 1010 (1994) 34

Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306,

94 L.Ed. 865 (1950) 30

viii

, 60 Ill.2d 579,

328 N.E.2da 555 (1975) as, 27

, 46 I1ll.2d 147,

263 N.E.2d 80 (1970) 33, 39

» 59 I11.2d 580,

322 N.E.2da 473 (1975) 28

Pp , 30 I1l.App.3d 289,

332 N.E.2d 716 (1 Dist. 1978) 20

P Vv

201 I11.App. 3a. 411,

559 N.E.2d 11 (1 Dist. 1990) 33

2 Vv. Cc , 61 I1l.2d 590,

338 N.E.2d 161 (1975) 19

a Vv , 104 I11.2d 268,

472 N.E.2d 455 (1984) 26

Peo Vv US, 66 I1ll.App.3d 986,

384 N.E.2d 568 (3 Dist. 1978) 20

People v. Mims, 82 I1ll.2a 63,

411 N.E.2d 215 (1980) 19

People v. Moore, 133 I1l.2d 331,

549 N.E.2d 1257 (1990) 6, 37

People v. Scott, i143 Ill. App.3d 540,

493 N.E.2d 27

(1 Dist. 1986) 26,37

e i j Vv. New Yo

e, 391 Ill. 377,

63 N.E.2d 405 (1945) 28-29

ix

Peoria v , 215 I11.App.3d 440,

574 N.E.2da 1334 (3 Dist. 1991)

Robinson v. O’Neil, 409 U.S. 505,

35 L.Ed.2d 29 (1973)

Schlup v. Delo, 513 U.S. ’

130 L.Ed.2d 808, 831 (19

Stone v. Godbehere, 894 F.2d 1131

(9 Cir. 1990)

Waller v , 0 ee. 3

25 L.Ed.2d 435 (1970)

95)

87,

Woodson v. Chicago Bd. of Educ.,

154 I11.2d 391, 609 N.E.2d 318

(1993) 15, 20, 25,

Constitutional Provisions

U.S. Const., 4th Amend. 3, 6, 7,

U.S. Const., 5th Amend.

U.S. Const., 6th Amend. fee P

U.S. Const., 14th Amend. 4, 13,

Le, Bee

See ate

Statutes and Rules

28 U.S.C. § 1257 (a)

Supreme Court Rule 10.1

33,

32,

13,

34

33

40

32

39

x

Supreme Court Rule 12.1

Supreme Court Rule 13.1

730 ILCS 5/5-1-18.1

730 ILCS 5/5-5-9

I11l.Sup.ct.R. 214

Ill.Sup.ct.R. 219

I1l.Sup.ct.R. 301

I11l.Sup.cC.R. 303(a) (1)

Ill.Sup.ct.R. 367 & 367(a) 9,

I11l.Sup.ct.R. 606(a)

Municipal Code of Chicago, secs:

1-4-120

4-344-610

5-4-080

5-4-090

7-28-040

7-28-060

7-28-240

7-28-450(a)

14,

26

23

23

23

xi

7-28-450(b) 7

13-196-580(d) 7

13-196-620(a) 7

~J

13-196-630(b)

15-4-970 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

THADDEUS PUDLO,

Petitioner,

vs.

CITY OF CHICAGO,

A Municipal Corporation,

Respondent.

Petition for Writ of Certiorari to the

Appellate Court of Illinois,

First District, Third Division

Petitioner, Thaddeus Pudlo,

(hereafter, defendant), prays that a

Writ of Certiorari issue to review the

judgment of the Appellate Court of

Illinois, First District, Third

Division, dismissing his appeal from a

judgment of the Circuit Court of Cook

County finding him guilty of multiple

ordinance violations and imposing fines

2

under the Municipal Code of Chicago

{hereafter, "Code"].

Defendant was found guilty of 113

separate Code violations (C. 3791) and

fined a total exceeding 4.3 million

dollars. (C. 379-405)

Judgment and Opinion Below

The Opinion of the Appellate Court

of Illinois, First District, Third

Division, dismissing the appeal, is set

out as App. A. The Opinion is reported

at 271 I1l1.App.3d 107, 648 N.E.2d 679.

Jurisdictional statement

On February 15, 1995, the Appellate

Court of Illinois, First District, Third

Division, filed its Opinion (App. A;

App. 1) dismissing the appeal. No

1 Here and hereafter: "C." refers

to the Common-Law Record.

3

Petition for Rehearing was filed.

Petition for Leave to Appeal to the

Supreme Court of Illinois, No. 78682,

was denied on June 1, 1995. (App. B;

App. 11)

This Petition for Certiorari is

timely filed within 90 days thereafter.

Jurisdiction is invoked under 28

U.S.C. § 1257(a) and Rules 10.1, 12.1,

and 13.1 of this Court.

Constitutional Provisions

The 4th Amendment to the U.S.

Constitution provides.

"The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and

seizures,shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by Oath

or affirmation, and particularly

describing the place to be

searched, and the persons or things

to be seized."

4

The 5th Amendment to the U.S.

Constitution provides, in part:

"nor shall any person be

subject for the same offense

to be twice put in , Jeopardy of

life or limb...

The 6th Amendment to the U.S.

Constitution provides, in part:

"In all criminal prosecutions,

the accused shall enjoy the

right .. . to be confronted

with the witnesses against

him; .. . and to have the

Assistance of Counsel for his

defence."

