*1 61,137 No. Leaming, Appellant,
Larry No. School District v. Unified Timothy Appellant, Larry Leaming, Appellee, v. Dr.
Rundus, Appellee. 1041) P.2d
(750 Opinion filed February Calvin, argued Ulysses, Nightingale the cause and & Nightingale, of Evan appellant.
was on the brief Bend, cause, Berscheidt, argued Ward, and K. Great Jerry & M. of Ward Boelte, Ulysses, Kimball, Hathaway, was with him on & Kimball Mike appellees. brief for was delivered the court opinion Larry Leaming, brought by action This is an Prager, C.J.: 214, Ulysses, Kan- District No. teacher, School against Unified teaching contract and of his wrongful termination sas, alleging provide a board to by failure of the school of due denial action, sought In this required by law. hearing as fair in- punitive, and an compensatory and damages, recovery of pro- as a teacher and plaintiff s reinstatement requiring junction terminating his contract. from school board hibiting the superintendent, action, against the school brought separate In a recovery inter- for tortious Rundus, sought Timothy Dr. court entered The district teaching contract. ference in each defendant in favor judgment appeal. brought a consolidated basically dispute and in the case are not facts essential
are as follows: the school No. 214 for employee of U.S.D. Plaintiff pursuant 1982-83 ato written contract dated May 11, 1982. spring Williams, In the Caroline Arrott Patti *2 214, qualified
high students in U.S.D. No. for the Inter- (ISEF) meeting Albuquer- national Science Exhibition Fair Mexico, May 9-14, que, superintend- New to be held 1983. The Rundus, Timothy ent of U.S.D. No. Dr. was informed that plaintiff, Larry Learning, grade teacher, a seventh science accompany girls intended meeting the two in Albu- querque. Learning request Since had not made a formal to be in meeting, attendance at the Dr. Learning Rundus contacted on 3, 1983, May Learning and advised Dr. Rundus that he intended meeting. He was to attend informed Dr. Rundus that he teaching responsibilities and that he would given not be permission go the fact that girls the two were not under jurisdiction. his Learning He also told that there was a lack of planning poor and communication with building principal concerning and the trip. administration (3) May 5, 1983, again On advised superintendent that he would not be trip. allowed to make the perfectly Plaintiff stated that he understood quite and it was him, go anyway. clear to but that he intended to He was informed unacceptable that this was and he was encouraged to consider alternatives, carefully the but that if he go, resigna- chose to his tion should be submitted to U.S.D. No. 214 p.m. May 4:00 6, 1983. 7, 1983,
(4) May On superintendent called the and advised him that it was his intent May 9, 1983, to leave school on superintendent to attend the science fair. The urged him to encouraged reconsider him to have go. someone else Dr. that, go Rundus told if he did submitting without resignation, Rundus would make a recommendation to the board suspended, of education that he be or that the board make some arrangement concerning other obligation contractual with the superintendent district. The advised the possi- that the consequences (1) ble of his action suspension were from teach- ing (2) pay; pay duties without forfeiture of for time absent from duties; nonrenewal of his contract. superintendent Plaintiff contends that the told him that he would recommend to the Board that he suspended for two weeks pay. (5) Plaintiff left to attend the science fair at 8:30 on the 9, 1983, morning May and a substitute teacher was secured to teach his classes.
(6) Plaintiff admitted that he committed an act of defiance supe- toward the administration of U.S.D. No. and that his rior, superintendent, made a statement to him that he was not anyway, to attend the science fair. He went notwithstanding that jeopardy. he had been advised that his contract would be in signed Plaintiff admitted he a contract with U.S.D. No. agreed obey 214 in which he regulations the rules and board of education and the superintendent directions of the obey schools. He also admitted that he did not the directions of superintendent attending defied him in the science fair May the week of
(8) 12, 1983, May superintendent On of U.S.D. 214 No. sent a plaintiff advising letter to the him that inquiry as to his alleged duty by breach of as a teacher would be held the board of May 16, at 7:45 a.m. education 1983. The letter advised the plaintiff presence that his expected was for the purpose of establishing the concerning facts his absence from work and that would at concerning decisions be made that time his status as a teacher.
