Oklahoma City v. Tuttle Motion for Leave to File and Supplemental Brief for Respondent

    No. 83-1919

Im THE

Olourt of %  Inttieii ^ a t e a
October Teem, 1984

The City of Oklahoma City,

y.

E ose Marie T uttle,

Petitioner,

Respondent.

OK WRIT OF CERTIORARI TO THE UKITED STATES 
COURT OF APPEALS FOR THE TENTH CIRCUIT

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF 
AND SUPPLEMENTAL BRIEF FOR RESPONDENT

Carl H ughes*
Michael Gassaway

Hughes, Nelson & Gassaway 
1501 N. Classen, Suite 200 
Oklahoma City, Oklahoma 73106 
(405) 528-2300

Attorneys for Respondent

J. L eV okke Chambers 
E ric S chkapper

NAACP Legal Defense & 
Educational Fund, Inc.

99 Hudson Street
New York, New York 10013
(212) 219-1900

Of Counsel 
* Counsel of Record



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No. 83-1919

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1984

THE CITY OF OKLAHOMA CITY,
Petitioner,

V .

ROSE MARIE TUTTLE,
Respondent

On Writ of Certiorari 
to the United States Court of Appeals 

for the Tenth Circuit
- - ..... ....... ........ ^ .......  --------- ------- ■ ............ ............ .

MOTION FOR LEAVE 
TO FILE SUPPLEMENTAL BRIEF

Respondent hereby moves this Court, 
pursuant to Rule 35.6, for leave to submit 
the annexed brief, and in support thereof 
states as follows:



“ 11 “

At the oral argument in this action a 

dispute arose as to whether the petitioner 
had objected to the jury instructions in 
the manner reauired by Rule 51. In 

response to questions from the Court, 
counsel for petitiner did not assert that 
the statements of counsel contained in the 
trial transcript met the requirements of 
Rule 51. Rather, he asserted that a 
specific and sufficient objection had 
earlier been made off the record at an 

instruction conference with the trial
judge.

This representation had never 
heretofore been made by counsel for 
petitioner in either this Court or the 
lower courts. The accuracy of that 
representation is critical to, if not 
dispositive of, this appeal, since without 
a sufficient objection this Court would 
lack authority to consider the correctness 
of the instruction at issue.



- Ill

Respondent has lodged with the Court 
an affidavit of respondent's trial counsel 
regarding the off the record conference 
referred to by counsel for petitioner, and 
seeks leave to submit this brief setting 
forth her views on this new procedural 

problem.

Respectfully submitted.

CARL HUGHES *
MICHAEL GASSAWAY 
Hughes, Nelson & Gassaway 
1501 N. Classen, Suite 200 
Oklahoma City, Oklahoma 73106 
(405) 528-2300
Attorneys for Respondent

J. LeVONNE CHAMBERS 
ERIC SCHNAPPER 
NAACP Legal Defense & 
Educational Fund, Inc.
99 Hudson Street
New York, New York 10013
(212) 219-1900
Of Counsel

* Counsel of Record





TABLE OF AUTHORITIES
Case Page
Albemarle Paper Co. v. Moody,

422 U.S. 405 ( 1975) ...........  9
American Motors Sales Cor- 

portation v. Semke, 384
F.2d 192 ( 10th Cir. 1967) .....  5

City of Los Angeles v. Lyons,
461 U.S. 95 ( 1 983)   9

Great-West Life Assurance 
Co. V .  Levy, 382 F.2d 357 
(10th Cir.* 1967) ............... 4

Monel1 V. New York City Dept, 
of Social Services, 436
U.S. 658 ( 1978) ................ 7,8,9

Owen V .  City of Independence,
445 U.S.' 622 ( 1980) ...........  8,9

Rizzo V .  Goode, 423 U.S. 362
( 1976) ........................ 6,8,9,10

Schever v. Rhodes, 416 U.S.
232 ( 1974) ..................... 9

Rules
Rule 51, Federal Rules of

Civil Procedure ............... ii,2,4,5
Supreme Court Rule 35.6 ..........  i





No. 83-1919

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1984

THE CITY OF OKLAHOMA CITY,
Petitioner,

V .

