*1 App others, Hortonville Education Association ellants,* District Hortonville Joint School Respondents.* others, No 1 and February 5, Argued 635. No. 1975. November 1974. Decided (Also 658.) reported in 225 N. W. * rehearing denied, costs, March without on Motions for *3 .472 *8 appellants
For the by there Robert H. were briefs Friebert Thomas John, Samson, and W. St. attorneys, and Finerty Friebert, Burns, counsel, & Milwaukee, of all of argument by and oral Robert H. Friebert. respondents by
For the there was Jack D. brief Walker, Ruhly Melli, Shiels, James K. and Walker & argument by
Pease, Madison, Jack C., S. and oral all of D. Walker. separate of by
A each amicus was filed brief curiae following: Clark, A. Mercer and (a) James Karen F. Esch, Clark, Madison, Ela, The Wiscon- Hart & all of for Inc.; Boards, (b) J. Set- of Jean Association School sin League Munici- terholm of of Wisconsin Madison.for Cates, ; all palities (c) Lawton & of John C. Carlson and of Public Madison, Coalition American for the Wisconsin Employees; Zubrensky, Padden, & Bratt (d) and Graf Auto- Union, United of Milwaukee for The International Agricultural Aerospace Implement Workers mobile, and of America. by appellants
For the Robert H. there were briefs John, and attorneys, and Thomas St. Friebert W. Finerty counsel, Samson, Friebert, Burns of all of & Milwaukee. by respondents Jack
For the there were D. briefs Ruhly Melli, Walker, Walker & Shiels, James K. and C., Pease, S. all of Madison. curiae filed
There a brief amicus for Wiscon- was Boards, by Inc., James Association School sin F. Ela, Esch, Clark, Mercer Hart Clark, A. & Karen all Madison.
Beilfuss, in this court are: J. The issues discharge of munici- Does law allow the Wisconsin engage employees pal ain strike? who the action the Hortonville school board 2. Does discharging obtaining judicial order teachers instead prohibi- enforcement selective of Wisconsin constitute right strike, thereby denying the teach- tion equal protection their the laws? ers against prohibition strikes 3. Does the state’s binding provision teachers, arbitration without punishment, when novo of reasonableness de review
479 public employees, provided are for other such benefits equal protection constitute a clause of the violation fourteenth to the amendment United Constitu- States tion? process denied of
4. Were strikers due law because discharged they by the Hortonville school board were neutral, impartial is not detached decision which maker ?
5. the action taken the Hortonville board Did meeting open education a violation of the constitute law? presented general rule issues not is time on
trial court for the will not be considered first 687, appeal. (1974), Estate 2dWis. Scherffius 547; Resseguie Mut. 696, 697, American 2d N. W. Liability 92, 103, 104, (1971), 51 Ins. Co. 2dWis. issues, respect this N. 2d to constitutional W. 236. With may, such discretion, court had said it in its consider appeal for the time if it in the interest issues first on is justice factual to do are no unresolved so and there 654, 650, 2d (1971), State v. Morales issues. Wis. 841; Bradley 2d v. State 36 Wis. (1967), N. 2d 187 W. 359a, 153 155 N. We N. W. W. 2d justice believe, case, to con- is in the interest in this as set forth above. sider issues raised municipal discharge law allow the Does Wisconsin engage employees in a ? who strike municipal employees, (4) As to sec. 111.70 all provides: Stats., Nothing prohibited. in this “Strikes contained sub- grant chapter to strike shall constitute employe municipal are county or and such strikes prohibited.” hereby expressly Stats., employees, 111.89, provides:
As to state sec. establishing prohibited. (1) Upon that a strike “Strike option employer may either at his progress, charge practice injunction or file an unfair labor seek *10 (2) (e) both. the 111.84 or with commission under s. regard depart- responsibility In the this of it shall be the ment an in- of to decide whether to seek administration charge. junction practice or The file an unfair labor remedy not consti- existence of an administrative .shall grounds injunctive tute for denial of relief. “(2) participation of The occurrence a and the strike rights given by employe therein to a do not affect the state including: employer strike, the to deal with the including “(a) right impose discipline, dis- The to partic- charge, employe suspension pay, or of without therein; ipating “ eligibility (b) right The cancel to the reinstatement of any employe engaging therein; and right request imposi- “(c) employer The of to the the organization fines, against or tion either the labor engaging damages employe therein, for because or sue activity.” of such strike appellants employers contend state The since that discharge employees specifically given are strike, provision applies in the event of a while no similar municipal employees, municipal employers are that discharge striking employees are allowed to but remedy injunction. restricted to the respondents Dist. cite Millar Joint School 303, 312, for the Wis. 2d N. W. proposition that: implied a teacher power dismiss has “A school board good and for expiration term service his
before perform his fails to If a teacher ... sufficient cause. discharge may him contract, board duties under his from further service.” Stats., (4) (1), in
They further contend that 111.70 sec. right. cor- way they are believe We no diminishes (2) provides: Sec. 118.22 rect contention. during year which or March of the school “On before contract, teacher which the a teacher holds employe employed the board or at direction of is give or refusal teacher written notice renewal shall ensuing year. If no for the school to renew his contract given such notice on before the contract or March ensuing year. then force shall continue for the school A teacher who receives a notice of renewal of contract for ensuing year, school or a teacher not receive who does a notice of renewal or refusal renew his contract ensuing year school on or before March shall accept reject writing or such contract not later than following April employed the dismissed may 15. No teacher except by majority vote of the full member- ship of Nothing prevents the board. in this section modification or termination of a contract mutual agreement of the teacher No board. such board may employment enter into a a teacher contract of with *11 any period for of time as is then to which the teacher employment under a contract of another with board.” may The reference to the fact that a teacher be “dis- clearly right missed” indicates of the the existence discharge. supra, Millar, Both Richards Board and v. (1973), 460b, Education 2d 206 Wis. 2d N. W. clearly indicate that the term means to re- “dismiss” employment from merely move not to and refuse to renew a contract.
