ST. LOUIS v. PRAPROTNIK

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ORAL ARGUMENT OF JAMES J. WILSON ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We will hear argument first this morning in No. 86-772, the City of St. Louis v. Praprotnik.

Mr. Wilson, you may proceed whenever you are ready.

Mr. Wilson: Thank you.

This proceeding, brought under Section 1983, involves the imposition of municipal liability upon the Petitioner for the single isolated act of a city official who lacked general authority in the area and whose action was contrary to the policy of the city.

This is a Monell type case.

In Monell, this Court indicated that it was going to leave to future decisions the full contours of municipal liability.

It is our position in respect to single incidents that this Court has shaped those contours in its decisions in cases such as Owens, Tuttle, and particularly the recent Pembaur decision.

And what this proceeding calls for is an application of those principles to the facts herein.

The facts are largely undisputed.

The Plaintiff was a civil service employee of the City of St. Louis.

He was a planner for our community development commission.

Around 1980, he became embroiled in a dispute with his supervisor.

This led to a 15-day suspension for violation of the secondary employment rule.

He appealed to our Civil Service Commission which reduced that to a reprimand.

In April 1981, because of a change of administrations, the new mayor appointed a Defendant Frank Hamsher as the head of the community development agency.

Approximately one year later, Mr. Hamsher, as director of that agency, transferred the Plaintiff to another City department.

He filed an appeal with the Civil Service Commission.

The Civil Service Commission declined that appeal on the basis that no injury was done to him at that time since this was a lateral transfer.

Subsequent to that, the Plaintiff filed a 1983 action naming three City officials and the City as Defendants.

Defendant Hamsher was one of those named.

The Plaintiff was subsequently laid off from his position some 17 months after the transfer.

He took an appeal from that layoff and that appeal has been deferred awaiting the outcome of this proceeding.

We believe the question is whether or not the acts of the Defendant Hamsher in transferring the Plaintiff fall within the language of Monell which imposes liability for acts which can be said to fairly represent governmental policy.

Now, the court below, the trial court rendered through a jury verdict a judgment against the City of St. Louis.

It exonerated the three individual defendants.

The Court of Appeals in its opinion determined that the jury had found that the act of transfer was a retaliatory act on the part of Defendant Hamsher and he was impermissibly motivated and caused constitutional injury to the Plaintiff who had been exercising his right of First Amendment by appealing to the Civil Service Commission.

The Eighth Circuit determined that the Defendant Hamsher was a policy maker and his action, therefore, in transferring the Plaintiff bound the City of St. Louis so that Monell type liability was imposed upon the City as a policy maker.

It is our position that the crux of this matter involves the distinction between a City official who has the discretion to act.

In this case, the discretion to hire and fire and transfer employees as opposed to the authority of a policy maker.

In this case, it would be the authority to set employment policy for the City of St. Louis.

Clearly, the Defendant Hamsher had the former: the discretionary power to hire, fire and transfer employees.

But nowhere in the record is there presented any evidence that the Defendant Hamsher was a policy maker for purposes of setting the employment policy of the City of St. Louis.

The Court of appeals misconstrued Pembaur.

They adopted in their opinion what has been labeled the final authority test, which the court said was a two-pronged test to determine Monell liability.

Unidentified Justice: Mr. Wilson, may I ask you a question before you get into the more details?

Mr. Wilson: Yes.

Unidentified Justice: Is it your view that the question whether a particular agent of the City is a policy making official is a question of fact or a question of law?

Mr. Wilson: Clearly, a question of law.

Unidentified Justice: So, then it doesn't... and you point is that regardless of what the evidence was, since he didn't... I mean it was with regard to a particular transaction, he could not qualify?

Mr. Wilson: Yes, that would be correct.

The record does not support any imposition of liability upon the City.

Unidentified Justice: And the judge shouldn't have even given the jury the instruction,

"If you find him to be a policy making official. "

That was error, too?

Mr. Wilson: That is correct.

They should have never reached that point.

We do not believe that a submissible case was made under these facts.

Unidentified Justice: Well, Mr. Wilson, the jury was instructed that they could determine in effect whether the named defendants were policy makers; were they not?

That was part of the instructions.

Mr. Wilson: They were instructed that high government officials could be held liable.

Unidentified Justice: And you did not object to that instruction.

In fact, I guess it was one that you prepared?

Mr. Wilson: Yes, that's correct.

Unidentified Justice: But now you say that was wrong?

Mr. Wilson: Yes.

The instructions were totally inadequate, but what we are presenting here and what we have preserved is the error in overruling our motions for directed verdicts which we made at each critical stage in respect to the sufficiency of the evidence to impose under any proper standard liability--

Unidentified Justice: Was there evidence in the record from which the jury might have concluded that the mayor or a member of the mayor's cabinet or council had approved the transfer knowing that it was in retaliation for--

Mr. Wilson: --Well, the jury would have had to follow the instructions, I think.

And the verdict directing instruction only named the three defendants, Hamsher and two other supervisors.

It did not name the mayor--

Unidentified Justice: --Well, I asked you whether there was evidence in the record from which a jury might have concluded that the mayor or member of his council or cabinet had approved the transfer knowing it was in retaliation?

Mr. Wilson: --There is nothing in... my interpretation of the record, there is nothing in there that would support that inference.

There is some allusions to the mayor.

I think there is an allusion that the mayor knew that there was a transfer of functions from one department to another, but that was different than having knowledge particularly of this Plaintiff.

So, our answer would be no, although the mayor was never named in a verdict director by the Plaintiff in this particular instance.

We believe that the test of the final... the final authority test that the Eighth Circuit placed in its opinion is erroneous.

It is contrary to Pembaur.

The delegated authority to act, I think may be categorized as discretion.

And this Court made clear in Pembaur in Part 2(b) that discretion is not enough to impose liability.

If I may quote:

"The official must be responsible for establishing final government policy respecting such activity. "

Aside from the being contrary to Pembaur, the test promoted by the Eighth Circuit in its opinion is unreasonable.

The question of delegating out authority is one that runs throughout all of City officialdom in employment.

We could not conduct business without delegating out discretion to employees all the way down the line.

Also, the second part of the test, the lack of de novo review is equally unreasonable.

There are countless decisions that are made everyday operationally that there is no apparatus to provide review.

As an example, the police officer in Tuttle who was involved in the shooting.

There would have been nothing that would have provided reasonably any review for that act prior to what had occurred.

We believe the test is totally unreasonable, but the main point is that it is contrary to the opinions... most of the opinions that were rendered in Pembaur.

The plurality opinion I think clearly, which relies upon, as a basis the identification of a policy maker.

And the policy maker identification is arrived at by an inquiry into state law as to the authority of that official to set policy.

Here I believe you have a contrast in Pembaur between the official who was held liable and the Defendant Hamsher, who we assert should not have been considered to be a policy maker.

The prosecutor in Pembaur was an elected county-wide official.

The Sixth Circuit had held clearly interpreting Ohio law that he was the chief law enforcement officer for that particular county.

He was not answerable or responsible in respect to any of his conduct, other than to the voters.

There were no parameters or criteria that circumscribed his action.

Here, in respect to Hamsher, our purported policy maker, the record is very sparse; but we do know he is appointed by the mayor.

He is a functionary in respect to approving development plans for the City and in administering community development funds.

Unidentified Justice: Mr. Wilson, as the case comes to us, I gather that the only argument that there is a policy maker here is that it is Hamsher?

Mr. Wilson: Yes.

This is what the Eighth Circuit construed the jury verdict to be: that the Defendant Hamsher made a retaliatory act in transferring--

Unidentified Justice: Does the Respondent argue differently?

Does Respondent identify anyone else as a policy maker except Hamsher?

Mr. Wilson: --The Respondent did in their verdict directing instruction, Your Honor, two other supervisors.

One who succeeded Hamsher.

The evidence is almost non-existent the Defendant Patterson in respect to that?

Unidentified Justice: Well, what does Respondent argue here?

Mr. Wilson: I believe the Respondent--

Unidentified Justice: Just defends the Eighth Circuit decision?

Is that it?

Mr. Wilson: --No.

The Respondent has abandoned the Eighth Circuit decision in respect to the test, the final authority test.

I don't believe the Respondent has abandoned the Eighth Circuit determination and what the jury did was find that Frank Hamsher made an impermissibly motivated unconstitutional act by reason of retaliatory transfer.

That would be our interpretation of the Respondent's brief.

Unidentified Justice: The Eighth Circuit exonerated the other two; did it not?

Mr. Wilson: Yes.

Unidentified Justice: Or did the jury do it?

Mr. Wilson: Well, the jury exonerated all the individual defendants.

And the Eighth Circuit focused in upholding the verdict on the Defendant Hamsher that his single act of transferring was a retaliatory act for filing the Civil Service Appeal.

He is the only one that would have had the ability to have made the transfer under our--

Unidentified Justice: Well, and that that act represented City policy?

Mr. Wilson: --Yes, that's right.

That was their categorization of what the jury had determined.

I think the difference between our prosecutor in Pembaur and the Defendant Hamsher here is: Hamsher's discretion to hire and fire was subject to Civil Service rules and our entire Civil Service system.

He was not unfettered in making employment decisions in respect to his particular employees.

I think there was a number of appeals that the Plaintiff made and that he received relief in the main on those appeals which indicated that Hamsher was not in a position to set policy for his employees.

He had the Civil Service Commission of the City looking over him.

Footnote 12 in Pembaur, the plurality opinion, we believe anticipated exactly the fact situation we have there.

The Court in that opinion hypothesized a county sheriff, a hypothetical county sheriff who, while being the chief law enforcement officer, received rules and regulations in respect to employment from the County Board of Commissioners.

In that hypothetical, that county sheriff, if he committed an unconstitutional act in respect to his employees, it would not impose liability upon the county; although, if he acted in respect to his function as chief law enforcement officer, liability would be imposed.

That is what we believe is exactly what we have in this record in respect to the Defendant Hamsher.

Unidentified Justice: Who was the policy maker in your view in this case?

The Commission?

Mr. Wilson: The Civil Service Commission.

Unidentified Justice: They set the rules of the game about hiring and firing and transferring?

Mr. Wilson: Yes.

We have a charter amendment that specifically sets up a civil service system and it gives our Civil Service Commission rule making authority and they have been recognized--

Unidentified Justice: And people like Hamsher are just... are supposed to take acts consistent with that policy?

Mr. Wilson: --Yes, that's correct.

Unidentified Justice: Mr. Wilson, if your view is correct, why wouldn't it be in the interest of every municipality to confer all policy making authority for everything upon one individual, say, the mayor.

And he can't possibly execute it all, certainly.

So, de facto, a lot of people beneath the mayor are really making policy; but he doesn't know what those policies are in fact.

He just doesn't have the time to set them all.

So, then there would be no municipal policy on any of these things established by the only person authorized by law to establish them and there would never be any 1983 liability.

Isn't that what everybody ought to do?

Mr. Wilson: Well, I guess if I could explain, Justice Scalia.

I believe that that would call into play a second type of Monell liability.

