Tucson Public Schools, Dist. No. 1 of Pima County v. Green, 2

• Decision Date: 11 April 1972
• Docket Number: No. 2,CA-CIV,2
• Citation: 495 P.2d 861,17 Ariz.App. 91
• Parties: TUCSON PUBLIC SCHOOLS, DISTRICT NO. 1 OF PIMA COUNTY, Appellant, v. Goldie GREEN, as mother and next of kin of Debra Askew, a minor, Appellee. 1089.
• Court: Arizona Court of Appeals

Page 861

495 P.2d 861

17 Ariz.App. 91

TUCSON PUBLIC SCHOOLS, DISTRICT NO. 1 OF PIMA COUNTY, Appellant, v. Goldie GREEN, as mother and next of kin of Debra Askew, a minor, Appellee.

No. 2 CA-CIV 1089.

Court of Appeals of Arizona, Division 2.

April 11, 1972.

Rehearing Denied June 9, 1972.

Rose Silver, Pima County Atty., by J. William Brammer, Jr., Special Deputy County Atty., Tucson, for appellant.

Pima County Legal Aid Society by Peter D. Eisner and P. Bryce Appleton, Tucson, amicus curiae.

HATHAWAY, Judge.

School District One seeks review of a superior court order in a special action instituted by the appellee wherein she challenged a school board order expelling her daughter from Tucson High School and permanently suspending her from attendance at any school within School District One.

The complaint alleged that the Board of Education of Tucson School District One, after an administrative hearing on March 9, 1971, voted unanimously in favor of expulsion and permanent suspension; that the Board's reasons for expulsion were unauthorized entrance upon the grounds and building at Cholla High School, failure to comply with the lawful direction of a school official, disruption of the educational process, and knowingly violating a school district rule; that Debra had been adjudicated a delinquent child on March 24, 1971; that the Board's action was arbitrary and capricious; and that Debra, one of seven students from Tucson High School who had been permanently expelled, was denied equal protection of the laws for the reasons that no Cholla student involved in the incident at Cholla High School had been expelled. The appellee requested that the superior court set aside the expulsion order or, in the alternative, 'modify the decision of the school board at least to the extent that the minor's punishment be commensurate with the evidence that the board had before it.'

The court issued an order to the appellant to appear and show cause why the relief prayed for should not be granted. A hearing was duly conducted at which both parties presented evidence and on July 2, 1971, judgment was entered decreeing that the school board's order of expulsion be modified to allow Debra to re-enter District One schools at the beginning of the second semester of the 1971--72 school year.

In the recent case of Kelly v. Martin, 16 Ariz.App. 7, 490 P.2d 836 (1971), we had occasion to consider and discuss the role of the judiciary when the actions of school officials are called into question. We pointed out that judicial review is very narrowly circumscribed--the sole inquiry is whether action is fraudulent, arbitrary or capricious. In answering this question, we apply standards set by reason and reasonable people, bearing in mind that such a standard may permit a difference of opinion on the same subject.

No question was raised as to the requisite procedural due process. Nor was any question raised as to the school board's authority to expel Debra. The essence of the attack on the school board's ruling was that permanent expulsion was an abuse of discretion.

At the outset, we feel constrained to comment on the procedural conduct below. Special actions are review proceedings and the only questions that may be raised are:

A. Whether the defendant has failed to exercise discretion which he has a duty to exercise; or to perform a duty required by law as to which he has no discretion; or

B. whether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority; or

C. whether a determination was arbitrary and capricious or an abuse of discretion.

Rule 3, Rules of Procedure of Special Actions, 17 A.R.S. (Supp. 1971--72)

Although the rules governing special actions have eliminated the traditional writs, the scope of the relief traditionally granted under the writs of certiorari, mandamus and prohibition has not been enlarged. Ibid, Rule 1. Therefore, a special action is not a trial de novo and the court's function, just as in certiorari, is to determine whether there is any evidence to sustain the findings of the board. Walker v. Dunham, 78 Ariz. 419, 281 P.2d 125 (1955). The fact that Rule 6 authorizes the court in a special action to 'annul or confirm the determination in whole or in part, or modify it,' does not enlarge the court's authority. 14 C.J.S. Certiorari § 172 (1939). In challenging the determination of the school board, the burden of proving an abuse of its discretion was that of the one claiming such abuse. Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962); School District No. 17 of Sherman County v. Powell, 203 Or. 168, 279 P.2d 492 (1955); 78 C.J.S. Schools and School Districts § 128 (1952). The burden did not rest, as the lower court here appeared to think, with the school board to show that there was sufficient evidence to justify its action. The evidentiary presentation of the board, however, reflects that its action was neither arbitrary nor capricious.

On February 8, 1971, Debra, a Tucson High School student did not go to her classes at Tucson High, but met some friends across the street from the school and they took a bus to...