The opinion
KELLY, Judge,
dissenting.
I respectfully dissent.
The law is clear that due process guaranteed by the Fourteenth Amendment to the Constitution of the United States requires an impartial decision maker. Goldberg v. Kelly, 397 U.S. 254, 271 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970). Case law, both federal and state, generally rejects the idea that the combination of judging and investigating functions in an administrative body is a denial of due process. Hortonville Joint School District No. 1 v. Hortonville Education Association, 426 U.S. 482 , 96 S.Ct. 2308 , 49 L.Ed.2d 1 (1976), Harrisburg R-VIII School District v. O’Brian, 540 S.W.2d 945, 950 [5] (Mo.App.1976).
We have here, however, an issue which involves more than knowledge gleaned in a preliminary investigation to ascertain if there is cause to file charges and conduct a termination hearing. The School District, five of the six members of the Board sitting in judgment, and the Superintendent of Schools were named defendants in a Complaint filed in the Federal District Court for the Eastern District of Missouri, Eastern Division, by this teacher, following a finding of reasonable cause by the Equal Employment Opportunity Commission, charging the defendants with sex discrimination. Count I of the Complaint sought a declaration of sex discrimination, an injunction, and damages, both actual and punitive, against all defendants. Punitive damages sought were in the amount of $100,000.00. Count II was an action under 42 U.S.C. § 1983 , and Count III, one for violation of the Teacher Tenure Act. Each of these Counts sought essentially the same relief prayed for in Count I. The decision making abilities of those members of the Board who were party defendants in the lawsuit in the Federal Court might have been colored by their involvement in that suit and the possible monetary damages which could be rendered if the probable cause found by the Equal Employment Opportunity Commission is proved correct.
Prior to the commencement of the hearing, appellant sought and was denied an injunction from the Federal Court in which her Complaint was then pending to restrain the defendants from proceeding with the scheduled hearing until after trial of the cause in that Court. The court relied upon the “rule of necessity” in denying the injunction and the right of appeal under state law available to appellant from any adverse decision of the School Board, and the conclusion that the charges then pending before the School Board related to matters which allegedly occurred “long after the institution of this suit.”
When the President of the School Board convened the hearing, counsel for the appellant raised the question whether the School Board could fairly try the issues in this disciplinary proceeding in view of the fact that five of the six members of the Board were defendants in the suit then pending in the Federal Court. He suggested that perhaps an opinion of the Attorney General should be requested on the question whether the Board had the authority to proceed in fairness to Miss Eddington. Counsel stated that it was his opinion that for the School Board to proceed would be violative of his client’s constitutional right to a fair trial and due process under the Constitutions of the United States and the State of Missouri. Counsel for the School Board responded, stating- that this was the same argument appellant had presented to the *288 Federal Court and which had resulted in a ruling adverse to appellant there. Because the President of the Board concluded that this Board was the only Board “left to handle it,” he ordered the hearing to proceed. This issue was again raised after the adjournment of the initial session when, on June 29, 1976, the hearing was reconvened, and the Board was again requested to disqualify itself on the ground that it was not a fair body to hear ’the issues. Despite appellant’s entreaties, the hearing proceeded to conclusion.
The “rule of necessity” relied upon by the Federal Court is that rule which holds that where the legislature has provided for a hearing before a Board or other tribunal, and that Board is the only tribunal clothed with the power of conducting a hearing and resolving the issues, then, as a matter of necessity, where no provision is made for a substitution of personnel making up the Board or for a hearing before another administrative body, disqualification of the Board or any of its personnel will not be permitted. The reasoning for this rule is that to hold otherwise would allow the doors of justice to be barred and the wrongdoer be permitted to pursue his or her activities unchecked for lack of a forum.
The “rule of necessity” has been followed in this State. Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570 , 575 — 576[4] (Mo.1965).
However, I do not believe this rule to be sacrosanct, and in a proper case the Fourteenth Amendment will permit a court to strip a Board of its decision making power where it can be demonstrated that the Board could not act consistently with due process by reason of some personal or financial stake in a matter pending before it and when a conflict of interest is clear. Hortonville Joint School District No. 1 v. Hortonville Education Association, supra, 1. c. 491-492[4],
The crucial question here is whether the fact that the five members of this tribunal were defendants in the suit then pending in the Federal Court is a proper case for application of the “rule of necessity.” Appellant has sued each of these five members of the Board for money damages — “all back wages lost including interest” and $100,000 punitive damages — because they have “engaged in unlawful employment practices with respect to plaintiff because of her sex in violation of 42 U.S.C. 2000 3 [2000C-3] et seq.” The bases for her sex discrimination action were that the defendants failed to promote her, refused her merit increases in pay and demoted her. Under these circumstances can it be said that the five members of the Board did not have the kind of personal or financial stake in the outcome of this hearing which might create or furnish grounds for the belief that they cannot sit in judgment?
