Respondents Brief in Opposition — H. B. Ives Co. v. Commissioner

et ees

- : MAY 15 1952

monary S GUAT. Us Se 1 JOHN, pays, CLERK

i . . IN THE

Supreme Court of the United States

October Term, 1961.

No. 874.

BERNARD AUGUST, or

‘ ; Petitioner.

Vv. :

BOARD OF PUBLIC EDUCATION,’ ac

SCHOOL DISTRICT. OF. PHILADELPHIA,

Respondent.

On Petition for Certi>rari to the Supreme Court —

of Pennsylvania.

BRIEF FOR RESPONDENT IN OPPOSITION. |

ws

Epwarp B. Soxex, ~~

21st Street and The P: arkWay

Philadelphia, Pa.

Attorney hos Respoude ak

International,.711 So. Seth St., Phils. 43, Pa...

Petition for Reargument

Page

I I eee ee euep dane nab eeese ana l

AO A Bree ero eee Per PT Pe rre - 4

“QUESTIONS IkESENT EY Peeters envwh sume pss. 2

CONSTITUTIONAL AND STATUTORY E’kOVISIONS INVOLVED ..... 3

a ee re Pe: ee Rake es rane esas 4

III tas aX aes evi eens aes AAP PCE a Ae 7

1 Petitioner Ded Not Karse the Constitutional Questions

in the State Court, and the State Court Did Not

Decide the Constitutional (Juestions sh aca G aute step 7

I. Phe Constitutional Questions Ratsed by ‘Tetitioner Are

Inoulestantial Para ue yey ag ena iebowerdcae wes : 12

™ 1. The Cantention That There Was No Evidence.

That letaioner Kefused to Answer a Question

Dues Not Kasse a Sulptantial Constitutional

Question .......¢.. ry See geeee 12

2. The Contention That Petitioner Was Not

Warned That His Refusal to Answer Might

“ : a

Be Ground for Dismissal Dues Not Present a

substantial Constitutional Question ..... orc ae

3) The Contention That Petioner Should Not Le

Distussed tor tit Kefusal to Answer the

Superintendent, When He Subsequently Testi-

fied Betore the Board of Lubiiec t:ducation,

Dues Not Kaise a Substantial Question ...... 15

EOD GER LE Ce TL es A eee Pree ke ees 16

0 iain, MORE MISS he ODER LETTE EDD RET ee PEOEE 17

Petition for leave w bile a Petition for Keargument ciao “17

Le ou eee i tes tees “18

CITATIONS.

Cases.

. Paye

Beilan v. Board of Public Education, 357 U.S. 399 (1958)... 7

Board of Public Education vy. Beilan, 386 Pa. 82,125 A. 2d 327

SEN bs tab casa see sab Reta eKe eee Sse sais hich 7,8, 12,15

Board of Public Education vy. Intille! 401 Pa. 1, los A. 2d 420

(eee PTO Tee TELE TERETE ETT OTT Ee ie 3

- Board of Public E-ducation v. Soler 46 Va Jos 176 A. 2d 632 .

1 See ae KUN ue Tis eka wtaen Fcc nieaees 8

‘Manton 9. Geeta 295 0. $4408 (0 135) ye hole ee

Lloyd A. Fry. Ruoting Co. v. Wood, 344 U.S. 157, 160 (1952) 13

Portland Railway, Light & Power Co. v. Railroad Commission ;

of Oregon, 229 U. S. 397, 412 (1913) ..........c0000% 13

Radio Station WOW vy. Johnson, 326 U.S. 120 | 1945 ) <a pace Ae

Authorities.

Page

Constitution of the United States, Amendment NIV 2.4.2... a

Judicial Code of the United States, § 1257; 28 U.S. C. § 1257

hat ; 1,3,7

* Pennsylvania Loyalty Act of December 22, 1951, P. L. 1726,

op Pardew s Pa. Stet. Als. 620 onc cee cede ss vavcs 5,8

Pennsylvania Public School Code of March 10, 1949,.P. L. 30,

as amended : .

§ 1122, 24 Purdon’s Pa. Stat. Ann. § 11-1122 ....... 4,7

"$127, 24 Purdon’s Pa. Stat. Ann. $ 11-1127 00.0.

§ 1132, 24 Purdon’s Pa. Stat. Ann. § 11-1132 0.73... 5

iN THE

Supreme Court of the United States.

