Petition for Writ of Certiorari — Blueprint Engines, Inc. v. Jadair Inc.

Supreme Court, U.S.

FILED

97-630 JUL 23 1997

OFFICE OF THE CLERK

No.

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

Blueprint Engines, Inc., Petitioner-

Defendant,

Vv.

Jadair Incorporated, Plaintiff-

Respondent, and

United States Fire Insurance Company,

Defendant-Respondent,

Mesirow Insurance Services, Inc., West

Bend Air, Inc., Stanley Aircraft & Engine

Service, Inc., Employers Reinsurance

Corporation, Defendants.

On Petition for a Writ of Certiorari to

the Supreme Court of the State of

Wisconsin

PETITION FOR WRIT OF CERTIORARI

Ross R. Kinney

734 Clinton Street

Waukesha, WI 53186

414-542-5363 or 414-542-5375

414-542-5746 (FAX)

Counsel for Petitioner

ge Are EDD

ek

QUESTIONS PRESENTED

Whether the Due Process guarantee of

the Fourteenth amendment of the United

States Constitution bars enforcement of

Wisconsin statutory provisions and/or

common law rules that refuse to open

their appellate courts’ doors, to resolve

on its merits, the timely and otherwise

proper appeal by an Illinois corporation

from an adverse summary judgment entered

at the trial court level, merely because

its one page Notice of Appeal had been

signed by an officer-owner-director of

the Illinois corporation, rather than by

an attorney, without even inquiring

whether or not that corporation had

sufficient funds available to be able to

hire an attorney to sign such a Notice of

Appeal within the requisite 45 days time

period to appeal, and even though a

Wisconsin attorney specially appeared on

its behalf about a week after the motion

to dismiss the appeal had been filed, but

after the aforesaid 45 days had elapsed?

Whether the aforesaid closing of

“access” to the Wisconsin appellate court

system was in violation of the Equal

Protection of the Laws guarantee of the

Fourteenth Amendment because all human

beings (natural persons) have an absolute

right to have his or her Notice of Appeal

given full legal effect, even though not

signed by an attorney?

ll

ee eee

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........4i

TABLE OF AUTHORITIES ae a + oe

ego 9a | Ce i a a 3

EET « «© 6 «+ «© + ¢€ + © + 6© © 6

UNITED STATES CONSTITUTIONAL PROVISIONS

ee. ek Ok Sk se kk ee Oe le

CE co goes ee eg he 6G lk se ee Oe

A. Proceedings at the Circuit

(Trial) Court Level ..... 2

B. Appellate Proceedings ... . 3

REASONS FOR GRANTING THE PETITION .. . 5

a a a a

2 The Wisconsin Supreme Court’s

Absolute Fatally “Defective”

Statutory-Common Law Per Se

Rule Requiring all

Corporations’ Notices of

Appeals to be Signed by an

Attorney, is in Violation of

the Due Process and/or the

Equal Protection Guarantees of

ill

i

‘ee

the Fourteenth Amendment to

the United States

CONMBELCUESOMR «a te et eo aw eo B

The Constitutional Questions

Presented are Important to all

Financially Disadvantaged

Corporations in this Country

that Ever became Involved in

Civil Litigation and there is a

Lack of Consistency of the

State and Lower Federal Due

Process and Equal Protection

Decisions of this Court

24

It is only Rarely that a

Financially Disadvantaged

Corporation is able to get

these Important Constitutional

Issues Before an Appellate

Court for Resolution Because,

by Definition, There is an

Inherent Lack of Available

Money. This Case is a Classic

Example of what can and does

Occur, and it Poses Several

Important Constitutional Issues

with Razor Sharp Clarity ina

Factually Unique Appellate

a ne a er ae oe

Camel ueiee . . « «s+ 6s *.* © & *& =O

iV

TABLE OF AUTHORITIES

Page

CASES

Atkinson v. Grummon Ohio Corp., $23

N.E.2d 851 (Ohio 1988) a ee ee ee ee

Boddie v. State of Connecticut, 401

U.S. 371, 372, 375, $1 8.Cce. 760

(1971) ee ee ee ee ee eS ee ee ee ee

Boling v. National Zinc Co., 435 F.

