Transcript

IN THE SUPREME COURT OF THE UNITED STATES

LAVERNE L. LOGAN, Appellant v. ZIMMERMAN BRUSH COMPANY

No. 80-5950

October 14, 1981

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:05 o'clock p.m.

APPEARANCES:

GARY H. PALM, ESQ., Chicago, Illinois; on behalf of the Appellant.

JAY A. CANEL, Chicago, Illinois, on behalf of the Appellees.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in Logan against Zimmerman Brush Company.

Mr. Palm, you may proceed whenever you are ready.

ORAL ARGUMENT OF GARY H. PALM, ESQ., ON BEHALF OF THE APPELLANT

MR. PALM: Mr. Chief Justice, and may it please the Court, the question presented in this case is whether Mr. Logan's rights to due process and equal protection of the laws were violated by the Illinois Supreme Court's decision that his employment discrimination action should be terminated solely because the Fair Employment Practices Commission failed in its duty to hold a factfinding conference within the 120-day time period.

QUESTION: That is basically a question of state law, isn't it?

MR. PALM: Well, the question of state law is whether or not an entitlement has been created with the reasonable expectation that Mr. Logan would not be deprived of that entitlement, but upon a showing of cause.

QUESTION: But I mean the question of whether or not the thing was jurisdictional is a question of state law.

MR. PALM: Well, my argument is that if it's a procedure, then it must be governed by the procedural requirements of due process, and that this is in accordance with this Court's holdings in Arnett v. Kennedy and Vitec v. Jones.

QUESTION: Well, certainly all procedures have to be governed by the Fourteenth Amendment, but insofar as the Illinois FEPC's inability to proceed further without having done its work within 120 days, that is a question of state law.

MR. PALM: Well, there are two different things. The question of whether or not they actually failed to do -- to hold a factfinding conference within 120 days might well be a matter of state law. The consequence for that is a matter that the Illinois Supreme Court has arrived at as state law interpretation of the Fair Employment Practices Act, but our contention is that that interpretation is a procedure, because it terminates Mr. Logan's rights without a hearing, without a decision on the merits, without any decision whatsoever, indeed, and without any consideration in the form of notice being provided to Mr. Logan, and is therefore an invalid procedure --

QUESTION: Under the Fourteenth Amendment.

MR. PALM: -- restricting the substantive entitlement under the -- I'm sorry.

QUESTION: Under the Fourteenth Amendment.

MR. PALM: Under the Fourteenth Amendment, yes. In other words, it is our position that the entitlement is created by state law, and then after the entitlement is created, it is the state's -- it is the constitution, the Fourteenth Amendment which determines what procedures must be provided.

We believe, as I have indicated, that Mr. Logan's rights were violated here because he did not get a decision on the merits of his case and yet he lost, even though he did all that the statute imposed upon him to do. First of all, he filed his charge within five days after he was fired by the Zimmerman Brush Company. That was well within the 180-day limitation period provided in the Fair Employment Practices Act.

Secondly, his charge set out allegations sufficient to establish an Unfair Employment Practice Act -- violation, excuse me, and was referred to the investigator to conduct the investigation.

Third, Mr. Logan did appear at the time indicated to him for the factfinding conference, and at that time he was ready to proceed.

Fourth, after the Zimmerman Brush Company sought a writ of prohibition from the Illinois Supreme Court, Mr. Logan filed a second charge alleging the identical facts, and this charge, too, was timely. It was filed within the 180-day requirements, limitation requirements set forth in the Fair Employment Practices Act.

To establish that his rights to due process were violated, we have to establish first that there is a property right, and secondly either that the procedures utilized by the State of Illinois to deprive him of that property right were inadequate under the procedural requirements of due process, or that the procedures which amount to a defense here provided to the company are wholly arbitrary and irrational, and therefore violate substantive due process.

Mr. Logan had a property interest in this case. In order to determine that, we must consider whether he had a justifiable expectation that he would receive the benefits conferred by the state unless there was some cause to disentitle him to those benefits.

What are the benefits here? The benefit is created by the state law, the Fair Employment Practices Act, that he be free from discrimination in employment. That is, that what would have been otherwise at will here is created for a cause that his employer cannot terminate him or discriminate against him on the basis of his physical handicap, and it provides to him an individual remedy, a remedy that he, if he is discriminated against by his particular employer, can proceed to the Fair Employment Practices Commission and obtain relief. He may obtain back pay here amounting to as high as $15,000, and he may also obtain other relief to eliminate the continuing effects of the discriminatory --

QUESTION: Counsel, did the Illinois court not determine, however, that where the prehearing conference is not granted in a timely fashion, or conducted in a timely fashion, that in fact he had no right? Isn't that the effect, if you will, of the Illinois court state determination, which makes your argument under procedural due process more difficult? It maybe saves your argument on equal protection, but I am not sure that under those circumstances you have a due process, procedural due process argument left.

MR. PALM: Well, here he already had obtained access to the procedures of the Commission by filing the timely charge that set forth sufficient allegations, and then under the statutory structure set forth in the Fair Employment Practices Act, it is clear that he had an expectancy at that point that he would not be deprived of his opportunity to recover from the company except upon a showing of cause.

QUESTION: What if the Supreme Court of Illinois had held that the entire Illinois FEPC violated the Illinois constitution?

MR. PALM: We don't contend that Mr. Logan had a right to force the authorities in Illinois to adopt the Fair Employment Practices Act. Nor do we contend that they cannot repeal that Act. But we say that when there is a termination of an individual's rights, Mr. Logan's rights, and not by repeal that affects the whole general public or a general class of the public, that he is entitled to the procedural requirements of due process, and that the decision, the consequence that the Illinois Supreme Court interpreted the failure to hold the timely factfinding conference is a procedure, because it is a decision that your rights will be terminated without a chance to be heard, and without any consideration whatsoever about whether you have been discriminated against or whether you haven't, and whether you should win or the company should win.

QUESTION: Well, Mr. Palm, what is it he was denied a factfinding hearing in respect of? The right to have a statutory hearing within 120 days? Or are you saying, no, it is more than that, it is the right to pursue the basic underlying claim? Which is it?

MR. PALM: It is the second one.

QUESTION: The second one.

MR. PALM: I mean, he also lost the first by definition, but our complaint is that the result of losing the factfinding conference as determined by the Illinois Supreme Court is --

QUESTION: That is procedural due process.

MR. PALM: That's correct.

QUESTION: He loses his job for what he claims was a bad reason.

MR. PALM: That's correct, and he loses his chance to recover it.

QUESTION: It's like you say, it is the same thing as saying you can't be fired except for cause.

MR. PALM: That's correct.

QUESTION: And he is saying he couldn't be fired for X cause.

MR. PALM: Well, the state of Illinois --

QUESTION: Says he can't.

MR. PALM: That's right. They say that he can't be fired if it amounts to discrimination because of physical handicap.

QUESTION: Yes.

MR. PALM: And that right, substantive entitlement with respect to his employment created by the Fair Employment Practices Act is necessarily protected, as is any other property interest, only by the state's coercive power of enforcement, which is through the cause of action, which is given to him to proceed to the Fair Employment Practices Commission, to file a charge if he --

QUESTION: I take it your argument would be the same if they didn't provide the hearing at all.

MR. PALM: Oh, yes. Having created the for cause entitlement in the first instance.

QUESTION: Yes, and this business of negligently missetting the date just nails home you argument.

MR. PALM: Yes, it can be --

QUESTION: But your basis claim is that once they created the expectation, they had to have a hearing to --

MR. PALM: Well, some kind of hearing. We don't --

QUESTION: Some kind, yes.

MR. PALM: The failure to have any kind of a hearing is for sure in violation, and we say at the very bottom the failure to have any kind of decision with respect to whether he should or should not prevail --

QUESTION: I gather, Mr. Palm, this is your argument limited to the due process claim.

MR. PALM: That's right.

QUESTION: And you also have an equal protection claim.

MR. PALM: That's right.

QUESTION: And that you didn't get a hearing, but a lot of other people get hearings.

MR. PALM: That's right. The equal protection claim proceeds on the analysis that there are categories made between those who have a timely factfinding conference convened by the Commission and those who do not, and that it is --

QUESTION: And is there special emphasis in the context of this case that the omission is the Commission's, and no one else? The omission here, as I understand it, was a mistake or something, was it not, on the part of whoever was handling the case for the Commission?

MR. PALM: That's correct, the investigator. The statute says that the Commission shall hold a factfinding conference -- this is -- I am not sure I have exactly the words, but this is the context -- shall hold a factfinding conference within 120 days. It says the Commission shall hold. The only obligation put upon Mr. Logan, the Complainant, in that section of the Act is that he shall attend the factfinding conference --

QUESTION: I want to be clear about this. I gather your position is on the equal protection that they do for so many within the 120 days, and they didn't here, and therefore denial of equal protection to him.

MR. PALM: That's right. That's right. In fact, the Illinois Supreme Court opinion, even though we disagree with it in great part, suggests that everyone should have a factfinding conference within 120 days. The problem is that with respect to due process, they have reached an unfair and, we think, wholly irrational and arbitrary result should that occurrence not take place.

QUESTION: Do you claim that the -- on the equal protection issue, do you claim that the deprivation of the hearing was intentional? I thought everybody just thought it might be negligence.

MR. PALM: I'm sorry. Do we claim it is intentional, that the negligence --

QUESTION: No, that depriving -- the deprivation of the hearing was intentional, or do you agree it was only negligence?

MR. PALM: Well, the record doesn't disclose, but everyone has argued the case, and based upon the information we have --

QUESTION: Which is, somebody just misread --

MR. PALM: Miscalculated the 120 days, either by misreading a calendar or miscalculating the days. We have no evidence to show an intentional, malicious, or any other kind of motivation. There is a problem here, because the action was -- the company initiated this particular action as an original action in the Illinois Supreme Court, which has much more limited evidentiary procedures than normal, but no one has put into the record the reason, but we have no reason to believe it wasn't just simple negligence.

QUESTION: Mr. Palm --

QUESTION: May I ask, Mr. Palm, would he have a claim, perhaps in the Illinois Court of Claims, against either the Commission or the investigator?

MR. PALM: Well, my answer to that is no, it is not at all clear. We don't think that this Court ought to --

QUESTION: If he did, I take it he couldn't get reinstatement anyway.

MR. PALM: That is right.

QUESTION: He could get only damages, couldn't he?

MR. PALM: That's correct. He couldn't get reinstatement, and --

QUESTION: And he did seek reinstatement, I gather, did he?

MR. PALM: That's correct.

With respect to the due process entitlement, I would like to emphasize particular provisions of the Fair Employment Practices Act which show that his entitlement here to obtain relief against his employer, if his employer discriminated against him, is protected except for a showing of cause.

There are significant indicators of the cause requirement. The first is, the Section 851 of the Act, the very first section, sets forth this public policy purposes, one, to protect individual employees covered by the Act from employment discrimination because of physical handicap, and two, and this is important as well, to protect all employers from unfounded claims of employment discrimination.

Second, another indicator is that the Fair Employment Practice Act sets forth a substantive definition to be used in determining cause. It defines in its terms of the statute and as interpreted by the Courts of Illinois what is an unfair employment practice.

And third, this standard of what is an unfair employment practice is also to be measured by an evidentiary test, and two different tests at two different times in the proceeding. First, during the investigative stage, the test is substantial evidence, whether or not there is substantial evidence to establish that an unfair employment practice occurred. This level of evidence, the amount is not particularly significant, but the fact that some level of evidence is used to control the discretion of the Commission in deciding who receives the benefits and who does not, indicates that they are controlled for cause.

The other standard is the preponderance of the evidence standard, which is to be applied by the Commission after they have found substantial evidence, the complaint is issued, discovery has been conducted, and there is a full public hearing.

Then the Commission is charged by the statute to decide whether there is evidence by a preponderance of the evidence to establish that the unfair employment practice occurred.

The fourth indicator here is that there is review and then indeed judicial review of the determination of the Commission. First, the investigator's decision about whether there is or is not substantial evidence is reviewable de novo by the Commission. My client or any complainant, if the investigator rules no substantial evidence to support the charge, can submit new evidence not previously submitted to the investigator, and can submit arguments that were already submitted or new arguments as well.

Should the Commission then again decide that there is no substantial evidence, then the review is available to the Circuit Court of Cook County, through the Administrative -- in our case Cook County -- through the Administrative Review Act, and then if again that court should affirm, there is further review to the Illinois Appellate Court as a matter of right, and then, of course, discretionary review by a petition for leave to appeal to the Illinois Supreme Court.

All these reviews and judicial reviews indicate that the for cause requirement set forth in the statute, which must be established by some quantum of evidence, is then further controlled by the appellate courts to make sure that there is indeed a for cause determination, and not an at will decision.

QUESTION: Mr. Palm --

MR. PALM: Yes.

QUESTION: -- if we were to agree with you that you should have been given a hearing, what would be the subject of the hearing? What would the inquiry be?

MR. PALM: What would the inquiry of the hearing be?

QUESTION: Yes.

MR. PALM: Well, the inquiry of the hearing and the decision must be as to the merits of the case, whether or not an unfair employment practice occurred. Now, as a part of that, there certainly --

QUESTION: So this would be as if you got a timely, within the 120-day hearing.

MR. PALM: That's correct.

QUESTION: All you are saying is, they can't deny giving you the same thing even if it is later than 120 days.

MR. PALM: That's correct.

QUESTION: What if the original papers which you have filed or sought to file had never been delivered to the Commission, and the time, the outside time limit passed? Where would the responsibility lie for the failure of delivery? Let's assume that you had used the United States --

MR. PALM: First of all, this is not -- there is no statute of limitations problem, sir, as you are aware. We filed on time. And he already has access. He is not seeking access, which we think is a distinction.

Conceptually, I have a bit of difficulty with the statute of limitations problem, but I think either way it works out, it doesn't fall within the heart of our case, and our case can be decided without regard to that.

First, to answer directly your question, if one looks at the limitations provision as a substantive, or, I am sorry, as a procedural requirement, then it would have to be examined by the procedural requirements of due process. Here, since the burden was on him to make sure that the papers arrived at the Commission on time, that, in my view, would be adequate under due process.

QUESTION: He would be out then.

MR. PALM: He would be out, but it was his responsibility, and that is the reason that he should bear the blame, because it was his responsibility to get those papers to the Commission on time. Here, he had no responsibility to convene the factfinding conference on time. That was the investigator's responsibility.

QUESTION: I take it that the Commission itself actually thought the time limits were just discretionary.

MR. PALM: That's correct. The procedural posture of this case is that the investigator and her supervisor at the Commission denied the company's motion to dismiss the charge on the grounds of the failure to convene the factfinding conference on time, and the Commission was prepared to go ahead, at which point the original action was brought in the Illinois Supreme Court, and there, the Attorney General, on behalf of the Commission, argued that the -- as we did, as a matter of state statutory construction, that this -- the consequence doesn't follow, and there is a whole other range of --

QUESTION: So it might have been reasonable for the claimant to think that the 180 days wasn't binding either.

MR. PALM: No, no, the 180 days says he shall file the charge within --

QUESTION: Well, I know, but -- yes, but what is the hearing date?

MR. PALM: You mean the factfinding?

QUESTION: A hundred and twenty.

QUESTION: A hundred and twenty, so he wouldn't --he might think that the hearing was set beyond 125 days wasn't crucial at all.

MR. PALM: That's correct, and the notice that was sent him didn't indicate --

QUESTION: Any defect in anything.

MR. PALM: No. It said, you have to appear at the given day. It didn't say, check your calendar and see if this was in the 120 days.

QUESTION: I know, but even if he knew what the statute said, he wouldn't necessarily conclude that it was crucial.

MR. PALM: That's right. He wouldn't know from that what the consequences would be of a failure to have it on time.

And on the statute itself -- I'm sorry, on the notice itself, it did convey the requirement that he appear at that date or his charge might be dismissed, which he did, and he was prepared to proceed.

The other aspect of the problem I have with the statute of limitations, to complete my answer here, is that it also can be seen really as a precondition to -- as access has been seen by this Court in other circumstances, that there is a condition to the second path of the entitlement here, which is the use of the coercive powers of the state, and that is that you initiate your action on time, that you pay the filing fee, that you get it there.

And as I say, we don't -- either one of these analyses doesn't affect us, because our charge was filed on time, and the responsibility was directly that of the Commission and not of out client to make sure the conference was held on time.

QUESTION: Counsel, if in fact your client has a cause of action against the state, for example, for negligence because of what happened, do you have a problem then under the Parrott case and the ensuing case that followed Parrott in holding that a post-deprivation remedy, in effect, will suffice?

MR. PALM: In our opinion, Parrott just doesn't apply to this case. This is a case involving procedures, and not the -- like negligent driving or something of this sort, adjudicatory procedures, which just should not be put in the same category as the negligent handling of a hobby kit or the negligent driving of an automobile.

Indeed, in the Bonner opinion, Bonner v. Coughlin, written by then Judge Stevens, the analysis of which was adopted in great part in Parrott, it was made clear, absolutely clear that this analysis was not to apply to procedures, because they are at the very heart of the due process requirement.

QUESTION: But what you want, what was sought in this case was reinstatement.

MR. PALM: That's right. In any event, it wouldn't be adequate remedy.

QUESTION: And you are not going to get that remedy against a state officer.

MR. PALM: That's correct. That's correct, but I thought the question was whether we would get to that --

QUESTION: Yes, exactly.

MR. PALM: I'm sorry.

QUESTION: Well, if you win your case here, what relief do you say you are entitled?

MR. PALM: Well, this Court should reverse the writ of prohibition that was entered by the Illinois Supreme Court, and we should then go back to the Commission, and the investigation should be concluded, and the Commission should -- the investigator should first decide whether there is substantial evidence that my client was discriminated against by Zimmerman Brush Company --

QUESTION: All of this, and you want the 120-day hearing now?

MR. PALM: No, we don't -- we have lost that: There is no way we can have that back within --

QUESTION: Well, you want a hearing, which would be the one you would have had but for the boner of the Commission.

MR. PALM: That's true. I'm sorry.

QUESTION: Wouldn't you? That's the kind of hearing you want.

MR. PALM: That is exactly right.

QUESTION: What you are really arguing for, I take it, is an equitable concept that that should be done that should have been done.

MR. PALM: That is correct.

QUESTION: And if you win in that hearing, the result is reinstatement.

MR. PALM: No, no.

QUESTION: What is it?

MR. PALM: The result -- this would be the substantial evidence.

QUESTION: I know, but what if you win?

MR. PALM: Overall --

QUESTION: Yes.

MR. PALM: -- and we win by a preponderance of the evidence?

QUESTION: Yes.

MR. PALM: Mr. Logan will get reinstatement to his job.

QUESTION: Yes.

MR. PALM: And -- as well as the other remedies.

QUESTION: All you really want is just to go ahead.

MR. PALM: That is all we want. All Mr. Logan has wanted from the beginning, from the day he filed his charge, five days after he believes he was discriminated against, is a chance to prove that. And if he was discriminated against, then he is entitled to the remedies, reinstatement and the other remedies that are provided, and if he is not, then he loses, and then he has the regular appellate -- he does have the appellate remedies provided in Illinois.

QUESTION: What is the time lapse here now since the day when you should have had your hearing as you claim, and the employer could have come in and defended? How much time has elapsed?

MR. PALM: The time --

QUESTION: About 18 months.

MR. PALM: Eighteen months?

QUESTION: Counsel, is there anything in the Illinois procedure that would provide for mediation at an intermediate stage of the administrative proceeding?

MR. PALM: Throughout the investigative stage, emphasis is placed upon settlement, and one of the purposes of the factfinding conference is to discuss settlement and the possibility of reaching an accommodation without adjudication. That is done off the record. Then there is a separate opportunity provided for conciliation before the complaint issues, and if that fails, between the parties, and both parties -- well, and the complainant particularly has some obligations to be reasonable in the settlement demands, then they issue the complaint, and the parties go about discovery and proceed to the hearing.

QUESTION: What if this time lag of 18 months, all the fault of the state, not of either of the parties, has impaired the posture of the employer in terms of asserting its position, defending against the claims?

MR. PALM: That is a problem inherent with any case that is on appeal and reversal is made and it is sent back to follow the right procedures, and I think it is a part of the cost that one has to bear within the system.

QUESTION: And the employer here pursued the writ of prohibition --

MR. PALM: That's correct.

QUESTION: -- after losing out before the Commission and the investigator.

MR. PALM: That's right. There would have been a hearing on the 125th day, and there has never been a claim that the five-day period in any way affected their ability to come forward with evidence or in any way to be adequately prepared for the hearing.

QUESTION: Well, in effect, what you are saying is that if the employer's posture has been prejudiced, the employer bears a large responsibility for that himself, by the way he -- in the litigation.

MR. PALM: That's right. That's right. He caused the prejudice by initiating the action in the Illinois Supreme Court, since there was none at the end of the 125th day.

Thank you.

CHIEF JUSTICE BURGER: Mr. Canel?

ORAL ARGUMENT OF JAY A. CANEL, ESQ., ON BEHALF OF THE APPELLEES

MR. CANEL: Mr. Chief Justice, and may it please the Court, I have never seen Laverne Logan, but I presume that on the day he walked into Zimmerman Brush Company and asked for a job, they recognized that he was a handicapped person, and knowing of that fact, they nevertheless hired him as a probationary employee. They gave him his first job in the shipping room, and when they felt he was unable to handle that work, they gave him a second job on a machine where he could sit down, but when they didn't feel he could do that either, they discharged him before the end of the probationary period so that he would not be under the union contract.

Logan thought Zimmerman had discriminated against him, but if this alleged discrimination had taken place before 1975 in the state of Illinois, Logan would have no rights at all to sue Zimmerman for anything.

In 1975, the Illinois Legislature enacted legislation prohibiting employers from discriminating against persons with physical handicaps. That statute did not give Logan an entitlement to sue his private employer under Illinois state law. What it gave him was the right to complain to the State Fair Employment Practices Commission, and to tell that Commission that he thought that his employer had discriminated against him because of his handicap.

Once Logan made that complaint to the State Fair Employment Practices Commission, the issue was left up to the Commission, and according to Illinois state statutes, that Commission was required to do several things.

First, it was required to hold a conference within 120 days, and that conference serves several purposes. One of the major purposes of that conference was that it was for possible conciliation and settlement of Logan's claim. Another reason for the conference was to take some evidence.

The statute also provided that there was a 180-day period of time within which the Commission had to make a decision whether or not a claim against any employer could go forward. Only after the Fair Employment Commission did both, and ruled in Logan's favor, did Logan ever have a right to pursue any claim for reinstatement or back pay against his employer.

Now, through no fault of Logan's, and I add, through no fault of Zimmerman Brush Company, Logan's case never got past Step One. He never had the mandatory 120-day conference.

