Davis v. Rhode Island Bd. of Regents for Ed.

• Court: Rhode Island Supreme Court
• Writing for the Court: BEVILACQUA; WEISBERGER
• Citation: Davis v. Rhode Island Bd. of Regents for Ed., 399 A.2d 1247, 121 R.I. 473 (R.I. 1979)
• Decision Date: 13 April 1979
• Docket Number: No. 77-20-M,77-20-M
• Parties: Everett A. DAVIS v. RHODE ISLAND BOARD OF REGENTS FOR EDUCATION et al. P.

Page 1247

399 A.2d 1247

121 R.I. 473

Everett A. DAVIS v. RHODE ISLAND BOARD OF REGENTS FOR EDUCATION et al.

No. 77-20-M.P.

Supreme Court of Rhode Island.

April 13, 1979.

[121 R.I. 479] Urso & Adamo, Natale L. Urso, Westerly, for petitioner.

Swan, Jenckes, Asquith & Davis, Harry Asquith, Edward W. Moses, Providence, for School Committee of the Town of Lincoln.

OPINION

BEVILACQUA, Chief Justice.

This is a petition for certiorari wherein the petitioner, Everett Davis (Davis), seeks review of a Superior Court judgment sustaining the decision of the Board of Regents. The Board of Regents affirmed the decision of the Commissioner of Education (commissioner), which upheld the dismissal of Davis by the Lincoln School Committee (school committee).

Davis began teaching in the Lincoln School Department in September 1963. He became tenured in 1966. On October 5, 1973, however, the school committee notified Davis that it was dismissing him from his teaching position. ¹ A dismissal hearing was later conducted over the course of nine sessions. ² All five members of the school committee convened at five of the sessions. Four members were present at three of the sessions, and three school committee members attended one session. After the hearing, the school committee decided to dismiss Davis from his teaching position immediately.

Davis appealed the decision of the school committee to the commissioner, ³ who heard the appeal pursuant to G.L.1956 (1969 Reenactment) § 16-13-4 ⁴ and § 16-49-6(8)(h). ⁵ After weighing the evidence and testimony presented at the school committee hearing, the commissioner found that "the charges were substantiated to the extent that a reasonable man would conclude that the School Committee had good and just cause to dismiss (Davis)."

Davis then appealed to the Board of Regents, which affirmed the decision of the commissioner, whereupon Davis appealed to the Superior Court. Before the Superior Court Davis argued that the absence of one or more school committee members from some of the hearing sessions deprived the school committee of jurisdiction to determine the controversy. Affirming the decision of the Board of Regents, the Superior Court upheld the validity of the school committee's decision because a quorum attended each of the hearing sessions. After the Superior Court judgment was entered, Davis filed a motion for relief pursuant to Super.R.Civ.P. 60(b), which the trial court denied. Meanwhile, Davis petitioned this court for a writ of certiorari. We denied the petition without prejudice on April 27, 1976. Later, on January 11, 1977, Davis again brought a petition for a writ of certiorari, contending that the Superior Court erred as a matter of law because § 16-13-4 required all of the school committee members to attend all nine of the hearing sessions. ⁶ We granted the second petition, referring to Fournier v. Standard Wholesale Co., 108 R.I. 744, 279 A.2d 403 (1971). Fournier stands for the proposition that when the issue of whether to allow a petition for certiorari is addressed solely to the discretion of this court, we shall not grant the petition where there has been an unreasonable and unexplained delay in seeking relief. Id. at 108 R.I. 747, 279 A.2d at 405. We thus requested the parties to brief and argue the issue of whether Davis had unreasonably and inexplicably delayed in seeking relief in this court. We shall address the delay issue before we reach the merits of Davis' petition.

I

Certiorari, a prerogative writ, Sahagian v. Superior Court, 47 R.I. 85, 88, 129 A. 813, 814 (1925), is the only means of obtaining review of the discretion exercised by the Superior Court in affirming or reversing a ruling of a local board. See, e. g., A. T. & G., Inc. v. Zoning Board of Review, 113 R.I. 458, 462, 322 A.2d 294, 296 (1974). In the absence of statutory jurisdiction, this court has discretion in determining whether to grant petitions for certiorari. See Latham v. State, 116 R.I. 245, 251, 355 A.2d 400, 403 (1976); Schiavulli v. School Committee, 114 R.I. 443, 445, 334 A.2d 416, 417 (1975); Mancini v. Superior Court, 77 R.I. 262, 265, 75 A.2d 300, 301 (1950). As in Fournier, we have refused to consider the merits of petitions filed by those who have unreasonably and inexplicably delayed in seeking relief. See also cases cited in Mancini v. Superior Court, 77 R.I. at 265, 75 A.2d at 301-02. In Fournier, the defendant delayed filing his petition for certiorari for approximately 40 months and attempted to explain that delay as the result of his inability to obtain a transcript. 108 R.I. at 747, 279 A.2d at 404-05. We denied the petition for certiorari because of what we deemed a lack of due diligence on the part of the defendant, combined with the passage of an unreasonable length of time before he sought relief in this court. Id. See also Sahagian v. Superior Court, 47 R.I. 85, 129 A. 813.

In the situation before us, Davis waited 81/2 months from April 27, 1976, when we denied his first petition for certiorari, until January 11, 1977 to re-petition this court. Nevertheless, we consider concurrently the length of the delay and the circumstances leading to the delay in deciding whether to grant a petition for certiorari. See Fournier v. Standard Wholesale Co.,108 R.I. at 747, 279 A.2d at 405. In the situation before us, the delay of 81/2 months, although protracted, does not alone warrant a denial of Davis' petition for certiorari in the face of the extenuating circumstances peculiar to the situation before us.

In response to our request that the parties brief the delay issue, petitioner revealed that he waited until publication of Jacob v. Board of Regents for Education, 117 R.I. 164, 365 A.2d 430 (1976), which interpreted the term "full board" as used in G.L.1956 (1969 Reenactment) § 16-13-4, before he re-petitioned this court for certiorari. Because the Jacob decision treated the precise issue raised by petitioner, we are of the opinion that he has neither unreasonably nor inexplicably delayed in filing the present petition for certiorari. We now proceed to address the issue raised by Davis in his petition for certiorari.

II

In support of his petition Davis argues that the school committee is without jurisdiction to conduct a hearing when less than its full complement of members is present; that the school committee is without jurisdiction to conduct a hearing when less than a quorum is present; and that his attorney attempted to waive the right to a hearing before a full board for one session only and that this waiver did not refer to the absence of a quorum.

We can answer Davis' first two contentions by referring to Jacob where we held that § 16-13-4, which allows teachers to request a dismissal hearing before the "full board" of the school committee, requires the attendance of all committee members at such hearings. We premised the Jacob decision upon our ruling in May-Day Realty Corp. v. Zoning Board of Review, 77 R.I. 469, 77 A.2d 539 (1950), that matters otherwise properly before the zoning board cannot be decided by less than all of its members. Id. at 474, 77 A.2d at 542. Moreover, a full board must be in attendance at all times during the hearing. See Bove v. Board of Review, 95 R.I. 197, 199-200, 185 A.2d 751, 752 (1962), Citing May-Day Realty Corp. v. Zoning Board of Review, supra.

The rule enunciated in Jacobs mandates the conclusion...