Reply Brief — LaFlamme v. Essex Junction School District

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No. 00-0173

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In The ea |

Supreme Court of the _ptate a

STANLEY LAFLAMME,

Petitioner,

ESSEX JUNCTION SCHOOL DISTRICT,

Respondent.

5

On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of Vermont

REPLY BRIEF

Epwin L. Hosson,

Counsel of Record

289 College Street

Burlington, Vermont 05401

(802) 863-2000, Fax (802) 651-7396

COCKLE LAW BRIEF PRINTING CO., (800)

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

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Petitioner’s Reply to Brief in Opposition........... 1

I. Alleged Supreme Court Rule 15.2 Misstatements

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II. The Claim that the Petition Does Not Present an

Issue Addressed by the Vermont Supreme Court

<ahChn The ESWAK SRA wR DON CAs aMESR ASL CONS EDC SOs 5

III. Petitioner Has Asserted that He Has Been

Deprived of a Federally Protected Property

Right or Liberty Interest...................... 6

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TABLE OF AUTHORITIES

Page

FEDERAL CASES 4

Adams v. Robertson, 520 U.S. 83, 117 S. Ct. 1028, 137

me SS oi. og ere error 6 j

Dejonge v. Oregon, 299 U.S. 353 (1957). .....cccccnees 6

Eivod v. Busns, 427 US. 947 (2976) ... cc cvcevdenvavens 7

Fisk v. Kanone, Z74 U2 Be TAPE so vv eevervasdcenian 6

Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13

L. Ed. 2d 125 (1964)..........cccececerecaceccscsns 7 |

Hadnot v. Amos, 394 U.S. 358, 89 S. Ct. 1101, 22 |

ee 8: Ff: eer eee ee eee 7 |

Hyland v. Wonder, 972 F.2d 1129 (9th Cir. 1992) cert. |

Genied, SOG US. BOB ias 655010 44846 7

Little v. City of North Miami, 805 F.2d 962 (11th Cir.

ROG ckvdceweusadeesuseensebieseee Ppa 6 |

Reeves v. Sanderson Plumbing Product, __ U.S. __,

120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)........... 4

Snowden v. Hughes, 321 U.S. 1 (1944)................. 6

StaTE CASES

Claude G. Dern Electric v. Bernstein, 144 Vt. 423, 479 |

A.28 136 (3986 oo ceccishi beeen eee 4

Jackson v. Rogers, 120 Vt. 138, 134 A.2d 620 (1957) ..... 4

Lemnah v. American Breeders Service, 144 Vt. 568,

462 A.20 706 CA98R vin oa cee ee 4

Lent v. Huntoon, 143 Vt. 539, 470 A.2d 1162 (1983) ..... 4

Wood v. Wood, 166 Vt. 608, 693 A.2d 673 (1997) ...... 4

iii

TABLE OF AUTHORITIES - Continued

Page

FEDERAL Court RUuLEs i

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State Court RuLes

Te as Shc ves Xo od woke Seas 4

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1

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

The Petitioner was censured for speaking out on

public issues without notice and opportunity to be heard.

The issue raised by the request for writ of certiorari is

whether Petitioner was entitled to due process of law.

I. Alleged Supreme Court Rule 15.2 Misstatements of

Fact.

The Defendant alleges that Petitioner made two mis-

statements of fact in the Petition.

1. “’The Defendant issued an official govern-

mental censure without due process in retalia-

tion for [P]etitioner’s speaking out on public

issues...’ Petition 12.”

Opposition, p. 3. The Defendant points to the Censure

Motion, and argues “[o]nly one of those reasons was

related to Petitioners’ comments.” Id.

The Defendant quotes its board chair in saying that

the Petitioner’s public remarks at the May 23rd Village

Trustee meeting were “the last straw.” Opposition, pp.

3-4, n. 2. Hence, by Petitioner’s own admission here, the

Petitioner’s protected public speech at the Village Trustee

meeting was a motivating factor in the censure.

Moreover, the censure resolution itself specifically

points to the Petitioner’s attendance and statements as

the cause, beginning “[a]fter viewing the tape of the

Village Trustees meeting of May 23, the consensus of the

members present . . . was to protect the public’s interest

by censuring” the Petitioner. The censure goes on to

recite four specific instances of the Petitioner’s political

speech as the subject of the censure.! Appendix p. 21. The

fact that the censure was approved just based on viewing

a tape of the Petitioner at the Trustees’ meeting is noted

in the Committee minutes. Appendix pp. 39-43. Other

claims of misconduct were added later.?

