Record and brief — Oklahoma City v. Tuttle

SUPPLEMENTAL

BRIEF

©

No. 83-1919

IN THE

Supreme Court of the United States

Octoper Term, 1984

Tae Crry or OxLaHomMa Ciry,

Petitioner,

Vv.

Rose Marie TurTt xe,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

AND SUPPLEMENTAL BRIEF FOR RESPONDENT

Cart HucHes*

MicHagEL Gassaway

Hughes, Nelson & Gassaway

1501 N. Classen, Suite 200

Oklahoma City, Oklahoma 73106

(405) 528-2300

Attorneys for Respondent

J. LeVonne CHAMBERS

Eric SCHNAPPER

NAACP Legal Defense &

Educational Fund, Inc.

99 Hudson Street

New York, New York 10013

(212) 219-1900

Of Counsel

*Counsel of Record

No. 83-1919

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

_

THE CITY OF OKLAHOMA CITY,

Petitioner,

Ve

ROSE MARIE TUTTLE,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

— ——— ES

MOTION FOR LEAVE

TO FILE SUPPLEMENTAL BRIEF

=

Respondent hereby moves this Court,

pursuant to Rule 35.6, for leave to submit

the annexed brief, and in support thereof

states as follows:

» &4 «

At the oral argument in this action a

dispute arose as to whether the petitioner

had objected to the jury instructions in

the manner required by Rule 51. In

response to questions from the Court,

counsel for petitiner did not assert that

the statements of counsel contained in the

trial transcript met the requirements of

Rule 51. Rather, he asserted that a

specific and sufficient objection had

earlier been made off the record at an

instruction conference with the trial

judge.

This representation had never

heretofore been made by counsel for

petitioner in either this Court or the

lower courts. The accuracy of that

representation is critical to, if not

dispositive of, this appeal, since without

a sufficient objection this Court would

lack authority to consider the correctness

of the instruction at issue.

- iii -

Respondent has lodged with the Court

an affidavit of respondent's trial counsel

regarding the off the record conference

referred to by counsel for petitioner, and

seeks leave to submit this brief setting

forth her views on this new procedural

problem.

Respectfully submitted,

CARL HUGHES *

MICHAEL GASSAWAY

Hughes, Nelson & Gassaway

1501 N. Classen, Suite 200

Oklahoma City, Oklahoma 73106

(405) 528-2300

Attorneys for Respondent

J. LeVONNE CHAMBERS

ERIC SCHNAPPER

NAACP Legal Defense &

Educational Fund, Inc.

99 Hudson Street

New York, New York 10013

(212) 219-1900

Of Counsel

* Counsel of Record

TABLE OF AUTHORITIES

Case Page

Albemarle Paper Co. v. Moody,

422 OeSe 405 (1975) *eeeeeeeenenee 9

American Motors Sales Cor-

portation v. Semke, 384

F.2d 192 (10th Cir. 1967) ....6. 5

City of Los Angeles v. Lyons,

461 u.S. 95 (1983) *eeeeeeeneteeeeee Qa

Great-West Life Assurance

Co. v. Levy, 382 F.2d 357

(10th Cir. 1967) ccccccccccccsesse 4

Monell v. New York City Dept.

of Social Services, 436

U.S. 658 (1978) eeeeeeeeeeeeeetee 7,8,9

Owen v. City of Independence,

445 U.S. 622 (1980) wescceeccees 8,9

Rizzo v. Goode, 423 U.S. 362

(1976) WTTTTITITITITITITITITI LL. iL kL.

Schever v. Rhodes, 416 0.S.

232 (1974) se eeeeneeeeerfceeeereesestese#seee 9

Rules

Rule 51, Federal Rules of

Civil Procedure ..cccecccceseesiiy,2,4,5

Supreme Court Rule 35.6 weccccscees i

No. 83-1919

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

THE CITY OF OKLAHOMA CITY,

Petitioner,

Ve

ROSE MARIE TUTTLE,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

SUPPLEMENTAL BRIEF FOR RESPONDENT

In our principal brief we noted that

counsel for petitioner had failed to make,

with reaard to the instruction reaqardina

the evidentiary siaqnificance of a single

constitutional violation, an objection

=

which satisfied the requirements of

Clarity and specificity established by

Rule 51. (R. Br. 44-45, 45 n.62).

Petitioner did not file a reply brief.

When this matter arose at oral arqument,

counsel for petitioner did not contend

that what was said on the record at trial

was sufficient under Rule 51. (See Tr.

693). Rather, counsel for petitioner

asserted that a legally sufficient

objection had been made off the record at

an earlier instruction conference with the

trial judge. Petitioner urged that this

Claimed off the record objection satisfied

the reauirement of Rule 51, or made

petitioner's position sufficiently clear

as to give meanina to the otherwise

unintelligible on the record statement.

Counsel for respondent have lodged

with the Court an affidavit of respon-

dent's trial counsel describing the

instruction conference with Judge West.

e3-«

According to that affidavit no objection

was ever made at that conference to the

"single violation" instruction or to any

other instruction subsequently presented

to the jury. The affidavit states that,

on the contrary, petitioner's lead

counsel, Richard Mahoney, expressly aareed

to the court's proposed instructions at

that conference.

The representation made in this Court

on behalf of petitioner was offered by

Burck Bailey. Mr. Bailey, however, was

not at the instruction conference, and he

did not indicate on whom he had relied in

reporting to the Court that an off the

record objection had been made. Mr.

Bailey's apparent error, and the exceed-

ingly obscure nature of the statement that

appears on page 693 of the transcript, may

both have occurred because a third

attorney for respondent, Dan Brummitt, the

o @@

attorney who made that statement, may not

have been present at the instruction

conference itself.