(foronee Tena. 1961,

: 7

No. S74.

BERNARD ALGUST,

Petitioner,

v. ;

BOARD OF PUBLIC EDUCATION, ;

SCHOOLSDISTRICT OF PHILADELPHIA,

: ; Respondent.

BRIEF FOR RESPONDENT

IN OPPOSITION.

OPINIONS BELOW.

The Opinions in the Supreme Court of Pennsylvania

are appended to the Petition for Certiorart.

JURISDICTION.

Petitioner has inveked the jurisdiction of this Court.

under Tithe 2s UL S.C. Seetion T2570.

Respondent submits that gio question under the Con-

stitution gf the United States is faised by the dismissal of

a public school teacher on the statutory ground of ‘tin

competency" under the teachers tenure daws of Pennusyl-

vania after due notice of charges and hearing thereon, where

the charge was based on the tedieher’s refusal to answer

proper questions of his Superintendent.

~The decision of the Penn-vivania Supreme Court: was

based on adequate non-federal grounds.

The petitioner did pot raise in the. Penunsvivania courts

the constitutional questions urged in the Petition for Cer.

fiorari, and the. Pennsylvania Courts did net decide the

constitutiongl questions.

ae

2 Brief for Respondent im Opposition

QUESTIONS PRESENTED.

J. Where the refusal of a teacher to answer pertinent:

questions of his Superintendent constitutes incompetency

‘and ground for dismissal under. state law, was it a denial

_ of due process to dismiss the teacher on evidence that. the

Superintendent informed the teacher of the nature of the.

inquiry ata personal interview, aned the teacher declined

_ to answer until he consulted counsel and subsequently in

forthed the Superintendent by telephone that he would not

answer such questions? é‘

.

2. Where there is evidence that the teacher knew of the

importance. of the Superintendent's inquiry and no evidence

that the Superintendent explicitly warned the teacher that

he might be dismissed if he failed to answer, was it a denial

of due process to dismiss the teacher for refusal to answer?

3. Where the refusal of a teacher to answer pertinent

questions of his Superintendent constitutes incoripetency

and ground for dismissal under state Jaw, was it a denial of

due process to dismiss a teacher who has so refused, when

the teacher later answered similar questions of the Beard

of Publie Edueation in the course of his testimony at the

subsequent hearing on the charge of refusai to answer the

Superintendent?

Me hae

Brief tor Respond nt in Opposition

:

CONSTITUTIONAL AND STATUTORY PROVISIONS ©

| . INVOLVED. -

The due proeess clause of the Fourteenth Amendment

of the Constitution is set forth in the Petition for Cer-

tiorari.

Section 1257 of the Judicial Code of the United States,

28 ULS.C 6 1257, provides:

Final judgments or deerees rendered by the high-

est court of a State in whielea decision could bet had,

mias be reviewed by the Supreme Court as follows: |

(3) By writ of certiorari, . . . Where any title,

right, privilege or immunity is specially set up or

Clajmed under the Consfitution, treaties or statutes of,

or commission held or authority exercised under, the

‘nited States.”’

“4 Brief for Respondent in Ovposition

STATEMENT. . ,

This ix a proceeding ander the tenure provisions of ,

the Publie School Code of the Conanonwealth of Pennsyl-

vania, Act of March 10, 1949, 12. 1. 30, 5 1122 et seq, as

amended, 24 Purdou's Pa. Stat. Ann.‘ Wizz ef seq, die-

missing a public school teacher.

The Board of Public Edueation of the Se wer District

of Philadelphia distui<sed the petitioner, after a hearing

and due notice of charges, on the creme of imcompetency.

The charge was based onthe refusal of petitioner to answer

questions concerning alleged Commuani-t affiliations in a

professional interview with the Superintendent ‘of Schools

of the School Distifet of Philadelphia.

At the written re “yiernt of the Supe dtendent of Schools,

petitioner re ported to the Superiniendent's office for a pro-

fessional conference on October 1, 152, At this confer

ence, the Superintendent stated to the petitioner that ‘2

chad information in his possession about which he would

like to ask petitioner some questions, and that the material

in his possession had an important ber ripe of petitioner's

lovalty (Ro ia). Petitioner asked the Superintendent why °

showkd he admit anything when he did net know whether

the Sapertmtemdent could corroborate or supper? the state-

ments (R. Mia). : ;

Although the Superinteredernt tent ified ‘at the subse-

quent hearing before the Board of Puble Education on the

charkes against petitioner that he did not ask petitioner,

iny spcilic questions, the potitioner hinself testified that

the Superintendent told hint that one of the questions wias-

whether he was a member of the North Philadelphia branch

of the Protessjonal Seetion of «the Comniunist Party

(R. Sia).

