Opposition Brief — Voigt v. Savell

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Supreme Court, U.S.

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APR 18 1996

CLERK

No. 95-1529

In The

Supreme Court of the United States

October Term, 1995

J. BURK VOIGT,

Petitioner,

Vv.

RICHARD D. SAVELL, RONALD J. WOODS,

KARROLD JACKSON, STEPHANIE COLE,

ARTHUR SNOWDEN II, and STATE OF ALASKA

Respondents.

On Petition For Writ of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

FRANK S. KOZIOL

Counsel of Record for Respondents

618 Christensen Drive

Anchorage, Alaska 99501

(907) 258-7706

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QUESTIONS PRESENTED FOR REVIEW

(1) Where the content and circumstances

of the speech are undisputed and where the

Court of Appeals has applied the Pickering

balancing test, has a compelling reason for

granting the petition been shown if petitioner

disagrees with the weight given the free

Speech interest? ,

(2) Does an Alaska resident have

Standing under 42 U.S.C. § 1985(3) to assert

the constitutional rights of non-residents

when the only contact with such non-residents

is to occasionally consider them for hire as

State employees?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

COURT RULE INVOLVED

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT °

I. THE COURT OF APPEALS PROPERLY

APPLIED THE PICKERING

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II. VOIGT DOES NOT HAVE STANDING

UNDER 42 U.S.C. § 1985(3) TO

ASSERT THE CONSTITUTIONAL

RIGHTS OF NON-RESIDENTS OF

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iii

111i

TABLE OF AUTHORITIES

CASES PAGES

Attorney Gen. of New York v. Soto-Lopez,

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Caplin & Drysdale, Chartered v. United States,

Hormel v. Helvering,

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McCarthy v. Philadelphia Civil Serv. Comm’n,

424 U.S. 645 (1976) Lie ho & & «© «© « 4

Mt. Healthy City School Dist. v. Doyle,

Oe lg

Pickering v. Board of Ed. of Tp. H. S. Dist.

403, Zil.,

ea a

Singleton v. Wulff,

United Bldg. and Constr. Trades v. Mayor of

Camden,

i rr CSeGe . oS Ck ttt wl

Waters v. Churchill,

coos Ge Beem £29964) . . . 1 ew ae Ds &

TABLE OF AUTHORITIES - Continued

CONSTITUTIONAL PROVISION PAGES

United States Constitution,

Article III .

United States Constitution,

Equal Protection Clause

STATUTES

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RULES

Supreme Court Rule 10 .... » » 6s «2 l,

OPINIONS BELOW

The tentative decision of the United

States District Court dated January 31, 1994

has not been reported. A copy of that

decision is set forth at Appendix I.

(App. 75-160)

COURT RULE INVOLVED

Respondents have cited to United States

Supreme Court Rule 10. Since this rule is

lengthy, pursuant to Supreme Court Rule

24.1(f), the pertinent text is set forth at

Appendix J. (App. 161-162)

STATEMENT OF THE CASE

The Court of Appeals has accurately and

ably set forth the facts in its decision.

(App. 3-7) A more extensive discussion of the

facts is found in the Pistrict Court’s

Tentative Decision issued on January 31, 1994

and referred to in the District Court’s Final

Decision (App. 27, 75-160)

The Court of Appeals found that J. Burk

Voigt’s (Voigt) criticisms of Judge Richard

Savell’s handling of the two internal

personnel matters was an extension of a

personal dispute with Judge Savell. (App. 11)

Voigt memorialized this earlier dispute in a

memorandum dated January 17, 1991. (App. 3,

163-167)

The Court of Appeals referred to affida-

vits from court employees which set forth the

disruption caused by Voigt’s criticisms.

(App. 13) These affidavits show the harm

caused by Voigt’s comments. (App. 180-196)

Finally, Voigt criticized Judge Savell’s

decision to uphold a grievance filed by an

Alaska resident who complained about Voigt’s

refusal to hire her. (App. 4) Judge Savell

issued a written decision upholding this

grievance. (App. 168-179)

SUMMARY OF ARGUMENT

Voigt’s 42 U.S.C. § 1983 claims were

properly denied because the speech involved

should not be constitutionally protected. The

Court of Appeals correctly applied the

balancing test set forth in Pickering v. Board

of Education, 391 U.S. 563, 568 (1968). Voigt

would balance the interests differently.

However, given that Voigt’s criticisms

involved two internal personnel matters, the

Court of Appeals correctly concluded the

employer’s interests were paramount. Voigt’s

claims of unfair treatment are properly

addressed by State claims in State court.

Voigt cannot show a compelling reason for the

petition for writ of certiorari (Petition) to

be granted.

Voigt’s 42 U.S.C. § 1983 claims were

viewed in the light most favorable to Voigt.

The content and circumstance of Voigt’s speech

were resolved in Voigt’s favor. Any test in

Waters v. Churchill, 114 S. Ct. 1878 (1994)

is, therefore, inapplicable. Even if

applicable, Voigt benefitted by not having the

test applied. Furthermore, Voigt’s assertion

that Waters should apply must be rejected

because it was never raised in the lower

courts.

Voigt’s 42 U.S.C. § 1985(3) claim was

properly denied because Voigt, an Alaska

resident, lacks third-party standing to

advance the constitutional rights of non-

residents of Alaska.

ARGUMENT

: THE COURT OF APPEALS

PROPERLY APPLIED ‘THE

PICKERING BALANCE.

The Court of Appeals applied the

balancing test set forth in Pickering, 391

U.S. at 568 and concluded Voigt’s speech was

not entitled to sconstitutional protection.

(App. 2, 12) Voigt asserts greater weight

should have been given his free speech

interests. (Petition at 8) This is not a

compelling reason to grant his petition. See,

Supreme Court Rule 10.

Voigt’s speech criticizing Judge Savell

involved two personnel decisions. Voigt’s

animosity to Judge Savell predated the

personnel decisions. (App. 3) Voigt’s

criticisms of Judge Savell severely damaged

office harmony and undermined Judge Savell’s

authority. (App. 13) Voigt’s reference to

Judge Jay Hodges’ affidavit is not contrary.

(Petition at 5, 7) Judge Hodges does not

acknowledge he knew of Voigt’s statements nor

does he discuss their impact. (App. 52-56)

The Court of Appeals recognized that

Voigt’s assertions of unfair discrimination

against non-residents and unfair treatment of

job applicants in general touched on a matter

Of public concern. (App. 12) Voigt suggests

more weight should have been given to the

allegation of discrimination because it

involves underlying constitutional issues.

(Petition at 8)

Voigt likely errs as to any underlying

constitutional issue. a state may impose a

bona fide residency requirement as a condition

of public employment. McCarthy Vv.

Philadelphia Civil Serv. Comm’n, 424 U.S. 645,

646-647 (1976), (per curiam). Public

employment is not a fundamental right under

the Equal Protection Clause and the state may

have bona fide residency requirements that are

limited to public employment, services or

funds. United Bldg. and Constr. Trades yv.

Mayor of Camden, 465 U.S. 208, 219 (1984). A

bona fide residency requirement, as opposed to

a durational restriction, does not infringe on

the constitutional right of interstate travel.

Attorney Gen. of New York V. Soto-Lopez, 476

U.S. 898, 904 n.3 (1986).

Given the damage done to the employer’s

interests, the Court of Appeals correctly

concluded Voigt’s speech was not entitled to

constitutional protection.

Respondents prevailed based upon the

District Court’s grant of summary judgment.

(App. 8) The evidence was viewed in the light

most favorable to Voigt. (App. 8)

Thus, any factual dispute about what the

speech was, its tone, or the listeners’

reaction was resolved in Voigt’s favor. The

holding in Waters, 114 s. Ct. at 1884, 1889

(public employer’s reasonable belief that

speech is unprotected permits employer to

punish employee for that speech ) is

inapplicable.

The Waters holding rejected the summary

judgment standard test as giving insufficient

weight to the public employer’s interest in

efficient government decision making. Waters,

114 S. Ct. at 1888. Therefore, contrary to

Voigt’s assertions, Voigt benefitted by the

failure to apply the waters test.

The lower courts never addressed the

question of whether Voigt could prove the

protected speech was a “substantial” or

“motivating” factor in his termination. Nor

was the issve resolved whether the employer

had shown that Voigt would have been fired

even if the protected speech had not occurred.

See, Mt. Healthy City School Dist. v. Doyle,

429 U.S. 274, 287 (1977).

These issues were not addressed because

Voigt’s speech was held not entitled to

federal protection. Voigt was free to pursue

his State claims, including wrongful

termination, in State court. (App. 8)

Voigt’s reliance upon his management

consultant’s affidavit is misplaced and better

cited in State court. (App. 6, 37 n.4)

Voigt alleges his employer failed to

reasonably investigate "matters" prior to his

termination, citing Waters. (App. 1, 9) As

stated above, since there was no dispute as to

Voigt’s speech, Waters is inapplicable. Even

if applicable, Voigt raises this issue for the

first time in his petition. The issue was not

presented and argued to either the District

Court or Court of Appeals.

As a general rule, a federal appellate

court will not consider an issue not passed

upon below. The basis for the rule is that

the parties should have an opportunity to

offer all evidence relevant to the issues so

the litigants will not be surprised on appeal

by a final decision on issues of which they

had no opportunity to present evidence.

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

(citing Hormel v. Helvering, 312 U.S. 552, 556

(1941)). Therefore, this argument should not

be considered.

The Court of Appeals correctly denied

Voigt’s 42 U.S.C. § 1983 claims.

II. VOIGT DOES NOT HAVE

STANDING UNDER

42 U.S.C. § 1985(3) TO

ASSERT THE

CONSTITUTIONAL RIGHTS

OF NON-RESIDENTS OF

ALASKA.

Voigt’s 42 U.S.C. § 1985(3) claim is

based upon the premise that non-residents of

Alaska competing for State public employment

are entitled to special federal protection.

The Court of Appeals never decided this issue.

(App. 21, 24) Rather, the Court of Appeals

found that Voigt lacked third-party standing

to make the claim. (App. 24)

Voigt suggests he has primary or first-

party standing. (Petition at 10-11) However,

Voigt was an Alaska resident at all pertinent

times. (App. 21) Thus, Voigt is not a member

of the class he asserts is entitled to federal

protection. Voigt’s self-characterization as

a "de facto non-resident" is erroneous.

(Petition at 11) There is no factual basis

for his assertion he was perceived to be a

non-resident after residency was obtained.

(Petition at 2)

Voigt has no third-party standing because

he has no special or close relationship to

non-residents of Alaska. Voigt satisfied

Article III’s case-or-controversy requirement,

but failed the "prudential" test. See, Caplin

& Drysdale, Chartered v. United States, 491

U.S. 617, 623 n.3 (1989). (App. 22-24)

The Court of Appeals correctly found

Voigt’s only connection to non-residents is

that he was occasionally in a position to hire

a non-resident for employment with the State

court system. (App. 23) This is not a

sufficiently close relationship to the class

of non-residents to conclude Voigt would be an

effective advocate on their behalf. In fact,

Voigt is a member of the class (Alaska

residents) he seeks to disfavor.

The petition should be denied. The Court

of Appeals properly stated and applied the

correct rule of law to undisputed facts.

CONCLUSION

Voigt’s Petition for Writ of Certiorari

should be denied.

DATED at Anchorage, Alaska, this 12th day

of April, 1996.

FRANK S. KOZIOL

Counsel of Record for

Respondents

618 Christensen Drive

Anchorage, Alaska 99501

(907) 258-7706

No. 95-1529

In The

Supreme Court of the United States

October Term, 1995

J. BURK VOIGT,

Petitioner,

Vv.

RICHARD D. SAVELL, RONALD J. WOODS,

KARROLD JACKSON, STEPHANIE COLE,

ARTHUR SNOWDEN II, and STATE OF ALASKA

Respondents.

On Petition For Writ of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

APPENDIX TO

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

App. 75

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

J. BURK VOIGT,

Plaintiff,

RICHARD D. SAVELL, RONALD J.

WOOD, KARROLD JACKSON,

STEPHANIE J. COLE, ARTHUR

SNOWDEN II, and STATE OF

ALASKA,

Defendants.

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Case No. F92-012 Civil (JKS)

ORDER

(Filed February 2, 1994)

Defendants moved for partial summary

judgment on Plaintiff’s federal retaliatory

discharge claims (Docket No. 87), Plaintiff

filed his objection to the motion (Docket No.

101), and Defendants replied (Docket No. 112).

The parties have not requested oral argument.

Nevertheless, because this motion presents

issues that implicate developing law, the

Court feels that oral argument would be help-

ful to provide a forum in which questions can

be answered and the record clarified as to

troubling points. Therefore, pursuant to

Local Rule 5(C), the Court will hear oral

App. 76

argument on the motion for partial summary

judgment on Monday, March 28, 1994, at 2:00

P.m. in Fairbanks.

In order to aid the parties in preparing

for oral argument, the Court has prepared a

tentative decision regarding Defendants’

motion. The tentative decision discussed

below is not intended to chill or discourage

oral advocacy or inhibit counsel in vigorously

representing their positions. Its purpose is

to focus the parties’ attention on any errors

of fact or law that the Court may be laboring

under and thus provide an opportunity at argu-

ment to correct errors, prepare an accurate

record, and assure that the material facts and

the controlling law are completely developed.

Following oral argument, the Court may modify

or change its tentative decision if it relied

on erroneous factual or legal conclusions.

CASE STATUS

J. Burk Voigt was the Clerk of Trials

Court and Assistant Area Court Administrator

for the Fourth Judicial District of Alaska at

Fairbanks from July 17, 1989, until his

termination on March 26, 1992.} Voigt

* The reasons for Voigt’s discharge were

articulated in a letter of March 24, 1992,

informing Voigt of the intention to dismiss

him effective March 26 at 4:30 P-m. Docket

No. 101, Ex. Q-l1. The reasons included the

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following:

1. engaging in a consistent pattern of

making inappropriate statements to subordinate

employees, resulting in a demoralizing effect

on employees and subjecting the court system

to potential liability; including the

following:

-- statements designed to "torpedo" the

selection of Judith Cramer as Area Court

Administrator;

-- discussing a supervisor’s poor

performance with a subordinate employee

of that supervisor;

-- statements indicating gender bias;

-- expressing dissatisfaction with a

Civil Supervisor with other supervisory

and non-supervisory employees who had no

interest or reason for involvement;

-- prohibiting staff from smoking

together or mingling during office

breaks;

-- removing a supervisor from a

Revisions in Progress committee and

warning her not to disclose or discuss

the removal;

-- referring to civil clerks as “dumb

clerks";

-- placing employees in fear of

retaliatory action after learning that

some might have violated Voigt’s "edict"

forbidding staff from talking to the

presiding judge;

-- ordering employees to “play dumb” in

communicating with the new Area Court

App. 78

has brought an action against each of the

Administrator;

2. misusing court resources for improper

and harmful purposes; for example, ordering

long computer-generated reports for no reason

other than to deny others computer system

access and to assert control over the system;

3. engaging in insubordinate behavior by

openly criticizing the presiding judge’s

decision in the grievance filed by Roberta

Demoski, discouraging employees from

communicating with the presiding judge, and

attempting to undermine the presiding judge’s

action in front of subordinate employees; and

4. engaging in poor personnel and

supervisory practices, such as:

-- discouraging employees from applying

for other jobs within the Clerk’s

Office;

-- creating the appearance of having

preselected applicants;

-- undermining the ability of Demoski to

survive in the work environment of the

Clerk’s Office;

-- creating a work environment in which

employees fear retaliation for

expressing opinions contrary to Voigt’s;

-- violating Personnel Rule 6.05

regarding overtime compensation by

allowing an employee to accumulate

substantial overtime hours’ without

compensation.

SS iS RI eR RCE SS YES

PAE TES IE cr ND TA TAR.

OE de oO LT Nake PRR BA

App. 79

following Defendants in his or her individual

capacity: Judge Richard D. Savell, the

presiding judge of the Fourth Judicial

District at Fairbanks since January 1, 1991;

Ronald J. Woods, the Area Court Administrator

for the Fourth Judicial District since

November 18, 1991; Karrold Jackson, the

Personnel Director for the Alaska Court System

Since June 1, 1983; Stephanie J. Cole, the

Deputy Administrative Director and senior

lawyer on the administrative staff for the

Alaska Court System; Arthur H. Snowden II, the

Administrative Director of the Alaska Court

System since September 9, 1973; and the State

of Alaska.’

Voigt’s Second Amended Complaint at

Docket No. 100 includes both federal and state

law claims. Earlier, this Court dismissed all

claims against the State of Alaska for

damages, and all federal claims against the

remaining Defendants except federal retalia-

tory discharge claims. Docket No. 56. The

Court advised the parties that it will not

consider the state law claims until the

* There is some confusion as to whether

Snowden and Cole are actually parties. See

Docket No. 112, p. 27, 31-32. Voigt’s Second

Amended Complaint does not include Snowden or

Cole under "Parties," but does refer to them

as defendants in Counts XII and XIII. Docket

No. 100. For purposes of this tentative

decision, I will treat them as parties.

App. 80

federal retaliatory discharge claims are

decided. Docket No. 56.

In his federal retaliatory discharge

claims, Voigt alleges that the Defendants

fired him because Voigt openly criticized

Judge Savell’s manner of hiring a new Area

Court Administrator and because Voigt hired a

nonresident applicant for the Court Clerk I

position in the Fairbanks Records Department

instead of a resident applicant. Voigt

contends that the Defendants’ retaliatory

discharge deprived him of his constitutional

right to free speech, violating 42 U.S.C.

§ 1983. Voigt also contends that’ the

Defendants conspired to discriminate against

out-of-state applicants, restricting their

right to travel and violating 42 U.S.C.

