Petition for Writ of Certiorari — Gutwein v. Easton Publishing Co.

INDEX

Page

a ssdneaauedecnee 2

Se PT EN Tee Te TET Cre Ce iveeueeeweeiane —

QursTion PRESENTED .....006000c0ees psessaces sosee 8

STATUTES AND CONSTITUTIONAL PROvIsIONS INVOLVED . 2

UNE Sn esdehensedeadansaens [eueeebasas Oe ‘as. 2

Reasons FoR GRANTING A Writ or CERTIORARI

A state may not constitutionally apply its civil rights

law enacted under a joint federal-state scheme in a

manner which denies constitutional remedies to an

acknowledged victim of racially vneinnnantiiie em-

I III ie on ho eciiew nick semen ecaneninniens 5

TRAN casa hbeananenteaeasnnawn sheenseeecesne Be

Aprenpix A—Order, Decisicn of Hearing Tribunal .. la

Aprenpix B—Memorandum and Order of Cireuit Court 4a

Appenpix C—Order of Court of Appeals ............ 7a

Aprennix D—Excerpts from Petitioner’s Brief Before

the Maryland Court Raising Federal Questions .. 2la

Aprrenpix K—Iixeerpts from the Maryland Fair Em-

ployment Practices Aet, Art. 49B, Md. Code Ann.

CEeg Oe EE kc a vp nc send cued veenceede ten 22¢

Appendix F—Excerpts from Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000(e) (1970) as

amended by the Equal Opportunity Act of 1972,

Ce WU Beet COST ives iabsvaucnawecaseekagees 23a

Aprenpix G—United States Constitational Provisions 25a

Arrenpix H—Complaint of Discrimination in Employ

WO 5s vs cde UiKEUN ue eek Leak eas keke eeasaeea 26a

(pene Se ee ee ee ee :

. Tm \

Te

|

%

x

£

7

Pieatisctisisa ss criowtinnw eto

\

li Index Continued

CITATIONS

Page

Cases:

Betts v. Easley, 561 Baw. 450 (IDG) once ccvcccsscs 7

Bibb v. Alton, 209 IIL 461, 70 N.E. 640 (1904) 2.2.2... 8

Burton v. Wilmington Parking Authority, 365 U.S.

Sa ROE a 649000046440 5 cRRRASS CEELEAMES 7

Crosslin v. Mountain States Tel. & Tel. Co., 400 U.S.

i eT eee Tt rer re Terre reer e 10

Evans v. Newton, 582 U.S. 296 (1966) .............. 7

Gilliam v. City of Omaha, 331 F. Supp. 4 (D. Neb.

1971), rev'd on other grounds, 459 F.2d 63 (Sth

CS OE ban chu eee ran thax cause Whee ee nek 6, 10

Gray v. Serruto Builders, Ine., 110 N.J. Super. 297,

ee See SEUOD sc cc ccakcs cheueascdcexsnus 8

Harkless v. Sweeney Independent Sehool Dest., 427

F.2d 319 (Sth Cir. 1970), cert. denied, 400 U.S. 991

PERE Sak lu bak de kkelle eo ke Waad hae & Oans aucun ee 8

Jenkins v. United Gas Corp., 490 F.2d 28, 34 (oth Cir.

ME TP LEWE VAR DRECEES Ua CAN SOLE RS ONE COONS ERES 7

Louisiana v. United States, 380 U.S. 145, 154 (1965) . 7

Love v. Pullman, 404 U.S. 522 (197 _ Sea re 10

MeCabe v. Atchison T.F.S.F.R. Co., 235 U.S. 151

ERPUEE shasvusuncceces Wkcséiaen baxeeseheoeans 7

Moody v. Albermarle Paper Co., 474 F.2d 134 (4th

Cir. 1973), cert. granted, 48 U.S.L. Week 3344 (U.S.

Sree. Bi, Bee) CIR TOD oe ce bas ckodcccccaceis 8

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

el ee NE 6b d oe hha kb 6a koe Rakes eae 8

Potts v. Flax, 313 F.2d 284, 289 (Sth Cir. 1953) ..... 7

Randall v. Cowlitz Amusements, Ine., 1974 Wash. 82,

Pe ee REE Cha ebacnGubiabsecaenene 8

Sanders v. Dobbs Houses, Ine., 481 F.2d 1097 (Sth Cir.

1970), cert. denied, 401 U.S. 948 (1971) 2.0.2.0... 8

Shelley v. Kraemer, 334 U.S. 1 (1948) .............. 7

Smith v. Hampton Training Sechocl for Nurses, 360

ee ee COE ee BOE - ink dc nec ceasscdeccsece 8

Solomon v. Pennsylvania Railroad Co., 96 F. Supp.

