Petition for Writ of Certiorari — Cooney v. Orlando (No. 08-44)

7 YD) FILED

08 7 44 i JUL 0-8 2008

RK

| SUPREME COURT. U.S.

IN THE

Supreme Court of the Anited States

‘

IN RE: THE MARRIAGE OF

DEBORAH ORLANDO COONEY, F/K/A ORLANDO,

Petitioner,

Vv.

LORENZO ORLANDO,

Respondent.

On Petition for a Writ of Certiorari to the

Appellate Court of Illinois, Second District

PETITION FOR A WRIT OF CERTIORARI

THOMAS A. ZIMMERMAN, JR.

Counsel of Record

HUGH J. GREEN

ZIMMERMAN LAW OFFICES, P.C.

100 West Monroe Street

Suite 1300

Chicago, Illinois 60603

(312) 440-0020

Counsel for Petitioner

July 8, 2008

WILSON-EPES PRINTING CO..INC — (202) 789-0096 — WASHINGTON,D C 20092

QUESTIONS PRESENTED

Whether a state court rule violates the Due

Process Clause of the Fourteenth Amendment

where the rule precludes the court from

exercising its discretion, in the interest of

fundamental fairness, to allow an untimely

appeal from a court order terminating a

parent’s liberty interest to the care and

custody of her child.

Whether a state court rule violates the Due

Process Clause of the Fourteenth Amendment

“as applied” to the Petitioner Deborah Orlando

Cooney where the rule precludes the court

from exercising its discretion, in the interest of

fundamental fairness, to allow an untimely

appeal from a court order terminating her

liberty interest to the care and custody of her

child.

(i)

ll

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list identi-

fies all the parties appearing here and before the

Appellate Court of Illinois, Second District.

The Petitioner here and Appellant below is

Deborah Orlando Cooney.

The Respondent here and Appellee below is

Lorenzo Orlando.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........... eee eeeeeeeee i

PARTIES TO THE PROCEEDING ..................... i

yy SR Bee hes 8 8 yy | > vi

SP SIRI sirens scctserrsasescasevueevsesorantness 1

Se aiid sisters sks uisccianknnguvennsces 2

CONSTITUTIONAL PROVISIONS AND

SFE EF Ee APOE oniniecicccseicacneseceensssceses 2

STATEMENT OF THE CASE ......0....0.... ccc eeeees 2

REASONS FOR GRANTING THE PETITION... 6

I. PARENTS HAVE A FUNDAMENTAL

LIBERTY INTEREST IN THE CARE

AND CUSTODY OF THEIR

CIE 6 valiant cnchors con nianivatidee Renae 6

Il. SEVERAL STATE COURTS OF LAST

RESORT - HAVE DECIDED AN

IMPORTANT FEDERAL QUESTION

IN A WAY THAT CONFLICTS WITH

THE DECISIONS OF OTHER STATE -

COURTS OF LAST RESORT................... 8

A. State Courts that Allow Untimely

Appeals in the Interest of Funda-

TE FI iiiaiis vi cass sietinicsccopnchcinnen 8

B. State Courts that Preclude the Court

From Exercising Discretion to allow

RE TI hice cscs scstinensiteies 10

C. State Courts that Allow Untimely

Appeals in Criminal, but Not Civil

RE cacsoikbancisigvdn GudinemmmaaneGabemaiec, 12

iV

TABLE OF CONTENTS—Continued

D. The Federal Courts And State Courts

Allow For Extensions Due _ to

Excusable Neglect «.....0s.cccesssccossssseeeees

E. This Court Must Intervene In Order

To Address The Conflict Among

Courts of Last Resort Concerning

This Fundamental Federal Question .

Ill. ILLINOIS SUPREME COURT RULE

306(b)(1) IS UNCONSTITUTIONAL

“AS APPLIED” TO DEBORAH, AS IT

INTERFERED WITH HER FUNDA-

MENTAL LIBERTY RIGHT IN THE

CARE AND CUSTODY OF HER

IT cs wiescneneiseeiipeld aaieipshbemnersainingne dies

CONCLUSION .......... insieauieeeacianensealcaiesinatecoeea aaa aie

APPENDICES

APPENDIX A

Judgment on Remaining Issues Entered by

the Circuit Court of Winnebago County,

Illinois (Entered September 18, 2001) ...........

Memorandum of Decision entered by the

Circuit Court of Winnebago County, Illinois

Cd Fumt TI, DGD ncn ics ccccncincsicecnvenedencess

Order of the Circuit Court of Winnebago

County, Illinois Incorporating Memorandum

of Decision (Entered June 20, 2007) ..............

