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No. 13078
I N THE SUPREME COURT OF THE STATE OF M N A A OTN

SCHOOL DISTRICT No. 1 2 , PHILLIPS COUNTY, MONTANA, -vs DOLORES HUGHES, County S u p e r i n t e n d e n t of Schools o f P h i l l i p s County, Montana, and DOLORES COLBURG, S u p e r i n t e n d e n t of P u b l i c I n s t r u c t i o n o f t h e S t a t e of Montana, Defendants and Respondents, and M N A A EDUCATION ASSOCIATION and OTN V. M. JOHNSON, Intervenors.

-

P l a i n t i f f and A p p e l l a n t ,

Appeal from:

D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t , Honorable R. J. Nelson, J u d g e p r e s i d i n g .

Counsel of Record: For Appellant : Smith, Smith and S e w e l l , Helena, Montana Chadwick H. Smith a r g u e d , Helena, Montana F o r Respondents : C a r r o l l Blend a r g u e d , G r e a t F a l l s , Montana Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena, Montana Donald D. Cole, County A t t o r n e y , M a l t a , Montana For Intervenors: H i l l e y and L o r i n g , G r e a t F a l l s , Montana E m i l i e L o r i n g a r g u e d , G r e a t F a l l s , Montana

Submitted:

May 2 8 , 1976

PER CURIAM: T h i s a p p e a l i s from amended f i n d i n g s of f a c t , conc l u s i o n s of l a w and judgment of t h e d i s t r i c t c o u r t , Lewis and C l a r k County, wherein t h e d i s t r i c t c o u r t r u l e d s e c t i o n s 75-6107, 75-5811 and 75-5709,
R.C.M.

1947 a r e " n o t uncon-

s t i t u t i o n a l when c o n s t r u e d i n a c c o r d a n c e w i t h t h e p r e c e d i n g f i n d i n g s of f a c t . " Two i s s u e s a r e p r e s e n t e d f o r r e v i e w :
1.

Whether t h e l a s t two s e n t e n c e s of s e c t i o n 75-6107

and a l l o f s e c t i o n s 75-5811 and 75-5709 a r e i n v i o l a t i o n of
A r t i c l e X I S e c t i o n 8 , 1972 Montana C o n s t i t u t i o n ?

2.

Whether t h e same s t a t u t e s v i o l a t e A r t i c l e V I I ,

S e c t i o n 4 ( 2 ) , 1972 Montana C o n s t i t u t i o n ? The f a c t s i t u a t i o n i s s i m p l e and u n d i s p u t e d . stipulation states: "That A. W. U n t e r s e h e r i s S u p e r i n t e n d e n t o f t h e p u b l i c s c h o o l d i s t r i c t s i t u a t e d a t Saco, P h i l l i p s County i n t h e S t a t e of Montana, and t h a t he i s t h e e x e c u t i v e o f f i c e r o f t h e Board of T r u s t e e s of s a i d school d i s t r i c t ; t h a t s a i d school d i s t r i c t h i r e d V.M. ( V i c ) Johnson f o r t h e s c h o o l y e a r 1974-1975 a s a s c h o o l i n s t r u c t o r f o r v o c a t i o n a l a g r i c u l t u r e a s a non-tenure t e a c h e r . "That s a i d s c h o o l d i s t r i c t n o t i f i e d M r . V. M. ( V i c ) Johnson, i n w r i t i n g , t h a t h i s employment was t e r m i n a t e d on November 7 , 1974, d i s m i s s i n g him on incompetency and u n f i t n e s s ; t h a t M r . V. M. ( V i c ) Johnson d i s c o n t i n u e d t e a c h i n g on November 7 , 1974, and h a s n o t t a u g h t f o r t h e p l a i n t i f f s c h o o l d i s t r i c t since. "Mr. V. M. ( V i c ) Johnson a p p e a l e d t h e d e c i s i o n o f t h e p l a i n t i f f school d i s t r i c t t o t h e Superintendent of S c h o o l s o f P h i l l i p s County and s a i d County Superi n t e n d e n t of Schools issued n o t i c e of hearing t h e a p p e a l , s e t f o r November 1 5 and t h e r e a f t e r gave f u r t h e r n o t i c e c o n t i n u i n g t h e h e a r i n g t o December 1 9 , 1974; t h a t s a i d h e a r i n g was e n j o i n e d by t h e temporary i n j u n c t i o n of t h i s C o u r t b e f o r e it w a s held. " A p p e l l a n t s c h o o l board a r g u e s t h a t under t h e 1972 Montana C o n s t i t u t i o n t h e s t a t u t o r y law p r o v i d i n g f o r h e a r i n g s by t h e c o u n t y and s t a t e s u p e r i n t e n d e n t s i n c a s e s where t e a c h e r s '
A written

c o n t r a c t s a r e a l l e g e d l y t e r m i n a t e d i l l e g a l l y h a s been done away w i t h by t h e 1972 C o n s t i t u t i o n a l p r o v i s i o n s o f d i r e c t a p p e a l t o t h e d i s t r i c t c o u r t under A r t i c l e V I I , S e c t i o n 4 ( 2 ) , 1972 Montana C o n s t i t u t i o n . A r t i c l e X , S e c t i o n 8 , 1972 Montana C o n s t i t u t i o n provides : "School D i s t r i c t T r u s t e e s . The s u p e r v i s i o n and c o n t r o l of s c h o o l s i n e a c h s c h o o l d i s t r i c t s h a l l be v e s t e d i n a board of t r u s t e e s t o be e l e c t e d a s p r o v i d e d by l a w . "
Article VII,

S e c t i o n 4 ( 2 ) , 1972 Montana C o n s t i t u t i o n p r o v i d e s :

" ( 2 ) The d i s t r i c t c o u r t s h a l l h e a r a p p e a l s from i n f e r i o r c o u r t s a s t r i a l s anew u n l e s s o t h e r w i s e The l e g i s l a t u r e may p r o v i d e f o r p r o v i d e d by law. d i r e c t r e v i e w by t h e d i s t r i c t c o u r t o f d e c i s i o n s of a d m i n i s t r a t i v e agencies." S t a t u t o r y p r o v i s i o n s concerned w i t h t h e d i s m i s s a l of t e a c h e r s under c o n t r a c t a r e s e c t i o n s 75-6107, 5709, R.C.M. 1947, which p r o v i d e : 75-5811 and 75-

D i s m i s s a l of t e a c h e r under c o n t r a c t . "75-6107. The t r u s t e e s o f any d i s t r i c t may d i s m i s s a t e a c h e r b e f o r e t h e e x p i r a t i o n o f h i s employment c o n t r a c t f o r i m m o r a l i t y , u n f i t n e s s , incompetence, o r v i o l a t i o n o f t h e a d o p t e d p o l i c i e s o f such t r u s t e e s . Any t e a c h e r who h i s been d i s m i s s e d may i n w r i t i n g w i t h i n t e n ( 1 0 ) d a y s a p p e a l such d i s m i s s a l t o t h e county superintendent; following such appeal a h e a r i n g s h a l l be h e l d w i t h i n t e n ( 1 0 ) d a y s . If t h e county superintendent, a f t e r a hearinq, d e t e r mines t h a t t h e d i s m i s s a l by t h e t r u s t e e s w a s made w i t h o u t good c a u s e , he s h a l l o r d e r t h e t r u s t e e s t o r e i n s t a t e such t e a c h e r and t o compensate such t e a c h e r a t h i s c o n t r a c t amount f o r t h e t i m e l o s t d u r i n q t h e pendinq o f t h e a p p e a l . " (Emphasis added.) (The emphasized p o r t i o n o f t h i s s t a t u t e i s t h e portion challenged.)
"75-5811. C o n t r o v e r s y a p p e a l s and h e a r i n g s . The c o u n t y s u p e r i n t e n d e n t s h a l l h e a r and d e c i d e a l l m a t t e r s of controversy a r i s i n g i n h i s county a s a r e s u l t o f d e c i s i o n s of t h e t r u s t e e s of a d i s t r i c t i n t h e c o u n t y . When a p p e a l s a r e made under s e c t i o n 75-6104 r e l a t i n g t o t h e t e r m i n a t i o n of s e r v i c e s o f a t e n u r e t e a c h e r o r under s e c t i o n 75-6107 r e l a t i n g t o t h e d i s m i s s a l o f a t e a c h e r under c o n t r a c t , t h e c o u n t y s u p e r i n t e n d e n t may a p p o i n t a q u a l i f i e d a t t o r n e y a t law t o a c t a s a

