Paul Zarembka
151 Fordham Drive
Buffalo, New York 14216

Re: Zarembka v. State, 2d Circuit Appeal

Dear Professor Zarembka:

As you are aware, the United States Court of Appeals for the Second Circuit affirmed Judge Curtin's decision dismissing the class action challenge to Article 36 of the Collective Bargaining Agreement for lack of subject matter jurisdiction. I have enclosed a copy. This is a summary decision, which means it has precedential value only in related cases, but does not establish general legal principles.

In my opinion, this decision is the best possible outcome we could have achieved short of an all-out victory, because of the Court's rationale for rejecting your appeal. Specifically, the Court held that the claim was not ripe because a) "the contracting out provision never has been invoked and the court has no way of knowing how the state would implement the provision," and b) we "failed to show any hardship or certainly impending injury." See page *2 of the decision. The Court further held, "If tenure should be impaired in the future, the issue will then arise whether the impairment had been accomplished without due process of law." Id.

In other words, the Court held that no injury could occur to you or similarly situated state university employees unless and until the State actually exercises its rights under Article 36. The Court also held that at such time as implementation of Article 36 occurs (if it occurs) a claim for violation for your rights to due process will be timely. (You will, of course have to prove the elements of due process, namely denial of notice and/or a meaningful opportunity to be heard.) The Court did not explicitly address the age-discrimination component of your claim in its decision.

This conclusion is buttressed by a colloquy between the Court and Ms. Oser, the Assistant Attorney General who argued on behalf of the State. One of the judges specifically asked Ms. Oser to confirm that, if the State attempted to implement Article 36 in the future, and affected employees sued, then the State could not be heard to argue that the taking in question previously occurred, as we argued, upon the ratification of Article 36. Ms. Oser emphatically confirmed the Judge's reading of the situation. Although her comments are not part of the written decision, the Court's understanding of her answer is certainly implicit in the written decision, and the colloquy is audible in the audiotape of the argument which I have provided to you.

Finally, the Court completely avoided the question of whether or not you have a constitutionally protected interest in your tenure. As you and I previously discussed, I believe the Union has argued that the only source of your tenure is the collective bargaining agreement. See pp. 17 and 18 of the Union's Brief on Appeal. The Union has indisputably argued that it, as your designated representative "can waive constitutional and statutory rights of an individual member when collectively negotiating on behalf of all members." Id., at 18. I find these two arguments very troubling when they are put together as they were in the Union's brief.

Although it was clear from the judges' discussions with both Mr. Rosen and Ms. Oser that they believe you and your colleagues have tenure, it is unclear what the source of that tenure is, and the Court explicitly held that your "tenure interest, if constitutionally protected and if impaired, which we do not decide, was not altered by any unilateral action of the state." Decision at p. *2. In light of this language, and the Union's arguments, I don't know what it means for an academic or professional to have "tenure" when he or she is also subject to the contracting-out clause of the collective bargaining agreement.

Thank you for your attention to this matter. I wish you well.

AMR:ap

0:R. Rosen, Esq.