Petition for Writ of Certiorari — Independent School District No. 196 v. Cybyske

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| Office -Supreme Court, U.S.

FILED

AUG 31 1984

ALEXANDE® L. STEVAS,

CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

Independent School District No. 196,

Rosemount-Apple Valley, Minnesota,

et al.,

Petitioners,

vs.

Lynne E. Cybyske,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

James E. Knutson*

David S. Bartel

Knutson, Flynn & Hetland, P.A.

345 Cedar Bldg., Suite 800

St. Paul, Minnesota 55101

Telephone: (612) 222-2811

Attorneys for Petitioners

*Counsel of Record

QUESTIONS PRESENTED

1. Whether the Minnesota Supreme

Court erred in holding, contrary to

Singleton v. Wulff and its progeny, that

Respondent Lynne Cybyske had standing to

assert a violation of the associational

freedom of her non-party spouse.

2. Whether Respondent's First

Amendment freedom of association inclu-

des, vicariously, the political beliefs

and associations of her non-party spouse.

TABLE OF CONTENTS

Page

Opinions Below ...cccececcvees 2

Jurisdiction ...ccrccccccccsece 2

Constitutional and Statutory

Provisions Involved ........... 3

Statement of the Case ......e.. 5

Reasons for Granting

the Petition ..crwcccccccccvces 15

Conclusion ..ccccccccccsccccece 2€

Appendix A e@eeeeaeveveeveee eevee e eee A-1

Appendix B e@eeeevveveeeeee eee e208 B-1

TABLE OF AUTHORITIES

Cases: Page

Ashwander v. TVA,

297 U.S. 288 (1936) wcccccccccces 22

Baker v. Carr,

369 U.S. 186 (1962) eeeeeev eee eee 23

Barrows v. Jackson,

346 U.S. 249 (1953) ccccccccccess 24

Bates v. City of Little Rock,

361 U.S. 516 (1960) ..ceceeeeeees 19

Elfbrandt v. Russell,

384 U.S. 11 (1966) eeeeeee#es#8ee2e#38e#8e 12

Flast v. Cohen,

392 U.S. 83 (1968) cccccsccceces 24

Gibson v. Florida Legislative

Investigation Committee,

372 U.S. 539 (1963) wcccccccceees 19

Holden v. gi

169 U.S. 366 (1898) ...ccccccccces 23

McGowan v. Maryland,

366 U.S. 420 (1961) wwcccececeees 24

Mt. Healthy City

School District v. Doyle,

429 U.S. 274 (1977) eeeeee7#2e#@ee#eee#2e#8e#8e#e 15

NAACP v. Alabama,

377 U.S. 288 (1964) @eee0e3ee25eoe#8¢e8¢ee#e#es 20

Cases: Page

NAACP v. Alabama,

357 U.S. 449 (1958) eeeeevevnevee eee 19

NAACP v. Button,

377 U.S. 415 (1963) wcccccccceces 20

Shelton v. Tucker,

364 U.S. 479 (1960) ccccccccccee 20

Sherer v. Waier,

457 F. Supp. 1039

(W.D. Mo. 1978) eeeeoeeenee ee ee eee 24

Singleton v. Wulff,

428 U.S. 106 (1976) ..cceeeeeeeee 16,17,

18,22-24

Sullivan v. Meade Independent

School District No. 101,

530 F.2d 799 (8th Cir. 1976) .... 12

Sweezy v. New Hampshire,

354 U.S. 234 (1957) wccccceeceees 19

Constitution, statutes and rules:

U.S. Const. Amend. [I ...ccceceees 4

U.S. Const. Amend. XIV ...eeeeees 4

42 U.S.C. §$ 1983 wcccccccccceeeee 4°5,7

Minn. R. Civ. Pe. 12 ceccccccceees 9

Minn. R. Civ. P. 56 eeeeeeee eee ee 4

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

Independent School District No. 196,

Rosemount-Apple Valley, Minnesota, et

al. ,*

Petitioners,

vs.

Lynne E. Cybyske,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

Petitioners respectfully request the

Supreme Court of the United States to

issue a Writ of Certiorari to review the

judgment and opinion of the Minnesota

*The other parties to this case are

Petitioners Lee Droegemueller, indivi-

dually and as Superintendent of

Independent School District No. 196,

Ruth Randall, individually and as

Supreme Court entered and filed in this

proceeding on April 6, 1984.

OPINIONS BELOW

The Opinion of the Minnesota

Supreme Court, reported at 347 N.W.2d

256, appears in Appendix A. The Order

and Memorandum of the Dakota County

District Court (the court of original

jurisdiction), which is unreported,

appears in Appendix B.

Director of Personnel of Independent

School District No. 196, and Robert

Keeton, individually and as Director of

Elementary Education of Independent

School District No. 196.

Independent School District No. 196

is a public corporation as defined by

section 122.02 of Minnesota Statutes.

pin been created by the Minnesota

Legislature, it is a political sub-

division of the state and it has no

parent, subsidiary or affiliate cor-

porations,.

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JURISDICTION

The judgment of the Minnesota

Supreme Court was entered and filed on

April 6, 1984. Petitioners’ Application

for an Extension of Time within which to

file a Petition for a Writ of Certiorari

was granted by an Order signed by

Justice Blackmun dated June 25, 1984,

which gave Petitioners until and

including September 3, 1984 to file this

Petition. This Petition was filed by

that date.

The judgment of the Minnesota

Supreme Court having become final,

United States Supreme Court jurisdiction

is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The First Amendment to the

Constitution of the United States

provides:

Congress shall make no law

- « « abridging the freedom of

Speech .. . or the right of

the people peaceably to

assemble, and to petition the

Government for a redress of

grievances.

Sections 1 and 5 of the Fourteenth

Amendment to the Constitution of the

United States provide:

Section 1. ....- WNo

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 person

within its jurisdiction the

equal protection of the laws.

Section 5. The Congress

shall have power to enforce, by

appropriate legislation, the

provisions of this article.

