Leaming v. Unified School District No. 214

Herd, J.,

dissenting: Appellant argues he was denied procedural due process for three reasons: (1) his hearing was delayed ten months; (2) the treasurer of the school board was a member of the hearing committee; and (3) the school board failed to review the hearing committee’s decision and render a final decision as required by K.S.A. 72-5443; thus, his right to an appeal to the district court was denied.

I am in accord with the majority’s opinion that the treasurer of a school board may serve on a hearing committee. I disagree, however, with the other two issues as hereafter set out.

A tenured teacher, which Learning was, has an expectation of continued employment which qualifies for constitutional protection as a species of property. “ ‘The very purpose of tenure *758and continuing contract laws is to give recognition to a constitutionally protected interest.’ ” Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 760, 648 P.2d 225 (1982); Endicott v. Van Petten, 330 F. Supp. 878, 882 (D. Kan. 1971). See Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F. Supp. 895, 903 (D. Kan. 1977). Thus, we are dealing with Learning’s property rights, which are protected by the Due Process Clause of the 14th Amendment to the United States Constitution. The Kansas Legislature provided the required due process procedure to nonrenew a tenured teacher’s continuing contract. The statutory procedure must meet the requirements of the 14th Amendment. This case does not challenge the constitutionality of the statutory procedure. It challenges the school board’s compliance with the statute. K.S.A. 72-5443, the applicable statute, provides:

“Unless otherwise agreed to by both the board and the teacher, the hearing committee shall render a written recommendation not later than thirty (30) days after the close of the hearing, setting forth its findings of fact and recommendation as to the determination of the issues. The recommendation of the hearing committee shall be submitted to the teacher and to the board which shall, after considering the hearing committee’s recommendation and after hearing oral argument or receiving written briefs from the teacher and a representative of the board, decide whether the teacher’s contract shall be renewed or terminated, which decision shall be final, subject to appeal to the district court as provided by K.S.A. 60-2101. The decision of the board shall be submitted to the teacher not later than thirty (30) days after the close of oral argument or submission of written briefs.”

Learning was nonrenewed in May 1983. He asked for a due process hearing at that time. He did not receive a hearing until January of 1984. He deserved a hearing within a short time after the request to permit him to make an orderly decision about future employment. This delay was unreasonable. The hearing committee rendered its recommendation in a timely manner after the hearing but the school board took no further action. Thus, Learning was denied the opportunity to argue his case or present a brief to the school board as provided by statute. But more importantly, the school board’s failure to make a decision on Learning’s nonrenewal after it received the hearing committee’s recommendation denied him review by the district court *759and the right of appellate review. The statute provides “the board . . . shall, after considering the hearing committee’s recommendation and after hearing oral argument or receiving written briefs . . . , decide whether the teacher’s contract shall be renewed or terminated” subject to the teacher’s right to appeal to the district court.

The majority opinion attempts to shift the blame to Learning for the failure of the school board to give him the statutory hearing. This reasoning is not well founded. It must be remembered we are talking about a taking of property by the State. The State cannot take a person’s property except by due process. This means if the due process provided by statute was not afforded Learning in the nonrenewal of his continuing contract, the taking was defective and the contract continues. Learning had a valid contract until it was validly terminated by the school board. The school board sought to terminate the contract. It was thus the school board’s obligation to comply with the law to accomplish its desired result. If it failed, Learning’s contract continued.

It is argued in the majority opinion that Learning’s filing of this independent action for violation of his constitutional rights cures the defect in the due process procedure. I disagree. The issues in this case were fixed when Learning requested a due process hearing. Once such a request is made, the statutory procedure must be complied with and the notice of nonrenewal is not final until the school board makes a decision based on the hearing committee recommendations. There was no decision, so there can be no taking, and Learning’s contract continued.

The majority opinion, in one last effort to make the school board’s violations of the statute and the Constitution legal, argues that the amendment to K.S.A. 72-5443, effective July 1, 1984, which provides that a unanimous recommendation of the hearing committee is binding on the board, relates back to the previous year since it is merely a procedural change. It argues this makes the hearing committee’s recommendation the actual decision of the school board, thus the board was not required to make a decision.

The majority is wrong on this issue also. A statutory change pertaining to a substantive right is not retroactive unless the legislature so provides. The 1984 amendment is substantive. It *760tells the school board what decision it shall make pertaining to the taking of property when the hearing committee is unanimous in its recommendation. Thus, because the change is not procedural and the legislature did not make it retroactive, the 1984 amendment is inapplicable to this case.

In Cleveland Board of Education v. LaFleur, 414 U.S. 632, 646-47, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974), the United States Supreme Court made the following statement about due process which is relevant here:

“ ‘[T]he Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.’ ” (Quoting Stanley v. Illinois, 405 U.S. 645, 656, 31 L. Ed. 2d 551, 92 S. Ct. 1208 [1972].)

16A Am. Jur. 2d, Constitutional Law § 806, pp. 955-56, makes this comment:

“The guaranty of due process of law is one of the most important to be found in the Federal Constitution or any of the amendments; it has been described as the very essence of a scheme of ordered justice, and it has been said that without it the right of private property could not be said to exist, in the sense in which it is known to our laws.
“Due process of law is the primary and indispensable foundation of individual freedoms; it is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise. The fundamental guaranty of due process is absolute, and not merely relative. It does not have regard merely to enforcement of the law, but searches also the authority for making the law, and it is not merely a political right, but is a legal right assertable in the courts. By reason of this guaranty it has been stated as a general principle that everyone is entitled to the protection of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions and have long been recognized under the common-law system, and which are not infrequently designated as ‘law of the land.’ The right is of such importance that the people have never delegated to either the state or federal government the power to deprive a person of property except by observing its requirements. A state’s obligations under the Fourteenth Amendment are not simply generalized ones; rather, the state owes to each individual that process which, in light of the values of a free society, can be characterized as due.”

Learning had an absolute due process right to a board decision subject to court and appellate review. This he was denied. The merits of the nonrenewal of Learning’s contract are not before us. *761If Learning did not receive due process, there was no nonrenewal. That is the question in this case.

If the majority opinion stands, it is stating that due process is selective and that only those with good cause are entitled to it. That is not the law. All are entitled to due process in this country; the guilty, the innocent, the breachers of contracts. The Constitution is not selective and that we are not privileged to draw conclusions from the facts and deny a litigant due process because we favor a given result. Result-oriented justice is government of men and not of law, directly contrary to the concept of the rule' of law.

I would reverse and remand.

Allegrucci, J., joins the foregoing dissenting opinion.