Petition — Hortonville Joint School District No. 1 v. Hortonville Education Ass'n

4

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tel Cor ee oe isd pee ee ebede ka 2

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Constitutional Provisions aad Statutes Involved ...... 2

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Reasons for Granting the Writ ................... 7

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APPENDIX INDEX

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TABLE OF AUTHORITIES

Cases:

Arnett v. Kennedy, 416 U.S. 134 (1974) ......... 7, 8

Bullock v. Mumford, 509 F.2d 384 (D.C. Cir., ae

rehéaring en banc denied, 509 F.2d 388 (Jan. 8,

APC her yee r TT ery ToT TT ee Or ee 11

Farrelly v. Timberlane Regional School District, 324

Atl.2d 723 (New Hampshire, 1974) .......... 10, 11

Federation of Teachers v. Community College, 88

L.R.R.M. 2873 (W.D. Mich. 1974) ............. 11

Hudson Distributors, Inc. v. Eli Lilly & Co, 377 U.S.

Se EE 5 o'4 5 ook 4. 6-4n ecb hee ones ceeus 7

Johnson v. Board of Regents, 377 F. Supp. 227 (W.D.

. Ee han a el ery ae eee 12

Local Nc. 438 v. Curry, 371 U.S. 541 (1963) ....... 7

Mercantile National Bank v. Langdeau, 371 U.S.

SOS CIDER) onc ccccccvecccccccoescecesceses

Morrissey v. Brewer, 408 U.S. 471 (1972) ....6, 7-8,

N.L.R.B. v. Mackay Radio Telegraph Co., 304 U.S.

0 OSE T

Pickering v. Board of Education, 391 U.S. 563 (1968).

Rockwell v. Crestwood School District, — Mich. —,

227 N.W.2d 736 (April, 1975) ....--- ee ee eeeee

Sanford v. Rockefeller, — N.Y. —, 88 L.R.R.M.

2181 (1974), appeal dismissed, 89 L.R.R.M, 2300

i . errr rr bene ee eens

Shirck vy. Thomas, 447 F.2d 1025 (7th Cir. 1971) ....

Withrow v. Larkin, 43 U.S.L. Week (4459 (US.,

April 16, 1975) ....... cece eee eeeeeee so

Statutes:

1 Wisconsin Statutes:

Section 111.70 (4) (1) ....cccccccccccccccces 3,

o) bt, Sarre: iat 3,

SOS, BEE GED cccnsvcedecceeeseuse eet eeees

Article XIV, Section 1, Amendment to United States

rn. ck cbean bom 6e 66505 40.08 8006" 2,

7

N oO

IN THE

Supreme Court of the Gnited States

October Term, 1974

No.

HORTONVILLE JOINT SCHOOL DISTRICT NO 1;

BOARD OF EDUCATION OF HORTONVILLE

JOINT SCHOOL DISTRICT NO. 1; ROGER WEI-

ING, ROBERT HAUK, JEAN MEADS, FLOYD

MEYER, MERLIN PLAMANN, VICTOR SCHROTH

and RONALD SURPRISE, individually and as offi-

cers and members of the Board of Education of Hor-

tonville Joint School District No. 1; and MARVIN

OBRY, ROBERT KOHLS and GENE RIEDL, indi-

vidually and as administrators of Hortonville Joint

School District No. 1,

Petitioners,

Vv.

HORTONVILLE EDUCATION ASSOCIATION and

MICHAEL WISNOSKI, ROSE MARIE OLSON,

THOMAS NADEAU, JUDY MURPHY, RUSSEL

LICHTE and RONALD HAMMOND,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WISCONSIN

Petitioners pray that a writ of certiorari issue to review

the judgment of the Supreme Court of Wisconsin in this

case.

2

OPINIONS BELOW

The opinion of the Wisconsin Supreme Court (App. I,

infra, pp. A. 1-41) is reported officially at 66 Wis.2d 469

and unofficially at 225 N.W.2d 658 and 88 L.R.R.M. 3075.

The decision of the Wisconsin Circuit Court on Petitioners’

motion for summary judgment (App. II, infra, pp. A. 42-72)

is not officially reported, but is unofficially reported at 88

L.R.R.M. 2743. The decision of the Circuit Court deny-

ing Respondents’ motion for a temporary restraining or-

der (App. III, infra, pp. A. 73-81) is not reported.

JURISDICTION

The judgment of the Supreme Court of Wisconsin was

entered February 5, 1975. An order denying rehearings

was issued March 28, 1975. (App. I, infra, p. A-41).

The jurisdiction of this Court is invoked under 28 U.S.C.

1257 (3)

QUESTION PRESENTED

Whether the elected members of a public school board,

who have the exclusive authority under State law to dis-

charge teachers engaged in an illegal strike, are prohibited

by the due process clause of the Federal Constitution from

doing so because they are not sufficiently impartial de-

cisionmakers.

_CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Section 1 of Article XIV of the Amendments to the

Constitution of the United States provides as follows:

“. . . No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

3

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.”

1 Wis. Stat. Sec. 118.22 (2) (1973) provides: “No

teacher may be employed or dismissed except by a major-

ity vote of the full membership of the board.”

1 Wis. Stat. Sec. 111.70 (4) (1) (1973) provides:

“Strikes prohibited. Nothing contained in this subchapter

shall constitute a grant of the right to strike by any county

of municipal employee and such strikes are hereby ex-

pressly prohibited.”

STATEMENT OF THE CASE

Petitioners are a Wisconsin school district, the school

board, its elected, part-time members, and its agents. The

Hortonville School District serves a rural community of

8,500 persons. The teaching employees of the district were

represented in collective bargaining by Respondent Hor-

tonville Education Association, which is an affiliate of the

largest statewide teachers’ labor union, and of the Nation-

al Education Association.

On March 18, 1974, the teaching employees of the

School District went on strike. Qn March 20, the school

superintendent wrote each teacher a letter inviting him

to return to work. Several returned. On March 23, the

superintendent sent each teacher another letter inviting

him back to work, advising him the strike was illegal, and

that the board would not condone unlawful activity. None

returned to work in response to this letter. (App. I, infra,

pp. A. 2-3, A.Ap. 166-67)’

“A.Ap” refers to the ion of the record printed as the Appellants’

Aetandin te Go tee tm tee Supra Coun of Wancade. ats

4

The respondent teachers were then given separate writ-

ten notice that the superintendent had informed the

school board that the teacher was on strike, and notifying

the teacher of a disciplinary hearing scheduled before the

school board (App. I, infra, p. A. 3; A.Ap. 168, 179).

Hearings were held at which respondents appeared and

presented their defense through counsel. On April 2, 1974,

the school board terminated the employment of the

teachers, and so notified the teachers. (App. I, infra, pp.

A. 4-5; A.Ap. 172-73). Thereafter, the school board hired

replacement teachers. One of the terminated teachers re-

applied for employment, and he was rehired. (App. I,

infra, p. A. 5; A.Ap. 175-76)

On April 4, 1974, respondents commenced this action,

alleging that the discharges were unlawful under State law

and the due process clause of the Federal Constitution,

and praying that the school board be enjoined from hiring

replacements.’ On April 11, 1974, a Wisconsin Circuit

Court denied respondents’ request for a preliminary in-

junction against hiring replacements; the opinion noted

that the teachers were still on strike. (App. III, infra, pp.

A. 73-81, A.Ap. 145) On July 19, 1974, the Wisconsin Cir-

cuit Court granted petitioners’ motion for summary judg-

ment, holding that the discharges were valid under State

law and did not deny respondents due process. (App. II,

infra, pp. A. 71-72, A.Ap. 131) Respondents appealed.

On appeal, the Wisconsin Supreme Court explicitly held

?The amended complaint (A.Ap. 151-52) alleges that the discharges “de-

nied to the plaintiffs and others similarly situated the liberty and prop-

erty interests secured to them under the United States Constitution

.. .” (para. 9 of amended complaint) and “. . . denied to the plain-

tiffs, and other teachers similarly situated, procedural due process of

law as guaranteed under the Fourteenth Amendment of the United

States Constitution . . . .” (para. 10 of amended complaint).

5

in favor of petitioners on all State law issues. Most sig-

nificantly, that court said (App. I, infra, p. A. 10):

“from the statutes, the cases cited, and the contract,

we conclude the school board did have the power to

discharge the teachers who engaged in the prohibited

strike.”

Turning to respondents’ Federal constitutional claims,

the Wisconsin Supreme Court defined the procedural due

process issue narrowly: “. . . the appellants allege their

constitutional inadequacy in only one respect, i.e., the lack

of an impartial decisionmaker.”* (App. I, infra, pp. A.

21-22)

The Wisconsin court decided that issue of Federal

constitutional law in favor of respondents and reversed

the Circuit Court, with two justices dissenting.

In finding a due process violation, the Wisconsin Su-

preme Court first held that the teachers were deprived of

a constitutional property right, rejecting petitioners’ ar-

gument that illegal striking constituted abandonment of

any contract-based property right for due process pur-

poses. The court said that whether a strike occurred was a

fact to be determined at a hearing. (App. I, infra, p. A. 19)

However, the fact of a strike by the discharged teachers

has never been contested by respondents, and the Wiscon-

sin Supreme Court necessarily conceded that respondents

did strike. (App. I, infra, p. A. 2)*

’The Wisconsin Supreme Court also considered and rejected a claim by

respondents, not raised in the Circuit Court, that they had been de-

nied equal protection of the laws.

*See also Appendix VI, a recent Appeal Tribunal Decision by the Ws-

consin Department of Industry, Labor and Human Relations, in

which a member of the respondent class was denied unemployment

a benefits becamse he engaged in an unlawful strike and

was fore discharged for misconduct.

6

The Wisconsin Supreme Court held that the board was

constitutionally prohibited from making the decision to

discharge. The court relied on the statement in Morrissey

v. Brewer, 408 U.S. 471 (1972), that it was essential

“. . even in cases of undisputed or stipulated facts, that

an impartial decisionmaker be charged with the respon-

sibility of determining what action shall be taken on the

basis of those facts.” (App. I, infra, p. A. 24) The court said

the available review of the school board’s decision*®

would not “provide for review to determine whether an-

other course of action such as mediation, injunction, con-

tinued collective bargaining or arbitration would have

been a more reasonable response on the part of the de-

cisionmaker.” (App. I, infra, p. A. 27) The court held that

Morrissey requires that “an impartial decisionmaker be

charged with the responsibility of determining what action

shall be taken... .” (App. I, infra, p. A. 24)

The court stated, “this is not to suggest, of course, that

the board members were anything but dedicated public

servants, trying to provide the district with quality educa-

tion while still keeping within its limited budget.” (App.

I, infra, p. A. 24) There is no allegation or finding of a per-

sonal bias on the part of the memters of the school board.

Despite the absence of a specific bias, despite the fact

that the state statute (Wis. Stat. 118.22 (2) ) required that

only the elected school board could make the decision to

discharge, and solely because the school board was bar-

gaining and was required by statute to bargain with

‘Wisconsin law provides for review by filing a prohibited practices com-

plaint which could allege either antiunion motivation (Wis. Stat. Sec.

111.70(3) (a)3.) or breach of collective agreement (Wis. Stat. Sec.

111.70{3) (a)S.). App. V, infra, p. A. 83). Judicial review under State

law of certiorari (App. I, infra, p. A. 27). The Hortonville strikers have

never filed any prohibited practice complaint against the petitioners

on any aspect of the bargaining or strike.

7

the union which represented the striking employees, the

Wisconsin Court held that: “. . . the Board was not an im-

partial decisionmaker in a constitutional sense . . .” (App.

I, infra, pp. A. 24-25)

The decision of the Wisconsin Supreme Court is a final

decision. Hudson Distributors, Inc. v. Eli Lilly & Co., 377

U.S. 386, 389 n.4 (1964). The Wisconsin Supreme Court

decided all issues of state law in favor of petitioners, so

that if the federal due process decision is wrong, there

would be nothing left to litigate. Local No. 438 v. Curry,

371 U.S. 541, 550-51 (1963).

The Wisconsin Supreme Court remanded the case for

amended pleadings (App. I, infra, p. A. 29) to raise new,

nonconstitutional issues. In effect, any litigation after re-

mand would be a new action for purposes of appeal-

ability. The trial court could not change the resolution of

the constitutional issue here presented, yet the trial ordered

would be long, complex, and pointless if the due process

decision was incorrect. Mercantile National Bank v. Lang-

deau, 371 U.S. 555, 558 (1963).

After Withrow v. Larkin, 43 U.S.L. Week 4459-67

(U.S. April 16, 1975), was decided, petitioners asked the

Wisconsin Supreme Court for a stay for the purpose of

filing this Petition. Petitioners and respondents both

cited Withrow in submissions to the Wisconsin Court re-

specting the requested stay. The Wisconsin Supreme Court

granted the stay. (App. IV, infra, p. A. 82)

REASONS FOR GRANTING THE WRIT

A. The decision of the Wisconsin Supreme Court in

this case seriously misconstrues this Court’s decisions in

Arnett v. Kennedy, 416 U.S. 134 (1974), and Morrissey v.

Brewer, 408 U.S. 471 (1972), as construed by this Court

in Withrow v. Larkin, decided after the Wisconsin Supreme

Court decision in this case.

The decision in Arnett should be directly controlling.

Here, as in Arnett, the same Wisconsin statute which

conferred upon respondents whatever property right they

may have had to continued employment, also established

that aspect of the discharge procedures which respon-

dents here attack—the school board’s exclusive authority

to discharge teachers. (Compare the Opinion of Mr. Justice

Rehnquist.)

Here, too, as in Arnett, the public interest in continued

operation of the public schools supports the procedures in

question. (Compare the Opinion of Mr. Justice Powell.)

The school board members are elected officials whose sole

mandate is to provide universal public education within

the bounds of an acceptable school budget. Petitioners

here faced an unlawful strike which closed the schools.

The striking teachers were then under one-year contracts.

Three days before the strike, they had been offered re-

newal contracts as required by State law. See Wis. Stat. §

118.22 (2). App. I, at p. A. 9, infra. The question whether

to hire replacement teachers could not be divorced from the

question whether to discharge respondents,® and both is-

sues went to the very essence of the responsibilities as-

signed to the school board under State law. Indeed, the

literal meaning of the Wisconsin Supreme Court’s opinion

is that elected school officials are barred by the Federal

*Respondents have publicly claimed they are entitled to back pay for

1974 and 1975, a period in which petitioners hired and paid replace-

ment teachers. Thus, the Wisconsin Supreme Court's interpretation of

the Federal Constitution threatens to bankrupt this small school dis-

trict.

9

Constitution from carrying out the most important part of

the duties which the citizens of Wisconsin have conferred

upon them!

Morrissey v. Brewer does not require such a result. In

the first place, this Court in Morrissey if anything con-

firmed the constitutionality of a school board as decision-

maker. At issue in Morrissey was the impartiality and in-

dependence of a single, involved parole officer. This Court

held that the parole revocation function requires “a

‘neutral and detached’ hearing body such as a traditional

parole board, members of which need not be judicial of-

ficers or lawyers,” 408 U.S. at 489 (emphasis added). In

this case, the hearing and decision to discharge were con-

ducted by the school board, not by the school superinten-

dent. The analogy to procedures approved by this Court

in Morrissey is clear.

In the second place, this case does not involve the issue

presented in Morrissey—‘“when review of an initial de-

cision is mandated, [whether] the decisionmaker must

be other than the one who made the decision under re-

view,” Withrow v. Larkin, 43 U.S.L. Week at 4466 n.25.

Likewise, this case is distinguishable from Pickering v.

Board of Education, 391 U.S. 563 (1968), where “the

trier of fact was the same body that was also. . . the victim

of appellant’s statement,” Withrow v. Larkin, 43 U.S.L.

Week at 4465 n. 19. Rather in this case, like Withrow,

the only impartiality of which petitioner school board is

accused is the fact that it must take into account its statu-

tory obligations to operate the public schools and to engage

in collective bargaining in making its decisions to hire

and to fire individual teachers. Petitioners submit that the

onstitution does not prohibit such logical grouping of

10

governmental functions. Indeed, an intelligent democracy

requires it.

B. Employers in private business have the right to

permanently replace economic strikers, even though the

strike is not only legal, but protected by federal statute.

N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333

(1938). If procedural due process prohibits government

employers from effectively replacing strikers, then unlaw-

ful strikes will be better protected than lawful strikes. And

legislatures will be unable to change the rule, except by

refraining from granting property rights to employees.

Where, as here, the strike is unlawful, the strikers have

been notified they are believed to be striking, and they do

not deny it, the rule should be they have abandoned their

property for procedural due process purposes. The New

Hampshire Supreme Court so held in Farrelly v. Timber-

land Regional School District, 324 Atl.2d 723 (1974).

