Opposition — Resetar v. State Board of Education

78-1826

IN THE

Supreme Court of the United States

OCTOBER ‘TERM, 1978

No. 78-1876

JOHN RESETAR, JR.,

Petitioner,

THE STATE BOARD OF EDUCATION

OF MARYLAND, Et AL.,

Respondents.

BRIEF IN OPPOSITION OF RESPONDENT

THE STATE BOARD OF EDUCATION OF MARYLAND

STEPHEN H. SAcus,

Attorney General

of Maryland,

DAavip H. FELDMAN,

Assistant Attorney General,

Chief of Litigation,

THOMAS E. PLANK,

Assistant Attorney General,

1400 One South Calvert Street,

Baltimore, Maryland 21202,

(301) 383-3737

Attorneys for Respondent

The State Board of Educatic.a

of Maryland.

September 5, 1979

The Daily Record Co., Baltimore, Md. 21202 > ee

TABLE OF CONTENTS

STATEMENT OF THE CASE .t...cccccococeccoscccceccoccsscccccces

REASONS FOR DENYING THE WRIT oecccccccccccccccceeese

I. The Questions Presented by the Peti-

tioner Were Neither Presented to Nor

Decided by the Court of Appeals. .........

II. The Questions Presented Are Not Sub-

stantial Federal Questions That This

Court Should Review ...............cccccceeeeeeees

fen amet tet ANIONS, oO lle Me Neg mr Damenlc Ne a AR

TABLE OF CITATIONS

Cases

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

Board of Education of Charles County v.

Crawford, 284 Md. 245, 393 A.2d 835 (1979)

Cardinale v. Louisiana, 394 U.S 437 (1969) ......

Carey v. Piphus, 435 U.S. 247 (1978) .................

Givhan v. Western Line Consolidated School

District, _.. US. _..., 68 L. Ed. 2d 619

CEIPRIOR Gidetontinnssin ES Vass e WOMENUPN Lae tem Ce PRC SaaS

Lavine v. Milne, 424 U.S. 577 (1976) ..............000-

Mathews v. Eldridge, 424 U.S. 319 (1976) ..........

Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977) ......

Opp Cotton Mills, Inc. v. Administrator, 312 U.S.

PED fisahiclh a bdenes Cia ecaccyana soca sia tani dbs tebies

Resetar v. State Board of Education of Mary-

land, 284 Md. 537, 399 A.2d 225 (1979) .......

PAGE

1

ii

oa PAGE

Constitutional and Statutory Provisions

Constitution of the United States:

First Amendment ...............cccccceceeesssseceeeeeeseeees passim

Pn I eo a sss uihubawthacgumeiiane passim

Fourteenth Amendment ............ccccccccccecseeeeeeeees passim

United States Code:

OR a RTE CRUD cc ciccssnenosecsinsdivedccsnctesas 5

Annotated Code of Maryland:

OE FE Fate BU RI eickeidcckvnddahanntsinthcorsaupecns 4,11

Rules

Supreme Court Rule 23(f) ...................ccccsssssssceesseees 5

III: RI ea )

—_—

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No. 78-1876

JOHN RESETAR, JR..,

Petitioner,

Vv.

THE STATE BOARD OF EDUCATION

OF MARYLAND, ET AL.,

Respondents.

BRIEF IN OPPOSITION OF RESPONDENT

THE STATE BOARD OF EDUCATION OF MARYLAND

Respondent, The State Board of Education of Mary-

land (the “State Board’’), respectfully requests that this

Court deny the petition for writ of certiorari seeking

review of the opinion and judgment of the Court of

Appeals of Maryland in this case. The court’s opinion is

reported as Resetar v. State Board of Education of

Maryland, 284 Md. 537, 399 A.2d 225 (1979).

STATEMENT OF THE CASE

The petitioner seeks review of the decision of the

Court of Appeals of Maryland upholding the petition-

er’s dismissal from employment as a teacher by the

Board of Education of Montgomery County (the

“County Board”) and the State Board. The dismissal

stemmed from three incidents of intemperate conduct

2

by the petitioner. The first incident occurred on

November 15, 1972, when the petitioner called a

guidance counselor a “God damned liar” (pet. app. 35a).

The second incident in February 1973 involved remarks

by the petitioner to a black student about her cleanli-

ness (pet. app. 35a-36a). In the third incident on June

18, 1974, the petitioner responded to some remarks

made to him by certain black students with the

comment: “Look at those jungle bunnies. Somebody

ought to feed them bananas.” After a number of

students complained about this remark, the Superin-

tendent of Schools of Montgomery County notified the

petitioner by a letter dated September 16, 1974, that he

would recommend to the County Board that the

petitioner be dismissed for misconduct in office,

effective October 11, 1974.

