# Petition — Dew v. City of Florence > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0337%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 936 ## Text 83-337 SUPREME COURT OF THE UNITED TERM 1983 NO. MIRIAM L. DEW, PETITIONER, Vs . THE CITY OF FLORENCE, RESPONDENT. Ott 2 Supre we Court. U.S. riLeD AUG 23 1983 ALEXAND=EP L STEVAS STATE =a PETITION FOR WRIT OF CERT TO THE SUPREME COURT IORARI OF THE STATE OF SOUTH CAROLINA RICHARD G. DUSENBURY 201 WEST EVANS STREET POST OFFICE BOX 555 FLORENCE, SOUTH (803) 669-6481 CAROLINA 29503 ATTORNEY FOR PETITIONER QUESTIONS PRESENTED FOR REVIEW 1. Did Petitioner have an "expec- tancy of employment" that amounted to a “property” interest entitled to con- stitutional due process protection? 2. Was Petitioner denied due process because Respondent failed to comply with the mandates of its own self-imposed procedures? 2 TABLE OF CONTENTS PAGE Questions Presented for Review 1 a TS a ee a 2 rr wr rere eee . . f(g lg 8k wl tll ls 4 Opinion Below . . . «© «© «© «© «© © «© © @ « 3 Jurisdictional Statement .....+. +e § Statutory Provisions Relating to the Jurisdiction of this Court .... 8 Constitutional Provisions Involved United States Constitution... 2 South Carolina Constitution. 10 South Carolina Statutes 1976 South Carolina Code of Laws Sections 5-13-90, et seq. Council-Manager Form of ; Government (City Manager Statute) .10 Sections 8-17-10, et seq. ate State Employee Grievance Procedure -+- Sections 8-17-110, et sec. County and Municipal Employees Grievance Procedure ...... .- «12 City of Florence Ordinance ...... -13 Statement of the Case ....+ ++ +s d§ Background Pacts . ..cisesesceeereee ov 0h? History of Petitioner's Grievance... 22 3 TABLE OF CONTENTS (CONT'D) Due Process Violations Argument GubeGion 2. ic ss) «. 2 6 # Sie. Question 2 Chtniuaian:y. 52 + «s/s oe * Appendix A: Opinion of South Carolina Supreme Court . Appendix 2B: Order of Judge George F. Coleman, dated May 30, 1980 Appendix C: South Carolina State Statutes se Cems teow eee Appendix D: Verbatim Excerpts from City of Florence Handbook . , Appendix E: Verbatim Excerpts from Transcript of Record ee Appendix F: Questions Argued in South Carolina Court Appeal . .. .« + « « « es Certificate of Servise TABLE OF AUTHORITIES Citations Statute sGames 2297 ~(3) Constitution O.S.C.A. Const. Fourteenth Amendment South Carolina Constitution Article I, Section 3 South Carolina Statutes Sections 5-13-90, et. seq. Sections 8-17-10, et. seq. Sections 8-17-1100, et. seq. Federal Cases Accardi v. Shaughnessy , .* .* Armstrong v. Manzo 350 U.S. 545, 552 65 §. Ct. 1187, 1191, 14 L. Ed. 2d 62,66 (1965) Arnett v. Kennedy 416 0.5. at 16/7 Athas v. United States F. Bishop v. wood Board of Regents v. Roth 7. . 564 Bunting v. City of Columbia 639 F. 2a 1090 (1981) Goldberg v. Kell 307 U.S. 254, 50 8. Ce. i043, 23 kL. Ed. 2d 287 Grannis v. Ordean 234 U.S. 309, 34 s. Ct. 779, 58 L.Ed. 1363 (1914) Greene v. Sas . ‘ (1959) Guerin v. Hicke 464 F. Supp. 34 (1979) Hortonville Joint School District v. Hortonville Educational Association U. . , ) In Re Murchison Game In Re Ruffalo 390 U.S. 544, 550, oe G. Gs: tease 1225-26 Jones v. United States ac Ghs 20 BES v. Zimmerman Bruck Co. U.S. 2) McKamey v. United States Id8 ct. Cl. 28, 458 F. 2a 47 (1972) McNeill v. Butz ve ° » sad (4th Cir. 1973) Morrisey v. Brewer 708 U.S. 4/1, 488-89 (1972) Perry v. Sindermann 408 U.S. 593 Robbins v. U. S. RR. Retirement Board 594 F. 2d 448 (Sth Cir. 1979) Satterfield v. Edenton- Chowan Board of Education F. eh Cir. 1975) Service v. Dulles 354 U0. S. 303 Thomas v. Ward 529 F. ed at 919 Vitarelli v. Seaton Uebe Bade Jar 540 3 L. Ed. 2d 1012 Vitek v. Jones 445 U.S. 480 (1980) Withrow v. Larkin o2i Us Os Sas 47 State Cases Donnon v. Civil Service Commission 3 Pa. Comwith. 366, 283 A. 2d 92 Gardner v. Repesky Pa. A. 2a 704 (1961) Phillips v. Board of Fire & Police Comm'rs of St. Louis 24 Ill. App. 34 242, 320, wR. 24 355 Schlesinger Appeal 4 Pa. = , ~- A. 2d 835 (1961) Sloan v. Whitlock Rich. / 1) State Ex Rel. Southern Railway v. Earle 66 S.c. 194 Still v. Lance 182 5.5. 