# Opposition Brief — Cain v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2465%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1135 ## Text | FILED 2 MAY 18 25 —— IN THE SUPREME COURT OF THE UNITED STATES No. 84-1374 October Term, 1984 C. MACK CAIN, Petitioner, V. THE COMMONWEALTH OF VIRGINIA, et al., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES SUPREME COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION Gerald L. Baliles Attorney General of Virginia Guy W. Horsley, Jr. Senior Assistant Attorney General Neil A. G. Mephie Assistant Attorney General Office of the Attorney General 101 North Eighth Street Richmond, Virginia 23219 (804) 786-3809 May 10, 1985 _ BEST AVAILABLE COPY TABLE OF CONTENTS TABLE OF AUTHORITIERg g. OPINIONS BELO(CCVVWU0LwLwb? JURISDICTION .......6.. (G— 2 QUESTION PRESENTED ......... — STATEMENT OF FAcfccs es. ARGUMENT CONCLUSION . „ „ee eee ee 10 20 2 1 G ee) 8 on 3 7 7 N ‘ 4 N. * N 3 a * “y * . — — * 0 * * * + | 6 * Lind 1 9 4 : 2 ; E 1 Amd eS Se . 8 — , th ee AO a 1A LO TABLE OF AUTHORITIES Cases Bowens v. North Carolina Department of Human Resources, 710 F.2d 1015 (4th Cir. 1983)......... Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974) ........00es Fuentes v. Roher, 519, F.2d 379 (2nd Cir. 1975) ........ — Goldberg v. Kelly, 397 U.S. 254 (197 o Hortonville Joint School Dist. No. I v. Hortonville Education Assn., 426 U.S. 482 (1970): Hoska, III v. United States ment of Army, 694 F.2d 270 (D.C. Cir. 198ꝝꝝ/77ʒ7 Nevels v. Hanlon, 656 F.2d 372 Wer. 1081) wc cece cccscccscees Obrien v. Digrazia, 544 F.2d 543 {ist Cir. 1976) )))) PATCO v. FLRA, 685 F.2d 547 ...... Schweiker v. McClure, 456 b United States v. Grinnell Co tion, 384 U.S. ee caweece ii 12 16 16 12 16 15 11 Vanelli v. Reynolds School District No. 7, 667 F.2d een... . 5 „ „ „ „1017 Ward v. Johnson, 690 F. 2d 1098 II 6 0 6 60 66 0 17 Withrow x. Larkin, 421 U.S. 35 (1975) . eeeeevee eo eee eeeee -11,12,13,17 Wolkenstein v. Reville, 694 F.2d 35 (2nd ä — cert denied, | 102 S.Ct. 2452, 7 ~~ rr. eee ee ee eee eee 16 Statutes Page United States Constitution, Amendment XX... 5 6 066 00060 Passim United States Code: 5 r 0 nn we eho 2 42 U.S.C. Ss 1983 „„ „„ „„ „„ „ „„ „„ QQ W 7 42 U.S.C. 8 19988. —— —— 7 Virginia Grievance Procedure, Code of Virginia, 1950 as amended Serre 46 5 Sunne) 110.0 8 2.1-114.5:100 é qauꝗ ul 12, 15,18 iii ~~ 2 * 3 » 392 Ke & fy é a > saint a a oe * ike, ~ 1 my Lon Oke Ewart 6 2. U ‘ * Dor eo r ter ir ° 5 Fe: erer er nenen ede Ne 4 Aw l. A tos > eng gh fatin« . Lie , tee? Aae a ee „iner ae e Ante e ee een er %& 12 ai * ean €.6i1)-i.2 ¢ ane iin n r „ No. 84-1374 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1984 C. MACK CAIN, Petitioner, Vv. THE COMMONWEALTH OF VIRGINIA, et al. Respondents. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI Respondents, The Commonwealth of Virginia, et al., respectfully request that this Court deny the petition for a writ of certiorari, which seeks review of the Fourth Circuit's orcer in this case. | OPINIONS BELOW The opinion in which certiorari is sought is aot reported. A copy of that opinion appears at Pet. app. 24a. mee aster BO, . The contention also would prohibit any employee, with any knowledge of a case, gained through the employment relationship, from sitting on panels. Such a result would essentially dismantie the grievance procedure and is not required for due process. e. Merritt's Participation on the Panel Did Not int the Proceeding. The essential fairness of the hearing petitioner received is manifest. petitionar had at least four opportunities to confront all the evidence administratively as well as three days of panel hearings during which each witness for the Department was fully cross examined. (App. F.2d 35 (2nd Cir. 1982), 2482, 77 L.Bd.24 1333 (1 1 $47 (D.C. Cir. 1982), Vane ane 1 667 F.2d 773, v. ) Cir. 1981). 16 at 101, 106, 112). Nonetheless, petitioner contends that Merritt's presence tainted the panel because petitioner was denied an opportunity to confront all the evidence. In support of this contention, petitioner points to certain evidentiary submissions which the panel refused > whole or in part. These allegations do not demonstrate prejudice. The underlying submissions of which petitioner complains were denied by a unanimous panel. (R. Vol. 1, No. 12, pp. 42-46). Moreover, the lower court made no findings that the panel's conduct was improper. Accordingly, the Fourth Circuit correctly concluded "any hazard arising out of the potential for such bias was alleviated by the fact that all three members of the grievance panel were, at the hearing, made aware of all the same information heard by Merritt during the pre-termination discussion." See