Opposition Brief — Palma v. Adler

()

No. 88-585

In the

Supreme Court of the United States

Ocroser TERM, 1988

JOHN PALMA and LINCOLN HOUSING AUTHORITY,

PETITIONERS,

v.

AMY ADLER,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE RHODE ISLAND SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

TO THE PETITION FOR CERTIORARI

Martin W. AISENBERG

Counsel of Record for Respondent

Jones & AISENBERG

72 South Main Street

Providence, Rhode island 02903

(401) 274-4446

JosePH F. PENza, JR.

OLENN & PENZA

1246 Chalkstone Avenue

Providence, Rhode Island C2908

(410) 351-5200

Blanchard Press, Inc., Boston, Mass.—Law Printers [617] 426-6690

QUESTIONS PRESENTED

1. Should the petition for certiorari be dismissed for want of

jurisdiction because the decision of the Rhode Island Supreme

Court, which reversed a directed verdict for petitioners

(defendants below) and remanded the case for a new trial, is

not a final judgment or decree as required by 28 U.S.C.

§ 1257?

2. Did the Rhode Island Supreme Court correctly rule that

the trial judge had violated the standard for assessing the

evidence on a motion for a directed verdict, had erroneously

viewed the evidence in the light least favorable to the respon-

dent (plaintiff below), had improperly drawn inferences

against respondent, and, consequently, that he had erred in

granting petitioners’ motion for a directed verdict on respon-

dent’s civil rights claims?

3. Did the Rhode Island Supreme Court correctly hold that

when respondent, an employee of petitioner Lincoln Housing

Authority, reported to the chairman of the authority’s board

of commissioners her observations of malfeasance by the

authority's executive director, petitioner Palma, including his

appropriation of public funds and equipment for his personal

use, her statements constituted speech on a matter of public

concern?

4. Did the Rhode Island Supreme Court correctly hold that

the petitioner housing authority could be held liable under 42

U.S.C. § 1983 for ratifying petitioner Palma’s termination of

respondent’s employment, on the ground that such ratification

constituted an act of official policy?

Ill

TABLE OF CONTENTS

Page

I I sg oc. ct esas oes vA A Vs are ]

ine oo Davee pe dG tas as 6a es ]

er a eds an ee ks V9 ask ia a ak SN ]

SE I er ae 2

I ig oe a be ew ses a ewan dees en 2

Reason Why the Petition Should be Denied............ 6

I. The Decision of the Rhode Island Supreme

Court Is Not a Final Judgment or Decree and

Therefore Is Not Reviewable in This Court... 6

II. The Rhode Island Supreme Court Correctly

Ruled That the Trial Judge Violated the Stan-

dard for Assessing the Evidence on a Motion

Sor a Trbemobets Verdict... 2... cc cence 13

III. Respondent’s Speech Obviously Addressed a

Matter of Public Concern................. 15

IV. The Lincoln Housing Authority Is Liable

Under 42 U.S.C. § 1983 for Ratifying Palma’s

Decision to Terminate Respondent’s Employ-

TABLE OF CITATIONS

Cases:

Bitgood v. Allstate Insurance Co., 481 A.2d 1001 (R.1.

ese Fone ora aa b eeu baa eos 13

City of St. Louis v. Praprotnik, 108 S. Ct. 915 (1988). 18, 19

Connick v. Myers, 461 U.S. 146 (1983)................ 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

eae a eek ee ee eek ee 6, 7, 8,9, 10, 11, 12

Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981).......... 12

Givhan v. Western Line Consolidated School District,

I a eet ory Ta ne Oe Sar ans 16

IV

Page

Goldstein v. Kelleher, 728 F.2d 32 (Ist Cir. 1984)....... 13n

Greminger v. Seaborne, 584 F.2d 275 (8th Cir. 1978).... 17

Hornyak v. Pomfret School, 783 F.2d 284 (1st Cir. 1986). 13n

Lemieux v. Leonard Construction Co., 73 R.1. 338, 58

pe YP: RR pal yg ee eas, eo be fae 10

McNeese v. Board of Education, 373 U.S. 668 (1963).... 19

Montuori v. Narragansett Electric Co., 418 A.2d 5 (R.I.

Sa Re ORONO COE ER te ee Oe wis 13

Mt. Healthy City School District Board of Education v.

See, ee es ee CTs os vd Si eaves aes 7,9

O'Dell v. Espinoza, cert. granted, 454 U.S. 1122 (1981),

dismissed for want of jurisdiction, 456 U.S. 430

SU ooo iis akca 0c dea SA en eed Geek Pees 12, 13

Pembaur v. City of Cincinnati, 475 U.S. 469

RS bas eich wk ea be es eee 17, 18, 19

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

S| PROV TEP eee ey Peer ee PPT Pes re 8

Rankin v. McPherson, 107 S. Ct. 2891 {1987)....... 15, 16

San Diego Gas & Electric Co. v. City of San Diego, 450

a Ge i Fe bw Sb aed Ce eed aa reese 7

Wisconsin v. Constantineau, 400 U.S. 433 (1971)....... 19

Zablocki v. Redhail, 434 U.S. 374 (1978).............. 19

Zwickler v. Koota, 389 U.S. 241 (1967)................ 19

Constitutional Provisions:

United States Constitution,

ae SG os a nae eeeee 12, 14, 16

Statutes:

ee a a os ea ek a oe eee 1, 2,6

EE aos wagner giana ]

Oe Sis Oe ides Cen etananes 1, 2, 3, 6, 12, 17, 18

SEN ea KE eel ee eae 2, 3, 6, 12

Miscellaneous:

Asmot., SD 1,, Tid. Bh Gi CA bears ono ee eee 6

Note, The Finality Rule for Supreme Ceurt Review of

State Court Orders, 91 Harv. L. Rev. 1004 (1978)

7, 8, 9, 10, 1

In the

Supreme Court of the United States

Octroser TerRM, 1988

No. 88-585

JOHN PALMA and LINCOLN HOUSING AUTHORITY,

PETITIONERS,

v.

AMY ADLER,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE RHODE ISLAND SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR CERTIORARI

Opinions Below

The trial judge’s decision was rendered from the bench and

is not reported. The opinion of the Rhode Island Supreme

Court is reported sub nom. Adler v. Lincoln Housing Author-

ity, 544 A.2d 576 (R.I. 1988).

Jurisdiction

Petitioners invoke the Court’s jurisdiction under 28 U.S.C.

§ 1257(3). However, the Rhode Island Supreme Court did not

2

render a “final judgment or decree,” which is necessary to vest

jurisdiction in this Court under § 1257; rather, it reversed the

judgment that had been entered on a directed verdict for peti-

tioners and remanded the case to the superior court for a new

trial. Respondent therefore submits that the petition for cer-

tiorari should be dismissed for want of jurisdiction.

Statute Involved

Respondent concurs with petitioners’ statement under this

heading.

Statement of the Case

The respondent, Amy Adler, brought this action in state

court under 42 U.S.C. §§ 1983 and 1985, as well as under

Rhode Island common law. The complaint alleged that peti-

tioners — the Lincoln Housing Authority and its executive

director, John Palma — had terminated respondent's employ-

ment with the housing authority in violation of her constitu-

tional right to freedom of speech on matters of public concern.

The case was tried to a jury. At the conclusion of respondent's

case, the trial judge granted petitioners’ motion for a directed

verdict on all counts.

On appeal, the Rhode Island Supreme Court reversed the

judgment and remanded the case for a new trial on the § 1983

claims. The court held that the trial judge had erroneously

viewed the evidence in the light most favorable to petitioners

and had improperly drawn inferences in their favor; that

respondent’s speech addressed a matter of public concern and

therefore was constitutionally protected; and that the author-

ity’s ratification of Palma’s decision to terminate respondent

was an act of official policy for which the authority could be

held liable under § 1983. Respondent did not appeal the tria!

judge’s dismissal of her state law claim for intentional inflic-

3

tion of emotional distress (544 A.2d at 579 n.2, App. at 23a

n.2); nor does she challenge in this Court the Rhode Island

Supreme Court’s rejection of her conspiracy claim under 42

U.S.C. § 1985 (544 A.2d at 582, App. at 3Ua-3la). Thus, the

only issue before this Court (apart from its jurisdiction, which

respondent contends is lacking in this case) is whether the

Rhode Island Supreme Court correctly reversed the directed

verdict on respondent’s § 1983 claims.

Petitioners’ statement of the case is highly misleading, both

procedurally and factually, because it ignores the posture in

which this case reached the Rhode Island Supreme Court and,

consequently, the posture in which it reaches this Court.

Nowhere do petitioners acknowledge that the court below

remanded this case to the nisi prius court for a new trial. The

words “directed verdict” do not appear in the petition; nor do

petitioners bother to mention either the duty of a trial judge

when ruling on a motion for a directed verdict or the standard

of review on appeal of a directed verdict. To the contrary, the

petition leaves the distinct impression that the trial judge was

the finder of fact (Pet. at 9, 11) and that the Rhode Island

Supreme Court, “reading from a ‘cold record’ and not having

the opportunity to see the witnesses” (Pet. at 11), improperly

rejected his factual findings. Nothing could be farther from

the truth; a jury was the trier of fact in this case, and it was the

trial judge, not the supreme court, who improperly invaded

the province of the factfinder. Thus, petitioners’ statement of

“facts,” which for the most part either paraphrases or repeats

verbatim the trial judge’s “findings,” is fatally flawed.

The evidence, viewed in the light most favorable to respon-

dent and with all reasonable inferences drawn in her favor,

establishes the facts set forth in the opinion of the Rhode island

Supreme Court (544 A.2d at 578-80, App. at 2la-26a). Briefly,

those facts are as follows.

