Opposition Brief — Redgrave v. Boston Symphony Orchestra, Inc.

No. 88-912 JOSEPH F. SPANIOL, JR,

In the

Supreme Court of the United States

OcTOBER TERM, 1988

VANESSA REDGRAVE,

PETITIONER,

Vv.

BOSTON SYMPHONY ORCHESTRA, INC.,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Brief in Opposition to Petition for Writ of Certiorari

Of Counsel: Rosert E. SULLIVAN*

JouHN T. HARDING, Jr. HuGu G. STEVENSON

Ze_Le & LARSON CASSANDRA WARSHOWSKY

Ill University Office Park PALMER & DODGE

95 Sawyer Road One Beacon Street -

Waltham, Massachusetts 02154 Boston, Massachusetts 02108

(617) 891-7020 (617) 573-0100

Counsel for Respondent

*Counsel of Record

December 30, 1988

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

“Fr

Y~

COUNTERSTATEMENT OF QUESTION PRESENTED

Whether the First Circuit Court of Appeals, sitting in diver-

sity, properly relied on two state statutory grounds and a state

constitutional ground in affirming judgment against petitioner’s

civil claim under a Massachusetts statute, Mass. Gen. L.

ch. 12, §§ 11H - 111 (1986).

SS

RULE 28.1 LISTING

Respondent Boston Symphony Orchestra, Inc. has no parent

companies, subsidiaries, or affiliates to list pursuant to Sup.

Ct. R. 28.1.

Table of Contents ill

Counterstatement of Question Presented i

Rule 28.1 Listing il

Table of Authorities ili

Counterstatement of the Case 2

Reasons for Denying the Writ 6

I. Petitioner Presents No Substantial Federal Question 6

A. The Holding Below Rested on Three State Law

Grounds 6

B. The Court Below Properly Considered State

Court Responses to Certified Questions in Con-

struing State Law 8

C. Even the Federal Issue Not Reached Below

Would Be Inappropriate For Review 12

II. This Court Should Not Grant Certiorari to Review

the First Circuit’s Reading of Massachusetts Law 13

Conclusion 15

Table of Authorities

CASES

Angel v. Bullington, 330 U.S. 183 (1947) 11

Baird v. Attorney General, 371 Mass. 741, 360 N.E.2d

288 (1977) 10n

Batchelder v. Allied Stores Corp., 393 Mass. 819, 473

N.E.2d 1128 (1985) 3, Sn

Batchelder v. Allied Stores Int'l, Inc., 388 Mass. 83,

445 N.E.2d 590 (1983) 12n

Bernhardt v. Polygraphic Co. of America, 350 U.S.

198 (1956) 10

iV TABLE OF AUTHORITIES CITED

Butner v. United States, 440 U.S. 48 (1979) 14

Cabot Corp. v. Baddour, 394 Mass. 720, 477 N.E.2d

399 (1985) 11

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

283 (1982) 11, 13

Colonial Park Country Club v. Joan of Arc, 746 F.2d

1425 (10th Cir. 1984) 10

Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d

548 (1985) 12n

Conway v. Electro Switch Corp. , 825 F.2d 593 (1st Cir.

1987) 15n

Davis v. Sears, Roebuck and Co., 708 F.2d 862 (Ist

Cir. 1983) 15n

Domegan v. Fair, 859 F.2d 1059 (ist Cir. 1988) 14n, 15n

Doty v. Sewall, 784 F.2d 1 (ist Cir. 1986) 15n

Elwood v. Pina, 815 F.2d 173 (ist Cir. 1987) 15n

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) 9, 10

Grubba v. Bay State Abrasives, Div. of Dresser Indus..,

Inc., 803 F.2d 746 (ist Cir. 1986) 15n

Haring v. Prosise, 462 U.S. 306 (1983) 13

Jackson v. Liquid Carbonic Corp., No. 87-2073, slip

op. (ist Cir. Dec. 1, 1988) [available at 1988 U.S.

