Mary D. FORMAN, a widow, Petitioner,
CREIGHTON SCHOOL DISTRICT NO. 14, a body politic, R. O. 'Bob' Feddersen, et al., members of Board of Trustees and Edwon L. Riggs, Superintendent thereof, Respondents.
Herbert Mallamo, Phoenix, for petitioner.
Charles C. Stidham, County Atty., Paul D. Levie, Chief Civil Deputy, Phoenix, for respondents.
[87 Ariz. 330] This is an original proceeding asking that a writ of certiorari be issued to Creighton School District No. 14 and its Board of Trustees, commanding them to certify to this Court for review the transcript of record and proceedings held and conducted on the 29th day of December, 1959.
In the application it is alleged that petitioner is a 'continuing teacher' as defined in the 'Teachers' Tenure Act' (A.R.S. § 15-251 et seq.); that she was granted a renewal of her continuing contract for the school year 1959-1960; that she was subsequently served with notice of the termination of her contract of employment to which she responded by demanding a public hearing before the Board of Trustees; that the time and place of the hearing having been designated she appeared in person and was represented by counsel, but that the respondents refused to conduct a fair and impartial hearing, or any hearing in law, in that she was denied the right to examine or to cross-examine the witnesses who testified against her, and was therefore denied due process of law under the federal and state constitutions; and, that on January 5, 1960 the respondents acting in excess of or wholly without
jurisdiction made a decision affirming the notice of dismissal terminating her continuing contract.
At an informal hearing held on application for writ of certiorari, the parties concerned being represented by counsel, respondents admitted that petitioner's attorney was denied the right to cross-examine the witnesses who appeared against his client. Ordinarily a writ of certiorari would not have issued out of this Court to an administrative board in a matter of this character. But the refusal of the Board to permit counsel for petitioner to cross-examine a witness who had, in effect, made an argument rather than a statement of fact against petitioner, and which of necessity was based upon what others had related to the witness so definitely violated the due process clause of the 14th amendment of the Constitution of the United States, and art. 2, section 4 of our State Constitution, A.R.S. that, we felt the writ should issue in order that boards of trustees may be advised concerning the procedure to be followed. The failure of the chairman of the Board to follow at least in some slight degree the decorum established by usage in quasi-judicial proceedings was also a factor considered in ordering the writ to be issued. In response to the order in the writ, the respondents caused the transcript and records of the proceedings in question to be certified to this Court.
The questions thus presented are as follows: (1) whether the order of the Board of Trustees which issued pursuant to a hearing in which petitioner was denied the right to cross-examine witnesses appearing against her, denied to her due [87 Ariz. 331] process of the law; and, (2) whether certiorari to this Court is the proper remedy.
In connection with the first question, our research indicates that the oeverwhelming weight of authority holds that for an administrative body, conducting a quasi-judicial hearing, to preclude the individual concerned from cross-examining witnesses appearing against him, denies him due process of the law. Interstate Commerce Comm. v. Louisville & N. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; Southern Stevedoring Co. v. Voris, 5 Cir., 190 F.2d 275; Stapleton v. Huff, 50 N.M. 208, 173 P.2d 612; Taylor v. Lee, Utah, 226 P.2d 531; Napuche v. Liquor Control Commission, 336 Mich. 398, 58 N.W.2d 118; National Labor Relations Board v. Prettyman, 6 Cir., 117 F.2d 786; Automobile Sales Co. v. Bowles, D.C., 58 F.Supp. 469; Saltzman v. Stromberg-Carlson Telephone Mfg. Co., 60 App.D.C. 31, 46 F.2d 612. The wisdom of this rule is very well stated in some of the earlier cases where the courts were called upon to review decisions of administrative boards. For example, see Interstate Commerce Comm. v. Louisville & N. R. Co., supra [227 U.S. 88, 33 S.Ct. 187], wherein the court said:
'* * * The Commission is an administrative body and, even where it acts in a quasi judicial capacity, is not limited by the strict rules, as to the admissibility of evidence, which prevail in suits between private parties. Interstate Commerce Commission v. Baird, 194 U.S. 25, 48 L.Ed. 860, 24 S.Ct. 563. But the more liberal the practice in admitting testimony, the more imperative the obligation to preserve the essential rules of evidence by which rights are asserted or defended. In such cases the Commissioners cannot act upon their own information, as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can it test the sufficiency of the facts to support the finding; for otherwise, even though it appeared that the order was without evidence, the manifest deficiency could always be explained on the theory that the Commission had before it extraneous, unknown, but presumptively sufficient information to
support the finding. Interstate Commerce Commission v. Baltimore, etc., R.R., 226 U.S. 14, 57 L.Ed. 104, 33 S.Ct. 5.' (Emphasis supplied.)
See also, Napuche v. Liquor Control Commission, 336 Mich. 398, 58 N.W.2d 118, 120, where it was stated that:
[87 Ariz. 332] "Due process of law requires notice and opportunity to be heard. It imports the right to a fair trial of the issues involved in the controversy and a determination of disputed questions of fact on the basis of evidence.' Dation v. Ford Motor Co., 314 Mich. 152, 167, 22 N.W.2d 252, 258.
"'But there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider ...