Roger Dileo v. Richard Greenfield

NEWMAN, District Judge

(dissenting):

Because I believe the decision whether to construe Connecticut’s teacher termination statute literally or narrowly should be made by the Connecticut courts, I think the Trial Court should have abstained pending state court construction, and I therefore dissent from this Court’s affirmance of the judgment sustaining appellant’s termination.

Appellant, a tenured public school teacher, was terminated for conduct found by the Bloomfield Board of Education to fall within one of the six categories of reasons specified by Conn.Gen.Stat. § 10-151 as sufficient for teacher termination. That category is “other due and sufficient cause.” Conn.Gen.Stat. § 10-151(b)(6). The Trial Judge thought this category, standing alone, vague, and the majority of this Court appears to agree. And while this Court rejects the Trial Court’s ruling that the vice of unconstitutional vagueness can be cured by the Board’s after-the-fact specification of charges, it nevertheless provides its own after-the-fact narrow construction of the state statute to give it a meaning that passes constitutional muster. That disposition of the case raises three issues: (1) whether such a construction is correct, (2) whether it may be done in appellant’s case, and (3) whether it should be done by a federal court. I deal with the first two issues briefly because for me the third issue is decisive.

1. The majority construes subsection (b)(6) to be limited to “conduct reflecting on professional teaching capability,” a construction derived by reading the subsection in light of the five subsections that precede it and construing them to cover classroom performance. That is surely a permissible construction but not an inevitable one. Since one of those preceding subsections, § 10-151(b)(2), covers “insubordination against reasonable rules of the board of education,” the argument is available that the legislature, by enacting subsection (b)(2), has delegated to the board of education plenary power to specify standards of classroom performance, and that the addition of subsection (b)(6) must mean something more — a non-classroom related category of broad dimension.

2. Since one of the principles safeguarded by the vagueness doctrine is that no one shall be penalized for conduct without fair notice 1 that the conduct is proscribed, *956 Grayned v. City of Rockford, 408 U.S. 104, 108 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972), it is somewhat anomalous to have that notice supplied in the course of litigation that follows the challenged conduct. Whether a state court’s narrowing construction of its own statute can save a statute from vagueness attack in the very case in which the attack is made is an issue that has drawn varying responses from the Supreme Court. In Winters v. New York, 333 U.S. 507, 514-15 , 68 S.Ct. 665, 670 , 92 L.Ed. 840 (1948), the Court said, “We assume that the defendant, at the time he acted, was chargeable with knowledge of the scope of subsequent interpretation” and referred to Lanzetta v. New Jersey, 306 U.S. 451 , 59 S.Ct. 618 , 83 L.Ed. 888 (1939). Yet in Lanzetta the Court had observed, “It would be hard to hold that, in advance of judicial utterance upon the subject, [defendants] were bound to understand the challenged provision according to the language later used by the [state] court.” Id. at 456 , 59 S.Ct. at 621 . More recently the Court said in Bouie v. City of Columbia, 378 U.S. 347, 352-53 , 84 S.Ct. 1697, 1702 , 12 L.Ed.2d 894 (1964), “Even where vague statutes are concerned, it has been pointed out that the vice in such an enactment cannot 'be cured in a given case by a construction in that very case placing valid limits on the statute’ . . . .” Interestingly, the internal quote in Bouie is from law review commentary, and no case citation is supplied.

Perhaps this apparent uncertainty is explicable by reference to the distinction between statutes so vague as to have no meaning at all, Coates v. City of Cincinnati, 402 U.S. 611, 614 , 91 S.Ct. 1686 , 29 L.Ed.2d 214 (1971), and those with a reasonably certain core of meaning that applies to the conduct in question, even though vagueness objections may be encountered at the outer limits of the statute’s coverage, see, e. g., Broadrick v. Oklahoma, 413 U.S. 601 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973). It may well be that in the very case in which a vagueness attack is made, a court is entitled to construe the statute as one that has an ascertainable core meaning and to sustain the challenged action upon a finding that the plaintiff (or criminal case defendant) had a fair warning of that core meaning and that his conduct fell within it. See Dombrowski v. Pfister, 380 U.S. 479 , 491 n.7, 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965). But the question remains, as to state statutes, whether that construction should be made by a state or federal court.

