Respondents Brief — Arizona Western College District Governing Board v. Cooper

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FILE

JUN 16 1904

No. 83-1879 | ornate.

ALEXANDER L

In The

Supreme Court of the United States

October Term, 1983

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ARIZONA WESTERN COLLEGE DISTRICT GOVERN-

ING BOARD, CHARLES McCONNELL, WALTER

KAMMANN, HAROLD ANDERSON, AUSTEN HAY-

DIS and JOHN CURRIE, constituting the members

thereof,

Petitioners,

VS.

JOHN F. COOPER, RONALD COSTIN, ROBERT J.

GARCIA, JOE L. KING, RALPH MOOREHEAD, JIM

R. PELL, ROBERTA PURDY and PHILIP STANLEY,

Respondents.

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On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

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RESPONDENTS’ BRIEF IN OPPOSITION

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ArTHUR P. GREENFIELD

Winston & Strawn

3101 North Central Avenue

Suite 1500

Phoenix, Arizona 85012

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

"BEST AVAILABLE COPY

TABLE OF CONTENTS

Pages

STATEMENT OF THE CASE 1

SUMMARY OF ARGUMENT 5

ARGUMENT

I. The Petition For Writ Of CertiorariIs Premature. 6

II. No Prior State Court Litigation Precluded De-

termination Of The Federal § 1983 Claim... 7

CONCLUSION .... 9

TABLE OF AUTHORITIES

CasEs

Cooper v. Arizona Western College District Gov-

erning Board, 125 Ariz. 463, 610 P.2d 465 (1980). 3

Hamilton-Brown Shoe Company v. Wolf Brothers

& Company, 240 U.S. 251 (1915) 6

Heike v. United States, 217 U.S. 423 (1909) 6

John Simmons Company v. Grier Brothers Company,

258 U.S. 82 (1922) 6

Migra v. Warren City School District Board of

Education, — U.S. —, 76 L.Ed.2d 56 (1984)... 5, 6,8

Panama Railroad Company v. Napier Shipping Com-

pany, 166 U.S. 280 (1897) 6

Parr v. United States, 351 U.S. 513 (1955) 6

Patsy v. Board of Regents, 457 U.S. 496 (1982) _. 4,5,7

Scofield v. National Labor Relations Board, 394 U.S.

423 (1969) 6

Switzerland Cheese Association v. E. Horn’s Market,

85 U.S. 23 (1966) 7

United States v. Florian, 312 U.S. 656 (1941) 0. 7

li

TABLE OF AUTHORITIES—Continued

Pages

STATUTES

42 U.S.C. § 1983 2, 3, 5, 7,8

42 U.S.C. § 1985 8

No. 83-1879

In The

Supreme Court of the United States

October Term, 1983

ra’

Vv

ARIZONA WESTERN COLLEGE DISTRICT GOVERN-

ING BOARD, CHARLES McCONNELL, WALTER

KAMMANN, HAROLD ANDERSON, AUSTEN HAY-

DIS and JOHN CURRIE, constituting the members

thereof,

Petitioners,

vs.

JOHN F. COOPER, RONALD COSTIN, ROBERT J.

GARCIA, JOE L. KING, RALPH MOOREHEAD, JIM

R. PELL, ROBERTA PURDY and PHILIP STANLEY,

Respondents.

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Vv

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

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STATEMENT OF THE CASE

This litigation arose out of decisions by the District

Governing Board of Arizona Western College (herein-

after referred to as the “Board”) to terminate the re-

2

spondents’ employment as faculty and administrative staff

members at Arizona Western College in meetings held

on January 11, 12 and 18 of 1977. Respondents notified

petitioners by letter dated January 28, 1977 that they

believed the termination and non-renewal decisions were

improper and unjustified because the Board failed to

comply with the procedures set forth in the Arizona Wes-

tern College faculty handbook and there was no showing

of “cause” justifying the non-renewal decisions as re-

quired by the handbook.

Respondents’ protestations went unanswered, and on

March 1, 1977, they filed two lawsuits against the Board

and its individual members. One was a special action!

filed in the Arizona Superior Court, Yuma County, Cause

No. 38653, in which respondents sought a declaration that

the non-renewal decisions were made in violation of the

Arizona open meeting laws. The second action was the

present action filed in the United States District Court

for the District of Arizona.

Respondents initiated the present action by filing a

complaint pursuant to 42 U.S.C. § 1983, seeking damages

and reinstatement for the wrongful non-renewal of their

employment contracts as faculty and administrative staff

members at Arizona Western College. Respondents also

sought an order from the court directing petitioners to

grant them a full and fair hearing to challenge any alle-

gations of cause justifying the non-renewal decisions.

