Opposition Brief — Flynn v. Kornwolf

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No. 96-254 SEP 10

In The

Supreme Court of the United States sais

October Term, 1995,

JOAN FLYNN, ROBERT BERTERMANN, EVA

CHRISTOPHERSON, SALLY GUZEK, PAUL

ROSENQUIST, JAY WILDFONG, ED BOWMAN,

SHIRLEY DANDENEAU, BONNIE FULLER, HELEN

HESS, JOHN GRECO and JOSEPH PORCARO,

Petitioners,

Vv.

DENNIS KORNWOLF and STEPHEN SIMANEK,

in their individual capacities, and RACINE COUNTY,

a municipal corporation,

Respondents.

EE o a

On Writ Of Certiorari To The United States Court of Appeals

For The Seventh Circuit

BRIEF OF RESPONDENT, STEPHEN SIMANEK, IN

OPPOSITION TO GRANTING OF PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

—o-

JAMES E. DOYLE

Attorney General

JAMES H. MCDERMOTT

Assistant Attorney General

State Bar No. 1003468

Attorneys for Judge Simanek

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-3859

QUESTION PRESENTED FOR REVIEW

The petitioners discern two questions presented for

review. Judge Simanek discerns but one such question,

and submits that it is this: If the Seventh Circuit erred in

applying certain Federal case law in ruling that the court

order here involved created no property interest of the

petitioners triggering due process protections, does such

error warrant remand of this case to the Seventh Circuit

for a re-consideration of such ruling?

re 8

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .......... i

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SUMMARY OF AMUGUIMEMIVE 3c 0 ass chara ns eanees 3

ARLFUREIOIN 66.6% 6-00 6 eee hee 608 5

THE REASONS PRESENTED BY

PETITIONERS FOR GRANTING THE

WRIT OF CERTIORARI SOUGHT HEREIN

ARE SERRA 5 KC eee ea eee ewe es 5

CONULARSIUE 0 os Cc cctcew he eeeua ae eee eneee. 14

- lil -

TABLE OF AUTHORITIES

CASES CITED

Bantz v. Montgomery Estates, Inc.,

163 Wis. 2d 973,

473 N.W.2d 506 (Ct. App) 1991) ............ 8

Ferraro v. Koelsch,

124 Wis. 2d 154,

i OE i ss wale &

Hewitt v. Helms,

459 U.S. 460, 471, 472,

103 S. Ct. 864,

ED vc ec ew eeeseeeh wa 6

Larson v. City of Tomah,

193 Wis. 2d 225,

UE ETE SUP AOUED sca c wa acecdcececsses 9

Sandin v. Conner,

115 8. Ct. 2293 (1995),

Se ee Ss ee EE ROD sg oh ko 0 aha 0b 0k we 6

State v. Cannon,

196 Wis. 534, 221 N.W. 603 (1928) ......... 11

Vorwald v. School Dist. of River Falls

167 Wis. 2d 549, 482 N.W.2d 93 (1992),

cert. denied, 506 U.S. 941 (1992) ........ 5-10

OTHER AUTHORITIES

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Sup. Ct. R. 10 (United States Supreme

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No. 96-254

In The

Supreme Court of the United States

October Term, 1995,

JOAN FLYNN, ROBERT BERTERMANN, EVA

CHRISTOPHERSON, SALLY GUZEK, PAUL

ROSENQUIST, JAY WILDFONG, ED BOWMAN,

SHIRLEY DANDENEAU, BONNIE FULLER, HELEN

HESS, JOHN GRECO and JOSEPH PORCARO,

Petitioners,

¥.

DENNIS KORNWOLF and STEPHEN SIMANEK,

in their individual capacities, and RACINE COUNTY,

a municipal corporation,

Respondents.

On Writ Of Certiorari To The United States Court of Appeals

For The Seventh Circuit

BRIEF OF RESPONDENT, STEPHEN SIMANEK, IN

OPPOSITION TO GRANTING OF PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

& —

The respondent, Stephen Simanek, reflecting his

judicial status as a Circuit Judge of the State of Wisconsin,

will hereinafter be called "Judge Simanek;" and the

Petition for Writ of Certiorari filed herein "The Petition."

The United State Court of Appeals for the Seventh Circuit

will hereinafter be called "Seventh Circuit."

+ SRS

STATEMENT OF THE CASE

Respondent Judge Simanek agrees with the

statement of the case set down by petitioners except for the

following objectionable features. Such features are:

(1) The presence at p. 3, The Petition, of the

paragraph commencing, "[bleginning on May of 1991,"

consisting entirely of matters dehors the record.

(2) The presence in The Petition of other matters

dehors the record. They are: (a) the statement at p. 4

thereof that, "In the summer of 1992, Respondent, Racine

County Executive Dennis Kornwolf, decided that the

Petitioners should be laid off to prevent them from

obtaining pension coverage for 1992;" (b) the statement at

p. 5 thereof that, "Because of the resulting reduction in

hours of available work, two court attendants were forced

to retire;" (c) the statement at p. 5 thereof that, "He [Judge

Simanek] also notified them that if they wished to apply to

the Kelly Temporary Service, they would be assigned to the

courthouse and would perform the same duties they had

previously performed as county employees" (bracketed

material supplied); and (d) the statements at p. 5 thereof

that, "The cost to Racine County, per hour, to employ the

part-time court attendants was $6.54 without pension, and

$6.90 with pension. The cost to Racine County, per hour,

to appoint Kelly Temporary Service employees to the same

position was $7.20 per employee."

(3) The presence in The Petition, at p. 4, of the

assertion that "Kornwolf undertook these layoffs despite

the bailiffs having offered to work for less pay in order to

keep their jobs (App. 37), and despite the Racine County

Corporation Counsel having advised that the layoffs were

illegal." Such assertions are objectionable because App. 37

does not show "the bailiffs having offered to work for less

pay in order to keep their jobs," and because the record

here involved is devoid of any showing that "the Racine

County Corporation Counsel .. . advised that the layoffs

were illegal."

(4) The presence in The Petition of

argumentative language, namely, the reference in the last

paragraph of p. 4 thereof to "the court order specifying that

the Petitioners were employed until January 31,

1993 ...." (Emphasis supplied.)

- +

SUMMARY OF ARGUMENT

Petitioners submit, as their first reason for granting

the writ sought herein, that "Certiorari should be granted

to make clear that the Seventh Circuit Court of Appeals’

use of the ‘explicitly mandatory language’ standard to

determine whether the petitioners had a property interest

in their employment was error because state law provides

the sole reference for determining such interests." The

Petition, p. 9. Assuming, for purposes of argument only,

that the Seventh Circuit erred in employing the "explicitly

mandatory language" standard, derived from Federal case

law, in determining that the petitioners had no property

interest in their employment, it is then submitted that

such error was innocuous, because under Wisconsin case

law, not resorted to by the Seventh Circuit, petitioners

clearly had no property interest in their employment.

Consequently, no worthwhile legal interest would be served

by a decision of this Court that the assumed error above-

described was committed by the Seventh Circuit, since

there is no good reason to presume that Federal courts in

general will be prone to the commission of such error.

Petitioners submit, as their second reason for

granting the writ sought herein, that "Certiorari should be

granted to make clear that the ‘explicitly mandatory

language’ standard, which this court has never approved in

the property interest context, and has recently rejected in

the prisoners’ rights context, should not be used by Federal

courts to determine whether a property interest exists."

The Petition, p. 16.

Pertinent, quoted parts of Rule 10 of the Rules of

this Court show no compelling reason for granting the writ

sought herein.

While Rule 10 does not cover all of the compelling

reasons for granting a writ of certiorari, this case presents

no compelling reason other than one of those described in

Rule 10, for granting the writ. Again assuming, for

purposes of argument only, that the Seventh Circuit erred

in its application of the "explicitly mandatory language"

standard, the innocuous nature of such application rules

out the existence of any truly compelling reason for

granting the writ sought herein. Had such application

denied the petitioners a property right in their employment

to which they were entitled, a compelling reason would

arguably have existed for granting the writ; but no such

denial occurred.

Petitioners apparently believe that the writ should

issue herein for warning and instructional purposes; with

petitioners apparently believing that an opinion issuing

such writ and remanding this case to the Seventh Circuit

for reconsideration of so much of its decision as involved

application of the "explicitly mandatory language" standard

would serve as a warning device and instructional tool for

lower Federal courts. But the reason, if any, for issuance

of the writ to serve such purposes falls far short of a truly

compelling reason for issuance of the writ herein.

———EE

ARGUMENT

THE REASONS PRESENTED BY

PETITIONERS FOR GRANTING THE

WRIT OF CERTIORARI SOUGHT HEREIN

ARE MERITLESS.

Petitioners submit, as their first reason for granting

the writ they seek, that "Certiorari should be granted to

make clear that the Seventh Circuit Court of Appeals’ use

of the ‘explicitly mandatory language’ standard to

determine whether the petitioners had a property interest

in their employment was error because state law provides

the sole reference for determining such interests." The

Petition, p. 9.

