Jacob v. Burke

• Citation: 296 A.2d 456,110 R.I. 661
• Decision Date: 06 November 1972
• Docket Number: No. 1585-A,1585-A
• Parties: Claire JACOB v. Fred BURKE et al. ppeal.
• Court: Rhode Island Supreme Court

Page 456

296 A.2d 456

110 R.I. 661

Claire JACOB v. Fred BURKE et al.

No. 1585-Appeal.

Supreme Court of Rhode Island.

Nov. 6, 1972.

Urso & Adamo, Natale L. Urso, John J. Adamo, Westerly, for plaintiff

Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, Providence, for School Committee.

OPINION

POWERS, Justice.

These are cross-appeals from a Superior Court judgment, entered in consequence of litigation, the nature and travel of which are such as to necessitate a somewhat detailed recital.

The plaintiff, certified to teach in the public schools of this state, commenced her teaching career in North Kingstown, Rhode Island, where she taught for six consecutive years. Thereafter, she transferred to Hopkinton where she taught for three years until 1969 when she entered the South Kingstown school system. She was still teaching in the latter community on February 25, 1971, when she was given written notice by the South Kingstown school board that her contract would not be renewed.

However, notwithstanding more than ten years of continuous service as a teacher, plaintiffs status with the South Kingstown school board was that of a nontenured teacher. ¹

Consequently, the South Kingstown school board, in its notice of nonrenewal gave no reason for its action.

However, by the enactment of P.L.1970, ch. 222, sec. 1, now cited as G.L.1956 (1969 Reenactment) § 16-13-12, as amended, the General Assembly gave to nontenured teachers who were notified that their contract would not be renewed, the same right to demand a statement of cause for dismissal or nonrenewal of his contract by the school board, that it had long since provided for teachers with tenure. Moreover, § 16-13-2, as amended, also provided, as it previously had for tenured teachers, a right to a hearing on said charges and, if aggrieved thereby, a right of appeal pursuant to the procedure set forth in § 16-13-4.

Invoking the protection thus afforded by § 16-13-2, as amended, plaintiff requested of and received from the South Kingstown board, a statement of the charges on the basis of which the board had voted not to renew her contract. She also had the required hearing by the board which, thereafter, voted not to change its original decision.

Consequently, as provided by § 16-13-2, as amended, plaintiff appealed to the State Department of Education as authorized by § 16-13-4.

However, at this juncture it becomes necessary to point out that the 'state department of education' referred to in § 16-13-4 no longer existed when plaintiff claimed her appeal on May 24, 1971. This is so because by the enactment of P.L.1969, ch. 231, now G.L.1956 (1969 Reenactment) § 16-49-1, as amended, the General Assembly created a new table of organization with regard to education. Specifically, § 16-49-1, as amended, establishes a 'board of regents for education' and vests such board with all the powers, rights, duties and privileges theretofore possessed by, inter alia, the State Department of Education.

Moreover, chapter 49 of title 16 was originally enacted as P.L.1969, ch. 231. Said ch. 231, sec. 11, expressly empowered the board of regents, once having organized, to adopt an order abolishing the them existent State Department of Education. The section further provides that such order, when adopted, would be filed with the Secretary of State and effective with such filing, the State Department of Education would stand abolished.

The record establishes that an order abolishing the State Department of Education was in fact adopted by the board of regents and filed with the Secretary of State on June 29, 1970, to be effective as of July 1 of that year.

As heretofore related, plaintiff claimed her appeal from the decision of the South Kingstown school board on May 24, 1971, almost 11 months after the State Department of Education referred to in § 16-13-4 had been abolished.

However, for reasons hereinafter stated, the abolishment of the State Department of Education referred to in § 16-13-14, did not work a denial of plaintiff's right of appeal. The 1969 reorganization act, specifically § 16-49-7, authorizes the board of regents to appoint a commissioner of education who, said section provides, shall have the power to hear appeals from decisions of local school boards. Consequently plaintiff's appeal from the decision of the South Kingstown school board was received and acted upon by the commissioner of education, appointed by the board of regents. The commissioner, however, after a hearing on said appeal, affirmed the decision of the local school board.

From the decision of the commissioner, plaintiff appealed to the Superior Court as provided by § 16-13-4. She did so by filing in the Superior Court a complaint which sought, in addition to a review of the commissioner's decision, an ex parte restraining order against the commissioner and the local school board to the end that plaintiff be permitted to continue teaching until the matter had been finally litigated.

