# Petition for Writ of Certiorari — Litteral v. Indemnity Insurance Co. of North America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0317%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 370 U.S. 919 ## Text onicd Su Supreme Court, U. ay Pen Be COURT. U, & FILED Q APR 27 1982 «JOHN F. OAWIS, CLERK Supreme Court of the Anited States October 1961 Term 7 No. . 911 “> ' WILLIAM G. SOLER, © | A ‘ ; ; Petitioner, - v. ¢ BOARD OF PUBLIC EDUCATION, SCHOOL ‘DISTRICT a PHILADELPHIA, avian ~ \ — — PETITION FOR A. WRIT OF CERTIORARI TO sTHE SUPREME COURT OF PENNSYLVANIA = OsMOND K. FRAENKEL; A. Haney LEVITAN, Attorneys, for Petitioner, 120 Broadw ay, New York 5, N. Y. ‘TABLE OF CONTENTS > : ‘ & PAGE = | THE OPINION BELOW ........... imetaseonecess ere 1 Tue GkouNvs OF JURISDICTION ............. Widewvaks 1 QUESTIONS PRESENTED FOR REVIEW .>.................. 2 _CONSTITUTIONAL AND STATUTORY Provisions INVOLVED 2.03 Z “9 . STATEMENT OF THB CASE ........ eatin nie aaated Fares 3 “ RAlsep ...... woavens ppadeaeee be ceseerrer ences que B REASONS FoR GRANTING THE Writ ...7.....2......... 6 APPENDIX A—Opinion of the Court ........ Eee pare 15 APPENDIX B—Constitittional and Statutory Provisions Involved oegeecee piesetepeesis aeuene os Pen Bie “APPENDIX C—Extracts ‘from enna to Court of Com- . . mon 2 errr ryy Per reT Tre rer Paeeses A --__ Appenpix: D—Excerpt from Petition for Rehearing Be- / - fore Supreme Court of Pennsylvania .... 36 oo " & a. Cases Cited — - , - % "PAGE “Beilan_v. Board of Public Education. me TS 309, DN cen cawssdese) 46 seab eae ekess 2,5, 6, 7.8. 8.9, 10, 11,15 Beilan v. Board of Public Education, — Pa. x? eee ¢ Board of Edue ation v: $ntille, 401 Pa. f, 22 ...... ee Board of Education vy. Ww iliam G. Soler , 406 Pa. 168 - Se ee as es ve ao kb ooo ds Cane bus kerb eabs 1 ~ Board of Public Education y. Watson, 401 Pa. 62 ae Brown Case, 151 Pa. Super? 522, 30 A. 2d 726, aff'd . 347 Da. HIN, ey as SE enn tV ss Pan bimee nebee 10 Chandler v. Fretes, 348 U. MBit caoorsseee reeks iZ Cohen ¥. Hurley, 366 U. 8. 117 ......-. ieee pus 12 Cramer Vv. 5 see States, 325 U. ¢. Sereaves ves seoe 6 + Groban, In re, 352 U. 8. 330. B82 0000... Peers Konigsberg v. State Bar of ( ‘alifornia, 353 U, 8. 252, . 366 U.S: _Y aaeere co atecemaue so eee eee 6,8 Lane’s Appeal, 141 Pa, Super. 259, 14 A. 24-573 3... 10 ‘Reynolds v. Cockran, 365 v. B. 525 nageweivey ° $2 Xlacpower v. Board of Higher Education, 330 U. 8S. DE a OG va a needs 4b Oe bad BOREL GSS HO VERO rena y Stromberg v. California, 317 U. Ss. 287 iecedes .»+ 6,9, 10 ‘+ Swick v: School District, 141 Pa. Super. 246, 14 A. cl ai inlay ss: ee) Yates v. United States, 354 U. 8. 298 ............06. a : ifi a : ee ¥ , ees . Constitution . Cited a) . oat eo. > (© Unrrep StaTBs: 14 Amendment--Due Process SOUP -cvaviscecces 3, 2 ‘ Statutes Cited _ Ee , 28 U. GO. §IMT(S) |. 0.5 Eccl 1 : PENNSY LY vANIA Loy ALTY Aer: ff ee. ~ ——" Net of 1951; Dec: 22, P. L. 1726, §§ 6,7, 10 ..4..... 3,4,6 65"Purdon’ ’s Pa. Stat. Ann. §§ 216, 217, f veep eas eae TPAC ‘HER'S TENURE Act: * - ae ‘ ss seit a Act of 1949, March 10, P.L. 305 4a Tart. XI; §§ 1122, Cae eee enero r ry often gee — S. Act of 1949, May 9,2. Le 939° $4 aed er o4 Purdon's Pa. Stat. Any. ‘$3 11-1122, 11-2232(b)-.5 3,40 \ . 4 4 . ad . «/ SY . ¥ , by , ri ” : ee . x ay os di - ? . y) ¥ t texiin Cot of ihe, ited States October 1961 Term , ey No. —™- . — WILLIAM G. SOLER, ales Petitione, 7 a + Boar or PusLic. Epve wtiox, Scitoo. Disraicr OF PHILADELPHIA, ‘ Rexponde al. - 7 - PETITION FOR A-WRIT OF CERTIOKARL TO THE SUPREME COURT OF PENNSYLVANIA _ To the Chief Justice of the United States ‘and the Associate Justices of the United States Supreme Court: Petitioner respectfully asks this Court tu- issue a Whit of certiorari to review the final judgment of the Supre me Court of Pennsylvania which upheld petitioner's dismissal from the Philadelphia school system. The Opinion Below The opinion of the Supreme Court of Pennsylvania’ is reported in 406 Pa. b68 and 176,A. 24 653. A copy is herete annexed in Appendix A (infra, Pp. 15-30). The Grounds, of Jurisdiction (i) The judgment aes, lo he reviewed was dated and entered on December 29, 1961. (ii) A petition for rehearing. was entertained by the Su preme Court of Pennsylvania and denied on February 6. 