Title 42, section 1983 of the United

States Code provides:

Every person who, under

color of any statute, ordi-

nance, regulation, custom, or

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usage, of any State or

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Columbia, subjects, or causes

to be subjected, any citizen of

the United States or other per-

son within the jurisdiction

thereof to the deprivation of

any rights, privileges, or

immunities secured by the

Constitution and laws, shall be

liable to the party injured in

an action at law, suit in

equity, or other proper pro-

ceeding for redress ....

STATEMENT OF THE CASE

Respondent Lynne E. Cybyske

initiated this civil action against

Petitioners in the Dakota County

District Court (trial court of ori-

ginal jurisdiction) during June of

1981. Respondent claimed that

Petitioners had infringed upon her

First Amendment right to freedom of

association under the United

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States Constitution. Respondent

also claimed that Petitioners had

violated state discrimination laws,

that she had been deprived of her

right to freedom of choice in

marriage in violation of the

Fourteenth Amendment to the United

States Constitution, and that

Petitioners had engaged in a civil

conspiracy to deprive Respondent of

her civil rights. In her prayer

for relief, Respondent sought con-

pensatory damages, punitive dama-

ges, attorneys’ fees and an

injunction to order the school

district to hire her as a public

school teacher.

Only the freedom of association

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claim remains at issue in this pro-

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having dismissed Respondent's state and

other federal constitutional claims. As

to that freedom of association clain,

Respondent's complaint alleged that

the "actions of defendants in

refusing to hire Ms. Cybyske

because of her relationship to her

husband infringe on her right to

freedom of association in violation

of the First and Fourteenth

Amendments to the United States

Constitution and 42 U.S.C. § 1983."

(Complaint @ 24.)

Respondent had been employed by

Petitioner Independent School District

No. 196 as a teacher during the

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1979-1980 school year. At that time she

was employed as a substitute to replace

another teacher who was on a leave of

absence. Her employment expired at the

end of that school year.

After her employment expired, a

vacancy arose in Independent School

District No. 196 for another

teaching position for the 1980-1981

school year. Respondent applied

and was interviewed for that posi-

tion along with several other

applicants. Someone else was hired

for that position.

During the 1979-1980 and 1980-1981

school years, Respondent was married to

Daniel Cybyske. Daniel Cybyske was a

member of the school board (the

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elected governing body of a school

district) in a neighboring school

district. He had been elected to that

position in May of 1979. Respondent

alleged that her husband had

"pro-teacher” political views, and that

she was not hired because of her hus-

band's views. Daniel Cybyske is not and

has never been a party to this action.

After extensive discovery,

Petitioners brought a motion in the

trial court for summary judgment or

dismissal of all of Respondent's claims

pursuant to Minn. R. Civ. P. 12 and 56.

Petitioners alleged, inter alia, that

Respondent was seeking to remedy the

alleged violations of her non-party

spouse's associational freedoms and had

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no standing to do so. Thereafter,

Respondent brought a motion to amend her

complaint to add Daniel Cybyske as a

named plaintiff in the action.

On February 25, 1983, the Honorable

George H. Hoey, Judge of District Court,

issued his Findings and Order (reprinted

in Appendix B). Judge Hoey dismissed

Respondent's complaint and he denied

Respondent's motion to amend her

complainz.

Respondent then appealed the trial

court's decision to the Minnesota

Supreme Court. By its decision of April

6, 1984 (reprinted in Appendix A), the

Minnesota Supreme Court affirmed the

trial court on all issues and claims

except one. The one exception was the

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Minnesota Supreme Court's reversal on

the issue of infringement of

Respondent's First Amendment right

to freedom of association under the

United States Constitution. In its

opinion the Minnesota Supreme Court

concluded that there may have been

an infringement upon Respondent's

right to freedom of association due

to Daniel Cybyske's political

views. See 347 N.W.2d at 262;

Appendix at A-26 to -27.

The Minnesota Supreme Court

first recognized that Respondent's

associational freedom extended to

her right to associate with her

husband who was exercising his

First Amendment right to free

speech:

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If the failure to hire Lynne

was indeed based on her hus-

band's membership and known

Opinions as a member of a

neighboring school board, Lynne

Cybyske's associational

freedoms were thereby compro-

mised. "The Constitution

affords * * * a right of asso-

ciation with other persons for

a variety of purposes."

Sullivan, supra, 530 F.2d at

804 (citations omitted).

Surely, the right to associate

with another person for the

purpose of marriage is a basic

right. Where the public

employer discriminates against

a job applicant because the

employer dislikes the activi-

ties of the applicant's spouse,

particularly where that spouse

is only exercising his or her

first amendment rights in the

performance of public service

as a school board member, it

would seem that the job appli-

cant's associational freedoms

have been impaired. Cf.

Elfbrandt v. Russell, 384 U.S.

11, 86 S.Ct. 1238, 16 L.Ed.2d

321 (1966) (loss of public

employment for membership in

Communist party violates

freedom of political

association).

347 N.W.2d at 262; Appendix at A-25

to -27. Nowhere in its opinion did

the Minnesota court intimate that

Respondent was exercising her right

to express or advance political

views. Only Daniel Cybyske was

exercising the right to speak on

matters of public interest.

The Minnesota Supreme Court was

careful to point out that

Respondent had not been denied her

right to marry:

In this case, the defen-

dants' refusal to hire

Lynne Cybyske did not deny

her the right to marry; it

did, however, dllegedi>

discriminate against her

because of her particular

choice of marital partner.

347 N.W.2d at 263; Appendix at A-29.

The court then went on to expand

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freedom of association to encompass a

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First Amendment "rights-in-marriage"

claim:

What plaintiff is really

seeking is a "rights-in-

marriage" constitutional claim.

We see no need, the federal

constitutional law being as

undeveloped as it is, to

establish, at least in this

case, a new rights-in-marriage

claim, and we decline to do so.

To the extent there might be

any such claim we think it is

already merged in the constitu-

tional freedom of association

claim which we have here

recognized.