This complaint was filed in the Superior Court on September 1, 1971, and on that day, a Superior Court justice granted an ex parte restraining order as prayed by plaintiff. Pursuant to Super.R.Civ.P. 65, a hearing was set for September 9, 1971, on plaintiff's prayer for preliminary and permanent injunctive relief. On this latter date, defendants orally moved to dismiss plaintiff's complaint on the ground that she had failed to eahaust her administrative remedies. ²

The record indicates that on September 9, 1971, a Superior Court justice did conduct a hearing on plaintiff's prayer for injunctive relief and on defendants' motion to dismiss. We say 'indicates' because it would appear that no transcript of that hearing was compiled. Be that as it may, all parties, in their oral arguments and briefs, refer to the September 9 hearing and, in such circumstance, we assume it to be a fact that a hearing was held.

At the conclusion of said hearing, the Superior Court justice reserved decision. Subsequently, specifically on October 18, 1971, a judgment was entered granting defendants' motion to dismiss but also granting plaintiff's prayer for preliminary injunction. From this judgment plaintiff and defendants appealed.

The plaintiff's appeal is predicated on her contention that the trial justice erred in granting defendants' motion. The defendants' appeal is predicated on the proposition that having dismissed plaintiff's complaint the trial justice lacked jurisdiction to grant injunctive relief.

I

The Plaintiff's Appeal

This court has long adhered to the doctrine that when the General Assembly provides a right of judicial review from the decision of an administrative agency, it is incumbent upon the party aggrieved to exhaust all remedies within such agency before judicial review may be invoked. Hartunian v. Matteson, 109 R.I. 509, 288 A.2d 485 (1973); Warren Education Ass'n v. Lapan, 103 R.I. 163, 235 A.2d 866 (1967); Conley v. McCarthy, 84 R.I. 141, 121 A.2d 875 (1956); New England Tel. & Tel. Co. v. Kennelly, 75 R.I. 422, 67 A.2d 705 (1949).

Consequently, whether there is merit to plaintiff's appeal turns on the question of whether she has filed to exhaust her administrative remedies. We conclude that her recourse to the Superior Court from the decision of the commissioner was premature. But the reasoning behind with conclusion is somewhat at variance with that of the Superior Court justice. Because it will prove helpful to the courts, as well as to litigants, in possible future litigation, we think it advisable to set forth in some deatail the legislative history governing the instant plaintiff's status.

As heretofore recited, plaintiff claimed her appeal from the decision of the South Kingstown school board on the authority of § 16-13-4. In his consideration of her appeal, however, the commissioner treated it as one taken pursuant to chapter 39 of title 16, sections 2, 3 and 4, the excat provisions of which are appended to this opinion for ready reference.

It suffices at this juncture to note that § 16-39-2 provides for an appeal by any person aggrieved by a decision of a local school board to the commissioner of education.

Section 16-39-3 provides for further appeal to the board of education.

Section 16-39-4 in turn provides for judicial review in the Superior Court of the state board's decision, but expressly provides that such judicial review shall be had in accordance with chapter 35 of title 42, the short title of which is the Administrative Procedures Act.

In arguing their motion to dismiss, defendants contended that plaintiff's appeal from the decision of the commissioner should have been taken to the Board of Regents for Eduaction, successor to the State Department of Education under the 1969 reorganization act. The Superior Court justice found such contention to be persuasive and based his decision thereon.

The plaintiff, on the other hand, correctly points out that said 1969 reorganization act, specifically § 16-49-15, expressly exempts decisions of the board of regents from judicial review under the provisions of the Administrative Procedures Act.

She further points out that she claimed her appeal to the commissioner under § 16-13-14 and, we agree, her appeal was properly based on the last cited section rather than chapter 39 of title 6, sections 2, 3 and 4.

The right of appeal by any person aggrieved now provided in § 16-39-2 first appeared in an enactment by the General Assembly in 1851. Public Laws 1851 at 823: 'An Act to revise and amend the laws regulating Public Schools.' See sec. 65.

It gave to all persons aggrieved by a decision of a school board the right of appeal to the commissioner together with a right of review of the commissioner's decision, on the latter's initiation or upon the request of either party to a single justice of the Supreme Court. This act remained virtually unchanged until 1946 when the Legislature carved out a special route of appeal for teachers...