EDDIE RAY CRUMP v. BOARD OF EDUCATION OF THE HICKORY ADMINISTRATIVE SCHOOL UNIT, WILLIAM PITTS, LOIS YOUNG, BARBARA A. GARLITZ, RUEBELLE A. NEWTON, C. JOHN WATTS III, AND LARRY O. ISENHOUR
No. 171A89
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 13 June 1990
326 N.C. 603 (1990)
Schools § 13.2 (NCI3d) — teacher dismissal — bias by single school board member — violation of due process A single school board member‘s bias against the teacher at a teacher dismissal hearing taints the entire board‘s decision-making process and denies the teacher due process regardless of whether the bias affected the correctness of the board‘s decision.
Am Jur 2d, Schools §§ 192, 193.
- Appeal and Error § 566 (NCI4th) — teacher dismissal — direct review proceeding — law of the case — issue preclusion — inapplicability to bias claim
Plaintiff teacher‘s civil rights claim for damages based on alleged bias of the board of education which dismissed him was not finally decided against him in the direct judicial review of the board‘s decision to terminate him and the subsequent appeal of that judicial review to the Court of Appeals and was thus not barred by either the law of the case or the doctrine of issue preclusion where the trial court, upon motion by the board, severed plaintiff‘s two separate claims and conducted its direct judicial review of the board‘s dismissal decision separately from the trial of the civil rights action; although an assignment of error by plaintiff in the Court of Appeals recited language in the superior court judgment finding that the board‘s decision was not biased, plaintiff did not raise or argue that specific point before the Court of Appeals; in the direct review proceeding, the parties, superior court and Court of Appeals all focused on the question of whether the board‘s findings and conclusions in its dismissal decision were supported by substantial evidence in the whole record; no evidence of the type of “concealed” bias, the type of bias leading to the civil rights claim, was in the record made by the board, and plaintiff was given no opportunity to present such evidence on direct judicial review; and the bias claim
thus could not have been reached by the superior court in its direct judicial review of the board‘s action dismissing plaintiff. Am Jur 2d, Schools §§ 192, 193.
- Schools § 13.2 (NCI3d) — teacher dismissal hearing — property and liberty interests — right to due process
A career teacher charged with immorality and insubordination was entitled to a dismissal hearing which complied with principles of due process since the teacher had a cognizable property interest in his continued employment and a constitutionally protected liberty interest was implicated.
Am Jur 2d, Schools §§ 192, 193.
- Constitutional Law § 17 (NCI3d) — civil rights action — concurrent jurisdiction of state and federal courts
State courts have concurrent jurisdiction with federal courts over civil rights actions brought under
42 U.S.C. § 1983 .Am Jur 2d, Civil Rights §§ 99, 263-269.
- Schools § 13.2 (NCI3d) — teacher dismissal — bias by one board member — denial of due process
If a school board member had made a fixed decision prior to a teacher dismissal hearing to vote against the teacher based on factual information obtained outside the hearing process, that board member was biased against the teacher, and such member‘s participation in the teacher‘s dismissal hearing would deny the teacher procedural due process no matter what outcome the board reached at the hearing.
Am Jur 2d, Schools §§ 192, 193.
- Schools § 13.2 (NCI3d) — teacher dismissal — pre-hearing knowledge of allegations not biased
School board members with pre-hearing knowledge regarding the allegations against a teacher would neither necessarily nor presumptively be biased against him. However, when performing their quasi-judicial function during a board hearing and any resulting deliberations, school board members must be able to set aside their prior knowledge and preconceptions concerning the matter at issue, and base their considerations solely upon the evidence adduced at the hearing.
Am Jur 2d, Schools §§ 192, 193.
Constitutional Law § 17 (NCI3d); Schools § 13.2 (NCI3d) — teacher dismissal — civil rights action — bias of school board member — sufficient evidence for jury The trial court properly submitted a dismissed teacher‘s
42 U.S.C. § 1983 claim for damages to the jury for its determination as to whether a school board member had in fact been biased against the teacher in the dismissal proceeding where there was substantial evidence that, at the board‘s hearing, one or more board members consciously concealed both prior knowledge of the allegations against the teacher and a fixed predisposition against him.Am Jur 2d, Schools §§ 192, 193.
- Schools § 13.2 (NCI3d) — teacher dismissal hearing — requirement of due process
Whether a school board‘s decision-making process in a teacher dismissal hearing should be termed administrative or quasi-judicial, the board‘s action involving resolution of disputed facts and selection among alternate sanctions was required to afford the teacher, at a minimum, an unbiased hearing in accord with principles of due process.
Am Jur 2d, Schools §§ 192, 193.
- Schools § 13.2 (NCI3d) — teacher dismissal — bias of school board member — hearing result and spread of bias irrelevant to due process question
Neither the result reached at a teacher dismissal hearing nor the spread of one school board member‘s bias to a sufficient number of other members to have determined the result is determinative on the question of whether the school board‘s procedure was fundamentally unfair and thus denied the teacher due process, since one board member‘s fixed bias is sufficient to cause the hearing process to deny due process even though the hearing result itself can be justified.
Am Jur 2d, Schools §§ 192, 193.
- Constitutional Law § 17 (NCI3d); Schools § 13.2 (NCI3d) — civil rights action — teacher dismissal — bias by school board member — due process violation — compensatory damages
Where the jury in a
§ 1983 civil rights action determined from the evidence at trial that one or more school boardmembers were biased against plaintiff teacher at a dismissal hearing, the jury was justified in returning a verdict finding that the school board‘s hearing denied plaintiff due process and awarding plaintiff $78,000 in compensatory damages for the due process violation. Am Jur 2d, Schools §§ 192, 193.
- Constitutional Law § 17 (NCI3d); Schools § 13.2 (NCI3d) — dismissed schoolteacher — injury from due process violation — damages
In order for a dismissed schoolteacher to recover more than nominal damages on his
§ 1983 due process claim, the teacher must have been injured by the due process violation itself, and not merely by distress caused by a deprivation of his constitutionally protected interest in his job.Am Jur 2d, Schools §§ 192, 193.
- Judgments § 3 (NCI3d) — conformity to pleadings and verdict
Where plaintiff sought compensatory damages only from defendant board of education and only punitive damages from the individual defendants, and the jury returned its verdict awarding only compensatory damages, the trial court‘s judgment should have ordered that the damages and costs be recovered from defendant board and not from the other defendants individually.
Am Jur 2d, Pleadings §§ 382, 383; Schools § 211.
Justice MEYER dissenting.
Justice MARTIN dissenting.
Justice WHICHARD dissenting.
APPEAL by the defendants pursuant to
Mitchell, Blackwell, Mitchell & Smith, P.A., by Thomas G. Smith, and Sigmon, Clark and Mackie, P.A., by E. Fielding Clark II, for the defendant-appellants.
George T. Rogister, Jr. and Jonathan A. Blumberg for the North Carolina School Boards Association, amicus curiae.
MITCHELL, Justice.
[1] The issue before us is whether, at a teacher dismissal hearing, a single school board member‘s bias against the teacher taints the entire board‘s decision-making process, denying the teacher due process and entitling him to compensatory damages, regardless of whether the bias affected the correctness of the board‘s decision. We conclude that such bias makes the decision-making process inherently unfair and violates due process.