The 1" titiener expressed a desire to consult: counsel

and the Supe ae ndent cave him the opportunity to do so.

On October 22, 152, petitioner calied th® Superintendent on

e

*-

Brict-tor ht spoudent im Opposition ° «

the telephone and said that he had consulted counsel and

that he would not answer the question= (HR. M4a-1a).

The Beatd of Public Bedueation comlucted a formal

hearing on the charzes as required by Section 1127 of the

Publie School Code of 4 The bearing was private at

the request of the petitioner. At the hearing, the Super.

imtemlent testified concerning his interview with petitioner,

petitioner’s failure to answer questions at that time and

petitioner ’s subsequent telephone call after heAad consulted

counsel,

The petitioner was represented by counsel at the hear

ing before the Board. Tle voluntarily testified over objec.

tion by counsel for the Board that he had been a member

of the Commanjst Party up te 1950-that he had not been

at all active in the Party after 1950 and that he had been

advised by his attorney that le shoukl not answer any

questions asked by the Superintendent of Schools concern:

ing hix associations prior to the-time of the emetment of

the Pechon Act (Pe nny lvania Loyalty Act of December 22,

1951, P. 1. 1726, 65 Purdon’s Pa. Stat. Ann. ¢ 211).

The Board of Paoblic Education sustained the charges

agains! petitioner and ordered bis dismissal. Petitioner,

appealed to the Superintendent of Public In-teaetion of the

Commonwealth of Pennsy!vania, as provided by the Public

School Code, and the decision of the Board was affirmed.

As further provided by the Public School Code, petitioner

appealed te the Court of Common Pleas of Philadelphia

County. On thix appeal, petitioner did not request a hear-

ing de neve as portsitee-eot such an appeal by Section 1152

of the Public School Code, 24 Purdon*s Pa. Stat. Ann.

AL-1192. He filed with hix appeal his Exceptions to the

adjudication of the Saperintendent of Public Instruction

which are appended to the Petition for Ceriorari (pp. 41-

44), and his appeal was heard on the record of his hearing

before-the Board of Publie Edueation.

The Court of Common, Pleas No. 6 of Philadelphia

County: sustained his appeal and set aside the distnixsal on

eo.

> 2 Brief for Respondent in Opposition

the ground that he had not been asked a specific question

A(R. 137a, 147a).

The Board of Public Ediication appealed to the Sa- _

preme Court of Pennsylvania, which held that the dis- -

missal of petitioner on the ground of incompetency under

the Public School Code was warranted, reversed the order:

of the Court of Common Pleas’ and sustained the peti-

tioner’s dismissal,

‘After the decision of the Supreme Court, petitioner

‘filed with the Supréme Court of Pennsylvania a Petition

for Leave to File a Petition for Reargument and a Petition

‘for Reargument, copies of which are appended to this Brief

in Opposition (pp. 17-19). Both of ‘these petitions were

denied by the Supreme Court February 28, 1962, Per

Curiam, without opinion ( Pettition for Writ of Certiorari,

p. 40).

Brief for Respondent in Opposition

ARGUMENT.

I. Petitioner Did Not Raise the Constitutional Questions in

the State Court, and the State Court Did Not Decide

- the Constitutional Questions. ;

It is submitted that this Court is without Jurisdiction

under 28 U.S. C. £1257, because the ‘title, right, privilege

or immunity’ now claimed by petitioner was not ** specially

set up or clamed under the Constitution of the United

State s** in the Pe nnsylvania courts.

Thi is apparent from the-statement of Questions Pre-

sented | aind, the Method of Raising Constitutional Questions,

as set forth tm the Petition for Certiorari (pp. 2, 6-7), that

petitioner did not raise at any time in the state courts the

coustitutional questions which he now urges as meriting

review by this Court. It is equally apparent fromexamina-

tion of the Opinion of the Supreme Court of Pennsylvania

(Petition for Certiorari, pp. 11-34), that that Court did not

fonsider and did not decide any questions under the Con-°

stitution of the United States.