§ 1985(3).

The Court has ordered that the issue of

whether or not the federal claims are barred

by the affirmative defense of qualified immu-

nity must be addressed at an early stage,

before significant discovery. Docket Nos. 80,

89. If the issue of qualified immunity is

decided in favor of the Defendants, then the

Court will consider remanding Voigt’s remain-

ing state law claims to the state court. If

the issue is decided in Voigt’s favor, then

discovery will proceed. If the Court deter-

mines that a trial on the federal claims is

necessary, it may decide to consider the state

law claims at the same time (assuming Voigt is

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App. 81

entitled to de novo review). Docket No. 80.

However, the Court discourages any attempt by

the parties to use "marginal federal claims to

bootstrap state claims into federal court."

Id.

DISCUSSION

I. QUALIFIED IMMUNITY GENERALLY

A. Legal Standards

Qualified immunity protects government

officials performing discretionary functions

from liability for civil damages, unless the

official’s conduct violates clearly estab-

lished statutory or constitutional rights of

which a reasonable person would have known.

Camarillo v. McCarthy, 998 F.2d 638, 639 (9th

Cir. 1993) (citing Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). It is presumed that a

defendant official is entitled to qualified

immunity. Elder v. Holloway, 975 F.2d 1388,

1392 (9th Cir. 1991). The immunity given to

the official is immunity from suit, not simply

a defense to liability, and therefore immunity

questions should be resolved at the earliest

possible stage in litigation. Hunter v.

Bryant, 112 S. Ct. 534, 536 (1991). Thus, the

issue of immunity is generally a legal ques-

tion for the court to decide, not the jury.

Id. at 537; Act Up!/Portland v. Bagley, 988

F.2d 868, 873 (9th Cir. 1993).

App. 82

In determining whether or not an official

is entitled to qualified immunity, the Ninth

Circuit has adopted a two-part analysis: (1)

Was the law governing the official’s conduct

clearly established? (2) Under that law,

could a reasonable officer have believed that

his conduct was lawful? Act Up!/Portland, 988

F.2d at 871; Hemphill v. Kincheloe, 987 F.2d

589, 592 (9th Cir. 1993).?

Although these are questions of law, the

plaintiff in a retaliatory discharge action

bears the burden of proving that the right

allegedly violated was clearly established at

the time of the official’s conduct in order to

overcome the presumption that the defendant

official is immune from damages. See

Camarillo, 998 F.2d at 639; Elder, 975 F.2d at

1392; Romero, 931 F.2d at 627. This means

that the plaintiff “must show that the parti-

cular facts of his case support a claim of

clearly established right, and he loses if he

does not come forward with statutory or deci-

* Cf. Romero v. Kitsap County, 931 F.2d

624, 627 (9th Cir. 199%) ("The qualified

immunity test necessita .s three inquiries:

(1) the identification of the specific right

allegedly violated; (2) the determination of

whether that right was SO "clearly

established" as to alert a reasonable officer

to its constitutional parameters; and (3) the

ultimate determination of whether a reasonable

officer could have believed lawful the

particular conduct at issue").

ST CE mR

App. 83

sional law on which the court can find that

the constitutional right allegedly violated

was clearly established." Elder, 975 F.2d at

1393. The law is “clearly established” when

"the contours of the right [are] sufficiently

clear that a reasonable official would under-

stand that what he is doing violates that

right." Camarillo, 998 F.2d at 640 (quoting

Anderson v. Creighton, 483 U.S. 635, 640

(1987)).

If the plaintiff carries this burden,

then the officials must prove that their

conduct was reasonable even though it might

have violated constitutional standards.

Romero, 931 F.2d at 627. The court may assert

its discretionary power to permit limited

discovery to determine if there are genuine

issues of material fact surrounding the

reasonableness of the official’s conduct. Id.

at 628.

B. Waiver

Voigt contends that the Defendants have

waived their qualified immunity defense and

objects to the Court’s assertion of the

defense sua sponte. Docket No. 101, pp. 6-13.

Voigt admits that the Defendants raised the

affirmative defense of qualified immunity

initially in their answers to Voigt’s com-

plaints, but complains that the Defendants did

not pursue the defense in subsequent pleadings

until prompted by the Court’s Order at Docket

App. 84

No. 80. Voigt further contends that the

Defendants’ memorandum at Docket No. 87

inadequately briefs the issue, violating Local

General Rule 5(B)(1)(b). Voigt does note that

the Ninth Circuit permits the defense to be

raised for the first time at summary judgment

in the absence of a showing of prejudice.

Camarillo, 998 F.2d at 639. However, Voigt

contends that he has been "philosophically"

prejudiced by the Court’s prompting of the

Defendants.

The Defendants respond that their motion

for partial summary judgment on the issue of

qualified immunity is still early in the dis-

covery process and that they never intended to

abandon the defense. Docket No. 112. They

argue that Voigt has not demonstrated any

prejudice from the delay in deciding the

issue. The only deposition taken in the case

so far has been the Defendants’ deposition of

Voigt in order to determine the basis for his

free speech claims. Docket No. 112, p. 2.

Furthermore, the Defendants note that contrary

to Voigt’s contention, they did cite to the

seminal case on qualified immunity, Harlow.

The Court has not specifically rejected

Voigt’s waiver contention, but has explained

that a waiver requires an intentional and

voluntary relinquishment of a known right.

Docket No. 89. It is clear that the |

Defendants never intended to waive the defense

of qualified immunity. Furthermore, Voigt

App. 85

suffers no real prejudice; unlike the factual

situation in Camarillo, the Defendants here

asserted their affirmative defense of quali-

fied immunity in their answers to Voigt’s

complaints. Voigt should not be surprised to

find the issue raised at summary judgment.

Thus, case law supports finding that

Defendants have not waived the defense. See,

e.g., Camarillo, 998 F.2d at 639.

C. Availability in a § 1985(3) Action

Voigt contends that public officials are

not entitled to qualified immunity for an

alleged conspiracy under 42 U.S.C. § 1985(3).

Docket No. 101, p. 72. He cites Burrell v.

Board of Trustees of Georgia Military College,

970 F.2d 785, 794 (llth Cir. 1992), cert.

denied, 113 S. Ct. 1814 (1993). In Burrell,

the court explained that because public offi-

cials are not liable in a § 1985(3) action

unless their actions were motivated by “some

racial, or perhaps otherwise class-based,

invidiously discriminatory animus," they

enjoyed additional protection against

§ 1985(3) actions not available to them in

§ 1983 actions. The court opined that denying

officials qualified immunity under section

1985(3) would not threaten "the breathing

space they need for making discretionary

decisions," since invidious discrimination

“has no place in public policy and any actions

by public officials based on such animus

deserve to be chilled." Id. at 794.

App. 86

The Ninth Circuit has not addressed this

issue specifically. However, qualified immu-

nity has been applied where the defendant

attempted to assert a conspiracy claim under

§ 1983 and § 1985. See Hewitt v. Grabicki,

794 F.2d 1373, 1381 & n.5 (9th Cir. 1986). As

discussed below, it certainly is not clearly

established under federal law that nonresident

applicants seeking public employment are a

protected class within the meaning of a

§ 1985(3). If it turns out that they are,

should the officials be liable for damages?

Qualified immunity would preclude plaintiff’s

suit for civil damages, but not plaintiff’s

suit in equity for prospective injunctive

relief. See Wheaton v. Webb-Petett, 931 F.2d

613, 620 (9th Cir. 1991) (noting that section

1983 plaintiff may seek prospective injunctive

relief from state officials who have personal

immunity from damages). In the absence of a

clear holding on the issue by the Supreme

Court, this Court considers the qualified

immunity defense to be available in a

§ 1985(3) action.

II. WAS THE LAW SO CLEARLY ESTABLISHED THAT

A REASONABLE OFFICIAL SHOULD HAVE REALIZED

THAT CONSPIRING TO DISCHARGE VOIGT FOR

REFUSING TO DISCRIMINATE AGAINST NONRESIDENTS

APPLYING FOR PUBLIC EMPLOYMENT WOULD VIOLATE

42 U.S.C. § 1985(3)?

A. Relevant Facts

Voigt’s claim under 42 U.S.C. § 1985(3)

is predicated on his belief that the

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App. 87

Defendants conspired to discharge Voigt

because he refused to follow the Defendants’

allegedly improper policy of discriminating

against nonresident applicants for jobs with

the Alaska Court System. Voigt’s belief stems

from the following facts.

On February 7, 1992, Voigt hired an out-

of-state applicant for the position of Court

Clerk I in the Records Department, Margaret

Crawford/Perron, instead of a court clerk from

Galena, Alaska, Roberta Demoski. Docket No.

101, Ex. H, p. 13; Ex. J-17.* Apparently, in

making his decision, Voigt considered

Personnel Rule 3.09 and Personnel Rule

3.13.02. Id.* He felt that Crawford/Perron,

* Both previously applied unsuccessfully

for the Court Clerk II position in the

Criminal Department. Dana Hoffman/Evans, a

clerk in the Records Department, received the

job.

Personnel Rule 3.09 permits

consideration of an applicant’s education,

experience, record of accomplishment,

knowledge, skill, capacity, intelligence,

character and attributes to the extent such

criteria are relevant to the position. Docket

No. 101, Ex. K, p. 24-25. Personnel Rule

3.13.02 requires that "fajmong equally

qualified applicant’s preference shall be

given to each tenured employee in the

classified service who is competing for a

promotion." Id. (sic) at 26. Voigt notes

App. 88

who had previously worked as a law clerk for

two of the Fairbanks judges, would make sig-

nificant contributions because of her legal

experience and education and first-hand

experience with the court and judges. Docket

No. 101, Ex. E-2. She was also the recom-

mended choice of the Records Supervisor, Jan

Stroffolino, who had listed the top three

candidates-- none of whom was Demoski. Docket

No. 101, Ex. J-15.°

that the Galena clerk was classified as a

range 10 position, while the Fairbanks records

clerk was classified as a range 8 position.

Thus, Voigt concluded that Rule 3.13.02 did

not apply because Demoski was not competing

for a promotion. Docket No. 101, Ex. H,

p. 13.

* Voigt contends that Demoski was not the

best qualified applicant for the Records Clerk

position, citing statements made by Sharon

Hotrum, the Chief Deputy Clerk. Docket No.

101, p. 49. In a recorded interview with

Karrold Jackson, Hotrum stated that although

she initially favored Demoski because she was

an Alaska resident, she conceded that

Demoski’s answers to questions regarding her

abilities were weak. Docket No. 101, Ex. O-6,

pp. 9-10. However, Voigt appears to take

Hotrum’s statements out of context. Hotrum

was never involved with the interview process

for the Records Clerk I position; she only

interviewed applicants for the Criminal Clerk

II position. Docket No. 101, Ex. O-6, p. 5.

Consequently, her opinion did not address

App. 89

Demoski filed a grievance following

Voigt’s decision, and on February 25, 1992,

Defendant Judge Savell issued a decision

concluding that her grievance was valid. He

found that Voigt relied upon improper

criteria, applied impermissible factors and

ignored Personal [sic] Rule 3.13.02. Docket

No. 101, Ex. E-5, p. 6.’ He ordered that

Demoski be transferred to the Fairbanks

Clerk’s Office for the first available

position for which she was qualified. Id.

Pending the grievance decision, on

February 13, 1992, Defendant Snowden ordered

Defendant Jackson to conduct an investigation

into the recent hirings at the Fairbanks

Clerk’s Office. Snowden addressed four major

concerns, one of which was whether or not

“appropriate deference” was given to "in-house

applicants." Docket No. 101, Ex. J-19. The

affidavits of Judge Hodges, Crawford/Perron,

and Voigt all state that Defendant Woods dis-

cussed the Demoski grievance with Snowden and

requested that Snowden put in writing any

whether or not Demoski was the better

qualified applicant for the records clerk

position.

” Judge Savell also found that Voigt’s

statements regarding the hiring of the

Fairbanks records clerk (Hoffman/Evans) for

the Court Clerk II position in the Criminal

department suggested that an improper

preselection had occurred. Id. [sic] at 4-5.

App. 90

policy of not hiring applicants from out-of-

state, and that Snowden responded that he

could not put the policy in writing because it

would be illegal. Docket No. 101, Ex. F, G,

and H.

In her investigation, Jackson conducted

recorded interviews with various employees of

the Clerk’s Office during March 1992." Voigt

cites passages from Jackson’s interviews with

Woods on March 4-5, 1992, revealing that

Jackson warned the unsuspecting Woods that

there was strong resistance to hiring non-

residents;’ Jackson reminded Woods of

®* voigt refers to the affidavit of John

Taylor, an associate professor of management

at UAF, who opines that these interviews

reveal the existence of a conspiracy to

discharge Voigt in retaliation for his refusal

to hire only Alaskans. Docket No. 101, p. 36;

Docket No. 101, Ex. I-l, pp. 5-8. In Judge

Fitzgerald’s order of July 17, 1992, denying

Voigt’s motion for a preliminary injunction,

Judge Fitzgerald refused to give much weight

to Taylor’s testimony because the professor

had insufficient information upon which to

base an opinion. Docket No. 24. However, in

his affidavit of August 23, 1993, Taylor

states that he has since been supplied with a

substantial volume of new materials detailing

the events that took place. Docket No. 101,

Ex. I-l, p. 2.

° However, as the Defendants point out,

Jackson also noted that she personally did not

App. 91

Defendant Cole’s instruction to avoid

selecting from outside Alaska; Woods had

failed to understand the ruckus that could

result from hiring out-of-state; Jackson

warned that Woods must take full control to

assure Voigt changed his behavior or Woods

could lose his job. Docket No. 101, Ex. 0-4,

pp. 42-47; Ex. O-5, pp. 22-27.

Voigt contends that Judge Savell was part

of the Snowden-Jackson-Cole conspiracy to

unlawfully discharge Voigt, citing Jackson’s

telephonic interview with Accounting

Supervisor, Shirley Nash, on March ll, 1992.

In that interview, Jackson states that she has

spoken with Judge Savell several times and

feels that he is very interested in helping

the disgruntled employees of the Clerk’s

Office. Docket No. 101, Ex. O-22, p. 24.

Voigt also cites Judge Savell’s memorandum to

court employees on March 12, 1992, inviting

their comments on a new filing system; the

employees were instructed to ignore the chain

of command and submit comments directly to the

judge by March 24; the submissions could be

anonymous. Docket No. 101, Ex. N-1.5. Voigt

argues that the invitation for comments on the

filing system was a pretense for soliciting

negative comments about Voigt. Docket No.

101, p. 44-45.

advocate Alaska-hire. Docket No. 101, Ex. O-

4, p. 45.

App. 92

On March 24, 1993, Woods and Savell

issued to Voigt their intent to dismiss

letter, effective March 26 at 4:30 p.m.

Docket No. 101, Ex. Q-1. Among other things,

the letter referred to Voigt’s criticism of

Judge Savell’s decision on the Demoski

grievance. See footnote l, supra. Voigt

received a final notice of dismissal on

March 27, 1992, following a pretermination

hearing. Docket No. 101, Ex. Q-3.

B. Legal Discussion

= Preclusion by Qualified

Immunity

To establish a violation of 42 C8 .¢.

§ 1985(3), the Plaintiff must prove the

following elements: "(1) a conspiracy; (2)

for the purpose of depriving, either directly

or indirectly, any person or class of persons

of the equal protection of the laws, or of

equal privileges and immunities under the

laws; and (3) an act in furtherance of the

conspiracy; (4) whereby a person is either

injured in his person or property or deprived

of any right or privilege of a citizen of the

United States." United Bhd. of Carpenters and

Joiners of America v. Scott, 463 U.S. 825,

828-29 (1983). To determine whether or not

qualified immunity precludes Voigt’s § 1985(3)

Claim, the Court must determine whether or not

the law was sufficiently clear that a reason-

able official would know that conspiring to

discharge Voigt for refusing to follow an

Po es

App. 93

implied policy of discriminating against

nonresidents applying for public employment

would violate the second element of § 1985(3).

a. unlawful discrimination

The second element of § 1985(3) requires

"some racial, or perhaps otherwise class-

based, invidiously discriminatory animus

behind the conspirators’ action." Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971). If the

phrase "perhaps otherwise class-based" is to

be extended beyond race, it “unquestionably

connotes something more than a group of

individuals who share a desire to engage in

conduct that the § 1985(3) defendant dis-

favors.” Bray, 113 S. Ct. at 759. In Scott,

the Supreme Court analyzed the legislative

history of § 1985(3) and concluded that "it is

a close question whether § 1985(3) was

intended to reach any class-based animus other

than animus against Negroes and those who

championed their cause, most notably

Republicans." 463 U.S. at 836. However, the

Court determined that § 1985(3) could not, in

any event, be construed to reach conspiracies

"motivated by economic or commercial animus,"

such as conspiracies against nonunion

employees. Id. at 838. More recently, the

Court held that discriminating against

antiabortionists “is not the stuff out of

which a § 1985(3) ‘invidiously discriminatory

animus’ is created." Bray, 113 S. Ct. at 762.

App. 94

In the Ninth Circuit, § 1985(3) is

extended beyond race if the courts have desig-

nated the class in question as a suspect or

quasi-suspect classification or if Congress

has indicated through legislation that the

class requires special protection. Sever v.

Alaska Pulp Corp., 978 F.2d 1529 (9th Cir.

1992) (citing Schultz v. Sundberg, 759 F.2d

714, 718 (9th Cir. 1985)); See also Canlis v.

San Joaquin Sheriff’s Posse Comitatus, 641

F.2d 711, 720 (9th Cir.), cert. denied, 454

U.S. 967 (1981) ("§ 1985(3) applies only to

groups that require and warrant’ special

federal assistance in protecting their civil

rights").

