Opposition Brief — McDowell v. Barnes

f\

No. 88-726 )

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

CHARLES McDOWELL,

ED FOSSETT, and

SAM SERAGLIO, : - - - - Petitioners

versus

ROBERT BARNES, - - - - - Respondent

RESPONSE TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

SIXTH CIRCUIT

PHILIP C. KIMBALL

831 East Madison Street

Louisville, Ky. 40204

(502) 587-7086, 634-9126

Counsel for Respondent, Robert Barnes

WESTERFIELD-SONTE CO., 619 W. KENTUCKY~*.0. BOX 3251, LOUISVILLE, KY.

QUESTIONS PRESENTED

1. Is an England reservation necessary if there is

nothing in the relevant state law of judgments that

would preclude an individual from bringing a lawsuit

in federal court pursuant to 42 United States Code

section 1982 ?

2. Does the Kentucky law of judgments bar a law-

suit brought pursuant to 42 United States Code section

1983 where the plaintiff has previously unsuccessfully

availed himself of an administrative procedure, as well

as judicial review of that procedure, whereby he was

able to challenge the propriety of his dismissal from

state employment upon various state law grounds?

3. Does the mere existence of an otherwise valid

reason for discharging a public employee preclude the

possibility that a motivating factor in his dismissal

was constitutionally impermissable so that he could

recover under 42 United States Code, section 1983 ?

il

TABLE OF CONTENTS

PAGE

Questions Presented. .. .6ikscisnccaxac eee i

zemle of Authorities .... 6046514140 ee lli-iv

Statement of the Gaee « ..icisiscepet cu eeedeanes l- 2

Reasons for Denying the Petition .................. 2-12

I. An Lngland Reservation is not necessary where,

as here, there is nothing in the state law of

Judgments that would preclude an individual

from bringing a lawsuit in federal Court pur-

suant to 42 United States Code Seetion 1983,

and to the extent that the opinion of the Court

of Appeals appears to state otherwise, it is

simply obdtter dicta, 2... 4495 .2- 6

IT. The Kentucky law of judgments did not pre-

clude the respondent's section 1983 action under

the cireumstanees of this case ...........008. 6-11

Ill. The mere existence of an otherwise valid reason

for discharging a publie employee does not pre-

clude the possibility that a motivating factor in

his dismissal was constitutionally impermissable

so that he could recover under 42 United States

Code section 1963 .....</\s4595 ee ee 11-12

to er 12-13

iil

TABLE OF AUTHORITIES

Cases: PAGE

Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411 (1980) 4,5

Blair v. City of Winchester, Ky. App., 473 S.W. 2d

Dr cLste ls 6as c06eeubaddunarenasnenets i)

Blevins v. Johnson, Ky., 944 S.W. 2d 375 (1961) ... §

Citizen's Teli phone ('o. Vv. Anderson, Ky., 291 S.W.

Fe es | rrr rrerrrreyy rrr? rrr s

England vy. Louisiana State Board of Medical Ex-

aminers, 375 U.S. 411, 84 S. Ct. 461 (1964) ...2, 3, 4,

5, 6,10, 12

Floyd County Board of Education v. Layne, Ky.,

RN A at. > | rae 9

George Vv. United Kentucky Bank, Inc., 743 F. 2d 50

(6th Cir.) cert. denied, 471 U.S. 1018, 474 USS.

rrr ry Tyrer rrr rrr rere rs s

Government and Civic Employees Organizing Com-

mittee. CIO v. Windsor, 353 U.S. 664, 72 S. Ct.

nn ne sks wee peccwedasadeedess 3

Gray v. Union County Intermediate Education Dis-

trict, 520 F. 2d 803 (9th Cir., 1975) ......... 11

Greater Cincinnati Marine Service, Inc. v. City of

Ludlow, Ky., 602 S.W. 2d 427 (1980) ......... 7

Holley v. Seminole County Se hool District. 755

F’. 2d 1492 (Lith Cir., 1983) ..... cc ccc cc cases 12

Mabey v. Reagan, 573 F. 2d 1036 (9th Cir., 1976) .. 11

Miara v. Warren City School District Board of

Education, 465 U.S. 1s 102 s. & 4 S92, 79 L. od.

ee. ce. tS es cere eee ones eek ea es 4,5

Mount Healthy City School District Board of Edu-

cation Wi Doyle ‘ 429 US. 274, 97 s. Ct. 568 (1977) 12

Sedley vy. City of West Beuchel, Ky., 461 S. W. 2d

ccna spake baw eee eeedeeesanetes ea 10

University of Tennessee vy. Elhott, U.S. —, 106

ED <i sccéacebdeonsesvcvscnabu ated 4,5

]}"] llenbera | De 12) er P } } Construction rai

Laberty Mutual Insurance Co., Ky., 390 S.W.