The 14th Amendment to the United

States Constitution provides, in

pertinent part:

"Section 1. .. . No State shall

. deprive any person of life,

liberty, or property, without due

process of law; . .

was abet

OOS hd telah ie

>

STATEMENT OF THE CASE

Petitioner, Thaddeus Pudlo

(hereafter, defendant] was convicted of

113 Code violations? relative to his

maintenance of real [business] property,

and fined in excess of 4.3 million

dollars. (C. 379-405) The Appellate

Court (App. A) dismissed the appeal on

jurisdictional grounds.

Had the Appellate Court reached the

merits, the issues to be decided (as

presented in Defendant’s Brief) were:

(1) The cause below was

voluntarily dismissed by the plaintiff,

and never reinstated thereafter.

Accordingly, the court was without

jurisdiction to enter its "final

judgment," and the judgment below should

therefore be reversed. (Def. Br. p. 6)

2 That is, Municipal Code of

Chicago. A detailed list of all 113

violations was attached to Defendant’s

Brief in the Appellate Court [hereafter,

Def. Br.] as Appendix G, pp. 1-7.

6

(2) Defendant was punished and

sanctioned unconstitutionally for the

mere assertion of his rights under the

4th Amendment to the U.S. Constitution

and Article 1, section 6 of the Illinois

Constitution of 1970. (Id. at 10)

(3) Assuming, arguendo, defendant

had no constitutional right to refuse to

consent to a search of his premises, the

court abused its discretion in imposing

sanctions which were unduly excessive

and severe. [The sanctions included,

that defendant was barred, not only from

litigating a 4th Amendment-based Motion

to Suppress, but also, from defending

himself in any fashion.] (Id. at 15)

Among the ordinances for violation

of which defendant was prosecuted, some

provide for punishment greater than a

fine - to which greater punishment(s)

defendant was in jeopardy of being

subjected in the underlying proceedings.

To wit: The following section, under

which defendant was prosecuted and

convicted, provides for a fine, and/or

public service, and/or up to 30 days in

Sit: aban Sal ica aden eike ins

7

jail: 7-28-040. The following section,

under which defendant was prosecuted and

convicted, provides for a fine, and/or

public service, and/or up to 10 days in

jail: 7-28-060. The following sections,

under which defendant was prosecuted and

convicted, provide for fines, and/or

terms of public service: 4-344-610; 5-4-

080; 5-4-0090; 7-28-240; 7-28-450(a); 7-

28-450(b); 7-28-040; 13-196-580(d); 13-

196-620(a); 13-196-630(b); and 15-4-970.

Defendant refused to consent to a

search of his premises under I11l.Sup.ct.

R. 217, and was sanctioned under Ill.

Sup.Ct.R. 219. (C. 321-27; C. 379-405)

Among the sanctions were that defendant

was barred, not only from litigating a

Fourth Amendment-based Motion to

Suppress, but also, from defending

8

himself in any fashion.

Timely notice of appeal was filed

on December 15, 1992, from the final

judgment of the Circuit Court entered on

November 17, 1992; the record was duly

filed; and, when defendant sought to

file a motion for leave to file his

docketing statement instanter, he first

discovered that the appeal had been

dismissed (DWP) on the Appellate Court’s

own motion by order entered September

30, 1993. Defendant moved to vacate

the dismissal and reinstate the appeal

on December 2, 1993, which motion was

granted by the Appellate Court on

December 16, 1993. (See App. 2-3.)

Moreover, when the City (Appellee)

moved for an order vacating the order

reinstating the appeal, the Appellate

9

Court on February 18, 1994, denied the

motion, thus reaffirming its order

reinstating the appeal. In defendant’s

pleadings resisting the re-dismissal of

the appeal, he reasserted via affidavit

that he had no timely knowledge or

notice of the DWP, that he moved to

vacate the DWP within 21 days of

receiving notice thereof, and further,

the additional, compelling fact that

counsel was seeking mandamus to compel

the court reporter to furnish paid-for

transcripts. (See fn. 4, p. 11, infra.)

After defendant timely filed his

notice of appeal, the appeal was

dismissed for want of prosecution; no

Petition for Rehearing was filed within

21 days thereof as per I11.Sup.ct.Rule

367(a), for appellant received no

10

notification of the said dismissal?;

and, diligently upon discovering that

the appeal had thus been dismissed, and

within 21 days of actual notice, albeit

not within 21 days of entry of the

dismissal order, appellant successfully

moved to vacate the dismissal, and

thereafter, successfully opposed

Appellee’s Motion to reinstate the order

of dismissal, setting out compelling

reasons which [initially] convinced the

Appellate Court to vacate the

dismissal order, reinstate the appeal

3 These facts - see fn. 4, p. 11,

infra - are averred in pleadings on file

in the Appellate Court, via Affidavit of

appellate counsel Dennis Doherty [of

counsel in this Petition] in support of

defendant’s Motion for Leave to File

Appellant’s Response to Appellee’s

Motion to Reinstate Order Dismissing

This Appeal and Objection to Appellant’s

Motion for Extension of Time.

