Opposition Brief — Brown v. Kilgore

Supreme Court brief1995

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Supreme Court, U.S.

Lf FILED

No. 95-8 JUL 31 1095

IN THE QFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

KIRK M. BROWN,

Petitioner,

THADDEUS KILGORE, JR.;

OHIO CIVIL SERVICE

EMPLOYEES ASSOCIATION,

AFSCME LOCAL 11, AFL-CIO; and

STATE EMPLOYMENT RELATIONS BOARD,

Respondents.

-_—_—

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

RESPONDENTS KILGORE AND OHIO CIVIL

SERVICE EMPLOYEES ASSOCIATION’S

BRIEF IN OPPOSITION

LINDA K. FIELY

1680 Watermark Drive

Columbus, Ohio 43215

(614) 487-9191

Counsel for Respondents

Kilgore and Ohio Civil

Service Employees

Association

om)

Ss)

—

7. -

INTRODUCTION

The citations to the opinions below and the basis

for this Court’s jurisdiction are correctly set forth in the

petition for the writ of certiorari at p. 2. Respondents

Kilgore and Ohio Civil Service Employees Association

accept the Statement of the Case as presented by

Respondent State Employment Relations Board in its

Brief in Opposition at p. 1.

REASONS THE PETITION

SHOULD BE DENIED

Supreme Court Rule 10 sets forth several

considerations that this Court considers in deciding to

grant a writ of certiorari. No such consideration exists

in the instant case. To the best of our knowledge, there

exists no conflict between the decision reached by the

Supreme Court of Ohio and any other state court of last

resort or any federal circuit court. Nor can we discern

any conflict with any decision of this Court. Nor, finally,

do we feel that the issue presented here is of such

importance that this Court needs to address it.

1. No important question of federal law exists

in this case which warrants review.

Petitioner presents this Court with no

justification for its granting the writ besides an

admonition that the Supreme Court of Ohio’s

justification for dismissal of petitioier’s appeal, i.e., its

reliance upon a previous decision, "constitute[d] a

decision of an important question of federal law which

has not been, but should be decided by this [CJourt."

Pet. at 11. Petitioner does not, however, explain why

this case or the issue implicated are so important as to

warrant this Court granting certiorari. A citation is

provided to R.J. Reynolds Tcbagco Co. v. Durham

County, 479 U.S. 130 (1986), but that case, which

concerned the imposition of an ad valorem tax upon

imported tobacco products stored in a customs

warehouse, bears no relevance to the instant facts.

Part of this Court’s opinion in R.J. Reynolds

stated that a party may seek review in this Court from a

decision of an inferior state court denying review from

an inferior state court for want of a substantial

constitutional question. Finding that a state statute had

been upheld against federal constitutional challenge,

this Court found that jurisdiction lay for an appeal to

this Court under 28 U.S.C. Section 1257(2), as the denial

of review by the highest state court constituted a final

judgment. R.J. Reynolds, 479 U.S. at 137-38. With this,

Respondents do not take issue: discretionary jurisdiction

does exist in this Court. There is, however, no reason

for this Court to exercise it.

2. There is no conflict between courts

regarding this issue as it exists under the similar

Labor Management Relations Act.

Ohio’s Public Employee Collective Bargaining Act,

Ohio Rev. Code Sections 4117 et seq., is patterned after

the Labor Management Relations Act, 29 U.S.C. Sections

141 et seg. The State Employment Relations Board

("SERB"), the body created to administer the Act in

Ohio, acts as the functional equivalent of the Nationa!

Labor Relations Board. Each possesses a dual identity:

prosecutor and adjudicator. The prosecution of unfair

labor practices under Ohio law is conducted by SERB

acting as a prosecutor, much the same as the NLRB

General Counsel acts under the LMRA. Adjudication of

charges brought by SERB is performed by the Board, a

three-member entity that acts as judge, in much the

same manner as the NLRB. As the Supreme Court of

Ohio noted in the opinion which is ultimately being

challenged by Petitioner, "[TJhe procedures for unfair

labor practice cases mandated by R.C. 4117.12 and

4117.13 are substantively identical to those established

in Section 10 of the Labor Management Relations Act to

govern unfair labor practices before the National Labor

Relations Board." Ohio Assn. of Pub. School Employees,

Chapter 643 v. Dayton City School Dist. Bd. of Edn., 572

N.E.2d 80, 83, 59 Ohio St. 3d 159, 161 (1991)

The issue of the prosecutorial versus the

adjudicative function in the context of the powers of the

NLRB has been well resolved in the circuits. There is

no conflict. These courts have found that a decision of

the NLRB General Counsel not to pursue a case, i.e., not

finding probable cause to issue a complaint or

withdrawing a previously issued complaint in light of

new evidence, is not reviewable in court as it is

essentially prosecutorial, and, therefore, not an

adjudication by the Board.'

