PUBLISHED OPINION
Case No.: 94-0199
Complete
Title
of
Case:MADISON
METROPOLITAN SCHOOL DISTRICT,
Petitioner-Respondent,
v.
WISCONSIN DEPARTMENT OF PUBLIC
INSTRUCTION,
LEE SHERMAN DREYFUS,
INTERIM STATE SUPERINTENDENT OF PUBLIC
INSTRUCTION,
Respondents-Appellants.
Submitted
on Briefs: October 6, 1994
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: December 28, 1995
Opinion
Filed: December
28, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Jack
F. Aulik
so
indicate)
JUDGES: Eich,
C.J., Gartzke, P.J., and Sundby, J.
Concurred: Sundby,
J.
Dissented:
Appellant
ATTORNEYSFor the respondents-appellants the
cause was submitted on the brief of James E. Doyle, attorney general,
with Warren D. Weinstein, assistant attorney general.
Respondent
ATTORNEYSFor the petitioner-respondent the
cause was submitted on the brief of Jill Weber Dean and Frank C.
Sutherland of Lathrop & Clark of Madison.
COURT OF
APPEALS DECISION DATED AND
RELEASED December
28, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-0199
STATE OF WISCONSIN IN
COURT OF APPEALS
MADISON
METROPOLITAN SCHOOL DISTRICT,
Petitioner-Respondent,
v.
WISCONSIN
DEPARTMENT OF PUBLIC INSTRUCTION,
LEE
SHERMAN DREYFUS,
INTERIM
STATE SUPERINTENDENT OF PUBLIC
INSTRUCTION,
Respondents-Appellants.
APPEAL
from an order of the circuit court for Dane County: JACK F. AULIK, Judge. Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Sundby, J.
GARTZKE,
P.J. Madison Metropolitan School
District suspended and later expelled a Madison middle school pupil. The state superintendent of public
instruction reversed the expulsion decision, and the circuit court reversed the
state superintendent's decision. The
department of public instruction and the state superintendent appeal from the
circuit court's order.
The
issues are whether (1) the state superintendent exceeded his authority when he
ruled that the district failed to comply with the time limit on a suspension
under § 120.13(1)(b), Stats.,
the controlling statute; (2) the state superintendent lacked authority to
review a "home study agreement" in an expulsion proceeding; and (3)
the student on homebound study was suspended within the meaning of
§ 120.13(1)(b). We hold that the
state superintendent lacked authority to review the suspension. We affirm the judgment.
I. FACTS
On
December 4, 1992, a seventh grade pupil brought an unloaded BB pistol to his
Madison middle school. An assistant
school principal suspended the pupil for three days for bringing the gun to
school.
On
December 9, 1992, the pupil and his parents met with principal Dr. Marvin
Meissen and assistant superintendent of secondary education Dr. Shirley
Baum. The pupil's mother signed an
offer of homebound studies agreement.[1] The agreement provided that the pupil would
receive homebound instruction from December 9, 1992, to January 15, 1993.[2] The homebound instruction program provides a
pupil with "one-on-one" educational services from a teacher outside
the school for at least two hours a day, five days a week. Dr. Baum stated on the form that she
recommended homebound instruction because of expulsion.
The
district considers the homebound studies agreement as part of a larger
agreement concerning the expulsion. It
contends that the meeting produced an "oral agreement" on a
disposition which included expulsion for a limited period combined with
homebound instruction prior to the expulsion.
On
December 11, 1992, Dr. Meissen wrote to the pupil and his parents, stating that
the letter "confirms the decision to expel you" and invoking the
school policy that required him to recommend that action. He enclosed a copy of the three-day
suspension form that had been signed on December 4.
The
parents obtained counsel who requested a meeting with Dr. Baum. At the meeting on January 20, 1993, the
district refused to consider placement in homebound instruction as a sufficient
disposition in lieu of expulsion. The
same day the district issued notices of expulsion to the pupil and his family,
setting a hearing date for January 26.
The parties agreed to postpone the hearing until February 4. At the hearing, Dr. Baum recommended that
the student receive a nine-week period of no services.
