Opposition Brief — Skipper v. Reuter

f a"

No. 93-1070

IN THE SUPREME CoURT| ¥ !

OF THE UNITED STATES| yar 1 4 1994 |

OFFICE OF THE OLERM

OCTOBER TERM, 1993

BOB SKIPPER, SHERIFF OF

MULTNOMAH COUNTY,

Petitioner,

V.

KIM REUTER,

Respondent.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

SANFORD JAY ROSEN

Counsel of Record

THOMAS NOLAN

ROSEN, BIEN & ASARO

155 Montgomery Street, 8th Floor

San Francisco, California 94104

Telephone: (415) 433-6830

SPENCER M. NEAL

GINSBURG & NEAL

500 Yamhill Plaza Building

815 S.W. Second Avenue

Portland, Oregon 97204

Telephone: (501) 221-1792

Attorneys for Respondent

iz

QUESTION PRESENTED FOR REVIEW

May a defendant County official invoke the anti-

injunction provisions of the Norris-LaGuardia Act to deny

a public sector employee the 42 U.S.C. § 1983 remedy of

a "temporary" injunction to maintain the status quo in a

lawsuit challenging a violation of constitutional rights?

PARTIES TO THE PROCEEDINGS BELOW

The Petitioner (Defendant-Appellant in the Ninth

Circuit) is Bob Skipper, in his official capacity as the

elected Sheriff of Multnomah County, Oregon.

The Respondent (Plaintiff-Appellee in the Ninth

Circuit) is Kim Reuter.

tery prey “<

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDINGS BELOW ___. ii

TABLE OF CONTENTS ................. ili

TABLE OF AUTHORITIES ............__. V

OPINIONS BELOW .................... l

a 2

RELEVANT STATUTORY PROVISIONS ..___. 2

STATEMENT OF THECASE .............__. 3

REASONS WHY THE PETITION

SHOULD BE DENIED ................_.. 6

ISG eG ob uo eo tc lv vs vcnece.. 6

I, THE COURT SHOULD DENY THE PETI-

TION BECAUSE THE ISSUE PRESENT-

ED IS NOW MOOT AND HAS BEEN

SS he 7

II.

III.

IV.

CONCLUSION

-iv-

TABLE OF CONTENTS

THE COURT SHOULD DENY THE PETI-

TION BECAUSE THERE IS NO CON-

FLICT AMONG THE CIRCUITS AND

THE CASE RAISES NO IMPORTANT

UNRESOLVED AND RECURRING

QUESTIONS OF FEDERAL LAW .....

THE COURT SHOULD DENY THE PETI-

TION BECAUSE THE NINTH CIRCUIT

DECISION BELOW DOES NOT CON-

FLICT WITH DECISIONS OF THIS

a rere es rere Pee ee

THE COURT SHOULD DENY THE PETI-

TION BECAUSE THE DECISION BELOW

DOES NOT IMPLICATE THE POLICY

FAVORING ARBITRATION, RESPECTS

THE PRINCIPLE THAT SECTION 1983

PLAINTIFFS NEED NOT EXHAUST

OTHER REMEDIES PRIOR TO SUIT,

AND WILL NOT ENCOURAGE OR IN-

CREASE LITIGATION IN FEDERAL

| ae ee wer er ee

Page

TABLE OF AUTHORITIES

CASES

Alexander v. Gardner-Denver,

415 U.S. 36 (1974) .............

Anderson v. Edwards,

505 F.Supp. 1043 (S.D. Ala. oo ae

Bowman v. Township of Pennsauken,

709 F.Supp. 1329 (D.N.J. pee

Brookens v. White,

795 F.2d 178 (D.C. Cir. anita te

Brotherhood of Railroad Trainmen y. Howard,

343 U.S. 768 (1952) .............

C.A. May Marine Supply Company vy.

Brunswick Corporation,

649 F.2d 1049 (5th Cir.),

cert. denied, 454 U.S. 1125 (1981) ....

Casella v. Webb,

883 F.2d 805 (9th Cir. 1989) .......

Certified Grocers of Illinois, Inc. vy. Produce Etc.

Union, Local 703,

816 F.2d 329 (7th Cir. a Se ee

Collins v. Harker Heights, Texas,

504U.S.___, 117 L.Ed.2d 261 (1992) .

15, 24

-Vi-

Cone Corp. v. Hillsborough County,

908 F.2d 908 (11th Cir.),

cert. denied, 498 U.S. 983 (1990) ....... &

Continental Training Services, Inc. v.

Cavazos,

893 F.2d 877 (7th Cir. 1990) .......... 8

Dandridge v. Williams,

ee et) ee 17

Dayton Board of Education v. Brinkman,

433 U.S. 406 (1977) .........0...0..0.5. 17

Denholm v. Houghton Mifflin,

912 F.2d 357 (9th Cir. 1990),

cert. denied, US. ___

115 L.Ed.2d 986 (1991)... .....0.0.0.... 10

Dennis v. Higgins, :

498 U.S. 439 (1991)... 2.02 ee ee 13

Director, Division of Employment Relations v.

Labor Relations Commission,

346 N.E.2d 852 (Mass. 1976) ....... 18, 19

Felder v. Casey,

487 U.S. 131 (1988)... ....0.20.002.... 26

Gilmer v. Interstate/Jahnson Lane,

500 U.S. 20 (1991) .......0.0.0.004.. 25

Golden State Transit Corp. v. Los Angeles,

493 U.S. 103 (1989) .............. 8, 13

-Vii-

Graham v. Brotherhood of Locomotive Firemen &

Enginemen,

338 U.S. 232 (1949)........ 12, 22, 23

Lake Michigan College Federation of Teachers

v. Lake Michigan Community College,

390 F.Supp. 103 (W.D. Mich. 1974),

rev'd on other grounds,

518 F.2d 1091 (6th Cir. re 11, 20

Mitchum v. Foster,

“07 U.S. 225 (1972) ................. 13

Monell v. New York City Dept. of Social

Services,

630 U.S. GB (197TH)... ww 13

Monroe v. Pape,

365 U.S. 167 (1961) ............. 14, 26

New York State Nat. Organization for Women v.

Terry,

886 F.2d 1339 (2nd Cir. 1989),

cert. denied, 495 U.S. 947 pene eee 7

Patsy v. Board of Regents,

457 U.S. 496 (1982)................ 26

Reuter v. Skipper,

4 F.3d 716 (9th Cir. 1993) ...... Passim

Roberts v. College of the Desert,

870 F.2d 1411 (9th Cir. 1988)....... 2 10

Securities and Exchange Comm’n v. First

Financial Group of Texas,

645 F.2d 429 (Sth Cir. 1981) ........ 8

-Viii-

Singleton v. Wulff,

ge Re ere a 11

Smith v. Illinois Bell,

peg ER Ere Cee re ee &

Stacy G v. Pasadena Independent School

District,

695 F.2d 949 (Sth Cir. 1983) .......... )

Syres v. Oil Workers International Union,

SE UG ee eee 22

Textile Workers Union v. Lincoln Mills,

A RE, eee 21, 24

United States v. City of Chicago,

534 F.2d 708 (7th Cir. 1976) .......... 8

United States v. Local 30,

871 F.2d 401 (3rd Cir.),

cert. denied, 493 U.S. 953 (1989) ....... 8

United States v. United Mine Workers,

ER re passim

United States v. W.T. Grant Co.,

rks a a ek eee oO 11

Virginia Railway Co v. System Federation, R.E.D..,

ae 22

Weinstein v. Bradford,

ee a NEE «6 6 S60 014 0 6 ed 448 11

-1X-

STATUTES

28 U.S.C. Section EEE Pe oe te ee 2,9

28 U.S.C. Section 2283 ..:................ 14

Norris-LaGuardia Act,

29 U.S.C. Section, 101 i Passim

42 U.S.C. Section 1983 ; te Nrecw.b ae & 8. 4s Passim

Labor Management Relations Act of 1947,

29 U.S.C. Section 185 .............. 21

LAW REVIEW ARTICLES

Anderson, Strikes and Impasse Resolution in Public

Employment, 67 Mich. L.R. 943 ee 19.

Note, The New Federal Law of Labor Injunctions,

79 Yale L.J. 1593 (1970) ................ 16

. .

=e

No. 93-1070

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1993

BOB SKIPPER, SHERIFF OF

MULTNOMAH COUNTY,

Petitioner,

v.

KIM REUTER,

Respondent.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Ninth Circuit, as amended, is reported as Reuter v.

