Petition for Writ of Certiorari — Hansen v. Westerville City School District

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941826 APR 19 1995

OFFICE UF THE CLERK

Case No.

THE SUPREME COURT OF THE UNITED STATES

OCTOBER, 1994 TERM

J. Michael Hayfield and Ernest A. Husarik,

Petitioners

Margaret McIntyre,

Respondent

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Randolph C. Wiseman

Counsel of Record

Drew H. Campbell

BRICKER & ECKLER

100 South Third Street

Columbus, Ohio 43215

(614) 227-2300

Attorneys for Petitioner

zs ore) ae a

(eee ~—-. a

QUESTIONS PRESENTED FOR REVIEW

1. DID THE COURT OF APPEALS ERR IN

ASSUMING THE EXISTENCE OF A

CONSTITUTIONAL RIGHT NOTWITH-

STANDING THAT THE RESPONDENT

WAS ENGAGED IN CONCEDEDLY

UNLAWFUL ACTIVITY AT THE TIME OF

THE ALLEGED CONDUCT.

II. DID THE COURT OF APPEALS ERR IN

DENYING QUALIFIED IMMUNITY TO

THE PETITIONERS IN A CASE THAT

RECOGNIZED FOR THE FIRST TIME

THE LEGAL RULES UPON WHICH THE

ALLEGED LIABILITY IS BASED.

II DID THE COURT OF APPEALS ERR IN

DENYING QUALIFIED IMMUNITY FOR

A THREAT TO CALL THE POLICE

WHERE PETITIONERS HAD PROBABLE

CAUSE TO BELIEVE THAT UNLAWFUL

ACTIVITY WAS AFOOT.

IV. DID THE COURT OF APPEALS ERR IN

FINDING A CONSTITUTIONAL

DEPRIVATION WHERE PETITIONERS

ALLEGEDLY TOOK SOME BUT NOT

ALL OF THE RESPONDENT'S LEAFLETS

SUCH THAT RESPONDENT RETAINED

i

SUFFICIENT LEAFLETS TO ENGAGE IN

UNLIMITED DISTRIBUTION.

DID THE COURT OF APPEALS ERR IN

DENYING QUALIFIED IMMUNITY ON

THE BASIS OF A HIGHLY ABSTRACT

AND GENERAL FORMULATION OF THE

ASSERTED RIGHT CONTRARY TO THIS

COURT'S HOLDING IN ANDERSON _V.

CREIGHTON.

DID THE COURT OF APPEALS ERR IN

ITS APPLICATION OF THE PROPER

STANDARD FOR SUMMARY JUDGMENT

WHERE THE PETITIONERS PRODUCED

AFFIRMATIVE EVIDENCE THAT THE

RESPONDENT SUFFERED NO CHILLING

IN FACT AND THUS CANNOT SHOW

SHE SUFFERED ANY DEPRIVATION OF

RIGHTS.

LIST OF PARTIES

Plaintiffs in the court below were Maureen Hansen,

Margaret MclIntyre, Gordon Rood, Carl Huffman,

Carolyn Ward, Raymond L. Brown, Sr., Sue A.

Bresee, Jerry D. Bresee, Lou Waggoner, Jack P.

Keller, and Margie Bean.

Defendants in the court below were the Westerville

City School District Board of Education, Debbie

Collins, Don W. Miller, Donna Baker, Dave Coffman,

Tom Fawcett, Ernest A. Husarik, J. Michael Hayfield,

Richard Tiburzio, T. Smith, R. Bailey, P. Ross, and

the City of Westerville.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .......0..ccc..c000c00