The facts relevant to the issue presented include the following: On 7 June 1984, the defendant-appellants, the Hickory Board of Education and its individual members, dismissed the plaintiff-appellee, Eddie Ray Crump, from his teaching position at Hickory High School based on findings of immorality and insubordination. Following his dismissal, Crump filed a joint petition and complaint with the Superior Court. His petition pursuant to
Upon the defendants’ motion, the trial court severed the two separate claims brought by Crump, and conducted its direct judicial review of the Board‘s decision to dismiss him separately from the trial of this civil action. Thereafter, on direct review of the Board‘s action, the superior court upheld the Board‘s decision to dismiss Crump. Crump appealed that decision to the Court of Appeals,
The separate civil action presenting Crump‘s due process claim, the sole subject of this appeal, was tried before a jury at the 16 November 1987 session of Superior Court, Catawba County. Crump based his claim of bias and resulting denial of due process on evidence at trial tending to show disparities between the actual pre-hearing knowledge of and involvement with Crump‘s situation by certain Board members, and their disavowals of knowledge of the matter when asked about it at the Board‘s hearing.
At the Board‘s dismissal hearing, Crump‘s attorney, James Fuller, questioned Board members about their ability to be fair and impartial:
Mr. Fuller: . . . I want to be perfectly blunt about it and ask the Board . . . the extent to which any of you have been personally involved, have discussed with people who have knowledge and whether any of you have formed any kind of preconceived notions. I don‘t mean that in a pejorative sense but just as matter of being brutally candid. Has anybody on the Board either because of the publicity, because of what you have heard from [the] administration, from friends, neighbors, from anyone else, whether you have any problem at all being completely fair to Mr. Crump? And again, I don‘t mean fair in the sense of you will try to be fair, but can you honestly say the scales are even now . . . .
Mr. Pitts: That‘s a fair question. I am glad you addressed that right up front because several months ago the Board was aware that some form of hearing was coming down the pike. The administration, the attorney, has not ever revealed anything until we received this letter in the mail yesterday hand delivered of any charges or any statements. Now I can
speak for myself. But the attorney has asked all members of the Board not to discuss any aspect of anything that they may hear. If someone calls them on the phone, they are not to respond in any way. I can speak for myself to say that for me at this point in time the slate is clear. Ms. Newton: The same thing. In fact we have not even been given a name whenever we were told a hearing was coming up. And I have not been approached by anybody. And if mention was made of it, I just said I know nothing. And whatever judgment would be made has to be done on what we hear tonight.
Mr. Isenhour: The same.
Ms. Garlitz: The same. I have had people that made statements to me, and I have not responded in any way. And I did not know until the letter came yesterday what this was about.
Mr. Watts: Frankly, I feel that I can be as objective as anybody on this Board. Obviously when a newspaper that is published on a county-wide basis comes out and indicates that a teacher is being brought up for charges, I read the article because I‘m on the School Board and the teacher happens to be in my system. Other than that, there has been no preliminary information except for this notice we got yesterday afternoon late in the afternoon with the charges. I think I have a fairly good grasp of what we‘re here for and hopefully will be able to give every bit of the evidence full weight.
Ms. Young: I had one call, and I said, “I have no comments.” And I have not said one word anywhere. And when I go, I listen and I vote my convictions.
Subsequent evidence suggested, however, that not all of the Board members had been entirely candid in their answers. During Principal Williamson‘s testimony at the Board‘s hearing, Board member Isenhour asked him, “[a]re you aware of the fact that we had parents who will not let their daughters take driver‘s education because of this situation, that they‘re sending their daughters to the private school?” At the later trial of this civil action, however, Isenhour acknowledged that no evidence before the Board during its hearing tended to show that female students at Hickory High School were taking driver‘s education elsewhere for any reason.
Hal Bolick, a teacher at Hickory High School, testified at trial that several months before the Board‘s hearing, Board Chairman
Roger Henry, a former teacher, testified that in March 1984, prior to the Board‘s hearing, Board member Watts told him that the charges against Crump “didn‘t look good, that they were concerned, and mentioned [Board member] Garlitz and [Chairman] Pitts and [that Crump] . . . needed to resign [and would Henry] do anything about it.” When asked at trial whether he denied that the conversation with Henry had occurred, Watts answered, “I won‘t deny it or confirm it, sir.”
Bruce Crump (no relation to the plaintiff-appellee), another former teacher, testified that in the spring of 1984, prior to the Board‘s hearing, he witnessed Board member Lois Young tell Principal Williamson, “We‘re all together on this Crump thing.” Bruce Crump also testified that no matters involving him were pending with the Board at the time he heard Young make the statement about the “Crump thing.” Neither Young nor Williamson testified at trial.
The plaintiff-appellee Eddie Crump testified that he had a conversation with Board member Young after his dismissal. Crump testified that during their conversation, Young told him that prior to the Board‘s hearing Principal Williamson had promised the Board members that Crump would resign rather than endure a dismissal hearing and thus bring embarrassment upon his wife.
The jury found that the Board had failed to “provide [Crump] a fair hearing before an unbiased hearing body,” and that Crump had suffered resulting actual damages of $78,000, but awarded no punitive damages. The trial court entered judgment accordingly. A divided panel of the Court of Appeals affirmed the trial court‘s judgment.
[2] As a preliminary matter, we address one point raised by the dissents in this case. Although using differing terminology, the dissents argue that Crump‘s bias claim was previously and finally decided against him in the direct judicial review of the Board‘s decision to terminate him and the subsequent appeal of that judicial review to the Court of Appeals. See Crump v. Board of Education, 79 N.C. App. 372, 339 S.E.2d 483, disc. rev. denied, 317 N.C. 333, 346 S.E.2d 137. Thus, the dissents argue that Crump‘s bias claim in this case is barred by either the law of the case or the doctrine of issue preclusion. We disagree.
In response to Crump‘s amended complaint, the Board moved to separate the superior court‘s proceeding on direct judicial review of the Board‘s decision from Crump‘s
In Judge Sitton‘s judgment in the direct judicial review proceeding, he plainly stated that
The court has reviewed the entire record made before the Board and has applied the ‘whole record test’ in reviewing the evidence to determine whether the Board‘s decision is supported by substantial, material, and competent evidence. . . .
After a thorough and careful review of the transcript, exhibits, briefs, and arguments of counsel, the court finds and concludes that the Board‘s findings, inferences, and conclusions; underlying its decision to dismiss Mr. Crump, and the Board‘s decision to terminate and dismiss Eddie Ray Crump, are supported by competent, material, and substantial evidence in view of the entire record as submitted . . . .
The court further finds and concludes that the action [of] the Board to dismiss Crump was not biased, arbitrary or capricious; . . . but instead was based on substantial evidence viewing the record as a whole.
(Emphasis added.)
Crump appealed that judgment to the Court of Appeals, assigning as error that the superior court‘s findings and conclusions were not supported by substantial evidence in the whole record. Although Crump‘s recitation of the judgment‘s wording in his first assignment of error in that appeal included the superior court‘s finding that the Board‘s decision was not biased, Crump did not seek to raise or argue that specific point before the Court of Appeals. Instead, the parties and the Court of Appeals all focused on the same question which had been before the superior court in the direct review proceeding, after that proceeding had been separated from the
The only “bias” the superior court could have searched for during its direct review of the Board‘s action was that which might have facially appeared in the record if the evidence before the Board had not supported its findings of improper conduct by Crump. No evidence of the type of bias leading to Crump‘s
As a final point on this topic, we do agree with Justice Martin, to the extent that he says in his dissent that “[i]n any event where justice and right are concerned, this Court has never allowed manifest injustice to prevail based upon some procedural technicality in a trial or appeal.” (Citation omitted.) We will not allow any such result in this case. The Board argued in the appeal of the superior court‘s direct judicial review proceeding that the direct review proceeding and Crump‘s
II.