Skipper, 4 F.3d 716 (9th Cir. 1993), and can also be found

as Appendix A to the Petition for Writ of Certiorari.

The District Court’s February 8, 1993 Order

granting Plaintiff's (Respondent’s) motion for a preliminary

2.

injunction is not reported. A copy of the Order is attached

as Appendix C to the Petition for Writ of Certiorari.

A copy of the Ninth Circuit Court of Appeal’s

October 27, 1993 Order denying the County Sheriff's

Petition for Rehearing and Suggestion of Rehearing En

Banc is attached as Appendix B to the Petition for Writ of

Certiorari.

The District Court’s August 24, 1993 Order,

granting Respondent’s motion for partial summary judg-

ment, is also not reported. A copy of the Order is attached

to this Brief in Opposition in the Appendix at A-1. A copy

of the District Court’s August 24, 1993 unreported opinion

is attached to this Brief in Opposition in the Appendix at

A-2 to A-15. A copy of the District Court’s October 12,

1993 Declaratory Judgment and Permanent Injunction,

enjoining petitioner from enforcing the work rule at issue

in this case is attached to this Brief in Opposition in the

Appendix at A-16 to A-17.

JURISDICTION

Petitioner invokes this Court’s certiorari jurisdiction

under 28 U.S.C. § 1254(1). Respondent does not dispute

the Petition’s timeliness. However, as set forth below,

Respondent contends the issue is both moot and abandoned.

RELEVANT STATUTORY PROVISIONS

Respondent adopts Petitioner’s statement of Relevant

Statutory Provisions.

x

STATEMENT OF THE CASE

Respondent Kim Reuter ("Reuter" or " Respondent")

is currently employed as a corrections officer with the

Multnomah County Sheriff’s Office, a position she has held

for more than seven years. (Ninth Circuit Excerpt of

Record ["ER"] 13).

In the Fall of 1991, Ms. Reuter began dating a man.

During the course of the relationship, Reuter learned that

the man had at one time been an inmate in another state.

(ER 14, 36, 37). Reuter was aware that under the work

rules of the sheriff’s office in effect at that time, she was

required to report her intimate association with any "ex-

inmate" to her supervisors. Reuter did so, at first orally

and then in writing in a report dated October 18, 1991.

(ER 14).

Following her October 1991 report, a member of

the sheriff's office investigated Reuter’s relationship. (ER

14). Reuter was not told to terminate the relationship. She

also was not then subjected to discipline of any kind. (ER

14). She requested that if there was a problem with her

relationship, she be informed in writing to that effect. (ER

14). As no such writing was given to her, Reuter assumed

that-her association with the ex-inmate was not prohibited.

(ER 14).

In October 1992, after the relationship had deepened

in importance, it was once again investigated by the

sheriff's office. (ER 15). On October 20, 1992, Reuter

was summarily suspended with pay from her employment

at the sheriff’s office because of the relationship. (ER 15).

On December 17, 1992, Reuter met with the Facilities

Division Commander, who advised her that, in light of her

intention to continue her relationship, he was going to

recommend that her employment with the Sheriff’s office

-4-

be terminated. (ER 16). He also gave Ms. Reuter the

impression that if she stopped associating with her domestic

partner, he would recommend that she not be terminated.

(ER 16).

Respondent brought suit under 42 U.S.C. § 1983

seeking declarations (1) that her intimate association is

protected by the First Amendment to the United States

Constitution, and (2) that the work rule barring such

associations is constitutionally overbroad. Respondent also

sought a temporary restraining order, a preliminary

injunction, and a permanent injunction restraining defen-

dant from terminating her employment as a correctional

officer. (ER 11).

The district court issued a temporary restraining

order. After a hearing, the district court issued a prelimi-

nary injunction preventing the County from firing Reuter

pending the outcome of her section 1983 action.

The County sheriff appealed, arguing only that the

Norris-LaGuardia Act (sometimes "the Act") divested the

district court of jurisdiction to issue a preliminary injunc-

tion. The sheriff did not argue that the work rule was

constitutional or offer any alternative grounds for his

assertion that a preliminary injunction was inappropriate.

Before the Ninth Circuit, Reuter argued (1) that her

impending termination was not a "labor dispute" under the

Act; (2) that the Act did not apply because the County was

not a “person participating or interested in a labor dispute,"

covered by the Act, 29 U.S.C. §113(b); (3) that the Act

was enacted to address problems between private employers

and their employees and does not apply in the public

employment context; and (4) that 42 U.S.C. § 1983, the

Civil Rights Act of 1871, as amended, which only applies

to persons acting under color of state law, grants to the

A.

district court the power to issue an injunction in order to

protect plaintiff's constitutional rights, a power that must

be accommodated despite Norris-LaGuardia.

On August 27, 1993, the Ninth Circuit sustained the

preliminary injunction, holding that section 1983 injunc-

tions are part of a narrow Category of exceptions to the

Norris-LaGuardia Act’s anti-injunction proscriptions. Pet.

App. at A-10 to A-11; Reuter v. Skipper, 4 F.3d 716, 719-

720 (9th Cir. 1993). In the decision, the panel rejected

Respondent’s first two arguments (that the impending

termination was not a "labor dispute" under the Act and

that the County was not a "person" under the Act).

However, the panel ruled that "Reuter’s section 1983 action

falls into the limited category of statutes exempted from the

anti-injunction provisions of Norris-LaGuardia." Pet. App.

at A-11, 4 F.3d at 720.

Petitioner’s timely Petition for Rehearing/Suggestion

for Rehearing En Banc was denied on October 27, 1993,

with the panel of judges voting to deny it and no active

judge requesting a vote. Pet. App. at B-1.

On August 24, 1993, the district court issued an

order and opinion granting Reuter’s motion for partial

summary judgment. See App. hereto at A-1 to A-15,

infra. On October 12, 1993, the district court dissolved

the preliminary injunction by issuing a declaratory judg-

ment and permanent injunction barring the County from

firing Reuter as a result of her intimate association and

from otherwise enforcing the work rule under which Reuter

had initially been suspended. See App. hereto at A-16 to

A-17, infra.

On September 23, 1993, Petitioner filed a new

appeal, this time from the August 24, 1993 Order. Ms.

Reuter’s brief as appellee in the second appeal is about to

.

be filed in the Court of Appeals. No Notice of Appeal was

filed after or from the October 12, 1993 declaratory judg-

ment and permanent injunction.

REASONS WHY THE PETITION

SHOULD BE DENIED

Introduction

There is no reason for the Court to review the issue

presented here. First, since the preliminary injunction is

no longer in place, and since Petitioner has not appealed

from the October 12, 1993 permanent injunction, or even

raised the Norris-LaGuardia issue in his appeal from the

district court’s August 24, 1993 partial summary judgment

Order, the issue presented in this appeal is now moot and

has been abandoned by Petitioner.

Second, no conflict with any of this Court’s deci-

sions is direct and readily apparent from the Ninth Circuit

rationale or result. Nor is there any conflict between the

Ninth Circuit’s decision and the decisions of any other

circuit. Indeed, the few reported decisions on this subject —

are district court decisions, all of which are in accord with

the Ninth Circuit’s decision here.

Third, this case does not raise an important recur-

ring question of federal law that has not been but ought to

be resolved by this Court. The scant number of reported

decisions demonstrates the extreme rarity of the issue.

Fourth, as shown herein, the issues involved do not

play out in an otherwise significant way. Petitioner

engages an imaginative attempt to invoke the broad anti-

injunction provisions of the Norris-LaGuardia act to deny

certain equitable remedies to public employees who assert

precious constitutional rights against municipalities pursuant

x,»

to 42 U.S.C. § 1983. However, this case is only about the

range of remedies available to such section 1983 litigants

-- Mot about the viability of public sector employees’

section 1983 claims. For that reason, and others discussed

below, the case does not meaningfully implicate the judicial

and social policy favoring the use of binding arbitration to

settle labor disputes. Moreover, there is no exhaustion

requirement in section 1983 cases: imposition of one in

favor of arbitration is not appropriate.

I,

THE COURT SHOULD DENY THE

PETITION BECAUSE THE ISSUE PRE-

SENTED IS NOW MOOT AND HAS

BEEN ABANDONED.

The preliminary injunction challenged in this appeal

is no longer in place. Six weeks after the Ninth Circuit

issued its opinion below, «the preliminary injunction was

dissolved and replaced by a permanent injunction, render-

ing the issue in the current proceeding moot. See District

Court’s October 12, 1993 Order, App. at A-16 to A-17,

infra. Petitioner has not appealed from the permanent

injunction, thus effectively abandoning the issue presented

here.

