State ex rel. Ball v. McPhee

• Decision Date: 03 February 1959
• Parties: STATE ex rel. George G. BALL, Respondent, v. Eugene McPHEE, Dir. and Sec'y, for the Board of Regents of State Colleges, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 711

94 N.W.2d 711

6 Wis.2d 190

STATE ex rel. George G. BALL, Respondent, v. Eugene McPHEE, Dir. and Sec'y, for the Board of Regents of State Colleges, et al., Appellants.

Supreme Court of Wisconsin.

Feb. 3, 1959.

Dissenting Opinion Feb. 6, 1959.

Stewart G. Honeck, Atty. Gen., Warren H. Resh, Asst. Atty. Gen., for appellant.

Aberg, Bell, Blake & Metzner, Madison, Crawford, Crawford & Cirilli, Superior, for respondent.

Padway, Goldberg & Previant David Leo Uelmen, Milwaukee, Henry E. Butler, Jr., Washington, D. C., amicus curiae.

CURRIE, Justice.

We are called upon in this case to consider important questions arising under the teachers' tenure law, sec. 37.31(1), Stats., applicable to faculties of the state colleges. This statute reads as follows:

'All teachers in any state college shall be employed on probation and after successful probation for 4 years, the employment shall be permanent, during efficiency and good behavior, provided, that the teachers having taught 4 years or more in any such college shall be deemed to have served their term of probation. No teacher who has become permanently employed as herein provided, by reason of 4 or more years of continuous service, shall be discharged except for cause upon written charges, said charges shall after 10 days' written notice thereof to such teacher, and upon such teacher's written request, be investigated, heard and determined by the board of regents of state colleges, whose action and decision in the matter shall be final. The term 'teachers' as used in this section shall include all persons engaged in teaching as their principal occupation but shall not include the president or acting president of any state college.' (Italics supplied.)

While additional questions are raised in the briefs of counsel, we deem that the following three issues are all that need be considered in order to properly dispose of this appeal:

(1) What is the scope of the court review in certiorari of the board's action in sustaining the discharge of a teacher having tenure under sec. 37.31(1), Stats.?

(2) Was the action of the board fatally defective because of the failure to make proper findings of fact?

(3) Was Dr. Ball denied a fair hearing so as to require that an entirely new hearing be conducted by the board as a condition precedent to a valid discharge?

Scope of Review on Certiorari

The brief of the attorney general contends that when review is sought by certiorari of a decision of an administrative agency, such as the defendant board in the instant case, the sole question is whether the agency acted within its jurisdiction. We are satisfied that this is too narrow an interpretation of the scope of such review. This is borne out by the declaration of this court in State ex rel. Progreso Development Co. v. Wisconsin Real Estate Brokers Board, 1930, 202 Wis. 155, 168, 231 N.W. 628, 633, that a reviewing court in certiorari will inquire 'to ascertain, not only whether the subordinate officer or board kept within its jurisdiction, but also to see whether or not he or it acted according to law.'

Construing the phrase 'acted according to law,' we deem the word 'law' means not only any applicable statutes but also the common law concepts of due process and fair play and avoidance of arbitrary action. As Mr. Justice Fritz well stated in State ex rel. Madison Airport Co. v. Wrabetz, 1939, 231 Wis. 147, 153, 285 N.W. 504, 507, 'the cardinal and ultimate test of the presence or absence of due process of law in any administrative proceeding is the presence or absence of the 'rudiments of fair play long known to our law.''

The Minnesota court in Oliver Iron Mining Co. v. Commissioner of Taxation, 1956, 247 Minn. 6, 10, 76 N.W.2d 107, 111, recently stated in a certiorari case that 'it is well settled that * * * this court will go no further than to determine: (1) Whether the board kept within its jurisdiction; (2) whether it proceeded on correct theory of the law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.'

