Opposition Brief — Wright v. MetroHealth Medical Center

No. 95-848 n 20

In The

Supreme Court of the United States

>

October Term, 1995

MARTHA SABOL WRIGHT and JOHN C. WRIGHT, JR..,

Petitioners,

VS.

METROHEALTH MEDICAL CENTER, PETROLEUM

HELICOPTERS, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

METROHEALTH MEDICAL CENTER, WILLIAM

FALLON, BETTY KOVACH AND

CHARLENE MANCUSO

ROBERT M. WOLFF

Counsel of Record

DUVIN, CAHN & HUTTON

Attorneys for Respondents

MetroHealth Medical Center,

William Fallon, Betty Kovach

and Charlene Mancuso

1301 East 9th Street, 20th Floor

Cleveland, Ohio 44114

(216) 696-7600

8210

(800) 3 APPEAL + (C00) 5 APPEAL + (800) BRIEF 21

ervices, inc.

i

QUESTIONS PRESENTED

i. Whether every federal court to address the issue has

properly determined that narrowly drawn anti-nepotism policies

survive equal protection challenges under the authority of this

Court’s holdings in Zablocki v. Redhail, 434 U.S. 374 (1 978) and

Califano v. Jobst, 434 U.S. 47 (1977)?

2. Whether a petitioner properly invokes the jurisdiction of

this honorable Court to challenge the termination from

employment of a helicopter pilot for failing to respond to an

emergency medical call where absolutely no record evidence

supports the claim that this termination was connected in any way

to enforcement of a nepotism policy, where the parties have had

no ability to develop any record on this issue, where a state court

action challenging the termination is pending and where the

United States Court of Appeal for the Sixth Circuit is yet to rule

on the appeal of the federal action challenging this termination?

3. Whether petitioners can properly challenge an anti-

nepotism policy on First Amendment grounds where such

challenge was at no time raised before the trial court?

LIST OF PARTIES

The Petitioners are Martha Sabol Wright and John C.

Wright, Jr.

The Respondents are MetroHealth Medical Center, a

county-owned hospital in Cleveland, Ohio, and three (3)

individuals employed by MetroHealth Medical Center, William

Fallon, Betty Kovach and Charlene Mancuso. Other

Respondents include Petroleum Helicopters, Inc., a private

corporation, and Wayne Thompson, an individual employed by

Petroleum Helicopters, Inc.

Respondents Fallon, Kovach and Mancuso were not parties

to the original action that resulted in the decision of the U.S.

Court of Appeals for the Sixth Circuit, which has been appealed

herein (See Wright v. MetroHealth Medical Center, 58 F.3d 1130

(6th Cir. 1995).) They have been named as parties to a second

action which remains pending in the Sixth Circuit and has been

assigned Case No. 95-4260. Accordingly, Respondents

respectfully suggest that Dr. Fallon, Ms. Mancuso and Ms.

Kovach are not properly named as potential Respondents in this

appeal.

iii

TABLE OF CONTENTS

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sia ecd Saeibedes $b beccessecccesueee

cee h ah esenteteesdsvecsoeveces

Serb eeedees ee nsespeccesveeseeee

Constitutional Provisions Involved ................

Counter-Statement ofthe Case ..........cccceeeees

Summary ofthe Argument ............. ipuauuneees

Reasons for Denying the Writ ...............0e000:

I. The Sixth Circuit opinion is entirely consistent

with prior opinions of this Court. ............

II. The Sixth Circuit’s decision and analysis is

consistent with that of every federal Circuit to

have addressed the issue. ................+-:

III. This case clearly does not present an important

constitutional issue which should be resolved by

’ Ce Ce euy se seal vebanvaceetesws

er ee ee eeeee ts

12

14

16

iv

Contents

Page

J TABLE OF CITATIONS

Cases Cited:

Adler v. Board of Education, 342 U.S. 485 (1952) ..... 11

Bowen v. Gilliard, 483 U.S. 587 (1987) ............. 9,10

Bretz v. City of Centerline, 276 N.W. 2d 617 (Mich. Ct.

