Petition for Writ of Certiorari — Rathert v. Village of Peotone

—_

9 \ ; Suprem 2 Court, US.

4 a FILED

g0-3 AUG 27 1390

JOSEPH F. SPANIOL, Jr.

IN THE SUPREME COURT CLERK

OF THE UNITED STATES

October Term, 1990

NO.

MARVIN RATHERT AND

GARY ZYBAK,

Petitioners,

VS.

VILLAGE OF PEOTONE, WARREN BAKER, RONALD

CRAMER, JOHN HALL, JAMES JANDA, THOMAS

TUCKER, KENNETH EATINGER, RICHARD

ANDERSON, AND GARY N. BOGART,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Mark L. LeFevour

Attorney for Petitioners

1707 L Street, N.W, Suite 1050

Washington, D.C. 20036

(202) 828-4141

John Gubbins

Of Counsel

542 S. Dearborn, Suite 610

Chicago, IL 60604

(312) 922-3603

August 27, 1990

QUESTIONS PRESENTED

1. Whether Respondents can prohibit

Petitioners from wearing ear studs off duty

without violating their Fourteenth

Amendment right to liberty.

Ze Whether Respondents can prohibit

Petitioners from wearing ear studs off duty

without violating their First Amendment

right to free association.

3. Whether the Seventh Circuit so far

departed from the rules governing summary

judgment under Rule 56(c) of the Federal

Rules of Civil Procedure as to call for an

exercise of this Court's power of

supervision.

LIST OF PARTIES

The parties listed in the caption of

this case are a complete listing of the

parties to this petition.

TABLE OF CONTENTS

QUESTIONS PRESENTED. - + + + «© © +

LIST OF PARTIES. - «© «© © © e © @ »

TABLE OF AUTHORITIES .«. + «© «© «© « «

OPINIONS BELOW . . «© «© © © © © © ¢

JURESOECTICON «°° «6 «© See 6 88 A

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE. - «© «© «© «© »

REASONS FOR GRANTING THE WRIT.

CONCLUS ION . ° . . . . . . . ° o aa

il

ll

TABLE OF AUTHORITIES

Celotex Corp. v. Catrett, 477 U.S

317 (1986). . + ” . . + . . .* +

City of Los Angeles v. Heller, 475

Dee eee SOeee fo kg kt kk klk lt

Jakubiec v. Cities Service Corp.,

844 F.2d 470 (7th Cir. 1988).

Kelley v. Johnson, 425 U.S. 238

Shr, oe . 7 J . . . . .

tom © seay Boy LS, 15, 16, 18, 19,

NAACP v. Alabama, 357 U.S. 449

(1958). . o _ . . J ° . 6 e . .

Perry v. Sindermann, 408 U.S. 592

Glrray 7. . . . o . os . . . .

Richardson v. Penfold, 839 F.2d 39

eS | a aa

Robbins v. Lynch, 836 F.2d 330

Some ees BeOOP 6 se ew ‘

Roberts v. United States Jaycees,

@oe U.S. 607 (1964) ....

Thorne v. City of El Segundo, 726

F. 2d 459 (9th Cir. 1983) cert den

469 7 979 2 o e * e . . e * ° s

Wilson v. Taylor, 733 F.2d 1539

(llth Cir. 1984). se - o — e . 7 .

iii

Page

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1990

No.

MARVIN RATHERT AND

GARY ZYBAK,

Petitioners,

VS.

VILLAGE OF PEOTONE, WARREN BAKER, RONALD

CRAMER, JOHN HALL, JAMES JANDA, THOMAS

TUCKER, KENNETH EATINGER, RICHARD

ANDERSON, AND GARY N. BOGART,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

CNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, Marvin Rathert and Gary

Zybak, petition for a writ of certiorari to

review the judgment of the United States

Court of Appeals for the Seventh Circuit

entered in this case on June 1, 1990.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Seventh Circuit is set

forth in Appendix A. (Marvin Rathert

et

al. v. Village of Peotone et. al., No. 89-

1435, June 1, 1990, Wood, J.). The January

3, 1989 decision of the United States

District Court for the Northern District of

Illinois, Eastern Division, granting

respondents' motion for summary judgment is

set forth in Appendix B.

JURISDICTION

The Court of Appeals affirmed the

judgment of the District Court on June l,

1990. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. Section

1254(1) and Rule 10 of the Supreme Court

Rules.

to

CONSTITUTIONAL PROVISIONS INVOLVED

U.S.C.A. Const. Amend. I

Congress shall make no law respecting

an establishment of religion, or

prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the

press; or the right of the people peaceably

to assemble, and to petition the Government

for a redress of grievances.

U.S.C.A. Const. Amend. XIV, Section 1.

All persons born or naturalized in the

United. States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No 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.

STATEMENT OF THE CASE

This is a civil rights action brought

by two police officers of the Village of

Peotone who claim they were disciplined

without regard to their right to liberty,

due process and free association in

violation of the first and fourteenth

amendments and 42 U.S.C. Section 1983. The

District Court ruled in favor of the

Respondents and the Seventh Circuit

affirmed that decision. This case is

before this Court for a review of that

Seventh Circuit opinion.

Petitioners initiated this action on

February 3, 1987 against the Village of

Peotone, Chief of Police, Gary Bogart, and

various Village trustees. The Petitioners

claimed that they were disciplined without

warning or notice in December 1986 and

January 1987 because they wore ear studs on

and off duty and because they allegedly

became intoxicated while off duty and

because they failed to complete certain

unspecified assignments. Petitioner Marvin

Rathert was demoted from Sergeant to

Patrolman with a pay cut. (R. 41 par. 14).

In their complaint, Petitioners

acknowledged that they wore ear studs as

personal jewelry off duty and that they met

with friends and relatives in Peotone

taverns while off duty. They denied,

however, wearing ear studs on duty or

becoming publicly intoxicated and not

completing assignments. (R. 41 par 16).

Gary Zybak lived in Peotone for over

twenty years. Since 1979 he served as a

Patrolman for the Village of Peotone Police

Department. (R.. 468 Es. @ = gp. :3-4),

Beginning in December, 1986 Zybak wore a

Silver stud 1/8 inch in diameter in his

left ear. (Id. at 8, 21). He was never

told not to wear the ear stud and was aware

of two female officers who did wear

earrings while on duty. (Id. at 14).

In December 1986, Zybak received a

registered letter directing him to

immediately cease wearing an ear stud on

duty or off duty. (Id. at Ex. E). Zybak

was never informed that it was reported

that he was intoxicated or failed to

complete assignments. Nevertheless, the

Same registered letter directed Zybak not

to become intoxicated in a public place or

to fail to carry out his assignments in the

future. (Id.)

Petitioner Rathert lived in Peotone for

almost 30 years. (R. 48 Ex. F. p. 24).

Since 1980 almost. continuously, Rathert

a

served as a police officer for the Village

of Peotone. (Id. at 4). Prior to December

1986, Rathert was the only sergeant on the

force which included six sworn and nine to

ten part-time personnel. (Id. at 24).

Beginning in December 1986, Rathert wore a

small gold post 1/8 inch in diameter in his

left ear. (Id. at 13, 15). Rathert wore

the ear stud for personal reasons including

fashion. (Id. at 13). He was aware of

female officers who wore earrings on duty

and other male residents of Peotone who

wore ear studs. (Id. at 15-16, 33).

In December 1986, Rathert received a

registered letter directing hin to

immediately cease wearing an earring on

duty or off duty. (Id. at Ex. P). Rathert

was never informed that it was reported he

was intoxicated or failed to complete

assignments. (Id. at 72). Rathert could

not recall becoming intoxicated off duty or

failing to follow instructions. (Id. at

38-39). Nevertheless, the same registered

letter directed Rathert not to become

intoxicated in a public place or to fail to

carry out his duties. (Id. at Ex. D).

Police Chief Gary Bogart recommended to the

Police Committee President and to the Board

of Trustees that Rathert be demoted from

sergeant to patrolman. (Id.) The Board

voted to accept Bogart's recommendation.