It is well established that a "temporary" injunction

is merged with an order granting a permanent injunction.

Smith v. Illinois Bell, 270 U.S. 587, 588 (1926); United

States v. City of Chicago, 534 F.2d 708, 711 (7th Cir.

1976). Following such merger any appeal from the

preliminary injunction becomes moot and "appeal is only

proper from the order granting the permanent injunction. "

United States v. Local 30, 871 F.2d 401, 403 (3rd Cir.),

cert. denied, 493 U.S. 953 (1989): New York State Nat’l

)

-8-

Organization for Women v. Terry, 886 F.2d 1339, 1350

(2d Cir. 1989), cert. denied, 495 U.S. 947 (1990) ("the

appealability of the district court’s grant of a preliminary

injunction is moot . . . because the district court subse-

quently granted a permanent injunction."); Cone Corp. v.

Hillsborough County, 908 F.2d 908, 912 n.5 (11th Cir.

1990) (upon entry of a permanent injunction that supersedes

a preliminary injunction, appeal from the preliminary

injunction is properly dismissed); Continental Training

Servs., Inc. v. Cavazos, 893 F.2d 877, 880 (7th Cir. 1990)

(same); Securities and Exchange Comm'n v. First Financial

Group, 645 F.2d 429, 433 (Sth Cir. 1981) (once an order

of permanent injunction is issued, the preliminary injunc-

tion merges with it and appeal may be had only from the

order of permanent injunction).

Ordinarily, since the Norris-LaGuardia Act treats

"temporary" and permanent injunctions identically, the

issues raised in this appeal might have been thoroughly

addressed in an appeal from the permanent injunction.

However, the Petitioner has effectively abandoned the

issues raised here by failing to appeal from the permanent

injunction.

The reasoning of the court in Certified Grocers of

Illinois v. Produce Etc. Union, Local 703, 816 F.2d 329

(7th Cir. 1987), is relevant here:

If we were to vacate the preliminary

injunction, nothing would happen; the per-

manent injunction would remain in force,

beyond this court’s power now that the time

to appeal has expired... .

The parties emphasized, in supple-

mental briefs filed at our request, that these

-9.

two cases [holding that it is proper to dis-

miss appeals from preliminary injunctions

that have merged into permanent injunc-

tions] dealt with simultaneous appeals from

preliminary and permanent injunctions, so

that dismissal of the appeals from the pre-

liminary injunctions left the court with

something to review. True enough, but

irrelevant. The holding of the cases is that

only the permanent injunction matters, once

it has been entered. The preliminary injunc-

tion no longer is the source of obligations;

it cannot be reviewed, because it is gone.

That is so whether or not anyone appeals

from the permanent injunction. If the pre-

liminary injunction is defunct, it is irrelevant

and the appeal from it is not justiciable.

Id. at 330-31.

The possibility that "a ‘merger’ of the preliminary

into the permanent injunction enables the court to consider

the propriety of the permanent injunction without the filing

of a fresh appeal," properly has been rejected on the

ground that such an approach is inconsistent with "the

principle that the notice of appeal must follow rather than

precede the decree complained of." Certified Grocers, 816

F.2d at 331 (citing Fed. R. App. P. 4(a)(1) and United

States v. Hansen, 795 F.2d 35, 37-38 (7th Cir. 1986)). |

There are only limited grounds upon which a party

may assert an exception to this rule. One is that an injunc-

tion bond may keep an appeal alive. See, e.g., Stacy G. v.

Pasadena Ind. Sch. Dist., 695 F.2d 949, 955 (5th Cir.

1983). However, there was no injunction bond in the

instant case.

-10-

Petitioner has abandoned and cannot now raise the

Norris-LaGuardia issue in this appeal. Even assuming that

Petitioner’s pending appeal in the Ninth Circuit will

properly be deemed an appeal from the October 12, 1993

declaratory judgment and permanent injunction Order that

followed Petitioner’s September 22, 1993 Notice of

Appeal, (but see Certified Grocers, supra), the Notice of

Appeal here in no way identifies the Norris-LaGuardia

issue. More significantly, Petitioner's docketing statement,

executed September 29, 1993, identifies only two issues:

1. Whether sheriff’s rule [sic], a basic rule of the

organization, was presumptively valid, and entitled

to rational basis scrutiny.

2. Whether the record shows a rational basis

between [sic] rule and promotion of safety of

persons and property.

Neither issue engages the Norris-LaGuardia Act. Finally,

Petitioner’s opening Brief in the merits appeal, dated

February 7, 1994, also does not in any way raise the

Norris-LaGuardia issue.

Under Ninth Circuit precedent, correctly interpret-

ing Federal Rule of Appellate Procedure Rule 3(c), Re-

spondent has now waived or abandoned the Norris-LaGuar-

dia Act issue. Casella v. Webb, 883 F.2d 805, 807 n.2

(9th Cir. 1989) (issue not addressed by appeals court where

not identified in or reasonably inferred from Notice of

Appeal); see C.A. May Marine Supply Company v. Bruns-

wick Corp., 649 F.2d 1049, 1056 (Sth Cir.), cert. denied,

454 U.S. 1125 (1981)); see also Roberts v. College of the

Desert, 870 F.2d 1411, 1418-19 (9th Cir. 1988); Denholm

v. Houghton Mifflin, 912 F.2d 357, 359 (9th Cir. 1990),

cert. denied, __ U.S. __,, 115 L.Ed.2d 986 (1991);

ats

Brookens v. White, 795 F.2d 178, 180 (D.C. Cir. 1986).

Cf. Singleton v. Wulff, 428 U.S. 106, 120 (1976).

This case does not fall within the exception to the

mootness doctrine that exists where a controversy is

capable of repetition but likely to evade review. That

doctrine oniy applies where there is a "reasonable expecta-

tion that the same complaining party would be subjected to

the same action again." Weinstein v. Bradford, 423 U.S.

147, 149 (1975). The lack of inferior court decisions on

point suggests that disputes like the present one are rare.

In any event, Petitioner has failed to present concrete

evidence that the instant case is likely to be repeated, or

otherwise to carry his obligation of demonstrating that

"there exists some cognizable danger of recurrent violation,

something more than the mere possibility which serves to

keep the case alive." United States v. W.T. Grant Co.,

345 U.S. 629, 633 (1952). See also id. ("{T]he moving

party must satisfy the Court that relief is needed.")

Il.

THE COURT SHOULD DENY THE

PETITION BECAUSE THERE IS NO

CONFLICT AMONG THE CIRCUITS

AND THE CASE RAISES NO IMPOR-

TANT UNRESOLVED AND RECUR-

RING QUESTIONS OF FEDERAL LAW.

There is no conflict among the circuits as to the

issue raised in this case. Indeed, no other circuit court has

considered this issue. The only decisions on point are

district court decisions and all conclude, like the Ninth

Circuit, that the Norris-LaGuardia Act is inapplicable in

public employment section 1983 cases. See Lake Michigan

Coll. Fed. of Teachers v. Lake Michigan Community Coll. ,

-12-

390 F.Supp. 103, 135 (W.D. Mich. 1974) ("The court can

find no evidence that Congress intended to apply the

fourteenth Amendment to the states in every situation

except public employment disputes in which injunctive

relief is appropriate."), rev’d on other grounds, 518 F.2d

1091 (6th Cir. 1975); Anderson v. Edwards, 505 F.Supp.

1043, 1047 (S.D. Ala. 1981) ("the Norris-LaGuardia Act

does not bar this court from entertaining the request which

the firemen have filed to injunctive relief" regarding

limitations on their right to freedom of speech); Bowman v.

Township of Pennsauken, 709 F.Supp. 1329 (D.N.J. 1989)

("the Norris-LaGuardia Act is inapposite" because determi-

nation of federal constitutionai rights not a labor dispute).

The lack of inferior court authority on this issue

also demonstrates the extreme rarity of the circumstances

in which it arises. It is hardly a recurring, important issue

of federal law that has not been but ought to be decided by

this Court. Moreover, as shown below, the Ninth Circuit’s

decision is consistent with this Court’s decisions and will

not disrupt the Norris-LaGuardia Act’s anti-injunction

policies or the national policy favoring arbitration. See,

e.g., Brotherhood of RT v. Howard, 343 U.S. 768, 774

(1951); Graham v. Brotherhood of Locomotive Firemen &

Enginemen, 338 U.S. 232, 239-40 (1949).

iil.