EEE PET OPP eee PEE OEE Pe RPE 14

Califano v. Jobst, 434 U.S. 47 (1977) ... i, 4,5, 6,7, 12, 14, 15

Church of Lukumi v. Hialeah, 508 U.S. __, 124 L. Ed. 2d

GU bweccukesdvsanteseeeueewes thindbarseeceens 10

Cutts v. Fowler, 692 F.2d 138 (D.C. Cir. 1982) ....... 12

Cybyske v. Independent School District No. 196, 347

N.W. 2d 256 (Minn.), cert. denied, 469 U.S. 933

CUE Senssubvgudneciaasseunesesede cant eees 14

Elrod v. Burns, 427 U.S. 347 (1976) ...........0205- 11

Espinoza v. Toma, 580 F.2d 346 (8th Cir. 1978) ....... 12

Hamilton v. Board of Trustees of Oconee County, 319

Dele AE FEE Cie BOOED cvccecccsccteucerss 14

Keynishian v. Board of Regents, 385 U.S. 589 (1967) .. 11

Vv

Contents

Page

Littlejohn v. Rose, 768 F.2d 765 (6th Cir. 1985), cert.

denied, 475 U.S. 1045 (19BG) 0 cccccccccvcccces 13

Morfin v. Albuquerque Public Schools, 906 F.2d 1434

CRG CUED wh cevdvedcdéhacesscataneesiras 12

Mt. Healthy v. Doyle, 429 U.S. 274 (1977) ........... 11

Parks v. City of Warner Robins, 43 F.3d 609 (11th Cir.

SOD ccccvccevedeudicesdseres Fatduseeerereis 12

Parsons v. County of Del Norte, 728 F.2d 1234 (9th Cir.),

cert. denied, 469 U.S. 846 (1984) ............00405- 12

Perry v. Sindermann, 408 U.S. 593 (1972) ........... 11

Pickering v. Board of Education, 391 U.S. 563 (1968) . 11

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)

vebeedccadedeeeesesaeanansskvieuneveuarenens 11

Sioux City Police Officers’ Association v. City of Sioux

City, 495 N.W. 2d 687 (Iowa 1993) ............... 13

Torcaso v. Watkins, 367 U.S. 488 (1961) ............ 11

Voichahoske v. City of Grand Island, 231 N.W. 2d 124

(SETSD dcvccnccccbévnssensavedeaenbendeureaees 14

Waters v. Gaston County, 57 F.3d 422 (4th Cir. 1995) .. 12

vi

Contents

Page

Winrick v. City of Warren, 299 N.W. 2d 27, 99 Mich.

RGD. TROUT SED 00600csscsbucticscasevasseten 14

Wright v. MetroHealth Medical Center, 58 F.3d 1130

GDR COED ovewcddesevicecesenereretaa ii, 1,4,6, 11

Yahas v. Libbey-Owens Ford Co., 562 F.2d 496 (7th Cir.

SVEUD Scvecvenndiaciheudeesdusenesnneeasl 1]

Zablocki v. Redhail, 434 U.S. 374 (1978) ............

iopdedeaveaseuussceal i, 4,5,6,7,8,9, 10, 12, 13, 14, 15

Zavala v. City and County of Denver, 759 P.2d 664

GEee, GOOEE vecvernvucecdsvucdsobeunuuoneuues 13

Statutes Cited:

Ohio Revised Code § 124.11 ............ccccceeees 3

Ohio Revised Code § 339.06 .................0005. 3

United States Constitution Cited:

Pe RS a. vdécenccecéesetusdedsevar i,1,2,11,14

FourteenthAmendment ................00eeeeeees l

l

CONSTITUTIONAL PROVISIONS INVOLVED

Respondents agree with Petitioners statement that the Equal

Protection clause of the Fourteenth Amendment is the

constitutional provision involved in this matter. However,

Respondents object to Petitioners’ inclusion of the First

Amendment as a constitutional provision involved in this matter.