Statutes:

+)? [ nited States (‘oc tk ie rion 1O83

v.

PAGE

2d

S

7

n

DASSUMW

‘

IN THE

SUPREME COURT OF THE UMTED STATES

October Term, 1988

No. 88-726

CHARLES McDowELL,

Ep Fossett, and

Sam SERAGLIO, . . . ° Petitioners

.

Ropert BARNES, - . - - - Respondent

RESPONSE TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

SIXTH CIRCUIT

STATEMENT OF THE CASE

The Respondent, Robert Barnes, adopts and incor-

porates by reference into this Brief the factual outline

of this case set forth by the United States Court of

Appeals for the Sixth Circuit in its opinion, which may

be found at pages 2a-1la of the Petitioners’ Appendix,

with the following addition and caveat, respectively :

Respondent is totally blind, and the Kentucky Person-

nel Board ultimately coneluded that it could not con-

sider Respondent’s alleged sexual harassment of one

Anna Fay Katon in any manner in disposing of Re-

spondent’s ‘appeal’ to it of his discharge (See Peti-

tioner’s Appendix, pp. 60a-6la, contradicting footnote

1 of the Opinion of the Sixth Cireuit, Petitioner's

»)

—

Appendix, p. 3a). Respondent especially directs the

Court's attention to footnote 4 of the opinion of the

Court of Appeals at pp. 5a-Ga of Petitioner’s Ap-

pendix, where the Court sets forth verbatim the por-

tions of the Respondent's original complaint deseribing

the content of the speech that he believes let the Peti-

tioners to bring about his discharge from employment

with the Commonwealth of Kentucky.

Respondent also adopts and incorporates by refer-

ence into this Brief the Sixth Cireuit’s deseription of

the procedural genesis of this case, as set forth to some

extent at pp. 2a-lla of Petitioners’ Appendix but

Inostly at pp. lla-13a, with only the eaveat that the

decision of the Kentucky Court of Appeals against

Respor dent was on a 2-1 vote, Judge Miller dissenting.

REASONS FOR NOT GRANTING THE PETITION

I

An England Reservation Is Not Necessary Where, as Here,

There Is Nothing in the State Law of Judgments That

Would Preclude an Individual From Bringing a Law-

suit in Federal Court Pursuant to 42 United States

Code Section 1983, and to the Extent That the Opinion

of the Court of Appeals Appears to State Otherwise,

It Is Simply Obiter Dicta.

The Respondent believes that this Court need not

consider the propriety of the discussion of the Court of

Appeals of the ease of England v. Louisiana State

Rourd of Medical Examiners, 375 U.S. 411, 84 S. Ct.

161 (14) for the simple reason that no England

“reservation” was ever necessary in this ease. This

heing the case, there was simply ne need for the Court

3

to discuss the England opinion, and its discussion of

England was therefore obiter dicta

In England, a case that was apparently not prose-

euted as a damages claim under 42 United States Code

section 1983 but rather a direct attack upon the Consti-

tutionality of a state statute, this Court was faced with

a situation where certain individuals had in a Louisiana

Court:

~ unreservedly submitted for decision, and

briefed and argued, their contention that the

[Louisiana] Act [making certain educational re-

quirements for chiropractors], if applicable to

chiropractors, violated the Fourteenth Amend-

ment,

Id., 374 U.S. at 413-414, &4 S. Ct. 463-464. The plain-

tiffs brought the same claim into the proper United

States District Court as well as a Louisiana Court. The

federal Court dismissed the claim upon the basis that

the Louisiana Courts had decided the Constitutional

issue at stake.

Because the plaintiffs in England had been forced

into the Louisiana courts by the federal court in which

they had originally filed their Constitutional challenge

and because they mistakenly believed that they were

obligated under Government and Civic Employees

Organizing Committee, CIO v. Windsor, 353 U.S. 664,

72 8. Ct. 838, 1 L.Ed. 2d 894 to raise all federal issues

in the Louisiana courts under these circumstances, this

Court reversed the dismissal of the plaintiffs’ claims

by the lower federal courts involved, England, supra,

375 U.S. at 422-423, 84S. Ct. at 468.

4

Although the Englaid opinion does not say so spe-

cifically, it is obvious that the lower federal Courts had

acted as they did because of the full faith and credit

doctrine, /d., 375 U.S. at 414, 84 8S. Ct. at 464. This

Court, in reversing the lower Courts, created a method

whereby litigants may avoid the application of this

doctrine. The method, of course, is known as the

England reservation.

