Warren E. Burger: We will resume arguments in Hortonville Joint School District against the Education Association. Mr. Friebert.
Robert H. Friebert: Good morning, Mr. Chief Justice and may it please the Court. When we left off yesterday, I think there might have been some misunderstanding communication in answer to question that I had with Mr. Chief Justice Rehnquist. I had stated that under Federal Law with respect to Municipal, or with respect to Federal employees, Congress has declared the penalty to be automatic and that is discharge by Act of Congress. In a private sector, there is no penalty for striking, it is a protected activity and so while in the private sector, there is no penalty for striking, Congress has declared that for employees of a Federal government, there is an automatic penalty of discharge and it is a crime. This is not the case in Wisconsin. Wisconsin legislature has merely stated that strikes are prohibited and provided no penalty, except for those situations when the strikers continue on strike after a judicial order, ordering them back to work. It is at that point only in Wisconsin that the legislature has created a penalty. In fact, under Wisconsin law, as far as striking teachers are concerned, there is no absolute right to an injunction. The Court, the Wisconsin Supreme Court interpreting Wisconsin law, has clearly indicated recently in cases cited in the brief --
John Paul Stevens: If the penalty is not appropriate until there is disobedience of a Court order, there was no Court order here, was there?
Robert H. Friebert: That is correct.
John Paul Stevens: Then this was not a penalty issue that had to be decided, was it?
Robert H. Friebert: No, the Wisconsin Supreme Court in this case decided that there could be penalties imposed by the Municipal employer in addition to those created by the legislature, but that --
John Paul Stevens: What is the point of your reference to the necessity for a Court order, I do not understand?
Robert H. Friebert: I am stating that that is the only statement made by the Wisconsin legislature on the subject. The Wisconsin Supreme Court said in this case, that in addition to those penalties, there could be disciplinary proceedings conducted by the employer, but that discharge is not an automatic penalty. There can be a wide variety of discipline imposed for striking which is a completely different framework than that created by Congress in which the penalty is fixed. Therefore, under Wisconsin law, there is discretion and judgment which must be used in the penalty phase of any proceeding involving a strike.
Warren E. Burger: Penalty phase Mr. Friebert, is there not a breach of contract here among other things?
Robert H. Friebert: Perhaps.
Warren E. Burger: Perhaps?
Robert H. Friebert: Perhaps, only perhaps the concurring opinion and the --
Warren E. Burger: That they were on strike illegally?
Robert H. Friebert: No, the Wisconsin Supreme Court in my judgment as reading the whole package seems to be saying that even though the strike might be prohibited, there can be a mitigation of justification and the whole usual kind of oral mitigation as you get in any penalty phase of the proceedings, which takes it completely different as to whether it does not matter, whether they were unlawfully on strike. That does not mean they automatically discharge and that does not mean they automatically breached the contract. The concurring opinion of Mr. Justice Robert Hanson, viewed this case as a contract case and his opinion was that there would be no automatic recession.
Byron R. White: That does not have any Federal question, you just keep talking about Wisconsin law. As I understood, we brought the case here because there was a Federal issue in it. The Wisconsin Supreme Court decided that the School Board was not a -- was not an unbiased body to make any decision at all and that is the issue, that is here. Why should we be arguing about what Wisconsin law means?
Robert H. Friebert: It is important to know what the Wisconsin Supreme Court did Mr. Justice White, in determining whether there is a need for an impartial decision maker?
Byron R. White: Why do you not talk about that then?
Robert H. Friebert: I think that I am and that the reason there was a need for an impartial decision maker is because the issue is not just whether there was a strike in progress or whether these people had been on strike. Under Wisconsin law, these people, the school board must decide what a penalty should be and whether -- and it must under Wisconsin law determine a reasonable penalty, therefore, and that it almost is a classic due process syllogism. The teachers have property interest and it is a dual property interest in this case because they have two contracts in effect. They have a contract for the 73-74 School year and they have contracts, property rights under Wisconsin law, for the 74-75 School year.