And that is what we would find as custom and usage.

If you delegated out authority and with the passage of time it became open and notorious that there were widespread unconstitutional practices, then I think there attaches liability on the City because the policy maker, the mayor in your hypothetical--

Unidentified Justice: Well, then it is not a question of law, exclusively, as you told us earlier?

Mr. Wilson: --In respect I think to single incident liability.

Now, we are separating out the types of Monell liability.

I think there are three kinds.

There is general rules of application.

I think there is custom and usage.

And then I think there is a third type of liability which I would call single incident liability.

Under Pembaur, I think the threshold question is who is a policy maker and that, we would believe, is purely a question of law.

If we are in the second category, custom and usage and practice, then that would raise a number of factual issues for a jury.

Unidentified Justice: I see.

And you would not have to trace that custom or usage to the knowledge of the policy making official?

Liability would exist whether or not the policy making official knew of the custom or use?

Mr. Wilson: I think that is an open question.

And I think the Fifth Circuit, which rendered an opinion on this particular issue felt that constructive knowledge was enough in that instance to impose liability, constructive knowledge on the part, even though the Fifth Circuit is clearly in conflict with our present decision from the Eighth Circuit because they abandoned what we categorize as the final authority test.

I think the key here is, unlike the prosecutor in Pembaur, Hamsher had substantive constraints upon the scope of his employment decisions.

The dissent in the Eighth Circuit I think captured the significance of these restraints in our appendix to our petition.

The judge stated, Judge Ross stated the Civil Service rules permit appointing authorities discretion in making personnel decisions, but do not grant them the power to set personnel policy.

Unidentified Justice: Where is that?

Mr. Wilson: That's in our brief, in our petition at A-22.

Judge Ross' dissent, which I might add cited the footnote 12 from Pembaur and set the footnote out verbatim indicating his belief that it is squarely on the facts in the present record.

Unidentified Justice: Suppose that it was perfectly plain that the charter or the city council or whoever actually delegated to Hamsher the policy making authority to set the rules of the game.

And he just happened in a particular case to make a retaliatory discharge, quite contrary to his own policy.

Would there be municipal liability then?

Mr. Wilson: Contrary to his own?

Unidentified Justice: Well, certainly, he didn't... certainly, he didn't publish a policy of discriminatory discharges.

Mr. Wilson: No, that is correct.

Unidentified Justice: But he did make a discriminatory discharge and he was the policy maker.

Is there municipal liability there?

Mr. Wilson: Under that hypothetical, we would say, no.

Hamsher would still be circumscribed in the City of St. Louis by the Civil Service Commission rules.

He would not be a policy maker because I think there is other indicia--

Unidentified Justice: You are just not accepting my hypothesis, but that's all right.

Mr. Wilson: --If I may, Justice White?

Unidentified Justice: Go ahead.

Mr. Wilson: If there was a delegation of authority, if it was a lawful delegation, I think you are going to have difficulty finding lawful delegations of authority.

But, assuming there was lawful delegation from the policy maker to another city official, then that city official would take on the responsibilities of a policy maker under Monell.

Unidentified Justice: Well, what if a lower ranking city official assumes the responsibility for making decisions that could be interpreted as policy decisions?

Now, are there circumstances in which the city could be found liable for the exercise of those decisions?

For example, if higher authority knows or should have known about those actions of lower ranking employees?

Mr. Wilson: I think in respect to single incidents, we would say, no, unless the Civil Service Commission in this instance would have had actual knowledge that the transfer was impermissibly motivated.

Unidentified Justice: Or constructive knowledge?

Mr. Wilson: We would say that there would be... clearly, no liability in that particular case.

Now, if you get into a widespread practice over a passage of time that is open and notorious, there we have the question that I think I attempted to answer with Judge Scalia, their constructive knowledge could operate to impose municipal liability, but not in respect to a single incident, unless the policy maker--

Unidentified Justice: What if what is open and notorious is not the particular policy that has been adopted by the delegee, the de facto delegee?

But what is open and notorious is merely the fact of delegation.

Merely the fact that the Civil Service Commission is not making the policies, that it is allowing people out there to establish their own policies.

What if that is open and notorious?

Not the nature of each policy, but just the fact that the mayor or the Civil Service Commission is not running the show.

Mr. Wilson: --If, again, we're in the second category, custom and practice, liability can occur where there is acquiescence by the policy maker.

Unidentified Justice: In the delegation.

In the mere delegation, not in the particular policies adopted.

Mr. Wilson: In the mere delegation?

No.

We would say not.

We would say, again, you would have to look at the state law.

If there is an unlawful delegation, that would not satisfy what we understand the test of Pembaur, the plurality, to indicate.

That you have to look to the authority that has been granted by state statute or city charter or ordinance.

If there were an unlawful delegation, that would not transfer on to the delegee the ability to impose municipal liability.

Unidentified Justice: So the mayor can leave it to somebody and so long as that person does not act consistently enough to establish a policy that becomes open and notorious, there can be no municipal liability.

Is that an accurate statement?

Mr. Wilson: That is our position, yes.

The concurring opinions in Pembaur by Justice White and joined in by Justice O'Connor indicate and they are at variance with the plurality, although I think if applied here would reach the same result, which would be reversal, would indicate that where the law has placed limits on the city official and he acts contrary to and outside those limits, that his acts cannot be considered to be policies of the governmental entity.

Applied here, clearly there was criteria through our Civil Service system and parameters on the Defendant Hamsher.

The Civil Service system has specifically provided in its charter amendment that the system is to be run on merit and fitness based upon service ratings.

