University of Tennessee v. Elliott Brief Amicus Curiae

    No. 85-588

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1985

THE UNIVERSITY OF TENNESSEE, et al. 
Petit ioners

v .

ROBERT B. ELLIOTT 
Respondent

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

AMICUS CURIAE BRIEF FOR THE STATE OF 
KANSAS AND OTHER JOINING STATES

ROBERT T. STEPHAN
Attorney General of 

Kansas
DAVID D. PLINSKY
Assistant Attorney 

General of Kansas
Kansas Judicial Center

second Floor
Topeka, Kansas 66612

At torne ys for Amlicus
Curiae, State of Kansas



CHARLES A. GRADDICK 
Attorney General of Alabama 
P. 0. Box 948
Montgomery, Alabama 36102

ROBERT K. CORBIN 
Attorney General of Arizona 
1275 West Washington 
Phoenix, Arizona 85007

JOSEPH I. LIEBERMAN
Attorney General of Connecticut
P. O. Box 120
Hartford, Connecticut 06101 
JIM SMITH
Attorney General of Florida 
State Capitol
Tallahassee, Florida 32301
RICHARD OPPER 
Attorney General of Guam 
Department of Law 
238 O'Hara Street, #701 
Agana, Guam 96910

CORRINE WATANABE 
Attorney General of Hawaii 
State Capitol, Room 405 
Honolulu, Hawaii 96813
JAMES T. JONES 
Attorney General of Idaho 
State Capitol, Room 210 
Boise, Idaho 83720

Neil F. Hartigan 
Attorney General of Illinois 
100 West Randolph Street, 12th 
Chicago, Illinois 60601

Floor



LINLEY E. PEARSON 
Attorney General of Indiana 
219 Statehouse
Indianapolis, Indiana 46204

WILLIAM J. GUSTE, JR.
Attorney General of Louisiana
2-3-4 Loyola Building
New Orleans, Louisiana 70112

JAMES E. TIERNEY 
Attorney General of Maine 
State House, Station No. 6 
Augusta, Maine 04330

STEPHEN H. SACHS 
Attorney General of Maryland 
7 North Calvert Street 
Baltimore, Maryland 21202

FRANCIS X. BELLOTTI
Attorney General of Massachusetts
One Ashburton Place
Boston, Massachusetts 02108

EDWIN L. PITTMAN
Attorney General of Mississippi
P. O. Box 220
Jackson, Mississippi 39205

WILLIAM L. WEBSTER 
Attorney General of Missouri 
P. O. Box 899
Jefferson City, Missouri 65102

ROBERT M. SPIRE
Attorney General of Nebraska
State Capitol
Lincoln, Nebraska 68509



W. CAREY EDWARDS 
Attorney General of New Jersey 
Richard J. Hughes Justice Complex, NCI12 
Trenton, New Jersey 08625

LACY H. THORNBURG
Attorney General of North Carolina 
Department of Justice 
P. O. Box 629
Raleigh, North Carolina 27602
MICHAEL TURPEN
Attorney General of Oklahoma
112 State Capitol
Oklahoma City, Oklahoma 73105
LE ROY S. ZIMMERMAN 
Attorney General of Pennsylvania 
Strawberry Square, 16th Floor 
Harrisburg, Pennsylvania 17120
DAVID L. WILKINSON 
Attorney General of Utah 
236 State Capitol 
Salt Lake City, Utah 84114
MICHAEL DUNSTON 
Acting Attorney General 

of the Virgin Islands 
P. O. Box 280
St. Thomas, Virgin Islands 00801

BRONSON C. LAFOLLETTE 
Attorney General of Wisconsin 
P. O. Box 7857 
Madison, Wisconsin 53707

A. G. McCLINTOCK 
Attorney General of Wyoming 
123 State Capitol 
Cheyenne, Wyoming 82002



1

QUESTION PRESENTED

Whether traditional principles of 
preclusion apply in an action under 
section 1983, Title VII, and other civil 
rights statutes, to preclude issues fully 
and fairly litigated before a state ad­
ministrative agency acting in a judicial 
capacity to protect Fourteenth Amendment 
liberty and property interests of state 
employees.