FS SE BE 6 4 6bcw sd Woda a Kann se cadesdnn 7

State of Minnesota v. Bergeron, 290 Minn. 351, -:

SEW < ROOEEY 656 kav ccaecnsadexancekun , 10

Sullivan v. Little Hunting Park, 396 U.S, 229 (isésy 6. 7, 9

Index Continued ili

Testa v. Batt, 390 UB. BOG (29) noc vccccccecuesss 9

Williams v. Joyee, 4 Ore. App. 482, 479 P.2d 513 (1971) 8

Young v. International Tel. & Tel. Co., 488 F.2d 757

CU Rs SEE MAE Roebdaeeeo ts rebuscexsaveeass 8

CONSTITUTIONAL PROVISIONS:

United States Constitution, Article VI, Section 2... 2,9

9

United States Constitution, Fourteenth Amendment 2, 6

STATUTES:

Civil Rights Act of 1866, 42 U.S.C. $1982 ........ 9

Equal Opportunity Act of 1972, 86 Stat. 108 (1972) 2, 10

Maryland Civil Rights Law, Art. 49B, Md. Ann.

Ce Oe OE enki sleds cvussecenecennee veces 2,5

Title VII of the Civil Rights Act of 1964, 42 U.S.

is CUNO 5s as ss rks See 2, 5

IN THE

Supreme Court of the United States

OcToBER TERM, 1974

No.

Pau. D. GuTWEIN and State of Maryland Commission

on Human Relations, Petitioners

v.

Easton PvBLisHiNe Co., Respondent

To the Court of Appeals of Maryland

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the Court of Appeals

of Maryland in this ease.

OPINIONS BELOW

The decision of the Petitioner Commission was not

reported and is reproduced in App. A, infra. The

opinion of the Cireuit Court for Talbot County, Mary-

land was not reported and is reproduced in App. B,

infra. The decision of the Court of Appeals of Mary-

land (App. C, infra) is reported at—Md.—, 325, A.2d

740, 8 EPD £9728 (1974).

Nena |

G_paweners 4

»)

JURISDICTION

The judgment of the Court of Appeals of Maryland

was entered on October 8, 1974. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Whether a state may constitutionally apply its civil

rights law enacted under a joint federal-state seheme

in a manner which denies constitutional remedies to an

acknowledged vietim of racially diseriminatory em-

ployment practices ?

STATUYORY AND CONSTITUTIONAL PROVISIONS |

The statutory provisions involved are the Maryland

Fair Employment Practices Aci, Art. 49B. Md. Code

Ann. §§$ 17 et seq. (1957, 1974 Supp.) and Title VII

of the Civil Rights Act of 1964, 42 U.S.C. 2000e (1970)

as amended by the Equal Opportunity Act of 1972, 86

Stat. 103 (1972). They are set forth in App. FE and

F, infra.

The constitutional provisions involved are the

Supremacy Clause, Article VI, Cl. 2, and the Four-

teenth Amendment, See. 1, to the United States Con-

stitution. They are set forth in App. G, infra.

STATEMENT

~The Easton Publishing Company (Easton) operates

a weekly newspaper, the Faston Star-Democrat, which

is located on the eastern shore of Maryland in the ery

of Easton in Talbot County. In the summer of 1969,

Easton employed as a reporter-editor Paul D. Gut-

,wein, a White male then single and 28 vears old. At

the time Gutwein was hired to work at the newspaper,

he was engaged to be married and had eA this

Ss ‘

.

3

fact to Easton prior to his employment. The faet that

Gutwein’s fiancee was a Blaek woman Was not known

by Easton at the time Gutwein was hived.

On Sunday, August 10, 1969, one week after Gutwein

started work at the newspaper. he became involved in

a dispute with his landlord eoneerning his Black

fianeee. Gutwein immediately related the incident to

his employer and he was assured his fiancee’s race

would not be a factor in his employment. However,

the next day Gutwein was told by Easton that he would

be diseharged because his fiancee’s race would interfere

with his effectiveness as a reporter on Maryland’s

eastern shore. Gutwein remained at the newspaper

until August 21, 1969. Afterwards he was nnemplored

for a period of eight weeks: however, he received two

weeks severanee pay. Tie also ineurred fifty dollars

in moving expenses connected with his discharge from

Easton. Gutwein later secured employment in Wash-

ington, D. C. and married his fianeee.

Meanwhile Gutwein filed a complaint on August 20,

1969 with the State of Maryland Commission on

Tuman Relations (Commission) charging Easton with

‘aeial diserimination in eenneetion with his discharge.

