Shore Wood Realty Inc v Lynch Brief Amicus Curiae

    (I fee ^  i3L/o

I n  th e

Ihtpron* (tart nf lUimris

S hore-W ood R ealty , I n c .,

Plaintiff-Respondent,

G ale L y n c h , 

Defendant-Petitioner.

Appeal from the Circuit 
Court of Cook County 

Municipal Division

Honorable 
Benjamin J. Kanter 

Presiding

ON P E T IT IO N  EOK LEAVE TO A PPE A L TO T H E  

STJPBEME COURT OE IL LIN O IS

BRIEF AMICUS CURIAE AND MOTION FOR LEAVE 
TO PARTICIPATE IN ORAL ARGUMENT OF THE 

NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC. AND THE NATIONAL OFFICE FOR 

THE RIGHTS OF THE INDIGENT

J ack  Gbeenberg 
L eroy D. Clark  
Charles H. J ones, Jr.

10 Columbus Circle
New York, New York 10019 

Attorneys for NAACP Legal 
Defense and Educational 
Fund, Inc., and the National 
Offi.ce for the Rights of the 
Indigent



TABLE OF CONTENTS

Brief A micus Curiae page

Nature of the Case ....................................................  1

Points and Authorities ..............................................  1

Statement of Facts ....................................................  1

A rgument ............................................................................... . 2

Introduction ................................................................  2

I. The Illinois Appeal Bond Statute, 111. Eev. 
Stat. 1959, Ch. 57, Sec. 20, Violates the Four­
teenth Amendment to the Constitution of the 
United States, on its Face and as Applied to
Indigent Tenants ..................................................  2

Conclusion ................................................. ............................. 7

Motion for L eave to P articipate in Oral A rgument 9



Nature of the Case

This appeal is from a judgment rendered against the 
defendant, Gayle Lynch, on July 24, 1967, in a summary 
eviction.

Defendant’s theory of the case is that 111. Rev. Stat. 59 
Ch. 57 Sec. 20 requiring a bond in order to file an appeal 
is unconstitutional on its face and as applied to an indigent 
tenant defendant.

Points and Authorities

Illinois Revised Statutes 1959, Chapter 57, Section 20 
requiring the posting of a security bond on appeal violates 
the Fourteenth Amendment to the Constitution of the 
United States on its face and as applied to indigent tenants.

Griffin v. Illinois, 351 U.S. 12 (1956);
Harper v. Virginia State Board of Electors, 

383 U.S. 663 (1966);
In Re Gault, 387 U.S. 1 (1967);
Roberts v. Lavallee, 36 L.W. 3171 (October 23, 

1967) ;
Williams v. Shaffer, 385 U.S. 1037 (1967).

Statement of Facts

The amicus brief adopts the statement of facts contained 
in the Petition For Leave To Appeal From The Appellate 
Court To The Supreme Court filed by the Attorneys for 
Defendant.



2

Argument

The issue raised in this case by amicus is : the right 
of defendant and the class of indigent tenants she repre­
sents, to proceed in forma pauperis either without posting 
a security bond or alternatively to post a modest use and 
occupancy bond in defending against eviction proceedings.

I.

The Illinois Appeal Bond Statute, 111. Rev. Slat, 1959, 
Ch. 57, Sec. 20 , Violates the Fourteenth Amendment 
to the Constitution of the United States, on its Face 
and as Applied to Indigent Tenants.

Defendant recognizes that the U.8. Supreme Court in 
National Union of Marine Cooks v. Arnold, 348 TJ.S. 37 
(1954), upheld as constitutional a defendants’ bond pending 
appeal. But the facts of that case can be distinguished 
from the instant case. In National Union the evidence 
showed that the defendant had no substantial assets in 
the state of Washington but had $298,000 in United States 
bonds in his possession in the state of California. The 
defendants’ appeal was dismissed only after he refused 
to obey a court order to deliver the bonds to the Court’s 
receiver, for safe keeping pending disposition of defen­
dants’ appeal.