The Court of Appeals concluded that in this separate civil action under
A. Due Process
[3] Whenever a government tribunal, be it a court of law or a school board, considers a case in which it may deprive a person of life, liberty or property, it is fundamental to the concept of due process that the deliberative body give that person‘s case fair and open-minded consideration. “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchinson, 349 U.S. 133, 136, 99 L. Ed. 942, 946 (1955). As a career teacher under
Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 777-78 (9th Cir. 1982) (Kennedy, J.) (footnotes omitted); see Roth, 408 U.S. at 572, 33 L. Ed. 2d at 558. With his fundamental rights so implicated, Crump was entitled to a hearing according with principles of due process. “[A] Board of Education conducting a [dismissal] hearing under G.S. 115-142 [now § 115C-325] must provide all essential elements of due process.” Baxter v. Poe, 42 N.C. App. 404, 409, 257 S.E.2d 71, 74, disc. rev. denied, 298 N.C. 293, 259 S.E.2d 298 (1979).
[4] Crump brought his due process claim under
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
While this statute has been the subject of many federal opinions and scholarly articles, North Carolina appellate courts have addressed the statute only infrequently. It is clear, however, that
We recognize that due process is a somewhat fluid concept, and that determining what process is “due” at a school board hearing is very different from evaluating the procedural protections required in a court of law. “Determining what process is due in a given setting requires the Court to take into account the individual‘s stake in the decision at issue as well as the State‘s interest in a particular procedure for making it.” Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 494, 49 L. Ed. 2d 1, 10 (1976) (citing cases).
B. Bias
An unbiased, impartial decision-maker is essential to due process. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 271, 25 L. Ed. 2d 287, 301 (1970) (citing cases); Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 779 (9th Cir. 1982); Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). As discussed below, this case turns on the question of what evidence will suffice to support a jury‘s determination, as here, that a decision-maker is biased, when the decision-maker is a group of persons.
While the word “bias” has many connotations in general usage, the word has few specific denotations in legal terminology. Bias has been defined as “a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction,” Black‘s Law Dictionary 147 (5th ed. 1979), or as “a sort of emotion constituting untrustworthy partiality,” 10 C.J.S. Bias (1955 & Supp. 1989) (footnote omitted). “Some sort of commitment is necessary for disqualification [due to bias], even though it is less than an irrevocable one.” 3 Davis, Administrative Law Treatise 2d § 19:4 at 385 (1980). Bias can refer to preconceptions about facts, policy or law; a person, group or object; or a personal interest in the outcome of some determination. See id. ch. 19. Crump‘s complaint commencing the civil action now before us on appeal alleged that one or more Board members came into his hearing having already decided to vote against him, based on “factual” information obtained outside the hearing process. This type bias can be labeled a “prejudgment of adjudicative facts.” Id. § 19:4.
The trial court in this case gave the jury a lengthy explanation of the heavy burden a plaintiff must bear to succeed in proving
To prove impermissible bias of the hearing body the plaintiff must show or prove by its greater weight more than the fact that a board member or members had some knowledge of some fact or facts concerning a charge or charges against a teacher. Mere familiarity with a fact or facts or charge or charges does not automatically disqualify a board member as a decision maker.
. . . .
I instruct you that a board member‘s obligation is to be able to put aside anything read or heard prior to a hearing and base a decision solely upon the sworn testimony and evidence during a hearing.
To find impermissible bias you, the jury, must find by the greater weight of the evidence that the mind of a board member was predetermined and was fixed and not susceptible to change prior to the deliberating process of the hearing board, and that the decision was not based solely upon evidence during the hearing.
[5] The quoted instructions given by the trial court concerning decision-maker bias were free of error. If a Board member had made a fixed decision, prior to the Board‘s hearing, to vote against Crump, that member was biased against him. One such Board member‘s participation in Crump‘s dismissal hearing would cause that hearing to deny Crump procedural due process, no matter what outcome the Board reached at the hearing.
C. School Boards
[6] Distinguishing a Board member‘s disqualifying bias against Crump from permissible pre-hearing knowledge about Crump‘s case is essential to our analysis. Members of a school board are expected to be knowledgeable about school-related activities in their district. Board members will sometimes have discussed certain issues that later become the subject of board deliberations; such knowledge and discussions are inevitable aspects of their multi-faceted roles as administrators, investigators and adjudicators. However, when performing their quasi-judicial function during a board hearing and
The key component of due process, when a decisionmaker is acquainted with the facts, is the assurance of a central fairness at the hearing . . . .
. . . .
. . . Members of a school board in smaller communities may well have some knowledge of the facts and individuals involved in incidents which they must evaluate. Their obligation is to act impartially and in a fair manner.
Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 779-80 (9th Cir. 1982) (citations omitted).
In the present case, a Board member with pre-hearing knowledge regarding the allegations against Crump would neither necessarily nor presumptively be biased against him. “The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing.” Withrow v. Larkin, 421 U.S. 35, 55, 43 L. Ed. 2d 712, 728 (1975), quoted in 3 Davis, Administrative Law Treatise 2d § 19:4 at 384 (1980). Indeed, because of their multi-faceted roles as administrators, investigators and adjudicators, school boards are vested with a presumption that their actions are correct, and the burden is on a contestant to prove otherwise.
The North Carolina legislature has empowered local school boards to hear and decide teacher dismissal cases in this state. There is no other hearing panel designated in the law of North Carolina to hear teacher dismissal cases. The court instructs you that the law presumes that the school board members act with honesty and integrity. The law further presumes that actions taken by a school board of education [are] legally correct and that a board acts fairly, impartially and in good faith.
The burden is on the plaintiff to overcome this presumption by proving by the greater weight of the evidence that the board was impermissibly biased in dismissing the plaintiff.
III.
[7] If the Board in this case was biased, it was unable to provide Crump with the fair and open-minded consideration that due process demanded his case receive. “A public employee facing an administrative hearing is entitled to an impartial decision maker. . . . To make out a due process claim based on this theory, an employee must show that the decision-making board or individual possesses a disqualifying personal bias.” Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924 (citing Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 49 L. Ed. 2d 1 (1976), and Salisbury v. Housing Authority of City of Newport, 615 F.Supp. 1433, 1439-41 (E.D. Ky. 1985)), cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). Here, there was substantial evidence that, at the Board‘s hearing, one or more Board members consciously concealed both prior knowledge of the allegations against Crump and a fixed predisposition against him. Such evidence having been presented, the trial court properly submitted this case to the jury for its determination as to whether a Board member had in fact been biased against Crump.