Voigt contends’ that discriminating

against nonresident applicants is the type of

invidious discrimination that violates

§ 1985(3). He cites Hicklin v. Orbeck, 437

U.S. 518 (1978), which held that the Alaska

"local hire" statute requiring all pipeline-

related contracts source of evil to justify a

flat employment preference. Id. at 527. That

case, however, does not imply that non-

residents are a suspect or quasi-suspect class

protected from discrimination under § 1985 (3).

As the Defendants point out, the discrimina-

tion against nonresidents for Alaska jobs is

motivated by economic concerns (3..@., to

employ more Alaskans), which does not violate

§ 1985(3) under Scott.

App. 95

It is doubtful that discriminating

against non-residents for public employment

would violate the Privileges and Immunities

Clause.’® The Supreme Court does hold that the

"pursuit of a common calling" is a fundamental

privilege under the Clause. Camden, 465 U.S.

208, 219 (1984) (citing Baldwin v. Montana

Fish and Game Comm’n, 436 U.S. 371, 387

(1978)). However, that privilege appears

limited to private employment. The Ninth

Circuit implies that the law is unsettled as

to whether or not public employment is a

fundamental privilege under the Clause.

International Org. of Masters, Mates & Pilots

v. Andrews, 831 F.2d 843, 856 (9th Cir. 1987),

cert. denied, 485 U.S. 962 (1988) (citing

Camden, 465 U.S. at 219-20). However, the

Supreme Court has clearly stated that the test

for constitutionality is whether the discrimi-

nation by the state or city would in any way

bias the employment decisions of private

°° “Application of the Privileges and

Immunities Clause to a particular instance of

discrimination against out-of-state residents

entails a two-step inquiry." United Bldg. and

Constr. Trades Council v. City of Camden, 465

U.S. 208, 218 (1984). First, the court must

decide whether the discrimination burdens a

privilege or immunity protected by the Clause.

If so, then the second inquiry is to determine

whether there are substantial reasons for the

discrimination and whether the degree of

discrimination bears a close relation to such

reasons. Id. at 218, 222.

App. 96

employers (such as contractors or _ sub-

contractors) against out-of-state residents.

Camden, 465 U.S. at 221. In Hicklin and in

Camden, the discrimination affected private

contractors working on public projects. In

the present case, the discrimination against

nonresidents applying for employment with the

Alaska Court System would not have any direct

or indirect effect on private employers within

the state.”

As far as potentially violating the right

to travel, protected by the Equal Protection

Clause, it is well-settled that while a state

cannot condition public benefits or political

rights on a term of residency, states may con-

dition nonessential benefits and rights on a

term of residency. See Andrews, 831 F.2d at

846 (citing Supreme Court cases). There is no

fundamental right to government employment for

‘* In an analogous context, the state, as

an employer, is acting as a market

participant. In dormant Commerce Clause

cases, the Ninth Circuit has afforded states

broader power to affect private employment and

to discriminate against out-of-state entities

when states act as market participants rather

than as market regulators. See, e@.g.,

Associated Builders and Contractors, Inc. v.

City of Seward, 966 F.2d 492 (9th Cir. 1992),

cert. denied, 113 S. Ct. 1577 (1993); Big

Country Foods, Inc. v. Board of Educ. of the

Anchorage Sch. Dist., 952 F.2d 1173 (9th Cir.

19923;

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App. 97

purposes of the Equal Protection Clause.

Camden, 465 U.S. at 219. Thus, a state may

condition applications for public employment

on a bona fide residency requirement. See

McCarthy v. Philadelphia Civil Service Comm‘n,

424 U.S. 645, 646-47 (1976) (per curiam)

(upholding requirement of municipal residency

for municipal employees). Furthermore,

favoring resident applications is "rationally

related" to the goal of attracting Alaskans to

work for the state’s court system. See

Andrews, 831 F.2d at 847 (upholding Alaska

statute that provided for cost of living wage

differentials between state marine highway

system’s resident and nonresident employees).

Thus, under the law as it stood in 1992,

it was not clearly established that conspiring

against nonresident applicants for public

employment would violate § 1985(3), the

Privileges and Immunities Clause, or the Equal

Protection Clause. Consequently, it appears

that qualified immunity precludes Voigt’s

Claims relating to discrimination against

nonresidents and the infringement of a non-

resident’s right to travel.

b. standing to assert unlawful

discrimination

Even if the Court were to determine that

the law clearly protects nonresidents under

§ 1985(3), Voigt, a resident of Alaska, lacks

standing to assert his discrimination claims.

The Court has already noted Voigt’s potential

ON EOL

App. 98

lack of standing in its Order at Docket No.

89, citing Briley v. California, 564 F.2d 849,

858-59 (9th Cir. 1977), and Canlis, 641 F.2d

at 718-21.

Voigt argues that Briley does not stand

for the proposition that a plaintiff must be

a member of a class discriminated against to

assert claims under § 1985(3). Docket No.

101, pp. 59-65. Rather, he argues that the

statute itself states that defendants may not

discriminate against “any person or class of

persons." 42 U.S.C. § 1985(3) (underlining

added). Voigt contends that the statute and

Briley articulate an "either/or" situation.

Voigt further contends that both the Court and

the Ninth Circuit in Canlis misinterpreted the

statute and Briley.'? He cites to a number of

decisions from other circuits allowing non-

members of the class to assert § 1985(3)

claims on behalf of the class.

Those decisions, however, preceded Caplin

& Drysdale v. United States, 491 U.S. 617

(1989). In Caplin & Drysdale, the law firm

‘2 Note that the Ninth Circuit in Canlis

stated as follows: "The law in this circuit

is clear: the plaintiff must be a member of

the class discriminated against to claim the

benefits of § 1985(3)." Canlis, 641 F.2d at

721. This Court cannot ignore decisions of

the Ninth Circuit regardless of its opinions

concerning the Court of Appeals’ reasoning.

App. 99

representing a criminal defendant charged with

engaging in a continuing criminal enterprise

challenged the forfeiture of defendant’s

assets used to retain the law firm, arguing

that the forfeiture statute infringed on the

criminal defendant’s Sixth Amendment right to

counsel of choice and violated the Due Process

Clause of the Fifth Amendment. On the stand-

ing issue, the Court stated the following

test:

When a person or entity seeks

standing to advance the consti-

tutional rights of others, we ask

two questions: first, has the

litigant suffered some injury in

fact, adequate to satisfy Article

III’s case-or-controversy require-

ment; and second, do prudential

considerations which we have iden-

tified in our prior cases point to

permitting the litigant to advance

the claim? ...

The second inquiry-- the

prudential one-- is more difficult.

To answer this question, our cases

have looked at three factors: the

relationship of the litigant to the

person whose rights are being

asserted; the ability of the person

to advance his own rights; and the

impact of the litigation on third-

party interests.

Id., 491 U.S. at 623 n.3 (1989). The Caplin

& Drysdale test was applied by the Supreme

Court recently in a right-to-travel case,

Nordlinger v. Hahn, 112 S. Ct. 2326, 2332

(1992). In Nordlinger, a California homeowner

App. 100

and resident challenged the state’s exemptions

for transfers of property by owners over 55

and for transfers between parents and children

from tax reassessments, alleging that the

exemptions violated the right-to-travel

because they made classifications directly on

the basis of California residency. The Court

found that the petitioner did not have stand-

ing to assert the constitutional claim because

She did not identify any obstacle preventing

nonresidents from asserting claims on their

own behalf and did not show any special rela-

tionship with nonresidents whose rights she

wished to assert. Id. at 2332 (citing Caplin

& Drysdale, 491 U.S. at 623 n.3).

In this case, Voigt is not arguing that

his own right-to-travel as a nonresident is

restricted;** rather, he argues that because

the state restricts others’ rights to travel

by discriminating against nonresident appli-

cations, the state denies Voigt employment

unless he agrees to discriminate against

nonresidents, too. Therefore, he would argue,

if non- residents are deserving of protection

under § 1985(3), Voigt should be able to

assert a claim under § 1985(3) because his

injury is associated with the nonresidents’

plight. This assertion may show an injury

that could satisfy the first prong of the

‘Indeed, it is instructive that Voigt

was a "non-resident" at the time he was hired

as Clerk of Court for Fairbanks.

App. 101

Caplin & Drysdale test. However, Voigt cannot

assert others’ rights-to-travel because

Voigt’s situation does not satisfy the second

inguiry under Caplin & Drysdale. See

Nordlinger, 112 S. Ct. at 2332. In light of

Caplin & Drysdale, Voigt lacks standing to

assert the § 1985(3) claim.

2. Lack of “Conspiracy” Precludes Claim

a. intra-corporate conspiracy

doctrine

Defendants contend that Voigt’s con-

spiracy claim under § 1985(3) is barred by the

“intra-corporate conspiracy doctrine," which

holds that managers of a corporation jointly

pursuing its lawful business do not become

“conspirators” under § 1985(3) when acts

within the scope of their employment are said

to be discriminatory or retaliatory.

Defendants cite Travis v. Gary Community

Mental Health Ctr., Inc., 921 F.2d 108 (7th

Cir. 1990), cert. denied, 112 S. Ct. 60

(1991).

In Travis, the plaintiff sued three

senior executives of a mental health center

under § 1985(2) after she was fired following

her testimony on behalf of an employee that

was suing the Center for vacation, sick, and

holiday pay. It was unclear from the facts

whether the Center was a private or public

employer. The court cited an earlier Seventh

Circuit decision, Dombrowski v. Dowling, 459

App. 102

F.2d 190, 196 (7th Cir. 1972) (Stevens, J.),

which held that a discriminatory business

decision by two or more executives of the same

firm did not constitute a conspiracy within

the meaning of § 1985(2). In reexamining the

issue, the Travis court noted two rhetorical

questions that framed the dispute:

(1) Why should action by a single

employer be covered by § 1985 just

because discussions among’ the

firm's multiple agents precede

decision? (2) Why should decisions

taken by a plurality of actors be

immune from check under § 1985 just

because they take the trouble to

incorporate?

Id. at 109. The Travis court then looked to

the function of a § 1985 and determined that

"Congress was concerned not about unilateral

action but about organized, almost society-

wide resistance to emancipation and civil

rights." Id. at 110. Consequently, the court

Supported the Dombrowski decision.

The Seventh Circuit recently reaffirmed

the Travis decision in Hartman v. Board of

Trustees of Community College Dist. No. 508,

Cook County, Illinois, 4 F.3d 465 (7a Cir.

1993). In Hartman, the plaintiff sued the

Board of Trustees of a public institution

under § 1985(3) after certain trustees

directed her not to send a special student

recruitment program into Latino communities.

In dismissing the § 1985(3) claim under the

App. 103

intra-corporate conspiracy doctrine, the court

noted that the doctrine would not apply if the

defendants are shown to have been motivated

solely by personal bias. If the interests of

the corporation played no part in the collect-

ive action, then the action was not taken

within the scope of employment. Id. at 470.

Also, the doctrine may not apply if it is

shown that the conspiracy was part of some

broader, extensive discriminatory pattern that

permeated the ranks of the public institu-

tion’s employees. Id. at 470-71.

While the intracorporate conspiracy

doctrine may be well-established in other

circuits, the Ninth Circuit Court of Appeals

has not squarely addressed whether it applies

in § 1985 cases. See Portman v. County of

Santa Clara, 995 F.2d 898, 910 (9th Cir. 1993)

{noting the massive split on the issue in

other circuits, but refusing to decide the

issue without briefing by the parties); Padway

v. Palches, 665 F.2d 965, 969 (9th Cir. 1982)

(expressly reserving the issue). Two district

courts in the Ninth Circuit, however, have

squarely addressed the issue and have con-

cluded that the doctrine should not apply to

conspiracies within a single governmental

entity. See, e.g., Diem v. City and County of

San Francisco, 686 F. Supp. 806, 810 (N.D.

Cal. 1988); Rebel Van Lines v. City of

Compton, 663 F. Supp. 786, 790-93 (C.D. Cal.

1987).

App. 104

The district court in Rebel van Lines

noted that the Ninth Circuit had decided

several cases involving § 1985 allegations

against executives of a single corporation and

had never dismissed the claims on the ground

that they did not state a conspiracy. Con-

sequently, the court felt the Seventh

Circuit’s Dombrowski decision "is of doubtful

vitality in this circuit." Id. at 791. The

district court opined that "there is no reason

to believe that discrimination by an indivi-

dual business is less harmful than discrimina-

tion by multiple businesses, or that discrimi-

nation by a single business deserves to be

protected because it confers any benefit on

society [citation omitted]. Conspirators

should not be able to avoid the civil rights

laws merely by incorporating before they

commit their discriminatory acts." Id. at

792. The district court went on to hold that

even if Dombrowski was good law as applied to

private business, the doctrine could not apply

to conspiracies within governmental entities,

for to do so would immunize official policies

of discrimination, contravening the law as it

now exists."

‘* The court cited Monell v. Department

of Social Servs., 436 U.S. 658, 690-91 (1978),

which held that a municipality could be liable

under § 1983 if the injury was the result of

a custom or policy of the municipality. The

court reasoned that if the intracorporate

conspiracy doctrine applied to conspiracies

App. 105

The Rebel Van Lines opinion appears well-

reasoned. Even if the Ninth Circuit has not

ruled specifically on the issue, it appears

that it has impliedly refused to apply the

doctrine to conspiracies within a governmental

entity. See, e.g., Usher v. City of Los

Angeles, 828 F.2d 556, 561 (9th Cir. 1987).

In Usher, the plaintiff, a minority employee

of the Los Angeles Police Department, was

arrested when police responded to a complaint

that he had broken a window in his apartment.

He was taken to the police station where he

remained handcuffed for two hours, was denied

toilet access, was physically abused by the

police officers without justification, and was

subjected to racial slurs. The Ninth Circuit

held that Usher "has adequately pleaded causes

of action under 42 U.S.C. § 1985(2) and (3)"

and reversed the district court’s dismissal of

Usher’s claims. The court did not mention the

intracorporate conspiracy doctrine.

In light of the district court opinions

in the Ninth Circuit and the Ninth Circuit’s

refusal to dismiss the § 1985 claims in Usher,

this Court will not dismiss Voigt’s § 1985(3)

Claim solely on the basis of the intra-

corporate conspiracy doctrine.

within governmental entities, why restrict it

to conspiracies alleged under § 1985 and not

under § 1983 as well? Rebel Van Lines, 663 F.

Supp. at 793 n.14.

App. 106

b. absence of facts revealing a

conspiracy

While Voigt’s § 1985(3) claim may not be

dismissed under the intracorporate conspiracy

doctrine, it may be dismissed for failure to

offer a preponderance of evidence revealing

the existence of a conspiracy.'* As noted

above, one of the elements that the plaintiff

must show in establishing the defendants’

violation of § 1985(3) is the existence of a

conspiracy. Scott, 463 U.S. at 828.

Generally, a civil conspiracy is a combination

or agreement of two or more persons’ to

accomplish some unlawful purpose or to

accomplish some lawful purpose’ through

unlawful means. In a § 1985(3) action, the

conscious objective of the agreement must be

to accomplish the second element: "depriving,

either directly or indirectly, any person or

class of persons of the equal protection of

the laws, or of equal privileges and immuni-

ties under the laws." Id.; See Bray, 113

*° As the Supreme Court clarified in

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

(1986), "the inquiry involved in a ruling on

a motion for summary judgment or for a

directed verdict necessarily implicates the

substantive evidentiary standard of proof that

would apply at trial on the merits." Td. at

232. In Voigt’s case then, the Court must

determine whether reasonable jurors could find

by a preponderance of the evidence that Voigt

is entitled to a verdict.

App. 107

S. Ct. at 762-63 (conscious objective of

conspiracy must be impairment of

constitutionally-protected right).

To show that each defendant participated

in such a conspiracy, the plaintiff must dem-

onstrate that each defendant tacitly agreed to

share the common objective of the conspiracy;

however, the plaintiff does not need to show

that each defendant knew the exact details of

the plan. United Steelworkers of America v.

Phelps Dodge Corp., 865 F.2d 1539, 1540-41

(9th Cir.), cert. denied, 493 U.S. 809 (1989);

Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.

1983). When the plaintiff has the burden of

proof on an issue, the defendant may move for

summary judgment simply by pointing to the

absence of facts to support plaintiff’s claim.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). To avoid summary judgment, the non-

moving plaintiff must submit evidence of

sufficient quantity and quality to support a

jury verdict in plaintiff’s favor. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

The court may draw an inference as to material

fact in favor of the nonmoving plaintiff if

the inference is rational or reasonable.

Phelps Dodge, 865 F.2d at 1542 (citing T.wW.

Elec. Serv. v. Pacific Elec. Contractors, 809

F.2d 626, 631 (9th Cir. 1987)).*

‘* In Phelps Dodge, the plaintiff alleged

that Phelps Dodge, a corporation that owned

and operated a large copper mine and milling

App. 108

In this case, Voigt has not presented

evidence from which a reasonable jury could

infer that each of the Defendants tacitly

agreed to retaliate against Voigt for his

refusal to discriminate against nonresident

applicants. The facts presented are largely

undisputed, since Voigt relies heavily on

transcripts of recorded interviews supplied by

the Defendants, intraoffice memoranda, and

public decisions and letters. See Part II-A

above (Relevant Facts). From the facts, there

is insufficient evidence to show each

plant in Ajo, Arizona, conspired with local

law enforcement officials to deprive its

striking employees of their constitutional

rights under § 1983. The plaintiffs had

submitted evidence that Phelps Dodge enjoyed

a powerful position in the community and had

repeated contacts with the police; that the

Justice of the Peace issued warrants without

probable cause, following a meeting with the

attorney’s for Phelps Dodge; that the police

allowed Phelps Dodge officials to view the

list of employees that the police intended to

arrest; and that the police provided

deferential treatment to stikebreakers over

strikers. The Ninth Circuit concluded that

while none of the evidence on its own would

support a justifiable inference of Phelps

Dodge’s participation in a conspiracy, such an

inference could be drawn from all of the

direct and circumstantial evidence taken

together. Thus, summary judgment for the

defendants was inappropriate.