Supp. 18, 20 (N.D. Okla. 1976) ... 12

Burns v. Ohio, 360 U.S. 252, 257, 79

S.Ct. 1266 (1969) . . .. ss os a2, 28

Cook v. Babbitt, 819 F. Supp. 1, 11

(2.0.¢. 30S): «< 2 ace eee ee eee

Covington v. Sandford, 164 U.S. 578, 17

S.C .298 (3096) oe 4 i ee eee

Craig v. Carson, 449 F. Supp. 385, 389-

91, 395 (M.D. Flo. 1978) .... . f 46

Douglas v. California, 372 U.S. 353,

356-8, 83 S.Ct. 814 (1963) ..... 21

Griffin v. Illinois, 351 U.S. a, i394,

76 &.Ct. S8S (1956) .... 12-15, 18, 22

Harrah Independent School District v.

Martin, 440 U.S. 194, 99 §.Ct. 1062

eo ys ) ee ee ee ee ee ae te OR

Hawkeye Bank ... . ues ye ea oe ee

Hooks v. Wainright, 352 F. Supp. 163

(M.D. Fla. 1972), aff’d. 529 F.2d 161,

(10 Cig. 1976) © 6.8. We eco ee ee ee

Kaufman v. Board of Trustees, Community

College, 552 F. Supp. 1143, 1153-6 (W.D.

Tll. 1982) « «© » @° 48 ep cee eee ee

Kertes Ent., Inc. v. Orange Village, 593

N.E.2d 306, 307-8 (Ohio App. 1990) - se

Lane v. Brown, 372 U.S. 477, 480-5, 83

S.Ct. 768 (1963) = ee ae a eee

Lindsey v. Normet, 405 U.S. 56, 78-80,

92 S.Ct. 662 (i872). os ss eee eS ee

Merchants Ass’n. v. Conger, 606 P.2d

125 (Mont. 1979) ee ae ey ee ee ae

Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313-4, 70 S.Ct. 652

(1950) 0 6 } 66 eb ee ee eee 10

Cahu Plumbing . «cs « 6 ee eee ee

O'Day v. George Arakelian Farms, Inc.,

536 F.2d 856, 585-60 (9 Cir. 1976) . 19

Piper v. Popp, 167 Wis. 2d 633, 637-9,

vi

482 N.W.2d 353, 355-7 (1992) .., 16, 17

Pyeatte v. Bd. of Regents of University

of Oklahoma, 102 F. Supp. 407, 411-3

(W.D. Okla. 1951) aff'd. per cur. 342

Uo. DOG (4988). 6g sk kt kw te He ES

Rinald v. Yeager, Warden, 384 U.S. 305,

OG (A008) «sas ae es ae eee Oe

Silver v. Cormior, 529 F.2d 161 (10: Cir.

BTS. 8 ete a Seo ee ee oe es La

State v. Sowder, 826 S.W.2d 294, 926-8

(Tenn. Cr. App. 1991) ........ 12

Trapper Brown Constr. Co., Inc. v.

Electromech, 358 F. Supp. 105, 106-7

(sm. E978) 2 ww tt wht lt tlt

Tucker v. City of Montgomery, 410 F.

Supp. 494, 502 (M.D. Ala. 1976) ... 13

STATUTES AND RULES

RO Wemeue BOUT «6 4 oe ee we et tt ee

26 U.S.C. 2403(b) ......2.42.4.2..S85

Rule 10(b) (c), Rules of the Supreme

Court of the United States ......2

CONSTITUTIONAL

Due Process guarantee of the Fourteenth

amendment... . i, 5, 7-12, 14, 16, 17

Equal Protection of the Laws guarantee of

the Fourteenth Amendment

i, 5, 7, 9-15,18, 19, 21, 22

OTHER

Annotation, Propriety and Effect of

Corporation’s Appearance Pro Se Through

Agent Who is Not Attorney, 8 A.L.R. 5th

CSS 2. 4 t« & us S546 2 Se eee ee

Viii

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

Blueprint Engines, Inc., Petitioner-

Defendant,

Vv.

Jadair Incorporated, Plaintiff-

Respondent, and

United States Fire Insurance Company,

Defendant-Respondent,

Mesirow Insurance Services, Inc., West

Bend Air, Inc., Stanley Aircraft & Engine

Service, Inc., Employers Reinsurance

Corporation, Defendants.

PETITION FOR WRIT OF CERTIORARI

Petitioner Blueprint Engines, Inc.,

by its attorney, respectfully petitions

this Court to issue a writ of certiorari

to review the Decision of the Wisconsin

Supreme Court in this case. (See App.,

tab A)

OPINIONS BELOW

The Decision of the Wisconsin

Supreme Court eventually will be reported

in Wis.2d and in

N.W.2d , but to date has not been.

The opinion of Court of Appeals II (see

tab B) will not be reported.

