Opposition Brief — Gordon v. Community First Bank of Nebraska

oupreme Court, VU.

>st & BD

JUN 15 1999

No. 98-1862 CLERK

In The

Supreme Court of the United States

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RICHARD L. GORDON,

Petitioner,

COMMUNITY FIRST BANK OF NEBRASKA (formerly

THE ABBOTT BANK), RICHARD J. CHAPIN,

DARRELL RAUM, PAT KESLAR, TOM WILLNERD,

JAMES A. HANSEN, LUCINDA GLEN

and KENT PLUMMER,

Respondents.

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On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Nebraska

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BRIEF OF RICHARD J. CHAPIN, DARRELL RAUM,

PAT KESLAR AND TOM WILLNERD

IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

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JosepH K. Meusey #12812

Counsel of Record

JosepH E. Jones #15970

MicHAeL J. Mooney #20118

FRASER, STRYKER, VAUGHN, MEusey,

Otson, Boyer & Biocn, P.C.

500 Energy Plaza

409 S. 17th Street

Omaha, Nebraska 68102

(402) 341-6000

Attorneys for Respondents

Richard J]. Chapin, Darrell Raum,

Pat Keslar and Tom Willnerd

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

bor

QUESTIONS PRESENTED FOR REVIEW

1. Whether Petitioner’s Fourth Amended Petition

alleged the violation of any constitutionally protected right

where it alleged merely that he, as an attorney, lost his job

with his law firm and his ability to practice law for a specific

client.

2. Whether the issuance of emergency orders authorized

by federal and state banking laws can constitute “abusive,

arbitrary and oppressive” conduct for the purposes of a claim

pursuant to 42 U.S.C. § 1983.

3. Whether the issuance of such emergency orders,

which merely prohibit a person from acting unlawfully and do

not command the termination of one’s employment, cause a

loss of employment for the purposes of a claim pursuant to 42

U.S.C. § 1983.

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ARGUMENT

This Brief in Opposition is submitted on behalf of Respon-

dents Richard J. Chapin, Darrell Raum, Pat Keslar and Tom

Willnerd (the “Individual Respondents”). The Individual

Respondents are individuals, are not state actors, and are

various officers of the Community First Bank of Nebraska (the

“Bank”). For the following reasons, the Petitioner's Petition

for Writ of Certiorari should be denied.

The Petitioner alleges that he suffered a violation of his

constitutionally protected rights when, as a result of certain

emergency orders issued by the Nebraska Department of Bank-

ing acting pursuant to federal and state banking law, the

Petitioner's law firm (McGrath, North, Mullen & Kratz) lost its

attorney-client relationship with the Bank and the Petitioner, as

a result, lost his position with the firm. (Pet. App. 43). These

allegations, along with other State law tort claims, were made

in Petitioner's Fourth Amended Petition filed against the Indi-

vidual Respondents and others.

The Individual Respondents demurred to Petitioner's

Fourth Amended Petition. In Nebraska, in ruling on a demur-

rer, the Court considers as true only factual allegations of a

pleading, not the pleader’s conclusions. Neb. Rev. Stat.

§§ 25-806-810; Widga v. Sandell, 236 Neb. 798, 464 N.W.2d

155, 157 (1991). The Individual Respondents’ demurrer was

sustained.

On Petitioner’s subsequent appeal to the Nebraska

Supreme Court, the Nebraska Supreme Court appropriately

recognized that in his Fourth Amended Petition:

[T]he only factual allegations pertaining to conduct

directed at [Petitioner] by the [Individual Respon-

dents] and the state regulators are (1) the issuance of

an emergency order by the Department [of Banking]

requiring [Petitioner] to cease and desist from “man-

aging, controlling, directing or otherwise interfering

with any aspect of the ongoing business” of the Bank

and (2) the subsequent termination of the attorney-

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client relationship between the Bank and [Peti-

tioner’s] law firm, as a result of which [Petitioner]

alleges to have “lost his position” with the firm.

(Pet. App. 24; Gordon v. Community First State Bank, 255

Neb. 637, 653; 587 N.W.2d 343, 354 (1998). Thus, the Peti-

tioner alleges that his rights to practice law for a particular

client and for a particular law firm are Constitutionally pro-

tected, and that depriving him of those rights states a claim

pursuant to 42 U.S.C. § 1983.

In support of his claim, Petitioner relies on Paul v. Davis,

424 U.S. 693 (1976). In Paul, this Court stated that although

loss of reputation alone does not constitute a liberty or prop-

erty interest protected by the Fourteenth Amendment, a § 1983

claim will lie if the claimant can show loss of reputation plus

the loss of a “more tangible interest, such as employment.”

Paul at 701. While this statement alone, taken out of context,

appears to support Petitioner’s claim, Paul’s holding does not.

It is well established that in order to state a claim under 42

U.S.C. § 1983, a claimant must allege the deprivation of some

right which has been guaranteed by the Constitution. Adickes v.

Kress & Co., 398 U.S. 144, 150 (1970). Accordingly, after

discussing numerous other of this Court’s holdings including

many cited by the Petitioner herein, Paul ultimately held:

In each of these cases, as a result of the state action

complained of, a right or status previously recog-

nized by state law was distinctly altered or extin-

guished. It was this alteration, officially removing

the interest from the recognition and protection pre-

viously afforded by the State, which we found suffi-

cient to invoke the procedural guarantees contained

in the Due Process Clause of the Fourteenth Amend-

ment.

Paul at 711.

