Opposition Brief — Lundblad v. Celeste

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JUNG 1961

(Z) } OrFiGé OF THE CLERK

No. 90-1594 -

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

STEVEN LUNDBLAD,

Petitioner,

V.

RICHARD F. CELESTE; DOROTHY SHOEMAKER;

WILLIAM NAPIER; and DONALD OLSON,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

LEE FISHER

ATTORNEY GENERAL OF OHIO

By: E. DENNIS MUCHNICKI

Assistant Attorney General

Environmental Enforcement

30 East Broad Street, 25th FI.

Columbus, Ohio 43266-0410

(614) 466-2766

Counsel! of Record

for Respondents

JOAN C. WEISER

Assistant Attorney General

Co-Counsel for Respondents

ae QUESTIONS PRESENTED FOR REVIEW

Where all circuit courts which have addressed the issue

have held that considerations of political patronage are

permissible when state officials decide whether to award

a service contract to an independent contractor, did not

the court below properly recognize a qualified immunity

under Harlow v. Fitzgerald when it ruled to dismiss an

action filed by a disappointed bidder who was allegedly

denied a service contract in April, 1983, on the basis

of political affliation, under 42 U.S.C. §1983 et seq. and

the First and Fourteenth Amendments to the Constitution.

Where neither a property right to the award of a service

contract under state law, nor the inadequacy of state

post-deprivation remedies were clearly established in

April, 1983, did not the court below properly recognize

a qualified immunity under Harlow v. Fitzgerald when

it ruled to dismiss an action filed by a disappointed bidder

under 42 U.S.C. §1983 et seq. and the Fourteenth

Amendment to the Constitution.

PARTIES TO THE PROCEEDINGS

The parties to these proceedings are Petitioner Steven

Lundblad and Respondents Richard F. Celeste, Dorothy

Shoemaker, Executor of the Estate of Myrl Shoemaker,

William Napier and Donald Olson. Petitioner has waived all

claims earlier asserted against the State of Ohio, Department

of Natural Resources and Ronald James (Petition, p. 8, fn.1).

