Petition — Hortonville Education Ass'n v. Hortonville Joint School District No. 1
Supreme Court brief1976
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No.74-16338
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In the : ™
Supreme Court of the United States
Ocroser Term, 1974
HORTONVILLE EDUCATION ASSOCIATION and MICHAEL
WISNOSKI, ROSE MARIE OLSON, THOMAS NADEAU,
JUDY MURPHY, RUSSEL LICHTE and RONALD
HAMMOND,
Conditional Cross-Petitioners,
vs.
HORTONVILLE JOINT SCHOOL DISTRICT NO. i; BOARD
OF EDUCATION OF HORTONVILLE JOINT SCHOOL DIS-
TRICT NO. 1; ROGER WEIHING, ROBERT HAUK, JEAN
MEADS, FLOYD MEYER, MERLIN PLAMANN, VICTOR
SCHROTH and RONALD SURPRISE, individually and as of-
ficers and members of the Board of Education of Hortonvilie
Joint School District No. 1; and MARVIN OBRY, ROBERT
KOHLS and GENE RIEDL, individually and as administrators
of Hortonville Joint School District No. 1,
Respondents.
CONDITIONAL CROSS-PETITION FOR WRIT OF
CERTIORARi TO THE SUPREME COURT OF THE
STATE OF WISCONSIN
ROBERT H. FRIEBERT
THOMAS W. ST. JOHN
FRIEBERT & FINERTY
710 North Plankinton Avenue
Milwaukee, Wisconsin 53203
Telephone: (414) 271-0130
Attorneys for Conditional Cross-Petitioners
Of Counsel:
JAMES L. GREENWALD
General Counsel
Wisconsin Education Association Council
222 West Washington Avenue
Madison, Wisconsin 53703
AS Ae ea eS ES
UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581
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Constitutional Provisions and Statutes Involved ........ 3
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Appendix
Necision of Wisconsin Supreme Court .............. App. 1
Order of Wisconsin Supreme Court on Mo-
FP I cectseetcrtitascsccsintacinteeninaciia App. 41
po , App. 42
Texts of Statutes Involved .....0..00000 222... App. 71
| Authorities Cited
Anti-Fasecist Committee v. MeGrath, 341 U.S. 123, 168
EUUTITIE soxsinssitininsdassbasiniaihamialninanipadanianiieneibaneidinannmnsneannttdias 12
Armstrong v. Manzo, 380 U.S. 5'5, 552 (1965) —............ 15
Arnett v. Kennedy, 416 U.S. 134, 178 (1974) -.............. 13
Bell v. Burson, 402 U.S. 535, 542 (1971) —...02 12
Board of Regents v. Roth, 408 U.S. 564, 569-570 (1972) 12
Boddie v. Connecticut, 401 U.S. 371, 379 (1971) .......... 13, 16
PAGE
Durkin v. Board of Police & Fire Commissioners, 48
.. ) Bb BA Se PEt | Ree 19
Goss v. Lopez, .... U.S. ....... 48 U.S.L. Week 4181 (1975) 16
Jiminez v. Weinberger, .... U.S. ...... agit , 41 L.Ed.2d
EN 19
Mitchell v. W. T. Grant Company, 416 U.S. 600 (1974) 17
Morrissey v. Brewer, 408 U.S. 471, 476 n.1 (1972) ...... 12
North Georgia Finishing, Inc. v. Di-Chem, Ine., ...... ,
US. ....... U.8.L. Week 4192 (1975) ............................ 17
Pickering v. Board of Education, 391 U.S. 563 (1968) 11
Withrow v. Larkin, ...... USS. ......, 43 U.S. L. Week 4459
IE, . scinissideinnsiemsnniaiceecvinsniniciesaicgpeiieininsaciadataisenbsidisaaiias 11
Wis. Stats.
NO RE ER RE ET EI 19
ES ELLE LS AEE ETT 18
ESTEE NTO OT 18
ORR RIS CR ty SOM oS eR ROR 18
car os hee 26 oe 14
In the
Supreme Court of the United States
Ocroser ‘l'erm, 1974
No.
HORTONVILLE EDUCATION ASSOCIATION and MICHAEL
WISNOSKI, ROSE MARIE OLSON, THOMAS NADEAU,
JUDY MURPHY, RUSSEL LICHTE and RONALD
HAMMOND,
Conditional Cross-Petitioners,
vs.
HORTONVILLE JOINT SCHOOL DISTRICT NO. 1; BOARD
OF EDUCATION OF HORTONVILLE JOINT SCHOOL DIS-
TRICT NO. 1; ROGER WEIHING, ROBERT HAUK, JEAN
MEADS, FLOYD MEYER, MERLIN PLAMANN, VICTOR
SCHROTH and RONALD SURPRISE, individually and as of-
ficers and members of the Board of Education of Hortonville
Joint School District No. 1; and MARVIN OBRY, ROBERT
KOHLS and GENE RIEDL, individually and as administrators
of Hortonville Joint School District No. 1,
Respondents.
CONDITIONAL CROSS-PETITION FOR WRIT OF
CERTIORARI TO THE SUPREME COURT OF THE
STATE OF WISCONSIN
The respondents have filed a petition for a writ of cer-
tiorari under the heading Hortonville Joint School District
2
No. 1, et al. v. Hortonville Education Association, et al. in
which review is sought of a decision by the Wisconsin
Supreme Court which held that the conditional cross-peti-
tioners were denied due process of law when their em-
ployment was terminated by the respondents. In the event
that the Court decides to review the decision of the Wis-
consin Supreme Court pursuant to the petition previously
filed by the respondents, the conditional cross-petitioners
pray that a writ of certiorari issue to review those aspects
of the desision 6f the Wisconsin Supreme Court which
are raised herein.
OPINIONS BELOW
The opinion of the Wisconsin Supreme Court which is
the subject of the petition and conditional cross-petition
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 Circuit Court for Outagamie County, Wisconsin, which
gave rise to and was reversed in the Wisconsin Supreme
Court decision noted above is not officially reported, but is
unofficially reported at 88 L.R.R.M. 2743.
JURISDICTION
The decision of the Wisconsin Supreme Court reversing
the Circuit Court’s order granting summary judgment
on one cause of action and affirming its order sustaining
a demurrer to another was handed down February 5, 1975.
An order denying motions for rehearing filed by both sides
was entered March 28, 1975. The conditional cross-peti-
tioners do not believe that the jurisdiction of this Court
can properly be invoked in that the decision reversing the
trial court’s grant of summary judgment is not a final
judgment. However, if the Court finds that its jurisdiction
is properly invoked and that it may entertain the petition
3
for a writ of certiorari previously filed by the respondents,
then the same jurisdictional bases would warrant the
Court’s consideration of this conditional cross-petition.
Under such circumstances the jurisdiction of the Court
would be invoked pursuant to 28 U.S.C. $1257(3). Author-
ity for jurisdiction to consider a conditional cross-petition
for a writ of certiorari is found in McComb v. Farmers
Reservoir and Irrigation Co., 337 U.S. 755 (1949).
QUESTIONS PRESENTED
The principal question presented is whether the condi-
tional cross-petitioners, who were found to have been de-
nied due process of law, are entitled to restoration of their
status quo until such time as due process is afforded.
Also presented is the question of whether or not Wis-
consin’s classification of teachers with police officers and
firemen for purposes of prohibiting strike activities on their
part while denying them the countervailing benefits given
to police officers and firemen constitutes a denial of equal
protection of the iaws.
CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED
Section 1 of the Fourteenth Amendment to the United
States Constitution provides, in part, 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 per-
son of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction
the equal protection of the laws.’’
Also involved in this case are Wisconsin Statutes
$§111.70(4)(1); 111.70(4)(jm); 111.77; and 62.13(5) (i),
all of which are set forth in full as part of the appendix.
4
STATEMENT OF THE CASE
Commencing at some time prior to March 18, 1974, the
individual conditional cross-petitioners, who were teachers
at the Hortonville Public Schools and were members of
the Hortonville Education Association, the other condi-
tional cross-petitioner, attempted, through the Association,
to engage in collective bargaining to reach a collective
bargaining agreement for the year then ending and for the
next school year. Their employers were the Hortonville
Joint School District No. 1, and the bargaining agent for
the District was the Hortonville Board of Education. The
parties were unable to reach an agreement for either year
even though the teachers had been attempting to do so
with respect to 1973-74 since the previous spring. The
teachers, feeling that the failure to reach an agreement was
due to a lack of good faith bargaining by the employers
and that the employers were attempting to destroy their
union, commenced a strike on March 18, 1974. (R. pp. 51,
135, 205, 206, A-Ap. pp. 142, 135)*
On March 29, 1974, the Hortonville Board of Education
decided to schedule disciplinary hearings for each indi-
vidual teacher who was then engaged in a work stoppage.
Notices of disciplinary hearings were prepared and de-
livered to the Outagamie County Sheriff’s Department for
service on each teacher. Eleven teachers were served
notices, including the day of service, four days before the
scheduled hearing. Fifty-one teachers were served three
days prior to the hearing. Three teachers were served one
day pvior to the hearing and one teacher received her notice
on the day of her scheduled hearing.
* References are to the record as paginated for the Wisconsin Su-
preme Court and to the Appellants’ Appendix to their brief to the
Wisconsin Supreme Court.
rer
5
On the first day set for hearings, April 1, 1974, the
teachers attended en masse. At that hearing the counsel
for the teachers objected to the sufficiency and adequacy
of the disciplinary hearing notices, objected to the Board
of Education acting as the decisionmaker in their cases, re-
quested the opportunity to present evidence in defense and
in mitigation of punishment, made an offer of proof when
that request was denied, requested and was denied the op-
portunity to adversely examine members of the Board,
who were parties to the bargaining underlying disciplinary
hearings, and protested the fact that the Board’s attorney
acted as both prosecutor and counsel to the decisionmaker.
At a closed meeting on April 2, 1974, the Board of Edu-
cation voted to terminate the employment of the teachers.
Notices of termination were then sent out. Those notices
purported to terminate contracts for the 1973-74 and 1974-
75 school vears. Following the terminations, the Horton-
ville Edueation Association and six of the fired teachers,
proceeding on behalf of a class, brought an action in Cir-
cuit Court for Outagamie County, Wisconsin against the
schocl district, the Board of Education, the members of
the Board and the administrators of the school district.
The amended complaint alleged four separate causes of
action. The first cause of action challenged the action of
the defendants on due process grounds. Essentially, the
complaint alleged that the notice and hearing provisions
afforded were inadequate to comport with the due process
provisions of the fourteenth amendment to the United
States Constitution. The second cause of action alleged a
denial of equal protection with respect to differing treat-
ment by the Board toward teachers who were and were not
represented by the Hortonville Education Association. The
third cause of action challenged the Board’s action on the
grounds that it was taken in violation of the Wisconsin
6
Open Meeting Law, $66.77, Wis. Stats. The fourth cause
of action challenged the Board’s action with respect to
hiring replacement teachers.
The circuit court granted the respondents’ motion for
summary judgment with respect to the first cause of action
of the complaint and sustained demurrers with respect to
the second, third and fourth. The second and fourth were
repled and are still pending before the circuit court. The
trial court’s rulings on the first and third, however, were
ultimately appealed to the Wisconsin Supreme Court.
With respect to the first cause of action, the trial court
examined the facts and concluded that the teachers were
entitled to due process of law prior to any disciplinary ac-
tion in that they had both a property interest under state
law and a liberty claim. (R. pp. 132-133, A-Ap. p. 119).
The court concluded, however, that in view of its belief
that there could be no defense to a prohibited public em-
ployee strike, due process was easily satisfied and that the
penalty of discharge was automatic. (R. pp. 136, 137, A-Ap.
pp. 124, 125).
With respect to the third cause of action challenging the
secret meeting of the Board of Education which resulted in
the termination of the teachers’ emp!oyment, the court held
that the meeting was proper. The court reasoned that this
type of meeting fell under two exceptions to the open meet-
ing law and that it was proper to conduct the meeting in
executive session in the absence of a request by the teach-
ers to hold the meeting open to the public. Since the
complaint did not allege that such a request had been made,
the judge felt that no cause of action was stated. The
court reached that conclusion despite the allegation in the
teachers’ complaint that they had no notice that any hear-
ing was contemplated and despite the inference therefrom
7
that the teachers had no opportunity to request an open
meeting.
On September 23, 1974, in response to an order to show
cause, the Wisconsin Supreme Court heard argument on
the question of whether the facts involved in the case should
be the subject of an original action before the Wisconsin
Supreme Court. On September 24, 1974, the petition for
an original action was denied, but the court ordered that
an expedited appeal be allowed. The court also allowed
the teachers to present all constitutional issues involved,
even though some of these issues had not been presented
directly in the lower court.
The Wisconsin Supreme Court handed down a decision
in the matter on February 5, 1975. With respect to the
third cause of action that court affirmed the trial court’s
order sustaining the demurrer. No question is raised in
this conditional cross-petition as a result of that portion
of the court’s ruling. With respect to the first cause of
action, the Wisconsin Supreme Court reversed the sum-
mary judgment entered by the circuit court and remanded
the case to the circuit court for further proceedings con-
sistent with ihe opinion. While the court rejected several
of the constitutional arguments raised by the teachers, it
agreed that due process had been denied them because of
a lack of a fair and impartial decisionmaker. The court
held that discharge was not an automatic penalty for en-
gaging in a prohibited public employee strike and that the
penalty to be imposed, if any, had to be reasonable under
the circumstances. Interpreting Wisconsin law and pro-
cedure, the Wisconsin Supreme Court found that the school
board was responsible for negotiating the school district’s
position with the teachers and, at the same time, had the
authority to impose punishment for engaging in a pro-
hibited strike. The Wisconsin Supreme Court held that
8
-
a
this situation allowed the school board to conclude the bar-
gaining process on its own terms by exercising the expe-
dient power to discharge the teachers who were their
adversaries in the negotiating process. The possession of
such a weapon by one of the parties to an underlying dis-
pute was said to create such a real risk of partiality when
that party sat as a decisionmaker with respect to the other
party’s conduct as to violate principles of due process of
law.
The court ordered the matter remanded to the trial court
for hearings of a de novo nature in which the trial court
was to decide what penalty, if any, could properly be im-
posed against the teachers for engaging in a prohibited
strike. The court also set up a procedure for the future in
eases in which teachers and school boards found them-
selves in adversary positions and the property or liberty
interests of the teachers were at stake. In such cases the
court held that upon termination a teacher could petition
a court for de novo review of the action taken by the board.
Both parties before the Wiscensin Supreme Court
moved for rehearing. The school board argued, on vari-
ous grounds, that due process was either not required or
had been satisfied. The teachers argued that since a vio-
lation of their rights to due process had been found, the
purported discharges weré of no legal effect and that they
were entitled to reinstatement with a claim for back pay
until such time as a meaningful hearing complying with
due process requirements was held. On March 28, 1975,
the Wisconsin Supreme Court denied both motions for
rehearing.