Warren E. Burger: How do you describe the “Right,” not to go on strike? Is that a contract in part or is it purely statutory and not part of the contract?
Robert H. Friebert: It is not part of the contract. In fact, the Board was trying to bargain for a No-Strike Clause and was unable to get it as they state in their exhibit 11.
Warren E. Burger: Is the strike prohibited by law in Wisconsin?
Robert H. Friebert: Yes, strike is prohibited by law without a penalty.
Warren E. Burger: Well, then if there is a prohibition by the law of the legislature of Wisconsin, then they do not need a No-Strike Clause in the contract, do they?
Robert H. Friebert: They were asking for it.
Warren E. Burger: Yes, but they do not need it?
Robert H. Friebert: Probably not. Possibly not, possibly not in the sense in that perhaps their concern was that this kind of it that the Wisconsin No-Strike law was not as pervasive as they thought and they might have been right in that because the Wisconsin Supreme Court said, there is nothing automatic about any penalty if they have been wanting to bargain that into their agreement in order to make things automatic under their agreement. The --
John Paul Stevens: Mr. Friebert, can I ask you another question about the penalty theory of the case?
Robert H. Friebert: Yes sir.
John Paul Stevens: Suppose -- you say of course that there should be an impartial decision maker who should decide what the penalty for striking should be. Supposing that person should conclude that it would be in the best interest of the School System to hire permanent teachers and that that could not be done without first discharging the strikers, could the impartial decision maker take that kind of consideration into account in making his decision in your view?
Robert H. Friebert: He cannot take that into consideration in other accounts that we do not like that teacher and it would be best for the School System to have another set of teachers because --
John Paul Stevens: The answer is no.
Robert H. Friebert: The answer is no --
John Paul Stevens: Could anyone decide to strike -- to discharge the striking teacher just because that he thought it would be in the best interest of the School System? I take it the interest of the School System becomes entirely irrelevant once the strike commences?
Robert H. Friebert: No, no I do not agree with that Mr. Justice Stevens.
John Paul Stevens: Well why not? Who represents the School System then under your theory of the case?
Robert H. Friebert: The School System is represented in the hearing before the impartial decision maker.
John Paul Stevens: He can take into account if I just understood you, anything except the appropriate penalty?
Robert H. Friebert: It can take that into account in determining an appropriate penalty, it is one factor. It is one factor to take into account.
John Paul Stevens: (Voice Overlap) differently then you did before?
Robert H. Friebert: And perhaps I misunderstood your question. I thought that the question was can the board --
John Paul Stevens: I am trying to give you a fact pattern which includes a non-penalty type consideration. In other words, the sole interest here would be on the School System, could be impartial decision maker predicate his decision in part on something that is unrelated to the question of punishment?
Robert H. Friebert: I suppose I do not think you can separate the punishment aspects so I would again say no.
John Paul Stevens: So then there would be no one who would represent the School System?
Robert H. Friebert: No, I --
John Paul Stevens: You are in a dilemma?
Robert H. Friebert: No, I do not think so Mr. Justice Stevens, there are many times when governmental employers are making decisions which do not affect property and liberty interest. In those areas they have absolute, almost unfettered discretion. When they infringe upon property and liberty interest, then other factors come into consideration. You cannot destroy my judgment or view due process, property or liberty interest by cloaking yourself by saying, “We are doing this in the best interest of the School System.” Anybody can say that, any governmental agency can say they are doing something in the best interest of the School System, but in the process of process of property and liberty interest are destroyed, due process considerations come into play. So it is just a factor in determining whether to destroy the property interest of the teachers and the liberty interest of the teachers.
John Paul Stevens: If you are correct that a property interest is destroyed, you would have a State law remedy for breach of contract, so it just postponed, the remedy?