1962. (iii) Jurisdiction of this Court is invoked under 2s U. 8. C. § 1257(3). / Questions Presented for. Review 1. Whethe? the dismnixsal of a school teacher for, alleged incompetence resting entirely on his refusal to answer ques- = tions about possible Communist connections . ix consonant with due process when the teacher was notified of the authority under which he was being pai or warned that refusal to answer ‘would be deemed é¢idece of incom- petence or might result in dismissal. ‘ : 2. Whether the dinaniaéhi of a se hool teacher js. consonant with due process’ where the decision of the school board- rested, without distinction, on alleged incompetence and on * the teacher's plea. of self-iner iminiation before a ¢ ‘ongressional committee. , . : 3. Whether the dismissal of a school teacher for alleged _ incompetence is consonant with due process when it rested ‘only on the teacher's’ statement that he would not answer questions about possible Communist connections unless given ar opportunity tu'consult counsel about them. 4. Whether‘the dismissal! of a school teacher for alleged incompetence can be sustained when actually motjvated by - the teacher's plea of self. incrimination soiree eso f committee. 5 OW hether Beilan V. Board of Publie Edication, BT | U. 8. 399. should not be overruled. Constitutional and Statutory Provisions Involved Only the citations of the constitutional wud sti tory provisions’ are ineluded here. The full text ix printed in Appendix B hereto cat iat ve. 31-33). The citations are as follows: : : Due Process Clause k U.S. €., Const: Amendment 4. Te: achers’ Tenure Aci * Act of 1949, Mareis 10, 2. L. 30, art. X6, #£ VI2e, 1132(b) 51 1945, May 9. P. L. 939, £4; 24 Purdon’s Pa. Stat. Ann. $$ 11-1122, 1L-1152(h). a Pennsylvania pone Act Act of 1951, Dec, 22. P. ea 175, $86. 7. 1M: 65 Purdon’s Pa. Stat: Ann. $§ 216, 217. * Statement of the Case ee ‘Petitioner had. served. as a teacher of English in the Phila- delphia school system from 1929 until his dismissal mm 155 (65a). * On May 28, 1953. he was called. to the office of the Superintendent of Schools. He w was told he ‘would’ Ine aqines — tioned about his loyalty (Ta, 60a, Gla) and asked if he bad - been an active ¢ ‘ommunist in January 1952 (Tas. After ob * taining an opportunity to consult counsel (Ta, 8a}, he came _ back on June 19, 1953 and stated that he was not a member of the Communist Party in January 1952 (8a). According to Dr. Hoyer, the Superintendent, he then said “he could net answer any siinilar questions unless T would pros ide him with the questions so that he could take them to counsel for his consideration” (Sa). This Dr. Hoyer refused todo and that ended the interview without any questions having been * usked (Ra, 9a). No charges were preferred against petitioner at that time (50a). Up to this time petitioner's ratings by « his principal had been satinfac tory, the last-af these having * References are to folios of the printed Appenddis rs aa been dated dye 26, 1953 (48a, Soler Exh. 2 > -106a). And he | continued te ‘Teac h wii November 20, 1955 (oa. S a On November 17, 195 ed petitioner: was called before the — . Un-American Activities Committee (Ma). The transcript of the hearing (read into the record at the School. Board hearing, 12a-26a) shows that when asked about Communist Party mé@mbership he pleaded the Fifth Amendment. (19a, 20a). . Then, for the first time, a rating of unsatisfactory Was given, dated’ November 20, 1953 and signed, not by peti- tidner’s principal, but) by’ the Superintendent, (see Board wrote petitioner summarizing the two interviews of May 28 and June 19) and stated that petitioner's refusal to answer questions showed “Iek oof professional fitness’ and his conduct” before the House Committée showed Slack’ of a ‘sense of civil responsibility and public duty” (12a, 13a). Formal charges were then preferred by the School Board (2a- -4a). These, for the first time, referred to petitioner.as : “incompetent” (3a). These Charges referred separately to the ‘interviews with the Superintendent and the appearance “Exh, 1, 10la). On November 245 1953) the Superintendent before the House Committee as evidence of inconipetency. A . hearing on these charges was held on May 3. 1954 (5a-10Ta). On Jiine @ 1954 the Board adopted a resolution that the ‘ “charges” were sustained and that petitioner should be .dis- “missed (1092). There Wes no separate finding With respect to either of the two aspects of the charges. This resolution was confirmed by the state Super intendent of Schools (110a 114a). From the latter determination an appeal. was taken. in accordance with Pennsylvania daw, to.the Court of Common Pleas (133a). -‘That Court held. (1407 the dismissal unjusti- fied under Pennsylvania law on the ground that in CASES dealing with Joyalty the proceedures specified in the Loyalty Act of 1951, P. L. 1726, were exclusive, relying on a siatement in Board of Public Education Vv. ‘Intille, 401 Pa. " (157a). * Inthe Court of Common Pleas the Se ‘hoo! Board "a cone eded Y “ a e - St. | that the second ground ‘for dismissal, to wit, the’ plea of the privilege before the Committee, Was not tenable (135a, ida. The Supreme Court of Pennsylvania, however, overtdhing ii own stateinent in Intille, reversed and held that the refusal to answér the Superintendent justified dismissal for iMeon petence (infra, Lott). One judge dissentéd (infra, 261). Pt The Manner in Which the Federat Questions Were Raised “On petitioner ‘s appeal to the Court of Common Pleas hie challenged his dismissal as a deprivation of due proe uss in violation of the Fourteenth Amendment. The pertiin Hh par tions of. the appeal are set fyetht in Appendix Co cifrada, pp. 34, 35). . The Court of Common, Pleas did not deal with the cousti- titionak issues since, -basing itself on the state Supre Court's decision in Intille, supra, it set aside the dis missal for failure to ‘comply with state law. Consequeat!s the appeal to the state Supreme Court dealt only:with that subject and the majority opinion contained no reference -t any constitutional issue. But the dissent referred ‘to sais ‘ process of law” and a“ rigid adherene eto the federal cost tution (R. 31).; However, after the decision by the state: Supreme Court petitioner filed a petition for rehearing whic! specifically raised the constitutional issues here embraced it the “Questions Presented for Review” CR. O14). That peti ‘tion was entertained by the stage court, though denied with- out opinion (R. 15). , In his petition for rehearing petitioner pointed out that. the constitutional issues had not previously been prese nites to-the state Supreme Court “because they were unnecessary to a determination of the issues framed by the: deci ision of the. Court below” UR. 10). .Thereupon, petitioner raised three federal constitutional issues (R. 10-14) as set ‘forth in Appendix: D (infra, p. 36). + 6 Reasons for Granting the Writ — . 1. The decision of the court beJow is at variance with this Court's holdings f® Aonigsberg Vv. State Bar vo} California, - S53 UL S. 252, 366 0. 8. 36, and Beilan vi Board oj Public Education, 357 U.S. 399, in that in each of those cases this Court stressed: the need for proper notice or warming ante- cedent to action for failure to answer questions, » The decision of the court: below is at variance witT this Court's decisions in Stipmbery \. Caulifocnia, 283 UL S 359, Williams v. North Carolina, BIT USS. 287, Cramer v. United States, 825 U.S. 1. 36, n. 45. and Yates v. l niled States, 354.UL S. 298, in that a dismissal resting on two grounds has been sustained. although the second of these sholild not have been vonside red and there is nothing in the record to in@ggate whe ther the Se hook Board would oi dlis- missed had only the first of these’ been considered by 3. The decision of the court below that cae not entithad to the advice of counsel of, his own choice raises a far-reaching constitutional issue of gr eat public importane od which shguld be, and has not been, passed upon’ by. this Court. 4,5. The decision of this Court in Beilan, supra, in effect uphekl a dismissal for aalieged incompetency which actually resulted from the teacher's plea of his privilege be fore a Con: gressional committee, We respectfully suggest that the de: cision was wrong, that the views of the dissenting justices . are correct, and that the case should be overruled. . . The Superintendent of Se ‘hools proposed to’ inte rrogate eae about his loyalty. to the government 6f the United States (7a, 60a, Glay. The purpose of the inquiry was to determine whether his lack of loyalty was such as_ to adversely affect: his contractual right to be retained as a school teacher (3a). Petitioner could, therefore, reasonably conclude that the authority tinder which the Superintendent, punishable by disimissable (sec infra, pp. Oboe. proposed to question hinr was the. Pennsylvania Loyalty Act of 19351. That this was indeed a reasonable. conclusion is seen by the declaration of the Pennsvlvanne Supreme Court in Board of Public Education V. Intille, 400 Pa., 1, 22, 23: Board of Public Education Vv. Watsou, 401 Pa. 62, and by the deci- sions of the Courts of Common Pleas of Philadelphia County in this case and in the Beilan case. But, under that Act, a refusal to answer questions could, at most, result in a pre ceeding instituted to determine whether petitioner Was a “subversive person” as defined by that Act. For nowhere did that Act suggest that a refusal to answert without more, Was e At the same time, petitioner, having temirg aud beste sie ject to disinissal under the sjiecifie grounds of the Public School Code of 1949. might have assumed ‘that the imquiry related to his professional fitness, o1 “incompetency”. as set. forth in that Code (see infra, p. 31). But onee agains Ahiiat Code nowhere suggested that a refusal to answer wither nore, Was proof of