A. One Member Bias
The decision of our Court of Appeals is in accord with the view of the United States Court of Appeals for the Third Circuit, which has stated that “[l]itigants are entitled to an impartial tribunal whether it consists of one [person] or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured.” Berkshire Employees Ass‘n, Etc. v. National Labor R. Bd., 121 F.2d 235, 239 (3d Cir. 1941), quoted in Crump v. Board of Education, 93 N.C. App. 168, 185, 378 S.E.2d 32, 42 (1989). Berkshire involved an allegation by a knitting mill‘s employees’ association that one member of the National Labor Relations Board had “endeavor[ed] to assist in a boycott on Berkshire‘s goods. This was at a time before he was called upon, in his capacity as a Board member, to pass upon the questions concerning unfair labor practices by Berkshire.” Berkshire, 121 F.2d at 238-39. The court in Berkshire was addressing a situation analogous to the case at bar. We agree with that court‘s observations that:
It is perfectly clear that the exercise of its duties by an administrative body must necessarily proceed in a different fashion from the orthodox method of administering justice in courts. This administrative body must at times be successively or simultaneously investigator, complainant, prosecutor, trier of facts, declarer of law and administrator, all in the same matter. . . . The [courts] must be exceedingly careful not to jump to hasty conclusions that because the administrative process differs in many ways from the judicial process it lacks due process of law.
Nevertheless, if the administration of public affairs by administrative tribunals is to find its place within the present framework of our government it is essential that it proceed, on what may be termed its judicial side, without too violent a departure from what many generations of English-speaking people have come to regard as essential to fair play. One of these essentials is the resolution of contested questions by an impartial and disinterested tribunal. These adjectives are not absolute but relative as every thoughtful person knows. Decisions affecting human beings, made by human beings, necessarily are colored by the sum total of the thoughts and emotions of those responsible for the decision. The judicial process, or any other human process, cannot operate in a vacuum. The most we can hope for is that persons charged with responsibility for decisions affecting other people‘s lives and property will be as objective as humanly possible. . . . If the circumstances alleged are proved [then the plaintiff] did not have a hearing before an impartial tribunal, but one in which one member of the body which made exceedingly important findings of fact had already thrown his weight on the other side. . . .
The Board argues that at worst the evidence only shows that one member of the body making the adjudication was not in a position to judge impartially. We deem this answer insufficient. Litigants are entitled to an impartial tribunal whether it consists of one [person] or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured.
A critical component of any quasi-judicial hearing and decision-making by a deliberative body is the give and take which occurs
B. The Accardi Decisions
One author has suggested that in its Accardi decisions, the Supreme Court of the United States has implicitly rejected a “one member bias” rule. 3 Davis, Administrative Law Treatise 2d § 19:4 at 387-88 (1980) (citing Accardi v. Shaughnessy, 347 U.S. 260, 98 L. Ed. 2d 681 (1954) (Accardi I), and its appeal on remand, Shaughnessy v. Accardi, 349 U.S. 280, 99 L. Ed. 2d 1074 (1955) (Accardi II)). We disagree with this interpretation of the Accardi decisions.
In Accardi II, an immigrant facing deportation alleged that the Board of Immigration Appeals had refused to suspend his deportation because the Board‘s decision was controlled by the Attorney General. Accardi II, 349 U.S at 281, 99 L. Ed. at 1076. The members of the Board were appointed by the Attorney General and served at his pleasure. Accardi I, 347 U.S. at 266, 98 L. Ed. at 686. Accardi claimed that the Attorney General had provided Board members with a list naming him as among several “unsavory characters” whom the Attorney General sought to deport. Accardi II, 349 U.S. at 281, 99 L. Ed. at 1076.
The Supreme Court, reversing a divided United States Court of Appeals for the Second Circuit, upheld the Board‘s decision. Noting that Accardi was a target of the Attorney General‘s deportation program — but that there was no such list of unsavory characters — the Supreme Court concluded that the evidence only showed that, at most, two members of the five-member Board knew that the Attorney General was targeting Accardi for deportation. Id. at 283, 99 L. Ed. at 1077. Although not discussed by the Supreme Court, we note that one or more Board member‘s mere knowledge that Accardi was being targeted for deportation would not rise
C. Administrative and Judicial Distinctions
There is some disagreement as to whether a school board‘s decision-making process in dismissing a teacher should be considered an “administrative” or a “judicial” function. Several courts, including the Supreme Court of the United States and our own Court of Appeals, have tended to indicate that school board decisions dismissing teachers for various actions may be administrative rather than judicial in nature. Our Court of Appeals has stated that:
The procedures prescribed by G.S. 115-142 [now § 115C-325] for the dismissal of a career teacher are essentially administrative rather than judicial. . . . [T]he Board is not bound by the formal rules of evidence which would ordinarily obtain in a proceeding in a trial court. Nor are the Rules of Civil Procedure applicable. G.S. 1A-1. While a Board of Education conducting a hearing under G.S. 115-142 [now § 115C-325] must provide all essential elements of due process, it is permitted to operate under a more relaxed set of rules than is a court of law. Boards of Education, normally composed in large part of non-lawyers, are vested with “general control and supervision of all matters pertaining to the public schools in their respective administrative units,” G.S. 115-35(b) [now § 115C-36], a responsibility differing greatly from that of a court. The carrying out of such a responsibility requires a wider latitude
in procedure and in the reception of evidence than is allowed a court.
Baxter v. Poe, 42 N.C. App. 404, 409, 257 S.E.2d 71, 74-75, disc. rev. denied, 298 N.C. 293, 259 S.E.2d 298 (1979); see Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 495, 49 L. Ed. 2d 1, 11 (1976). We note, however, that the language quoted from our Court of Appeals in its Baxter decision addressed due process considerations relating to evidentiary issues not present in this case but, nevertheless, recognized that board of education hearings concerning dismissal of career teachers must meet the fundamental requirement of due process. Baxter, 42 N.C. App. at 409-410, 257 S.E.2d at 74-75.
On the other hand, there are decisions imposing greater judicial scrutiny upon administrative or quasi-judicial deliberative bodies.
[A] fair trial by an unbiased and non-partisan trier of the facts is of the essence of the adjudicatory process as well when the judging is done in an administrative proceeding by an administrative functionary as when it is done in a court by a judge. Indeed, if there is any difference, the rigidity of the requirement that the trier be impartial and unconcerned in the result applies more strictly to an administrative adjudication where many of the safeguards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed.
National Labor Relations Board v. Phelps, 136 F.2d 562, 563 (5th Cir. 1943) (footnote omitted), cited in Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir. 1984).
[8] We conclude that, whether termed administrative or quasi-judicial, the Board action in this case, involving resolution of disputed facts and selection among alternate sanctions, was required to afford Crump, at a minimum, an unbiased hearing in accord with principles of due process.
IV.
This case on appeal is made more difficult because the outcome of the Board‘s hearing — Crump‘s dismissal — was upheld in a separate proceeding before the superior court and Court of Appeals in which Crump challenged the Board‘s action on the ground that the evidence at the Board‘s hearing did not support its findings. Crump v. Board
of Education, 79 N.C. App. 372, 339 S.E.2d 483, disc. rev. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). Therefore, the issue of whether the Board‘s findings and conclusions supported its decision to dismiss Crump is not before us; his dismissal is final, and may not be reviewed as a part of this appeal. Instead, we review in this appeal only Crump‘s separate civil action seeking money damages under
A. The Outcome of the Board Hearing
[9] The appellants, the amicus, and one dissent in this Court each make the fundamental error of assuming that the finality of the Board‘s decision to dismiss Crump is determinative on the question of whether the hearing process itself was fundamentally unfair and resulted in injury to him. The appellants argue that the trial court‘s instructions in this separate
[10] Here, damages were assessed solely for the due process violation and resulting injury arising from Crump being forced to endure a hearing before a deliberative body which a Catawba County jury found had contained one or more members who had already decided the case against him. Damages were not assessed for the removal of Crump from his job. The purpose of
B. The Remedy Now Sought
The defendants also argue that Crump‘s relief, if any, must be limited to a remand of this case for a determination of whether a member of the Board was disqualified because of bias, and, if so, for a new hearing by Board members not so disqualified. The defendants and one dissent in this Court seem to think that an incorrect dismissal of Crump was the only possible harm that could have flowed to him from the due process violation found by the jury to have occurred. That view ignores the very real injury to both Crump and our society from allowing him to be forced to defend himself in a hearing which denied him due process, whether he was guilty of the allegations against him or not. “It is fundamental that both unfairness and the appearance of unfairness should be avoided.” American Cyanamid Company v. F.T.C., 363 F.2d 757, 767 (6th Cir. 1966); see State v. Mettrick, 305 N.C. 383, 385, 289 S.E.2d 354, 356 (1982). Damages awardable under a
[11] The defendants and amicus correctly note that in order to recover more than nominal damages on his
V.