Furthermore, power discharge the of the board to “just teacher clearly preserved for in the cause” is master contract between HEA the and school district. statutes, cited, contract, From the the the cases power the we conclude school to dis- board did have engaged charge prohibited teachers who in the strike. appellants The contend the action Hortonville discharging of ob- school board teachers instead taining judicial order enforcement constitutes selective right prohibition strike, of the of the there- Wisconsin by denying equal protection to the their teachers guaranteed by of the the state federal consti- laws tutions. agreement, pages The master in the record while contained at appended 214-226, part was not of or to either of the affidavits summary respect judgment. However,
filed to the motion for with upon appeal, decided to determine the issues because we have raised should be considered. this document argue appellants first known
The that this is the striking have instance in where teachers been Wisconsin discharged. procedure They assert usual injunction, and that school to seek an board practice from this in this case amounts deviation equal a denial of selective enforcement the law and protection. argument, deny respondents,
The the first this is activity. They discharge instance of also because strike urge dispute involved, that there is an unresolved factual i.e., procedure in of teacher what is normal the case purpose opinion, ? strikes For we will assume this allegation appellants the factual is correct. question Several bear on the of whether factors discharge equal protection due to amounted to a denial question enforcement of the selective law. basic must in the affirmative a denial of be answered before equal protection a difference in can be found is whether Harper treatment amounts to discrimination. invidious Virginia 663, 666, Board Elections 383 U. S. 1079, 16 Sup. Ct. L. Ed. least, Arguably at there were other remedies pursued. sought could have It school could have sought finding it could have fact and media- injunction, *12 Employment the tion before Wisconsin Relations Com- mission,4 bargaining have continued it could collective violating discharged have the could teachers for statutory against public employee prohibition the strikes pursued done The fact the school as was here. board one ipso facto mean the the remedies does teachers equal protection. especially were This is true in denied we do not have a record which this case because reveals pertinent upon the and relevant facts the all which might response a fair and on acted. What be reasonable might part not be a different of the board under background. right discharge Further, to here factual 4 111.70, Stats. Sec.
483 essentially is contract contractual. master Whether between the and the district the con- school .board tracts the individual teachers and the between school comparable are districts cannot be from determined record in this case. striking exception here,
With one not material all of They given the were were all teachers treated the same. notices, opportunity heard, all same had same be discharged right given apply all were all dis- The record does not reveal invidious reinstatement. equal appears. protection no crimination and denial equal appellants they also contend that were denied First, respects: protection of the law two additional they strike, contrary their are denied private sector; second, counterpart and, in that binding benefits, e.g., arbitration, they are denied certain public police employees, i.e., which are to other accorded and firemen. right, suspect or a fundamental
Absent a classification case,5 has neither of in this this court which are involved held that: legislature as to a classi “. . . to declare an act of equal-protection clause, of the it is first
fication violative necessary legislature prove its to beyond has abused that reasonable doubt.” La ex rel. State discretion 111, (1967), 96, 2d 153 N. W. Follette Reuter 36 Wis. Penney 65 (1974), Co. See also: Wiener v. J. C. 2d 49. 139, 147, 222 149. 2d N. W. 2d Wis. strong constitutionality presumption of is a which There say legislature, unless the can attaches acts court reasonably facts can conceived that no statement 147; Wiener, supra, page ex State sustain it. would Paper (1973), Plante 58 Wis. rel. Hammermill Co. v. La Only if 32, 46, 2d a classification 205 N. W. 5 Warshafsky (1974), v. The Co. 2dWis. See: Journal 197; Federation Postal Clerks v. Blount W. 2d United 216 N. Supp. 879, (D. 1971), affirmed D. Fed. C. C. Sup. L. Ed. 2d 38. Ct. U. S. *13 no purpose reflects
arbitrary and has no reasonable justifiable of consti- public policy will be held violative Simanco, Inc. v. guarantees equal protection. tutional 57, Department 47, (1973), Revenue 57 Wis. 2d supra, page court Wiener, this N. In 2d 648. W. proper necessary classifi- for a reiterated five standards cation : “ upon (1) substantial All must be based classifications really from
distinctions which make one class
different
another.
germane
adopted
“(2)
The classifications
must be
purpose
of the law.
upon
“(3)
exist-
The
must not be based
classifications
ing
only. They
not
so constituted
circumstances
must
be
preclude
included within
additions to the numbers
a class.
“
apply
(4)
may apply,
To
it must
whatever class
law
equally to
thereof.
each member
far
“(5) The characteristics
each class should
so
reasonably
different
from those of
classes as
other
having regard
suggest
public
propriety,
to the
at
least
legislation.”
good,
See
substantially
different
County
(1972),
also: Dane
423,
v. McManus
55 Wis.
Hopkins
667;
rel. Ford
Co.