(R. 41 par. 17).

According to Respondent Bogart, wearing

an earring off duty was not a violation of

the dress code, since it did not apply to

off duty conduct. (R. 48 Ex. I, at 31).

(See also Janda dep. R. 48 Ex. K p. 14 - no

clear rule on jewelry); John Hall dep. R 48

Ex. L p. 39 allowed to wear jewelry on

duty).

Sandra Lee Andres, Rathert's sister-in-

law, lived in Peotone almost her entire

life. According to Andres, Peotone is a

small town. She heard no reaction to her

brother-in-law's earring prior to this

lawsuit. (R. 48 Ex L p. 6). After this

lawsuit hit the papers, Andres heard a lot

of people comment that Bogart had no reason

to demote Rathert. She claimed that people

in the community referred to Bogart's past

when he was having troubles and opined that

what Rathert did off duty was his business.

(Id. at 8). No one told her about Rathert

wearing the ear stud. She also explained

that the people of Peotone disapprove of

everything. As examples she cited the

marriage of one of her girlfriends to a

black and a guy riding a motorcycle or the

priest coming to a fish fry and having a

beer. (Id. at 10-11). She also testified

that in Peotone a person can have two

drinks and people will think they are

drunk. (Id. at 16).

Since receiving their discipline,

neither Petitioner has worn his ear stud

off or on duty. Further, both Petitioners

refrained from attending taverns for fear

of being falsely accused again of public

intoxication. (R. 48 Ex. G p. 28, 31, 32,

R. 48 Ex. F p. 29, 43).

Petitioners two-count complaint alleged

deprivation of their due process rights and

freedom of association rights. After

Respondents filed a motion to dismiss, the

District Court dismissed the Petitioners’

property interest claim but sustained the

liberty interest and free association

claims. (R. 35). On cross-motions for

\

summary judgment, the District Court

entered judgment in favor of Respondents.

10

(R. 66, See also App. B). On appeal, the

Seventh Circuit affirmed the District

Court's decision. (App. A).

REASONS FOR GRANTING THE WRIT

1. The Seventh Circuit Court of

Appeals decided the Petitioners' liberty

interest in this case under the "rational

relationship" test as stated by this Court

in Kelley v. Johnson, 425 U.S. 238 (1976).

The Seventh Circuit's application of the

rational relationship test in this-case was

directly in conflict with this Court's

decision in Kelley.

In Kelley, this Court found that the

hair - length regulation of the Suffolk

County Police Department was rationally

related to the county's method of

Organizing its police force, and the

promotion of safety of persons’~ and

property. ig. 425. 0.3. -at 247. In

ll

defining the constitutional issue to be

decided by the lower courts, this Court

found,

The constitutional issue...is

whether [the police department's]

determination that such regulations

should be enacted is so irrational

that it may be branded "arbitrary”,

and therefore a deprivation of [the

police officer's] “liberty” interest

in freedom to choose his-~ own

hairstyle. Id. 425 U.S. at 248.

The police department in Kelley had a

specific regulation dealing with hair

length. Id. 425 G.S. at 239, nel, 242

n.4. These regulations also related to

the police officer's on duty appearance.

Id.

In the instant case, the Peotone Police

Department had no specific’ regulation

related to a male police officer's wearing

of an ear stud either on duty or off duty.

Rathert v. Peotone, No. 89-1435 slip. op.

(7th Cir. June 1, 1990) at p. 8; (App. A

12

p.8) The Seventh Circuit limited its

decision to the police officers' off duty

wearing of their ear studs and the

appropriateness of the reprimand letters

and demotion related to that off duty

conduct. * Id. at p. 8,10.

The Petitioners maintain that’ the

Seventh Circuit's decision upholding the

off duty

regulation of their wearing of ear studs

did not satisfy the rational relationship

test because the Peotone Police Manual

lacked a specific regulation concerning

the wearing of an ear stud off duty and

because the kelley decision cannot be

properly applied to a transitory article

* The Seventh Circuit found that no issue

existed regarding the issues of pretext

(eg. off duty intoxication, dereliction of

duty) and on duty wearina of an ear stud.

(App. A pp. 3, 8).

L3

of personal dress that can be worn off duty

and be left at home while on duty.

A. The Peotone Police Manual Lacked

Any Regulation Governing The Off Duty

Wearing of An Ear Stud

The Seventh Circuit found the

applicable test in this case to be whether

the police policy expressed in the

Petitioners’ reprimand letters bears a

rational relationship to a legitimate

public interest. (App. A at p. 8). The

Seventh Circuit then analyzed this case

under this Court's rational relationship

test. Kelley, supra. Under the auspices

of the Kelley test, the Seventh Circuit

upheld Peotone's discipline of the

Petitioners for purely off duty conduct.

(App. A at. p. 1l).

The Kelley test was improperly applied

in this case because of the lack of a

regulation relating to the Petitioners'

14

oe

off duty wearing of an ear stud. Without

a regulation to challenge, it is virtually

impossible for the Petitioners to

demonstrate the rational connection

between a regulation and a legitimate

interest by the Peotone Police Department.

B. The Peotone Police Department's

Reprimand for Petitioners' Off Duty

Wearing of An Ear Stud Violated the

Petitioners’ Liberty Interest In

Matters of Personal Appearance

In Kelley, the majority of this Court

assumed the existence of “some sort of

‘liberty’ interest within the Fourteenth

Amendment in matters of personal

appearance.” Kelley, 425 U.S. at 244.

Justice Marshall, in the dissent in

Kelley, went one step further and

specifically found that the Fourteenth

Amendment does "protect against

comprehensive regulation of what citizens

may or may not wear.” Id. 425 U.S. at 250

15

(Marshall, J. dissenting). The dissent

found support for its position in the 1789

congressional debates over which

guarantees should be explicitly

articulated in the Bill of Rights. Id.

425 U.S. at 251-252. (Marshall J.

dissenting). The liberty interest in this

case implicates the personal choice of the

Petitioner police officers in their off

duty personal appearance and not any issue

related to the chosen mode of organization

for the Peotone Police Department, the

promotion of safety of persons~ and

property or the esprit de corps of the

Peotone Police Department.

This Court recognized the dichotony

between the rights of a uniformed police

officer versus the citizenry at large.

Kelley, 425 U.S. at 244-245. Justice

Powell, in his concurring opinion

16

articulated the balancing test between a

uniformed police officer's rights and a

citizen's rights. The concurring opinion

found that

When the state has an interest in

regulating one's personal

appearance. . . there must be a

weighing of the degree - of

infringement of the individuals

liberty interest against the need

for regulation. This process of

analysis justifies the application

of a reasonable regulation to a

uniformed police force that would be

an __impermissible intrusion upon

liberty in a different context.

(emphasis added). Id. 425 U.S. at

249 (Powell, J. concurring).

The Petitioners submit that the

regulation of their off duty wearing of

ear studs through the official reprimands

is not 4 reasonable regulation, is

arbitrary and is an impermissible

intrusion on their liberty interests.

The “regulation” through the official

reprimands was not reasonable because the

17

degree of infringement on the Petitioners'

liberty interest was extreme in relation

to any rational basis attributed to the

Peotone Police Department. The Seventh

Circuit attempted to justify Peotone's

actions by finding that other regulations

impacted on the Petitioner's off duty

conduct and, by finding that the

Petitioner's off duty wearing of ear studs

had an adverse impact on police

effectiveness due to the community's

negative reaction to the Petitioner's off

duty wearing of ear studs. Both of these

justifications are constitutionally

infirn.

First, the main factor which

distinguishes this case from Kelley and

from the regulations which impact on off

duty conduct is the transitory nature of

ear studs as a piece of apparel. The hair

18

length regulation in Kelley obviously

affected the police officer's on duty and

off duty appearance. Hair, by its very

nature, cannot be left at home when the

police officer goes to work. | a Ye

permanent facet of a person's personal

appearance. Likewise, beards and

mustaches are also permanent in nature.