Lar A ie a ii

Tame OF CONTIG... iv

TABLE OF AUTHORITIES .000..0........ccccccccceccsceccsseesseeeenees vi

ne

STATEMENT OF JURISDICTION. ............::0ccccssceeseeeeeeee 2

STATEMENT OF THE CASE ....0......ccccscccescccoscccsssecsseeeve 3

pe RTOS. Me ORO ONT OT EE 5

I. THE SIXTH CIRCUIT ERRED IN ASSUMING THAT

THE RESPONDENT'S LEAFLETING ACTIVITY WAS

CONSTITUTIONALLY PROTECTED .................... aces 5

Il. THE COURT ERRED IN DENYING DR. HUSARIK

AND MR. HAYFIELD QUALIFIED IMMUNITY

BECAUSE THIS CASE IS ONE OF FIRST

IMPRESSION AND THE CONTOURS OF THE

RIGHTS THEY ARE ALLEGED TO HAVE

1V

i VIOLATED WERE NEITHER CLEAR IN 1988 NOR

‘ FORESHADOWED BY RELEVANT CASE LAV. ........ 8

A. The Court Erred As A Matter Of Law In Determining

That A Mere Threat To Call The Police Which Was

| Never Carried Out Is Sufficient To Cause A

RPT Gat MND ciici cstscidinsrcccnnsicncionnveinaconecessien 10

B. The Court Erred In Determining That Petitioners

Husarik and Hayfield Should Have Known That If

They Took Any Of Respondent's Materials, They Were

Violating Her First Amendment Rights. .................... 14

C. Petitioners Are Entitled To Qualified Immunity Becaue,

At The Time Of The Alleged Incident, Respondent's

Activity Was Unlawful Under Ohio Law.................. 16

ll. THE COURT BELOW MISCONSTRUED THIS

COURT'S RULE ANNOUNCED IN ANDERSON V.

CREIGHTON THAT CLEARLY ESTABLISHED

RIGHTS ARE TO BE DETERMINED BY

REFERENCE TO OPERATIVE FACTS

UNDERLYING THE RELEVANT CLAIM FOR

IV. UNDER THE APPLICABLE STANDARD FOR

SUMMARY JUDGMENT, RESPONDENT CANNOT

PREVAIL AT TRIAL ON HER CLAIM FOR AN

PEE Gitssiashccadsdoetuatesdaaaeoeanahnss 20

Fc - IT nisdidbiettsvspendtitaeie i iciadecenehodioa ene 23

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635, 640 (1987)8, 11, 15, 16,

ELTA NL ATI ANE DE RED gL DE To 17, 18, 19

Calhoun v. New York State Div. of Parole Officers, 999 F.2d

Ur, re Ce Gee CDE ce scikissscnsncesepesnbundonracctoarsvsctvises 8

Catalytic, Inc. v. Monmouth & Ocean City Bldg. Trade

Council, 829 F.2d 430, 436 (3rd Cir. 1987) .000000o.. 6

Celotex Corp. v. Catrett, 477 U.S. 317, 331-32 (1986)...... 19

DiMeglio v. Haines, 45 F.3d 790, 795-97 (4th Cir. 1995) ....7

Eckstein v. Cullen, 803 F. Supp. 1107, 1117 (E.D. Va. 1992)12

Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989). 9

Farr v. Gruber, 950 F.2d 399, 401 (7th Cir. 1991) ............. 18

Glasson v. City of Louisville, 518 F.2d 899, 904 (6th Cir),

cert. denied, 423 U.S. 930 (1975) ...0.0......c cee. 13, 14

Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982) 9

Greenberg v. Kmetko, 922 F.2d 382, 385 (7th Cir. 1991)... 12

Hansen v. Westerville City School District Board Of

Education, Case No. C-2-89-6007 Feb. 19, 1993... ...... ]

Hansen v_ Westerville City School District Board Of

Education, Case Nos. 93-3231/3303 Nov. 7, 1994........... 2

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)............ 8,11

Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89

See Ne AE eI ces'sickdo vecaucnudccuuniameemeune bec AS 15

vi

Aa el ee he tn he te a cn Na tale be Lh ens

McIntyre v. Ohio Elections Comm'n, 67 Ohio St. 3d 391,

618 N_E. 2d 152 (1993), cert. granted, 114 S. Ct. 1047,

(Feb. 22, 1994), motion to dismiss denied, 114 S Ct. 2670

I Sits ceuntsthancveteatbehcshecrccdessestdienincon 4,6, 14

Mozzochi v. Borden, 959 F.2d 1174 (2d Cir. 1992)11, 17, 20

NAACP vy, Button, 371 U.S. 415, 433 (1963)....00000000.0.....9

Siegert v. Gilley, 500 U.S. 226 (1991)... 5, 6

Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994)9, ge 1]

State v, Babst, 104 Ohio St. 167, 135 N.E. 525 (1922).....

Sullivan v. Carrick, 888 F.2d 1, 4 (Ist Cir. 1989)...............

Welch v. United States, 750 F.2d 1101, 1108 (Ist Cir. 1985)6

Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994) (Powell, J.)8

OTHER AUTHORITIES

SM cola tet sa ceburvesinciwons int NEL Pan kt IOP. We a

gn ccaekapiniens Msn ees 6

Federal Rules of Civil Procedure 56................................. 18

Ohio Revised Code § 3599.09 ........00..............0..8. 4, 6, 13, 20

Vii

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Case No.

THE SUPREME COURT OF THE UNITED STATES

OCTOBER, 1994 TERM

J. Michael Hayfield and Ernest A. Husarik,

Petitioners

Margaret Mcintyre,

Respondent

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

ETITION FOR WRIT OF CERTIORARI

Petitioners pray that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Sixth Circuit entered in this case on

November 7, 1994.

