Oppositioncc — Desris v. City of Kenosha

Office - Supreme Court, U.S.

bes Og ED

| MAY 20 1093

ALEXANDER L. STEVAg,

LCi ERK |

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JOHN F. DESRIS and LEO F. KONRAD,

Petitioners,

V.

THE CITY OF KENOSHA, WISCONSIN, ET AL.,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JAMES W. CONWAY,

City Attorney,

Rm. #201,

625 - 52nd Street,

Kenosha, WI 53140,

(414) 656-8061,

Counsel for Respondents.

i

TABLE OF CONTENTS

I "RATIONAL BASIS" - REVIEW

II. FOUNDATION FOR EQUAL PRO-

TECTION, "SIMILARLY SITUATED" - REVIEW

III. VALID PUBLIC PURPOSE -

V. OWEN AND MONELL - NO

VI. RULE 52(a) OF THE FEDERAL

A. Rule 52(a) Does Not Apply To

B. The Puliman-Standard Case Is

C. There Are No Inferences From

D. Where Findings Do Not Rely

Upon The Credibility Of Wit-

nessess, The Force Of The

Clearly Erroneous Doctrine

E. Rule 52(a) Does Not Auply To

Conclusions Of Law Or To Mixed

F. Findings Of Fact Of A Trial

Court In Equal Protection Cases

Are Not Binding On An Appellate

Court in Applying The “Rational

Renee Pete

G. The “Clearly Erroneous" Rule

- Does Not Apply Where Findings

Of Ultimate Fact Are Af*ected

INAPPROPRIATE ttt tio | ne a

INAPPROPRIATE AND UNNECESSARY............

“with ec ome fe

vce iwcnis dese CO Ns Eo Cee

RULES OF CIVIL PROCEDURE - NO VIOLATION..

Summary Judgment Cases..........

men Meer ecuete. lw... ke...

ee

RE

Questions Of Law And Fact.......

vil.

ii

By A Trial Court's Mis-

Apprehension Of The Law......... 24

Rule 52(a) Was Not Violated

When The Stipulated Facts

FOTO OCG, 8 gc en cece wees 25

OE aca ecawdaess 27

iii

TABLE OF AUTHORITIES

CASES: Page(s)

eerry v.. Sarchi. €43 U.S. $5. 61

Loge. 20 geo. Oe 5.06. 2642 (1979)... 23

Bence v. Milwaukee, 107 Wis. 2d 469,

Si Bee ek Be a re 9,11

Billings Associated Plumbing, Heating

and Cooling Contractors v. State

Board of Plumbers, 602 P. 2d 597

i i a we ewe eee ecuees 9

Flemming v. Nestor, 363 U.S. at 612,

® &. fe. 26 t4a5, G0 S.Ct. 1367

( ik vee adb ene an teens 23

Fortin v. Darlington Little League,

ame. LESS, GR. t) DES F.ae S44,

ihiewedcbeececneces 22

Hayes v. Missouri, 120 U.S. 68, 30

cee. aYe, 7 300. Ct. Rep. 350,

Oe Oe OF FG FIBRE ko oe cee eee cicccnces 2

martin v. Temaki, 607 F.2d 307, 310

Ce ahem e dass scesece 8

Monell v. New York City Department

of Social Services, 436 U.S. 658,

26 L.Ed. 2d Ot1, 98 $.Ct. 2018

Spe BOREL a Say pe ph no Mao a a ear 15,16,17

McGowan v. Maryland, 366 U.S. 420,

Seo. © L.&G. 26 393, 399, SI S$.

Oe Pe PU CUNT Fe cctcc ene ncccneccs 22

Owen v. City of Independence, 445 U.S.

Bee, GS LveG. £6 67s, 100 S.Ct.

Be a we ccc ce keene 15,16

Pullman-Standard v. Swint, 72 L.Ed.

eG GG, $e S.Ge. tee! CIOBZ)...... 18,19,21

iv

Ritter v. Morton (1975, CA 9, Idaho)

513 F.2d 942, 949 cert. den. 423

U.S. 947, 46 L.Ed. 2d 281, 96

a-Gt. 362 reh. den. 423 U.S. 1081,

me tee. 26 Si. 96 S.Gt. 869......... 24,25

Silverstein v. United States, 419

F.2d 999 (7th Cir. 1969), cert.

