Opposition Brief — Howkins v. Caldwell

office Supreme Court, US.

FILED

4) ARR 3 1989

4

No. 84-1557 ALEXANDER L- STEVAS,

a ee

INTHE .

Supreme Court of the United States

OcTOBER TERM, 1984

JoHN H. Howxrns, Esq,.,

Petitioner,

v.

Sam S. CALDWELL AND J. FREEMAN RaILey,

Eacu & .Boru, InprvmvuaLLy & OFFICIALLY,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

RESPONDENT CALDWELL’S BRIEF IN OPPOSITION

Eart J. VAN GERPEN

Counsel of Record

KENNETH L. SHIGLEY

VAN GERPEN & RICE

Post Office Box 724508

Atlanta, Georgia 30339-1508

(404) 952-8822

Counsel for Respondent

Sam S. Caldwell

1

QUESTIONS PRESENTED

1. Whether the state employee’s claims of consti-

tutional infringements, not raised in the administra-

tive hearing process or state court appeal, and ex-

pressly waived in open court in the state court appeal,

are precluded by res judicata and collateral estoppel?

2. Whether the employee’s insubordinate, disruptive

and abrasive expressions in the workplace are pro-

tected by the free speech clause of the First Amend-

ment? :

3. Whether a federal court can take judicial notice

of bare allegations of political relationships and in-

trigues, without any evidence thereof in the record?

Page

QuESTIONS PRESENTED ...-.- +--+ eseeeeeesrseseetees i

TABLE OF AUTHORITIES ......---eeeeereeerererterees iv

OpIntons BELOW 2.2.05. cece cee cee cece ces ccceserers 1

STATEMENT OF THE CASE ....---- +e sees eer ereeeeseee 2

A. The Record and Decision of the State Personnel

Board os caccaccndecncsesunceeenesaeeee eee 2

B. The State Court Appeal ........----+eeeeeeees +

C. The District Court Action ......-----++eeeseee +

D. The Decision of the Court of Appeals ........- 5

PR! WEEP R Rees . ¢eepan Slee 4)

L. The Petition is deficient and should be summarily

Genied : s oscinu osu s04wes cd koa eee ee ae eee )

A. There are no ‘‘special and important reasons’’

for discretionary review .....---- re Pere 4)

B. The Petitioner seeks new determinations of is-

sues of fact, including some apparently never

alleged in the proceedings below ....-------- 9)

C. Lacking ‘‘accuracy, brevity and clearness,’’ the

~ Petition should be denied ......---+++++++++5 6

D. Burdened with ‘‘irrelevant, immaterial and

scandalous matter,’’ the Petition should be

NPE MPT PO IT OP ery a) 7

II. The Petitioner’s claim of bias on the part of the

State Personnel Board’s Hearing Officer is a bare

allegation not supported by evidence in the record,

and was waived by omission from the appeal to

7

i

TABLE OF CONTENTS

the Eleventh Circuit ........-.-.eseer seer eeeees

Dress

li

TaBLE OF ConTENTS continued

~ 7 Page '

III. Insubordinate, disruptive and abrasive expres-

sions in the workplace are not protected by the

| i ee 8

IV. Res judicata and collateral estoppel bar the Peti-

SES Rn ee 9

A. Review of the entire record shows that the

evidence was sufficiently substantial to satisfy

requirements of due process’and give the state

court, judgment preclusive effect ............ 10

B. The/Petitioner did have a full and fair oppor-

tunity to litigate all issues in the Georgia

courts, and freely waived that right ........ 11

C. The Petitioner’s action is barred by appli-

cable Georgia rules of preelusion ........... 13

D. The Petitioner had all the process that was

I see dedasiiee kc. eee eas 15

V. The doctrine of qualified good faith immunity

supports the judgment ......:................. 15

Wh. Conolusion ...2:...2335..:.7. Ree Chee ee kshwe.s 46 16

APPENDIX 1 ...... Te Oo ai ea nee a re la

a a a a a 3a

APPENDIX 3 Sieh a a ee ree |

ote oc, i ea 13a

a a ey aid oa hie oo oda ese nf, I4a

iv

TABLE OF AUTHORITIES

CasEs: Page

Allen v. McMurray, 449 U.S. 90 (1980) ............ 9,12

Boylan v. U.S. Postal Service, 704 F.2d 573 (11th Cir.,

1983), reh. dented, 709 F.2d 716, cert. denied, 104

Me. Es Rr rr eer per, ee errs or 10

Butz v. Economou, 438 U.S. 478 (1978) .............. 15

Calhoun v. Bailar, 626 F.2d 145 (9th Cir. 1980), cert.

dented, 452 U.S. 906 (1981): 2... ccc ce ences 10

Charlton v. United States, 412 F.2d 390 (3rd Cir.,

1969), cert. denied, 409 U.S. 1027 (1972) ........ 10

Connor v. U.S. Civil Service Comm., 721 F.2d 1054

FOU Gin SNE: sicacedkcducscnereeustasebaudacs 10

Davis v. Scherer, 104 8. Ct. 3012 (1984) ............ 15, 16

_Eliason Corp. v. Bureau of Safety & Regulation, 564————

F. Sapp. 1296 (W.D.. Mich. 1963) <2. 06. ocne eee 12

Hall v.. Ault, 240 Ga. 585 (1978) (0.0 ce bela 11,15

Haring v. Prosise, 462 U.S. 306 (1983) .............. 9, 14

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........... 15

Hillis v. Steven F. Austin State University, 665 F.2d

547 (5th Cir.), cert. denied, 457 U.S. 1106 (1982). 8

Home Health Services of the U.S., Inc. v. Schweiker,

G63 7.28 335 (iith Cir.; 1962) «oi ccieesdecis. 10

Howkins v. Caldwell, 587 F. Supp. 98 (1983) .... 1,4,7,9

Kannisto v. City and County of San Francisco, 541

F.2d 841 (9th Cir., 1976), cert. denied, 480 U.S.

SE, EE Bees 8

Vv

TABLE OF AUTHORITIES continued

Page

Kremer v. Chemical Construction Corp., 456 U.S. 461

ERIE kha fob d aa eertesssageesusel ee eaaeec 9,13

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)... 9

Lowe Engineers, Inc. v. Royal Indemnity Co., 164 Ga.

