Opposition Brief — Jersey City Education Ass'n v. New Jersey

CLERK

£, ROBERT SEAVER, CLERK

heceetNOP

JERSEY CITY EDUCATION ASSOCIATION, LOUIS 7.

SCIALLI, THOMAS FAVIA, SARAH GROCHOW, GAIL

ROMANOWSKI, DORIS E. FILLIPPONE, ETHEL P.

BROWN, DANIEL CUPO, GAIL HALL, BARBARA

SCHNEIDER and ROBERT ROGENSTEIN, individually and

as Officers end Members of the Executive Board of the Jer-

sey City Education Association, and “RANK AMARATO,

MARY DAVIS, MARGARET DEL PRETE, DIANNE FER-

RARA, BERNICE MACCHIA, NEIL PAGANO, MICHAEL

WARJANKA, MAE McCOMB, MYRA DANIEL,

Petitioners,

v3.

STATE OF NEW JERSEY,

Respondent.

On Petition for a Writ of Certiorari to the Superior Court .

of New Jersey, Appellate Division

}

|

_ BRIEF IN OPPOSITION

GmorrrREY GAULKIN,

Prosecutor Hudson County,

595 Newark Avenne, ;

Jersey City, New Jersey 07306,

Attorney for Respondent.

1-226

Rea

TABLE OF CONTENTS

PAGE

STATEMENT OF THE CASE 1

Point I—The State’s right to prohibit strikes by

public employees is not violative of petitioners’

rights under the First and Fourteenth Amend-

ments, and does not present a substantial federal

question for examination of the right to organize 4

Point I]—The injunctive order was not unconsti-

tutional for overbreadth and vagueness and did

not prohibit constitutionally mandated actions ...... 9

Point [II—The findings of the trial Court that peti-

tioners had violated the injunctive order was sup-

ported by the evidence and presents no constitu-

tional question 11

Porynt IV—Each defendant below had adequate

notice of the order to show cause mae

Porynt V—Equal protection of the laws and due

process guaranteed by the Fourteenth Amend-

ment were not denied petitioners by the imposition

of a fine of $10,000 on the New Jersey Education

Association and the Court below was not limited

to the maximum fine set forth in N.J.S. 2A:169-4... 16

CoNCLUSION 19

Cases Cited

Block, In re, 50 N. J. 494 (1967) 4,12

Bloom v. Illinois, 391 U. 8S. 194 (1967)...... 16,17

att |

ii TABLE OF CONTENTS

PAGE

Board of Education v. New Jersey Education Ass‘n.,

et al., 53 N. J. 29, 247 A. 2d 867 (1968) 4-6

Buehrer, In re, 50 N. J. 501 (1967).... 12, 14, 17

Cheff v. Schnackenberg, 334 U. S. 373 (1966)................ 17

Cross Co. v. United Automobile Workers, 377 Mich.

202, 1389 N. W. 2d 694 (1966) 14

Cunningham v. Maroney, 397 F. 2d 724 (3rd Cir.

1968), cert. den. 393 U. S. 1045 (1969) 11

Delaware River and Bay Authority v. International

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

138, 211 A. 2d 789 (1965) 4,6,8

Donevero v. Jersey City Incinerator Authority, 75

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

rev’d on other grounds 4,3

Frank v. United States, 395 U. S. 147 (1968)............. 17

Garrigan v. U. S., 163 F. 16 (7th Cir. 1908), cert.

denied 214 U. S. 514 (1909) ae 14

Giboney v. Empire Storage Co., 336 U. S. 490 (1948) 7

Hart Cotton Mills, Ine. v. Abrams, et al., 231 N. C.

431, 578 S. E. 2d 803 (1950)....... 14

Head v. Special School District No. One, 182 N. W.