The Lincoln Housing Authority is a governmental agency

created by the Rhode Island Legislature te take advantage of

4

federally funded housing programs. In January 1981 peti-

tioner Palma, the authority’s executive director, hired respon-

dent for a position entitled “secretary/bookkeeper and leased

housing manager.” Her duties included administration of the

federal section 8 housing program. She worked in an office

with Palma and the assistant executive director, Carol Ken-

nedy.

Working relations in the office grew strained when Kennedy

refused Palma’s request that she help resolve a personal pro-

blem between Palma and his girlfriend, who was a former

employee of the authority and friend of Kennedy’s. Kennedy

reported this to the chairman of the authority’s board of com-

missioners, and in June 1981 the board met to discuss the mat-

ter. The next day, Palma, Kennedy and respondent met with

the chairman and vice-chairman of the board. “[Respondent]

and Kennedy were directed to report any future intra-office

problems to Palma first, who in turn would contact the com-

missioners upon request.” (544 A.2d at 578, App. at 21a.)

Thereafter, relations between Palma and Kennedy grew

steadily worse, and Palma began to direct his anger toward

respondent as well. Beginning in October 1981, respondent

maintained written records regarding Palma’s behavior. Her

motive was to document that she and Kennedy were often

forced to take official action on Palma’s behalf because of his

excessive absence from the office. Respondent also observed

that Palma was using the authority’s office as his personal

resicence' and that he was using the authority’s trucks and

gasoline credit cards for his personal needs. Respondent also

“believed that Palma was improperly ignoring regulations

concerning the priority of applicants for section-8 housing and

that because of his actions the tenants were being deprived of

benefits intended for recipients of federal assistance.” (544

A.2d at 578, App. at 2la-22a.)

' Petitioners claim that the office “had apartment facilities” (Pet. at 4).

There is no evidence in the record to support this assertion; to the contrary,

respondent and Kennedy both testified that they would arrive at work in the

morning to find Palma asleep in their office on a rollaway bed.

———————— aaa.

5

Respondent apprised the chairman of the board of commis-

sioners of Palma’s activities.* As a result, the entire board met

with Palma on January 7, 1982 to discuss respondent’s com-

plaints. Palma admitted using the authority’s office as his per-

sonal residence for over 3 months, using an authority truck to

move his own furniture, and using an authority credit card to

buy fuel for the truck while on personal business.* He made

restitution to the authority for his use of the credit card and of-

fered to reimburse the authority for making the office his

home.

Subsequently, personnel relations worsened, and on

February 2, 1982, defendant Palma, through Kennedy,

informed plaintiff that she was no longer responsible for

administering section-8 housing. In response plaintiff ap-

preached Palma and inquired about his decision to

change her duties. Palma replied that he owed her no ex-

planation. The plaintiff asked to file a grievance, and

Palma replied that the request was denied. The plaintiff

questioned Palma’s authority to deny her the right to file

a grievance, and he replied that if she questioned his

authority, she was fired. [544 A.2d at 578, App. at 22a. |

2 The chairman at that time was respondent's father. The trial judge's

repeated, sarcastic references to this fact

indicate[] that [he] attached negative inferences in making his deter-

mination. The fact that plaintiffs father was chairman is ir-

relevant. . . . Because the board is vested with the ultimate control

over the housing authority, clearly plaintiff's only available recourse

was to alert those authorities about Palma’s alleged felonious activities.

Undoubtedly, plaintiff would have contacted the board whether her

father was a member or not.

544 A.2d at 579-80, App. at 24a-25a. Moreover, petitioners’ statement that

Palma and respondent’s father had been engaged in a public dispute “just

before this time” (Pet. at 5) is incorrect; in fact, that dispute took place ap-

proximately 4 years before the events narrated herein. Again, the trial judge

improperly drew a negative inference from the long-ago dispute between

Palma and respondent’s father (App. at 8a).

3 Palma admitted all this at trial. It is not clear from the record what, if

anything, he admitted to the commissioners at the meeting of January 7,

1982.

6

Respondent contacted one of the commissioners, who in-

structed her to submit a written grievance to the board. She

did so, providing a copy to Palma. Three days later, Palma

handed her a letter stating that her employment was ter-

minated. Subsequently, after a hearing held at respondent’s

request, the board of commissioners sustained Palma’s

decision.

As previously noted, the trial judge entered judgment on a

directed verdict in favor of petitioners. The Rhode Island

Supreme Court affirmed in part (on the § 1985 claim) and

reversed in part (on the § 1983 claims) and ordered the case

“remanded for further proceedings consistent with this

opinion” — i.e., a new trial on the § 1983 claims. (544 A.2d at

582, App. at 3la.) -

Reasons Why the Petition Should Be Denied

I. THE DECISION OF THE RHODE ISLAND SUPREME Court Is Not

A FINAL JUDGMENT OR DECREE AND THEREFORE Is Not

REVIEWABLE IN THs Court.

