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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1101%3A1. Public record. Not legal advice.