PR DUEL Scvinod sake sce ee doek ceeabacees 13-14

Migra v. Warren City School Dist. Bd. of Education,

SE ee TD ek vv bance enc ccuakausieues 9,13

Miller v. Hartwood Apts., 689 F.2d 1239 (5th Cir., 1982) 12

Mt. Healthy School Dist. Board of Education v. Doyle,

429 U.S.5274, 287 (LOTT)... cee e eee ence wees 8

Nilson v. City of Moss Povwnt, Miss., 701 F.2d 556 (5th

Calg SED cn cagtantsdavdes pees aeeiewetees 11,12

Philips v. Adult Probation Dept., 491 F.2d 951, 954-55

fo | ero er rreere ree errr ey or 8

Schneider v. City of Atlanta, 628 F.2d 915, 919 (5th

Ral, SS ackca dad wdens abea babee eis eae 8

Southern Jam, Inc. v. Robinson, 675 F.2d 94 (5th Cir.,

Ls er re per pare ete mer rar Nee rey oar oe E 12

Sprague v. Fitzpatrick, 546 F.2d 560, 565-66 (3d Cir.,

1976), cert. denied, 431 U.S. 937 (1977) ......... 8

United States v. Shubert, 348 U.S. 222 (1955) ....... 6

Williams v. Day, 553 F.2d 1160, 1162 (8th Cir.,1977).. 8

Wood v. Strickland, 420 U.S. 308, 320 (1975) ......... 15

STATUTES AND RULEs:

Se Tis BND 6 $a Reo OES eee eee 12,13, 15

Constitution. of the State of Georgia, 1983, Art. 6,

ae 8 repre pescacghecechaneecrarcavenersans 12

vi

TABLE oF AUTHORITIES continued

Page

a, te ae OE essiscaceseavesusdnesaupenen®s 11

Georgia State Personnel Board Rules & Regulations

WROD te pa cense ssh see essescdevesvaceceaavease? 16

Official Code of Georgia Annotated § 15-6-8 .......... 12

Official Code of Georgia Annotated § 50-13-19(g) .... 11-12

Supreme Court Rule 17 .............cccccccecccctess 3)

Supreme Court Rale 21 ..........cccccccccccccocese 7

Supreme Court Rule 34.6 ............. cece ee eeeee 7

IN THE

Supreme Court of the United States

OcToBER TERM, 1984

oe

No. 84-1557

———— — ——

Joun H. Howxiys, Esq.,

Petitioner,

v.

Sam S. CALDWELL AND J. FREEMAN Raley,

Eacu & Boru, INprvipvaLLty & OFFICIALLY,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

RESPONDENT CALDWELL’S BRIEF IN OPPOSITION

OPINIONS BELOW

The Court of Appeals affirmed without opinion (Pet.

App. 13) and denied a motion for rehearing (Pet.

App. 14). The decision and order of the district court

is reported at 587 F. Supp. 98 (1983). The state court

decision and order (Pet. App. 12) and the underlying

State Personnel Board order (Pet. App. 11) and hear-

ing officer’s decision (Pet. App. 10), are unpublished.

9

oo

STATEMENT OF THE CASE

This case arises from the demotion of the Petitioner

from Chief Hearing Officer to Hearing Officer in the

Unemployment Insurance Services Division of the

Georgia Department of Labor, due to insubordination

and managerial incompetence. The Respondents were

formerly the Georgia Commissioner of Labor and the

Chief of the Employment Security Agency of the

Georgia Department of Labor, respectively.

For clear understanding of the issues, the Court

should know the evidence presented at the administra-

tive hearing in support of the demotion, summarized

in the Findings of Fact entered by the State Personnel

Board’s hearing officer (Pet. App. 10).

A. The Record and Decision and the State Personnel Board.

The first ground for demotion was insubordination

involved in the Petitioner’s refusal to respect binding

precedents of the Board of Review, which is the highest

administrative review body of the Employment Secur-

ity Ageucy, Georgia Department of Labor. (Resp. App.

1; Pet. App. 10). There was evidence that the Appel-

lant challenged a decision of the Board of Review

in a very abrasive manner (SPB-105),’ and had a

‘cheated exchange’ with members of the Board of

Review denying the precedent-setting authority of the

Board of Review. (SPB-295-97). He defied a prece-

dent set by the Board of Review by entering a ruling

directly contrary to such precedent (SPB-380, 381),

1 References to the State Personnel Board hearing transcript,

which is not reproduced herein due to its length, will be designated

‘““SPB,”’ followed by the page number of the transcript.

3

and directed at least one other Hearing Officer under

his supervision to similarly disregard Board of Re-

view precedent. (SPB-37).

The second ground for demotion was Appellant’s

ineffectiveness and inefficiency as a supervisor. There

was much evidence of the Appellant’s vacillation and

inconsistency as a manager, often reversing policies

from day to day, and contributing to unnecessary

stress and poor morale among his subordinates. (SPB-

69, 70, 91, 102, 243, 250, 334). He disregarded equip-

ment purchasing procedures by ordering recording

equipment without prior authorization. (SPB-359).

~ He apparently exercised ‘‘management by intimida-

tion,’’ as evidenced by such incidents of rudeness as

turning and walking off without speaking when intro-

duced te a new Hearing Officer on his staff (SPB-

319), reprimanding one Hearing Officer in the pres-

ence of another Hearing Officer (SPB-237), screaming

at subordinates (SPB-237), and walking out of a

room in the middle of a conversation with another

Hearing Officer to avoid a discussion. (SPB-335). At

times he talked to Hearing Officer subordinates in a

derogatory fashion about other Hearing Officers.

(SPB-240, 320). He refused to give subordinates their

regular performance evaluations, to which they were

entitled, but instead tore up the evaluations and threw

them in the trash. (SPB-332). The Appellant appar-

ently suffered from a severe inability to concentrate

b's attention on discussion of cases, and that difficulty

increased with time after he became Chief Hearing

Officer. (SPB-253, 254). His poor human relations

and communications skills led to unnecessary friction

among his staff, which improved dramatically after

his demotion. (SPB-261, 326). He so poorly admin-

e

+

istered the caseload of the Hearing Officers under his

supervision that files got stuck ou his desk for long

periods, delaying release of decisions (SPB-337, 338).

When his successor took over after his demotion, there

was a backlog of 666 untyped decisions, 248 of which

were over 75 days old, and no case reports had been

sent to Archives (as required by Federal Court Order)

in six months. (SPB-357, 358). The Petitioner was

generally considered a poor leader and poor manager.

(SPB-108, 261).

The State Personnel Board hearing officer entered

findings (Pet. App. 10) which were approved by the

Board (Pet. App. 11).

B. The State Court Appeal.

In his appeal from the State Personnel Board to

the Superior Court of Fulton County, the Petitioner

raised no constitutional issues in his pleadings (Resp.

App. 2) and waived all constitutional claims in open

court (Pet. App. 12).

C. The District Court Action.

The Petitioner then filed a civil rights action in

United States District Court (Resp. App. 3), upon

which the court granted summary judgment in favor

of the Respondents. Howkins v. Caldwell, 587 F.

Supp. 98 (1983). There remains pending in District

Court a claim of alleged retaliation, which the Peti-

tioner added by amendment while the Respondents’

Motion for Summary Judgment was under advise-

ment. Proceedings in the retaliation claim have been

stayed pending the present appeal.

4)

D. The Decision of the Court of Appeals.

On appeal to the Eleventh Circuit Court of Appeals,

the Petitioner argued only the applicability of res

judicata and collateral estoppel, and the distinction

between ‘‘any evidence’’ and ‘‘substantial evidence’’

standards of review, omitting and waiving all other

issues. (Resp. App. 4, 5).

