Opposition Brief — Nicklas v. Eagle

n Seperese Comet, Wi.

* FILED

No. 02-1002 -

FEB $ 2003

OFFI |

In The

Supreme Court of the Anited States

¢

JOHN NICKLAS, M.D.,

Petitioner,

V.

KIM EAGLE, M.D., ET AL.,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

CHESTER E. KASIBORSKI, JR. DONALD B. MILLER

(P15728) (P23419)

JOHN J. RONAYNE, III (P23519) Counsel of Record

KASIBORSKI, RONAYNE & FLASKA BUTZEL LONG

A PROFESSIONAL CORPORATION 150 W. Jefferson Avenue

1900 Buhl Building Suite 900

535 Griswold Detroit, Michigan 48226

Detroit, Michigan 48226-3686 (313) 225-7020

(313) 961-1900

Counsel for Respondents

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

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF QUESTION

PRESENTED FOR REVIEW

Has Petitioner shown compelling reasons for review

where the question presented by Petitioner was not

decided by the Court of Appeals for the Sixth Circuit and

was not the basis for that Court’s ruling?

ii

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION PRE-

IEE ed FUPEe BEV ITT dnvnicsenrciteristbinsinastseinivens i

TABLE OS AUT Tae erccssssevesssevinenccsepccvecstovnes iv

COUNTERSTATEMENT OF THE CASE ................. 1

SUMMARY OF ARGUMENT...................:ssccsssceeeeees 1

ARUITIIITTE seninivsiecivcenibialaiancieidimnatemeiniiaess 3

I. PETITIONER HAS NOT SHOWN COM-

PELLING REASONS FOR REVIEW BE-

CAUSE THE QUESTION PRESENTED BY

PETITIONER WAS NOT DECIDED IN THIS

CASE BY THE COURT OF APPEALS FOR

THE SIXTH CIRCUIT AND WAS NOT THE

BASIS FOR THAT COURT'S RULING........... 3

II. PETITIONER HAS NOT SHOWN COM-

PELLING REASONS FOR REVIEW BY

VIRTUE OF THE DECISIONS IN GABLE

OR TRAN PE wxcinsvsensicxsavarnsenionaneviaarnenenions 5

A. Gable And San Filippo Are Distinguish-

able On Their Facts Because Plaintiff’s

Complaint Does Not Even Mention The

First Amendment Or The Petition Clause

Of The First Amendment....................s000 5

B. Gable Is Distinguishable On Its Facts

Because Petitioner’s State Court Action

Se PORE DS. “RD scsiikdiinciccdecmianaun 7

C. Gable Is Distinguishable On Its Facts Be-

cause Petitioner Is A Public Employee......... 10

TABLE OF CONTENTS -— Continued

Page

D. The Court Of Appeals For The Sixth Cir-

cuit Applies The “Public Concern” Test

Where Public Employees Have Com-

plained Of Retaliation For Having Filed

SINE cls cascnick noes laueceseoducapinersiinuiaaess 11

E. The Decision In San Filippo IsIncorrect. 14

1. This Court Has Stated That The Free

Speech And Petition Clauses Should

Be Analyzed In The Same Way........... 14

2. Seven Other Circuits Have Decided

The Same Issue Differently Than The

I cc ccuescs kelnbuatecieesinsibbewkes 16

III. PETITIONER HAS NOT SHOWN COM-

PELLING REASONS FOR REVIEW BY HIS

RELIANCE UPON THE OTHER CASES

CITED IN HIS PETITION. ...........00..00..0000ss0000 19

CONCLUSION AND RELIEF.................::csssessssseeeees 24

iv

TABLE OF AUTHORITIES

Page

CASES

Bank of Jackson County v. Cherry, 980 F.2d 1362

(llth Cir. 1993), cert. den., 510 U.S. 819, 114

S.Ct. 73, 126 L. Ed. 2d 42 (1993) ............ssssssssceseeoees 21, 22

Belk v. Town of Minocqua, 858 F.2d 1258 (7th Cir.

ED siikvtiesrnictisisghtandiincenanesnbileentietiiaiiitaniaapdibaioieseeins 17, 20

Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75

Fes Bs Se CE CD eatitaetrevscliciniuniahitiininnennnnenienin 10, 12, 16

Gable v. Lewis, 201 F.3d 769 (6th Cir. 2000)............. passim

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

den., 494 U.S. 1029, 110 S.Ct. 1476, 108 L. Ed. 2d

SE CEP cecitiziiasiniscncimninsieininntarignevimiangiammnaivesss 18, 20

Grigley v. City of Atlanta, 136 F.3d 752 (11th Cir.

1998), cert. den., 525 U.S. 819, 119 S.Ct. 59, 142

Res Be i CIID siccnaiihcvadbcibinctinihsoniighishicalinnnennaie 17, 18, 22

Haynesworth v. Miller, 820 F.2d 1245 (D.C. Cir.

IPE sesicteochiniusicestesnipsieninicieenctoldicngtaaeidstetctaaiaekasiaatisiandonemnundenshiones 21

Hoffman v. Mayor, Councilmen and Citizens of the

City of Liberty, 905 F.2d 229 (8th Cir. 1990) ................. 17

Martin v. City of Del City, 179 F.3d 882 (10th Cir.