There is a right of appeal that has been specifically granted.

I think that right of appeal in a civil service system carries with it by clear implication that you can't retaliate against an employee for exercising his right of appeal.

If you did, you would then be attempting to take away indirectly what the law has conferred directly upon the employee, the right of appeal.

Our rules and regulations forbid discrimination.

It also provides a substantive rule in respect to transfers.

You can't transfer an employee and have them meet a different test of fitness.

Unidentified Justice: Mr. Wilson, can I ask you a question?

I think it is rather important to your position that it be treated a single incident case, because otherwise you might have multiple incidents which amount to a custom.

Mr. Wilson: Yes.

Unidentified Justice: Could it get away from the single incident posture if several times this sort of thing happened to the same individual or would that still be a single incident as long as it is one individual?

Mr. Wilson: Yes.

That is not the record here, but, yes.

I would say that that hypothetical--

Unidentified Justice: If there was several retaliatory adverse actions against this individual, you would say that could amount to policy?

Mr. Wilson: --That would be still an ad hoc decision.

Yes.

Of the policy maker or whatever harm was done.

That would be our position on it.

Because you would have a singular employee involved.

Unidentified Justice: Are you saying that still is a single incident if the same thing happened to Employee X six or seven times that he was constantly treated in this same way.

That would be a single incident or would that amount to a custom.

That is what I am not clear on at all.

Mr. Wilson: I think it might... it would be my position that that would still be a single incident.

Unidentified Justice: What is the difference between six adverse actions for Mr. Smith and one adverse action for Mr. A, B, C, D, and E?

Mr. Wilson: That would be my position.

This would be analogous to the police chase where you had the... stretched over three hours and umpteen miles and there were different shootings.

Unidentified Justice: No, but I am assuming three police chases of the same individual.

Wouldn't that be the same, just as much a custom as chasing three different individuals?

Mr. Wilson: I don't think you can establish a custom in a relationship with a single employee.

I think that would be a single incident.

Unidentified Justice: No matter how often you repeated it?

Mr. Wilson: If confined to that single employee--

Unidentified Justice: What if the mayor called people in and he said,

"Our policy is to get Praprotnik. "

Why isn't that a policy?

Mr. Wilson: --If the mayor did that, under our interpretation, the mayor would be a policy maker for certain instances, along with the Civil Service Commission, that would be... impose municipal liability under a single incident, because the act, the impermissible conduct comes from the policy maker.

Unidentified Justice: But if a lower official says,

"Our policy is to get Praprotnik. "

And that policy becomes notorious, at that level, it is only a single incident?

Mr. Wilson: Yes, until it would take on the custom and practice which would have to be developed by the totality of facts.

Unidentified Justice: Is that the practice against Praprotnik or not?

Mr. Wilson: We would say not.

Unidentified Justice: I thought so.

Mr. Wilson: That would be our position.

Your Honor, could I reserve the balance of my time?

Chief Justice William H. Rehnquist: Yes, Mr. Wilson.

I will hear now from you, Mr. Oldham.

ORAL ARGUMENT OF CHARLES R. OLDHAM ON BEHALF OF RESPONDENT

Mr. Oldham: If the Court please, Mr. Chief Justice:

There is a substantial difference between our version of the facts and the version of the facts as presented by counsel for Petitioner.

I would like to point out that this was a jury tried case.

And Respondent is entitled to the benefit of all evidence in his favor and all reasonable inference drawn therefrom.

Now, there are certain facts that are not in dispute.

It is stipulated that the acts against Praprotnik were done under color of law.

It was stipulated that he was engaged in protected activity at the time he appealed his actions to the Civil Service Commission.

And there was evidence that he was also engaged in protected activity when he made some criticism of Seraph sculpture.

A jury clearly found that Praprotnik had been subjected to retaliation because of his exercise of First Amendment rights.

Now, I want to get briefly into the facts where we are in difference.

For example, Petitioner argues that Hamsher was solely responsible for the transfer of Praprotnik from a secure position in the CDA to an insecure position at Heritage and Urban Design.

Now, let me explain that situation.

Praprotnik had seniority position where he was the top seniority person.

He had about 19 or 20 years of service at CDA.

There were three or four people in his same position underneath him.

So that in order to reach Praprotnik, they would have had to lay off everybody underneath him in the same classification.

He was moved from that position to a position at Heritage and Urban Design where he was the only person in that classification.

Since we have departmental lay off, he was subject to immediate lay off.

Now, in regard to the transfer, there are a few facts that led up to the transfer.

There had been the situation with the Civil Service Commission.

There had been acts of retaliation against Mr. Praprotnik in terms of taking away his personnel, reducing his scope of his responsibilities.

Things of this nature.

After that, he was subpoenaed to appear before the Heritage and Urban Design Commission to testify concerning the piece of sculpture, the Seraph sculpture which was ensconced on the front yard of the Civil Courts Building in the City of St. Louis.

He testified and his testimony was not well received by the mayor.

And he was immediately called into Mr. Hamsher's office and told that he should have mucked it, that he shouldn't have given this particular information to the Heritage and Urban Design Commission.

Now, that was in the fall.

The following spring, he was transferred.

Now, the act of transfer, in his particular situation, involved not only the transfer of the individual, but the transfer of functions.

In order to transfer functions, they had to get the approval of the Board of Estimate and Apportionment, which consisted of the mayor, the president of the board of aldermen and the comptroller, the three highest elected officials of the city.

They had to approve the transfer of functions.

Now, the testimony is--

Unidentified Justice: Well, by that, do you mean they had to approve what amounted to some kind of reorganization or restructuring of city agencies?

