Opposition Brief — Lucas v. Gee

No. 95-1737

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

VINCENT A. LUCAS, Petitioner

v.

E. GORDON GEE, et al., Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FRANKLIN COUNTY, OHIO, COURT OF APPEALS

RESPONDENTS’ BRIEF IN OPPOSITION

BETTY D. MONTGOMERY

ATTORNEY GENERAL

Jeffrey S. Sutton Steven J. McDonald*

State Solicitor Assistant Attorney General

30 East Broad Street 33 West 11th Avenue

17th Floor Suite 209

Columbus, Ohio 43215 Columbus, Ohio 43201

(614) 466-8980 (614) 292-061 1

*Counsel of Record

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RESTATEMENT OF QUESTIONS PRESENTED

1. Should this Court exercise its supervisory powers to

correct an alleged factual error by a mid-level state appellate

court when the issue was not properly raised below and the

state law relevant to that issue is, as even the petitioner

concedes, already fully consistent with federal law?

2. Does a former member of an advisory university body,

who has no right to participate in or speak at its meetings,

unless the body, in its sole discretion, invites such

participation, have standing to seek an injunction to enforce

the body’s internal parliamentary rules on behalf of its

current members?

3. Does this Court have jurisdiction to consider whether a

state trial court properly interpreted and applied that state’s

rules of civil procedure?

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ii

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE CASE I

INTRODUCTION l

STATEMENT OF FACTS 2

REASONS WHY THE PETITION SHOULD BE DENIED 6

I. Petitioner did not properly raise his

constitutional claims in the courts below. 6

II. Petitioner lacks standing to assert his

remaining claims. 8

III. This Court lacks jurisdiction to interpret

state rules of civil procedure. 9

[V. There is no "special and important

reason” for the Court to hear this case. 10

CONCLUSION 1]

iii

TABLE OF AUTHORITIES

Alexander v. Yale University, 631 F.2d 178

(2d Cir. 1980) )

Allen v. Wright, 468 U.S. 737 (1984) 9

Madison Joint School District v. Wisconsin

Employment Relations Commission,

429 U.S. 167 (1976) im By.

O’Shea v. Littleton, 414 U.S. 488 (1974) 9

Warth v. Seldin, 422 U.S. 490 (1975) 9

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

VINCENT A. LUCAS, Petitioner

v,

E. GORDON GEE, et al., Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FRANKLIN COUNTY, OHIO, COURT OF APPEALS

The respondents, The Ohio State University; E.

Gordon Gee, the President of Ohio State and the presiding

officer of its University Senate; and James L. Nichols, the

Treasurer of Ohio State and the Parliamentarian of its

University Senate, respectfully request that this Court deny

the petition for a writ of certiorari, seeking review of the

Franklin County, Ohio, Court of Appeals’ opinion in this

case. That opinion is reported at 104 Ohio App. 3d 423,

662 N.E.2d 382 (1995), motion for review denied, 74 Ohio

St. 3d 1418, 655 N.E.2d 738 (1995), motion for

reconsideration denied, 74 Ohio St. 3d 1465, 656 N.E.2d

1300 (1995).

COUNTERSTATEMENT OF THE CASE

INTRODUCTION

Contrary to _ petitioner Vincent Lucas’s

characterization, this pro se petition for a writ of certiorari

2

is merely his latest step in a lengthy campaign of harassment

by litigation. It appears that, for Lucas, litigation is both a

game and an obsession. This is only one of four pro se

lawsuits that he has now filed against respondents and

various related parties on much the same issues. Indeed, just

two weeks before he filed his petition with this Court, he

refiled this very same case in the United States District Court

for the Southern District of Ohio, apparently in an effort to

prolong this litigation still further regardless of this Court’s

determination on his petition. In each case and at each stage,

he has filed countless briefs and motions and asserted, but

rarely pursued, ever-shifting theories as though he were

playing "litigation dodgeball." In what is for him typical

fashion, he served his petition for a writ of certiorari on

respondents’ counsel in an envelope that was plastered with

postage stamps honoring former President Nixon and that

bore the handwritten inscription "may the spirit of Richard

Nixon bless these briefs."

There is no need or reason for this Court to ensnare

itself in Lucas’s web of vexation and gamesmanship. Over

the course of the past two years, eleven judges sitting on

three different courts have already considered Lucas’s claims

in this case at great length and have unanimously rejected

them on no fewer than five separate occasions. In words that

are now doubly true, they have noted that "[t]he time and

effort devoted to this case by the trial court and the court of

appeals far exceed[] the legal significance of the various

allegations of wrongdoing complained of by [Lucas]." (Pet.

12a). Accordingly, and for the reasons set forth below, his

petition for a writ of certiorari should be denied.