2d 887 (Minn. Sup. Ct. 1971) 6, 12

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

U. S. 284 (1957) 7

Jefferson City Teachers Association v. Board of

Education, 463 S. W. 2d 627 (Ky. Ct. App. 1971).... 6

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

TPIT sccichoczseicishaidestaceieieiceonedicastaitiniedeeniloasibanidaniesndeataa iia. 5

TABLE OF CONTENTS ili

McAleer v. New Jersey Incinerator Authority, 79

N. J. Super. 142, 190 A. 2d 891 (App. Div. 1963)... 4

McGowan v. Maryland, 366 U. S. 420 (1961)... 19

Mechanic v. Gruensfelder, 461 S. W. 2d 298 (Mo.

1970) 14

Minneapolis Federation of Teachers v. Obermeyer,

275 Minn. 347, 147 N. W. 2d 358 (1966)... 6

Mullane v. Central Hanover B. & T. Co., 331 U. S.

306, 70 S. Ct. 652, 94 L. Ed. 895 (1949) 15

New Jersey Turnpike Authority v. American Federa-

tion of State Employees, 83 N. J. Super. 389, 200

A. 2d 134 (Ch. Div. 1964) 4,6,8

Norwalk Teacher’s Association v. Board of Educa-

tion, 188 Conn. 269, 83 A. 2d 482 (1951) 6

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

141 A. 2d 624 (R. I. Sup. Ct. 1958) 6

Prouzan v. Board of Education, 25 Misc. 2d 945, 209

N. Y. S. 2d 966 (Spec. Term 1960), aff’d, 12 A. D.

2d 923, 215 N. Y. S. 2d 718 (Sup. Ct. 1st Dept.

1961), aff’d, 9 N. Y. 2d 911, 176 N. E. 2d 96, 217

N. Y. S. 2d 86 (Ct. App. 1961) 12

Railway Mail Association v. Cordi, 293 N. Y. 315,

56 N. E. 2d 721 (1944), aff'd, 326 U. S. 88 (1945)... 5,6

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

625, 242 N. E. 2d 802 (Ct. App. 1968) 6, 17

Rudikoff v. Byrne, 101 N. J. Super. 29 (Law Div.

1968) 15

State v. Standard Oil Co., 5 N. J. 281 (1950), aff'd,

341 U. S. 428 (1951) 15

ee

iv TABLE OF CONTENTS

PAGE

Thornhill v. Alabama, 310 U. S. 88 (1940) ~ 6

Thompson v. City of Louisville, 362 U. S. 199, 80

S. Ct. 624, 4 L. Ed. 2d 654 (1960) 3 11

U. S. v. Harris, 367 F. 2d 826 (2nd Cir. 1966).............. 17

U. S. v. United Mine Workers, 330 U. S. 258 (1947).. 8,18

Williams v. Pevton, 414 F. 2d 776 (4th Cir. 1969)...... 11

United States Constitution Cited

First Amendmert 4,7

Fourteenth Amendm nt 4,16

New Jersey Constitution Cited

1947—

Article 1, Paragraph 19 4,9

Statute Cited

N.J.S. 2A :169-4 16

Rule Cited

Rule 4:52-4 13

IN THE

Supreme Court of the WUniteh States

Ocroser Term, 1971

W-22¢

No-A=35 —

>.

a

JERSEY CITY EDUCATION ASSOCIATION, LOUIS T.

SCIALLI, THOMAS FAVIA, SARAH GROCHOW, GAIL

ROMANOWSKI, DORIS E. FILLIPPONE, ETHEL P.

BROWN, DANIEL CUPO, GAIL HALL, BARBARA

SCHNEIDER and ROBERT ROGENSTEIN, individually and

as Officers and Members of the Executive Board of the Jer-

sey City Education Association, and FRANK AMARATO,

MARY DAVIS, MARGARET DEL PRETE, DIANNE FEER-

RARA, BERNICE MACCHIA, NEIL PAGANO, MICHAEL

WARJANKA, MAH McCOMB, MYRA DANIEL,

Petitioners,

vs.

STATE OF NEW JERSEY,

Respondent.

