Petition — Kornit v. Board of Education

1977

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1977

No. R'7-532

HARVEY S. KORNIT,

Petitioner,

against

BOARD OF EDUCATION of the

PLAINVIEW-OLD BETHPAGE SCHOOL DISTRICT

PLAINVIEW, NEW YORK,

Respondent.

PETITION (WITH APPENDICES) FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Harvey S. Koryit

Petitioner Pro Se

70-25 Yellowstone Blvd.

Forest Hills, N. Y. 11375

Tel. No. 212-261-8578

TABLE OF CONTENTS

PAGE

PET Ter E TTT eT Tre Tre Tre TT eye 1

PPC EPEP TET TT TET TCTETTTCTITT LT PLT Te 2

SS II 6. oF 0c cccc Kdcoseseccnccocecee 2

ND CE vicncccdscbennsnsedacseceesaccas 3

eo icccaccccinsccncessessase 7

Reasons for Granting the Writ .................0. 9

SD “nc wadneconneRessondedsenincentecsvous 19

Index to Citations

Cases:

slrnett v. Kennedy, 416 U.S. 134 (1974) .......... 17

Board of Education of Union Free School District

No. 1 of Towns of Bethlehem, Coeymans and

New Scotland v. Wilson, 303 N.Y. 107 (1951) ... 10

Central School District No. 1 of Towns of Col-

chester, Hamden, Hancock, Walton, Andes &

Tomkins, Delaware County v. State, 1963, 18

A.D.2d 948, 237 N.Y.S.2d 682, affirmed 13 N.Y.

FR FR rrr eo 10

Collins v. Wilson (Carey), 416 U.S. 977 (1974), 421

Bee Se EE Sduvcvasduoscue cd cueakkuneedns 16, 17

Gibson vy. Berryhill, 411 U.S. 564 (1973) ........ 16

Hortonville Joint School District No. 1 v. Horton-

ville Education Assn., 426 U.S. 482 (1976) ..... 13, 16

Monell v. Dept. of Social Services of the City of

New York, 5382 F.2d 259, 263-264 (2d Cir. 1976),

certiorari granted, 45 U.S.L.W. 3005 (U.S. July

BS | y * Beer rie re rere. 9, 11,13

ul

PAGE

Monroe v. Pape, 365 U.S. 167 (1961) ........ 9, 10, 12, 13

Sanford v. Wilson (Carey), 416 U.S. 977 (1974),

OU Ef Poe eet See oe 16,17

Sniadach v. Family Finance Corporation of Bay

g © fo & £) geperrrrerr rT Terre 17

Tumey vy. Ohio, 273 U.S. 510 (1927) ............. 16

Ward v. Village of Monroeville, Ohio, 409 U.S. 57

DE ausadisbabidsadakeis sha calukae caleet ene 16

CONSTITUTIONAL AND Statutory Provisions:

United States Constitution:

ee cheekaavudeus 12, 13

Fourteenth Amendment .................... 12, 14, 38

United States Supreme Court Jurisdiction, 28

SED ae cetaducuee tube tbeveekekee 2

federal Civil Rights Act of 1871, 42 U.S.C. 1983 . . .2, 3,8,

9, 12, 14

Federal District Courts Subject Matter Jurisdic-

Ss Se Ss EEE coo. uu sc nuccacesuceseees 8

I’ederal Wage Garnishment Law, 15 U.S.C. §§ 1672,

4c cawaeweniede euheacuneeas d4deee seus 3, 4, 7, 17

New York General Construction Law § 66 ........ 9, 10

New York former General Corporation Law §3

a a 9, 10

New York General Municipal Law §2............ 9, 10

New York Taylor Law (New York State Public

Employees’ Fair Employment Act), N.Y. Laws,

1967, ch.392, as amended 1969, New York Civil

Service Law §§ 200-14 ............ 3, 5, 8, 12, 14, 15, 18

IN THE

Supreme Court of the Rnited States

October Term, 1977

No.

a.

.

Harvey S. Kornit,

Petitioner,

against

Boarp or Epvcation of the

PLainview-O_p Betupace Scuoou District

Piainview, New York,

Respondent.

a.

PETITION (WITH APPENDICES) FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

The petitioner, Harvey 8. Kornit, prays that a writ of

certiorari be issued to review the final judgment of the

United States Court of Appeals for the Second Circuit

entered in the Office of the Clerk on September 15, 1976.

A Petition for Rehearing was submitted to the Court of

Appeals for the Second Cireuit on September 29, 1976.

The Petition for Rehearing was denied on July 19, 1977.

Opinions Below

The opinion of the District Court dismissing this action

on substantive grounds is not reported and is reproduced

as Appendix I, infra at la-Sa. The opinion of the District

Court denying a motion to amend defendant parties is un-

reported and is reproduced as Appendix II, infra at 6a-7a.

The opinion of the United States Court of Appeals for the

Second Circuit remanding that this action be dismissed for

lack of subject matter jurisdiction is reported at 542 F.2d

592 (2d Cir. 1976) and is reproduced as Appendix ITI, infra

at 8a-lla. The Order of the United States Court of Appeals

for the Second Circuit denying a Rehearing is not reported

and is reproduced as Appendix IV, infra at 12a.

The Order of the United States District Court for the

Eastern District of New York is not reported and is re-

produced as Appendix V, infra at 13a.

