(dissenting).
Fundamental in this nation’s system of government is a system of checks and balances created by a legislative, executive and judicial branch of government. School boards are created by state statute pursuant to constitutional mandate to achieve a general and uniform system of public schools equally open to all, and to provide the people the advantages and' opportunities of an education. People whose lives are vitally affected by administrative boards such as a school board have constitutional guarantees, separate and apart from state laws, to insure that they are given fair hearings. A twenty-year veteran teacher of the Rapid City Public Schools is entitled to due process to determine if she will be stripped of her livelihood. The question in this case is whether or not she received due process. The trial court did not think so and neither do I.
By virtue of Mrs. Moran’s tenure as a teacher in the Rapid City School System, under this state’s continuing contract law, she had a property right in and to her contract with the Board of Education and a reasonable expectation that her contract would continue. This entitled her to due process of law in accordance with the principles expressed in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). This position was likewise taken in the case of Schneider v. McLaughlin Independent Sch. Dist., 241 N.W.2d 574 (S.D. 1976).
The requirements of due process vary within the context of each individual set of facts.* The teacher was entitled to have a meaningful hearing presided over by an impartial decision maker. Instead, one Lyle Baker, president of the Board of Education, who had a son in her classroom and who was thus actually interested and personally involved therein, presided over the teacher’s hearing. I maintain he was biased. Bias is not an ugly word. It is an inclination of temperament or outlook. It is a bent, tendency or trend to think in a preconceived way. During the course of the hearing, he took the chief role in questioning witnesses. His wife’s name headed a list of parents requesting that their children not be placed in Mrs. Moran’s room, but instead be placed in the other sixth grade teacher’s room for the 1976-77 school year. At the hearing Mr. Baker decided all matters of procedure, swore in all witnesses, and ruled on the admission of evidence. With his wife heading the list of protestants, his mind was not in that free and open state of impartiality. In determining the issue of impartiality, not only must the procedures be fair, the very appearance of complete fairness must also *603be present. Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Wall v. American Optometric Association, Inc., 379 F.Supp. 175 (N.D.Ga.1974); Mordhorst v. Egert, 88 S.D. 527, 223 N.W.2d 501 (1974).
In the testimony of Mr. Lyle Baker, the following questions and answers were elicited:
Q. Now, calling your attention then to the Exhibit that was introduced that you talked about containing a list of several parents, I’d like to have you look at name number one, please. What is the name?
A. Mrs. June Baker.
Q. That’s your wife?
A. That’s correct.
Q. Thank you, sir. So you had a son in the sixth grade at Wilson School during this entire matter, is that right?
A. During which entire matter?
Q. During the hearing on April 19th, sir?
A. That’s correct.
Q. And did you consider this at all in your deliberations? Did you ever consider disqualifying yourself, sir?
A. I think the thought entered my mind, yes.
Q. But you did not?
A. That’s correct.
* * * * * *
Q. As chairman, as a matter of fact?
A. That’s correct.
There were two exhibits, both containing conclusions and rank hearsay, admitted into evidence by Mr. Baker. Mr. Baker refused to permit the teacher and her lay counsel an opportunity to see these two exhibits, marked B and C, prior to the exhibits being admitted into evidence. Exhibit B was compiled by the principal. At the top, followed by nineteen signatures, it expresses: “The following people requested the other Sixth Grade Teacher or requested their child not be in Mrs. Moran’s room for the 1976-77 school year.” The middle part of Exhibit B listed the names of two parents who complained. The bottom of the page reflects two parents who requested that their child not be in Mrs. Moran’s room for the 1977-78 school year. Not one reason was cited or specific complaint noted. No cross-examination was afforded. Mr. Baker summarily denied Mrs. Moran and her lay counsel an opportunity to see Exhibit B. Lay counsel made a timely objection and objection was overruled.
I do not believe in this kind of clandestine justice. Mrs. Moran and her lay counsel had no opportunity to refute this list, qualify it, or meet it by calling witnesses to ameliorate its highly damaging effect. Lay counsel requested a continuance of the hearing until he and Mrs. Moran had an opportunity to contact the parents who were named in the list. Mr. Baker denied it, expressing that the hearing had already been postponed once and that the board would like to get the case over with as it was getting late. Although Mr. Baker was not legally trained, he ought not to be exonerated from a sense of fair play. He knew he had a direct interest in the outcome and he should have recused himself. Administrative proceedings are not an exception to the requirement of due process.
