Rust v. Clark County School District

¶1dissenting:

¶2Respectfully I dissent.

¶3This appeal is focused on the 1979 dismissal of appellant Dayle K. Rust, a longtime Clark County School District employee and a principal of over twenty years satisfactory service. The School District dismissed Rust for insubordination. That insubordination consisted of visiting Rust’s son who was completing a two-year religious mission in Europe. Rust’s plans to visit his son were known to and approved by the School District. They were predicated upon a standard policy of the School District which allowed liberal use of earned leave days. Rust had first discussed his trip with the School District’s Associate Superintendent for Personnel eight months before his departure. Rust spent many evenings and numerous weekends making the necessary arrangements for the trip so that his school would run smoothly during his absence. The school did so.

¶4Sixteen days before Rust’s scheduled departure on October 3, 1979, the School District changed its leave policy. It limited administrators’ use of earned leave to no more than five school days per year, or two days in succession except in cases of an “emergency.” Rust had accumulated over forty days of leave. He had sought to use ten of those forty days on his trip to see his son. Rust’s request for leave was denied by his supervising administrator on September 25th. Rust indicated that he nevertheless intended to fulfill his commitment to his son by completing the trip as he had planned.

¶5On October 3rd Rust left for Europe. When he returned on October 18th he was served with a Notice of Suspension remov*692ing him immediately from his position as principal and as an administrator with the Clark County School District. After a hearing, the School District dismissed Rust from its employ. The district court affirmed the ruling of the School District. On appeal from the district court’s ruling, we held that the penalty imposed by the School District was excessive and we reversed and remanded the case with instructions to return the proceedings to the School District for the imposition of a new penalty consistent with the views expressed in our opinion. Rust v. Clark County School District, 100 Nev. 372, 683 P.2d 23 (1984). The School District reinstated Rust, reducing him, however, to an assistant principal commencing October 15, 1984. The School District also imposed on Rust a five-year suspension of Rust’s pay and benefits commencing October 18, 1979 through October 14, 1984, which was the period of time covering Rust’s initial appeal. Rust appealed that decision to the district court. The district court affirmed the ruling of the School District.

¶6THE JURISDICTION

¶7As a threshold issue, the School District has urged dismissal of Rust’s appeal for lack of jurisdiction on the grounds that the appeal is premature. My brethren have agreed ánd have denied Rust’s appeal on that ground. I disagree. I would consider the appeal on its merits and I would reverse the district court’s ruling in favor of the School District, and remand with instructions to enter a judgment in favor of Rust. The district court heard the case on January 11, 1985 and pronounced judgment in the School District’s favor on that date. At the time the district court pronounced and entered judgment on January 11th, the court stated that it would not file a written decision. Rust filed his Notice of Appeal on January 16, 1985. Later, the district court entered a written judgment on March 6, 1985. That Order of March 6th expressly reflected the district court’s earlier pronouncement and judgment of January 11, 1985.

¶8It is true that counsel for Rust should have filed a second Notice of Appeal after the district court filed its written judgment on March 6th, NRAP 3A(b)(l), because Rust’s Notice of Appeal filed on January 16th was technically premature.

¶9The federal courts under similar rules of procedure have treated this type of premature filing as a technical defect and not one affecting the substantial rights of the parties. See Hodge v. Hodge, 507 F.2d 87, 89 (3rd Cir. 1975); Ruby v. Secretary of United States Navy, 365 F.2d 385, 389 (9th Cir. 1966), cert. denied, 386 U.S. 1011 (1967).1

¶10*693As Judge Van Dusen said in Hodge:

Notice of appeal to the court of appeals was filed in the district court on March 11, 1974. Judge Hoffman’s written order was filed March 14, 1974. The appeal was thus premature. See Moore, Federal Practice, Para. 204.14 at 981-82 (2d ed. 1973). So long as the order is an appealable one and the nonappealing party is not prejudiced by the prematurity, however, the court of appeals should proceed to decide the case on the merits, rather than dismiss on the basis of such a technicality. Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Hamilton v. Stillwell Van and Storage Co., 343 F.2d 453 (3d Cir. 1965).

¶11In Foman v. Davis, 371 U.S 178, 181-182 (1962), Justice Goldberg, speaking for the U.S. Supreme Court,

It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48. The Rules themselves provide that they are to be construed “to secure the just, speedy, and inexpensive determination of every action.” Rule 1.

¶12Our own Nevada Rules of Appellate Procedure also provide:

(c) Construction of Rules. These rules shall be liberally construed to secure the proper and efficient administration of the business and affairs of the court and to promote and facilitate the administration of justice by the court.

¶13Rule 1.

¶14For these reasons I disagree with the majority in denying Rust’s appeal on the issue of jurisdiction. There has been no showing of prejudice to the School District by Rust’s premature filing of his Notice of Appeal. There is not a scintilla of prejudice present in the instant case resulting from the premature filing of Rust’s Notice of Appeal. The prematurity of the Notice of Appeal is a technical defect which does not affect the substantial rights of the parties. I would therefore give Rust his day in court. I would consider the case on its merits.

¶15THE SUSPENSION

¶16In our first Rustopinion, we instructed the School District to impose a penalty consistent with our decision. Rust, supra.In *694response, the School District imposed a suspension of all pay and benefits for that period of time during which Rust exercised his legal right to appeal the original decision of dismissal.

¶17Rust’s right to appeal is statutory. NRS 391.3194(4). The School District may not emasculate that right and penalize Rust for doing what he was lawfully entitled to do. Watson v. Housing Authority, 97 Nev. 240, 627 P.2d 405 (1981). The right to a judicial review is a substantial right. It is not a mere nominal or illusory right. I would not approve a result whereby a School District eifectually penalizes an appellant for prevailing upon an appeal. Nor would I hesitate to step in when the decision of a School District is arbitrary, oppressive and an abuse of discretion. State ex rel. Johns v. Gragson, 89 Nev. 478, 515 P.2d 65 (1973).

¶18The imposition of the five year suspension of Rust’s pay and benefits by the School District was both arbitrary and capricious, and an abuse of discretion. The only “wrong” Rust committed, after twenty years of faithful and dedicated service to the School District and to those whom he served, was to visit his son at the conclusion of his son’s missionary assignment.

¶19CONCLUSION

¶20I would reverse the judgment of the district court and remand, with instructions to return the case to the School District Board of Trustees so that Rust would receive reimbursement of all salary and benefits, including pension rights, due to him from October 18, 1979 through October 14, 1984 with interest thereon as provided in NRS 99.040; such sums should be offset by any actual income earned by Rust during this period. I would further include in our instructions that as Rust held the position of principal at the time of his suspension, his reimbursement should be predicated upon his salary level and benefits at that time.