Jurisdiction

The Second Circuit rendered its judgment remanding

with instructions to dismiss because of the lack of subject

matter jurisdiction on September 15, 1976. A Petition for

Rehearing submitted on September 29, 1976 was denied on

July 19, 1977. The jurisdiction of the Supreme Court of

the United States is requested under 28 U.S.C. § 1254(1).

Questions Presented

1. Whether the Board of Education of the independent

Plainview-Old Bethpage School District is amenable as a

“person” under the Civil Rights Act of 1871, R.S. § 1979,

42 U.S.C. § 1983 and therefore subject to suit for violation

of petitioner’s civil rights under Article Fourteen of the

United States Constitution.

2. Whether the Superintendent of Schools and the Acting

Superintendent of Schools had a pecuniary interest suffici-

ent to disqualify them from acting in a position of adjudica-

tion of finality which led to the garnishment of earned

woges for work performed from the salary of the petitioner,

an employee of the School District.

3. Whether the School Business Administrator of the

Plainview-Old Bethpage School District acted in an uncon-

stitutional and unlawful manner when he garnished the

earned wages of petitioner without a lawful court order of

execution of garnishment and in amounts excessive of the

limitations of the Federal Wage Garnishment Law.

4. Whether the complaint to the United States District

Ccurt for the Eastern District stated a cause of action

because of the lack of Constitutional Due Process and the

vielation of petitioner’s civil rights under the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution when his earned wages for work performed

were garnished from his salary by parties with a pecuniary

interest and without a lawful court order.

5. Whether the New York State Taylor Law, Civil

Service Law, Sections 200-14, as amended in 1969, places

an unfair burden on the collective bargaining process by

ofiering free unpaid labor to school districts through ad-

judication by agents of boards of education with a pecuni-

ary interest should a contract not be signed and should a

werk stoppage occur.

Statutes Involved

Federal Civil Rights Act of 1871 § 1; 42 U.S.C. 1983 (1970).

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

sudjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

4

the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

Federal Wage Garnishment Act; 15 U.S.C. §§ 1672, 1673.

(Effective July 1, 1970)

§ 1672. Definitions

For the purpose of this title:

(a) The term “earnings” means compension paid or pay-

able for personal services, whether denominated as wages,

salary, commission, bonus, or otherwise, and includes peri-

odic payments pursuant to a pension or retirement program.

(b) The term “disposable earnings” means that part of

the earnings of any individual remaining after the deduc-

tion from those earnings of any amounts required by law

to be withheld.

(c) The term “garnishment” means any legal or equita-

ble procedure through which the earnings of any individual

are required to be withheld for payment of any debt.

§ 1673. Restrictions on Garnishment

(a) Except as provided in subsection (b) and in section

1675, the maximum part of the aggregate disposable earn-

ings of an individual for any work week which is subjected

to garnishment may not exceed

(1) 25 per centum of his disposable earnings for

that week, or

(2) the amount by which his disposable earnings

for that week exceed thirty times the Federal min-

imum hourly wage prescribed by section 6(a)(1) of

the Fair Labor Standards Act of 1938 in effect at

the time the earnings are payable, whichever is less.

~

In the case of earnings for any pay period other

than a week, the Secretary of Labor shall by regula-

tion prescribe a multiple of the Federal minimum

hourly wage equivalent in effect to that set forth in

paragraph (2)

(b) The restrictions of subsection (a) do not apply in

the case of

(1) any order of any court for the support of

any person.

(2) any order of any court of bankruptcy under

Chapter XIII of the Bankruptcy Act.

(3) any debt due for any State or Federal tax.

(c) No court of the United States or any State may

make, execute or enforce any order or process in violation

of this section.

New York State Taylor Law (New York Public Employees’

Fair Employment Act) 1967, as amended in 1969 to include

2 for 1 penalty, effective April 1, 1969. Civil Service Law

Chapters 200-14. Pertinent parts:

§ 210. 1. No public employee or employee organization

shall engage in a strike, and no public employee or employee

organization shall cause, instigate, encourage, or condone

a strike.

§ 210. 2. (d) Determination. In the event that it appears

that a violation of this subdivision may have occurred, the

chief executive officer of the government involved shall, on

the basis of such investigation and affidavits as he may

deem appropriate, determine whether or not such violation

has occurred and the date or dates of such violation. If the

chief executive officer determines that such violation has

occurred, he shall further determine, on the basis of such

further investigation and affidavits as he may deem appro-

priate, the names of employees who committed such viola-

tion and the date or dates thereof. Such determination shall

not be final until completion of the procedures provided

for in this subdivision.

§ 210. 2. (g) Payroli deductions. Not earlier than thirty

nor later than ninety days following the date of such

determination, the chief fiscal officer of the government in-

volved shall deduct from the compensation of each such

public employee an amount equal to twice his daily rate of

pay for each day or part thereof that it was determined

that he had violated this subdivision; such rate of pay to

be computed as of the time of such violation. (Technical

part omitted)

