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Linstad v. Sitka School District (11/26/93), 863 P 2d 838
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
EVIE LINSTAD, )
) Supreme Court File No. S-4958
Appellant, ) Superior Court File No.
) 1SI-90-224 Civil
v. )
)
SITKA SCHOOL DISTRICT, ) O P I N I O N
)
Appellee. ) [No. 4028 -- November 26, 1993]
)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Sitka,
Larry C. Zervos, Judge.
Appearances: Chrystal Sommers Brand,
Baxter, Bruce, Brand & Rodriguez, Juneau, for
Appellant. Robert P. Blasco, Robertson,
Monagle & Eastaugh, P.C., Juneau, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
COMPTON, Justice.
BURKE, Justice, dissenting in part.
After an independent review of the record, the superior
court upheld the decision of the Sitka School District
not to retain Evie Linstad for the 1990-91 school year.
Linstad, a tenured teacher, challenges several of the
superior court's procedural rulings and its final
decision. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Sitka School District (District) employed Evie
Linstad as a special education teacher from 1977-1990.
Yearly evaluations of Linstad's teaching performance
were generally positive, but they indicated
longstanding problems regarding her ability to maintain
an effective working relationship with fellow teachers
and, to a lesser degree, her ability to develop clear
and effective lesson plans.
In 1986 Terry Coon became the principal of Linstad's
school and her supervisor. Linstad received very poor
evaluations from Coon.1 In 1989 Coon recommended that
Linstad not be retained for the 1989-90 school year.
Nonetheless, the Sitka School District Board of
Education (Board) did not accept this recommendation
and Linstad returned for the 1989-90 school year.
During the 1989-90 school year Linstad's relationship
with Coon became highly adversarial.2 In December
1989, pursuant to the Negotiated Agreement between the
District and its teachers, Coon and District
Superintendent Art Woodhouse notified Linstad that her
"teaching performance [wa]s so deficient that it may
affect [he]r continued employment"with the District.
The notice directed Linstad to discuss with her
superiors "remedial action to correct this deficiency."
In February 1990 Coon gave Linstad another very poor
evaluation and recommended that she not be retained for
the following school year.
The District accepted Coon's recommendation and gave
Linstad notice that she would not be retained for the
1990-91 school year. Pursuant to statute, the notice
specified the grounds of nonretention as "incompetency"
and "substantial noncompliance"with state law and
school policies. See AS 14.20.175 (a tenured teacher
is subject to nonretention only for incompetency,
immorality, substantial noncompliance with school law,
or a necessary reduction of staff). The notice also
contained a bill of particulars as required by AS
14.20.180(a).3
The Board held a three-day nonretention hearing for
Linstad in April 1990. In May 1990 the Board decided
by unanimous vote not to retain Linstad due to
demonstrated incompetence in the performance of her
duties and substantial failure to comply with statutes,
regulations and District policies. After this
decision, Linstad sought judicial review in the
superior court pursuant to AS 14.20.205, which provides
in part that "[i]f a school board reaches a decision
unfavorable to a teacher, the teacher is entitled to a
de novo trial in the superior court."
After a pretrial hearing in December 1990, Superior
Court Judge Larry Zervos asked the parties to decide
whether they wished to proceed with the matter as an
appeal or as a de novo trial. Judge Zervos ruled that
if the matter was to proceed as a de novo trial, "the
school district [would] not [be] bound by the bill of
particulars that had been filed during the non-
retention hearing." The court stated:
The ruling to allow the district to
deviate from the bill of particulars was
premised on the fact that a trial de novo
should provide a forum for a full and final
inquiry into all the issues raised. Because
of the limited time and procedure provided by
the nonretention hearing process, some
issues, on both sides, may not have been
adequately developed. Since the statute
authorizes a new trial, it is the court's
interpretation that the procedures followed
in this case should be the same procedures as
in any other civil case.
Linstad argued that the ruling denied her fair notice
and allowed the District to avoid its statutorily
mandated duty to give her a "complete bill of
particulars." AS 14.20.180(a). In response, the court
noted that "[a]dequate discovery procedures and the
rules of evidence should protect Ms. Linstad from the
problems raised in her objection." While preserving
her objection to these rulings, Linstad chose to have
an independent review of the record, rather than a de
novo trial.
