Opposition Brief — David v. City & County of Denver

No. 97-18

en nn ow:

—

In The

Suprene Court of the Hnited-States

— >

October Term, 1996

DOROTHY MONICA DAVID,

vs.

Petitioner.

CITY AND COUNTY OF DENVER; WELLINGTON WEBB,

Mayor of the City of Denver; ARISTEDES ZAVARAS, Former

Chief of Police, City and County of Denver; MANUEL

MARTINEZ, Former Manager of Safety, City and County of

Denver; STANLEY BANIESZEWSKI; JOHN R. JOHNSON;

WILLIAM HONER; JAMES LEO and CLAYTON KELLY

CARPENTER,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

DANIEL E. MUSE

City Attorney

J. WALLACE WORTHAM, JR.*

Assistan: City Attorney Superv

SYBIL R. KISKEN

Assistant City Attorney

1445 Cleveland Place, Room 30

Denver, Colorado 80202

(303) 640-2931

Attorneys for Respondents

g , : .

* Counsel of Record

7s ” | Os

800) 3 APPEAL + (600) 5 APPEAL « (800) BRIEF 21 Appellate

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—

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QUESTIONS PRESENTED FOR REVIEW

The following questions are presented for review:

1. Whether there is a split in the United States Courts of

Appeals as to whether a public employee’s allegations of sexual

harassment involve matters of public concern.

2. Whether the Tenth Circuit Court of Appeals properly

applied Connick v. Myers to determine that the speech of

petitioner, a public employee, did not involve a matter of public

concern.

3. Whether the Tenth Circuit Court of Appeals appropriately

reviewed for abuse of discretion the district judge’s decision

not to recuse himself from the case under 28 U.S.C. § 455(a).

TABLE OF CONTENTS

Questions Presented for Review ......-----++++++>

Table of ComQemtS 2... ccc ccccccccccccces pF

Table Of CHAMIORS ... ccc cc eccccccccccccccess

Statement of the Case ..........-0e eee eee ee eeeees

A. Statement of the Facts ...........---++0005:

1.

B. Proceedings Below ...........+--++e++00+

Reasons for Denying the Writ .........--++++++++>

There Is No Split In The Circuits Over Whether

This Court’s Decision In _ Connick v.

Myers Renders A Public Employee's Allegations

Of Sexual Harassment Matters Of Public Concern.

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The Tenth Circuit Court Of Appeals Properly

Applied Connick v. Myers To Determine That A

Public Employee’s Speech Did Not Involve A

Matter Of Public Concern. ...........+-+---

The Tenth Circuit Court Of Appeals Appropriately

Reviewed For Abuse Of Discretion The District

Court Judge’s Decision Not To Recuse Himself

From The Case Under 28 U.S.C. § 455(a). ....

Gumaiestam ...ccccccocecccesecensoeceseseseeess

Page

13

15

18

ili

Contents

Page

‘3 TABLE OF CITATIONS

Cases Cited:

Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990), cert.

GE, Pe Ws EEO CROP E) ccc cc cccescscccces 11, 12

Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1997)

EE EEE Se ee Pe Pe Pee 10, 11

Board of County Comm'rs, Wabunsee County, Kan. v.

Umbehr, __ U.S. __, 116 S. Ct. 2342 (1996) ...... 9

Commissioner v. Duberstein, 363 U.S. 278 (1960) .... 15

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

ae Miwibed deed Hee ve's% i, 5, 8, 9, 10, 11, 13, 14, 18

David v. City and County of Denver, 101 F.3d 1344 (10th

ek ees oc eéhwoede we 10, 13, 14, 15, 16, 17

Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1988) .... 17

General Talking Pictures Corp. v. Western Electric Co.,

Ee a oe Serbs dedeeKeeeb ones 15, 16

Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410

eth sees eu bee ab ks ba dadw es 606 beidée 10

Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989), cert. denied,

SE CPE ccc ccevesccevscccoccocecs 11

iv

Contents

Page

Hinman v. Rogers, 831 F.2d 937 (10th Cir. 1987) ..... 15, 17

Matulin v. Village of Lodi, 862 F.2d 609 (6th Cir. 1988)

66nbnedgedenbenuieeceeccuaaetaeeakaues 11,12

Pickering v. Board of Education, 391 U.S. 563 (1968)