JURISDICTION

Jurisdiction over this case is

provided by 28 U.S.C. 1257 and Rule

10(b) (c), Rules of the Supreme Court of

the United States. The Decision of the

Wisconsin Supreme Court to be reviewed

was filed on April 29, 1997.

UNITED STATES CONSTITUTIONAL PROVISIONS

INVOLVED

Article XIV of the Amendments to the

United States Constitution provides that

“(n)o State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.”

STATEMENT

A. P ircui

This Wisconsin case initially

involved claims by plaintiff Jadair

Incorporated (“Jadair”) against the

Illinois corporation that overhauled one

of its airplane’s engines, defendant

Blueprint Engines, Inc. (“Blueprint”) ;

Blueprint’s insurance company, defendant -

respondent United States Fire Insurance

Company (“U.S. Fire Ins.”); the insurance

agency which arranged for Blueprint’s

insurance coverage, defendant Mesirow

Insurance Services, Inc. (“Mesirow”), and

its insurance company; and two other

Wisconsin companies that had worked on

the installation of the overhauled engine

in the airplane. Blueprint was initially

represented by two Illinois attorneys in

the Wisconsin trial court, but they both

withdrew for financial reasons on

December 5, 1994. Thereafter, Blueprint

participated in this lawsuit via its

officer-director-stockholder, Ed

Rachanski, who was not an attorney--but

without any motions being made by any of

the other parties in this civil action to

bar this representation upon the ground

that he was illegally practicing law in

Wisconsin upon behalf of a foreign

corporation.

On May 25, 1995 the trial court

granted summary judgment to U.S. Fire

Ins. dismissing all of Jadair’s claims

against it, as well as all of the cross

claims by the other co-defendants against

it, including those of Blueprint.

Summary judgment was entered on July 18,

1995. There was only 45 days thereafter

for Blueprint to appeal therefrom.

B. Appellate Proceedings

Jadair filed its Notice of Appeal on

July 15, 1995. Blueprint filed its

Notice of Appeal on August 21, 1995. The

former was signed by its regular

attorney, Ross R. Kinney, then a partner

at Quarles & Brady. The latter was

signed by Ed Rachanski, pro se. (See

App., tab C) Wisconsin had an absolute 45

day time limit for filing Notices of

Appeal after the judgment was entered,

where, as here, notice of its entry was

given. Notices of Appeal filed

thereafter are, under Wisconsin law,

fatally late. On September 18, 1995,

well after this 45 day time period had

elapsed, U.S. Fire Ins. moved Court of

Appeals II to dismiss both the Jadair

appeal and the Blueprint appeal. This

motion, insofar as it was to dismiss

Jadair’s appeal, was denied by Court of

Appeals II. However, it dismissed

Blueprint’s appeal--not upon the ground

that it was in an improper form or

untimely--but solely because that one

page sheet of paper had been signed by Ed

Rachanski, rather than by an attorney.

(See App., tab B) Seven days after the

filing of the motion to dismiss

Blueprint’s appeal was interposed,

attorney Ross R. Kinney appeared

specially in the appellate proceedings

only, upon behalf of Blueprint. As to

the merits of the summary judgment

adjudications, the interests of Jadair

and Blueprint were, and are,

substantially identical and, accordingly,

there was no fatal conflict-of-interest.

Blueprint and Jadair petitioned the

Wisconsin Supreme Court to accept an

appeal from Court of Appeals II’s adverse

decision dismissing Blueprint’s appeal

and this was accepted. After briefing

and oral argument, the Wisconsin Supreme

Court unanimously affirmed the dismissal

of Blueprint’s appeal on April 29, 1997--

solely upon the ground that the one page

Notice of Appeal had been Signed by Ed

Rachanski who was not, and is not, a

lawyer. (See App., tab A) Extensive

constitutional arguments had been

advanced by Jadair and Blueprint to the

Wisconsin Supreme Court in their initial

and reply briefs. But the Wisconsin

Supreme Court’s perfunctory advertances

to the Equal Protection of the Laws and

Due Process constitutional issues, did

not come to grips with any of the key

considerations and did not attempt to

discuss or deal with the extensive

Supportive case law relied upon by Jadair

and Blueprint. Nor did it engage in the

requisite constitution analysis mandated

by this Court’s decisions dealing with

Due Process and Equal Protection issues.

(See App., tab A, pages 18a-19a)

Accordingly, 28 U.S.C. 2403(b) may

be applicable.

