No. 86-302
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
FRAZER SCHOOL DISTRICT NO. 2,
Appellant and Respondent,
-vs-
BETH M. FLYNN; SUPERINTENDENT OF
PUBLIC INSTRUCTION; ALFREDA DRARBS,
VALLEY COUNTY SUPERINTENDENT OF SCHOOLS;
AND DELORES HUGHES, SUBSTITUTE HEARING
OFFICER,
Respondents and Appellants.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Valley,
The Honorable Leroy McKinnon, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
John W. Larson, Office of Public Instruction, Helena,
Montana
G. T. Archarnbeault, for Beth Flynn, Glasgow, Montana
For Respondent :
James D. Rector, Glasgow, Montana
For Amicus Curiae:
Bruce W. Moerer, Montana School Boards Assoc., Helena,
Montana
Submitted on Briefs: Jan. 7, 1987
Decided: February 5, 1987
Filed:
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an appeal from an order of the District Court
of the Seventeenth Judicial District, in and for Valley
County, Montana. The order reversed a decision of the State
Superintendent of Public Instruction which allowed a tuition
transfer for appellant. We affirm the order of the District
Court denying the tuition transfer.
Beth M. Flynn (appellant) a resident of the Frazer
School District, removed her child from the Frazer school to
the Wolf Point school. She then requested the Frazer School
Board to approve her tuition application pursuant to
§ 20-5-302, MCA. The School Board reviewed her application,
and based on policy and statutory considerations, rejected
it.
Appellant appealed the decision to the Valley County
Superintendent of Schools. By request of the parties,
Dolores Hughes, County Superintendent of Phillips County,
heard oral testimony and affirmed the School Board's
decision. A further appeal to the State Superintendent of
Public Instruction resulted in reversal of the decision
denying tuition transfer. The Frazer School Board appealed
to the District Court, which reversed the order of the State
Superintendent of Public Instruction and reinstated the
decision of the Frazer School Board, denying a tuition
transfer. Appellant appeals from the decision of the
District Court.
We are asked to determine whether the decision of the
District Court complies with the Montana Administrative
Procedures Act, specifically 5 2-4-704, MCA, and 5 2-4-623,
MCA, and whether the decision of the Valley County
Superintendent of Schools is contrary to law. The first
issue is dispositive, as it is the only issue within the
scope of review of this Court.
The Montana Administrative Procedures Act (MAPA)
permitting "an aggrieved party [to] obtain review of a final
judgment of a district court ... by appeal to the Supreme
Court . .
. " set forth at S 2-4-711, MCA, must be followed
in this case. Yanzick v. School District #23 (1982), 196
Mont. 375, 383, 641 P.2d 431, 436. The appeal to the County
Superintendent was in effect a trial de novo with witnesses
and recorded evidence, while the appeal to the State
Superintendent was based on the record.
The standard of review applicable to the District Court
is set forth in S 2-4-704, MCA, which reads in pertinent
part:
(1) The review shall be conducted by the
court without a jury and shall be
confined to the record ... The court,
upon request, shall hear oral argument
and receive written briefs.
(2) The court may not substitute its
judgment for that of the agency as to the
weight of the evidence on questions of
fact. The court may affirm the decision
of the agency or remand the case for
further proceedings. The court may
reverse or modify the decision if
substantial rights of the appellant have
been prejudiced because the
administrative findings, ...
conclusions, or decisions are:
(e) clearly erroneous in view of the
reliable, probative, and substantial
evidence on the whole record;
Under this section, neither the District Court nor the
Superintendent of Public Instruction may substitute his
judgment for that of the County Superintendent as to the
weight of the evidence on questions of fact.