Robert H. Friebert: Yes, if -- not necessarily because you could have a breach of contract, but not the total destruction of the property interest. Part of it all is here is that the -- well for one thing, breach of contract might not necessarily get your jobs back. There might just be money damages in the breach of contract situation. The contracts, there is the future property interest and expectations of employment under Wisconsin and which probably cannot be reached by a breach of contract action and primarily it is, it is a part of it. The penalty -- this is -- this is a teacher discipline case for alleged wrong doing and the penalty must be reasonable under Wisconsin law, there is nothing automatic. That being the case since property interests are being infringed upon, it follows that the decision maker must be impartial. He cannot be a partial biased decision maker.
William H. Rehnquist: If the penalty must be reasonable under Wisconsin law, could the not court in a breach of contract action take that facet of Wisconsin law into consideration in awarding relief?
Robert H. Friebert: It might be able to, but if that is a correct statement Mr. Justice Rehnquist of Wis --
William H. Rehnquist: I thought I was paraphrasing your statement?
Robert H. Friebert: It might, I do not know because this is -- this is a groundbreaking case as far as Wisconsin law is concerned, but assuming that that is correct then it seems to me that there is no Federal issue for this Court because all is being said then is that -- is that when do we get our hearing, now or in a year and that does not seem to be important.
Byron R. White: (Inaudible) if we said that they were quite wrong on the Federal issue, they decided and remanded it?
Robert H. Friebert: The Federal issue they decided was that there has to be an impartial decision maker. I might be mistaken --
Byron R. White: Let us assume -- let us assume you are quite correct that whatever liberty of property interest involved are sufficient to invoke the due process because you have not yet suggested to us or at least said very much about why even if the board should be unbiased or impartial, why we must assume that it is not or why we should agree with the Wisconsin Supreme Court, that it is not?
Robert H. Friebert: Right, I will address that --
Byron R. White: You do not want us to -- you do not want us to set aside that judgment I take it?
Robert H. Friebert: Not at all, the bias or prejudgment decision by the Wisconsin Supreme Court seems to fall within every classic definition as expressed in this Court’s opinion in Withrow versus Larkin --
Speaker: (Inaudible)
Robert H. Friebert: Yes, I am familiar with it. First of all, the board in the Trial Court never seem to really deny, although they did in a way, but their position in the Trail Court was not that they were unbiased, their position as adapted by the Trial Court --
Byron R. White: I understand it is, but --
Robert H. Friebert: For bias?
Byron R. White: Yes. Is it some presumption that we have to think? I thought in the Withrow and other cases that in situations like this you assume that public officials will do their job, we do not certainly do not presume bias?
Robert H. Friebert: In some circumstances I think that the presumption as I read the opinion drops and those are circumstances where the person who is the decision maker is an adversary. If I am reading your opinion correctly, Murchison was distinguished on exactly that ground. We have the adversary situation here, and therefore, the language implied in Murchison should come roaring back in this case.
Byron R. White: I do not know if Withrow against Larkin and other cases say just because the same people make a charge that adjudicate it does not mean that the adjudicators are biased?
Robert H. Friebert: That is not this case. This case is a participant in the dispute, a participant in dispute not who are involved in the very events in which they are about to judge, totally different with Withrow versus Larkin with the Board, was not involved with the events of the charges being alleged against Doctor Larkin.
Byron R. White: I do not think that the School Board have (Inaudible)?
Robert H. Friebert: They have a monetary interest on several grounds --
Speaker: No.
Robert H. Friebert: There is a personal monetary interest in that, there is many of these people are very large property owners in the area, but in addition to that they have a classic award dilemma by their institutionalization of their situation in that they are to decide the monetary policies of the School District. They are charged with the decision to make monetary decisions. There is a monetary dispute in part with their employees. They can seize upon something and which is a strike situation and in one swoop as the Wisconsin Supreme Court said, get rid of their problems.
Warren E. Burger: Do after, I must misunderstood you and misunderstood this record, after it is conceded that they were on strike and that the strike was illegal?
Robert H. Friebert: The monet, no -- the monet, no. That is, that -- once that decision is made, that means that there might be --
Warren E. Burger: They have a choice of what to do about the illegal conduct of the teachers, right?
Robert H. Friebert: Yes.
Warren E. Burger: The choices are what?