PO ee Ee Fee eee 9

Rice v. Ohio Dep’t of Transp., 887 F.2d 716 (6th Cir. 1989)

eeieaccuasakwarkse tee) semen 10, 12

Rudolph v. United States, 370 U.S. 269 (1962) ....... 16

United States v. Cooley, 1 F.3d 985 (1993) .......... 16, 17

Woodward v. Worland, 977 F.2d 1392 (10th Cir.1992), cert.

denied, 509 U.S. 923 (1993) .......ce ee eee eens 13

Yatvin v. Madison Metropolitan Sch. Dist., 840 F.2d 412

CPO GR, TEED occ ccecincccccccccsscececcnvsess 12

Statute Cited:

, Sik Tat y . Prrerrrrrerrrrri rT yr. i, 15, 16, 18

Rib C Sk | || SeePwrrrrrrrrTT ere. ctr tt 6

United States Constitution Cited:

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Te, Be ono vc cccésccceceensceceses 10

Contents

Page

Rules Cited:

Supreme Court Rule 10 ...........- see eee eeeeees 1, 14, 16

Supreme Court Rule 10(a) ..........0eeeeeeeeeees 8

Supreme Court Rule 15(3) ...........seeeeeee eens 1,5

Supreme Court Rule 24(2) ........---+eeeeeeeeees 2

1

The City and County of Denver; Wellington Webb, Mayor;

Aristedes Zavaras, former Chief of Police; Manuel Martinez,

former Manager of Safety; Stanley Banieszewski; John R.

Johnson; William Honer; James Leo; and Clayton Kelly

Carpenter hereby submit this brief in opposition to Dorothy

Monica David’s petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Tenth

Circuit in this case. Petitioner has not set forth compelling

reasons to support the grant of her petition as required by

Supreme Court Rule 10.

STATEMENT OF THE CASE

A. Statement of the Facts

Pursuant to Supreme Court Rules 15(3) and 24(2), the

respondents are dissatisfied with the petitioner’s statement of

the facts in that it misstates many of the findings of fact that

were made by the district court after a trial on the petitioner’s

Title VII sexual harassment and retaliation claims. Pet. 10th Cir.

Apndx. 390-411 is the district court’s findings of fact,

conclusions of law, and order.' The district court found that the

petitioner’s [a Denver Police Officer] claims arose out of

treatment she alleged occurred during off-duty incidents

involving co-workers [also Denver Police Officers] Respondents

Baniszewski and Johnson. Jd. at 390. Petitioner claimed that

Baniszewski made uninvited sexual advances to her while they

were working on an off-duty job for a management company.

Id. at 390-91.

Baniszewski admitted he made a comment as alleged by

the petitioner, but claims it was made innocently and in jest and

not with the intent of harassing the petitioner. Jd. at 391. As a

1. References to the appendix the petitioner filed in the Tenth Circuit

Court of Appeals will be in the form of “Pet. 10th Cir. Apndx. __.”

2

result of their off-duty employment, other disagreements arose

over an extended period of time between the petitioner and

Baniszewski and Johnson. /d. Petitioner reported these

disagreements to her supervisor, Sergeant Dave Watt, in June

1987. Following this report, there were “repeated meetings and

contacts” between the petitioner, Baniszewski and several

Supervisors in the petitioner’s patrol district, including

respondents Honer, Leo and Carpenter. Jd. The district court

further found that “[f]rom the time of the first report in June

1987, until the final departmental order of disciplinary action

in August 1989 [against the petitioner], there were constant

problems between the [petitioner] and Baniszewski. During this

period there were several contacts by [the petitioner] with

supervisory officers (Sergeants) alleging harassment by

Baniszewski at her off-duty job, threats by Baniszewski against

her as a result of the off-duty job, as well as other actions by

Baniszewski and apparently Officer Johnson, which {the

petitioner] considered to be harassment or threats. There were

also reports to supervisory officers (Sergeants) by Officer

Baniszewski concerning [the petitioner’s] activities principally

on her off-duty job. . . . [Petitioner] was later discharged from

her off-duty employment, allegedly as a result of a complaint

by Baniszewski to her off-duty employer.” /d. at 392.

The district judge found that “[t]he evidence indicates that

during the ongoing controversies between [petitioner] and

Officers Baniszewski and Johnson, several different supervisors

(Sergeants) attempted to resolve the differences between the

parties. Multiple conversations were had both with [the

petitioner] and Office Baniszewski, investigations were carried

out with respect to the dispute, both officers were ordered to

attempt to work out their personal problems, and transfers or

reassignments were offered to both. However, it appears clear

that neither party would agree to make any accommodations to

resolve the issues, as each contended that the other was totally

3

at fault. It was also suggested by several supervisors (Sergeants)

that if either party had evidence of any inappropriate or illegal

activities by the other, the matter should be reported to [the]

Internal Investigation and Inspection Bureau.” Jd. at 392.

Petitioner filed a complaint against Baniszewski, Johnson

and Honer in April 1989 with respondent Denver Police

Department’s Internal Investigation and Inspection Bureau

(“IIIB”). Id. The district court found that “[u)pon filing of the

IIIB complaint, an investigation of [the petitioner’s) allegations

was undertaken. ... The investigating officer ... found [the

petitioner’s] complaints to be generally rambling and unclear.

There were many allegations which were vague and uncertain,

and interviews with individuals identified by [the petitioner]

generally did not verify her allegations. Accordingly, after a

thorough investigation, the complaint was determined to be

unfounded.” Jd. at 393.

Contrary to the petitioner’s assertions, it has not been

established that “Respondents Baniszewski and Johnson used

the authority with which they [sic] clothed by the Denver Police

Department [in their off-duty positions] to retaliate against [the

petitioner].” Pet. 4.? Instead, the district court dismissed the

claims against Baniszewski and Johnson, and the Tenth Circuit

Court of Appeals (“Tenth Circuit”) reversed that decision on

the ground that the district court had treated the respondents’

motion as a summary judgment motion rather than a motion to

dismiss with respect to Baniszewski and Johnson but failed to

give the petitioner notice of the district court’s conversion of

the motion to dismiss to a motion for summary judgment. Pet.

11a. As a result, the Tenth Circuit remanded the case with respect

to respondents Baniszewski and Johnson, and the case against

them remains pending before the district court with a scheduled

trial date of December 1, 1997. Pet. 16a & 30a.

2. References to the Petition for a Writ of Certiorari will be in the form of

“Pet.

4

Petitioner filed a charge with the U.S. Equal Employment

Opportunity Commission (“EEOC”) on May 3, 1989. In June

1989, she sent a letter to the Denver City Attorney asserting

claims of sexual harassment and retaliation against the City and

individual police officers. In July 1989, petitioner filed a second

charge with the EEOC. Pet. 4a-5a. Apparently this is the speech

the petitioner claims concerns matters of public concern. Pet.

20a-21a.

After the filing of the IIIB complaint in April 1989,

Carpenter transferred the petitioner to a different shift. Carpenter

offered various legitimate, non-retaliatory reasons for this

transfer, including that it seemed likely that the officers on her

detail would takes side with either the petitioner or Baniszewski,

and Carpenter felt such a rift “obviously would seriously

undermine morale and cooperation essential in the operation of

law enforcement officers.” Pet. 10th Cir. Apndx. at 394.

Petitioner’s claim of retaliation arose from disciplinary

actions which followed after she filed her IIIB complaint.

Petitioner had previously been suspended for thirty days in May

1988 (before her sexual harassment complaint to ITIB) as a result

of chronic tardiness. Twenty days of that suspension had been

held in abeyance on the condition that the petitioner not suffer

additional discipline for tardiness for a period of one year. /d.

at 395-96. On April 28, 1989, the petitioner was written up for

being late for roll call, in violation of respondent Leo’s “clear

and substantially inflexible rules regarding tardiness.” Jd. As a

result, the 20-day suspension that had been held in abeyance

was recommended by respondent Chief of Police Zavaras and

approved by respondent Manager of Safety Martinez. Jd. at 396.

Petitioner was again written up as tardy for roll call by the

duty sergeant, Sergeant Costigan on May 16, 1989. Jd. at 397.

Although there was disagreement among command officers as

5

to how the procedures which provided for penalties for repeated

discipline should be interpreted, Chief Zavaras interpreted the

procedures in the more strict fashion, thereby recora>snding

that the petitioner be suspended for six months without pay. Jd.

at 397, 399-400. The district court found that the interpretation

adopted by Chief Zavaras “appears reasonable based upon

legitimate personnel policies and no evidence is presented that

it was discriminatory.” Jd. at 400. Chief Zavaras also

recommended an additional twenty-day suspension for the

petitioner’s April 28, 1989 tardy. On August 29, 1989, Manager

of Safety Martinez concurred with Chief Zavaras’s

recommendations and imposed the penalties upon petitioner. Jd.

