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Ex parte Guin

Alabama Court of Civil Appeals

July 13, 2018

Ex Parte Tanya Guin
v.
Tanya Guin In re: Walker County Board of Education

          Walker Circuit Court, CV-17-900326

          PETITION FOR WRIT OF MANDAMUS

          PITTMAN, Judge.

         This mandamus petition arises from proceedings initiated by Tanya Guin seeking review of a decision of the Walker County Board of Education ("the Board") canceling Guin's employment as a contract principal under Alabama's Teacher Accountability Act ("the TAA"), Ala. Code 1975, § 16-24B-1 et seq. Because we conclude that the June 5, 2018, order of the Walker Circuit Court from which Guin has sought relief is a void order, we dismiss the petition without reaching the merits of Guin's arguments concerning the correctness of that order.

         As procedural background, we first summarize some of the pertinent provisions of the TAA that bear upon the case. The TAA, which was enacted in 2000, defines "contract principal" as including "those persons hired on or after July 1, 2000, and certified for the position of principal as prescribed by the State Board of Education and who are employed by an employing board as the chief administrator of a school." Ala. Code 1975, § 16-24B-2(2). Guin was hired by the Board pursuant to the TAA to serve as a contract principal at one of its schools; however, on June 1, 2017, the superintendent of the Walker County school system notified Guin by letter that he was recommending cancellation of her employment as a contract principal[1] for cause pursuant to Ala. Code 1975, § 16-24B-3(e)(1), which permits cancellation of a contract principal's employment contract for any of 10 enumerated reasons, including immorality, insubordination, neglect of duty, conviction of a felony or a crime involving moral turpitude, failure to fulfill the duties and responsibilities imposed upon principals by the Alabama Code, willful failure to comply with board of education policy, a justifiable decrease in the number of positions due to decreased enrollment or decreased funding, failure to maintain a necessary certificate in a current status, incompetency, or failure to perform duties in a satisfactory manner, as well as for "[o]ther good and just cause." Guin requested a hearing on the superintendent's recommendation, which the Board held in early August 2017; at the conclusion of that hearing, the Board, by a majority vote, agreed with the superintendent's recommendation to cancel Guin's employment as a contract principal for cause and rendered a written order on August 10, 2017, to that effect.

         The TAA provides that, in the event of a cancellation of a contract principal's contract for cause, the principal may file a written notice with the school board's chief executive officer requesting "a nonjury, expedited evidentiary hearing before the circuit court in the county in which the employing board sits"; in response to such a notice, the school board's chief executive officer, in turn, is to promptly notify the circuit court that "the employing board requests the nonjury, expedited evidentiary hearing," at which hearing "the employing board shall bear the burden to prove, by a preponderance of the evidence, that the cancellation is solely for cause." Ala. Code 1975, § 16-24B-3(e)(2)b. The TAA further provides:

"All contract principals shall be entitled to an expedited evidentiary hearing process, which shall occur within 45 days of the chief executive officer's or the contract principal's request, as the case may be, for an expedited hearing.... If the circuit court determines that it is not able to complete the expedited evidentiary hearing within the 45-day period, the court shall refer the parties to a mediator to conduct the expedited evidentiary hearing within 45 days of the chief executive officer's or the contract principal's request for the expedited hearing. The written decision of the mediator shall be binding on the parties."

Ala. Code 1975, § 16-24B-3(e)(3) (emphasis added).

         The term "mediator" is defined in the TAA as "[a] person who is experienced in the field of alternative dispute resolution, and/or a person who has completed a course of training in alternative dispute resolution, and/or has been recognized as an arbitrator by an entity regularly engaged in providing arbitration services." Ala. Code 1975, § 16-24B-2(6). In contrast to the TAA, which affords a mediator, upon referral by the circuit court, the power to render a binding written decision, a "mediator" in a typical civil action is tasked with presiding over "a process [as] a neutral third party assist[ing] the parties to a civil action in reaching their own settlement," but who "does not have the authority to force the parties to accept a binding decision." Ala. Code 1975, § 6-6-20(a); accord Rules 1(a) and 9, Ala. Civ. Ct. Med. R. In other words, the TAA envisions a "mediator" in the specific context of an expedited nonjury review as acting in lieu of the circuit judge in all respects, as will be discussed below in more detail.

