*1 P.2d 1153 KOLP, Plaintiff-Appellant, James W.
BOARD OF OF BUTTE TRUSTEES
COUNTY JOINT SCHOOL DISTRICT Lowe, King,
NO. 111 and Ronald Steve
Jerry Pancheri, Marvin Jardine Proctor, Douglas members said
board, Defendants-Respondents.
No. 13109.
Supreme Court of Idaho.
June 1981. Denied
Rehearing June
chairman appellant notified of the decision to terminate his contract.
Following
dismissal, appellant
his
filed a
complaint in
requesting
district court
a writ
of mandamus for reinstatement as a teach-
*3
er
attorney
court,
fees. The district
following a review
proceed-
of the board
ings, determined that the board of trustees
had based its
finding
decision
appellant’s conduct was in violation of the
past adopted
district’s
Teacher’s Handbook
and in violation of the
Code Ethics of the
Teaching
approved
publish-
Profession
the State Board of Education. The
court found that
the board
estopped
asserting
validity
from
of the handbook
as a basis for the teacher termination be-
distribute,
cause
past
failures to
enforce
update
the book. The court further
found, however,
pursuant
statutory
authority the board properly discharged the
teacher for violation of the Code of Ethics.
costs,
The court concluded that
including
Johnson, Boise,
Byron J.
plaintiff-ap-
fees,
attorney
were not allowed to either
pellant.
party. Kolp appeals.
Clair, Hiller,
T.
Richard
St. Clair of St.
The role of the judiciary
settling
teach-
McGrath,
Falls,
Wood &
Idaho
for defend-
discharge disputes
er
appears
largely
to be
ants-respondents.
Contributing
misunderstood.
to this is that
DONALDSON,
there
specific
is no
statutory
Justice.
delineation of
judicial appellate review for teacher dis-
Plaintiff-appellant
Kolp ap-
James W.
missals made
the board of trustees of a
peals the district court’s denial of his re-
school district. See Bowler v. Board of
quest for a writ of mandamus compelling
Trustees,
537,
101
(1980).
Idaho
323
“only
seeking
p.
when
party
the writ
559. Here
because
record fails to
right
legal
‘has a clear
to have
disclose
improper
an act
such clear evidence of
reason,
motive,
performed[,]
against
capriciousness
..
the officer
.
invalid
arbitrariness,
sought
finding
whom
the trial court’s
duty
the writ is
has
clear
to act
abuse of
cannot be
... and .. .
act be ministerial
discretion
sustained.”
require
and not
exercise
of discre-
Marcum,
232, 236,
Wellard v.
Idaho
Richey,
413,
tion.’
Saviers
482,
(1960).1
It has also been held
415,
1285,
(1974);
529 P.2d
see I.C.
mandamus will lie
in those cases
7-302.”
plain, speedy
where there is not a
and ade
quate remedy
ordinary
course of law.
Wyckoff
County
v. Board of
Commission-
7-303;
I.C.
District Board
Health v.
ers,
101 Idaho
Chancey,
(1980);
Cooper
County
see
v. Board
Com-
*4
missioners,
407,
101 Idaho
It has been that a broader ac established a local quiesced subject parties, board’s act is all which of discretion to an examined the proceedings extensively to additional area in a determine inquiry mandamus whether the local board action was request. substan reviewing application In an tially supported by the evidence and wheth brought compel a board of trustees of a er the ultimate arbitrary decision was school, reopen school district to this Court capricious. is of the held: that this approach broad was inappropriate “Proceedings nature of this for writ of because the use to compel of mandamus mandate, are not available to review the presents reinstatement a limited oppor but respect acts of boards in to matters as to tunity judicial for of a review board’s ac they discretion, which are vested with tion. clearly appears they unless it that arbitrarily acted We unjustly and in hold that the standard review in a request abuse of the discretion vested in for writ to compel them. of mandate rein- 133, 55 p. following C.J.S. statement Mandamus 223. The a teacher termination § by a school affairs school board to an being placed in the districts is limited examina- tion of guidance party seeking under the whether the the writ control trustees, has a legal right per- clear to have an act necessary it is that a broad dis- formed, and whether action basically cretion be is accorded them exercise their ministerial, authority discretionary. If efficiently. discretion- 47 Am.Jur. Schools, 328; ary, lie mandamus will not unless it 47, clearly p. People ex rel. Ball appears that Johnson, the board has acted arbitrari- 1950, 423, Ill.App. 341 ly, unjustly and in abuse discretion and N.E.2d 444. plain,