Two issues are sought to be raised by the conditional
cross-petitioners in the evert that this Court grants the
petition for a writ of certiorari filed by the school board.
The first is the conditional cross-petitioners’ claim of en-
9
titlement to reinstatement until such time as a hearing
comporting with due process requirements is provided.
The requests for reinstatement and back pay were raised
in the original pleading to the Wisconsin Supreme Court
on the appeal, that is the appellants’ brief, at page 35.
The same issue was the sole subject of the conditional
cross-petitioners’ Motion for Rehearing as appellants be-
fore the Wisconsin Supreme Court and was fully pre-
sented in the Appellants’ Brief in Support of Motion for
Rehearing. The Wisconsin Supreme Court never com-
mented on reinstatement or back pay in its decision on the
appeal and denied both sides’ motions for rehearing with-
out comment. The equal protection issue of the condi-
tional cross-petitioners was raised in the Appellants’ Brief
and Appendix before the Wisconsin Supreme Court on
pages 26-32. The court answered the claim as follows:
‘‘|The teachers| claim that teachers are denied
equal protection because, 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 substan-
tial distinctions which make one class really different
from another.’ ... It it is not difficult to find a rational
basis for the legislation. If police or firemen go on
strike the eminent and immediate danger to the com-
munity is so great that every reasonable measure
must be taken to get them back on the job 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.’’
(p. App. 13)*
Thus, the federal questions conditionally sought to be
reviewed here were timely and properly raised below so
that this Court has jurisdiction to review them if juris-
diction is found in other respects.
* References for quotations from the Wisconsin Supreme Court's
decision are to the Appendix to this Conditional Cross-Petition.
10
ARGUMENT
The conditional cross-petitioners do not seek outright
review of the Wisconsin Supreme Court’s opinion by this
Court through certiorari and did not take an appeal be-
cause they believe that this Court lacks jurisdiction in that
the Wisconsin Supreme Court’s decision is an interlocu-
tory order reversing a lower court summary judgment
and remanding the case for further proceedings. Further-
more, with respect to the Wisconsin Supreme Court’s de-
cision on the due process question raised, the decision was
obviously correct, as far as it went.
Due process was denied the teachers. The highest
court of the State of Wisconsin held that applicable state
statutes gave them an expectation of continued public
employment rising to a level of a property right and that
charges of striking in violation of Wisconsin’s public em-
ployee strike prohibition were such serious accusations
in Wisconsin as to threaten their liberty interests. Both
the circuit court and the Wisconsin Supreme Court held
that as a result of the situation presented in this case
and the relationship of Wisconsin law to that situation
due process was required. Furthermore, the Wisconsin
Supreme Court held that the local circumstances caused
by applicable Wisconsin law, which placed one party to
a dispute in the position of being the other party’s judge
for charges resulting from the same underlying dispute
constituted a denial of a neutral and unbiased decision-
maker and therefore denied due process of law. What-
ever arguments the respondents might have had in the
past to the effect that the Wisconsin Supreme Court was
inappropriately applying due process decisions of this
11
Court were laid to rest with Withrow v. Larkin,
US. , 43 U.S. L. Week 4459 (1975) which reaffirmed
Pickering v. Board of Education, 391 U.S. 563 (1968).
Since the respondents have petitioned this Court for
review, however, the conditional cross-petitioners seek
review of the two issues previously discussed in the event
that this Court decides to grant the respondents’ sep-
arate petition. If the Court deems it appropriate to re-
view the issue raised by the respondents in their own
petition, then it certainly would be appropriate to re-
view the two issues conditionally presented herein in that
they are related.
The conditional cross-petitioners were fired by the re-
spondents in April of 1974. The Wisconsin Supreme Court
ultimately held that those firings denied the teachers their
rights to due process of law. To correct such a problem
in the future, the court devised and judicially ordered a
hearing procedure involving de novo judicial review of
teacher terminations in those situations in which liberty
interests are involved and the school board occupies an
adversary position to the teacher. However, no specific
immediate relief was given to the teachers who secured
that ruling and, since the Wisconsin Supreme Court has
stayed its mandate and the remand to the trial court pend-
ing the school board’s petition for review from this Court,
the deprivation of constitutional rights found to exist con-
tinues to today, well over a year since the original uncon-
stitutional action. The conditional cross-petitioners were
denied due process of law and they are entitled to a remedy
which has the effect of correcting that denial. They are
entitled to an impartial decisionmaker in the first instance.
Since they have not had one, the effects of the prior depri-
vation of rights must be remedied. They are entitled to
12
reinstatement and back pay until they are provided with
due process.
This Court has consistently held that a hearing com-
porting with due process requirements must be held before
the termination of any rights subject to procedural due
process protections.
~
‘‘While ‘many controversies have raged about . . . the
due process clause’, /bid., it is fundamental! that except
in emergency situations (and this is not one) due
process requires that when a state seeks to terminate
an interest such as that here involved, it must afford
‘notice and opportunity for hearing appropriate to
the nature of the case’ before the termination becomes
effective. Ibid. Opp Cotton Mills vy. Administrator, 312
U.S. 152-156; Snaidach v. Family Finance Corp., {395
U.S. 337 (1969)]; Goldberg v. Kelly, [397 U.S. 254
(1970)]; Wisconsin v. Constantineau, 400 U.S. 4383
(1971).”’ Bell v. Burson, 402 U.S. 535, 542 (1971).
(Emphasis in the original).
‘“‘The right to be heard before being condemned to
suifer grievous loss of any kind, even though it may
not involve the stigma and hardships of a criminal con-
viction, is a principle basic to our society.’’ Anti-
Fascist Committee v. McGrath, 341 U.S. 123, 168 (1951)
(Frankfurter, J., concurring). (Emphasis supplied).
‘*When protected interests are implicated the right to
some kind of prior hearing is paramount.’’ Board of
Regents v. Roth, 408 U.S. 564, 569-570 (1972). (Hm-
phasis supplied).
‘‘The hearing required by due process, as defined here-
in, must be accorded before the effective decision.’’
Morrissey v. Brewer, 408 U.S. 471, 476 n.1 (1972).
(Emphasis in the original).
Since there has yet to be a hearing which satisfies due
process requirements in this case, as the Wisconsin Su-
preme Court has determined, the action taken with respect
13
to the appellants’ teaching positions is unconstitutional
and must be vacated.
While the formality and specific requisites for a hear-
ing may vary under circumstances involved in different
cases, and the importance of the interests concerned there-
in, the requirements that due process be met prior to
effective termination of employment cannot be waived.
‘‘That the hearing required by due process is subject
to waiver, and is not fixed in form does not affect its
root requirement that an individual be given an op-
portunity for a hearing before he is deprived of any
significant property interests, except for extraordinary
situations where some valid governmental interest is at
stake that justifies postponing the hearing until after
the event.’’ (Boddie v. Connecticut, 401 U.S. 371, 379
(1971). (Emphasis in the original).*
Simply, the hearing which must be afforded must be given
before the termination becomes effective. In this case, that
* This is clearly not a situation where some valid governmental
interest justifies postponing the hearing until after the event. While
the school board certainly had a legitimate interest in resuming
school operations, there was nothing in that interest that required
termination of the teachers’ employment. As pointed out by the
Wisconsin Supreme Court, the school board cculd have sought in-
junctive relief and could have intensified bargaining efforts. The
firings were accomplished solely to punish the teachers, which is
something the board cannot properly do. In any event, even when
there is an extraordinary situation justifying the government’s action
prior to the hearing,
“a principal rationale has been that a hearing would be pro-
vided before the taking became final. See North American Cold
Storage Co. v. Chicago, 211 U.S. 306 (1908) (Seizure of food
unfit for consumption) ; Central Trust Co. v. Garvan, 254 U.S.