Buglaud was decided before this Court specifically

held that full faith and credit must be given to state

court judgments by Federal courts in actions brought

pursuant to 42 United States Code section 1983. The

reasoning for such a rule of law is that it is required by

the language of 28 United States Code section 1738.

The rule was set forth in a trilogy of eases, A/len vy.

MeCurry, 449 US. 90, 101 S.Ct. 411 (1980), Migra v.

Werren City School District Board of Education, 465

US. 7), 102 S. Ct. 892, 79 L. Ed. 2d 56 (1984) and

University of Tennessee v. Elliott, ——~ U.S. ———, 106

S. Ct. 5220 (1986).

Defendants in many section 1983 actions, and even

some federal district courts, seem to believe that these

cases require the dismissal of section 1983 actions when-

ever a defendant can show that in some way, however

remote, a plaintiff has initiated some state proceedings

relating to his Constitutional claims. Of course, this

isnot so. Allen, Migra, and Elliott simply and plainly

held that section 1983 actions are subject to the same

preclusion defenses as other actions, and that these

defenses are to be analyzed according to the law of the

state Whose courts or agencies produced papers that

5)

arguably support the defenses, Migra, supra, 104 S.Ct.

at 896, Elliott, supra, 106 S.Ct. at 3227.

One method whereby plaintiffs have been able to

avoid the application of preclusion defenses in section

1983 actions, of course, is by filing an Kngland reserva-

tion in any state proceedings that could conceivably

give rise to papers that might be argued to bar a federal

section 1983 claim. However, common logie dictates

that the failure to file such a reservation can never in

and of itself defeat a section 1988 action. Only the

application of the relevant state law of judgments can

do that under Allen, Migra, and Elliott. Thus where a

plaintiff can persuade a federal court that pavers pre-

sented by his adversary do not preclude his section

1983 action under applicable state law, he is entitled to

proceed with that action, Hngland reservation or no

England reservation. That is precisely what happened

in the ease at bar.

The Court of Appeals determined that Respondent's

state administrative and judicial proceedings that re-

suited in various papers advanced by Petitioners as

precluding his section 1983 lawsuit did not constitute

the same ‘‘eause of action’’ as the section 1983 suit,

thereby defeating the defense of claim preclusion (**res

judicata’’) under Kentucky law (Petitioner’s Appen-

dix, pp. 1a-12a). It also determined that Respondent's

state procecdings did not involve the Constitutional

issues raised in his section 1983 action, thereby defeat-

ing the defense of issue preclusion (*‘collateral estop-

pel’?) under Kentucky law (Petitioner’s Appendix,

pp. 12a-13a), except to the limited extent that Respond-

.

6

ent may now he sald to have engaged in) sexual harass-

meut of at least one female co-worker at his former

workplace with the Kentucky Bureau for the Blind

(Id., p. 19a).

The resolution of these issues was all that was

necessary to decide Respondent’s appeal in his favor.

The Court of Appeals’ discussion of the England reser-

vation issue which none of the parties had even men-

tioned in passing in their briefs for the court, was

simply beside the point.

Il

The Kentucky Law of Judgments Did Not Preclude the

Respondent’s Section 1983 Action Under the Circum-

stances of This Case.

It is not without irony that the Petitioner’s ground

their attack upon the Court of Appeals’ holding that

the Kentucky law of judgments did not indicate that

any of the papers produced by them were entitled to

dispositive preclusive eftect almost solely on the basis

that the Court incorrectly determined that claim pre-

clusion Was net present in this case. This is because

even the District Court agreed with the Respondent

that his claim was not barred by applieation of the

Kentucky law of claim preelusion. In faet, it specifi-

cally held that the Kentucky administrative and ju-

} ]

'

t I

( Toh

proceedings in which the Respondent had en-

La

m=

ged to challenge his dismissal from state employment

were hot the same “‘cause of action” as Respondent’s

section 1983 lawsuit ( Petitioner’s Appendix, pp. 26a-

M8). so that claim preclusion did not apply to the

Lawsull

7

The Petitioners did not appeal from this aspect of

the District Court’s judgment in this case. Respondent

argued to the Court of Appeals that they were there-

fore estopped from arguing against it on appeal. He

believes that they should not be heard to make this

argument at this stage of the proceedings any more

than they should have been heard to make it before the

Court of Appeals.