(9) 16, 1983, May special meeting On at a of the board of 214, present education of U.S.D. No. the six members unani- mously plaintiff terminated the s continuing contract 1983-84 on the basis of the s violation of the contract terms.
(10) 16, 1983, May pursuant On K.S.A. 72-5437 and K.S.A. 72-5438, (Note: was notified of the termination. Ensley hereafter all relevant statutes are cited the 1980 statute book.)
(11) 27, 1983, May pursuant 72-5438, On to K.S.A. requested by hearing the matter be heard committee and designated Melvin Wilson as a member of the committee.
(12) designated hearing U.S.D. No. 214 Richard M. Pickier as a member, designated Larry and committee and he Melvin Wilson Kepley, to act as chairman of the committee.
(13) 20,1984, January hearing pursuant On was held to K.S.A.
746 Testimony hearing
72-5442 committee. was recorded and parties. was afforded all cross-examination Upon request agreement and a continuation 20, 1984, January hearing granted was a second plaintiff appeared was held on March testified. The was recorded and cross-examination was parties. afforded all 31, 1984, Subsequent on March opinion finding following:
committee rendered a written Larry Learning employed by a. That was U.S.D. No. contract; written Timothy Rundus, superintendent that Dr.
b. of U.S.D. No. specifically Larry Learning attending forbade from an ISEF Mexico, meeting Albuquerque, May 9-14, 1983; New Larry Learning personally c. that knew he was not to attend the knowledge above function and such specifically thereof was personally by Superintendent communicated to him Rundus; despite forbearance, Larry
d. that such directive of teaching position left his at U.S.D. May No. 214 between report teaching position and did in U.S.D. No. indicated; during the dates Larry Learning e. that violation of his obey regulations in that he failed to the rules and of the board obey and that he failed education the directives of the 214; superintendent U.S.D. No. upheld
£ that this and sustained the de- terminating U.S.D. cision of No. the 1983-84 *4 Larry Learning. contract of
(16) The recommendation of the committee was sub- defendant, mitted to and U.S.D. to No. 214. (17) request Plaintiff did not the board of U.S.D. education of provide opportunity No. 214 to him with a or the to subsequent receipt submit a brief commit- tee’s recommendation. appeal provided by Plaintiff did not the district to court as separate
K.S.A. but instead filed a action. 17,1987, April findings On the district court issued its and upon judgment which was entered in conclusions favor of the against plaintiff. the defendants and
747 held, substance, grant summary that it could court The trial the basic facts in the were judgment to defendants because case as a matter of law that had not undisputed and showed and, furthermore, process hearing plain- a denied been clearly showed that had violated tiff s evidence the a teacher and the board of education had contract as teaching contract. terminate which, issues the in sub-
Plaintiff raises several on stance, position granting the trial erred in take the court summary judgment against plaintiff and in favor of the school the Dr. Rundus for reason that the record raises district and to whether was denied factual issues as the substantial rights process under the Kansas Due Process Pro- certain due (K.S.A. seq.). Act 72-5436 et cedure case, considering specific issues raised in the it
Before helpful concepts principles certain and to review basic would pertaining to termination of tenured teachers as of law seq. provisions are provided by K.S.A. 72-5436 et The basic depth opinion in this in Gillett v. U.S.D. No. court’s covered (1980), pages 605 P.2d which states opinion: 75-77 of the outset, be stated that the dismissal teachers and
“At the should complex, difficult of their contracts sometimes a nonrenewal that, implications. statutory proce Because of the fact under the with serious dures, requires long a and nonrenewal of teacher time-con dismissal or suming effort, are often reluctant school administrators boards education procedures ought against who As a teachers be dismissed. institute such hand, quality in the of their education. On other result students suffer fairly past been and have been dismissed at in the have not treated teachers times procedure good As reason. a result of the or nonrenewed without seeking being legislature now teachers are established rights by determining involving protection In cases of their courts. afforded contract, obligated the courts are of a the dismissal or nonrenewal board, teacher, rights rights rights and the school consider the proper atmosphere. quality in a receive education the school children to decision, presented provide every challenge is to court such board, equitable with a minimum and to the school both to teacher fair disruption opportunity for children. See of the educational amount Jacob- Teachers, Non-Reemployment L. sen, Sperry, Jensen, & & The Dismissal J. (1972). & Educ. unjust providing protection at some tenured teachers from least “Statutes
748
many years.