On Petition for a Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

»

a

Statement of the Case

Petitioners seek a Writ of Certiorari to review a judg-

ment entered in the Appellate Division of the Superior

Court, on Ma, 21, 1971 reported in 115 N. J. Super. 42,

278 A. 2d 206 (App. Div. 1971), which affirmed a sum-

mary conviction for contempt of the Chancery Division

of the Superior Court of New Jersey. The Supreme Court

of New Jersey denied certification on July 7, 1971, 58

N. J. 603 (1971). On July 28, 1971, Mr. Justice Brennan

ordered a stay of the execution of the judgment pend-

ing the present petition.

The entire matter was precipitated by a strike of Jer-

sey City teachers and the Jersey City Education Associa-

tion commencing on or about February 9, 1970.

On February 8, 1970, the membership of the Jersey

City Edueation Association voted to strike on Monday,

February 9, 1970, the Jersey City School System (R. 195-4

to 197-22).

On February 9, 1970, of 1745 faculty members in the

Jersey City Sehool System, only 288 teachers attended

work (R. 86-1 to 6). At 11 A.M. that day, an Order to

Show Cause and restraint was issued by Hon. John J.

Lynch and was served the following day upon each of

the defendants named in such Order. In addition, the

Order to Show Cause was published in both the Hudson

Dispateh and the Jersey Journal newspapers (R. 2C0-19

to 25; R. 202-12 to 13).

On February 13, 1970, nine of the defendants herein,

who were not named in the original Order to Show Cause

but who had received rotification of the restraint against

participation in the strike were observed walking: in front

of School No. 12. These teachers did not attend school

between February 9 aud March 4, 1970 (R. 342-5 to 11).

On February 12, 1970, Judge Lynch issued an Order

stating that each of the defendants numed in the Order

to Show Cause was charged with contempt of Court in

that on February 11, 1970, after being served with copies

of Complaint and Order to Show Cause, they did refuse

to desist from striking. An Order for arrest of these in-

dividuals was also issued.

On February 19, 1970, Judge Lynch issued an Order

for arre-+ as to the other nine defendants herein charg-

ing cont :apt cf Court in that they, on February 13, 1970,

after having been informed of the injunction contained in

the Order of February 9, 1970, participated in a teacher

strike.

On March 18, 1970, Judge Lora found those defendants

named in original Order to Show Cause guilty of con-

tempt for failure to ohey tie injunctive Order of February

9, 1870. A fine of $10,000.00 was imposed on the Jersey

City Education Association. Execution of judgment was

stayed pending appeal.

On the same day, Louis Scialli, President of the Jersey

City Education Association was found guilty of contempt

and sentenced to three months in Hudson County Peniten-

tiary, two months of which were suspended, plus a $500.00

fine, and a one-year probation. This sentence was stayed

pending appeal.

In additicn, each defendant named in the original Or-

der to Show Cause of February 9, 1970 was sentenced

to three months in Hudson County Penitentiary (one

month to be in actual custody) plus a $500.00 fine.

The remaining individuals were each sentenced to thirty

days in the County Jail, twenty days suspended, and fined

$200.00 each; except Amarato, who was sentenced to thirty

days in County Jail, fifteen days suspended, and. fined

$250.00.

4

POINT I

The State’s right to prohibit strikes by public em-

ployees is not violative of petitioners’ rights under

the First and Fourteenth Amendments, an? does not

present a substantial federal question for e::amination

of the right to organize.

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

public employees, including teachers, do not have the right

to strike or picket against the government, whether fed-

eral, state or a political subdivision of the state. Boara

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. Inter-

national Organization of Masters, Mates and Pilots, 45

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

Incinerator 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. Americen Federation of State Employees, 83

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

A right to strike need not necessarily be an inherent

element of the right to organize, end the New Jersey

courts have recognized the distinctien between public and

private employment. Board of Educat‘on v. New Jersey

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

New Jersey Constitution, adopted in 1947, provides:

Persons in private emploment shall have the right

to organize and bargaim 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-

5

ances and proposals through representatives of their

own choosing. (Emphasis supplied.)

