Petition — Farrell v. Carey

eee

ra Supreme Court, 5 ea

anna een EET

DEC 15 1978

IN THE

caeemeanal

Supreme Court of the Withee

OCTOBER TERM, 1978 *

No. 78-965

JAMES A. FARRELL AND LouIS T. DILORENZO,

Petitioners,

¥.

HuGH CAREY, as Governor of the State of New York,

ERNEST L. BOYER, as Chancellor of the State University

of New York, and ALBERT W. BROWN, as President of

the State University College at Brockport,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW YORK COURT OF APPEALS

MATTHEW W. FINKIN

School of Law

Southern Methodist University

Dallas, Texas 75275

(214) 692-2583

Counsel for Petitioners

WILSON - EPES PRINTING CoO., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

of sliceniogdnnasingevamien 1

en i AENEAN EEE MC SCN Eo 2

ER Ee Se ee Oi ak trata 2

Constitutional Provision Involved _..........-2...-2.---eeeeeeeeeee-ee 2

I cnseimnedandaciimmpniapnmnintiilagens 2

PR Ta te ET aE 2

B. The Crucial Role of the Antinore Doctrine

Reasons for Granting the Writ ........000002202 eee

1. These cases present significant constitutional

issues not previously passed upon by this

gt ih en rs cB eae RE DUPE ROR ED 7

2. The Antinore doctrine is inconsistent with de-

cisions of this Court concerning the relation-

ship of majority rule to constitutional rights... 9

3. The Antinore doctrine is inconsistent with de-

cisions of this Court governing the waiver of

due process in other civil settings. 000000000000... 12

4. The Antinore doctrine engenders an intolerable

conflict between the state and federal courts in

New York concerning the construction of the

Fourteenth Amendment. .....022. 000000020. 14

I ihe as tissdi pie estiiaminaeteon esha nascacentasmmnpainnaigeien 16

Il

TABLE OF AUTHORITIES

Cases:

Abood v. Detroit Board of Educ., 431 U.S. 209

1 SPREE RR BAP) a

Aetna Insurance Co. v. Kennedy, 301 U.S. 389

fg NRPS ant srt NACI ely Ger eee Mel aoe Ee te

Antinore v. State of New York, 371 N.Y.S.2d 213

(4th Dept. 1975), aff'd mem., 40 N.Y.2d 921,

389 N.Y.S.2d 576, 358 N.E.2d 368 (1976) .........

Bignall v. North Idaho College, 588 F.2d 243 (9th

er ee ge ke

Bishop v. Wood, 426 U.S. 341 (1976) ..............0....

Board of Regents v. Roth, 408 U.S. 564 (1972) ....

Brady Vv. Bocrd of Regents, 242 N.W.2d 616 (Neb.

RR ae eb EO ee TS

Brookhart v. Janis, 384 U.S. 1 (1966) ....................

ae Board of Educ., 427 F. Supp. 945 (D. Colo.

TET sachet sad btetliiat takecllbcsdeedsbletigatch-abeisabacececdiéccieneeias

Chung Vv. Park, 514 F.2d 392 (8d Cir.), cert. den.,

Re EN

City of Madison v. Wisconsin Employment Rela-

tions Commission, 427 U.S. 167 (1976) ..............

Connecticut State Federation of Teachers v. Board

of Educ. Members, 588 F.2d 471 (2d Cir. 1976) ..

Fuentes v. Shevin, 407 U.S. 67 (1972) ........000......

Johnson Vv. Board of Regents, 377 F. Supp. 217

(W.D. Wis. 1974), aff'd mem., 510 F.2d 975

Ras ee OCT Se

Johnson Vv. Zerbst, 304 U.S. 458 (1988) 0...

Kewin v. Board of Educ., 65 Mich. App. 472, 237

Sry a he

Klein v. Board of Higher Educ., 434 F. Supp.

en Nc

Levitt v. Board of Trustees, 376 F. Supp. 945 (D.

es NS er a a de ee

Lucas Vv. Colorado General Assembly, 377 U.S. 713

C5 BRM A trae RR ae one

Mills v. Long Island Rail Road Co., 515 F.2d 181

(2d Cir. 1975)

Ae eee een nnn ween

itt h ht tt ttt ttt tee

Page

10

11

Ill

TABLE OF AUTHORITIES—Continued

Page

Ohio Bell Tel. Co. v. Public Utilities Commission,

es I IES cited ecteintbinncwbseneisaaeetandemtncsons 13

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959)... 6

D. H. Overmeyer Co. v. Frick Co., 405 U.S. 174

o: : | eR ee Se ee a Aanansekens 12,13

Perry v. Sindermann, 408 U.S. 593 (1972) ............ 8

Schneckcloth v. Bustamonte, 412 U.S. 218 (1973).. 12

West Virginia Board of Educ. v. Barnette, 319

co acenesaneibhaomniaeetoniion 10

Constitution of the United States:

pee OS RSE Sen ere re ere 9, 10, 14, 15

NOI SIRI ngciscienchetncincatssnresengs 2, 3, 6, 7, 8, 10, 12, 15

Federal Statutes:

Fe 0 ED. ceberccsresensseseciennenenemnanconpecintstnnnassine 2

State Statutes and Regulations:

Alaska Stat. §§ 23.40.070—23.40.260 (1972) ........ 7

Conn. P.A. 566, L. 1975, §§ 1—11 .......................000+- 7

Del. Code tit. 19. §§ 1801—1312 (1974) .................. 7

Fla. Stat. §§ 447.201—447.607 (1976 Supp.) ....... 7-8

Hawaii Rev. Stat. §§ 89.1—89.20 (1975 Supp.) ...... 8

Iowa Code §§ 20.1—20.27 (1976 Supp.) ................-- 8

Kansas Stat. §§ 75-4321—75-4337 (1976 Supp.).... 8

Me. Rev. Stat. tit. 26, §$§ 1021—1034 (1975-76

UII) oaciccnceceriserncntisrnenticteotanincestnbammatersaripnaneesvonecnccecs 8

Mass. Gen. Laws ch. 150E, §§ 1—15 (1976) .......... 8

Mich. Comp. Laws §§ 423.201—423.216 (1967)...... 8

Minn. Stat. §§ 179.61—179.76 (1976 Supp.) .......... 8

Mont. Rev. Codes §§ 59-1601—59-1617 (1975 Cum.

ID ivcccvcncicccrvcocvecensessntbnaiounshincononennectebetneenseaens 8

Neb. Rev. Stat. §§ 48-401—48-838 (1974) .............. 8

N.H. Rev. Stat. Ann. §8§ 273-A:1—273-A:16

DRIED codecs bans carerssissetstdsabnnpiaioncesnacnteincmegnicnneccsecs 8

N.J. Stat. §§ 34:13A-1—34:13A-11 (1976 Supp.).. 8

IV

TABLE OF AUTHORITIES—Continued

S ETC OP SOE, SU asic

N.Y. Civil Service Law § 63 (McKinney 1973)......

N.Y. Civil Service Law §§ 200—214 (McKinney

DGD Acciccnitentesiiitndinsntrisanlaieianiepuniaeahiemanecm: Cetra

New York CPLR § 5601(b) (1) .......

Rules and Regulations of the New York State

Civil Service Commission, Rule 4.5 (1972) .......

Ore. Rev. Stat. §$§ 243.650—243.782 (1975) ..........

Pa. Stat. tit. 43, §§ 1101-101—1101.2301 (1976

URI) <cincssicnisnnissitinnccctmnapalldhsamiiadanes eee ae

R.I. Gen. Laws §$§ 36-11-1—36-11-6 (1974) 00000.

S.D. Comp. Laws § 3-18-1—3-18-17 (1974) 000000.

Vt. Stat. tit. 3, §§ 901-1007 (1975) ............0000....

Books and Monographs:

Carnegie Council on Policy Studies in Higher Ed-

ucation, FACULTY BARGAINING IN PUBLIC HIGHER

EDUCATION, Table 1, Appendix B (1977) ..........

Cohen & Karger, POWERS OF THE NEW YORK COURT

OF APPEALS, § 55 at 253 (1952) 2002.0.

E. Duryea & R. Fisk, COLLECTIVE BARGAINING, THE

STATE UNIVERSITY AND THE STATE GOVERNMENT

we FEW TUE GROG ccsiscccneenaeee

HANDBOOK OF LABOR STATISTICS 1977, U.S. DEPT.

OF LABOR BULL. 1966, Table 134 at 291 (1977)..