ineoinpetency. Petitioner, consequently, was totally unaware Jiuler what spécifie authority the Superintendent was inquiring and had no idea that he was running any risk of dismiss] in refusing to answer the questions, The Superintendent gave oye RgeppeHt no reason to believe that the refusal to answer would lead to dismissal, either under the Lovalty Act or un- der the School Code. Given the statutory scheme Which con. - fronted petitioner and the resulting uncertainty of petition: ers position tinder either or both Acts regardless of his -re- sponse to the questions, we suggest that petitioner's loss of tenure, position, livelihood and status, for failure to answer, was without due process of law. : The Beilan cage, 386 Pa. 82, did of course later hold that the questions were put under the Public School Code of 1949 and that the failure to answer was incompeteney. But the total lack of proper notice. and warning nist be determined as of the time the inquiry was conducted, and cannot be cured by a subsequent holding of a state court. \ | - ‘ Moreover, in Beilan there was, as this Court noted i in up- holding the dismissal (357 U.S. at 1UN). a specifie warn ing of the possibility of dismissal for refusal to answer, a. warning wholly absent here. We stibmit such absence is. sheer denial of due process. . In the first Nonigsberg case, 353 U8. 252, this Court cat 259 and note 12) set aside denial of adinission.to the bar, based on alleged lack of good ¢ ‘harae ter, and pointed out that there had been no intimation that petitioner would be denied such membership merely because of hits failure to answer. And in the second case, 366 U.S. 36, the later action of the” examiners was upheld expressly on the ground that there had been adequate warning of the consequences of the refusal to answer (at. 48). There the Chairman oi ‘the Committers expressly stated, at the later hearing. that failure to answer “would arent our investigation and result in our failure to certify you.” - ; Here, on the other hand, “there wax no such warning. Thete was not even a statement that failure to answer would be considered evidence of incompeteney, All chat the Super: intendent did was to tell petitioner that “my future ¢ ourse of action would be determined by the results of the > conference” , (Sa). That was no more than the remarks by committee members in Konigsberg thai the failure to answer “would have some bearing” on the ultimate determination—which -this Court th mind insufficient warning (353 Ul S. at 259, n. 12). > We submit. therefore, that there was a total abse nee of notice or warning. This absence is partic ‘ularly signific ant because oftthe fact, that the inquiry: was in the area of lov- alty and that Pennsvivania had prescribed spec ial procedures - for dealing with such an issue. A teacher asked questions -of this kind mjght well have thought that he was running the risk of loyalty charges which he would be willing to run, believing he could vindicate himself. That such belief was not unreasonable is evidenced by the decisions of the Court of Common Pleas in Beilan and in this very case as well as by ; > - Pa 0 > the state Supreme Courts decision in Intille, supra, Cei- tainly there is nothing in this record to justify any inference that petitioner Was aware that he was going to beeline sod with incompetence and might be subject to dismissal. | sade r : such ¢ ire wtnstane Cs the dismissal was a deitial of due process. The issue is of ‘the greatest importance to all public sory: ants and warrants full consideration by this Contt. 2. The determination here being questioned was mune if the first instance by a lay board ou ‘Che daais of (Wo distite charges, one involving. refusal to answer the Superintendent. the other based ona plea of self-incrimination before a Cove gressional Committee (ay. The record shows noe separace vote faken ly the Board on either charge. With re Tr i either to guilt or punishment (109a). . It is clear, 6f course, that the dismissal coutd not be su tained on the anree charge: Slochower \. Board 0 Higher Education, $90.0. 8. 551 That has, indeed, been vecosnize § by the courts of Penney Iwania: Board of Public Education \. Intille, supra; Board 6) Public Education \. Waison. sapere, ) that in the instant case the Board conceded _ in, the Court ————— Common. Pleas that * “the second ul ground tor eLisstnaisesctt inne longer tenable” (134a). We contend that in line with the Stromberg see ‘other ; cases cifed above the Board's determination camel sti sued. In. those cases jury verdicts were Bet asidecheyause oe one | could a whether or not the verdicts re —— il cred. So here fo one can tel aes Board’ Seton rested on the second ground which it ate ho right to cou sider. We believe that the principle applicable to juries is equally Applicable to lay agencies such as Boards of Educa tion. . 