State ex
N. W. 2d
Mayor
222,
Considering appellants’ contentions in reverse equal they protection claim that are be- teachers denied cause, police they firemen, are accorded unlike binding rights. dispute or other settlement arbitration police firemen is treatment accorded different upon one substantial distinctions which make class “based really Weiner, supra, page 147. from another.” different legisla- It not difficult to find a rational basis police go the imminent tion. If or firemen on strike danger great community and immediate is so every get taken to them reasonable measure must be back (4) 111.77, (jm) and Stats. See: Secs.111.70 *14 job possible, prevent on the as or to them from soon striking in is the first instance. The classification legisla- legitimate a of the unreasonable and exercise is tive function. ap- question respect
A the more difficult arises with pellants’ they equal protection, contention that are denied nonpublic employees, by application of the the vis-a-vis (1), (4) ban contained in Stats. strike sec. 111.70. support typically propounded Several rationales are public employees. of relies on the no-strike One laws sovereignty governmental employee reasons of and government, employer, private that cannot unlike go suspend operations of nor nor out business increase higher expect budgets, a its therefore is entitled and Asso. v. level of devotion to service. Norwalk Teachers’ Education 83 Atl. Board 138 Conn. of peculiar of the Another nature 482. rationale is opposed employers, private makes government, as particularly to the strike. vulnerable usually private sector, . In the union are “. . demands competition by and other market checked the forces of Negotiators typically such pressures. are limited competitors, entry union as the of non restraints foreign capital for of impact goods, the substitution operations to lower-cost higher-priced labor, the shift contracting high-cost operations to other areas, out unprofitable and enterprises, shutdown plants costs, redesign higher products to meet operations, go managerial option to out of business finally the and entirely. nonexistent are either limitations Similar budgets and public very in the sector. While much weaker way operate general corresponding check increases tax levies remote compensation, the connection is groups of particular scarcely units applicable Unhampered employees. public strategically located heavy pres- exert that can restraints, union market such sure excessive through may to obtain be able a strike ed.), (7th Law Bok, Labor wages Cox and benefits.” pages employees An have public additional rationale is that through adequate opportunity to achieve their aims legislative process. Note: The and Its Alternatives Strike Review, Employment, in Public Law 1966 Wisconsin protects 556. It also often the strike is stated ban public health, safety and welfare. position appellants that neither these nor support validity other rationales can of the strike *15 ban, concede, respect They to of at with them. .least course, may by police that a in strike firemen result or irreparable community, real, immediate harm the and to applied thus admit that the is to strike ban valid types emergency They however, argue, those of services. scope. that the statute too broad in its is Many courts have considered this issue and none have equal protection. found a denial of See: Annot. Right Employees Labor Law: Public to or Enr Strike of gage Stoppage, A. R. in L. As stated Work 3d 1147. Blount, supra, in United Federation Postal Clerks v. page 883: right “Given fact that there no constitutional is strike, arbitrary it is not irrational or for the Govern- employment promise ment to condition a on not to with- collectively, prohibit by hold labor in tives of the and to those strikes public employment, preroga- whether because sovereign, higher obligation some sense of public service, continuing associated with to assure the functioning interruption, Government without protect public safety health and or for other reasons. Although argues plaintiff provisions question that the unconstitutionally covering are employees regardless all broad Government type importance or they do, work we hold that it makes difference no jobs performed public employees whether the are certain regarded ‘non-essential,’ as ‘essential’ or or whether jobs performed by private industry are similar workers protected by who do have strike . . . statute. Equal Clause, however, Protection does not forbid rights are not all discrimination. fundamental Where involved, particular a not violate classification does ‘arbitrary’ ‘ir Equal rational,’ conceived or not Protection Clause if it is may i.e., reasonably ‘if of facts state Maryland, S. justify 366 U. it.’ McGowan v. 1105, Ed. L. S. Ct. (1961). . . .” meaningful there a distinction between We conclude is nongovernmental employees. governmental employees and upon imposed public employees is The strike ban on based legislation creating not it valid classification and equal protection. If the no- unconstitutional as denial public employees is imposed legislatively on strike ban legis- altered, or be done be abolished must lature and not courts. process of they
The teachers denied due contend were their hearings law because were considered discharges impartial maker. by an decision ordered
The fourteenth to the amendment United States alia, shall de- inter that no state provides, Constitution prive any persons property liberty due without process whether of law. Before it can be determined appellants process, it established were denied must be due *16 they process that they to due of law in that were entitled liberty by action. deprived property or were of their state Horton- present this The clearly in case. action is State organized is under No. 1 ville Joint School District municipal em- and of a of the state Wisconsin is laws 111.70, in Stats. The school board ployer defined sec. management charged 120 with the under chs. 118 and their district, of the school district. agents of the therefore extensions state. are deprivation property, respect question of to the
With Regents v. Roth 408 U. S. Board we refer to Perry 548, Sup. 2701, L. Ed. 2d Ct. Sup. Ct. (1972), 408 U. S. Sindermann Roth, L. Ed. 2d In 570. the court decided that a non- professor tenured procedural assistant was not entitled to process teaching due one-year when his not contract was renewed. The court stated: “The procedural protection Fourteenth Amendment’s property safeguard security is a that interests person already a acquired specific has in benefits. These property may many take forms.