This Court should decline peti-

tioner's invitation to engage in specula-

tion regarding how the trial judge might

have understood Mr. Brummitt's admittedly

confusina if not incomprehensible state-

ment. Rule 51 requires a party to state

"distinctly the matter to which he objects

and the grounds of his objection" in order

to avoid the need for such appellate

exegesis or cryptography. (Emphasis

added). The tenth circuit court of

appeals has expressly admonished attorneys

in that circuit that they cannot rely

either on remarks in chambers conferences!

Or on arguments made at some prior stage

' Great-West Life Assurance Co. v. Levy, 382

. ’ : t if. .

— 2

of the proceedings,” but must comply with

Rule 51 wy making a specific and clear

objection on the record to any disputed

instructions.

The importance of such specificity

and clarity is demonstrated by the

ambiquity which still characterizes

petitioner's position. It is unclear

whether petitioner is contending in this

Court (1) that a plaintiff must prove both

the existence of a policy and the exis-

tence of a series of violations, (2) that

proof of a series of violations is the

only way to establish the existence of a

policy, (3) that the particular violation

proven here would, without other proof, he

insufficient to establish the existence of

a relevant muncipal policy, (4) that the

Plaintiffs here failed to offer any

credible evidence of a policy, except for

2 american Motors Sales Corporation v.

Somke, 302 F-3d 192, 198 (Toth Cir~

T9367).

the proof of a single violation, or (5)

that no single constitutional violation,

regardless of the circumstances or the

position of the perpetrator, could ever

support an inference of the existence of a

city policy. Only if the statement on

page 693 had the latter meaning might it

be sufficient to preserve an objection to

the single incident instruction. But

there is simply no way of knowing on the

present record whether that is the

argument intended by Brummitt or whether

that is what the trial court understood

Brummitt to mean.

The Court also inauired at oral

argument whether a finding of muncipal

liability based on adequate training and

supervision was precluded by Rizzo v.

Goode 423 U.S. 362 (1976). Whatever the

merits of this issue, it is not one

preserved or even raised by petitioner's

below. The trial iudge expressly

—

instructed the jury that liability could

be based on a policy of failing to provide

3 and

adequate training or supervision,

petitioner did not voice even an unintel-

liqible objection to that instruction. On

the contrary, petitioner expressly

acknowledged in its pre-trial brief that

the municipal liability could be grounded

on a citv's training and supervision

policies.“ Neither in the court of

appeals nor in this Court has petitioner

disavowed that position.

The unobjected to instruction was

clearly correct. Monell imposes liabilitv

on a city for a constitutional violation

3 J.A. 43-44,

4 Trial Rrief of Defendant, p. 3:

"{[A] showing of reckless or

non-existent training must be

affirmatively shown, The affirma-

tive showing of grossly negligent

or reckless training must then be

shown to be the causal link of

Plaintiff's damages."

caused by “a qovernment's policy", 436

1u.S. at 694, not "a government's policy

other than a training policy."> The

issues raised by Rizzo are significantly

different than those which arise under

Monell. In Rizzo the plaintiff sued only

individual muncipal officials, not the

city of Philadelphia itself; the standard

for municipal and individual liability

under section 1983 are clearly different.

Compare Owen v. City of Independence,

5 Monell read Rizzo to have held "that the

_™mere right to control without any control

or direction having been exercised and

without any failure to supervise is not

enough to support §1983 liability." 436

U.S. at 694 n.58. That holding is clearly

inapplicable to a case such as this in

which the plaintiff claimed both that

there was “a failure to supervise" and

that the citv did indeed exercise “control

or direction” over the training program.

In Owen v. City of Independence this Court

noted with approval chat One of the

effects of potential municipal liability

under Monell would be "to increase the

attentiveness with which officials at the

higher levels of government supervise the

conduct of their subordinated ™ a45 U.S.

622, 652 n.36 (1980) (Fmphasis added).

supra with Scheuer v. Rhodes, 416 U.S. 232

(1974). The plaintiffs in Rizzo sought

sweepina injunctive relief which would

have required the federal courts to

"supervise the functioning of the police

department,” 423 U.S. at 380, a proposed

remedy which this Court cancluded dis-

regarded important principles of federa-

lism. Id. at 378-80. Rizzo itself

emphasized that the standards which a

plaintiff must meet to obtain injunctive

relief under section 1983 were different

and more stringent than those applicable

to an action for damages. Id. at 378; see

also City of Los Angeles v. Lyons, 461

U.S. 95 (1983). The prospect of substan-

tial damage awards may well provide the

spur or catalyst which leads a city to

reevaluate policies that cause constitu-

tional violations, cf. Albemarle Paper Co.

v. Moody, 422 U.S. 405, 417-18 (1975), but

such awards, unlike the injunction sought

@ 90 «

in Rizzo, do not directly restrict the

city's “latitude in the dispatch of its

own internal affairs." Rizzo v. Goode,

423 U.S. at 379.

CONCLUSION

For the above reasons the decision of

the tenth circuit should be affirmed. In

light of the question which has now arisen

as to whether the disputed instruction was

obiected to at the off the record con-

ference, it may be appropriate to remand

this case for a resolution of that factual

issue.

Respectfully submitted,

CARL HUGHES *

MICHAEL GASSAWAY

Hughes, Nelson & Gassaway

1501 N. Classen, Suite 200

Oklahoma City, Oklahoma 73106

(405) 528-2300

Attorneys for Respondent

@ 44 «

J. LeVONNE CHAMBERS

ERIC SCHNAPPER

NAACP Legal Defense &

Educational Fund, Inc.

99 Hudson Street

New York, New York 10013

(212) 219-1900

Of Counsel

* Counsel of Record