Roger Dileo v. Richard Greenfield

541 F.2d 949

• Court: Court of Appeals for the Second Circuit
• Decided: September 1, 1976
• Docket: 563, Docket 75-7316
• Status: Published

Opinions

LUMBARD, Circuit Judge:

Roger diLeo, ...formerly a teacher of ^ French and Spanish in; a Bloomfield, Connecticutjuhior high school, appeals from an order of the District Court of Connecticut that upheld his dismissal by the Bloomfield Board of Education. The district court found that notification to diLeo of the basis . for his termination had cured any vagueness in the provisions of the statute under which he had been dismissed. We hold that, '.'.the statute at issue is'mot unconstitutionally vague as applied and therefore affirm the result reached by the district court. ;

Prior to June 1973, diLeo taught in the Bloomfield school system for longer than three years and thereby acquired tenure under Conn.Gen.Stat. § 10-151. As a tenured teacher, diLeo could be terminated only after opportunity for a hearing at which the Board of Education had to prove that he had demonstrated:

“(1) inefficiency or incompetence;

(2) insubordination against reasonable ruíes~of 'the ' board of education;

(3) moral misconduct;

(4) disability, as shown by competent medical evidence;

(5) elimination of the position to which the teacher was appointed, if no other position exists to which he may be appointed if qualified; or

¡ (6) other due and sufficient cause

Conn.Gen.Stat. § 10-151(b).

On June 21 and July 2,1973, the Board of Education notified diLeo that his employment would be terminated because he had j exhibited “improper conduct towards stu-, dents on several occasions” sufficient to | constitute “other due and; sufficient cause” \ under the statute; After a hearing at which parents testified to diLeo’s alleged misconduct, the Board of Education officially terminated appellant’s employment.

Thereafter, on September 11, 1973, diLeo instituted a civil rights action against appellees under 42 U.S.C. § 1983. He claimed that § 10-151(b)(6) was unconstitutionally vague, that the notification he had received on June 21 and July 2 failed to give him sufficient notice of the charges against him, and that the hearing that preceded his dismissal had been tainted by hearsay. On motion for summary judgment, the district court found that hearsay had been admitted in violation of diLeo’s right to due pro'cess and ordered a new hearing. The court did not, at that time, address appellant’s other claims or order his reinstatement.

New hearings were held May 20 and June 5, 1974.¹ The Superintendent of Schools testified that he had received numerous complaints.....concerning appellant’s' classróoñTcbnduct and apparent lack of concern for the education or emotions of his pupils. Delegations of students had visited the Superintendent to inform him of the deteriorating conditions - in appellant’s classes and sixty-two students had signed a' petition, which was submitted to the principal of the school, stating that they were not learning anything from diLeo. Meetings between school administrators and appellant failed to ameliorate the situation. One student testified that after his mother had complained to school administrators, diLeo derided him in front of his classmates and on other occasions refused to assist the student with classwork. There was also testimony that on several occasions appellant made comments with sexual connotations to students, thereby embarrassing students before their peers. Further evidence revealed that diLeo had not completed a lesson plan book and consistently refused to answer students’ questions or to explain ambiguous textbook material. DiLeo did not testify at the hearing and refused the offer of a continuance to prepare a response.

On the basis of this testimony, the Board of Education, by decision of June 18, 1974, again terminated appellant. Appellant then renewed his motion for summary judgment of the claim that the statute on which appellees had based the dismissal was so vague that he could not have known the standard to which his conduct had to conform. In an order of February 4, 1975, the district court rejected this contention. The court held that while § 10-151(b)(6) stand- . ing alone is vague, the prehearing notification received by diLeo sufficiently informed him of the acts that served as the basis for his dismissal so that he could prepare a defense at the hearing.

The court further found that the Board of Education had improperly deprived appellant of his teaching position for the year between the first and second hearings. After a hearing on damages, the court entered judgment of $6327 for diLeo. This amount was paid by the Board of Education and retained in a separate bank account by diLeo’s attorney. DiLeo then entered this appeal from the holding that § 10-151(b)(6) was not unconstitutionally vague.

Appealability

Appellees claim that acceptance of the damage awarded by the district court constitutes satisfaction of a judgment based on all diLeo’s claims and thereby precludes an appeal from that judgment. Appellees maintain that payment of the judgment was made only in the expectation that a satisfaction of judgment would be forthcoming from appellant and that, although no document of satisfaction was received, appellant is now estopped from appealing those portions of the judgment decided against him. We hold that the claim for which diLeo recovered damages is so unrelated to his claim of unconstitutional vagueness that he is not estopped from bringing this appeal.