Thus, the legislature recognized the legitimate distinction

between public and private employment, and the court

(which has the responsibility of interpreting the New Jer-

sey 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 Incmera-

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

the court in interpreting that section 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 Con-

vention of 1947, p. 661.

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 bargain-

ing includes the right to strike and other aspects of the

private employer-employce relationship. See Railway Mail

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 Turn-

pike Authority v. American Federation of State Em-

ployees, supra, at 398, 200 A. 2d at 138-39. There is

10 constitutional prohibition preventing teachers from or-

ganizing under the banner of the New Jersey Education

Association for the purpose of collective action in the

presentation of grievances and proposals. They may not,

however, achieve that end by coercive methods such as

strikes, which would unlawfully halt the operation of the

schools and adversely affect the public health, safety, and

welfare. No constitutional issue is raised by this inter-

pretation 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 whom the State has an appreciable interest, do not

have the constitutional right to strike. See Jefferson City

Leachers Association v. Board of Education, 463 S. W.

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

District No. One, 182 N .W. 2d 887 (Minn. Sup. Ct.

et al., supra; Rankin v. Shanker, 23 N. Y. 2d 111, 295

N. Y. S. 2d 625, 242 N. EE. 2d 802 (Ct. App. 1968) ; Minne-

apolis Federation of Teachers v. Obermeyer, 275 Minn.

347, 147 N. W. 2d 358 (1966) ; Pawtucket v. Parent Teach-

er’s Alliance, 87 R. I. 364, 141 A. 2d 624 (R. I. Sup. Ct.

1958); Norwalk Teacher’s Association v. Board of Educa-

tion, 1388 Conn. 269, 83 A. 2d 482 (1951). Thus, conduct

which would otherwise be constitutionally permissible in

S

the private employment sector can constitutionally be pro-

hibited 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 refer to their conduct as “an

endeavor to communicate to the community the nature of

their dispute, the reasonableness thereof and solicit the

support of the community in an endeavor to convince

their employer that their employees have merit to their

proposals” (Petitioner’s Brief at 11), does not give rise

to a First Amendment question where the “endeavor to

communicate” was in vio|4tjgn 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 properly enjoined from picketing in violation of a

state law, even though the picketing involved dissemina-

tion of truthful information about a labor dispute. The

court reasoned at 502:

“(I)t has never been deemed an abridgement of free-

dom of speech or press to make a course of con-

duct illegal merely because the conduct was in part

initiated, evidenced, or carried out by means of lan-

guage, either spoken, written or printed. See Fox

v. Washington, 236 U. S. 273, 277; Chaplinsky v.

New Hampshire, 315 U. S. 568.”

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 enacted

anti-injunction laws to prevent abuses resulting from its

8

use in labor disputes, it was held not to be applicable

to disputes, between the state or any political subdiv’ ‘on

and its own employees. U.S. v. United Mine Wor. 2rs,

330 U. S. 258, 272 (1947); N. J. Turnpike Authority v.

Amer‘:an Federation of State Employees, supra; Dela-

ware River and Bay Authority v. International Organiza-

tion of Masters, Mates and Pilots, supra.

Petitioners question the “non-essentiality” of the teach-

crs’ function and the State’s interest in it when compared

with that of a fireman or policeman. The New Jersey

Suprme Court in holding that employees of the Delaware

River and Bay Authority who operated ferries had no

right to strike as public employe 3, referred to this posi-

tion as

“an ill-defined concept of doubtful strength ...

(which) has wisely been rejected, in the cases deal-

ing with the prohibitory policy against strikes by

public employees.” Delaware River and Bay Au-

thority, supra, at 146, 211 A. 2d at 793.

The suspension of the fundamental role of the educa-

tional system in any state woald clearly be inimical to

the state’s interest in the education of its young and wel-

fare of its citizenry. Under the circumstances as set

forth above, petitioner’s argument that a prohibition upon

their striking constitutes a violation of rights under the

First and Fourteenth Amendments does not present a

question which merits review by this Court.