STATEMENS OF FACTS

On November 5, 1993, the Board of Trustees of

respondent The Ohio State University voted to revise Ohio

3

State’s university-wide sexual harassment policy so as to

bring it into line with recent changes in the law. By its

express terms, that policy is applicable to all faculty, staff

and students at Ohio State. As such, it is also implicitly

incorporated in a provision of Ohio State’s Code of Student

Conduct prohibiting "[vjiolation of other published

University regulations, policies, or rules."

At the time of the revision of the university-wide

policy, the Student Code also contained a short, express

sexual harassment provision, and the University determined

to replace it with the revised policy. In accordance with its

informal tradition of seeking wide consultation on such

matters, the University brought the proposed revision before

the University Senate for an advisory vote on April 9, 1994.

The University Senate is composed of administrators, faculty

and students and, under University rules, is empowered to

"make recommendations" to the Board of Trustees.

Prior to the meeting, appellant Vincent Lucas, a

student member of the Senate, submitted a 12-page

memorandum detailing various objections to the proposed

revision, together with a proposed amendment. Copies of

both documents were distributed to each member of the

Senate before the meeting. During the meeting, Lucas spoke

a number of times and at some length concerning his views

on the proposed revision -- in fact, he spoke more, and more

often, on the subject than any other member of the Senate.

Among other things, Lucas presented his proposed

amendment, addressed his reasons for making it, stated his

belief that the proposed revision was unconstitutional and

referred the Senate to his lengthy memorandum for further

detail.

As the meeting progressed, however, Lucas became

increasingly disruptive, and it became increasingly clear that

4

he sought to obstruct consideration of the proposed revision,

not to further it. Accordingly, respondent E. Gordon Gee,

who, as Ohio State’s President, serves as the presiding

officer of the Senate, eventually brought the discussion to a

close and called for a vote. The Senate then voted to

endorse the Student Code revision by the resounding margin

of 69-10.

Soon thereafter, Lucas filed a pro se, class action

lawsuit in the Franklin County, Ohio, Court of Common

Pleas against Ohio State, Gee and the Senate’s

Parliamentarian (collectively, "Ohio State"). Lucas’s

complaint alleged that these respondents had “blatantly

disregarded" Robert’s Rules of Order and thereby committed

some 17 technical violations of parliamentary procedure at

the Senate meeting. On that basis, and that basis alone,

Lucas asked the trial court to declare the Senate vote "null

and void" "pursuant to Robert’s Rules of Order," to enjoin

Gee from engaging in further such "violations," and to award

Lucas his costs and "attorney fees." Despite Lucas’s

professed belief that the new sexual harassment policy was

unconstitutional, he did not challenge it in any way.

On June 6, 1994, Ohio State moved to dismiss

Lucas’s complaint for failure to state a claim upon which

relief may be granted -- specifically, that Robert’s Rules of

Order and other such forms of internal parliamentary

procedure do not have the status of law and are not judicially

enforceable. Ohio State also noted that Lucas’s lawsuit

would have no practical effect even if Lucas were to prevail.

Because the university-wide sexual harassment policy would

remain in effect regardless of the outcome of Lucas’s

lawsuit, Ohio State’s students would continue to be subject

to it no matter what happened to the vote on the Student

Code provision. On July 6, 1994, the trial court notified the

parties that it was converting the motion to dismiss into a

5

motion for summary judgment and asked them to address the

latter issue in more detail.

While Ohio State’s motion was pending, two

additional events of relevance occurred. First, on June 3,

1994, Ohio State’s Board of Trustees voted unanimously to

replace the old Student Code sexual harassment provision

with the new university-wide sexual harassment policy.

Second, soon after Lucas filed his complaint, the University

Senate held its last meeting of the academic year and Lucas’s

term of office came to an end. Although Lucas subsequently

sought another term, he was not reelected. On the basis of

these two events, Ohio State also sought the dismissal of

Lucas’s complaint on the grounds that his challenge to the

Senate vote had been mooted by the independent action of

the Board of Trustees and that, having lost office, he no

longer had standing to seek prospective injunctive relief to

enforce Senate rules.’

On August 10, 1994, the trial court granted Ohio

State’s dispositive motion. In its opinion, the trial court held

that the university-wide policy would continue to apply

"irrespective of whether or not . . . Gee violated Robert’s

Rules of Order" with respect to the Student Code provision

and that there was therefore no real case or controversy to be

resolved; that the courts lack jurisdiction to interfere with

matters of internal parliamentary procedure; and that, in any

event, the case was mooted by the June 3, 1994, adoption of

the Student Code provision by Ohio State’s Board of

In what was apparently an effort to resurrect his standing, Lucas then filed an

original action in quo warranio in the Franklin County, Ohio, Court of Appeals

against the student who was named the alternate for the student who succeeded

Lucas as a student Senator. When the Court of Appeals dismissed that case for

failure to state a claim upon which relief could be granted, Lucas refiled it as a

mandamus action against Ohio State and the student in the Franklin County,

Ohio, Court of Common Pleas. That case was also dismissed.

