Okeson v. Tolley School Dist. No. 25, Civ. No. A4-82-18.

• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
• Citation: 570 F. Supp. 408
• Docket Number: Civ. No. A4-82-18.
• Parties: Clarence E. OKESON, Plaintiff, v. TOLLEY SCHOOL DISTRICT NO. 25, County of Renville, State of North Dakota, a public corporation; and Terry Spear, Ernest Mau, Wayne Hellebust, Carol Resch, and Gerald Egeberg, individually and as members of the Tolley Public School District No. 25, Defendants.
• Decision Date: 11 August 1983

570 F. Supp. 408

Clarence E. OKESON, Plaintiff,
v.
TOLLEY SCHOOL DISTRICT NO. 25, County of Renville, State of North Dakota, a public corporation; and Terry Spear, Ernest Mau, Wayne Hellebust, Carol Resch, and Gerald Egeberg, individually and as members of the Tolley Public School District No. 25, Defendants.

Civ. No. A4-82-18.

United States District Court, D. North Dakota, Northwestern Division.

August 11, 1983.

570 F. Supp. 409

Richard H. McGee, II, Minot, N.D., for plaintiff.

James S. Hill, Bismarck, N.D., for defendants.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

This action concerns the dismissal of Clarence E. Okeson by the School Board of Tolley Public School District No. 25. On May 22, 1981, Okeson entered into a one-year contract with the School District to serve as Superintendent. Approximately six months later, Okeson was dismissed by the Board. He now brings suit against the Board under 28 U.S.C. §§ 1331 and 1343, and 42 U.S.C. §§ 1983 and 1988, claiming denial of due process and breach of contract. Plaintiff seeks damages for breach of contract, interest, punitive damages, reasonable attorney fees, costs and disbursements. Defendant has moved for summary judgment, contending that Plaintiff has not

570 F. Supp. 410

asserted a property right cognizable under the Constitution and its due process provisions, that Plaintiff was in fact given a hearing (even though he was not entitled to one) comporting to constitutional requirements, and that there is no basis for punitive damages in this action

Defendants, relying on Buhr v. Buffalo School District No. 39, 364 F.Supp. 1225, 1227-28 (D.N.D.1973), aff'd, 509 F.2d 1196 (8th Cir.1974), contend that Plaintiff has no property interest in the continuation of his position as superintendent. The United States Supreme Court has consistently held that there is no inherent property interest in renewal of annual contracts. E.g., Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). See also Buhr v. Buffalo School District No. 39, 364 F.Supp. 1225 (D.N.D.1973), aff'd, 509 F.2d 1196, 1227-28 (8th Cir.1974); but see note 1, infra. On the other hand, the Court has emphasized that "the hallmark of property ... is an individual entitlement ground in state law, which cannot be removed except `for cause.'" Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) (citing various decisions). Under present North Dakota law, teachers are afforded protection against arbitrary non-renewal. See N.D.C.C. § 15-47-38(5) (1981). Superintendents, however, are not afforded protection through § 15-47-38, even if they teach a class in addition to their duties as superintendents. Storbeck v. Oriska School District No. 13, 277 N.W.2d 130, 132, 133 (N.D.1979).

Defendants surmise that Buhr controls the issue and that the Court's inquiry should stop here. I cannot agree. The decision in Buhr merely involved a teacher's nonrenewal of a completed contract.¹ A school board's decision not to renew an annual contract is unilateral by its nature and therefore does not create "a legitimate claim of entitlement to it." Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). This case, on the other hand, involves the breach of an uncompleted contract. Moreover, the termination of an existing contractual relationship is plainly considered a property interest and is recognized for due process purposes. Roth, 408 U.S. 576-77, 92 S.Ct. 2708-09 (1972); Brown v. Bathke, 566 F.2d 588, 591-92 (8th Cir.1977); Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 777 (9th Cir.1982); Kendall v. Board of Education, 627 F.2d 1, 4 (6th Cir.1980). Accord Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976), noting, Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Lynch v. United States, 292 U.S. 571, 579, 54 S.Ct. 840, 843, 78 L.Ed. 1434 (1934); Ballstaedt v. Amoco Oil Co., 509 F.Supp. 1095, 1097 (N.D.Iowa 1981). Therefore, Defendants' reliance on Buhr, which deals with the nonrenewal of a completed contract, is misplaced. Since Plaintiff's termination occurred during the contractual period, there can be no doubt that the contract constitutes an understanding that secures certain benefits and that supports claims of entitlement to those benefits. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Accord Orloff v. Cleland, 708 F.2d 372, 377 (9th Cir.1983); Lyznicki v. Board of Education, 707 F.2d 949, 951 (7th Cir.1983).

II.

Defendants argue that "state law does not provide a right to a hearing" and that "Okeson was in fact given a hearing." Under North Dakota law, teachers, but not superintendents, are entitled to notice and hearing before discharge for cause prior to the expiration of the term of their contracts. N.D.C.C. § 15-47-38(2) (1981);

570 F. Supp. 411

Storbeck v. Oriska School District No. 13, 277 N.W.2d 130 (N.D.1979). Nonetheless, once a recognized property interest is subject to divestment, due process requires at least notice and an opportunity to be heard. See Brown v. Bathke, 566 F.2d 588, 592 (8th Cir.1977), citing, Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975), Sullivan v. Meade Independent School District No. 101, 530 F.2d 799, 806 (8th Cir.1975). Moreover, "the opportunity to be heard must be provided `at a meaningful time and in a meaningful manner.'" Brown v. Bathke, 566 F.2d 588, 592 (8th Cir.1977), quoting, Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). Whether the school board meeting of November 9, 1981, comported with the requirements of due process is a question of fact and a point of dispute between the parties

III.

Although North...