(App. A at p. 10). The Seventh Circuit

also referred to intoxication as _ an

appropriate off duty restriction. off

duty intoxication is something that can be

brought with the police officer when he

comes on duty.

The wearing of an ear stud is not like

hair length, beard length or intoxication

because it can be left at home when the

police officer goes on duty or can be

easily removed if the officer is

unexpectedly called to duty. Therefore,

19

the justifications upon which the Seventh

Circuit relied were not reasonable and

were arbitrary in relation to the liberty

interest in personal appearance asserted

by the Petitioners.

The Seventh Circuit's other

justification for upholding the

petitioner's reprimands and demotion was

that the "wearing of ear studs by Peotone

police officers was seen by those who run

the police structure as well as by the

public generally, to have an adverse

impact on police effectiveness.” App. A

at p.- ll. The Seventh Circuit supported

this rationale by referring to a small

community standard where there "is little

difference in the way the police officers

are publicly viewed, whether their

objectionable conduct as police officers

occurs on duty. or off, or whether they

20

wear the ear stud on duty or off." Id.

(emphasis added). Such a_ rationale

justifying the reprimands is

constitutionally defective since, by

definition, community stendards are by

their very nature arbitrary and thereby,

fail the substantive due process rational

relationship test. Kelley 425 U.S. at

248.

By relying on ae small community

standard, the Seventh Circuit Court adopts

a test that is impossible to implement.

Under the Seventh Circuit's viewpoint, if

Peotone's Police structure and/or citizens

were against plaid Bermuda shorts, black

“concert” T-Shirts, Air Jordan gym shoes,

bright pink or green baseball caps etc.,

then a police officer's wearing of any of

these “objectionable” items of personal

apparel would subject him or her to a

reprimand. The ear studs in this case as

a piece of ornamental jewelry are in

principal, no different than the items

noted above. They are all transitory

items of personal dress that can be

removed at any time. To allow the Peotone

community to set the standard for the off

duty dress of its police officers allows

for small communities to foster a “Salem

Witch Hunt" mentality’.

The arbitrary acceptance of the Peotone

community standards as justifying the

reprimands of the Petitioners’ off duty

wearing of ear studs denied the

“Petitioners their Fourteenth Amendment

liberty interest to dress as they pleased.

"In an increasingly crowded society in

* If everyone says she is a witch then she

must be a witch.. If everyone says that men

should not wear ear studs, then men must

not.

to

to

which it is already extremely difficult to

maintain one's identity aand_ personal

integrity, it would be distressing, to say

the least, if the government’ could

regulate our personal appearance

unconfined by any constitutional

strictures whatsoever.” Kelley, 425 U.S.

at 253 (Marshall, J. dissenting). For all

of the foregoing reasons, the Petitioners

request that this Court grant their

Petition.

2. The Seventh Circuit's decision

finding that the Petitioner's

associational rights were not violated by

their reprimand is in conflict with the

Ninth and Eleventh Circuits’ view of a

police officer's off duty associational

rights and also is in conflict with the

decisions of this Court.

This Court stressed in NAACP F

23

Alabama, 357 U.S. 449, 460 (1958), that

the freedom to engage in association for

the advancement of beliefs and ideas is a

basic part of the Fourteenth Amendment due

process guarantee of liberty. In NAACP,

Supra, the Court inferred the right to

free association from the First Amendment

protection of speech and assembly.

Several Courts of Appeals have found a

violation of a policeman's freedom to

associate when that officer's employers

have disciplined the officers for off-duty

related activities. Thorne v. City of El

Segundo, 726 F.2d 459, 471 (9th Cir. 1983)

cert den. 469 U.S. 979 (1983) (held that

questioning of female police applicant

about her off-duty sexual behavior

violated her right to freely associate);

and Wilson v. Taylor, 733 F.2d 1539, 1543-

1544 (11th Cir. 1984) (police officer

24

dating a convicted felon's daughter; held:

discharge of officer violated his right to

freely associate and that dating

constitutionally protected conduct).

The rationale for the holdings in

above cases is deeply rooted in

philosophical interpretation of

Constitution. This Court found that,

For at least a quarter century, this

Court has made clear that even

though a person has no “right” to a

valuable government benefit and even

though the government may deny him

the benefit for any number

reasons...It may not deny a benefit

to a person on ae basis’ that

infringes his constitutionally

protected interests...This would

allow the government to produce a

result which [it] could not command

directly . . . . Such interference

with constitutional rights

impermissible. Perry v. Sindermann,

408 U.S. 592, 597 (1972).

was

the

the

the

Perry and especially Wilson v. Taylor,

supra, highlight tthe reasons for

the

placing of constitutional safeguards upon

the Responderts' conduct in this case.

The Petitioners in the instant case wanted

merely to wear a simple, non-offensive

article of ornamental jewelry during their

own private leisure time. In doing so,

Petitioners were expressing their desire

to associate with others who condone the

wearing of an earring as part of their

leisure dress. The constitution is

intended to allow people like the

Petitioners to feel unrestrained freedom

to lawfully associate with others without

feeling inhibited or without feeling that

they will somehow be penalized. The

Petitioners were very active in the

Peotone community before their reprimands

and demotion. The Respondents' actions

resulted in a chilling effect on

Petitioners' freedom of association.

Petitioners were inhibited from freely

26

associating with their friends and family

due to a fear of further’ reprimand.

Respondents’ conduct, in demoting Rathert

and reprimanding Zybak, caused Petitioners

to be held up to public ridicule, to be

ostracized from community activities and

events and to be socially shunned by their

peers.

The types of associations affected by

the Respondents' arbitrary actions mainly

aeeies on the Petitioners' relationships

with their family and friends. In Roberts

v. United States Jaycees, 468 U.S. 607

(1984) this Court distinguished between

two types of constitutionally recognized

associational subclasses - certain

intimate human relationships and

indispensable means of preserving other

individual liberties. Id. 468 U.S. at

617-618. The plaintiffs in the instant

af

case fall under the first classification

of intimate human relationships. In

defining which relationships were constitu-

tionally protected under the right of free

association, this Court stated that,

(Tlhe constitutional shelter

afforded such relationships reflects

the realization that individuals

draw much of their emotional

enrichment from close ties with

others. Protecting these

relationships from unwarranted state

interference therefore safeguards

the ability independently to define

one's identity that is central to

any concept of liberty... [Family

relationships] are distinguished by

such attributes as relative

smallness, a high degree of

selectivity in decisions to begin

and maintain the affiliation, and

seclusion from others in critical

aspects of the relationship. Id.

468 U.S. at 619-620.

The Respondents' letters of reprimand

had a chilling affect on Petitioners’

right to freely associate with their

family members, friends and peers. Such

28

an infringement on these intimate

relationships is constitutionally infirm.

The Seventh Circuit and the district

court took the position that Petitioners

could not establish a deprivation of their

right to associate because they did not

suggest that they wore ear studs in order

to express a particular social, economic,

educational , religious, or cultural

vlewpoint. Citing Roberts v. United

States Jaycees, 468 U.S. 607 (1984).

Petitioners submit that this reading of

Roberts is too narrow. As this Court

stressed in NAACP v. Alabama, 375 U.S.

449, 460 (1958): "it ais immaterial

whether the beliefs sought to be advanced

by the association pertain to political,

economic, religious or cultural matters."

Wilson v. Taylor, 733 F.2d 1539 (11th

Cir. 1984) advances Petitioners' view that

29

the First Amendment freedom of association

also applies to purely social or personal

associations such as those involved in

this case.

For all of the foregoing reasons, the

Petitioners would respectfully request

that this Court grant this Writ.

36 The Seventh Circuit's decision in

this case ignored the basic tenets of Rule

56(c) of the Federal Rules of Civil

Procedure and its action has so far

departed from the accepted and_ usual

course of judicial proceedings as to call

for an exercise of this Court's power of

supervision.

In order to prevail on a motion for

summary judgment, the moving party has the

burden to demonstrate the absence of a

genuine issue of material fact and the

judgment should be granted in the moving

30

party's favor as a matter of law.