;

Trustees. (Pet. 18a-22a).

Lucas appealed to the Franklin County, Ohio, Court

of Appeals, which affirmed the trial court’s ruling on June 1,

1995. Lucas v. Gee, 104 Ohio App. 3d 423, 662 N.E.2d

382 (Franklin Cty. 1995) (Pet. la-10a). In its opinion, the

court of appeals specifically held that Lucas’s "first

assignment of error regarding a denial of First and

Fourteenth Amendment rights is not reviewable on this

appeal as plaintiff did not raise these questions in the trial

court." Id., 104 Ohio App. 3d at 426, 662 N.E.2d at 384

(Pei. 4a) (emphasis added). The court of appeals also denied

Lucas’s subsequent motion for reconsideration (Pet. 1 la-

13a), and the Ohio Supreme Court denied Lucas’s motion for

discretionary review, Lucas v. Gee, 74 Ohio St. 3d 1418,

655 N.E.2d 738 (1995), and yet another motion for

reconsideration, Lucas v. Gee, 74 Ohio St. 3d 1465, 656

N.E.2d 1300 (1995).

REASONS WHY THE PETITION SHOULD BE DENIED

i. PETITIONER DID NOT PROPERLY RAISE HIS

CONSTITUTIONAL CLAIMS IN THE COURTS BELOW.

In his petition, Lucas’s central proposition appears to

be that pro se plaintiffs are entitled to "leeway" in their

pleadings, particularly when federal constitutional rights are

at stake, and that he therefore should have been permitted to

proceed with a First Amendment claim against the

respondents notwithstanding the serious shortcomings of his

complaint. While perhaps unexceptional in the abstract, that

proposition has nothing whatever to do with the facts of this

case and is not properly before this Court.

As the courts below found, the facts stated in Lucas’

complaint cannot fairly be stretched to encompass an

7

individual constitutional challenge to Ohio State’s actions.

Rather, what that complaint states, plainly and at

considerable length, is simply that, at a meeting of the

University Senate, Gee made a series of parliamentary

rulings that Lucas believes to have "blatantly disregarded"

Robert’s Rules of Order in no fewer than 17 separate ways.

(Pet. 49a-52a).

Nowhere in his lengthy and highly specific exposition

did Lucas in any way mention the First Amendment or any

other provision of federal law, nor can any such federal

claims reasonably be read into his complaint by inference.

As Lucas made clear from the very first paragraph of his

complaint, the claims that he asserted were all class claims.

Lucas’s eleventh-hour assertion that he was deprived of his

own First Amendment rights, on the other hand, was plainly

personal and individual in nature. Moreover, Lucas’s new-

found claim was not even remotely connected to the relief

that he sought. In his prayer for relief, Lucas asked only

that the trial court invalidate certain votes taken at the Senate

meeting "pursuant to Robert’s Rules of Order" and enjoin

Gee to comply with those rules in the future. (Pet. 52a).

Such relief has nothing whatever to do with Lucas’s supposed

constitutional claim. Had he actually asserted such a claim,

he could reasonably have been expected to have sought a

corresponding remedy.”

>In any event, contrary to Lucas’s apparent beliefs, there is no constitutional

right to filibuster. In Madison Joint School District v. Wisconsin Employment

Relations Commission, 429 U.S. 167 (1976), this Court expressly held that,

notwithstanding the First Amendment, “[p]lainly, public bodies may confine their

meetings to specified subject matter.” /d. at 175 n.8. Moreover, the applicable

rules of parliamentary procedure specifically provide that a member of the Senate

has no right to speak more than twice or for more than ten minutes total on any

given issue, that a member cannot make a second speech on an issue until all

other members who wish to do so have had an opportunity to speak once, and

that, if it appears that a member is engaged in disruptive or obstructive behavior,

the chair need not recognize him at all and may properly rule his motions out of

order. The uncontroverted evidence below established that Gee acted in

8

The fact that Lucas is proceeding pro se makes no

difference. Lucas did not properly raise that issue in the

courts below, and it has never been expressly ruled upon.

Indeed, until his motion for reconsideration in the court of

appeals, he instead asserted that he possesses "proficiency in

legal research and writing and a superior understanding of

legal jurisprudence," that he is "vastly more qualified than

the average layman," and that he therefore "possess[es] the

skills necessary to prosecute the case." In any event,

Lucas’s petition amply demonstrates that he is in no need of

any further "leeway" from the courts.