11

and accept for filing, Briefs of both

parties on the merits.* Accordingly,

4 In his verified Motion for Leave

to file Response, defendant averred:

that he was never given notice of the

September 30, 1993 order dismissing the

appeal for want of prosecution; that no

notice of that order was ever sent to

him; that he first learned of the DWP

order when filing motion for leave to

file docketing statement instanter; that

counsel for appellee telephoned his

counsel and informed him of the DWP

order; and that he filed his motion to

vacate DWP order and reinstate appeal,

within 21 days of receiving notice of

said order.

When Appellee sought to have the

Appellate Court reinstate its prior

order of dismissal, which by then had

been vacated, the Record on Appeal and

the docketing statement had been filed.

Defendant’s reason for seeking an

extension, and for failure to have

timely filed his Brief before the DWP

order was entered, was difficulty in

obtaining transcripts from the official

court reporter, against whom he sought

Mandamus relief, both from the Appellate

Court (within the aforesaid Motion for

Leave to File Response), and also via

independent proceedings, Dennis Doherty

v. Monica Lewis, et al., in the Circuit

Court of Cook County, Illinois, No. 94

CH 1926.

12

the parties proceeded to file their

Briefs on the merits. (See pp. 5-6,

supra, setting out issues raised.)

Nonetheless, the Appellate Court in

its Opinion declined to reach the

merits, and instead, ruled it had no

jurisdiction to proceed with the appeal,

and, accordingly, dismissed the appeal.

(App. 10; 648 N.E.2da at 137)

RAISING THE FEDERAL QUESTION BELOW

In the Circuit Court, defendant

refused to consent to a search of the

subject premises, that is, refused to

permit inspections of his property

sought by the City pursuant to statutory

discovery procedures, I1ll.Sup.Ct.R. 214,

I1l.Rev.Stat. ch. 110A, sec. 214,

relying on and invoking his federally

guaranteed constitutional rights under

13

the 4th Amendment and to due process.

In the Appellate Court of Illinois,

defendant argued that he was

unconstitutionally and unconscionably

punished, penalized and sanctioned for

mere assertion of a constitutional

right. (Def. Br. Point 2, pp. 10-14)

In the Supreme Court of Illinois,

defendant argued that the Appellate

Court’s order dismissing the appeal

violated his rights to due process of

law (notice; right to be heard); that

due process and fundamental fairness

required that the merits of the appeal

be reached; and that due process

required that the appeal be treated

as per due process principles applicable

to criminal appeals, not civil appeals,

due to the penal nature of the

14

ordinances. (Defendant’s Petition for

Leave to Appeal, pp. 4, 14, 15-20)

REASONS FOR GRANTING CERTIORARI

This Court should examine how

Illinois has violated defendant’s due

process rights by dismissing his appeal

in this case - where due process has

been subjugated to formalistic

application of a state procedural rule.

1. Due process is violated by the

Illinois Appellate Court’s dismissal of

petitioner’s appeal on jurisdictional

grounds, where notice of appeal (the

only jurisdictional step) was timely,

and defendant complied with all

applicable requirements after he finally

received notice of the order dismissing

the appeal.

2. Appeals in ordinance violation

cases that subject the defendant to the

possibility of imprisonment, must be

governed by principles of fundamental

fairness and due process applicable to

criminal, not civil, matters.

The Illinois Appellate Court, ina

formalistic application of Illinois

Supreme Court Rule 367, has obliterated

defendant’s right to appeal and violated

25

his 14th Amendment due process right to

fundamental fairness.

Considering itself bound to follow

Woodson v. Chicago Bd. of Educ., 154

I11.2d 391, 609 N.E.2da 318 (1993),

applying Rule 367,° the Appellate court

itself was troubled by dismissing the

appeal, stating:

"(T)his court must accept,

reluctantly, Woodson’s

unequivocal and controlling

language.

Our hesitancy is due to

our recognition of future

controversies where such a

formalistic application of

Rule 367 might lead to

dismissals contrary to

principles of fairness and the

interests of justice." (App.

> "Supreme Court Rule 367 (a)

requires that a petition for rehearing

‘be filed within 21 days after the

filing of the judgment, unless on motion

the time is shortened or enlarged by the

court or a judge thereof.’ 134 Ill.2d R.

367(a)." App. 5-6; 648 N.E.2d at 137.

16

9; 648 N.E.2d at 137)

But, contrary to the Appellate Court’s

position that in the instant case, the

dismissal was not contrary to principles

of fairness and the interests of

justice, this is precisely such a case

where that is the result. In this case,

when the Appellate Court granted

defendant’s motion to vacate the DWP

(dismissal for want of prosecution]

order, thus reinstating the appeal, it

was for good cause shown. Defense

counsel averred - and there was no

contradiction by the City, nor any hint

of bad faith or that the averments were

not accurate - that appellant had nc

notice of the DWP order when it was

entered; that he filed his Motion to

Vacate the DWP order within 21 days of

17

notice (knowledge) thereof; and further,

demonstrated continuing diligence in the

pursuit of his appeal, in the face of a

recalcitrant, paid-in-advance court

reporter against whom counsel had to

institute mandamus proceedings. (See

fn. 4, p. 11, supra.)

This Court has consistently held

that State procedural rules cannot be

applied to deprive criminal defendants

of fundamental, federally guaranteed

constitutional rights. Specifically, in

the loss-of-appeal context, in Evitts v.

