Gallup v. Superintendent of Public , 172 Mont. 400 ( 1977 )

No. 13459
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1977
GRANT R . GALLUP,
P l a i n t i f f and A p p e l l a n t ,
SUPERINTENDENT O PUBLIC INSTRUCTION
F
of t h e S t a t e o f Montana,
Defendant and Respondent.
Appeal from: D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t ,
Honorable Gordon R. B e n n e t t , Judge p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t :
A s t l e and A s t l e , K a l i s p e l l , Montana
David A s t l e a r g u e d , K a l i s p e l l , Montana
For Respondent :
W. Corbin Howard, Helena, Montana
For Amicus C u r i a e :
Cannon and G i l l e s p i e , Helena, Montana
R i c h a r d G i l l e s p i e a r g u e d , H e l e n a , Montana
Submitted: April 18, 1 9 7 7
Decided:
MAY - 4 lgn
Filed:
MAY . i 917
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from an order of the district court,
Lewis and Clark County, granting defendant's motion to dismiss
with prejudice.
Several issues are presented by plaintiff Grant R. Gallup,
but we find the controlling issue to be whether his rights and
remedies in this matter were foreclosed by his failure to timely
pursue proper legal remedies in the district court from a decision
of the state superintendent affirming the termination of his
tenure.
Gallup in 1973 was a tenured teacher of School District No.
9, Glacier County, Montana, having taught there for 9 years. In
September 1973, the board of trustees of the district dismissed
him pursuant to section 75-6107, R.C.M. 1947, which provides for
dismissal of a teacher during the contract term.
Gallup appealed the decision to the superintendent of schools
o i Glacier County, who, following a hearing, reversed the board.
The board of trustees appealed that decision to the state superin-
tendent who upheld the decision of the county superintendent. That
decision was appealed to the district court which reversed the deci-
sion of the state superintendent. Gallup appealed to this Court
and in a decision dated December 21, 1976, the Court reversed the
district court's judgment and affirmed that of the state superin-
tendent of public instruction reinstating Gallup for the remainder
or his 1973-74 contract. See: Board of Trustees of School District
No. 9, Glacier County v. Superintendent of Public Instruction,
oL the State of Montana and Grant R. Gallup, Mont . 9
557 P.2d 1048, 33 St.Rep. 1221.
: i Ylarch 13, i914, when G a l l u p ' s case was s t i l l b e f o r e t h e
h
G l a c i e r County s u p e r i n t e n d e n t on t h e d i s m i s s a l o f September 1973,
t h e board of t r u s t e e s met f o r t h e purpose of renewing t e a c h e r s r
c o n t r a c t s f o r t h e coming 1974-75 school y e a r . The board voted
t o t e r m i n a t e G a l l u p ' s tenured s e r v i c e a t t h e end of t h e 1973-74
school y e a r pursuant t o s e c t i o n 75-6103, R.C.M. 1947. W note
e
t h a t i n September 1973, t h e board terminated all up's c o n t r a c t
under s e c t i o n 75-6107, R.C.M. 1947. The March 13, 1974, a c t i o n
taken by t h e board was under a d i f f e r e n t s t a t u t e and d u r i n g t h e
pendency of t h e f i r s t appeal. A t t h i s point i n the case the
board chose t o t e r m i n a t e any f u t u r e employment w i t h Gallup,
r e g a r d l e s s of t h e outcome of t h e f i r s t c a s e . This d e c i s i o n was
communicated t o Gallup by l e t t e r d a t e d March 19, 1974. On
March 25, 1974, Gallup demanded reasons f o r h i s t e r m i n a t i o n and
t h e board gave e i g h t reasons. A t a h e a r i n g b e f o r e t h e board
on A p r i l 26, 1974, Gallup appeared w i t h counsel b u t r e f u s e d t o
testify. A f t e r he l e f t , t h e board heard evidence and terminated
h i s s e r v i c e s a s a tenured t e a c h e r f o r t h e school year 1974-75.
T h e r e a f t e r Gallup appealed t h e b o a r d ' s d e c i s i o n t o t h e
G l a c i e r County s u p e r i n t e n d e n t of schools. Both p a r t i e s appeared
a t t h e h e a r i n g and s t i p u l a t e d t h a t two q u e s t i o n s should be con-
s i d e r e d and t h a t t h e t r a n s c r i p t of t h e h e a r i n g b e f o r e t h e board
of t r u s t e e s would provide t h e r e l e v a n t background. The county
s u p e r i n t e n d e n t found t h e charges unsupported and ordered Gallup
reinstated. The board appealed t o t h e s t a t e s u p e r i n t e n d e n t , who
reversed t h e county s u p e r i n t e n d e n t . The d e c i s i o n of t h e s t a t e
s u p e r i n t e n d e n t was d a t e d November 1 4 , 1975. N appeal was made
o
t o t h e d i s t r i c t c o u r t u n t i l May 1 7 , 1976.
S e c t i o n 75-5709, R.C.M. 1947, a s amended by Sec. 1, Ch.300,
L.1974, i s controlling. It provides i n p e r t i n e n t p a r t :
'x The decision of the superintendent of public
instruction shall be final, subject to the proper
Legal remedies in the state courts. Such proceedings
-.shall be commenced no later than sixty (60) days after
the date of the decision of the superintendent of public
instruction." (Emphasis povided. )
Lzr a recent case, Schweigert v. Board of Trus tees, 163
Mont. 29, 515 P.2d 85, this Court held that where a tenured
teacher did not follow statutory procedure in making a written
request within ten days for a statement of reasons and a hearing,
her rights under the statute expired and she was foreclosed
from thereafter bringing suit challenging the decision not to
renew her contract. In the instant case more than six months
passed and Gallup cannot at this late date breathe life into his
complaint.
Having failed to pursue his statutory administrative remedies
within the time allowed by law, Gallup's right to contest the
termination of his employment as a tenured teacher was at an end.
The statutory time limitations are mandatory to provide for
prompt resolution of teacher employment controversies in the
public interest, as well as the respective interests of the
principals involved.
The judgment of the district court is affirmed.
We Concur:
I
J Justice*
- 6 - u
Chief