The district court noted that “Chief Zavaras testified at_

length regarding the punctuality problem he inherited when he

took over as Chief [of Police] in 1987. He had instituted a

procedure of discipline for tardiness which provided heavy

penalties against ‘chronic’ tardiness offenders, with some of the

penalty suspended on condition that the officer have no further

tardiness write-ups for one year.... This was clearly a

reasonable non-discriminatory reason for the implementation

of his disciplinary rules, and was arguably not contrary to police

department policy.” Jd.

B. Proceedings Below

Pursuant to Supreme Court Rules 15(3) and 24(2), the

respondents are dissatisfied with the petitioner’s summary of

the proceedings below as the petitioner omits portions of the

district court’s grant of the respondents’ summary judgment

motion and the Tenth Circuit’s affirming of that motion which

are critical to a review of issues before this Court. Pet. 5-7. With

respect to the Tenth Circuit’s application of this Court’s decision

in Connick v. Myers, 461 U.S. 138 (1983), the respondents assert

that it is necessary for this Court to review the Tenth Circuit’s

complete analysis of that issue found at Pet. 17a-22a.

6

In addition, with respect to the petitioner’s recusal argument,

the petitioner misstates the district judge’s statements regarding

his prior knowledge of one of the respondents and the

respondents’ witnesses. Pet. 6. The status conference held by

the district judge on November 12, 1993, was not transcribed.

Pet. 10th Cir. Apndx. 441. Nor was the district court’s November

23, 1993 hearing on petitioner’s motion for recusal. Jd. at 442.

Accordingly, the only reference of the district judge’s remarks

(regarding his knowledge of one of the respondents and three

of their witnesses) is the district judge’s November 24, 1993

order denying the petitioner’s motion for disqualification, i.e.,

recusal, Pet. 31a-36a, and the parties’ attorneys’ recollections

of the status conference. Pet. 10th Cir. Apndx. 242-53.

Petitioner claims that the district judge stated that he was a

“pretty close friend” of the current Chief of Police David

Michaud who was one of the respondents’ witnesses. Pet. 6.

Respondents’ counsel, however, indicated that he did not recall

the district judge using the term “pretty close friend.” Pet. 10th

Cir. Apndx. 247. Nor did the district judge describe his

relationship with Chief Michaud in that way. Pet. 32a-34a.

Instead, the district judge indicated that he represented Chief

Michaud in a § 1983 case twenty years earlier when Chief

Michaud was a member of the Sheriff’s Department of Weld

County, Colorado. Pet. 32a-33a. The district judge never

represented Chief Michaud as his personal attorney. Following

that case, the district judge had “had brief conversations with

Chief Michaud on probably four or five occasions prior to

December of 1992, at which time Chief Michaud in his official

capacity as Chief of the Denver Police Department headed the

investigation of the killing of the [district judge’s] son, Douglas

Sparr. During that investigation, the [district judge] recall[ed]

two or three conversations with Chief Michaud relative to the

investigation.” Pet. 33a.

7

Petitioner further claims that Sergeant Armedia Gordon,

another of respondents’ witnesses, was one of the investigating

officers in the case involving the district judge’s son’s homicide.

Pet. 6. Petitioner claims that the district judge stated that he

knew Manager Martinez, one of the respondents, and Tina Rowe,

one of respondents’ witnesses. Pet. 6. The district judge indicated

that Sergeant Gordon interrogated him “for approximately 30

minutes on the first evening of the [homicide] investigation.

There was no further contact with Sergeant Gordon during the

ongoing investigation other than being made aware of her

participation therein.” Pet. 33a.

The district judge indicated that he was acquainted with

Manager Martinez when the district judge was a state court judge

and Mr. Martinez was assigned to the Office of the Public

Defender in the state court district. Pet. 33a. The district judge

further indicated that after Mr. Martinez was appointed Manager

of Safety for the Denver Police Department, the district judge

“had several passing conversations with him in the course of

hearing cases involving the City and County of Denver and in

the halls of the City and County Building.” Pet. 33a. With respect

to Ms. Rowe, the district judge indicated that he did “not recall

ever meeting” her. Pet. 33a.

The district court’s complete decision regarding petitioner’s

motion for recusal is found at Pet. 31a-36a, and the Tenth

Circuit’s review of the district court’s recusal decision is found

at Pet. 8a-9a. Finally, it is important to note that ultimately the

district court, after a trial, rejected the petitioner’s claims of

sexual harassment and retaliation under Title VII. Pet. 10th Cir.

Apdnx. 18 & 21. The Tenth Circuit affirmed on the Title VII

claim. Pet. 29a.