Higher Education Committee, State Assembly of

New York, REPORT ON RETRENCHMENTS IN

Hipasmmms HEpUCATIOR 2GTT nn ccceceiceccesereecees

New York State Dept. of Civil Service, March 31,

1976 Distribution of N.Y. State Positions by

County and Agency (Aug. 1976) 00000.

New York State Civil Service Commission, 1977

Municipal Civil Service in New York State—

Summary of Annual Reports

ee eee)

ow oo

Vv

TABLE OF AUTHORITIES—Continued

Articles:

Aaron, Procedural Due Process and the Duty of

Fair Representation in Public Sector Grievance

Disputes, LABOR RELATIONS LAW IN THE PUBLIC

Baomen (A. Reape 06. 1977) _........-....<..000c00--2.--

Koretz & Rabin, 1975 Survey of New York Law,

ee i a OOD se ceteccnicsccencnccenesscncee

Summers, Public Sector Bargaining: Problems of

Governmental Decisionmaking, 44 Cin. L. Rev.

Nee cuanasneaiinanvensiininne

Wollett, State Government—Strategies for Nego-

tiations in an Austere Environment: A Man-

agement Perspective, 27 Lab. L. J. 504 (1976)..

Page

10

10

15

14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No.

JAMES A. FARRELL AND LOUIS T. DILORENZO,

Petitioners,

v.

HUGH CAREY, as Governor of the State of New York,

ERNEST L. BOYER, as Chancellor of the State University

of New York, and ALBERT W. BROWN, as President of

the State University College at Brockport,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW YORK COURT OF APPEALS

Louis T. DiLorenzo and James A. Farrell pray that a

writ of certiorari issue to review the final judgment and

decree of the New York Court of Appeals entered in their

cases on September 21, 1978.

OPINIONS BELOW

The order of the New York Court of Appeals, dis-

missing the appeals in these cases, entered on September

21, 1978, is unreported and is reproduced in Appendix

A, infra, p. la. The judgment of the Appellate Division,

2

Fourth Department, is reported at 405 N.Y.S.2d 356

(App. Div. 1978), and is reproduced in Appendix B,

infra, pp. 3a-18a. The decisions of the Supreme Court,

Monroe County, entered in these cases on May 24, 1976

are unreported and are reproduced in Appendix C, infra,

pp. 19a-26a.

JURISDICTION

The final judgment and decree of the New York Court

of Appeals was entered on September 21, 1978; this

Petition was filed within 90 days of that final order. The

jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257(3).

QUESTIONS PRESENTED

I. Does the Fourteenth Amendment Permit a State

University Professor’s Right to Due Process in the

Termination of a Tenured Appointment to be Waived

by a Collective Bargaining Agreement?

II. Is the Effectiveness of a Waiver of Due Process by

Collective Agreement to be Measured by the Stand-

ards Established by this Court for the Waiver of

Due Process in Other Civil Settings?

CONSTITUTIONAL PROVISION INVOLVED

Amendment XIV, Section 1, cl. 3

[NJor shall any State deprive any person of life,

liberty, or property, without due process of law... .

STATEMENT OF THE CASE

A. Procedural History

James A. Farrell and Louis T. DiLorenzo held tenured

professorships in the State University College at Brock-

port of the State University of New York. Tenure, or

3

“continuing appointment,” as it is defined by the Uni-

versity’s regulations, is a right to continue in one’s aca-

demic appointment until retirement, subject to termina-

tion upon certain express conditions, including inter alia

“financial retrenchment.” 8 NYCRR §§ 335.5, 338.14

(1974). By letter of January 26, 1976, from the Presi-

dent of the State College at Brockport, Professors Far-

rell and DiLorenzo were given a month’s notice that their

appointments would be terminated; the letter explained

that these terminations constituted “retrenchment” neces-

sitated by an asserted reduction in the College’s operat-

ing budget.

At the time of these terminations, a collective bargain-

ing agreement was in effect between the State and the

United University Professions, Inc. (“UUP”’), the collec-

tive bargaining agent for the professional staff of the

SUNY system under New York’s public employment col-

lective bargaining law. N.Y. Civil Service Law §§ 200-

214 (McKinney 1973). The agreement dealt with re-

trenchment of employees; its provisions were fully set

out in the Appellate Division’s opinion, appended here as

Appendix B, infra. In essence, the State and the UUP

agreed that the sole and exclusive means of reviewing

retrenchment decisions was through the arbitration pro-

vision of the collective agreement. However, under the

agreement, a terminated tenured professor could not con-

test the existence of the financial condition that was

asserted to justify the termination, nor could he contest

the reasonableness of the standards and procedures

adopted by the University’s administration to single out

his appointment for termination.

Accordingly, Professors Farrell and DiLorenzo sought

relief in state court. They asserted inter alia that the

Fourteenth Amendment required that they be given an

opportunity to contest whether or not a financial condi-

tion existed that truly justified the termination of their

4

appointments, and whether reasonable standards were

adopted and fairly applied in singling their appointments

out for termination. Complaint of Louis T. DiLorenzo,

1 17, 18, 21, 31; Petition of James A. Farrell, {| 12, 13,

17, 20, 21. They further asserted that no relief was

available under the collective agreement to vindicate

these constitutional rights. DiLorenzo Complaint at { 19,

Farrell Petition at { 23.

The State moved to dismiss for failure to state a cause

of action. The motion did not dispute that the agree-

ment foreclosed review in the manner plaintiffs asserted.

Rather, the State asserted that the collective agreement

acted as a “waiver” of plaintiffs’ constitutional rights.

The trial court agreed, and granted the State’s motion

to dismiss, relying exclusively upon the theory of

“waiver” adopted in the decision of the Appellate Di-

vision, Fourth Department, in Antinore v. State of New

York, 871 N.Y.S.2d 213 (4th Dept. 1975). (The trial

court’s decisions are reproduced as Appendix C, infra.).

Subsequent to the trial court’s decision, the New York

Court of Appeals affirmed Antinore by memorandum, 40

N.Y.2d 921, 389 N.Y.S.2d 576, 358 N.E.2d 368 (1976).

A Writ of Certiorari was not sought in Antinore itself.

Professors Farrell and DiLorenzo appealed to the Ap-

pellate Division, Fourth Department; their appeals were

consolidated by the Appellate Division. They pointed out

that the constitutional test for “waiver” of due process in

civil matters, adopted by this Court, had not been applied

—or even considered. More important, Professors Far-

rell and DiLorenzo argued that the “waiver” theory

adopted in Antinore was constitutionally infirm. The

Appellate Division nevertheless affirmed, relying entirely

on Antinore. That opinion is set out as Appendix B

infra.

’

Appeal to the New York Court of Appeals was sought un-

der New York CPLR § 5601(b) (1) as of right; given the

5

disposition by the Appellate Division, the sole questions

presented concerned the constitutionality of the Antinore

doctrine.! However, the State moved to dismiss the appeal

for want of substantiality in the federal constitutional

question presented, on the ground that the issues were

fully disposed of by the Court of Appeals’ affirmance in

Antinore. Notice and Motion to Dismiss Appeals, July

12, 1978. The Court of Appeals granted the State’s

motion to dismiss the appeals on September 21, 1978.

Appendix A, infra.

B. The Crucial Role of the Antinore Doctrine

Customarily, a petition for a writ of certiorari to a

state’s highest court would be accompanied by that court’s

opinion concerning the federal constitutional questions

presented. In. dismissing these appeals, brought as of

right, the New York Court of Appeals declined to supply

any more detailed expression of opinion. However, the

questions presented to the New York Court of Appeals

solely concerned the constitutional validity of New York’s

Antinore doctrine. Thus, the refusal of the New York

Court of Appeals to entertain these appeals, upon the

strength of the Antinore doctrine, speaks as eloquently

as any more refined opinion could as to how that court

views the constitutional vitality of the theory it embraced

in Antinore.’

1The questions presented were stated in the Brief of Appel-

lants in Support of Jurisdiction at 11:

fAlre an individual’s constitutional rights subject to waiver

by a majority organization and, if they are, is the effectiveness

of the waiver of Constitutional rights to be measured by stand-

ards independently commanded by the Constitution?

