Opposition — Paxman v. Henrico County School Board

¥

No, 80-270

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

SUSAN PAXMAN anp LESLIE GOUGH,

Petitioners,

v.

HENRICO COUNTY SCHOOL BOARD

AND

ALBEMARLE COUNTY SCHOOL BOARD,

ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

JOINT BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

JAMES L. SANDERLIN* WILLIAM G. BRoapDUs*

JOHN W. Burke, III County Attorney for

McGuire, Woops & BATTLE Henrico County

1400 Ross Building P. O. Box 27032

Richmond, Virginia 23219 Richmond, Virginia 23273

(804) 644-4131 (804) 747-4342

Attorneys for Attorney for

Albemarle County Henrico County

School Board School Board

September, 1980

SS YER SS SPT EE SITE URED TM

*Counsel of Record

QUESTION PRESENTED

Did the United States Court of Appeals for the Fourth

Circuit improperly deny petitioners an award of back pay

by refusing to recall its Mandate in Paxman, et al. v.

Campbell, et al., 612 F.2d 848 (4th Cir. 1980), in order to.

apply retroactively Owen v. City of Independence, Missouri,

48 U.S.L.W. 4389 (April 16, 1980)?

TABLE OF CONTENTS

Page

GRIPE IES PUREIIEEIUED cc etesccscesctsevaccdecuces i

ee ee I ik 0 6S c eackv aha caer Ker erender iii

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FRSRRMAUETE GE BEERS CARBS vette eet eessussecenens 2

SUMMARY OF ARGUMENT:

The Court Should Refuse To Grant The Writ Of Certiorari

Or, In The Alternative, If It Grants The Writ, Summary

OCONEE TO SID vic kc cove bocce vcseencivercss 3

ES ee rr eT Serer Tee rere 3

8 a ee eer Ee ree, ane era 11

TABLE OF AUTHORITIES

Cases

Becker v. Beaudoin, 261 A.2d 896 (R.I. 1970).............. 8

Brown v. City of Omaha, 160 N.W.2d 805 (Neb. 1968)....... 8

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).......... 5, 6, 10

Cipriano v. City of Houma, 395 U.S. 701 (1969)............ 5

City of Fairbanks v. Schaible, 375 P.2d 201 (Alaska 1962).... 8

City of Los Angeles v. Manhart, 435 U.S. 702 (1978)........ 10

City of Phoenix v. Rolodziejski, 399 U.S. 204 (1970)........ 5

Cleveland Board of Education v. LaFleur,

ey SE on ko ROA ie Wes OE RR ha eee os Passim

Cohen v. Chesterfield County Board of Education, 474 F.2d 395

(4th Cir. 1973) (en banc) rev’d sub nom., Cleveland Board

of Education v. LaFleur, 414 U.S. 632 (1974)............ ee

Colby v. Carney Hospital, 254 N.E.2d 407 (Mass. 1969)...... 8

Hicks v. State of New Mexico, 544 P.2d 1153 (N.M. 1975).... 8

Holytz v. City of Milwaukee, 115 N.W.2d 618 (Wis. 1962).... 8

Jackson v. City of Florence, 320 So.2d 68 (Ala. 1975)........ 8

iti

| PREVIOUS PAGE WAS BLANK |

e mane ” "

Jones Vv. State Highway Commission, 557 S.W.2d 225 (Mo.

SU ee ear Me Fe Vs ral pin hd Ciba be iech i ie Rae 8 8

Kojis v. Doctors Hospital, 107 N.W.2d 292 (Wis. 1961)...... 8

Lemon v. Kurtzman, 411 U.S. 1972 (1973)..........000 00 5

Merrill v. City of Manchester, 332 A.2d 378 (N.H. 1974)..... 8

Molitor v. Kaneland Community Unit District No. 302, 163 N.E.

2d 89 (Ill. 1959), cert. den., 362 U.S. 698 (1960)......... 8

Monell v. Department of Social Services,

a aed CASE bs ob be ke se eee Passim

Monroe V. Pape, 365 U.S. 167 (1961)......... cc cee eee eee 6

Oroz Vv. Board of County Commissioners, 575 P.2d 1155, (Wyo.

