# Petition — Kornit v. Board of Education of Plainview-Old Bethpage School District

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 936

## Text

4

“KO IR, CLERK |

IN THE

Supreme Court of the Auited States
October Term, 1978

No 78-1088

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. Kornit
Petitioner Pro Se
70-25 Yellowstone Boulevard
Forest Hills, New York 11375
Tel. No. 212-261-8578

TABLE OF CONTENTS

PAGE
che bik busta hnas heen ateaeee 1
EES. YEE EE San 3
I NN orice ack. oes cctiscesacneeys 3
a aR Ia oe a See ee 5)
rk ss tae enseekesseaees 9
Reasons for Granting the Writ ................... 11
i tee OL hs wea ckan eae aes aei nee eds 27

Index to Citations
CasEs:
Arnett v. Kennedy, 416 U.S. 134 (1974) ......... 16, 17

City of Amsterdam v. Helsby, 37 N.Y. 2d 19 (1975) 17
City of Buffalo v. New York State Public Employ-
ment Relations Board, (combined with City of
Amsterdam vy. Helsby), 37 N.Y. 2d 19 (1975) .. 17
Collins v. Wilson (Carey), 416 U.S. 977 (1974), 421
eT aes cin mange o aed 16

Feinberg v. Board of Education of the City of New
York, 34 N.Y.S.2d 618 (1973), 51 A.D. 2d 548

er ee ie a So ek d haie eae obese s 24
Gibson v. Berryhill, 411 U.S. 564 (1973) ......... 15, 16
Hortonville Joint School District No. 1 v. Horton-

ville Education Assn., 426 U.S. 482 (1976) ..... 15

Monell vy. Dept. of Social Services of the City of
New York, 436 U.S. — (1978) .............. 2,11, 16

il

PAGE

Sanford vy. Wilson (Carey), 416 U.S. 977 (1974),
TE EN ses iss oc ek coe aes va veces 16

Sniadach v. Family Finance Corporation of Bay
foe ie ae, ee 12, 20, 21

Tucker vy. Commissioner of Internal Revenue, 69
T.C. No. 54, Docket No. 7971-75 (1978) ....... 2
Tumey v. Ohio, 273 U.S. 510 (1927) .......... _ l

Ward v. Village of Monroeville, Ohio, 409 U.S. 57
EN a eee ee ans aes oa s oa 0a 006 04 15

CONSTITUTIONAL AND Statutory Provisions:

United States Constitution:

Be ee ee 4, 25
re re er ere 4, 25
Fourteenth Amendment ............ 4,5, 16, 17, 23, 25

United States Supreme Court Jurisdiction, 28
MME 055 55's i siyk Vn 0ad an a. ced ed-one hs 3
ederal Civil Rights Act of 1871, 42 U.S.C. 1983. .4, 5, 10,
11, 16,17

Federal District Courts Subject Matter Jurisdic-
Se SEs WRI oa coved dacs savinccsvecs 10

Federal Wage Garnishment Law, 15 U.S.C. §§ 1672,
Se ree 4, 5, 10, 12, 20, 22, 23, 24, 25, 26, 27

New York State 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, 7, 12, 14, 15, 16, 17,

18, 19, 20, 21, 22, 23, 24, 25, 26, 27
U.S. GoverNMENT PuBLicaTion:

United State Department of Labor Booklet The
Federal Wage Garnishment Law, WH Publica-
tion 1324 (Revised February, 1978) .......... 22

IN THE

Supreme Court of the United States
October Term, 1978
No.

d
bs

Harvey S. Koryit,

Petitioner,
against

Boarp oF Epvucation of the
Puarnview-O_p Betupace Scuoou District
Puiainview, New York,
Respondent.

a
vv

PETITION (WITH APPENDICES) FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT

The petitioner, Harvey S. 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,
upon remand from the Supreme Court of the United States,
entered in the Office of the Clerk on October 4, 1978. A
Petition for Rehearing was submitted to the United States
Court of Appeals for the Second Circuit on October 16,
1978. The Petition for Rehearing was denied on November
14, 1978.

Opinions Below

The Decision of the United States District Court for the
Eastern District of New York is not reported and is re-
produced as Appendix I, infra at la-5a. The Opinion of

to

the District Court denying a motion to amend defendant
parties is unreported and is reproduced as Appendix IT,
infra at 6a-7a. The Opinion of the United States Court
of Appeals for the Seeond Cireuit remanding this action
with instructions to dismiss 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 Cir-
cuit denying a Petition for 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 dismissing this action for lack of subject matter
jurisdiction is unreported and is reproduced as Appendix
V, infra at 18a.

The action, in a Petition for a Writ of Certiorari, was
brought to the Supreme Court of the United States, which,
in a Memorandum Decision, granted certiorari and vacated
the Decision of the United States Court of Appeals on
June 26, 1978, for further consideration in light of Monell v.
Dept. of Social Services of the City of New York, 436 U.S.
(1978) Cireuit. The Decision of the Supreme Court of the
United States is reported at 436 U.S. — (1978) and is re-
produced as Appendix VI, infra at 14a.

The Order of the United States Court of Appeals for the
Second Circuit vacating the Judgment and mandate is not
reported, and is reproduced as Appendix VII, infra at l5a-
16a, The Decision of the United States Court of Appeals for
the Second Circuit affirming the Decision of the United
States District Court for the Eastern District of New York
is not reported, and is reproduced as Appendix VIII, infra
at 17a-18a. The Order of the United States Court of Appeals
for the Second Cireuit denying a Petition for Rehearing is
unreported and is reproduced as Appendix LX, infra at 19a.

Jurisdiction

The United States Court of Appeals for the Second Cir-
cuit rendered its original Judgment remanding with instrue-
tions to dismiss because of a lack of subject matter juris-
diction on September 15, 1976. A Petition for Rehearing
submitted on September 19, 1976 was denied July 19, 1977.
A Petition for a Writ of Certiorari was submitted to the
Supreme Court of the United States on October 8, 1977, and,
on June 26, 1978, the Court granted certiorari, vacating the
original Judgment of the Court of Appeals. Upon remand
the Court of Appeals, on October 4, 1978, affirmed the Deci-
sion of the United States District Court for the Eastern
District of New York, which had originally dismissed this
action on substantive grounds. A Petition for Rehearing
submitted on October 16, 1978 was denied on November 14,
1978. The jurisdiction of the Supreme Court of the United
States is requested under 28 U.S.C. § 1254(1).