Notice of Appeal in the Circuit Court of

Winnebago County, Illinois (Filed July 31, —

SPEED snissrmnnintincicecnpiihinnenauadammmmnatar ia

Page

13

14

15

18

la

5a

16a

18a

V

TABLE OF CONTENTS—Continued

Page

APPENDIX B

Brief of Petitioner-Appellant Deborah Cooney

in the Appellate Court of Illinois, Second

District (Filed September 25, 2007) ................ 19a

APPENDIX C

Notice of filing with the Appellate Court of

Illinois, Second District Rule 23 Order (Filed

is si sx. cucvisensninadssnannensadveribocenecte 92a

APPENDIX D

Deborah Cooney’s Petition for Rehearing in

the Appellate Court of Illinois, Second

District (Filed January 28, 2008).................... 142a

Appellate Court of Illinois, Second District’s

Order Denying Deborah Cooney’s Petition

for Rehearing (Entered February 8, 2008) ..... 160a

Deborah Cooney’s Petition for Appeal as a

Matter of Right in the Supreme Court of

Illinois (Filed March 14, 2008) ....................... 16la

Supreme Court of Illinois Order Denying

Deborah Cooney’s Petition for Leave to

Appeal as a Matter of Right ..................sssseesees 188a

Illinois Supreme Court Rule 306..................... 189a

vi

TABLE OF AUTHORITIES

CASES

Advance Estimating Sys., Inc. v. Riney

130 F.3d 996 (ilth Cir. 1996)...................000

Bass v. Commonwealth

401 A.2d 1133, 1135 (Pa. 1979) ...................

Bryant v. State

207 S.W.3d 657 (Ark. 2008) ...............sssesceees

Cafeteria Workers v. McElroy

EE AE as AED cxncinsestesevencucessesesionescenis's

City of Chanute v. Williams Natural Gas Co.

31 F.3d 1041 (10th Cir. 1994) ............0sc00000

Delapp v. Delapp

584 S.E.2d 899 (W.Va. 2003)..................00000

Fink v. Union Cent. Life Ins. Co.

65 F.3d 722, 724 (8th Cir. 1995)..................

Griswold v. Connecticut

SO Be We 0 EE visi deca ceniasicccescsvedecoccsesexeves

Halicki v. Louisiana Casino Cruises, Inc.

151 F.3d 465 (5th Cir.1998) ..............cccceeeeeee

In re A.D.T.

Me Re BE ints ves cncssesckcancisocnnsucss

In re AK.V.

FF Fa CAs, FAD sawexdsesavaccesnscescssvsncs

In re Doe

91 P.3d 465 (Haw. 2004) ..............................

In re K.L.

91 S.W.3d 1 (Tex. Ct. App. 2002).................

In re T.M.C.

988 P.2d 241 (Kan. App. 1999) ....................

Page

11

15

Vil

TABLE OF AUTHORITIES—Continued

Page

In re Marriage of Kostusik

361 Ill.App.3d 103 (Ill.App. Dist. 2005)....... 12

In the Interest of Jane Doe

LOG FSG TO CBW, BOO) osccccsscccnsocagpeesesvecece 11

In the Matter of J.R.

655 N.W.2d 1 (Minn. 2003) ............ccccsscesseses 11

Joint Anti-Fascist Refugee Committee

v. McGrath

GE 5 i iti 7

Lassiter v. Department of Social Services

of Durham County, N.C.

I Saas I ia iissks intavnnvscdndncaneviaccainss 7

Lulay v. Lulay

FOO Tice GAL (EE. ZOOG) .0020cccccescossnsecevesaces 16

Manning v. State

ZZ PSG GAS (UCB BOS)... .0cscccsvevsscecesereres 9-10

Meyer v. Nebraska

Be Bie PD vidcerevixcisevticccemiecsenaenen 6-7

People v. Golden

369 Ill. App.3d 639 (Ill. App. Dist. 2006) ..... 12

People v. Perez

115 Ill.App.3d 446 (Ill. App. Dist. 1983) ..... 12

Pioneer Investment Services Co. v.

Brunswick Associates Ltd. Partnership

GPT AF Be, ee CE eechnsadaiccscesossccessasnseces 8-9, 13-15

Prizevoits v. Indiana Bell Tel. Co.

76 FOG 157 CTU Gam; BS) onc ovcesevievccsvecsacns 14

vill

TABLE OF AUTHORITIES—Continued

Page

Reynolds v. Wagner

55 F.3d 1426 (Sth Cir. 1995) .............ccccsceees 14

Santosky v. Kramer

EE, SEE RUEIED occccscrecssoseseceveossscestussvoeess 15

Skinner v. Oklahoma

Be IE CRUPEIED csccsscvcescccesesceveversesveveeseess 7

Smith v. Arkansas Dept. of Health & Human

Services

No. 07-1066, 371 Ark. 425, 2007 WL

3197222 (Ark. Nov. 1, 2007)............0..cc000 10

Stanley v. Illinois

I EE RIPE IED scccuscaressccevecosexvsecarenvesesase 6-7

State v. Ortiz

BGO F.2e 12500 (RAN. 196Z).......cccscvcceseosssceses 9

State v. Johnson

RE SD) ) rere 9

Thompson v. E.I. Dupont de Nemours & Co.

