Opposition Brief — Newark Teachers Union v. Board of Education

=ME-COU RT, U.

: Supreme Court, U.S.

FILED

IN THE

Supreme Court of the United ates

October TzRm, 1971 1 13 197)

E. ROBERT SEAVER, CLERK

71 - 230

NEWARK TEACHERS UNION, ete, e¢ al.,

Petitioners,

No. A-54

Vv.

THE BOARD OF EDUCATION OF NEWARK, etc.,

Respondent.

In THE MATTER

of

NEWARK TEACHERS UNION, LOCAL 481, ete. and

ONE HUNDRED EIGHTY-FIVE (185) OTHERS,

Charged with Contempt of Court,

Petitioners.

In THE MatTrer

of

JOAN STEVENS, Charged with Contempt of Court,

Petitioner.

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

——- —

JosePH P. Lokrp!, e

Essex County Prosecutor,

Attorney for Respondent,

Essex County Courts Building,

On the Brief: Newark, New Jersey, 07102.

Daviw Noau Dusrow,

Assistant Prosecutor.

R. BenJamin CoHEN,

Assistant Prosecutor.

TABLE OF CONTENTS

STATEMENT OF THE CASE

How FeEpreraL QuEsTIONS WERE PRESENTED ..............----

Reasons For Denyine THis Writ:

I—Several of the federal questions presented

herein were either not presented below or

were not properly presented

II—The decisions below, involving ordinary

criminal contempt proceedings, are predi-

cated on the well-settled principle that the

State’s right to prohibit strikes by public

employees is not violative of the petition-

ers’ rights under the First and Fourteenth

Amendments, and these decisions present

no substantial federal question .................-

I1I—Petitioners, having failed to move to dis-

solve or modify the injunction, may not,

under the doctrine of Walker v. City of

Birmingham and United States v. United

Mine Workers, attack the constitutionality

of said injunction in collateral contempt

ROUTING sccccccsnciccsoneanenninninnls

Tv—Neither the common-law prohibition against

public employee strikes in New Jersey nor

the injunction issued ex parte in the case

sub judice were violative of the First

Amendment, and both are in accord with

the decisions of this Court ..........c...c.ccccccse0

10

13

21

ii TABLE OF CONTENTS

PAGE

A. New Jersey law barring strikes by pub-

lic employees is constitutionally valid... 24

B. The injunction issued by the Superior

Court of New Jersey, Chancery Divi-

sion, was neither overbroad nor vague 31

C. Carroll v. President and Commissioners

of Princess Anne is distinguishable

from the instant case 33

ConcLuUsION 36

Cases Cited

Amalgamated Food Employees Union v. Logan Val-

ley Plaza, 391 U. S. 308, 334 (1968) 11

Aptheker v. Secretary of State, 378 U. S. 500 (1964) 20

Bailey v. Anderson, 326 U. S. 203, 260-7 (1945) ........ 12,13

Beck v. Washington, 369 U. S. 541, 550 (1962) .......... 11,12

Berry, In re, 65 Cal. Rptr. 273 (1968) 32

Board of Education, Borough of Union Beach v. N.

J.E.A.,, et al., 53 N. J. 2958247 A. 2d 867 (1968)......13, 14,

25-29, 31

Block, In re, 50 N. J. 494, 499 (1967) .ecccccccccccccscssseee 13, 19, 25

Brown v. Massachusetts, 144 U. 8S. 573, 580 (1892)... 11

Buehrer, In re, 50 N. J. 501, 512-13 (1967) .....0.000...... 19

Cardinale v. Louisiana, 394 U. 8. 437, 439 (1969) ...... 11

Carroll v. President and Commissioners of Princess

SIS. Ds BID (EIB) scsescseiessnscensescctnsrecsevsnsenvensess 33-35

Carton, In re, 48 N. J. 9 (1966), 222 A, 2d 92 ow... 21

TABLE OF CONTENTS iii

PAGE

Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) 17

Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226,

231-2 (1897) : 11

Cicenia v. Lagay, 357 U. S. 504, 507-8, n. 2 (1958) -.. 12

City of Alcoa v. International Broth. of Elec. Wkrs.,

203 Tenn. 12, 308 S. W. 2d 476 (Sup. Ct. 1957) ......24, 25

City of Los Angeles Bldg. & C. Tr. Council, 94 Cal.

App. 2d 36, 210 P. 2d 305 (D. C. App. 1949), reaf-

firmed 109 Cal. App. 2d 81, 240 P. 2d 16 (D. C.

App. 1952) 24

City of Manchester v. Manchester Teachers Guild,

100 N. H. 507, 131 A. 2d 59 (Sup. Ct. 1957) -....... 24

Delaware River Authority v. International Organiza-

tion of Masters, Mates and Pilots, 45 N. J. 138,

211 A. 2d 789 (1965) 13, 15, 17

Dombrowski v. Pfister, 380 U. S. 479 (1965) ................ 20

Donevero v. Jersey City Incinerator Authority, 75

N. J. Super. 217, 182 A. 2d 596 (Law Div. 1962),

rev’d on other grounds ............. 13, 14, 24

Edelman v. California, 344 U. 8. 357 (1958) ................ 12

Fox v. Washington, 236 U. S. 273, 277 (1915) ............ 17

Giboney v. Empive Storage Co., 336 U. S. 490 (1948)..16, 27

Godehaux Co. v. Estopinal, 251 U. 8. 179, 181 (1919) 11

Gompers v. Bucks Stove Range Co., 221 U. 8. 418,

a | ae 29

Head v. Special School District No. One, et al., 182

N. W. 2d 887 (Minn. Sup. Ct. 1970) ....... 15, 16

iv TABLE OF CONTENTS

PAGE

Howat v. Kansas, 258 U. S. 181 (1922) 22

Hughes v. Superior Court, 339 U. S. 460 (1949) .... 27

Hulbert v. Chicago, 202 U. S. 275 (1906) 11

Intl. Brotherhood of Teamsters Union v. Hanke,

339 U. S. 470 (1949) 27

International Brotherhood, ete. v. Vogt, Inc., 354 U.

eG UII ditcccactseatinduhguiciieeincinscienanents 17, 27

Jefferson City Teachers Association v. Board of Ed-

ucation, 463 S. W. 2d 627 (Ky. Ct. of App. 1971) 15

Kasper v. Brittain, 245 F. 2d 92, 96 (6th Cir. 1957) 21

Kirker v. Moore, 308 F. Supp. 615 (S. D. W. Va.

1970) : 15

McAleer v.. New Jersey Incinerator Authority, 79 N.

J. Super. 142, 190 A. 2d 891 (App. Div. 1963) ........ 13, 24

McAm v. New York Stock Exchange, 80 F. 2d 211,

214 (2d Cir. 1935) 21

McLeod v. Majors, 102 F. 2d 128 (5th Cir. 1939)... 21

Michel v. Louisiana, 350 U. S. 91, 97 (1955) ...0000..... 12

Minneapolis Federation of Teachers v. Obermeyer,

275 Minn. 347, 147 N. W. 2d 358 (1966).........00002.... 16

Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 309

(REAM EN SRA A i retin ae 12

NAACP v. Button, 371 U. S. 415 (1963) —02.. . 82

New Jersey State AFL-CIO v. State Federation of

District Boards of Education, $3 N. J. Super. 31,

224 A. 2d 519 (Ch. 1966) 31

aa iia i:

TABLE OF CONTENTS Vv

PAGE

New Jersey Turnpike Authority v. American Feder-

ation of State Employees, 82 N. J. Super. 389, 200

A. 2d 134 (Ch. Div. 1964) 13, 15, 17, 24

Norwalk Teacher’s Association v. Board of Educa-

tion, 1388 Conn. 269, 83 A. 2d 482 (1951) ................ 16, 24

O’Connor v. Ohio, 385 U. S. 92-93 (1966) 13

Oxley Stove Company v. Butler County, 166 U. S.

648, 655 (1897) ....... 10

Pawtucket v. Parent Teacher’s Alliance, 87 R. I. 364,

141 A. 2d 624 (R. I. Sup. Ct. 1958) 16, 25

Port of Seattle v. International Longshore & W. U.,

52 Wash. 2d 317, 324 P. 2d 1099 (Sup. Ct. 1958) ..... 25

Railway Mail Association v. Uordi, 293 N. Y. 315, 56

N. E. 2d 721 (1944), aff’d 326 U. S. 88 (1945) ... 15

Rankin v. Shanker, 23 N. Y. 2d 111, 295 N. Y. S.