9

POINT II

The injunctive order was not unconstitutional for

overbreadth and vagueness and did not prohibit

constitutionally mandated actions.

Petitioners contend that Article I, para. 19 of the

New Jersey Constitution granted to petitioners a right

to abser:t themselves from school in order to attend a

meeting of the Board of Estimate of Jersey City on Feb-

ruary 11, 1970. They argue that such conduct should not

have been found viclative of the injunctive order issued

February 9, 1970 and served upon them on February 10,

1970. Clearly the Scialli group, as officers and members

of the Executive Board of the Jersey City Education As-

sociation, played an integral role in the strike vote of

February 9 and resultant work stoppage. The record of

the trial below indicates that, above and beyond the mere

presence of certain petitioners at the Board of Estimate

meeting during normal school hours, which presence there-

by caused absence from school without excuse or explana-

tion, in violation of school regulations, there was consider-

able independent evidence that a strike was in progress

and that the petitioners were participating in the strike.

Petitioner’s involvement in such a concerted and unau-

thorized work stoppage cannot be construed as .constitu-

tionally protected conduct under New Jersey Constitution,

Art. I, §19.

Officers and members of the Executive Board of the

Jersey City Education Association were served on Feb-

ruary 10, 1970, with copies of the Order to Show Cause

issued by Judge Lora (R. 202-14 to 209-10). The restrain-

ing order clearly prohibited the defendants named therein

from further participation in the strike. Yet the very

10

next day, following service upon each named individual,

the restraining order was undeniably ignored. Petitioners

herein assert that their absence from work on Fevruary

11 was a mere exercise of the right to organize, the right

of free speech, petition and assembly. This argument

is blithely oblivious to the plain truth that an illegal

teachers’ strike was in progress, and that these petitioners,

as well as the great majority of the membership of the

Jersey City Fducation Association, of which these peti-

tioners comprised the officers and Executive Board, were

participating in such strike by refusing to attend classes.

The fact that the petitioners on February 11, 1970, while

they were staying away from classes, as they had done

on the two school days previous to February 11, were

found to be attending a meeting of the Association can-

not reasonably mitigate or even explain why they did

not report for work. That the meeting could not have

been scheduled for a time outside of the normal school

hours cannot be seriously maintained.

In addition, the absence from school of these petitioners,

without excuse or explanaticn on February 11 should be

considered in conjunction with other facts surrounding

these absences. The petitioners were leaders of the or-

ganization which participated in the strike. They absented

themselves from work, without explanation, under circum-

stances which rule out excusable absence. Their claim of

constitutional privilege in this respect is ill-founded and

does not merit review by this Court.

11

POINT III

The findings of the trial Court that petitioners had

violated the injunctive order was supported by the

evidence and presents no constitutional question.

The scope of federal review of a decision of a state

court is limited solely to the question of whether any sup-

porting evidence was in the trial record. The probative

strength of such evidence, or the supporting of such evi-

dence, is not a constitutional issue. Thampson v. City

cf Louisville, 262 U. S. 199, 80 S. Ct. 624, 4 L. Ed. 2d ©

654 (1960); Williams v. Peytow, 414 F. 2d 776 (4th Cir.

1969); Cunningham v. Maroney, 397 F. 2d 724, 725 (3rd

Cir. 1968), cert. den. 393 U. S. 1045 (1969).

In the case sub judice proof of violation of the injune-

tion order was not only submitted by the State but was

clearly sufficient to justify the conclusion reached by the

Court.

The evidence adduced at trial indicates that on Sunday,

February 8, 1970, a meeting of the Jersey City Educa-

tion Association took place, during which meeting the de-

cision was made to strike the Jersey City Schools the

next morning (R. 195-6 to 197-22). Francis McCarthy,

Assistant Superintendent of Schools, testified that al-

though the total staff of the Jersey City Schcol System

was 1/43 members, from February 9 until March 2, 1970,

the aaily attendance of school personnel varied between

288 and 400 (R. 86-1 to 87-2). The normal rate of teacher

absences had been approximately 8 to 10%; the rate of

avsence between February 9 and March 2, 1970 was ab-

normally high ‘R. 89-21 to 91-8). During this period

picket lines were observed at several schools. Various

officers and members of the Jersey City Education Asso-

12

ciation were, on February 10, 1970, served with copies

of the Order to Show Cause issued by Judge Lynch (R.

