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Hughes, Application of

Supreme Court of New York, Appellate Division

June 7, 1955

Hughes, Application of

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[141 N.Y.S.2d 393] Osmond K. Fraenkel, New York City, for petitioner-appellant.

Michael A. Castaldi, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief; Peter Campbell Brown, Corp. Counsel, New York City), for respondent.

Before PECK, P. J., and CALLAHAN, BREITEL, BASTOW and RABIN, JJ.

BREITEL, Justice.

Petitioner Hughes, a dismissed professor at Hunter College, an institution of higher education maintained by the City of New York under the jurisdiction of the Board of Higher Education, appeals from an order at Special Term, 138 N.Y.S.2d 686, denying his application for a hearing pursuant to the provisions of section 12-a of the Civil Service Law. The order should be reversed and the petitioner granted a hearing in accordance with the provisions of that section.

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Petitioner, during the years 1939 to 1941 or 1942, while a teacher at Hunter College, was a member of the Communist Party. This he admits. He claims, however, that in 1941 or 1942, in good faith, he ceased to be a member of the Party. He also claims that at no time during his membership was he aware of the subversive character or of the activities of the Communist Party, or that he did or was required to engage in any subversive activities. Nevertheless, he contends that he was dismissed for present membership in the Party.

Section 12-a of the Civil Service Law, enacted in 1939, provides:

'No person shall be appointed to any office or position in the service of the state or of any civil division or city thereof, nor shall any person presently employed in any such office or position be continued in such employment, nor shall any person be employed in the public service as superintendents, principals or teachers in a public school or academy or in a state normal school or college, or any other state educational institution who: * * *

'(c) Organizes or helps to organize or becomes a member of any society or group of persons which teaches or advocates that the government of the United States or of any state or of any political subdivision thereof shall be overthrown by force or violence, or by any unlawful means;

'(d) A person dismissed or declared ineligible may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this [141 N.Y.S.2d 394] section. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair preponderance of the credible evidence shall be upon the person making such dismissal or order of ineligibility.' Added L.1939, c. 547; amended L.1940, c. 564. (Emphasis supplied.)

Petitioner Hughes, together with two fellow professors, was brought to trial on charges preferred by a Special Committe of the Board of Higher Education. The charges were tried by a Trial Committee consisting of the Honorable Charles H. Tuttle, as chairman, John E. Conboy and Mary S. Ingraham. The

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charges were sustained and Hughes was dismissed. It is on the basis of this dismissal that this judicial proceeding was brought.

Hughes was charged with neglect of duty and conduct unbecoming a member of the staff. The specifications under these charges were as follows:

In Specification I it was charged that Hughes both became a member of the Communist Party in 1938 and continued thereafter to be a member of the Communist Party; that at all times during the period of his membership in that Party, it advocated the overthrow of the Government by force and violence, 'and exacts from its members the duty and obligation to adhere to a body of doctrines, practices and principles that are incompatible with, and antagonistic to the ideals, purposes, and established standards of conduct of a member of the college staffs under the jurisdiction of the Board of Higher Education'. Specific reference was made to section 12-a of the Civil Service Law and the Feinberg Law, L.1949, c. 360, as amended L.1953, c. 681, Education Law, § 3022.

Specification II charged Hughes with failing to cooperate in answering questions with respect to knowledge of the activities and members of a Communist Party group, particularly one at Hunter College.

Specification III charged Hughes, together with the other two professors, of having entered into a common plan to violate the Board's resolution of September 28, 1953. This specification need not be considered, for Hughes' dismissal was predicated only on findings by the Trial Committee that he was guilty under Specifications I and II.

Because the overall charge relates to neglect of duty and conduct unbecoming a member of the staff, respondent Board of Higher Education contends that Hughes was dismissed, not under section 12-a of the Civil Service Law, but under section 6206 of the Education Law (often referred to as the 'Tenure Law'). It is therefore further argued that Hughes is not entitled to avail himself of the procedure provided in section 12-a of the Civil Service Law.

The first issue, therefore, with which the court is confronted is whether section 12-a of the Civil Service Law is applicable to the dismissal [141 N.Y.S.2d 395] of Hughes. If it is, he was entitled to make the application under that section for a judicial hearing. If, on the other hand, Hughes' dismissal was pursuant to section 6206 of the Education Law, presumably without relation to section

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12-a of the Civil Service Law, then Hughes' remedies are said to be exclusively administrative, including an appeal to the State Commissioner of Education, and subject only to review under Article 78 of the Civil Practice Act.

Subdivision 10 of section 6206 of the Education Law provides that persons having tenure under the section may be removed for one or more of the following reasons:

'a. Incompetent or inefficient service;

'b. neglect of duty;

'c. physical or mental incapacity;

'd. conduct unbecoming a member of the staff'.

Concededly, Hughes was subject to the section, and the general charge was framed in its terms. Nevertheless, it is concluded that Hughes was not dismissed exclusively under the provisions of section 6206, but also under section 12-a of the Civil Service Law.

While the overall charges were in terms listed in section 6206, Specification I expressly referred to and grounded the alleged misconduct on section 12-a. Moreover, the acts described are those proscribed in section 12-a. The Trial Committee so viewed the specification. At page 4 of its report it said as follows:

'Specification I also called attention to the enactment by the Legislature in 1939 of Section 12-a of the Civil Service Law and in 1949 of the Feinberg Law; to the adoption by the Board of Regents on July 15, 1949 of certain Rules (including Subdivision 2 of Section 254 thereof) in pursuance of the Feinberg Law; and to the Regents' subsequent listing on September 24, 1953, of the Communist Party of the United States of America, and the Communist Party of the State of New York, 'as subversive organizations within the meaning of Section 12-a of the Civil Service Law''.