The petitioner requested a hearing, and the County

Board referred the matter to a hearing examiner, who

held hearings on December 18 and 30, 1974. After

evaluating the testimony of seventeen witnesses, as

well as sixteen exhibits, the hearing examiner found

that each incident was misconduct, that the “jungle

bunnies” comment was the most serious incident, that

none of these episodes standing alone warranted

dismissal, but that the three incidents showed a

persistent pattern of intemperate outbursts, of which

the petitioner had been officially warned. Accordingly,

in a report issued February 25, 1975, the hearing

examiner recommended that the petitioner be dismissed

for misconduct in office.

The petitioner requested a hearing before the County

Board, which was held on April 10. On April 14, the

County Board adopted the findings and recommenda-

tions of its hearing examiner and ordered the petition-

er’s dismissal. However, because it was unable to render

its decision within thirty days of the receipt of the

hearing examiner’s recommendation, it ordered that the

petitioner be restored to pay for the period of March 27 .

to April 10, 1975.

3

The petitioner appealed to the State Board. The State

Board referred the matter to its own hearing examiner,

who conducted a de novo evidentiary hearing on July

28, 1975. Eleven witnesses testified at this hearing. The

examiner, after considering all of the evidence at the

hearing, including the transcript of the hearing before

the County Board’s hearing examiner, made the same

findings, conclusions, and recommendations as the

County Board’s hearing examiner. He also considered

and rejected the petitioner’s contention that the failure

of the County Board to issue an opinion within thirty

days of receiving the recommendation of its hearing

examiner deprived the County Board of the authority to

order his removal. Thus, the State Board’s hearing

examiner recommended that the State Board determine

that the petitioner was properly dismissed. On No-

vember 24, 1975, the State Board adopted the findings,

conclusions, and recommendation of its hearing exa-

miner.

The petitioner filed an appeal to the Circuit Court for

Montgomery County on December 23, 1975. Two years

later, on December 30, 1977, the petitioner filed a

motion for leave to present additional evidence. The

circuit court denied this motion on January 31, 1978,

and affirmed the petitioner’s dismissal on February 23.

The petitioner appealed to the Court of Special Appeals

of Maryland and, before oral argument in that court,

the Court of Appeals of Maryland issued a writ of ~

certiorari on its own initiative and heard oral argument

on the briefs that had been filed in the court of special

appeals.

The court of appeals issued its decision on March 8,

1979. In this decision, the court considered all of the

issues presented to it by the petitioner and held (1) that

the County Board did not lose the power to dismiss the

petitioner because it issued its decision ordering

dismissal more than thirty days after receiving the

recommendations of its hearing examiner, instead of

4

within thirty days as provided by its rules; (2) that the

circuit court properly refused to allow the petitioner to

present additional evidence when the petitioner did not

show that the additional evidence was material and

that the petitioner had good reasons for failing to pre-

sent the additional evidence to the County and State

Boards; (3) that the petitioner’s conduct amounted to

misconduct within the meaning of section 114 of article

77 of the Annotated Code of Maryland (1975) [now

codified as Md. Educ. Code Ann. § 6-202 (1978)]; and (4)

that there was substantial evidence to support the

conclusions of the County and State Boards that the

petitioner should be dismissed.

REASONS FOR DENYING THE WRIT

The petitioner presents to this Court three questions.

First, he alleges that the findings of the State Board

and the decision to dismiss him were arbitrary and

capricious and that the reasons for the dismissal were

not sufficient cause within the meaning of section 114

of article 77 of the Maryland Code. Therefore, he says,

his dismissal violates his due process rights under the

fifth and fourteenth amendments of the United States

Constitution. Second, he argues that the failure of the

County Board to issue its decision within thirty days of

receiving the recommendations of its hearing examiner

violated his rights to due process, even though the

County Board reinstated the petitioner for fifteen days

as compensation for the delay. Finally, the petitioner

argues that he was dismissed because of the exercise of

his right of free speech guaranteed by the first

amendment to the United States Constitution.

%

This Court should deny the petition for writ of

certiorari. None of the questions presented in the

petition were properly presented to the court of appeals

for decision, and thus the court of appeals did not issue

a decision on any of these questions. Moreover, even if

the issues had been properly raised and decided below,

they are not substantia! federal questions that this

Court should address.

5

:

THE QUESTIONS PRESENTED BY THE PETITIONER WERE

NEITHER PRESENTED TO NOR DECIDED BY THE COURT OF

APPEALS.

The Court’s jurisdiction to entertain this petition for

writ of certiorari rests upon 25 U.S.C. § 1257(3) (1976),

which states:

Final judgments or decrees rendered by the

highest court of a State in which a decision could

fr som may be reviewed by the Supreme Court as

ollows:

_(3) By writ of certiorari, . .. where any title,

right, privilege or immunity is specially set up or

Pree samg under the Constitution . . . [of] the United

tates.

It is well settled that this Court will not grant a writ

of certiorari if the questions presented by the petition

have not been presented to or decided by the appro-

priate state court. Cardinale v. Louisiana, 394 U.S. 437,

438-39 (1969). Indeed, Supreme Court Rule 23(f) requires

the petitioner in his statement of the case to specify the

stage in the state court proceedings at which the federal

questions sought to be reviewed were raised, the method

by which they were raised, and the way in which they

were passed upon by the court. In addition, the rule

requires the petitioner to support these statements

either with pertinent quotations of specific portions of

the record or with appropriate summaries of the record

and specific references to the record. This must be done

in order to show that the federal questions were timely

and properly raised in the state court and therefore that

the Court has jurisdiction to review the judgment of the

state court on writ of certiorari.

In this case, the petitioner has not complied with this

rule. His failure is inevitable because the federal

questions were not presented to or decided by the Court

of Appeals of Maryland. The court of appeals sets forth

6

in its decision the contentions that the petitioner made

in that court:

In this Court Resetar contends: (1) the circuit

court erred in refusing to permit him to present

additional evidence; (2) it likewise erred in “finding

and determining that there was sufficient evidence

to warrant [his] dismissal. . . as a tenured teacher

in the Montgomery County school system”; (3)

“(t]he alleged statement attributed to (Resetar]

involving a statement of racial connotation did not

constitute an act of misconduct” warranting his

dismissal; and (4) the County Board “was pre-

cluded from dismissing [him] for misconduct in

office after reinstating him as a tenured teacher in

the school system for the period of March 27 to

April 10, 1975.”

284 Md. at 546, 399 A.2d at 230 (pet. app. at 10a). These

issues involve matters of state law only. They do not

contain even a hint of any federal due process or first

amendment violations. Significantly, there is nothing

either in the opinion of the court of appeals or in the

dissent by Judge Orth and Chief Judge Murphy that

discusses or even mentions any of the contentions that

the petitioner now raises.

The court’s characterization of the issues is an

accurate reflection of the questions presented by the

petitioner’s brief to it. Petitioner’s brief at 10. Indeed,

the only places in which the words “due process”

appear in the petitioner’s brief are in the petitioner’s

first argument that the circuit court erred in not

allowing the petitioner to present additional evidence in

the circuit court proceedings. The petitioner’s brief

states at 17:

To support [petitioner’s] position in this respect

and even bearing on the legal question of “due

process” in this case before the administrative

agencies [petitioner] sought to prove to the trial

Court below through some of the witnesses he

subpoenaed, and by new evidence and additional

7

evidence all material to these issues, that the so-

called “jungle bunnies incident” was not as serious

and/or aggravated as the [respondents] found and

made the same out to be in this cause; and

[petitioner] submits that if the trial Court below

had given him the opportunity to submit the new

and additional material evidence the same would

have, indeed, diluted the nature of said charge of

misconduct and the degree of its manifest mean-

ing.

The petitioner’s brief also states at 21:

[Petitioner] submits that the Court had a duty and

obligation to receive additional material evidence

. . . since he, as a tenured teacher, had and has a

property right in his teaching position in the

Montgomery County school system. Accordingly,

he cannot be denied his property right, nor can he

be dismissed from his position as a tenured teacher

without due process in accordance with law. In the

case at bar here the dismissal of [petitioner]

teacher was not in accordance with due process of

law as required and provided by the Constitution of

the United States of America and the Constitution

of the State of Maryland. A valuable property right

cannot be denied a person without due process.

None of these vague and general references in his

brief constitute the proper presentation to the court of

appeals of the issues that the petitioner now attempts to

bring to this Court. Nowhere in the petitioner’s brief did

he present an argument that, notwithstanding four

separate administrative proceedings and the review of

those proceedings by the Circuit Court for Montgomery

County, he was deprived of due process because he

believes that the decisions of the State and County

Boards were arbitrary and capricious and unsupported

by substantial evidence. Nowhere in the brief did the

petitioner argue that the delay in the issuance of the

County Board’s decision to dismiss him, for which he

received fifteen days of retroactive back pay, deprived

him of due process. Finally, nowhere in his brief appear

8

the words “first amendment” or “right of free speech”

or any argument that he was dismissed because of the

exercise of his first amendment rights.

