Respondents Reply Brief — Cusumano v. Ratchford

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-1423

JOSEPH VICTOR CUSUMANO and

SIDNEY M. HARMON,

Petitioners,

VS.

DR. C. BRICE RATCHFORD, et al..

Respondents.

PETITIONERS’ REPLY BRIEF

In Support of Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

SIDNEY M. HARMON

Vida, Missour: 65581

JOSEPH VICTOR CUSUMANO

Rt. 1, Box 43 F

Portage des Sioux, Missouri 63373

Petitioners in Pro Se

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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TABLE OF CONTENTS

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I. The Circuit Court relied totally on particular provi-

sions of the tenure regulations which are inapplicable

OO YOUF POTMIOMETS . .. 2. eee eee eee eees l

Il. The Court of Appeals erred in distinguishing the case

of Perry v. Sindermann, 408 U.S. 593 (1972), and

in not bringing its decision in harmony with deci-

sions from other circuitS ..............----208- 3

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TABLE OF AUTHORITIES CITED

Cases

Board of Regents of State Colleges v. Roth, 408 U.S. 564,

ep ah Oe ee, ee og co ce eee eeeenes 4

Johnson v. Fraley, 470 F.2d 179, 182 (4th Cir. 1972) .. 4

Moore v. Knowles, 482 F.2d 1069 (Sth Cir. 1973) ...... 4

Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570,

CE KndelecdseceCeecccesneeseeees ee 3, 4,5

Zimmerer v. Spencer, 485 F.2d 176, 177 (Sth Cir. 1973) 4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-1423

JOSEPH VICTOR CUSUMANO and

SIDNEY M. HARMON.

Petitioners,

VS.

DR. C. BRICE RATCHFORD. et al.,

Respondents.

PETITIONERS’ REPLY BRIEF

In Support of Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

ARGUMENT

I. The Circuit Court Relied Totally on Particular Provi-

sions of the Tenure Regulations Which Are Inapplicable to

Your Petitioners.

The respondents, in their opposition brief (Pages 4 and 6

wherein Section 3B of the Tenure Regulations is quoted), have

shown the reliance of the Circuit Court on provisions of the

Tenure Regulations, A-34 through A-57 of the Petition for

Writ (hereinafter “the Regulations”) which apply exclusively

to probationary teachers (teachers on term appointments be-

fore the expiration of their maximum probationary periods).

The particular provisions which the Circuit Court relied on

clearly do not apply to teachers, such as your petitioners, who

have completed their maximum probationary periods and were

thereafter reappointed. This inapplicability is demonstrated by

the Regulations which allow term appointments only before

the expiration of the maximum probationary period, and rec-

ognize only tenured appointments after the end of such pro-

bationary period (Sections 2D, 2A and 3A, pages 4, A-36 and

A-37 of the Petition for Writ).

In the instant case, there is no dispute that your petitioners

began their final probationary year without notification by

the respondents that their employment would be terminated.

Because there was no such notification at that time, the Regu-

lations mandated that your petitioners be reappointed after

they completed their maximum probationary periods (Section

4E, page A-41, Petition for Writ). As shown above, the Reg-

ulations require that such reappointments after the maximum

probationary period must be tenured. Respondents’ adoption

in their Regulations of the “Statement of Principles” and their

past practice (Pages 6, 9 and 11 of the Petition for Writ) also

require that tenured reappointments follow the completion of

the maximum probationary period.

The Regulations clearly classify the terminal one year term

appointments, which the respondents issued to the petitioners,

as term appointments (Sections 2A, 2B and 2C, pages 4 and

A-36 of the Petition for Writ). Also, it is undisputed that

these terminal term appointments began after the petitioners

completed their maximum probationary periods. Therefore,

such a term reappointment expresses a termination of em-

ployment and not merely a one-year reappointment which was

impermissible under Regulations recognizing only tenured re-

appointments following the maximum probationary period.

Neither respondents in their opposition brief, nor the Cir-

cuit Court in its opinion, have noted those provisions of the

Regulations which prohibit the recommendation of a term

appointment during the final probationary year (Sections 4A

and 4C, pages A-38 and A-39 of the Petition for Writ). Thus

the assertion, that ‘during any year of a term appointee’s pro-

bationary period, he [probationary teacher] may be subject

to what amounts to a notification of discharge . . . [with-

out due process]” found at page A-18 of the Petition for Writ

and at 507 F.2d 980, 984 (1974), selectively ignores the

pertinent prohibitions stated above. By denying the petition-

ers their day iff court, in which they can present evidence

showing that the policy and practice of the University required

a tenure appointment after the maximum probationary pe-

riod, the decision of the Circuit Court gives petitioners no

opportunity to prove their “property interest” as expressed in

Sindermann, infra.

