Opposition Brief — Smith v. Alabama Aviation & Technical College

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No. 96-1171

In The

Supreme Court of the United States

October Term, 1996

ALTON WAYNE SMITH,

Petitioner,

SHIRLEY WOODIE, individually and in her official

capacity as President of Alabama Aviation and

Technical College, FRED GAINOUS, in his official

capacity as Chancellor, and JOHN FERGUS,

individually and in his official capacity as Dean of

Instruction of Alabama Aviation and Technical College,

Respondents.

On Petition For A Writ Of Certiorari

To The Alabama Supreme Court

BRIEF IN OPPOSITION

JEFFERY A. FOsHEE

Counsel of Record for Respondents

EpwarpD M. GEORGE

FosHEE & Georce, L.L.C.

900 South Perry Street

Suite B

Montgomery, Alabama 36104

(334) 265-1960

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does this Court lack jurisdiction to consider Peti-

tioner’s argument, since the issues presented to this

Court were neither decided nor timely presented to Ala-

bama’s courts?

2. Does this Court lack jurisdiction to consider Peti-

tioner’s argument, since the state court decision rests

upon adequate and independent state grounds, in that:

a. The Supreme Court of Alabama decision was

expressly based upon a nonfederal ground?

b. The Supreme Court of Alabama is presumed to

have based its deniat of rehearing on a state ground?

c. The trial court’s decision was also based upon the

limitations period lapsing?

d. The trial court’s decision was also justified by

Petitioner’s failure to timely oppose Respondents’

motions for summary judgment?

3. Was Alabama’s application of its rules of practice

and issue preclusion to Petitioner’s 42 U.S.C. § 1983 claim

a valid exercise of State authority?

4. Are the issues presented by Petitioner to this

Court such that they do not warrant this Court’s atten-

tion, since they relate only to the Petitioner and whatever

few other litigants whose counsel might choose to ignore

Alabama’s rules of practice for seeking judicial review of

agency decisions?

LIST OF INTERESTED PERSONS

The Petitioner is correctly identified, in the caption to

the Petition for Writ of Certiorari, as Alton Wayne Smith.

The Respondents are not correctly identified in the

caption to the Petition. Dr. Shirley Woodie, both in her

individual capacity and in her official capacity as Presi-

dent of Alabama Aviation and Technical College, is cor-

rectly identified as a Respondent. Mr. John Fergus, both

in his individual capacity and in his official capacity as

Dean of Instruction at Alabama Aviation and Technical

College, is also correctly identified as a Respondent.

However, Alabama Aviation and Technical College is not

a Respondent to the Petition. Although Alabama Aviation

and Technical College was named as a defendant to Peti-

tioner Smith’s amended complaint, Petitioner did not

appeal the trial court’s entry of summary judgment in

favor of said college. See Petition, at p. B-7. Furthermore,

with respect to Dr. Fred Gainous, he was named as a

defendant, to the amended complaint, both individually

and in his official capacity as Chancellor. However, on

appeal the Petitioner specifically stated that he was not

challenging the trial court’s grant of summary judgment

to Dr. Gainous individually. Brief of Appellant Alton Wayne

Smith [to the Alabama Court of Civil Appeals], at p. 18.

Consequently, Dr. Fred Gainous is a Respondent, to the

instant Petition, only in his official capacity as Chancellor.

iii

TABLE OF CONTENTS

Oy ee Ee | 0

kaos Ge INTERESIEO PARTIES ...............00..

OR ee 5 nr

SIATEMEN!T OF JURISDICTION...................

CONSTITUTIONAL PROVISIONS, STATUTES, AND

SD RE WEIMER a cast aswcctceevevicvevaces

B. Course Of Proceedings And Disposition Of The

RENE Pe ee ee ee DO ae a

C. Correction Of Misstatements In The Petition....

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

I. THIS COURT LACKS JURISDICTION TO

CONSIDER PETITIONER’S ARGUMENT

SINCE THE ISSUES PRESENTED WERE NOT

DECIDED NOR TIMELY PRESENTED TO

eg Se SE re

Il. THIS COURT LACKS JURISDICTION TO

CONSIDER PETITIONER’S ARGUMENT,

SINCE THE STATE COURT DECISION RESTS

UPON ADEQUATE AND INDEPENDENT

EE oS eke valcikted Viv berkeues

A. The Supreme Court Of Alabama Decision

Was Expressly Based Upon A Nonfederal

ease hind Ls Step ah ce Ae Gakn on 6's

TABLE OF CONTENTS - Continued

Page

B. The Supreme Court Of Alabama Is Pre-

sumed To Have Based Its Denial Of

Rehearing On A State Ground........... 15

C. The Trial Court’s Decision Was Also Based

Upon The Limitations Period Lapsing... 15

D. The Trial Court’s Decision Was Also Justi-

fied By Petitioner’s Failure To Timely

Oppose Respondents’ Motions For Sum-

i SET eee eee Tre 19

III. ALABAMA’S APPLICATION OF ITS RULES

OF PRACTICE AND ISSUE PRECLUSION TO

PETITIONER’S SECTION 1983 CLAIM WAS A

VALID EXERCISE OF STATE AUTHORITY .. 22

IV. THE ISSUES PRESENTED BY PETITIONER TO

THE COURT DO NOT WARRANT THIS

COURT’S ATTENTION, SINCE THEIR RESO-

LUTION LIKELY AFFECTS ONLY THE PETI-

TIONER AND POSSIBLY A FEW OTHER

LITIGANTS WHOSE COUNSEL MAY POTEN-

TIALLY IGNORE ALABAMA’S RULES OF

PRACTICE FOR SEEKING JUDICIAL REVIEW

CP Agere EP Oe cscs acc cswseeewess 28

CAPE ceaken ses 86k oneness eoeadae ney ue ees 30

TABLE OF AUTHORITIES

Page

CASES:

Amalgamated Food Employees Union v. Logan Valley

FUG, Fl UD. FOO CEPR: sine osteukees sie siaeee, 9

Bailey v. Anderson, 326 U.S. 203 (1945)............ 10, 15

Bank of Southeast v. Keslin, 380 So. 2d 826 (Ala.

SOD wis 5 bs knw d's cow ee ae oneal ae ee 19

Bankers Life and Casualty Co. v. Crenshaw, 486 U.S.

Ot. | Pereeeeeeer err er Pee eee ee ery 10

Bland v. State, 277 Ala. 4, 166 So. 2d 735 (Ala. 1964) .... 22

Board of Regents v. Tomanio, 446 U.S. 478 (1980)...... 17

Boyd v. Brabham, 414 So. 2d 931 (Ala. 1982) ......... 19

Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673

4 ere re re re es ry err ne rr reer 10

Central Union Tel. Co. v. Edwardsville, 269 U.S. 190,

6 SAA. SO, FO EB Fae CRs on ieee coe aeeeceess 14

Chatham v. CSX Transportation, Inc., 613 So. 2d 341

Fe | PP Pere Pee rere ie me AE rhe eur 20

City of Birmingham v. Community Fire District, 336

Oe eg ee Oe. | ere ee re ee eonee 19

Copperwell Steel Co. v. Industrial Con., 324 U.S. 780,

65 S.Ct. 1006, 69 L.Ed. 1363 (1945). ... 2... .:0sces- 14

Edelman v. California, 344 U.S. 357, 73 S.Ct. 293, 97

iat. Te SOD « cok ote hes haces eee eee 14

Elder v. Wood, 208 U.S. 226, 28 S.Ct. 263; 52 L.Ed.

ee Oe na 17

TABLE OF AUTHORITIES —- Continued

Page

Ex parte Shelby Medical Center, Inc., 564 So. 2d 63

(Ala. 2990) oo6 oi onc SRR 24

Ex parte Averyt, 487 So. 2d 912 (Ala. 1986)....... 27, 28

Ex parte Smith, 638 So. 2d 431 (Ala. 1996), petition for

writ of cert. filed, 65 U.S. 3531 (Jan. 23, 1997)........ 1

Fields v. State ex rel. Jones, 534 So. 2d 615 (Ala. Civ.

App. 1967) « «os .+isceetéas anna cee ee eee 12

Free v. Granger, 887 F.2d 1552 (11th Cir. 1989)....... 16

Gottschalk v. Hegg, 89 S.D. 89, 228 N.W. 2d 640

(WOZS) 0... os 00niwee kipine sees eens ene nan 26

Guess v. Snyder, 378 So. 2d 691 (Ala. 1979) .......... 20

Hammerstein v. Superior Court of California, 341 U.S.

491, 71 S.Ct. 820, 95 L.Ed. 1135, reh. denied, 342

US. 843, 72 S.Ct. 21, 96 L.Ed. 6397 (1953).......... 14

Hardy v. Birmingham Board of Education, 634 So. 2d

S74 (Ala.Civ. Age. T9OG). << sc¢5nccuheeen genes eee 12

Harold Brown Bldrs., Inc. v. Jordan Co., 401 So. 2d 36

(Ala. T9GE) «05.5.5 c0sdcatnnactneeee see eeeeeeeEee 20

Herman v. City of Chicago, 870 F.2d 400 (7th Cir.

BOOS) o.oo 6's nik s w:00in 0-9 ew ace wegen aa gem 17

Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794

9) eR re em ee 10, 13

Holland v. Barton, 600 So. 2d 233, Ala. LEXIS 1147

(Als. TORE) oo 6s0:6:0s'ekeve ce beeen eee ee 16

Hughes v. Britnell, 554 So. 2d 1041 (Ala. Civ.

App. 1989), cert. denied, 596 So. 2d 56

CRSGB} nc cisconewetaduceamenee 11, 12, 18, 21, 26, 28

Vii

TABLE OF AUTHORITIES - Continued

Page

Jones v. Preuit & Mauldin, 876 F.2d 1480 (11th Cir.

BONS 65.0850 bO REET IMEC CESS REUNE DER Red ANS hed es 16

McCoy v. Shaw, 277 U.S. 302, 48 S.Ct. 519, 72 L.Ed.

a Prt eres reve reer res rer ert rer rer 14

McKinney v. City of Birmingham, 409 U.S. 895

NIE y ccsie Sh AS AE SPOT HT OT OTe EEE ee 13

McKinney v. Parsons, 423 U.S. 960 (1975) ............ 13

McMillan, Ltd. v. Warrior Drilling and Engineering

Co., tme., Fae Se. 2 1G CAM, TODS) a wins oon cs neve 19

McQuade v. Trenton, 172 U.S. 656, 19 S.Ct. 292, 43

ee FR reer erereer mere yes aye 14

Mellon Co. v. McCafferty, 239 U.S. 134, 36 S.Ct. 94,

ee ee TPT TE ee ee ETT TET eT 14

Michel v. Louisiana, 350 U.S. 91 (1955)................ 9

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291 (1903) .... 10

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41,

Pio me oe Sot | errr rere rr er 26

Ortiz v. City of Imperial, 884 F.2d 1312 (9th Cir.

) Beer ce Sree ey eer eee en ee eee 17

Paschall v. Christie-Stewart, Inc., 414 U.S. 100, 94

S.Ct. 313, 38 L.Ed. 2d 298 (1973), 46 OGR 198,

reh. denied, 414 U.S. 1138, 94 S.Ct. 884, 38 L.Ed.

2d 763, conformed to, 53 OGR 210, 544 P.2d 505,

cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49

Ee Aes a ca wkend ee ee eee 13, 17,

Patsy v. Board of Regents, 457 U.S. 496 (1982)........

Prudential Federal Savings and Loan Association v.

Flanigan, 478 U.S. 1311, 107 S.Ct. 38, 92 L.Ed.2d

gt | PP Ee Tee eee ee eT eT ee Ty eee eee

Vili

TABLE OF AUTHORITIES —- Continued

Page

Purves v. PPG Industries, Inc., 502 So. 2d 714 (Ala.

2p PE Ree ang RAEI I ie oP rer ate g ueMr anne A 21

Radio Station WOW uv. Johnson, 326 U.S. 120

CRONE 4 ood RoR ew Nba eee AE eae ee ek 10, 13, 15

Rogers v. Jones, 214 U.S. 196, 29 S.Ct. 635, 53 L.Ed.

gt eee rere err re 17

Seneca Nation v. Christy, 162 U.S. 283, 16 S.Ct. 828,

ee | rrr eer ree 17

Shows v. Gonnell Trucking Co., 631 So. 2d 1010 (Ala.

CONE ox oS sab nae nw 85a ee 20

Smith v. Alabama Aviation & Technical College, 683

So. 2d 426 (Ala. Civ. App. 1995), affirmed, 683

ae Eos | eer re rere E Meter er Pete 20

Southern Guaranty Ins. Co. v. First Aiabama Bank,

SGD So. Za 7SE TAM. DIGG) ooo ass vcwcvcanceccvesss 20

Stallings v. Angelica Uniform Co., 388 So. 2d 942

Cc <3 sy xi-e.Potaay Chae as ant ntca eatin a ee ew tees 20

Stembridge v. Georgia, 343 U.S. 541 (1952)............ 13

Street v. New York, 394 U.S. 576 (1969) ............... 9

weno ©. Weoo, 451 UD. BSd (AGE). oc. cc icc eden, 10

Williams v. Georgia 349 U.S. 375 (1955) ....... 14, 24, 25

Wood v. Chesborough, 288 U.S. 672, 33 S.Ct. 706, 57

Se CRORE hk 5 GAs a ae aaa enna need 17

CONSTITUTIONAL AND STATUTORY AUTHORITIES:

ee BU 8) eee ee 1, 16

Ala. Code § 16-24-30-38 (1975)...........cccceeeee ees 1

TABLE OF AUTHORITIES - Continued

Page

Als. Code § 36-26-100-108 (1973)... 62. cvcvevscccsess 1

Ala. Code § 41-22-20(k)(1) (1975)............... ‘ig Oe

rs EE bach ete o nes ekdncactavviseunen 1, 9

£8 | ert ere ee er ee reer re passim

gt Tee SRP er Pree CT oP err eee ee passim

United States Constitution, First Amendment....1, 6, 7

United States Constitution, Fourteenth Amend-

OTHER AUTHORITIES:

Jeffery F. Ghent, Noncompliance With State Pro-

cedural Rule As Constituting ‘Adequate Ground’

For Denial Of Relief So As To Preclude Supreme

Court Review Of Federal Question, 24 L.Ed. 2d

eS Re ee er ey ae 17

S. Baker, A Practical Guide to Certiorari, 33 Cath.

Tea ee ee, Ee CED in ocokenbcnacden tense sos 29

meee THE PHN a oo 5555s nnn ce cew tune veeedss 1

go ae OE A OPPTeer Terre e rire rr err tere Te 1

ge OR NG a arr re rrr eee 1, 16

aS Bes es es I Bc on kc nn s Seas eseesessunes 1, 16

eR ek See L, Za, 22

ge. Se ee a ES eeerrrerrreerre 1, 7, 3, 2

R. Stern et al., Supreme Court Practice (7th ed.

sis orate as Kia eae eee 9, 10, 29

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents request that the Court deny the instant

petition for writ of certiorari (hereinafter referred to as

the “Petition”) seeking review of an opinion of the

Supreme Court of Alabama. The Supreme Court of Ala-

bama opinion is reported as Ex parte Alton Wayne Smith,

638 So. 2d 431, 1996 LEXIS 173 (Ala. 1996), petition for writ

of cert. filed, 65 U.S. 3531 (January 23, 1997) (No. 96-117).

STATEMENT OF JURISDICTION

Because the questions presented for review in the

petition were not timely presented to the Supreme Court

of Alabama, this Court cannot properly exercise jurisdic-

tion over this case pursuant to 28 U.S.C. § 1257(a). See pp.

9-13 below. Nor does this Court possess jurisdiction over

this case since the Supreme Court of Alabama decision

and trial court judgment were based upon adequate and

independent state grounds. See pp. 13-22 below.

CONSTITUTIONAL PROVISIONS, STATUTES,

AND RULES INVOLVED

The constitutional provisions involved in this case

include the First and Fourteenth Amendments to the

United States Constitution. The federal statutes involved

are 28 U.S.C. § 1257(a), 42 U.S.C. § 1983, and 42 U.S.C.

§ 1988. Pertinent state authority incluces Ala. Code

§ 6-2-38 (1975); Rules 1(c), 9(h), 15(c), and 56, Ala. R. Civ.

P.; Rule 28(a)(5), A.R.A.P.; the Revised Hearing Procedure of

the Alabama State Board of Education; and, according to

the Supreme Court of Alabama, also Ala. Code

§§ 36-26-100-108 and § 41-22-20(k)(1) (1975). Although the

Petitioner asserts that Ala. Code § 16-24-30-38 (1975) is

among the pertinent state statutory authority (see Petition,

at pp. 2, 1-14-20), said section (relating exclusively to

Alabama public elementary and secondary teachers, and

having no relationship to Petitioner and other Alabama

two-year college teachers) has no relevance whatsoever

to this case. Insofar as the Petitioner states that the Equal

Protection Clause to the Fourteenth Amendment to the

United States Constitution is involved, said Clause is not

pertinent to this appeal since, although Petitioner’s

amended complaint included an allegation that his right

to equal protection of the laws had been abridged, on

appeal through Alabama’s appellate courts, Petitioner

abandoned such allegation.

STATEMENT OF THE CASE

A. Statement Of Facts

Petitioner Alton Wayne Smith was employed, as a

tenured (“nonprobationary”) instructor of avionics, at

Alabama Aviation And Technical College (hereinafter

referred to as the “College”), a trade school located in

Ozark, Alabama. Petitioner Smith’s employment was ter-

minated for “good and just causes,” set forth in an

August 28, 1991 written notice of termination from Dr.

Shirley Woodie, President of the College. C-184-192;

C-153-192.! Petitioner was fired for those reasons alone,

and not for arbitrary, political, or personal reasons, such

as Petitioner’s having exercised his First Amendment free

speech rights through allegedly making remarks critical

of former or then current college officials or education

policies. C-153-192.

The College presented to an administrative hearing

panel (the “employee review panel”), which heard Peti-

tioner’s appeal of his firing, and to the trial court, over-

whelming proof that President Woodie had much more

1 The “record on appeal” to the Alabama Court of Civil

Appeals and Supreme Court of Alabama, recording the

proceedings before the Circuit Court of Dale County, Alabama

(the “trial court”) and the court reporter’s transcription of a

hearing before the administrative body known as the

“employee review panel,” is contained in ten volumes, which

are consecutively page-numbered and which will be referenced

herein as “C Page.”

caper et ne

PT ES

than ample reasons to fire Petitioner. C-115-152. The evi-

dence as to why Petitioner’s employment was terminated

(C-115-900), demonstrated the extremely improper, and

indeed bizarre, behavior in which the Petitioner engaged.

For example, for three consecutive days, Petitioner dis-

tracted another instructor, and that instructor’s class, by

appearing on the other side of a glass wall (at the rear of

the classroom), making the obscene gesture known as

“flipping the bird,” and mouthing other obscenities such

as “youM...F...” C-146. On two other days, Petitioner

blocked a college hallway and made physically threaten-

ing motions toward another teacher (C-146). On various

other occasions, Petitioner made comments which led

other instructors to believe that he may have poisoned

their coffee with battery acid. C-151; C-158.

Petitioner also deliberately committed numerous vio-

lations of the College’s written sick leave policy (see

Petition, at pp. B-2-3; C-117-34; C-156-57), including one

occasion when Petitioner stated that he had to be on sick

leave for an entire week due to supposed emergency sur-

gery, in Jacksonville, Florida, on his wife. However, as the

records from Mayo Clinic - Jacksonville and St. Luke’s

Hospital made quite evident, Petitioner’s wife did not

have emergency surgery but instead had elective cos-

metic breast reduction surgery, which her physician had

indicated months before could be scheduled at her conve-

nience. During the following week, Petitioner asserted to

College officials that it was necessary for him to miss all

his classes for that entire week to take care of his wife,

when, in fact, he did not need to attend to his wife.

C-117-34.

Petitioner’s misconduct also included other serious

aspects. Petitioner often, without advance warning or

explanation, would exit his classroom, leaving his stu-

dents without supervision. Petition, at p. B-3. When he

remained in class, further problems developed, because

Petitioner failed to follow the syllabus for the course he

was teaching, tested students on material which had not

SRNR me

been covered in class or otherwise assigned, and inap-

propriately discouraged student questions. Petition, at p.

B-3; C-158; C-141-42. Indeed, student dissatisfaction with

Petitioner became so great that a relatively large group of

students “en masse” refused to register for the Fall 1990

quarter unless they were assured that Petitioner would

not be their instructor. Petition, at p. B-3. Furthermore, on

July 19, 1991 all 14 of the students in one of Petitioner’s

classes signed and delivered to Respondent Fergus a

unanimous petition of protest, listing their specific com-

plaints about Petitioner. Petition, at p. B-3; C-137;

C-139-40.

soem

B. Course of Proceedings And Disposition Of The

Case Below

The administrative proceedings regarding the appeal

of Petitioner’s termination were conducted pursuant to

the “Revised Hearing Procedure” of the State Board of

Education. Petition, at p. B-2. The Revised Hearing Pro-

cedure provides for the same administrative appeal pro-

cess as does the “Fair Dismissal Act,” codified at Ala.

Code §§ 36-26-100-108 (1975).

Pursuant to the process set forth in the Procedure, on

August 28, 1991, President Woodie delivered a written

“notice of termination” of employment. C-153-154;

183-207. The notice stated the reasons for the termination,

informed Petitioner of his right to administratively con-

test and appeal the President’s decision, advised Peti-

tioner as to which persons may be called to testify on

behalf of the College in the event of arn appellate hearing, i

and described the witnesses’ potential testimony. Under

the Procedure, if Petitioner desired to appeal his firing,

then he had fifteen days in which to file a written notice

of appeal and request a hearing before a three-person

hearing panel (called an “employee review panel”). Peti-

tioner timely appealed.

The Procedure further provides that the members of

the hearing panel are then to be selected, with the first of

three panel members being selected by the employing

college. The second panel member is selected by the

employee. The third panel member is chosen by a process

of elimination. Specifically, one or both parties request

that the local probate judge provide to the parties a list of

three persons whom the judge believes are able to render

an impartial decision. Upon receipt of such a list, the

employing college strikes one name from the list, and the

employee then strikes another name. The person remain-

ing on the list becomes the third panel member. This

selection process was followed in Petitioner’s appeal of

his termination from employment. Although Petitioner

attempts, in his Petition, to complain that the employee

review panel members were not attorneys, (and Peti-

tioner Smith claims that such worked to violate his fed-

eral rights — see Petition, at p. 13), Petitioner himself

voluntarily selected, as the second panel member, an

individual who was not an attorney.

During the employee review panel hearing (which

took place on October, 26, 1991, October 28, 1991, and

November 3, 1991), the College presented overwhelming

evidence that Petitioner had engaged in the inappropriate

behavior described hereinabove (and summarized in the

Court of Civil Appeals Opinion). Petitioner’s attorney

cross-examined the College’s witnesses, and presented

witnesses on behalf of Petitioner. During the hearing,

Petitioner challenged the accuracy of the charges made

against him, contended that his conduct was not inap-

propriate, argued that he was fired due to his filing a

State Board of Adjustment claim, and argued that he was

being fired for exercising his First Amendment right of

free speech in criticizing various people, policies, or

events. C-528-33; C-1498-1501; C-154; C-515.

After concluding the hearing, the panel issued its

unanimous, November 7, 1991, decision upholding the

termination of Petitioner’s employment as being for good

and just causes, not for personal or political reasons, and

as not being arbitrary or capricious.

On August 25, 1993, Petitioner filed, in Dale County,

Alabama Circuit Court, a complaint against the College,

Dr. Shirley Woodie (in her individual capacity only), and

various fictitious defendants. The complaint consisted of

four counts: (1) “Breach of Contract”; (2) “Breach of

Implied Covenant of Good Faith and Fair Dealing”; (3)

“Intentional Infliction of Emotional Distress”; and (4)

“Retaliatory Discharge”. C-5-7.

aa On November 8, 1993, after the applicable two-year

statute of limitations period had already run, Petitioner

filed an amended complaint, which attempted to add as

defendants Dr. Fred Gainous, individually and in his

official capacity as Chancellor, John Fergus, individually

and in his official capacity as Dean of Instruction of the

College, and Dr. Shirley Woodie in her official capacity as

President of the College. C-34-35. The pleading then pro-

ceeded to state a number of erroneous “factual” allega-

tions. (C-35-37) that Petitioner had made various

(presumably oral) comments, and had written various

letters, critical of his employer and/or its former officials.

een eR ETI

Petitioner also asserted that on or about August 28,

1991, he was notified that his employment was being

terminated, that thereafter a hearing was conducted on

the matter of the appeal of his termination, and that the

various allegations of misconduct presented to the

administrative hearing panel were not the true reasons

for his termination from employment, but that the true

reason he was fired was “to cause the Plaintiff to quit

exercising his First Amendment privileges and vocally

criticizing wasteful or dishonest practices of the Defen-

dants.” C-37. Petitioner neglected to explain why he con-

tended, in the amended complaint, that he was fired due

to his “free speech”, when he had asserted unequivocally

in his original Complaint that the “sole reason” he was

fired was because he filed a claim with the State Board of

Adjustment. C-6-7. The amended complaint presented

four additional counts. The count pertinent to this appeal

stated, in its entirety, that:

—

“The Plaintiff alleges that the Defendants are

liable to him under 42 U.S.C. § 1983 because

they violated his First Amendment right of free

speech.” C-38.

