Respondents Brief in Opposition — Litteral v. Indemnity Insurance Co. of North America

ee D4 , Office Supreme Court, U.S.

“RAR Y r T ‘FILED

URT. U, : :

: 7 ” ~ MAY 28° 1962

+ JOHN F. DAVIS, ‘CLERK

Supreme Court of the United Statés

October Term, 1961.

No. 911.

WILLIAM G. SOLER, '

. Petitioner,

v, i a

BOARD OF PUBLIC EDUCATION,

SCHOOL DISTRICT OF PHILADELPHIA,

. f Respondent.

"On Petition for Gertiorari to the Supreme Court

of Pennsylvania.

BRIEF FOR RESPONDENT IN OPPOSITION.

Epwarp, B. Soxen,

Zi1st Street and The Parkway, .

Philadelphia, Pa,

Attorney for Respondent.

International, 711 So. S0th St., Phila. 43, Pa.

Page

Orinions Betow ....... Lhabaabaswusveeuse wns shusssedane 1

: ™™

JUMIBINCTION 6.0. ccc cccc recor cecccccccccoccesccecoes ]

“Ouvestions PResentep .......... edapevaderhedehusbove ss 2

CONSTITUTIONAL AND Stsiutory Provisions INvotvep .... 3

‘

USTATEMENT ...... Cecccccccers tte ete e eens eens enrages 4

PUUMUEMINE- oi co daccdcccccdp¥ascde didvospigsbecgeagncess 8

|. Petitioner Did Not Raise in the State Court the Con-

stitutional Questions of Which He Now Seeks Re-

view; and the State Court-Did Not Decide the Con-

stitutional Questions ......... Poascoescvegocosas 8

Il. The Constitutional Questions Raised by Petitioner Are

POR 050s ce ctccconpsccccsete Pr rorr. he oe

1. The Contention That Petitioner Was Not Noti-

fied of the Authority Under Which He Was

| Being Questioned or Warned That Refusal to

” Answer Might Kesult in Dismissal Does Not

Present a Substantial Constitational Question 12

2. The Contention That the Decision of the School

Board to Dismiss Petitioner Kested.on Both

His Refusal to Answer the Superintendent and

on His Plea of Self-Incrimination Before a

Congressional Committee Does Not Present a

- Substantial Constitutional Question ......... 14

3. The Contention That the Dismissal for Incom-

‘ vetency Violate Due Process When Based of

the Teacher's Statement That He Would Not

Answer (Juestions of His Superior Unless

Given the Opportunity to Consult Counsel

- About Them Does Not Kaise a Substantial -

Constitutional Question ........... av ae rk 17 -

INDEX (Continued).

Page

4. The Contention That Petitioner's Dismissal Was

Actually Motivated by His Plea of Self-

Incrimination Before a Congressional Commit-

* tee Does Not Raise a Substantial Constitutional

Lt i o eaesasraskaawieneresees 19

5. The Contention That Beilan v. Board of Public

Education, 357 U. S. 399 (1958), Should Be

Overruled Does Not Raise. a Substantial

Question *....... apieees ge, Sepenpnes ee

CONCLUSION ...... Raine Mae Shean decinnses daees ee- ian ae

é

CITATIONS. y

Cases.

_ Page

Albert Appeal, 372 Pa. 13°22; 92 A. 2d 663, 667 (1952)":.-. 16

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

2, 8, 15, 16, 17. 19, 20

Board of Public Fducation v. Beilan, 386 Pa. 82, 125 A. 2d 327

OEE eee Pentre Aree eres 6,8,9;12, 14,15

Board of Public Education v. Intille, 401 Pa. 1, 163 A. 2d 420

(1960) ...... Tp ieee pee ee eee 6,14

Board pf Public Mducation ¥. Watson, 401 Va. 62, 163 A. 2d

ON con sicee cede eee cerareenean ee

Brown Case, ; 347 Va. 418, 32 A. 2d 565 (1943); affirming 151

Pa. Seifel $22, 30 N. 24726 0000 02Feeeee ee eegeeeeees 17

Commonweafth v. Crue, 356 Pa, 409,,474;.9 A. 2d 408, 411

CN. oo bevy eehecaraenues ieee Pepe py oe 16

Herndon v. Georgia, 295 U.S. 411 (1935) .,..---. a ey 10

In re" Dorrance’s Estate, 309 Pat 151, 163 A. 303 (1932); cer-

tiorari denied 287 US S. &@ (1932); per curiam opinion

on Petition for Keargument 172 A. 900 (1933); certiorari ne

" Getta 26 OU, S. GF LGN) ccc ccc ce ctesssenAbses 11

Kopka v. Bell Telephone Company of Pennsylvania, 371 Pa.

