Brief for the Respondents in Opposition — Brown v. School District

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1943

No. 401

GERTRUDE KOLLER BROWN,

Petitioner,

vs.

THE SCHOOL DISTRICT OF THE CITY OF

BETHLEHEM, PA.,

Respondent.

BRIEF OF THE SCHOOL DISTRICT OF THE CITY OF

BETHLEHEM, PENNSYLVANIA, RESPONDENT, IN

OPPOSITION TO PETITION FOR WRIT OF CER.

TIORARI.

Hersert J. Harrzoa,

Attorney for Respondent.

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Cases CITED.

American Surety Co. v. Baldwin, 287 U.S. 156... ..

Batrus’ Appeal, 148 Pa. Super., 587................

Bell Telephone Co. v. Van Dyke, 296 U.S. 533... ..

Buchalter v. New York; Weiss v. New York; Capone

v. York, 87 L. Ed. Adv. Op. 1088, 63 Sup. Ct. Rep.

re Sieehetaes eal Ihe Sie Ute Uy obitenvh reba es 4 er Ce en

Columbia Water Power Co. v. Columbia Elec. St.

Rwy. Light and Power Co., 172 U.S. 475.........

Cumberland Coal Co. v. Board of Revision, 284 U.S.

Ek ey dra aa NA TE Web ea

Fox Film Corp. v. Muller, 296 U.S. 207............

Gibbes v. Zimmerman, 290 U. 8. 326...............

Honeyman v. Hanan, 300 U. 8.14 .................

Horosko v. Mt. Pleasant Twp. Schl. Dist., 335 Pa.

369, certiorari denied in 308 U.S. 553............

Indiaea v. Brand, 303 U.S. 95 ...............-.5-

Live Oak Water Users’ Asso. v. Railroad Commis-

aN, TE i Wie Ba oa sisi cin racer a eae

Lynch v. New York, 293 U.S. 52 ..................

New York Cent. R. Co. v. New York, 186 U.S. 269... .

Oxley Stave Co. v. Butler County, 166 U.S. 648... ..

Patterson v. Stanolind Ou & G. Co., 305 U.S. 376... .

Pierre v. State of Louisiana, 306 U.S. 354 .........

Skinner v. Oklahoma, 316 U.S. 547................

Southwestern Bell Tel. Co. v. Oklahoma, 303 U. S.

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il INDEX

Page

West Virginia State Board of Education v. Barnette

et al., 87 L. Ed. Adv. Ops. 1171, 63 Sup. Ct. Rep.

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Woolsey ¥. Dest, Te U.S. 1... .... 65. ee eee. 8

Yick Wo v. Hopkins, 118 U.S. 356................. 7

Zatig v. Baldwin, 166 U.S. 485.................... 5

Statutes CIrep.

Pennsylvania Statute of May 18, 1911, P. L. 309, as

amended by Act of June 20, 1939, P. L. 482, 24 P.S.

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Pennsylvania Statute of, June 20, 1939, P. L. 482, 24

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SUPREME COURT OF THE UNITED .STATES

OCTOBER TERM, 1943

No. 401

GERTRUDE KOLLER BROWN,

Petitioner,

Us.

THE SCHOOL DISTRICT OF THE CITY OF

BETHLEHEM, PA.,

Respondent.

BRIEF OF THE SCHOOL DISTRICT OF THE CITY OF

BETHLEHEM, PENNSYLVANIA, RESPONDENT, IN

OPPOSITION TO PETITION FOR WRIT OF CER-

TIORARI.

Statement of the Case.

The Petitioner’s ‘‘Summary and Short Statement of

the Matter Involved’’ (hereinafter called the ‘‘Statement’’)

is acceptable, subject to the following corrections and addi-

tions of material omissions:

1. Correction:

In the Statement (Page ‘‘2’’ thereof) the Petition states

that ‘‘there was an established custom and usage of the

Bethlehem School District whereby applications for sick

leaves or maternity leaves were made to the Board of

School Directors and granted (R. 43)’’. An examination

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2

of the Record (R. 43) discloses no such fact. Furthermore,

the said Record reference is a quotation of allegations from

Petitioner’s Petition to the State Superintendent of Public

Instruction praying for a hearing de novo (R. 44). Such

hearing was held but the Record is barren of any proof of

facts supporting that allegation.

