Amicus Curiae Brief — Aponte Roque v. Kercado-Melendez

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Supreme Court Ws

FILER

MAY 18 ive

SESOSEPH £, SPANIOL, JR,

No. 87-1730

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

AWILDA APONTE ROQUE,

SECRETARY OF THE DEPARTMENT

Or EDUCATION OF THE

COMMONWEALTH OF PUERTO RICO

Petitioner,

Vv.

IpclA M. KERCADO-MELENDEZ

Respondent.

BRIEF OF AMICI CURIAE IN SUPPORT

OF PETITIONER BY THE STATES ~

OF KANSAS, NEW HAMPSHIRE, CONNECTICUT

AND THE COMMONWEALTH OF PENNSYLVANIA

HONORABLE ROBERT T. STEPHAN

Attorney General of Kansas

By: JoHN C. CAMPBELL

Deputy Attorney General

Counsel of Record

Office of the Attorney General

Judicial Center—Second Floor

Topeka, Kansas 66612

(913) 296-2215

[Additional Counsel Listed on Inside Front Cover]

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

HONORABLE STEPHEN E. MERRILL

Attorney General of New Hampshire

208 State House. Annex

Concord, New Hampshire 03301

HONORABLE LERoy S. ZIMMERMAN

Attorney General of Pennsylvania

Strawberry Square—16th Floor

Harrisburg, Pennsylvania 17120

HONORABLE JOSEPH L. LIEBERMAN

Attorney General of Connecticut

Capitol Annex

30 Trinity Street

Hartford, Connecticut 06106

TABLE OF CONTENTS

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TERE AOE FAUT PROIT US oa icecicecencacscvesscccuccoccscasceveces

PNTeREStT OF THE AMICI CURIAE ......c.ccccccccscccssccess

REASONS FOR GRANTING THE WRIT ..........scccceeeeees

III.

First Circuit decision misapplied

Supreme Court precedent went it held

that abstention is inappropriate merely

because the affected teacher alleges that

her dismissal was motivated by an un-

constitutional PUTPOSE ...............ccseseees

The First Circuit misread Dayton when

it found the Commonwealth’s proceeding

to be remedial, rather than coercive,

simply because the affected teacher must

take ‘‘affirmative steps’’ to invoke the

integrated administrative-judicial review

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The First Circuit erred when it refused

to apply the exhaustion requirement of

Huffman to the state administrative pro-

rics secretes ean

OO EEO ON Ne A PTA Cae 7 ek RO ROO

TABLE OF AUTHORITIES

CASES: Pages

Gibson v. Berryhill, 411 U.S. 564 (1978) «0.0.0... 3

Huffman v. Pursue, 420 U.S. 592 (1975). ........ 3,6,7

Juice v. Vail, 430 U.S. 327 (1977). ............c00c000 3

Middlesex Country Ethics Committee v. Garden

State Bar Ass’n, 457 U.S. 423 (1982) ............ 3

Moore v. Sums, 442 U.S. 413 (1979) .............00ccceeee 3

Ohw Cwill Rights Commission v. Dayton Christian

Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718

CRE sec xadeeveanapaaniaieeacoua hia eenap ae acisaatanass 3,5

Patsy v. Florida Board of Regents, 457 U.S. 592

ER a ececvansscicis estan de cesie ees ace eednaiaaagiecas 6,7

Pennzoil v. Teraco,__ U.S. __. , 107 S.Ct. 1519

PY ceca reaas eves cena cc eunvenrnretn serene: 3

Tramor v. Hernandez, 431 U.S. 434 (1977) .......... 3

Younger v. Harris, 401 U.S. 87 (1971) ....... ee. 2,3.4,5

STATUTES

P.R. Laws Ann. tit. 18, §§274-2740(1974) ............. 2

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1730

AWILDA APONTE ROQUE,

SECRETARY OF THE DEPARTMENT

Or EpucATION OF THE

COMMONWEALTH OF PUERTO RICO

Petitioner,

IpciA M. KERCADO-MELENDEZ

Respondent.

BRIEF OF AMICI CURIAE IN SUPPORT

OF PETITIONER BY

THE STATES OF KANSAS, NEW HAMPSHIRE,

CONNECTICUT, AND THE COMMONWEALTH OF

PENNSYLVANIA

INTEREST OF THE AMICI CURIAE

The states appearing as amici curiae, through their

various state executive agencies, are responsible for

enforcing the various civil statutes enacted by their

respective legislatures for securing the integrity of

the state’s civil service and public employment. This

responsibility is an important one from the standpoint

of protecting the health and welfare of the citizens

of the several states.

