Opposition Brief — Board of Education v. Lombard

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us. & In the

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SUPREME COURT OF [HE chivas

October Term, 197 4ticHacl ROUAK, JR., CLERK

NG 4-94]

THE BOARD OF EDUCATION OF [THE CITY

OF NEW YORK and JOHN A. MURPHY,

Petitioners,

-against-

JOHN F. LOMBARD,

Respondent.

BRIEF IN OPPOSITION [fO

PELITION FOR CERTORARI

MICHAEL 3. SiANDARD

Attorney for Respondent

30 East 42nd Street

New York, New York 10017

February 10, 1975

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

THE BOARD OF EDUCATION OF THE CITY

OF NEW YORK and JOHN A. MURPHY,

Petitioners,

-against-

JOHN F. LOMBARD,

Respondent.

Brief in Opposition to Petition for a

Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

The respondent, John F. Lombard,

opposes the prantinp, of a petition for

certiorari in this matter for the following

reasons:

1. fhe state court judgment entered

in a special proceeding in the nature of manda-

mus, did not and could not have, determined

the constitutional issues raised in the Federal

action.

2. The petitioners’ base their

argument that a conflict exists between the

2

appellate courts between the circuits

through a misinterpretation of the

Second Circuit's holding herein and the

principles set forth by the appellate

courts in other circuits upon facts which

are dissimilar to those at bar.

Firstly, the respondent's state

action in the nature of a mandamus sought

to annul and set aside an administrative

determination on the ground that it was

arbitrary, capricious and unreasonable.

The action was a so-called “Article 78"

proceeding pursuant to Sections 7801, et

seq. of the New York Civil Practice Law and

Rules. Section 7803 of the state statute

limits application of the article as follows:

"Section 7803

"The only question that may be raised

in proceeding, under this article are:

“Whether the body or officer failed to

perform a duty enjoined upon it by law; or

“Whether the body or officer proceeded,

is proceeding or is about to proceed without

or in excess of jurisdiction; or

“Whether a determination was made in

violation of lawful procedure, was affected

by an error of law or was arbitrary and

capricious or an abuse of discretion,

including abuse of discretion as to the

measure of mode of penalty or discipline

imposed; or

“Whether a determination was made as a

result of a heading held, and at which

evidence was taken, pursuant to direction

by law is, on the entire record, supported

by substantial evidence. As amended L.

1962, c. 318, Sec. 26."

The state court proceeding was not

a proper vehicle to test constitutionality.

Matter of Jerry v. Board of Education, 44

A.D. 2d 198 (4th Dept., 1974); Robbins v.

Police Pension Fund, 321 F. Supp. 93.

The authorities relied upon by

the petitioner do not apply to the case at

bar. The core of each of the cases cited by

the petitioner is that the state court judg-

ment was entered either after trial or upon

review of an administrative hearing which

comported with due process standards. Mr.

Lombard never received a hearing or trial,

at the administrative or state court level.

Although the peritioner makes frequent

reference (as does the Comment in 88 Harvard

Law Review 453 cited by petitioner) to the

hearing, accorded the respondent, as pointed out

by the Second (:rcuit at no time was any sworn

testimony taken and no witnesses appeared on

behalf of the petitioners here. (Opinion,

Appendix A at p. 7a, 15a.) In Lovely v.

Laliberte, 498 F. 2d 1261 (1st Cir., 1974)

the state cour: judgment had been entered

after trial; in Frazier v. East Baton Roupe

Parish School Beard, 363 F. 2d 861 (5th Cir.,

1966), the appellant had a full hearing prior

to dismissal and the School Board's action

was sustained by the state court after a

full hearing in state court. Howe _v. Brouse,

422 F. 2d 347 (8th Cir., 1970) was decided

on the issue of judicial immunity in the state

court, and the same issue was pivotal to the

Federal action. In Johnson v. Department of

Water & Power of the City of Los Angeles,

et al., 450 F. 2d 294 (9th Cir., 1971),

the appellant received a hearing and a

rehearing before the state civil service

commission. fhe court in Johnson specifically

held that the appellant had every opportunity

to present his side of the case in the state

courts. The respondent here was able only

to present the issue of arbitrariness of the

administrative determination in the state

court. In Francisco Enterprises v. Kirby,

482 F. 2d 481 (9th Cir., 1973), there was

a full hearing before an impartial hearing

officer at the administrative level.