Lucey, 469 U.S. 387, 83 L.Ed.2d 821

(1985), this Court unequivocally held

that effective assistance of counsel on

a defendant’s first appeal as of right,

18

is guaranteed by 14th Amendment due

process, with the result that a

defendant whose appeal was dismissed

because his attorney - like counsel at

bar - duly filed a notice of appeal, but

failed to timely take subsequent

procedural steps, was granted federal

habeas corpus, ordering his release

unless the Commonwealth of Kentucky

either reinstated his appeal or retried

him. Similar results are reached where

State procedural rules run afoul of

basic rights encompassed within due

process, such as the 6th Amendment right

of confrontation, Davis v. Alaska, 415

U.S. 308, 39 L.Ed.2d 347 (1974), and the

right to present a defense. Crane v.

Kentucky, 476 U.S. 683, 690, 90 L.Ed.2d

636, 645 (1986); Chambers v.

19

Mississippi, 410 U.S. 284, 35 L.Ed.2d

297 (1973). This Court has never held

that a fundamental constitutional right

may be subjugated to a State procedural

rule to the detriment of a defendant.

Clearly, even the Illinois

reviewing courts, in the criminal appeal

context, do not strictly apply the

procedural rules - which results in the

reinstatement of appeals "lost" due to

technical defaults. See, e.g., People

Vv. Moore, 133 Il1.2d 331, 549 N.E.2d

1257 (1990) (murder conviction appeal

ordered reinstated 9 years after DWP

order). Accord, each, reinstating

appeal: People v. Mims, 82 I1ll.2d 63,

411 N.E.2d 215 (1980); People v. Jacobs,

61 Ill.2d 590, 338 N.E.2d 161 (1975);

People v. Aliwoli, 60 Il1l.2d 579, 328

20

N.E.2a 555 (1975); People v. McManus, 66

I1l.App.3d 986, 384 N.E.2d 568 (3 Dist.

1978). See also People v. Scott, 143

I1l.App.3d 540, 493 N.E.2da 27 (1 Dist.

1986) (failure to file timely notice of

appeal amounted to ineffective

assistance under Post-Conviction Hearing

Act, and required that filing cf late

notice of appeal be permitted); People

v. Edgeworth, 30 Ill.App.3d 289, 332

N.E.2d 716, 718 (1 Dist. 1978)

(reinstatement of appeal rather than

post-conviction petition is the proper

procedure).

However, because of the Appellate

Court’s misperception that the Illinois

Supreme Court decision in Woodson,

supra, controlled, here, the Court

refused to reach the merits of

21

defendant’s appeal in the instant case.

This misperception resulted from the

Appellate Court’s refusal to properly

characterize the instant case as being

subject to criminal, rather than civil,

governing principles. (App. 7-8)

A NING

WHETHER DISMISSAL OF THE APPEAL WAS

CONSTITUTIONALLY PERMISSIBLE.

D 1 SK OF

INCARCERATION ~- WHICH Is THE

CONTROLLING FACTOR.

This Court has held that in

determining whether to characterize an

action (there, a juvenile proceeding

charging a minor with commission of an

offense) as civil or criminal, it is the

potential risk of punishment to which

the alleged violator is exposed, and not

the label attached to the proceeding or

the punishment in fact imposed, that

22

controls. Breed v. Jones, 421 U.S. 519,

44 L.Ed.2d 346, 357 (1975). Here, it is

Clear that defendant was exposed by the

prosecution, to potential risk of

incarceration and other forms of loss of

liberty. (See Statement of the Case,

pp. 6-7, supra.) A number of the

ordinances for which defendant was

prosecuted and convicted, carried

possible penalties greater than "fine

only," and indeed, defendant was in

jeopardy of penalties of imprisonment up

to 30 days and/or terms of public

service. He was prosecuted and found

guilty of 113 "multiple violations of

the Municipal Code of Chicago." (C. 379)

The prosecution of defendant here,

included prosecution and conviction

under Code sections providing for

23

possible jail terms. (See pp. 6-7,

supra.) Code sec. 7-28-0040 (Final

Judgment Order at numbers 8 and 113),

provides for a jail term of up to 30

days. (Def. Br. App. G, pp. 1, 7) Code

sec. 7-28-060 (Final Judgment Order at

number 40), provides for a jail term of

up to 10 days. (Def. Br. App. G, p. 3)

Moreover, all of the municipal

ordinance violations of which defendant

was convicted here, carried also the

possibility of a sentence of public

service. Code sec. 1-4-1200. (Def. Br.

App. C; see also Def. Br. App. D).

"Public service" is defined by

Illinois law in 730 ILCS 5/5-1-18.1:

"Public or community service’

means uncompensated labor for

a non-profit organization or

public body whose sole purpose

is to enhance physical or

mental stability,

24

environmental quality or the

social welfare and which

agrees to accept public or

community service from

offenders and to report on the

progress of the public or

community service to the

court."

Public or community service is a

discrete and separately-authorized

sentencing disposition, defined above,

and specified with detail at 730 ILCS

5/5-5-9. Failure to comptéte public or

community service subjects an offender

"to resentencing." 730 ILCS 5/5-5-9.

Failure to complete public or community

service can also subject an offender to

punishment for contempt of court,

notwithstanding other available

alternatives. See, e.g., In re Baker,

71 I11.2d 480, 376 N.E.2d 1005 (1978).

Such contempt, if done in wilful

disobedience, may be enforced or

25

punished with imprisonment. Chicago v.

Drovers National Bank, Trustee, 36

I1l.App.3d 296, 343 N.E.2d 632 (1 Dist.

1976).

Thus, defendant, here, was not

prosecuted and convicted under

ordinances, the violation of which was

punishable with a fine only.

Accordingly, the Woodson case,

"reluctantly" (App. 9) followed by the

Appellate Court, should not even have

been applied here. On the contrary,

because this was not a civil case, the

Appellate Court was not bound by Woodson

and had discretion to reinstate the

appeal at bar.

THE APPELLATE CouRT HAD DISCRETION TO WAIVE

THE PROCEDURAL REQUIREMENT,

AND FAILURE TO Do S80 VIOLATES DUE PROCESS

In any event, no matter what the

26

outward characterization or denomination

of a cause, the only jurisdictional step

in the perfection of any appeal in

Illinois, be it civil or criminal, is

the timely filing of the notice of

appeal.© See People v. Jones, 104

I11.2d 268, 472 N.E.2d 455 (1984)

(filing of notice of appeal is the only

jurisdictional step in perfecting an

appeal). Thus, no matter how the cause

6 111.Sup.ct.R. 301 (in the Civil

Appeals Rules) provides, in part:

"Every final judgment of a

circuit court in a civil case

is appealable as of right.

The appeal is initiated by

filing a notice of appeal. No

other step is jurisdictional."

I1l.Sup.cCt.R. 606(a) (in the Criminal

Appeals Rules), provides in part:

"No step in the perfection of

the appeal other than the

filing of the notice of appeal

is jurisdictional."

27

be characterized, the sole

jurisdictional requirement was duly

accomplished in this case. See Boone v.

Evanston Hospital, 225 I11.App.3d 195,

587 N.E.2d 1089, 1091 (1 Dist. 1992):

"[B]ecause compliance with

Prope Ore Tagg gen has

discretion to overlook

the

“procedural variations’ which

. The

exercise of this discretion is

necessary to avoid the harsh

result of dismissal and to

allow review on the merits."

(Emphases added.)

What originally occurred here - the

Appellate Court’s vacation of its DWP

order 12/16/93 upon consideration of

defendant’s well-pleaded reasons why the

appeal should not be dismissed, adhered

to on 2/18/94 when the Appellate Court

denied the City’s motion to vacate

reinstatement of the appeal - was within

28

the Appellate Court’s discretionary

power to do substantial justice rather

than to be bogged down in procedural

technicalities that unfairly deprive a

diligent litigant of his day in court.

As we called to the Illinois Supreme

Court’s attention in the Petition for

Leave to Appeal, in People v. Ballard,

59 I11.2d 580, 322 N.E.2d 473, 475

(1975), the Court held the Appellate

Court erred in dismissing an appeal from

an ordinance violation, for failure of

the defendant-appellant to serve the

City with either notice of appeal or

copy of defendant’s Brief. In the

course of its well-reasoned Opinion, id.

at 474, the Court cited People ex rel.

Pickerill_ v. New York Central R.R. Co.,

391 Ill. 377, 383, 63 N.E.2d 405, 408

29

(1945), which stated: "’Rules of

procedure are not ends in themselves;

they are designed to secure orderly and

fair methods of disposing of litigated

matters." 322 N.E.2d at 475. (Emphasis

added. )

The Appellate Court’s subsequent

decision nonetheless to dismiss the

instant appeal, thus in effect reversing

itself (that is, reversing its prior

order vacating the DWP order and

reinstating the appeal), places form

over substance and needlessly violates

basic due process and fundamental

fairness.

We submit that where, as here,

defendant averred in the Appellate

Court, facts which that court properly

found amounted to good cause shown to

30

vacate the DWP order and reinstate the

appeal, then, even though defendant’s

motion to vacate was filed more than 21

days after the DWP order, the Appellate

Court could properly reinstate the

appeal where the motion to vacate was

filed within 21 days of when counsel

averred he was first notified of the DWP

order. Holding otherwise violates due

process.

LACK OF NOTICE. The essence of due

process is notice and the opportunity to

be heard. Vv ove

Bank & Trust Co., 339 U.S. 306, 94 L.Ed.

865, 873 (1950). There, this Court

delineated the minimal constitutional

standards of due process:

"An elementary and fundamental

requirement of due process in

any proceeding which is to be

accorded finality is notice

31

reasonably calculated, under

all the circumstances, to

apprise interested parties of

the pendency of the action and

afford them an opportunity to

present their objections. . .

- (citations omitted.] The

notice must be of such nature

as reasonably to convey the

required information... ."

Accord, Davis v. Lane, 814 F.2d 397 (7

Cir. 1987). These requirements apply

even where - as here - the penalty is a

fine and not imprisonment, because the

Constitution mandates that a person’s

property shall not be taken by the

government without due process of law:

"But some form of notice and

hearing--formal or informal--

is required before deprivation

of a property interest that

‘cannot be characterized as de

minimus’." Fuentes v. Shevin,

407 U.S. 67, 90 n.21, 32

L.Ed.2d 556, 575 n.21 (1972).

(Emphasis in original.)

