Opposition Brief — Policastro v. Kontogiannis (No. 07-1341)

, 3.999

No. 07-1341 ; tee 2S 2008

ERK

IN THE

Supreme Court of the United States

ANDREW POLICASTRO,

Petitioner,

v.

THEODORA P KONTOGIANNIS, Principal Tenafly

High School; TENAFLY BOARD OF EDUCATION,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

ARTHUR R. THIBAULT JR.

APRUZZESE, McDERMOTT,

Mastro & Murpny, PC.

25 Independence Boulevard

PO. Box 112

Liberty Corner, NJ 07938

(908) 580-1776

Attorneys for Respondents

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

1

QUESTIONS PRESENTED

1. Does the First Amendment allow public school

teachers to place a memo (private speech) in the teacher

mailboxes?

2. Can a “plain vanilla” memo placed in the teacher

mailboxes cause a “material and substantial disruption”?

3. Is a prior approval policy Constitutional

(regarding teacher free speech in the teacher mailboxes)

without any guidance on denial?

4. Can a pro se First Amendment lawsuit be moot

for lack of damages when damages are clearly on the

record but not in the original complaint?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

REASONS FOR DENYING THE PETITION

THE THIRD CIRCUIT CORRECTLY

CONCLUDED THAT PETITIONER’S

FIRST AMENDMENT FREE SPEECH

CLAIM WAS MOOT AND NON-

JUSTICIABLE IN LIGHT OF

PETITIONER'S ACKNOWLEDGMENT

THAT HE DOES NOT SEEK DAMAGES

. THE THIRD CIRCUIT CORRECTLY

CONCLUDED THAT TENAFLY’S

POLICY, WHICH REGULATES ITS

EMPLOYEES’ USE OF THE

MAILBOXES FOR PERSONAL, NON-

SCHOOL RELATED BUSINESS IS

NOT OVERBROAD

iil

Contents

III. PETITIONER'S FIRST AMENDMENT

CLAIM DOES NOT PROVIDE A BASIS

TO GRANT THE PETITION SINCE

THIS CLAIM WAS NEVER

ADDRESSED BY THE THIRD

CIRCUIT

CONCLUSION

iv

Contents

Proposition ITT:

Certiorari Should be Denied Because The

Tenth Circuit Properly Applied Oklahoma

Law Pursuant to the Erie Doctrine When

It Determined that the Loan Agreement

was not Modified

A. Petitioner Misstates the Tenth

Circuit’s Ruling

The Tenth Circuit Properly Applied

Oklahoma Law to the Facts of the

Conclusion

Vv

Cited Authorities

Perry Education Assn.

v. Perry Local Educators’ Assn.,

460 U.S. 37, 103 S. Ct. 948 (1983)

Rhodes v. Stewart,

488 U.S. 1 (1988)

Texas State Teachers Assn.

v. Garland Independent School District,

777 F.2d 1046 (1985) aff'd,

479 U.S. 801 (1986)

1

Petitioner requests that this Court exercise its

discretionary powers and review the Third Circuit Court

of Appeals’ decision holding that Petitioner’s First

Amendment free speech claim was moot and that the

Tenafly Board of Education’s mailbox policy was not

constitutionally overbroad facially or as-applied to him.

There is no reason, and Petitioner has offered none, to

grant certiorari. There is no circuit split on these

holdings. The Third Circuit’s decision does not conflict

with any decision of this Court. Instead, Petitioner seeks

to invoke this Court’s supervisory power simply because

he asserted a First Amendment free speech claim.

Petitioner acknowledged during trial at the District

Court and before the Third Circuit that he was not

seeking damages for the alleged First Amendment free

speech violation. Given that Petitioner waived any claim

for damages the Third Circuit correctly held that his

First Amendment free speech claim was moot. An

appellate decision favorable to the Petitioner would not

have required any action on the part of Respondents.

It would be no more than a “moral victory” for Petitioner.

Petitions for certiorari are not granted so that a litigant

can obtain an advisory opinion and a “moral victory.”

Therefore, the petition for certiorari should be denied.

STATEMENT OF THE CASE

This case arises out of Petitioner Andrew

Policastro’s contention that he has the right, under the

freedom of speech provision of the First Amendment of

the United States Constitution, to indiscriminately use

the teachers’ mailboxes at the Tenafly High School to

distribute anything he chooses. The First Amendment

provides no such right.