441, 449; 91° A, 2d 232, 235 (N92) oo eee eee ee eee eees 11

Lerner v. Casey, 357 U.S. 468 (1958) ...... hee. Pete 20

McCann v. Vhiladelphia Fairfax — 344 Pa. 636, 26 A. 2d

SOO (IDEZ) ‘2 ocr once doce ce Mrergcssetccsccsscesnsbes 11

Nelson v. County of Los Angeles, 362 U.S. 1,7 (1900) . 20

Radio, Station WOW v. Johnson, 326 U.S. 120 (1945) . 10

Stromberg v. California, 283 U. S. 359 (1931) .......22065 16

CITATIONS (Continued).

Authorities.

Pape

Constitution of the United States, Amendment XIV. ..... 0.5, 11314

Judicial Code of the United States, § 1257; 28 U. 5. C. § 1257

; . 1, 3,8, 10+

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

as amended : of F

$§ 1122 et seq., 24 Purdon’s Pa. Stat. Ann. §§ 11-1122

Wb OO din cs son cohs pp Rue ambcdes eae en yore eee 4

§-1127, 24 Purdon’s Pa. Stat. Ann. § >. eRe 5

§ 1132, 24 -Purdon’s Pa. Stat Ann. § Ra Spgs 6, 16)

“Rules of the Supreme Court of Pennsylvania: xh

le TB na vv arses snacaes a eedspaneetiae genes See

Mere eed eawlcnes hanbane 4 cvkcoes pus eae

ke ener eee rey cay teas eis saas phere PRES a

‘

IN THE

Supreme Court of the United States.

Qeaonen Term, D961,

WILLLAM G. SOLER,” ‘

Petitioner,

P " >,

BOARD OF PUBLIC: EDUCATION,

SCHOOL. DISTRICT OF P PULL ADELPHIA,

: i Re ‘sponde nt:

ne ae moni

BRIEF FOR: RESPONDENT IN OPPOSITION.

OPINIONS BELOW. .

The Opinions in the Supreme Court of Pennsylvania

are appended to the Petition for Certiorari.

J URISDICTION.

Petitioner dias tivoked the jurisdiction of this Court

under Tithe 28 U.S. Ci, Seetion 1257,

Respondent submits that no question under the Con-

stitution of the United States is raised by the dismissal of

/a public School teacher on the statutory ground of **in-

competeney ’ under the teachers’ tenure laws of Pennsyl-

Vania after due notice of charges and hearing thereon,

where the dismissal was based on the teacher's refusal to

answer proper-questions of. his Superintendeat, |

The decision of the Pennsylvania Supreme Court: wis

“based on adequate non-federal grounds, =

The petitioner did not raise in the Pe nus¥ivdnia courts .

the constitutional questions urged in the Petition for Cer:

tiorari, and the Pennsylvania Courts did not. dec idle the

constitutional questions.

“

on

2 Brief for Respondent in Opposition

QUESTIONS PRESENTED.

1. Where the refusal of a teacher to answer pertinent

questions of his Superintendent constitutes incompetency

and ground for dismissal under state law, and there is “sie

dence that the teacher knew of the importance of the St

intendent’s inquiry and no evidence that the Fe

ent explicitly warned the teacher that he might be dis-

missed if he failed to answer, was it a detial of value proc-

ess‘to dismiss the teacher for refusal to answer?

2. Where ‘a teacher. wasscharged with incompeteney in

two separate charges involving different facts and the hear-

- ing Board found that the charges were sustained and dis-

missed the teacher, was It a denial of dae process fer the

‘state Supreme Court to sustain the distnissal on the butsis*

that one of the charges was ample to sustain the action of

the Board?

3. Was it a denial of due process to find that a teacher

was in ompetent for refusal to answer juestions of his

Superintendent when the teacher informed the Superin-

tendent that he would not answeroany questions unless he

was provided with all the questions so that he could take

them to counsel?

4. Where a Board has dismissed a teacher on a valid

ground which the state Supreme Court has sustained, will

this Court determine that the action of the Board Wits moti

vated by an invalid ground?

_ Should Be ilan +. Board of Public Education. 357

U. 8. 999 (1958), be overruled?

- . } a) . ;

Brit tor Responds ut in Opposition 3

CONSTITUTIONAL AND. STATUTORY PROVISIONS

INVOLVED.

The die process clause of the Fourteenth Amendment

of the Constitution is set forth inthe Petition for Certiorari.

Section MOT of the Judicial Code of the United States,

8 ee Ue ore provides :

“Pinal judgments or deerees rendered by the

highest court of & State in whieh a decision-could be

had omiay 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

claimed ander the Comstitution, treaties or statutes of,

or commission held or authority exercised under, the’

Lisited) States.”’

*

+ Brief for Respondent im Opposition

STATEMENT.

This is a proceeding under the tenure provisions of

the Public School Code of the Commonyealth of Pennsyl

vania, Act of March 10, 1949, P. [.. 30, $$ 1122 et seq., as

amended, 24 Purdon’s Pa. Stat. Ann >” 11-1129 et seq., dis-

missing a public school teacher.* : oS

The Board of Public Kducation of the School District

of Philadelphia dismissed the petitioner, after a hearing

and due notice of charges, on the statutory ground of in

s

competency. The charge was based on the refusal of peti-

tioner to answer questions concerning alleged Communist

affiliations in a professional interview with the Superin-

tendent of Schools of the School Dist rict of Philadelphia.

At the written request of the Sfiperintendent of

Schools, petitioner reported to the Superintendent's office

for a professional conference on May 28, 1955. At this con-

ference, the Superintendent stated to the Metitioner that he

had information in his possession about which he would like

to ask petitioner some questions, @ id that the material in

his possession had a bearing on petitioner's, lovalty (R.

7a). The Superintendent then asked the petitioner’ a sample

question based on the information he had, whether peti-

tioner had been an active Comminnist i January 1992.

Petitioner said that he Would not. answer that question

without advice of counsel, and the Supeyintendent agreed

to give him an opportunity to consult counsel (R. Ta-Sa). -

Petitioner inquired as to whether the Snperintend-

ent’s conference with him, at that time consisted of charges

against him. The. Superintendent told) him that he was

not bringing, any charges at that time and that his: fature

course of action would be determined by the resulty of the.

conference (R. Sa). :

A second inferview took place on June 19, 1952in the

Superintendent’s office, after petitioner had consulted coun

sel. At this time, petitioner said that he was nota member

Brft ter Re sponds nieve Opposition os

>

of the Communist Party im January 1952. but that he would

not answer amy simiker questions unless the Superintendent

would provide him with all the questions which he intended

to ask, so that he could take them to counsel for considera:

tion (ROSa). “Phe Sfperintendent declined to give the ques:

tions to petitioner, becanse it was ie professional conference

* and was not achearing GR. 38a). Petitioner adhered to his |

refusal to answer any questions, ands ne further questions

were asked, Petitioner was not frank or candid tn his man

ner and was uncooperative with the Superintendent (Rt. ‘a

10a). The general nature of the questions had been -made

clear to the petitioner at “the previous interview (R. 60a

Gla). “f

Petitioner .was formally charged with incomprtency

based on his refusal te answer. the Superintendent of

Schools and, additionally, with inconipeteney hased on re-

fusal to answer questions before a Congressional Commit.

tee on November 17, 153 under a claim of the privilege

of the Fifth Amendment. . .

/ The ‘Board of Publie Education conducted a formal

hearing on the charges as required by - 1127 of the Public

School Code of 149 (24 Purdon’s Pa. Stat. Ann. \-11-

1127). The hearing was private at the request of the peti-

tioner. At the hearing, the Superintendent testified con-

cerning his interviews with petitioner and petitioner’s re-

+ fusal to answer questions. * :

Petitioner testified at the hearing before the. Board

that the guestion which the Superintendent asked him at

“the first interview was whether he had been a Communist

in May, 1952. which he snbseqihently answered in the nega-

tive. Tle said that he had signed the Pennsylvania Loyalty

Oath in- March or April of oz in‘good faith (R. 67a).

He. testified that he would be willing to answer question=

regarding activities subseqtiont to ‘the date ef his Loyalty

Oath. but wonld not answer qnestions as to activities prior

to the date of his takine-that Oath (R. 76a-77a). Te had

. °

e e

.

6 Brief for Respondent in Opposition

been advised by counl that the ‘Supe rinte ‘adent did not

have the right to ask him such questions (R. 78a).

The Board of Public Education found that the charges

against the petitioner were sustained and ordered his dis-

missal (R. 109a). Petitioner appealed to the Superin-

~ tendent of Public Instrii¢etion of the ‘Commonwealth of

Pennsylvania, as provided by the Publie School ¢ ‘ode, and —

the decision of the Board was affirmed. As further pro-

vided by the Public School Code, petitioner appealed: to the

_ Court of Common Pleas of Philadelphia County. On: this

appeal, petitioner did pot request a hearing de nore as -

permitted on such an appeal by § 1132 of the Publie School ~

Code, 24 Purdon’s Pa. Stat: Ann. AS 11-1132. He filed with

his appeal his Exceptions to the adjudication of the state

Superintendent of Public Instruction, extraets from which

_ are appended fo the Petition for Certiorari (Appendix C,

pp. 34-35), and his appeal was heard on the record of his -

_hearing before the Board of Publie Education.

The Court of Common Pleas No. 1 of Philadelphia

County sustained petitioner’s appeal and set aside the dis-

missal on the grounds that (1) the Supreme Court of Penn-

sylvania, in Board of Public Education v. Intille, 401 Pa.

— 1, 163 A. 2d 420 (1960) and Board of Public Educatian v.