12. ...”“Mr. LaFlamme spoke publicly against the board-

approved draft budget. He also supported the village trustees in

opposing the Union High School at their May 23 meeting

despite the unanimous vote of the Prudential Committee to

support the Union.” 3. ... “Mr. LaFlamme has made public

unsubstantiated allegations....” 4. ... “Mr. LaFlamme

corroborated the inaccurate data presented at the trustees

meeting, and his statements about teacher job security were not

factual.” 5. ... “Mr. LaFlamme invited the trustees to make

their presentation at the Prudential Committee hearing... . ”

Appendix, p. 22-23.

2 Testimony of Board Secretary Soule, Transcript September

3, 1995, p. 128 1. 22 - p. 129, 1. 7, p. 129 1. 13 - p. 130 1. 4:

Q And at that meeting, the Trustees - the Prudential

Committee watched the tape of the Trustees meeting?

A Yes.

Q Okay. And after that the trust - the Prudential

Committee decided to censure Mr. Laflamme [sic]?

A After we watched the tape?

Q Yes.

A Is that the question? We - we had a discussion

that there would be a censure if legal counsel was in

approval.

**+*

Q And you also decided at that meeting to contact

other members of the Prudential Committee to get

other policies or anything that you felt should be

included in the censure, isn’t that correct?

ii

The second alleged misstatement is claimed as fol-

lows: ae

2. “At trial, the Defendant made no objection

to the substance of the trial court’s instructions

to the jury.” Petition 10.

Opposition at p. 3. While Defendant opposed any due

process instruction, Defendant made no objection to the

substance of the due process instructions given.* The

A_ As part of the discussion, all the other members of

the Prudential Committee was — were there that night.

Q Right.

A And as part of the discussion, we were requested

to give material to Miss Mooney.

Q Okay. And you were to get Miss Mooney any

policies or anything that people felt should be

included in the censure, correct?

A Correct.

3 The Defendant’s only preserved objection to the due

process charge was as follows:

Next, we object on that same page to the charge, the

plaintiff’s third (unclear), for violation of his

Constitutional rights by depriving him of liberty

without due process of law. Should not have been

charged to the jury. We don’t believe that we were

properly noticed and did not consider it an action or

claim that plaintiff was bringing. It had not been

raised in this action at any time before the Judge

mentioned it in chambers after hearing a portion of

the evidence by plaintiff’s counsel or at any other

time. It appears only in one phrase in or (unclear) in

the complaint, paragraph 18, specifically, which

plaintiff has identified.

Transcript, Attorney Thomas Higgins, September 4, 1997, p. 318,

ll. 14-25.

instructions are therefore taken as a correct statement of

law,* and the verdict sustained if supported by the evi-

dence. Though Defendant made an initial, vague objec-

tion, Defendant did not renew its objection, nor request a

limiting instruction on the evidence. Compare, Vt. R. Evid.

103, 105.

Absent an objection to the substance of the jury

instructions, a court must determine on all the evidence

whether “there is no legally sufficient evidentiary basis

for a reasonable jury to find for that party on that issue.”

Reeves v. Sanderson Plumbing Prod., ___ U.S. ___, 120 S. Ct.

2097, 2109, 147 L. Ed. 2d 105, 121 (2000), quoting Fed. R.

Civ. P. 50(a); accord, Claude G. Dern Elec. v. Bernstein, 144

Vt. 423, 426, 479 A.2d 136, 138 (1984). The explicit motiva-

tion to punish the Petitioner for his political speech pro-

vides a legally sufficient basis for a right to due process.

That motivation appears even on the surface of the cen-

sure and is admitted here by Defendant. |

It is the controlling law of this case that the trial court

correctly set out the elements of due process as acting

under color of law, the Defendant deprived the Petitioner

of liberty without due process of law. Appendix. pp.

47-48.

4 Vt. R. Civ. P. 51(b); Wood v. Wood, 166 Vt. 608, 608-609, 693

A.2d 673 (1997). Where there was no objection to the substance

of the court’s instructions, the Court’s charge to the jury

becomes the controlling law of the case. Lemnah v. American

Breeders Serv., 144 Vt. 568, 573-74, 482 A.2d 700 (1984); Jackson v.

Rogers, 120 Vt. 138, 144, 134 A.2d 620, 623 (1957); see Lent v.

Huntoon, 143 Vt. 539, 554, 470 A.2d 1162, 1172 (1983).