i



TABLE OF CONTENTS
Page

11

QUESTION PRESENTED ............... i
TABLE OF CONTENTS .................  ii
TABLE OF AUTHORITIES ..............  iv
INTEREST OF AMICUS CURIAE STATES .. 1
ARGUMENT ........................... 3

Full Faith and Credit Applies
Without Exception In Section 1983 
And Title VII Cases To The Issues 
Fully and Fairly Litigated By- 
State Agency Adjudications 
Established Under The 14th 
Amendment ........................ 3

A. Denial of Full Faith and
Credit Will Seriously 
Threaten State Administra­
tive Functions ........... 3

B. This Court Has Recognized 
No Exception In Subseguent 
Section 1983 Or Title VII 
Actions For Applying 28 
U.S.C. § 1738 To Issues De­
cided In These Agency 
Decisions 5



Ill

C. Issue Preclusion In This
Case Will Resolve A Dilemma 
Faced By The States .....  11

D. CONCLUSION ...............  16



IV

TABLE OF AUTHORITIES

CASES
Allen v. McCurry, 449 U.S. 90

(1980) ........................
Board of Regents v. Roth, 408 U.S. 

564 (1972) ...................
Buckhalter v. Pepsi-Cola General 

Bottlers, Inc., 768 F.2d 842 
(7th Cir. 1985) ..............

Carpenter v. Reed ex rel.
Department of Public Safety,
757 F .2d 218 (10th Cir. 1985) .

Chicago R.I. & P.Ry. v. Schendel,
270 U.S. 611 (1926) ..........

Elliott v. University of Tennessee, 
766 F.2d 982 (6th Cir. 1985) .

Gawith v. Gage's Plumbing & Heating 
Co., Inc., 206 Kan. 169, 476 
P .2d 966 (1970) ..............

Hutchinson National Bank & Trust Co. 
v. English, 209 Kan. 127, 495 
P • 2d 1011 (1972) .............

Kremer v. Chemical Construction
Corp., 456 U.S. 461 ( 1982) . . .

Loudermill v. Cleveland Bd. of Educ.
U.S . 105 S . Ct. 1487

(1985) ........................

PAGE



V

Magnolia Petroleum Co. v. Hunt,
320 U.S. 430 (1943) .......

Marrese v. American Academy of 
Orthopaedic Surgeons,
U.S. ____, 105 S. Ct. 1327
(1985) .....................

Migra v, Warren City School 
District, 465 U.S. 75 
(1984) .....................

Rawlings v. United States, 686
F.2d 903 (10th Cir.1982) ...

Riley v. New York Transit Co.,
315 U.S. 343 (1942) .......

State ex rel. Sanborn v. Unified 
School District 259, 218
Kan. 47, 542 P.2d 664 (1975)

Thomas v. Washington Gas Light Co. 
448 U.S. 201 (1980) .........

Thompson v. Amis, 208 Kan. 658,
493 P .2d 1259 (1972) .......

Tidewater Oil Co. v. Jackson, 320 
F.2d 157 (10th Cir. 1962) , 
cert, denied, 375 U.S. 942 
(1963) ......................

United States v. Utah Construction 
& Mining Co., 384 U.S. 394 
(1966) ......................

CONSTITUTION PROVISIONS
U.S. Const, art. IV, § 1 ........



VI

FEDERAL STATUTE
28 U.S.C. § 1738 (1982) .......
STATE STATUTES
K.S.A. 60-2101(d) ..............
K.S.A. 75-2929(a ) ..............
K.S.A. 75-2929(d ) ..............
K.S.A. 7 5-2929e(c ) .............
STATE ADMINISTRATIVE REGULATIONS
Kan. Admin. Regs. 1-9-18(c ),(d )
MISCELLANEOUS
1 K. Davis, Administrative Law

Treatise (1983) ..........
Restatement (Second) of Judgments 

(1982) .....................



No. 85-588

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1985

THE UNIVERSITY OF TENNESSEE, ET AL.,

v.
Petitioners,

ROBERT B. ELLIOTT,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE SIXTH 

CIRCUIT

AMICUS CURIAE BRIEF FOR THE STATE OF 
KANSAS AND OTHER JOINING STATES

INTEREST OF AMICUS CURIAE STATES

This case focuses on the preclusive 
effect, in a subsequent section 1983 or 
Title VII civil rights action, of a prior 
state administrative adjudication con­
ducted to protect Fourteenth Amendment 
liberty and property interests of ag­
grieved state employees whose interests



2

are threatened by state agency action. 
The State of Kansas and the other states, 
joining as amici curiae, maintain admin­
istrative forums which, acting in a judi­
cial capacity, provide a full and fair 
trial-type hearing in which to contest 
disciplinary action proposed or taken 
against state employees. Pursuant to 
state law, these administrative judgments 
are entitled to preclusive effect in the 
courts of the amici curiae states and 
should be entitled to full faith and 
credit in federal courts pursuant to the 
requirements of Art. IV § 1 of the 
Constitution and 28 U.S.C. § 1738.

On behalf of the various state agen­
cies, whose defense in these administra­
tive decisions must be borne by the 
Attorneys General of the amici curiae 
states, the State of Kansas and the join­
ing states assert their vitally important 
interests as amici curiae in the question 
presented in this case that full faith 
and credit be applied to the trial-type 
administrative tribunals of these states 
established to conduct their required 
duty under the Fourteenth Amendment to



3

resolve disputes between state agencies 
and their employees involving constitu­
tionally protected interests.

ARGUMENT

FULL FAITH AND CREDIT APPLIES WITH-
OUT EXCEPTION IN SECTION 1983 AND TITLEVII CASES TO THE ISSUES FULLY AND FAIRLY
LITIGATED BY STATE AGENCY ADJUDICATIONSESTABLISHED UNDER THE 14th AMENDMENT.

A. Denial of Full Faith and Credit 
Will Seriously Threaten State 
Administrative Functions.

In Board of Regents v. Roth, 408 
U.S. 564, 569-570 (1972), this Court man­
dated that "[w]hen protected [Fourteenth 
Amendment] ... interests are implicated," 
by state agency action, "the right to 
some kind of prior hearing is paramount." 
This mandate was extended in Loudermill
v. Cleveland Bd. of Educ. , ___ U.S. ___,
105 S.Ct. 1487 (1985) to require a hear­
ing prior to state agency action which 
threatens constitutionally protected 
rights.

The legislatures of the amici curiae 
states have established various statutory



4

administrative forums in which the state 
employee, or state prisoner, is entitled 
to a full formal, trial—like, evidentiary 
due process hearing. These administra­
tive trials established for purposes of 
protecting Fourteenth Amendment inter­
ests—  and not as Title VII, section 
706(c) deferral agencies under the EEOC/ 
deferral agency investigatory scheme—  
should be entitled to preclusive effect 
in subseguent section 1983 and Title VII 
federal civil rights actions to the same 
extent as they are entitled to preclusion 
in the courts of the amici curiae 
states. Denial of full faith and credit 
not only will undermine the repose and 
finality of these administrative judg­
ments but will also erode the ability of 
states to administer themselves with con­
fidence. Such a denial will also call 
into serious question the efficacy and 
viability of modern state administrative 
agencies to implement legislative and 
executive duties and goals delegated to 
these agencies, absent which state gov­
ernments, in this complex technological 
information era of conflicting and



5

interconnected interests, cannot ade­
quately function. The ability to reliti­
gate the same issues de novo in federal 
court effuses the initial administrative 
adjudicatory process with futility. 
Virtually all such administrative judg­
ments are potentially reviewable either 
under section 1983 or Title VII; there­
fore, a denial of preclusion to issues 
tried by state agencies poses a serious 
threat to the administrative functions of 
state government.

B. This Court Has Recognized No 
Exception In Subsequent Section 
1983 Or Title VII Actions For 
Applying 28 U.S.C. § 1738 To
Issues Decided In These Agency 
Decisions.

The Full Faith and Credit Clause of 
Art. IV, 5 1 of the Constitution is ap­
plicable to the federal courts by 28 
U.S.C. § 1738 which requires that "[t]he 
... judicial proceedings of any such 
State ... shall have the same full faith 
and credit in every court within the 
United States ... as they have by law or 
usage in the courts of any such State 
... from which they are taken." This



6

Court has ruled previously that section 
1983 and Title VII federal civil rights 
actions are not categorically exempt from 
application of section 1738. See Allen 
v. McCurry, 449 U.S. 90 (1980); Migra v. 
Warren City School District, 465 U.S. 75 
(1984); Kremer v. Chemical Construction 
Co•, 456 U.S. 461 (1982). This Court has 
also ruled that there is no express re­
peal of section 1738's application in 
either section 1983 or Title VII; nor has 
this court found any implied repeal or 
exception to section 1738 unless footnote 
7 of Kremer can possibly be read to be an 
exception as to section 706 deferral 
agencies under the Title VII administra­
tive investigation and enforcement 
scheme. See 456 U.S. at 470 n.7.