dismissal have been in existence in Kansas for
Teachers
other
and
professional
employed
public
systems
having
employees,
in
school
in cities
a
more,
120,000
provided
by
population of
or
were
tenure
in
inhabitants
statute
1949, 72-5401
Education,
(G.S.
seq.).
1937
et
In Million Board
of
(1957),
purpose
(G.S. 1949,
of
Tenure
Act
310 P.2d
of Instructors
seq.)
et
to be as
72-5401
was stated
follows:
“
(G.S. 1949,
purpose
Chapter
of
‘The evident
Tenure
Instructors Act
54)
worthy
protect competent
Art.
and
instructors and other
members
profession
unjust
political,
against
religious
dismissal of
kind—
personal,
encourage
and
them
will
or
secure for
conditions which
their
growth
practice
profession,
by
pressure
of their
in
full
unharried
constant
and
fear,
special privileges
upon
it
but
does not confer
or immunities
them to retain
permit
permanently
positions
salary,
their
or
nor
their interference
and,
operation
public-school system;
notwithstanding
or efficient
it
control
grants
taught
requisite period,
tenure to those who have
it nonetheless
empowers
discharge
just
orderly
Boards of Education to
them for
cause in an
by
procedures specified.’
1.)
(Syl.
(Emphasis supplied.)
¶
manner
time,
through
repealed
legisla-
72-5409 were
K.S.A.72-5401
1974. At
Supp.
seq.,
comprehensive
ture enacted K.S.A. 1977
72-5436 et
as a
procedure covering
every
the termination or nonrenewal of teachers’ contracts in
district,
school,
community junior college
area vocational-technical
school
statutory
provide
It is clear
that the
state.
to us
scheme to
tenure for all school
throughout
purpose
teachers
the state has the same
as that of the Tenure of
Act which is discussed in
Instructors
Million.
carry
legislative purpose
“If the courts are to
out the
teacher tenure
statutes, they
require
good
must
board of education to
cause
show
in order to
justify
requirement
the dismissal or nonrenewal of a tenured
teacher.
good
statutory
Supp.
cause is inherent in the
scheme created
K.S.A. 1977
seq.
provides
employment
72-5436 et
72-5437
that all contracts of
of teachers
succeeding
shall be deemed to
for the
continue
next
unless written
notice
termination
nonrenewal is
A
or
served. written notice of
intent
upon any
a contract
be served
nonrenew
must
a board
teacher on or
before
day
passing,
of March.
fifteenth
should
noted that the date for notice of
changed
require
nonrenewal
1978 to
the written notice of the school
upon
board’s intent to nonrenew contract must be served
the teacher on or
April (K.S.A.
72-5437).
day
Supp.
requires
fifteenth
before the
72-5438
the written notice of nonrenewal to include:
termination,
proposed
“1. A statement of the reasons for the
nonrenewal or
may
“2. A statement that the teacher
have the
heard
matter
committee.
72-5439, specific procedural
process requirements
Under
are
forth
set
orderly
including
right
right
to an
and the
teacher
to a fair and
impartial decision based on substantial evidence. It should be noted that
72-5439(4)
testimony
present
give
affords to the board the
its
reasons
actions, rulings,
policies.
places
proof upon
its
72-5442
the burden of
*6
allegation
where
is
instances other than
the
that the teacher’s
school board in all
by
is
of the
exercise
a
nonrenewed
reason
teacher’s
of
constitutional
contract
requires
hearing
right.
