Reply Brief — Hostrop v. Board of Junior College District No. 515

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TABLE OF CONTENTS

PAGE

OPINIONS BELOW .......000w.... 2

QUESTIONS PRESENTED : 2

APPLICABLE CONSTITUTIONAL PROVISIONS

ARD STATUTES... 2

STATEMENT OF THE CASE ..... 3

ARGUMENT:

I.

The Board Of Trustees Had Become Incompe-

tent To Grant Plaintiff A Hearing To Which He

Was Constitutionally Required 7

II.

The Board Of District Colleges Is Entitled To

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CAC 12

LIST OF AUTHORITIES CITED

Molitor v. Kaneland Unit School District, 18 Tl. 2d 11,

163 N.E. 2d 89 (1959) - 11

Withrow v. Larkin, 421 U.S. 35 (1975) 7, 8,9

Illinois Constitution of 1970, Article istics 3

Chapter 122 Ill. Rev. Stat., §103-11 3

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Supreme Court of the United States

Octoser Term, 1975

No. 75-1035

BOARD OF JUNIOR COLLEGE DISTRICT NO. 515, COUN-

TIES OF COOK AND WILL AND STATE OF ILLINOIS,

a body politic and corporate, and JAMES GRIFFITH, AN-

THONY HANNAGAN, DORIS HILL, WILLIAM JACKSON,

Petitioners,

vs.

RICHARD W. HOSTROP,

Respondent.

RESPONSE TO PETITION FOR WRIT

OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To the Justices of the Supreme Court of the United States:

The Respondent, Richard W. Hostrop, respectfully prays

that the Petition for Writ of Certiorari filed herein be

denied.

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The Opinion of the United States Court of Appeals for

the Seventh Circuit is reported officially at 523 F.2d 569

(1975), and is reproduced as Appendix “A” to Petitioners’

Petition. The opinion of the District Court is reported of-

ficially at 399 F. Supp. 609 (1974).

QUESTIONS PRESENTED

Petitioners have briefed two questions in their Petition

for Writ of Certiorari:

1. Whether the members of a Community College Board

of Trustees may act as witnesses, investigators, judge and

jury?

2. Whether a public body is immune from liability for

discharging an employee without due process?

APPLICABLE CONSTITUTIONAL

PROVISIONS AND STATUTES

In addition to the Constitutional Provisions and Stat-

utes set forth in Petitioners’ Petition, the following are

pertinent.

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The Illinois Constitution of 1970, Article VIII, §4 states:

“Exeept as the General Assembly may provide by

law, sovereign immunity in this State is abolished.”

Chapter 122 Ill. Rev. Stats., §108-11 states:

“The board of each community college district is a

body politie and corporate by the name of ‘Board of

Trustees of Community College District No. :

County (or Counties) of —.... and State of Illi-

nois’ and by that name may sue and be sued in all

courts and places where judicial proceedings are had.

The State Board shall issue a number to each com-

munity college district, which number shall be incor-

porated in the name of the board of that district.”

STATEMENT OF THE CASE

Plaintiff commenced his employment as the President of

Prairie State College in 1967. He was employed under a

series of written employment agreements. On April 2, 1970,

the Board of Trustees of the College unanimously voted to

extend his then-existing contract, as a result of which he

was entitled to employment as President of the College

through June 30, 1972.

On June 20, 1970, an informal gathering of the members

of the Board and Plaintiff was held at the home of the

Board Chairman, Lester Kloss. At this meeting, denomi-

nated a “workshop,” various of the Board members voiced

certain concerns about the way in which Prairie State Col-

lege was being administered. No minutes were taken at this

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gathering. As the workshop wore on into the late hours,

Plaintiff was given no opportunity to respond to the vari-

ous matters mentioned by the Board members. Significant-

ly, nothing was said at this meeting which indicated that

there was any intention or desire on the part of anyone

to terminate Plaintiff’s employment.

Plaintiff did evidence a desire to respond to the various

matters which had been brought up by the Board members,

and a date was set for the continuation of the discussion.

This meeting, although re-set from time to time, was never

held. The Board members themselves, however, met on sev-

eral occasions subsequent to that meeting, but Plaintiff was

never invited to attend any of those gatherings. Also, sev-

eral regularly scheduled Board meetings were held, but

the matters which had been discussed on June 20, were

not placed on the agenda or discussed at any of these meet-

ings.

During the period between June 20, 1970, and July 23,

1970, the Board Members decided that Plaintiff must either

resign or be terminated, although they never informed

Plaintiff that such action was being contemplated. The

first that Plaintiff was aware that the Board intended

to terminate his employment was on July 13, 1970, at 4:30

p.m., when he was suddenly called to meet with the Chair-

man of the Board and a special attorney who had been

hired on that very same date. When he arrived, Plaintiff

was informed that he had two choices: either resign or be

terminated. He was also told that the Board desired that

his employment problem be determined by July 24, 1970.

