Unified School Dist. No. 380, Marshall County v. McMillen, No. 68220

CourtUnited States State Supreme Court of Kansas
Writing for the CourtHOLMES
Citation252 Kan. 451,845 P.2d 676
Decision Date22 January 1993
Docket NumberNo. 68220
Parties, 80 Ed. Law Rep. 1034 UNIFIED SCHOOL DISTRICT NO. 380, MARSHALL COUNTY, Kansas, Appellee, v. Dwight E. McMILLEN, Appellant.

Page 676

845 P.2d 676
252 Kan. 451, 80 Ed. Law Rep. 1034
UNIFIED SCHOOL DISTRICT NO. 380, MARSHALL COUNTY, Kansas, Appellee,
v.
Dwight E. McMILLEN, Appellant.
No. 68220.
Supreme Court of Kansas.
Jan. 22, 1993.

Page 677

Syllabus by the Court

1. In an action pursuant to K.S.A. 72-5436 et seq. contesting the attempt of a local school board to nonrenew the contract of a tenured teacher, in which the hearing committee renders an opinion favorable to the teacher and adverse to the position of the school board, the school board under the facts of this case is an aggrieved party within the purview of K.S.A.1991 Supp. 60-2101(d) and has the right to appeal such a decision to the district court as provided by K.S.A.1991 Supp. 72-5443(b).

2. Some general principles and rules applicable to the determination of whether a statute is unconstitutional are stated and applied.

3. As used in § 2(a) of Article 6 of the Kansas Constitution and Chapter 72 of the Kansas statutes, the term "general supervision" means the power to inspect, to superintend, to evaluate, and to oversee for direction; it means something more than to advise and confer with, but something less than to control.

4. If a legislative enactment is constitutional, it is not for an appellate court to set policy or to substitute its opinion for that of the legislature no matter how strongly individual members of the court may personally feel on the issue.

5. The judiciary interprets, explains, and applies the law to controversies concerning rights, wrongs, duties, and obligations arising under the law and has had imposed upon it the obligations of interpreting the Constitution and of safeguarding the basic rights reserved thereby to the people. In this sphere of responsibility, courts have no power to overturn a law enacted by the legislature within constitutional limitations, even though the law may be unwise, impolitic or unjust. The remedy in such a case lies with the people through the political process.

6. K.S.A.1991 Supp. 72-5443 does not violate the provisions of either § 2 or § 5 of Article 6 of the Kansas Constitution.

[252 Kan. 452] David M. Schauner of Kansas National-Educ. Assn., argued the cause, and Jonathan M. Paretsky of the same Assn., Topeka, was on the brief for appellant.

Page 678

Fred W. Rausch, Jr., Topeka, argued the cause and was on the brief for appellee.

Cynthia Lutz Kelly, Topeka, was on the brief for amicus curiae Kansas Assn. of School Boards.

HOLMES, Chief Justice:

Dwight E. McMillen, a tenured teacher of U.S.D. No. 380 in Marshall County, appeals from a decision of the district court which, in effect, upheld the school board's decision not to renew McMillen's teaching contract for the 1991-92 school year. In its decision, the trial court held that K.S.A.1991 Supp. 72-5443 violates §§ 2 and 5 of Article 6 of the Kansas Constitution.

The facts are not in dispute. Dwight E. McMillen was a certified, tenured, public schoolteacher employed by U.S.D. No. 380. On April 1, 1991, the school board of the district adopted a resolution stating its intent to nonrenew McMillen's contract. On April 10, 1991, the board notified McMillen in writing of its intent not to renew his contract for the 1991-92 academic year. McMillen timely requested a due process hearing pursuant to K.S.A. 72-5436 et seq. The hearing was conducted in August 1991, and on October 30, 1991, the hearing committee issued its written opinion in which it found, in a two-to-one decision, that the school board failed to show good cause to nonrenew McMillen's employment contract. The hearing committee concluded that the resolution of intent to nonrenew the contract should be rescinded and that McMillen should be reinstated to his teaching position with back pay. On November 4, 1991, the school board adopted the opinion of the hearing committee as its decision, as required by K.S.A.1991 Supp. 72-5443.

