Hurst v. Bisbee Unified School Dist. No. Two

• Decision Date: 28 December 1979
• Docket Number: CA-CIV,No. 2,2
• Citation: 607 P.2d 391,125 Ariz. 72
• Parties: Alice Patricia HURST, Plaintiff/Appellant, v. BISBEE UNIFIED SCHOOL DISTRICT NO. TWO, Defendant/Appellee. 3234.
• Court: Arizona Court of Appeals

Page 391

607 P.2d 391

125 Ariz. 72

Alice Patricia HURST, Plaintiff/Appellant, v. BISBEE UNIFIED SCHOOL DISTRICT NO. TWO, Defendant/Appellee.

No. 2 CA-CIV 3234.

Court of Appeals of Arizona, Division 2.

Dec. 28, 1979.

John William Lovell, Tucson, for plaintiff/appellant

Beverly H. Jenney, Cochise County Atty. by Robert M. Jarrett, Jr., Bisbee, DeConcini, McDonald, Brammer, Yetwin & Lacy, P. C. by William B. Hanson, Tucson, for defendant/appellee.

OPINION

HOWARD, Judge.

This is an appeal from the trial court's dismissal of an appeal by appellant, a tenured teacher, and dismissal of certain portions of her amended complaint. The issues to be decided are: (1) Did the trial court err in finding that appellant failed to timely appeal and that the time requirement was jurisdictional? (2) Was an appeal her exclusive remedy?

Appellant, Alice Patricia Hurst, was a tenured teacher employed by the Bisbee Unified School District # 2. As a result of an alleged incident in her classroom, appellant was notified that her presence was required at a March 9, 1978 meeting of the board of trustees. Appellant attended the meeting but left after being informed that a representative of the Arizona Education Association would not be allowed to represent and speak to her.

Another meeting was scheduled for March 17. Appellant attended with her attorney. She was told that the purpose of the meeting was to explore and investigate her conduct in the classroom. Her attorney attempted to persuade the board that he had a right to speak for and represent her in all communications with the board. He refused to allow her to speak directly with the board and when it became evident that the board intended to talk directly with her, he advised her to leave the meeting. Her decision to leave came after the board had explained to her and her attorney that such action would be considered insubordination.

On March 20, 1978, the board of trustees approved a motion to dismiss appellant for insubordination and to give her notice of its intention to take such action. On the same date, appellant was given written notice of the board's intention to dismiss her on the grounds of insubordination.

Pursuant to A.R.S. Sec. 15-253 appellant demanded a hearing in front of a dismissal hearing commission. On May 3, the commission convened. The board of trustees sat throughout the entire hearing and several members were called as witnesses to testify about appellant's conduct at the March 9 and 17 meetings.

On June 12, 1978, the commission submitted its findings of fact, determination of issues and recommendation that the dismissal of appellant was unwarranted under all the circumstances and that less severe disciplinary action be considered by the board.

On June 19, 1978, the board met to consider the commission's report. Appellant's attorney was allowed to address the board and present arguments. The board accepted the commission's findings of fact and determination of issues but rejected its recommendation. The board voted that appellant be dismissed. Notice of termination was received by appellant on June 22, 1978.

A notice of appeal from the board's decision was filed in the Cochise County Superior Court on August 14, 1978. A separate complaint was filed by appellant against the appellee on the same day. This complaint was subsequently amended to also allege special action relief.

TIMELINESS OF THE APPEAL

A.R.S. Sec. 15-264 provides:

"The decision of the governing board may, on appeal of a continuing teacher, be reviewed by a court of competent jurisdiction in the same manner as the decision made in accordance with the provisions of 41-785. . . ."

A.R.S. Sec. 41-785(D) provides:

"D. Within thirty days after the recording of the order and the mailing thereof, the employee may appeal to the superior court of the county of residence on one or more of the following grounds, that the order was:

1. Founded on or contained error of law which shall specifically include error of construction or application of any pertinent rules.

2. Unsupported by any evidence as disclosed by the entire record.

3. Materially affected by unlawful procedure.

4. Based on violation of any constitutional provision.

5. Arbitrary or capricious."

Since the board's order was filed and mailed on June 21, 1978, the last day for filing the appeal with the superior court was July 21, 1978. The appeal was filed 24 days late.