Meg wer U1. FOO) FE970).... oo ok ccc ce 19

United States v. Gorham, 536 F.2d

atu, t75 U.S. Abe. 0.C. 383 5G). cece 27

United States v. Texas Education

Aeency. Etc., (1977, CA 5 Tex) 564

F.2d 162, cert. den. aaa, U.S. S15,

mr eee. ce OPS, VS S Ct. 3106.......... 25

U.S. Railroad Retirement Board v.

Fritz, 449 U.S. 7166, 66 L.Ed. 2d

soo, 101 S.Ct. 453 Pees... ok ca. 4,23

Vance v. Bradley, 440 U.S. 93, 59

Gee. 26 171, $9 S.Ct. 939 eh 7k) ene 23

Watkins v. Scott Paper Co., (1976,

C.A. 5 Ala) 530 F.2d 1159, cert.

Gen. 429 U.S. 861, 50 L.Ed. 139,

8 BE a 21

STATUTES, RULES AND ORDINANCES:

ee eee. SO Oe Oe in ck ckkcckacucccec 12

ee Oe. COO Be. gc. . cwhwececcecucns 5,7

Misioterce SOG. G6P.12........:; ee ee ee ee

ee wre. BOE, GE TE cg cc cc cccccecncecn 12

woe. Cte. Sete... ss 17,18.20,.2) .25

We GUE i i kw cccectecvce 18

eae eee a 19,20

V

Kenosha, Wisconsin, Ordinance :

Pe CE Fy POPE hice cece scans 25.26

OTHER AUTHORITY:

Age Discrimination in Employment

Mee, £9 U.S.C. See. 631, Peb. L.

wo-202, SIZ, Dec. 15, 1967.

Oe hvciccccucecous

1

REASONS FOR DENYING THE WRIT

I. "RATIONAL BASIS" - REVIEW INAP-

PROPRIATE AND UNNECESSARY.

This case was effectively disposed of by

the Seventh Circuit Court of Appeals when it

ruled against Petitioners on one fundamental

issue, to-wit:

"Are the plaintiffs, as members

of the WRF pension plan, similarly

situated with firefighters governed

by the sec. 62.13 pension plan and

thus entitled to equal protection of

the law?"

The Seventh Circuit Court of Appeals stated in

this regard:

"Our determination that, for the

purpose of a claim based on the Equal

Protection clause, the plaintiffs are

not similarly situated with firefight-

ers belonging to the sec. 62.13 pen-

sion plan makes it unnecessary for us

to determine wnether a rational basis

exists for retiring WRF pension plan

members at age 60 and retiring sec.

62.13 pension plan members at age 65.

However, were it necessary to decide

this issue we would determine that a

rational basis does exist for this dis-

parity in age of mandatory retirement."

Although the Respondents contend that the Seventh

Circuit Court of Appeals did not error in any re-

spect, Respondents suagest that review of said

2

court's determination of the “rational basis"

issue is inappropriate and unnecessary as such

determination is only dicta and as Petitioners

could not recover in any event as they are not

"similarly situated" with sec. 62.13 firefighters.

II. FOUNDATION FOR EQUAL PROTECTION,

"SIMILARLY SITUATED" - REVIEW INAPPROPRIATE

AND UNNECESSARY.

The required foundation for an equal pro-

tection cause of action is clear, consistent,

unambiguous, long established, undisputed and

not in need of clarification by this court. As

early as 1887, this court held, in Hayes v.

mrssourt, 120 U.S. G8, 30 L.Ed. 578, 7 Sup.Ct.

Rep. 350, at 580 of L.Ed.:

"The Fourteenth Amendment to the Con-

stitution of the United States does not

prohibit legislation which is limited

either in the objects to which it is

directed, or by the territory within

which it is to operate. It merely re-

quires that all persons subjected to

such legislation shall be treated alike,

under like circumstances, and conditions,

both in the privileges conferred and in

the liabilities imposed. As we said in

Barbier v. Connolly, speaking of the

Fourteenth Amendment: "Class legislation

discrimination against some and favoring

others, is prohibited; but legislation

which, in carrying out a public purpose,

is limited in its application, if within

the sphere of its operation it affects

3

alike all persons similarly situated,

is not within the Amendment." 113 U.S.

27, 32 (28: 923,925). (emphasis sup-

plied)

The required foundation for an equal pro-

tection cause of action, a foundation herein

lacking, is summarized in American Juris Pru-

"It has been repeatedly said that the

guaranty of the equal protection of the

laws means that no person or class of

persons shall be denied the same pro-

tection of the laws which is enjoyed by

other persons or other classes in like

circumstances,...". (emphasis supplied)

s6n Be Guy £6, séc. 737, at 774.

"Equal protection in its guaranty of

like treatment to all similarly situated

permits classification which is reason-

able and not arbitrary and which is

based upon material and substantial dif-

ferences having a reasonable relation to

the objects or persons dealt with and to

the public purpose sought to be achieved

by the legislation involved. The equal

protection clause does not forbid dis-

crimination with respect to things that

are different. The test is whether the

difference in treatment is an invidious

discrimination,...”". I6A Am Jur 2d, sec.

738, at 176-777.

"The Constitution does not require

situations which are different in fact

or opinion to be treated in law as

though they were the same." 16A Am Jur

2d, sec. 746, at 807.

"Classification is an inherent right

and power of the legislature, and the

4

constitutional guaranty of equal pro-

tection does not dispense with all

Classifications. A differentiation is

not necessarily a discrimination. And

Since the very idea of classification

is inequality, inequality in no manner

determines the question of constitu-

tionality." 16A Am Jur 2d, sec. 747,

at 802.

"The legislative power to classify

includes the power to sub-classify with-

in reason." 16A Am Jur 2d, sec. 747,

at 806.

",..the difference between the sub-

jects of a legislative classification

need not be great, and if any reasonable

distinction between the subjects as a

basis for the classification can be

found, the classification should be sus-

tained; a ‘narrow' distinction will

suffice.“ I16A Am Jur 2d, sec. 754,

at 841.

A recent pronouncement of this court, U.S.

Railroad Retirement Bd. v. Fritz, 449 U.S. 166,

6G L.Ed. 2d 368, 101 S.Ct. 453 (1980), at 378-

379 L.Ed., provides us with the clearest explana-

tion to date of what the courts are to look for

in examining legislative pronouncements chal-

lenged on equal protection grounds:

"Where, as here, there are plausible

reasons for Congress' action, our in-

quiry is at an end. It is, of course,

“constitutionally irrelevant whether

this reasoning in fact underlay the

legislative decision," Flemming v.

mestor, 363 U.S., at 612, 4 L.Ed. 2d

1435, 80 S.Ct. 1367, because this court

has never insisted that a legislative

body articulate its reasons for enact-

ing a statute. This is particularly

true where the leaislature must neces-

sarily engage in a process of line draw-

ing. The “task of classifying persons

for...benefits...inevitably requires

that some persons who have an almost

equally strong claim to favorite treat-

ment be placed on different sides of

the line." Mathews v. Diaz, 426 U.S.

G67, 863-64, 46 L.td. 2a 476, 96 $.Ct.

1883 (1970), and the fact that the line

might have been drawn differently at

some points is a matter for legislative,

rather than judicial, consideration."

Petitioners erroneously argued before the

trial court that the appropriate classification

of City firefighters is "all City of Kenosha

firefighters", assuming sub-classes thereof to

be invidious discrimination. There are, however,

in reality, two logical classes of firefighters,

each being distinguishable from the other; name-

ly, firefighters subject to the retirement pro-

visions of Chapter 41 (WRF) and firefighters

subject to the retirement provisions of sec.

62.13, Wisconsin Statutes.

Under Chapter 41, the State set age fifty-

five (55) as the mandatory retirement age, but

gave the City the option of extending that age

6

([Stip., paras. 3,9 and 10-Petitioners' Appen-

dix EJ]. It is not disputed that the City, by

Ordinance, could provide for the mandatory re-

tirement of its WRF firefighters.