REASONS FOR GRANTING THE PETITION

Intr Lon

The Wisconsin Supreme Court’s

Decision does not even advert to the

constitutional consequences, if any, of a

small family owned corporation’s

financial inability to retain and pay for

an attorney within the 45 day appeal

period--even though lack of money is

certainly a critical factor that looms

ever larger in civil actions during

modern times in this country. Given the

ever rising number of legal malpractice

claims against attorneys, as well as the

Statutory provisions in the judicial

systems of the states, as well as the

Federal system, imposing “frivolousness”

penalties, it can be very difficult to

retain needed lawyers in civil actions.

These factors can certainly be powerful

deterrents to attorneys haphazardly

agreeing to represent financially

strapped family corporations that cannot

afford to pay much money, if any, for the

representation.

Yet the Wisconsin Supreme Court’s

controlling analysis, mirroring Court of

Appeals II’s per se rule, has no means by

which the appellate courts can even

consider such critical factual

considerations or determine whether they

exist--even if the practical effect of

the per se “must be Signed by attorney”

rule is to bar access to the appellate

court system. There is Simply a per se

Statutory and/or common law bar to any

and all corporations obtaining “access”

to the appellate system if their Notices

of Appeal are not Signed by an attorney

and filed within the requisite 45 days

window.

It is now time for this Court to

evaluate and resolve--in the light of

modern day realities-circumstances--the

issues whether Due Process and/or Equal

Protection of the Laws protect small

family owned corporations from being, in

effect, denied “access” to states’

appellate court systems in civil actions-

-as they attempt to protect their

Property (e.g. accumulated by the family

Over one or more generations) in the

midst of expensive and complex civil

lawsuits. When such small corporations

Simply do not have sufficient financial

resources available to pay an attorney to

represent it in an appeal by Signing a

Notice of Appeal within a very short time

period, the practical effect of requiring

an attorney to sign that document, is to

bar “access” for want of money. This

financial problem was exacerbated in this

case by the relatively short 45 day time

period which Blueprint found itself in

the midst of and without the benefit of

any attorney’s advice. It had to get and

file a sheet of paper labeled “Notice of

Appeal” --in order to avoid a statute of

limitation type bar--within 45 days from

the date of the July 18, 1995 summary

judgment).

Extensive legal research discloses

no published decisions in any court in

this country that have grappled with

these precise Due Process and Equal

Protection constitutional issues

involving “access” to appellate courts in

the context of small corporations

experiencing such severe financial

constraints. In particular, legal

research disclosed no judicial decisions

resolving such issues in the light of the

more recent decisions of this Court that

have dealt with analogous constitutional

issues involving the right to counsel

(attorney), and analyzed and applied the

Due Process and/or Equal Protection of

the Laws guarantees in civil actions.

The bars in many states in this

country, including Wisconsin, have been

for years grappling with the question of

how desperately needed lawyering services

can somehow be provided to the lower

middle class persons and businesses in

this country, as they seek justice and

righteousness in our court systems--but

as

Simply cannot afford to pay for

attorneys’ service at their going rates.

The problem is particularly acute where

first class trial representation is

needed in civil actions because important

constitutionally protected Property

rights-interests are at stake. Adverse

results can be financially devastating to

the persons and/or businesses at risk--

including those which are incorporated--

if they lose.

Corporations’ Notices of

Appeals to be Signed by an

Attorney, is in Violation of

the Due Process and/or the

Equal Protection Guarantees of

the Fourteenth Amendment to the

United States Constitution

It has long been well-settled that

the Fourteen Amendment to the United

States Constitution, via its Due Process

and Equal Protection of the Law

guarantees, is applicable to, and imposes

limits upon, state court systems’

deprivations of litigants’ “property”

interests. Cf. e.g., Craig v. Carson,

449 F. Supp. 385, 389-91, 395 (M.D. Flo.

1978) (must be “...fundamental

safeguards...real and present”; held Due

Process mandates, inter alia, that

“,..there must be some legitimate

governmental or public reason asserted

for depriving an individual of his

liberty or property.” Craig at 390. Due

Process guarantees procedurally that

state court systems cannot infringe upon

litigants’ “property” interests via rules

that are “arbitrary, capricious or

without rational basis.” See e.g.,

Harrah Independent School District v.

Martin, 440 U.S. 194, 99 S.Ct. 1062

(1979); Kaufman v. Board of Trustees,

Community College, 552 F. Supp. 1143,

1153-6 (W.D. Ill. 1982) (held violated

Due Process and Equal Protection) ;

P Vv. Lv

ef Oklahoma, 102 F. Supp. 407, 411-3

(W.D. Okla. 1951) aff'd. per cur. 342

U.S, 936, . 8.Ce. ..._ « (4982).

viewed, the Wisconsin Supreme Court’s

absolute rule that all corporations’ one

page Notices of Appeal must be signed by

an attorney or adjudged fatally defective

just because the litigating party is a

corporation--even though that same sheet

of paper would be legally okay if that

party had been a human being--cannot pass

muster.