ARGUMENT

I. The Petition is Deficient and Should be Summarily Denied.

A. There are no “special and important reasons”

for discretionary review.

None of the issues argued by the Petitioner involve

conflicts between circuits, conflicts between federal and

state courts, departures from the usual course of judi-

cial procvedings, or important federal law questions

requiring initial consideration. Therefore, the Supreme

Court should not allocate time and resources to a dis-

eretionary review of this case. Sup. Ct. R. 17.

B. The Petitioner seeks new determinations of issues of

fact, including some apparently never alleged in the

proceedings below.

The Petitioner makes numerous crucial factual con-

tentions apparently never alleged, presented or con-

sidered below, and which are totally unsupported in

the record in this case. For example, he states with-

out support that the State Merit System hearing of-

ficers ‘‘could be fired at any time and told to move out.

before sundown,’’ (Pet. 36-37), that evidence against

the Petitioner was ‘‘created’’ (Pet. 19-20), that all

6

the witnesses against the Petitioner had a ‘‘very close

relationship” with Mr. Caldwell (Pet. 15), and that

Mr. Caldwell’s ‘‘only mistake” was that he supported

the wrong candidate for governor (Pet. 18). Woven

throughout is an elaborate conspiracy theory never

supported by evidence in the lower courts.

The Petitioner had ample opportunity to conduct

discovery in the state court and district court pro-

ceedings and obtain evidence to support these allega-

tions, if they could be supported, and he failed to do so.

There is no record in this ease to support such allega-

tions. Now he seeks a ‘‘second bite at the apple’’ by

asking the Supreme Court to act as the finder of fact

on matters that were either not raised, or decided ad-

versely to him, in the courts below. That is not the

usual job of the Supreme Court. The Petition should

be denied. See, e.g., United States v. Shubert, 348 U.S.

222 (1955).

C. Lacking “accuracy, brevity and clearness,”

the Petition should be denied.

The Petition for Certiorari is 52 pages long, ex-

eluding subject index, table of authorities, verbatim

quotations and lengthy appendices. It contains a ram-

bling narrative of the personal recollections of the

Petitioner and lengthy innuendos of immaterial mat-

ters involving this Respondent and recent Georgia

political history. There is some limited reference to

the record of this case, but much reference to unrelated

newspaper articles, editorials and rumors about the

Respondent. For failure ‘‘to present with accuracy,

brevity and clearness whatever is essential to a ready

and adequate understandirg of the points requiring

7

consideration,’’ the Petition should be denied. Sup. Ct.

R. 21.1(8), 21.4, 21.5.

D. Burdened with “irrelevant, immaterial and scandalous

matter,” the Petition should be denied.

The Petition contains 18 pages of reproductions of

newspaper articles and pleadings in criminal cases, -

and six pages of unsupported narrative on Georgia

polities, all of which are ‘‘burdensome, irrelevant, im-

material and scandalous matter’’ as to this action. The

Court should disregard, strike and deny the Petition.

Sup. Ct. R. 34.6.

Il. The Petitioner’s Claim of Bias on the Part of the State

Personnel Board’s Hearing Officer is a Bare Allegation, not

supported by evidence, and was waived by omission from

the appeal to the Eleventh Circuit.

The chief issue which the Petitioner has raised in

this Court is the alleged lack of an unbiased hearing

examiner. The district court’s pithy ruling on this

issue is adequate:

‘*Clinging to the last straw, Howkins beckons this

court to conclude on innuendo alone that Hearing

Officer Theus, who presided over Howkins’ hear-

ing, was not impartial. In support of this claim

Howkins asks this court to take judicial notice of

the following: [wherein the Court lists six con-

tentions of political and bureaucratic intrigue].

And the list goes on. These are not maiters of

which this court ean take judicial notice. In addi-

tion, the record is totally devoid of any facts sup-

porting these bald allegations. There is nothing in

that transeript to support Howkins’ claim that

the hearing was conducted in a biased or preju-

diced manner that affected his rights. ... Accord-

8

ingly, this court considers this claim to be merit-

less.”’

Howkins, 587 F. Supp. at 107, 108.

The Petitioner omitted this issue from his appeal

to the Eleventh Circuit (Resp. App. 4), and by such

omission waived its further consideration.

Ill. Insubordinate, Disruptive and Abrasive Expressions in the

Workplace are not Protected by the First Amendment.

Speech closely connected with insubordination is not

protected by the First Amendment. Williams v. Day,

5993 F.2d 1160, 1162 (8th Cir,, 1977). Neither is speech

which interferes with the operation of the workplace.

Sprague v. Fitzpatrick, 546 F.2d 560, 565-66 (3d Cir.,

1976), cert. dented, 431 U.S. 9387 (1977); Kannisto

v. City and County of San Francisco, 541 F.2d 841, ©

844 (9th Cir., 1976), cert. denied, 430 U.S. 931 (1977) ;

Schneider v. City of Atlanta, 628 F.2d 915, 919 (5th

Cir., 1980); Phillips v. Adult Probation Dept., 49%

F.2d 951, 954-55 (9th Cir., 1974). When an emplovee’s

abrasive personality and unsatisfactory work perform-

ance alone justify a termination or demotion, a mere

allegation by the employee that his exercise of free

speech motivated the action will not save him. Mt.

Healthy School Dist. Board of Education v. Doyle,

429 U.S. 274, 287 (1977); Hillis v. Steven F. Austin

State University, 665 F.2d 547, 551-2 (5th Cir.), cert.

demed, 457 U.S. 1106 (1982).

As noted by the district court, the Petitioner’s con-

duct was insubordinate, interfered with the opera-

tions of his superiors on the Board of Review, and

disrupted the working environment of his subordi-

nates. The Petitioner was unable to support his naked

| 9

contention that but for his insubordinate act (which

he characterized as protected speech), he would not

have been demoted. Howkins, 584 F. Supp. at 107.

IV. Res Judicata and aneraitinn Estoppe! Bar the

- Petitioner’s Claim.

The district court found that the Petitioner’s pres-

ent federal action is barred by the preclusive doc-

trines of res judicata and collateral estoppel, con-

sistent with the applicable rules of Georgia law and

constitutional requirements of due process. Howkins

v. Caldwell, et al., 587 F. Supp. 98 (1983). See, Allen

v. McMurray, 449 U.S. 90 (1980) (‘Allen’) ; Kremer

v. Chemical Construction Corp., 456 U.S. 461 (1982)

(“Kremer’’); Haring v. Prosise, 462 U.S. 306 (1983)

(“Haring’’); and Migra v. Warren City School Dist.

Bd. of Education, 104 S.Ct. 892 (1984) (‘‘Migra’’).

‘*TS]tate procee lings need do no more than satisfy

the minimum procedural requirements of the Four-

teenth Amendment’s Due Process Clause in order

to qualify for the full-faith-and-credit guaranteed

by federal law... . [W]e must bear in mind that

no single model of procedural fairness, let alone

a particular form and procedure, is dictated by

the Due Process Clause.’’