The Labor Management Relations Act has a similar pro-

vision. 29 U.S.C. Sec. 158(d) provides that any em-

ployee who strikes within the “cooling off” period ceases

to be an employee for purposes of the Act. Such a rule

would not hurt the public, since strikers could be rehired

on any terms agreed to.

Even if a property interest remains after a strike be-

gins, government employers who have the responsibility

to run the public schools, including the hiring and firing

of teachers, should not be prohibited from carrying out

these obligations merely because they aiso have the duty

to set employment terms through bargaining with the

union which represents strikers. Withrow v. Larkin, supra.

C. This Court has not decided whether the bare pres-

1]

ence of two functions vis a vis a public employee (in this

case setting terms of employment through bargaining, and

discharging) itself disqualifies a decisionmaker. Issues sur-

rounding the discharge of striking public employees are

being litigated frequently, and with varying results on the

“impartial decisionmaker” question.

New Hampshire in Farrelly held striking was aban-

donment of tenure. The Court of Appeals for the District

of Columbia Circuit decided in Bullock v. Mumford, 509

F.2d 385, rehearing en banc denied, 509 F.2d 388

(D.C. Cir. 1974, 1975), that Library of Congress officials

could discharge employees who struck to protest alleged

race discrimination by the Library officials.

The New York Court of Appeals in Sanford v. Rockefel-

ler, N.Y. , 88 L.R.R.M. 2181 (1974), appeal dis-

missed, 89 L.R.R.M. 2300 (U.S. 1975), decided after

remand by this Court, 416 U.S. 977 (1974), that the

government employer could discipline striking employees

where review of the decision was not de novo.

The Supreme Court of Michigan recently held that

firing of strikers by a school board did not violate due pro-

cess. Rockwell v. Crestwood School District, — Mich. —,

227 N.W.2d 736 (1975).

The United States District Court for the Western Dis-

trict of Michigan held in Federation of Teachers v. Com-

munity College, 88 L.R.R.M. 2873 (1974), that a college

which discharged striking teachers was constitutionally

required (because the court, based upon factual proof,

found antiunion motivation) to file an action in a state

court asking for a declaratory judgment whether or not

the strike was illegal.

The Court of Appeals for the Seventh Circuit held in

12

Shirck v. Thomas, 447 F.2d 1025, 1028 (1971), that an

employee is not entitled to a wholly independent fact-

finding tribunal. In Johnson v. Board of Regents, 377 F.

Supp. 227 (W.D. Wis. 1974), the court held that a univer-

sity chancellor, who had participated in a decision to lay

off employees, could decide who should be laid off.

The Hortonville case demonstrates the dilemma which

the nation’s governmental employers face so long as the

“process due” striking government employees is not de-

fined by this Court. School boards should be responsive to

their constituents, and must operate the schools. Simul-

taneously, they are in many states required to bargain

with unions. Faced with a strike, school boards must make

difficult policy decisions quickly, yet they and their schools

face potential liability unless this Court clarifies the pro-

cedural parameters within which such decisions must con-

stitutionally be made.

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

JACK D. WALKER

JAMES K. RUHLY

MELLI, SHIELS, WALKER & PEASE, S.C.

119 Monona Avenue

Madison, WI 53703

Attorneys for Petitioners

A-1

APPENDIX |

NO. 635

August Term, 1974

STATE OF WISCONSIN: IN SUPREME COURT

HORTONVILLE EDUCATION ASSN., et ai.,

Appellants,

v.

HORTONVILLE JOINT SCHOOL DISTRICT No. 1,

etal,

Respondents,

APPEAL from a judgment and an order of the circuit

court for Outagamie county: ALLAN J. DEEHR, Cir-

cuit Judge of the Fourth circuit, Presiding. Judgment re-

versed, order affirmed.

This is a class action which grew out of a municipal

labor dispute at Hortonville, Wisconsin, involving on one

side the public school teachers in the Hortonville Joint

School District No. 1 and their representative and bargain-

ing agent, the Hortonville Education Association (HEA),

and on the other side the Hortonville Joint School District

No. 1 and its representative and bargaining agent, the

Board of Education of Hortonville Joint School District

No. 1.

The labor dispute began in January, 1974, over the

1973-1974 and the 1974-1975 teachers’ contracts. Col-

lective bargaining did not resolve the dispute and in March,

1974, a substantial number of teachers engaged in a strike.

The school board discharged over 80 teachers represented

by the appellant HEA. This action was commenced to de-

A-2

clare the action of the school board null and void and for

reinstatement of the teachers

The trial court granted the school board’s motion for

summary judgment as to the teachers’ first cause of action

and sustained the demurrers to the other three causes of

action.

The appellants Michael Wisnoski, Rose Marie Olson,

Thomas Nadeau, Judy Murphy, Russel Lichte and Ronald

Hammond are teachers who were discharged by the board

and represent all former Hortonville teachers similarly

situated. Respondents Roger Weihing, Robert Hauk, Jean

Meads, Floyd Meyer, Merlin Plamann, Victor Schroth and

Ronald Surprise are members of the school board. Re-

spondent Robert Kahes is the Hortonville High School

Principal. Respondent Eugene Riedl is the Hortonville

Junior High School and Elementary School principal. Re-

spondent Marvin Obry is superintendent of the district.

The material facts, as they appear from the pleadings,

the affidavits and other documents filed in support of and

in opposition to the motion for summary judgment, are

not in dispute. In January, 1974, negotiations between the

HEA and the school board were in progress to reach a

collective bargaining agreement on 1973-1974 and 1974-

1975 teaching contracts. From about January 24 to Jan-

uary 30, the HEA engaged in “informational picketing,”

which did not interrupt any teaching activities. On Mon-

day, March 18, the teachers went on strike. On March

20, the school district superintendent, at the direction of

the board, sent letters to the teachers inviting them to re-

turn to their jobs. Several teachers did return on Friday,

March 22nd.

On March 23rd, the superintendent, again at the direc-

tion of the board, sent a letter to each teacher again in-

A-3

viting them to return to work and advising them that

strikes by public employees were illegal and that the board

would not “condone unlawful activity” by its employees.

None of the 86 teaching employees then on strike returned

to work in response to said letter. On Tuesday, March

26th, and Wednesday, March 27th, classes were conducted

for most students through the use of substitute teachers.

At a special school board meeting on Friday, March

29th, the board decided to schedule disciplinary hearings

for each individual teaching employee then on strike.

Notices’ of the individual hearings were addressed to each

teaching employee and specified the purpose of the hear-

ing and the time at which he or she was to appear. The

hearings, which were scheduled twenty minutes apart,

were to be held on Monday, April 1, Tuesday, April 2,

and Wednesday, April 3. The notices were delivered to

the Outagamie county sheriff's department on Friday,

March 29th, with a request that they be served as soon as

possible. Twenty-three of the notices were served on Fri-

day, March 29th, forty-four were served on Saturday,

March 30th, twenty on Monday, April Ist, and one on

Tuesday, April 2nd. The HEA was not notified of the hear-

ing.

“The Board of Education for the Hortonville Community Schools has

been informed by Superintendent Obry that since March 18, 1974:

“You have breached your individual employment contract;

“You have engaged in an unlawful strike contrary to Wisconsin

law.

“This alleged conduct, if true, subjects you to disciplinary action

by the Board, including termination of your employment contract.

“You are hereby notified that the Board of Education has set a

hearing on this matter for , April —, 1974, at — o'clock in

the noon, or as soon thereafter as you may be heard, at the high

school library, 246 North Olk Street, Hortonville.

“At this hearing you will be given the opportunity to present any

statement or evidence relevant to this alleged conduct.

“Be further advised that after such hearing the Board will notify

you in writing of what disciplinary action, if any, the Board has de-

termined appropriate.”

A-4

On Monday morning, April Ist, almost all the teaching

employees represented in this class action appeared before

the board en masse with their retained counsel and indi-

cated, through him, that they would refuse to answer

questions that they did not want individual hearings but

rather preferred to be treated as a group. Their counsel

also objected, on due process grounds, that the teaching

employees did not receive fair notice of the hearings and

that they were entitled to an impartial decisionmaker to

determine the appropriate disciplinary measures, if any.

Counsel for the teachers alleged that the work stoppage

was provoked by the board’s conduct, and sought to ex-

amine members of the board to establish that fact. This

request was refused, but counsel was allowed to make

an offer of proof regarding the unsatisfactory nature of

the board’s contract offers, its allegedly coercive and un-

lawful bargaining techniques, and an allegation that

teachers were locked out of their places of employment.

The board refused to consider the offer of proof and the

hearing adjourned at 1:20 p.m.

On Tuesday morning, April 2nd, counsel for the teachers

appeared before the board with four other teaching em-

ployees who had not appeared the previous day. These in-

dividuals all indicated that they took the same position as

the other teachers and wished to be considered with the

others.

On Tuesday afternoon, April 2nd, the board held a

special meeting at which it adopted a resolution termi-

nating the employment of the teachers in the class repre-

sented by appellants here. Letters were sent to such

teachers indicating that their employment was terminated

A-5

and that their offers of employment or contracts for the

1974-1975 school year were revoked or terminated.’

On April Sth the board held a hearing for a teacher

who had erroneously been excluded from all prior action

and proceeding. The teacher, through the counsel who

represented the other teachers, indicated she wished to take

the same position as the others, and was therefore dis-

charged.

Thereafter, the board began hiring replacement teachers

and school reopened on April 8, 1974. Only one of the

discharged teachers reapplied for employment and he was

rehired.

In the first cause of action in their amended complaint,

the plaintiffs-appellants, the HEA and the named teachers-

plaintiffs as class representatives, alleged that the cir-

cumstances of the hearing and discharge constituted a

deprivation of their property and liberty without due pro-

cess of law as guaranteed under the Fourteenth Amend-

*“Please be advised that the Board of Education met on April 2, 1974,

and took the following action:

“The Board found you guilty of the conduct set forth in Mr. Weih-

ing’s notice of March 29, 1974. Specifically, it found that since March

18, 1974:

“You breached your individual employment contract;

“You engaged in strike activity contrary to Wisconsin law.

“Therefore, you are advised that your employment with the Horton-

ville Community Schools, Joint School District #1, Village of Horton-

ville, et al., is hereby terminated, effective immediately. Furthermore,

this action includes the withdrawal of the offer of employment for

the 1974-75 school term, and/or termination of such tendered em-

—~y contract. Be further advised that your district-paid WPS

ospital insurance coverage wil! cease on April 30, 1974, unless you

make contrary arrangements with the insurance company. Informa-

tion regarding other fringe benefits will be forthcoming to you in the

near future.

“The Board also directed the administration to commence recruit-

ment, both from within and outside the district, for professional staff

for the balance of the 1973-74 school year and thereafter. You are

invited to apply for any teaching position if you are interested in

further employment in our district. You should contact Superintendent

Obry or a principal if you wish to so apply.”

A-6

ment of the United States Constitution and art. I of the

Wisconsin Constitution. In the third cause of action, the

appellants alleged that conduct of the board on Tuesday

afternoon, April 2nd, constituted a violation of the open

meeting law, sec. 66.77, Stats. The appellants sought, as

relief, a declaration that the board’s action was null and

void, an order that the discharge of the teachers be set

aside, an injunction proscribing the board from hiring ad-

ditional replacements, an order that the contracts of the

replacements be rescinded, an order requiring the parties

to select an impartial decisionmaker to determine whether

three was “just cause” for the discharge, and such other

relief as might be appropriate.

The trial court granted the respondent-school board’s

motion for summary judgment on the first cause of. action

and sustained its demurrer to the third. The other causes

of action stated in the amended complaint are not at issue

here

The plaintiffs appeal from the judgment and order.

BEILFUSS, J. The issues in this court are.

1. Does Wisconsin law allow the discharge of munici-

pal employees who engage in a strike?

2. Does the action by the Hortonville school board in

discharging teachers instead of obtaining a judicial order

constitute selective enforcement of the Wisconsin pro-

hibition of the right to strike, thereby denying to the

teachers their right to equal protection of the laws?

3. Does the state’s prohibition against strikes by

teachers, without provision for binding arbitration and

de novo review of reasonableness of punishment, when

such benefits are provided for other public employees, con-

A-7

stitute a violation of the equal protection clause of the

Fourteenth Amendment to the United States Constitution?

4. Were the strikers denied due process of law because

they were discharged by the Hortonville school board

which is not a neutral, impartial and detached decision-

maker?

5. Did the action taken by the Hortonville board of

education constitute a violation of the open meeting law?

The general rule is that issues not presented to the trial

court will not be considered for the first time on appeal.

Estate of Scherffius (1974), 62 Wis.2d 687, 696, 697,

215 N.W.2d 547; Resseguie v. American Mut. Liability

Ins. Co., (1971), 51 Wis.2d 92, 103, 104, 186 N.W.2d

236. With respect to constitutional issues, this court had

said it may, in its discretion consider such issues for the

first time on appeal if it is in the interest of justice to do

so and there are no unresolved factual issues. State v

Morales (1971), 51 Wis.2d 650, 654, 187 N.W.2d 841;

Bradley v. State (1967), 36 Wis.2d 345, 359, 359a, 153

N.W.2d 38, 155 N.W.2d 564. We believe, in this case, it

is in the interest of justice to consider the issues raised as

set forth above.

Does Wisconsin law allow the discharge of municipal

employees who engage in a strike?

As to all municipal employees, sec. 111.70 (4) (1).

Stats., provides:

‘Strikes prohibited. Nothing contained in this sub-

chapter shall constitute a grant of the right to strike by

any county or municipal employe and such strikes

are hereby expressly prohibited.”

As to state empolyees, sec. 111.89, Stats., provides:

“Strike prohibited. (1) Upon establishing that a strike

A-8

is in progress, the employer may at his option either seek

an injunction or file an unfair labor practice charge with

the commission under s. 111. 84 (2) (e) or both. In this

regard it shall be the responsibility of the department of

administration to decide whether to seek an injunction or

file an unfair labor practice charge. The existence of an

administrative remedy shall not constitute grounds for de-

nial of injunctive relief.

“(2) The occurrence of a strike and the participation

therein by a state employe do not affect the rights given

to the employer to deal with the strike, including:

“(a) The right to impose discipline, including dis-

charge, or suspension without pay, of any employe

participating therein;

“(b) The right to cancel the reinstatement eligibil-

ity of any employe engaging therein; and

“(c) The right of the employer to request the im-

position of fines, either against the labor organiza-

tion or the employe engaging therein, or to sue for

damages because of such strike activity.”

The appellants contend that since employers of state

employees are specifically given the right to discharge in

the event of a strike, while no similar provision applies to

municipal employees, that municipal employers are not

allowed to discharge striking employees but are restricted

to the remedy of injunction.

The respondents cite Millar v. Joint Schol Dist. (1957),

2 Wis.2d 303, 312, 86 N.W.2d 455, for the proposition

that:

“A school board has implied power to dismiss a

teacher before the expiration of his term of service

A-9

for good and sufficient cause. . . . If a teacher fails

to perform his duties under his contract, the board

may discharge him from further service.”

They further contend that sec. 111.70 (4) (1), Stats., in

no way diminishes that right. We believe they are correct

in that contention. Sec. 118.22 (2) provides:

“On or before March 15 of the school year during

which a teacher holds a contract, the board by which the

teacher is employed or an employe at the direction of the

board shall give the teacher written notice of renewal or

refusal to renew his contract for the ensuing school year.

If no such notice is given on or before March 15, the con-

tract then in force shall continue for the ensuing school

year. A teacher who receives a notice of renewal of con-

tract for the ensuing school year, or a teacher who does

not receive a notice of renewal or refusal to renew his con-

tract for the ensuing school year on or before March 15,

shall accept or reject in writing such contract not later than

the following April 15. No teacher may be employed or

dismissed except by a majority vote of the full member-

ship of the board. Nothing in this section prevents the

modification or termination of a contract by mutual

agreement of the teacher and the board. No such board

may enter into a contract of employment with a teacher

for any period of time as to which the teacher is then un-

der a contract of employment with another board.”

The reference to the fact that a teacher may be “dismissed”

clearly indicates the existence of the right to discharge.

Both Millar, supra, and Richards v. Board of Education

(1973), 58 Wis.2d 444, 460b, 206 N.W.2d 597, indicate

clearly that the term “dismiss” means to remove from em-

ployment and not to merely refuse to renew a contract.

A-10

Furthermore, the power of the board to discharge a

teacher for “just cause” is clearly preserved in the master

contract’ between HEA and the school district.

From the statutes, the cases cited, and the contract, we

conclude the school board did have the power to discharge

the teachers who engaged in the prohibited strike.