But the state agencies whose adjudi­
cations are in question here are not the 
section 706 deferral agencies of these 
amici curiae states but rather those 
agencies outside the Title VII enforce­
ment scheme, and established instead to 
protect Fourteenth Amendment interests, 
before which state employees may raise 
discrimination issues, not discrimination



7

claims, as a defense to the disciplinary 
charges against the employee. When a 
state employee chooses to invoke the 
trial-like agency adjudications, which 
the state is burdened with providing, 
then the issues decided by the state 
agency should be entitled to issue pre­
clusion under Art. IV § 1 and 28 U.S.C. § 
1738 even though the agency is not estab­
lished to try and resolve section 1983 
and Title VII claims.

The Sixth Circuit's refusal to grant 
issue preclusion is not only inconsistent 
with that Circuit's prior decision in 
Loudermi11 v. Cleveland Bd. of Educ., 721 
F.2d 550, 559 n. 12, (6th Cir. 1983 ),
aff 'd, _____  U.S. _____ , 105 S.Ct. 1487
(1985) but also inconsistent with this 
Court's recent interpretation of Kremer 
in Marrese v. American Academy of Ortho­
paedic Surgeons, ______ U.S. , 105
S. Ct. 1327, 1332 (1985) that "absent an 
exception to § 1738, state law determines 
at least the issue preclusion effect of a 
prior state judgment in a subseguent ac­
tion involving a claim within the exclus­
ive jurisdiction of the federal courts."



8

Moreover, the Sixth Circuit's con­
clusion "that state determination of is­
sues relevant to constitutional adjudica­
tion is not an adequate substitute for 
full access to federal court" is incon­
sistent with this Court's decisions which 
require that state agencies give due 
process hearings in the first place in 
order to protect Fourteenth Amendment 
interests. Elliott v. University of 
Tennessee, 766 F.2d 982, 992 (6th Cir.
1985). This lack of trust also conflicts 
with Allen and Miqra in which this Court 
clearly indicated its confidence in the 
ability of state judicial proceedings to 
protect constitutional rights.

The Sixth Circuit's decision indi­
cates a basic distrust of the state ad­
ministrative adjudicatory process. 
However, no longer is it questioned that 
"when an agency conducts a trial type 
hearing, makes findings, and applies the 
law, the reasons for treating its deci­
sion as res judicata are the same as the 
reasons for applying res judicata to a 
decision of a court that used the same 
procedure." K. Davis, Administrative Law



9

Treatise, § 21:2 (1983); see genera 1ly
Restatement of Judgments (Second) § 83
(1982). Indeed, this Court's decision in 
United States v. Utah Construction a 
Mining Co., 384 U.S. 394 ( 1966), that
trial-like agency adjudication is en­
titled to preclusive effect, has been 
applied in hundreds of state court deci­
sions and in all of the courts of appeal.

Moreover, this Court has never had 
any trouble in applying full faith and 
credit to state administrative adjudica­
tions. See Thomas v. Washington Gas 
L ight Co. , 448 U.S. 201 (1980 ); Magnolia 
Petroleum Co. v. Hunt, 320 U.S. 430 
(1943); Chicago R.I.& P.Ry. v. Schendel, 
270 U.S. 611 (1926). Clearly, what com­
prises a state "judicial proceeding" 
within the meaning of Art. IV, § 1 and 28 
U.S.C. § 1738 is not self-defining but is 
dependent upon state law. In Riley v. 
New York Transit Co. , 315 U.S. 343, 349
(1942), this Court noted that Art. IV, § 
1 makes each state's preclusion rules "a 
part of national jurisprudence," requir­
ing courts to look to the law of the 
originating state to determine if the



10

decision under review is entitled to pre­
clusion.

