Bowing v. Board of Trustees of Green River Community College, Dist. No. X
| Decision Date | 01 May 1975 |
| Docket Number | No. 43380,43380 |
| Citation | 85 Wn.2d 300,534 P.2d 1365 |
| Parties | Shirley BOWING, Petitioner-Respondent, v. BOARD OF TRUSTEES OF GREEN RIVER COMMUNITY COLLEGE, DISTRICT NO. X, State of Washington, Respondent-Petitioner. |
| Court | Washington Supreme Court |
Jones, Grey, Bayley & Olsen, Dexter A. Washburn, Kevin C. McMahon, George W. Steers, Seattle, for respondent.
Slade Gorton, Atty. Gen., Thomas L. Anderson, Asst. Atty. Gen., Olympia, for petitioner.
This matter is before the court upon the granting of petitions of both parties for review of the decision of the Court of Appeals, Division One, in Bowing v. Board of Trustees, 11 Wash.App. 33, 521 P.2d 220 (1974). It is a suit by a tenured faculty member, alleging that she was wrongfully discharged and seeking reinstatement.
The Superior Court granted the plaintiff's motion for summary judgment, holding that prescribed procedures had not been followed by the Board of Trustees of the college and that she had consequently been denied due process of law. The procedures followed are set forth in some detail in the opinion of the Court of Appeals, which reversed and remanded the case, and we will refer only to those which are involved in the issues before us.
At the superior court level, a partial summary judgment was entered on May 12, 1972. That judgment left open the question of damages and the amount of reasonable attorney fees, the court stating that unless the parties could stipulate as to the amounts, the facts would have to be established in open court. Four days later a judgment was entered, setting forth the amount of damages and the attorney fees allowed. The defendant appealed within 30 days of that judgment. However, the appeal was taken more than 30 days after the entry of the partial summary judgment on May 12.
The plaintiff moved in the Court of Appeals to dismiss the appeal because it was not taken within 30 days after the partial summary judgment was entered, citing ROA I--33. This motion was denied without comment. She asks this court to review the Court of Appeals' refusal to dismiss, contending that that court was without jurisdiction to hear the appeal.
The plaintiff's contention in this regard is grounded upon the theory that the partial summary judgment entered on May 12 was a final judgment, even though the amount of damages and attorney fees had not yet been determined. She relies upon CR 54(b), which provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties (shall not terminate the action as to any of the claims or parties), and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
It will be seen that a partial judgment is final only when there is a final judgment upon one or more claims. The plaintiff's claim in this case was not fully adjudicated until the amount of damages had been determined, including the attorney fees, which the court awarded as an element of damages. The plaintiff insists, however, that the defendant could have taken an appeal from the partial judgment and left the amount of damages and fees to be determined in a separate proceeding. Such a procedure would produce the very mischief which the rule was designed to prevent--the piecemeal trial and appeal of cases. The partial summary judgment was not a final judgment as to any claim or any party and therefore was not appealable under CR 54(b).
Since the appeal was taken within 30 days after the entry of final judgment, the Court of Appeals did not err in refusing to dismiss it.
Two questions which the Court of Appeals decided merit this court's attention. Error as to one of them is raised by the plaintiff, and review of the other is sought by the defendant. Both of these concern the interpretation of procedural rules involved in the administrative process.
Pursuant to RCW 28B.50.863, providing for a hearing by a review committee before dismissal of a tenured faculty member, RCW 28B.50.852, requiring the Board of Trustees to establish rules implementing the tenure statutes, and Green River Community College dismissal rule B12, a hearing was conducted before a committee, which found the two charges against the plaintiff to be unsubstantiated. The matter was then heard before the board, which reviewed the written record and listened to arguments of counsel. The board concurred with the review committee that one charge had not been proven, but remanded the case for reconsideration of the second charge, in accordance with the college's rule B12, pointing out certain evidence which it felt substantiated the second charge. The review committee, after reconsideration, adhered to its original position. The board then overruled the committee's findings and dismissed the plaintiff, a disposition also authorized by rule B12.
In reviewing this procedure, the Superior Court was called upon to interpret the statutes and rule referred to above. It construed these as placing exclusive fact-finding power in the review committee. The Court of Appeals reversed this holding, finding that the Board of Trustees was not bound by the review committee's findings. The plaintiff has asked this court to reinstate the judgment of the Superior Court upon this point.
We are of the opinion that the Court of Appeals correctly construed the applicable statutes and the rule promulgated by the college. RCW 28B.50.863 provides that the review committee shall hear the evidence and shall prepare and submit recommendations to the appointing authority (the Board of Trustees). Rule B12 provides for reconsideration by the committee if the board does not agree with its recommendation and provides that only after such reconsideration should the board make a final decision overruling the review committee. RCW 28B.50.864 provides that an appeal may be taken from the final decision of the board. Furthermore, RCW 28B.50.864, which authorizes a judicial review of a board's decision to dismiss, expressly adopted (at the time of the hearings involved in this action) 1 the provisions of the administrative procedure act, RCW 34.04. RCW 34.04.110 requires that board members personally consider the record and also requires that the board (the 'officials who are to render the decision') shall make findings of fact.
All of these considerations were noted by the Court of Appeals in reaching the decision that the board was not bound by the findings of the review committee (which in this case were negative in nature). We find that decision to be in accord with the manifest intent of the statutes and of the rule adopted by the college. It is also in accord with the general rule. See 2 Am.Jur.2d Administrative Law § 438 (1962).
Based upon its holding that the board had acted within its authority when it rejected the review committee's finding that the charges were not substantiated in the record, the Court of Appeals set aside the summary judgment. However, it sustained the trial court's holding that the board had failed to follow the requirements of RCW 34.04.110, and ordered the case remanded to the board with directions to afford the plaintiff an opportunity to be heard after serving her with a proposal for decision, including findings of fact and conclusions of law.
The defendant has asked the court to review this aspect of the decision of the Court of Appeals. It is acknowledged that our decision will not affect future proceedings in institutions of higher education, since the administrative procedure act no longer applies to them. Nevertheless, the rights of the parties in this case are affected, and amicus has urged the court to review the decision because it will have an effect upon the proceedings of many other administrative bodies.
RCW 34.04.110 provides:
Whenever in a contested case a majority of the officials of the agency who are to render the final decision have not heard or read the evidence, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision, including findings of fact and conclusions of law has been served upon the parties, and an opportunity has been afforded each party adversely affected to file exceptions and present written argument to a majority of the officials who are to render the decision, who shall personally consider the whole record or such portions thereof as may be cited by the parties. Oral arguments may be heard in the discretion of the agency.
The record shows that in this case not only did all the members of the board read the evidence which was presented to the review committee, but in addition they held a hearing and listened to arguments of counsel after they had read the record of the hearing. Nevertheless, the Court of Appeals held that the plaintiff had been denied due process because her counsel was not given another opportunity to argue the case after the committee, on remand, had adhered to its original findings and recommendation with respect to the second charge.
The Court of Appeals found the language of RCW 34.04.110 ambiguous and interpreted it as requiring that findings of fact, conclusions of law and a proposal for decision be submitted to the parties in any case where a majority of the decisionmaking officials have not heard the oral...
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