NT sicsieaithccsuias) dencsienacadiioaletccuabinbaacinataa ica decieiaeaaeliradiebtick 17

McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787,

OD Ke, TOG. Se BW CAD bacsintiicicececetneiseseasennennnes 14, 15, 17

N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9

is, Fea Se A ED cictcebielasibsineiaciantas deuieneinniiaaaenniiciinniss 20

National Collegiate Athletic Association v. Smith,

525 U.S. 459, 119 S.Ct. 924, 142 L. Ed. 2d 929

CII TTI Picnisiceicseiseisidenselekehsibcdeleeinbtboiicedaaianaalcdagaleidipadipsaeadtianaiedl 5

TABLE OF AUTHORITIES — Continued

Page

Northern Pennsylvania Legal Services, Inc. uv.

County of Lackawanna, 513 F.Supp. 678 (M.D.

Perry v. McGinnis, 209 F.3d 597 (6th Cir. 2000)...... 13, 14, 18

Rathjen v. Litchfield, 878 F.2d 836 (5th Cir. 1989)........... 17

Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir.

1997), cert. den., 524 U.S. 952, 118 S.Ct. 2368,

DES Ts, ks Se Fae Ce tevintanctenethctenmestatanipiindnina 17, 18

Rice v. Ohio Department of Transportation, 887

F.2d 716 (6th Cir. 1989), vacated on other

grounds, 497 U.S. 1001, 110 S.Ct. 3232, 111

Bos i SHEE PMI © PITT ib tcdcnentinicnacsenncuncdeisnibcetaaeiabbeninuiis 12, 18

San Filippo v. Bongiovanni, 30 F.3d 424 (8rd Cir.

1994), cert. den., sub. nom. Bongiovanni v. San

Filippo, 513 U.S. 1082, 115 S.Ct. 735, 130

Ses Ss i Ne CE icecnuttntcicceentnnnniteniacadieia passim

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999)......19, 20

Valot v. Southeast Local School District Board of

Education, 107 F.3d 1220 (6th Cir. 1997).......... 12, 13, 18

Vasquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995),

cert. den., 517 U.S. 1156, 116 S.Ct. 1545, 134

Bi; Ba eC ii ikacincettesadadncressecaninininsbansiaisebshannuas 20, 21

Wayte v. United States, 470 U.S. 598, 105 S.Ct.

RDG, BG Tn BE. BE BET CEI) hicecscceccteevnccinsntenesvasarscccnies 16

Westchester Legal Services, Inc. v. County of West-

chester, 607 F.Supp. 1379 (S.D. N.Y. 1985).............. 22, 23

TABLE OF AUTHORITIES -— Continued

Page

White Plains Towing Corp. v. Patterson, 991 F.2d

SGD CIE CAR: BE kesccnesncccencscccstussciinasnteniithestiniinions 17, 22

Wisniewski v. United States, 353 U.S. 901, 77 S.Ct.

GEE, & Sn. Bs TS GRE veitevencepniteticetacsneninntederstadisieneiaiin 4

CONSTITUTION, STATUTES AND COURT RULES

Fe APOE Wp aicinncanensnsssninndeadiabineaphanieabdiaiensnamaaaiaeete 7

DUR Ce BOR esesncericerercesisnenenenieasenmennaamanna te

UR: CIR. BRT vecscevcnnensanptnceveseilisanbiiannaiibanamminiiatnamasaga 3,5

United States Constitution, First Amendment......... passim

1

COUNTERSTATEMENT OF THE CASE

Petitioner’s Verified Complaint (“Complaint”) consists

of 19 pages and 79 separately numbered paragraphs.’

However, it totally fails to invoke or even mention the

First Amendment.

Petitioner did not mention the First Amendment until

he filed his Brief in Opposition to Defendants’ Motion to

Dismiss. Indeed, Judge Friedman, the district court judge,

properly observed in his Opinion and Order: “Plaintiff’s

Complaint does not mention either ‘free speech’ or ‘First

Amendment’” (Appendix C, p. 13a, n.1).

Then, as the Court of Appeals noted, it was not until

he reached the Court of Appeals that Petitioner argued

“for the first time” that he was relying upon the Petition

Clause of the First Amendment (Appendix B, p. 6a).

>

vv

SUMMARY OF ARGUMENT

Petitioner has not shown the existence of compelling

reasons for this Court to exercise its discretion to grant

review. In this case the United States Court of Appeals for

the Sixth Circuit did not decide the question of whether

the “public concern” test is applicable in circumstances

where a public employee alleges that his rights under the

Petition Clause of the First Amendment have been vio-

lated. Rather, the Court of Appeals affirmed the dismissal

' Petitioner’s Petition states, at p. 2, that a copy of the Complaint

is included in the Appendix to the Petition. However, it was not

included in the Appendix to the Petition served upon Respondents.

2

of Petitioner’s Complaint and the Judgment for the Defen-

dants on the grounds that Respondents were entitled to

qualified immunity. Petitioner has not argued in his

Petition that the Court of Appeals for the Sixth Circuit

erred in making that ruling and, therefore, has not shown

the existence of conflict between its decision in this case

and decisions of other Courts of Appeals or of this Court.