Mr. Oldham: --That's right.

Unidentified Justice: In terms of what a specific agency would do.

Mr. Oldham: They had to approve the change of the budget and the change of the functions so that they could be assigned over here.

Unidentified Justice: Is that the evidence on which the jury was able to determine, if it did, that the mayor was linked to this?

Mr. Oldham: That's part of the evidence.

The other evidence is that Mr. Hamsher testified in his testimony that he went in and discussed this matter with the mayor and he recommended the transfer of Mr. Praprotnik and that the mayor made the decision to transfer Mr. Praprotnik and that he, as a good loyal servant of the mayor, followed his actions.

That is in our brief.

It is in the transcript.

Unidentified Justice: Was there a change in the office of mayor, Mr. Oldham, sometime during these proceedings--

Mr. Oldham: There was a Mr. Conway who was... preceded a Mr. Famel.

And Mr. Spaid was the CDA director who originally took the action against Praprotnik and suspended him and later reduced him, responsibilities.

Then, when Mr. Hamsher came in, there was the situation with the Seraph sculpture, there was a further reduction of responsibilities and after that the transfer of Mr. Praprotnik over to the Heritage and Urban Design Commission.

Unidentified Justice: --Mr. Oldham, may I inquire of your position whether... if there is a policy making person or body of the city in charge of making policy for employment practices, hiring, transfers and discharge, and; if a lower ranking employee supervisor has the authority to actually hire, fire and transfer people, and, if that lower ranking employee decides for wholly improper reasons to make a retaliatory transfer and constructive discharge of an employee without the knowledge or consent of the policy making body, can the city be held liable?

Mr. Oldham: Under 1983?

Unidentified Justice: Yes.

Mr. Oldham: Only on what we would consider appropriate circumstances where the higher officials or the policy making body was aware of what happened or had constructive notice of what happened and permitted it to go on.

Unidentified Justice: So, you take the position that there would be no liability under the example I gave unless there was actual or constructive knowledge and/or approval by the policy making body.

Is that it?

Mr. Oldham: That is correct.

Let me explain what happened in this case.

Unidentified Justice: And do you take the position that here the mayor was the policy maker or the Civil Service Commission?

Mr. Oldham: All right.

In this situation, which involved the transfer, the right to make transfers was delegated by the Civil Service Commission to Mr. Hamsher, the Director of Personnel, Mr. Duffe and the receiving official, Mr. Jackson.

Unidentified Justice: Well, was the Civil Service Commission the policy making body?

Mr. Oldham: For certain services it is a policy making body and for certain other purposes, it is not.

Unidentified Justice: The right to make transfers is what you say they delegated is not necessarily the right to establish policy for transfers.

Where do you assert that that resided?

Mr. Oldham: All right.

The policy for transfers was established in this case by the action of the mayor, the board of ENA and with the knowledge of the Civil Service Commission.

Unidentified Justice: I am not saying in this case.

I am saying as a matter of law, where do you think the power to establish policy for transfers resided within the city?

Mr. Oldham: Every city has a different situation.

I think you have to look at the facts in a given situation and say,

"Under these facts, this individual may have policy making authority. "

"Under these facts, another individual might have policy making authority. "

That is why we say that it is a factual situation, which is a question of fact to the jury.

Unidentified Justice: Do you think the jury can determine all that?

Who is the policy making authority for the city?

It is completely open for the jury to determine?

Mr. Oldham: I think it is a mixed question of law, in fact, like many things.

But I think the jury in this case was instructed and given the instructions to determine who was the policy maker and whether or not these high officials represented the actions of the City.

They were also told that the City can only be liable if it was part of a policy that was knowingly followed by the City so that this was what was submitted to the jury in this case.

And the jury then found the City responsible.

And, based upon that, it is our contention that the act of a transfer in this particular situation was a policy action.

Now, let me explain that a little further.

The decision of Hamsher, Jackson, Duffe, who was Director of Personnel, and the mayor and the other two individuals I mentioned, comptroller and president of the board of aldermen, to transfer Mr. Praprotnik was not subject to review.

Unidentified Justice: Did the same mayor make all of these decisions that you are talking about?

Mr. Oldham: Yes, the same mayor was involved... in the first instance, the first suspension was done by Mr. Spaid who was then Director of CDA under a different mayor.

But Mr. Shamo was the mayor during most of this process.

Unidentified Justice: And are you relying on the constructive discharge theory of the Eighth Circuit, here?

Mr. Oldham: Well, that is what happened.

Unidentified Justice: Well, do you agree with the Eighth Circuit?

Is that the theory?

Mr. Oldham: I don't agree with some of the parts of the decision of the Eighth Circuit.

For example, I don't necessarily agree that our case was predicated upon a final authority situation.

Unidentified Justice: You don't agree with the final authority test.

Do you agree with the constructive discharge theory that the court--

Mr. Oldham: Yes.

I agree that that was a constructive discharge.

The duties and responsibilities that Praprotnik were given were so menial for a person in his category as a licensed architect, to reduce him to filing maps and things of this nature, constituted a constructive discharge.

Unidentified Justice: --Was the jury instructed on that theory?

Mr. Oldham: No.

They were asked if he were... the instructions were give on which there were no objections made that you could find the City liable if this was done by high officials.

It is not limited to the three officials that were named in the law suit.

You have to remember that this was a long time process and that in August prior to the trial, I attempted to amend the petition to bring in some additional named defendants, specifically, the mayor, Mr. Nash, who was the Director of the Department of Public Welfare and others.

And that petition was denied.

So, we were left in the posture where we were not able to get all the named defendants who had taken part in this particular action in that particular law suit.