72-5443
the
committee to render written recommenda-
tion,
findings
setting
hearing
its
fact. The recommendation
the
forth
of
of
board,
required
the
the
is
to be
to
teacher and to
board. The
committee
submitted
hearing argu-
considering
after
the
committee’s recommendation and
ments,
the
decides whether
teacher’s contract shall be renewed or terminated.
final, subject
school board is
to
to the district court as
The decision of the
by
provided
K.S.A. 60-2101.
applicable
provided
summary
“This
the
statutes has been
to make
of
clear
purpose
inquire
is
into
that the
of the
to
the reasons
the
or
of the teacher and
determine whether or not the
dismissal
nonrenewal
spirit
presented
good
purpose
cause
evidence
establishes
within
and
tenure
teacher
statutes.”
scope
review
of
of
district court
school board
fully
case is
Brinson
decisions in a nonrenewal
covered
v.
District,
465, Syl. 6,
(1978).
¶
In this a full upheld decision hearing committee which and sustained the teaching terminating Learning’s 1983-84 con- U.S.D. No. 214 was committee sub- tract. The recommendation of school board. The record mitted both ever that the board thereafter took action fails to show school notify report. school failed to board adopted adopted it had or not plaintiff teacher whether or whether decision clear, however, terminated. It should be renewed or teacher record, from the that both the teacher and the school board knew that it was not the intention of the school board to renew Following contract. his initial termi- nation, plaintiff obtained new contract for the 1983-84 year Cuba, Kansas, at U.S.D. No. 455 in salary at a $16,800 per year. salary Plaintiffs under his contract with U.S.D. $21,460 No. 214 was in per year. the amount of The record also discloses that renewed his contract with U.S.D. No. Cuba, Kansas, year for the school 1984-85. For the school 1985-86, plaintiff employed by the Phoenix Institute of Technology Phoenix, Arizona, salary. a variable *7 hearing present case, committee the a unanimous including decision the affirmative vote plaintiffs of the own hearing committee, nominee on the uphold voted to the action of provisions the school board. Under the of K.S.A. as it prior 1, 1984, July existed to the recommendation hearing committee was to be submitted to the teacher and to the board of considering education. After hearing the committee’s recom- receiving mendation and after arguments oral or briefs from the teacher, the board required of education was to decide whether the teacher should be terminated or renewed. amended,
K.S.A.72-5443 was
1,
July
1984,
effective
provide
to
that, if the members
committee are unanimous in
opinion,
their
the board of education
adopt
shall
opinion
the
as
its
decision
the matter and
opinion
final,
such
shall be
subject
appeal
to
to the district
provided
court as
in 60-2101. That 1984
approved April 6,1984,
amendment was
within a
following
week
Learning’s
the close of
final
special
before the
commit-
However,
tee on March
noted,
1984.
as
the new statute did
July 1,
not become effective until
1984.
that,
We believe
under
circumstances,
these
in view of the fact of the amendment of
72-5443, which was
effect,
about to come into
plaintiff
both the
teacher and
may
the school board
well have assumed that the
teaching
contract
year
for the calendar
1983-84 had
been terminated. Plaintiff
request
made no
for a hearing or offer
to submit briefs
arguments
or oral
to the school board. Plaintiff
nothing
did
until he
against
filed his action
the school board over
year
May 15,
later on
The facts set forth
jurisdictional
above raise a
issue which must
60-2101, which
with. Under K.S.A.
affords an
first
dealt
case,
teacher
in a contract
renewal
where a teacher
appeal
to a
requests
act
protected by the teacher
tenure
receives a
timely appeal
take a
but fails to
district
court,
judicata
precluded
the teacher
the doctrine
res
proceeding.
in another
or
See
raising
from
the same issues
action
No.
Neunzig v. Seaman U.S.D.
