JAMES LEWIS V BRIDGMAN PUBLIC SCHOOLS
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES LEWIS,
FOR PUBLICATION
July 1, 2008
Petitioner-Appellee,
v
No. 261349
State Tenure Commission
LC No. 04-000008
BRIDGMAN PUBLIC SCHOOLS,
Respondent-Appellant.
ON REMAND
Advance Sheets Version
Before: Servitto, P.J., and Fitzgerald and Talbot, JJ.
TALBOT, J. (concurring).
This matter is on remand by order of the Michigan Supreme Court based on court’s
determination that “the teach tenure act, MCL 38.101 et seq., does not require the State Tenure
Commission to apply a ‘clear error,’ rather than a ‘de novo,’ standard of review to its
consideration of the preliminary decisions of administrative law judges.” Lewis v Bridgman Pub
Schools, 480 Mich 1000 (2007). The Court remanded the case “for consideration of whether the
commission’s decision was arbitrary, capricious, or an abuse of discretion; or unsupported by
competent, material and substantial evidence on the whole record.” Id.
Because I am constrained by the language of the Supreme Court’s remand order, I am
forced to concur with this Court’s revised ruling. However, I must take issue with the
abbreviated review engaged in by our Supreme Court, which focused solely on the standard of
review and failed to address the substantive issue pertaining to the effect of statutory changes on
the role and authority of the tenure commission. As a result, I am compelled to write separately
on this important and dispositive issue. Specifically, I am concerned about the failure to review
or consider the effect of the amendment of the teacher tenure act by 1993 PA 60, which initiated
the use of a hearing officer, and the presumed propriety of the continued application of a de novo
standard of review.
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In order to understand my concerns, which were outlined in the original opinion in this
case, which is1 now on remand, I believe it is necessary to provide a short historical perspective
of how the authority of the tenure commission has evolved and the Court’s role in that
development. Disputes regarding the authority of the State Tenure Commission to alter
disciplinary decisions by school boards are longstanding and have arisen repeatedly in caselaw.
See Rehberg v Melvindale, Ecorse Twp School Dist No II Bd of Ed, 345 Mich 731; 77 NW2d
131 (1956) (Rehberg II); Rehberg v Melvindale, Bd of Ed, 330 Mich 541; 48 NW2d 142 (1951)
(Rehberg I). This line of caselaw recognized that
[t]he tenure act places an additional safeguard upon the arbitrary or unreasonable
dismissal of teachers and is designed for their protection. It does not, however,
otherwise diminish or interfere with the administrative power of the local
controlling board, nor require it to indulge in idle ceremonies. [Rehberg I at 548.]
However, these cases did not resolve the primary issue that is currently before this Court
regarding the authority of the tenure commission to overrule a controlling board and substitute its
judgment regarding the punishment to be imposed for teacher misconduct. That determination
arose later in Long v Bd of Ed, Dist No 1, Fractional Royal Oak Twp and City of Royal Oak, 350
Mich 324; 86 NW2d 275 (1957), when our Supreme Court ruled that the teacher tenure act,
“[d]iscloses clear legislative intent that the commission—following appeal by a teacher under
said article 6—be vested with duty and authority to determine, anew and as original questions,
all issues of fact and law theretofore decided by the controlling board.” Id. at 327. It should be
noted, however, that the Court made this ruling regarding “the commission’s administrative
function” based “particularly from language appearing in section 1 of said article 6, by which the
commission is directed to conduct its hearing on the appeal ‘the same as provided in article 4,
section 4 of this act.’” Id.
At the time of this 1957 ruling, MCL 38.121, comprising article 6, § 1, provided:
A teacher who has achieved tenure status may appeal any decision of a
controlling board under this act within 30 days from the date of such decision, to a
state tenure commission. The state tenure commission shall provide for a hearing
to be held within 60 days from the date of appeal. Notice and conduct of such
hearing shall be the same as provided in article 4, section 4 of this act, and in such
other rules and regulations as the tenure commission may adopt.
MCL 38.104, constituting article 4, § 4, detailed the procedure to be followed by the controlling
board and the tenure commission in the conduct of hearings, including, in relevant part:
a. The hearing shall be public or private at the option of the teacher
affected.