All of the Respondents filed joint motions to dismiss, or

in the alternative, motions for summary judgment

(C-111-112; C-1779), accompanied by voluminous supporting

affidavits, medical records, college records, and other evi-

dence. C-113-900; C-1722-1725. Pursuant to Rule 56 Ala. R.

Civ. P. (see Appendix B), a narrative summary of undisputed

material facts was also filed. C-115-149; C-1726-1761. In addi-

tion, in order to substantiate the Respondents’ collateral

estoppel/issue preclusion defense, a copy of the administra-

tive hearing record was filed. C-901-1721.

Thereafter, over a period of seven months, Petitioner

twice changed attorneys and was twice granted continu-

ances of the hearing on Respondents’ motions for sum-

mary judgment. See Petition, at Appendix B.

Eventually, the summary judgment hearing was reset

for July 25, 1994, but neither Petitioner nor his attorney

appeared at the summary judgment hearing. The trial

court entered a summary judgment for the Respondents

on August 12, 1994, holding that: all state claims against

the College and Respondents Woodie, Fergus, and

Gainous in their official capacities were due to be dis-

missed because of state immunity; that all federal claims

against the College were due to be dismissed because the

College was not a suable “person” under 42 U.S.C.

§ 1983; that all claims were barred (that is collaterally

estopped) by the employee review panel decision; that

the § 1983 claims were barred by the statute of limita-

tions; and that Petitioner had failed to state a valid claim

for relief under § 1983. C-1809-10; C-1790-1808.

On September 12, 1994, Petitioner filed a motion to

vacate or set aside the judgment, or in the alternative for

a new trial. C-1811-75. As grounds for this motion, Peti-

tioner alleged that he did not receive notice of the sum-

mary j:'«gment hearing conducted by the trial court on

July 25, 1994 (even though Court records showed that

notice was sent to Petitioner’s third attorney on June 21,

1994); that his complaint set forth a claim for relief under

§ 1983; and that the facts before the trial court created a

genuine issue of material fact. After conducting a hearing

on Petitioner’s motion, on October 25, 1994, the trial

court denied Petitioner’s motion, finding that it had not

erred in granting the Respondents’ motions for summary

judgment. C-1917-18.

Petitioner appealed the summary judgment, seeking

reversal and remand only as to the claim(s) purportedly

alleged, in his amended complaint, pursuant to 42 U.S.C.

§ 1983, as to Respondents Woodie, Fergus, and Gainous.

On June 16, 1995, the Alabama Court of Civil Appeals

affirmed, opining that issue preclusion was dispositive of

Petitioner’s Section 1983 claim(s). See Appendix B to Peti-

tion. On July 25, 1995, Mr. Smith filed an application for

rehearing, which was overruled on August 18, 1995.

Through his sixth and seventh attorneys, on Septem-

ber 1, 1995, Petitioner filed with the Supreme Court of

Alabama a petition for writ of certiorari. Thereafter, the

petition was granted. On June 28, 1996, the Supreme

Court affirmed the Alabama Court of Civil Appeals, and,

on October 25, 1996, overruled Petitioner’s application

for rehearing. See Appendices A and F to Petition. The

instant petition to this Court followed.

C. Correction Of Misstatements In The Petition

Although understandably not something which the

Petitioner desires to mention, the facts of the case were

accurately set forth in the Alabama Court of Civil

Appeals decision, attached to the Petition as Appendix B

thereto. As noted in the Constitutional Provisions, Statutes,

And Rules Involved section hereinabove, Petitioner is mis-

taken about the applicability of certain constitutional pro-

visions and statutes to this case. Petitioner is also

mistaken, in several respects, with regard to what the

Supreme Court of Alabama held, what was and was not

procedurally required of Petitioner, and the consistency

of the decisions below with other pertinent precedent.

For convenience and clarity, the relevant misstatements

are addressed in the Argument below.

REASONS FOR DENYING THE WRIT

I. THIS COURT LACKS JURISDICTION TO CON-

SIDER PETITIONER’S ARGUMENT, SINCE THE

ISSUES PRESENTED WERE NEITHER DECIDED

NOR TIMELY PRESENTED TO ALABAMA’S

COURTS

This Court lacks jurisdiction to consider the ques-

tions presented in the Petition because such questions

were neither decided by, nor timely presented to, Ala-

bama’s courts. 42 U.S.C. § 1257 requires, of course, (a)

that there be a final judgment or decree rendered by “the

highest court of a State in which a decision could be

had,” and (b) that the final judgment must reflect a sub-

stantial federal question that has been properly raised and

necessarily decided in the state court proceedings.” R. Stern

et al., Supreme Court Practice, sec. 3.1, at p. 90 (7th ed.

1993). The proper method of raising the federal question

is determined by state law. Michel v. Louisiana, 350 U.S.

91, 93 (1955); Amalgamated Food Employees Union v. Logan

Valley Plaza, 391 U.S. 308, 334 (1968) (Harlan, dissenting)

(“It is relevant and usually sufficient to ask whether

petitioners satisfied the state rules governing presenta-

tion of issues”).

When “the highest state court has failed to pass upon

a federal question, it will be assumed that the omission

was due to want of proper presentation in the state

courts, unless the aggrieved party in this Court can affir-

matively show the contrary.” Street v. New York, 394 US.

576, 582 (1969). In accord: R. Stern et al., Supreme Court

Practice, sec. 3.17, at p. 122 (7th ed. 1993) (“The party

invoking the Supreme Court's jurisdiction has the high

burden of showing that the federal question was in fact

properly raised”), and cases cited therein. “If the peti-

tioner or appellant adequately discharges this burden,

and if the federal question was necessary to a determina-

tion of the case and no adequate state ground of decision

is apparent, then and then only can the Supreme Court

take jurisdiction over the case.” Id., at p. 123.

Furthermore, if the state procedural requirements are

not complied with, the Supreme Court will decline to

exercise jurisdiction, regardless of whether or not the

highest state court expressly refused to decide the federal

question because of the procedural failure, or was com-

pletely silent on the federal question (the Court assumes

that the silence is due to the procedural deficiency).

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 309 (1903);

Bailey v. Anderson, 326 U.S. 203, 206-07 (1945). Thus, an

application for rehearing, submitted to the highest state

court, which raises the federal question for the first time,

is generally insufficient to establish jurisdiction in this

Court, unless the state court expressly considered and

decided the question presented on rehearing. Bankers Life

and Casualty Co. v. Crenshaw, 486 U.S. 71, 77-78 (1988);

Prudential Federal Savings and Loan Association v. Flanigan,

478 U.S. 1311, 107 S.Ct. 38, 92 L.Ed.2d 761 (1986); Webb v.

Webb, 451 U.S. 493 (1981); Radio Station WOW v. Johnson,

326 U.S. 120, 128 (1945); Herndon v. Georgia, 295 U.S. 441,

443, 55 S.Ct. 794, 795 (1935).

The Respondents realize, of course, that there are

extremely limited situations in which raising a federal

question for the first time in a petition for rehearing may

be considered timely. But such situations occur only

where the federal question arises from an unexpected deci-

sion of the highest state court, which gave the petitioner

no prior opportunity to assert the particular federal ques-

tion, but instead, was a surprise and could not have been

reasonably anticipated. Herndon v. Georgia, supra;

Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673, 677-78

(1930); R. Stern et al., Supreme Court Practice, sec. 3.1, at p.

129 (7th ed. 1993).

Petitioner has neither asserted that the instant case

fits within the Herndon exception, nor articulated just

how he may have failed to anticipate the Alabama

——— Saw

Supreme Court’s decision. Petitioner merely states that

“the sole basis for [the Supreme Court of Alabama’s]

ruling against Smith . . . was that Smith failed to exhaust

his administrative remedies,” and such a “question of

administrative exhaustion had not been briefed or argued

in any lower tribunal.” Petition at p. 4. Petitioner goes on

to state that he therefore “filed for rehearing” and therein

“asserted that the court’s newly articulated rule violated

the Supremacy Clause . . . and the Fourteenth Amend-

ment,” but that his application was denied without opin-

ion. Petition for Writ of Certiorari, at p. 4.

Even if Petitioner had argued to this Court that he

was justifiably surprised by the Alabama Supreme

Court’s decision, insofar as it applied issue preclusion

based upon the ruling of the employee review panel, as to

which ruling the Petitioner did not seek judicial review

by petitioning for writ of certiorari, such argument would

have been erroneous. Indeed, Petitioner would have

needed to convincingly persuade this Court that, prior to

the Supreme Court of Alabama decision in this case, he

had no reason to anticipate that, in order to not be bound

to an employee review panel ruling, he needed to seek

judicial review of such a ruling by filing, in an Alabama

trial (circuit) court, a petition for writ of certiorari to the

panel, and prevail in such trial court proceeding. How-

ever, even a cursory review of Alabama cases concerning

employee review panel decisions would have easily dis-

closed to Petitioner’s former attorneys that, in order to

successfully present his claims in Alabama’s courts, Peti-

tioner must, consistent with Alabama’s rules of practice,

seek relief from the employee review panel decision by

petition for writ of certiorari.

For example, in Hughes v. Britnell, 554 So. 2d 1041,

1042-43 (Ala. Civ. App. 1989), cert. denied, 596 So. 2d 56

(1989), some four years before Petitioner’s suit, the Ala-

bama Court of Civil Appeals reviewed a circuit court's

grant of summary judgment to a State two-year college

president, in two college employees’ lawsuits subsequent

to employee review panel decisions with which the

employees were dissatisfied. Noting that the employees

had improperly sought relief through a petition for man-

damus, rather than filing a petition for writ of certiorari,

the Court cautioned future litigants as follows:

“This case is before us as an appeal from the

summary dismissal of a writ of mandamus. We

wish to emphasize that . . . the proper vehicle

for review to the circuit court is by a writ of

certiorari. Fields v. State ex rel. Jones, 534 So. 2d

615 (Ala.Civ.Appl. 1987); Ex parte Smith, 394 So.

2d 45 (Ala.Civ.App. 1981). From a decision by

the circuit court on the writ of certiorari, review

to this court would be on an appeal. Fields, 534

So. 2d 615.

For a complete review of the proper pro-

cedure to be followed in these cases, see Fields,

534 So. 2d 615.”

Similarly, in Hardy v. Birmingham Board of Education, 634

So. 2d 574, 576 (Ala.Civ.App. 1994) the Alabama Court of

Civil Appeals reiterated that “the proper vehicle for

review [in] the circuit court [of an employee review panel

decision] is .. . [a] writ of certiorari . . . In cases such as

this, the only available means of review is the common

law writ of certiorari.” Since the employer had not sought

such a remedy, it was, the Court ruled, bound to the

panel decision, and could not just choose to simply

ignore the panel decision in subsequent litigation. Id., at

p- 576. The Court commented that the parties to panel

hearings must follow the rulings of the panel (even though

they believe a panel exceeded its authority) or suc-

cessfully seek review thereof by certiorari, and “For this

court to find otherwise would send a message to boards

of education that they may simply ignore the decisions of

a review panel board.” Id.

Therefore, Petitioner could have easily anticipated

the Supreme Court of Alabama’s Opinion in this case.

Both the employees in Hughes v. Britnell, supra, and the

employer in Hardy v. Birmingham Board of Education, supra,

were told that they would be bound to the applicable

employee review panel decision absent a successful peti-

tion for writ of certiorari therefrom. Thus, even if Peti-

tioner is attempting to fit the instant case within the

Herndon exception, he cannot legitimately do so. Hence,

this Court is without jurisdiction.

Il. THIS COURT LACKS JURISDICTION TO CON-

SIDER PETITIONER’S ARGUMENT, SINCE THE

STATE COURT DECISION RESTS UPON ADE-

QUATE AND INDEPENDENT STATE GROUNDS

It is settled that this Court will not review a State

court decision resting on an adequate and independent

nonfederal ground even though the State court may have

arguably also summoned to its support an erroneous

view of federal law. Paschall v. Christie-Stewart, Inc., 414

U.S. 100, 94 S.Ct. 313, 38 L.Ed. 2d 298 (1973), 46 OGR 198,

reh. denied, 414 U.S. 1138, 94 S.Ct. 884, 38 L.Ed. 2d 763,

conformed to, 53 OGR 210, 544 P.2d 505, cert. denied, 426

U.S. 935, 96 S.Ct. 2648, 49 L.Ed. 2d 386. Jurisdiction is

lacking even “when the question of the existence of an

adequate state ground [supporting the state court judg-

ment] is debatable.” Stembridge v. Georgia, 343 U.S. 541,

547-48 (1952); McKinney v. City of Birmingham, 409 U:S.