Robert H. Friebert: The choices are, and all but one of them do not infringe one property interest. They can go to Court for an injunction. They cannot order the injunction. They must seek an injunction from an impartial decision maker and they do not have the right to an injunction under Wisconsin law, it is not automatic. That does not infringe upon property or liberty interest because there will be an intervention of a third party who is impartial. They can mediate, which has no effect on property or liberty interest, mediate the dispute, a labor dispute.
Warren E. Burger: Mediate what, precisely what, (Voice Overlap) is an illegal strike?
Robert H. Friebert: That is part of the mediation process.
Warren E. Burger: Precise now.
Robert H. Friebert: It is part of, it is part of negotiations, it is --
Warren E. Burger: Exactly what would you mediate?
Robert H. Friebert: You would mediate the late, the labor dispute -- (Voice Overlap)
Warren E. Burger: Response, let us be specific. Just the response of the School Board, is that not correct, whether they are going to fire the teachers, let them come back, we will work out a compromise, is that not the only thing that has got to be decided, a penalty?
Robert H. Friebert: Yes.
Warren E. Burger: But use a neutral term response, is that not the only thing that there is to be decided?
Robert H. Friebert: Yes, but one of those responses, the one that was chosen here infringes property and liberty interest, the others do not, and therefore, due process comes in to play.
Warren E. Burger: Interest of the school teacher who is on an illegal strike?
Robert H. Friebert: I mean to quibble right here Mr. Chief Justice with the word illegal. The Wisconsin Statute says it is prohibited and as a matter of fact, jaywalking under the Wisconsin Statutes have more definitive penalties than this. They were in a prohibited strike the same as the Board itself, if they might be in a prohibited practice if they do not bargain.
Byron R. White: The Supreme Court of your State to construe the law to authorize the School Board to discharge for striking because it was prohibited?
Robert H. Friebert: They authorized discharge as one of a range of penalties -- (Voice Overlap)
Byron R. White: Well, that is the construction of the statute --
Robert H. Friebert: Correct.
Byron R. White: -- it is not just a judicial invention?
Robert H. Friebert: Correct, but it is not required that discharge be imposed, just as in Arnett versus Kennedy, it is not required that discharge be imposed and because, because the property interest were being affected, due process considerations come in to play. If the Wisconsin Legislature had said as Congress, that discharge is automatic, this would be a totally different case. Then probably --
William J. Brennan, Jr.: Looking at page A-24 which is the opinion of your Supreme Court, would you tell me whether on the issue before us, namely whether or not the School Board was an impartial decision maker? Your Supreme Court held it was not for any reasons except those stated in the paragraph at A-24 beginning the back ground giving rights, anywhere else in the opinion which isolate the reasons for that conclusion?
Robert H. Friebert: I am sorry, I do not know which page you are --
William J. Brennan, Jr.: Well I am looking at the petition for cert, page A-24.
Warren E. Burger: Mr. Freibert.
Robert H. Friebert: I am sorry, what is the question Mr. Justice Brennan?
William J. Brennan, Jr.: This is a long opinion.
Robert H. Friebert: Yes.
William J. Brennan, Jr.: But the only place I find in it in the statement of reasons supporting the conclusion that the School Board was an impartial decision, was a partial decision maker. It is in that paragraph starting at the background giving rights and the only reasons I find there are first, that the Board was a collective bargaining agent and as such it is not difficult to imagine the frustration on the part of the Board members and negotiations broke down which is not to suggest that it is not dedicated public service, but they were not uninvolved in the events which were precipitated decisions they would required to make. Decision to discharge was possibly convenient alternative and that is all that appears as the basis upon which as I read it, they finally concluded that the Board was not an impartial decision make in the constitutional sense?
Robert H. Friebert: I think there is another place and that is on the Appendix page 257, I will find it in, yes --
William J. Brennan, Jr.: (Inaudible) in the opinion --
Robert H. Friebert: Yes, that is the opinion I will have to -- appendix page, 257 of the Major Appendix, and they state in those situations, in the first paragraph, in those situation where an employed teacher is discharged or otherwise disciplined in due processes required and the School Board is in an adversary position, they provide this review. I think that is an implicit finding of an adversary position.