347 N.W.2d at 263; Appendix at A-30 to

-31.

Finally, the court concluded that

Respondent had asserted a freedom of

association claim based on her allega-

tion that she was not hired to be a

public school teacher as a consequence

of Daniel Cybyske's political views:

Plaintiff-appellant has made a

sufficient showing that a

genuine factual dispute exists

as to whether her husband's

activities were a "substantial"

or "motivating" factor in her

nonhiring by the school board,

and at this stage of the pro-

ceedings there also appears to

be a factual dispute as to

whether the school district

would not have hired plaintiff

even in the absence of her hus-

band's activities. See Mt.

Healthy City School District v.

Doyle, 429 U.S. 274, 287, 97

S.Ct. 568, 576, 50 L.Ed.2d 471

(1977). We hold, therefore,

that the trial court erred in

ae summary judgment on

plaintiff's section 1983 claim

for deprivation of her consti-

tutional right of freedom of

association.

347 N.W.2d at 263; Appendix at A-31 to

-32.

REASONS FOR GRANTING THE PETITION

This case presents an important

question concerning the potential

liability of a state political sub-

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division for violating a prospective

teacher's First Amendment right to

freedom of association. By holding that

Respondent had standing to raise a claim

based on her husband's right to freedom

of association, the Minnesota Supreme

Court's decision conflicts with the

United States Supreme Court's doctrine

of standing. See Singleton v. Wulff,

428 U.S. 106, 113-14 (1976).

In this case Respondent has not

alleged any interference with "her"

right to associate with others,

including her husband, for the advan-

cement of beliefs or ideas. She has

claimed no interference with her own

right to express pro-teacher or pro-

union views, nor has she alleged any

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discrimination or interference relating

to her activity with any teacher organi-

zation or union. Rather, she claims a

violation of freedom of association

based on the allegation that Petitioners

deprived her of employment because of

her husband's political views.

Precedent established by the United

State Supreme Court and other federal

courts does not give Respondent standing

to allege violations of her non-party

spouse's constitutional rights. See

Singleton v. Wulff, 428 U.S. at 113-14.

The holding of the Minnesota Supreme

Court expands Respondent's right to

freedom of association to create new

constitutional "rights-in-marriage" that

do not exist.

Dawe

Even assuming for purposes of argu-

ment that such a claim does exist, the

grant of standing to sue for vindication

of a non-party spouse's rights is in

clear conflict with Singleton v. Wulff.

Also, assuming for purposes of argument

that Respondent in fact was not hired

because of the political views and asso-

ciations of her husband, the questions

become, first whether Respondent has

Standing to raise her non-party spouse's

constitutional claims, and second,

whether the decision not to hire

Respondent because of her husband's

political views and associations can

constitute a deprivation of "her"

freedom of association.

The United States Supreme Court has

Sh ee RRS me

nee

long recognized the right of "freedom to

engage in association for the advan-

cement of beliefs and ideas," and that

this right will apply "whether the

beliefs sought to be advanced by asso-

ciation pertain to political, economic,

religious or cultural matters." NAACP

v. Alabama, 357 U.S. 449, 460 (1958);

accord, Gibson v. Florida Legislative

Investigation Committee, 372 U.S. 539,

555 (1963) (right protects "free trade

in ideas and beliefs"); Bates v. City of

Little Rock, 361 U.S. 516, 523 (1960)

("it is now beyond dispute that freedom

of association for the purpose of

advancing ideas and airing grievances is

protected"); Sweezy v. New Hampshire,

354 U.S. 234, 250 (1957) (“every citizen

shall have the right to engage in poli-

tical expression and association"); see

NAACP v. Alabama, 377 U.S. 288, 307

(1964); NAACP v. Button, 371 U.S. 415,

430 (1963); Shelton v. Tucker, 364 U.S.

479, 486 (1960).

But in this case Respondent has not

even alleged that she associates with

her husband for the advancement of any

belief or idea. Rather, it is her hus-

band, a non-party, who seeks to advance

beliefs and ideas. Because Respondent

has not alleged that "she" has been

deprived of a right to associate for

the advancement of a belief or idea,

Respondent has no claim for violation

of "her" freedom of association under

the Constitution.

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Perhaps Respondent views the

marriage relationship itself as being a

sufficient associational interest. But

she has not alleged that this rela-

tionship has as its purpose the advan-

cement of any belief or idea, nor has

the United States Supreme Court

recognized the marriage relationship

for the purpose of freedom of asso-

ciation.

It is true, as the Minnesota

Supreme Court recognized below, that

Respondent does have a constitutional

right to marry. But she has not been

deprived of that right, and that right

is no longer at issue in this pro-

ceeding. 347 N.W.2d at 263; Appendix

at A-29.

In essence, Respondent is invoking

her husband's right to freedom of asso-

ciation as her own. But the rules of

standing do not permit Respondent to

attempt to vindicate another person's

constitutional rights in this

proceeding.

As the Court observed in Singleton

v. Wulff, 428 U.S. 106 (1976):

Federal courts must hesitate

before resolving a controversy,

even one within their constitu-

tional power to resolve, on the

basis of the rights of third

persons not parties to the

litigation. The reasons are

two. First, the courts should

not adjudicate such rights

unnecessarily, and it may be

that in fact the holders of

those rights either do not wish

to assert them, or will be able

to enjoy them regardless of

whether the in-court litigant

is successful or not. See

Ashwander v. TVA, 297 U.S. 288,

345-348, 56 S.Ct. 466, 482-83,

80 L.Ed. 688 (1936) (Brandeis,

J., concurring) (offering the

standing requirement as one

means by which courts avoid

unnecessary constitutional

adjudications). Second, third

argon ony themselves usually will

e the best proponents of their

own rights. The courts depend

on effective advocacy, and

therefore should prefer to

construe legal rights only when

the most effective advocates of

those rights are before then.

The holders of the rights may

have a like preference, to the

extent they will be bound by

the courts’ decisions under the

doctrine of stare decisis.

