Petition for Writ of Certiorari — Yeager v. City of McGregor

I i

(92- et

ose Co U.S.

- MAY 10 1993

In The a Jr THE K

sie t

SUPREME COURT OF THE UNITED STATES

October Term, 1992

FRANKLIN YEAGER, WALTER BRANDT,

DON C. YEAGER, and MARK YEAGER,

Petitioners,

Wi

CITY OF McGREGOR, McGREGOR

VOLUNTEER FIRE DEPARTMENT and

TOM KIRK,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

R. John Cullar

Counsel of Record

Mills, Millar, Matkin & Cullar

1105 Wooded Acres, Suite 130

Waco, Texas 76710

(817) 776-199]

Counsel for Petitioners

QUESTIONS PRESENTED

l. Is the provision of fire protection to the

citizens and property within a municipality a traditionally

exclusive governmental function so that the entity

providing such function is a state actor for purposes of

42 USC §1983?

2. Can a municipality abdicate its traditional

governmental function to provide fire protection to its

citizens thereby insulating the municipality and the entity

to which such function was abdicated from liability under

42 USC $1983?

3. Is a municipality liable for the

constitutional torts of those to whom it has delegated the

performance of its traditionally exclusive governmental

functions, such as providing fire protection to the citizens

and property within its limits?

TABLE OF CONTENTS

Page

CUES TILING Peecesss CAPs 6 0.0 05s aes ee ee eee i

TABLE OF AUTHORITIBS. .00ise08 ss seeken iv

OPENS BELAIW on os vaste ess enews 2

FUER Ls ose ensbakes sb 6au eee eae eee 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. «0.5 <sseeeeees au 4

SLATEMENT OF THE CASE. 4 viscsseneee aun 5

REASONS WHY CERTIORARI

SOULE Be GRANTED... 6 c0ss saseedeeen 12

I. | Review is warranted because the Fifth

Circuit’s January 5, 1993 opinion is in

conflict with opinions of this Court, the

Fifth Circuit, and the Courts of Texas, and

is in further conflict with the

determination of the Texas Legislature,

concerning whether the provision of fire

protection within the limits of a

municipality is a traditionally exclusive

governmental function for purposes of

State actor analysis under 42USC

$I9GS . 0. weakens eee 12

Review is warranted because the Fifth

Circuit’s opinion impermissibly allows

a municipality to abdicate its

traditionally exclusive governmental

functions to "private entities," thus

allowing the municipality and the

"private entity" to escape liability for the

constitutional torts of the "private

ee 14

eek e esha cece vr eeseeeces 16

iV

TABLE OF AUTHORITIES

Page

Cases

City of Coleman v. Rhone, 222 SW2d 646

(Tex.Civ.App. - Eastland, 1949, no writ)... 14

City of Crosbyton v. Texas New Mexico Utilities,

157 SW2d 418 (Tex.Civ.App. - Amarillo,

ae FY fer ee er er errs 1S

City of Houston v. Southwest Concrete

Construction, Inc., 835 SW2d 728 (Tex.App.

- Houston [14th Dist.] 1992, no writ)..... 14

City of McAllen v. Morris, 217 SW2d 875

(Tex.Civ.App. - San Antonio, 1948,

OUTS se 56S 6 che haen es Awe 14,16

Dennis v. Sparks, 449 U.S. 24, 101 S.Ct.

Pe CO 64 0k ow Re Ree 6

Evans v. Newton, 382 U.S. 296, 86 S.Ct.

SO RTT S on ene a Oe ee 1S

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149,

SG BAN. 1729 (IGG s 4 v6 560s eee eae 13

Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528, 105 S.Ct.

1005 (1985) (Powell, J. dissenting)....... 13

Page

Garcia v. San Antonio Metropolitan Transit

Authority, 838 F.2d 1411 (Sth Cir. 1988).. = 13

Genzer v. City of Mission, 666 SW2d 116

(Tex.Civ.App. - Corpus Christi, 1983,

kos 8 eee TT ee TT TT eT eee ee 14, 16

Jackson v. Metropolitan Edison Company, 419 U.S.

345, F5-SAA. S09, 453 CIFTS) a oc eee ens 6

Janusaitis v. Middlebury Volunteer Fire Department,

COT F.20 17 Cie Ce, ISTE) sk ec ee ess 16

National League of Cities v. Usery, 426 U.S. 833,

FO SAX. BAGS (IGS). 0 csc cc ccnnwccns 13

Peel v. Florida Department of Transportation,

600 F.2d 1070 (Sth Cir. 1979)......... 13

Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct.

RPE ATE CEE SAN RAS KROSS RO 6, 13

San Antonio Metropolitan Transit Authority v.

McLaughlin, 876 F.2d 441 (Sth Cir. 1989)..... 13

Shelton v. City of College Station, 754 F.2d 1251

CG, Ps ka cena ke sneeweds 15

Wilcox v. Terrytown Fifth District Volunteer Fire

Department, Inc., 897 F.2d 765 (Sth Cir.

ie) MEESTER SET CLEC CCT ECOL Ee Ee 13

vi

Page

CONSTITUTION, STATUTES & REGULATIONS

United States Constitution, First Amendment... . 2

United States Constitution, Fourteenth

rN oe ede 6 ee hla ee eS 3

ce ee ae ks Gk 6 ook oe ee BN 2

te geek bbe eek ea eke es 2

Eb eet ee eee eneeneene 2,3,12,14

VTCA, Texas Civil Practice & Remedies

EE ce koe wb ee se 60004 14

VTCA, Texas Civil Practice & Remedies

a ae 14

Oe toe FOF D1, ADDENGIX. 6... ccc cc sevesecs 1S

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

FRANKLIN YEAGER, WALTER BRANDT,

DON C. YEAGER, and MARK YEAGER,

Petitioners,

Vv.

CITY OF McGREGOR, McGREGOR

VOLUNTEER FIRE DEPARTMENT and

TOM KIRK,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Petitioners Franklin Yeager, Walter Brandt, Don

C. Yeager, and Mark Yeager, respectfully pray that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit, entered in the above proceeding on

January 5, 1993.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Fifth Circuit is reported at 980 F.2d 337

and is reprinted as Appendix A. The memorandum

order of the District court was unreported; it is reprinted

as Appendix B.

JURISDICTION

Invoking federal jurisdiction under 42 USC $1983,

petitioners brought suit on November 19, 1990 against

respondents in the United States District Court for the

Western District of Texas. On September 26, 1991, the

district court granted respondents’ motions for summary

judgment. Petitioners appealed the district court’s order

and judgment to the United States Court of Appeals for

the Fifth Circuit, pursuant to 28 USC §1291.

The decision of the Court of Appeals was entered

on January 5, 1993. A timely petition for rehearing was

denied on February 8, 1993. See Appendix C.

The jurisdiction of this Court is invoked under 28

USC §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l. The First Amendment to the United States

Constitute provides, in relevant part:

Congress shall make no law...abridging

the freedom of speech....

ps The Fourteenth Amendment to the United

States Constitution provides, in relevant part:

Section 1. ..No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction, the

equal protection of the laws.

S 42 USC $1983 provides, in relevant part:

Every person who, under color of any

Statute, ordinance, regulation, custom, or

usage, of any State... subjects, or causes to

be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws, shall

be liable to the party injured in an action

at law, suit in equity, or other proper

proceeding for redress.

STATEMENT OF THE CASE

a. The Action Below

At issue in this case is whether the provision of

fire protection to the citizens and property within a

municipality is a traditionally exclusive governmental

function. If so, then it must follow that the entity to

which such function has been delegated by the

municipality is a state actor for purposes of 42 USC

$1983.

Petitioners’ complaint in the district court alleged

that respondents City of McGregor ("City") and the

McGregor Volunteer Fire Department ("MVFD")

violated 42 USC §1983 by discharging petitioners from

the MVFD because of petitioners’ exercise of their First

Amendment right of free speech. Petitioners further

alleged that Kirk, in his individual capacity, had

conspired with the president and fire chief of the

MVFD, state actors, to violate petitioners’ First

Amendment rights. The MVFD provided the exclusive

fire protection service to the citizens of the City of

McGregor.

This Court, the Court of Appeals for the Fifth

Circuit, the courts of Texas, and the Texas Legislature

have all previously concluded that providing fire

protection is a traditionally exclusive governmental

function within the limits of municipalities. Yet,

inexplicably, the opinion of the Fifth Circuit panel

hearing this case found the hearsay contained in the New

York Times, The Washington Times and Forbes magazine

to be of greater precedential value than the prior

declarations of the Supreme Court of the United States,'

ultimately concluding that, since providing fire protection

within a municipality was not a traditionally exclusive

governmental function, the MVFD was not a state actor

' See Appendix A, pages 9-11.

ia

an

for purposes of 42 USC $1983. Consequently, in the

absence of a state actor, the panel concluded that no

$1983 claim could exist against either the City of the

MVFD and that, without state actors to conspire with,

Kirk had no liability.

Prior to the opinion of the Fifth Circuit panel,

respondents had never raised the issue that providing

fire protection was not a _ traditionally exclusive

governmental function. The district court did not reach

its decision in this case based on such an assertion. The

briefs in the Court of Appeals and district court are

devoid of any suggestion that providing fire protection is

not a traditionally exclusive governmental function. Not

one word was spoken at oral argument by counsel for

the parties or by members of the panel that would

indicate that the question of whether providing fire

protection is a traditionally exclusive governmental

function was an issue in this case.

The district court, in granting respondents’

respective motions for summary judgment, concluded

that petitioners’ public comments concerning racially

discriminatory practices by and the financial affairs of

the MVFD were matters of public concern. The district

court also concluded, "without deciding,” that the MVFD

was a State actor. However, the district court granted

respondents’ motions for summary judgment on the

following bases:

(1) City : granted on the basis that

petitioners failed to show that City

had exercised coercive power or

significant encouragement over

(2)

MVFD’s decision to terminate

petitioners, ignoring the public

function test expressed in Jackson

v. Metropolitan Edison Company

419 US. 345, 95 S.Ct. 449, 453

(1974) and Rendel!l-Baker v. Kohn

457 U.S. 830, 102 S.Ct. 2764, 2772

(1982);

MVED : granted on the basis that

the "Court does not believe the

(petitioners) were dismissed for

exercising their constitutional

rights," ignoring the testimony of

the MVFD president who testified

that petitioners were terminated

because of such speech; and

Tom Kirk : granted on the basis of

the district court wrongly

concluding that, without the

presence in the litigation of the

individual state actors who were

alleged to have conspired with him,

petitioners could not succeed

against Kirk in_ his individual

capacity, in direct contradiction of

Dennis v. Sparks, 449 U.S. 24, 101

S.Ct. 183 (1980).

After briefing and oral argument were concluded

in the Court of Appeals, it was apparent that

respondents’ favorable judgments were in jeopardy.

Consequently, in order to salvage the outcome desired

= mem

by the appellate panel, a whole new theory was

concocted: providing fire protection to the inhabitants

and property of a city was, for the first time, determined

not to be a traditionally exclusive governmental function.

Based on this new-found and pronounced statement, the

Court of Appeals affirmed the judgment of the district

court because "(w)here there is no state actor, no section

1983 constitutional claim exists."

B. Statement of Facts

Since approximately 1928, City has delegated its

governmental responsibility to provide fire protection for

its citizens to the MVFD. (Record, Vol. 4, Exhibit "1"

to Plaintiffs’ Response to Defendants, John Blake,

Ronnie Moe Spradley, and the McGregor Volunteer

Fire Department’s Motion for Summary Judgment). ”

Such delegation of governmental authority continued

until and after December 1, 1988. (Record, Voi. 4,

Exhibit "1").

From 1928 through and after December 1, 1988,

City, through a cooperative agreement with MVFD,

provided the MVFD with a building, fire trucks, and

> Volume 4 of the Record consists of the Motion for

Summary Judgment of Blake, Spradley and Fire

Department, the Brief in Support Thereof, and

petitioners’ Response thereto; however, the pages of

Volume 4 are not numbered. Therefore, in reciting the

tacts herein, petitioners’ record references will be to the

Exhibits attached to said Response, except as otherwise

noted.

equipment to fight fires within the limits of the City.

(Record, Vol. 4, Exhibit "1"). City annually budgeted tax

dollars to the MVFD, and, in addition, as of December

1, 1988, paid the members of the MVFD $300 per year

and made regular contributions on behalf of each

member of the MVFD to a state pension program.

(Record, Vol. 4, Exhibit "1").

On August 19, 1965, City approved the

Constitution and Bylaws of the MVFD. (Record, Vol.

4, Exhibit "2"). Such Constitution and Bylaws vested

final control over the membership and members of the

MVFD in the MVFD. (Record, Vol. 4, Exhibit "2"). By

adoption of their Home Rule Charter, the citizens of

McGregor adopted, validated, confirmed and ratified the

previous actions of the City relative to the MVFD.

(Record, Vol. 4, Exhibit "3").

City retained the right to approve the Fire Chief

and Chief Engineer of the MVFD. City also retained

the right to approve the Constitution and Bylaws of the

MVFD, and any amendments thereto, before they could

become effective. (Record, Vol. 4, Exhibit "2"). The

members of the MVFD generally, and the Chief and

Fire Marshall specifically, have been designated as the

ones to enforce all provisions of the Fire Prevention and

Protection Chapter of the City Code. (Record, Vol. 4,

Exhibit "4"). The McGregor City Council annually

budgeted tax dollars to the MVFD. (Record, Vol. 4,

Exhibit "8").

In late September or early October of 1988,

Jonathan R. Smith, an African-American male, sought

membership in the MVFD. Mr. Smith was given an

application card which required the applicant to certify

that he was "a white male, twenty-one years of age."

Because of such requirement, Mr. Smith did not submit

the card for consideration. (Record, Vol. 4, Exhibit

"1 1"). Prior to petitioners’ termination from the MVFD,

the MVFD had never had an African-American among

its membership.

On November 19, 1988, Franklin Yeager, Walter

Brandt, and Don C. Yeager told a newspaper reporter

that the membership application of the MVFD required

applicants to certify that each applicant was "a white

male, twenty-one years of age and of good moral

character." Said petitioners also advised the reporter of

numerous acts of racial discrimination by the MVFD.

(Record, Vol. 4, Exhibit "S", p. 56, line 13 - p. 59, line

18). On November 20, 1988, the Waco Tribune-Herald

reported petitioners’ allegations of racial discrimination

against the MVFD. (Record, Vol. 4, Exhibit "6").

After November 20, 1988, but prior to December

1, 1988, Blake and Spradley had both advised petitioners

that Kirk, a prominent citizen of the City of McGregor,

wanted petitioners out of the MVFD and that Kirk

would see that petitioners were removed from the

MVED if petitioners did not keep quiet concerning the

allegations of racially discriminatory practices in the

* Kirk was a member of the McGregor City Council, and

owned the Ford automobile dealership and a restaurant

in McGregor.

10

MVED. (Record, Vol. 1, p. 582, line 18 - p. 581, line 13;

Record, Vol. 1, p. 592, line 3 - p. 587, line 14; Record,

Vol. 1, p. 582, line 18 - p. 579, line 7; and Record, Vol.

1, p. 574, line 2 - p. 572, line 17).

Kirk thought the November 20, 1988, Waco

Tribune-Herald article in which petitioners pointed out

racially discriminatory acts of the MVFD "was perhaps

a disgusting bit of information to be presented through

the press." (Record, Vol. 1, p. 562, lines 1 - 24). Kirk

also thought that the information in said newspaper

article "did not do McGregor’s image any good to have

this type publicity circulated on television and in the

daily newspaper." (Record, Vol. 1, p. 556, line 1 - p.

555, line 4).

Prior to December 1, 1988, petitioners became

aware of possible irregularities concerning the finances

of the MVFD. On December 1, 1988, petitioners raised

this issue at a public meeting of the McGregor City

Council, and an audit of the MVFD was ordered.

Members of the MVFD were present at the city council

meeting and heard the statements of petitioners.