76 F.3d 530 (4th Cir. 1996) ............cccssscccssess 14

Troxel v. Granville

NE ED vcccccvecsscvescasescssesssacenvactvecss 6, 16

U.S. v. Booker

ES ED CIMEIEIEDD yc cssccccssssvecceccossesessenseseees 16

Virella-Nieves v. Briggs & Stratton Corp.

So F.20 451 Cist Cir. 1995) ................cccscceeee 14

Weinstock v. Cleary

1G F.3e SO1 (2d Cir. 1994)............cscccccscccesees 14

White v. White

173 P.3d. 78 (Okla. 2OO7) ...........cccccccccevccesees 8

ix

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS Page

iy Cs I SR i iniccrsscrecencscessenecenrvenees 7

U.S. Const. amend. XIV, § 1 ....... aldara 2-3, 7

STATUTES, REGULATIONS

& LEGISLATIVE MATERIALS

Federal Statues and Rules of Procedure

rs Ae BE ictiiccenvssewaccovesinscaccecvenceeies 2

a es ae ititiccscndcesévimaiscsosideisentsies 2

Ot. Fe. ROD. F. GRRGIA).0..cccscsscscscccsovssssvseess 13-14

4 eS A ot) 13-14

State Court Rules of Procedure

Ry I eI Sidi ceusdesisnotsveviceecenseneicien 14

Ce Me I IND av caccensecnasesecnexanicssnives 14

ee 8 |) eee nnn 14

i Ne iia ides icceencsncaadeaciersicocesive 2,12

Fels SG, Bie IUD evcoseccexesneccesienseneces 5, 11, 17

Fe Ns es i IE arin rcosveseccvsccuacsceccsmniniina 4,16

In. Sup. Ct. R. SOG(HX1) ...........00000 5, 11-12, 17-18

ey ee IG SI si ciitscintacenvinyvicensiaishconencl 14

BN Tie PI I bss sensesacncdececiveccsecsvivevens 14

is i I IEC I se sticce cin nsacctdcsscnscaniesverens 14

N.M. R. App. P. 12-201 (EX2) ............0ccceceee 14

ee UE ei gaveienencccvtneskiniasncsseveeses 14

eee a S| | enna 14

TO I Fe ND eidkerercdcd etree, 14

ee We Oitcncateoe tra renscaavicnavivasnduigareuaes 14

x

TABLE OF AUTHORITIES—Continued

State Statutes Page

Ne EE wiiiinitaicserencercsinisincusetsanesactseres 3

Fe Re CPD TUIR ED sennssecccecssarcsosenvercnsensesens 16

IN THE

Supreme Court of the Anited States

No. 07-__

IN RE: THE MARRIAGE OF

DEBORAH ORLANDO COONEY, F/K/A ORLANDO,

Petitioner,

Vv.

LORENZO ORLANDO,

Respondent.

On Petition for a Writ of Certiorari to the

Appellate Court of Illinois, Second District

PETITION FOR A WRIT OF CERTIORARI

DECISIONS BELOW

The order of the Supreme Court of Illinois denying

leave to appeal is reprinted in the Appendix. (“Pet.

App.”) at 188a. The unpublished opinion of the

Appellate Court of Illinois, Second District is reprinted

in the Appendix to the Petition. Pet. App. at 92a-

141a. The order of appellate court denying Peti-

tioner’s motion for rehearing is reprinted in the

Appendix. Pet. App. at 160a. The memorandum and

decision of the circuit court of Winnebago County,

Illinois entered June 20, 2007 is unpublished and

reprinted in the Appendix. Pet. App. at 5a-15a.

2

JURISDICTION

The Appellate Court of Illinois, Second District

entered its order on January 7, 2008. On April 9,

2008, the Illinois Supreme Court denied Petitioner’s

petition for leave to appeal. Pet. App. at 188a. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

28 U.S.C. § 2403(b) may apply, as the constitu-

tionality of Illinois Supreme Court Rule 306 is drawn

into question. Pursuant to United States Supreme

Court Rule 29.4, the Attorney General of Illinois has

been served with this petition.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Fourteenth Amendment provides, in relevant

part: “All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No 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, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1.

The relevant provisions the Illinois Supreme Court

Rules (Ill. Sup. Ct. R. 306) are reprinted in the

Appendix. Pet. App. at 189a-196a.

STATEMENT OF THE CASE

This petition seeks review of a decision of the

Appellate Court of Illinois, Second District, from

which the Supreme Court of Illinois denied leave to

appeal. The important federal question is a parent’s

basic fundamental rights under the Fourteenth

3

Amendment. At issue is a state court rule which

precludes a reviewing court from exercising its

discretion, in the interest of fundamental fairness, to

allow an untimely appeal from a court order termi-

nating a parent’s liberty interest to the care and

custody of her children.

This Court’s intervention is required, as several

state courts of last resort have decided this important

federal question differently and are in conflict.