5

The petitioners also misconstrue the

holding in Thistlewaite v. City of New York,

497 F. 2d 138 (2d Cir., 1974), cert den.

Docket #74-524, 43 U.S.L.S. 3355, December 24,

1974. In Thistlewaite, the appellant had

been convicted after trial at which all

constitutional questions presented to the

District Court were determined by the state

court. Further, the Thistlewaite case involved

collateral attack upon a state court criminal

conviction and is inapposite here.

Nor is Tang v. Appellate Division,

First Department, 487 F. 2d 138 (2d Dept.,

1973), cert. den. 416 U.S. 906 (1974)

supportive of the petitioners’ argument here.

In Tang it was conceded that the appellant

raised the same constitutional issues in his

State and federal actions. There was also the

additional element that of the state court's

administration of the state bar which appeared

to influence the federal court's decision not

to pass on the issues presented to it.

6

The petitioners‘ reliance upon

Angel _v. Bullington, 330 U.S. 183 (1946)

is misguided. [hat decision dealt with

the standing of parties in an action where

diversity of citizenship was the basis of

federal. ymisdinrrian.. This Com helcdh that

for purpose of diversity jurisdiction a

federal court is in effect only another court

of the state. This statement, of course, does

not apply to actions under the Civil Rights

Act which clearly supplementary to available

state jurisdiction. Nor does this Court's

holding, in Prieser v. Rodrigues, et al., 411

U.S. 475 (1973) constitute authority for

the petitioners’ argument here. The burden of

the Prieser holding was that where state

prisoners seek to challenge state “good time”

procedures, their remedy is by habeas corpus

and oonsequently they must exhaust state

remedies before invoking, federal jurisdiction.

Clearly, the state proceeding to

review an administrative determination on the

grounds that it is “arbitrary, capricious

and unreasonable” (NYCPLR, Sec. 7803) is not

the same cause of action as the respondent's

suit under the Civil Rights Act. The first

action goes to the weight of proof before the

administrative body and the second to the

very core of First and Fourteenth Amendment

rights.

[he petitioners’ statement that

if the decision here is allowed to stand

the result will be multiple court actions

cannot withstand logical application. It goes

without saying that multiple litigation is

more of a burden on the person in the res-

pondent'’s position than upon the petitioners.

No plaintiff seeks multiple suits with the

concomitant expenditure of time and money

that such necessarily entails. The fact

is that a firm federal holding as to the

respects in which the procedures of the

Board of Education here violated federal

due process requirements will necessitate

a change in that petitioner's procedures and

thus diminish both state and federal court

litigation because abuses such as those

set forth in the complaint herein are not

peculiar to the respondent's case and have

in fact resulted in the commencement of

litigation by others similarly affected.

The actions taken by the petitioners

here in revoking the respondent's probationa

ry

license and stigmatizing him as a mentally ill

person without a hearing, sworn testimony,

an opportunity for him to confront the witnesses

apainst him and an opportunity to cross examine

them, all_under color of state law, is manifestly

the very type of abuse that the federal statute

seeks to provide redress for,

The constitutional question was not

raised, briefed or decided in the state courts.

The New York statute precluded state court

jurisdiction over the constitutional issue and

the state court's judgment does not stand in

bar of the federal action.

On the facts, there is no conflict

on the issue here presented between the Circuit

Courts of Appeals. Each of the cases cited by

the petitioners as in conflict with the

decision at bar is clearly distinguishable

on its facts. The rule as set forth

in Kaufman v. Moss, 420 F. 2d 1270 (3rd Cir.),

cert. den. 400 U.S. 846, cited with favor

in Mastraccio v. Ricci, 498 F. 2d 1257

(lst Cir., 1974) is, “...reasonable doubt

as to what was decided by a prior judgment

should be desolved against using it as

9

CONCLUSION

THE PELITION FOR A WRIT OF

CERTIORARI TO REVIEW THE JUDGMENT

AND OPINION OF THE SECOND CIRCUIT

SHOULD BE DENIED.

Respectfully submitted,

MICHAEL B. SiANDARD

Attorney for Respondent

30 East 42nd Street

_ New York, New York 10017

Dated: February 10, 1975.