See, e.g., Baker v. Carr, 369

U.S. 186, 204, 82 S.Ct. 691,

703, 7 L.Ed.2d 663 (1962)

(standing requirement aimed at

"assur[ing] that concrete

adverseness which sharpens the

presentation of [the] issues

upon which the court so largely

depends"); Holden v. Hardy, 169

U.S. 366, 397, 18 S.Ct. 383,

390, 42 L.Ed. 780 (1898)

(assertion of third parties’

rights would come with "greater

cogency” from the third parties

themselves). These two con-

siderations underlie the

Court's general rule:

"Ordinarily, one may not claim

standing in this Court to vin-

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dicate the constitutional

rights of some third party."

Barrows v. Jackson, 346 U.S. at

255, 73 S.Ct. at 1034. See

also Flast v. Cohen, 392 U.S.

at 99 n. 20, 88 S.Ct. at 1952;

McGowan v. Maryland, 366 U.S.

420, 429, 81 S.Ct. 1101, 1106,

6 L.Ed.2d 393 (1961).

Id. at 113-14 (plurality opinion); cf.

id. at 122-31 (four Justices, dissenting

in part, adopting a more narrow view of

standing).

Under this rule, Respondent lacks

standing to assert her husband's consti-

tutional rights. For this reason the

Minnesota Supreme Court erred in finding

that Respondent could assert a freedom

of association claim »ased upon her hus-

band's associational interests. See

Sherer v. Waier, 457 F. Supp. 1039, 1047

(W.D. Mo. 1978) (mother lacks standing

how

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to assert deprivation of daughter's

rights).

Respondent's husband, Daniel

Cybyske, could have chosen to be a party

plaintiff at the inception of this liti-

gation. But he apparently chose not to

do so, and nothing prevented him from

joining in the litigation at that time.

Because he is not a party his right to

freedom of association should not be

adjudicated through the claims of a

third person.

The Minnesota Supreme Court erred in

permitting Respondent to maintain a

freedom of association claim based on

the allegation that she was not hired as

a result of her husband's political

views. Because Respondent has not

alleged that she is being deprived of

the right to associate with others for

the advancement of ideas or beliefs, she

has no claim for violation of her First

Amendment rights.

The result of the Minnesota Supreme

Court's decision is that every time a

person is denied employment, that person

can bring a constitutional claim based

on the identity, occupation or politi-

cal views of his or her spouse. This

goes far beyond the reach of either the

constitutional right to freedom of asso-

ciation or the right to freedom of

choice in marriage.

CONCLUSION

Based upon the foregoing, the

Petition for a Writ of Certiorari should

be granted.

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August 3l , 1984

Respectfully submitted,

By: se EEN rere

J s E. utson*

David S. Bartel

Knutson, Flynn & Hetland, P.A.

345 Cedar Bldg., Suite 800

St. Paul, Minnesota 55101

Telephone: (612) 222-2811

Attorneys for Petitioners

*Counsel of Record

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’ Ses

STATE OF MINNESOTA

IN SUPREME COURT

C9-83-593

Dakota County Simonett, J.

Dissenting in part and

concurring in part,

Wahl & Yetka, JJ.

Lynne E. Cybyske,

Appellant,

vs. 3 Endorsed

Filed April 6, 1984

Independent School Wayne Tschimperle

District No. 196, Clerk of

Rosemount-Apple Appellate Courts

Valley, Minnesota,

et al.,

Respondents.

SYLLABUS

1. A person who is not hired for a

teaching position because of the pro-

teacher views of her husband, a member

of a neighboring school board, does not

have a claim for marital status discri-

mination under the Minnesota Human

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Rights Act. She has, however, made a

showing of a cause of action under 42

U.S.C. § 1983 for deprivation of her

constitutional right of freedom of

association sufficient to defeat a sun-

mary judgment motion.

2. The trial court did not err in

disallowing plaintiff's motion to amend

her complaint.

Affirmed in part and reversed in

part.

Considered and decided by the court

en banc without oral argument.

OPINION

SIMONETT, Justice.

The plaintiff teacher claims she

was not hired by the defendant school

district because of "martial status"

discrimination and in violation of her

constitutional rights. The trial court

granted summary judgment to the school

district. We reverse dismissal of the

constitutional claim for deprivation of

the right to freedom of association but

otherwise affirm.

Plaintiff-appellant Lynne E.

Cybyske was hired by defendant-

respondent Independent School District

No. 196 (Rosemount-Apple Valley) as a

long-term substitute teacher for the

1979-80 school year, teaching art and

fifth grade at the Westview Elementary

School. When this job expired in June

of 1980, Lynne applied for another

teaching position that was open in the

Rosemount-Apple-Valley system, and had

an apparently favorable initial inter-

view for the position of fifth grade

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teacher at the Diamond Path Elementary

School. Lynne, however, did not get the

job. Instead, the school district hired

another woman for the position, alle-

gedly on the grounds the other applicant

had a stronger background in art and

appeared to be more student-oriented.

Lynne then sued the school

district. She claimed that the reason

she was not hired was because she was

married to Daniel Cybyske, and that the

school district did not like her hus-

band's “pro-teacher" views. In the

spring of 1979, before Lynne had been

hired for the substitute teaching posi-

tion, her husband Daniel had been

elected a member of the school board of

the neighboring Burnsville School

District. Apparently Daniel had been

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elected with strong teacher support in

the Burnsville district and, as a school

board member, became a vocal, controver-

sial advocate for "a bigger voice" for

teachers in school district decision-

making. While a school board member,

Daniel was paid by the Minnesota

Education Association to conduct two

seminars for teachers on how to elect

pro-teacher candidates to school boards.

Plaintiff Lynne Cybyske's complaint

against the Rosemount-Apple Valley

School District and three of its admi-

nistrators alleged discrimination on the

basis of marital status in violation of

the Minnesota Human Rights Act, Minn.

