ON APPEAL FROM THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF VERMILION.
Jimmy Roy Faircloth, Jr., Christie C. Wood, FAIRCLOTH MELTON, LLC; Hon. James D. Caldwell, Attorney General, Calvin Eugene Woodruff, Jr., LOUSIANA DEPARTMENT OF JUSTICE, For Appellant.
Brian Francis Blackwell, BLACKWELL & ASSOCIATES, For Appellee.
GUIDRY, Justice. Hughes, J., dissenting.
[2015-0432 La. 1] GUIDRY,
We are called upon to determine whether the lower court erred in declaring unconstitutional on its face Act 1 of the 2012 Legislative Session as codified in La. Rev. Stat. 17:443(B)(1) and (2). Upon de novo review, we find the court of appeal erred in declaring La. Rev. Stat. 17:443 as amended by Act 1 of 2012 unconstitutional on its face because it does not afford a full evidentiary hearing before a neutral adjudicator prior to termination. Instead, we find La. Rev. Stat. 17:443 as amended by Act 1 of 2012 provides sufficient due process to protect the tenured teacher's vested employment rights. This statute provides for one pre-termination opportunity to respond to the charges, and two post-termination hearings. At the first of these post-termination hearings, the teacher may present evidence to build his or her case before a tenure hearing panel, which then makes a recommendation to the superintendent; at the second, she may seek judicial review
of the superintendent's decision. If the judge determines the superintendent's decision to terminate or not reinstate the teacher's employment was arbitrary or capricious, the teacher shall be entitled to reinstatement and full back pay. Given [2015-0432 La. 2] these requirements before and after termination, we find Act 1 of 2012 on its face provided sufficient due process protections to the tenured teacher.
FACTS and PROCEDURAL HISTORY
According to her Petition for Declaratory and Injunctive Relief, filed in Case No. 98,078 in the 15th Judicial District Court on December 10, 2013, plaintiff, Ms. Kasha LaPointe, was employed at all relevant times as a tenured public school teacher by the defendant Vermilion Parish School Board (" VPSB or the Board" ). By letter dated August 16, 2013, issued from Mr. Jerome Puyau, the Superintendent of Schools for VPSB, Ms. LaPointe was advised that a " due process hearing" would be held on Tuesday, August 20, 2013, in his office to address charges of alleged " willful neglect of duty" and " dishonesty." According to the Petition for Declaratory and Injunctive Relief, this letter, also called the " charge letter" by the parties, advised Ms. LaPointe that she would be " afforded an opportunity to respond" to the allegations but that " [n]o witnesses [would] be heard...."
Because of the short interval of time, the " due process hearing" was postponed until Thursday, August 22, 2013, to allow Ms. LaPointe time to secure legal counsel. According to her petition and her memorandum, at the hearing on [2015-0432 La. 3] Thursday, August 22, 2013, Ms. LaPointe responded to the charges and denied the allegations contained in the August 16, 2013 " charge letter."
Exactly what transpired at this " due process hearing" is not directly ascertainable from the record as it is presently confected, because the record contains only brief excerpts of testimony from the hearing before the tenure panel and the transcript of the hearing on the Petition for Declaratory and Injunctive Relief, including testimony of Ms. LaPointe and the arguments of counsel referring to the record in the district court. However, Ms. LaPointe did appear with her counsel in the office of the superintendent and did present, with counsel's assistance, her explanations and responses to the allegations in the " charge letter." Additionally, counsel in argument before the district court referred to a written rebuttal that had been submitted to the superintendent by Ms. LaPointe through her counsel after the meeting with the superintendent. After Ms. LaPointe met with the superintendent and presented her response, the
superintendent took the matter under consideration before making his decision to terminate Ms. LaPointe's employment.
According to the petition, that decision was communicated to Ms. LaPointe in a letter dated September 9, 2013. This letter advised Ms. LaPointe that her employment with the VPSB was terminated " effective at the close of business today, September 9, 2013." The letter also advised Ms. LaPointe she had " seven (7) days from the receipt of this letter to apply for a Tenure Review Panel."
In a letter dated September 16, 2013, Ms. LaPointe through her counsel informed the superintendent she was challenging her termination on constitutional grounds as well as requesting a Tenure Hearing Panel. The Tenure Hearing Panel was convened on September 23, 2013, but it disbanded because the hearing panel [2015-0432 La. 4] determined that it required a hearing officer. On October 8, 2013, the Tenure Hearing Panel reconvened with a hearing officer, Wayne Landry, who indicated having thirty-six years of experience as an attorney with the school board and having served as a hearing officer in other settings, involving both government litigation and personnel matters. The panel itself consisted of three members: Ms. Lynda Guidry, designated by Ms. LaPointe, Ms. Christina Menard, designated by the principal, and Ms. Charlotte Waguespack, designated by the superintendent. Present at the October 8th hearing were the hearing officer, the panel members, Ms. LaPointe and her counsel, the superintendent, and the attorney for the VPSB. The hearing officer and the panel then proceeded to take evidence and hear testimony, all of which was preserved. Thereafter, the panel made its recommendation, voting 2-1 to concur with the superintendent's action to terminate Ms. LaPointe's employment. Ms. LaPointe's designee disagreed with the superintendent's action, and instead recommended suspension without pay for an agreed period of time, counseling, work ethics seminars, and return to a different school if she returned to work after the suspension.
By letter dated October 11, 2013, the superintendent advised Ms. LaPointe he was confirming her " termination that was effective on September 9, 2013," and further advised her that " [p]ursuant to Act 1 of 2012, [she had] sixty (60) days from this date to seek judicial review of [his] decision." Ms. LaPointe timely filed her Petition for Judicial Review Pursuant to LSA-R.S. 17:443(B)(2) on December 10, 2013, requesting judicial review of her termination. No judicial review of the termination itself has been conducted at this point, owing to the ongoing constitutional challenge.
[2015-0432 La. 5] As to the constitutional challenge, Ms. LaPointe requested a judicial declaration that Act 1 of 2012 Regular Session of the Louisiana Legislature is unconstitutional in its entirety and further declaring Act 1 to be null, void, and of no legal effect whatsoever. She alleged the hearing provisions of Act 1 deprived her of her vested property right to continued employment without due process of law as required by Amendment XIV of the United States Constitution and Article I, Section 2, and of the Louisiana Constitution of 1974. Because the constitutionality of Act 1 was challenged, the Attorney General later intervened as a defendant in the matter.
After a hearing in March of 2014, the trial court found Act 1 was both facially constitutional and constitutional as applied to the facts of this case and dismissed Ms. LaPointe's claims for declaratory and injunctive relief. The trial court reasoned that Act 1 provided for one ...