OPINIONS BELOW

Hansen v. Westerville City School District Board Of

Education, Case No. C-2-89-6007 Feb. 19, 1993

(Appendix A).

Hansen v. Westerville City School District Board Of

Education, Case Nos. 93-3231/3303 Nov. 7, 1994

(Appendix B), Petition For Rehearing And Suggestion

Of Rehearing En Banc denied Jan. 19, 1995

(Appendix C).

STATEMENT OF JURISDICTION

On November 7, 1994, the Sixth Circuit Court of

Appeals entered a decision affirming in substantial

part the decision of the lower court granting summary

judgment in favor of the Westerville City School

District Board of Education. The Sixth Circuit

reversed that portion of the District Court's decision

with respect to the Petitioners Dr. Ernest Husarik and

3. Michael Hayfield in which the lower court

concluded that: (1) Respondent McIntyre had no

constitutionally protected might (2) her speech was

not "chilled" in any way; and (3) that the Petitioners

were entitled to qualified immunity. On January 19,

1995, the Sixth Circuit denied the Petitioners’ Petition

For Rehearing And Suggestion Of Rehearing En

Banc.

This Court has jurisdiction to hear this petition

pursuant to 28 U.S.C. 1254(1).

Jurisdiction in the district court was proper pursuant

to 28 U.S.C. § 1331.

STATEMENT OF THE CASE

Public officials, who are often called upon to exercise

discretion in the execution of their official duties, must not be

subjected to suit where they act in accordance with state law

based upon a reasoned and accurate understanding of that

law. This is especially true where, as here, their actions do

not result in the deprivation of any right secured by the

constitution. The decision of the Sixth Circuit Court of

Appeals subjects the Petitioners to suit for their alleged

interference with concededly unlawful activity. Further,

without citation to any established precedent, it denied

qualified immunity to Petitioners for allegedly taking several,

but not all, of Respondent Mclntyre's leaflets from her and

for an alleged threat to report to the police conduct which

Petitioners had reason to believe was unlawful, even though

the police were never called, and despite the lack of evidence

supporting Respondent's claim that, even assuming the

existence of a constitutional right, she suffered a deprivation

of her First Amendment rights.

Petitioners, Dr. Ernest Husarik and Mr. J. Michael

Hayfield, are the Superintendent and the former (i.e., retired)

Assistant Superintendent, respectively, of the Westerville,

Ohio City School District. During 1988, the Westerville

Board of Education had placed on the ballot the issue of an

operating (tax) levy to support the public schools. On April

27 and 28, 1988, Dr. Husarik and Mr. Hayfield encountered

Respondent, Margaret Mcintyre, distributing leaflets in

Opposition to the levy. It is undisputed that Mr. Hayfield

3

ee

read the leaflet and informed Respondent that it violated Ohio

election laws. It is alleged that Mr. Hayfield took some of

Respondent's leaflets and threatened to call the police. It is

undisputed, however, that: (1) Respondent retained sufficient

leaflets to continue her distribution that evening; (2)

Respondent in fact continued to distribute leaflets that

evening after the alleged incident; (3) the police were never

called; (4) the Petitioners were without authority to effect an

arrest and neither suggested they had such authority nor

attempted to do so; (5) Respondent distributed leaflets the

following evening; and (6) Respondent never refrained from

engaging in any political activity as a result of the alleged

conduct of Petitioners. It is also undisputed that

Respondent's distribution of leaflets was subsequently

determined by the Ohio Supreme Court to have violated Ohio

Rev. Code § 3599.09. McIntyre v. Ohio Elections Comm'n,

67 Ohio St. 3d 391, 618 N.E. 2d 152 (1993), cert. granted,

114 S. Ct. 1047, (Feb. 22, 1994), motion to dismiss denied,

114 S. Ct. 2670 (June 13, 1994). The constitutionality of the

Ohio statute is currently being considered by this Court and a

ruling is expected shortly.

Despite these undisputed facts. the pendency of

McIntyre v. Ohio Elections Comm'n before this Court, and

over a strong dissent by Judge Batchelder, the Sixth Circuit

Court of Appeals denied Petitioners’ claim of qualified

immunity, apparently assuming that the Respondent was

engaged in constitutionally-protected conduct, and ruled that

a question of fact exists whether the Respondent's free speech

rights were in fact chilled, ie, whether she suffered a

4

a

deprivation of First Amendment rights. Slip Op. at 18, 19. It

is respectfully submitted that the Court’s (i.e., majority’s)

decision is erroneous because: (l) it concluded that

dissemination of literature in violation of state election law is

protected activity; (2) it incorrectly applied the applicable

standard for qualified immunity, (3) it denied Petitioners

qualified immunity from suit with regard to rights first

recognized in the instant decision of the Sixth Circuit Court

of Appeals; and (4) improperly applied the standard for

summary judgment.