7 @ * “€ ; 7 / We recognize. of course, that the same contention: Was, advanced in Beilan and_ rejected by the majority of the Court’ (3o7 U.S. at 402. note 3). though stressed da the Chief Justice in his dissent (id. $12)-—a — concurred in by 10 Justices BI: wk and Douglas. But we respectfully submit that the decision of the majority | rested: On a Ibisconiee tion of the applicable state law and that in any ease it is wrong atid should be overruled. The basis for the thajority’s position in Beilan appears to have been that the ultimate determination of guilt onc valid ground was made by the Court of Common Pleas’ Ieee wUNe, under the Pennsylvania statute, it exercises. “le ypvo” review: of dismissals. There are. however, two fallacies in that argument. In the first - place, the Court of Common Pleas can exere ise'™de nove” gurisdietion only at the instanes: of the dismissed teacher. The statute, 34 Purdon PLALszeb). states With respect to the appeal to that Court: “EE the pre: ; fessional employee agg@ieved shall so request in his petition, sie ‘hi hearing shall he de nove” ssee infra, p. a5). fia such a case the Court of Comnion Pleas acts inde pendently of the Board of Bdueation aiid fhust make findings of fact of its own, and se procedural errors befor’ the Board are irrele- vant. NSmrick vy. School District, AL Va, Super. 246, 14 A. 2d | soe; Lane's Appeal, IAL Pa. Super. 29, Pf A 257s. But neither here, nor in Beilan, did the ttac her request a de hove hearing. hor Wis one held. ‘In the second place, and more important. in both Beilan and the case at bar the Court of Common Pleas set aside the dismisgal. There -was, therefore, ny finding by that Court: that a disntissal had been justified on the only possibly valid ground, no, partic ipation by the Court in the dismissal Se there is no reason Why the general rule of Strombera, vt. al. should be disregarded. Per haek word should be® added about this Court(s state: ment (n. 3 at 402/ that “A dismissal can be sustained if the Court finds support for any one of the. multiple grounds re- lied upon by the dismissing school board,” with the citation of the Brown case, Lol Pal Super, 522, 30 4. 2b a: %. aff'd. 347 Pa. 418, 32 A. 2d 565. In that case the dismissal had been set aside by the state Superintendent. The Common Pleas had upheld him. On an appeal by the hoard the Supe- Nee rior Court reversed and the Supreme Court aftirmerd. The, only issue was whether or not ill health constituted ground for dismissal for incompetenes. There wars no Contention. rs here and in Beilan, that the school board had voted te dis miss, on the basis OL any matter it Was diet conpeient te * consider. We suggest. therefore, that this @oust’s statement i Beilan should be overruled and the general rule applies! Surely the issue is an importa) one and ix of general interes: in connection with the proceedings of lay boards. *- e _ | ee . 3. trconsidering the extent ta en person inthe sii afion in which petitioner found hiisell bs entithed to th sistance of counsel, it ix important to keep certain matters in-ming. Pennsylvania's Loyalty, Mt required petitioner te tile an oath with respert to his Lien current membershits ot the Communist Party ©P. L. 1926 of Dec. 22. Mbe. Pets tioner had filed such an oayh. denying wetbershiy ws or its date. March 7. 1952 tFSa. 67a). Thus when. at the first _ interview, petitioner wax asked) abou, maetaberstip pies poten to that, namely, in January iM52 (vat. he quite naturally was concerned, expecially as Dr Hoyer verted Deinis these Teer Tecaed information that petitioner was a Communi=t as bate as May 1952 (G7as. It was natiral. therefore, that petitioner shel: feel that his lovalty, was being inquired inte. Petitioner then consulted counsel with reference to the only question agked at the first interview and then fuswered that question (Say. At the second interview te Hew ques tious were-actually asked, but ‘petitioner requested that general tenor of further questions be indicated xo that he . - could consult counsel about them (Sa. BSae. and this wos refused (a, Gay. Tt ix important to note that the Superin tendent was accompanied, by the board's attorney re The Court of Common Pleas on the dvexis of the foregeins ruled that petitioner's second request to consult counsel was reasonable—that indeed it could not “realistically” be sid that petitioner had refused to answer at all (1400 f iZ In the Supreme Court the issue of coupsel was brushed ‘aside by the statement that petitioner was not on trial but was merely being “questioned by his employer to determine ° his competency” (R. 26) ignoring the fact that at ne time did the Superintendent in any way intimate to petitioner that his competency, as distinguished from his loyalty, was in jasue. : © On the reasonable assumption that loyalty was the issue petitioner quite properly would be concerned with the impli- cations and consequences of answers which he might give. It was Concern over these mytters which prompted his plea of the privilege before the Hage Committee 20a, 21a, 25a). That plea, of course, “war WW available to him before the Superintendent.