Furthermore, the arguments against the lower

courts’ determination that the ‘‘causes of action’’ at

issue in this case are not identical, thereby defeating the

defense of claim preclusion under Kentucky law, are

without merit.

Respondent’s state proceedings arose when he at-

tempted to avail himself of a statutorily created ad-

ministrative procedure whereby he could challenge his

dismissal from state employment. The state agency

set up by Kentucky law to hear such challenges is the

State Personnel Board, Kentucky Revised Statutes

18A, et seq.

There is no obligation under Kentucky law to raise

Constitutional issues before administrative agencies

such as the Personnel Board, see Greater Cincinnati

Marine Service Ine. v. City of Ludlow, Ky., 602 8S. W.

2d 427 (1980) as interpreted by District Judge Bertles-

man in Weaver v. Anderson County Fiscal Court, 648

F. Supp. 1575, 1579-1580 (1986). In fact, the cited

opinions cast considerable doubt upon the notion that

Kentucky Courts would ever pay any mind to the

attempts of administrative agencies to resolve Consti-

tutional issues. In the Weaver case, Id., Judge Bertles-

8

man specifically refused to give any preclusive effect

whatsvever to the actions of one Kentucky administra-

tive agency after applying the Kentucky law of judg-

ments.

Logic would seem to demand that an action begun

in a forum that is probably not even competent to

determine Constitutional issues could not be described

as a ‘‘eause of action’’ identical to a section 1983 law-

suit. Of course, under Kentucky law, such identity of

eause of action is necessary before the doctrine of claim

preclusion may be applied by the courts in any manner,

jlevins v. Johnson, Ky., 344 S.W. 2d 375, 377 (1961).

Identity of cause of action under Kentucky law

never exists merely because successive actions of one

sort or another arise from the same subject matter,

transaction, or state of facts, Id. In fact, even such

an apparently innocuous difference between two law-

suits as the type of relief sought is enough, under

Kentucky law, to make them separate causes of action

for purposes of the application of the doctrine of claim

preclusion, Citizen’s Telephone v. Anderson, Ky., 291

S.W. 2d 517 (1956). Cases from the Court of Appeals

that decided the case at bar indicate that it is well

aware of the great reluctance of Kentucky courts to

identify any proceedings begun in an administrative

agency with original judicial actions, especially Con-

stitutional actions, see Vinson v. Campbell County

Fiscal Court, 820 F. 2d 194, 197 (6th Cir., 1987),

George v. United Kentucky Bank, Inc., 753 F. 2d 50, 53

(6th Cir.), cert. denied 471 U.S. 1018, 474 U.S. 821

(1985). There is also a recent Kentucky opinion af-

9

firming the right of a discharged publie employee to

pursue a section 1983 claim in the same state Court that

affirmed his employer’s discharge of him on state law

grounds! Blair vy. City of Winchester, Ky. App., 473

S.W. 2d 28 (1987).

Furthermore, Kentucky law provides broad discre-

tion in both trial and appellate courts to avoid the

application of claim preclusion in particular cases. As

the Kentucky Court of Appeals, then the state's highest

Court, said in Floud County Board of Education v.

Layne, Ky., 474 SAW. 2d 397, 399 (1972) :

. . . the doctrine of res judicata [claim preclu-

sion] is to be applied in particular situations as

fairness and justice require, and . . . it is not

to be applied so rigidly as to defeat the ends of

justice or so as to work an injustice.

Kentucky Courts are particularly reluctant to in-

voke the doctrine of claim preclusion when the issues

‘aised in the/later litigation were not clearly decided in

the earlier proceedings, i.e. the clear presence of issue

preclusion is almost a requisite for the invocation of

claim preclusion. As the Court said in Whittenberg

Engineering and Construction Co. v. Liberty Mutual

Insurance Co., Ky., 390 SW. 2d 877, 883 (1965) pre-

vious judgments are conclusive only, **. . . if the

questions of fact are . . . actually litigated and de-

termined in the first action,” even if there is identity

of cause of action by some stretch of the imagination.

Of course, in the case at bar, the Court of Appeals

specifically held that the questions of fact that must be

10

analyzed in Respondent’s section 1983 action were

never litigated during his state proceedings:

When the Kentucky State Courts reviewed

Barnes’s discharge, the only matter determined

was whether the [Personnel] Board’s factual find-

ings that the discharge was justified because

Barnes had engaged in sexual harassment was

supported by substantial evidence in the record.