interests — interests — property “. . . To benefit, person have a interest in a a clearly must have more than an need or abstract desire for it. He of ment to expectation must have more a than unilateral must, instead, legitimate it. He have a claim of entitle- purpose it. It is a of the ancient institution property protect rely upon people those claims which daily lives, arbitrarily on their reliance that not must be purpose undermined. It ais of the constitutional hearing provide a opportunity person an a vindicate those claims. “Property interests, course, are not created Rather, they Constitution. are created and their dimen- by existing sions are stem understandings defined rules that independent from an source such as state law— understandings rules or that secure certain benefits and support claims of entitlement to those benefits. . . .” Roth, supra, pages 576, Perry, In the court added: “A written explicit contract provision with tenure clearly is evidence of a formal understanding sup- ports a teacher’s claim of entitlement em- continued
ployment unless sufficient ‘cause’ is shown. Yet absence explicit of such an provision may contractual always possibility foreclose the that a ‘property’ teacher has re-employment. interest For example, the law of most, all, jurisdictions contracts if not long has em- ployed process by agreements, though which not for- malized writing, may ‘implied.’ be 3 A. on Corbin Con- tracts, (1960). secs. Explicit 561-572A contractual provisions may supplemented by agreements other im-
489 plied the promisor’s conduct from ‘the words and light Id., surrounding at 562. of the sec. circumstances.’ ‘ meaning acts And, promisor’s] words and he of [the [t] relating usage past.’ Ibid.” the is them to found Trevor Perry, pages 601, also: Pelisek v. supra, 602. See 1974), (E. 371 D. State Graded Fed. Dist. No. 7 Wis. School Supp. 1064. Sup. Updegraff In U. S. Wieman v. professors re- Ct. the court held that L. Ed. during their moved from the terms of contracts office Carpenter City process. also: were to due See entitled (E. 1973), District No. D. Wis. School Greenfield Supp. Fed. discharged appellant-teachers this were In case during their of their 1973-1974 contracts and terms employment for the 1974-1975 or for offers contracts unquestion- year school were revoked rescinded. This ably deprivation property a within amounted process the due clause. intendment of prop- respondents deprivation of contend that no going strike, employees, erty on is because involved they in con- property had abandoned interest whatever Going respondents employment. strike, on tinued quitting, equivalent breach argue, is the unilateral any property employment which dissolves of the contract process purposes. interests due contention, unnecessary to reach the of this It merits is begs argument question. however, One because process to de- purposes of in this context due is alleged take conduct did fact whether termine performance fore- place. certain acts say To that the hearing requirement whether determine closes engage performed fact in circular were acts deprived reasoning. of a constitu- were The teachers property in this case. tional *18 question Another to considered is whether deprived liberty. teachers were The United States Supreme Roth, pages 573, supra, Court in stated: might “There be cases in which a State refused to re- employ person a under such that circumstances interests liberty implicated. in But a would be this is not such case. declining State, respondent, “The in to rehire did charge against any might seriously not make him that damage standing community. his and associations in his It not charge, did base the nonrenewal of his contract on a example, for immorality. guilty dishonesty, that he had been or so, Had it done a this would be different good case. person’s name, reputation, For a ‘[w]here honor, integrity govern- or is at stake because of what the doing him, ment heard opportunity is notice and an to be Constantineau, are essential.’ Wisconsin v. Updegraff, U. S. Wieman 437. v. 344 U. S. case, . process . In op- such a due accord an would portunity In charge University to refute the before officials. present case, however, suggestion there no is what- respondent’s ‘good ever that the name, reputation, honor, integrity’ or at stake. “Similarly, suggestion State, there is no declining re-employ respondent, imposed on him stigma disability other freedom foreclosed his advantage employment take opportunities. of other State, example, regulations The for not invoke did respondent public employment bar from all other state so, this, Had universities. it done again, would be ‘ deprived different only present case. For o be [t] government employment opportunity but of future for certainly injury. is no small . . .’ Joint Anti-Fascist Refugee Committee v. McGrath U. S. at ... [341 123] (Jackson, J., concurring). . . .” Roth,
In there was no stated for the reason nontenured being teacher not In bar, rehired. however, case at the stated (1) reasons were two: The teachers had contracts, breached (2) engaged their they had a contrary strike apparent Wisconsin law. It is that such charges detrimentally could reputa- affect an individual’s significantly thereby tion in the under- labor market and process opportunities re-employment. mine his Due for requires hearing opportunity a notice and an charges. teachers to clear themselves of such Having entitled to determined that teachers were process, process question due the more of what difficult emerges. Workers often-quoted is due Cafeteria *19 McElroy (1961), 1743, 895, Sup. 886, 81 Ct. 367 U. S. 1230, provides: Ed. 6 L. 2d process procedures . . “. of what due consideration may require begin government given under of circumstances must set precise nature of the with a determination the private as of the involved well function as governmental action.”
interest that has been affected weigh balancing the must to Thus test be established summary interest of the in determination school district against continued the of the teachers their interests Only light balancing employment. test can of that procedures the afforded it be determined whether requirements satisfy to teachers failed constitutional process. of due allege appellants respect procedures, to
With those i.e., respect, inadequacy only one constitutional their require- impartial maker.7 The the lack an decision 7 alleged appellants to lack do brief reference make timely present notice, evidence of the failure board questioning against them, preclusion and from teachers They offering affirmative evidence. members of the board or only however, argue points, and the issue raised do not these impartial alleged regarding process goes an lack of due decision maker. timely notice, respect noted that to the lack of should be With days, spanning longest although was four notice received day weekend, of the hear- the shortest was received on the hearing ing, at the how much the teachers was asked counsel for replied prepare. Counsel that he time he needed additional proof then let if offer know make an would
492 impartial
ment of an decision maker is well established an component essential procedural process. due See: Berry (1973), Gibson v. hill 564, Sup. 93 578, U. S. 1689, 488; Ct. Village 36 L. Ed. 2d Ward v. Monroe ville (1972), 57, 60, Sup. 409 U. S. Ct. 34 Ed. 2d L. 267; Morrissey 471, 485, v. Brewer (1972), 408 U. S. Sup. Goldberg 484; Kelly Ct. L. 2d Ed. 254, 271, Sup. 397 U. S. Ct. 25 L. Ed. Morrissey, involving- process In required the due to be parolee prior revocation, afforded a the court stated: view, process “In our requires due that after the ar rest, ground the determination that reasonable exists parole revocation of made should be someone directly involved in the It case. would unfair to as supervising parole sume that the officer does not conduct parolee interview with the to confront him with reasons for revocation before he recommends an arrest. It parole would also be unfair to assume that the officer against hostility parolee destroys bears his neutrality ; realistically parolee the failure of the is in a sense a supervising failure for However, other his officer. we assumptions make way need clude that no one or the *20 con person there should an uninvolved to make be preliminary believing this evaluation of the basis parole conditions of have been violated. The officer directly making involved in recommendations cannot al ways complete objectivity evaluating have in them. Gold berg Kelly v. unnecessary impugn it to found motives independent of the decisionmaker to a caseworker find need for an to examine the initial decision.” Mor rissey, pages supra, 485, 486. Ward, supra, involving
In city a case a situation where mayor empowered judge was to sit try as ordinance cases, violation the fines from which constituted significant part city’s of the income, the court stated that the test was whether: he needed time. more The offer was made but counsel re- never
quested additional time thereafter. pos “. . . ‘which offer a situation is one would [the] forget temptation average judge man sible to the as a defendant, proof required or burden to convict might nice, clear which lead him not to hold balance ” Ward, the accused. . . .’ and true between the State and . supra, page 60 important procedural process It note is is due as to not to the factual whether limited determination engage particular an individual or did not in the did by the conduct. It to the taken extends well action state once that conduct As is stated established. Morrissey, supra, page 488: hearing process] for more “This must basis lead [due determining probable cause; a final
than must it evaluation of facts considera- contested relevant tion of tion. determined revoca- whether the facts as warrant parolee opportunity heard The must have an to be show, can, if he the con- he not violate did mitigation did, ditions, if he that circumstances or, suggest that revocation.” violation does not warrant essential, un- would seem even in cases of Therefore disputed stipulated impartial facts, decision that an determining charged responsibility maker be with taken on of those facts. what action shall be the basis important principle play factor in a “The of fair process Electric due of law.” General consideration of Employment (1958), Co. Wisconsin Relations Board 691; Board 227, 241, 88 N. 2d Durkin v. Wis. W. Police Fire & Comm. Wis. 2d 2d 1. N. W. background giving the ultimate facts rise to case a situation at conducive to de-
this reveals all impartiality part on the tachment and school board. *21 bargaining agent The was the collective for engaged in the collective district and thus was school bargaining process representative, with teachers’ imagine the HEA. It is not difficult the frustration negotiations on the part board members when down, agreement broke and the not be reached could employees activity. resorted to This is concerted to suggest, course, were that board members anything public servants, trying dedicated but provide keep- quality the district with education while still ing budget. They were, however, not within its limited precipitated uninvolved in the events which decisions they discharge required were to make. The decision to possibly was elimi- convenient alternative which would problems swoop. nate their conclude labor one fell We impartial board was not maker in a decision appellants constitutional and that were denied sense process due of law.