(1) hearing the more His before committee after his contract was terminated. than ten months process by service Richard denied due the of He was 214, hearing Pickier, of U.S.D. No. as a member the treasurer committee. the process denied virtue of school board’s He was due a hearing the decision and render review committee’s
failure to 72-5443; by K.S.A. final decision as was, therefore, denied. district to the court separately. each these contentions We will consider hearing, which was delay In in committee regard discharge, the trial completed than months after his more ten process. say was no court found there violation of We cannot regard. specific that the erred in this There trial court are no statutory guidelines hearing for the time set for a to be requires under the Teacher Tenure Law. K.S.A. 72-5438 Kansas hearing days a fifteen request a teacher within after termina- days tion. board is allowed fifteen The school thereafter committee, hearing the designate a chairman must be se- is, however, days. specific lected next five There within the no holding provided hearing. time in the statute for the committee 273, County In Crane v. Mitchell U.S.D. No. (1982), eighteen elapsed
P.2d 205 months between termination of the teacher’s contract and the committee’s recom- delay mendation. The court noted that much was caused did, the failure to file s his written brief. The court however, determining list several factors for if the time process requirements: met due determining timing “The factors whether to consider the
comports
private
affected,
include
interest that will be
deprivation
through
procedures used,
risk of an
of that
erroneous
interest
procedures
State’s interest in
used as well as the administrative burdens
any
procedural requirements
Syl.
that
¶
additional
would entail.”
opinion,
In the
is further
requires
stated that due
that
given
opportunity
one be
to be heard “at a meaningful
time
and in a
manner.”
meaningful
In
present
appropriate
received both
hearing.
notice and a
was continued for two months
request.
at the
suggestion
any
There is no
im-
proper
delay
hearing.
fact,
motive caused
in the
argue
delay
does
In Cleveland
prejudice.
caused him
Loudermill,
Board
v.
Education
U.S.
Ed.
84 L.
2d
(1985),
for school correctly that the trial court determined by any delay rights plaintiff were not violated hearing. committee
Plaintiff next contends that he was denied due of law Pickier, District by the service of Richard treasurer of School No. a member of the committee. The board of edu- as representative Richard Pickier as its cation nominated to serve attorney Pickier was a committee. local who duty His as financial interest in the outcome of the case. no transferring funds and he received no treasurer was limited to pay for his services as treasurer. His services were whatsoever attorney legal He was not an advisor for the free to the school. proceedings A review of before school board. Mr. Pickier was concerned showed that impartial in a fair and manner. At no
proceedings be conducted proceedings plaintiffs did counsel in the course of the time Pickier the service of Richard on the object on the record to interrogatory submitted According to an answer to committee. board, attorney, Nightingale, ex- plaintiffs Evan by the school serving. But Pickier about his counsel his concerns to pressed Nightin- Pickier’s services. objected the record about never for might for an Pickier his services basis apparently told gale appeal. law, court, findings noted in its and conclusions
The district board, he treasurer that, although Pickier was simply volunteer, compensation, received no acted as he district. At no time was for the school signed checks wrote *10 754 attorney controversy in the as for the school board or
appearing
concluded that Pickier was under no
the district. The trial court
education,
any kind to the board of
and that
obligation of
ability was an asset to the committee. The trial
experience and
upholding
that the decision of the committee in
court also noted
of
s contract was unanimous and in-
termination
member,
plaintiff designated
the affirmative vote of
cluded
Melvin Wilson.
present a
that in
present
case does not
situation similar to
353,
394,
(1983).
v. U.S.D.
233 Kan.
Coats No. Coats, appointment this held that the a school court board attorney to the committee violated the rule of funda- attorney clearly mental fairness. A school board has a conflict of and, out, pointed person interest as the court he was the who prepared gave legal all the documents and the school board arriving in at its counsel decision to nonrenew the teacher. A attorney school board also has an obvious financial interest in confirming present the school board’s decision. although attorney, is Pickier there has been no conflict of interest shown. He had no financial interest in the outcome of circumstances, the case. Under we all hold the trial court concluding process rights did not err in the due were not violated the service of Mr. Pickier on the committee. upon
The final claim the
is based
the fact that the
appeal
denied a
to the district court
failure of the board of education to review the
commit-
hesitancy
tee’s decision and render a final decision. We have no
holding
that the board of education should have considered
report
plain-
committee’s
and acted thereon so that
statutory right
appeal
tiff s
the district
court would have
possible.
duty
been made
Several Kansas cases have noted the
the board of education to render its final decision under K.S.A.
v.