554 (1921) (Seizure of property under trading with the enemy
act)... .” Arnett v. Kennedy, 416 U.S. 134, 178 (1974)
(White, J., concurring in part and dissenting in part).
14
hearing has yet to be given. Therefore, the terminations
are not effective and this Court should say so.
What the Wisconsin Supreme Court said appears to be
inconsistent with the rest of its decision. In attempting to
construe $118.22(2), Wis. Stats., in a fashion to meet a
- valid constitutional objection, that court held that the board
should make initial determinations with respect to hiring
or firing of teachers. lt added that when due process is
required, a notice, a hearing and a statement of reasons
should be given, presumably prior to the taking. With re-
spect to the situation at bar, however, the court stated:
‘‘In those situations where an employed teacher
is discharged or otherwise disciplined and due process
is required, and the schoo! board is in an adversary
position, we hereby provide and direct that the dis-
satisfied teacher or teachers can, upon petition, obtain
a de novo determination of all issues in any court of
record in the county where the school district or part
of it is located.’’ (p. App. 28)
As the teachers read the above quoted statement, it is at
least arguable that the Wisconsin court is saying that due
process need not be afforded in the first instance. Such is
totally inconsistent not only with the rulings of this Court
quoted above, but also with the Wisconsin court’s pre-
vious language in its decision. The ruling possibly allows
the unconstitutional termination to stand and puts the bur-
den on the individual whose rights have been violated to
reverse that error by an affirmative act. If that is a cor-
rect interpretation of what the court intended, then it is
respectfully submitted that the remedy afforded by the
court violates due process in and of itself.
‘* A fundamental requirement of due process is ‘the op-
portunity to be heard.’ Grannis v. Ordean, 234 USS.
ALR Sedo Ee NT Se ee ee Oe
ee iT.
15
385, 394. It is an opportunity which must be granted
at a meaningful time and in a meaningful manner. The
trial court could have fully accorded this right to the
petitioner only by granting his motion to set aside the
decree and consider the case anew. Only that would
have wiped the slate clean. Only that would have re-
stored the petitioner to the position thai he would have
occupied had due process of law been accorded to him
in the first place.’’ Armstrong v. Manzo, 380 U.S. 545,
552 (1965). (Emphasis added).
This is not to suggest that the Wisconsin Supreme Court
was powerless to create a remedy under the circumstances.
The remedy created does not go far enough. If that Court
felt that it was essential for the school board to actually
make a determination on discipline or discharge to initiate
the proceedings, then perhaps the appropriate program
would have been to direct the board to proceed as follows:
In those situations where an employed teacher is sought
to be discharged or disciplined, due process is required,
and the schoo! board is in an adversary position, the board
should notify the teacher of its intentions and inform the
teacher that if he objects he need merely say so and the
board will have the burden of seeking approval of its pro-
posed conduct by a court of record in the county where
the school district or a part of it is located prior to impo-
sition of such punishment. In those situations where the
continued presence of the teacher in the school constitutes
a threat to the students, the board could seek an order in
the nature of a temporary restraining order from the
court which would have the effect of suspending the teach-
er, with pay, until such time as a constitutionally antiseptic
hearing could be held.
To place the burden on the empleyee to seek de novo re-
view subsequent to the board’s determination to discharge
16
could not conceivably come close to satisfying constitutional
requirements unless the hearing were, in fact, de novo.
That is, once the discharged employee demanded a de novo
review the status quo would be restored prior to the hear-
ing. All prior proceedings would be vacated at once. He
would be restored to his position, and entitled to his wages,
unless and until the independent decision maker acted ad-
versely to him. Applying that standard to this case, it
would mean that the teachers, who filed this lawsuit on
April 5, 1974, were entitled to reinstatement from at least
that date.
Any remedy upon a finding of improper discharge which
does not reinstate the improperly discharged employee to
his original status until such time as constitutionally per-
missible steps are conducted does not satisfy the constitu-
tional requirements. As emphasized in Boddie v. Connectt-
cut, 401 U.S. 371 (1971), at p. 378:
‘‘What the constitution does require is ‘an opportunity
... granted at a meaningful time and in a meaningful
manner,’ Armstrong v. Manzo, 380 U.S. 545, 552 (1965)
(Emphasis added)... .’’
If the unconstitutional discharge here is allowed to stand
until a proper hearing is afforded, with the resultant con-
tinuation of the employees’ deprivation, the later hearing
is not ‘‘at a meaningful time and in a meaningful manner.”’
For the subsequent hearing to be ‘‘meaningful’’, all re-
sults of the prior unconstitutional hearing must be vacated
and set aside.
In Goss v. Lopez, ...... U.S. —..., 48 U.S.L. Week 4181
(1975), this Court held that minimum due process was re-
quired before a student could be compelled to suffer a ten
day suspension from school. More elaborate hearing pro-
cedures would probably be required, according to the ma-
we oe on 8 ae tegen
17
jority opinion, if a more substantial deprivation of prop-
erty or liberty were involved. Obviously, discharge is
about as substantial a deprivation of property and liberty
as can be imposed against teachers. With respect to the
availability of de novo review, this Court held that such
review, even if available, was inadequate.
‘Appellants point to the fact that some process is
provided under Ohio law by way of judicial review.
Uhio Rev. Code $2501.06. Appellants do not cite any
case in which this general administrative review stat-
ute has been used to appeal from a disciplinary deci-
sion by a school official. If it be assumed that it could
be so used, it is for two reasons insufficient to save in-
adequate procedures at the school level. First, al-
though new proof may be offered in a §2501.06 pro-
ceeding [citing cases], the proceeding is not de novo.
... Thus, the decision by the school—even if made
upon inadequate procedures—is entitled to weight in
the court proceeding. Second, without a demonstra-
tion to the contrary, we must assume that delay will
attend any §2501.06 proceeding, that the suspension
will not be stayed pending hearing, and that the stu-
dent meanwhile will irreparably lose his educational
benefits.’’ U.S.L. Week at 4186 n. 10.
Even a corporation in a garnishment action is entitled
to more than the conditional cross-petitioners have re-
ceived in this case. North Georgia Finishing, Inc. vy. Di-
Chem, Inc., ...... US. ....., 48 U.S.L. Week 4192 (1975),
stands for the proposition that a corporation’s right to
due process of law was violated by a state statute allowing
garnishment of its bank account, thereby depriving it of
the use of its property during the course of litigation,
since there was no provision for an early hearing. The
recent decision of Mitchell v. W. T. Grant Company, 416
U.S. 600 (1974) was distinguished because in Mitchell the
state statute involved compelled an immediate hearing be-
18
fore a neutral decision maker after seizure and dismissal
of an attachment in the absence of creditor proof of
grounds therefor.
In this case the conditional cross-petitioners have had
both their property and liberty interests substantially in-
terfered with for well over a year, and that interference
continues through this litigation, even though it has al-
ready been determined that their rights to due process of
law have been violated. The only way such deprivations
ean be corrected at this stage is with back pay and rein-
statement until such time as any attempt to terminate the
teachers’ employment comports with the requirements of
due process of law.
Should this Court decide to review the issues raised by
the respondents in their own petition, the conditional cross-
petitioners ask that the Court also review the Wisconsin
Supreme Court’s treatment of the equal protection claim
raised by the teachers. They are denied equal protection
by the Wisconsin statutory procedure.
Section 111.70(4)(1), Wis. Stats., prohibits strikes by
all county and municipal employees. The statute makes no
distinctions with respect to the degree, if any, of the rela-
tionship between the function of employees and the health
and safety of the communities within the state. Teachers
are not policemen, firemen or public health employees. Yet
they are prohibited from striking as though their function
were equivalent to those employees who are entrusted with
protection of the public. At the same time, however, they
are also denied concomitant benefits that are provided to
the police and firemen.
Section 111.70(4)(j)(m), Wis. Stats., grants the right
of binding arbitration to members of the Milwaukee Police
Department. Section 111.77, Wis. Stats., provides for bind-
en ee ge
19
ing arbitration for fire departments and city and county
law enforcement agencies, with few exceptions. Section
62.13(5) (i) allows de novo judicial review of the reason-
ableness of disciplinary proceedings against police and fire-
men, including de novo review of the reasonableness of
any penalties imposed. Durkin v. Board of Police & Fire
Commissioners, 48 Wis.2d 112, 180 N.W. 2d 1 (1970). Thus,
not only are teachers forced into a class which they don’t
deserve to be in, but even within that class they are dis-
criminated against. .
What is created is two subclasses within one class, with
differing treatment for the subclasses. The subclass con-
sisting of police and fire departments is given the right
to binding arbitration in return for being denied a right
to strike. The members of the subclass are also given the
right to de novo judicial review of the reasonableness of
any penalty if they are charged with striking despite the
prohibition. The other subclass, which includes teachers
and others whose function is not essential to the health
and safety of the citizenry, is denied the right to strike,
the right to binding arbitration and the right of de novo
review of penalty. As stated in Jiminez v. Weinberger, ......
US. ......, .....-, 41 L.Ed.2d 363, 371 (1974):
‘‘{TJo conclusively deny one subclass benefits pre-
sumptively available to the other denies the former
the equal protection of the law guaranteed by the due
process provisions of the Fifth Amendment. Schnei-
der v. Rusk, 377 U.S. 163, 168; Bolling v. Sharp, 347
U.S. 497, 499.”’
The only way the equal protection clause could be satis-
fied with respect to different treatment among the sub-
classes is to suggest that policemen and firemen are en-
titled to binding arbitration and de novo judicial review
of penalties imposed because their function is essential to
the health and safety of the citizens whereas the teachers’
is not. This might create a rational relationship between
20
the classification of police and firemen separately from
other public employes and the object sought to be achieved,
that is, the safety an@ health of the citizens. But recogni-
tion of that fact requires recognition of its corollary, that
the ban on striking by public employes who are not essen-
tial to the health and safety of the citizenry does not bear
a rational relationship to protecting the health and safety
of the citizenry. Simply stated, the state cannot have it
boti ways and propose to satisfy equal protection on both
levels. Consequently, to satisfy equal protection require-
ments, this Court must either hold the strike ban inappli-
cable to nonessential public employes like teachers or
direct that they be given the benefits of binding arbitra-
tion and de novo review of punishment as well.
CONCLUSION
The conditional cross-petitioners believe that the Wis-
consin Supreme Court correctly ruled on their process
claim, as far as the court went. While it is doubtful
whether this Court has jurisdiction to review the decision
of the Wisconsin Supreme Court in any respect, if che
Court finds that it can and should review the issue raised
by the respondents in their own petition, then the teachers
request that the Court also grant this conditional cross-
petition for a writ of certiorari and consider the issues
raised by both sides.
Respectfully submitted
Rosert H. FRtesert
Tuomas W. St. Jonn
Friepert & FINERTY
Attorneys for
Conditional Cross-Petitioners
Of Counsel:
James L. GREENWALD
General Counsel
APPENDIX
APPENDIX
NO. 635
August Term, 1974
STATE OF WISCONSIN: IN SUPREME COURT
HORTONVILLE EDUCATION ASSN., et al.,
Appellants,
Vv.
HORTONVILLE JOINT SCHOOL DISTRICT N>. 1,
et al,
Respondents.
APPEAL from a judgment and an order of the circuit
court for Outagamie county: ALLAN J. DEEHR, Circuit
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 teac. ers in the Hortonville Joint
School District No. 1 and their representative and bargain-
ing agent, the Hortonvil’e 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. Collective bar-
gaining did not resolve the dispute and in March, 1974, a
os
App. 2
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 declare
the action of the school board null and void and for rein-
statement of the teachers.
The trial court granted the school board’s motion for
summary judgment as to tlie 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, lloyd 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 return
to their jobs. Several teachers did return on Friday,
March 22nd.
Sew tres ee
- —- eee
ry) ame
ES Sie
App. 3
On March 23rd, the superintendent, again at the direc-
tion of the board, sent a letter to each teacher again in-
viting them to return to work and advising them that
strikes by publie 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
1“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.”
App. 4
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.
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 ques-
tions 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 em-
ployees did not receive fair notice of the hearings and
ihat 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 unlaw-
ful 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.
App. 5
On Tuesday afternoon, April 2nd, the board held a spe-
cial meeting at which it adopted a resolution terminating
the employment of the teachers in the class represented
by appellants here. Letters were sent to such teachers
indicating that their employment was terminated and that
their offers of employment or contracts for the 1974-1975
school year were revoked or terminated.’
On April 5th 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
discharged.
2“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.
Weihing’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 Hor-
tonville Community Schools, Joint School District #1, Village of
Hortonville, et al., is hereby terminated, effective immediately. Fur-
thermore, this action includes the withdrawal of the offer of em-
ployment for the 1974-75 school term, and/or termination of such
tendered employment contract. Be further advised that your dis-
trict-paid WPS hospital insurance coverage will cease on April 30,
1974, unless you make contrary arrangements with the insurance
company. Information regarding other fringe benefits will be forth-
coming to you in the near future.
“The Board also directed the administration to commerce 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 Superinten-
dent Obry or a principal if you wish to se apply.”
App. 6
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-
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
there 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?
App. 7
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 teach-
ers, Without provision for binding arbitration and de novo
review of reasonableness of punishment, when such bene-
fits are provided for other public employees, constitute a
violation of the equa) 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 re-
spect to constituticnal 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; Bradiey 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?
App. 8
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 employees, sec. 111.89, Stats., provides:
‘Strike prohibited. (1) Upon establishing that a
strike is in progress, the employer may at his option
either seek an injunction or file an unfair labor prac-
tice charge with the commission under s. 111.84 (2)
(e) or both. In this regard it shall be the responsibil-
ity 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 denial of
injunctive relief.
‘*(2) The occurrence of a strike and the participa-
tion therein by a state employe do not affect the rights
given to the employer to deal with the strike, includ-
ing:
‘‘(a) The right to impose discipline, including
discharge, or suspension without pay, of any em-
ploye participating therein;
‘‘(b) The right to cancel the reinstatement
eligibility of any employe engaging therein; and
‘*(c) The right of the employer to request the
imposition of fines, either against the labor or-
ganization or the employe engaging therein, or
to sue for damages because of such strike activ-
ity.”’
The appellants contend that since employers of state
employees are specifically given the right to discharge ui
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.
App. 9
The respondents cite Millar v. Joint School 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
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 direc-
tion 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 contract then in force shall con-
tinue for the ensuing school year. A teacher who re-
ceives a notice of renewal of contract for the ensuing
school year, or a teacher who does not receive a notice
of renewal or refusal to renew his contract for the
ensuing school year on or before March 15, shall ac-
cept 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
membership of the board. Nothing in this section pre-
vents 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 under a contract of employment with
©»other board.’’
The reference to the fact that a teacher may be ‘‘dis-
missed’’ 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
App. 10
from employment and not to merely refuse to renew a
contract.
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, therehy
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.¢., 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.
%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 respect to the motion for summary judgment. However, be-
cause we have decided to determine the issues raised upon appeal,
this document should be considered.
App. 11
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
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 statu-
tory 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 de-
nied 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 materia! here, ail 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
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.
App. 12
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
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, 7.e., police and
firemen.
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. vy. 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. Simance, Inc. vy. Department of Reve-
nue (1973), 57 Wis.2d 47, 57, 203 N.W.2d 648. In Wiener,
* See 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.
App. 13
supra, page 147, this court reiterated five standards neces-
sary for a proper classification:
‘*(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 con-
stituted as to preclude additions to the numbers in-
cluded 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.’’ Weimer, 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 as soon as possible, or to prevent them from striking
® See secs. 111.70(4) (jm) and 111.77, Stats.
App. 14
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 dcnied 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
sovereignty 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 Atl2d 482.
Another rationale is that the peculiar nature of the govern-
ment, as opposed to private employers, makes it particu-
larly 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 com-
petitors, the impact of foreign goods, the substitution
of capital for higher-priced labor, the shift of oper-
ations to lower-cost areas, the contracting out of high-
cost operations to other enterprises, the shutdown of
unprofitabie plants and operations, the redesign of
products to meet higher costs, and finally the man-
agerial option to go out of business entirely. Similar
limitations are either nonexistent or very much weaker
in the public sector. While budgets and correspond-
ing tax levies operate in a general way to check in-
creases in compensation, the connection is remote and
searcely applicable to particular units of groups of
strategically located public employees. Unhampered by
such market restraints, a union that can exert heavy
App. 15
pressure through a strike may be able to obtain ex-
cessive 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 legis-
lative process. Note: The Strike and Its Alternatives in
Public Employment, 1966 Wisconsin Law Review, 549, 556.
It is also often stated that the strike ban protects the pub-
lie 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 to broad in its seope.
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
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
App. 16
in covering all Government employees regardless of
the types of 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 worekrs 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. Maryland,
366 U.S. 420, 426, 81 S. Ct. 1101, 1105, 6 L.Ed.2d 393
(| ar
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 abolished 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
any persons of property or liberty without die 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
App. 17
laws of the state of Wisconsin and is a municipal employer
as defined in see. 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 process
when his one-year teaching contract was not renewed.
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
that must not be arbitrarily undermined. It is 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 understand-
ings that secure certain benefits and that support
claims ef entitlement to those benefits... .’’ Roth,
supra, pages 576, 577.
App. 18
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 contractural 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, ju-
risdictions long has employed a process by which
agreements, though not formalized in writing, may
be ‘implied.’ 3 A. Corbin on Contracts, sees. 561-
072A (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.’ Id., 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, Pelisek
v. Trevor State Graded School Dist. No. 7 (E.D. Wis.
1974), 371 Fed.Supp. 1064.
In Wieman v. Updegraj (1952), 344 U.S. 183, 73 Sup. Ct.
215, 97 L.Ed. 216, the court held that professors removed
from office during the terms of their contracts were en-
titled to due process. See also, Carpenter v. City of
Greenfield School District No. 6 (B.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 offers
or contracts for employment for the 1974-1975 school year
were revoked or rescinded. This unquestionably amounted
to a deprivation of property within the intendment of the
due process clause.
The respondents contend that no deprivation of property
is involved because the employees, by going on strike,
App. 19
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-
mire 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 teachers 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:
‘‘There might be cases in which a State refused to
re-employ a person under such circumstances that
interests 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 seri-
ously damage his standing and associations jp 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 ‘{[wlhere 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.
App. 20
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
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 contract, 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 Cafteria d 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
App. 21
private interest that has been affected by govern-
mental 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
determined 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, 1.e.,
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.id.2d 267; Morrissey
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,
7 The appellants do make brief references 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, however, and the only issue raised regarding due pro-
cess goes to the alleged 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 there-
after.
App. 22
involving the due process required to be afforded 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
unfair 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
assumption one way or the other to conclude that
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 cannot
always have complete objectivity in evaluating them.
Goldberg v. Kelly found it unnecessary to impugn
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 erdinance
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 te hold the
balance nice, clear and true between the State and
the aceused....’....’’ Ward, supra, page 60.
It is imporiant to note that procedural due process is
not limited to the factual determination as to whether an
App. 23
individual did or did not engage in the particular con-
duct. lt 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
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 consider-
ation 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 difficult 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 con-
certed activity. This is not to suggest, of course, that the
board members were anything but dedicated public serv-
ants, trying to provide the district with quality education
App. 24
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 dis-
charge was possibly a convenient alternative which would
eliminate their labor problems in one fell swoop. We con-
clude that the board was not an impartial decisionmaker in
a 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. 14, 1912, ¢. 389,
sec. 6, 37 Stat. 555, now 5 U.S.C., see. 7501), which pro-
vides in pertinent part at page 150:
‘¢ *?N Jo 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:
App. 25
‘* . . the very section of the statute which granted
him that right, a right which had previously existed
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 bifureating the very sentence
of the Act of Congress which conferred 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 Con-
gress 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 process
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
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:
App. 26
‘eof... (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 de-
termination 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 veen 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
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. See. 118.22
(2), Stats., provides in part:
® But see: Muskego-Norway C.S.J.S.D. No.9 v. W.E.R.B., supra.
App. 27
‘*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
resclve disputes or provide due process, the courts, under
the Wisconsin Constitution,’ can fashion an adequate
remedy.
The plaintiffs-appellants contend that part of see.
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
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
® 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 ob-
tain justice freely, and without being obliged to purchase it, com-
pletely 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.
App. 28
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 determi-
nation 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 administra-
tion 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
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
1°This remedy is limited to public school teachers because we
deal here with a specific school teacher statute, sec. 118.22(2).
App. 29
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-
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 adjournmert of a pub-
lic meeting into a closed session shall be made without
public announcement of the genera! nature of the busi-
ness to be considered at such closed session, and no
other business shall be taken up at such closed session.
App. 30
‘*(3) Nothing herein contained shall prevent ex-
ecutive 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 discipline
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 re-
quested by the employe or person charged, investigated
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 requested
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-
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
App. 31
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.
App. 32
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.
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.
See. 111.70(4)(1), Stats., provides as follows:
“Strikes prohibited. Nothing contained in this sub-
chapter shall constitute a grant of the right to strike
by any county or municipa! 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 « 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.
App. 33
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.,
Appeilants,
v.
HORTONVILLE JOINT SCHOOL DISTRICT NO. 1,
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
1 Sec. 118.21 (1), Stats., providing: “The school board shall con-
tract in writing with qualified teachers. .. .”
App. 34
teachers in this state are employees of such school boards
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.°*
2 State ex rel. O'Neil v. Blicd (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. .. .”
3 See: Muskego-Norway C.S.J.S.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. Interfering with, restraining or coercing any municipal
employee 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 per-
manent appointment atfer 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.
4 See: Alston v. School Board of City of Norwalk (4th Cir. 1940),
112 Fed. 2d 992, holding that the right of a negro teacher to de-
claratory 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 that the
negro teacher has entered into a contract with the school board for
the current year to perform teaching services. (Certiorari denied in
311 U.S. 693, 61 Sup. Ct. 75, 85 L.Ed. 448.)
> Board of Education of South Milwaukee v. State ex rel. Reed
(1898), 100 Wis. 455, 462, 76 N.W. 351, holding: “. .. . the rela-
tions and obligations between the relator . . . and the high school
board of said district were purely and strictly of a contractual char-
ee
App. 35
The school board in Hortonviile 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
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.’”
®“Tt is Further Agreed, that this contract incorporates herein by
reference, to have the same effect as if made a part thereof of the
last collective bargaining agreement entered into by and between the
Hortonville Education Association, and said School Board, dated
May 8, 1972, and is subject to all terms and conditions of such col-
lective 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 of Educa-
tion (1973), 58 Wis. 2d 444, 458, 206 N.W. 2d 597.
® Curkeet 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 main-
taining the common schools and in administering the school affairs.
Such duties 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. . . .”
App. 36
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
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 board 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 heen informed by its superin-
® See: Sec. 111.70 (4) (1), Stats. (upheld as constitutionally
valid, applied to tea hers, by majority opinion here), provides:
“Strikes prohibited. Nothing contained in this subchapter shall con-
stitute a grant of the right to strike by any county or municipal em-
ploye and such strikes are hereby expressly prohibited.”
10 Scott v. Joint School District (1881), 51 Wis. 554, 557, 8 N.W.
398, this court 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, holding, where board of vocational education dis-
charged for cause a supervisor of its dental clinic after a hearing,
that, on certiorari to review the action taken by the board, “. . . the
only matter the court could properly consider was whether on the
evidence properly received by the board the charges against the
plaintiff were sustained.”
w
et ee -
-
App. 37
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 contract,
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
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 descinding the contracts of personal service
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-
" Letter from Roger Weihing, President, for the Board of Educa-
tion to individual teachers, March 29, 1974.
2 Td.
8 Resolution, Adopted by the Board of Education, April 2, 1974.
68 Am. Jur. 2d, Schools, sec. 143, page 475, stating: “The prin-
ciples governing contracts generally are applicable to contracts for
the employment 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.”
App. 38
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-
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
1517 Am. Jur. 2d, Contracts, sec. 482, page 951.
16 Hoffmann 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 contract by the other party as to destroy the essential objects
of the contract... .”
17 Ellison, Son & Co. vy. Flat Top Grocery Co. (1911), 69 W. Va.
380, 387, 71 S.E. 391, stating the rule to be “ ‘Generally the failure
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. . . .”’’ Quoting 24 Am. & Eng. Ency. L. 644.
1817 Am. Jur. 2d, Contracts, sec. 503, page 979, stating: “Al-
though contracts do not terminate as a matter of course on a breach,
they may be terminable therefor. . . .”
ee
a ee
eee EL ee
oe ee ewe en ee Ahem. Semmes Be ee ee et
App. 39
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
teachers 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.
1° See: i7 Am. Jur. 2d, Contracts, sec. 485, page 955.
2017 Am. Jur. 2d, Contracts, sec. 501, page 977, stating: “No
hard and fast rule exists as to the right of rescission for cause; the
right usually depends on the circumstances of the particular case.
.. +” See also: 17 Am. Jur. 2d, Contracts, sec. 503, page 980, stat-
ing: “. .. Moreover a party seeking to rescind must show that he
was free from default in relation to the obligation which he claims
the other party failed to perform... .” See also: As to violations of
contract held not to justify rescission: E. L. Husting Co. v. Coca
Cola Co. (1931), 205 Wis. 356, 237 N.W. 85, 238 N.W. 626.
21 Hoffman v. Danielson, supra, footnote 16.
App. 40
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
anpeal, 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-
ing for reversa! 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.
ONS es. OY ete ele = Oa
Ca ke ee ~
a
App. 41
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.
DECISION ON DEFENDANTS’ MOTION FOR SUM-
MARY JUDGMENT TO FIRST CAUSE OF ACTION
NATURE OF PROCEEDINGS:
The plaintiffs filed their criginal 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
App. 42
April 24, 1974. Subsequently on May 31, 1974, the plain-
1 ffs upon leave of this Court and pursuant to a verbal
sreement 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 Sees. 269.45 and 270.-
635, Stats., inasmuch as this Court construed Snowberry v.
Zellmer (1964), 22 Wis.2nd 356; 126 N.W.2d 26, to re-
quire a motion for summary judgment to be made within
forty days of joinder of issue by the original pleadings. 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 Hortonville Board of Education termi-
nated 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
RE ANd ng ll A lg i a LO ttl Ne ea Tale nanan OD A MOE eM we le Nd nn rd Se AE Ma Rk ok a maa
etn ame
App. 43
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 terminate:’’ The requisite allegations are set forth in
the plaintiffs’ amended complaint so as to enable this Court
to deem the present matter a class action as provided for
in See. 60.12 Stats.
One of the defendants is the Hortonville Joint School
District No. 1 which had prior to April 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 Schoo! District No. 1 for either
the 1973-74 and 1974-75 school years.
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 v. St. Paul Fire and Marine Insurance Company,
(1970), 48 Wis. 2nd 305; 179 N.W. 2nd 864, finds it
App. 44
necessary to review in part the amended complaint in
order to determine whether the defendants’ affidavit in
suppor. of their motion for summary judgment contains
the required evidentiary facts so as to entitle the defen-
dants to summary judgment. However, the amended com-
plaint as well as the defendants’ answer, as pleadings, are
not effectual as factual proof and cannot perform the
requisite function of affidavits. Leszczynski v. Surges
(1966), 30 Wis.2nd 534; 141 N.W.2d 261. Only two af-
fidavits 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 summary 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-
tiees 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 curt
rent 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 reason that the Board might consider for
the termination of their employment.”’
nae
~~ ie Bt
App. 45
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 County
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 hearing,
fifty-one teachers three days prior to their scheduled hear-
ing, 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 Friday
(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 contents
of the notice of disciplinary hearings, the dates the notices
were served and the dates of the scheduled disciplinary
hearings no factual controversy exists.
App. 46
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 atiorney
hb) 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-
grap is 9 and 10 thereof the defendan.s 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 plaintiff class. Among those facts are the
plaintiffs’ appearance before the Hortonville Board of
Education with an attorney, the objection of the plaintiffs’
attorney to the insufficiency of the notice without a specified
request as to the additional length of time needed for prep-
aration 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 reasonably 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 notice
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
—s a ee
tine be
App. 47
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 objécted to the Board acting as the de-
cision-maker in their cases, because of its involve-
ment in the very circumstances which gave rise to the
Board’s consideration of the termination of their em-
ployments. 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,
the plaintiffs and the other teachers further requested
the opportunity to examine adversary management
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 at-
torney acted both as counsel to the Board and as
prosecutor, presenting the charges and evidence against
the plaintiffs. No evidence was adduced at the hear-
ings 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:
App. 48
a) counsel for the plaintiffs did object to the suf-
ficiency and adequacy of the disciplinary hearing
notices
b) counsel for the plaintiffs was denied the op-
portunity to question various Hortonville Board of
Education members adversely
e) 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
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 plaintiffs’
counsel.
It should be noted that paragraph 10 of the affidavit of
Michael Wisnoski submitted on behalf of the plaintiffs
. a er O)
App. 49
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
offer of proof and the attempt to adversely examine the
Board of Education members on behaif of all teachers
represented 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 heen
scheduled as shown by exhibit ‘‘C’’ not for April 1st 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 in-
ferences to be drawn from those facts and various state-
ments made hy 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-
App. 50
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 District.
At no time have the piaintiffs, or any other teachers
similarly situated, ever been informed of the eviden-
tiary 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,
paragraph 16 of the defendant affidavit specifically refers
to and identifies the termination notice in question and
thereby incorporated by reference exhibit 2 introduced at
a prior evidentiary hearing conducted by this Court. The
notice 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. Specit-
ically it is found that since March 18, 1974;
You breached your individual employment contract:
You engaged in strike aetivity contrary to Wisconsin
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.’’
App. 51
The defendants’ affidavit furtier 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. Wisnoski 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 Educa-
tion’s resolution to terminate the plaintiff class. Addition-
ally, Mr. Wisnoski states in his affidavit in paragraph 15
that he has personally never been informed of the eviden-
tiary basis for the Board of Education’s conclusion that he
has breached 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’ aff-
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.
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.
ce) 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.
App. 53
g) Lack of advance notice to the Hortonville Ed-
ucation Association concerning the disciplinary hear-
ings and the termination 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
plaintiffs allege that all of the aforesaid due process vio-
lations were done under color of State law, intentionally,
maliciously, 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
Article 1 of the Wisconsin Constitution. As a result, the
plaintiffs 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 liberty in securing employment in the teaching pro-
fession. Such deprivation of procedural due process the
plaintiffs further allege has resulted in irreparable dam-
age to their persons, reputations and financial interests.
As stated by the Court in American Mutual Liability
Insurance Company v. 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.
App. 54
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 teach-
ing employees then employed by said school district
engaged. in an unlawful strike against the defendant
school district; ...”’
Keference to the strike being unlawful is, of course, a
conclusion and not a fact and as such, is inappropriate in
an affidavit requiring evidentiary fact. Sec. 270.635, Stats.
continuing through the remainder of Mr. Weihing’s aft-
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 frame-
work within which this Court can consider the concept 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 government action.”’
EMPLOYER-EMPLOYER 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
See. 11.70(1) (b), Stats., and the Hortonviile Joint School
App. 55
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 See.
11.70(4)(1) which provides:
‘*Nothing contained in this subchapter 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 consti-
tutional 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 employineut 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 termina-
tion of the employer-employee relationship; it is a subse-
quent discharge which severs the employer-employee rela- |
tionship. 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 practice in this
State for a municipal employer to obtain a court injunc-
tion when confronted with a strike. Such a procedure is
based on the existence of an employer-employee relation-
ship. While no longer valid law, See. 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
App. 56
-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’’
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 publie em-
ployment strike as in and of itself terminating the munici-
pal employer-employee relationship.
DUE PROCESS CONCEPT OF PROPERTY AND
LIABILITY
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. See. 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,
App. 57
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,
92 S. Ct. 2701, 33 L. Ed. 548 (1972) involved nonrenewal
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 arbitrarily 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
process stating:
‘‘A person’s interest in a benefit is a ‘property’ in-
terest 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
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.
App. 58
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 individua! where-
in it is stated:
‘*|W |here a person’s good name, reputation, honor
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 U.S.
573, 92 S. Ct. 2707)
In the instant case the charges asserted against the plain-
tiff teachers were that they had breached their individual
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 signif-
App. 59
icant 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 hav-
ing been granted a hearing it must next be determined if
the hearing granted the plaintiff teachers was constitu-
tionally anticeptie within the framework of due process.
This Court has previously found no controverted facts to
exist as to the hearing procedures utilized by the defend-
ants. The concept of due process is not static nor are its
ramifications identical in every situation. The Court in
Arnett v. Kennedy U.S.—— , 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 ~
the affidavits filed in support of and in opposition to the
motion for summary judginent. 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
App. 60
25, 1974, until April 2, 1974, when the Board of Extucation
voted to terminate the employment of the plaintiff class.
After April 8, 1974, the schools were again opened per-
manently 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 superin-
tendent of the Hortonville Joint District No. 1 advising
that the strike was contrary to See. 111.70, Stats., and
further that: ‘‘The School Board can not and will not con-
done 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
judgment 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’
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 existence
of a breach of the individual employment contract and
engagement in an unlawful strike contrary to Wis-
consin law
b) identified who made the charge—Superintendent
Obry
App. 61
ce) advised of possible disciplinary action—termina-
tion 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 al-
leged 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 whether
such notice under the conditions related above were ade-
quate and timely. In Goldberg, supra, the Court held a
due process hearing essentially in terminating welfare bene-
fits 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-
text the principals require that a recipient have time-
ly 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,
App. 62
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 prerequisites to a finding that a
hearing has been granted which comports with ac-
cepted notions of procedural due process. <A fun-
damental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful
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 ade-
quate and timely notice to have been given to the plaintilf
ciass under the then existing condition of foreed school
closings as a result of the prohibited strike. The notice
provided by exhibit ‘*B’’ attached to the defendants’ affi-
davit 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 jaw 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 See. 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 See. 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-
App. 63
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
of a notice of longer duration in order to defend against
such charge. Simply, the plaintiff class either was or was
not op 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 depriva-
tion 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-
App. 64
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 similar 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
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 Superin-
tendent 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 afforded
an opportunity to confront and cross-examine adverse wit-
nesses. Goldberg, supra; Greene v. McElroy, 360 U.S. 474,
79 S. Ct. 1400, 3 U. Ed. 2nd 1377 (1959). The members of
the Hortonville Board of Education on the uncontroverted
facts were not adverse witnesses. The purpose of the
plaintiffs’ attempt to adversely examine the board mem-
bers was stated at the April 1, 1974, hearing which was re-
ported and the transcript thereof incorporated in the de-
fense affidavit in support of the motion for summary judg-
ment. Plaintiffs’ counsel at that hearing was asked to
indicate the nature of the evidence he wished to present
and he responded in this fashion:
**¥os, it goes to bargaining here, and I have some
questions of some of the Board members.’’ (P. 28 of
transcript)
App. 65
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 but to facts involving negotictions
on a variety of issues in the labor dispute; the purpose was
to justify the strike which this Court has deemed |le-
gally impossible. The denial of adverse examination of var-
ious board members in this context was proper.
Considering the dual capacity of the Board of Eduea-
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 conflicting 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
contains 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 among themselves
and concurred that they have done or not done the
same things, all of which would be within the knowl-
edge of the management... .’’ (P. 22 of transcript,
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
App. 66
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 counsel
that they desired one mass hearing instead of individual
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
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 transeript) Plain-
tiffs’ counsel only objected to any legal conelusions being
drawn from such factual inference. Whereupon the Board
of Education rested and the plaintiffs as a body attempted
to adversely examine some members of the Board and
made an offer of proof as was discussed above in connec-
tion with collective bargaining issues.
Also discussed earlier in this decision was the contents
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
App. 67
where governmental action seriousiy 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 sv
that he has an opportunity to show that it is untrue.
(emphasis added) (360 U.S. 496, 79 S. Cv. 1413)
In the instant situation the plaintiff class knew the Board
of Edueation had before it the information of Superin-
tendent Obry that the teachers were on strike as noted in
the notice for disciplinary hearings dated March 29, 1974.
Also 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’’ aad is attached to the defend-
ants’ affidavit in support of the motion for summary
judgment, that the Board of Education had personal knowl-
edge of the existing strike. s stated by plaintiffs’ coun-
sel 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
anyone to state on the record that the plaintiff class was
engaged in a strike. The plaintiff class was warned that
their refusal to answer questions would result in an in-
ference
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.