Opposition Brief — Bellevue Fire Fighters Local 1604 v. City of Bellevue

Office-Supreme Court, U

| FILED

4, JAN 17 1985

No. 84-976

ALEXANDER L. STEW.

CLERK

In The

Supreme Court of the United States

October Term, 1984

ry

wv

BELLEVUE FIRE FIGHTERS LOCAL 1604,

INTERNATIONAL ASSOCIATION OF

FIRE FIGHTERS, AFL-CIO, CLC,

an unincorporated voluntary association;

RON PEDEE, and WILLIAM P. SPIETH,

Petitioners,

vs.

CITY OF BELLEVUE, a municipal corporation,

Respondent.

—

Vv

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

rs,

—

BRIEF OF RESPONDENT

IN OPPOSITION

ral

Vw

Ricwarp W. Evuiotr City oF BELLEVUE

Davis, Wricut, Topp, Riese Ricwarp L. ANDREWS

& JONES City Attorney

110 110th Avenue N.E. Scorr McKee

Suite 700 Assistant City Attorney

Bellevue, WA 98004 P.O. Box 90012

(206) 451-8686 Bellevue, WA 98009

(206) 455-6829

Attorneys for Respondents, City of Bellevue

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

QUESTION PRESENTED

Must a state court act on a party’s request for attor-

ney fees under 42 USC $1988, where relief was granted

solely under state law, and a lower court’s denial of a

Federal Constitutional claim was not reversed?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ££ _._._. aS

TARLE GE CON Te Oe cin eee ii

TABLE OF AUT reeks seve iis ill

STATEMENT OF THE CAS ee 1

ARGUMENT:

A. THE CIVIL RIGHTS ATTORNEY’S FEE

ACT DOES NOT AUTHORIZE AN AWARD

OF FEES WHERE NO RELIEF WOULD

BE GRANTED UNDER FEDERAL LAW... 3

1. The Federal Cases Involving Pendent

Claims Cited by Petitioners Are Easily

TENE, iicsececintencccnapanniianens 4

bo

The State Court Cases Cited are Also

Based on Substantial Constitutional Ques-

eee ERE a A A Camis oer rc om 6

3. Maher v. Gagne Provides no Criticism

of the Dees DS. 7

B. PETITIONERS’ CLAIM UNDER 42 USC

§ 1983 WAS PROPERLY DENIED. ........ 7

CONCLUSION ........ -cieisiaas tale lacaieaada aan 10

ill

TABLE OF AUTHORITIES

CasEs Page

Bellevue Fire Fighters v. Bellevue, 100 Wn.2d 748,

8k. LE Aree 3

Broadrick v. Oklahoma, 413 U.S. 601 (1973) 0. 8

Brown v. Hornbeck, 485 A.2d 900 (Mo. App 1983)........... 7

Davis v. Everett, 443 So.2d 1232 (Ala. 1983) 0... 6

Draper v. Town Clerk of Greenfield, 384 Mass. 444,

BS 5) nee ee 5, 8

Edward Kuhn v. National Association of Letter Car-

riers, 510 F.2d 390 (8th Cir. 1978) 5

Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L.

a heshanwinvabin ae 4,5

Kimbrough v. Arkansas Activities Association,

rn ee te Cae. bee) 4,6

Maher v. Gagne, 448 U.S. 122 (1980) cc cceccccesseseneeeee 7

Mawne v. Thiboutoi, 448 U.S. 1 (1980) 0. eases cree 7

Right to Choose v. B rne, 91 N.J. 207, 450 A.2d 925

{oe oak al ahaa ccomenanon 7

Robinson v. City of = 606 S.W.2d 460 (Mo.

App 1980) (pak 2s Le Sora a er ne OP ee 7

Seals v. Quarterly County Court, 562 F.2d 390 od Cir.