Petitioners never raised a First Amendment challenge to the anti-

nepotism policy before the lower court. The issue was raised, for

the first time, on appeal. Accordingly, the Sixth Circuit did not

opine on the First Amendment argument, stating that “Plaintiffs

failed to raise this issue before the District Court and thus have

not preserved the issue for appeal.” (See Appendix 1, Petitioners’

Writ at p. 16a atn. 3).

COUNTER-STATEMENT OF THE CASE

Respondents, MetroHealth Medical Center, William

Fallon, Betty Kovach and Charlene Mancuso (hereinafter

collectively referred to as “Respondents MetroHealth” or

“Respondents”) rely on the Statement of Facts as set forth in

decision of the Sixth Circuit in Wright v. MetroHealth Medical

Center, 58 F.3d 1130 (6th Cir. 1995). (See Appendix 2,

Petitioner’s Writ, pp. 11a- 32a).

However, Respondents vigorously object to references of

Petitioner John Wright's dismissal. Petitioners apparently

premise their appeal upon the unsupported proposition that John

Wright was discharged from employment pursuant to

Respondents’ nepotism policy. This assertion is not part of the

record before this Court, and is blatantly untrue. During the

pendency of the initial Sixth Circuit appeal, and before the Sixth

Circuit issued the opinion upholding the propriety of the

nepotism policy at issue, Petitioner John Wright was discharged

by Respondent PHI, for failing and refusing to respond to an

2

emergency medical call in his helicopter. Although Petitioners’

case is certainly more dramatic if they can allege that Mr. Wright

was discharged because of his marriage to Martha Wright, this

fact is blatantly untrue and nowhere developed in the record

before this Court. The actual facts of record are as follows.

Respondent MetroHealth Medical Center has an anti-

nepotism policy which, in pertinent part, precludes married

couples from working “in close proximity”. Itis hard to imagine

a working situation involving closer proximity than an

emergency nurse and helicopter pilot working together in an

emergency life flight situation. Accordingly, when MetroHealth

learned of the pending marriage, Martha Wright, an at-will

employee of the Hospital, was offered a transfer to any other

Hospital nursing position, of her choosing. She refused, and

accordingly, her husband was informed that his employer (PHI)

would transfer him from his assignment at MetroHealth in order

to comply with the nepotism policy.

In January of 1993, the Wrights brought suit challenging the

constitutionality of the nepotism policy. The Complaint

challenged the policy on equal protection grounds. A violation of

First Amendment was never pleaded in the Complaint nor argued

at any time during the pendency of the action in the District Court.

In addition, Petitioners never moved to amend their Complaint

during the lengthy period the action was pending in Federal

District Court to add a claim of a violation of the First

Amendment.

During the pendency of this lawsuit, the parties agreed not to

transfer John or Martha Wright, but rather to arrange their

schedules so that they would never be working at the same place

at the same time. However, also during the pendency of this

action in the District Court, MetroHealth officially informed the

Petitioners (through counsel) that it remained MetroHealth’s

Me Oe eS

3

intention to allow Martha to transfer to an entirely equivalent

nursing position of her choosing at MetroHealth Medical Center

to avoid problems under the nepotism policy.'

On April 24, 1994, the District Court granted summary

judgment in MetroHealth and PHI’s favor. Petitioners timely

appealed from the District Court’s ruling and further obtained a

stay pending appeal. Respondents honored the stay and did not

transfer Martha Wright. However, prior to the Sixth Circuit’s

July 13, 1995 affirmance of summary judgment, Respondent PHI

terminated John Wright’s employment for reasons entirely

unrelated to the nepotism policy or any litigation challenging that

policy. John Wright was terminated from employment by his

employer, PHI, on April 6, 1995, for failing to respond to a “go-

page” in order to attend to acritically injured patient.