When considering whether the District Court erred in
its review of the State Superintendent's decision, we will
not overturn the District Court unless we find its decision
to be clearly erroneous. Rule 52 (a), M.R.Civ.P. In this
proceeding the District Court was not the trier of fact. We
have here an appeal from a lower appellate tribunal, the
State Superintendent of Public Instruction, which in turn
based his conclusions on a review of the printed record,
without the benefit of listening to and observing the
demeanor, conduct, and testimony of witnesses. We will
reverse or modify the decision only if substantial rights of
the appellant have been prejudiced because the administrative
findings and conclusions are clearly erroneous in view of the
reliable, probative and substantial evidence on the whole
record. See Yanzik, supra, 196 Mont. at 388, 641 P.2d at
439.
MAPA provides that the County Superintendent shall hear
all controversies relating to tuition application and take
testimony to determine the facts. Section 20-3-210, MCA.
This procedure was followed. The statute also provides for
an appeal of the decision of the County Superintendent to the
State Superintendent of Public Instruction, who makes a
decision based on the record. This procedure also was
followed.
The standard of review for the State Superintendent is
found in Rule 10.6.125, Administrative Rules of Montana,
(ARM). The Superintendent of Public Instruction has
incorporated by reference the Model Rules of the Attorney
General for rule making procedure. Pursuant to that
procedure, Rule 10.6.101, Scope of Rules, was adopted, and
became effective in September, 1982. Subsection (e) says:
All controversies arising under any other
provision of Montana law or federal law
for which a procedure for resolving
controversies is not expressly prescribed
shall be governed by these rules.
Rule 1 0 . 6 . 1 2 5 , ARM, sets out the standard of review for the
State Superintendent. Subsection (4) of the Rule is
virtually identical to § 2-4-704(2), MCA.
1 0 . 6 . 1 2 5 APPELLATE PROCEDURE-STANDARD OF
REVIEW.
(4) The state superintendent may not
substitute his judgment for that of the
county superintendent as to the weight of
the evidence on questions of fact. The
state superintendent may affirm the
decision of the county superintendent or
remand the case for further proceedings
or refuse to accept the appeal on the
grounds that the state superintendent
fails to retain proper jurisdiction on
the matter. The state superintendent may
reverse or modify the decision if
substantial rights of the Appellant have
been prejudiced because the findings of
fact, conclusions of law and order are:
(a) in violation of constitutional or
statutory provisions;
(b) in excess of the statutory authority
of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the
reliable, probative and substantial
evidence on the whole record;
(f) arbitrary or capricious or
characterized by abuse of discretion or
clearly unwarranted exercise of
discretion; [or]
(g) because findings of fact upon issues
essential to the decision were not made
although requested.
The decision of the State Superintendent was appealed
to the District Court. After reviewing the record the court
determined that in reaching a different result under the same
set of facts the State Superintendent exceeded his authority
by substituting his opinion for that of the Frazer School
Board and the County Superintendent. We agree. After our
review of the record, we conclude it contains substantial
evidence supporting the County Superintendent's findings of
fact. The State Superintendent's order includes findings
which are not part of the record, or are irrelevant, or are
conjectures or conclusions, rather than facts. Findings of
the reviewing agency properly cannot be included as facts
when they are not part of the findings below. It is
irrelevant that the School District approved a tuition grant
for another family who had a child in need of special
education. The School Board has broad discretionary
authority in this area pursuant to § 20-5-302, MCA. Further,
there is evidence on the record the Board exercised its
discretionary authority according to the criteria found in
§ 20-5-302, MCA.
The order of the State Superintendent of Public
Instruction substitutes the Superintendent's judgment for
that of the Valley County Superintendent of Schools, in
violation of Rule 10.6.125, ARM. The reviewing agency must
confine itself to an analysis of whether the findings are
clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record, or are arbitrary or
capricious or characterized by abuse of discretion.
The District Court in reviewing the order of the State
Superintendent of Public Instruction is required to and did
adhere to this standard. Thus, it did not err in finding the
State Superintendent had exceeded his authority. Therefore
the order of the District Court upholding the Frazer School
Board's denial of tuition transfer is affirmed
@&.