Kremer, 456 U.S. at 481, 482. Accord, Migra, 104

S.Ct. at 896.

‘‘What the Fourteenth Amendment does require...

is an opportunity granted at a meaningful time and

in a meaningful manner... for a hearing appropriate

to the nature of the case.” Logan v. Zimmerman Brush

Co., 455 U.S. 422 (1982).

10

A. Review of the Entire Record Shows That The Evidence

Was Sufficiently Substantial To Satisfy Requirements

of Due Process and Give The State Court Judgment

Preclusive Effeet.

The “‘substantial evidence’’ test is ‘‘ quintessentially

a case-by-case analysis requiring review of the whole

record.’’ Calhoun v. Batlar, 626 F.2d 145, 148 (9th

Cir., 1980), cert. denied, 452 U.S. 906 (1981) ; Connor

v. U.S. Ciwil Service Comm., 721 F.2d 1054 (6th Cir.,

1983). Generally, the application of the ‘‘substantial

evidence’’ test in the civil service employment context

consists of a review of whole record to determine

whether basie procedural requirements have been sat- .

isfied and whether the agency’s action was based on

substantial evidence, as opposed to being arbitrary or

eapricious. See Charlton v. Umted States, 412 F.2d 390

(38rd Cir., 1969), cert. denied, 409 U.S. 1027 (1972).

Substantial evidence is ‘‘such relevant evidence as a

reasonable mind might accept as adequate to support -

a conelusion.’’ Home Health Services of the U.S., Ine.

v. Schweiker, 683 F.2d 353, 356 (11th Cir., 1982).

See also, Boylan v. U.S. Postal Service, 704 F.2d 573

(11th Cir., 1983), reh. denied, 709 F.2d 716, cert. de-

nied, 104 S.Ct. 1916 (1984).

Review of the whole record in this ease shows that

evidence presented to the Georgia State Personnel

Board was substantial, indeed more than ample to

support demotion from a supervisory position to one

which did not involve management and supervision of

other Hearing Officers and staff.

The ‘‘substantial evidence” test is not a technical

requirement to be mechanically applied by the Court

below. It is a broad stendard of due process to be con-

11

sidered by an appellate court in review of the whole

record.

Even assuming arguendo that ‘‘substantial evidence’’

is a mechanical test for the trial court, the evidence

to justify demotion in this case is so substantial that

application of the ‘‘any evidence”’ standard pursuant

to Hall v. Ault, 240 Ga. 585 (1978), if in error, did

not defeat substantial justice or affect the substantial

rights of the Appellant. If error at all, it was harmless

and not reversible. Fed. R. Civ. P. 61.

B. The Petitioner Did Have a Full and Fair Opportunity

To Litigate All Issues In the Georgia Courts, and

Freely Waived That Right.

Even if the question of constitutionality of the ‘‘any

evidence’’ rule preseribed in Halil v. Auit, 240 Ga. 585

(1978), were not pretermitted by the substantiality

of evidence in the record, which renders it harmless,

Petitioner fails to show any reason why all issues, in-

cluding constitutional ones, could not have been fully

and fairly litigated in the Georgia courts.

Contrary to the Petitioner’s contention, Georgia law

would permit the Superior Court to consider constitu-

tional claims of violation of due process resulting from

bias of the hearing officer or improper makeup of the

State Personnel Board, even if not raised in the ad-

ministrative hearing. That would have required the

Petitioner to present evidence to support those claims,

rather than relying upon bald allegations, as provided

by Official Code of Georgia Annotated § 50-13-19(g) :

‘The review shall be conducted by the Court with-

out a jury and shall be confined to the record. In

cases of uileged irregularities in procedure before

12

_ the agency, not shown in the record, proof thereon

may be taken in the Court. ...’’ O.C.G.A. § 50-

13-19(g). (emphasis supplied)

The Fifth Circuit, in Nilson v. City of Moss Point,

Miss., 701 F.2d 556 (5th Cir., 1983), held that ‘‘res

judicata ... bars all claims that were or could have

been advanced in support of the cause of action on the

oceasion of its former adjudication.” Citing Allen v.

McCurry, 449 U.S. 90 (1980), the court in Nilson held

that multiple remedies for a given wrong must be

asserted together, not serially. Nilson, 701 F.2d at 560.

In Eliason Corp. v. Bureau of Safety & Regulation,

564 F. Supp. 1298 (W.D. Mich., 1983), the court held

that res judicata and collateral estoppel preclude re-

litigation in a federal proceeding under 28 U.S.C.

§ 1983 of issues which either were, or might have been,

litigated in prior state proceedings. See also, Southern

Jam, Inc. v. Robinson, 675 F.2d 94 (5th Cir., 1982).

The ease of Miller v. Hartwood Apts., 689 F.2d

1239 (5th Cir., 1982), upon which Petitioner relied in

the Eleventh Circuit, is inapposite. In Miller, the Mis-

sissippi Justice of the Peace Court had jurisdiction

to determine only possessory rights, and lacked juris-

diction to consider any equitable or constiutional

issues. Id. at 1242. The Superior Court of Fulton

County, Georgia, on the other hand, is a court of

general jurisdiction in law and equity which could

have considered any issues the Appellant might have

chosen to raise.’ Const. of the State of Georgia, 1983,

Art. 6, §4, 11; Official Code of Georgia Annotated

§ 15-6-8. It cannot be assumed that the Superior Court

of Fulton County or the Supreme Court of Georgia

13

would not have seriously considered a well-reasoned

constitutional argument fairly related to evidence in

the record of the case.

The Petitioner, who is a licensed attorney and ex-

perienced quasi-judicial Hearing Officer, proceeded

pro se in Fulton Superior Court. He did not raise

any constitutional issues in his pleadings (Resp. App.

2), and expressly waived any constitutional claims in

open court. (Pet. App. 12). ‘‘The fact that (the Peti-

tioner) failed to avail himself of the full procedures

provided by state law does not constitute a sign of

their inadequacy.”’ Kremer, 456 U.S. at 485.

C. The Petitioner’s Action Is Barre’ by Applicable

Georgia Rules of Preclusion.

Federal courts must apply state preclusion rules in

actions filed pursuant to 28 U.S.C. § 1983, insofar as

their application is not inconsistent with minimal

standards of due process. Migra, 104 S.Ct. at 898.

Georgia law recognizes three forms of preclusion

by prior adjudication, Lowe Engineers, Inc. v. Royal

Indemmty Co., 164 Ga. App. 255 (1982):

(1) ‘‘The doctrine of res judicata arises from a

judgment of a court of competent jurisdiction as

between the same parties of their privies as to all

-. matters put in issue, or which under the rules of

law might have been put in issue, in the cause in

which the judgment rendered.”’

(2) “*A plea of estoppel by judgment ... stems

from the doctrine of res judicata where there has

been a former adjudication of the same issues by

the same parties or their privies, even though the

adjudication may not have been upon the same

14

cause of action. ... Estoppel by judgment is

sometimes referred interchangeably as collateral

estoppel or as ... estoppel by judgment.

