Amicus Curiae Brief — Rahn v. Drake Center, Inc.

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No. 94-1668 | OFFICE OF 1HE CLERIG

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In THE

Supreme Court of the United States

OCTOBER TERM, 1994

ROSEMARY RAHN,

Petitioner,

Vv.

DRAKE CENTER,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

MOTION FOR LEAVE TO FILE A BRIEF

AMICUS CURIAE AND BRIEF OF THE

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER ROSEMARY RAHN

Of Counsel: MARY LEE LEAHY

JOSEPH A. GOLDEN Counsel of Record

President LEAHY LAW OFFICES

NATIONAL EMPLOYMENT 308 East Canedy

LAWYERS ASSOCIATION Springfield, IL 62703-2202

2000 Town Center, Ste. 900 (217) 522-4411

Southfield, MI 48075

JANETTE JOHNSON

Amicus Chairperson

3614 Fairmount Street

Suite 100

Dallas, TX 75219

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

ROSEMARY RAHN,

Petitioner,

Vv.

DRAKE CENTER,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

MOTION OF THE NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION FOR LEAVE TO FILE

A BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER ROSEMARY RAHN

The National Employment Lawyers Association moves

for leave to file the attached Brief Amicus Curiae in sup-

port of the Petitioner, Rosemary Rahn. Consent to the

filing of said brief has been obtained from all parties.

The National Employment Lawyers Association, (herein-

after referred to as “NELA”), is an organization of Plain-

tiffs Employment Lawyers which consists of approximately

1800 members nationwide. One of the purposes of NELA

is to protect and defend the interests of plaintiffs involved

in employment disputes including employment discrimina-

tion suits under Title VII of the Civil Rights Act of 1964,

42 U.S.C. Section 2000e, 42 U.S.C. Section 1981 and 42

U.S.C. Section 1983.

NELA is not a party to this suit. However, this case

raises issues regarding the type of speech that is pro-

~

tected by the First Amendment to the United States Con-

stitution under 42 U.S.C. Section 1983. NELA member

attorneys represent dozens of plaintiffs similarly situated

to Petitioner Rahn herein. As Amicus Curiae, NELA

respectfully seeks to assist this Court in its understand-

ing of the importance of the issues raised in this case,

the consequences of the decision in this case on current-

ly pending employment discrimination cases and the need

for hearing by this Court.

In the attached Brief Amicus Curiae NELA seeks to

demonstrate why this case should be heard by this Court

on the following grounds: 1) the importance of the issues

raised; 2) the importance of those issues to all public em-

ployees in this nation; 3) the inconsistent rulings among

the Courts of Appeal.

For the foregoing reasons, this motion for leave to file

the attached Brief Amicus Curiae should be granted.

Respectfully submitted,

Of Counsel: MARY LEE LEAHY

JOSEPH A. GOLDEN Counsel of Record

President LEAHY LAW OFFICES

NATIONAL EMPLOYMENT 308 East Canedy

LAWYERS ASSOCIATION Springfield, IL 62703-2202

2000 Town Center, Ste. 900 (217) 522-4411

Southfield, MI 48075

JANETTE JOHNSON

Amicus Chairperson

3614 Fairmount Street

Suite 100

Dallas, TX 75219

i

TABLE OF CONTENTS

TABLES OF AUTHORITICS .........00000008

EE Ws er abeenee wkd eee dT Geers s 6s

I. This Case Merits Review By This Court

Due To The Importance Of The Issues

Raised And The Effect Upon Public Em-

i eUh ne teWd wae h ses kode bee ows

Il. This Case Merits Review By This Court

To Resolve Differences In Holdings In

Different Courts Of Appeals ..........

IR CRRA een ape

il

TABLE OF AUTHORITIES

PAGE

Connick v. Myers, 461 U.S. 188 (1988)........ 5

Givhan v. Western Lines Consolidated School Dis-

trict, 400 U.S. 410 CBA) 20. ccc scccccccsess 9

Greenberg v. Kometko, 811 F.2d 1057 (7th Cir.