In the instant case the defendant has no assets with 
which to post a security bond in the amount set by the 
trial court under 111. Rev. Stat. 1959, Ch. 57, Sec. 20. 
There is no question of wanton disregard of the court 
order in the instant case. Defendant in the instant case 
is willing, in fact eager, to pay her rent into the registry 
of the court a few days prior to the date due so that the



3

landlord may be protected against the loss of rent. De: 
fendant is also willing to pay a reasonable amount to 
protect the landlord for any damage that might occur to 
his property during the litigation and to cover court costs. 
It is submitted that the bond set by the trial court is 
prohibitive and bears no reasonable relation to the risk 
posed to the plaintiff in view of defendant’s willingness 
to post a use and occupancy bond. The Illinois require­
ment, in fact, is a penalty bond which requires the posting 
of double rent, for more than is necessary to protect a 
landlord from harm.

Although it may be perfectly proper for a court to 
require some defendants to post a bond pending an ap­
peal, a money bond cannot be demanded of an indigent 
defendant. The Illinois requirement under 111. Rev. Stat. 
1959, Ch. 57, Sec. 20, permits wealthy persons to stay in 
rental housing and defend eviction proceedings fully, 
whereas poor people have no opportunity to appeal a 
decision even though there may be errors of law clearly 
manifested on the record from the trial court which were 
prejudicial to the substantial rights of the defendant.

As Justice Douglas said in Williams v. Shaffer, 385 
U.S. 1037 (1967) (dissenting from the denial of a Writ of 
Certiorari in a case challenging a Georgia statute re­
quiring the posting of a bond prior to making a defense in 
a dispossessory action) :

“ The poor are relegated to ghettos and are beset 
by substandard housing at exorbitant rents. Because 
of their lack of bargaining power, the poor are made 
to accept onerous lease terms. Summary eviction pro­
ceedings are the order of the day. Default judgments 
in eviction proceedings are obtained in machine-gun 
rapidity, since the indigent cannot afford counsel to



4

defend. Housing laws often have a built-in bias 
against the poor. Slumlords have a tight hold on the 
notion.”

In the instant case the indigent defendant was able to 
obtain volunteer counsel but the ordinary member of the 
class she represents is not so fortunate. Furthermore, 
unless defendant can fully prosecute her appeal, it cannot 
be said that she has had a full determination of the merits 
of her case.

It may be that states can constitutionally enact some 
legislation which creates a greater burden for the poor 
than for the rich. For example, it may not be imper­
missible for the states to charge fees for licenses of various 
sorts, or to require tuition of students attending state 
universities. But Griffin v. Illinois, 351 IT.S. 12, 17 (1956) 
makes it clear that justice may not be sold.

Surely no one would contend that either a State or 
the Federal Government could constitutionally pro­
vide that defendants unable to pay court costs in 
advance should be denied the right to plead not 
guilty or to defend themselves in Court. Such a law 
wTould make the Constitutional promise of a fair trial 
a worthless thing. Notice, the right to be heard, and 
the right to counsel would under such circumstances 
be meaningless promises to the poor. . . . There is no 
meaningful distinction between a rule which would 
deny the poor the right to defend themselves in a trial 
court and one which effectively denies the poor an 
adequate appellate review accorded to all who have 
money enough to pay the costs in advance. . . . There 
can be no equal justice where the kind of trial a man 
gets depends on the amount of money he has. 351 II.S. 

, at 17-19. (Emphasis added.)



5

It is true that Griffin’s prohibition on economic discrim­
ination by the state has been applied up to now chiefly 
to the criminal process. See Burns v. Ohio, 360 U.S. 252 
(1959). Smith v. Bennett, 365 U.S. 708 (1961). But the 
equal protection clause, upon which Griffin was based, 
applies as well to matters denominated “ civil” , and Harper 
v. Virginia State Board of Elections, 383 U.S. 663 (1966), 
invalidating the application of a poll tax to indigents, 
demonstrates that the exercise of important rights other 
than ones relating to the criminal process may not con­
stitutionally be conditioned on ability to pay. See Williams 
v. Shaffer (Douglas dissent). Furthermore, as pointed 
out in In Re Gault, 387 U.S. 1 (1967) certain rights are 
so fundamental and entitled to Constitutional protection 
that their observance is not determined by the fact that a 
proceeding is designated civil instead of criminal. There 
is no rigid and inflexible line between criminal and civil 
that never fluctuates despite the change in time and cir- 
custance. Our constitution is a living document which calls 
for contemporaneous construction which takes into con­
sideration changing circumstances, new knowledge and a 
greater recognition of basic human rights and needs.