§ 210. 2. (h) Objections and restoration. Any employee

determined to have violated this subdivision may object to

such determination by filing with the chief executive officer,

within twenty days of the date on which notice was served

or mailed to him pursuant to paragraph (e) of this sub-

division, his sworn affidavit, supported by available docu-

mentary proof, containing a short and plain statement of

the facts upon which he relies to show that such determina-

tion was incorrect. Such affidavit shall be subject to the

penalties of perjury. If the chief executive officer shall

determine that the affidavit and supporting proof estab-

lishes that the employee did not violate this subdivision, he

shall dismiss the objection and so notify the employee. If

the chief executive officer shall determine that the affidavit

and supporting proof raises a question of fact which, if

resolved in favor of the employee, would establish that the

employee did not violate this subdivision, he shall appoint

a hearing officer to determine whether in fact the employee

shall bear the burden of proof. If the hearing officer shall

determine that the employee failed to establish that he did

not violate this subsection, the chief executive officer shall

so notify the employee. If the chief executive officer sustains

an objection or the hearing officer determines on a pre-

ponderance of the evidence that such employee did not

violate this subdivision, the chief executive officer shall

forthwith restore to the employee the tenure suspended pur-

suant to paragraph (f) of this subdivision, and notify the

chief fiscal officer who shall thereupon cease all further

deductions and refund any deductions previously made

pursuant to this subdivision. The determinations provided

in this paragraph shall be reviewable pursuant to article

seventy-eight of the civil practice laws and rules.

Statement of the Case

The plaintiff in this action is a Social Studies teacher in

the independent Piainview-Old Bethpage School District on

Long Island in New York State. The defendant is the Board

of Education, whose members acting as a body corporate,

are the administrative trustees of the Plainview-Old Beth-

page School District.

In September of 1972 a four-day work stoppage took

place at the School District. The plaintiff does not deny

his involvement in this work stoppage, but contends that

the administrative judicial proceedings which followed the

work stoppage allowing agents of the Board of Education

with a substantial pecuniary interest to make determina-

tions of guilt and to order the deduction of fines from

employees’ earned wages for work performed may be a

significant factor which caused the work stoppage in the

first instanee. In addition earned wages were garnished in

violation of the Federal Wage Garnishment Law and with-

out » prior impartial hearing.

In his original complaint, filed April 8, 1975, plaintiff

challenged, on constitutional grounds, the New York State

Taylor Law sections which allowed those administrative

judicial proceedings as well as the actual proceedings which

took place. Jurisdiction was initially based on the Four-

teenth Amendment to the United States Constitution and on

both 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

In an opinion and order, decided July 22, 1975, the Dis-

trict Court, the late Honorable Orrin G. Judd, granted

defendant’s motion to dismiss on substantive grounds, not

ruling on the jurisdictional question, la-5a.

An appeal was begun to the United States Court of

Appeals for the Second Circuit after plaintiff was granted

an extension of time on motion to the District Court on

September 17, 1975. On May 11, 1976 a motion by plaintiff

to amend the defendant parties was denied by the District

Court. Memorandum and Order, 6a-7a.

On September 15, 1976, the United States Court of Ap-

peals vacated the judgment of the District Court with

instructions to dismiss for lack of subject matter jurisdic-

tion, 8a-lla.

On July 19, 1977, the original panel at the United States

Court of Appeals for the Second Circuit denied plaintiff’s

Petition for Rehearing, 12a.

On September 15, 1977 an order was issued by the Dis-

trict Court, pursuant to the Court of Appeals for the

Second Circuit decision, whereby the action was dismissed

for lack of subject matter jurisdiction, 13a.

Reasons for Granting the Writ

I.

In holding that the defendant Board of Education could

not be considered a “person” for purposes of the Civil

Rights Acts of 1871, 42 U.S.C. § 1983, and was thus not

amenable to suit under that Act as per a decision uf the

Court of Appeals for the Second Circuit, Monel! v. Depart-

ment of Social Services, 532 F.2d 259, 263-264 (2d Cir.

1976), certiorari granted, 45 U.S.L.W. 3005 (U.S. July 2,

1976) No. 75-1914.

In the Monell, supra, decision the United States Court of

Appeals for the Second Circuit reasoned that the Board

of Education was part of the City of New York, and that

since the City of New York, as a municipality, was exempt

from suit under the Civil Rights Act of 1871, 42 U.S.C.

§ 1983 as per the decision of the United States Supreme

Court in Monroe v. Pape, 365 U.S. 187-92 (1961), the Board

of Education was exempt as well.

In his petition for rehearing, plaintiff indicated that the

Plainview-Old Bethpage School District was an independent

New York State instrumentality and not part of any city,

town, county or village. The defendant in this action indi-

cated that under the General Construction Law § 66 of New

York State a school district is included as a municipal

corporation, but this law which is a list of classifications is

based on the now repealed General Corporation Law which

had a preface by the consolidator of laws that classifications

under the repealed General Corporation Law must give way

‘ to other laws if they are in conflict. The General Construc-

_ tion Law is in conflict with the General Municipal Law

which does inelude cities, towns, counties and villages

under its jurisdiction, but not school districts, which are

10

under the aegis of the Department of Education of the

State of New York. Indeed there are two court decisions

which support the contention of plaintiff:

In Board of Education of Union Free School District

No. 1 of Towns of Bethlehem, Coeymans and New Scotland

v. Wilson, 1951, 303 N.Y. 107, it was decided that a school

district, though defined as a municipal corporation under

Section 3 of the former General Corporation Law, has no

territorial integrity and is always subject to the reserve

power of the state, exercised through the administrative

officers in the Education Department to change its territory

according to current education needs and educational prin-

ciples. In another New York Court of Appeals decision,

Central School District No. 1 of Towns of Colchester,

Hamden, Hancock, Walton, Andes and Tomkins, Delaware

County v. State, 1963, 18 A.D.2d 943, 237 N.Y.S.2d 682,

affirmed 13 N.Y.2d 1031, 245 N.Y.S.2d 602, stated that the

Section 3 of the former General Corporation Law which

included the definition of municipal corporations was re-

quired to yield to the General Municipal Law § 2, which does

not include school districts within the definition of munici-

pal corporations for purpose of determining whether the

school district was entitled to compensation for state’s

condemnation of land which the school district held for

school purposes.