2

Petitioner is a teacher at the Tenafly High School.

On March 13, 2002 a memo concerning a private

grievance that 13 teachers had with their union was

distributed to all staff members through the teachers’

mailboxes at Tenafly High School. The memo, entitled

“Questions for the Tenafly Negotiations Team” posed

questions about the proposed contract and the union’s

negotiation strategy that the thirteen signatories had

for and about the teachers’ union negotiating team.

Petitioner was one of the 13 teachers to sign the memo

distributed. The memo was placed in the teachers’

mailboxes at Tenafly High School between 8:15 and 8:30

a.m., during a regular school day. March 13, 2002 also

happened to be ratification day of the new collective

negotiations agreement between the teachers union and

the school board.

The trial record established that the memo had

nothing to do with the students or the curriculum at

Tenafly High School, but merely set forth 13 teachers’

disagreement with the teachers’ union negotiating

strategy. A maelstrom of discontent ensued among

teachers and other staff members, the exact reaction

the signers of the document intended, except that it

happened during school hours rather than at the union

meeting that afternoon. The high school became

engulfed in controversy; staff began to discuss the

memo, agitated and upset with its contents. Teachers

called other teachers and union leaders to complain,

some within the high school and some without the high

school.

3

Complaints also were made to the high school

principal, Dr. Theodora Kontogiannis, over distribution

of the memo. Kontogiannis was informed that the memo

was causing an “alarming amount of discussion” which

was disrupting the normal academic flow in the library

and elsewhere while students waited to be

accommodated by the teaching staff. Alarmed by the

atmosphere that this memo had created in her school

and desirous to return the employees to their task at

hand, i.e. education of students, Dr. Kontogiannis

removed the memo from the mailboxes and locked the

mailroom door until the end of the school day.

Policastro, as one of the signers of the memo,

contended that his right to free speech was violated by

Dr. Kontogiannis’ actions. He also complained that the

Tenafly Board of Education’s policy regulating the use

of the mailboxes by its employees was overbroad and

therefore violative of the First Amendment.

Following a one day bench trial, District Court Judge

Joel A. Pisano found that the actions of Dr. Kontogiannis

were reasonable and constitutionally permissible based

on the facts of the case and concluded that a disruption

had occurred at the high school that morning which

threatened to interfere with school operations. Further,

Judge Pisano concluded that the policy regulating

personal use of the mailboxes by the Board’s employees

was reasonable. Therefore, he entered judgment in

favor of the Respondents.

4

The Third Circuit affirmed the District Court,

finding that the mailbox policy was not overbroad,

holding

We agree that the record fails to show that the

Mailbox Policy has had an actual or potential

chilling effect on teacher speech. Policastro

admits that “[sJince the removal of the memo..

use of the mailboxes by teachers for personal

messages (memos, notes, cards, etc.) has

continued as usual, without prior approval.”

Policastro brief at 5. Accordingly we will affirm

the District Court’s denial of Policastro’s

overbreadth challenge. Policastro v.

Kontogiannis, 2008 U.S.App. LEXIS 1387, at

*6 (3d Cir. Jan. 24, 2008).

The Third Circuit also affirmed dismissal of Petitioner’s

as-applied challenge to the mailbox policy, finding that

there was no evidence that the policy had been applied

to Petitioner or that he had suffered any injury as a

result of the mailbox policy.

Petitioner’s claim that his right to free speech under

the First Amendment was violated was also analyzed

by the Court of Appeals. Noting that Petitioner did not

seek damages but sought declaratory and injunctive

relief only, the Third Circuit dismissed the claim as non-

justiciable. In this regard, the Court of Appeals noted

that injunctive relief was unavailable and that

“declaratory relief would amount to no more than an

advisory opinion regarding the “wrongfulness” of past

conduct.” /d. at *10 (citing Green v. Branson, 108 F.3d

1296, 1299-1300 (10° Cir. 1997)) Thus, the District

5

Court’s holdings on the facial and as-applied challenge

to the mailbox policy were affirmed and Petitioner’s

First Amendment claim was dismissed as moot.