App. 109

Defendant participated in a retaliatory

conspiracy.

Defendant Savell: Voigt contends that

Judge Savell discriminated against nonresident

applicants by deciding Demoski’s grievance was

valid. Voigt argues that Judge Savell vio-

lated the Personnel Rules because the Rules do

not permit deference to an in-house applicant

unless the applicant seeks a promotion. See

Voigt’s Affidavit, Docket No. 101, Ex. H, p.

13; Personnel Rule 3.13.02, Docket No. 101,

Ex. K, p. 26. While Judge Savell did mention

Rule 3.13.02 on p. 6 of his decision, the

decision focused on Voigt’s failure to pro-

perly evaluate the applicants’ qualifications

for the Records Clerk position. Judge

Savell’s decision suggests that Demoski was

better qualified than Crawford/Perron. Docket

No. 101, Ex. E-5. If Demoski was more quali-

fied, Judge Savell’s decision does not imply

a conspiracy.

Voigt also relies on Jackson’s statement

in her telephonic interview with Shirley Nash

regarding Judge Savell’s interest in helping

disgruntled employees (Docket No. 101, Ex.

O-22, p. 24), Judge Savell’s memorandum to

court employees inviting comments on a new

filing system (Docket No. 101, Ex. N-1.5), and

the letter of intent to dismiss, which men-

tions Voigt’s criticism of Judge Savell’s

grievance decision (Docket No. 101, Ex. Q-1),

to show that Judge Savell had conspired with

App. 110

the other Defendants to improperly discharge

Voigt. This evidence does not give rise to an

inference that Judge Savell agreed with others

to discriminate against nonresidents and to

discharge Voigt for refusing to join in such

discrimination.

Defendant Jackson: Voigt appears to rely

on Jackson’s statements during recorded

interviews with employees, especially Woods,

to show that she was a member of the retali-

atory conspiracy. Yet during the same inter-

view, she clearly denies following any "local

hire" policy.’’ Her statements to Woods reveal

that she exerted pressure on Woods to more

closely supervise the hiring decisions of

Voigt, but no inference can be made from such

statements that she supported an unlawful

discrimination policy or supported firing

Voigt because he did not follow an "Alaska-

hire" policy.

Voigt contends that Jackson selectively

‘7 During the interview, Woods stated

that he was not aware of an "edict or mandate"

that precluded hiring out-of-state applicants.

Jackson replied, "I guess I’m the last person-

- I’m not one of those people that preach

Alaska hire." She explained that there was no

such mandate, but cautioned that if Woods

hired from outside the state, "“you’re going to

be criticized, and you better be ready to

justify it." Docket No. 101, Ex. O-4, pp. 43-

44.

App. 111

interviewed members of Voigt’s staff, implying

that she was on some sort of witch-hunt to

gather evidence against Voigt. Docket No.

101, p. 44. Voigt cites Jackson’s statement

to Shirley Nash advising Nash that she and the

other disgruntled employees should "kind of

join forces.” The record does not bear out

Voigt’s contentions.

In the course of her investigation,

Jackson interviewed all employees who were

involved in any way with the hiring process

for the recent criminal and records clerk

positions.’*® From her investigation, Jackson

‘8 Jackson interviewed the following

employees regarding the hiring procedures:

Burk Voigt (he interviewed all the

applicants); Mary Jo Carr (the personnel clerk

who screened applications), Docket No. 101,

Ex. O-2; Mary Betts (criminal supervisor who

interviewed applicants for the criminal

position), Docket No. 101, Ex. O-3; Ron Woods

(area court administrator who initially denied

Demoski’s grievance), Docket No. 101, Ex. O-4,

O-9; Sharon Hotrum (deputy clerk who

interviewed applicants for the criminal clerk

position), Docket No. 101, Ex. O-6; Dana

Hoffman/Evans (she received the criminal clerk

position), Docket No. 101, Ex. O-5; Megan

Crawford/Perron (she received the records

clerk position), Docket No. 101, Ex. O-7;

Kathy Jenkins (Voigt’s secretary who amended

Crawford/Perron’s application so that she

would qualify for the criminal clerk

App. 112

concluded that Crawford/Perron had received an

unfair advantage in resubmitting her

application for the records clerk position;

that Voigt made inappropriate statements to

Demoski by telling her that he was basing his

selection of the new criminal clerk on “out-

going personality," which was an improper

criterion; and that Demoski had not received

proper deference for the records clerk posi-

tion because the selection criteria used by

Voigt to exclude her (legal experience and

education) were far beyond that required of an

entry level clerk. See Jackson’s response to

interrogatories, Docket No. 101, Ex. J-20.

While Jackson was investigating in

position), Docket No. 101, Ex. O-10; Jan

Stroffolinc (records supervisor who

interviewed applicants for the records clerk

position), Docket No. 101, Ex. O-11; Roberta

Demoski (she was denied the records clerk

position), Docket No. 101, Ex. O-19;

Magistrate Jackson (Supervisor of Demoski at

the Galena court), Docket No. 101, Ex. O-20;

Shirley Nash (accounting supervisor who

interviewed applicants for the records clerk

position), Docket No. 101, Ex. O-22; Brenda

Pitka (one of the applicants for the criminal

clerk position), Docket No. 101, Ex. O-15; and

Carolyn Turner (former personnel technician

who disqualified Crawford/Perron’s initial

application for the criminal clerk position

and later qualified the amended application),

Docket No. 101, Ex. 0-23.

App. 113

Fairbanks, several employees asked to speak

with her individually regarding other problems

in the Fairbanks court. Carol Knight, one of

the applicants for the criminal clerk posi-

tion, complained that Voigt made inappropriate

statements, such as airing problems he had

with certain supervisors to other employees

and stating that he felt he needed to treat

women like children. She also complained that

Voigt maliciously tied up the computer system

to prevent others from using it and to assert

his control. Docket No. 101, Ex. O-8. Susan

Thorgaard, a clerk in the Transcript

Department, complained of the low morale in

the office, her perception that Voigt was

dishonest,’**® and that she had worked an extra

500 hours of unpaid overtime helping Voigt set

up the computer system. Docket No. 101, Ex.

O-14. Melanie Corkhill, a civil clerk, also

complained that morale was extremely low, that

Voigt referred to his clerks as “dumb clerks,"

that Voigt talked to her about. other

employees’ mistakes, and that Voigt abused the

chain-of-command by demanding that communica-

tions from employees flow through their

supervisors but refusing himself to communi-

** She explained that one day, workers in

the building broke an employee’s coffee mug

and left three dollars for a replacement.

Voigt pocketed the cash and the employee

bought her replacement mug without

reimbursement. Docket No. 101, Ex. O-14, pp.

9-10.

App. 114

cate to employees through the supervisors.

Docket No. 101, Ex. O-16. Finally, Wendy

Clayton, a former secretary for Voigt,

complained of Voigt’s general hostility.

Docket No. 101, Ex. O-24. These employees

apparently sought out Jackson while she was

investigating alleged improprieties in hiring

procedures; there is no implication that

Jackson was attempting to find additional

excuses to fire Voigt, although the intent to

dismiss letter specifically mentions each of

the complaints raised by these employees as a

reason for his dismissal. See footnote l,

supra.

Jackson’s statement to Shirley Nash

suggesting that Shirley and others should

"kind of join forces" is part of her statement

to Shirley that “if you think you’re being

treated unfairly or you see other people being

treated unfairly, you’re going to have to kind

of join forces.” Docket No. 101, Ex. 0-22, p.

22-23. Nash had just complained to Jackson

that she felt Voigt unfairly manipulated his

employees and refused to help them when he

identified a performance problem. Jackson

asked “why haven’t you gone to the ACA if you

think that things haven’t been handled

fairly?" Nash replied that she didn’t think

Woods would want to talk to her. Id. at 22.

Consequently, Jackson made the statement cited

by Voigt. Such statements, taken together, do

not imply that Jackson was promoting any

conspiracy to fire Voigt.

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App. 115

None of the evidence presented by Voigt

permits an inference that Jackson participated

in a conspiracy to discriminate against non-

residents or to participate in a conspiracy to

discharge Voigt unlawfully.

Defendant Woods: Voigt cites to Woods’

interview with Jackson to show that he joined

the retaliatory conspiracy. On March 4, 1992,

after Jackson cautioned Woods that hiring out-

of-state would create a ruckus, Woods stated

that "the last thing I would have done is to

allow a situation to happen that was going to

blow up in Art’s face... Burk. . . didn’t

realize the ramifications. I certainly didn’t

and-- but I do now." Docket No. 101, Ex. 0-4,

p. 45. Woods further stated that "it did not

environment that I’ve learned we’re operating

in.” Id. at 46. Jackson then replied, "All

I can say is that Sunny obviously thought that

she had conveyed it very strongly to you. She

says she called you and said that Cole was

adamant about not selecting from outside of

Alaska because that caused Legislatures [sic]

to call and ask questions and complain." Id.

at 47.

The next day, March 5, Jackson continued

the interview with Woods, noting that some

employees perceived that if they got on

Voigt’s bad side, they would be pressured to

leave. Woods replied that “quite honestly and

guite frankly, Karrold, I’m forming the

App. 116

opinion that that may well be true, you know,

that there are some problems with Burk."

Docket No. 101, Ex. O-9, pp. 15-16. Jackson

then warned Woods that he must get the court

in order, Stating “your destiny is tied to the

morale of this court" (Docket No. 101, Ex.

O-9, p. 22), and encouraged Woods to assert

his control as ACA (Id. at 23). Woods then

announced that "it’s my opinion from my

investigation thus far, that there was

management judgment error problems. And

there’s reason for concern.” Id. at 24.

Voigt essentially argues that’ the

interview reveals that Woods succumbed to the

pressures exerted by Jackson to join the

conspiracy to discharge Voigt unlawfully and

to discriminate against nonresidents. The

record does not support this contention.

Defendants Snowden and Cole: Assuming

Snowden and Cole are parties to the action,

Defendants’ counsel admits there may be a

"scintilla" of evidence against Snowden and

Cole that they were part of a conspiracy to

discriminate against nonresidents. Docket No.

haae. De ate The evidence cited by Voigt

includes a statement by Sunny Ziots, an Acting

Personnel Director during: Jackson's periodic

absence, which Jackson read to Woods during

the interview with Woods. Ziot’s statement

noted that "Cole instructed me to call Woods

and relay four points. I was to advise

him... (3) that Cole is adamant about not

pees ad

Nit ht titel ate

App. 117

selecting from outside Alaska because that

caused Legislators to call and ask questions

and complain." Docket No. 101, Ex. O-4, p.

42.

However, as the Defendants point out,

Ziots asserts in an affidavit that her state-

ment was a misstatement of what Cole had

actually instructed her to say. Ziots states

that Cole had instructed Ziots to say, “selec-

ting from the Lower 48 could be a big issue

for legislators and others." See Ziots’

affidavit, Docket No. 112, Ex. E. While this

inconsistency may create a question of Ziots’

credibility, it does not provide cognizable

evidence regarding Cole. See Fed. R. Civ. P.

56(e). Ziots’ explanation is, however, con-

sistent with the position Cole took in a

letter to Representative Phillips on

August 23, 1989, following the controversial

hiring of Voigt as Clerk of Court, an out-of-

state applicant at the time. Cole states in

her letter that “no future out-of-state

recruitment" will occur except under

exceptional circumstances, but that any out-

of-state applications that come in on their

own will be handled in the same manner as all

others in the selection process; the court

will choose the best qualified candidate from

the pool of applicants. Docket No. 101, Ex.

J-2. Cole’s affidavit reaffirms this

position. Docket No. 112, Ex. F, p.- 4.

As to Snowden, the Administrative

App. 118

Director who ordered the investigation into

the unusual hiring procedures in Fairbanks,

Voigt contends that Snowden acknowledged an

Alaska-hire policy, but refused to put the

policy in writing because it would be illegal.

The contention is supported by three

affidavits from Judge Hodges, Crawford/Perron,

and Voigt, which simply relate what Woods

allegedly told each of them after meeting with

Snowden. Docket No. 101, Ex. F, G and H.

However, as the Defendants point out, the

affidavits contain double hearsay that has

been repudiated by Woods. Docket No. 112, p.

29-3¢. Woods and Snowden clearly deny that

Snowden acknowledged any such policy. Docket

No. 112, Ex. H and I. Rather, Snowden was

concerned that a more qualified Alaskan

minority was not selected over a minimally

gualified nonresident. Id. Furthermore,

Woods denies ever speaking to Crawford/Perron

regarding his conversation with Snowden.

Docket No. 112, Ex. H, p. §$. While these

inconsistencies may reflect on the credibility

of Woods, they do not implicate Snowden in any

conspiracy.

Consequently, Voigt has not produced the

“quantum and quality” of evidence sufficient

for a jury to find that Snowden and Cole par-

ticipated in a retaliatory conspiracy to

discharge Voigt.

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App. 119

ee. Conclusion

The Court tentatively grants Defendants’

motion for partial summary judgment as to

Voigt’s cause of action under 42 U.S.C.

§ 1985(3). In the first place, Voigt has

failed to satisfy the first element of a

§ 1985(3) claim; the facts presented to not

appear to support a reasonable inference that

each of the Defendants participated in a

retaliatory conspiracy. Second, even if Voigt

has offered sufficient evidence to raise the

inference, Voigt has failed to satisfy the

second element of a § 1985(3) claim; the facts

do not support a reasonable inference that the

purpose of the conspiracy was to invidiously

discriminate against a protected class of

persons. In fact, Voigt, Cramer and Mills

were all out-of-state residents at the time

they were “hired” for employment with the

court system. In any event, it appears that

the claim is precluded by the doctrine of

qualified immunity, since the law was not so

clearly established that a reasonable official

should have realized that conspiring to dis-

charge Voigt for refusing to discriminate

against nonresidents applying for public

employment would violate 42 U.S.C. § 1985(3).

App. 120

III. WAS THE LAW SO CLEARLY ESTABLISHED THAT

A_REASONABLE OFFICIAL SHOULD HAVE REALIZED

THAT DISCHARGING VOIGT FOR HIS CRITICISM OF

THE CRAMER HIRING AND THE DEMOSKI GRIEVANCE

DECISION WOULD VIOLATE 42 U.S.C. § 1983?

A. Relevant Facts

In December 1990, a report was prepared

by Dale Sipes, a court management consultant,

entitled "Fairbanks Judgeship Needs Study."

Docket No. 101, Ex. C. The Sipes report was

highly critical of the working environment at

the Fairbanks courthouse. Id. at p. 23-24.?°

Voigt appears to have been quite defensive

following the report, perceiving that Judge

Savell blamed him for the critical report.

See Voigt’s memorandum to Savell of

January 17, 1991, at Docket No. Lig, Be. 8,

last page.

A vacancy occurred in the Fairbanks Area

Court Administrator position in early 1991,

and four individuals were interviewed for the

position in mid-April 1991. See Voigt’s

** The report made such statements as

"the working environment of the entire

courthouse is not reported to be one of mature

collegiality," and "sending memoranda that are

biting or downright nasty instead of walking

down the hall to discuss an issue has become

an acceptable practice. This does not appear

to be an environment where new ideas can be

put forth in a spirit of goodwill and mutual

Support." Id. at p. 23.

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deposition, Docket No. 87, Ex. A, p. 66. One

of the candidates was Judith Cramer, an

administrator in Ohio. Voigt was highly

critical of Cramer. In a supervisors’ meeting

sometime in April, Voigt indicated that Cramer

had received preferential treatment because

she was an administrative favorite who knew

Snowden well and because she was the only

candidate to have lunch with Chief Justice

Rabinowitz. See Voigt deposition, Docket No.

87, EX. A, pp. 22, 35. Voigt also expressed

concern that Cramer would adopt Snowden’s

policies rather than serve as an advocate for

the Fourth Judicial District. Id. at 28-29;

see Affidavit of Brenda Richards [sic] (jury

clerk), Docket No. 101, Ex. A-19. Finally, he

also stated that the judges in Ohio would not

be sorry to see her go. Docket No. 87, Ex A,

pp. 29-30. Voigt also stated to Judge Savell

that he thought Judge Savell should consider

Cramer’s gender if that might exacerbate the

court system’s existing male and female

cliques. Id. at 56-58, 82-83.

Judge Savell initially offered the

position to Cramer, but she declined the

position. On Friday afternoon of April 26,

Savell offered the position to Donald Mills,

an administrator in Oregon, and Mills accepted

the position. See Savell’s affidavit at

Docket No. 8&7, Ex. C. On Monday, April 29,

Cramer called to indicate that she had changed

her mind and would like to accept the posi-

tion. Id. That afternoon, Judge Savell and

App. 122

Judge Steinkruger telephonically contacted the

other judges who were within the district to

get their approval to fire Mills and hire

Cramer. Id. Apparently, six judges voted to

hire Cramer and Judge Hodges opposed. See

Hodges’ memorandum of May 20, 1991, Docket No.

101, Ex. A=-16. Judge Savell then called

Snowden, who approved the action and author-

ized an offer to make Mills whole for any

losses or expenses he had occurred [sic].