TABLE OF CONTENTS

| Page

QUESTIONS PRESENTED FOR REVIEW ............... i

PAP ee 1 THE PROCEEDINGS ..........ccccc eens ii

ED bcc sens ccs veces scsereceness iii

er iv

STATUTORY PROVISIONS INVOLVED ................. 1

I GO POMS cece cece cscs cen ceece 1

REASONS FOR DENYING THE PETITION

|. The Court of Appeals en banc ruling, which

dismissed the case under Harlow v. Fitzgerald

because it was not clearly established in April,

1983, that state officials were prohibited from

refusing to award a service contract to an

independent contractor on the basis of political

affiliation, is consistent with all existing

a 3

ll. The State Officials were entitled to qualified

immunity under Harlow v. Fitzgerald because

Petitioner failed to demonstrate that he enjoyed

a Clearly established substantive property right

under Ohio law; coupled with his inability to

identify any defect in Ohio's post-deprivation

remedies, the Sixth Circuit's refusal to entertain

his Due Process claims was correct. ......... 12

ee stale ae ecs bench seeassescnnscusees 17

TABLE OF AUTHORITIES

CASES Page

ARA Servs. Inc. v. School Dist. of Philadelphia,

590 F. Supp. 622 (E.D. Pa. 1984) ............. cc cee 15

Branti v. Finkel, 445 U.S. 507 (1980) ...... 5, 6, 8, 9, 10, 11

Cincinnati Electronics Corp. v. Kleppe,

SOD FG TOD Ct Ge, TIT on ccc cece ccc ccesenss 13

City of Dayton ex rel Scandrick v. McGee,

67 Ohio St.2d 356, 423 N.E.2d 1095 (1981) .......... 16

Coyne-Delaney Co. v. Capital Development Bd.,

GO0G F.20 S67, (7A CH TER) on. cece cscesccccess 13, 15

Elrod v. Burns,

Ee Se UTED Sdintekcncsseceeveacs 5, 6, 8, 9, 10, 11

Estey Corp. v. Matzke,

431 F. Supp. 468 (N.D.IIl. 1976) ............. ccc cee 15

Fox & Co. v. Schoemel,

C7 Fie Bee eer ee, TOR) nn cc ccc cc ese esenes 6, 8

Harlow v. Fitzgerald,

475. U.S. GRO CIGSE) 2... wc cccscsess 2, 4-5, 8, 9, 11, 12, 13

Horn v. Keane, 796 F.2d 668 (3rd Cir. 1986) ........... 7,8

Hudson v. Palmer, 468 U.S.517 (1984) *................ 16

J.P. Mascaro & Sons, Inc. v. Township of Bristol,

497 F. Supp. 625 (E.D. Pa. 1980) ................... 15

Kasom v. City of Sterling Heights,

600 F. Supp. 1555 (E.D. Mich. 1985),

aff'd mem. 785 F.2d 308 (6th Cir. 1986) .............. 13

CASES Page

Kendrick v. City Council of Augusta, Ga.,

516 F. Supp. 1134 (G6.C.Ge. 1061) 2... cc ccc cc ceees 15

L & H Sanitation, Inc. v. Lake City Sanitation, Inc.,

re eg ke a ee 15

LaFalce v. Houston, 712 F.2d 292 (7th Cir. 1983) ...... 6, 8

Logan v. Zimmerman Brush Co.,

ee. SEE cu ave vechub cose UNG eeu Sauces 15

Parratt v. Taylor, 451 U.S. 527 (1981) .......... cee eens 15

Perkins v. Lukens Steel Corp,

Se UID. GROTH io vice ces cic ccvewsccccccese 13, 14

Riverview Investments v. Ottawa Community

Improvement Corp, 769 F.2d 324

ot Pree ee kale 13-14

!

Rutan v. Republican Party of Illinois,

See ee TEE daw oes Sach hake 4 Eas 8-9, 10, 11

Scheurer v. Rhodes, 416 U.S. 232 (1974) ............... 3

Sowell’s Meat & Servs., Inc. v. McSwain,

618 F. Supp. 140 (D.C.S.C. 1985)

aff'd., 788 F. 2d 226 (4th Cir. 1986)

EN fa weer UU UCE NT COR ees sb wee eeu ena Oe at 15

a |

| State, ex rel. Heimann v. George,

45 Ohio St. 2d 321,

rr eo snes eeenebneeus 16

Inc. v. State Office Bldg. Comm.,

124 Ohio St. 413, 179 N.E. 138 (1931),

| aff'd on rehearing, 125 Ohio St. 301,

| og Ore 16

State ex rel. United District Heating

iii eeaaecaie earn

vi

CASES Page

Sweeney v. Bond,

669 F.2d 542 (8th Cir), cert. denied,

ESTE TLE TTT TTT Tee eee 6, 8

Teleprompter of Erie, Inc. v. City of Erie,

oe ee ee 15

Three Rivers Cablevision v. City of Pittsburgh,

S02 F.Supp. 1196 WUD.PR. BO)... cc cece evenness 15

Wood v. Strickland, 429 U.S. 308 (1975) ................ 4

STATUTES

EE LL ake k Gon wanuene cies ed 1, 3, 4, 6, 8, 13, 14

ee 1, 2, 10, 13

IE, ee ere ee Te 1

CONSTITUTIONAL PROVISIONS

U.S. CONST. Q@PMORG.§ 2... ccc ccc ccc c cc ceccccnace 2,6

STATUTORY PROVISIONS INVOLVED

Ohio Revised Code 1501.09 (Page's 1986)*:

The public service facilities mentioned in section

1501.07 of the Revised Code may be leased by

the department of natural resources for the

operation thereof as provided in section 1501.10

of the Revised Code, or may be operated by any

person, firm, partnership, association, or

corporation under contract with the director of

natural resources as provided in section 1501.091

[1501.09.1] of the Revised Code, or may be operated

by the department through the division of parks

and recreation.

STATEMENT OF THE CASE

A. Factual Background

In May of 1983, Petitioner filed suit in federai district court

against five employees of the State of Ohio (“State Officials”)

seeking substantial compensatory and punitive damages

against each of them personally fer alleged violations of 42

U.S.C. §§ 1983 et seq. No injunctive relief was sought.

Petitioner's constitutional injuries were alleged to have

occurred because the State Officials decided to solicit bids

for a concession operation of the Punderson State Park Golf

Course in Geauga County, Ohio, and ultimately rejected all

bids and self-operated the golf course. as

Petitioner had operated the golf course under a bid

concession contract with the State of Ohio for several years

preceding the Spring, 1983 season. This contract had expired

and was not subject to renewal under controlling provisions

of Ohio law (O.R.C. 1501.10, Petition, p.4). In his complaint,

Petitioner alleged that he submitted the “best bid” for the

concession and that the tentative selection of Petitioner's

* Ohio Revised Code 1501.09 is here set forth as it was in effect in April,

1983. It has since been amended in respects not pertinent to this litigation.

/

aati

PO

business competitor as the apparent awardee of the

concession contract was based solely upon partisan politics

and patronage considerations. Petitioner filed suit against

the State of Ohio on April 3, 1983, in the Court of Common

Pleas of Franklin County, Ohio, seeking to enjoin the State's

anticipated award of the concession contract to his business

competitor. Petitioner did not seek a mandatory injunction

compelling the award of the contract to himself. The

competitor withdrew his bid; the State rejected all other bids,

including Petitioner's; and the State Officials proceeded to

self-operate the golf course as was their exoress statutory

right in accordance with O.R.C. 1501.09.