Richardson v. Penfold, 839 F.2d 392, 394

(7th Cir. 1988). In determining whether

there is a genuine issue of material fact,

the court must construe the facts alleged

in the light most favorable to the party

opposing the motion for summary judgment.

Id. Robbins v. Lynch, 836 F.2d 330, 333

(7th Cir. 1988).

A genuine issue for trial exists if

there is sufficient evidence, drawing all

reasonable inferences in favor of the non-

movant, to allow a rational jury to return

a verdict for that party. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986).

Summary judgment should be reversed if

a review of the entire record, after

drawing all inferences from the facts in

the light most favorable to the non-

movant, reveals that inferences contrary

31

OE ————————

to those drawn by the trial court might be

permissible. Jakubiec v. Cities Service

Corp., 844 F.2d 470, 471 (7th Cir. 1988).

In this case, Senior Circuit Judge

Fairchild, in his concurring opinion,

alluded to two issues where he believed

factual disputes existed. (App. A at p.

15 n.1l, 16) (Fairchild, J. concurring).

Since at least one judge found the

existence of disputed factual] issues, the

Seventh Circuit's decision upholding the

District Court's summary judgment finding

waS in error. Therefore, on procedural

grounds under Rule 56(c) of the Federal

Rules of Civil Procedure, this Court

should now grant the Petitioner's Writ of

Certiorari or in the alternative summarily

reverse the judgment of the Seventh

Circuit and remand this case for a trial

on the merits. (See City of Los Angeles

32

v. Heller, 475 U.S. 796, 798 (1986)).

CONCLUSION

For the foregoing reasons, this

petition for a writ of certiorari should

be granted.

Dated August 27, 1990

Respectfully submitted,

Mark L. LeFevour

Attorney for Petitioners

1707 "L” Street, N.W.

Suite 1050

Washington, D.C. 20036

(202) 828-4141

John L. Gubbins

of Counsel

542 S. Dearborn

Suite 610

Chicago, Illinois 60604

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APPENDIX

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APPENDIX A

3n the

United States Court of Appeals

For the Seventh Circuit

No. 89-1435

MARVIN RATHERT and GARY ZyBak,

Plaintiffs-Appellants,

v.

VILLAGE OF PEOTONE, WARREN BAKER,

RONALD CRAMER, JOHN HALL, JAMES

JANDA, THOMAS TUCKER, KENNETH

EATINGER, RICHARD ANDERSON, and

Gary N. Bocarrt,

Defendants-Appellees.

from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 87 C 0957—James F. Holderman, Judge.

Arcuep Novemper 29, 1989—DecipEep JUNE 1. 1990

Before Bauer, Chief Judge, Woop, JR., Circuit Judge,

and FAIRCHILD, Senior Circuit Judge.

Woop, Jr., Cirewit Judge. Male police officers wearing

earrings?’ Yes, and that gives rise to the constitutional .

' What plaintiffs wore was either a gold or silver ear stud about

an eighth of an inch in diameter. Since an earring is defined in

both the Oxford and Webster Dictionaries as an ornament worn

on the earlobe, it appears that an ear stud is a minimum size ear-

ring. We will, however, hereafter refer to the particular earrings

as ear studs as did the district judge.

2a

issues in this case. Marvin Rathert and Gary Zybak, police

officers of the Village of Peotone, Illinois, brought this civil

rights action under 42 U.S.C. § 1983 against the Village

and various of its officials.2 Count I of their complaint

alleges that they were disciplined without regard to their

rights to liberty and due process under the fourteenth

amendment and Count II all that plaintiffs’ free as-

sociation rights had been vio in } ame of their

first amendment rights.? In addition to the ear stud con-

troversy, ee complain they were reprimanded by

letters and disciplined for allegedly frequenting taverns

while off duty and becoming intoxicated and for failing to

compiete certain police eT As a result of these

activities, both plaintiffs ered letters of reprimand be-

ing placed in their police personnel files and Rathert was

demoted from sergeant to patrolman with diminished pay.

Upon cross-motions for summary judgment, the defen-

dants’ motion for summary judgment was allowed as to

all defendants. As to Count I, the substantive due proc-

ess count, the district court stated in its January 30, 1989,

Memorandum Opinion and Order that the dispositive issue

was whether the reprimand letters bore a rational rela-

tionship to a legitimate public interest. Plaintiffs argued

that the allegations in the reprimand letters of public in-

toxication, failure to complete assigned duties and being

disruptive were merely a pretext to discipline plaintiffs

for their wearing ear studs. The district court held that

the pretext issue was not material to the motion for sum-

mary judgment on the ground that even if defendants’

sole reason for disciplining plaintiffs was that plaintiffs

2 Defendants, in addition to the Village, include the Village Chief

of Police, George ; members of the Police Committee of the

Board of Trustees of the Village, Ronald Cramer, John Hall and

James Janda; and members of the V Board of Trustees,

Thomas Tucker, Kenneth Eatinger, and Richard Anderson.

3 The district court had previously dismissed much of Count |

of this two-count complaint that alleged deprivation of property

rights. That dismissal has not been appealed.

3a

wore ear studs, the reprimand was rationally related to

a legitimate public interest.

Count II of the complaint alleged that defendants vio-

lated plaintiffs’ first amendment right of association. Plain-

tiffs contended that by wearing an ear stud they “were

expressing their desire to associate*with others who con-

done the wearing of an ear stud as part of their leisure

dress” and that the defendants’ discipline in some way

“chilled” that desire. The district judge found no associa-

tional interest in those circumstances to warrant constitu-

tional protection and granted summary judgment for all

defendants also on Count II.4

I. FACTUAL BACKGROUND

Plaintiffs, in a general and conclusory manner, branded

allegations of public intoxication and dereliction of duty

as merely pretextual reasons for their reprimands. Rathert

claimed that he was never informed of reports that he

was intoxicated while off duty or that he failed to com-

plete assignments. Zybak claimed that Chief Bogart never

wrote down the reports of his intoxication while off duty,

his failure to appear on the range for firearms training,

or his involvement in an automobile accident. Rathert was

merely unable to recall being intoxicated and failing to

complete assignments and Zybak did not deny the truth

of the reports of his intoxication and problems in carry-

ing out his duties. In allowing the defendants’ motion for

summary judgment, however, the district court did not

resolve the pretext issues and we likewise find there is

no need to pursue it. Plaintiffs do not argue that any faii-

ure of notice or hearing in connection with their repri-

mands raises a constitutional or factual issue. We there-

fore view this case as appropriate for summary judgment.

‘ The district court, by disposing of the complaint on its merits

by summary judgment, did not reach the issue of the qualified

immunity of the defendants.

4a

The general factual background is neither disputed nor

complicated. Both plaintiffs reside in the Village of Peo-

tone, Illinois, and are officers serving on the village police

department. Peotone is a village in a rural area south of

the Chicago metropolitan area and has a population of less

than 5,000 with a correspondingly smiall police force. At

the time the events giving rise to this action occurred, the

force had only two isory officers, defendant Chief

of Police Bogart, and who was then a sergeant.

Rathert has been on the village police force since 1980

except for a short period when he worked for the Will

County Sheriff's Police. Zybak became a part-time village

police officer in 1979 and a full-time patrol officer and in-

vestigator in 1982. Chief Bogart conceded that both offi-

cers had performed their duties effectively up until late

1986 when the present troubles surfaced. Thereafter Chief

Bogart claims the plaintiffs’ performance as police officers

deteriorated.

In December of 1986 things happened which have evoked

the most attention. That month Rathert went to a jewelry

store in Matteson, Illinois, The Jewel Box, had his left

ear pierced, and purchased his gold ear stud. Prior to that

time Rathert had not worn any type of earring. He ex-

plained that he started wearing the ear stud for personal

reasons, because he “‘wanted it,’”’ and because he liked

ear studs for fashion. As between his right or left ear

there was no particular reason to have his left ear pierced

except he wanted the ear stud there. Zybak, following

Rathert’s lead, went to the same jewelry store a short

time later, had his left ear pierced, and bought himself

an ear stud like Rathert’s, but silver. Zybak explained

that he wore his ear stud for “personal reasons,” for per-

sonal jewelry adornment, and for fashion.