Finally, as even Lucas concedes, Ohio law on these

issues is fully consistent with established federal standards.

(Pet. 13-18). Indeed, Lucas himself argues that the Ohio

Supreme Court and every federal circuit that has ever

considered these issues are in complete agreement on the

relevant law. (/d.). Accordingly, even if the court of

appeals had misapplied Ohio law "contrary to the facts of

this case" (Pet. 12), that factual "mistake" would not warrant

this Court’s review. This Court does not sit to determine

whether the "ruling [of a mid-level Ohio court] conflicts with

the decisions of the . . . Ohio Supreme Court." (Pet. 22).

Il. PETITIONER LACKS STANDING TO ASSERT HIS REMAINING

CLAIMS.

Apparently conceding that the vote of Ohio State’s

Board of Trustees to adopt the Student Code sexual

harassment provision mooted his claim for retrospective

relief, Lucas nevertheless continues to argue that he is

entitled to injunctive relief "requiring [Gee] to comply with

the Senate’s rules of debate and procedure" in the future.

(Pet. 29). Contrary to Lucas’s assertions, however, there is

accordance with these provisions at the April 9, 1994, Senate meeting.

————— <<

9

no evidence whatever in the record to suggest that such

"violations" are rampant at Ohio State, and Lucas, who is no

longer a member of the Senate, cannot enforce the rights of

current Senators in any event.

It is not enough for Lucas to assert a belief that a

"law" may somehow be violated at some point in the future;

"an asserted right to have the Government act in accordance

with law is not sufficient." Allen v. Wright, 468 U.S. 737,

754 (1984). Rather, "a plaintiff . . . must allege specific,

concrete facts demonstrating that the challenged practices

harm him, and that he would personally benefit in a tangible

way from the Court’s intervention." Warth v. Seldin, 422

U.S. 490, 508 (1975) (emphasis in original; footnote

omitted). "Past exposure to [allegedly] illegal conduct does

not in itself show a present case or controversy regarding

injunctive relief . . . if unaccompanied by any continuing,

present adverse effects." O'Shea v. Littleton, 414 U.S. 488,

495-96 (1974). In short, because Lucas is no longer a

member of the’Senate and has no right to participate in its

future meetings,’ "the requested relief [would not] aid [him]

in the slightest," and he therefore lacks standing to pursue it.

Alexander v. Yale University, 631 F.2d 178, 184 (2d Cir.

1980).

Il. THIS COURT LACKS JURISDICTION TO INTERPRET STATE

RULES OF CIVIL PROCEDURE.

Lucas’s final Question Presented asks this Court to

interpret a provision of the Ohio Rules of Civil Procedure

> While meetings of the Senate are open to the public, visitors have no floor

privileges. They may not introduce or vote on any matter before the Senate, and

they may speak only upon invitation and upon such terms and conditions as the

Senate, in its discretion, may set. In any event, Lucas has attended only a single

meeting of the Senate in the nearly two years since his term expired and, even

then, made no effort to participate.

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and to hold that the Ohio courts applied it improperly in this

case. That issue, which Lucas never raised below, is purely

a matter of state law and is not within the scope of this

Court’s jurisdiction.

IV. | THERE IS NO "SPECIAL AND IMPORTANT REASON" FOR THE

COURT TO HEAR THIS CASE.

For the reasons stated above, there is no federal

question at all in this case, let alone a substantial one.

Moreover, Lucas does not claim that there is any conflict at

all among the courts on the legal issues that he considers

relevant. Rather, this case presents, at most, an alleged

factual error by a mid-level state court in applying a state

law standard that, as even Lucas himself concedes, is in full

accord with widely established federal law.

Moreover, the internal workings of a purely advisory

university body are of little consequence either within or

outside of the ivory tower. Indeed, the issue is of no real

consequence even to Lucas. Notwithstanding his professed

concern for the integrity of Senate proceedings, Lucas has

attended only a single meeting of the Senate in the nearly two

years since his term expired, and did so then only after his

lack of interest became an issue in the Ohio Supreme Court.

He has pursued this lengthy litigation for strictly vindictive

reasons.

11

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

BETTY D. MONTGOMERY

OHIO ATTORNEY GENERAL

Jeffrey S. Sutton

State Solicitor

30 East Broad Street

17th Floor

Columbus, Ohio 43215

(614) 466-8980

Steven J. McDonald*

Assistant Attorney General

33 West 11th Avenue, Suite 209

Columbus, Ohio 43201

(614) 292-0611

*Counsel of Record