Opposition Brief — Yeager v. City of McGregor

{ @uprems Cout, U.S

(5) EILED

No. 92-1936 JUN 25 1993

In The

Supreme Court of the United States

October Term, 1992

€

FRANKLIN YEAGER, WALTER BRANDT,

DON C. YEAGER, and MARK YEAGER,

Petitioners,

V.

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

*

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

Susan KELLEY-CLAYBROOK

Counsel of Record

Hersert S. Bristow

Ha ey, Davis, WREN, Bristow &

Rasner, P.C.

510 N. Valley Mills Drive,

Suite 600

Waco, Texas 76710

(817) 776-3336

Counsel for Respondent

McGregor Volunteer Fire

Department

COCKLE LAW BRIEF PRINTING CO, 225-6964

OR CALL COLLECT tad) 3429831

wigs

‘BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

Se Ae Pe 5 oa 6 Fo ccc iis Senn ueeenes css ii

oF | SP ee eee T eT Tee ee Cee ere Tee 2

Pa ROE GE Pinna shes a csevnvebenvsys 2

B. Course of Proceedings and Disposition of the

RPE SHLKRARLOGNES REN SSCULADA OR SRAER ORR Ges KO 4

Reasons Why the Petition for Writ of Certiorari

UUs PUGS TP GeCMONO o ooo sc cc ccc cdcncnesess 6

escent. a LE TT CEE EU EE LETC TEER ETT COPEL OL ETe 6

A. Inaccuracies in the Petition for Writ of Cer-

PE PET TTT TCT ETE ST CETTE TET TTT Te 6

B. Review Is Not Warranted in This Case Because

The Opinion of the Fifth Circuit Was Correctly

ee eee erry ere ee eee 9

1. Prior Authority From This Court......... 9

ee Pee Terre eee eT eTeeeTeeere 11

| ee ee 13

4. Janusaitis v. Middlebury Volunteer Fire

PEE TUPLE TTT CTO CUT eT TUE ee 14

RAPT Te Te Tee Cree Tee ET Eeee 15

Se CE OO ose evan e sa bk ie ww ea wa'e eens 15

ii

TABLE OF AUTHORITIES

Page

Cases

Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73

LS CRUD S 6.5 04:00 0r-o vs san beky eeue saaekeees 14

City of Coleman v. Rhone, 222 S.W.2d 646 (Tex. Civ.

App. — Eastland 1949, writ ref’d)................. 12

City of Crosbyton v. Texas-New Mexico Util. Co., 157

S.W.2d 418 (Tex. Civ. App. - Amarillo 1941, writ

OES WOM) sick toe ccksshssen eee 12

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

835 S.W.2d 728 (Tex. App. - Houston [14th

t.D Tea, WO WHE) «civ iscsdasnceeesce ene 12

City of McAllen v. Morris, 217 S.W.2d 875 (Tex. Civ.

App. — San Antonio 1948, writ ref’d)............. 12

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct.

1729, 56 L.BG.2d UES COTO iss cies cweendeu eee 9, 10

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)..... 10, 13

Genzer v. City of Mission, 666 S.W.2d 116 (Tex. App.

— Corpus Christi 1983, writ ref’d n.re.)........... 12

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95

S.Ct. 449, 42 L.Ed.2d 477 (1974)............. 9, 11, 15

Janusaitis v. Middlebury Volunteer Fire Dept., 607

F.2a 87 Gnd Cie. B78) cn kscesncan eee 14

Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct.

2744, 73 L.6G.20 G62 (190R) sc iessinccavannensenes 9

McKinney v. City of Gainesville, 814 S.W.2d 862

(Tex. App. — Fort Worth 1991, no writ) ........... 11

National League of Cities v. Usery, 426 U.S. 833, 96

S.Ct. 2465, 49 L.Ed.2d 245 (1976).......... se eeee 9, 10

ee

ili

TABLE OF AUTHORITIES - Continued

Page

Peel v. Florida Dept. of Transp., 600 F.2d 1070 (5th

I A ee rere 13

Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764,

ee 8 eee 9, 14

San Antonio Metro. Transit Auth. v. McLaughlin, 876

Se Ns sk ican cccerseesaerecaes 13

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

Comm., 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d

CC CURCLGRGREGRS CA 6655050005 b0h¥056 505005 15

Wilcox v. Terrytown Fifth Dist. Volunteer Fire Dept.

fc, Ger Bam veo (oem Cit, 1990)... .. 6. sees ees 13

CONSTITUTION, STATUTES & REGULATIONS

re a; By Rly tay: BO

enc hAGA SSA GK S0 aaah seeks ses 0en ees 7

ae eee © cee PM., S91Z-002....... 2. cece 11

Texas Local Gov’t Code Ann., §342.011.............. 11

Texas Torts Claims Act, Tex. Civ. Prac. & Rem.

I ME MEEODs ges nccncnccsessvasveccsescess 11

No. 92-1936

¢

In The

Supreme Court of the United States

October Term, 1992

*

FRANKLIN YEAGER, WALTER BRANDT,

DON C. YEAGER, and MARK YEAGER,

Petitioners,

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

+

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

The McGregor Volunteer Fire Department, Defen-

dant/Appellee in the courts below, respectfully submits

this Brief in Opposition to the Petition for Writ of Cer-

tiorari filed by Franklin Yeager, Walter Brandt, Don C.

Yeager and Mark Yeager (“the Petitioners”), and requests

that this Court deny the petition and decline to review

the judgment and opinion of the United States Court of

Appeals for the Fifth Circuit that was entered on January

5, 1993.

STATEMENT OF THE CASE

McGregor Volunteer Fire Department (“the MVFD”),

a private volunteer organization formed in 1920, operates

in the city of McGregor, Texas, and the surrounding rural

area. Individual volunteers comprise the MVFD’s mem-

bership, and the group is primarily funded through vol-

untary donations and an annual charity barbecue. (R. Vol.

4, MVFD Exhibits 1 and 2).' Essentially, the MVFD is an

informal association of individual volunteers.

The City of McGregor, Texas, is a home-rule munici-

pality. (R. Vol. 2 at 524). At no time during its existence

has the City created or operated a municipal fire depart-

ment. (R. Vol. 2 at 309). The City of McGregor is not

obligated under Texas law to provide fire service; instead,

Section 342.011 of the Texas Local Government Code

provides that a home-rule municipality may create a fire

department. (R. Vol. 1 at 624). The City did not, and as a

matter of law, could not, delegate fire fighting services to

the MVFD, and the Fifth Circuit correctly held that the

MVFD was not a state actor.

A. Statement of Facts

Prior to December 1, 1988, Franklin Yeager, Walter

Brandt, Don C. Yeager and Mark Yeager were members of

1 Volume 4 of the Transcript consists of the Motions for

Summary Judgment of Defendants Blake, Spradley and the

MVFD, the Brief in Support of the Motion, and Petitioners’

Response to the Motion. The pages of Volume 4 were not

numbered. References to Volume 4 of the Transcript will specify

the document referred to and, if necessary, the exhibit number

to the document.

the MVFD. During the time that the Petitioners were

members of the organization, they generated friction

within the department and pursued a personal vendetta

against certain officers of the MVFD. (R. Vol. 4, MVFD

Exhibits 1 through 6). Within the department, morale

decreased and discipline grew slack, a condition most

members attributed directly to the presence and conduct

of the Petitioners. (R. Vol. 4, MVFD Exhibits 1 through 6).

Finally, on December 1, 1988, with a quorum present,

MVFD members voted by secret ballot to withdraw the

Petitioners’ membership in the department. (R. Vol. 4,

MVFD Exhibit 3).

During the many months before the vote revoking

the Petitioners’ memberships, the Yeagers and Brandt had

been involved in a systematic campaign to disrupt and

discredit the functioning of the department. Their tactics

ranged from constant criticism of the leadership, to snick-

ering and jeering during meetings, to wholesale disrup-

tion of drills such that the department could no longer

hold meaningful practice exercises. (R. Vol. 4, MVFD

Exhibits 1 through 6). Additionally, Petitioners criticized

the way the department spent the money raised through

the annual barbecue. (R. Vol. 4, MVFD Exhibits 1 through

6). And, although at that time the MVFD had some

minor ‘ies among its membership, three of the Petitioners

met with a reporter from a local newspaper and informed

him of alleged racial discrimination within the depart-

ment. (R. Vol. 4, Yeagers’ Exhibit 5; MVFD Exhibits 1 and 2).

About a month later, the Petitioners again publicly crit-

icized the MVFD, renewing their unfounded allegations

of financial improprieties within the department during a

meeting of the McGregor City Council. (R. Vol. 4, MVFD

Exhibit 1).

After discipline, operations, and morale fell to an all

time low within the membership, seven of the depart-

ment’s members requested a specially called meeting of

the MVFD on December 1, 1988. (R. Vol. 4, MVFD Exhibits

1, 2). With a quorum of 15 present, and with Spradley, the

president, abstaining, the overwhelming majority of the

membership voted to remove the Yeagers and Brandt

from the volunteer organization. (R. Vol. 4, MVFD Exhibit

3).

B. Course of Proceedings and Disposition of the

Case

The Yeagers and Brandt filed their complaint in

November of 1990 in the United States District Court for

the Western District of Texas, against the City of

McGregor, Texas, the MVFD, Tom Kirk, John Blake and

Ronnie Moe Spradley.? The Petitioners alleged that they

were voted out as members of the MVFD in retaliation for

the public comments they made regarding alleged racial

discrimination and financial improprieties within the

MVFD, and that the vote to remove them from member-

ship violated their First Amendment rights to free speech.

The district court granted the Defendants’ Motions

for Summary Judgment, concluding that: 1) there was no

summary judgment evidence that the City of McGregor

2 John Blake, fire chief of the MVYFD and Ronnie Moe

Spradley, President of the MVFD, were dismissed from the law-

suit by the agreement of the parties. Petitioners’ Appendix B at 10.

coerced or encouraged the actions of the MVFD’s mem-

bership, and therefore the organization’s actions could

not be fairly attributed to the City (Petitioners’ Exhibit B at

5); 2) the uncontroverted summary judgment evidence

established that the MVFD’s interest in the promotion of

efficient service, balanced against the Petitioners’ First

Amendment interests in making statements of public con-

cerns, weighed in favor of the MVFD (Petitioners’ Exhibit

B at 6-9); and 3) the summary judgment evidence failed to

establish that any action of Kirk caused the Petitioners

any injury, and no state action was present because the

remainder of the alleged co-conspirators had been dis-

missed from the lawsuit. (Petitioners’ Exhibit B at 10-11).

The Yeagers and Brandt appealed to the Fifth Circuit,

which affirmed the summary judgments on the basis that

no state action was implicated by the vote of a private

association of volunteer fire fighters to remove four indi-

viduals from its membership. (Petitioners’ Exhibit A at 19).

¢

REASONS WHY THE PETITION FOR WRIT

OF CERTIORARI SHOULD NOT BE GRANTED

Review by writ of certiorari is not warranted because

the Fifth Circuit’s opinion does not: 1) conflict with

prior decisions of the Fifth Circuit; 2) decide a federal

question in conflict with any applicable decision of this

Court or the Texas Supreme Court; 3) so far depart from

the accepted and usual course of judicial proceedings or

Sanctions as to call for the exercise of this Court’s power

of supervision; 4) decide an important question of fed-

eral law which has not been, but should be, settled by

this Court; or 5) in any other way present an issue of

sufficient merit or importance as to invoke this Court's

power of discretionary review. Instead, the Fifth Circuit

correctly affirmed the judgment of the district court and

held that the MVFD was not a state actor.

.