Previous Illinois Supreme Court cases had ruled twice as a matter of state law that the 180-day period of time within which the Fair Employment Practices Commission was required to decide whether or not there was substantial cause for a discrimination charge to go ahead was mandatory, and in the second of the two cases, a consolidated case, Board of Governors and Royal Crown Corporation versus the Commission, one of those cases found that a handicapped person could not go ahead on his claim because the Commission had not acted within the 180 days.

QUESTION: But do I understand, Mr. Canel, that the conference would have been held on the 125th day but for Zimmerman seeking a writ of prohibition in the Supreme Court?

MR. CANEL: The conference would have been held. That is correct, Justice Brennan.

QUESTION: Well, then, I suppose the prospect -- at least there was a prospect, was there not, that the Commission would have completed its work within the 180 days but for the intervention of the prohibition proceeding.

MR. CANEL: Yes, Justice Brennan, but the fact is, and I was not a party to those proceedings at that time, but the fact is, Zimmerman was right as a matter of state law, and I think for the Court to say, well, it is Zimmerman's fault, they went ahead and they filed a petition for writ of prohibition, and so it shouldn't make any difference to Zimmerman if they were wrong in getting that writ of prohibition.

The fact is, they were right in getting the writ of prohibition. As a matter of state law, they were correct. The state says, yes, the language in the statute for the 120 days and the 180 day provisions is identical, and you were right.

QUESTION: But that doesn't answer the Federal constitutional questions that are raised.

MR. CANEL: No, sir, it does not. It does not.

QUESTION: Has the statute been changed since this all took place?

MR. CANEL: The statute has been changed. Now the 120-day -- well, the whole law is put into the Human Rights Act, and the 120-day provision is made discretionary. The 180-day period is still mandatory.

The Zimmerman -- well, as I said, in the Zimmerman case, when the Court finally got to it, it had construed -- the Illinois Supreme Court was construing language relating to the 120-day hearing which was exactly the same language that they had construed twice before with reference to the mandatory provision in the 180-day hearing, and it is interesting to note --

QUESTION: So it is the thrust of this argument that they should have known that the 120-day period was jurisdictional because of the --

MR. CANEL: That is what the Supreme Court said. That is what the Supreme Court of Illinois said.

QUESTION: Of course, but the --

MR. CANEL: They said, we use the same language in the 120 -- in the 180-day as in the 120-day. We have said twice that that was jurisdictional, and they should know that the 120-day period is also jurisdictional.

QUESTION: Of course, your client did know it, but the hearing examiner didn't.

MR. CANEL: Yes, that's correct.

QUESTION: That is what made a case in your Supreme Court.

MR. CANEL: Well --

QUESTION: Because the Commission and your client disagreed on that.

MR. CANEL: But that whole --

QUESTION: Isn't that right?

MR. CANEL: That is correct, Justice White. That is correct. But there is also --

QUESTION: Well, is your answer to that in part that they can't confer jurisdiction by agreement?

MR. CANEL: I am sorry, would you --

QUESTION: They couldn't confer jurisdiction where the time had already lapsed. Is that your claim?

MR. CANEL: They could have waived jurisdiction.

QUESTION: They could have waived.

MR. CANEL: Well, I said that, but I may be wrong. I don't know whether or not they could have waived jurisdiction.

QUESTION: Well, even if they couldn't, the question is, should you have known it in advance.

MR. CANEL: Well, I assume that Zimmerman's lawyers at that time knew it, but that doesn't really --

QUESTION: Well, the Commission didn't know.

MR. CANEL: Well, but the Illinois Supreme Court said, Justice White, that the Commission should have known.

QUESTION: Well, they ruled --

MR. CANEL: The Illinois Supreme Court said, we told you twice in identical language that the 180-day provision is mandatory and you should have, by reason of those two cases, known that when we use the same language, when the legislature used the same language in the 120-day provision, that that was also mandatory, and this all gets down to a where do you draw the line argument.

The Illinois Supreme Court and the Illinois statute both express substantial concerns for the rights of the employer. The provision which Mr. Palm read to you from the Illinois Act says it is also the public policy of Illinois to protect employers and labor organizations against unfounded charges of discrimination, and there is an economic point here which I think was not properly made in our brief, and which I should make to the Court.

I don't think that Logan had much of a case on the facts, because he was --

QUESTION: Well, we are not concerned with that now, are we?

MR. CANEL: I understand that, but it is important. It is important from this point of view, and it is important in judging the reasonableness of this 120-day rule. The fact is, no matter how bad a case is, the case becomes worth more and more money as to the defendant employer the longer it languishes before some commission, because the longer it languishes before some commission, the more back pay is going to build up, and the more expensive the reinstatement and back pay award will be, and so --

QUESTION: Am I correct, sir, that if it had not been for the writ of prohibition, they would have pursued it?

MR. CANEL: I presume that that is correct.

QUESTION: Well, why are you arguing that he brought all this on? He didn't.

MR. CANEL: But it was the --

QUESTION: He didn't, did he?

MR. CANEL: It was the --

QUESTION: You did. Am I right?

MR. CANEL: That's right.

QUESTION: You are the one that prolonged it.

MR. CANEL: And it was our right to do that under the Illinois law, and it was our right to protect ourselves --

QUESTION: Well, did that give you the right to argue that the other guy was responsible for it?

MR. CANEL: Well, wait a minute. Justice Marshal, when we say the other guy was responsible for it, Zimmerman was not responsible for the delay. It had a right to a hearing within that time.

QUESTION: Well, who filed the court action?

MR. CANEL: The writ of prohibition was filed by Zimmerman to enforce a right.

QUESTION: Well, that is what I am talking about.

MR. CANEL: To enforce a right, the Illinois Supreme Court said it had.

QUESTION: And by doing that you delayed the whole thing. If you had not done that, it might have been settled.

MR. CANEL: That is possible, but I don't --

QUESTION: And certainly we wouldn't be bothering with it.

MR. CANEL: Well, it was through no fault of mine that the Court was bothered with it.

QUESTION: No fault -- well, who filed it?