App. LEXIS 16115] 14n

Lehman Bros. v. Schein, 416 U.S. 386 (1974) 9

MacGregor v. State Mutual Life Assurance Co., 315

U.S. 280 (1942) 10n

Michigan v. Long, 463 U.S. 1032 (1983) 8,9, 10, 11

Mills v. Rogers, 457 U.S. 291 (1982) 11

Nolan v. Transocean Air Lines, 365 U.S. 293 (1961) 9

Palmer v. Hoffman, 318 U.S. 109 (1943) 14

Propper v. Clark, 337 U.S. 472 (1949) 14

TABLE OF AUTHORITIES CITED Vv

PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980) 12n

Redgrave v. Boston Symphony Orchestra, Inc., 855

F.2d 888 (ist Cir. 1988) (en banc) 1, 2, 6, 7, 8 et seq.

Redgrave v. Boston Symphony Orchestra, Inc., 399

Mass. 93, 502 N.E.2d 1375 (1987) G,2s'453

Sutter v. Pitts, 639 F.2d 842 (1st Cir. 1981) 15n

The Tungus v. Skovgaard, 358 U.S. 588 (1959) 4

West v. American Telephone and Telegraph Co., 311

U.S. 223 (1940) 9

STATUTES AND RULES

Constitutions and Statutes:

U.S. Const. amend. I 12n, 13

Mass. Const. pt. 1, art. 16 8, 11, 12n

Massachusetts Civil Rights Act, Mass. Gen. L. ch.

12, $§ 11H - 111 (1986) passim

28 U.S.C. § 1332(a) (1982) 3

42 U.S.C. § 1983 (1982) 3

Rules:

Sup. Ct. R. 17 14

Former Sup. Ct. R. 19(1)(b), 398 U.S. 1011, 1030-

31 (1970) 14

S.J.C. Rule 1:03 12

No. 88-912

In the

Supreme Court of the United States

OcTOBER TERM, 1988

VANESSA REDGRAVE,

PETITIONER,

V.

BOSTON SYMPHONY ORCHESTRA, INC.,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Brief In Opposition To Petition For Writ Of Certiorari

The respondent, Boston Symphony Orchestra, Inc. (BSO),

respectfully requests that this Court deny the petition for writ

of certiorari seeking review of the First Circuit Court of Ap-

peals’ opinion in this case. In that opinion, reported at 855

F.2d 888 (ist Cir. 1988) (en banc) (Coffin, J.) and set forth

at pages 1a-67a of petitioner’s appendix, the Court of Appeals

held, “in light of [its] understanding of state law, that the

2

district court correctly entered judgment for the BSO” on the

state statutory claim petitioner seeks to pursue before this

Court. /d. at 912, Pet. A. 43a.'

COUNTERSTATEMENT OF THE CASE

Petitioner Redgrave, an actress, sued the BSO for cancelling

a series of concerts that she had been hired to narrate in Boston

and New York. Soon after petitioner’s engagement the BSO

began receiving dozens of angry and abusive calls protesting

petitioner’s support of the Palestine Liberation Organization.

One caller stated that there would be “bloodshed and violence”

at Boston’s Symphony Hall if Redgrave appeared. C.A. App.

1386a, 1600a. Other callers threatened “trouble,” and some

stated that Redgrave’s engagement would “haunt” the Sym-

phony, that she “should perish,” and that the Symphony would

“mourn.” C.A. App. 1383a-1390a, 1674a. The people receiv-

ing these calls were “scared” and “shaken.” C.A. App. 1599a-

1601la, 1659a, 1673a.

BSO decision makers consulted with police authorities and

other people knowledgeable about the threatened disruptions.

They were told that Redgrave’s appearance at New York’s

Carnegie Hall might cause a riot, C.A. App. 593a-596a, that

security measures at Carnegie Hall had not prevented disrup-

tions in the past, C.A. App. 611a-613a, and that no amount

of security precautions could prevent the acts expected to dis-

rupt the concerts at Boston’s Symphony Hall. C.A. App.

1739a-1747a. Redgrave’s own agent cautioned her that “some-

‘References to “ Pet. A __” are to the appendix to the petition for certiorari.