Watson, 401 Pa. 62, 163 A. 2d 60 (1960) had overruled its

prior decision in Board of Public Education.r. Beilan, 336

Pa. 82, 125 A. 2d 327 (1956), and that a feacher could not °

be-discharged for incompetency under the Publie School

Code for refusal to answer. questions relating to possible

disloyalty, and,(2) the present petitioner had -not refused

to answer specific questions (R. 139a-140a). The Board of

Public Education appealed to the Supreme Court of Penn-

sylvania, which held-that its decision in the Bean case was

still the law of Pennsylvania and had not been overruled

by the Intille or Watson cases, that petitioner had in fact

refused to answer questions relating to his loyalty, and that

the dismissal of petitioner on the ground of incompetency

-under the Public School Code was warranted. The order

/

Brief for Respondent in Opposition — 7

of the Court of Common Pleas was reversed and petitioner’s

dismissal was sustained.

- After the decision of the Supreme Court of Pennsyl-

vania and after the record had been returned to the ‘Court,

of Common Pleas, petitioner filed with the Supreme Court

of Pennsylvania a Petition for Leave to File a Petition for

Reargument and a Petition for Reargument. The Supreme

Court of Pennsylvania granted the Petition for Leave to

File-a Petition for Reargument, and,in the same order

denied Petition for Reargument, without opinion.

_ ee Brief for Respondent in Opposition.

ARGUMENT.

I. Petitioner Did Not Raise in the State Court the Constitu-

tional Questions of Which He Now Seeks Review, and

the State Court Did Not Decide the Constitutional

It is submitted that this Court is without jurisdiction

under 28 U.S. C. 4 1257, because the ‘‘title, right, privilege

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

set up or claimed under the Constitution ... of . . . the

United States’? in the Pennsylvania courts.

It is apparent from the statement’ of Questions ~Pre-

sented for Review and The Manner in Which the Federal

Questions Were Raised, ,as set forth in’ the Petition for

Certiorari (pp. 2, 5) that petitioner did not raise in the

state courts the particular constitutional questions which he

how urges as meriting review and consideration by this

Court. It is equally apparent from examination of the

Opinion of the Supreme Court of Pennsylvania (Petition

for Certiorari, pp. 15-25), that that Court did not consider

and did not decide any questions under the Constitution of

the United States.

The principal questions raised in the Supreme Court

of Pennsyivania were (1) whether its decision in Board of

Public Education v. Beilan, 386 Pa. 82, 125 A. 2d 327

(1956) ! was stil! the law of Pennsylvania, and (2) whether

the petitioner could be held to be ‘‘incompetent’’ within the

meaning which the Beilan ease had given to that term, when

_he had declined to answer any further questions unless he

was permitted to show them to counsel and that permission

had been refused by the Suggrintendent. Petitioner did not

argue either of these questions as a matter of any right

arising under the Federal Constitution. The Supreme

Court of Pennsylvania resolved both issues against peti-

1. Affirmed by this Court in Beilan v. Board of Public Educa-

tion, 357 U. S. 399 (1958). :

Brief for Respondent in Opposition +

tioner, holding that its decision in the Beilan case had not

been overruled and was still the law of Pennsylvania, and

that petitioner was incompetent in that he had refused to

answer questions of his Superintendent without justifica- |

tion. In so deciding, the Pennsylvania Supreme Court did

not decide any Federal Constitutional question, and none

had been presented to it for decision.

Petitioner points to the Exceptions whic h he filed with

his appeal to the Court of Common Pleas (Petition for Cer-

tiorari, pp. 34-35), as indication that he raised constitutional

issues in the lower court. Examination of these gxtracts

from bis appeal to the Court of Common Pleas reveals that

the questions of due process of law which were there re-

ferred to were not the questions on -which petitioner now

seeks review.

Petitioner relies mainly on hix Petition for Reargument

in the Supreme Court of Pennsylvania, to show that he

raised the constitutional questions. The Petition for Cer-

fierari states, That petition was entertained by the state

court, though denied without opinion” ( Petition for Cer-

tiorart, p. 5).

The petitioner’s Petition for Reargument (or rehear-

ing) was not ‘‘entertained’’ by the Supreme Court of Penn-

sylvania, except in the sense that petifioner was granted an

extension«f time in which to file it. The Petition for Re-

argument was denied and no reargument or rehearing was

held. j

After the Supreme Court's decision and after the

record had been returned to the Court below, petitioner

filel a Petition for Leave to File a Petitron for Reargu-

ment. The foliowing order was entered by the Supreme

Court of Pennsylvania, Per Curiam, on February 6, 1962;

_"**Petition for leave to file a petition for reargu-

ment granted, Petition for reargument denied."