SUMMARY OF ARGUMENT

The central issue presented is whether the Third

Circuit was correct to dismiss Petitioner’s claim that his

First Amendment right to free speech was violated,

holding that since damages were not sought, the issue

was moot. Yet Petitioner spends little to no time in his

Petition addressing this holding. No case law was cited

from this Court or any other sister Circuit to

demonstrate that the Third Circuit’s decision is in

conflict with established law. In short, Petitioner fails to

show that the Third Circuit’s ruling is erroneous in

manner to warrant the exercise of this Court’s

supervisory review powers.

From the earliest time in our country’s

jurisprudence, this Court has recognized that Article

III of the United States Constitution requires that

federal courts decide an actual case and controversy

between the parties. Federal courts are not empowered

to render advisory opinions, speculating on what may

happen in the future. While exceptions to this rule have

been established, none fits within the facts of this case.

Petitioner also argues that the mailbox policy is

overbroad and that he should not have to request

permission to distribute personal, non-school business

materials through the mailboxes. While Petitioner

appears to conflate a vagueness challenge and an

overbreadth challenge, the First Amendment does not

6

entitle Petitioner to arbitrary and unfettered use of

Tenafly’s teachers’ mailboxes. The policy on use of the

teachers’ mailboxes is reasonable. It does not prohibit

speech, but merely ensures that the mailboxes are used

for their intended and primary purpose — school

business. The Third Circuit correctly ruled that the

policy was not overbroad and was a reasonable

regulation of the use of a non-public forum.

REASONS FOR DENYING THE PETITION

THE THIRD CIRCUIT CORRECTLY

CONCLUDED THAT PETITIONER’S FIRST

AMENDMENT FREE SPEECH CLAIM WAS

MOOT AND NON-JUSTICIABLE IN LIGHT OF

PETITIONER’S ACKNOWLEDGMENT THAT

HE DOES NOT SEEK DAMAGES

Petitioner spends the majority of his petition citing

to First Amendment case law involving the free speech

rights of students in public schools and pays little

attention to the issue of whether his claimed violation

of the First Amendment is justiciable in the first

instance. The Third Circuit’s holding on the justiciability

of Petitioner’s First Amendment free speech claim was

correct since Petitioner acknowledged at trial, before

the Third Circuit, and admits in his Petition that he does

not want money from this lawsuit. The Court of Appeals

opinion on this issue is in accord with Supreme Court

precedent.

This Court has consistently held that “federal courts

are without power to decide questions that cannot affect

the rights of litigants in the case before them.” North

7

Carolina v. Rice, 404 U.S. 244, 246 (1971). The lack of

power to review moot cases derives from the

requirement of Article III of the Constitution that there

be an actual case and controversy to adjudicate. Lewis

v. Continental Bank Corp., 494 U.S. 472 (1990). When

relief cannot be afforded to a litigant through the

issuance of a judicial opinion, it amounts to no more than

an advisory opinion, which the federal courts have long

held they will not issue. See Rice, supra, at 246.

In the case at bar, Petitioner is seeking what would

amount to an advisory opinion from this Court that

Respondents’ actions over 6 years ago violated the First

Amendment. Yet, such an opinion does not require the

Respondents to take any action since Petitioner does

not seek damages as a redress. The facts of record

demonstrate that the removal of the memo on March

13, 2002 was a one-time incident based on the events

that transpired that morning at the high school. No

memos had ever been removed before that date and

none had been removed at the time that matter was tried.

In other words, in the absence of a claim for damages

for that one incident 6 years ago, which Petitioner does

not seek, his claim of a violation of the First Amendment

is moot. Quoting this Court, the Third Circuit recognized

that “[t]he real value of the judicial pronouncement —

what makes it a proper judicial resolution of a ‘case or

controversy’ rather than an advisory opinion — is in the

settling of some dispute which affects the behavior of

the defendant toward the plaintiff.” Rhodes v. Stewart,

488 U.S. 1, 4 (1988) (quoting Hewitt v. Helms, 482 U.S.

755, 761 (1987)) (emphasis in original).

8

Petitioner might achieve some moral victory with

an advisory opinion, but that moral victory would not

require Respondents to take any action to account for

the removal of the memo on March 13, 2002. Nor can it

be said that the same set of circumstances, incident and

conduct might arise in the future, thereby invoking the

“capable of repetition, but evading review” exception

to the mootness doctrine. Whatever may occur in the

future relative to the teachers’ mailboxes in Tenafly or

elsewhere can be judged and decided on the facts and

circumstances of that matter since any inquiry into a

violation of the First Amendment is fact-sensitive. See,

e.g., Defunis v. Odegaard, 416 U.S. 312, 319 (1974).