there is speedy not available other adequate remedy ordinary course “To capriciousness establish or arbitrar- Court, appeal of law. On to this it is our iness part requires on the of a board more standard, apply task to this thereby same conjecture assumption, than or but must constrained to the limited same review of shown, clearly being presumed be it that the board’s actions. public abuse boards do not their discre- tion and act from motives and Initially, applying the above in the reasons; 324, valid case, 55 C.J.S. Mandamus context of discharge a teacher we hold duty 1. It must be noted that 55 C.J.S Mandamus of his under that it the law can be said he provides § 133 also a review based has in fact so far discretion abused such that he discretion, allegation only neglected of abuse has exercise refused to discre- clearly apparent Thus, must such abuse be but also tion.” Id. at 223-224. standard of proof judiciary high exception “before the will interfere such a is the rule is clearly appear severely case, case it must that such point- officer [or limited. In the instant as departed infra, school has so from the board] far line out has not been standard met. ing regards procedural aspects regard that as of a well immediacy action, its availability primary board’s there is alternate ade- as one of its vir- tues. quate remedy seeking The basis for mandamus— available mandamus is is, approach default of a expedient performance correct resolution of course, duty commonly long will if, apparent such matters the other above — damages fact listed in review are also ob- before the and amount limitations likely can It be established. is served. We nature so hold because aggrieved delay will not party wish to relationship of the contractual between on the issuance of the coercive decision and a teacher school board determined writ until the issues relevant both state law estab- and federal damage claim can tried.” procedural requirements lish certain A tenured can- discharges. teacher teacher 900, Heaney Trustees, v. Board of 98 Idaho discharged showing not be without a 498, (1978) (citations omit- -1212, 33-513(4), -1208, cause. I.C. ted). Thus, procedural require- §§ because -1215; -1213, v. Joint Dis- Robinson School clearly expedi- ments so delineated and are desirable, unobtainable, trict No. ency, otherwise Trustees, (1979); Ferguson v. Board of appropriate proceeding is an Terms ne- reviewing procedural aspects of the professional gotiated a teacher’s between board’s action. incorpo- board are *5 association and a school However, discharge a usu teacher Buhl existing
rated into teacher contracts. only proce ally separated can be into not v. Joint School Dis- Education Association and components, dural but also substantive 16, 607 No. Idaho trict a dis quite is when a different matter (1980). rights are also Statutory embodied remedy to a substan charged teacher seeks implicitly in a teacher’s con- included tive, the procedural error in than rather tract. Robinson v. Joint School District No. determining Firstly, board’s decision. teacher be dis- supra. Before a can cause to dis whether is sufficient there adequate he notice charged, must be teacher, the board is charge a school date, hearing an charges the and the of act, is in a “ministerial” but performing to his case at opportunity present a formal statutory function performing stead his hearing, and a of reasons for statement the of discretion” “require[s] exercise Trustees, of discharge. Bowler v. Board not lie. ordinarily will for which mandamus Trustees, of supra; Ferguson v. Board su- discharged Secondly, the Wyckoff, supra. pra. process The due clause the four- remedy at adequate have an teacher does to the United States teenth amendment He error. law resolution substantive provides proce- an additional Constitution appropriate action for may bring an civil overlay rights the of a protecting dural statutory or con breach his contractual seeking discharged Id. teacher teacher. A Bowler, See, supra; e. rights. g., stitutional remedy regarding proce- such to error also, Intermountain g., see e. Rosecrans v. speedy legal recourse should have dures Inc., Idaho Soap Co. & Chemical do available to so. Thus, teacher is if the school summary expedi- the action of the seeking to contest “Mandamus is a merits, action is of an board mandamus compel performance writ on tious to party inappropriate.2 seek- . .. and duty, established (action city (1973) compel inappropriate to to to con- P.2d 792 is 2. A mandamus action discharge building permit); is v. Bd. of Health a teacher on merits. issue Dist. test however, may county say, (action compel mandamus never Chancey, supra, not to to aspects of a district); substantive be used to review the public Wellard health board to fund a by In cases or officer. those decision board Marcum, (action compel supra su- school v. plain, speedy appear a there does not school). where reopen perintendent and district ordinary adequate remedy course and law, Heaney Additionally, as this Court noted may proceeding be the cor- a mandamus petition Trustees, supra, Bd. mandamus See, rect, remedy e. available. if not the joined appropriate civil action McCoy, Ready-To-Pour, g., Inc. v. discharge tinue until as Having ap mandamus is such time is ef- held that remedy procedural employee errors or reinstated.” propriate those fected plain, which there is not available The in its memorandum district court noted remedy, speedy adequate legal