(3) The doctrine of binding precedent ‘‘ provides

where the issue of liability has previously been

adjudicated with negative results for a party con-

tending for the same rights in subsequent litiga-

tion, even though not res judicata, estoppel bv

judgment nor collateral estoppel as to the present

action, because the parties are different, does con-

stitute binding precedent, inasmuch as the con-

trolling issue ... has already been adjudicated

under substantially similar allegations.’’ Jd. at

258-9. (emphasis supplied)

The Petitioner’s cause of action is thus precluded

under Georgia law. The Respondents are in this case

only by virtue of their roles as former officials of

the Georgia Department of Labor, and their defense

herein is provided by the State of Georgia; their privity

with the Georgia Department of Labor cannot be

seriously disputed. This case is based upon the same

situation which was involved ‘= the Superior Court

_ proceeding.

The Petitioner had ample motivation to fully liti-

gate all issues, constitutional and otherwise, in the state

court proceeding. Haring, supra. Thus, Georgia law

would give the Superior Court judgment res judicata

effect as to any issues which were or might have been

raised in that proceeding. Alternatively, the former

adjudication of the same matters in an action between

the same parties or privies, although not on the same

cause of action, would invoke estoppel by judgment

under Georgia law. Finally, the third doctrine of pre-

clusion under Georgia law, the doctrine of binding

precedent, could preclude the Petitioner from attempt-

15

ing to relitigate the central issue of the propriety of

his demotion and the due process of procedures in-

volved therein.

D. The Petitioner had all the process that was due him.

The Petitioner fails to show how he could have been

harmed by any alleged deficiency in the proceedings

in the state court. He had a full opportunity to litigate

all issues, failed to raise any constitutional issues in

his pleadings there, and expressly waived all consti-

tutional issues in open court. While the state court

referred to the ‘‘any evidence”’ rule set forth in Hall

v. Ault, supra (Resp. App. 5), review of the whole

record shows that the result could not have been

different if a ‘‘substantial evidence” rule have been

cited.

V. The Doctrine of Qualified Good Faith Immunity

Supports the Judgment.

In Davis v. Scherer, 104 S.Ct. 3012 (1984), this

Court reasserted the qualified good faith immunity of

public officials from § 1983 liability in the context of

disciplinary discharge of a public employee. See also

Harlow v. Fitzgerald, 457 U.S. 800 (1982); Butz v.

Economou, 438 U.S. 478 (1978); Wood v. Strickland,

420 U.S. 308, 320 (1975).

The test of qualified immunity depends upon ‘‘ob-

jective reasonableness of (the officials’)conduct as

measured by reference to clearly established law’’ and

‘*insofar as their conduct does not violate clearly estab-

lished statutory or constitutional rights of which a

reasonable person would have known.’’ Harlow, 457

U.S. at 818.

16

The record in the instant case does not show any

violation of clearly established rights of which a rea-

sonable person would have known. On the contrary,

the record shows that the heavy weight of the evidence

presented to the State Personnel Board was to the

effect that Howkins was insubordinate in that he de-

liberately disregarded precedents of the Board of Re-

view in his work as a Hearing Officer, and that he

was an exceptionally incompetent manager, totally in-

eapable of properly handling his supervisory respon-

sibilities. Thus, his demotion from a supervisory posi-

tion to a non-supervisory position was fully justified.

(Pet. App. 10).

Subjective motives of the Respondents, if any, are

immaterial, as the demotion was objectively reason-

able under existing law in light of the Petitioner’s

totally unsatisfactory job performance in his super-

visory eapacity, pursuant to Georgia State Personnel

Board Rules and Regulations { 15,203, which provides

for demotion due to negligence or inefficiency. Mere

irregularity in following State Personnel Board pro-

cedures would not remove the Appellee’s immunity.

Davis, supra.

VI. Conclusion.

The Petitioner could have fully li igated his claims

of violation of free speech and due process in the

Georgia courts, simply by taking the trouble to pre-

sent evidence and develop a record upon which the

state courts could rule. For whatever reason, he chose

to proceed in both state and federal courts on the

basis of bald allegations and innuendo, unsupported

by any evidence, apparent’y relying solely upon ad-

17

verse publicity about this Respondent to carry his case

for him.

The conduct of the Petitioner, which he asserts was

constitutionally protected speech, was mere unpro-

tected insubordination and disruption of the work-

place. There was substantial evidence of insubordina-

tion and managerial inefficiency and incompetence to

support his demotion from a supervisory position to

one involving no supervisory responsibilities. Rather

than complaining of his demotion he should be thankful

that he was not fired.

Therefore, certiorari should be denied.

Respectfully submitted,

Earu J. VAN GERPEN

Counsel of Record

KENNETH L. SHIGLEY

VAN GERPEN & RICE

Post Office Box 724508

Atlanta, Georgia 30339-1508

(404) 952-8822

Counsel for Respondent

Sam S. Caldwell

April 1985

. APPENDIX

la

APPENDIX 1

Letter from Sam Caldwell to John H. Howkins,

March 6, 1981

GEORGIA DEPARTMENT OF LABOR

EMPLOYMENT Security AGENCY

Atlanta

- . *

March 6, 1981

Mr. John H. Howkins

Georgia Department of Labor

254 Washington Street, S.W.

Atlanta, Georgia 30334

Dear Mr. Howkins:

By this letter, | acknowledge receipt of your Responses

dated March 4, L981, and March 6, 1981 respectively.

This letter is to notify you of the final action of your

demotion from Administrative Hearing Officer IV on pay-

grade 39 to Administrative Hearing Officer III on paygrade

36, to become effeetive at the close of business March 9,

LYSL. This action is being taken pursuant to Rule 15 of the

Rules and Regulations of the State Personnel Beard, due

to your negligence or inefficiency in performing assigned

duties: inability or unfitness to pertorm assigned duties;

and misconduct.

The specific reasons for this final adverse action are:

(1) Your inability to perform assigned duties in that

on December 1, L980, you challenged a decision of the

Board of Review. As you are aware, the Board of Re-

view ts, by law, the highest administrative review body

within the Employment Security Agency of the Georgia

Department of Labor.

2a

(2) Inability to supervise employees of your section.

On several occasions high level Hearing Officers have

threatened to resign due to your lack of leadership.

Your moment-to-moment or day-to-day changing of in-

structions to Hearing Officers has led to frustration

among the employees of the Appeals Section to the

point that there have been physical and emotional prob-

lems with employees.

You have the right to appeal this determination to the

State Personnel Board pursuant to Rule 14 of the Rules

and Regulations of the State Personnel Board, by filing an

appeal in writing with the Commissioner of the State Merit

System within fifteen (15) calendar days from the date you

receive this letter or the date of the proposed action, which-

ever is later. Failure to file an appeal within the speetfied

time will result in the waiver of all further appeal rights

including any appeal to the State Personnel Board.

I consider any of the specifie reasons set forth above to

warrant the actions taken by this letter. [f you fail to per-

form your duties as Administrative Hearing Officer ITI,

more severe disciplinary actions will be taken.