Review of the Third Circuit’s holding is unnecessary as

it is in accord with established case law and the Petition

presents no reason to review the Court of Appeals’

mootness determination.

Il. THE THIRD CIRCUIT CORRECTLY

CONCLUDED THAT TENAFLY’S POLICY,

WHICH REGULATES ITS EMPLOYEES’ USE

OF THE MAILBOXES FOR PERSONAL, NON-

SCHOOL RELATED BUSINESS IS NOT

OVERBROAD

The Petition contends that the Tenafly mailbox

policy is overbroad and should be declared

unconstitutional because it requires prior approval from

the school building principal before distribution of

personal, non-school business items. Petitioner’s brief

conflates an overbreadth challenge with a vagueness

challenge. Nonetheless, the onlv issue is whether the

Third Circuit correctly concluded that the policy was

not overbroad on its face or as-applied.

9

The Tenafly Board of Education’s Administrative

Manual for Teachers explains that “Mailboxes are the

property of the Tenafly Board of Education and should

be used for school business.” Staff members, including

teachers, who wish to distribute “flyers/announcements,

etc. (via the mailboxes) must have prior approval from

the principal or vice-principal.”

An individual may challenge a regulation or policy

under the First Amendment overbreadth doctrine,

because “[its] very existence may cause others not

before the court to refrain from constitutionally

protected speech or expression.” Broderick v.

Oklahoma, 413 U.S. 601, 612 (1978). As the Third Circuit

noted in its opinion below, “avoidance of this chilling

effect is at the heart of the overbreadth doctrine.”

Gasparinetti v. Kerr, 568 F.2d 311, 317 (8d Cir. 1977).

A court must consider that the overbreadth doctrine is

“strong medicine” that should be used “sparingly and

only as a last resort.” Jd. at 613. In that vein, “a single

impermissible application” is insufficient to deem a

policy invalid, New York v. Ferber, 458 U.S. 747, 772 (1982)

(internal quotation marks and citation omitted), and

instead, “a law should not be invalidated for overbreadth

unless it reaches a substantial number of impermissible

applications.” Jd. at 771.

The Tenafly mailbox policy is a reasonable regulation

of a non-public forum; thus Tenafly’s regulation and

control over the use of its mailboxes does not violate

the First Amendment. A policy challenged on its face as

everbroad must be analyzed dependent on the nature

of «he forum. Property that is a non-public forum may

be reserved by the government for its intended

10

purposes “as long as the regulation on speech is

reasonable and not an effort to suppress expression

merely because public officials oppose the speaker’s

view.” Perry Education Assn. v. Perry Local Educators’

Assn., 460 U.S. 37, 46, 103 S. Ct. 948 (1983). In other

words, the restriction on speech must not discriminate

based on viewpoint and must be reasonable in light of

the purpose served by the forum. Cornelius v. NAACP

Legal Defense & E'd. Fund, Inc., 473 U.S. 788, 806 (1985)

(holding that prior restraints in nonpublic forums are

permissible when reasonab‘e and viewpoint neutral).

The Third Circuit affirmed the District Court’s

findings that the policy had no actual or potential chilling

effect on First Amendment rights. Importantly, the trial

record was replete with examples that both before and

after the incident on March 18, 2002, teachers, including

Petitioner, distributed personal items through the

mailboxes. In fact. the record reflects that Petitioner

utilized She mailbuxes to distribute personal items only

one time hefore March 13, 2002, but two or three times

after that date. Petitioner acknowledged to the Third

Circuit that teacher use of the mailboxes for personal

items continued without prior approval. Thus, Petitioner

can hardly argue that the policy or actions of Dr.

Kontogiannis “chilled” his First Amendment rights to

free speech. That Petitioner does not want to seek

permission to distribute personal, non-school business

material through the mailboxes does not make Tenafly’s

policy unconstitutionally overbroad.

Further, the Third Circuit found support in the

record for the District Court’s conclusions that no one

was ever denied permission to use the mailboxes; that

11

no perse.al item had ever been removed from the

mailboxes but the subject memo; and that, as Dr.