895 (1972) (dismissal of appeal due to brief being late is

an adequate state ground); McKinney v. Parsons, 423 U.S.

960, 961 (1975) (Brennan, dissenting); Radio Station WOW

v. Johnson, supra 65 S.Ct. 1475, 1480 (1945). Applying this

principle to the instant case reveals that, in four separate

respects, each of which will be discussed below, this

Court lacks jurisdiction to consider the questions pre-

sented by Petitioner Smith.

A. The Supreme Court Of Alabama Decision Was

Expressly Based Upon A Nonfederal Ground

Petitioner incorrectly characterizes the Alabama

Supreme Court’s decision as being grounded upon reso-

lution of a federal question. However, the Alabama

Supreme Court’s decision was based, instead, upen a

state ground, over which this court lacks jurisdiction. It is

clear that the Supreme Court of Alabama’s decision was

based upon its interpretation and application of Ala-

bama’s own rules of practice, Code of Alabama (1975)

§ 41-22-20(k)(1), and Alabama's rules of collateral estoppel

(issue preclusion); rules developed as a matter of Ala-

bama law. Such rules concern the preclusive effect to be

given to issues decided by an administrative agency,

regardless of whether or not the issue precluded is rele-

vant to a claim for relief arising from state law or federal

law, or both. Put another way, the Supreme Court of

Alabama Opinion with which Petitioner Smith is dissat-

isfied was arrived at through the Court's interpretation of

state law and state rules of practice, and not 42 U.S.C.

§ 1983. “A state procedural rule which forbids the raising

of federal questions at late stages in the case, or by any

other than a prescribed method, has been recognized as a

valid exercise of state power.” Williams v. Georgia, 349

U.S. 375, 382-83 (1955). As such, the Supreme Court of

Alabama decision rests upon an adequate State ground,

independent of any “federal question.”

A state court decision denying relief because of a

litigant’s wrong choice of remedy or forum is an adequate

state ground precluding this Court from reviewing a fed-

eral question. Edelman v. California, 344 U.S. 357, 73 S.Ct.

293, 97 L.Ed. 387 (1953); Hammerstein v. Superior Court of

California, 341 U.S. 491, 71 S.Ct. 820, 95 L.Ed. 1135, reh.

denied, 342 U.S. 843, 72 S.Ct. 21, 96 L.Ed. 637 (1951);

Copperwell Steel Co. v. Industrial Con., 324 U.S. 780, 65 S.Ct.

1006, 89 L.Ed. 1363 (1945). Consequently, this Court is

without jurisdiction. McCoy v. Shaw, 277 U.S. 302, 48 S.Ct.

519, 72 L.Ed. 891 (1928); Central Union Tel. Co. v.

Edwardsville, 269 U.S. 190, 46 S.Ct. 90, 70 L.Ed. 229 (1925);

Mellon Co. v. McCafferty, 239 U.S. 134, 36 S.Ct. 94, 60 L.Ed.

181 (1915); McQuade v. Trenton, 172 U.S. 636, 19 S.Ct. 292,

43 L.Ed. 581 (1899). See also, 24 L.Ed. 2d 837, 849-53.

B. The Supreme Court Of Alabama Is Presumed

To Have Based Its Denial Of Rehearing On A

State Ground

Second, the Petitioner’s failure to raise the alleged

“federal questions” presented in his petition for writ of

certiorari until his application for rehearing to the

Supreme Court of Alabama, combined with the fact that

the Supreme Court denied rehearing without opinion or

other comment, effectively renders the Supreme Court of

Alabama decision to be a judgment based upon an ade-

quate state ground. Radio Station WOW vw. Johnson, supra.

This is because a state court’s denial of rehearing, even

when issued without opinion and without any comment

as to the reasons for the denial, is, unless it can be

affirmatively shown otherwise, assumed by this Court to

have been due to a procedural deficiency. Bailey v. Ander-

son, 326 U.S. 203, 206-07 (1945).

In this regard it is important to note that the } urden

of persuasion rests squarely upon the shoulders of Peti-

tioner Smith to convince this Court that the denial of

rehearing below was caused by reasons exclusive of his

having first presented the purported federal question in

his application for rehearing. Has Petitioner Smith suffi-

ciently discharged this burden? No. Indeed, Petitioner

has made no showing whatsoever in this respect. There-

fore, under the assumption mandated by Bailey v. Ander-

son, supra, since the Supreme Court of Alabama denial of

rehearing is grounded upon the adequate state ground of

procedural deficiency, this Court is without jurisdiction

to review the Alabama Supreme Court’s Opinion.

C. The Trial Court’s Decision Was Also Based

Upon The Limitations Period Lapsing

Moreover, the trial court’s judgment was based upon

yet another adequate state ground, independent of the

alleged “federal” question presented in the Petition. Spec-

ifically, the trial court concluded that Petitioner’s claim

for relief under 42 U.S.C. § 1983 was barred as untimely

under Ala. Code § 6-2-38 (1975). In its Memorandum Opin-

ion, granting summary judgment, the Circuit Court of

Dale County, Alabama opined as follows:

“The claims brought by Plaintiff Smith

under 42 U.S.C. § 1983 are those stated in his

Amendment to Complaint. The Court finds that

the Section 1983 claims made in the Amendment

to Complaint are barred by the applicable two-

year statute of limitations. It is the law in Ala-

bama that a claim brought under Section 1983

must be brought within two years of the occur-

rence upon which the claim is based. Holland v.

Barton, 600 So. 2d 233, Ala. LEXIS 1147 (Ala.

1992); Free v. Granger, 887 F.2d 1552, n.1 (11th

Cir., 1989); Jones v. Preuit & Mauedin, 876 F.2d

1480 (11th Cir. 1989). Inasmuch as the Amend-

ment to Complaint was filed on November 8,

1993 concerning a termination which occurred

on August 31, 1991, the Court finds that the

claims submitted under Section 1983 are barred

by the applicable two-year statute of limitations

period.

“While the Plaintiff might, but did not,

argue that the Section 1983 claims “relate back”

to the State claims made in the original Com-

plaint on August 25, 1993, the Court finds that

there was no relation back between the Federal

Constitutional claims made in the Amendment

to Complaint and the breach of contract and

other claims brought in the original Complaint.

Therefore, Counts IV — VII of the Amendment to

Complaint are dismissed as being not timely

filed.”

C-1802-03.2

2 Federal law dictates when a Section 1983 action accrues.

However, state law, specifically, Rules 15(c) and 9(h), Ala. R. Civ.

P. (see Appendices C & D), controls whether or not a new court,

against new defendants, in an amended complaint, such as the

a erritetiiiiiiil

Thereafter, on appeal to the Court of Civil Appeals, both

the Petitioner and Respondents argued whether or not

this statute of limitations ground for the trial court's

judgment was erroneous. See Appendix H, at H-2. The

Court of Civil Appeals, having concluded that the trial

court was correct in finding Petitioner’s Section 1983

claim to be subject to issue preclusion, found it unnecess-

ary to reach the statute of limitations and other grounds

relied upon by the trial court. The Supreme Court of

Alabama granted review of the Court of Appeals decision

by certiorari. In their brief to the Supreme Court of Ala-

bama, the Respondents repeated their statute of limita-

tions argument. See Appendix G. However, Petitioner did

not, in his briefs to the Supreme Court of Alabama, attack

the trial court’s judgment insofar as it was grounded

upon the statute of limitations bar.

A state court judgment denying relief as being barred

by a state statute of limitations is an adequate state

ground, precluding this Court from reviewing a federal

question. Wood v. Chesborough, 288 U.S. 672, 33 S.Ct. 706,

57 L.Ed. 1018 (1913); Rogers v. Jones, 214 U.S. 196, 29 S.Ct.

635, 53 L.Ed. 965 (1909); Elder v. Wood, 208 U.S. 226, 28

S.Ct. 263, 52 L.Ed. 464 (1908); Seneca Nation v. Christy, 162

U.S. 283, 16 S.Ct. 828, 40 L.Ed. 970 (1896). See also Jeffery

F. Ghent, Noncompliance With State Procedural Rule As

Constituting ‘Adequate State Ground’ For Denial Of Relief So

As To Preclude Supreme Court Review Of Federal Question,

24 L.Ed. 2d 837, 844-45.

Thus, the case at bar fits squarely within this Court's

ruling in Paschall v. Christie-Stewart, Inc., 414 U.S. 100, 94

S.Ct. 313, 38 L.Ed. 2d 298 (1973), 46 OGR 198, reh. denied,

414 US. 1138, 94 S.Ct. 884, 38 L.Ed. 2d 763, conformed to,

53 OGR 210, 544 P.2d 505, cert. denied, 426 U.S. 935, 96

Section 1983 claim, “relates back” to the original complaint (or

whether or not the Alabama two-year statute period is tolled.)

Board of Regents v. Tomanio, 446 U.S. 478 (1980); Ortiz v. City of

Imperial, 884 F.2d 1312 (9th Cir. 1989); Herman v. City of Chicago,

870 F.2d 400, 403 (7th Cir. 1989).

S.Ct. 2648, 49 L.Ed. 2d 386. Therein this Court correctly

noted that the trial court’s judgment may have been

based, not only upon resolution of a federal question, but

also upon a state statute of limitations bar. Id, at 101-02.

This Court also noted that the petitioner therein may

have waived his right to challenge the correctness of the

trial court’s ruling concerning the statute of limitations,

by not attacking such ruling as part of his appeal before

the state’s appellate courts. Id, at p. 101-02. Accordingly,

this Court refused to render an advisory opinion on the

federal question presented, since the trial court’s judg-

ment could have been based on an adequate, independent

state ground. On further proceedings in the Oklahoma

appellate court, this Court’s lack of jurisdiction was con-

firmed. 544 P.2d 505.

Likewise, in the in tant case, the trial court found

Petitioner’s claim under 42 U.S.C. § 1983 to be untimely

under Alabama’s applicable two-year statute of limita-

tions. Such finding is an adequate state ground, not

dependent upon resolution of the purported “federal”

questions presented by Petitioner to this Court. Also,

Petitioner’s failure to renew, before the Supreme Court of

Alabama, his challenge to the trial court’s statute of lim-

itations ground for entry of summary judgment, consti-

tutes another state ground for the judgment below.

Therefore, Respondents respectfully submit that this

Court lacks jurisdiction to consider the Petition herein.%

3 In their answers to the complaint and amended

complaint, the Respondents also raised the defense of laches.

C-056; C-1769. Although the trial court and Alabama’s appellate

courts found it unnecessary to reach the laches issue (C-1797),

laches provides yet another potential adequate state ground for

the trial court’s judgment. In Hughes v. Britnell, 554 So. 2d 1041,

1042 (Ala.Civ.App. 1989), cert. denied, 596 So. 2d 56 (1989), the

Alabama Court of Civil Appeals held that an employee’s suit

was barred by the doctrine of laches, because the employee

waited 18 months after an employee review panel’s decision to

file suit.

——————

D. The Trial Court’s Decision Was Also Justified

By Petitioner’s Failure To Timely Oppose

Respondents’ Motions For Summary Judgment

Even if this Court were, on the basis of the so-called

“federal” questions presented, to vacate or reverse the

Supreme Court of Alabama decision, thereafter Ala-

bama’s appellate courts would review other adequate

state grounds supporting the trial court’s entry of sum-

mary judgment, grounds the consideration of which were

pretermitted by the Alabama Court of Civil Appeals. One

of such grounds is that, under Rule 56(c) of the Alabama

Rules of Civil Procedure (Ala. R. Civ. P.), the trial court’s

entry of summary judgment was justified, since the Peti-

tioner failed to timely file substantial admissible evidence

opposing the Respondents’ motions for summary judg-

ment. In other words, there presently exists an adequate

state ground (Petitioner’s failure to timely oppose the

summary judgment motions), independent of the alleged

“federal” question presented to this Court, upon which

the trial court based its decision, and which Alabama’s

appellate courts have so far found it unnecessary to

review, but, if necessary, would almost certainly affirm.

Therefore, this Court should not devote its valuable

resources to reviewing the question presented by Peti-

tioner.

In Alabama’s courts, it is axiomatic that if there are

any grounds which support the result of the trial court

judgment, then that judgment will be affirmed by Ala-

bama’s appellate courts, even if the trial court based its

decision on different, erroneous grounds. Bank of South-

east v. Keslin, 380 So. 2d 826, 830 (Ala. 1980); City of

Birmingham v. Community Fire District, 336 So. 2d 502 (Ala.

1976); Boyd v. Brabham, 414 So. 2d 931, 933 (Ala. 1982) (“if

the trial court reaches the correct result, it is immaterial

that the wrong reason may have been given”); McMillan,

Ltd. v. Warrior Drilling and Engineering Co., Inc., 512 So. 2d

14, 25-26 (Ala. 1986) (on rehearing).

