Christeson v. Northwest Alabama State Junior College

    426 Ala.

firm aught that appears, the trial court
was properly concerned with her mental
stability and the attendant emotional
wherewithal necessary to properly raise and
nurtur€ a child. Thus we cannot say the
trial court plainly abused its discretion in its
award of custody.

In view of the above, however, this court
has no altcraative but to reverse.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., con-
cur,

Eleanor CHRISTESON

v.

NORTITWEST AII\BAMA STATE
JUNIOR COLLEGE.

Civ. 1745.

Court of Civil Appeals of Alabama.

May 30, 1979.

Terminated state junior college teacher
brought class action on behalf of herself
and others seeking declaration that termi-
nation of her contract was unconstitutional
for lack of due prcce$ and seeking to re-
strain college fipm terminating her con-
tract. The Circuit Court, Montgomery
C,ounty, Sam W. Taylor, J., entered summa-
ry judgment in favor of college, and teacher
appealed. The Court of Civil Appeals,
TVright, P. J., held that: (l) teacher, who
was not unaware of resolution of State
Board ol &lucation establishing ad hoc
committee for hearing administrative ap
peale, who delayed over 180 days in filing
request for hearing on her termination, end
who first accepted nonrenewal of her con-
tnact through acceptance of proffered part-
time poeition, suboequently resigned from
employment of college and accepted anoth-

37T SOUTHEBN REFORTER, 2d SERIES

er full-time poeition, waived her right to
due process hearing, and (2) teacher who
was granted full evidentiary hearing on ter-
mination of her contract within short time
after her requeot despite her delay of morc
than 150 days in requesting hearing, her
notice of rcaignation, and her acceptance of
other employment, rcceived posttermination
procedural due process even though she had
previously waived her right to hearing.

Affirmed.

l. Coneiitutlonal Lew o=l7f/7(2,

Teacher with tenure had constitutional-
ly protected property interest which could
not be terminated without opportunity of
prucedural due pnocess. U.S.C.A.Const.
Amend. 14.

2. Congtitutionel [.ew e2?8.1(5)
Due process does not requirc preter-

mination hearing in most cases of termina-
tion of public employment, only a postter-
mination opportunity to be heard. U.S.C.A.
Const. Amend. 14.

3. Conetitutionel lew e2?8.5(4)
Schoole el4l(5)

There is no due process requircment
other than providing opportunity for hear-
ing for teacher who has been terminated; it
is teacher desiring to challenge tcrmination
who has initiative to rcquest hearing. U.S.
C.A.Const. Amend. 14.

{. Collegea and Universltiee e"8.1({)
Even under state statute governing

tenurc of college teacher, it is responsibility
of terminated tcacher to file notice of ap
peal within 15 days after dismiss8l. Code
of Ala.l975, $ lG%-10; U.S.C.A.C,onst.
Amends. 5, 14.

5. Collegce and Unlvenitla c'&l(4)
Constltutlond lrr e4311;

Teacher, who was not unawane of reso-
lution of St8t€ Bosrd of Frlucation estsb
lishing ad hoc committee for hearing ad-
ministrstive appeals, who delayed morne

than 150 days after notice of her termina-
tion before filing requeat for hearing on

CHRISTE

termination, who finst 8cc€

of her teaching contract thr

of proffered part-time por

college, and who subseq

firm employment of colle
another full-time position '

lege, delayed unrcasonabl
hearing and waived her dr
U.S.C.A.Const. Amends. 5,

6. Conetitutlon, [,.* -
Due proceso responsib

ing authority need not b

teacher voluntarily tcrmin
ment. U.S.C.A.Const. Am

7. Constitutionel I.-r e
Tenured teacher who

evidentiary hearing on het
to decrcased enrollment v

after she r.equestcd it des

more than 150 days in ra
her giving notice of rrcsi1

acceptance of other empl
posttermination prccedur
even though she had prcvi
right to hearing. Code of
2A-L0,lG$lll; U.S.C.,
5, 14.

Joseph E. Carr, IV, Ala.
Montgomery, for appellan

H. Neil Taylor, Russellr
Northwest Alabama Statr

Charles S. Coody, Mon
Alabama State Bd. of E
Superintendent of &1.

WRIGHT, Presiding Jur

Plaintiff appeals firm
ment rcndered in favor oI
sffirm.

Plaintiif waa a teache
tenurr at defendant colk
arcse fiom the provisionr
Code of Alabama (19115) ar
lationg duly adopted under
statute by the Alabama
Erlucstion.

The facts giving rise tr
trcversy were stipulated I



IERIES

pcition, waived her right to
learing, and (2) teacher who
'ull evidentiary heering on ter-
rer contract within ehort time
test despite her delay of morc
e in regueating hearing, hg1
pation, and her acceptance of
nent, rcceived posttermination
e pnooess even though she had
rived her right to hearing.