. This Court has held that the raising of a constitutional

question for the first time on a petition for rehearing ad-

” A

~

10 Brief for Respondent in Opposition

‘dressed to the state Supreme Court is not sufficient to give

this Court jurisdiction under 28 U. 8S. C. § 1297, unless the

state Supreme Court actually entertains the petition for

rehearing or reargument aml considers and decides the-

constitutional question. ’

Radeo Station WOW v. Johnson, 326 U.S. 120

(1945) ; ; :

Herndon v. Georgia, 295 U. S. 441 (1935)"

It is clear that the Supreme Court of Pennsylvania did

not ‘‘entertain’’ the Petition for Reargument in this sense,

by merely permitting it to be filed and then denying reargu-

ment. , | ae rs

Rule 71 of the Supreme Court of .Pennsylvania. pro-

vides: — Sete are ,

‘Petitions for rearguments must be made before

the record ix returned t6 the court below, unless this

Cou.t, upon cause shown, shall extend the time; and

must specify particularly the point supposed to have

been overlooked or misapprehended by the Court (with

a proper reference to the portions of the original Brief

or Record relied on to establish the fact alleged) the

- reasons for a rehearing, and arguments in favor there-

of. Attached thereto shall be a capy of all the opinions |

filed in the case; and, accompanying it, a copy of all

the Briefs used in the argument of the case.’’

Petitioner is not in a position to complain that he had

no prior opportunity to raise the constitutional a.

in-the Pennsylvania Supreme Court, which he attempted to

raise by Petition for Reargument and now desires to raise

by Petition for Certiorari. The fact that petitioner was

the appellee in the Supreme Conrt of Pennsylvania did not ~

prevent him from raising these issues as alternate grounds

for affrmaace. The Supreme Court of Pennsylvania will

‘affirm a judgment appealed to it on alternate grounds, even

; 7.

b

Brief for Respond nt-in Opposition 11

though they are not the grounds relied on in the Opinion of

the Court below,

Kopka rv. Bell TAlephone Company of Pennsyl-

raniat 371 Pa. 441, 449; 91 AL 2d 252, 235

(1952); ae a |

McCann ve. Philadelphia Fairfax Corp., d4A¥ Pa.

* 636, 26 A. 2d 540 (1942). :

The Supreme Court of Pennsylvania requires the brief

of an appellant to.contain a Statement of Questions In-

-yolved. With respect to appellee's brief, Rule 56 of the

— Supreme Court of Pennsylvania provides:

** Appellee’s Brief need contain only his argument, .

but he may add a counter-history of the case and a

counter-statement of the questions involved; unless he

does so, or in his Brief otherwise challenges the history

of the case or ‘question=ayolved stated by appellant,

it will be assumed he is satisfied with them, .or with

such parts of them as remain unchallenged.”? ~ .

Rule 59 .° the Stipreme Court of Pennsylvania pre-

scribes the form of the Statement of Questions Tavolved

and. further states that ‘‘ordinarily no. point will be eon-

sidered whichis not thus set forth in or necessarily sug-

gested by the statement of questions involved.”” In qu re

Dorrance’s. Estate, 309 Pa. 151, 163 A. 303 (1932), cer-

tiorari was. denied by this Court, 287 U.S. 660 (1952):

Thereafter, the Pennsylvania Supreme Court ruled on a. *

Petition for Reargument with a short Per Curiam Opinion

in which it stated that the Court will not pass on qtestions

of due process mder the Fgurteenth Amendment which are

raised in a Petition for Reargument when they are not the

theory on which the case was argued, that no federal ques-

tion involved was presented in the reeord or briefs or oral

argument, and none was considered or decided. 172 A. 900

(1933). Certiorari was again denied by this Court, 288

U.S. 617 (1935). ;

o-

: 2

oe

a } ;

rane ee

js re a : e ft ° i . .

12”: Brief for Respondent in. Opposition —

‘Thetefore, thé denial of the present petitioner’s Peti-

| “tion afr Reargument’ by the Supreme Court of Pennsy!-

' €ania rested on adequate state grounds. | ee

“Petitioner, cannot claim.that the decision of the Su-

‘preme Court of- Penysylvania was such 4 surprise to him

that he had no fdeqtate opportunity to raise the cgnstitu-

tional issues. It was surely foreseeable that the*Pennsyl- |

vania Supreme Court would adhere to its previously ex~ |

pressed rule of Board of Public Education v. Beilan, 386

Pa. 82, 125 A. 2d 827 (1956) ¢ decide.the question of the

state law against ‘petitioner as“It did. “Petitioner was the

original appellant frgm his dismissal by the Board-of Public

Education ‘and from thezaction of the.state Superintendent

- of Publie Instractionggffirming that dismissal. On appeal

from the adjudication of the state Superintendent to the

Court of Common Pleas, petitioner, filed Exceptions, ex-

~ tracts from which are printed Jn the Petition for Certiorari

i ° or: : . 5 ie *,e _@ .

(pp..34-35). In these, Exceptions, petitioner raised constt-

tutional questions of due process, ‘which ares not the same

as the-constitutional questions on which he now seeks’ re-

view and which were never raised in the state-courts. The ~

alleged right to have counsel advise hinyas to thb propriety

and legality of the questions of -his Superintendent was:

raised (No. 15, pp, 34-35), but it was not raised as a con-

eoricey ' | ;

-stitutional right. °

e

II.’ Phe- Constitutional Questions. Raised by Petitioner Are

Insubstantial.