References to “C.A. App. _” are to the joint appendix filed with the Court

of Appeals.

ee

3

thing might happen to her.” C.A. App. 1874a. The BSO de-

cided to cancel the concert series and offered all the guest

artists, including petitioner, their full performance fees. C.A.

App. 1515a-1517a.

Petitioner refused her fee and sued in federal court under

several state and federal theories, most of which were dismissed

as meritless before trial. C.A. App. 2a. Remaining for trial

were two state law claims, with jurisdiction resting on diversity

of citizenship. 28 U.S.C. § 1332(a) (1982). Petitioner and

another’ sued for breach of contract, and petitioner alone sued

under a state statute known as the Massachusetts Civil Rights

Act (MCRA), Mass. Gen. L. ch. 12, §§ 11H - 111 (1986).

Redgrave’s MCRA claim — the subject of this petition —

was that the BSO was liable under the Massachusetts statute

for allegedly interfering, “by threats, intimidation or coercion,”

with her exercise of free speech rights. The MCRA creates a

private cause of action for “[a]ny person whose exercise or

enjoyment of rights secured by the constitution or laws of the

United States, or of rights secured by the constitution or laws

of the commonwealth, has been interfered with . . . .” Mass.

Gen. L. ch. 12, § 111. A person may be liable for inter-

ference “by threats, intimidation or coercion” with such rights,

“whether or not acting under color of law.” Jd. § 11H. The

State statute thus “extend[s] beyond the limits of its Federal

counterpart,” 42 U.S.C. § 1983, “by incorporating private

action within its bounds.” Batchelder v. Allied Stores Corp.,

393 Mass. 819, 822, 473 N.E.2d 1128, 1131 (1985).

The district court (Keeton, J.) and a jury sitting in an advisory

capacity both concluded that the BSO did not cancel the con-

certs because of any disagreement with petitioner’s political

views. Rather, the district court specifically found that the

BSO decision makers cancelled the concerts because they were

? Vanessa Redgrave Enterprises, Ltd.

“4

concerned about potential disruptions that could jeopardize the

artistic integrity of the performance and the physical safety of

the performers and audience. Pet. A. 182a.’ The district court

concluded that the BSO could not in such circumstances be

held liable under the MCRA, and accordingly entered judgment

for the BSO.

Petitioner appealed, arguing that the district court should

have read the MCRA to impose liability on the BSO, even

though it cancelled the concerts for reasons of physical safety

and artistic integrity, because the cancellations ultimately re-

sulted from protests over petitioner’s political views. The First -

Circuit heard argument, and then on its own motion certified

two questions on the MCRA to the Massachusetts Supreme

Judicial Court (SJC). Pet. A. 93a-94a.*

The Supreme Judicial Court answered the specific questions

certified, and also provided explicit advice on “serious issues

which are not addressed in the questions but which are

suggested by the record of the case.” Redgrave v. Boston

Symphony Orchestra, Inc., 399 Mass. 93, 97, 502 N.E.2d

1375, 1377 (1987), Pet. A. 112a (plurality opinion). After

hearing argument from the parties and considering numerous

amicus submissions,* the SJC pointed out state law limits to

the MCRA resulting from this case’s unusual fact situation:

‘Petitioner has never challenged the sufficiency of the evidence supporting

these findings, notwithstanding her efforts to recast the trial record before this

Court. Petition at 5-9.

‘First, the Court of Appeals asked whether a defendant could be held liable

under the MCRA “if the defendant had no personal desire to interfere with the

rights of that person but acquiesced to pressure from third parties.” Pet. A.

93a. Second, the Court of Appeals asked if it would be a defense under the

MCRA “for the defendant to show that its actions were independently motivated

by additional concerns,” such as economic loss or physical safety. Pet. A. 94a.

*The Attorney General of Massachusetts, the American Jewish Congress,

the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Assoct-

ation and the Civil Liberties Union of Massachusetts submitted amicus briefs

to the SJC.

5

the BSO was itself engaged in speech protected by the MCRA,

and “was itself a victim of violations of [the MCRA] by those

persons who put pressure on the BSO to cancel” its own concert

series. Id.