2d 625, 42 N. E. 2d 80 (Ct. of App. 1968) ..........-... 16

Reich v. United States, 239 F. 2d 134, 138 (1st Cir. us

1956) 21

School District for City of Holland, Ottawa and Al-

legon Counties v. Holland Educational Associa-

tion, 380 Mich. 314, 157 N. W. 2d 206, 210 (1968) 31

Smith v. California, 361 U. S. 147 (1959) ............ im wae

Smotherman v. United States, 186 F. 2d 676 (10th

Cir. 1950) a ae

Stembridge v. Georgia, 343 U. S. 541, 547 (1952) ...... 12

Thornhill v. Alabama, 310 U. S. 88, 104-06 (1940) ....15, 27

United Federation of Postal Clerks v. Blount, No.

70-328, decided by this Court on October 12, 1971 31

United States v. Robel, 389 U. S. 258 (1967) ......:... 20

Vi TABLE OF CONTENTS

PAGE

U. S. v. United Mine Workers, 330 U. S. 258, 272

CORFE D siicialeiccenecrnincshonnmaleunieocaie i. 17, 18, 21, 23

Walker v. City of Birmingham, 388 U. S. 307 (1967) 9,

21-23, 30, 35

Western Union Telegraph Co. v. International

Brotherhood, 133 F. 2d 955, 987 (7th Cir. 1943) 0.00 °°

Whippany Paperboard Co., Ine. v. Local 301, 11 N.

J. 153, 156 (1952) 19

William Block, et als, In re, 50 N. J. 494, 236 A. 2d

584 (1967) 25

Williams v. Georgia, 349 U. 8. 375, 382-3 (1955) ........ 11

United States Constitution Cited

First Amendment ......0.........2-0.00.++ 10, 18, 16-18, 20, 24, 28, 29

PP OURCRCUET ATCT occssiccntsecessscccscimspnnsintsinoenenccinontinse 13

New Jersey Constitution Cited

1947— ;

Article 1, para. 19 SPAS AC aN tae SFE COS 14, 26

I Bh ccccancinnehersnts 18

Statutes Cited

N.J.S. 2A :15-51 - 17

N.J.S. 2A :168-1 18

Ti ts SR | nkimereininn 2

98 U.S.C. §1257 * 10

Rules Cited

Rule 4:52-1 (New Jersey) 30

Rule 23(1)(f) (United States Supreme Court) ........ li

TABLE OF CONTENTS vii

PAGE

Other Authorities Cited °

Annot., “Union Organization and Activities of Pub-

lic Employees”, 31 A. L. R. 2d 1142 (1953) 20... 25

Cornell, “Collective Bargaining by Public Employee

Groups,” 107 U. Pa. L. Rev. 48, 54 (1958) ............... 25

Note, “Labor Relations in the Public Service,” 75

Harv. L. Rev. 391, 407 (1961) 25

Note, “Union Activity in Public Employment,” 55

Colum. L. Rev. 3438, 358 (1955) 25

Pound, “The Future of Law”, 47 Yale LJ. 1, 13

(1937) 23~

1 Proceedings of the New Jersey Constitutional Con-

vention of 1947, p. 661 14

Weiner, “Wanna Make a Federal Case Out of It?”

48 A.B.A.J. 59, 60, 62 (1962) 10

SALAS ETT RADA AT ES 6 HB BERNER OE PIOUSP RS ML AEP a ONE Ste

*

wR ae

eer nr ere e

IN THE

Supreme Court of the United States

OctosEer Term, 1971

No. A-54

ap.

> a

NEWARK ee UNION, etce., e¢ al.,

Petitioners,

v.

THE BOARD OF EDUCATION OF NEWARK, ete.,

Respondent.

In THE MaTrer

e of

NEWARK TEACHERS UNION, LOCAL 481, ete., and

ONE. HUNDRED EIGHTY-FIVE (185) OTHERS,

Charged with Contempt of Court,

Petitioners.

ye

In THE MarrTer

of

JOAN STEVENS, Charged with Contempt of Court,

Petitioner.

~>

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

Statement of the Case

Petitioners seek a writ of certiorari to review judg-

ments entered in the Appellate Division of the Superior

Court of New Jersey on April 5, 1971, affirming peti-

tioners’ convictions in summary criminal contempt pro-

ceedings condneted by the Chancery Division of the Su-

perior Court of New Jersey. (One of the two Appellate

Division decisions is reported at 114 N. J. Super. 306).

On July 7, 1971, the Supreme Court of New Jersey de-

nied certification. 58 N. J. 603. On July 28, 1971, Mr.

Justice Brennan ordered a stay of the execution of the

judgments pending the disposition of the present Petition.

Petitioners’ convictions arose out of their participation

in an illegal strike called by the Newark Teachers Union

in February, 1970. Prior to that date, the Union had been

involved in negotiations with the Newark Board of Kdu-

eation concerning a new teachers’ contract. |

On December 12, 1969, the Newark Board of Education,

through its Negotiating Committee, met with the Union

and its representatives and agreed upon ground rules for

negotiating a new teachers’ contract.

On December 30, 1969, the Union delivered to the

Board’s Negotiating Committee its proposals, and a ten-

tative schedule was agreed upon for the purpose of nego-

tiations. The first negotiation meeting was held on Jan-

uary 5, 1970. At the meetings of December 30, and Janu-

ary 5, the Negotiating Committee apprised the Union and

its representatives that, pursuant to N.J.S. 18A:22-7, the

Board of Eduecation’s budget had to be submitted to the

Board of School Estimate of the Newark school district

on or before February 1, 1970, and to that end suggested

that the provisions of the proposed contract relating to

budgetary matters be given priority, in order that the

budget could reflect agreement between the parties. The

Union rejected this suggestion.

The negotiations proceeded on a daily bssis, with the

total number of hours spent in negotiations, as of Jan-

uary 29, 1970, exceeding two hundred.

On or about January 16, 1970, the negotiator for the

Union indicated that, with the February 1, 1970, deadline

approaching, the policy and position of the Union would

be that on January 31, 1970, if there were no contract,

there would be no work. The Union issued a press re-

lease to that effect.

Subsequent to January 16, 1970, the Union actively pro-

ceeded vo organize and make preparations for a strike on

the first school day following the adoption of the actual

budget. To this end the Union issued circulars entitled

“Mass Teacher Demonstration,” “Strike Instructions,” and

“Strike Information.”

On January 31, 1970, the Board of Education, at a duly

constituted public meeting, adopted a budget for 1970-71.

Included in this budget was a new policy and salary

guide, increasing the minimum salary of first year teachers

from $6,700 to $8,000, in addition to the normal increment

of $400,—a raise of $1,300 for each teacher. The Union

negotiating representatives rejected the above salary and

benefits proposal and indicated that at the Union meet-

ing on February 1, 1970, they would not recommend to

the membership acceptance of the new salary and bene-

fits reflected in the budget for the year 1970-71.

Fearing the imminent threat of immediate, substantial

and irreparable injury to itself, to the Newark school

system, to the pupils who attended the Newark public

4

schools and to the public, the Board of Education applied

to the Chancery Division for temporary relief. On Janu-

ary 31, 1970, the Chancery Division entered an order re-

straining the strike.

In its application for injunctive relief, the Board set

forth the fact that a strike would cause irreparable, im-

mediate and substantial injury, before notice of applica-

tion for a temporary restraint could be served and a hear-

ing had thereon. More specifically, it was alleged that if

a substantial number of teachers went out on strike, the

Board would be unable to obtain a sufficient number of

qualified teachers to keep the schools open. If the schools

could not be kept open, many children would be without

adequate care and supervisiun during school hours, since

both parents in many cases were employed. Many children

would not be able to obtair lunch from the school cafe-

teria and many would suffer educational retrogression.

Moreover, the Board stated that many children would suf-

fer from the damaging psychological impact the strike

would have. Finally, the entire City of Newark would

suffer a severe setback from a strike affecting the City’s

school system.