SP OUT eke rad a kae cba SOREN KL hee es Che ToS be 8

Owen Vv. City of Independence, Missouri, 48 U.S.L.W. 4389

co fe Lee ee eT eae Pee Te eee ree ere Passim

Parish v. Pitts, 429 S.W.2d 45 (Ark. 1968).............05. 8

Parker v. Port Huron Hospital, 105 N.W.2d 1 (Mich. 1960)... 8

Paxman, et al. v. Campbell, et al., 612 F.2d 848 (4th Cir.

ren Sewn as, eure dais esa Se boo aes Vay ante 68 ee

Paxman, et al. v. Campbell, et al., Nos. 75-1506, et al. (4th Cir.,

pT | PTT ESTE eT OUELE TATE ETRE 2,4

Paxman, et al. v. Wilkerson, et al., 390 F.Supp 442 (E.D.Va.

AE FAS APE Ean eer eee eae a Cerne 2

Scheuer V. Rhodes, 416 U.S. 232 (1974) ......... cc eee eee 7

Smith v. State of Idaho, 473 P.2d 937 (Idaho 1970).......... 8

Spanel v. Mounds View School District, 118 N.W.2d 795 (Minn.

SEE. 2a so baled peed on Laid Aad Oe he Ree ow 8

Williams v. City of Detroit, 111 N.W.2d 1 (Mich. 1961)...... 8

Statutes

— % 6 a er Po ee ene ee rere eee 6

Other Authorities

Comment, The Role of the Courts In Abolishing Governmental

Immunity, 1964 Duke L.J. 888 ..........0 ccc cccvesvne 9

Currier, Time and Changes In Judge-Made Law: Prospective

Overruling, 51 Va. L. Rev. 201 (1965) .....cccsesseees 9

iv

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-270

SUSAN PAXMAN anp LESLIE GOUGH,

Petitioners,

V.

HENRICO COUNTY SCHOOL BOARD

AND

ALBEMARLE COUNTY SCHOOL BOARD,

ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

JOINT BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

OPINIONS BELOW

Paxman, et al. v. Campbell, et al., Nos. 75-1506, et al. (4th

Cir., July 22, 1980) (denying motion to recall the man-

date) (See Appendix p. la).

Paxman, et al. v. Campbell, et al., 612 F.2d 848 (4th Cir.

1980).

Paxman, et al. v. Wilkerson, et al., 390 F. Supp. 442 (E.D.

Va. 1975).

STATEMENT OF THE CASE

This litigation began December 6, 1971, when two

teachers, Susan Paxman and Leslie Gough, filed a class

action against members of the Albemarle and Henrico

County School Boards challenging their maternity leave

policies. In 1972, both Albemarle and Henrico voluntarily

rescinded their maternity leave policies and did not seek to

reestablish them despite a 1973 decision from the Fourth

Circuit Court of Appeals, sitting en banc, upholding similar

maternity leave policies.’

The challenged maternity leave policy of each respondent

provided for reinstatement following the end of the teacher’s

pregancy. Both petitioners were wives of university students

who were in their respective communities on a temporary

basis only. Neither petitioner has at any time following

termination of pregnancy requested reinstatement. An

award of back pay in this case as an adjunct to reinstate-

ment is a misnomer.

1 Cohen v. Chesterfield County Board of Education, 474 F.2d 395

(4th Cir. 1973) (en banc) rev’d sub nom., Cleveland Board of Edu-

cation Vv. LaFleur, 414 U.S. 632 (1974).

3

SUMMARY OF ARGUMENT

This Court Should Refuse To Grant The Writ Of Certiorari

Or, In The Alternative, If It Grants The Writ, Summary

Reversal Is Inappropriate

This Court should not grant the Petition For Writ Of

Certiorari because the Fourth Circuit Court of Appeals

expressly and specifically designated a method by which pe-

titioners could pursue the relief they request. Moreover, the

Court’s prior decisions are controlling and dictate that

Owen, Monell v. Department of Social Services, 436 U.S.