On
February 22, 1993, a hearing officer recommended expulsion and ordered the
homebound instruction continued until the district school board acted on his
decision. On March 15 the school board
approved an amended version of the order.
The board directed that expulsion begin immediately and continue to the
end of the second semester of the 1992-93 school year but that the district
offer an alternative Madison School District program on April 19, 1993, until
the end of the semester.
The
pupil appealed his expulsion to the state superintendent. On May 17, 1993, the superintendent, in
the person of the deputy superintendent, found that the pupil had not been
permitted to return to school after the fifteen-day suspension authorized in
§ 120.13(1)(b), Stats., had
expired and that the suspension continued, notwithstanding the homebound study
agreement. The state superintendent
concluded that the school board had failed to comply with all of the procedural
requirements of § 120.13(1)(b), the suspension subsection, and
§ 120.13(1)(c), an expulsion statute.
He reversed the expulsion.
The
circuit court held that the state superintendent has no authority to review
procedural errors concerning suspensions under § 120.13(1)(b), Stats., and a procedural error under
that subsection did not invalidate the expulsion.
Other
facts will be stated in our opinion.
II. SCOPE OF APPELLATE REVIEW
We
review the department's decision, not that of the trial court, WSEU v.
Wisconsin Employment Rel. Comm'n, 189 Wis.2d 406, 410, 525 N.W.2d 783,
785 (Ct. App. 1994), but our review is identical to that of the circuit
court. Boynton Cab Co. v. DILHR,
96 Wis.2d 396, 405-06, 291 N.W.2d 850, 855 (1980). We must set aside or modify the superintendent's decision if we
find he erroneously interpreted a provision of law. Section 227.57(5), Stats.
Like
the heads of all administrative agencies, the state superintendent possesses
only such power as is expressly conferred or necessarily implied from the
statutes under which he operates. Grogan
v. Public Service Comm'n, 109 Wis.2d 75, 77, 325 N.W.2d 82, 83 (Ct.
App. 1982). The extent of that
authority is a question of law. Wisconsin
Power & Light v. PSC, 181 Wis.2d 385, 392, 511 N.W.2d 291, 293
(1994). We owe no deference to an
agency's determination concerning its own statutory authority. Id.
III. STATUTES INVOLVED
The
pertinent statutes are § 120.13(1)(b) and (c) and (e), Stats.
The relevant parts of those statutes are as follows:
The
pupil suspension subsection, § 120.13(1)(b), Stats., provides
The school district administrator or any principal or
teacher designated by the school district administrator also may ... suspend a
pupil for not more than 3 school days or, if a notice of expulsion hearing has
been sent under par. (c) or (e) ..., for not more than a total of 15
consecutive school days for noncompliance with ... school board rules, or ...
for conduct by the pupil while at school ... which endangers the property,
health or safety of others ....
One
pupil expulsion subsection, § 120.13(1)(c), Stats., provides
The school board may expel a pupil from school whenever
it finds the pupil guilty of repeated refusal or neglect to obey the rules, ...
or finds that the pupil engaged in conduct while at school ... which endangered
the property, health or safety of others ... and is satisfied that the interest
of the school demands the pupil's expulsion.
Prior to such expulsion, the school board shall hold a hearing.... The expelled pupil or, if the pupil is a minor,
the pupil's parent or guardian may appeal the expulsion to the state
superintendent.... [T]he state
superintendent shall review the decision and shall, upon review, approve,
reverse or modify the decision. The
decision of the school board shall be enforced while the state superintendent
reviews the decision. An appeal from
the decision of the state superintendent may be taken within 30 days to the
circuit court of the county in which the school is located.
An
alternative expulsion subsection, § 120.13(1)(e)1.b., Stats., provides that a school board
may adopt a resolution authorizing an independent hearing officer appointed by
the board to determine expulsions.
