Lang v. Lee

639 S.W.2d 111, 6 Educ. L. Rep. 1183, 1982 Mo. App. LEXIS 3182
CourtMissouri Court of Appeals
DecidedJuly 6, 1982
DocketNo. WD 33006
StatusPublished
Cited by8 cases

This text of 639 S.W.2d 111 (Lang v. Lee) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lang v. Lee, 639 S.W.2d 111, 6 Educ. L. Rep. 1183, 1982 Mo. App. LEXIS 3182 (Mo. Ct. App. 1982).

Opinion

TURNAGE, Judge.

James Dean Lang was a permanent teacher in the South Callaway R-II School District. Pursuant to notice and hearing, the Board held a hearing to determine whether or not Lang’s permanent status should be terminated. At the conclusion of the hearing, the Board made findings of fact and conclusions, and terminated Lang. Lang appealed to the circuit court which affirmed the action of the Board.

On this appeal Lang contends the action of the Board should be reversed because the Board failed to grant (1) a continuance because a criminal case was pending against him at that time; (2) the Board received hearsay evidence; and (3) the Board’s attorney improperly influenced rulings by the Board. Affirmed.

Lang was given notice that he was charged with immoral conduct under § 168.114.1(2), RSMo 1978, and that a hearing would be held on whether or not to terminate his status as a permanent teacher for that reason. The charges specified that in March and April, 1980, Lang took indecent and immoral liberties with a 13-year old male by showing him pornographic magazines and movies and by placing his hands on the boy’s genital area. The charges also specified that Lang had taken indecent and immoral liberties with at least four other boys under the age of 18.

The hearing was held on August 15,1980. At the beginning of the hearing, Lang’s counsel requested a continuance of one week because the conduct involved in the charges pending before the Board was also the subject of a criminal charge pending against Lang. The attorney stated there was a “very good chance” that the criminal case would be resolved the following Monday, which would be well before the expiration of one week. The attorney further stated that if the charges were not resolved before the expiration of the week, he was sure the Board would have Lang’s resignation by the end of that time. The attorney told the Board that Lang could not testify before the Board without such testimony being available for use in the criminal case and he wanted Lang to be able to testify before the Board. The Board denied the request and thereupon Lang’s attorney stated that in anticipation of that ruling, he was authorized to deliver and to read a letter of resignation from Lang. The letter denied the charges and stated that Lang was not ruling out further lawsuits against everyone involved in the proceedings. The [113]*113letter did not state that it was a resignation, although the attorney told the Board that he was authorized by Lang to say that it was a resignation. The Board refused to accept the resignation and directed the hearing to proceed.

The Board heard the testimony of two police officers and received a copy of an investigative report from the Jefferson City Police Department. The Board also received a copy of a written statement made by Lang to the police, and received in evidence several magazines, a movie projector and reels of film. Lang did not appear at the hearing.

The evidence presented to the Board indicated that on two occasions a 13-year old boy had gone to Lang’s home in Jefferson City for the purpose of performing odd jobs, and, in the process, Lang had shown him pornographic magazines and movies and had placed his hands on the boy’s genitals.

No issue is made as to the voluntary nature of the statement Lang gave to the police officers, and the evidence was that the statement was given only after Lang had been given his Miranda warnings. In the statement Lang admitted having the magazines in his home which he allowed the boy to examine, and also admitted showing him the pornographic movies. He stated he told him he would show him the movies until the boy became excited. He admitted placing his hands on the boy’s crotch. In the statement, Lang admitted having had sexual contact between 1971 and 1980 with four other boys who were between the ages of 14 and 18. He stated this relationship lasted for 14 months with two of the boys, five months with another, and three months with the fourth. He stated all of these contacts took place at his home.

Lang first contends the Board abused its discretion in denying his request for a one-week continuance because the denial infringed his right of due process since it required him to forego his right to testify before the Board because such testimony could have been used in the trial of the criminal charges pending against him. Lang does not rely upon any Fifth Amendment ground. The loss of opportunity to testify in a civil proceeding because of a fear that such testimony may be used in a criminal proceeding was held not to be a denial of Fifth Amendment rights in Cox v. McNeal, 577 S.W.2d 881, 887-8[4] (Mo.App.1979). The court there stated that the loss of an opportunity to testify in a person’s own defense in a civil hearing is not protected by the Fifth Amendment when such hearing does not involve a requirement to answer questions or lose employment as was involved in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and similar cases.

It is well to note that the present case does not bear any factual resemblance to Garrity and cases of that nature because Lang’s permanent teacher status could not be terminated on the ground that he did not testify at his termination hearing. Rather, in this case, the Board was required to have competent and substantial evidence presented to prove the charges against him upon which to base a termination of Lang’s teacher status. Aubuchon v. Gasconade Cty. R-I Sch. Dist., 541 S.W.2d 322, 326[4-8] (Mo.App.1976).

The precise issue presented here of whether or not Lang’s due process rights were infringed by the Board insisting that the hearing proceed before the criminal charges had been resolved was dealt with in Gabrilowitz v. Newman, 582 F.2d 100 (1st Cir. 1978) and Arthurs v. Stern, 560 F.2d 477 (1st Cir. 1977) cert. den. 434 U.S. 1034, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978). In Gabrilowitz a college student faced a disciplinary hearing at a state university while criminal charges were pending against him arising out of the same incident. The court distinguished Garrity by stating that the silence of the student was not considered as an admission of guilt and evidence was required to be adduced to prove the case against the student. The court held the student was required to make a choice of whether or not to testify at the disciplinary hearing with the realization that if he did, his testimony might be used against him in [114]*114a criminal case. The court observed that even though this was a difficult choice, difficult choices are not unknown in the legal system. Although the court held the student was entitled to counsel to assist him in making the choice of whether or not to testify in the disciplinary proceeding, the court held that the requirement that the choice be made did not deny the student due process.

In Arthurs a physician faced a civil hearing to determine whether or not his license to practice should be suspended or revoked for writing illegal prescriptions while criminal charges arising out of the same transaction were pending.

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Bluebook (online)
639 S.W.2d 111, 6 Educ. L. Rep. 1183, 1982 Mo. App. LEXIS 3182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lang-v-lee-moctapp-1982.