On November 20, 1991, U.S.D. No. 380 filed a notice of appeal and petition in district court, pursuant to K.S.A.1991 Supp. 60-2101(d) and K.S.A.1991 Supp. 72-5443. The school district alleged that it did not agree with the majority opinion of the hearing committee, but was forced by the statute to adopt the opinion as its decision. The school district later amended its appeal to [252 Kan. 453] include an allegation that K.S.A.1991 Supp. 72-5443 is an unconstitutional violation of §§ 2 and 5 of Article 6 of the Kansas Constitution. The school district, in its amended appeal, requested that the court find K.S.A.1991 Supp. 72-5443 unconstitutional.

On December 10, 1991, McMillen filed a motion to dismiss the appeal, asserting the district court lacked jurisdiction to hear the appeal. The district court denied the motion to dismiss at a hearing on January 14, 1992.

Following the filing of briefs, the trial court held a hearing on the issue of the constitutionality of K.S.A.1991 Supp. 72-5443 and issued its opinion on April 7, 1992. The district court first addressed whether the authority granted to the due process hearing committee was in violation of the provisions of § 1 of Article 2 of the Kansas Constitution. The court reasoned that the function performed by the due process hearing committee was quasi-judicial in nature and not legislative and consequently was not an unlawful delegation of legislative authority. The court held that K.S.A.1991 Supp. 72-5443 does not violate § 1 of Article 2 of the Kansas Constitution. There has been no cross-appeal from that determination, and whether the statute constitutes an unconstitutional delegation of legislative authority in violation of § 1 of Article 2 is not an issue presently before this court and will not be addressed in this appeal.

The district court next considered whether K.S.A.1991 Supp. 72-5443 violated §§ 2 and 5 of Article 6 of the Kansas Constitution. The court determined that the statute removes from the local school board the authority to make the final decision whether a teacher's contract should be renewed and does violate §§ 2 and 5 of Article 6 of the Kansas Constitution. The court then concluded that the school board was not bound by the statutory requirement to adopt the hearing committee's opinion as its own decision. McMillen timely appeals from the district court's order finding K.S.A.1991 Supp. 72-5443 unconstitutional. The merits of McMillen's dismissal and the specific findings of the hearing committee are not before the court for

Page 679

review and are not germane to the issues on appeal. Further proceedings in the district court have been stayed pending the final determination of this appeal.

[252 Kan. 454] K.S.A. 72-5436 et seq. set forth and govern the due process procedure afforded to a tenured schoolteacher in an employment dispute relating to the nonrenewal of a teacher's contract. K.S.A.1991 Supp. 72-5438 and K.S.A.1991 Supp. 72-5439 provide for the selection of the due process committee and for the procedure before the committee. K.S.A.1991 Supp. 72-5443, the statute at issue before us, provides:

"(a) Unless otherwise agreed to by both the board and the teacher, the hearing committee shall render a written opinion not later than 30 days after the close of the hearing, setting forth its findings of fact and determination of the issues. The opinion of the hearing committee shall be submitted to the teacher and to the board and shall be binding on both parties.

"(b) Upon receiving the written opinion of the hearing committee, the board shall adopt the opinion as its decision in the matter and such decision shall be final, subject to appeal to the district court as provided in K.S.A. 60-2101, and amendments thereto."

At the outset, a brief review of the legislative history of 72-5443 is deemed appropriate. As originally adopted in 1974, 72-5443 permitted a board of education to accept or reject the recommendation of the hearing committee. The statute was amended in 1975 and 1976; however, those amendments are not material to the issues presented in this appeal. In 1984, the statute was amended to make a unanimous recommendation by the hearing committee binding on the school board. In 1991, the statute was again amended to make all decisions by the hearing committee binding on the school board. During the 1992 legislative session, the hearing process was changed again. The legislature replaced the three-person hearing committee with a single hearing officer. The decision of the hearing officer is final, subject to appeal by either party. L.1992 Ch. 185 §§ 2, 6. It is the 1991 amendment, as set forth above, which was controlling in this case and which the district court found violated §§ 2 and 5 of Article 6 of the Kansas Constitution.

