# Opposition Brief — McDowell v. Barnes

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0366%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 1007

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0366%3A2. Public record. Not legal advice.