(App. T. infra). The ease proceeded through the stat-

utory administrative process: 24 investigation was eon-

ducted, probable cause was found to eredit Gutwein

charges, eoneiliation failed and an evidentiary public

hearing was conducted in Talbot County on Deeember

11. 1972.

After the hearing the Commission issued its decision

on Mareh & 1973. The Commission found that Gut-

wein was discharged beeause of his fianecee’s race and

therefore he was the vietim of a racially discriminatory

employment practice. Easton was ordered to pay

4

Gutwein back pay in the amount of $557.16 and $50.00

in moving expenses. (App. A, infra.)

Subsequently, Easton appealed the Commission’s

decision to the Cireuit Court for Talbot County, Mary-

land. Easton challenged both Gutweiu’s rights under

the state civil rights law and the Commission’s remedy

of awarding back pay and moving expenses. In re-

sponse, the petitioners raised constitutional issues re-

garding Maryland’s duty to adequately remedy racially

discriminatory employment practices. The cireuit

court agreed with the Commission’s finding that Gut-

wein’s discharge oeeurred because of his emplover’s

discovery that his fiancee was Black. Nevertheless,

the cireuit court reversed the Commission’s decision

holding that Gutwein possessed no eivil rights which

were violated. (App. B, infra).

Thereafter Gutwein and the Commission appealed

to the Court of Appeals of Marvland. Petitioners

again raised constitutional issues before the Court of

Appeals. (App. D, infra). On October 8, 1974,

the Court of Appeal reversed the judgment of the cir-

euit court holding that state law did indeed give Gut-

wein a civil right by which to complain against a

racially discriminatory emplovment practice and that

Easton’s eonduct offended Gutwein’s civil rights under

state law. Nevertheless, the Court of Appeals inter-

preted the remedial provisions of the state civil rights

law as not contemplating relief to deal with the effects

of diserisination. (App. C. infra.) Consequently, the

Commission order of relief for Gutwein was vaeated

and Gutwein was left in possession of a civil right but

without a remedy for the violation of that right.

A motion for reargument was denied by the Court

of Appeals of Marvland on November 6, 1974.

4)

REASONS FOR GRANTING THE WRIT

The Constitution Requires a State To Provide Remedies to

Victims of Racially Discriminatory Employment Prac-

tices Which Are Adequate and Eliminate the Effects of

Discrimination

The Maryland Fair Employment Practices (FEP)

law, Art. 49B, Md. Code Ann. §§ 17 et seq. (1974 Supp.)

was enacted in 1965 under the umbrella of Title VII of

the Civil Rights Act of 1864, 42 U.S.C. 2000e (19790),

so that Maryland could participate in the joint federal-

state civil rights enforcement contemplated by Con-

egress. Several factors ilustrate this principle.

The Maryland FEP law created new civil rights,

the opportunity to secure and maintain employment

free from racially discriminatory treatment. The

provisions of the Maryland FEP law creating these

new substantive rights are identical to those contained

in Title VII (compare, App. E-See. 19 with App. F-

See, 703), a factor acknowledged by the Court of Ap-

peals of Maryland (App. ©, infra, p. 11a). In effect,

when Maryland adopted its FEP law, it adopted fed-

eral law as its own. Maryland has continued to follow

federal law by also adopting the recent changes to Title

VII, sce, Chap. 493, Laws of Md. 1975.

Title VII itself provides a scheme for joint federal-

state participation in civil rights law enforcement, 42

U.S.C. 2000e-5 (1970). Under Title VII states may be

certified as deferral agencies to received coraplaints

filed under the federal scheme. The subsequent work

product of the state is required to be given substantial

weight. The Maryland Commission Yas operated as a

deferral agency since 1966. Of cow se state partici-

pation under Title VIT’s federal-state scheme presup-

poses that the state law accords rights and remedies to

vietims of discrimination which are in conformity with

federal law.

orn

6

Under this procedure several thousand persons have

been encouraged to seek relief directly from the Mary-

land Commission and by passing the procedure under

federal law believing that federal and state civil rights

and remedies were identical. The decision of the Court

of Appeals of Maryland leaves these persons without

any opportunity to vindicate possible abuse of their

civil rights.

The decision of the Court of Appeal of Maryland

recognizes the existence of state civil rights identical

to federal law. The decision also acknowledged that

the civil rights of Petitioner Gutwein were violated.

Inexplicably, however, Petitioner Gutwein was denied

a remedy, the Maryland eourt holding that the effects

of a racially discriminatory employment practice could

not be remedied under Maryland law. The state court

specifically ruled that back pay could not be awarded

a vietim of racial discrimination. This decision, for

reasons stated elow, uneconstitutionally sanctions a

racially discriminatory employment practice.