Before turning to the constitutional issue, we are first faced with a jurisdictional challenge by McMillen in which he contends the school board lacked statutory authority pursuant to 72-5443(b) to appeal the hearing committee's opinion that the board had failed to show good cause to nonrenew McMillen's contract.

[252 Kan. 455] McMillen argues that K.S.A.1991 Supp. 60-2101(d) does not provide the school district with the right to appeal, and thus the district court, as well as this court, lacks jurisdiction.

K.S.A.1991 Supp. 60-2101(d) provides:

"A judgment rendered or final order made by a political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such subdivision or agency within 30 days of its entry, and then causing true copies of all pertinent proceedings before such subdivision or agency to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered. The clerk shall thereupon docket...

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18 practice notes
  • State v. Neufeld, No. 74412
    • United States
    • United States State Supreme Court of Kansas
    • November 8, 1996
    ...967] obligated to interpret the constitution and safeguard the basic rights reserved to the Page 1348 people. U.S.D. No. 380 v. McMillen, 252 Kan. 451, 461, 845 P.2d 676 When a case is decided on grounds of public policy without the benefit of a constitutional declaration from which an infl......
  • Gannon v. State, No. 109,335.
    • United States
    • United States State Supreme Court of Kansas
    • March 7, 2014
    ...include a Section 1 duty on the legislature to establish and maintain public schools in the state ( U.S.D. No. 380 v. McMillen, 252 Kan. 451, 463–64, 845 P.2d 676 [1993] ) and a Section 6(b) duty to finance educational interests of the state, which includes K–12 public education. See U.S.D.......
  • Unified School Dist. No. 229 v. State, No. 70931
    • United States
    • United States State Supreme Court of Kansas
    • December 2, 1994
    ...us. The constitutional challenge goes only to testing the legislature's power to enact the legislation. In U.S.D. No. 380 v. McMillen, 252 Kan. 451, 845 P.2d 676 (1993), constitutional challenges were asserted, as in the case before Page 1174 us, that certain legislation violated provisions......
  • State ex rel. Morrison v. Sebelius, No. 98,691.
    • United States
    • United States State Supreme Court of Kansas
    • March 11, 2008
    ...power is the "`power to hear, consider and determine controversies between rival litigants'"); U.S.D. No. 380 v. McMillen, 252 Kan. 451, Syl. ¶ 5, 845 P.2d 676 (1993) ("[t]he judiciary interprets, explains, and applies the law to controversies"); see Dorf, The Relevance ......
  • Request a trial to view additional results
18 cases
  • State v. Neufeld, No. 74412
    • United States
    • United States State Supreme Court of Kansas
    • November 8, 1996
    ...967] obligated to interpret the constitution and safeguard the basic rights reserved to the Page 1348 people. U.S.D. No. 380 v. McMillen, 252 Kan. 451, 461, 845 P.2d 676 When a case is decided on grounds of public policy without the benefit of a constitutional declaration from which an infl......
  • Gannon v. State, No. 109,335.
    • United States
    • United States State Supreme Court of Kansas
    • March 7, 2014
    ...include a Section 1 duty on the legislature to establish and maintain public schools in the state ( U.S.D. No. 380 v. McMillen, 252 Kan. 451, 463–64, 845 P.2d 676 [1993] ) and a Section 6(b) duty to finance educational interests of the state, which includes K–12 public education. See U.S.D.......
  • Unified School Dist. No. 229 v. State, No. 70931
    • United States
    • United States State Supreme Court of Kansas
    • December 2, 1994
    ...us. The constitutional challenge goes only to testing the legislature's power to enact the legislation. In U.S.D. No. 380 v. McMillen, 252 Kan. 451, 845 P.2d 676 (1993), constitutional challenges were asserted, as in the case before Page 1174 us, that certain legislation violated provisions......
  • State ex rel. Morrison v. Sebelius, No. 98,691.
    • United States
    • United States State Supreme Court of Kansas
    • March 11, 2008
    ...(judicial power is the "`power to hear, consider and determine controversies between rival litigants'"); U.S.D. No. 380 v. McMillen, 252 Kan. 451, Syl. ¶ 5, 845 P.2d 676 (1993) ("[t]he judiciary interprets, explains, and applies the law to controversies"); see Dorf, The Relevance of Federal......
  • Request a trial to view additional results

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