72-5443. Haddock U.S.D. No.
661 P.2d (1983); Kelly
City,
Community
v. Kansas
Kansas
College, 231
751, 759,
(1982);
As noted K.S.A. 72-5443 was amended effective 1, 1984, that, July provides and now if the members opinion, in their hearing committee are unanimous the board of education shall adopt opinion as its decision the matter final, subject district and such decision shall be If the members of provided court as 60-2101. opinion, in their are unanimous board opinion to consider and decide
education July whether the contract should be renewed or terminated. The Keller 1,1984, operate retrospectively in amendment was held to *11 Community College, Board Trustees Coffeyville (1987), App. Appeals the Court of 2d P.2d 830 where procedure only that the affected be reasoned amendment and, therefore, rights will applied “all of action be enforced procedure regard they under the new without to whether ac- change regard or after such of law and without crued before App. whether or not the suit has been instituted.” 12 Kan. 2d Syl. ¶ 1. present case, possible it for this
In the would court to order the matter remanded so that the school board could make its final However, report. decision committee’s that accomplish in view of the fact that the would little decision of unanimous. that hearing committee was We believe the most way protect rights court to plaintiff effective for district was examine for the district court to the record determine plaintiff process rights been whether or not s due violated. exactly by the procedure That was followed district court. only in this case whether The real issue any process rights suffered a denial reason teaching contract termination of 1983-84. The court, held, summary judgment, in as granting district a matter evidence, upon undisputed law based directly superintendent’s
own admissions defied order not to May in in to attend a science absent himself for one week order Mexico, Albuquerque, fair in New students. former that, although the trial stated record indicated that Learn- court teacher, ing excellent he chose to exercise his was an regard system without to the interests of the school abilities order that he not absent himself defiance of administrative teaching duties. from his it clearly undisputed show facts this
In order to helpful testimony would be to examine at the com- hearing. provided, mittee Plaintiff s in sub- stance, as follows: may “This contract be terminated the Board of Education at time obey Superintendent
for . . . failure to . . . the directions of the of Schools.” testimony in his before the part testified in as follows: Now, you, you’ve you “Q. admitted that committed an act of defiance towards U.S.D. administration of that correct? # Yes, “A. that is correct. Well, “Q. you explain, you how do how do mean that committed an act of defiance? Rundus, uh, my superior a, “A. Dr. as made a statement to me I that was not to in, uh, Albuquerque, attend with these students New Mexico. “Q. you anyway. And did Albuquerque, “A. And I went to New Mexico. “Q. being your placed Yes. After even jeopardy told contract would be jeopardy, or would be in is that correct? that, uh, your “A. jeopardy. He made that statement contract would inbe “Q. you, Learning. your What did that mean to Mr. That contract would be in
jeopardy. be, uh, “A. That there would consideration. “Q. you Wouldn’t that mean that could be fired? way “A. I didn’t take it that at that time. *12 “Q. really your being put jeopardy But that what doesn’t contract in means that you could be fired? particular point, understanding, “A. At that I was not under that no sir. “Q. today, you But language really after reflection don’t think that’s what that reasonably interpreted mean, you might could be that be fired? Well, transpired, why guess “A. what after I it was.” point stand, At a later while plaintiff witness admitted that he breached the directive to teach his regularly assigned May May classes on 9 to
The evidence in this undisputed case was thus plaintiff that Learning violated his contract employment. The board of clearly specified education had plaintiff s right contract its terminate if obey he failed to the directions superintendent. Plaintiff willfully testified that he violated such directions. circumstances, plaintiff
Under these was not denied process rights any injury nor did he suffer damages or as a result formally board of education’s failure accept findings undisputed thereon. The facts hearing and act good If cause. plaintiff was terminated that the show plaintiff had the statute and education had followed board of court, the district he could not have statutory appeal taken Any district undisputed facts. court in view of the prevailed right its have no to substitute appeal heard an would which board. committee or judgment for that of discharge plaintiff legitimate cause to The school board had contract, reasonably said that and it cannot under his unreasonably, arbitrarily, capri- or acted board of education by good supported was not ciously that its order of nonrenewal cause. record, undisputed facts contained in the we
In view of the the case hold- properly trial court decided conclude that the rights violated. The s due were not ing s right had the to terminate board of education year, willfully he dis- the 1983-84 school because superintendent of schools as dis- obeyed the directions of the cussed above. Rundus, appeal against in the case filed Dr.