Respondents rely heavily Arnett v. cases, on two Kennedy 1633, 134, Sup. L. 416 U. S. Ct. Regents 15, and Johnson v. Board (W. Ed. D. Wis. Supp. support 1974), 227, 377 Fed. their contention process there due is no violation involved in this Arnett, employee discharged by case. In a federal was superior employee allegedly his immediate because the disparaging made superior. remarks such about court expectancy employment, held that whatever of continued property right, job employee and hence had in his Lloyd-La (Act Aug. created was Follette Act 389, 6, C., ch. sec. 5 U. sec. Stat. now S. 7501), pertinent provides part page which at 150: “ ‘ person o in the civil service of [N] classified except United States shall be removed therefrom for promote efficiency cause such as will of said service given writing, and for removal is person reasons and the whose sought have shall notice of and of the same n any charges preferred against him, and furnished copy thereof, with a time and also be allowed a reasonable answering personally writing; the same in *22 thereof; of wit- support but no examination in affidavits hearing except in required trial or nesses nor shall making the removal discretion the officer Arnett plurality in justices The three who constituted respect process: stated with due granted him very which . the of the statute . section by only right previously existed that a which had right, regulation, expressly provided virtue of administrative by de procedure to be also which ‘cause’ was guaran termined, tees expressly procedural omitted by the appellee are insists which mandated bifurcating very Only sentence by Constitution. appellee the Congress upon the right conferred Act which be said for cause not to be removed save could right expectancy with that he had an of that substantive Congress procedural attached out the limitations which Arnett, supra, page 152. . . .” it. property plurality The concluded that extent of thus process by itself, and hence due was the act limited analogous here. required. There no was not is situation Johnson, campuses in of the various In chancellors budget cuts, university system were faced with state them. The to effectuate thus had determine how discharged by chancellor as plaintiff-professor his was respect plaintiff’s to the a of such situation. result With impartial decision that chancellor was claim page 240: maker, the court at stated obviously made to be “The initial decision had appropriate wholly and the chancellor someone was choice.” suggest nothing case, however,
There potential partiality at for bias the case bar inapposite. it is and thus argue respondents and amici curiae
The procedures postdetermination amelio- review existence original An any partiality determination. rate analysis however, procedures re- suggested, of the two inadequacy. the common-law writ veals their The first is scope is limited of certiorari. of review certiorari determining: *23 (1) kept . within its the board Whether theory jurisdiction; (2) proceeded it whether on correct oppressive, law; arbitrary, (3) of or whether its action was judg represented not its unreasonable its will and and ment; it (4) and the evidence was whether such might reasonably make the order or determination ” (1959), 6 question.’ 2d Ball McPhee Wis. State ex rel. v. 190, 199, also: v. 94 2d See W. State Goulette N. 711. W. (1974), 2d N. Wis. suggested procedure by The the Wis- second —review Employment consin Relations Commission under sec. procedure applies only (4), the case 111.70 Such Stats. employee prohibited practices, however. Neither provide to alternatives review determine these in- mediation, another course of action whether such bargaining junction, or arbitration continued collective response part a more would have been reasonable on light fact, of the decision maker. of that it is difficult In by to either see how review common-law certiorari or replace impartial can maker in WERC an decision the first instance. strike, on
When teachers went the school board undoubtedly was faced with a situation that needed im- Clearly, duty keep mediate it attention. had' a open competent them with schools staff teachers. statutory If the schools were closed so that the minimum days reached, monetary of school was not number state jeopardized leading school aid would have been or denied budget True, sought to a severe crisis. it could have an Muskego-Norway 8 But see: J. C. S. S. No. D. E. R. B. W. 35 Wis. 2d 151 W. 2d 617. N. injunction gone relief, or for some but WERC hire or fire neither nor the could courts WERC provides part: (2), Stats., “No teachers. Sec. 118.22 may employed except by ma- a or dismissed teacher membership jority vote the full board.” Assuming recognize, did this under the school board impartial it not decision background, factual that was an hearing constitutionally contemplated, or maker officer as go impartial an was it to where obtain authorized hearing maker? answer is officer or decision provide presently not for oiie. the law as exists does it pro- Legislation necessary forum could establish delegation department proper directly cedures or government, not. but does adequate remedy forum does exist or When disputes process, courts, provide under due resolve adequate Constitution,9 can fashion an the Wisconsin remedy. *24 part plaintiffs-appellants of sec. contend gives Stats., (2), the school exclusive
118.22 which right fire, to hire is unconstitutional it denies and process. procedures or due If the statute can be construed objection, provided to it meet a valid constitutional should done. be the initial make believe the school board should
We many hiring firing of one or to or determination as process re- where due is teachers. In those situations 9 “Every person Constitution, I, 9, is Art. Wis. states: sec. wrongs remedy injuries, a all or to certain in the laws for entitled may person, property, character; he or receive which he his obliged pur justice being ought freely, and without to obtain denial, promptly it, completely and and without without chase conformably also: ex rel. delay, See State Wickham laws.” 513; Nygaard 396, (1915), N. W. Wis. Wisconsin Telephone Public Service Comm. 232 Wis. Co. v. 593; (1967), 33 Huebner v. State W. Wis. 287 N. W.N. 2d 646. 147 N. W. namely employed property
quired, teacher’s where the right liberty notice, hearing or is at a and a state- stake — given. ment of reasons As much control should be possible policy left should be with the school set manage and the school.