V e concur:
? /
Justices
Mr. Justice John C. Sheehy, dissenting:
The majority opinion is written in complete ignorance of
the only real issue in this case: Whether the Frazer School
Board considered the factors set out in 5 20-5-302, MCA, in
denying Flynn's out-of-district tuition money. The Board
failed miserably and its decision should not be affirmed.
When approval is sought from a school board. for
out-of-district tuition so that pupils can attend elementary
schools, the members of the school board individually are to
consider under 5 20-5-302, MCA, the following factors:
(1) The distance and road conditions between the
child's residence and any school of his resident
district;
(2) The training center of the child's parents;
(3) An opportunity to live with his relatives;
(4) Dormitory facilities in the district to be
attended;
(5) The living conditions of the child's family;
(6) The availability of transportation; or
(7) The type of educational program available in
the school to be attended.
The Flynn's appealed the denial by the School Board of
their tuition transfer request to the county superintendent.
Only two of the factors set out in S 20-5-302, MCA, were
considered by the county superintendent. She found in
finding no. 10 that each of the petitioners is provided
transportation by the school district to the Frazer school
and that each of the petitioners lived nearer to the Frazer
school. than to the Wolf Point school. None other of the
factors set out S 20-5-302, MCA, were considered by the
county superintendent, nor were they considered by the school
Board.
If we look at the minutes of the October 14, 1984
meeting of the School Board at which the tuition transfer
request was denied, we find the only reasons suggested by the
district superintendent to the Board were: (1) "874 monies
are theoretical, (2) the principle of quality of education,
and (3) this will not set a good precedent."
Under the testimony of one of the school district board
members before the county superintendent, it developed that
the Board habitually ignores the requirements of § 20-5-302.
He testified:
Q. Has the Board had a policy concerning tuition
transfers? A. Yes. Our policy since I have been
on is that, as long as a person lives on a bus
route, we do not grant tuition.
Mr. Clark was further asked on the factors considered by him
as a board member:
Q. Available transportation, trade center, road
conditions, emergency service, relatives in Wolf
Point, and the children already started their
education in Wolf Point. Are those legitimate
reasons for transfer of tuition under the statutes
of Montana? A. No, not in my opinion.
It is obvious that the School Board has set itself above
the law, and when tuition transfers are requested, such
requests will be denied if the applicant child lives on a
school bus route. Yet, availability of transportation is
only one of the factors set out in § 20-5-302, MCA, that the
board should consider and pass upon individually.
When the appeal was taken by the Flynns from the
decision of the county superintendent further denying the
tuition transfer to the State Superintendent of Public
Instruction, the State Superintendent saw the flaw in the
school board proceedings and corrected the same by reversing
the county superintendent and directing the school board to
provide tuition transfers. The State Superintendent was
right as rain.
The majority opinion complains that the State
Superintendent "substitutes the superintendent's judgment for
that of the Valley County Superintendent." He certainly did,
and rightly so. The decision of the School Board, and of the
county superintendent, were clearly erroneous in view of the
reliable probative and substantial evidence on the whole
record ( $ 2-4-704 (2)(e), MCA) and the decision of the School
Board and of the county superintendent was arbitrary,
capricious, an abuse of discretion and a clearly unwarranted
exercise of discretion. Section 2-4-704 (2)(f), MCA.
The only stricture on the State Superintendent when an
appeal is taken to him from a county superintendent is that
he may not "substitute his judgment for that of the county
superintendent as to the weight of the evidence on questions
of fact." Rule 10.6.125 ( 4 ) , A.R.M. In this case the
superintendent did not substitute his judgment for that of
the county superintendent on questions of fact because there
were no questions of fact to weigh. The school board and the
county superintendent failed entirely to consider the factors
required to be considered under 5 20-5-302, MCA for tuition
transfers. The State Superintendent was perfectly correct in
determining that such procedure before the School Board and
before the county superintendent was arbitrary, capricious
and required to be overruled.
I would affirm the decision of the State Superintendent,
and thus reverse the District Court.
*/
I concur in the foregoing dissent: