Opposition — DeLuca v. Robertson

No. 78-654.

NOV 15 1978

L RODAK, JR., CLERK

In the

Supreme Court of the United States

Octoser Term, 1978

BEN DeLUCA,

Petitioner,

VS.

HAROLD ROBERTSON, ELDRED SWANSON,

EUGENE ATEN, SR., and MARVIN DANIEL,

Individually and as Aldermen of the City of Franklin,

Respondents.

On Petition for a Writ of Certiorari to the Cireuit

Court of Appeals for the 7th Cireuit

BRIEF FOR RESPONDENTS IN OPPOSITION

RAY T. McCANN

425 Caswell Building

152 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

Phone: 1-414-276-3565

Counsel for Respondents.

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX

PAGE

i anecdevanaen iunwaeceaes 1

nn OE UN ceirseneesienniochicmenenn 2

Why the Writ should be denied 0.0... eee eeeeeee 5)

I. The petitioner failed to make out a prima facie

gg Rec en oe A PS Aerts kage SET ROR. = CSO NE 5)

Il. The action is barred by res judicata ................. 6

III. The petitioner is collaterally estopped from re-

litigating the issues raised in the complaint ........ 7

IV. The petition does not present any important fed-

I I cca cieteateic entre tadipenaGiteeeicsevietcienetanione 8

V. The petitioner should not be afforded standing

to attack Rule 35 of the Circuit Court of Appeals

DW WEG TO WOUNTE CDOT oasis enscs ic cscsecensssnssncectiweeens 9

I oi cacataicanccastencsohsupecarsiecsdnennaiadiveiebanntiionenees 9

CITATIONS

Blankner v. City of Chicago, 504 F.2d 1037 (C.A. 7,

1974), cert, den. 421 U.S. 948, 95 S.Ct. 1678, 44 L.Ed.

2d 101, reh. den, 422 U.S, 1029, 95 S.Ct. 2618, 45

ne, Cdacticcc benicar nla veduiadnidtinewnnens 8

Duffield v. Charleston Area Medical Center Ine., 503

Be Ci a INI Sentenecitirsasthcceeteinniniensennnctbedivninnnne 6

Lloyd A, Fry Roofing Co. v. F. T. C., 371 F.2d 277,

Eis: a. NED -ancubendedsaiuaonbecctccestbacsnnestantnibaniidesienerehamsaes 6

il

PAGE

Lombard v. Board of Edue., 502 F.2d 631 (C.A. 2,

1974), cert. den, 420 U.S, 976, 95 S.Ct. 1400, 43 L.

TO GG srr cccnsennicasiosnaccsenerequenctentacccummeeeeeeea

Mertes v. Mertes, 411 U.S. 961, 93 S.Ct. 2141, 36 L.Ed.

Sn Onn ee

Scoggin v. Sehrunk, 522 F.2d 436 (C.A. 9, 1975), cert.

den. 423 U.S. 1066, 96 S.Ct. 807, 46 L.Ed.2d 657 .......

State ex rel DeLuca v. Common Council, 72 Wis.2d

G73, 3438 N..W. 26 GO (I) ee

State ex rel Wasilewski v. Board of School Directors,

14 Wis.2d 243, 111 N.W.2d 198 (1961) ..............000.....

Thistlethwaite v. City of New York, 497 F.2d 339 (C.A.

2, 1974), cert. den. 419 U.S. 1093, 95 S.Ct. 686, 42

BR GD oevvencteccinensiserssneneee

DD UTR, TI eticccinstrsnnictnene

L2 3 & 8s see ~sasencidetacsiesemnaagaaaaae

Wis. Stats. See. 17.16 —........ ‘cans _<SsinAaitaaaS Ra

Wis. Stats. Sec. 66.77 (1971)

In the

Supreme Court of the United States

Ocroser ‘l'erm, 1978

No. 78-654:

BEN DeLUCA,

Petitioner,

VS.

HAROLD ROBERTSON, ELDRED SWANSON,

EUGENE ATEN, SR., and MARVIN DANIEL,

Individually and as Aldermen of the City of Franklin,

Respondents.

On Petition for a Writ of Certiorari to the Cireuit

Court of Appeals for the 7th Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

QUESTIONS PRESENTED FOR REVIEW

1. In this action under 42 U.S.C. 1983, did the petitioner

make out a prima facie case showing that he had been

denied Due Process at the hearing which resulted in his

discharge for cause from public employment?

2. Should the decision of the Wisconsin Supreme Court

that the petitioner was afforded Due Process of law and

an impartial decisionmaker be given ‘‘full faith and

2

eredit’’ in the federal courts pursuant to the provisions

of 28 U.S.C. 1738?

3. Is the petitioner’s action barred by res judicata?

STATEMENT OF THE CASE

The petitioner served as the Clerk of the City of Frank-

lin from January 16, 1966 until September 5, 1972. City

officials, such as the petitioner, who are appointed by the

Mayor and subject to confirmation by the Common Coun-

cil, ean be removed from office only for cause upon the

affirmative vote of three-fourths of all of the members of

the Commons Council. Wis. Stats. Sec. 17.12(1) (¢)&(d)

Any resident and taxpayer of the city may initiate removal

proceedings. The Common Council is then required to

investigate and hear the charges, but may first require the

complainant to post a bond for costs. Wis. Stats. Sec.

17.16(3)&(4)

On September 5, 1972, the respondents, four of the six

aldermen of the city, introduced a petition to initiate re-

moval proceedings. The Mayor suspended the petitioner

from office pending the outcome of the hearing and ap-

pointed the Common Council as a committee of the whole

to investigate the charges. The respondents, Marvin Daniel,

an attorney, and Harold Robertson, the President of the

Council, assumed the primary responsibility for the inves-

tigation. (Tr. pp. 196-199) On September 25, 1972, the

President of the Common Council filed formal charges

against the petitioner. (Ex. 155, pp. 81-83) These charges

were verified as required by statute. Wis. Stars. Sec.

17.16(3)

The removal hearing was held on November 13, 14 and

15, 1972. Immediately prior to the commencement of the

hearing, the petitioner submitted a written motion to dis-

3

qualify the four respondents on the ground that they had

signed the petition to initiate removal proceedings. The

petitioner also moved to disqualify the respondent, Harold

Robertson, on the additional ground that he had filed the

formal charges. (Ex. 155, pp. 98-99) This motion was

denied.

On January 3, 1973, the Common Council submitted its

Findings of Fact and Conclusions of Law and ordered the

petitioner removed from office. (Ex.5) <All six of the alder-

men initially voted to remove Mr. DeLuea from office, but

Alderman Januszewski abstained from the final vote for

reasons undisclosed by the record. (Tr. pp. 237-239)

The petitioner sought review of his discharge by way

of a common law writ of certiorari in the Circuit Court of

Milwaukee County. In a lengthy 21 page petition, Mr.

DeLuea alleged numerous violations of state law, the Wis-

consin Constitution, and the Constitution of the United

States of America. (Mx. 155, pp. 1-21) On January 21,

1974, the Cireuit Court of Milwaukee County entered an

order quashing the writ. Mr. DeLuca appealed to the

Wisconsin Supreme Court. While that appeal was pend-

ing, Mr. DeLuca commenced this action. On June 2, 1976,

the Wisconsin Supreme Court affirmed the order quashing

the writ of certiorari. State ex rel. DeLuca v. Common

Council, 72 Wis.2d 672, 242 N.W.2d 689 (1976)

The trial of this action was held on August 22 and 23,

1977. At the close of petitioner’s case, the District Court

granted the respondents’ motion to dismiss on the grounds

that the petitioner had failed to make a prima facie case

and on the alternative ground that the action was barred

by res judicata. The United States Court of Appeals of

the Seventh Cireuit held that the action was barred by the

+

principles of res judicata and collateral estoppel without

deciding whether the petitioner had made out a prima facte

case.