Further, Gable v. Lewis, 201 F.3d 769 (6th Cir. 2000),

which is relied upon by Petitioner, is distinguishable on its

facts because: 1) in this case the Complaint does not even

mention the First Amendment or the Petition Clause of

that Amendment; 2) Petitioner’s state court action is not a

“petition”; and 3) the plaintiff in Gadle, unlike Petitioner,

was not a public employee. In addition, San Filippo v.

Bongiovanni, 30 F.3d 424 (3rd Cir. 1994), cert. den., sub.

nom. Bongiovanni v. San Filippo, 513 U.S. 1082, 115 S.Ct.

735, 130 L. Ed. 2d 638 (2995), which is also relied upon by

Petitioner, is directly at odds with holdings of seven other

Courts of Appeals. In all of those decisions that were

decided after San Filippo, the Courts of Appeals discussed

and then declined to adopt the reasoning of the Third

Circuit.

ee

vv

3

ARGUMENT

I. PETITIONER HAS NOT SHOWN COMPEL-

LING REASONS FOR REVIEW BECAUSE THE

QUESTION PRESENTED BY PETITIONER

WAS NOT DECIDED IN THIS CASE BY THE

COURT OF APPEALS FOR THE SIXTH CIR-

CUIT AND WAS NOT THE BASiS FOR THAT

COURT’S RULING

Petitioner has not shown “compelling reasons” for this

Court to exercise its discretion to grant his Petition for a

Writ of Certiorari (Sup. Ct. R.10). According to the Peti-

tioner, the question presented for review in his Petition is

as follows:

Does the “public concern” limitation of Connick v.

Myers, 461 U.S. 1388 (1983), under which the

First Amendment does not prohibit employer re-

taliation against a public employee for exercise of

free speech rights unless the speech involved a

matter of “public concern,” apply to retaliation

for exercise of the right of access to the courts

under the Petition Clause of that Amendment?

(Petition, p. i)

However, the Court of Appeals for the Sixth Circuit did not

decide that question in this case. Indeed, the Court of

Appeals expressly declined to decide that question:

Neither is it necessary for us to decide whether,

viewing Nicklas’ claim as one of retaliation for

exercising the right to petition, his claim must be

premised on a petition involving matters of pub-

lic concern.

(Appendix B, p. 7a)

4

Instead, the Court of Appeals affirmed the dismissal

of Petitioner’s Complaint pursuant to its ruling in favor of

Respondents on their defense of qualified immunity. The

Court of Appeals’ holding was as follows:

We hold that because the law was not clearly es-

tablished at the time, reasonable individuals in

the position of these defendants would not have

known that the actions of which Nicklas now

complains violated his First Amendment right to

petition for redress of grievances.

(Appendix B, p. 8a)

Even Petitioner concedes that this was the basis for the

Court of Appeals’ holding: —

The Court held that the law in the Sixth Circuit

was not sufficiently established to avoid a de-

fense of qualified immunity.

(Petition, p. 5)’

In the Argument portion of his Petition, Petitioner

does not argue that the Court of Appeals for the Sixth

Circuit erred in its ruling on qualified immunity and does

not argue or show that the Court of Appeals’ decision on

* Petitioner argues that the Court of Appeals violated 6th Cir. R.

206(c) in ruling for Respondents on the grounds of qualified immunity

because its finding was contrary to the holding of a previous panel of

that court in Gable, supra. That does not constitute a compelling reason

for this.Court to grant review; rather,.it isan issue to be reconciled by

the Court of Appeals for the Sixth Circuit. Wisniewski v. United States,

353 U.S. 901, 902, 77 S.Ct. 633, 1 L. Ed. 2d 658 (1957). Here, the Sixth

Circuit apparently disagreed with Petitioner’s contention because it

denied his Motion for Rehearing and Suggestion for Rehearing En

Banc.

5

that issue was in conflict with decisions of other Courts of

Appeal (Sup. Ct. R.10(a)) or in conflict with decisions of

this Court (Sup. Ct. R.10(c)).

Petitioner has cited no case in his Petition in which

this Court exercised its discretion to grant review under

these circumstances. Rather, decisions of this Court

indicate that it will not review questions that were not the

basis for the decisions below. See, for example, National

Collegiate Athletic Association v. Smith, 525 U.S. 459, 470,

119 S.Ct. 924, 142 L. Ed. 2d 929 (1999) (“ ... we do not

decide in the first instance issues not decided below.”).

-This Court need go no further to deny the Petition

that is before it. However, the following is provided to

demonstrate that Petitioner’s arguments on the question

that he would like to have reviewed are without merit.

II. PETITIONER HAS NOT SHOWN COMPEL-

LING REASONS FOR REVIEW BY VIRTUE OF

THE DECISIONS IN GABLE OR SAN FILIPPO

A. Gable And San Filippo Are Distinguishable

On Their Facts Because Plaintiff’s Com-

plaint Does Not Even Mention The First

Amendment Or The Petition Clause Of The

First Amendment

Plaintiff’s Petition is based upon his request that this

Court resolve a conflict in decisions of Courts of Appeals.

He relies upon Gable v. Lewis, supra, and San Filippo v.

Bongiovanni, supra. For the reasons that follow, the

rulings in those cases should not cause this Court to grant

his Petition.

6

Petitioner never indicated that he was relying upon

the Petition Clause of the First Amendment to the United

States Constitution until he filed his Brief on Appeal in

the Court of Appeals. Petitioner’s Complaint does not even

mention the First Amendment, let alone the Petition

Clause of that Amendment. This was noted by the district

court judge in his Opinion and Order granting Defendants’

Motion to Dismiss (Appendix C, p. 13a, n.1).