THE COURT SHOULD DENY THE

PETITION BECAUSE THE NINTH

CIRCUIT DECISION BELOW DOES

NOT CONFLICT WITH THE DECI-

SIONS OF THIS COURT.

The Ninth Circuit’s decision is fully consistent with

this Codrt’s previous decisions concerning 42 U.S.C.

TS a eT

-13-

§ 1983, its decisions concerning the Norris-LaGuardia Act,

and its decisions reconciling the Norris-LaGuardia Act with

other legislation.

This Court repeatedly has refused to narrow the

broad scope of 42 U.S.C. § 1983. Dennis v. Higgins, 498

U.S. 439, 443 (1991) ("A broad construction of § 1983 is

compelled by the statutory language, which speaks of

deprivations of ‘any rights, privileges, or immunities

secured by the Constitution and laws.’") (emphasis added

by Dennis Court); Golden State Transit Corp. v. Los

Angeles, 493 U.S. 103, 105 (1989) ("the coverage of

[§ 1983] must be broadly construed"); Monell v. New York

City Dept. of Soc. Serv., 436 U.S. 658, 684 (1978)

(legislative history of § 1983, a remedial statute, should be

""liberally and beneficially construed’") (quoting Rep.

Shellabarger, Cong Globe, 42 Cong, Ist Sess, App. 68

(1871)).

The historical background of section 1983 was

succinctly summarized by this court in Mitchum v. Foster,

407 U.S. 225 (1972):

Section 1983 was originally § 1 of

the Civil Rights Act of 1871. 17 Stat 13.

It was "modeled" on § 2 of the Civil Rights

Act of 1866, 14 stat. 27 and was enacted for

the express purpose of "enforc[ing] the

provisions of the Fourteenth Amendment."

17 Stat. 13. The predecessor of § 1983 was

thus an important part of the basic alteration

in our federal system wrought in the Recon-

struction era through federal legislation and

constitutional amendment. As a result of the

new structure of law that emerged in the

post-Civil War era -- and especially of the

Fourteenth Amendment, which was its

-14-

centerpiece, the role of the Federal Govern-

ment as a guarantor of basic federal rights

against state power was clearly established.

Id. at 238-39 (footnotes and citations omitted). This

background underscores the importance of section 1983 as

an independent source of federal remedies for constitutional

violations. See also Monroe v. Pape, 365 U.S. 167 (1961)

(reviewing legislative history of § 1983).

Mitchum is particularly apposite here, as it ad-

dressed the question of the federal court’s jurisdiction in a

section 1983 action to enjoin state court proceedings despite

the anti-injunction statute, 28 U.S.C. § 2283, which

enforced constitutional principles of state sovereignty

implicated by the Eleventh Amendment. The Court held

that in enacting section 1983:

. . . Congress clearly conceived that it was

altering the relationship between the States

and the Nation with respect to protection of

federally created rights; it was concerned

that state instrumentalities could not protect

those rights; it realized that state officers

might, in fact, be antipathetic to the vindica-

tion of those rights; and it believed that

these failings extended to the state courts.

Id. at 242.

As this Court observed in Mitchum, in adopting

section 1983, Congress “interpose[d] the federal courts

between the States and the people, as guardians of the

people’s federal rights... . In carrying out that purpose,

Congress plainly authorized the federal courts to issue

injunctions in § 1983 actions, by expressly authorizing a

‘suit in equity’ as one of the means of redress." Jd. at 242.

-15-

As the Court more recently recognized, the section 1983

cause of action extends fully to protect the constitutional

rights of public employees within the employment relation-

ship. In Collins v. Harker Heights, Texas, 504 U.S. oe

117 L.Ed.2d 261 (1992), the Court stated:

The employment relationship [ ] is

not of controlling significance.... [A]

logical application of the [Fifth Circuit's]

holding might also bar potentially meritori-

ous claims by employees if, for example,

the city had given an employee a particular-

ly dangerous assignment in retaliation for a

political speech, . . . or hecause of his or

her gender... . The First Amendment, the

Equal Protection and Due Process Clauses

of the Fourteenth Amendment, and other

provisions of the Federal Constitution afford

protection to employees who serve the

government as well as to those who are

served by them, and § 1983 provides a

cause of action for all citizens injured by an

abridgement of those protections.

Id., 117 L.Ed.2d at 269-70 (citations omitted).

The Norris-LaGuardia Act was enacted in 1932,

sixty-one years after the passage of the predecessor to

section 1983 and during the long period when section 1983

lay dormant prior to its revival by this Court in Monroe in

1961. Norris-LaGuardia was passed in response to years

of judicial intervention in labor disputes that was widely

perceived as biased and unfair. See The New Federal Law

of Labor Injunctions, 79 Yale L.J. 1593, 1593-94 (1970).

-16-

Section 2 of the Norris-LaGuardia Act contains a

statement of official policy to be followed "in the interpre-

tation of this Act and in determining the jurisdiction and

authority of the courts of the United States." That policy

is as follows:

Whereas under prevailing economic

conditions, developed with the aid of gov-

ernmental authority for owners of property

to organize in the corporate and other forms

of ownership association, the individual

unorganized worker is commonly helpless to

exercise actual liberty of contract and to

protect his freedom of labor, and thereby to

obtain acceptable terms and conditions of

employment, wherefore, though he should

be free to decline to associate with his

fellows, it is necessary that he have full

freedom of association, self-organization,

and designation of representatives of his

own choosing, to negotiate the terms and

conditions of his employment, and that he

shail be free from interference, restraint, or

coercion of employers of labor, or their

agents, in the designation of such represen-

tatives or in self-organization or in other

concerted activities for the purpose of col-

lective bargaining or other mutual aid or

protection; therefore, the following defini-

tions of, and limitations upon, the jurisdic-

tion and authority of the courts of the United

States are hereby enacted.

29 U.S.C. § 102. This Court has looked to this statement

of policy in determining the scope and application of the

act. See, e.g., United States v. United Mine Workers, 330

U.S. 258, (1947) (sole decision of this Court that has

0%.

directly considered the application of the Norris-LaGuardia

Act to the area of public employment).

In United Mine Workers, the Court reasoned that the

general term "person" as used in the Act could not be

applied to extend the Act to a sovereign government

without express words to that effect in the statute. Jd. at

272. Although the Ninth Circuit below rejected Respond-

ent’s argument that the County, like the federal govern-

ment, is not a "person" under the Norris-LaGuardia Act.

4 F.3d 716, 719-20 (9th Cir. 1993), Pet. App. at A-10

(concluding that the County is a "body politic and corpo-

rate" and therefore falls within the definition of a "person"

under the Act), this issue, as well as the issue of whether

or not this dispute is properly treated as a “labor dispute"

within the meaning of the Norris-LaGuardia Act, might

well have to be revisited if this Court granted the writ of

certiorari. See Dandridge v. Williams, 397 U.S. 471, 475

n.6 (1976) ("The prevailing party may, of course, assert in

a reviewing court any ground in support of his judg-

ment... . It is likewise settled that appellee may, without

taking a cross appeal, urge in support of a decree any

matter, although his argument may involve an attack upon

the reasoning of the lower court."); Dayton Board of

Education v. Brinkman, 433 U.S. 406, 419 (1977).

In any event, this Court’s reasoning in United Mine

Workers remains relevant here because the Court’s exten-

sive review of the history and purpose of the Norris-

LaGuardia Act in fact forces the Ninth Circuit panel’s

ultimate holding that Respondent’s section 1983 action is

excepted from the Act.

In United Mine Workers the Court reasoned that the

purposes section of the Act:

-18-

. . . predicates the purpose of the Act on the

contrast between the position of the “indi-

vidual unorganized worker" and that of the

"owners of property" who have been permit-

ted to “organize in the corporate and other

forms of ownership association,” and on the

consequent helplessness of the worker. . . .

These considerations, on their face, obvious-

ly do not apply to the Government as an

employer and to the relationship between the

Government and its employees.

United Mine Workers, 330 U.S. at 274. Such consider-

ations also do not apply in the context of County govern-

ment employment.

At the time the Norris-LaGuardia Act was passed in

1932, Congress was concerned about the judicial use of

injunctizns to defeat strikes. At the time Congress’

concern was with strikes only in the private sector, as

public employees were generally barred from striking and

were the subject of state regulation. Almost certainly,

therefore, Congress did not envision the application of the

Act in the public employment area.

In Director, Division of Employment Relations v.

Labor Relations Commission, 346 N.E.2d 852 (Mass.