Substantial Federal constitutional questions remain un-
resolved as well as a significant conflict of interpretation
between the United States Court of Appeals for the Second
Cirenit and the United States Tax Court regarding in-
debtedness and garnishment of earned wages.

Questions Presented

1. Whether the New York State Taylor Law, New York
Civil Service Laws, Sections 200-14, as amended in 1969, is
unconstitutional since it authorizes officials of a board of
education with a vested and substantial pecuniary interest
to make determinations of guilt or innocence of employees
alleged to have participated in a work stoppage, such
determinations of guilt resulting in the illegal and ex-
cessive garnishment by officials of the board of education
of duly earned wages for work actually performed, deducted

from wages earned in payment of penalties imposed, in
violation of petitioner’s civil rights under the Due Process
Clause of the Fourteenth Amendment of the United States
Constitution as defined in statute under the Civil Rights
Act of 1871, 42 U.S.C. § 1983.

2. Whether the Superintendent of Schools and the Acting
Superintendent of Schools, acting as officials of the Plain-
view-Old Bethpage School District had a pecuniary interest
sufficient to disqualify them from acting in a position of
adjudication of finality which led to the garnishment of
earned wages for work performed from the salaries of the
petitioner, a teacher in the School District, and others, such
penalties deducted significantly and substantially benefit-
ting the budgetary needs of the School District, in violation
of the Due Process Clause of the Fourteenth Amendment
of the United States Constitution.

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 an amount far in excess
of the limitations of the Federal Wage Garnishment Law,
in violation of the Fourth Amendment of the United States
Constitution and the Eighth Amendment of the United
States Constitution.

4, Whether the New York State Taylor Law, Civil Ser-
vice Laws, Section 200-14, as amended in 1969, places an
unfair and extraordinary burden on the collective bargain-
ing process by offering to school districts free unpaid labor
through the adjudication by officials of the boards of edu-
cation with a pecuniary interest should a contract not be
reached and should a work stoppage occur,

5. Whether the New York State Taylor Law, Civil Ser-
vice Law, Section 200-14, as amended in 1969, created an

extra-legal system which is in conflict with the Federal In-
ternal Revenve Code and Social Security Laws so that
through ambiguity the Plainview-Old Bethpage School Dis-
trict has acted in violation thereof, by not crediting duly
earned wages to the account of employees and by not making
proper and timely payments of income withholding taxes
and Social Security taxes.

6. Whether the complaint to the United States District
Court for the Eastern District of New York stated a cause
of action because of the lack of Constitutional Due Process
and the violation of petitioner’s civil rights under the Due
Process Clause of Fourteenth Amendment to the United
States Constitution when his duly earned wages for work
performed were garnished from his salary by parties with
a pecuniary interest, without a lawful court, and in violation
of the limitations of the Federal Wage Garnishment Law.

Statutes Involved

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

Every person who, under color of any statute, ordinaice,
regulation, custom, or usage, of any State or Territory,
subjects, 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
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,

6

salary, commission, bonus, or otherwise, and includes peri-
odie 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 is 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 bankruptey under
Chapter XIII of the Bankruptey Act.

~I

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

(c) No court of the United States or any State, and no
State (or officer or agency thereof) 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
Chapter 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 determinations
shall not be final until the completion of the procedures
provided for in this subdivision.

§ 210. 2. (e) Notice. The chief executive officer shall
forthwith notify each employee that he has been found to
have committed such violation the date or dates thereof and
of his right to object to such determination pursuant to
paragraph (h) of this subdivision; he shall also notify the

* Italicized part of § 1673 (c) added as per amendment; Public
Law 95-30, Title V, §501(e)(3), May 23, 1977, 91 Stat.
161,162.

chief fiseal officer of the names of all such employees and
of the total number of days, or part thereof, on which it has
been determined that such violation occurred. Notice to
each employee shall be by personal service or by certified
mail to his last address filed by him with his employer.

) 210. 2. (g) Payroll deductions. Not earlier that thirty
nor later than ninety days following the date of such deter-
mination, the chief fiseal officer of the government involved
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 con-
puted as of the time of such violation. (Technical part
omitted)

§ 210. 2. (h) Objections and restoration. Any employee
determined to have violated this subdivsion 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 subdi-
vision) 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 sustain the objection. If the chief executive officer
shall determine that the affidavit and supporting proof fails
to establish that the employee did not violate this subdivi-
sion, he shall dismiss the objection and so notify the em-
ployee. 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 subsection, he shall

oO

appoint a hearing officer to determine whether in fact the
employee did violate this subdivision after a hearing at
which such 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 subdivision, the
chief exeeutive officer shall so notify the employee. If the
chief executive officer sustains an objection or the hearing
officer determines on a preponderance of the evidence that
such employee did not violate this subdivision, the chief
executive officer shall forthwith restore to the employee the
tenure, suspended pursuant to paragraph (f) of this sub-
division, and notify the chief fiseal officer who shall cease
all further deductions and refund any deductions previously
made pursuant to this subdivision, The determinations pro-
vided in this paragraph shall be reviewable pursuant to
article seventy-eight of the civil practice law and rules.

Statement of the Case

The plaintiff in this action is a Social Studies teacher in
the Plainview-Old Bethpage School District on Long Island
in New York State. The defendant is the Board of Eduea-
tion, whose members acting as a body corporate are the
administrative trustees of the Plainview-Old Bethpage
School District.

In September of 1972 a four-day work stoppage took place
at the School District. The plaintiff does not deny his in-
volvement in this work stoppage, but contends that the
penalty provisions of the New York State Taylor Law which
authorized the administrative judicial proceedings that fol-
lowed the work stoppage allowing officials of the Board of
Edueation with a substantial and vested pecuniary interest
to make determinations of guilt, and which authorized the
deduction of penalties from employees’ earned wages for

10

work performed, may be a significant factor which caused
the advent of the work stoppage in the first instance. Tn
addition wages were garnished in violation of the limita-
tions of the Federal Wage Garnishment Law and without
a prior impartial hearing.

In his complaint filed on April 5, 1975 in the United
States District Court for the Eastern District of New York,
plaintiff challenged, on constitutional grounds, the New
York State Taylor Law sections which allowed those ad-
ministrative judicial proceedings as well as the actual pro-
ceedings which took place. Jurisdiction was initially based
on the Fourteenth Amendment to the United States Con-
stitution and on both 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

In a Memorandum and Order, decided July 22, 1975, the
District Court, the late Honorable Orrin G. Judd, granted
defendant’s motion to dismiss the action on substantive
grounds, not ruling on the jurisdictional question, la-5a.,

An appeal was begun to the United States Court of Ap-
peals for the Second Cireuit on September 17, 1975, after
plaintiff was granted an extension of time to file on motion
to the Distriet Court. On May 11, 1976 a motion by plaintiff
to amend the defendant parties was denied by the District
Court, the late Honorable Orrin G. Judd, in a Memorandum
and Order, Ga-7a.,

On September 15, 1976, the United States Court of Ap-
peals for the Second Circuit vacated the Judgment of the
Distriet Court with instructions to dismiss for lack of sub-
ject matter jurisdiction, Sa-lla.

On July 19, 1977, the original panel at the United States
Court of Appeals for the Second Cireuit denied plaintiff's
Petition for Rehearing, 12a.

On September 15, 1977, an Order was issued by the Dis-
trict Court, pursuant to the Decision of the Court of Ap-

11

peals for the Second Circuit, whereby the action was dis-
missed for lack of subject matter jurisdiction, 13a.

On October 8, 1977, the plaintiff filed a Petition for a Writ
of Certiorari in the Supreme Court of the United States.
The Supreme Court of the United States granted the peti-
tion for a writ of certiorari in a Memorandum Decision on
June 26, 1978, The Judgment of the United States Court
of Appeals for the Second Cireuit was vacated and the ease
was remanded for further consideration in light of Monell
v. Department of Social Services of the City of New York,
436 U.S. (1978). Memorandum Decision, I4a.

The United States Court of Appeals, on July 28, 1978,
issued an Order vacating its Judgment and Mandate of
September 15, 1976, which had instructed the Distriet Court
to dismiss the action because of the lack of subject matter
jurisdiction, 15a-16a.

The United States Court of Appeals, on October 4, 1978,
upon submission, issued an Order vacating its Judgment of
September 15, 1976, and affirmed the Decision of the District
Court, the late Honorable Orrin G. Judd, against the plain-
tiff on the substantive matter, 17a-18a.

On November 14, 1978, the original panel of the United
States Court of Appeals for the Second Cireuit denied a
Petition for Rehearing submitted by the plaintiff, 19a.

Reasons for Granting the Writ
I.

In holding that suit, brought under 42 U.S.C. § 1983 be-
cause of a violation of the Due Process Clause of the Four-
teenth Amendment, should be dismissed, even though plain-
tiff has indicated the clear pecuniary interest of the adjudi-

12

cating parties, namely the Superintendent of Schools and
the Acting Superintendent of Schools, who acting as officials
of the defendant Board of Edueation were not impartial
adjudicators in matters which would lead to the garnish-
ment of plaintiff's earned wages for work performed in vio-
lation of the Court’s Decision in Sniadach v. Family Finance
Corporation of Bayview, 395 U.S. 337 (1969), and the
Federal Wage Garnishment Law, 15 U.S.C. §§ 1672, 1673.

This action has been brought on constitutional grounds
Within jurisdiction 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 New York
State Taylor Law penalty provisions (Amendments of
1969) also state that the school district employer may fine
the employee two days’ penalty after adjudication by offi-
cials of the School District, if an agreement is not reached
and a strike does oceur for each day that an employee is not
at work. Thus what may be a threat to and penalty for the
employee becomes a potential contingent reward to the
employer which places an unfair and extraordinary bnr-
den on the collective bargaining process. Although this
petitioner feels that the loss of all wages, whether earned
or not, would not have necessarily occurred had this tempta-
tion not existed, he has brought suit only to recover that
part of his wages for work performed which were garnished
without a lawful court order.

1. Administrative Judicial Proceedings

The adjudication of school district employees alleged to
have been involved in a work stoppage is conducted by the
superintendent of schools by mail. Objections to his de-
termination must be made by mail in an affidavit signed by

13

the employee, The superintendent of schools may find the
individual guilty or innocent on the basis of the affidavit, or
the superintendent can refer the matter concerning an in-
dividual to a hearing officer. The hearing officer is appointed
contractually by the board of education and/or superin-
tendent of schools and is paid school district funds. The
hearing officer may or may not be a lawyer, although an
attorney was hired by the Plainview-Old Bethpage School
District for those individuals who were granted hearings.
The hearing officer is not an employee of New York State
and since he is not chosen bilaterally, as is an arbitrator by
the school district and the bargaining agent, he certainly
has no juridical authority in accordance with Constitutional
Due Process to make judicial determinations which will lead
to the garnishment of duly earned wages of New York
State employees. A superintendent of schools is also dis.
qualified as an adjudicator because he has a indirect pe-
cuniary interest in his capacity as an official of the board of
education which has a direct and corporate pecuniary in-
terest.

Therein lies the conflict of interest. The Superintendent
of Schools, who as chief executive officer of the School
District is empowered under the Taylor Law penalty pro-
visions to make judicial determinations of guilt or innocence,
is also responsible for the preparation of the Superinten-
dent’s Budget for examination and any revision by the
Board of Edueation before the budget is submitted to School
District voters. Thus the Board of Education, the trustees
of the funds of the School District, and the Superintendent
of Schools, as an agent of the Board have a vested pecuniary
interest in the determination of guilt or innocence.