In fact, the Supreme Court very recently reaffirmed the 
principle of non-discrimination against the poor in the 
legal process, in language which apparently applies to any 
civil proceedings; “ Our decisions for more than a decade 
now have made clear that differences in access to the 
instruments needed to vindicate legal rights, when based 
on the financial situation of the defendant, are repugnant 
to the Constitution.” Roberts v. Lavallee, 36 L.W. 3171, 
3172 (October 23, 1967). See also Williams v. Shaffer, 
385 U.S. 1037, 1039 (1967).

This is perfectly sensible, since the ability to pay bears 
no more rational relation to whether one has a bonafide



6

ground for an appeal from an eviction proceeding than it 
does to whether there is a bonafide ground for the appeal 
of a criminal conviction. In the former the indigent de­
fendant may be deprived of a right or interest in property 
whereas in the latter the indigent defendant may be de­
prived of his life or liberty. In either event, all are basic 
rights or interests protected by the United States Con­
stitution. Under the equal protection clause the relevant 
constitutional consideration is whether the bond require­
ment bears a rational relation to a valid legislative purpose.

Assuming that the relationship between a bond require­
ment and the protection of prevailing landlords from loss 
of rent during protracted litigation is rational, the Illinois 
statute requires too much of an indigent defendant. “ The 
breadth of legislative abridgement must be viewed in the 
light of less drastic means for achieving the same basic 
purpose.” Shelton v. Tucker, 364 U.S. 479 (1960). See also 
NAACP  v. Alabama, 377 U.S. 288 (1964); Bates v. City 
of Little Rock, 361 U.S. 516 (1960); McLaughlin v. Florida, 
379 U.S. 184 (1964). Other simple devices exist by which 
the state could safeguard both the landlord’s rent during 
a suit and the tenant’s right to fully challenge the 
eviction. The state of Illinois could permit tenants to pay 
landlords their rent during the pendency of the proceed­
ings, and condition the making of an appeal on the con­
tinued payment of rent, rather than on the posting of a 
large bond which indigents cannot raise. In cases of 
dispute over whether or not rent has been paid, tenants 
might be reluctant to continue to pay rent to the landlord 
until the issue was resolved, but the court with juris­
diction over the eviction suit could collect the rents for 
the landlord or certify payments. Given these and other 
alternatives, the Illinois statute, which is designed to pro­
tect landlord’s rents, interferes too severely with the rights 
of indigent tenants to obtain elemental justice.



CONCLUSION

For the foregoing reasons, 111. Rev. Stat. 1959, Ch. 57 
Sec. 20 should be held unconstitutional in violation of the 
Fourteenth Amendment to the United States Constitution 
on its face and as applied to an indigent tenant.

Respectfully submitted,

J ack  G reenberg 
L eroy D. Clark  
Charles H . J ones, J r .

10 Columbus Circle 
New York, New York 10019

Attorneys for NAACP Legal 
Defense and Educational 
Fund, Inc., and the National 
Office for the Rights of the 
Indigent





9

I n t h e

^ttpron? (tart of llltturis

S hoee-W ood R ealty , I n c .,

Plaintiff-Respondent,

— v . —

G ale L y n c h , 

Defendant-Petitioner.

Appeal from the Circuit 
Court of Cook County 

Municipal Division

Honorable 
Benjamin J. Kanter 

Presiding

ON P E T IT IO N  FOE LEAVE TO A PPE A L TO T H E  

SU PBE M E  COUKT OF IL L IN O IS

MOTION FOR LEAVE TO PARTICIPATE 
IN ORAL ARGUMENT

The NAACP Legal Defense and Educational Fund, Inc., 
and the National Office for the Rights of the Indigent, 
respectfully move this court for permission to participate 
in oral argument. Movants recognize that such permis­
sion is granted very infrequently; we submit, however, 
that this is an extraordinary situation.

No amicus can truly speak for all the millions of persons 
in need of legal services. But our unvarying objective has 
been to extend legal services to those in need, and we feel 
that we can help inform this court about that need and 
the ways in which it might be satisfied.



10

W herefore, m ovants resp ectfu lly  request p erm ission  to 
partic ip ate  in ora l argum ent.

B esp ectfu lly  subm itted,

J ack  G reenberg 
L eroy I). Clark  
Charles H . J ones, J r .

10 Columbus Circle 
New York, New York 10019

Attorneys for NAACP Legal 
Defense and Educational 
Fund, Inc., and the National 
Office for the Rights of the 
Indigent



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