Francisco v. Board of Directors of Bellevue Public Schools, Dist. No. 405

• Decision Date: 26 June 1975
• Docket Number: No. 43477,43477
• Citation: 85 Wn.2d 575,537 P.2d 789
• Parties: Randy Lee FRANCISCO, Respondent, v. BOARD OF DIRECTORS OF the BELLEVUE PUBLIC SCHOOLS, DISTRICT NO. 405, Petitioner,
• Court: Washington Supreme Court

Page 575

85 Wn.2d 575

537 P.2d 789

Randy Lee FRANCISCO, Respondent, v. BOARD OF DIRECTORS OF the BELLEVUE PUBLIC SCHOOLS, DISTRICT

NO. 405, Petitioner,

No. 43477.

Supreme Court of Washington, En Banc.

June 26, 1975.

Siderius, Lonergan & Crowley, C. R. Lonergan, Jr., Seattle, for petitioner.

Cogdill & Deno, W. Mitchell Cogdill, Everett, for respondent.

WRIGHT, Associate Justice.

This matter comes before this Court after review was granted on November 19, 1974 (84 Wash.2d 1013). The sole question presented by the petition for review was: What is the scope of trial de novo by a superior court in a case involving discharge of a teacher?

This case arises out of conflicting theories of teaching philosophy. The school district adheres to an educational technique which stresses the teaching of basic skills, such as mathematics, English and science. Respondent-teacher, Randy Lee Francisco, adheres to a teaching principle where the student is left to pursue his or her own interests with the teacher acting in a passive role.

The school involved in this matter is Bellewood Elementary School. Bellewood is described as a transitional School, that is between the traditional school with self-contained classrooms and definite grade levels on the one hand and the open classroom type of school without grade levels on the other hand.

The program at Bellewood was developed and supervised by Dr. Ray Smith, who had been a teacher for 22 years and a principal for 14 years.

Dr. Smith took a sabbatical leave during the 1969--70 school year. Upon his return to his post as principal in August 1970, he discovered problems in the Bellewood school and started taking corrective steps.

Dr. Smith made three visitations to respondent's classroom, and shortly thereafter called the respondent and a 'team teacher' for a conference to set down guidelines for development of a teaching program. The teachers were advised to commence this program immediately.

Because of the principal's visitations and his observations of Francisco's classroom during the ensuing week, another conference was called on Monday, September 14, and the principal restated to Francisco his concern over what he had observed.

Thereafter, the principal visited Francisco's classroom every day and went past the room on a number of occasions. On Monday, September 21, another conference was called and he then issued the respondent a written memorandum. The memorandum recited that there had been seven meetings between himself and Francisco, who in the fourth week of school still had not developed an approved instructional program.

At a meeting on September 25, the principal told Francisco there had still been no compliance by Francisco with the memorandum of September 21, and he went over it again with Francisco--underlining the portions that he insisted upon being complied with immediately. During the ensuing week (September 28--October 2) Dr. Smith visited Francisco's classroom every day and concluded no changes had been made. On October 8, Francisco was relieved of his classroom duties.

A notice, as required by RCW 28A.58.450 specifying probable cause for the discharge of respondent, was given on October 23, 1970. The notice read in part: '(T)here is probable cause which is sufficient for your discharge as a teacher with the Bellevue School District.'

Respondent requested a hearing before the school board according to RCW 28A.58.450, and such a hearing was held. Thereafter, the respondent was discharged. Three reasons for discharge were given: (1) Insubordination, (2) refusal to teach basic skills, and (3) refusal to cooperate with team-teachers in implementing the school program.

An appeal to the Superior Court followed. Respondent prevailed. The court entered extensive findings of fact which were supported by substantial evidence. Under such a circumstance, an appellate court will not disturb the findings. Sylvester v. Imhoff, 81 Wash.2d 637, 503 P.2d 734 (1972).

The Superior Court found, among other things, that respondent was making efforts to comply with the traditional teaching form required by the principal, but that respondent neglected to communicate his efforts to the principal, causing a misunderstanding which the principal interpreted as insubordinate conduct. The Court concluded that respondent had not engaged in a 'deliberate and willful refusal to comply with a reasonable and lawful direction.'