         On August 24, 2017, Guin timely made a request under § 16-24B-3(e)(2)b. for a nonjury, expedited evidentiary hearing of the termination of her employment as a contract principal, and the Board initiated a civil action in the Walker Circuit Court (case no. CV-17-900326), requesting a nonjury expedited evidentiary hearing to address the propriety of its decision as to Guin. However, the cause was not tried within the 45-day period set forth in the TAA because, Guin alleges in her petition, all the sitting circuit judges recused themselves from hearing the action, resulting in an appointment by the Chief Justice of the Alabama Supreme Court of a visiting circuit judge to hear the case.

         In the circuit-court proceeding, one of Guin's attorneys issued 24 notices of intent to serve nonparty subpoenas duces tecum pursuant to Rule 45, Ala. R. Civ. P., upon a number of Walker County school associations, such as the "Carbon Hill Band Boosters," the "Curry Middle School PTO," the "Dora Wrestling Club," and the "Oakman Quarterback Club," seeking financial documents of those groups from 2011 to the present. The Board moved to quash the subpoenas and to issue an order prohibiting further subpoenas for records that the Board had not considered in its own hearing without a showing of good cause. On February 1, 2018, the circuit court granted the Board's motion to quash and ordered that no further subpoenas for records be issued without obtaining leave of court. Guin filed on February 6, 2018, a "motion to reconsider" that order; however, that motion was denied on March 21, 2018.

         Counsel for Guin subsequently filed subpoenas duces tecum and notices seeking to take the depositions upon video and/or oral examination of numerous witnesses, including the school superintendent, a member of the Board, the Board's executive secretary, and six other Board employees. The member of the Board and the Board's executive secretary named in two of the deposition notices moved to quash the deposition notices directed to them, and the superintendent moved to quash the deposition notices directed to him and the other Board employees. On March 8, 2018, the circuit court granted the superintendent's motion to quash but denied the motion to quash that had been filed by the Board member and the Board's executive secretary. However, on March 15, 2018, the circuit court granted a motion to reconsider the denial of the motion to quash that had been filed by the Board member and the Board's executive secretary and ordered that their notices of deposition would also be quashed. The circuit court denied reconsideration of the orders granting the motion to quash on March 21, 2018.

         On April 6, 2018, Guin filed a petition for the writ of mandamus in this court, seeking review of the circuit court's orders of February 1, 2018, March 8, 2018, and March 15, 2018, denying issuance of the requested subpoenas duces tecum and the taking of the requested depositions. That mandamus petition was assigned case no. 2170644. This court called for responses to the petition, and two responses were filed: one by the Board as a body and one by the Board member and the Board's executive secretary whose motion to quash was ultimately granted on March 15, 2018. Among the arguments asserted by the Board in its response was that the mandamus petition was untimely under Rule 21(a)(3), Ala. R. App. P. That rule provides that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal." Although Rule 4(a), Ala. R. App. P., generally provides for timely appellate review within 42 days from the entry of an appealable judgment or order, in this case the pertinent "time for taking an appeal" under the TAA from a final judgment in a proceeding involving cancellation of a principal's contract of employment is set forth in § 16-24B-5(a), Ala. Code 1975:

"All appeals of a final decision from the expedited evidentiary hearing shall lie with the Alabama Court of Civil Appeals. An appeal shall be filed within 14 days after the receipt of the final written decision of the circuit judge or the mediator. An appeal by either party shall be perfected by filing a written notice of appeal with the clerk of the Court of Civil Appeals within 14 days after the receipt of the final written decision of the circuit judge or the mediator by the party. Failure to file a timely notice of appeal shall render the decision of the circuit judge or the mediator final."

         (Emphasis added.) That 14-day period is the same as that provided in Alabama law for appeals from final judgments of juvenile courts. See Rule 4(a)(1)(E), Ala. R. App. P.

         In Ex parte A.J., [Ms. 2170217, Jan. 12, 2018]___So. 3d___(Ala. Civ. App. 2018), this court considered the timeliness of a petition for a writ of mandamus filed by a mother of a child involved in an ongoing paternity and child-support action in a juvenile court. That petition asserted a nonjurisdictional challenge -- failure to join an indispensable party -- to interlocutory orders entered by the juvenile court on June 1, 2017, August 29, 2017, and October 17, 2017, addressing genetic testing, visitation, and paternity; the petition was filed on November 28, 2017, 14 days ...


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