Martin v. Harrah Independent School District ( 1975 )

HODGES, Vice Chief Justice.

This is an appeal by the Harrah Independent School District Board of Education and its superintendent from the issuance of a Writ of Mandamus which ordered the reinstatement of appellee, Mary Jane Martin (teacher) as a tenured teacher and to renew her contract for continuing appointment for the 1974-1975 school year.

The teacher’s contract specifically required she obey and follow the rules and regulations of the Harrah Board of Education. After several discussions with various board members in 1972, she was given notice in September, 1973, that her failure to comply with the continuing education rule which required teachers with a bachelors degree to earn five semester hours every three years would result in non-renewal of her teaching contract if she did not comply. Thereafter teacher was contacted numerous times during the course of the school year in an effort to obtain her compliance or to determine a reasonable alternative. She appeared at many board meetings and at all times wilfully and without hesitancy declined to follow the rule of the board of education, and at no time offered any alternative solution. On April 10, 1974, she was provided notice of non-renewal. The cause was given as wilful neglect of duty for consistent and wilful failure to comply with the rules and regulations of the board of education.

A hearing before the Harrah Board of Education was held in accordance with 70 O.S.1971 § 6-122. The earlier decision of the board was sustained.

The teacher filed an administrative appeal to the Professional Practices Commission. Concurrently, she filed a Petition in the District Court of Oklahoma County asking for reinstatement and damages. After a hearing, the Professional Practices Commission rendered its decision reaffirming the decision of the local board of education. The teacher did not request a full hearing of the matter before the State Board of Education as provided by 70 O. S.1971 § 6-122, nor did she seek judicial review under the Administrative Procedures Act, 75 O.S.1971 § 318(1) (2). The trial court subsequently entered its order reinstating the teacher and issued a Writ of Mandamus.

It is urged on appeal that the teacher had failed to exhaust her administrative remedies and, therefore, the trial court was without jurisdiction. We agree.

As a general rule, administrative remedies should be resorted to before recourse is made to the courts. Remedies provided by statute should be pursued before other remedies are sought.

It has long been established in Oklahoma that exhaustion of statutory administrative remedies is a jurisdictional prerequisite for resort to the courts. Sanders v. Oklahoma Employment Security Commission, 200 Okl. 366, 195 P.2d 272 (1948); Speaker v. Board of County Com’rs of Oklahoma County, Okl., 312 P. 2d 438 (1957). It is only where administrative remedies are not adequate that the courts may take jurisdiction prior to actual exhaustion of administrative remedies, and then a strong showing is required as to the alleged inadequacy of a prescribed administrative remedy. National Indian Youth Council v. Morton, 363 F.Supp. 475 (W.D.Okla.1973). See also 73 C.J.S. Public Administrative Bodies and Procedure § 173 p. 515.

The rule which requires exhaustion of administrative remedies, before one is entitled to relief for supposed or threatened injury, is a well settled rule of judicial administration to aid in the orderly administration of justice and to prevent transfer to the courts of duties imposed by law on administrative agencies. Macauley v. Waterman S. S. Corporation, 327 U.S. 540, 543, 66 S.Ct. 712, 90 L.Ed. 839, 842 (1946).

The administrative procedure for notice, hearing, and appeal by a tenured teacher is outlined in 70 O.S.1973 Supp. § 6-122: right to cross-examine and offer any evidence to refute the statements and a reconsideration of the action theretofore made by the board.

“The failure to renew a contract by the board of education of any teacher who has completed three (3) years shall not be effective, and such contract shall be renewed unless there is served on such teacher a written statement by such board containing a statement of causes for such action, which must include one of the following: immorality, wilful neglect of duty, cruelty, incompetency, teaching disloyalty to the American Constitutional system of government, or any reason involving moral turpitude. Such teacher shall be afforded an opportunity to appear before such board and confront his or her accusers, having the

“Said notice of nonrenewal and the statement of causes shall be mailed to the teacher prior to the 10th day of April notifying said teacher of the non-renewal and a statement of causes. Said cause shall be set within twenty (20) days after receipt of said notice for a hearing before the board of education.

“Before final decision of the matter the teacher shall be allowed to appeal the action of the board to the Professional Practices Commission. Such commission shall allow the teacher to be heard and after reviewing the facts shall report its recommendation to the State Board of Education. Upon the receipt of the recommendation of the Professional Practices Commission, the State Board of Education, if requested by the teacher, shall fix a date, hour and place for hearing of the matter within ten (10) days and notify the teacher of such time and place. At such hearing both the teacher and the local board of education shall be advised of the action of the Professional Practices Commission and shall be allowed to be heard. Such hearing may be held in executive session if agreed on by all parties concerned.