One may consider guilt to be obvious ex post facto, so it
does not matter who the judge is. However it is not only a
violation of Constitutional Due Process, but the judicial in-

14

volvement of someone with an obvious substantial pecuniary
interest may be a major cause for the work stoppage to have
occurred. Collective bargaining negotiations are a delicate
matter. The temptation of financial inducements to a board
of education and the authorization for the board of educa-
tion tu hold administrative proceedings to financially pena-
lize employees is counter-productive to the purpose of the
original sections of the Taylor Law.

It is clearly obvious that no work stoppage occurs after
the signing of a contract. The Taylor Law penalty provi-
sions by offering a school district free unpaid labor, should
a contract not be signed and should a work stoppage occur,
create, not only a vested pecuniary interest at the adjudica-
tion level, but a contingent pecuniary interest during the
contractual negotiations which can only influence and im-
pede the settlement of those negotiations, ab initio.

In the current action, 641 persons are alleged to have
participated in a work stoppage, of whom 68 persons filed
the requested affidavits. Of these 68 persons the Acting
Superintendent of Schools determined that 22 persons were
innocent. The Acting Superintendent also determined that
9 persons were guilty. The Acting Superintendent referred
37 individuals to a hearing before the unilaterally appointed
hearing officer. The decisions in these instances is unknown
to the petitioner. In addition the Acting Superintendent of
Schools found guilty those 573 employees “who chose not to
properly avail themselves of the aforementioned proce-
dure.” The petitioner was among this group, which, under
instructions from the bargaining agent, requested a fair
hearing but was denied any hearing before or after the
garnishment of earned wages for work performed.

An appeal under Article 78 from the administrative pro-
ceedings of the School District does not meet the require-
ments of Constitutional Due Process since that appeal

15

comes “after the taking” of wages and the appeal has been
tainted and prejudiced through previous administrative
proceedings by parties with a vested pecuniary interest.

The judicial procedures under the Taylor Law penalty
provisions are in direct violation of the principle of Tumey
v. Ohio, 273 U.S. 510 (1927) and Ward vy. Village of Monroe-
ville, 409 U.S. 57 (1972), which indicates that a person with
a substantial pecuniary interest, whether personal and
direct, or indirect as a major responsibility for instru-
mentality budget preparation, cannot act in a jndicial ca-
pacity.

In addition, Ward y. Village of Monroeville, Ohio, supra,
defines another applicable principle: that the court of in-
stance 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. It must be noted that the Taylor Law penalty
provisions state a specific time within which deductions
from earned salary are to be executed. These deductions
are not stayed pending or during a hearing or Article 78
appeal.

The obiter dictum of the Decision of the United States
Supreme Court in Hortonville Joint School District No. 1 v.
Hortonville Education Assn., 426 U.S. 482 (1976), in Point
II, Part B, first paragraph, at 426 U.S, 491-2, 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 subject matter directly before the Court in the
Hortonville, supra, action, but the current matter has all of

16

the pecuniary ingredients mentioned in the obiter dictum of
the Hortonville, supra, Decision. Officials, acting as agents
of the Board of Education would, by an extension of logic,
be disqualified because of the same conflict of interest in
the administrative adjudication process.

The recent Decision of the United States Supreme Court
in Monell vy. Department of Social Services of the City of
New York, 4386 U.S. (1978), gives added strength to
the petitioner’s suit. The Decisions below indicated that
Gibson v. Berryhill, supra, was not applicable since the
Superintendent of Schools did not have a personal pecuni-
ary interest in his adjudicating capacity. The Decision in
Monell, supra, may have made this holding academic, for
Monell indicates that a board of education is a person for
purposes of 42 U.S.C. 1983. Therefore the pecuniary inter-
est of the Board of Education, as a corporate body, in the
adjudication process conducted by its agent, the Superin-
tendent of Schools, would be personal and direct. Such a
personal and direct pecuniary interest in the adjudication
process would be violative of 42 U.S.C. 1983 and the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution.

Cases concerning the New York State Taylor Law were
presented before the United States Supreme Court and
were decided on May 13, 1974. These parallel actions were
Sanford v. Wilson, 416 U.S. 977 (1974) and Collins v. Wil-
son, 416 U.S. 977 (1974). These cases were appeals from
the New York State Court of Appeals. This Court vacated
the judgments and remanded the cases to the New York
Court of Appeals for further consideration in light of Ar-
nett v. Kennedy, 416 U.S. 134 (1974). Upon remand, the
Court of Appeals of New York State reaffirmed its Decision
in both actions on December 19, 1974. 35 N.Y.2d 547. The
petitioners returned to the United States Supreme Court

17

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-
eated that they would note probable jurisdiction and would
set the case for oral argument. 421 U.S, 973 (1975).

The current action adds two significant dimensions which
were not present in Arnett v. Kennedy, supra. That action
did not involve the pecuniary interest on the part of a
decision maker nor did it involve the garnishment by the
immediate employer of earned wages for work performed.
The current action has both of these aspects clearly present
and this case should be judged on its own merits.

2. Binding Arbitration for
Policemen and Firemen
A new dimension was added to the unconstitutionality of
the New York State Taylor Law in 1974. Amendments to
Section 209 of the Taylor Law (Chapters 724 and 725 of
the New York State Laws of 1974) bifureated the Taylor
Law in such a manner as to deny teachers and others the
equal protection of the law as required by 42 U.S.C. 1988
and the Fourteenth Amendment to the United States Con-
stitution.

The Amendments to Section 209 of the Taylor Law re-
quire that instrumentalities of New York State and their
policemen and firemen employees enter into binding arbitra-
tion if agreement cannot otherwise be reached in contractual
negotiations.

The cities of Amsterdam and Buffalo brought snit to
declare the Amendments of 1974 unconstitutional because of
a violation of the Home Rule provisions of the New York
State Constitution (Art IX, § 2, Subd (¢c)). The New York
State Court of Appeals decided on June 5, 1975, in City of
Amsterdam y. Robert D. Helsby, combined with City of

18

Buffalo v. New York State Public Employment Relations
Board, 37 NY2d 19 (1975) that the Amendments were
constitutional. The Amendments are currently part of the
New York State Taylor Law.