The SJC justices, while writing three separate opinions on

the narrow questions certified, all agreed that the atypical

nature of this case could protect the BSO from MCRA liability.

The justices forming the plurality on the certified questions

acknowledged that, as a matter of statutory construction, “it

can be argued . . . that it was not within the legislative intent”

to punish a defendant under the MCRA simply for deciding

“not to speak (i.e., perform).” 399 Mass. at 97, 502 N.E.2d

at 1377, Pet. A. 112a-113a. The dissent similarly doubted that

“[mJere cancellation of the performances” could subject the

BSO to liability under the statute. Jd. at 110, 502 N.E.2d at

1385, Pet. A. 126a. The concurrence added that it was “unable

to think of any theory under which . . . statutory liability may

properly be imposed on the BSO in the face of its State con-

stitutional right to determine what artistic performances it will

or will not perform.” /d. at 102, 502 N.E.2d at 1380, Pet. A.

118a. Having thus explicated the MCRA’s reach in this atypical

case, the SJC answered the certified questions “as they [were]

worded,” namely “as addressed to a typical [MCRA] action”

that did not involve a defendant itself engaged in speech. /d. at

97, 502 N.E.2d at 1377, Pet. A. 113a (emphasis added).°

A divided panel of the First Circuit held in favor of petitioner.

Pet. A. 72a-108a. The First Circuit en banc vacated that deci-

sion, and affirmed the district court’s judgment on the MCRA

claim, based on the SJC’s opinions as to the reach of that state

Statute. Petitioner then moved without success to certify addi-

tional state law questions to the SJC. Pet. A. 70a-7 1a.

*The “typical” MCRA action seeks to redress racial violence by private

parties. It was “‘serious problem[s] of racial harassment’” that prompted

passage of the Act. Batchelder, 393 Mass. at 821, 473 N.E.2d at 1130 (citation

omitted).

6

REASONS FOR DENYING THE WRIT

The supreme Court should not grant certiorari to reconsider

the First Circuit’s reading of Massachusetts law, a reading

even petitioner has called “reasonable.” Petitioner would have

this Court reverse the Court of Appeals on each of three state

law grounds for decision, in order to decide a federal constitu-

tional defense that the First Circuit en banc did not reach.

Petitioner has not explained why this Court, contrary to its

usual practice, should grant certiorari to venture opinions on

State statutory and state constitutional issues that Massachusetts

courts could repudiate tomorrow. Moreover, petitioner asks

this Court to reach the undecided federal constitutional issue

without any showing that it has arisen before or since in Mas-

sachusetts. Nor has petitioner shown that this federal issue

could possibly arise under the statutes of any other state. Su-

preme Court review of such a case is iiiappropriate.

I. PETITIONER PRESENTS NO

SUBSTANTIAL FEDERAL QUESTION

A. The Holding Below Rested On Three State Law Grounds.

Petitioner seeks to manufacture for review a federal “hold-

ing” that does not exist. Petitioner asks this Court to review

“(t]he ‘holding’ below, that there is an ‘artistic integrity’ con-

stitutional defense to MCRA liability.” Petition at 27. The

Court of Appeals, however, “decline[d] to reach the federal

constitutional issues.” 855 F.2d at 911, Pet. A. 43a (emphasis

added). Instead, the Court of Appeals held for the BSO based

on state law: “we hold, in light of our urderstanding of state

law, that the district court correctly entered judgment for the

7

BSO on Redgrave’s MCRA claim.” /d. at 912, Pet. A. 43a

(emphasis added). This holding rested explicitly on two state

Statutory grounds and on the state constitution.