* He might well be troubled, however, over: the extent to which answers he might give to questions could he used-against hin in other proceedings and, since he was not entitled to have counsel appear with him hefore the Su- perintendent (37a), he at least wanted the right to consult counsel outside the Superintendent's office.- ee : ’ Due process should require that a person faced + ith the delicate situation in which petitioner found himself should have the benefit of legal advice before he can be dismissed for failure to answer questions that were wat even asked and in the absence of any warning that such failure would be con- sidered either evidence of ‘neompetency or ground for dis- ‘missal, : : This Court has never had occasion to’ consider the precise extent to which a person may be denied access to counsel of his own choice 4n a situation other than a criminal trial. That he is entitled to such protection in a.state criminal ease is, of course, clear: Chandler v. Fretag, 348 U. 8.3 cited with approval in Jn Re- Groban, 352 UL 8. 338003832; BR yivolds ¥ Cochran, 363 U. 8. 525. : . * Even if sucha plea could have been interposed it would proba- bly have resulted. in charges and disnissal oa, distuissal this Court amight have sustained under Cohen v. Hurley, 366 U.S. 117. . ; ; ae ° ~ +4 ‘Groban grew out of Ohio's statute Which authorized a fire - marshall to conduct an investigation. This Court, bya Vote - of 5 to 4, upheld the exclusion of counsel on the ground thea the proceeding was an investigation, not a prosecution, and that the witness could plead his privilege against self-inerime ination. That xafeguard was, however, tot available to peti- tioner when questioned by the Superintendent. The spirit underlying the Groban decision would seem to call for a hold- ing in the case at bay that the continued assistance of coun: * , and future trust. Both are commonly inquired into in deier- mining fitness (or both, high. and low positions in private industry and are not less relevant in public einployment.” Bae muck of the argument of counsel for appellee: pxo- coeds upon the unwarranted assumption that appellee _ charged with subversion. . oa appellee had been charged with subversion, his reliance upon the Fifth Amendment at, the Congressional hearing would not have established his disloyalty. But the charge here was, got disloyalty but in- competency, based’ on his refysal to respond to ihquiry per- taining to his fitness... — ie “, |. The Superintendent had the power, if not indeed the duty, to make the inquiry, and appellée had the duty to cooperate by answering freely and frankly. His defiant con-— duct in refusing to respond justified his dismissal oi the ground of incompetency.” ‘ : The lower Court held that. the later opinions of this * Court in Board of Public Education v. Intille, 401 Pa. 1, and Board of Pubtic Education V. Watson, 101 Pa. 62. overruled Beilan. This was error. Beilan involved questions pro- pounded by the teacher's: administrative superior, while in Intille and Watson the questions concerning the teachers loyalty. and>his Communistie activities—which in each case the teacher refused to answer—were propounded by a Con- vressional investigating committee. That distinction —be- tween, Beilan and the Jntille and Watson cases clearly ap- peared throughout the Court's opinion. In-the Jufille case. _the Court pertinently said : tee “The three appellants (Angeline Intille, Thomas Deacon ‘and Sadie T. Atkinson) were teachers in,the public schools of Philadeiphia until the Spring of 1954. when they were dis- missed by the Board of Public Education of the School Dis: trict on a charge of ‘incompetency’, preferred by Dr. Louis VP. Hoyer, Superintendent of the Philadelphia public schools. In each case, the dismissal was based solely on the teacher's 4 | "i Appendiar A a Raa refusal to alswer certain questions propounded by a. Sub- committee’ dafso Known as the Velde Cofmmitter so: the UnmAmerican Activities Commitice of the House of Repre sentatives concerning the witness’ alleged membership in and association with the Communist Party. . “ ~The Superintendent based his finding of ieome- petency solely upon the fact that the appellanis had reiused to answer questions asked tiem by the Congressional Com mittee in reliance of their pleas of privilege Windermtie Gitta Amendment’ against self-incerimination. ~ .. At no time did any, of the appellants: reise to answer ahy question asked them by their administrative superior: .. . atin ae “The three co-ordmate courts below each sustained, the order of distissal before it in the mistaken belies ibaa the question involved was ruled adversely to the appellants eon- tention by this court's decision in. Board of Public Education Schoot District of Philadelphia v. Beilan, 586 Pa. 2. 