Only when confronted with Respondents’ Motion to

Dismiss in the district court did Petitioner invoke the First

Amendment in his opposing Brief and in doing so he cited

and discussed only cases in which court actions were

considered to be forms of expression, i.e. “speech”, which

was protected by the First Amendment. The district court

then correctly applied the “public concern” test to Peti-

tioner’s so-called expression in the form of his state court

action.’ Subsequently, having become aware of the Sixth

Circuit’s decision in Gable v. Lewis, supra, in the Court of

Appeals Petitioner acted as though he had relied on the

Petition Clause of the First Amendment throughout this

matter. This was simply not so, and due to Petitioner’s

tactics in the courts below, Respondents were literally

shooting at a moving target.

Focusing solely on Petitioner’s Complaint, which

Petitioner argues must be accepted as true, it is clear that

there is no First Amendment claim. Petitioner’s argu-

_ments in his opposing district court Brief and in his Brief |

* In his Petition, Plaintiff does not argue that his state court

defamation action involved a matter of public concern. By failing to

raise that issue in his Petition, he has conceded that it did not involve a

matter of public concern.

7

on Appeal in the Court of Appeals do not constitute the

statement of a claim in a pleading as required by

F.R.Civ.P. 8(a).

The plaintiffs in Gable and San Filippo clearly in-

voked the First Amendment. Petitioner did not. Therefore,

he may not rely upon those decisions.

B. Gable Is Distinguishable On Its Facts Be-

cause Petitioner’s State Court Action Is Not

A “Petition”

The First Amendment provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Government

for a redress of grievances.

Unlike the claimant in Gable, this Petitioner in his state

court action did not “ ... petition the Government for a

redress of grievances”. In Gable, the plaintiff “had filed

with the state agency an official written complaint of sex

discrimination in the allocation of the [highway] patrol’s

automobile towing business” (201 F.3d at p. 770). In her

subsequent action founded upon 42 U.S.C. §1983, the

plaintiff alleged that she was retaliated against for the

filing of that complaint with the state agency.

In his state court action, Petitioner did not petition or

ask the government to do anything and did not ask the

Michigan state court to grant him any equitable relief

regarding any of the terms or conditions of his employment

as a physician employed by the University of Michigan.

8

Rather, he sued three other University employees for

defamation (Petition, pps. 2 and 3).

While Respondents concede that authority exists for

the proposition that court actions can constitute “peti-

tions”, it does not follow that each and every complaint

filed in a civil action constitutes a petition. For example, in

San Filippo v. Bongiovanni, supra, one of the two cases

most heavily relied upon by Petitioner, the Court of Ap-

peals for the Third Circuit defined a “petition” as follows:

... when one files a “petition” one is addressing

government and asking government to fix what,

allegedly, government has broken or failed in its

duty to repair.

30 F.3d at p. 442

In his state court action, Petitioner did not ask the gov-

ernment (or the state court) to fix anything that the

government had allegedly broken nor did he allege that

the government — i.e. the University — had failed in its

duty to repair or rectify any situation relative to his

employment. All he asked for was money damages from co-

employees for defamation.

The plaintiff in San Filippo was a tenured professor at

a university. He alleged that he had been retaliated

against for numerous grievances and lawsuits that he had

instituted, including a state court libel action against

three administrators of the university at which he was

employed (30 F.3d at pps. 427 and 428). The Third Circuit

did not automatically conclude that all of that plaintiff’s

grievances and lawsuits, which included a libel action,

constituted “petitions” entitled to First Amendment

protection but remanded the matter to the district court to

“.. consider which, if any, of San Filippo’s grievances and

9

lawsuits constituted a ‘petition’” (30 F.3d at p. 443).

Therefore, Petitioner’s argument that San Filippo stands

for the proposition that a “petition” is involved whenever a

state court suit has been filed or “other formalized griev-

ance mechanism” has been invoked is clearly wrong.

Petitioner suggests that whenever someone uses a

“formal mechanism ordained by the government”, such as

a court suit, automatically and necessarily a “petition” is

involved. In other words, Petitioner wants any lawsuit

about any subject to constitute a “petition” protected under

the Petition Clause of the First Amendment (Petition, pps.

8 and 14). Petitioner cites no authority to support that

proposition. Nor has he cited any authority for the propo-

sition that a garden variety defamation action, such as his

state court action against individuals, constitutes a “peti-

tion”. In his state court action Petitioner did not ask the

government to fix anything, much less something that

allegedly the “.. . government [had] broken or failed in its

duty to repair” (San Filippo, supra at p. 442). Rather, in

his state court action he merely asked private citizens

comprising the jury panel in that matter to award him

damages for alleged defamation.

Here, a reading of Plaintiff’s Complaint filed in the

state court (attached to his Complaint in this action as

Exhibit D) makes it clear that Plaintiff’s state court action

cannot be deemed to be a “petition”. Accordingly, this is not

an appropriate case in which to review the question

presented by Petitioner.

10

C. Gable Is Distinguishable On Its Facts Be-

cause Petitioner Is A Public Employee

The plaintiff in Gable was a private citizen and,

unlike this Plaintiff, was not employed by a public agency.