2 An appeal brought as of right under CPLR 5601(b)(1) may

be dismissed by the New York Court of Appeals for want of

substantiality in the constitutional question presented. The test

adopted by that court is identical with the test adopted by this

Court for the dismissal of an appeal for want of a substantial

federal question. See Cohen & Karger, POWERS OF THE NEW

6

The result in these cases provides a striking illustra-

tion of the operation of the Antinore doctrine. Two ten-

ured professcrs have been summarily terminated by the

State and denied any opportunity to contest the very

existence of the ground asserted as justifying their

terminations,“ and any opportunity to contest whether

reasonable standards were adopted and fairly applied in

singling them out for termination. They may not be so

heard because, under the Antinore doctrine, these con-

stitutional rights have been waived by a collective agree-

ment. That the agreement had that purport is not in dis-

pute; in fact, that is precisely what Petitioners alleged

in their pleadings, which the State’s motion to dismiss

accepted as accurate for the purposes of the motion.

Thus, the sole question presented by this Petition is the

constitutional validity of the Antinore doctrine applied,

at the threshold, to defeat state judicial determination

of Petitioners’ constitutional claims.‘

YORK COURT OF APPEALS, § 55 at 258 (1952) (and the cases

cited therein). It is because a dismissal of an appeal upon such a

ground is a disposition “on the merits of the case,” Ohio ex rel.

Eaton v. Price, 360 U.S. 246, 247 (1959) (memorandum of Bren-

nan, J.), that the Writ of Certiorari in these cases is properly

directed to the New York Court of Appeals rather than to the

Appellate Division.

*In January, 1978, the Higher Education Committee of the State

Assembly in New York issued a REPORT ON RETRENCHMENTS

IN HIGHER EDUCATION 1977. After review of the actual budg-

etary situation, the report concluded that, unlike the City University

of New York, the State University “wes not under budgetary man-

date or constraint to terminate” tenured faculty. Jd. at 8.

‘ Several federal and state courts have considered the subsidiary

question of the rights the Fourteenth Amendment does afford ten-

ured professors terminated due to financial exigency. Johnson Vv.

Board of Regents, 377 F. Supp. 217 (W.D. Wis. 1974), aff'd mem.,

510 F.2d 975 (7th Cir. 1975); Levitt v. Board of Trustees, 376 F.

Supp. 945 (D. Neb. 1974) ; Bignall v. North Idaho College, 588 F.2d

243 (9th Cir. 1976) ; Klein v. Board of Higher Educ., 434 F. Supp.

1113 (S.D.N.Y. 1977); Brady v. Board of Regents, 242 N.W.2d

7

REASONS FOR GRANTING THE WRIT

1. These cases present significant constitutional issues

not previously passed upon by this Court.

The instant cases were disposed of by the trial court

and affirmed by the appellate courts on the basis of New

York’s Antinore doctrine; thus, these cases place in issue

the constitutionality of that doctrine: does the Four-

teenth Amendment permit a collective bargaining agent

in the public sector to waive rights guaranteed by the

Fourteenth Amendment and, even if such a waiver is

permissible, does the Fourteenth Amendment subject a

waiver by collective agreement to the same standards

the Court has established for the waiver of due process

in other civil settings? These issues have not previously

been directly passed upon by this Court; their significance

cannot be minimized.

Even viewed narrowly as concerning the abrogation of

due process for tenured professors, the significance of

the issues transcends the 6,600 tenured faculty of the

SUNY system. Twenty states, in addition to New York,

have adopted laws allowing collective bargaining for col-

lege and university faculty either specially or, more com-

monly, as in New York, as part of a comprehensive

public bargaining law." Tens of thousands of faculty

616 (Neb. 1976). The courts below failed to reach that question

because the Antinore doctrine rendered it moot.

Inasmuch as the only questions presented by this Petition concern

the constitutionality of the Antinore doctrine, this Petition does

not call upon this Court to define what the Fourteenth Amendment

would have required in the absence of the “waiver.” The effect of

an invalidation of Antinore upon constitutional grounds would

merely return the instant cases to state court for a judicial deter-

mination, in light of the above cases, of what the due process clause

requires.

° Alaska Stat. §§ 23.40.070-23.40.260 (1972); Conn. P.A. 566, L.

1975, $$ 1-11; Del. Code tit. 19. §§ 1301-1312 (1974); Fla. Stat.

8

at more than 150 public four-year institutions through-

out the United States are currently represented by col-

lective bargaining agents. Carnegie Council on Policy

Studies in Higher Education, FACULTY BARGAINING

IN PUBLIC HIGHER EDUCATION, Table 1, Appendix

B (1977). Thus, the ability of the state, by collective

agreement, to deprive tenured professors of rights guar-

anteed by the Fourteenth Amendment is of considerable

national significance.

But more important, although this Court’s decisions in

Board of Regents v. Roth, 408 U.S. 564 (1972), and

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

concerned professorial tenure in higher education, they

clearly establish that any public employee with a similar

state-granted entitlement to his job, such as a tenured

schoolteacher or a permanent civil servant, has a right

to due process under the Fourteenth Amendment in the

termination of his employment. Cf. Bishop v. Wood, 426

U.S. 341 (1976) (policeman held to have no such property

interest as to engender a requirement of constitutional

due process). In fact, the Antinore doctrine was adopted

by the New York Court of Appeals in a case arising

out of the termination of a permanent civil servant.

Thus, the Antinore doctrine has a direct and immediate

impact upon the constitutional rights of perhaps two

hundred thousand to three hundred thousand tenured

§§ 447.201-447.607 (1976 Supp.); Hawaii Rev. Stat. §§ 89.1-89.20

(1975 Supp.) ; Iowa Code §§ 20.1-30.27 (1976 Supp.); Kans. Stat.

§§ 75-4321-75-4337 (1975 Supp.); Me. Rev. Stat. tit. 26, $$ 1021-

1034 (1975-76 Supp.) ; Mass. Gen. Laws ch. 150E, §§ 1-15 (1976);

Mich. Comp. Laws §§ 423.201-423.216 (1967) ; Minn. Stat. §§ 179.61-

179.76 (1976 Supp.); Mont. Rev. Codes §§ 59-1601-59-1617 (1975

Cum. Supp.) ; Neb. Rev. Stat. $§ 48-401-48-838 (1974): N.H. Rev.

Stat. Ann. §§ 273-A:1-273-A:16 (1975); N.J. Stat. §§ 34:13A-1-

34:13A-11 (1976 Supp.) ; Ore. Rev. Stat. $§ 243.650-243.782 (1975) :

Pa. Stat. tit. 43, §§ 1101-101-1101.2301 (1976 Supp.); R. I. Gen.

Laws §§ 36-11-1-36-11-6 (1974); S.D. Comp. Laws § 3-18-1-3-18-17

(1974); Vt. Stat. tit. 3, §$§ 901-1007 (1975).

9

public employees in New York State.* It further follows

that the validity of the theory of waiver of constitutional

rights by collective agreement is of intense concern to an

even larger number of public employees elsewhere who

are engaged in collective bargaining in the public sector.’

2. The Antinore doctrine is inconsistent with decisions

of this Court concerning the relationship of majority

rule to constitutional rights.

In City of Madison v. Wisconsin Employment Rela-

tions Commission, 427 U.S. 167 (1976), this Court held

that a public employee’s First Amendment right of access

to speak in a public forum could not be limited, even

when the subject of his speech concerned an item then

under negotiation by the public employer with the union

that represented him, and the justification asserted for

the limitation was the need to protect the system of ex-

clusive representation by the majority organization. The

* The probationary period for state employees is quite brief, Rules

and Regulations of the New York Civil Service Commission, Rule

4.5 (1972). As of March 31, 1976 there were 154,704, primarily

regular full-time state employees in New York, exclusive of the

State University. New York State Dept. of Civil Service, March 31,

1976 Distribution of N.Y. State Positions by County and Agency

(Aug. 1976). The probationary period for state and municipal civil

servants in the competitive class is fixed by rule. N.Y. Civil Service

Law, § 63 (McKinney 1973). In 1977, there were 120,224 municipal

and county employees classified in the “permanent competitive

class’ exclusive, however, of New York City. New York State

Civil Service Commission, 1977 Municipal Civil Service in New

York State—Summary of Annual Reports. In 1977-1978 there were

144,826 tenured schoolteachers in New York’s public schools. Letter

of November 6, 1978 from Vito W. Longo, New York State Educa-

tion Department (Appendix D). Thus, the estimate of up to three

hundred thousand public employees directly affected by the Antinore

doctrine is conservative.

7 As of 1974 there were almost 1.5 million union members in state

and local government. HANDBOOK OF LABOR STATISTICS

1977, U.S. DEPT OF LABOR BULL. 1966, Table 134 at 291

(1977).

10

reason is simply that the First Amendment limits the

power of the political majority; thus, it would not have

made a difference, for constitutional purposes, had the

prohibition in City of Madison been contained in a col-

lective agreement rather than in an order of the Wis-

consin Employment Relations Commission.

This Court has taken a similar view of the Fourteenth

Amendment. “One’s right to life, liberty, and property

. .. and other fundamental rights may not be submitted

to a vote, they depend on the outcome of no elections.”

West Virginia Board of Educ. v. Barnette, 319 U.S. 624,

637 (1943). “A citizen’s constitutional rights can hardly

be infringed simply because a majority of the people

choose that it be.” Lucas v. Colorado General Assembly,

377 U.S. 718, 736-87 (1964). It would be patently in-

consistent with these decisions, and constitutionally

anomalous, if an individual’s Fourteenth Amendment

rights could be submitted to a vote of his fellow em-

ployees, or disposed of merely by agreement between the

State and a union’s leadership. Yet that is precisely

what the Antinore doctrine accomplishes."

The better view, more in keeping with City of Madison

and the decisions noted above, is that the Constitution is

a limit upon the government; it should make no difference

whether government acts by issuing a rule unilaterally

or issues the rule after meeting and conferring with a

union—it remains a government rule and so must with-

stand constitutional scrutiny. As Mr. Justice Powell re-

cently put it in an analogous situation,

The collective-bargaining agreement to which a pub-

lie agency is a party is not merely analogous to

‘It is for this reason that initial scholarly reaction to the

Antinore doctrine has been strongly negative. Aaron, Procedural

Due Process and the Duty of Fair Representation in Public Sector

Grievance Disputes. LABOR RELATIONS LAW IN THE PUB-

LIC SECTOR (A. Knapp ed. 1977) 179, 184. Koretz & Rabin,

1975 Survey of New York Law, 27 Syr. L. Rev. 139, 159 (1976).

11

legislation; it has all the attributes of legislation for

the subjects with which it deals. Where a teachers’

union, for example, acting pursuant to a State stat-

ute authorizing collective bargaining in the public

sector, obtains the agreement of the school board

that teachers residing outside the school district will

not be hired, the provision in the bargaining agree-

ment to that effect has the same force as if the

school board had adopted it by promulgating a regu-

lation. « 6.

|A]ecordingly, the Board’s collective bargaining

agreement, like any other enactment of state law,

is fully subject to the constraints that the Constitu-

tion imposes on coercive governmental regulation.

Abood vy. Detroit Board of Educ., 481 U.S. 209, 253

(1977) (Powell, J. concurring).

By this analysis, the authentic issue in Antinore itself

was not whether a collective agreement operated to

“waive” a tenured civil servant’s constitutional right to

due process, but whether arbitration of his dismissal

satisfied the minimum requirements of the due process

clause. See Mills v. Long Island Rail Road Co., 515 F.2d

181 (2nd Cir. 1975) (holding that arbitration can

satisfy the due process clause), and Chung v. Park, 514

F.2d 892 (8d Cir.), cert. den., 423 U.S. 948 (1975)

(sustaining the use of arbitration for the dismissal of

a tenured professor against a due process challenge).

To be sure, the practical demands of the system of

collective bargaining may play a role in determining the

question of constitutionality of a particular rule embodied

in a public employment collective agreement. For ex-

ample, in Abood v. Detroit Board of Educ., supra, the

Court observed that the “same important government in-

terests .. . [recognized in support of agency fees in the

private sector] support the impingement upon associa-

tional freedom created by the agency shop” in the public

sector. Jd. at 225. But under the Antinore doctrine,

12

the public employee cannot be heard to complain that

even after appropriate consideration of the needs of

the system of collective bargaining, the agreement acts

nevertheless as an impermissible infringement of his

Fourteenth Amendment rights, because his constitutional

rights are deemed “waived”.

The instant cases strikingly illustrate how the waiver

theory forecloses constitutional scrutiny. These sum-

marily terminated tenured professors could not contest,

upon constitutional grounds, decisions “reserved by the

collective agreement exclusively to the State” ( Appendix

B infra at 15a) because their constitutional right so to

contest was held to have been “waived” by that very

reservation.

3. The Antinore doctrine is inconsistent with decisions

of this Court governing the waiver of due process in

other civil settings.

The theory of “waiver” of constitutional rights by col-

lective agreement is plainly inconsistent with this Court’s

construction of the Constitution. Point 2 supra. But even

if “waiver” is a constitutionally appropriate analysis, the

Antinore doctrine falls afoul of the standards estab-

lished by this Court for the determination of an effective

waiver of due process in the civil setting.

The standards established by this Court governing the

effectiveness of a waiver of due process in civil cases has

borrowed from the standards established in criminal cases.

Johnson v. Zerbst, 304 U.S. 458 (1938) followed in D. H.

Overmeyer Co. v. Frick Co., 405 U.S. 174 (1972), and

Fuentes Vv. Shevin, 407 U.S. 67 (1972). Inasmuch as

the right to due process is a personal right, to be con-

stitutionally effective the waiver must be made by the

individual. Schneckcloth v. Bustamonte, 412 U.S. 218

246 (1973). (“(I}t is inconceivable that the Constitu-

tion could countenance the waiver of a defendant's right

13

to counsel by a third party... .”) Cf. Brookhart v.

Janis, 384 U.S. 1 (1966) (no waiver of client’s con-

stitutional rights by attorney over the objection of the

client). However, under the Antinore doctrine, the re-

quirement that the individual actually agree to the re-

linquishment of his constitutional rights is jettisoned.

The Appellate Division put it succinctly: these faculty

members are bound by the waiver by virtue of “their

membership in the bargaining unit, irrespective of

whether they personally supported the contract when

approved.” The result cannot be reconciled with the stand-

ards this Court has established governing the waiver of

individual constitutional rights.

Moreover, this Court has long held that the loss of

fundamental rights, as a matter of Constitutional law,

should not be presumed or lightly implied. Ohio Bell

Tel. Co. Vv. Public Utilities Commission, 301 U.S. 292,

307 (1937), Aetna Insurance Co. v. Kennedy, 301 US.

389, 393 (1937). Accordingly, this Court has required

that a waiver of due process in the civil setting be not

only intentional, but “voluntary,” that is, made between

parties of equal bargaining power. D. H. Overmeyer Co.

v. Frick Co., supra; Fuentes v. Shevin, supra. Assuming

arguendo that “waiver” is the constitutionally appropriate

analysis at all, Point 2, supra, and assuming further

that a majority organization may waive an individual’s

constitutional rights, these decisions require a finding that

the constitutional standards for determining the effec-

tiveness of a waiver have been met. Thus, in the instant

case, there would have had to have been a finding that

the union enjoyed at least a rough equality of bargaining

power with the State. The trial court made no such

finding, and the appellate courts refused to consider the

standards set down by this Court as relevant to the de-

termination of the constitutional effectiveness of a waiver

of due process by collective agreement.

14

Surely, there are weak unions in the public sector as

well as strong ones.° By obviating any factual inquiry

into the relative bargaining power of the State and the

union otherwise commanded by this Court’s decisions,

the Antinore doctrine frees the State, in effect, to com-

mand a loss of individual constitutional rights in re-

turn for the most limited concessions to which a hard-

pressed union would have no practical alternative but to

accede. Such a result is even more likely where, as in

the instant case, those adversely affected by the waiver—

the tenured faculty—constitute a minority of the overall

bargaining unit.

4. The Antinore doctrine engenders an intolerable con-

flict between the state and federal courts in New York

concerning the construction of the Fourteenth Amend-

ment.

In Connecticut State Federation of Teachers v. Board

of Educ. Members, 5388 F.2d 471 (2nd Cir. 1976), the

Second Circuit was confronted with a challenge, on First

Amendment grounds, to provisions of a collective agree-

ment made with a majority organization. That court’s

analysis of the issue is identical with the decisions of

this Court, adverted to by Petitioners in Point 2, supra:

[A] dispute, commonplace in the private sector, be-

comes constitutional litigation by virtue of the fact

that public employers (the school boards) are in-

volved, rather than private entities. .. . Mindful of

*The Director of New York’s Office of Employee Relations, the

state’s chief negotiator, has adverted to the lack of bargaining

power of faculty unions in higher education. Wollett, State Gov-

ernment—Strategies for Negotiations in un Austere Environment:

A Management Perspective, 27 Lab. L.J. 504, 509 (1976). A study

of collective bargaining in the State University of New York ex-

pressly adverted to the “weakness” of the SUNY union. E. Duryea

& R. Fisk, COLLECTIVE BARGAINING, THE STATE UNI-

VERSITY AND THE STATE GOVERNMENT IN NEW YORK

31 (1975).