Bias is hard to prove. Given the level of pre-commitment by a board member that must be shown to make out a case of bias and a resulting denial of due process, we doubt that our decision in this case will open any floodgates of litigation or unduly prevent boards of education from dismissing bad teachers. Determining what procedure is required by principles of due process in a given situation requires that the cost of the procedure be evaluated in light of the potential harm flowing from that procedure. In this case, the cost of the procedure which we conclude due process required was whatever it would have taken for one or more Board members to candidly answer Crump‘s questions about their pre-hearing knowledge. The injury to Crump from being forced to participate in a hearing that the jury in this case determined was unfair, on the other hand, was valued by the Catawba County jury at $78,000. It should not cost that much to be candid; talk is cheap.
[12] The Court of Appeals affirmed the judgment of the trial court awarding Crump $78,000 in compensatory damages. We note, however, that the trial court‘s judgment in this case indicated that those damages were to be recovered from the “defendants,” but indicated that the “defendant” was to pay the costs. By his complaint, the plaintiff sought compensatory damages only from the defendant Board, and not from the individual defendants. The plaintiff sought only punitive damages from the individual defendants. The jury having returned its verdict awarding only compensatory damages, but no punitive damages, the trial court‘s judgment should have ordered that the damages and costs be recovered only from the defendant Board and not from the other defendants individually. This case is remanded to the Court of Appeals for its further remand to the Superior Court, Catawba County, with instructions that the judgment be modified and amended
Modified and affirmed; remanded with instructions.
Justice MEYER dissenting.
The majority finds it perfectly logical that a teacher rightfully discharged for molesting high school girls who were his students should recover $78,000 from the school board for a lack of due process in the hearing that resulted in his rightful discharge. I do not. First, because the issue—bias of a member of the board that discharged him—was not properly before this Court, it having been disposed of in the discharge case; and, second, because the new rule adopted here by the majority—“one member biased“—is fundamentally unsound. This new rule produces a bizarre result in this case, and it will continue to produce bizarre results in the future.
The findings of fact of the school board in this matter included the following:
4. By letter dated June 4, 1984, the Superintendent submitted to the Board his recommendation for the dismissal of Eddie Ray Crump as a teacher in the Hickory Administrative School Unit on the following grounds: immorality, neglect of duty, failure to fulfill the duties and responsibilities imposed upon teachers by the General Statutes of North Carolina, and insubordination.
5. On or about April 6, 1981, while instructing Elizabeth Davis, a female high school student over whom he had authority for the purpose of driver education instruction, Eddie Ray Crump asked her questions, to wit: Do you play the field? Are you getting a new bathingsuit [sic] this summer or are you going to go skinny dipping? On the same occasion, Eddie Ray Crump used the word “crotch” and pointed to her private parts and touched her unnecessarily and intentionally on the top of her thigh and played with her hair. As a result of these actions, the student became scared of the teacher, Eddie Ray Crump.
6. As a result of the incident on April 6, 1981, a complaint was filed with the Principal of the High School, and Elizabeth
Davis was removed from Eddie Ray Crump‘s instruction and placed with another driver education instructor. 7. On April 9, 1981, as a result of the incident with Elizabeth Davis on April 6, 1981, Eddie Ray Crump was instructed in writing by the Principal of the High School that “there shall be a third person in the car during the road work phase of the driver education of female students” and the “failure to cooperate with these instructions could be interpreted as insubordination.”
8. On April 2, 1982, the suggestion was made to Eddie Ray Crump by the Principal of the High School on his 1981-82 Teacher‘s Performance Appraisal Instrument that he “must make an effort to follow established rules and guidelines.”
9. During the summer of 1982, while instructing Ursula “Hope” Bolick, a female high school student in driver education, the teacher, Eddie Ray Crump, grabbed her leg unnecessarily. The incident occurred while the two were in the driver education vehicle alone, in contravention of the Principal‘s instructions to the teacher. The teacher also drove with Ursula Bolick alone during driver training on two other occasions.
10. In the fall of 1983, while instructing Donna Bumgardner Yoder, who was a female student at Hickory High School, the teacher, Eddie Ray Crump, on two occasions reached across the seat to adjust a yellow cushion behind her back and accidentally touched her neck. The teacher also, during driver training, called her “Honey,” although the Board found this not offensive under the circumstances.
11. During the fall of 1983, while instructing Nina Winkler, a female high school student in driver education, Eddie Ray Crump intentionally and unnecessarily put his hand under her right breast two or three times, touching her breast. As a result of this action on the part of the teacher, the student became scared to go back in the car with Mr. Crump and has not returned to driver education since the occurrence. The teacher, Eddie Ray Crump, also used the words “Goddamn” and “damn” during the instruction of the student.
12. On one or more occasions, Eddie Ray Crump instructed the following female students during the times specified, in the road work phase of their driver education while no third
person was in the vehicle. These acts were in disobedience of the Principal‘s instructions, were knowingly and wilfully done and were admitted by the teacher, Eddie Ray Crump.
- Ursula “Hope” Bolick in the summer of 1982,
- Sheree Raker in the fall of 1983.
Based on these findings, the school board made, inter alia, the following pertinent conclusions of law:
7. The behavior of the teacher, Eddie Ray Crump, in touching Nina Winkler‘s breast on two or three occasions; in unnecessarily and intentionally grabbing Ursula Bolick‘s leg; in asking Elizabeth Davis personal questions which had sexual overtones or innuendoes, referring to her “crotch,” touching the top of her thigh and playing with her hair, are offensive to the morals of the community, a bad example to the youth whose ideals a teacher is supposed to foster and elevate, and constitute immorality under the provisions of
N.C. Gen. Stat. § 115C-325(e)(1)(b) .8. The actions of Eddie Ray Crump in providing instruction to two female students in the road work phase of their driver education vehicle while no third person was in the vehicle has been admitted by the teacher and was done in disregard of the express written directions of his Principal. This was a wilful refusal by the teacher, Eddie Ray Crump, to obey the reasonable directions of his Principal and constitute insubordination under the provisions of
N.C. Gen. Stat. § 115C-325(e)(1)(c) .
Based, inter alia, upon these findings and conclusions, the school board discharged Mr. Crump as a high school teacher.