The legislatures of each state have 
power to provide when their administra­
tive agencies will act in a judicial ca­
pacity. This point is well illustrated 
in Buckhalter v. Pepsi-Cola General 
Bottlers, Inc. , 768 F.2d 842 (7th Cir.
1985) in which the Seventh Circuit dis­
tinguished the full trial-like hearing 
provided by the State of Illinois with 
the much less formal agency hearing in 
Kremer. The thrust of Buckhalter is that 
the judicial capacity of the state agency 
under the Illinois statute, unlike the 
Kremer hearing, was so formal and trial­
like that common law preclusion was ap­
plicable, under the administrative res 
judicata doctrine of Utah Construction. 
When Buckhalter1s common law preclusion 
analysis is applied to agencies outside 
of Title VII, i.e., non-deferral agen­
cies, it becomes readily apparent there 
is no reason to apply only common law 
preclusion but that 28 U.S.C. § 1738
statutory full faith and credit preclu­
sion also applies. After all, since the



11

underlying purpose of the Full Faith and 
Credit Clause was to constitutionalize as 
national policy the applicability of a 
state's traditional common law preclusion 
principles of res judicata and collateral 
estoppel, then it is clear that the com­
mon law preclusion rules applied by Buck 
halter are the same rules to be applied 
under section 1738 in order to determine 
the preclusive effect of a prior state 
decision.

The reasons that this Court cited in 
Allen v. McCurry for applying section 
1738— promoting the comity between state 
and federal courts, avoiding the cost and 
vexation of multiple lawsuits, conserva­
tion of judicial resources, prevention of 
inconsistent decisions, and the repose 
achieved from reliance on adjudication-- 
are fully applicable to trial type state 
agency adjudications and should be ap­
plied to prevent litigation of issues 
already decided between the parties.

C. Issue Preclusion In This Case 
Will Resolve A Dilemma Faced By 
The States.

The amici curiae states face the di­
lemma of wasting the time, effort, and



12

resources in providing trial-like agency 
due process hearings to protect Fourteen­
th Amendment interests and then have 
federal district courts wipe out the pre­
vious hearing by de novo review on the 
same issues in subsequent section 1983 
and Title VII actions. Many states pro­
vide full trial-like hearings under the 
state administrative procedure act, mod­
eled after the Uniform Law Commissioners' 
Model Administrative Procedures Act. 
Other states like Kansas have a civil 
service statute which includes due pro­
cess hearing provisions.

Under the Kansas Civil Service Act, 
state employees are provided with the 
full range of due process protections: 
notice, right to be heard, to be repre­
sented by counsel, to present evidence, 
to compel attendance of witnesses, and to 
cross-examine opposing witnesses K.S.A. 
75-2929(d ). The employee may defend 
against the disciplinary action on the 
issue that the reasons are "political, 
religious, racial," K.S.A. 75-2949(a), 
"national origin, ancestry ... age, sex 
or physical disability." K.A.R. 1-19-



13

18(c), (d). The employee has the right
to apply for an administrative rehearing 
K.S.A. 75-2929e(c), and the right to ap­
peal an adverse decision to Kansas dis­
trict courts K.S.A. 60-2101(d ); Thompson 
v. Amis, 208 Kan. 658, 493 P.2d 1259
(1972), the Kansas Court of Appeals, and 
the Kansas Supreme Court.

Kansas law says the Kansas Civil 
Service Board acts in a judicial capacity 
in its decisions. Gawith v. Gage's 
Plumbing & Heating Co., Inc., 206 Kan. 
169, 476 P.2d 966 (1970). A decision by 
the Commission becomes a final judgment 
upon the running of the appeal period. 
State ex rel. Sanborn v. Unified School 
District, 218 Kan. 47, 542 P.2d 664
(1975). The relief ordered by such final 
order would be enforceable in Kansas 
courts, the issues decided could not be 
collaterally attacked, and Kansas courts 
would embrace the final administrative 
decision, after time for appeal expires, 
as a full-fledged court judgment. The 
Tenth Circuit, applying Kansas law, 
recognizes this. Rawlings v. United
States, 686 F.2d 903 ( 10th Cir. 1982);



14

Tidewater Oil Co. v. Jackson, 320 F.2d 
157 (10th Cir. 1972), cert, denied, 375 
U.S. 942 (1963).