658 (1978) and Cleveland Board of Education v. LaFleur,

414 U.S. 632 (1974) should not be applied retroactively

to Paxman. If the Court’s prior decisions are not controlling

on the issue of retroactivity, then the Court should not apply

Owen, Monell and LaFleur retroactively without full brief-

ing and argument of this issue, which has substantial impact

on public schools and local governments.

ARGUMENT

In their Petition for Writ of Certiorari, Susan Paxman and

Leslie Gough ask the Court to apply retroactively the rules

established by Owen, Monell and LaFleur. Petitioners state

that the “obvious conflict between the Fourth Circuit's

decision below and the Supreme Court’s decision in Owen,

supra, mandates that this Court grant certiorari in this

matter and summarily reverse the Fourth Circuit’s deci-

sion.” ’ By failing to mention the question of retroactivity,

petitioners seek to have this Court gloss over the question

of retroactive application of these decisions. The relief pe-

titioners seek could have devastating consequences for

local treasuries.

* Petition for Writ of Certiorari, p. 6.

4

The writ sought is procedurely and substantively unneces-

sary. On July 22, 1980, the Fourth Circuit Court of Appeals

ruled that the petitioners’ request that Owen be applied

retroactively should be presented in the first instance to the

district court.’ This Court therefore should not grant the writ

because petitioners have a specifically designated forum in

which to pursue the relief they request. Petitioners raise the

specter that they “may be the only persons in their class de-

nied relief in the form of back pay.” * Petitioners should not

be heard to raise this imaginary inequity when, in pursuing

relief, they have elected to ignore the method provided by

the Court of Appeals. A grant of the writ is unnecessary as

petitioners have another appropriate forum open to them;

and denial of the writ will produce no inequity or unfair

treatment.

A further and more fundamental reason why this Court

should not grant the writ is that prior decisions of the Court

control and dictate that the trilogy, Owen, Monell and

LaFleur, should not be applied retroactively to the Henrico

County and Albemarle County School Boards.’ Each of

these cases was decided after the actions of the respondents

that gave rise to the petitioners’ claims and after the policies

in question had been repealed by each of the school boards

involved.

’ Paxman, et al. v. Campbell, et al., Nos. 75-1506, et al. (4th

Cir., July 22, 1980) (denying Motion to Recall Mandate). See

Appendix, p. la.

* Petition for Writ of Certiorari, p. 7.

°The reasons why Owen, Monell and LaFleur should not be

applied retroactively were addressed in the proceedings below. See

Response of Appellants, Clarence S. McClure, Comer Smith, Douglas

White, Allen Kindrick, Carl M. VanFossen, H. Edward Chapman;

and Rodger Rinehart, Jr., Members of The Albemarle County School

Board, To Appellees’ Motions To Recall Mandate And to Direct Dis-

trict Court To Stay Entry Of Judgment, pp. 7-17 (filed May 2, 1980);

Henrico County Appellants’ Memorandum In Opposition To Motion

5

Under the rationale of Chevron Oil Co. v. Huson, 404

U.S. 97 (1971), Owen, Monell and LaFleur should not be

applied retroactively. Chevroi remains the benchmark for

the retroactivity question.’ There, this Court stated:

In our cases dealing with the nonretroactivity question,

we have generally considered three separate factors.

First, the decision to be applied nonretroactively must

establish a new principle of law, either by overruling

clear past precedent on which litigants may have relied

...or by deciding an issue of first impression whose

resolution was not clearly foreshadowed. . . . Second, it

has been stressed that “we must...weigh the merits

and demerits in each case by looking to the prior history

of the rule in question, its purpose and effect, and

whether retrospective operation will further or retard

its operation.” Finally, we have weighed the inequity

imposed by retroactive application, for “[w]here a

decision of this Court could produce substantial in-

equitable results if applied retroactively, there is ample

basis in our cases for avoiding the ‘injustice or hard-

ship’ by a holding of non-retroactivity.” ’

Application of these principles to LaFleur dictates that

it not be applied retroactively. LaFleur was a decision of

first impression and its resolution was not clearly fore-

shadowed. Indeed, it reversed Cohen v. Chesterfield County

To Recall Mandate, pp. 5-10 (filed May 2, 1980); Supplemental

Brief for Appellants, Clarence §. McClure, Comer Smith, Douglas

White, Allen Kindrick, Carl M, VanFossen, H. Edward Chapman

and Rodger Rinehart, Jr., pp. 22-27 filed on behalf of the members

of Respondent Albemarle County School Board (filed October 27,

1978) (addressing retroactivity of Monell and LaFleur); Suggestion

for Hearing En Banc (filed September 19, 1978).

* See Lemon v. Kurtzman, 411 U.S. 192, 197-99 (1973). See

also City of Phoenix v. Rolodziejski, 399 U.S. 204 (1970), Cipriano

v. City of Houma, 395 U.S. 701 (1969).

* 404 U.S. at 106-07.

6

Board of Education, 474 F.2d 395 (4th Cir. 1973), an en

banc decision, which confirmed the validity of similar ma-

ternity leave policies. Despite the fact that such policies

had found widespread acceptance, the Albemarle and Hen-

rico School Boards rescinded their policies in 1972, two

years prior to this Court’s decision in LaFleur. Thus, retro-

spective application will not further the operation of LaFleur.

Such an application can only produce substantial, inequita-

ble results by penalizing public school systems whose

officials were unable to discern the evolution of constitu-

tional law. Moreover, it would be doubly inequitable to

couple a retroactive application of LaFleur with the finan-

cial penalties brought by a retroactive application of Owen

and Monell. This is particularly true in this case where

neither teacher sought reinstatement to her position,

As with LaFleur, the Chevron principles require that

Owen and Monell not be applied retroactively. Together

Owen and Monell strip municipal bodies of all immunity.

In Monell, the Court overruled Monroe v. Pape, 365 U.S.

167 (1961) and held that municipal bodies are “persons”

within the meaning of 42 U.S.C. § 1983. This eliminated

the absolute immunity to suit under § 1983, previously held

by municipal bodies. In Owen, the Court ruled that munici-

palities are not entitled to a qualified “good faith” immunity.

Mr. Justice Powell observed in his dissent in Owen that

Owen “inexplicably departs from this Court’s prior decisions

under § 1983.”° He noted that under Owen and Monell

“municipalities will have gone in two short years from ab-

solute immunity under § 1983 to strict liability.” ° It cannot

be denied that Monell overruled clear past precedent and

neither it nor Owen was foreshadowed. Until Owen-Monell,

8 48 U.S.L.W. at 4399 (J. Powell, dissenting).

* Id, at 4401.

7

municipal bodies or their officials could be held liable for

money damages only if they acted in bad faith. Owen-Monell

clearly overturns this past state of the law.

Owen and Monell demand a new approach to decision-

making by public bodies. Prior to those decisions, this Court

suggested that public bodies and officials must be free to

pursue decisions vigorously because such an approach to

decision-making would enhance the public good.” After

Owen and Monell a new standard of conduct is required for

and a new consideration is injected into official decision-

making. When confronted with a claim of possible consti-

tutional violation if certain action is taken, the municipal

body must now gauge the effect on the local treasury of a

future adverse ruling by a court even though the contem-

plated action seems constitutional under the existing state

of the law.** Under the new policy of Owen-Monell munici-

pal bodies now must exercise extreme caution.

Even if the dramatic shift of emphasis caused by Owen-

Monell is appropriate, retroactive application of those

cases will not further their operation. To the contrary, such

a result will produce substantial inequities and may lessen

respect for the law as a guiding principle. After Owen-

Monell municipal bodies are on notice of the stricter stand-

ard to be applied to their decision-making and of the need

to have adequate financial reserves or insurance to cover

any wrong decisions. Petitioners suggest that municipal

decisions made many years prior to Owen and Monell

when there was no need for insurance should be judged by

the radically different standards first articulated in those

cases. This would be unfair.