2. Correction:

The Petitioner’s Statement declares that Petitioner was

‘*requested to resign’’ (Page ‘‘2’’). The Record shows

merely, however, that she was afforded an opportunity to

resign (R. 24-25) and the Superior Court of Pennsylvania

so found (R. 74).

3. Correction:

The Petitioner’s Statement (Page ‘‘3’’ thereof) de-

clares that counsel stipulated ‘‘that the charges preferred

against the Petitioner did not question the Petitioner’s

educational competency, but that her incompetency arose

because of her temporary physical disability resulting from

pregnancy (R. 38)’’. The Record shows that the stipula-

tion was that the charge of incompetency was limited to

Petitioner’s present physical disqualification ‘‘to perform

the duties of her office (R. 38)’’; to her ‘‘physical incom-

petency to perform the duties for which she was employed

(R. 38)’. There was no stipulation as to the degree or

duration of the admitted physical incompetency.

4. Omission:

The Petitioner’s Statement fails to state that no testi-

mony was offered by Petitioner in support of her allega-

tions in her Petition for a hearing before the State Super-

intendent of Public Instruction, particularly as to Para-

graphs ‘‘21’’ and ‘‘22”’ thereof (R. 43-44), at the de novo

hearings, first, before the State Superintendent, and second,

3

in the Court of Common Pleas of Northampton County,

Pennsylvania. No facts supporting those allegations were

found either by the State Superintendent (R. 6, et seq.), or

by the Court of Common Pleas of Northampton County

(R. 52, et seq.), or by the Superior Court of Pennsylvania

(R. 74, et seqg.), or by the Supreme Court of Pennsylvania

(R. 81, 83).

5. Omission:

By letter, dated August 24, 1941 (Exhibit 7), Dr. R. M.

Walls, head of the Dental Department of the School Dis-

trict, recommended to the Board that the Petitioner’s

position be filled ‘‘as the entire dental program is built

around the full time services of two hygienists’’, of which

the Petitioner was one (R. 22-23).

By letter, dated October 27, 1941, Dr. Frank Biro, Jr.,

chief medical inspector of the School District, advised the

Board that ‘‘we further feel it our duty to point out that

with only one dental hygienist it is impossible to carry out

the medical program with the desirable efficiency’? (R. 27).

The Record further shows that the Board promptly en-

deavored to secure a satisfactory substitute for the spe-

cialized duties of the Petitioner, but its efforts were at-

tended with difficulties (R. 31-32 and 39-40).

ARGUMENT.

Pornt 1.

The Record discloses no Federal question was properly

presented to or actually decided at any stage of the pro-

ceedings below.

Preliminarily, it should be borne in mind that this matter

was heard in five tribunals—the School Board, the State

Superintendent of Public Instruction, the Court of Common

4

Pleas of Northampton County, the Superior Court and the

Supreme Court of Pennsylvania, all in strict conformity

with Pennsylvania statutory requirements. In the Su-

preme Court it was twice considered—at the original argu-

ment and on the petition for re-argument. Not until the

petition for reargument before the Supreme Court was an

attempt made to raise a Federal question. The Supreme

Jourt denied that petition without opinion.

We consider, first, Petitioner’s ‘‘Statement as to Juris-

diction’’ (Page 4-6 of petition), and the manner in which

the alleged Federal question was supposedly raised and

considered below.

Petitioner asserts that the Federal question sought to be

reviewed was first presented in her petition to the State

Superintendent of Public Instruction (R. 40-43), for a hear-

ing and refers to certain of her allegations in that petition

to the effect that the School Board’s action was discrimina-

tory.

