Opinion
No. 21124.
Decided April 12, 1965.
Action in the nature of mandamus by plaintiff, a physically handicapped minor, to compel defendants to furnish her special home tutoring and supplementary teaching services as provided in the statutes. From a dismissal of her complaint, the plaintiff brings error.
Reversed and Remanded.
1. PLEADING — Prayer of Complaint — Cause of Action — Relief — Remedy. Prayer of complaint is not statement of cause of action, and if allegations of complaint state a cause of action or show one entitled to relief it should be granted regardless of the remedy sought.
2. SCHOOLS AND SCHOOL DISTRICTS — Hearing — Evidence — Relief — State Board — Rule-Making Authority — Application. Evidence at hearing was clear and undisputed and showed that plaintiff was entitled to relief against State of Board of Education because it had used rule-making authority granted to it in the act to place road block in the process of considering child's application for home tutoring.
3. State of Colorado — Burden — Means of Education — Handicapped Children — Statute. Under C.R.S. '53, 123-22-1, the State of Colorado has committed itself "to provide the means of educating" those children who come under the definition of being handicapped and homebound.
4. Services — Local Board — Money — State — Statute. Under C.R.S. '53, 123-22-3, the services to be provided by the local board by reason of the money to be supplied by the state are clearly set forth.
5. State Board of Education — Program — Responsibility. Under C.R.S. '53, 123-22-4, State Board of Education is made responsible for administration of program pertaining to handicapped children; it is charged with duty to maintain sufficient personnel to supervise it, and is given authority to prescribe reasonable rules and regulations covering procedures to be followed by the school districts electing to establish the special education program.
6. Affirmative Duties — Applicant — State Board of Education — Statute. Under C.R.S. '53, 123-22-6, various affirmative things are to be done first by physically handicapped applicant seeking to benefit from special education program and then by State Board of Education.
7. Statute — Local School District — Final Decision — State Department of Education. Section of statute placing in local school district final decision cannot come into operation until application has been processed and approved by State Department of Education; it must first recommend the enrollment.
8. State Board of Education — Definition — State Accredited Personnel — Legislative Intent. State Board of Education cannot, by rule-making power granted to it in statute, construe the terms "state accredited personnel" in such narrow and restricted manner as to mean that only a physician qualified to practice medicine in Colorado fits such definition; legislative statement is quite broad and intended to cover all those persons who have been accredited by State laws to practice the healing arts in Colorado.
9. Board Rule — Other Healing Professions — State Accredited Personnel — Inconsistent With Statute — Sanction. Board rule which excludes other healing professions as not being covered by language "state accredited personnel" is contrary to and inconsistent with statute and beyond power of board to promulgate; it is not sanctioned.
Error to the District Court of the City and County of Denver, Hon. Mitchel B. Johns, Judge.
COLE and MALEY, for plaintiff in error.
DUKE W. DUNBAR, Attorney General, FRANK E. HICKEY, Deputy, JOHN W. PATTERSON, Assistant, for defendants in error.
THIS writ of error involves an interpretation of the statutes and rules and regulations of the State Board of Education relating to special educational programs for physically handicapped children (C.R.S. '53, 123-22-1, et seq.)
The parties are aligned here as they were in the trial court. We will refer to plaintiff in error as plaintiff and to the defendants in error collectively as defendant or by name.
Plaintiff's action in the nature of mandamus was brought under Rule 106, R.C.P. Colo. Plaintiff alleged that she is a physically handicapped child within the terms and conditions of C.R.S. '53, 123-22-2, and entitled to some of the home tutoring service as provided by C.R.S. '53, 123-22-3. She asserted that she was instructed by the Dean of Girls of Alameda Junior High School of Jefferson County, Colorado: that her application for the tutoring and supplementary teaching service should be accompanied by a letter from her doctor; that she attached to her application such a letter written by Alvin Stjernholm, D.C., a doctor of chiropractic, who was duly licensed to practice his profession in the State of Colorado. She avers that her application and accompanying documents, including the letter from Dr. Stjernholm, was forwarded to the State Board of Education; that her application was denied; that she was not recommended for such tutoring or services because of the rules and regulations of the State Board of Education and of the Colorado State Department of Education which provide that the recommendation for such services must be made by a "physician licensed to practice medicine in Colorado." It was not disputed that Dr. Stjernholm, being a chiropractor, is not qualified as a physician to practice medicine in Colorado.
In the prayer of her complaint plaintiff prayed that defendants be ordered to furnish her "special home tutoring and supplementary teaching services as provided in the statutes." The rule to show cause was issued to the State Board and a hearing was held. At the conclusion of the evidence, the defendants moved for dismissal of the complaint on the ground that the defendants were not the proper parties to the action. The motion was granted and judgment for dismissal was entered against plaintiff, to which she prosecutes this writ of error.
The reason for dismissal is contained in the following court order:
"1953 C.R.S., 123-22-5 through 123-22-15 clearly indicate that if the relief sought by the plaintiff in this court were ordered against the defendants, the defendants could not comply with such order. The defendant Colorado State Board of Education is merely an approving agency of the special programs for physically handicapped children which may be provided by C.R.S. 123-22-5. Section 123-22-6 provides that once a school district has been established, the Board of Education may approve the application of the student, and that after such approval such student may be recommended for enrollment. However, 123-22-7 is dispositive of the delineation of power as raised by this decision. If specifically provides, in part:
"'Final decision upon the enrollment of any physically handicapped or educable mentally handicapped child in a special education program shall rest with the board of education of the district * * *'
"Thus, construing the statutes in the light of the obvious intent of the legislature, it is apparent that the defendants are not proper parties to this action.