ARGUMENT

I. The Sixth Circuit Erred In Assuming That The

Respondent's Leafleting Activity Was

Constitutionally Protected.

The Court’s consideration and denial of qualified

immunity to Dr. Husarik and Mr. Hayfield is erroneous

because Petitioners’ alleged activities did not deprive

Respondent of any right secured under the Constitution. In

Siegert v. Gilley, 500 U.S. 226 (1991), this Court ruled that

the District Court for the District of Columbia erred in even

reaching the issue of qualified immunity where it erroneously

assumed the existence of a constitutional violation. "A

necessary concomitant to the determination of whether the

constitutional right asserted by a plaintiff is ‘clearly

established’ at the time the defendant acted is the

determination of whether the plaintiff has asserted a violation

of a constitutional right at all." Id. at 232. Failure to make

iat

this threshold showing means that a plaintiff loses at an

"analytically earlier stage of the inquiry into qualified

immunity," thus obviating the need even to consider the issue

of qualified immunity. Id. at 227.

In this case, the Sixth Circuit failed to consider or

discuss that, according to the Ohio Supreme Court, Ms.

Mclintyre's conduct violated Ohio Rev. Code § 3599.09 at the

time of the alleged interference with her distribution of

election materials. See McIntyre v. Ohio Elections Comm’n,

67 Ohio St. 3d 391, 618 N.E.2d 152 (1993). Federal courts

of appeal have held that unlawful conduct is not |

constitutionally protected merely by virtue of the fact that the

unlawful activities involved elements of speech.’ Should this

Court uphold the validity of th. Ohio statute under the

Constitution, then the Respondent's conduct will be deemed

to have been unlawful. Yet the Sixth Circuit decision will

force the Petitioners to stand trial and face potential personal

liability for their alleged interference with the Respondent's

unlawful conduct. Unlawful conduct is not constitutionally

protected and cannot, therefore, provide a basis for § 1983

liability. Cf. Siegert _v. Gilley, 500 U.S. 226 (1991).

Therefore, should this Court rule in McIntyre v. Ohio /

Elections Comm’n that the Ohio statute is constitutional, then i

the Respondent's prima facie case under § 1983 will fail.

Under such circumstances, summary reversal of the Sixth

* See, e.g., Catalytic, Inc. v. Monmouth & Ocean City Bldg. Trade

Council, 829 F.2d 430, 436 (3rd Cir. 1987) (no First Amendment

protection for union’s leafleting activities in violation of NLRA); Welch

v. United States, 750 F.2d 1101, 1108 (1st Cir. 1985) (no First

Amendment protection for violation of federal tax laws).

6

Circuit's decision is proper. Otherwise, the Respondent may

obtain a damage award against the Petitioners for their

alleged interference with her unlawful conduct. Accordingly,

this Court should grant this Petition to review the Sixth

Circuit's failure to apply Siegert and to clarify the evident

confusion within the federal circuits as to the proper

application of the standard as set forth in that case. See

DiMeglio v. Haines, 45 F.3d 790, 795-97 (4th Cir. 1995)

(collecting cases reflecting split within the circuits).

I. The Court Erred in Denying Dr. Husarik and Mr.

Hayfield Qualified Immunity Because This Case Is

One Of First Impression And The Contours Of

The Rights They Are Alleged To Have Violated

Were Neither Clear In 1988 Nor Foreshadowed By

Relevant Case Law.

Even if this Court does strike down the Ohio statute,

the Sixth Circuit's decision reversing the District Court’s

order granting summary judgment to Dr. Husarik and Mr.

Hayfield on the issue of qualified immunity is erroneous

because this case is one of first impression; the Sixth Circuit's

opinion effectively recognizes new federal rights for the first

time while at the same time denies Petitioners qualified

immunity because of their failure to anticipate the

announcement of those rights.

This Court has held that whether a public official is

protected by qualified immunity genezally depends upon the

objective legal reasonableness of the action in question

7

assessed in light of the legal rules that were “clearly

established” at the time it was taken. "If the law at that time

was not clearly established, an official could not reasonably

be expected to anticipate subsequent legal developments, nor

could he be forced to ‘know’ that the law forbade conduct not

previously identified as unlawful." Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Thus, "[t]he contours of the right

must be sufficiently clear that a reasonable officer would

understand that what he is doing violates that right."

Anderson v. Creighton, 483 U.S. 635, 640 (1987). "If there

is a ‘legitimate question’ as to whether an official's conduct

constitutes a constitutional violation, the official is entitled to

qualified immunity." Wiley v. Doory, 14 F.3d 993, 995 (4th

Cir. 1994) (Powell, J.).

