Opposition Brief — Cole v. Huntsville Memorial Hospital

No. 96-1142

In The

Supreme Court of the United States

October Term, 1996

e a

THOMAS C. COLE, JR. M.D.,

Yotaty? y

Petitioner

HUNTSVILLE MEMORIAL HOSPITAL,

Respondent.

.

On Petition For Writ Of Certiorari

To The Texas Court Of Appeals

[First Dist.] Houston, Texas

¢—

RESPONDENT'S BRIEF IN OPPOSITION

+

KertH S. DUBANEVICH

Counsel of Record

WituraM J. Boyce

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

Telephone: (713) 651-5151

Facsimile: (713) 651-5246

Counsel for Respondent

Huntsville Memorial Hosvital

COCKLE LAW BRIEF PRINTING CO., (800) 225-

OR CALI COLLECT (402) 342-2831

QUESTION PRESENTED

Did the court of appeals properly conclude that no

state action was implicated when the Hospital decided

not to renew Cole’s staff privileges, given that

(1) Cole never pleaded a first amendment

claim as to the Hospital;

(2) Cole never argued in the trial court, on

appeal, or in the Texas Supreme Court that

a different level of scrutiny should be

afforded to the state action inquiry to

accommodate his unasserted first amend-

ment claim;

the Hospital was not accused of racial dis-

crimination against Cole, resulting in a

more narrow construction of the state

action concept;

the Hospital, rather than the Walker

County Hospital District, was ultimately

responsible for daily maintenance and —

operation of its facility;

no benefit to the Walker County Hospital Dis-

trict was directly attributable to the decision

not to renew Cole’s staff privileges;

the Walker County Hospital District had no

power to change the Hospital’s decision,

and did not directly or indirectly partici-

pate in the decision not to renew Cole’s

staff privileges; and

Cole identifies no conflict between the

decision below and any published deci-

sions by this Court or any other court.

LIST OF PARTIES

Petitioner

Thomas Cole, M.D.

1203 Avenue J

P.O. Box 119

Huntsville, Texas 77340

Petitioner’s Counsel:

C.L. Ray

400 W. 15th Street, Suite 600

Austin, Texas 78701

Respondent

Huntsville Memoria! Hospital

Its Counsel:

Keith S. Dubanevich

William J. Boyce

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

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TABLE OF CONTENTS

Page

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STATEMENT OF THE CASE..................0000. 1

REASONS FOR DENYING THE WRIT............. 2

I. Cole Pleaded No First Amendment Claims

EE inns swe nue nnt/ae ehawa ey od 3

II. Cole Never Argued Below That Free Speech

Interests Are Implicated, Or That Such Interests

Mandate A Different State Action Analysis .... 4

I as Wik ihe did ta 0 geo 60 ak ae an 7

TABLE OF AUTHORITIES

Page(s)

CASES

Albright v. Longview Police Dept., 884 F.2d 835 (5th

et: CD.» kkeee read anv baancesete hisuawesenteaenes 6

Beck v. Washington, 369 U.S. 541 (1962)............. >, ©

Capital City Dairy Co. v. Ohio, 183 U.S. 238 (1902)..... +

City of Houston v. Clear Creek Basin Auth., 589

Oe see OER Ra WE ied skh cdacaden seekeust easel 5

F. G. Oxley Stave Co. v. County of Butler, 166 U.S.

tt er re err ry yee ae Or Orr Rt ee 4

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ......... 3

Greco v. Orange Memorial Hosp. Corp., 513 F.2d 873

(5th Cir.), cert. denied, 423 U.S. 1000 (1975)......... 6

Harding v. Illinois, 196 U.S. 78 (1904)................. 4

Herndon v. Georgia, 295 U.S. 441 (1935)............. 4,6

sitsnets v. Gates, 462 US. Zid CIPGB) «nce cccsvccccess 6

Jatoi v. Hurst-Euless-Beford Hospital Auth., 807 F.2d

1214 (5th Cir. 1987), cert. denied, 484 U.S. 1010

CR acs SAS eRe ence eT Cae tas aoe ka eee 5, 6

vurme. ©. FEOOO, GGL US. Ge CGE inc occ ccc cae kwensacs 4

et 0. Eeceudeko, SUS US. SID CUSED. ow os ccc vccevcces 6

STATUTES INVOLVED

Cole’s reference to the first amendment is super-

fluous because Cole never pleaded a first amendment

claim against the Hospital. App. at 39.

