James T. Morris v. The Board of Education of the Metropolitan Nashville Public Schools - Dissenting ( 1997 )


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  •      IN THE COURT OF APPEALS OF TENNESSEE
    MIDDLE SECTION AT NASHVILLE
    JAMES T. MORRIS,          )
    )
    Plaintiff/Appellee,  )
    )                    Davidson Chancery
    )                    No. 95-3084-III
    VS.                       )
    )                    Appeal No.
    )                    01A01-9605-CH-00247
    THE BOARD OF EDUCATION    )
    OF THE METROPOLITAN       )
    NASHVILLE PUBLIC SCHOOLS, )
    )
    FILED
    Defendant/Appellant. )                                        January 8, 1997
    Cecil W. Crowson
    DISSENTING OPINION                       Appellate Court Clerk
    The Metropolitan Nashville Board of Education and the teachers union are
    attempting to use this case as a vehicle to resolve whether Tenn. Code Ann. § 7-7-
    105 (Supp. 1996) permits the board to use administrative law judges in Tenn.
    Code Ann. § 49-5-512 (1996) hearings concerning the termination of tenured
    teachers. The court has decided to address this issue on its merits even though the
    teacher involved in this case is non-tenured and is not entitled to a hearing before
    the board. I cannot agree that we should decide this question at this time. It
    would be more appropriate to delay addressing the issue until we are presented
    with a concrete case or controversy.
    The doctrine of justiciability prompts the courts to stay their hand in cases
    that do not involve a genuine and existing controversy requiring the present
    adjudication of present rights. State ex rel. Lewis v. State, 
    208 Tenn. 534
    , 537,
    
    347 S.W.2d 47
    , 48 (1961); Dockery v. Dockery, 
    559 S.W.2d 952
    , 954 (Tenn. Ct.
    App. 1977). In accordance with the doctrine, our courts routinely decline to
    render advisory opinions, Super Flea Market of Chattanooga v. Olsen, 
    677 S.W.2d 449
    , 451 (Tenn. 1984); Parks v. Alexander, 
    608 S.W.2d 881
    , 892 (Tenn.
    Ct. App. 1980), or to decide abstract legal questions. State ex rel. Lewis v. 
    State, 208 Tenn. at 538
    , 347 S.W.2d at 48-49.
    All the parties agree that Mr. Morris is an untenured teacher. The authority
    to terminate untenured teachers rests with the school superintendent rather than
    the board. See Tenn. Code Ann. § 49-2-301(f)(33) (1996). Thus, Mr. Morris does
    not have a statutory right to a hearing or appeal to the board from the
    superintendent’s decision to terminate him. If Mr. Morris is not entitled to a Tenn.
    Code Ann. § 49-5-512 appeal, he is not the proper party to seek a declaratory
    judgment concerning the use of administrative law judges for Tenn. Code Ann.
    § 49-5-512 hearings.
    The record demonstrates that the superintendent was unaware of his
    prerogative to terminate Mr. Morris and that he and his department mistakenly
    believed that Mr. Morris was entitled to a hearing before the board pursuant to
    Tenn. Code Ann. § 49-5-512. No collective bargaining agreement or other local
    rule or procedure requires or permits the board to review the superintendent’s
    decision with regard to non-tenured personnel. Thus, the superintendent’s mistake
    cannot vest the board with jurisdiction that it otherwise does not have.
    I would vacate the judgment and remand the case with directions that it be
    dismissed.
    ________________________________
    WILLIAM C. KOCH, JR., JUDGE
    -2-
    

Document Info

Docket Number: 01A01-9605-CH-00247

Judges: Judge William C. Koch, Jr.

Filed Date: 1/8/1997

Precedential Status: Precedential

Modified Date: 10/30/2014