# Opposition Brief — Skipper v. Reuter

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1017

## Text

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:

A-9

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

A-11

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:

A-12

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

A-13

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1739%3A2. Public record. Not legal advice.