Opposition Brief — Rendish v. City of Tacoma

FILED ||

No. 97-1735

, MAY 90 1998

)FFICE OF THE CLERK

In The ee

Supreme Court of the United Siates

+

October Term, 1997

KIMBERLY RENDISH,

Petitioner,

VS.

CITY OF TACOMA; RAY C. CORPUS, City Manager for the

City Manager for the City of Tacoma, in his individual capacity,

ROBIN JENKINSON, City Attorney for the City of Tacoma,

in her individual capacity; JOHN KOUKLIS, Chief Assistant

City Attorney for the City of Tacoma, in his individual

capacity,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JAMES W. FELTUS

Counsel of Record

McGAVICK GRAVES, P.S.

K. MICHAEL JENNINGS

Attorneys for Respondents

1102 Broadway, Suite 500

Tacoma, Washington 98401

(253) 838-2860

146660 (800) 274-3321 * (800) 359-6859 aft late

A DIVISION OF COUNSEL PRESS

ervices, inc.

TABLE OF CONTENTS

pee ae SS 5 eh cs eso to ee a ee

Opinions and Orders Below «.... 2. ....ccacccccss

Constitutional and Statutory Provisions Involved ....

Pema eee... cc ee SS

A.

B.

Procedural Backsrownd ...... 2.0 iccssccess

Puree SONNE so 5k ko 344 coe

Reasons for Denying the Writ ....................

I.

Il.

Il.

The United States Court Of Appeals For The Ninth

Circuit Did Not Enter A Decision In Conflict With

Decisions Of Another United States Court Of

Appeal On The Same Important Matter. ......

The United States Court Of Appeals For The Ninth

Circuit Did Not Decide An Important Question

Of Federal Law That Has Not Been Settled By

The Supreme Court And Did Not Decide Such A

Matter In A Way That Conflicts With Relevant

Decisions Of The Supreme Court. ...........

Several Questions Rendish Presents In Her

Petition Were Not Addressed Below And This

Court Should Decline To Accept Such Questions

Pee SN 8a hs BURST cba dA seek beeen

Be ear ea pee ee other VP er lea My TONER

il

Contents

Page

TABLE OF CITATIONS

Cases Cited:

American Passage Media Corp. v. Cass Communications,

Inc., 750 F.2d 1470 (9th Cir. 1985) ............. 7,8

Belk v. Town of Minocqua, 858 F.2d 1258 (7th Cir.

SOD acca sina castntzbickestess eee 7

Connick v. Myers, 461 U.S. 138 (1983) ............ 8, 9, 10

Day v. South Park Indep. Sch. Dist., 768 F.2d 696 (Sth

Cir. 1985), cert denied, 474 U.S. 1101 (1986) .... 7

Graybo v. Indep. Sch. Dist. No. 1-008, 86 F.3d 1166 (10th

oe, Bpeetrre pr re een peg eer 6, 7

Grigley v. City of Atlanta, 136 F.3d 752 (11th Cir. 1998)

g én ab banweecbeachnudee Oe NS kESANV EEO ReSebs 6

Hoffmann v. Mayor, Councilman and Citizens of City of

Liberty, 905 F.2d 229 (8th Cir. 1990) ............ 7

McDonald v. Smith, 472 U.S. 479 (1985) .......... 10

National Wildlife Federation v. Burlington Northern R.R.,

Inc., 23 F.3d 1508 (9th Cir. 1994) .............. 11

Pickering v. Bd. of Educ., 391 U.S. at 568 .......... 9, 10

iii

Contents

Page

Rankin v. McPherson, 483 U.S. 378 i.) een 8,9

Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir.

ocenal EEE POE UD Laie ag aes Np eae 6, 7

San Filippo v. Bongiovanni, 30 F.3d 424 (3rd Cir. 1994),

cert denied, 513 U.S. 1082 RE cicicigs one gaa 7,8

Schalk v. Gallemore, 906 F.2d 49] (10th Cir. 1990) .. 7

Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107

F.3d 1220 (6th Cir. 1997), cert denied, __ U.S. Sen

Cap cae ag sah RD an 6

Waters v. Churchill, 511 U.S. 661 LIPO 6 iweseexi5 8

White Plains Towing Corp. v. Patterson, 991 F.2d 1049

(2nd Cir. 1993), cert denied, 510 U.S. 865 ....... 7

Statutes Cited:

ee 2

ce Se aan ne a l

United States Constitution Cited:

oo ete et SES ea ee 1, 6, 7,9, 10

l

OPINIONS AND ORDERS BELOW

Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. 1997).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

First Amendment

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a

redress of grievances.