The Restraining Order of January 31, 1970, applied to

the Union, the New Jersey State Federation of Teachers,

their respective members, officers, directors, committee

members, employees, agents, and representatives, certain

named Union officers, and all persons acting in behalf of

or in concert with the above. The order prohibited the

above-enumerated persons from: |

(a) causing .. ., ete. any strike against the Newark

Board of Education;

(b) picketing . . ., ete. in the vicinity of any of the

public schools er other Board of Education build-

ings;

0

5

(c) Doing any act to interfere . . ., etc. with the

construction of any building of the Board of Hdu-

cation ; |

(d) Agreeing, conspiring, vr combining to do any

of the above acts.

The Restraining Order of January 31, 1970, provided

that those enjoined (netitioners herein) could move for

dissolution or modification of the restraints on two days’

notice. At no time did anyone ever move to dissolve or

modify the restraints.

The Union and its representatives held a meeting on

February 1, 1970, to call for a strike vote pursuant to a

notice entitled “Strike Vote Meeting”. The meeting was

held cn that date, a Sunday, and on Monday, February

2, 1970, the teachers’ strike commenced amidst a great

deal of publicity in the local and New York press.

The strike continced and on February 4 and 5, 1970,

the Chancery Division issued Orders to Arrest six of the

officers of the local Union for their violations of the Re-

straining Order of January 31, 1970. Each Order to

Arrest specified the charges against each defendant and

also specified a date for his hearing.

On Februarv 6, 1970, the Chancery Division issued an

Order directing the Essex County Prosecutor to investi-

gate the strike and counsel the Court. The Order spe-

cifically directed the Prosecutor to investigate the con-

| duct of the strike for the purpose of ascertaining and

| presenting facts relating to the identity of the individuals

who violated the Restraining Order, and the nature of

their conduct in committing such violations. The stated

purpose of the Order of February 6, was to provide that

contempt proceedings be instituted against those violat-

ing the Restraining Order.

6

Nevertheless, the strike continued on February 6, and

February 9, drawing extensive coverage in the news

media,

On February 10, 1970, the Chancery Division, relying

upon affidavits submitted, issued an Order directing the

Kssex County Sheriff and his designated representatives,

under the supervision of the Hssex County Prosecutor, to

arrest any individual who in their presence was observed

to violate the Restraining Order of January 31.

The affidavits alleged a coneerted, coordinated effort on

the part of the strikers and pickets to avoid identifiea-

tion by law enforeement officers. Arrests of strikers and

pickets were made ‘on February 11, 13, 17, 18, 19 and 20.

Approximately one hundred and ninety persons were ar-

rested during this period. Each of the persons arrested

was served with an Order continuing his arrest, setting

bail and charging him with contempt of court for vio-

lation of the Restraining Order. These individual Orders

enumerated the charges against each defendant and speci-

tied these charges as follows:

(a) striking, ete.

(b) picketing, ete.

(c) interfering, ete. with the Newark Board of Edu-

cation in the perfonnanee of its duties.

Hearing dates for the contempt proceedings were set forth

in each Order.

As a supplementary procedure each person arrested

was served with a complaint by the Sheriff’s Department.

These complaints alleged contempt of court for violation

of the Restraining Order in tuat the person named:

a Remnant a

(a) assembled with others and picketed;

(b) refused to comply with the terms of the Re-

straining Order.

he petitioners were tried in groups in summary con-

- “tempt proceedings. The evidence produced by the State

“~~ at each trial was substantially the same for the vast ma-

jority of the petitioners. The State introduced into evi-

denee the Restraining Order of January 31, the Arrest.

Orders of February 4 and 5, the Arrest Order of Feoru- |

ary 10, and the Orders charging each petitioner with

speeifie acts of contempt. The State introduced numer-

ous newspaper articles from both the Newark and New

York press to show the extensive coverage given to the

strike and the widespread dissemination of notice of the

strike and of the Restraining Order throughout the com-

munity. Testimony was produced relating to the Union

meetings of February 1, and February 8, 1970, at which

times the Restraining Order was mentioned by several

speakers. There was oral testimony placing many of the

petitioners at one or both of these meetings. Members

of the Sheriffs Department testified that they served

copies of the Restraining Order on local Union leaders

by leaving the copies at their homes. There was also

testimony as to the arrest of several Union leaders prior

to February 11, 1970. The Superintendent of Schools tes-

tified generaily as to the number of teachers absent

throughout the school system from February 2 througu

February 25, while the principal or vice-principal of cach

school involved testified as to the specific absences of

each petitioner from school throughout the course of the

strike. The State put into evidence Section 515.1 of the

| Board of Education Rules which provides that “teachers

prevented from attending school shall immediately notify

the principal.” The principal or vice-principal of each

ne ee ae

ARTES oe RAPS ROR.

8

school also testified as to the posting of the Restrain-

ing Order on ihe bulletin board in each school. There

was substantial testimony identifying various petitioners

as being on picket lines on specific dates, as well as photo-

graphs depicting numerous petitioners picketing at vari-

ous schools and the Board of Education building, and

showing petitioners being handed copies of the Restrain-

ing Order. There was evidence of many of the petitioners

carrying or wearing signs tearing messages in further-

ance of the strike. Finally, the State produced oral testi-

mony of the substance of the Restraining Order being

read to the pickets on many of the dates in question.

All of the petitioners were convicted of contempt of

court.

How Federal Questions Were Presented

Several of the federal questions herein presented were

not properly presented below.

At the trial level one teacher, Joan Stevens, was repre-

sented by her own counsel while the Union and the other

185 individuals were represented by a different attorney.

'wo separate appeals were taken to the Appellate Divi-

sion of the Superior Court. Several issues were raised

in Joan Stevens’ appeal that were not raised in the NTU

(Newark Teachers Union) appeal. Similarly, issues were

raised in the NTU appeal which were not raised in the

Stevens appeal. The Appellate Division rendered two

separate opinions which, accordingly, dealt with the dif-

ferent issues raised in each case.

After the Appellate Division decisions were handed

down, petitioners’ present counsel were substituted as

counsel for the NTU and the 185 individuals. Apparent-

9

ly, present counsel were also substituted as counsel for

Joan Stevens, although no formal substitution of attor-

ney can be located. A single Petition for Certification was

filed in the Supreme Court of New Jersey under a single

docket number. This petition bore separate captions for

Joan Stevens and for the NTU and the 185 individuals.

Apparently, no formal motion to consolidate the two cases

was ever made. The Supreme Court of New Jersey denied

the joint petition for certification. The separate captions

were retuined in the Petition for Stay. Petitioners then

petitioned this Court for a writ of certiorari. At this junc-

ture and for the first time the separate captions are de-

leted.

Petitioners contend (on page 11 of their Petition) that

the questions of the alleged overbreadth and vagueness

of the injunction were raised before the Appellate Divi-

sion and decided. Respondent submits that this issue

was never properly framed in the NTU brief, nor was

this issue dealt with in the Appellate Division opinion in

the NTU case.

It is uneontroverted that the applicability of Walker v.

City of Birmingham, 388 U. 8. 307 (1967), was not raised,

argued or decided in the NTU Appellate Division case.

Petitioners conwnd (at page 12 of their petition) that

the question of the failure to give notice of the issuance

| of the ex parte restraining order was “inherent” in the

Appellate Division brief of Joan Stevens, and that the

| Appellate Division “apparently” focused on this issue.

Respondent submits that this issue was not raised in the

Joan Stevens brief, nor was it dealt with in the Appel-

| late Division opinion in that case. Moreover, it is un-

controverted that this notice question was not raised, ar-

gued or decided in the NTU Appellate Division case.

10

The issue of the constitationality of the common law

prohibition against strikes by public employees (embodied

in the New Jersey Constitution) was first raised in the

Petition for Certification to the Supreme Court of New

their Petition for Certification). The more specific First

Amendment attack on the “common law rule of New Jer-

sey” is now raised for the first time in the Petition to this

Court for writ of certiorari. |

REASONS FOR DENYING THIS WRIT

I

Several of the federal questions presented herein

were either not presented below or were not properly

presented.

It is essential to the jurisdiction of this Court under

28 U.S.C. §1257 that a substantial federal question have

been properly raised in the state court proceeding below.

See Wiener, “Wanna Make a Federai Case Out of It?” 48

A.B.A.J. 59, 60, 62 (1962). There are two basic require-

ments of particularity in the proper framing of a federal

question. First, the question must make reference to a

particular clause of the federal Constitution relied upon,

as well as the rights claimed thereunder. Second, the

jurisdiction of this Court cannot arise from mere infer-

ence but only from averments so distinct and positive as

to place it beyond question that a party intended to as-

sert a federal right. Ozley Stove Company v. Butler

County, 166 U. S. 648, 655 (1897). Several of the questicens

petitioners attempt to raise have not met these standards.

(See “How Federal Questions Were Presented,” swpra).

11

Once a substantial federsi. question has been properly

framed, it becomes important that it be raised at the

proper point in the siate court proceeding. Godchaux

Co. v. Estopinal, 251 U..S. 179, 181 (1919); Beck v. Wash-

ington, 369 U. S. 541, 550 (1962). “The rule that in cases

coming from state courts this Court may review only those

issues which were presented to the state court is not dis-

eretionary but jurisdictional.” Amalgamated Food Em-

ployees Union v. Logan Valley Plaza, 391 U. S. 308, 334

(1968) (dissent)! This factor is especially significant

where, as here, the highest state court has failed or re-

fused to pass expressly upen the federal questions. In

this situation, the petitioners have the burden of showing

that they properly raised the questions, so that the state

ecurt’s failure to deal with them was not for want of

proper presentation. As Rule 23(1)(f) of this Court

states, a petitioner seeking reviev of a state court deci-

sion must “specify the stage in the proceedings in the

court of first instance and in the eppellate court at which,

and the manner in which, the federal questions sought to

be reviewed were raised... .”

“A state procedural rule which forbids the raising of

federal questions at late stages in the case, or by any

other than a prescribed method, kas been recognized as

a valid exercise of state power.” Williams v. Georgia, 349

U. S. 375, 382-3 (1955). See Hulbert v. Chicago, 202 U.S.

975 (1906) (complete failure to raise question at trial

court level); Brown v. Massachusetts, 144 U. S. 573, 580

(1892) (failure to raise question before verdict held to be

fatal); Chicago, B. € Q. R. Co. v. Chicago, 166 U. S. 226,

1{—n Cardinale v. Lowisiana, 394 U. S. 4387. 439 (1969), the

Court listed various ‘‘sound reasons,’’ in addition to a want of

jurisdiction, for ignoring federal constitutional issues not raised,

preserved, or passed upon in the state courts below.

12

231-2 (1897) (proper to raise question in motion for new

trial) ; Edelman v. California, 344 U..S. 357 (1953) (fail-

ure to raise issue at trial). Thus a state “may attach rea-

sonable time limitations to the assertion of federal consti-

tutional rights,” and such limitations must be respected.

Michel v. Louisiana, 350 U. S. 91, 97 (1955). In Beck v.

Washington, 369 U. S. 541, 550, this Court recognized the

reasonableness of a state supreme court’s refusal “to con-

sider constitutional attacks upon statutes not made in the

trial court even where the constitutional claims arise from

the trial court’s interpretation of the challenged statute.”

If, as here, reasonable state procedural requirements

are not observed, this Court should decline to exercise

jurisdiction where the highest state court is completely

silent on the federal question Mutual Life Ins. Co. v. Me-

Grew, 188 U. S. 291, 309 (1903). This Court must assume,

unless it can affirmatively be shown otherwise, that the

silence is due to the procedural deficiency. Bailey v.

Anderson, 326 U. 8. 203, 206-7 (1945).

Ti has also been held that where the federal constitu-

tional issue was not raised in the trial court, as required

vy state law, but was raised for the first time in a peti-

tion for rehearing addressed to the state intermediate

eourt, the highest state court’s action in refusing without

opinion to hear the case precludes review on certiorari

by the Supreme Court. Stembridge v. Georgia, 343 U. S.

541, 547 (1952). But ef. Cicenia v. Lagay, 357 U. S. 504,

507-8 (1958), n. 2. Such refusal by the highest state court

might have been based upon the adequate state ground

that the constitutional issue was not raised in the trial

court, as required. And this Court is without jurisdic-

tion “when the question of the existence of an adequate

state ground is debatable.” 343 U. &. 547-8.

13

Here, the question of the constitutionality of the com-

mon law rule prohibiting public employee strikes was

initially raised in a Petition for Certification filed in the

highest state court, which court refused to consider the

case. Respondent submits that the jurisdiction of this

Court cannot attach. Bailey v. Anderson, 326 U. S. 203,

206-7 (1945). Only if the highest state court actually

considers and disposes of a question so raised can this

Court’s review be obtained. But ef. O'Connor v. Oho,

385 U. S. 92, 93 (1966).

The decisions below, involving ordinary criminal

contempt proceedings, are predicated on the well-

settled principle that the State’s right to prohibit

strikes by public employees is not violative of the

petitioners’ rights under the First and Fourteenth

Amendments, and these decisions present no substan-

tial federal question.

It is clear that in New Jersey, as in most other states,

public employees, including teachers, do not have the

right to strike against the government, ‘whether

federal, state or a political subdivision of the state. Board

of Education v. New Jersey Education Ass’n., et al., 53

N. J. 29, 247 A. 2d 867 (1968); In re Block, 50 N. J. 494

(1967). See also Delaware River Authority v. Interna-

tional Organization of Masters, Mates and Pilots, 45 N. J.

138, 211 A. 2d 789 (1965); Donevero v. Jersey City Incim-

erator Authority, 75 N. J. Super. 217, 182 A. 2d 596 (Law

Div. 1962), rev’d on other grounds; McAleer v. New

Jersey Incinerator Authority, 79 N. J. Super. 142, 190

A. 2d 891 (App. Div. 1963); New Jersey Turnptke Au-

thority v. America. Federation of State Employees, 83

N. J. Super. 389, 200 A. 2d 134 (Ch. Div. 1964).

14

A. right to strike need not necessarily be an inherent

element of the right to organize, and the New Jersey

courts have recognized the distinction between public and

private employment. Board of Education v. New Jersey

Education Ass’n. et al., supra. Article 1, para. 19, of the

New Jersey Constitution, adopted in 1947, provides:

Persons in private employment shall have the right

to organize and bargain collectively. Persons in

public employment shall have the right to organize,

present to and make known to the State or any of

its political subdivisions or agencies, their griev-

ances and proposais through representatives of

their own choosing (Emphasis supplied.)

Thus, the legislature recognized the legitimate distinction

between public and private employment, and the courts

(which have the responsibility of interpreting the New

Jersey Constitution) cannot infer from this provision that

the Legislature intended to depart from the common law

rule that strikes by public employees are illegal. Board

of Education v. New Jersey Education Ass’n et al., supra,

at 46, 247 A. 2d at 876; Donevero v. Jersey City In-

cinerator Authority, supra, at 224, 182 A. 2d at 600, where

the New Jersey Supreme Court in interpreting that sec-

tion of the New Jersey Constitution held:

This provision does not, in terms, confer any right

on the part of public employees to strike. It was

clearly the understanding and intention of the Con-

stitutional Convention, which drafted the basic

State Charter, that no such right to strike on the

part of public employees was to be implied from

the language used. In this respect, the then exist-

ing state of the law was not to be altered. See:

1 Proceedings of the New Jersey Constitutional

Convention of 1947, p. 661. |

15

See also, Kirker v. Moore, 308 F. Supp. 615 (S. D. W. Va.

1970).

Clearly, the Legislature sought to make this distinction

in the respective rights of private and public employees

by not giving the latter the right to bargain collectively.

It is well settled that the concept of collective bargaining

includes the right to strike and other aspects of the pri-

vate employer-employee relationship. See Railway Mai

Association v. Cordi, 293 N. Y. 315, 56 N. E. 2d 721

(1944), aff'd 326 U. S. 88 (1945); Delaware River Au-

thority v. International Organization of Masters, etc.,

supra, at 147-48, 211 A. 2d at 794; New Jersey Turnpike

Authority v. American Federation of State Employees,

ee 398, 200 A. 2d at 138-39. There is no constitu-

tional prohibition preventing teachers from organizing

under the banner of the Newark Teachers Union for the

purpose of collective action in the presentation of griev-

ances and proposals. They may not, however, achieve

that end by coercive methods such as strikes, which would

unlawfully halt the oper tion of-the schools and adversely

affect the public health, safety, and welfare. No con-

stitutional issue is raised by this interpretation of the

New Jersey Constitution.