1976), a state "Little Norris-LaGuardia Act" case, the

Supreme Judicial Court of Massachusetts correctly ex-

plained:

basic differences between labor relations in

the private and public sectors. Whereas the

strike has been a protected weapon of pri-

vate-sector employees since the 1930's,

public employees have not had similar artil-

lery . . . a distinction rationalized and

-19-

justified on many grounds. ... Thus, al-

though in the private sector a union’s con-

tractual waiver of its statutory right to strike

may be presumptively tied to the employer’s

acceptance of binding arbitration for resolu-

tion of contractual disputes . . . , no similar

linkage exists in public sector cases.

Id. at 859 (citations and footnotes omitted); see also,

Anderson, "Strikes and Impasse Resolution in Public

Employment," 67 Mich. L.R. 943, 951 (1961) ("[F]ederal

law protects the right to strike in private employment,

while public employment disputes are a matter for state

regulation. ").

The procedural requirements of the Norris-La-

Guardia Act underscore this lack of Congressional intent to

apply the Act to the public sector employment. For

example, section 7 sets forth strict procedural rules for

issuing injunctions in those situations where the Act does

not bar them altogether. That section requires that before

issuing an injunction, a court give notice to "the chief of

those public officials of the county and city within which

the unlawful acts have been threatened or committed

charged with the duty to protect complainant’s property."

29 U.S.C. § 107. The same section requires a finding that

"the public officers charged with the duty to protect

complainants’ property are unable or unwilling to furnish

adequate protection." Jd. Such provisions contemplate a

situation such as a strike or other labor action where

violence is threatened, and do not encompass a situation

where the public officer charged with duty to protect

complainant’s property is also the defendant in the suit.

See United Mine Workers, 330 U.S. at 276 (If the coercive

power of the federal government were ineffective to protect

the property of the government, then an injunction would

Sinemet

-20-

be "meaningless form" since it would have to be enforced

by the same coercive power).

The Court in United Mine Workers, 330 U.S. at

275-276, also looked at the language of §13 (a) and (b) of

the Act, and concluded:

Every one of these qualifications in § 13(a)

and (b) we think relates to an economic role

ordinarily filled by a private individual or

corporation, and not by a sovereign govern-

ment. None of them is at all suggestive of

any part played by the United States in its

relations with its own employees.

Id. at 275-76. After further review of the legislative

history, the Court ultimately decided that "the Norris-

LaGuardia Act did not affect the jurisdiction of the Courts

to issue injunctions when sought by the United States in a

labor dispute with its own employees." /d. at 282.

The Court’s rationales apply equally well in the

local government context. See Lake Michigan College

Federation of Teachers v. Lake Michigan Community

College, 390 F.Supp. 103, 135 (W.D. Mich. 1974)

("Although United Mine Workers applied specifically to the

federal government, many of the same elements of statuto-

ry language and legislative history indicate just as clearly

that the Act was also not intended to extend to public

employment situations on the state and local level.")

Although no other Supreme Court case has ad-

dressed the application of the Norris-LaGuardia Act to the

public employment sector, there are a number of occasions

when the Court has been required to accommodate Norris-

LaGuardia to other statutes.

21.

Of these, Textile Workers Union v. Lincoln Mills,

353 U.S. 448 (1957), is particularly instructive because it

required this Court to accommodate the Norris-LaGuardia

Act with another broad remedial act, the Labor Manage-

ment Relations Act of 1947. Section 301 of the Labor

Management Relations Act of 1947, 29 U.S.C. 185,

amending the National Labor Relations Act, is similar to

42 U.S.C. § 1983 in that both are broad remedial statutes

that allow for both monetary and injunctive relief.

In Lincoln Mills, a union had moved for an injunc-

tion to compel an employer to arbitrate, and the employer

invoked the Norris-LaGuardia Act to block the injunction.

The Court rejected the employer’s interpretation of the

scope of the Norris-LaGuardia Act, reasoning that:

The question remains whether juris-

diction to compel arbitration of grievance

disputes is withdrawn by the Norris-

LaGuardia Act, 47 Stat 70, 29 U.S.C.

§ 101. Section 7 of that Act prescribes stiff

procedural requirements for issuing an

injunction in a labor dispute. The kinds of

acts which had given rise to abuse of power

to enjoin are listed in § 4. The failure to

arbitrate was not part and parcel of the

abuses against which the Act was aimed.

... Though a literal reading might bring

the dispute within the terms of the Act, . . .

we see no justification in policy for restrict-

ing § 301(a) to damage suits, leaving specif-

ic performance of a contract to arbitrate

grievance to the inapposite procedural re-

quirements of that Act. Moreover, we held

in Virginia Railway Co. v. System Federa-

tion, R.E.D. 300 U.S. 515, 81 Led 789, 57

S Ct 592, and in Graham v. Brotherhood of

«2

Locomotive Firemen & E. 338 US 232,

237, 94 L ed 22, 28, 70 S Ct 14, that the

Norris-LaGuardia Act does not deprive

federal courts of jurisdiction to compel

compliance with the mandates of the Rail-

way Labor Act. The mandates there in-

volved concerned racial discrimination. Yet

those decisions were not based on any pecu-

liarities of the Railway Labor Act. We

followed the same course in Syres v. Oil

Workers International Union, 350 U.S. 892,

100 L ed 785, 76 S ct 152, which was

governed by the National Labor Relations

Act. There an injunction was sought against

racial discrimination in application of a

collective bargaining agreement; and we

allowed the injunction to issue.

Id. at 457-458.

These cases suggest that the Ninth Circuit was

entirely correct here in identifying section 1983 actions as

one of “narrow band of labor disputes in which it is

appropriate for a federal court to issue a labor injunction."

Pet. App. at A-10, 4 F.3d at 719. Contrary to Petitioner’s

assertions, this narrow band is not limited to instances

where the Court was encouraging arbitration. Pet. App. at

7-8. This Court has also recognized exceptions in cases

involving racial discrimination. See Brotherhood of R.T.

v. Howard, 343 U.S. 768, 774 (1951) ("the District Court

has jurisdiction and power to issue necessary injunctive

orders notwithstanding the provisions of the Norris-La-

Guardia Act"); Graham v. Brotherhood of Locomotive

Firemen & Enginemen, 338 U.S. 232, 239-40 (1949) ("Nor

does the Norris-LaGuardia Act contain anything to suggest

that it would deprive these Negro firemen of recourse to

equitable relief from illegal discriminatory representation

ee

23.

by which there would be taken from them their seniority

and ultimately their jobs. . . . If, in spite of the Virginian,

Steele and Tunstall Cases (US) all supra, there remains any

illusion that under the Norris-LaGuardia Act the federal

courts are powerless to enforce these rights, we dispel it

now.")

The exception sketched in these cases is also partly

driven by an understanding that application of the Norris-

LaGuardia Act would strip certain remedies from an

otherwise broad remedial scheme without any logical

purpose. The issues at stake on the merits of a section

1983 case are entirely congruent with those at stake in the

race discrimination in employment cases which this Court

repeatedly has acknowledged are excepted from the Norris-

LaGuardia Act. Hence, as the Ninth Circuit correctly

reasoned here, "it would be incongruous to read Norris-

LaGuardia to preclude equitable relief as a remedy avail-

able to the injured party under section 1983 just because

the parties are involved in a labor dispute." Pet. App. at

A-11, 4 F.3d at 720.

-24-

IV.

THE COURT SHOULD DENY THE

PETITION BECAUSE THE DECISION

BELOW DOES NOT IMPLICATE THE

POLICY FAVORING ARBITRATION,

RESPECTS THE PRINCIPLE THAT

SECTION 1983 PLAINTIFFS NEED

NOT EXHAUST OTHER REMEDIES

PRIOR TO SUIT, AND WILL NOT

ENCOURAGE OR INCREASE LITIGA-

TION IN FEDERAL COURTS.

Petitioner argues that, as a result of the Ninth

Circuit’s decision, "labor disputes, including discharges and

discipline, that were formerly handled by grievance

procedures and binding arbitration under labor agreements

will now be decided in federal Courts." Pet. App. at 5.

This is nonsense. This case involves a rarified constitu-

tional dispute that happens to implicate a public employ-

ment relationship, not private-sector labor disputes that are

the subject of national labor policy under statutes like the

National Labor Relations Act and the Railway Labor Act

that favor arbitration. As this Court recently reaffirmed in

Collins v. City of Harker Heights, Texas, 504 U.S. __,

117 L.Ed.2d 261 (1992), the public employment relation-

ship engages constitutionally protected interests that are not

implicated in the private employment relationship. Con-

trary to Petitioner's assertion, therefore, Textile Workers

Union v. Lincoln Mills, 353 U.S. 448 (1957), is inapposite.