Appellant presented below the affidavit of her attorney's secretary which stated that the appeal was placed in the mail on July 6, 1978. Appellant contends the statutes pertaining to appeal are uncertain and that the time prescribed for appeals from administrative decisions is not jurisdictional. Her vagueness argument is based on the language of A.R.S. Sec. 15-264 which states that the decision of the board may be reviewed, ". . . in the same manner as the decision made in accordance with the provisions of § 41-785." (Emphasis added). It is appellant's position that the phrase "in the same manner" does not include time limits. We do not agree. Whether the word "manner" shall be construed as including, not only the way or mode of doing a thing, but also the time for doing it, depends upon the intention of the lawmakers, to be gathered from the context, that is, the "manner" of doing a thing and the "time" of doing it are distinct things and ordinarily the word "manner" will not be construed as including the element of "time", unless it shall appear from the context that the lawmakers intended that it should. Moore v. City Council of Los Angeles, 58 Cal.App. 555, 209 P. 64 (1922); James v. Chapman, 50 Wyo. 210, 58 P.2d 439 (1936). We believe the legislature intended the thirty day limit to apply to appeals by continuing teachers and did not intend to give the teacher an indefinite time within which to appeal.

Appellant contends that the case of Matanuska-Susitna Borough v. Lum, 538 P.2d 994 (Alaska 1975) is on all fours with the case sub judice and supports her position that the time limits in A.R.S. Sec. 41-785 are not jurisdictional. In Matanuska the court said that the legislature had not set forth any time period for an appeal from school board decisions and that Alaska's administrative procedure act by its express terms did not apply to local school boards. Furthermore, there was no court rule in existence at the time which governed the time within which to appeal from administrative rulings. There is dicta in the case that in Alaska failure to file an appeal within statutory time limitations does not create a jurisdictional defect. This is clearly not the law in Arizona where perfecting of an appeal within the time prescribed is jurisdictional. Edwards v. Young, 107 Ariz. 283, 486 P.2d 181 (1971). Matanuska is not on point.

Appellant also relies on the case of Reddell v. Industrial Commission, 111 Ariz. 313, 528 P.2d 1254 (1974) for the proposition that the 30-day requirement is not jurisdictional. We do not believe that Reddell is apposite. There the court was dealing with the filing of an appeal with an administrative body, namely the industrial commission and not with the court, and, the industrial commission already had jurisdiction of the matter. Furthermore, it is clear that because of their nature, industrial commission cases are treated differently than others in the State of Arizon. See, Parsons v. Bekins Freight, 108 Ariz. 130, 493 P.2d 913 (1972); In re Trull, 21 Ariz.App. 511, 520 P.2d 1188 (1974).

Arizona has held that the time limits prescribed for an appeal from an administrative agency are jurisdictional. Arizona Corporation Commission v. Catalina Foothills Estates, 78 Ariz. 245, 278 P.2d 427 (1954). New Mexico, in the cases of Brown v. New Mexico State Board of Education, 83 N.M. 99, 488 P.2d 734 (1971); Board of Education, Penasco Independent School District No. 4 v. Rodriguez, 77 N.M. 309, 422 P.2d 351 (1967) held that the failure to timely perfect an appeal from a school board decision deprived the court of jurisdiction to hear the appeal.

The statutes dealing with teacher tenure create a special procedure for the protection of personal rights which must be strictly followed and the failure to comply therewith forfeits whatever rights the law was intended to protect. Tempe Union High School Dist. v. Hopkins, 76 Ariz. 228, 262 P.2d 387 (1953). The trial court correctly dismissed the appeal.

THE EFFECT OF THE FAILURE TO FILE A TIMELY APPEAL

Appellant's amended complaint and petition for special action alleged the school district abused its discretion in terminating her without cause; denied her due process of law because it was not impartial; and wrongfully refused to renew her contract which was automatically renewed for the school year 1978-79. In her prayer for relief she asked for a writ in the nature of mandamus ordering the school district to allow her to teach for the year 1978-79 and to pay her the appropriate salary. She also asked for compensatory damages for deprivation of her constitutional rights together with punitive damages. ¹

The trial court found that appellant's contract was not automatically renewed; that she was properly terminated on June 21, 1978 and that she was entitled to her pay through June 21. All other claims were dismissed. ²

As for the requested relief in the nature of mandamus, mandamus does not...