Stat. §§$ 363.01-.14 (1982). She also

alleged that the discrimination

infringed on her rights to freedom of

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association and freedom of choice in her

marital relationship, in violation of 42

U.S.C. § 1983 and the first and four-

teenth amendments to the Federal

Constitution. Extensive discovery

followed the filing of the complaint.

In November 1982, the trial court heard

defendants’ motion for summary judgment.

At that time Lynne moved to amend her

complaint to add her husband Daniel as

an additional party plaintiff to include

his claim for violation of his first

amendment right to free speech. The

trial court denied this motion to amend,

and it granted the summary judgment

motion. This appeal follows.

The trial court granted summary

judgment on the grounds that there were

no genuine issues of material fact and

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that plaintiff's complaint had "failed

to allege actionable marital status

discrimination under either State or

Federal law." Clearly, there was a

genuine factual dispute as to whether

plaintiff had not been hired because her

husband entertained political views at

odds with the employer school district.

Consequently, the issues presented here

are: Assuming plaintiff's version of

the facts is correct, does refusal of a

school district to hire a teacher

because of her husband's pro-teacher

attitudues constitute marital status

discrimination under the Minnesota Human

Rights Act? Secondly, does such refusal

violate plaintiff's martial rights or

freedom of speech and association under

the Federal Constitution? Other issues

raised by plaintiff-appellant are

whether summary judgment was premature

and whether it was error to deny amend-

ment of her complaint to include the

husband's claim.

We consider first plaintiff's claim

under our Human Rights Act. Minn. Stat.

§ 363.03, subd. 1 (1982), reads in part:

Except when based on a

bona fide occupational quali-

fication, it is an unfair

employment practice:

x *

(2) For an employer,

because of race, color, creed,

religion, national origin,

sex, marital status, status

with regard to public

assistance, membership or

activity in a local con-

mission, disability, or age,

(a) to refuse to hire or

to maintain a system of

employment which unreasonably

excludes a person seeking

employment; or

A-8

fo oe

against a person with respect

to his hire, tenure, compen-

sation, terms, upgrading, con-

ditions, facilities, or

privileges of employment.

(Emphasis added.)

While “marital status" is not a

protected class under Title VII,! it is

included in many state human rights

acts. Some states have construed the

term narrowly, holding that it refers to

the status of the job applicant, namely,

whether that person is single, married,

separated, divorced, or widowed.2 Thus

refusal to hire a person because that

person is married would be unlawful

‘Federal Civil Rights Act of 1964,

tit. VII, § 701, Pub. L. No. 88-352, 78

Stat. 241, 253-55 (codified as amended,

42 U.S.C. § 2000(e) (1976)).

2k. -, Prince George's County v.

Greenbelt Homes, Inc., 40 Md. App. 314,

43T A. 7a 745 (TOBT) (refusal to permit

unmarried couple to live in a coopera-

A-9

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SSR ue cake TPE RR eee Rass EER RNY

discrimination. Other states have

construed the term "marital status" more

tive housing development was not marital

Status discrimination); Thomson v.

Sanborn's Motor Express, Inc., 154 N.J.

uper. _ aa Aebd 33 CApp. Div. 1977)

(employer's anti-nepotism rule was not

marital status discrimination); In re

Manhattan Pizza Hut, Inc. v. New York

ate Human ts ea ard,

he . one : N.Y.8.2d

961 (1980) (anti-nepotism rule was not

marital status discrimination).

A-10

broadly, holding that it also encon-

passes the identity or situation of the

job applicant's spouse.3 Under this

view, an employer may not discriminate

because of who the applicant's spouse is

or what that spouse does. This court

adopted a broad construction of marital

status in Kraft, Inc. v. State, 284

N.W.2d 386 (Minn. 1979). There we held

that a company rule prohibiting the

full-time hiring of more than one member

of an immediate family was unlawful

marital status discrimination under our

3E.g., Thompson v. Board of

Trustees, Mont. , 627 P.2d 1229

anti-nepotism rule invalid);

Washington Water Power Co. v.

Washington State Human Rights

Commission, 91 Wash.2d 62, 586 P.2d 1149

A-11

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Human Rights Act. We acknowledged we

were giving a broad interpretation to

marital status, stating:

We reject the view that

“marital status," while it

denotes the fact that one is

or is not married, does not

embrace the identity or

situation of one’s spouse.

Since respondent does employ

married, single and divorced

individuals, to hold otherwise

would condone discrimination

against a portion of a pro-

tected class, i.e., job appli-

cants already married to

full-time Kraft employees.

[Citations omitted.] To do

so would ignore the broad pro-

hibition against arbitrary

classifications embodied in

the Human Rights Act and would

elevate form over substance.

248 N.W.2d at 383 (emphasis added).

In Kraft, we held, absent a bona

fide occupation qualification, that the

employer could not discriminate against

a job applicant because of what his or

her spouse was doing--which in Kraft

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was working full time for the same

employer. The question in this case is

whether that holding should be extended

to prohibit discrimination against the

plaintiff job applicant because of what

her spouse was doing, namely, advocating

"disloyal" pro-teacher views while a

board member of another school district.

In other words, is it "marital sta-

tus"

discrimination under our Act to

retaliate against one spouse because of

the political views or associations of

the other spouse? The school district

answers no, relying on State Division of

Human Rights ex rel. Howarth v. Village

of Spencerport, 78 A.D.2d 50, 434

N.Y.S.2d 52 (1980). There the mayor

fired his secretary because of public

dissatisfaction with the secretary's

A-13

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husband, the tax assessor, who had made

unpopular tax assessments. The lower

New York Appellate Court pointed out

that it was just as likely the secretary

would have been fired if the tax

assessor had been her father, brother,

or other relative. In other words, the

New York court reasoned the plaintiff's

claim did not arise from marital status

but from political retaliation. It

should be noted, however, that New York

is committed to the narrow view of the

term marital status as referring only to

the condition of the employee being

married. In re Manhattan Pizza Hut,

Inc. v. New York State Human Rights

Appeal Board, 51 N.Y.2d 506, 415 N.E.2d

950, 434 N.Y.S.2d 961 (1980) (upholding

an anti-nepotism rule).

