Opposition — Lubin v. Crittenden Hospital Ass'n

NO. 83-969

In The

Supreme Court of the United States

October Term, 1983

i."

2 4

MILTON LUBIN,

Petitioner,

vs.

CRITTENDEN HOSPITAL ASSOCIATION, A Corpo-

ration; R. F. SCRUGGS; HUGH B. CHALMERS; J. F.

RIEVES, JR.; H. G. LANFORD, M.D.; E. W. BIGGER,

JR.; JOHN H. GOE; RALPH HILL; C. E. MORRISON,

JR.; SAM C. HUDSON; N. S. SECHREST; BILLY

WOOD; and, MRS. MARY ARNOLD,

Respondents.

——E

Ww

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

,—

Ww

RESPONDENTS’ BRIEF IN OPPOSITION

hi

Vw

JAMES A. JOHNSON, JR. J. C. DEACON

Spears, Sloan & Johnson _ Barrett, Wheatley, Smith & Deacon

P.O. Box 768 P.O. Box 4057

West Memphis, AR 72301 Jonesboro, AR 72403-4057

501-735-3270 501-932-6694

Attorneys for Respondents

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

ss

QUESTION PRESENTED

Should this Court review a decision of tle United

States Court of Appeals for the Eighth Circuit affirming 7

that the District Court had no jurisdiction under 42 U.S.C.

_ $1983 because the imposition of a probationary period

upon a Caucasian staff physician by a private hospital

association was not state action?

ii

TABLE OF CONTENTS

Pages

Question Presented i

Table of Authorities ii

Opinion Below 2

Jurisdiction 2

Reasons for Denying the Writ 2

I. The Opinion Is Not In Conflict With Applicable

Decisions Of This Court. 2

II. The Eighth Circuit’s Decision Is Not In Conflict

With Decisions Of Any Other Federal Courts

Of Appeal. 5

Conclusion 6

TABLE OF AUTHORITIES

CasEs:

Blum v. Waretsky, — U.S. —, 102 S. Ct. 2777 (1982)... 4

Briscoe v. Bock, 540 F.2d 392, 396 (8th Cir. 1976) ... 3,5

Burton v. Wilmington Parking Authority, 365 U.S.

715 (1961) 3, 4, 6

Chalfont v. Wilmington Institute, 574 F.2d 739 (3rd

Cir 1978) 5

Greco v. Orange Memorial Hospital Corp., 513

F.2d 873 (5th Cir.), cert. den. 423 U.S. 1000 (1975)... 3

Griffith v. Bell-Whitley Com. Action Agency, 614

F.2d 1102 (6th Cir.), cert. den. 447 U.S. 928 (1980)... 6

Hodge v. Paoli Memorial Hospital, 576 F.2d 563 “

(3rd Cir, 1978) ...... 5 |

| Jackson v. Metropolitan Edison Co., 419 U.S. 345 E

(1974) é ;

be '

wv ;

SK / 4 ¥ Sat Ne eae ha Nase JN

ORS ae Pe. (LIne AI tel Par ee ee Re ee e Ds ANP

iii

TABLE OF AUTHORITIES—Continued

Pages

Jackson v. Norton Children’s Hospitals, Inc., 487 —

F.2d 502 (6th Cir. 1973), cert. den. 416 U.S. 1000

(1974) 6

Lubin v. Crittenden Hospital Association, 713 F.2d

414 (1983) 2

Newsom v. Vanderbilt University, 653 F.2d 1100

(6th Cir. 1981) 6

O’Neill v. Grayson County War Memorial Hospital,

472 F.2d 1140 (6th Cir. 1973) 5

Rendell-Baker v. Kohn, — U.S. —, 102 S. Ct. 2764

(1982) 4

STarurTEs :

28 U.S.C. § 1254(1) 2

42 U.S.C. $1983 hes 5,6

Rugs Cirep:

Rule 17 .1.(a), Rules of the Supreme Court of the

United States

Rule 17 .1.(¢c), Rules of the Supreme Court of the

United States

NO. 83-969

In The

Supreme Court of the United States

October Term, 1983

, =

=e

MILTON LUBIN,

Petitioner,

vs.