B. Proceedings Below

Petitioner filed suit in the United States District Court,

Southern District of Ohio, Eastern Division in May, 1983,

alleging that the State Officials had violated his rights under

the First and Fourteenth Amendments by arbitrarily denying

him the contract to operate the golf course.* The district

court granted the State Officials’ motion to dismiss on res

judicata grounds (based on the judgment rendered by the

Ohio court of common pleas in Petitioner's state court action).

On appeal, the Court of Appeals for the Sixth Circuit reversed

the res judicata decision and remanded.

Upon remand to the district court, the State Officials moved

to dismiss on the grounds that in April, 1983, it was not clearly

established that consideration of political affiliation was

impermissibie in the selection of an independent contractor.

The State Officials sought qualified immunity under this

Court's ruling in Harlow v. Fitzgerald, 475 U.S. 800 (1982).

This motion was denied. On appeal, all three members of

the circuit court panel agreed with the State Officials that

Harlow applied and that Petitioner's claim as it related to

his allegation that his First Amendment rights of freedom

of association should be dismissed. Two judges heid that

Harlow protected the State Officials from Petitioner's Due

*Petitioner does not claim to be a member of any discrete and insular

class customarily associated with equal protection considerations.

w

Process claim, but that it did not extinguish his equal

protection cause of action; the dissenter held that Harlow

did defeat Petitioner's Due Process claim but not his equal

protection cause of action.

On rehearing en banc, all of the fourteen judges of the

Sixth Circuit unanimously agreed that Petitioner's claims

under the First Amendment and Equal Protection Clauses

should be dismissed because it was not clearly established

in April, 1983 that considerations of political affiliation were

impermissible in the selection of an independent contractor,

and Harlow immunity applied. Twelve of the judges agreed

that the same principles defeated Petitioner's claim under

the Due Process Clause, and two judges dissented from

only this aspect of the ruling.

REASONS FOR DENYING THE PETITION

|. The Court of Appeals en banc ruling, which

dismissed the case under Harlow v. Fitzgerald

because it was not clearly established in April,

1983, that state officials were prohibited from

refusing to award a service contract to an

independent contractor on the basis of political

affiliation, is consistent with all existing

precedent.

In a case such as this where government employees are

sued personally for monetary damages, and the plaintiff does

not seek any injunctive relief, this Court has consistently

recognized the chilling effect such burdensome litigation can

produce upon civil servants. Thus, the Court established

appropriate protection for government employees, and has

declared that a need for a qualified immunity for government

officials is vital to the function of government. In Scheurer

v. Rhodes, 416 U.S. 232 (1974), the former governor of Ohio

and various other state employees were sued under 42 U.S.C.

§ 1983 by the estates of students who were killed at Kent

State. In determining that the governor was entitled to

qualified immunity, the Court stated:

2 ee

implicit in the idea that officials have some

immunity - absolute or qualified - for their acts,

it is recognized that they may err. The concept of

immunity assumes this and goes on to assume that

it is better to risk some error and possible injury

from such error than not to decide or act at all.

Id., at 242. The Court further found that public officials who

failed to act or make necessary decisions due to the threat

of personal liability cannot fully and faithfuliy perform their

duties. /d.

The need for qualified immunity to protect officials who

exercise discretionary functions was emphasized by the

Court in Wood v. Strickland, 420 U.S. 308 (1975). In that case,

several high school students who were expelled from school

for serving “spiked” punch brought a 42 U.S.C. §1983 action

against various school officials. In determining the scope

of immunity afforded the officials, the Court looked to the

potential liability of the defendants and the chilling eifect

refusal to grant immunity could have in schoo! boards across

the country:

The imposition of monetary costs for mistakes

which were not unreasonable in light of all the

circumstances would undoubtedly deter even the

most conscientious decision maker from exercising

his judgment independently, forcefully, and in a

manner best serving the long-term interest of the

school and the students. The most capable

candidates for school board positions might be

deterred from seeking office if heavy burdens upon

their private resources for monetary liability were

a likely prospect during their tenure [Footnote

omitted].

Id. at 319, 320.

Finally, in Harlow, the Court established a clear standard

for granting qualified immunity to those who exercise

discretionary functions. Justice Powell, writing for the Court,

declared that:

[W]e conclude today that bare allegations of malice

should not suffice to subject government officials

either to the costs of trial or to the burdens of broad-

reaching discovery. We therefore hold that

government officials performing discretionary

functions generally are shielded from liability for

civil damages insofar as their conduct does not

violate clearly established statutory or

constitutional rights of which a reesonaine person

would have known.

2.ee ke 8 8 2

If the law at that time was not clearly established,

an Officials could not reasonably be expected to

anticipate subsequent legai developments, nor

could he fairly be said to “know” that the law

forbade conduct not previously identified as

unlawful.

Id. at 817-818.

The Petition is utterly devoid of reference to Harlow or

discussion of its application to the case at bar. Considering

that Harlow is the basis of the State Officials’ defense to

this action and the major focus of the Sixth Curcuit's decision,

omission of Harlow is inexplicable.

Furthermore, Petitioner does not cite even one single case

which holds that political affiliation is an impermissible

criterion in the selection of an independent contractor, nor

does Petitioner cite the well-established circuit court

precedent which contradicts this proposition — precedent

which the State Officials have repeatedly cited in numerous

briefs and memoranda filed in the eight years of this litigation.

Every circuit which has spoken on the subject has concluded

that the holdings of Elrod v. Burns, 427 U.S. 374 (1976) and

Branti v. Finkel, 445 U.S. 507 (1980) do not extend to the

context of selection of an independent contractor, and that

refusal to contract or even termination of an existing contract

on the basis of political affiliation will not support an

independent contractor's pursuit of relief under 42 U.S.C.

§1983. Such was the settled state of the law in April, 1983,

when the State Officials made the decision which spawned

this lawsuit.

In Sweeney v. Bond, 669 F.2d 542 (8th Cir.), cert. denied,

459 U.S. 878 (1982), the court allowed the Republican officials

of the State of Missouri to fire Democrat :nternal revenue

fee agents. The court upheld a district court finding that the

fee agents were not public employees and concluded that

they were “not protected from dismissal because of their

political affiliations”. /d. at 546. In Fox & Co. v. Schoemel,

671 F.2d 303 (1982), the Eighth Circuit reaffirmed the

principles of Sweeney v. Bond and held that an accounting

firm hired by the City of St. Louis, Missouri, to audit books

and records did not enjoy the protection established for

public employees in Elrod and Branti and could be dismissed

solely because of political affiliation notwithstanding a valid

contract.

On the heels of the Eight Circuit’s holding in Fox & Co.,

and just weeks after the State Officials made the decision

put at issue by Petitioner, the Seventh Circuit issued its

decision in LaFalce v. Houston, 712 F.2d 292 (7th Cir. 1983).

In LaFalce, plaintiff submitted a bid to install and maintain

benches along the streets of the City of Springfield, Illinois.

Like Petitioner, plaintiff claimed his bid was most favorable

to the contracting authority but was rejected solely because

his competitors were political supporters of the incumbent

and plaintiff was not. In rejecting plaintiff's First Amendment

claim, the court refused to extend Elrod and Branti to

independent contractors and deciared:

We are reluctant to tamper with political institutions

when the competing First Amendment interests are

as attenuated as they appear to be here.

A practical consideration reinforcing our caution

is that a decision upholding a First Amendment

right to have one’s bid considered without regard

to political considerations would invite every

disappointed bidder for a public contract to bring

a federal suit against the government purchaser.

Civil service laws protect many public employees

from being discharged; but it is in the nature of

competitive bidding that every award of a contract

involves the rejection of one or more other bids,

each of which could form the basis of a federal

suit under the theory advanced by the plaintiff in

this case.

We are particularly reluctant to take so big a step

in the face of the Supreme Court’s apparent desire

to contain the principle of E/rod and Branti. As the

Eight Circuit pointed out in Sweeney v. Bond, supra

669 F.2d at 542, 545, the plurality opinion in Elrod,

after noting that ‘the general practice of political

patronage’ inciudes making ‘nonofficerholders . .

. the beneficiaries of lucrative government

contracts for highway construction, buildings, and

supplies,’ states: ‘Although political patronage

comprises a broad range of activities, we are here

concerned only with the constitutionality of

dismissing public employees for partisan reason.’

427 US. at 353, 96 S.Ct. at 2680.

Some day the Supreme Court may extend the

principle of its public-employee cases to

contractors. But there are enough differences in

the strength of the competing interests in the two

classes of cases to persuade us not-to attempt to

do so.