8

REASONS FOR DENYING THE WRIT

I.

THERE IS NO SPLIT IN THE CIRCUITS OVER

WHETHER THIS COURT’S DECISION IN CONNICK V.

MYERS RENDERS A PUBLIC EMPLOYEE’S ALLEGA-

TIONS OF SEXUAL HARASSMENT MATTERS OF

PUBLIC CONCERN.

Petitioner alleges that the United States Courts of Appeals

for the various circuits (the “Circuits”) are split over whether

this Court’s decision in Connick v. Myers, 461 U.S. 138 (1983),

renders a public employee’s allegations of sexual harassment

matters of public concern. There is no such split in the Circuits,

and therefore Supreme Court Rule 10(a), involving conflicts

between Circuits, is not implicated and the petition should be

denied.

In Connick, 461 U.S. at 147-48, the Court set forth a test to

determine when speech by a public employee is protected by

the First Amendment:

[W]hen a public employee speaks not as a

citizen upon matters of public concern, but

instead as an employee upon matters only of

personal interest, absent the most unusual

circumstances, a federal court is not the

appropriate forum in which to review the

wisdom of a personnel decision taken by a

public agency allegedly in reaction to the

employee’s behavior.... Whether an

employee’s speech addresses a matter of

public concern must be determined by the

content, form, and context of a given

Statement, as revealed by the whole record.

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9

Petitioner argues that some Circuits consider the speaker’s

motive to be dispositive, while others consider motive as only

one factor. Pet. 12-13. Petitioner further argues that the presence

or absence of media attention is a factor important in some

Circuits, and ignored by others. Pet. 13. Finally, it also appears

that the petitioner argues that sexual harassment allegations

should always be found to constitute a matter of public concern.

Pet. 7. The petitioner’s arguments must fail.

The petitioner mischaracterizes the state of Circuit

precedent. The Circuits have relied and continue to rely upon

Connick as establishing the controlling rule. Indeed, this Court

has cited Connick with approval as recently as 1996 in Board of

County Comm’rs, Wabunsee County, Kan. v. Umbehr, __ U.S.

—., 116 S. Ct. 2342, 2347 (1996). Moreover, the cases cited by

petitioner properly applied Connick in determining when speech

involves a matter of public concern. The primary requirement

from Connick is that a court should not look at one factor, such

as motive, to the exclusion of the others. This requirement does

not mean that a court may not give more weight to some factors

than to others. In the cases cited by the petitioner, the respective

courts applied the Connick test to the facts, and found that some

factors weighed more heavily than others in each case. This is

an appropriate application of Connick.

The gravamen of the petitioner’s argument is that all

allegations of sexual harassment are consistently matters of

public concern. Respondents submit that the fact that the Circuits

reach different conclusions regarding allegations of sexual

harassment is consistent with this Court’s instruction that

content, form and context be considered. Indeed, the Connick

Court reiterated a statement first made in Pickering v. Board of

Education, 391 U.S. 563, 569 (1968), which undermines the

petitioner’s purported Circuit split argument: “ ‘Because of the

enormous variety of fact situations in which critical statements

10

by . . . public employees may be thought by their superiors ...

to furnish grounds for dismissal, we do not deem it either

appropriate or feasible to attempt to lay down a general standard

against which all such statements may be judged.’ ” Connick,

461 U.S. at 154. Petitioner appears to seek the Court’s grant of

her petition so that the Court can then do just that, i.e., lay down

a general standard against which all sexual harassment

allegations may be judged. This is not “appropriate or feasible.”

See Azzaro v. County of Allegheny, 110 F.3d 968, 980 (3d Cir.

1997) (en banc) (“we do not suggest that all public employee

complaints about sexual harassment are matters of public

concern”).?

In light of the fact-driven nature of the analysis of whether

a public employee’s speech is a matter of public concern, the

petitioner’s attempt to set up a conflict among the Circuits that

requires this Court’s resolution is artificial. There is not a conflict

simply because some facts have compelled some Circuits to find

allegations of sexual harassment to be a matter of personal

concern, while other facts have compelled some of the same

Circuits as well as other Circuits to find allegations of sexual

harassment to be a matter of public concern. Compare David v.

