Summary
noting that plaintiff must allege lost employment opportunities, curtailment of an express or implied promise of continued employment, or threatened infringement of fundamental rights to invoke due process procedural protection
Summary of this case from Emma v. Schenectady City School DistrictOpinion
January 19, 1973
James F. Van Norman for petitioner.
Cullen Dykman for respondent.
By letter dated June 22, 1972, the Superintendent of the Garden City Public Schools notified Alfred Baronoff, the teaching principal of Locust School since September, 1969, that his tenure had been denied, and his services terminated effective June 30, 1972. In this article 78 proceeding, Mr. Baronoff seeks to annul that determination as arbitrary and unlawful.
A. THE DISPUTE OVER TENURE
While denying that the superintendent and the Board of Education had any grounds to justify denying him tenure, Mr. Baronoff does not contest his dismissal on the merits, perhaps recognizing that the granting or denial of tenure is solely within the discretion of the Board of Education, conclusive in the absence of any arbitrary, discriminatory, or irregular aspect. ( Matter of Pinto v. Wynstra, 22 A.D.2d 914; Matter of Clausen v. Board of Educ. of City of N.Y., 39 A.D.2d 708; cf. Matter of Tischler v. Board of Educ. of Monroe Woodberry Cent. School Dist. No. 1, 37 A.D.2d 261.) Instead, Mr. Baronoff claims that prior to his dismissal, he had already acquired tenure rights by acquiescence because of time served beyond the probationary period specified under prior provisions of the Education Law, and that, in any event, procedures used to deny him tenure were irregular.
B. STATUTORY CHANGES IN TEACHER TENURE
The tenure rights of public school teachers and principals have undergone substantial changes in recent years by way of statutory amendment. At the time of Mr. Baronoff's initial appointment, May 19, 1969, subdivision 1 of section 3012 Educ. of the Education Law provided for a three-year probationary period, and where tenure was not to be recommended, a written notice to that effect, without any hearing requirement, was required at least 60 days prior to the probationary period's expiration. Then, in 1971, the probationary period was extended to five years for teachers only. Principals were exempted from any probationary period at all, as well as any tenure attainment, they being dischargeable "at any time on the recommendation" of the superintendent of schools. (L. 1971, ch. 116, § 1). This intermediate legislation threatened principals who were not already in tenured positions. Perhaps realizing this, the New York State Legislature amended section 3012 Educ. of the Education Law in the following year, and on June 8, 1972, the Governor signed into law chapter 953 of the Laws of 1972, which, in section 5, amended chapter 116 of the Laws of 1971, retroactive to May 9, 1971, by adding the following section, in pertinent part: "§ 16. The provisions of this chapter [referring to chapter 116 of the Laws 1971, changing tenure rights] shall not apply to persons who were employed as district superintendents, principals, supervisors and other members of the supervising staff, teachers and other members of the teaching staff in public school districts in this state who were appointed to a probationary period prior to May ninth, nineteen hundred seventy-one".
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[MISSING PAGE] in jail to await trial, against prolonged imprisonment; it relieves the accused of the anxiety and public suspicion upon him; and it prevents him from being exposed to the hazard of a trial after so great a lapse of time, thereby helping, for example, to prevent against the loss of witnesses or the dulling of memory ( People ex rel. La Belle v. Harriman, 35 A.D.2d 13, 14; People v. Prosser, 309 N.Y. 353, 356)." In People v. Prosser ( 309 N.Y. 353, 358), the New York Court of Appeals announced that the prosecutor cannot slough off his own responsibility to promptly try a citizen whom he has imprisoned and charged with a crime. The court said: "It is the state which initiates the action and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the defendant is speedily brought to trial."
With such awesome power over men's lives and freedom at his disposal, a District Attorney may not, must not, be permitted to postpone his obligation to an accused and to society by simply saying that "he has too much work to do."! This court is shocked by the prosecutor's latest affirmation that his own "10-month delay in (bringing the accused to) trial cannot be considered a violation of due process or denial of Sixth Amendment protections".
More than two years ago, i.e., in January, 1971, the New York Court of Appeals warned the executive branch of government in People v. Ganci ( 27 N.Y.2d 418, 423) that "calendar congestion" would no longer be considered a legal excuse for depriving a defendant of a speedy trial, saying: "But the failure of the State and local governments to provide services and facilities rapidly enough to keep apace with the volume of crime is not a categorically complete answer to the need for prompt trial and practical means must be found in the legal system to minimize undue delay in trial." The 16 months during which the defendant in Ganci ( supra, p. 422) remained in prison awaiting trial was not "attribut[able] to the prosecutor", who was found by the court to be "steadily ready for trial". It is not so in this case.
Chief Judge FULD, dissenting in Ganci ( supra, p. 430), then emphasized that the State could not offer its own neglect and parsimony as an excuse for delaying the prosecution of a citizen accused of crime. He declared (p. 431) that "it is the responsibility of the State, or its subdivisions, to do what is necessary — by furnishing funds, facilities and personnel ____ to assure the effective operation of the judicial system, and that burden may not be shifted to the defendant."
Calendar congestion and calendar delays are not of a defendant's making. A citizen's constitutional right to a speedy trial may not be suspended upon such imponderable circumstances beyond his control. In Barker v. Wingo ( 407 U.S. 514), Mr. Justice WHITE insisted that the government will not be permitted to delay the prosecution of criminal cases and excuse itself by simply pleading that its calendars are overcrowded, in the following terms (p. 538): "Unreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that public resources provided by the State's criminal-justice system are limited and that each case must await its turn."
In a serious but essentially "run-of-the-mill criminal case" such as this, the sovereign State, with its might and power, must do better. The Trial Justice has the power and the responsibility to act in such circumstances.
Whether there has been undue delay between indictment and trial is a matter for discretion of the trial court upon consideration of all the circumstances of the particular case ( People v. Alfonso, 6 N.Y.2d 225, 229; People v. Abbatiello, 30 A.D.2d 11, 15; People v. Reynolds, 39 A.D.2d 812, 813; People v. Sylvester, 50 Misc.2d 677).
The court does not reach the question whether CPL 30.30 applies to this case, having determined, at the threshold, that the defendant's Sixth Amendment rights to a speedy and public trial have been violated. Note must be taken, however, that CPL 30.30: "appl[ies] to criminal actions commenced on or after the first day of May, 1972". One of the principal evils which the new law sought to remedy was to prevent impoverished defendants from: "languishing in overcrowded jails for months without trial, while frustrations build and the potential for jail disturbances increases.",3
Governor Nelson A. Rockefeller's Annual Message to the New York State Legislature, January 18, 1972.
A statute which was specifically designed to enforce the speedy-trial mandate of the United States Constitution and to prevent the money bail system from making one law for the poor and another for the rich should not be so interpreted as to miss its stated aims.
Accordingly, the defendants' motion is granted.