In light of the new rule enunciated in Owen, municipal

10 See Scheuer V. Rhodes, 416 U.S. 232 (1974).

1 See 48 U.S.L.W. at 4397.

8

bodies now may plan for the threat of financial liability

based upon future changes in constitutional requirements

by insuring or setting aside funds. The Albemarle and Hen-

rico County School Boards had no reason to seek insurance

or to set aside funds to cover claims such as Mrs. Paxman’s

and Mrs. Gough’s. It would be inequitable and unfair to im-

pose monetary damages on respondents by a retroactive ap-

plication of Owen, Monell and LaFleur.

Historically, some courts have lessened the impact of judi-

cial abolition of immunity by applying such decisions purely

prospectively so that they do not even affect the merits of the

case in which the new rule was announced.” Other courts

have lessened the impact of abolition of immunity by limit-

ing the retroactive effect of the new rule to the case that

established the rule, under what is referred to as the “re-

ward” theory.”

Commentators as well have advocated the nonretroac-

tive application of decisions that abrogate doctrines of

charitable and governmental tort immunity. One com-

12 See, e.g., Colby v. Carney Hospital, 254 N.E.2d 407 (Mass.

1969); Williams v. City of Detroit, 111 N.W.2d 1 (Mich. 1961);

Spanel v. Mounds View School District, 118 N.W.2d 795, 803-04

(Minn. 1962); Hicks v. State of New Mexico, 544 P.2d 1153, 1158-

59 (N.M. 1975).

18 See, e.g., Jackson v. City of Florence, 320 So.2d 68, 74-75 (Ala.

1975); City of Fairbanks v. Schaible, 375 P.2d 201, 211 (Alaska

1962); Parish v. Pitts, 429 S.W.2d 45, 52-53 (Ark. 1968); Smith

v. State of Idaho, 473 P.2d 937,950 (Idaho 1970); Molitor v.

Kaneland Community Unit District No. 302, 163 N.E.2d 89, 97-98

(Ill. 1959), cert. denied, 362 U.S. 698 (1960); Parker v. Port Huron

Hospital, 105 N.W. 2d 1 (Mich. 1960); Jones v. State Highway

Commission, 557 S.W.2d 225, 231 (Mo. 1977); Brown v. City of

Omaha, 160 N.W.2d 805, 809 (Neb. 1968); Merrill v. City of

Manchester, 332 A.2d 378, 383-84 (N.H. 1974); Becker v. Beaudoin,

261 A.2d 896, 902 (R.I. 1970); Holytz v. City of Milwaukee, 115

N.W.2d 618, 626 (Wis. 1962); Kojis v. Doctors Hospital, 107

N.W.2d 292 (Wis. 1961); Oroz v. Board of County Commissioners,

575 P.2d 1155, 1159 (Wyo. 1978).

9

mentator notes that “courts should allow the public en-

tities time in which to re-evaluate their fiscal policies and

prepare to meet their new responsibilities through insurance

or additional revenue appropriations.” ** While Owen and

Monell abrogate a different type of immunity, the above ra-

tionale and the reasoning of the previously cited state court

cases are equally applicable to compel a nonretroactive ap-

plication of Owen and Monell. Through nonretroactive ap-

plication, a change such as Owen-Monell may be made with-

out denying to the municipal body the necessary time to

incorporate the new stricter standard into its decision-

making process and to provide insurance and other protec-

tion of its existing programs.

The majority in Owen clearly intended municipal bodies

to consider and incorporate the new, stricter rule in future

decision-making. “The knowledge that a municipality will

be liable for all of its injurious conduct, whether committed

in good faith or not, should create an incentive for officials

who may harbor doubts about the lawfulness of their in-

tended actions to err on the side of protecting citizens’

constitutional rights.” ’* To apply Owen and Monell to muni-

cipal decisions made prior to Owen would in no way be

an incentive for officials to “err on the side of protecting citi-

zens’ constitutional rights.” Moreover, such a retroactive

application of Owen and Monell could severely and ad-

versely affect public schools already struggling to supply

quality education in an economy of rising costs. Here

petitioners make very clear that there is a class of school

teachers in addition to themselves waiting in the wing for

4 Comment, The Role Of the Courts In Abolishing Governmental

Immunity, 1964 DUKE L.J. 888, 898-99. See Currier, Time and

Change In Judge-Made Law: Prospective Overruling, 51 VA.L.REV.