A. Factual Background.

On June 15, 1998, the circuit court of Winnebago

County, Illinois, granted a divorce to the Petitioner

Deborah Orlando Cooney (“Deborah”) and the Re-

spondent Lorenzo Orlando (“Lorenzo”). Pet. App. at

94a. Two sons had been born to the marriage. On

September 18, 2001, the circuit court issued the final

judgment on custody, granting permanent custody

to Deborah with visitation for Lorenzo pursuant to a

previously entered co-parenting agreement. Pet. App.

at 94a. The boys were then 11 and 9 years of age.

On June 14, 2005, the circuit court, in the presence

of the parties’ attorneys, received the report of a

custody investigator, previously appointed pursuant

to 750 ILCS 5/605. Pet. App. at 99a. The circuit

court then entered a protective order, directing the

attorneys not to disclose or discuss the contents of the

Report with their clients and ordering both parents

and children to be present in court the next day

without explanation for the mandate. Pet. App. at

99a-100a.

On June 15, 2005, Lorenzo filed an emergency

petition for a temporary change in custody, ostensibly

based on the conclusions and recommendations of the

investigator’s report which, in part, recognized that

4

Deborah had been the boys’ primary caregiver since

their births. Deborah was then allowed to read the

33-page report while in court, although the governing

statute required the receipt of such reports by the

parties at least ten (10) days prior to any hearing.

Pet. App. at 100a.

The circuit court granted Respondent Lorenzo’s

emergency petition for a temporary change of custody

which provided that the children have “no contact”

with Deborah. Deborah’s counsel never informed her

of the need to file an appeal of the custody determina-

tion within five (5) business days, pursuant to Il.

Sup. Ct. R. 306(b). Pet. App. at 149a. On the day of

the appeal deadline, Deborah’s attorney served her

with his motion to withdraw. Pet. App. at 149a.

Deborah subsequently filed an appeal; however, it

was deemed untimely. Pet. App. at 120a. As a result

of the circuit court’s grant of custody to Lorenzo,

Deborah was denied visitation with her children for

almost two years, prior a formal custody hearing.

In June 2007 — after nearly two years of Deborah

having no contact with her children — the circuit

court conducted a custody hearing. On June 20,

2007, the circuit court entered a memorandum of

decision formally denying Deborah visitation with

her children. Pet. App. at Illa. On July 31, 2007,

Deborah appealed the circuit court’s decision. Pet.

App. at 18a.

The appellate court reversed in part and affirmed

in part the trial court’s ruling, dismissing the heart of

Deborah’s argument that the patent violation of her

due process rights on June 15, 2005 tainted the

outcome of the final custody proceeding in 2007. The

court stated, “we need not reach the merits of this

argument...” Pet. App. at 119a. The appellate

9)

court rested its conclusions on Ill. Sup. Ct. R. 306(b)(1),

which required that a petition for leave te appeal an

order affecting the care and custody of unemanci-

pated minors must be filed within five (5) business

days of the entry of the order, and that Deborah

failed meet that deadline. Pet. App. at 119a-120a.

This constitutional issue arose for the first time in

and as a result of the appellate court’s ruling. Pet.

App. at 164a-165a. Accordingly, Deborah raised this

issue in her motion for rehearing in the appellate

court, but the appellate court denied Deborah’s motion

without comment.

Thereafter, Deborah filed a petition for leave to

appeal to the Illinois Supreme Court. In her petition,

Deborah argued the unconstitutionality of the rigid

application of Ill. Sup. Ct. R. 306(b)(1) stating that

the rule: (1) was unconstitutional as it denied

Deborah her due process rights under the Fourteenth

Amendment as to the care and custody of her

children; and (2) was unconstitutional “as applied”

to her under the circumstances. Pet. App. at 165a.

However, the Illinois Supreme Court denied Deborah’s

petition for leave to appeal without comment. Pet.

App. at 188a.

B. Proceedings Below

On June 15, 2005, the trial court granted Respon-

dent Lorenzo’s emergency petition for a temporary

change of custody which provided that the children

have “no contact” with Deborah. Pursuant to Il. Sup.

Ct. R. 306(a)(5), Deborah filed a petition for leave

to appeal the trial court’s order granting a tempo-

rary change of custody and the no contact order.

However, Deborah’s counsel failed to timely perfect

the appeal. Pet. App. at 119a-120a.

6

In June 20, 2007, the circuit court of Winnebago

County, Illinois entered a Memorandum of Decision

formally denying Deborah visitation with her chil-

dren. Pet. App. at llla. On July 31, 2007, Deborah

appealed the circuit court’s decision. Pet. App. at 18a.

The Illinois Appellate Court, Second District issued

an order on January 7, 2008, affirming in part, re-

versing in part and remanding the cause. Pet. App.

at 14la. Deborah’s petition for rehearing was denied

by the appellate court on February 8, 2008. Pet. App.

at 160a.

On April 9, 2008, the Illinois Supreme Court

denied Deborah’s petition for leave to appeal. Pet.

App. at 188a.

REASONS FOR GRANTING THE PETITION

I. PARENTS HAVE A FUNDAMENTAL

LIBERTY INTEREST IN THE CARE AND

CUSTODY OF THEIR CHILDREN.