The appellants contend the action by the Hortonville

school board in discharging the teachers instead of ob-

taining a judicial order constitutes selective enforcement

of the Wisconsin prohibition of the right to strike, thereby

denying to the teachers their right to equal protection of

the laws as guaranteed by the state and federal constitu-

tions.

The appellants argue that this is the first known in-

stance in Wisconsin where striking teachers have been dis-

charged They assert that the usual procedure is for the

school board to seek an injunction, and that the deviation

from this practice in this case amounts to selective en-

forcement of the law and a denial of equal protection.

The respondents, in argument, deny this is the first in-

stance of discharge because of strike activity. They also

urge that there is an unresolved factual dispute involved,

i.e., what is the normal procedure in the case of teacher

strikes. For the purpose of this opinion, we will assume

the factual allegation of the appellants is correct.

Several factors bear on the question of whether the dis-

charge amounted to a denial of equal protection due to

selective enforcement of the law. The basic question that

must be answered in the affirmative before a denial of

’The master agreement, while contained in the record at pages 214-225,

was not part of or appended to either of the affidavits filed with re-

spect to the motion for summary judgment. However, because we

have decided to determine the issues raised upon appeal, this docu-

ment should be considered.

A-11

equal protection can be found is whether a difference

in treatment amounts to invidious discrimination. Harper

v. Virginia Board of Elections (1966), 383 U.S. 663, 666,

86 Sup. Ct. 1079, 16 L.Ed.2d 169.

Arguably at least, there were other remedies the school

board could have pursued. It could have sought an in-

junction, it could have sought fact-finding and mediation

before the Wisconsin Employment Relations Commis-

sion,* it could have continued collective bargaining or it

could have discharged the teachers for violating the

statutory prohibition against public employee strikes as

was done here. The fact the school board pursued one

of the remedies does not ipso facto mean the teachers were

denied equal protection. This is especially true in this case

because we do not have a record which reveals all the per-

tinent and relevant facts upon which the board acted What

might be a fair and reasonable response on the part of the

board might not be under a different factual background.

Further, the right to discharge here is essentially con-

tractual. Whether the master contract between the board

and the school district and the contracts between the in-

dividual school teachers and the districts are comparable

cannot be determined from the record in this case.

With one exception not material here, all of the striking

teachers were treated the same. They were all given the

same notices, all had the same opportunity to be heard,

all were discharged and all given the right to apply for

reinstatement. The record does not reveal invidious dis-

crimination and no denial of equal protection appears.

The appellants also contend that they were denied equal

protection of the law in two additional respects: First, in

4Sec. 111.70, Stats. See also, Muskego-Norway C.S.J.S.D. No. 9 v.

W.E.R.B. (1967), 35 Wis. 2d 540, 151 N.W. 2d 617.

A-12

that they are denied the right to strike, contrary to their

counterpart in the private sector; and, second, in that they

are denied certain benefits, e.g., binding arbitration, which

are accorded to other public employees, i.e., police and

fiermen.

Absent a suspect classification or a fundamental right,

neither of which are involved in this case,° this court

has held that:

“. . to declare an act of the legislature as to a clas-

sification violative of the equal-protection clause, it

is first necessary to prove that the legislature has

abused its discretion beyond a reasonable doubt.”

State ex rel. La Follette v. Reuter (1967), 36 Wis.2d 96,

111, 153 N.W.2d 49. See also, Wiener v. J. C. Penney

Co. (1974), 65 Wis.2d 139, 147, 222 N.W.2d 149. There

is a strong presumption of constitutionality which attaches

to acts of the legislature, unless the court can say that no

statement of facts can reasonably be conceived that would

sustain it. Weiner, supra, page 147; State ex rel. Hammer-

mill Paper Co. v. La Plante (1973), 58 Wis.2d 32, 46,

205 N.W.2d 784. Only if a classification is arbitrary and

has no reasonable purpose or reflects no justifiable public

policy will it be held violative of constitutional guarantees

of equal protection. Simanco, Inc. v. Department of Rev-

enue (1973), 57 Wis.2d 47, 57, 203 N.W.2d 648. In

Wiener, supra, page 147, this court reiterated five stan-

dards necessary for a proper classification:

5See Warshafsky v. The Journal Co. (1974), 63 Wis.2d 130, 216 N.W.

2d 197; United Federation of Postal Clerks v. Blount (D.C. D.C.

1971), 325 Fed. Supp. 879, affirmed (1971), 404 U.S. 802, 92 Sup.

Ct. 80, 30 L. Ed. 2d 38.

A-13

“(1) All classifications must be based upon sub-

stantial distinctions which make one class really dif-

ferent from another.

“(2) The classifications adopted must be germane

to the purpose of the law.

“(3) The classifications must not be based upon

existing circumstances only. They must not be so

constituted as to preclude additions to the numbers

included within a class.

“(4) To whatever class a law may apply, it must

apply equally to each member of thereof.

“(5) The characteristics of each class should be

so far different from those of other classes as to rea-

sonably suggest at least the propriety, having regard

to the public good, of substantially different legisla-

tion.” See also, Dane County v. McManus (1972),

55 Wis.2d 413, 423, 198 N.W.2d 77; State ex rel.

Ford Hopkins Co. v. Mayor (1937), 226 Wis. 215,

222, 276 N.W. 311.

Considering appellants’ contentions in reverse order,

they claim that teachers are denied equal protection be-

cause, unlike police and firemen, they are not accorded

binding arbitration® or other dispute settlement rights.

The different treatment accorded police and firemen is

“based upon substantial distinctions which make one class

really different from another.” Weiner, supra, page 147.

It is not difficult to find a rational basis for the legislation.

If police or firemen go on strike the imminent and imme-

diate danger to the community is so great that every rea-

sonable measure must be taken to get them back on the job

®See secs. 111.70 (4) (jm) and 111.77, Stats.

A-14

as soon as possible, or to prevent them from striking in the

first instance. The classification is not unreasonable and

is a legitimate exercise of the legislative function.

A more difficult question arises with respect to the ap-

pellants’ contention that they are denied equal protection,

vis-a-vis nonpublic employees, by the application of the

strike ban contained in sec. ‘111.70 (4) (1), Stats.

Several rationales are typically propounded in support

of no-strike laws for public employees. One relies on the

sovereignity of the governmental employee and reasons

that the government, unlike the private employee, cannot

suspend operations nor go out of business nor increase

its budgets, and therefore is entitled to expect a higher

level of devotion to service. Norwalk Teachers’ Assn. v.

Board of Education (1951), 138 Conn. 269, 83 Atl.2d

482. Another rationale is that the peculiar nature of the

government, as opposed to private employers, makes it

particularly vulnerable to the strike.

“

. . . In the private sector, union demands are

usually checked by the forces of competition and

other market pressures. Negotiators are typically

limited by such restraints as the entry of non union

competitors, the impact of foreign goods, the sub-

stitution of capital for higher-priced labor, the shift

of operations to lower-cost areas, the contracting out

of high-cost operations to other enterprises, the shut-

down of unprofitable plants and operations, the re-

design of products to meet higher costs, and finally

the managerial option to go out of business entirely.

Similar limitations are either nonexistent or very

much weaker in the public sector. While budgets and

corresponding tax levies operate in a general way to

check increases in compensation, the connection is

A

A-15

remote and scarcely applicable to particular units

of groups of strategically located public employees.

unhampered by such market restraints, a union that

can exert heavy pressure through a strike may be

able to obtain excessive wages and benefits.” Cox

and Bok, Labor Law (7th ed), pages 970, 971.

An additional rationale is that public employees have ade-

quate opportunity to achieve their aims through the legisla-

tive process. Note: The Strike and Its Alternatives in Pub-

lic Employment, 1966 Wisconsin Law Review, 549, 556.

It is also often stated that the strike ban protects the pub-

lic health, safety and welfare.

The position of the appellants is that neither these nor

any other rationales can support the validity of the strike

ban, at least with respect to them. They concede, of course,

that a strike by police or firemen may result in real, im-

mediate and irreparable harm to the community, and thus

admit that the strike ban is valid as applied to those types

of emergency services. They argue, however, that the

statute is too broad in its scope.

Many courts have considered this issue and none have

found a denial of equal protection. See: Annot. (1971),

Labor Law: Right of Public Employees to Strike or En-

gage in Work Stoppage, 37 A.L.R.3d 1147. As stated in

United Federation of Postal Clerks v. Blount, supra, page

883:

“Given the fact that there is no constitutional right

to strike, it is not irrational or arbitrary for the Gov-

ernment to condition employment on a promise not to

withhold labor collectively, and to prohibit strikes by

those in public employment, whether because of the

prerogatives of the sovereign, some sense of higher

A-16

obligation associated with public service, to assure

the continuing functioning of the Government with-

out interruption, to protect public health and safety

or for other reasons. Although plaintiff argues that

the provisions in question are unconstitutionally broad

in covering all Government employees regardless of

the type or importance of the work they do, we hold

that it makes no difference whether the jobs per-

formed by certain public employees are regarded as

‘essential’ or ‘non-essential,’ or whether similar jobs

are performed by workers in private industry who do

have the right to strike protected by statute... . The

Equal Protection Clause, however, does not forbid

all discrimination. Where fundamental rights are not

involved, a particular classification does not violate

the Equal Protection Clause if it is not ‘arbitrary’ or

‘irrational,’ i.e., ‘if any state of facts reasonably may

be conceived to justify it. McGowan v. Mary-

land, 366 U.S. 420, 426, 81 S. Ct. 1101, 1105, 6

L.Ed.2d 393 (1961)....”

We conclude there is a meaningful distinction between

governmental employees and nongovernmental employees.

The strike ban imposed on public employees is based upon

a valid classification and the legislation creating it is not

unconstitutional as a denial of equal protection. If the no-

strike ban legislatively imposed on public employees is to

be absolished or altered, it must be done by the legislature

and not the courts.

The teachers contend they were denied due process of

law because the hearings were not considered and their

discharges ordered by an impartial decisionmaker.

The Fourteenth Amendment to the United States Con-

stitution provides, inter alia, that no state shall deprive

A-17

any persons of property or liberty without due process of

law. Before it can be determined whether the appellants

were denied due process, it must be established that they

were entitled to due process of law in that they were de-

prived of their property or liberty by state action.

State action is clearly present in this case. The Horton-

ville Joint School District No. 1 is organized under the

laws of the state of Wisconsin and is a municipal employer

as defined in sec. 111.70, Stats. The school board is

charged under chs. 118 and 120 with the management

of the school district. The district, the board and their

agents are therefore extensions of the state.

With respect to the question of deprivation of property,

we refer to Board of Regents v. Roth (1972), 408 U.S. 564,

92 Sup. Ct. 2701, 33 L.Ed.2d 548, and Perry v. Sinder-

mann (1972), 408 U.S. 593, 92 Sup. Ct. 2694, 33 L.Ed.

2d 570. In Roth, the court decided that a nontenured as-

sistant professor was not entitled to procedural due pro-

cess when his one-year teaching contract was not re-

newed. The court stated:

“The Fourteenth Amendment’s procedural protec-

tion of property is a safeguard of the security of in-

terests that a person has already acquired in specific

benefits. These interests—property interests—may

take many forms.

“.. . To have a property interest in a benefit, a

person clearly must have more than an abstract need

or desire for it. He must have more than a unilateral

expectation of it. He must, instead, have a legitimate

claim of entitlement to it. It is a purpose of the an-

cient institution of property to protect those claims

upon which people rely on their daily lives, reliance

A-18

that must not be arbitrarily undermined. It is a pur-

pose of the constitutional right to a hearing to provide

an opportunity for a person to vindicate those claims.

“Property interests, of course, are not created by the

Constitution. Rather, they are created and their di-

mensions are defined by existing rules or under-

standings that secure certain benefits and that support

claims of entitlement to those benefits. . . .” Roth,

supra, pages 576, 577.

In Perry, the court added:

“A written contract with an explicit tenure pro-

vision Clearly is evidence of a formal understanding

that supports a teacher’s claim of entitlement to con-

tinued employment unless sufficient ‘cause’ is shown.

Yet absence of such an explicit contractual provision

may not always foreclose the possibility that a teach-

er has a ‘property’ interest in re-employment. For

example, the law of contracts in most, if not all, jur-

isdictions long has employed a process by which

agreements, though not formalized in writing, may

be ‘implied.’ 3 A. Corbin on Contracts, secs. 561-

572A (1960). Explicit contractual provisions may be

supplemented by other agreements implied from

‘the promisor’s words and conduct in the light of the

surrounding circumstances.’ /d., at sec. 562. And,

‘[t]he meaning of [the promisor’s] words and acts

is found by relating them to the usage of the past.’

Ibid.” Perry, supra, pages 601, 602, See also, Pe-

lisek v. Trevor State Graded School Dist. No. 7 (E.D

Wis. 1974), 371 Fed. Supp. 1064.

A-19

In Wieman v. Updegraff (1952), 344 U.S. 183, 73 Sup.

Ct. 215, 97 L.Ed. 216, the court held that professors re-

moved from office during the terms of their contracts were

entitled to due process. See also, Carpenter v. City of

Greenfield School District No. 6 (E.D. Wis. 1973), 358

Fed. Supp. 220.

In this case the appellant-teachers were discharged dur-

ing the terms of their 1973-1974 contracts and their of-

fers or contracts for employment for the 1974-1975 school

year were revoked or rescinded. This unquestionably

amounted to a deprivation of property within the intend-

ment of the due process clause.

The respondents contend that no deprivation of property

is involved because the employees, by going on strike,

abandoned whatever property interest they had in con-

tinued employment. Going on strike, the respondents ar-

gue, is the equivalent of quitting, a unilateral breach of

the employment contract which dissolves any property in-

terests for due process purposes.

It is unnecessary to reach the merits of this contention,

however, because the argument begs the question. One

of the purposes of due process in this context is to deter-

mine whether the alleged conduct did in fact take place.

To say that the performance of certain acts forecloses the

requirement of a hearing to determine whether the acts

were in fact performed is to engage in circular reasoning.

The tea hers were deprived of a constitutional property

right in this case.

Another question to be considered is whether the teach-

ers were deprived of liberty. The United States Supreme

Court in Roth, supra, pages 573, 574, stated:

A-20

“There might be cases in which a State refused to

re-employ a person under such circumstances that

interésts in liberty would be implicated. But this is not

such a case.

“The State, in declining to rehire the respondent,

did not make any charge against him that might ser-

iously damage his standing and associations in his

community. It did not base the nonrenewal of his

contract on a charge, for example, that he had been

guilty of dishonesty, or immorality. Had it done so,

this would be a different case. For ‘[wJhere a per-

son’s good name, reputation, honor, or integrity is at

stake because of what the government is doing to

him, notice and an opportunity to be heard are es-

sential.’ Wisconsin v. Constantineau, 400 U.S. 433.

437. Wieman v. Updegraff, 344 U.S. 183, 191...

In such a case, due process would accord an oppor-

tunity to refute the charge before University officials.

In the present case, however, there is no suggestion

whatever that the respondent’s ‘good name, reputa-

tion, honor, or integrity’ is at stake.

“Similarly, there is no suggestion that the State, in

declining to re-employ the respondent. imposed on

him a stigma or other disability that foreclosed his

freedom to take advantage of other employment op-

portunities. The State, for example, did not invoke

any regulations to bar the respondent from all other

public employment in state universities. Had it done

so, this, again, would be a different case. For ‘[t]o

be deprived not only of present government em-

ployment but of future opportunity for it certainly

is no small injury. . . .. Joint Anti-Fascist Refugee

A-21

Committee v. McGrath [341 U.S. 123]... at 185

(Jackson, J., concurring)...”

In Roth, there was no stated reason for the nontenured

teacher not being rehired. In the case at bar, however,

the stated reasons were two: (1) The teachers had breached

their contracts, and (2) they had engaged in a strike con-

trary to Wisconsin law. It is apparent that such charges

could detrimentally affect an individual’s reputation in

the labor market and thereby significantly undermine his

opportunities for re-employment Due process requires

a notice and hearing and an opportunity for the teachers

to clear themselves of such charges.

Having determined that the teachers were entitled to due

process, the more difficult question of what process is due

emerges. The often-quoted Cafeteria & Restaurant

Workers Union v. McElroy (1961), 367 U.S. 886, 895,

81 Sup. Ct. 1743, 6 L.Ed.2d 1230, provides:

“_. . consideration of what procedures due process

may require under any given set of circumstances

must begin with a determination of the precise nature

of the government function involved as well as of the

private interest that has been affected by governmen-

tal action”

Thus a balancing test must be established to weigh the

interest of the school district in summary determination

against the interests of the teachers in their continued em-

ployment. Only in light of that balancing test can it be de-

termined whether the procedures afforded the teachers

failed to satisfy the constitutional requirements of due

process.

With respect to those procedures, the appellants allege

their constitutional inadequacy in only one respect, i.¢.,

A-22

the lack of an impartial decisionmaker.* The requirement

of an impartial decisionmaker is well established as an

essential component of procedural due process. See Gibson

v. Berryhill (1973), 411 U.S. 564, 578, 93 Sup. Ct. 1689,

36 L.Ed.2d 488; Ward v. Village of Monroeville (1972),

409 U.S. 57, 60, 93 Sup. Ct. 80, 34 L.Ed.2d 267; Morris-

sey v. Brewer (1972), 408 U.S. 471, 485, 92 Sup. Ct.

2593, 33 L.Ed.2d 484; Goldberg v. Kelly (1970), 397

U.S. 254, 271, 90 Sup. Ct. 1011, 25 L.Ed.2d 287. In

Morrissey, involving the due process required to be af-

forded a parolee prior to revocation, the court stated:

“In our view, due process requires that after the

arrest, the determination that reasonable ground ex-

ists for revocation of parole should be made by some-

one not directly involved in the case. It would be un-

fair to assume that the supervising parole officer

does not conduct an interview with the parolee to

confront him with the reasons for revocation before

he recommends an arrest. It would also be unfair

to assume that the parole officer bears hostility against

the parolee that destroys his neutrality; realistically

the failure of the parolee is in a sense a failure for

his supervising officer. However, we need make no

assumptions one way or the other to conclude that

"The appellants do make brief reference to the alleged lack of timely

notice, the failure of the board to present evidence against them, and

the preclusion of the teachers from questioning members of the board

or offering affirmative evidence. They do not argue these points, how-

ever, and the only issue raised regarding due process goes to the al-

leged lack of an impartial decisionmaker.

With respect to the lack of timely notice, it should be noted that

although the longest notice received was four days, spanning a week-

end, and the shortest was received on the day of the hearing, counsel

for the teachers was asked at the hearing how much additional time

he needed to prepare. Counsel replied that he would make an offer of

proof and then let the board know if he needed more time. The offer

was made but counsel never requested additional time thereafter.

A-23

there should be an uninvolved person to make this

preliminary evaluation of the basis for believing the

conditions of parole have been violated. The officer

directly involved in making recommendations can-

not always have complete objectivity in evaluating

them. Goldberg v. Kelly found it unnecessary to im-

pugn the motives of the case worker to find a need for

an independent decisionmaker to examine the initial

decision.” Morrissey, supra, pages 485, 486.

In Ward, supra, a case involving a situation where a city

mayor was empowered to sit as judge to try ordinance

violation cases, the fines from which constituted a signi-

ficant part of the city’s income, the court stated that the test

was whether:

“|. [the] situation is one ‘which would offer a

possible temptation to the average man as a judge

to forget the burden of proof required to convict the

defendant, or which might lead him not to hold the

balance nice, clear and true between the State and

the accused....’.... ” Ward, supra, page 60.

It is important to note that procedural due process is

not limited to the factual determination as to whether an

individual did or did not engage in the particular con-

duct. It extends as well to the action taken by the state

once that conduct is established. As stated in Morrissey,

supra, page 488:

“This [due process] hearing must be the basis for

more than determining probable cause; it must lead

to a final evaluation of any contested relevant facts

and consideration of whether the facts as determined

A-24

warrant revocation. The parolee must have an op-

portunity to be heard and to show, if he can, that he

did not violate the conditions, or, if he did, that cir-

cumstances in mitigation suggest that violation does

not warrant revocation.”

Therefore it would seem essential, even in cases of un-

disputed or stipulated facts, that an impartial decision-

maker be charged with the responsibility of determining

what action shall be taken on the basis of those facts. “The

principle of fair play is an important factor in a consid-

eration of due process of law.” General Electric Co. v.

Wisconsin Employment Relations Board (1958), 3 Wis.

2d 227, 241, 88 N.W.2d 691; Durkin v. Board of Police

& Fire Comm. (1970), 48 Wis. 112, 122, 180 N.W.2d 1.

The background giving rise to the ultimate facts in this

case reveals a situation not at all conducive to detachment

and impartiality on the part of the school board. The board

was the collective bargaining agent for the school district

and thus was engaged in the collective bargaining process

with the teachers’ representative, the HEA. It is not dif-

ficult to imagine the frustration on the part of the board

members when negotiations broke down, agreement could

not be reached and the employees resorted to concerted

activity. This is not to suggest, of course, that the board

members were anything but dedicated public servants,

trying to provide the district with quality education while

still keeping within its limited budget. They were, however,

not uninvolved in the events which precipitated decisions

they were required to make. The decision to discharge

was possibly a convenient alternative which would elimi-

nate their labor problems in one fell swoop. We conclude

that the board was not an impartial decisionmaker in a

A-25

constitutional sense and that the appellants were denied

due process of law.

Respondents rely heavily on two cases, Arnett v. Ken-

nedy (1974), 416 U.S. 134, 94 Sup. Ct. 1633, 40 L.Ed.2d

15, and Johnson v. Board of Regents (W.D. Wis. 1974),

377 Fed. Supp. 227, to support their contention that there

is no due process violation involved in this case. In Arnett,

a federal employee was discharged by his immediate su-

perior because the employee allegedly made disparaging

remarks about such superior. The court held that what-

ever expectancy of continued employment, and hence

property right, the employee had in his job was created by

the Lloyd-LaFollette Act (Act of Aug. 24, 1912, c. 389,

sec. 6, 37 Stat. 555. now 5 U.S.C., sec. 7501), which pro-

vides in pertinent part at page 150:

“ ‘(NJo person in the classified civil service of the

United States shall be removed therefrom except for

such cause as will promote the efficiency of said

service and for reasons given in writing, and the per-

son whose removal is sought shall have notice of the

same and of any charges preferred against him, and

be furnished with a copy thereof, and also be allowed

a reasonable time for personally answering the same

in writing; and affidavits in support thereof; but no

examination of witnesses nor any trial or hearing shall

be required except in the discretion of the officer

making the removal;.. .’”

The three justices who constituted the plurality in Arnett

stated with respect to due process:

“. , the very section of the statute which granted

him that right, a right which had previously existed

A-26

only by virtue of administrative regulation, expressly

provided also for the procedure by which ‘cause’

was to be determined, and expressly omitted the

procedural guarantees which appellee insists are

mandated by the Constitution. Only by bifurcating

the very sentence of the Act of Congress which con-

ferred upon appellee the right not to be removed save

for cause could it be said that he had an expectancy

of that substantive right without the procedural

limitations which Congress attached to it. . . .”

Arnett, supra, page 152.

The plurality thus concluded that extent of the property

right was limited by the act itself, and hence due pro-

cess was not required. There is no analogous situation

here.

In Johnson, the chancellors of the various campuses

in the state university system were faced with budget cuts,

and thus had to determine how to effectuate them. The

plaintiff-professor was discharged by his chancellor as a

result of such situation. With respect to the plaintiff's

claim that the chancellor was an impartial decisionmaker,

the court stated at page 240:

“The initial decision obviously had to be made by

someone and the chancellor was a wholly appropriate

choice.”

There is nothing in that case, however, to suggest a po-

tential for bias or impartiality as in the case at bar and

thus it is inapposite.

The respondents and amici curiae argue that the exis-

tence of postdetermination review procedures ameliorate

any impartiality in the original determination. An analysis

A-27

of the two procedures suggested, however, reveals their

inadequacy. The first is the common-law writ of certiorari.

The scope of review by certiorari is limited to determining:

“ . .§. . (1) Whether the board kept within its

jurisdiction; (2) whether it proceeded on correct the-

ory of law; (3) whether its action was arbitrary, op-

pressive, 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.’ ” State ex rel. Ball v. Mc-

Phee (1959), 6 Wis.2d 190, 199, 94 N.W.2d 711.

See also State v. Goulette (1974), 65 Wis.2d 207,

222 N.W.2d 622.

The second suggested procedure—review by the Wis-

consin Employment Relations Commission under sec.

111.70 (4), Stats. Such procedure applies only in the

case of employee prohibited practices, however. Neither

of these alternatives provide for review to determine

whether another course of action such as mediation, in-

junction, continued collective bargaining or arbitration

would have been a more reasonable response on the part

of the decisionmaker. In light of that fact, it is difficult

to see how either review by common-law certiorari or by

the WERC® can replace an impartial decisionmaker in

the first instance.

When the teachers went on strike, the school board was

undoubtedly faced with a situation that needed imme-

diate attention. Clearly, it had a duty to keep the schools

open and staff them with competent teachers. If the schools

were closed so that the statutory minimum number of

®But see: Muskego-Norway C.S.J.S.D. No. 9 v. W.E.R.B., supra.

——EaI 2.2.0; eS err ees |

A-28

school days was not reached, monetary state school aid

would have been denied or jeopardized leading to a severe

budget crisis. True, it could have sought an injunction or

gone to the WERC for some relief, but neither the courts

nor the WERC could hire or fire teachers. Sec. 118.22

(2), Stats., provides in part:

“No teacher may be employed or dismissed except

by a majority vote of the full membership of the board.”

Assuming the school board did recognize, under this

factual background, that it was not an impartial decision-

maker or hearing officer as constitutionally contemplated,

where was it to go to obtain an authorized impartial hear-

ing officer or decisionmaker? The answer is that the law as

it presently exists does not provide for one. Legislation

could establish a necessary forum and procedures directly

or by delegation to a proper department of government,

but it does not.

When an adequate remedy or forum does not exist to

resolve disputes or provide due process, the courts, under

the Wisconsin Constitution,® can fashion an adequate

remedy.

The plaintiffs-appellants contend that part of sec.

118.22 (2), Stats., which gives the school the exclusive

right to hire and fire, is unconstitutional in that it denies

due process. If the statute can be construed or procedures

*Sec. 9, art. I, Wis. Constitution, states: “Every person is entitled to a

certain remedy in the laws for all injuries, or wrongs which he may

receive in his person, property, or character; he ought to obtain jus-

tice freely, and without being obliged to purchase it, completely and

without denial, promptly and without delay, conformably to the laws.”

See also: State ex rel. Wickham v. Nygaard (1915), 159 Wis. 396, 150

N.W. 513: Wisconsin Telephone Co. v. Public Service Comm. (1939),

232 Wis. 274, 287 N.W. 122, 287 N.W. 593; Huebner v. State (1967),

33 Wis. 2d 505, 147 N.W. 2d 646.

ee ee en

ne ee oa nine a

A-29

provided to meet a valid constitutional objection, it should

be done.

We believe the school board should make the initial

determination as to the hiring or firing of one or many

teachers. In those situations where due process is required,

namely where the employed teacher’s property right or

liberty is at stake—notice, a hearing and a statement of

reasons should be given. As much control as possible

should be left with the school board to set policy and man-

age the school.

In those situations where an employed teacher is dis-

charged or otherwise disciplined and due process is re-

quired, and the school board is in an adversary position,

we hereby provide and direct that the dissatisfied teacher

or teachers can, upon petition, obtain a de novo determin-

ation of all issues in any court of record in the county

where the school district or a part of it is located. The is-

sues shall be determined by the court without a jury, un-

less the judge determines to call a jury and receive an ad-

visory verdict. The court shall resolve any factual dis-

putes and provide for a reasonable disposition.

The trial of the contested issues shall be given a trial

date preference consistent with the reasonable adminis-

tration of the court’s calendar.

This method of disposition is not ideal because a court

may be required to make public policy decisions that are

better left to a legislative or administrative body. However,

because a fundamental constitutional protection is in-

volved and no adequate forum exists, we fashion this

remedy. It will be available to teachers” until such time

This remedy is limited to public school teachers because we deal here

with a specific school teacher statute, sec. 118.22 (2).

A-30

and only until such time as the legislature provides a

means to establish a forum that will meet the requirements

of due process.

This procedure just announced requires that we re-

verse the trial court’s summary judgment and that the

matter be remanded to the trial court with the right of the

parties to amend their pleadings so as to bring the neces-

sary issues before the trial court.

The appellants also assert that the action of the board

of education, wherein it decided to discharge the striking

teachers, was in violation of the open meeting law.

This issue was raised in the appellants’ third cause of

action in the amended complaint filed in the trial court.

Paragraph 15 of the amended complaint provides:

“On April 2, 1974, the Board, its administrators

and agents, met and held a special meeting at which

they considered, decided and acted to terminate the

employments of the plaintiffs and other teachers simi-

larly situated. No notice of said special meeting was

ever given to the plaintiffs, or any other teachers simi-

larly situated nor to the public.”

The open meeting law, sec. 66.77, Stats., provided in

part, prior to June 15, 1974:

“(2) To implement and insure the public policy

herein expressed, all meetings of all state and local

governing and administrative bodies, boards, com-

missions, committees and agencies, including munici-

pal and quasi-municipal corporations, unless other-

wise expressly provided by law, shall be publicly held

and open to all citizens at all times, except as herein-

after provided. No formal action of any kind, ex-

A-31

cept as provided in sub. (3), shall be introduced, de-

liberated upon or adopted at any closed session or

closed meeting of any such body, or at any recon-

vened open session during the same calendar day

following a closed session. No adjournment of a pub-

lic meeting into a closed session shall be made without

public announcement of the general nature of the busi-

ness to be considered at such closed session, and no

other business shall be taken up at such closed session.

“(3) Nothing herein contained shall prevent exe-

cutive or closed sessions for the purposes of:

“(a) Deliberating after judicial or quasi-judicial

trial or hearing;

“(b) Considering employment, dismissal, promo-

tion, demotion, compensation, licensing or disci-

pline of any public employe or person licensed by a

state board or commission or the investigation of

charges against such person, unless an open meeting

is requested by the employe or person charged, in-

vestigated or otherwise under discussion.”

The trial court sustained a demurrer to the third cause

of action of the complaint, concluding that the meeting

of the board fell within exceptions (3) (a) and (b) of the

statute. With respect to (3) (b), the court noted that the

complaint failed to allege that any employee had re-

quested an open meeting.

The appellants’ argument centers around the failure of

the board to give any notice of the meeting. They contend

that exception (3) (a) does not apply because delibera-

tions after a “judicial or quasi-judicial trial or hearing”

necessarily amounts to an “adjournment of a public meet-

A-32

ing into a closed session,” and therefore requires a public

announcement or notice. No authority is cited for that

proposition and we believe the language of the statute

permits no such interpretation.

With respect to sub. (3) (b), the appellants contend that

they are foreclosed from requesting an open meeting be-

cause notice that the meeting was to be held was never

given. First, it must be noted that the statute (prior to

June 15, 1974) did not require that notice be given. More

importantly, however, paragraph 5 of the amended com-

plaint, which is specifically incorporated by reference into

the third cause of action, clearly states that the board

“notified the employees that the Board was considering

taking action against their then current teaching con-

tracts.” In light of such allegation, which is borne out by

other parts of the record, the appellants’ contention that

they had no opportunity to request an open meeting is

without foundation. We conclude the demurrer to the

third cause of action was properly sustained.

By the Court.—Judgment reversed and cause remanded

for further proceedings not inconsistent with this opinion.

Order affirmed. No costs to be taxed.

A-33

NO. 635

August Term, 1974

STATE OF WISCONSIN: IN SUPREME COURT

HORTONVILLE EDUCATION ASSN. et al.,

Appellants,

Vv.

HORTONVILLE JOINT SCHOOL DISTRICT NO. 1,

et al.,

Respondents.

HANLEY, J. (Concurring in part; dissenting in part).

I concur with the majority’s conclusion that the demur-

rer to the third cause of action relating to the alleged vio-

lation of the open meeting law was properly sustained.

I respectfully dissent to the majority’s ruling reversing

the trial court’s granting of summary judgment on the

first cause of action.

Sec. 111.70 (4) (1), Stats., provides as follows:

“Strikes prohibited. Nothing contained in this

subchapter shall constitute a grant of the right to

strike by any county or municipal employe and such

strikes are hereby expressly prohibited.”

The above provision means exactly what it states. There-

fore, the action of the teachers, acting in concert, in re-

fusing to report for work cannot be sanctioned as a strike

either by this court, the school district, the teachers’ union

or the teachers. The action of the teachers constitutes a

unilateral breach of employment.

A-34

On April 2, 1974 the board held a special meeting at

which it adopted a resolution terminating the employment

of the teachers who refused to report for work. Such action

was an acceptance of the breach of contract by the teachers.

With that acceptance, all employment relations between the

board and the teachers terminated. Upon that termination

any action on the part of the board relative to discharge

was superfluous. There is no issue to be tried.

I would affirm the judgment.

I am authorized to state that Mr. Justice CONNOR

HANSEN joins in this concurrence-dissent.

No. 635.

August Term, 1974.