Other circuits recognize that qualified immunity

should be applied in cases of first impression. Where a legal

rule is applied in case for the first time it cannot be clearly

established at the time the alleged conduct took place.

Calhoun v. New York State Div. of Parole Officers, 999 F.2d

647, 654-55 (2d Cir. 1993). For the reasons set forth below,

the Petitioners respectfully request that this Court grant the

Petition to resolve the evident conflict between the Sixth and

Second Circuits.

A. The Court Erred As A Matter Of Law In

Determining That A Mere Threat To Call The

Police Which Was Never Carried Out Is Sufficient

To Cause A Deprivation Of Rights.

The Sixth Circuit creates for the first time the

possibility of liability for a public official for merely

threatening to call the police if the official’s purpose in so

doing was to discourage someone from expressing his or her

views, notwithstanding that the official had probable cause to

believe, and in fact correctly believed that illegal conduct was

afoot. Slip Op. at 18-19, citing NAACP v. Button, 371 U.S.

415, 433 (1963) and Sloman v. Tadlock, 21 F.3d 1462, 1469

(9th Cir. 1994). As Judge Batchelder in her dissenting

opinion below cogently points out, the cases cited in the

Majority's opinion do not involve a mere threat to call the

police which is never carried out. Dissenting Opinion at 1-3.”

Yet none of the cases relied upon by the Sixth Circuit

clearly establish that a threat under such circumstances

violates any constitutional right. NAACP v. Button involved

a challenge to a Virginia statute on the basis that it was

overly broad and vague, potentially inhibiting the plaintiffs’

First Amendment freedoms of speech, association, petition

and assembly. The alleged threat in the instant case to call

the police, which threat was never carried out, clearly does

not present the inhibitory effect of the overbroad and vague

statute in Button. Particularly for the purposes of

* To the contrary, courts have recognized that a mere threat by a police

officer that he was “going to get” a plaintiff -- a seemingly more

egregious “threat” -- is insufficient to state a claim for a violation of the

plaintiff s constitutional rights. See Emmons v. McLaughlin, 874 F.2d

351, 353 (6th Cir. 1989) (affirming decision granting summary

judgment to defendants); cf. Goldschmidt v. Patchett, 686 F.2d 582, 585

(7th Cir. 1982) (rejecting claim based upon a prosecutor’s sending of a

letter informing plaintiff (an attorney) that his advertising appeared to

contravene state law, noting that “[t]he prosecutor’s action here can be

characterized at most as a warning or a threat”) (emphasis supplied).

9

i

determining the issue of qualified immunity, it is not apparent

that a reasonable public official in the position of Dr. Husarik

and Mr. Hayfield would recognize that the evils associated

with the statute struck down in Button were inherent in their

alleged threat to call the police concerning Respondent’s

distribution of campaign materials which Petitioners had

reason to believe violated Ohio law.

Nor does Sloman v. Tadlock support the denial of

qualified immunity to Dr. Husarik and Mr. Hayfield in this

case. In Sloman, the plaintiff established that a police officer,

after warning the plaintiff that he was in violation of the

traffic laws, subsequently issued a citation to plaintiff for that

violation and later participated in the arrest of the plaintiff for |

trespass. One of the defendants in Sloman was a police

officer, an official who had it within his power to arrest or

issue citations to the plaintiff. In the instant matter, it is

undisputed that neither Dr. Husarik nor Mr. Hayfield had the ;

ability to arrest or cite Respondent for an election law

violation, or indeed, any other violation of law. Further, the ;

police officer in Sloman actually cited plaintiff for a violation

of law and later participated in the plaintiff's arrest, and the §

civilian defendant in that case actually had signed a citizen’s

complaint that led to the arrest of the plaintiff. See Sloman,

21 F.3d at 1465-66, 1474. Here, by contrast, the record

demonstrates unequivocally that Petitioners never called the

police concerning Respondent's activities.”

> Additional evidence established in Sloman serves to distinguish it

from the case at bar. In Sloman, there was evidence presented that the

plaintiff was not violating the traffic laws for which he was issued a

10

Aina hh BE alee Adio, ahaha: etek: vee

Moreover, even if Sloman provided support for the

court's decision, it was decided in 1994. The relevant inquiry

here, however, is whether the law in 1988 was sur that the

Petitioners should have known that they were violating the

Respondent's clearly established rights. Thus, the decision

below is contrary to this Court's pronouncements in Harlow

v. Fitzgerald and Anderson v. Creighton.

The Sixth Circuit's decision to deny qualified

immunity under the circumstances of this case is particularly

incongruous in light of the result in a case upon which it

relied, Mozzochi v. Borden, 959 F.2d 1174 (2d Cir. 1992), in

which an official who had not merely “threatened to call the

police” but had instituted a prosecution against an individual

allegedly in retaliation for his exercise of First Amendment

rights was granted qualified immunity.