Section 120.13(1)(e)2 provides that
the independent hearing officer ... may expel a pupil
from school whenever the hearing officer ... finds that the pupil engaged in
conduct that constitutes grounds for expulsion under par. (c).... Within 30 days after the date on which the
order is issued, the school board shall review the expulsion order and shall,
upon review, approve, reverse or modify the order. The order of the hearing officer ... shall be enforced while the
school board reviews the order. The
expelled pupil or, if the pupil is a minor, the pupil's parent or guardian may
appeal the school board's decision to the state superintendent.... [T]he state superintendent shall review the
decision and shall, upon review, approve, reverse or modify the decision. The decision of the school board shall be
enforced while the state superintendent reviews the decision. An appeal from the decision of the state
superintendent may be taken within 30 days to the circuit court of the county
in which the school is located.
IV. SUPERINTENDENT'S AUTHORITY TO REVIEW
SUSPENSION
ERRORS IN AN
EXPULSION[3]
It
is beyond dispute that a pupil or his or her parents or guardian has no right
of appeal to the state superintendent because of error in a suspension
proceeding under sub. (1)(b). Nor does
that provision expressly confer on the state superintendent the power to review
a suspension. Subsection (1)(b)
contains no reference whatever to an appeal under any circumstances to the
state superintendent or review by that officer.
It
is also beyond dispute that sub. (1)(c) and (e) confer on a pupil or his or her
parents or guardian an unqualified right to appeal an expulsion decision to the
state superintendent and direct him to review it. Nothing in sub. (1)(c) and (e) expressly authorizes the
superintendent to review a challenged suspension when the superintendent
reviews an expulsion decision.
In
the absence of an express authorization to the state superintendent in an
expulsion appeal to review a suspension, the question is whether the
legislature impliedly granted him that power.
However,
if the school district did not err when it prevented the pupil's return to
school after fifteen days from the notice of expulsion, we need not decide
whether the state superintendent has the power to review the suspension. If the school district did not err, the
state superintendent based his order reversing the school district's expulsion
decision on a false premise, and his order must be reversed for that reason
alone.
We
conclude that a school district errs when it fails to permit a pupil to return
after a fifteen-day suspension expires.
The only reasonable reading of sub. (1)(b) is that if a pupil is given a
notice of expulsion hearing under sub. (1)(c) or (e), then the maximum
permissible suspension is "a total of fifteen consecutive school
days."[4] The purpose of the fifteen-day maximum
suspension must be to give the district time to hold the hearing and decide
whether to expel the student. If
expulsion does not result within the fifteen-day period, the suspension ends
and the pupil may return to school. If
expulsion is ordered after a fifteen-day suspension ends and the pupil has
returned to school, the pupil is expelled from and after the date of the
expulsion order.
The
school district argues that the pupil's mother, by signing the offer of
homebound study agreement, waived or extended the fifteen-day suspension. The state superintendent concludes that
neither waiver nor extension occurred.
Waiver and extension raise questions of mixed fact and law. Reckner v. Reckner, 105 Wis.2d
425, 435, 314 N.W.2d 159, 164 (Ct. App. 1981).
Because the state superintendent may not review a sub. (1)(b)
suspension, his conclusions and the factual findings on which they are based
are nullities. For that reason, we
leave the waiver and extension issues without further discussion.
We
turn to whether the legislature impliedly granted the state superintendent
power to review a sub. (1)(b) suspension in an appeal from an expulsion
decision under sub. (1)(c) or (e). We
conclude it did not.
Administrative
powers are not freely and readily implied.
Any reasonable doubt as to the existence of an implied power in an
agency should be resolved against it. Kimberly-Clark
Corp. v. Public Service Comm'n, 110 Wis.2d 455, 462, 329 N.W.2d 143,
146 (1983). Whether a power is to be
implied turns on the intent of the legislature. Id. Intent
to confer such power may be inferred when the power rises from fair implication
from expressed powers, Wisconsin Environmental Decade, Inc. v. PSC,
69 Wis.2d 1, 16, 230 N.W.2d 243, 251 (1975), or if the power is necessarily
implied by the statutes under which an agency operates. Kimberly-Clark Corp., 110
Wis.2d at 461-62, 329 N.W.2d at 146; Racine Fire & Police Comm. v.