15

the undesirability of becoming entangled in the

operation of local school systems, we nevertheless

must address this case in a constitutional, rather

than a private law, framework. Jd. at 478.

To similar effect see Summers, Public Sector Bargaining:

Problems of Governmental Decisionmaking, 44 Cin. L.

Rev. 669, 670-71 (1975).

How radically this constitutional analysis differs from

the Antinore doctrine is illustrated by a federal decision

in New York that vindicates precisely the same constitu-

tional rights that Petitioners sought to vindicate in state

court, despite a collective agreement indistinguishable

from that involved in the instant cases. Klein v. Board

of Education, 434 F. Supp. 11138 (S.D.N.Y. 1977) (hold-

ing, despite unreviewability under the collective agree-

ment, that the Fourteenth Amendment required that

tenured faculty be permitted to contest whether a bona

fide financial exigency existed and whether the institu-

tion adopted and applied a uniform set of procedures for

meeting that emergency). These federal decisions can-

not be reconciled with Antinore; in effect, the Fourteenth

Amendment means one thing in the federal courts in

New York and another in the state courts.”

10 uch as the Supreme Court of Nebraska had rejected the

‘sat Ge in a case strikingly similar to the instant cases,

Brady V. Board of Regents, 242 N.W.2d 616 (Neb. 1976), it rig

as well that the Fourteenth Amendment means one thing = ew

York’s highest court and another in Nebraska's. There is ana —

judicial confusion upon the vitality of the waiver theory =

where. COMPARE Kewin v. Board of Educ., 65 Mich. a. 2.

237 N.W.2d 514 (1972) (collective agreement cannot waive teac oi $

constitutional right to individualized maternity leave robagges

WITH Cary v. Board of Educ., 427 F. Supp. 945 (D. Colo. = ;

(collective agreement waived teachers’ First Amendment rig Gy)

academic freedom).

16

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this Petition for a Writ of Certiorari be granted.

Respectfully submitted,

MATTHEW W. FINKIN

School of Law

Southern Methodist University

Dallas, Texas 75275

(214) 692-2588

Counsel for Petitioners

Appendices

la

APPENDIX A

STATE OF NEW YORK

COURT OF APPEALS

At a session of the Court, held at Court of Appeals Hall

in the City of Albany on the Twenty-first day of

September A.D, 1978.

PRESENT, HON. CHARLES D. BREITEL,

Chief Judge, presiding

4 Mo. No. 787

Louis T, DILORENZO,

Appellant,

vs.

HuGH CAREY, as Governor &c., and ERNEST L, BOYER,

as Chancellor &c., &ano., &e.,

. Respondents.

JAMES A, FARRELL,

Appellant,

vs.

HuUGH CAREY, as Governor &c., and ERNEST L. BOYER,

as Chancellor &., &ano., &e.,

Respondents.

A motion having heretofore been made herein upon

the part of the respondents to dismiss the appeals taken

by the appellants in the above causes to this Court, papers

having been submitted thereon and due deliberation hav-

ing been thereupon had, it is

2a

ORDERED, that the said motion, insofar as it seeks

to dismiss the appeal in DiLorenzo v. Carey, be and the

same hereby is granted and the appeal dismissed, without

costs, upon the grounds that the modification at the Ap-

pellate Division is not substantial (CPLR 5601 [a] [iii] )

and no substantial constitutional question is directly in-

volved (CPLR 5601[b][1]); and it is

ORDERED, that the said motion, insofar as it seeks

to dismiss the appeal in Farrell v. Carey, be and the

same hereby is granted and the appeal dismissed, without

costs, upon the ground that no substantial constitutional

question is directly involved (CPLR 5601[b] [1]).

/s/ Joseph W. Bellacosa

JOSEPH W. BELLACOSA

Clerk of the Court

3a

APPENDIX B

301

SUPREME COURT OF THE

STATE OF NEW YORK

APPELLATE DIVISION

FOURTH JUDICIAL DEPARTMENT

PRESENT: Mars, P.J., DILLON, HANCOCK,

DENMAN, WITMER, JJ.

Appeal No. 1

Louis T. DILORENZO,

Appellant,

Ve

HUGH CAREY, as Governor of the State of New York,

ERNEST L. BOYER, as Chancellor of the State Univer-

sity of New York, and ALBERT W. BROWN, as Presi-

dent of the State University College at Brockport,

Respondents.

The above named Louis T. DiLorenzo, plaintiff in this

action, having appealed to this Court from a judgment

of the Supreme Court, entered in the Monroe County

Clerk’s office on June 4, 1976 and said appeal having

been argued by Matthew Finkin of counsel for appellant,

Paul Harrison of counsel for respondents, and submitted

by Matthew Finkin for the American Association of Uni-

versity Professors, Amicus Curiae and due deliberation

having been had thereon,

It is hereby ORDERED, That the judgment so ap-

pealed from be, and the same hereby is unanimously

4a

modified by deleting the provision declaring the rights

of the parties and by dismissing the complaint and as

modified the judgment is affirmed without costs.

Opinion by Marsh, P.J., which is hereby made a part

hereof.

Entered: May 26, 1978

Mary F. ZOLLER

Clerk

Supreme Court )

Appellate Division, )

Fourth Judicial Department, )

Clerk’s Office, Rochester, N. Y. )

I, MARY F. ZOLLER, Clerk of the Appellate Division

of the Supreme Court in the Fourth Judicial Department,

do hereby certify that this is a true copy of the original

order, now on file in this office.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed the seal of said Court at

the City of Rochester, New York, this 26

day of May 1978

[SEAL]

/s/ Mary F. Zoller

Clerk

5a

302

SUPREME COURT OF THE

STATE OF NEW YORK

APPELLATE DIVISION

FOURTH JUDICIAL DEPARTMENT

PRESENT: Mars, P.J., DILLON, HANCOCK,

DENMAN, WITMER, JJ.

Appeal No. 2

JAMES A. FARRELL,

Appellant,

Vv.

HuGH CAREY, as Governor of the State of New York,

ERNEST L. BOYER, as Chancellor of the State Univer-

sity of New York, and ALBERT W. BROWN, as Presi-

dent of the State University College at Brockport,

Respondents.

The above named James A. Farrell, petitioner in this

proceeding, having appealed to this Court from an order

and judgment (one document) of the Supreme Court,

entered in the Monroe County Clerk’s office on June 1,

1976 and said appeal having been argued by Richard

Evans of counsel for appellant, Paul Harrison of counsel

for respondents, and submitted by Matthew Finkin for

the American Association of University Professors,

Amicus Curiae and due deliberation having been had

thereon,

It is hereby ORDERED, That the order and judgment

so appealed from be, and the same hereby is unanimously

affirmed without costs.

6a

Opinion by Marsh, P.J., which is hereby made a part

hereof.

Entered: May 26, 1978

Mary F, ZOLLER

Clerk

Supreme Court )

Appellate Division, )

Fourth Judicial Department, )

Clek’s Office, Rochester, N. Y. )

I, MARY F. ZOLLER, Clerk of the Appellate Division

of the Supreme Court in the Fourth Judicial Department,

do hereby certify that this is a true copy of the original

order, now on file in this office.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed the seal of said Court at

the City of Rochester, New York, this 26

day of May 1978

[SEAL]

/8/ Mary F. Zoller

Clerk

Ta

This opinion is uncorrected and sub-

ject to revision before publication in

the New York reports

SUPREME COURT

STATE OF NEW YORK

APPELLATE DIVISION

FOURTH DEPARTMENT

#3801/1978

Appeal No, 1

Louis T. DILORENZO,

Appellant,

—vVs,—

HuGH CAREY, as Governor of the State of New York,

ERNEST L, Boyer, as Chancellor of the State Univer-

sity of New York, and ALBERT W. BROWN, as Presi-

dent of the State University College at Brockport,

Respondents.

#302/1978

Appeal No, 2

JAMES A. FARRELL,

Appellant,

—vs.—

HuGH CAREY, as Governor of the State of New York,

ERNEST L. Boyer, as Chancellor of the State Univer-

sity of New York, and ALBERT W. BROWN, as Presi-

dent of the State University College at Brockport,

Respondents.