(Record, Vol. 4, Exhibit "1"; and Exhibit "10", p. 55, lines

1 - 23).

On December 1, 1988, immediately after

petitioners had advised the McGregor City council of

potential irregularities in the MVFD, and immediately

before petitioners were voted out of the MVFD, Kirk

told Blake and Spradley that he, Kirk, wanted "them out

of the fire department.” (Record, Vol. 1, pp. 568 - 567).

After the adjournment of the City Council

meeting on December 1, 1988, members of the MVFD

convened for a meeting which was specially called at the

conclusion of the City Council meeting. It was at this

meeting that petitioners were "dismissed because they

have disgraced the department by their actions."

(Record, Vol. 4, Exhibit '"7"). According to the president

of the MVFD, a substantial or motivating factor in

petitioners’ dismissal was that they made_ public

Statements concerning racially discriminatory practices in

the MVFD and public statements concerning the

finances/financial affairs of the MVFD. (Record, Vol.

4, Exhibit "10," p. 28, line 11 p. 30, line 18; and Exhibit

"9," p. 101, line 13 p. 102, line 15).

On the morning of December 2, 1988, before they

had been advised that they were terminated from the

MVFD, petitioners Don Yeager and Walter Brandt

fought a house fire side-by-side with other members of

not disruptive of the efforts of the MVFD to extinguish

said fire. (Record, Vol. 4, Exhibit "9", p. 105, lines 13 -

19, and p. 109 lines 1 - 23). The president and chief of

the MVFD, Spradley and Blake respectively, testified

that petitioners were not disruptive of the operations of

the MVFD. (Record, Vol. 4, Exhibit "9", p. 94, line 22

p. 96, line 1 and p. 101, line 13 p. 120, line 6; and

Exhibit "12", p. 59, line 2 p. 63, line 259 and p. 93, lines

1 - 17; see, also, Exhibit "14", p. 14, line 16 p. 19, line 6).

Petitioners were not actively seeking to replace the chief

of the MVFD; such efforts were being led by the

president of the MVFD, Spradley, and others. (Record,

Vol. 4, Exhibit "9", p. 40, line 2 - p. 41, line 24; and

Exhibit "13", p. 25, line 19 - p. 27, line 21).

12

REASONS WHY CERTIORARI

SHOULD BE GRANTED

Review is warranted because the Fifth

Circuit’s January 5, 1993 opinion is in

conflict with opinions of this Court, the

Fifth Circuit, and the Courts of Texas,

and is in further conflict with the

determination of the Texas Legislature,

concerning whether the provision of fire

protection within the limits of a

municipality is a traditionally exclusive

governmental function for purposes of

state actor analysis under 42 USC §1983.

In all likelihood, the opinion of the Fifth Circuit

panel in this case marks the first time in_ the

jurisprudential history of the United States that a United

States Court of Appeals has found the hearsay contained

in the New York Times, The Washington Times, and

Forbes magazine to be of greater precedential value than

the proclamations of the United States Supreme Court.’

This Court has consistently recognized that providing fire

protection within a municipality is among the activities

* See Appendix A, pages 6-11.

that traditionally epitomize the concerns of local,

democratic self-government.”

The opinion of the Fifth Circuit panel ignores and

conflicts with previous determinations by the Fifth

Circuit that fire prevention and protection is a

traditional governmental function.® More importantly,

however, is the fact that such opinion conflicts with the

Texas view toward providing fire protection within its

municipalities. All Texas case authority indicates that

the provision of fire protection within a municipality’s

> See, e.g., Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98

S.Ct. 1729 (1978); National League of Cities v. Usery, 426

U.S. 833, 96 S.Ct. 2465 (1976); and Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528, 105

S.Ct. 1005 (1985) (Powell, J. dissenting).

° See, e.g., Wilcox v. Terrytown Fifth District Volunteer Fire

Department, Inc. 897 F.2d 765 (Sth Cir. 1990); San

Antonio Metropolitan Transit Authority v. McLaughlin,

876 F.2d 441 (Sth Cir. 1989); Garcia v. San Antonio

Metropolitan Transit Authority, 838 F.2d 1411 (Sth Cir.

1988); and Peel v. Florida Department of Transportation,

600 F.2d 1070 (Sth Cir. 1979).

14

limits is a traditional governmental function of such

municipality.’

Finally, the Texas Legislature has expressly

determined that the provision of fire protection and

control within a municipality is an _ exclusive

governmental function.®

IT.

Review is warranted because the Fifth

Circuit’s opinion impermissibly allows a

municipality to abdicate its traditionally

exclusive governmental functions to

” See, e.g., Genzer v. City of Mission, 666 SW2d 116

(Tex.Civ.App. - Corpus Christi, 1983, ref. n.r.e.); City of

McAllen v. Morris, 217 SW2d 875 (Tex.Civ.App. - San

Antonio, 1948, err. ref'd); City of Coleman v. Rhone, 222

SW2d €46 (Tex.Civ.App. - Eastland, 1949, no writ); and

City of Houston v. Southwest Concrete Construction, Inc.,

835 SW2d 728 (Tex.App. - Houston [14th Dist.] 1992, no

writ).

° VTCA, Texas Civil Practice & Remedies Code, Section

101.0215. Though §101.0215 is concerned with whether

sovereign immunity is waived for purposes of the Texas

Tort Claims Act, WI'CA, Texas Civil Practice &

Remedies Code, §101.001, et seq., it is inescapable that

such declaration is likewise effective in determining

whether "state action” is involved in a 42 USC §1983

case such as this.

"private entities," thus allowing’ the

municipality and the "private entity" to

escape liability for the constitutional torts

of the "private entity."

Although the City of McGregor was powerless to

barter away its governmental responsibility under Texas

law,’ the opinion of the Fifth Circuit panel has allowed

the City to escape responsibility for the constitutional

torts of the entity to which it delegated its traditional

governmental responsibility. Such is a dangerous

precedent, especially in states such as Texas which have

a history of discriminating against minorities."°

When the City chose to allow the MVFD to

perform its traditionally exclusive governmental function

within its limits, the MVFD became a State actor, and

the acts of the MVFD remained the acts of the City. "’

When private groups are endowed by a city with powers

and functions governmental in nature, they become

agencies or instrumentalities of the city and are subject

to constitutional limitations. '? When a private entity

” City of Crosbyton v. Texas New Mexico Utilities, 157

SW2d 418 (Tex.Civ.App. - Amarillo, 1941, ref. w.o.m.).

See 52 CFR Part 51, Appendix.

'' Shelton v. City of College Station, 754 F.2d 1251 (Sth

Cir. 1985S).

2 Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486 (1966).

16

performs a function which is traditionally the exclusive

prerogative of the city, the acts of the private entity are

deemed the acts of the city.’

A city in Texas has the responsibility for

protecting its inhabitants’ property against destruction by

fire.'* Providing fire protection to citizens of a city is an

exclusively governmental function."

This Court should grant certiorari to resolve the

obvious error committed by the Fifth Circuit panel’s

decision in this case. Failure to do so will result in

repeated attempts by municipalities to abdicate

traditionally exclusive governmental functions to "private

entities" which, along with the municipality acting under

the opinion of the Fifth Circuit panel, will be free to

abuse constitutionally protected rights and _ to

discriminate at will.

CONCLUSION

The questions presented by this application have

enormous implications concerning the availability of the

United States Constitution as a shield for those whose

* Rendell-Baker, supra, at 2772.

‘4 City of McAllen, supra.

'° Genzer, supra; and Janusaitis v. Middlebury Volunteer

Fire Department, 607 F.2d 17 (2nd Cir. 1979).

17

rights are trampled by "private entities" to which have

been delegated the traditionally exclusive governmental

functions of municipalities. The Fifth Circuit panel’s

decision herein is clearly in error. This situation

requires remedy by this Court to ensure that equal justice

under law remains an attainable objective for all

governmental employees, including volunteers.

It is submitted that petitioners’ Petition should be

granted.

May 7, 1993.