STATE OF WISCONSIN: IN SUPREME COURT

HORTONVILLE EDUCATION ASSN. et al.,

Appellants,

v.

HORTONVILLE JOINT SCHOOL DISTRICT NO. a

et al.,

Respondents.

. ROBERT W. HANSEN, J. (concurring). School boards

in this state are directed by statute to contract for the

services of qualified teachers in their schools.’ School

teachers in this state are employees of such school boards

1Sec. 118.21 (1), Stats., providing: “The

writing with qualified B ne oy a a school board shall contract in

A-35

and stand “in a contract relation.”” Except as otherwise

provided by statute,* or constitutionally required,“ the

entire relationship between a school board and a school

teacher derives from the contract between them.”

The school board in Hortonville had entered into such

contractual relationship with each of its school teacher

employees for the school year, 1973-74. Each such per-

sonal service contract fixed the salary, determined the

services to be performed and set the term or period of

employment. Each such contract incorporated into it “the

last collective bargaining agreement,” the 1972-73 master

contract, between the Hortonville school board and the

2State ex rel. O'Neil v. Blied (1925), 188 Wis. 442, 446, 206 N.W. 213,

holding: “One engaged in teaching in this state and whose services

are to be paid for in whole or in part by the state school fund... .

stands in a contract relation. . . .”

3See: Muskego-Norway C.S.J.8.D. No. 9 v. W.E.R.B. (1967), 35 Wis.

2d 540, 557, 151 N.W. 2d 617, holding sec. 111.70 (3) (a), Stats., to

prohibit municipal employers, including school districts, from “*‘1. In-

terfering with, restraining or coercing any municipal employe in the

exercise of the rights provided in sub. 2.

“(2) Encouraging or discouraging membership in any labor or-

ganization, employe agency, committee, association or representation

plan by discrimination in regard to hiring, tenure or other terms or

conditions of employment.’ ”

See also: Sec. 119.42, Stats., establishing teacher tenure or perma-

nent appointment after three years of continuous teaching service, but

applying only to cities of the first class. As to status under tenure law,

see: State ex rel. Thompson v. School Directors (1923), 179 Wis. 284,

288. 191 N.W. 746, citing State ex rel Murphy v. Board of Trustees

(1918), 168 Wis. 238, 169 N.W. 567.

4See: Alston v. School Board of City of Nerwalk (4th Cir. 1940), 112

Fed. 2d 992, holding that the right of a negro teacher to declaratory

or injunctive relief against the practice of a school board in fixing

salaries for negro teachers at a lower scale than for white teachers

is not waived, or otherwise precluded, by the fact ghat the negro teach-

er has entered into a contract with the school board for the current

vear to perform teaching services. (Certiorari denied in 311 U.S. 693,

61 Sup. Ct. 75, 85 L.Ed. 448.)

5Board of Education of South Milwaukee v. State ex rel. Reed (1898),

100 Wis. 455, 462, 76 N.W. 351, holding: “. . . . the relations and ob-

ligations between the relator . . . and the high school board of said

district were purely and strictly of a contractual character. . . -

A-36

Hortonville education association.* When the Hortonville

teachers went on strike, they were teaching under con-

tract, not after their contracts had expired.’ When they

failed to appear at the school to perform their duties un-

der the contract, it became the duty of the school board to

conduct an “inquiry into the question of the failure of a

teacher to perform his contract obligation” and in case

of such breach “to take such steps as may be necessary to

carry out the purposes of the school.”®

Facing such duty to “. . . take such steps as may be nec-

essary” to reopen the school, the Hortonville school board

acted. It did not go to court (as appellants now claim it

should have) to seek an injunction, not only declaring the

strike illegal’ but also ordering the teachers back to the

classroom under the contract. It could have chosen this

route, but was not required so to elect. Neither did the

school board prefer charges of misconduct against the

“It is Further Agreed, that this contract incorporates herein by refer-

ence, to have the same effect as if made a part thereof of the last

collective bargaining agreement entered into by and between the Hor-

tonville Education Association, and said School Board, dated May

8, 1972, and is subject to all terms and conditions of such collective

bargaining agreement. . . .” (Individual contract, March 12, 1973.)

7As to “minimal procedural safeguards” of sec. 118.22, Stats., applying

to teachers not rehired, see: Richards v. Board cf Education (1973),

58 Wis. 2d 444, 458, 206 N.W. 2d 597.

SCurkeet v. Joint School District (1914), 159 Wis. 149, 152, 149 N.W.

708, this court holding: “. . . School boards have thereby [sec. 441,

Stats. 1913] enjoined upon them very extensive duties in maintaining

the common schools and in administering the school affairs. Such du-

ties embrace that of inquiry into the question of the failure of a

teacher to perform his contract obligation as a teacher, and if they

find that a teacher has breached his contract it is their duty to take

such steps as may be necessary to carry out the purposes of the

school, and if a teacher has failed to perform his duties under his

contract they can discharge him from further service... .”

*See: Sec. 111.70 (4) (1), Stats. (upheld as constitutionally valid, applied

to teachers, by majority opinion here), provides: “Strikes prohibited.

Nothing contained in this subchapter shall constitute a grant of the

right to strike by any county or municipal employe and such strikes

are hereby expressly prohibited.”

A-37

teachers, seeking their “discharge for cause” under the

contract.’® It could have taken this approach, but it is clear

that it did not bring charges of misconduct under the con-

tract. Instead, what the Hortonville school toard did was

to rescind or terminate the personal service contracts as to

all teachers who elected to remain on strike (The dissent-

ing-in-part opinion terms this “. . . an acceptance of the

breach of contract by the teachers,” which is another way

of saying the same things.)

The communication sent each teacher by the board

stated that the board had been informed by its superin-

tendent of schools that, “You have breached your indivi-

dual employment contract; You have engaged in an un-

lawful strike contrary to Wisconsin law.”"" The communi-

cation set a time and place for hearings as to whether the

individual teacher had breached the employment con-

tract, and noted that possible board action, if the facts es-

tablished such breach, included “. . . termination of your

employment contract.”"* A subsequent resolution. adopted

by the school board, terminated the employment relation-

ship as to teachers who had been thus notified or who had

waived notice of their “. . . alleged breach of employment

contract and participation in an unlawful strike.”"* To the

%0 vy. Joint School District (1881), 51 Wis. 554, 557, 8 N.W. 398,

‘his pod. holding: “. . . We think the school board. . . have the

power to close the school and discharge the teacher for just cause. .. . :

As to scope of judicial review of such discharge for just cause, see.

Clark v. Blochowiak (1942), 241 Wis. 236, 239, 5 N.W.2d 772, ho'd-

ing, where board of vocational education discharged for cause a su-

pervisor of its dental clinic after a hearing, that, on certiorari to re-

view the action taken by the board, “. . . the only matter the —

could properly consider was whether on the evidence properly receiv

by the board the charges against the plaintiff were sustained.” —

‘Letter from Roger Weihing, President, for the Board of Education to

individual teachers, March 29, 1974.

12

re Adopted by the Board of Education. April 2. 1974.

A-38

writer it appears clear that the school board, by thus ter-

minating the employer and employee relationship on the

ground of a major breach of such contract by the striking

teachers, was rescinding the contracts of personal ser-

vice as to all teachers who did not return to their teaching

assignments.

A contract, including a personal service contract,"

remains in force in accordance with its terms, unless one

party to it “. . . acts inconsistently with the duty imposed

upon him by the contract, which amounts to an abandon-

ment....”° However. it is not every breach of a contract

consisting of failure to perform exactly that entitles the

other party to rescission. Our court has held that, be

fore a party not in default may be entitled to relief of re-

scission, there must be “so serious a breach of the contract

by the other party as to destroy the essential objects of the

contract.”"* Or, as another court has phrased it, the fail-

ure of performance, in order to constitute a ground for

rescission, must be total, “such as to defeat the object of

the contract or render it unattainable.”"” The claim of

right to terminate and rescind its contracts with its teach-

ers on ground of breach of contract was properly assert-

“68 Am. Jur. 2d, Schools, sec. 143, page 475, stating: “The principles

governing contracts generally are applicable to contracts for the em-

ployment of teachers. Thus, such a contract is considered one for

personal services and, where entered into for a definite term. is an

entire contract for the period covered.”

*17 Am. Jur. 2d, Contracts, sec. 482, page 951.

*6Hoffmann v. Danielson (1947), 251 Wis. 34, 38, 27 N.W. 2d 759, this

court holding: “. . . Before a party not in default may be entitled to

the relief of rescission, there must be so serious a breach of the con-

tract by the other party as to destroy the essential objets of the con-

weet....

“Ellison, Son & Co. v. Flat Top Grocery Co. (1911), 69 W. Va. 380,

387, 71 S.E. 391, stating the rule to be: “ ‘Generally the failure of per-

formance, in order to constitute a ground for rescission, must be

taval; such as to defeat the object of the contract or render it unat-

tainable. . . .’" Quoting 24 Am. & Eng. Ency. L 644.

A-39

able by the Hortonville school board. But the determina-

tion of whether the claimed breach of contract constituted

ground for such rescission was here for a court to decide.

With the school board action found to be a rescission

of contract, based on claim of teacher breach of contract,

it follows that either party to the contract had right of re-

course to the courts for a judicial determination of whether

the breach warranted the rescission."* With the multiple

cancellations of personal service contracts involved in an

area of vital public concern, in the case before us the legal

remedy is obviously inadequate, and the aid of a court

of equity is required.”* It follows that the school board here

might have sought by application to a court of equity a

judicial affirmation of its action in rescinding the em-

ployment contracts on ground of serious breach of con-

tract by the teachers. Certainly the teachers, all or any one

of them. are also entitled to challenge in a court of equity

the action taken by the board. In either event, the issue

for the court to determine is whether the breach of their

contracts by the teachers under the circumstances,” was

such as to warrant the school board’s action in terminating

their employment and rescinding their contracts. The test

is the Hoffman Case test." In the posture of this case, the

18 _ 2d. Contracts, sec. 503, page 979, stating: “Although con-

Be gh terminate as a matter of course on a breach, they may

be terminable therefor. . . .”

19See: . Jur. 2d, Contracts, sec. 485, page 955. 7

lg my Contracts, sec. 501, page 977, stating: No hard _~

fast rule exists as to the right of rescission for cause; the a me y

depends on the circumstances of the particular case. vo a sO:

17 Am. Jur. 2d, Contracts, sec. 503, page 980, stating: ”. “aS -

over a party seeking to rescind must show that he was ag ony “

fault in relation to the obligation which he claims the other —

failed to perform. . . .” See also: As to violations of —- an .

not to justify rescission: E. L. Husting Co. v. Coca Cola Co, ( ,

205 Wis. 356, 237 N.W. 85, 238 N.W. 626.

21Hoffman vy. Danielson, supra, footnote 16.

A-40

teaehers have instituted equity proceedings, but not for

the purpose above set forth. However, with an opportunity

to amend such petition or pleadings granted, the proceed-

ings instituted can be amended to present this issue and

permit a judicial determination as to whether the teacher

conduct, under the circumstances, justified the school

board action.

Also on appeal to this court is the challenge to an order

of the county court of Outagamie county, the Honorable

R. Thomas Cane, presiding, which included orders that

the school board submit a list of discharged teachers whom

the board “would offer positions back” for the balance

of the 1973-74 school year, that the board offer striking

teachers positions for the balance of the 1973-74 school

“. .. If and when vacancies arose,” and that striking teach-

ers offered a vacancy for the remainder of the 1973-74

school year accept such offer. The basic issue on appeal

appears to be the jurisdiction of the county court, sitting

in equity, to issue the order. The board initiated the pro-

ceedings involved, seeking a court order limiting picket-

ing activity. Without comment on the issues raised on such

appeal, pro or con, the writer considers it unfortunate that

such appeal (No. 133, August Term, 1974) was not con-

solidated with the appeal here, so that all aspects of judi-

cial proceedings involving the Hortonville teachers’ strike

could have, at one time and in one opinion, been consid-

ered and determined.

On this appeal, however, applying the law to the facts,

the writer would: (1) Concur in the majority holding that

the no strike by county or municipal employees’ statute,

sec. 111.70 (4) (1), Stats. is constitutionally valid; (2)

concur in the majority holding that the open meeting law

was not here violated; and (3) concur in the majority hold-

A-41

ing for reversal and remand but would limit the scope and

purpose of such remand, with appellants here granted

leave to amend their petition within thirty days. the peti-

tion to be amended to raise and present for judicial de-

termination the issue of whether the acts of the teachers,

under these circumstances, justified the school board in

rescinding the employment contracts and terminating em-

ployment.

No. 635

August Term, 1974

STATE OF WISCONSIN: IN SUPREME COURT

HORTONVILLE EDUCATION ASSN., et al.,

Appellants,

v.

HORTONVILLE JOINT SCHOOL DISTRICT No. 1,

et al.,

Respondents.

PER CURIAM (on motions for rehearing). The last

sentence on page 482, continuing on page 483 of 66 Wis.

2d 469 is revised as follows:

“Whether the master contract between the board

and the Hortonville Education Association and the

contracts between the individual school teachers and

the board are comparable to contracts involved in

other cases where striking teachers were disciplined

or discharged cannot be determined from the record

in this case.”

Motions for rehearing are denied without costs.

A-42

APPENDIX I!

DECISION ON DEFENDANTS’ MOTION FOR SUM-

MARY JUDGMENT TO FIRST CAUSE OF ACTION

NATURE OF PROCEEDINGS:

The plaintiffs filed their original verified complaint al-

leging a single cause of action on April 5, 1974, to which

the defendants responded by way of a verified answer filed

April 24, 1974. Subsequently on May 31, 1974, the plain-

tiffs upon leave of this Court and pursuant to a verbal

agreement of counsel for all parties filed a verified amended

complaint alleging four separate causes of action. Prior to

the expiration of forty days after joinder of issue by the

defendants’ answer to the original complaint, this Court by

an order dated June 3, 1974, extended the time for moving

for summary judgment pursuant to Secs. 269.45 and 270.-

635, Stats., inasmuch as this Court construed Snowberry v.

Zellmer (1964), 22 Wis.2nd 356; 126 N.W.2nd 26, to re-

quire a motion for summary judgment to be made within

forty days of joinder of issue by the original p!eadings. The

defendants answered the first cause of action alleged in

the amended complaint and moved thereafter for summary

judgment as to the first cause of action within the enlarged

time allotted by the Court.

DECISION:

The motion for summary judgment now before this

Court pertains to a cause of action based on a theory of

various due process violations arising out of a strike by the

plaintiff teachers of the Hortonville Joint School District

No. 1. The strike commenced March 18, 1974, and on

April 2, 1974, the Hortonvilie Board of Education termin-

A-43

ated the employment of the 88 members of the plaintiff

class. Certain members of the plaintiff class have returned

to work pursuant to an order of another Court, which order

is now in the appeal process. However, those members of

the plaintiff class who have returned to work have contin-

ued as members of the plaintiff class in the present action.

The plaintiffs in the present case are the Hortonville Ed-

ucation Association which, prior to March 18, 1974, rep-

resented all teachers under contract with the Hortonville

Joint School No. 1, and six of the terminated teachers who

are alleged to be “representative of all teachers employed by

the District whose employments the Board has acted to ter-

minate.” The requisite allegations are set forth in the plain-

tiffs’ amended complaint so as to enable this Court to deem

the present matter a class action as provided for in Sec.

60.12 Stats.

One of the defendants is the Hortonville Joint School

District No. 1 which had prior to Apri] 2, 1974, employed

the plaintiff class; the remaining defendants are members

and officers of the Hortonville Board of Education in their

official and individual capacities as well as three admin-

istrators of the Hortonville Joint School District No. 1 in

their official and individual capacities.

Termination of employment by the Hortonville Board

of Education was applicable to the 1973-74 school year

contracts with the individual members of the plaintiff class

and the 1974-75 school year contracts which had been ten-

dered by the Hortonville Board of Education to the individ-

ual members of the plaintiff class. There exists no master

contract between the Hortonville Education Association

and the Hortonville Joint School District No. 1 for either

the 1973-74 and 1974-75 school years.

A-44

In order to determine if the defendants have set forth

such facts as shall show their denials or defenses to be suf-

ficient to defeat the plaintiffs’ first cause of action under the

statutory criteria of Sec. 270.635, Stats. it appears ap-

propriate in this instance to first consider the plaintiffs’

theory of various procedural due process violations as set

forth in the plaintiffs’ amended complaint. This Court, as

did the Court in American Mutual Liability Insurance

Company vy. St. Paul Fire and Marine Insurance Company,

(1970), 48 Wis. 2nd 305; 179 N.W. 2nd 864, finds it

necessary to review in part the amended complaint in order

to determine whether the defendants’ affidavit in support

of their motion for summary judgment contains the required

evidentiary facts so as to entitle the defendants to summary

judgment. However, the amended complaint as well as the

defendants’ answer, as pleadings, are not effectual as fact-

ual proof and cannot perform the requisite function of affi-

davits. Leszczynski v. Surges (1966), 30 Wis. 2nd 534; 141

N.W.2d 261. Only two affidavits were filed herein. Mr.