CHRISTESON v. NORTIIWEST ALA. JR. COLLEGE Ala. 427
Clte el AtrClv.App., t?l Sord a23

termination, who first acccpted nonrenewal breviated as follows: On April 18, 1917, the
of her teaching contract through acceptance prnesident of the "college" informed plain-

of proffered part-time position with same tiff by letter that beeause of decreased en-

college, and who subsequently rrcsigned rcllment, her contract as a tescher of music

from employment of college and accepted would not be renewed for the school year
another full-time position with another col- 1977-78. However, ahe was offeled a parL
lege, delayed unrcasonably in requesting time tebching position at a salary of forty-
hearing and waived her due process rights. thrce percent of her prcsent aalary. Plain-
U.S.C.A.Crcnst. Amends. 5, 14. tiff responded by letter of June l, 1977,

6. Constitutional Law e2?8.5({) accepting the new position with "sadness

Due process rcsponsibilities of employ- and protest." on July 14, 1977, plaintiff

ing authority need not be earried out if accepted a full-time teaching position with

teacher voluntarily tcrminates her employ- another university effective August 22'

ment. U.S.C.A.Const. Amends. 5, 14. L977. She sent a letter of resignation to

?. conetitutionat r,aw e278.5(1) ffirl;ff;l'fiil,Tf 
it that she had ac-

nal Lrw e277(21
dth tenure had constitutional-
rrcperty interest which could
rated without opportunity ofle pnocess. U.S.C.A.C,onst.

nel Lrw F27S.4(5)
ss does not rrcquire preter-
ng in moot cases of termina_
employment, only a postter_
tunity to be heard. U.S.C.A.
t4.

ral Lrr c-278.5(4)
lll(5)
ro due pnoqess requirement
viding opportunity for hear-
who has been terminated; it
ing to challenge termination
ive to request hearing. U.S.
:nd. 14.

I Univereitlee 68.I(l)
rr state statute governing
e teacher, it is reaponsibility
eacher to file notice of ap.
days after diemisssl. Code

16-21-10; U.S.C.A.Congt.

Unlvenltles 68.f({)
il hr c$(f)
ro was not unawane of reso-
Board of Erlucation eetsb
committee for hearing ad-
peale, who delayed more
fter notice of her termina-
rg rcquest for hearing on

Tenured teacher who was granted full
evidentiary hearing on her termination due
to decreased enrollment within ehort time
after she rcquested it despite her delay of
more than 150 days in requesting hearing,
her giving notice of rcsignation, and her
acceptanoe of other employment, received
posttermination procedural due pnooess

even though ghe had plrcviously waived her
right to hearing. Code of Ala.l975, SS fG-
?A-10, lG{0-lll; U.S.C.A.Const. Amends.
6, 14.

Joseph E. Carr, IV, Ala. &lucation Aesn.,
Montgomery, for appellant.

H. Neil Taylor, Russellville, for appellee,
Northwest Alabama State Junior College.

Charlee S. Coody, Montgomery, for the
Alabama Stat€ Bd. of Ed. and the Statc
Superintendent of &1.

WRIGET, Presiding Judge.

Plaintiff appeels fipm a summary judg-
ment rendered in favor of defendants. lVe
affirm.

Plaintiif waa a teacher with rights of
tenure at defendant college. Such rights
arcse frcm the provisions of $ lrelll,
Code of Alabama (f975) and rules and rcgu-
lations duly adopted under authority of said
ststut€ by the Alabama State Board of
&lucation.

The facts grrring riae to the present con-
troveray were stipulated below and arc ab

On Septcmber 16, 1977, counsel for the
Alabama Education Aesociation rcguested
of the State Superintendent of &lucation,
on plaintiff's behalf, that she be granted a

hearing as to the cause of the non-renewal
of her contract by the "@llege." On No-
vember 10, 1977, plaintiff was notified that
she would be afforded an evidentiary hear-
ing on December 8, 1977 befole an ad hoc

committee established for such purpose by
rcsolution of the State Board of &lucation.

The hearing was duly held with all par-
ties appearing with oounsel. The commit-
tee upheld the non-renewal of plaintiff's
contract because of a justifiable decrease in
tcaching positions. The Board of Education
adopted the finding and report of the eom-

mittee on May 10, 1978.

On the l5th day of June, 1978, counsel
filed a class action on behalf of plaintiff
and others aeeking a declaration that the
termination of plaintiff's contract was un-
constitutional for lack of due proccss and
that the defendants be restrained from ter-
minating her contraet. After eonsideration
of the etipulation heretofore cited, exhibits
and the transcript of the hearing before the
ad hoc oommittee, the trial court entercd
sumnrary judgment in favor of defendants.

Plaintiff has failed to stat€ an igsue for
appeal, but has submitted five propoeitions
of law and presentcd argument thercon in
brief and orally before the court. Of
oourEe, the primary issue is whether in light



428 Ala

of the absence of diapute as to any material
fact, plaintiff was not entitled to the relief
she sought as a matter of law; r'. e., did the
court corectly grant summsry judgment to
defendants? Rule 56(c), ARCP.

In deciding that issue therc arc two ques-
tions to answer. First, did plaintiff accept
her non-renewal or resign from the service
of the "college" without requesting a hear-
ing?

It has previously been shown that plain-
tiff responded to the notice of the non-rc-
newal of her contract and the accompany-
ing offer of a part-time position by a letter
written forty-eight days later. She said in
her letter that she accepted the offered
position with sadness and protest and was
sorry that her position of tenure had been
abolished. Ther"e was no request for a
hearing. Forty-five days later, plaintiff
tendered her resignation as a member of
the "college" faculty with notice that she
had acceptcd full-time employment else-
where. She still had requested no hearing.
It was not until another sixty-three days
had expired and she had entered the duties
of new employment that plaintiff's counsel
rcquested a hearing. Thus a total of one
hundred fifty-six days expired fiom notice
of non-renewal until the request for hear-
ing. In the interim plaintiff had accepted a
part-time position with the "college," r€-
signed fiom the faculty of the "college" and
accepted full-time employment with anoth-
er institution.

f l4t As a t€ac!9lt4!ble!srs-pb!qt-i!f
hadaco@
ine-rest -wfrid[ coiiia' not be terminatcd
wit
proceE-@ v. sindermann, 408 u.s.
593, 92 S.Ct. 2694, 3il L.&t.zd 570 (1912);
Board of Regents v. Rpth,408 U.S. ffi,92
S.Ct. 2701, 8il L.Ed.Zt 548 (1972); Slachow-
er v. Board of &lucation, 350 U.S. 551, ?6

S.Ct. 6i17, f00 L.&1. 692 (1956). However, it
has been declared by the Supreme Court
that due priooess does not rrquirc a pre'tcr-
mination hearing in most cases, only a post-
termination opportunity to be heerd. Ar-
nett v. Kenndy,4f6 U.S. 134,94 S.CL 1633,

40 L.&1.2d 16 (197a); ilIorgan v. Fletther,

37I SOUTHERN REPORTER, 2d SERIES

518 F.Zt 236 (5th Cir. f9I5). Therc is no
due prucess requirement other than provid-
ing opportunity for a hearing. It is the
teacher desiring to challenge the termina-
tion who has the initiative to reguest a
hearing. Arnett v. Kennedy, supra, Stnw-
art v. Bailey,556 F.2d 281 (5th Qir. f977).
Even under the st8t,e tenurrc st8tut€ S 16-
24-10, it is the responsibility of a terminat
ed teacher to file notice of an appeal within
fifteen days aftcr dismissal. There is no
contention nor evidence presented that
plaintiff was not awarc of the resolution of
the Statc Board of &lucation estsblishing
the ad hoc committee for hearing adminis-
trative appeals. lt may be said that a delay
of over one hundred fifty days in filing a
request for a hearing constitutes an unrea-
sonable delay and was a waiver or abandon-
ment of plaintiff's due process rights.
When coupled with the stipulated facts that
plaintiff first acceptcd non-tenewal through
acceptance of the proffered part-time posi-
tion and subsequently resigned fipm the
employment of the "college" and accepted
another full-time position, it is without le'
gal question that waiver of a hearing had
occuned. It is well settled that due pnooe$t

responsibilities of the employing authority
need not be earried out if the tcacher volun-
tarily tcrminates her employment, Hardy
v. ,Porter, 546 F.2d U65 (5th Cir. 1977);
Janett v. Shelby County Boart ol kluca-
tion, il9 So.% 18 (Ala.l9l?); Stcwart v.

Bailey, supra.

The second question of whether in fact
and as a matter of law the plaintiff re-
ceived constitutionally required due prccess
must be answered affirmatively. That af-
firmative answer is, in our opinion, further
dispositive of the first question.

t?l Plaintiff's complaint in brief as to
lack of due process appearc premised upon
an accusation of delay in providing a hear-
ing. We have previously said that it is the
responsibility of the teacher to request the
pnocess of hearing. The evidenec is without
dispute that plaintiff was granted e full
evidentiary hearing within a short time af-
ter rcqueot in spite of her delay of morc
than one hundred fifty days and her notice

of nesignation and acccptanc
ploymenl It hadly seems t
plaintiff san now complain
lege" or the board of educr

afford her a timely hearing.
it seem that plaintiff, havin
hearing she r€quest€d and

an advense conclusion, should

to challenge its constitutiona
a subsequent action. Ashwa
w Valley AuthoritY,nT U-

466, 80 LEd. 688 (1936).

It is the opinion of the ct

tiff received post-terminat
due process even though she

waived her right to a heari
ment below is affirmed.

AFFIBMED.

BRADLEY and HOLME

John L JACO

v.

STATE.

6 Div. 388.

Court of Criminal Appeal

Oct. 4, 1977

After Remandment Mr

Rehearing Denied Jun

Defendant was convict
erurt, Blount County, L.
murder and was senteneed
fendant appealed. The C<

Appeala, Harris, J., held tl
dence justified the imposit
penalty, and (2) the recond
defendant'r court aPPointr
five yean prior experienr
practice of criminal law as

Death Penalty AcL