The principal question raised in the Supreme Court of

~ Pennsylvania was whether its decision in Board of Public

Education v. Beitan, 886 P a. 82,125 A. 2d 327 (1956) ' was

still the law of Pennsylvania. The Pennsylvania Supreme

Court had held in the Beilan ease that the refusal of a

public school teacher to answer questions of his Superin-

tendent of Schools, in a professional interview regarding

former Communist affiliations. constituted **incompetency”’

as a-ground for dismissal under the tenure provisions of

the Pennsylvania Public School Code (24 Purdon’s Pa.

Stat. Ann. 6 11-1122). The Court had also decided in the

Beilan case that a proceeding to digmiss the teacher fer

incompetency on the ground of his refusal to answer such

1. Affirmed by this Court in Reilan 7. Board of Public Education,

357 U. S..399 (1958),

fod

rom

.

~

Me

Lee]

a Brief for Besipenide ut i Ope sition :

a en

bua

o

s . : : ge hy . . ic

questions of The- Supe tisttende int could omnes he brought

under the Public School Code, and that the Board w as not

precluded from so -procecding by ‘the’ enaetmerity of the

Pennsylvania Loyalty Act of pest nfer 22,.4951, PL L.

i Purdon'’s Pal Stat! Ann." ‘211... It was contended? |

by present petitéoner ins the Supre met ‘ourt of Pennsyl-

“vania that that Court had’ overruled its dectsion in the

Beilan ease by statements contained Tidits ee in Board

of Public Edikation vs Jntille, 401 Pa. 1 . 163 A. 2d 420

_ (1960)... The Court held, however, as ‘it did in the case of

Board of Public Edueation.v. Soler; 406 Pa. 168, 176°A. 2d

1632 (1962 i, that it@uecision i inthe Beilan ease‘had not been

verruled. anil that refusal by a teacher to answér his’

ft uperintendent constituted inconfpetency, as a ground for

dismissal uniler the Pennsylvania Public School Code.

Petitioner: does. not now challenge this conclusion

sncuntas on an interpretation of the state law, nor does

he seek to raise again the constftutionatity of the conclu-

a sion. which was settled by the decision of this Court in

© Be ilan v. Board of Public Education, 357 U.S. 399 (19: 78).

Petitioner did contend in the Supreme Court of Penn-

sylvania that Iris ease should be distinguished from the

+ Beilan case,on the ground that he-had not: been asked any.

‘question and that heshad not vefused to answer a question. -

He did nay raise this ixsties, however, as a matter of any

aalleged deprivation of due proceis of the law or other vio-

latjon ofthe ( hg The contention was made as a

matter of the su ney, of the evideace.. The Opinion of

7 the Supreme Court-so treated it in vejectiae the contention.

“Phe Opinion pointed out (Petition for Ceriorari, pp. 17-

#

18): son

wether; trne that, taken: apart from every-

“Thins: ee in the, reeord, one could read from replies

made by Dr. Hover, in one cireumseribed. part of the

record, that August was not questioned. However,

~~ when one reads the entire record it hecoggss as plain as

a pikestaff: that August was under inte rrogation at that

eae

first’ interview. See pee

4

-%

Ae &€ '

6 Briaf, fer: Be Np fy ah Mi yey sition fe . o

Thee Court, then mproted from the testiniayy of peti ;

tioner himself at his hearing. before. tue Board, whe ‘rem he

stated that “Dr. 2) fhe Supe rintende mt of Schools)

said to him that one. “the quéstions ‘He intended to ask:

Was whether petitioner wa isja member of the North Phila.

dvlphia branch of the Professional Section of the Com-

“munist Party (R. play

This, petitioner is in error it stating in his Petition

that there was no evidence that he was asked a qnestion.

whith he refused to.answer. Petitioner's Statement of the

Case omits any reference “to petitioner’ ste stimony about

his interview with Dr. Hover, in spite of the spocifie refer-

ence tocit-in the Opinion of the a Court of Penn-

sylvaniz.

The Supreme Court of Penns aienile ales héld.that the:

statement made by petitioner to the Superintendent on the

telephone, that he Would net answer such questions, con-

stituted a refusal to answer questions with the same effeet

oas if the refusal had been manifested in a second protes-

sional interview, and that it- would have been futile Tor the

- Superintende nt to have arranged a secand conference or

interview with the pe titionér after this refusal (Petition

for Certiorari, pp. 18-19). oo

Thus, the Court held that the eviderice was sufficient to

show that the petitioner had in fact refused to answer...

questions of .the Superinte ndent of. Schools. At mo time

did petitioner contend in the Supreme Court of Pennsyl-

vania or in any of the subordinate tribunals that such a A

determination would ‘viotate due process of law.