FEO iy Bip Chime yr pe uaa pS 9, 10

Knapp v. Whitaker, 759 F.2d 827 (7th Cir. 1985) . 9

McGill v. Board of Ed. of Pekin Elementary Sch.,

GR FAG Teh (Ti Cir. FTE) cc ccccennvees 8

McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir.

EE A ados Suse bd cree aan elauaaes 8

Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970) .. 8

Pickering v. Board of Ed. of Tp. H.S. Dist. 205,

HU., SO U.S. GES (29GB)... cccecess 1, 2, 3, 4,5

Rookard v. Health and Hospitals Corp., 710 F.2d

2 ke yr ere rr err rrr ar 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

ROSEMARY RAHN,

Petitioner,

V.

DRAKE CENTER,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF THE NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER ROSEMARY RAHN

The National Employment Lawyers Association (NELA)

submits this Brief as Amicus Curiae contingent upon the

granting of the foregoing motion for leave to file said

Brief. The interest of the Amicus Curiae is stated in that

motion.

ARGUMENT

Introduction

NELA adopts the facts as set forth in the Petition for

Writ of Certiorari.

In Pickering v. Board of Ed. of Tr. H.S. Dist. 205, Ill.,

391 U.S. 563 (1968), this Court followed the usual approach

in First Amendment cases: 1) ail persons have the right

to freedom of speech; 2) the State can limit that right

sali

for a compelling state reason, 3) any limitations on free-

dom of speech must be drawn as narrowly as possi-

ble. This has become known as the Pickering balancing

test.

It must be emphasized that this balancing test issue

would not be before this Court if this Court grants the

Petition because the Respondent did not argue at the Dis-

trict Court level that the Respondent had a compelling

reason that justified limiting Plaintiff's speech. (Fn.7,

Panel Opinion).

Thus, the issue in this case is whether Plaintiff's speech

was protected by the First Amendment to the United

States Constitution. In a two to one decision the Court

of Appeals determined that the speech was not so pro-

tected.

It should also be noted there is little or no dispute as

to the actual content of the speech for most of it was con-

tained in a written press release.

I. This Case Merits Review By This Court Due To The Im-

portance Of The Issues Raised And The Effect Upon

Public Employees.

In June, 1968, public employees throughout this nation

rejoiced, for this Court held the First Amendment pro-

tected a public employee’s speech on matters of public

concern. Pickering v. Board of Ed. of Tp. H.S. Dist. 205,

Ill., 391 U.S. 563 (1968).

On August 8, 1994, the Court of Appeals for the Sixth

Circuit, in the two-to-one decision in this case, severely

restricted public employees’ rights to freedom of speech

and, as importantly to Amicus, restricted the right of the

public to know. The Court of Appeals believed “public

concern” is the equivalent to whistle blowing, albeit a

==

narrow interpretation of whistle blowing, that only those

public employees who speak out as whistle blowers ex-

posing criminal behavior are entitled to First Amendment

protection.

In 1989 Petitioner had worked at the polls supporting

a tax levy that provided monies to the Daniel Drake Me-

morial Hospital (DDMH), a public health care facility

caring for the indigent. After the passage of that levy

the new administrator at DDMH made certain changes,

all of which involved the use of taxpayer monies.

Petitioner then joined the Committee to Maintain and

Improve Drake Hospital, became the Chair of the Com-

mittee, drafted a press release and held a press conference

on behalf of the Committee. The press release was critical

of certain acts of the new administration of the hospital—

all acts of which implicated taxpayer dollars.

The Court of Appeals held the press release and Plain-

tiffs public comments were not protected by the First

Amendment and, therefore, if Plaintiff were fired for her

speech, that was not actionable under 42 U.S.C. Section

1983.

Amicus submits this decision flies directly against the

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

205, Ill., 391 U.S. 563 (1968).