The Due Process guarantee as applied

to state courts’ procedures mandates a

“balancing” of three factors (1) the

particular kind of private liberty or

10

Property interest at stake, (2) the risk

of a wrongful or erroneous deprivation of

that interest, and (3) the public or

governmental interest involved. See e.g.

Craig, 449 F. Supp. at 391. The bottom

line Due Process guarantee is that the

procedural “safeguards” imposed by the

states in their courts must be

“meaningful and reasonable.” See e.g.,

Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313-4, 70 S.Ct. 652

(1950); Craig, 449 F. Supp. at 391. Yet

the Wisconsin Supreme Court’s per se rule

has no such balancing and, moreover, its

April, 1997 decision embracing that per

se rule, did not engage in this analysis.

Moreover, what is the overwhelming

“public or governmental interest

involved” which justifies closing the

appellate doors to all corporations

merely because the “legally magic” sheet

of paper, the Notice of Appeal, was not

signed by an attorney--even if a

Wisconsin attorney would be representing

the corporation thereafter as to all key

functions (e.g. brief writing) ?

The essence of the Equal Protection

of the Law guarantee is that Similarly

Situated “persons” must be treated the

same unless “meaningful, socially

relevant differences” justify the

differences in treatment--i.e., equate

with the “just distribution of benefits

and burdens in society.” The

11

classifications must be based upon

“distinguishing characteristics which are

relevant to the states’ legitimate

interests.” Cook v. Babbitt, 819 F.

Supp. 1, 11 (D.D.C. 1993). So judged,

the Wisconsin Supreme Court’s per se

rule’s line between all corporate

“persons” and all human beings (natural

“persons”), cannot pass muster. The

substantive Due Process guarantee is

virtually co-extensive with the Equal

Protection of the Laws guarantee. See

e.g., Harrah, 440 U.S. at 194; Kaufman,

552 F. Supp. at 1153; Pyeatte, 102 F.

Supp. at 415-6 (group-class subjected to

the requirements cannot be arbitrarily

selected and defined).

As early as Covington v. Sandford,

164 U.S. 578, 17 S.Ct.198 (1896) it was

time to declare that “[i]t is now settled

that corporations are persons within the

meaning of the constitutional provisions

forbidding the deprivation of property

without due process of law, or, as well,

a denial of the equal protection of the

laws.” Since Blueprint, as a

“corporation,” is nonetheless a “person,”

it was protected by the Due Process and

Equal Protection of the Law guarantees.

See also e.g., Trapper Brown Constr. Co.,

Inc. v. Electromech, 358 F. Supp. 105,

106-7 (D.N.H. 1973); State v. Sowder, 826

S.W.2d 294, 926-8 (Tenn. Cr. App. 1991)

(“...(a)ll forms of property...” are

12

entitled to such protection).

Blueprint’s corporate assets were, and

are, such “property.” See also e.g.

First Nat. Bk. vy. Bellotti, 435 U.S. 765,

780, 985 S.Ct. 1407 (1978) (“(i)t has

been settled for almost a centry that

corporations are persons within the

meaning of the Fourteenth Amendement.”) .

Due Process guarantees reasonable

access to all court systems. See e.2.,

Hooks v. Wainright, 352 F. Supp. 163

M.D. Fla. 1972), aff'd. 529 F.2d 161,

(

(10 Cir. 1976) ; Silver v,. Cormior, 529

F.2d 161 (10 Cir. 1976); Boling v.

National Zinc Co,, 435 F. Supp. 18, 20

(N.D. Okla. 1976). This encompasses

Wisconsin’s appellate court System! The

constitutional impact and Significance of

financial requirements, which litigants

could not afford to meet, were initially

r:cognized in the criminal litigation

arena under the “liberty” guarantee.

However, these very same concerns are

also applicable in the civil litigation

arena via the constitutional “property”

guarantees. The genesis decision which

broke the ground was Griffin v. Illinois,

351 U.S. 12, 13-4, 76 S.Ct. 585 (1956)

where it was held in a criminal case that

the state rule requiring appellants to

pay for trial transcripts violated the

Equal Protection and Due Process

guarantees by “thereby shut [ting] off

[the] means of appellant review for

13

indigent defendants.” But most of our

country’s citizens are not at risk in

criminal cases; the more important

concerns for the average hard working

citizens who are the backbone of this

country, is whether they will have enough

available money to pay for attorneys fees

when they engage in civil actions as they

occur! Attorneys fees are much greater

than fees for trial transcripts.

In Tucker v. City of Montgomery, 410

F. Supp. 494, 502 (M.D. Ala. 1976) it was

held that the requirement of filing

surety bonds in appeals from municipal

“quasi-criminal” convictions violated the

Equal Protection guarantee as applied to

“indigents” because the erection of

“financial barriers restricting the

availability of appellate review for

indigent individual defendants has no

place in our heritage of equal justice

under law.” Amen! See also, e.g., Burns

¥..Oni9o, 360 U.S. 252, 257, 79 &.Ct. 1164

(1959) (appellant unable to pay docketing

and filing fees for appeal from felony

conviction, citing Griffin). Yet

“access” to appellate courts is even more

surely denied in civil actions by

requiring all corporations to hire an

attorney to sign the Notice of Appeal

within 45 days, when “applied to”

corporations that do not have the money

available to do so!

In Boddie v. State of Connecticut,

id

401 U.S. 371, 372, 375, 91 S.Ct. 780

(1971) it was held that state litigation

procedures requiring “payment of court

fees and costs of service of process,

that restrict their access to the courts

in their effort to bring an action for

divorce”--i.e. in civil, not criminal

cases--just because of their “inability”

to afford to pay them (because of

indigency), were also unconstitutional.

This same reasoning is also applicable to

natural persons and to corporate persons

that simply cannot afford to hire an

attorney to represent them in given civil

actions and accordingly, must choose to

proceed pro se. Blueprint’s cross claim

legal rights against its insurance

company, U.S. Fire Ins., are “property

rights” protected by the Due Process and

Equal Protection of the Laws guarantees--

particularly since Jadair’s claims

against Blueprint are still legally

viable.

Boddie concluded, Citing Griffin:

Just as a generally valid

notice procedure may fail to

satisfy due process because of

the circumstances of the

defendant, so too a cost

requirement, valid on its face,

may offend due process because

it operates to foreclose a

particular party’s opportunity

15

to be heard.

xxx

In our opinion, none of

these considerations is

sufficient to override the

interest of these plaintiff-

appellants in having access to

the only avenue open for

dissolving their allegedly

untenable marriages. Not only

is there no necessary

connection between a litigant’s

assets and the seriousness of

his motives in bringing suit,

but it is here beyond present

dispute that appellants bring

these actions in good faith.

(401 U.S. at 381-2; emphasis

added)

The Wisconsin Supreme Court’s per se rule

refuses to take any of these

constitutionally key factual matters into

account; it simply closes Wisconsin’s

appellate doors to Blueprint and to all

other pro se corporations--regardless of

their financial plights--just because the

person signing the one page Notice of

Appeal is not an attorney.

Justices Douglas and Brennan

concurring in Boddie relied upon the

Equal Protection guarantee, citing, inter

Griffin and Burns, (401 U.S. at

16

384-90):

A state may not make its

judicial processes available to

some but deny them to others

simply because they cannot pay.

(401 U.S. at 390; emphasis

added)

Yet U.S. Fire Ins. presented no evidence

on this critical factual consideration in

Support of its motion to dismiss the

Blueprint appeal. Moreover, it conceded

during oral argument before the Wisconsin

Supreme Court that it had sustained no

“prejudice” because Ed Rachanski had

Signed Blueprint’s Notice of Appeal pro

se, rather than having an attorney sign

it. So what is the overbalancing

legitimate “public” interest which

justifies closing “access” to Wisconsin’s

appellate court system to Blueprint’s

appeal?

Five years earlier, the Wisconsin

Supreme Court in Piper v. Popp, 167 Wis.

2d 633, 637-9, 482 N.W.2d 353, 355-7

(1992) had grappled with some of these

very same constitutional considerations

in a civil lawsuit involving an

“indigent” natural person, in the context

of Due Process. The constitutional

guarantees which it embraced in that

decision, are at odds with its 1997 per

se rule in this case, which does not even

17

consider the financial capabilities of

the corporation vis a vis paying for an

attorney in a particular lawsuit to sign

the Notice of Appeal. The issue in Piper

was whether an “indigent” defendant in a

civil (tort) action “has a constitutional

right to have the state appoint and pay

for an attorney to represent him.” The

court engaged in a “weighing the elements

in due process” analysis, rather than

merely announcing a per se rule. (167

Wis.2d at 638) Yet in this case, it did

not do so!

