# Opposition brief to Petition for Writ of Certiorari — Watts v. Seward School Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1249%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition brief to Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 921 ## Text LIBRARY. a thr Seprne. tort us | 7 ILE SUPREME COURT, U. 5S. = | : IAN 12 i970 RK IN THE Gan Court of the Huited — October Term, 1969 + | JAMES A. WATTS and WALTER B. BLUE, Petitioners v SEWARD SCHOOL BOARD AND BOA OF EDUCATION APPEAL HEARING COMMITTEE, Respondents BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF ALASKA “ Theodore M. PedSe, Jr. . BURR, PEASE & KURTZ, INC. 825 West Eighth Avenue Anchorage, Alaska ; INDEX ‘ ; Page The Decision of the Alaska Supreme Court Rests. on an Adequate, Non-FederalGround .........6..00< cess 2 The Questions Raised in the Petition Are Not of Sufficient vonnnone Stature to Justify Granting oF vacinns cing RL EE ETE CE RHE oe re ne 4 The Decision of the Alaska Supreme Court is in Accord With the Decision of This tn Ree ere ame Men sneynbe 6 COME | os ot tee eae es mig kiearey eae ee | a INDEX OF CITATIONS Cases: District of Columbia v. Sweeney, 301 U.S. 631 (1940) . 5 Layne & Bowler Corp..v. Western Well Works, Inc., 261 7 ee AEE UNS ea Gk SKN ee 5 Meehan v. Macy, 392 F.2d 822 (1968) Te Pe re oe Michel v. State of Louisiana, 350.U.S. 91, 97 (1955) . 3 Milk Wagon Drivers. Union v. Meadowmoor ‘Dairies, Inc., 312 U.S. 287, 94 (1940) Seeker ee 7 Pickering v. Board of Education, 391 U.S. 563,68 (1968) 2-8 Pollastrine v. Severance, 375 P.2d 528,31 (Alaska 1962) . 3 Puentes v. Board of Education, NY. CRO | OW ova eee iy ew Rk Cee ee 4 Rice v. Sioux City Memorial: Park Cemetery, 349 U.S. eRe CERNE ure Maire aN Gautier y 5,6 Sanuita v. Common Laborer’s Union, 402 P.2d 199,201 LIA TEMOOE. x careh rie erene a are 3 Watts v. Seward School Board: 454 P.2d 732, 37 (Alaska ROOD fos REE ee ee eh ee weuveseee Williams v. Georgia, 349 U.S. 375 (NE) 4 5 Vc eas So 3 STATUTES Ae ee ee Ae RES ee 5 AE ES AA os ke ON eee ek Ore 5 : REGULATIONS Seward School Board Regulation E(7) .............. ES Sia ciasides pscascks Stciansianiaetase es coca y f MEE BEAM OS cme reg ¢ RPS Js IE SPUR PERE IR PT ES TET Ss ik cal Os SE eR et eee eonaret a ‘IN THE (Supreme Court of the Huited States | October Term, 1969 No. 573 JAMES A. WATTS and WALTER B. BLUE, Petitioners ara SEWARD SCHOOL BOARD AND BOARD OF EDUCATION APPEAL HEARING COMMITTEE, Respondents ---——-1 BRIEF IN OPPOSITION TO” PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF ALASKA / : - ‘ } f 2 E ‘ ry ‘THE DECISION OF oe ALASKA SUPREME COURT RESTS ON AN ADEQUATE, NON-FEDERAL. . OUND. In passing upon this case after the second remand from the Supreme Court of the United States, 391 U.S. 592 (1968), the Supreme Court of Alaska: reaffirmed: its prior determination that. Petitioners Watts and Blue violated Regulation E-7 of the Seward School Board, and that this was a sufficient, independent ground for their nonretention. __. Watts v. Seward School Board, ‘454° P.2d ce 37 (Alaska 1969); Regulation E-7 Provided: ie Grievances, complaints and communications from employees shall be submitted to the Board through the Superintendent. Any employee or group of employees may at any timé appeal to.the Board. - It is uncontested that: Petitioners - Simultaneously delivered copies of their “Open Letter to.the Seward School Board” fo the Superintendent, m¢ bers of the School Board, and: the. public, in substantial lation of. Regulation E-7. App. 7-75, 186, 198-99. ! ; ; Petitioners have attempted to attack this finding in several ways. First, they have alleged that Regulatidn--E-7 was not properly adopted, and therefore its -violation may not serve as a ground. for nonretention. The State Board of Education Appeals Hearing Committee and the Alaska Supreme Court, however, found that there was sufficient. evidence to infer that the Regulation had properly been adopted by the Seward School Board, that at the relevant time it was a valid regulation within the school system, apd that Petitioners had contractually agreed to abide by that regulation. App. 24-25, 73-74. The Alaska Supreme Coyprt reaffirmed _ this determination after a thorough and ind pendent review of the evidenee. 454 P.2d 732,37.’ In addition, Regulation E-7 was ; “App.” refers to the joint icc filed by the parties i in No. 325, October Term, 1967. Petitioner has filed a,motion to use that record in this case, and Respondent hereby joins in that motion. = 3 contained in a handbook of regulations’which was distributed to all the teachers in the ‘Seward School system, and Petitioners were personally familiar with Regulation E-7. App. 178 (Blue), 208 (Watts); 74. Second, Petitioners have attempted to raise constitutional objections to Regulation E-7. They now argue that it is both vague and overbroad, and on those bases constitutionally defective. This argument was originally advanced, however, in a petition for rehearing after the Supreme Court of Alaska had rendered its second decision in this matter. App. 119-122. At that time the Supreme Court of Alaska held that it would not consider new arguments raised in a petition for rehearing, which had not been briefed and argued in‘ accordance with that Court’s rules. App. 122-25. This holding was reaffirmed by the Alaska Supreme Court after the second remand from this court. 454 P.2d 732,37. It is well established law in this Court that reasonable. restrictions on the methods of raising constitutional arguments are valid, and the failure to comply with those restrictions will bar a party from resorting to those. arguments. E. G. Williams uv. Georgia, 349 U.S. 875 (1955): Michel v. State of Louisiana, 350 U.S. 91, 97 (1955). In this case the Supreme Court’ of Alaska has adopted a: procedural rule reqiring a party to raise all of its points on appeal in the first argument of the case, rather than holding some in reserve to be used in a_ potential petition for rehearing. This — requirement has been uniformly applied in other. cases. . Sanuita v. Common Laborer’s Union, 402 P.2d 199, 201 ~ (Alaska 1965); Pollastrine vu. Severance, 375 P.2d 528, 31 (Alaska 1962). Since this type of requirement obviously promotes the just and expeditious disposition of causes, it is submitted that this procedural _ requirement of the Alaska: Supreme Court is a valid restriction upon Petitioner’s right to advance arguments concerning any potential constitutional infirmities in Regulation E-7. - i In their brief filed with the Alaska Supreme Court after the second remand from this Court, Petitioners attempted to argue that the decision making process, through which Petitioners were dismissed was unconstitutional. In their one paragraph argument, however, they cited no cases other than those cited by this Court in the Pickering case, 391 U.S. 563, 68, N. 2 (1968). The Alaska Supreme Court, in its ] 3 ot . eo 4 consideration sili remand, refused to consider this argument on the same ground that it had refused to consider previous arguments concerning the constitutionality of Regulation E-7; i.e.s that il was not timely presented. Watts v. Seward School Board, 454 P.2d 732,37. II. - THE QUESTIONS RAISED IN THE PETITION ARE NOT OF SUFFICIENT } CONSTITUTIONAL STATURE TO | JUSTIFY GR'ANTING CERTIORARI A. This court should allow future decisions to clarify the various .considerations involved before laying down further guidelines for the decision of cases requiring a‘ court to balance the interest of employees in exercising their right to freedom of speech, and the State, as the employer, jn assuring an efficient civil service. In Pickering vs. Board of Education, 391 U.S. 563 (1968), this Court clearly recognized the myriad factual situations which might arise in ‘attempting to define the rights of public employees in the exercise of their rights under the First, Amendment. Jd. at 568-69. Thus, this Court specifically refrained from laying down.a firm rule under which all cases in this area must be decided, but rather held that each case must be adjudicated on its own merits, arid the interests of ~ the employee and the State -balanced in, each instance. The problem in any case is to arrive att a 1 balance between the ‘interests of the teacher, as a citizen, in commenting upon. matters’ of public concern ‘and the interest of the State, as an-employer, in promoting the efficiency of the public services it performs through its employees. t Id. ot 668. °° In response to the Pickering decision, a number of courts ~ have re-thought their position in this area. Puentes v. Board of Education, A N.Y. (1969); Meehan v. Macy, 5 392 F.2d 822 (1968). Their decisions further illuminate the many complexities and differing factual situations which may arise, and it is submitted that this Court should allow this process of illumination. to continue through lower ’ court decisions. C.f., Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70;77 (1955). Then, after a sufficient body of experience has developed,. this Court may take’ the opportunity to refine, its formulation of the rule governing the accommodation . of sthe First Amendment~- to public employment. To do so now, however, would be to proceed without the benefit and assistance which the decisions of other courts would provide. a B. A decision in this case would be of importance only to the litigant, and not to the public in general. As this Court observed in its first remand of this case to the Alaska Supreme Court, the statutory law of Alaska under which Petitioners were non-retained has been significantly altered since their. nonretention. App. 42-438. It has, in fact, been altered in such a manner that it would