# Opposition Brief — Maciariello v. City of Lancaster > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1669%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1993 - **Citation:** 506 U.S. 1080 ## Text Penk Bupreme Court, U.S. ( 2 ek eee ee No. 92-876 DEC 17 1992 CLERK In The Supreme Court of the United States October Term, 1992 * ROBERT P. MACIARIELLO and ARNOLD ROWELL, Petitioners, vs. CITY OF LANCASTER, CITY OF LANCASTER POLICE DEPARTMENT, W.B. SUMNER, CHIEF OF POLICE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, PAUL S. PASKOFF, LANCASTER CITY ADMINISTRATOR, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, Respondents. . Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit 2 . 4 BRIEF OF RESPONDENTS IN OPPOSITION 2 ¥ STEPHEN T. Savitz (Counsel of Record) Vance J. Betmis Linpa Pearce EDwArDs GIGNILLIAT, Savitz & Bettis Counsel for Respondents 1527 Blanding Street Columbia, SC 29201 (803) 799-9311 = ene CL COLL ECr tants 3k oN Claas BEST AVAILABLE COPY COUNTER STATEMENT OF QUESTION PRESENTED FOR REVIEW Whether the actions of police officers in conducting a two-month secret and unauthorized investigation of a superior officer and their actions in failing to report for two months suspected evidence tampering by a superior officer constitute speech on a matter of public concern entitling them to First Amendment protection? ii TABLE OF CONTENTS Page COUNTER STATEMENT OF QUESTION PRESENTED ...oscvacccceueeeene ee web ewer eee. i TABLE OF AUTTHURITIBG «iccscheceeeenceevenseses iv OPINIONS BRLAaW ......s.s50 3 In their petition, petitioners assert, incorrectly, that they reported their suspicions to Captain Bailey. (Petition at p. 14). However, Captain Bailey’s affidavit (Petitioners’ Apperidix 30a — 32a) specifically states that he first spoke to Maciariello and Rowell about their investigation in September, one month after Chief Sumner and Assistant Chief Harris learned of the secret investigation. Sumner decided that Maciariello and Rowell should be demoted for their failure to report the alleged evi- dence tampering to him and for conducting an unauthorized investigation. He met personally with each one on Monday, October 5, 1987, to give them his deci- sion. (J.A. 36; 37; 395:14-18). Immediately upon learning of their demotions Mac- iariello and Rowell went to see Paul Paskoff, the City Administrator. After talking with Paskoff for approx- imately forty-five minutes, Maciariello and Rowell placed their badges on his desk and told him that they did not need their jobs with the City. Both admitted that it was their intention to resign and not return to work for the City when they placed their badges on Paskoff’s desk. (J.A. 105:25 -— 106:6; 287:3 -— 288:7). According to City policy, however, in order to resign in good standing an employee must resign to his depart- ment head and give two weeks notice. (J.A. 432:6-18). On Thursday, October 8, 1987, after Maciariello and Rowell failed to report to work, Sumner notified them that they were no longer employed with the City. (J.A. 38; 39). Despite their resignations, Maciariello and Rowell filed grievances over their demotions. (J.A. 40-41; 42). Sumner responded. (J.A. 43; 44). The grievance committee recommended that the demotions be reversed. (J.A. 47; 48). City Council decided to reject the grievance commit- tee’s recommendation and accepted Paskoff’s recommen- dation that the demotions be upheld.* Maciariello and 4 The City of Lancaster is governed by a Council form of government pursuant to South Carolina Code of Laws § 5-1-10, —— — 2 Rowell were notified by letter that City Council denied their grievances concerning their demotions. (J.A. 52; 53). Proceedings in the District Court and Fourth Circuit Maciariello and Rowell filed suit in March 1990 alleg- ing three causes of action: 1) violations of their First and Fourteenth Amendment rights to freedom of speech; 2) outrageous conduct; and 3) violation of the public policy of the State of South Carolina. The defendants - Chief Sumner (Sumner), City Administrator Paskoff (Paskoff), the City of Lancaster (City), and the Lancaster Police Department (Depart- ment) — answered the complaint on April 18, 1990. On December 19, 1990, they filed a motion for summary judgment as to all three causes of action. By Order entered January 31, 1991, the court granted the motion as to the claim for outrageous conduct and denied the motion as to the remaining claims. On July 24, 1991, in response to recent legal develop- ments, the defendants renewed their motion for summary judgment as to the remaining causes of action. Mac- iariello and Rowell responded and filed a cross-motion for summary judgment on August 12, 1991. In an Order entered on October 7, 1991, the court denied both parties’ motions for summary judgment as to the First Amend- ment claim. The court also ruled that Sumner and Paskoff et seq. South