24 403 OPINION BELOW The Opinion in Miriam L. Dew v. The City of Florence, Opinion No. 21930, was filed in the South Carolina Supreme Court on May 25, 1983, and is printed in Appen- aGix A hereto. JURISDICTIONAL STATEMENT Jurisdiction to entertain the petition for writ of certiorari is founded upon 28 U.S.C.A. 1257(3) as it is claimed that the Petitioner's rights guaranteed by the Four- teenth Amendment of the United States Constitution were violated by the Respondent City of Florence in terminating her employ- ment. STATUTORY PROVISIONS RELATING TO THE JURISDICTION United States Statutes Title 28 USC 1257 Final judgments or decrees rendered by the highest court of a State in which a decision could be had may be reviewed by the Supreme Court as follows: 9 (1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the deci- sion is against its validity. (2) By appeal, where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity. (3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Con- stitution, treaties or statutes of, or commission held or authority exercised under, the United States. CONSTITUTIONAL PROVISIONS INVOLVED United States Constitutional Provisions Fourteenth Amendment Section l. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No 10 State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, Or property, without due process of law; nor deny to any persons within its jurisdiction the equal protection of the laws. South Carolina Constitution Article I. Sec. 3. Privileges and immunities; due process; equal protection of laws. The privileges and immunities of citi- zens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (1970) (56) 2684; 1971 (57) 315.) South Carolina Statutes 1. Chapter 13. Council-Manager Form of Government. Section 5-13-90. Responsi- bilities of Manager. The Manager shall be 13 Sec. 3-17-160. Powers of city managers. (See Full Statute in Appendix) CITY OF FLORENCE ORDINANCE STATE OF SOUTH CAROLINA, COUNTY OF FLORENCE, RESOLUTION: WHEREAS, any modern organization with large numbers of employees needs a clearly written set of rules and regulations; and WHEREAS, a definite need has existed to revise said rules and regulations to maintain them current and in line with changing times; and WHEREAS, said revision has now been com- pleted by the City Manager and the necessary changes have been made to the extent that employees presently with the city and those who may be employed in the future will benefit by these rules and regulations; that in opinion of this Council said revision will also assist the city government in the employment of new 14 personnel when required in the future. Now, Therefore, BE IT RESOLVED, by the City Council of the City of Florence that the Personnel Rules and Regulations of the City of Florence and as presented to the City Council with the agenda for the March 27, 1978 meeting, be and they are hereby revised. Be it FURTHER RESOLVED that a copy be given to each present city employee so that he May be aware of the changes incorporated therein and to future employees to inform them of said benefits. Adopted this 27 day of March, 1978. CITY ORDINANCE Promulgating personnel rules and regulations of the City of Florence including formal Grievance Pro- cedures adopted March 27, 1978 pursuant to the Enabling Act of the State Legislature. (See Verbatim Excerpts from City of Florence Handbook in Appendix) 15 STATEMENT OF THE CASE Petitioner, formerly employed as Administrative Assistant to the City Manager of the Respondent City of Florence, brought a declaratory judgment action alleging that she was discharged by the City Manager in vio- lation of her rights under the due process clauses of the Fourteenth Amendment of the United States Constitution and Article I, Section 3 of the South Carolina Constitution. She based her claim on the further grounds that the Respondent City of Florence had failed to abide by its own self-imposed grievance procedures in discharging her. (Vitarelli doctrine) She asked that her dis- missal be declared illegal and that she be awarded damages for lost wages. Initially, she soughe reinstatement but later waived this relief. The trial judge ruled in favor of Petitioner, basing his decision on the grounds that the Respondent had failed to comply with its own rules and regulations governing the 16 removal of employees. Petitioner was awarded damages for lost wages from the time of her dismissal until the time she waived any claim to reinstatement. The trial judge also held that Petitioner was not deprived of a "liberty" interest nor was she possessed of a "property" interest which would entitle her to constitutional due process safeguards. Petitioner did not appeal from the trial court's ruling as to a liberty interest but asserted as an additional