8a

Argued: April 6, 1978

Decided: May 26, 1978

PRESENT:

HON. JOHN S. MARSH, Presiding Justice

HON. MICHAEL F,. DILLON,

HON. STEWART F. HANCOCK, JR.

Hon. M. DOLORES DENMAN,

Hon. G. ROBERT WITMER, Associate Justices

+301—Appeal from Judgment of Monroe Supreme Court,

Blauvelt, J. in declaratory judgment action.

+302—Appeal from Judgment of Monroe Supreme Court,

Blauvelt, J. in Article 78 proceeding.

APPEARANCES:

3301—JOAN DE R. O’BYRNE

25 East Main Street

Rochester, New York 14614

Attorney for Appellant DiLorenzo

(Matthew Finkin, Esq., of counsel)

+ 302—HarrIs, MALONEY, Horwitz & EVANS

226 Powers Building

Rochester, New York 14614

Attorneys for Appellant Farrell

(Richard Evans, Esq., of counsel )

+301 &

302—RUTH KESSLER TOCH, Solicitor General

Hon. Louis J. LEFKowIrTz, Attorney General

The Capitol

Albany, New York 12224

Attorney for Respondents

(Paul Harrison, Esq., of counsel)

9a

#301 &

302—MATTHEW W. FINKIN, Esq.

School of Law, Southern Methodist University

Dallas, Texas 75222

Attorney for American Assn. of University Pro-

fessors, Amicus Curiae

MARSH, P.J.:

Petitioner James A. Farrell appeals from an order

and judgment which granted defendants’ motion to dis-

miss the petition and vacate a temporary restraining

order. Plaintiff Louis T. Di Lorenzo appeals from a

judgment which declared that any relief to which plain-

tiff was entitled could be obtained solely within the

procedures established by the collective bargaining agree-

ment between United Universities Professors, Inc. and

the State University of New York.

In his petition petitioner Farrell asserts that his first

appointment with State University College at Brockport

was as a counsellor with the Campus School on September

1, 1965 for a two-year period. On September 12, 1967

he obtained a continuing appointment as Associate Pro-

fessor. On October 30, 1970, he was transferred to the

Department of Educational Research by defendant Al-

bert W. Brown, President of the State University College

at Brockport. In a letter from President Brown dated

January 26, 1976 petitioner was notified that due to

reductions in the operating budget of tho State College

at Brockport, his continuing appointment would be termi-

nated effective February 29, 1976 and that the termina-

tion of the appointment constituted retrenchment. The

petition alleged that eight persons were retrenched under

the budget cutting at Brockport State College, five non-

instructional personnel such as maintenance men and

three academic personnel. It alleged that the Department

of Educational Research must have been declared a

10a

retrenchment unit. No hearing was accorded petitioner

prior to the termination notice. President Brown failed

to consult with faculty senate of Brockport prior to

retrenchment in order to establish the procedures and

criteria with which to guide the retrenchment. In ad-

dition, President Brown did not first terminate in the

Department of Educational Research untenured faculty

members and two assistant professors before reaching

petitioner, an associate professor, as required by the

collective bargaining agreement. On March 11, 1976

petitioner filed a grievance under the collective bargain-

ing agreement concerning his termination. The petition

seeks an administrative or judicial hearing to determine

the validity of petitioner’s termination of his tenured

position as an associate professor in the Department of

Educational Research.

Plaintiff Louis T. Di Lorenzo asserts in his first cause

of action that he obtained a term appointment as pro-

fessor in the Department of Educational Research on

May 20, 1970. He was granted a continuing appointment

at the professorial level on November 10, 1972. He re-

ceived a letter identical in form to that sent to petitioner

Farrell notifying him that his continuing appointment as

professor in the Educational Research Department would

be terminated effective on February 29, 1976. On March

10, 1976 plaintiff filed a grievance with respect to the

termination under the collective bargaining agreement.

In his first cause of action plaintiff alleges that the

Chancellor of the State University of New York failed

to seek the advice of the faculty senate concerning the

policy to be followed in retrenchment as required by the

policy articles of the State University Trustees. He as-

serts the right to a hearing to determine the criteria

for selecting the educational unit to be retrenched and

the manner in which retrenchment would be accomplished

within the chosen unit. The second cause of action refers

lla

to the collective bargaining agreement guidelines for

retrenchment and a failure to follow them constituting

a breach of the collective bargaining agreement.

The collective bargaining agreement between the State

University of New York and the United University

Professors, Inc. (UUP) in effect for years 1974 through

1976 provides for a three-step grievance procedure cul-

minating in binding arbitration. Article 7 of the collec-

tive bargaining agreement provides, inter alia:

“Grievance Procedure

$7.1 Purpose

The purpose of this Article is to provide a prompt

and efficient procedure for the investigation and

resolution of grievances. The orderly process here-

inafter set forth shall be the sole method for the

resolution of grievances. The State, UUP and em-

ployees shall endeavor initially to resolve grievances

informally when feasible.

$7.2 Definition

a. A grievance is a dispute concerning the in-

terpretation, application or claimed violation of a

specific term or provisions of this Agreement.

b. The term grievance shall also be deemed to

mean a claimed failure by the State to follow the

procedural steps provided by Articles of the Policies

relating to appointment and promotion of academic

employees or relating to appointment, promotion or

evaluation of professional employees (hereinafter re-

ferred to as ‘Policy Articles’).

ce. A claim of improper or unjust discipline shall

be processed in accordance with Article 19, Discipline,

of this Agreement and shall not be subject to the

grievance procedure contained in this Article.”

12a

The gravamen of Farrell’s petition and Di Lorenzo’s

complaint concerns the termination of their positions with

the State University College at Brockport, allegedly due

to budgetary restraints (retrenchment). Both parties

are members of a negotiating unit covered by the collec-

tive bargaining agreement and have, in fact, submitted

grievances pursuant to the grievance procedures of that

agreement. The collective bargaining agreement provides

for terminating an academic employee’s position with the

State University of New York and its constituent units

when retrenchment for budgetary or organizational rea-

sons is sought to be accomplished by the University ad-

ministration. Article 35 of the collective bargaining

agreement provides with respect to retrenchment:

“Retrenchment

§ 35.1 Retrenchment shall be defined as the ter-

mination of the employment of any academic or pro-

fessional employee during any appointment, other

than a temporary appointment which may be termi-

nated at any time, as a result of financial exigency,

reallocation of resources, reorganization of degree

or curriculum offerings or requirements, reorgani-

zation of academic or administrative structures, pro-

grams or functions or curtailment of one or more

programs or functions University-wide or at such

level of organization of the University as a campus,

department, unit, program or such other level of

organization of the University as the Chancellor or

his designee deems appropriate.

Ҥ 35.2 Consistent with the mission of the level

or organization of the University at which retrench-

ment occurs, the Chancellor or his designee, after

such consultation as may, in his judgment, be ap-

propriate, shall apply retrenchment among employees

holding the same or similar positions subject to re-

18a

trenchment at such level of organization in inverse

order of appointrnent within each affected group of

employees hereinafter referred to, as follows:

a. Part-time employees before full-time employees,

b. Full-time academic employees holding term ap-

pointments before those holding continuing

appointments.

¢. Full-time professional employees holding term

appointments before those holding permanent

appointments.

Ҥ 35.38 The State will notify the persons affected

by retrenchment as soon as practicable recognizing

that, where circumstances permit, it is desirable to

provide the following notice of termination:

a. For those holding a term appointment, at least

four months.

b. For those holding a continuing or permanent

appointment, at least one semester.

“$35.4 At the time of retrenchment the University

shall give special consideration for placement within

the University to an employee whose services might

be terminated as a result of retrenchment, provided

that a suitable position for which the employee is

otherwise qualified is available.