This Court’s jurisdiction to review state court decisions by

way of either appeal or certiorari is governed by 28 U.S.C.

§ 1257, which limits that jurisdiction to review of “[f]linal

judgments or decrees rendered by the highest court of a State

in which a decision could be had.” When, as here, a state ap-

pellate court remands a case to a nisi prius court for trial on the

merits, its decision is not final and therefore is not ordinarily

reviewable under § 1257. Annot., 29 L. Ed. 2d 872, 883-87

(1972) (citing many cases).

Nevertheless, the finality requirement of § 1257 has not

been applied in a mechanical or strictly literal fashion; rather,

the Court has taken a pragmatic approach, recognizing that

there are circumstances justifying a departure from the rule of

finality. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

KK

(1975), the Court “elaborated a conceptual scheme of four

discrete categories to encompass its prior decisions permitting

an exception to the rule of finality and presumably to serve as a

guide for future applications of section 1257.” Note, The

Finality Rule for Supreme Court Review of State Court

Orders, 91 Harv. L. Rev. 1004, 1005 (1978) (hereinafter

“Finality Note”).* This case does not fall into any of the Cox

exceptions to the rule of finality, and the petition should

therefore be dismissed for want of jurisdiction.

The first of the Cox exceptions applies “where for one reason

or another the federal issue is conclusive or the outcome of fur-

ther proceedings preordained.” Cox Broadcasting Corp. v.

Cohn, 420 U.S. at 479. In this situation “the federal claim to

be reviewed on interlocutory appeal is, as a practical matter,

conclusive of the case because the party asserting the claim has

no other grounds upon which to rest his claim.” Finality Note,

91 Harv. L. Rev. at 1015 (footnote omitted). In the instant

case, the Rhode Island Supreme Court has held that respon-

dent’s speech addressed a matter of public concern and

therefore was constitutionally protected. However, respon-

dent still must persuade a jury that her constitutionally pro-

tected conduct was a substantial or motivating factor in her

termination. Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274, 287 (1976). Furthermore,

the jury will be permitted to find in petitioners’ favor if

* The notewriter concludes that three of the four categories identified in

Cox

create difficulties both because their imprecision leads to a disturbing

unpredictability in application and, more importantly, because their

content rests upon premises that diverge from the assumption that

underlies the “entire case” paradigm — that as a general rule, the

benefits of interlocutory appeals in the individual case are to be

sacrificed for the systemic benefit gained by predicating appellate

jurisdiction upon finality.

Finality Note, 91 Harv. L. Rev. at 1026. See also Cox Broadcasting Corp. v.

Cohn, 420 U.S. at 501-12 (Rehnquist, J., dissenting); San Diego Gas & Elec-

tric Co. v. City of San Diego, 450 U.S. 621, 633-36 (1981) (Rehnquist, J.,

concurring).

8

petitioners can show by a preponderance of the evidence that

they would have fired respondent even in the absence of her

protected conduct. Jd. Thus, the decision below is not

dispositive of this litigation, the case is not “for ail practical

purposes concluded,” Cox Broadcasting Corp. v. Cohn, 420

U.S. at 479, and it therefore does not fall into the first Cox

category.

The second category consists of cases “in which the federal

issue, finally decided by the highest court in the State, will sur-

vive and require decision regardless of the outcome of future

state-court proceedings.” Jd. at 480.° An example cited by the

Court in Cox is Radio Station WOW, Inc. v. Johnson, 326

U.S. 120 (1945):

In Radio Station WOW, the Nebraska Supreme Court

directed the transfer of the properties of a federally

licensed radio station and ordered an accounting, rejec-

ting the claim that the transfer order would interfere

with the federal license. The federal issue was held

reviewable here despite the pending accounting on the

“presumption . . . that the federal questions that could

come here have been adjudicated by the State court, and

that the accounting which remains to be taken could not

remotely give rise to a federal question . . . that may

later come here... .”

Cox Broadcasting Corp. v. Cohn, 420 U.S. at 480, quoting

Radio Station WOW, Inc. v. Johnson, 326 U.S. at 127 (em-

phasis added). Thus, “[b]y definition, if the Court accepts

such a case for interlocutory review, it will not have to recon-

sider the case at a later date because the predicate to the excep-

tion is that no federal issues remain to be raised.” Finality

Note, 91 Harv. L. Rev. at 1019 (emphasis added; footnote

omitted).

> The Harvard notewriter suggests that a better explanation of the Court's

willingness to review cases in this category is that the petitioner would have

suffered irreparable injury before final judgment. Finality Note, 91 Harv. L.

Rev. at 1017-18.