In December 1991 the court upheld the Board's
nonretention decision. The court explicitly stated
that it had "independently reviewed the record before
the school board to determine whether the decision to
nonretain Linstad was supported by a preponderance of
the evidence."4 The court concluded in the affirmative
and this appeal followed. AS 22.05.010(a); Alaska R.
App. P. 202(a).
II. DISCUSSION
Alaska Statute 14.20.180 describes the administrative
procedure that is utilized when a tenured teacher has
been given a notice of nonretention. AS 14.20.180;
Corso v. Comm'n of Educ., 563 P.2d 246, 247 n.8 (Alaska
1977). Pursuant to this statute, a school board must
provide a tenured teacher with (1) "a statement of
cause and a complete bill of particulars" of the
charges for nonretention, and (2) a hearing. AS
14.20.180(a)-(b). If the Board reaches a decision
unfavorable to a tenured teacher, the statutory
framework provides the teacher an additional protection
-- the right to a de novo trial in the superior court.
AS 14.20.205.
Linstad argues that the superior court erred in its
interpretation and application of section 205. Citing
the explicit statutory guarantee of de novo review,
Linstad argues that the trial court erred in forcing
her to elect between a de novo trial and a review of
the Board record. Linstad further argues that the
court erred in holding that the Board could deviate
from the original bill of particulars if Linstad chose
to have a de novo trial. In essence, Linstad argues
that the bill of particulars requirement binds the
District not only before the Board, but also before the
superior court if the teacher exercises her right to a
de novo trial under AS 14.20.205.5
We agree that the superior court erred in making
Linstad choose between a de novo trial and a review of
the record. The statute provides tenured teachers the
right to a de novo trial, and makes no mention of other
available levels of review. AS 14.20.205. Further, we
have previously held that the de novo requirement of AS
14.20.205 is not satisfied by "a de novo review on the
evidence presented in the administrative hearing."
Asevedo v. Anchorage Sch. Dist., 843 P.2d 1209 (Alaska
1992). The superior court thus erred in forcing
Linstad to choose between a de novo trial and a review
of the record.6
We must now determine the scope of the de novo trial to
which Linstad was entitled. In Asevedo, we discussed
the de novo trial under AS 14.20.205: "[T]he most
common meaning of the term de novo trial is a
proceeding where there is both a new evidentiary
hearing and original fact finding. It is our view that
the legislature contemplated such a proceeding in
enacting AS 14.20.205." Id. Asevedo did not address,
however, whether the Board could deviate from the
original bill of particulars during the trial before
the superior court. Accordingly, this question is one
of first impression for this court.7
Pursuant to section 205, the superior court reviews the
Board's nonretention decision de novo, i.e., "as if the
proceeding had been originally brought in the reviewing
court." 2 Am. Jur. Administrative Law 2d 698, at 597
(1962). Consistent with Asevedo, this means that new
evidence may be presented and that the superior court
must engage in original fact finding. Asevedo, 843
P.2d at 1209. It does not mean, however, that the
school district can change the allegations which form
the basis for its nonretention decision. The bill of
particulars requirement under section 180 prevents a
district from changing tactics or bolstering its case
during the middle of the administrative process. So
too should it protect the teacher who chooses to have
the Board's decision reviewed de novo in the superior
court.
We therefore hold that the bill of particulars
provision of section 180 operates as a limitation on
the scope of the de novo trial guaranteed by section
205.8 Although section 205 was enacted for the benefit
and protection of tenured teachers, the superior
court's interpretation of AS 14.20.205 could actually
work to a teacher's detriment. The court's ruling
would provide a district with a fresh opportunity to
bolster its nonretention decision, and would make it
likely that a teacher would have to spend more time,
effort and money to meet any additional charges. Since
the superior court essentially supplants the Board and
redecides the case, it makes sense to apply the bill of
particulars limitation to the de novo trial in the
superior court. Furthermore, this decision is
supported by the policies underlying both the statutory
framework generally, and the teacher's right to de novo
review specifically.
We have previously noted the importance of both the
tenured teacher's interest in a nonretention decision,
and the mandatory right to de novo review of that
decision:
The decision not to retain a tenured
teacher may have an enormous impact on that
teacher's career. This consideration must
have weighed heavily in the minds of the
legislature when they granted the unusual
right to trial de novo. There is no question
that a judicial body, often further removed
from the political pressures involved in a
teacher nonretention dispute, will provide a
more objective perspective of the
proceedings.