Respectfully submitted,

R. John Cullar

Counsel of Record

Mills, Millar, Matkin & Cullar

1105 Wooded Acres, Suite 130

Waco, Texas 76710

(817) 776-199]

APPENDIX A

A-1

Franklin YEAGER, Walter Brandt, Don

C. Yeager and Mark Yeager,

Plaintiffs-Appellants,

V.

CITY of McGREGOR, et al.,

Defendants-Appellees.

No. 91-8574.

United States Court of Appeals,

Fifth Circuit.

Jan. 5, 1993.

Before GOLDBERG, JONES, and DeMOSS,

Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants were voted out of membership in the

McGregor, Texas Volunteer Fire Department (MVFD).

Unwilling to let bygones be bygones, they sued the City

of McGregor, MVFD and three individual defendants.

From the district court’s grant of summary judgment to

the defendants, the former fire fighters have appealed.

We affirm, principally because appellants did not raise

a fact issue supporting their assertion that MVFD is a

State actor or an agency of the City of McGregor.

Where there is no state action, no section 1983

constitutional claim exists.

A-2

BACKGROUND

The MVEFD has existed since the 1920’s and has

received subsidies from the City of McGregor. The City

currently furnishes a building, two fire trucks and

equipment to the volunteer program and pays each

fireman a $300 yearly stipend plus a $10 contribution to

a state pension program. Some City tax dollars are

annually budgeted to MVFD, although its primary

sources of revenue are donations and proceeds from the

annual barbecue.

In 1965, the City of McGregor approved the

Constitution and Bylaws of the MVFD as a voluntary

unincorporated association. The undisputed affidavit

evidence reflects, however, that the City exercised no

day-to-day management or control of MVFD and, in

particular, had no role in its membership decisions. The

summary judgment evidence showed that the City does

not approve MVFD’s choice of Fire Chief or its Chief

Engineer.

Appellants Franklin Yeager, Don Yeager, Mark

Yeager and Walter Brandt were members of MVFD

until December 1, 1988. In November of that year,

Franklin Yeager, Don Yeager and Walter Brandt met

with a mewspaper reporter and alleged racial

discrimination at the MVFD. They gave the reporter a

copy of an ancient MVFD application form in which an

applicant had to certify that he was "white male, 21 years

of age and of good moral character." Appellants’

allegations generated widespread media attention. On

A-3

December 1, appellants complained of financial

improprieties concerning MVFD funds at a McGregor

City Council meeting. Appellee Tom Kirk, a member of

the city council and influential local businessperson,

allegedly stated after the meeting, "I want them out,"

indicating that he wished plaintiffs to be expelled from

MVED. (Kirk and several witnesses deny that he made

this statement.) Shortly after the city council meeting,

the MVFD met in special session and voted

overwhelmingly by secret ballot to remove the appellants

from membership. At that time, former defendant John

Blake was department Chief and former defendant

Ronnie Spradley was President of the MVFD.

Nearly two years later, appellants filed suit in the

district court alleging that they were discharged because

of their public statements concerning _ racial

discrimination and MVFD financial irregularities. They

alleged a conspiracy between Councilman Kirk and

MVFD officials to deprive them of First Amendment

rights. Named as defendants were the City of

McGregor, the MVFD, Kirk, Blake and Spradley. After

conducting substantial discovery, the appellants

voluntarily dismissed the MVFD officials. The

remaining defendants filed separate motions for

Summary judgment, which the court granted. This

appeal followed.

STANDARD OF REVIEW

In reviewing a district court’s ruling on a motion

for summary judgment this court applies the same

A-4

standard that governs the district court. Bache v.

American Telephone & Telegraph, 840 F.2d 283, 287 (Sth

Cir.), cert, denied, 488 U.S. 888, 109 S.Ct. 219, 102

L.Ed.2d 210 (1988); Brooks, Tarlton, Gilbert, Douglas and

Kressler v. United States Fire Insurance Co., 832 F.2d

1358, 1364 (Sth Cir. 1987). We should therefore not

affirm a summary judgment ruling unless we are

"convinced, after an independent review of the record

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

that the movant is entitled to a judgment as a matter of

law." Brooks, 832 F.2d at 1364. When a fact question

controls the disposition of a summary judgment motion

this court must "review the evidence and any inference

to be drawn therein in the light most favorable to the

non-moving party." Baton Rouge Building Construction v.

Jacobs Constructors, 804 F.2d 879, 881 (Sth Cir.1986)

(per curiam). In contrast, we review questions of law de

novo. Kirkland v. North Side Independent School Dist.,

890 F.2d 794, 798 (Sth Cir.1989). We may affirm a

summary judgment on a ground not utilized by the

district court if it was raised below and has proper

support in the record. /n re Jones, 966 F.2d 169, 172

(Sth. Cir.1992); Bernhardt v. Richardson-Merrell, Inc. 892

F.2d 440, 444 (Sth Cir. 1990); Sapp v. Renfroe, 5i1 F.2d

172, 175 n. 2 (Sth Cir.1975).

STATE ACTION DOCTRINE

The threshold inquiry in this section 1983 action

is whether there was any intentional involvement of a

state actor. Wyatt v. Cole, __—iUS. , et ¥-

S.Ct. 1827, 1930, 118 L.Ed.2d 504 (1992); Carey v.

A-5S

Piphus, 435 U.S. 247, 254-57, 98 S.Ct. 1042, 1047-49, $5

LL.Ed.2d 252 (1978); Jett v. Dallas Ind. School District, 491

U.S. 70i, 731, 109 S.Ct. 2702, 2720, 10S L.Ed.2d 598

(1989). Appellants have contended that MVFD and the

City are state actors responsible for their expulsion from

MVED, while councilman Kirk "conspired" with MVFD

officials. For reasons to be stated, we disagree with

these contentions.

A. McGregor Volunteer Fire Department

The district court "assumed without deciding” that

the volunteer fire department was a state actor and

proceeded to the merits of the First Amendment claims.

If not corrected, this assumption might be costly to the

thousands of volunteer fire departments around the

country that may be needlessly exposed to section 1983

lawsuits. While the district court’s reluctance to wade

into an area as rife with conceptualism as the state

action doctrine is understandable, that alternative is less

appropriate for an appellate court. On examining the

question, we demur from establishing a broad rule

concerning volunteer fire departments in general; but

conclude that under present Supreme Court authority,

cases from this circuit and Texas law, MVFD was not a

State actor.

The ultimate issue in a § 1983 case is whether the

alleged infringement of federal rights stemmed from

conduct fairly attributable to the state. Lugar v.

Edmondson Oil Co., 457 U.S. 922, 938, 102 S.Ct. 2744,

2754, 73 L.Ed.2d 482 (1982). While this goal is, as

A-6

Judge Goldberg has observed, "relatively well-marked,"

Frazier v. Board of Trustees of Northwest Mississippi, 765

F.2d 1278, 1283 (Sth Cir.1985), the state action inquiry

is inherently difficult. Judge Goldberg also wrote,

"Imbued with an identity all its own, every state action

inquiry partakes only slightly of the factual stuff of other

cases.” Frazier, 765 F.2d at 1284.

The Supreme Court has adopted a variety of

guidelines for determining whether an individual or

entity acted on behalf of the state for purposes of

affixing section 1983 liability. Among the most

prominent talismans of state actor status are the

exclusive government function concept, the state’s

encouragement or coercion of private activities, the

symbiotic relationship and the entanglements formula.

2. R. Rotunda, J. Nowak and J. Young, Treatise on

Constitutional Law; Substance and Procedure § 16.2-16.4

(1986) (Supp.1991). Among these guidelines, appellants

have relied solely on the "exclusive government function"

Standard, asserting that "a city in Texas has the

responsibility for protecting its inhabitants’ property

against destruction by fire." Before analyzing the

appellants’ authorities, it is necessary to recur to the

Supreme Court’s explanation of the exclusive public

function concept--and its limitations.

The Supreme Court rejects the notion that any

entity that performs a "public function" is a state actor.

The question is not "whether a private group is serving

a public function,’ [but instead] whether the function

performed has been ‘traditionally the exclusive

ee LL LU

A-7

prerogative of the state," Rendell-Baker v. Kohn, 457

U.S. 830, 841, 102 S.Ct. 2764, 2772-73, 73 L.Ed.2d 418

(1982) (quoting Jackson v. Metropolitan Edison Co., 419

U.S. 345, 352, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974)).