Shortly after his termination, Wright brought suit against

the instant Respondents, alleging various state law causes of

action, including defamation, tortious interference with business

relationship and violation of state public policy. In their

Complaint, Respondents specifically state that they are “not

challenging the nepotism policy . . . these were the basis of a

prior suit”. (Verified Complaint, Cuyahoga County Common

Pleas Case No. 292123, Para. 15, n. 2). Respondents have

answered this Complaint and vigorously deny its assertions. The

parties are in the midst of discovery. Nowhere in that pending

state court lawsuit do Petitioners suggest that Wright was fired on

account of the nepotism policy.

On November 14, 1995, Petitioners filed another

Complaint, in District Court, naming the same parties as

1. Ms. Wright, pursuant to the Ohio Revised Code, is an unclassified

civil servant employed at the will of the hospital. (See Ohio Revised Code

$§ 339.06 and 124.11).

4

defendants. In this Complaint, Petitioners allege that Mr.

Wright’s termination was an attemptto“covertlyimplementthe .

nepotism policy despite the stay [entered by the Sixth Circuit]”.

(Complaint in U.S. District Court Case No. 95CV2414 at{ 18).

Attached to the Complaint was a “Suggestion of Dismissal”

stating that the sufficiency of the Complaint in that action was

controlled by the Sixth Circuit decision in Wright v. MetroHealth,

58 F.3d 1130 (6th Cir. 1995). The District Court entered the Order

of Dismissal before Respondents had the opportunity to file an

answer. The appeal from this entry of dismissal is now pending

before the Sixth Circuit Court of Appeals.

Itis based upon this second federal Complaint, dismissed

upon plaintiffs’ suggestion, that Petitioners represent to the

Supreme Court of the United States that John Wright was fired

under a nepotism policy. There is absolutely no other factual or

record basis to support this demonstrably false assertion.

SUMMARY OFTHE ARGUMENT

Certiorari is not warranted in this matter. The Sixth Circuit's

decision is in harmony with this Court’s decisions in Zablocki v.

Redhail, 434 U.S. 374 (1978) and Califano v. Jobst, 434 U.S. 47

(1977). Furthermore, every federal court to rule on the

constitutionality of nepotism policies has determined that, unlike

the direct impediment to marriage involved in Zablocki, supra,

reasonably drawn anti-nepotism policies place no direct legal

obstacle in the path of persons desiring to get married and are

therefore lawful under the analysis of Jobst.

Petitioners’ attempts to mischaracterize the holdings of

other federal decisions aside, the Fourth, Sixth, Seventh, Eighth,

Ninth, Eleventh, and D.C. Circuits have all, applying the rational

basis test, affirmed the validity of nepotism policies against equal

protection challenges. In addition, each Circuit, and indeed each

3

federal court to address the issue, has adopted the reasoning of

this Court set forth in the Zablocki and Jobst decisions. There is

no conflict. There is no confusion. Accordingly, the petition

should be denied.

REASONS FOR DENYING THE WRIT

I.

THE SIXTH CIRCUIT OPINION IS ENTIRELY

CONSISTENT WITH PRIOR OPINIONS OF THIS

COURT.

The relevant provisions of the nepotism policy at issue are

quoted in the Court of Appeal’s opinion at pages 13a - 14a. The

policy provides that:

In order to prevent conflicts which

may arise in situations where

members of the same immediate

family are employed by the Hospital,

the Hospital will not allow an

individual to be employed, transferred

or promoted, where as a result any of

the following would exist:

3. Members of the same

immediate family being in

positions which are of such close

proximity that they would

necessarily interact with each

other in the performance of their

duties....

C. If, as aresult of a marriage between two

employves, a violation of the nepotism

guidelines arises, the affected employees will

be given the option of electing which spouse

will be moved to another position in the

Hospital System... .

It is uncontroverted that at all relevant times, Petitioner Martha

Wright was given the option of transferring to any other

equivalent position in the Hospital.

Citing this Court’s opinions in Zablocki v. Redhail, 434 U.S.

374 (1978) and Califano v. Jobst, 434 U.S. 47 (1977), the

appellate court properly determined that this policy does not

violate the fundamental right to marry and is thus not subject toa

strict scrutiny review. The Sixth Circuit properly noted that “not

every state action which relates in any way to the incidents or the

prerequisites for marriage must be subject to rigorous scrutiny.

To the contrary, reasonable regulations that do not significantly

interfere with decisions to enter into the marital relationship may

be imposed.” 58 F.3d at 1134-35, citing Zablocki, supra, 434 U.S.

at 386. The Sixth Circuit properly determined that, as the policy

at issue is not a direct and substantial interference with the right to

marry, the “rational basis” test is properly applied.

In Califano v. Jobst, supra, this Court upheld sections of the

Social Security Act providing for termination of a dependent

child’s benefits upon marriage to an individual not entitled to

benefits under the Act. As the opinion in Califano expressly

noted, “the rule terminating benefits upon marriage was not an

attempt to interfere with the individual’s freedom to make a

decision as important as marriage. . . there was no evidence that

the law significantly discouraged, let alone made practically

7

impossible” any marriages. Zablocii v. Redhail, 434 U.S. at 387,

n. 12, citing Califano v. Jobst, 434 U.S. at 47-48.

In sharp contrast, the governmental action at issue in

Zablocki v. Redhail was a Wisconsin statute which provided that

members of a certain class of Wisconsin residents could not

marry within the state or elsewhere without first obtaining acourt

order granting permission. 434 U.S. at 375. Thus, this Court

found that the plaintiff class in Zablocki , individuals with support

obligations for non-custodial children, were subjected to a

statute which “significantly interfere[d] with the exercise of [the

right to marry]” and thus a heightened scrutiny was appropriate.

434 U.S. at383. This Court explained that:

(B]y reaffirming the fundamental character

of the right to marry, we do not mean to

suggest that every state regulation which

relates in any way the incidence of or

prerequisites for marriage must be subjected

to rigorous scrutiny. To the contrary,

reasonable regulations that do not

significantly interfere with decisions to enter

into the marital relationship may legitimately

be imposed, See, Califano vy. Jobst, ante, p.

47, n. 12, infra, ... The Statutory

classification at issue here, however, clear] y

does interfere directly and substantial] y with

the right to marry.

Under the challenged statute, no Wisconsin

resident in the affected class may marry in

Wisconsin or elsewhere without a court order

and marriages contracted in violation of the

Statute are both void and punishable as

8

criminal offenses.... These persons are

absolutely prevented from getting married.

434 U.S. at 386-87.

Justices Berger, Stewart, Poweli, and Stevens each wrote

concurring opinions in Zablocki, and each Justice was careful to

note the limited scope of the holding invalidating the Wisconsin

statute. For example, Chief Justice Berger, concurring, stated

that the majority holding in Zablocki is not:

in any significant way inconsistent with (he

Court’s unanimous holding in Califan

Jobst ... Unlike the intentiona’ anc

substantial interference with the mgh

marry effected by the Wisconsin statute «

issue here, the Social Security Act provisions

challenged in Jobst did not constitute an

attempt to interfere with the individual's

freedom to make a decision as important as

marriage ... and, at most, had an indirect

impact on that cscis‘un.

434U.S. at391.

Likewise, Justice Stewart, pointed out that “a state may not

only significantly interfere with decisions to enter into the

marital relationship, but may in many circumstances absolutely

prohibit it”. 434 U.S. at 392. Justice Stewart cited, as examples,

rules against minors marrying, restrictions upon health screening

prior to marriage, etc. Id.

Justice Powell, in his concurrence, stated that “the

majority’s rationale sweeps too broadly in an area which

traditionally has been subject to pervasive state regulations.” 434

U.S. at 396. Additionally Justice Stevens concurring, reiterated

that a state may

9

have valid reasons for treating married

and s«nmarried persons differently.