__A second question w: hich petitioner now urges as merit-

ing review by this Court is that it yaa denial of due

process to dismiss him for refusal foanswer, on the ground"

that he was given no warning that his refusal to answer

might be wround for dismissal. * Petitioner hever raised

this issue in-the Pennsyvivania courts. He net only failed

to raise it as a matter of constitutional due proce iss. but-

also failed. to contend that the alle oud lack of warning of

a q *

. - .

- ry .

? r

es /

1) Brief for Respoudent in Opposition

/ ‘ "

the consequences of refusal to answer would be any barrier.

to dismissal under either state law or federal law. The

alleged lack of warning was not raised by petitioner as an

issue in any way, as .is plainly shoWwn by the Method of

Raising Constituticral ‘duncan set forth in the Petition

for Cerfiorari (pp.6-").

The” third tee presented biy petitioner ax ground -

for review by this Court .s that it was a denial of due

process of law to dismiss 1im for refusal to answer the

‘Superiritendent of Schools when he’ had \subsequently an- °

swered all relevant -questions asked by the Board of Publie

‘Education ‘4n his hearing before the Board on the charge of

having refused to answer the Superintendent.

Petitioner did contend in both the Court of Common

Pleas and in the Supreme Court of Pennsylvania that his

‘. willingness to anisw er questions before the Board of Public °

Education and to tell that Board about his former Com- .

munist membership and ‘affiliations atoned completely for .

his refusal to answer the Superintendent of Schools. This

contention was rejected’ by the Supreme Court of Penn.

sylvania, although the Court. of Common Pleas had ap-

‘parently found some merit in the contention. |

.The argument of petitioner that he was entitled to this

‘‘locus- penitentiae’’ was fever advanced by petitioner. or

considered by the Courts as a matter of due process of law

or other constitutional provision. It was treated by peti--

tioner himself as a concept of the state law, as.a defense to

- the charge of incompetenecy, and the Suprerhe Court of

Pennsylv ania held that the Pennsylvania law djd-not reeog-

nize this defense under the circumstances, that the peti-

tioner’s assumed ‘‘nenitence’’? was a sham and a pretense,

that it came too late, and that the petitioner's duty was to

show candgr and int@llectual honesty toward his Superin-

tendent and not merely to the Board of Public Edueation

when he was before it on the charge.of refusa] to cooperate

with the Superintendent. In so deciding, the Court. did not

touch any constitutional issue. :

9°

¢?,

Brief for Respondent in Opposition *11

After the decision cf the Supreme Court ‘of Ponns <vT

varfia, petitioner filed witn that Court a Petition for Leave

to File a Petition for Reargrment (Appendix, pp. 17-19)..

There were three grounds for seeking rearguinent. the first

and third of which merely sought, reconsideration of the

questions of state law previouslyargued. and expressly

- considered by the Court. The second ground fer urging -.

reargument, attempte dto raise, for the perst time. a eon.

stitutional question, by the following, statement :

“As stated by the dissenting Opinion, there is in-

volved a denial of due process as assured by both the

Constitution of. this Commonwealth and of the United

States, which denial is not considéréd by the Opinion

of the Court and was not raised or considered by either

appellant or appellee in eather the briefs or oral argu-

ments.’

‘Thus, petitioner conceded in hig’ Petition for Reargu-

ment that he had not previously raised and that the Court ©

had not considered the constituticgal questions which he

now urges this Court to review. .

The Supreme Court. of Pennsylvania denied the Pe ti-

tion for Leave to File a Petition for Reargument and the

Petition for Reargument without opinion.

It is settled by the decisions of this Court that the

raising of a constitutional question for the first time on a

Petition for Rehearing addressed to the state Court is not

sufficient to give this Court jurisdiction under 28 T. S.C.