Thusly, the designation of municipal corporation to

school districts within the General Construction Law § 66

(or the former General Corporation Law § 3, repealed in

1974) is not as legally binding as opposed to that designa-

tion for a city, town, county or village in the General

Municipal Law of New York State, § 2.

However it must be pointed out that suit was not brought

against the Plainview-Old Bethpage School District but

11

against the Board of Education of the School District. The

Board of Education is the body corporate of trustees of

the School District and not barred as officials to suit under

Monroe v. Pape, supra, 191-192, should the school district

be considered as a municipal corporation by this Court.

A board of education is not a synonyme for a school

district. A board of education, acting as administrative

trustees, overseers the operation of a school district, ex-

pressing its will by a majority consensus through a super-

intendent of schools and other agents. Almost all of the

760 school districts of New York State have a board of

education elected by the adult inhabitants of the school

district area. The monies for the operation of the school

district come from contributions on a per capita student

population from the New York State government and from

the school taxes on residential and industrial property

which is determined and levied by the school district after

approval by the Board of Education and the local voters.

Other funds come from the federal government for special

programs. No funds are obtained from a municipality and

the Township of Oyster Bay in which the Plainview-Old

Bethpage School District is located only serves as a collec-

tion agency for the school district’s taxes.

Even in Monell, supra, which is presently before the

United States Supreme Court, the distinction must be

made in the meaning and function between the Board of

Education and the City School District of the City of New

York (its official name). The Board of Education in the

City of New York is not elected and its tax base is not

independent of general city funds, but once its members

have been chosen (2 are chosen by the Mayor and 1 is

chosen by each of the five borough presidents for a total

of 7 members) it functions as an independent board of

trustees of the school system. Funds are obtained from

12

New York City, New York State and from the Federal

government for special programs.

Neither the City School District or the Board of Edu-

cation of the City School District can be considered as

departments of New York City. The City School District

is not a mayoral agency or part of the City of New York

as would be the case with the Department of Social Services

or the Department of Traffic. It acts under the direction of

the Department of Education of the State of New York.

The Board of Education of the City School District of the

City of New York act as the administrative trustees of the

school district and can not be substituted in name for the

school district which they administer as a body corporate,

called the Board of Education.

It is the contention of this petitioner that the Boards of

Education of both the Plainview-Old Bethpage School Dis-

trict and the City School District of the City of New York

are composed of individuals and persons acting jointly as

administrative trustees for their respective school districts

and are thus fully amenable to justifiable suit under the

Civil Rights Act of 1871, 42 U.S.C. 1983.

Suit was brought by this petitioner against the Board of

Education of the Plainview-Old Bethpage School District

since the Board of Education are the administrative trus-

tees of funds which were garnished unconstitutionally from

the earned wages of petitioner by agents of the Board of

Education. This action by agents of the Board of Education

acting under the New York State Taylor Law is a violation

of the Fourteenth Amendment to the United States Con-

stitution in regard to the requirements for Due Process,

and an unconstitutional and tortious action under the

Fourth Amendment to the United States Constitution,

namely the seizure of earned wages without Constitutional

13

Due Process. The matter is as serious as if the monies

had been removed from my home in violation of the Fourth

Amendment.

Monroe v. Pape, supra, should not be used to prevent

suit against any government official who might have com-

mitted any unconstitutional acts for his own benefit or for

the benefit of the instrumentality in which he is an official,

nor should it serve as a protection for an instrumentality

which has directly benefitted from the unconstitutional acts

of its officials. In the present action suit was brought against

the Board of Education as they are the trustees of the

funds which were unconstitutionally and illegally garnished

from the earned wages for work performed by the peti-

tioner upon adjudication by agents of the Board of Educa-

tion who had a substantial pecuniary interest because of

major responsibilities in the preparation of the school dis-

trict budget.

The obiter dictum of the decision in Hortonville Joint

School District No. 1 et al. v. Hortonville Education Assn. et

al., 426 U.S. 428 (1976), in Point II, Part B, first paragraph,

indicated that if there were a financial conflict of interest

on the part of the Board of Education in that case, there

would apparently be a conflict of interest in the decision

making process. The United States Supreme Court found

no pecuniary interest in the Hortonville, supra, action, but

the current matter before the United States Supreme Court

has all of the pecuniary ingredients mentioned in the obiter

dictum of the Hortonville, supra, decision.

For the above stated reasons the writ here sought should

be granted. Alternatively, the decision below should be

vacated and remanded for reconsideration, or the Supreme

Court could defer consideration pending its decision in

Monell et al. v. Department of Social Services of the City

14

of New York et al., supra, in which oral argument is

scheduled to be heard on October 12, 1977.

In holding that suit was barred against defendant Board

of Education under 42 U.S.C. § 1983 even though suit

alleged violation of the Fourteenth Amendment by agents

of the Board of Education with a significant pecuniary in-

terest who made determinations that plaintiff had partici-

pated in a work stoppage in violation of the New York

State Taylor Law and who subsequently garnished penal-

ties from his earned wages for work performed in violation

of several United States Supreme Court decisions.