Vanelli, supra, 667 F.2d at 780.4 ‘Petitioner contends that Ziskind's presence as an agency witness tainted the panel under Withrow v. Larkin, supra, and Ward v. Johnson, 690 F.2d 1098 (4th Cir. 1982). Ziskind had no investigative or prosecutorial duties. Although he made the decision to terminate and acted as third step management official, he neither investigated nor prosecuted. Billings and (Continued) 17 2. There was no Violation of the Grievance Procedure The Fourth Circuit noted that there was nothing to suggest that opinions of the Attorney General and the Department of Personnel and Training that Merritt could sit were incorrect. Accordingly that Court gave the opinions great deference. The evidence supports the correctness of the ruling. The grievance procedure does not prohibit persons who have participated in the underlying facts of a grievance from sitting on a panel; the statute and the implementing regulations expressly prohibit persons with direct involvement in the grievance itself from sitting on a panel. See, Virginia Code § 2.1-114.5:1(D)(4), 1950, as amended; (App. at 91).° Smith investigated and Assistant Attorney General Flippen represented the agency. (App. at 99). Thus, there is no evidence that Merritt was influenced by persons engaged in investigative and prosecutorial functions. Moreover, there is no evidence to suggest that Ziskind's appearance or conduct at the hearing influenced Merritt. Petitioner also contends that the trial court admonished Merritt not to sit. The court denied petitioner's motion suggesting that his participation was proper (App. at 10) and explicitly refused to tell Merritt he could not sit. (App. at 45). SSection 2.1-114.5: 1(D)(4) states in part, "such panel shall not (Continued) 18 The regulations identified the directly involved individuals to be the grievant, supervisors hearing the grievance at the three management steps, representatives of the grievant at the third step, and witnesses who have appeared at any management step. (App. at 91). The Virginia Code defines a grievance as a dispute or complaint by an employee relating to, among other things, disciplinary actions taken by the agency. Virginia Code § 2.1-114.5:1(A), 1950, as amended. Accordingly, persons who participated in petitioner's grievance after it was filed on August 20, 1982, would be prohibited from sitting on the panel. Merritt is not such a person. He was not a supervisor replying at any management steps or witness at any management step. Although he participated in a single imyromptu pre-termination discussion pertaining to the agency's investigative facts and the be composed of any persons having direct involvement with the grievance being heard by the panci." The regulations provide in part, "such panel shall not be composed of any person having direct involvement with the grievance being heard, such as a grievant's supervisor replying at the three management steps, representatives of the grievant at the third step and the witnesses.” (App. at 91). 19 available disciplinary actions, such participation does not preclude him from sitting on the panel. Indeed, it could not, under any interpretation, be "participation in a grievance," because there was no grievance until after petitioner's dismissal.® Merritt's participation occurred prior to petitioner's initiation of the grievance, was therefore not "direct involvement in the grievance," and was permitted under the statute. 6a grievance is statutorialy defined as "a complaint or dispute by an employee relating to ... disciplinary actions, including dismissals ...... Hence, a discussion before the dismissal giving rise to a grievance simply cannot be "direct involvement in the grievance." See, § 2.1-114.5:1(A), 1950 as amended. 20 CONCLUSION For the reasons stated above, respondents request that the decision of the Circuit Court be affirmed and the petition for certiorari be denied. Respectfully submitted, COMMONWEALTH OF VIRGINIA, et al. a ee Counsel Gerald L. Baliles Attorney General of Virginia Guy W. Horsley, Jr. Senior Assistant Attorney General Neil A. G. Mephie Assistant Attorney General Office of the Attorney General 101 North Eighth Street Richmond, Virginia 23219 (804) 786-3809 Counsel for Respondents 21 CERTIFICATE In accordance with Rule 28 of the Rules of the United States Supreme Court I hereby certify that three copies of the foregoing Brief for the Respondents In Opposition were mailed, postage prepaid, this e L day of May, 1985, to Mary Lynn Tate, Esquire, Yeary & Tate, P.C., 161 East Main Street, Abingdon, Virginia 24210, counsel for petitioner. A, xD 408 A227-P288 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2465%3A2. Public record. Not legal advice.