Opposition Brief — Board of Education of the City School District of New York v. Newman

In the

SUPREME COURT OF [fHE UNITED SLATES

October [erm, 1974

-

No. 74-971

fHE BOARD OF EDUCATION OF [HE CITY

SCHOOL DISfRICI OF NEW YORK,

Petitioner,

-against-

Ene ee

FRANCINE NEWMAN,

en eey

Respondent.

BRIEF IN OPPOSITION TO

PEFI LION FOR CERIIORARI

Se ee St ee ee

Conrad J. Lynn

Attorney for Respondent |

233 Broadway

New York, New York 10007 ;

March 4, 1975

1 than ean | the nhs

RE LE BREE ee

[able of Cases and Statutes

FEDERAL CASES

Angel v. Bullington,

330 U.S. 183 (1946)

Francisco Enterprises v.

Kirby, 482 F.2d 481

9th Cir., 1973)

Frazier v. East Baton Rouge

Parish School Board, 363 F. 2d

861 (5th Cir., 1966)

Grubb v. Public Utilities

Commission, 281 U.S. 4/70

(1930)

Howe v. Brouse, 422 F. 2d 347

(8th Cir., 1970)

Johnson v. Department of Water

& Power of the City of Loss

Anpeles, et al., 450 F. 2d 294

(9th Cir., 1971)

Kaufman_v. Moss, 420 F. 2d 1270

(3rd Cir.), cert. den. 400 U.S.

846 (1970)

Lovely v. Laliberte, 498 F. 2d

1261 (lst Cir., 1974)

Mastraccio v. Ricci, 498 F. 2d

1257 (Lst Cir., 1974)

Prieser v. Rodrigues, et al.,

411 U.S. 475 (19

PAGE

7

15

18

|

Table of Cases and Statutes (continued)

Robbins v. Police Pension Fund,

321 F. Supp. 93

Tang v. Appellate Division, First

Department, 487 F. 2d 138 (2nd

Dept., 1973), cert. den. 416 U.S.

906 (1974)

[histlewaite v. City of New York,

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

cert. den. Docket 74-524, 43

U.S.L.W. 3355, December 24, 1974

NEW YORK CASES

Gold v. Lomenzo, 29 N.Y. 2d 468,

280 N.E. 2d 640 (1972)

Mtr. of Jerry v. Board of

Education, 44 A.D. 2d 198

(4th Dept., 1974)

Kovarsky v. Housing & Develop-

ment Administration, 31 N.Y. 2d

184, 286 N.E. 2d 882 (1972)

Mtr. of Lakeland Water District

v. Onondaga County Water

Authority, 24 N.Y. 2d GOO (1969)

Mtr. of Overhill Bldg. Co. vy.

Delany, 28 N.Y. 2d 449 (1971)

Mtr. of Phelan v. Theatrical

Protective Union, 22 N.Y. 2d 34,

238 N.E. 2d 299 (1968)

Roosevelt Raceway vy, County of

Nassau, 18 N.Y. 2d 3U, ZI8 N.E.2d

539 (1966)

ii

PAGE

4

6,7

10,11,15

11,15

re a

Table of Cases and Statutes (continued)

NEW _ YORK S:AIruLrEs

New York Civil Practice

Law and Rules, Section

103 (c)

New York Civil Practice

Law and Rules, Section

3017, subdivision (a)

New York Civil Practice Law

and Rules, Section 7803

iii

PAGE

9, 10, 11

12

3,4,11,14

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EAST OSTUMEY

SO Lie BONER NA IL LPP ANE LORE LE

eri aa sens

In the

_ SUPREME COURT OF fHE UNITED SLATES

October [erm, 1974

No. 74-971

THE BOARD OF EDUCAFION OF THE CI7y

SCHOOL DISTRICL OF NEW YORK,

Petitioner,

-against -

FRANCINE NEWMAN,

Respondent.

BRIEF IN OPPOSITION [fo PETI £ION

FOR A WRIT OF CERTIORARI [0 [HE

UNITED SFAfES COURS OF APPEALS

FOR _SFHE SECOND CIRCUI¢

fhe respondent, Francine Newman,

Opposes the granting of a petition for

sb ta me tat

certiorari in this matter for the following

reasons:

1. [he state court judgment

entered in a special proceeding in the nature

of mandamus did not, and could not have,

determined the Constitutional issues raised

in the Federal action.

. en scencmesen we arenas maeerage

2. fhe constitutional claims

were not pleaded, briefed, argued or

decided in the state court action.

Reasons for Denying the Writ

fhe petitioner here relies upon

the argument and authorities set forth in its

petition for certiorari in The Board of

Education of the City of New York and John A.