ARGUMENT

A. Inaccuracies in the Petition for Writ of Cer-

tiorari

The Petition for Writ of Certiorari misstates or mis-

characterizes both the law and the facts of this case in

several important ways. First, the petition mischaracter-

izes the opinion of the Fifth Circuit. Contrary to Peti-

tioners’ claim, the Fifth Circuit did not base its opinion

upon statements quoted from magazines and news-

papers, but instead, in a well-reasoned and legally sound

opinion, concluded from its review of cases from this

Court, prior Fifth Circuit law, and Texas law that the

MVFD was not a state actor. Petitioners’ broad-stroke

dismissal of the Fifth Circuit’s opinion as being premised

solely upon “hearsay” is grossly inaccurate and mis-

characterizes the Fifth Circuit’s analysis supporting its

opinion.

Second, in attempting to posture their case for discre-

tionary review with this Court, Petitioners claim that the

Fifth Circuit’s opinion “ignores and conflicts” with prior

Fifth Circuit opinions and Texas law. As discussed in

greater detail below, no judicial or legislative body has

ever decreed that fire prevention and protection is an

exclusive governmental function of Texas municipalities.

The City of McGregor has never undertaken the respon-

sibility to operate a municipal fire department, nor has it

acted to delegate that activity to any entity, including the

MVEFD. The City could not delegate a function which it

did not otherwise have the legal obligation to perform.

Third, Petitioners inaccurately state that no defen-

dant raised the issue that providing fire protection was

not a traditionally exclusive governmental function at the

trial court level or in their appellate briefs. In a Motion to

Dismiss under Federal Rules of Civil Procedure 12(b)

which was overruled by the district court, the MVFD

asserted that it was not a state actor. (R. at 31-32; 150-60).

The City’s appellate brief to the Fifth Circuit specifically

addressed the issue. (Brief of Appellee City of McGregor at

2). The MVFD expressly adopted the City’s argument.

(Brief of Appellee McGregor Volunteer Fire Department at 7,

n. 2). The issue of state action did not arise in a vacuum

during the drafting of the panel’s opinion.

Fourth, Petitioners incorrectly state that the district

court “concluded, without deciding” that the MVFD was

a state actor. Actually, the lower court stated that it

“assumes without deciding that the V.F.D. is a state actor.”

(Petitioners’ Exhibit B at 6) (emphasis added). It was this

assumption concerning the threshold inquiry — whether

there was any involvement of a state actor - that

prompted the Fifth Circuit’s lengthy analysis, since they

feared that the uncorrected assumption might needlessly

expose other volunteer fire departments around the coun-

try to Section 1983 lawsuits. (Petitioners’ Exhibit A at 5).

Finally, the Petitioners inaccurately characterize the

Fifth Circuit’s opinion as one having “enormous implica-

tions” that would somehow shield those whose rights are

trampled by “” ‘private entities’ to which have been dele-

gated the traditionally exclusive governmental functions

of municipalities.” Yet the panel’s opinion clearly limited

the scope of the decision to the MVFD particularly, say-

ing: “On examining the question, we demur from estab-

lishing 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.” (Petitioners’

Exhibit A at 5). And later, the Court reiterated that “under

a fact-specific review, the MVFD does not appear to per-

form a ‘power traditionally exclusively reserved to the

state.’ ” (Petitioners’ Exhibit A at 8) (emphasis added). The

opinion clearly limits the scope of its application and the

Petitioners’ fears are unfounded.

B. Review is Not Warranted In This Case Because

The Opinion of the Fifth Circuit Was Correctly

Decided

The Fifth Circuit’s opinion in this case focuses upon

the fundamental inquiry in any §1983 case - whether the

alleged infringement of a constitutional right arose from

conduct fairly attributable to the state. Lugar uv.

Edmondson Oil Co., 457 U.S. 922, 938, 102 S.Ct. 2744, 2754,

73 L.Ed.2d 482, 496 (1982). Absent the involvement of a

state actor, no wrong capable of redress under §1983

occurred.