Tene cascalaseehitarinneetioaniani 5

Still v. Personnel Board of Jefferson County, 406

I i accord lana snes 6

United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct.

iro, oe came gee (1c) TTT. 4,6

iV

TABLE OF AUTHORITIES—Continued

Page

United Public Workers v. Mitchell, 330 U.S. 75 (1947) 8

United States Civil Service Commission v. National

Association of Letter Carriers AFL-CIO, 413 US.

548 (1973) Scent eM ar ae IEA ML Cee AIPA DD 8, 9

Wachsman v. City of Dallas, 704 F.2d 160 (sth

Cir. 1983) cert. demted 104 S. Ct. DBT neeececneccccnmeenencemenn 8,9

Williams v. Thomas, 692 F.2d 1032 (5th Cir. 1982) 0000.9

CONSTITUTIONAL PROVISIONS:

U. S. Constitution, amend. I el as

ae a TF anise ieee 1,6

STATUTES:

te Re or” eon einen oes enernnre nn 8

“MUAC +G0iay?) ———...._ 7

I I airs eee 7, 8, 10

TI, OI sii iinet 3, 6, 10

BREW CRG BID) aii ieee 1,2

MISCELLANEOUS :

Bellevue, Washington, City Code § 3.90.050 on 1

Id. § 3.90.050(B) 2

STATEMENT OF THE CASE

In October, 1981, the Petitioners herein commenced an

action in the Superior Court of the State of Washington

naming the Respondent, the City of Bellevue, a defendant

and challenging the validity of the City’s ordinance pro-

hibiting City employees from taking an active part in City

Council election campaigns, alleging that the ordinance

was in conflict with a state statute and violated sections

of the state constitution as well as the First and Four-

teenth Amendments of the U.S. Constitution. Petitioners

sought injunctive relief and, in their First Amended Com-

plaint, included a prayer for “reasonable attorneys fees

and damages in an amount to be proved at trial.” (First

Amended Complaint p. 7; Petition, p. 42a.)

Petitioners include a Bellevue firefighter, the labor

organization which represents the firefighters, and a Bel-

levue citizen who wished to receive political information

from City employees.

The challenged Bellevue City Code section, BCC

3.90.050, read in part as follows:

B. No city employee shall take an aciive part in the

political management or political campaign of a can-

didate for a position on the Bellevue City Council.

C. Nothing in this section shall prevent an employee

from fully exercising those rights to participate in

political activities granted by the provisions of RCW

[Revised Code of Washington] 41.06.250.

This ordinance was interpreted in a memorandum

from the City Manager to City employees, which is quoted

in the Appendix to the Petition herein, at 14a-1l5a.

The statute referred to explicitly grants certain rights

to public employees:

Employees of the state or any political subdivision

thereof shall have the right to vote and to express

their opinions on all political subjects and candidates

and to hold any political party office or participate

in the management of a partisan, political campaign.

Nothing in this section shall prohibit an employee of

the state or any political subdivision thereof from

participating fully in campaigns relating to consti-

tutional amendments, referendums, initiatives, and

issues of a similar character, and for nonpartisan of-

fices. RCW 41.06.250(2)

Petitioners’ request for a preliminary injunction was

heard and granted by Judge Jim Bates of the Superior

Court on October 15, 1981. On October 7, 1982, the case

was submitted on affidavits to Judge David Soukup of

that court. Judge Soukup ruled that, under the inter-

pretation given the ordinance in the City Manager’s memo,

there was no conflict with the state statute or the constitu-

tional provisions, and lifted the preliminary injunction.

(See Petition, pp. 28a-29a.)

Petitioners appealed to the Supreme Court of the

State of Washington. They again sought an interim in-

junction, which was denied; but on hearing the appeal

the court reversed the decision below in a brief order stat-

ing that BCC 3.90.050(B) was declared invalid. Peti-

tioners filed a cost bill, and an affidavit requesting award

of attorneys’ fees in the sum of $87,328.15. Respondent

filed a memorandum in opposition to the award of fees.

The State Supreme Court issued its full opinion on

January 12, 1984, denying fees because the decision was

based solely on state law. Bellevue Fire Fighters v. Belle-

vue, 100 Wn2d 748, 756, 675 P2d 592 (1984). Petitioners’

motion for reconsideration was denied, and they have

sought a Writ of Certiorari in this Court.