9

This exception does not apply here, because federal issues

remain to be raised in this case. As noted above, at retrial

respondent must meet the burdens of production and persua-

sion imposed by the Mt. Healthy case, 429 U.S. at 287, and

petitioners are free to attempt the affirmative defense estab-

lished in that case, id. These are federa! issues, and their

resolution by the trial judge, the jury, and ultimately the

Rhode Island Supreme Court on appeal, will be reviewable in

this Court after final judgment. In fact, there are no state law

issues left in this case, because respondent did not appeal the

trial judge’s dismissal of her state law claim for intentional in-

fliction of emotional distress. This is now a pure § 1983 action,

indistinguishable from a similar case tried in a federal district

court. In such a case, “the likelihood that other federal ques-

tions will be raised in the course of the proceedings creates a

substantial possibility of delay from multiple appeals.”

Finality Note, 91 Harv. L. Rev. at 1019 n.85. Consequently,

this case does not fit into Cox category 2.

Furthermore, the other requisite of category 2 also is not

met here, because the Rhode Island Supreme Court has not

“finally” decided whether respondent’s speech is constitu-

tionally protected:

It is to be borne in mind that such conclusions of law as

we stated in the original opinion were conditioned, so to

speak, by the status of the case at that time when only the

plaintiff's evidence was before us. When the case is fully

tried defendants conceivably may be able to present evi-

dence which will remove several inferences favorable to

the plaintiff which we were required to draw on the

record before us.

In the event of such an altered factual situation defen-

dants would not be foreclosed by such conclusions of law

as we laid down in the original opinion based upon dif-

ferent facts.

10

Lemieux v. Leonard Construction Co., 73 R.1. 338, 350, 58

A.2d 625, 625-26 (1947) (emphasis added). Respondent

hastens to add that she does not believe that at retrial peti-

tioners will be able to establish “an altered factual situation”

which would justify a change in the Rhode Island Supreme

Court’s holding that her speech addressed a matter of public

concern. The fact remains, however, that the Rhode Island

Supreme Court cannot finally determine that issue until it is

presented with a complete record — i.e., a record that in-

cludes petitioners’ evidence as well as repondent’s.

Category 3 comprises cases in which

the federal claim has been finally decided, with further

proceedings on the merits in the state courts to come, but

in which later review of the federal issue cannot be had,

whatever the ultimate outcome of the case. Thus, in these

cases, if the party seeking interim review ultimately pre-

vails on the merits, the federal issue will be mooted; if he

were to lose on the merits, however, the governing state

law would not permit him again to present his federal

claims for review.

Cox Broadcasting Corp. v. Cohn, 420 U.S. at 481.° There are

three reasons why the case at bar does not fall into this

category. First, as demonstrated above, the federal claim has

not been “finally” decided. Second, if petitioners ultimately

prevail on the merits, the federal issue will not be mooted; all

of the issues in this case are federal issues, and all of them

would be reviewable on respondent’s appeal to the Rhode

Island Supreme Court, should the verdict go against her at

retrial. Third, if petitioners lose the second trial, they will be

able to appeal to the Rhode Island Supreme Court and obtain

review of their defenses on the whole record.

® The Harvard notewriter criticizes this category as being fundamentally

inconsistent with the independent and adequate state grounds doctrine.

Finality Note, 91 Harv. L. Rev. at 1021-23.

11

The fourth and last of the Cox exceptions involves

those situations where the federal issue has been finally

decided in the state courts with further proceedings pen-

ding in which the party seeking review here might prevail

on the merits on nonfederal grounds, thus rendering un-

necessary review of the federal issues by this Court, and

where reversal of the state court on the federal issue

would be preclusive of any further litigation om the rele-

vant cause of action . . . . In these circumstances, if a

refusal immediately to review the state court decision

might seriously erode federal policy, the Court has enter-

tained and decided the federal issue, which itself has been

finally determined by the state courts for purposes of the

state litigation.

Id. at 482-83 (empahsis added).’? Here, as previously noted,

the federal issues have not been finally determined by the state

courts. Moreover, there are no nonfederal grounds upon

which petitioners may ultimately prevail on the merits,

because there are no nonfederal issues left in this case. Finally,

a refusal of piecemeal review will not erode federal policy; to

? This category has been criticized as being “formless,” Cox Broadcasting

Corp. v. Cohn, 420 U.S. at 507 (Rehnquist, J., dissenting), and “susceptible

of virtually limitless expansion,” Finality Note, 91 Harv. L. Rev. at 1025

(footnote omitted). Moreover,

the imprecise manner in which the scope of the category is defined in-

vites litigants to seek review in all cases in which even arguably signifi-

cant federal rights are asserted. . . . Even if the Court denies review

of many of these interlocutory orders, the unpredictability of the ex-

ception disrupts the state court proceedings in general and forces the

Court itself to evaluate an increased number of petitions for in-

terlocutory review, thereby nullifying the efficiency of the finality

principle.

Id., at 1025-26. The instant petition demonstrates that this is not an un-

founded concern. This case, which was placed on the superior court's trial

calendar at the beginning of September so that the retrial could be

scheduled, has been continued indefinitely at petitioners’ request until this

Court rules on the petition. This delay works substantial hardship on respon-

dent.

i2

the contrary, the Rhode Island Supreme Court has upheld

federal policy, as set forth in the First Amendment, 42 U.S.C.

§ 1983, and the relevant decisions of this Court.

Respondent submits that the disposition of this case is con-

trolled by O'Dell v. Espinoza, cert. granted, 454 U.S. 1122

(1981), dismissed for want of jurisdiction, 456 U.S. 430 (1982)

(per curiam). In O'Dell, the plaintiffs (respondents in this

Court) had brought suit in Colorado state court under 42

U.S.C. §§ 1983 and 1985 seeking damages for the death of one

Arthur Espinoza, who had been shot and killed by police

officers. Espinoza v. O'Dell, 633 P.2d 455, 459 (Colo. 1981).

- The complaint asserted no claims under the state wrongful

death act. The trial court dismissed the complaint on the

ground that “a federal wrongful death remedy does not exist

under 42 U.S.C. § 1983 or 1985 independent of state wrongful

death remedies.” Jd. The Colorado Supreme Court reversed,

holding that the trial court had misconstrued earlier Colorado

case law upon which it had relied, that the complaint stated a

§ 1983 claim upon which relief could be granted, and that the

trial court had therefore erred in dismissing that claim. Id. at

462. Accordingly, the supreme court remanded the case to the

trial court for further proceedings. Id. at 469. This Court

granted the defendants’ petition for certiorari, but subse-

quently dismissed the case for want of jurisdiction:

Because the Colorado Supreme Court remanded this case

for trial, its decision is not final “as an effective deter-

mination of the litigation.” Although there is a limited set

of situations in which we have found finality as to the

federal issue despite the ordering of further proceedings

in the lower state courts, see Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469 (1975), this case does not fit into any

of those categories. We therefore dismiss for want of

jurisdiction.

456 U.S. at 430 (citations other than to Cox omitted).

13

pat ct ohne

In this case, as in O’Dell, the state supreme court has simply

ruled that the plaintiff/respondent is entitled to have her

federal claims, which are the only claims she is asserting,

heard and determined by a jury. Such a ruling, as the Court

noted in O’Dell, does not fit into any of the Cox categories.

Respondent therefore submits that the petition for certiorari

should be dismissed for want of jurisdiction.

Il. THE Ruyope IsLAND SuPREME CourT CorrECTLY RULED

THAT THE TRIAL JUDGE VIOLATED THE STANDARD FOR

ASSESSING THE EVIDENCE ON A MOTION FOR A DIRECTED VER-

DICT.

The question whether a state supreme court was correct in

holding that a state trial judge improperly withdrew a case

from a jury’s consideration hardly seems sufficiently important

to warrant this Court’s attention, even when the case in ques-

tion involves a federal civil rights claim. Be that as it may, the

Rhode Island Supreme Court’s ruling on this point was

manifestly proper.

The standard applicable to a motion for a directed verdict is

well established in Rhode Island. Both the trial court and the

appellate court must view the evidence in the light most

favorable to the nonmoving party and must give that party the

benefit of all reasonable inferences that may be drawn in his

favor, without weighing the evidence or assessing credibility.

If the evidence, so viewed, reveals issues upon which

reasonable minds could differ, the case must be submitted to

the jury. E.g., Bitgood v. Allstate Insurance Co., 481 A.2d

1001, 1005 (R.I. 1984); Montuori v. Narragansett Electric

Co., 418 A.2d 5, 9 (R.I. 1980).°

The trial judge apparently approached this case with

preconceived notions about the nature of public employment

* The federal standard is essentially the same. See, e.g.. Hornyak v. Pom-

fret School, 783 F.2d 284 (1st Cir. 1986); Goldstein v. Kelleher, 728 F.2d 32,

39 (Ist Cir. 1984).

—— —

14

which led him to view respondent's conduct in an unfavorable

light. He remarked that “Mr. Palma was the boss and in public

employment, at times, public employees must work for petty

dictators” (App. at 5a). He also stated that “[ijf this kind of

conduct |[i.e., respondent's reporting Palma’s malfeasance to

his superiors] had happened in the private sector, the plaintiff

would have been fired within a very short space of time, and

no one in the private sector would have raised an eyebrow”

(App. at 16a). Not only is it irrelevant whether a private

employee, who does not have First Amendment rights vis-a-vis

her employer, could be fired for the same conduct; in addi-

tion, this remark reveals a pro-employer bias that led the trial

judge to draw inferences against respondent.

For example, with regard to the truthfulness of respondent's

complaints against petitioner Palma, the trial justice stated

that “[i]t became readily apparent to the Commissioners that

most of these allegations were unfounded” (App. at 9a). There

is absolutely nothing in the record to support this conclusion;

to the contrary, “Palma admitted to the accuracy of many of

the allegations” (544 A.2d at 580, App. at 25a). There is no

evidence in the record of any factfinding by the commissioners

on the truthfulness of respondent's charges. Viewing the

evidence in the light most favorable to respondent, the only

permissible inferences are that the charges were true and that

the commissioners knew they were true but did not care.