The petitioner has commenced five actions in the state

courts challenging the propriety of the procedures leading

to his suspension and eventual discharge from office. Four

of these actions have been dismissed. One action is still

pending in which the petitioner claims that the respondents

and Alderman Mayer defamed him by publishing the

Common Council’s Findings of Fact and Conclusions of

Law. (Ex. 156-166, Tr. pp. 63-65)

~

or

WHY THE WRIT SHOULD BE DENIED

I,

THE PETITIONER FAILED TO MAKE

OUT A PRIMA FACIE CASE

The petitioner must not only show that the Court of

Appeals misapplied the doctrine of res judicata but also

that he has made out a prima facie case in order to over-

turn the dismissal of his action. The petitioner does not

make any argument in support of his suggestion that the

District Court erred in determining that he failed to make

out a case. The petitioner’s Statement of the Case omits

a number of salient facts, such as the petitioner’s opinion

that the defendants tended to vote as a block is unsup-

ported by the Common Council minutes (Ex. 182-189),

Wis, Stats. Sec. 66.77 (1971), the Wisconsin’s Open Meet-

ing Law, was a directory statute which did not provide for

any penalties for its violation, the respondents had a right

to commence removal proceedings because they were citi-

zens and taxpayers, and not because they were public

officials, and the petitioner did not think any of the alder-

men were biased except Alderman Robertson. The peti-

tioner felt that Alderman Robertson was biased only be-

cause of some dispute in 1970 or 1971 over the specifica-

tions for an electrical generator. (Tr. pp. 17-18, 129-132)!

‘On July 15, 1977 the petitioner testified that the city never pur-

chased the generator. He swore at the trial on August 22, 1977 that

the Common Council approved the purchase of the generator de-

spite his objections. (Tr. pp. 119-120, 125)

6

II.

THE ACTION IS BARRED BY RES JUDICATA

The petitioner correctly asserts that the Wisconsin Su-

preme Court was ‘‘confined ... to a review of the record”’

of the administrative proceeding. The petitioner would

have a legitimate grievance if the Wisconsin Supreme

Court had decided his case on the basis of facts out-

side of the record. The petitioner, however, is simply

wrong in asserting that state procedures precluded him

from raising any constitutional issue. The Common Coun-

cil never prevented the petitioner from making any mo-

tion or raising any objection to its procedures. <Any al-

leged violation of Due Process may be reviewed by a com-

mon law writ of certiorari. State ex rel. Wasilewski v.

Board of School Directors, 1 Wis.2d 248, 263, 111 N.W.2d

198 (1961) The petitioner’s present complaint about the

inedequacy of state procedures is somewhat inconsistent

with his previous actions in commencing five suits in the

state courts.

The petitioner was not denied a full and fair hearing

in the state courts because the Wisconsin Supreme Court

refused to consider some of his objections which were

made long after the removal hearing. Neither state

nor federal law permits the disqualification of a de-

cisionmaker for reasons that were known, or should have

been known, but were never advanced at the original hear-

ing. Duffield v. Charleston Area Medical Center, Inc.,

503 F.2d 512, 515-16 (C.A. 4, 1974); Lloyd A. Fry Roofing

Co. v. F.T.C., 371 F.2d 277, 286 (C.A. 7, 1967) Never-

theless, the Wisconsin Supreme Court did consider some

of the petitioner’s objections which were first asserted

after the removal hearing. The Court said:

7

On appeal to this court, it was claimed for the first

time that some of the aldermen should have been dis-

qualified because they were involved in personal dis-

putes with DeLuca. This objection was not timely

raised and will not be dealt with.

It should also be pointed out that DeLuca claimed, for

the first time in his petition for a writ of certiorari,

that the two aldermen, Robertson and Daniel, had in-

vestigated the charges and they, therefore, were dis-

qualified from further proceedings. These objections

which were not made at the removal hearing cannot

be made for the first time in the court proceedings on

certiorari. We discussed the contention only because

the issue is one of probable continuing public interest.