Id., at 294, 295.

Finally, in Horn v. Keane, 796 F.2d 668 (3rd Cir. 1986), the

Third Circuit flatly declared that New Jersey motor vehicle

agents were independent contractors who were not insulated

by the First Amendment from being replaced by the

governor’s successor who was Of a different political party.

12

ll. The State Officials were entitled to qualified

immunity under Harlow v. Fitzgerald because

Petitioner failed to demonstrate that he enjoyed

a Clearly established substantive property right

under Ohio law; coupled with his inability to

identify any defect in Ohio's post-deprivation

remedies, the Sixth Circuit's refusal to entertain

his Due Process claims was correct.

The absence of any clearly established substantive right

to contract for the golf course concession was fatal to

Petitioner's due process claims and supported dismissal of

the complaint or Harlow grounds. It is equally compelling

that Petitioner's inability to demonstrate any fault with Ohio's

post-deprivation remedies protected the State Officials from

his substantive due process attack. Thus, qualified immunity

under Harlow serves to defeat the entirety of Petitioner's

due process claims.

The Sixth Circuit merely assumed, but did not decide, that

Petitioner was possessed of a property interest in the

evaluation of his bid. The court then reasoned that regardless

of the existence of any such right, Petitioner's claim under

the Due Process clause would fail “because Ohio judicial

remedies are perfectly adequate and provide all the process

that is due.” Petition, p.A.31. The Sixth Circuit's “assumption”

that Petitioner possessed a property interest under Ohio law

is in conflict with its own decisions and incorrect. This

disputed assumption is insufficient to support certiorari to

review Petitioner's procedural Due Process contentions —

which are themselves fatally flawed. However, despite the

court's erroneous “assumption”, it did reach the correct

conclusion and did not create bad law in the process.

An examination of and the law of the Sixth Circuit and

the law of Ohio relating to bidders for contracts with public

authorities illustrates the flaws in the Sixth Circuit's

“assumption” and Petitioner's complaint. The law in the

Circuit in April, 1983, clearly indicated that a bidder

possessed no constitutionally protected property interest.

13

The action of officials of the City of Sterling Heights,

Michigan, in 1982, who rejected all bids for a landscape

contract, was insufficient to establish a substantive property

interest and resulted in dismissal of plaintiff's 42 U.S.C. §1983

cause of action in Kasom v. City of Sterliing Heights, 600

F.Supp. 1555 (E.D.Mich.1985), aff'd mem. 785 F.2d 308 (6th

Cir. 1986).

In Coyne-Delaney Co. v. Capital Development Bd., 616 F.2d

341, (7th Cir. 1980), the Seventh Circuit rejected Plaintiff's

due process and equal protection claims and approved

Illinois’ supply contract bidding specifications which totally

excluded plaintiff from consideration. The court stated that

“A bidder on a government contract has no legally

enforceable right against the award of the contract to a

competitor other than those the government has seen fit

to confer.” /d. at 342. Ohio has not conferred any such right

upon concession bidders and indeed specifically reserved

the right to self-operate. O.R.C. 1501.09, p. 1. Under Harlow,

qualified immunity shielded the State Officials from personal

liability in deciding to self-operate.

Consistent with this analysis is the holding of Cincinnati

Electronics Corp. v. Kleppe, 509 F.2d 1080 (6th Cir. 1975),

where the Sixth Circuit declared that general competitive

bidding statutes do not confer property rights upon bidders

for public contracts. This Court has also recognized the

general proposition that, absent specific statutory provisions,

general competitive bidding statutes do not confer vested

rights of any kind upon bidders for public contracts. See,

e.g., Perkins v. Lukens Steel Corp., 309 U.S. 643 (1940).

Because Petitioner's cause of action hinges upon a general

competitive bidding statute which expressly authorizes self-

operation and has no specific provision giving participants

in the bidding process the right to seek damages as a

consequence of alleged irregularities in contract award, the

State Officials did not deprive Petitioner of any constitutional

right in rejecting all bids and deciding to self-operate the

Punderson State Park Golf Course.

A more recent Sixth Circuit decision reaffirms the principle

The court rejected claims raised under the First, Fifth and

Fourteenth Amendments and also refused to extend Elrod

and Branti to independent contractors. Today, none of the

circuits have undertaken to extend Elrod, Branti.or Rutan

v. Republican Party of Illinois, 110 S.Ct. 2729 (1996), beyond

public employees and into the sphere of independent

contractors.