202-14 to 209-10). The Order was published in two local

newspapers (R. 200-19 to 25). Defendants herein who

were not named in the original Order to Show Cause were

seen picketing in front of School No. 12 on February 13,

1970 (R. 340-16 to 343-19).

‘Phe State submits that the above facts fully support

the trial Court’s finding of violations of the Order to

Show Cause. In Re William Block et als., 50 N. J. 494

(1967) ; In Re Ruth M. Buehrer et al., 50 N. J. 501 (1967).

There can be no serious doubt that a strike was in

progress and that these petitioners, by their unexplained

absence from school, were participating in such strike.

Teachers who absent themselves from school subsequent

to circumstances which are clearly indicative of a work

stoppage, are in effect “on strike”. See Head v. Special

Schooi District No. One, supra; Prouzan v. Board of

Education, 25 Mise. 2d 945, 209 N. Y. S. 2d 966 (Spee. Term

1960), aff'd 12 A. D. 2d 923, 215 N. Y. S. 2d 718 (Sup.

Ct. lst Dept. 1961), aff'd 9 N. Y. 2d 911, 176 N. E. 2d

96, 217 N. Y. S. 2d 86 (Ct. App. 1961).

POINT IV

- Each defendant below had adequate notice of the

order to show cause.

Counsel for defendants conceded at the trial that those

individuals whose names appeared in the original Order

to Show Cause had been properly served with the Order

(R. 201-8 to 202-2). However, the issue of notice and

knowledge of the outstanding injunctive Order was raised

and is re-asserted on appeal as to those defendants whose

Die renee nomen ng

13

names did not appear on the Order of February 9, 1970,

and who were not personally served. The trial Court

found that these defendants were sufficiently notified of

the existence of the restraining Order, and that the re-

straint applied to all teachers in the J ersey City School

System, by the publication pursuant to direction of J udge

Lynch, of full page reproductions of the Order to Show

Cause on February 10, 1970, in both the Hudson Dis-

patch and the Jersey Journal (R. 405-12 to 406-7). De-

fendants attack this finding.

The Court’s conclusion that there indeed was notice

was based in part upon the numerous newspaper articles

admitted on the issue of notice (R. 187-3 to 9), many

of which clealy indicate that Jersey City Teachers had

been ordered by Judge Lynch not to strike. Also con-

sidered was the fact that the Order of Arrest as to the

defendants on February 19, 1970, referred to alleged ac-

tivities on February 13, 1970, which was several days

after the original Order that Judge Lynch issued and was

published in the previously mentioned newspapers. Un-

der the circumstances, an inference that the defendants

had received reasonable notice was not improper.

Apparently, notice rather than service of a restraining

Order is determinative of a defendant’s culpability under

the law. Rule 4:52-4 of -he Courts of the State of New

Jersey specifically provides that:

“Every order granting an injunction and every re-

straining order shall set forth the reasons for its

issuance .. . and is binding only upon such parties

to the action and such of their officers, agents, em-

ployees, and attorneys, and upon such persons in

active concert or participation with them as receive

actual notice of the order by personal service or

otherwise.” (Emphasis supplied.)