This Court has recognized parents’ fundamental

rights to the care, custody and control of their chil-

dren: “The liberty interest . . . of parents in the care,

custody, and control of their children is perhaps the

oldest of the fundamental liberty interests recognized

by this Court.” Troxel v. Granville, 530 U.S. 57, 65

(2000). This Court described the rights of a mother

“to the care, custody, management and companion-

ship of her minor children” as “([rlights far more

precious . . . than property rights.” The right to

conceive and to raise children has been deemed

“essenti..” Stanley v. Illinois, 405 U.S. 645, 651

(1972), citing Meyer v. Nebraska, 262 U.S. 390, 399

(1923), and has been deemed a “basic civil right of

7

man.” Stanley, 405 U.S. at 651, citing Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942).

“The integrity of the family unit has found protec-

tion in the Due Process Clause of the Fourteenth

Amendment (Meyer, 262 U.S. at 399), the Equal

Protection Clause of the Fourteenth Amendment,

(Skinner 316 U.S. at 541), and the Ninth Amendment

(Griswold v. Connecticut, 381 U.S. 479, 496 (1965)

(Goldberg, J., concurring)).” Stanley, 405 U.S. at 651.

But, as this Court has noted: “For all its conse-

quence, ‘Due process’ has never been, and perhaps

can never be, precisely defined. ‘{U]nlike some legal

rules, this Court has said, due process ‘is not a

technical conception with a fixed content unrelated to

time, place and circumstances.” Cafeteria Workers v.

McElroy, 367 U.S. 886, 895 (1961), quoting, Joint

Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123, 162-163 (1951).

“Rather, the phrase expresses the requirement of

‘fundamental fairness,’ a requirement whose meaning

can be as opaque as its importance is lofty. Applying

the Due Process Clause is therefore an uncertain

enterprise which must discover what ‘fundamental

fairness’ consists of in a particular situation by first

considering any relevant precedents and then by

assessing the several interests that are at stake.”

Lassiter v. Department of Social Services of Durham

County, N.C., 452 U.S. 18, 24 (1981).

In this case, Deborah’s liberty interests with

respect to her care, treatment and custody of her

minor children are fundamental liberty mghts that

are afforded constitutional due process protections.

8

Il. SEVERAL STATE COURTS OF LAST

RESORT HAVE DECIDED AN IMPOR-

TANT FEDERAL QUESTION IN A WAY

THAT CONFLICTS WITH THE DECI-

SIONS OF OTHER STATE COURTS OF

LAST RESORT.

A. State Courts that Allow Untimely

Appeals in the Interest of Fundamen-

tal Fairness.

Several state courts of last resort have allowed

untimely appeals in the interest of fundamental

fairness.

Oklahoma: In a divorce case seeking a modifica-

tion of custody, the Supreme Court of Oklahoma

found that “rigid adherence” to a procedural rule was

a “particularly egregious abuse of discretion.” White

v. White, 173 P.3d. 78, 80 (Okla. 2007). The Okla-

homa Court concluded, “A request for modification

of child custody is far too important to be decided

essentially by default under the Rules for the District

Courts. Those rules were established to facilitate

the adjudication of civil disputes, not to impede the

presentation of evidence in a child custody dispute.”

Id. at 81.

West Virginia: The Supreme Court of West

Virginia, in a divorce case where an attorney failed to

file a petition for review within a ten-day deadline,

wrote, “This Court said that ‘it is generally held that

an attorney's negligence will not serve as a basis for

setting aside a default judgment on the grounds

of ‘excusable neglect.” Delapp v. Delapp, 584 S.E.2d

899, 904 (W.Va. 2003). However, the West Virginia

court looked to this Court’s holding in Puloneer

Investment Services Co. v. Brunswick Associates Ltd.

Partnership, 507 U.S. 380 (1993) which found that

9

“excusable neglect” encompasses situations in which

the failure to comply with a filing deadline is attrib-

utable to negligence. Delapp, 584 S.E.2d at 904,

citing, Pioneer, 507 U.S. at 394. FolNowing this Court’s

holding in Pioneer, the West Virginia Supreme Court

found “excusable neglect” and reversed and remanded

the case for review. Delapp 584 S.E.2d at 904.

Kansas: In State v. Ortiz, the Supreme Court of

Kansas, in the interest of fundamental fairness,

recognized an exception to the rule conferring juris-

diction on the appellate court only if a timely appeal

is perfected, where a criminal defendant either was

not informed of his right to appeal or where his

attorney failed to perfect and complete an appeal.

640 P.2d 1255, 1258 (Kan. 1982). In re T.M.C.

extended the fundamental fairness exception as

explained in Ortiz to civil proceedings — specifically to

civil proceedings involving the termination of paren-

tal rights. 988 P.2d 241, 244 (Kan.App. 1999). The

court stated: “It is well-settled that basic parental

rights are fundamental rights protected by the Four-

teenth Amendment,” and the court held “we conclude

it is proper to apply the fundamental fairness excep-

tion to an untimely appeal from a termination order.”