Thus, the Court held that Massachusetts’ legislative

decision to educate special needs high school students at

public expense "In no way makes the services the

exclusive province of the State." /d. The private school

that contracted with the state to perform this function

was not transformed into a state actor. With similar

reasoning, the Court foreclosed a claim that nursing

homes were state actors because they operated with

State subsidies under requirements that the Medicaid

program imposed on the state. Blum v. Yaretsky, 457

U.S. 991, 1012, 102 S.Ct. 2777, 2789, 73 L.Ed.2d 534

(1982). The Court has also held that neither an

extensively regulated electric utility nor a warehouseman

that enforced its lien by invoking a U.C.C. self-help sale

provision was engaged in an exclusive public function

amounting to state action. Jackson, 419 U.S. at 352, 95

S.Ct. at 454; Flagg Brothers, Inc. v. Brooke, 436 U.S. 149,

160, 98 S.Ct. 1729, 1735, 56 L.Ed.2d 185 (1978).

In dicta, the Court once mentioned fire protection

among a list of traditionally exclusive public functions

including education, police protection and tax collection.

Flagg Brothers, 436 U.S. at 163-64, 98 S.Ct. at 1737. The

Court then added:

We express no view as to the extent, if any, to

which a city or state might be free to delegate

to private parties the performance of such

A-8

functions and thereby avoid the strictures of the

Fourteenth Amendment...[R]Jesolution [of such

factual situations] should abide the necessity of

deciding them.

Id. This self-qualifying reference does not decide the

present case. First, the Court itself later determined in

Rendell-Baker that a state educational function could be

assigned to a private party under certain conditions

without rendering the private school subject to § 1983.

Second, to the extent that the reference in Flagg Brothers

Suggests that it would be impermissible to delegate an

exclusive public function for the purpose of avoiding §

1983 liability, that underlying premise is absent from this

case.’ Finally, as Flagg Brothers states, the state action

question remains fact specific even where the exclusivity

of the public function is at issue. Lower courts must

therefore consider the history, tradition and local law

surrounding volunteer fire departments _ before

concluding whether they are state actors.

Under a fact-specific review, the MVFD does not

appear to perform a "power traditionally exclusively

reserved to the state." Jackson, 419 U.S. at 352, 95 S.Ct.

at 454. Texas law states that a home rule municipality,

' The Court has similarly qualified Evans v. Newton, 382

U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), as

establishing a narrow, fact-specific application of the

public function concept. See Flagg Brothers, 436 U.S. at

160 n. 8, 98 S.Ct. 1735, n. 8.

A-9

the form in which the City of McGregor is organized,

"may provide for a fire department." Texas Local

Government Code § 342.011 (Supp.1991) (emphasis

added). This language hardly sets up fire fighting as an

exclusive public function, and no Texas cases hold

otherwise.

Appellants rely on two cases to support the

contention that fire fighting is an exclusive public

function in Texas, but neither case stands for that.

proposition. In one of them, the state court found that

members of the Mission Volunteer Fire Department

served in a governmental capacity under a now-repealed

state law, Tex.Rev.Civ.Ann. art. 9205, to the extent that

the worked under the supervision of said employees of

the local fire department. Genzer v. City of Mission, 666

S.W.2d 116, 120 (Tex.Civ.App.--Corpus Christi 1983, writ

refd n.r.e.). The question in Genzer was not whether

the Mission Volunteer Fire Department was acting in

any kind of public function on its own, but was confined

to considering whether its members participated in

performing a public function for purposes of the Texas

tort Claims Act, when they served at a fireworks display

under the direct supervision of the City’s fulltime

employees. /d. There was no discussion of an "exclusive"

public function. In the other cited case, the court

decided simply not to limit a city’s police power to re-

zone in order to enhance fire protection. City of

McAllen v. Morris, 217 S.W.2d 875 (Tex.Civ.App.--San

Antonio, 1948, err.ref'd). Morris does state in dicta that "a

city is one of the most ancient and familiar forms of

municipal organization and it has vested in it the

A-10

responsibility for protecting its inhabitants against

violence and their property against destruction by fire."

217 S.W.2d at 877. The case before us deals not with an

"ancient and familiarly form of municipal organization"

but with a home rule municipality governed by specific

Texas Law.

This court also takes judicial notice of the fact

that there are a variety of private sector fire fighting

alternatives;” and fire fighting is not generally an

> See e.g., John A. Conway, Firemen for Hire, Forbes,

December 22, 1980 at 8 (noting "a dozen private

companies have taken over the job of fire protection in

cities and towns around the county."); Dick Davies, A

City Considers Private Fire Service, The New York Times,

January 30, 1983 at p. 15, col. 1 (noting that for 30 years,

cities in the south and southwest have used private

fire companies); Rural Metro, Business Wire, September

3, 1987 (available on Lexis) (discussing Rural Metro

Corp., a private national emergency fire fighting service

which operates the equivalent of 25 fire departments

throughout the United States.); Carolyn Lockhead,

Taking Cities Private, Saturday Evening Post, May 1988

at p. 30 (noting that "many Rural Metro clients maintain

full or part ownership of their fire stations and

equipment."); Lori Frearson, Company Proves

Privatization Works to Contain Fires, Expenses; Gazette,

Dec. 7, 1987 at p. 23.

A-11

exclusive government function.’ What is more, only half

the population of the United States is served by

exclusive government fire protection.’ According to

Martin Tolchin of the New York Times,

"Private Fire Departments, which thrived when

the nation was young, are serving a growing

number of communities...about 75 communities in

1S states..have hired private companies to

provide protection against fires...[one company]...

protects, 20% of Arizona’s population and has

private fire departments in New Mexico, Texas,

Florida and Tennessee.”

In Colonial America all firefighting was done by

private volunteers. Ron Coleman, Opportunities in Fire

Protection Services 5 (1990). In Europe the trend

continues to the present day. Lucy Holdges, /nefficient

Fire Service Should be Competitive, The Daily Telegraph

(Britain) September 18, 1989 at p. 4 (noting that West

Germany uses volunteer fire brigades and that in

Denmark “almost half the country is served by

commercial fire protection firms.")

* Donald DeVine, New Look of Local Government, The

Washington Times, February 22, 1992 at B. 1 (noting

"more than half the population is served by private or

volunteer protection"). This is not a new trend, but a

long term phenomenon. Robert Masters, Going to

Blazes (1967) (noting that in 1967 volunteer firefighters

responded to two-thirds of fires and that there were

A-12

The one federal circuit court decision that held a

volunteer fire department to be a state actor pre-dates

Blum and Rendell-Baker and at one point suggests that

it is ruling on the "symbiotic relationship test” as well as

the exclusive public function concept of state action.

Janusaitis v. Middlebury Volunteer Fire Department, 607

F.2d 17, 23 (2d Cir. 1979).° Omitting the problems of

archaism and ambiguity, however, Janusaitis is predicated

on a State law difference from that of Texas:

The Connecticut statute authorizing agreements

with volunteer fire departments implicitly

recognizes that fire fighting is essentially the

exclusive function of government.

eight times more volunteers than paid firemen); Ernest

Ernest, The Volunteer Fire Company Book 2 (1979)

(noting that only 250,000 of the 2,000,000 firefighters in

the United States were government employees.

> Martin Tolchin, Localities Shift to Private Firefighters,

New York Times, July 28, 1985 at 22.

6

Lower courts have been split in their reading of

Janusaitis because of this ambiguity. Krohnmuller v. West

End Fire Company, 123 F.R.D. 170, 174 (Ed.Pa.1988)

(symbiotic relation); Jensen v. Farrell Lines, Inc.625 F.2d

379, 386 (2d Cir.1980) (same); Lombard v. Eunice

Kennedy Shriver Center for Mental Retardation, 556

F.Supp. 677, 680 (D.Mass.1983) (exclusive government

A-13

607 F.2d at 24. Moreover, in Connecticut, volunteer fire

fighters are considered employees of a municipality for

workers compensation purposes, and a municipality is

required to indemnify them for specific Nabilities. 607

F.2d at 21. These distinctions are sufficient to render

Janusaitis less than compelling precedent for the instant

case.

As we reject appellants’ reliance on the exclusive

public function concept of state action,it is important to

point out that MVFD would not have been deemed a

State actor under any of the Supreme Court’s other

formulae. These formulae all depend on the degree to

which the state and the regulated entity exist in a

symbiotic relationship’ or under circumstances where the

conduct of the private actor can be fairly imputed as that

of the state. Jackson, 419 U.S. at 351, 95 S.Ct. at 453;

San Francisco Arts & Athletics, Inc. v. U.S. Olympic

Committee, 483 U.S. 522, 556, 107 S.Ct. 2971, 1991, 97

L.Ed.2d 427 (1987).

The Fifth Circuit has been asked to interpret this

group of tests in a variety of circumstances, most

pertinent of which are those involving government-

funded hospitals. In the hospital cases, it has been

function); Wiseman v. Sherry, 514 F.Supp. 728, 732 n. 8

(M.D.Pa.1981) (same).

’ Burton v. Wilmington Parking Authority, 365 U.S. 715,

81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

A-14

found that even when a hospital accepts substantial

governmental financial support, uses facilities

constructed with government guaranteed funds, and is

heavily regulated and reviewed, such a relationship is

"not sufficient to subject the act of that business to the

restraints of the First and Fourteenth Amendments".

McCroy v. Rapides Regional Medical Center, 635 F.Supp.

975, 980 (W.D.La.1986) affd 801 F2d 396 (Sth Cir.

1986).° Further, the court has held that "the

government’s acquiescence or approval [of a private

entity’s action is] insufficient to create government

action.” Smith v. North Louisiana Medical Review Ass'n,

735 F.2d 168, 173 (Sth Cir.1984). Even when state law

* See also Greco v. Orange Memorial Hospital Corp., 513

F.2d 873 (Sth Cir.1975), cert. denied 423 U.S. 1000, 96

S.Ct. 433, 46 L.Ed.2d 376 (1975) (hospital that was

largely funded with public bonds and whose building and

lands was owned by the county was not a State actor);

Maadry v. Sorel, 558 F.2d 303 (Sth Cir.1977) cert.denied,

434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978)

(hospital that received financial support and whose

bylaws allow public officials to serve as ex officio

members was not a State actor); Wong v. Stripling, 881

F.2d 200 (Sth Cir.1989) (no state action where private

hospital was within the purview of state legislation that

authorized doctor’s revocation and made available

option review of procedural fairness in court system).

A-15

granted civil immunity to a peer review committee, the

court has declined to find state action. Goss v. Memorial

Hospital System, 789 F.2d 353 (Sth Cir.1986.)

The only case in which this court has found state

action in a hospital setting is A.M. Jatoi v. Hurst-Euless-

Bedford Hospital Authority, 807 F.2d 1214 (Sth

Cir.18\987). Three factors were considered to

distinguish Jatoi, from the previous hospital cases. First,

a government authority initially operated the hospital. 807

F.2d at 1221. Further, the "Authority derived a direct

financial benefit from the private lessee. The Hospital

Authority’s repayment of bonds it issued and the

mortgages it entered into were dependent on successful

operation of the hospital." /d.

The court also found, significantly, that the governmental

authority "retained the ability to prevent or control racial

discrimination by its private manager." /d.”

” Absent these factors, even if a private actor receives a

state financial benefit, state action will not be found.

Fulton v. Hecht, 545 F.2d 540 (Sth Cir.1977) cert. denied

430 U.S. 984, 97 S.Ct. 1682, 52 L.Ed.2d 379 (finding no

state action even though the state of Florida regulated

and shared in the business revenues of Greyhound

racing against Greyhound owners). Outside the hospital

setting, extensive regulation and review will not turn

private action into state action. McLellan v. Mississippi

A-16

This case before us more closely resembles the

hospital cases in which no state action was found than it

does Jatoi. The City’s operating expense subsidy and

payment of token sums to fire fighters are insufficient to

develop the close nexus between the City and MVFD

that would convert the voluntary association’s decision

into state action. Unlike Jatoi, the City did not profit

from the existence of MVFD, never operated its own

fire department, and retained no ability to control

MVFD. The City was not involved in MVFD’s

membership policies and did not "coerce or encourage"

expulsion of appellants. Cf Blum, 457 U.S. at 1004, 102

S.Ct. at 2786. Appellants have never suggested how the

City’s initial exercise of a right of approval over MVFD’s

constitution and bylaws (which did not permit the City

to approve their amendments) results in continuing

control of MVFD by the City. See Rendell-Baker, 457

U.S. at 842, 102 S.Ct. at 2772. We are confident that

the connections between the City and MVFD are not so

close as to establish the volunteer fire department’s

Status aS a State actor.

Power & Light Co., 526 F.2d 879 vacated in part on other

grounds, 545 F.2d 919 (1977) (Sth Cir.1976). Finally,

absent other facts, it has been determined that if an

organization is organized and incorporated under state

law and receives federal and state monies, such as a

private university, state action does not exist. Blouin v.

Loyola University, 506 F.2d 20 (Sth Cir.1975).

A-17

B. City of MeGregor

Appellants assert two grounds for imposing

liability on the City of McGregor for their expulsion

from MVFD. First, they argue, because the City must

provide fire protection for its residents, MVFD_ has

fulfilled this exclusive prerogative of the City, and the

City is liable for the constitutional torts of the MVFD.

The previous discussion disposes of this contention.

Second, appellants contend that under the principal of

Frazier and Monell, the City can be held liable because

of its exercise of policymaking authority over the MVFD.

In Frazier, supra, one of this court’s cases

considering a government-funded hospital’s status as a

State actor, it was held that a city can be found

responsible for the termination decisions made by a

private association only if it exercises coercive powers

and provides such significant encouragement either overt

or covert that choice must in law be deemed to be that

of the city. Frazier, 765 F.2d at 1284 (citations omitted).

By contrast, the district court here found "the plaintiffs

have provided absolutely no summary judgment proof

that the defendant city has coerced or encouraged the

MVFD’s action." The deposition excerpts and affidavits

contained in the record fully support this finding.

Appellees have cited nothing in the record which

contradicts the district court’s finding.

Appellants also seek to avail themselves of the

Monell, principle that the City may be liable under §

1983 for an act consistent with official policy or custom

A-18

Or an act consistent with a custom or policy of an official

to whom final and complete policymaking authority has

been delegated. Monell v. Dept. of Social Services, 436

U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); City of

St. Louts v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915,

924, 99 L.Ed.2d 107 (1988). Appellants urge that the

final policy-making authority over the membership in the

MVFD was delegated by the City to the MVFD. This

doctrine is applicable, however, only if there is a

delegation of government powers. Because the MVFD

was a private association, the mayor, the city council,

and the city manager of the City of McGregor did not

hold, in the first instance, authority to regulate

membership in the MVFD and therefore could not

delegate that authority. Equally significant, the mayor

and the city manager each executed an affidavit saying

that neither they nor the city council had any connection

with or exercised any influence over the vote to expel

appellants from membership in the MVFD. The only

link between the termination and a city official--however

tenuous--was the alleged statement of Councilman Kirk.

Appellants have not shown that Kirk is an authority

holding discretion to hire and fire employees or that he

individually holds full policy-making authority in the area

of personnel matters. Neubauer v. City of McAllen, 766

F.2d 1567, 1574 (Sth Cir.1985). |

Since the City neither had policy-making authority

over the MVFD nor exercised significant overt or covert

encouragement in the termination of appellants, we

uphold the court’s granting of summary judgment for the

City of McGregor.

A-19

COUNCILMAN KIRK

Appellants finally contend that Councilman Kirk

used his position to influence the city council and certain

businessmen to remove them from the MVFD. They do

no allege that Kirk was a state actor in this regard but

have instead relied on the presumed state actor status of

John Blake and Ronnie Spradley, former officials of the

MVEFD, with whom Kirk allegedly conspired. Because

we have determined that MVFD was not a State actor,

its officers were not state actors either, and the

allegations against Kirk must fall.