This is a critical distinction because in its decision in

Gable, the Court of Appeals majority attempted to distin-

guish Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75

L. Ed. 2d 708 (1983) on the grounds that the Supreme

Court has not “ ... applied the [public] concern test to

citizens who are not governmental employees” (201 F.3d at

p. 771).

The importance of the fact that the plaintiff in Gable

was not a public employee is also highlighted by the fact

that the majority in Gable also sought to distinguish this

Court’s decision in Connick v. Myers, supra, on the follow-

ing grounds:

... the reason for the “public concern” test in

Connick — to maintain order and avoid disrup-

tion in the governmental workplace — does not

apply in this case because the plaintiff was not a

governmental employee subject to the discipline of

a governmental employer. She was simply a citi-

zen offering services to a state agency. Since the

reason for the test is missing in the present case —

maintaining order in the governmental workplace

— the test should not be applied here . . . (empha-

sis added)

(Id. at p. 771)

* * *

... there is no basis in our First Amendment ju-

risprudence for applying Connick’s public con-

cern test to petitioning activity by a private

businesswoman who is simply supplying services

11

to a governmental agency as an independent con-

tractor. (emphasis added)

(Id. at p. 772)

In Gable, the Sixth Circuit made no pronouncement of

general applicability. Its holding was limited to “ ... the

petitioning activity in the instant case.” (Id. at p. 771).

This Petitioner is a public employee and, therefore,

the reason for the “public concern” test does apply and the

rationale for the majority holding in Gable is absent.

This is yet another reason that the Sixth Circuit’s decision

in Gable should not cause this Court to grant the Petition

before it.

D. The Court Of Appeals For The Sixth Circuit

Applies The “Public Concern” Test Where

Public Employees Have Complained Of Re-

taliation For Having Filed Petitions

Since the plaintiff in Gable was a private citizen, not a

public employee like this Petitioner, the majority did not

decide the question presented by Petitioner for review and

its discussion of the applicability of the public concern test

to petitions filed by public employees‘ is mere obiter

dictum. It is also incorrect. Where petitions have been

filed by public employees, the rule in the Sixth Circuit is

consistent with that in seven other Circuits as will be

discussed infra.

* «|. . we find no authority in the Sixth Circuit limiting petitioning

activity by public employees to matters of ‘public concern’...” Gable,

supra at p. 771.

12

In those cases where a public employee has com-

plained of retaliation on account of having filed a “peti-

tion”, the Court of Appeals for the Sixth Circuit has

applied the “public concern” test. In Rice v. Ohio Depart-

ment of Transportation, 887 F.2d 716 (6th. Cir. 1989),

vacated on other grounds, 497 U.S. 1001, 110 S.Ct. 3232,

111 L. Ed. 2d 744 (1990), the plaintiff was an employee of

the Ohio Department of Transportation who filed a reverse

discrimination charge against the Department with the

Ohio Civil Rights Commission. He then filed an action

under 42 U.S.C. §1983, alleging that a decision not to

promote him was taken partly in retaliation for his filing

of that claim which constituted a violation of the First

Amendment. In Rice, which was a public employee case,

the Court of Appeals noted that the “threshold question”

was whether a matter of “public concern” was involved,

citing Connick v. Myers, supra (887 F.2d at p. 720) and also

observed that “not every job related grievance of a public

employee is a matter of public concern” (Id.). The majority

opinion in Gable does not discuss or distinguish Rice.

In its opinion in San Filippo v. Bongiovanni, supra,

the Court of Appeals for the Third Circuit even cited the

Sixth Circuit’s decision in Rice, supra, when it listed the

decisions of other Circuit Courts of Appeal that had held

that complaints, grievances, etc. filed by public employees

were not entitled to the protection of the Petition Clause of

the First Amendment unless they were addressed to

matters of “public concern”.

The plaintiffs in Valot v. Southeast Local School

District Board of Education, 107 F.3d 1220 (6th Cir. 1997)

were bus drivers employed by a school district. They filed an

action against the school district alleging that they had been

retaliated against in violation of their First Amendment

13

right to petition for the redress of grievances because they

had filed claims for unemployment compensation benefits.

The district court granted the school district summary

judgment, and the Court of Appeals for the Sixth Circuit

affirmed. In his opinion, Judge Engel concluded that:

A cause of action for violation of the Petition

Clause is subject to the same analysis applied to

a claim arising under the Speech Clause. [cita-

tions omitted].

* * *

Specifically, the right to petition is limited to

matters of public concern. [citations omitted].

107 F.3d at p. 1226

Notably, Judge Engel cited for these propositions decisions

of seven other Circuit Courts of Appeals. Judge Ryan

concurred in the result arrived at by Judge Engel but

found it unnecessary to apply the “public concern” test

because he concluded that the plaintiffs’ applications for

unemployment compensation were “ ... simply not a

‘petition ... for a redress of grievances’ under the First

Amendment” (107 F.3d at p. 1232).

In Perry v. McGinnis, 209 F.3d 597 (6th Cir. 2000),

which was decided by the Court of Appeals for the Sixth

Circuit after its decision in Gable v. Lewis, the plaintiff

had been employed by the Michigan Department of Cor-

rections. The plaintiff alleged that during his employment

he pursued an internal grievance alleging that he was

disciplined because of his race and that he was further

disciplined and then terminated in part in retaliation for

those complaints. The Court of Appeals stated as follows:

14

The Pickering test applied in part ITI(A) of this

opinion governs this analysis as well.

