dissenting.
I respectfully dissent.
In my view, § 22-32-109.1(9)(e), C.R.S. 2001 (formerly codified at § 22 — 32—110(4)(c)), places a limit on a school board’s general power to discipline and dismiss employees. In this sense, I agree with the holding in McIntosh v. Board of Education, 999 P.2d 224 (Colo.App.2000). Therefore, it seems incongruous to me that the school board is given the initial determination as to whether its action in dismissing an employee is proscribed by the statute and then according that determination judicial deference as the majority holds.
However, I disagree with the division in McIntosh that mandamus pursuant to C.R.C.P. 106(a)(2) is the appropriate remedy under these circumstances. Mandamus lies only when there is a clear legal right, a clear legal duty, and no other available remedy. Mandamus deals with ministerial acts, not acts involving discretion. See Jones v. Colorado State Board of Chiropractic Examiners, 874 P.2d 493 (Colo.App.1994).
I also disagree with the majority that the appropriate remedy here is a judicial review pursuant to C.R.C.P. 106(a)(4). Nor do I agree with the majority that this case should be distinguished from McIntosh by virtue of the fact that here the school district held a hearing. By distinguishing McIntosh, rather than disapproving of it, the majority implies that it is good law in those instances in which the school district did not accord the employee a hearing, a proposition with which I also disagree.
In my view, the discharged or disciplined employee has a remedy under C.R.C.P. 57, in a proceeding for declaratory judgment. In a C.R.C.P. 57 proceeding, the issue is whether the dismissal or discipline was in violation of the statute, and the court may impose injunc-tive relief if it determines that a violation has occurred. Such proceeding would not be a review of the school district’s action, which would be accorded no deference. See C.R.C.P. 57(i).
It is apparent that the General Assembly is concerned about discipline in the public schools and seeks to protect school boards, teachers, and other persons who act in good faith and in compliance with a disciplinary code. The statute protects these entities and persons from civil liability by granting immunity from criminal liability by according an affirmative defense, and from allegations of child abuse by excluding good faith compliance with a disciplinary code from the definition of child abuse. See § 22-32-109.1(9), C.R.S.2001 (formerly codified at § 22-32-110(4)(a)(I)(III), (b)).
Then, § 22-32-109.1(9)(e) gives similar protections to a teacher or any other person from the school board by prohibiting the school board from nonrenewal of an employment contract, taking any disciplinary action, including dismissal, or making any note in an employment record. It is apparent that, for whatever reason, the General Assembly has concluded that these persons need specific protection from the public, prosecutors, and school boards. To make a school board the initial arbiter of whether its action violates the statute, and then to give that decision the deference normally accorded in an administrative review pursuant to C.R.C.P. 106(a)(4) dilutes the protection accorded by the statute and the General Assembly.
Therefore, because the trial court, albeit for the wrong reasons, conducted a full hearing, made appropriate findings of fact and conclusions of law, and ordered plaintiffs reinstatement, I would affirm.