Stanfield, 70 Wis.2d 395, 399, 234 N.W.2d 307, 309 (1975).
The
power to review a suspension decision in an expulsion appeal cannot be fairly
implied from sub. (1)(c) or (e), and we do not understand the state
superintendent to argue otherwise. The
state superintendent asserts, however, that he must, of necessity, hold
authority to invalidate an expulsion preceded by an invalid suspension. He asserts that otherwise a school district
could violate sub. (1)(b) with impunity, even though it intends to pursue an
expulsion. The district could suspend a
student for as many days as the district desires, and no need would exist for
the fifteen-day suspension limit when notice of an expulsion hearing has been
given. This, we are told, leads to an
absurd result, and, of course, absurd results are to be avoided when
interpreting a statute. DeMars v.
Lapour, 123 Wis.2d 366, 370, 366 N.W.2d 891, 893 (1985).
We
acknowledge the force of the state superintendent's contention that his
inability to review a faulty suspension order, when reviewing an expulsion
order, allows a district to violate sub. (1)(b) with impunity, so far as review
by the state superintendent is concerned.
But it does not follow that the state superintendent must, of necessity,
be able to review suspension in an expulsion appeal.
The
inability of the state superintendent to review a suspension is not critical to
a state superintendent's power to review an expulsion under sub. (1)(c) or
(e). The state superintendent can
review an expulsion, regardless whether suspension was improperly imposed. Nothing in the suspension provision, sub.
(1)(b), even suggests that the superintendent must be able to review a
suspension.
Suspension
is a local matter. It occurs at a level
different from that at which the state superintendent operates. In 1973, when the statute relating to
suspension and expulsion was amended, the legislature described the purpose of
suspension as follows:
The legislature finds that suspension of a pupil from
school is for the purpose of bringing the pupil, his parent or guardian,
teachers, counselors and school officials together to discuss and resolve the
pupil's academic and disciplinary problems.
Laws of 1973, Chapter 94, § 1 (second
sentence). Expulsion is reviewable at
the state superintendent's level, but review of a suspension at that level is
not necessary to accomplish the legislature's purpose behind suspension. Moreover, suspension is a less serious
interruption of the student's attendance, because no suspension can exceed
fifteen consecutive school days.
It
may be that if a suspended student is not allowed to re-enter school following
a fifteen-day suspension, in the absence of other circumstances, the suspension
is tantamount to expulsion. If so, a
school district may cause a de facto expulsion by unlawfully extending a
suspension. We see little difference
between a suspension and expulsion in § 120.13(1), Stats., except the duration of the time the student is not
permitted to re-enter school. However,
the reviewability of a de facto expulsion by the state superintendent or by the
courts is not argued, and we do not reach it.
Moreover,
we cannot overlook our admitted dicta in a 1982 decision. We said,
[W]e point out, obiter dicta, that the
superintendent's review of a board's expulsion hearing would appear to be
limited by the statute which created that appeal, namely sec. 120.13(1)(c),
Stats. The superintendent's review,
then, would be one to insure that the school board followed the procedural
mandates of subsection (c) concerning notice, right to counsel, etc.
Racine Unified School Dist. v. Thompson, 107 Wis.2d 657, 667, 321 N.W.2d 334, 339 (Ct. App. 1982). In 1982 sub. (1)(e) did not exist, but what
we said regarding sub. (1)(c) applies as well to sub. (1)(e) for purposes of
determining the implied powers of the state superintendent over sub. (1)(b)
suspensions. Racine did
not involve the superintendent's power in an expulsion appeal to invalidate a
preceding suspension, but the breadth of our dicta makes it arguably applicable
to such a case.
Because
the state superintendent has applied our Racine dicta, and its
applicability to sub. (1)(b) has survived legislative activity regarding
§ 120.13(1), Stats., we
conclude that we should give considerable weight to our dicta on the issue
before us. See Beloit
Corp. v. DILHR, 63 Wis.2d 23, 31-32, 216 N.W.2d 233, 238 (1974)
(reliance by legal profession on case given publicity indicates legislature
probably acquiesced in dicta).