DiLeo received judgment based on one year’s salary because the Board of Education terminated him after a hearing that was tainted by hearsay. ' He was not reinstated pending a rehearing that comported with due process. The Board of Education did not appeal from this determination and thus the question of whether diLeo should have been retained as a teacher for the 1973-1974 school year has been finally settled in his favor notwithstanding any question of the validity of § 10-151(b)(6). The money judgment th&t is thus conceded to be due to diLeo for that period bears no relation to the controversy which is the subject of this appeal and it grants to diLeo “only that to which he is entitled in any event.” Allen v. Bank of Angelica, 34 F.2d 658, 659 (2d Cir. 1929). See Embry v. Palmer, 107 U.S. 3, 8, 2 S.Ct. 25, 27 L.Ed. 346 (1882); In re Electric Power & Light Corp., 176 F.2d 687, 690 (2d. Cir. 1949).

Even if this is considered a case in which a litigant accepts the benefits of a judgment on which his appeal is based, see Wilson v. Pantasote Co., 254 F.2d 700 (2d Cir. 1958), we do not believe that an appeal is precluded. Subsequent to the decision of this court in Wilson, the Supreme Court espoused the principle that “where a judgment is appealed on the ground that the damages awarded are inadequate, acceptance of payment of the amount of the unsatisfactory judgment does not, standing alone, amount to an accord and satisfaction of the entire claim.” United States v. Hougham, 364 U.S. 310, 312, 81 S.Ct. 13, 16, 5 L.Ed.2d 8 (1960). The good sense of that rule is apparent in this case. DiLeo cannot have considered an award for the 1973-1974 school year to have constituted adequate damages when it is clear that the purpose of his lawsuit was to regain his employment as a teacher and he had already been terminated for the 1974 — 1975 and succeeding school years.

We also note that we would reach the same result by applying the test of appealability which recently has been adopted by at least three other circuits. Under this test, a party who accepts the benefits of a judgment is foreclosed from taking an appeal only if the circumstances indicate a mutual intent finally to settle all claims in dispute and thereby to terminate the litigation. See United States for Use and Benefit of H & S Industries, Inc. v. F. D. Rich Co., 525 F.2d 760, 764-65 (7th Cir. 1975); Hawaiian Paradise Park Corp. v. Friendly Broadcasting Co., 414 F.2d 750, 752 (9th Cir. 1969); Gadsden v. Fripp, 330 F.2d 545, 548 (4th Cir. 1964). See also 9 Moore, Federal Practice 1203.06 at 719 (1975). Termination of diLeo for “improper conduct towards students” will undoubtedly cause him difficulty in securing future teaching positions. Therefore, diLeo cannot be said to have intended a $6300 judgment to have settled his claim that he was wrongfully dismissed from a position, of which he has been deprived since 1973, because the statute pursuant to which he was dismissed was unconstitutional. However, since we have concluded that this case is appealable under the standards prevailing in this circuit, we need not rest our conclusions on the “intent of the parties” rationale.

Vagueness

The notion of due process requires that sanctions be imposed on individuals^ only if they could reasonably have known in advance that their questioned behavior had been proscribed. In accordance with this principle, the Supreme Court has held that a statute may be void for vagueness in order to ensure that individuals are fairly apprised in advance regarding the specific conduct which the legislature has prohibited. See Smith v. Goguen, 415 U.S. 566, 573, 9,4 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). DiLeo contends that the Connecticut statute which authorized his dismissal for “other due and sufficient cause” failed sufficiently to inform him of the kind of conduct which is proscribed. We disagree.

We do not agree with the district court that vagueness in the statute could be cured by subsequent explanation by the Board of which acts it charged as falling within the scope of § 10-151(b)(6). Due-process requires prior notice of what constitutes forbidden behavior. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

In the instant case, however, diLeo must iiave known beforehand: that the con- /' duct for which he was terminated fell with in the proscriptions of the statute. The test/ of ^statute’s vagueness for due process; purposes is to be made with respect to the actual conduct of the actor who attacks the statute and not with respect to hypothetical situations at the periphery of the statute’s scope or with respect to the conduct of other parties who might not be forewarned by the broad language. See United States v. Powell, 423 U.S. 87, 93, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”)

The evidence presented to the Board of Education allowed it to conclude that diLeo had engaged in a persistent pattern of neglecting his professional duties and harassiñg and Humiliating students. There was evidence that his conduct continued and worsened after diLeo met with school ad- •- v ministrators to resolve complaints received from parents and students rfegarding his classroom performance. In these circumstances it cannot be said that diLeo did not or should not reasonably have known that such behavior constituted due and sufficient cause for dismissal. Nor can he successfully contend that he had to guess whether the challenged statute would apply to such derelictions and bizarre conduct. See Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