Under sec. 62.13, the sec. 62.13 Board,

which is also empowered to act by virtue of

State law, determined the retirement of fire-

fighters who were members of said plan [Stip.,

paras. 3,4,6,14,15,17 and 18-Petitioners' Ap-

pendix EJ]. Said Board retired its members on

the basis of a general age 65 policy. However,

there is legal authority to the effect that

retirements mandated by said Board should have

been processed on a case by case basis follow-

ing a due process hearing [Stip., para. 14-

Petitioners' Appendix E].

It would, therefore, be erroneous to con-

clude that there is only one class of fire-

fighters entirely under the control of the Re-

spondents. Please note that it is not unusual

for mandatory retirement ages to be established

through pension plans. Congress recognized the

fact that pension plans determine retirement

LZ

7

ages in the 1967 version of the Age Discrimi-

nation in Employment Act, 29 U.S.C. sec. 631,

Pub. L. 90-202, 512, Dec. 15, 1967, 81 Stat.

607, which contained the following exception

thereto:

"Sec. (7). Tt shall not be unlaw-

ful for an employer...(2) To observe

the terms of...any bona fide employee

benefit plan such as a retirement, pen-

sion or insurance plan which is not a

subterfuge to evade the purposes of

Cnis chaester....°»

The WRF treated its members equally. The

sec. 62.13 Board treated its members equally.

Equal treatment within said individual plans is

not disputed.

Under State law, at all times relevant, the

Chapter 41 (WRF) and sec. 62.13 pension plans

were autonomous. There is no authority to the

effect that one such independent and autonomous

body has a duty to adopt the position of another

independent and autonomous body. The WRF had no

duty to adopt the mandatory retirement policy of

the sec. 62.13 Board and vice versa since both

pension plans derived their authority to retire

their members from State law. The City Common

8

Council had no duty to establish a mandatory

retirement age for its WRF employees which was

consistent with the mandatory retirement poli-

cies of the sec. 62.13 Board. Under State law,

neither pension board is subordinate to the

other. For any court to hold that the Common

Council, with respect to WRF firefighters, had

a duty to adopt the retirement policy of the

sec. 62.13 Board would especially make very

little sense if a correct interpretation of the

duty of the sec. 62.13 Board leads to the con-

clusion that it must retire its members on a

case by case basis following a due process hear-

ing as there have never been any similar legal

contentions with respect to the WRF [Stip., para.

14-Petitioners' Appendix E]. The retirement pro-

cedures of the sec. 62.13 Board were never a

relevant issue in this case since Petitioners

. were WRF firefighters.

There is case law directly on point sup-

porting Respondents’ position. The 9th Circuit,

in Martin v. Tamaki, 607 F.2d 307, 310 (1979)

held that equal protection does not apply where

9

differences in pension plans are founded upon

two autonomous bodies administering their re-

spective pension plans. The Montana Supreme

Court held, in Billings Associated Plumbing,

Heating and Cooling Contractors v. State Board

of Plumbers, 602 P 2d 597 (1979), that dual

regulation is not unconstitutional and that

whenever there is dual regulation there will,

of necessity, be uneven treatment. The Wiscon-

sin Supreme Court's decision in Bence v. Milwau-

e

kee, 107 Wis. 2d 469, 318 N.W. 2d 918 (1982),

held that harmonious labor relations and the

provision of pension benefits are a valid pup-

lic purpose (at 484) and that (at 486) "A clas-

sification based upon whether an employe was

employed on the date that the collective bargain-

ing agreement was executed is a substantial dis-

tinction." The instant case is similar in that

the date of employment determines to which pen-

sion plan an employe belongs. Once an employe

is in a plan, the plan itself dictates the level

of benefits. Bence held that there was a ra-

tional basis for an ordinance which incorporated

10

provisions governing pensions arrived at

through a collective bargaining agreement

even though greater pension benefits were pro-

vided to employes who retired after a certain

date than were accorded employes who retired

prior to that date. This issue is similar to

the instant case. In the instant case, the

date of hire determines the pension plan to

which an employe will belong.