“After review of the matter the State Board of Education shall issue its decision either confirming the action of the local board of education or issuing the finding that dismissal of said teacher was without sufficient cause and that said teacher was without fault in the premises, which decision shall be final. A finding that a teacher was dismissed without sufficient cause shall automatically extend for one year the contract of the teacher involved, during which period of time the board of education and the teacher shall negotiate in an effort to resolve their differences prior to April 10 of the succeeding year.”

The State Board of Education’s decision is the final administrative determination of the matter. It is subject to judicial review under the Administrative Procedures Act. Adams v. Professional Practices Commission, 524 P.2d 932, 933 (Okl.1974). The pertinent statute, 75 O.S.1971 § 318(1), (2) provides:

“(1) Any person or party aggrieved or adversely affected by a final order in an individual proceeding, whether such order is affirmative or negative in form, is entitled to certain, speedy, adequate and complete judicial review thereof under this Act, but nothing in this Section shall prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions. Neither a motion for new trial nor an application for rehearing shall be prerequisite to secure judicial review.

“(2) The judicial review prescribed by this Section, as to orders rendered in individual proceedings by agencies whose orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 19, 20, 21, 22, 23 and 24 of this Act, and the rules of the Supreme Court. In all other instances, proceedings for review shall be instituted by filing a petition, in the district or superior court of the county in which the agency or institution is located in which the property interest affected is situated or the in district court of the county in which the agency or institution is located, within thirty (30) days after the appellant is notified of the order as provided in Section 12 hereof. Copies of the petition shall be served upon the agency and all other parties of record, and proof of such service shall be filed in the court within ten (10) days after the filing of the petition. The court, in its discretion, may permit other interested persons to intervene.”

The United States Supreme Court in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) set forth several reasons for the rule of exhaustion of administrative remedies before resort to the courts: Agency decisions frequently require expertise or are discretionary in nature. The agency should be given the first opportunity to either exercise discretion or apply expertise. It is generally more efficient to permit the administrative process to move forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages (the same reasons are the foundation of judicial rules which restrict interlocutory appeals). At page 194, 89 S.Ct. at page 1663 of the opinion the court stated:

“ * * * In addition, other justifications for requiring exhaustion in cases of this sort have nothing to do with the dangers of interruption of the administrative process. Certain very practical notions of judicial efficiency come into play as well. A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene. And notions of administrative autonomy require that the agency he given a chance to discover and correct its own errors. Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.”

Agencies created for regulation of particular subject matter should not be circumvented in cases which raise issues of fact not within the conventional experience of judges or which require the exercise of administrative discretion. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and limited functions of review by the judiciary are more rationally exercised by preliminary resort to the administrative agency for ascertaining and interpreting the circumstances underlying the legal issues to agencies which are better equipped than courts by specialization and insight gained through experience and a more flexible procedure. Weinberger v. Bentex Pharmaceuticals, 412 U.S. 645, 654, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973).

The doctrine requiring administrative relief to be sought before resorting to the courts does not require merely the initiation of prescribed administrative remedies, but that they be pursued to their final outcome before judicial intervention is sought. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767, 773, 67 S.Ct. 1493, 1500, 1503, 91 L.Ed. 1796, 1806, 1809 (1947).