Elrod and Branti are the two Supreme Court cases circa

1980 in which political affiliation is addressed. Both of these

cases are limited to firings of public employees, and neither

encompasses independent contractors. Sweeney v. Bond,

Fox & Co. v. Schoemel, LaFalce v. Houston, and Horn v.

Keane are the only circuit level cases which concern

independent contractors, and in every case the court

declared that considerations of political affiliation are

permissible in this context. Accordingly, it was not clearly

established in April, 1983, that patronage considerations

were improper in the selection of an independent contractor;

indeed, the settled state of the law indicates that such

considerations were consummately permissible then, and

they continue to be permissible today. Therefore, the State

Officials were well within the ambit of qualified immunity

established in Harlow, and the Sixth Circuit's en banc holding

to this effect is patently correct.

Recently, in Rutan, a majority of the Court extended the

principles of Elrod and Brantito hirings, promotions, transfers

and recall rights of public employees. The Rutan dissenters

argued that Elrod and Branti were wrongly decided and

should not be extended beyond their facts, and in support

of the arguments of the dissent Justice Scalia emphatically

underscored the lack of guidance the “appropriate

requirement” standard established in Branti provided to

government officials trying to avoid 42 U.S.C. §1983 liability

in the years following Branti:

A few examples will illustrate the shambles Branti

has produced. A city cannot fire a deputy sheriff

because of his political affiliation, but then again

perhaps it can, especially if he is called the ‘police

captain.’ A county cannot fire on that basis its

attorney for the department of social services, nor

its assistant attorney for family court, but a city can

fire its solicitor and his assistants, or its assistant

city attorney, or its assistant state’s attorney, or its

corporation counsel. A city cannot discharge its

deputy court clerk for his political affiliation, but

it can fire its legal assistant to the clerk on that

basis. Firing a juvenile court bailiff seems

impermissible, but it may be permissible if he is

assigned permanently to a single judge. A city

cannot fire on partisan grounds its director of roads,

but it can fire the second in command of the water

department. A government cannot discharge for

political reasons the senior vice president of its

development bank, but it can discharge the regional

director of its rural housing administration.

The examples could be multiplied, but this summary

should make obvious that the ‘tests’ devised to

implement Branti have produced inconsistent and

unpredictable results. That uncertainty undermines

the purpose of both the nonpatronage rule and the

exception. [Footnotes omitted.]

Id., at 2756-2757. Justice Scalia’s observation, in 1990, of

the varying interpretations given to Elrod and Branti

illustrates the general confusion stimulated by patronage

considerations in the context of government employees pre-

Rutan. In the post-Branti decisions and in the course of the

Rutan decision itself bitter conflict among learned jurists has

resulted from efforts to apply the standard articulated in

Branti. The very existence of such deeply divided thought

and opinion in an area where the Court has spoken certainly

substantiates the correctness of the Sixth Circuit's holding

in an area where the Court has remained silent. The state

of the law in April, 1983, called for application of Harlow

immunity in this case because Petitioner had no clearly

established constitutional right to operate the Punderson

State Park Golf Course in April, 1983.

10

Rutan is not in conflict with the decision reached below.

Indeed, citing Elrod, Branti and Rutan, the Sixth Circuit en

banc in the case at bar held:

... the Supreme Court has developed principles

under the First Amendment prohibiting the hiring

and firing of employees on a partisan political basis,

but the Court has not developed such principles

under the Equal Protection Clause, nor has it

extended these First Amendment principles to the

area of public contracts. It has not decided a case

holding that the award of public contracts on the

basis of political patronage violates either equal

protection or the First Amendment. Thus there is

no law developed in the Supreme Court that could

be said to ‘clearly establish’ the principle of equal

protection proposed by the plaintiff in this case.

(Petition, p. A.45). This holding is consistent with the

unanimity among the circuits which have addressed the

subject of patronage considerations in the context of

independent contractors. Denial of the golf course

concession contract to an independent contractor, allegedly

due to patronage considerations, did not violate any clearly

established constitutional rights enjoined by the Petitioner

in April, 1983, when the State Officials’ decision was made.

Moreover, there is no substantive entitlement to contract with

the State enjoyed by Petitioner to which any constitutional

right could attach.

Conspicuous by its absence from Petitioner's brief is any

reference to O.R.C. 1501.09,* which expressly authorizes the

Ohio Department of Natural Resources to lease, contract,

or self-operate facilities such as the Punderson State Park

Golf Course. None of the Ohio Revised Code statutes in

any way limit the ability of the Ohio Department of Natural

*O.R.C. 1501.09, as in effect in 1983, appears at P.1 of this brief. Later

amendments to this statute are omitted.