legal adviser who shall assist the superintendent in preparing findings of fact and conclusions of law. Subsequently, either the teacher or trustees may appeal to the superintendent of public instruction under the provisions for appeal of controversies in this title. Furthermore, he shall hear and decide all controversies arising under : "(1) section 75-6315 or 75-6316 relating to the approval of tuition applications; or "(2) any other provision of this title for which a procedure for resolving controversies is not expressly prescribed. "The county superintendent shall hear the appeal and take testimony in order to determine the facts related to the controversy and may administer oaths to the witnesses that testify at the hearing. He shall prepare a written transcript of the hearing proceedings. The decision on the matter of controversy which is made by the county superintendent shall be based upon the facts established at such hearing. "The decision of the county superintendent may be appealed to the superintendent of public instruction and, if it is appealed, the county superintendent shall supply a transcript of the hearing and any other documents entered as testimony at the hearing to the superintendent of public instruction." "75-5709. Controversy appeal. The superintendent of public instruction shall decide matters of controversy when they are appealed from: "(1) a decision of a county superintendent rendered under the provisions of section 75-5811; or "(2) a decision of a county transportation committee rendered under the provisions of section 75-7015. "The superintendent of public instruction shall make his decision on the basis of the transcript of the fact-finding hearing conducted by the county superintendent or county transportation committee and documents presented at the hearing. The superintendent of public instruction may require, if he deems necessary, affidavits, verified statements, or sworn testimony as to the facts in issue. The decision of the superintendent of public instruction shall be final, subject to the proper legal remedies in the state courts. Such proceedings shall be commenced no later than sixty (60) days after the date of the decision of the superintendent of public instruction. "In order to establish a uniform method of hearing and determining matters of controversy arising under this title, the superintendent of public instruction shall prescribe and enforce rules of

practice and regulations for the conduct of hearings and the determination of appeals by all school officials of the state." Issue 1. Appellant school board claims the 1972 Montana

Constitution grants control and supervision of the schools of each district solely to the district boards of trustees and that control is not to be shared with any other governmental entity. On its face, this assertion is not accurate. ~rticle

X I Section 9 (3)(a), 1972 Montana Constitution provides:

"There is a board of public education to exercise general supervision over the public school system and such other public educational institutions as may be assigned by law. Other duties of the board shall be provided by law." Appellant claims that whatever control that is shared with the board of public education does not apply to county or state superintendents. The fundamental purpose of construing a constitutional provision is to give effect to the intent of its framers and the people who adopted it. State ex rel. Toomey v. State Board The rule is

of Examiners, 74 Mont. 1, 238 P. 316, 320 (1925).

well established that, in construction of a constitution, recourse may be had to proceedings of the constitutional convention. 16 Am Jr 2d, Constitutional Law 5 88; Board of Public Mont

Education v. Judge, 670 (1975).

.

,

538 P.2d 11, 14, 32 St.Rep.

From a reading of the Convention transcripts, it

is clear the delegates contemplated only a preservation of the powers of the local boards of trustees, not an expansion of those powers. In the Transcript of Proceedings, 1972 Montana

Constitutional Convention, Vol. VIII, page 6259 Delegate Champoux stated:

* * * no matter what we say, perhaps, they'd still have that fear that the local school districts are going to lose some control and some power. And if you will note in my remarks when we get to nine, ten, and eleven, you will note
I'

that we have eliminated the word, control in the new public board of education where it is in the old Constitution, and only use the word, supervise. By this amendment the intent is shown, I think, that this body does want local control to remain with the local school districts and I heartily support it." (Emphasis supplied.) Delegate Heliker, at p. 6258, iterated:

" * * * Now, this committee has not provided, I notice, for autonomy in the Constitution for local schoolboards althoLgh that autonomy is provided in the statutes which make the local school boards bodies corporate. At the same time, however, the committee proposal in section eleven provides for autonomy to a certain extent for the board of regents which they propose to establish as a constitutional board; and I feel, therefore, that we should give constitutional recognition and status to the local boards to--first of all, to allay the fears which have been expressed, which I think are well founded concerning the preservation of local autonomy and, secondly, to give parallel treatment to the governing boards of the public schools as well as the public universities and colleges." (Emphasis supplied.)
The only other delegate to speak on the section simply urged the local school boards be given constitutional status. From the underscored material, it appears the delegates were chiefly concerned with the preservation of existing local board control and power--not with expansion of local control and power. The delegates wished to insure that the state legislature would not strip the local boards of their powers. Given this analysis, an examination of the authority local boards possessed at the time of the convention becomes important. The Montana Supreme Court decided very early that

a school district was a public corporation with limited powers, exercising through its board only such authority as is conferred by law, either expressly or by necessary implication. Finley

v. School District No. 1, 51 Mont. 411, 415, 153 P. 1010 (1915);

State ex rel. School District No. 4 v. McGraw, 74 Mont. 152, 240
P. 812 (1925).

Local boards of trustees have always been held Woolsey v. Carney, 141 Mont.

subject to legislative control.

476, 378 P.2d 658 ( 1 9 6 3 ) ; A b s h i r e v . School D i s t r i c t , 1 2 4

; 09

Mont. 2 4 4 , 220 P.2d 1058 ( 1 9 5 0 ) ; Wyatt v . School D i s t r i c t No.

.4-& 148 Mont. 83, 417 P.2d 221, 22 ALR3d 1039 (1966) ; Team-

sters E t c . Local No. 45 v . Cascade County School D i s t . No. 1,
162 Mont. 277, 511 P.2d 339 ( 1 9 7 3 ) . I n A b s h i r e , f o r example,

t h e C o u r t h e l d t h a t a l o c a l board of t r u s t e e s c o u l d n o t impose
a mandatory r e t i r e m e n t a g e t h a t d i f f e r e d from s t a t e s t a t u t e .

Wyatt h e l d t h a t , by f a i l i n g t o f o l l o w t h e s t a t u t e s i n d i s m i s s i n g a t e a c h e r , t h e b o a r d ' s d i s m i s s a l w a s v o i d f o r want of j u r i s diction. S t a t u t o r y v a c a t i o n b e n e f i t s were extended t o n o n c e r t Thus,

i f i e d s c h o o l d i s t r i c t employees i n Teamsters Local No. 45.

l o c a l b o a r d s have been h e l d s u b j e c t t o s t a t u t o r y r e q u i r e m e n t s - a l t h o u g h t h e C o u r t h a s h e l d t h a t where t h e l e g i s l a t u r e h a s f a i l e d t o p r e s c r i b e p o l i c y , t h e l o c a l b o a r d s have i n f e r r e d g e n e r a l powers t o a c t .
4 4 P.

Campana v. C a l d e r h e a d , 17 Mont. 548,

83,

(1896).

The s t a t u t e s i n q u e s t i o n w e r e i n e x i s t e n c e a t t h e t i m e t h e c o n s t i t u t i o n a l a r t i c l e was a d o p t e d b y - t h e c o n v e n t i o n and were a v a i l a b l e f o r c o n s i d e r a t i o n o f t h e c o n v e n t i o n . Further,

a l o n g series of c a s e s d e c i d e d p r i o r t o t h e c o n v e n t i o n had c o n s i s t e n t l y upheld t h e a p p e a l s p r o c e d u r e . D i s t r i c t v . Trumper, 69 Mont. 468, 222 P. S t a t e e x r e l . School 1064 ( 1 9 2 4 ) ; Kelsey v .