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

Shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the

District of Columbia.

2

STATEMENT OF THE CASE

A. Procedural Background

The case at hand was initially filed by Petitioner, Kimberly

Rendish (“Rendish”), in the United States District Court for the

Western District of Washington at Tacoma on August 21, 1996.

On September 2, 1996, Rendish filed a Motion for Preliminary

Injunction Reinstating Petitioner to Employment and

Prohibiting Retaliatory Adverse Action during the pendancy of

this action. On October 10, 1996, the District Court denied

Rendish’s motion for preliminary injunctive relief and denied

her Motion for Reconsideration on October 28, 1996. The

District Court found that Rendish’s likelihood of success on

the merits was weak and that she had failed to establish non-

economic damages.

Rendish filed a Notice of Appeal on October 25, 1996,

appealing the District court’s decision under 28 U.S.C.

§ 1292(a)(1). In spite of the interlocutory appeal, the case

continued toward trial until a stay was issued by the District

Court on November 12, 1997. The United States Court of

Appeals for the Ninth Circuit, in a unanimous opinion, affirmed

the decision of the District Court on August 20, 1997, holding

the District Court correctly concluded that Rendish’s showing

of likelihood of success on the merits was not strong and that

the District Court properly determined that Rendish had not

adequately demonstrated irreparable injury. The United States

Court of Appeals for the Ninth Circuit also determined that the

District Court properly analyzed the case when it held that in

order for Rendish to pursue her claim that she must show that

her claim involves a matter of “public concern” and that the

“public concern”, on balance, outweighs the City’s interest in

maintaining an effective and efficient City Attorney’s office.

On August 29, 1997, Rendish filed a Petition for Rehearing

Se SO ae eee ee ee

3

and Suggestion for Rehearing en banc with the United States Court

of Appeals for the Ninth Circuit. Her Petition for Rehearing and

Suggestion for Rehearing en banc was denied on January 26, 1998.

The instant case is scheduled for trial in the United State District

Court for the Western District of Washington on December 28,

1998.

B. Factual Background

Rendish began her employment with the City of Tacoma as

an intern while she was still attending law school. Following her

graduation, in 1988, Rendish, in 1990, accepted a position with

the City of Tacoma in the City Attorney’s Office, Criminal Division,

as an Assistant City Attorney I. On August 16, 1996, Rendish was

terminated from her Assistant City Attorney I position because of

her conduct which greatly compromised the effectiveness and

efficiency of the delivery of services of the City Attorney’s office.

The problems created by Rendish within the City Attorney’s

office stemmed from the disruption, loss of confidence and trust,

internal scheduling difficulties, and supervisory obstacles created

by a law suit filed on August 8, 1996, by Rendish, in the Superior

Court for the State of Washington. In her suit, Rendish named as

defendants, the City of Tacoma, her immediate supervisor, the City

Attorney, the Chief Assistant City Attorney, a sitting Municipal

Court judge, the immediate former City Attorney, and a former

Assistant Attorney. Her suit, for a variety of reasons, compromised

the effectiveness and efficiency of the City Attorney’s Office, and

undermined the trust and confidence necessary to effectively serve

as an Assistant City Attorney. (DN 16 and 17).'

The proper functioning of the Criminal Division of the City

Attorney’s office requires that the attorneys work closely with one

1. DN refers to the District Court docket number.

4

another, have confidence in one another’s capabilities, freely

exchange ideas and suggestions, fill in for one another with

little notice, attend court in all Municipal courts, and cooperate

with one another in a manner that promotes the objectives of

the City Attorney’s office. Rendish’s suit undermined these

objectives and reflected that Rendish had lost trust and

confidence in the City Attorney and her supervising attorney.

(DN 17).

Scheduling problems within the City Attorney’s Office were

created because Rendish sued a sitting Municipal Court Judge,

Ralph Turco. (DN 16). Judge Turco presides over one of three

Tacoma Municipal courts. Because Rendish filed suit against

Judge Turco, Judge Turco would have been forced to recuse -

himself from any case that involved Rendish. This is the case

because he must maintain the appearance of fairness within his

court. It was thus impossible for him to preside over any matter

directly or indirectly involving Rendish. (DN 14). The practical

effect of this circumstance is to increase costs and compound

scheduling and staffing problems in the City Attorney’s Office:

Rendish would be unable to appear in Judge Turco’s courtroom

as a regular part of her duties, she would be unable to assist on

an emergency basis, and she would be unable to charge crimes

as part of her regular duties. These are functions regularly

required of Assistant City Attorneys in Rendish’s position. There

was no solution which would reasonably accommodate

Rendish’s continued employment with the City. (DN 16).

