# Opposition Brief — Hill v. Hilliard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1398%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 522 U.S. 981 ## Text No. 97-450 ~ IN THE SUPREME COURT OF THE UNITED STATES October Term, 1996 JANED.HILL, - - - - - - - Petitioner, versus J.J.B. HILLIARD, Vi Lao INC.,EtAlL, - - - - - Respondents. On Petition for Writ of Certiorari To the Kentucky Court of Appeals RESPONDENT BRAB’S BRIEF IN OPPOSITION ELEANORE M. GARBER First Trust Centre, 600N 200 S. Fifth Street Louisville, Kentucky 40202 (502) 585-5100 Counsel for Respondent, W. William Brab October 14, 1997 WESTERFIELD-BONTE CO... 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY. i TABLE OF CONTENTS ERS GH CITI U ED ntstscancsencenerocsecenpinsanesenesene TABLE OF AUTHORITIES ................:cccccceseseeeeees STATEMENT OF THE CASE ......................0000005 The question presented is highly misleading, biased and fails to state a clear federal issue ... REASONS FOR DENYING THE WRIT ............. A. This Court is not the proper forum to promulgate a new national policy rejecting all mandatory arbitration..................ccsse0 B. The issue of “knowing and voluntary” waiver of a judicial forum was never raised ire Ginw TURING COWIE oninnnccccscesesccccecencccsencces C. This Petition presents no unsettled Question Oe ey Ee ciicitiie ckcteeeecadeenneietinsidsettnesnannte SL I Siitinineancinncteeaniennemnnennebnianumninaninnanioesain PAGE il TABLE OF AUTHORITIES PAGE Cases: Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 13 2 Re I a 4 Gilmer v. Interstate/Johnson Lane Corp. ee Pn EP IIE cxensecsesnnetnnsnasemenseninaaiicensnnusniinconias 4,5,7 Hill v. California, 401 U.S. 797 (1971).................. 6 In re Lamkin, 355 U.S. 59 (1957)............ccccccseeeeeees 6 Keene Corp. v. United States, 508 U.S. 200 ERNIE xsea:schessienncettisinstiniictninnaneneaplieniaidindinaianimaeaaaiaitiasS. 5 6 6 ID cccstsccsscenccensmeennepmatiaeitiemeieincetbaiiiia i mteaats Perry v. Thomas, 482 U.S. 480 (1987) ................... 4, Prudential Insurance Co. v. Lai 42 F.3d 1299 (12th Cir., 1994) cert. denied, 116 S.Ct. 61 STII csanscthcasnicaessannablandamaaauarunsieinicainabhaentaaambnaioen ce Regional Jail Authority v. Tackett, Ky., 770 Sis, BE BE LD eccissiceshistencntintninemeiietiiensiinbameniciedts Scherk v. Alberto-Culver Co., 417 U.S. 506 SUITED nntteatsachinesianaatinnteabanabiiemtiigalant east eal Smoot’s Case, 15 Wall 36 (18738) .............cccc eee eee eens Southland Corp. v. Keating 465 U.S. 1 (1984) ...... Transportation Cabinet v. Cassity, Ky., 912 S.W. 2d 48 (1995, Amended, 1996) .................... Williams v. Georgia, 349 U.S. 75 (1955)................ Statutes Cited: Federal Arbitration Act (FAA), 9 U.S.C. Rs Bee I: ensasiasaciicnaicentithamsceceinunnsdentmbadiahaiaabianniiiatis 3,4,5 RE RS ee eee ere 6 Se es SIDA. III sinnncchieinsinsieciecehieceiineeCaimenseniachintehaitiahiceiitn 5 Age Discrimination in Employment Act (ADEA) 29 U.S.C. sec. 621 .............ccccccccceccsenceess ao nH me OF a No. 97-450 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1996 JANED.Hn1L, - - - - - - - - -. Petitioner, v. J.J.B. Hm.iarp, W.L. Lyons, Inc., Et Al., - Respondents. On Petition For Writ Of Certiorari To The Kentucky Court Of Appeals RESPONDENT BRAB'S BRIEF IN OPPOSITION STATEMENT OF THE CASE This petition is one of two petitions seeking this Court’s review of a decision of the Kentucky Court of Appeals. The Kentucky trial court below dismissed claims of Jane Hill, petitioner, (“Hill”, hereinafter) of assault and battery and intentional infliction of emotional distress along with Kentucky statutory claims of discrimination in employment against all respondents, including W. William Brab, her supervisor (“Brab” hereinafter). That court determined that all claims arose out of Hill’s employment and were subject to mandatory arbitration pursuant to the Federal Arbitra- tion Act. The Court of Appeals vacated the trial court order as to dismissal of the claims of assault and battery and false imprisonment against Brab and remanded same 2 for trial, but affirmed the remainder of the trial court’s order. In a separate petition (No. 96-459), Brab seeks review of a portion of the Court of Appeals decision in view of conflicting state and federal court decisions determining which types of claims against a supervisor should be sub- ject to mandatory arbitration. In this petition, Hill objects to the policy of mandatory arbitration in general and con- tests the conclusion of the Kentucky Court of Appeals that all of Hill’s claims against the employer and most of the claims against her supervisor arose out of her employment. As set forth below, there is no cause for this Court’s review of Hill’s contentions. The question presented is misleading, biased and fails to state a clear federal issue. Furthermore, this Court is not the proper forum to pro- mulgate a new national policy rejecting all