Further, this denial of review has been uniformly

found not to constitute a deprivation of due process. In

' See, e.g., International Ass'n of Machinists v. Lubbers, 681 F.2d

598, 602-03 (9th Cir. 1982), cert. denied, 459 U.S. 1201 (1983); George

Banta Co. v. NLRB, 626 F.2d 354, 356-57 (4th Cir. 1980), cert.

denied, 449 U.S. 1080 (1981); Hernandez v. NLRB, 505 F.2d 119, 120

(5th Cir. 1974); Braden v. Herman, 468 F.2d 592, 593 (8th Cir. 1972),

cert. denied, 411 U.S. 916 (1973); Saez v. Goslee, 463 F.2d 214, 214-15

(1st Cir.), cert. denied, 409 U.S. 1024 (1972); National Maritime

Union v. NLRB, 423 F.2d 625, 626 (2d Cir. 1970); Mayer v. Ordman,

391 F.2d 889 (6th Cir.), cert. denied, 393 U.S. 925 (1968); Balanyi v.

Local 1031, IBEW, 374 F.2d 723 (7th Cir. 1967); Hourihan v. NLRB,

201 F.2d 187 (D.C. Cir. 1952), cert. denied, 345 U.S. 930 (1953);

General Drivers, Local 886 v. NLRB, 179 F.2d 492, 494-95 (10th Cir.

1950). Cf. Detroit Edison Co.v. NLRB, 440 U.S. 301, 316 (1979);

Vaca v. Sipes, 386 U.S. 171, 182 (1967) (instances where this Court

has presumed that NLRB prosecutorial decisions are not reviewable

in court).

International Ass’n of Machinists v. Lubbers, 681 F.2d

598 (9th Cir. 1982), cert. denied, 459 U.S. 1201 (1983),

the appellant asserted a "private right” in the

prosecution of its unfair labor practice charge and

demanded a hearing before the NLRB General Counsel

withdrew a complaint it had initially issued in the case.

The Ninth Circuit, while noting that parties often have

important rights in the context of an NLRB proceeding,

also noted that this right has never been held to be a

constitutional right. It ultimately found that it did not

in fact rise to that level. Correspondingly, no review

was required. Machinists, 681 F.2d at 603-604.

In Saez v. Goslee, 463 F.2d 214 (1st Cir.), cert.

denied, 409 U.S. 1024 (1972), the First Circuit was also

confronted with a due process challenge to this denial of

review. Finding that "it is doubtful that appellant has

an ’entitlement’ to have an unfair labor practice

complaint issue in the same sense that, for example, a

welfare recipient has a statutory entitlement to

benefits," and that the remedies of the LMRA protect

“public rather than private rights,” the First Circuit

refused to elevate the right to constitutional status.

Saez, 463 F.2d at 215. Even if the "right" was protected

by the Due Process Clause, the court did not deem it

serious enough to warrant the requirement of a hearing.

The court juxtaposed the "right" to review of a decision

by the NLRB not to issue a complaint with the

termination of welfare benefits at issue in Goldberg v.

Kelly, 397 U.S. 254 (1970), and found the former to be

much less "essential to an individual’s continued

existence." Saez, 463 F.2d at 215. See also Braden v.

Herman, 468 F.2d 592, 593 (8th Cir. 1972), cert. denied,

411 U.S. 916 (1973) (emphasizing the public nature

served by the LMRA as reason to deny constitutional

status to a charging party’s "right" in an unfair labor

practice proceeding).

There is, in short, no conflict between the circuit

courts as to the constitutionality of the denial of review

of NLRB’s prosecutorial functions under the Due Process

Clause of the Fifth Amendment. Because SERB acts in

much the same manner as NLRB, and due process

concerns have been addressed by the circuits, there is no

conflict between the Supreme Court of Ohio and any

circuit court on this issue.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,