Petitioners argue that the provision of fire protection

to the citizens of the City of McGregor is an “exclusive

government function” and that the MVFD performed the

services only through the delegation of that function from

the City. However, as the Fifth Circuit noted, the relevant

inquiry is not whether a private group serves a public

function, but whether that particular function is exclu-

sively “the prerogative of the state.” Rendell-Baker v. Kohn,

457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418, 428

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

345, 352, 95 S.Ct. 449, 454, 42 L.Ed.2d 477, 485 (1974)).

1. Prior Authority From This Court

Contrary to the Petitioners’ assertions otherwise, this

Court has not determined that the provision of fire pro-

tection is an exclusive governmental function of a munici-

pality. Petitioners cite Flagg Brothers, Inc. v. Brooks, 436

U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); National

League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49

10

L.Ed.2d 245 (1976); and Garcia v. San Antonio Metro. Tran-

sit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016

(1985) (Powell, J. dissenting) as supporting authority. Gar-

cia rejected the “traditional government function” rule of

state immunity from FLSA wage and over-time regula-

tions and overruled National League of Cities. 469 U.S. at

557. Neither Garcia nor National -League of Cities defined

fire protection as an exclusive governmental function;

instead this Court noted that fire protection is an activity

that is traditionally carried on by governmental entities.

See, e.g., National League of Cities, 426 U.S. at 851 (“These

activities [fire prevention, police protection, sanitation,

public health and parks and recreation] are typical of

those performed by state and local governments. . . ”)

and 855 (“[fire protection] provides an integral portion of

those governmental services which the States and their

political subdivisions have traditionally afforded their

citizens.”)

This Court’s discussion in Flagg Brothers did center

around the governmental functions “exclusively reserved

to the State,” but in the context of a state’s alleged delega-

tion of the power to resolve private disputes. 436 U.S. at

157. Fire protection services were discussed only as an

example of other areas of state and municipal functions.

As this Court observed in Flagg Brothers, the state

action question is situationally specific and courts must

review the history, tradition and local law surrounding

the particular activity to determine whether the defen-

dant is a state actor. 436 U.S. at 163-64. That is precisely

what the Fifth Circuit did in this case, concluding that

under the fact-specific review, the MVFD “does not

appear to perform a ‘power traditionally exclusively

11

reserved to the state.’ ” (Petitioners’ Exhibit A at 8, citing

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95

S.Ct. 449, 454, 42 L.Ed.2d 477, 485 (1974)).

2. Texas Law

Nothing in Texas law requires the City of McGregor,

a home-rule municipality, to provide fire protection to its

citizens; instead, the authorizing statute states that “A

home-rule municipality may provide for a fire depart-

ment.” Tex. Loc. Gov't Code Ann. §342.011 (Vernon 1988).

The Texas legislature’s choice of permissive language

must be given its normal meaning. Tex. Gov't Code Ann.

§312.002 (Vernon 1988).

This result is not altered by the language of §101.0215

of the Texas Civil Practice & Remedies Code, contrary to

Petitioners’ assertions. Section 101.0215 provides an illus-

trative list of functions which may form the basis of

governmental liability under the Texas Torts Claims Act,

as long as the activity falls within the parameters of the

three areas of the Act in which the government has

waived sovereign immunity. McKinney v. City of Gaines-

ville, 814 S.W.2d 862, 865 (Tex. App. — Fort Worth 1991, no

writ). The inclusion of police and fire protection within

§101.0215 does not mean that governmental immunity is

waived under the Texas Torts Claims Act per se for

actions within that category, nor can the statutory section

be interpreted so broadly as to create a determinative list

of “state action” for §1983 purposes. To do so would not

only implicate §1983 liability for all activities listed -

including the operation of hospitals, parks, museums,

cemeteries, libraries, senior citizen centers, recreational

12

facilities and parking facilities (all of which can be oper-

ated on a private basis in the state of Texas without the

delegation of governmental responsibility) - but would

also place the statute in square contradiction with the

Local Government Code which makes the provision of

fire protection optional for home-rule municipalities.