sustaining ground on appeal that she had an expectancy of employment amount- ing to a property interest entitled to due process protection. The South Carolina te @ . x 4 fu | municipality, remove any appointive officer or emplovee of the municipality (Emphasis added by the Court.) and £ix the salaries of such officers and employees, except as otherwise provided in this Chapter or prohibited by law ... (Emphasis added by Petitioner.) The Court also relied on the fact that the Employee Handbook permitted the City Manager to reject the decision of 25 implied contract the power of the City Manager to fire without cause. South Carolina reco- gnizes the existence of "implied agreements". Sloan v. Whitlock,13 Rich. 177 (1861). Although Section 8-17-140 of the 1976 South Carolina Code of Laws, authorizes the City Manager to reject the decision of the Grievance Committee and make an independent final decision, it should not be necessary to a decision in this case to decide the effect of that particular provision, inasmuch as the failure of Respondent to accord Petitioner her due process rights and its failure to comply with its own regulations Operate to make its attempt *o terminate her employment a nullity ab initio. This rule was cited in Athas v. United States, 597 F. 24 722 (1979), citing as standing for the same proposition Vitarelli v. Seaton,359 US 535; Service v. Dulles,354 US 363; Jones v. United States, 203 Ct. Cl. 544 (1974), McKamey v. United States,198 Ct. Cl. 28, 458 F. 2d 47 (1972). 56 Considering that Respondent fla- grantly deprived Petitioner of funda- mental due process rights - including exclusion from the hearing room while the witnesses against her were testi- fying - she in fact had no hearing in «ct he due process sense. The South Carolina Supreme Court glossed over these due process violations, holdin that she had no property right entitled to constitutional due process protection. Logan v. Zimmermann Bruck Co., 455 U.S. 422 (1982), addressed the question of the effect of the existence of State - procedures on Federal due process cases: "Each of our due process cases has recognized, either explicitly or implicitly, that because ‘minimum (procedural) requirements (are) a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the pre-conditions to adverse official action.' Vitek v. Jones,445 US 480 (1980)... Indeed, any Other conclusion would allow the State to destroy at will virtually any state-created property interest. The Court has considered and rejected such an approach. "'While the legis- lature may elect not to confer a ae property interest,...it may not consti- tutionally authorize the deprivation of such an interest, once conferred, with- out appropriate procedural safeguards... (T)he adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional tcerms'." Vitek v. Jones, 445 US at 490-491, N. 6, quoting Arnett v.Kennedy,416 US at 167. THE TRIAL JUDGE ON VITARELLI AND DUE PROCESS ISSUES: The trial judge, having ruled that Peti- tioner did not have a liberty or property interest entitled to constitutional protection, held that the City had not complied with its own self-imposed rules. Pertinent portions of his scholarly Order will be quoted at length. (Commencing at Page 26 of Order dated May 23, 1980). .--While the City of Florence is not required to afford procedural due process absent a constitutionally protected "liberty" or "property" interest, the City is bound by its rules. This obligation to comply with established rules applies even if the rules specify procedural safeguards which equal or 58 exceed those mandated by che Constitution. Service v. Dulles, supra; Vitarelli v. Seaton, supra. The quoted provisions of the Employee Handbook clearly reveal that a fair and equitable hearing before an impartial decision maker is contemplated. These promises of fairness and impartia- lity must be considered as a recognition of minimum standards of procedural decency, which may be equated with due process. See, Robbins v. U.S.R.R. Retirement Board, 594 F. 24 448 (5th Cir. 1979). The questions involved nere, ) e - e McElrov, supra,367 U.S. at 395; Goss v. Lovez,4l19 U.S. 365, 578; Fuentes v. Shevin, 407 U.S. 67, 82, 92. The contours of due process are determined by taking into account "the indivudual's stake in the decision at issue as well as the state's interest in a particular procedure for making it." Hortonville Joint School et v. Hortonville Education Associa- tion, 426 U.S. 482, 494; Joint Anti-Facist 139 Refugee Committee v. McGrath,supra; Euentes 3.