14

Moreover, in In Re Ruth M. Buehrer, et al., supra, the

New Jersey Supreme Court epparently recognized that

notice, not service of a restraining Order is a pivotal is-

sue in a prosecution for violation of such restraining

Order. See also Cross Co. v. United Automobile Workers,

377 Mich. 202, 1389 N. W. 2d 694 (1966); Hart Cotton

Mills, Inc. v. Abrams, et al., 231 N. C. 481, 578 S. E. 2d 803

(1950). Notice can be established by circumstantial evi-

dence. Mechanic v. Gruensfelder, 461 S. W. 2d 298

(Mo. 1970). In the instant case, the petitioners appar-

ently are sophisticated and well-educated people who pre-

sumably would know that strikes in tueir profession are

prohibited by state law. Certainly the lines of communi-

cation were sufficient to swiftly and decisively indicate

to them that a strike had been cal!ed, since they remained

out of school and indeed engaged in picketing. The ar-

gument that they had no notice of the restraining Order,

in such case, after it had been published in the two most

widely read newspapers in the County, implies a certain

naivete to these petitioners which does not conform with

the circumstances. The Appellate Division cited the case

of Garrigan v. U. S., 163 F. 16 (7th Cir. 1908), cert.

denied 214 U. S. 514 (1909) in showing that actual no-

tice may be inferable from the facts. Petitioners cite

the case (Brief at 21) as conclusive to the point that no-

tice could not be imputed from the mere fact of the ad-

vertisement of the injunctive order in the newspaper pub-

lication. However, certain distinguishable points are evi-

dent in this case. First, the case refers to an alleged

publication, thereby raising a question in the court’s mind

as to the actual existence of such publicity. In addi-

tion, the date of the case would also indicate that at that

time a newspaper as a reasonable means of notice might

be questioned. In the Garrigan case a private company

had obtained an injunction restraining various trade or-

15

ganizations and named individuals. Defendant therein was

a fireman and substantial proof was admitted indicating

that he was, in fact, assisting the police in quelling a riot.

Moreover, none of the named defendants who had received

service of the Order were ever involved in a violation of

the same.

It is submitted that the publication of the Order to

Show Cause in two local newspapers, each of county-wide

distribution, was a reasonable means of providing notice

to these defendants and that the finding of the Court that

defendants received notice of the Order was proper un-

der the circumstances of the case. Clearly, the court

would not be expected to serve the entire membership

of the Jersey City Chapter of the New Jersey Education

Association with copies of the restraining Order. The

court was faced w.th tle dilemma of notifying many

hundreds of persons in the shortest possible amount of

time in order to stave off what it no doubt considered a

threat of imminent injury to the public. In such a case

it was neither reasonably possible nor practical to give

more adequate notice than that afforded by publication.

Mullane v. Central Hanover B. & T. Co., 331 U. S. 306,

70 S. Ct. 652, 94 L. Ed. 895 (1949); State v. Standard

Oi Co., 5 N. J. 281, 308 (1956), aff'd 341 U. S. 428

(1951); Rudikoff v. Byrne, 101 N. J. Super. 29 (Law Div.

1968).

16

POINT V

Equal protection of the laws and due process guar-

anteed by the Fourteenth Amendment were not denied

petitioners by the imposition of a fine of $10,000 on

the New Jersey Education Association and the Court

below was not limited to the maximum fine set forth

in N.J.S. 2A:169-4.

The statute relied upon by petitioners in their brief,

N.J.S. 2A :169-4, is set forth as follows:

Except as otherwise expressly provided, a person

adjudged a disorderly person shall be deemed to

have been guilty of a petty offense and shall be

punished by imprisonment in the county workhouse,

penitentiary, or jail for not more than 6 months,

or by a fine of not more than $500.00, or both.

To limit the amount of fine applicable to an association,

the membership of which numbers approximately 1750 in

the Jersey City school system alone to a maximum of

$500.00 for criminal contempt, is to remove from the

courts of this State the power to impose summarily any-

thing but a meaningless and insignificant fine in punish-

ment for contempt where a large group of individuals

is involved.

