Ex Parte Jackson
Lucy Jackson, a teacher in the Mobile County school system who has attained “continuing service status” (“tenure“) pursuant to
On March 14, 1990, the Board adopted a proposal to cancel Ms. Jackson‘s teaching contract. However, she was not notified of the proposed cancellation until August 1, 1990. On August 20, 1990, at a hearing convened for consideration of the proposal, the Board voted to cancel her contract. After the Alabama State Tenure Commission (“the Commission“) affirmed the decision of the Board, Ms. Jackson sought a writ of mandamus from the Mobile County Circuit Court directing the Commission to reverse its order. The circuit court denied her petition, and Ms. Jackson appealed to the Court of Civil Appeals, which, on the authority of
All parties agree that the disposition of this case turns on the proper application of
“Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June. The employing board of education shall not cancel the contract of any teacher in continuing service status, nor cause notice of nonemployment to be given to any teacher whether in continuing service status or not except by a vote of a majority of its members evidenced by the minute entries of said board made prior to or at the time of any such action.”
(Emphasis added.) More specifically, Ms. Jackson contends that this section required the Board to notify her of its proposed termination by the end of the school term, so as to provide her the opportunity to secure similar employment for the succeeding school year— an opportunity that, she argues, she was effectively denied by the board‘s four-month notification delay.
In Fairfield, this Court held that Ala.Code 1940, tit. 52, § 360, the predecessor of
Ms. Jackson and amicus curiae, the Alabama Education Association (“the AEA“), contend that Fairfield‘s construction of
“No teacher, whether in continuing service status or not, shall be permitted to cancel his or her contract during the school term for which said contract is in effect, nor for a period of 45 days previous to the beginning of such school term, unless such cancellation is mutually agreed upon.... Any teacher canceling his or her contract in any other manner than in this section provided shall be deemed guilty of unprofessional conduct, and the state superintendent of education is hereby authorized to revoke or suspend the certificate of such teacher.”
(Emphasis added.) In Faircloth v. Folmar, 252 Ala. 223, 40 So.2d 697 (1949), this Court construed tit. 52, § 359, the predecessor of
Sections of the Code originally constituting a single act must be read in pari materia in order to “produce a harmonious whole.”2 2A Sutherland Stat. Const. § 46.05 (5th ed.); see also Ex parte Hayes, 405 So.2d 366, 369 (Ala.1981) (
Moreover, every clause in an act must be accorded a field of operation if possible. McCausland v. Tide-Mayflower Moving & Storage, 499 So.2d 1378 (Ala.1986); In re Ashworth, 291 Ala. 723, 287 So.2d 843 (1974). A clause or phrase may be excised from a statute, as one was in Fairfield, only if it is “certain that the legislature could not possibly have intended the words to be in the statute, and that the rejection of them serves merely as a correction of careless language and actually gives the true intention of the legislature.” 2A Sutherland Stat. Const. § 47.37 (5th ed.) (emphasis added). A careful reading of the Teacher Tenure Act as a whole compels the conclusion that the de facto elimination of the phrase from
Specifically, Ms. Jackson and the AEA contend that the Fairfield construction creates a considerable disparity in the protections afforded the parties to a teaching contract in the event of a cancellation by either of them. The AEA insists that a “teacher‘s contract of employment with a school board is not simply a contract till `death, resignation, or discharge do us part.’ Each teacher enters into a yearly contract setting forth her salary and duties.” Brief of Amicus Curiae Alabama Education Association, at 9 (emphasis in original). Ms. Jackson and the AEA thus contend, in effect, that the interim between school terms—during which most teaching positions are filled—is a crucial period for both the teacher and the school board, tenure notwithstanding.3
The legislature‘s answer to the school board‘s concerns during this period was to prescribe in
Fairfield, by contrast, denies tenured teachers a corresponding accommodation. Instead, its construction of
Such disparities in the obligations of the parties are repugnant to the policies underlying the Teacher Tenure Act. Ex parte Hayes, 405 So.2d 366, 370 (Ala.1981) (rejecting a construction of
Moreover, under Fairfield‘s construction of
More significantly, however, the Fairfield construction presents serious due process issues. The Commission concedes that without the applicability of the notice provision in
“The teacher argues that the board violated the provisions of the state tenure law by waiting until October to give the teacher notice of the cancellation which had been proposed in July. However, we can find no provision governing the time in which the proposal to cancel a teacher‘s contract is made and notice of the proposal is given to the teacher. As noted above, the tenure provision requires only that the notice of the proposed termination be given no less than 20 days nor more than 30 days before the hearing. As evidenced by the record, the board complied with this requirement.”
Id. at 50. (Emphasis added.)
The Commission contends that the provisions in
In view of these considerations, we cannot accept Fairfield‘s conclusion that the contested phrase, in the context of a tenured teacher‘s contract cancellation, constitutes surplusage. Neither can we conclude that the “legislature could not possibly have intended the words to be in the statute.” 2A Sutherland Stat. Const. § 47.37 (5th ed.). On the contrary, it appears to us that the legislature included the phrase “whether in continuing service status or not,” in order to prevent the very result obtained in this case, that is, the hardship resulting from the Board‘s four-month delay in notifying Ms. Jackson of the proposed contract cancellation. Fairfield, therefore, to the extent that it holds
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
ON APPLICATION FOR REHEARING
ADAMS, Justice.
The Birmingham City Board of Education (“Birmingham Board“), as amicus curiae on application for rehearing, has posed a fact situation that it concedes is unlikely to occur, but which, if it did occur, would fairly demand a result different from the one we reach in this case. It is our experience that this Court functions best when addressing real fact situations that present concrete issues properly preserved for review. Thus, although we understand the problems that would be presented by the Birmingham Board‘s hypothetical and are sympathetic with its concerns, we prefer not to address that hypothetical; until real facts arise and such a case is actually presented, any statements we might offer would amount to an advisory opinion.
APPLICATION OVERRULED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.