No Texas case has held that the provision of fire

protection services is an exclusive function of a Texas

home-rule municipality such as the City of McGregor.

The cases relied upon by the Petitioners do not stand for

such a proposition; they either do not mention fire pro-

tection at all or merely acknowledge that under the speci-

fic factual situations, the provision of fire protection is

well within the police powers of a municipality or city in

Texas.?

3 See, e.g. City of Houston v. Southwest Concrete Const., Inc.,

835 S.W.2d 728 (Tex. App. —- Houston [14th Dist.] 1992, no writ)

(fire protection not mentioned in text); Genzer v. City of Mission,

666 S.W.2d 116 (Tex. App. - Corpus Christi 1983, writ ref’d

n.r.e.) (members of the volunteer fire department served in a

governmental capacity under article 9205 of the Texas Revised

Civil Statutes (now repealed) to the extent they worked under

the supervision of the local police department and the fire chief,

an employee of the City of Mission); City of Coleman v. Rhone, 222

S.W.2d 646 (Tex. Civ. App. - Eastland 1949, writ ref’d) (inter-

preting city ordinance regarding access to street from local fire

station based upon the city’s inherent police powers); City of

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

1948, writ ref’d) (no discussion of whether fire protection is an

exclusive governmental function of the city or the impact of

§342.011 of the Texas Local Government Code or its predecessor

statute); City of Crosbyton v. Texas-New Mexico Util. Co., 157

S.W.2d 418 (Tex.Civ. App. - Amarillo 1941, writ ref’d w.o.m.)

(fire protection not mentioned in text).

13

3. Fifth Circuit Precedent

The Fifth Circuit cases cited by the Petitioners do not

state that fire prevention and protection is an exclusive

governmental function of the City, nor were any of the

cases decided in the context of a §1983 cause of action.4

None of the decisions address the Texas legislature’s lan-

guage in the Local Government Code that home-rule

municipalities like the City of McGregor may provide fire

protection at their option, and none conflict with the Fifth

Circuit panel’s opinion in this case. The Fifth Circuit

simply has not made a determination in prior cases which

conflicts with the present opinion.

4 Wilcox v. Terrytown Fifth Dist. Volunteer Fire Dept. Inc., 897

F.2d 765 (5th Cir. 1990) (Louisiana volunteer fire department

considered a public agency for purposes of the FLSA under the

specific facts of the case because the department was required to

submit its annual financial report to the parish for inclusion in

the parish annual budget, and under the terms of its contract

with the parish was directly under the governing authority of

the Jefferson Parish Council); San Antonio Metro. Transit Auth. v.

McLaughlin, 876 F.2d 441 (5th Cir. 1989) (fire protection not

discussed in opinion concerning the recoverability of attorney’s

fees by a litigant in an action under the FLSA); Garcia v. San

Antonio Metro. Transit Auth., 838 F.2d 1411 (5th Cir. 1988) (issue

on appeal after remand was whether the Supreme Court’s opin-

ion in Garcia v. San Antonio Metro. Transit Auth. should be retro-

actively applied); and Peel v. Florida Dept. of Transp., 600 F.2d

1070 (5th Cir. 1979) (determining whether an employee of the

Florida Department of Transportation, an agency of the state,

could bring suit against the DOT for violation of the Veteran’s

Reemployment Rights Act).

i heii le

14

4. Janusaitis v. Middlebury Volunteer Fire

Department

Finally, as noted by the Fifth Circuit, Petitioners’

reliance upon Janusaitis v. Middlebury Volunteer Fire Dept.,

607 F.2d 17 (2nd Cir. 1979) is misplaced because the case

is both factually and legally distinct from the present

situation. The closest analogy of Janusaitis to this case is

the court’s ruling that upon balancing the plaintiff's abra-

sive and personally motivated conduct against the partic-

ular need for close and harmonious relations among the

members of the volunteer fire department, the dismissal

did not violate the plaintiff’s First Amendment rights.