Not only was there no specific averment that the Board’s

action was in contravention of the Fourteenth Amendment

of the Constitution of the United States (Ozley Stave Co. v.

Butler County, 166 U.S. 648; New York Ceut, Ro Co. v. New

York, 186 U.S. 269; Gibbes v. Zimmerman, 290 U.S. 326),

but no proof of any facts supporting the said allegations

was offered. Petitioner had abundant opportunity to pre-

sent such proof, if she had any, at the hearing before the

School Board and at the de novo hearings before both the

State Superintendent of Public Instruction and the Court

of Common Pleas. See Section 1205 of the School Code of

Pennsylvania, Act of May 18, 1911, P. L. 309, as last

amended by Act of June 20, 1939, P. L. 482, 24 P. S. 1126

(j)."

1 Parenthetically, to overcome this deficiency in proof on Petitioner's

part, she urges in her Argument (Pages 11 and 12 thereof) that Respond-

ent’s failure to deny her unproven allegations obliges this Court to

NAO TNS ESS ARNG A IL TIONS ay

wa

Moreover, what Petitioner’s counsel may have stated in

his written Brief and oral argument before the State Super-

intendent, or in the later hearing on appeal in the Com-

mon Pleas Court, forms no part of the Record, nor is it

entitled to any consideration here: Zadig v. Baldwin, 166

U.S. 485; Lynch v. New York, 293 U.S. 52.

The same is true with respect to Petitioner’s reference

5

and quotation from her Brief and argument in the Superior

and Supreme Courts of Pennsylvania (Page 5 of her peti- ;

tion). That reference and quotation are improper, form- c

ing no part of the Record, and cannot be used to sustain i

a claim of Federal jurisdiction: Lynch v. New York. supra, :

Under Pennsylvania Appellate Court practice, the ap-

pellant’s assignments of error constitute the pleadings on

appeal and the scope of the Appellate Court’s consideration

of the appeal is limited to the matters assigned as error. ;

In other words, nothing is in issue except matters specifically

raised thereby. The Petitioner (appellant in the Supreme

Court below) assigned four errors only (R. 64-68). In

none of them is a Federal question raised either directly

or by implication. Not until after the Supreme Court had

filed its per curiam Opinioa affirming the Superior Court

did the Petitioner, by her petition to the Supreme Court

for re-argument, attempt to raise a Federal question for

the first time. The Supreme Court denied the re-argument

petition without comment. Obviously, the attempt to en-

graft a Federal question on the proceeding is an after-

thought, without merit, and too late: American Surety

Co. v. Baldwin, 287 U.S. 156.

accept them as facts. Under the School Code, supra, and the uniform

practice in such cases, no answer by the Respondent to a petition for a

hearing de novo is required. On a hearing de novo, the ease is heard

anew and until and unless the Petitioner offered proof of her allegations,

there was nothing that Respondent could or was required to deny. See,

¢. @ Batrus’ Appeal, 148 Pa, Super, 587, 594.

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Furthermore, what the Petitioner now attempts to label

a Federal question was not decided at any stage below. The

Petitioner admits (Page 5 of her petition) that no specific

reference to any Federal question was made in the Opinions

of the State Superintendent and Common Pleas Court. The

Record shows that the Opinions and Orders of the Superior

and Supreme Courts are wholly devoid of any reference to

or consideration of any Federal question (R. 73, 80). These

facts, of themselves, resolve against the right of Federal

review: Southwestern Bell Tel. Co. v. Oklahoma, 303 U.S.

206.

The petition for the writ (Page 5 thereof) refers to the

dictum of the Superior Court that the Petitioner was not

being discriminated against because of her marriage (R.

76). The incomplete reference to this portion of the Snu-

perior Court’s Opinion is presumably intended to convey

the idea that a Federal question had been properly raised

and actually passed upon by the Court. Neither is true.