Id. at 243.

Utah: In State v. Johnson, the Supreme Court of

Utah held that an attorney’s failure to perfect an

appeal was grounds for allowing the appellate court

to take jurisdiction over what would otherwise have

been an untimely appeal. 635 P.2d 36, 38 (Utah

1981). Thereafter, in Manning v. State, the Utah

Supreme Court set forth circumstances in which the

court could reinstate the time frame for filing an

appeal. 122 P.3d 628, 636 (Utah 2005). One such

circumstance is where “the court or the defendant’s

10

attorney failed to properly advise defendant of the

right to appeal.” Jd., at 636. The Manning court

concluded that “the right to appeal may then be

restored if it is in the interest of fundamental

fairness to do so.” Id., at 639.

Arkansas: In Bryant v. State, the Supreme Court

of Arkansas set forth two possible grounds for allow-

ing the filing of an untimely appeal, where “either the

party or attorney filing the appeal is at fault, or there

is good reason that the appeal was not timely per-

fected.” 207 S.W.3d 557, 557 (Ark. 2005). In Bryant,

the attorney filed a motion in which he “candidly

admitted fault,” and therefore the court allowed the

untimely appeal. Jd., at 557; see, also, Smith v.

Arkansas Dept. of Health & Human Services, No. 07-

1066, 371 Ark. 425, 2007 WL 3197222 (Ark. Nov. 1,

2007) (a termination of parental rights case in which

the court allowed an untimely appeal even though

the notice of appeal was deficient).

Vermont: The Supreme Court of Vermont, in a

case involving the termination of parental rights and

an untimely appeal, wrote: “Considering the impor-

tant rights at stake in this case, the reasons for

the mother’s untimely appeal, and the fact that the

parties have argued the merits of mother’s appeal in

their briefs, we address the substance of mother’s

appeal to advance the interests of justice and fun-

damental fairness.” Jn re A.D.T., 817 A.2d 20, 25 (Vt.

2002).

B. State Courts that Preclude the Court

From Exercising Discretion to allow

Untimely Appeals.

Minnesota: The Supreme Court of Minnesota, in

a case involving the termination of parental rights

11

where an attorney failed to serve a notice of appeal

on a party within 30 days as required by statute, did

not excuse the error. The majority wrote: “A good

cause exception at the appellate court level would

eviscerate the uniform, impartial application of the

rules. The rules as a whole are replete with

provisions containing definite deadlines specifically

‘designed to expedite the final resolution of litigation,

with due consideration to fairness and certainty of

procedure.” In the Matter of J.R., 655 N.W.2d 1, 4

(Minn. 2003). Two justices, while concurring in the

result, dissented in part, saying: “There are times

when we must be able to look beyond procedural

rules in order to act in the interests of justice.” Jd. at

6. (Justices Anderson and Page dissenting in part).

Hawaii: The Supreme Court of Hawaii strictly

adhered to a twenty-day filing rule in dismissing a

mother’s appeal of a decision awarding permanent

custody of her child to a state agency. Jn the Interest

of Jane Doe, 100 P.3d 75 (Haw. 2004). Indeed, the

Hawaii Supreme Court took that opportunity to

overrule it’s own decision in Jn re Doe, 91 P.3d 485

(Haw. 2004) made earlier that same year. The

Supreme Court of Hawaii stated: “Consequently, we

overrule the jurisdictional holding of Jn re John Doe,

reaffirm that a timely motion for reconsideration is a

prerequisite to an appeal... and hold that, absent

compliance with the statute, we lack jurisdiction, and

the appeal must be dismissed.” Jn the Interest of

Jane Doe, 100 P.3d at 77.

IHlinois: Pursuant to Ill. Sup. Ct. R. 306(a)(5), a

party is permitted to file a petition for leave to appeal

a temporary change of custody. See, Ill. Sup.Ct. R.

306(a)(5). The timing in which to file such a petition

is governed by Ill. Sup. Ct. R. 306(b)(1) which pro-

12

vides, in relevant part: “The petition, supporting

record and the petitioner’s legal memorandun,, if any,

shall be filed in the appellate court within five busi-

ness days of the entry or denial of the order from

which review is being sought. . .” Ill. Sup.Ct. R.

306(b)(1). Furthermore, under Illinois law, a tempo-

rary custody order can only be appealed on an

interlocutory basis as provided for in the [Illinois

supreme court rules. In re Marriage of Kostusik, 361

Ill.App.3d 103, 108 (Ill.App. Dist. 2005).

C. State Courts that Allow Untimely

Appeals in Criminal, but Not Civil

Cases.

Illinois: In Illinois, the court has the power to

allow a late notice of appeal in criminal cases. People

v. Golden, 369 Ill.App.3d 639, 645 (Ill. App. Dist.

2006). A late notice of appeal may be filed in a

criminal case in Illinois “to promote the concept of

fundamental fairness.” People v. Perez, 115 Ill.App.