As to the allegations of infringement of his right of

free speech, the petitioner makes this argument for the

first time in his petition to this Court. His petition for

appeal to the Circuit Court for Montgomery County

contained only the vaguest allegations of the violation

of petitioner’s ccnstitutional rights to due process:

_8. Plaintiff respectfully submits that his substan-

tial rights have been affected, prejudiced and

denied to him and says that in the proceedings set

forth in paragraphs 1 through 7 of this, his Petition

of Appeal, that the administrative findings, infer-

ences, conclusions and decisions culminating in his

dismissal as a tenured teacher were in violation of

his basic constitutional rights under the Constitu-

tion of the State of Maryland and the Constitution

of the United States of America. That plaintiff has

been prejudiced and removed from office as a

tenured teacher in violation of his rights to due

process in this matter.

10. Plaintiff respectfully submits that his sub-

stantial rights were affected, and that he was

denied due process by unlawful procedure made

and indulged in by the defendant, the Board of

Education of Montgomery County, Maryland,

which was esa pe pene Mins by The State

Board of Education of Maryland’s ratification of

the unlawful procedures made and indulged in by

the Board of Education of Montgomery County,

Maryland.

Petition of apveal, paragraphs 8 & 10 (Cir. Ct.

Montgomery Co., filed Dec. 23, 1975). The other

paragraphs of the petition for appeal allege that the

dismissal of the petitioner was in excess of the County

and State Boards’ statutory authority and jurisdiction,

was contrary to law, and was unsupported by substan-

tial evidence.

9

Nowhere did the petitioner make any allegation that

he was being deprived of his constitutional right of free

speech. Therefore, even though the petitioner may have

been able to raise the due process questions in the court

of appeals if he had desired to do so, he could not have

raised the free speech issue in the court of appeals. See

Maryland Rule 885 (providing that the court of appeals

“will not ordinarily decide any point or question which

does not plainly appear by the record to have been tried

and decided by the circuit court” but that, when a

question of law had been presented to the circuit court

and the decision on that question by the court of

appeals is necessary or desirable, the court of appeals

may decide the question even though it was not decided

below).

In conclusion, the court of appeals did not decide any

of the questions presented to this Court, for the simple

reason that the petitioner never properly presented

those questions to the court of appeals. Thus, the

petitioner for a writ of certiorari should be denied.

Il.

THE QUESTIONS PRESENTED ARE NOT SUBSTANTIAL FED-

ERAL QUESTIONS THAT THIS COURT SHOULD REVIEW.

Petitioner’s Due Process Claims

The petitioner makes two arguments that the County

and State Boards deprived him of due process when

they ordered his dismissal. First, he alleges that the

decisions of the County and State Boards were

arbitrary and capricious because they were not sup-

ported by substantial evidence and because the intem-

' perate outburts for which he was discharged do not in

law amount to misconduct. Second, he argues that the

failure of the County Board to issue its decision within

thirty days of receiving the hearing examiner’s recom-

mendations deprived him of due process.

Both of these arguments are frivolous. The petitioner

had two full evidentiary hearings to determine whether

10

he should be dismissed from employment with the

Montgomery County school system—a hearing before

the County Board’s hearing examiner which involved

the testimony of seventeen witnesses and sixteen

exhibits, and a de novo hearing before the State Board’s

hearing examiner, who heard the testimony of eleven

witnesses in addition to reviewing the full transcript of

the proceedings before the County Board’s hearing

examiner. The petitioner had an opportunity to present

argument to the County Board, which he took advan-

tage of, and he had a complete review of the administra-

tive proceedings by the circuit court and by the court of

appeals. Four separate administrative officials and

agencies and two judicial tribunals have found that the

incidents of intemperate conduct by the petitioner

warranted his dismissal or that there was substantial

evidence to support his dismissal. The petitioner has

had an overabundance of “the opportunity to be heard

at a meaningful time and in a meaningful manner”,

Mathews v. Eldridge, 424 U.S. 319, 333 (1976), and thus

has not been deprived of due process.

Furthermore, the argument that the alleged arbitrari-

ness of the State and County Boards’ decisions violated

the petitioner’s rights of due process does not present

any new or significant federal question. Indeed, this

Court held in Bishop v. Wood, 426 U.S. 341, 349-50

(1976), that a federal court is not the appropriate forum

in which to review the many personnel decisions made

by public agencies and that the due process clause of

the fourteenth amendment is not a guarantee against

incorrect or ill-advised personnel decisions taken by

public agencies. See also Lavine v. Milne, 424 U.S. 577,

587 (1976) (“The [due process clause of the] Fourteenth

Amendment does not guarantee that all decisions by

state officials will be correct... .’’).

Moreover, it certainly cannot be argued that there is

no rational basis for the County and State Boards’

findings that an individual who has engaged in a

substantial pattern of intemperate conduct is not fit to

11

be a teacher in a public school. Thus, the determination

of the County and State Boards that the pattern of

intemperate conduct of the petitioner was misconduct

within the meaning of article 77, section 114 of the

Maryland Code does not present any significant

question of the interpretation of the due process clause.

The claim that the petitioner was denied due process

because of the County Board’s delay in issuing its

opinion is also clearly frivolous. The petitioner cannot

claim a due process right to having a decision by the

County Board within thirty days of its receiving the

findings and recommendations of its hearing examiner.

The process due the petitioner was that specified by

state law, i.e., the regulation of the County Board. The

court of appeals construed the regulation’s thirty day

requirement to be directory, not mandatory. Thus, the

petitioner was not denied any process that he was due

when the County Board did not issue its decision within

thirty days.

More importantly, the delay had no bearing on the

finding that the petitioner was guilty of misconduct.

See Carey v. Piphus, 435 U.S. 247, 260 (1978); Board of

Education of Charles County v. Crawford, 284 Md. 245,

395 A.2d 835 (1979). Moreover, any defect in the

procedure was cured by the full de novo evidentiary

hearing before the State Board’s hearing examiner. Opp

Cotton Mills, Inc. v. Administrator, 312 U.S. 126 (1941);

Board of Education of Charles County v. Crawford, 284

Md. at 253-55, 395 A.2d at 838-42. Finally, the petitioner

suffered no deprivation of a property interest and no

prejudice because of the County Board’s delay. The

County Boar? reinstated the petitioner for a fifteen-day

period to account for the delay in its decision, and thus

any deprivation caused by the delay was cured.

Petitioner's First Amendment Claim

The record in this case clearly establishes that the

petitioner was not dismissed because of his reference to

certain black students as “jungle bunnies”. He was

12

dismissed because he exhibited a pattern of intemperate

conduct, as demonstrated by three separate outbursts.

Thus, although the use of the expression “jungle

bunnies” was the most serious of these intemperate

outbursts, the County Board’s hearing examiner specifi-

cally found that this one outburst alone would not be

enough to warrant dismissal. Hence, even if the

petitioner had preserved the first amendment issue for

review by this Court, his case does not present a clear

issue of whether the dismissal of a public school teacher

for uttering racial epithets infringes his or her first

amendment right of free speech. See Givhan v. Western

Line Consolidated School District, __. U.S. —__, 58 L.

Ed. 2d 619 (1979); Mt. Healthy City School District

Board of Education v. Doyle, 429 U.S. 274 (1977).

If the petitioner had made this argument to the

County or State Boards, they could have made specific

findings of whether the other two incidents were

sufficient to warrant his dismissal. If the County or

State Boards had determined that the two incidents

were not sufficient to warrant dismissal, and that the

petitioner in effect was dismissed because of the “jungle

bunnies” incident, then the case may have presented

the conflict between the petitioner’s choice of words and

the legitimate interests of the County and State Boards

that its public school teachers refrain from making

racially derogatory and inflammatory remarks. Sim-

ilarly, if the petitioner had made this argument to the

circuit court and to the court of appeals, those courts

would have considered and decided the issue. Because

the petitioner did not present this argument either to

the agencies involved or to the Maryland courts, this

Court does not have the benefit of a proper record upon

which to decide the issue and does not have the benefit

of the views of the State courts. Consequently, the first

amendment issue now presented by the petitioner is not

a substantial federal question that this Court need or

should address.

13

CONCLUSION

For these reasons, this Court should deny the petition

for a writ of certiorari.

Respectfully submitted,

STEPHEN H. SACHS,

Attorney General

of Maryland,

Davip H. FELDMAN,

Assistant Attorney General,

Chief of Litigation,

THOMAS E. PLANK,

Assistant Attorney General,

1400 One South Calvert Street,

Baltimore, Maryland 21202,

(301) 383-3737

Attorneys for Respondent

The State Board of Education

of Maryland.

September 5, 1979