In employed those situations where teacher is discharged disciplined process otherwise and due is required, adversary position, and the school board in an is hereby provide we and direct that the dissatisfied teacher can, upon petition, or teachers obtain a de novo determi- any county all nation issues in the court record part where the school district or a located. The is issues shall be jury, determined the court without judge unless the a jury determines to call receive an and advisory verdict. The court shall resolve factual dis- putes provide disposition. for a reasonable given
The trial of the contested issues shall be a trial preference date consistent the reasonable with adminis- tration of the court’s calendar. disposition method of
This is not ideal a court because may required public policy to make decisions that are legislative better body. left to a or administrative How- ever, fundamental protection because a constitutional adequate and no exists, involved forum we fashion this remedy. It will be available to teachers until such time only legislature provides until time such as the require- establish a means forum that will meet the process. due ments of procedure just requires
This announced that we reverse judgment summary trial court’s and that the matter be remanded the trial court with the *25 parties pleadings bring to amend their so as to the necessary the issues before trial court. remedy public is limited to This school teachers because we specific statute,
deal school teacher (2). here with a sec. 118.22 appellants the action of The also assert striking discharge education, it decided to of wherein meeting open teachers, law. in violation of was appellants’ third cause issue raised This was trial court. complaint in the action in the amended filed provides: complaint Paragraph 15 of amended and Board, April its administrators “On they meeting special at which agents, met held a and employ- considered, terminate decided and acted to similarly plaintiffs other teachers and ments given meeting special ever was notice of No said situated. similarly plaintiffs, any teachers situated to the nor to the or other public.” provided in meeting Stats., open law, 66.77, sec. part, prior 15,1974: to June “ policy herein implement public (2) and To insure governing meetings local expressed, and administrative of all state all and commissions, boards, bodies, commit- including quasi-munici- municipal agencies,
tees by all provided expressly pal corporations, unless otherwise law, shall be open to all citizens at publicly held and action provided. formal except No times, as hereinafter provided be except in sub. shall any kind, any adopted at closed upon or introduced, deliberated any body, meeting any at or such or closed session reconvened following day during calendar open the same session public adjournment of a No a closed session. public made without meeting session shall be into closed to be general nature of the business announcement business session, and no other at closed considered such up at closed session. taken such shall “ prevent Nothing executive contained shall (3) herein purposes of: sessions or closed quasi-judicial trial Deliberating judicial or “(a) after hearing; or dismissal, promotion, Considering employment, “(b) licensing discipline or compensation, demotion, person licensed state board employe or public *26 charges against investigation such commission the or meeting person, open requested by the em- unless an is ploye discussion.” person investigated or otherwise under or charged, The a demurrer to the third cause trial court sustained concluding meeting complaint, action of that (b) exceptions (3) (a) fell board within respect (3) (b), noted that statute. the court With allege any employee complaint had failed to that requested meeting. open an argument appellants’ the failure centers around give They meeting.
of the notice board (a) apply exception (3) that contend does not because “judicial quasi-judicial after a trial or deliberations hearing” necessarily “adjournment to an of a amounts meeting session,” public therefore re- into a closed quires authority public announcement or notice. No language proposition for that cited and we believe permits interpretation. of the statute no such respect (3) (b), appellants contend With to sub. they requesting meeting open that are from foreclosed an meeting because notice that was was held given. First, never it must that be noted the statute (prior 15, 1974) require to June did not that notice be given. importantly, however, paragraph More 5 of the complaint, specifically incorporated amended which is action, reference into the clearly cause of third states that employees “notified the the Board was considering taking against action their current then teaching light In contracts.” of such allegation, which is parts out record, appellants’ borne other they opportunity request no contention had open meeting is without foundation. conclude the We demurrer to the properly cause action third was sus- tained. Judgment remanded
By
reversed and cause
the Court. —
proceedings
this
inconsistent with
further
*27
to
opinion.
No costs
he taxed.
Order affirmed.
(concurring).
School boards
J.
Hansen,
Robert
W.
by
to contract for the
in this state are directed
statute
qualified
School
their
teachers in
schools.1
services
employees
in
of such school boards
teachers
this state are
2 Except
otherwise
“in
and stand
a contract relation.”
constitutionally required,4
provided by statute,3 or
1
providing:
shall
(1), Stats.,
board
“The school
Sec. 118.21
writing
qualified
. . .”
contract in
with
teachers.
2
442, 446,
(1925),
206
ex
188
State
rel. O’Neil v. Blied
Wis.
teaching
213, holding:
engaged
in this state
“One
in
N. W.
by
part
paid
in
or in
whose services are to be
whole
relation ....’’
state
fund . . .
in a contract
school
stands
3
R. B.
Muskego-Norway
9 v.