The District Court in this case correctly premised its

opinion upon a similar analysis.

The Second Circuit determined that the volunteer fire

department involved in Janusaitis was a state actor based

upon an analysis of several Connecticut statutes which

differ markedly from §342.011 of the Texas Local Govern-

ment Code. Additionally, the Town Board of Selectmen

had the final vote of approval over some of the personnel

of the department. 607 F.2d at 21-22. And, as noted by the

Fifth Circuit, the Second Circuit’s determination that the

volunteer fire department carried out an exclusive func-

tion of government was decided prior to Blum v. Yaretsky,

457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) and

Rendell-Baker, 457 U.S. 830. Furthermore, the ambiguity of

the legal rationale used by the Second Circuit has ren-

dered its subsequent application problematic. (See Peti-

tioners’ Exhibit A at 12-13 and n. 6). Janusaitis is indeed

“less than compelling precedent” to apply to the

15

McGregor Volunteer Fire Department. (Petitioners’ Exhibit

A at 13).

5. Summary

The Fifth Circuit correctly held that under the facts

and the law applicable to this case, fire protection is not

an exclusive governmental function to be imposed upon

the City of McGregor, a home-rule municipality under the

laws of the State of Texas, and that the MVFD is not a

state actor for purposes of the Petitioners’ suit under

§1983. Furthermore, as noted by the appellate court, the

MVFD would not be deemed to be a state actor under any

other formulas developed by this Court. (Petitioners’

Exhibit A at 13, citing Jackson, 419 U.S. at 351; San Francisco

Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522,

556, 107 S.Ct. 2971, 2991, 97 L.Ed.2d 427, 460-61 (1987)

(Brennan, J. dissenting)). The MVFD was not a state actor

and the Fifth Circuit correctly affirmed the summary

judgment granted by the district court in the depart-

ment’s favor.

¢

CONCLUSION AND PRAYER

The McGregor Volunteer Fire Department, a volun-

teer organization of individuals, chose to revoke the

membership of four persons whose conduct had seriously

jeopardized the atmosphere of discipline and camara-

derie so essential to the functioning of a fire-fighting

team. Consequently, the City of McGregor, the MVFD and

16

members of the department found themselves as defen-

dants in a lawsuit alleging violations of the Petitioners’

constitutional rights. Under Texas law, the City of

McGregor was not required to provide fire protection,

and the MVFD’s fire protection activities cannot be fairly

characterized under the uncontroverted evidence of this

case as an exclusive governmental function of the City of

McGregor, Texas. No state action was implicated when

the majority membership of the volunteer fire department

voted overwhelmingly to remove the unwelcome influ-

ence of the Petitioners from their ranks. The Fifth Circuit

properly affirmed the summary judgments granted by the

District Court of the Western District of Texas and cor-

rectly held that the Petitioners did not raise a fact issue

supporting their assertion that the MVFD was a state

actor or an agency of the City of McGregor.

Under any set of guidelines used by this Court for

deciding whether to exercise its judicial discretion and

grant review on writ of certiorari, this case does not

warrant such review. The Petitioners fail to demonstrate

the existence of any issue worthy of writ of certiorari

from this Court. The district court’s granting of the defen-

dants’ motions for summary judgment was proper, and

the Fifth Circuit correctly affirmed that judgment.

Accordingly, the McGregor Volunteer Fire Department,

Respondent, asks this Court to deny the petition for a

17

writ of certiorari, and further requests all other relief to

which it may be entitled.

June 25, 1993.

Respectfully submitted,

SUSAN KELLEY-CLAYBROOK

Counsel of Record

HERBERT S. Bristow

Ha.ey, Davis, WreEN, Bristow &

Rasner, P.C.

510 N. Valley Mills Drive,

Suite 600

Waco, Texas 76710

(817) 776-3336

Counsel for Respondent

McGregor Volunteer Fire

Department