Carolina Code of Laws § 8-17-140 provides that final determination for grievance matters rests with the govern- ing body, in this case, City Council. were not entitled to the defense of qualified immunity on the First Amendment claim. Sumner and Paskoff appealed the qualified immunity issue by filing a Notice of Appeal on October 17, 1991. Sumner, Paskoff, the City, and the Department filed a Motion to Amend Interlocutory Order on October 17, 1991, pursuant to 28 U.S.C. § 1292(b) and Federal Rule of Appellate Procedure 5(a). By Order entered on November 25, 1991, the district court amended its Order and certi- fied the free speech issue to the Fourth Circuit. The defendants filed a Petition to Appeal Interlocutory Order on November 25, 1991, and the Fourth Circuit granted the Petition on December 31, 1991. The court of appeals held that Maciariello and Row- ell’s secret and unauthorized investigation per se was not speech. The court recognized, however, that certain com- ponents of the employees’ investigation were speech, specifically, their conversations with each other and with City Judge Sowell. The court proceeded to determine whether the speech components of the employees’ inves- tigation was the “but for” cause of their demotions and concluded that they were not. The unanimous panel fur- ther reasoned that even if the investigation were speech and even if the investigation were the “but for” cause of the demotions, Maciariello and Rowell’s First Amend- ment rights were nevertheless not violated because their interest in this speech was outweighed by the defendants’ interest in promoting efficiency, discipline and integrity within the police department. ¢ SUMMARY OF ARGUMENT The Fourth Circuit’s decision that the petitioners’ actions in conducting an unauthorized and secret investi- gation of a superior officer and their failure to report their suspicions is not protected speech, is a narrow hold- ing which is limited to the facts in this case. Furthermore, despite petitioners’ argument to the contrary, there is no conflict among the circuits on the points of law raised by petitioners. The Eighth Circuit decision cited by petitioners is easily distinguished from the instant case and, in any event, the final conclusion of the two circuits is identical. The Fourth Circuit did not misapply the Mt. Healthy balancing test in requiring the petitioners to show that “but for” their protected activity they would not have been demoted. The “but for” standard is not a higher standard, as petitioners contend, and this Court has pre- viously held that the standard enunciated in Mt. Healthy is “but for.” Finally, petitioners failed to respond to the Fourth Circuit’s ultimate conclusion that even if petitioners’ investigation were “speech,” and even if this “speech” were the “but for” reason for their demotions, the inter- ests of the Police Department outweighed the interests of the petitioners. The Fourth Circuit’s analysis and ultimate conclusion accords with both its own precedent and this Court's precedent. The petition for writ of certiorari should, therefore, be denied. 10 ARGUMENT I. THE COURT OF APPEALS CORRECTLY CON- CLUDED THAT A SECRET AND UNAUTHORIZED INVESTIGATION OF A POLICE OFFICER BY SUB- ORDINATES IS NOT, IN AND OF ITSELF, SPEECH UNDER THE FIRST AMENDMENT. As petitioners concede, no court has ever held that an unauthorized and secret investigation of one police offi- cer within a department by a subordinate police officer within that same department in and of itself constitutes speech under the First Amendment. The Fourth Circuit did not, as petitioners argue, hold that petitioners’ unauthorized investigation of their patrol commander was not speech because the speech was privately commu- nicated. The court held that the investigation itself was not speech because it . . . did not express, and was not intended to express, anything to anyone; its central feature was secrecy. Rowell and Maciariello deliberately chose not to speak, and they hid their activities so that those activities would not convey a mes- sage. Though they claim that they intended to speak out eventually, their intention expresses nothing. 973 F.2d at 299. (emphasis in original). The Fourth Circuit’s holding that the investigation itself was not “speech” is supported not only by logic but also by the decisions of other courts of appeal. Dennison v. County of Frederick, Va., 921 F.2d 50 (4th Cir. 1990), cert. denied, 111 S.Ct. 2828 (1991); Terrell v. University of Texas System Police, 702 F.2d 1360 (5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987); Guillory v. St. Landry Parish Police Jury, 11 802 F.2d 822 (5th Cir. 1986), cert. denied, 482 U.S. 916 (1986). The Fourth Circuit’s holding is not in conflict with any of this Court’s decisions, and petitioners’ rhetorical excesses do not change that fact. Il. THE DECISION BELOW DOES NOT CONFLICT WITH THE DECISION OF THE EIGHTH CIRCUIT COURT OF APPEALS IN HUGHES V. WHITMER. Petitioners argue that this Court should grant certiorari because the Fourth Circuit’s decision is in conflict with the Eighth Circuit’s decision in Hughes v. Whitmer, 714 F.2d 1407 (1983), cert. denied, 465 U.S. 1023 (1984). They are wrong. There is no conflict between the two decisions.° In suggest- ing otherwise, petitioners simply have conveniently over- looked a critical factual distinction. In Hughes, the plaintiff state trooper alleged that he had been transferred in retaliation for, inter alia, accusing a fellow trooper’s son of drug trafficking and in retalia- tion for conducting an investigation into the son’s alleged drug trafficking. Hughes told his troop commander of his suspicions and secured the troop commander’s authori- zation to conduct the investigation of his colleague’s son. 714 F.2d at 1411. It was in this factual context that the Eighth Circuit referred to Hughes’s “accusations and investigations” as “speech-related.” Id. at 1421. Unlike Hughes, petitioners investigated their com- mander, not his child. Moreover, petitioners did not report their suspicions about their commander to the 5 The Fourth Circuit was aware of Hughes and in fact, cites Hughes in part v of the opinion. 973 F.2d at 300. 12 chief, assistant chief, city administrator or anyone else in authority. Unlike Hughes, they did not seek or obtain permission from anyone in authority to investigate Cap- tain Broach. Indeed, if Assistant Chief Harris had not overheard a conversation and confronted petitioners two months after they began their rogue investigation, their investigation and the possible evidence tampering by their superior might not ever have come to light. Thus, petitioners’ assertion that the Fourth Circuit’s decision conflicts with the Eighth Circuit’s decision in Hughes does not withstand scrutiny. Hughes does not stand for the proposition that a police officer’s unauthorized and clandes- tine investigation of a superior officer constitutes protected speech. Not surprisingly, petitioners have cited no case that does stand for such a proposition. lil. THE COURT OF APPEALS DID NOT MISAPPLY THE CAUSATION STANDARD SET FORTH IN MOUNT HEALTHY CITY SCHOOL DISTRICT BD. OF EDUC. V. DOYLE. Petitioners fault the Fourth Circuit for misapplying the causation standard enunciated in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). The court of appeals, after acknowledging that petitioners’ speech to City Judge Sowell and each other during the course of their unauthorized investigation of Captain Broach constituted “speech,” declared that under Mt. Healthy, “the protected speech must have been a ‘but for’ cause of the discharge or demotion.” 973 F.2d at 299. Petitioners argue that Mt. Healthy does not require a “ showing of “but for” causation. They argue that “a 13 motivating factor” — the term used in Mt. Healthy - is something less than “but for.” Petitioners are simply wrong. This Court held in Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), that the ultimate inquiry is indeed whether “but for” a public employee’s protected speech, the employee would have been retained. 439 U.S. at 417. (emphasis original). As the Court explained in Givhan, any lesser standard “could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing.” 439 U.S. at 416, quoting Mt. Healthy, 429 U.S. at 285. Thus, the Fourth Circuit’s statement of the causation standard in “but for” terms does not conflict with Mt. Healthy. Indeed, the Fourth Circuit has consistently couched the causation requirement in First Amendment cases in “but for” terms. See Huang v. Bd. of Governors of the Univ. of North Carolina, 902 F.2d 1134, 1140 (4th Cir. 1990); Daniels v. Quinn, 801 F.2d 687, 689 (4th Cir. 1986); Johnson v. Town of Elizabethtown, 800 F.2d 404, 406 (4th Cir. 1986); Jurgensen v. Fairfax ne Va., 745 F.2d 868, 878 (4th Cir. 1984). 14 IV. PETITIONERS DO NOT RESPOND TO THE HOLDING OF THE COURT OF APPEALS THAT RESPONDENTS’ INTEREST IN MAINTAINING DISCIPLINE, INTEGRITY AND EFFICIENCY OUTWEIGHED PETITIONERS’ INTEREST IN CONDUCTING AN UNAUTHORIZED AND SECRET INVESTIGATION, AND SUCH HOLD- ING IS AN INDEPENDENT BASIS FOR SUP- PORTING THE FOURTH CIRCUIT’S DECISION. Petitioners fail to point out that the court of appeals assumed for the sake of argument that petitioners’ inves- tigation and conversation with each other was “speech” and that this speech was the effective cause of their demotions. Nevertheless, the court held, the speech was not protected because petitioners’ interest in this speech was outweighed by the respondents’ interest in maintain- ing efficiency, integrity and discipline within the police department. 