Both plaintiffs claimed there was no intent to wear their

ear studs while on duty, but that it was necessary to do

so for the first six.weeks to prevent the newly pierced

holes from closing. Each wore a Band-Aid over the ear

stud while on duty so as to try to hide the ear stud.

-

Zybak had some trouble with his Band-Aid ear stud con-

cealment. On a cold day without his knowledge, the Band-

Aid dropped off while he was on duty. Zybak explained

this had happened even though he periodically checked

to make sure the Band-Aid was still in place. While off

duty, neither officer wore a Band-Aid and the ear studs

were easily visible.

It did not take Chief Bogart and the other defendants

long to react to these ear stud developments. Chief

drafted a reprimand letter for each plaintiff that was ap-

proved in early January 1987 by the other defendants in

their official capacities. Each plaintiff then received the

reprimand letter, which asserted that the wearing of an

ear stud violated the Peotone Police Policy Manual, that

each plaintiff had been seen intoxicated in public, and that

each oe failed to complete certain police assignments, all

in violation of their police regulations. A copy of each plain-

tiffs own reprimand letter was placed in his individual

personnel file. In addition to his reprimand letter, Rathert

was demoted from the police force’s only sergeant, and the

only supervisor in addition to Chief Bogart, to patrol offi-

cer. A resulting decrease in salary accompanied his demo-

tion. Upon receiving these reprimands, plaintiffs immedi-

ately ceased to wear their ear studs on or off duty, or to

frequent taverns or elsewhere where liquor was dispensed.

Although the reprimand letters went into their person-

nel files, not into the newspaper at least not through any

action vi the defendants, plaintiffs complained about the

resulting effects of the reprimand letters. They claimed

that they were held up to public ridicule, were ostracized

from community activities and events, and were socially

shunned by their peers, even family and friends, all of

which disrupted their right to freely associate. Plaintiffs

blamed these alleged consequences of the reprimands only

upon the fact that they were disciplined, and not upon the

fact that they were village policemen who wore ear studs

in public and sometimes, it appears, may have conducted

themselves in public in other ways unsuitable for police

5a

6a

officers. Their complaints about the public reaction, how-

ever, illustrate in their own words some of the adverse

impact their conduct had on the morale, discipline, and

effectiveness of the Peotone Police Department, the under-

lying issue in this case.

At the time the police department had a policy manual

that governed police conduct and service. Plaintiffs were

to be, and were, familiar with it. In general, each

officer was to lead an exemplary private life. Officers were

subject to duty call twenty-four hours a day, and were

required to respond when called whether on duty or off,

day or night. In addition, intoxication was prohibited while

on or off duty. Any conduct unbecoming an officer, dis-

obedience to orders, insubordination and other mentioned

deficiencies were likewise prohibited. The manual also set

forth certain standards for uniforms for male and female

officers. One standard prohibited ornamental items. Female

officers were itted to wear facial makeup, but only in

moderation. Hair ribbons and barrettes were not allowed.

Some things, ro instance, the ban on intoxication and the

prohibition of beards, would obviously apply to male offi-

cers on duty or off. Nothing was said specifically in the

manual about male officers wearing earrings or ear studs.

probably because it was not anticipated that male officers

would do so.

The depositions of Chief Bogart, all members of both

the Police Committee and the Village Board of Trustees,

reveal the unanimous view that the ear studs worn by the

plaintiff officers, on duty or off, had a detrimental effect

on police department morale and diminished the respect of

Peotone residents for their police force. The chief believed

that the wearing of the ear studs by an officer, on or off

duty, detracted from police professionalism and violated

the manual requirement to remain neat and groomed. The

chief further explained that the citizens of Peotone knew

and recognized who their police officers were whether the

officers were in uniform or not. The chief had never heard

of a police department that permitted its officers to wear

7a

any kind of earring, except for undercover work. Plaintiffs

were not engaged in undercover police activity. A member

of the Village Police Committee claimed that the officers

had become the laughing stock of the community. Another

committee member was of the opinion that the village citi-

zens would not accept male officers wearing any type of

earring, morale would suffer, and the department would

function less effectively. Another member of the Village

Board said that the comments of village citizens indicated

astonishment at male officers wearing earrings, and that

fact created public doubts about discipline within the vil-

lage police force.

Others who testified by deposition offered similar views.

A fellow police officer stated that he had been questioned.

laughed at, and hurt by village citizens because his two

plaintiff colleagues wore ear studs. Even in plaintiffs’ fam-

ilies the ear stud caused some problems. Rathert’s wife

and sister explained that Peotone is a small town with a

conservative viewpoint and that the majority disapproved

of a male officer wearing an ear stud. Rathert’s wife, ob-

viously during a time of marital difficulties, also called

Chief Bogart on a number of occasions to complain about

her husband. She accused her husband of drinking and

returning home and slapping her around. She also accused

both plaintiffs of being ‘“‘gay,” an accusation that Chief

Bogart said he did not believe. On another occasion Mrs.

Rathert allegedly got Rathert’s revolver and was going

to shoot Zybak. Mrs. Rathert also expressed the view that

Rathert deserved the punishment he received, and that

the residents of Peotone and surrounding areas were “‘in

an uproar.” After plaintiffs had their ears pierced, some

residents commented to her that Rathert’s ear stud de-

tracted from his authority as a police officer. Thus, the

ear piercings themselves appears to have caused plaintiffs

more immediate and personal problems than merely con-

Stitutional ones.

8a

II. ANALYSIS

A. The Substantive Due Process Claim

The district court and the parties that the disposi-

tive issue as to Count I is whether the reprimand letters

issued by defendants to plaintiffs affected a constitutional-

ly protected liberty interest, and whether the police policy

expressed in those letters bears a rational relationship to

a legitimate public interest. In other words, we must de-

termine whether plaintiffs asserted a cognizable substan-

tive due process claim under 42 U.S.C. § 1983.

The reprimand letters were based on three grounds:

public intoxication, failing to complete police assignments,

and wearing an ear stud on duty and off duty in violation

of the Peotone Police Manual. The arguments here focus

not on any claimed right to wear ear studs while on duty

and in uniform, but when off duty and not in uniform.

Their ear studs, plaintiffs claim, expressed their constitu-

tional liberty interest in “individualized dress.” Plaintiffs

do not claim that they cannot be prohibited from wearing

ear studs on duty even though ear studs or earrings are

not specifically mentioned in the manual.

The district court observed that hae ye the Supreme

Court has not conclusively determined whether the four-

teenth amendment creates a liberty interest in matters

of personal appearance, this circuit has held that “choice

of appearance is an element of liberty.’’ Pence v. Rosen-

quist, 573 F.2d 395, 399 (7th Cir. 1978); see also Crews

v. Clones, 432 F.2d 1259 (7th Cir. 1970); Breen v. Kahl,

419 F.2d 1034 (7th Cir.), cert. denied, 398 U.S. 937 (1969).

Therefore, we begin as did the district court, by deter-

mining whether the reprimand letters bear a rational rela-

tionship to a legitimate public interest. The district court

found such a relationship to exist and so do we.

The district court, as well as both parties, relied on

Kelley v. Johnson, 425 U.S. 238 (1976). In Kelley, the

president of the Patrolmen’s Benevolent Association chal-

lenged the constitutionality of a county regulation limiting

9a

the length of hair worn by male county police officers.

The Court found no substantive due process fault with

the regulation. In reaching that conclusion, the Court con-

sidered it “highly significant” that the protection of the

fourteenth amendment was being sought, not by a mem-

ber of the citizenry at large, but by and for police officers.