— ET

AL, The Conte a That Petitionet Was Not Notified _

of the Aut&@Pity Under Which He Was Being

Questioned or Warned That Refusal.to Answer

Might Result in. Dismissal Does Not resent a

Substantial Constitutional Question. me

Petitioner was called for a personal interview with his

administrative superior, the Superintendent of Schools of

the Sehool: District of Philadelphia. The Superintendent

Se

&

\

.

¢ af

~ Brief for Respondent in Opposition 13

> : e " , i e °

es

informed petitioner that he desiréd to ask questions that

had a bearing on petitioner’s loyalty. The Supermtendent +

asked petitioner a sample. question based on this informa-

tion, which was whether petitioner had been an iftteye

Communist in January 1952. Petitioner saidthat he would

@ . . y ‘e .

- hot answer that question without advice -of counsel, and the

Superintendent agreed te give him an opportunity to ¢on-

sult counsel. Petitioner also inquired whether the Super~

intendeént’s | conference . with hing consisted of charges

against him and he was told that therg were no charges

against him and that the Superintendent's future course of

action would be determined: by the results of the conference

(R. 7a-8a). :

>

Under these circumstaneés, there can be no doubt that

petitioner fully understood that the inquiry was important

and that the Superintendent considered it importafit that it

be answered. Petitioner has never eontended that he, was

under any misapprehension as to its importance.- He testi-

fied that he said to the Superintendent that this indeed wis

‘a serious matter (R. 67a). Certainly no further explicit

warning that refusal to answer questions could’lead to. dis-

missal was necessary. : rae

Petitioner was dismissed for incompetency under the

Pennsylvania Publie School Code. , The incompetency con-.-

sisted of: lack 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 contentions that petitioner was not notified:

of the authority under which he was being questioned, or

.

- warned that refusal to answer might: result in dismissal.

Petitioner never raised these “questions, as. a matter of

either state law or federal constitutional law. _

' “The Pennsylvania Supreme Court was fally warranted

in assuming that petitioner thoroughly understood the im-

portance of the inquiry of the Superintendent and the neces-

sity of responding to it, and in concluding that he was prop-

“~-

”,

~

_14 : Brief for Re spade nt in ‘Opposition

4

“&

~

erly found to be inoompetont because of his refusal to “an-

swer. In all material respects, the case of the present peti-

_tioner is the same as that of Board of Public Edycation v.,

Beilan, 386 Pa. 82, 125 A. 2d 327 (1996), affirmed.357 U.S.

399 (1958). The fact that there was no evidence that peti-

tioner was explicitly warned of the consequences of refusal

_ is not a material distiaetion.

Accorglingly, this question is not a substantial one for

. this Court,.even if it had beerr — by the petitioner in the

state courts.

= 2. The Contention That the Decision of the School

Board to Dismiss Petitioner Rested on Roth His

Refusal to Answer the Superintendent and on His ©

Plea of Self-Incrimination Before a Congressional -

Committee Does Not Present a Substantial ag

. stitutional Question.

“There were two charges of incompetendy against the

; petitioner before the Board of Public Education, (1)- that

he refused to answer the Superintendent of Schoc!s in a

professional interview on June 19, 1953 and (2) that he

refused to answer questions before a Congressional Com-

‘mittee on. November 17, 1953 under a claim of privilege ,

of the Fifth Amendment. ,After hearing on both charges,

the Board of Publie Education found both charges to be

— sustained and ordered petitidyer’s dismissal.

The Supreme Court of Pennsy lvania ultimately affirmed

petitioner’ s dismissal on the basi» that the first charge was

amply*sustained as a ground for dismissal under the state

faw, irrespectivé of the second greund. Respondent did not

urge before the Supreme Court of Pennsylv ania that _

tioner could be dismissed for refusal to answer the Congres

: sional Committee, as that Court had held in Board of Public

Education v. Intille, 401 Pa. 1, 163 A. 2d 420 (1960), that.a

teacher could not be dismissed for competency solely on

the ground of his claim of the Fifth Amendment privilege -

before the Congressional Committee. .

as

-

*. ~~

Brig for Respondent in Oppisitivin be iS.”

‘

f..

-

In holding that the dismsieoal on the alia wround of «

refusal to-answer the Superintendent of Schools in a pro-

fessional interview was sustained without regard to the

validity, of thepadditional charge that had-al<o been sus-

tained by the Board, the Supreme Court of Pennsylvania

adopted the identical position which it took in’ Board w

Public Education v. Beilan, 386 Pa. 82, 125 A. 2d 327-(1956),

in which it likewise sustained the dismissal for incoimpetency

on the ground of failure to answer the Superintende nt of

Schools and found ‘it unnecessary to pass on an additional

charge. against the teacher for claiming the Fifth Amend-

ment privilege before. the Congrefsional Committee.