Plaintiff, at this meeting, requested that he be given written

charges and a notice of the reasons for the Board’s action.

This request was denied.

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At no time prior to Plaintiff's termination, were any

written charges, concerns, or reasons for Plaintiff’s ter-

mination of employment prepared.

A special meeting of the Board was set for July 23, 1970,

at which time the Board had decided to take action and

carry out the decision to either force Plaintiff to resign or

to be terminated. On July 22, 1970, a delegation of three

Board members met with another administrator, one Ash-

ley Johnson, and offered him the job of President of Prairie

State College. Mr. Johnson accepted at that time, although

the appointment was not formally confirmed until July 27.

Plaintiff was informed of the July 23 meeting two days

prior to it, when he was informed by his attorney. The

public notice for the meeting stated merely that the Board

was meeting for the purpose of discussing certain “person-

nel matters,” and made no reference to any intention to

consider Plaintiff's termination. Not having received any

written charges or reasons for dismissal prior to this meet-

ing, Plaintiff refused to attend. At the meeting, the Board

went on record as being unanimously in favor of termi-

nating Plaintiff's employment. Two of the Board members

who were not present were contacted by telephone, and

in this manner, voted to terminate Plaintiff's employment.

On August 21, 1970, Plaintiff first received a written list

of reasons for his termination, this list having been taped

to his front door. After receiving this list, Plaintiff made

a formal demand for a hearing, through his attorney. The

Board, through its attorney, replied that no hearing would

be given, as he was not entitled to a hearing of any kind.

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Based upon this record, the Court of Appeals for the

Seventh Circuit found as follows:

“Our review of the evidence leaves us with the defi-

nite and firm conviction that plaintiff was never of-

fered a fair hearing on termination, and that, in fact,

the board prejudged his case before making any hear-

ing available to him. There can be no real dispute that

before the special session of the board on July 23,

1970, when plaintiff was to be afforded a hearing, the

board had already decided to terminate him, and had

in fact made a commitment to another person to hire

that person as interim president. The board having

prejudged the matter of plaintiff’s termination before

the July 23 meeting, and being no longer therefore

‘a tribunal possessing apparent impartiality,’ as re-

quired by Hostrop I, 471 F.2d at 495, plaintiff did not

waive his right to a hearing by absenting himself from

that meeting.”

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THE BOARD OF TRUSTEES HAD BECOME INCOMPE-

TENT TO GRANT PLAINTIFF A HEARING TO WHICH HE

WAS CONSTITUTIONALLY REQUIRED.

The decision by the Court of Appeals for the Seventh

Circuit in this case, holding that Plaintiff had been de-

prived of that hearing to which he was entitled under the

Due Process Clause, was not a departure from the rulings

of this Court. Rather, it followed the requirements of due

process as set down by this Court on many occasions. De-

fendants attempt to rely upon this Court’s decision in With-

row v. Larkin, 421 U.S. 35 (1975), in arguing that it is not

a violation of due process for one body or administrative

agency to both investigate and decide factual issues. Plain-

tiff does not, and has not challenged this proposition. Nor

did the Court of Appeals, either in its first or second deci-

sion ‘n this case, deviate from the long-settled principles

set down by this Court. In fact, this Court’s decision in

Withrow enforces the decision of the Court of Appeals in

this case that Plaintiff was denied his rights to due process.

Boiled down to its bare bones, Defendants’ argument is

that at some time during a proceeding, any fact-finder, be

he judge, jury or administrative agency, will begin to form

an opinion as to the final judgment which will be made in

the case, and that such a procedure is not constitutionally

prohibited. No fault could be found with such a proposi-

tion. What defendants ignore, and what was the core of

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the holding by the Court of Appeals, is the proposition

that here, those who made the decision to discharge Plain-

tiff, were the very same persons who had instituted the

charges, had personal knowledge of the charges, would

promulgate the charges against Plaintiff, institute the pro-

ceeding against Plaintiff, and implement that decision. In

fact, the decision to terminate had been both made and

implemented before the “hearing” was to be held, and be-

fore Plaintiff had been informed of any of the reasons for

the contemplated action. Plaintiff had been told straight

out that he had only two choices: 1) resign or 2) be termi-

nated. There was to be no hearing, only action. Indeed,

when Plaintiff demanded a hearing after receiving the rea-

sons for his termination, he was informed by the Board

that he was entitled to no hearing. It is obvious that the

meeting of July 23, 1970, was merely for the purpose of

formally ratifying a decision which had been firmly made.

Thus, the decision of the Court of Appeals in finding a

violation of Plaintiff's due process rights was no deviation

from the consistent rulings of this Court. Indeed, refer-

ence need be made no further than this Court’s decision in

Withrow to affirm tiat view:

“Conecededly, a ‘fair trial in a fair tribunal is a

basie requirement of due process.’ In re Mirchison,

349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942

(1955). This applies to administrative agencies which

adjudicate as well as to courts. Gibson v. Berryhill,

411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed. 2d

488 (1973). Not only is a biased decisionmaker un-

acceptable but ‘our system of law has always en-

deavored to prevent even the probability of unfair-

ness.’ Murchison, supra.” 95 S.Ct. at 1464.

