Hortonville Joint School District No. 1 v. Hortonville Education Association

423 U.S. 1301

Opinion

Mr. Justice Rehnquist, Circuit Justice.

If the judgment of the Supreme Court of Wisconsin were plainly a “final judgment” for purposes of 28 U. S. C. § 1257, and if it plainly rested solely upon a construction of the Fourteenth Amendment to the United States Constitution, I would be inclined to grant the stay requested by the applicant School Board. I think that none of our cases requires the conclusion, reached by the Wisconsin court, that a school board may not be allowed to dismiss teachers whom it employs because it is not the sort of impartial decisionmaker required by due process of law. If this matter were before me on the petition for certiorari where I would be casting my vote as a Member of the Court, I would conclude that the judgment of the Supreme Court of Wisconsin did rest solely upon the Fourteenth Amendment. But in my capacity as Circuit Justice, where I act “as a surrogate for the entire Court,” Holtzman v. Schlesinger, 414 U. S. 1304, 1313 (1973) (Marshall, J., in chambers), doubts as to whether the judgment may not rest also upon a construction of the Wisconsin Constitution, and as to the finality of the judgment,' lead me to deny the application.