As noted above, pursuant to Rule 56, Ala. R. Civ. P.

(set forth as Appendix B to this brief), the Respondents

filed motions for summary judgment. C-111-12; C-179.

These motions were supported by affidavits, College

records, medical records, and other evidence, demon-

strating that Petitioner’s employment was terminated

only due to Petitioner’s misconduct, and not for any

other reason. C-113-900; C-1722-25.

Although Petitioner Smith, as the non-moving party,

was not strictly required per se to respond to the Respon-

dents’ motions for summary judgment, Alabama’s appel-

late courts have frequently reminded litigants that a

failure to respond may be perilous. See, for example,

Harold Brown Bldrs., Inc. v. Jordan Co., 401 So. 2d 36 (Ala.

1981). The party opposing summary judgment must file

substantial evidence before the date when the motion is

heard. Guess v. Snyder, 378 So. 2d 691 (Ala. 1979); Stallings

v. Angelica Uniform Co., 388 So. 2d 942 (Ala. 1980). This is

because, a summary judgment is proper when “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a

matter of law.” Smith v. Alabama Aviation & Technical

College, 683 So. 2d 426, 432 (Ala.Civ.App. 1995), affirmed,

683 So. 2d 431 (Ala. 1996), quoting Rule 56(c)(3), Ala. R.

Civ. P. As the Alabama Court of Civil Appeals observed,

“When a party opposing a motion for summary judgment

offers no substantial evidence to contradict that pre-

sented by the movant, the trial court must consider the

movant’s evidence uncontroverted.” Id., at 432, citing

Shows v. Gonnell Trucking Co., 631 So. 2d 1010 (Ala. 1994).

See Petition, at p. B-7.

In such a case, Alabama’s appellate courts are also

constrained to the facts as they existed, and were not in

dispute, as of the date the trial court considered the

summary judgment motion. Chatham v. CSX Transporta-

tion, Inc., 613 So. 2d 341 (Ala. 1993); Southern Guaranty

Ins. Co. v. First Alabama Bank, 540 So. 2d 732 (Ala. 1989)

——

(appellate court reviewing summary judgment uses the

same standard employed by the trial court); Hughes v.

Britnell, 554 So. 2d 1041, 1042 (Ala.Civ.App. 1989), cert.

denied, 596 So. 2d 56 (1989) (“on appeal from a grant of

summary judgment, this court cannot consider facts not

before the circuit court”), citing Purves v. PPG Industries,

Inc., 502 So. 2d 714 (Ala. 1987).

In this case, despite more than one continuance of the

hearing on the Respondents’ summary judgment

motions, Petitioner did not timely oppose summary judg-

ment at all. As the Court of Civil Appeals correctly

opined, “Smith failed to offer evidence to contradict the

factual evidence presented by the defendants. Therefore,

our review is limited to the evidence presented by the

defendants to determine whether the defendants were

entitled to a judgment as a matter of law.” See Petition, at

pp. B-7-8.

Quite obviously, then, as of the date that the trial

court entered summary judgment in favor of the Respon-

dents, Petitioner had failed to file any evidence, much

less substantial evidence, tending to prove that he had

been fired because he made comments criticizing College

officials or policies, in violation of his right to free speech.

Thus, on this basis (Petitioner’s failure to at least create a

dispute of fact material to his Section 1983 free speech

claim), the trial court’s summary judgment was correct,

regardless of whether or not Petitioner’s Section 1983

claim was barred by Alabama’s rules of issue preclusion.

Therefore, under the principles discussed above, the trial

court’s judgment was proper, and appropriately affirmed

by Alabama’s appellate courts.4 As such, the judgment

*# Moreover, Alabama’s rules of practice are such that issues

not properly argued in brief on appeal are waived. Rule 28(a)(5),

Alabama Rules of Appellate Procedure, requires an appellant to

include in his brief an argument which “shall contain the

contentions of the appellant with respect to the issues

presented, and the reasons therefor, with citations to the

was justified by an adequate state ground, independent

of the “federal” question presented in the Petition. Hence,

this case is not now properly within this Court’s jurisdic-

tion. Paschall v. Christie-Stewart, Inc., supra.

III. ALABAMA’S APPLICATION OF ITS RULES OF

PRACTICE AND ISSUE PRECLUSION TO PETI-

TIONER’S SECTION 1983 CLAIM WAS A VALID

EXERCISE OF STATE AUTHORITY

Even if this Court were to conclude that it possessed

jurisdiction to consider the questions presented in the

Petition, the Argument presented by Petitioner misstates

or misconstrues what occurred in Alabama’s courts. The

argument and “questions presented” to this Court by

Petitioner, at best, reveal a fundamental misunderstand-

ing of what constitutes “exhaustion of administrative

remedies,” and worse, assail the Supreme Court of Ala-

bama for rendering a decision never in fact made.

Petitioner’s first “question presented” is, “May a

state court . . . require litigants to exhaust inadequate

administrative remedies as a condition precedent to filing

a § 1983 claim?” Petition, at p. i. Apparently, by stating

the question in such a manner, Petitioner would have this

Court believe that the Supreme Court of Alabama, in its

decision, answered the question “yes.” Most any reason-

ably competent practitioner in constitutional law would

know that a Section 1983 litigant would rarely, if ever, be

required to avail himself of administrative remedies as a

authorities, statutes and parts of the record relied upon.” Rule

28(a)(5), A.R.A.P. Bland v. State, 277 Ala. 4, 166 So. 2d 735 (Ala.

1964). Petitioner’s brief to the Alabama Court of Civil Appeals

contained only brief mention (some six sentences), about the

facts before the trial court, and made no argument in response

to the Respondents’ extended discussion, in brief (see Appendix

H), that summary judgment was proper given Petitioner’s

failure to timely oppose summary judgment. Nor did the

Petitioner even address this Rule 56 defense in his Brief to the

Supreme Court of Alabama.

condition precedent to filing a Section 1983 claim in federal

or state courts, and the Supreme Court of Alabama did

not, in the decision below, hold otherwise. In the opening

paragraph of his Argument, Petitioner states that, “The

exhaustion requirement enunciated by the Alabama

Supreme Court stands irretrievably inconsistent with the

explicit disposition of the exhaustion issue in Patsy v.

Board of Regents, 457 U.S. 496 (1982) . . . [which held] that

§ 1983 litigants are guaranteed immediate access to judi-

cial forums without having to exhaust administrative

remedies.” Petition, at p. 5. That statement brutally mis-

represents what the Supreme Court of Alabama, in fact,

held. Petitioner continues on thereafter to further falsely

describe the Alabama Supreme Court’s decision, by

asserting that the Alabama Supreme Court forced him,

“as a precondition to suit,” to “exhaust” the “administra-

tive procedure” by which a State two-year college

employee may appeal his termination from nonproba-

tionary employment to a three-person “employee review

panel.” The Supreme Court of Alabama required no such

thing.

Rather, the Opinion of the Supreme Court of Ala-

bama, when read within the context of the circumstances

of the instant case, can only be reasonably construed to

mean the following: (1) As a tenured State two-year col-

lege employee who had been fired, Petitioner could have

exercised his own discretion as to whether or not to appeal

the termination of his employment to an employee review

panel. (2) Although not required to do so, if Petitioner

chose to make such an appeal, then (and only then) he

was bound by the “final and binding” decision of the

employee review panel, unless he properly sought review

of the panel decision in Alabama courts, consistent with

Alabama’s own rules of practice. (3) The only proper

method for Petitioner to obtain state judicial review of the

panel decision was by filing, in circuit court, a petition

for writ of certiorari to the panel and its decision. Petition,

at pp. A-6, A-9. (4) Had Petitioner, as part of his suit,

appealed the review panel decision by petitioning for a

writ of certiorari, and included, as an additional count in

his complaint, a claim for relief under 42 U.S.C. § 1983,

then he could, if successful, have obtained all of the relief

sought. Petition, at p. A-9. (5) Petitioner failed, in his

complaint, to seek review of the review panel’s decision.

Petition, at p. A-9. (6) In considering claims for relief,

whether or not grounded in whole or in part on Alabama

or federal law, Alabama’s courts properly may, and will,

apply Alabama’s rules of issue preclusion. Petition, at p.

A-3. This includes applying the “elements for issue pre-

clusion applicable to administrative hearings, as

announced by [the Supreme Court of Alabama] in Ex

parte Shelby Medical Center, Inc., 564 So. 2d 63 (Ala. 1990).”

Petition, at p. A-3. (7) Even though federal courts use the

federal common law doctrine of collateral estoppel

(which does not give preclusive effect to unreviewed

agency decisions) in considering Section 1983 claims

brought in federal court, Section 1983 claims brought in

Alabama‘s courts are properly subject to Alabama’s rules

of issue preclusion, just like any other claim brought in

Alabama’s courts. Williams v. Georgia, 349 U.S. 375, 382-83

(1955). (8) The employee review panel’s decision provides

all of the elements necessary, under Alabama law, for

application of issue preclusion to Petitioner’s claims. Peti-

tion, at pp. A-3, A-9, B-8-10. (9) Petitioner could have

easily avoided such issue preclusion, by successfully peti-

tioning for a writ of certiorari (or, of course, by not

appealing his termination from employment to an

employee review panel, or possibly by bringing his Sec-

tion 1983 claim in Federal court). However, since he did

not, Petitioner, by his own actions, effectively “waived”

the ability to avoid issue preclusion and relitigate the

relevant issues, including his contention, made during

the employee review panel hearing, that he was improp-

erly fired for making remarks critical of education offi-

cials or policies (a contention which, if persuasive, would

have mandated that the panel reverse the firing as having

been impermissibly “arbitrarily unjust or for political or

personal reasons” — see Petition, at p. B-11). Petition, at

pp. A-6, A-8, A-9, A-10.

With respect to issue preclusion, the Supreme Court

of Alabama was imminently correct. A Section 1983 liti-

gant does not have to pursue administrative remedies.

Here, Petitioner was not required to avail himself of the

opportunity to challenge his termination before the

administrative body known as the “employee review

panel.” However, it is well established that a state court,

in considering a Section 1983 claim, may apply its own

rules of collateral estoppel and its own rules of practice.

Williams v. Georgia, supra. This includes application of

issue preclusion principles to the decisions of administra-

tive bodies, so long as the rules of the particular state

allow therefor. Consequently, Alabama court’s have not

erected an unconstitutional barrier to Section 1983 liti-

gants obtaining full relief. Rather, Alabama’s court’s have

simply enforced the state’s own, perfectly valid, rules of

practice. Thus, the predicament within which Petitioner

now finds himself, is not a product of state court deci-

sions violative of the Supremacy Clause, but instead, a

direct product of Petitioner’s own failure, through one of

his five former attorneys, to follow Alabama’s rules of

practice.

Furthermore, Petitioner’s argument in brief that he

unfairly suffered summary judgment because the

Supreme Court of Alabama denied him access to Ala-

bama’s courts until after he first exhausted administrative

remedies (see Petition, at pp. i, 5, 11-12), if not deceptive,

discloses a fundamental misunderstanding or misuse of

the term “exhaustion of administrative remedies,” at least

to the extent such term is relevant to Section 1983 litiga-

tion. At pages 6-10 of the Petition, Petitioner presents a

long list of cases, apparently to substantiate the state-

ment, at page 5 of the Petition, to the effect that Section

1983 litigants “are guaranteed immediate access to judi-

cial forums without having to exhaust administrative

remedies.”

The problem with Petitioner’s statement is, first and

foremost, that the stated principle refers only to the

exhaustion of administrative remedies, and not to the

availability or use of judicial remedies. Put another way,

the principle refers to whether or not a litigant is required

to avail himself of all administrative remedies available to

him before he is able to obtain relief in a judicial forum.

Thus, it has been stated that “Exhaustion of remedies is

broadly stated as the withholding of judicial relief on a

claim or dispute cognizable by an administrative bocy

until the administrative process has run its course” Gott-

schalk v. Hegg, 89 S.D. 89, 92, 228 N.W.2d 640, 642 (1975),

citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58

S.Ct. 459, 82 L.Ed. 638 (1939). The doctrine does not in

any manner include state rules of practice concerning the

method or means by which a person may seek judicial

relief in a state court. A state may, for example, as Alabama

has done, lay down a rule of practice that persons desir-

ing to obtain judicial review of an employee review panel

decision must do so by means of a petition for a writ of

certiorari, rather than a petition for a writ of mandamus.

Hughes v. Britnell, supra.

Put another way, the doctrine of exhaustion of

administrative remedies obviously relates only to one’s

having “used up,” so to speak, the administrative

remedies available, as distinguished from the method by

which a person thereafter seeks judicial relief in Ala-

bama’s courts. Here, Petitioner exhausted the administra-

tive remedy, which was the appeal to the employee

review panel. Indeed, the administrative remedy was

exhausted when the review panel issued its decision.

Since Alabama’s courts did not enter or affirm summary

judgment on the basis of any actual or alleged non-

exhaustion of administrative remedies, Petitioner’s Argu-

ment is devoid of merit, and the Petition should be

denied.

Respondents respectfully request the Court to also

note that the Petitioner’s Argument contains a number of

misstatements of caselaw. Respondents shall not address

herein each of those misstatements, but shall discuss

below the more significant of them.

For example, Petitioner erroneously asserts that,

under the decisions below, he could not have been

awarded attorneys fees and expenses, to which he was

entitled under 42 U.S.C. § 1988, because the Fair Dis-

missal Act limited the relief available to a sharing of

expenses between the employer and employee. See Peti-

tion, at pp. 11-12. However, the Supreme Court of Ala-

bama does not purport to restrict the relief which would

have been available to Petitioner. Nor does the Fair Dis-

missal Act (at § 36-26-106 of the Alabama Code), which

authorizes sharing of the three employee review panel

members’ expenses, purport to limit the relief which may

later be available to a prevailing Section 1983 claimant

under 42 U.S.C. § 1988.

Petitioner further asserts that, under Ex parte Averyt,

487 So. 2d 912 (Ala. 1986), the circuit court “did not have

authority to decide the constitutional issues implicated.”

Petition, at p. 13. Petitioner’s absurd contention in this

regard is explicitly contradicted by the Supreme Court of

Alabama decision below. See Petition, at pp. A-9 (“the

circuit court could have adequately determined the con-

stitutional issues raised by [Petitioner]”); A-10.

Furthermore, it should be noted that Petitioner’s

assertion in this regard, and the argument at pages 12-14

of the Petition, is based upon Petitioner’s own misin-

terpretation of Averyt, supra, which the Alabama Court of

Civil Appeals correctly distinguished from the instant

case. See Petition, at p. B-11. Although the Petitioner now

attempts to construct a conflict between the decision

below and Averyt (an alleged conflict of State law, with

which this Court is not concerned), and build thereon a

contention that the Supreme Court of Alabama has “ret-

roactively” imposed “a fatal exhaustion requirement,”

Petitioner conveniently neglects to inform this Court that

he never once mentioned, in his principle brief to the

Supreme Court of Alabama, the holding in Averyt, even

though he argued Averyt to the Alabama Court of Civil

Appeals. Consequently, the Supreme Court of Alabama

was not called upon to consider the matter of which

Petitioner now complains, and thus, cannot belatedly be

put in error regarding such. Moreover, the supposed con-

flict between the decision below and Averyt, which Peti-

tioner imagines to exist, and the supposed surprise and

“Catch-22” of which Petitioner now complains, are, in

reality, not the product of a conflict between judicial

decisions, but actually the result of Petitioner’s own fail-

ure to properly seek relief in Alabama’s courts consistent

with Alabama’s rules of practice, as outlined some four

years before Petitioner’s suit, in Hughes v. Britnell, 534 So.

2d 1041, 1042-43 (Ala. Civ. App. 1989), cert. denied, 596 So.

2d 56 (1989). See Part I herein.

Also, Petitioner is hardly in a position to complain (at

pp. 2 and 13 of the Petition) about the panel, which

reviewed his termination and free speech assertions,

being composed of non-lawyers, because Petitioner himself

unilaterally and voluntarily selected a person to be a

member of the panel who was not an actorney. Under the

Procedure, Petitioner was free to choose virtually anyone.

He could have chosen an attorney, or even a constiiu-

tional law professor. He chose not to. In other words,

Petitioner’s argument that he could only have received a

fair hearing from a panel of lawyers, is betrayed by his

own conduct in choosing a panel member without legal

training.

IV. THE ISSUES PRESENTED BY PETITIONER TO

THIS COURT DO NOT WARRANT THIS

COURT’S ATTENTION, SINCE THEY RELATE

ONLY THE TO PETITIONER AND WHATEVER

FEW OTHER LITIGANTS WHOSE COUNSEL

MIGHT CHOOSE TO IGNORE ALABAMA’S

RULES OF PRACTICE FOR SEEKING JUDICIAL

REVIEW OF AGENCY DECISIONS

As discussed elsewhere in this Opposition, the so-

called “Catch-22” procedural predicament in which the

Petitioner supposedly finds himself was not caused by

Alabama's enforcement of its rules of practice (by which

judicial review of agency decisions is to be obtained

through means of a circuit court petition for writ of

certiorari directed to the agency), but rather, by Peti-

tioner’s own failure, through one of his several former

attorneys, to avail himself of the procedural mechanism

through which Petitioner could have sought review of the

employee review panel’s decision and fully litigated his

alleged claim under 42 U.S.C. § 1983. Put another way,

although Alabama’s courts held Petitioner’s Section 1983

claim to be subject to issue preclusion (collateral estop-

pel), and Petitioner now attempts to erroneously mis-

characterize the results of his failure to pursue available

judicial review as an “exhaustion of administrative

remedies” requirement, Petitioner would have been able

to fully litigate, in Alabama’s courts, his Section 1983

claim if he had merely filed, in the trial court, a petition

for writ of certiorari. Thus, in reality, this case does not

even present a substantial federal question, but instead,

demonstrates a simple failure of a plaintiff to follow a

State rule of judicial procedure.

Consequently, the “questions presented” by Peti-

tioner are questions improbable of significantly affecting

the course of civil rights litigation in this nation. Rather,

only the Petitioner will be affected. “The [Supreme] Court

fof the United States] will seldom ‘grant certiorari to

correct individual! injustices.’” R. Stern et al., Supreme

Court Practice, sec. 6.30, at p. 353 (7th ed. 1993), quoting S.

Baker, A Practical Guide to Certiorari, 33 Cath. U.L. Rev.

611, 615 (1984). Therefore, the petition for writ of cer-

tiorari should not be granted.

CONCLUSION

For all of the reasons discussed above, the petition

for writ of certiorari should be denied.

Respectfully submitted,

Jerrery A. FOsHEE

Counsel of Record for Respondents

EDWARD M. GEORGE

FosHEE & GeorceE, L.L.C.

900 South Perry Street, Suite B

Montgomery, Alabama 36104

(334) 265-1960

TABLE OF APPENDICES

EN IIIT EET EEE EERE EEE A-1

28 U.S.C. § 1257(a)

NUMER EGC ess ee sess ccssccreeeeseee cess B-1

Rule 56, Ala. R. Civ. P. (Alabama Rules of Civil

Procedure)

RAE OEE EEE C-1

Rule 15(c), Ala. R. Civ. P.

Seely os cs oss cess sce es seseess D-1

Rule 9(h), Ala. R. Civ. P.

eee E-1

Rule l(c), Ala. R. Civ. P.

ree F-1

Rule 28(a)(5), A.R.A.P. (Alabama Rules of

Appellate Procedure)

eee EEE Gabe Sse reee esse. G-1

Excerpts of Brief [to the Supreme Court of Ala-

bama] of Defendants-Respondents Shirley

Woodie, Fred Gainous, and John Fergus (pages

i-iii, 51-53)

EGE a Danas ese cssccsccesccsce. H-1

Excerpts of Brief [to the Alabama Court of Civil

Appeals] of Defendants-Respondents Alabama

Aviation And Technical College, Shirley Woodie,

Fred Gainous, and John Fergus (pages i-ii, 19-25)

GEESE Ska cesse ec cc cece sees I-1

Ala. Code § 6-2-38 (1975)

A-1

APPENDIX A

* + *

§ 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of cer-

tiorari where the validity of a treaty or statute of the

United States is drawn in question or where the validity

of a statute of any State is drawn in question on the

ground of its being repugnant to the Constitution,

treaties, or laws of the United States, or where any title,

right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or statutes

of, or any commission held or authority exercised under,

the United States.

(b) For the purposes of this section, the term “high-

est court of a State” includes the District of Columbia

Court of Appeals.

B-1

APPENDIX B

* * »

RULE 56. SUMMARY JUDGMENT

(a) For Claimant. A party seeking to recover upon

a claim, counterclaim, or cross-claim or to obtain a declar-

atory judgment may, at any time after the expiration of

thirty (30) days from the commencement of the action or

after service of a motion for summary judgment by the

adverse party, move with or without supporting affi-

davits for a summary judgment in the party’s favor upon

all or any part thereof.

(b) For Defending Party. A party against whom a

claim, counterclaim, or cross-claim is asserted or a declar-

atory judgment is sought may, at any time, move with or

without supporting affidavits for a summary judgment in

the party’s favor as to all or any part thereof.

(1) Form of Motion and Statement in Opposition

Thereto. The motion shall be supported by a narrative

summary of what the movant contends to be the undis-

puted material facts; that narrative summary may be set

forth in the motion or may be attached as an exhibit. The

narrative summary shall be supported by specific refer-

ences to pleadings, portions of discovery materials, or

affidavits and may include citations to legal authority.

Any supporting documents that are not on file shall be

attached as exhibits. If the opposing party contends that

material facts are in dispute, that party shail file and

serve a statement in opposition supported in the same

B-2

manner as is provided herein for a summary of undis-

puted material facts. ee

(2) Time. The motion for summary judgment, with

all supporting materials, including any briefs, shall be

served at least ten (10) days before the time fixed for the

hearing, except that a court may conduct a hearing on

less than ten (10) days’ notice with the consent of the

parties concerned. Subject to subparagraph (f) of this

rule, any statement or affidavit in opposition shall be

served at least two (2) days prior to the hearing.

(3) Judgment. The judgment sought shall be ren-

dere forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

a judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the issue

of liability alone although there is a genuine issue as to

the amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on

motion under this rule judgment is not rendered upon the

whole case or for all the relief asked and a trial is neces-

sary, the court at the hearing of the motion, by examining

the pleadings and the evidence before it and by inter-

rogating counsel, shall if practicable ascertain what mate-

rial facts exist without substantial controversy and what

material facts are actually and in good faith controverted.

It shall thereupon make an order specifying the facts that

appear without substantial controversy, including the

extent to which the amount of damages or other relief is

B-3

not in controversy, and directing such further proceed-

ings in the action as are just. Upon the trial of the action

the facts so specified shall be deemed established, and the

trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirma-

tively that the affiant is competent to testify to the mat-

ters stated therein. Sworn or certified copies of all papers

or parts thereof referred to in an affidavit shall be

attached thereto or served therewith. The court may per-

mit affidavits to be supplemented or opposed by deposi-

tions, answers to interrogatories, or further affidavits.

When a motion for summary judgment is made and sup-

ported as provided in this rule, an adverse party may not

rest upon the mere allegations or denials of the adverse

party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set

forth specific facts showing that there is a genuine issue

for trial. If the adverse party does not so respond, sum-

mary judgment, if appropriate, shall be entered against

him.

(f) When Evidentiary Matter Is Unavail-

able. Should it appear from the affidavits of a party

opposing the motion that the party cannot, for reasons

stated, present by affidavit facts essential to justify the

party’s opposition, the court may deny the motion for

summary judgment or may order a continuance to permit

affidavits to be obtained or depositions to be taken or

discovery to be had or may make such other order as is

just.

B-4

(g) Affidavits Made in Bad Faith. Should it

appear to the satisfaction of the court at any time that any

of the affidavits presented pursuant to this rule are pre-

sented in bad faith or solely for the purpose of delay, the

court shall forthwith order the party employing them to

pay to the other party the amount of the reasonable

expenses which the filing of the affidavits caused him to

incur, including reasonable attorney’s fees, and any

offending party or attorney may be adjudged guilty of

contempt.

(dc) District Court Rule. Rule 56 applies in the

district courts except that the references to thirty (30)

days and ten (10) days are reduced to fourteen (14) days

and seven (7) days, respectively.

* * *

C-1

APPENDIX C

* * *

RULE 15. AMENDED AND

SUPPLEMENTAL PLEADINGS

* * *

a pleading relates back to the date of the original plead-

ing when

(1) relation back is permitted by the law that pro-

vides the statute of limitations applicable to the action, or

(2) the claim or defense asserted in the amended

pleading arose out of the conduct, transaction, or occur-

rence set forth or attempted to be set forth in the original

pleading, except as may be otherwise provided in Rule

13(c) for counterclaims maturing or acquired after plead-

ing, or

(3) the amendment, other than one naming a party

under the party’s true name after having been initially

sued under a fictitious name, changes the party or the

naming of the party against whom a claim is asserted if

the foregoing provision (2) is satisfied and, within the

applicable period of limitations or one hundred twenty

(120) days of the commencement of the action, whichever

comes later, the party to be brought in by amendment (A)

has received such notice of the institution of the action

that the party will not be prejudiced in maintaining a

defense on the merits, and (B) knew or should have

known that, but for a mistake concerning the identity of

the proper party, the action would have been brought

against the party, or

C-2

(4) relation back is permitted by principles applica-

ble to fictitious party practice pursuant to Rule 9(h).