Among the rights which have been so recognized is the

right of all citizens to work for a living and this Court and

many others have recognized that all citizens have a liberty

interest in pursuing the occupations of their choosing. See, e.g.,

Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Likewise, an

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attorney has a right to practice law and cannot be deprived of

that right without due process. See Schware v. Board of Bar

Examiners, 353 U.S. 232, 238-39 (1957). The Petitioner, how-

ever, did not allege any facts showing that he could not

practice law, or that he could not, after losing his job with one

law firm, obtain a job at another. The Petitioner’s allegation is

that he has a constitutionally protected right to work for a

specific client and at a specific firm, which claim is quite

different than the recognized right to pursue a chosen occupa-

tion, or to practice law.

Although his Petition cites a string of cases allegedly

supporting the rights he claims, the Petitioner cites no author-

ity, and we have found none, recognizing the right of an

attorney to work for a specific law firm or to do legal work for

a specific client. In fact, each of the cases cited by the Peti-

tioner involved the general loss of a claimant’s employability

or occupational status as a result of some governmental stigma

or defamation. This is much different than allegations relating

to the loss of an isolated job or a single client.

Based on the foregoing, the Nebraska Supreme Court, in

affirming the lower court’s dismissal of the Petitioner’s § 1983

claim, appropriately recognized:

We are aware of no authority recognizing a constitu-

tionally protected right of a lawyer to represent a

particular client or work for a particular law firm.

Such relationships among private parties and entities

are usually terminable at will or governed by con-

tract.

(Pet. App. at 24-25); Gordon at 654, 587 N.W.2d at 354.

Because the Petitioner has not appropriately alleged the

violation of any constitutionally protected right, the Nebraska

Supreme Court’s decision was correct, and Petitioner’s Petition

for Writ of Certiorari should be denied.

In addition to the foregoing, in order to state a claim

pursuant to 42 U.S.C. § 1983, it is generally recognized that

the Fourteenth Amendment Due Process Clause, like its Fifth

Amendment counterpart, requires a showing of abusive, arbi-

trary or oppressive governmental conduct. DeShaney v. Win-

nebago, 489 U.S. 189, 196 (1989). Stated differently, in Myers

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v. Scott, 868 F.2d 1017, 1019 (8th Cir. 1989), the Eighth

Circuit Court of Appeals held “the theory of substantive due

process is properly reserved for truly egregious and extraordin-

ary cases.” Thus, many harms, though allegedly caused by a

state actor, do not fall within the scope of a § 1983 civil rights

claim, for § 1983 does not convert the Fourteenth Amendment

into a font of tort law that supercedes the tort systems already

available under individual state laws. Gregory v. City of

Rogers, Arkansas, 974 F.2d 1006, 1009 (8th Cir. 1992). The

foregoing was also recognized in Paul, in which this Court

paused to consider the ramifications of adopting the therein

petitioner’s broad and expansive application of § 1983 to the

simple defamation claim which he actually stated. Paul refused

to so expand § 1983 claims to cover those claims already

covered by state law. Paul at 698.

Similarly in this case, in a federal lawsuit filed by the

Petitioner arising from identical facts but filed against different

defendants, the Eighth Circuit, in affirming the United States

District Court for the District of Nebraska’s dismissal of Peti-

tioner’s claims, held:

The .. . issuance of the emergency orders which, in

part, mandated that the Bank, its officers, directors

and employees cease and desist from allowing [Peti-

tioner] to act as an unlicensed executive officer, and

[the] continued joint investigation of the Bank after

discovering that the Bank was not in immediate

danger of financial collapse do not constitute “abu-

sive, arbitrary or oppressive government conduct.”

... [The] investigation was authorized by applicable

federal and state law and was proper because an

agency ‘can investigate merely on suspicion that the

law is being violated, or even just because it wants

assurance that it is not.’

Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999).

In the present case, the Petitioner, in addition to his § 1983

claim, made a state law abuse of process claim (Pet. App. 41),

and chose not to allege other state law claims based upon

theories of defamation, malicious prosecution or other related

theories. 42 U.S.C. § 1983, however, was never intended to

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transform these simple state law claims into federal claims for

deprivation of Constitutional rights. The Petitioner cannot state

a § 1983 claim without alleging conduct more outrageous than

simple state law torts.

Finally, to state a claim under 42 U.S.C. § 1983, the

Petitioner must plead a causal relationship between the alleged

governmental action and his alleged injury. See Latimore v.

Widseth, 7 F.3d 709, 716 (8th Cir. 1993). Even assuming the

truth of Petitioner’s allegation that the Individual Respondents

and agents of the Nebraska Department of Banking conspired

to issue the emergency orders, neither those orders nor any

other action of the Individual Respondents commanded Peti-

tioner’s termination from his law firm. Rather, the orders

merely prohibited the Petitioner from acting as an unlicensed

executive officer of the Bank, which he had no legal right to do

in the first place. Hence, the Petitioner has pled no causal

connection between the conduct of the Individual Respondents

and the Petitioner’s alleged injury, and he has not, therefore,

stated a claim pursuant to 42 U.S.C. § 1983. See Gordon v.

Hansen, 168 F.3d 1109 (8th Cir. 1999).

CONCLUSION

For each of the foregoing reasons, the Nebraska Supreme

Court’s decision was appropriate and Petitioner’s Petition for

Writ of Certiorari should be denied.

Respectfully submitted,

RICHARD J. CHAPIN, DARRELL RAUM,

PAT KESLAR and TOM WILLNERD,

Respondents

JosepH K. Meusey #12812

Josern E. Jones #15970

Micuaet J. Mooney #20118

FRASER, STRYKER, VAUGHN, MEUuSEY,

Otson, Borer & Btocn, P.C.

500 Energy Plaza

409 S. 17th Street

Omaha, Nebraska 68102

(402) 341-6000

Their Attorneys