We are cognizant of the fact that the Administrative Procedures Act provides that nothing in 75 O.S.1971 § 318 shall prevent resort to other means of review, redress, relief, or trial de novo, available because of constitutional provisions. We do not believe this language permits simultaneous resort to the courts for a writ of mandamus and to the administrative agency for the following reasons: (1) Although the power to issue a writ of mandamus by appellate courts under Art. 7 § 4 of the Oklahoma Constitution is constitutional, we have never determined the right to the writ to be a constitutional remedy, rather its relief and the power of the district court to issue the writ are of a statutory nature. See 12 O.S.1971 § 1451, (2) Administrative process of the customary sort is as much due process as is judicial process. Due process of law does not necessarily require the interference of judicial power. It has been held repeatedly that administrative procedure is within the power of the state to provide, and that when opportunity to be heard is given, it satisfies the requirements of due process of law especially when, as in this case, the right of review in the courts is given. No one has a vested right in any mode of procedure so long as a substantial and efficient remedy is provided, Crane v. Hahlo, 258 U.S. 142, 147, 42 S.Ct. 214, 66 L.Ed. 514 (1922); Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092 (1904). (3) School authorities have the right and duty to screen teachers as to their fitness to maintain the integrity of the schools as a part of ordered society. Due process is not violated by the allocation of functions between the courts and administrative agencies. The courts exercise complete judicial review of administrative dismissals of school teachers and a dismissal can be sustained if the court finds support for the grounds relied upon by the dismissing school board. Beilan v. Board of Education of Philadelphia, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); (4) A writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of law. Mandamus is an extraordinary remedy resorted to where the usual mode of procedure cannot furnish desired relief. It is only if the statutory remedy is not adequate to protect the rights of the plaintiff that a writ of mandamus may be issued. Oklahoma Natural Gas Co. v. White Eagle Oil Co., 312 P.2d 879 (Okl.1957); State v. Swan, 139 Okl. 204, 281 P. 803 (1929); 12 O.S.1971 § 1452. Mandamus will not lie to review the decision of an administrative board where the effective remedy of judicial review may be had by appeal. Melton v. City of Durant, 521 P.2d 1372 (Okl.1974).

The presence of constitutional questions coupled with a sufficient showing of inadequacy of prescribed administrative relief and of threatened or impending irreparable injury resulting from delay incident to following the prescribed procedure has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention. However, this rule is not one of mere convenience or ready application. Where the intent of the statute clearly requires administrative determination in advance of judicial action a strong showing is required, both of inadequacy of the prescribed procedure and of impending harm to permit short-circuiting of the administrative process. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. p. 773, 67 S.Ct. 1493, supra.

Compliance with the procedures delineated by the pertinent statutes not only accords due process to the teacher, but avoids a multiplicity of suits. The Administrative Procedures Act, 75 O.S.1971 § 322(1) (a)-(d) provides adequate relief for the resolution of any constitutional questions raised in the case at bar by judicial review:

“(1) In any proceeding for the review of an agency order, the Supreme Court or the District or Superior Court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are:

(a) in violation of constitutional provisions ; or

(b) in excess of the statutory authorir ty or jurisdiction of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law;”

We believe in the case before us an adequate and speedy remedy was supplied by conformity with the applicable statutes, 70 O.S.1973 Supp. § 6-122, 75 O.S.1971 §§ 318, 322.

An exception to the rule is a proceeding in federal courts under the provisions of the Civil Rights Act, 28 U.S.C. § 1343, 42 U.S.C. § 1983. These statutes give a federal right of action for the deprivation of any right, privilege or immunity secured by the U. S. Constitution. Relief under the Civil Rights Act provides a supplemental remedy to any state remedy and relief under the act may not be defeated because of failure to exhaust administrative remedies provided under state law. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 88 S. Ct. 526, 19 L.Ed.2d 647 (1967); Bowles v. Robbins, 359 F.Supp. 249, 256 (D.Vt.1973). These provisions were not exercised in the case before us.

We, therefore, conclude when the statute prescribes a particular method of review of an administrative action a litigant must seek judicial review in the manner prescribed and may not invoke the original jurisdiction of a court by an independent proceeding. An independent action is not permissible where the decision of the agency is judicially reviewable unless it fails to provide an adequate remedy or an action is brought in federal court under the Civil Rights Act.

We find the trial court was without jurisdiction to issue a writ of mandamus because of the failure by the teacher to utilize the prescribed administrative procedure which afforded a plain, adequate and speedy remedy at law.

Although appellee raised the question of the applicability of the Open Meeting Law, 25 O.S.1971 § 201, to the meeting of the school board at which the decision was again reached not to renew her contract, violations of this law were not considered determinative of the issuance of the writ. Rather, the court found it not to be necessary to its conclusions. This question was not raised as an issue on appeal by the petition in error, nor was it urged by appellee as the basis of a counter appeal.

We have consistently held that errors argued in the brief allegedly occurring at the trial which were not presented by the petition in error or by cross petition will not be considered on appeal. Fowler v. Swank, 78 Okl. 150, 189 P. 194 (1920); Ramsey Oil Co. v. Burbage, 172 Okl. 573, 46 P.2d 538 (1935); Roberts v. Roberts, 357 P.2d 980 (Okl.1961).

Reversed.

WILLIAMS, C. J., and DAVISON, LAVENDER and BARNES, JJ., concur. IRWIN, J., concurs in result. DOOLIN, BERRY and SIMMS, JJ., dissent.