# Opposition Brief — Nicklas v. Eagle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 907

## Text

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).

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|
'

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0964%3A2. Public record. Not legal advice.