And we were left with the City as a Defendant.

Now, both myself and the attorney for the City pointed out to the jury that there were other high officials involved in this action.

And that these other high officials, and our contention was that these other high officials did it, then the City was liable even if they should find that the three individuals were not responsible.

So that that's a posture that we found ourselves at the time of trial.

Unidentified Justice: And you think that a single action of a constructive discharge, even if known by the mayor can subject to 1983 liability?

Mr. Oldham: Yes.

When you have high officials of the government involved in this process and you have a Civil Service Commission in the position where they know about it because they have an appeal pending before them which they have declined to hear.

And they take no action on it.

They say,

"We will not hear transfer appeals. "

Then when we have the lay-off, we also filed that appeal.

And that appeal is still pending some three or four years later.

We don't think this is an effective review.

They have permitted this process to go on.

And, so, they have had knowledge of this all during the time.

And it is not a question of constructive knowledge, but actual knowledge of what occurred.

Unidentified Justice: Well, suppose the City with knowledge of its mayor just makes a discharge of a Civil Service employee without good cause.

Now, does that result in 1983 liability if the City's policy is clearly stated not to be that.

Mr. Oldham: I think that you... if you have a policy maker who makes a decision to violate somebody's constitutional rights--

Unidentified Justice: A single decision?

Mr. Oldham: --Single decision.

You have a policy maker who makes a single decision to violate somebody's constitutional rights and there is no effective appeal process within the city, itself, then I think that that is a policy decision that has been made by the city.

Unidentified Justice: How is that any different than just ordinary respondents responding at superior, which Monell said that they were not going to settle for in the case of municipal liability.

Mr. Oldham: As I understand Monell, it also said that when a high public official or policy maker speaks on behalf of the city that that can create liability.

Unidentified Justice: It can create a policy, but I thought you answer to Justice O'Connor's question intimated that all you need is the one instance.

You don't need any policy.

Mr. Oldham: Well, I think that one instance is... and, actually, one instance can in appropriate circumstances create the policy which raises the issue of liability.

I think that there are times when that occurs.

Unidentified Justice: Well, then that really is just indistinguishable from Respondent's superior?

Isn't it?

That someone acting for the city did this.

It violated someone's constitutional right; therefore, the city is liable.

Mr. Oldham: Justice Rehnquist, I differentiate that because I talk about a policy maker having that right.

A high public official.

For example, it is agreed that if the School Board of the City of St. Louis fires somebody because of their exercise of a constitutional right, that would create liability under 1983.

Unidentified Justice: Even though it is hard to say that the firing of somebody for the exercise of constitutional rights is a policy; isn't it?

Mr. Oldham: Well, I think the courts have held that there is liability under 1983.

And I equate that with the same type of situation, Your Honor.

In this situation, we get back to the basic fact that this was a jury tried case that the jury found there was retaliation, the jury found liability on the part of the City.

And one of the points that the City has talked about in its brief and presented in its argument is that there is a basic inconsistency about the verdict which exonerates the three individuals and the verdict which finds the City liable.

And that is not the posture of the case because the instructions permitted you go beyond the three individuals.

The arguments of counsel for the City pointed out that these three individuals weren't responsible, that there were other high public officials that were responsible.

And I pointed out that there were other high officials that were responsible so that the jury could, under the arguments and under the instructions, find liability by the City and excuse the three individuals.

Unidentified Justice: Mr. Oldham, could the employee who alleges a constructive discharge by virtue of a transfer file an appeal with the Civil Service Commission and get it heard?

Mr. Oldham: No, not in this case.

We asked for a--

Unidentified Justice: Well, now, wait a minute.

After he has lost his job, he has been Riffed and he comes in and he says, "I was constructively discharged".

Do we know that the Commission would not consider hearing an appeal?

Mr. Oldham: --This is the one the Commission refused to hear until the matter had been resolved by the courts.

We filed an appeal--

Unidentified Justice: Because it was already in court?

Mr. Oldham: --Oh, we were already in court on the transfer.

Unidentified Justice: And so the Commission said,

"As long as you are in court, we will wait. "

Mr. Oldham: Yes.

Unidentified Justice: Because the employee chose to take it to court?

Mr. Oldham: Well, we were already in court on the transfer situation.

Unidentified Justice: A suit had been filed by your client?

That's why you were in court?

Mr. Oldham: We had filed a complaint in Federal Court.

Unidentified Justice: Yes.

Mr. Oldham: Under Section 1983 alleging the transfer was a violation of his constitutional rights.

And then after... they went ahead and did the lay-off.

We then filed another appeal to the Civil Service Commission and they refused to hear that.

They placed it on the back burner where it has been all this time so that we have not had an effective appeal process.

There is another thing that the Court must bear in mind.

On a lay-off, the Civil Service Commission does not give you a full due process hearing.

They limit the type of hearing that you can have.

Unidentified Justice: Well, I take it that we should consider this case only against the background of the transcript?

Mr. Oldham: Well, I was responding to a question by Justice O'Connor.

Unidentified Justice: Yes, I know, but not in light of any kind of a discharge?

Mr. Oldham: There was a constructive discharge in this case by... that resulted from the transfer, yes, Your Honor.

And then ultimately the lay-off.

Unidentified Justice: How do we know it was a constructive discharge?

Mr. Oldham: Well, the Court of Appeals, you know, in reviewing the evidence felt that this was constructive discharge.

Unidentified Justice: But that wasn't how the jury had been instructed.

So, it didn't have that theory in front of it.

Mr. Oldham: The jury was instructed on the transfer and the lay-off.