Moreover, arbitration cannot be a final process and

remedy in cases like the instant one involving constitutional

rights. See Alexander v. Gardner-Denver, 415 U.S. 36,

59-60 (1974) (holding "that the federal policy favoring

arbitration of labor disputes and the federal policy against

discriminatory employment practices can best be accommo-

liam

-25-

dated by permitting an employee to pursue fully both fully

both his remedy under the grievance arbitration clause of

a collective bargaining agreement and his cause of action

under Title VII.") See also Gilmer v. Interstate/Jahnson

Lane, 500 U.S. 20 (1991) (holding that rationale of

Gardner-Denver line of cases is confined to collective

bargaining area because in those cases “an important

concern was the tension between collective bargaining

representation and individual statutory rights")

Significantly, as well, the collective bargaining

agreement between the County of Multnomah, Oregon and

the Multnomah County Corrections Officers Association

does not purport to waive, or commit to the grievance and

arbitration process, the constitutional rights of Multnomah

County Corrections Officers such as Reuter. In fact, the

agreement explicitly states that employees “shall not waive

or be deprived of any constitutional or civil rights guaran-

teed by the Federal and state Constitutions and Laws

afforded any citizen of the United States." (ER 50).

Even if the collective bargaining agreement between

the County and the Officers Association contained an

express provision ratifying the policy banning intimate

relationships with ex-inmates, union acquiescence to such

a provision would not in any way insulate the County

policy at issue here from judicial scrutiny. Nor would it be

deemed a waiver of an individual employee’s section 1983

rights. See Alexander v. Gardner-Denver Company, 415

U.S. 36, 51 (1974) ("a union may waive certain statutory

rights related to collective activity, such as the right to

strike. .. . Title VII, on the other hand, stands on plainly

different ground; it concerns not majoritarian processes,

but an individual's right to equal employment opportuni-

ties.")

-26-

The irrelevance of the national labor policy favoring

arbitration is made all the more clear by the fact that the

issues Petitioner raises here concern only remedies, not the

right to bring suit under section 1983. A ruling that the

Norris-LaGuardia Act bars federal courts from issuing

"temporary" injunctions in section 1983 cases would not

discourage litigation of damage claims arising in these

cases. Indeed, Petitioner admits that when labor disputes

implicate constitutional rights, public sector employees can

always “obtain equitable relief in the form of reinstatement

and backpay, and damages and attorney fees in actions

under 42 U.S.C. § 1983." See Pet. App. at 6. Hence

application of the Norris-LaGuardia Act here would deny

plaintiffs litigating these cases only a provisional remedy

that preserves the status quo ante during litigation. No

significant reduction in litigation would follow.

Finally, exhaustion of other remedies is not a

precursor to section 1983 actions, rendering the national

policy favoring arbitration all the more irrelevant. Felder

v. Casey, 487 U.S. 131 (1988) (§ 1983 claims for relief

"*exist independent of any other legal or administrative

relief that may be available as a matter of federal or state

law. They are judicially enforceable in the first in-

stance.’") (quoting Burnett v. Grattan, 468 U.S. 42, 50

(1984)) (emphasis added by Felder Court); See also Patsy

v. Board of Regents, 457 U.S. 496, 500 (1982); Monroe v.

Pape, 365 U.S. 167, 183 (1961).

4.

CONCLUSION

For the foregoing reasons, the Court should deny

the Petition for Writ of Certiorari.

Dated: March 14, 1994

Respectfully submitted

* SANFORD JAY ROSEN

THOMAS NOLAN

ROSEN, BIEN & ASARO

155 Montgomery Street, 8th Floor

San Francisco, California 94104

Telephone: (415) 433-6830

SPENCER M. NEAL

GINSBURG & NEAL

500 Yamhill Plaza Building

815 S.W. Second Avenue

Portland, Oregon 97204

Telephone: (501) 221-1792

* Counsel of Record

A-l

[filed August 24, 1993]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KIM REUTER, )

Plaintiff ) Civil No. 92-1622-RE

vs. )

BOB SKIPPER, ) ORDER

Defendant. )

)

REDDEN, Judge:

Plaintiff's Motion for Partial Summary Judgment

(doc. #32) is granted. Defendant’s Response to Motion for

Preliminary Injunction (doc. #11), which the court agreed

to treat as a Motion for Summary Judgment, is denied.

A telephone status conference is set on August 30,

1993 at 1:15 p.m. The court will initiate the call. Please

notify Ingrid Campbell at 326-6389 immediately if anyone

other than Spencer Neal and Steven Nemirow will partici-

pate in the telephone conference.

IT IS SO ORDERED.

_ Dated this 23 day of August, 1993.

_/ James A. Redden

United States District Judge

[filed August 24, 1993]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KIM REUTER, )

Plaintiff ) Civil No. 92-1622-RE

VS. fe

BOB SKIPPER, ) OPINION

)

)

Defendant.

Spencer M. Neal

Ginsburg & Neal

500 Yamhill Plaza Building

815 S.W. Second Avenue

Portland, Oregon 97204

Lisa M. LeSage

Ginsburg & Neal

A-150 Colonial Plaza Building

1049 S.W. Baseline

Hillsboro, Oregon 97123

Attorneys for plaintiff

Laurence Kressel

County Counsel for Multnomah County

Seven J. Nemirow

Assistant County Counsel

P.O. Box 849

Portland, Oregon 97207-0849

Attorneys for defendant

~

REDDEN, Judge:

gs binenies

A-3

PROCEDURAL BACK UND

Plaintiff, Kim Reuter, is a female corrections officer

employed by Multnomah County. She was placed on paid

administrative leave in October 1992 due to her personal

association with a man who once had been confined in a

correctional facility (an "ex-felon"). On December 17,

1992, she was informed by Major Slyter of the Multnomah

County Sheriff's Office, that he would recommend her

termination from County employment because of her

association with the ex-felon. Plaintiff filed this lawsuit

seeking a preliminary injunction to prohibit the county from

firing her. She also sought a temporary restraining order

(TRO) to prevent her firing at Christmas.

On November 24, 1992, this court granted plain-

tiff’s motion for a TRO, restraining defendant, the Multno-

mah County Sheriff, from discharging plaintiff. Defendant

stipulated to expansion of the TRO beyond ten days until

the preliminary injunction hearing. Defendant then filed a

Motion to Dissolve the TRO on January 11, 1993. This

motion was subsumed in the motion for preliminary

injunction.

FACTUAL BACKGROUND

Plaintiff brings this action pursuant to 42 U.S.C.

§ 1983 seeking declarations that (1) her association with the

ex-felon is protected by the first amendment of the United

States Constitution; and (2) that defendant’s work rules are

constitutionally overbroad. Plaintiff also seeks compensato-

ry damages pursuant to 42 U.S.C. § 1983.

The Sheriff's Office has work rules covering its

employees. Those rules were recently amended on Novem-

ber 20, 1992. The amended work rules provide, in part:

A-4

Determining Prohibited Activities:

(2) Presumptive Conflicts of Interest. A prohibited

conflict of interest is presumed to exist where a

member engages in an ongoing and continuous

business, social or non-marital sexual relationship

with another person when:

(b) the other person has been imprisoned for or

convicted of a felony within the past ten years....

(3) If a presumptive conflict of interest is shown to

exist, the burden shall be upon the member to show

their activity or relationship with the other person

is unavoidable and would not endanger safety and

security of Sheriff’s Office operations or facilities,

negatively impact the member’s job performance, or

create an unfavorable public perception of the

Sheriff's Office. :

Sheriff's Work Rules, W.100.110.07, as amended.

In the fall of 1991, plaintiff became involved with

an ex-inmate who was convicted of a felony within the last

ten years. Plaintiff alleges that when she learned of this

person’s status as an "ex-inmate," she orally reported this

relationship to the Sheriff's Office and then filed a written

report dated October 18, 1991. At the time that plaintiff

began her relationship with the ex-felon, the sheriff’s rules

did not make her association with a person who was

convicted of a felony within the past ten years a "presump-

tive conflict of interest."