City and County of Denver, 101 F.3d 1344 (10th Cir. 1996),

Rice v. Ohio Dep’t of Transp., 887 F.2d 716, (6th Cir. 1989),*

3. To the extent that the petitioner relies upon this Court’s statement in

Connick that an individual's “right to protest racial discrimination” is “a matter

inherently of public concern,” to support her argument that sexual harassment

allegations should always be found to be matters of public concern, such

reliance is misplaced. 461 U.S. at 148 n.8 (citing Givhan v. Western Line

Consol. Sch. Dist., 439 U.S. 410 (1979)). This country’s history with respect

to slavery and other racially-related atrocities, which were only partly

addressed by the passage of the Thirteenth Amendment, renders sui generis

speech about race discrimination.

4. Certiorari was granted by this Court in Rice and the decision was

vacated and remanded on other grounds. 497 U.S. 1001 ( 1990). After further

proceedings, the Sixth Circuit rendered a decision in Rice, 14 F.3d 1133 (6th

Cir.), cert. denied, 512 U.S. 1207 (1994).

1]

and Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989), cert. denied,

494 U.S. 1029 (1990) (all of which found some speech by public

employees regarding sexual harassment or sex discrimination

to involve personal matters), with Azzaro v. County of Allegheny,

110 F.3d 968 (3d Cir. 1997) (en banc) and Matulin v. Village of

Lodi, 862 F.2d 609 (6th Cir. 1988) (both of which found speech

by public employees regarding sexual harassment to involve

matters of public concern).

Petitioner claims that the Third Circuit’s decision in Azzaro,

110 F.3d at 968, conflicts with the Tenth Circuit’s decision in

this case. The Azzaro court stated that finding the speaker’s

motive as determinative is inconsistent with Connick. 110 F.2d

at 978. Petitioner erroneously argues that by contrast, the Tenth

Circuit relied solely upon petitioner’s motive in this case to the

exclusion of other factors. The Tenth Circuit did not consider

only the employee’s motive, however; indeed, the Tenth Circuit

stated that it must consider the “ ‘content, form and context of a

given statement, as revealed by the whole record,’ ” as well as

the motive. Pet. 19a (citing Connick, 461 U.S. at 147-48).

Accordingly, the purported conflict between the Third and Tenth

Circuits is illusory.

Similarly, the petitioner’s assertion of a conflict between

the Tenth Circuit’s decision in this case and the Seventh Circuit’s

decision in Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990),

cert. denied, 501 U.S. 1204 (1991), is inaccurate. In Auriemma,

the court stated the speech by plaintiffs, eighteen white police

officers who claimed they were demoted because of their race

by a black superintendent of the Chicago police department,

was not a “ ‘run-of-the-mine single-plaintiff lawsuit,

distinguishing an earlier Seventh Circuit case. 910 F.2d at 1460

> 99

5. In Gray, the court found two of the plaintiff’s statements to relate to

personal matters, but the third to be a matter of public conern. 885 F.2d at

411.

12

(quoting Yatvin v. Madison Metropolitan Sch. Dist., 840 F.2d

412, 420 (7th Cir. 1988)). The Auriemma court stated that the

case involved “pervasive or Systemic misconduct by public

officials.” 910 F.2d at 1460. By contrast, the Tenth Circuit

analysis at issue here did involve a “run-of-the-mine single

plaintiff lawsuit,” and is by its dramatically different facts is

not similar to Auriemma.

Petitioner appears to assert that the Sixth Circuit’s decision

in Matulin, 862 F.2d at 609, conflicts with the Tenth Circuit’s

decision in this case. In Matulin, the Sixth Circuit determined

that a public employee’s allegations of sex and handicap

discrimination made to a reporter involved a matter of public

concern. However, Matulin is distinguishable from this case in

that the employee there indicated that she was giving the

interview not for personal reasons, but because she wanted to

inform the public about discrimination in that office generally,

and the reporter initiated the story by approaching the employee

(rather than the employee having approached the reporter).

Matulin, 862 F.2d at 611. Those facts convinced the Matulin

court that the employee was speaking as a citizen on matters of

public concern, in contrast with this case, where the Tenth Circuit

concluded that petitioner was speaking as an employee on

matters of private concern. The petitioner’s reference to news

media in her case should not be considered as the speech

analyzed by the Tenth Circuit was comprised of two EEOC

charges and a letter to the Denver City Attorney, not statements

to the media. Like in this case, in Rice, the Sixth Circuit

determined that a public employee spoke purely for his own

interest and, unlike the employee in Matulin, did not speak about

a public controversy. The court therefore determined the speech

in Rice was not a matter of public concern. Rice, 887 F.2d at

720-21.° |

6. It appears that the petitioner argues that certiorari should be granted

because there purportedly are intra-circuit conflicts in at least the Sixth and

(Cont'd)

13

Il.

THE TENTH CIRCUIT COURT OF APPEALS

PROPERLY APPLIED CONNICK V. MYERS TO

DETERMINE THAT A PUBLIC EMPLOYEE’S SPEECH

DID NOT INVOLVE A MATTER OF PUBLIC CONCERN.

Petitioner asserts that the Tenth Circuit Court of Appeals

improperly applied Connick to determine that the public

employee’s speech at issue did not involve a matter of public

concern. That assertion is without merit — the Tenth Circuit

accurately and thoroughly applied the Connick standard to the

facts before it. Petitioner claims that the Tenth Circuit focused

only on petitioner’s motive in making her complaints, and this

focus indicated a failure to follow the Connick requirement that

one consider the whole record and the context, form and content

of the statement. However, not only did the Tenth Circuit cite

that language from Connick, it explicitly stated that the

“fundamental inquiry” is whether the plaintiff speaks as an

employee or as a citizen. David, 101 F.3d at 1355 (citing

Connick, 461 U.S. at 147). The Tenth Circuit further stated “the

fact that the plaintiff’s complaints involved personal grievances

about internal employment conditions was not the end of the

inquiry.” 101 F.3d at 1356 (citing Connick, 461 U.S. at 149, and

Woodward v. Worland, 977 F.2d 1392, 1404 (10th Cir.1992),

cert. denied, 509 U.S. 923 (1993)). Upon review of the

petitioner’s EEOC complaints and letter to the Denver City

(Cont’d)

Seventh Circuits. Pet. 12. As described herein, the different results reached

with the Sixth and Seventh Circuits, respectively, were based on different

facts — not on inconsistent application of the law. Moreover, even if there

were a intra-circuit conflict, a conflict within another Circuit does not provide

a compelling reason to grant certiorari in this particular case involving the

Tenth Circuit. If other Circuits misapply the law, then this Court should grant

certiorari when and if a case from one of those Circuits reaches this Court,

but not in this case, where the law was properly applied.

14

Attorney, the Tenth Circuit concluded the petitioner’s speech

was personal to her and that there were no allegations of

interference with the Department’s performance of its

governmental responsibilities. Jd. at 1356. In short, the Tenth

Circuit did not consider motive to be dispositive, but rather it

reviewed all aspects of petitioner’s speech as required by

Connick. Consequently, certiorari should not be granted based

on the argument that the Tenth Circuit improperly applied

Connick.

Notwithstanding the Tenth Circuit's proper decision,

Supreme Court Rule 10 states that a petition “is rarely granted

when the asserted error consists of . . . the misapplication of a

properly stated rule of law.” Accordingly, even if the Tenth

Circuit had misapplied the law, it accurately set forth the Connick

standard and therefore certiorari would not be justified on that

basis. In sum, there is no justification for granting petitioner’s

request for certiorari on the First Amendment public concern

issue because the Tenth Circuit properly applied the appropriate

law and there is no split among the Circuits. Petitioner’s

argument essentially is a disagreement with the lower courts’

finding of facts and application of law to those facts — not a

legitimate disagreements of law that requires this Court’s

intervention.’

7. Moreover, this would not be a good case factually in which to grant

certiorari in that the petitioner’s complaints involved off-duty conduct, not

necessarily related to her status as a public employee. Moreover, the sexual

harassment allegations were rejected by IIIB as “generally rambling and

unclear,” “vague and uncertain,” and “unfounded.” The district court and

Tenth Circuit also concluded that the petitioner had not established her claims

of sexual harassment and retaliation.

15

ITI.

THE TENTH CIRCUIT COURT OF APPEALS

APPROPRIATELY REVIEWED FOR ABUSE OF

DISCRETION THE DISTRICT COURT JUDGE’S

DECISION NOT TO RECUSE HIMSELF FROM THE

CASE UNDER 28 U.S.C. § 455(a).

Petitioner argues that the Tenth Circuit did not apply the

standard set forth in Hinman v. Rogers, 831 F.2d 937 (10th Cir.

1987), to determine if the district judge should have recused

himself. Petitioner concedes that the Tenth Circuit “referred” to

the correct standard in its decision, Pet. 15, but suggests that

the district court must not have applied the Hinman objective

standard because the district court denied the recusal motion.

This assertion by the petitioner is nothing more than an attempt

to transform a matter of judicial discretion into a question of

law.

The Tenth Circuit applied the Hinman objective standard,

i.e., the reasonable person standard, examined each point

advanced by the petitioner supporting recusal, and found them

lacking. David, 101 F.3d at 1351. The Tenth Circuit’s review of

the district court’s decision concluded that the trial judge did

not abuse its discretion in denying officer David’s motion for

disqualifications pursuant to 28 U.S.C. § 455(a). Id. These

findings were supported by the evidence and are not clearly

erroneous, so there is no justification for a grant of certiorari.

General Talking Pictures Corp. v. Western Electric Co., 304 U.S.

174 (1938) (concurrent findings of both courts below will not

be disturbed unless plainly without support); Commissioner v.

Duberstein, 363 U.S. 278, 291 (1960) (where the trial has been

by a judge without a jury, the judge’s findings must stand unless

clearly erroneous).

16

Even if the decision of the Tenth Circuit concerning recusal

was clearly erroneous, certiorari is simply not justified because

the Tenth Circuit applied the proper standard. See Supreme Court

Rule 10 (certiorari will rarely be granted when the asserted error

consists of erroneous factual findings or the misapplication of a

properly stated rule of law); General Talking Pictures Corp.,

304 U.S. at 178 (certiorari will not be granted merely to review

the evidence or inferences drawn therefrom); Rudolph v. United

States, 370 U.S. 269, 270 (1962) (certiorari was improvidently

granted and will be withdrawn where the case involves merely

a review of findings of fact which would be of no importance

save to the litigants themselves).

Petitioner argues that a reasonable person would believe

that the judge would feel indebted to the police chief and to the

Denver Police Department for investigating his son’s murder,

and the judge would repay this “debt” by giving the police

department and the police chief favorable treatment. As the Tenth

Circuit noted, there was absolutely no evidence of favoritism

by the judge in the trying of the case, and it is not at all unusual

for a judge with criminal jurisdiction to have some contacts with

the police department and its officers over the years. David,

101 F.3d at 1351.

Petitioner also argues that a newspaper article urging that

the trial judge recuse himself compels a conclusion that the

judge’s impartiality can reasonably be questioned. Pet. 16. In

United States v. Cooley, 1 F.3d 985, 993-94 (1993), the Tenth

Circuit makes clear that a reporter’s personal opinion appearing

in the media will not ordinarily satisfy the requirements for

disqualification under § 455(a).

As a second, related reason for recusal, petitioner argues

that the judge’s representation of the police chief once more

than twenty years ago, when the chief was a deputy sheriff,

17

would result in a reasonable person doubting the judge’s

impartiality. As the Tenth Circuit noted, a judge’s prior

representation of a party is not automatic grounds for recusal.

David, 101 F.3d at 1351. As the Tenth Circuit noted in United

States v. Cooley 1 F.3d 985, 993 (1993), “[t]he inquiry is limited

to outward manifestations and reasonable inferences drawn

therefrom.” There were no outward manifestations of bias, so

there is no reason to question the judge’s decision not to recuse.

The Hinman test “must not be so broadly construed that it

becomes, in effect, presumptive so recusal is mandated upon

the merest unsubstantiated suggestion of personal bias or

prejudice.” Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1988).

If the Court were to accept the petitioner’s argument in this case,

it might result in required recusal of any judge who had ever

had a crime against him or her investigated by the police. Also,

as the Tenth Circuit noted, in this era of crowded dockets “there

is as much obligation for a judge not to recuse when there is no

occasion for him to do so as there is for him to do so when there

is.” David, 101 F.3d at 1351.

18

CONCLUSION

Petitioner’s attempt to elevate disagreement with the Tenth

Circuit decision at issue clearly fails to meet this Court’s

compelling reasons standard for granting certiorari. There simply

is no split in the Circuits involving Connick v. Myers. The record

of the proceedings clearly established that the Tenth Circuit’s

conclusion that the trial judge did not abuse his discretion

pursuant to 28 U.S.C. § 455(a) was appropriate based on the

law and the facts.

Accordingly, respondents respectfully request that the

petition for a writ of certiorari be denied.

Respectfully submitted,

DANIEL E. MUSE

City Attorney

J. WALLACE WORTHAM, JR.*

Assistant City Attorney Supervisor

SYBIL R. KISKEN

Assistant City Attorney

1445 Cleveland Place, Room 303

Denver, Colorado 80202

(303) 640-2931

Attorneys for Respondents

* Counsel of Record