$. at 167-68; Robbins v. U.S.R.R. Retire- ment Board, supra, 594 F. 2d at 452; See senerally, Note, "Specifying the rocedures Recuired by Due Process: Towards Limits on nterest Balancing," 88 Harv. L. Rev. 1510 (1975) and Friendly, "Some King of Hearing," 123 U. Pa. L. Rev. 1267 (1975). In Matthews v. Eldridce, 424 U.S. 319, 335, the Supreme ated that identification of the oO oO c ty ct wn ct specific dictates of due process generally requires consideration of three distinct First. the private interest that will be effected by the official action; second, the risk of an “arroneous de- privation of such interest through the procedures used, and the probable vaiue, if any, of additional or substitute pro- cedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the addi- tional or substitute procedural require- ment would entail. See, e.g., a v. Kelly, supra, 397 U.S., at 2 S$ 140 While the process which is due is determined by balancing the compet ing interests of the individual ane th state, certain elements or ingredients are regarded as the bulwarks of due pro- cess, and have, therefore, been considered essentially invariable when th protections of due process are applicable. In Greene V. McElroy, 360 U.S. 474, 496, (1959), the Supreme Court stressed the critical nature of the right to confront and test adverse witnesses: Certain principles have relatively immutable in our ju srudence. One of these is that where governmental action seriously injures an individual, an th reasonableness of she action depencs on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. See also, Robbins v. U.S.R.R. Retirement Board, supra,594 F. 24 at 452. In Fuentes v. Shevin, supra, 407 U.S. at 88, the Supreme Court, quoting from Baldwin v. Hale, 68 U.S. (1 Wall) 223, 233, asserted: 141 For more than a century the central meaning of procedural due process has been clear; "Parties whose rights heard; and in order that tney may enjoy that right they must fir otif: - The Fourth Circuit Court of Appeal has noted that in almost every instance where the termination decision turns on the tr falsity of disputed facts due process requires an opportunity to confront and cross-examine adverse witnesses. Thomas v. Ward, supra; McNeill v. Butz,480 F. 2a 314, 321 (4th Cir. Ct. 1973); See also, Goldberg v. Kelly, 397 U. S. 254. And a District Court sitting in Maryland stated: "When all other procedural safeguards are weeded cut because of pressing government interests, these ‘wo (notice and an opportunity to be heard) remain." Patterson v. Ramsey, 413 F. Supp. 523, 538 (D. Maryland 1976). Finally, courts have identified the ele- ments which constitute minimum procedural due process. These elements include: (1) Notice and specification of the charges, (2) oppor- tunity to be heard, (3) opportunity to confront accusers, and (4) an impartial tri- bunal. Morrisey v. Brewer, 408 U.S. 471, 488-89; Satterfield v. Edenton- Chowan Board of Education, 330 567 (4th Cir. 1975); Vance v. Chester County Board of School Trustees, 504 F. 2d 820 (4th Cir. 1974); Grimes vy. Nottoway County School Board, 462 F. 2a 650, 653 (4th Cir. 1972); Dixon v. Alabama State Board of Education,2934 FP. 24 150 (Sth Cir. 1961); Ferguson v. Thomas, 430 F. 2d 852 (Sth Cir. 1970). The few contexts in which the minimum elements of due process have not been applied have involved critical governmental interests such as the maintenance of order in prisons, Wolff v. McDonnell, 418 U.S. 539, the pro=- tection of society from anti-social acts which might be committed by parolees, Morrisey v. Brewer, supra, 408 U.S. at 483 (1972), and national security, Greene v. McElroy, supra. And even in cases 143 where the government's interest is one of extreme importance, the court has discounted its “weight” when a hearing would not seriously interfere with the state's ability to achieve its objective. See, Morrisey v. Brewer,supra, 408 U.S. at 483; Goss v. Lopez, supra,419 U. S. 565. Here, there is no critical govern- ment interest involved. Nor is the City's interest in performing its responsibilities effectively and efficiently threatened by ffording Plaintiff minimum due process at the post termination grievance hearing. At the time of the hearing, the Plaintiff was not employed by the City and was, therefore, no longer an obstacle if ever she was, to the implementation of the City Manager's plans or the efficient operation of the City Manager's office. At best, the City's interest is in minimizing the administrative burden imposed upon it by affording the Plaintiff minimum due process. But this is the very burden the City gratuitously accepted 144 ey of Florence Handbook, Grievance Circuit Court of Appeals said in a case involving the dismissal of two govern- ment employees is apposite here: (W)e conclude that the relative natures of the government function and the private interests do not permit the government to discharge these employees without providing notice and a hearing at which the employees can confront and cross- examine the government's informers. In both cases, the propriety of dismissal hinged strictl factual determinat evidence onsisted individual testimon these Manienais ari se a con- text where confrontation ‘and cross- examination are paradigmatically useful in discovering the truth.... We do not dispute that the govern- ment has a substantial interest in the efficient and orderly dis- charge of unsatisfactory employees. But this interest does not out- weigh the employee's interest in having an effective opportunity to challenge damning evidence.... Despite its concern for the efficient discharge of derelict employees, pe a ote oO nM’ no Fe ju ] en qt ry 145 the Department of Agriculture has created considerable procedural burdens for itself, even in cases such as these which involve non- civil service employees....The government expends considerable effort to provide a semblence of cue process: notice, hearing, appeal. It is evident that this system al- ready occasions considerable govern- mental inconvenience. The incremen- tal physical burden of presenting the accusing witnesses for cross-examina- tion upon the employee's timely and good faith request would neither be Crippling nor add a significant addi- tional burden.... McNeill v. Butz, supra, 480 F. 24 at 322-23. Similarly, in this case, there is no indi- Cation that the City's interest outweighed the Plaintiff's interest in being notified of the case against her and in having an effective opportunity to be heard and to chalienge che evidence against her. The City's interest does not excuse it, in meeting its obligation to afford "fair and equitable hearings," from affording the Plaintiff the traditional ele- ments of a due process hearing. Having concluded that the Plaintiff is entitled to at least minimal due process, I must, now, determine if the procedures aftorded her by the City provided "adequate notice, a specification of the charges against her, an opportunity to confront the witnesses against her and an opportunity to be neard in her own defense." Vance v. Chester County Board of Trustees, supra, 504 F. 2a at 824; Grimes v. Nottoway County School Board, supra, 462 F. 2d at 653. As a general rule, for notice to be constitutionally adequate, it must apprise the person, who is to be affected by the government action, of the charges against nim in such specifics and at such time as to permit meaningful preparation of a response. In Re Ruffalo, 390 U.S. 544, 550; In Re Gault, 387 U. S. 1. Although each case must be decided on its peculiar facts, Vance v. Chester County Board of Trustees, supra, 504 F. 2d at 824; Grimes v. Nottoway County School Board, supra,462 F. 2d at 653; Ferguson Vv. Thomas, supra, 430 F. 2d at 856, certain general guidelines exist. One such 147 guideline, applicable here, is that excessi- vely general charges are insufficient to satisfy due process. In In Re Gault, supra, for example, the Supreme Cours found a general charge of “delinquency” to be constitutionally inadequate. Here, the only notice of she charges against the Plaintiff was contained in the letter of termination from the City Manager to the Plaintiff. The grounds for her dismissal as set forth in the termination letter are as follows: "(1) Not making an effort to use proper discretion in the City Manager's office. (2) Not supporting and cooperating with th City Manager. (3) Insukordination. (4) Mis- representing facts concerning the City Mana- ger's decisions. (5) Defying warnings from the City Manager." To a large extent, these charges were founded upon inics™ a: on supplied to the City Manager by ocher C.:y employees and a newspaper reporscer. The identity of ubstance of their é : A 3 these indivicuals ana tne i » % = ~_-- mee - --« —s allegations relied upon Sy