This action is brought on constitutional grounds to the

attention of the federal courts, but human logic plays an

important role in the various aspects of this action. Under

the New York State Taylor Law a school district and its

employees are required to bargain collectively in order to

reach a contractual agreement. However the Taylor Law

also states that the school district employer may fine the

employee two days’ fine if agreement is not reached and a

strike occurs for each day that an employee is not at work.

Thus an employee loses one day’s wages for the day he was

not at work and in addition one day’s wages which were

earned at work. Thus what may be a threat and a fine for

the employee becomes a temptation and reward for a

school district. Although this petitioner feels that the loss

of all wages, whether earned or not, would not have neces-

sarily occurred had this temptation not existed, he has

brought suit only to recover that part of his wages for work

performed which were garnished.

The adjudication of school district employees involved

in a work stoppage is conducted by the Superintendent of

15

Schools by mail. Objections to his determination may be

made by mail. If he feels that there is merit to an objection

he refers the individual to a hearing officer. This is done

in about 2% of the cases. The hearing officer is appointed

contractually by the Board of Education and/or Superin-

tendent of Schools and is paid school funds. He may or

may not be a lawyer, though a lawyer was obtained in those

instances in which individuals were granted hearings. The

hearing officer is not an employee of New York State and

since he is not chosen bilaterally, that is, by the school board

and the bargaining agent, he certainly has no judicial au-

thority in accordance with constitutional due process to

make judicial determinations which will lead to the garnish-

ment of earned wages of New York State employees.

However it is the Superintendent of Schools who as the

chief administrative officer is empowered under the Taylor

Law to make judicial determinations of guilt or innocence.

The Superintendent of Schools also prepares the Superin-

tendent’s Budget for examination and any revision by the

Board of Education before the budget is submitted to the

school district voters. Thus the Superintendent of Schools

has a pecuniary interest in the determination of guilt or

innocence. One may consider guilt to be obvious, so it does

not matter who the judge is, but it is not only a violation of

constitutional rights to due process, but the judicial involve-

ment of someone with an obvious substantial pecuniary

interest may be a major cause for the work stoppage to

have occurred. It should also be mentioned that the Superin-

tendent of Schools as chief executive officer is designated

under the Taylor Law as the official chief collective bargain-

ing negotiator. Thus under the Taylor Law the Superin-

tendent wears many hats and there is an obvious conflict

of interest when he is involved in a judicial function which

will lead to the garnishment of earned wages for work

16

performed by employees. His pecuniary interest though

not personal and direct is indirect because of his involve-

ment with the Superintendent’s Budget. The pecuniary

interest becomes more substantial with each day of a work

stoppage and significant budget savings can be achieved by

the use of unpaid labor for work performed.

The judicial procedures under the Taylor Law are in

direct violation of the principle of Tumey v. Ohio, 273 U.S.

510 (1927) and Ward v. Village of Monroeville, Ohio, 409

U.S. 57 (1972), which indicates that a person with a sub-

stantial pecuniary interest, whether personal and direct or

indirect as major responsibility for instrumentality budget

preparation cannot act in a judicial capacity.

In addition, Ward v. Village of Monroeville, Ohio, supra,

defines another principle: that the court of instance and

finality must be as impartial as any subsequent court of

appeal and a lack of competency is not excused because a

review or trial de novo is available.

Gibson v. Berryhill, 411 U.S. 564 (1973), indicates that

both of these principles are applicable to administrative

proceedings. The obitur dictum of Hortonville v. Horton-

ville, supra, adds new strength to this petitioner’s suit.

Hortonville, supra, implies that a Board of Education with

a pecuniary interest would not be permitted to make judicial

determinations. Agents of the Board of Education would

by an extension of logic be bound by the same restriction.

Cases concerning the New York State Taylor Law ap-

peared before the United States Supreme Court and were

decided on May 13, 1974. These parallel cases were Sanford

et al. v. Wilson et al., 416 U.S. 977 (1974) and Collins

et al. v. Wilson et al., 416 U.S. 977 (1974). These cases

were appeals from the Court of Appeals of New York. This

Court vacated judgments and remanded the cases to the

Court of Appeals of New York for further consideration in

17

light of Arnett v. Kennedy, 416 U.S. 134 (1974). The Court

of Appeals of New York State reaffirmed its decision in

both cases on December 19, 1974. 35 N.Y.2d 547. The

petitioners returned to the United States Supreme Court

and in a memorandum decision the appeals were dismissed

for want of a substantial federal question. Mr. Justice

Douglas, Mr. Justice White and Mr. Justice Marshall indi-

cated that they would note probable jurisdiction and would

set the case for oral argument. 421 U.S. 973.

The current action adds two significant dimensions which

were not present in Arnett v. Kennedy, supra. Arnett v.

Kennedy did not involve the pecuniary interest on the part

of a decision maker nor did it involve the garnishinent of

earned wages for work performed by the immediate em-

ployer. The current action has both of these aspects clearly

present, and this case should be judged on its own merits.

Under the United States Supreme Court decision in

Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337

(1969), wages are protected from garnishment prior to an

impartial hearing. A party with a substantial pecuniary

interest can not serve in a judicial capacity. The Superin-

tendent of Schools has such a pecuniary interest.