+

STATEMENT OF THE CASE

Respondent Huntsville Memorial Hospital incorpo-

rates by reference the statement of the facts from the

opinion below.

The Hospital notes the following misstatements and

omissions in the petition.

Cole contends he was subjected to retaliation because

of his activities while he was a member of the Walker

County Hospital District Board. Petition at 11. How-

ever, the initial recommendation not to renew his

privileges was made in August 1987. Cole was not

elected to the district board until November 1987.

Cole asserts that the Hospital District agreed to pay

certain operating expenses. Petition at 7. These pay-

ments were merely advances which have since been

repaid by the Hospital.

Cole’s references to the submission of a plan of opera-

tion for approval by the Hospital District (Petition at

8-9) are irrelevant because these provisions came into

play only if the Hospital opted not to contract with a

professional hospital management company. The Hos-

pital contracted with HCA Management Company,

Inc. and Quorum Health Resources to operate the

Hospital. Therefore, the provisions with respect to

plans or approval of such plans by the Hospital Dis-

trict were not in effect.

¢ Contrary to Cole’s assertion at page 15 of the Petition,

the Hospital was not formed to carry out a public

purpose of the Hospital District. The Hospital was

incorporated in 1927; the Hospital District was not

created until 1971.

REASONS FOR DENYING THE WRIT

The facts of this case do not raise the issue put forth

in Cole’s petition.

Cole’s petition berates the court of appeals for

“choosing to ignore the First Amendment claims” (Peti-

tion at 18) and for not considering whether the state

action standard “should require deference to the First

Amendment” (Petition at 14). Cole’s belated effort to

conjure up a constitutional issue worthy of this Court’s

ittention must be rejected because Cole

¢ did not assert a first amendment claim against the

Hospital; and

e did not argue to any court below that the conven-

tional standards for determining whether state action

occurred should be altered based upon the presence

of his purported first amendment claims.

In essence, Cole (who has been represented by coun-

se] throughout these lengthy legal proceedings) com-

plains that the court of appeals erred by tailing to

consider claims he never asserted, arguments he never

made, and theories he never raised.

*

I. Cole Pleaded No First Amendment Claims Against

The Hospital

Paragraph 26 of Cole’s live pleading complains in

generic fashion that the Hospital deprived him of “rights,

privileges, or immunities secured by the Constitution and

laws under color of law.” App. at 39. Nowhere in that

pleading does Cole refer to the first amendment or free

speech rights in connection with his claims against the

Hospital.

Cole’s petition tries to obscure this fact by combining

cites to his pleading against the hospital with cites and

quotes from a separate lawsuit asserting separate claims

against a separate group of defendants — namely, a collec-

tion of individual doctors. See Petition at 12-13 (citing

“App. at 44, 45” and “App. at 37-45”).

Unlike Cole’s generic complaint in his pleading

against the Hospital (App. at 39), his pleading against the

individual doctors (beginning at page 40 of his Appen-

dix) specifically alleged that Cole’s “legal right to free

speech” had been abridged by the indiv‘dual doctors.

App. at 44.

Of course, Cole’s complaints against the individual

doctors are immaterial for purposes of section 1983

because the actions of these private citizens were not

alleged to constitute - and cannot constitute - state

action. Cole’s claims involving the individual doctors

were resolved on independent and adequate state law

grounds when the court of appeals affirmed the striking

of all of Cole’s claims as a proper sanction for discovery

abuse under state procedural standards. App. 17-27. See,

e.g., Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)

(Supreme Court’s “jurisdiction fails” if state court judg-

ment rests upon independent and adequate state law

grounds).

When one focuses solely upon Cole’s pleading

against the Hospital, it becomes apparent that the first

amendment claim discussed in his petition for writ of

certiorari is an after-the-fact invention. Global references

to the “Constitution of the United States,” the “Constitu-

tion and laws of the United States,” or similarly broad

phrases are insufficient to raise a federal question predi-

cated on a particular portion of the federal Constitution.

Webb v. Webb, 451 U.S. 493, 496-98 (1981); Herndon v.

Georgia, 295 U.S. 441, 443 (1935); Harding v. Illinois, 196

U.S. 78, 88 (1904); Capital City Dairy Co. v. Ohio, 183 U.S.

238, 248 (1902); F. G. Oxley Stave Co. v. County of Butler,

166 U.S. 648, 655 (1897).

As Cole’s own appendix makes plain, he asserted no

first amendment claim against the Hospital. It follows

that he cannot now inject such a claim into this case in a

belated effort to put a first amendment spin on this run-

of-the-mill fight over hospital privileges.