William J. Brennan, Jr.: (Inaudible) Collective bargaining agent, and frustrated because they could not -- when negotiations broke down, and therefore, they were mad at the teachers and therefore they are not an impartial decision makers, any thing more than that?
Robert H. Friebert: No, not in the opinion. However, that I think is --
William J. Brennan, Jr.: (Inaudible) constitutionally adds up to a partial decision maker, so it not, a biased decision maker?
Robert H. Friebert: Not necessarily. We have been deprived -- we have been deprived of a Trial Hearing in this matter. This is case is up on a grant of summary judgment in the Lower Court and a reversal by the Wisconsin Supreme Court and --
William J. Brennan, Jr.: (Inaudible) here is whether the elected members of the Public School Board who have the exclusive authority under the State Law to discharge teachers engaged in illegal strike are prohibited by the Due Process Clause from doing so because they are not sufficiently impartial decision makers, that is the only issue before us?
Robert H. Friebert: That issue almost concedes that they were biased, by the way it was presented by them, but, but we try to make a record before the Board in the hearing and the Board said it was not relevant. We wanted a trail type setting in the Trail Court and the Trial Court said these was all irrelevant so we do not --
Byron R. White: (Inaudible) even if they made a mistake it does not prove they are bias, on that basis (Voice Overlap).
Robert H. Friebert: Well, in that event -- by the way, we assert in our request that this Court and allege that this Court does not have jurisdiction because there has been no final judgment in the case. All that is up here is an effect, an interlocutory appeal of a denial of a motion for summary judgment.
William H. Rehnquist: But your Supreme Court said that judicial type proceedings are over now and then it sent it back to especially constituted Court to perform the role of an impartial decision maker?
Robert H. Friebert: Correct, to determine all issues. I would assume that if the Board in that proceeding wants to challenge the decision on bias by evidence, they might be able to try it or I do not mind having a Trial on that.
William H. Rehnquist: Well, I read your Supreme Court’s opinion not as sending it back to a Trial Court for a determination of bias, but determining right there that there was bias and for that reason saying it had to go back to this especially Constituted Circuit Court?
Robert H. Friebert: That is correct, they did do that. However, even if the Court order say the record is not sufficient to support, by the way there is more in the record besides what the Wisconsin Supreme Court said. There is prejudgment shown in this case by exhibit 11 on the Appendix, page 112 where they said, weeks before what they were going to do before there was any hearing or any notice.
Warren E. Burger: Determination that there was prejudgment on that basis --
Robert H. Friebert: No, but it had not been tried either by the Trial Court --
Speaker: (Inaudible)
Robert H. Friebert: They had said at appendix, page 112, exhibit 11, as to how they viewed their options. They viewed one of their -- the Board and they viewed weeks before these hearings and they stated specifically that one of their options would be to discharge them in hire permanent replacements.
Byron R. White: Do you conduct some preliminary hearing and find probable cause and --
Robert H. Friebert: No, the judge who conducts a preliminary hearing and finds probable cause is not the victim in the alleged crime.
Potter Stewart: Was that not statement factually correct, or factually and legally correct that one of their options was to discharge the striking teachers?
Robert H. Friebert: No, if their option is to seek discharge under the law and perhaps to hire permanent replacements, it would be just like saying --
Potter Stewart: I mean seek discharge --
Robert H. Friebert: Like seeking --
Potter Stewart: There was an employer and an employee situation. Now an employer does not seek discharge of his employee, he discharges them, does he not?
Robert H. Friebert: Unless it is -- unless it is governmental unit in which case there has to be due process.
Potter Stewart: Right, but --
Robert H. Friebert: I view it as thought they were to say, we will issue an injunction. Well, they cannot issue an injunction just like they cannot totally discharge.