"There was some testimony here that the individuals who concern themselves with this matter might have varied the requirements of the statute. However, the same is not binding upon the (State) Board of Education."
We hold that the trial court was in error. The plaintiff stated a cause of action against defendants. The testimony of the Commissioner of Education for the State and of the Supervisor of Special Education, Jefferson County Schools, disclosed that the defendants were responsible for her application being denied.
The trial court reasoned thusly: The statute leaves to the district school board the "final decision" as to the enrollment of the child; the plaintiff sought relief to compel the State Board of Education to provide her home tutoring which is not within the State Board to order or grant; therefore the plaintiff is not entitled to the claim against the State Board because the relief sought was to compel that body to provide her with home tutoring.
This would be true if the test of the meritorious cause of action is to be found in the prayer. We have held, however, that the prayer of a complaint is not the statement of the cause of action, and if the allegations of the complaint state a cause of action or show one entitled to relief, it should be granted regardless of the remedy sought. Berryman v. Berryman, 115 Colo. 281, 172 P.2d 446; Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051; Weick v. Rickenbaugh Co., 134 Colo. 283, 303 P.2d 685.
The evidence at the hearing in response to the show cause order was clear and undisputed. Plaintiff was entitled to relief against the State Board because it had used the rule-making authority granted to it in the act to place a road block in the process of considering the child's application for home tutoring.
An examination of the statute involved, rather than an examination of the prayer of the complaint, will reveal the error committed by the court and the fallacy of its ruling.
[3-5] C.R.S. '53, 123-22-1, is a declaration of legislative purpose whereby the State has committed itself "to provide the means of educating" those children who come under the definition of being handicapped and homebound as set forth in the article. C.R.S. '53, 123-22-3 declares the services to be provided by the local board by reason of the money to be supplied by the state. In C.R.S. '53, 123-22-4 the State Board of Education is made responsible for administration of the program; it is required to maintain sufficient personnel to supervise it. It is significantly provided that the State Board of Education shall prescribe reasonable rules and regulations covering procedures to be followed by the school districts electing to establish the special education program.
Then follows C.R.S. '53, 123-22-6, which provides: "Application for enrollment. — When any such special education program shall have been established by any school district and shall have been determined by the department of education to be properly serviced, staffed and equipped, the parent or guardian, of any physically handicapped or educable mentally handicapped child residing in such district or districts, shall make application upon prescribed form for the enrollment of such child to the local superintendent of schools, where one is available, or to the county superintendent of schools. Such child shall thereupon undergo physical and psychological examination by state accredited personnel for the purpose of determining whether or not he is capable of receiving benefit from participation in such a special education program, and if determined eligible and capable of receiving the indicated benefits, and upon approval of application by the board of education, shall thereupon be recommended for enrollment."
Various affirmative things are to be done under section 6 above quoted first by the applicant and then by the State Board of Education. The plaintiff completed those things required of her under the statute and under the rules, but the affirmative action by the State board requiring that it gave its approval and make its recommendation was not done. The reason given was that her application did not conform to rule 2 c., Ch. II, 1962, Special Education Manual No. 1 on "Administrative Procedures For The Special Education Program." Therein is contained the provision that "A physician licensed to practice medicine in Colorado shall certify * * *" the required certificate. Absent the rule, the plaintiff's application could be processed.
Whether plaintiff eventually receives the home tutoring and special teaching services is not pertinent to the suit against the defendants. The section of the statute placing in the local school district the final decision cannot come into operation until the application has been processed and approved by the State Department of Education. It must first recommended the enrollment. Thus plaintiff did not get to the ultimate place where the Jefferson School authorities could pass on her application. The State Board should not be permitted to hide behind the skirts of section 7 because the State Board, through its rules has cut the pattern and sewn the garment.
The real inquiry presented to the court is the validity of the rule and regulation of the State Board declaring that only a physician, qualified to practice medicine in Colorado, fits the definition in the statute of "state accredited personnel."
[8, 9] The State Board of Education cannot by the rule-making power granted to it the statute construe the terms "state accredited personnel" in such a narrow and restrictive manner. The legislative statement is quite broad, and we believe was intentionally made so as to cover all of those persons who have been accredited by State laws to practice the healing arts in Colorado. Chiropractors are licensed and regulated by the State, 1960 Perm. Supp. C.R.S. section 23-2-1, et seq. (now C.R.S. 1963, 23-1-1 et seq.). Through similar statutes medical doctors and osteopathic physicians are accredited. Chiropractic is defined in 1960 Perm. Supp. C.R.S. section 23-2-2 (now C.R.S. 1963, 23-1-2) as among the healing arts, and it is stated in the statute that the authorized practice includes diagnosing, analyzing and treating human ailments. Chiropractors are subject to examination in the basic sciences in the same manner and to the same extent as are all others — medical doctors and osteopaths — in the healing arts (C.R.S. '53, 91-5-2). We do not sanction the board rule which excludes other healing professions as not being covered by the language "state accredited personnel." The rule is contrary to and inconsistent with the statute and beyond the power of the board to promulgate. State Board v. Champion, 141 Colo. 375, 348 P.2d 256.
The relief then to which the plaintiff is entitled, regardless of her prayer against the defendants, can be and should be granted by the judiciary. The relief she sought was to break the shackles which the State Board has wound around the effective administration of the act at the district level by reason of the rule here under attack.
The judgment is reversed and the cause is remanded with directions to the trial court to enter judgment declaring the State Board rule null and void and to enter an order to the State Board directing it to complete the processing of plaintiff's application.
MR. JUSTICE SUTTON, MR. JUSTICE McWILLIAMS and MR. JUSTICE SCHAUER dissent.