As Judge Batchelder notes in her dissent, “...a threat

to call the police, even when made by public school officials

on public school property, is [not] the equivalent to a threat

of arrest or prosecution, such that these [school officials]

should have known that when they threatened to call the

police they were violating [Respondent’s] First Amendment

rights.” Dissenting Opinion at 4. A rule of law that would

citation by the defendant police officer, and further, that the trespass

charge against the plaintiff was groundless. Here, it is undisputed that

Respondent subsequently was adjudged by the Ohio Supreme Court to

have violated the Ohio election laws. Finally, unlike Sloman, there is

no evidence in this matter that Respondent’s expression was “chilled” by

Petitioners’ alleged conduct. Cf. Sloman, 21 F.3d at 1470.

1]

‘ |

deny qualified immunity to school officials under these

circumstances indeed “set[s] an alarming precedent,”

Dissenting Opinion at 4, for it creates a new rule of liability

for merely threatening to call the police while denying public

officials qualified immunity for not anticipating the new rule’s

announcement by this Court.‘

Federal courts have generally granted qualified

immunity in cases of first impression. See, e.g., Greeriberg v.

Kmetko, 922 F.2d 382, 385 (7th Cir. 1991) ("the law of

qualified immunity, as it has developed in this circuit, has

tended to find qualified immunity in almost every case of first

impression.") (Cudahy, J., concurring). The Sixth Circuit's

failure to recognize that novel legal issues are peculiarly

appropriate for the granting of qualified immunity is at odds |

with the cases from this Court as well as in other circuits. )

B. The Court Erred In Determining That

Petitioners Husarik And Hayfield Should Have

Known That If They Took Any Of Respondent’s |

Materials, They Were Violating Her First |

Amendment Rights. .

* Moreover, as a matter of public policy, public officials, especially

school officials, cannot be subject to § 1983 liability each time they

threaten to invoke the proper civil authority when they reasonably and

correctly believe that illegal conduct is afoot. See, e.g.. Eckstein v. )

Cullen, 803 F. Supp. 1107, 1117 (E.D. Va. 1992) (threat by prosecutor

to invoke judicial intervention not violative of First Amendment nights

of bookstore owner).

12

As Judge Batchelder emphasizes in her dissenting

opinion, there is no precedent which would support a denial

of qualified immunity to Dr. Husarik and Mr. Hayfield on the

theory that they should have known that by taking some of

Respondent’s materials they were violating her First

Amendment rights. Dissenting Opinion, at 4.°

The court below analogized the facts of this case to

those presented in Glasson v. City of Louisville, 518 F.2d

899, 904 (6th Cir.), cert. denied, 423 U.S. 930 (1975). In

Glasson, a police officer, pursuant to a departmental policy to

confiscate and destroy all signs which the police deemed to be

“detrimental” or “injurious” to the President or to the

United States, seized a poster critical of the President and

destroyed it. Unlike the facts in the instant matter, the police

officer in Glasson destroyed the plaintiff's only poster, which

effectively prevented her from communicating her message to

those in attendance at the President’s motorcade. Here, at

most, Petitioner Hayfield is alleged to have taken only a few

of Respondent's leaflets, and it is undisputed that Respondent

continued to pass out her leaflets to other passersby on the

two dates in question. It also bears emphasis that in Glasson,

the law enforcement officer who destroyed ine plaintiff's

poster would have had the power to arrest her if she resisted

his actions, while in the instant matter, Petitioner Hayfield

had no such authority, and indeed never even called the police

concerning Respondent’s activity. See also Dissenting

Opinion at 2.

> There is no record evidence that Petitioner Dr. Husarik ever took any

of Respondent's leaflets.

13

Glasson, the very precedent which the Court cites in

support of its conclusion that there was a “clearly

established” right of Respondent not to have any of her

materials taken such that Petitioners Hayfield and Husarik

should have known that their conduct in 1988 was unlawful,

fails to inform the reader that public officials could be held

liable for taking only a few of an individual’s materials and

the individual is not prevented from communicating her

message to the public.

C. Petitioners Are Entitled To Qualified Immunity

Because, At The Time Of The Alleged Incident,

Respondent's Activity Was Unlawful Under Ohio

Law.

Under Ohio law as it existed in 1988, and as of this

filing, the Respondent's conduct was unlawful. In State v.