Jerrel v. Kenai Peninsula Borough Sch. Dist., 567 P.2d 760, 766
(Alaska 1977).9 Because sections 180 and 205 were
enacted for the benefit and protection of tenured
teachers, we interpret these sections to give effect to
this goal.
III. CONCLUSION
We hold that the superior court erred in making Linstad
choose between a de novo trial and review of the
record. Further, we conclude that the court erred in
ruling that the Board could deviate from the original
bill of particulars if Linstad chose de novo trial.
Accordingly, we REVERSE and REMAND for further
proceedings consistent with this opinion.
BURKE, Justice, dissenting in part.
I respectfully dissent from that part of today's
decision limiting the school district, in a de novo
trial under AS 14.20.205, to the nonretention grounds
detailed in the bill of particulars included in the
notice of nonretention given to Linstad pursuant to AS
14.20.180.
The Alaska Legislature clearly intended to guarantee
fair treatment for tenured teachers threatened with
nonretention.10 The majority, bent on providing maximum
protection to such teachers, construes the right to a
de novo trial provided in AS 14.20.205 as including the
right to a trial limited in scope to the grounds for
nonretention described in the bill of particulars
mandated by AS 14.20.180. Neither of the two sections,
nor the Alaska Rules of Civil Procedure,11 imposes such
a limitation. Section 14.20.205 is totally silent on
the issue. Although section 14.20.180 requires a
"complete bill of particulars" in the notice of
nonretention given to a tenured teacher, it does not
purport to apply that requirement, nor any other, to
proceedings held in the superior court.12 The Alaska
Rules of Civil Procedure govern such proceedings. See
supra note 3.
The majority treats Linstad's career interests as
paramount. Her interests, however, while undoubtedly
important and worthy of protection, are certainly no
more important than the public's interest in
identifying and eliminating incompetent teachers, and
the children's "right"to receive a quality education
in a conducive environment.13
As long as a teacher is given adequate notice of all
charges to be considered in his or her de novo trial,
and a fair opportunity to defend against those charges,
no sound policy reason exists to prevent a school
district from using the available evidence bearing upon
the teacher's fitness to maintain his or her teaching
position, regardless of whether the notice of
nonretention included such evidence.14
_______________________________
1. Coon included with the evaluation forms detailed
critiques of Linstad's performance. He cited problems
with punctuality and classroom discipline, as well as
continued problems with lesson planning and working
relationships.
2. The record contains numerous interoffice memoranda
displaying a breakdown of communication and a complete
lack of mutual respect or professional esteem between
Linstad and Coon.
3. The statute provides that "[a]n employer shall include
in a notification of . . . nonretention or dismissal of
a tenured teacher, a statement of cause and a complete
bill of particulars." AS 14.20.180(a) (emphasis
added).
4. Because Linstad elected to have an independent review
of the record, the court limited the scope of its
review to those allegations included in the bill of
particulars. However, noting that Linstad herself had
introduced evidence dealing with events occurring
before the 1989-90 school year, the court did not limit
its review to that year alone. Instead, it examined
"all evidence presented to the board at the hearing
that relates to the allegations raised in the 'Bill of
Particulars.'"
Linstad claims that the trial court erred in giving her
an "intermediate level"of review. If the election
itself was proper, the court did not err in giving
Linstad the precise level of review which she requested
in her notice of election, an "independent review of
the evidence before the school board." The court
conducted original fact finding based on the
administrative record. See Asevedo v. Anchorage Sch.
Dist., 843 P.2d 1209 (Alaska 1992) (describing this
type of review as a de novo trial "in part").
5. The District does not squarely address Linstad's
argument, but instead argues that the court allowed the
District to go beyond the bill of particulars because
Linstad had raised new allegations in her wrongful
termination action. The District claims that the court
simply "reminded Linstad about how a jury trial works
when a party files a civil complaint and what rules
apply." The District mischaracterizes the court's
ruling.
