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Strong Delivery Ministry Association v. Board of Appeals of Cook County and Mr. George Dunne

decided: October 27, 1976.

STRONG DELIVERY MINISTRY ASSOCIATION, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
BOARD OF APPEALS OF COOK COUNTY AND MR. GEORGE DUNNE, PRESIDENT OF COOK COUNTY BOARD OF COMMISSIONERS, DEFENDANTS-APPELLEES. SEARS, SUCSY & CO., A DELAWARE CORPORATION, PLAINTIFF-APPELLANT, V. INSURANCE COMPANY OF NORTH AMERICA, DEFENDANT, THIRD-PARTY PLAINTIFF-APPELLEE, V. WESTCOTT TRAINOR, ANNETTE SOLOMON, AND BEN B. STEIN, THIRD-PARTY DEFENDANTS-APPELLEES



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75-C-2768 and No. 73-C-2833 Prentice H. Marshall, Judge.

Cummings, Tone and Wood, Circuit Judges.

Author: Per Curiam

These two appeals are consolidated for the purpose of deciding whether a corporation may proceed in federal court through lay representation.

No. 76-1451

Strong Delivery Ministry Association, a not-for-profit corporation organized under the laws of the State of Illinois, has brought this action pursuant to 42 U.S.C. §§ 1981 and 1983, alleging violation of its first amendment rights to freedom of worship, speech, press and peaceable assembly. Plaintiff appears in this court, as it did below, through its president and founder, the Reverend Rachel V. Elder, who is a non-lawyer. Plaintiff suggested to the district court that its first amendment rights were infringed upon by the defendant Board of Appeals of Cook County when it refused to permit Reverend Elder to represent plaintiff in tax exemption proceedings pending before the Board and directed the Reverend Elder to obtain counsel for the representation of plaintiff.*fn1 The district court dismissed plaintiff's complaint without reaching its merits, but with leave to file an amended complaint if presented by a member of the bar of that court. After the denial of a motion to reconsider, the plaintiff has appealed.

Appearances generally in the federal courts are governed by 28 U.S.C. § 1654 (1970).*fn2 While Federal Rule of Appellate Procedure 46 and Circuit Rules of the United States Court of Appeals for the Seventh Circuit 5 and 27 pertain to the admission and appearance of attorneys before this court, reference must be made to the common law tradition and current case law to determine the application of section 1654 to the appearance of a non-lawyer in behalf of a corporation in federal court.

At common law ". . . a plea by a corporation aggregate, which is incapable of a personal appearance, must purport to be by attorney." 1 Chitty On Pleading 550 (12th Am.Ed. 1855). In Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 829-30, 6 L. Ed. 204 (1824), Chief Justice Marshall, in responding to the question of whether the record of the case should disclose that the defendant bank authorized the institution or prosecution of the suit, stated: "It is admitted that a corporation can only appear by attorney. . . . A corporation, it is true, can appear only by attorney, while a natural person may appear for himself." Id. Likewise, in Commercial & Railroad Bank of Vicksburg v. Slocomb, Richards & Co., 39 U.S. (14 Pet.) 60, 65, 10 L. Ed. 354 (1840), it was stated that . . . a corporation cannot appear but by attorney . . .," Id. It becomes clear that the principle of stare decisis is a compelling force in the case before us.

The underlying rationale for the rule was inquired into in Heiskell v. Mozie, 65 U.S. App. D.C. 255, 82 F.2d 861, 863 (1936) wherein it was explained:

The rule in these respects is neither arbitrary nor unreasonable. It arises out of the necessity, in the proper administration of justice, of having legal proceedings carried on according to the rules of law and the practice of courts and by those charged with the responsibility of legal knowledge and professional duty. . . . The rules for admission to practice law in the courts of the District of Columbia require the applicant to submit to an examination to test not only his knowledge and ability, but also his honesty and integrity, and the purpose behind the requirements is the protection of the public and the courts from the consequences of ignorance or venality.

Perhaps cutting more to the quick, it was suggested in Mortgage Commission of New York v. Great Neck Improvement Co., 162 Misc. 416, 295 N.Y.S. 107, 114 (1937):

Were it possible for corporations to prosecute or defend actions in person, through their own officers, men unfit by character and training, men whose credo is that the end justifies the means, disbarred lawyers or lawyers of other jurisdictions would soon create opportunities for themselves as officers of certain classes of corporations and then freely appear in our courts as a matter of pure business not subject to the ethics of our profession or the supervision of our bar associations and the discipline of our courts.

The uniform interpretation of 28 U.S.C. § 1654 and the reference to "the parties" therein is consonant only with the parties in interest -- the real beneficial owners of the claims asserted in the suit. Reverend Elder's interest is not that of the real beneficial owner where the corporation is a legal entity with an existence unto its own, separable from the interest of its president and founder. That fact is plainly pointed up in this case where the corporation achieved tax exempt status wholly apart from Reverend Elder's taxpayer status. Although section 1654 protects the individual's right to "plead and conduct [his or her] own cases personally," that right has never been enlarged to permit the individual to act in behalf of or as an agent for a party corporation. Heiskell, supra at 863. Accord, In re Highley, 459 F.2d 554, 555 (9th Cir. 1972); United States v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir. 1969); Shapiro, Bernstein & Co. v. Continental Record Co., 386 F.2d 426, 427 (2d Cir. 1967); Simbraw, Inc. v. United States, 367 F.2d 373, 374 (3d Cir. 1966); Flora Constr. Co. v. Fireman's Fund Ins. Co., 307 F.2d 413, 414 (10th Cir. 1962); Acme Poultry Corp. v. United States, 146 F.2d 738, 740 (4th Cir. 1944); Turner v. American Bar Ass'n, 407 F. Supp. 451, 476 (S.D. Tex. 1975); Algonac Mfr. Co. v. United States, 198 Ct. Cl. 258, 458 F.2d 1373, 1375 (1972). See Annot., 19 A.L.R.3d 1073 (1968).

No. 75-1721

Sears, Sucsy & Co., a Delaware corporation (hereinafter plaintiff), has appealed from entry of summary judgment in favor of defendant Insurance Company of North America and from the denial of its own motion for summary judgment. Plaintiff appeared by attorney below until May 8, 1975 when its attorney moved to withdraw from the case. On June 6, 1975, the district court entered its memorandum order in which it referred to the attorney's motion to withdraw in the context that Gerald A. Sears (Sears), president of plaintiff corporation, had been given notice of the attorney's motion to withdraw from representation of plaintiff as well as defendant's pending motion for ...


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