II. The Claim that the Petition Does Not Present an

Issue Addressed by the Vermont Supreme Court

Defendant’s underlying claim is that the Petitioner

seeks review for impingement of his right of free speech

that was not properly presented to or addressed by the

Vermont Supreme Court. The Petitioner concedes that the

Vermont Supreme Court did address the Petitioner’s

claim, albeit in what Defendant describes as “one para-

graph.” Opposition, p. 7. In fact the Court addressed the

issue directly and in some detail, ruling that the Peti-

tioner’s failure to prevail on his claim of prior restraint

prevented him from arguing retaliation in the due pro-

cess claim. Appendix pp. 30-31.

In the Vermont Supreme Court, the Petitioner exten-

sively briefed the standard of review, the evidentiary

basis, and the “stigma plus” analysis that “the censure

was motivated by an effort both to punish free speech

and in an effort to stifle future free association and

speech, the conduct is actionable even for a volunteer

position”>, the last issue consuming pages 18-25 of its

brief. The Petitioner also filed a Motion to Reargue on the

grounds that the Vermont Supreme Court had denied the

Petitioner the right to trial by jury in treating the adverse

verdict on the prior restraint issue as dispositive of the

motive for the censure on the due process claim. The

Petitioner has always presented this case as a retaliation

case, and specifically argued at trial the “stigma plus

> Petitioner’s Brief before the Vermont Supreme Court, pp.

18-19.

|

analysis” of Little v. City of Miami,© which is a case

directly on point to the facts here.

Since the Petitioner fully presented the issue to the

Vermont Supreme Court, and the Vermont Supreme

Court explicitly ruled, the Petitioner has complied with

both of the alternate standards of Adams v. Robertson, 520

U.S. 83, 86, 117 S. Ct. 1028, 1029, 137 L. Ed. 2d 203 (1997).

III. Petitioner Has Asserted that He Has Been

Deprived of a Federally Protected Property Right

or Liberty Interest

The Defendant also argues that no federal rights are

implicated, because the Petitioner has no protected lib-

erty or property interest in his office, relying on Snowden

v. Hughes, 321 U.S. 1, 7 (1944), rehearing denied, 321 U.S.

804 (1944). The Snowden Court ruled that misapplication

of a facially neutral state statute to a candidate for public

office, with nothing more, did not violate the Fourteenth

Amendment. The Court took pains to note that no other

constitutional violation or discrimination was alleged.

Snowden involved no implication of First Amendment

or other activity protected by the Bill of Rights through

the Fourteenth Amendment. The rights of Free Speech

and Free Assembly apply to the states through the Four-

teenth Amendment. See, e.g. Fisk v. Kansas, 274 U.S. 380,

387 (1927); DeJonge v. Oregon, 299 U.S. 353, 364 (1937).

Where First Amendment rights are implicated as to state

officers, state officials are subject to an action under the

6 Little v. City of North Miami, 805 F.2d 962, 967-968 (11th

Cir. 1986); Transcript, September 4, 1997, argument of Edwin

Hobson in chambers.

Fourteenth Amendment by candidates or even voluntary

state employees. Hadnot v. Amos, 394 U.S. 358, 364, 89

S. Ct. 1101, 1104, 22 L. Ed. 2d 336 (1969); Elrod v. Burns,

427 U.S. 347 (1976) (patronage employees not protected

against dismissal are protected when dismissed for exer-

cise of First Amendment rights); Hyland v. Wonder, 972

F.2d 1129, 1135 (9th Cir. 1992) cert. denied, 508 U.S. 908

(volunteer protected against dismissal for exercise of First

Amendment rights).

Punishing an elected school board member for speak-

ing out publicly on school board matters is repugnant to

the First and Fourteenth Amendments. “[S]peech con-

cerning public affairs is more than self-expression; it is

the essence of self-government.” Garrison v. Louisiana, 379

U.S. 64, 74-75, 85 S. Ct. 209, 216, 13 L. Ed. 2d 125 (1964).

¢

CONCLUSION

This case presents the question of whether an elected

member of a governmental body can be subject to official

discipline without due process of law because he spoke

out on public issues. As the Courts of Appeal and the

Vermont Supreme Court have reached different answers

to this important question of due process, this Court

should grant this Petition for Writ of Certiorari.

Respectfully submitted,

Epwin L. Hosson

Attorney at Law

289 College Street

Burlington, Vermont 05401

(802) 863-2000

Attorney for Petitioner