Classifications based on marital status have

been an accepted characteristic of tax

legislations, selective service rules and social

security regulations. As cases like Jobst

demonstrate, such laws may significantly

interfere with decisions to enter into the

marital relationship ... that kind of

interference, however, is not a sufficient

reason for invalidating every law reflecting a

legislative judgment that there are relevant

differences between married persons as a

class and unmarried persons as aclass.

A classification based on marital status is

fundamentally different froma classification

which determines who may lawfully enter

into the marriage relationship.

434 U.S. at 403-04.?

Subsequent decisions of this Court further confirm the

lawfulness of governmental distinctions based upon marriage

which do not directly and substantially interfere with the marital

relationship. For example, in Bowen v. Gilliard, 483 U.S. 587

(1987), this Court considered a challenge to an amendment

authorizing federal aid to families with dependent children

(AFDC) that required that a family’s eligibility for benefits take

into account the income of all parents, brothers and sisters living

in the same home. The question for review in Bowen was whether

that requirement violated the Equal Protection Clause when

applied to a family wishing to receive benefits to include within

2. Justice Renquist dissented entirely from the majority opinion, stating

that he would have affirmed the validity of the Wisconsin statute.

10

its unit achild for whom support payments were being made by a

non-custodial parent. 483 U.S. at 589-90.

Justice Stevens, writing for the Court, rejected the claim that

“some form of heightened scrutiny is appropriate because the

amendment interferes with the family’s fundamental right to live

in the type of family unit it chooses”. 483 U.S. at601. This Court

determined that “close relatives are not a suspect or quasi suspect

class. As a historical matter they have not been subjected to

discrimination; they do not exhibit obvious, immutable or

distinguishing characteristics that define them as a discrete

group, and they are not a minority or politically powerless”. 483

U.S. at 602. This Court further stated that the statutory

classification at issue in Bowen did not “directly and

substantially interfere with family living arrangements and

thereby burden a fundamental right”. 483 U.S. at 603, citing

Zablocki, supra, 434 at 386-87. See also Lyng v. Castillo, 477

U.S. 635 (1986) (“Close relatives are not a suspect or quasi

suspect class” and statutory definition treating parents, children

and siblings who live together as a single household for food

stamp eligibility, but not more distant relatives does not “directly

and substantially interfere with family living arrangements.”)

See also Church of Lukumi v. Hialeah, 508 U.S. __,124L.Ed.2d

472, 520 (Justice Blackman, concurring in judgment,

characterizing Zablocki v. Redhail as “invalidating certain

restrictions on marriage as grossly under inclusive with respect

to their purpose”).

Thus, the clear authority of this Court supports the review of

MetroHealth’s nepotism policy under a rational basis test and,

the Sixth Circuit correctly determined that a rational basis does

exist to support this policy, as has every other Circuit to review

the lawfulness of such policies.’

3. The Sixth Circuit found a rational basis supporting the nepotism

policy to avoid potential conflicts that might arise when two re

ont’

1]

The cases of this Court relied upon by Petitioners — in

marked contrast to the instant matter — all involve employees or

citizens penalized for exercising First Amendment right. See,

Adler v. Board of Education, 342 U.S. 485 (1952) (individual

belonging to certain unpopular organizations disqualified from

employment); Elrod v. Burns, 427 U.S. 347 (1976) (political

patronage dismissals violated the First Amendment); Keynishian

v. Board of Regents, 385 U.S. 589 (1967) (statutes authorizing

removal of college faculty members for insidious utterances are

unconstitutionally vague); Mt. Healthy v. Doyle, 429 U.S. 274

(1977) (case discussing non-renewal of untenured teacher

contract for alleged protected First Amendment activity); Perry

v. Sindermann, 408 U.S. 593 (1972) (non-renewal of teacher

contract for public criticism of college violated the First

Amendment); Pickering v. Board of Education, 391 U.S. 563

(1968) (dismissal for letter to the editor critical of school violated

the First Amendment); Rutan v. Republican Party of Illinois, 497

U.S. 62 (1990) (political affiliation requirement for filling any

vacancy held violative of First Amendment); Torcaso v. Watkins,

367 U.S. 488 (1961) (denial of notary commission absent

declaration of belief in God violative of First Amendment).