As to summary judgment granting trial court the decision of the The evidence was un- Dr. Rundus must be affirmed. favor of rights were not violated and that s contract disputed performance of his official Rundus at all times acted Dr. superintendent of schools. responsibility as is affirmed. judgment the district court proce- argues he was denied J., dissenting: Appellant Herd, delayed reasons: for three dural months; (2) the school board was a member of the treasurer of ten committee; (3) the school board failed to review as and render a final decision decision committee’s 72-5443; thus, to an by K.S.A. denied. court was district majority’s opinion that the treasurer of
I
in accord with
am
disagree,
I
committee.
may serve on
a school board
*13
hereafter
set out.
however,
two issues as
with the other
was,
expectation
has an
teacher,
which
A tenured
pro-
qualifies
for constitutional
employment which
continued
“
very purpose of tenure
property.
‘The
species of
tection as a
give recognition
continuing contract laws is to
to constitu
”
City,
tionally protected
Kelly v. Kansas
Kansas
interest.’
Com
751, 760, 648
(1982);
munity College, 231 Kan.
P.2d 225
Endicott
Petten,
878, 882 (D.
1971).
Supp.
330 F.
Kan.
See Board
Van
Roth,
U.S.
33 L. Ed. 2d
briefs.” May Learning was nonrenewed in 1983. He asked for a due hearing He at that time. did not receive a until January of 1984. He deserved a within a short time after request permit orderly him to make an decision about employment. delay future This was unreasonable. The timely rendered its in a recommendation manner after the but the school board took no further action. Thus, Learning opportunity argue was denied the his case or provided by present a brief to the school board as statute. But importantly, the board’s failure more to make a decision Learning’s nonrenewal after received the commit- denied him review tee’s recommendation the district court *14 provides The right appellate review. statute “the and the shall, considering the committee’s rec- . . . after board argument receiving writ- and after oral ommendation , . . . the teacher’s contract ten decide whether shall be briefs subject right the teacher’s to or terminated” to to renewed the district court. majority attempts Learning to shift the blame to opinion
The give statutory of the school him the for the failure board reasoning not must be hearing. This is well founded. It remem- taking property by a The talking bered we are about State. except process. person’s property take This State cannot a provided was not process if the due statute afforded means contract, Learning continuing taking in the nonrenewal Learning had defective and the contract continues. a valid was validly it terminated school The contract until was board. sought to terminate the contract. It was thus the school board comply obligation accomplish board’s the law to school failed, Learning’s it its desired result. If contract continued. filing majority opinion Learning’s this argued
It is rights independent for violation of constitutional cures action procedure. disagree. I The the defect in issues in requested were when a due this case fixed made, request statutory hearing. procedure Once is such complied with and notice of nonrenewal is final must be school makes a decision based on the until board decision, committee recommendations. There no so there taking, Learning’s can no contract continued. majority effort opinion, one last to make
The legal, the statute and the board’s violations of Constitution argues July K.S.A. effective amendment provides that a unanimous which recommendation binding board, relates back to the hearing committee is change. argues It previous year merely procedural it is since the actual committee’s recommendation this makes board, the board was not of the school thus decision make a decision. statutory change also. majority wrong on this issue A is is not retroactive unless the
pertaining
substantive
is
It
legislature
provides.
so
1984 amendment
substantive.
tells the school board what
it
decision
shall make pertaining to
property
taking
when the
committee is unanimous
Thus,
in its
change
recommendation.
because the
proce-
is not
legislature
dural
retroactive,
and the
did not
make
the 1984
inapplicable
amendment
to this case.
*15
LaFleur,
Cleveland Board
v.