12% .A. Yd B27, aff'd 357 U.S. 399. The error in that conclusion is patent. What the Board of Education sought to accomplish in these cases goes far beyond anything that was either decided or implied by the opinion for this court in Beilaws case. His adjudged incompetency resided exclusively cit tae fact that he had refused to answer questions of his adminis: trative siperior { Superintendent Hoyer) concerning ME Lers deemed to have bearing on his qualifications as a teachef in the public schools of Phijadelphia, and not that he had re: fused to answer questions of a Congressional Comittee. That such was the ratio decidendt in the Beilan case is nil open to question... cant ‘ % “The appellee Board is well aware of the distinetion yea. tween Beilan and the present cases. In the Board's brief on these appeals. it is stated that ‘The present cases differ from the Beilan case in that the teacher's refusal to answer ques * Italics ours. o . >) : Appendiz A tions occurred before a Congressional Committee rather than before his administrative superior: . . .” Justice Cohen in his concurring opinion in ithe Tatille case clearly set out the sole issue before the Court in that case: *. . 2the only legal problem with which we are con- cerned and the. only ‘question briefed and orally argued on these appeals is whether a public selivol teacher is ‘incompe- tent’ if the sole evidence of his alleged incompetency is that he availed himself of the privileges of the Federal Constitu-— tion in a Federal proceeding.. This has been answered most adequately by the opinion for the Court.” * These cases, we repeat, hold that the refusal of a teacher to answer such questions before a ¢ ‘ongressional Committee on the grounds of the First or Fifth Amendments to the Federal Constitu- tion does not of itself render the teacher “incompetent”. However, it is still the law of Pennsylvania that the -vefusal by a teacher to. answer relevant {juestions concerning his ‘loyalty prepounded by his administrative superior is ground for a finding of incompetency. under the tenure provisions of the Public School Code. . Appellee contends that since the questions dealt with, his loyalty, the procedures provided for dismissal under the Pechan Act** are mandatory-and exclusive. - We repeat, ap- pellee was not dismissed on the ground of aati he was dismised on the ground of incompetency weause Of insub- ordination and lack of frankness, candor and. intellectual honesty. ‘The fallacy of appellee's position is that he believes " and contends that any question pertaining to or within the area of Communism or subversive activities or loyalty to our ieacraiee A a Sh ee .* Thus any language in the /ntille and Watson cases which fails to distinguis between the situation where the questions are pro- pounded by an alninistrative superior and those situations where the questions are propounded by a Congressional Committee was dicta. To avoid any further confusion we disavow such dicta and lint the opinton in those cases to the questions which were there involved. . #* 65 PS. § 211 et seq. ae A ppendian A ; Country is barred unless bronght and propounded under the Pechan Act. That gives to the word “Preampetent boo tae row and restricted a meaning, and to the Pechan AXet toe broad a meaning, and is specifically refuted hy the (Court's opinion in Board of Educ ation V. Beilan, supra. = - Mr. Justice Frankfurter’s concurring opinion ca Beilaw \. Board of Public Education, 397 U.S. 399. further refutes appellee's contention when it declares at page 1h The cservices Of two public employees have been terminated be: cause of their refusals to answer questions relevant. or met obviously irrelevant, to an inquiry by their Supervisors info their depe ndability. When these Wo employees were de & charged, they -were hot labeled ‘disloyal They were dis- charged because governmental authorities, like other employ ers, sought to satisfy themselves of the dependability of em ployees in relation to their duties. Accordingly, they made . inquiries that. it is not contradicted, could in and of them selves be made. These inquiries