“$85.5 For a period of two years following re-

trenchment, an employee removed as a result of re-

trenchment who is not otherwise employed in the

University shall be offered reemployment in the same

or similar position at the campus at which he was

employed at the time of retrenchment should an op-

portunity for such reemployment arise. Any offer

of reemployment pursuant to this Section must be

accepted within 15 days after the date of the offer,

14a

such acceptance to take effect not later than the

beginning of the semester immediately following

the date the offer was made. In the event such offer

of reemployment is not accepted, the employee shall

receive no further consideration pursuant to this

Section. In the event such offer of reemployment is

accepted, the employee, upor commencement of such

reemployment, shall receive the following benefits

to the extent permitted by applicable law, rule or

regulation:

a. Seniority for purposes of retrenchment. The

employee shall receive the same seniority for pur-

poses of retrenchment as he held on the date of his

termination by reason of retrenchment.

b. Appointments. An academic employee who held

a continuing appointment on the date of his termi-

nation by reason of retrenchment shall resume his

continuing appointment. A professional employee

who held a permanent appointment on the date of his

termination by reason of retrenchment and who is

reemployment in the same position shall resume his

permanent appointment, otherwise he shall be given

a term appointment.

ce. Prior service credit. An employee who held a

term appointment on the date of his termination by

reason of retrenchment or who held a permanent

appointment but is not reemployed in the same posi-

tion held prior to termination by reason of retrench-

ment shall be granted a new term appointment and

shall be credited with all prior continuous service up

to a maximum of four years for purposes of eligi-

bility for permanent or continuing appointment.

d. Sick leave. An employee shall be credited with

the sick leave accruals which he had on the date of

his termination by reason of retrenchment.”

ee ———

el a

l5a

President Brown asserted in his termination notices to

appellants that he was exercising his authority pursuant

to the retrenchment provisions of the collective bargain-

ing agreement. Appellants have agreed to be bound by

the collective bargaining agreement by their membership

in the negotiating unit, irrespective of whether they per-

sonally supported the contract when approved. What-

ever other rights they might have had of a procedural

or constitutional nature, are deemed waived (Antinore

v State of New York, 49 AD2d 6, affd 40 NY2d 921). The

appellants fail to take into account that they have agreed

to grant the State University of New York the right to

terminate their services without a hearing upon a claimed

retrenchment other than that provided by the agree-

ment’s grievance procedures and binding arbitration.

They do not attack the collective bargaining process it-

self as a violation of constitutional due process (see

Mount St. Mary’s Hosp. of Niagara Falls v. Catherwood,

26 NY2d 493). The United States Supreme Court cases

cited by appellants have no application to termination

procedures covered by collective bargaining agreements

(see Board of Regents of State Colleges v. Roth, 408

US 564; Perry v. Sindermann, 408 US 593). Indeed,

this method of resolving labor disputes within the frame-

work of a collective bargaining agreement is most favored

by federal (Steelworkers v. Warrior & Gulf Co., 363

US 574) and state policy (Board of Educ. of Union

Free School Dist. No. 3 of Town of Huntington v. As-

sociated Teachers of Huntington, 80 NY2d 122). Thus

appellants’ argument is reduced to the proposition that

their constitutional due process rights are violated by

reason of the fact that the agreement to which they

gave assent fails to provide a type of hearing at which

they may raise issues of policy over which jurisdiction

appears to be reserved by the collective bargaining agree-

ment exclusively to the State University of New York

(cf. Matter of Gupta v Boyer, 55 AD2d 1024).

16a

A final point raised by appellants concerns the ap-

plicability of 8 NYCRR 338.14:

“BUDGET OR PROGRAM CURTAILMENT,

The services of any members of the academic staff

may be terminated in the event of financial or pro-

gram retrenchment. If the chancellor anticipates

that such retrenchment may be necessary, he shall

seek the advice of the faculty senate concerning the

policy to be followed in the reduction of staff.”

The policies of the board of trustees of the State Uni-

versity of New York contained in Chapter 5 (subpart B)

of which the above regulation is a part, have only a

limited application when a collective bargaining agree-

ment enacted pursuant to Article 14 of the Civil Service

Law is in effect with respect to a particular negotiating

unit within the State University system.

“8 NYCRR 3843.1 APPLICABILITY,

The provisions of the policies of the board of

trustees, insofar as they apply to employees in ne-

gotiating units established pursuant to article 14

of the Civil Service Law, shall be continued, pro-

vided, however, that during periods 0” time where

there is in effect an agreement between the state and

an employee organization reached pursuant to the

provisions of said article 14, the provisions of such

agreement and the provisions of said policies shall

both be applicable. In the event the provisions of the

agreement are different from the provisions of said

policies, the provisions of the agreement shall be

controlling.”

A close analysis of these two provisions leads to the

conclusion that the collective bargaining agreement and

particularly its detailed procedure with respect to re-

trenchment, should control in light of section 848.1. Sec-

— ee oe ee

ce a i a tt

17a

tion 338.14 has as its objective the formulation of poli-

cies which could very well overlap and conflict with the

detailed manner of handling retrenchment spelled out

in the collective bargaining agreement. Where the ap-

proaches to this problem differ, the collective bargaining

agreement should control. This is the position taken by

the concurring opinion of Justice Titone in Hedley v

State Univ. of N.Y. (54 AD2d 891, affd after remand

58 AD2d 576, affd upon ano point, 48 NY2d 698). The

issues arising from appellants’ retrenchment are ex-

clusively governed by the collective bargaining agree-

ment, hence the grievance procedure provided for in the

agreement and if demanded, binding arbitration, provide

the sole means of resolving them,

It would appear that the proper procedural vehicle

for reviewing the termination of plaintiff Di Lorenzo’s

tenure as a professor in the Department of Educational

Research is a proceeding under Article 78 to review in

the nature of mandamus and not a declaration of his

rights under the collective bargaining agreement, statutes,

regulations and the constitution. He does not seek as his

primary object a declaration of his rights, but rather

a review of the legality of his termination by the ad-

ministrative authorities responsible therefor. This is

clearly within the purview of an Article 78 proceeding

to review. However, since the necessary parties are

before the court, we convert the declaratory judgment

action to an Article 78 proceeding, which we may do

pursuant to CPLR 108, subd [c}.

The order and judgment in the proceeding brought by

the petitioner Farrell should be affirmed and the judg-

ment in the action brought by plaintiff Di Lorenzo modi-

filed by deleting the provision declaring the rights of the

parties and by dismissing the complaint, and otherwise

affirmed.

Dillon, Hancock, Denman and Witmer, JJ., concur.

i ee ee

19a

APPENDIX C

SUPREME COURT

STATE OF NEW YORK

COUNTY OF MONROE

Louis T, DILORENZO,

Plaintiff,

—VS—

HuGu L, Carey, in his official capacity as Governor of

the State of New York, ERNestT L., Boyer, in his offi-

cial capacity as Chancellor of the State of New York

and ALBERT W. BROWN, in his official capacity as

President of the State University of New York College

at Brockport,

Defendants.

Motion by defendants to dismiss complaint in action for

declaratory judgment, injunctive relief and money dam-

ages.

Judgment declaring rights of the parties and denying

injunctive relief and money damages.

Appearances:

Joan de R, O'Byrne, of Rochester, attorney for plain-

tiff.

Hon. Louis J. Lefkowitz, Attorney General of the

State of New York, of Albany (Paul O. Harrison,

Assistant Attorney General, of counsel), attorney

for defendants.

DECISION

This is an action for declaratory judgment wherein

plaintiff seeks a declaration of the rights of the parties,

20a

injunctive relief and money damages. Defendants have

made a motion to dismiss the complaint stating that the

motion is made pursuant to CPLR § 7804 (f) on objec-

tions in point of law. It seems that defendants’ motion is

mis-named as the motion is made in an action for de-

claratory judgment rather than in an Article 78 Proceed-

ing. This being an action for declaratory judgment, it

would be inappropriate to dismiss the complaint instead

of which, the rights of the parties will be determined and

declared in this decision.

The plaintiff Dr. Louis DiLorenzo has been a member

of the faculty of the State University College (SUC) at

Brockport since September of 1970; he was granted a

continuing (tenured) appointment as Professor at that

institution in September of 1973 and has since served

continuously as such in the Department of Educational

Administration and Supporting Services and in the De-

partment of Educational Research. On January 26, 1976,

defendant Albert W. Brown, President of SUC at Brock-

port, notified plaintiff by letter of the termination of his

appointment, which letter stated, in part:

“* * * The difficult financial situation facing the

State of New York has required the State Univer-

sity to make reductions in its present operating

budget and in its plans for the immediate future.

It is with sincere regret that I must inform you

that as a result of these reductions your continuing

appointment will be terminated at the close of busi-

ness on February 29, 1976. This termination of your

appointment constitutes retrenchment. * * *”

An order to show cause in this action, dated February

26, 1976, was issued out of this Court (Fritsch, J.) upon

application of the plaintiff, which order contained a tem-

porary restraining order enjoining defendants from ter-

minating plaintiff’s employment, until further order of

this Court.

ee ee

ee ct Ae ——

2la

Plaintiff contends that the termination of his employ-

ment was arbitrary and capricious and an abuse of dis-

cretion and seeks a declaratory judgment determining

that defendants’ actions were in violation of plaintiff’s

constitutional rights under the due process and equal pro-

tection clauses. Plaintiff further seeks a preliminary and

a permanent injunction restraining defendants from ter-

minating his employment, together with a judgment for

money damages including counsel fees.