Sincerely, »

/s/ Sam CatDWELu

Sam Caldwell

Commissioner of Labor

J

ec: Ms. Farris N. Freeman

Mr. J. Freeman Railey

State Merit System

Payroll Section

3a

APPENDIX 2

Petition for Review of Decision of Georgia State Personnel

Board, John H. Howkins, Administrative Hearing Officer IV,

Plaintiff vs. Georgia Department of Labor, Superior Court of

Fulton County, State of Georgia, Civil Action No. C-77793

* * P «

I. JURISDICTION

The Petitioner files this Petition for Review and Revoca-

tion of the Decision of the State Personnel Board of the

State of Georgia, Case #81-124, under authority of 40 GA

Code Ann. 2207.1/i). The decision was rendered on July

22, L981, attached hereto, and upheld the demotion of Peti-

tioner contrary to the law and evidence in the case.

II. GROUNDS

1. Under 40 GA Code Ann. 2207.1(a) and (b), the State

Personnel Board is entitled to conduct hearings on ‘‘a dis-

missal or other purported violation of the rules and regu-

lations of the several departments .. .’’

By the language cited, the only ground permitted in sup-

port of a downgrade action is ‘‘violation of the rules and

regulations’’ of the Department: to which Petitioner was

assigned, ie. the Georgia Department of Labor. However,

no rule nor any resulation has been cited either in charges

or in the Findings of Fact published by the Hearing Officer.

2..(a) A finding was made that Petitioner issued instrue-

_tions ‘*to do something one way one day and would have

the instructions changed the next day’’ and that this created

attitude problems. The Finding states only part of the facts

and ignores others in that this changing occurred mostly <->

when schedules had to be changed to accommodate unex=

pected absences of hearing officers, and they also occurred

as a result of pressures brought about by disagreements

4a

between hearing officers and the schedule clerk (Transcript

Page 327, Line 10-14) because hearing officers were under

pressure to work full schedules. Hearing officers also argued

against the requirement established by Petitioner that they

keep up their own precedent manuals, and Petitioner agreed |

at one time that they could use the office copy. However,

when it was found that none of them would read the office

copy the order was changed to require them to resume filing

in their own individual manuals. No rule or regulation of

the Deaprtment or instruction from a superior was involved.

2. (b) The hearing officer complaint that Petitioner was

‘feonstantly talking to the hearing officer’’ has no basis in

the evidence and ignores the fact that Petitioner was trving

to eontrol problems caused by that hearing officer (Tran-

seript. Pagé 342, Line 11-23), (Page 240, Line 22), (Page

455, Line 14), (Page 400, Line 4-10), and (Page 401, Line

11-21):

3. That Petitioner ‘‘was at times indecisive, argumenta-

uve towards: generally (Petitioner) seemed to have opin-

ions that differec from other staff members, many of whom

had twenty (20) or more years of serviee;...’’ This Finding

cites no rule or. instruction that was violated and ignores

the Fact that the arguments were concerned with the cor-

rect application of law controlling the Department of Labor.

(Transcript Page 127, Line 24), all of which arguments of

Petitioner have been vindicated to date save only as to the

‘*Pike’’ decisions. As to the Fantroyal decision, Petitioner

forewarned his supervisor (Page 390, 391, and 392) that

guidelines should be prepared as the Federal Judge would

almost surely require them. There were other incidents

where Petitioner used his expertise to show the correct. —

applieation of law such as following a state decision, con-

trary to argument raised by Department counsel (Page 40,

Line 2-8) (contradicted at Page 410-413) (Page 47, Line

17—Page 52, Line [). (Also see letter attached). The pres-

sure was kept up by Mr. J. Freeman Railey’s harrass-

ment, causing great difficulty in Petitioner’s management

da

of the Section (Page 396-397), (Page 415-423, Line 13),

(Page 443, Line 13,—Page 444), and (Page 95, Line 15) ‘

(contra at Page 245, Line 4). Mr Railey issued conflicting

instructions to Petitioner’s subordinate without prior no-

tice to Petitioner (Page 122-123).

4. This finding departs from the charges and fails to~

reeognize priority assignments and Petitioner’s reprimand

to the office manager. Extra personnel hours were required

and budgets were under tight restriction at the time.

5. (a) The Board of Review was asked by Petitioner to

set up a system of precedence so that confliets in their

decisions could be brought under control (Page 404, Line

13). Petitioner was not nor has at any time been abrasive

with the Board. Petitioner never ‘‘approached the Boatd’’

on the subject of the Pike decisions but was summoned and

_questioned about his opinion, which questions he answered

(Page 408, Line.22,—Page 405, Line 4). Mr. Railey con-

tradicted by Board member Brady’s testimony (Page 295,

Line 16) (Mr. Railey at Page 105, Line 18-23). Petitioner

in response to Board questions, replied ‘‘No that is not

my understanding’? (Page 307, Line 14-20). Board mem-

bers found no difficulty in getting along with Petitioner

(Page 308, Line 7) and (Page 316, Line 11). Board mem-

ber does not know whether or not Board is a precedent

board (Page 5135, Line 12).

5). (b) Petitioner wrote memo to Mr. Railey about legal

errors in ‘‘Pike’’ decisions and did so at the request of

Mr. Railey (Page 457, Line 8-10).

lil. PROCEDURES

Petitioner further shows the Court that errors were com-

mitted in the conduct of the Hearing by Reese Theus the

Hearing Officer as follows:

1. Petitioner was denied (off record) an opportunity to

join in his own defense as co-counsel and was again denied

~

6a

‘this opportunity on the record (Page 137, Line 20-22). Such

denial is contrary to the code provision requiring that ‘‘ The

Board shall give effect to the rules of privilege recognized

by law.’’ 40 GA Code Ann. 2207.1(d)(1).

2. Hearsay exclusions were improperly applied in nu-

“merous cases; examples are:

(a) Petitioner was not permitted to quote his super- |

visor, but supervisor frequently was allowed _to quote Peti-

tioner upon cross examination. Mr. Jones states (at Page

442, Line 10), ‘‘I will object to anything Mr. Railey said.’’

The objection was sustained. Thus Pe.vitioner was placed

under a gag rule. Petitioner’: subordinate was allowed to

quote Petitioner, over objection (Page 329, Line 10-19).

Mrs. Margaret Kohn was then allowed to load the record

with half truths and innuendo, Petitioner attempted to fur-

ther quote his adversary but objection was sustained (Page

393, Line 13). The hearsay rule was explained before the

hearing officer but quoting the opposite side was ruled to

be subjeet to exelusion (Page 394, Line 20-24).

(b) The Hearing Officer compounded hearsay by de-

veloping further hearsay evidence after objection was

caken by Petitioner (Page 69-71).

3. Cross examination (Offer of Proof) was denied by

Hearing Officer. (Page 78, 79, and 80). This made it un-

fairly difficult to show that confusion in the Appeals Section.

was generated from higher supervision. Cross examination

was denied to show intent to cause confusion by memo

written contrary to the rule of law, as given by Federal

and State decision.