The State submits that the case of Bloom v. Illinois,

391 U. S. 194 (1967) which is cited in the opinion of

the Appellate Division, is dispositive of the issue as to

the “serious” or “petty” classification of the offense of

criminal contempt, where there is an imposition of a

prison sentence. In the Bloom case, the defendant was

vonvicted in Illinois of criminal contempt and sentenced

to 24 months imprisonment for willfully petitioning to

anal petite Dale ea nh 8 Shes a aad eae ~ Teer ae PARE, OE II RSet DR Ep dbo Ko Dee aro

ee en

admit to probate a will falsely prepared and executed

after the testator’s death. The court held it was error

to deny his request for a jury trial, applying the rule

that where the legislature has not expressed judgment

as to the seriousness of an offense by fixing a maximum

penuity (as is the status of the offense of contempt in

New Jersey) the seriousness of the offense can be as-

certained by looking at the penalty actually imposed. Thus,

the Court, recognizing the sui generis nature of the of-

fense of criminal contempt and the need to maintain the

imposition of a penalty for a violation of the same in

the discretion of the trial judge, insisted that a defend-

ant receive the procedural protection of the right to trial

by jury where the terms of imprisonment exceeded 6

inonths. Subsequently, the Court affirmed tie summary

conviction of a defendant charged with criminal contempt

for violating an injunction where he was sentenced to a

6 month-cr-less term of imprisonment. Frank v. United

Stotes, 395 U. 8. 147 (1968). See also Cheff v. Schnacken-

berg, 384 U. S. 373 (1966); (Here the corporation was

fined $100,000); U. S. v. Harris, 367 F. 2d 826 (2nd Cir.

1966) ; In re Buehrer, supra.

The State further submits that the Appellate Division

correctly reasoned that the imposition of a fine in excess

of $500.00 against a union whose membership ranges in

the hundreds, did not render the offense of criminal

contempt a “serious” offense within the meaning of Bloom

v. Illinois, supra. As the Appellate Division pointed out,

the case of Rankin v. Shanker, supra, meets this issue head

on:

“(T]he fine, even though sizeable in amount fur-

nishes no valid criterion for the defendants’ claim

that the contempt charged against them constitutes

a serious crime.” (295 N. Y. S. 2d at 632-633).

a Ae ee RRR AER IRE BEND RPL AN IPS ONE POLL EE ORNL SE LENRS PN EE ONE NES ATEN TTT ET

18

The summay power of the courts to impose a fine is es-

pecially crucial in attempting to halt immediately the il-

legal activities of a union of public employees which are

inimical to the public welfare.

The language of the Supreme Court in United States v.

United Mine Workers:of America, supra, where it was

held that the union had no right to a trial by jury despite

a fine of $700,000, is still valid to define for the trial judge

a standard to use in his discretion in order to determine

the severity of the fine which should be imposed:

“In imposing a fine for criminal contempt, the trial

judge may properly take into consideration the ex-

tent of the willful and deliberate defiance of’ the

court’s order, the seriousness of the consequences

of the contumacious behavior, the necessity of effec-

tively terminating the defendant’s defiance as re-

quired 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.” Jd.

at 303.

“But where the purpose is to make the defendant

comply, the court’s discretion is otherwise exercised.

It must then consider the character and magnitude

of the harm threatened by continued contumacy,

and the probable effectiveness of any suggested

sanction in bringing about the result desired.

“Tt is a corollary of the above principles that a court

which has returned a conviction for contempt must,

in fixing the amount of a fine to be imposed as a

punishment or as a means of securing future com-

pliance, consider the amount of defendant’s finan-

Le A Ca aay et at te 8

19

cial resources and the consequent seriousness of the

burden to that particular defendant.” Id. at 304.

Petitioner’s argument that the exercise of such discre-

tion is violative of the Equal Protection and Due Process

clauses of the Fourteenth Amendment is without merit.

Clearly, the imposition of the fine is an action directly

related to the preservation of the State’s interest in the

educational system and the substantial size of such fine

is required in order to emphasize the gravity-ef the harm

to the public. See McGowan v. Maryland, 366 U. S. 420

(1961).

CONCLUSION

For the reasons set forth, the petition for certiorari

should be denied.

*»

Respectfully submitted,

GEOFFREY GAULKIN

Prosecutor of Hudson County

By: Norman L. Kuve

Assistant Proseeutor

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