Accord:

"(Djue process mandates some

32

form of notice and hearing in

order to deprive [a person of]

a property interest that is

more than de minimis." Stone

v. Godbehere, 894 F.2d 1131,

1134 (9 Cir. 1990).

These decisions were rendered in the

context of State action under the due

process clause of the 14th Amendment to

the United States Constitution.

Here, the iack of notice of entry

of the DWP order, violated due process.

THE INSTANT CAUSE SHOULD BE TREATED

AS_A CRIMINAL APPEAL.

The Woodson case itself, supra, was

a purely civil appeal (accident victim

injured on school playground). This

appeal is a criminal appeal. Defendant

here was found "guilty of multiple

violations of the Municipal Code of

Chicago." One hundred and thirteen

separate violations were entered under

33

the Code. (C. 379-405)

Fines totaling over 4 million

dollars were imposed against defendant

as punishment here. That the ordinances

provide for fines makes clear this was a

criminal prosecution. See, @.g., Grady

v. Corbin, 495 U.S. 508, 109 L.Ed.2da 548

(1990); Robinson v. O’Neil, 409 U.S.

505, 35 L.Ed.2d 29 (1973); Waller v.

Florida, 397 U.S. 387, 25 L.Ed.2d 435

(1970); accord, People v. Allison, 46

I1l.2d 147, 263 N.E.2d 80, 81 (1970);

Peo Vv. skinson, 201 I11.App.3d 411,

559 N.E.2d 11, 13 (1 Dist. 1990).

Moreover, many of the ordinances of

which he was convicted, provide for

punishment even greater than a fine, as

set out at pp. 6-7, supra. And, as

already shown, all the viclations

34

provided possible penalty of public

service, all of which entail criminal

attributes. (See pp. 23-25, supra.)

Like Woodson, all of the other

decisions cited by the Appellate Court

are significantly different from this case.’

7

Mitchell v. Fiat-Allis, Inc.,

(App. 9-10), 158 Ill.2d 143, 632 N.E.2d

1010 (1994) construed: Supreme Court Rule

303(a) (1), applicable to civil cases.

The other cited cases, holding that

municipal ordinance violations are

reviewed as civil proceedings (App. 8),

so hold only where the

is a fine. Chicago v. Prus, 117

I1l.App.3d 455, 453 N.E.2d 776, 785 (1

Dist. 1983) ("where, as here, the sole

penalty for violation of the ordinance

is a fine. . ."); Peoria v. Toft, 215

Ill.App.3d 440, 574 N.E.2d 1334, 1336 (3

Dist. 1991) (criminal procedure rules

not applicable where parking ordinances

provided for fines only); Beckmeyer v.

Wheelan, 212 I11.App.3d 287, 569 N.E.2d

1125 (5 Dist. 1991) (summary judgment

procedure of Code of Civil Procedure

applicable to fine-only ordinance

violation situation); Elgin v.

Hawthorne, 204 I11.App.3d 807, 562

N.E.2da 670 (2 Dist. 1990) (affirmed due

to insufficient record on appeal).

35

In none of the cited cases, was the

ordinance violation punishable by any

penalty other than a fine.

This Court should grant

Certiorari in order to

consider whether appeals in

municipal ordinance violation

cases that subject the

defendant to the possibility

of imprisonment, are governed

by due process principles

applicable to criminal, not

civil, matters; and, whether,

at bar, such principles of

fundamental fairness and due

process of law require that

the merits of the instant

appeal be reached.

Defendant here readopts the above

Arguments why the instant cause should

be treated as a criminal appeal.

Criminal appeals are treated differently

than civil appeals, and various

constitutional guarantees are afforded

the criminal appellant.

36

Because defendant was not

prosecuted and convicted under

ordinances, the violation of which was

punishable with a fine only, the

Appellate Court was not compelled to

dismiss the appeal, but had discretion

to reinstate it - considering the "good

cause shown" as pointed out earlier in

this Petition. (See pp. 9-11, 16-17,

29-30, supra.)

To the extent this Court may agree

that pursuant to existing State law, the

appeal had to be dismissed, then

undersigned counsel’s failure to

petition for rehearing within 21 days of

the initial DWP order must be construed

as ineffective assistance of counsel

that deprived defendant of his right to

appeal. Accordingly, defendant should

37

be permitted to proceed with an untimely

appeal in the interests of justice.

Evitts v. Lucey, 469 U.S. 387, 83

L.Ed.2d 821 (1985) (defendant has a due

process right to effective assistance of

counsel on appeal) .°

While reinstatement of the appeal

can be sought via post-conviction

proceedings, in the interests of

8 Accord: People v. Aliwoli, 60

ITll.2d 579, 328 N.E.2d 555 (1975) (where

criminal appeal dismissed due to neglect

of defendant’s attorney, court abused

discretion in refusing to reinstate

appeal); People v. Scott, 143 I11.App.3d

450, 493 N.E.2d 27 (1 Dist. 1986)

(failure of appellate counsel to file

timely notice of appeal, thereby

precluding defendant’s appeal as of

right, amounted to ineffective

assistance of counsel, requiring that

filing of late notice of appeal be

permitted); People v. Moore, 133 Ill.2d

331, 549 N.E.2d 1257 (1990)

(reinstatement of appeal appropriate

where appeal dismissed through no fault

of appellant, but due to counsel’s

failure to follow appellate rules).

38

judicial economy, we seek relief via the

instant proceeding.

