Gomez v. Board of Ed. of Dulce Independent School Dist. No. 21

• Citation: 516 P.2d 679,1973 NMSC 116,85 N.M. 708
• Decision Date: 30 November 1973
• Docket Number: No. 9763,9763
• Parties: Gene GOMEZ, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the DULCE INDEPENDENT SCHOOL DISTRICT NO. 21 et al., and Joe Baca, Sr., George Ballard, Emmett Lynch, Grace Pettus, Edwin Sandoval, its members; Garfield J. Gutierrez, its Superintendent; and William Lemon, Director of the School Transportation Division of the State Department of Education, State of New Mexico, Defendants-Appellees.
• Court: Supreme Court of New Mexico

Page 679

516 P.2d 679

85 N.M. 708

Gene GOMEZ, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the DULCE INDEPENDENT SCHOOL DISTRICT NO. 21 et al., and Joe Baca, Sr., George Ballard, Emmett Lynch, Grace Pettus, Edwin Sandoval, its members; Garfield J. Gutierrez, its Superintendent; and William Lemon Director of the School Transportation Division of the State Department of Education, State of New Mexico, Defendants-Appellees.

No. 9763.

Supreme Court of New Mexico.

Nov. 30, 1973.

Bigbee, Byrd, Carpenter & Crout, Jay C. Carlisle, II, Paul D. Gerber, Santa Fe, for plaintiff-appellant

Thomas O. Olson, Albuquerque, for Lynch and Sandoval.

Charles S. Solomon, Santa Fe, for Bd. of Education, Superintendent Gutierrez, and Baca, Ballard and Pettus.

David L. Norvell, Atty. Gen., C. Emery Cuddy, Jr., Asst. Atty. Gen., Santa Fe, for Lemon, Director of School Trans. Div.

OPINION

MONTOYA, Justice.

This is an appeal by plaintiff (appellant) from a judgment of dismissal rendered in favor of defendants in an action brought by plaintiff seeking damages from defendants as a result of their decision to cancel or, in the alternative, not renew the plaintiff's bus service contract with the Dulce Independent School District. For convenience, the parties will be referred to as they appeared below.

The facts alleged in plaintiff's complaint, deemed admitted by the motion to dismiss, are as follows: Plaintiff entered into a four-year contract with defendant Board of Education, Dulce Independent School District No. 1, to furnish bus transportation for school children for the period 1965 to June 1970. This contract was renewed in August 1970, for a period of one year ending June 1971. Plaintiff performed his duties under the contract in a competent and satisfactory manner and alleges he had a reasonable expectancy that the contract would be renewed for the 1971--1972 school year, and then for an additional period of four years, and that such oral representations had been made to him by the defendant board and the defendant superintendent. The board of education, the individual members thereof, its superintendent, and the state director of school transportation William Lemon, are all named defendants. Plaintiff alleges oral representations were made by defendants that, if his services were satisfactory, a similar bid could be submitted at the expiration of the latter four-year period and that it would be accepted. In October 1970, plaintiff and other individuals filed an election contest in Cause No. 11220, Rio Arriba County District Court. While said legal proceedings were pending, the named defendants, at a special meeting held on June 28, 1971, determined to cancel plaintiff's contract or, in the alternative, not to renew his contract for the year 1971--1972. By letter, plaintiff was advised his bus contract was not renewed and that the board's decision was based on plaintiff's legal action against the defendant board which, in the latter's belief, constituted cause for such action. The letter was signed in behalf of the board by its superintendent, also a named defendant, with a carbon copy of said letter to be forwarded to defendant Lemon, the state transportation director. It was further alleged by plaintiff, on information and belief, that defendant Lemon approved, condoned and otherwise supported the board's action. Plaintiff claims such action not to renew the contract was unreasonable, arbitrary and capricious, and that such action constituted a deprivation of plaintiff's right to freedom of speech and association and substantive due process under the United States and State Constitutions. Plaintiff further alleges that his cause of action arises under 42 U.S.C. § 1983 (1871), and under the Federal and State Constitutions. Plaintiff then alleges that, by reason of the foregoing, he suffered certain damages.