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As stated in Withrow, the vice prohibited in the kind of 4

proceeding faced in Murchison was the fact that in there }

deciding whether the persons before him were guilty of

contempt or not “he very likely relied on ‘his own personal

knowledge and impression of what had occurred in the

grand jury room’, an impression that ‘could not be tested

by adequate cross-examination.’” 95 S.Ct. at 1467. So too

here, the Board members themselves were the accusers, not

based upon any investigation which they had undertaken,

but upon the impressions which they had formed in their

own minds as a result of their working relationship with

Plaintiff. They were not persons who came to the contro-

versy neutral and began to form impressions after making

an investigation, but the ones who had caused the investiga-

tion to begin, based upon their own personal knowledge and '

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72 SAS Rag NERY

Indeed, Defendants have admitted this fact in their Peti-

tion herein, albeit unwittingly, when they state: “The con-

tinuing development and presentation of ‘evidence’ to peti-

tioners resulted not from an ez parte investigation, but from

first hand observation in the conduct of a close working

professional relationship with the Plaintiff.”

Whatever else Due Process may mean in varying con-

texts, it means that the prosecuting witness cannot also be

the judge. That is the proposition for which the decision

of the Court of Appeals stands, and nothing more. Such

a decision presents no new or novel issue to this Court.

That decision does not form the basis for a grant of Cer-

tiorari by this Court.

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THE BOARD OF DISTRICT COLLEGES IS ENTITLED TO

NO IMMUNITY.

Defendants next argue that somehow the Board of Col-

leges, as an entity, is entitled to some kind of immunity

from responsibility for having violated Plaintiff’s rights.

That proposition simply has no merit whatsoever,

This argument is based upon the proposition that to im-

pose liability against the Board is to penalize it for the

implementation of its policies. That, however, is not the

case at all. The liability imposed here is for the violation

of plaintiff’s rights to due process—notice and a hearing

before depriving him of property rights. Defendants some-

how argue that the Board is entitled to immunity because

the legislature failed to “provide for a delegation of Board

responsibilities at a time when it should recuse itself.”

(Petition for Certiorari, p. 12) Such a contention has ab-

solutely no foundation whatsoever. It was the Board which

placed itself in the situation where it was unable to act

properly. It was solely within the province of the Board

to prevent itself from being placed in such a position. All

it had to do was to grant Plaintiff the procedures to which

he was constitutionally entitled. The Board was not some-

how thrust into a situation where it had prejudged the issue.

The fault was in acting improperly, not in the legislature

having failed to foresee a way for the Board to extricate

itself from a predicament of its own making.

Indeed, under Illinois law, it is clear that the Board is

entitled to no immunity. The Illinois Constitution of 1970

clearly abolishes sovereign immunity.

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The Illinois Supreme Court long ago abolished the doc-

trine of sovereign immunity insofar as it applies to local

public entities such as school boards. In Molitor v. Kane-

land Unit School District, 18 Tl. 2d 11, 163 N.E. 2d 89 (1959),

the Illinois Supreme Court found that “the whole doctrine

of governmental immunity from liability for tort rests upon

a rotten foundation.” Jd. at 21. The Court concluded “that

the rule of school district tort immunity is unjust, unsup-

ported by any valid reason, and has no rightful place in

modern day society.” Id. at 25.

That is the background upon which the Board’s liability

must be judged. The argument presented by defendants

is that the only way the Board could have complied with

constitutional requisites was by not terminating Plaintiff.

Such an argument is ingenuous. Although the Board itself

must take action regarding Plaintiff’s employment, pur-

suant to Illinois law, there is nothing which would have

prohibited them from refraining from making any decision

without giving Plaintiff a hearing. Further, there would

have been nothing wrong with the Board having hired a

hearing officer, or panel of arbitrators, or the like, to hear

evidence and make recommendations upon which they might

ultimately act.

The Board had several alternatives readily available to

it to protect Plaintiff’s rights. That they chose not to do so

was not a policy decision, or the implementation of any leg-

islative policy. Their actions were simply tortious. They

did not offer Plaintiff the hearing to which he was entitled.

Their failure to do so was not a discretionary act, nor

a matter of policy. There is no issue presented here worthy

of discussion.

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CONCLUSION .

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None of the points raised by Petitioners herein are unique

or worthy of consideration by this Court. The Petition for

Certiorari should be denied.

Respectfully submitted,

WAYNE B. GIAMPIETRO

134 N. LaSalle Street

Chicago, Illinois 60602

JAMES PAPPAS

1492 Aberdeen Street

Chicago Heights, Illinois 60411

Attorneys for Respondent