The jury was instructed on the transfer and the lay-off so that both of those were involved in the jury instruction.

Unidentified Justice: I take it that you don't... let's assume that it is perfectly clear the Commission makes transfer policy and suppose the transfer policy says,

"Never transfer for retaliatory reasons. "

"Never. "

And some... Mr. Herschler or whatever... is Herschler, is that his name?

Mr. Oldham: Hamsher.

Unidentified Justice: Hamsher, all right.

Hamsher nevertheless makes a retaliatory transfer, is the City liable?

You don't urge that the City would be liable in that case?

Mr. Oldham: Not in every instance, Your Honor.

Unidentified Justice: Well, if he acts quite contrary to an expressed policy, how can the City be liable in that case?

Mr. Oldham: Well, I think that if you look at the history of 1983 you had a situation in the south where--

Unidentified Justice: Just take my example.

Mr. Oldham: --Okay.

Unidentified Justice: Do you think that the City is liable in that?

Mr. Oldham: There are situations where the City would be liable.

And those situations are where the decision was not made just by the low-level individual but where other people had knowledge of it.

Unidentified Justice: Well, let's just say it was made solely by that subordinate officer supposedly carrying out a policy, but he disobeys it.

Mr. Oldham: In a situation like that, Your Honor, I don't think there would be liability on the part of the City under 1983.

But I would like to point out that that is not the situation in this case.

Unidentified Justice: Well, I take it, then, that you don't really defend the Court of Appeals rationale of this final authority business?

Mr. Oldham: Your Honor, I think there has to be a little bit more than the final authority process.

I think that there has to be action taken by high public officials.

Unidentified Justice: Yes.

Mr. Oldham: And that is the theory upon which this case was tried.

And that was the theory that was presented to the jury.

And that was the theory that was presented in the instructions to the jury so that we have to look at this case in the posture in which it was tried before the jury.

And those instructions... well, they might have been improved upon--

Unidentified Justice: Well, suppose if we think... if we think that the Court of Appeals proceeded on the wrong legal basis in doing what it did, shouldn't it have a chance to redo its appellate job based on the right rule of law?

Mr. Oldham: --Well, Your Honor, of course that is one of the options available to the Court.

But I think the Court can also look at the basic case and say the decision of the Court of Appeals was right, but some of their reasoning was not correct and you could give the correct reasoning and go ahead and affirm the judgment that we received.

Unidentified Justice: Right.

Mr. Oldham: I think that is entirely possible.

Unidentified Justice: Let me just ask you if you agree that this is a single incident case?

Mr. Oldham: I do not.

Unidentified Justice: Why not?

Mr. Oldham: Well, because actions against Praprotnik covered a period of almost three years.

And it covered a number of incidents.

They involved, first of all, he was supposed to get a reprimand saying that he had not obtained a clear understanding of the policy established by Mr. Spaid.

Instead, they reprimanded him for what he had originally been charged with before the Civil Service Commission and placed it in his personnel file.

And even Mr. Kindleberger, the person who did it, admitted that he was in error on that or didn't do it right.

There were other things that happened.

Mr. Spaid called him in and they reduced his pay a couple of pay steps right after they had recommended him for a two-step increase.

And this happened right after the Civil Service hearing.

After that, his responsibilities were reduced.

When Mr. Hamsher came in, they had the incident with the Seraph sculpture and after that things went really downhill and he was reduced further in responsibilities.

Much of his work was taken away from him.

Unidentified Justice: But you don't give any other instances where any of these things was done to anyone else.

So, if there is a policy that, as opposed to a single incident that you are complaining about, it really is a "Get Praprotnik policy".

Is that the policy you are complaining about here?

Mr. Oldham: That is about what happened, Judge, because I remember there was a--

Unidentified Justice: Do you think that meets the... do you think that's what a policy means in our decisions?

That if you go out after an individual several times or in several ways, even though the ways you go after him are contrary to established principles laid down by the municipality, you have established a policy of getting that individual.

Do you think that's within the fair meaning of our earlier case?

Mr. Oldham: --I think that is within the meaning of 1983.

If you have a single isolated incident, that is one thing.

That is something that happens within a relatively short period of time to one individual.

But when you have a number of incidents and it is clear over a period of three years directed at that individual, I think you have a "Get Praprotnik" policy.

And I remember that the case of Parlow v. Fitzgerald where there was a "Get Fitzgerald" policy and it is somewhat similar.

Because Praprotnik was as well known within the St. Louis hierarchy as Fitzgerald was within the Federal Government hierarchy.

And I don't see how you can say that a person... that if a policy making people and people who are in a position to make decisions that effect an individual and do so for unconstitutional reasons, that that doesn't create the City's... liability on the part of the City.

Because, remember, in our instructions to the jury, we said that the high officials had to have the authority to speak for the City and it could only be... the City could only be held responsible where they did it knowingly and with knowledge.

And so that is the posture of this particular case--

Unidentified Justice: But the policy is to get this one man.

Mr. Oldham: --Yes, Your Honor.

Unidentified Justice: Well, that is single; isn't it?

Or I should have said get a single man.

Mr. Oldham: But there were a number of incidents involving that single--

Unidentified Justice: But that is all it was: one man.

Mr. Oldham: --One man.

Unidentified Justice: Secondly, how much of this was given to the mayor, presented to the mayor?

Mr. Oldham: Pardon, Your Honor?

Unidentified Justice: How much of this was told to the mayor?

Mr. Oldham: That is difficult to say because--

Unidentified Justice: Well, so far as the record shows--

Mr. Oldham: --in terms of direct words to Mr. Praprotnik, nobody said,

"We are going to fire you because of this. "

Or,

"We are going to transfer you because of this. "

Unidentified Justice: --Well, how do you get the mayor involved in this?