Docket No. 87, Ex. C. Judge Savell then

called Mills in the late afternoon of April 29

and "fired" him; he then hired Cramer. Id.

Apparently, when Savell called Mills, Mills

indicated that he had met with a realtor to

consider listing his house for sale, and that

neither he nor his wife had terminated their

current employment. Id. However, Judge

Hodges contends that when he called Mills the

next day, April 30, Mills indicated that his

wife had resigned her job and an initial

garage sale had taken place. See Hodges

memorandum dated April 30, 1991, Docket No.

101, Ex. A-6.

Judge Steinkruger circulated a memorandum

to all court system employees on April 30,

informing them of the hiring change. Docket

No. 101, Ex. A-7. The following day, there

was a supervisors’ meeting attended by the

various departmental heads of the Fairbanks

Court System. See Voigt deposition, Docket

No. 87, Ex. A, p. 7-10. At the meeting, Voigt

agreed with an attendee’s characterization

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App. 123

that Judge Savell acted "“disgracefully.” Id.

at 18. He stated that Judge Savell lacked

honor and integrity in his handling of the

Cramer incident. Id. at 15. He also does not

deny that he told the supervisors that Judge

Savell acted without authority in violation of

Personnel Rules. Id. at 45-46.

After the meeting on May 1, Voigt met

Anna Farneski, a news reporter for the

Fairbanks Daily News-Miner, in the courthouse

parking lot. Id. at 103-104. She inquired

about the ACA situation, and Voigt responded

that he could give her a copy of Judge

Steinkruger’s memorandum. Id. at 104-105.

When Voigt made a copy of the memorandum, he

discovered a copy of Judge Hodges’ memorandum

to Judge Savell on top of a printer in the

clerk’s office. Id. at 105. Judge Hodges’

memorandum was highly critical of Judge

Savell’s handling of the Cramer incident.

Docket No. 101, Ex. A-6. Voigt placed both

memoranda in an envelope and sent them to

Farneski. Docket No. 87, Ex. A, p. 106. On

May 5, 1991, the Fairbanks Daily News-Miner

published a story on the Cramer/Mills fiasco.

Docket No. 101, Ex. A-9. The story published

Judge Hodges’ statement that the matter

“reflects adversely on the credibility and

integrity of the Alaska Court System and the

4th Judicial District." Docket No. 101, Ex.

A-6; Docket No. 101, Ex. A-9.

On May 8, Judge Savell denied Voigt’s

App. 124

request that he receive a salary adjustment

for service as acting ACA. Docket No. 101,

EX. A-10.** Voigt responded on May 8 that he

intended to "refrain from any involvement

outside the scope of the Clerk's Office."

Docket No. 101, Ex. A-12. Judge Savell then

clarified that he expected Voigt to meet his

responsibilities as assistant ACA, which is

part of his job description. Docket No. 101,

Ex. A-13. On May 15, Voigt noted his inten-

tion to file an informal grievance, stating

that Savell’s denial of Voigt’s request was

"unfair and capricious." Docket No. 101, Ex.

A-14. Consequently, Judge Savell issued a

formal written reprimand to Voigt on May 15.

Docket No. 101, Ex. A-15.

In his reprimand, Judge Savell explained

the reasons for his dissatisfaction with

Voigt’s performance. He regarded Voigt’s

behavior as uncooperative and "befitting a

spoiled, pouting child." He noted Voigt’s

failure to attend a regularly scheduled

meeting because he was no longer the acting

ACA and Voigt’s resistance to performing

** Judge Savell’s memorandum to Voigt

stated, "Effective immediately, you are no

longer to perform the duties or exercise the

responsibilities of acting area court

administrator. I have found your performance

in this capacity unsatisfactory and I do not

recommend, and in fact, oppose a salary

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App. 125

duties expected of an assistant ACA, requiring

the recent exchange of clarifying memoranda.

Savell also explained that Voigt’s attitude

was having a harmful effect on relations with

court system representatives. He complained

of Voigt’s "insolent and sarcastic comments”

during a work session and Voigt’s war-like “us

and them" attitude toward the Anchorage Court

System. Savell was upset with Voigt’s actions

that "appear to have been designed to torpedo

my selection of Judith Cramer and to undermine

any chance she has of being accepted in the

building and succeeding at her job." He noted

Voigt’s apparent gender bias” and his comments

regarding preferential treatment and allegi-

ance to the Anchorage administrators, as well

as other negative comments. Finally, Savell

noted Voigt’s resistive behavior toward

Savell’s request for case management reports.

Although Voigt disagreed with the

reprimand, he chose not to file a grievance;

instead, he apologized to Judge Savell and the

two shook hands and agreed to move forward.

Docket No. 87, Ex. A, p. 91. For no apparent

reason, Judge Savell mailed a copy of the

reprimand along with a copy of the newspaper

article to his former law clerk,

Crawford/Perron. See Crawford/Perron

affidavit, Docket No. 101, Ex. F.

22 See Excerpt from Voigt’s deposition,

App. 126

Later that summer, Voigt was criticized

for transferring a records clerk to the civil

department and a civil clerk to records.

Karrold Jackson investigated the incident and

in a memorandum dated August 8, 1991, she

criticized Voigt’s “poor managerial judgment,”

noting that he had discussed a supervisor’s

poor performance with one of the supervisor’s

employees and that he had undermined the

authority of subordinate supervisors. Docket

No. 101, Ex. B-l, p. 5-6. Jackson concluded

as follows:

If this were the first time Burk

had been in violation of the

personnel rules or shown poor

managerial judgment, I believe a

stern verbal warning would be in

order. However, this is not the

first time for either [citation to

certain attachments]. If Burk

persists in violating the personnel

rules and/or taking inappropriate

actions as a manager, he is placing

the court in jeopardy of adverse

legal action.

Id. at 6.

In October 1991, Voigt received his six-

month evaluation from Judge Savell. Docket

No. 101, Ex. B-6. Savell rated Voigt “above

average” overall, but noted several categories

where Voigt needed improvement: “following

policies and procedures," “getting along with

other workers,” and “supervising others.* In

his comments, Savell explained as follows:

Id. at 3 (emphasis added). Savell further

complained that Voigt was “openly hostile and

disrespectful" toward court administrators and

"I, and others, perceive that he often

has a hidden or ‘secret agenda’ that is being

that

App. 127

If he cannot accomplish what he

wants directly, through proper

procedures, he will at times ignore

the procedures to obtain his goal

through less direct means.

Examples abound, whether in his

dealings with the financial arm of

administration to procure equipment

or funds, adding extra duties to

the scope of work of contractors,

unde t n

Area Court Administrator whose

s t Vv , or

coercing a “voluntary” personnel

action. His great accomplishments

in the Clerk’s Office have come at

the price of dampened morale and

fear on the part of subordinate

employees. He has been

uncooperative and has harmed our

relations with the Department of

Transportation, which maintains our

facility.

advanced." Id. at 3.

1992.

Savell,

Apparently,

Ron Woods.

The Demoski grievance erupted in February

See “Relevant Facts" at Part II-A.

Voigt was again highly critical of Judge

following his grievance decision.

Voigt discussed the grievance

decision with at least five other court

employees, including Shirley Nash, Sharon

Hotrum, Jan Stroffolino, Robin Nicholson and

See Voigt deposition, Docket No.

App. 128

87, Ex. A, pp. 670-672. Voigt speculated that

Savell discriminated against nonresidents, and

voiced this criticism to Shirley Nash. Id. at

561. He also admits that he may have told her

that he felt Savell had violated the personnel

rules and that Savell was motivated by per-

sonal dislike for Voigt. Id. at 562-65.

Voigt admits that he felt Savell was out to

“get him" ever since his criticism of the

Cramer incident. Id. at 674. Voigt also

commented to Nash that he thought it would be

hard for a person to grieve something and

expect to end up working in that environment,

and he disagreed with Savell’s remedy of

hiring Demoski for the next available posi-

tion. Id. at 687-88.

Once Crawford/Perron started to work as

the new records clerk, Judge Savell informed

her that she would have to “choose sides,"

implying that she would have to choose between

her friendship with Judge Savell and any

___ positive relationship with Voigt. See

Crawford/Perron affidavit, Docket No. 101, Ex.

F, p- 6. Sometime after Voigt was discharged,

Judge Savell told her that she no longer

needed to choose sides. Id. at 7. Voigt was

discharged March 26, 1992. The reasons for

his discharge were articulated in the letter

of intent to dismiss, which included his

inappropriate statements regarding the Cramer

incident and his negative statements regarding

the Demoski grievance decision. See footnote

l, supra.

App. 129

B. Voigt’s § 1983 Claims

Section 1983 prohibits the deprivation of

constitutional rights by any person acting

under color of state law. Voigt claims that

his discharge was in retaliation for Voigt’s

criticism of the Cramer and Demoski incidents,

essentially depriving him of his constitution-

al right to freedom of speech. He claims that

the Defendants together violated § 1983 by

conspiring to discharge Voigt for his criti-

cisms of the Cramer and Demoski incidents.”

He also claims that each Defendant violated

§ 1983 by retaliating against Voigt for his

criticisms of the Cramer and Demoski

incidents.**

” Voigt merges this conspiracy claim

with his conspiracy claim under § 1985(3). As

noted already, there is no evidence of a

conspiracy under § 1985/3).

* there is nce evidence that Snowden,

Cole or Jackson retaliated against Voigt

because of his criticism of the Cramer

incident or the Demoski incident. They merely

participated in the investigation of alleged

improper hiring practices. In fact, it

appears that Snowden ordered the investigation

before Voigt ever mde his critical remarks

regarding the Demoski grievance decision. The

Letter of intent to <cismiss Voigt, prepared by

Judge Savell and signed by both Savell and

Woods, alludes to Veigt’s criticisms of both

incidents. However, the preponderance of the

App. 130

The Ninth Circuit has adopted a three-

step test for determining whether the

retaliatory discharge of a public employee

violates the Free Speech Clause of the First

Amendment. Erickson v. Pierce County, 960

F.2d 801, 804 (9th Cir.), cert. denied, 113 Ss.

Ct. 815 (1992); Gillette v. Delmore, 886 F.2d

1194, 1197 (9th Cir. 1989). First, the court

must determine whether the plaintiff’s speech

at issue was entitled to constitutional

protection. Second, the court must determine

whether the protected Speech was a substantial

or motivating factor behind the discharge.

Third, the court must determine whether the

discharge would have occurred even if the

employee had not engaged in the protected

speech.

C. Was Voigt’s Speech Constitutionally

Protected?

Determining whether an employee’s speech

is constitutionally protected is a question of

law for the court to decide. Connick v.

Myers, 461 U.S. 138, 148 n.7 (1983). The

issue involves a balancing “between the inte-

rests of the [employee], as a citizen, in

commenting upon matters of public concern and

the interest of the State, as an employer, in

promoting the efficiency of the public ser-

evidence shows that while Voigt’s criticism

may have been a factor in their decision to

terminate Voigt, it was not necessarily the

motivating factor.

App. 131

vices it performs through its employees.”

Pickering v. Board of Education, 391 U.S. 563,

568 (1968). To be protected then, the

employee first must show that his speech

involved a matter of public concern. Rankin

v. McPherson, 483 U.S. 378, 384 (1987);

Gillette, 886 F.2d at 1197. If the speech

involves a matter of public concern, then the

burden of proof shifts to the government to

show that the employee’s speech “so severely

damaged office harmony and working relation-

ships that the government’s interest in pro-

moting an effective workplace outweighed the

employee’s First Amendment rights." Hyland v.

Wonder, 972 F.2d 1129, 1139 (9th Cir. 1992),

cert. denied, 113 S. Ct. 2337 (1993), on

remand, 1993 WL 356891 (N.D. Cal. 1993). See

Rankin, 483 U.S. at 388 ("The State bears a

burden of justifying the discharge on legiti-

mate grounds"); Connick, 461 U.S. at 150

(burden on State varies depending upon nature

of employee’s expression).

Re Matter of Public Concern

Protection may be triggered if any part

of the employee’s speech addresses an issue of

public concern, even though other parts of the

expression do not qualify. Hyland, 972 F.2d

at 1137. “Whether an employee’s speech

addresses a matter of public concern must be

determined by the content, form, and context

of a given statement, as revealed by the whole

record.” Connick, 461 U.S. at 147-148.

App. 132

a. content

Speech of public concern addresses

“issues about which information is needed or

appropriate to enable members of society to

make informed decisions about the operation of

their government." McKinley v. City of Eloy,

705 F.2d 1110, 1114 (9th cir. 1983). On the

other hand, speech that "deals with individual

personnel disputes and grievances," which is

of no relevance to the public’s evaluation of

the performance of governmental agencies, is

not of public concern. Id. at 1114. Some

speech addresses issues that are inherently of

interest to the public, such as allegations of

racial discrimination. Connick, 461 U.S. at

148 n.8; see Roth v. Veteran’s Admin., 856

F.2d 1401, 1406 (9th Cir. 1988) (characteriz-

ing allegations that the VA “wasted resources,

acted unethically, mismanaged personnel, and

violated safety regulations” as inherently of

interest to the public since such criticisms

went directly to the institution’s performance

of its duties).

The Ninth Circuit recently summarized

case law identifying specific issues of public

concern in Hyland, 972 F.2d at 1137-38. These

included: misuse of public funds, wasteful-

ness, and inefficiency in managing and operat-

ing government entities (citing Roth, 856 F.2d

at 1405); the competency of the Mediterranean

Fruit Fly Eradication Project Management

(citing Allen v. Scribner, 812 F.2d 426 (9th

GRR SAAS Wh A PI ANNES SEB ERAN

App. 133

Cir.), amended, 828 F.2d 1445 (9th Cir.

1987)); the competency of the police force,

the interrelationship between city management

and its employees, discipline and morale in

the work place, and an agency’s efficient

performance of its duties (citing McKinley,

705 F.2d at 1114); and the low morale,

inadequate training and discipline of fire-

fighters (citing Janusaitis v. Middlebury

Volunteer Fire Dep’t, 607 F.2d 17, 18 (2d Cir.

1979)). In Hyland, a volunteer working for

the San Francisco Juvenile Probation

Department drafted a memorandum to the

presiding judge which “exposed abuses,

inefficiency, threats to public safety,

potential civil rights violations, and

incompetence of public law enforcement

officials at Juvenile Hall.” 972 F.2d at

1137. The Ninth Circuit found the content of

the memorandum included issues of public

concern.

b. context

It is not enough, however, that the

speech concern governmental incompetence,

etc., for it to necessarily rise to the level

of public concern. The court must also

examine the context of the speech, focusing on

the point of the speech. Roth, 856 F.2d at

1405. In Connick, 461 U.S. at 148, the Court

distinguished between speech that sought to

bring to light actual or potential wrongdoing

or breach of the public trust and speech that

App. 134

merely reflected one employee’s dissatisfac-

tion with her employment. In Connick, the

plaintiff was an assistant district attorney

in New Orleans who strongly opposed her

transfer from one section of the criminal

department to the other. She prepared and

circulated a questionnaire soliciting the

views of her fellow staff members “concerning

office transfer policy, office morale, the

need for a grievance committee, the level of

confidence in supervisors, and whether

employees felt pressured to work in political

campaigns." Id. at 141. The Court specifi-

cally noted that "Myers did not seek to inform

the public that the Dist -ict Attorney’s Office

was not discharging its governmental responsi-

bilities in the investigation and prosecution

of criminal cases. Nor did Myers seek to

bring to light actual or potential wrongdoing

or breach of public trust on the part of

Connick and others." Id. at 148. Rather, the

focus of Myers’ questions was "not to evaluate

the performance of the office but rather to

gather ammunition for another round of contro-

versy with her superiors. These questions

reflect one employee’s dissatisfaction with a

transfer and an attempt to turn that dis-

pleasure into a cause celebre." Id. at 148.

The Ninth Circuit has emphasized the

distinction articulated in Connick. In Roth,

the court found that the plaintiff's criticism

of the management of the VA’s San Francisco

Medical Center was unlike the situation in

i.e + aM gene

UR PAE Eee rp tiey

App. 135

Connick because it involved no personal em-

ployment dispute; "“[nJor were Roth’s comments

precipitated by adverse actions of his super-

visors pertaining to his employment. In fact,

it is undisputed that the defendants hired

Roth specifically to act as a “trouble-

shooter,” and thereby charged him with making

just these kinds of criticisms." 856 F.2d at

1406. Similarly, in Hyland, the court found

that the plaintiff’s criticisms of management

at Juvenile Hall “was not the by-product of a

personal employment dispute. The memorandum

did not concern Hyland’s dissatisfaction with

his own position or on-the-job treatment

[citation]. Hyland had no personal occupa-

tional stake in the dismissal of La Plante

[the Director]. Hyland’s memorandum addressed

more than a ‘work place grievance’- Hyland

spoke ‘in order to bring wrongdoing to light

[not] merely to further some purely

private interest.’” 972 F.2d at 1138

(citations omitted).

Thus, the Connick distinction focuses

upon whether the public employee speaks out as

a citizen upon matters of public concern or

simply speaks out as an employee upon matters

of personal interest. 461 U.S. at 147.

Consequently, it should be noted that state-

ments made during the course of an employee’s

official duties weigh against a conclusion

that they involve matters of public concern.

See, e.g., Koch v. City of Hutchinson, 847

F.2d 1436, 1442-43 (10th Cir.), cert. denied,

App. 136

488 U.S. 909 (1988) (fire inspector’s routine

report was not exempted from First Amendment

protection per se, but fact that report was

made in the course of the employee’s official

duties militated against a finding that the

speech addressed matters of public concern);

Erickson v. Board of County Comm’rs, 801 F.