E.
D. No.
W.
C. S. J. S.
See:
holding
617,
111.70
540, 557,
sec.
(1967),
2d
35
151 W.
Wis. 2d
N.
including
municipal employers,
prohibit
school
(3) (a), Stats., to
“
coercing any
with, restraining
Interfering
districts,
or
from ‘1.
provided
rights
municipal employe
in sub. 2.
the exercise of the
in
membership
discouraging
labor
Encouraging
“‘(2)
or
represen-
committee,
agency,
or
organization, employe
association
hiring,
regard
or other
plan
tenure
tation
discrimination
”
employment.’
conditions of
terms or
Stats.,
per-
119.42,
establishing
or
teacher tenure
also: Sec.
See
teaching
years
appointment
ser-
after three
of continuous
manent
only
applying
first
to status
vice,
cities of the
class. As
but
Thompson
law,
ex
v. School Directors
see:
rel.
tenure
State
under
citing
284, 288,
ex rel.
(1923),
N.
State
191 W.
179 Wis.
Murphy
The school in Hortonville had into board entered such relationship contractual with each of its school teacher employees year, for the school Each 1973-1974. such personal salary, service contract fixed determined performed the services to period and set the term or employment. incorporated Each such contract into it bargaining agreement,” “the last collective the 1972-1973 contract, master between the Hortonville school and the Hortonville education association.6 When strike, they teaching Hortonville on went teachers were expired.7 under contract, after their contracts had they, appear perform failed to When at school their contract, duty duties under the it became the of the school *28 “inquiry to question conduct board an of the into perform obligation” failure aof teacher to his contract and in steps case of may such “to take breach such as be 8 necessary carry purposes to out the of the school.” 5 Board Education South Milwaukee State ex rel. Reed of (1898), 455, 462, 100 351, holding: Wis. 76 N. W. “. . . re obligations lations and high between the relator . . and the . school purely board of said strictly district were and con tractual character. . . .” 6 Agreed, “It is Further incorporates this contract herein by reference, to part have same effect as if made a thereof bargaining agreement the last collective entered into and between the Association, Hortonville Education and said School Board, May 8, 1972, subject dated and is to all terms con and bargaining ditions of agreement. such (Individual collective . . .” contract, 1973.) March 7 procedural As safeguards” to “minimal 118.22, Stats., of sec. applying rehired, to not teachers see: Richards v. Board Edu (1973), 444, 458, cation 58 Wis. 2d 206 N. 2dW. 8 Curkeet (1914), v. Joint School District 149, 152, 159 Wis. 149 holding: N. W. this court “. . . thereby School boards have enjoined upon very [sec. Stats. 1913] them extensive duties maintaining the common schools and administering school affairs. inquiry Such duties embrace that of ques- into the
503 Facing duty steps may to . . take as such such necessary” reopen school, to the Hortonville school go appellants (as acted. It not to court now board did only have) injunction, claim it should to seek an not illegal ordering declaring the strike but also teachers under the contract. back to classroom It could have route, required chosen this but was not so to elect. charges prefer did the board of misconduct Neither school against seeking “discharge teachers, their cause” approach, under the contract.10 It have taken this could bring charges that it but it is clear of misconduct did Instead, under the contract. the Hortonville school what personal did was rescind or terminate the service as to all on contracts teachers who elected to remain dissenting-in-part (The opinion strike. “. . . terms this acceptance teachers,” of the breach contract saying thing.) way which is another the same perform obligation tion of of a the failure teacher contract his teacher, they as a if find that a has breached his teacher duty necessary steps may contract it is their to take such as he carry purposes school, out the of the and if teacher failed has perform discharge they his him his duties under can contract from further service. . . .” Stats, 111.70(4) constitutionally (1), (upheld See: See. valid, applied by majority teachers, opinion here), provides: prohibited. Nothing subchapter “Strikes contained in this shall grant by any county municipal constitute a to strike employe hereby expressly prohibited.” such strikes are 554, 557, Scott v. Joint School District Wis. holding: 398, this court “. . . think N. W. We the school board *29 power discharge . the to close . . have the school and the teacher just scope judicial cause. . . .” As to for review of such dis see; charge just cause, Clark v. for Blochowiak 241 Wis. 772, 236, 239, holding, 5 N. W. 2d where board of vocational edu supervisor discharged a cation for cause of its dental clinic after that, hearing, by certiorari a on review the action taken only board, properly matter the court “. . . the could consider properly by on the evidence was whether received the board the charges against plaintiff were sustained.” 504 by
The each communication teacher the board sent by super stated that the board had been informed its your that, intendent of “You in schools have breached engaged employment contract; dividual You have 11 strike contrary unlawful law.” Wisconsin hearings place communication set a time and for whether individual teacher had the em breached ployment contract, possible action, noted that if the facts “. . . termi breach, established such included your employment subsequent nation of A contract.” resolution, adopted by board, the school terminated the employment relationship as to who had teachers been thus notified or of their “. . who had waived notice . alleged employment participation breach of contract and appears in an unlawful strike.” To the it clear writer terminating employer by that the thus board, school employee relationship ground major on the of a striking teachers, such breach of contract was rescinding personal as to all contracts service teaching assign teachers who did return their ments. contract, including
A personal contract,14 service terms, in force in remains accordance with its unless one party inconsistently it “. . duty . im acts with posed upon contract, him which amounts to an every abandonment . ...” However, is not breach consisting perform exactly of a contract of failure to party that entitles the other to rescission. Our court Roger Weihing, President, from Letter for Board of teachers, Education to individual March 1974. 12 Id. 13 Resolution, Adopted by Education, April 2, the Board of p. 2d, Schools, 143, stating: prin 68 Am. Jur. sec. “The ciples governing generally applicable contracts are to contracts employment Thus, for of teachers. such a contract is con personal and, sidered for services one where entered into for term, period definite is an entire contract covered.” p. 2d, Contracts, Jur. 15 17 Am. sec. 482.