were balked. The services of the empluvees were therefore herminated, ‘Ss “Because the specific questions put to these cnplovees . vere part of a.general inquiry relating to what is compendL ously called subversion and to conduct that on due proof tay amount to disloyalty, every part of the process of inept is given the attribute of an inquiry into disloyalty amd every resulting severance from service is deemed a finding of lis: loyalty. The argument runs, in essence, that because such an inquiry may in certain iastanees lead to a determination of disloyalty, the refusal to answer any questions in this process and dismissal therefor themselves establish disloyalty. To make such an attribution to a State, to draw such an infer ence from gy carefully limited exercise of state power, te dis: alow state action -lecsatise there are those who may draw iNerences that the State itself has net drawn and has avoited drawing. is a curbing of the Stites through tha Four: teenth Winerdment that makes of that Amendinen, ii ist re ment of general censorship by this Court of state aetion.” .- __ Any teather who refuses-te-answerethe ‘Superis 24 Appendia A a Btn ; Furthermore, appellee’s argument is clearly unrealistic. cerning questions pertaining to whether he was a sex pervert,” ora purveyor of narcotics, or has commiitted a robbery, arson. rape, or murder, could and should be‘dismissed as a teacher. | Rut Communism is far worse. The shove jmentioned crimes clearly and obviously relate to a teacher’s fitness and coni- petency, yet the COMMISSION of any one-of those erinies would injure only one or a very few persons. On the other hand, Communism makes a teacher Gar more untii and incompetent than any of the above mehtioned crimes because it: would destroy and enslave not one or a few persons, but over one hundred and fifty million Americans. Communism by its teachings and even more strikingly by its acts and deeds ix the mortal enemy of our Country. Commutiism is not merely a ‘political belief like the peaceful advocacy of somialisin, or democracy, or republicanism, or any share-the-wealth plan. or the abolition of Congress and the substitution of an oll- garchy or of a dictatorship. Communism is a world wide ~pevolttionary_ movement to overthrow by force, violence, sub version, sabotage, strikes, insurrections, ~revolition and. whenever necessary, war, the Government of every other na- tion and to establish an atheistic Communist. dictatorship therein. Obviously, a teacher who refuses to answer his Superintendent’s questions pertaining to his present and past Communistic membership. activities Or associations, is unfit and incompetent to bea teacher of our youth. On the second ixsue involved, the court below held that even if the Beilan case is good law, Soler did answer the “sample question and did not, refuse to answer similar ques- tions. What he did was. as above stated, to ask that before he was required to answer sitpilar questions he be permit- ted the opportunity of consulting counsel, That request — itendent cou, 0 Appendir A Was petemnd. med Noley thew refuse do te ansiwes turthe 1 ques tions selating be his lowalty. : Sd Sater aa yor on trial for a criminal offe tise oot a Veehan Act offense nor was he bet are sugges ional jbestigating committer, He was here Leing questioned by Jos adinities trative superion in-private. Te has ne rigghn to be repre ~ rifend bey copnsel or te deimieid a bist of questions te i asked. whew questioned hy new emplones fon determine bes com pole ney. To vomtened asst a teacher eat isis? thet at professional interview with bis supeties chal Ne cenlacted ouly on Ue teachers fevias is iepeasccabele ated igtnetes ite cfiec tually wegdtes: ‘the relationship.bet Ween beac heere satu sui perior. Soler. nefusal Ww aiaver bis aebnininsint coat ive Appendix D Excerpt From Petition for Rehearing Before Supreme Court of Pennsylvania ILI. The dismissal of appellee was in Violation of the Due Process Clause of the Fourteenth Amendment to the Federal Constitution in that the record does not show that he was dismissed solely for failure to answer the Super- intendent’s questions. * - e * & IV. The dismissal of appellee was in violation of the Due Process Clause of the Fourteenth Amendment to the Fedéral! Constitution in that appellee did not receive reasonable - notice that his failure to answer would be considered evi: dence of scp senna A under thé Teachers’ Tenure Act of | 1949. eo * * V. “The dismissal of appellee is in vislation of the Due. Process Clause of the Fourteenth Amendment to the Federal Constitution since he was deprived of the right to counsel. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0317%3A2. Public record. Not legal advice.