As the majority recognizes, the complaint filed in this action by Mr. Crump was such that alleged within one pleading were two actions. The two causes of action were pending simultaneously, the first being an appeal of an administrative hearing which resulted in his discharge from employment, and the other being a
Mr. Crump argued in the prior discharge case that the school board was biased. In his petition for judicial review of his discharge, he alleged, inter alia, “that the action of the Board of Education in dismissing the plaintiff was biased.” Judge Claude Sitton directly addressed that issue in his judgment in the discharge case. The order states: “The court further finds and concludes that the action of the Board to dismiss Crump was not biased . . . but instead was based on substantial evidence viewing the record as a whole.” Thus, Judge Sitton‘s order directly addressed and disposed of Mr. Crump‘s allegation of bias.
Mr. Crump excepted to this particular finding and conclusion. In his entry of appeal filed with the Court of Appeals, Mr. Crump assigned as the first error that there was not substantial evidence in the whole record to support “the Superior Court‘s Findings and Conclusions that the findings, inferences and conclusions of the Board of Education . . . are not biased.” Thus, this issue was before the Court of Appeals in Crump I.
As it turned out, the plaintiff neglected to brief this assignment. Assignments of error not briefed are deemed abandoned on appeal.
The Court of Appeals affirmed the judgment of the trial court, and we denied a petition for a writ of certiorari to review that decision. Thus, the courts of North Carolina have determined, with finality, as the majority concedes, that the plaintiff was rightly discharged. It is also apparent that the issue of school board bias has been decided and disposed of conclusively.
In the
The failure to recognize the procedural bar has led the majority to the strange position of allowing Mr. Crump to recover $78,000 in damages for a due process violation occurring in the hearing that it acknowledges resulted in his rightful discharge, uninfluenced by board member bias. A teacher who has been found to be guilty of the charges made against him, which charges were serious enough to justify dismissal, and whose discharge has been judicially affirmed on appeal, now reaps the benefits of a $78,000 jury verdict.
How the majority can conclude that there have been damages to Mr. Crump sufficient to support a $78,000 jury verdict mystifies me. Deprivation of Mr. Crump‘s interest in his continued employment, and such reputation as was inseparably intertwined with his interest in continued employment, formed the sole basis for his allegations of a due process violation. But there is no dispute that the board properly discharged Mr. Crump upon substantial evidence in the record and without bias. Where the deprivation of an interest is proper, there can be no allowable damages arising from that deprivation, for no damages in fact can be caused by a proper deprivation. See, e.g., Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 286, 50 L. Ed. 2d 471, 483 (1977) (“it [is] necessary to . . . distinguish[] between a result caused by a constitutional violation and one not so caused“).
Without doubt, if the procedure used to discharge a career teacher violates due process, then a discharge decision caused by the invalid procedure would itself be invalid. Conversely, if a discharge is finally determined on appeal to be valid, then it must follow that the process underlying that decision caused no harm. The majority opinion today stands for the deviate proposition that a procedure impermissibly deprived plaintiff of protected interests valued at $78,000 but that ultimate deprivation of those same interests by that same invalid procedure was proper, as finally determined on appeal. This position violates all standards of legal reason.
In a situation where only one board member is biased and does not reveal his bias to plaintiff at the hearing, the other board members may be as ignorant of that member‘s bias as is plaintiff. It is not fair to subject these innocent board members to individual liability on a monetary judgment, much less the damage to their individual reputations, based upon the unrevealed, personal opinions of a fellow member. In a due process case such as the case before us, where the controlling principle is fundamental fairness, it is ironic that innocent, volunteer, uncompensated public servants performing a civic duty can be subjected to group liability and public embarrassment or humiliation for the bias of one of their number. Under the majority opinion, this financial obligation may be to a teacher who was guilty of the serious charges made against him and who would have been dismissed even without the participation of the biased member in the decision-making process. Thus, under the trial court‘s interpretation of the law, the individual members of the board may be exposed to joint and several liability without total, or even majority, guilt. That concept is fundamentally unfair and could have a marked chilling effect on the participation of citizens on these elected, uncompensated boards.
The “one-member bias” rule of the majority could, and no doubt will, adversely affect the willingness of boards of education to dismiss bad teachers. Every citizen who serves on a local board of education faces a dilemma. Every board member doing his or her job will surely know about teacher misconduct, particularly in the especially egregious cases. He or she knows that he will be called upon to decide dismissal cases, as he is a member of the only entity empowered to dismiss teachers. Yet, by doing his or her duty, the board member becomes subject to the threat of lawsuits and individual liability for monetary awards.
Furthermore, the majority rule creates a disincentive to board action against a bad teacher. A teacher whose conduct is unquestionably harmful to children may escape discharge or even discipline for his misconduct out of fear of subsequent bias claims. No school board member can take comfort in the fact that a jury might agree with him that he made the right decision when he chose to fire the teacher. The majority rule prevents the board from presenting the evidence that the board member heard to the jury. At the very best, the majority‘s open invitation for rightfully discharged teachers to bring bias claims against school boards will place a financial burden on school boards, consuming significant public resources in defending such cases even when the school boards prevail.
In adopting the one-member bias rule, the majority relies upon the United States Third Circuit Court case of Berkshire Employees Ass‘n v. NLRB, 121 F.2d 235 (3rd Cir. 1941). Assuming, without conceding, that Berkshire was correctly decided, it is easily distinguishable from the case at bar. The relief afforded in Berkshire was simply a new hearing. Ironically, this hearing was to be conducted by the remaining commission members who had previously heard the case and were theoretically subject to the tainting influence of the biased board member. The same is true of each of the three cases relied upon by the majority panel of the Court of Appeals in reaching its decision on this same issue.
In a case such as Berkshire where plaintiff is only seeking the remedy of a new hearing, a one-member bias rule might be appropriate. In such an instance, the finding of guilt or innocence of the underlying charges is irrelevant—the new hearing will determine that issue. Where, as here, monetary damage is the subject of the action brought by a rightfully discharged teacher, a more restrictive rule is called for. The permanent relief of money damages should be determined only after resolving the difficult issue of whether there was bias and, if so, determining whether that bias
The commonly held notion that juries will generally reach a proper result cannot be relied upon in this type of case. The jury is not allowed to hear the evidence considered by the board against the person charged, it may not consider whether the dismissal was justified, nor may it even hear the board‘s findings of fact and conclusions to aid it in determining whether the discharge was based upon adequate findings or upon the board‘s bias.
I cannot presume that the members of a school board were incapable of fairly deciding this solely by virtue of their association with a board member who was allegedly biased. It is completely unnecessary to do so in order to assure that justice is done. We do not even presume bias on the part of jurors in serious criminal cases. The United States Supreme Court has held that, when the facts of a particular case give rise to a risk of juror bias, the juror is not presumed to be biased, and the defendant is given an opportunity at a hearing to establish actual bias of the juror. Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78 (1982).
Solid authority from a number of other states holds that the presence and vote of a biased member does not invalidate a result if the required majority exists without reference to the disqualified vote. The general rule applied in these cases has been stated as follows:
It has generally been held that the vote of a council or board member who is disqualified because of interest or bias in regard to the subject matter being considered may not be counted in determining the necessary majority for valid action. . . . It is also the rule that where the required majority exists without the vote of the disqualified member, his presence and vote will not invalidate the result . . . .
Anderson v. City of Parsons, 209 Kan. 337, 342, 496 P.2d 1333, 1337 (1972); accord Vanelli v. Reynolds School Dist., 667 F.2d 773, 780 n.13 (9th Cir. 1982); Murach v. Planning & Zoning Com‘n, 196 Conn. 192, 203, 491 A.2d 1058, 1065-66 (1985) (quoting 56 Am.