1. Abdication of a constitutional duty

The Marvland court's decision has avoided a duty

under the Equal Protection clause of the Fourteenth

Amendment of the U.S. Constitution to eliminate dis-

erimination when it is discovered. It is firmly estab-

lished that state civil rights agencies and state courts

are under a constitutional obligation to enforee the

same rights and provide the same remedies in the civil

rights field as are available in federal courts, Sullivan

v. Little Hunting Park, 396 U.S. 229 (1968) ; State of

Minnesota v. Bergeron, 290 Minn. 351, 187 N.W. 2d

680 (1971); Gilliam v. City of Omaha, 331 F. Supp. 4

(D. Neb. 1971), rev'd on other grounds, 459 F. 2d 63

7 *

(8th Cir. 1972) ; see also, Betts v. Easley, 161 Kan. 459,

169 P. 2d 831 (1946). Both federal and state civil

rights laws are based upon constitutional principles

and merely provide differing mechanisms to vindicate

constitutionally protected rights. In effect, a person

invoking a state civil rights law substantially equivalent

to federal law is also invoking these constitutionally

protected rights. Enforcement of these state laws

includes a duty to provide constitutional remedies.

State of Minnesota v. Bergeron, supra; see Louisiana

vy. United States, 380 U.S. 145, 154 (1965).

With respect to the instant ease, the Maryland

court’s failure to acknowledge a remedy for the dis-

eriminatory practices of the Respondent amounts to

uneonstitutional state action. Burton v. Wilmington

Parking Authority, 365 U.S. 715 (1961). This Court

stated in Burton that “no state may effectively abdi-

eate its responsibilities by either ignoring them by

merely failing to discharge them...” Id. at 725. By

not acting to provide a remedy against the Re spond-

ent’s practices, Maryland became a joint participant

in the illegal diserimination by permitting it to con-

tinue without sanetion. . Erans v. Newton, 382 U.S. 296

(1966) ; Shelley v. Kraemer, 334 U.S. 1 (1948); State

of Minnesota v. Bergeron, supra; Jenkins v. United

Gas Corp., 400 F, 2d 28, 34 (5th Cir. 1968) : see also,

Potts v. Flar, 313 F. 2d 284, 289 (Sth Cir. 1953).

The remedy of damages has long been recognized

as a constitutional requisite to vindicate those whose

civil rights have been violated. Sullivan v. Little Hunt-

ing Park, supra; McCabe vy. Atchison T & S.F.R. Co.,

935 US. 151 (1914); see also, Solomon Vv. Pennsylvania

Railroad Co., 96 F. Supp. 709 S.D.N.Y. 1951). Such

damages have also been applied under state laws.

PRD BAPE He |

Se Sa RRR PE eR

TILL e, Mapa’ te

ink

8

Williams v. Joyce, 4 Ore. App. 482, 479 P. 2d 513

(1971) ; Gray v. Serruto Builders, Ine., 110 N.J. Super.

297, 265 A. 2d 404 (1970); Randall v: Cowlitz Amuse-

ments, Inc., 194 Wash. 82, 76 P. 2d 1017 (1938) ; Bibb

v. Alton, 209 Ill. 461, 70 N.E. 640 (1904).

Back pay as a remedy for employment diserimina-

tion is a specifie application of these general principles.

Indeed, back vay has been held a constitutional remedy

as well as a remedy necessarily implied from statutes

creating civil rights. See, Young v. International Tel.

& Tel. Co., 438 F. 2d 757 (3rd Cir. 1971) ; Sanders v.

Dobhs Houses, Ine., 431 F. 2d 1097 (Sth Cir. 1976),

cert. denied 401 U.S. 948 (1971); Smith v. Hampton

Training School for Nurses, 360 F. 2d 577 (4th Cir.

1966) ; Harkless v. Sweeny Independent School Dist.,

427 F. 2d 319 (Sth Cir. 1970), cert. denied, 400 U.S. 991

(1971). Under Title VII, back pay has toeeme a

mandatory remedy to effectuate the elimination of

discriminatory employment practice. Moody v. Alber-

marle Paper Co., 474 F. 2d 134 (4th Cir. 1973), cert.

granted, 43 U.S.L. Week 3344 (U.S. Dee. 17, 1974)

(No. 74-389); Pettway v. American Cast Tron Pipe

Company, 494 F. 2d 211 (Sth Cir. 1974). p

After finding discriminatory employment practice

which operated against Petitioner Gutwein, the Com-

mission proceeded to fashion relief to eliminate the

effects of such practice. (App. A, infra, pp. 3a).