we now Legislature granted “that specific to the raised on turn issues absence, power leave of suspend, grant appeal. The first is whether board’s discharge place probation or in the dis- improper procedurally action was because junctive. Nothing in the statute indicates suspend board failed to the teacher suspend the school district must prior discharge required statutory empowered teacher to discharge before it is prescribed authority procedures ours). teacher.” (Emphasis Board of Education. This is an area State We district agree with the court that the inquiry well suited for resolution within 33-513(4), is writ- statute, controlling I.C. § parameters of a proceeding. not mandate ten in and does disjunctive statute, applicable then I.C. Moreover, suspension discharge. prior to Sess.Laws, 33-513(4), 86, p. ch. § procedure prescribed by the State 295, gave powers the board duties: 307.2 Board of Education does not suspend, absence, “To leave grant suspension definitively prior mandate probation discharge place on or certificat- Therefore, discharge every case. we af- professional personnel for continued firm the district court’s conclusion that sus- regula- violation of rules any lawful pension prior discharge required tions of the board trustees or of and that compliance there was substantial education, state board of or for any con- with procedures prescribed relevant duct grounds which could constitute deprive 307.2 the appellant so as not to teaching revocation of a certificate. No process due of law. professional employee certificated shall The remaining pertinent issues in this discharged during a contract term ex- appeal center the substantive ques- around *6 cept procedures prescribed under by the tion was of whether there sufficient cause state board of education.” to discharge Appellant the teacher. con- The State Board of Policy Education Manu- tends that the the board failed find nec- provided al for Public Schools in part: essary degree of willful violation of the “307.2 FOR PROCEDURE SUSPEN- Ethics, Code of portions that the code are AND SION DISCHARGE OF CERTIFI- vague, that unconstitutionally there is no CATED PROFESSIONAL EMPLOYEES support substantial evidence the dis- DURING CONTRACT TERM charge and because there insubstantial superintendent, “The acting as the autho- evidence, acted arbitrarily the board representative rized the board of trus- capriciously discharge. Respondent tees, may suspend profes- a certificated raises in reply whether district court employee sional under contract verbal incorrectly corporal punish- found that notice which writing shall be reduced to regulation ment in the Teachers Handbook succeeding day. not later than the Such was not in full force effect. suspension (1) shall be limited to contin- issues, We any regu- remaining ued violation of rules or find these lawful concerning handbook, lations of including the board trustees or the those education, (2) state board of inappropriate for consideration a man conduct which grounds could constitute proceeding. damus issues are substan teaching for revocation of a certificate. nature, tive raising questions essential “Suspension employee regarding discretionary performance of an under con- precede discharge, statutorily tract shall and the board’s authorized sal- function. ary suspended employee of the may compel only shall con- Mandamus lie to ministe- is, proceeding, claims, one if the are teacher seeks distinct and the trial of the two necessity procedural may contest both the and substantive issues have to be severed. aspects However, they of the board’s action. acts; may rial not lie to control the and adequate remedy in the ordinary course discretion of a board. Wyckoff, supra. See of law. We note availability rule, upon The limited inroad that man- teacher discharge appropriate cases of other may clearly damus lie if there has been an civil actions ordinarily preclude discretion, presents, abuse of as noted above substantive merits discharge of the from one, in footnote a high proof. standard of being raised mandamus. Moreover, pointed out, as has been substan- Accordingly, applying this standard generally tive issues are not appropriate us, to the facts before find areas of consideration in a pro- discharging ap school board’s action in ceeding and are to be considered if pellant upon valid statutory based au adequate legal remedy is unavailable. thority, 33-513(4), initially I.C. which de board, Appellant contends that the requisite rights lineated the and duties of acquiescence itself manifested in the admin- board; complied teacher and the board corporal punishment, istration of acted arbi- procedural technicalities of the dis trarily capriciously sanctioning him charge; discharge and the itself was an using corporal punishment. con- discretionary authority exercise of carried tention calls substantiality into nonarbitrary out in manner. Based supporting discharge evidence foregoing, procedural we find