In October 1992, plaintiff's relationship with the ex-

inmate again became the subject of the Sheriff's Office

A-5

scrutiny and another investigation was undertaken. On

October 20, 1992, plaintiff was suspended from her

employment from the Sheriff’s Office with pay. On

December 17, 1992, plaintiff appeared before Major Slyter,

Facilities Division Commander, who advised her that, in

light of her expressed intention to continue her intimate

association with an ex-felon, he would recommend that she

be terminated from the Sheriff’s Office. Slyter claimed

that plaintiff's association with an ex-felon would create a

potential compromise of the Sheriff’s Office because of

plaintiff's access to confidential records. In a letter dated

Jan. 5, 1993, plaintiff was informed by_John Schweitzer,

Deputy Chief, Corrections Branch, that the allegations that

she had violated the work rules were sustained and that her

employment may be terminated.

Plaintiff alleges that defendant’s conduct violates her

right to associate in an intimate relationship in violation of

the first amendment. Plaintiff also argues that defendant’s

conduct violates her right to privacy under the fourteenth

amendment. Plaintiffs seeks redress for both of these

alleged violations pursuant to 42 U.S.C. § 1983.

Plaintiff files a motion for partial summary judg-

ment on the issue of liability. Defendant files a cross

motion for summary judgment. Plaintiff’s motion is

granted.

STANDARDS

Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). The materiality of a fact is deter-

mined by the substantive law on the issue. T.W. Electrical

A-6

Service, Inc., v. Pacific Electrical Contractors Assoc., 809

F.2d 626, 630 (9th Cir. 1987). The authenticity of a

dispute is determined by whether the evidence is such that

a reasonable jvry could return a verdict for the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

The moving party has the burden of establishing the

absence of a genuine issue of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). If the moving party

shows the absence of a genuine issue of material fact, the

nonmoving party must go beyond the pleadings and identify

facts which show a genuine issue for trial. Id. at 324.

Special rules of construction apply to evaluating

summary judgment motions: (1) all reasonable doubts as

to the existence of genuine issues of material fact should be

resolved against the moving party; and (2) all inferences to

be drawn from the underlying facts must be viewed in the

light most favorable to the nonmoving party. T.W.

Electrical, 809 F.2d at 630.

DISCUSSION

1. Standard of Review

The first issue argued by the parties is the appropri-

ate standard of review to be used by the court for evaluat-

ing defendant’s rule. Defendant argues that it should be

one of "rational basis." In that case defendant must show

that the work rule has at least a "rational connection" to the

promotion of safety of persons and property. See Kelley

v. Johnson, 425 U.S. 238, 247 (1976).

Plaintiff contends that the standard is one of

intermediate scrutiny. Intermediate scrutiny requires that

governmental rules that restrict constitutional behavior

A-7

"need only be tailored in a reasonable manner to serve a

substantial state interest... ." Edenfield v. Fane,

U.S. __, 113. S. Ct. at 1798 (1993). :

I agree with plaintiff that the standard of review in

this case should be one of intermediate scrutiny. I find that

a couple living together as husband and wife constitute a

"family" in today’s society and is therefore entitled to

protection from the state’s intrusions, judged at a higher

level of standard of review. When the state intrudes into

the family unit, its rules must be tailored in a reasonable

manner to serve a substantial state interest. I find that the

state’s professed interest in maintaining the "security" of

the Sheriff’s Office is not tailored in a reasonable manner

to serve that state interest.

2. Rational Relation

Moreover, even assuming that a couple living

together as husband and wife do not qualify as a "family"

and therefore are not entitled to the intermediate level of

review, I find that defendant’s evidence of the rule being

rationally related to issues of public and officer safety and

security is minimal. Defendant has failed to offer suffi-

cient evidence to support his contention that the work rule

of which plaintiff complains is rationally connected to

defendant’s duty of security and safety in its jails.

As noted above, defendant’s first work rule prohib-

ited various relationships outside of the professional context

if they "would jeopardize any investigation, prosecution or

would reflect unfavorably upon the integrity of the mem-

ber, the Sheriff's Office, or Sheriff." Under this rule,

there must be some showing of harm to defendant, either

by compromising an investigation or prosecution, or by

besmirching the reputation of the member or employee.

A-8

Defendant’s current work rule, promulgated Novem-

ber 20, 1992, after plaintiff was disciplined for her off-the-

job association with her domestic partner, has the same

restrictions as the earlier rule quoted above. New guide-

lines, however, are added for determining whether a

relationship is prohibited, as is a set of presumptive

conflicts of interest. The current rule also provides:

W1.100.110.09 Effect of Marriage of Involved

Person The Sheriff recognizes a member’s funda-

mental right to marriage and procreation. Howev-

er, if a member knows or has a reasonable basis to

know their prospective spouse is an involved person

prior to marriage, the member’s subsequent mar-

riage to the involved person shall not, in and of

itself, justify a relationship which otherwise would

constitute a conflict of interest; nor shall the mem-

ber’s marriage to the involved person constitute a

defense to a complaint against the member brought

under this rule.

In Thorne v. City of El Segundo, 726 F.2d 459 (9th

Cir. 1983), the court held that

the City must show that its inquiry into appellant’s

sex life was justified by the legitimate interests of

the police department, that the inquiry was narrowly

tailored to meet those legitimate interests, and that

the department’s use of the information is obtained

about appellant’s sexual history was proper in light

of the state’s interests.

Id. at 469.

The court then held that the City failed to meet its

burden:

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In the absence of any showing that private, off-

duty, personal activities of the type protected by the

constitutional guarantees of privacy and free associ-

ation have an impact upon an appellant’s on-the-job

performance, and of specific policies with narrow

implementing regulations, we hold that reliance on

these private non-job-related considerations by the

state in rejecting an applicant for employment

violates the applicant’s protected constitutional

interests and cannot be upheld under any level of

scrutiny.

Id. at 471. I find this standard appropriate here.

n Fugate v. Phoenix Civil Service Board, 791 F.2d

736 (9th Cir. 1986), the court reiterated the holding in

Thorne, stating that because Thorne’s "private, off-duty

sexual activities were protected, and because the city could

demonstrate no impact upon an applicant’s on-the-job

performance and failed to show specific policies with

narrow implementing regulations, the City’s rejection of

Thorne for employment was impermissible." Id. at 740.

The court then distinguished Thorne because the officers in

Fugate engaged in sexual relations while on the job and the

City of Phoenix demonstrated that the officers’ "job

performance was threatened by obvious conflicts of interest

as well as by the possibility of blackmail." Id. at 741.

Because of these distinctions, the court found that the

protection of the right of privacy found in Thorne did not

apply and the city only had to satisfy the rational basis test

of Kelly v. Johnson, 425 U.S. 238 (1976).

Similarly, in Fleisher vy. City of Signal Hill, 829

F.2d 1491 (9th Cir. 1987), a probationary police officer

engaged in sexual conduct with a 15-year-old girl while

both of them were Explorer Scouts with the police depart-

ment. Id. at 1492. The police officer sued for damages

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pursuant to 42 U.S.C. § 1983 alleging violation of his right

of privacy. Id. The court held that the department did not

violate Fleisher’s right of privacy by terminating him. The

court stated that this conduct was "illegal, [and] inappropri-

ate in an individual who aspired to become an officer on

the Department's police force, and detrimental to the

Department as a whole. The illegality of Fleisher’s

behavior creates a substantial barrier to successfully

asserting a privacy claim... ." Id. at 1498.

I find that plaintiff's situation is factually closer to

Thorne rather than either Fugate or Fleisher. Plaintiff's

intimate association with her domestic partner was only

conducted off-duty and in private. Second, her private,

off-duty sexual activities came to light only because she

had to report them under the challenged work rule. Third,

the Sheriff has made no showing that plaintiff's relationship

with her domestic partner has had any impact on plaintiff's

on-the-job performance, a showing that is required by

Thorne, Fugate and Fleisher. Plaintiff alleges that the

Sheriff has only raised speculative fears that the plaintiff is

now untrustworthy because of her association with an ex-

convict. Defendant’s speculation is insufficient to meet the

burden of proof that the Ninth Circuit has established. I

further note an additional distinguished feature between

plaintiff's case and the facts in Fugate and Fleisher; her

intimate relationship with an ex-convict, even if her is

presently married to another person, is not in any way

prohibited by the laws of the State of Oregon, as were the

relationships in Fleisher and Fugate.

Plaintiff also cites as evidence the statements of two

correctional professionals, Allen Breed and James Harri-

gan. Breed states in his affidavit that he is unaware of any

jurisdiction having a rule as broad as the one at issue here.

It is his opinion that such a rule goes far beyond any

m eer

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reasonable penological purpose and does not relate to the

legitimate demands of the sheriff's office.