973 F.2d at 300. Petitioners do not seek review of this determination which provides an indepen- dent basis supporting the judgment of the court of appeals. The court of appeals correctly noted that personal animosity motivated petitioners to undertake their unauthorized investigation of Captain Broach and that this motivation detracts from their claim that their speech related to a matter of public concern. 930 F.2d at 300, citing McMurphy v. Flushing, 802 F.2d 191, 197-98 (6th Cir. 1986); accord, Breuer v. Hart, 909 F.2d 1035, 1038-39 (7th Cir. 1990); Joyner v. Lancaster, 815 F.2d 20, 23-24 (4th Cir. 1987), cert. denied, 484 U.S. 830 (1987). The court further noted that a public employer’s interest in maintaining efficiency, integrity and discipline within its police i eeeencea eerie ameineeiell 15 department requires that a police officer’s First Amend- ment rights be correspondingly restricted. 973 F.2d at 300, citing Jurgensen v. Fairfax County, 745 F.2d 868, 880 (4th Cir. 1984); Hughes v. Whitmer, 714 F.2d 1407, 1418 (8th Cir. 1983), cert. denied, 465 U.S. 1023 (1984); and Kelly v. John- son, 425 U.S. 238 (1976). The court of appeals properly concluded that the respondents’ interest in maintaining efficiency, discipline and integrity within the police department outweighed petitioners’ interest in secretly speaking about and investigating Captain Broach. To determine whether speech on a matter of public concern is protected such that a public employee cannot be disciplined for the speech, a court must balance the employee’s interest in speaking as he did against the employer’s interest in maintaining and promoting integ- rity, discipline and efficiency. Connick v. Meyers, 461 U.S. 138, 150-151 (1983). When close working relationships are required between subordinates and superiors, an employer’s judgment that the speech at issue would dis- rupt those close working relationships and impede disci- pline and efficiency is entitled to “a wide degree of deference.” Id. at 151-152. . Police departments, preeminently among govern- ment offices, require close working relationships between superior and subordinate. Breuer v. Hart, 909 F.2d 1035, 1041 (7th Cir. 1990); Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir. 1989); Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir. 1987); Hughes v. Whitmer, 714 F.2d 1407, 1419-20 (8th Cir. 1983). That an unauthorized secret investigation of a superior by a subordinate police officer has the potential 16 for serious disruption of the integrity, efficiency and dis- cip! — ~f£asmall municipal police department is obvious. As the Fourth Circuit observed: A police department has an undeniable interest in discouraging unofficial internal investiga- tions. If personal investigations were the usual way for an officer to check out suspicious activ- ities of a fellow officer, the effect on efficiency and morale could be very disrupting and the effectiveness of the police force might deterio- rate. Instead of concentrating on their tradi- tional duties in the community, officers with personal hostilities could become preoccupied with personal investigations of one another. Esprit de corps could collapse into a kafkaesque nightmare of improper investigations into the impropriety of improper investigations. 973 F.2d at 300. The Fourth Circuit correctly weighed the competing interests of petitioners and respondents and found that the respondents’ interest in discipline, integrity and effi- ciency within the ranks of the police department out- weighed petitioners’ interest in conducting an unauthorized secret investigation of their patrol com- mander. As the court noted, Connick does not require a showing of actual destruction of close working relation- ships or actual disruption of discipline and efficiency. 461 U.S. at 152. That such destruction and disruption are reasonably to be apprehended as a result of petitioners’ actions is apparent. Accordingly, for the reasons given by the court of appeals, petitioners’ First Amendment claim fails even if their secret investigation of their patrol commander were SS 17 protected speech and the “but for” cause of their demo- tions. CONCLUSION Rule 10 of the Rules of the Supreme Court states in pertinent part, “A petition for a writ of certiorari will be granted only when there are special and important rea- sons therefor.” There are no special and important rea- sons for reviewing the Fourth Circuit’s disposition in this case. Although petitioners argue that the unanimous opinion of the panel was fundamentally flawed, their failure to petition for rehearing or rehearing en banc belies their argument. The petition should be dismissed. Respectfully submitted, STEPHEN T. SAviTz ‘Vance J. Bettis LinDA PEARCE EDWARDS GIGNILLIAT, SAviTz & BeTTIs 1527 Blanding Street Columbia, South Carolina 29201 Telephone: (803) 799-9311 Attorneys For Respondents Columbia, South Carolina December 17, 1992 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1669%3A2. Public record. Not legal advice.