Petitioner simply disregards the First Circuit’s conclusion

that the state statute on which her claim rests “does not in the

first instance impose liability for refusing to perform.” 855

F.2d at 909, Pet. A. 38a. First, the Court of Appeals noted

the SJC plurality’s suggestion of the observation that “ ‘it was

not within the legislative intent that anyone should be punished

under [the MCRA] for exercising the constitutional right not

to speak (i.e., perform).’” /d. at 907, Pet. A. 34a (quoting

399 Mass. at 97, 502 N.E.2d at 1377) (emphasis added). The

Court of Appeals noted that the SJC dissent raised much the

same point, indicating that the BSO would not be liable under

the MCRA if it “intended ‘only to exercise its constitutional

right not to present an inartistic performance.’” /d. at 909,

Pet. A. 38a (quoting 399 Mass. at 103, 502 N.E.2d at 1381).

“We have no reason to think,” the First Circuit concluded,

“that the Massachusetts Legislature enacted the MCRA in an

attempt to have its courts, at the insistence of private plaintiffs,

oversee the editorial judgments of newspapers, the speech-re-

lated activities of private universities, or the aesthetic judg-

ments of artists.” Jd. at 906, Pet. A. 33a. Petitioner offers no

reason why this Court should think otherwise.

The Court of Appeals also relied on a second state statutory

ground for its decision. The Court found no indication that

any SJC justice would dispute Justice O’Connor’s observation,

made as an aside to his dissent on the certified questions, that

the “‘[mJere cancellation’” of concerts “*would not appear to

convey the message that the BSO intended to take any future

action’” against petitioner. 855 F.2d at 908, Pet. A. 37a (quot-

ing 399 Mass. at 110, 502 N.E.2d at 1385). The First Circuit,

like Justice O’Connor, therefore could not find the interference

“ese

8

“by threats, intimidation or coercion’” with petitioner’s rights

required for MCRA liability. /d. The First Circuit concluded

that the SJC would follow this reasoning and “interpret the

statute so as to find that cancellation of a performance could

not be the basis for MCRA liability.” 855 F.2d at 909, Pet.

A. 39a. ;

The Court of Appeals was “equally confident that a majority,

if not all, of the [SJC] justices, would agree with the concur-

rence that a state constitutional defense also bars liability.”

855 F.2d at 910, Pet. A. 40a (emphasis added). As the Court

of Appeals observed, the SJC’s plurality opinion acknowledged

constitutional doubts, and the concurrence addressed explicitly

the BSO’s “constitutional right to free speech under art. 16 of

the Massachusetts Declaration of Rights.” 399 Mass. at 102,

502 N.E.2d at 1380, Pet. A. 117a (Wilkins, J., concurring).

The concurrence stated it was “unable to think of any theory

under which . . . statutory liability may properly be imposed

on the BSO in the face of its State constitutional right to

determine what artistic performances it will or will not per-

form.” /d., Pet. A. 118a (emphasis added). The First Circuit,

having thus found that petitioner had no state law claim to

begin with, concluded it was “unnecessary and improper” to

reach the BSO’s federal constitutional defense. 855 F.2d at

909, Pet. A. 38a.

B. The Court Below Properly Considered State Court

Responses to Certified Questions in Construing State Law.

Petitioner fails to convert the First Circuit's reading of state

law into anything more than a garden-variety diversity decision

by suggesting that the Court of Appeals “violated” Michigan

v. Long, 463 U.S. 1032 (1983). This Court formulated the

Long doctrine — requiring a “plain statement” of a state law

9

basis for decision to preclude review of a federal question —

for direct review of state court decisions. Petitioner can cite

no decision that reads Long to require federal courts interpreting

state law sources in diversity to pass over possible state grounds

for decision. Nor is there any reason it should.

The doctrine that governs federal court interpretation of state

law is the Erie’ doctrine, not the Long doctrine. The Erie line

of cases, which petitioner tellingly ignores, long ago estab-

lished that federal courts have the power — indeed, the duty

— “in every case to ascertain from all the available data what

the state law is . . . .” West v. American Telephone and

Telegraph Co., 311 U.S. 223, 237 (1940) (emphasis added).

All the available data includes the SJC’s “mere dicta,” on

which, petitioner complains, the Court of Appeals relied. Peti-

tion at 21. Cf. Nolan v. Transocean Air Lines, 365 U.S. 293,

295-96 (1961) (per curiam) (remanding for consideration of

State supreme court opinion’s “considered dictum” on issue).