While this case concerns the enforceability of the

Commonwealth of Puerto Rico’s statute for the dis-

cipline of tenured teachers for just cause, the con-

stitutional principles at stake are of great importance

to the proper balance between the states and the

federal judiciary. For if the Court of Appeals for the

First Circuit’s decision is left to stand, it would sig-

nificantly eviscerate the states’ statutory procedure

for the discipline for cause of al! public employees

and signal a significant transfer of public service per-

sonnel decision from the states’ agencies to the fed-

eral courts. This result is offensive to the “proper

respect for state functions’’ contemplated by the ab-

stention doctrine of Younger v. Harris, 401 U.S. 37

(1971), as extended to the state administrative con-

text, and hostile to ‘‘the belief that the national gov-

ernment will fare best if the states and _ their

institutions are left free to perform their separate

functions in their separate ways.” Id., 401 U.S. at

44,

The principles of federalism and comity that this

Court has found to be “central” to our form of gov-

ernment have been misapplied by the Court below in

a manner inimical to the states’ interest in the en-

forcement of their laws, and thus call for the Court’s

granting of a writ of certiorari to the Court of Appeals

for the First Circuit.

REASONS FOR GRANTING THE WRIT

In Younger v. Harris, 401 U.S. 87 (1971), the Court

held that, absent special circumstances, reasons of

federalism and comity required federal court to ab-

> oy RE ay

stain from enjoining a pending state criminal prose-

cution. Subsequently, the Court has expanded the

scope of Younger to include state civil and adminis-

trative proceeding initiated to vindicate an important

state interest and which afford the federal plaintiff

an opportunity to hear her constitutional claims. Ohio

Civil Rights Commission v. Dayton Christian Schools,

Inc., 477-U.S. 619, 106 S.Ct. 2718 (1986); See Younger

v. Harris, 401 U.S. 37 (1971); Gibson v. Berryhill,

411 U.S. 564 (1973); Huffman v. Pursue, 420 U.S.

592 (1975); Juidice v. Vail, 430 U.S. 327 (1977); Trai-

nor v. Herndndez, 431 U.S. 434 (1977); Moore v. Sims,

442 U.S. 413 (1979); Middleser County Ethics Com-

mittee v. Garden State Bar Ass’n, 457 U.S. 423 (1982);

Pennzoil v. Texaco,__. U.S. ___, 107 S.Ct. 1519

(1987).

As petitioners point out, however, a majority of the

First Circuit panel mistakenly declined to abstain from

interfering with the Commonwealth’s disciplinary pro-—

ceeding initiated pursuant to the Teachers Misconduct

Act, P.R. Laws Ann. tit. 18, §§274-2740 (1974). By

focusing on marginal concerns, the First Circuit per-

mits the defeat of the overriding values of federalism,

comity and equity that control whenever the state

initiates a proceeding to vindicate an important state

interest embodied in state law. If allowed to stand,

the First Circuit decision would enable a federal court

to transmute itself into a super-personnel board pass-

ing judgment on personnel decisions concerning an

area traditionally left to the states to perform, such

as that of enforcing state statutes concerning the in-

tegrity of public service personnel.

In particular, the First Circuit decision errs in the

following manner:

I. The First Circuit decision misapplied Supreme Court

precedent went it held that abstention is inappropriate

merely because the affected teacher alleges that her dis-

missal was motivated by an unconstitutional purpose

In its decision, the Court of Appeals found that

abstention is inappropriate whenever a teacher, in-

stead of attacking the constitutionality of the state

proceeding or their underlying statutory predicate,

simply ‘‘alleges that her dismissal was motivated by

an unconstitutional motive.’ Pet. App. 12a.

The distinction established by Judge Bownes, who

penned the majority opinion, for triggering applica-

tion of Younger abstention misconstrues both this

Court's precedent and the state interest involved. For

this Court has never intimated that the state interest

involved in the enforcement of state law diminishes

just because the motivation of the state executive is

in question. On the contrary, federal intervention is

just as intrusive whenever a federal action challenges

either the constitutionality of the underlying statute

or the constitutionality of the state actor’s motive,

for in both circumstances the federal action seeks to

nullify the enforcement of state law by the state in

its sovereign capacity.

The artificial distinction drawn by the majority for

applying Younger abstention is disingenuous. It would

disabled attempts by the state to enforce state law

merely by allegations of improper motive, even where

there is no indication that the state’s administrative-

judicial review mechanism cannot fairly adjudicate the

employee’s claim of unconstitutional motive. While

paying lip service to the values of federalism, in es-

sence, the First Circuit’s decision reduces abstention

to a rule of pleading. This result is irreconciliable with

Younger and its progeny.