1
Lewis v Bridgman Pub Schools, 275 Mich App 435; 737 NW2d 824 (2007), rev’d 480 Mich
1000 (2007).
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b. No action shall be taken resulting in the demotion or dismissal of a
teacher except by a majority vote of the members of the controlling board.
c. Both the teacher and the person filing charges may be represented by
counsel.
d. Testimony at hearings shall be on oath or affirmation.
e. The controlling board shall employ a stenographer who shall make a
full record of the proceedings of such hearing and who shall, within 10 days after
the conclusion thereof, furnish the controlling board and the teacher affected
thereby with a copy of the transcript of such record, which shall be certified to be
complete and correct.
f. Any hearing held for the dismissal or demotion of a teacher, as provided
in this act, must be concluded by a decision in writing, within 15 days after the
termination of the hearing. A copy of such decision shall be furnished the teacher
affected within 5 days after the decision is rendered.
g. The controlling board shall have the power to subpoena witnesses and
documentary evidence, and shall do so on its own motion or at the request of the
teacher whom charges have been made . . . . [1937 (Ex Sess) PA 4, art IV, § 4.]
Under the statutory language, existing at that time, it was clearly appropriate to require the use of
a de novo standard of review, given the authority of the tenure commission to not only review
the record developed by the controlling board on appeal, but to also generate additional evidence
and testimony as part of its review process.
However, 1993 PA 60 substantively changed the procedure to be used in the appeal of a
decision by a controlling board and, in my opinion, necessitates a renewed look at the effect of
the statutory changes on the process of reviewing controlling-board rulings in light of the current
restrictions placed on the authority of the tenure commission. Even before amendment of the
act, our Supreme Court acknowledged that many of its rulings pertaining to the authority of the
tenure commission came, not from the language of the statute itself, but rather were the result of
judicial construction. Specifically, the Court noted:
[T]he act has been construed, as a matter of practice, to safeguard a
tenured teacher against suspension except for reasonable and just cause and to
provide for review of a suspension by the Tenure Commission. The act thus has
been construed, although it does not literally provide therefor, to mean, in effect,
that the commission shall determine whether there was reasonable and just cause
for the imposition of the “discipline” imposed by the school board, whether the
discipline imposed was suspension or discharge. [Lakeshore Bd of Ed v
Grindstaff (After Second Remand), 436 Mich 339, 356; 461 NW2d 651 (1990).]
What is currently problematic is the fact that the scope and authority of review by the tenure
commission has been substantively circumscribed through amendment of the act but the courts
continue to adhere to the judicially created prior review standard without any consideration of
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these changes.2 While I admit, as noted by the Supreme Court in its order of remand, that the act
“does not require the State Tenure Commission to apply a “‘clear error’” standard of review, I
would contend that the statutory language also does not specifically mandate the use of a de novo
standard of review. The Court has previously determined the appropriate standard of review by
judicial construction. It would seem that amendment of the statute provides the perfect
opportunity, as well as the necessity, to revisit our interpretation of this language and how it
affects procedure.
As a starting point in this analysis, I must take issue with our Supreme Court’s purported
reliance on MCL 38.101 in its ruling in Lakeshore, which suggested that this statute provided the
tenure commission with the authority to determine what constitutes an appropriate penalty for
teacher misconduct and permitted it to reduce or alter a school board’s determination regarding
the appropriate level of discipline to be imposed for teacher misconduct. In reality, the relevant
portion of MCL 38.101 states only that “[d]ischarge or demotion of a teacher on continuing
tenure may be made only for reasonable and just cause and only as provided in this act.”
Further, the suggestion that this purported authority derives from MCL 38.101 is directly
contrary to the specific acknowledgement by our Supreme Court that the exercise of the
decision-making function pertaining to penalties imposed for teacher misconduct actually
originated through judicial construction. See Lakeshore, supra at 356.