The Court had previously recognized that alfhough state

employment cannot be conditioned on surrender of first

amendment rights, the state, nevertheless, has interests

in regulating the speech of its employees. Those interests

differ significantly from those the state possesses in con-

nection with the regulation of the speech of the citizens

in general. See Pickering v. Board of Educ., 391 U.S. 563,

568 (1968); CSC v. Letter Carriers, 413 U.S. 548 (1973);

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

The Court found that there was a significant distinction

between the police and the public at large because of the

police duty to keep the peace and the myriad other re-

sponsibilities of the police that have no counterpart in the

public at large. In considering those other demands on

police, the Court noted that police must wear standard

uniforms specific in each detail, must salute the flag when

in uniform, and may not take an active role in local politi-

cal affairs. All of those common police requirements in-

fringe on a police officer’s freedom of choice in personal

matters, and the political activity ban applies even when

the police officers are off duty. Although the court of ap-

peals had found that there was no justification to charac-

terize the police as “‘para-military” and thus deserving of

“unique judicial deference,’’ the Supreme Court held that

the county’s choice of an organizational structure for its

police force was nevertheless entitled to deference. A po-

lice structure had been chosen by the county that the

county obviously believed would better enable the police

to fulfill their responsibilities. That county organizational

choice necessarily emphasized the overall need for disci-

pline, esprit de corps and uniformity.

The Court in Kelley then viewed the challenged hair

length regulation in the context of the county’s police

10a

structure. The Court observed that the states’ police power

to guard the safety of persons and property by employing

a uniformed police force to aid in those responsibilities

requires that the choice of organization, dress, and equip-

ment be a state decision entitled to a presumption of legis-

lative validity. The Court also noted that in other contexts

there is wide latitude accorded the government in the “‘dis-

patch of its internal affairs.” Jd. at 247. The ultimate ques-

tion, in the Court’s view, was not “whether the State can

‘establish’ a ‘genuine public need’ for the specific regula-

tion . . . [but] rather whether [the police officers] can

demonstrate that there is no rational connection between

the regulation . . . and [police responsibilities].’”” Jd. The

Court held that the hair | regulation clearly survived

the plaintiff's constitutional enge. The Court recognized

that the overwhelming majority of state and local police

are uniformed because similarity in appearance of police

officers is desirable. This similarity may be desirable be-

cause it allows members of the public to readily recognize

— officers or because it aids police esprit de corps.

e Court held that either reason provided a sufficiently

rational justification for the regulation to defeat the con-

Stitutional challenge.

The Supreme Court’s holding in Kelley clearly supports

the district court’s decision in this ear stud case. The hair

length regulation in Kelley applied to officers ‘“‘while on

duty” and the officers in the present case seek only to

wear their ear studs while off duty. That difference, how-

ever, is only superficial. The hair length restriction in

Kelley, by its very nature, applied whether the police of-

ficers were on or off duty. The Court upheld the regula-

tion even though it governed the police officer’s personal

appearance when he was not performing his police duties

and was not in uniform. So it is in the present case.

Few would quarrel with the Peotone police regulations

that specifically prohibit, without reference to whether

on duty or off, an officer being publicly intoxicated, or

from using narcotics without a doctor’s prescription. Peo-

tone also prohibits beards and requires mustaches to be

lla

neatly trimmed. Those restrictions also reach an officer’s

personal conduct when not on duty. The record demon-

strates that the wearing of ear studs by Peotone police

officers was seen by those who run the police structure,

as well by as the public generally, to have an adverse

impact on police effectiveness.

The Peotone police officers are members of a small com-

munity. They are generally known and recognized. There

is little difference in the way the Village’s police officers

are publicly viewed, whether their objectionable conduct

as police officers occurs on duty or off, or whether they

wear the ear stud on duty or off. Plaintiffs admit being

subject to ridicule, but ascribe it to their being disciplined,

not to the wearing of ear studs. Such a claim, however,

a the blame for their discomfort. The rec-

ord shows that even some family members and officer col-

leagues were disturbed by the ear studs as much as were

the city officials. That earrings or ear studs were not

specifically prohibited in the regulations is of no conse-

quence, as the regulations are sufficient to reasonably

ascribe the outlines of what is prohibited and what is ex-

pected of police officers whether on duty or off. No one

could reasonably read the regulations as containing some

implied exception at odds with the general tenor of the

rest of the regulations that would permit certain off duty

conduct that nevertheless would have an adverse impact

on the police force.

It is obvious from the record that plaintiffs not only

caused an adverse impact on police discipline, esprit de

corps and uniformity, factors found by the Supreme Court

in Kelley to be of controlling consequence, but caused

great public dissatisfaction as well. Plaintiffs totally fail

to meget the burden imposed by Kelley of showing no ra-

tio nnection between the male ear stud prohibition

and their police responsibilities.

Plaintiffs, relying on Roberts v. United States Jaycees,

468 U.S. 609 (1984), argue that the opinion of the district

court “sends the message that state employees have no

12a

liberty rights as citizens to freedom of choice or individ-

uality. For if the employees exercise those rights in a

oe lp pneneg tbe cpline 2O dep ge Be hry

viduality serve to justify prohibition or punishment.”

Roberts concerned the admission of women to membership

into the Jaycees, a nonprofit national corpora-

tion. In the present case the plaintiffs mi the mes-

sage that is directed only to the distinct circumstances

of the police officers of Peotone.

Plaintiffs also claim that the district court’s holding can

ey ee BA me

orce is a —— ilitary’s

need for nearest ormity, a view that at least

one district court in this circuit has rejected. Kukla v.

Village of Antioch, 647 F. . 799 (N.D. Ill. 1986). Kukla

involved a — sergeant a female dispatcher

unmarried . The court avoided

Kelley by pen hes the conduct complained about

in Pa fell - the intimacies of the iaht in

an t choice carried more weight in

a aamenad than selection of hair length. How-

ever, in the instant case we are concerned with police ap-

and behavior in public, not just with the per-

sonal intimacies of the home. Our holding is limited to

the particular facts in this case. Plaintiffs have not argued

they have a right to wear ear studs while vacationing out-

side the general Peotone area and not subject to call, and

we do not decide that question.

Plaintiffs also argue that the only interest in prohibiting

the wearing of ear studs while off duty is to promote Peo-

tone’s conservative viewpoint and narrow-mindedness and

to suppress individuality, but that such an interest is not

legitimate. That is an astounding argument. Plaintiffs were

not hired as police officers to change “conservative or

narrow-minded” Peotone, as Peotone is characterized by

them. The important responsibilities of these police offi-

cers do not include attempting to change the Village's

political and social outlook, whatever it may be, by wear-

ing ear studs.

13a

B. The First Amendment Claim

The complaint’s Count II alleges first amendment viola-

tions in the briefest and most conclusory way by claim-

ing only that the disciplining of plaintiffs violated their

constitutional rights to free association. In the district

court plaintiffs elaborated on the complaint by claiming

that by wearing ear studs they “were expressing their

desire to associate with others who condone the wearing

of an ear stud as part of their leisure dress.’ Plaintiffs

claimed that the defendants’ disciplinary actions in some

way “chilled” that desire.

Plaintiffs rely upon Wilson v. Taylor, 733 F.2d 1539

(11th Cir. 1984), to demonstrate that a violation of a police

officer’s freedom of association occurs when disciplined for

off duty activities. A police officer in that case was fired

for dating the adopted ter of a convicted felon re-

uted to be a mob leader. t court held that “dating

is a type of association that must be protected by the first

amendment’s freedom of association.” Jd. at 1544. In any

event, however a comparable case on those facts might

fare in this circuit, there is in the present case no dating

or other intimate personal relationship.

We are no more impressed with plaintiffs’ first amend-

ment argument than was the district court. Plaintiffs are

not prohibited from associating with others who wear ear

studs, even other male police officers if they can find any.

Plaintiffs have identified no police force anywhere where

lice officers wear ear studs on or off duty, nor identi-

ed any other particular group that does. As the district

court noted, the Supreme Court has recognized a right

to associate for the purpose of engaging in activities pro-

tected by the first amendment. Roberts, 468 U.S. 609

(1984). In determining whether a particular association is

sufficiently personal or private to warrant constitutional

protection, courts consider factors such as size, purpose,

selectivity, and whether others are excluded from critical

aspects of the relationship. Board of Directors of Rotary

International v. Rotary Club, 481 U.S. 537, 546 (1987).

l4a

Plaintiffs, however, have totally failed to identify any as-

sociational interest as police that warrants consti-

tutional protection, nor could the district court find any

suggestion by plaintiffs that they wear ear studs to ex

tiffs’ rastifiockion for wearing the studs i neo that

or ear is

they ‘ t to” and “for ion.”” Those reasons

be enough for members of the public to wear ear studs,

but not for police officers who work for the public.‘

II. CONCLUSION

For the foregoing reasons, the district court’s decision

is, in all respects, affirmed.

* The officer in Etscheid v. Police Bd. of Chicago, 47 Ill.

App. 124 (1964), had a unique problem. In upholding his dis.

charge the court, citing a book entitled Police Administration by

O. W. Wilson, a former Superintendent of Chicago Police. makes

the point that for the courts to become the final arbitrators in

police disciplinary matters will cause a breakdown of police disci-

pline and morale and frustrate police administration.

15a

FAIRCHILD, Senior Circuit Judge, concurring. I do not

take issue with the propriety of a police department reg-

; ing a uniform to be worn on duty and pro-

the use of personal ornaments while on duty. If

the j t of the district court went no further than

a oy the ition against wearing ear studs while

on duty, readily join in affirming it. The problem

which gives me pause is that the judgment now being

aimed ¢ upholds a prohibition ee the wearing of ear

studs by male police officers while off duty, at least in

the particular town where this case arose.

I think we all agree that in order to sustain a regula-

tion of off duty conduct, the regulation must be rationally

wo

f

a legitimate public interest such as the effec-

tiveness of the . Here it appears that the rational

relationship rests the alleged proposition that a sig-

nificant segment of the town’s population attribute to a

male who wears an ear stud some personal characteristic

such that they will ridicule rather than respect him. The

theory appears to be that at least in a small community

this response by citizens will impair the officer’s effec-

tiveness on duty even though it is only off duty that he

is seen wearing the stud.

It would be hard to argue with the proposition that if

j conduct of a police officer while off duty tends

to show a trait which will adversely affect his performance

on the job, or to cause a loss of respect for him on as

well as off the job, the prohibition or discipline of such

conduct is rationally related to a legitimate public interest.

Intoxication in ic would be an example of a case where

a judge can decide a prion that a rational relationshi

exists.’ In Swank v. Smart, ___ F.2d __, decided Marc

27, 1990, a married police officer had been disciplined, in

part, for his off duty conduct in taking a young woman

‘ As explained by Judge Wood, intoxication while in public was

another for di in this case. Because there was some

dispute t the facts, the adequacy of this ground is not before us.

l6a

he met on the street for a late night motorcycle ride. This

court decided, a priori, that disciplining him was not un-

reasonable. Slip op. at 8. I do not believe, however, that

judges can say a priori that a male’s wearing an ear stud

tends to cause disrespect for him as a policeman.

The question we now reach is whether the court must

find that the community attitude adverse to ear studs ex-

ists in fact before such attitude can be a link in a rational

relationship between prohibiting off ear studs and

the public interest. Or, is it enough to find that in tak-

ing action, the Chief and other decision makers reasonably

perceived that this community attitude existed?

If a factual determination be required, the fact has not

yet been determined. There has been no trial, and although

many assertions concerning community attitude were be-

fore the court on summary judgment, they were not un-

isputed. One witness testified that she heard no reaction

to Rathert’s ear stud before this lawsuit began, and that

after it was publicized, many persons commented that the

Chief had no reason to demote Rathert.

I conclude, however, that the rational relationship test

requires no more than that the decision makers reach their

conclusion rationally, and that their reasonable perception

of the community attitude is enough. I reach this conclu-

sion reluctantly because of the likelihood that this is just

an instance of bias against those who do not conform.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

17a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARVIN RATHERT and )

GARY ZYBAK )

)

Plaintiffs, ) No. 87 C 0957

)

V. )

)

VILLAGE OF PEOTONE, )

WARREN BAKER, RONALD)

CRAMER, JOHN HALL, )

JAMES JANDA, THOMAS )

TUCKER, KENNETH

EATINGER, RICHARD

)

)

ANDERSON, and GARY )

N. BOGART, )

)

)

Defendants.

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

Plaintiffs filed this action under 42

U.S.C. Section 1983 alleging that

defendants violated their rights under the

First and Fourteenth Amendments to the

United States Constitution. Both parties

have filed motions for summary judgment,

asserting that the essential facts in the

case are undisputed. For the following

18a

reasons, defendants" motion for summary

judgment is granted and plaintiffs’ motion

for summary judgement is denied.

FACTS

Plaintiffs Marvin Rathert and Gary

Zybak reside in the Village of Peotone,

Illinois and are police officers for the

Peotone Police Department ("PPD"). At the

time the events in dispute in this case

occurred, plaintiff Rathert was the only

sergeant on the force and Officer Zybak

was a patrolman. Defendant Gary N. Bogart

served as Police Chief of the Peotone

Police Department. Defendants Ronald

Cramer, John Hall, and James Janda were

members of the Police Committee of the

Board of Trustees of -the Village of

Peotone. ~ Defendants Thomas’ Tucker,

Kenneth Eatinger, and Richard Anderson

were members of the Village Board of

19a

Trustees of the Village of Peotone.

The parties concede that until late

1986 the officers had performed their

duties effectively. The Chief claims,

however, that plaintiffs’ performance

deteriorated in 1986. He reports that, on

a few occasions, the officers’ were

disruptive and publicly intoxicated. In

addition, he asserts that plaintiffs

failed to complete certain of their

assigned duties until Chief Bogart

compelled them to do so.

Then, in December 1986, each plaintiff

had his left ear pierced and began wearing

an ear stud for "personal fashion

reasons." Plaintiffs assert that (for the

first six weeks) they had to wear their

ear studs continually in order to prevent

the hole in their ear lobes from closing.

The officers therefore wore their ear

20a

studs openly while they were off duty

during the last two weeks of December,

1986. They also wore their ear studs

while on duty during this period, but wore

them covered with a bandaid.

On December 24, 1986 Chief Bogart

drafted a reprimand letter. This letter

asserted that (1) plaintiffs" ear studs

violated the Peotone Police Policy Manual;

(2) plaintiffs had been seen in public

while intoxicated; and (3) plaintiffs

failed to complete certain of their work

assignments. (DX D and E). Officer

Zybak's letter became a permanent part of

his personnel file. Officer Rathert not

only received a reprimand letter but also

received a demotion to patrol officer and

a corresponding decrease in his salary.

Plaintiffs contend in this lawsuit that

the reprimand letters violated their

——

2la

Fourteenth Amendment liberty interest in

"individualized dress” and their First

Amendment right of association.

DISCUSSION

Summary judgment is appropriate only if

the parties’ evidentiary materials show

that there is no genuine issue as to any

material fact. Fed. R. Civ. P. 56(c). A

genuine issue of material fact exists "if

the evidence is such that a reasonable

jury could return a verdict for the

nonmoving party." Anderson v. Liberty

Lobby, Inc., 106 6.Ct. 2305, 22510 ti See).

If a party fails to make a_=e showing

sufficient to establish the existence of

an element essential to its case, and on

which it will bear the burden of proof at

trial, there can be no genuine issue of

fact, and summary judgment is mandated.

Celotex Corp. v. Catrett, 106 &. Ct. 2546,

2533 (1986).

A. Substantive Due Process

In order to succeed on their due

process claim, plaintiffs must show (1)

that Chief Bogart's reprimand letters

affected a constitutionally protected

liberty interest, and (2) that the

department policy (as expressed in the

letters) bears no rational relationship to

a legitimate public interest. Kelley v.

Johnson, 425 U.S. 238, 96 S. Ct. 1440,

1444 (1976); Pence v. Rosenquist, 573

F.2d 395, 399 (7th Cir. 19786); Kuklia v.