School D i s t r i c t No. 25, 84 Mont. 453, 459, 460, 276 P. 26 ( 1 9 2 9 ) ; P e t e r s o n v . School Board, 73 Mont. 4 4 2 , 236 P. 670 ( 1 9 2 5 ) ; S t a t e ex r e l . S a x t o r p h v . D i s t r i c t C o u r t , 128 Mont. 353, 275 P.2d 209 ( 1 9 5 4 ) ; S t a t e e x r e l . McDonnell v . Musburger, 1 1 Mont. 579, 1
1 1 P.2d 1038 ( 1 9 4 1 ) . 1

Kelsey and S a x t o r p h s p e c i f i c a l l y i n v o l v e d I n t h e s e c a s e s t h e Court

a p p e a l s from t e r m i n a t e d c o n t r a c t s .

refused t o take j u r i s d i c t i o n over t h e matter unless t h e appeals p r o c e s s had been e x h a u s t e d .
A s t h e C o u r t s a i d i n Kelsey:

"From t h e a c t i o n o f t h e board i n d i s c h a r g i n g

the plaintiff she had a plain, speedy and adequate remedy--by appeal first to the county superintendent, and having been unsuccessful in that, to the superintendent of public instruction. * * *

" * * * The upshot, then, is * * * that the plaintiff had a plain, speedy and adequate remedy by appeal to the school officers, .in whom the law reposes, by reason of their special fitness to decide, the duty of settling the controversy, .I which remedy the plaintiff did not exhaust * * *'
Thus, when the constitutional convention acted to preserve the existing power of the local boards of trustees, that power had already been limited by the statutes in question and the court affirmation of the statutes. Whether or not the statutes

would have been constitutional if enacted after the Constitution was adopted is a question not decided here. Issue 2. Appellant contends that Article VII, Sec-

tion 4 ( 2 ) provides that review of board of trustee decisions be made only in the district court and, therefore, any reviews by other governmental units are unconstitutional. Article VII, Section 4 (2) provides : "The district court shall hear appeals from inferior courts as trials anew unless otherwise provided by law. The legislature may provide for direct review by the district court of decisions of administrative agencies." (Emphasis supplied. ) The use of the word "may" indicates the provision is permissive. The legislature has - adopted legislation purnot

suant to the section providing for appeal to the district court from the school board. The only legislation dealing with

appeals from school board decisions provides for appeal through the county and state superintendents. Appellant's argument is therefore without merit. Further, to adopt appellant's argument, the local boards of trustees would have to be recognized as separate administrative agencies, distinct from the rest of the educational administrative structure. As previously mentioned, the Montana

Supreme Court has consistently viewed the local boards as part of the administrative structure and held that appeals directly from the local boards will be rejected because administrative remedies were not exhausted. Saxtorph; and McDonnell. See: Trumper; Kelsey; Peterson;

On the other hand, the Court has

held that decisions by the State Superintendent of Public Instruction are reviewable by the courts. Mont. 197, 399 P.2d 994 (1965). In Montana, there has traditionally been a reluctance on the part of the courts to intervene in educational decision making. As the Court stated in Kelsey: "It is unquestionably the policy of this state, as declared by the legislative assembly, that ordinary school controversies shall be adjusted by those who are specially entrusted with that duty. It is not the policy to encourage resort to the courts in such matters. So long as the school officers act legally and within the power expressly conferred upon them the courts will not interfere." Adoption of appellant's contention would be contrary to this policy. There is no doubt the local boards of trustees are subject to legislative control and do not have control over the local schools to the exclusion of other governmental entities.
AS the Court stated in Jay v. School ~istrictNo. 1, 24 Mont.

Potter v. Miller, 145

219, 225, 61 P. 250 (1900), it is not for the courts to say whether the provisions of the statute are wise or not; the duty of the courts is to require enforcement thereof as they find it. Whether or not the statutory provisions constitute an exercise of sound policy decision making is not at issue here. What is

at issue is whether or not the legislature had the power to enact the statutes in controversy. affirmative. The judgment of the district court is affirmed. In this case, the answer is

Hon. W. W. ~ e s s l e ~District Judge, , 1 sitting in place of Mr. Chief Justice James T. Harrison.

Hon. E. Gardner Brownlee, District Judge, sitting in place of Mr. Justice Wesley Castles.



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