In this case, the Wisconsin Supreme

Court’s per se rule barred Blueprint from

appearing pro se in this case--even for

the limited and isolated purpose of

Signing and filing Blueprint’s one page

Notice of Appeal so as to effectuate its

appeal within the short jurisdictional

time period (i.e. 45 days). But the

Wisconsin Supreme Court held in Piper:

To answer this question,

we begin with the axiom that

before the state may deprive an

individual of life, liberty or

property, the state must accord

the individual in a meaningful

opportunity to be heard. In

other words, litigants must be

given their day in court.

Access to the courts is an

18

rowel 2 te

essential ingredient of the

constitutional guarantee of due

process. Whatever the precise

Status of the right of access

to the courts, due process is

Satisfied “if the procedures

provide an opportunity to be

heard at a meaningful time and

in a meaningful manner.

(482 N.W.2d at 358; emphasis added)

The Wisconsin Supreme Court’s per se rule

is incompatible with this constitutional

Due Process “property” analysis, as well

as with other states’ judicial decisions

and with some Federal lower court

decisions. Accordingly, this Court

should clarify this important

constitutional area!

“The right to file an appeal is a

property interest which may not be

revoked absent due process of law.”

Kertes Ent., Inc. v. Orange Village, 593

N.E.2d 306, 307-8 (Ohio App. 1990)

(emphasized “no prejudice” to opposing

party). See also e.g. Atkinson v.

Grummon Ohio Corp., 523 N.E.2d 851 (Ohio

1988). The right to appeal is also

protected by the Equal Protection

Guarantee. Lindsey v. Normet, 405 U.S.

56, 78-80, 92 S.Ct. 862 (1972) held,

Citing, inter alia, Griffin, that the

state’s double bond requirement--which is

nowise as expensive as hiring an attorney

19

to sign a Notice of Appeal violated the

Equal Protection guarantee because

“arbitrary” and “irrational”:

...When an appeal is afforded,

however, it cannot be granted

to some litigants and

capriciously or arbitrarily

denied to others without

violating the Equal Protection

Clause.

...The claim that the double-

bond requirement operates to

screen out frivolous appeals is

unpersuasive, for it not only

bars nonfrivolous appeals by

those who are unable to post

the bond but also allows

meritless appeals by others who

can afford the bond.

(emphasis added)

Likewise, creating dividing lines between

pro se appellants in an appellate system

upon the basis of whether they are

corporate “persons” or human beings

(natural “persons”), and between

corporations that can afford to hire an

attorney to sign their Notices of Appeal

and those that cannot, are subject to the

same legal condemnation. It becomes even

more arbitrary when the issues

determining “access” to the appellate

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A iach en aA eb AA im Tete

system revolve around who signs a one

sheet piece of paper labeled Notice of

Appeal, whose sole practical function is

to give “notice” to the winning party

that the losing party is appealing that

decision! It is hardly necessary to have

an attorney sign that document; it is not

a complex legal endeavor like an

appellate brief.

In O'Day v. George Arakelian Farms,

Inc., 536 F.2d 856, 585-60 (9 Cir. 1976)

it was held that the double bond

requirement violated the Equal Protection

guarantee because “...not reasonably or

rationally related to a legitimate

governmental purpose and [it] constitutes

an effective bar to appeal.”:

Lindsey also makes clear,

however, that the requirement

imposed must be rationally

related to securing the risk

involved. Legislative

categories need not be drawn

with “mathematical nicety”

(D ri v. Williams, 397

U.S. 471, 465, 90 8.Ct. 1153,

25 L.Ed.2d 491 (1970), for

classification necessarily

involves approximation; but

legislative classifications

which are not only imprecise,

but lack rational relationship

to their avowed purpose, are

21

invalid, United States

Department of Agriculture v.

Moreno, 413 U.S. 528, 538, 93

S.Ct. 2821, 37 L.Ed.2d 782

(1973)

...In any event, the amount of

the double bond required in

this case would be beyond the

reach of many litigants.

...Thus, for this appellant, no

less than for the appellants in

Lindsey, “as a practical

matter, appeal is foreclosed,

no matter how meritorious [his]

case may be.” 405 U.S. at 79,

92 S.Ct. at O77.

(536 F.2d at 860; emphasis added)

It pointed out that “(a) cost requirement

valid on its face may offend the

Constitution as applied to a particular

case.” (536 F.2d at 861) Yet the

Wisconsin Supreme Court’s per se rule

leaves no room for appellate courts to

sort out which corporations can, and

which ones cannot, afford to pay

attorneys in given appeals to represent

them (e.g. by signing the Notice of

Appeal).