4. Testimony and evidence as to memo from Commis-

sioner of Labor were accepted to show that instructions

were issued. before the alleged misconduet when the memo

was actually issued after action complained of (Page. 105,

Line 9-15).

7a

5. There was no showing of prior warning of any kind,

but most of the testimony (all of the testimony from sub-

ordinates) complained of incidents that occurred more than

a year prior to the notice of down rade (Page 255, Line 1).

Subordinate hearing officers complained about a clerk who

left the Appeal Section in May, 198t- Other incidents were

presented to Mr. Railey nine months to two years prior to

the notice to Petitioner, but Petitioner continued to be

rated ‘‘above average’’ in performance. His conferences

with Petitioner were not unusual (Page 115, Line 2-12).

Hearing officers in the Appeal section thus were allowed

to air personal feelings, most of which showed objection to

following legal methods.

6. Contradictions in evidence offered against Petitioner

- were not considered as affecting the probative value of such

testimony and were otherwise ignored: ‘‘ Mr. Howkins had

approached the Board’? (Page 105, Line 18-23) by Mr.

Railey ‘‘Let’s call Mr. Howkins up now’’ (Page 295, Line

16) by Board Member Brady. Also Page 29, Line 18 is

contradicted at Page 75, Line 7-8).

7. The Merit system has made a promotion by negotia-—

tion, showing illegal preference and now attempts to justify

a demotion similarly as a favor to an operating official, in

violation of Plaintiff’s Constitutional rights under the 14th

Amendment of the Constitution.

WHEREFORE, Plaintiff prays:

(a) That summons and process issue as provided by law.

(b) That Plaintiff be granted an Order of full reinstate-

ment.

(c) That this Court grant any other and further relief

it deem proper in the premises. |

Ba

| (d) That Service of Process be perfected by serving:

State Personnel Board ©

944 Washington Street, SW

Atlanta, Georgia 30334

and

Commissioner of Labor

Georgia Department of Labor

954 Washington Street, SW

Atlanta, Georgia 30334

/s/ Joun H. Howkrns

John H. Howkins

Attorney for Plaintiff

9954 Rockingham Drive, NW

Atlanta, Georgia 30327

9a

APPENDIX 3

Complaint in John H. Howkins v. Sam S. Caldwell, et al.,

United States District Court, Northern District of Georgia,

Atlanta Division, Civil Action File No. C82-2308A

COMPLAINT

Plaintiff sues defendants Sam S. Caldwell and .J. Free-

man Railey and alleges:

1.

This action is brought and the Court has jurisdiction

pursuant to the 14th Amendment of the Constitution, 42

U.S.C. $1983, and 28 U.S.C. $§ 1331 and 1343.

2.

Defendant Caldwell is and has been at all times relevant

herein Commissioner of the Department of Labor of the

State of Georgia, and is sued in his individual and official

eapacity.

3.

Defendant Railey is and has been at all times relevant

herein Unemployment Insurance Division Director of the

Kmployment Security Agency of the Department of Labor

of the State of Georgia, and is sued in his individual and

official capacity.

4.

Both defendants are subject to the jurisdiction and venue

of the Court.

5.

In April, 1970, plaintiff was employed as an Appeals

Referee with the Employment Security .Ageney of the

10a

Georgia Department of Labor. In approximately July,

1977, plaintiff was promoted to Chief Administrative Hear- |

ing Officer for such agency, a position held by plaintiff

- until approxituately December 8, 1980.

6.

In such position, plaintiff was in the classified service

of the State of Georgia and subject to the provisions of

the State Merit System.

, a

Throughout the period alleged in paragraph 5 above,

plaintiff received various and periodic performance ratings

ranging from good, to very good, to excellent.

8.

On or about December 4, 1980, an attorney of the Em-

ployment Security Agency improperly, unethically, and un-

lawfully attempted to influence a decision of an Appeals

Referee under the supervision of plaintiff in a case involv-

ing the discharge of a Department of Labor employee,

wherein the said attorney appeared as an advocate and

representative of the Department of Labor against the dis-

charged employee, when at the time, before, and thereafter,

suid attorney, under the direction of defendants, was ac-

tively and continuously training afd instructing Appeals

Referees of the Employment Security Agency, inclading

the said Appeals Referee. :

9.

On or about December 4, 1980, plaintiff, pursuant to his

professional obligations, duly made a protest to defendant

Railey concerning the conduct of said attorney, as de-

seribed above, and requested that said attorney be removed

from the ease.

lla

10.

~ On or about December 8, 1980, defendants removed plain-

tiff from his position as Chief Administrative Hearing

Officer and demoted him to a position of Appeals Referee.

ll.

Defendants’ acts of removing and demoting plaintiff, as

alleged herein, were done:

a. In retaliation for plaintiff’s protest and request as

alleged in paragraph 9 above;

b. Arbitrarily, eapriciously, and in bad faith;

e. Under color of statute, ordinance, regulation, custom

or usage of the State of Georgia;

d. Willfully, conspiratorily, and maiiciously.

‘12.

Defendants’ acts, as alleged herein, had and continue to

have the direct, intended, and foreseeable consequences of

inflicting on plaintiff great physical, emotional, and mental

anxiety, humiliation, pain, and suffering.

13.

Defendants’ removal and demotion of plaintiff, as alleged

herein, constituted a denial of plaintiff’s right to due

process of law and of his rights of equal protection of

the law in relation to a valuable property right of plaintiff.

14.

Plaintiff, if having any obligation to do so, has exhausted

his administrative remedies; alternatively, plaintiff avers

that efforts to exhaust his administrative remedies are and

have been futile and in and of themselves a denial of his

rights to due process and equal protection.

l2a

1S.

Defendants continue maliciously and unlawfully to cause

injury to plaintiff by obstructing and interfering with plain-

ciff in the performance of his job, including defendants’

unlawful and improper efforts to influence plaintiff in his

deesions as an Appeals Referee, thereby jeopardizing plain-

tiff’s tenure, earnings, and retirement prospects.

WHEREFORE, plaintiff demands judgment for:

a.

a

)

d.

Compensatory damages in the amount of $50,000.00;

Punitive damages in the amount of $300,000.00 to deter

defendants from such conduct in the future;

Special damages to be set forth subsequently by amend-

ment; °

Costs, interest, and attorney fees;

An order requiring defendants, their successors, and

any persons acting in concert with them, to reinstate

plaintiff to his rightful position as Chief Administra-

tive Hearing Officer: make plaintiff whole for any and

all losses oceasioned by defendants’ wrongful removal

and demotion of plaintiff; and take all steps reason-

ably necessary to permit plaintiff to perform his right-

tul duties, including advising all appropriate persons

of plaintiff’s reinstatement;

Such other and further relief as may be deemed ap-

propriate by the Court. ,

Further, plaintiff demands trial by jury.