The contrary rule petitioner suggests would require a federal

court to ignore advice on state law sought from — and given

by — the state’s highest court.

Here the First Circuit considered “all the available data,”

as required by the Erie doctrine, and indeed went further. On

its own motion it certified questions of state law to the SJC

and then carefully considered the responses. That the First

Circuit could in its “sound discretion” certify certain issues to

the state court, Lehman Bros. v. Schein, 416 U.S. 386, 390-91

(1974), does not give petitioner the right to insist that the

federal court must then somehow extract from the state court

definitive answers to every applicable state law question.*

’ Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

* Petitioner complains that the First Circuit went beyond the “yes” or “no”

answers to the certified questions and considered all the comments that the

SJC offered, both on the state constitution and on the scope of the MCRA.

E.g., Petition at 22 n.18. But that was exactly what the SJC intended. The SJC

_

10

Petitioner, after all, was the party who chose to bring her state

law claims in federal rather than state court. Cf. Colonial Park

Country Club v. Joan of Arc, 746 F.2d 1425, 1429 (10th Cir.

1984) (appellant “chose to file its case in federal court, and

hence is in a somewhat awkward position to now claim that

the federal judge misunderstood [state] law’’).

The Long doctrine, which petitioner seeks to apply here,

rests on the fact that in cases of direct review state courts have

entire cases squarely before them. In such cases the state courts

can protect and develop state jurisprudence merely by stating

plainly whether they are deciding state or federal law. Long,

463 U.S. at 1041. In diversity cases, on the other hand, state

courts do not have the cases before them; rather, federal courts

are predicting what the state courts would do. This is by def-

inition a less exact exercise: “As long as there is diversity

jurisdiction, ‘estimates’ are necessarily often all that federal

courts can make in ascertaining what the state court would

rule to be its law.” Bernhardt v. Polygraphic Co. of America,

Inc., 350 U.S. 198, 209 (1956) (Frankfurter, J., concurring).

Petitioner argues in essence that the Court of Appeals must

proceed to respondent’s federal constitutional defense unless

there is a state court decision directly on point against her on

a State issue. See Petition at 17-24. This proposition collides

with the Erie doctrine. Surely a federal court does not err by

construing a state statute simply because there is no state court

decision on point.* Otherwise a federal court would not be

views certification as a “cooperative decision making process” in which, “even

if not asked, [it] might volunteer unsolicited comments on State law which

could be largely dispositive of the matter before the . . . Court.” Baird v.

Attorney General, 371 Mass. 741, 765, 360 N.E.2d 288, 302 (1977).

°Cf. MacGregor v. State Mutual Life Assurance Co., 315 U.S. 280, 281

(1942) (per curiam) (affirmance of lower federal court's reading of state law

11

acting as “‘only another court of the State,’” Angel v. Bull-

ington, 330 U.S. 183, 187 (1947) (citation omitted), but would

be playing by different rules.

Petitioner’s argument for passing over possible: state law

grounds also conflicts with the Court’s “settled policy [of]

avoid[ing] unnecessary decisions of constitutional issues.”

Mills v. Rogers, 457 U.S. 291, 305 (1982). Thusin City of

Mesquite v. Aladdin’ s Castle, Inc., 455 U.S. 283 (1982), this

Court remanded specifically so that the Court of Appeals could

decide whether the state constitution disposed of the con-

troversy in order to avoid the federal constitutional issue. 455

U.S. at 293-95. The Court’s concern in that case — “that we

may be unnecessarily reaching out to decide a novel constitu-

tional question,” id. at 295 — is equally applicable here.