632,
Education
414 U.S.
39 L. Ed.
(1974),
2d
Supreme following Court made the process statement about due which is relevant here: “ recognizes higher speed ‘[T]he efficiency. Constitution values than and In- deed, say might fairly Rights general, one of the Bill of in and the Due Process particular, they designed protect fragile Clause in that were values of a citizenry overbearing efficiency efficacy vulnerable from the concern for and that may praiseworthy government less, characterize perhaps more, officials no and ” (Quoting Stanley Illinois, 645, 656, than mediocre ones.’ 405 U.S. 31 L. Ed. [1972].)
2d
16A Am. § pp. 955-56, Constitutional Law makes Jur. this comment: guaranty process important “The of due of law is one of the most to be found in amendments; the Federal Constitution it has been described as the very justice, essence of a scheme of ordered and it has been said that without it right private property exist, could not be said to in the sense in which it is known to our laws. process primary indispensable “Due of law is the and foundation of individual freedoms; it is compact the basic and essential term in the social which defines rights powers of the individual and may delimits the which the state exercise. guaranty process absolute, The fundamental merely of due is and not relative. It regard merely law, does not have to enforcement of the but searches also the authority making law, merely political right, and it is legal not but is a right By guaranty assertable in the courts. reason of this it has been stated as a general principle everyone protection that is entitled to the of those fundamental principles liberty justice which political lie at the basis of all our civil and long recognized institutions and have been system, under the common-law infrequently designated which are not as ‘law of the land.’ The is of such importance people delegated that the have never to either the state or federal government power deprive person property except by observing its
requirements. obligations A state’s under the Fourteenth Amendment are not simply generalized ones; rather, the state process owes to each individual that which, light society, of the values of a free can be characterized as due.” Learning process absolute due right to a board decision subject appellate to court and review. This he was denied. The merits of the Learning’s nonrenewal of contract are not before us. process, receive due there was If did not no nonre- this question is the case. That newal. stands, opinion stating process it is due majority is
If the good only and that those cause are entitled to it. selective country; in this the law. All are entitled That innocent, guilty, breachers of contracts. Consti- privileged that we is not selective and are not to draw tution deny litigant from the facts and be- conclusions given justice is govern- favor a result. Result-oriented cause we law, directly contrary concept men and not of ment of law. the rule' of
I would reverse and remand.
Allegrucci, J., joins foregoing dissenting opinion.
Lockett, J., majority concurring dissenting: correctly delay hearing by the hearing that neither reasons treasurer committee nor service school board on the process rights the due the teacher. committee violated Justice correctly majority incorrectly in his dissent Herd states *16 1984 K.S.A. It is not applies proper amendment 72-5443.
give retrospective application procedural to a statute where prior exists effective date of statute. vested Inc., Freight System, v. American Best 238 Kan. Jackson (1985). 709 P.2d majority disregards the fact that the school board’s de- statutory right appeal
prival of the teacher’s of the termi- is the crux of this civil action. nation of Both majority simply this district court and the court converted the deprivation appeal one for to an action from action, converting After 72-5443. civil authorized K.S.A. majority scope recites the of review of school board decisions District, (citing Brinson v. School in nonrenewal cases evidence, [1978]), P.2d 602 reviews the affirms the deprives again plain- the district Such review decision of court. process rights. tiff wrongful termination claim is not
The merits of only issue is properly before this court. The whether issue hearing in the district court on his claim teacher is entitled to a I process rights were believe this case his due violated. prevail court, should be remanded. To in the district the teacher placed would be in the same situation as a client who sues his attorney allowing former the statute of limitations to run. Specifically, prove: the teacher must that he would have appeal; succeeded in the damages what were caused wrongful termination of the contract and the loss of his due process rights. majority states that there is undisputed evidence employment violated his contract of in that he willfully obey
failed to the directions superintendent. These facts may but, reiterate, wrongful be correct termination is not the issue before this majority court. The disregard cannot pri- mary question controversy, change of this the nature of the action to an of a nonrenewal and then affirm. We must re- member that we are restricted rules of law. The action of the majority may expedient, be power more but our of review cannot expanded expediency. to include