+ * *

D-1

APPENDIX D

. * 4

RULE 9. PLEADING SPECIAL MATTERS

* * *

(h) Fictitious Parties. When a party is ignorant of

the name of an opposing party and so alleges in the

party’s pleading, the opposing party may be designated

by any name, and when that party’s true name is discov-

ered, the process and all pleadings and proceedings in

the action may be amended by substituting the true

name.

E-1

APPENDIX E

RULE 1. SCOPE OF RULES

and administered to secure the just, speedy and inexpen-

sive determination of every action.

* * *

F-1

APPENDIX F

» * *

RULE 28. BRIEFS

(a) Brief of the Appellant. The brief of the appel-

lant shall contain under appropriate headings and in the

order here indicated:

(1) A table of contents, with page references, and a

table of cases (alphabetically arranged), statutes and

other authorities cited, with references to the pages of the

brief where they are cited;

(2) A statement of the case (The statement shall first

indicate briefly the nature of the case, the course of

proceedings and its disposition in the court below);

(3) A statement of the issues presented for review;

(4) A full statement of facts relevant to the issues

presented for review, with appropriate references to the

record (see subdivision (e));

(5) An argument (The argument may be preceded

by a summary. The argument shall contain the conten-

tions of the appellant with respect to the issues pre-

sented, and the reasons therefor, with citations to the

authorities, statutes and parts of the record relied on);

and,

(6) A short conclusion stating the precise relief

sought.

(7) A brief on appeal to the Court of Criminal

Appeals should also contain a list of each and every

ruling by the trial court adverse to the defendant on

F-2

whose behalf the appeal is taken. Such list need only refer

to the pages of the record on appeal where such rulings

occur. See Form 23.

G-1

APPENDIX G

IN THE SUPREME COURT OF ALABAMA

Appeal No. 1941820

ALTON WAYNE SMITH,

Plaintiff - Petitioner,

Vv.

ALABAMA AVIATION AND

TECHNICAL COLLEGE, et al.,

Defendants - Respondents.

CIRCUIT COURT OF DALE COUNTY

BRIEF OF DEFENDANTS - RESPONDENTS

SHIRLEY WOODIE, FRED GAINOUS,

AND JOHN FERGUS

Jeffery A. Foshee

Edward M. George

Foshee & George, L.L.C.

900 South Perry Street

Suite B

Montgomery, Alabama 36104

(334) 265-1960

ORAL ARGUMENT REQUESTED

G-2

TABLE OF CONTENTS

Page

ee i

TABLE OF AUTHORITIES.................... iv

STATEMENT REGARDING ORAL ARGUMENT _ ix

I. STATEMENT OF THE CASE................ 1

Pe een. 1

B. Course Of Proceedings And Disposition

EE Ee 4

1. The Circuit Court Proceedings ....... a

a. The Original Complaint.......... +

b. The Amended Complaint......... 7

c. The Entry of Summary Judgment.. 9

d. The Motion to Alter or Amend

EEE ee 11

2. The Alabama Court of Civil Appeals

EE EEE 11

Il. STATEMENT OF THE ISSUES.............. 14

Ill. STATEMENT OF THE FACTS.............. 15

A. Why Mr. Smith’s Employment Was Termi-

cee ce eee... 15

B. The Administrative Procedure And Deci-

EE Te 19

IV. SUMMARY OF ARGUMENT................ 25

G-3

A. Mr. Smith’s Claims Are Precluded By The

Administrative Review Process ..........

Alabama Rules Of Preclusion Apply

To Mr. Smith’s Section 1983 Claims ..

All Five Elements For Collateral Estop-

pel To Apply Are Present In The

| ey are

a. Identity Of Parties Or Their Privies

eee eee eee eee eee eee eee eee eh hh hh hh Hh

D. SE Ge Bs i ds eden dices

c. Adequate Opportunity To Litigate

er tr erry Tete ee

d. Issues Actually Litigated.........

e. Finding On The Issues Necessary ..

Summary Judgment Was Proper Given Mr.

Smith’s Failure To Timely File Substantial

Evidence Creating A Controiling Dispute

Of Material Fact, As Required By Rule 56,

Mitta 6s 4 ivescnsadewa venetian siaee hens

Mr. Smith’s Claims Are Barred By The

eniee CE. LAGI «<< cdc e sihins become

The Amended Complaint Was

cs otc nwa nel eteeata kere etey ies

Mr. Smith’s Untimely Claims Do Not

"OUR ES hp cadens ca dwek nates cs

a. Which Rule 15(c) Governs Here ..

b. Application Of Federal Rule 15(c)

To The Section 1983 Claims

Against Defendants ..............

G-4

c. Application Of Alabama Rule 15(c)

To The Section 1983 Claims

Against Defendants .............. 61

d. Application Of The Rules to

Defendants Gainous and Fergus

SP ee eT ee ee 61

D. Mr. Smith Failed To State, And Support By

Substantial Evidence, Section 1983 Claims.. 63

1. The Defendants Were Not Alleged

To Have Acted Under Color Of State

PETS Sy Fen ay pee tap Pre ae 63

2. The Amended Complaint Failed To

Allege Unequal Treatment Of Persons In

TT ee TTC ET Tee 64

3. The Amended Complaint Failed To

Allege That The Defendants Acted With

The Requisite State Of Mind .......... 66

E. Additional Reasons Support The Entry Of

Summary Judgment In Favor Of Defendants

Fred Gainous And John Fergus............ 67

1. Chancellor Gainous Was Not Alleged Or

Demonstrated To Have Engaged In Any

Illegal Act, or Failure To Act, Proximately

Causing Damage To Mr. Smith......... 67

2. Dean Fergus Was Not Alleged Or Dem-

onstrated To Have Engaged In Wrongful

RI oo ce yea ca oes es 4k as OLAS 70

es ite ois a eA ss oon oka 71

pe Pee er er oe 72

CERTIFICATE OF SERVICE.................... 73

* * *

G-5

C. MR. SMITH’S CLAIMS ARE BARRED

BY THE STATUTE OF LIMITATIONS

Another alternative ground for this Court to affirm

the judgment below is that Mr. Smith’s Section 1983

claims were untimely, and barred by the applicable stat-

ute of limitations. In other words, even if Mr. Smith’s

claims under 42 U.S.C. § 1983 were not subject to collat-

eral estoppel, they were nevertheless untimely, and there-

fore properly disposed of through summary judgment.

1. The Amended Complaint Was Untimely

Although the original Complaint was filed on August

25, 1993, the “Amendment to Complaint” was not filed

until November 8, 1993.

The applicable statute of limitations period is two

years. Holland v. Barton, Ala. Lexis 1147 (Ala. 1992); Free v.

Granger, 887 F.2d 1552, n. 1 (11th Cir. 1989); Jones v. Preuit

& Mauldin, 876 F.2d 1480 (11th Cir. 1989) (applying the

then-applicable, and since-repealed, one year limitations

period).

Federal law, rather than Alabama law, dictates when

a Section 1983 action accrues. Such law establishes that an

action growing out of an employment termination

accrues on the date of the employer’s action causing the

termination (rather than any subsequent date on which

the employment ceased). Delaware State College v. Ricks,

449 U.S. 250 (1980) (civil rights action by a tenured col-

lege professor denied tenure accrued when the employer

gave notice to the professor of its decision); Chardon v.

Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1980);

G-6

DeLeon v. Rubero, 820 F.2d 18 (1st Cir. 1987); Conde v.

Beltran Pena, 793 F.Supp. 33 (D. Puerto Rico 1992).

Applying the above principles to the instant case, on

August 28, 1991 Mr. Smith was notified that his employ-

ment was terminated. Consequently, any Section 1983

cause of action which Mr. Smith might have had concern-

ing his termination from employment accrued on August

28, 1991. The two-year limitations period therefore

expired on August 27, 1993. Since the claims for relief

pursuant to 42 U.S.C. § 1983, first contained within the

Amended Complaint, were not filed until November 8,

1993, the Circuit Court properly ruled them to be barred,

as untimely.

H-1

APPENDIX H

IN THE ALABAMA COURT OF CIVIL APPEALS

Appeal No. 294-0449

ALTON WAYNE SMITH,

Plaintiff - Appellant,

ALABAMA AVIATION AND TECHNICAL COLLEGE,

et al.,

Defendants - Appellees.

APPEAL FROM THE CIRCUIT COURT

OF DALE COUNTY

BRIEF OF DEFENDANTS - APPELLEES

ALABAMA AVIATION AND TECHNICAL COLLEGE,

SHIRLEY WOODIE, FRED GAINOUS,

AND JOHN FERGUS

Jeffery A. Foshee

Edward M. George

Harry A. Lyles

Foshee & Associates

900 South Perry Street

Suite B

Montgomery, Alabama 36104

(334) 265-1960

ORAL ARGUMENT REQUESTED

H-2

TABLE OF CONTENTS

Page

Tees GP GOR oie seen cekse shred iescccenes i

TRE GP PAF e Oe 6 nk obvvcvvenatsexseoccsss iii

STATEMENT REGARDING ORAL ARGUMENT.... v

I. STATEMENT OF THE CASE................. 1

Fa, “FR Se Ge Ro oa a as cece scence 1

B. Course of Proceedings And Disposition

ETE EE Oe Pes epee Pen Pe tre 2

1. Why Mr. Smith’s Employment Was

PRI 6 Ws is be eK ds bo Ke eee es 2

2. The Administrative Procedure And

CIO 5k eke sci ie nernewens tis Senne ce 6

3. The Circuit Court Proceedings ....... 10

a. The Original Complaint.......... 10

b. The Amended Complaint......... 12

c. The Entry of Summary Judgment... 15

Il. STATEMENT OF THE ISSUES ............... 17

il. STATEMENT OF THE FACTS. ............... 18

TV... QERISRGE A Sneed itt dvenideansabanahenade> 19

A. Summary Judgment Was Proper Given Mr.

Smith’s Failure To Timely File Substantial

Evidence Creating A Controlling Dispute

Of Material Fact, As Required By Rule 56,

pT et erat ad nr Sor eee ei 19

B. Mr. Smith’s Claims Are Precluded By The

Administrative Review Process........... 25

C. Mr. Smith’s Claims Are Barred By The

Statute Of Limitations ................... 32

H-3

1. The Amended Complaint Was

fe , PERE S TEES Peer errr ery S 32

2. Mr. Smiih’s “Tolling” Argument Is

Cee peer ere ere 33

3. Mr. Smith’s Untimely Claims Did Not

“RE SC a si kp en das aeSe wenaeess 34

a. Which Rule 15(c) Governs Here... 34

b. Application of Federal Rule 15(c)

To The Section 1983 Claims

Against Defendants .............. 35

c. Application of Alabama Rule 15(c)

To The Section 1983 Claims

Against Defendants .............. 41

d. Application of The Rules to Defen-

dants Gainous and Fergus Partic-

WN si sissneasn teers cae eenyee 42

D. Mr. Smith Failed To State, And Support By

Substantial Evidence, Federal Claims....... 44

E. Additional Reasons Support The Entry Of

Summary Judgment In Favor Of Defen-

dants Fred Gainous And John Fergus.... 47

1. Chancellor Gainous Was Not Alleged

To Have Engaged In Any Illegal Act, or

Failure To Act Proximately Causing

Damage To Br. SOMA. ...s..cc cn eeess 47

2. Dean Fergus Was Not Alleged To Have

Engaged In Wrongful Conduct....... 51

ee BO rere ry er ere 51

.. 6 6 hh 6h ee Shine ew eea teen =

es | ae Be By: reer mere 53

NOTICE OF FILING APPELLEE’S BRIEF........... 54

IV. ARGUMENT

A. Summary Judgment Was Proper Given Mr.

Smith’s Failure To Timely File Substantial Evi-

dence Creating A Controlling Dispute Of Mate-

rial Fact, As Required By Rule 56, A.R.C.P.

In his brief to this Court, Mr. Smith asserts that this

Court “should presume that Mr. Smith was terminated

because of his exercise of his constitutional right to free

speech. “Brief of Appellant Alton Wayne Smith, at p. 5

(“Statement of Facts”).2 It is fundamental, of course, that

2 The only apparent basis for such a remarkable assertion is

contained within the three sentences immediately preceding the

assertion, within Mr. Smith’s Statement of Facts. Therein, Mr.

Smith states, “This Statement of Facts is brief, as the facts has

very little to do with the trial Court’s grant of summary

judgment. In particular, the summary judgment was not based

on any suggestion by the trial Court that Mr. Smith had failed to

adduce evidence that his termination was in violation of his

federal constitutional rights, including his right to free speech

under the First Amendment. Nor was the summary judgment

based on any suggestion that Woodie and Fergus had not

personally violated Mr. Smith’s constitutional rights.” Brief of

Appellant, at p. 5.