CRITTENDEN HOSPITAL ASSOCIATION, A Corpo-

ration; R. F. SCRUGGS; HUGH B. CHALMERS; J. F.

RIEVES, JR.; H. G. LANFORD, M.D.; E. W. BIGGER,

JR.; JOHN H. GOE; RALPH HILL: C. E. MORRISON,

JR.; SAM C. HUDSON; N. S. SECHREST; BILLY

WOOD; and, MRS. MARY ARNOLD,

Respondents.

a

~~

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

C—O

/—

RESPONDENTS’ BRIEF IN OPPOSITION

Oo

Ww

Respondents, Crittenden Hospital Association, et al

(hereinafter “Crittenden Hospital” or “respondents”) re-

spectfully request that this Court deny the Petition for

Writ of Certiorari seeking to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit.

2

vw

OPINION BELOW

Contrary to the statement of Petitioner, the opinion

of the Eighth Circuit is reported as Lubin v. Crittenden

Hospital Association, 713 F.2d 414 (1983) ; it is reproduced

at Appendix B-3 through B-10 of the Petition. The opin-

ion of the United States District Court for the Eastern

District of Arkansas has not been reported; it is repro-

duced at Appendix A-1 through A-2 (sic) of the Petition.

sy

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1).

re

Ww

REASONS FOR DENYING THE WRIT

Petitioner requests that this Court issue a Writ of

Certiorari based on Rule 17(a) and (ce). An examination

of the alleged reasons for review shows clearly that the

Eighth Circuit opinion is not in conflict with decisions

either of this Court or the other Circuits.

I. The Opinion Below Is Not In Conflict With Applicable

Decisions Of This Court.

3

Although Petitioner claims that he is invoking Rule

17(c) and says that the Eighth Circuit decided a most im-

portant question of Federal Law which should be settled

by this Court (Petition, p. 13), he then ignores that asser-

tion and proceeds. to argue that, in fact, the Eighth Cir-

cuit opinion decided a federal question in a way that is in

conflict with applicable decisions of this Court. (Petition,

p. 15). Quite to the contrary, the opinion is in accord with

the decisions of this Court and the opinion relied upon

such precedents in affirming the District Court.

Petitioner first admits that the Eighth Circuit opinion

followed Jackson v. Metropolitan Edison Co., 419 U.S.

345 (1974), in finding that there was not a sufficiently close

nexus between the challenged action of the Hospital and

the state’s regulation of the institution. (Petition, p. 15).

He then goes on to suggest that if the Eighth Circuit

had followed Burton v. Wilmington Parking Authority, 365

U.S. 715 (1961), “it would have easily found that a symbio-

tic relationship existed between the Respondents and gov-

ernment sufficient to provide a basis: for finding State

Action.” He further criticizes the Eighth Cireuit. for com-

menting in its opinion that the “use of the symbiotic rela-

tionship test is limited generally to cases involving racial

discrimination.” (Petition, p. 15).

Burton did involve racial discrimination and the case

at bar does not. Other courts have also noted that the

doctrine of stat®*action in racial discrimination cases was

necessarily broadly drawn in order to implement Con-

gressional intent. See Footnote 3, Briscoe v. Bock, 540

F.2d 392, 396 (8th Cir. 1976); Greco v. Orange Memorial

Hospital Corp., 513 F.2d 873 (5th Cir.)s cert. den., 423

U.S. 1000 (1975).

4

The absence of racial discrimination is not the only

significant factual distinction between Burton and the

medical privileges probationary action taken by Critten-

den Hospital against Dr. Lubin. Even though there was

the usual state and federal regulation of health care and

participation in Medicare and Medicaid programs, as well

as local government ownership of the land and building,

the court observed that “the lease agreement affords full

and complete charge of the management and operation to

the Hospital.”

In Burton the parking authority profited from the ad-

mitted racial discrimination of the restaurant and the

parking authority became a joint participant and thus re-

sponsible for the discrimination because of the manner in

which it leased the public property. 365 U.S. at 726.

