Mount Pleasant School Dist. v. Warder

• Decision Date: 21 June 1977
• Parties: MOUNT PLEASANT SCHOOL DISTRICT, Petitioner, v. The Honorable Hiram W. WARDER, Judge of the Family Court of the State of Delaware in and for New Castle County, Respondent. MOUNT PLEASANT SCHOOL DISTRICT, Petitioner, v. Leo F. DODD, a minor by his guardian ad litem Leo E. Dodd, Respondent.
• Court: Delaware Superior Court

Page 478

375 A.2d 478

MOUNT PLEASANT SCHOOL DISTRICT, Petitioner, v. The Honorable Hiram W. WARDER, Judge of the Family Court of

the State of Delaware in and for New Castle

County, Respondent.

MOUNT PLEASANT SCHOOL DISTRICT, Petitioner, v. Leo F. DODD, a minor by his guardian ad litem Leo E. Dodd, Respondent.

Superior Court of Delaware, New Castle County.

Submitted June 6, 1977.

Decided June 21, 1977.

Decision after briefing and argument.

Lawrence A. Hamermesh, of Morris, Nichols, Arsht & Tunnell, Wilmington, for petitioner.

Thomas G. Hughes, of O'Donnell & Hughes, Wilmington, for respondents.

Regina M. Small, Deputy Atty. Gen., Dept. of Justice, Wilmington, amicus curiae.

TAYLOR, Judge.

This involves two actions brought by Mount Pleasant School District to test the validity of an Order entered by Judge Hiram W. Warder, Judge of the Family Court of the State of Delaware. One action seeks a writ of prohibition to prevent the Order from being put into effect by the Judge. The other action seeks to have the Judge's Order set aside under a writ of certiorari.

It was agreed between the parties that no material facts are in dispute and that the actions could be decided upon briefs and argument. Since both actions involve common questions of law, the briefing, argument and decision have been consolidated.

I

Judge Warder's Order which is under attack involved Leo F. Dodd, who was 16 years of age at the time of the Order. At all times pertinent to these proceedings, Leo Dodd has been a resident of the Claymont School District. Leo Dodd's involvement with Family Court commenced October 23, 1975 upon a complaint filed by the Claymont High School charging him with truancy. Thereafter, there followed a succession of charges that the minor was uncontrolled, the last charges being brought on January 3, 1977. It appears that the last charges were withdrawn and the withdrawal was approved by Judge Daniel F. Kelleher on February 17, 1977. The petition for withdrawal attached a letter from Dr. Floyd S. Cornelison, Jr., recommending that a transfer of Leo Dodd from Claymont High School to Mount Pleasant High School be given serious consideration. On March 9, 1977 Judge Warder wrote to Dr. Michalcewiz of the Mount Pleasant High School directing that Leo Dodd be transferred from the Claymont High School to the Mount Pleasant High School. It is this directive ¹ which is challenged in these proceedings.

It appears that Leo Dodd received private psychiatric care during which the conclusion was reached that Leo Dodd's problem related in part at least to the environment at Claymont High School. It appears that the father of Leo Dodd contacted petitioner requesting the transfer and on February 21, 1977 the transfer was refused by petitioner. Apparently, upon learning of the refusal, without further proceeding in the Family Court and without affording petitioner an opportunity to be heard, Judge Warder issued the March 9, 1977 directive.

II

Many of the functions of providing free public education have been vested in local school boards which provide those services within geographical areas of the State known as reorganized school districts. ² The formulation of general policy relating to educational matters rests with the State Board of Education. 14 Del.C. § 101. The local school board has "the authority to administer and to supervise the free public schools of the reorganized school district and . . . to determine policy and adopt rules and regulations for the general administration and supervision of the free public schools of the reorganized school district. 14 Del.C. § 1043.

Generally speaking, the statutory locus for receiving public education is the public school in the school district in which the person resides. 14 Del.C. § 202(c). Transfers of pupils are permitted subject to the limitation that "no pupil shall be transferred from 1 reorganized school district to another reorganized school district without the written approval of the school board (sic) of both the sending and receiving districts." 14 Del.C. § 602(a). ³

The vesting of broad powers in the local school board must carry with it the power to take all steps reasonably necessary to carry into effect those powers. Accordingly, it has been held that the power to contract implies the susceptibility to suit and the power to litigate. Morris v. Board of Education of Laurel School District, D.Del., 401 F.Supp. 188 (1975). Similarly, the power to appoint personnel is accomplished by the implied susceptibility to suit and the power to litigate a hiring dispute. Newman v. Board of Education of the Mount Pleasant School Dist., Del.Supr., 350 A.2d 339 (1975).

The proposition is generally accepted that "the authority of a school district to sue or be sued appears to be unquestioned, even in the absence of an authorizing statute." 68 Am.Jur.2d, Schools, § 16, p. 372; 79 C.J.S. Schools and School Districts § 428(a), p. 315. I conclude that the power of the school district to litigate with respect to matters which are within its statutory authority also includes the power to protect its authority from encroachment.

Respondents contend that this authority does not rest with the local school board because of the power vested in the State Board of Education to adopt rules and regulations "consistent with the laws of this State for the maintenance, administration and supervision throughout the State of a general and efficient system of free public schools . . . ", and in particular the power of the Board to prescribe rules and regulations "governing the admission of pupils from the schools from 1 district to the schools of another district . . . ". 14 Del.C. § 122(a) & (b)(9). It does not appear that the State Board of Education has undertaken to establish standards or otherwise provide for the manner or condition of transfer of a pupil from one school district to another other than to provide for standards for the transfer of records and credits. I do not find that the existence of regulatory power in the State Board of Education has the effect in this instance of depriving the local school board of its authority to make a determination with respect to transfer of a pupil and hence it does not deprive the local school board of its power to protect that authority through litigation.

Similarly, the existence of the general control and supervision over the public schools of the State including the power to decide controversies and disputes involving the administration of the public school system does not prevent the local school board from protecting by litigation the statutory authority vested in it. 14 Del.C. § 121(7).

I conclude that petitioner had the power to institute the petition for writ of prohibition. Since respondents have not addressed themselves to the distinction between the two proceedings, the Court will accord the certiorari proceeding the benefit of the above holding.

Respondents also contend that even if petitioner has standing to bring these proceedings, it can only do so through the Attorney General. This position is strongly opposed by petitioner and by the Attorney General, who has filed a brief as amicus curiae.

Respondents cite 14 Del.C. § 109 to support their position. The section provides:

"If in the execution of this Title it is necessary to institute proceedings at law or in equity for or on behalf of the Board or any reorganized school district, the Attorney General, when so requested by the Board, shall institute and conduct such proceedings."

This is a provision of long standing, having been first adopted in 1923. 33 Del.Laws Ch. 181. Subsequent legislation has specifically required the Department of Justice to provide legal services to State instrumentalities and agencies and has forbidden them to employ other counsel. 29 Del.C. § 2501, § 2504 and § 2507. However, those provisions are made inapplicable:

"to the University of Delaware or to any school district or special school district of this State, and these organizations may each employ their own attorney or attorneys, notwithstanding § 2507 of this title, . . . " 29 Del.C. § 2515.

This language is a clear recognition that, with the exception stated therein, which is not applicable here, school boards may conduct their legal affairs through attorneys other than those of the Department of Justice. ⁴

III

The action of the Family Court in directing the transfer of the minor from the high school in his residential district to a high school in an adjoining district is justified by respondents by the statutory powers of the Court conferred by 10 Del.C. §§ 921 and 925. § 921 grants to the Family Court...