ROSE MARIE TUTTLE,
Respondent.

On Writ of Certiorari 
to the United States Court of Appeals 

for the Tenth Circuit

SUPPLEMENTAL BRIEF FOR RESPONDENT

In our principal brief we noted that 
counsel for petitioner had failed to make, 
with regard to the instruction regarding 
the evidentiary significance of a single 
constitutional violation, an objection



-  2 -

which satisfied the requirements of 
clarity and specificity established by 

Rule 51. (R. Br. 44-45, 45 n.62).
Petitioner did not file a reply brief. 
When this matter arose at oral argument, 
counsel for petitioner did not contend 
that what was said on the record at trial 
was sufficient under Rule 51. (See Tr. 
693). Rather, counsel for petitioner 
asserted that a legally sufficient 
objection had been made off the record at 
an earlier instruction conference with the 
trial judge. Petitioner urged that this 
claimed off the record objection satisfied 

the reauirement of Rule 51, or made 
petitioner's position sufficiently clear 
as to give meaning to the otherwise 
unintelligible on the record statement.

Counsel for respondent have lodged 
with the Court an affidavit of respon­
dent's trial counsel describing the 
instruction conference with Judge West.



-  3 -

According to that affidavit no objection 

was ever made at that conference to the
t

"single violation" instruction or to any 
other instruction subsequently presented 
to the jury. The affidavit states that, 
on the contrary, petitioner's lead 
counsel, Richard Mahoney, expressly agreed 
to the court's proposed instructions at 
that conference.

The representation made in this Court 
on behalf of petitioner was offered by 
Burck Bailey. Mr. Bailey, however, was 
not at the instruction conference, and he 
did not indicate on whom he had relied in 
reporting to the Court that an off the 
record objection had been made. Mr. 
Bailey's apparent error, and the exceed­
ingly obscure nature of the statement that 
appears on page 693 of the transcript, may 
both have occurred because a third 
attorney for respondent, Dan Brummitt, the



-  4 -

attorney who made that statement, may not 
have been present at the instruction 

conference itself.
This Court should decline peti­

tioner's invitation to engage in specula­
tion regarding how the trial judge might 
have understood Mr. Brummitt's admittedly 
confusing if not incomprehensible state­
ment. Rule 51 requires a party to state 
"distinctly the matter to which he objects 
and the grounds of his objection" in order 
to avoid the need for such appellate 
exegesis or cryptography. (Emphasis 
added). The tenth circuit court of 
appeals has expressly admonished attorneys 
in that circuit that they cannot rely 
either on remarks in chambers conferences^ 

or on arguments made at some prior stage

1 Great-West Life Assurance Co. v. Levy, 382 
F.2d 357, 359 ( 10th Cir. 1967)'.



-  5 -

of the proceedings, but must comply with 
Rule 51 by making a specific and clear 
objection on the record to any disputed 
instructions.

The importance of such specificity 
and clarity is demonstrated by the 
ambiguity which still characterizes 
petitioner's position. It is unclear 
whether petitioner is contending in this 
Court (1) that a plaintiff must prove both 
the existence of a policy and the exis­
tence of a series of violations, (2) that 
proof of a series of violations is the 
only way to establish the existence of a 
policy, (3) that the particular violation 
proven here would, without other proof, be 
insufficient to establish the existence of 
a relevant muncipal policy, (4) that the 
plaintiffs here failed to offer any 
credible evidence of a policy, except for
2 American Motors Sales Corporation v. 

Semke, T84 F.2d 1 92 , 1 98 ( 1 0th Cir.
1967) .