°

ARGUMENT

A. THE CIVIL RIGHTS ATTORNEYS FEE ACT

DOES NOT AUTHORIZE AN AWARD OF FEES

WHERE NO RELIEF WOULD BE GRANTED UNDER

FEDERAL LAW.

Respondent does not deny that attorney’s fees may

be granted under 42 U.S.C. § 1988 on a claim under state

law, where that claim arises from facts which would, or

probably would, merit relief under appropr.ate federal

law. It is Respondent’s position, however, that not every

complaint that alleges a constitutional violation gives rise

to an award of attorney’s fees; such a rule would ulti-

mately require, rather than avoid, needless determination

of issues from which courts currently abstain. If a mere

untried allegation were to suffice, every claim brought to

court would contain one for the sake of obtaining fees,

and economics would make sure that ali were litigated.

What is required instead is that the claim be ‘‘substan-

tial”. This avoids frivolous claims but allows a court to

grant the relief authorized by the Civil Rights Act without

necessarily reaching the merits of difficult constitutional

issues. Petitioners in this action cite a number of cases

where non-fee claims were joined with claims that were

“substantial”, or even were adjudged to be so; none of

these is authority for awarding fees in the case where

the civil rights claim is invalid, and has been adjudged

to be so.

1. The Federal Cases Involving Pendent Claims

Cited by Petitioners Are Easily Distinguished.

A Federal District Court granting relief on a pendent

state-law claim has already made a determination of

‘‘substantiality,” for the latter is a prerequisite of juris-

diction. See for instance, Kimbrough v. Arkansas Activ-

ities Association, 574 F.2d 423 (8 Cir 1978). Petitioners

cite this case on pp. 29-30 of their petition among ‘‘nu-

merous decisions of federal courts of appeal in which,

having never reached the substantial federal constitutional

claims because relief was granted on state law claims... .”

The District Court for the Eastern District of Arkansas

had ruled that the challenged regulations of the defendant :

corporation did uot actually prohibit the plaintiff from

participating in interscholastic football, and therefore it

did not reach his due process and equal protection claims.

The District Court denied his claim for attorney’s fees,

but the Court of Appeals reversed the denial and remand-

ed. The basis for the reversal is that the question of

‘‘substantiality” had already been answered:

Without the existence of a substantial federal claim,

no federal pendent jurisdiction over the non-federal

claim exists. Hagans v. Lavine, 415 U.S. 528, 536-539,

94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); United Mine

Workers v. Gibbs, 383 U.S. 715, 722-725, 86 S.Ct. 1130,

16 L.Ed.2d 218 (1966). Since the District Court in the

instant case invoked jurisdiction and disposed of the

ease on non-federal grounds, it implicitly made the

initial determination that the allegations of the com-

4)

plaint raised a substantial constitutional claim suffi-

cient to confer jurisdiction. See Hagans v. Lavine,

supra, 415 U.S. at 538, 94 S.Ct. 1872; Edward Kuhn v.

National Asscctation of Letter Carriers, 570 F.2d 757,

760 (8th Cir. 1978). We, therefore, conclude that the

requirements for a discretionary award of attorney’s

fees as set forth by the House Judiciary Committee

have been met.

Kimbrough, supra, 574 F.2d at 427. Sce also, Seals v.

Quarterly County Court, 562 F.2d 390, 392 (6 Cir. 1977)

(plaintiff’s federal constitutional claims “previously de-

scribed as ‘substantial’” by court); Williams v. Thomas,

692 F.2d 1032 (5 Cir. 1982) (federal claim denied by jury,

but under erroneous instruction).

Trial in a federal court of a case such as the one at

bar will always imply that a court has determined that a

substantial federal question is presented. A state court’s

decision not to award attorney’s fees does not necessarily

include such a ruling and is therefore not in conflict with

those decisions.

