AJLUNI
v.
WEST BLOOMFIELD SCHOOL DISTRICT BOARD OF EDUCATION
POTTER
v.
WEST BLOOMFIELD SCHOOL DISTRICT BOARD OF EDUCATION
Docket Nos. 56777, 56932, 56776, 56933, (Calendar Nos. 9, 10, 11, 12).
Supreme Court of Michigan.
Argued February 4, 1976. Decided August 26, 1976.Beer & Boltz for plaintiffs.
Dell, Shantz, Booker & Schulte for defendant.
Decided August 26, 1976. Rehearing denied 398 Mich 951.
PER CURIAM:
All of these appeals were consolidated and based on a relatively simple set of facts. Ajluni and Potter were hired as first-year probationary teachers during school year 1971-1972. (Potter was hired as of September 30, 1971, and Ajluni as of January 31, 1972.) Both were notified on April 11, 1972, that their services would be discontinued.
After failing to obtain relief before the State Tenure Commission, Potter and Ajluni filed complaints for mandamus in circuit court. The circuit court dismissed the complaints on the grounds that the close of the school year was June 30 and the notices had been given at least 60 days before the close of the school year as required by MCLA 38.83; MSA 15.1983. After cross appeals to the Court of Appeals, the trial court was reversed, the Court of Appeals construing the "close of the school year" to mean the last day the teacher is required to perform services, which for school year 1971-1972 was June 11, 1972. Therefore, the notice was 59, not "At least 60 days before the close of the school year", and relief was ordered. 59 Mich App 213; 229 NW2d 385 (1975).
*465 The trial court's decision to consider the close of the school year as June 30 provides the best result in construing the teacher tenure act as a whole. The trial court based its decision on MCLA 340.353; MSA 15.3353, which states that the school year of all districts shall commence on the first day of July. Although this does not compel as a matter of law that the last day of the school year be June 30, such a conclusion is reasonable and supported in common sense. It also has the salutary effect of providing certainty to all parties every year of the date by which notice must be given. Under the Court of Appeals interpretation, this certainty is not available.
It is apparent that the parties in these cases assumed that the close of the school year meant the last day the teacher was required to perform services. That matter was not contested before the State Tenure Commission, nor the trial court. Before the Court of Appeals, the answering brief of defendant-appellee maintained that during the two-year probationary period appellant Potter could not have completed her two-year probationary period until September 30, 1973, and hence the end of her first probationary school year would have been September 30, 1972. As to appellant Ajluni, in like manner they argued that her first probationary year would necessarily end on January 31, 1973. The matter does not appear to have been put in focus, therefore, before the Court of Appeals, nor was it argued before this Court. "A point thus assumed without consideration is of course not decided." Allen v Duffie, 43 Mich 1, 11; 4 NW2d 427 (1880); In re Fitch Drain No. 129, 346 Mich 81, 90; 77 NW2d 450 (1956).
The Court of Appeals is reversed and the order of the trial court dismissing the complaints of *466 Ajluni and Potter is reinstated. No costs, neither party having prevailed in full.
COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred.
WILLIAMS, J. (for affirmance).
Up until the majority's per curiam decision in the instant case, this Court has always assumed, without question, that the required 60-day notice dated from the day school actually closed. Weckerly v Mona Shores Board of Education, 388 Mich 731, 732; 202 NW2d 777 (1972). See also Fucinari v Dearborn Board of Education, 32 Mich App 108, 112; 188 NW2d 229 (1971). I believe we have done so correctly.
I therefore agree with the reasoning, result and order of the Court of Appeals and would affirm.
KAVANAGH, C.J., concurred with WILLIAMS, J.
LEVIN, J.
It appears from decisions of the tenure commission,[1] the Court of Appeals,[2] and this Court[3] that the term "school year", as defined in the teachers' tenure act,[4] has been regarded as the time during which school is in session and teaching services are required to be rendered.
The provision of the School Code of 1955 relied on by my colleague, "the school year of all districts *467 shall commence on the first day of July",[5] is derived verbatim from the 1927 school code.[6] This language, thus, was part of the school law when the teachers' tenure act was enacted (1937 Ex Sess PA 4) providing: "The `school year' shall be defined as the legal school year at the time and place where service was rendered."[7]
The 1927 code provided that the voters "shall determine the length of time a school shall be taught in their district during the ensuing year"[8] and that "[i]n case the people do not determine the length of the school year, the district board shall determine the same".[9]
It thus appears that the term "school year" was used in two senses in companion sections of the same chapter of the 1927 code.[10] For instructional purposes the school year varied from school district to school district. It still does. The 1955 code carried forward the concept of varying school years for instructional purposes: "The board of every district shall determine the length of the school term."[11]
The 1937 tenure act, in not prescribing the same "school year" for all districts and in adopting the "legal school year at the time and place where services were rendered", chose the varying school year determined severally by each district from time to time for instructional purposes the "school year" related to the objectives of the legislation.
If the school year invariably commences July 1 *468 and extends through the following June 30, the "school year" would not, for this purpose, depend on "the time and place where service was rendered".
My colleague states that adoption of June 30 as the unvarying last day of the school year "has the salutary effect of providing certainty to all parties every year of the date by which notice must be given". He also states that in these cases the parties "assumed that the close of the school year meant the last day the teacher was required to perform services". It is apparent that the failure to give timely notice was not due to uncertainty as to the date by which notice must be given. Fixing an unvarying date will not preclude human error or eliminate the issues presented regarding remedy where untimely notice is given.
NOTES
[1] "It is the decision of this Commission that the close of the school year for tenure purposes is defined in the Michigan Teacher Tenure Act as the final day in which the teacher is required to perform his regular professional services for the school district." Carik v Grosse Pointe Public School System Board of Education (Docket No. 70-22) (Oct 16, 1970).
See also Keefer v Jackson County School District (Docket No. 66-6) and Weckerly v Mona Shores Board of Education (Docket No. 68-6).
[2] Fucinari v Dearborn Board of Education, 32 Mich App 108, 112; 188 NW2d 229 (1971).
[3] Weckerly v Mona Shores Board of Education, 388 Mich 731, 732; 202 NW2d 777 (1972).
[4] MCLA 38.75; MSA 15.1975.
[5] 1955 PA 269, § 353; MCLA 340.353; MSA 15.3353.
[6] 1927 PA 319, part II, ch 2, § 2; 1929 CL 7361.
[7] MCLA 38.75; MSA 15.1975.
[8] 1927 PA 319, part II, ch 2, § 10; 1929 CL 7369.
[9] 1927 PA 319, part II, ch 2, § 11; 1929 CL 7370.
[10] §§ 2 and 11 of ch 2, part II.
[11] 1955 PA 269, § 575; MCLA 340.575; MSA 15.3575.