3d 446, 451 (Ill. App. Dist. 1983).

Unlike criminal cases, Illinois state courts have no

discretion to allow untimely filed appeals in civil

cases, including cases that affect a parent’s funda-

mental right to the care and custody of her children.

Ill. Sup. Ct. R. 306 provides that an appeal from an

order concerning the care and custody of minors must

be filed with appellate court within five (5) business

days, rather than the usual thirty (30) day deadline

to appeal other final orders. See Ill. Sup. Ct. R.

306(b)(1). Thus, in Illinois there is a dichotomy in

allowing appeals in criminal but not civil cases, even

though fundamental liberty interests are at issue in

both criminal cases and in civil cases terminating

parentai rights.

13

D. The Federal Courts And State Courts

Allow For Extensions Due ito

Excusable Neglect.

Federal Rule of Appellate Procedure 4(a)(5) per-

mits the district court to extend the time for filing

an appeal in a civil case if the party seeking the

extension shows excusable neglect or good cause.

Fed. R. App. P. 4(a)(5)(ii). A party may make a motion

for an extension before the time for appeal has run or

within a thirty-day grace period after the time for

appeal has expired. Fed. R. App. P. 4(a)(5)(i).

The good cause standard applies in situations

where the delay was not due to fault, excusable or

otherwise. Traditionally, the excusable neglect stan-

dard is applied in situations where there is fault or

the delay is within the control of the movant.

This Court in Pioneer Investment Services uv.

Brunswick Associates moved beyond the “excusable

neglect” standard and adopted a “flexible standard”

that takes into account all of the relevant circum-

stances. 507 U.S. 380, 395 (1993). Such circum-

stances include: “the danger of prejudice to [the

nonmoving party], the length of the delay and its

potential impact on judicial proceedings, the reason

for the delay, including whether it was within the

reasonable control of the movant, and whether the

movant acted in good faith.” Jd. at 395. This Court

held that “excusable neglect is understood to encom-

pass situations in which the failure to comply with a

filing deadline is attributable to negligence.” Jd. at

394. Furthermore, the determination of whether fail-

ure to abide by a specified time limit constitutes

excusable neglect is an equitable one. Jd. at 395.

14

Although Pioneer was based on bankruptcy law, its

excusable neglect standard has been adopted by a

majority of the federal circuits as the proper standard

for district courts to apply when exercising discretion

of whether to extend the time to appeal a civil case

under Rule 4(a)(5).’

Moreover, several states have enacted rules that

are similar to Rule 4(a)(5) and allow the trial court

to extend the time for appeal under a showing of

excusable neglect.’ Furthermore, Colorado allows its

appellate courts to extend the time for appeal (Colo.

R. App. P. 4(a)), while Pennsylvania allows late

appeals in instances of non-negligence. Bass v. Com-

monwealth, 401 A.2d 1133, 1135 (Pa. 1979).

E. This Court Must Intervene In Order

To Address The Conflict Among

Courts of Last Resort Concerning This

Fundamental Federal Question.

In this instance, the federal courts and numerous

state courts allow for untimely appeals under the

rubric of excusable neglect. The rule in Illinois that

' See, e.g., Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d

465, 469 (5th Cir.1998); Prizevoits v. Indiana Bell Tel. Co., 76

F.3d 132, 134 (7th Cir. 1996); Thompson v. E.J. Dupont de

Nemours & Co., 76 F.3d 530, 533 (4th Cir. 1996); Advance

Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997-98 (llth Cir.

1996); Virella-Nieves v. Briggs & Stratton Corp., 53 F.3d 451,

454 (ist Cir. 1995); Fink v. Union Cent. Life Ins. Co., 65 F.3d

722, 724 (8th Cir. 1995); Reynolds v. Wagner, 55 F.3d 1426, 1429

(9th Cir. 1995); Weinstock v. Cleary, 16 F.3d 501, 503 (2d Cir.

1994); City of Chanute v. Williams Natural Gas Co., 31 F.3d

1041, 1046 (10th Cir. 1994).

* See, e.g., D.C. Ct App. R. 4(a)(4); Haw. R. App. P. 4(a)(5); Me.

R. App. P. 2(bX3); Miss. R. App. P. 4(g); Mont. R. App. P. 4(6);

N.M. R. App. P. 12-201(E)(2); N.D. R. App. P. 4(a); R.I. Sup.Ct.

Art. 1, R. 4(a); Utah R. App. P. 4(e); Vt. R. App. P. 4.

15

precludes a court from exercising discretion to hear

an untimely appeal violates parents’ fundamental

rights with respect to the care and custody of their

children, and the rule is in conflict with numerous

other jurisdictions. Although a parent may have a

civil suit against her attorney for failing to perfect an

appeal, an action for attorney malpractice is a wholly

inadequate remedy for the violation of a fundamental

liberty interest.°

Just as this Court in Pioneer adopted a “flexible

standard” that takes into account all of the relevant

circumstances, this Court should extend this flexible

standard to state courts when the termination of

parental rights is at issue. Illinois’ rigid approach

violates the Petitioner’s constitutional rights and

must be remedied.