A like decision was reached in

Merchants Ass'n. v. Conger, 606 P.2d 125

(Mont. 1979) (held statutory appellate

22

requirement of filing a financial

“undertaking” “double” the amount of the

judgment, as a prerequisite to processing

the appeal, was as applied to a natural

person who could not afford to pay for

it, a violation of Equal Protection).

Likewise, a small family owned

corporation is denied Equal Protection of

the Law when the Wisconsin per se rule is

“applied to” it, as a prerequisite to

appeal adverse judgment, if it cannot

afford to have an attorney to sign the

Notice of Appeal. See also e.g., Douglas

vw. Ces teensa, 372 U.S. 353, 356-8, 83

S.Ct. 814 (1963) (held “invidious

discrimination” in violation of Equal

Protection because the “line” in criminal

appeal cases “has been drawn between rich

and poor” and “...the right to appeal

does not comport with fair procedure” for

the “indigent”; “when society acts to

deprive one of its members of his life,

liberty or property, it takes its most

awesome steps; the indigent...has only

the right to a meaningless ritual

[because of lack of finances], while the

rich man has a meaningful appeal”; Lane

v. Brown, 372 U.S. 477, 480-5, 83 S.Ct.

768 (1963); (held governed by Griffin as

violation of Equal Protection because

appeal right in effect denied to

appellants that “could [not] afford ‘to

pay for trial transcripts’”); Rinald v.

Yeager, Warden, 384 U.S. 305, 308-11,

23

—_

S.Ct. __—s«-« (1966) (held Equal Protection

violated since it requires “some

rationality in the nature of the class

Signaled out...some relevance to the

purpose for which the classification is

made” and the statutory provisions did

not apply that requirement “with an even

hand”).

These issues concerning “access” to

state appellate court systems are

generally governed by state statutes,

state judicial rules and/or state common

law principles. Historically, there has

generally been in most states a “black”

and “white” distinction between the

absolute right of all natural persons to

act as his or her own attorneys and the

reverse side of that coin, barring all

corporations from ever being able to act

in any civil lawsuit under any

circumstances via any non-attorney--even

if that person happens to be via the sole

owner, officer and director of a small

financially impoverished family owned

corporation that has no money to pay an

attorney to represent the corporation and

accordingly, could not persuade an

attorney to represent it ina civil

action. See e.g. Annotation, Propriety

Pro Se Through Agent Who is Not Attorney,

8 A.L.R. 5th 653.

This case does not deal with broad

brush constitutional issues or with

24

claimed absolute constitutional rights of

all corporations vis a vis all aspects of

civil court proceedings. This Court

would be resolving much narrower issues

triggered by the particular facts in this

case and the per se rule being applied in

this context. In the aforesaid

Annotation, the Iowa Supreme Court in

Hawkeye Bank, the lead case, pointed out

that “(w)e recognize that due process

requires the court system to be

accessible to those who are aggrieved.”

This constitutional right was also

recognized by the Supreme Court of Hawaii

in Qahu Plumbing:

“Due Process of law requires

only that the court system be

open to use by those

aggrieved...”

But when a corporation is required to

have its Notice of Appeal signed by an

attorney who it cannot afford to pay, and

hence cannot hire to represent it, there

is no meaningful “access” to the

appellate system and the courts are not

really “open” to such a corporation.

II. The Constitutional Questions

a

Accordingly, there is a need at this

time to clarify what these constitutional

guarantees do and do not mean when

applied to financially troubled small

corporations in civil actions.

III. It is only Rarely that a

The genius of our judicial system,

including the clarification and

establishment of constitutional rights,

is in the deciding of concrete cases.

This opportunity for this Court to

clarify these important constitutional

26

ee a

eck RS Cah ee <r in

issues in a civil--rather than criminal--

litigation setting may not come again for

many years!

Conclusion

This is a first class opportunity

for this Court te grapple with, and then

resolve, constitutional issues which are

important to the many common, average,

hard working citizens of this country who

have their businesses organized as

corporations, but find at time they do

not have enough money available to hire

one of the seemingly countless attorneys

who abound in this country.

Respectfully submitted this 11th day

of July, 1997.

ROSS R. KINNEY

Attorney for Petitioner

WI State Bar No. 01009043

734 Clinton Street

Waukesha, WI 53186

414-542-5363 or 414-542-5375

414-542-5746 (FAX)

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