Thereafter, defendants board, board members and its superintendent, filed motions to dismiss on grounds that the complaint failed to state a cause of action upon which relief could be granted because the suit could not be maintained against a public body, or its officers acting in an official capacity. Defendant Lemon filed a similar motion, alleging said lawsuit could not be brought against a state official for actions performed in an official capacity, and that plaintiff failed to allege the performance by defendant Lemon of any action abridging the civil rights of plaintiff. Upon hearing oral argument on the motions to dismiss, the trial court dismissed the action with prejudice and this appeal followed.

Plaintiff contends (1) that the trial court erred in dismissing his complaint for failure to state a claim upon which relief can be granted; and (2) that error was committed by the trial court in holding that this particular action cannot be brought against a public body, or against its officers acting in their official capacity, or against a state official for actions performed in his official capacity.

In discussing the issues involved, it would be appropriate to quote the statute under which the cause of action is based, 42 U.S.C. § 1983 at 201 (1871), which reads as follows:

'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'

The trial court having granted a motion to dismiss for failure to state a claim upon which relief can be granted, the applicable rule to be followed is to accept as true all facts well pleaded and question only whether the plaintiff might prevail under any state of facts provable under the claim. Jones v. International Union of Operating Engineers, 72 N.M. 322, 383 P.2d 571 (1963). In examining the above statute under which this action is brought, it is apparent that the statutory prerequisites for liability under § 1983, supra, are that the defendants must have acted under color of law, regulation, custom or usage of the State of New Mexico, and that the plaintiff must have been deprived of federal constitutional rights, privileges and immunities. We believe that the first statutory requirement or prerequisite to stating a claim has been met in this case, since the defendants are state officials, local officials and employees, who acted under the authority of statutes, regulations, custom or usage of the State of New Mexico, and the complaint so alleges in those very terms.

The next question in testing the sufficiency of the complaint is whether the second prerequisite under § 1983, supra, has been met. In other words, has there been a deprivation of a federal constitutional right? This poses a more difficult problem.

Though this is a question of first impression, which has not heretofore been considered by this court, we are fortunate in having many decisions by our federal courts which have faced the same issue confronting us. The complaint concedes that no actual contract is involved, rather it is based on the premise that there was a 'reasonable expectancy' that the bus contract in question would remain in effect or be renewed, except for the suit filed by the plaintiff against the school board.

In considering a similar issue, the statements made by the United States Court of Appeals, Fifth Circuit, in Pred v. Board of Public Instruction of Dade County, Fla., 415 F.2d 851 (5th Cir. 1969), are particularly applicable. In that case, plaintiffs-teachers filed a complaint charging public school authorities with purposely declining to renew their teaching contracts and grant tenure, because of the plaintiffs' exercise of First Amendment rights of speech and association. The federal district court dismissed the complaint and, on appeal, the circuit court reversed, holding that the allegations that plaintiffs-teachers were denied fourth year contracts which would insure tenure, because of participation by each in teachers' association to protect interests of teachers, stated a cause of action denying them their First Amendment rights. The Fifth Circuit Court, in deciding the case, said (415 F.2d at 856):

'* * *. In effect the school authorities assert that the teachers were not deprived of their rights, for neither was prevented from speaking, writing, and believing as he chose. If they wished to propagandize, simply do it elsewhere, not as public school teachers. But as Judge Learned Hand said years ago in Bomar v. Keyes, 2 Cir., 1947, 162 F.2d 136, 139. 'It would emasculate the (Civil Rights) act * * * to leave without recourse those who were later made the victims of reprisals of which they had not been warned.' More than that it would sap the Constitution of its vital force in relation to public employees. It would, in the area of First Amendment rights, be to throw out this Hobson's choice: speak or work. Moreover, the execution of any such policy through discharge or non-reemployment would have both a specific and a general impact. It would, as to the individual concerned, be to cut him off from work and income. But to others the consequence might well be more serious. It would be the warning that others would suffer the same fate so that eventually there would be workers, but not speaking or feeling free to speak, they would be silent workers. And in the teaching community we must recall that "(t)he threat of sanctions may deter * * * almost as potently as the actual application of sanctions.' N.A.A.C.P. v. Button (1963, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418) * * * The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being prescribed.' Keyishian v ...