The Rhode Island Supreme Court concluded its discussion

of this issue as follows:

The plaintiff testified that she reported Palma’s ac-

tivities because she believed that the housing authority

and its tenants had been deprived of benefits and that his

malfeasance constituted a matter of public concern.

Palma admitted to the accuracy of many of the allega-

tions. We conclude that the trial justice drew improper

inferences and failed to extract the reasonable inferences

15

that clearly supported plaintiff's position. In view of the

testimony presented, at minimum, reasonable persons

might form conflicting conclusions.

544 A.2d at 580, App. at 25a-26a (emphasis added). There is

nothing in the petition to create even a shadow of a doubt con-

cerning the correctness of this conclusion.

Ill. ResPONDENT’s SPEECH OsviousLy ADDRESSED A MATTER OF

Pusiic CONCERN.

In cases of this type, in which a public employee claims that

she was fired because of something she said, “[t]he threshold

question . . . is whether [the employee's] speech may be

‘fairly characterized as constituting speech on a matter of

public concern.” ” Rankin v. McPherson, 107 S. Ct. 2891,

2896-97 (1987), quoting Connick v. Myers, 461 U.S. 138, 146

(1983). This is a question of law to be determined by the court,

Connick v. Myers, 461 U.S. at 148 n.7, based upon “the con-

tent, form, and context of a given statement, as revealed by

the whole record.” Jd. at 147-48.

Allegations of abuse of office and theft of public resources

by the director of a public agency are inherently matters of

public concern. See id. at 148 & n.8 (plaintiff's complaints did

not address matters of public concern because, inter alia, she

did not seek to expose “wrongdoing or breach of public trust”

on the part of her superior). As the Rhode Island Supreme

Court put it:

We focus particularly on Palma’s admissions to plaintiff's

allegations concerning the misuse of public funds and

equipment. We are of the opinion that plaintiff's com-

ments address a matter of public concern. Palma was em-

powered to allocate federal funds to eligible and qualified

recipients. He breached his duty of trust to the taxpaying

EE

16

citizens who rely upon the integrity of civil servants

selected to administer our system of government. We do

not view the fact that Palma was candid about being

dishonest and derelict in performing his duties as ex-

ecutive director as negating the validity of plaintiff's exer-

cise of protected speech. [544 A.2d at 581, App. at 28a. |

Petitioners, like the trial judge, lay great stress on the fact

that respondent spoke privately to the chairman of the board

of commissioners about her concerns, rather than making a

public announcement. (Pet. at 4, 9, 11; App. at 6a-7a, 14a.)

Their argument that this deprives respondent's speech of First

Amendment protection is patently frivolous. In its most recent

opinion on this subject, this Court held that a statement made

by a public employee in a private conversation with her

boyfriend in a back office, which was overheard by another

employee without the speaker’s knowledge, was entitled to

First Amendment protection. The Court expressly noted that

“(t]he private nature of the statement does not . . . vitiate

the status of the statement as addressing a matter of public con-

cern.” Rankin v. McPherson, 107 S. Ct. at 2898 n.11, citing

Givhan v. Western Line Consolidated School District, 439

U.S. 410, 414-16 (1979) (held, First Amendment protection is

not “lost to the public employee who arranges to communicate

privately with his employer rather than to spread his views

before the public”).

Finally, petitioners say that respondent was fired, not

because she reported Palma’s malfeasance, but because she

was insubordinate (Pet. at i, 9-10). This issue is not actually

raised in the present posture of the case; the trial judge held

that respondent’s speech was not constitutionally protected as

a matter of law (App. at 15a), so he had no need to decide, and

did not decide, why she was fired (App. at 13a). Contrary to

petitioners’ suggestion (Pet. at 10), the Rhode Island Supreme

Court expressed no opinion on this issue. Nevertheless, in

— cee eRe Oa og

17

view of petitioners’ harping on this point,® it is worth noting

that whether respondent’s constitutionally protected conduct

was a substantial or motivating factor in the decisivn to ter-

minate her is a question of fact for the jury. Greminger v.

Seaborne, 584 F.2d 275, 278 (8th Cir. 1978). A reasonable per-

son could conclude that respondent was fired because she

brought Palma’s misconduct to the attention of the board of

commissioners, through its chairman. On petitioners’ motion

for a directed verdict, that inference must be drawn in respon-

dent’s favor.

IV. Tue LincoLtn Housinc AutTHority Is LIABLE UNpDER 42

U.S.C. § 1983 ror Ratiryinc PALMa’s DEcIsION To TER-

MINATE RESPONDENT S EMPLOYMENT.

The Lincoln Housing Authority’s board of commissioners

held a hearing at respondent’s request to review her termina-

tion. After the hearing, which respondent and her ccunsel

attended, the board took the matter under advisement. At a

subsequent meeting, to which respondent and her counsel

were not invited, the board voted to sustain Palma’s decision.