/s/ Frayk KE. Specut

Frank I. Specht

Attorney for Plaintiff

5d0 RiverEdge One

5500 Interstate North Parkway

Atlanta, Georgia 30328

(404) 952-6550

Excerpt from Table of Conten

John H. Howkins vy.

3a

APPENDIX 4

ts, Brief for Plaintiff-Appellant,

Sam S. Caldweil, et al., United States

Court of Appeals for the Eleventh Circuit, Docket No. 84.8452

. . .

Argument

POINT I

The Doctrine of Preclusion Does Not Bar Plain.

Ree MNO oi os osiclee’k <i cdcck Co seclleec ns

A. The “any evidence’? test, as applied by the

i

1).

Georgia courts, does not meet minimal due

process requirements and thus does not meet

the ‘full and fair opportunity to litigate’’

qualification of Allen v. McCurry, Substantial

evidence is the minimal requirement of due

“ssbapectepnc METER OLE ER TROT ET ET OCT REE TTP Ee

Plaintiff did not have a full and fair oppor-

tunity to litigate his due process claim in the

state proceedings; the Georgia courts were un-

able or unwilling to protect plaintiff’s federal

rights; and plaintiff's due process rights were

not something he ‘might have litigated”’ in the

Se AE on oi RPE OME Peer ee

Neither the Distriet Court nor defendants es-

tablished that Georgia courts would apply pre-

clusion in the circumstances of the instant ease.

Any doubts as to the applicability of preclusion

shonld be resolved against preelusion. Defend-

ants had the burden of establishing preclusion

but failed to sustain that MG sinc dvanasi-es

. Preelusion is not applicable where the prior

state proceedings, from which preclusion is as-

serted, did not consi&t of traditional or sub-

stantial involvement ...................000..

Federal judicial policy considerations are per-

suasive to reject preclusion .................

I+

18

19

l4a

APPENDIX 5

Excerpt from Table of Contents, Reply Brief for Plaintiff-

Appellant, John H. Howkins v. Sam S. Caldwell, et al., United

States Court of Appeals for the Eleventh Circuit, Docket No.

84-8452

Argument and Citation of Authorities ..............

A.

C.

The issue here concerns the applicability or not of

judicial, not administrative, preclusion. It is state

judicial assurance of the existence or not of snb-

stantial evidence in administrative hearings that is

required under applicable Supreme Court decisions.

. The state court’s application of the any evidence

standard of review was not harmless error on any

assertion that the any evidence standard is the same

as, or equivalent to, the substantial evidence stand-

Oe A axe cnk O00 tC xd mons be keace ue Gen Were

That Plaintiff was afforded certain basic procedural

rights at the administrative hearing does not nullify

the requirement of state judicial assurance that the

agency decision be supported by substantial evi-

AN PPP Toren CrevTy vy Terre eee eT ee ee Tee

Plaintiff's instituting of state court proceedings did

not require that he exhaust state court appeals nor

constitute any election, bar, or waiver of his federal

Perr errr ret Tart weer eee eee eT eee e

6

Lda.

APPENDIX 6

Official Code of Georgia Annotated § 50-13-19,

formerly Georgia Code Annotated § 24-120

50-13-19. Judicial review of contested cases; venue, pro-

cedure, stay of agency decision, grounds, ete.

(a) Any person who has exhausted all administrative

remedies available within the ageney and who is aggrieved

by a final decision in a contested case is entitled to judicial

review under this chapter. This Code section does not limit

utilization of or the scope of judicial review available under

other means of review, redress, relief, or trial de novo pro-

vided by law. A preliminary, procedural, or intermediate

ageney action or ruling is immediately reviewable if review

of the final ageney decision would not provide an adequate

remedy.

(b) Proceedings for review are instituted by filing a

petition within 30-days after the service of the final deei-

sion of the ageney or, if a rehearing is requested, within

30 days after the decision thereon. The petition may be

filed in the Superior Court of Fulton County or in the

superior court of the county of residence of the petitioner.

When the petitioner is a corporation, tha action may be

brought in the Superior Court of Fulton County or in the

superior court of the county where the petitioner maintains

its principal place of doing business in this state, All pro-

ceedings for review, however, with respect to orders, rules,

regulations, or other decisions or directives of the Publie

Service Commission must be brought in the Superior Court

of Fulton County.-Copies of the petition shall be served

. upon the ageney and all parties of reeord. The petition shall

state the nature of the petitioner’s interest, the fact show-

ing that the petitioner is aggrieved bv the decision, and

the ground as specified in subseetion (h) of this Code sec-

tion upon which the petitioner contends that the decision

l6a

should be reversed or modified. The petition may be

amended by leave of court.

(c) Irrespective of any provisions of statute or agency

rule with respect to motions for rehearing or reconsid-

eration after a final agency decision or order, the filing of

such a motion shall not be a prerequisite to the filing of

any action for judicial review or relief: provided, however,

that no objection to any order or decision of any ageney

shall be considered by the court upon petition for review

unless such objection has been urged before the agency.

(d) The filing of the petition does not itself stay. en-

forcement of the agency decision. Except as otherwise pro-

vided in this subseetion, the agency may grant, or the

reviewing court may order, a stay upon appropriate terms

for good cause shown. In contested cases involving a license

to practice medicine or a license to practice dentistry in

this state, a reviewing court may order a stay or an agency

may grant a stay only if the court or agency makes a find-

ing that the public health, safety, and welfare will not be

harmed by the issuance of the stay. |

(e) Within 30 days after the service of the petition or

within further time allowed by the court, the agency shall

transmit to the reviewing court the original or a certified

copy of the entire reeord of the proceeding under review.

sy stipulation of all parties to the review proceeding, the

record may be shortened. A party unreasonably refusing

to stipulate to limit-the reeord may be taxed by the court

for the additional costs. The court may require or permit

subsequent corrections or additions to the record.

(f) If, before the date set for hearing, application is

made to the court for leave to present additional evidence

and it is shown to the satisfaction of the court that the

additional evidence is material ail there were good rea-

sons for failure to present it in the proceedings before the

ageney, the court may order that the additional evidence

a eS eee eS eee

l7a

be taken before the agency upon conditions determined by

the court. The agency may modify its findings and decision

by reason of the additional evidence and shall file that evi-

dence and any modifications, new findings, or decisions with

the reviewing court.

(¢) The review shall be conducted by the eourt without

a jury and shall be confined to the reeord. In cases of

alleged irregularities in procedure before the agency, not

shown in the record, proof thereon may be taken in the

court. The court, upon request, shall hear oral argument

and receive written briefs.

(h) The court skall not substitute its iundgment for that

of the ageney as to the weight of the evidence on questions

of fact. The court may affirm the decision of the agency

or remand the case for further proceedings. The court may

reverse or modify the decision if substantial rights of the

appellant hiave been prejudiced because. the administrative

findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In exeess of the statutory authority of the agenev:

(3) Made upon unlawful proeedure ;

(+) Affected by other error of law;

(0) Clearly erroneous in view of the reliable, probative,

and substantial evidence on the whole record: or

(6) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion.

(I¢mphasis supplied. )