Jackson pointedly limited Burton to its specific facts,

just as Justice Clark, 13 years before, had suggested should

be the case. 419 U.S. at 358.

In the last two years this Court haus measured two sep-

arate fact situations in light of the symbiotic relationship

presented in Burton, and rejected the contention as a basis

for state action. Rendall-Baker v. Kohn, — U.S. —, 102

S. Ct. 2764 (1982); Blum v. Yaretsky, — U.S. —, 102 :

S. Ct. 2777 (1982). The Blum court recited the litany of

alleged state involvement and regulation, pointed out that

the State was not responsible for the decisions challenged,

held that the challenged activities “do not fall within the

ambit of Burton”, and bottomed its decision on Jackson. |

The Eighth Circuit correctly decided the question pre- x

sented in this casc in keeping with principles set forth é

in prior, applicable decisions of this Court. Petitioner

has not, and cannot, demonstrate that the decision of the

pA - -

ea eee ee

von 0. eae Gee Les

5

Eighth Circuit conflicts in any way with an opinion of this

Court so as to justify review by certiorari.

II. The Eighth Circuit’s Decision Is Not In Conflict With

Decisions Of Any Other Federal Courts Of Appeal

Petitioner claims that the Eighth Circuit decision,

which was in accord with the Fourth, Fifth, Seventh and

Tenth Circuits, is in conflict with the Third and Sixth Cir-

cuits. (Petition, p. 16). A review of the current decisions

of those two circuits demonstrates that petitioner is in

error.

The Third Circwt

Petitioner says that Chalfont v. Wilmington Institute,

574 F.2d 739 (3rd Cir. 1978) is in conflict but neither dis-

cusses the case nor gives any reasons for the claim. (Peti-

tion, p. 16). This is perhaps because Chalfont involved a

discharged employee of a public library and thus the court

was presented with a different issue.

The Third Circuit by its decision three months later

in Hodge v. Paoli Memorial Hospital, 576 F.2d 563 (1978)

did consider revocation of the staff privileges of a physi-

cian in a private hospital and, with similar facts before it,

concluded that the receipt of federal funds and state regu-

lation did not constitute state action user 42 U.S.C.

§ 1983. It listed the Eighth Circuit decision of Briscoe v.

Bock, 540 F.2d 392 (1976) as one of the circuits holding to

_ @ similar view.

The Siath Circuit

Ne Petitioner points to O’Neill v. Grayson County War

a Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) to sup-

: — his assertion that the Sixth Circuit is in conflict with

4 the Eighth and other Circuits. O’Neill was decided a year

6

before this Court’s 1974 decision in Jackson v. Metropoli-

tan Edison Co., supra, which formulated the nexus test on

which the Eighth Circuit relied in Briscoe and in the in-

stant case.

The Sixth Cireuit in Jackson v. Norton Children’s

Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973), cert. den.

416 U.S. 1000 (1974) where a physician claimed a 4 1983

violation against a private hospital, found that the

revocation of staff privileges did not constitute state ac-

tion.

Again in 1980, the Sixth Circuit, considering the prin-

ciples of both Burton and Jackson, found no symbiotic

relationship and an insufficiently close nexus to constitute

state action. Griffith v. Bell-Whitley Com. Action Agency,

614 F.2d 1102 (6th Cir.), cert. den. 447 U.S. 928 (1980).

See also Newsom v. Vanderbilt University, 653 F.2d 1100

(6th Cir. 1981).

It, therefore, seems clear that the Sixth Circuit is fol-

lowing the same guidelines and mandates of this Court as

the Eighth Circuit and that there is no conflict which justi-

fies review by certiorari.

ty

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

James A. JoHnson, JR.

Spears, Sloan & Johnson

P. O. Box 768

West Memphis, AR 72301

501-735-3270

J. C. Deacon

Barrett, Wheatley, Smith & Deacon

P.O. Box 4057

Jonesboro, AR 72403-4057

501-932-6694