The effectiveness of the City Attorney’s Office was greatly

compromised because Rendish sued her immediate supervisor,

the Chief Assistant City Attorney, and the City Attorney.

Rendish’s work performance for many years had been weak

and at times unsatisfactory. (DN 15). The City Attorney’s Office

worked with Rendish over a number of years in an effort to

cdg NOTE 28 Aten ters ates

5

develop her lawyering skills and the type of collegial

relationship necessary for effective and efficient operation. This

was done despite serious performance problems of Rendish

including several mistrials resulting from Rendish commenting

on a criminal defendant’s silence and her misrepresenting the

disposition of a criminal matter to the victim of domestic

violence and to her supervisor who internally investigated the

matter. (DN 15). Even after Petitioner filed the state court action,

the City placed Petitioner on a paid administrative leave.

Nevertheless, her suit destroyed the trust and confidence between

herself, the City Attorney and her immediate supervisor. (DN

17).

Supervision of Rendish by her immediate supervisor, Heidi

Horst, would likely become more strained if not destroyed if

Rendish were allowed to maintain her employment within the

City Attorney’s office. (DN i6). Prior to the initiation of the

state court action, this relationship was marked by intimidation

and defensiveness. The strained and intimidating relationship

between Rendish and her immediate supervisor, Heidi Horst, is

punctuated by the fact that, since 1993, Rendish insisted that

her attorney be present during all of her performance reviews.

It would be nearly impossible for Ms. Horst to effectively

supervise or discipline Rendish when they are adversaries in a

lawsuit in which Ms. Horst was a defendant. Ms. Horst justifiably

believed that her ability to supervise Rendish was diminished

once she became a defendant and her ability to give Rendish

day to day instruction that Rendish would follow was adversely

affected. She also noticed that after the suit was filed, attitudes

among attorneys and staff in the City Attorney’s Office were

very strained. Through her own acts, she created a contentious,

hostile, divisive, and intolerable working relationship between

herself, her immediate supervisor, her co-workers and the City

Attorney. She demeaned the integrity of the Office of the City

Aitorney. Her personal attack upon her supervisor and the City

6

Attorney undermined their authority and created a difficult

obstacle for effective supervision. The close working

relationship that must exist within the City Attorney’s office

was tenuous but manageable prior to Petitioner’s initiating legal

action. The relationship became untenable and unmanageable

following the filing of the state court action. (DN 16).

Rendish was not terminated in retaliation for filing her state

court action. Rendish was terminated because of the effect her

state court action had on the operation of the City Attorney’s

office and its impact on the effective and efficient delivery of

public services to the City of Tacoma. (DN 17).

REASONS FOR DENYING THE WRIT

I.

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT DID NOT ENTER A DECISION

IN CONFLICT WITH DECISIONS OF ANOTHER

UNITED STATES COURT OF APPEAL ON THE SAME

IMPORTANT MATTER.

The United States Court of Appeals for the Ninth Circuit

followed the majority line of reasoning in requiring Rendish to

establish that her suit involved a matter of “public concern” as a

necessary predicate to establishing a First Amendment right and

that if her claim did involve a matter of “public concern” that it

not be outweighed by contravening aspects of the conduct in

question that reduce the effectiveness and efficiency of the

delivery of governmental services. See Grigley v. City of Atlanta,

136 F.3d 752 (11th Cir. 1998); Rendish v. City of Tacoma, 123

F.3d 1216 (9th Cir. 1997); Valot v. Southeast Local Sch. Dist.

Bd. of Educ., 107 F.3d 1220, 1226 (6th Cir. 1997), cert denied,

__ U.S. __, 118 S. Ct. 164; Graybo v. Indep. Sch. Dist. No. I-

7

008, 86 F.3d 1166 (10th Cir. 1996) (unpublished; citation

permissible under 10th Circuit rules); White Plains Towing Corp.

v. Patterson, 991 F.2d 1049, 1059 (2nd Cir. 1993), cert denied,

510 U.S. 865; Hoffmann v. Mayor, Councilman and Citizens

of City of Liberty, 905 F.2d 229, 233 (8th Cir. 1990); Schalk v.