£1257, unless the state Supreme Coort actually entertains

the Petition for Rehearing or Reargument and considers >

‘and decides the constitutional question. In this case, the

Pennsylvania Supreme. Court denied the Petition for Re

argume: int without opinion. ) a

Radio Station WOW v-. Johnson, 326 U.S. 120

(1945) ;

Herndon v-. Georgia, 295 tT. S. 441 (1935).

vy

I2 Brief for Re spondeut in Oppgsition *

. &

Petitioner is not in a position io complain that he had.

no opportunity to, faise, the constitutional questions in the

Pennsylvania courts, which he now desires to raise by Peti-

tion for Certiorari. The fact that he was the appellee in

the Supreme Court of Pennsylvania did not prevent him

from raising these issues as alternate grounds for affirm:

‘ance. Likewise, petitioner cannot claim that thé decision

of thaSuprenie Court of Pennsylvania was such a surprise

to him that he had no adequate-opportunity to raise the

constitutional \issues. It was surely foreseeable that the

Pefinsylvania Supreme Court would adhere to its previ- -

ously expressed rule of Board of Pubhie Education v1

Beilan, 386 Pa. 82, 125 A. 2d°327 (1956) and deeide the

question of the state law against petitioner as it did. Peti-

' tioner was originally the appellant in the administrative

appeal to the State Superintendent of Public instruction

from his dismissal by the Board of Publie Edueation. He

also appealed from the decision of the State Superintendent

to the Court of’Common Pleas.

Furthermdre, petitioner did not: raise these ‘constitu-

tional questions on_his appeal from the Superintendent of

Publie Instruction to the Court of Conimon Pleas, although

he filed Exeeptions with. the Court, which are printed. in

the Appendix to the Petition for Certigrari. (pp. 41-44).

. The ‘decision of the Supreme Court of Pennsylvania

rested on non-federal grounds which were completely ade-

quate to support the result:

II. The Constitutional Questions Raised by Petitioner Are

Insubstantial. |

Tt. Tue Contention Treat THere Ws as No Evmence Tuat

Petitioner Rervsep To Answer a Question Dogs Not

Ratsk a SuastaNtran Constitution at Question,

Petitioner argues that the evidence showed that he was.

not asked a question and that therefore there was no evi-

dence that-he refused to answer a question. In support of

this conte ntion, petitioner printed in his Petition for Cer-’.

Brief tor Be spouds ut in Os; sage :

fiorart (pp. 34) only ati isolator ueNtriet ‘Yrom the reeord

of his hearing, in whieh the Supergitendent # testified that

hey tole petitioner he w: aanter| teask him questions relating

to his loyalty and did not ask a specific question. ;

In disposing of the argument’ that petitioner, had het

refused to answer a questions the Opinion of the, Supreme

Court of Pennsyvivania pointer cuted hat the Gntire record:

chearly showed that petitioner Was under iiterrosation ut oe

his interview, and quoted the testimony of petitioner him-

self that the Superintendent told him that ome of the ques

tions was Whether petitioner was a momber ef the North

Philadelphia branche of the Professronal Seetion of the

Communist Party of Phikade ‘Tpbia. (Petition for ¢ ‘ertiorars,

pp. 1v-1s). pete

Similarly, the Supreme Congot Pennsylvania rejected

the contention of petitioner that he did not refuse to answer

-. questions when he was given the opportunity. to consult

counsel and then communicated his-refusal to answer to the

Superintendent by a telephone call in places of having a

second personal conference’ with the Superintendent.

The evidence was fully adequate to show that petitioner

refused to answer questions as charged.) In any event, the

sufficiency of the evidence is not a constitutional question.

o

Ts

The determimation that the evidence was sufficient consti-

tutes a finding of fact by the (ourt, ‘and this ¢ ‘ourt Will not

revjew the finding of fact of a state Supreme Court, ‘

. There are no exceptional circumstances of any

Kind that would justify. us in rejecting the Supreme

Court's findings, they dre not without factual founda-

\ tion, and we accept them.” Llowd AsFery Roofing Cn.

: roWood, 344.U..8.°157, 160 (1952).