Harrigan is the legal counsel for the Sheriff of San

Francisco. Its rules prohibit personal relationships between

inmates and department employees. The rules do not,

however, prohibit its employees from associating with

persons away from the jail simply because those persons

may have once been convicied of committing a crime. He

is also unaware of any other sheriff's department that has

a rule similar to the one at issue here.

Both experts stated that the rule was unworkable

and not reasonably related to the needs of the Sheriff's

Office.

The plaintiff next argues that defendant’s rule also

violates the state constitution which states, “Laws for the

punishment of crime shall be founded on the principles of

reformation, and not of vindictive justice." Art. I, Sec.

15. I agree that terminating plaintiff's employment with

the county simply because she is living with an ex-convict

would continue to punish her domestic partner for a crime

for which he has already paid his debt to society by

penalizing his association with another.

The case relied on by defendant, Kukla v. Village

of Antioch, 647 F. Supp. 799 (N.D. Ill. 1986), is distin-

guishable. There, a small village police department fired

a sergeant and a dispatcher for living together as husband

and wife without actually being married. The rule at issue

there prohibited any socialization between employees of

different ranks. The court found the small town size and

small police force significant. There were only 16 employ-

ees on the entire force. The court held:

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If an Antioch sergeant developed a relationship with

an Antioch patrolman or dispatcher, certain reac-

tions are predictable, among them that other Anti-

och patrolmen or dispatchers would tiptoe lightly

around certain subjects for fear of offending that

sergeant. After all, in Antioch, offending one

sergeant meant offending half of all the sergeants on

the force. Given human nature, a belief that an

intra departmental relationship would negatively

affect the department is more reasonable on a small

force than a large one.

Id. at 810. The court noted that the Chicago police

department would have a much more difficult task in

justifying a discharge of a sergeant and a dispatcher for

their off-duty living arrangements. Id. at 811. The court

also relied upon the previous experience in the police

department which "supported a belief in the likelihood of

negative affects from such a relationship." Id. at 810.

The court required that there be a factual predicate for the

city’s reasonable belief that the relationship would cause

harm.

Kukla can be distinguished as follows: first, in

Kukla, the police force was very small; therefore any

intimate relationships between a sergeant and other officers

would be obvious. In plaintiff's case, her relationship only

came to light because she was required to report it.

Second, in Kukla, the police department had problems in

the past with supervisors dating subordinate officers

because of the unwillingness of other officers to report

mistakes for fear of alienating the sergeants. Here,

defendant has no history of problems caused by a correc-

tions officer living with an ex-convict. Defendant has

produced no evidence that the mere association of an

officer with someone who had once been convicted of a

felony in another state has caused any problems in the

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department. The court in Kukla required a reasonable

basis for the city’s rule. Here, the sheriff's rule lacks a

reasonable basis.

I also find merit in plaintiff's argument regarding

inconsistency with the rules that allow an employee with a

family member in jail to visit and correspond with that

family member "so long as the [employee] complies with

the policies and procedures of the facility or program

governing such conduct." W1.100.110.10.

Defendant’s fear that plaintiff's relationship will

cause her to compromise the safety and security of the jail

is promised on the assumption that her relationship some-

how creates a conflict of interest between her domestic

partner and her official duties. Plaintiff points out that her

domestic partner is not incarcerated so there is no occasion

for a conflict of interest to arise.

Plaintiff relies on the deposition testimony Oo:

Sergeant Miller, an investigator with the Internal Affairs

unit of the Multnomah County Sheriff's Office, and Chief

Deputy Schweitzer, who is in charge of the corrections

branch of the sheriff’s office. Plaintiff argues that based

on the testimony of these two officers that defendant’s real

reason for firing plaintiff was to achieve some consistency

in the sheriff’s discipline of correction officers. Sgt. Miller

testified that there have been three female corrections

officers who were suspended for being in relationships with

ex-inmates. Chief Schweitzer testified that he had no

evidence that the plaintiff's relationship with her domestic

partner had caused any harm to the safety and security of

any county jail facility, or that the relationship had caused

any harm to her performance as a corrections officer, or

that it has caused any harm to the public’s perception of the

Sheriff's Office.

A-14

Chief Schweitzer was questioned about his knowl-

edge of the arrest and conviction of a corrections officer

named Sgt. Asboe for "fraudulently obtaining drugs or

narcotics." The officer was demoted (not fired) because

"the determination was made that reduction in rank would

suffice as a form of discipline in that case." Schweitzer

admitted that there was a “possibility” that Asboe’s convic-

tion made him susceptible to blackmail oz pressure by the

inmates.

Defendant focuses on the fact that Troutdale Police

officers saw plaintiff in her uniform, "kissing and hugging

a known felon in front of a bar just four blocks from the

Troutdale police station." Defendant’s Opposition, p.2

Plaintiff responds that it has not been established that the

public in general knew of the criminal record of plaintiff's

domestic partner. Defendant submits only the affidavit of

Troutdale Police Chief Collier, who claims that plaintiff's

domestic partner is a known felon. Collier fails to state

who knows this fact except his officers, and it is not even

clear from the affidavit that his officers know this fact.

Further, I note that plaintiff is not being disciplined for

public displays of affection.

Defendant next claims that one of his lieutenants,

Lt. Goss, informally interviewed plaintiff and warned her

that this association could jeopardize her career. Plaintiff

responds that the record is undisputed that after the 1991

investigation of her relationship, she was never ordered by

anyone to terminate it. Plaintiff asserts that what defendant

is now claiming to be a breach of security and professional

ethics was insufficient to prompt any formal action from

the Sheriff's Office when investigated in 1991.

tb Sie ir.+

A-15

CONCLUSION

Plaintiff's motion for partial summary judgment on

the issue of liability is granted. I find that plaintiff's

relationship with her domestic partner qualifies as a family

and therefore is entitled to an intermediate standard of

review. Intermediate scrutiny requires that governmental

rules that restrict constitutional behavior be tailored in an

reasonable manner to serve a substantial state interest.

Defendant’s work rule fails to be reasonably tailored to

serve the state’s interest of security and protection of the

jail facility. Moreover, even if defendant’s work rule is

examined under the rational relation standard of review, I

find no rational connection between the rule and the

promotion of safety of persons and property. Defendant’s

motion for summary judgment is denied.

Dated this 23 day of August, 1993.

/ James A. Redder

United States District Judge

4

:

"

3

A-16

[filed October 12, 1993}

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KIM REUTER, )

Plaintiff ) Civil No. 92-1622 RE

VS. )

BOB SKIPPER, ) PERMANENT INJUNCTION

) AND DECLARATORY

)

)

Defendant. JUDGMENT

Plaintiff in the above-entitled action commenced an

action against defendant, the Sheriff of Multnomah County,

and sought monetary and equitable relief against defendant

including a declaration that her constitutional rights have

been violated and a permanent injunction barring the

termination of her employment as a correctional officer

based upon the enforcement of W1.100.110, either in its

original form or as amended on or about November 20,

1992.

After hearing on the parties’ cross-motions for

summary judgment on the issue of liability and after

considering the affidavits submitted with those motions and

the testimony offered by the parties in open court, it

appears to the court that defendant is committing acts, and

is about commit acts as set forth in plaintiff’s complaint,

and will continue to do so unless restrained by order of this

court, and that immediate and irreparable injury will result

to plaintiff as a result of the enforcement of defendant’s

work rule against her.

IT IS GRDERED, ADJUDGED, AND DECREED

that defendant Bob Skipper, Sheriff of Multnomah County,

his successors in office, agents, representatives, employees,

A-17

attorneys, and all other persons in active concert and

participation with them, be and hereby are permanently

enjoined and restrained from in any manner enforcing

against plaintiff W1.100.110 based upon her association

with her domestic partner.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that W1.100.110, either in its original form or

as amended on or about November 20, 1992, is declared to

be violative of the First and Fourteenth Amendments to the

Constitution of the United States and is void to the extent

that said work rule interferes with family relationships of

correctional officers.

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that plaintiff shall be returned immediately to

active duty in her position as a correctional officer without

any loss of seniority, benefits or pay as a result of the

enforcement of W1.100.110 against her.

Plaintiff is entitled to her costs and reasonable

attorney fees incurred in this matter.

The court shall maintain jurisdiction of this case in

order to enforce the injunction issued herein.

DATED this 8 day of October, 1993.

/ James A. Redden

United States District Judge

Presented by:

/ Spencer M. Neal

Of Attorneys for Plaintiff