Supp. 414, 421 (D. Colo. 1992) (citing

(Considine v. Board of County Comm’rs, 910

F.2d 695, 700 (10th Cir. 1990)) (county

administrator advised board of commissioners

during public meeting of potential budget law

violations by certain board members; while

noting that speech during course of official

duties weighed against protection, the court

ultimately found that it did concern matters

of public concern).

Cc. form

A final factor in determining whether the

employee’s speech rises to a level of public

concern is the form of the speech. It is not

necessary that the employee’s speech be broad-

cast to the general public for it to be con-

sidered a matter of public concern. In

Hyland, the court rejected the defendant’s

contention that Hyland’s limited disclosure of

his memorandum to the judges and others

charged with supervising the administration of

Juvenile Hall precluded its contents from

being of public concern; rather, the court

noted that the Supreme Court permitted a

public employee "to communicate privately with

ro DO siete Ag

a a aS a as. oe

—_a———— eee

App. 137

his employer rather than to spread his views

before the public.” 972 F.2d at 1138-39

(quoting Givhan v. Western Line Consol. Schl.

Dist., 439 U.S. 410, 415-16 (1979); and citing

Rankin, 483 U.S. at 386-87 n.11; Connick, 461

U.S. at 149). See also, Gillette, 886 F.2d at

1198 ("The fact that Gillette’s speech was not

directed to the public at large, to inform it

of the perceived problems, is not critical to

the inquiry of whether the speech involves a

matter of public concern").

On the other hand, however, simply

because a newspaper finds the speech news-

worthy does not mean that the speech involves

a matter of public concern for First Amendment

purposes. In Koch, the plaintiff fire inspec-

tor suggested in his report that a fire had

been caused by arson, ignoring a laboratory

report that had concluded that the fire was

caused by a cracked gas valve. The County

Attorney asked two other inspectors and the

local bureau of investigation to submit state-

ments on the cause of the fire, and their

reported contradicted Koch’s. The local news-

paper reported the dispute as to the cause of

the fire. Following Koch’s subsequent demo-

tion, the sewspaper published stories describ-

ing the entire situation. The Tenth Circuit,

however, held that media publicity was not

determinative of the question of whether

Koch’s speech was a matter of public concern.

847 F.2d at 1448 ("The factors which determine

whether a story is newsworthy are hardly

App. 138

coterminous with the factors which determine

whether the communication has societal ramifi-

cations, and in any event, newspaper editors

cannot decide the question for us") (quoting

Egger v. Phillips, 710 F.2d 292, 317 (7th

Cir.), cert. denied, 464 U.S. 918 (1983)).

See also, Jurgensen v. Fairfax County, VA, 745

F.2d 868, 888 (4th Cir. 1984) (employee of

police department’s Emergency Operations

Center turned over an internal administrative

review report to a reporter at the Washington

Post, which criticized the E£oc’s four-day, 10

hour work shift and suggested an increase in

staff and better training, and the subsequent

newspaper story referred to the report; the

court held that the report did not include

material of any substantial public concern).

d. Voigt’s speech

Voigt argues that his speech criticizing

the Cramer incident and the Demoski incident

is speech "that can fairly be considered as

relating to any matter of political, social,

or other concern to the community." Gillette,

886 F.2d at 1197. Voigt contends that his

speech regarding the Cramer incident brought

to light potential wrongdoing (i.e.,

preferential treatment and acting without

authority under the personnel rules) which was

of public concern as evidence by newspaper

stories.

Arguably, the content of some of Voigt’s

;

Gate beMnss me 4 a

Se ee oe ee ae

App. 139

speech regarding the hiring of Judith Cramer

was of limited public concern because it

exposed perceived abuses within the court

system. However, looking at the context of

Voigt’s speech, it is clear that he was not

speaking as a citizen. Rather, Voigt was

speaking as an employee disgruntled by the

possibility that the Fourth Judicial District

would be “under the thumb" of the Anchorage

administration and run by a woman who could

exacerbate gender-based “cliques” within the

system. Furthermore, there is evidence that

Voigt was feeling defensive following the

Sipes Report. The fact that the newspaper

printed a story on the Cramer hiring does not

serve to raise Voigt’s disgruntled responses

to the level of public concern.”

Voigt argues that his speech regarding

the Demoski grievance involved a matter of

public concern because it concerned a per-

ceived discrimination against nonresidents in

violation of their constitutional rights.

Again, however, it is questionable whether

Voigt made the speech as a concerned citizen.

** In fact, Voigt testified that when he

sent Judge Hodges’ memorandum to the

newspaper, he did not specifically intend to

inform the general public so much as to

provide the other employees with a better

explanation for the hiring of Cramer. See

Voigt’s deposition, Docket No. 87, Ex. A, pp.

109, 112.

ey ee ee

App. 140

This is because Voigt was under the impression

that Judge Savell was "out to get him" ever

since Voigt’s criticism of the Cramer inci-

dent. Thus, Voigt’s comments were the by-

product of a personal employment dispute. The

context factor further weighs against Voigt

because his comments were made during the

course of his official duties at the time

(i.e., Fairbanks hiring decisions).

Even if Voigt could ultimately convince

the Court that his speech involved matters of

public concern, for purposes of qualified

immunity, the Court finds that reasonable

officials could have determined that Voigt’s

speech more closely resembled the situation in

Connick rather than the Situation in Roth and

therefore conclude that Voigt’s speech did not

involve matters of public concern.

ns Balance of Interests

If the Court determines that any part of

Voigt’s speech involved a matter of public

concern, then the next step in determining

whether or not that speech is constitutionally

protected is for the Court to balance the

interests of Voigt against the interests of

the Defendants. The burden is on the

Defendants to show that Voigt’s speech so

severely damaged office harmony and working

relationships that the government’s interest

in promoting an effective workplace outweighed

Voigt’s First Amendment rights. See Hyland,

App. 141

972 F.2d at 1139. This burden to show dis-

ruption varies with the content of the

speech-- "[tjhe more tightly the First

Amendment embraces the speech the more

vigorous a showing of disruption must be

made." Id. at 1139. See Connick, 461 U.S. at

152 ("a stronger showing may be necessary if

the employee’s speech more substantially

involved matters of public concern").

"Actual, material and substantial" disruption

must be demonstrated. Hyland, 972 F.2d at

1140.

Note that determining to what extent the

plaintiff's speech disrupted office operations

involves a factual inquiry that may preclude

summary judgment in some cases. See, e.g.,

id. at 1140; Gillette, 886 F.2d at 1198; Roth,

856 F.2d at 1408.”

*° In Hyland, the Ninth Circuit remanded

the case for a determination of the disruption

issue. However, on remand, the district court

granted the defendants’ motion for summary

judgment on grounds of qualified immunity and

never determined whether there was disruption.

Instead, the district court found that at the

time the defendants acted it was not clearly

established under the law that a volunteer

employee was entitled to the same level of

First Amendment protection as a city employee.

1993 WL 356891 (N.D. Cal. 1993).

It is questionable, however, whether the

Ninth Circuit Court of Appeals would

App. 142

automatically apply qualified immunity simply

because the balancing inquiry is factually

complex. In Roth, the defendants were

asserting a qualified immunity defense and

argued that since the court must balance the

competing interests, the public officials

could not be expected to predict the outcome

of such balancing or engage in it themselves.

They cited Benson v. Allphin, 786 F.2d 268

(7th Cir.), cert. denied, 479 U.S. 848 (1986),

which recognized that cases requiring such

balancing may make it difficult to find the

law "clearly established" when assessing

claims of qualified immunity. The Ninth

Circuit, however, refused to hold that "public

employees can never maintain a Bivens action

alleging retaliation for exercise of the

[FJirst [A]mendment rights because

adjudicating these claims requires

particularized balancing." 856 F.2d at 1408.

It distinguished Benson by noting that the

Seventh Circuit considered the issue of

qualified immunity after a full trial, having

more thoroughly developed the facts for

comparison to existing case law. In contrast,

the Ninth Circuit Court of Appeals did not

have sufficient facts on the claim of office

disruption in the record before it.. Id.

However, a district court in the Tenth

Circuit has found qualified immunity

applicable where balancing the interests

involved a complex factual analysis. See

Erickson v. Board of County Comm’rs, 801 F.

Supp. 414, 423 (D. Colo. 1992). In Erickson,

App. 143

a. factors to consider

The balancing element takes into con-

sideration the "manner, time, and place of the

employee’s expression" as well as "the context

in which the dispute arose." Rankin, 483 U.S.

at 388; Connick, 461 U.S. at 152. The balanc-

ing involves a “factual inquiry into such

matters as whether the speech (i) impairs dis-

Judge Babcock stated as follows:

- + «+ In some circumstances

the fact-specific balance struck

under Pickering may preclude a

determination of "clearly

established law,” thereby giving

rise to qualified immunity under

Harlow, [citing Patrick v. Miller,

953 F.2d 1240, 1246 (10th Cir.

1992) ]

In this case the Pickering

analysis is complex and the balance

struck narrowly tips in favor of

Erickson’s right to free speech.

This case presents the situation

where the close Pickering balance

precludes me from concluding that

a free speech right was clearly

established. Consequently, Hayden

and Watson are entitled to

qualified immunity on Erickson’s

federal and state claims for

deprivation of his right to free

speech.

App. 144

Cipline or control by superiors, (ii) disrupts

coworker relations, (iii) erodes a close work-

ing relationship premised on personal loyalty

and confidentiality, (iv) interferes with the

speaker’s performance of her or his duties, or

(Vv) obstructs the routine operation of the

office." Hyland, 972 F.2d at 1139 (citing

Rankin, 483 U.S. at 388).

In considering these factors, it is

Significant that the employee’s speech

occurred at the office. See Connick, 461 U.S.

at 153 ("the fact that Myers, unlike

Pickering, exercised her rights to speech at

the office supports Connick’s fears that the

functioning of his office was endangered") ;

see also Koch, 847 F.2d at 1450 (fact that

speech occurs in the course of employee’s

official functions is an important factor);

Erickson v. Board of County Comm’rs, 801 F.

Supp. at 421 (same as Connick quote).

Also, under the factors, if "close

relationships are essential to fulfilling

public responsibilities, a wide degree of

deference to the employer’s judgment is

appropriate." Connick, 461 U.S. at 151-52.

Finally, the Court should note that a high

ranking public employee has an obligation to

use caution in speaking publicly about matters

that could affect the functioning of the

agency. See Rankin, 483 U.S. at 390-91 ("The

burden of caution employees bear with respect

to words they speak will vary with the extent

ou ees a

App. 145

of authority and public accountability the

employee’s role entails. Where, as here, an

employee serves no confidential, policymaking,

or public role, the danger to the agency’s

successful functioning from that employee’s

private speech is minimal"); McKinley, 705

F.2d at 1115 (a “high level public employee

obligated to implement an administration’s

policies" may be dismissed "if the employee

refused to support those policies and sought

to undermine them publicly"); Koch, 847 F.2d

at 1449-50 (employee’s responsibilities within

workplace are relevant); Erickson v. Board of

County Comm’rs, 801 F. Supp. at 422 ("a

governmental employee whose duties include

policy-making or public contact is subject to

a higher standard of caution regarding

speech").

b. Voigt’s speech was disruptive

It appears clear from the evidence

presented that the Defendants’ interests in

promoting an effective workplace outweighed

Voigt’s First Amendment rights because Voigt’s

speech severely damaged office harmony and

working relationships. Voigt, as Court Clerk

and Assistant Area Court Administrator, needed

to comply with a higher standard of caution

regarding his speech and the possibility of

its causing disruption. The fact that Voigt

made his statements at the office in the

course of his official duties also favors the

Defendants’ position that the speech

endangered working relationships.

App. 146

1) affect of speech re Cramer hiring

Voigt’s criticism of Judith Cramer and of

Judge Savell at the supervisors’ meetings

severely damaged office harmony and working

relationships. The Defendants presented

affidavits from three employees that were

present at the meetings which reveal

disruptive effects:

ae Frances Wagner, a pre-trial

coordinator, stated that Voigt’s comments made

her angry at Cramer and Savell because she

disliked the alleged preferential treatment

and felt Savell had lied when he promised to

hire the best person and someone who would

advance the interests of the Fairbanks system.

She believed Voigt’s comments because she felt

he was the only "link" to the higher adminis-

tration. Consequently, she had less respect

for Savell, Snowden and Chief Justice

Rabinowitz, questioning their abilities. She

also lacked confidence in Cramer and believed

it would be difficult to work for her. See

Wagner affidavit, Docket No. aaa, 26s 6: In

her affidavit/memorandum to staff counsel

Chris Christianson [sic], Wagner also stated

"I felt it extremely strange that [Voigt]

would try to deliberately turn us against not

only the possible new ACA but also against

Judge Savell." Docket No. 87, Ex. F.

-- Jo-Ann Grimaldi, the in-court clerks’

supervisor, stated that following Voigt’s

App. 147

comments, she no longer believed Cramer to be

qualified and felt that she would not be able

to work for Cramer. Grimaldi also indicated

that due to Voigt’s comments re bias and

favoritism she lost respect for Savell,

Snowden and Rabinowitz and was so angry at

Judge Savell that she no longer would speak to

him. She also felt that she, as an employee

of the Fairbanks Court System, would be

treated as the "laughingstock of the state.”

See Grimaldi affidavit, Docket No. 112, Ex. R.

oe Etta Burgess, the transcript

coordinator, stated that as a result of

Voigt’s comments at the meetings she lost

respect for Voigt because she felt that he

"shouldn’t be trying to tear down people by

statements to us.” She also stated, "I

believed he should have gone to the people he

was talking about to air his grievances." See

Burgess’ affidavit, Docket No. 112, Ex. S.

As the affidavits make clear, Voigt’s

comments served to alienate the staff fromthe

incoming ACA and lose respect for court

administrators. As the Defendants point out,

Voigt’s criticism came at a bad time. The

recent Sipes Report indicated office morale

was extremely low and the work environment

unpleasant. Voigt’s comments inflamed an

already volatile situation. Voigt’s dis-

closure of Judge Hodges’ memorandum to the

newspaper further disrupted working relation-

ships, since Judge Savell accused Hodges of

App. 148

disclosing the memorandum. See Voigt deposi-

tion, Docket No. C7, Bx. A, p.« 120.

Also, there is evidence that Voigt’s

comments triggered the division of court

employees into two sides-- those friendly

toward Judge Savell and those friendly with

Voigt. Wagner indicated that Voigt had

instructed the employees to go through him and

not directly to Judge Savell with any problems

they had. Docket No. 112, Ex. Q. The letter

of intent also refers to Voigt’s "edict" of

forbidding employees from speaking with Judge

Savell. Docket No. 101, Ex. Q-1, p. 3. As

Crawford/Perron stated in her affidavit, Judge

Savell indicated to her that she would have to

"choose sides." Docket No. 101, Ex. F, p. 6.

This divisive behavior, coupled with Voigt’s

sharp criticism of Judge Savell at the super-

visor’s meeting, reveals Voigt’s insubordina-

tion and attempts to undermine Judge Savell’s

authority.

Voigt contends that if his speech

regarding the Cramer hiring was as disruptive

as Defendants allege it was, why did the

Defendants wait until March 1992 to discharge

Voigt? Voigt argues that since the Defendants

chos3 only to issue a written reprimand, his

behavior must not have been too disruptive.

He contends that even if there was disruption

among courthouse employees, the Defendants

cannot prove that the disruption was the

result of Voigt’s exercise of free speech. He

App. 149

notes that because the Sipes Report indicated

that working relationships in Fairbanks were

poor already, Defendants should not blame any

continued disharmony on Voigt’s criticism of

the Cramer incident. He also notes that other

employees at the supervisors’ meeting

expressed similar outrage over Savell’s hiring

decision.

Voigt’s contentions do not vitiate

Defendant’s showing of disruption attributable

to Voigt’s speech. Voigt was under a higher

standard than other employees to use caution

in criticizing the actions of the presiding

judge. Furthermore, Voigt’s contentions do

not raise disputed factual issues precluding

summary judgment.

2) affect of speech re Demoski grievance

The facts presented show that Voigt

alienated other court employees against

Demoski by speaking to his subordinate super-

visors about alleged discrimination by Savell

and others. Voigt’s discussions with others

alleging that Savell was motivated by personal

dislike for Voigt further undermined Savell’s

authority. As Jackson’s investigation con-

cluded, Voigt improperly gave Crawford/

Perron’s application preferential treatment.

Consequently, his criticism of the grievance

decision further evidenced a refusal to follow

administrative policies.

App. 150

Defendants also argue that disruption

could be inferred from the fact that Voigt

accused Judge Savell and Chief Justice

Rabinowitz of unconstitutional discrimination,

which would "question the very essence of

their roles in the state judiciary” and

“undermine their authority." Docket No. 112,

p. 24.

Cc. conclusion

As it appears doubtful that Voigt’s

speech involved any matters of public concern

in the first place, Defendants have a lower

burden of showing that the balance of

interests tipped in their favor. Even if a

higher burden were required, the facts pre-

sented indicate that Voigt’s speech caused

substantial disruption at the courthouse.

Certainly, a reasonable official could find

that Voigt’s speech damaged office harmony and

working relationships to the extent that his

speech, even if involving a matter of public

concern, was not constitutionally protected.

Consequently, even if the Court ultimately

found that the balance tipped in Voigt’s

favor, qualified immunity would preclude the

claim.

D. Was the Protected Speech a

Motivating Factor for the

Discharge?