At page 5 of the Trial Committee report it appears that the answer of Hughes to the overall charge and specifications joined issue under the grounds for dismissal set forth in section 12-a. In its findings, so denominated, with respect to Specification I, the Trial Committee rested upon the language and violations set forth in that section. It concluded by saying, at page 100 of its report, that, referring to Hughes:

'His conduct was also unbecoming a member of the staff within the meaning of the Tenure Law and Section 12-a of the Civil Service Law; and constituted statutory disqualification for continued employment as defined in Section 12-a of the Civil Service Law' (emphasis supplied).

[141 N.Y.S.2d 396] A further circumstance compels the conclusion that Hughes was tried under section 12-a, as well as section 6206 of the

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Education Law. He moved preliminarily to dismiss the charges because procedural rules of the Board of Higher Education applicable to charges under section 6206 of the Education Law had not been followed. The motion was denied on the ground that the Feinberg Law (referring to section 3022 of the Education Law), in conjunction with section 12-a of the Civil Service Law, mandated on the Board of Higher Education proceedings for the dismissal and declaration of ineligibility of one, who, like Hughes, was charged with membership in a subversive organization.

The conclusion that Hughes was also tried under section 12-a becomes even clearer when it is noted that the Trial Committee relied on the Feinberg Law for the presumptions contained therein. These presumptions rise from the listing of the Communist Party as a subversive organization, and from the stated rule that 'membership in any such organization included in such listing * * * shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the state.' § 3022. The Feinberg Law was enacted to implement section 12-a, insofar as personnel in public schools and colleges is concerned. Thompson v. Wallin, 301 N.Y. 476, 95 N.E.2d 806; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. The presumptions were used in Hughes' case and were evidently considered necessary.

It is important to observe that neither the Feinberg Law, Education Law, § 3022, nor the Tenure Law, Education Law, § 6206, define substantively, subversive organizations, membership in which constitutes a disqualification for a teaching position. That definition is found only in section 12-a of the Civil Service Law. The historical reason is that before the adoption of section 12-a it was debatable whether political advocacy, however subversive--or even membership in a political organization which advocated such subversive viewpoint--without a showing of an overt act of subversion committed by the individual, constituted valid ground for dismissal or declaration of inelibility. It was even debatable whether such subversive advocacy or membership could be considered unbecoming conduct (But see Penal Law, § 161, the model for section 12-a). That is why the Legislature expressly included educational personnel in section 12-a. It was clearly unwilling at that time to rely alone on the Tenure Law, which was a much older statute. Consequently, there would be at least no express statutory ground for removal, in the absence of proof that membership in the

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Communist Party or other subversive organizations is related to competency in teaching, unless dependence is had upon section 12-a. It is evident that in Hughes' case the Board of Higher Education chose to rest the dismissal on clear and express statutory grounds. It probably did not have to do so, but in doing so it invoked section 12-a.

[141 N.Y.S.2d 397] A still further telling element is that the Trial Committee and the Board of Higher Education declared Hughes ineligible to receive public employment of any kind. Such declaration could only be authorized by section 12-a of the Civil Service Law. Section 6206, the Tenure Law, authorizes dismissal, but does not, as a matter of law, mandate general ineligibility, as does section 12-a.

Given, then, that Hughes was dismissed and declared ineligible under section 12-a of the Civil Service Law, as well as section 6206 of the Education Law, the next question is whether he is entitled to a judicial hearing under that section. The Board of Higher Education argues that the judicial hearing provided for in section 12-a is permissive and not mandatory. It argues further that, in view of the very full trial and hearing, with every opportunity to offer and confront witnesses and evidence that Hughes had, it was discretionary with the court at Special Term whether another hearing, this time judicial in character, should be granted.

We should first distinguish the kind of judicial review that administrative action is subject to under Article 78 of the Civil Practice Act. Under that article, review may be had for a variety of errors of law that may have occurred in the making of an administrative determination. More importantly, it permits review to determine whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination and, if there was such proof, whether it was sufficient, C.P.A. § 1296. No such issue nor any such ground for review is involved or suggested in this case. The question, nevertheless, is whether, under section 12-a, Hughes is entitled to a judicial hearing--an independent judicial rehearing and finding--because of his dismissal and the declaration of ineligibility under the statute. The legislative and judicial history yields a univocal answer that he is.

Section 12-a was enacted in 1939. When it was first introduced as a bill in the Legislature there was no provision for judicial review (Ass. Int. No. 1321, Pr. No. 1413, 2094). The bill was then amended to provide for a full judicial rehearing, as

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is now contained in the law, but with the dismissed employee being entitled to bring the proceeding within one year rather than within four months, as it is now (Ass. Int. No. 1321, Pr. No. 2475). It was amended again, to eliminate the provision for a full judicial rehearing, but there was substituted therefor provision for limited review under Article 78 of the Civil Practice Act (Ass. Int. No. 1321, Pr. No. 2659). When the bill reached the Senate, however, it was amended once again to reinstate the provision for a full judicial rehearing in place of the limited review under Article 78, but limiting the time in which the proceeding might be brought to four months (Senate Rec. No. 591, Pr. No. 2726). This is the form in which the bill was adopted and became law. There was, therefore, the clearest consideration by the ...


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