Gallemore, 906 F.2d 491, 498 (10th Cir. 1990); Belk v. Town

of Minocqua, 858 F.2d 1258, 1261-62 (7th Cir. 1988); Day v.

South Park Indep. Sch. Dist., 768 F.2d 696, 701 (Sth Cir. 1985),

cert denied, 474 U.S. 1101 (1986). The only circuit failing to

require a showing of “public concern” when analyzing

government employee claims that a government employer’s

adverse employment action is barred by the First Amendment

is the Third Circuit. See San Filippo v. Bongiovanni, 30 F.3d

424, 436 (3rd Cir. 1994), cert denied, 513 U.S. 1082 (1995).

It is doubtful that San Filippo has effect beyond its unique and

complex procedural and factual circumstance.

The Ninth Circuit adheres to the clear majority of cases

that have addressed issues similar to those presented in Rendish’s

petition. The approach adopted by the Ninth Circuit in Rendish

v. City of Tacoma, supra, properly balances the individual

employee’s interest in airing matters of public concern versus

the government employer’s interest in maintaining the effective

and efficient delivery of public services when the matters of

public concern are disruptive or otherwise compromise the

effective and efficient delivery of public services.

Whether the District Court, in the case at hand, properly

denied Rendish’s request for Preliminary Injunction, because

she failed to carry her burden of proof, turns on facts specific

to the case at hand and the unusual procedural posture of the

case at hand. For example, at the District Court, the burden was

on Rendish to produce sufficient evidence establishing her

entitlement ‘o a preliminary injunction. American Passage Media

Corp. v. Cass Communications, Inc., 750 F.2d 1470, 1472

8

(9th Cir. 1985). Rendish’s primary source of evidence at the

District Court were her own affidavits which were vague and

conclusory. Her affidavits did not offer a sufficient factual basis

to support her motion, and her reliance on innuendo was rejected

by the District Court and the United States Court of Appeals

for the Ninth Circuit. Similarly, Rendish was unable to offer

evidence of irreparable harm. Her only demonstrable injury was

an economic injury. This finding is especially strong in light of

the finding of both the District Court and the Ninth Circuit that

the evidence supporting Rendish’s claim on the merits was weak.

While Rendish attempts to establish a split in authority, the

better view is that the Third Circuit case of San Filippo is an

aberrational case confined to the specific and unique fact pattern

presented. As a result, there is little, if any, general national

importance to warrant this court granting Certiorari. Rendish

was unable to carry her burden of showing irreparable harm or

success on the merits and was, therefore, denied her request for

a Preliminary Injunction.

Il.

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT DID NOT DECIDE AN

IMPORTANT QUESTION OF FEDERAL LAW THAT

HAS NOT BEEN SETTLED BY THE SUPREME COURT

AND DID NOT DECIDE SUCH A MATTER IN A WAY

THAT CONFLICTS WITH RELEVANT DECISIONS OF

THE SUPREME COURT.

The District Court, as affirmed by the Ninth Circuit,

correctly decided the matter below. United States Supreme Court

precedent was followed below and was not in conflict with

relevant decisions of this Court, particularly the precedent set

by Connick v. Myers, 461 U.S. 138 (1983); Waters v. Churchill,

511 U.S. 661 (1994); Rankin v. McPherson, 483 U.S. 378

9

(1987); Pickering v. Bd. of Educ., 391 U.S. 563 (1968). This

line of cases stands for the proposition that government, when

acting as an employer, must be given greater deference when

making employment decisions as distinguished from

government acting as sovereign in dealing with matters

involving an employee’s claims that the employee’s First

Amendment rights were violated by the government employer.

Accordingly, these cases hold, there must be within the

analytical framework a mechanism established to allow a

balancing of interests between the government’s interest, as an

employer, to deliver services in an efficient and effective manner

versus the government employee’s First Amendment rights in

matters of “public concern”. See Connick v. Myers, 461 U.S. at

142; Pickering v. Bd. of Educ., 391 U.S. at 568. Rendish argues

that the only restriction should be whether or not the lawsuit is

frivolous. This is an insufficient safeguard and the District Court

and Ninth Circuit Court of Appeals properiy rejected this view.

It is an inefficient use of judicial resources to review the instant

matter which was correctly decided at both the District Court

and Appellate levels.