It. ILLINOIS SUPREME COURT RULE

306(b)(1) IS UNCONSTITUTIONAL “AS

APPLIED” TO DEBORAH, AS IT INTER-

FERED WITH HER FUNDAMENTAL

LIBERTY RIGHT IN THE CARE AND

CUSTODY OF HER CHILDREN.

When a litigant claims that a statute is unconstitu-

tional “as applied” to her, and the statute is in fact

* See In re AK.V., 747 A.2d 570, 576-77 (D.C. 2000) (stating

that the usual remedy of money damages in a civil case for

misfeasance or nonfeasance of counsel is “wholly inadequate in

a neglect case”); In re K.L., 91 S.W.3d 1, 11 (Tex. Ct. App. 2002)

(stating that money damages are inadequate in termination

cases where the effect of counsel’s deficiencies may be irrevo-

cable). In presenting its holding, the court in K.L. cited to

Santosky v. Kramer, 455 U.S. 745, 759 (1982) for the proposition

that termination of parental rights cases differ from other civil

cases in that once affirmed, the result is final and irrevocable.

K.L., 91 S.W.3d at 11.

16

unconstitutional as applied, the Court normally in-

validates the statute only as applied to the litigant in

question. U.S. v. Booker, 543 U.S. 220, 314 (2005).

The Court does not strike down the statute on its

face. Id.

In Troxel v. Granville, supra, this Court held a

Washington state statute unconstitutional “as applied”

in that the statute allowed the state court to infringe

upon a parent’s fundamental right to make child-

rearing decisions by ordering visitation to a non-

parent. This Court stated that “[tl]he liberty interest

in this case — the interest of parents in the care,

custody, and control of their children — is perhaps the

oldest of the fundamental liberty interests recognized

by this Court.” 530 U.S. at 65-66. This Court went

on to rule that the combination of several factors

“compels our conclusion that [the Washington statute],

as applied, exceeded the bounds of the Due Process

Clause.” Id. at 65-69.

An analogous case is Lulay v. Lulay, 739 N.E.2d

521 (Ill. 2000), in which the Illinois Supreme Court

found section 607(b)(1) of the Illinois Marriage and

Dissolution of Marriage Act unconstitutional as

applied to the facts of that case, as it was an uncon-

stitutional infringement on the parents’ fundamental

liberty interest in raising their children. 739 N.E.2d

at 534.

Looking at the specific facts of this case, Ill. Sup.

Ct. R. 306(b) is unconstitutional as applied to Deborah,

as it infringed on her fundamental liberty interest in

the care and custody of her children.

On June 15, 2005, without a hearing and in

violation of Illinois law, the trial court granted

Lorenzo’s emergency petition for a temporary change

17

of custody, further providing that there be “no

contact” with Deborah, even though she had been

the children’s primary caretaker since their births.

Pursuant to Ill. Sup. Ct. R. 306(a)(5), Deborah was

permitted to file a petition for leave to appeal the

temporary change of custody and the no contact

order. The timing in which to file her petition was

governed by IIl. Sup. Ct. R. 306(b)(1) which provides,

in relevant part: “The petition, supporting record and

the petitioner’s legal memorandum, if any, shall be

filed in the appellate court within five business days

of the entry or denial of the order from which review

is being sought...” Thus, pursuant to Ill. Sup. Ct. R.

306(b)(1), Deborah’s petition for leave to appeal was

to be filed in the appellate court on or before June 22,

2005. However, Deborah’s counsel, Mr. Alex Abate,

failed to timely perfect the appeal. Pet. App. at 119a-

120a.

Instead, on June 22, 2005 — the day the petition for

leave to appeal was due — Mr. Abate served Deborah

with his Motion to Withdraw as Deborah’s counsel.

One week after the anpeal deadline — on June 29,

2005 — Mr. Abate filed his Motion to Withdraw,

which the trial court granted on that same day. Pet.

App. at 149a.

In granting Lorenzo’s emergency petition for a tem-

porary change in custody and entering the no contact

order, the circuit court clearly erred in taking

Deborah’s children away without any notice, hearing

or findings whatsoever. Even the appellate court

noted that no testimony or evidence was taken at

the June 15, 2005 “hearing.” Pet. App. at 100a.

Fundamental fairness dictates the reinstatement of

Deborah’s right to appeal the order and its resulting

impact on the subsequent June 2007 hearing, as such

18

a rigid application of Ill. Sup. Ct. R. 306(b)(1) is

unconstitutional as applied to Deborah under these

circumstances.

CONCLUSION

For the reasons stated, the Court should grant this

petition.

Respectfully submitted,

THOMAS A. ZIMMERMAN, JR.

Counsel of Record

HUGH J. GREEN

ZIMMERMAN LAW OFFICES, P.C.

100 West Monroe Street

Suite 1300

Chicago, Illinois 60603

(312) 440-0020

Counsel for Petitioner

July 8, 2008