The right of free speech is constitutionally subject to

limitation by legitimate interests of the state which re-

quire such action. Thornhill v. Alabama, 310 U. S. 88,

104-06 (1940). It is clear that the Legislature, acting

under police powers, may prohibit strikes in certain fields

of endeavor when the interests of public health, safety,

and welfare are involved. Teachers, as public employees,

in whose services the State has an appreciable interest, do

not have the eonstitutional right to strike. See Jefferson

City Teachers Association v. Board of Education, 463 S.

W. 2d 627 (Ky. Ct. of App. 1971); Head v. Special School

16

District No. One, et al., 182 N. W. 24 887 (Minn. Sup. Ct.

1970); Rankin v. Shanker, 23 N. Y. 2d 111, 295 N. Y. S.

2d 625, 242 N. E. 2d 802 (Ct. App. 1968); Minneapolis

Federation of Teachers v. Obermeyer, 275 Minn. 347, 147

N. W. 2d 358 (1966); Pawtucket v. Parent Teacher’s All

ance, 87 R. I. 364, 141 A. 2d 624 (R. I. Sup. Ct. 1958);

Norwalk teachers Association v. Board of Education, 138

Conn. 269, 83 A. 2d 482 (1951). Thus, conduct which

would otherwise be constitutionally permissible in the pri-

vate employment sector can constitutionally be prohibited

in the public employment sector as inconsistent with the

public interest in the valid exercise of the State’s police

power.’

The fact that petitioners merely allege that their activ-

ity was protected by the First Amendment does not give

rise to a First Amendment question where the activity

was in violation of a valid state law. Giboney v. Empire

Storage Co., 336 U. S. 490 (1948). In the Giboney case,

the court held that members of a labor union were prop-

erly enjoined from picketing in violation of a state law,

even though the picketing involved dissemination of truth-

ful information about a labor dispute. The court reasoned

at 502:

(I)t has never been deemed an abridgement of

freedom of speech or press to make a course of

eonduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means

of language, either spoken, written or printed. See

2 As petitioners note on page 14 of their Petition, ‘‘in a number

of cases presented to this Court, petitions for writs of certicrari

have been denied in eases invoiving contempt citations arising

out of public employee strikes.’’ For a list of these recent cases,

see footnote 4 on page 14 of the Petition.

17

Fox v. Washington, 236 U.S. 273, 277 (1915) ; Chap-

linsky v. New Hampshirc, 315 U. S. 568 (1942).

See also International Brotherhood, etc. v. Vogt, Inc., 354

U. S. 284 (1957).

That the legitimate distinction between public and pri- |

vate employment is constitutionally permissible is clear

from the abundance of case law and statutes prohibiting

strikes by public employees. Even where states have en-

acted anti-injunction laws to prevent abuses resulting

from the use of injunctions in labor disputes, these laws

have been held not to be applicable to disputes between

the state or any political subdivision and its own em-

ployees. United States v. United Mme Workers, 330 U. S.

258, 272 (1947); N. J. Turnpike Authority v. American

Federation of State Employees, 83 N. J. Super. 389; Del-

aware River and Bay Authority v. International Orgamni-

zation of Masters, Mates and Puots, 45 N. J. 138.

Petitioners contend that the imposition of jail sentences

upon conviction of contempt of court is designed to “chill”

or “freeze” the exercise by public employees of their right,

under the First Amendment, to associate in and support

a union. The State of New Jersey and its courts have no

such desire. Unions long ago achieved in our State a

status of recognition and respect: Indeed, New Jersey law

forbids the issuance of restraining orders or injunctions

against peaceful activities by non-public employees and

unions involved in labor disputes. N.J.S %A:15-51. The

meting out of jail sentences to petitioners in the instant

ease cannot be said, then, to be a manifestation of either

an anti-union policy or an attempt to “chill” First Amend-

ment rights. Rather, the trial court was imposing a con-

stitutionally permitted punishment for the contempt of

18

court committed by petitioners in refusing to obey the

court’s Restraining Order.

In New Jersey, punishment in a swninary prosecution

for contempt may not exceed six months’ imprisonment or

a fine of $1000.00, or both, subject to statutory probation

provisions. New Jersey Constitution, 1947, Art. 1, par. 8,

9; N.J.S. 2A .168-1, et seg. Petitioners have conceded that

their sentences were within statutory limits: Underlying

their argument, however, is the disturbing theme that the

violations which were the suvjects of the immediate prose-

cutions were minor or petty in. nature and that, when

weighed against petitioners’ First Amendment rights, the

State’s interest in preventing such minor or petty miscon-

duct docs not warrant the impo:ition of custodial sen-

tences, no matter how minimal.

Respondent is constrained to disagree. The 1970 strike

and the picketing by Newark teachers was the third in a

series of labor disputes involving the Newark school sys-

tem. The leniency of the courts in the past and their

failure to impose custodial sentences apparently served

to encourage the Union rather than to deter the contem-

plated strike. The strike that did occur caused serious

disruption in the educational process of countless youths

in the City of Newark. The fact that teachers, who are

the closest representatives of government in the minds of

our school children, violated with impunity court orders

and statutes, makes their conduct all the more serious and

objectionable. Our courts cannot continue to countenance

such a public display of disregard for the law.

The fact that petitioners were convicted in summary

contempt prosecutions in no way detracts from the seri-

ousness of their transgressions against the law of New

Jersey. As noted by this Court in United States v. United

Mineworkers, 330 U. S. 258, 302 (1947):

19

Sentences for criminal contempt are punitive in

their nature and are imposed for vindicating the

authority of the Court. (Citations omitted). In im-

posing a fine for criminal contempt, the trial judge

may properly take into consideration the extent of

the willful and deliberate defiance of the court’s

order, the seriousness of the consequences of the

contumacious behavior, the necessity of effectively

terminating the defendant’s defiance as required by

the public interest, and the importance of deterring

such acts in the future. Because of the nature of

these standards, great reliance must be placed upon

the discretion of the trial judge.

Incarceration for the willful defiance of a court order

is not novel in New Jersey. See In re Buehrer, 50 N. J.

501, 512-13 (1967); In re Block, 50 N. J. 494, 499 (1967) ;

Whippany Paperboard Co., Inc. v. Local 301, 11 N. J. 153,

156 (1952). History has revealed that less punitive meas-

ures create disrespect for the law and encourage those

persons similarly disposed to criminal conduct.

Here, rank and file members of the Union are among

those involved. This does not detract from the seriousness

of their antisocial conduct. Our system of law is based

upon the proposition that men and women are free agents,

responsible and, in the final analysis, accountable, to those

whose rights they transgress. The members of the Union

selected their leaders and chose to follow their orders.

They helped mold the policies of the Union and in fact

supported them with full knowledge of the consequences.

That being the case, they are hardly in 4 position to com-

plain.

The thrust of petitioners’ argument is that, the illegality

of their conduct notwithstanding, imprisonment is too

a Ds So a RE a Pa

rsd 8 Rass Pa, ney . .

20

drastic a penalty and is tums somehow constitutionally

impermissible. Neither United States v. Robel, 389 U.S.

258 (1967), Smith v. California, 361 U. 8S. 147 (1959), nor

Aptheker v. Secretary of State, 378 U.S. 500 (1964), re-

lied on by petitioners, supports such a proposition. In each

of the three cases the Court’s holding that the strictures

of the statute involved were too drastic was based on a

finding that the statute was so broad as to “sweep indis-

cruninately,” and thus run afoul of the First Amendment.

Certainly none of these cases stands for the proposition

that a statutorily permissible jail sentence for a contempt

conviction violaces the First Amendment rights of the

person sentenced or of any other person. The term “chill”

as referring to fragile First Amendment rights is a deli-

eate term of art. Dombrowski vy. Pfister, 380 U. &S. 479

(1965). To punish criminal conduct is not necessarily to

“chill;” if such were the case, all penal sanctions would be

deemed “chilling.”