no infir and raises a substantive issue which mity and we therefore affirm the district unless, not be considered in mandamus request court’s denial of the for writ of set out in the preceding paragraph, no other mandate. To the extent the court conduct adequate legal remedy is available.3 discharge ed its review of the proceedings up, above, sum as we held To application in line with our of the enunciat application standard of review in an applicable ed standard of review in manda writ of compel mandate to reinstatement mus, the court did not err. To the extent following a teacher termination a school the district court further looked into the board is limited examination of components substantive of the teacher ter whether party seeking has a writ mination, However, the court did err. ap legal right clear performed to have an act plication review, standard of and whether the basically action is ministe above, provides as set out support sufficient rial, not discretionary. discretionary, If regardless for the denial of the district mandamus will clearly ap not lie unless it court’s excursion into substantive issues. pears that the has arbitrarily, board acted unjustly however, and in abuse of This Court recognizes, discretion and *7 there plain, is not available other speedy parties below, and the court times, apparent eight 3. If “paddling” having the board without cause had not such been ad- simply exercised trarily discretion at all and problems arbi- ministered for failure to work on a appellant sanctioned the for his use of Notwithstanding personal blackboard. their corporal court, punishment, a in consideration concerning physical punishment views mandamus, request classroom, of a other for if there were no which the individual members ex- available, adequate remedy proper- could pressed prior in voir dire of to commencement case, however, ly intervene. In the instant and, hearing arguably, the termination indicate board, school in its letter of termination to Mr. degree punishment a consensus of that some Kolp, said: board, nonetheless, acceptable, was deter- corporal punishment beyond did administer Kolp’s “[Y]ou mined that Mr. behavior went beyond legitimate prudent upon bounds any acceptable level. students... simply This is a not a matter of whether judged “Such was inexcusable. behavior ministerially board clearly act or acted or failed to inability successfully specific An cur- work Appellant’s con- abused its discretion. requirements phys- riculum does not warrant tention that there was abuse calls into ical achieve- abuse as a stimulus to academic board, whether the exercise of in a deliberated ment.” discretion, supported by its was evidence it, Moreover, the had evidence before board discharge. presented which cause to sufficient believe, stu- which it was entitled to that one inquiry outside This is an area of substantive times, an- dent other more than ten times and a third struck more than sixteen general scope of mandamus. about faith, request of to see limited nature Denial good failed writ of mandate procedural both and sub of mandamus and affirmed. disposition The district court’s We argued were and tried. stantive issues matters scope outside the of review for mandamus, disposed procedural issues. In above, as set out is reversed. justice, we remand that interests Case proceedings remanded further portion dealing with the case the sub accordance herewith.
stantive
the district court with
issues to
No costs.
attorney
No
fees.
grant
directions to
a trial
novo.4
de
Cf.
Commissioners,
Cooper v.
County
Board of
BAKES,
J.,
McFADDEN, J.,
C.
con-
(Bakes,
supra
J.,
concurring
cur.
rehearing).
SHEPARD, Justice, specially concurring.
That trial
present
a
forum for
I
disposition
concur with the Court’s
examination of the
discharge.
causes for the
affirming the denial
the writ of man-
The teacher would have the burden of
applaud
date.
I
majority
the efforts of the
proof. The board’s decision would not be
clarify the
role of the
judiciary
teacher
binding on the court.
discharge disputes.
I do
quarrel
not
One further
issue is before this
majority’s
petition
conclusion that a
pursuant
to I.C. 1-205
§
which directs
a writ
of mandate
allowable
a
granted,
when new trial is
this Court
remedy
aggrieved
aby
one
board’s fail-
shall determine all pertinent questions of
ure to
statutory
guar-
abide by
procedural
law presented. The district court held that
antees.
the Teachers Handbook was invalid. The
However,
majority,
opinion,
in my
court stated that one reason the handbook
continues the
obfuscation of
function
in force and effect was because of
a writ of
majority begins
mandate. The
its
provisions
33-506,
of I.C.
analysis by noting the traditional and ortho-
interpreted
court
requiring
that each
dox rule that mandamus will not lie unless
board, annually, must make its own rules
parties
seeking
a
legal
it have
clear
regulations.
anis
erroneous inter
right to
performed by
have a ministerial act
pretation.