mandatory ar- bitration. Additionally, the issue of “knowing and voluntary” waiver of a judicial forum, obliquely smuggled into this petition, was never raised in the Kentucky trial or appellate courts. Finally, the lower federal courts and states’ highest courts have enforced, with virtual unanim- ity, mandatory arbitration agreements in the context of statutory civil rights claims of discrimination in employ- ment. The question presented is highly misleading, biased and raises no clear federal issue. Petitioner has presented a highly misleading and loaded question. No citizen of the state of Kentucky or of the United States who claims to have been raped waives a judicial forum by reporting the allegation to an employer. Rape is a serious crime. Hill had unrestricted access to the criminal justice system and a right to a jury trial and chose not to avail herself of same. 3 The question as presented suggests that Hill is a proven victim and that Brab has been found criminally or civilly culpable of rape. There has been not been one scintilla of evidence presented in any forum supporting any of Hill’s allegations, just as no evidence has been adduced to date supporting Brab’s allegation of slander per se. Hill’s question as framed fails to notify this Court of any specific federal statute, rule or regulation underpin- ning a clear federal issue requiring this Court’s attention. REASONS FOR DENYING THE WRIT A. This Court is not the proper forum to promulgate a new national policy rejecting all mandatory arbitration. Respondent Brab submits that this case does present an important issue concerning the application of the Fed- eral Arbitration Act (FAA), 9 U.S.C. sec. 1 et seg., to claims brought against a supervisor during the course of an em- ployment relationship. This Court is not the proper forum, however, to address the apparent issue discussed in this petition. Hill’s main thrust herein appears to be a frontal as- sault on sections 2, 3, and probably section 4 of the FAA which provide for the enforcement, through the state and federal courts, of mandatory arbitration agreements within the coverage of the Act. Hill does not suggest or imply that the FAA is unconstitutional on its face or in its appli- cability to this case. Instead, she alludes to “a vigorous and growing rejection of mandatory arbitration” as a policy by such organizations as the National Association of Secu- rity Dealers (NASD), the Equal Employment Opportunity Commission (EEOC), the National Academy of Arbitrators and others (Petition, pp. 5-7). Hill argues, rhetorically, that voluntary, post-dispute arbitration is “probably faster and cheaper” than mandatory arbitration and lacks the proce- dural disadvantages to employees versus employers (Peti- 4 tion, pp. 8-10.) It is difficult to ascertain from the petition exactly what adjudicatory function she asks this Court to perform in furthering the purported growing consensus against all mandatory arbitration. The FAA was enacted by Congress in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of the United States Code. This Court stated in Perry v. Tho- mas, 482 U.S. 483,489-490, (1987) as follows: As we stated in [Southland Corp. v.] Keating, [465 U.S. 1, 10, 16 (1984)] “in enacting sec. 2 of the [FAA] Congress declared a national policy favoring arbitra- tion and withdrew the power of the states to require a judi- cial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration. Congress intended to foreclose state legislative at- tempts to undercut the enforceability of arbitration agreemen:s. [cites omitted]. Section 2, therefore, em- bodies a clear federal policy of requiring arbi- tration wmiess the agreement to arbitrate is not part of a contract evidencing interstate commerce or is re- vocable “upon such grounds as exist at law or in eq- uity for the revocation of any contract.” (Emphasis added). In Gilmer v. Interstate/Johnson Lane Corp. 500 U.S. 20 (1991) this Court held that the FAA compels enforce- ment of arbitration clauses in a securities registration agree- ment involving a claim of discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sec. 621. In that decision, this Court noted that the purpose of the enaction oi the FAA was “to reverse the long-standing judicial hostility to arbitration agreements that had ex- isted at commen law and had been adopted by the Ameri- can courts ...”, Id at 1651, citing Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-220 (1985) and Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 n.4 (1974). This Court has explcitly recognized the prerogative of Congress 5 to determine national policy concerning enforcement of ar- bitration agreements and has done so in more cases than can be cited here. Accordingly, Brab submits that the proper forum for Hill and for others who now oppose mandatory arbitration as a policy is Congress. Justice David Souter wrote the following in Keene Corp v. United States, 508 U.S. 200, 217 (1993) (decision affirming the dismissal, for lack of juris- diction, of a complaint filed in United States Court of Fed- eral Claims): We have said nothing until now about [Plaintiff's] sev- eral policy arguments, and now can only answer that Keene addresses the wrong forum. It may well be, as Keene argues that [28 U.S.C. sec. 1500 (1988 ed., Supp. IV] operates in some instances to deprive plaintiffs of an opportunity to assert rights that Congress has gen- erally made available to them. . . . But the “proper theater” for such arguments, as we told another dis- appointed claimant many years ago “is the halls of Congress for that branch of government has limited the jurisdiction of the Court of Claims.” Smoot’s Case, 15 Wall 36, 45 (1873). The authority of a state or federal court to enforce an arbitration agreement derives from the FAA. The proper branch of government for Hill to seek redress in repealing all or part of the FAA is “the halls of Congress”, not this Court. B. The Issue of “knowing and voluntary waiver” of a judicial forum was never raised or decided in the state courts. The petition states that this Court’s decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) did not address the issue of a knowing and voluntary waiver of an employee's right to go to court (Petition, p. 9). Neither has Petitioner until now. While this precise issue was 6 properly raised and addressed in Prudential Insurance Co. v. Lai, 42 F. 3d 1299 (12th Cir., 1994), cert. denied 116 S. Ct. 61 (1995), cited in the petition, this petitioner never raised this issue in the Kentucky courts. She has ob- liquely attempted to smuggle a “knowing and voluntary waiver” issue into this petition (petition, pp. 9-12) but this Court cannot consider it here for the first time. Reaffirm- ing its longstanding practice in Perry v. Thomas, 482 U.S. 480, 493 (1987), this Court declined to address the ques- tion of whether an arbitration agreement constituted an unconscionable, unenforceable contract of adhesion where the issue was not decided by the lower courts. A federal claim cannot be considered by this Court, under 28 U.S.C. sec. 1257, unless it has been either raised in the state court or considered and resolved by the state court. McGoldrick v. Compagnie Generale, 309 U.S. 430, 434 (1940); Hill v. California, 401 U.S. 797, 805 (1971). A litigant must follow state procedures in raising the federal question. Jn re Lamkin, 355 U.S. 59 (1957). When re- quired by state practice, the federal question must be raised before the trial court. Williams v. Georgia, 349 U.S. 375, 382-83 (1955.) The rule in Kentucky is that the Kentucky appellate courts are without authority to review issues not raised in or decided by the trial court. Regional Jail Au- thority v. Tackett, Ky., 770 S.W. 2d 225, 228 (1989); Trans- portation Cabinet v. Cassity, Ky 912 S.W. 2d 48, 51 (1995, amended, 1996). Hill never complained at the trial court level, either by sworn testimony or affidavit, that she did not voluntarily or knowingly waive her right to go to court. Furthermore, she never raised this issue before the Kentucky Court of Appeals or the Kentucky Supreme Court. The Kentucky courts have been afforded no opportunity to consider this issue and it is not properly before this court. 7 C. This Petition has not presented an unsettled question of Federal law. - Following Gilmer, the Courts have overwhelmingly en- forced mandatory arbitration of employment disputes in- volving statutory civil rights claims and other claims, as petitioner explicitly concedes (petition, p. 5). Petitioner cites no conflict in the courts, either within the federal appeals courts or among the states’ highest courts or be- tween the federal and state courts. The Kentucky Court of Appeals decision, upholding the deferral to arbitration of all of the statutory claims against her supervisor and all of her claims against her employer, was in accordance with the holding of Gilmer and its many progeny. Petitioner first sought redress for all of her claims be- fore the Equal Employment Opportunity Commission (EEOC). The sole domain of the Equal Employment Op- portunity Commission is claims of discrimination arising in employment. Subsequently, Petitioner filed this action in the Kentucky circuit court. She now submits that none of the claims she brought before the EEOC arose out of her employment. Her complaint belies her present posture. The courts have virtually, uniformly upheld mandatory arbi- tration of the types of claims raised in this action and the petition should be denied. CONCLUSION Because this petition has raised nothing for this Court to decide, the petition should be denied. 8 Respectfully submitted, ELEANORE M. GARBER First Trust Centre, 600 200 South Fifth Street Louisville, KY 40202 (502) 585-5100 Counsel for Respondent, W. William Brab Dated: October 14, 1997 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1398%3A3. Public record. Not legal advice.