Opposition Brief — City of Topeka Street Department v. Kansas Commission on Civil Rights

Supreme Court, 8.

FILED

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LIBRARY,

SUPREME COURT, U. s. > 1873. :

| Reson RODAZ, JP CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73... 452

CITY OF TOPEKA, KANSAS,

CITY OF TOPEKA STREET DEPARTMENT,

Petitioner,

vs.

THE KANSAS COMMISSION ON CIVIL RIGHTS,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

CHARLES S. Scott, Attorney

Kansas Commission on Civil Rights

1155W State Office Building

Topeka, Kansas 66612

Davin L. RYAN

Attorney at Law

209 Washburn Law School Building

Topeka, Kansas 66621

PB. L. MENDENRALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

INDEX

OPINIONS BELOW 1

JURISDICTION 2

QUESTION PRESENTED 2

STATUTES AND REGULATIONS INVOLVED ............ 3

STATEMENT OF FACTS 4

ARGUMENT 5

I. Municipality Has No Standing to Raise the

Alleged Constitutional Question in Federal Court 5

II. Federal Issues Not Originally Presented or

Fully Developed in Courts Below Will Not Be

Considered in the Supreme Court of the United

SB Ee nA OOS sex ek Saeko aes 5

III. No Due Process Question Is Presented ................ 7

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APPENDIX A (Petitioners in Kansas District Court

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APPENDIX B (Petitioners Statement of Points on

Appeal to Kansas Supreme Court) stntcaiatiiceamtalidiati A5

Table of Authorities

CasESs

Baker v. Carr, 360 US. 106 (1GG1). ............-c-ccccscsccccscsessssce 2,5

Board of County Commissioners of Johnson County v.

Brown, 183 Kan. 19, 325 P.2d 382 (1958)... 6

CIO v. McAdory, 325 U.S. 472 (1944) .. 6

Coleman v. Miller, 307 U.S. 433 (1939) 0.22.22. 2

England v. Louisiana Board of Medical Examiners, 375

U.S. 411 (1964) SERN SNe ete SCREEN EMTS 6

Gomillion v. Lightfoot, 364 U.S. 339 COED ecissinsdasetne 5

Head v. New Mexico Board of Examiners in Optome-

try, 374 US. 424 (1963)

Moore v. Starkey, 185 Kan. 26, 340 P.2d 905 (1959) ....

National Van Lines Inc. v. Jones, 192 Kan. 338, 388

P.2d 660 (1964) 6

Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1918) ... 2,5

Risty v. Chicago, R.I. & P. Ry. Co., 270 U.S. 378 (1925) 2

Shelley v. Kraemer, 334 U.S. 1 (1948) 6

Trenton v. New Jersey, 262 U.S. 182 (1922) .................... 2,5

Wilcott v. Murphy, 204 Kan. 640, 465 P.2d 959 _......... 7

Williams v. Mayor, 289 U.S. 36 (1932) ....................-....-- 2,5

Zwickler v. Koota, 389 U.S. 241 (1967) 6

OruHER AUTHORITIES

Davis, Administrative Law Treatise §23.18 (1970

Supp.) 6

K.A.R. 21-22-17 2,7

KSA. 44-1010 3,7

K.S.A. 60-2701 6

Ryan and Carpenter, Dubious Doctrines in Administra-

tive Law, 11 Washburn L.J. 351 (1972) 7

In the Supreme Court of the United States

OCTOBER TERM, 1973

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CITY OF TOPEKA, KANSAS,

CITY OF TOPEKA STREET DEPARTMENT,

Petitioner,

vs.

THE KANSAS COMMISSION ON CIVIL RIGHTS,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondent, The Kansas Commission on Civil Rights,

opposes the Petition for Writ of Certiorari filed herein by

Petitioner, City of Topeka, Kansas, Street Department for

the following reasons.

OPINIONS BELOW

The Petition for Writ of Certiorari correctly identifies

relevant proceedings and opinions below, except it fails to

include the relevant pleading in Kansas district court con-

cerning the Federal Constitutional issue.

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JURISDICTION

This is a controversy concerning proper statutory con-

struction of state law and procedure which involves no

substantial federal question. Petitioner attempts to inflate

state issues into federal issues under a Fourteenth Amend-

ment due process theory.

As a municipal corporation, Petitioner has no stand-

ing to bring a federal action against the State of Kansas

from which Petitioner’s authority derives (Baker v. Carr,

369 U.S. 186, 289 (Frankfurter, J., dissenting) (1961);

Coleman v. Miller, 307 U.S. 433, 441 (1939); Williams v.

Mayor, 289 U.S. 36, 37 (1932); Risty v. Chicago, R.I. & P.