2. The State Court Cases Cited Are Also Based

On Substantial Constitutional Questions.

Petitioners have cited a number of state appellate

court decisions in which attorney’s fees have been awarded

to a prevailing party despite the fact that a 1983 claim was

not decided on its merits. Each of these, like the Federal

decisions, contains a holding, explicit or implicit, that the

Federal claim was a substantial one meriting fees.

In Draper v. Town Clerk of Greenfield, 384 Mass. 444,

425 N.E. 2d 333 (1981), the court awarded fees to a plain-

tiff who had challenged a state law under both State and

Federal equal protection grounds. The trial judge had

iia aia

decided the case on the basis of statutory interpretation,

but the Supreme Judicial Court of Massachusetts, in

awarding fees, focused on the substantiality of the con-

stitutional claim:

The single justice noted in his decision accompanying

the preliminary injunction that the State defendants

were ‘‘unable to articulate any intelligible purpose”

served by their reading of the statute, which, given

even minimal Fourteenth Amendment scrutiny, would

seem to raise some constitutional problems; further-

more, he noted that the State defendants conceded the

presence of ‘‘substantial constitutional questions.”

Draper, supra at 425 N.E. 2d 339.

Likewise, in Davis v. Everett, 443 So.2d 1232 (Ala. 1983),

the trial court found that the defendants had violated

the plaintiff’s equal protection rights.

It is not necessary here to equate equal protection

under the Constitution of 1901, Art. I, 44 1, 6, and 22,

with equal protection under the United States Consti-

tution for all purposes; however, the Alabama Consti-

tution necessarily embraces at least the minimal re-

quirements of the United States Constitution. De-

fendants violated plaintiff’s equal protection rights

under the Alabama Constitution. It may also follow

that plaintiff’s federal constitutional rights were vio-

lated; she alleged a substantial federal claim, which

was not dismissed, and ultimately prevailed on her

state constitutional claim. The Gibbs test was satis-

fied because both claims arose from a common nucleus

of operative facts. Accordingly, Mrs. Davis was a

prevailing party under § 1988.

Davis, supra, at p. 1236. Davis distinguishes another Ala-

bama case, Still v. Personnel Board of Jefferson County,

406 So.2d 860 (Ala. 1981), where attorney’s fees were

denied because a lower court judge, though granting relief

7

on state law grounds, specifically denied the federal claim.

See also Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d

925 (1982); Robinson v. City of Raytown, 606 S.W. 2d 460

(Mo. App 1980); Brown v. Hornbeck, 458 A.24 900 (Mo.

App 1983).

3. Maher v. Gagne Provides No Criticism Of The

Decision Below.

Both Maher v. Gagne, 448 U.S. 122 (1980), and the

case it follows, Maine v. Thiboutot, 448 U.S. 1 (1980), hold

that an award of attorney’s fees is proper when a plaintiff

prevails on a § 1983 claim, although a Federal Constitu-

tional claim is not reached; further, as the Petitioners

point out, the latter case so holds in the setting of an

action brought in state co rt, like the case at bar. How-

ever, the reason for those holdings does not appear in this

case.

In neither Maher nor Thiboutot were fees awarded for

prevailing on a state claim pendent to a substantial con-

stitutional claim. Instead, in each case the plaintiff had

succeeded in showing a violation of a section of the Social

Security Act, 42 U.S.C. § 602 (a)(7). The explicit holding

of the two cases is that the Federal claim, under the Social

Security Act, is one which can be brought under 42 U.S.C.

§ 1983, and one for which attorney’s fees can be awarded

under § 1988. These decisions have no relevance to a case

where the plaintiffs do not prevail on their § 1983 claims.

B. PETITIONERS’ CLAIM UNDER 42 USC § 1983

WAS PROPERLY DENIED.

The case at bar differs from those cited by the Peti-

tioners where fees were awarded after a finding that a

8

‘*substantial” constitutional claim existed. As discussed

above, that finding is either explicit (in the state court

eases) or implicit (in those opinions where Federal juris-

diction was premised on the existence of a ‘‘substantial’’

question).