Mr. Oldham: Because the mayor made the decision to transfer Mr. Praprotnik and made decisions to transfer the function, which, incidentally, were never transferred.

In order to be legal, under its charter, they had to transfer the functions over to the Division of Heritage and Urban Design.

As a matter of fact, there is no record of any transfer of functions over to the Heritage and Urban Design so that it indicates that even though there was a decision made--

Unidentified Justice: Did the mayor ever see the Respondent?

Mr. Oldham: --Pardon?

Unidentified Justice: Did the mayor ever lay his eyes on the Respondent?

Mr. Oldham: I think so, yes.

Unidentified Justice: When?

Is it in the record?

Mr. Oldham: The record reflects that--

Unidentified Justice: The records reflect that he didn't even know anything about this man; doesn't it?

Mr. Oldham: --Oh, no.

The record reflects that he did know about the man.

Unidentified Justice: Well, that's what I asked you.

What is there in the record that shows the responsibility of the mayor to discharge this man?

Mr. Oldham: The record reflects that the mayor made the decision to transfer him.

The record reflects that the mayor made the decision to transfer his functions.

The record reflects that the mayor was involved in being unhappy about his testimony about the Seraph sculpture.

In order for the Court to understand that, the Seraph sculpture was being promoted by Emily Pulitzer, who is the wife of Joe Pulitzer, who owns the Post Dispatch, whose position is important to the mayor.

And they had proposed a Seraph sculpture to be put out in the front yard of the courthouse.

And when he testified that there were some problems with the Seraph sculpture, under oath, before the Heritage and Urban Design Commission, he was called in and reprimanded by Mr. Hamsher and was told that he should have mucked the questions, that he should not have responded to them, that the mayor was unhappy.

So that the mayor was involved in this situation and knew about it.

Unidentified Justice: Somebody told somebody that the mayor was unhappy.

Mr. Oldham: Yes.

Unidentified Justice: And that charges the mayor with firing him?

Mr. Oldham: Mr. Hamsher--

Unidentified Justice: Somebody told somebody that the mayor was unhappy.

So that makes the mayor responsible?

Mr. Oldham: --An agent of the mayor told Mr. Praprotnik... his supervisor told Mr. Praprotnik--

Unidentified Justice: Is there anything in the record to show that the mayor was unhappy?

Mr. Oldham: --Other than statements of his agents?

Unidentified Justice: Is there anything other than hearsay in the record to show that the mayor was, quote, unhappy, end quote?

Mr. Oldham: Your Honor, I don't think that a statement of an employee or agent of the mayor is hearsay.

I think that is... when you speak for your principal, that takes it beyond the hearsay stage.

And, so, we have statements by the employees, agents of the mayor, saying the mayor was unhappy.

And I do not think that is hearsay.

If the Court please, I know my time is about up:

I think that our case should be affirmed for the reasons we have stated.

That high public officials were involved, that the jury verdict under the Seventh Amendment should be respected and that the Court should grant the relief we have requested.

Chief Justice William H. Rehnquist: Thank you, Mr. Oldham.

Mr. Wilson, you have three minutes remaining.

ORAL ARGUMENT OF JAMES J. WILSON ON BEHALF OF PETITIONER -- REBUTTAL

Mr. Wilson: We have now in Respondent's argument interjected the mayor of the City of St. Louis into this dispute.

I would like to in reflecting the record try to clarify or correct what I think have been some mischaracterizations of it.

There was nothing in the record that indicates that the mayor ever had any personal involvement with the Plaintiff.

I question whether or not he knew of the Plaintiff.

The Plaintiff was a middle manager city planner.

We were involved in a cutback of some community development funds that caused a shortfall of $35 million in the city budget and what was attempted to be done was to transfer functions from this large department, the Community Development Agency, to various other city agencies.

The reference that the mayor knew of the transfer is actually a reference to his knowledge, obviously, that functions were being transferred.

The Plaintiff attempted at various times to involve 15 City officials into this dispute.

His verdict director instruction, though, is quite clear.

And I would read from it that: The Defendants Hamsher, Patterson and Kindleberger are high governmental officials with the right to make policy decisions.

Unidentified Justice: But, Mr. Wilson, as I understand it, you are relying on your motion for a directed verdict at the close of his case.

Mr. Wilson: Yes, that's correct.

Unidentified Justice: Which, it seems to me, allows your opponent to rely on evidence in the record, even though it might not have been referred to in the instructions?

Mr. Wilson: Yes, that is correct.

We are pointing out, though, his theory of the case in no way is directed to the mayor as a policy maker.

Unidentified Justice: No, but at the directed verdict stage, you are not really debating the theory of the case of whether there is any evidence that would sustain liability under 1983.

Mr. Wilson: I think, Justice Stevens, I think we get to the point of attempting to identify the policy maker and I think for that purpose we wanted to make sure that it was clear that the mayor, who may be, along with the Civil Service Commission, to be a policy maker, was not in any way involved in this particular retaliatory transfer.

It was found by the Eighth Circuit to be the act of the Defendant Hamsher.

And I think that is the question is: Whether or not the Defendant Hamsher was a policy maker under state law.

In respect to the appeal from the lay-off that Mr. Oldham described which I would have to disagree with.

I think the constructive discharge appeal would give the Plaintiff a right to a full hearing, either before the Civil Service Commission or under our state law, de novo in the Circuit Court.

Chief Justice William H. Rehnquist: Your time is expired, Mr. Wilson.

The case is submitted.