The applicability of the statute to diLeo’s conduct was even clearer in light of the well-established principle of ejusdem generis. Where general terms in a statute follow an enumeration of terms with specific meaning, the general terms can be expected to apply to matters similar to those specified. See United States v. Powell, supra, 423 U.S. at 91, 96 S.Ct. 316; United States v. Alpers, 338 U.S. 680, 683, 70 S.Ct. 352, 94 L.Ed. 457 (1950); In re Weaver, 339 F.Supp. 961, 962-63 (D.Conn.1972). In the present case, the challenged general subsection, § 10-151(b)(6),- follows^..delineation ■ of five grounds for dismissal the meanings of which, appellant concedes can be understood by a person of reasonable intelligence. These five grounds all relate to the capacity of a teacher to perform his professional duties. Under the rule ejusdem generis, therefore, the scope of § 10-151(b)(6) must include conduct relevant to performance of teaching duties. The legislature obviously intended the statutory proscription to embrace classroom performances as professionally unacceptable as diLeo’s were. Thus, diLeo must fail in his claim that the statute is unconstitutionally vague as applied to him.

Judge Newman suggests in his dissent, however, that the court should abstain from deciding this issue, in accordance with the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Where there may be a construction of state law that could obviate the need for consideration of a constitutional question, and interpretation is difficult, a federal court may in its discretion abstain so as to serve the interests of federalism by allowing prior state court resolution of the state law question. Id.

Nevertheless, we do not believe 1 we should abstain on the issue of the vague-j ness of the statute as applied. We find! diLeo’s conduct to fall squarely within the! core of the statute’s proscription, and feel sure that a state court would agree. We are not imposing any restrictive interpretation into § 10-151(b)(6) that might hamstring the operations of state educational administration. Cf. Hostetter v. Idewild Bon Voyage Liquor Corp., 377 U.S. 324, 329, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964). Compare County of Allegheny v. Mashuda Co., 360 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959), with Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959). Therefore especially in light of the time already consumed in this litigation, cf. Hostetter v. Idewild Bon Voyage Liquor Corp., supra; County of Allegheny v. Mashuda Co., supra, 360 U.S. at 196-97, 79 S.Ct. 1060, it is proper that we should reach the merits of diLeo’s vagueness claim as we have done supra.

Overbreadth

DiLeo can argue the vagueness of the statute as applied to others if and only if he demonstrates that § 10-151(b)(6) is facially overbroad in violation of the First .Amendment. Compare Parker v. Levy, 417 U.S. 733, 757-61, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), with id. at 755-57, 94 S.Ct. 2547. Theoretically, a sweeping interpretation of the statutory words “other due and sufficient cause” to endow the Board with unrestrained discretionary power of termination could chill teachers’-exercise'' of their rights to free speech. In his brief, however, appellant specifically declines to raise these First Amendment claims.

Moreover, as we have indicated supra, § 10-151(b)(6) is readily susceptible to a saving construction under which it applies only to conduct bearing' on the per- ! formance of teaching duties, i Á saving construction is especially appropriate in an area such as discipline of teachers, where a myriad of uncontemplated situations may arise and it is not reasonable to require a legislature to elucidate in advance every act that requires sanction. Some general “catchall” phrase may be incorporated to ensure that the legislature’s inability to detail all\ /matters meant to be proscribed .does not-i permit clearly improper conduct to go un- \ Corrected. Application of the accepted rule of Ejusdem generis indicates that § 10-151(b)(6) is not designed to permit dismissal for mere disagreements over educational policy or for conduct that bears no relationship to a teacher’s classroom conduct, but rather is limited to conduct reflecting on professional teaching capability. The statute thereby attains “an ascertainable and intelligible content,” United States v. Powell, supra, 423 U.S. at 95, 96 S.Ct. 316 (Stewart, J. concurring), that coincides with the legislature’s clear intent and that poses no First Amendment problems.

We are reasonably confident that Connecticut state courts would apply this ejusdem generis construction to § 10-151(b)(6) if called upon for their interpretation. See Griffin v. Faneher, 127 Conn. 686, 690, 20 A.2d 95, 97 (1941); State v. Certain Contraceptive Materials, 126 Conn. 428, 430-31, 11 A.2d 863, 864-65 (1940); State v. Arpino, 24 Conn.Sup. 85, 186 A.2d 827, 830-31 (App. Div.1962). Hence, the statute as enacted is not a significant burden on the exercise of First Amendment rights, and we should not sustain an overbreadth challenge to the statute even if that challenge had been argued before us. Cf. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 894-95 n.189 (1970). Consequently, it is not necessary for us to attempt to make at comprehensive and definitive interpretation of the statute in the present case. If follows that abstaining on this issue is the wiser course. See Zwickler v. Koota, 389 U.S. 241, 251 n.14, 88 S.Ct. 391, 19 L.Ed.2d 444, (1967). Leaving the interpretative task to Connecticut state courts handling future cases ensures that we cause no unnecessary embarrassment to the functioning of Connecticut educational institutions.

Affirmed.

1 . The recital of the evidence adduced at the school board hearings is taken from the district court’s opinion.