Idaho Code
grants
33-506
person
a
or body
legal duty
under a clear
authority
board the
by-laws,
make
rules
perform the act. The writ will not lie to
regulations
government
for its
and that
coerce or control discretion. That rule was
of the district. The section
require
does not
set forth in
Smylie,
Allen v.
annual exercise of this authority.
Just as
many
and is based
legislature
the state
does
annually
re
the older Idaho cases cited therein and
Code,
go
write
Idaho
through
even
Pyke
Steunenberg,
dates at least from
V.
formality
law, so, too,
adoption
past
sought imposed concurring to in and dis- be dissenting That berg, supra, Justice. senting. Darby in v. argument
same was advanced 697, (1910),
Pence, P. 484 but 17 Idaho I. stating: the Court rejected by was there agreement I am in with that statement in to this case applied “The rule as correct recognizes Court’s which a that in Field was announced Justice discharged presently teacher is to entitled Christensen, 137 U.S. Crowley case of v. “bring an action for breach of contract 620 as follows: 34 L.Ed. S.Ct. seeking monetary damages either or rein- regulation of and extent ‘The manner statement, The is or both.” statement governing in discretion of the rest simple sound for the reason that it is well authority. authority may vest in That is relationship settled that there a between may as it deem such officers teachers, a its that school district and and upon applications of power passing one It relationship is of contract. is also on, to carry it issue permission jurisdiction in this that is well settled there a purpose. that It is matter licenses for but one action. An action form civil many As legislative only. will in its predicated upon alleging contract and cases, may always exer- officers long is a civil action. It has breach such upon them with power conferred cise that writ statutory been the law Idaho justice parties affected. wisdom or to the action, may in a civil of mandamus issue does not af- But that a matter which is ” jury bemay same civil action a that authority the state.’ fect the damages which are impaneled to assess may issue theory that mandamus years over now claimed. For of dis- where the involves the exercise act require plain- which pleadings had notice discretion exercised ar- cretion judgment relief tiff demand capriciously appears or bitrarily, unjustly entitled, which to which he deems himself Idaho in the case of Wellard have arisen in sever- relief be alternative Marcum, P.2d 482 v. 8(a)(l)(3). al types. different Rule any consideration without eases, solely earlier Idaho but reliance instituted a civil action. His Kolp Mr. I, too, upon Corpus Juris Secundum. must apprise were sufficient allegations share the blame for the later continuance that his defendant school district claim Wyckoff doctrine in Board Coun- contract, breach based and claimed Commissioners, ty Kolp prayer thereof. In his relief sought po- to his contractual reinstatement Having my I ways, now seen the error of teacher, “such other and fur- sition of a writ of that the function would observe just ther relief as to the Court shall seem performance require is mandate equitable,” certainly would be —which non-discretionary act ministerial and damages. It is monetary inclusive of true legal right. petitioner has a clear seeking in his civil reinstatement review the exercise It not be used to should by way action he claimed reinstatement argued is that discretion is of discretion. It equally But true that mandamus. it is “unjustly,” “ca- abused when it exercised just equitable relief” could in- “other “arbitrarily,” and hence priciously,” or mandatory injunc- clude issuance of a If such is to subject be review. should his directing tion reinstatement. done, accomplished by plac- should argument, Kolp’s At oral counsel had courts, authority in our specific such ing scarcely presentation commenced his when thereby the courts keeping mind the bench confronted with a from (or perhaps supreme) school super become *9 asking if was here a rem- mandamus my In zoning authorities. super and boards point edy, although I do not see that pervert- by be done should not judgment, it by extremely all able counsel was at raised great the purpose of and ing the function the Earlier decisions school district. extraordinary writ of mandate. and Harris, Court tended to indicate tentions. See certainly from this Matheson that proper. 