Petitioners heavily rely upon the fact that their con-

duet was nor-violent. .\gain, they fail te discern the seri-

onsness of their acts. By their willful and deliberate defi-

ance of the law, they contributed in the most direct terms

to an atmosphere of lawlessness and violence. Damage

to the public is no less real because it does not involve

violent acts. The public is not a mere ahstraction and

the injury to it caused hy petitioners’ conduct cannot. be

disputed. In light of these considerations, the sentences

imposed by the trial court were not improper.

joe é

21

III

Petitioners, having failed to move to dissolve or

modify the injunction, may not, under the doctrine 2f

Walker v. City of Birmingham and United States v.

United Mine Workers, attack the constitutionality of

said injunction in collateral contempt proceedings.

Petitioners contend ‘“at the Sunerior Court of New

Jersey, Appellate Division, misapplied Walker v. City of

Birmingham, 388 U. 8. 307.8 Respondent s1bmits that the

New Jersey courts correctly applied the doctrine of

Walker «nd that petitioners, not having moved to dissolve

er modify the injunction, are estopped from doing so in

collateral contempt proceedings.

Petitioners’ attempt to distinguish the New Jersey con-

tempt procedure from that in Welker; no such distinction

exists. It is well settled in New Jersey that a constitutional

attack againct an injunction is not available to a defend-

ant as a defense ia a collateral contempt proceeding. See

in re Carton, 48 N. J. 9 (1966), 222 A. 2d 92. For other

jurisdictions, see Kasper v. Brittain, 245 F. 2d 92, 96 (6th

Cir. 1957); Reich v. United States, 239 F. 2d 134, 138

(ist Cir. 1926); McLeod v. Majors, 102 F. 2d 128 (5th

Cir. 1939); BcAm v. New York Siock Exchange, 80 F. 2d

211, 214 (2d Cir. 1935). Even an erroneous decree must

be obeyed until it is set aside by orderly review. If a

pavty can make himself a judge of the validity of orders

which have been issued, and by his own act of disobedi-

ence set them aside, then the courts are impotent and the

3The Appellate Division reached the question of the applic-

ability of Walker oniy in the Joan Stevens case, as the injune-

tion itself was not attacked in the N.7.U. case at the Appellate

Division level.

22

judicial power a mere mockery. Gompers v. Bucks Stove

Range Co., 221 U. S. 418, 450 (1911). An injunctive de-

cree is executory and continuing as to the object to be ob-

tained, and operates until vacated, modified or dissolved.

Western Union Telegraph Co. v. International Brother-

hood, 133 F. 2d 955, 957 (7th Cir. 1943). In Howat v.

Kansas, 258 U. S. 181 (1922), this Court held that an in-

junction must be obeyed.

however erroneous the action of the court may be,

even if the error be in the assumption of the valid-

ity of a seeming but void law going to the merits

of the case. It is for the court of first instance to

determine the question of the validity of the law,

and until its decision is reversed for error by or-

-derly review, either by itself or by a higher court,

its orders based on its decision are to be respected,

and disobedience of them is contempt of its lawful

authority, to be punished.

Callous disregard for a court order cannot be tolerated.

The case sub judice is, more than was Walker, one in

which petitioners had ample opportunity to move against

the injunction and no-strike rule which they attack here.

Petitioners are teachers who presumably, from the first

day they engaged in their profession, knew of their State’s

policy regarding strikes by public employees. We are aot

here dealing with persons violating an injunction against

picketing in support of Negro efforts to secure long-over-

due civil rights, as in Walker. In Walker there was no

important principle of state policy, embodied in law, coun-

terveiling defendants’ First Amendment rights. If peti-

tioners in Walker were to be denied the opportunity to

attack the validity of the injunction in collateral contempt

proceedings, a fortiori petitioners here ought not be per-

23

mitted to attack either the no-strike rule or the injunction,

when they failed to move against the injunction in the

issuing court and never, until their Petition for Stay,

raised the question of the constitutionality of New Jer-

sey’s common-law rule against strikes by public employees.

(See Point I, supra).

“Civilization involves subjection of force to reason, and

the ageney of this subjection is law.” Pound, “The Future

of Law,” 47 Yale L.J. 1, 13 (1937).

Petitioners attempt to distinguish the present case from

Walker, arguing that the rule of Walker cannot possibly

apply to persons not named as parties to the injunction

proceeding. Some of petitioners were named parties in the

injunction proceeding. There is no dispute that all peti-

tioners had actual notice of the injunction. It would have

been physically impossible to name as a party every per-

son who might participate in the illegal strike.

To permit the constitutional attack now urged by peti-

tioners would encourage persons dissatisfied with a law

or court order and with opportunity to attack the validity

of same to determine for themselves what the law ought

to be and act accordingly. See opinion of Mr. Justice

Frankfurter (concurring) in Mine Workers, supra, 330

U. S. 258, 307. Mr. Justice Stewart observed in Walker

that “in the fair administration of justice no man can be

judge in his own case .... [RJespect for judical process

is a small price to pay for the civilizing hand of law,

which alone ean give abiding meaning to constitutional

freedom.”

FREE NUE PANG I HY

il a ee ks

24

IV

Neither the common-law prohibition against public

employee strikes in New Jersey nor the injunction is-

sued ex parte in the case sub judice were violative

of the First Amendment, and both are in accord with

the decisions of this Court.

A. New Jersey law barring strikes by public employees is

constitutionally valid.

Petitioners state that they “do not argue for an abso-

lute right to strike” (Petition for Certiorari, at p. 25).

They thus concede that the State may, in some instances,

forbid strikes by publie emplovees. They contend, how-

ever, that the common-law rule of New Jersey forbidding

strikes under which the injunction in the instant ease was

granted, lacks preeision and is, therefore, violative of the

First Amendment.

Strikes by public employees are prohibited not only

in New Jersey but in many other jurisdictions as well.

N. J. Turnpike Authority v. American, ete. Employees,

83 N. J. Super. 389, 395, 200 A. 2d 134, 1388 (Ch. Div.

1964); Donevero v. Jersey City Incinerator Authority,

75 N. J. Super. 217, 222, 182 A. 2d 596, 599 (Law, Div.

1962); McAleer v. Jersey City Incinerator Authority, 79

N. J. Super. 142, 146, 190 A. 2d 891, 893 (App. Div. 1963) ;

see also Norwalk Teachers’ Ass'n v. Board of Education,

138 Conn. 269, 83 A. 2d 482 (Sup. Ct. Err. 1951); City of

Los Angeles Bldg. & C. Tr. Council, 94 Cal. App. 2d 36,

210 P. 2d 505 (D. C. App. 1949), reaffirmed 109 Cal. App.

2d 81, 240 P. 2d 16 (D. C. App. 1952) ; City of Manchester

v. Manchester Teachers Guild, 100 N. H. 507, 131 A. 2d

59 (Sup. Ct. 1957); City of Alcoa v. International Broth.

of Elec. Wkrs., 203 Tenn. 12, 308 S. W. 2d 476 (Sup. Ct.

29

1957); City of Pawtucket v. Pawtucket Teachers’ Allt-

ance, 87 R. I. 364, 141 A. 2d 624 (Sup. Ct. 1958) ; Port

of Seattle v. International Longshore & W. U., 52 Wash.

2d 317, 324 P. 2d 1099 (Sup. Ct. 1958) ; Cornell, “Collec-

tive Bargaining by Public Employee Groups,” 107 U. Pa.

L. Rev. 43, 54 (1958) ; Note, “Labor Relations in the Pub-

lic Service,” 75 Harv. L. Rev. 391, 407 (1961); Note,

“Union Activity in Public Employment,” 959 Colum. L.

Rev. 348, 358 (1955); Annot., “Union Organization and

Activities of Public Employees”, 31 A. L. R. 2d 1142

(1953).