I believe that the court should utilize a sequence of shifting burdens to govern bias suits. Through this process, the judicial review of the party‘s discharge and his
Under this sequence of shifting burdens, the court should direct a verdict dismissing the due process claim if (1) the party, as a matter of law, fails to discharge its initial burden of rebutting the board member‘s presumption of honesty and integrity; or (2) the board, as a matter of law, discharges its burden of demonstrating that the bias did not affect the outcome. If the claim survives the directed verdict stage, then the court should instruct the jury in accordance with the above-described sequence of shifting burdens.
Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was . . . a “motivating factor” in the Board‘s decision not to rehire him. Respondent having carried that burden, however, the district court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent‘s reemployment even in the absence of the protected conduct.
Mt. Healthy, 429 U.S. at 287, 50 L. Ed. 2d at 484. The Court ultimately remanded the case to the trial court to determine if the board satisfied its burden.
Relying on Mt. Healthy, a federal claims court in Salisbury v. Housing Authority of Newport, 615 F. Supp. 1433, 1444 (E.D. Ky. 1985), applied the sequence of shifting burdens to a due process claim of bias. See Kendall v. Board of Education of Memphis City, 627 F.2d 1, 6, n.6 (6th Cir. 1980) (shifting burdens applicable to due process claim). The court in Salisbury held that, despite the dismissed employee‘s showing that the tribunal was biased, her due process claim would fail if the housing authority demonstrated that “she would have been terminated if the hearing had been held before an impartial decisionmaker.” Salisbury v. Housing Authority of Newport, 615 F. Supp. at 1444. The court ultimately referred the case to a United States magistrate to act as special master to determine whether the employee was entitled to recover damages.
Mt. Healthy delineated the general rule in favor of such a sequence of shifting burdens, and Salisbury applied the sequence to due process claims of bias. This Court has employed a sequence of shifting burdens in both criminal and civil matters. See State v. Cofield, 324 N.C. 452, 379 S.E.2d 834 (1989); Pickerell v. Trucking Co., 322 N.C. 363, 370, 368 S.E.2d 582, 586 (1988).
I vote to reverse the Court of Appeals.
I respectfully dissent from the majority opinion for the reason that the issue of bias upon which the jury verdict in the
Plaintiff, in his complaint, alleged:
9. Plaintiff complains of and excepts to the order of the Board of Education dismissing him as a teacher and makes the following allegations and assignments of error:
a. That the action of the Board of Education in dismissing plaintiff was biased, arbitrary and capricious, lacking substantial basis in fact and being substantially disproportionate to the offense, thus denying to plaintiff both the protections of the Tenure Act and of the Due Process provision of the US and NC Constitutions.
. . . .
g. That members of the Board of Education were biased on their consideration of the issues, had determined beforehand what action they would take at the hearing, and did not afford plaintiff-petitioner the fair and non-prejudicial hearing to which he was entitled.
The bias issue was clearly presented at the hearing before the Board of Education. The transcript of that hearing discloses:
MR. FULLER: I would appreciate that. Secondly, I was going to say this anyway, but certainly in light of the fact that there has been some, I want to be perfectly blunt about it and ask the board to the extent of which any of you have been personally involved, have discussed with people who have knowledge and whether any of you have formed any kind of preconceived notions. I don‘t mean that in a pejorative sense but just as a matter of being brutally candid. Has anybody on the board either because of the publicity because of what
you have heard from administration, from friends, neighbors, from anyone else, whether you have any problem at all being completely fair to Mr. Crump? And again I don‘t mean fair in the sense of you will try to be fair, but can you honestly say the scales are even now? I follow that a half step by adding particularly when you consider that you have got the individual teacher on the one hand and the chief personnel officer on the other, and yet the constitution requires that he have a fair and impartial tribunal or hearing body. And so I don‘t want to offend anybody— MR. PITTS: That‘s a fair question. I am glad you addressed that right up front because several months ago the board was aware that some form of hearing was coming down the pike. The administration, the attorney, has not ever revealed anything until we received this letter in the mail yesterday hand delivered of any charges or any statements. Now, I can speak for myself. But the attorney has asked all members of the board not to discuss any aspect of anything that they may hear.
If someone calls them on the phone, they are not to respond in any way. I can speak for myself to say that for me at this point in time the slate is clear. And I will ask Mrs. Newton the same question.
MRS. NEWTON: The same thing. In fact we have not even been given a name whenever we were told a hearing was coming up. And I have not been approached by anybody. And if mention was made of it, I just said I know nothing. And whatever judgment would be made has to be done on what we hear tonight.
MR. ISENHOUR: The same.
MR. PITTS: Mrs. Garlitz.
MRS. GARLITZ: The same. I have had people that made statements to me, and I have not responded in any way. And I did not know until the letter came yesterday what this was about.
MR. PITTS: Mr. Watts.
MR. WATTS: Frankly I feel that I can be as objective as anybody on this board. Obviously when a newspaper that
is published on a county-wide basis comes out and indicates that a teacher is being brought up for charges, I read the article because I‘m on the school board and the teacher happens to be in my system. Other than that, there has been no preliminary information except for this notice we got yesterday afternoon late in the afternoon with the charges. I think I have a fairly good grasp of what we‘re here for and hopefully will be able to give every bit of the evidence full weight.
MR. PITTS: Mrs. Young.
MRS. YOUNG: I had one call, and I said, “I have no comments.” And I have not said one word anywhere. And when I go, I listen and I vote my convictions.
The decision of the Board of Education contained the following conclusion:
6. All procedural steps required under
NC Gen Stat § 115C-325 have been properly followed, and all due process rights required thereunder have been accorded to Eddie Ray Crump.
The defendants in their answer and motion for judgment on the pleadings make the following allegation:
2. The issues raised by the Plaintiff involve alleged bias or prejudgment of the issues involved by the Board and its members.
Upon the hearing in the superior court in November 1984, judgment was entered containing the following:
The court further finds and concludes that the action or [sic] the Board to dismiss Crump was not biased, arbitrary or capricious; was not substantially disproportionate to the offenses proved; but instead was based on substantial evidence viewing the record as a whole.
To this judgment the plaintiff made two assignments of error. The first assignment contained two arguments: that the court erred in concluding that the Board‘s findings were supported by substantial evidence and, secondly, that the court erred in concluding that the Board‘s order was not biased and capricious.
The opinion of the Court of Appeals, 18 February 1986, only discusses the plaintiff‘s contention that the Board‘s findings and conclusions were not supported by substantial evidence in the whole record. The Court of Appeals made no decision with respect to the plaintiff‘s other contention that the Board of Education was biased. This Court denied plaintiff‘s petition for discretionary review of the Court of Appeals’ decision.
Plaintiff, by his failure to bring forward in his brief before the Court of Appeals the issue of bias on the part of the Board, has abandoned this issue, and the same has been determined against him by the judgment of the superior court. “Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party‘s brief, are deemed abandoned.”
