Jurisdictional Statement — Ginocchi v. Burrell School District

“a * Supreme Court, U.S,

FILé&

(1) Case Number: APR 15 1998

JOSEPH F. SPANIOL, JR.

CLERK

(2) SUPREME COURT OF THE UNITED STXTES

(3) Term: Oct. 1985

(4) Caption:

ANTHONY L. GINOCCHI, Appellant

BURRELL SCHOOL DISTRICT, Appellee

(Sa) On Appeal from the

(5b) Supreme Court of Pennsylvania

(6) JURISDICTIONAL STATEMENT

(7) Counsel of record for Appellant:

Name: Daniel A. Sullivan Jr.

P.O. Address: 150 Chaney Ct.

New Kensington, Pa. 15008

feleph. Nos.: (412) 337-2757, 335-8121

JURISDICTIONAL STATEMENT

(a) The questions presented by the appeai

Question 1.: Is there due process,

if a school board first passes a

resolution demoting an employee and then

gives the employee a hearing before it on

the correctness of the demotion?

Question 2.: Is 24 Purdon's

Statutes Sect. 11-1151 governing demotions

of a school's tenured professional

employees in Pennsylvania so vague as to

be unconstitutional?

{

(b) List of all parties in the lower court

The parties in the lower court were

Anthony L. Ginocchi, the appellant here,

and Burrell School District, the appellee

here. In view of the constitutional

questions, LeRoy S. Zimmerman, Esq.,

Attorney General, Commonwealth of

Pennsylvania, was given notice of the

proceedings.

(cl) Table of contents

The questions

List of parties... ie om ak oe

Table of coutents .. ey met MO CY tas

List of authorities oo ae

Reference to reports

Grounds for jurisdiction

Constitutional and Statutory provisions

Statement of the case

Questions are Substantial ,

Question l. ,

Question 2. .... aT oe ee oa aa

Appendix ,

Order to be reviewed a eS es ke oe

Other statements ae a a oe ee

Board's resolution

Hearing

Secretary of Education , ,..,

Commonwealth Court to

Decree appealed from

Copy of notice of appeal

Connelly v. General Construction ; 15

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Gisaccio v. Penasylwani@g . . « «<> ee be

Grayaeé vw. City of Rockford .«-«'s « 2 «2 36

[n re lurchison ° ° . ° . ° ° ° ° ° ° ° 1]

Lomas v. School District Ne ee ee ee ey

NLRB v. Phelps — s @ ww w- sl leetee eo eee

spruce Billi v. BFYROF « « «2%. 4-4 OS ee

Amendment 5, U.S. Constitution ae ee

Amendment 14, U.S. Constitution .... 6

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44 Fo. BOCt. Tietze « & 3 eee

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(d) Reference to reports

fo the best of counsel's knowledge

none of the opinions in the courts or

administrative bodies below have been

reported in either official or unofficial

(e) rounds tor jurisdiction

j Chi lS an appeal from the

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wit i. j t pi Let > Oo! Law — i =

rie Case i] Oo involves oection oh

I { f rennSyivania Prubli chool Code ; 24

ect ilo1, readin in pertinent

lere hall be no demotion

fr any profs Lonal employes

| 1¢308, except as otherwise

prcevided in thi act, without

t CO ent oj the f mployee,

—.a Si uch consent is not

I elve » then uch demotion

of Chool directors and an

ippeal in the same manner as

ereinbefore provided in the

{ iSt Tf t rie ij issal] of da

profs. ional employee.

e€ reference to dismissal involves

f t Li lL] a AP ind 1129 j

w .

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f LOT ere rroceqaure On

J l 11S; Uharges; Noti FF

eari 7 belore ny

Drotle LOnNai f iployes having

attained a status of permanent

tenure is dismissed by the

board of school directors,

such board of school directors

shall furnish such

professional employee with a

detailed written statement of

the charges upon which his or

her proposed dismissal is

based and shali conduct a

hearing. A written notice

Signed by the president and

attested by the secretary of

the board of school directors

shall be forwarded by

registered mail to the

protessional employee setting

forth the time and place when

and where such professional

employee will be given an

opportunity to be heard either

in person or by counsel, or

both, before the board of

school directors and setting

forth a detailed statement of

the charges. Such hearing

shall not be sooner than ten

(10) days nor later than

fifteen (15) days after such

written notice. At such

hearing all testimony offered,

including that of complainants

and their witnesses, shail be

recorded by a competent

disinterested public

stenographer whose services

shall be furnished by the

school district at its

expense. Any such hearing may

be postponed, continued or

adjourned.