A eareful reading of the Superior Court’s Opinion shows

that it was using the word ‘‘discriminated”’ in its ordinary

and common usage, and not in the limited constitutional

sense. This is necessarily true because that Court was not

confronted with any specific constitutional issue, nor was

it essential to a proper disposition of the case.

As to the cases cited by the Petitioner to sustain the juris-

diction of your Honorable Court, none of them is in point

on the facts. We consider them, seriatim:

In Columbia Water Power Co. v. Columbia Electric Street

Railway, Light & Power Co., 172 U.S. 475, the question

whether there was an impairment of the obligation of plain-

tiff’s contract by subsequent state action clearly appeared

on the face of the Record from a reading of the complaint

and answer.

In Cumberland Coal Co. v. Board of Revision, 284 U.S.

23, a petition for re-argument was presented to the Supreme

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7

Court of Pennsylvania averring that a constitutional right

had been violated. The Reeord in that case showed that the

Pennsylvania Supreme Court actually considered that eon-

tention and expressly overruled it, which under the prece-

dents gave the Supreme Court of the United States jurisdic-

tion to review. It is clearly distinguishable from our ease.

As heretofore stated in this Brief, the Order of the Pennsyl-

vania Supreme Court denying the Petitioner’s application

for re-argument is barren of any consideration or deci-

sion respecting any Federal question.

In Yiek Wo v. Hopkins, 118 U.S. 356, the Reeord con-

tains proven facts establishing an administration of or-

dinanees directed against a particular class of persons

amounting, as the Court found, to a denial of the equal

protection of the laws. That is not true in our case. Here,

the Petitioner made scandalous and irrelevant allegations

which she never attempted to prove in the several forums

below, where the matter was heard do novo and where she

had opportunity to do so. Not having done that, it must

be apparent how baseless were her allegations in this 2

respect. :

In Indiana v. Brand, 808 U.S. 95, it appeared that the Q

Court below deemed that a Federal question was properly &|

before it and actually entertained and decided that ques- |

tion adversely to the Federal right asserted. Under sueh .

circumstances, it was clear that the Supreme Court of the

United States had jurisdiction to review the final jude-

ment entered below.

In Pierre vy. State of Louisiana, 306 U.S. 354, the Federal

question was raised at the inception of the proceedings

by a timely motion to quash the indictment and jury panels

and alleging adequate Federal grounds, and whieh the

Court below actually considered.

The case of Skinner v. Oklahoma, 316 U. S. 547, is in

the same category. There petitioner challenged the con-

ete ae a ee aR eee Te ne a Teer Weer ee eC eT ee

8

stitutionality of the Oklahoma Habitual Criminal Steriliza-

tion Act on the ground that it violated the Fourteenth

Amendment of the United States Constitution. In the

Court of original jurisdiction, petitioner filed an answer

squarely raising the constitutional issue which was consid-

ered and passed upon by the Court below.

In West Virginia State Board of Education v. Barnette,

et al., 87 L. Kd. Adv. Ops. 1171, 68 Sup. Ct. Rep. 1178, the

flag salute case, the Federal question was direetly put in

issue by the pleadings and decided by the Court below.

In Buchallter v. New York; Weiss v. New York; Capone y,

New York, 87 L. Hd. Ady. Op. 1088, 63 Sup. Ct. Rep. 1129,

it appeared that the remittiturs of the Court of Appeals

recited that the appellants in Brief and argument raised the

point that they had been denied their constitutional rights

under the Fourteenth Amendment to the United States Con-

stitution avd that this point was considered and necessarily

decided. Those particular facts distinguish that case from

ours.

Point 2.

The decision of the Superior Court, affirmed by the

Supreme Court of Pennsylvania, rests upon an adequate,

fair and substantial non-federal ground.