Potter Stewart: I thought that it was common ground in this case that an alternative response to use the Chief Justice's of the Hortonville School Board to this strike was the discharge of the striking teachers?
Robert H. Friebert: Yes.
Potter Stewart: Both under the Wisconsin law as it is (Voice Overlap)
Robert H. Friebert: An alternative potential.
Potter Stewart: Yes, and an alternative.
Robert H. Friebert: Yes.
Potter Stewart: I thought that was common ground, am I wrong about that, am I mistaken?
Robert H. Friebert: I would state it differently that they have to -- once that is there they can penalize them by suspension, that was not --
Potter Stewart: That is another alternative. My question is, is that a legally valid alternative under Wisconsin law as interpreted in this and perhaps other cases by the Wisconsin Supreme Court.
Robert H. Friebert: It is legally --
Potter Stewart: And if It is not then I misunderstand --
Robert H. Friebert: It is legally valid, but -- it is legally valid, but it must comply with due process.
Potter Stewart: Well, everything must comply with due process, that is as long as we have a constitution?
Robert H. Friebert: There is -- I would equate it with a similar thing like a robbery case where the penalty can be 30 years.
Potter Stewart: Yes or no because if it is no then I misunderstand the -- misapprehend the --
Robert H. Friebert: It is one of the potential penalties, yes.
Potter Stewart: That is what I thought. I do --
Robert H. Friebert: It is like --
Potter Stewart: To that extent I understand with this case.
Robert H. Friebert: It is like a robbery case in Wisconsin with 30 years as one of the potential penalties, that does not mean that if a person pleads guilty, the victim of the armed robbery can be the judge to impose the penalty.
Lewis F. Powell, Jr.: But before you conclude, if this Court should decide that the School Board was an appropriate body to make this decisions, would you still argue that there was a denial of procedural due process in this case?
Robert H. Friebert: Yes, the Wisconsin Supreme Court said they were appropriate in the first instance.
Lewis F. Powell, Jr.: Well, let us say unbiased, suppose we assume the Board was unbiased and --
Robert H. Friebert: I do not think Mr. Justice Powell, the Court could say on this record that they were unbiased.
Lewis F. Powell, Jr.: That is not my question, I said, let us assume we disagree with you and conclude that the Board was not unbiased and was a proper agency to make the decision it made, would you still say there had been a denial of procedural due process?
Robert H. Friebert: In other words, the bias issue obviously --
Lewis F. Powell, Jr.: No, are you satisfied that your clients had an opportunity to have a full hearing before this agency which you regard as biased?
Robert H. Friebert: Oh no, we did not.
Lewis F. Powell, Jr.: In what respect did they not? Did not the Board for each one of them individually, a separate opportunity for a hearing?
Robert H. Friebert: We were not allowed an opportunity to prevent -- present full medicating circumstances.
Lewis F. Powell, Jr.: In each of the Boards offers to have an individual hearing with counsel for each teacher?
Robert H. Friebert: No, but the hearings were all put together and as one massive hearing and substantial evidence wanted -- was presented or attempted to be presented for mitigation. They refused to hear it so we were denied a fair hearing in the first instance, I might add we were denied proper notice also because the notice did not say that the Board was considering infringement of the contract for the 74-75 School year. They only talked about the present contract. So no, we were not provided the proper hearing. In fact there is some -- it would be the same thing as our Durkin case in that respect where the Wisconsin Supreme Court said if there is an improper hearing in a disciplinary proceeding involving a strike, they can send it back for further proceedings. The problem is that our mitigating factors in this instance attack the very Board who was to sit as our Judges.
Warren E. Burger: Thank you Mr. Friebert, Mr. Walker, do you have an ending further?
Jack D. Walker: Just one factual matter Mr. Chief Justice at Appendix page 45 which is the collective bargaining agreement, there is what we think is a No-Strike Clause. It says there shall be no suspension of work or interference with the operations during the term of this agreement and that document is incorporated by reference in the each individual contract, a sample of which appears that at Appendix page 60.
Warren E. Burger: Thank you gentlemen. The case is submitted.