Wolkenstein v. Reville

• Decision Date: 18 November 1982
• Docket Number: D,No. 51,51
• Citation: 694 F.2d 35
• Parties: 111 L.R.R.M. (BNA) 3149, 7 Ed. Law Rep. 802 Gloria WOLKENSTEIN, Kathryn Silkes, Philip Rumore and Vincent Nola, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Eugene T. REVILLE, individually and as Superintendent of Schools; Claude D. Clapp, individually and as Chief Fiscal Officer of the City of Buffalo Public School System; Florence E. Baugh; David Kelly; Joseph E. Murphy; Louis C. Benton; Joseph D. Hillery; Mozella Richardson; Dennis Bulera; Oscar Smuckler; John C. Fiorella; as members of the Board of Education of the City School District of the City of Buffalo, Defendants-Appellees. ocket 82-7173.
• Court: U.S. Court of Appeals — Second Circuit

Page 35

694 F.2d 35

111 L.R.R.M. (BNA) 3149, 7 Ed. Law Rep. 802

Gloria WOLKENSTEIN, Kathryn Silkes, Philip Rumore and Vincent Nola, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Eugene T. REVILLE, individually and as Superintendent of Schools; Claude D. Clapp, individually and as Chief Fiscal Officer of the City of Buffalo Public School System Florence E. Baugh; David Kelly; Joseph E. Murphy; Louis C. Benton; Joseph D. Hillery; Mozella Richardson; Dennis Bulera; Oscar Smuckler; John C. Fiorella; as members of the Board of Education of the City School District of the City of Buffalo, Defendants-Appellees.

No. 51, Docket 82-7173.

United States Court of Appeals Second Circuit.

Argued Sept. 16, 1982.

Decided Nov. 18, 1982.

Bruce Fenwick, Buffalo, N.Y. (Robert D. Clearfield, Gen. Counsel, New York Educators Ass'n, Buffalo, N.Y.), for plaintiffs-appellants.

William E. Carey, Asst. Corp. Counsel, Buffalo, N.Y. (Joseph P. McNamara, Corp. Counsel of the City of Buffalo, Buffalo, N.Y.), for defendants-appellees.

Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y. (Jeremiah Jochnowitz, Asst. Sol. Gen., and John Q. Driscoll, Asst. Atty. Gen., Albany, N.Y., of counsel), for the Atty. Gen. of the State of N.Y., amicus curiae.

Before FEINBERG, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

FRIENDLY, Circuit Judge:

This is the latest in a long series of challenges in the state and federal courts over the last decade to the constitutionality of Sec. 210 of New York's Civil Service Law (the Taylor Law), which prohibits strikes by public employees. See Cheeseman v. Carey, 623 F.2d 1387, 1389-90 & note 3 (2 Cir.1980). The action, brought under 42 U.S.C. Sec. 1983 and its jurisdictional counterpart, 28 U.S.C. Sec. 1343(3), in the District Court for the Western District of New York, contests the procedures prescribed by Sec. 210.2 for determining whether a public employee participated in a strike in violation of Sec. 210.1 and for imposing a penalty on those determined to have so participated. The district court granted the named plaintiffs permission to represent a class consisting of "all persons who were penalized by defendants acting pursuant to CSL Sec. 210 owing to their involvement in the teachers' strike that occurred in Buffalo between September 7th and 24th, 1976". Defendants are Eugene T. Reville, individually and as superintendent of Buffalo's schools; Claude D. Clapp, individually and as chief fiscal officer of the Buffalo public school system; and the members of the Board of Education of the City School District of Buffalo. Both sides moved for summary judgment. In somewhat of a dubitante opinion, Judge Elfvin granted the defendants' motion, 539 F.Supp. 87 (1982). This appeal followed.

The procedures for determining violations of the Taylor Law and imposing penalties therefor are prescribed by Sec. 210.2, the relevant paragraphs of which we have set out in full in the margin. ¹ The "chief executive officer" of the governmental unit involved is empowered to determine, "on the basis of such investigation and affidavits as he may deem appropriate", whether an illegal strike has occurred and which employees have participated. Sec. 210.2(d). In making the latter determination he may employ the presumption, established by Sec. 210.2(b), that an "employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his duties in his normal manner without permission", has participated in the strike. An employee who has been notified that the chief executive officer has found him to have participated in an illegal strike may object to this initial determination by filing a "sworn affidavit, supported by available documentary proof, containing a short and plain statement of the facts upon which he relies ...." Sec. 210.2(h). The chief executive officer evaluates the objections and is obliged to refer those raising material questions of fact to a hearing officer. Id. Between 30 and 90 days after the chief executive officer's initial determination, the "chief fiscal officer" begins payroll deductions of amounts equal to twice the daily rate of pay for each day on strike. These deductions are not stayed until the employee's objection has been sustained, at which time all deductions previously made are refunded. Secs. 210.2(g), (h). The determinations made under Sec. 210.2(h), including the chief executive officer's determination whether an objection raises a material question of fact, are judicially reviewable pursuant to Article 78 of the New York CPLR.

