FRAZER SCHOOL DISTRICT NO. 2, Aрpellant and Respondent, v. BETH M. FLYNN, SUPERINTENDENT OF PUBLIC INSTRUCTION; ALFREDA DRABBS, VALLEY COUNTY SUPERINTENDENT OF SCHOOLS; AND DELORES HUGHES, SUBSTITUTE HEARING OFFICER, RESPONDENTS AND APPELLANTS.
No. 86-302.
Supreme Court of Montana
Decided Feb. 5, 1987.
732 P.2d 409
Submitted on Briefs Jan. 7, 1986.
James D. Rector, Glasgow, for respondents and appellants.
Bruce W. Moerer, Montana School Bds. Assoc., Helena, for amicus curiae.
This is an appeal from an order of the District Court of the Seventeenth Judicial District, in and for Valley County, Montana. The order reversed a decision of the State Superintendent of Public Instruction which allowed a tuition transfer for appellant. We affirm the order of the District Court denying the tuition transfer.
Beth M. Flynn (appellant) a resident of the Frazer School District, removed her child from the Frazer school to the Wolf Point school. She then requested the Frazer School Board to approve her tuition application pursuant to
Appellant appealed the decision to the Valley County Superintendent of Schools. By request of the parties, Dolores Hughes, County Superintendent of Phillips County, heard oral testimony and affirmed the School Board‘s decision. A further appeal to the State Superintendent of Public Instruction resulted in reversal of the decision denying tuition transfer. The Frazer Schoоl Board appealed to the District Court, which reversed the order of the State Superintendent of Public Instruction and reinstated the decision of the Frazer School Board, denying a tuition transfer. Appellant appeals from the decisiоn of the District Court.
We are asked to determine whether the decision of the District Court complies with the Montana Administrative procedures Act, specifically
The Montana Administrative Procedures Act (MAPA) permitting
The standard of review applicable to the District Court is set forth in
“(1) The review shall bе conducted by the court without a jury and shall be confined to the record . . . The court, upon request, shall hear oral argument and receive written briefs.
“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because thе administrative findings, . . . conclusions, or decisions are:
“. . .
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;”
Under this section, neither the District Court nor the Superintendent of Public Instruction may substitute his judgmеnt for that of the County Superintendent as to the weight of the evidence on questions of fact.
When considering whether the District Court erred in its review of the State Superintendent‘s decision, we will not overturn the District Court unless we find its decision to be clearly erroneous. Rule 52(a), M.R.Civ.P. In this proceeding the District Court was not the trier of fact. We have here an appeal from a lower appellate tribunal, the State Superintendent of Public Instruction, which in turn based his conclusions on a review of the printed record, without the benefit of listening to and observing the demeanor, conduct, and testimony of witnesses. We will reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings and conclusions are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. See Yanzik, supra, 196 Mont. at 388, 641 P.2d at 439.
MAPA provides that the County Superintendent shall hear all controversies relating to tuition application and take testimony to determine the facts.
The standard of review for the State Superintendent is found in Rule 10.6.125, Administrative Rules of Montana, (ARM). The Superintendent of Public Instruction has incorporated by reference the Model Rules of the Attorney General for rulе making procedure. Pursuant to that procedure, Rule 10.6.101, Scope of Rules, was adopted, and became effective in September, 1982. Subsection (e) says:
“All controversies arising under any other provision of Montana law or federal lаw for which a procedure for resolving controversies is not expressly prescribed shall be governed by these rules.”
Rule 10.6.125, ARM, sets out the standard of review for the State Superintendent. Subsection (4) of the Rule is virtually identical to
“10.6.125 APPELLATE PROCEDURE-STANDARD OF REVIEW.
“. . .
“(4) The state superintendеnt may not substitute his judgment for that of the county superintendent as to the weight of the evidence on questions of fact. The state superintendent may affirm the decision of the county superintendent or remand the case for further proceedings or rеfuse to accept the appeal on the grounds that the state superintendent fails to retain proper jurisdiction on the matter. The state superintendent may reverse or modify the decision if substantial rights of the Appellant have beеn prejudiced because the findings of fact, conclusions of law and order are:
“(a) in violation of constitutional or statutory provisions;
“(b) in excess of the statutory authority of the agency;
“(c) made upon unlawful procedure;
“(d) affected by other error of law;
“(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
“(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; [or]
“(g) because findings of fact upon issues essential to the decision were not made although requested.”
The decision of the State Superintendent was appealed to the District Court. After reviewing the record the court determined that
The order of the State Superintendent of Public Instruction substitutes the Superintendent‘s judgment for that of the Valley County Superintendent of Schools, in violation of Rule 10.6.125, ARM. The reviewing agency must confine itself to an analysis of whether the findings are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, or are arbitrary or capricious оr characterized by abuse of discretion.
The District Court in reviewing the order of the State Superintendent of Public Instruction is required to and did adhere to this standard. Thus, it did not err in finding the State Superintendent had exceeded his authority. Therefore the order of the District Court upholding the Frazer School denial of tuition transfer is affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, HARRISON and WEBER concur.
MR. JUSTICE SHEEHY, dissenting:
The majority opinion is written in complete ignorance of the only real issue in this case: Whether the Frazer School Board considered the factоrs set out in
When approval is sought from a school board for out-of-district tuition so that pupils can attend elementary schools, the members of the school board individually are to consider under
The distance and road conditions between the child‘s residence and any school of his resident district; - The training center of the child‘s parents;
- An opportunity to live with his relatives;
- Dormitory facilities in the district to be attended;
- The living conditions of the child‘s family;
- The availability of transportation; or
- The type of educational program available in the school to be attended.
The Flynn‘s appealed the denial by the School Board of their tuition transfer request to the county superintendent. Only two of the factors set out in
If we look at the minutes of the October 14, 1984 meeting of the School Board at which the tuition transfer request was denied, we find the only reasons suggested by the district superintendent to the Board were: (1) “874 monies are theoretical, (2) the principle of quality of education, and (3) this will not set a good precedent.”
Under the testimony of one of the school district board members before the county superintendent, it developed that the Board habitually ignores the requiremеnts of
“Q. Has the Board had a policy concerning tuition transfers? A. Yes. Our policy since I have been on is that, as long as a person lives on a bus route, we do not grant tuition.”
Mr. Clark was further asked on the factors considered by him as a board member:
“Q. Available transportation, trade center, road conditions, emergency service, relatives in Wolf Point, and the children already started their education in Wolf Point. Are those legitimate reasons for transfer of tuition under the statutes of Montana? A. No, not in my opinion.”
It is obvious that the School Board has set itself above the law, and when tuition transfers are requested, such requests will be denied if the applicant child lives on a school bus route. Yet, availability of transportation is only one of the factors set out in
The majority opinion complains that the State Superintendent “substitutes the superintendent‘s judgment for that of the Valley County Superintendent.” He certainly did, and rightly so. The decision of the School Board, and of the county superintendent, were clearly erroneous in view of the reliable probative and substantial evidencе on the whole record (
The only stricture on the State Superintendent when an appeal is taken to him from a county superintendent is that he may not “substitute his judgment for that of the county superintendent as to the weight of the evidence on questions of fact.” Rule 10.6.125(4), A.R.M. In this case the superintendent did not substitute his judgment fоr that of the county superintendent on questions of fact because there were no questions of fact to weigh. The school board and the county superintendent failed entirely to consider the factors required to be considered under
I would affirm the decision of the State Superintendent, and thus reverse the District Court.
MR. JUSTICE HUNT concurs in the foregoing dissent.