Simpson v. Van Ryzin

MADDOX, Justice

(concurring specially).

The really tough question for me to resolve in this case was whether the procedure set out in Tit. 55, § 315, Code, 1940, providing for a ^oil-termination hearing comports with procedural due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States. After a study of the interpretations made by the Supreme Court of the United States concerning the rights of public employees, I am convinced that the state and federal governments, even in the exercise of their internal operations, do not constitutionally have the complete freedom of action enjoyed by a private employer. Cafeteria & Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 897 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961). During the past decade, I note a definite trend to protect “interests” of public employees. In Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972), the Supreme Court of the United States said that “(w)hen protected interests are implicated the right to some kind of prior hearing is paramount.”

Because of some of the language of the Roth case, I do not believe that Van Ryzin’s termination could become effective until after he had a hearing. However, I do not believe Roth is authority for the proposition that the Alabama statute which grants to a dismissed employee the right to demand a /wf-termination hearing fails to accord procedural due process in every instance.

Most of the Civil Service statutes with which I am familiar, including that of the Federal Government, only provide for a /wf-termination hearing. Many Teacher Tenure Statutes do not provide for a pretermination hearing. It would probably be wise and preferable if these statutes contained provisions which would grant a public employee the right to a hearing prior to his discharge. I find no decisional law, however, which has interpreted the Fourteenth Amendment to require such a procedure. In Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970), it was held that a pre-termination evidentiary hearing was necessary to provide a welfare recipient with procedural due process. There, the Supreme Court rejected the argument of the welfare officials that the combination of the existing post-termination “fair hearing” and informal pretermination review was sufficient. Similar results were reached in Boddie v. Connecticut, 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed. 2d 113 and Bell v. Burson, 402 U.S. 535 , 91 S.Ct. 1586 , 29 L.Ed.2d 90 . These Supreme Court cases are very persuasive that when protected interests of “liberty” and “property” are implicated the right to some kind of prior hearing is paramount. Here, Van Ryzin’s “liberty” interest was implicated. The appointing authority, in terminating Van Ryzin, charged him with dishonesty. Since his good name, reputation, honor or integrity was at stake, he was entitled to notice and an opportunity to be heard. Board of Regents v. Roth, supra. Under Roth , I think that before his termination could become effective with regard to his “liberty” interest, he was entitled to a hearing. There is another reason why I think that the termination was not effective on the date the first notice was sent and that reason is that the first notice was woefully deficient, even under the most liberal construction of what would constitute “notice.”

The Fourteenth Amendment’s procedural protection of “property” is a safeguard of the security of interests that a person has already acquired in specific benefits *34 —here, Van Ryzin’s “right” to continued employment. I 'use the word “right” because I think the Supreme Court of the United States has fully and finally rejected the wooden distinction between “rights” and “privileges” that once seemed to govern the applicability of procedural due process rights. See Board of Regents v. Roth, supra. But as said in Roth ,

“Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”

Van Ryzin’s “property” interest in continued employment was created by the Merit System Act and the regulations promulgated pursuant thereto. The Act and regulations defined how his “property” interest could be terminated. Therefore, I am not prepared to say that the statutory procedure, which provided only for a post-termination hearing, if demanded, fails to comport with procedural due process, insofar as Van Ryzin’s “property” interest is concerned.

In Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2717 , 33 L.Ed.2d 581 (1972), Mr. Chief Justice Burger, in a special concurring opinion, said:

“I concur in the Court’s judgments and opinions in Perry and Roth, but there is one central point in both decisions that I would like to underscore since it may have been obscured in the comprehensive discussion of the cases. That point is that the relationship between a state institution and one of its teachers is essentially a matter of state concern and state law. The Court holds today only that a state-employed teacher who has a right to re-employment under ■ state law, arising from either an express or implied contract, has, in turn, a right guaranteed by the Fourteenth Amendment to some form- of prior administrative or academic hearing on the cause for nonrenewal of his contract. • Thus whether a particular teacher in a particular context has any right to such administrative hearing hinges on a question of state law. The Court’s opinion makes this point very sharply:

“ ‘Property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .’ Board of Regents v. Roth, 408 U.S. 564, at p. 577 , 92 S.Ct. 2701, at p. 2709 , 33 L.Ed.2d 548 .

“Because the availability of the Fourteenth Amendment right to a prior administrative hearing turns in each case on a question of state láw, the issue of abstention will arise in future cases contesting whether a particular teacher is entitled to a hearing prior to nonrenewal of his contract. If relevant state contract law is unclear, a federal court should, in my view, abstain from deciding whether he is constitutionally entitled to a prior hearing, and the teacher should be left to resort to state courts on the questions arising under state law.”

Therefore, I do not believe that Van Ryzin was denied procedural due process insofar as his “property” interest was concerned.

The wisdom of changing the Merit System Law, the Teacher Tenure Law or other laws governing the retention or dismissal of public employees to provide for a ^re-termination hearing addresses itself to the Legislature. The Executive could also grant a request for a ^re-termination hearing, in my judgment, where requests were made. The function of the Judiciary is to review, when called upon, the action of the Legislature and the Executive to see if it conforms to the Constitution.

BLOOD WORTH, Justice, expresses his concurrence in most of the views expressed by Mr. Justice MADDOX in the foregoing special concurrence.