Simply stated, these cases are irrelevant to any issue raised or that

could potentially be raised before this Court on appeal.

(Cont'd)

persons allow their personal lives to impinge on their professional lives and to

prevent morale among other workers from deteriorating due to the unique

relationship between the married co-workers. 58 F.3d at 1136. The Seventh

Circuit, in Yuhas v. Libbey-Owens Ford Co., 562 F.2d 496 (7th Cir. 1977) found

additional justifications for such policies, including the fact that a marital

relationship “often generates intense emotions which would interfere with the

worker's job performance. . . [and], ifan employee who works with his or her

spouse became involved in a grievance with the employer or another worker,

the two spouses may be expected to take the same side in the dispute. . . . These

reasons are far from frivolous. They correspond to the reasons which have led

a number of institutions to conclude that family members should not work in

the same environment.” 562 F.2d at 499.

12

Il.

THE SIXTH CIRCUIT’S DECISION AND ANALYSIS

IS CONSISTENT WITH THAT OF EVERY FEDERAL

CIRCUIT TO HAVEADDRESSED THE ISSUE.

Every Circuit to address the legality of anti-nepotism

policies has applied a rational basis test and upheld the policy at

issue. In addition, every federal appellate decision rendered after

1978 has utilized the Zablocki/Jobst analysis. See Waters v.

Gaston County, 57 F.3d 422, 426 (4th Cir. 1995) (upholding

nepotism policy under Zablocki analysis and holding that policy

does not “interfere directly and substantially with the

fundamental right to marriage”); Parsons v. County of Del Norte,

728 F.2d 1234 (9th Cir.), cert. denied, 469 U.S. 846 (1984)

(upholding Sheriff Department no spouse within department rule

under Zablocki analysis); Parks v. City of Warner Robins, 43 F.3d

609, 614 (11th Cir. 1995) (upholding city anti-nepotism policy

under Zablocki as it did “not directly and substantially interfere

with right to marry”); Cutts v. Fowler, 692 F.2d 138, 141 (D.C.

Cir. 1982) (holding that the burden on the right to marry caused

by anti-nepotism rule is “attenuated and indirect”).

Petitioners are wrong in stating that the Eighth Circuit, in

Espinoza v. Toma, 580 F.2d 346 (8th Cir. 1978) and the Tenth

Circuit in Morfin v. Albuquerque Public Schools, 906 F.2d 1434

(10th Cir. 1990) use a heightened standard in addressing equal

protection challenges to anti-nepotism rules. Although the

Eighth Circuit in Espinoza discussed an intermediate scrutiny

test in reviewing gender-based challenges under the Equal

Protection Clause, in addressing the constitutionality of the no

spouse employment policy at issue in that case, the court

expressly adopted a rational basis test:

We must, therefore, consider the purpose of

13

[the public employer’s] policy and whether

the classification utilized to carry out the

policy is reasonable, not arbitrary, and has a

rational relationship to the policies sought to

be advanced by its operation.

Id. at 348, citing Keckeisen v. Independence School District, 612,

509 F.2d 1062 (8th Cir.), cert. denied, 423 U.S. 833 (1975).4

Likewise, the Petitioners misstate the law in contending that

the Tenth Circuit has adopted a reasonableness standard in

assessing equal protection challenges to nepotism rules. In

Morfin v. Albuquerque Public Schools, supra, no anti-nepotism

policy was involved. Plaintiff brought a First Amendment

freedom of association claim alleging that her contract was not

renewed because of her association with her husband. 906 F.2d at

1436. Morfin, like the Sixth Circuit opinion in Littlejohn v. Rose,

768 F.2d 765 (6th Cir. 1985), cert. denied, 475 U.S. 1045 (1986)

are classic freedom of association cases involving punitive

action against employees based upon bias and ill will directed

toward their spouses. Neither of these cases involve nepotism

policies in any way, shape or form. Neither of these cases

implicate the analysis set forth by this Court in Zablocki and

neither of these cases are relevant to the instant appeal.