However, in two unreported deci­
sions, one by each of the federal 
district judges in the District of 
Kansas, different results have occurred 
in subsequent civil rights actions. In 
one, the court granted preclusive effect 
to the Kansas Civil Service Commission 
decision. In the second case, the Court 
granted no full faith and credit to the 
commission's decision.

Collateral attack of these issues is 
not allowed in Kansas court. Hutchinson 
National Rank & Trust Co. v. English, 209 
Kan. 127, 130 (1972). The collateral 
attack invited in federal district court 
under section 1983 and Title VII is 
inconsistent with this Court's caution in 
Marrese that district courts may not, 
consistent with section 1738, elect to 
grant either more or less preclusive 
effect than would the state courts. 105 
S. Ct. at 1332-1335. The district 
court's role, absent an exception to 
1738, is to determine what the state



15

court's would do when confronted with an 
identical situation, then do that. 
See Carpenter v. Reed, ex rel. Dept, of 
Public Safety, 757 F.2d 218, 219 (10th
Cir. 1985).

The dilemma faced by the State of 
Kansas as to the final effect of adjudi­
cations by its Civil Service Commission 
is being faced, in differing scenarios 
but the same plot, by the other amici 
curiae states. The granting of issue 
preclusion to such agency decisions will 
resolve the dilemma and continue to leave 
the federal district courts as final en­
forcers of civil rights claims. Collat­
eral estoppel precludes the relitigating 
of issues properly before and actually 
tried by the agency. Therefore, applying 
issue preclusion has the following posi­
tive results: If the employee raises the
issue of discrimination as a defense and 
prevails before the agency, the state is 
bound by those issues decided, and the 
employee can proceed to federal court to 
obtain supplemental relief under section 
1983 or Title VII. If the employee
raises the issue of discrimination as a



16

defense but fails, he is precluded from 
relitigating that issue.

Application of issue preclusion 
in these instances will provide repose to 
final state administrative adjudications 
and will restore confidence to state 
agencies that issues already decided by 
their adjudications will not be over­
turned in the future by an inconsistent 
federal court factfinding on the identi­
cal issues. The civil rights litigant 
will still have access to the federal 
courts on his section 1983 or Title VII 
claims. The federal district courts, 
however, will be relieved of the burden 
of retrying issues already fully litigat­
ed. Conservation of judicial resource 
will result as well as fulfillment of the 
national policies of comity and federal­
ism which are the foundation of full 
faith and credit.

Conclusion

For the reasons stated, this Court 
should reverse the Court of Appeal's



decision and should apply full faith and 
credit to the issues fully and fairly 
litigated in the agency decision in this 
case.

Respectfully submitted,

ROBERT T. STEPHAN 
Attorney General 
DAVID D. PLINSKY 
Assistant Attorney General 

Kansas Judicial Center 
Second Floor 
Topeka, KS 66612
Attorneys for Amicus 
Curiae State of Kansas



PROOF OF SERVICE
The undersigned, ROBERT T. STEPHAN, 

a member of the Bar of this Court and one 
of counsel of record for Amicus Curiae 
State of Kansas, hereby certifies that on 
the J2- 3  day of January, 1986, he caused 
to be served the foregoing Amicus Curiae 
Brief by placing in first class mail 
three copies each to counsel for the 
petitioners and respondent as follows:
Julius Levonne 

Chambers 
Ronald L. Ellis 
Judith Reed 
99 Hudson Street 
16th Floor 
New York, New 

York 10013

Beauchamp E. Brogan 
Alan M. Parker 
Catherine S. Mizell 
The University of 

Tennessee
810 Andy Holt Tower 
Knoxville, Tennessee 

37996-0184



Avon N.
Jr.

Richard 
Russell 
Williams & 
203 Second 
North 

Nashville, 
37201

1iams,
Dinkins 
Perkins 
Dinkins 
Avenue,
Tennessee

Wil
H.
T.

G. Ray Bratton 
1620 First Tennessee 
Bank Building 

165 Madison Avenue 
Memphis, Tennessee 

38103
N. Richard Glassman 
John Barry Burgess 
26 N. Second Street 
Memphis, Tennessee 

38103
Tommy Coley 
532 Smith Lane 
Jackson, Tennessee 

38301

./
■--------------- ------ , -  -■ ^Robert T. Stepha^i
Attorney General 
State of Kansas

Attorney for Amicus 
Curiae State of Kansas