The instant case involves only an applica-

tion of existing law to the specific facts of

this case. This court, in the constitutional

law field, would not clarify the law or resolve

any conflicts among the circuits if it reviewed

this matter. Even if there was an error by the

Seventh Circuit, which is denied, the Petition

should be denied as this court has taken the

position that its limited resources are to be

utilized to set policy and not to routinely

correct Appellate Court errors.

III. VALID PUBLIC PURPOSE - NO

VIOLATION.

Petitioners, at 12-15 of their Petition,

contend that "...the critical issue is whether

11

reducing the WRF mandatory retirement age from

65 to 60 rationally furthered any legitimate

State purpose". This contention was not ex-

pressed by Petitioners as an issue before the

Appellate Court prior to a Petition for a re-

hearing. Petitioners' main brief submitted to

the Court of Appeals, at 19, stated:

"The issue before the court is

whether the actions of the Defendants

in establishing a mandatory retirement

age of 60 for one group of its fire-

fighters and of 65 for other firefight-

ers is rationally related to a legiti-

mate interest of the City."

Arguments on appeal centered on the disparity

between retirement ages in the two pension

plans, not on how those respective retirement

ages were arrived at.

Assuming a legitimate public purpose has

to be shown by Respondents, a legitimate public

purpose has to be shown for retiring WRF em-

ployees at age 60. The Wisconsin Supreme Court,

in Bence v. Milwaukee, 107 Wis. 2d 469, 318 N.W.

2d 918 (1982), held that harmonious labor rela-

tions and the provision of pension benefits are

a valid public purpose. A legitimate public

12

purpose does not have to be shown by the City

for reducting the WRF retirement age from 65

to 60. Further assuming that a legitimate pur-

pose has to be shown for reducing the retire-

ment age, Respondents can show such a legiti-

mate purpose, to-wit:

1) To permit early retirement at full

benefits to those employees who desire early

retirement. Early retirement provides for the

alternative benefits of either time off for re-

laxation or of time to change fields of employ-

ment, perhaps even going into business for one-

self, while receiving a guaranteed income from

a pension. Petitioners have already conceded

that the paying of benefits is a legitimate

state purpose. This purpose is not defeated,

but rather enhanced by permitting early retire-

ment and subsequent early payment of pension

benefits.

2) The City will reduce its exposure to

liability for heart and lung disease benefits

provided for under sec. 66.191 and sec. 40.65,

Wisconsin Statutes, since age increases exposure.

13

Exposure to normal worker's compensation claims

will also be reduced. Even if older employees

may not necessarily be more prone to accidents,

the impact of accidents that do occur is likely

to be more severe. Judicial notice of the aging

process will support said contentions.

3) Early retirement will increase promo-

tional opportunities within the department and

increased promotional opportunities, even if

not immediately available, will Spur morale and

productivity.

If Petitioners' position were accepted by the

courts, every city in the country would face

bankruptcy through millions of dollars in law-

suits filed by employees who are members of one

pension plan and who desire to procure some per-

ceived benefit available only through a pension

plan to which they are not members. At oral

arguments, the Seventh Circuit Court of Appeals

was quite concerned with the impact this case

would have upon large cities having many diverse

pension plans and retirement ages.

-IV. "SIMILARLY SITUATED", A THRESHOLD

QUESTION?

14

Petitioners contend that the “similarly

Situated" test is not a threshold question,

but rather a part of the “rational basis" test

itself. The answer to this question is not

material and this question need not be answer-

ed, for if Petitioners' are not "similarly

situated", they cannot prevail.

Petitioners' argument that there are no

real and substantial distinctions between the

WRF and sec. 62.13 pension Plans flies in the

face of a record which shows that there is no

Similarity whatsoever between said pension

plans. They both have different retirement

ages, different retirement benefits, different

methods for computing benefits, different enabl-

ing state legislation, different local imple-

menting legislation determining the actual re-

tirement age, different governing bodies making

policy decisions for and supervising the respec-

tive plans and different involvement of respec-

tive pension plan members in policy making (the

sec. 62.13 Board included firefighters as voting

members -thereof, whereas WRF plan members had no

fe

15

direct role in policy making and had input into

policy only through lobbying).