*

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3

E

,

:

Murphy _v. John F. Lombard, October Term, 1974,

RST

No. 74-941, docketed on «<r about January 30,

bo apeh e)

1975 and now pending in this Court, with

respect to the first question presented and

additionally claims at bar that the respondent

Newman pleaded her constitutional claims in

the state courts.

FEE Tn REA Re as

fhe respondent Newman will here

set forth again Substantially the first branch

of the argument submitted in the Lombard

brief. Counsel for the respondent in both

petitions is the same.

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BLE REM LITO! OLE LIE DBO RGR VRAIS $0.

I Aly Ee wr NP GABA Coen ,

fhe petitioner bases its

argument that a conflict exists between the

Courts of Appeals between the circuits throu,

a misinterpretation of the Second Circuit's

holding in the Lombard case 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 deter-

mination on the &round that it was arbitrary,

capricious and unreasonable. The procecding

Was a so-called Article 78 action pursuant to

Sections 7801 et Seq. of the New York Civil

Practice Law and Rules. Section 7803 of the

4s follows:

"Section 7803.

"fhe only questionsthat may be

raised in proceedings under this article |

are; i

Article limits the application of the statute |

— ss etek seep — SNE LD 8 IRR IE PSY Tih TEATS MII RRE «9 od

SEA aie ue ee A ~ wt.

"1. whether the body or officer

failed to perform a duty enjoined upon

it by law; or

"2. whether the body or officer

proceeded, is proceeding or is about to

proceed without or in excess of juris-

diction; or

"3. 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 or mode of penalty or

discipline imposed; or

"4. whether a determination made

as a result of a hearding 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."

fhe 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 cited by the

petitioner do not apply at bar. The core

of each of the cases cited is that the state

court judgment was entered either after trial

or upon review of an administrative hearing which

Ccomported with due process standards. Ms.

Newman never received a hearing or trial at

1 a pa

POMOC LR

LDPE ALLO OL St

COTE ir

the administrative or state court level.

A1ithough the petitioner makes frequent reference

(as does the Comment in 88 Harvard Law Review

453 cited by the petitioner) to the "hearing”

accorded the respondent » at no time was

any proceeding even vaguely approaching

a hearing held.

In Lovely _v: Laliberte: 498 F. 2d

1261 (1st Cir-» 1974) the state court judgment

had been entered after trial; in Frazier Vv:

——oo

East Baton Rouge Parish School Board, 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 2 full hearing in that court.

Howe _v. Brouse,» 422 F. 2d 347 (8th Cir-,

1970) was decided on the issue of judicial

immunity in the stace court, and the same

issue vas pivotal to the Federal action. in

Johnson V+ Department _of Water & Power of

the City of Los Angeles, et ale, 450 F. 2d 294

(9th Cir., 1971), the appellant received 4

hearing and 2 rehearing before the state

a CR lee ee

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. /his opportunity

was not afforded the respondent at bar.

In Francisco Fnterprises v. Kirby, 482 F. 2d

481 (9th Cir., 1973), there was a full hearing,

before an impartial hearing officer at the

administrative level.

fhe petitioner also misconstrues

the holding in [histlewaite v. City of New

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

den. Docket #74-524, 43 U.S.L.W. 3355,

December 24, 1974. In fhistlewaite, the

appellant had been convicted after trial at

which all constitutional questions presented

to the District Court were determined by the

state court. Further, Thistlewaite involved

collateral attack upon a state criminal

conviction and is inapposite here.

Nor is Tang v. Appellate Division,

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

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

supportive of the petitioner's argument

at bar. In fang it was conceded that the

appellant raised the same constitutional

issues in his state and Federal aciions.

[here was also the additional element 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.

[he petitioner's reliance upon

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

is misguided. That decision dealt with the

Standing of parties in an action where

diversity of citizenship was the basis

of Federal jurisdiction. [his Court held

that for purposes of diversity jurisdiction

a Federal court is in effect only another

court of the state. [his statement, of

course, does not apply to actions commenced

under the Civil Rights Act which is clearly

supplementary to available state remedies.

" — RP RNASE

STAN ESPN ARN CE CTY Se ee ee i |

ee

Se ee

Banerenerrrere enn

Nor does this Court's holding

in Prieser v. Rodrigues, et al., 411 U.S.

475 (1973) provide authority for the

petitioner's argument here. The burden of

the Prieser holding was that where state

prisoners seek to challenge state “good time"

procedures, their remedy is by hadeas corpus

and consequently they must exhaust state

remedies before invoking Federal Jurisdiction.

Clearly, the state proceeding

pursuant to NYCPLR Article 78 is not the same

cause of action as the respondent's suit

under the Civil Rights Act. [he first action

goes to the weight of proof before the

administrative agency and the second to the

very core of First and Fourteenth Amendment

rights.

In the Petitioner's Reply to

Brief in Opposition to Petition for Certiorari

in the Lombard case, submitted purportedly

in response to the “new issue" raised in the

= = a _—

henmiiiionn *% Brief in Opposition to the

Petition for Certiorari, the petitioner

misreads the New York law with respect to

the determination of constitutional issues

in an Article 78 proceeding.

A clear understanding of the

cases requires reference to NYCPLR, Section

103 (c) which provides:

"Section 103. Form of civil

judicial proceedings.

za

"(c) Improper form. If a court

has obtained jurisdiction over the

parties, a civil judicial proceeding

shall not be dismissed solely because

it is not brought in the proper form,

but the court shall make whatever order

is required for its proper prosecution.”

In the cases cited by the petitioner

the constitutional issues had been pleaded,

briefed and submitted to the court in an

Article 78 proceeding and the New York

Courts held, in the spirit of the liberal

interpretation mandated by NYCPLR, Section

LE

10

103 (c), that rather than dismissing ihe

proceedings they would treat them as actions

for a declaratory judgment. [fhe courts in

their discretion elected to treat the

proceedings as actions for declaratory

judgment. The option was in no way available

to the parties as the petitioner here would

have this Court infer.

fhe cases cited by the petitioner

are in no way applicable to the respondents

Lombard or Newman because these respondents

pleaded, briefed, argued and submitted

only the issues cognizable in Article 78

proceedings.

fhe petitioner in its Reply

Brief in Lombard cites Matter of Gold v.

Lomenzo, 29 N.Y. 2d 468, 476, footnote 4,

280 N.E. 2d 640, 644, footnote 4 (1972).

fhe footnote states in its entirety:

PR BP OP — OSE LIDILGALLE A LIOR LN SAL EOTCIE PO ea Pn SAE RIERA AIO 2 CSE OP BADEN

11

"Although article 78 proceedings

are inappropriate vehicles to test the

constitutionality of lepislative enact-

ments and it has been said that the

proper remedy is an action for a declara-

tory judgment, the issue is cognizable

in the instant proceeding since all

necessary parties are before the court

and the article 78 proceeding may be

treated as an action for a declaratory

judgment (CPLR 103, subd (c); cf. Matter

of Lakeland Water Dist. v. Onondaga

County Water Auth., 24 N.Y. 2d 400, 407;

Matter of Overhill Bldg. Co. v. Delany,

28 N.Y. 2d 449, 458,)" (Emphasis supplied. )

In the Gold case, the pleadings

r6ised and the trial court determined the

constitutional issue.

In the Lakeland Water Distric-

case the issue was not the constitutionality

of the statute but rather the jurisdiction

of the court to review the rate-making

authority cf the respondent. And in Matter

of Overhill Bldg. Co. v. Delany, supra, the

New York Court of Appeals held at p. 458 of 28

N.Y. 2d:

"Thus, Article 78 proceedings continue

to be inappropriate vehicles to test

the constitutionality of legislative

a typed Ww) = AE Ow OOP LOLOL EEO A Os FE OO Kig* RPS BO Sd

enactments, and the respondent's

remedy is an action for declaratory

judgment."

*k&

“Accordingly, the order appealed

from should be reversed, with costs

and the petition dismissed, without

prejudice to any action for a declara-

tory judgment which respondent, if so

advised, may wish to institute."

Matter of Phelan v. fheatrical

Protective Union, 22 N.Y. 2d 34, 41, 238

N.E. 2d 299 (1968), cited by petitioner

at page 2 of its Reply Brief in Lombard

is authority for the proposition:

"Similarly, CPLR 3017 (subd.(a))

prvides, in part, that a court ‘may

grant any type of relief within its

jurisdiction appropriate to the proof

whether or not demanded.” (Emphasis

supplied. )

There is no allegation by the

petitioners, either in Lombard or at bar,

that any proof was offered on the constitutional

issue in the state courts.

fhus the petitioner seeks to avoid

Confronting the constitutional issue in the

Federal Court through a series of strained

=

13

propositions, none of which fit the facts

at bar. It may well be that if the New York

Courts had proof on the constitutional issue

before them they could have, sua sponte,

dealt with that issue by treating the Article

78 proceedings as actions for a declaratory

judgment. But there was no such proof and

the New York Courts did not elect to treat

the respondent's state proceeding as anything

other than what it was - a challenge to the

administrative conclusion, not a challenge to

the procedures through which the conclusion

was reached. The latter challenge raises

the due process issue which is properly before

the Federal Court.

In Roosevelt Raceway v. County of

Nassau, 18 N.Y. 2d 30, 41, 218 N.E. 2d 539,

544 (1966), also cited at page 2 of the

petitioners’ brief in Lombard and thus

incorporated by reference in its brief in

Support of certiorari here, the “constitutiona-

lity” which the court held could be tested in

14

an Article 78 proceeding, was that aspect of

construction under CPLR 7803, to which the

court specifically refers, which relates to

the issue of whether the power to enact certain

legislation was in excess of the respondent's

jurisdiction under the New York State

Constitution and the New York “Home Rule”

Law. Ihe case has no bearing on the issues

at bar.

fhe petitioner argues that the

respondent Newman did in fact submit the

‘

constitutional issue to the New York Courts

by the single inclusion of the words “due

process” in her twelve-page petition.

Ihe Second Circuit held, however:

"It is clear from the record that

appellant never raised her federal

constitutional claims in the state court.

There is no mention of any claim of

procedureal due process in the New York

Supreme Court's opinion; indeed, it

specifically went off on other

considerations." (Appendix, p. A-21)

The single passing reference to

“due process” is in sharp contrast to the

| ie ee a ek ae a. re ee ee. Cr et oo Sonne tos

15

facts in Grubb v. Public Utilities Commi ssion,

(cited by petitioner as Greyp v. Public

Utilities Commission), 281 U.S. 470 (1930),

where this Court noted:

"fhe question of the constitutiona-

lity validity of the order was

distinctly presented by the appellant's

pecition and necessarily was resolved

apainst him by the judpmer.t affirmin

the order," Cischacts supplied. )

In Kovarsky v. Housing & Developrent

Administration, 31 N.Y. 2d 184, 192, 286 N.E.

2d 882, 886 (1972), also cited by the petitioner

at page 2 of its Reply Brief in Lombard, the

thrust of the action was to challenge the

constitutionality of a legislative enactment.

At pp. 191-192 the New York Court of Appeals

again holds than an Article 78 proceeding is

not the “proper vehicle to test legislative

enactments", citing Matter of Sold v. Lomenzo,

Matter of Overhill Bldg. Co. y. Delany and

Matter of Lakeland Water District v. Onondaga

County Water Authority, all cited 4s pointed

out supra, by the petitioner here as authority

Oh PE OM A BEDALE OLS ON LL LODE 1 AL ORO EGA UIE A Fe OTe te Loma

16

for the negative of the principle actually

enunciated by the New York Court of Appeals.

fhe Kovarsky Court specifically

pointed out that the issue of constitutionality

had been briefed by all parties before the

court.

Finally, the petitioner raises

the spectre of multiple litigation should the

Court of Appeals’ decision stand. fhe fact

is that multiple litigation is a far greater

burden on individuals in the respondent's

position than upon the petitioners. No

plaintiff seeks multiple suits with the

concomitant expenditure of time and money that

such necessarily entail.

New York needs a firm Federal court

holding as to the respects in which the

procedures of the Board of Education violate

Federal due process requirements. Such

holding will mandate a change in the

petitioner's procedures and thus diminish

2a gpa nneomee a

17

both state and Federal litigation because

abuses such as those exposed in the Lombard

and Newman cases are not peculiar to their

cases and have in fact resulted in the

commencement of litigation by others

Anmilaiy aiteveal aswell’ as the mute

suffering of the loss of income, professional

standing and good name by many ethers with

niether the money nor sophistication to

pursue their rights.

[he petitioner's practice of

wvoking licenses, stigmatizing teachers

as mentally ill, forcing them to go on

411 without a hearing, sworn testimony, an

opportunity for the teacher to confront the

lay or medical witnesses against them and

an opportunity to cross examine them,

all_under color of state law, is manifestly

the very type of abuse thet the Civil Rights

Act was enacted to correct.

involuntary medical leave without pay -

aah

18

[here is no conflict on the issues

here presented between the Circuit Courts of

Appeals. Each of the cases cited by the

petitioner 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

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

as to what was decided by a prior judgment

should be resolved against using it as

estoppel.”

CONCLUSION

[HE PEfITION FOR A WRIT OF CERIIORARI

TO REVIEW fHE JUDGMENT AND OPINION OF

[THE SECOND CIRCUIL COURT OF APPEALS

SHOULD BE DENIED.

Respectfully submitted,

CONRAD J. LYNN

Attorney for Respondent

233 Broadway

New York, New York 10007

Dated: March 4, 1975.

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