II. The First Circuit misread Dayton when it found the

Commonwealth's proceeding to be remedial, rather than

coercive, simply because the affected teacher must take

“affirmative steps’’ to invoke the integrated adminis-

trative-judicial review mechanism

The First Circuit’s decision acknowledges the exten-

sion of Younger abstention to the state administrative

context effectuated by Ohio Civil Rights Commission

v. Dayton Christian Schools, Inc., —— U.S. ——, 106

S.Ct. 2718 (1986). It concluded, nonetheless, that Day-

ton was inapplicable to the state proceeding in question

because said proceeding was remedial, rather than

coercive. Dayton, 106 S.Ct. at 2723, n. 2.

This Court has never spelled out the distinction

between a remedial and a coercive state proceeding.

This distinction, however, cannot hinge, as Judge

Bownes indicates, on whether the affected employee

must-take affirmative steps to contest the disciplinary

charges. For what makes a state proceeding coercive

is not whether the affected employee must take af-

firmative steps to contest the disciplinary charges, but

whether the affected employee is unwillingly exposed

in a proceeding initiated by the state to the loss of

a property or liberty interest for violation of state

law. The state disciplinary proceeding is not any less

coercive because the charged employee may admit,

acquiesce in or otherwise not contest the charges. In

such non-contested cases, the affected employee sim-

ply acknowledges the charges and accepts the disci-

plinary sanction against her imposed by the state.

Conversely, should the employee wish to contest the

disciplinary charges against her, the ‘affirmative

steps’’ requirement does not detract from the coercive

nature of the proceeding. For in contested cases, the

charged employee becomes engaged in an adversarial

proceeding in which the state, via the head of the

agency, assumes a prosecutorial role with respect to

the charged employee. The decision to contest the

charges, thus, signals the intent of the affected em-

ployee to defend himself and to invoke a full panoply

of constitutionally sound administrative-judicial mech-

anisms to review the merits of the charges and the

constitutional defenses, including those of unconsti-

tutional motive, available to the charged employee. It

is clear, therefore, that the criteria for determining

whether a state proceeding is coercive or remedial

cannot merely turn on the availability of an oppor-

tunity to contest the underlying charges; it must be

grounded on the nature of the proceeding itself, that

is, on whether it is a state initiated proceeding of a

potentially adversarial nature in which the charged

employee is exposed to a disciplinary sanction, in-

cluding removal, imposed by the state.

III. The First Circuit erred when it refused to apply the

exhaustion requirement of Huffman to the state ad-

ministrative proceedings

The First Circuit similarly erred when it refused

to apply the exhaustion requirement of Huffman v.

Pursue, 420 U.S. 592 (1975) to the state proceeding

involved. In Huffman, the Court held that a ‘“‘nec-

essary concomittant of Younger’, is the need to ex-

haust state appellate remedies before seeking federal

injunctive relief. The First Circuit, however, erro-

neously held that Patsy v. Florida Board of Regents,

a 6€6UDfl

457 U.S. 592 (1975), dispensed the plaintiffs from

compliance with Huffman.

As Judge Breyer’s dissenting opinion indicates, the

panel majority opinion in this respect runs contrary

to relevant Supreme Court authority. First of all,

Huffman indicated that the general no-exhaustion re-

quirement of Section 1983 actions has ‘‘nothing to

do’’ with situations in which the state initiated a pro-

ceeding to vindicate an important state interest. 420

U.S. at 607-609, n. 21. Furthermore, Justice White's

concurring opinion in Patsy itself noted that the

Court’s holding there ‘‘is also fully consistent with

(the Court’s) decisions that a defendant in a civil or

administrative enforcement proceeding may not enjoin

and sidetrack that proceeding by resorting to a §1983

action in federal court.’’ Patsy, 457 U.S. at 518-519

(White, J., concurring). It seems evident, therefore,

that Patsy does not encompass situations as this one

in which the state has initiated a proceeding to vin-

dicate an important state interest and the state pro-

ceeding provides for an integrated administrative-

judicial review mechanism to contest the validity of

the underlying charges and which affords an oppor-

tunity to present all constitutional claims. Patsy did

not concern a state procedure initiated to vindicate

values embodied by state law. There, an applicant for

employment was allegedly rejected because of her sex

and race. The state was not acting in a sovereign

capacity as an enforcer of state law. Therefore, none

of the values of federalism and comity embodied in

the abstention doctrine were at stake. Patsy is in-

applicable.

As petitioners describe, the First Circuit decision

below has focused on secondary considerations to de-

feat the central values of federalism, comity and eq-

ulty that control whenever a state initiates a

proceeding to vindicate important state interest em-

bodied in state law. As a result, the First Circuit

decision threatens to deprive the states of functions

best left for them to perform, particularly functions

associated with the enforcement of state law and the

discipline of public employees. Thus, the First Cir-

cuit’s decision is contrary to Supreme Court authority

and is hostile to the proper respect for state functions

contemplated by Our Federalism. For these reasons,

review by the Court is appropriate.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

ROBERT T. STEPHAN