3. The Supreme Court has rarely if ever given a narrowing construction to broad terms of a state statute proscribing conduct to save it from a vagueness attack. 2 When it considers vagueness attacks on state statutes, it has the benefit of state court construction either in the very case under review, e. g., Grayned v. City of Rockford, supra; Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972), or in the decision affirming the .conviction from which habeas corpus relief is sought, e. g., Smith v. Goguen, 415 U.S. 566 , 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974); Gooding v. Wilson, 405 U.S. 518 , 92 S.Ct. 1103 , 31 L.Ed.2d 408 (1972). See Amsterdam, “The Void-For-Vagueness Doctrine in the Supreme Court” 109 U.Pa.L.Rev. 67, 68 n.4 (1960). Of course the Court has, without benefit of state court construction, ruled *957 that certain words of a statute plainly cover the conduct in question, e. g., Broadrick v. Oklahoma, supra, but in eases like Broad-rick, the plaintiffs are not claiming that the statute has no meaning at all; their contention is essentially one of over-breadth — that the statute while clear at its core, would inhibit protected First Amendment activities by the uncertainty at its outer limits. See also Young v. American Mini Theatres, Inc.,-U.S.-, 96 S.Ct. 2440 , 49 L.Ed.2d 310 (1976).

The plaintiff in our case asserts that the challenged standard, “other due and sufficient cause,” has no meaning at all. The majority does not suggest that this phrase as written has a core meaning that plainly applies to plaintiff’s conduct. Instead it supplies a construction of the statute that limits its coverage to “conduct reflecting on professional teaching capability” and then concludes that plaintiff’s conduct falls within the core meaning of that narrowed standard. And in asserting the obligation to determine whether the statute can be given this narrowing construction, it cites only cases involving federal statutes, as to which a federal court’s responsibility for statutory construction is clear.

Perhaps the Connecticut courts would agree with the narrowing construction supplied by the majority. But they may not. Recently the Connecticut Supreme Court considered a vagueness challenge to the state’s student expulsion statute, found it not susceptible to a narrowing construction, and upheld the constitutional challenge. Mitchell v. King, Conn., 363 A.2d 68 , 37 Conn. L.J. No. 3 at 4 (1975). The majority of this 'Court finds the statutes in that case and this distinguishable, but we do not know if the Connecticut courts would think that the Connecticut legislature had intended to infuse a more precise meaning into the vague phrase of the teacher termination law than it did with respect to the student expulsion law.

There is further reason for letting the state courts decide the meaning of this statute. The vagueness doctrine serves not only to provide fair warning to the public but also to guard against excessive legislative delegation that might permit arbitrary determinations by factfinders. See Grayned v. City of Rockford, supra, 408 U.S. at 108-09, 92 S.Ct. 2294 . The Connecticut courts might well conclude that the challenged statute delegates standardless authority to local boards of education, and the state courts might decide that even if a narrowing construction is available, they will decline to adopt it, preferring the legislature make its decision as to the appropriate scope of authority for boards of education to have in teacher terminations.

The Supreme Court has frequently required abstention for state court construction of state statutes challenged for vagueness. See, e. g., Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498 , 92 S.Ct. 1749 , 32 L.Ed.2d 257 (1972); Harrison v. NAACP, 360 U.S. 167 , 79 S.Ct. 1025 , 3 L.Ed.2d 1152 (1959); Albertson v. Millard, 345 U.S. 242 , 73 S.Ct. 600 , 97 L.Ed. 983 (1953); see also Musser v. Utah, 333 U.S. 95 , 68 S.Ct. 397 , 92 L.Ed. 562 (1948). In the rare situation when the Court has considered abstention inappropriate, considerations quite different from those in this case have been present. Thus, in Baggett v. Bullitt, 377 U.S. 360 , 84 S.Ct. 1316 , 12 L.Ed.2d 377 (1964), the challenge was to the vagueness of an oath requirement, rather than a penal or regulatory standard of conduct, and the plaintiff asserted that the oath requirement inhibited the exercise of First Amendment rights. The plaintiff here makes no claim that he is deterred from the assertion of First Amendment rights; his sole claim is that the regulatory statute lacks any meaning at all. Moreover, the Court’s rejection of abstention in Baggett cannot realistically be separated from its conclusion that the challenged oath was unconstitutional.