The Rhode Island Supreme Court correctly held that the

authority is liable under § 1983 for this act of official policy.

The Court has addressed this subject twice in recent years.

In Pembaur v. City of Cincinnati, 475 U.S. 469 (1986),'° the

Court emphasized that a municipality'! is liable not only for

acts which it “has officially . . . ordered,” but also for acts

which it “has officially sanctioned.” Id. at 480. The Court

went on to explain that

* “(T]he [Rhode Island] Supreme Court, for some reason, ignored the

crucial aspect of the case, which is the centerpiece for the reasons of the

firing.” (Pet. at 10).

‘© Although part II-B of the Pembaur decision was joined only by a plur-

ality of the Justices, respondent relies upon part II-A of the decision, which

was joined by a majority and is the opinion of the Court.

'! The trial judge correctly held that the Lincoln Housing Authority is the

equivalent of a municipality for § 1983 purposes. (App. at 3a.)

18

a government frequently chooses a course of action

tailored to a particular situation and not intended to con-

trol decisions in later situations. If the decision to adopt

that particular course of action is properly made by that

government's authorized decisionmakers, it surely

represents an act of “policy” as that term is commonly

understood. More importantly, where action is directed

by those who establish governmental policy, the munici-

pality is equally responsible whether that action is to be

taken only once or to be taken repeatedly. To deny

compensation to the victim would therefore be contrary

to the fundamental purpose of § 1983.

Id. at 481 (emphasis added). Last Term, in City of St. Louis v.

Praprotnik, 108 S. Ct. 915 (1988), Justice O'Connor, writing

for a plurality, stated tnat the actions of municipal officials

who have “final policymaking authority” will subject the

municipality to § 1983 liability, that whether an official has

such authority is a question of state law, and that the official

must be “responsible under state law for making policy in that

area of the city’s business.” Id. at 924. (emphasis in original).

The plurality explained the basis for municipal liability in

cases like this one as follows:

{When a subordinate’s decision is subject to review by

the municipality's authorized policymakers, they have re-

tained the authority to measure the official's conduct for

conformance with their policies. If the authorized

policymakers approve a subordinate’s decision and the

basis for it, their ratification would be chargeable to the

municipality because their decision is final.

Id. at 926 (emphasis in original).

Here, the Rhode Island Supreme Court has held that “the

board of commissioners retains control and final authority

19

over the executive director. The board ratified the decision by

Palma to terminate plaintiff.” 544 A.2d at 582, App. at 30a

(emphasis added). Thus, the board has final policymaking

authority for the Lincoln Housing Authority, and it is respon-

sible under Rhode Island law for the authority’s personnel

policies. Praprotnik v. City of St. Louis, 108 S.Ct. at 924. The

board approved Palma’s decision to fire respondent. Jd. at

926. Such ratification constituted “a course of action tailored

to a particular situation and not intended to control decisions

in later situations,” and the decision to take that course of

action was “properly made by [the housing authority's]

authorized decisionmakers.”” Pembaur v. City of Cincinnati,

475 U.S. at 481. In these circumstances, the Rhode Island

Supreme Court was clearly correct in holding that “the hous-

ing authority, as a properly constituted administrative body, is

liable [under § 1983] for acts that it has officially sanctioned

. .” (544 A.2d at 582, App. at 30a.)

Petitioners’ only argument on this point is the astonishing

assertion that respondent’s § 1983 action against the authority

is barred because her attempt to obtain judicial review of the

board’s decision, in the hope of overturning it on state law

grounds, was dismissed because it was filed in the wrong

court. (Pet. at 12-14; see App. at lla.) Petitioners contend that

this case is distinguishable from Pembaur and Praprotnik

because the board’s decision was “subject to judicial review in

the state court system.” (Pet. at 12.) Petitioners cite no

authority for this proposition; nor could they, for the law is

firmly settled the other way. This Court has repeatedly held in

a variety of contexts that the exhaustion of judicial remedies

available under state law is not a prerequisite to § 1983 relief.

See, e.g.. Zablocki v. Redhail, 434 U.S. 374, 379-80 n.5

(1978); Wisconsin v. Constantineau, 400 U.S. 433, 437-39

(1971): Zwickler v. Koota, 389 U.S. 241, 245-52 (1967):

McNeese v. Board of Education, 373 U.S. 668, 672 (1963).

bene eenrenenennenmnnl

20

Conclusion

For the reasons set forth in point I of this brief, respondent

respectfully requests that the petition be dismissed for want of

jurisdiction. Alternatively, for the reasons set forth in points

II, II] and IV, respondent respectfully requests that certiorari

de denied.

By her attorneys,

MartTIn W. AISENBERG

Counsel of Record for Respondent

Jones & AISENBERG

72 South Main Street

Providence, Rhode Island 02903

(401) 274-4446

JosepH F. Penza, Jr.

~OLENN & PENZA

1246 Chalkstone Avenue

Providence, Rhode Island 02908

(410) 351-5200