The absence of procedural safeguards is again evidenced by Mr. Baker’s refusal to permit Mrs. Moran and her lay counsel to see or question a mother’s handwritten letter, marked Exhibit C, whose child was under Mrs. Moran’s instruction. It was admitted into evidence over timely objection. I view all of this as a violation of constitutional due process. “ ‘The fundamental requisite of due process ... is the opportunity to be heard.’ [citation omitted] The hearing must be ‘at a meaningful time and in a meaningful manner.’ [citation omittedj” Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287, 299 (1970). See also, Hortonville Dist. v. Hortonville Ed. Asso., 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976).
The United States Supreme Court in Goldberg, supra, further stated:
*604What we said in Greene v. McElroy, 360 U.S. 474, 496-497, 3 L.Ed.2d 1377, 1390, 1391, 79 S.Ct. 1400 (1959), is particularly pertinent here:
“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment . . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.”
397 U.S. at 269-70, 90 S.Ct. at 1021, 25 L.Ed.2d at 300.
Our state law, through the authorization of a trial de novo, permits an independent inquiry into the facts. Under the Mortweet v. Ethan Bd. of Ed., Davison Cty., 241 N.W.2d 580 (S.D.1976) decision, referred to in the majority opinion, the trial court in this case correctly took testimony for the limited purpose of determining the legality of the School Board’s decision. The trial court could not judicially approve the tainted proceedings, bias of the Board chairman, or procedural errors, and thus remanded Mrs. Moran’s case to the School Board for a fair rehearing. Therefore, the trial court properly concluded that it should not rule upon the evidence as to whether the School Board’s decision was arbitrary, capricious, or an abuse of discretion. Under SDCL 13-46-6, the legislature has given broad and sweeping powers to the circuit judge to enter “[Sjuch final judgment or order as the circumstances and every right of the case may require and such judgment or order as may be enforced by writ of execution, mandamus, or prohibition, or by attachment as for contempt.” Having determined that the hearing was unfair and a violation of due process, the trial court entered such order as it believed the circumstances and every right of the case required. Specifically, the judicial branch of government, acting as a check on the legislative branch of government, which both constitutionally and legislatively it was empowered to do, ordered that:
(1) The decision of the Board of Education of April 19, 1977, not to renew Mrs. Moran’s teaching contract was reversed and rescinded and her teaching contract was reinstated retroactively to the date it expired under the Board decision, the contract to continue in full force and effect unless terminated after rehearing in accordance with the trial court’s decision;
(2) The District was to pay Mrs. Moran all salary, allowances and monetary benefits in the amount to which she would have been entitled had the Board’s decision been to renew her teaching contract, the payments to continue unless and until her teaching contract was terminated following a rehearing pursuant to the Court’s remand;
(3) The proceedings were remanded to the Board of Education for a rehearing pursuant to SDCL 13-43-10.1;
(4) Board President Baker was disqualified from participating in any future proceedings concerning Mrs. Moran; and
(5) The rehearing .before the Board was to be conducted in accordance with the guidelines set forth in SDCL 1-26-17 through 1-26-26.
I would conclude with the eloquent words of Judge Adams who, in addressing the importance of due process in administrative proceedings, expressed:
*605The absence of fundamental fairness in the proceedings followed by the South Dakota Board of Examiners in Optometry spawned this litigation. The trial court was asked to examine the situation and concluded that due process requirements had been violated. We affirm and decide no more. However, this and other similarly constituted boards should reexamine their structures and procedures, remembering that the final refuge people have in all governmental procedures is that of due process, the eternal friend of justice and unrelenting foe of undue passion.
Mordhorst, supra, 223 N.W.2d at 506.
This twenty-year veteran of the teaching profession is without a contract, job, salary, and retirement at this critical juncture of her life. Time is of the essence and I would affirm the trial court in toto.
Minimal requirements of due process [with respect to termination of teacher’s employment] are generally recognized to be: (1) clear and actual notice of the reasons for termination in sufficient detail to enable him or her to present evidence relating to them; (2) notice of both the names of those who have made allegations against the teacher and the specific nature and factual basis for the charges; (3) a reasonable time and opportunity to present testimony in his or her own defense; and (4) a hearing before an impartial board or tribunal. Brouillette v. Board of Dir. of Merged Area IX, Etc., 519 F.2d 126, 128 (8th Cir. 1975).