The respondents in their opposition brief at page 6 also

cite Section 12 of the Regulations. This section (A-48 through

A-51 of the Petition for Writ) deals only with members of

the academic staff at the time of the adoption of the Regula-

tions on March 10, 1950. This section is inapplicable to

your petitioners because they were initially appointed many

years after such adoption.

II. The Court of Appeals Erred in Distinguishing the Case of

Perry v. Sindermann, 408 U.S. 593 (1972), and in Not Bring-

ing Its Decision in Harmony With Decisions From Other Cir-

cuits.

Respondents have posited in their brief at page 5 that peti-

tioners have cited cases which have been superseded by decisions

of the Supreme Court. In answer to this assertion, petitioners

state that those cases which petitioners cited in their brief have

not been superseded by Supreme Court decisions but have, in

effect, reinforced the decisions of the Supreme Court, as evi-

denced by restatements c° positions of various circuits, follow-

ing the decisions in Perry v. Sindermann, 408 U.S. 593, 33 L.

Ed. 2d 570, 92 S. Ct. 2694 and Board of Regents of State Col-

leges v. Roth, 408 U.S. 564, 33 L. Ed.2d 548, 92 S. Ct. 2701.

For example, in the case of Moore v. Knowles, 482 F.2d 1069

(Sth Cir. 1973), the Circuit Court stated, in withdrawing its

judgment against plaintiff's claim and in remanding it;

“In his petition for rehearing, Moore [the teacher] makes

two major points. The first is that he is entitled to a re-

mand to afford him the opportunity to offer proof tending

to show that while he lacked contractual or formal tenure

he nevertheless possessed a ‘property’ interest in his con-

tinued employment as defined by the new Sindermann

principles. Sindermann was decided at the trial level on

summary judgment. The Supreme Court remanded the

case to afford plaintiff an opportunity to prove his claim

of constructive tenure. . . . We agree with plaintiff [the

teacher] that he is entitled to his day in court under the new

standards laid down by Sindermann. We .. . remand the

case for further consideration by it [District Court] under

the new standards of Sindermann.” 482 F.2d at 1072.

The Fourth and Fifth Circuits of the Court of Appeals, in

cases decided after Roth, supra and Sindermann, supra, both

followed the argument of petitioners in asserting the right of

nontenured teachers to claim procedural due process rights

against employers under the decision of Sindermann, supra.

Johnson v. Fraley, 470 F.2d 179, 182 (4th Cir. 1972) and

Zimmerer v. Spencer, 485 F.2d 176, 177 (Sth Cir. 1973).

The respondents also quoted from the opinion of the Eighth

Circuit Court to the effect that “The entire thrust of the tenure

a oe

Regulations is to avoid the de facto tenure hypothesized in

Sindermann, supra.” (Page 6 of respondents’ brief). The re-

spondents in adopting the language of the Eighth Circuit Court

imply that decades of practice and procedures previously fol-

lowed can be swept under the boards, to the detriment of pe-

titioners, and without recourse. In the opinion of the Eighth Cir-

cuit Court, it is suggested that the refusal to give a tenure

appointment to petitioners may have been administrative neglect

or oversight as to notice of termination (A-22 and A-23 of the

Petition for Writ and 507 F.2d 980, 986 (8th Cir. 1974)). Pe-

titioners have from the time of the filing of this suit, offered to

prove that the previous practice has been constant at the Uni-

versity in that no notice was given unless a teacher was to be

terminated, and that a continuous contract automatically fol-

lowed the maximum probationary period.

CONCLUSION

For these reasons and those already presented in the Petition

for Certiorari, petitioners respectfully submit that the Court

should grant certiorari in this case.

Respectfully submitted

SIDNEY M. HARMON

Vida, Missouri 65581

Petitioner in Pro Se

JOSEPH VICTOR CUSUMANO

Route 1, Box 43 F

Portage Des Sioux, Missouri 63373

Petitioner in Pro Se

Certificate of Service

Three true and correct copies of the foregoing Petition for

Writ of Certiorari were mailed this 28th day of August, 1975,

postage prepaid to Mr. Jackson A. Wright, 227 University Hall,

Columbia, Missouri 65201.

Sidney M. Harmon