(Parenthetically, this appeal

involves the propriety of an order,

obtained below by the City of Chicago,

barring defendant from presenting and

litigating a 4th Amendment motion and

barring defendant from defending himself

at his trial - for defendant’s refusal

to consent to an "inspection" of the

interior of his premises. See p. 7,

supra. It would be ironic, indeed, to

bar defendant from appealing this gross

injustice.)

Note finally, that the 5th

Amendment proscription against double

jeopardy - part of 14th Amendment due

process of law - applies even where an

ordinance is punishable "only by a

39

fine." People v. Allison, 46 I1l.2a

147, 263 N.E.2d 80, 81 (1970),

interpreting and applying Waller vy.

Florida, 397 U.S. 387, 25 L.Ed.2d 435

(1970). The 6th Amendment guarantee of

effective assistance of counsel on

appeal - also part of 14th Amendment due

process - likewise applies. Evitts v.

Lucey, supra.

In any event, the ordinances at bar

Clearly were not punishable "only by a

fine." Accordingly, pursuant to due

process and fundamental fairness, the

Appellate Court had discretionary power

to reinstate this appeal. Its failure

to do so violates due process, and

should be scrutinized by this Court.

GUIDANCE PROM HABEAS PRACTICE

Although habeas corpus proceedings

40

are deemed "civil," and tentatively are

regulated by civil procedure, this Court

has held that strict civil procedural

rules may not be applied in habeas

proceedings so as to deny substantial

justice. See, e.g., Hilton v.

Braunskil, 481 U.S. 770, 95 L.Ed.2d 724

(1987). Cf. McCleskey v. Zant, 499 U.S.

467, 113 L.Ed.2d 517 (1991); Schlup v.

Delo, 513 U.S. ___, 130 L.Ed.2da 808, 831

(1995); Kuhlmann v. Wilson, 477 U.S.

436, 91 L.Ed.2d 364 (1986).

See Karstetter v. Cardwell, 399

F.Supp. 1298 (S.D.N.Y. 1975) (late

filing of notice of appeal allowed on

finding of "excusable neglect"). There,

a State prisoner’s time for filing

Notice of Appeal from denial of habeas

corpus had elapsed due to counsel’s

;

“4

:

*;

:

é

cf

é

e

t

;

&

i

F

&

&

41

erroneous calculation; he asserted the

bulk of his practice involved cases

wherein the United States is a party,

and therefore calendared the case as one

with a 60-day period for filing notice

of appeal, rather than the actually

applicable 30-day period. The court

concluded that for purposes of filing a

tardy notice of appeal, although a

petition for writ of habeas corpus is a

Civil, as opposed to a criminal,

proceeding, the standard of

"excusability" utilized in criminal,

rather than in civil cases must apply,

because "a man’s liberty is at stake."

Accord, Inglese v. Warden, 687 F.2d 362

(11 Cir. 1982).

Here, too, because of the exposure

of defendant to the potential punishment

42

of imprisonment and other infringements

on his liberty, a man’s liberty was at

stake. Accordingly, the cause must be

treated as criminal, rather than civil,

for present purposes.

CONCLUSITLION

For any and all of the foregoing

reasons, certiorari should be allowed;

and, on the merits, defendant’s appeal

should be reinstated, and the cause

remanded with instructions that the

Appellate Court decide the merits of

defendant’s appeal.

Respectfully submitted,

FREDERICK F. COHN

Attorney for Petitioner

DENNIS DOHERTY, of counsel

App.

APPENDIX A

1

THIRD DIVISION

February 15, 1995

NOTICE

The text of this opinion may be

changed or corrected prior to the

time for filing of a Petition for

Rehearing or the disposition of

the same.

No. 1-92-4474

CITY OF CHICAGO,

A Municipal

Corporation,

Plaintiff-Appellee,

)

)

)

)

)

)

Vv. )

)

THADDEUS PUDLO and )

WALTER PUDLO, d/b/a )

Pudlo Food Products, )

)

)

Defendant-Appellants.

Appeal from

Circuit Court of

Cook County

Honorable

Paul Preston,

Judge Presiding.

PRESIDING JUDGE GREIMAN delivered

the opinion of the court:

Defendant, Thaddeus Pudlo, (Pudlo)

appeals from a judgment entered against

him in the enforcement of municipal

App. 2

ordinances and the imposition of fines

as authorized by the Municipal Code of

Chicago. Chicago Municipal Code, ch. 4-

8, sec. 850; ch. 4-9. sec. 370. (1983,

amended).

On appeal defendant contends (1)

that the circuit court lacked

jurisdiction because of a prior

dismissal; (2) sanctions were imposed

against him in violation of his fourth

amendment rights; and (3) the sanctions

imposed were unduly excessive and an

abuse of discretion.

During the pendency of this appeal,

the matter was dismissed for want of

prosecution and 63 days later defendant

filed a motion to vacate the order of

dismissal which was granted.

The city now alleges Pudlo’s

App. 3

failure to comply with the procedural

requirements of Supreme Court Rule

367(a) (134 Ill. 2a R. 367(a)), which

required defendant to file a petition to

vacate the order of dismissal within 21

days after the entry of the judgment,

resulted in this court’s loss of its

appellate jurisdiction.