The decision in the Beilan case was affirmed by this

Court in Beilan v. Board .of Public Education, 307 U.S 300

(1958), with specific attention to this point (307 U. 5 S. 40: 2).

As this Court there pointed out, the holding as a euler of

state law that a dismissal can be sustained if the Court finds

support for any one of the multiple-grounds relied upon by

* the dismissing Schoo! Board does not violate due progess. -

The jurisdiction of this Court is over the Pennsylvania Su-_

* preme Court, and this Court considers only the ground re-

lied upon-by the Pennsylv ania $ Supreme ¢ Court.

The Petition for Certiorari atfackS this Court's posi-

tion in Beilan as fallacious .in stating that the Court of

Common Pleas exercises de novo review of dismissals under

the Pennsylvania statute, because hearing de nove is held

only ai the request of ‘the dismissed teacher, and no such

request-was made either in the Beilan case or ad present

one.

We believe that the point of the ipilbecnes by this Court

to the fact that the Pennsylvania courts exercise de novo

review of dismissals is not merely to the right of the teacher

‘to a hearing de novo, but also to the broad power of the

reviewing court. Whether the court review of the adminis-

trative decision to dismiss the teacher is by trial de novo or.

"on the record. of hearing betore the Board of Publie Educa-

tion, the powers © ‘of the reviewing court are plenary. See-

>

16 Brief for Respondent in Opposition

‘tion 1132 of the Pennsylvania Publie , School Code, .24

Purdon's Pa. Stat. Ann. § 11-1132 provides that “the court

. shall make whatever. order it considers just, either affirm-

*- ing or reversing the action of the Superintendent of Public

» Edueation, and stating plainly’ whether the professi®nal

employee is to be discharged or is to be retained.’’ The

- powers of the Supreme Court of Pennsylvania on its review

of the lower court’s decision are not less.

As this Court said in the Beilan case (307 U. 'S. 402),

“This allocation of ‘functions between the Pennsylvania

courts and a@ministrative agencies does not violate due

process. Accordingly, it is necessary for us to considey only

the one ground relied upon by the Pennsylvania Supreme

Court.” - ' UO ek

~ Furthermore, the effeef 6f the teacher's right to a hear-

ing. de novo. in the Court of Common Pleas is that objec-

tions to the procedure in the hearing before the Board of |

Public Eduéation are inimaterial when the teacher has the =

right to a hearing de novo, but has not asked for it. The

Pennsylvania courts have so held in reviewing proceedings

where the right to a hearing de novo has been waived by

not requesting it. 5

Albert Appeal, 372 Pa. 13, 22; 92 A. 2d 663, 667

ii. > te ea eee

Commoneealth ev. Cronin, 336 Pa. 469, 474; $

N 9d 408, 411 (1939).

In any event, the contention of petitioner that this

question involves the decision of this Court in Stromberg:

rv. California, 288 U.S. 359 (1931) ‘and the eases following

it is incorrect. In Stromberg and the other eases cited, jury

verdicts in criminal cases were set aside because the juries

had been. instructed that the defendants could be ‘found

guilty on alternative grounds, when one of the alternative

charges submitted was invalid, and it was impossible to de-

_ termine from their general verdicts whether they rested on

an invalid ground which they should not have considered.

- ease what was so well decided in the Beilan case.

Brief for Respondent in Opposition 17

Even if it were agsumed that such, a principle was appl

-eable to the findings of .a state administrative body, for

which there is no authority, the fact is that the Board of

Public Education did not find the petitioner jneompetent in

-. the — but found that both charges against the pe-

titigner wére sustained. Its findings were embodied in the

adoption of a resolution that the chargés against petitioner,

had been sustained and that he be discharged as a profes-

sional employee (R. 109a). In other words, the findings

were conjunctive, and not disjunctive as were. the verdicts

in the Stromberg and other cases. Accordingly, the record

shows in the present ease that the Board of Public Educa

tion found petitioner incompetent’ for having refused’ to

ANSWer the Superintendent ‘of Schools, and it Wis Unneces-

sary for the Supreme Court of Pennsylvania té consider

the possible invalidity of any additional -grounds.

As this Court pointed out in the Beilay_ease (357 U.S.

402), the Pennsylvania Supreme Court so held also in Beilan

and this decision was mm accordance with the earlier de-

cision in Brown Caseéy347 Pa. 418, 32 A. 2d 565 (1943), af-

firming 151 Pa. Super. 522, 30 A. 2d 726.

There is no occasion for reconsidering in the present

3, The Conten‘ion That the Dismissal for Inconipe-

* —tency-Vielated Due Process When Based on the.

Teacher’s Statement That He Would Not Answer

Questions of His Superior Unless Given the Op-

portunity to Consult Counsel About Them Does.

