# Respondents Brief in Opposition — H. B. Ives Co. v. Commissioner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0273%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief in Opposition - **Published:** January 1, 1962 - **Citation:** 370 U.S. 904 ## Text 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 ) 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 ‘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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0273%3A3. Public record. Not legal advice.