A-14

In Kraft we said that marital sta-

tus includes the "identity or situation"

of one's spouse. We did not, however,

elaborate on what was meant by “identity

or situation." Human nature being what

it is, people have their likes and

dislikes. An employer may dislike an

employee's spouse for a variety of

reasons, but it seems unlikely the

legislature intended any kind of

disliking to give rise always to a

A-15

discrimination lawsuit.4 It is signifi-

cant, for example, that section 363.03,

41n Marital Status Discrimination:

An Amorphous Prohibition, 54 Fla. 5.J.

217 CT OBOY the author, John-Edward

Alley, lists six areas where at least

some courts have indicated a willingness

to find marital status discrimination by

employers: (a) where employees are

required to be either single or married;

(2) anti-nepotism rules; (3) refusal to

hire unwed mothers; (4) refusal to hire

women with dependents while hiring men

with dependents; (5) the hiring of

married couples only; and (0) requiring

female employees to change their last

names upon marriage.

We have fw. 4 no case extending

marital status discrimination to

employees in a political retaliation

setting.

A-16

subd. 1, does not prohibit discrimina-

tion on the basis of political beliefs

or status, although it does proscribe

discrimination for creed or religion.5

If the question before us is

whether the “political status" of one's

spouse is protected under our Human

Rights Act, the answer is no.

Plaintiff-appellant seeks to evade this

result by rephrasing the question. She

SMinn. Stat. § 363.03, subd. 1(2)

(1982), also prohibits employment

discrimination for “membership or acti-

vity in a local commission." "Local

commission," however, is narrowly

defined by statute to include only those

agencies ‘created * * * for the purpose

of dealing with discrimination * * *,"

Minn. Stat. § 363.01, subd. 24 (1982).

It does not include membership on a

neighboring school board.

A-17

argues that she did not get the teaching

job simply because she was married to

Daniel Cybyske; that the discrimination

lies not in the unpopularity of her hus-

band with the defendant school district

but in the fact that her husband's

“identity” or "situation" is imputed to

her. Since this imputation is based

solely on the marriage relationship

itself, there is marital status discri-

mination under the Act.

We can concede the plausibility of

plaintiff's argument, but it proves too

much. To adopt plaintiff's argument

would mean that any employer bias of

predilecton towards a spouse which is

imputed to the employee, whether or

substance or not, would subject the

employer to a lawsuit. We do not think

A-18

the legislature had this in mind.

Nor do we think Kraft holds dif-

ferently. Kraft quite properly struck

down an anti-nepotism rule as marital

status discrimination. The company rule

provided that a person would not be

hired where the applicant's spouse was

already an employee. An anti-nepotism

rule is just another way of saying that

an employer refuses to hire a married

couple. Put this way, the rule is a

direct attack on the husband and wife as

an entity and is contrary to the

“legislative judgment [that] reflects

the protected status the institution of

marriage enjoys in our society." Kraft,

284 N.W.2d at 388. Also, in Kraft, we

said for the employer to employ others

who were married, single, or divorced

A-19

but not those married to a spouse

already employed by the company, was an

arbitrary classification. In our case

here, however, no distinct invidious

classification emerges.

We adhere to our broad construction

of marital status as enunciated in

Kraft; i.e., in determining whether

marital status discrimination exists,

the identity and situation of the spouse

is an important factor. We apply this

approach, however, in the context of

construing a statute to effectuate

legislative intent. The legislature did

not intend to proscribe a particular

political posture, whether of an

employee or of the employee's spouse, in

the Human Rights Act. Nor do we think

the term marital status should be

A-20

construed to include what the legisla-

ture excluded. Here the alleged imme-

diate reason for the discrimination is

not directed at the institution of

marriage itself, at least not with the

same directness and closeness as in

Kraft. We hold, therefore, that plain-

tiff Lynne Cybyske po not have a cause

of action for earttel status discrimina-

tion under our Human Rights Act.

Il.

The next issue is whether appellant

Lynne Cybyske has a cause of action

under 42 U.S.C. § 1983 against the

defendant school district and its admi-

nistrators for infringement of her right

to freedom of choice in marriage and to

freedom of association under the first

and fourteenth amendments to the Federal

A-21

Constitution. We hold that plaintiff-

appellant has, in the current posture of

this case, established a constitutional

claim sufficient to defeat defendants’

motion for summary judgment.

While Lynne Cybyske's nonhiring was

not based on any set rule or regulation,

and though she had no property right to

be hired by the school district, she may

prevail if she can establish that the

decision of the public employer not to

hire her was made because of her exer-

cise of constitutionally protected

rights and freedoms. See Mt. Healthy

City School District Board of Education

v. Doyle, 429 U.S. 274 (1977); Burris v.

Willis Independent School District,

Inc., 713 F.2d 1087 (Sth Cir. 1983)

(both cases involving nonrenewal of the

A-22

contracts of untenured teachers).

The alleged deprivations in this

case were to Lynne Cybyske's freedom of

association and freedom of choice in

marriage under the first and fourteenth

amendments. These claims are in some

respects similar to the claims in

Sullivan v. Meade Independent School

District No. 101, 530 F.2d 799 (8th Cir.

1976). There a teacher was discharged

midterm as incompetent to continue

teaching because she insisted on cohabi-

tating with a single man. The trial

court dismissed her section 1983 action

and, on appeal, the eighth circuit

affirmed. The appellate court, however,

acknowledged probable infringement of

the teacher's rights of privacy and

association, but at the same time

A-23

recognized the state's vital concern in

maintaining “a properly moral scholastic

environment." 530 F.2d at 804, quoting

Andrews v. Drew Municipal Separate

School District, 507 F.2d 611, 614 (5th

Cir. 1975), cert. dismissed, 425 U.S.

559 (1976). The eighth circuit

explained that the teacher's rights were

not absolute and when they conflicted

with the state's legitimate concerns, "a

balance must be struck." Id. at 804,

citing Pickering v. Board of Education,

391 U.S. 563 (1968). The court,

however, did not attempt to strike the

balance; instead, it found a "good

faith" exception to section 1983

liability of the school board under

Wood v. Strickland, 420 U.S. 308 (1975).