Roger Weihing, a member and president of the Board

of Education of the Hortonville School District No. 1, filed

an affidavit in support of the defendants’ motion for sum-

mary judgment. Mr. Michael Wisnoski, a member of the

plaintiff class and president of the Hortonville Education

Association, filed an affidavit on behalf of the plaintiffs in

Opposition to the motion for summary judgment.

Paragraph 5 of the amended complaint is the first ma-

terial paragraph containing allegations relating to proced-

ural due process. That paragraph, in its entirety, alleges:

“5. Immediately prior to, during and immediately

following the weekend of March 30 and 31, 1975,

the individually-named plaintiffs, and all other teach-

ers represented by the Association, were served no-

A le A oe ad * beens

A-45

tices that the Board had scheduled hearings for each

and every one of them, at twenty-minute intervals,

commencing Monday Morning, April 1, 1974,

through and until late on Wednesday evening, April

3, 1974. These notices notified the employees that the

Board was considering taking action against their

then current teaching contracts. Said notices failed to

afford the plaintiffs, and others who received similar

notices, a fair or adequate opportunity to consult with

an attorney or to prepare for a hearing or to defend

against the reasons that the Board might consider for

the termination of their employment.”

The affidavit of Roger Weihing, submitted on behalf

of the defendants states in paragraphs 8 and 9 essentially

that during a special School Board meeting held on March

29, 1974, it was decided to schedule disciplinary hearings

for each individual member of the plaintiff class then en-

gaged in a work stoppage and that a notice of the dis-

ciplinary hearings were delivered to the Outagamie Coun-

ty Sheriff's Department on March 29, 1974, for service on

each individual teacher. Exhibit “B” attached to Mr.

Weihing’s affidavit is a copy of the notice of the individual

disciplinary hearings. Also attached to that same affidavit

and identified as exhibit “C” is a compilation of the dates

the disciplinary hearing notices were served on the indivi-

dual members of the plaintiff class and the date and times

of the scheduled disciplinary hearings. It appears from

exhibit “C” that all the teachers subject to a disciplinary

hearing here served notice of such hearing on or before

April 2, 1974, with the exception of Mrs. Nancy Miller.

In all, eleven teachers were served notices, including

the day of service, four days before their scheduled hear-

A-46

ing, fifty-one teachers three days prior to their scheduled

hearing, twenty-two teachers two days prior to their sched-

uled hearing, three teachers one day prior to their sched-

uled hearing and one teacher received her notice the day

of her scheduled hearing. It should be noted that the first

notices were served on March 29, 1974, which was a Fri-

day (twenty-three in number) with the balance being

served on the next day, a Saturday (forty-four in number)

and both Monday (twenty in number) and Tuesday (one

in number) of the following week. As to the actual con-

tents of the notice of disciplinary hearings, the dates the

notices were served and the dates of the scheduled dis-

ciplinary hearings no factual controversy exists

However, with respect to the aforesaid notices and their

service on the teachers it is the plaintiffs’ conclusion as

stated in the amended complaint that such notice did not

give them adequate opportunity to:

a) consult an attorney

b) prepare for their scheduled hearings

c) defend against reasons the School Board

might consider for termination of employment.

By means of Mr. Weihing’s affidavit, in particular para-

graphs 9 and 10 thereof the defendants have set forth facts

relating to the conduct and statements of plaintiffs’ counsel

at the April 1, 1974, hearing before the Hortonville Board

of Education. That meeting was attended by all members

of the plaintiff class in mass rather than individually as

scheduled with the exception of five teachers who remain

members of the paintiff class. Among those facts are the

plaintiffs’ appearance before the Hortonville Board of Ed-

ucation with an attorney, the objection of the plaintiffs’

A-47

attorney to the insufficiency of the notice without a specified

request as to the additional length of time needed for pre-

paration or a request for an adjournment and the partici-

pation of plaintiffs’ counsel in the proceedings. On the basis

of those primary facts the defendants urge that it can rea-

sonably be inferred that the notice in question was timely

and adequate and, if not, any objection thereto was waived

by failure to specifically request an adjournment of a

specified length.

With respect to the adequacy and timeliness of the no-

tice of the disciplinary hearings this Court deems there to

be no controverted facts. Only the inferences to be drawn

from those facts upon which legal conclusions can be based

are in dispute. This is not to say, however, that such in-

ferences are reasonable.

Paragraph 6 of the plaintiffs’ amended complaint relates

to the actual procedure utilized at the April 1. 1974, ap-

pearance of all but five members of the plaintiff class be-

fore the Hortonville Board of Education. In its entirety

paragraph 6 recites:

“6. On Monday, April 1, 1974, the plaintiffs and

other similarly situated teachers appeared before the

Board and objected to the lack of fair and adequate

notice of and opportunity to prepare for the scheduled

hearings, and objected to the Board acting as the de-

cision-maker in their cases, because of its involve-

ment ir the very circumstances which gave rise

to the Board’s consideration of the termination of their

employments. Plaintiffs and other teachers requested

the opportunity to present evidence in their defense,

in mitigation of reasons the Board might consider

grounds for the termination of their employments.

At the beginning of said appearance before the Board,

A-48

the plaintiffs and the other teachers further re-

quested the opportunity to examine adversary man-

agement personnel relative to the charges against

them. All of the objections and requests made by the

plaintiffs and by other teachers were denied by the

Board, which acted on the advice of its attorney. The

Board’s attorney acted both as counsel to the Board

and as prosecutor, presenting the charges and evi-

dence against the plaintiffs. No evidence was adduced

at the hearings against any of the plaintiffs or other

teachers who appeared before the Board.”

Scrutinizing Mr. Weihing’s affidavit submitted on behalf

of the defendants with respect to that portion pertaining

to the April 1, 1974, proceedings before the Board of Ed-

ucation, there are the following pertinent facts:

a) counsel for the plaintiffs did object to the suf-

ficiency and adequacy of the disciplinary hearing no-

tices

b) counsel for the plaintiffs was denied the op-

portunity to question various Hortonville Board of

Education members adversely

c) counsel for the plaintiffs did make an offer

of proof

d) counsel for the plaintiffs instructed the mem-

bers of the plaintiff class not to answer questions ad-

dressed to them individually and the plaintiff class did

not individually respond to any questions by the Board

of Education

e) counsel for the plaintiff advised the Board of

Education that all members of the plaintiff class were

ne ee ee ny en nae eee

A-49

relying on the Hortonville Education Association to

respond on their behalf and that individual hearings

were not necessary.

The evidentiary facts contained in the plaintiffs’ affi-

davit in opposition to the motion for summary judgment

do not controvert the facts related above as they appear

in the defendants’ supporting affidavit. The plaintiffs’ affi-

davit does, however, add the additional facts that counsel

for the plaintiffs objected to the Hortonville Board of Ed-

ucation acting as decision-maker and its counsel acting in

a dual capacity as adviser and prosecutor. Neither the

affidavit submitted by the defendants or the plaintiffs act-

ually state whether evidence was received at the April 1,

1974, hearing beyond the offer of proof made by plain-

tiffs’ counsel.

It should be noted that paragraph 10 of the affidavit

of Michael Wisnoski submitted on behalf of the plaintiffs

stated that the Board of Education refused to permit evi-

dence to be presented on behalf of Mr. Wisnoski by way

of a defense and in mitigation of any conduct on his part.

As to whether that statement refers to evidence in addition

to the offer of proof made by plaintiffs’ counsel and the

request to adversely examine various Board of Education

members is unclear unless read in conjunction with para-

graph 11 of that same affidavit. Paragraph 11 states that

Mr. Wisnoski authorized the Hortonville Education Asso-

ciation to respond on his behalf and he personally chose

to follow his counsel’s advice not to respond individually.

The only reasonable inference from the apparently con-

tradictory statements of fact is that paragraph 10 of Mr.

Wisnoski’s affidavit in conjunction with the remainder of

his affidavit, and in particular paragraph 11, refers to the

A-50

offer of proof and the attempt to adversely examine the

Board of Education members on behalf of all teachers

reprsented by the Hortonville Education Association, not

any additional attempt to present evidence on behalf of

Mr. Wisnoski individually. Also, it should be noted that

Mr. Wisnoski’s individual disciplinary hearing had been

scheduled as shown by exhibit “C” not for April Ist but

for 9:20 a.m. on April 2, 1974.

The material facts as to the procedure of what the

plaintiff class turned into a mass disciplinary hearing on

April 1, 1974, are not controverted. It is only the inferences

to be drawn from those facts and various statements made

by counsel for both the plaintiff and the defendants that

are disputed.

Considering next paragraph 7 of the plaintiffs’ amended

complaint it is alleged:

“7. By letters dated April 2, 1974, the plaintiffs’

and, on information and belief, almost all other teach-

ers employed by the District, were notified by the

Board that the Board had acted to terminate their

employment, both under the current teaching con-

tracts, and under the teaching contracts they had

signed for the 1974-75 school year. By the same let-

ters, the plaintiffs and other teachers were invited in-

dividually to reapply for employment with the Dis-

trict. At no time have the plaintiffs, or any other teach-

ers similarly situated, ever been informed of the evid-

dentiary basis for the Board’s decision to terminate

their employment both this year and for the 1974-75

school year.”

A copy of the termination notice was not attached to

the affidavit submitted on behalf of the defendants in sup-

port of their motion for summary judgment. However, par-

A-51

agraph 16 of the defendant affidavit specifically refers to

and identifies the termination notice in question and there-

by incorporated by reference exhibit 2 introduced at a

prior evidentiary hearing conducted by this Court. The no-

tice of termination provided in pertinent part:

“The Board found you guilty of the conduct set forth

in Mr. Weihing’s notice of March 29, 1974. Specif-

ically it is found that since March 18, 1974;

You breached your individual employment con-

tract: You engaged in strike activity contrary to Wis-

consin law.

The Board further found that these breaches of

duty in law constitute good and sufficient cause for

the immediate termination of your teaching contract.

Therefore, you are advised that your employment

with the Hortonville Community Schools, Joint School

District No. 1, Village of Hortonville, et al., is hereby

terminated, effective immediately. Furthermore, this

action includes the withdrawal of the offer of employ-

ment for the 1974-75 school term, and/or termination

of such tendered employment contract.”

The defendants’ affidavit further states that the afore-

mentioned notice of termination was sent by certified mail

to each terminated member of the plaintiff class. Nothing

in the affidavit of Mr. W” -~cki submitted on behalf of the

plaintiffs controverts the contents or mailing of the notice of

termination. According to the plaintiffs’ affidavit, on April

3, 1974, he received a copy of the Board of Education’s

resolution to terminate the plaintiff class. Additionally, Mr.

Wisnoski states in his affidavit in paragraph 15 that he has

personally never been informed of the evidentiary basis for

the Board of Education’s conclusion that he has breached

A-52

his contract or engaged in an unlawful strike, nor that he

was ever informed of the evidentiary basis for the decision

to terminate his employment for the 1973-74 and 1974-75

school years.

Once again it is apparent that as to the pertinent material

facts relating to alleged due process violations as set forth

in paragraph 7 of the plaintiffs’ amended complaint there

is no dispute other than as to the inferences to be drawn

from the facts.

Reviewing next paragraph 8 of the plaintiffs’ amended

complaint it is alleged therein:

“8. The Association, which represents the plaintiffs

and all other teachers employed by the district, was

not informed of the hearings scheduled by and be-

fore the Board for April 1, 2, and 3, 1974. The Asso-

ciation also was not given any advance notification of

the Board’s decision to terminate the employment of

the plaintiffs and other teachers represented by the

Association.”

There is no reference contained in the defendants’ affi-

davit that Mr. Weihing addressed a notice to the Horton-

ville Education Association itself with respect to the

scheduled disciplinary hearing of April 1, 2 and 3, 1974,

and the decision to terminate the employment of the plain-

tiff class. In paragraph 7 of the plaintiffs’ opposing affi-

davit it is stated that no advance notice was given to the

Hortonville Education Association as an organization with

respect to the disciplinary hearings. In paragraph 13 of the

plaintiffs’ affidavit it is further stated that notice of the

Board of Education decision to terminate the members of

the plaintiff class was received post facto.

A-53

Concerning the question of advance notice to the Hor-

tonville Education Association there appears in the affi-

davits no controverted facts as to the lack of advance notice

of the disciplinary hearings and the decision to terminate

the employment of the plaintiff class.

Summarizing the plaintiffs’ allegation of specific proce-

dural due process violations they are in substance in brief:

a) Timeliness and adequacy of the disciplinary

notices.

b) Board of Education sitting as decision-maker

at the disciplinary hearing.

c) Prohibition of adverse examination of various

Board of Education members at a disciplinary hear-

ing.

d) Counsel for the Board of Education simultan-

eously acting as adviser and prosecutor.

e) No evidence against the plaintiff adduced at

the disciplinary hearing.

f) Lack of notice of evidentiary basis for conclud-

ing there was a breach of contract and an unlaw-

ful strike nor notice of evidentiary basis for termina-

tion of employment of the plaintiff class.

g) Lack of advance notice to the Hortonville

Education Association concerning the disciplinary

hearings and the terminatin of employment of the

plaintiff class.

On the basis of the foregoing alleged violations of proce-

dural due process the plaintiffs formulate their theory of the

first cause of action in their amended complaint. The plain-

tiffs allege that all of the aforesaid due process violations

A-54

were done under color of State law, intentionally, malic-

iously, capriciously and arbitrarily, and in bad faith and

as part of a conspiracy to deny the members of the plaintiff

class their procedural due process rights under the 14th

Amendment to the United States Constitution and Art-

icle 1 of the Wisconsin Constitution. As a result, the plain-

tiffs allege, inter alia, that they have effectively been denied

their property interest in continued employment with the

Hortonville Joint School District No. 1 as well as their lib-

erty in securing employment in the teaching profession.

Such deprivation of procedural due process the plaintiffs

further allege has resulted in irreparable damage to their

persons, reputations and financial interests.

As stated by the Court in American Mutual liability

Insurance Company y. the St. Paul Fire and Marine In-

surance Company, supra, at page 312, a motion for sum-

mary judgment, when invoked by a defendant, is used

on the assumption that even though a complaint states a

cause of action the cause is factually unsupportable. Inas-

much as the Court had deemed there to be no dispute as

to the material facts involved in this case, if the defendants’

affidavit in support of the motion for summary judgment

contained no additional facts this Court could deem the

defendants to have attempted to use a motion for summary

judgment as a substitute for a demurrer.

However, there remains one fact in the defendants’ affi-

davit by Mr. Weihing which is uncontroverted by the plain-

tiffs’ affidavit in opposition to the motion for summary

judgment. That fact is set forth in paragraph 2 of Mr.

Weihing’s affidavit which reads;

“That commencing Monday, March 18, 1974, the

teaching employees then employed by said school dis-

a rT T

A-55

trict engaged in an unlawful strike against the de-

fendant school district; .. .”

Reference to the strike being unlawful is, of course, a

conclusion and not a fact and as such, is inappropriate in

an affidavit requiring evidentiary facts. Sec. 270.635, Stats.

continuing through the remainder of Mr. Weihing’s affi-

davit it is clearly stated that the strike by the members of

the plaintiff class continued up to and through April

2, 1974, the date of the employment discharges. Thus,

it is uncontroverted that the underlying fact that a strike

existed commencing March 18, 1974, establishes the

framework within which this Court can consider the con-

cept of due process. For as the Court stated in Goldberg v.

Kelly, 397 U.S. 254, 263, 90 S. Ct. 1011, 1018, 25 L. Ed.

2nd 287 (1970), in quoting an earlier case:

“ |. . consideration of what procedures due process

may require under any given set of circumstances must

begin with a determination of the precise nature of the

government function involved as well as the private

interest that has been affected by governmental ac-

tion.”

EMPLOYER -EMPLOYEE RELATIONSHIP SUBSE-

QUENT TO MARCH 18, 1974

The individual members of the plaintiff class were prior

to March 18, 1974, municipal employees as defined in

Sec. 11.70(1) (b), Stats., and the Hortonville Joint

School District No. 1 was at all times pertinent herein a

municipal employer as defined in Sec. 11.70(1)(a), Stats.

Thus at all times relevant the members of the plaintiff class

were prohibited from engaging in a strike by virtue of Sec.