209 F.3d at p. 608

This was a reference to the threshold determination of

whether the grievance involved a matter of “public con-

cern” (209 F.3d at p. 604). Notably, Mr. Perry — like the

Petitioner — was a public employee and the Sixth Circuit

Panel in Perry v. McGinnis did not cite or follow Gable,

which involved a private individual.

E. The Decision In San Filippo Is Incorrect

1. This Court Has Stated That The Free

Speech And Petition Clauses Should Be

Analyzed In The Same Way

Petitioner argued in the Court of Appeals, without the

citation to any authority, that the right to petition the

Government must be analyzed separately and independ-

ently from the right of free speech because of the punctua-

tion of the First Amendment: the Free Speech Clause is

separated from the Petition Clause by a semi-colon (Peti-

tioner’s Brief on Appeal, p. 16). If the First Amendment is

interpreted and analyzed as Petitioner suggested in the

Court of Appeals, then the concluding Petition Clause

becomes completely nonsensical because standing alone it

contains no language prohibiting Congress from doing

anything.

The Sixth Circuit’s majority opinion in Gable, supra,

states: “... the petition clause is analytically distinct from,

although related to, the free speech clause ... ” (201 F.3d at

p. 771). Petitioner and the majority in Gable both have

disregarded this Court’s pronouncement in McDonald v.

15

Smith, 472 U.S. 479, 105 S.Ct. 2787, 86 L. Ed. 2d 384-7

(1985). The issue in McDonald was whether the Petition

Clause of the First Amendment provided absolute immu-

nity from an alleged libelous statement although it was

well established that the Free Speech Clause of the First

Amendment did not afford absolute immunity from such a

statement. This Court rejected the attempt to separate the

analysis of the Free Speech and Petition Clauses of the

First Amendment:

The First Amendment guarantees “the right of

the people ... to petition the Government for a

redress of grievances.” The right to petition is cut

from the same cloth as the other guarantees of

that Amendment, and is an assurance of a par-

ticular freedom of expression. In United States v.

Cruikshank, 2 Otto 542, 92 U.S. 542, 23 L. Ed.

588 (1876), the Court declared that this right is

implicit in “(t]he very idea of government, repub-

lican in form.” Id., at 522. And James Madison

made clear in the congressional debate on the

proposed amendment that people “may commu-

nicate their will” through direct petitions to the

legislature and government officials. 1 Annals of

Cong. 738 (1789).

472 U.S. at p. 482

* * *

To accept petitioner’s claim of absolute immunity

would elevate the Petition Clause to special First

Amendment status. The Petition Clause, how-

ever, was inspired by the same ideals of liberty

and democracy that gave us the freedoms to

speak, publish, and assemble. See Mine Workers

v. Illinois Bar Assn., 389 U.S. 217, 222, 88 S.Ct.

353, 356, 19 L. Ed. 2d 426 (1967). These First

16

Amendment rights are inseparable, Thomas v.

Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89

L. Ed. 430 (1945), and there is no sound basis for

granting greater constitutional protection to

statements made in a petition to the President

than other First Amendment expressions.

. 472 US. at p. 485

Similarly, in Wayte v. United States, 470 U.S. 598, 105

S.Ct. 1524, 84 L. Ed. 2d 547 (1985), this Court observed:

Although the right to petition and the right to

free speech are separate guarantees, they are re-

lated and generally subject to the same constitu-

tional analysis [citation omitted].

470 USS. at p. 611, n.11

Therefore, the Free Speech and Petition Clauses of the

First Amendment are not to be analyzed separately;

instead, this Court has made it is clear that they are to be

analyzed in the same way. Accordingly, it is completely

incorrect to argue that the “public concern” test estab-

lished by this Court in Connick — which is indisputably

applicable to an analysis of 42 U.S.C. §1983 claims

founded upon the Free Speech Clause of the First

Amendment — should not also be applied to claims brought

pursuant to that statute but founded upon the Petition

Clause of the First Amendment.

2. Seven Other Circuits Have Decided The

Same Issue Differently Than The Third

Circuit

Besides the fact that decisions of this Court establish

that San Filippo was incorrectly decided, the Third Cir-

cuit’s decision is also directly at odds with holdings of

17

seven other Circuit Courts of Appeals which have con-

cluded that the “public concern” test is applicable to the

Petition Clause of the First Amendment just as it is

applicable to the Free Speech Clause of the First Amend-

ment. The Circuit Courts of Appeals for the Second, Fifth,

Seventh, Eighth, Ninth, Tenth and Eleventh Circuits have

decided the issue differently than San Filippo. See White

Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2nd

Cir. 1993); Rathjen v. Litchfield, 878 F.2d 836, 841 (5th Cir.

1989); Belk v. Town of Minocqua, 858 F.2d 1258, 1261-1262

(7th Cir. 1988); Hoffman v. Mayor, Councilmen and Citi-

zens of the City of Liberty, 905 F.2d 229, 232-233 (8th Cir.

1990); Rendish v. City of Tacoma, 123 F.3d 1216, 1220-

1223 (9th Cir. 1997), cert. den., 524 U.S. 952, 118 S.Ct.

