I concur in the judgment of affirmance herein and in the majority opinion, in so far as it goes, except I must *Page 243 respectfully dissent to the inclusion therein as a reason for the affirmance of the judgment that the plaintiff had an adequate remedy at law pursuant to R. C. Chapter 2506.
The majority opinion herein is an amended opinion and is not the majority opinion originally filed in this case. The original opinion, filed December 29, 1970, in which I concurred by separate opinion, did not set forth the ground in question. It did not because that issue was not raised in the trial court nor urged or argued in this court nor considered by this court in the rendition of the original opinion.
The record reveals that thereafter, on January 8, 1971, in response to the original opinion, an entry, in general form and without setting forth reasons, was filed for journalization affirming the judgment of the trial court. On January 14, 1971, a notice of appeal to the Ohio Supreme Court was filed stating, in essence, that a substantial constitutional question and a question of great general and public interest was presented in the appeal to that court.
Subsequent thereto, the original majority opinion was, suasponte, amended by inclusion of the reason of the applicability of R. C. Chapter 2506. The judgment was not vacated and reentered. The term of court for Jackson County elasped prior to the filing of the amended opinion.
Aside from the question of lack of jurisdiction by expiration of the term, I am of the view that, even assuming authority to do so, an opinion should not be so amended.
The term "opinion" is universally defined as a statement of reasons delivered by a judge or court for the giving of the judgment in a case. See 29 Words and Phrases 589. The reasons for the judgment that was entered in this case had no reference to Chapter 2506 and, hence, the latter was not a "reason" for entry of the judgment.
In my view, intolerable confusion will result from a practice of amending opinions after judgment on new *Page 244 and distinct grounds not argued or originally considered in the entry of the judgment. If an opinion may, with propriety, be amended as done here, at this late date, at what definitive point in the future may it not be amended? The uncertainity such a procedure could generate is obvious and particularly is this so in view of the decision of the Ohio Supreme Court inAndrews v. Board of Liquor Control, 164 Ohio St. 275, that when, as here, the judgment entry does not disclose the grounds upon which the judgment is founded, resort may be had to the opinion of the lower court to ascertain those grounds. See alsoPennington v. Dudley, 10 Ohio St.2d 90. Additionally, the injustice of such a procedure to a losing party is readily apparent. Inasmuch as the judgment is already entered, an application for reconsideration pursuant to R. C. 2505.271 and Rule VII of the Rules of the Courts of Appeals is precluded. Thus, as an end result of the procedure here adopted, the losing party is denied any opportunity to brief, argue, or otherwise present his views and authorities upon what the majority describes as a "dispositive" issue in the appeal.
I can only conclude that inclusion of the ground in question is improper and represents, at most, an after-thought of a ground that could have, but was not, utilized as a reason for the judgment.
I concur in the remainder of the opinion, except that I believe we should go further and specifically pass upon the third assignment of error. The appellant has entered, as his third assignment of error, the following:
"The Trial Court Erred In Finding That A Board of Education May Lawfully Terminate The Employment of A Teacher Eligible For A Continuing Contract On the Mere Recommendation of Its Superintendent Without Giving Such Teacher Notice Of The Cause For Termination On a Hearing, Nor An Opportunity To Cure His Deficiencies, If Any."
The argument of plaintiff in support of this assignment of error insofar as it is claimed the Ohio statutes require a notice with reasons for the termination of employment *Page 245 and the opportunity to refute the reason as to why a teacher's contract is not being renewed is without merit. The notice under R. C. 3319.11 to the teacher with reasons directed at professional improvement relates solely to the granting of two year limited contracts to a teacher otherwise eligible for a continuing contract.
The remaining argument of plaintiff urges that the due process clause of the United States Constitution requires that "a teacher receives [sic] a statement of the reasons why the Board of Education does not intend to retain him, notice of a hearing at which he may respond to the stated reasons, and a hearing if he appears at the appointed time and place."
Support for plaintiff's contentions can be found. Roth v.Board of Regents of State Colleges (W. D. Wis.),310 F. Supp. 972; Gouge v. Joint School District No. 1 (W. D. Wis.),310 F. Supp. 984 and Klein v. Joint School District No. 1 (W. D. Wis.),310 F. Supp. 984. All of these authorities are the decisions of one judge, namely, James E. Doyle, of the federal district court of Wisconsin. From a review of authorities, it would appear Judge Doyle has adopted a minority view.