11.70 (4) (1) which provides:

A-56

“Nothing contained in this subschapter shall consti-

tute a grant of the right to strike by any county or

municipal employee and such strikes are hereby ex-

pressly prohibited.” |

It is urged by the defendants that this Court equate the

terms “strike” and “quit” thereby alleviating any constitu-

tional duty on their part to grant the plaintiff class due

process. This State has not adopted that position with re-

spect to strikes in the public employment sector nor have

the defendants cited authority from other jurisdiction on

that point. In the private employment sector the Wisconsin

rule is that a strike is a cessation of work on the part of

strikers and does not in and of itself constitute a termination

of the employer-employee relationship; it is a subsequent

discharge which severs the employer-employee relation-

ship. Marathon Electric Manufacturing Corporation v.

Industrial Commission (1955) 269 Wis. 394; 69 N.W.

2nd 573. Fredericks v. Industrial Commission (1958) 4

Wis.2nd 519, 91 N.W.2d 93. In fact, it is a frequent prac-

tice in this State for a municipal employer to obtain a court

injunction when confronted with a strike. Such a procedure

is based on the existence of an employer-employee rela-

tionship. While no longer valid law, Sec. 111.70(7), Stats.,

(void since September 1, 1973) referred to “employe” and

“employer” is a public employment strike situation where-

in the legislature prescribed the penalty for continuing to

engage in a strike after a court injunction was issued. In

their brief the defendants have made reference to obtain-

ing a Court order enjoining the strike as one of the options

available to them which they need not have nor did they

exercise. This Court can see a grave consequence to the

general public by equating the terms “strike” and “quit”

A-57

when one considers police, fire and sanitation personnel

striking in metropolitan areas. Operations would not only

be at a standstill but would be hampered long after com-

mencement of a strike. I find no basis in law nor in public

policy that compels construing a prohibited public em-

ployment strike as in and of itself terminating the munici-

pal employer-employee relationship.

DUE PROCESS CONCEPT OF PROPERTY AND LIA-

BILITY

As employees of the Hortonville Joint School District

No. ‘1 it must be next determined if the members of the

plaintiff class were entitled to a due process hearing. The

State action involved is, of course, the discharge by the

school district which is created and controlled by State law

and State agencies. The property interest of the plaintiffs

does not arrive by means of statutory provision because

Chapter 118 of the Wisconsin Statutes does not provide for

tenure for teachers employed in a school operating and

lying in a county having a population less than 500,000.

Section 118.21, Stats., does, however, require individual

contracts to be executed between individual teachers and

school boards. In addition, Sec. 118.22, Stats., establishes

the mechanism for renewal or refusal to renew such indi-

vidual contracts, but no procedure for discharge is estab-

lished by statute. Sec. 118.22, Stats., further requires that

notice of renewal or refusal to renew individual contracts

must be given on or before March 15 of each year. Al-

though the plaintiff class was engaged in a prohibited strike

when discharged, the members of the plaintiff class retained

an interest in continued employment. Perry v. Sinderman,

408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 570 (1972) and

Board of Regents of State College v. Roth, 408 U.S. 564,

A-58

92 S. Ct. 2701, 33 L. Ed. 548 (1972) involved nonrenew-

al of untenured teachers who had one year contracts. Al-

though the Court in Roth, supra, held the teacher not

to be entitled to due process because he had no interest or

entitlement to future employment, the Court stated:

“To have a property interest in a benefit, a person

clearly must have more than an abstract need or de-

sire for it. He must have more than a unilateral ex-

pectation of it. He must, instead, have a legitimate

claim of entitlement to it. It is a purpose of the ancient

institution of property to protect those claims upon

which people rely in their daily lives, reliance that

must not be arbitraily undermined. It is a purpose of

the constitutional right to a hearing to provide an

opportunity for a person to indicate those claims.

“Property interests, of course, are not created by

the constitution. Rather they are created and their

dimensions are defined by existing rules or understand-

ings 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.” (408 U.S. 577, 92 S. Ct. 2709)

In Perry, supra, the Court did find a denial of due pro-

cess stating:

“A person’s interest in a benefit is a ‘property’ interest

for due process purposes if there are such rules

Or mutually explicit understandings that support his

claim of entitlement to the benefit and that he may

invoke at a hearing.” (408 U.S. 601, 92 S. Ct. 2699)

A summary dismissal of an untenured teacher not under

formal contract without a hearing or inquiry was contrary

A-59

to due process on the basis of an implied promise of

continued employment. Connell v. Higgenbotham (1971)

403 U.S. 207, 91 S. Ct. 1772, 29 L. Ed. 418.

Certainly the plaintiff teachers relied on their employ-

ment with the defendant Hortonville Joint School District

No. 1. Prior to discharge the plaintiff teachers were en-

titled to their jobs for the remainder of the 1973-74 school

year with the valid expectation of continued employment

for the 1974-75 school year. Such objective expectation of

continued employment could in part be founded in

the statutory dictates of Secs. 118.21 and 118.22 Stats.,

with respect to the mandatory existence of individual

teacher contracts and non-renewal procedures for those

contracts. In addition to their existing individual contracts

for the school year 1973-74, the plaintiff teachers

had been tendered contracts for the 1974-75 school year.

Thus this Court deems the members of the plaintiff class

to have the requisite property interest, that is, expectation

of continued employment with the defendant Hortonville

Joint School District No. 1 so as to entitle them to a due

process hearing.

The Court in Roth, supra, also addressed itself to the

issue of deprivation of liberty of a result of a stigma at-

tached stemming from charges against an individual

wherein it is stated:

“[W]here a person’s good name, reputation, hon-

or or integrity is at stake because of what the govern-

ment is doing to him, notice and an opportunity to

be heard are essential.” ((citations omitted; 408 US.

573, 92 S. Ct. 2707)

In the instant case the charges asserted against the plain-

tiff teachers were that they had breached their individual

A-60

contracts and engaged in an unlawful strike contrary to

Wisconsin law. While those charges do not bear the same

stigma as would charges of immorality or dishonesty, they

do constitute charges that in all likelihood would dimin-

ish the plaintiff teachers’ prospective employment oppor-

tunities. Thus this Court also deems there to be a signi-

ficant potential deprivation of liberty because of the nature

of the charge so as to entitle the plaintiff class to a due

process hearing.

DUE PROCESS PROCEDURES

Having been entitled to a due process hearing and having

been granted a hearing it must next be determined if the

hearing granted the plaintiff teachers was constitutionally

anticeptic within the framework of due process. This Court

has previously found no controverted facts to exist as to

the hearing procedures utilized by the defendants. The con-

cept of due process is not static nor are its ramifications

identical in every situation. The Court in Arnett v. Ken-

nedy US. 94 S. Ct. 1633, 1645, L. Ed. 2nd

(197—-) notes:

“The types of ‘liberty’ and ‘property’ protected by the

Due Process Clause vary widely, and what may be

required under the clause in dealing with one set of

interests which it protects may not be required in

dealing with another set of interests.

‘The very nature of due process negates any

concept of inflexible procedures universally ap-

plicable to every imaginable situation.’ ” (ci-

tation omitted)

Thus the principals of due process in the instant case

must be tempered by the underlying facts as presented in

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the affidavits filed in support of and in opposition to the

motion for summary judgment. The factual setting involves

a strike by the members of the plaintiff class who con-

stituted all but a few teachers then under contract with the

Hortonville Joint School District No. 1. The effect of the

strike which commenced March 18, 1974, was to complete-

ly bring the operations of the school in that district to an

immediate and complete halt. By means of substitute teach-

ers the schools resumed operations sporadically after

March 25, 1974, until April 2, 1974, when the Board of

Education voted to terminate the employment of the plain-

tiff class. After April 8, 1974, the schools were again op-

ened permanently with the employment of “replacement”

teachers, It is within the framework of the foregoing facts

that this Court must determine, if it can do so as a matter

of law, whether the plaintiff class was accorded due process.

It is undisputed that a letter dated March 23, 1974, was

sent to each member of the plaintiff class by the super-

intendent of the Hortonville Joint School District No. 1 ad-

vising that the strike was contrary to Sec. 111.70, Stats.,

and further that: “The School Board can not and will not

condone unlawful activity under this statute. ” The letter, a

copy of which has been identified as exhibit “A” and at-

tached to the defendants’ affidavit herein concluded by

stating: “We regret having to issue this letter, but wanted

to make certain that all teachers of the Hortonville School

District are fully informed that under State law, teachers’

strikes are expressly prohibited.”

Next, the record pertinent to the motion for summary

judment states that the members of the plaintiff class were

served a notice of disciplinary hearing between March 29

and April 1974. Exhibit “B” attached to the defendants’

A-62

affidavit in support of the motion for summary judgment

accomplished the following purposes:

a) disclosed the precise charge made against the

individual teacher—since March 18, 1974, the ex-

istence of a breach of the individual employment con-

tract and engagement in an unlawful strike contrary

to Wisconsin law

b) identified who made the charge—Superinten-

dent Obry

~ ¢) advised of possible disciplinary action—ter-

mination of employment contract

d) established specified date, time and place of

hearing

e) informed individual teachers of opportunity to

present any statement or evidence relevant to the

alleged conduct.

The teachers named as plaintiffs in this case and who

allege themselves to be representative of the entire class

of teachers were served notice not less than two days nor

more than three days prior to their scheduled hearing

time. Hence the crucial issue with respect to notice is whe-

ther such notice under the conditions related above were

adequate and timely. In Goldberg, supra, the Court held

a due process hearing essentially in terminating welfare

benefits and stated therein:

“The fundamental requisite of due process of law is

the opportunity to be heard. (citations omitted) The

hearing must be at a meaningful time and in a mean-

ingful manner. (citation omitted) In the present con-

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text the principals require that a recipient have timely

and adequate notice detailing the reasons for a pro-

posed termination, and an effective opportunity to de-

fend by confronting any adverse witnesses and by

presenting his own arguments and evidence orally.

(397 U.S. 267, 268, 90 S. Ct. 1020)

Considering the due process requirements in the case of

teacher dismissed during the school year upon a two day

notice of hearing and after an oral statement of reasons

for a suspension commencing four days prior to the notice

of hearing, the Court in Ahern v. Board of Education of

School District of Grand Island, 456 F. 2nd 399, 403

(8th Cir. 1972) stated:

“

. . She might have been notified with greater pre-

cision of the basis for her suspension and dismissal,

and the time between the notice and the hearing

might have been greater, and the school board might

have detailed its decision in a formal writing, none of

these ideal conditions are prerequisties to a finding

that a hearing has been granted which comports with

accepted notions of procedural due process. A fund-

amental requirement of due process is the opportunity

to be heard at a meaningful time and in a meaning-

ful manner.” (citation omitted)

Applying the foregoing due process standard as set

forth in Goldberg, supra, and Arnett, supra, which were

drawn from earlier U.S. Supreme Court decisions cited in

Ahern, supra, to the case at bar the undisputed facts show

an adequate and timely notice to have been given to the

plaintiff class under the then existing condition of forced

school closings as a result of the prohibited strike. The

A-64

notice provided by exhibit “B” attached to the defendants’

affidavit herein unequivocally stated the precise nature of

the charge, its source, the possible consequences as well as

the time and manner in which the members of the plaintiff

class could refute the charge. Counsel for both parties cited

numerous cases involving various fact situation in which

notice of a specific duration was deemed constitutionally

appropriate. Those cases, however, deal with areas of law

most dissimilar to the area of employer-employee relation-

ship in a prohibited strike setting such as the present case.

What this Court deems to be adequate and timely notice

as a matter of law in the present case is done in the con-

text of the nature of the charge. The plaintiff class either

was on strike in violation of Sec. 111.70(4)(1), Stats., or

it was not on strike. If the fact was that a strike was in

existence as set forth in the defendants’ affidavit herein,

then there could be no defense to the charge for Sec. 111.-

70(4)(1) expressly prohibits strikes in the public employ-

ment sector. As this Court has previously held in a ruling

on a request by the plaintiffs for temporary injunctive re-

lief, Wisconsin does not recognize that strikes in the public

employment sector are permissible where justified or pro-

voked. If the State law prohibiting public employment

strikes was not so express or provided exceptions to the

strike prohibition this Court could not readily deem the

notice of disciplinary hearing to be timely and adequate

as a matter of law. Had the plaintiff class been charged

additionally with an indefinite allegation such as mis-

conduct or inefficiency, then the notice in question might

very well not be adequate or timely within the concept of

due process. Inasmuch as there can be no legal defense to

the charge of striking in violation of Sec. 111.70(4)(1) of

the Wisconsin Statutes this Court cannot foresee the need

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of a notice of longer duration in order to defend against

such charge. Simply, the plaintiff class either was or was

not on strike.

As noted earlier in this decision there is no controversy

in the fact that the Hortonville Board of Education sat

as the decision maker, that the plaintiffs were prohibited

from adversely examining various members of the Board

of Education and that counsel for the Board of Education

acted in the dual capacity of adviser and prosecutor. As

a matter of law these factors do not constitute a deprivation

of due process.

Numerous U.S. Supreme Court decisions do require the

decision-maker in a due process setting to be impartial.

But again due process must be viewed within the frame-

work of the setting of the present case. Sec. 118.22, Stats.,

provides in pertinent part:

“No teacher may be employed or dismissed except by

a majority vote by a full membership of the board.”

Thus no one but the Board of Education could by State

law make the decision which ultimately was made to dis-

charge the teachers. Then too, the charge of striking in

violation of State Statute was the sole charge before the

Board of Education; this is not a situation similiar to char-

ges of misconduct of inefficiency where it would be neces-

sary for the decision-maker to judge the credibility of

witnesses and weigh the evidence. The uncontroverted fact

in the situation is that a strike existed and therefore the

degree of impartiality which may have been required in

other settings was not necessary to adjudicate the single

fact involved in this case. In that connection it must be

noted further that the plaintiff class has not claimed to

A-66

have been discharged for any constitutionally impermis-

sible reason.

With respect to the denial of the opportunity to adversely

examine various members of the Hortonville Board of Ed-

ucation it must first be pointed out that it was Super-

intendent Marvin Obry and not any member of the Board

of Education: who charged the plaintiffs with striking.

In a due process setting it is necessary that there be af-

forded an opportunity to confront and cross-examine

adverse witnesses. Goldberg, supra; Greene v. McElroy,

360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2nd 1377 (1959).

The members of the Hortonville Board of Education on the

uncontroverted facts were not adverse witnesses. The pur-

pose of the plaintiffs’ attempt to adversely examine the

board members was stated at the April 1, 1974, hearing

which was reported and the transcript thereof incorporated

in the defense affidavit in support of the motion for

summary judgment. Plaintiffs’ counsel at that hearing was

asked to indicate the nature of the evidence he wished to

present and he responded in this fashion:

“Yes, it goes to bargaining here, and I have some

questions of some of the Board members.” (p.28 of

transcript)

Thereafter plaintiffs’ counsel made an offer of proof con-

fined solely to the bargaining issues. Clearly, the purpose

of adversely examining the board members was not directed

to the charge of striking tut to facts involving negotiations

on a variety of issues in the labor dispute; the purpose

was to justify the strike which this Court has deemed leg-

ally impossible. The denial of adverse examination of var-

ious board members in this context was proper.

A-67

Considering the dual capacity of the Board of Educa-

tion’s counsel as adviser and prosecutor this Court finds no

such constitutional prohibition. The citations presented to

this Court by the plaintiffs deal with economic or per-

sonal confliciting interests of the decision maker. In this

situation the capacities of adviser and prosecutor are not

constitutionally incompatible.

Also uncontroverted are the contents of the transcript

of the April 1, 1974, hearing and the termination notice

both of which were incorporated by reference in the de-

fendants’ affidavit in support of the motion for summary

judgment. The transcript of the April 1, 1974, hearing con-

tains the following statement of plaintiffs’ counsel:

“We have already indicated, everybody got the same

form, and they are all charged with the same thing.

They have consulted and conferred amoung themsel-

ves and concurred that they have done or not done

the same things, all of which would be within the

knowledge of the management. .. .” (P. 22 of trans-

cript, emphasis added)

The plaintiff class whose members had individual hearings

scheduled for the morning of April 1, 1974, had their hear-

ings called. Their attorney who was present advised the

Board of Education that no individual member of the

plaintiff class would answer any question or participate on

an individual basis. Thereafter all members of the plain-

tiff class then represented by counsel on an individual basis,

eighty-two in number, advised the Board through coun-

sel that they desired one mass hearing instead of indi-

vidual hearings as had been scheduled; further they advised

through counsel that they would not respond to any ques-

tions put to them by the Board on an individual basis. The

A-68

same procedure was followed on a subsequent date for

members of the plaintiff class not represented by counsel

on April 1, 1974.

In a statement to the Board at the April 1, 1974, hearing

plaintiffs’ counsel advised that the eighty-two individuals

he then represented discussed the only inference the Board

stated it would draw from the plaintiffs’ refusal to answer

questions individually, namely, that the plaintiffs were

“engaged in a work stoppage.” (P. 24 of transcript)

Plaintiffs’ counsel only objected to any legal conclusions

being drawn from such factual inference. Whereupon the

Board of Education rested and the plaintiffs as a body at-

tempted to adversely examine some members of the

Board and made an offer of proof as was discussed above

in connection with collective bargaining issues.

Also discussed earlier in this decision was the contenis

of the notice of termination dated April 2, 1974. The no-

tice of termination in brief, informed the plaintiff class

that they had been found guilty of the conduct charged

in the notice of hearing dated March 29, 1974, namely,

having since March 18, 1974, breached their individual em-

ployment contracts and engaging in strike activity contrary

to Wisconsin law.

The purpose of disclosing the evidentiary basis in a due

process setting was stated in Green v. McElroy, supra:

“Certain principles have remained relatively im-

mutable in our jurisprudence. One of these is that

where governmental action seriously injures an in-

dividual, and the reasonableness of the action depends

on fact findings, the evidence used to prove the gov-

ernment’s case must be disclosed to the individual so

A-69

that he has an opportunity to show that it is untrue.

(emphasis added) (360 U.S. 496, 79 S. Ct. 1413)

In the instant situation the plaintiff class knew the Board

of Education had before it the information of Superinten-

dent Obry that the teachers were on strike as noted in the

notice for disciplinary hearings dated March 29, 1974. Al-

so the plaintiff class knew, by means of a letter sent to

them under the date of March 23, 1974, a copy of which

was marked exhibit “A” and is attached to the defendants’

affidavit in support of the motion for summary judgment,

that the Board of Education had personal knowledge of the

existing strike. As stated by plaintiffs’ counsel at the April

1, 1974, hearing referring to the plaintiff class:

“.. . they have done or not done the same things,

all of which would be within the knowledge of the

management... .” (P. 22 of transcript)

Thus in the present setting it would be superfluous for any-

one to state on the record that the plaintiff class was en-

gaged in a strike. The plaintiff class was warned that their

refusal to answer questions would result in an inference

that they were “engaged in a work stoppage” in violation

of their individual employment contracts and in violation

of State law. Subsequently, the April 2, 1974, termination

notice advised the plaintiff class that the members were

found guilty of the conduct alleged in the notice of dis-

ciplinary hearing, that is, striking in violation of their in-

dividual employment contracts and State law. The applic-

able constitutional test is not what was the evidence ad-

duced at the hearing or detailed in the termination notice,

but rather was the basis of the Board of Education’s case

sufficiently disclosed so that the plaintiff class could show

the evidence to be untrue.

A-70

The plaintiff class was sufficiently informed of the

charges and their source so as to have a meaningful oppor-

tunity to defend themselves and decide if they had been

discharged for constitutionally impermissible reasons.

There are no other reasonable inferences or conclusions to

be drawn from the uncontroverted facts. Therefore this

Court finds the evidence considered by the Board as dis-

closed to the plaintiffs was sufficient to accord them due

process as a matter of law in this particular setting.

With respect to lack of prior notice to the Hortonville

Education Association in any of the procedures utilized by

the Board of Education this Court finds no duty to afford

the Hortonville Education Association with due process in-

asmuch as the contracts involved were those of individual

teachers who were individually given notice and individually

provided an opportunity for an individual hearing on their

individual participation in the strike. As a practical mat-

ter, the Hortonville Education Association membership

constituted the plaintiff class and the Association did ap-

pear at the April 1, 1974, disciplinary hearings. The in-

terests of property and liberty involved here were those

of the individual teachers, not the Hortonville Education

Association. If the Hortonville Education Association was

entitled to due process for considerations other than due

process, remedies in another forum are available.

Perhaps the most volitable issue in this entire factual set-

ting is the allegation that the defendants conspired to deny

the plaintiff class of due process. However, this Court hav-

ing found no due process violations to exist within the con-

text of this motion for summary judgment, the Court deems

it unnecessary to discuss this issue further.

A-71

SUMMARY

Upon consideration of the defendants’ affidavit in sup-

port of the motion for summary judgment together with

the attached and incorporated documents this Court deems

the defendants to have made a prima facie case.

After: consideration of the plaintiffs’ affidavit in opposi-

tion to the motion for summary judgment the Court

deems that no material controverted facts exist.

There being no evidentiary facts in the affidavits from

which reasonable but different inferences could be drawn,

this Court can only conclude that although the plaintiffs

have stated a cause of action such cause of action is fact-

ually unsupportable.

In addition, this Court finds as a matter of law:

1. The strike which commenced March 18, 1974,

did not per se sever the relationship of employer-em-

ployee between the plaintiff teachers the defendant

Hortonville Joint School No. 1;

2. The plaintiff teachers in spite of a strike in

violation of Sec. 111.70(4) (1), Stats., were en-

titled to due process procedures to protect their prop-

erty and liberty interest; and

3. The plaintiff teachers were duly accorded due

process as required by the 14th Amendment of the

Constitution of the United States and Article 1 of the

Constitution of the State of Wisconsin.

Therefore, the defendants’ motion for summary judg-

ment must be granted. Counsel for the defendants are dir-

ected to prepare an order consistent with the foregoing de-

cision and present the same to this Court for signature

A-72

within fifteen (15) days from today, after obtaining ap-

proval of plaintiffs’ counsel as to form.

Dated: July 19, 1974

By THE COURT

/s/ ALLAN J. DECHR

Circuit Judge

A-73

APPENDIX Ill

TRANSCRIPT OF DECISION ON APPELLANTS’ MO-

TION FOR A TEMPORARY RESTRAINING OR-

DER

(From the Bench)

April 11, 1974

The Court: Ladies and gentlemen, I will read my de-

cision in this case. I will ask that everyone who is in the

courtroom remain present. I don’t anticipate more than

about fifteen, twenty minutes, so please remain present so

we don’t have people getting up and leaving during the

course of my decision. And, Counsel, inasmuch as I did

not interrupt arguments this afternoon I of course, request

the same courtesy in delivering my opinion this evening.

As I am sure each one of you can realize perhaps the

most difficult part of being a judge is to hear a case of

this magnitude, a case that is not only important to the

plaintiffs, not only important to the defendants, but a case

that reaches far beyond the walls of this courtroom. It

reaches out to the people in the Hortonville School District,

and perhaps most important—to the children in that school

district.

Over the last couple of days you have heard many legal

principles expounded here in the courtroom, some fine

legal hairs split, arguments on evidence, but in the great

scheme of things we shouldn’t lose track of the fact that

we are attempting to do justice. and that in a matter such

as this, unfortunate as it is, the courtroom is the place

where these decisions are to be made.

The Court’s decision in this case is not going to resolve

the conflict that now exists. As in any labor dispute the

A-74

place to reach agreement is at the bargaining table, not in

the courtroom, not on the streets, and not in the news

media. I think most of you are aware that in the court-

room this evening are the three commissioners of the Wis-

consin Employment Relations Commission and they have

been here since yesterday. One of them since Sunday at

my request. The other two joined us yesterday at the

request of Governor Lucy. This is an important case and

the eyes of the State are upon us. They are upon you the

participants and how you conduct yourself after you

leave the courtroom this evening.

I will now read my opinion.

The Circuit Court jurisdiction is created and limited by

Article 7 Section 8 of the Wisconsin Constitution. I might

just interrupt myself and preface any further remarks by

saying I believe this case to be of such magnitude that the

Court is going to couch its decision in legal terms as much

as possible not for the sake of confusing you so that it takes

you two hours to figure out what I said or what I did,

but I think it is a case of such magnitude that either side

may want to appeal the decision of this Court, therefore,

my decision is basically in legal terminology so that I might

facilitate that process, if that is sought.

The Constitution reads the Circuit Court shall have or-

iginal jurisdiction in all matters civil and criminal within

the state, not excepted in this Constitution, and not here-

after prohibited by law.

As to the matter now before the Court, I find no pro-

hibition or limitation of this Court’s jurisdiction in the

Constitution.

As to applicable statutory law we must look to, first of

all, Wisconsin Statute 253.03. That statute in broad terms

A-75

delineates the broad powers of the Circuit Court, limiting

such powers only when exclusive jurisdiction is given to

some other court. Within that same delineation, that sta-

tute expresses that, and I quote as to the powers of the

Circuit Courts: “they have all the powers, according to the

usages of courts of law and equity, necessary to the full

and complete jurisdiction of the causes and parties and the

full and complete administration of justice.”

The nature of the relief requested at this time is equit-

able in nature. The procedure utilized in seeking that equit-

able relief is by way of an application for a temporary

injunction as controlled by Chapter 268 of the Wisconsin

Statutes. A careful reading of that Chapter of the Statutes

will indicate that reference is only made to courts of record,

judges and court commissioners. There is noticeably absent

from that Chapter express authority for administrative

agencies granting injunctive relief.

However, the matter at Bar is one which unquestion-

ingly arose out of a labor dispute. More specifically, a labor

dispute in the public employment sector. As such, the Court

must give due consideration to the provisions of Section

111.70 of the Wisconsin Statutes. That particular statute

creates certain procedures to be followed when labor dis-

putes arise in the public employment sector.

Briefly, Section 111.70 enumerates various prohibited

practices as well as the powers of the Wisconsin Employ-

ment Relations Commission in dealing with those prohibited

practices. Furthermore, the procedures to be followed by

the Wisconsin Employment Relations Commission in re-

lation to those prohibited practices are controlled by Section

111.07 of the Statutes.

A-76

Upon a review of the pleadings, testizaony and the evi-

dence in this case by way of exhibits I find no prohibited

practices as defined in Section 111.70(3) to either be al-

leged or proved. I can see no basis for jurisdiction in the

Wisconsin Employment Relations Commission in the lim-

ited issues before this Court.

The issue before the Court is one of constitutional or-

igin, namely due process. While the Wisconsin Employment

Relations Commission may concern itself with due process

on occasion, it does so in a collateral fashion. However,

I do not want to indicate that the Wisconsin Employment

Relations Commission does not have jurisdiction in other

areas of this particular labor dispute.

As to the principle citations called to the Court's atten-

tion by counsel for the defendants the Seebruch case re-

ported in 74 L.R.R.M. 2988, and the Lewis case, Colum-

bia County case number 12456 it must be pointed out, Gen-

tlemen, that each of those cases involved either an alleged

unfair labor practice (Lewis) or an alleged prohibited

practice (Seebruch). Such is not the case in this situation.

Accordingly, the Court having deemed the limited issue

in this case to be one of constitutional due process rights,

I specifically find that this Court has jurisdiction to hear

the request for injunctive relief.

As to the second issue, whether injunctive relief should

be granted, this Court must indeed, as invited by plain-

tiff’s counsel, look at substance rather than form. The sub-

stance of this matter is and I specifically find:

(1) The plaintiffs and members of their class

are teachers who signed individual 1973-74 contracts

with the Hortonville Joint School District No. 1.

A-77

(2) The 1973-74 individual contracts incor-

porated by reference the 1972-73 school year master

collective bargaining agreement.

(3) The plaintiffs and members of their class have

engaged in a strike against the Hortonville Joint

School District No. 1 since March 18, 1974, and up

to the present.

(4) Each of the plaintiffs and members of their

class received notices of termination of their employ-

ment as teachers for the aforesaid school district, ef-

fective April 2, 1974.

Now I want to clarify that so there is no misunderstand-

ing. I am not finding whether or not those terminations

are valid or invalid. I am making no such judgment.

The thrust of the plaintiffs’ position has been throughout

these proceedings that they are on strike with justification.

That such justification is in brief a conspiracy by the de-

fendants to fire certain of the plaintiffs and members of

their class by utilizing methods which were calculated to

provoke the present strike. Such a strike, as viewed by the

plaintiffs, would enable the defendants to hire at random

from the ranks once the strike had begun and once their

employment was terminated.

This Court has taken the position that the reasons for

the strike as well as the reasons for the alleged discharge

are not relevant to the scope of this proceeding. This Court

has, therefore, so limited the presentation of evidence in

those respects.

Counsel for the plaintiffs has cited a number of cases

holding that certain strikes are justifiable in spite of existing

collective bargaining agreements which provide to the con-

A-78

trary. Those cases, however, are not applicable to the pub-

lic sector in the State of Wisconsin. The law in Wisconsin

on this point is clear and succinct as set forth in Wisconsin

Statute 111.70 (4) (1) and I quote: “Nothing contained in

this subchapter shall constitute a grant of the right to

strike by any county or municipal employee and such

strikes are hereby expressly prohibited.

That statute does not say nor has any Court in this state

interpreted that statute to provide that strikes are expressly

prohibited except when there is just cause. The legislative

policy on this point is clear. Section 111.01(4) of the Wis-

consin Statutes provides: “It is the policy of this state in

order to preserve and promote the interests of the public,

the employe, and the employer, alike, to establish standards

of fair conduct in employment relations and to provide a

convenient, expeditious and impartial tribunal by which

these interests may have their respective rights and obli-

gations adjudicated. While limiting individual and group

rights of aggression and defense, the state substitutes pro-

cesses of justice for the more primitive methods of trial by

combat.”

It is the further argument of the plaintiffs that the chain

of cause and effect in this case is substantially as follows:

That the defendants committed certain acts; those acts of

defendants caused the strike; the strike caused the dis-

charge and termination of employment notices to be sent

on April 2nd, 1974. But, as I previously indicated, Wis-

consin law does not give validity to the provocation-jus-

tified strike theory. Therefore, one must look to the strike,

the termination of the employment notices chain of cause

and effect.

A-79

Although the case of David Adler and Sons Company

vs. Maglio, 200 Wisconsin 153 is prior to recent develop-

ments and statutes in the area of labor law, the principles

of that case are equitable in nature and they hold true to-

day as they did back in 1921. The Court said in part in

that case on page 159: “. . . the portals of equity are closed

to those who come seeking relief from the consequences

which naturally flow from deliberate wrongs committed

by the applicant for relief. ‘A court of equity acts only when

and as conscience commands, and if the conduct of the

plaintiff be offensive to the dictates of natural justice, then,

whatever use he may make of them in a court of law,

he will be held remediless in a court of equity.’ ”

There is ample testimony in the record that the plaintiffs

discussed the possible consequences of their strike, one of

those consequences being potential termination of their

employment.

This Court can only conclude that the plaintiffs have

deliberately caused their present predicament and that

therefore, they stand before this Court this evening with

what is legally termed “unclean hands.”.

As to the showing of possible success by the plaintiffs in

the underlying lawsuit, let it suffice to say that if that was

the only issue to be considered in granting injunctive relief,

this Court would not deny such relief.

However, the possible success of ultimately prevailing

is not the sole consideration. The second consideration

is whether irreparable damage will be sustained by the

plaintiffs as a result of any of the defendants’ acts.

Irreparable damage means damage which either cannot

be corrected at a future date or if corrected at a future

date it will be too late to accomplish justice. In essence,

irreparable damage is that for which no adequate remedy

can be found to rectify.

A-80

The evidence in this case has proven that each of the

plaintiffs who testified are suffering and will continue to

suffer economic loss as a result of the termination notices

which were sent to them April 2, 1974. Surely the job

market for teachers at this time of the year is poor and

there is obviously little hope that the picture will be better

in the near future. But the fact remains that between March

18 and at least until April 2, 1974, the plaintiffs deliberate-

ly chose to sustain such economic loss, as well as any re-

sulting consequences. When the testimony closed this after-

noon it was apparent that the strike still continues. The

plaintiffs still choose by their own doing a route that is

obviously causing economic loss, economic hardship. This,

however, is not like a garnishment action which was men-

tioned in the course of argument. In a garnishment action

the debtor is deprived of his property as the result of a sud-

den seizure of his property, a decision in which he has no

choice. The same cannot be said here. The plaintiffs had

a choice and they have made it.

The Court is also of the opinion that in spite of the tem-

porary economic loss, temporary economic hardships the

plaintiffs do have adequate remedies by which they may

refer such financial losses if thev prevail in any of those

remedies. There is a grievance procedure available under

their contract for the 1973-74 school year. There are pos-

sible procedures before the Wisconsin Employment Rela-

tions Commission. There are possible suits for breach of

contract, and there is already the underlying lawsuit in this

case.

While the decision is difficult for the Court to make,

as much as the Court can sympathize with the plaintiffs

as well as the defendants in this most difficult decision,

the Court must and does hereby for the reasons afore

A-81

stated deny the plaintiffs application for a temporary in-

junction.

Counsel for the defendants are directed to draft an ap-

propriate order to that effect within five days,

This text is long and has been trimmed here. Open the source document for the complete record.