The school board, on appeal, challenged the constitutional authority of the Superior Court to make the new and different findings and conclusions of law that served as the basis of reversal of the board's decision. RCW 28A.58.480, in providing the remedy of appeal to discharged teachers, states:

Any appeal to the superior court by an employee shall be heard de novo by the superior court. Such appeal shall be heard expeditiously.

It is appellant's contention that RCW 28A.58.480, in allowing a court to substitute its own judgment for that of the school board, is an unconstitutional attempt to vest a nonjudicial power in a constitutionally created court. The Court of Appeals affirmed the Superior Court in Francisco v. Board of Directors, 11 Wash.App. 763, 525 P.2d 278 (1974).

In reviewing the law on judicial review of administrative action, the constitutional jurisdiction of the superior court on appeal from agency action is as follows: If the power exercised by an agency is essentially administrative, the superior court, upon appeal provided by statute, is limited to a consideration of whether the agency acted arbitrarily, capriciously, or contrary to law. Household Finance Corp. v. State, 40 Wash.2d 451, 244 P.2d 260 (1952); In re Harmon, 52 Wash.2d 118, 323 P.2d 653 (1958). If the administrative agency performs an essentially judicial function, the superior court, on appeal from a decision of the board, has, if there is a statute so permitting, the constitutional power to allow a trial de novo. Floyd v. Department of Labor and Industries, 44 Wash.2d 560, 269 P.2d 563 (1954).

The scope of our examination must, therefore, narrow down to a determination of whether the school board's action in a teacher discharge situation constitutes an administrative function or a judicial function.

In the case of Floyd v. Department of Labor and Industries, supra, the Supreme Court outlined three tests to determine whether an administrative agency functions in a judicial capacity or not. First, whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make. Second, whether the function the administrative agency performs is one that courts historically have been accustomed to performing and had performed prior to the creation of the administrative body. The third test, which is adopted from Justice Holmes' statement in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908), discerns a judicial function in this manner:

A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.

A fourth test, in addition to the Floyd tests, or, perhaps, a restatement of the second Floyd test, for determining whether a particular function is 'judicial' in nature is found in Okanogan County School District v. Andrews, 58 Wash.2d 371, at page 374, 363 P.2d 129, at page 131 (1961) and quotes 3 Davis, Administrative Law Treatise, 390, 395, § 24.02.

'Perhaps as good a criterion as any for determining what is judicial is merely to compare the action in question with the ordinary business of courts: that which resembles what courts customarily do is judicial, and that which has no such resemblance is nonjudicial.'

(Footnote omitted.) The first two tests mentioned in Floyd are met in the instant case. The superior courts could have been charged in the first instance with deciding whether a school board's decision to terminate employment was meritorious. Historically, the superior courts did, before enactment of RCW 28A.58.450 and its predecessor statutes, determine whether discharge was wrongful. The teacher, in the early days of the state, when challenging a discharge, filed a complaint in superior court for breach of employment contract, with a prayer for money damages. Fitzgerald v. School District, 5 Wash. 112, 114, 31 P. 427 (1892); Splaine v. School District, 20 Wash. 74, 76--7, 54 P. 766 (1898); Kimball v. School District, 23 Wash. 520, 528--9, 63 P. 213 (1900); Van Dyke v. School District, 43 Wash. 235, 86 P. 402 (1906); Andrus v. Church, 117 Wash. 627, 631--2, 201 P. 917 (1921); State ex rel. Board of Directors v. Preston, 120 Wash. 569, 571, 208 P. 47 (1922). In the Preston case, at page 571, 208 P. at page 47, the court characterized the true nature of a teacher's challenge to his dismissal:

A teacher is an employee, and not a public officer. (Citation omitted.) They are employed in this state by contracts for definite periods with the teacher as one party and the board of directors of the school district as the other. . . . Of course, if the contract is terminated wrongfully, the district is liable for the damages suffered . . .

Cf., Kirk v. Miller, 83 Wash.2d 777, 781, 522 P.2d 843 (1974). Although RCW 28A.58.450 speaks in terms of 'probable cause' and 'adverse change in contract status,' the gist of the inquiry made by the board is whether the teacher has so materially breached his promise to teach as to excuse the school district in its promise to employ. Such determinations are judicial in nature making the decisions of the school board amenable to de novo review by the superior court.

The third test mentioned in Floyd also compels the conclusion that the...