758, 759, own view at My (1977): that it was “We hear this time, since, changed and which has not presented by parties case as us the to us, propriety that issue not before the to might decline rule on what outcome be event, although Kolp’s specific and in legal dictated under other We theories.” use mandamus was unfortunate of the label should reverse a trial court for his fail- (as show), Kolp was to the Court’s ure to follow which are now rules be rein- might still nevertheless entitled to being promulgated. of be in necessity statement —which would Probably vestige there remains at least a injunction. mandatory the form of Other of a distinction between mandamus and mandamus, I than a writ of know of mandatory injunctions simplifica- since the way compel to a school to district tion the pleading. of rules of The United mandatory reinstate teacher than a in- Supreme States Court in Stern v. South junction. Co., Chester Tube 390 U.S. 88 S.Ct. mention, propriety As I the issue has seemingly L.Ed.2d 177 not- Court, by sponte, been the sua raised the might distinction continue briefing do not the benefit of the public where named defendant was a which, argument from my counsel hum- private person. officer rather than a What- opinion, ble extremely would be valuable ever regard, the answer in that where the Court it public concludes is in the simplification pleading of our rules of does develop interest to new some rules of law. plaintiff being result ain allowed in a sin- At the least the Court should have set the gle civil action breach of contract reargument; matter down for a more in- seek, against a school to district in addition might formed Court have well resulted monetary damages, under reinstatement opinion. best, more unified At the how- and, provisions the if mandamus not availa- ever, accept the Court should the the case in there, general ble under the rules attendant posture in which it par- came to us. Both Where, here, mandatory injunctions. as ties in proceedings below were represented Kolp’s right to reinstatement was heard counsel, by able and their contentions and determined, parties the raised no presented evidence judge. an able trial claimed,1 remedy could Error has been distinction as to whether and our review passing should be limited to way on those con- as contradistin- by attorneys ap- 1.Other than claims for fees on I. peal, presented by par- correctly issues the stated District “Whether the pre-discharge procedure ties were: that the uti- found by the of Trustees accorded the lized Appellant Board Appellant Kolp: process of due law. discharge “1. Was the Board’s II. improper teacher suspend because of the failure correctly “Whether the District Court prior discharge, the teacher found sufficient evidence before the Board of notices, required including written February hearing at Trustees reasons? Appellant. support discharge discharge Was “2. the Board’s III. improper teacher deci- because Board’s correctly “Whether the District Court sion failed to find was in teacher corporal punishment provision that the found in ap- violation wilful of the Code of Ethics proved the Teachers Handbook was not full Board of State Education? December, force and effect in discharge Was “3. the Board’s IV. teacher for violation the Code of Ethics correctly improper specified portions “Whether the District Court because Appellant discharging found that the question had not the code used waived the Board Constitutionality unconstitutionally vague? were of Idaho teacher 33-1208(h) plead Was failure to it be- “4. there substantial evidence Code fore trial, timely support discharge vio- teacher for asserts after the trial. two lation of standards the Code of Ethics? V. arbitrarily correctly ca- “5. Did Board act “Whether the District Court priciously discharging 33-1208(h) the teacher?” found Code constitution- Respondent School District: al.” *10 330 relief, injunctive, rights I
guished
mandatory
or
liberty
property
from
are in-
volved, although
clearly
case
the evidence
es-
decide the
submit
should
findings
it,
wrong
tablishes that the
are
saving
day
for another
we received
invaded,
rights
constitutional
have been
of the issues
and another case the resolution
to place
rights
mercy
is
those
at the
of
laboriously
by three
today so
undertaken
seriously
administrative officials and
to
of
without the benefit
members
the Court
impair
our
security
judi-
inherent
in
argument
counsel
any briefing
of
or
from
safeguards.
prospect,
cial
That
without
who
parties
or
involved
from interested
agencies,
of administrative
multiplication
come in as
curiae if afforded
might
amicus
lightly
is not
to be
Id. at
regarded.”
one
opportunity.
52, 56
at
S.Ct.
726.
II.
may
While it
be that
this Court once
agencies
expressed the view that
were vest-
Much of what is contained in
Court’s
subject
ed with absolute discretion not
opinion
overly
sharp
broad and in
con-
mandamus,4
judicial
through
review
there is
may
the law
have been
trast
what
longer
justification
rule,
any
no
for such a
time,
of
un-
thought
be. Shortness
analysis
either from a
or from a
historical
indulge
reshaping
willingness to
in
First,
logical
the historical
examination.
law,
without
benefit
counsel’s
which led to this ministeri-
foundations
briefing
argument, precludes me from
dichotomy
al/discretionary
longer
are no
offering
as mere
following
other than
valid:
developed
thoughts
may
which
be
. .