The primary provision of the act addressing the role of the tenure commission has been
amended to circumscribe its authority. MCL 38.104 now provides, in relevant part:
(5) The hearing and tenure commission review shall be conducted in
accordance with the following:
***
(m) If exceptions are filed, the tenure commission, after review of the
record and the exceptions, may adopt, modify, or reverse the preliminary decision
and order. The tenure commission shall not hear any additional evidence and its
review shall be limited to consideration of the issues raised in the exceptions
2
This calls to mind an essay by United States Supreme Court Justice Antonin Scalia, in which he
postulates:
What intellectual fun all of this is! It explains why first-year law school is
so exhilarating: because it consists of playing common-law judge, which in turn
consist of playing king—devising, out of the brilliance of one’s own mind, those
laws that ought to govern mankind. How exciting! And no wonder so many law
students, having drunk at this intoxicating well, aspire for the rest of their lives to
be judges! [Scalia, A Matter of Interpretation: Federal Courts and the Law
(Princeton: Princeton University Press, 1997).]
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based solely on the evidence contained in the record from the hearing. [Emphasis
added.]
Such language does not automatically, nor inevitably, lead to an interpretation requiring the use
of a de novo standard of review or the vesting of authority by the Legislature in the tenure
commission to substitute its judgment for the controlling board regarding the discipline to be
imposed for teacher misconduct. Rather, I would contend that the language equally lends itself
to a reading and understanding that the tenure commission may review the record and is
restricted solely to a determination whether the controlling board’s actions are substantiated by
reasonable and just cause in accordance with the legislative intention underlying the act.
The amendment of the statutory language renders the reasoning provided by Chief Justice
Riley in the dissent to Lakeshore all the more compelling and applicable to the circumstances of
this case. Chief Justice Riley opined that “the function of the commission in reviewing the
discharge or discipline of a teacher is limited to determining whether the local board’s action was
for ‘reasonable and just cause.’” Lakeshore, supra at 358 (Riley, C.J., dissenting). Reviewing
the history of decision-making by the tenure commission, Chief Justice Riley noted:
There is, obviously, no express authority granted to the commission in the
statute itself to reduce or otherwise modify a penalty imposed by a local board.
The statute gives the local board the right to discharge or demote a teacher for
“reasonable and just cause.” The teacher has the right to appeal the board’s action
to the commission, which conducts its own hearing on the matter, in the same
manner as the local board. On appeal, the commission acts as a “board of review”
and is vested with “such powers as are necessary to carry out and enforce the
provisions” of the act.
The plaintiff and the commission contend that this statutory scheme
impliedly vests the commission with the authority to modify the decisions of a
local board regarding the severity of the penalty imposed on a teacher. They rely
on various decisions of this Court to establish that authority. In my view, such
reliance is misplaced. [Id. at 359-360 (citations omitted).]
Relying on the language of the statute indicating that the tenure commission functions as a
“review board,” Chief Justice Riley opined, “[T]he mere fact that the commission has the
authority to review the penalty imposed, to determine whether it is for reasonable and just cause,
does not necessarily mean that it has the right to alter that penalty if it concludes otherwise.” Id.
at 365-366 (emphasis in original).
While acknowledging the authority of the tenure commission “to make an independent
determination regarding whether the penalty imposed meets the reasonable and just cause
standard,” Chief Justice Riley opined that such authority was not bestowed by the Legislature
with the intention to create a “super-school board.” Id. at 366, 368. In conclusion, Chief Justice
Riley took issue with the commission’s authority to modify or substitute its judgment for that of
the school board with regard to “how to best discipline the teacher,” determining that “[t]here is
no provision in the Act which expressly or impliedly grants this power to the [commission].” Id.
at 369. As suggested within Chief Justice Riley’s dissent, the resultant effect of such judicial
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construction, without commensurate statutory justification, has served to elevate the
commission’s status from a “review board” to a policy-making body usurping the authority of
local school boards.
As a result, given the substantive changes in the controlling statutory language, I believe
it is improper to presume and continue the applicability of prior caselaw interpreting the
authority and scope of the tenure commission’s review. While I am constrained by the wording
of our Supreme Court’s order remanding this matter, I am compelled to voice my concerns
regarding the restrictions imposed on our review and the resultant elevation of form over
substance, precluding our ability to engage in a more thorough and considered analysis of the
underlying issue.
/s/ Michael J. Talbot
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