505 may party that, has held en not in be before a default titled rescission, to relief of there must be a “so serious by party destroy breach of the contract the other as to 16 objects Or, the essential of contract.” as another phrased performance, it, court has failure of order ground rescission, total, a constitute for must be object “such defeat as to of the contract or render it 17 right unattainable.” The claim of to terminate ground of rescind its contracts its teachers on with properly breach of contract was assertable the Horton- ville school board. But the determination of whether ground breach of claimed contract constituted for such here rescission was for a court to decide.
With the school action found board be a rescission contract, contract, of based on claim of breach of teacher party it that either to the of follows contract had judicial to the recourse courts for a determination whether the breach warranted the rescission.18 With multiple personal cancellations in- service contracts concern, public volved in an area of vital in the case legal obviously remedy inadequate, before is us equity required.19 the aid of a court of It follows might sought by application the school here have equity judicial to a court of a action in affirmation its 16 (1947), 34, 38, v. Danielson N. 261 W. Wis. 27 Hoffmann 759, holding: party may . Before a not this court “. . in default rescission, he the relief of there must entitled to be so serious party destroy of the contract other essen breach objects tial . contract. . 17 Ellison, Grocery &Son Co. v. Co. 69 Va.W. 391, stating ‘“Generally 71 the rule to S. E. be: failure ground performance, rescission, in order constitute total; object must defeat such as to the contract or ” Quoting Ency. Eng. Am. render unattainable. . . 24 & L. 2d, Contracts, p. 603, stating: “Although Am. Jur. see. breach, as a matter of contracts do terminate course on a they may . therefor. . .” be terminable 2d, Contracts, p. 965, Jur. See: Am. sec. 485.
rescinding ground employment the contracts on serious Certainly the by the breach contract teachers. teachers, them, all or one of are also entitled challenge equity a the action taken the court of event, In the issue for the court to deter- board. either by the mine is whether their contracts the breach of circumstances,20 to war- teachers under the was such as terminating em- rant the school action in their board’s ployment rescinding the contracts. The test is their posture case, Case the the test.21 In of this Hoffmann equity for proceedings, but not teachers have instituted opportuni- purpose However, the forth. with above set ty petition pleadings granted, or the amend such proceedings present this instituted can be amended judicial permit whether issue and determination as to justified conduct, circumstances, the teacher the under the action. school board challenge appeal on to an
Also to this court is the Outagamie county county, order the the court Cane, presiding, Thomas included Honorable R. which discharged the orders that school board submit list positions teachers whom board “would offer back” year, for the of the 1973-1974 that balance school striking positions board offer teachers for the balance year of the “. . if and 1973-1974 school . when vacancies striking vacancy arose,” that offered a teachers year accept remainder of 1973-1974 school such juris- appeal appears offer. The issue on to be basic 20 Contracts, p. 977, 601, stating: 2d, Am. Jur. “No hard sec. right cause; and fast rule exists as to the of rescission for usually depends particular on the circumstances of case. 2d, Contracts, p. 980, 503, also: Am. . . .” See Jur. sec. stat ing: party seeking .“. . Moreover a to rescind must show that he obligation free default in relation was from to the which he claims perform. party . the other failed to . .” See also: As to violations justify Husting E. L. v. of contract held not rescission: Co. Coca-Cola Co. 205 Wis. 237 N. W. N. W. Danielson, supra, footnote 16. Hoffmann sitting county equity, diction court, to issue involved, proceedings seek- order. The board initiated the ing limiting activity. picketing a court order Without appeal, pro con, comment on the on or issues raised such appeal (No. writer considers unfortunate such August 1974) Term, was consolidated with appeal judicial here, aspects proceedings that all so involving have, the Hortonville strike at teachers’ could one time and in one and deter- opinion, been considered mined. appeal, applying facts, however,
On this the law to the holding (1) majority in the writer would: Concur municipal employees’ county the no strike Stats., constitutionally statute, (4) (1), 111.70 sec. *32 valid; majority holding open (2) concur in that the the meeting violated; (3) law not here concur in was and holding majority the for reversal remand would and but scope purpose appel- remand, limit the of and such with granted petition lants here to amend their within leave thirty days, petition the and to be amended to raise judicial present of for determination the issue whether justi- teachers, circumstances, the acts of the under these rescinding employment the in the con- school board fied terminating employment.. tracts and part; (concurring dissenting part). in in Hanley, J. majority’s the de- I with the conclusion that concur relating alleged the cause of action to the murrer to third meeting open properly of law was sustained. violation the majority’s ruling reversing respectfully the I dissent to granting summary judgment on the the trial court’s of action. cause first Stats., (4) provides 111.70 as follows:
Sec. prohibited. Nothing this “Strikes sub- contained grant by chapter constitute a of the to strike shall any county hereby expressly prohibited.” municipal employe or and are such strikes 507a exactly it provision means what states.
The above acting concert, Therefore, teachers, the action refusing as a report sanctioned for work cannot be district, court, the school strike either this teach- action of the teachers’ union The teachers. employment. ers constitutes a unilateral breach special meeting April 1974, 2, held a at On terminating employment adopted which a resolution report for Such teachers who refused work. acceptance action contract was breach employment acceptance, relations teachers. that all With Upon terminated. between the board and teachers part the board action termination on the discharge superfluous. no relative There is issue was to be tried. judgment.
I affirm the would I am Justice T. to state Mr. authorized Connor joins in this concurrence-dissent. Hansen following
The memorandum was filed March (on rehearing). motions last Per Curiam page continuing page sentence on on 483 of 66 Wis. is revised as follows: and “Whether master contract the board between Hortonville Education Association the contracts are between individual school the board teachers *33 comparable to in other contracts involved cases where striking discharged disciplined or cannot teachers were determined from the record in case.” this rehearing Motions for are denied without costs.