In submitting such reason, petitioners first contend,

and correctly, that "A. This Court has consistently held

that state law is the sole reference by which property

interests in employment are to be determined." The

Petition, pp. 9, 10. They further contend, correctly, that

"C. There is no requirement in Wisconsin law that

language creating a property interest in employment must,

in addition to specifying the duration of employment,

contain explicitly mandatory language.” The Petition, pp.

12, 13. They then assert, "D. The Seventh Circuit Court of

Appeals refused to follow state law to determine whether

the petitioners had a property interest in their

employment." The Petition, p. 14. Such assertion is at

least in some degree unfair to the Seventh Circuit, which,

in ruling on the question of whether the court order here

involved vested a property interest in their employment in

the petitioners, specifically mentioned and quoted Vorwald

v. School Dist. of River Falls (hereinafter "Vorwald"), 167

Wis. 2d 549, 482 N.W.2d 93 (1992), cert. denied, 506 U.S.

941 (1992), a case, as shown below, decisive on the above-

described question. See App. 6. While the Seventh Circuit

cannot be said to have ignored Vorwald, it chose, in

responding to petitioners’ contention that the court order

in question had “abrogated Wisconsin's general rule of at-

will employment and made their employment terminable

only for cause" to apply the “explicitly mandatory

language" standard, stating that, "Absent such language,

the mere fact that the plaintiffs allegedly relied on the

order as guaranteeing their employment until the order

expired was not sufficient to create a property interest that

would trigger due process protections." App. 7. Such

standard may have its provenance in Federal law,

specifically in Hewitt v. Helms, 459 U.S. 460, 471, 472, 103

S. Ct. 864, 74 L. Ed. 2d 675 (1983); with such standard

relating to the creation and existence of a “liberty interest"

triggering due process protections, rather than a property

interest. This Court has now abandoned the methodology

of seeking a liberty interest in the language of state

regulations. See Sandin v. Conner, 115 S. Ct. 2293, 2300

(1995), and n.5 therein, at p. 2300; 132 L. Ed. 2d 418, n.5

at 429. Nevertheless, it is clear that the Seventh Circuit

did apply such standard in reaching its decision herein on

the effect of the court order in question.

Even if the Seventh Circuit had no Supreme Court

precedent for its use of the "mandatory language" predicate

in this context, must certiorari be granted here to correct

any error? The answer, it is submitted, is an emphatic

"No," in view of the innocuous nature of such assumed

error. Why innocuous? Because, it is submitted, it is

amply clear under Wisconsin case law, namely, Vorwald

cited supra, that the court order in question, by its very

nature, could not and did not vest in the petitioners a

property interest in their employment. Vorwald leaves no

doubt on that score, by its unequivocal holding that,

“Absent civil service regulations or laws, or a contract or

collective bargaining agreement, a municipal employee is

an employee at will and has no property interest in

employment." (Emphasis supplied; Vorwald, 167 Wis. 2d

at 557.) And obviously, the court order here in question is

not a civil service regulation, a civil service law, a contract,

or a bargaining agreement. Petitioners, in a patent and

futile effort to avoid the unfavorable impact of Vorwald on

their claim to possess a property interest in their

employment, argue, with reference to the above-quoted

Vorwald holding, that, "The context in which the court

made this statement makes clear that the court did not

intend to exclude court orders as potential sources of

property interests. The court was merely identifying the

more typical kinds of documents which create property

rights in employment. The court made clear later in the

opinion that a variety of documents could create property

interests and cited as examples employee handbooks and

personnel policies." (The Petition, p. 11.)

The argument falls short. Vorwald, in its portion

immediately above-quoted, did neither of the two things

described in the first two sentences of such argument, nor

did the Vorwald court make clear "later in the opinion that

a variety of documents could create property interests and

cited as examples employee handbooks and personnel

policies." What such court did do, “later in the opinion," in

finding that “the school district’s personnel policy No. 4210

did not alter Vorwald’s employee-at-will status," was to

then declare that, “In some limited circumstances,

employee handbook and personnel policies can abrogate the

employment-at-will relationship." (Emphasis supplied.)

This statement, it is submitted, does not show Vorwald as

holding that "a variety of documents could create property

interests" nor does it show Vorwald as citing, as examples

of such "variety," employe handbooks and personnel

policies. Instead, the two portions of Vorwald above

quoted, read in conjunction, show Vorwald as holding that

a municipal employe is an employe-at-will, and has no

property interest in his/her employment, unless such

interest is created by civil service regulations or civil

service laws, or a contract, or a collective bargaining

agreement; or, in some limited circumstances only, by

employe handbooks and personnel policies. Clearly, a

Wisconsin municipal employe can acquire a property

interest in his/her employment only by one of the above-

described modes, none of which is a court order, or

anything akin thereto.