be impossible for _ the situation presented by Petitioners to arise again. A.S. 14.20.170(a) (2); 14.20.095. (See Appendix “A’’). Since Petitioners. would be the only people who could conceivably be directly affected by a decision in this case, the decision would be. without public importance. In such a situation, certiorari should be denied. Rice v. Sioux City Memorial Park Cemetery, 349 U.S..70 (1955); District of Columbia v. . Sweeney, 310 U.S. 631 (1940); Layne & Bowler Corp. v. Western Well. Works, Inc., 261 U.S. 387 - (192 3). In addition, since the Pickering case laid down the general considerations relevant. to decision in that and similar cases, a ‘ decision-in this - case ~ would not have significant value as precedent for the decision of futuré cases. Thus, the affect of any decision in this case would be even further restricted, and even less ‘‘public’’. It is well established law in this Court that certigrari “is not granted” merely .to decide interesting ‘ intellectual -problems, or’ even to dec ide limited controversies. Rather, *the policies governing: the issuance of a writ of certiorari are designed to reserve this Court’s time and attention ‘for problems of broad significance. Rice v. Sioux @° 6 ' City Memorial Park Cemetery, supra, at 74. In the area of the right of free speech enjoyed by public employees, the broad and significant question has been decided by the Pickering case. To grant certiorari here would be of stich limited significance that the writ should be denied. III. THE DECISION OF THE ALASKA SUPREME COURT IS IN ACCORD WITH THE DECISIONS OF THIS COURT. In the Pickering decision, this Court considered. four different factors in evaluating the State’s interest in regulating Mr. Pickering's freedom of speech. After this consideration, of course, it eoncluded that the State had no sufficient interest in such regulation and struck down Pickering’s dismissal. When Watts us..Seward School Board was remanded to the Alaska Supreme Court to be considered in the light of Pickering, the Alaska Supreme Court faithfully carried out the mandate of this Court. Since Pickering, Watts and Blue were all high school teachers, it seems likely that whatever potential State interest there is in regulating the freedom of» speech of these employees would be the same in both cases. — Thus, the Alaska Supreme Court evaluated the State interest in regulating the conduct of Watts and Blue by considering the same issues and problems considered by this court when it decided Pickering. After such reconsideration, the Alaska Supreme Court held that the nonretention of Petitioners Watts and Blue was justified. The issues considered by the Alaska Supreme Court are as follows: : : 1. Whether or not the statements by Watts and Blue would interfere with the close, working relationships and harmonious functioning of the school system. 2. Whether or not the issues raised by Watts and Blue were of general public concern. 3. Whether or not the Seward School Board could have 7 easily refuted Petitioners’ accusations by references to the public record. 4. The public reaction to the accusation of Watts and Blue. : In Pickering it was .determined by this Court that _Pickering’s statements were not directed at co-workers or immediate superiors; that. the .issues discussed by Pickering were of general public concern, since they were the subject of a local election; that his false statements were easily refutable by the school board ‘by a simple réference to the public record; and that the public reaction to Pickering’s statements ‘was one of marked apathy. The. Alaska Supreme Court, after an independent review, of the record, 454 P.2d 732,37, determined that the situation presented by Petitioners was precisely the opposite of the Pickering case in each of these four respects. Since this Court, while reserving to itself the right to make an independent examination of the record, always accords great, if not -controlling, weight to factual determinations of the state courts, Pickering v. Board of Education, supra at 578, n.2, and will only make an independent review of the record where it appears that a flagrant abuse of the First Amendment rights would otherwise occur, Milk Wagon Drivers Union v. eadowmoor Dairies, Inc., 312 U.S. 287,94 (1940), certiorari should be denied. The factual determinations made by the Alaska Supreme Court, after its independent review of the record, give no indication that a flagrant abuse of First Amendment rights has taken place, and, in the absence of such abuse, this court should accept the determinations of the Alaska Supreme Court. Once this is done, it is clear. that Watts presents an entirely different situation from Pickering. In Pickering, this Court determined that the State of Illinois had no greater interest in regulating Pickering’s speech than it did in regulating the speech of its citizenry as a whole. In this case, however, the state interest in regulating the speech of Petitioners is' substantially stronger ‘than Alaska’s interest in regulating the speech of its citizenry as a whole. As this ee arm ies the State has a significant ORT REE rs 8 interest in assuring the smooth and harmonious functioning of its Civil Service. At the same time it cannot be gainsaid that peo has interests as an employer in regulating the speesh of its employees that differ significantly from those it pOssesses in connection with regulation of the speech of the citizenry in general. Pickering v. Board of Education, supra, at 568. To this end, one of the considerations which must be weighed is fhe extent to which the Petitioners’ speech concerned people“with whom they had every day working contact. In this case, the statements made by Petitioners Watts and Blue concerned the Superintendent of Schools, who performed e sentially the ‘same functions as the principal would in Reps school system. 454 P.2d 732, 35. In the Seward schools Petitioners had constant contact with the Superintendent, and worked closely with him to: fulfil] the educational needs of the community. After independently reviewing the record, the Alaska Supreme Court determined that the statements made by Petitioners concerning the Superintendent would interfere with the close working relationship which had ‘existed previously. Jd. . é In Pickering the statements made concerned an_ issue’ which had _ been placed before the electorate during a municipal school bond election. In Watts, on the other hand, the statements made directly concerned the job performance of the Superintendent of Schools. App. 56-60. Whether or not to retain the Superintendent of Schools is not a question which would ever come before the electorate of Seward, since the Superintendent served at the pleasure of the Seward School Board. Since this was not a matter upon which, in the normal process of democratic decision making, the electorate of Seward would pass, the Alaska Supreme Court determined that the State’s interest in regulating the speech of Petitioners, as opposed to the need for informed public discussion, was significantly more Ibecelagt than it had been in Pickering. 454 P.2d 732, 35. Similarly, it should be observed that the regulations the State imposed upon Petitioners would tend to promote informed debate. among members of the school a Sa 9 board, the group ‘with decision making power in this instance, even though it may have temporarily curtailed public discussion of the issue. In Pickering, this Court observed that the matters which Pickering misstated could have been easily refuted by the School Board through references to the public record. The Board could easily have rebutted appellant’s errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation ‘in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the school that any harmful, impact on the public would be difficult to counter because of the teacher’s presumed greater access to the real facts. Pickering v. Board of Education, supra, at 572. In this case, however, the matters complained of dealt precisely and exclusively with ... matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher’s presumed greater access to the real facts. Id. In this situation, the careless falsehoods. of Petitioners _ could do substantially more harm to the efficient operation of ' the school system than could the accusations of Pickering. Lastly, in Pickering the public reacted. only apathetically to Pickering’s accusations. In Watts, however, the reaction was quite different. This was the initial phase of a campaign to have the Superintendent of Schools dismissed, and occasioned a substantial amount of public discussion. App. 182 (Blue); 160-61, 454.P.2d 732,37. Thus, it is clear that. this is not a case, such as Pickering, where nonretention was based merely upon the injured feelings of those against whom the public discussion was directed. On all these counts the interest in the State of Alaska regulating the speech of Petitioners is substantially greater 10 | mal than the interest of the State of Illinojs in regulating th speech of Mr. Pickering. Thus, after balancing these interests against the interest of Petitioners in being able to immediately make their grievances public, rather than taking the minimal amount of time necessary to comply with Regulation E-7, this Court should deny certiorari on the ground that the decision by the Alaska Supreme Court is consistent with the prior decisions of this Court, and with Pickering. ° CONCLUSION For the foregoing reasons and on the strength of the foregoing. authorities, Respondent prays that certiorari be denied. . . Respectfully submitted, Theodore M. Pease, Jr. BURR, PEASE & KURTZ, INC. 825 West Eighth