Richards v. Board of Education

206 N.W.2d 597, 58 Wis. 2d 444, 1973 Wisc. LEXIS 1482
CourtWisconsin Supreme Court
DecidedMay 1, 1973
Docket303
StatusPublished
Cited by29 cases

This text of 206 N.W.2d 597 (Richards v. Board of Education) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richards v. Board of Education, 206 N.W.2d 597, 58 Wis. 2d 444, 1973 Wisc. LEXIS 1482 (Wis. 1973).

Opinions

Connor T. Hansen, J.

The following issues are determinative of this appeal:

1. Is the defendant’s refusal to relate the reasons for plaintiff’s dismissal as basketball coach and to afford plaintiff a hearing thereon in violation of the due process clause of the fourteenth amendment of the Constitution of the United States ?

2. Did the defendant violate state law in failing to give preliminary notice in writing to plaintiff, pursuant to sec. 118.22 (8), Stats., that his co-curricular assignment would not be renewed ?

3. Does the master agreement between the defendant and the Sheboygan Education Association require a state[451]*451ment of the reasons for dismissal and a hearing thereon?

This court has held that, in the absence of civil service regulations or properly authorized statutory rules governing labor relations, a municipal employee has no tenure in his public service. Adamczyk v. Caledonia (1971), 52 Wis. 2d 270, 190 N. W. 2d 137. In Adamczyk, supra, at page 274, this court stated:

“In the case of State ex rel. Wattawa v. Manitowoc Public Library Board (1949), 255 Wis. 492, 39 N. W. 2d 359, a city librarian sought to have her discharge vacated. This court pointed out:
“ ‘In the absence of tenure rights the right to hire carries the concomitant of the right to fire. This power may be exercised by the board arbitrarily and without cause. . . .’ (P. 493)
“The court further stated:
“ ‘The board having power to discharge without cause, even though it be done unfairly and unreasonably, the courts have no right to interfere. The alternative writ must be quashed because the petition upon which it is based fails to state a cause of action.’ (P. 494)
“In the case of Richmond v. Lodi (1938), 227 Wis. 23, 277 N. W. 620, the manager of the village waterworks brought an action for damages for an improper discharge. The court sustained the village’s demurrer, concluding that the plaintiff had failed to state a cause of action. The court said :
“ ‘The commission is authorized to appoint the manager and fix his compensation. The word “appoint” completely expresses the power of the utility commission as to the manager’s tenure. Under such provisions, the power to remove at pleasure is implied.’ (P. 25)”

In Adamczyk, supra, this court further held that the municipality was empowered to discharge its employee without prior notice and without the requirement of a common-law hearing, and that the municipality was powerless to abrogate by contract its authority to terminate the services of an employee at its pleasure.

[452]*452This case is in harmony with the traditional principle that governmental employment, in the absence of legislation, can be revoked at will of the appointing officer.4

As we view this case, the substantive and principal issue is whether the plaintiff, a teacher, who was offered his basic teaching contract, is entitled to notice and hearing for his nonretention to a nontenured co-curricular assignment for which he receives additional compensation.

Due process.

Plaintiff contends that defendant’s refusal to relate the reasons for his dismissal as basketball coach and to extend a hearing to him was in violation of the due process clause of the fourteenth amendment of the United States Constitution.

It is our conclusion that this case is controlled by Board of Regents v. Roth (1972), 408 U. S. 564, 92 Sup. Ct. 2701, 33 L. Ed. 2d 548. The Roth Case concerned the nonretention of a nontenured faculty member in the Wisconsin State University system. It determined that a nontenured faculty member is not entitled to the procedural due process requirements encompassed by the fourteenth amendment. Mr. Justice Stewart, speaking for the United States Supreme Court, stated on pages 569-571:

“The requirements of procedural due process apply only to the deprivation of interests encompassed by the [453]*453Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.
“The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent’s interest in re-employment at Wisconsin State University — Oshkosh outweighed the University’s interest in denying him reemployment summarily. 310 F. Supp., at 977-979. Undeniably, the respondent’s re-employment prospects were of major concern to him — concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake. See Morrissey v. Brewer, ante, p. 471, at 481. We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.”

Roth, supra, further held that the terms “liberty” and “property” are among the great constitutional concepts purposely left to gather meaning from experience, and for that reason the “wooden” distinction between “rights” and “privileges,” that once seemed to govern the application of procedural due process, has been fully and finally rejected.5 In discussing whether the state’s refusal to re-employ the teacher implicated interests in “liberty,” the court, on pages 572 and 573, stated:

“ ‘While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations [454]*454of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.’ Meyer v. Nebraska, 262 U. S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U. S. 497, 499-500; Stanley v. Illinois, 405 U. S. 645.
“There might be cases in which a State refused to reemploy a person under such circumstances that interests in liberty would be implicated. But this is not such a case.

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Bluebook (online)
206 N.W.2d 597, 58 Wis. 2d 444, 1973 Wisc. LEXIS 1482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-board-of-education-wis-1973.