QUESTION: If an award had been entered against Zimmerman by the Commission, Zimmerman could have appealed through the Illinois court system on the same basis, could he not?

MR. CANEL: But he would waive a right.

QUESTION: Right, but I mean, the delay might have been just --

MR. CANEL: That is correct, Justice Rehnquist. He could have said, and I think probably, based on the first brief I filed in this case, and based on my client's change of lawyers and change of attitude, he probably feels it would have been the better thing for him to do economically instead of becoming a cause celebre before the state and now the U. S. Supreme Court.

But at that point in time, he listened to his labor lawyer who was representing him, and the labor lawyer said, you are entitled to have the hearing, and within 120 days. That legislation was enacted for your benefit. It is not your fault that that hearing didn't take place in that time, and you might as well take advantage of it, and if anybody is at fault for failing to set the hearing at that time, it is not Zimmerman and it is not Logan. It is the state official who didn't follow the law of the state of Illinois.

QUESTION: On the due process issue, supposing the statute said, a similar procedure, but just said one out of every ten complaints shall be dismissed without any hearing. Just arbitrarily, at random, we will dismiss one out of every five or ten. Would that violate any due process right?

MR. CANEL: I think so.

QUESTION: Why, because it is an arbitrary dismissal?

MR. CANEL: It is an arbitrary -- it is an arbitrary --

QUESTION: Well, why isn't this arbitrary from the point of view of the litigants?

MR. CANEL: Well, if you look to the history of these types of remedial statutes, all you have to do is look at the history of the Federal Government, or the EEOC, which has thousands of these cases sitting around for years at a time, never getting tried, never getting disposed of, and when you look at it in terms of the Illinois law, and my former argument, which is, the more these cases hang around, the more it costs the employer, even in a bad case, if he loses one out of ten bad cases --

QUESTION: Well, I suppose they could always file a motion to expedite, go in in 30 days and say, we don't have to have the hearing for 120 but we would like to move it along.

MR. CANEL: Well, but that -- but you are not guaranteed that the motion is going to be expedited, that the hearing is going to be expedited. You have no control. Suppose the hearing officer comes back --

QUESTION: But your client was conscious of the 120-day limit, and knowing that, because they filed the prohibition litigation promptly, knowing that, they could have insisted on the hearing within 120 days. I think we have to presume it would have been granted.

MR. CANEL: I don't think that you can presume that it would have been granted. It might have been granted. You don't know what the state administrator is going to do when the state administrator gets a request --

QUESTION: But here, doesn't the record show that the error was a miscalculation, and that the administrator understood the 120-day obligation but didn't realize it was jurisdictional?

MR. CANEL: The record shows no such thing.

QUESTION: Oh, I see.

MR. CANEL: The record shows only that the hearing examiner set the initial hearing within 125 days. People have argued that she was negligent when she did that. I don't think that there is any evidence in the record that she did it intentionally. It was done.

In any event, I think that there -- that it would be -- certainly when you go back to the Illinois state law, that state law is that at least at the time Logan's case was pending, the 120-day hearing was required by state law. For this Court to say that that requirement is an unconstitutional deprivation of Logan's rights in this case, it would have to come to the conclusion that that mandate from the Illinois Legislature as construed by the Illinois Supreme Court is wholly arbitrary or irrational.

And I submit to the Court, based on my economic argument of the cases becoming worth more and more, costing employers more and more the longer that they hang around in administrative tribunals, and the fact that the Illinois Legislature mandated that they hold a settlement conference, that it would be, I think, improper for this Court to say that when you have the legislature and the Supreme Court giving clear directions to move these cases ahead, it would certainly be wrong to say that that is irrational or arbitrary.

QUESTION: What about this hypothetical case? Supposing we agree with you now, and we sent it hack and affirmed and all the rest of it, and then next week another case similar to this comes up, and on the 119th day a hearing is scheduled, and the parties show up, and the hearing examiner says, well, I am sorry, I decided not to hold a hearing, go home, and he just refused to do it, and everybody knew about it, and no hearing examiner would hear them.

Would that still be due process in your view?

And if not -- Well, how is that case different from this?

MR. CANEL: Well, the law -- you are looking at two things, as to whether or not there is due process. Now, first of all, this ultimate defendant in this lawsuit here, Zimmerman Brush Company, in all those other cases which involved pre-deprivation, post-deprivation hearings, the action is always against the state official, the municipal official, and not the private employer.

Even in the example, Justice Stevens, that you put, you are saying that the action of the state official in saying, I don't want to hold a hearing, it is ridiculous, I am too busy, I would rather go see the Chicago Cubs play ball today, so I am not -- I am not going to hold the hearing.

That would be an unreasonable action and a deprivation perhaps of Logan's rights, but Zimmerman --

QUESTION: It depends on what ball club you support.

(General laughter.)

MR. CANEL: In Chicago you can't support any.

(General laughter.)

QUESTION: Counsel, it is difficult for me to see how it is rational to say that some employees with legitimate claims are going to get no hearing at all, such as in this case, while other employees who may have unfounded claims may be heard. I think there is a real equal protection concern here, and as I looked at the statute, there doesn't appear to be any requirement, is there, that after this first conference is held, that the remaining procedures occur within a particular amount of time. Apparently Illinois can take as long as they want to decide the ultimate case.

So, I am not sure that this 120 days has anything to do with anything, except to arbitrarily cut someone off.

MR. CANEL: Well, I think that the statute is clear that the Commission, at least, must resolve the issue of whether there is substantial evidence to go forward within 180 days. I don't think that this is an equal protection case. I don't think that there are two classes of people who are spelled out or treated under the Illinois Fair Employment Practices Act, or now the Human Rights Act.

I think there is one class of persons, and I think the problem with Laverne Logan's case is that he is in the class of persons that ultimately must be protected. If he was deprived of any rights in this case, then he was deprived of those rights by reason of the fact that the state commission erred. If the state commission erred, first of all, that is not an error which was made by Zimmerman.