V. OWEN AND MONELL - NO VIOLATION.

Petitioners contend that this court's

decisions in Owen v. City of Independence, 445

U.S. G22, 63 L.Ed. 24 67S, 100 S.Ct. 1398 (1980)

and Monell v. New York City Department of Social

Services, 436 U.S. 658, 56 L.Ed. 2d 611, 98 S.Ct.

2018 (1978), if applied by the reviewing court,

would alter the outcome of this action. This

is not true as those cases are not applicable

as they are not even remotely on point. The

case at hand is an equal protection case. Owen

is not an equal protection case, but is a case

involving due process in the discharge of a pub-

lic employee and it is also a case involving

immunity defenses. Due process and immunity

are not herein at issue. If immunity were an

issue in the case at hand, it could only become

an issue following a court's finding of a viola-

tion of the equal protection of the laws. Im-

munity is relevant only where there would other-

wise be an award of damages. Since the Seventh

16

Circuit found no violation of equal protection,

there is no potential for an award of damages

and Owen is not relevant.

Petitioners’ most unrealistic argument is

one which was clearly rejected by the Court of

Appeals; namely, that this court's decision in

Monell compels a finding of liability because

both pension plans depict the policy of the City.

Monell created new law only in the area of im-

munities, not in the equal protection area.

Monell does not make the City liable simply for

having a custom or policy. For liability to

attach to the City, the City's policy or custom

must be constitutionally infirm. If there is

no equal protection issue in the first instance

or if there is such an issue, but the City has

a rational basis for its policy or custom, then

Monell is not applicable. The trial court er-

roneously relied upon Monell in holding the City

liable. It appears that once the trial court

found that the acts of the sec. 62.13 Board con-

stituted a custom or policy of the City, its

attention was diverted away from the true equal

17

protection issues. Monell has not deprived the

City of any defenses previously available to it

in the equal protection area.

Monell is being prematurely applied by Pe-

titioners as it is applicable only when a court

has first determined that an equal protection

violation has occurred. At that point Monell

is applied to determine whether or not the City

Should be liable for such a violation. Liabili-

ty would attach only where the City was found

to have a custom or policy and where more than

a respondent superior theory was invoked as a

bais for liability. Petitioners and the trial

court misinterpreted Monell by construing said

decision to impose liability whenever a City has

a custom or policy, per se. This position is

clearly erroneous as Monell, neither by express

Janguage nor by implication, is authority for a

trier of fact to abrogate applying the tradi-

tional “similarly situated" and "rational basis"

tests in equal protection cases.

VI. RULE 52(a) OF THE FEDERAL RULES

OF CIVIL PROCEDURE - NO VIOLATION.

18

The Seventh Circuit Court of Appeals did

not violate Rule 52(a) in reversing the trial

court's decision and did not engage in an in-

permissible trial de novo for the following

reasons:

A. Rule 52(a) Does Not Apply To Summary

Judgment Cases.

Rule 52(a) states in part:

"Findings of fact and conclusions

of law are unnecessary on decisions

OF motions under Rule...56...".

Rule 56 covers summary judgment. This

case was decided by the trial court under

Rule 56. Therefore, as findings of fact

are not necessary by a trial court in such

cases, it is not relevant whether or not

the Appellate Court disregarded any find-

ings of fact made by the trial court.

B. The Pullman-Standard Case is Not

Applicable.

Pullman-Standard v. Swint, 72 L.Ed. 2d 66,

102 S.Ct. 1781 (1982), cited on page 9 of

the Petition is not relevant as that Title

Vit case tnvoived *...8 District Court's

findings of fact, arrived at after a lenghty

19

criat...° 4at 72 of L.Ed.). .

The dissent of Justice Marshall therein

is also not relevant for even if that case

involved documentary evidence, documentary

evidence may be the subject of dispute and

such evidence, introduced at a lengthy

trial, is not the equivalentof stipulated

facts which form a basis for summary judg-

ment.