2368, 141 L. Ed. 2d 737 (1998); Martin v. City of Del City,

179 F.3d 882, 889 (10th Cir. 1999); and Grigley v. City of

Atlanta, 136 F.3d 752, 755-756 (11th Cir. 1998), cert. den.,

525 U.S. 819, 119 S.Ct. 59, 142 L. Ed. 2d 47 (1998). In his

Petition the Petitioner concedes this overwhelming au-

thority contra to the position that he advocates (Petition,

pps. 6 and 7). In each of these decisions (except Rathjen)

this Court’s discussion in McDonald v. Smith, supra, was

cited as part of the rationale for the decision. And, in each

of these cases that was decided after the Third Circuit’s

decision in San Filippo, the Courts of Appeals discussed

and then expressly declined to adopt the reasoning of the

Third Circuit. See Martin, supra, at pps. 888-889; Rend-

ish, supra at p. 1223; and Grigley, supra n.3 at p. 754. In

all but one of those decisions (White Plains Towing Corp.,

supra) the plaintiffs were, like this Plaintiff, current or

former public employees or officials.

18

In its decision in Rendish, supra, the Ninth Circuit

explained succinctly why the Third Circuit’s decision in

San Filippo should not be followed:

We respectfully disagree with the Third Circuit’s

analysis. First, it diverges from the Supreme

Court’s teachings that the primary function of

the First Amendment is to facilitate participation

in a free political process and that the First

Amendment extends its guarantees to public

employees in order to encourage such participa-

tion. Moreover, it equates the government’s con-

duct as employer with its conduct as government.

When government as employer disciplines an

employee for pursuing litigation, it does not act

as “the very government” which established the

mechanism for redress in accordance with its

constitutional obligation, but rather in its role as

an employer.

123 F.3d at p. 1223

Gable, on the other hand, involved a claim by a

private citizen, not by a public employee. Thus, it is not in

conflict with the decisions of the seven other Circuit

Courts of Appeals cited above. This Court need not grant

the Petition before it for the purported purpose of resolv-

ing a conflict between the Sixth Circuit and these seven

other Circuits because no such conflict exists. See Rice,

supra; Valot, supra; and Perry, supra.

It is significant that in three of the Court of Appeals

decisions that Petitioner concedes have decided the ques-

tion that he would like to have reviewed against him, this

Court denied review. They were Gray v. Lacke, 885 F.2d

399 (7th Cir. 1989), cert. den., 494 U.S. 1029, 110 S.Ct.

1476, 108 L. Ed. 2d 613 (1990), Grigley, supra and Rendish,

19

supra (Petition, pps. 6 and 7). This Court has had the

opportunity in the past to review the question that Peti-

tioner would now like it to review but has declined to do

so. Certainly, Petitioner has presented no compelling

reasons for this Court to grant review in the circumstances

present here.

Nor should this Court grant the Petition in this case

in order to reverse the precedent in the Third Circuit

resulting from the decision in San Filippo. That decision

represents a lone voice in the wilderness and the other

Courts of Appeals to have considered the question pre-

sented for review have decided it correctly. Also, as shown,

Petitioner did not plead the First Amendment and his

state court action was not a petition. Therefore, the facts

make this a completely inappropriate case in which to

consider the question presented by Petitioner. If this Court

is inclined to bring the Third Circuit into conformity with

the other Circuits, this is clearly not the case to use.

Il. PETITIONER HAS NOT SHOWN COMPEL-

LING REASONS FOR REVIEW BY HIS RELI-

ANCE UPON THE OTHER CASES CITED IN

HIS PETITION

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) is

effectively distinguished by Petitioner himself in his

Petition (at p. 8): the decision is addressed to the rights of

prisoners, not public employees. In Thaddeus-X, the issue

was “... what are the First Amendment Rights retained

by prisoners?” (175 F.3d at p. 391). The Sixth Circuit’s

holding was very narrow (“We hold only that there is no

authority for subjecting a prisoner’s constitutional right to

access to the courts ... to the public concern limitation

described in Connick v. Myers”.) (Id. at p. 392). The Court

20

of Appeals for the Sixth Circuit contrasted the differences

in the relationships between an inmate and the govern-

ment as a jailor with those of a public employee and the

government as an employer (Jd. at pps. 392-393). The

Court of Appeals also noted that to obtain standing to sue

a prisoner must allege a personal injury committed

against him and that imposition of the “public concern”

limitation would eliminate all prisoner suits protected by

the First Amendment right of access to the courts (Jd. at

p. 392). Petitioner completely overlooks the statement in

Thaddeus-X that in the Sixth Circuit causes of action

alleging the violation of the Petition Clause of the First

Amendment are subject to the same analysis as actions

founded upon the Free Speech Clause, i.e. the “public

concern test” applies (Jd. at p. 390, n.6).

The other cases relied upon by Petitioner in his

Petition (at p. 9) are also easily distinguishable. N.A.A.C.P.

v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L. Ed. 2d 405

(1962) does not address the question that Petitioner wants

reviewed. In Button, this Court concluded that litigation

instituted by the N.A.A.C.P. is protected by the First

Amendment because it constitutes a form of political

expression and involves the right of political association

(371 U.S. at pps. 429-431). None of those interests are

involved here.

Vasquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995) is

inapplicable. Vasquez is a decision of the Seventh Circuit.