Section 1129. Vote Required

for Dismissals. After fully

hearing the charges or

complaints and hearing all

witnesses produced by the

board and the person against

whom the charges are pending,

and after full, impartial and

unbiased consideration

thereof, the board of school

directors shail by a two-

thirds vote of all the members

thereof, to be recorded by

roll call, determine whether

such charges or complaints

have been sustained and

whether the evidence

substantiates such charges and

complaints, and if so

determied shall discharge such

protessional employee. See

(g) Concise statement of the case

Appellant, Mr. A.L. Ginocchi, is,

and was in 1980, a permanently tenured

professional employee under contract with

the Burrell School District, Appellee.

Following a series of closed

meetings at which the demotion of Mr.

Ginocchi was discussed, the Board of the

Burrell School District passed without

discussion at a public meeting on July 14,

1980, a resolution demoting Mr. Ginocchi

from elementary school principal to

teacher. Mr. Ginocchi was not present at

the closed meetings; he was not invited,

nor was he ever given any notice that the

closed meetings were scheduled. Mr.

Ginocchi was given a hearing after the

July 14, 1980, vote. The hearing was held

on August 21, 1980, and Sept. 4, 1980,

before the Board. Following the hearing,

the Board voted to sustain the resolution

it had earlier passed on July 14, 1980.

Question 1. was raised as an objection

before the hearing; the objection was

denied. Both Questions 1. and 2, were

argued orally and by brief before the

Board. The legal advisor of the Board

stated that the Board lacked competence to

pass on these constitutional questions.

Mr. Ginocchi then brought an appeal

to the Secretary of Education. There,

both questions were presented. On

Question 1., the Secretary decided that

there were no due process difficulties

with what had transpired. The Secretary

pointed to other decisions where similar

facts had been found not to violate due

process and indicated that school boards

must take positions on demotions prior to

hearings. On Question 2., the Secretary

stated he lacked authority to decide the

issue.

Subsequently, Questions 1. and 2.

were brought to the Commonwealth Court of

Pennsylvania. The Commonwealth Court

denied relief on Question 1., stating that

the Board's prior knowledge did not mean

Mr. Ginocchi could not get a fair hearing.

The Court also denied relief on Question

2., stating that the Schocl Code is

specific as to how demotions or

Suspensions are to be handled.

10

The Supreme Court of Pennsylvania

was then asked to consider Questions l.

and 2., but it refused to allow an appeal.

(h) Statement of the reasons why the

questions are substantial

(hl) Question 1.

At the heart of any due process

hearing is the requirement of an impartial

decision-maker. In re Murchison, 349 U.S,

133, 75 S.Ct. 623, 99 L.Ed. 942 (2955).

Here, the Board first passed a

resolution demoting Mr. Ginocchi and then

subsequently sat in judgement on the

correctness of the demotion in the hearing

which it gave Mr. Ginocchi. This

represents a grievous violation of Mr.

Ginocchi's due process rights. Having

taken a position in favor of the demotion,

the Board was hardly in a position to

judge the correctness of the demotion.

Quite appropriate to these facts is the

11

following from National Labor Relations

Board v. Phelps, 136 F.2d 562:

The Board does not, indeed,

it could not, contest the

correctness of the principle

respondents invoke, for a fair

trial by an unbiased and non-

partisan trier of the facts is

of the essence of the

adjudicatury process as well

when the judging is done in an

administrative proceeding by

an administrative functionary

as when it is done in a court

by a judge. Indeed, if there

is any difference, the

rigidity of the requirement

that the trier by impartial

and unconcerned in the result

applies more strictly to an

administrative adjudication

where many of the safeguards

which have been throwr around

court proceedings have, in the

interest of expedition and a

supposed administrative

efficiency, been relaxed.