This specific relief was necessary to vindieate Gut-

* 9 . . : x

wein’s rights since any future employment with Easton

would be unlikely.

Had Gutwein not been encouraged by Maryland law

to seek vindication of his civil rights through state law,

he quite likely would have obtained adequate relief

directly under federal law. The Maryland court’s in-

9

terpretation of its state civil rights law as providing

only rights identical to federal law but not remedies,

clearly denies to Gutwein ana all those persons sim-

jlarly situated equal protection under the law. The

Maryland court’s action denies to Gutwein necessary

constitutional relief to which he and the public are

entitled. Failure to grant this constitutional relief

renders the Maryland FEP law a sham and amounts

to unconstitutional sanction of discriminatory prac-

tices.

2. Supreme law of the land

State courts cannot directly refuse to enforce a fed-

eral law and should not be allowed to do so indirectly.

In Testa v. Katt, 330 U.S. 386 (1974), this Court ruled

that a state court’s refusal to apply federal standards

was in violation of Article VI, Section 2, of the U.S.

Constitution which binds state judges to the “*supreme

law of the land.”’

This Court has already had oceasion to review the

attempt of a state court to evade the enforcement of a

federal civil rights law. Sullivan v. Little Hunting

Park, supra. The Virginia Supreme Court of Appeals

used a discretionary state procedural rule to block an

appeal in a housing discrimination ease based on § 1982,

Civil Rights Act of 1866. In applying the supremacy

doctrine this Court overruled the state judges’ decision

that no jurisdiction existed and further ruled that the

measure of damages must be in accord with federal

law.

Gutwein, like Sullivan, invoked a eivil rights statute.

Ilowever, Gutwein relied on the state fair employ-

ment law as being equivalent to the federal law pro-

tecting him from discriminatory employment practices.

The Maryland Court of Appeals, as had the Virginia

DR ree ts

10

court in Sullivan, exercised its diseretion and found

the state law lacking sufficient specificity to allow

money awards by the enforcement agency. This deci-

sion, in effect, means that the state legislature intended

to lay a trap for unwary Maryland citizens who would

forego pursuing their federal rights because they were

encouraged to utilize a state ageney. While the Mary-

land law is not a carbon copy of the federal law (being

much less detailed in all sections) the background of

how and when it was passed indieates that the state

legislature made the choice to participate in a joint

federal-state enforcement scheme. As a result, the

Maryland court should not be allowed to emasculate

the substantive rights proteeted by denying any mean-

ingful remedy. State of Minnesota y. Bergeron, supra;

Gilliam vy. City of Omaha, supra.

When Title VII was enacted, a cornerstone of the

Act ineluded a provision for local enforcement by state

civil rights agencies, Congress believing this approach

to be the most effective meaus of eliminating diserim-

ination. This proceedure is effeetuated by means of

statutory deferral provisions which were reviewed by

the U.S. Supreme Court on two oceasions. Love v.

Pullman, 404 U.S. 522 Segall Crosslin v. Mountain

States Tel. & Tel. Co., 400 U.S. 1004 (1971). Under

Crosslin, a state interest under Title VIT cannot be

ignored. That Congress intended that state agencies

are to be an integral part of Title VIT enforcement is

further buttressed by the Equal Opportunity Act of

1972, which requires that the result of enforeement

under state laws is to be given substantial weight by

federal government. See, Section 706(b) of Title VII,

as amended March 24, 1972, P.L. 92-226, See. 4.

11

While the state agencies involved in the Love and

Crosslin eases were expressly limited toe conciliation,

the Maryland administrative ageney was clearly de-

signed as an enforcement agency, However, cease and

desist powers without the accompanying affirmative

powers, including eompensatory relief, are meaningless,

and water down effective enforcement of federal law.

The Maryland court has abused its diseretion in inter-

preting the state statute as not providing enforeement

powers thus inferring that the legislature meant to

ereate a right but no remedy. This abuse of diseretion

under the facts of the instant case constitutes a disre-

gard of the supremacy clause.

CONCLUSION

For the foregoing reasons the petition for a writ of

certiorari to the Court of Appeais of Maryland should

be granted.

Respectfully submitted,

Puiu J. TIeRNEY

General Counsel

E1izaBeru H. TocKMAN

Assistant General Counsel

State of Mary fand Commission

on Human Relations

701 St. Paul Street

Baltimore, Maryland 21202

Attorneys for Petitioners

JacosB J. EDELMAN

Chairman, State of Maryland

Commission on Human Relations

10 Light Street

Baltimore, Maryland 21202

January 6, 1975