In 1964 Marvin Pickering, a teacher at the Lockport,

Illinois, high school, had written a letter to the local news-

paper. That letter was highly critical of the school board’s

use of bond money in the building of a new high school.

That letter was published by the newspaper.

Pickering wrote that the new track was not regulation

distance despite the fact thousands of dollars had been

spent on it. He criticized free lunches for high school

stil

athletes, no doors on several classrooms, no sunlight in

the plant room and no water in the first aid treatment

room. The Supreme Court concluded:

The letter constituted, basically, an attack on the

School Board’s handling of the 1961 bond issue

proposal and its subsequent allocation of finan-

cial resources between the schools educational

and athletic programs. It also charged the super-

intendent with attempting to prevent teachers

in the district from opposing or criticizing the

— bond issue. 391 U.S. at 566. (emphasis

added).

This Court reversed the Board’s dismissal of Marvin Pick-

ering.

The Pickering case is directly on point with the facts

in this case. Petitioner used a press release and a news

conference to communicate with the public. Pickering

wrote a letter to the newspaper and it was published.

Bond levies had passed in both cases. The subject mat-

ter of the communications in both cases was the manner

in which the public bond monies were being spent or

going to be spent. This Court held Marvin Pickering’s

speech was of public concern and that he was entitled to

First Amendment protection. Marvin Pickering did not

raise criminal wrongdoing.

This Court’s opinion in Pickering did not just deal with

the rights of Marvin Pickering. It dealt with the public’s

interest in

“having free and unhindered debate on matters

of public importance—the core value of the First

Amendment—” 391 U.S. at 573.

Teachers are, as a class, the members of a com-

munity most likely to have informed and defi-

nite opinion as to how funds allotted to the

a me

operation of the schools should be spent. Accord-

ingly, it is essential that they be able to speak

out freely on such questions without fear of re-

ae of dismissal. 391 U.S. at 572. (emphasis

added).

The Supreme Court concluded free and open debate is

vital to informed decision making by the electorate. 391

U.S. at 571-572.

Amicus respectfully submits that if the holding of the

Court of Appeals in this case were applied to Pickering’s

letter he would have lost for he did not expose criminal

activity. But this Court had no problem holding the con-

tent of Pickering’s letter was of public concern.

Public employees constitute a sizable portion of the work

force in this nation. (1995 Information Please Almanac)

Public employees are the very persons who know what

is going on within government and how tax dollars are

being spent. If those employees’ First Amendment pro-

tection is limited to criminal whistle blowing communica-

tions, informed decision making by the electorate will be

severely limited. The persons “most likely to have in-

formed and definite opinion’’, 391 U.S. at 572, as to how

public funds are allocated and spent will be silenced. The

core value of the First Amendment, free and unhindered

debate, will have been dealt a severe blow.

In Connick v. Myers, 461 U.S. 138, (1983), this Court

exempted from the Pickering holding employee state-

ments of a purely personal nature. This Court went on

to hold:

Whether an employee’s speech addresses a mat-

ter of public concern must be determined by the

content, form and context of a given statement,

as revealed by the whole record. 461 U.S. at

147-148.

en

Myers’ actions concerning office policy dealt directly with

the application of that policy to herself. This Court refused

to constitutionalize an employee’s personal grievance. That

very limited holding should not now be used to turn every

public comment by a public employee into a private griev-

ance—unless it relates to criminal whistle blowing.

This Court in Connick was very careful to point out

We do not suggest, however, that Myers’ speech,

even uf not touching upon a matter of public

concern, is totally beyond the protection of the

First Amendment. “The First Amendment does

not protect speech and assembly only to the ex-

tent that it can be characterized as political.

‘Great secular causes, with smaller ones, are

guarded.’’”’ United Mine Workers v. Illinois

State Bar Association, 389 U.S. 217, 223, 88

S.Ct. 358, 356, 19 L.Ed.2d 426 (1967), quoting

Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct.