On
several occasions the state superintendent has cited our Racine
dicta for the proposition that the scope of the state superintendent's review
is limited to § 120.13(1)(c), Stats.,
and impliedly sub. (1)(e).[5] And we conclude from that frequency that our
Racine dicta is embedded in Wisconsin school law with respect to
the issue before us.
Finally,
some five years after we announced our Racine dicta, the
legislature considered the power of the state superintendent to review an
expulsion order. It amended sub. (1)(c)
to provide that the superintendent has the authority to "review, approve,
reverse or modify" a school board's expulsion decision and created sub.
(1)(e) with the same language. 1987
Wis. Act 88, §§ 3 and 4. Prior to
the amendment, the statute did not specify the duties of the state
superintendent in an expulsion appeal. Id. This is no occasion for us to construe the
meaning of the language "review, approve, reverse or modify." The 1987 legislation shows, however, that
notwithstanding the attention it has given to the powers of the state
superintendent to review an expulsion decision under sub. (1)(c) and (e), the
legislature has not expanded the state superintendent's authority to include
review of a suspension order under sub. (1)(b), in an expulsion appeal or
otherwise.
Because
we conclude that the state superintendent lacks authority to review a
suspension order in an appeal from an expulsion order under
§ 120.13(1)(e), Stats., we
hold that the circuit court properly reversed the state superintendent's
decision. We affirm the order of the
circuit court.
We
do so without discussing the due process issues raised in the concurring
opinion. No due process issue regarding
§ 120.13(1)(b), Stats., was
raised or discussed by the parties.
By
the Court.—Order affirmed.
No. 94-0199(C)
SUNDBY,
J. (concurring). I concur in the
majority's conclusion that the state superintendent of public instruction erred
in reversing the expulsion of Lenny R. by the Madison Metropolitan School
District Board of Education. I believe
it should be explained that the fifteen-day suspension under
§ 120.13(1)(b), Stats., is a
disciplinary action and does not establish a time within which the board must
act on a proposed expulsion.
At
its March 15, 1993 meeting, the board of education adopted the examiner's
decision[6]
expelling Lenny "through April 23, 1993." However, the board amended the examiner's decision to provide
that Lenny was expelled upon entry of the board's order to the end of the
second semester of the 1992-93 school year, but that beginning April 19, 1993,
the district would offer "homebound" instruction to Lenny until the
end of the semester. The state
superintendent reversed the expulsion because he concluded the board lost
competency to hear the charges against Lenny because it did not complete the
expulsion process within fifteen days after notice of the charges and hearing was
served. The superintendent also
concluded that the board erred in using the homebound program as a disciplinary
tool. I conclude that the
superintendent's decision in this respect is moot.
The
superintendent reads § 120.13(1)(b),
Stats., to require the school board to act on a notice of expulsion
within fifteen days after the five-day notice of the proposed expulsion is
given the child and the child's parents or guardian. In other words, the fifteen-day notice is an integral part of the
expulsion proceedings and if the board does not act within that time, it loses
jurisdiction or competency to expel the student. I disagree. I conclude
that the fifteen-day period of suspension is disciplinary and is subject to the
due process requirements of sub. (1)(b) and is not part of the due process
procedures to hear expulsion charges.
Section
120.13(1)(b), Stats., provides in
part:
The school
district administrator or any principal ... may suspend a pupil for not more
than 3 school days or, if a notice of expulsion hearing has been sent under
par. (c) or (e) ... for not more than a total of 15
consecutive school days for noncompliance with ... school board rules ....
(Emphasis added.)
The
school district administrator or his or her designee may suspend a pupil
without review or approval by the school board. No hearing is required but, "[p]rior to any suspension, the
pupil shall be advised of the reason for the proposed suspension." Id. I strongly suspect that the drafters of § 120.13(1)(b), Stats., had read Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532 (1985), where the Court
held that a conference with a school teacher prior to discharge satisfied the
requirements of procedural due process, provided the teacher had notice and an
opportunity to be heard within a reasonable time after his or her discharge or
suspension. Section 120.13(1)(b)
further provides that the suspended pupil or the pupil's parent or guardian
may, within five school days following the commencement of the suspension,
request a conference with the school district administrator or his or her
designee who shall be someone other than an official in the pupil's
school. The school district
administrator or his or her designee may make a finding within fifteen days of
the conference that the suspension was unjustified, whereupon reference to the
suspension in the pupil's school records "shall be expunged." Id. Whether these latter procedures satisfy procedural due process is
not an issue in this case.
