Ex parte Monique Jackson. , 160 So. 3d 1227 ( 2014 )

REL:08/29/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________
1130194
_________________________
Ex parte Monique Jackson
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Monique Jackson
v.
Geneva County Board of Education et al.)
(Geneva Circuit Court, CV-12-900066;
Court of Civil Appeals, 2120549)
SHAW, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan,
JJ., concur.
Shaw, J., concurs specially.
Moore, C.J., dissents.
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SHAW, Justice (concurring specially).
I concur in denying the petition for certiorari review.
The petitioner, Monique Jackson, was a probationary
teacher employed by the Geneva County Board of Education ("the
Board"). Near the end of Jackson's third year of employment,
the Board opted to "nonrenew" her employment contract, and
Jackson was fired.
Jackson sued the Board, several members of the Board, and
the superintendent of the Geneva County school system
(hereinafter referred to collectively as "the defendants").
She alleged that she had been fired for impermissible
political and personal reasons. The trial court dismissed the
action, and Jackson appealed to the Court of Civil Appeals,
which affirmed the trial court's dismissal. Jackson v. Geneva
County Bd. of Educ., [Ms. 2120549, August 30, 2013] ___ So. 3d
___ (Ala. Civ. App. 2013). Jackson then sought certiorari
review of the Court of Civil Appeals' judgment.
Jackson's termination is governed by the Students First
Act of 2011, Act No. 2011–270, Ala. Acts 2011 ("the Act").
Section 4 of the Act, codified at Ala. Code 1975, § 16-24C-4,
provides how probationary teachers obtain tenure and how other
probationary employees obtain "nonprobationary status":
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"No action may be proposed or approved based
upon personal or political reasons on the part of
the employer, chief executive officer, or governing
board. A teacher shall attain tenure, and a
classified employee shall attain nonprobationary
status as follows:
"(1) ... [A] teacher ... shall attain
tenure upon the completion of three
complete, consecutive school years of
full-time employment as a teacher with the
same employer unless the governing board
approves and issues written notice of
termination to the teacher on or before the
last day of the teacher's third
consecutive, complete school year of
employment. ..."
Jackson contended on appeal in the Court of Civil
Appeals, and she contends in her certiorari petition to this
Court, that the broad language of § 16-24C-4 prohibiting the
consideration of "personal or political reasons" applies to
decisions regarding the termination of the employment of
probationary teachers. However, the Court of Civil Appeals
noted that different Code sections apply to the termination of
teachers' employment. Specifically, § 5 of the Act, now
codified at Ala. Code 1975, § 16-24C-5, governs the
termination of the employment of probationary teachers like
Jackson. That Code section states, in pertinent part:
"(c) Probationary teachers ... may be terminated
at the discretion of the employer upon the written
recommendation of the chief executive officer, a
majority vote of the governing board, and issuance
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of written notice of termination to the teacher on
or before the fifteenth day of June. ... Upon
issuance of such notice, the teacher may submit a
written statement to the chief executive officer and
the governing board explaining why such action
should not be taken. ...
"(d) The decision to terminate the employment of
any probationary employee shall be final ...."
(Emphasis added.)
The Court of Civil Appeals explained that the prohibition
in § 16-24C-4 on acting "based upon personal or political
reasons" refers to the granting of tenure, not the termination
of the employment of probationary teachers. In other words,
tenure is granted by mere passage of time, and it is not to be
granted based on personal or political reasons. Termination
of the employment of a probationary teacher, however, is
outside the scope of § 16-24C-4 and is instead within the
gambit of § 16-24C-5. The Court of Civil Appeals held:
"Looking to the plain language of the statute,
§ 16-24C-4(1) clearly states that a probationary
employee 'shall' attain tenured status 'upon the
completion of three complete, consecutive school
years of full-time employment as a teacher with the
same employer.' Thus, pursuant to the plain
language of the statute, tenured status is automatic
based upon the completion of working as a teacher
for a specific consecutive period and cannot be
attained based on 'political or personal reasons.'
Section 16-24C-4 is a general statute governing the
manner in which a probationary employee, depending
upon his or her classification, automatically
attains tenure. However, the Students First Act
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contains several other more specific statutes
detailing the procedure for termination of an
employee based upon his or her classification. It
is a well settled rule of statutory construction
that '[w]here statutes in pari materia are general
and specific, the more specific statute controls the
more general statute.' Crawford v. Springle, 631 So.
2d 880, 882 (Ala. 1993).
"In this case, it is undisputed that Jackson was
a probationary teacher at the time of her
termination because she was 'a teacher who ha[d] not
attained tenure.' [Ala. Code 1975,] § 16-24C-3(8).
As noted previously, § 16-24C-5 provides the
specific provision regarding the termination of a
probationary teacher, such as Jackson, prior to his
or her attainment of tenured status. Section 16-
24C-5(c) states that a probationary teacher 'may be
terminated at the discretion of the employer.'
Thus, this provision explicitly allows an employer
to terminate a probationary teacher at his
discretion prior to the employee's attaining tenured
status without any prohibition that the termination
not be based on political or personal reasons.
Additionally, § 16-24C-5(d) goes on to state that
any discretionary termination of a probationary
teacher 'shall be final.'"
Jackson, ___ So. 3d at ___.
Although § 16-24-4 does mention a written notice of
termination, it is not specifying the procedure for
terminating a probationary teacher's employment and barring
the consideration of "personal or political reasons" for the
termination of that employment; instead, it is generally
discussing how tenure is obtained and mentioning the role of
a written termination notice as part of that process. It is
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§ 16-24-5--a completely different Code section and section of
the Act--that discusses the termination of the employment of
probationary employees, and it contains no explicit
prohibition on the consideration of personal or political
reasons for that termination.
To remove any doubt that the prohibition on the
consideration of "personal or political reasons" was
apparently purposefully omitted from the process for
terminating the employment of probationary teachers under §
16-24C-5, the Court of Civil Appeals contrasts it with § 6 of
the Act, codified at Ala. Code 1975, § 16-24C-6, which
provides for the termination of the employment of tenured
teachers and nonprobationary employees:
"In contrast, § 16-24C-6 provides the procedure
for termination of a tenured teacher or
nonprobationary classified employee and states, in
pertinent part:
"'(a) Tenured teachers and
nonprobationary classified employees may be
terminated at any time because of a
justifiable decrease in the number of
positions or for incompetency,
insubordination, neglect of duty,
immorality, failure to perform duties in a
satisfactory manner, or other good and just
cause, subject to the rights and procedures
hereinafter provided. However, a vote or
decision to approve a recommended
termination on the part of ... the
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governing board shall not be made for
political or personal reasons.'
"(Emphasis added.) Moreover, § 16-24C-6 goes on to
provide detailed procedures for an appeal of a
tenured teacher's or nonprobationary classified
employee's termination. Thus, we must conclude that
if the legislature had wished to state that
probationary teachers could not be terminated for
political or personal reasons in the language of §
16-24C-5, it knew how to do so because it clearly
included that language in § 16-24C-6."
Jackson, ___ So. 3d at ___. The Court of Civil Appeals
concluded:
"Accordingly, looking to the Students First Act
as a whole, as we must do, because § 16-24C-5 is the
specific provision that provides an employer
authority to terminate a probationary employee at
its discretion prior to the employee's attainment of
tenure and because the more specific statute
controls the more general statute under the rules of
statutory construction, we conclude that § 16-24C-4
does not control Jackson's termination under the
Students First Act and, thus, that the trial court
did not err in dismissing Jackson's complaint. See
Ex parte McCormick, 932 So. 2d 124, 132 (Ala. 2005)
('In any case involving statutory construction, our
inquiry begins with the language of the statute, and
if the meaning of the statutory language is plain,
our analysis ends there.'). Therefore, we affirm
the trial court's judgment."
Jackson, So. 3d at .
In sum, § 16-24C-4 controls how tenure is obtained and
explicitly prohibits the consideration of personal or
political reasons in granting tenure; § 16-24-6 controls how
a tenured teacher's employment is terminated and explicitly
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prohibits the consideration of personal or political reasons
for such termination; and § 16-24C-5 controls how a
probationary teacher's employment is terminated but contains
no language discussing the consideration of personal or
political reasons for such termination. Thus, there is no
portion of the applicable section of the Act--§ 5, codified at
§ 16-24C-5--that the Court of Civil Appeals has failed to
apply or give effect.
Because Jackson's complaint was premised on § 16-24C-4,
which, as noted above, does not apply to the termination of a
probationary employee's employment, I see nothing indicating
any "probability of merit" in Jackson's argument that the
Court of Civil Appeals erred in affirming the trial court's
dismissal of her action. Rule 39(f), Ala. R. App. P. With no
probability of merit, there are no "special and important
reasons" to grant the petition. Rule 39(a), Ala. R. App. P.