Vorwald is one of several Wisconsin cases standing

for the proposition that handbooks or personnel procedures

may abrogate employment at will. See also, Ferraro v.

Koelsch, 124 Wis. 2d 154, 368 N.W.2d 666 (1985) and

Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 473

N.W.2d 506 (Ct. App. 1991). However, the handbook or

policy in question only does so by including a term that the

employe may be dismissed only for "just cause," which thus

creates the binding employment contract abrogating

employment at will, and, in the case of a public employer,

amounts to a source for the constitutionally protected

property interest in continuing employment. When there

is no language containing a "just cause" provision, or where

there is additional language limiting such an interpretation

of the handbook, then the Wisconsin courts have refused to

find a contract that abrogates employment at will. See

Vorwald, 167 Wis. 2d at 558 (school district’s self-imposed

policy relating to discharge did not limit its common law

right to discharge employe at any time); Bantz, 163 Wis. 2d

at 983 (handbook that only suggests, but does not mandate

progressive discipline and does not state that discharge

will be only for "just cause" does not abrogate employment

at will). In contrast in Ferraro, 124 Wis. 2d at 159, the

employe handbook stated, "[The employer] policy requires

that employees not be dismissed or laid-off without just

cause." There, the Wisconsin Supreme Court was

persuaded that the "just cause" language created a contract

that abrogated employment at will.

However the court order at issue here may be

construed, it most clearly is not a document that provided

that the bailiffs would be terminated only for "just cause."

The lack of this term, as the Seventh Circuit recognized,

pre-empted the bailiffs’ argument that they had a property

interest created by the court order. Nothing in the court

order abrogated the bailiffs’ status as “at will" employes.

Therefore, nothing in the court order gave the bailiffs a

property interest under Wisconsin law.

The Petition, at p. 12, asserts that because the court

order in question stated that petitioners’ employment “was

for a specified duration, under Wisconsin law, it gave the

Petitioners _a_ property interest _in their employment."

(Emphasis supplied.) In response to this, it must first be

observed that the order in question (App. 43, 44) contains

no express statement that petitioners’ employment “was for

a specified duration"; and it is highly arguable that such

order, merely because it provides that it is "effective

immediately this date, December 19, 1991, and shall expire

January 31, 1993" (App. 44), must be read as implying

employment of petitioners "for a specified duration." Even

if, however, it be assumed, for purposes of this argument

only, that the court order in question so implies, it is then

submitted that Wisconsin law nowhere holds that any

instrument, paper, or thing indicating a “specified

duration" for the employment of a municipal employe vests

a property right to such employment in such employe.

Instead, as Vorwald so clearly shows, such right can only

be vested in a municipal employe by one of the modes so

precisely described therein, none of them a court order.

Petitioners assert that, "Wisconsin law provides that a

property interest in employment exists where the

employment is for a specified duration." The Petition, p.

10. It thereby implies that any mode creating employment

for a municipal employe, so long as such employment is for

a definite duration, creates a property interest in such

employment. In support of such assertion, The Petition

quotes the statement in Larson v. City of Tomah, 193 Wis.

2d 225, 232-33 n. 7, 532 N.W.2d 726, 729 n. 7 (1995) that,

"An employee-at-will is one who is hired for an indefinite

period of time end who may be discharged without cause."

This statement, it is submitted, goes no further than to

define what an “employee-at-will" is, and to observe that

he/she "may be discharged without cause." And it is

manifestly not a statement or holding which overrides

Vorwald, and enables a municipal employe to acquire a

property interest in his/her employment in some manner

other than by one of the modes described in Vorwald.

In closing this argument, two other aspects of The

Petition merit some mention. First is its portion reading:

The creation of a property interest r

under Wisconsin employment law does not

depend on the form of the document

establishing the employment relationship

but on whether the document states that the

employment is for a specified duration. The

opinion of the Seventh Circuit Court of

Appeals was correct to the extent that it

recognized that under Wisconsin law a court

order could be the source of a property

interest in employment.

The Petition, p. 11.

In response to this, it is first submitted that the

creation of a property interest for a municipal employe in

his/her employment can only come about in Wisconsin, as

Vorwald shows, through one of the modes specified therein.

In further response, it simply is not true that the Seventh

Circuit, in its decision here involved, "recognized that

under Wisconsin law a court order could be the source of a

property interest in employment." See App. 6, 7.