Petitioners argue that the New Jersey rule is invalid

as overbroad in that the “eases speak in absolutes in

terms of the kind of public employees the strike ban en-

compasses” (Petition for Certiorari, at p. 21). In In re

William Block, et als, 50 N. J. 494, 236 A. 2d 584 (1967),

the New Jersey Supreme Court. stated that “(W)hen gov-

ernment undertakes itself to meet a need, it necessarily

decides the public interest requires the service, and its

employees cannot reverse or frustrate that decision by a

concerted refusal to meet that need.” 50 N. J. at 499, 236

A. 2d at 592. Respondent submits that no New Jersey

case has specifically held that the ban on strikes by public

employees is applicable to every public employee without

exception. The cases cited by petitioners all involve

public employees employed in furnishing services clearly

essential to the public. In re William Block, et als, supra;

Beard of Education, Borough of Union Beach v. N.J.E.A.

et al, 53 N. J. 29, 247 A. 2d 867 (1968). It is not incon-

eeivable that the New Jersey courts might find that par-

ticular public employees engaged in furnishing a service

that could, by no stretch of the imagination, be deemed

“essential,” may legally withhold their services. We

need not speculate what the New Jersey courts would do

26

with such a case, however; there are none who would ar-

gue (least of all petitioners) that public education is a

non-essential governmental service. In any event, peti-

tioners’ argument that the rule of law is unconstitution-

ally imprecise becouse it applies to all public employees

is unpersuasive. “Pubiic employees” are a group not

difficult to define. Certainly the mere size of the group of

persons to which a rule of law is addressed is no consti-

tutional impediment. It is, respondent submits, quite

reasonable for a State to adopt a policy ‘esigned to in-

sure the continuous flow to the people of the services for

which they pay and which they are rightly due.

It should be noted that while the New Jersey courts

have not yet failed to uphold the no-strike dovtrine, it has

been made clear that this dcctrin>, though deemed to flow

from Article I, par. 19 of the 1947 New Jersey Constitu-

tion. is not constitutionally dictated. In Board of Edu-

cation, Borough of Union Beach v. N.J.E.A. et al, supra,

the New Jersey Supreme Court stated:

It of course is essential to the constitutional prom-

ise of an ordered society that government shall be

able to govern, and we may therefcre assume the

Legislature could not legislate the branches of gov-

ernment into idleness. Strikes do tend to bring gov-

ernment to a halt. Yet it need not follow that the

Legislature could not find strikes to be tolerable

within certain area and limits. As to a public serv-

ice the Constitution does not expressly require to

be furnished, the legislature, which may withdraw

the service, may find some interruption should be

permitted. And even where the Constitution re-

quires a public service to be rendered, as in the

ease of free public schools, Art. VIII, § 4, para. 1,

there may be room for legislative judgment as to

27

what interruptions are compatible with the fulfill-

ment of that mandate. (53 N. J. at 45, 247 A. 2d

at 876).

Thus, the New Jersey rule against public employee strikes

represents a valid policy of governmental self-defense

which remains flexible and subject to sensible modifica-

tion.

New Jersey having voiced a valid public policy

of not permitting strikes by public employees, the

courts of that State can constitutionally enforce that pol-

icy by granting injunctive relief where the rule is vio-

lated. In International Brotherhood, etc. v. Vogt, Inc.,

354 U. S. 284 (1957), Justice Frankfurter discussed the

realization by the Court that “the broad pronouncements,

put not the specific holding of Thornhill v. Alabama, 310

U. S. 88 (1940) had to yield ‘to the impact of facts un-

foreseen ...’ Cases reached the Court in which a State

had designed a remedy to meet a specific situation or to

accomplish a particular social policy. These cases made

manifest that picketing, even though ‘peaceful’, involved

more than just communication of ideas and eould not be

:mmune from all state regulation.” 354 U. S. at 289.

Giboney v. Empire Storage and Ice Co., 339 U. S. 460

(1949); Hughes v. Superior Court, #9 U. S. 460 (1949) ;

Intl. Brotherhood of Teamsters Union v. Hanke, 339 U.S.

470 (1949). Justice Frankfurter continued: Ne

This series of eases, then established a broad field

in which a state, in enforcing some public policy,

whether of its criminal or its civil law, and wheth-

er announced by its legislature, or its courts, could

constitutionally enjoin peaceful picketing aimed at

effectuation of that policy. 304 U. S. at 293.

28

The strike by petitioners was precisely that form of con-

duct which the Court held that a State might validly en-

join in Vogt, supra; t.e., the strike aimed at the effectua-

tion of the valid state policy of providing free public

education. Petitioners have stated that they do not argue

for an absolute right to strike. Yet such an absolute

right is precisely what must logically follow if teachers

are permitted to strike. For there are few, if any, public

services more essential to the citizens of Newark, or any

other city, than public education.

Petitioners further attack the New Jersey rule of law

as overbroad in that “a wide range of group activity in-

volving concerted employee efforts is deemed to be a

strike or, if not a strike, nevertheless prohibited”. Re-

spondent is constrained to disagree. While ihe courts

must, of necessity, enjoin activity other than a self-de-

noted “strike”, it dees not necessarily follow that the New

Jersey Courts will sanction a “wide range” of impinge-

ment on First Amendment-protected activity. In Board

of Education, Borough of Union Beach vy. N.J.E.A., et al,

supra, cited by petitioners, the New Jersey Supreme

Court upheld an injunction against “coercive activity,”

i.e. sanctions against individual teachers for their re-

fusal to participate in a mass-resignation campaign. In

that case, too, the court was confronted with an argument

that the bar to activity was too broad and, thus, violative

of the First Amendment. The court rejected this conten-

tion, stating that:

Individuals, severally or in association, of course

have the right to denounce a public body, its of-

ficers, and its programs in the most searing terms,

and even with a wide margin of error. See New

York Times Co. v. Suilivan, 376 U. S. 254, 84 S.

Ct. 710, 11 L. Ed. 2d 686 (1964); Garrison v. Loui-

oe nllealt el Oma

29

$e tao tht Sane mina D:

3 siana, 379 U. S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125

; (1964) ; Rosenblatt v. Baer, 383 U. S. 75, 86 S. Ct.

669, 15 L. Ed. 2d 597 (1966); Ashton v. Kentucky,

384 U. S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469

(1966); St. Amant v. Thompson, 390 U. S. 727, 88

S. Ct. 1323, 20 L. Ed. 2d 262 (1968). Such con-

demnation may indeed be “coercive” and be in-

tended to “eompel” a public agency to bow to the

wishes of the critics. It is the right of the indi-

vidual and it serves equally the collective interest

of society, thus to bring government before the bar

of public opinion, thereby to alter its course.

But although citizens, individually and in associa-

tion, may thus seek to “coerce” a public body to

their wish, there is no right to achieve that end by

disabling the public body from acting at all. There

is no right to “compel” government to change its

‘ways by blocking the administration of the law un-

til it yields. And this is all the trial court con-

demned. It is perfectly clear from its opinion that

by “coercive activity” it meant the scheme of sanc-

itons before it which was intended thus to disable

the Board from performing at all by depriving it

of necessary personnel. 53 N. J. at 4041.

Thus, the New Jersey rule has not been aimed at pro-

hibiting any sort of concerted employee efforts, but only

those which are specifically violative of the no-strike rule

of law. ‘The Union Beach case is not reminiscent of the

Philadelphia Cordwainers case as petitioners suggest but

is, rather, a reaflirmation of the First Amendment rights

of teachers, viewed in the perspective of a balancing of

those rights with the rights of tke public to the services

which public school teachers h: ve undertaken to provide.

Petitioners next argue that the rule of law is consti-

tutionally unsound in that it does not permit defenses of

excuse or justification. No authority is cited to indicate

that excuse or justification are proper considerations for a

trial court in determining whether violation of an injunc-

tion constitutes contempt of court which may be punished.

Ordinarily, persons enjoined are bound at their peril to

heed the mandate of an injunction until it is set aside by

orderly judicial process. Smotherman v. United States,

186 F. 2d 676 (10th Cir. 1950). Petitioners have at no

time suggested that it was impossible for them to honor

the injunction. The trial court was under no obligation

to hear, nor would it have been correct in considering,

statements of petitioners as to why they felt they were

justified in striking. Particularly since petitioners did

not move to dissolve the injunction, they ought not be

permitted to excuse or justify their violation of same.

Walker v. City of Birmingham, 388 U. S. 307 (1967).

See Point III, supra.