Babst, 104 Ohio St. 167, 135 N.E. 525 (1922), the Ohio

Supreme Court stated that the substantially identical

precursor to Ohio Rev. Code § 3599.09 “in its operation

does not restrain or abridge the liberty of speech as

guaranteed by Section 11, Article I, Bill of Rights [1e., the

Ohio Constitution’s First Amendment analogue] but is

regulatory in nature, and intended to prevent abuse of the

right.” This conclusion was confirmed by the Ohio Supreme

Court’s reaffirmation of this controlling law by a 6 to |

margin in McIntyre v. Ohio Elections Comm’n., 67 Ohio St.

3d 391, 618 N.E.2d 152 (1993). Because clearly established

state law did not confer any right upon the Petitioner in 1988,

14

it is plainly unfair to subject the Respondents to potential

liability for subsequent changes in the law which could not

have been foreseen. Thus, if the Ohio statute is now struck

down, Dr. Husarik and Mr. Hayfield may be held to answer in

damages for a change in the law occurring some seven years

after the alleged incident.

This result is especially unjust given that, at the time it

occurred, the Petitioners acted in accordance with an

accurate understanding of the law as it then existed.

Qualified immunity is meant to protect “all but the plainly

incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89

L.Ed. 2d 271 (1986). Ironically, the Sixth Circuit's decision

would deny immunity to these Petitioners not because they

knew too little, but rather because they knew too much. To

impose liability on them based on their accurate knowledge of

the law imposes an intolerable burden on public officials.

Accordingly, the denial of qualified immunity to Mr. Hayfield

and Dr. Husarik, when they certainly had reasonable grounds

to believe that Respondent’s materials violate the election

laws, flatly contradicts the rule pronounced in Anderson v.

Creighton.

Ili. The Court Below Misconstrued This Court's Rule

Announced {in Anderson v. Creighton That Clearly

Established Rights Are To Be Determined By

Reference To Operative Facts Underlying The

Relevant Claim For Relief.

aia is

This Court warns against applying the test of what is

“clearly established law” in terms that are too general or

abstract, noting that such a formulation will “ convert the law

of qualified immunity . . . into a rule of virtually unqualified

liability simply by alleging extremely abstract rights.”

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). The

problem with such an approach is that it tends to “destroy

‘the balance that [the Supreme Court] cases strike between

the interests in vindication of citizens’ constitutional rights

and in public officials’ effective performance of their duties,’

by making it impossible for officials ‘reasonably [to]

anticipate when their conduct may give rise to liability for

damages.” Id at 639 (citations omitted). For this reason,

federal law concerning qualified immunity requires that “the

right alleged to have been violated must have been ‘clearly

established’ in a more particularized, and hence more relevant

sense.” Id. at 640.

The Sixth Circuit, though, framed the issue respecting

qualified immunity in very general terms, as follows:

Mrs. MclIntyre’s right to distribute political

literature was clearly established at the time of

these events. A reasonable school official

would have known that he could not interfere

with a citizen’s campaign efforts against a tax

levy by confiscating her materials and

threatening to call the police.

cn

Cs tN ENN Se Be APOE AE CI OGE A D SO ee le AAO I ORS A Sot

Opinion at 19. Posed in that manner, “the question answers

itself.” Compare Mozzochi v. Borden, 959 F.2d 1174, 1178

(2d Cir. 1992) (concluding that a similarly worded framing of

the issues was too general). Instead, the relevant standard

must account for the fact that the materials which Respondent

was distributing were clearly in violation of the state election

laws as they existed at that time.

Additionally, as this Court has recognized, whether

the official’s actions are objectively reasonable is determined

by reference to federal constitutional, statutory or case law.

existing at the time the alleged violation occurred, including

decisions of the Supreme Court, the Sixth Circuit Court of

Appeals, or the Ohio Supreme Court. Anderson v. Creighton,

483 U.S. 635, 639. Although it is not required that the

“action in question [be] previously held unlawful,” its

unlawfulness in light of pre-existing law must be apparent,

and the contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates the law.” ld. at 640.

For the foregoing reasons, the issue respecting

qualified immunity should have been framed as follows:

whether, in 1988, it was clearly established that an individual

had a First Amendment right to disseminate materials which

violated state election laws, and, even if such a right is

determined to have existed, whether a reasonable school

official would have known that taking several copies of the

individual’s materials and threatening to call the police, even

when there was no deterrent effect on the individual’s speech,

17

the individual's medium of speech was not impaired, and

police were not contacted, would violate the individual’s

rights. Dr. Husarik and Mr. Hayfield respectfully urge this

Court to find that such a right was not clearly established in

1988, and that in any event, reasonable public officials would

not reasonably have known that the conduct at issue in this

case violated such a right. In addition, the Petitioners

respectfully request that the Court grant their Petition to

clarify the rule as set forth in Anderson v. Creighton

IV. Under The Applicable Standard For Summary

Judgment, Respondent Cannot Prevail At Trial

On Her Claim For An Alleged “Chilling” Of Her

First Amendment Rights.