The SJC’s opinion serves in any event to satisfy the general

interpretive principles set forth in Long. Long requires a clear

statement of an independent and adequate state ground where

“a state court decision fairly appears to rest primarily on federal

law, or to be interwoven with the federal law.” Long, 463

U.S.at 1040. Here the SJC’s opinion addressed state statutory

grounds that could hardly be confused with the federal constitu-

tion. Reliance on the state constitution was also explicit. The

SJC concurrence refers by name to Article 16 of the Massachu-

setts Declaration of Rights. 399 Mass. at 102, 502 N.E.2d at

1380, Pet. A. 117a (Wilkins, J., concurring). Indeed, the SJC

was necessarily discussing the state constitution, since in

answering certified questions it has explicitly limited its role

“to answering certified ‘questions of [the] law of this State.’ ”

Cabot Corp. v. Baddour, 394 Mass. 720, 721, 477 N.E.2d

399, 400 (1985) (SJC declined to consider question of federal

where no decision construing the relevant state law “has been brought to our

attention”).

iii

12

law, quoting S.J.C. Rule 1:03 on certification).'° As even the

dissent below conceded, “had this exact case arisen in the

Massachusetts state courts and proceeded in its present form

to the SJC, the BSO would not have been subjected to liability”

under state law. 855 F.2d at 914, Pet. A. 47a (Bownes, J.,

dissenting).

C. Even The Federal Issue Not Reached Below

Would Be Inappropriate For Review.

Petitioner could pose no federal constitutional issue worthy

of further review even if she could persuade this Court to

second-guess the First Circuit’s reading of state law. Petitioner

would have this Court decide whether the First Amendment

furnishes the BSO with a defense to petitioner's MCRA claim.

This issue was not reached below, and it is inappropriate for

the issue to be decided for the first time by this Court.

Petitioner also makes no showing that the issue could ever

arise again. She cites no other case in which the same issue

has arisen, nor has she pointed to any other state statute that

even arguably could pose the same constitutional issue. To

the contrary, petitioner herself speaks of the MCRA’s “peculiar

genius,” Petition at 4, peculiar in that it allows a “free speech”

Petitioner is wrong to suggest that the SJC simply interprets Article 16 as

coextensive with the federal constitutions’s First Amendment. E.g., Petition

at 13 n.9. To the contrary, the state constitution provides a ground for decision

independent from the federal constitution. On similar facts the SJC has “reached

different results under the State Constitution from those that were reached by

the Supreme Court . . . under the Federal Constitution.” Commonwealth v.

Upton, 394 Mass. 363, 372, 476 N.E.2d 548, 555 (1985). The First Circuit

correctly recognized that one area where the Massachusetts constitution some-

times has broader application is freedom of speech. 855 F.2d at 910-11, Pet.

A. 4la (citing cases). One marked distinction relevant to this case is that

Article 16 — “ [t}he nght of free speech shall not be abridged™ — is not limited

to protection against state action. Compare Batchelder v. Allied Stores Int'l,

Inc., 388 Mass. 83, 445 N.E.2d 590 (1983) (suggesting that Article 16, unlike

the First Amendment. would protect free speech at private shopping mall) with

PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) (First Amendment

provides no such protection).

13

claim without any requirement of state action. Mass. Gen. L.

ch. 12, § 11H. Similarly, the court below acknowledged that

“there are not any federal cases directly, or even closely, on

point in such a strange fact situation and with such an unusual

state statute.” 855 F.2d at 911, Pet. A. 42a (emphasis added).

Nothing suggests that this is now an issue of nationwide impact,

and everything suggests that by deciding the First Amendment

issue the Court might risk giving an entirely advisory opinion.

In short, “[nJo reason for hasty decision of the constitutional

question presented by this case has been advanced.” City of

Mesquite, 455 U.S. at 294."

Il. THIS COURT SHOULD NOT GRANT CERTIORARI

TO REVIEW THE FIRST CIRCUIT’S READING OF

. MASSACHUSETTS LAW

This Court should not exercise its certiorari power to review

a decision based on state law. The First Circuit held that

petitioner’s MCRA claim failed on three distinct state law

grounds. The Supreme Court should adhere to its general prac-

tice of deferring to such readings of state law, both to conserve

its own resources and because the lower federal courts are

better situated to interpret the local law of their respective

circuits.

“[{S]tanding alone, a challenge to state-law determinations

by the Court of Appeals will rarely constitute an appropriate

subject of this Court’s review.” Haring v. Prosise, 462 U.S.