\Special action procedure is provided for in Arizona pur-

suant to rules found at Vol. 17A, Arizona Revised Statutes. Rule

1 of the Rules of Procedure for Special Actions describes the re-

lief available as being that previously obtained by the writs of

certiorari, mandamus or prohibition. (/d.)

Respondents then initiated discovery in both the Ari-

zona open meeting law action and the action filed pursuant

to 42 U.S.C. § 1983 in the United States District Court.

On the basis of the discovery conducted by respondents,

respondents filed a motion for summary judgment in the

Arizona open meeting law action in August of 1977. That

motion was granted on February 2, 1978. In finding for

respondents, the Arizona Superior Court ruled that the

action taken by the Board was in violation of the Arizona

open meeting laws, and, therefore, the non-renewal deci-

sions were null and void. In the absence of a valid non-

renewal decision, the respondents’ employment contracts

were automatically renewed. Thus, the ruling in the open

meeting law action had the effect of reinstating respond-

ents to their prior positions at Arizona Western College

and entitling them to back pay. In order to obtain the

back pay, respondents, with the exception of Roberta Pur-

dy, filed new damage actions in the Arizona Superior

Court for Yuma County on contract and tort theories in

March, 1978.

Petitioners appealed the Superior Court’s ruling in

the open meeting law action, and the Yuma County Super-

ior Court held the state damage actions in abeyance pend-

ing a ruling from the Arizona Court of Apeals. The ap-

peal also made it necessary to hold the federal action in

abeyance in order to preserve the respondents’ right to

seek redress for deprivations of their constitutional rights

if the ruling in the open meeting law action was reversed.

On March 4, 1980, the Arizona Court of Appeals re-

versed the trial court’s ruling in the open meeting law

action and remanded the case for trial. Cooper v. Arizona

Western College District Governing Board, 125 Ariz.

463, 610 P.2d 465 (1980). A trial was held in July, 1981,

which resulted in a judgment in favor of petitioners. In

April, 1982, the Yuma County Superior Court granted

judgment in favor of petitioners in the state damage ac-

tion on the sole ground that respondents failed to exhaust

their administrative remedies. It then became necessary

for the respondents to look to the federal court action for

redress of the deprivation of their due process rights.

On November 18, 1982, petitioners filed a motion to

dismiss, or, in the alternative, a motion for summary judg-

ment alleging that they were entitled to judgment in their

favor under theories of res judicata, abandonment by re-

spondents of the litigation, failure to exhaust administra-

tive remedies, the abstention doctrine, absence of con-

stitutional due process violations, and the affirmative de-

fense of good faith. The United States District Court

granted petitioners’ motion for summary judgment on the

basis that respondents had failed to exhaust their admin-

istrative reimedies because they had not accepted the hear-

ing offered by the Board. Petitioners’ Appendix at A-2.

Respondents appealed the District Court order to the

United States Court of Appeals for the Ninth Circuit. On

December 23, 1983, the Court of Appeals issued its mem-

orandum opinion reversing the District Court decision and

remanding for further proceedings in the District Court.

The Court of Appeals ruled that exhaustion of adminis-

trative remedies was not required, citing Patsy v. Board

of Regents, 457 U.S. 496 (1982). The Ninth Circuit also

ruled as follows:

There are at the very least genuine issues of fact con-

cerning the nature of plaintiffs’ property interests in

5

their employment, the correlative procedural protec-

tions to which they were entitled and the extent to

which the Board’s offer of hearing satisfied them.

Memorandum opinion at 2; Petitioners’ Appendix at A-2.

Petitioners have now filed a petition for a writ of

certiorari seeking review of the memorandum opinion of

the Ninth Cireuit Court of Appeals.

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SUMMARY OF ARGUMENT

The petition for writ of certiorari should be denied

because a final judgment or decree has not been entered.

It is well established that a writ of certiorari should issue

only after a final judgment or decree. In the present ac-

tion, the Ninth Circuit held there were unresolved issues

of fact precluding summary judgment. Thus, there has

not been a final decree or judgment from the courts be-

low, and the petition for writ of certiorari should be denied.

From a substantive standpoint, the petition for writ

of certiorari should also be denied. The Ninth Circuit cor-

rectly held that respondents were not required to exhaust

state administrative remedies before initiating and pur-

suing an action filed pursuant to 42 U.S.C. § 1983 in fed-

eral court, relying upon the clear authority of Patsy v.

Board of Regents, 457 U.S. 496 (1982). The Ninth Circuit

then properly remanded for trial on the merits the issues

concerning the nature of respondents’ property interests

in their employment and the related procedural and sub-

stantive matters.