The second aspect of The Petition meriting some

mention is its attempt, at pp. 11, 12, to put the court order

in question into the Vorwald category of "civil service ...

laws" which provide one of the modes whereby a municipal

employe in Wisconsin can acquire a property interest in

his/her employment. Obviously, however, to equate the

court order in question, or any court order, with civil

service laws, is to take an untenable position. Court orders

are not laws of any kind, but sui generis. It has been said

of a court order that it is a "judicial act" (see 60 C.J.S.

Motions & Orders, § 1, p. 5); but the order in question is

arguably an administrative act. Judicial or administrative,

it is plainly not a civil service law, or any kind of law,

produced by legislative action, in which a court may not

engage.

Here, it should perhaps be observed that in seeking

to equate the court order in question with civil service

laws, petitioners erroneously assert that, “under Wisconsin

law, a court order employing court personnel is an example

of judges exercising inherent power under the state

constitution." (Emphasis supplied; The Petition, p. 12.)

Not so. First, inherent powers in a judicial system are not

those of a judge, but of a court. Second, they derive not

from a constitution or from a statute, but from the nature

of a court. As well put in State v. Cannon, 196 Wis. 534,

536, 221 N.W. 603 (1928), such powers, from time

immemorial, “have been conceded to courts because they

are courts." (Emphasis supplied.) Obviously, even if the

court order in question was “an example of judges

exercising inherent power under the state constitution,"

such example would provide no support for petitioners’

effort to equate the court order in question with a civil

service law, since the issuance of a court order, under

constitution or statute, would do nothing to establish it as

a civil service law, or other law, which it is not, no matter

how issued. And as above shown, such example does not

even exist.

In light of the foregoing argument it is, then,

submitted that no worthwhile legal interest would be

served by a decision of this Court that the assumed error

above-described was committed by the Seventh Circuit,

since there is no good reason to presume that Federal

courts will be prone to the commission of such error

Petitioners submit, as their second reason for

granting the writ sought herein that, "Certiorari should be

granted to make clear that the ‘explicitly mandatory

language’ standard, which this Court has never approved

in the property interest context, and has recently rejected

in the prisoners’ rights context, should not be used by

federal courts to determine whether a property interest

exists." The Petition, p. 16.

In pertinent part, Rule 10 of the Rules of this Court

reads: (

A petition for a writ of certiorari will be

granted only for compelling reasons. The

following, although neither controlling nor

fully measuring the Court’s discretion,

indicate the character of the reasons the

Court considers:

(a) a United States court of

appeals has entered a decision in conflict

with the decision of another United States

court of appeals on the same important

matter; has decided an important federal

question in a way that conflicts with a

decision by a state court of last resort; or has

so far departed from the accepted and usual

course of judicial proceedings, or sanctioned

such a departure by a lower court, as to call

for an exercise of this Court’s supervisory

power;

(c)... a United States court of

appeals has decided an important question

of federal law that has not heen, but should

be, settled by this Court, or tas decided an

important federal question im a way that

conflicts with relevant @ecisions of this

Court.

Plainly, the situation here involved shows no

compelling reason, under the above-quoted rule language,

for granting the writ sought herein.

As Rule 10 shows, however, it does not encompass

all the "compelling reasons" which will produce a granting

of the writ. Does this case present a compelling reason,

other than one of those described in Rule 10, for granting

the writ? It is submitted it does not. Even if the Seventh

Circuit was relying upon outdated legal doctrine when it

applied the "explicitly mandatory language" standard, it is

submitted that the fact, shown above, that such application

was innocuous rules out the existence of any truly

compelling reason for granting the writ sought herein.

Had the application of such standard been genuinely

injurious to the petitioners, by denying to them a property

right in their employment to which they were entitled, a

compelling reason would arguably have existed for

granting the writ. But such application did not so injure

the petitioners.

From Argument II. of The Petition, pp. 16-19, it

would seem that petitioners apparently believe that the

writ should issue herein for what might be called warning

and instructional purposes; with it apparently being

petitioners’ belief that an opinion issuing such writ, and

remanding this case to the Seventh Circuit for

reconsideration of so much of its decision as involved

application of the “explicitly mandatory language”

standard, would serve as a warning device and

instructional tool for the lower Federal courts, trial and

appellate. But the reason, if any, for issuance of the writ

_ to serve such purposes falls far short, it is submitted, of

providing a truly compelling reason for issuance of the

writ.

CONCLUSION

For the reasons above shown, The Petition should

be denied.

Respectfully submitted,