306, 314 n.8 (1983). This Court no longer even lists alleged

'' Petitioner tags on to her petition the argument that the court below violated

“her basic due process right” because it supposedly did not “apply the applicable

law to the facts” after construing the SJC’s answers to the certified questions.

Petition at 24. Petitioner cites not a single case to explain what this “due

process” claim is about. In any event, the First Circuit carefully considered

the factual findings below in reaching its decision. See, e.g., 855 F.2d at

901-02, Pet. A. 24a (section of opinion entitled “The Findings Below”).

alan aeenaenenteianamaaiienll

14

misreadings of state law by Courts of Appeals as a consider-

ation governing review on certiorari. Compare Sup. Ct. R. 17

with former Sup. Ct. R. 19(1)(b), 398 U.S. 1011, 1030-31

(1970).

Even in cases otherwise presenting an issue worthy of re-

view, the Court has deferred to lower federal court interpreta-

tions of state law. Such determinations will not be set aside

“except on a plain showing of error,” Palmer v. Hoffman, 318

U.S. 109, 118 (1943), where the Court of Appeals is “clearly

wrong,” The Tungus v. Skovgaard, 358 U.S. 588, 596 (1959),

and its conclusion is “unreasonable.” Propper v. Clark, 337

U.S. 472, 486-87 (1949). Here petitioner herself conceded

below that the First Circuit's reading of state law was “bona

fide and reasonable ,” based on judgments “upon which reason-

able persons may differ” regarding the meaning of the SJC’s

opinion on the MCRA. See Motion of Plaintiffs-Appellants

For Rehearing and For [A Second] Certification of Issues to

the Massachusetts Supreme Judicial Court at 2, 3. There is

thus no call for further review by this Court.

Moreover, the Court may properly defer to the First Circuit

as the tribunal more experienced in interpreting both the MCRA

and Massachusetts law in general. This Court has often recog-

nized that the courts of appeals, which “deal regularly with

questions of state law” in their respective circuits, “are in a

better position than we to determine how local courts would

dispose of comparable issues.” Butner v. United States, 440

U.S. 48, 58 (1979). The Court is therefore rightly “hesitant

to overrule decisions by federal courts skilled in the law of

particular states.” Propper, 337 U.S. at 486.

Here the state law at issue — Massachusetts law — is by

definition within the First Circuit's ken. Moreover, the First

Circuit has dealt repeatedly with the MCRA." The First Cir-

* See. ¢.@.. Jackson v. Liquid Carbonic Corp., No. 87-2073, slip op. (1st

Cir. Dec. 1, 1988) [available at 1988 U.S. App. LEXIS 16115); Domegan v

15

cuit’s familiarity with the state law at issue thus confirms the

wisdom of deferring to its reading of state law. There is no

reason why this Court should venture interpretations of Mas-

sachusetts law in a case that presents no other issues.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

Of Counsel: ROBERT E. SULLIVAN*

JOHN T. HARDING, JR. HUGH G. STEVENSON

ZELLE & LARSON CASSANDRA WARSHOWSKY

III University Office Park PALMER & DODGE

95 Sawyer Road One Beacon Street

Waltham, Massachusetts 02154 Boston, Massachusetts 02108

(617) 891-7020 (617) 573-0100

Counsel for Respondent

*Counsel of Record

December 30, 1988

Fair, 859 F.2d 1059 (ist Cir. 1988); Conway v. Electro Switch Corp., 825

F.2d 593 (ist Cir. 1987); Elwood v. Pina, 815 F.2d 173 (ist Cir. 1987);

Grubba v. Bay State Abrasives, Div. of Dresser Indus., Inc., 803 F.2d 746

(ist Cir. 1986); Doty v. Sewall, 784 F.2d 1 (ist Cir. 1986); Davis v. Sears,

Roebuck and Co., 708 F.2d 862 (ist Cir. 1983); Sutter v. Pitts, 639 F.2d 842

(Ist Cir. 1981). Indeed, to respondent's knowledge the First Circuit is the only

Court of Appeals that has dealt with the MCRA at all.