And secondly, under those circumstances, as some of the Court noted in the questions that they asked of Mr. Palm, there is a right which Logan has, and that right, it seems to me, is clear. He has a right under the Illinois Court of Claims Act to make a claim against the person who deprived Zimmerman of whatever rights he had or it had under the law, and I don't think it is proper for this Court to quantify those rights. I think suffice it to say the Illinois Supreme Court said that it had that right.

So, the person who -- or the -- well, the person who erred in this case was the Illinois Commission.

QUESTION: The state.

MR. CANEL: The state erred.

QUESTION: If the state -- if there is a denial of due process, does it make any difference where the responsibility for the error lies?

MR. CANEL: Well, certainly, because the responsibility for the error, the person responsible, the entity responsible for the error ought to bear the cross of Logan's claim. Now, all -- Logan can't get reinstated if he goes to the Court of Claims, but what Logan can get, and what any successful litigant can get in a multitude of actions and tort contract and whatever, is to get the pecuniary value of what it was that he was deprived of.

QUESTION: Then if we make your case a precedent, in Illinois, from now on, any employer facing a similar action can protect himself from back pay and reinstatement by filing a writ of prohibition.

MR. CANEL: No, that is absolutely untrue, Justice Marshal. First of all, writs of prohibition are rarely allowed in Illinois by our Supreme Court. It is by far the exception.

QUESTION: Well, you have just given me three of them in a row. Two before you and this one, that is three. That is not --

MR. CANEL: I don't know that the other two cases came up on an original writ of prohibition.

QUESTION: I thought you said that you had two cases that were clearly on point.

MR. CANEL: Yes, sir.

QUESTION: And that the lawyer on the other side should have known about them.

MR. CANEL: No, I --

QUESTION: There were two other cases.

MR. CANEL: I stay with the three cases on point. All I am saying is, I don't think that the first two came up on a writ of prohibition. They came up by way of appeal.

QUESTION: What I am saying is, you really don't want to pay the man his back money. Is that what this case is all about?

MR. CANEL: That I don't want to pay the man his back money?

QUESTION: Yes.

MR. CANEL: No, if you look at the case --

QUESTION: Yes, Zimmerman. Is that not what the case is all about?

MR. CANEL: If you look at the case that way, you know, that is one way to look at it.

QUESTION: Well, how about --

MR. CANEL: I can look at the case by saying that --

QUESTION: How about the other lawyers?

MR. CANEL: -- I want to have what rights, I --

QUESTION: How about the other lawyers for Zimmerman before you? Was that what they wanted, too?

MR. CANEL: I think that they wanted the same thing I do. They want to say that the employer has certain rights under this Act which are deserving of protection, just as Mr. Logan had rights which are deserving of protection, and if those rights were -- if my rights were violated or his rights were violated, then the person that ought to pay the expenses entailed or the value of his rights is the person who made the error in the first place.

Well, let me recap, because I think in answering my -- I want to bring up one last point before I recap, and I think I have touched on this, but in most of the cases that Mr. Logan's attorneys have cited, where persons have been deprived of due process or equal protection, and were deprived by denied hearing, all of those cases involve suits where the person depriving the plaintiff of his rights was some governmental entity.

That is not true in this case, as far as Zimmerman is concerned. If the cause of action goes against Zimmerman, it is not a governmental entity. If Logan was deprived of any rights in this case, as I said many times in this argument, the deprivation --

QUESTION: Mr. Canel, is your argument that you can never have a violation of the due process clause in a procedure that governs litigation between private parties? What about the Mullane case, where there is a suit by one litigant against others, and the statutory procedure for notice was held to be defective, and that preserved the rights against the --

MR. CANEL: Yes, I believe that that is correct.

QUESTION: Wouldn't that be true here? Assume you had, say, I don't know what it might be, there are all sorts of things that could be wrong, a corrupt judge, for example. You would say, granted, he was not necessarily corrupted by the defendant, or a totally incompetent, or insane judge. You could still reinstate the case, couldn't you, and say that is a violation of due process?

MR. CANEL: Yes, but then the actor in that case would be the corrupt or insane judge.

QUESTION: But you would still preserve the remedy against the other litigant in a civil case, wouldn't you, if the judgment were tainted by deprivation of due process?

MR. CANEL: Under the facts of the case, the facts of the hypothetical case as you stated, I --

QUESTION: Well, similarly here. If the statutory procedure, as applied in this particular case, is unconstitutional, why shouldn't the remedy survive against the private party?

MR. CANEL: You have answered -- Justice Stevens, you have answered your question. If it is unconstitutional, it does survive against the party.

QUESTION: Well, all I am suggesting is, you have argued it is not unconstitutional unless it was a suit against the judge himself, or the state itself, as I understood you.

MR. CANEL: Because the action in this case was by -- the fault in this case was by the state of Illinois --

QUESTION: The procedural shortcoming was attributable to the state.

MR. CANEL: Under the facts of this case, two parties were deprived of rights, and to look at it --

QUESTION: But I don't see how that is any different from my example of one out of ten cases getting thrown out of court arbitrarily, and it seems to me you agreed that would be unconstitutional.

MR. CANEL: But you are suggesting --

QUESTION: This is sort of like a lottery.

MR. CANEL: No, you are --

QUESTION: This fellow didn't get a hearing in time, so he is through.

MR. CANEL: But, Justice Stevens, you are suggesting a statute which says one out of ten cases must be thrown out, and I would agree that that is unconstitutional, but that is not what happened in this case.

QUESTION: Well, this is --

MR. CANEL: There is no such requirement in this case. There is a -- There is a requirement that says you shall have a hearing within 120 days, and that hearing is for the protection of everybody. The Illinois Supreme Court said, it is for the protection of the employer as well as the employee.