Even if Respondent had First Amendment rights in

this case, and even if qualified immunity were not properly

invoked in this case, the Sixth Circuit improperly applied the

applicable standard for summary judgment in failing to uphold

dismissal of Respondent's claims. The Sixth Circuit reversed

the District Court and ruled that an issue of fact remains

concerning whether Petitioners’ conduct deprived

Respondent of a constitutionally protected right. Slip Op. at

18. The Court correctly noted that “in order to succeed at

trial . . . [the Respondent] will have to establish that her

expression was in fact deterred or chilled by the defendants’

conduct.” Slip Op. at 19 (emphasis added).° Under Fed. R

Civ. P. 56, a nonmovant must “ ‘present affirmative evidence

to defeat a properly supported motion for summary

© Accord, Farr v. Gruber, 950 F.2d 399, 401 (7th Cir. 1991); Sullivan v.

Carrick, 888 F.2d 1, 4 (Ist Cir. 1989).

18

judgment”; self-serving, unsupported allegations are

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

257 (1986). A movant may support a motion under Rule 56

by pointing out to the trial court that, after a sufficient period

for discovery, the plaintiff has no evidence to support an

essential element of his or her case. Celotex Corp. v. Catrett,

477 U.S. 317, 331-32 (1986).

In the District Court, Petitioners demonstrated that

Respondent had presented no evidence to support a finding

that her First Amendment rights were in fact chilled.

Specifically, Respondent testified that (1) she continued

handing out all of her leaflets on April 27 and 28, 1988,

(McIntyre Dep. at 1-97-98); (2) she continued campaigning

vigorously in opposition to the tax levies, (id. at I-120-22,

131, III-24); (3) she actively attended board meetings (id. at

]-120); and (4) she even ran twice for a seat on the

Westerville School Board. (Id. at IV-14-15.) Indeed, she

admitted:

Q: Is there anything that you didn’t do; anything you

said, “ Well, gee, I'd like to do this,” or “I should do

this,” or “I usually do this, but I’m not going to do

that now because I feel threatened because of what

Husarik and/or Hayfield did to me on April 27th and

28th, 1988"?

A: Not to my knowledge.

19

ee

(Id. at I-122) (attached hereto as Appendix D). Respondent

failed to cite, either in the District Court or before the Sixth

Circuit, any record evidence to refute this unequivocal

admission that her First Amendment rights were never chilled.

Cf. Mozzochi v. Borden, 959 F.2d at 1178-79 (no evidence

that plaintiff's speech activities were “chilled” when they

continued unabated after his arrest and criminal prosecution).

Indeed, there is no such evidence, nor will any be adduced at

trial, given the fact that Respondent is now deceased and

there is no other source of admissible evidence to establish

“chilling” in fact. The complete failure of evidence on an

essential element of Respondent’s case required the Sixth

Circuit, under binding Supreme Court precedent, to affirm

the District Court’s order granting summary judgment to

Petitioner on this claim.

Additionally, the record evidence does not support

any claim that Dr. Husarik ever confiscated Respondent’s

leaflets. To the contrary, Respondent alleged that only Mr.

Hayfield took materials from her. Specifically, Respondent

asserted that Mr. Hayfield “grabbed” leaflets on April 27,

1988, but not the following night, and that the Petitioners

“attempted” to “confiscate” her leaflets the following night

when “they asked me to give them to them.” (MclIntyre

Dep. at III-84-85) (Appendix D). It is manifest that merely

asking for materials does not constitute confiscation.

Accordingly, the undisputed record evidence requires that the

District Court’s order granting summary judgment for lack of

injury in fact to Respondent must be reinstated.

20

¥. CONCLUSION

For the reasons set forth in this brief, Petitioners Dr.

Ernest Husarik and Mr. J. Michael Hayfield, respectfully

request that, if the constitutionality of Ohio Rev. Code §

3599.09, is affirmed, the Court summarily reverse the

decision of the Sixth Circuit and remand this case for entry of

judgment in conformity with the decision of the District

Court. In the alternative, it is respectfully submitted that

qualified immunity should be granted to Dr. Husarik and Mr.

Hayfield and the order of the District Court granting

summary judgment to Petitioners on Respondent's “ chilling”

claim should be affirmed on the basis that the Respondent

failed to make the requisite showing in support of her claim.

Accordingly, Dr. Husarik and Mr. Hayfield request this Court

to grant their Petition and to affirm the District Court’s order

granting summary judgment on the issues of qualified

immunity and on Respondent’s “chilling” claim.

Respectfully submitted,

James P. Burnes

Drew H. Campbell

Counsel for Petitioners,

Dr. Ernest Husarik and

Mr. J. Michael Hayfield

21