Schulze v. Board of Education ( 1977 )

Fromme, J.,

dissenting and concurring: The right of a school board to hire and fire a teacher is not covered by the grant of authority in K. S. A. 72-8205. That statute relates to the general powers of the board. When this action arose in 1973, the right to hire and fire a teacher was covered by the Continuing Contract Law, K. S. A. 72-5410, et seq. A due process hearing was required under the statute if the board was attempting to terminate a teacher’s contract. See Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 28, 542 P. 2d 339. The board did not proceed under K. S. A. 72-5411; instead it requested the teacher’s resignation. The general district meeting which followed was not a quasi-judicial proceeding recognized in the law. However, the board was acting within its authority and jurisdiction as a public body in accepting and investigating a complaint against Mr. Schulze, and an absolute privilege attaches to its action regardless of the nature of the proceeding. A school board in hearing the general run of complaints is acting in the public service.

Absolute privilege is recognized in cases where 'the public service or the administration of justice requires complete immunity as in legislative, executive or judicial proceedings, the occasion for the immunity being not so much for those engaged as for the promotion of the public welfare. (Schulze v. Coykendall, 218 Kan. 653, 545 P. 2d 392; Munsell v. Ideal Food Stores, 208 Kan. 909, 920, 494 P. 2d 1063; Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 64, 340 P. 2d 396, 76 A. L. R. 2d 687.) Such an absolute privilege attaches to acts of a school board whether the acts are ministerial or quasi-judicial as stated in Gawith v. Gages Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966. The absolute privilege attaches to all official acts done within the scope of the officer’s authority. (Cunningham v. Blythe, 155 Kan. 689, 127 P. 2d 489.)

For this reason I concur in the opinion affirming the trial court. However, I cannot agree that the “dictum” in Schulze v. Coykendall, supra, should be disapproved. The appellee in that appeal devoted two full pages of his brief in a vain attempt to convince this corut that Coykendall should enjoy an absolute privilege and that the trial court was correct in entering summary judgment. I see no conflict in holding a complaining patron of a school district enjoys only a qualified privilege while a school board hearing the complaint and acting thereon enjoys an absolute privilege.

It fell my lot to write the prior opinion in Schulze v. Coykendall, supra, which preceded the present litigation. In Coykendall the libel action was filed by Schulze based upon the statements in the written petition circulated by Coykendall among the patrons of the school district and filed with the board of education. It was alleged this petition or complaint set forth facts which were wholly false and the actions of Coykendall were prompted by malice. The district court’s order granting summary judgment for defendant was reversed and the case was remanded for further proceedings. A unanimous court held that the complaint filed with the board of education enjoyed only a qualified or conditional privilege. As a result it would naturally follow that Schulze must prove actual malice and that 'the publication was made with knowledge the defamatory statement was false or was made in reckless disregard of whether it was false or not. We rejected the argument of the appellee that an absolute privilege attached to the circulation and filing of the petition with the school board.

The determination of whether an absolute privilege or a conditional privilege exists is a question of law to be decided by the court when the facts upon which such a determination must stand are undisputed. (Faber v. Byrle, 171 Kan. 38, Syl. 4, 229 P. 2d 718, 25 A. L. R. 2d 1379; Schulze v. Coykendall, supra.) I concur in the affirmance of the summary judgment but respectfully dissent from Syl. 1 of the majority opinion as to the statutory authority to hire and fire teachers. I further dissent from those portions of the opinion which indirectly hold the school board enjoys an absolute privilege only when engaged in quasi-judicial proceedings.