Ry. Co., 270 U.S. 378 (1925); Pawhuska v. Pawhuska Oil

Co., 250 U.S. 394, 399 (1918).). The state’s legislative

power to regulate petitioner absent the protection of the

Fourteenth Amendment to the Constitution of the United

States is traditionally unquestioned (Trenton v. New

Jersey, 262 U.S. 182 (1922).).

QUESTION PRESENTED

Of first importance to Petitioner’s “question” it must

be noted that the Commission’s administrative rule does

not state (as Petitioner asserts) that “all denials” for re-

hearing will be acted on in writing. K.A.R. 21-22-17 pro-

vides: “When the commission denies an application for

rehearing. . .” it will act in writing. The Supreme Court

of the State of Kansas in its opinion in this matter, as cited

by Petitioner (Petitioner’s Appendix B, at 17 et seq.)

clearly finds that only those denials which are affirma-

tively made before the ten (10) day statutory period for

Commission action elapses require written notice because

such action would commence the thirty (30) day time for

appeal. If the Commission does not affirmatively act, the

POOP Le Ae

time for appeal simply starts to run within ten (10) days

from the date the rehearing application was filed.

It appears the real “question” is:

1. Whether the action of the Supreme Court of the

State of Kansas affirming the lower court judg-

ment holding the time for appeal from the Com-

mission’s order commences to run on the date

which the Commission served its decisional order

unless the Commission affirmatively acts on a peti-

tion for rehearing within ten (10) days in which

case written notice is required, is consistent with

the due process of law required of the Fourteenth

Amendment to the Constitution of the United

States.

STATUTES AND REGULATIONS INVOLVED

Kansas Statute, K.S.A. 44-1010, regarding rehearing 4

and appeal:

44-1010. Rehearing, when; effect of order changing

original decision. Any party being dissatisfied with

any order or decision of the commission may, within

ten (10) days from the date of the service of such

order or decision, apply for a rehearing in respect to

any matter determined therein; the application shall be

granted or denied by the commission within ten (10)

days from the date same shall be filed, and if the

rehearing be not granted within ten (10) days it shall

be taken as denied. If a rehearing be granted the

matter shall be determined by the commission within

thirty (30) days after the same shall be submitted.

No cause of action arising out of any order or de-

cision of the commission shall accrue in any court

to any party unless such party shall make application

4

for a rehearing as herein provided. Such application

shall set forth specifically the ground or grounds on

which the applicant considers such order or decision

to be unlawful or unreasonable. No party shall, in

any court urge or rely upon any ground not set forth

in said application. An order made after a rehearing

abrogating, changing or modifying the original order

or decision shall have the same force and effect as

an original order or decision. (L. 1961, ch. 248 §7;

June 30. Emphasis added to pertinent part.).

STATEMENT OF FACTS

The facts of the case are stated fully in the decision

of the Kansas Supreme Court (Petitioner’s Appendix B,

at 19).

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ARGUMENT

I.

Municipality Has No Standing to Raise the Alleged

Constitutional Question in Federal Court.

This court has consistently refused to find that “the

Federal Constitution restricts state power to design the

structure of state: political institutions.” This policy is

effected by denying standing to municipal corporations

or their agencies (insofar as claims are made by the sub-

divisions themselves) seeking to challenge state action

which may or may not infringe the interest of some sepa-

rate unit within the state’s administrative structure (Baker

v. Carr, 369 U.S. 186, 289 (Frankfurter, J., dissenting)

(1961).). Consequently, as a municipal corporation, Peti-

tioner has no standing to bring a federal action against

the State of Kansas from which Petitioner’s authority de-

rives (Williams v. Mayor, 289 U.S. 36, 37 (1932); Pawhuska

v. Pawhuska Oil Co., 250 U.S. 394, 399 (1918); Trenton

v. New Jersey, 262 U.S. 182 (1922); Gomillion v. Lightfoot,

364 U.S. 339 (1969).).

II.

Federal Issues Not Originally Presented or Fully

Developed in Courts Below Will Not Be Considered

in the Supreme Court of the United States.

It must be noted that Petitioner states the due process

issue was first raised in the Supreme Court of the State

of Kansas (Petitioner’s Certiorari Petition, p.6). Examina-

tion of Petitioner’s district court pleadings show only a

Sixth Amendment argument as selectively absorbed by

the Fourteenth Amendment was alleged (See Respondent’s

Appendix A). This argument was not raised in the Su-

‘

.

4

preme Court of the State of Kansas and no due process

argument was included in Petitioner’s Statement of Points

relied on in the course of its appeal to the Kansas Su-

preme Court (See Respondent’s Appendix B). Petiticner

states the issue was first raised in the Supreme Court

of the State of Kansas but it did not set out the issue

in its “Statement of Points Relied On” in its appellate

brief to that court. The Kansas Court repeatedly holds

only issues affirmatively presented to and decided by the

trial court will be considered on appeal (National Van

Lines Inc. v. Jones, 192 Kan. 338, 388 P.2d 660 (1964);

Moore v. Starkey, 185 Kan. 26, 340 P.2d 905 (1959); Board

of County Commissioners of Johnson County v. Brown,

183 Kan. 19, 325 P.2d 382 (1958); see Kansas Supreme

Court Rule No. 6, K.S.A. 60-2701.). This rule is in accord

with Supreme Court of The United States Rule 23 (1)

(f) (Head v. New Mexico Board of Examiners in Optome-

try, 374 U.S. 424 (1963); Shelley v. Kraemer, 334 US. 1

(1948); CIO v. McAdory, 325 U.S. 472, 477 (1944).).

This court has invoked the abstention doctrine in cases

where there is “the susceptibility of a state statute of

a construction by the state courts that would avoid or

modify the constitutional question.” (England v. Louisiana

Board of Medical Examiners, 375 U.S. 411 (1964); Zwickler

v. Koota, 389 U.S. 241 (1967); see Davis, Administrative

Law Treatise §23.18 (1970 Supp.).). Petitioner has net

originally presented, presumed or fully developed in lower

courts the due process argument he now pleads. The

instant “issue” is not properly raised for review by this

Court.

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III.

No Due Process Question Is Presented.

Assuming the issue had been properly raised, Peti-

tioner would be in no better position. Petitioner’s due

process cases are not in point as they may be well dis-

tinguished on the simple fact that in those cases those

agency rules are not inconsistent with relevant legislative

authority, whereas in the instant case, the Kansas Com-

mission on Civil Rights Rule in question, K.A.R. 21-22-

17, would be inconsistent and in direct conflict with its

underlying legislative authority, K.S.A. 44-1010, if it is

interpreted as Petitioner’s desire. The Kansas Supreme

Court applies to the instant Commission rule complained

of, K.A.R. 21-22-17, the universal rule of construction which

requires agency rules to be interpreted in a manner con-

sistent with state statutes. Rules cannot exceed the legis-

lative authority conferred (Wilcott v. Murphy, 204 Kan.

640, 465 P.2d 959 (1970); see also Ryan and Carpenter,

Dubious Doctrines in Administrative Law, 11 Washburn

L.J. 351, 359 (1972).). In its decision, the Kansas Supreme

Court utilizes the foregoing doctrine and finds the Kansas

Commission on Civil Rights had not violated its rules

since it initiated no action which would require written

notice. Where the commission had not acted within ten

(10) days, the Kansas statute, K.S.A. 44-1010, required

Petitioner to initiate appeal within thirty (30) days. Iron-

ically, Petitioner now complains of due process when in

point of fact, Petitioner did not comply with the Kansas

statute which is intended to facilitate due process by pro-

hibiting post-hearing procedures which are protracted or

unduly delayed.

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—eerceed

CONCLUSION

The Petitioner has not presented a new or novel ques-

tion for the Court to resolve, has not properly raised and

preserved his due process question below, and lacks the

requisite standing. The decision below does not deny due

process. We request the petition for certiorari be denied.

Respectfully submitted,

Kansas COMMISSION ON CIVIL RIGHTS

CHARLES S. Scort

Commission Attorney

Kansas Commission on Civil Rights

1155W State Office Building

Topeka, Kansas 66612

Davin L. RYAN

Attorney at Law

- 209 Washburn Law School Building

Topeka, Kansas 66621

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APPENDIX

APPENDIX A

PETITIONERS

KANSAS DISTRICT COURT APPEAL

IN THE DISTRICT COURT OF SHAWNEE COUNTY,

KANSAS

SIE sesctiaceiadiuniiibssen

On the complaints of ORIS TUNLEY, JR.,

VERNON STEELE, and HAROLD

ROUNDTREE,

Complainants,

Vs

THE CITY OF TOPEKA STREET DEPARTMENT,

Respondent,

vs

THE KANSAS COMMISSION ON CIVIL RIGHTS,

Third Party.

Amended Answer, Counterclaim, and Appeal from

Final Order of Kansas Commission on

Civil Rights

The City of Topeka, Kansas, a municipal corporation,

and for its cause of action against the Kansas Commis-

sion on Civil Rights, does state and allege that:

1. On November 24 and 25, 1970, the Kansas Com-

mission on Civil Rights held a hearing on the matters of

the complaints of Oris Tunley, Jr., Vernon Steele and

Harold Roundtree, complainants, for alleged unlawful

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employment practices by the City of Topeka Street De-

partment.

2. On March 20, 1971, the Commission rendered its

Findings of Fact, Conclusions of Law, and Order against

the Respondent City of Topeka Street Department, a copy

of which is attached and marked Exhibit “A” and here-

by incorporated by reference.