-

“See also Portland Railway, Light & Powér Co, v. Rail-

road C OM MISSION of Oreqon, 2290. S. 307, 412 T1913):

See v3 _g

Sis’ :

ws

14 - Brief for Respondent in Oppenigs

va

The olreewaman Tig Peritioser W As Not Waren

“Tat His Reev Say TO ANSWER Mian, Be Grows So FOR |

DismissaL Does’ Sot Paesext a Supstax tia, Coxstite-_

TONAL QUESTION,

Petitioner was culled for ‘a personal interview with

the Superintendent of Schools: of the School District ‘of

Philadelphia. The Supe rintendent informed petitioner that

he desired te ask him (questions .w hich liad an important

‘Dearing on his loyalty. -Petitioner requested and -was” ac-

corded the right to consult counsel. Under these eireum-

stance s. ‘there i is ne doubt that petitioner fully “anderst®od

that the inqairy was importatt and that the Superintendent

considered it important. Cerfainly no further explicit warn-

ine that refusal-te answer such questions uns lead to dis->

missal was necessary: ,

Petitioner was’ ‘dismissed for. incompetency under the

Pennsylvania Publie School Code. The incompeteney eon-

sisted of la¢k of candor in refusing to answer important

. questions relating: to his professional fitness asked by his

superior, the Superintendent of Schools.

— The Supreme Court of Pennsylvania did not. deal ex-

plicitly with the contention that petitioner was not given

answer, as petitioner never raised this question, as a mat-

- ter of either state fiw or federal law. The Court-did state

in its “Opinion, however, that petitoner was not naive, and

that he knew that the Superintendent did not intend to

talk-to him on the state of the weather. but on the state of

his yn. to reac ideology (Petition for Cer-

tiorari, p. 19). © aa

The Opinion fret referred to petitioner’ s response to

e. 3

‘the Superintendent's statement- that he-desired to question

petitioner regarding loyalty, to which petitioner said, ‘* Why

shonld | admit anything before I see whether yot can cor-

roborate it ?"’, as showing petitioner's lack of gandor afd

‘his defieeney in professional attitude, civic responsibility,

appreciation and ideals (p. 20). eee

>—warting of The consequences of dismissal for refusal to —

4

_tion.v. Beilon, 386 Pa. $2,-125 A. 2d 327 en, sew

-

*

“e Brief for Re apowdl nt in Opposition i

The Pe mnsylvania Supreme Court was fuils warranted

in concluding that petitioner, thoroughly wider ‘stood the im

portance of the inquiry and the necessity of responding te.

it, and that he was properly*found to be incompetent because

of hjs.fai'ure te answer. In all material respects, the case

of petitioQer is the same as that of Board of Pablo Educa

» $97 UL S.399 (1958), where refusal to anys er the S part r a

‘jntendent ulder similar circumstances was held to feed

vompetenes, and dismissal on this ground did wot saiivingee

any constitut®, nal right of the teacher. The fact that there

_) Was no evidence that petitioner was explicitly warned of

the consequences of his refusal is net a mate rial distinetion.

Accordingly, this question isnot a substantial one for

this Court, ever’ if it had been raised hy the petitioner in

the state courts.

3. Tye “CosTENTION Tuat Petitioner Suoviy Nor Be Dys-

. Missep For His Rervsat To ANSWer THE SuvesinTenv-

ENT, Wuenx He Susseqguentty Testiriey Berone rue

Boarv or Pesiic Evvcatios, Does Nor, Raise a Seu.

STANTIAL Qu ESTION.

-- Petitioner was charged with i incompe teney in refusing

to answer questions of the’ Superimendent of Schools. At

his hearing before the Board o: Public Education on thi-

charge, he offered to answer any questions of thie Board of

Public Education regarding his former Communist affilia-

tions and was permitted to so testify, over objection of

‘counsel for the Board. - The testimony was not directly

material to the charge of refusal to answer the me :

tendent. Its only relevancy waste-confirm that the e was

“a highly important reason for the Superintendent ‘s desire

‘to question this teacher and to show that petitioner had

important and relevant information which he could haw:

given the Superintendent if he had not re fused.

As the Opinion of the.Supreme Court of Penn=ylv ania

pointed out, petitioner was one of 8,000 teachers employed

16 m Brief for Respondent mn Opposition

in the Philadelphia.school system and owed a duty to his —

administrative -superior,-the Superintendent.. He‘did not

compensate.for his failure to perform this duty by hes will.

ingness, mich later, to answer questions before the Board

of -Publie Edueation at a ‘hearing Which was concerned with

‘his refusal to answer the Superintendent and net with his

Communist affiliations (Petition for c ertiorari, PP. 31-33).

“The Court also consislered that petitioner, Wis not sin

cerely pe nitent for his. refusal to answer the Superintendent

(pp. 32-33). : :

-In so concluding, the Pennsylvania Supreme Court did

Linig -

not deeide any federal constitutional question, and peti-

tioner had never raised this contention asa constitutional

issue.