Turning now to the case before us, the Court of Appeals in its opinion apparently overlooked the fact that the plaintiff had brought forward an assignment of error in the previous appeal on this case on the issue of bias on the part of the Board, but abandoned that issue by failing to bring the issue forward and argue it in his brief before the Court of Appeals. I find that the question of whether the issue of bias should have been submitted to the jury is well within the issue raised by the dissent in the Court of Appeals. The whole question before that court was the appropriateness of the submission of that issue and the correctness of the trial judge‘s instructions thereto. In any event where justice and right are concerned, this Court has never allowed manifest injustice to prevail based upon some procedural technicality in a trial or appeal. See State v. Black, 308 N.C. 736, 744, 303 S.E.2d 804, 809 (1983) (Martin, J. concurring). It is clear in this case, in my opinion, that the issue of bias has been resolved on the merits against the plaintiff and that this decision is the law of this case and is binding upon this Court in the subsequent appeal of the same issue in plaintiff‘s
Upon this theory, I conclude that it is inappropriate for this Court to decide the substantive legal issue that it has undertaken to do in the majority opinion. I would reverse the decision of the Court of Appeals upon the basis that the bias issue has already been determined on the merits against the plaintiff in this case and that he may not relitigate the same in this
I concur, essentially, in Justice Martin‘s dissenting opinion and in the “issue preclusion” portion of Justice Meyer‘s dissenting opinion. I write separately because I would rely upon somewhat different reasoning and authorities.
A single, identical issue arising from the same circumstances has been decided twice—once by a judge, and once by a jury—contradictorily. As both dissents and the majority recognize, plaintiff twice alleged in his 9 July 1984 complaint and petition for judicial review of the Board hearing that the Board‘s consideration of his case and its action dismissing him were affected by bias:
[T]he action of the Board of Education in dismissing plaintiff was biased, arbitrary and capricious, lacking substantial basis in fact and being substantially disproportionate to the offense, thus denying to plaintiff both the protections of the Tenure Act and of the Due Process provision of the U.S. and N.C. Constitutions. . . .
[M]embers of the Board of Education were biased on their consideration of the issues, had determined beforehand what action they would take at the hearing, and did not afford plaintiff-petitioner the fair and non-prejudicial hearing to which he was entitled.
An amended complaint and petition for judicial review, filed 14 August 1984, reiterated these allegations.
The record includes defendants’ 4 September 1984 motion to separate plaintiff‘s appeal of the Board‘s administrative action from his complaint alleging violations of his constitutional rights. Among the reasons cited by defendants in support of separation was that proceeding with both actions concurrently “would be . . . prejudicial in that a determination of the appeal will decide the issues raised in the civil action. A prior determination of the appeal is necessary to a proper disposition of the civil action.” There is no indication in the record of the trial court‘s ruling on this motion, but the Court of Appeals, the majority, and one dissent all note a subsequent, de facto severance. See Crump v. Board of Education, 93 N.C. App. 168, 177, 378 S.E.2d 32, 37 (1989).
The only trial court ruling of record is a judgment filed 29 November 1984 in which the trial court indicated that it had applied
Plaintiff excepted separately to each of these findings and conclusions. His first assignment of error cited these two exceptions and stated:
The Superior Court‘s Findings and Conclusions that the findings, inferences and conclusions of the Board of Education are supported by substantial evidence and are not biased and capricious or substantially disproportionate to the offenses proved on the grounds that there is not substantial evidence in the whole record to support these Findings and Conclusions. (Emphasis added.)
Despite the opacity of its syntax, this assignment of error clearly includes the issue of bias within its statement of the issue whether substantial evidence underlay the Board‘s action. Nevertheless, in his brief to the Court of Appeals plaintiff did not mention bias at all, but rested his argument chiefly upon the trial court‘s failure to apply the proper standard of review to the evidence. Defendants’ brief denied the inference that plaintiff had been “railroaded,” but made no other allusion to the issue of bias. Accordingly, the opinion of the Court of Appeals did not address the issue of Board bias. See Crump v. Board of Education, 79 N.C. App. 372, 339 S.E.2d 483, disc. rev. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).
Plaintiff‘s
Of the two issues addressed by the majority, in my opinion only one is necessary to the disposition of this case: whether plaintiff‘s separate
The issue of Board bias was clearly raised by allegations in plaintiff‘s original and amended complaints and denied in defendants’ answer concurrent with their motion to separate plaintiff‘s civil action from his administrative appeal. The issue of bias was also one basis articulated in the trial court‘s finding and conclusion that the Board‘s action had been based on substantial evidence, viewing the record as a whole. The record included a voir dire of the Board members at the hearing, in which plaintiff‘s attorney specifically examined each member for foreknowledge of the charges brought against plaintiff and for any resulting bias. This evidence indicates the issue of bias was indeed pleaded, debated and determined, or “litigated.” See Black‘s Law Dictionary 841 (5th ed. 1979).
The issue of bias was not merely material and relevant to the trial court‘s disposition of the action, but it was essential to that disposition insofar as the issue was inseparable from the court‘s
The plain words of the judgment aside, it is unimaginable that the trial court, knowing from plaintiff‘s complaint that the Board may have been biased against him, could have considered such bias so separable from the Board‘s assessment of the evidence before it as to have had no effect upon that assessment. The court had no choice but to consider the question of bias as integral to its appraisal of the substantiality of the evidence in the whole record. Despite the fact that the same trial judge presided over plaintiff‘s administrative appeal, apparently allowed separation of his actions, and presided over plaintiff‘s
In addressing the question whether “the issue of bias was res judicata at the time of trial,” the Court of Appeals concluded that there was no such bar because of the separation of plaintiff‘s actions: “None of the evidence . . . presented at trial to support his charge of bias existed in the record reviewed by the courts.” Crump, 93 N.C. App. at 177-78, 378 S.E.2d at 37. This may have been true, but it is not the appropriate test of whether a party is estopped from relitigating an issue that has already been adjudicated. It is incumbent upon a plaintiff to proffer some evidence in support of his case; the judgment will properly go against him if he has failed, by the greater weight of the evidence, to persuade the fact finder that facts supporting bias are more likely than not to exist. See 2 Brandis on North Carolina Evidence §§ 203, 212 (1988).
Moreover, if plaintiff, anticipating the issue of bias to figure only in his
If, given separation of plaintiff‘s actions, the trial court erroneously addressed plaintiff‘s allegations of Board bias, then plaintiff failed to alert the appellate court to such error. Plaintiff did in fact except to the trial court‘s specific findings and conclusions that the Board‘s decision had a rational basis in the evidence and that its action was not biased, arbitrary or capricious. These two exceptions were grouped as plaintiff‘s first assignment of error in his first appeal to the Court of Appeals. As that assignment is phrased, however, the issue of bias is confounded with the question of the substantiality of the evidence. Plaintiff must except and assign error separately to each finding or conclusion that he contends is not supported by the evidence, or he waives his right to challenge the issue on those grounds. Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 684, 340 S.E.2d 755, 759-60 (1986). In not assigning error to the trial court‘s consideration of bias and caprice separate from the court‘s finding substantial evidence to support the Board‘s conclusions, plaintiff waived his opportunity to challenge the trial court‘s conclusions regarding Board bias.
In addition, plaintiff dropped any reference to bias in his brief before the Court of Appeals and stated the issue concerning this first assignment of error incompletely, if more succinctly: “Whether there is substantial evidence in the whole record which would support the termination of career teacher Eddie Ray Crump.” The body of plaintiff‘s brief likewise fails to mention bias, arguing only the question of the substantiality of the evidence, as if bias, had it existed, could have had no effect upon that evidence. As Justice Martin notes in his dissent, the Rules of Appellate Procedure plainly state that “[q]uestions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party‘s brief, are deemed abandoned.”
Given that adjudication of the issue of bias in plaintiff‘s