Petitioner concedes that in the Seventh Circuit the ques-

tion that he would like reviewed has been decided against

the position that he advocates by Gray v. Lacke, supra

(Petition, p. 6). See also Belk v. Town of Minocqua, supra.

Further, Vasquez involved a claim of denial of access to the

courts; the claim was made that a “conspiracy of silence”

21

by police officers impeded the plaintiffs in attempting to

file a civil action since important facts about a crime were

deliberately concealed. A claim of retaliation for having

brought a prior action was not involved. Ultimately in

Vasquez, summary judgment was granted for the defen-

dants because the plaintiffs made no allegations that they

were prevented from pursing their state court action or

that the value of that action was reduced by the cover-up.

60 F.3d at p. 329. Likewise, no such claim is made here by

Petitioner regarding his state court action.

Haynesworth v. Miller, 820 F.2d 1245 (D.C. Cir. 1987)

did not involve alleged retaliation against someone for

having filed a court action but rather involved an alleged

retaliatory prosecution because the plaintiff refused to

release civil claims. Like Vasquez, Haynesworth also

involved an attempt to impede access to the courts and is

inapplicable here because it did not involve the question

that Petitioner wants reviewed. In Haynesworth, the prior

action sought to challenge “official misconduct” (820 F 2d

at p. 1255) which is not the subject of this Petitioner’s

state court action for defamation. Also, the First Amend-

ment claim was not truly contested in Haynesworth since

the appellees did not dispute the plaintiff’s contention

that “ ... dismissal of criminal charges cannot constitu-

tionally be predicated upon the putative defendant’s

willingness to release civil claims against public servants

‘as oe

Bank of Jackson County v. Cherry, 980 F.2d 1362

(11th Cir. 1993), cert. den., 510 U.S. 819, 114 S.Ct. 73, 126

L. Ed. 2d 42 (1993) is also easily distinguishable. First,

that is a decision of the Eleventh Circuit and plaintiff

concedes in his Petition that the precise issue that he asks

this Court to review has been decided against him in the

22

Eleventh Circuit by Grigley v. City of Atlanta, supra

(Petition, p.6). Further, the First Amendment issue

involved in Bank of Jackson County was decided for the

defendants on qualified immunity grounds (980 F.2d at

p. 1370), which was the basis for the decision of the Sixth

Circuit here, and the Court of Appeals for the Eleventh

Circuit noted that the connection between the defendants’

actions and the plaintiff’s First Amendment Rights was

“tenuous at best” (Id.). In Bank of Jackson County, the

defendants’ conduct did not dissuade the plaintiff from

fully litigating its position in other litigation and, likewise,

here the Petitioner has not argued that Respondents have

done anything to impede the filing or prosecution of his

state court defamation action.

Northern Pennsylvania Legal Services, Inc. v. County

of Lackawanna, 513 F.Supp. 678 (M.D. Pa. 1981) involves

retaliation for engaging in litigation that was arguably

protected expression. The underlying litigation which

allegedly invoked retaliation consisted of suits on behalf of

prisoners challenging alleged constitutional violations and

an appeal of the decision by which parental rights of

indigents were terminated (513 F.Supp. at p. 681). The

district court noted that litigation was a form of expression

protected by the First Amendment, i.e. the district court

decided the case in reliance upon the Free Speech Clause

of the First Amendment, not the Petition Clause.

Westchester Legal Services, Inc. v. County of West-

chester, 607 F.Supp. 1379 (S.D. N.Y. 1985) is distinguish-

able for several reasons. First, it was decided in the

Second Circuit, a Circuit in which Petitioner also concedes

in his Petition that the very issue that he would like this

Court to review has been decided against him by White

Plains Towing Club v Patterson, supra (Petition, p. 6).

y

|

'

23

Second, like Northern Pennsylvania Legal Services, supra,

Westchester Legal Services involved alleged retaliation for

engaging in litigation that was arguably protected political

expression. Westchester Legal Services also involved claims

of indigent clients to secure their legal rights and the

district court specifically found that the non-profit plaintiff

“engages in litigation as a vehicle for effective political

expression and association, as well as a means of commu-

nicating useful information to the public” (607 F.Supp. at

p. 1882). Like Northern Pennsylvania Legal Services,

supra, its focus is upon the Free Speech Clause of the First

Amendment. Westchester Legal Services did not involve

alleged retaliation for seeking redress for purely private

matters in a defamation action and is of no utility to

Petitioner.

Petitioner suggests that all the cases he has cited

support the argument that the right to pursue an action

for remedies in a court “.. . is a form of ‘petition’” which is

protected by the First Amendment (Petition, p. 9). As has

been shown, the cases cited by Petitioner do involve that

question or support that argument.

¢

24

CONCLUSION AND RELIEF

For all of these reasons, Respondents request that the

Petition be denied.

Respectfully submitted,

KASIBORSKI, RONAYNE & FLASKA BUTZEL LONG

A PROFESSIONAL CORPORATION Donaty B. Mirire

CHESTER E. KASIBORSKI, JR. (P23419)

(P15728) Counsel of Record

JOHN J. RONAYNE, III (P23519) 150 W. Jefferson Avenue

1900 Buhl Building Suite 900

535 Griswold Detroit, Michigan 48226

Detroit, Michigan 48226-3686 (313) 225-7020

(313) 961-1900

Counsel for Respondents

DATED: February 3, 2003