“The
makes clear .
that the
rehearing
will
petition
surely
which
fol-
real
for the
motivation
decision [that
low.
discretionary
will not review
deci-
courts
limiting
today, by
The Court
the standard
judicial
the idea that
review of
was
sions]
a mandamus
of review in what
terms
discretion
exercise
administrative
action,2
judicial
has vitiated all
review
was
was
The Court
actuat-
undesirable.
discretionary
ade-
decisions where
something
other than
quate legal remedy exists.3 The fears
‘The Court could
when it said:
doctrine
ex-
such
discretion were well
uncontrolled
appeal from the decision
not entertain an
v.
pressed
Joseph
Yards Co.
St.
Stock
Secretaries, nor revise his
of one of the
States,
56
80
United
298 U.S.
S.Ct.
judgment
where the law au-
any case
(1936):
1033
L.Ed.
discretion,
him
exercise
thorized
agencies,
varying
“Legislative
judgment....
The interference of the
peculiarly
work
a field
qualifications,
performance
with the
ordi-
Courts
may
political
demands.
exposed
Some
nary
departments
duties
the executive
expert
impartial, others subser-
be
productive
would
government,
be
for them to
vient.
It
is not difficult
mischief;
are
nothing
but
and we
law
requirements
giving
observe the
power
that such a
was
quite satisfied
But to
hearing
receiving evidence.
be
never
intended to
them.
us,
findings
Upon
very subject
of fact
the in-
say that
their
before
terposition
might
of the Courts
throw the
where
constitutional
made conclusive
requirement
today
1 that
states
ministerial
advocated
holds in its footnote
2.The Court
Shepard.
departed
Justice
from
the officer must have “so far
duty
that it can be said he has
line of his
...
mainly
apply
he has
board
far
such discretion that
This
local
deci-
fact so
abused
neglected
discre
sions which do not fall under the A.P.A.
or refused to exercise
stringent
is much more
tion.”
standard
discriminatory
capricious,
arbitrary,
surrounding
than
4. The confusion
Pence,
Darby
used in
of discretion standard
v.
Idaho
or abuse
evident as far back as
697,
see,
past,
Smylie,
(1910). Although
g.,
e. Allen v.
the Court in
P.
Marcum,
(1969);
the coun-
P.2d 343
Wellard
that case held that it
bound
decision,
quoted
cases
and it would
cil’s
it cited and
several
would lie to
could
held that mandamus
where such standard
had
a rare case indeed
Indeed,
seemingly rein
control an abuse of discretion.
this standard
be met.
*11
331
fund,
626,
(Sullivan,
J.,
subject
cation
ministerial requirement
is evi-
(1965);
istrative
Byse
Action 181-83
&
dent,
as demonstrated
the first decision
Fiocca, supra;
Mandamus Administrative
of this Court
issue,
considered
Approaches,
Actions: Current
1973 Duke
Pyke
Steunenberg,
v.
5 Idaho
protection.”
IV.
This leads to final my area of concern— weight given to be the decision of the proceeding,
Board. In a in an review,
A.P.A. the decision Board given e., weight, considerable i. question would be whether the Board had abused its discretion. In a contract BURLEY BRICK AND SAND COMPA- action, however, under the standard enunci- NY, Corporation, an Idaho Court, ated decision Plaintiff-Appellant, Board is absolutely presump- entitled to weight.8 tive simply The Board is one of the parties to the contract. Whether the COFER, Individually, Vera A. heir and as Board breached its contract will deter- Cofer, Deceased, at law of Paul E. mined the finder-of-fact as an initial Defendant-Respondent. matter, without deference discre- tion of the No. Board. While I believe this 13639. law, correct
result is under current it raises Supreme Idaho. policy legislature substantial issues that the may wish to consider. June 1981. legislature
The in I.C. 33-513 carefully
provided procedural process due to teachers legislature
threatened with dismissal. The not, however,
did explicitly provide a means judicial review of the Board’s decision.
By holding that method test
the substantive through decision is a breach action,
of contract placing this Court is
power over hiring firing teachers
courts rather than in school boards. A
court and school board have different example, given 8. For the district noted in court its to the Board’s decision to believe the just that the Board could have believed the consider students and whether there was many they students’ version of how times were cause that he hit the students sixteen hit, rather than the teachers. But in a contract times. action the trier-of-fact will determine whom to believe, and if the factfinder chooses to believe legislature provide could that all teacher teacher, then the will be whether incorporate providing provision contracts just hitting there was cause to fire him for specific type judicial review. six children times. There will be no deference