Petitioners’ reliance on Migra v. Warren City School

District Board of Education, — U.S. —, 76 L.Ed.2d 56

(1984) is also misplaced. The facts of the present action

are entirely different from those before the Court in

Migra v. Warren City School District Board of Education.

Respondents’ § 1983 action was filed before the state court

actions were filed. In addition, there was not a trial on the

merits in the state court damage actions. Therefore, the

Ninth Circuit Court of Appeals correctly rejected peti-

tioners’ arguments based on Migra v. Warren City School

District Board of Education.

._f>

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ARGUMENT

I. The Petition For Writ Of Certiorari Is Premature.

It is well established that a writ of certiorari should

issue only after a final decree. John Simmons Company

v. Grier Brothers Company, 258 U.S. 82 (1922) ; Hamalton-

Brown Shoe Company v. Wolf Brothers € Company, 240

U.S. 251 (1915); Panama Ratliroad Company v. Napier

Shipping Company, 166 U.S. 280 (1897). Indeed, the con-

cept of “finality” has always been a leading principle in

determining the availability of judicial review throughout

the federal system.

The Court has held that for purposes of an appeal to

the Supreme Court, “a decree is final when it terminates

the litigation between the parties on the merits of the case,

and leaves nothing to be done but to enforce by execution

what has been determined.” Heike v. United States, 217

U.S. 423 (1909); see also, Scofield v. National Labor Rela-

tions Board, 394 U.S. 423 (1969) Parr v. Umted States,

351 U.S. 513 (1955).

—E -

In Switzerland Cheese Association v. E. Horn’s Mar-

ket, 85 U.S. 23 (1966), the Court held that where summary

judgment is denied because of unresolved issues of fact,

the order is not appealable. Accord, United States v. Flor-

tan, 312 U.S. 656 (1941). Although both Switzerland Cheese

Association and Florian involve the question of whether

a district court decree was “final” for purposes of appel-

late review, the principles relied upon by the Court should

apply in the instant case.

In the present action, the Ninth Cireuit determined

that there were issues of fact that made the entry of sum-

mary judgment improper and remanded the action to the

District Court for further proceedings. Petitioners’ Ap-

pendix at A-2. Thus, the petition for writ of certiorari

should be denied.

II. No Prior State Court Litigation Precluded Determina-

tion Of The Federal § 1983 Claim.

Petitioners appear to be arguing that the litigation

in the state courts between petitioners and respondents

precludes respondents from pursuing the present action.

These are the same res judicata and collateral estoppel

arguments that were rejected below.

In no state court action was there a consideration of

the merits of respondents’ claims. The sole basis for the

trial court’s decision in the state court damage actions

was that respondents failed to exhaust their state admin-

istrative remedies. This ruling was affirmed by the Ari-

zona Court of Appeals. Petitioners’ brief at B-3. As the

Court held in Patsy v. Board of Regents, 457 U.S. 496

(1982), exhaustion, of state administrative remedies is

not a prerequisite to a § 1983 action in federal court. Thus,

no state court action between petitioners and respondents

operates to preclude the present action filed pursuant to

§ 1983.

The Ninth Cireuit examined both of the state actions

and concluded that the issues raised in the § 1983 action

were not encompassed within any state court litigation

between petitioners and respondents.

The recent decision by the Court in Migra v. Warren

City School District Board of Education, — U.S. —, 79

L.Ed.2d 56 (1984), does not compel a different result. In

Migra, the plaintiff brought suit in state court based upon

breach of contract and tort theories. The state court ac-

tion was tried on the merits to the court sitting without

a jury, and judgment was rendered in favor of plaintiff.

After the state court litigation was finally resolved, plain-

tiff instituted an action in the United States District Court

pursuant to 42 U.S.C. $1983 and 41985. This Court held

that the Ohio state law regarding claim preclusion applied

to the § 1983 action and remanded the case to the District

Court for further proceedings.

Here, the state action filed by the respondents was

dismissed for failure to exhaust administrative remedies;

therefore, there was never a consideration of the merits

of respondents’ claim. Respondents are not therefore pre-

cluded from pursuing the § 1983 action.

4)

—

CONCLUSION

The Ninth Cireuit summarily disposed of petitioners’

argument in memorandum opinion form.’ Petitioners’ mo-

tion for rehearing and for rehearing en bane were disposed

of with equal dispatch; the Ninth Circuit and this Court

have denied petitioners’ applications for stay of the man-

date. No basis, grounds or reasons exist for granting the

petition.

Respectfully submitted,

Wryston & Srrawn

By: Arruvr P. GreenFiELp

3101 North Central Avenue

Suite 1500

Phoenix, Arizona 85012

Counsel for Respondents

2See Rule 21, Rules of the United States Court of Appeals

for the Ninth Circuit.