Not Raise a Substantial Constitutional Question.

Petitioner was informed by the Superintendent at the

first interview that the Superintendent: desired’ to question —

him aliout loyalty, and he was told what one of the quas:

tions was, as a.sample. He asked leave to consult counsel ,

before deciding whether to ‘answer, and this request was

granted by the Superintendent. At the second interview,

petitioner demanded, as a coudition which he imposed on

.

§ SS

% aa

18 Brief for Respondent in Opposition

his willingness to consider any further questions, that all

the questions be given to him in advance so that he could

consult counsel again about each and @ery question. The

Superintendent declined ‘such permission... oi

In disposing of petitioner's contention that he had the

rightto consult counsel before he was required to answer

simpilar questions, the Supreme Court of . Pennsylvania

pomnted out that he was not on trial, but was being ques-

tioned by his administrative superior in private. He had

no right, to be represented by counsel er to demand a’ list

of questions to be asked in a professional interview with

his superior. The (ourt held that it would be unreason-

able to allow a teacher to insist that such an interview

with a superior should be on the teacher’s tarms, because

this contention ignored arfd negated the proper relation

ship between .a feaeher and his superior (Opinion, Peti-

- ‘tion for Certiorari, p. 25).

In so holding, th preme ¢ourt of Pennsyivania did

not refer to any ques of due process under the Con-

stitution, as the petitioner had not claimed the right to con-

sult counsel before answering his siperior as a conetitu-

tional right. ee ai mee ;

Eten if it had been, so claimed, th. supreme Court of

Pennsylvania was on solid eonstitut?? ai ground in deter-

it wonld thwart the purpose 6f such interviews to allow the

teacher to lay down his own terms as to how the interview”

will’ be conducted, It was manifest from the reeord that

the Superintendent ‘desired to discuss with petitioner the.

matters involved and the questions he desired to ask him,

not ‘merely to obtain answerg.to questions, but also to ob-

serve the manner in which the teacher conducted himself

in the interview, his f rankness, candor and truthfulness as

related to his fitness. The teacher well knew the nature of

the questions which he would be asked. To have acceded to

hix demand that he consu!t counsel again and again about

; ae

_ mining that a-teaecher+oes-not have the right to counsel in

a professional interview with his Superintendent, and that -

‘

-

. Brief. for Respondent in Opposition —. 19

all questions would have defeated Qhe prime purpese of the

interview. | ; a .

Petitioner had the full benefit, of counsel at his hear

ing on charges before the Board of Public Education, and

hie Was even given the opportunity te vonstlt counsel before

he decided whether to answer the Superintendent ’s first—

question. rd “a ne .

We do noi know ofhany case holding that an employee

is entitled to counsel in an interview with hi- superior oF

employer. To suggest that there is a substantial cousti

tutional question as to Whether such a right exi<ts woud

indeed ignore the- relationship of cooperation med candor

which should exist between a teacher and his superior,

4. The Contention That Petitioner's Dismissal Was

Actually Motivated by His Plea of Self-Incrimina-

tion Before a Congressional Committee Does Net

ts - Raise a Substantial Constitutional Question.

In spite of the faet that the.Board found the petitioner

incompetent for refusal to answer his Superintendent, peti

tioner contends that his disntixsal was actually motivated

by the fact that he had pleaded a privilege before the Con

gressional Committee. In so contending, petitioner recoy

nizes, that his case in this respect is exactly the same as

that in Béilan v. Board of Publi Education, 357 U.S. 3899 |

44958), att that the xamte contention was explicitly rejected

by the majority of this Court in Be ilan.- rie eve

The petitioner's question NG, + does mM raise any muat-

ter distinet from his question No. 2 which has already been

‘considered.

‘There is gio reason for this Court tu reconsider its de

cision in the’ Bean case. : ;

5. The Contention That Beilan v. Board of Public Edu.

ction, 357 U. 8. 399 (1958), Should-be Overruled

SN .

.

Does Not Raise a Substantial Question.

Petitioner contends that this Court’s well considered

decision in Betlan ev. Board of Public Education should be

reconsidered and oyerruled.

2° Brief for Respondent in Opposition’

The deeision .of this Court in the Bédan case was iv |

accordance with its decision in Lerner v. Casey, S07 U.S.

465.(1958), which was argued at thegame time and decided

on the Same date as the Beilan-ease. The Lerner decision

sustained the discharge of a New York subway conductor

on the ground of refusal to answer, questions asked him by. -

the representative ‘of his public employer.

Beilan and: Lerner were followed by this Court in

Nelson v. County of Los Angeles, 362 U.S. 1, 7 (1960).

All of the questions involved had the careful considera-

tion of this Court in these cases. There is no substantial

reason for reconsideration of the conclusions reached.

ae ves - CONCLUSION.

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

‘ t Pad ‘

- Epwarp B. Sokex,

sts Attorney for Respoudent.

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