Mr. Smith obviously misconstrues the significance of the

Circuit Court’s not specifically commenting on the facts or

evidence. At most, the absence of such a comment indicates

that, in light of the Defendants’ legal defenses, it was

unnecessary to reach the question of whether factual disputes

existed. In other words, summary judgment is appropriate, even

if there is a dispute of material fact, when any such factual

disputes are not controlling to the disposition of the summary

judgment motion. Accordingly, even if Mr. Smith had timely

H-5

for purposes of both Rule 56 (A.R.C.P.) motions and

appeals from grants of summary judgment, the-facts are

established in accordance with, and only in accordance

with, the procedures set forth within Rule 56. In the

instant case, the Defendants-Appellees supported their

motion for summary judgment with considerable evi-

dence demonstrating the facts set forth within Part I of

this Brie:. Mr. Smith failed to timely (or even belatedly)

file substantial admissible evidence in opposition thereto.

Consequently, the only items to be “presumed” are those

facts described in Part I and Mr. Smith’s failure to mini-

mally demonstrate an abridgement of his right to free

speech.

Specifically, it is well established that the presence or

absence of controlling disputes of material fact must be ascer-

tained as of the time the motion for summary judgment is

taken under consideration, and not later. Of course, the non-

moving party (here, Mr. Smith) cannot merely rest upon

his pleadings, but must respond to the motion for sum-

mary judgment with substantial admissible evidence in

opposition, demonstrating a dispute of material fact. If

the non-moving party fails to timely present such admis-

sible evidence, then the Court is left with no alternative

but to consider that evidence uncontroverted, and may

properly enter summary judgment. Eason v. Middleton,

398 So.2d 245 (Ala. 1981); Denniston & Co. v. Jackson, 468

opposed summary judgment with factual evidence tending to

support his claims, administrative preclusion/collateral

estoppel, immunity from suit, and other legal defenses relied

upon by the trial Court still mandated the grant of summary

judgment. Furthermore, as discussed, infra, Mr. Smith Did not

effectively dispute the facts presented by Defendants.

H-6

So.2d 170 (Ala. Civil. App. 1985). Although the non-

moving party is not strictly required per se to respond to a

motion for summary judgment, Alabama’s Appellant [sic]

Courts have frequently reminded litigants that a failure

to respond may be perilous. See, for example, Harold

Brown Bldrs., Inc. v. Jordan Co., 401 So.2d 36 (Ala. 1981).

When must the response with substantial evidence be

submitted? The caselaw is clear that it must be filed before

the date when the motion is heard. Evidence filed after

submission of the motion is too late, and cannot be con-

sidered. Guess v. Snyder, 378 So.2d 691 (Ala. 1979); Stall-

ings v. Angelica Uniform Co., 388 So.2d 942 (Ala. 1980);

Engel Mtg. Co. v. Triple K Lumber Co., 56 Ala. App. 337, 321

So.2d 679 (1975).

Applying these principles io the instant case yields

the result that there was no evidence demonstrating a

violation of Mr. Smith’s constitutional rights before the

trial Court as of the date summary judgment was entered.

Mr. Smith filed absolutely nothing in response to the

Defendants’ motion prior to the date it was taken under

submission. Hence, the facts as contained in Defendants’

motion were uncontroverted. Mr. Smith’s post-judgment

Rule 59 motion attempt to dispute such facts could not be

considered by the Circuit Court. Consequently, summary

judgment was proper. Furthermore, although this Appel-

late Court is not constrained by the Circuit Court’s rea-

soning, it is constrained to the facts as they existed, and

were not disputed, as of the date summary judgment was

entered. Chatham v. CSX Transportation, Inc., 613 So.2d 341

(Ala. 1993).

H-7

Of course, in the Court below Mr. Smith contended,

in his Rule 59 motion, that he did not have a fair oppor-

tunity to submit evidence opposing summary judgment

because he did not receive adequate notice of the July 26,

1994 hearing. Yet, Mr. Smith actually had much more than

ample time to respond to the summary judgment motion,

and by his own lack of action, Mr. Smith suffered to his

peril. Specifically, the motion for summary judgment was

filed as early as December 20, 1993. Despite Mr. Smith’s

failure to promptly respond, the Circuit Court eventually

went on to schedule the motion for a hearing. Indeed,

continuances of the hearing were granted at Mr. Smith’s

request. For example, on March 7, 1994, the trial Court set

the motion for a hearing on March 14, 1994, but on March

9, 1994 continued the hearing at Mr. Smith’s request.

Eventually, on June 21, 1994 the Court set the hearing for

July 25, 1994, (even though Mr. Smith’s counsel later

indicated that he did not receive such notice). Quite

obviously, Mr. Smith should have promptly filed substan-

tial evidence opposing the motion back in December of

1993, or, at a minimum, after the March 7, 1994 notice.

Indeed, when one takes “a step back” and looks at the

entirety of the relevant proceedings, Mr. Smith’s Rule 59

argument that he was denied a fair opportunity to

respond appears even weaker. Mr. Smith had all of the

time between December 20, 1993 and August 11, 1994 in

which to oppose summary judgment. Mr. Smith had eight

months! Did Plaintiff oppose the motion within the eight

months? No. Did Plaintiff file anything whatsoever in

opposition during that long period of time? No. Under

these circumstances ~ with eight months to contradict the

motion - despite his counsel’s allegedly not receiving

H-8

notice of the July 25th hearing, Mr. Smith still had more

than ample and fair opportunity to avoid summary judg-

ment. Mr. Smith failed to act, at his own peril. Conse-

quently, the lack of notice, if any, regarding the July 25,

1994 hearing was not prejudicial, and does not overcome

the above discussed principles justifying, and mandating,

the summary judgment for Defendants.3

Finally on this point, even if the Circuit court were

alleged on this appeal to have committed legal error in

denying Mr. Smith’s Rule 59 motion, and examined

whether or not there belatedly existed a dispute of mate-

rial facts as of the date the Rule 59 Motion was denied

(instead of the date the summary judgment was entered),

it is nevertheless still apparent that the trial court acted

correctly in denying the Rule 59 Motion since no dispute of

material facts existed even as of such late date.

Specifically, if one examines the Record, particularly

at pages 1811-1882 thereof, he still finds no admissible

> It may be anticipated that Mr. Smith may argue, in reply

brief, that somehow a dispute of material fact was created by the

Defendants merely because they filed with the Circuit Court a

copy of the administrative hearing panel proceedings record.

Such an argument, however, not only ignores the burden placed

upon Mr. Smith and procedures required of him by Rule 56,

A.R.C.P., and ignores the precise manner in which Defendants

supported their Summary Judgment motion, but would result in

the absurdity of rendering Rule 56 a nullity. Indeed such an

approach would mean that in any and all cases in which there

had been a prior administrative proceeding, there would always

be a dispute of fact, and therefore, summary judgment could

never be obtained, regardless of the opposing party’s failure to

respond to a Rule 56 motion. Quite obviously, no such result

was intended by the Alabama Rules of Civil Procedure.

H-9

evidence disputing the facts supporting the Defendants’

summary judgment motion or demonstrating abridge-

ment of Mr. Smith’s right to free speech. At pages

1811-1882 of the record, the Court may find just what Mr.

Smith filed with the Circuit Court in response to the grant

of summary judgment, and in support of his Rule 59

motion.* Do these Record pages contain any authenti-

cated, admissible items of evidence creating a dispute of

material fact? No, not a shred. Instead, at pages 1811-1812

is a “Motion To Vacate Or Set Aside Judgment Or, In The

Alternative, For New Trial”; at pages 1813-1834 is a

“Memorandum Brief In Support Of Plaintiff's Motion To

Vacate Or Set Aside Judgment Or, In The Alternative, For

New Trial”; at pages 1835-1836 is an “Affidavit of John B.

Crawley” (regarding his not receiving the June 24, 1994

Order); at pages 1837-1838 an “Affidavit of Lonneke Mul-

ler” (regarding such lack of receipt by counsel’s secre-

tary); at pages 1839-1840 the Case Action Summary; and

at pages 1841-1875 various unauthenticated items of corre-

spondence and other documents and hearsay newspaper

articles.5 There simply is no affidavit of Mr. Smith, or

anyone else, verifying the unauthenticated documents or

offering any admissible evidence of abridgement of free

# One also examines this portion of the Record since Mr.

Smith, in his brief to this Court, contends that such is the place

to look for proof that summary judgment was improper. Mr.

Smith states, “At the same time, Smith submitted a brief and

evidence showing that summary judgment was not proper.

C-1813 to C-1875.” Brief of Appellant Alton Wayne Smith, at p. 3.

5 At pages 1876-1877 and 1878-1880 are a “Motion To

Amend Complaint” and “Second Amendment To Complaint”

respectively.

H-10

speech, any admissible evidence contradicting the Defen-

dants proof of facts, or any other substantial admissible

evidence® whatsoever. Therefore, on this basis alone,

without even having to reach the legal defenses discussed

in the remaining pages of this brief, the judgment below

should be affirmed.

substantial evidence rule applies. Code of Alabama (1975),

§12-21-12. “Substantial evidence” is defined as “Evidence of

such weight and quality that fair-minded persons in the exercise

of impartial judgment can reasonably infer the existence of the

fact sought to be proved.” West v. Founder's Life Assurance Co. of

Florida, 547 So.2d 870, 871 (Ala. 1989); Ballew v. Charter Realty

ERA, 603 So.2d 877 (Ala. 1992). Furthermore, for a claim to go to

a jury, a Plaintiff must put forth substantial evidence of each and

every element of the cause of action.

I-1

APPENDIX I

a * *

§ 6-2-38. Commencement of actions — Two years.

(a) An action by a representative to recover dam-

ages for wrongful act, omission, or negligence causing the

death of the decedent under Sections 6-5-391 and 6-5-410

must be commenced within two years from the death.

(b) All actions by common carriers of property sub-

ject to Chapter 3 of Title 37 for recovery of their charges,

or any part thereof, shall be begun within two years from

the time the cause of action accrues and not after.

against common carriers of property by motor vehicles

subject to this article within two years from the time the

cause of action accrues and not after, except as provided

in subsection (d) of this section; provided, that if claim

for the overcharge has been presented in writing to the

carrier within the two year period of limitation, said

period shall be extended to include six months from the

time notice in writing is given by the carrier to the

claimant of disallowance of the claim, or any part or parts

thereof, specified in the notice.

(d) If on or before the expiration of the two-year

period of limitation in subsection (c) of this section, a

common carrier by motor vehicle subject to Chapter 3 of

Title 37 begins action under subsection (c) of this section

for recovery of charges in respect of the same transporta-

tion service or, without beginning action, collects charges

in respect of that service, said period of limitation shall

[-2

be extended to include 90 days from the time such action

is begun or such charges are collected by the carrier.

(e) The cause of action in respect of a shipment of

property shall, for the purpose of subsections (b) through

(f) of this section, be deemed to accrue upon delivery or

tender of delivery thereof by the carrier and not after.

(f) The term “overcharges” as used in subsections

(b) through (e) of this section shall mean charges for

transportation services in excess of those applicable

thereto under the tariffs lawfully on file with the public

service commission.

(g) Any action brought under Section 25-5-11(b)

must be brought within two years of such injury or death.

(h) All actions for malicious prosecution must be

brought within two years.

(i) All actions for seduction must be brought within

two years.

(j) All actions qui tam or for a penalty given by

statute to the party aggrieved, unless the statute impos-

ing it prescribes a different limitation, must be brought

within two years.

(k) All actions of libel or slander must be brought

within two years.

(1) All actions for any injury to the person or rights

of another not arising from contract and not specifically

enumerated in this section must be brought within two

years.

I-3

(m) All actions for the recovery of wages, overtime,

damages, fees, or penalties accruing under laws respect-

ing the payment of wages, overtime, damages, fees, and

penalties must be brought within two years.

(n) All actions commenced to recover damages for

injury to the person or property of another wherein a

principal or master is sought to be held liable for the act

or conduct of his agent, servant, or employee under the

doctrine of respondeat superior must be brought within

two years.

(o) All actions commenced under Section 6-5-411 to

recover damages for injury or damage to property of a

decedent must be brought within two years.

(p) If any action is commenced before the time lim-

ited has expired, judgment is entered for the plaintiff and

such judgment is arrested or reversed on appeal, the

plaintiff or his legal representative may commence an

action again within one year from the reversal or arrest of

such judgment though the period limited may in the

meantime have expired; and in like manner, if more than

one judgment is arrested or reversed, an action may be

recommenced within one year.

= + *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.