Avenue Anchorage, Alaska Attorneys for Respondent, Seward School Board Dated: January 7, 1970 2 In opposition to the second petition for certiorari filed in this case Respondents also argued that the decision of the Alaska Supreme Court was consistent with prior decisions of this Court. The issues covered there have, however, receded considerably in importance since Picker- ing, and will therefore only be covered by reproducing the relevant portion of Respondents’ previous brief in Appendix “‘B”’. ee 11 . APPENDIX A A.S. 14.20.095 Right to comment and criticize not to be restricted. No bylaw or regulation of the commissioner of education, a . School board, or local school administrator may restrict or modify the right of a teacher to engage in comment and criticism outside school hours, regarding school personnel, members of the governing body of any school or school district, any other public official, or any school employee, to the same extent that any private individual may exercise the right. AS. 14.20.170 ' Dismissal. (a) A teacher, including a teacher who has acquired tenure rights, m&y be dismissed at any time only for the following causes: (1) incompetency, which is defined as the inability or the unintentional or intentional failure to. perform the teacher’s customary teaching duties in a satisfactory manner; (2) immorality, which is defined as the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude; or (3) substantial noncompliance with the school laws of the state, the regulations or bylaws of the department, the bylaws of the district, or the written rules of the superintendent. (b) A teacher may be suspended temporarily with regular compensation during a period of investigation to determine whether or not cause exists for the issuance of a notification of dismissal according to §180 of this chapter. a) 12 7 APPENDIX B THE DECISION OF THE SUPREME COURT OF ALASKA IS NOT IN CONFLICT WITH THE DE- CISIONS OF THIS COURT The Supreme Court of Alaska did not base its ‘de- cision on the abstract proposition that public employ- ment is a privilege not a right, nor on the theory that the power to withhold employment entirely includes the power arbitrarily to place conditions on employment when. granted. Instead, the court held that the Seward School Board was justified in not renewing petitioners’ contracts because their activities brought them and the teaching profession into public disgrace and undermined the morale and discipline of the local school system. Petitioners’ discharge was sustained because of thé spe- cific finding that their activities threatened. to impair the efficiency and integrity of the school system. This is an interest recognized by this Court in United Public Workers of America v. Mitchell, 330 U.S. 75 (1947) as justi- fying restrictions on the otherwise constitutionally guar- anteed rights of speech and association of government employees “ ‘within reasonable limits,’ even though the regulation trenches to some. extent upon unfettered political action.” 330 U.S. at 102. Even the state cases which petitioners assert to reflect constitutional phil- osophy. antithetical to that of the Supreme Court of Alaska, have recognized the compelling interest of state agencies in preserving an efficient, harmonious internal administration. E.g., Fort v. Civil Serv. Comm’n, 61 Cal. 2d 331, 38 Cal. Rptr. 625, 392 P.2d 385, 389 ( 1964), where the Court stated: ~ A strong case, we think, can also be made for the view that permitting a public employee ta:run or campaign against his own superior has so disruptive an effect on the public service as to warrant restric- tion. : \ In the case at’bar there can be no doubt of the divi- siveness of petitioners’ conduct.2 Since petitioners do not dispute the conclusion of the school board that they engaged in activities damaging to their own and to their 613 employer’s professional prestige, it can only be assumed that they are arguing that in spite of their disruptive conduct which threatened to impair the efficiency and destroy the integrity of the school system, they cannot be denied employment within the school. This claim is without merit. Moreover, petitioners’ false statements for which _ they were dismissed are not entitled to constitutional protection since they were made with reckless disregard for truth. The Supreme Court of Alaska stated: The production and distribution of the Open Letter - was a time-consuming and deliberate act. The false statements contained in it were not made in heated debate. The factual basis for the charges could have been verified by appellants if they had taken the time to do so. 421 P.2d at 607. Those are the elements of recklessness which, as noted by the Supreme Court*of Alaska, renders a statement beyond constitutional protection. Cf. Garrison v. Louisiana, 379 U.S. 64, 75 (1964).