In De Canio v. School Comm. of Boston (Mass.),260 N.E.2d 676, the Supreme Judicial Court of Massachusetts summarized the cited authorities in the following manner at page 681:
"In Roth v. Board of Regents of State Colleges,310 F. Supp. 972 (W. D. Wis.), and later in Gouge v. Joint Sch. Dist. No. 1,310 F. Supp. 984 (W. D. Wis.), a United States District Court judge in Wisconsin held that under his interpretation of the holding of Cafeteria Restaurant Wkrs. Union, Local 473, v.McElroy, 367 U.S. 886, 81 S. Ct. 1743, a public school teacher or college professor, whether or not on tenure, cannot constitutionally be dismissed without notification of the reasons for the impending dismissal and the offer of a hearing. The gravamen of the holding in the Roth case was that `the decision not to retain a professor employed by a state university (or a teacher in a public elementary or secondary school as in the *Page 246 Gouge case) may not rest on a basis wholly unsupported in fact, or on a basis wholly without reason,' 310 F. Supp. at p. 979, and that given the requirement of a reason, the professor or teacher must be afforded the opportunity to contest its basisId. at P. 980."
In rejecting the reasoning of these authorities the court stated in the next paragraph:
"Nor are we persuaded by the reasoning of the court in theRoth and Gouge cases. As the opinion in the Roth case recognized, `it is reasonable that there be available a very wide spectrum of reasons, some subtle and difficult to articulate and to demonstrate, for deciding not to retain a newcomer or one who has not yet won sufficient respect from his colleagues.' 310 F. Supp. at pp. 978-979. Such reasons are not amenable to proof at a hearing or to review by the judiciary. We therefore choose to follow the greater weight of authority."
In Griffin v. Board of Trustees of St. Mary's College (Md.),265 A.2d 757, the Court of Appeals of Maryland in considering a claim of a college teacher that he was entitled to a statement of reasons why his contract was not being renewed stated the following:
". . . Griffin concedes that he does not have tenure and that, absent the `statement of policy,' the College had the right to elect not to renew his contract without a hearing and without giving him reasons therefor. His concession is in accord with the weight of authority. See Williams v. School District ofSpringfield R-12, 447 S.W.2d 256, 270 (Mo. 1969); Bonner v.Texas City Indep. School District, 305 F. Supp. 600, 618 (S. D. Tex. 1969); and Parker v. Board of Education, 237 F. Supp. 222,227 (D. Md. 1965), aff'd per curiam, 348 F.2d 464 (4th Cir. 1965)."
In Parker v. Board of Education of Prince George's County (D. Md.), 237 F. Supp. 222, wherein the issue was raised as to the right to not renew the contract of a teacher who had not acquired tenure, the court states at page 227:
"Almost every case which has considered the question supports the view that unless there is a statute to the contrary, probationary teacher's contracts may be terminated *Page 247 by the school authorities at the end of any contract year prior to the time tenure is gained, with or without cause and without a hearing."
Numerous cases are cited under footnote 5 in support of the above statement.
Under the Ohio statutory scheme of teacher employment, teachers are hired either under a limited contract for a specific number of years or a continuing contract whereby employment continues until retirement, suspension, or removal for cause. R. C. 3319.08. A board of education is not required to reemploy a teacher at the termination of a limited contract subject to statutory notices of nonreemployment.
The difficulty in applying a due process concept to a nonrenewal of a limited contract is ascertaining what "right" must be procedurally protected. Absent tenure, a teacher's rights are dependent upon his contract and, upon its expiration, he has no vested rights under Ohio law to be reemployed. The relationship between the teacher and the board is at an end.Harrison v. Board of Education, 60 Ohio App. 45, 13 O. O. 182. Hence, no legitimate purpose is served by a requirement of charges and a hearing.
Something might be said on plaintiff's behalf under due process as to the right to have specific charges made for nonrenewal of a contract and the opportunity for a refutation of these charges where the claim is raised (which it is not in this case) that the decision not to rehire was based on the prior exercise of fundamental constitutional rights such as thefirst amendment right to freedom of speech. See Pickering v. Board ofEducation, 391 U.S. 563; Williams v. School District ofSpringfield (Mo.Ct.App.), 447 S.W.2d 256; Williams v.Sumter School Dist. No. 2 (D. S.C.), 255 F. Supp. 397.
I am of the view that the statutes under which the board herein acted are constitutional and are not violative of due process. The Supreme Court of Michigan has only recently reached a similar conclusion. Munro v. Elk Rapid Schools, 383 Mich. 661,178 N.W.2d 450 (July 17, 1970). I would specifically overrule the third assignment of error. *Page 248