It is well settled that where the State Court decision

rests on an adequate, non-Federal ground, the Supreme

Court of the United States has no jurisdiction of the case:

Fox Film Corp. v. Muller, 296 U.S. 207; Bell Telephone Co.

v. Van Dyke, 296 U.S. 5383; Live Oak Water Users’ Assoc.

v. Railroad Commission, 269 U. S. 354; Woolsey v. Best,

299 U. S. 1.

Corollaries to the foregoing principle are that (a) be-

fore the Supreme Court of the United States will exercise

its right of review it must appear that the disposition of a

9

Federal question is necessary to the determination of the

cause; Honeyman vy. Hanan, 300 U.S. 14; and (b) that the

Supreme Court will decline jurisdiction where it appears

that the question presented by the appellant ‘is not, and

was not at the time of appealing, substantial in character”? :

Patterson v. Stanolind Oil & G. Co., 305 U.S. 376; Honey-

man v. Hanan, supra.

The application of these principles to the faets of our

‘ase resolves against Federal jurisdiction. The Petitioner

was discharged after striet conformity with the statutory

requisites of Pennsylvania. The Petitioner does not ques-

tion the procedure. Of the three statutory grounds for dis-

charge averred, the case was ultimately decided on the first

ground, namely, ‘‘incompeteney’’. The real question in-

volved was the construction of the word ‘*incompeteney”

as used in Section 2 of the Teachers’ Tenure Act, as amended

by Act of June 20, 1989, P. L. 482, 24 PLS. 1126 (a);

that is, whether incompetency was limited to educational

qualifications, or whether it included lack of physical ability

to perform the duties incident to the employment (See R.

5). A reading of the Record will disclose that the sub-

stantial issue in all of the several forums below was this

question. The only other matters urged and considered

below were also the construction and application of com.

panion sections of the School Laws of Pennsylvania. No

Federal question was broached until the belated petition

for re-argument in the Supreme Court of Pennsylvania.

That the decision in our case by the Supreme Court of

Pennsylvania rests upon adequate, fair and substantial

non-Federal grounds is apparent from a Pennsylvania case

almost on all fours with ours. We refer to Horosko v. Mt.

Pleasant Twp, Schl. Dist., 3385 Pa. 369. In that ease, the

definition of the same word, ‘inecompetency"’, as used in the

School Laws of Pennsylvania, was directly in issue. The

Pennsylvania Supreme Court, in a precedent-making deci-

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sion, held for a broad construction of that word, and that

it was not limited to educational qualifications. A petition

for certiorari was presented to your Honorable Court and

denied : 308 U. 8. 553.

One other matter requires brief comment and correction.

In the ‘‘Reasons’’ relied on by the Petitioner for the allow-

ance of the writ (Page 7 of the petition), it is stated that

the Pennsylvania State Education Association, the inter-

venor in the Supreme Court below, ‘‘submitted a petition

for joinder in the re-argument alleging the Federal ques-

tion involved’’. The Record shows otherwise (R. 83-84).

The intervenor’s petition raised no Federal question what-

soever. On the contrary, the intervenor confines itself

therein to questions involving solely Pennsylvania statutes

end the interpretation thereof by the Courts of Pennsyl-

vania. Nothing could be more convincing than that the

intervenor concluded that only non-Federal grounds were

involved in the case.

Conclusion.

The Respondent has not discussed the substantive merits.

We believe it to be unnecessary. The Petitioner has shifted

her ground in this Court. She now concedes that the con-

struction of the word ‘‘incompetency’’ by the Pennsylvania

Appellate Courts in this case, as including ‘‘lack of physical

ability’’ is final and binding upon this Court (Page 10 of the

petition) ; but now attempts to rely upon alleged adminis-

trative abuse without proof of any facts in support thereof.

On the contrary, the Superior Court, affirmed by the Su-

preme Court, expressly found that ‘‘we are unable to dis-

cover any indication of an abuse thereof’’ by the School

District (R. 77).

The Record itself discloses the absence of Federal juris-

dictional requisites, and we respectfully submit that the

57S POE, IS SRE OR TR SLA NMEA —

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case is, therefore, not a proper one for review by certiorari

in this Court, and that the petition for the writ should be

denied.

Hersert J. Harrzoe,

Attorney for Respondent.

(8467)