The "good faith" exception applied in

A-24

Sullivan was further explained and

limited by the United States Supreme

Court in Owen v. City of Independence,

445 U.S. 622 (1980), where it was held

that a municipality could not assert the

good faith of its officers as a defense

where neither policy nor tradition at

the time of the enactment of section

1983 justified such immunity. See also

Trotman v. Board of Trustees of Lincoln

University, 635 F.2d 216 (3d Cir.

1980), cert. denied, 451 U.S. 986 (1981).

If the Sullivan dictum has merit, it

would seem that Lynne Cybyske could have

an enforceable action against the school

district, even assuming a good faith

exception might exist to shield the

district administrators. If the failure

to hire Lynne was indeed based on her

A-25

husband's membership and kiown opinions

as a member of a neighboring school

board, Lynne Cybyske's associational

freedoms were thereby compromised. "The

Constitution affords * * * a right of

association with other persons for a

variety of purposes." Sullivan, supra,

530 F.2d at 804 (citations omitted).

Surely, the right to associate with

another person for the purpose of

marriage is a basic right. Where the

public employer discriminates against

a job applicant because the employer

dislikes the activities of the appli-

cant's spouse, particularly where that

spouse is only exercising his or her

first amendment rights in the perfor-

mance of public service as a school

board member, it would seem that the job

A-26

applicant's associational freedoms have

been impaired. Cf. Elfbrandt v.

Russell, 384 U.S. 11 (1966) (loss of

public employment for membership in

Communist party violates freedom of

political association). To avoid “guilt

by association," the association would

have to be disavowed. If the nonhiring

is based not on any imputation of views

but rather in retaliation against the

spouse of the job applicant, the attack

on the job applicant's associational

rights is only that much more evident.

Of course, a teacher's associational

freedom can be compromised in the school

setting if outweighed by an appropriate

concern of the public employer. See,

e.g., Givhan v. Western Line

Consolidated School District, 439 U.S.

A-27

410, 451 n.4 (1979) (institutional

efficiency); Norbeck v. Davenport

Community School District, 545 F.2d 63

(8th Cir. 1976), cert. denied, 431 U.S.

917 (1977) (maintaining discipline and

coworker harmony); Sullivan, supra

(maintaining proper moral and scholastic

environment). On the record before us,

however, there is no indication that

Daniel Cybyske's activities on the

neighboring school board would have any

impact on his wife's effectiveness as a

teacher for the defendant

Rosemount-Apple Valley School District.

As to the claimed infringement on

freedom of choice in marriage, "[t]he

freedom to marry has long been

recognized as one of the vitai personal

rights essential to the orderly pursuit

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of happiness * * *." Loving v.

Virginia, 388 U.S. 1, 12 (1967). In

this case, the defendants' refusal to

hire Lynne Cybyske did not deny her the

right to marry; it did, however, alle-

gedly discriminate against her because

of her particular choice of marital

partner. A similar challenge was raised

in Keckeisen v. Independent School

District 612, 509 F.2d 1061 (8th Cir.),

cert. denied, 423 U.S. 833 (1975), where

the eighth circuit upheld the validity

of a school district's policy of not

employing married couples in

administrator-teacher situations.

Balancing the “right to marriage" claim

against the employer's concern to pre-

vent conflicts of interest and favori-

tism, the eighth circuit concluded the

A-29

school district's anti-nepotism rule was

not an impermissible infringement on

individual constitutional rights. The

court noted, however, that "[wlere the

right to marriage claim not so atte-

nuated by the fact that marriage itself

is not the subject of the School Board's

policy--i.e., were the right more

directly involved--then we should

perhaps, reach a different result." Id.

at 1065. In our case plaintiff's right-

to-marriage claim is no more directly

involved than it was in Keckeisen, but

at the same time the strong offsetting

public purpose for the employer's

actions, which was present in Keckeisen,

is missing here.

What plaintiff is really seeking is

a "rights-in-marriage" constitutional

A-30

claim. We see no need, the federal

constitutional law being as undeveloped

as it is, to establish, at least in this

case, a new rights-in-marriage clain,

and we decline to do so. To the extent

there might be any such claim we think

it is already merged in the constitu-

tional freedom of association claim

which we have here recognized.

Plaintiff-appellant has made a suf-

ficient showing that a genuine factual

dispute exists as to whether her hus-

band's activities were a "substantial"

or "motivating" factor in her nonhiring

by the school board, and at this stage

of the proceedings there also appears to

be a factual dispute as to whether the

school district would not have hired

plaintiff even in the absence of her

A-31

husband's activities. See Mt. Healthy

City School District v. Doyle, 429 U.S.

274, 287 (1977). We hold, therefore,

that the trial court erred in granting

summary judgment on plaintiff's section

1983 claim for deprivation of her

constitutional right of freedom of asso-

ciation.

Ill.

Since we hold that one of plaintiff-

appellant's claims survives defendants'

summary judgment motion, that claim

returns to the trial court for further

proceedings, thus rendering moot

appellant's further complaint that sun-

mary judgment was premature because her

discovery was not completed.

Appellant Lynne Cybyske also claims

the trial court committed error in

A-32

denying the motion to amend her

complaint to add her husband Michael as

a party plaintiff to include his claim

for infringement of his first amendment

rights. Plaintiff delayed over a year

after the filing of her complaint, until

the eve of defendants’ summary judgment

motion, to make her motion to amend.

Defendants argued lack of timeliness and

prejudice in trying all claims together.

We cannot say the trial court exceeded

its discretion in denying the motion.

We observe that Lynne Cybyske tries to

bring her husband into the lawsuit by

amending her own pleading under Rule

15.01. Her husband did not m»ve to

intervene or to be joined as a party,

nor is he here on appeal. We do not see

how Lynne has standing here to assert

A-33

Daniel's claim.