Finally, petitioners argue that New Jersey law does

not “require the public employer to submit any proof

to support its claim of irreparable injury.” This state-

ment is incorrect. Rule 4:52-1 of the Rules Governing

Courts of the State of New Jersey, provides that an order

to show cause “shall not, however, include any temporary

restraints against the defendant unless he has either been

given notice of the application or consents thereto or it

appears from specific facts shown by affidavit or veri-

fied complaint that immediate and irreparable damage

will probably result to the plaintiff before notice can be

served or informally given and a hearing had thereon.”

The rule is clear: if there is no showing of irreparable in-

jury, there may be no ex parte temporary restraint. It is

equally clear that the courts of New Jersey do not lightly

issue injunctions. To authorize an injunction, the court

must be reasonably satisfied that the threatened harm is

likely to be committed and that defendant intends to per-

petrate the act sought to be enjoined. New Jersey State

AFL-CIO v. State Federation of District Boards of Edu-

cation, 93 N. J. Super. 31, 224 A. 2d 519 (Ch. 1966). “Ir-

reparable injury” sufficient to warrant an injunction is an

injury which is material and for which pecuniary damages

would not afford adequate compensation. Union Beach,

supra. In the instant case a finding of impending, immedi-

ate, substantial and irreparable injury was made by the

trial judge and embodied in the original Order to Show

Cause and Interim Restraint. This case is therefore dis-

tinguishable from School District for City of Holland,

Ottawa and Allegon Counties v. Holland Educational Asso-

ciation, 390 Mich. 314, 157 N. W. 2d 206, 210 (1968) cited

hy petitioners.

Thus New Jersey law, embodying a valid policy against

strikes by public employees, is not constitutionally de-

ficient.4

B. The injunction issued by the Superior Court of New

Jersey, Chancery Division, was neither overbroad nor

vague.

The Restzaining Order issued by the Chancery Division

was concededly broad in scope. Yet, not all union activi-

ties were banned. Nor were teachers enjoined from ex-

pressing their personal views concening the situation or

their opinions of the Newark Board of Edueation. Thus,

the injunction was net designed to prevent expression of

grievances by teachers or others. Union Beach, supra.

Yet, petitioners contend that the injunction was overbroad

and vague and must, therefore, fail.

4See United Federation of Postal Clerks v. Blount, No. 70-328,

& decided by this Court on October 12, 1971.

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Petitioners contrast the holdings of the New Jersey

courts in the instant ease with that of the California

Supreme Court in Jn re Berry, 65 Cal. Rptr. 273 (1968).

The latter case is, however, distinguishable on several

grounds. In Berry, the injunction was not limited to the

prohibition of a threatened and imminent strike, as in

the instant case. “On the contrary, it also proseribe[d]

a vast range of activities which the union and its sup-

porters might properly utilize to voice and publicize their

demands.” Nothing in the injunction here under consid-

2ration prevented or was designed to prevent the union

and its members from publicizing their demands. More

significantly, 7n Re Berry was decided by a court in a

state which does not hav2 a rule of law prohibiting strikes

by publie employees. Even the California Supreme Court,

without a no-strike rule, acknowledged that it might be

appropriate under given circumstances to enjoin strikes

of public employees. The thrust of Berry, then, lends

little support to petitioners’ argument.

Nor is the ease at bar similar to NAACP y. But-

ton, 371 U. S. 415 (1963). In Button, this Court. econ-

eerned with the prospective enforcement of a_ statute

which appeared overbroad on its face, was properly un-

willing to adopt a wait-and-see approach as to state court

interpretation narrowing the parameters of the act’s

scope. In the instant case, this Court has before it the

manner in which the New Jersey courts have interpretea

and enforced, through contempt proceedings, the language

of the Restraining Order. No one was found to have been

in contempt for expressing an ecpinion, for “agr:eing,”

for “encouraging,” or for “sanctioning”. “Legislative

judgment” was indeed cxercised hy the trial court in this

ease. In at least one instance, a group of non-teachers

who were charged with contempt had the charge against

them dismissed.

33

Nor does the mere fact that miany of the petitic..crs

were not named in the injunction make the injunction

over-broad or vague. In the emergency out of which this

matter arose, there was not time to determine which teach-

ers ought to be named as defendants. Additionally, peti-

tioners do not contend that they were unaware of the

existence of the Order or of its applice bility to them.

Respondent submits that there was no potential

for terror in the Restraining Order. Petitioners

never moved to dissolve or modify the Order, notwith-

standing a short notice provision (2 days) for so doing.

They did not seek to have the injunction narrowed or in-

terpreted. ~“hether or not their failure to act constituted

a waiver (see Point III, supra), such conduct would tend

to weaken petitioners’ contention that terror lurked in the

words of the injunction. No one was terrorized by the

injunction, especially petitioners. The language of the

injunction embodied the desire of the court to pre-

vent illegal strike activity, not to censor or impose limi-

tations or petitioners’ rights of free speech and lawful

assembly.

C. Carroll v. President and Commissioners of Princess

Anne is distinguishable from the instant case.

In Carroll v. President and Commissioners of Princess

Anne, 393 U. S. 175 (1968), this Court held invalid a 10-

day restraining order issued by a Maryland Circuit Court,

which order prevented a planned anti-Negro, anti-Semitic

rally.

The Court stated:

There is a place in our jurisprudence for ex parte

issuance, without notice, of temporary restraining

ot

orders of short duration; but there is no place

within the area of basic freedoms guaranteed by

the First Amendmen: for such orders where no

showing is made that it is impossible to serve or

to notify the opposing parties and to give them an

opportunity to participate. (Emphasis added).

Here, unlike Carroll, supra, respondent set forth specific

grounds militating against formal notification of petition-

ers prior to the issuance of the interim Restraining Or-

der and the Court was fully satisfied that delay would

cause immediate, irreparable injury to the public. The

Order to Show Cause and Interim Restraint provided in

pertinent part:

This matter being opened to the court by Victor

A. DeFilippo, attorney for plaintiff, and the Court

having read the complaint filed herein and the affi-

davits attached thereto, and it appearing to the

satisfaction of the Court that:

A. A strike prohibited by law is being contemplated

and is about to be voted upon by the defendant

Newark Teachers Unicn, Local 481, American Fed-

eration of Teachers, A.F.L.-C.I.0O., that the strike

which is being contemplated is a strike by teachers

and other public employees of the plaintiff, and

that the said strike and picketing and other related

acts in support of the strike are seriously threat-

ened unless they are restrained;

B. Immediate, substantial and irreparable injury

and damage will result to and will be sustained by

the plaintiff, the pupils in the public schools of

the school district of Newark, New Jersey and to

the general public of the City of Newark from the

et

30

said strike and from the said picketing and other

related acts before notice of application for a tem-

porary restraint or an interlocutory injunction

pertaining to the said strike, picketing and other

related acts can be served and a hearing had there-

on;

C. The defendant, New Jersey Federation of Teach-

ers has given its support for the said strike. The

other defendants are officers of the defendant,

Newark Teachers Union, Local 481, American I'ed-

eration of Teachers, A.F.L.-C.L.0.;

D. Plaintiff has no adequate remedy at law.

Additionally, the court issuing the interim restraint af-

forded those enjoined the protection of a provision per-

mitting them to move for dissolution or modification of the

restraints on two days notice to respondent. Notwithstand-

ing the existence of this protection, petitioners never

moved to dissolve or modify the restraints. Walker v.

City of Birmingham, 388 U. 8S. 307 (1967). Instead, they

proceeded to violate the injunction and the law.

The instant case differs from the Carroll decision in an-

other material and significant respect. The case sub

judice involves a strike in violation of the State’s law.

The conduct sought to be restrained was a violation of the

law per se.

Thus, Carroll is inapplicable to the facts in the case at

bar. Petitioners were about to embark on a course of

conduct that was patently illegal and there was a finding

by the court that immediate and irreparable injury would

result before notice could be given and a hearing held.

36

CONCLUSION

For the reasons set forth, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

JosePH P. Lorpt,

Essex County Prosecutor,

Attorney for Respondent.

By: R. Benzamin CouHEn,

Assistant Prosecutor.

Davi Noau Dusrow,

Assistant Prosecutor.