‘dismissal, as: has been established in’ Pennsylvania, the

question of whether it is a defense to that‘ éharge- to be

willing at a later time to answer similar questions of the. 2

. governing Board is not a matter arising under the Federal ;

Constitution, and involves no question of due. process of

law. At most, Jit’ involved only a question of state law.

CONCLUSION.

For the foregoing reasons, it is: respeetfully submitted

aa that the Petition. for Certiorari should be denied.

Respectfully submitted, | 7°

Epwarp B. Soxes,

% Attorney for Respondent.

tis manifest that if the refusal of an cuployes to am -

-swer questions ‘of his administrative supe: rior is found for -

a

Oe

ns

fomete 7

"IN THE

SUP REME COU] RT OF PEN NSYLY ANIA

° ?-

No. 473, January Term, 1961. %

—BOARD.OF PUBLIC EDUCATION

SCHOOL DISTRICT OF MULADELPHIA Boo ee

ey . ‘ v. . rs P if % - am

re ——- AUGUST," /

As a ee ge

| cack ‘PETITION FOR LEAVE TO FILE A P PETITION

ah gene Was arte FOR REARGUMENT.

& "Asp Now comes appellee and Petitions this Court. pe

privilege and right to file a pition for reargument, ¢

tached hereto, éven though saj( petition is filed more ‘as

10 days from entry of fiial judgment by this Court, and in.

sxe thereof appe ‘lee @leges: - pes) wee.

Appyllee’s counsel's’ press of other legal mabtere::

sh appellee's €ounsel from proper and’ due consid-

> eration. of the wisd6m of filing a petition for reargument

and appellee's counsel just learned of the fact alleged ing |

De ame inggy fpiason for reargument. - . Pde

4

<5/ The, igh ~ involved in the reque “sted petition for re-

&/

stguine nt are of substantial constitutional importanee not

onl¥ to appellee but to all public employees. :

x This Court’s Rule 71 speeifically allows the exten-

sion of time for the filing of petition for.reargument upon

Ause shown. f

ff: -Respeetfully submitted,

a i , : Wituias J. Wootstos,

4 Attorney for Appellee,

i ae (17)

pr. fs

1S pore gel Petition for Reargument

| - IN THE

st PREME COURT OF PENNSYLVANIA .

No. 473, January Term,, 1961.

. BOARD OF PUBLIC EDUCATION ~~

SCHOOL DISTRICT OF PHILADELPHIA

v 4 Cae:

BERNARD AUGUST, | |

. P * Appellee.

PETITION FOR REARGUMENT. |

*

To the Honorable Court:

Axp Now comes appellee and petitions this C

‘reargument for the reasons overlooked or m@apprehended

by the Court, which are set forth below:

‘1. ‘The Opinion’of this Court is in error in holding that

Board of Public Education v. Intille, et.al., 401 Pa. 1, did

« not directly overrule Board of. Public Eduction v. Beilan,

386 Pa. 82, for appellees’ brief in Board of Public Educa-

tion v. Lytille, et al., in its statement of questions specifi-

‘cally raised *the gontention that the refusal to ‘answer a °°

que gen a Congressional Committee implying subver-

sive -afffilations was an act ‘of incompetency under the

Public School Code and the Court’s final paragraph specifi-

eally rejects that contention and specially states ‘‘anything

‘in the Beilan case to fhe contrary is herewith overruled for

the future” ;

er stated by the diesuitiae Opinion, there is in-

velve a denial of due process as assured by both the Con-

stitution of this Commonwealth and of the United States,

which denial is not considered by either appellant or, ap-

peilee in either the briefs or r, oral ‘arguments. ;

*

| Petition for Reargument Le se 19.

3. This Court reversés what it-held in Beilan and re

peated verMatim in [filler as to_application of locus: peni

tentiae for a teacher such as Deacon, who ‘volunteered his

unrestrained revelation of his buried aberration of the

past’? and ‘‘who has entirely discarded past subversive

affiliations and has abided by atoy alty oath in good faith’’.

Wuenrerore. it is prayed that this Court grant reargu-

ment for reconsideration of the above three legal questions,

all of which are swhstantial legal principles which in the

future will be applicable to others. -

Respectfully subsititted,'

Wriuam J. Woorstos,

Attorney for Appellee.