Affirmed in part and reversed in

part.

WAHL, Justice (dissenting in part, con-

curring in part).

I cannot agree that plaintiff Lynne

Cybyske does not have a cause of action

for marital status discrimination under

the Minnesota Human Rights Act. To so

hold is to significantly narrow the

broad construction we gave “marital sta-

tus" discrimination in Kraft, Inc. v.

State, 284 N.W.2d 386 (Minn. 1979). We

recognized in Kraft that "[b]y including

marital status within the parameters of

the Human Rights Act, the legislature

clearly intended to outlaw arbitrary

classifications relating to marriage."

284 N.W.2d at 388. We found further

A-34

that, in acknowledging the fundamental

nature of the marriage relationship in

the Act, the legislature intended that

an employer may differentiate on the

basis of marital status only where a

business necessity is compelling and

overriding. Id. If, as we determined

in Kraft, mere business convenience is

an insufficient basis for differen-

tiation, certainly bias against the

“pro-teacher" views of one's spouse

would be so.

The question is not, as the majority

opinion suggests, “whether the 'politi-

cal status' of one's spouse is protected

under our Human Rights Act." The

question is whether plaintiff teacher

can be denied employment under that act

because of the identity and situation of

A-35

the man to whom she is married. The-New

York Court of Appeals chose to interpret

marital status narrowly under the New

York Human Rights Law by holding that

marital status discrimination means only

the status of being married, single,

separated, divorced or widowed and does

not look beyond the individual's con-

jugal state to embrace the identity or

situation of the individual's spouse.

In re Manhattan Pizza Hut, Inc. v. New

York State Human Rights Appeal Board, 51

N.Y.2d 506, 511, 415 N.E.2d 950, 952,

434 N.Y.S.2d 961, 963 (1980). Thus,

State Division of Human Rights ex rel.

Howarth v. Village of Spencerport, 76

A.D.2d 50, 434 N.Y.S.2d 52 (1980),

relied on by respondents, is irrelevant

to our decision here.

A-36

In interpreting our own Human Rights

Act, we rejected the view that “marital

status" does not embrace the identity or

situation of one's spouse. Kraft, 284

N.W.2d at 388. The four part-time

employee plaintiffs in Kraft were denied

full-time employment with that company

not just because they were married but

precisely because of who their husbands

were, in that case, full-time employees

of Kraft. We held this to be employment

discrimination on the basis of marital

status under the Human Rights Act. If,

as plaintiff in this case alleges, she

was denied employment as a teacher by

defendant school district precisely

because of who her husband was, a

"pro-teacher"™ school board member in the

neighboring district, this constitutes,

A-37

under Kraft, employment discrimination

on the basis of marital status. Nowhere

in Kraft did we limit our holding to

anti-nepotism employment policies. We

upheld rather the broad prohibition of

the Act against arbitrary

classification.

We have consistently held that the

remedial nature of the Minnesota Human

Rights Act requires liberal construction

of its terms. See, e.g., City of

Minneapolis v. State by Wilson, 310

N.W.2d 485 (Minn. 1981) (holding "race"

discrimination included discrimination

for association with persons of another

race); Continental Can Co. v. State, 297

N.W.2d 241 (Minn. 1980) (holding "sex"

discrimination included employer inac-

tion in face of sexually derogatory sta-

A-38

tements and verbal sexual advances

directed at one employee by fellow

employees); City of Minneapolis v.

Richardson, 307 Minn. 80, 239 N.W.2d 197

(1976) (term "discriminate" as used in

Human Rights Act means distinction in

treatment of individuals based upon

irrelevant or impermissible factors).

Our continued adherence to a bread

construction of "marital status" under

the Act is not only required by Kraft

but also furthers the Act's objective of

encouraging all employers to base

employment decisions on the merits of

the individual applicant. This

construction does not unnecessarily bur-

den employers. An employer may legiti-

mately establish certain requirements

for its employees, "bona fide occupa-

A-39

tional qualifications," where those

requirements are inherently required by

the nature of the business. Minn. Stat.

§ 363.03, subd. 1 (1982).

The plaintiff here has stated a

cause of action for marital status

discrimination under the Minnesota Human

Rights Act as well as for violation of

her constitutional rights. I would

reverse the grant of summary judgment

and remand for trial on both claims.

YETKA, Justice (dissenting).

I join in the dissent of Justice Wahl.

A-40

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT

File No. 93854

Lynne E. Cybyske,

Plaintiff,

vs.

Independent School

District No. 196,

Rosemount-Apple Valley,

Minnesota, Lee FINDINGS

Droegemueller, indivi- AND

dually and as Superinten- ORDER

dent of Independent School

District No. 196, Ruth

Randall, individually and

as Director of Personnel

of Independent School

District No. 196, and

Robert Keeton, individually

and as Director of Elemen-

tary Education of Indepen-

= School District No.

96.

Defendants.

The above-entitled matter came on

for hearing on the Special Term Calendar

B-1

before the undersigned at the Dakota

County Government Center on November

23rd, 1982. The Plaintiff appeared by

and through her attorneys, Mark Wine,

Esquire, and Kathleen Hvass Sanberg,

Esquire. The Defendants appeared by and

through their attorneys, James E.

Knutson, Esquire, and Thomas M. Sipkins,

Esquire.

Based upon the files and records

herein and the arguments of counsel, the

Court makes the following:

FINDINGS

1. There are no genuine issues as to

any material fact pending in this law

suit.

2. That Plaintiff's cause of

action, as pleaded, failed to allege

actionable marital status discrimination

B-2

under either State or Federal law.

3. That Plaintiff's Motion to amend

the complaint should be denied.

From the foregoing Findings, the

Court makes the following:

ORDER

1. That Plaintiff's claims against

the Defendants in the above-entitled

matter should be, and hereby are,

dismissed.

2. That entry of this order be

stayed for thirty (30) days.

DATED: February 25th, 1983

BY THE COURT

George H. Hoey

Acting Judge of

District Court

B-3

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