3. On March 26, 1971, the City of Topeka Street De-

partment filed an Application for Rehearing on the Find-

ings of Fact, Conclusions of Law, and Order entered by the

Commission, a copy of which is attached, marked Exhibit

“B” and hereby incorporated by reference.

4. The City of Topeka and through former As-

sistant City Attorney Bruce Harrington, on numerous oc-

casions since the filing of the Application for Rehearing

requested orally that it be permitted to orally argue the

merits of the Application for Rehearing pursuant to Kan-

sas Administrative Regulation 21-22-8 of the Kansas Com-

mission on Civil Rights. See Exhibit “C”, an affidavit

to that effect, attached and hereby incorporated by ref-

erence.

5. On all occasions referred to in paragraph 4, the

KANSAS Commission on Civil Rights summarily denied

said requests.

6. The City of Topeka Street Department has been

and still is waiting for an opportunity to be heard on the

Application for Rehearing pursuant to K.A.R. 21-22-8 and

the Sixth Amendment to the United States Constitution.

7. Until the Commission complies with its own rules

and regulations and permits the City of Topeka Street

Department to argue the merits of the Application for Re-

hearing, it is estopped from proceeding to enforce said

Order entered with respect to the City of Topeka Street

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Department, and the thirty (30) day appeal from the Com-

mission to the District Court to obtain judicial relief pur-

suant to K.S.A. 44-1011 (1970 Supp.) is hereby tolled.

8. The Commission is bound by its Rules and Regu-

lations promulgated pursuant to K.S.A. 44-1005 (1970

Supp.).

9. The provision of K.S.A. 44-1010 to the effect that:

Any party being dissatisfied with any order or deci-

sion of the commission may, w:thin ten (10) days

from the date of the service of such order or decision,

apply for a rehearing in respect to any matter deter-

mined therein; the application shall he granted or de-

nied by the commission within ten (10) days from

the date same shall be filed, and if the rehearing be

not granted within ten (10) days it shall be taken as

denied...

are unconstitutional and void as contrary to the Sixth

Amendment to the United States Constitution in that the

pertinent part “. . . and if the rehearing be not granted

within ten (10) days it shall be taken as denied” denies

the Respondent to the right to be heard pursuant to said

constitutional provision as selectively absorbed by the

Fourteenth Amendment to the United States Constitu-

tion.

10. The Commission, by and through Assistant At-

torney General of Kansas, Jack N. Williams, filed a Peti-

tion for Enforcement of Final Order in the District Court

of Shawnee County, Kansas, on June 4, 1971.

11. Said act of the Commission was arbitrary, ca-

pricious, and oppressive and should be enjoined.

12. The City of Topeka hereby incorporates by ref-

erence the statements and allegations found in the orig-

inal ANSWER filed in the original captioned case.

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13.. Pursuant to K.S.A. 44-1011 (1970 Supp.) the City

of Topeka demands judicial review of the Order of the

Kansas Commission on Civil Rights, and that the action

of the Commission be set aside for the reasons set out

in the Application for Rehearing, attached and marked

Exhibit “B”.

WHEREFORE, the City of Topeka prays that the Com-

mission be enjoined from enforcing its Order in the above-

captioned matter until such a time as the Commission

permits the City to exercise its right to be heard with

respect to the Application for Rehearing. The City prays

that the Court declare K.S.A. 44-1010 unconstitutional and

void in that it is contrary to the Sixth and Fourteenth

Amendments to the United States Constitution. The City

prays that the Court determine that the appeal statute

be tolled until such time as the Commission complies with

its own Rules and Regulations and that the City be per-

mitted to Appeal the Order of the Commission for judicial

review to set aside pursuant to K.S.A. 44-1011 (1970

Supp.). The City also requests its costs in the above

action and such other relief as the Court deems just and

equitable.

City of Topeka, Kansas

By Edwin P. Carpenter

Assistant City Attorney

215 E. 7th

Topeka, Kansas

Attorney for the Respondent

[Exhibits A, B & C omitted here. ]

AS

APPENDIX B

PETITIONERS STATEMENT OF POINTS ON APPEAL

TO THE KANSAS SUPREME COURT

Statement of Points Relied On

I

The district court erred in ruling that the Civil Rights

Commission was not required to give the Respondent an

opportunity to orally argue its Application for Rehearing

pursuant to K.A.R, 21-22-8.

II

The district court erred in ruling that the Civil Rights

Commission was not required to give the Respondent notice

in writing when it denies an Application for Rehearing,

pursuant to K.A.R. 21-22-17.

III

The district court erred in ruling that the statute

of limitations of thirty (30) days, pursuant to K.S.A. 44-

1010, was not tolled by the Commission on Civil Rights

failure to follow its own Rules and Regulations and that

the Notice of Appeal of the Respondent was void.

IV

The district court erred in ruling that KAR 21-22-

17 was consistent with K.S.A. 44-1010 construing “shall”

in the KAR to mean “may.”