Although the Taylor Law is a general law in regard to
all employees of New York State and the civil adjudicative
proceedings and financial penalties as well as possible erimi-
nal penalties remain the same for all employees in case of a
strike, the procedures in regard to instrumentalities and
their policemen and firemen employees created by the
Amendments of 1974 virtually eliminate the possibility that
a work stoppage might be resorted to by policemen and
firemen. The arbitrator is directed under the Amendments
of 1974 to take into account the financial ability of the in-
strumentality as well as the financial needs of the employee,

Thus the bifureation of the Taylor Law creates a situation
in which, in theory, all employees are subject to the financial
and criminal penalties of the Taylor Law penalty provi-
sions, but in practice one class of employees, namely police-
men and firemen, are protected from that eventuality by
the requirement upon them and “heir instrumentality em-
ployer to go to binding arbitration. Even in consideration
of the difficult and dangerous work of policemen and fire-
men, it is unfair and unconstitutional to deny teachers and
others and their government employers the same fair and
equitable procedure. As the Amendments of 1969 created a
violation of the Due Process Clause of the Fourteenth
Amendment, so the Amendments of 1974 create a violation
of the Equal Protection Clause of the Fourteenth Amend-
ment.

The New York State Court of Appeals in City of Amster-
dam v. Helsby, supra, found the Amendments of 1974 to be
coustitutional sinee the Taylor Law was a general law and
the Amendments were applicable to all instrumentalities of

19

New York State. However the Taylor Law was a general
law since it was applicable, as well, to all employees. Since
the Amendments of 1974 do not include teachers and others,
so that they are afforded this vital procedure in resolving
disputes through binding arbitration, it is clear that the
Taylor Law is not enforced equally for the protection of all
employees.

Although the Amendments of 1974 did not exist at the
time of the work stoppage in the current matter before the
Court, their passage subsequently by the New York State
Legislature indicates that the Amendments of 1969 were
considered ineffective and unfair. If binding arbitration is
fair and equitable for one class of employees covered by
the general Taylor Law, then in all fairness it should have
been extended to all employees. That decision is a legisla-
tive one. However the denial of binding arbitration to
teachers and others within the framework of the Taylor
Law is a judicial matter, and bears examination.

If the Taylor Law penalty provisions (Amendments of
1969) were found unconstitutional by this Court as here
sought by petitioner in the writ, the Amendments of 1974
requiring binding arbitration for instrumentalities and
their policemen and firemen employees would remain intact.

Thus the bifureation of the Taylor Law has created a
situation in one class of employees is treated quite differ-
ently than the other. For one class of employees, because of
the Amendments of 1974, the fair and equitable resolution
of labor disputes is made possible. For the other class of
employees, because of the Amendments of 1969, the fair
and equitable resolution of labor disputes is made virtually
impossible for the reasons previously indicated.

For the above stated reasons the writ here sought should
be granted. Alternatively, the Decision below should be

20

vacated and remanded for reconsideration, or the Supreme
Court could remand the matter to the United States District
Court for the Eastern District of New York for a plenary
hearing.

In holding that the deductions made under the Taylor
Law penalty provisions were not garnishments, even though
the deductions were made from earned wages for work per-
formed in violation of Sniadach v. Family Finance Corpora-
tion of Bayview, 395 U.S. 337 (1969), which requires notice
and hearing, and in clear violation of the limitations of the
Federal Wage Garnishment Law, 15 U.S.C. § 1673(a).

1. Garnishment of Earned Wages

[f a hearing were held by the Board of Education before
the garnishment of earned wages, the hearing would not
meet constitutional requirements because of the vested pe-
cuniary interest of the Board of Education and the Superin-
tendent of School as its agent. Similarly the summary
administrative proceedings are a violation of Constitutional
Due Process and the Sniadach, supra, rule.

The garnishments made under the Taylor Law cannot be
considered as exempt from the limitations of the Federal
Wage Garnishment Law as “amounts required by law to be
withheld.” (15 U.S.C. § 1672(b)). To do so would be to
declare the Federal Wage Garnishment Law null and void.
In facet the Taylor Law penalty provisions are an unconsti-
tutional and illegal circumvention of the Federal Wage
Garnishment Law. Legal garnishments themselves are con-
ducted according to law. The test is whether there is “any
legal or equitable procedure” and whether “the earnings of
any individual are required to be withheld for the payment
of any debt.” The “legal or equitable procedure” were the

21

administrative proceedings conducted by the Superinten-
dent of Schools and the Acting Superintendent of Schools
and the “debt” is the amount of indebtedness created by the
judicial determinations of those proceedings.

The Decision of the United States Court of Appeals for
the Second Circuit in the current action is in conflict with
the Decision of the United States Tax Court in Tucker vy.
Commissioner of Internal Revenue, 69 T.C. No. 5, Page 675,
Docket No. 7971-75, decided February 8, 1978, as to whether
deductions under the Taylor Law penalty provisions are a
garnishment of earned wages.

The United States Tax Court in the Tucker Decision, in
part, at 678, stated:

“Tt is clear that when Carol engaged in an illegal
strike she incurred an indebtedness because of the
penalty specified by the Taylor Law. This debt was
satisfied when, upon her return to work, the School
District withheld a portion of her normal salary cor-
responding to the amount of her indebtedness. This
procedure is analogous to a garnishment of wages
commonly used by ereditors as a collection mecha-
nism.”

The United States Court of Appeals for the Seeond Cir-
cuit in its Decision of October 4, 1978 in the eurrent action,
in part, stated:

“The procedure provided by N.Y. Civil Serviee Law
§ 210 does not amount to a garnishment without
hearing or court order in violation of Sniadach v.
Family Finance Corp., 395 U.S, 337 (1969).”

The penalties imposed under the Taylor Law may be
considered statutory in amount, but their imposition re-
quires judicial determinations by the Superintendent of
Schools that a “strike” has taken place and that the indi-

vidual involved was a participant. The deductions under
the Taylor Law clearly meet the garnishment definition of
the Federal Wage Garnishment Law. The violation of the
Sniadach, supra, rule oceurs because of two reasons. The
Board of Education and the Superintendent of Schools ean-
not, due to a vested pecuniary interest, adjudicate the matter
fairly. Secondly legal garnishments of wages can only be
done by the courts of law empowered to do so. The United
States Department of Labor in its booklet, The Federal
Wage Garnishment Law, WH Publication 1324, (Revised
February 1978), in part, states on Page 11:

“An individual’s earnings are ‘subjected to garnish-
ment’ for purposes of this law when the garnishee
(employer) withholds earnings pursuant to a gar-
nishment order.”

Thus the Department of Labor indicates that it considers
that it is not bound to enforce the limitations of the Federal
Wage Garnishment Law if the ‘garnishment is not directed
by a court which issues garnishment orders. Under the
Taylor Law, generally excessive deductions of salary are
made even though Section 1673 (¢) of the Federal Wage
Garnishment Law states:

“No court of the United States or any State, and no
State (or officer or agency thereof) may make, exe-
cute, or enforce any order or process in violation of
this section.”

The excessive garnishments under the Taylor Law, fre-
quently deducting more than sixty, seventy, eighty or
ninety percent of disposable salary for periods up to two
months, serve no legitimate governmental purpose and are
so far beyond the bounds of civilized standards that they
would be unjustified even if they did serve some purpose.

The fact that these excessive deductions are permitted
without any regard for human dignity or basic human needs
lends added credence that the deductions, even if they were
not excessive, are made in a manner which supports the
contention that the adjudication and execution procedures
of the Taylor Law penalty provisions are in total violation
of the Due Process Clause of the Fourteenth Amendment.
The penalty provisions also illegally circumvent the letter
and spirit of the Federal Wage Garnishment Law by autho-
rizing garnishments of earned wages in excess of the limita-
tions allowed by that law.

The administrative judicial procedures under the Tay-
lor Law penalty provisions impair respect for the judiciary
of New York State. The courts of New York State in
Article 78 appeals are put into the position of acting as
“silent partners” in the overt violation of the Due Process
Clause of the Fourteenth Amendment by boards of eduea-
tion in the adjudication process and in the violation of the
limitations of the Federal Wage Garnishment Law. No
court of New York State would directly order the execution
of a garnishment which deprived an individual of almost all
of his income for a period of time, and yet the courts of
New York State have condoned the execution of such at-
tachments by boards of education. The New York State
courts remain virtually trapped in a situation in which,
when they affirm the administrative proceedings of a board
of edueation, they simultaneously, ex post facto, approve
of what are generally excessive and illegal garnishments.

The Federal Wage Garnishment Law is not limited to
commercial transactions and is fully applicable to the
garnishment of wages for the payment of penalties. If the
Federal Wage Garnishment Law were restricted to commer-
cial transactions there would have been no need for the
Law to indicate the three categories, all government im-

24

posed, which are exempt. The exempt categories are court
orders for the support of a person, bankruptcy court orders,
and debts due for any State or Federal Taxes. All of the
deductions in these three categories are conducted in a man-
ner which affords Constitutional Due Process and affords
specific protections to the individual’s earned wages. The
Taylor Law penalty provisions afford no protection what-
soever to the earned wages of an individual and the penalty
provisions do not fit into any of the exempt categories. The
deductions made under the Taylor Law, based on the ad-
judication of an incident prior to the earning of the wages
from which the penalties are deducted cannot be considered
the normal “deductions under law” such as income tax or
social security tax deductions which are based directly and
proportionally on the amount of the earned wages, and
which are not confiscatory. The Taylor Law deductions are
not based proportionally, are not directly related to the
earned income, and are an illegal attachment on future
earnings.

Thus duly earned wages for services fully rendered be-
come subject to garnishment for penalties invoked because
of an incident prior to the earning of these wages, and yet
the wages remain outside constitutional protection in re-
gard to the summary adjudication procedures by the gov-
ernment employer, and the wages remain outside the pro-
tection of the limitations of the Federal Wage Garnishment
Law in regard to the excessive deductions which tend to be
the rule.

In Feinberg v. Board of Education of the City of New
York, 344 N.Y.S. 2d 618 (1973), affirmed 51 A.D.2d 548
(1976), the Supreme Court of New York State, County of
Kings, indicated that Court’s concern with excessive gar-
nishment from the wages of a government employee by a

25

government instrumentality which itself claimed the gar-
nished funds, because oi an overpayment through error of
summer vacation pay. The decision was also concerned with
the evasion of the “legal machinery for the enforcement of
claims against wages.” The Court found against the Board
of Edueation. In part the Decision stated, quoting from Jn
Matter of Jones (Peter Pan Products), affd. 14 N.Y. 2d 558,
248 N.Y.S. 2d 652:

“*Tt is not reasonably to be expected that a worker
is to continue to provide the necessities of life without
the benefit of any of the wages he earns, even though
the indebtedness upon which the wages are all taken
is entirely just and incurred through the fault or
neglect of the worker himself. No industrial society
tolerates the total deprivation of future earnings for
the collection of a debt; and all legal machinery for
the enforcement of claims against wages allows
some toleration for the minimal needs of the em-
ployee while he works off the debt.’”

The fact that the New York Taylor Law penalty provi-
sions authorize excessive deductions from earned wages in
overt violation of the letter and spirit of the Federal Wage
Garnishment Law serves to support the contention of the
petitioner that the penalty provisions, in their entirety, are
outside the realm of constitutionality. To the violation of
the Due Process Clause of the Fourteenth Amendment
because of the administrative judicial proceedings by par-
ties with a vested pecuniary interest, must be added viola-
tions of the Fourth Amendment because of the deprivation
of property in the form of earned wages without a lawful
court garnishment order, and of the Eighth Amendment
because of the cruel excessive attachments executed in
violation of the Federal Wage Garnishment Law.

26

2. Tax Deductions and Payments

Garnishments, legally, are within the realm of the courts.
Any deviation from that requirement is violative of the
United States Constitution, especially in regard to the Due
Process Clause of the Fourteenth Amendment. Such devia-
tions under the New York State Taylor Law penalty pro-
visions, the Amendments of 1969, have not only resulted in a
violation of the Federal Wage Garnishment Law because of
excessive and cruel attachments of earned wages, but other
Federal laws have been violated. Internal Revenue and
Social Security Laws have been circumvented. The Plain-
view-Old Bethpage School District, and perhaps other
school districts, did not credit employees with their full
gross earnings before making deductions under the Taylor
Law penalty provisions. The School District interpreted
Section 210.2(g¢) of the Taylor Law penalty provisions as
authorizing deductions to be made as a forfeiture of salary.
In this manner, not only was the Federal Wage Garnish-
ment Law circumvented, but Federal income taxes and
Social Security taxes, whether due from the employee or
employer, were not paid. Even in school distriets which did
credit the true gross earnings of employees and made the
proper tax payments, there has been a universal disregard
for the garnishment limitations imposed by the Federal
Wage Garnishment Law.

It is impossible to determine how many thousands or
millions of dollars in income and Social Security taxes have
been lost in total by the Federal government. It is not
entirely strange that the unconstitutional Taylor Law pen-
alty provisions have had a multitude of illegal ramifiea-
tions in other areas.

Thus the Taylor Law penalty provisions allow persons
with pecuniary interest to make determinations of guilt or
innocence as to violations of the New York State Taylor
Law, and allows the same parties to make deductions from

oO?

earned wages without a prior impartial hearing and in
violation of the limitations of the Federal Wage Garnish-
ment Law. In addition the Taylor Law penalty provisions
(Amendments of 1969) place an unfair and extraordinary
burden on the collective bargaining process by offering to
school districts free unpaid labor if no collective bargaining
agreement is reached and a work stoppage does oceur, The
advance knowledge by agents of a board of education that
they will “hold court” in the first instance of finality ean
also affect the collective bargaining process so that a con-
tractual agreement would not be signed and a work stop-
page might more likely oceur,

On their face and as applied the Taylor Law penalty
provisions are repugnant to the United States Constitution.

If the 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 remand the matter to the United States District
Court for the Eastern District of New York for a plenary
hearing as requested in Point I.

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 Boulevard
Forest Hills, New York 11375
Tel. No, 212-261-8578

APPENDICES

— \

la

APPENDIX |
UNITED STATES DISTRICT COURT

Eastern District or New York

,%
4

Harvey S. Korwnit,

Plaintiff,
v.

Boarp or Epucation, PLarnview-O_p Betupace
Scnoot District, New York,
Defendant.

&
vv

No. 75 Civ. 518
Decided July 22, 1975

Harvey S. Kornirt,
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.

Za
Appendix I

Facts

Plaintiff, a social studies teacher employed by the de-
fendant Board of Education, sues to recover $379.84 de-
dueted 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 Edueation 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
that 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 faets 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
Appendix 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 vy. 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)(8) 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 vy. 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 vy. Winn Parish School
Board, 377 F. Supp. 816 (W.D. La. 1974).

4a
Appendix I

This cireuit has not dealt directly with the issue. Newman

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

U.S. , 95 S.Ct. 1447 (1975); Lombard v. Board of
Education, 502 F.2d 631 (2d Cir, 1974), cert. denied,
U.S. , 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
ease by 28 U.S.C. § 1331, sinee 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 ease
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 Edueation 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.
Appendix 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.

6a

APPENDIX II
UNITED STATES DISTRICT COURT
Eastern Districr or New York

+

Harvey S. Kornir,
Plaintiff,
—against—

Boarp or Epucatrion,
PLainview-OLp BetruopacGe Scuoon District,
Piarnview, New York,
Defendant.

,
v

No. 75 Civ. 518
May 11, 1976

Appearances :
Harvey S. Kornit
Plaintiff, pro se

JosepH W. CaMPANELLA, Esa.
CGrecory J. Guercio, Esa.
Attorneys for Defendant

The Late HonorasLe 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
Appendix 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 general 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 OnpERED that the motion to amend the title be denied.

8a

APPENDIX III
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

&
vv

Harvey S. Kornirt,
Appellant,

V.

Boarp or Epvcation,
Puainvirw-Otp Berapace Scuoou District,
Piatnview, New York,
Appellee.

Before:

MansrFig_p, Oakes and GurRFEIN,
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
Appendia III

Judgment vacated; cause remanded with instructions to
dismiss for lack of jurisdiction.

Harvey 8. 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 school 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) (MeKinney 1973).'| Appellant contends

1 Strikes by public employees are expressly unlawful under N.Y.
Civil Service Law 310(1) (McKinney 1973). Illegal strikers
are subject to penalties, including loss of tenure. Jd. § 210(2)
(f), as well as payroll deductions, /d. § 201 (2)(g) (sic). The
determination hen 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. /d. In the present case, appellant's
notice of objections raised no claim of fact which “would establish
that the employee did not violate (the no-strike law)” Jd.
Therefore, a hearing was not accorded appellant.

10a
Appendix 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 garnisument which he claims cannot be consti-
tutionally imposed without a plenary court proceeding. See
e.g. Sniadach v. Family Finance 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. § 1348(3).
The district court, the Jate 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. § 1843(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
Appendix III

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).

8 As a pro se pleading the complaint is to be read liberally.
Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). We mance
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.

12a | 13a
APPENDIX IV | APPENDIX V
UNITED STATES COURT OF APPEALS | UNITED STATES DISTRICT COURT

For Tue Seconp Circvir Eastern District or New York

a

Harvey S. Kornir,

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.

Plaintiff,”
v.

Boarp oF Epvucation PLatnview-O_p BETHPAGE

‘ Scuoot District New York,
Harvey S. Kornyir, Defendant.
Appellant, ¢
v. No. 75-C-518
Boarp oF Epucation oF PLainvigw-OLp BETHPAGE
Scuoo. District,
Appellee.
. Order
75-7540 Sept. 15, 1977
A motion having been made herein by Appellant pro se Costantino, D.J.
for rehearing mPa
Upon consideration thereof, it is Region eney: gaye of meg eae ore this case,
Ordered that said motion be and it hereby is Denizp. ‘ a action ss hereby dismissed tor lack of subject matter
jurisdiction. So ordered.
Signatu
acne wh. Signature
Walt R. Mansfi ld, US. J. pe ee ae inet ry. va ek on dat Saree wee eee
alter ansfie C USD.
Signature

we ee ie ee Ue A ee a oe ee oe oe a ee i ee me |

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

Signature

Murray I. Gurfein, Cireuit Judges

l4a

APPENDIX VI

MEMORANDUM DECISION AND ORDER
SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK
Washington, D.C. 20543

June 26, 1978
Harvey 8S. Kornit
70-25 Yellowstone Boulevard
Forest Hills, N.Y. 11375

Re: Harvey S. Kornit
v. Boarb oF Epucation OF PLAINVIEW-
Op BetrupaGe Scuoor Disrrict,
Plainview, New York
No. 77-532
Dear Mr. Kornit:

The Court today entered the following order in the above-
entitled case:

The petition for a writ of certiorari is granted. The judg-
ment is vacated and the case is remanded to the United
States Court of Appeals for the Second Circuit for further
consideration in light of Monell v. Dept. of Social Services
of the City of New York, 436 U.S. (1978).

Very truly yours,
MicHak Ropak, Jr., Clerk

By /s/ Epwarp FaincLoTa
Assistant Clerk

l5a

APPENDIX VII
UNITED STATES COURT OF APPEALS

Seconp Circuit

eee ee ee ee

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

Present:
Hon. Water R. MansFievp
Hon. James L. Oakes
Hon. Murray I. Gurrein
Circuit Judges.

&
v

Harvey S. Kornir,
Plaintiff-Appellant,

V.

a

Boarp oF Epvucation, PLainview-OLp BETHPAGE
Scuoot District, PLainview, New York,

Defendant-Appellee.

a
od

Filed July 28, 1978
75-7540

The action herein having been taken to the Supreme Court
of the United States by writ of certiorari and a certified
copy of the judgment and a copy of the opinion of the said
court having been received and filed, vacating the judgment

16a
Appendiz VII

of this court with costs and remanding the said action to
this court for further consideration in light of Monell v.
Dep't. of Social Services of the City of New York, 436
US — (1978) and providing that the appellant, Harvey S.
Kornit, recover from the appellee, Board of Education,
Plainview Old Bethpage School District, Plainview, New
York, One Hundred Dollars ($100.00) for his costs therein
expended

Upon consideration thereof, it is

Ordered that the judgment of this court of September 15,
1976, and the mandate issued thereunder be and they hereby
are vacated and that Harvey S. Kornit shall recover from
the Board of Education, Plainview Old Bethpage School
District, Plainview, New York, One Hundred Dollars
($100.00) for his costs in the Supreme Court of the United
States.

A. Dante. Fusaro,
Clerk

By: /s/ Arthur Heller
ArTHUR HELLER,
Deputy Clerk

l7a

APPENDIX VIII
UNITED STATES COURT OF APPEALS

FOR THE
Seconp Crrcuit

At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Courthouse
in the City of New York, on the fourth day of October one
thousand nine hundred and seventy-eight.

Present:

HonoraBLeE Water R. MANSFIELD,

HonoraB_e JAMES L. Oakes,

HonorasLe Murray I. Gurren,
Circuit Judges.

a
-

Harvey S. Kornit,
Appellant,
—against—

Boarp oF Epucation, Plainview-Old Bethpage
School District, Plainview, New York,

Appellee.

a
.

Filed Oct. 4, 1978
Dkt. No, 75-7540

The action herein having been taken to the Supreme
Court of the United States by writ of certiorari and a certi-

18a
Appendia VIII

fied copy of the judgment and copies of the opinion of the
said court having been received and filed vacating the judg-
memt of this court and remanding the said action to this
court for further consideration in light of Monell v. New
York City Dept. of Social Services, — U.S. —, 46 U.S.L.W.
4569 (June 6, 1978),

~ Upon consideration thereof, it is,

OrpERED, that the judgment of this court of September 15,
1976, be and it hereby is vacated; and it is

FURTHER ORDERED, that the judgment of the district court
dismissing the complaint be and it hereby is affirmed, sub-
stantially for the reasons stated by the late Judge Orrin
G. Judd, beginning at page 5, paragraph 4 of his Memoran-
dum and Order dated July 22, 1975. The school officials
involved did not have a sufficient pecuniary interest to dis-
qualify them. See Hortonville Joint School District No. 1,
et al. v. Hortonville Education Assn., et al., 426 U.S. 482,
491-92 (1976). The procedure provided by N.Y. Civil
Service Law § 210 does not amount to a garnishment with-
out hearing or court order in violation of Sniadach v.
Family Finance Corp., 395 U.S. 337 (1969).

Signature

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

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

6666 OS. FOS 2 EAE EDP OD Bee ee 8 88 6 ee

Murray I. Gurfein, U.S.C.J.

oe rt ieee en

ee ee

19a

APPENDIX IX
UNITED STATES COURT OF APPEALS

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 fourteenth
day of November, one thousand nine hundred and seventy-
eight.

Present:
Hon. Water R. MansFIe.tp
Hon. James L. Oakes
Hon. Murray I. Gurren
Circuit Judges.

a
vv

Harvey S. Kornir,
a! laintiff-Appellant,

vs.

Boarp oF Epvucation, Putainview-OLtp BEetTHPAGE
Scnoou District PLarnview, New York,

Defendants-Appellees.

Filed Nov. 14, 1978
Docket No. 75-7540

A petition for a rehearing having been filed herein by
the plaintiff-appellant, pro se

Upon consideration thereof, it is
Ordered that said petition be and hereby is denied.

/8/ A. Daniel Fusaro
A. Daniev Fusaro
Clerk

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2320%3A1. Public record. Not legal advice.