315, 323, 89 L.Ed. 480 (1945). We in no sense

suggest that speech on private matters falls in-

to one of the narrow and well-defined classes of

expression which carries so little social value,

such as obscenity, that the state can prohibit and

punish such expression by all persons in its ju-

risdiction. See Chaplinsky v. New Hampshire,

315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942);

Roth v. United States, 354 U.S. 476, 77 S.Ct.

1304, 1 L.Ed.2d 1498 (1957); New York v. Fer-

ber, ____ U.S. ___., 102 S.Ct. 3348, 73 L.Ed.2d

1113 (1982). 461 U.S. at 147. (emphasis added).

In this case Petitioner joined with others to form the

Committee to Maintain and Improve Drake Hospital. That

Committee’s cause, whether viewed as a “great’’ cause

or a “‘smaller’” cause, had the purpose of trying to main-

tain the hospital and improve care at the hospital. This

was a cause worthy of First Amendment protection.

a

In Connick this Court held that content, form and con-

text of the statement must be considered. Therefore, ex-

amination of the issues in this case cannot avoid the fact

that Plaintiff chaired the Committee and that the Com-

mittee was composed not only of employees but also of

patients, patients’ family members and local citizens. The

Committee prepared and issued the press release. This

can hardly be characterized as a personal grievance as

described in Connick. Whether it is viewed as a greater

or smaller cause it falls directly under the criteria for pro-

tection set forth in Connick. This case is also certainly

distinguishable from the holding in Connick in terms of

form and context.

The content of the Petitioner’s speech itself is of public

concern. While media coverage may not, in and of itself,

demonstrate public concern, Amicus submits it is highly

unlikely there would be media coverage if the subject mat-

ter were not of public concern. How who calls the press

conference or delivers the press releases can affect the

Connick test is beyond Amicus’ understanding.

As the dissent in the Circuit Court noted the subject

of health care and how it is delivered may very well be

the public issue of the ’90’s. What could be of more public

concern than whether tax dollars are to be used to care

for patients directly at a public hospital or indirectly at

private facilities? This relates directly to the current hot

topic of privatization of government operation.

If Petitioner is silenced on these issues, so will be the

thousands of other public employees involved in health

care, education, welfare and social service. Those areas

are of public concern today. And all of us, the American

public, will be the losers if the Court of Appeals’ deci-

sion in this case is allowed to stand, for free and open

a

debate on health care and other publicly funded programs

will be seriously impaired.

The effect of the decision in this case is to effectively

silence public employees living in the Sixth Circuit. The

public is the big loser for the public will be cut off from

full and open debate on public issues based upon factual

information given by those with first hand knowledge.

This Court should not permit that to happen.

II. This Case Merits Review By This Court To Resolve The

Difference In Holdings By Different Courts Of Appeals.

The Circuit Court’s decision in this case differs with the

law in other Circuits. The Court of Appeals for the Seventh

Circuit has had occasion to apply the Pickering principles

of law not only in McLaughlin v. Tilendis, 398 F.2d 287

(7th Cir. 1968), in which the right of public employees to

associate with others for a cause was recognized, but also

in numerous other cases.

In Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970), the

Plaintiff, a policeman, criticized the police department’s

Internal Inspection Division (IID) on television saying:

The IID is like a great big washing machine.

Everything they put into it comes out clean. 429

F.2d at 902.

The Court of Appeals found those comments protected

by the First Amendment to the United States Constitu-

tion.

And the Seventh Circuit Court of Appeals has continued

to honor that precedent.

In McGill v. Board of Ed. of Pekin Elementary Sch.,

602 F.2d 774 (7th Cir. 1979), the Plaintiff, a teacher, had

complained about school procedures and had discussed a

-™

master collective bargaining agreement at school board

meetings and with the faculty. The Court of Appeals

found the Plaintiff's comments were of public concern.

