Hein v. Board of Education, Unified School District No. 238

698 P.2d 388, 10 Kan. App. 2d 303, 1985 Kan. App. LEXIS 705
CourtCourt of Appeals of Kansas
DecidedApril 18, 1985
DocketNo. 56,803
StatusPublished
Cited by1 cases

This text of 698 P.2d 388 (Hein v. Board of Education, Unified School District No. 238) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hein v. Board of Education, Unified School District No. 238, 698 P.2d 388, 10 Kan. App. 2d 303, 1985 Kan. App. LEXIS 705 (kanctapp 1985).

Opinion

Meyer, J.:

This is a declaratory judgment action in a teacher nonrenewal case. The school board appeals from the trial court’s order granting summary judgment in favor of plaintiff Jerome Hein, thereby awarding the teacher reinstatement and damages.

At issue in this appeal are the due process provisions of the Teacher Tenure Law, K.S.A. 72-5436 et seq. Specifically, under the Teacher Tenure Law, an individual teacher’s contract is deemed to continue for succeeding years “unless written notice of termination or nonrenewal is served as provided in this section.” K.S.A. 1984 Supp. 72-5437. Under the law as it existed at the time notice of Hein’s nonrenewal was sent, such written notice had to be served upon the teacher by April 15th of the year of termination. K.S.A. 72-5437. No contention is made that the notice sent Hein was other than timely served.

The specific procedure for serving a notice of nonrenewal and the content such form must take is outlined in K.S.A. 72-5438:

“Whenever a teacher is given written notice of intention to not renew the teacher’s contract as provided in K.S.A. 72-5437, or whenever such a teacher is terminated before the end of his or her contract term, the teacher shall be given a written notice of the proposed nonrenewal or termination including (1) a statement of the reasons for the proposed nonrenewal or termination, and (2) a [304]*304statement that the teacher may have the matter heard by a hearing committee, upon written notice filed with the clerk of the board of education or the board of control, or the secretary of the board of trustees within fifteen (15) days from the date of such notice of nonrenewal or termination that he or she desires to be heard and designating therein one hearing committee member.”

Did the school board comply with the provisions of K.S.A. 72-5438 when it discharged Hein? An examination of the “notice” sent answers the query. The “notice” sent Hein provided as follows:

“As previously discussed with you on Thursday, April 7, 1983, this motion is taken from the minutes of the regular monthly meeting of the Board of Education of USD-238.
‘It was moved and seconded that Mr. Hein be notified that due to staff reduction his position has been eliminated. The new position will be English,
Speech, Drama and Creative Writing for next school term. Motion carried 7-0.’ “If you have questions, please feel free to contact me.
Sincerely,
/s/ J. S. Wagner”

This letter does not state specifically that Hein’s individual teaching contract was being nonrenewed for the 1983-84 school year and it does not inform him that he has a statutory right to a due process hearing on the board’s decision. The school board, by its own admission in its answer to Hein’s petition for declaratory judgment, acknowledges its failure to follow the statutory requirements of K.S.A. 72-5438.

Hein makes no contention that the school board acted arbitrarily or capriciously in its decision to nonrenew his contract, and he does not contend that he was disallowed a full and fair hearing as provided by the due process statutes. Instead, Hein argues that the “notice” of April 12,1983, was deficient and that, therefore, the provision of K.S.A. 1984 Supp. 72-5437 mandating that a contract for the next school year shall continue unless notice is served as provided “in this section” requires the extension of his contract for another year regardless of any subsequent due process hearing. We disagree.

Although strict interpretation of K.S.A. 72-5436 et seq. would require this court to find the noncompliance with K.S.A. 72-5438 required reinstatement of Hein to his teaching position and awarding him damages, we conclude that the subsequent due process hearing renders any issue with regard to the propriety of the notice of hearing moot. In this we note that although Hein [305]*305was not specifically told he was nonrenewed and although the April 12th notice did not fully comply with K.S.A. 72-5438, Hein nevertheless, within the statutorily provided 15-day period, on April 25th requested a due process hearing on his nonrenewal. Thus, despite deficient notice, Hein exercised all rights he otherwise would have been entitled to had proper notice been given.

It is the duty of our courts “to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court.” City of Roeland Park v. Cross, 229 Kan. 269, 270, 623 P.2d 1332 (1981). (Citations omitted.) The rule was also summarized in Hannon v. Maynard, 3 Kan. App. 2d 522, 523, 597 P.2d 1125 (1979), as follows:

“ ‘The general rule is that appellate courts do not decide moot questions or render advisory opinions. In re Browning, 1 Kan. App. 2d 652, Syl. ¶ 1, 573 P.2d 1095 (1977). The mootness doctrine is one of court policy (Knowles v. State Board of Education, 219 Kan. 271, Syl. ¶ 2, 547 P.2d 699 [1976]). This policy recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and property which are actually involved in the particular case properly brought before it, and to adjudicate those rights in such manner that the determination will be operative, final and conclusive. 1 C.J.S., Actions § 17.’ ”

We must next address whether Hein’s repeated attempts at the due process hearing and before to preserve his right to object to the insufficiency of the notice prevent the subsequent due process hearing from rendering Hein’s claim moot. We conclude they do not.

While Hein asserts his appearance at the due process hearing was “special” only, and that he did not waive his rights, we deem it important to set out his letter to the school board as follows:

“Kensington, Kansas 66951

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Related

Hein v. Board of Education
733 P.2d 1270 (Court of Appeals of Kansas, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
698 P.2d 388, 10 Kan. App. 2d 303, 1985 Kan. App. LEXIS 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hein-v-board-of-education-unified-school-district-no-238-kanctapp-1985.