SUMMARY

A private association of volunteer fire fighters

chose to remove four individuals from its membership

after an internecine struggle. Neither the City of

McGregor nor Councilman Kirk was officially involved

in this decision. Because it does not appear that Texas

law renders fire fighting an exclusive public function and

because none of the other hallmarks of state action are

present, the district court properly granted summary

judgment to appellees on appellants’ § 1983 claims.

AFFIRMED.

APPENDIX B

B-|

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

FRANKLIN YEAGER, WALTER BRANDT,

DON C. YEAGER, AND MARK YEAGER,

Plaintiffs,

Vs

CITY OF McGREGOR, McGREGOR

VOLUNTEER FIRE DEPARTMENT,

TOM KIRK, JOHN BLAKE and

RONNIE MOE SPRADLEY,

Defendants.

Civil No. W-90-CA-364

ORDER

Came on this date to be considered the

Defendants’ Motion for Summary Judgment. Plaintiffs,

former members of the McGregor Volunteer Fire

Department, filed suit against Defendants City of

McGregor (City); McGregor Volunteer Fire Department

(V.F.D.), Tom Kirk (Kirk), a McGregor City Council

member; John Blake (Blake), Fire Chief of the V.F.D.,;

and Ronnie Moe Spradley (Spradley), President of the

V.F.D. for damages and declaratory relief under 42

U.S.C. § 1983. Plaintiffs allege that they were dismissed

from the V.F.D. in retaliation for the exercise of their

ieee

B-2

rights to free speech when they publicly spoke against

the V.F.D.

I. Background

On November 19, 1988, Plaintiffs Franklin

Yeager, Walter Brandt and Don Yeager told a

newspaper reporter that the membership application of

Defendant V.F.D. required applicants to certify that

each applicant was "a white male, twenty-one years of

age and of good moral character." The next day the

newspaper ran a story about the alleged discriminatory

practices of the V.F.D. Plaintiffs also became aware of

possible irregularities in the finances of the V.F.D. On

December 1, 1988, Plaintiffs raised this issue at a public

meeting of the McGregor City Council, and an audit was

ordered. Members of the V.F.D. were present at the

city council meeting and heard the statements of the

Plaintiffs.

After the council meeting on December 1, 1988

was adjourned, the V.F.D. convened a meeting. At this

meeting, the Plaintiffs were voted out as members of the

V.F.D. Plaintiffs allege that this meeting was called by

Defendants Blake and Spradley after Defendant Kirk,

using his position and influence as a city council

member, ordered them to do so. On December 14,

1988, Plaintiffs were notified by Defendant Spradley in

his capacity as the President of Defendant V.F.D. that

they had been voted out of the McGregor Volunteer

Fire Department. Plaintiffs allege that the exercise of

their rights to free speech was a substantial and

motivating factor for their dismissal from the V.F.D.

Additionally, the Plaintiffs assert that Defendants Kirk,

B-3

Blake and Spradley conspired to deprive Plaintiffs of

their rights of free speech and to inhibit the exercise of

their rights among other members of the V.F.D.

However, Plaintiffs recently dismissed Defendants Blake

and Spradley from this suit.

Defendants previously filed Motions to Dismiss.

These were denied by the Court because, taking

everything the Plaintiffs had alleged as true, a cause of

action existed. After more discovery, Defendants’

Motion for Summary Judgment present a different

picture.

II. Summary Judgment

Summary judgment is appropriate only if "there

is nO genuine issue as to any material fact and ... the

moving party is entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c). The party seeking summary

judgment bears an "exacting burden of demonstrating

that there is no actual dispute as to any material fact in

the case." Impossible Electronic Techniques, Inc. v.

Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031

(Sth Cir.1982).

In determining whether the movant has met its

burden, the Court must view the evidence introduced

and all factual inferences from the evidence in the light

most favorable to the party opposing summary judgment.

See id. at 1031. All reasonable doubts as to the

existence of genuine issue of material fact_must be

resolved against the movant. See id. at 1031; Jones v.

Western Geophysical Co. of America, 669 F.2d 280, 283

(Sth Cir. 1982). When determining whether to grant

B-4

summary judgment, the Court is merely determining

witevirer a ractual' aispute exists and'1S not required to

resolve those disputes. See Jones, 669 F.2d at 283. The

fact that it appears to the Court that the non-movant

party is unlikely to prevail at trial or that the movant’s

statement of facts appears more plausible is not a reason

to grant summary judgment. See id. at 283.

Once the movant has shown the absence of

material factual issues, the opposing party has a duty to

respond with any factual assertion that would preclude

summary judgment. See Kleckner v. Republic Van &

Storage Co., 556 F.2d 766,771 (Sth Cir. 1977). Rule

56(e) of the Federal Rules of Civil Procedure provides

that "[W]hen a motion for summary judgment is made

and supported as provided in this rule, an adverse party

may not rest upon the mere allegations or denials of his

pleading, but his response, by affidavits or as otherwise

provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial. If he does

not so respond, summary judgment, if appropriate, shall

be entered against him." In this respect, the burden on

the non-moving party is not especially heavy; however,

he must show specific facts that present a genuine issue

of material fact worthy of trial rather than showing mere

general allegations. See Gossett v. Du-Ra-Kel Corp., 569

F.2d 869, 872 (Sth Cir. 1978).

III. Discussion

A. Defendant City’s Motion for Summary Judgment

To state a claim under section 1983, a Plaintiff

must have suffered a deprivation of a right protected by

) |

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the constitution or federal law and such deprivation must

have occurred under color of state law. Daniels v.

Williams, 474 U.S. 327, 330-31 (1986). Defendant V.F.D.

is a private unincorporated association. Therefore, to

hold the City liable for a private association’s decision

the alleged constitutional violation must be fairly

attributable to the City. See Frazier v. Board of Trustees

of Northwest Miss., 765 F.2d 1278, 1283-84 (Sth Cir.

1985) (city must exercise coercive power or provide

significant encouragement).

Citing several cases, Plaintiffs argue that the City

is liable for the V.F.D.’s actions because it has delegated

its responsibility for providing fire protection to the

V.F.D. See City of St. Louis v. Praprotnik, 485 U.S. 112

(1988); Pembaur v. City of Cincinnati, 475 U.S. 469

(1986); see also Webster v. City of Houston, 735 F.2d 838,

841 (Sth Cir. 1984); Bennett v. City of Slidell, 728 F.2d

762, 769 (Sth Cir. 1984), cert. denied, 472 U.S. 1016

(1985). However, these cases involve cities being sued

for the actions of their employees. Municipal liability in

such a case is determined by official policy. See Webster,

735 F.2d at 841 (decision by city’s lawmakers, by official

whom lawmakers have delegated policy-making

authority, or widespread practice). Here, Defendant

City is being sued for the alleged actions of a private

association. The Court must apply the standard

announced in Frazier to determine if the City is liable

for the V.F.D.’s actions.

Plaintiffs have provided absolutely no summary

judgment proof that Defendant City has coerced or

encouraged the V.F.D.’s actions. Plaintiffs have alleged

that Defendant to Tom Kirk, a city council member,

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stated to John Blake and Ronnie Moe Spradley that he

wanted the Plaintiffs out of the V.F.D. Defendant Kirk

States in his deposition that he never made such a

Statement. the depositions and affidavits of Blake and

Spradley confirm this. However, Henry Smith states in

his deposition that he overheard Kirk make this

statement. The depositions of the Yeagers indicate they

had been told by others that Kirk was intent on

removing them from the V.F.D. While this may present

a fact issue regarding Defendant Kirk’s involvement, it

does not approach the proof necessary to impute liability

to the City. Plaintiffs have pointed to no policy or

widespread practice. Indeed, Plaintiffs were voted out

of the V.F.D. by its own members. The city council has

nothing to do with the vote. The affidavits of the Mayor

and City Manager state that they and the council had no

involvement with Plaintiffs’ termination. The City’s

motion will be Granted.

B. Defendant V.F.D.’s Motion for Summary

Judgment

The Court assumes without deciding that the

V.F.D. is a state actor. See Janusaitis v. Middlebury

Volunteer Fire Dept., 607 F.2d 17, 21-25 (2nd Cir. 1979).