Voigt not only fails to demonstrate that

his speech was constitutionally protected, but

App. 151

he also fails to satisfy the second element of

a retaliatory discharge under § 1983, which is

to show that his protected speech was the

motivating factor behind the Defendants’

decision to discharge Voigt. See Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977); Erickson v. Pierce

County, 960 F.2d 801, 804 (9th Cir. 39323..°"

*7 In Erickson, the plaintiff was a

former employee in the county prosecutor’s

office. She had a romantic relationship with

the former county prosecutor, William

Griffies, while serving as his administrative

assistant. When John Landenburg defeated

Griffies as county prosecutor, Erickson

continued working in the office in its family

Support unit. Landenburg later fired Erickson

for her poor attitude, failure to cooperate,

failure to complete assigned tasks, and for

causing continuing morale problems. Erickson

brought a § 1983 action alleging that

Landenburg fired her solely because she had

Supported Griffies during his reelection

campaign. The Ninth Circuit found that

although Erickson satisfied the first element

of her claim (protected conduct), she did not

Satisfy the second. Her list of nine disputed

facts merely Suggested that Erickson was a

Griffies supporter who was terminated, not

that she was terminated because she was a

Griffies supporter. 960 F.2d at 805.

In a similar vein, this Court finds that

although Voigt has shown that the Defendants

disapproved of Voigt’s criticism of the Cramer

App. 152

The plaintiff need Only prove that the

protected speech was a "substantial" factor in

the decision to terminate; it is not necessary

to demonstrate that the dismissal was based

solely on these activities. McKinley, 705

F.2d at 1115; cf. mt. Healthy, 429 u.s. at

285-86.** Furthermore, the plaintiff may rely

and Demoski grievances, he has not

demonstrated that such criticism was the

substantial reason for his termination.

** In Mt. Healthy, the Court articulated

the third step in a retaliatory discharge

claim -- that the defendant employer show that

it would have terminated the employee

regardless of the protected conduct. In its

discussion, the Court rejected the notion that

a plaintiff could prevail simply by showing

that the protected conduct was a substantial

factor in the termination. The Court

explained as follows:

A rule of causation which

focuses solely on whether the

protected conduct played a part,

"substantial" or otherwise, in a

decision not to rehire, could place

an employee in a better position as

&@ result of the exercise of

constitutionally protected conduct

than he would have occupied had he

done nothing. [Such a rule] would

require reinstatement in cases

where a dramatic and perhaps

abrasive incident is inevitably on

App. 153

on circumstantial evidence. Erickson, 960

F.2d at 805.

Voigt has not provided sufficient

circumstantial evidence to raise an inference

that any of the Defendants considered his

comments regarding the Cramer or Demoski

incidents as a _ substantial or motivating

factor in the decision to terminate. He

simply relies on the intent to dismiss letter

to raise that inference because the lettar

mentioned both incidents. He contends that

the Jackson interviews revealing other trans-

gressions by Voigt occurred "after-the-fact"

and immediately before his termination, imply-

ing that they were simply drummed up to give

the minds of those responsible for

the decision to rehire, and does

indeed play a part in that

decision-- even if the same

decision would have been reached

had the incident not occurred.

- [The plaintiff] ought not to be

able, by engaging in such conduct,

to prevent his employer from

assessing his performance re -ord

and reaching a decision not to

rehire on the basis of that record,

simply because the protected

conduct makes the employer more

certain of the correctness of its

decision.

429 U.S. at 285-86.

eee

App. 154

extra substance to the letter. Finally, he

objects to the letter’s reference to

“inappropriate statements to subordinate

employees" as a basis for his discharge

because Savell and Woods also made such state-

ments, as evidence by the Crawford/Perron

affidavit. Docket No. 101, pp. 30-32.

However, the facts show that there were

many reasons for Voigt’s discharge. Even

though the intent to dismiss letter mentions

both incidents, it also catalogs a long list

of other inappropriate behavior. See footnote

1, supra. As the Defendants point out, the

letter refers to the Cramer incident and sub-

sequent written reprimand because the repri-

mand clearly warned Voigt that the administra-

tors expected him to correct such deficient

behavior. Docket No. 112, p. 25. Neverthe-

less, as two subsequent investigations by

Jackson revealed, Voigt continued to exercise

poor managerial judgment and to engage in

divisive and inappropriate behavior. See

relevant facts, Part III-A, supra. The

Defendants correctly note that whether or not

Savell and Woods made inappropriate statements

to subordinate employees is irrelevant.

E. Would the Defendants Have

Discharged Voigt Regardless of His

Protected Speech?

Even if Voigt had provided sufficient

evidence to raise inferences that his speech

was constitutionally protected and that it was

App. 155

a motivating factor behind his discharge,

Voigt’s retaliatory discharge claim would be

thwarted if the Defendants could show by a

preponderance of evidence that they would have

discharged Voigt even if he had not engaged in

the protected speech.” Mt. Healthy, 429 U.S.

at 287. See Hyland, 972 F.2d at 1139 n.2.

The facts in this case reveal that Voigt would

have been fired regardless of his protected

speech.

** Voigt contends that the Defendants

have essentially waived their right to rely on

this argument for purposes of their motion for

partial summary judgment. Docket No. 101, p.

33. He argues that because the Defendants

failed to argue this "harmless error" test,

once Voigt establishes a prima facie case, the

Defendants are precluded from claiming they

Should still prevail on their motion for

summary judgment because Voigt would have been

fired anyway. Id. at 33. The Defendants do

not address Voigt’s contention oor the

"harmless error" test in their reply brief.

Docket No. 112. It is not clear whether the

Court can apply the test sua sponte. One

could argue that the Ninth Circuit Court of

Appeals has declined to consider the "harmless

error" test when the defendants failed to make

the argument. See Hyland, 972 F.2d at 1139

n.2; but see Mt. Health, 429 U.S. at 287

(remanded for consideration of harmless error

test). This Court will follow Mt. Healthy and

apply the test sua sponte.

App. 156

The situation is analogous to that in Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977). Doyle was a teacher who

also served as president of the Teachers’

Association in 1969 for a one-year term and

then as a member of the executive committee

for a succeeding year. Apparently, there was

some tension between the Association and the

Board of Education during this time. During

this time, Doyle was involved in several

incidents, including: 1) engaging in an

argument with another teacher culminating in

the other teacher’s slapping Doyle; Doyle

refused to accept an apology, insisting on

punishment, and both teachers were suspended;

this resulted in a walkout by other teachers;

2) engaging in an argument with cafeteria

employees over the amount of spaghetti he

received; 3) referring to students in a

disciplinary complaint as "sons of bitches";

4) making an obscene gesture to two girls when

they failed to obey his commands as cafeteria

supervisor; and finally 5) reporting to the

local radio station the contents of the prin-

Cipal’s memorandum to teachers relating to

teachers’ dress and appearance.

The Board refused to rehire the non-

tenured Doyle, stating that Doyle had shown "a

notable lack of tact in handling professional

matters which leaves much doubt as to

[Doyle’s]} sincerity in establishing good

school relations." The Board specifically

cited the radio incident and Doyle’s use of

App. 157

obscene gwstures. The district court con-

cluded that Doyle’s disclosure to the radio

station was protected speech and that the

Board’s statement revealed that the speech

played a substantial part in the decision not

to rehire Doyle; therefore he was entitled to

reinstatement with back pay. The Supreme

Court disagreed with the judgment and remanded

for consideration of whether the Board had

shown that it would have fired Doyle even in

the absence of protected speech. The Court

felt that the court should formulate a test of

causation to distinguish between a result

caused by a constitutional violation and one

not so caused. The Court disagreed with the

district court’s approach because "it would

require reinstatement in cases where a drama-

tic and perhaps abrasive incident is inevit-

ably on the minds of those responsible for the

decision to rehire, and does indeed play a

part in that decision-- even if the same deci-

sion would have been reached had the incident

not occurred." 429 U.S. at 285. See footnote

28, supra.

As mentioned already, the intent to

dismiss letter listed many incidents revealing

a lack of tact and professionalism on Voigt’s

part that is similar to the situation in Mt.

Healthy. The written reprimand to Voigt and

the subsequent investigations by Jackson

evidence Voigt’s shortcomings that would have

justified his termination regardless of his

protected speech. As the intent letter

App. 158

stated, "We believe that, given your past

performance, any one of the above cited

reasons would justify your termination.

Additionally, please be advised that the

specific instances set forth herein and

justifying your termination are intended as

examples only and are not necessarily all

inclusive." Docket No. 101, Ex. Q-l, p. 4.

Consequently, under the "harmless error" test

of causation, there is a preponderance of

evidence that Voigt would have been fired even

if he had not criticized the Cramer and

Demoski incidents.

CONCLUSION

Voigt’s § 1985(3) claim appears to be

precluded by qualified immunity because the

law was not so cizarly established that a

reasonable official would realize that dis-

criminating against nonresident applicants for

public employment would be invidious discrimi-

nation under § 1985(3). Even if it were and

qualified immunity did not apply, Voigt’s

claim would be dismissed because Voigt has not

produced sufficient evidence to raise an

inference that a conspiracy existed in the

first place or that its purpose was to invidi-

ously discriminate against a protected class.

Voigt’s § 1983 claims would also be

precluded by qualified immunity because the

law was not so clearly established that a

reasonable official would realize that dis-

App. 159

charging Voigt for his criticism of the Cramer

and Demoski incidents would violate § 1983.

A reasonable official would conclude that

Voigt’s speech was not’ constitutionally

protected; it did not substantially involve

any matters of public concern, and to the

extent it did, the government’s interest in

promoting an effective workplace outweighed

Voigt’s First Amendment rights. Even if

qualified immunity did not apply, the retali-

atory discharge claims would be dismissed

because Voigt has failed to show that the

speech was a motivating factor in the

Defendant’s decision to discharge Voigt, and

a preponderance of evidence reveals that

Defendants would have fired Voigt regardless

of the speech.

IT IS THEREFORE ORDERED:

The Court GRANTS Defendants’ motion to

accept the filing of the reply memorandum in

excess of the permitted 25 pages at Docket No.

hii.

Pending oral argument, the Court

TENTATIVELY GRANTS Defendants’ motion at

Docket No. 87.

January 31, 1994 /s/ James K. Singleton, Jr.

DATE HONORABLE JAMES K.

SINGLETON, JR.

United States District

Court Judge

Anchorage, Alaska

App. 160

Copies to:

Wickwire

Koziol

2-2-94 tpb

App. 161

APPENDIK J

Supreme Court Rule 10 provides:

Considerations Governing Review

on Certiorari

Review on a writ of certiorari is not a

matter of right, but of judicial discretion.

A petition for a writ of certiorari will be

granted only for compelling reasons. The

following, although neither controlling nor

fully measuring the Court’s discretion,

indicate the character of the reasons the

Court considers:

(a) a United States court of appeals

has entered a decision in conflict wich

the decision of another United States

court of appeals on the same important

matter; has decided an important federal

question in a way that conflicts with a

decision by a state court of last

resort; or has so far departed from the

accepted and usual course of judicial

proceedings, or sanctioned such a

departure by a lower court, as to call

for an exercise of this Court’s

supervisory power;

(b) a state court of last resort has

decided an important federal question in

a way that conflicts with the decision

of another state court of last resort or

App. 162

of a United States court of appeals;

court of appeals has decided an

important question of federal law that

has not been, but should be, settled by

this Court, or has decided an important

federal question in a way that conflicts

with relevant decisions of this Court.

A petition for a writ of certiorari is rarely

granted when the asserted error consists of

erroneous factual findings or the

misapplication of a properly stated rule of

law.

App. 163

APPENDIX K

(Voigt 3-93 Deposition Exhibit K)

MEMORANDUM January 17, 1991

TO: Presiding Judge Savell

FROM: J. Burk Voigt /s/ JBV

Clerk of Court

SUBJECT: Clarification of relationship

I am confused by your recent memos to me

and feel that it is important to address what

I see as the development of a very serious

impediment to our relationship Tm your memo

of January 15, 1991, you state that you are

"committed to open communication among and

between all levels of the court System staff."

You further write that you are "also committed

to eliminating many of the serious shortcom-

ings noted in the Sipes report." And, yet, in

this same memo, you repeat what you have done

to me in a number areas, you reprimand me for

conduct ("a real blunder") that you haven’t

even given me the courtesy to address.

I am trying, and, even before you became

the presiding judge, I have tried, to estab-

lish communication with you. I have come in

mornings. I have copied all relevant corre-

spondence to you. I have sought your opinion

App. 164

in writing on numerous matters. I have agreed

to meet with you regularly whenever and where-

ever it would be convenient for you. And

despite my efforts, the most I have gotten are

fleeting comments from you that we will talk

later as you rush from one engagement to

another. I certainly understand the pressures

you are presently under trying to be a judge,

the presiding judge, and the chief administra-

tor for the district. This is why I tried to

sit down and talk to you in November and again

in early December to ascertain your

expectations of me. All of my attempt at

communication with you have been to no avail.

While I can proceed with courthouse

relations as they were under the former pre-

siding judge, I am perplexed by your state-

ments about improving communications, work

relationships and courthouse problems. These

problems do not go away by not talking about

them. You have demeaned my entire staff by

your repeated assertions of morale problems in

my office without specification. While your

target may have been me personally, your

indiscriminate and general comments deny the

tremendous accomplishments my office has made

with a significant reduction in personnel, an

increase in responsibilities, an absence of

any real automation support and a total fail-

ure of leadership from either the former

presiding judge or ACA. The bias from which

so many on the fourth floor suffer is revealed

by the forced reading of Sipes report to imply

App. 165

that problems in my office are unique from

problems found generally in the entire court-

house. My office was not even mentioned by

Ms. Sipes. A fair sampling of my staff (or

even a total interview) has never been done

despite my repeated invitations.

So many decisions seem to be based on

nothing more than idle courthouse gossip. I

am tired of being on the defensive for dealing

with personnel problems too long ignored. The

hours and days of my own time that I have

given attempting to improve the operation of

my office, as well as the entire courthouse,

seem to have been totally misspent. As the

ACA pointed out after his very critical evalu-

ation of my first year’s performance (to which

no one rose in my defense), nobody asked me to

do these extra things. Evidently I was mis-

guided. Criticism seems plentiful, support

rare.

Your distrust of me is evidenced by your

repeated desire to take issue with my deci-

sions within the Clerk’s Office. For example,

the decision to have orders and ‘judgments

processed within two days seems to particu-

larly cause you problems, and yet this deci-

sion was a product of my supervisory staff's

determination that it is in our best interest

to promptly process these documents to reduce

the time spent on inquires of status alone.

You have apparently decided without input that

this decision was made in a despotic manner in

App. 166

disregard of the needs of my clerks. A true

concern for my personnel would be better

evidenced by a determination to secure more

personnel or automation to allow them to

better do the professional job they are striv-

ing to do. My past memos about personnel and

automation needs have gone, and, evidently

still are, going unheeded.

I have no problems with ACA matters being

referred to Mac Gibson. The problem is that

tasks and projects that were to have been

completed months, if not years, ago, haven’t

been done. I think that it is this frustra-

tion that leads people both in Anchorage and

Fairbanks to my door. I have been doing much

of the ACA’s work since I got here. Your

apparent distrust that I will do "something",

anything, beyond my station makes me wonder

why you sent me instead of Mac to the recent

ACA meeting. The question goes begging that

if Mac is able to teach you as the new presid-

ing judge so much, why are we "accepting his

resignation"?

As I began, I am confused. Why I am

considered by you to be the bad guy, I don’t

know. I don’t know of anything that I have

done to give you cause. Given this state, I

am reluctant to exercise any real initiative.

I have no problems restricting my scope to

only those matters that directly affect the

Clerk’s Office. I would appreciate not being

placed in the awkward position of representing

App. 167

the district with Administration given your

weariness of my abilities.

Please be assured that your displeasure

with me has been adequately expressed. While

I am not sure of the specific course of con-

duct you are prohibiting, I will make every

effort not to repeat it.

App. 168

APPENDIX L

MEMORANDUM February 25, 1992

TO: Roberta Demoski

INFO: Chief Justice Rabinowitz

Stephanie J. Cole, Deputy

Administrative Director

Karrold Jackson, Personnel Director

Ron Woods, Area Court Administrator

J. Burk Voigt, Clerk of Court

FROM: Presiding Judge Savell /s/ RDS

SUBJECT: Informal Grievance

(RECEIVED March r 1992, Office of

Administrative Director, Alaska Court System)

On February 19, 1992, by fax transmission

you appealed the February 14, 1992, decision

of Ron Woods, ACA, denying your informal

grievance arising from your recent applica-

tions for promotion/transfer from the Galena

court to fill vacancies in the Fairbanks

Clerk’s Office. On February 21 and 24, 1992,

you consented to an extension of the two

working day time period for my decision.

Accompanying this memorandum is my

written decision. For the reasons stated

therein, I have found your grievance to be

valid.

App. 169

RDS:bjo

Encl.

GRIEVANCE DECISION

Roberta L. Demoski [Demoski], Clerk of

Court in the Galena District Court, has

informally grieved the decision of the

Fairbanks Clerk of Courts passing her over for

hire in the Fairbanks court for the position

of Court Clerk I in the Records Department.

In asserting her grievance, Demoski has also

complained of statements made in the

application and interview process which she

underwent just prior to applying for the Court

Clerk I position. In that application and

interview process, she unsuccessfully applied

for the position of Court Clerk II in the

Fairbanks Criminal Department.

The Grievance

Demoski complains that, in discussing her

unsuccessful bid for the Court Clerk II

position with Burk Voigt [Voigt], Voigt

justified his selection of the successful

candidate on the basis of factors other than

qualifications, length of service, and past

performance evaluations. Specifically, she

claims that Voigt explained that the

successful candidate was selected because she

had an outgoing personality. Demoski notes

App. 170

that in a previous interview she had been told

that a clerk from the Records Department was

going to be applying for the upcoming opening

in the Criminal Department and that this would

create a vacancy in the Records Department.