The cases cited by the majority opinion do not reach this point. In each, the question was, whether the fact that the Board which initiated the charges also was the Board which conducted the hearing on those charges, was disqualifying. The holding in Hortonville, supra, is not controlling here. The Court there merely held that a showing that the Board was involved in the collective bargaining negotiations preceding the filing of charges and the conduct of the hearing was not enough to overcome the “rule of necessity.” Furthermore, in Hor-tonville there was no factual dispute for the tribunal to decide; it was admitted by the teachers that they were on strike and under Wisconsin law it was illegal for them to strike. The Supreme Court held that the decision in Hortonville was not an adjudicative one, 426 U.S. 1 . c. 495, 96 S.Ct. 1 . c. 2315, and “does not in the main turn on the Board’s view of the ‘seriousness’ of the teachers’ conduct or the factors they urge mitigated their violation of state law . The Board’s decision was only incidentally a disciplinary decision; it had significant governmental and public policy dimensions as well.”
Here the facts were disputed and the charges contested by the teacher. The hearing was a disciplinary one where the maximum discipline — termination—was imposed. The decision in this proceedings had no significant governmental or public policy dimensions.
*289 I must candidly admit I have found no case holding the fact that the judge, or the tribunal, or one or more of its members, is a party to a lawsuit wherein he or it is sued for damages by the person whose rights will be subjected to decision is, thereby, per se, disqualified from proceeding in the cause.
The issue was raised in Arnold v. McGuiness, 289 F.Supp. 210 (D.C.N.D. of Calif. 1968) where the defendant, a judge, was being sued for an alleged violation of the plaintiff’s civil rights on the ground that the judge was disqualified. The basis for his disqualification, as alleged by plaintiff, was that he acted without jurisdiction when he ordered the plaintiff to appear and show cause why he should not be held in contempt and when he subsequently issued a bench warrant for the arrest of the plaintiff upon the failure of the plaintiff to appear at the scheduled hearing on the order to show cause. Plaintiff’s contention that the judge was without jurisdiction rested on the fact that at the time the order to show cause and the bench warrant were issued the plaintiff had a prior civil rights suit pending against the same judge. The defendant judge moved for dismissal of this second civil rights suit, and in sustaining that motion, the District Court, referring to § 170 of the California Code of Civil Procedure providing for disqualification of judges, said, 1. c. 210:
“An examination of that section reveals that there is no provision for the per se disqualification for the reasons given by the plaintiff. At the most, the fact that Judge McGuiness was a defendant in a law suit brought by Mr. Arnold would only be a ground for claiming that the Judge was disqualified for bias or prejudice under Section 170(5).”
The basis for the dismissal of the civil rights action in Arnold was the failure of the plaintiff to comply, in the contempt proceedings, with the requirements of Section 170 of the California Code of Civil Procedure that a written statement objecting to the hearing and setting forth the facts constituting the grounds for disqualification be presented to the court and filed with the clerk at the earliest practicable opportunity.
Appellant, in her Petition for Review, raised the question of bias and prejudice on the part of the decision makers here and when her counsel appeared in the Circuit Court on August 20,1976, he requested the Court to take evidence on the point pursuant to the provisions of § 536.140.4 RSMo. 1969, as amended Laws 1953, p. 679, § 2. The Circuit Court denied this request. In so doing I believe it erred to the prejudice of the appellant, and I would reverse the judgment of the Circuit Court and remand the cause for an evidentiary hearing on this point.
Our Administrative Review Act makes no provision for a de novo proceeding, nor is there any provision for the School Board which recognizes that it cannot be an impartial decision maker as constitutionally contemplated to obtain an authorized impartial hearing officer or decision maker to sit in its place. This deficiency could be cured by appropriate legislative action.
The Wisconsin Supreme Court, when faced with this dilemma found authority under the Wisconsin Constitution, § 9, Art. 1, to fashion an adequate remedy. It held that the School Board should make the initial determination as to the firing of a teacher. However, in those situations where the teacher was discharged or otherwise disciplined and due process was required, and the School Board was in an adversary position, it provided for the dissatisfied teacher to file a petition and thereby obtain a de novo determination of all issues in any court of record in the county where the School Board or a part of it is located. The issues were to be determined by the court without a jury, unless the judge determined to call an advisory jury. The court was to resolve any factual disputes and provide for a reasonable disposition of the action. Hortonville Education Ass’n. v. Hortonville Joint School District No. 1, 66 Wis.2d 469 , 225 N.W.2d 658, 673 (1975).
While I would not necessarily be averse to following the lead of the Wisconsin Su *290 preme Court in fashioning a procedure for resolving this issue, I am of the opinion that with the case in this posture it is the better procedure to remand the cause to the Circuit Court for a determination of the question whether the School Board was disqualified by reason of bias or prejudice and to permit the parties to present evidence on this issue, pursuant to the authority of § 536.140.4 RSMo.1969, as amended Laws 1953, p. 679, § 2.