Next, the Court must determine whether or not

Plaintiffs’ speech was a matter of public concern. See

Nieto v. San Perlita Ind. School Dist., 894 F.2d 174, 178

(Sth Cir. 1990). Plaintiffs’ speech concerned the V.F.D.’s

nonuse of public funding. The Plaintiffs’ evidence

establishes that they were dissatisfied because none of

the money raised for the V.F.D. was ever spent.

Plaintiffs are not alleging that funds were stolen.

Plaintiffs also expressed concern over the V.F.D.’s policy

EO

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regarding minorities. In this regard, Plaintiffs’ evidence

shows that an application for the V.F.D. contained the

“white male" language mentioned above and that at least

one black male did not fill out an application because of

this language. Defendants allege the offensive language

is normally marked out. The Court has no doubt that

there are matters of public concern. See Connick v.

Myers, 461 US. 138, 149 n& (1983) (racial

discrimination); Moore v. City of Kilgore, 877 F.2d 364,

370 (Sth Cir. 1989) (administration of fire department).

Plaintiffs’ interests in making such statements

must be balanced against the V.F.D.’s interest in the

promotion of efficient service. See Nieto, 894 F.2d at

179 (quoting Pickering v. Board of Education, 391 U.S.

563 (1968)). "This balancing is to be conducted by the

court as a matter of law." /d. The following factors may

be considered when balancing these interests: (1) was

the speech likely to cause controversy and disruption, (2)

would the speech impede the V.F.D.’s performance and

operations, (3) would it affect working relationships, and

thus, the V.F.D.’s proper functioning, (4) the time, place

and manner of the activity, and (5) was the activity

hostile, abusive or insubordinate. See Brawner v. City of

Richardson, 855 F.2d 187, 192 (Sth Cir. 1988); Matherne

v. Wilson, 851 F.2d 752, 761 (Sth Cir. 1988) (speech

impairing discipline by superiors or harmony of workers

need not be tolerated).

Plaintiffs’ response to Defendant V.F.D.’s motion

relies upon the fact that "two of the Plaintiffs fought a

fire with other members of the MVFD after they were

terminated but before they were advised of such

termination," and that therefore their speech could not

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have been detrimental to the V.F.D. See Moore, 877

F.2d at 374 (fighting fires is primary responsibility).

There was overwhelming support for the removal of

Plaintiffs. The vote to dismiss Plaintiffs went as follows:

Walter Brandt, 14 out, 0 in; Don Yeager, 12 out, | in, |

not voting; Franklin Yeager, 13 out, 1 in; and Mark

Yeager, 9 out, 5 in. See Defendant’s Exhibit 3. The

affidavits and depositions supporting Defendant V.F.D.’s

motion establish among other things that Plaintiffs were

dissatisfied with the way the V.F.D. was run; that they

criticized and argued with others and with the V.F.D.’s

officers; that they wanted John Blake and other officers

removed; that Plaintiffs actions impaired the V.F.D.’s

morale, image and comradery; that Plaintiffs would not

work within the chain of command and questioned the

V.F.D. officers’ authority; and that Plaintiffs’ actions

caused others not to trust them and caused some to

consider leaving. See Defendant’s Exhibits 1-8, 14.

The Plaintiffs’ alleged disruption of the V.F.D.

started long before November, 1988 when statements

were made to the press. /d. The Plaintiffs’ depositions

establish that in early 1988 members of the community

had been told about "the money" and that Plaintiffs were

dissatisfied with the V.F.D.’s financial policies. Thus,

the core issue of the Plaintiffs’ statements regarding the

V.F.D.’s finances was raised, publicly and privately, and

caused controversy and disruption well before they were

dismissed. Furthermore, the Plaintiffs were not

dismissed immediately after making the statements to

the press. The meeting to dismiss the Plaintiffs was not

called until the next month when Plaintiffs questioned

the nonuse of V.F.D. finances.

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Plaintiffs do present evidence that a fire was

fought after the decision to dismiss them had been

made. While the Court considers this as important, the

Defendants have established that Plaintiffs disrupted

drills and meetings. Furthermore, according to the

affidavits and depositions of several firemen, including

the Plaintiffs, working relationships were affected by

Plaintiffs’ constant battle with the V.F.D. Thus, the

ability to maintain discipline was impaired, as well as the

harmony between coworkers. The Court has no doubt

that hostility existed between Plaintiffs and the V.F.D.’s

officers. Based upon all the evidence, the Court does

not believe the Plaintiffs were dismissed for exercising

their constitutional rights.

The Court does not reach this decision easily.

See Moore, 877 F.2d at 376-77 (balancing favored

plaintiff fireman). In Moore, the conflict was between

two people -- the plaintiff and city manager. /d. at 373-

74. Further, the City of Kilgore presented no evidence

regarding the effectiveness of the fire department. /d. at

374-75. The Fifth Circuit viewed the fact that Moore

was a fireman as inconsequential in light of the type of

discipline that had been imposed. /d. at 374 (discipline

imposed by city government on city employee). Here,

the facts presented show that Plaintiffs did all they could

to disrupt the V.F.D., and thus, undermine its leadership.

Defendant’s evidence clearly shows that several of the

volunteer firemen did not trust the Plaintiffs and felt

they compromised the V.F.D.’s effectiveness. The Court

believes Janusaitis is instructive. 607 F.2d 17 (2nd Cir.

1979). Defendant V.F.D.’s motion will also be Granted.

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in Defendant Kirk’s Motion for Summary Judgment

Plaintiffs state in their response to Defendant’s

motion that they "do not complain .. . of any legitimate

legislative act of Defendant KIRK in his capacity as a

member of the McGregor City Council." Plaintiffs allege

that Defendant used his position and influence as a city

council member to remove them from the V.F.D.

Liability may not be maintained under section 1983

against a private party. Lugar v. Edmondson Oil Co., 457

U.S. 922, 930 (1982). Plaintiffs have alleged that Kirk as

a private party conspired with Spradley and Blake who,

for purposes of this Order, are state actors. The

involvement of a state actor in a conspiracy provides the

State action requirement for a private party involved in

such a conspiracy. Adickes v. S. H. Kress & Co., 398 U.S.

144, 152 (1969); Slavin v. Curry, 574 F.2d 1256, 1263 (Sth

Cir. 1978).

However, Spradley and Blake were dismissed

from this suit by agreement of the parties. Thus, it

appears that state action may no longer present because

Kirk’s alleged co-conspirators have been dismissed. A

conspiracy is made up of two or more persons. More

importantly, the only action attributed to Defendant Kirk

is the statement "I want them out." Plaintiffs have failed

to present summary judgment evidence that this action

caused their injury. See Bowen v. Watkins, 669 F.2d 979,

985 (Sth Cir. 1982). Plaintiffs were voted out by the

V.F.D., not Kirk. Defendant Kirk allegedly made this

statement to Spradley and Blake. Spradley’s deposition,

as well as Junior Fisher’s, establishes that Spradley did

not vote. Thus, only Blake’s vote had an impact. Even

if Blake had voted against dismissal, the majority vote

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still would have removed Plaintiffs. See id. Defendant

Kirk’s motion will be Granted. Accordingly, it is

ORDERED that Defendants’ Motions for

Summary Judgment are GRANTED. It is further

ORDERED that applications for attorney’s fees

should be submitted in accordance with Local Rule CV-

7 Qj). It is further

ORDERED that this case is DISMISSED.

SIGNED this 26th day of September, 1991.

/s/ Walter S. Smith, Jr.

WALTER S. SMITH, JR.

UNITED STATES DISTRICT JUDGE

APPENDIX C

C-]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-8574

FRANKLIN YEAGER, WALTER BRANDT,

DON C. YEAGER and MARK YEAGER,

Plaintiffs-Appellants,

versus

CITY OF MCGREGOR, ET AL,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

ON PETITION FOR REHEARING

(February 8, 1993)

C-2

Before GOLDBERG, JONES and DEMOSS, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

/s/ Edith H. Jones

United States Circuit Judge