This, in fact, is what happened when the

Criminal Department vacancy was filled with

the applicant from the Records Department.

This is the same applicant said by Voigt to

have been selected, in part, because of her

personality.

Demoski also complains that in each of

her Fairbanks interviews the interviewers

seemed overly concerned about being able to

supervise a clerk from a bush court. She

complains that this concern was unjustified in

her case and shows a discriminatory

predisposition against court system applicants

seeking to transfer from bush locations.

Demoski complains that her experience,

qualifications, length of service, and

commitment to the court system were ignored.

According to Demoski, Voigt told her that

performance evaluations are an inaccurate

indicator of an employee’s performance because

a supervisor who likes an employee will give

false evaluations.

Demoski’s grievance also identifies what

she believes to be another discriminatory

attitude toward bush clerks. According to

Demoski, Voigt pointed to previous experience

App. 171

with a clerk froma rural court who had lasted

only two weeks on the job. He cautioned that

Demoski might be surprised at being unable to

keep up with the pace in Fairbanks.

Demoski recounts that in her discussions

with Voigt after she was not selected for the

Court Clerk II position, Voigt explained that

it was his desire to start new Fairbanks

clerks in the Records Department so that they

could be transferred and promoted from there.

Demoski notes that this is consistent with

Voigt’s earlier statement that there would be

a vacancy in the Records Department after the

Criminal Department position was filled.

Voigt’s statements suggest that the decision

to hire Dana Evans [Evans] into the Criminal

Department position was made before the formal

application process even began.

Demoski complains that, while she was

twice told how qualified she was for hire into

the Records Department, these statements were

only made in the context of her previous

unsuccessful interviews. When the interview

for the Records Department vacancy came, the

position was given to an employee from outside

of the court system and outside of the State

of Alaska.

The Area Court Administrator’s Response

This matter was first grieved to Ronald

Woods, the Area Court Administrator. In the

App. 172

process of his investigation of the grievance,

Woods received a memorandum from Voigt in

answer to Demoski’s grievance. Voigt’s

memorandum asserted, with no detail or further

explanation, that the selection of Evans into

the position of Court Clerk II in the Criminal

Department was based upon her experience,

education, and personality, which he called

"important considerations." Likewise, in

explaining his choice of Margaret Crawford

[Crawford] for the position of Court Clerk I,

a position which found Demoski as the only

applicant from within the court System, Voigt

explained to Weods that three unidentified

applicants were nominated and that Crawford

was hired because of "the significant

contribution a person with [her] legal

experience and education as well as her first

hand experience with our court and judges

could make."

Significantly, Voigt did not dispute

Demoski’s rendition of their conversations.

His only other substantive comment in

discussing Demoski’s unsuccessful attempts to

obtain positions in the Fairbanks Clerk’s

Office cast doubt upon her interest in the

position, implying instead that her sole

motivation is to be able to move to Fairbanks.

On February 14, 1992, the Area Court

Administrator denied Demoski’s grievance. His

denial recites that he conducted a “thorough,

independent, and objective investigation" to

App. 173

determine if any impropriety or discrimination

occurred in the appointment process. He

concluded that there was neither personnel

rule violation nor any discriminatory act. He

further concluded that the Alaska Court

Systems’ firm commitment to affirmative action

standards and goals was not compromised. I

conclude otherwise.

Discussion

A hallmark of non-discriminatory

employment practices is the use of objective

standards by which the relative qualifications

of persons for a specific job can be

evaluated. Voigt first ran afoul of these

standards in his explanation for his selection

of the Court Clerk II replacement. He

stressed that his decision was based not upon

qualification, experience, and length of

service, but upon education and personality.

He gave no explanation, nor did the Area Court

Administrator apparently examine, whether

these criteria were proper or how

consideration of these criteria rendered Evans

more qualified for the Court Clerk II

position. As such, comparison of their

applications is in order.

Demoski’s application demonstrates

experience and a familiarity with all aspects

of the operation of the Clerk’s Office in

Galena which handles most of the types of

matters found in the Fairbanks Clerk’s Office,

App. 174

albeit in less volume. Demoski has two and a

half years of experience in a court clerk’s

office and ten years in the clerical field

generally. Evans’ last job with applicable

skills before her 15 months of employment with

the court system was in 1984-85. Demoski’s

application claims typing at 60 words per

minute; Evans’ shows 55-60. Measuring their

qualifications under objective standards,

Demoski already did more of and was more

experienced at precisely what the job

description called for.

According to Voigt, however, the decision

was made based upon education and personality.

As for education, Demoski and Evans both had

college credits but no degree. Demoski had

studied business and contract law; Evans had

taken business and education courses. As will

also be discussed regarding the selection of

Crawford, the measure of one’s qualifications

for a particular position, be it Court Clerk

II or Court Clerk I, is not one’s potential to

hold other jobs in the future or one’s past

(and laudable) educational pursuits that do

not bear upon the performance requirements for

the specific job.

More troubling, however, is the

explanation, given more than one time, that

the successful applicant for the Court Clerk

II position was chosen for her outgoing

personality. Whether intentional or not, this

use of personality as a determining factor

App. 175

cannot withstand challenge. While neutral on

its face, this attribute is highly subjective

and would have an adverse impact upon Alaska

Natives generally. Alaska Natives are found,

as a culture, to be more reticent, subdued,

and therefore less likely to have the outgoing

personality sought by Voigt. For this reason

Woods’ conclusion that the court system’s

affirmative action concepts were not

compromised is in error.

Equally troubling are other of Voigt’s

statements. As Demoski notes, Voigt’s earlier

statement that a vacancy in the Criminal

Department would result in a vacancy in the

Records Department gives rise to an inference

that the application process was a sham and

that Evans’ selection to fill the position was

a foregone conclusion. There was no evidence

offered by Voigt, nor does it appear that

evidence was sought or obtained by Woods, to

rebut this inference. Voigt was entitled to

consider Evans’ experience in the Records

Department in evaluating her qualifications

for the Court Clerk II position; however, he

cannot use the Records Department as a

prerequisite to becoming a Court Clerk II.

Pocusing upon the Court Clerk I position,

the only explanation Voigt has given for his

selection was his expectation that Crawford

could make a significant contribution"

because of her "legal experience and education

as well as first-hand experience with our

App. 176

court and judges." As previously noted, under

the court system’s hiring procedures, the test

for selection is not one’s future potential.

Voigt was unjustified in concluding that

because Crawford had been to law school and

had worked on the fourth floor for a superior

court judge, that she was most qualified for

an entry level Court Clerk I position in the

Records Department.

It is apparent that Crawford's education

could not have been the main reason she was

selected. After all, Evans had been selected

over Crawford and Demoski for the Court Clerk

II position. Whatever deemed Evans more

qualified than Crawford and Demoski could not

have been her education and experience,

because Crawford had more education and

Demoski had more experience. I have attempted

without success to see what qualifications

Evans had that both Crawford and Demoski

lacked. I could find none.

I have compared Crawford’s and Demoski’s

respective applications and measured them

against the position description to determine

in which of the job’s requirements Crawford

stood superior to Demoski. I could find none.

Examination of Crawford's and Demoski’s

applications and the position description

leads to the conclusion that Voigt’s decision

cannot be upheld under our _ personnel

practices.

App. 177

The Court Clerk I position involves

standardized clerical work under the direct

supervision of a higher level clerical

employee. The Court Clerk I does not

Supervise others. It is an entry level

position performing the more standardized

clerical functions in connection with

processing case files. Unusual problems or

questions are generally referred to a

superior.

There is little complexity in the work,

as it fits within well-defined practices and

policies. There is little independent

judgment involved. The procedures and

directions are specifically defined within the

limits of established policy and procedure.

Important qualifications include

knowledge of current office procedures, skill

in filing and typing, abilities and experience

in standard clerical work, knowledge of court

procedures and the operation of the Clerk’s

Office, a high school diploma, and a year of

general office clerical work experience.

Against these qualifications must be

measured Demoski’s application and that of

Crawford. Both applicants have education over

and above the high school diploma. Crawford

has a law degree. Demoski lists her ability

to operate every type of machine found within

the court system; Crawford lists none.

Demoski types 60 words per minute; Crawford

App. 178

only 45. Demoski lists the specific duties in

her current job which match and even exceed

those for the position she was seeking;

Crawford lists none, although she can be

assumed to be familiar with court rules of

procedure. Demoski shows ten years of

clerical experience, capped most recently with

two and a half years as Court Clerk in Galena.

In the last two and a half years Crawford has

been a law clerk, a student, anda practicing

lawyer.

Demoski was and remains fully capable to

enter into the job and be immediately able to

perform most of its functions. The same

cannot be said for Crawford, whose application

indicates she performed clerical duties

incidental to her professional or technical

duties. Voigt drew a negative inference from

Demoski’s desire to relocate to Fairbanks.

Ironically, this was also the reason given by

Crawford for leaving her last employment.

Conclusion

Based on the foregoing, I conclude that

Demoski’s grievance is valid. Qualifications

for the job at issue were ignored for what

were considered more lofty or valuable

characteristics. Improper standards were

applied, demonstrating a presumption that

clerks from small rural courts cannot, as a

rule, meet the demands of the Fairbanks

Clerk's Office. Voigt imposed an unwritten

App. 179

and subjective personality requirement that is

potentially discriminatory in its application.

The merit system and performance evaluation

process, the backbone of a fair personnel

system, appears to have been discounted.

Margaret Crawford was my law clerk. I am

fond of her and admire her abilities. I am

pleased that she returned to Fairbanks. But

those factors can have no bearing on the

analysis of Demoski’s grievance.

Because Voigt relied upon improper crite-

ria in his treatment of Demoski, participated

in a process giving an appearance that the

selection was a foregone conclusion, applied

impermissible factors, and ignored the prefer-

ence due Demoski under Personnel Rule 3-13-02,

the grievance is upheld. A remedy must be

fashioned to give Demoski a transfer to the

Fairbanks Clerk’s Office, into the first

available position for which she is qualified.

DATED at Fairbanks, Alaska, this 25 day

of February, 1992.

/s/ Richard D. Savell

RICHARD D. SAVELL

Presiding Judge

App. 180

APPENDIX M

FRANK S. KOZIOL, ESQ.

Attorney at Law

618 Christensen Drive

Anchorage, Alaska 99501

(907) 258-7706

Counsel for Defendants Richard D.

Savell, Ronald J. Woods, Karrold

Jackson, and State of Alaska

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

J. BURK VOIGT,

Plaintiff,

Case No. F92-012 Civil

vs.

Affidavit of

RICHARD D. SAVELL, Etta L. Burgess

RONALD J. WOODS,

WOODS, KARROLD

JACKSON, and

STATE OF ALASKA,

tll i i di eee

Defendants.

App. 181

STATE OF ALASKA )

FOURTH JUDICIAL DISTRICT )

Etta L. Burgess, being first duly sworn

upon her oath, deposes and states:

1. My name is Etta L. Burgess and I am

& Transcriber II, Alaska Court System,

Fairbanks.

2. I prepared the attached memorandum

dated May 28, 1992.

Je The facts set forth in this

memorandum are true and accurate to the best

of my recollection and the opinions set forth

in the memorandum are my own opinions.

4. FURTHERMORE, your affiant saith

naught.

/s/ Etta Burgess

(Name )

SUBSCRIBED AND SWORN TO before me this

lst day of June, 1992.

/s/ Donna Holleman

Notary Public in and for

Alaska

My Commission

expires: upon termination

App. 182

MEMORANDUM May 28, 1992

TO: c.S. Christensen III

Staff Counsel

FROM: Etta L. Burgess /s/ ELB

Transcript Coordinator

SUBJECT: Request for affidavit information

As you requested in our phone conversation

today, this is what I recall of a supervisor's

staff meeting called by J. Burk Voigt sometime

in the month of April 1991:

It was during such meeting that he was

bringing us up to date regarding the status of

the filling of the position of the Area Court

Administrator. Comments made by him were very

disparaging* both toward Judge Savell and

Judith Cramer. He surmised* that Judith was

being considered/selected because of her

acquaintance with Art Snowden and that because

of this she would have an "in" with

administration thus putting Fairbanks in a

favorable light regarding needs for the Fourth

District. His insinuations continued along

the same line when mentioning that Judge

Savell and Justice Rabinowtiz were

entertaining her with lunch and personal

attention that hadn’t been afforded the other

candidates.

Although I don’t recall exact language used by

him nor all that was said, which was

effusive*, I do recall his comments about

App. 183

Judge Savell and the situation were

belittling* and vindictive*. I believed then

and still do now, that however strongly he

felt about it they were comments completely

out of line in the setting and to whom they

were being made.

*Words I have intentionally selected

App. 184

APPENDIX N

FRANK S. KOZIOL, ESQ.

Attorney at Law

618 Christensen Drive

Anchorage, Alaska 99501

(907) 258-7706

Counsel for Defendants Richard D.

Savell, Ronald J. Woods, Karrold

Jackson, and State of Alaska

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

J. BURK VOIGT,

)

Plaintiff, )

) Case No. F92-012 Civil

vs. )

) Affidavit of

RICHARD D. SAVELL, ) JO-ANN GRIMALDI

}

)

}

)

RONALD J. WOODS,

WOODS, KARROLD

JACKSON, and

STATE OF ALASKA,

Defendants.

App. 185

STATE OF ALASKA )

ss.

FOURTH JUDICIAL DISTRICT )

JO-ANN GRIMALDI, being first duly sworn

upon her oath, deposes and states:

1. My name is JO-ANN GRIMALDI and I am

the IN-COURT CLERK SUPERVISOR.

y I prepared the attached memorandum

dated MAY 28, 1992.

3. The facts set forth in this

memorandum are true and accurate to the best

of my recollection and the opinions set forth

in the memorandum are my Own opinions.

4. FURTHERMORE, your affiant saith

naught.

/s/ Jo-Ann Grimaldi

(Name )

SUBSCRIBED AND SWORN TO before me this

ist day of June, 1992.

/s/ Deborah M. Kolland

Notary Public in and for

Alaska

My Commission

expires: upon termination

App. 186

MEMORANDUM

May 28, 1992

To: Cc. S. Christensen III

Staff Counsel

From: Jo-Ann Grimaldi /s/ JG 6-2-92

Supervisor, In-Court Clerks

Subject: Affidavit Information; Voigt

Lawsuit

Per the Savell/Crammer [sic]/Mills incident of

1991, I will attempt to paraphrase just what

I can recall of the information given to me by

Burk Voigt. The information I will list was

more than likely told to me in a general staff

meeting, but there is a slight chance that I

was told some facts in other conversations

with Mr. Voigt.

All supervisors were called to a staff meeting

in the juryroom for courtroom 4c. This

meeting was called to inform us of the rocky

situation that Judge Savell had put the

Fairbanks Court System in, ie, a possible

lawsuit from Mr. Don Mills.

We were all aware of who the applicants were

for the ACA position, we were told via memo

that Judith Cramer had been hired.

Burk Voigt had informed us that Judge Savell

had been in California wining and dinning

[sic] Ms. Cramer. Burk informed us that the

App. 187

hiring of Ms. Cramer was against the advise

[sic] of himself and some of the Fairbanks

judges. Burk stated that the judges who had

worked for Ms. Cramer found her unqualified

for the job and they would not recommend her

for the Fairbanks position. Statements were

made to the effect that Chief Justice

Rabinowitz ordered Judge Savell to hire Ms.

Cramer, it was told that Justice Rabinowitz

had taken Ms. Cramer to lunch and found her to

be the perfect applicant for the job.

I am unsure if it was at a meeting, but I have

recollection of being told that Donald Mills

would have been the best person for the ACA

job, because Ms. Cramer would only unite all

the female judges against the male judges and

as it was there was too much friction already,

especially on the fourth floor.

At some point later we again had a meeting and

we were told of the "fiasco" that Judge Savell

had caused, we were told that Ms. Cramer

declined the job after accepting it. Mr.

Mills was then hired, Ms. Cramer again called

and said she wanted the job, Judge Savell was

told by Art Snowden to re-hire her and un-hire

Mr. Mills. It was said that the hiring on a

Friday and firing on a Monday of Don Mills was

the most unethical, unprofessional thing that

was ever done. We were told that if we as

supervisors had ever done such a thing we

would be suspended or fired. There were no

words to fully express just how horrible this

App. 188

deed was, pure shame was brought to the

Fairbanks Court System. We were told that Mr.

Mills had quit his job, so had his wife, sold

his home, there had even been a farewell party

from the community, we could expect a lawsuit

to be filed, for breach of contract. The

State would end up paying for the humiliation

caused to Mr. Mills. The handling of the

situation by Savell showed total lack of

feeling for Mr. Mills, caused the Fairbanks

Court System to become a laughing stock,

showed us to be totally unreliable in anything

we did or said. No-one would ever trust us

again.

App. 189

APPENDIX O

FRANK S. KOZIOL, ESQ.

Attorney at Law

618 Christensen Drive

Anchorage, Alaska 99501

(907) 258-7706

Counsel for Defendants Richard D.

Savell, Ronald J. Woods, Karrold

Jackson, and State of Alaska

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

J. BURK VOIGT,

)

Plaintiff, )

) Case No. F92-012 Civil

vs.

) Affidavit of

RICHARD D. SAVELL, Brenda J. Richard

RONALD J. WOODS,

WOODS, KARROLD

)

JACKSON, and )

)

STATE OF ALASKA,

Defendants.

)

STATE OF ALASKA )

FOURTH JUDICIAL DISTRICT )

Brenda J. Richard, being first duly sworn

upon her oath, deposes and states:

1. My name is Brenda J. Richard and I am

the Fairbanks Jury Clerk

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