Since the petitioner’s wages were garnished in extreme

excess of the limits of the Federal Wage Garnishment Law,

a violation of that law has also occurred. The Federal Wage

Garnishment Law is not limited to commercial transactions

and is fully applicable to the garnishment of wages for the

payment of fines. If the Federal Wage Garnishment Law

were restricted to commercial transactions and debts, there

would have been no need to mention the three exempt cate-

gories which apply to family support payments or to deduc-

tions under the Bankruptcy Act, both of which are court

imposed deductions, or to tax indebtedness which can also

18

be appealed to tax and civil courts before deductions are

imposed.

Thus the Taylor Law allows persons with a pecuniary

interest to make determinations of guilt or innocence as to

violations of the Taylor Law, and to make deductions from

wages without a prior impartial hearing and in violation

of the limitations of the Federal Wage Garnishment Law.

In addition the Taylor Law Penalty Provisions (Amend-

ments of 1969) place an unfair burden on the collective

bargaining process by offering to school districts free un-

paid labor if no collective bargaining agreement is reached

and a work stoppage does occur. The advance knowledge

that agents of the Board of Education will hold “court” in

the first instance of finality can also effect the collective

bargaining process so that a work stoppage might more

likely occur.

On their face and as applied the Taylor Law Penalty

Provisions are repugnant to the United States Constitution.

If this Court decides not to vacate and remand this case

(or grant the writ) as suggested in Point I, supra, it is

respectfully urged that the writ should be granted for the

reasons urged in this point. Alternatively, the Supreme

Court could defer consideration of this petition pending its

decision in Monell et al. v. Department of Social Services

of the City of New York, supra, for which oral argument

is due to be presented on October 12, 1977.

19

CONCLUSION

For all of the foregoing reasons this petition for a writ

of certiorari to the United States Court of Appeals for the

Second Circuit should be granted and the judgment in

this case should be vacated and remanded for further

proceedings.

Respectfully submitted,

Harvey S. Kornit

Petitioner Pro Se

70-25 Yellowstone Blvd.

Forest Hills, N. Y. 11375

Tel. No. 212-261-8578

APPENDICES

la

APPENDIX I

UNITED STATES DISTRICT COURT

Eastern District or New York

a.

—

Harvey S. Kornir,

Plaintiff,

v.

Boarp or Epvucation, PLarnview-O_p BeTHPAGE

ScHoot District, New York,

Defendant.

ay.

vv

No. 75 Civ. 518

Decided July 22, 1975

Harvey S. Kornyirt,

pro se, Plaintiff

JosePH W. CAMPANELLA, Esq.

Attorney for Defendant

The Late Honoras_e Orrin G. Jupp,

District Judge

Jupp, J.:

MEMORANDUM AND ORDER

Defendant has moved to dismiss this civil rights action

for improper service and for failure to state a valid claim.

2a

Appendiz I

Facts

Plaintiff, a social studies teacher employed by the de-

fendant Board of Education, sues to recover $379.84 de-

ducted from his salary as a penalty because of his partici-

pation in an illegal strike. He also seeks a determination

that the Taylor Law (New York Civil Service Law § 210)

is unconstitutional in permitting a deduction from wages

without prior hearing.

The summons and complaint was served on an assistant

bookkeeper of the Board of Education by a Deputy United

States Marshal.

The complaint is 30 pages long with much more argu-

ment than facts. Plaintiff alleges that he took part in a

four-day work stoppage on September 6, 7, 8 and 11, 1972.

He was notified on September 27, 1972 by the Superin-

tendent of Schools that the Superintendent had determined

thet his absence constituted participation in a strike, in

violation of Section 210(2)(h) of the Civil Service Law,

but that he might file an affidavit within twenty days setting

forth any facts relied on to show this determination was not

correct. Plaintiff responded by a letter which asked for

a hearing but did not state any reason for his absence from

work. The Acting Superintendent thereafter informed him

that the affidavit failed to establish that his absence was

not in violation of the Taylor Law and that therefore his

objection was denied. On his October pay check a deduction

was made for the four days in which he had not been

performing his duties, a deduction which was not disputed.

The November and December pay checks deducted also

the amount paid for four additional days as a penalty

under the Taylor Law. Plaintiff’s attack is based primarily

on an alleged lack of procedural due process and lack of

3a

Appendia I

an impartial hearing before deduction from wages, which

plaintiff considers to be a garnishment of wages. Sniadach

v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820 (1969).

He asserts also that the Board of Education could not

provide him an impartial decision because all its members

had a pecuniary interest in the decision. Gibson v. Berry-

hill, 411 U.S. 564, 93 S.Ct. 1689 (1973) and Ward v. Village

of Monroeville, 409 U.S. 57, 93 S.Ct. 80 (1972). The alleged

pecuniary interest is said to result from the fact that the

Superintendent of Schools and all his assistants and ad-

visors have a responsibility to balance the school budget,

to determine expenditures, and to seek sources of revenue,

and therefore they cannot act in a detached manner in

determining the guilt or innocence of affected employees.

Discussion

1. The service of process conforms substantially with

Rule 4(d)(3) of the Federal Rules of Civil Procedure.

Since the summons and complaint reached the responsible

officials, the Court will not require re-service.

2. The claim of jurisdiction over the Board of Education

under 42 U.S.C. § 1983 raises difficult questions. Since the

decision of the Supreme Court in City of Kenosha v. Bruno,

412 U.S. 507, 93 S.Ct. 222(2) (1973), a number of courts

have decided that a school board is not a “person” under

§ 1983. Patton v. Conrad Area School District, 388 F. Supp.