Whether the defendants’ motivation for the dis-

charge was unconstitutional simply was not an

issue in the state judicial proceedings ( Petitioners’

Appendix, p. 12a).

Although it probably does not matter, even the

Petitioners have admitted that Respondent’s Constitu-

tional issues were not directly raised before or decided

by the Personnel Board any more than they were by

the Courts of Kentucky when Respondent appealed to

them.

Obviously, therefore, the defense of issue preclusion

Was no more applicable to the case at bar than the

defense of claim preclusion, since under Kentucky law

it is applied:

only as to matters which were necessarily

involved and determined in the former action and

it is not conclusive as to matters which were imma-

terial or unessential to the determination of the

prior action or which were not necessary to uphold

the judgment [Pctitioners’ Appendix, p. 12a,

citing Sedley v. City of West Buechel, Ky., 461

S.W. 2d 556, 558 (1970) }.

Finally, although the Petitioners obviously would

have us believe otherwise, previous judgments in Ken-

11

) tucky are conclusive, ‘*. . . only upon those issues

made or tendered,”’ in the earlier litigation, and not

upon every issue that conceivably may have been raised

in the litigation, Bryan Brothers Packing Company Vv.

Garrard, Ky., 386 S.W. 2d 469 (1965). The issues

present in Respondent’s section 1983 case were neither

made nor tendered to the Kentucky Personnel Board or

the Kentucky courts.

Certainly, the Court of Appeals was justified in

holding that neither the Kentucky law of issue preclu-

sion nor the Kentucky law of claim preclusion offered

any obstacles to Respondent’s section 1983 claims in

federal Court.

III

The Mere Existence of an Otherwise Valid Reason for

Discharging a Public Employee Does Not Preclude the

Possibility That a Motivating Factor in His Dismissal

Was Constitutionally Impermissable So That He Could

Recover Under 42 United States Code Section 1983.

Essentially, the Petitioners attack the well-estab-

lished legal rule that the existence of a Constitutionally

permissable ground for disciplining a public employee,

ms does not end [the] inquiry [into the reasons

for the discipline | when a second basis is alleged to be

[ Constitutionally | impermissible,’’ Mabey v. Reagan,

d73 F. 2d 1036, 1044 (9th Cir., 1976). Put another way,

even when retaliation for the exercise of a Constitu-

tional right is only a partial factor in the decision to

discharge a public employee, it is still unlawful, Gray

v. Union County lvtermediate Education District, 520

F.2d 803 (9th Cir., 1975).

) atti

12

Under Mount Healthy City School District Board

of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977)

a Constitutional violation may certainly be found even

in the face of an otherwise legitimate reason for dis-

ciplining a public employee, [Tolley v. Seminole County

School District, 755 F. 2d 1492, 1501 (11th Cir., 1985).

Indeed, federal courts must do an independent **search-

ing review’? to determine motive in such apparent

‘‘mixed motive’’ cases. Jd. at 1503. Petitioners’ sug-

gestion to the contrary notwithstanding (Petitioner,

p. 20), the District Court made no attempt to perform

such a review, which is usually in any event a jury

function, in the case at bar.

The Court of Appeals was quite correct when it

opined that:

. the fact that Barnes harassed females dur-

ing his tenure at the Bureau does not eliminate the

possibility that the real reason [for his discharge |

was because he spoke out on a matter of public

concern ( Petitioners’ Appendix, p. 15a).

CONCLUSION

Petitioners have not once sought to invoke Rule 17

of this Court. The only issue that they have raised that

would perhaps come under that rule is the Knyland

reservation issue, which, as we have seen, arose only

because the Court of Appeals mistakenly believed that

it had some application to this ease. While the issue of

how an England reservation must be effeeted might be

a proper topic for the Court to consider, this is ob-

viously not the case for such consideration.

13

Respondent requests that this Court deny the

instant Petition.

Respectfully submitted,

Puinie C. Kimparyp

200 Kennedy Avenue

Louisville, Ky. 40206

(502) 587-7086, 634-9126

Counsel for Respondent,

Robert Barnes

14

CERTIFICATE OF SERVICE

I hereby certify that I have served three copies of this

Brief upon Nathan Goldman, Esq., Assistant Attorney

General, Capitol Bldg., Frankfort, Ky. 40601, attorney for

Petitioners, by mailing the same to him upon this the P & nd

day of November, 1988.

Pritie C. KimBai

831 East Madison Street

Louisville, Ky. 40204

502) 587-7086. 634-9126

Counsel for Respondent,

Rohe rf Barne Ss