Although
the fifteen-day period of suspension is triggered by notice of proposed
expulsion, that notice has nothing to do with the expulsion proceedings. Section 120.13(1)(e)2, Stats., provides in part: "[T]he independent hearing officer or
independent hearing panel ... may expel a pupil from school whenever the
hearing officer or panel finds that the pupil engaged in conduct that
constitutes grounds for expulsion under par. (c)." The district must give five days' notice of
the charges against the pupil and the time and place of the hearing. Subdivision 2 does not require that the
hearing on the charges be held within any particular time, although due process
requires that any disciplinary charges be heard within a reasonable time. The statute does not mention the fifteen-day
suspension.
I
agree with the state superintendent that § 120.13(1)(b), Stats., does not permit the school
district administrator or his or her designee to suspend a pupil for more than
fifteen consecutive school days.
However, it is not up to the state superintendent to correct the
administrator's or designee's error.
That is up to the courts.
There
is nothing in the statute which permits the state superintendent to review the
school board's fifteen-day suspension under § 120.13(1)(b), Stats.
Lenny was not denied procedural due process by the procedures prescribed
in § 120.13(1)(e)2. He and his
parents got notice of the proposed grounds for expulsion, got written notice of
the hearing, were heard by the hearing officer, got notice of the reasons for
his expulsion, got review by the school board of his expulsion and appeals to
the state superintendent and the circuit court. I do not see how failure of the school board to hold the
expulsion hearing within fifteen days of the expulsion notice violated Lenny's
procedural due process rights or failed to follow the statutory procedure.
While
I agree with the state superintendent's conclusion that homebound instruction
may not be imposed as discipline, I find nothing in the applicable statutes to
preclude a district from suspending a pupil and then providing homebound
instruction to that pupil so that his or her educational needs continue to be
met when it is necessary to remove a pupil from the general population for
whatever reason. However, I do not
believe that issue is involved in this case because the state superintendent
has no statutory authority to interfere with the local school district's
decision as to when to use the homebound instruction program.
For
these reasons, I concur in our decision affirming the decision of the circuit
court reversing the state superintendent's action. However, I do not join the majority's opinion.[7]
[1] The homebound study program is
statutory. Section 118.15(1)(d), Stats.
Any child's parent or guardian, or the child if the
parent or guardian is notified, may request the school board, in writing, to
provide the child with program or curriculum modifications, including but not
limited to:
...
5. Homebound
study, including nonsectarian correspondence courses or other courses of study
approved by the school board or nonsectarian tutoring provided by the school in
which the child is enrolled.
[2] The homebound instruction continued after
January 15, 1993, until the student's expulsion two months later.
[3] The parties unaccountably discuss this appeal
in terms of a sub. (1)(c) expulsion.
The appeal involves a sub. (1)(e) expulsion. It was noticed as such to the pupil and his parent, and tried as
such by an independent hearing officer appointed as provided in sub.
(1)(e)1.b. The examiner prepared
findings, conclusions and a proposed expulsion order which the school board
reviewed and modified, all as provided in sub. (1)(e)2. A transcript of the hearing record was
prepared and furnished to the pupil's parent, as provided in sub. (1)(e)2. The expulsion order was based on conduct
which constitutes grounds for expulsion under sub. (1)(c), as required under
sub. (1)(e)2, but that did not convert this into a sub. (1)(c) expulsion. The error confuses the discussion but does
not affect our disposition.
[4] The legislature has given considerable
attention to the maximum suspension and has repeatedly lengthened it. In 1973 it expanded the maximum time of
suspension from three to seven days.
Laws of 1973, Chapter 94, § 3.