The reception which Mr. Ginocchi

has received throughout the levels of

review in Pennsylvania has been an

unwillingness to see anything wrong in

what has transpired and an insensitivity

to the fact that, in this instance, the

12

Board voted in favor of the demotion,

vefore acting as the adjudicating body in

the hearing. Remarkably, both the

Secretary of Education and the

Commonwealth Court, in their opinions

reproduced in the Appendix, seem to

overlook the significance of the vote in

favor of the demotion, made before the

hearing. ‘Their reliance on the Lomas

decision, while sympathetic to the School

Board, does not come to grips with the

underlying due process difficulty with

what has transpired. The Supreme Court of

the United States represents the last

chance Mr. Ginocchi has to secure one of

the most fundamental of his rights under

the Constitution, the right to a hearing

before a previously uncommitted

adjudicator.

(h2) Question 2,

Throughout the proceedings in

13

Pennsylvania, Mr. Ginocchi has pointed out

that School Code Section 1151 on

demotions, while requiring a hearing,

otherwise provides no guidance on such

important matters as, for instance, what

the causes for demotion may be (Mr.

Ginocchi's protections would have been far

greater if he would have been treated

under the part of the school code relating

to suspensions), or, where, as here, in

the case of a cause not relating to a

specific individual (in this case, the

cause was "decline in enrollment"), how it

should be decided who to demote. Mr.

Ginocchi pointed out that, while in his

case, he was chosen from a restricted

group within the administration

(elementary school principals) on the

basis of seniority within that group, the

person chosen in another school district

within Pennsylvania was selected on the

14

basis of ranked ability. Kept in the

administration in Mr. Ginocchi's case was

an individual of lesser seniority; he was

not an elementary school principal.

Among the decisions Mr. Ginocchi

has continucusly pointed to on Question 2.

are Connelly, Giaccio, and Grayned as

follows:

[A] statute which either

forbids or requires the doing

of an act in terms so vague

that men of common

intelligence must necessarily

guess at its meaning and

differ as to its application,

violates the first essential

of due process of law.

Connelly v. General

Construction Co., 269 U.S.

i |e eo Oa

It is established that a law

fails to meet the requirements

of the Due Process Clause if

it is so vague and

standardless that it leaves

... judges and jurors free to

decide, without any legally

fixed standards, what is

prohibited and what is not in

each particular case. Giaccio

v. Pennsylvania, 382 U.S. 399,

i> L.EG.2d 447.

15

Vague laws offend several

important values .... Second,

if arbitrary and

discriminatory enforcement is

to be prevented, laws must

provide explicit standards for

those who apply them. A vague

law impermissibly delegates

basic policy matters to

policemen, judges, and juries

for resolution on an ad hoc

and subjective basis, with the

attendant dangers of arbitrary

and discriminatory

application. Grayned v. City

of Rockford, 408 U.S. 104, 33

Lee. 28 ££2,22!.

While Mr. Ginocchi continuously

brought up this Question 2. at all levels

within Pennsylvania, the only decision he

ever got was from the Commonwealth Court

in the form of the following two otherwise

unsupported sentences:

In addition, the standards to

be applied by the Board are

not void for vagueness. The

School Code is specific as to

how demotions or suspensions

are to be handled.

This statement of the Commonwealth

Court, while true at a superficial level

in that Section 1151] specifically requires

16

that a hearing be held, in no way comes to

grips with the due process difficulties of

this otherwise vague law. The Supreme

Court of the United States is Mr.

Ginocchi's last resort in his desire to

have the benefit of due process of law

granted him by the 5th and 14th Amendments

to the Constitution of the United States.

In our system of government, due process

of law is one of the most substantial

questions we have to deal with.

Certainly, Mr. Ginocchi deserves deeper

consideration of the points he has raised

than has been given him by the judicial

System of Pennsylvania.

Respectfully submitted

Daniel A. Sullivan Jr.

17

(j) Appendix

(ji) Copy of the order of the court whose

decision is sought to be reviewed

The Supreme Court of

Pennsylvania entered the following Order

on Mr. Ginocchi's Petition for Allowance

of Appeal, in No. 497 W.D. Allocatur

Docket, 1985: "Petition denied. Per

Curiam 1/23/86".

(jii) Other statements by courts or

administrative agencies in the case

Resolution of July 14, 1980, by the Board

of the Burrel. School District

"Resolved,

That upon recommendation of

our Superintendent, Charles Huston,

Anthony Ginocchi be demoted from

Elementary Principal to that of a teacher

for the following reason:

Decrease in student enrollment

from 1,785 students in the 1974-75 school

18

year to a projected 1,213 students in the

1980-81 school year.