Kontogiannis testified, the mailboxes are the primary

way in which administration, parents and students

communicate with teachers. Thus, the regulation is

reasonable in light of the purpose served by the forum.

The mailboxes are, unequivocally, for school business.

Regulation over what and how much personal, non-school

business materials are distributed through the

mailboxes is necessary lest the teachers’ mailboxes

become inundated with flyers, memos, advertisements,

personal notes, solicitations of all kinds and other non-

school business related documenis. It is not difficult to

imagine that without some control over what and how

much is placed in teacher mailboxes, important

announcements from administration officials could go

unnoticed or be discarded by teachers as simply junk

mail. “[R Jestrictions on speech in a non-public forum may

be imposed if it is reasonable to anticipate that

interference with the [purpose of the forum] may occur,

even though it has not yet occurred.” Paffv. Kaltenbach,

204 F3d 425, 433 (3d Cir. 2000) (emphasis in original).

The Tenafly pelicy ensures that the building principal

retains control over the use of teachers’ mailboxes so

that announcements which need to get to the teaching

staff will get to them. The policy on its face is viewpoint

neutral and is in accordance with settled law.

Petitioner’s advocation for unfettered use of the

mailboxes for any purpose so long as the communication

is not lewd or vulgar misses the point. In a school

environment, such communication can always be

prohibited. To provide the access to the mailboxes for

which Petitioner urges would turn the mailboxes into a

12

repository for distribution of every conceivable personal

communication, from the sale of personal items to new

business opportunities to rental] properties available.

The possibil‘ties are endless.

When considering the reasonableness of the policy,

the Court must recognize that Petitioner has access to

alternative channels of speech. Teachers and staff can

communicate with one another via U.S. mail, in-person,

by telephone, outside the workplace, during non-

working time in the school, such as lunch, in teacher

offices, faculty rooms or utilize the teacher bulletin board

in the attendance office. Unrestricted access to the

teachers’ mailboxes is not required under the First

Amendment merely because it may be the most efficient

way of communication with other teachers. Cornelius,

473 U.S. at 809 (1985). The First Amendment is not

violated by Tenafly’s retention of control over a non-

public forum. Perry, 460 U.S. at 45.

The cases relied on by Petitioner are inapposite to

the Tenafly policy. In Texas State Teachers Assn. v.

Garland Independent School District, T77 F.2d 1046,

1055 (1985) aff’d, 479 U.S. 801 (1986), the Fifth Circuit

held that a district policy, which permitted teachers to

use the internal mail system to communicate with each

other for any reason, except for subjects involving

employee organizations, was unconstitutional. The

Garland policy could not pass a reasonableness standard

because it prohibited speech based on content. Tenafly’s

policy is viewpoint neutral. Likewise, Petitioner’s

reliance on cases involving public fora is misplaced since

the Tenafly’s teachers’ mailboxes are not equivalent to

a public street.

13

Finally, the Third Circuit affirmed the District

Court’s finding that Kontogiannis removed the memo

on March 13, 2002 hecause of the disruption with the

teachers and the school’s operation that morning. The

record was devoid of evidence that Kontogiannis relied

upon the mailbox policy to support the action she took.

As such, there is no evidence that the policy was ever

applied to Petitioner or that he was injured by such an

application. Thus, there is no compelling reason to

review the Third Circuit’s holding that the mailbox policy

is not overbroad and is not overbroad as applied to

Petitioner.

III. PETITIONER’S FIRST AMENDMENT CLAIM

DOES NOT PROVIDE A BASIS TO GRANT

THE PETITION SINCE THIS CLAIM WAS

NEVER ADDRESSED BY THE THIRD

CIRCUIT

Although the Petitioner devotes the majority of his

petition to the claim that his First Amendment rights

were violated when the memo was removed from the

mailboxes, the Third Circuit Court of Appeals did not

reach this issue since it found Petitioner’s claim moot.

Therefore, Respondents will not address an issue that

was not addressed by the Court of Appeals.

14

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

ARTHUR R. THIBAULT JR.

APRUZZESE, MCDERMOTT,

Mastro & Murpuy, PC.

25 Independence Boulevard

PO. Box 112

Liberty Corner, NJ 07938

(908) 580-1776

Attorneys for Respondents