Defendants move to dismiss the complaint upon the

ground that by the terms of a collective bargaining agree-

ment between the State of New York (State) and the

United University Professions, Inc. (UUP), plaintiff’s

sole remedy is limited to the grievance and arbitration

procedure provided for in the agreement.

On June 20, 1974, a collective bargaining agreement

was entered into between the State and UUP for a two-

year period to end June 30, 1976. The Agreement was

negotiated on behalf of plaintiff and other employees of

the State University of New York (SUNY) between the

State and UUP as representative of the negotiating unit

to which plaintiff belonged. Plaintiff is bound by the

terms of the agreement. Article 7 of the Agreement

states the sole method for the resolution of grievances is

to follow certain preliminary steps leading up to arbitra-

tion. Article 35 of the Agreement specifies the procedure

to be followed to effect termination of a position by re-

trenchment and therefor any grievance resulting from

retrenchment is arbitrable.

The constitutional rights of due process and equal pro-

tection of which plaintiff contends he was deprived were

waived by the said Agreement. Inasmuch as such a

waiver is not contrary to public policy, it is binding upon

plaintiff (Mount St. Mary’s Hosp. v. Catherwood, 26 N Y

2d 493). Plaintiff having waived his constitutional rights,

the sole and exclusive procedure for review of the termi-

22a

nation of his employment is by arbitration in accordance

with the provisions of the Agreement between the State

and UUP (Antinore v. State of New York, 49 A D 2d

6).

The unreported decision in the case of Donofrio v.

Hastings, Monroe County Supreme Court, (Smith, J.) is

not controlling. That case was decided July 9, 1975, nine

days before the decision in Antinore v. State of New

York, supra. Other cases cited by plaintiff in support of

his contentions involve neither waiver nor collective bar-

gaining agreements.

Judgment is directed declaring that plaintiff waived

his rights to due process and equal protection of the law

as guaranteed by the Constitution; that his sole and ex-

clusive remedy in the premises is by way of the grievance

procedure set forth in the collective bargaining agree-

ment; that he is not entitled to either a preliminary in-

junction or a permanent injunction; that he is not en-

titled to recover money damages from the defendants;

and that the temporary restraining order of February

26, 1976, be vacated.

Let judgment enter accordingly.

Dated, May 24, 1976.

s/ ARTHUR ERVIN BLAUVELT

Justice Supreme Court

23a

SUPREME COURT

STATE OF NEW YORK

COUNTY OF MONROE

In the Matter of the Application of

JAMES A. FARRELL,

Petitioner,

For a Judgment Pursuant to Article 78 CPLR

—

HvuGH CAREY, as Governor of the State of New York;

ERNEST L. Boyer, as Chancellor of the State University

of New York; and ALBERT W. BROWN, as President of

the State University College at Brockport,

Respondents.

Article 78 Proceeding.

Judgment for respondents dismissing the proceeding.

Appearances:

Harris, Maloney, Horwitz & Evans, of Rochester

(Richard J. Evans, of counsel), attorneys for

petitioner.

Hon. Louis J. Lefkowitz, Attorney General of the

State of New York, of Albany (Peter R. Tinsley,

Assistant Attorney General, of counsel), attorney

for respondents.

MEMORANDUM

This is a special proceeding under Article 78 of the

Civil Practice Law and Rules to review a determination

24a

of respondent Brown, dated January 26, 1976, which in-

formed petitioner that his tenured appointment as an

Associate Professor at the State University College

yd “y Brockport would be terminated on February

The petitioner Dr. James A. Farrell has been a mem-

ber of the faculty of SUC at Brockport since September

of 1965; he was granted a continuing (tenured) appoint-

ment as Associate Professor at that institution in Septem-

ber of 1967 and since September of 1970 has served in

that capacity in the Department of Educational Research.

On January 26, 1976, respondent Albert W. Brown,

President of SUC at Brockport, notified petitioner by

letter of the termination of his appointment, which letter

stated, in part:

“* * * The difficult financial situation facing the

State of New York has required the State University

to make reductions in its present operating budget

and in its plans for the immediate future.

It is with sincere regret that I must inform you that

as a result of these reductions your continuing ap-

pointment will be terminated at the close of busi-

ness on February 29, 1976. This termination of your

appointment constitutes retrenchment. * * *”

This proceeding was instituted by petitioner by Order

to show cause dated February 26, 1976 issued out of

this Court (Fritsch, J.) which contained a temporary

restraining order enjoining the respondents from termi-

nating petitioner’s employment, pending the hearing and

determination of this application.

Petitioner contends that the termination of his em-

ployment was illegal, arbitrary, capricious and null and

void because he was not accorded his constitutional due

process rights, in that he was not given notice of the

25a

intention to terminate his position and he was not af-

forded a hearing thereon with representation by counsel

and the right to present evidence and cross examine ad-

verse witnesses at such a hearing.

Respondents have not filed an answer to the petition,

but have raised a preliminary objection in point of law

by a motion to dismiss the petition upon the ground that

by the terms of a collective bargaining agreement be-

tween the State of New York (State) and the United

University Professions, Inc. (UUP), petitioner’s sole

remedy is limited to the grievance and arbitration pro-

cedure provided for in the agreement.

On June 20, 1974, a collective bargaining agreement

was entered into betwen the State and UUP for a two-

year period to end June 30, 1976. The agreement was

negotiated on behalf of petitioner and other employees

of the State University of New York (SUNY) between

the State and UUP as representative of the negotiating

unit to which petitioner belonged. Petitioner is bound

by the terms of the Agreement. Article 7 of the Agree-

ment states the sole method for the resolution of griev-

ances is to follow certain preliminary steps leading up to

arbitration. Article 35 of the Agreement specifies the

procedure to be followed to effect termination of a posi-

tion by retrenchment and therefor any grievance result-

ing from retrenchment is arbitrable.

It is the opinion of this Court that the constitutional

rights of due process of which petitioner claims he was

deprived were waived by the said Agreement. Inasmuch

as such a waiver is not contrary to public policy, it is

binding upon petitioner (Mount St. Mary’s Hosp. V.

Catherwood, 26 N Y 2d 493). Petitioner having waived

his constitutional rights, the sole and exclusive procedure

for review of the termination of his employment is by

arbitration in accordance with the provisions of the

Agreement between the State and UUP (Antinore v.

State of New York, 49 A D 2d 6).

26a

Accordingly, motion of respondents to dismiss the pro-

ceeding and to vacate the temporary restraining order

of February 26, 1976, is granted and judgment is di-

rected in favor of respondents.

Submit order.

Dated, May 24, 1976.

/s8/ Arthur Ervin Blauvelt

Justice Supreme Court

Original of decision and all motion papers have been

forwarded to Monroe County Clerk’s Office.

ARTHUR ERVIN BLAUVELT, J.S.C.

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27a

APPENDIX D

THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

99 Washington Avenue

Albany, New York 12230

November 6, 1978

Professor Mathew Sinkin [sic]

School of Law

South Methodist University

Dallas, Texas 75257

Dear Professor Sinkin: [sic]

At the request of Professor Sondra Dourant, I relate

here for your information certain findings as related

to me by Mr. Leonard Powell, Chief of the Bureau

of Education Data Systems of the New York State Edu-

cation Department.

For school fiscal year 1977-78 there were employed

in New York States Public Schools 172,394 teachers of

which 144,826 or 84% were tenured, 24,011 or 13.9%

were probationary, 3,097 or 1.8% were substitutes, and

460 or .8% were classified as unknown.

For your further information, you are advised that in

New York State permanent part-time teachers (those

employed for less than a full day on a regular basis)

who were not previously tenured employees and not teach-

ing on a part-time basis at the request of their board of

education, are neither considered probationary, tenured,

or substitute employees. This class of people have no

eligibility for either probationary or tenure status and

are not likely those considered among the ranks of those

listed as unknown.

28a

I trust that the foregoing information will meet your

needs.

Very truly yours,

/s/ Vito F. Longo

ViTo F. LONGO

VFL/cs

Enclosure

ec: Professor Sondra Dourant