6 -

the proof of a single violation, or (5) 

that no single constitutional violation, 
regardless of the circumstances or the 
position of the perpetrator, could ever 
support an inference of the existence of a 
city policy. Only if the statement on 
page 693 had the latter meaning might it 
be sufficient to preserve an objection to 
the single incident instruction. But 
there is simply no way of knowing on the 
present record whether that is the 
argument intended by Brummitt or whether 
that is what the trial court understood 

Brummitt to mean.
The Court also inquired at oral 

argument whether a finding of muncipal 
liability based on adecruate training and 
supervision was precluded by Rizzo v .
Goode 423 U.S. 3 62 (1976). Whatever the.....  ̂ ‘ '

merits of this issue, it is not one 
preserved or even raised by petitioner's 
below. The trial iudge expressly



-  7

instructed the jury that liability could 
be based on a policy of failing to provide

3adequate training or supervision,' and 
petitioner did not voice even an unintel­
ligible objection to that instruction. On 

the contrary, petitioner expressly 
acknowledged in its pre-trial brief that 
the municipal liability could be grounded 
on a city's training and supervision

4policies. Neither in the court of
appeals nor in this Court has petitioner 
disavowed that position.

The unobjected to instruction was 
clearly correct. Monell imposes liability 
On a city for a constitutional violation

^ J.A. 43-44.
 ̂ Trial Brief of Defendant, p. 3:

" [A] showing of reckless or 
non-existent training must be 
affirmativelyshown. The affirma­
tive showing of grossly negligent 
or reckless training must then be 
shown to be the causal link of 
plaintiff's damaqes."



-  8 -

caused^ by "a government's policy", 436
n.s. at 694, not "a government's policy

5other than a training policy." The

issues raised by Rizzo are significantly 

different than those which arise under 
Monel1. In Rizzo the plaintiff sued only 
individual muncipal officials, not the 
city of Philadelphia itself; the standard 
for municipal and individual liability 
under section 1983 are clearly different. 
Compare Owen v. City of Independence,

5 Monell read Rizzo to have held "that the 
mere right to control without any control 
or direction having been exercised and 
without any failure to supervise is not 
enough to support §1983 liability." 436 
U.S. at 694 n.58. That holding is clearly 
inapplicable to a case such as this in 
which the plaintiff claimed both that 
there was "a failure to supervise" and 
that the citv did indeed exercise "control 
or direction" over the training program. 
In Owen v. City of Independence this Court 
noted with approval that one of the 
effects of potential municipal liability 
under Monell would be "to increase the 
attentiveness with which officials at the 
higher levels of government supervise the 
conduct of their subordinates." 445 U.S. 
622, 652 n.36 (1980) (Emphasis added).



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supra with Scheuer v. Rhodes, 416 U.S. 232 

( 1 974 ). The plaintiffs in Rizzo sought 
sweepina injunctive relief which would 
have required the federal courts to 
"supervise the functioning of the police 
department," 423 U.S, at 380, a proposed 
remedv which this Court concluded dis­
regarded important principles of federa­
lism. Id. at 378-80. Rizzo itself
emphasized that the standards which a 
plaintiff must meet to obtain injunctive 
relief under section 1 983 were different 
and more stringent than those applicable 
to an action for damages. at 378; see 
also City of Los Angeles v. Lyons, 461
U. S. 9 5 ( 1 983). The prospect of substan­
tial damage awards may well provide the 
spur or catalvst which leads a city to 
reevaluate policies that cause constitu­
tional violations, cf. Albemarle Paper Co.
V . Moody, 422 U.S. 405, 417-18 (1975), but 
such awards, unlike the injunction sought



in Rizzo, do not directly restrict the 

city's "latitude in the dispatch of its 
own internal affairs." Rizzo v. Goode, 

423 U.S. at 379.

-  10 -

CONCLUSION

For the above reasons the decision of 

the tenth circuit should be affirmed. In 
liqht of the question which has now arisen 
as to v/hether the disputed instruction was 
objected to at the off the record con­
ference, it may be appropriate to remand 
this case for a resolution of that factual 

issue.

Respectfully submitted.

CARL HUGHES *
MICHAEL GASSAWAY 
Hughes, Nelson & Gassaway 
1501 N, Classen, Suite 200 
Oklahoma City, Oklahoma 73106 
(405) 528-2300
Attorneys for Respondent



-  11 -

J. LeVONNE CHAMBERS 
ERIC SCHNAPPER 
NAACP Legal Defense & 
Educational Fund, Inc,
99 Hudson Street
New York, New York 10013
(212) 219-1900
Of Counsel *

* Counsel of Record





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Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177