Instead, this case is like Draper v. Town Clerk of

Greenfield, 384 Mass. 444, 425 N.E. 2d 333 (1981), dis-

cussed supra, p. 5, in that a lower court specifically de-

nied Petitioner’s Constitutional claim. The Supreme

Court of the State of Washington declined to disturb this

ruling on appeal, and thus the only existing judicial deter-

mination on the subject is that the § 1983 claim is invalid.

Award of attorney’s fees following such a determination

is supported by no authority which has been cited.

Relief on the Petitioners’ $1983 claim would have to

be denied under this Court’s decisions in United Public

Workers v. Mitchell, 330 U.S. 75 (1947), United States

Civil Service Commission v. National Association of Letter

Carriers AFL-CIO, 413 U.S. 548 (1973), and Broadrick v.

Oklahoma, 413 U.S. 601 (1973), for those decisions deal

with the same Constitutional challenges, but applicd to the

Hatch Act, 5 USC § 7324, which contains a similar prohibi-

tion against taking an active part in political management

or political campaigns. The regulation imposed by the

City of Bellevue applied to nonpartisan political cam-

paigns, because elections for City Council are by definition

nonpartisan; thus, they bore the same rational relation-

ship to their goals of preventing unwanted influence as the

rules against partisan campaigning upheld elsewhere. See

Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir 1983),

cert. denied, 104 S.Ct. 537.

9

Wachsman considered a challenge by Dallas police

and firemen to two sections of that city’s charter which

contained limitations similar to, and in some respects

broader than, those in the Bellevue ordinance. The court

declined the proffered distinction, that the Hatch Act cases

deal only with partisan politics, seeing the references to

partisan activity in Letter Carriers as a result of the focus

of that opinion on the nature of Federal electoral politics.

An across-the-board constitutional distinction for these

purposes between “partisan” and ‘‘nonpartisan” elec-

tions to local legislative and executive type offices

seerrs questionable on other grounds as well. We

doubt that such human traits as personal ambition,

greed, fear, and the like, on the one hand, and commit-

ment to principle unselfishness, honor, and similar

characteristics, on the other hand, are distributed

among such candidates and their supporters in sig-

nificantly different proportions according to whether

the election by which they are chosen is ‘‘partisan” or

“nonpartisan”. Wachsman, supra, at pp. 167-168.

Without the partisan-nonpartisan distinction to rely

upon, the plaintiffs in Wachsman saw the court uphold the

City’s ability to prohibit employees from making financial

contributions to City Council candidates, from making

public endorsements in certain situations, from circulating

(though not signing) endorsement petitions, from solicit-

ing contributions, and even from some participation in

other elections. The Petitioners in this action likewise

have no constitutional claim after the misleading partisan-

nonpartisan distinction is disposed of.

co)

10

CONCLUSION

The Supreme Court of the State of Washington de-

clared the City of Bellevue’s ordinance on political activity

by emp!oyees to be in conflict with a state law. In doing

so, it left untouched a determination by the trial court

that there was no violation of 42 USC § 1983. That deter-

mination is a correct one: if the Hatch Act is not unconsti-

tutional, neither was the Bellevue ordinance.

Attorney’s fees may be awarded under 42 USC § 1988

only where there is found to be a violation of § 1983, or a

‘‘substantial” claim. There is no authority that an invalid

claim, such as that of the Petitioners’, may be a ‘‘substan-

tial” one. No conceivable public policy could be advanced

by making an invalid claim a ‘‘substantiai” one. The deci-

sion of the Washington Supreme Court regarding the

award of attorney’s fees is not in conflict with a decision

of this court, or any state or federal court.

The petition for certiorari should be denied.

Respectfully submitted,

Ricuarp W. KEuiorr

Davis, Wricut, Topp, Riese & Jones

Ricuarp L. ANDREWS

City Attorney

Scort McKerg

Assistant City Attorney

Attorneys for Respondent

City of Bellevue

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