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MOORE, Chief Justice (dissenting).
Monique Jackson claims that the Geneva County Board of
Education ("the Board") denied her tenure as a schoolteacher
because she had supported the previous principal, whom the
Board had ousted. She filed a complaint seeking reinstatement,
tenure, and backpay, citing a section of the Code that
prohibits teacher firings for "personal or political reasons."
§ 16-24C-4, Ala. Code 1975. The trial court dismissed the
case, and the Court of Civil Appeals affirmed that dismissal.
This case presents a question of first impression as to
whether a nontenured teacher can be fired for personal or
political reasons. Because I believe that the Court of Civil
Appeals erred in affirming the dismissal of Jackson's case, I
would grant the petition for a writ of certiorari to explicate
the meaning of § 16-24C-4.
Analysis
The relevant portion of § 16-24C-4 reads as follows:
"No action may be proposed or approved based
upon personal or political reasons on the part of
the employer, chief executive officer, or governing
board. A teacher shall attain tenure ... as follows:
"(1) ... [A] teacher ... shall attain
tenure upon the completion of three
complete, consecutive school years of
full-time employment as a teacher with the
same employer unless the governing board
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approves and issues written notice of
termination to the teacher on or before the
last day of the teacher's third
consecutive, complete school year of
employment. ..."
Because a teacher automatically attains tenure after three
years of full-time employment without any need for action by
the governing board, the opening clause prohibiting actions
"based upon personal or political reasons" would be
meaningless if § 16-24C-4 addressed only the time for
attaining tenure. Section 16-24C-4 also states, however, that
tenure is automatic "unless the governing board approves and
issues written notice of termination to the teacher on or
before the last day of the teacher's third consecutive,
complete school year of employment." The phrase "approves and
issues written notice of termination" parallels the preceding
statement that "[n]o action shall be proposed or approved
based upon personal or political reasons ...." Thus, the Board
is prohibited from approving a written notice of termination
"based upon personal or political reasons" for the purpose of
denying a teacher tenure prior to completion of "the teacher's
third consecutive, complete school year of employment."
The Court of Civil Appeals, treating § 16-24C-4 as
establishing merely the time period for the automatic
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attainment of tenure, did not consider that the "personal or
political reasons" prohibition could apply to the termination
clause of § 16-24C-4. The Court of Civil Appeals further held
that the Code section applicable to Jackson's termination was
§ 16-24C-5, which provides that a probationary teacher, i.e.,
one who has not attained tenure, "may be terminated at the
discretion of the employer." Because § 16-24C-5 does not
contain a "personal or political reasons" limitation on the
termination decision, the Court of Civil Appeals upheld the
trial court's dismissal of Jackson's case.
The Court of Civil Appeals erred in holding that the
"personal or political reasons" prohibition of § 16-24C-4 did
not apply to the Board's decision to terminate Jackson's
employment. "'There is a presumption that every word,
sentence, or provision was intended for some useful purpose,
has some force and effect, and that some effect is to be given
to each, and also that no superfluous words or provisions were
used.'" Sheffield v. State, 708 So. 2d 899, 909 (Ala. Crim.
App. 1997) (quoting 82 C.J.S. Statutes § 316 (1953)). Contrary
to the canon of construction that every provision in a statute
is "intended for some useful purpose," the Court of Civil
Appeals' interpretation of § 16-24C-4 rendered the opening
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clause superfluous and of no effect. "The court must give
effect to each part of the statute, if possible, without doing
violence to some other portion of the statute." Sheffield, 708
So. 2d at 909.
Interpreting "every word, sentence, or provision" of §
16-24C-4 to be fully operative gives effect to the statute as
written without doing any violence to § 16-24C-5, which
provides general direction for the termination of the
employment of probationary teachers in contrast to the
specific application of § 16-24C-4 to the decision to
terminate the employment of a teacher who is on the brink of
tenure. The prohibition against terminating the employment of
a teacher for "political or personal reasons" for the purpose
of denying that teacher tenure is a significant statutory
protection that the Court of Civil Appeals, in my view,
erroneously invalidated.
Conclusion
Because I believe that the Court of Civil Appeals erred
in nullifying the "political or personal reasons" language in
§ 16-24C-4, I would grant the petition for a writ of
certiorari to address this question of first impression.
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