The Pullman-Standard case, not being a

Summary judgment case, did not, by impli-

cation, reverse the Seventh Circuit's

holding in Silverstein v. United States,

Q:3 F.26 S99 (7th Cir. 1969), cert. den.,

397 U.S. 1041 (1970), quoted on pages 9-10

of the Petition, a case which this court

refused to review. The Silverstein case

is still good law, holding that in a dis-

position of an action upon a motion for

Summary judgment, the “clearly erroneous"

rules do not apply, since only questions

of law are presented. Note that Rule 56(c)

of the Federal Rules of Civil Procedure,

20

buy its very terms, permits summary judg-

ment only where "...there is no genuine

issue as to any material fact and that the

moving party is entitled to a judgment as

a matter of law".

C. There Are No Inferences From The

Evidence.

Respondents deny that the-instant case

involves any inferences being drawn tron

the stipulated facts by any court. There-

fore, the cases cited by Petitioners in

this regard are not relevant.

D. Where Findings Do Not Rely Upon The

Credibility Of Witnesses, The Force Of The

Clearly Erroneous Doctrine Is Mitigated.

Rule 52(a) states in part:

",..due regard shall be given to the

opportunity of the trial court to judge

the credibility of the witnesses."

The instant case was not only decided by

Summary judgment, but it was decided on

stipulated facts which were part of the

Appellate record. Although the stipulation

was denoted a "partial stipulation of facts",

it was for the purposes of summary judgment

on the equal protection issue, the entire

21

factual record before the trial court.

Watkins v. Scott Paper Co., (1976, C.A.

5 Ala.) 530 F.2d 1159, cert. den. 429 U.S.

B61. $6 L.Ed. 139. 97 S.Ct. 163, held in

Footnote 17, at 1172:

"FR. Civ. P. 52(a) provides that

"due regard shall be given to the op-

portunity of the trial court to judge

the credibility of the witnesses."

Where findings do not rely upon the

credibility of witnesses, the force of

the clearly erroneous doctrine is miti-

gated." (citations omitted)

E. Rule 52(a) Does Not Apply To Conclu-

sions Of Law Or lo Mixed Questions Of Law And

Fact.

The Pullman-Standard case, cited by Pe-

titioners, stated as to Rule 52(a) that

the rule does not apply to conclusions of

law, at 79 of L.Ed., and to some cases in-

volving mixed questions of law and fact,

at 80 of L.Ed.. Once the trial court

found, "the plans are different, with each

having its own individual characteristics",

this finding was a sufficient basis for the

trial court to conclude that Petitioners

were not similarly situated.

The trial court noted the differences in

22

the pension plans, but found that those

differences were not substantial. The

determination of substantiality was a con-

clusion of law, which could be reversed on

appeal. The rationale therefor is that

facts relating to whether or not substan-

tial distinctions exist are not provable

in the usual sense, but are part and par-

cel of constitutional judgments which Ap-

pellate Courts must make. See Fortin v.

Darlington Little League, Inc., 13975, CA 1)

514 F.2d 344, 348-349.

F. Findings Of Fact Of A Trial Court In

Equal Protection Cases Are Not Binding On An

Appellate Court In Applying The “Rational Basis"

Test.

In equal protection cases findings as to

a rational basis by a trial court have lit-

tle weight on appeal. The reason for this

is that a defense to an equal protection

attack can be based upon "conceived facts".

In McGowan v. Maryland, 366 B.S. 620, 425,

& 2.€4. 26 393, 399, 81 S.Ct. 1101, 1105

(1961) it was held that a court will not

set aside a state's statutory classifica-

23

tion “if any state of facts reasonably may

be conceived to justify it". In Barry vy.

parents, 443 U.S. $5, 61 L.Ed. 24 365, 99

OcGt. 2662 (1979), at 377 of 1. Ed... this

court held that the governmental defendant

need not resort to “current empirical

proof" to disprove bare allegations. In

Vance v. Bradley, 440 U.S. 93, 59 L.Ed.

mo 471, 39 5.6t. 939 (7979), this court

held that in equal protection cases those

challenging the legislative judgment must

convince the court that the legislative

facts on which the classification is ap-

parently based could not reasonably be

conceived to be true by the governmental

decision maker. In Flemming v. Nestor,

wee Usd. Ot G12, 4 L.Ed. 26 1435, 80 S.Ct.