410 (D. Del. 1975); Seaman v. Spring Lake Park Inde-

pendent School District, 387 F. Supp. 1168 (D. Minn. 1974) ;

Weathers v. West Yuma County School District, 387 F.

Supp. 552 (D. Colo. 1974); Howell v. Winn Parish School

Board, 377 F. Supp. 816 (W.D. La. 1974).

4a

Appendiz I

This circuit has not dealt directly with the issue. Newman

v. Board of Education, 508 F.2d 277 (2d Cir.), cert. denied,

US. , 95 S.Ct. 1447 (1975); Lombard v. Board of

Education, 502 F.2d 631 (2d Cir. 1974), cert. denied,

US. , 95 S.Ct. 1400 (1975); Vega v. Civil Service Com-

mission, 385 F. Supp. 1376 (S.D.N.Y. 1974).

Lack of jurisdiction under § 1983 cannot be cured in this

case by 28 U.S.C. § 1331, since the necessary $10,000 juris-

dictional amount for federal question jurisdiction does not

exist.

3. The complaint is not in conformity with F.R. Civ. P.

8(a)(2), which requires “a short and plain statement of the

claim”. In the absence of objection by the defendant on that

ground and in the interest of expedition and economy, this

court will nevertheless proceed to the merits.

4. Even if the deduction is treated as a garnishment, it

does not constitute a violation of the Sniadach rule if plain-

tiff was entitled to a judicial hearing before a deduction.

The purpose of a hearing, moreover, is not just to listen to

people talk but to decide issues of fact or law. In this case

there is no dispute that plaintiff engaged in an unauthorized

strike. His own complaint states on page 5 that there was a

work stoppage at the Plainview-Old Bethpage School

District on September 6, 7, 8 and 11, 1972 and it does not

deny that he took part in it, as set forth in the notice to

him from the Superintendent of Schools. No attack appears

to be made on the right of the state to impose a penalty on

a teacher who engages in an unauthorized strike.

Plaintiff’s failure to dispute his participation in the strike

is not excused by the fact that he believed that the Board

of Education could not give him an impartial hearing. In

the first place, his case is not supported by the cases he

cites. There is no indication that any school official had a

da

Appendiaz I

personal pecuniary interest which would be affected by

whether plaintiff’s absence from work was authorized or

excusable, as was the case in Gibson v. Berryhill, 411 U.S.

564, 93 S.Ct. 1689 (1973). In the second place, the provision

for judicial review of any administrative decision under

Article 78 of the New York Civil Practice Law and Rules

would permit determination of this point. Plaintiff was

offered the right to proceed under Article 78 and did not

do so. A bargaining unit for the teachers filed a 78 pro-

ceeding, which was unsuccessful and which has not been

appealed. There is no indication in the record that the

deduction from plaintiff’s salary would have been made

prior to a determination in an Article 78 proceeding if he

had used that procedure.

Being supported by an affidavit, defendant’s motion

should be treated as one for summary judgment. F.R. Civ.

p. 12(b)(6). Since there are no material issues of disputed

fact, motion should be granted.

It is Orperep that defendant’s motion to dismiss the com-

plaint be granted and that the Clerk of the Court enter

judgment dismissing the complaint.

Oa

APPENDIX Il

UNITED STATES DISTRICT COURT

Eastern District or New York

ay.

Harvey S. Kornirt,

Plaintiff,

—against—

Boarp or Epvucation,

PLainview-O_Lp Betupace ScuHoou District,

Piainview, New York,

Defendant.

&

vy

No. 75 Civ. 518

May 11, 1976

Appearances :

Harvey S. Kornit

Plaintiff, pro se

JosepH W. CaMPANELLA, Esq.

Grecory J. Guercio, Esa.

Attorneys for Defendant

The Late Honoras_Le Orrin G. Jupp

District Judge

Jupp, J.:

MEMORANDUM AND ORDER

During the pendency of an appeal from this court’s order

dismissing the complaint, the plaintiff in this civil rights

action has moved to amend the complaint to add the names

of new parties defendant.

7a

Appendiz II

The motion was referred to one of the other judges of

this court, and returned to the file without being submitted

to this judge until plaintiff inquired about the matter

recently.

The moving papers set forth the claim of liability against

the new defendants in only genera! terms, and without in-

cluding a proposed amended complaint. The attorney for

the defendant Board of Education has opposed the motion.

Permitting an amendment at this stage, by adding addi-

tional parties, and waiting for them to be served and to file

an answer or make a motion, would further delay the case,

and does not appear to be essential to the determination

of the pending appeal.

It is OnpEReEp that the motion to amend the title be denied.

Sa

APPENDIX Ill

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

No. 519—September Term, 1975

(Argued June 18, 1976—Decided September 15, 1976)

Docket No. 75-7540

«

Harvey S. Kornirt,

Appellant,

Vv.

a

Boarp oF EpvucaTIon,

Piainvirw-O_p Betupace Scuoor District,

Piainview, New York,

Appellee.

Before:

MANSFIELD, OaKEs and GuRFEIN,

Circuit Judges

Appeal from judgment of the United States District

Court for the Eastern District of New York, Orrin G. Judd,

Judge, dismissing claim that local school board acted in

violation of due process by imposing penalties on striking

teachers without prior judicial review.

9a

Appendiaz III

Judgment vacated; cause remanded with instructions to

dismiss for lack of jurisdiction.

