# Petition — Kornit v. Board of Education

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 438 U.S. 902

## Text

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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---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2660%3A1. Public record. Not legal advice.