11

Resources to reject all bids, nor do any of these statutes

require a contract in lieu of self-operation. The Ohio laws

establish that contracting for concession operation of public

service facilities is permissive, not mandatory.

This particular case for which Petitioner now seeks review

is singularly ill-suited to the task of extending the holdings

of Elrod, Branti or Rutan to the context of independent

contractors. Primarily this is because it was not necessary

for the lower courts to reach or rule upon the issue of whether

political affiliation is a permissible criterion in selection of

independent contractors; instead, the task of the lower courts

was to decide whether the State Officials would be personally

liable for monetary damages for a decision made in April,

1983, concerning operation of the Punderson State Park Golf

Course. Accordingly, the Sixth Circuit en banc properly

confined its review to this question: whether the State

Officials, in making the decision to self-operate the golf

course in April, 1983, violated any clearly established

statutory or constitutional right enjoyed by Petitioner; or

whether they were entitled to the qualified immunity

established in Harlow v. Fitzgerald. The Sixth Circuit

expressed no opinion on whether considerations of political

affiliation are constitutionally permissible in selecting an

independent contractor; instead, it properly confined its

holding to the narrow question framed by Petitioner at the

early stages of this litigation.

The appellate court's decision was complete and adequate,

and it disposed of the case on the narrower ground of

whether Harlow v. Fitzgerald entitled the State Officials to

immunity. The court, confined to the historical question of

whether political affiliation was a permissible criterion in

April, 1983, did not exp!ore that question in the context of

any prospective activities, and the Court's restraint.iin refusing

to generate dicta relative to the underlying issue was properly

exercised.

14

that a bidder on a public contract does not possess a

substantive property interest of constitutional magnitude. In

Riverview Investments v. Ottawa Community Improvement

Corp., 769 F.2d 324 (6th Cir. 1985), the plaintiff contended

that it was deprived of a fundamental property right when

the defendant denied its application for industrial revenue

bonds. In establishing that a property interest did not exist,

the court noted that an enforceable claim of entitlement must

be derived from “a statute or legal rule or through a mutually

explicit understanding.” /d. at 327, quoting Leis v. Flynt, 439

U.S. 438 (1979). Moreover, a protected property interest must

be based on more than a subjective need, desire or

expectation of receiving a benefit; rather, it must be based

on a legitimate claim of entitlement that is created from a

source independent of the Constitution, such as a state law.

The court looked to Ohio law which made the issuance of

bonds discretionary, and found that the plaintiff did not have

a legitimate claim of entitlement. The authority relied upon

by plaintiff in Riverview derived from a provision of the Ohio

constitution which makes issuance of bonds discretionary.

The statute of import in the case at bar also states that

operation of concessions may be operated by contract or

state employees is discretionary. O.R.C. 1501.09, p. 1.

Similarly, there is no Ohio law giving a right to be granted

a state park concession contract. Nowhere on this subject

has the Ohio Supreme Court or any Ohio court of lesser

stature held that competitive park concession bidding

statutes confer a property right upon disappointed bidders

for public contracts; nor does Ohio law make the contracting

agency or Official liable in damages to the disappointed

concession bidder. Petitioner's mere disappointment does

not create a constitutional deprivation, consistent with this

Court's decision in Perkins v. Lukens Steel Corp., supra.

In April, 1983, O.R.C. 1501.09 stated:

The public service facilities mentioned in section

1501.07 of the Revised Code may be leased by

the department of natural resources for the

operation thereof as provided in section 1501.10

15

of the Revised Code, or may be operated by any

person, firm, partnership, association, or

corporation under contract with the director of

natural resources as provided in section 1501.091

of the Revised Code, or may be operated by the

department through the division of parks and

recreation. (p. 1; emphasis added.)

Under this authority, the State Officials enjoyed an absolute

right to self-operate the Punderson State Park Golf Course

in April, 1983. It was not clearly established in April, 1983,

that a disappointed bidder on a concession contract enjoyed

substantive due process rights. No opinion of the Supreme

Court or the Sixth Circuit recognized any such right. Indeed,

in April, 1983 when the action of the State Officials was

taken, there was significant disagreement among the federal

courts as to whether a bidder on a government contract

enjoyed any constitutionally protected property interest.