201 (1965).

18 48 U.S.L.W. at 4397.

10

the respondents."* To apply these decisions retroactively

would mean that funds otherwise available for programs in

the schools must be used for back pay claims of teachers

who never asked to come back to work after their preg-

nancies.

In City of Los Angeles v. Manhart, 435 U.S. 702, 718-25

(1978), seven Justices of this Court agreed to deny re-

troactive readjustment of sex differentiated employee con-

tributions to pension funds based upon a concern for the

financial stability of insurance and pension plans throughout

the country. The Court found that sex based differentiation

in pension contributions violated Title VII’s prohibition of

classifications based on sex. However, the Court refused

to permit retroactive relief in the form of pension adjustment

because “retroactive liability could be devastating for a

pension fund.”*’ Similarly, in addressing the retroactive

application of Owen, this Court must consider the financial

effect of a retroactive application of Owen and Monell

on local public schools.

Under the Chevron analysis, Owen, Monell and LaFleur

should not be applied retroactively. The decisions were not

foreshadowed; retroactive application will not further the

policy of Owen, Monell or LaFleur and the equities favor a

nonretroactive application, thus lessening the impact of

judicial abrogation of municipal immunity.

Even if the prior decisions of this Court do not necessitate

a nonretroactive application of Owen, Monell and LaFleur,

this Court should not summarily apply these decisions retro-

actively to Paxman, as requested by petitioners, without full

briefing and argument of the question of retroactivity,

16 See Petition For Writ of Certiorari, p. 7.

17 435 US. at 722.

11

which will impact substantially upon localities and their

schools.

CONCLUSION

For the foregoing reasons, respondents urge the Court to

deny the Petition For Writ of Certiorari. In the alternative,

if the Court grants the writ respondents urge the Court to

consider the question of retroactivity maturely and not re-

verse summarily the actions of the United States Court of

Appeals for the Fourth Circuit.

Respectfully submitted,

JAMES L. SANDERLIN

JOHN W. BurRKE, III

McGuire, Woods & Battle

1400 Ross Building

Richmond, Virginia 23219

(804) 644-4131

Attorneys for

Albemarle County School Board

WILLIAM G. BROADDUS

County Attorney for Henrico County

County of Henrico

P. O. Box 27032

Richmond, Virginia 23273

(804) 747-4342

Attorney for

Henrico County School Board

September, 1980

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 75-1506, et al.

SUSAN PAXMAN and LESLIE GOUGH,

Appellees,

v.

DR. W. E. CAMPBELL, Division Superintendent,

Henrico County Public Schools;

MRS. JOHN DECESEBIO, Member Henrico County

School Board;

CECIL CHILDRESS, Member, Henrico County

School Board;

MRS. BETTY McMULLIN, Member, Henrico

County School Board;

CECIL F. JONES, Member, Henrico County School Board;

OLIVER J. SANDS, JR., Member, Henrico County

School Board;

REV. WALTER WHITT, Member Henrico County

School Board, Appellants.

Filed July 22, 1980, U.S. Court of Appeals

On Motion for Recali of Mandate

Appellees, Susan Paxman, et al., have moved for the

recall of our mandate so that we may consider amendment

or reversal of our decision of this appeal in the light of Owen

v. City of Independence, 48 U.S.L.W. 4389 (U.S. April 16,

The appellees’ application for relief should be presented

1980).

in the first instance to the district court pursuant to Federal

Rule of Civil Procedure 60(b). See 11 Wright & Miller, Fed-

eral Practice and Procedure §§ 2863 at 208-10 & n.12; 2864

at 223-24 and nn.51, 52, 53 (1973). Recall of our mandate

is unnecessary. Standard Oil Company v. United States,

429 U.S. 17 (1976). We, of course, express no opinion on

whether the appellees are entitled to the relief they seek.

WHEREUPON, it is ADJUDGED and ORDERED that

the motion to recall the mandate is denied.

FOR THE COURT:

Clement F. Haynesworth, Jr.

Se