6. Linstad originally requested a de novo trial in
accordance with her statutory right. Despite this
request, however, the superior court gave Linstad a
choice between a de novo trial and an appeal on the
record. Further, the court made clear that the Board
would be allowed to deviate from the bill of
particulars if Linstad chose a de novo trial. In so
doing, the superior court failed to follow the dictates
of AS 14.20.205, and improperly influenced Linstad to
forego the right to a de novo trial guaranteed by
AS 14.20.205. We do not suggest, however, that an
independent review of the record would be inappropriate
where a new evidentiary hearing is not sought.
7. Because questions of law and statutory construction are
presented here, this court will apply its independent
judgment to resolve the issue. Forest v. Safeway
Stores, Inc., 830 P.2d 778, 780 n.3 (Alaska 1992).
8. This limitation does not undermine the de novo nature of
the trial court's review. "A trial or hearing 'de
novo' means trying the matter anew the same as if it
had not been heard before and as if no decision had
been previously rendered." 2 Am. Jur. 2d
Administrative Law 698, at 597 (1962). While a de
novo trial may be different in many respects from the
original administrative hearing, the essential aspect
of such a trial is the authority of the reviewing court
to exercise its independent judgment. In other words,
the reviewing court must be authorized to make an
entirely independent determination, unencumbered by any
presumptions regarding the administrative decision.
Id. at 598. Our decision today protects this essential
element.
9. In Matanuska-Susitna Borough v. Lum, 538 P.2d 994
(Alaska 1975), we also noted several policy reasons
underlying the mandatory right to a de novo trial. For
example, we stated that "[i]t is well known that the
composition of many school boards is not such as to
endow them with fact-finding expertise in matters of
teacher nonretention." Id. at 1001. We also noted
that the teacher is faced with the loss of a very
important right -- the teacher's source of income. Id.
10. AS 14.20.175 provides the only grounds for which a
tenured teacher is subject to nonretention. AS
14.20.180 requires a school district to include "a
statement of cause and a complete bill of particulars"
in any notice of nonretention given to a tenured
teacher, and affords the teacher the right to an
administrative hearing before the school board. If the
school board reaches an unfavorable decision, the
teacher, upon request, is entitled to a de novo trial
in the superior court. See AS 14.20.205.
11. The limitation also appears to conflict with the fact
that a de novo trial is, by definition, "[a] trial . .
. in which the whole case is gone into as if no trial
whatever had been had in the court below." Black's Law
Dictionary (6th ed. 1986); see also Yepes-Prado v. U.S.
Immigration & Naturalization Serv., 1993 WL 462699, at
*3 n.5 (9th Cir. Nov. 12, 1993).
12. The state's legislative power undoubtedly includes the
power to enact rules governing school district
practices and procedures in teacher nonretention cases.
See Alaska Const. art. II, 1. Thus, the legislature
is free to impose procedural requirements such as those
contained in AS 14.20.180 upon school districts and
teachers. Linstad's de novo trial, however, will be
held in the superior court. Section 14.20.180 does not
even pretend to regulate practice and procedure in the
superior court, and if it did, the statute would be
invalid. Only this court, the supreme court, has the
power to "make and promulgate rules governing practice
and procedure in civil and criminal cases in [the]
courts." Alaska Const. art. IV, 15. Thus, the
Alaska Civil Rules govern all proceedings in the
superior court. The legislature, while it has the
power to change such rules "by two-thirds vote of the
members elected to each house,"has no power to make
them. Id.; Channel Flying, Inc., v. Bernhardt, 451
P.2d 570 (Alaska 1969). (Note: No such change has
been made in any of the Civil Rules applicable to this
proceeding.)
13. I do not intend to pass judgment upon Lindstad's
performance as a teacher, nor upon the question of
whether she is entitled to maintain her teaching
position. My remarks are directed only toward that
portion of today's decision limiting the scope of the
de novo trial required by AS 14.20.205.
14. The majority suggests that the school district could
"disadvantage" the teacher by bolstering its
nonretention decision with new evidence. This seems
generally unlikely, since the teacher is the only party
that can request a de novo trial. AS 14.20.205. Op.
at 8. If the district loses at the school board
hearing, there is no de novo trial. Thus, the district
has an interest in putting forward all of its evidence
during the administrative hearing. The district had no
incentive to withhold relevant evidence until the de
novo trial. At any rate, in light of the important
policy reasons discussed above, I see no good reason to
restrict the evidence that the district can present at
a de novo trial to the matters contained in the bill of
particulars.
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