That a written notice ... be

sent to him informing him of the demotion

and the reason therefor, and further if he

does not consent, that a hearing be

scheduled ...."

Outcome of the hearing held before the

Board on August 21, 1980, and Sept. 4,

1980

"I will make a motion to

Sustain the demotion of Mr. Ginocchi based

upon the information we have heard in the

last two weeks."

There were seven yeses and one no,

and one absent.

Opinion of the Secretary of Education,

July 9, 1982, in Appeal of Anthony L.

Ginocchi, No. 23-80

On Question 1.:

"The Appellant next argues™

19

—

that the school board violated his due

process rights by first passing a

resolution demoting him and then

subsequently sitting in judgment on the

propriety of the demotion. On July 14,

1980, the school board adopted the

following resolution:

[Resolution appears

above }

The board's resolution was

followed by a letter dated July 15, 1980

from the president of the school board

informing the Appellant of his demotion

and otfering the Appellant a hearing. The

Appellant claims that the passage by the

board of the resolution demoting him

followed by the same board's adjudication

of the case denied him due process of law.

The basis of the Appellant's argument

appears to be that the hearing accorded to

him was unfair because the board members

20

had already formed an opinion as to the

outcome of the case.

The issue raised by Appellant

was recently discussed in Lomas v. Board

of School Directors of Northwestern Lehigh

School District, (Pa. Commw. Ct., May 7,

1982), a case in which a committee of the

school board gathered information

concerning the activities of an employee

prior to the public hearings on the

employee's demotion. The court in Lomas,

when confronted with the argument that the

teacher was denied due process, stated as

follows:

Moreover, Section 1151 of the

Public School Code expressly

envisions that a professional

employee may be requested to

consent to a demotion and, if

such consent is obtained, no

hearing is required. We are

at a loss to understand the

means by which a board of

school directors is to acquire

the information it needs to

determine whether to request

consent to a demotion, thereby

obviating the need for a

21

hearing, if it is required to

be unfamiliar with the facts

prior to the hearing itself.

The fact that the members of

the school board had knowledge of the

circumstances surrounding the Appellant's

demotion prior to the Appellant's hearing

is not sufticient reason for overturning

the action taken by the school board.

Spruce Hill Township School District v.

Bryner, 148 Pa. Super. 549, 25 A.2d 745

(1948). As noted in Spruce Hill Township

all that is required of members of a

ihe hear and

school board is that they

determine the charges against appellant on

the evidence before them, uninfluenced by

other previous impressions.

In the present case, Appellant

argues generally that he was denied due

process of law because of the procedure

employed by the board. The appellant

cites no specific examples of bias and

22

prejudice on the part of individual board

members which showed they were unable to

determine whether to demote the Appellant

on the basis of the evidence presented to

them. We hold that the procedure employed

by the school board in demoting the

Appellant did not violate the Appellant's

right to due process of law."

On Question 2., the Secretary held

that he lacked authority to determine

whether Section 1151 is unconstitutionally

vague.

Opinion of the Commonwealth Court issued

May 3, 1985, in No. 1914 C.D. 1982

"The constitutional rights of

the petitioner were not violated because

the Board had prior knowledge of the facts

before it made an adjudication. Under

Section 1151 of the Code, the Board has a

duty to acquire information prior to

advising the petitioner concerning his

23

desire for a hearing. Such prior

knowledge does not mean that petitioner

could not get a fair hearing. Lomas vy.

board of School Directors of Northwestern

Lehigh School District, 66 Pa.

Commonwealth Ct. 421, 444 A.2qd 1319

(1982). In addition, the Standards to be

applied by the Board are net void for

Yagueness. The School Code is specific as

to how demotions or Suspensions are to be

handeled., Affi ried."

(jiii) Decree appealed froin

The decree appealed from igs

reproduced in (ji) above.

(jiv) Copy of the notice of appeal

The notice of appeal to the Supreme

Court of the United States was filed Mar.

12, 1986, in the Supreme Court of

Pennsylvania. ft read as follows:

Pursuant to Rule 10 of the

Kules of the Supreme Court of

the United States, Anthony L,

Ginocchi hereby vives notice

24

that he is appealing to the

Supreme Court of the United

States from the decision of

the Supreme Court of

Pennsylvania dated 1/23/86

denying him relief from

injustices which he has

suffered. This appeal is

taken under 28 U.S.C. Section

R2at «

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