Opposition — Hostrop v. Board of Junior College District No. 515

Supreme Court, U. &

2 Eere se

APR 2 1916

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975.

HTCHAEL RODAK, JR. CLERK

No. 75-917

RICHARD W. HOSTROP,

Petitioner,

VS.

BOARD OF JUNIOR COLLEGE DISTRICT NO. 515,

COUNTIES OF COOK AND WILL AND STATE OF

ILLINOIS, a BODY POLITIC AND CORPORATE, and JAMES

GRIFFITH, ANTHONY HANNAGAN, DORIS HILL,

WILLIAM JACKSON, LESTER KLOSS, SHIRLEY MEL-

LECKER and THOMAS PORTER, INDIVIDUALLY AND AS

MEMBERS OF THE BOARD OF TRUSTEES,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

ANTHONY SCARIANO,

1450 Aberdeen,

Chicago Heights, Illinois 60411,

Attorney for Respondents.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975.

No. 75-917

RICHARD W. HOSTROP,

Petitioner,

VS.

BOARD OF JUNIOR COLLEGE DISTRICT NO. 515,

COUNTIES OF COOK AND WILL AND STATE OF

ILLINOIS, A BODY POLITIC AND CORPORATE, and JAMES

GRIFFITH, ANTHONY HANNAGAN, DORIS HILL,

WILLIAM JACKSON, LESTER KLOSS, SHIRLEY MEL-

LECKER and THOMAS PORTER, INDIVIDUALLY AND AS

MEMBERS OF THE BOARD OF TRUSTEES,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

To the Justices of the Supreme Court of the United States:

Respondents pray that the requested Writ of Certiorari not

issue to review the judgment of the United States Court of

Appeals for the Seventh Circuit entered on September 24, 1975.

OPINIONS BELOW.

The Opinion of the United States Court of Appeals for the

Seventh Circuit is reported officially at 523 F. 2d 569 (1975),

and is reproduced as Appendix “A” to the Petition. The opinion

of the District Court is reported officially at 399 F. Supp. 609

(1974), and is reproduced as Appendix “B” to the Petition.

When this cause was first filed, the District Court dismissed

the Complaint for failure to state a claim upon which relief

can be granted. That opinion was reported officially at 337 F.

Supp. 977 (1972) and is reproduced as Appenaix “C” to the

Petition. That decision was reversed by the United States Court

of Appeals for the Seventh Circuit in a previous opinion,

reported officially at 471 F. 2d 488 (1972). That opinion is

also reproduced as Appendix “D” to the Petition.

JURISDICTION.

The jurisdictional requisites are adequately set forth in the

Petition for Writ of Certiorari.

QUESTIONS PRESENTED.

1. Whether an employee of a State agency whose consti-

tutional rights to due process have been violated by refusing

to grant him a hearing may be foreclosed from recovering dam-

ages based upon the salary due him under a written employment

contract.

2. Whether a State employee’s rights to freedom of speech

may be denied to him under the guise that it is the manner in

which the speech is communicated, rather than the content,

which is being punished.

REASONS FOR REFUSING THE WRIT.

I.

The Court of Appeals’ decision concerning the standards by

which Petitioner’s damages should be measured because of his

deprivation of property without proper due process of law is in

substantial conformity with other Federal Appellate and Federal

District Court decisions. Where a petitioner has successfully

demonstrated a denial of constitutionally protected rights, he

is at least entitled to damages for deprivation of the right itself

and compensation for any personal or pecuniary damage

wrought by the deprivation. Patton v. LaPrade, 524 F. 2d 862,

871-872 (3rd Cir. 1975); Rolfe v. County Board of Education,

391 F. 2d 77, 81 (6th Cir. 1968); Donovan v. Reinhold, 433 F.

2d 738, 743 (9th Cir. 1970). If the deprivation were mali-

ciously or willfully motivated the petitioner will, in addition, be

entitled to punitive damages. Patton v. LaPrade, 524 F. 2d 863,

872 (3rd Cir. 1975).

Pecuniary damages for denial or loss of employment resulting

from such a deprivation of constitutional rights entitle a peti-

tioner to such compensation as he would have received had

he not been deprived of his protected right. Arkansas Educa-

tion Association Vv. Board of Education, 446 F. 2d 763, 770

(8th Cir. 1971); Rolfe v. County Board of Education, 391

F, 2d 77, 81 (6th Cir. 1968); Wright v. Southeast Alabama Gas

District, 376 F. Supp. 780, 782 (M. D. Ala. 1974). Proof of an

unlawful deprivation does not give an automatic right to com-

pensation equal to the pay petitioner would have received had

he held the job. “Wages sought must be properly owing to

Plaintiff. This requires positive proof that Plaintiff was ordinarily

entitled to the wages in question and being without fault, would

have received them in the ordinary course of things but for

4

the inequitable conduct of the party from whom the wages are

demanded.” Jinks v. Mays, 464 F. 2d 1223, 1226 (Sth Cir.

1972) [Emphasis supplied].

Similar issues regarding compensatory damages for loss or

denial of employment have been raised in litigation concerning

Title VII violations. The decisions in these cases are in accord

with decisions concerning constitutional deprivations. Parham

Vv. Southwestern Bell Telephone Co., 433 F. 2d 421, 428 (8th

Cir. 1970); Bing v. Roadway Express Inc., 485 F. 2d 441, 450-

452 (Sth Cir. 1973).

In awarding damages, the Court of Appeals in the instant

cause claimed that Petitioner would be entitled to recompense for

the deprivation of his constitutional right to a hearing, 523 F. 2d

569, 579, and any personal injury (such as possible emotional

distiess) which resulted therefrom. 523 F. 2d 569, 580. The

Court refused to award Dr. Hostrop damages commensurate to

the amount he would have received had he completed his

employment through the term of this contract, largely because

Respondents had demonstrated that he had been afforded a fair

hearing he would have been justifiably terminated for cause.

523 F. 2d 569, 579.

The Petitioner asserts that his being denied contract wages as

compensatory damages for deprivation of his right to a hearing

strips him of the opportunity for effective redress of his rights,

and would set a precedent which, in similar situations, would

allow a Board of Education to deprive an employee of a

constitutionally mandated hearing with impunity. Decisions of

this Court and numerous Federal Appellate Courts have con-

sistently held that a plaintiff can obtain effective redress for

deprivation of constitutional rights by an award of damages sole-

ly for deprivation of the right itself. Nixon v. Herndon, 273 U. S.

536 (1927); Sexton v. Gelbs, 327 F. Supp. 134 (N. D. Tex.

1970) affd 446 F. 2d 904 (Sth Cir. 1971) cert. denied, 404

U. S. 1062 (1972). Moreover, were a defendant to deny a

5

piaintiff's clearly defined constitutional rights, plaintiff might in

addition recover punitive damages. Fisher v. Volz, 496 F. 2d

333, 346-48 (3rd Cir. 1974); Palmer v. Hail, 380 F. Supp. 120,

135 (M. D. Ala. 1974).

The Petitioner states that because the operation of the exclu-

sionary rule and damage relief for violation of fourth amend-

ment rights are independent of the criminal guilt or innocence

of the individual attempting to vindicate his constitutional rights,

he is automatically entitled to damages for violation of his right

to a hearing based on his contract damages. Beside grossly mis-

taking the workings of the exclusionary rule, such a position is

devoid of any logic.

The primary purpose of the exclusionary rule is to deter law

enforcement and prosecution officers from violating a citizen’s

fourth amendment rights. When government agents obtain evi-

dence in willful or negligent disregard of an individual’s right

to be free from unreasonable searches and seizures, such evi-

dence is therefor excluded. U. S. v. Peltier, ........... & waa :

95 S. Ct. 2313, 2317-2318. The logical counterpart in the

instant cause would be the opportunity to recover damages

whose assessment would serve as a deterrent against willful dis-

regard of Hostrop’s constitutional rights. Such a potential

remedy exists in the form of punitive damages. Patton v.

LaPrade, 524 F. 2d 862, 872 (3rd Cir. 1975). The Court

of Appeals found that Respondents had acted in good faith when

they discharged the Petitioner without affording him necessary

procedural safeguards. 523 F. 2d 569, 578. Thus, punitive dam-

ages should not have been and were not assessed.

Petitioner’s second example regarding a fourth amendment

damage action would for the sake of logical consistency only

require in this cause, that he be allowed to recover damage for

violation of his right to procedural due process, regardless of

the outcome of his contract claim. The Court of Appeals has

held that he is entitled to damages for violation of that right

6

although he was unsuccessful in proving damage to his

contractual rights.

Finally, Dr. Hostrop requests that this Court adopt the deci-

sion in Horton v. Orange County Board of Education, 464 F.

2d 536 (4th Cir. 1972). The holding of this decision regarding

damages contravenes every other Federal Appellate Court deci-

sion which is apposite. Furthermore, it affords him a windfall

because had he been offered a hearing before an unbiased tri-

bunal, he would have been terminated. Taxpayers should not

be obligated to pay contract wages to an individual who mate-

rially breached that contract because its public agent blundered.

in good faith, by failing to accord him a hearing required by

the Constitution.

II.

The Petitioner's second Question Presented for Review

clearly does not establish an appropriate reason for granting

his Petition. The Petitioner hus failed to indicate in any

fashion how the opinion of the Court of Appeals either directly

conflicts with any applicable decisions of this Court, or directly

conflicts with any decisions of the same or other Courts of

Appeals. Very simply, Dr. Hostrop attempts instead, in Argu-

ment II of his Petition. to re-argue the merits of his case

before this, the highest of tribunals, after having failed at trial

and on appeal. Faced with fatal findings of fact at the two

lower courts, the Petitioner would now have this Court con-

sider his first amendment claim solely as a matter of legal

absolutes, in vacuo, totally devoid of the factual realities sur-

rounding his employment relationship with the Respondent

Board of Trustees, Indeed, the state of facts adduced at trial

is so antithetical to his first amendment claim that the Petitioner

chooses to act as if the record below does not exist, and,

incredibly, states in his Petition that:

“Neither the District Court nor the Court of Appeals has

pointed to any facts in this record which would support

a finding that the publication of this memorandum, re-

7

gardless of the manner in which it either was or was not

disseminated, materially or substantially interfered with the

requirements of appropriate discipline in the operation of

the school”.’

Having thus disposed of troublesome facts, the Petitioner

states as the legal basis for his first amendment claim herein, and

ostensibly as the reason why Certiorari should be granted, the

postulate that “First Amendment rights may not be denied under

the guise that it is the manner of expression rather than the

content which is being punished.” Such a characterization of the

freedom of speech issue clearly assumes too much, for it im-

plicitly assumes that there exists a protectible first amendment

right to begin with. But the Petitioner cannot possibly mean to

say that a state employee’s right to freedom of speech is absolute,

and that the content of his expression may never be curtailed

under any circumstances, for it is the most b: _—of constitutional

precepts that, upon certain factual showing, a State employer's

interest in curtailing an expression of opinion may, on balance,

outweigh the State employee’s right to express that opinion.

Pickering v. Board of Education, 391 U. S. 563, 568 (1968).

The object of curtailment, and cause for discharge, may indeed

be the very content or substance of that expression. Pickering v.

Board of Education, 391 U. S. 563, 570 n. 3 (1968); Arnett

v. Kennedy, 416 U. S. 134, 160-162 (1974).

Therefore, even if we were to assume only for arguments sake

that the Petitioner's legal postulate is correct and that the first

amendment’s protection of the manner of expression is always

qualitatively co-existent with that protection to be afforded to

1, If, as Dr. Hostrop incorrectly suggests in his Petition, it is

difficult to pinpoint in the record the deleterious effect on the College's

ration which may be specifically attributed to the Ethnic Studies

emo, the difficulty is wrought by the fact of Petitioner’s pervasive

incompetence and insubordination, a factor which makes it impossible

to allocate a quantum of adverse impact to any single act of in-

the substance of expression,’ the Petitioner can take no solace

whatsoever in the mere reiteration of that premise, as both the

manner and content of expression are proper subjects of regula-

tion in special circumstances. The special circumstances sur-

rounding Dr. Hostrop’s employment by the Board of Trustees

have not escaped either the District Court or Court of Appeals

below, namely, the close working relationship between a Board

of Trustees and its chief executive officer, and the collapse of

that relationship due to the insubordination and incompetence

of the chief executive officer, all of which adversely affects the

normal administration of the governmental entity.

The District Court found, and the Court of Appeals con-

curred specially in the finding, that certain conduct of the

Petitioner, including the timing and concealment of the Ethnic

Studies Memo, “substantially impeded the Board’s normal

functions, critically impaired the personal working relation-

ship between the parties, and completely destroyed the Board’s

confidence in the Petitioner’s loyalty and abilities.” In its

first Hostrop opinion, the Court of Appeals held that Peti-

tioner’s complaint, on its face, stated a cause of action for

denial of first amendment rights. However, in contemplation

of the upcoming trial on remand, the Court of Appeals cuon-

ceded that:

“[{djefendants may demonstrate at trial that Dr. Hostrop’s

circulation of the memorandum was evidence of insubor-

dination and actually produced the harmful effects which

the Pickering decision indicated may be grounds for dis-

charge. Such evidence could justify the discharge.” 471

F. 2d 488, 493 n. 14 (7th Cir., 1972).

Such evidence was found at trial, and the timing and conceal-

ment of the Ethnic Studies Memo was held by both lower courts

2. Indeed, the assumption is fundamentally incorrect. Thou

speech itself may be under ‘ne first amendment, the manner of its

exercise or its collateral aspects may fall beyond the scope of the

amendment. Grayned v. City of Rockford, 408 U. S. 104, 116-118

(1972); Brennan, The Supreme Court and the Meiklejohn Interpre-

tation oj the First Amendment, 79 Harvard Law Review 1, 5 (1965).

9

to be a permissible cause for discharge in light of the resultant

deterioration of the necessary trust and confidence between the

parties. The Petitioner and Respondents herein have both cited

the Pickering case as favorable and, but for the ugly fact of

the record below, Petitioner’s citations of Pickering might be

persuasive. However, the Petitioner may not now seek certiorari

to have this Court review evidence and discuss specific facts.

United States v. Johnson, 268 U. S. 220, 227. The instant

Petition has not established a single reason why this Court

should exercise its jurisdiction. Indeed, the very cases cited by

the Petitioner require the result arrived at by the Court of

Appeals below.

CONCLUSION.

For the foregoing reasons, the Petition for a Writ of Certiorari

should be denied or, in the alternative, such Petition for a Writ

of Certiorari should be granted and, as to the issues presented

herein, the Opinion of the Court of Appeals be summarily

affirmed on the basis of the Opinion of that Court.

Respectfully submitted,

ANTHONY SCARIAND,

1450 Aberdeen,

Chicago Heights, Illinois 60411,

Attorney for Respondents.