In School City of Elwood v. State ex rel. Griffin, 1932, 203 Ind. 626, 180 N.E. 471, 473, 81 A.L.R. 1027, the Indiana court had before it a teachers' tenure statute similar to sec. 37.31(1), Wis.Stats., which provided that the school board's action in discharging a teacher 'shall be final.' Acts Ind. 1927, c. 97. In a mandamus proceeding brought in behalf of a lady teacher who had been discharged because she had married, the court ordered reinstatement on the ground that such fact of marriage was not a statutory ground for discharge. In discussing the scope of review the court stated:

'If a school board dismisses a teacher for a cause named in the statute, such action is conclusive and is not subject to review by the courts, unless the board in taking the action acted in bad faith, arbitrarily, corruptly, fraudulently, or in gross abuse of its discretion.' (Emphasis supplied.)

This same court later decided School City of Peru v. State ex rel. Youngblood, 1937, 212 Ind. 255, 7 N.E.2d 176, 1002, 9 N.E.2d 80, arising under the same tenure statute, in which a discharged teacher sought reinstatement by mandamus, and the trial court's judgment of reinstatement was reversed. The court found that the school board had complied with all the requirements of the teachers' tenure statute in making the discharge, and concluded with this statement (7 N.E.2d at page 181):

'Under the circumstances here presented, the jurisdiction of the trial court was limited to a consideration of whether or not there was substantial evidence before the board to support the charges against the appellee.' (Emphasis supplied.)

We deem that the foregoing quotations from the cited court decisions, which bear on the scope of court review in certiorari or mandamus of a decision of an administrative agency, merit our approval and are applicable to the instant appeal.

Findings of Fact

Sec. 227.13, Stats., which is part of the Wisconsin Administrative Procedure Act, provides:

'Every decision of an agency in a contested case shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each contested issue of fact without recital of evidence.'

There can be no question but that the mere adoption by the defendant board of a resolution that the charges against Dr. Ball 'are sustained' does not comply with the requirements of this statute. The more difficult question is whether such statute is applicable to board action taken pursuant to sec. 37.31(1), Stats., in discharing a teacher.

Ch. 227 is not limited to providing a method of review of administrative agency decisions, but prescribes the procedure which such agencies must follow in hearing and determining contested matters. The definition of 'agency' contained in sec. 227.01, Stats., makes it clear beyond dispute that the defendant board is an administrative agency within the meaning of the Administrative Procedure Act. There is no express provision to be found in the act which excludes the application of sec. 227.13, Stats., to the instant contested proceeding. Neither is there any inconsistency between the provision of sec. 37.31(1), Stats., that the 'said charges shall * * * be * * * heard and determined,' and the requirement of sec. 227.13, Stats., with respect to findings of fact and conclusions of law. Sec. 227.15, Stats., which deals with judicial review of agency decisions, does exclude from such review the decisions of certain named agencies but not those of the defendant board. However, the legislature can by a specific statute not embodied in ch. 227, Stats., exclude other agency decisions from review under the Administrative Procedure Act. We are inclined to agree with the attorney general that the provision in sec. 37.31(1), Stats., that the decision of the defendant board shall be final, does remove its decisions from judicial review under sec. 227.15, Stats.

Therefore the question, as to whether the findings of fact requirement of sec. 227.13, Stats., are applicable to the instant contested proceeding before the defendant board, boils down to the issue of whether such requirements can be deemed to serve any useful purpose in orderly administrative agency procedures, other than for purposes of judicial review. If they do, we have no right to assume that the legislature did not intend them to apply to all administrative agency decisions made in contested proceedings in the absence of an express statute so stating.

The late Judge Jerome Frank forcibly pointed out the important purpose served in the proper administration of justice, from the standpoint of the trier of facts, of the requirement that findings of facts be filed. United States v. Forness, 2 Cir., 1942, 125 F.2d 928, 942, certiorari denied City of Salamanca v. United States, 316 U.S. 694, 62 S.Ct.1293, 86 L.Ed. 1764. We quote Judge Frank's words as follows (125 F.2d at page 942):

'It is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose--that of evoking care on the part of the trial judge in ascertaining the facts. For, as every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of that duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper. The trial court is the most important agency of the judicial branch of the government.' (Emphasis supplied.)

One of the country's leading authorities in the field of administrative law is Prof. Kenneth Culp Davis of the University...