(72 Wis.2d at 692)

~

The petitioner has had his day in court on all the issues

that were raised or could have been raised in the Wis-

consin Supreme Court despite that court’s refusal to dis-

cuss the merits of some of the issues because of the peti-

tioner’s procedural defaults. Mertes v. Mertes, 411 US.

961, 93 S.Ct. 2141, 36 L.Ed.2d 681 (1973) (Summarily af-

firming decision of three-judge court, 350 F.Supp. 472

[D.Del. 1972])

ITT.

THE PETITIONER IS COLLATERALLY ESTOPPED

FROM RELITIGATING THE ISSUES RAISED IN

THE COMPLAINT

The petitioner has claimed that this case involves a differ-

ent cause of action for the purposes of res judicata be-

cause of the presence of a new allegation that the defen-

dants were ‘‘acting in concert’’. A cause of action is usual-

ly more broadly defined for the purposes of res judicata

than for the purposes of pleading. Even if one were to in-

dulge in the dubious assumption that this case involves a

8

different cause of action for the purposes of res judicata,

the present action would still be barred by the doctrine of

collateral estoppel. The Wisconsin Supreme Court deter-

mined that the petitioner had been afforded Due Process

and specifically held that the Common Council was an im-

partial decisionmaker.

IV.

THE PETITION DOES NOT PRESENT

ANY IMPORTANT FEDERAL QUESTION

Some courts have been hesitant to hold that a civil rights

action is barred by res judicata where the state litigation

was involuntary as to the plaintiff or where the constitu-

tional issues could have been raised in the state courts

but were not. e.g. Thistlethwaite v. City of New York, 497

F.2d 339 (C.A.2, 1974), cert. den. 419 U.S. 1098, 95 S.Ct.

686, 42 L.Ed.2d 686; Lombard v. Bd, of Ed. of City of New

York, 502 F.2d 631 (C.A.2, 1974), cert. den. 420 U.S. 976,

95 S.Ct. 1400, 43 L.Ed.2d 656; ef. Blankner vy. City of

Chicago, 504 F.2d 1037 (C.A.7, 1974) cert. den. 421 U.S.

948, 95 S.Ct. 1678, 44 L.Ed.2d 101; reh. den. 422 U.S. 1029,

95 S.Ct. 2618, 45 L.Ed.2d 686; Scoggin v. Schrunk, 522 F.2d

436 (C.A, 9, 1975), cert. den. 423 U.S. 1066, 96 S.Ct. 807,

46 L.Ed.2d 657.

In contrast, this petitioner has freely elected to commence

several actions in the state courts where he relied upon both

the State and Federal Constitutions. This action would be

barred even if one were to adopt the most restrictive view

as to the proper application of res judicata in civil rights

actions. The petitioner does not claim that the Circuit

Court of Appeals’ decision conflicts with a decision from

any other Circuit. The petitioner’s claim that he was

denied a fair trial in the state courts is refuted by the

record. The petitioner does not advance any other reason

|

—

9

why this action should not be barred by res judicata or

why the decision of the Wisconsin Supreme Court should

not be given ‘‘full faith and eredit’’ in the federal courts

pursuant to 28 U.S.C, 1738. The present action is a wholly

inappropriate vehicle to resolve any possible inconsistencies

between the opinions of the various Circuit Courts of

Appeals.

V.

THE PETITIONER SHOULD NOT BE AFFORDED

STANDING TO ATTACK RULE 35 OF THE CIRCUIT

COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

Rule 35(d)(3) of the United States Court of Appeals

for the Seventh Circuit provides:

Any person may request by motion that a decision

by unpublished order be issued as a published opinion.

The request should state the reasons why the publica-

tion would be consistent with the guidelines for dis-

position of appeals as set forth in this rule.

The petitioner never made a motion to have the decision

printed and should not be afforded standing in this Court

to complain. It is immaterial to respondents, part time

public officials, whether the decision is published. No case

or controversy exists between the parties in respect to the

validity of Rule 35. The petitioner’s dispute is with the

Cireuit Court of Appeals.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for writ of certiorari should be denied.

Respectfully submitted,

Ray T. McCann

Attorney for Respondents