Compare L & H Sanitation, Inc. v. Lake City Sanitation, Inc.,

769 F.2d 517 (8th Cir.1985); Teleprompter of Erie, Inc. v. City

of Erie, 537 F.Supp. 6 (W.D.Pa.1981); Kendrick v. City Council

of Augusta, Ga., 516 F.Supp. 1134 (S.D.Ga. 1981); and Three

Rivers Cablevision v. City of Pittsburgh, 502 F.Supp. 1118

(W.D.Pa.1980) (all recognizing the possibility that such a

property interest can exist) with Coyne-Delaney Co. v. Capital

Dev. Bd., supra; Sowell’s Meats & Servs., Inc. v. McSwain,

618 F.Supp. 140 (D.S.C.1985), aff'd., 788 F.2d 226 (4th

Cir.1986)(per curiam); ARA Servs., Inc. v. School Dist. of

Philadelphia, 590 F.Supp. 622 (E.D.Pa. 1984); J.P Mascaro

& Sons, Inc. v. Township of Bristol, 497 F.Supp. 625

(E.D.Pa.1980); and Estey Corp. v. Matzke, 431 F.Supp. 468

(N.D.1I. 1976)(all doubting the existence of such a property

interest). This disagreement itself supports a finding that

Petitioner did not enjoy any clearly established property right

under the due process Clause.

Starting in 1981 with Parratt v. Taylor, 451 U.S. 527 (1981),

and followed in 1982 by Logan v. Zimmerman Brush Co.,

450 U.S. 909 (1982), this Court moved to stem the tide of

property cases coming into the federal courts on due process

grounds by ruiing that a deprivation of property under color

16

of state law, which was not readily curable by the

implementation of pre-deprivation procedures, did not

constitute a deprivation of property without procedural due

process so long as the state provided an adequate post-

deprivation remedy, such as a statutory or common law cause

of action for conversion. in Hudson v. Palmer, 408 U.S. 517

(1984), this Court was ultimately to hold that even intentional

property deprivations in violation of state or federal law

cannot by their nature be remedied by pre-deprivation

procedures, and accordingly do not violate procedural due

process if the state provides an adequate post-deprivation

remedy.

Under these cases it stands to reason that even if Ohio

law had created a property interest in Petitioner's favor, no

deprivation of procedural due process can be said to have

occurred because Ohio law provided Petitioner with various

adequate post-deprivation remedies. For example, Petitioner

could have availed himself of action in the Ohio Court of

Claims which, by statute, has ful! equitable and legal powers

over suits within its jurisdiction. Another available remedy

was an injunction action or a mandamus action in Ohio's

common pleas courts, which have full equitable and legal

powers to resolve controversies properly brought before

them, State ex rel. Heimann v. George, 45 Ohio St. 2d 231,

344 N.E. 2d 130 (1976); City of Dayton ex rel. Scandrick v.

McGee, 67 Ohio St.2d 356, 423 N.E.2d 1095 (1981) (permanent

injunction prohibiting entry into contract with arbitrarily

favored bidder); State ex rei. United District Heating, Inc.

v. State Office Bidg. Comm., 124 Ohio St. 413, 179 N.E. 138

(1931), aff'd on rehearing, 125 Ohio St. 301, 181 N.E. 129

(1932) (writ of mandamus compelling award to lowest bidder).

Petitioner has no federal cause of action against the State

Officials on procedural! due process grounds because Ohio

judicial remedies are perfectly adequate and provide al! the

process that is due. As the Sixth Circuit stated at 847 F.2d

1097, 1103:

Indeed, there is no claim that the Ohio courts

participated with the executive branch to refuse

contracts to Republicans. Thus, the Ohio courts

17

provide fair and nonarbitrary means of obtaining

a remedy, and so provide due process. There is

no showing that Ohio courts will deny Lundblad

a remedy if he can prove his claim of discrim-

ination based on party affiliation. Thus his

procedural due process claim must fail.

(Petition, p. A.32). Petitioner possesses no substantive right

which could support a review under the Due Process Clause.

Nor can he point to any defect in the Ohio judicial system

which could warrant review by this Court. Moreover, none

of the substantive due process “assumptions” made by the

Sixth Circuit were clearly established in April, 1983. It thus

foliows that the Sixth Circuit en banc reached the corret

conclusion upon narrow grounds and properly limited its

review and the scope of its holding to the particular facts

at hand. It did not embark on an academic odyssey to explore

constitutional matters outside the scope of the pleadings.

CONCLUSION

For the reasons stated above, the Petition for certiorari

should be denied.

Respectfully submitted,

LEE FISHER

ATTORNEY GENERAL OF OHIO

By: E. DENNIS MUCHNICKI

Assistant Attorney General

Environmental Enforcement

30 East Broad Street, 25th FL.

Columbus, Ohio 43266-0410

(614) 466-2766

Counsel of Record

for Respondents

JOAN C. WEISER

Assistant Attorney General

Co-Counsel for Respondents