Village of Antioch, 647 F. Supp. 79, 808

(N.D. Ill. 1986).

Plaintiffs assert that their ear etude

expressed their constitutional liberty

interest in “individualized dress.” (P.

Mem. at 13). Although the Supreme Court

has not conclusively determined whether

23a

the Fourteenth Amendment creates a liberty

interest in matter of personal appearance,

see Kelley, 96 S. Ct. at 1444, the law is

clear in this circuit that "choice of

appearance is an element of liberty.”

Pence, 573 F.2d at 399. Therefore, this

court may assume for the purposes of this

motion that Officers Rathert and Zybak

have a liberty interest in their

appearance, including an interest in

wearing an ear stud. Cf. Olesen v. Board

of Education, 676 F. Supp. 820, 822 (N.D.

Ill. 1987)(male students have a liberty

interest in wearing an earring to school).’*

The dispositive issue in this case

1. Because the court finds that plaintiffs

have a liberty interest in their choice of

dress and appearance, it need not decide

whether plaintiffs have a liberty interest

under the "“stigma-plus test.” See Board of

Regents v. Roth, 408 U.S. 564, 92 S. Ct.

2701 (1971); Albamonte v. Bickley, 573 F.

Supp. 77, 80 (N.D. Ill. 1983).

24a

therefore becomes whether the reprimand

letters that defendants issued to

plaintiffs bear a rational relation to a

legitimate public interest. Defendants

assert that plaintiffs' ear stud violated

certain provisions of the Peotone Police

Policy Manual. (Exhibit B to the

Complaint, DX B) ("Manual”).? Police

department regulations, based as they are

on the department's method of organizing

its force, are presumptively § valid.

Kelley, 96 S. Ct. at 1446; Kukla, 647 F.

Supp. at 809. Defendants interpreted

these regulations to prohibit male

. Specifically, defendants assert

that plaintiffs' ear studs violated the

provision which prohibits any addition to

the authorized police uniform without

approval of the Police Chief (Manual at

22); the provision which prohibits "conduct

unbecoming to a police officer” (Manual at

14); and the provision prohibiting “hair

ribbons, barretts, and other ornamental

items.” (Manual at 23).

25a

officers from wearing ear studs in public,

even while they are off duty. Chief

Bogart and the Police Committee reasoned

that permitting male police officers to

wear ear studs in public would not only

detrimentally affect police department

morale but also would diminish the respect

iocal residents hold for the PPD.

Protecting the esprit de corps of the

police force is a legitimate interest.

Kelley, 96 S. Ct. at 1445; Kukla, 647 F.

Supp. at 808. It is undisputed that the

Village of Peotone is a relatively sma)]l

town with a relatively small police

department. (Rathert Dep. at 24.).

Members of the police force not only work

closely with one-~ another, but also

interact frequently with members of the

community. (Rathert Dep. at 51; Zybak

Dep. at 13). In such a close environment,

the overall need for discipline and

uniformity among police officers becomes

especially important. Kelley, 96 S. Ct.

at 1445. The fact that Officer Rathert

was one of only two supervisory officers

at the time he received his reprimand

letter increases the reasonableness of the

Chief's belief that his ear stud would

detrimentally affect the morale of the

force. It therefore was reasonable for

the defendants to believe that plaintiffs’

ear studs would adversely affect the PPD.

The evidence submitted by the parties

affirms defendants' belief that’ the

plaintiffs’ ear studs adversely affected

the PPD. Chief Bogart apparently received

reports and comments from the members of

the Peotone community concerning

plaintiffs’ ear ‘studs. (Bogart Dep. at

31-34, 55). The Chief presented these

27a

comments to the Board of Trustees and the

Police Committee. (Cramer Dep. at 9-10,

27; Janda Dep. at 10; Tucker Dep. at 5-7).

One of plaintiffs’ fellow officers, Jackie

Cote, stated that he has been questioned,

laughed at and hurt by residents of

Peotone because of plaintiffs’ ear studs.

(Cote Dep. at 24-25). Officer Zybak

likewise admitted that he has been the

subject of derogatory comments by fellow

officers and members of the Peotone

community. (Zybak Aff. Paragraph 9; Zybak

Dep. at 21, 51). Even officer Rathert's

wife testified that residents of Peotone

and the surrounding areas were “in an

uproar” after plaintiffs had their ears

pierced. (T. Rathert Dep. at 17-18, 36).

Some individuals even commented to her

that they believed Officer Rathert's ear

stud detracted from his authority as a

police officer. (T. Rathert Dep. at 36).

After considering defendants’

justification for disciplining Officers

Rathert and Zybak and their evidence

concerning the effect of plaintiffs’ ear

studs on the Peotone community, the court

concludes that the department policy

prohibiting male police officers from

wearing ear studs in public bears a

rational relationship to a legitimate

department interest. Plaintiffs have

failed to produce evidence to show

otherwise. Consequently, summary judgment

for defendants on Count I is appropriate.’

» Much of the plaintiffs’ evidence on

this motion concerns the other two reasons

defendants stated for disciplining

plaintiffs -- public intoxication and

dereliction of duty. Plaintiffs assert

that these two reasons were merely a

pretext and that defendants issued the

reprimand letters solely because of

plaintiffs’ ear studs. However, evidence

of pretext is not material to this motion

for summary judgment. Even if defendants’

29a

B. Right of Association

Count II of the complaint states that

defendants violated plaintiffs’ First

Amendment right of association.

Plaintiffs contend that by wearing an ear

stud they “were expressing their desire to

associate with others who condone the

wearing of an ear stud as part of their

leisure dress.” (P. Mem. at 26). They

clain that defendants' disciplinary

actions in some way “chilled” this desire.

(P. Mem. at 27).

The Supreme Court has recognized a

right to associate for the purpose of

engaging in those activities protected by

sole reason for disciplining plaintiffs was

the fact that they wore ear. studs,

defendants’ reprimand was rationally

related to a legitimate public interest.

Defendants therefore did not violate

plaintiffs’ rights under the Fourteenth

Amendment.

30a

the First Amendment. Roberts v. United

States Jaycees, 468 U.S. 607, 104 S. Ct.

3244, 3249 (1984). The First Amendment

protects those relationships that involve

"deep attachment and commitments” to the

few other individuals with whom one shares

"not only a special community of thoughts,

experiences, and belief but also

distinctively personal aspects of one's

life.” Id. at 3250. In determining

whether’ a particular association is

sufficiently personal Or private to

warrant constitutional protection, courts

consider factors such as size, purpose,

selectivity, and whether others are

excluded from critical aspects of the

relationship. Board of Directors of

Rotary International v. Rotary Club, 107

S. Ct. 1940, 1946 (1987); Roberts, 104 S.

Ct. e¢ Saae-

ee

3la

Plaintiffs Rathert and Zybak have not

articulated an associational interest

which warrants constitutional protection.

Plaintiffs do not suggest that they wear

ear studs in order to express a particular

political, social, economic, educational,

religious or cultural viewpoint. Roberts,

104 S. Ct. at 3252. They do not correlate

their interest in wearing an ear stud with

any expressive activity whatsoever.

rurther, they do not claim to associate

with any other individuals who wear ear

studs. Plaintiffs are not members of an

identifiable group of persons who believe

that men are entitled to wear ear studs or

that exclude other individuals who do not

wear ear studs. Plaintiffs’ ear studs

Simply do not implicate a constitutionally

protected relationship. Defendants’

reprimand did not impinge on plaintiffs'

32a

rights under the First Amendment. Summary

judgment for the defendants on Count ITI

therefore is appropriate.“

CONCLUSION

For the reasons stated herein,

defendants’ motion for summary judgment is

GRANTED and plaintiffs’ motion for summary

judgment is DENIED.

ENTER:

JAMES F. HOLDERMAN

United States District Judge

DATED: January 30, 1989

_

Because defendants" motion for

summary judgment is granted on the merits

of the First and Fourteenth Amendment

issue, the court need not determine whether

the defendants were protected by qualified

immunity.

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