In Knapp v. Whitaker, 759 F.2d 827 (7th Cir. 1985), the

Plaintiff, a teacher, criticized the grievance procedures in

the school district. Subsequently he lost a coaching assign-

ment and was geographically transferred. The Court of

Appeals held his speech was protected by the First Amend-

ment.

In Greenberg v. Kometko, 811 F.2d 1057 (7th Cir. 1987),

the plaintiff resigned from state employment at the IIli-

nois Department of Children and Family Services after

being transferred in retaliation for certain statements he

had made in-house and to certain members of the public.

Greenberg had attempted to inform his supervisors and

certain members of the public that children’s mental

health, physical health and their very lives were being

threatened. Greenberg said that in order to save money

the Department was returning children to unfit families.

The Court of Appeals characterized Greenberg’s com-

ments as “designed to right injustices Greenberg saw in

the handling of the office’s primary responsibilities.” 811

F.2d at 1062. (emphasis added). The Court of Appeals for

the Seventh Circuit held Greenberg’s comments were en-

titled to First Amendment protection.

Recognizing that First Amendment protection covered

not only comments made to the public but also comments

made internally on matters of public concern, Givhan v.

Western Lines Consolidated School District, 439 U.S. 410

(1979), the Court of Appeals in Greenberg said:

Those comments described in the record attempted

to show, for example, that court orders were be-

ing ignored, that children were being denied es-

sential health care, and that, in order to save

=— =

expenses, children were being returned to unfit

families. 811 F.2d at 1062.

The Court of Appeals held Greenberg was attempting to

improve the care of children in Illinois’ child care system.

His comments were protected by the First Amendment.

The Circuit Court’s holding in this case also directly con-

flicts with the decision of the Court of Appeals for the

Second Circuit in Rookard v. Health and Hospitals Corp.,

710 F.2d 41 (2nd Cir. 1983). The Court of Appeals in

Rookard held speech that dealt with waste of public

monies was protected by the First Amendment.

Clearly neither the Court of Appeals for the Seventh

Circuit nor the Court of Appeals for the Second Circuit

has limited the First Amendment protection of public em-

ployees to criminal whistle blowing. But that is precisely

what the Court of Appeals for the Sixth Circuit has done

in this case. The chilling effect of the Court’s ruling can-

not be underestimated. Public employees in the Sixth Cir-

cuit will live in fear of discharge if they express any opin-

ion on any controversial subject except criminal conduct.

And Amicus Curiae submits that chilling effect will spill

over into whistle blowing on criminal conduct. When in

doubt as to whether the comments relate to criminal con-

duct, public employees in the Sixth Circuit will simply

keep their mouths shut.

Amicus submits that public employees in Cincinnati,

Detroit and Louisville must not have less rights under

the First Amendment than public employees living in Chi-

cago, Indianapolis, Hartford and New York City.

It is the particular province of this Court to insure that

the rights guaranteed by the United States Constitution

are uniform throughout the nation. This Court cannot

allow this disparate treatment in the area of First Amend-

ment rights to continue. First Amendment rights must be

onlen

accorded uniform protection. Therefore, this Court should

grant the Petition to insure public employees have uni-

form First Amendment protection throughout the nation.

CONCLUSION

Amicus urges this Court to grant the Petition for Writ

of Certiorari. The issue presented is not only of impor-

tance to public employees it is also of extreme importance

to the nation’s interest in full and open debate on public

issues. Amicus further urges this Court to grant the Peti-

tion so as to end disparate treatment of public employees

who live in different parts of the nation.

Respectfully submitted,

Of Counsel: MARY LEE LEAHY

JOSEPH A. GOLDEN Counsel of Record

President LEAHY LAW OFFICES

NATIONAL EMPLOYMENT 308 East Canedy

LAWYERS ASSOCIATION Springfield, IL 62703-2202

2000 Town Center, Ste. 900 (217) 522-4411

Southfield, MI 48075

JANETTE JOHNSON

Amicus Chairperson

3614 Fairmount Street

Suite 100

Dallas, TX 75219