In 1989 it expanded the maximum time from seven to ten days. 1989 Wis. Act 31, § 2317b. In 1992 it expanded the time from ten to
fifteen days. 1991 Wis. Act 269,
§ 650q.
[5] In the Matter of Expulsion of Nancy Z.,
Decision and Order No. 139, 86-EX-05 (May 23, 1986); In the Matter of
Expulsion of Jessie K., Decision and Order No. 131, 85-EX-03 (June 17,
1985); In the Matter of Expulsion of Joshua K., Decision and
Order No. 216, 93-EX-14 (January 31, 1994); In the Matter of Expulsion of
Bradley B., Decision and Order No. 107 (February 15, 1983); In
the Matter of Expulsion of Raymond M., Decision and Order No. 110
(February 27, 1983); In the Matter of Expulsion of Jolene M.,
Decision and Order No. 112 (May 9, 1983); In the Matter of Expulsion of
Michaelene J., Decision and Order No. 161, 89-EX-02 (May 19, 1989); In
the Matter of Expulsion of Brandon H.D., Decision and Order No. 206,
93-EX-03 (May 3, 1993); In the Matter of Expulsion of John R.,
Decision and Order No. 117 (February 9, 1994);
In the Matter of Expulsion of Michael C.G., Decision and
Order, 93-EX-16 (February 11, 1994); In the Matter of Expulsion of Brad
S., Decision and Order No. 221, 94-EX-02 (March 7, 1994). In Nancy Z., Jessie K.
and Joshua K., the state superintendent held he lacked the power
to review a sub. (1)(b) suspension in an expulsion appeal.
[6] The school board adopted the alternative
expulsion procedure under § 120.13(1)(e)2, Stats., pursuant to which an independent hearing officer may
expel a pupil after hearing, subject to review by the school board, appeal to
the state superintendent, and judicial review.
[7] The majority would not reach the
"issue" I advance to support the trial court's decision, on the
grounds that this "issue" has not been raised. The difference between an
"argument" and an "issue" is not often appreciated. See State v. Weber, 164
Wis.2d 788, 789 & n.2, 476 N.W.2d 867, 868 (1991). "Once a case is before the court, the
court may, within its discretion, `review any substantial and compelling issue
which the case presents.'" Id.
at 795 n.6, 476 N.W.2d at 870 (Abrahamson, J., dissenting) (quoting Univest
Corp. v. General Split Corp., 148 Wis.2d 29, 32, 435 N.W.2d 234, 238
(1989)). If we do not retain our
independence to decide cases based on the law, we become arbitrators, not
judges. The issue of the nature of the
fifteen-day suspension is, in my opinion, a far more compelling issue than that
decided by the majority. I believe we
should follow our customary practice when a dispositive argument has not been
noted by the parties; we should request supplemental briefs.
This
appeal illustrates the value of a separate opinion in an intermediate appellate
court. This case is likely to reach the
Wisconsin Supreme Court and the court should have the benefit of a concurring
judge's view of the law. The Chicago
Council of Lawyers recently evaluated the United States Court of Appeals for
the Seventh Circuit. See Chicago
Council of Lawyers, Evaluation of the United States Court of Appeals for the
Seventh Circuit (1994). The Council
stated: "The Council believes ...
that separate opinions serve a real purpose." Id. at 11.
The most persistent criticism of the Seventh Circuit judges was that
they did not write separately enough.
When addressing the Supreme Court Historical Society June 13, 1994,
Justice Scalia stated: "A second
external consequence of a concurring or dissenting opinion is that it can help
to change the law. That effect is most
common in the decisions of intermediate appellate tribunals." Justice Scalia Delivers Nineteenth Annual
Lecture: Discusses Dissenting and Concurring
Opinions in Court History, The
Supreme Court Historical Society Quarterly, vol. XV, at 19. The Council observed that: "There is relatively little scholarly
literature on the virtues and vices of separate opinions, and most of it
focuses on the U.S. Supreme Court."
Chicago Council of Lawyers at 11 n.11.
I have recently completed a survey of the chief judges of all state
intermediate appellate courts to provide such literature.