We agree that this court was

without jurisdiction to vacate the

dismissal order, and we dismiss Pudlo’s

appeal. As a consequence, this opinion

is limited to examination of the

jurisdictional question, leaving the

circuit court’s judgment and other

rulings undisturbed.

In 1990 the City of Chicago filed

three separate complaints against

Thaddeus Pudlo, doing business as Pudlo

App. 4

Food Products, alleging numerous

violations of the city’s Municipal Code

relating to real property owned and

operated by Pudlo within the City of

Chicago. The complaints were

consolidated in the action below.

During the pendency of that

litigation, Pudlo was held in contempt

of court, and later sanctioned under

Supreme Court Rule 219(c), for his

willful and repeated refusal to allow

inspection of the Pudlo property

pursuant to both the city’s request for

discovery and direct court orders. The

circuit court entered a final judgment

on November 17, 1992, imposing fines on

Pudlo for 113 code violations.

Pudlo filed his notice of appeal on

December 15, 1992. On September 30,

App. 5

1993, this court dismissed the appeal

for want of prosecution. Pudlo moved to

vacate the dismissal and reinstate the

appeal on December 2, 1993, which motion

was granted by this court on December

16, 1993.

The city contends the fact Pudlo

moved’ to vacate this court’s dismissal

on December 2, 1993, exceeding the time

allotted under Rule 367(a) by 41 days,

deprived this court of jurisdiction to

reinstate Pudlo’s appeal, and

accordingly, this court’s dismissal on

September 30, 1992 [sic./], was final.

Supreme Court Rule 367(a) requires

that a petition for rehearing "be filed

within 21 days after the filing of the

1 Footnote, added by Petitioner’s

counsel. "1992" is obviously a typo-

graphical error; "1993" is intended.

App. 6

judgment, unless on motion the time is

shortened or enlarged by the court or a

judge thereof." 134 Ill. 2d R. 367(a).

In Woodson v. Chicago Board of

Education (1993), 154 I11.2d 391, 609

N.E.2d 318, our Supreme Court held that

"“(wjhen the appeal of the [circuit

court’s] order was dismissed for want of

prosecution . .. and a petition for

rehearing was not filed within 21 days,

the dismissal order became final and the

appellate court lost jurisdiction to

consider additional arguments stemming

from the order." (Woodson, 154 Ill.2d at

397.) This court did not have before it

a motion to extend the time for filing

beyond the 21 days required by Rule 367.

Thus, after the passage of the 21 day

period, we lacked discretion to vacate

App. 7

its dismissal for want of prosecution,

being without jurisdiction to entertain

action.

Pudlo attempts to distinguish the

instant case from Woodson, arguing that

the principles of Woodson apply only to

civil cases, and that the ordinance

violations were criminal in nature,

exposing him to both fines and a 30 day

jail sentence. Pudlo’s reliance on this

distinction is misplaced. Nothing in

Woodson expressly limits its holding to

civil cases generaliy, or "fine only"

ordinance prosecutions in particular,

although such might be an appropriate

limitation. However, prosecutions for

municipal ordinance violations are civil

in nature, and are tried and reviewed as

civil proceedings.

App. 8

Beckmeyer v. Wheelan (1991), 212 Ill.

App. 3d 287, 569 N.E.2d 1125; Peoria v.

Toft (1991), 215 Ill. App. 3d 440, 574

N.E.2d 1334; Elgin v. Hawthorne (1990),

204 Ill. App. 3d 807, 562 N.E.2d 670;

Chicago v. Prus (1983), 117 Ill. App. 3d

455, 453 N.E.2d 776.

Nothing before this court suggests

that an exception be created determining

Rule 367 inapplicable to municipal

ordinance proceedings. To the contrary,

even the authority cited by Pudlo

expressly supports the proposition that

prosecutions for municipal ordinance

violations, though quasi-criminal in

nature, are to be tried and reviewed as

civil actions. Chicago v. Prus, 117

Ill. App. 3d at 467.

The holding in Woodson is clear,

App. 9

and given the similarity between Woodson

and the instant case, each involving the

identical procedural sequence, this

court must accept, reluctantly,

Woodson’s unequivocal and controlling

language.

Our hesitancy is due to our

recognition of future controversies

where such a formalistic application of

Rule 367 might lead to dismissals

contrary to principles of fairness and

the interests of justice. However, this

is not such a case.

Accordingly, since this court is

without the authority to excuse

compliance with the filing requirements

of the supreme court rules governing

appeals, (Mitchell v. Fiat-Allis, Inc.

(1994), 158 Ill. 2a 143, 632 N.E.2d

App. 10

1010), this appeal is dismissed for lack

of jurisdiction pursuant to Supreme

Court Rule 367(a). 134 Ill. 2d R.

367{a).

Appeal dismissed.

TULLY, J., and CERDA, J., concur.

App. 11

APPENDIX B

ILLINOIS SUPREME COURT

78682 JULEANW HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

June 1, 1995

Mr. Dennis Doherty

Attorney at Law

205 W. Wacker Dr., S#1515

Chicago, IL 60606

No. 78682 - City of Chicago, etc.,

respondent, v. Thaddeus

Pudlo, petitioner. Leave to

appeal, Appellate Court,

First District.

The Supreme Court today DENIED the

petition for leave to appeal in the

above entitled cause.

The mandate of this Court will

issue to the Appellate Court on June a3;

1995.

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