In Tyler, the Supreme Court of Colorado held that substitute teachers were not entitled to tenure under the Colorado statute requiring a teacher to serve "continuously and without interruption for three full years."Summary of this case from Fairbanks N. Star School v. Nea-Alaska
Decided January 31, 1972.
Action by substitute teacher against school district for loss of salary and to compel district to grant her tenure and full employment at rate provided for teachers of her educational attainments. Complaint dismissed and teacher appealed.
1. CONSTITUTIONAL LAW — Decision — Unnecessary — Test — Question — Supreme Court — Negative. When it is not necessary for a decision to test the constitutional questions raised, the Supreme Court will not do so.
2. SCHOOLS AND SCHOOL DISTRICTS — Teacher Employment Dismissal and Tenure Act — Strict Construction. Teacher Employment, Dismissal and Tenure Act is in derogation of the common law and must be strictly construed in favor of those upon whom liability is imposed.
3. Teacher Employment Dismissal and Tenure Act — Repealed Act — Not Entitled to Tenure. Substitute teacher, who in 1964-1965 served 147 1/2 days in 33 schools, who in 1965-1966 served 121 days in 36 schools, and who in 1966-1967 served 118 days in 59 schools was not entitled — under either 1967 Teacher Employment, Dismissal and Tenure Act or under repealed act — to tenure as a teacher in school district because of her failure to serve continuously and without interruption for three full years.
Appeal from the District Court of the City and County of Denver, Honorable Merle R. Knous, Judge.
John W. Lentz, Samuel A. Anderson, for plaintiff-appellant.
Henry, Cockrell, Quinn Creighton, Richard C. Cockrell, Michael H. Jackson, Peter J. Wiebe, Jr., for defendant-appellee.
This appeal is from a judgment of the Denver district court dismissing a claim of plaintiff Ann E. Tyler to tenure as a teacher in the Denver School District. She had sought such classification by the Denver School Board by written demand in November of 1967. When her request was denied she filed suit for loss of salary and to compel the school district to grant her tenure and full employment at the rate provided for teachers of her educational attainments.
She grounded her claim on the passage of a new Teacher Employment, Dismissal, and Tenure Act, effective July 1, 1967, 1967 Perm. Supp., C.R.S. 1963, 123-18-1 et seq. She claims the statute entitled her to tenure by reason of her services during the three academic years prior to the effective date of the 1967 Act. Prior to the 1967 Act, the law provided expressly that a substitute teacher could not obtain tenure. C.R.S. 1963, 123-18-1 et seq.
Undisputed stipulated facts show that in 1964-1965 plaintiff served 147 1/2 days in 33 schools; that in 1965-1966 she served 121 days in 36 schools; and that in 1966-1967 she served 118 days in 59 schools. The court dismissed the suit on the ground that the Act was not retrospective in its operation and that any attempt to construe it as to give plaintiff new rights and impose obligations on the district which her past employment would not warrant under the repealed law would be unconstitutional. We affirm the trial court judgment, but on different grounds.
We need not reach the constitutional argument in this case. When it is not necessary for the decision to test the constitutional questions raised, we do not so do. Laizure v. Baker, 91 Colo. 292, 14 P.2d 486 (1932); Platte Land Co. v. Hubbard, 30 Colo. 40, 69 P. 514 (1902).
[2,3] The stipulated facts in this case are that plaintiff was a substitute teacher during the three years prior to the enactment of the 1967 statute. Regardless of whether we consider the Act which was repealed and under which she performed her three years of service or the 1967 Act, tenure under either required her to serve continuously and without interruption for three full years. "This act is derogation of the common law * * * Such legislation must be strictly construed in favor of those upon whom the liability is imposed." Marzec v. Fremont, 142 Colo. 83, 349 P.2d 699 (1960). Even the most liberal construction would not provide the continuity or the three full years employment as required.
The judgment is affirmed.