QUESTION: But the state of Illinois has said to this man, even though you have done everything the statute requires you to do procedurally, you can't have a hearing. Now, is that constitutional?

MR. CANEL: Well, but he can have a hearing. He can have a hearing before the Illinois Court of Claims, and he can get the monetary --

QUESTION: But not against you.

MR. CANEL: That's right, but I didn't do anything to deprive the man of his constitutional rights. There is nothing that Zimmerman Brush Company did which deprived Logan of a constitutional right. If it acted inequitably, as Judge Marshal thinks it did by taking it --

QUESTION: No, but the question is whether he lost a claim against Zimmerman because he pursued it pursuant to an unconstitutional statute. If the statute is unconstitutional as applied to this case, it cannot bar his claim.

MR. CANEL: All right. I would agree with that. But I dispute the fact that the statute is unconstitutional on its facts. To say that it is unconstitutional on its -- I'm sorry, on its face. To say that it is unconstitutional on its face, then this Court would have to say --

QUESTION: I didn't say on its face. On the facts as applied in this case.

MR. CANEL: Well, it is only -- it would only be unconstitutional on its facts as applied in this case if Logan was deprived of any remedy whatsoever, and what this Court has previously said in Parrott v. Taylor is that there is another way to give someone a remedy --

QUESTION: Well, where does he get the remedy of getting his job back?

MR. CANEL: He doesn't. He can't.

QUESTION: Well, he doesn't get that remedy.

MR. CANEL: But he can get the monetary --

QUESTION: Well, why do you -- Does he get back pay?

MR. CANEL: Yes, he gets the --

QUESTION: How does he get back pay?

MR. CANEL: He gets the economic value of not having a job --

QUESTION: How does he get back pay?

MR. CANEL: -- and the economic value of back pay from the people who were at fault.

QUESTION: That is if the Court of Claims decides to give it to him.

MR. CANEL: And that depends on the merits of his case, which I think is not truly before this Court.

QUESTION: Mr. Canel, suppose hypothetically that the hearing examiner or whatever person was charged with holding this 120-day proceeding bad at the 119th day proceeded without any notice to Zimmerman Brush, and decided that he was to be reinstated, Logan was to be reinstated and back pay allowed.

Would you think that was a denial of due process?

MR. CANEL: I am sorry, if --

QUESTION: On the 119th day the hearing officer, whoever this person was --

MR. CANEL: Yes.

QUESTION: -- called Logan in, but didn't give any notice to Zimmerman Brush

MR. CANEL: Oh, I'm sorry. Absolutely, that --

QUESTION: -- and said, all right, after hearing his story, you are reinstated, and you will get $9,321 back pay. That is denial of due process?

MR. CANEL: Denial of due process to Zimmerman.

QUESTION: Now, that would be no fault --

MR. CANEL: He was entitled to be at the hearing.

QUESTION: There would be no fault On the part of Logan if that happened.

MR. CANEL: That's right.

QUESTION: He would be an innocent beneficiary.

MR. CANEL: Yes.

QUESTION: But it would be denial of due process.

MR. CANEL: Absolutely.

QUESTION: Which could be corrected by a judicial proceeding here or elsewhere.

MR. CANEL: That is absolutely correct, and if Logan was thereby deprived of any future rights that he might have against Zimmerman, then I would say that the action would have to be against the state official who did the wrong.

I want to conclude by saying this. I think that what the Illinois Legislature did in this case was not arbitrary and was not irrational. They had in mind a system which moved these cases along, and when you are fighting these cases in court and in the trenches, on either side, I think it is important that the state have an interest in moving these cases along. It is important to the employee, because if he is right, he ought to get his job back. It is important to the employer because if he is right it is going to minimize any ultimate award which is rendered in the case.

The Illinois Supreme Court had previously said on two occasions that the 180-day period was mandated under the statute. When they acted in the Zimmerman case, they said, we are only construing the law, the statute, the same way we did before, and I believe therefore that, first of all, under the Illinois procedure, as enacted by the state of Illinois, the state had no obligation to grant Logan this right in the first place.

Having granted him this right, they must grant it to him on a reasonable basis, but I say that as a first step in their statutory proceeding, the procedures that the state of Illinois chose to follow were far from being irrational or arbitrary. Those procedures had a basis in fact. Those procedures should have been followed.

And as I have said in this argument, Mr. Logan has a right under Parrott v. Taylor to get at least the economic equivalent of what he was deprived of against the state of Illinois. If he doesn't have it through the Court of Claims, certainly he has it under a 1983 action.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Palm? You have two minutes remaining.

ORAL ARGUMENT OF GARY H. PALM, ESQ., ON BEHALF OF THE APPELLANT - REBUTTAL

MR. PALM: Just a few brief points. First of all, with respect to the use of the writs of prohibition by the employers, I am not sure with respect to the Springfield-Sangamon case, but clearly with respect to Board of Governors versus the Illinois Fair Employment Practices Commission, that, too, was an original action seeking a writ of prohibition.

QUESTION: But you don't question the right of Zimmerman to take those steps, do you?

MR. PALM: Well, we did question in the Illinois Supreme Court whether there shouldn't be an exhaustion requirement for them through the Administrative Review Act, and then they could still preserve the error and assert it on appeal eventually.

The other comment, Justice O'Connor is correct. There is no requirement that the Commission ultimately decide at any particular time after a finding of substantial evidence, it can take any number of years.

And, Chief Justice Burger, we of course do believe that it is a mistake and it is irrational to place the burden, the blame where the responsibility doesn't exist, and here, what highlights the irrationality is that Mr. Logan is worse off than if he had lost on the merits.

If he had lost on the merits, then he could have taken an appeal, and at least had the protection of the reviewing courts in Illinois, whether indeed he should have lost or not. As it is, he lost without any decision whatsoever, and no opportunity for review, and that, we contend, violates due process, and he should be given that opportunity.

Thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:05 o'clock p.m., the case in the above-entitled matter was submitted.)