The other cases alleged by Petitioners to evidence

inconsistency in the proper analysis for reviewing nepotism

policies are grossly misrepresented in Petitioners’ Brief. Zavala

v. City and County of Denver, 759 P.2d 664 (Colo. 1988) simply

did not involve review of a nepotism policy. In Sioux City Police

Officers’Association v. City of Sioux City, 495 N.W. 2d 687 (Iowa

1993), the state court did use a rational basis test to uphold a

4. InKeckeisen, supra, the Eighth Circuit upheld a no spouse rule in the

context of school administrators and teachers.

14

nepotism policy. Likewise, in Winrick v. City of Warren, 299

N.W. 2d 27, 99 Mich. App. 770 (1980), the state court upheld a

nepotism policy which included a blanket prohibition of working

in the same department.

Bretz v. City of Centerline, 276N.W.2d617 (Mich. Ct. App.

1979) was a First Amendment overbreadth analysis, irrelevant to

the instant appeal. Cybyske v. Independent School District No.

196,347 N.W.2d256(Minn.), cert. denied, 469 U.S. 933 (1984)

was a First Amendment analysis which did not involve a

nepotism policy. Finally, in Hamilton v. Board of Trustees of

Oconee County, 319S.E.2d717(S.C. App. 1984), the state court

upheld a nepotism policy on the basis of this Court’s analysis in

Zablocki.

Indeed, the only decision which struck down an anti-

nepotism policy was a pre-Zablocki and Jobst opinion of the

Nebraska Supreme Court, Voichahoske v. City of Grand Island,

231 N.W. 2d 124 (1975). A single decision of the Nebraska

Supreme Court, standing alone, hardly provides the basis for the

exercise of Supreme Court jurisdiction, especially given the

unanimity among all courts in upholding policies such as the

instant one and in the analysis employed to reach that end.

Il.

THIS CASE CLEARLY DOES NOT PRESENT AN

IMPORTANT CONSTITUTIONAL ISSUE WHICH

SHOULD BE RESOLVED BY THIS COURT.

The only parties professing any confusion regarding the

proper analysis of nepotism policies like the one herein at issue

are the Petitioners. This Court in Califano v. Jobst and Zablocki v.

Redhail clearly established the proper analysis for equal

protection review of governmental distinctions based upon

LL

15

marital status. The Fourth, Sixth, Seventh, Eighth, Ninth,

Eleventh, and D.C. Circuits, and indeed every federal court to

review such policies have applied the Zablocki and Jobst analysis

and have found that such policies are to be reviewed under the

rational basis test. Clarification is simply not necessary or

needed from this Court. In addition, this is a case uniquely

unsuited for High Court review. Petitioners attempt to

characterize this as an action where an employee was terminated

under a nepotism policy. However, this is clearly not the case

before this Court. Indeed, the federal appeal on the termination

(such as it is) is still pending in the Sixth Circuit. A parallel state

action, challenging Mr. Wright’s employment termination, is

currently pending. Under these facts, it would be uniquely

inappropriate for this Court to assert jurisdiction, particularly

where there is such unanimity as to the proper analysis and result

of cases challenging nepotism policies.

16

CONCLUSION

The decision of the Sixth Circuit below involved well-

settled principles of law that are not in conflict with, nor does it

represent a departure from, the usual course of judicial

proceedings. Accordingly, Respondents MetroHealth Medical

Center, William Fallon, Betty Kovach and Charlene Mancuso,

request that the Petition be denied.

Respectfully submitted,

ROBERT M. WOLFF

Counsel of Record

DUVIN, CAHN & HUTTON

1301 East 9th Street

20th Floor

Cleveland, Ohio 44114

(216) 696-7600

Attorney forRespondents

MetroHealth Medical Center,

William Fallon, Betty Kovach

and Charlene Mancuso