1367, as quoted in U.S. Railroad Retire-

pent Sd. v. Fritz, 449 U.S. 166, 66 L.Ed. 2¢

S50. 376-379, 101 SL£t. G3980}), this court

held that where there are plausible rea-

sons for legislative action, the inquiry

is at an end. “It is of course, constitu-

24

tionally irrelevant whether this reason-

ing in fact underlay the legislative de-

cision." The Supreme Court has never in-

sisted that a legislative body articulate

its reasons for enacting a statute. From

the above cases, it is readily apparent

that in equal protection cases we are deal-

ing with conceived facts rather than with

empirical proof. An Appellate Court has

just as much discretion in conceiving facts

as does a trial court. Therefore, no mat-

ter what the law is in other cases, in

equal protection cases, on appeal, findings

of fact by a trial court are totally irrele-

vant on the "rational basis" issue.

G. The "Clearly Erroneous" Rule Does Not

Apply Where Findings Of Ultimate Fact Are Af-

fected By A Trial Court's Misapprehension Of

The Law.

In the instant case, the clearly er-

roneous rule cannot be applied because

the trial court misapprehended the law

relative to the required foundation for

an equal protection claim. See Ritter vy.

Morton (1975, CA 9, Idaho) 513 F.2d 942,

25

949 cert. den. 423 U.S. 947, 46 L.Ed. 2¢

col, 96 $.Ct. 362, reh. den. 423 u.5. OB],

S7 L.Ed. 22 7, 96 S.Ct. 660. See also:

United States y. Texas Education Agency,

ete. (1977. CA & Tex) 564 F.2d 162, foot-

note 17, at 171-172, cert. den. oa. U,3.

915. 61 L.Ed. 22 379, 99 S.Ct. Wes.

H. Rule 52(a) Was Not Violated When The

Stipulated Facts Were Misquoted.

Petitioners, at 12-15 of their Petition,

correctly state that the Appellate Court

misquoted the facts. On page 3 of its

decision, the Court of Appeals stated:

"On May 7, 1974, the Kenosha Common

Council, exercised this statutory

authority by enacting Ordinance No.

39-74, extending the mandatory retire-

ment age for WRF firefighters from age

95 to age 60." (emphasis Supplied)

Paragraph 13 of the Stipulation of facts

stated:

"Ordinance No. 39-74, passed May 7,

1974, reduced said mandatory retirement

age for WRF protective Occupation em-

Ployees to sixty (60)." (emphasis sup-

plied)

This discrepancy is obviously an inadver-

. tent error in the writing of the decision

26

and is not intended to be a new Finding

of fact because this error is not material

to the Appellate Court's reasoning under-

lying its decision on the merits. This

discrepancy is not material as the basic

fact that Ordinance 39-74 set the manda-

tory retirement age of WRF protective oc-

Cupation employees at age 60 is consistent

in both the Appellate Court's decision and

the stipulation of facts. It is not ma-

terial to the outcome of this litigation

as to whether or not the retirement age

was raised or lowered to arrive at an age

60 mandatory retirement for WRF protective

occupation employees. The “similarly

Situated" and "rational basis" criteria

were applied solely to the fact of age 60

being the mandatory retirement age for WRF

Protective occupation employees. How age

60 was arrived at is Surplusage, said facts

being relevant only for the Purpose of pro-

viding the history of Ordinance 39-74.

This argument is supported by the case

27

of United States v. Gorham, 536 F.2d 410,

175 U.S. App. D.C. 383 (1976) wherein the

Appellate Court held that a factual state-

ment referred to in a footnote of the

Court of Appeal's original decision, which

was claimed to have had no basis for sup-

port in the record, could not be used as

a basis for granting a petition for re-

hearing where the statement was in no way

related to the basis of .the decision.

VII. CONCLUSION.

Respondents respectfully submit, for the

reasons outlined above, that this court deny

the petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh

Circuit.

Respectfully submitted,

t. CONWAY, Attorney

for\Respondents

Dated: Mar 1s, 1983