Due regard for the primacy of a state’s role in educational matters adds a further reason why the state courts should be given the opportunity to decide whether or not this state statute has a core meaning that saves it from unconstitutional vagueness. *958 Any resulting delay in final adjudication stems from the plaintiff’s choice of pursuing the litigation through federal forums. Finally, it should be noted that neither the District Court, which doubted the validity of the statute in the absence of the unavailing specification of charges, nor this Court have had the benefit of the views of the appropriate officials of the state whose statute is being construed. I would remand with directions to abstain. 3

. In this context fair notice obviously means only opportunity to acquire notice rather than actual notice; otherwise ignorance of the law would be more of an excuse than we have been led to believe.

. In Cole v. Richardson, 405 U.S. 676 , 92 S.Ct. 1332 , 31 L.Ed.2d 593 (1972), the Court did narrowly construe (or at least reject a three-judge district court’s broad construction of) a state-mandated oath, without benefit of state court construction. That was done essentially in response to the claim of overbreadth, a claim which, to the extent still available, see Broadrick v. Oklahoma, 413 U.S. 601 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973), is normally inappropriate for abstention, Baggett v. Bullitt, 377 U.S. 360 , 84 S.Ct. 1316 , 12 L.Ed.2d 377 (1964). Significantly, the Court in Cole did not believe the oath requirement encountered any vagueness objection at all. “[T]he oath is ‘no more than an amenity.’ It is punishable only by a prosecution for perjury and, since perjury is a knowing and willful falsehood, the constitutional vice of punishment without fair warning cannot occur here.” 405 U.S. at 685, 92 S.Ct. at 1337 (citation and footnote omitted).

. Abstention to secure state court construction may encounter a procedural difficulty not normally present in typical instances of Pullman abstention. Normally, the federal court plaintiff can tender to the state court only the state law issue of how the state statute is to be construed, reserving his right to return to federal court to litigate his federal question in the event the state court construction keeps the controversy alive. See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 , 84 S.Ct. 461 , 11 L.Ed.2d 440 (1964). Usually the issue tendered to the state court is whether or not the state statute should be construed to cover the conduct in question. That is not the question this plaintiff would want answered. He does not seriously dispute that the statute, if narrowly construed, would cover his conduct, nor can he dispute that the statute would cover his conduct if broadly construed. Thus, he has no controversy with the defendants if he asks the state courts to rule only whether his conduct is covered. His claim is that the statute is so broad as to have no ascertainable meaning. The defendants contend the statute can and should be construed narrowly. A state court may be understandably reluctant to resolve those contentions since the dispute is academic unless joined with an attack upon the statute as unconstitutionally vague if broadly construed. But if the plaintiff asserts in state court that the statute is unconstitutionally vague in order to have it construed, he may have difficulty reserving his right to return to federal court under England . This procedural anomaly should not prevent us from affording the state courts the opportunity to construe the state statute. England construed Government & Civil Employees Organizing Comm. v. Windsor, 353 U.S. 364 , 77 S.Ct. 838 , 1 L.Ed.2d 894 (1957), to mean only that a plaintiff must inform the state courts what his federal claims are, so that the challenged statute may be construed in light of those claims, 375 U.S. at 420 , 84 S.Ct. at 461. And “evidence that a party has been compelled by the state courts to litigate his federal claims there will of course preclude a finding that he has voluntarily done so.” Id. at 422 n. 12, 84 S.Ct. at 468. If abstention were pursued, it will be time enough to consider whether the England procedure should be modified when a vagueness issue is raised or whether the normal application of collateral estoppel should be somewhat relaxed after the plaintiff has decided how to frame his issues for state court consideration and after the state courts have responded to his lawsuit.