Harvey S. Kornit,

Appellant Pro Se

JosEPH CAMPANELLA,

Plainview, N.Y. for Appellee

Per Curiam:

Appellant, a teacher in the Plainview-Old Bethpage

School system, filed this suit in the United States District

Court for the Eastern District of New York to recover

$379.84 deducted from his wages for his participation in

an illegal strike against the schoc: system in September,

1972. This sum was deducted by the school board pursuant

to its authority to impose penalties against illegal strikers

under New York’s Taylor Law. N.Y. Civil Service Law

§§ 210(2)(d),(g) (McKinney 1973). Appellant contends

1 Strikes by public yees are expressly unlawful under N.Y.

Civil Service Law §210(1) (McKinney 1973). Illegal strikers

are subject to i including loss of tenure. Jd. §210(2)

f), as well as payroll deductions, Jd. § 201 (2)(g) (sic).

termination of an illegal strike is to be made in the first instance

by the local school board. Jd. §210(2)(d). After this deter-

mination, the affected teacher has 20 days to file a notice of

objections with the board. Jd. §210(2)(h). If the notice of

objections raises a material issue of fact, the board is to set the

matter for a hearing before a hearing officer empowered to

reverse the board’s findings. Jd. In the present case, appellant’s

— = objections — no oe y+ which Pa sla

that the employee did not vio the no-stri w)” Id.

Therefore, a hearing was not poe appellant.

10a

Appendiz III

that action of the school board violated due process because

its members, representing the fiscal interests of the local

government, were not impartial decision-makers. See, e.g.

Ward v. Village of Monroeville, 409 U.S. 57 (1972) ; Tumey

v. Ohio, 273 U.S. 510, 523 (1927). Appellant also argues

that the summary deduction of the penalty from his wages

constituted a garnishment which he claims cannot be consti-

tutionally imposed without a plenary court proceeding. See

e.g. Sniadach v. Family Fimance Corp., 395 U.S. 337 (1969).

The suit against the Plainview-Old Bethpage Board of

Education is brought under the Civil Rights Act, 42 U.S.C.

§ 1983, with jurisdiction, alleged under 28 U.S.C. § 1343(3).

The district court, the late Orrin G. Judd, Judge, granted

appellee’s motion to dismiss the complaint, ruling against

appellant on both his substantive claims. Since we find that

the district court was without jurisdiction of the subject

matter in this case, we vacate the judgment below and

remand with instructions to dismiss therefore.

The first requisite for federal subject matter jurisdiction

under 28 U.S.C. § 1343(3) and its substantive counterpart,

42 U.S.C. § 1983, is that the entity accused of depriving

plaintiff of his civil rights be a “person”. While the defini-

tion of this term has caused substantial controversy since

its limitations in Monroe v. Pape, 365 U.S. 167 (1961), this

court has recently and explicitly decided that a board of

education is not a “person” for purposes of § 1983. Monell

v. Department of Social Services, 532 F.2d 259, 263-64 (2d

Cir. 1976, petition for cert. filed, 45 U.S.L.W. 3005 (U.S.

July 2, 1976) (No. 75-1914). Under Monell, supra—whether

or not each of us agrees with the exposition of legislative

history by Mr. Justice Douglas for the Court in Monroe v.

lla

Appendia IV

Pape, supra, 365 U.S. at 187-92,’ on which the Monell panel

relied—this court has no subject matter jurisdiction to

award relief against the Plainview-Old Bethpage Board of

Education.°

Judgment vacated, with instructions to dismiss for lack

of subject matter jurisdiction.

2 See Brault v. Town of Milton, 525 F.2d 730, 744 n.6 (2d Cir.

1975) (dissenting opinion).

®’ As a pro se pleading the complaint is to be read liberally.

Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). We would

find subject matter jurisdiction under another statute, therefore,

if a factual predicate for such action could be gleaned from the

record. See Lewis v. D.C. Dep’t of Corrections, 5333 F.2d 710,

711 (D.C. Cir. 1976) (per curiam): Williams v. Vincent, 508

F.2d 541, 543 (2d Cir. 1974). No alternate jurisdictional basis,

however, appear to exist in this case.

l2a

APPENDIX IV

UNITED STATES COURT OF APPEALS

For Tue Seconp Circuit

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the nineteenth

day of July, one thousand nine hundred and seventy-seven.

+

Harvey S. Kornirt,

Appellant,

v.

Boarp or EpucaTion oF PLAINviEW-OLD BETHPAGE

Scnuoo. District,

Appellee.

aby.

.

75-7540

A motion having been made herein by Appellant pro se

for rehearing

Upon consideration thereof, it is

Ordered that said motion be and it hereby is Deniep.

Signature

Walter R. Mansfield, U.S.C.J.

Signature

James L. Oakes, U.S.C.J.

Signature

Murray I. Gurfein, Circuit Judges

13a

APPENDIX V

UNITED STATES DISTRICT COURT

Eastern District or New York

a.

a

Harvey 8S. Kornit,

Plaintiff,

v.

Boarp or Epucation PLainvigew-O_tp BretHpaGcEe

Scuoo. District New York,

Defendant.

» =

_

No. 75-C-518

Order

Sept. 15, 1977

Costantino, D.J.

Pursuant to the Court of Appeals decision in this case,

the action is hereby dismissed for lack of subject matter

jurisdiction. So ordered. ,

Signature

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