Il.

SEVERAL QUESTIONS RENDISH PRESENTS IN

HER PETITION WERE NOT ADDRESSED BELOW AND

THIS COURT SHOULD DECLINE TO ACCEPT SUCH

QUESTIONS FOR REVIEW.

Several questions presented by Rendish’s Petition were not

addressed below. The Court should not accept these questions

until the lower courts have had an opportunity to fully develop

the issues involved, if at all. The following questions were not

discussed or addressed below: whether curtailment of the right

of access to courts ... implicates not only a first amendment

right but several other rights protected by the United States

10

Constitution and Bill of Rights; and, whether the issues broadly

alleged in Petitioner’s Complaint are issues of “extreme

importance” or of “inherent public concern” to the extent that

no distinction was made or hierarchy created regarding degrees

of public concern.

The source of the right to access the courts, under present

case law, arises under the First Amendment petition clause. See

McDonald v. Smith, 472 U.S. 479, 482 (1985). The Ninth

Circuit recognized this source. Rendish v. City of Tacoma, 123

F.3d at 1221. Rendish did not present as an issue on Appeal

that the source of one’s right to access the courts was from a

source different from the first amendment, or that if the source

of such right sprung from a different source, that a different

analysis must follow. This Court should not accept for review,

if at all, this issue as framed until the lower courts have had an

opportunity to develop its analysis.

Beyond bare assertion, Rendish did not present as an issue

on Appeal before the Ninth Circuit, the idea that there is a

hierarchy of “public concern”, or matters of “inherent public

concern”, and that if a pleading is characterized as falling into

the category of higher public concern or inherent public

concern, that no amount of disruption would justify termination

under the Pickering, Connick balancing. This issue was not

addressed by the Ninth Circuit or the District Court. Again,

this Court should not accept this issue for review because it

was not addressed below and because it necessarily involved an

extensive factual analysis that has not occurred at the present

stage of this litigation.

Other questions presented by Rendish should not be

addressed by the Court because they are heavily dependent upon

the particular facts of this case. Whether the trial court made the

appropriate balancing under Ninth Circuit law to determine

Be eh hi he

11

whether Rendish suffered irreparable harm as a result of her

termination, and was accordingly entitled to preliminary

injunction, is an issue heavily fact laden and of interest only to

the parties to this litigation. The District Court applied the

appropriate legal framework in this regard and determined that

Rendish had not carried her burdened of proving that there was

either a strong likelihood of success on the merits and a

possibility of irreparable injury or the existence of serious

question on the merits and a balance of hardships tipping in her

favor. National Wildlife Federation v. Burlington Northern R.R.,

Inc., 23 F.3d 1508, 1510 (9th Cir. 1994). This finding was

upheld on Appeal. Rendish v. City of Tacoma, supra. Rendish

was unable to support her motion for a preliminary injunction

with sufficient evidence entitling her to that relief (a preliminary

injunction). The Ninth Circuit reviewed the district court’s

determination and agreed. Moreover, Rendish’s entitlement to

a preliminary injunction has little national importance justifying

this Court’s attention. Similarly, the District Court’s

determination of whether Rendish would prevail on the merits

would turn on the heavily fact laden reasons for Rendish’s

termination and the facts which were presented to the District

Court in conjunction with Rendish’s Motion for Preliminary

Injunction. These are not the types of issues this Court should

review.

12

CONCLUSION

Rendish was not denied access to the courthouse. Rendish’s

ability to pursue her claims against Defendants has not been

impaired by the Defendants. She has vigorously pursued her

claims and appealed results with which she is dissatisfied. She

has also failed to recognize that her conduct had disruptive

consequences to the City Attorney’s office. She fails to recognize

the City Attorney’s office has a responsibility to the citizens of

the City of Tacoma to effectively and efficiently deliver services

such as the effective prosecution of crimes occurring within the

City. She fails to recognized that her conduct impaired the City’s

ability to accomplish this duty. She fails to understand that she

does not have an aFsolute right to prosecute a suit no matter the

consequences to her employer or the citizens her employer

serves. The petition of Rendish should not be accepted by the

Court.

Respectfully submitted,

JAMES W. FELTUS

Counsel of Record

McGAVICK GRAVES, P.S.

K. MICHAEL JENNINGS

Attorneys for Respondents

1102 Broadway, Suite 500

Tacoma, Washington 98401

(253) 838-2860