The stipulation upon which summary judgment was entered below was, in relevant part, as follows. On September 7, 1976, approximately 3000 of the 3300 school teachers employed by the Buffalo School District commenced a strike which continued through September 24, 1976. By notice dated October 14, 1976, Superintendent of Schools Reville, the district's "chief executive officer", see Sec. 201.10, informed these 3000 teachers that he had found them to have participated in an illegal strike. Approximately 400 teachers, including the four named plaintiffs, ² filed objections. Some 325 of these, again including the named plaintiffs, received notices, signed by Reville, dismissing their objections and denying a hearing on the ground that they had failed to establish that they had not participated or to raise a question of fact as to their participation. Several of those who were thus denied a hearing availed themselves of the opportunity provided by Sec. 210.2(h) to challenge Reville's determination in an Article 78 proceeding; the Supreme Court of New York directed that hearings be held in three such cases. The payroll deductions made by Deputy Superintendent Clapp, the district's "chief fiscal officer", totalled some $6 million, all of which was applied to the school district's operating budget. Finally, it was stipulated that Reville and Clapp were "involved in the formation of the budget and the planning with regard to the utilization" of the $6 million.

On the basis of this stipulation plaintiffs sought below a declaration that the procedures in Sec. 210.2 deprived them of their property without due process of law. They made two claims. The first was that Reville, given his various executive responsibilities for the school system's operation and budget, has a disqualifying interest in the determinations he makes under Sec. 210.2(h). The second was that the procedures are infirm on their face for failure to provide hearings prior to the commencement of payroll deductions. The first claim was rejected by the district court, not without evident misgivings, on the basis of a prior decision of this court. ³ The second claim was found to be settled authoritatively against plaintiffs by the Supreme Court's dismissal of the appeal from Sanford v. Rockefeller, 35 N.Y.2d 547, 364 N.Y.S.2d 450, 324 N.E.2d 113 (1974), "for want of a substantial federal question", 421 U.S. 973, 95 S.Ct. 1972, 44 L.Ed.2d 465 (1975).

Since plaintiffs have not renewed their second claim, the sole question for review is whether in authorizing Superintendent Reville to pass on the legal sufficiency of objections, Sec. 210.2(h) transgresses the command, rooted in common law practice, see Bonham's Case, 8 Co. 107a, 77 Eng.Rep. 638 (K.B.1608); 2 Cooley, Constitutional Limitations 870-75 (8th ed. 1927), and considered to be inherent in the due process clause of the 14th amendment, see In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), that no person shall be judge in a case in the outcome of which he has an interest. The constitutional contours of that command have been most fully explored in a quintet of Supreme Court decisions: Tumey v. Ohio, 273 U.S. 519, 47 S.Ct. 437, 71 L.Ed. 749 (1927); Dugan v. Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928); Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Hortonville Joint School District No. 1 v. Hortonville Educational Ass'n, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976); and Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Although none is conclusive of the precise question before us, we must look to these decisions in seeking a resolution.

Tumey, Dugan and Ward were criminal cases involving Ohio "Mayors' Courts". In Tumey the defendant had been convicted of violating the state's prohibition act after a trial before the mayor of North College Hill in the Village's "Liquor Court". Pursuant to state statute, half of the fines assessed in this court were retained by the Village. These funds were used partly to compensate the deputy marshals and detectives who secured evidence and the prosecutors who secured convictions, 273 U.S. at 518-19, 47 S.Ct. at 439-40, and partly for general "village improvements and repairs", id. at 521, 47 S.Ct. at 440. The Village ordinance establishing the Liquor Court further provided that the mayor receive "his costs in each case, in addition to his regular salary, as compensation for hearing such cases", id. at 519, 47 S.Ct. at 440; however, no costs were paid to him unless the defendant was convicted. During a seven-month period in 1923 some $11,000 in fines redounded to the Village--this amounted to $10 per Village resident--and some $696 came to the mayor as costs in addition to his regular salary. Id. at 521-22, 47 S.Ct. at 440-441. The scheme was held to violate due process on two grounds--first, because the mayor, "as an individual", had a "direct, personal, pecuniary interest" in the costs which he received from convictions, id. at 523, 531-35, 47 S.Ct. at 441, 444-45; second, because the mayor, as the Village's chief executive, charged with the business of looking after its finances, had a strong "official motive to convict and to graduate the fine to help the financial needs of the village", id. at 535, 47 S.Ct. at 445....