II. Cole Never Argued Below That Free Speech Inter-

ests Are Implicated, Or That Such Interests Man-

date A Different State Action Analysis

Cole’s tactic cannot succeed even if one assumes he

pleaded a first amendment claim against the Hospital

with sufficient particularity. Cole never asserted below

that the presence of this purported first amendment claim

required a different level of scrutiny in connection with

ul

the inquiry into whether the Hospital’s activities consti-

tute state action.

Cole appealed from the state trial court’s grant of

summary judgment in favor of the Hospital. Cole’s

response to the Hospital’s motion for summary judgment

neither mentions the first amendment nor asserts that the

state action issue should be evaluated differently due to

the presence of purported first amendment claims. App.

at 47-56.

In his summary judgment response, Cole framed the

constitutional issue solely in terms of whether (1) he

enjoyed a protected property interest in the continuation

of his medial staff privileges at the Hospital; and (2) he

was deprived of this asserted property interest without

due process. App. at 50-51. Although the court of appeals

noted Cole’s newly raised contention on appeal that he

had asserted a first amendment claim against the Hospi-

tal (App. at 4), the court’s opinion did not address that

purported claim separately in conformity with state pro-

cedure precluding consideration on appeal of grounds for

defeating summary judgment that were not raised by the

non-movant in its response to the summary judgment

motion. See City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 677-79 (Tex. 1979); see also Beck v. Washington,

369 U.S. 541, 549-54 (1962) (federal question must be

raised in state court in the manner and with the degree of

specificity required by state rules of practice).

In any event, Cole never asserted below that the state

action inquiry should be handled differently based upon

the presence of purported free speech violations. App. at

51-56. Instead, he relied upon Jatoi v. Hurst-Euless-Beford

SPE NRE ERR oe cs

6

Hospital Auth., 807 F.2d 1214 (5th Cir. 1987), cert. denied,

484 U.S. 1010 (1988). App. at 54-55. The court of appeals

properly recognized that Jatoi is inapplicable because it

involved claims of racial discrimination which are absent

here. App. at 7. The court then predicated its state action

analysis on the factors enumerated in Albright v. Longview

Police Dept., 884 F.2d 835, 841 (5th Cir. 1989), and Greco v.

Orange Memorial Hosp. Corp., 513 F.2d 873, 877 (5th Cir.),

cert. denied, 423 U.S. 1000 (1975). App. at 7-11.

Cole’s application for writ of error to the Texas

Supreme Court makes no mention whatsoever of his new-

found contention that the state action inquiry should be

affected by the presence of purported free speech inter-

ests. App. at 74-76. Cole merely quibbles with the court of

appeals’ weighing of the non-speech factors discussed in

Jatoi, Albright, and Greco. App. at 74-76. In fact, the peti-

tion for writ of certiorari itself really does not take issue

with the court of appeals’ analysis of these three cases;

instead, Cole criticizes that court for failing to consider a

factor he never asked it to consider. See Petition at 18.

This Court will not review a judgment rendered by

the highest court of a state unless the claimed federal

question at issue has been raised and decided in the state

court below. Yee v. Escandido, 503 U.S. 519, 533 (1992) (in

reviewing judgments of state courts under 28 U.S.C.

§ 1257, Court will refuse to consider claims that were not

raised or addressed below); Illinois v. Gates, 462 U.S. 213,

217-18 (1983) (same). See also Beck v. Washington, 369 U.S.

at 550-53 (because petitioner failed to raise argument in

state court that state statute denied equal protection,

question was not before the Supreme Court); Herndon v.

HAAR iintit, . aii aT

7

Georgia, 295 U.S. at 443 (failure to follow the appellate

channels provided by the state court is fatal).

Cole’s utter failure to present his free speech theory

for consideration by the Texas state courts is sufficient by

itself to justify denial of the petition for writ of certiorari.

Cole’s simultaneous failure to explain precisely how the

court of appeals’ decision in this case conflicts with any

other cases addressing the state action question under-

scores the lack of merit of his petition. See Petition at 18.

+

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

KeitH S. DUBANEVICH

Counsel of Record

WiLuraM J. Boyce

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

Telephone: 713/651-5151

Telecopier: 713/651-5246

Counsel for Respondent

Huntsville Memorial Hospital