Opinion
No. 20915-2
December 23, 1996
MOTION OF APPELLANTS FOR REHEARING AND/OR TRANSFER TO THE COURT EN BANC OR FOR TRANSFER TO THE SUPREME COURT OF MISSOURI
Comes now defendants-appellants, and pursuant to Rule 84117 and 83.02, moves this court to set aside its Opinion in this case, filed December 6, 1996 authored by Judge Kenneth W. Shrum, concurred in by Judge Crow and Judge Montgomery. Appellants further request this Court to grant a rehearing of the appeal in division en banc or to grant a transfer of the appeal to the Supreme Court of Missouri. in support of their Motion for rehearing, appellants call attention to the following material matters of fact and law overlooked or misinterpreted by the Court of Appeals.
1. The Court miscontrued and misinterpreted the Teacher Tenure Act Section 168.104 so as to allow plaintiff to become tenured mid-contract during a school year in which there is no dispute that she was not tenured at the beginning of the year. This puts the Missouri school districts in the untenable position of having to give contracts for less than full school years to teachers who would complete five years service during the school year or to outright terminate a school teacher mid-contract during the school year in order to avoid having to give an automatic extension. The Court suggests that plaintiff could have been given notice not to renew her contract during the first month of the then current school year, however, under the court's own analysis, plaintiff would automatically become tenured if allowed to remain past the first month just by the passage of time during the school year. For this reason the Court has misinterpreted the legislature's intent.
2. In its opinion, the Court has seized on the point that the legislature eliminated the requirement that a non-tenured teacher be given notice not to renew "not before April first; ". The Court reasoned that this demonstrated legislative intent that a non-tenured teacher could become tenured mid contract. `An equally plausible explanation for this deletion is that the legislature simply intended to give school districts more time to make its decision not to renew. In fact, the legislature did nothing to change the requirement that notice be given merely before the fifteenth of April, demonstrating legislative intent that a non-tenured status may not be changed mid contract. R.S.Mo. 168.126.2 (1994). Defendnants request this court to rehear this appeal en banc.
3. This is a case of first impression in the state of Missouri which is of extreme importance to the school districts, teachers and citizens within the state. The interpretation of! a Missouri statute is at issue. Accordingly, in the alternative, this Appeal should be transferred to the Supreme Court of Missouri.
For each of the foregoing reasons, defendants/appellants request this Court to withdraw the opinion filed herein and to rehear this matter on the merits in division en banc or, in the alternative, to transfer this Appeal to the Supreme Court of Missouri.
Respectfully submitted,
EVANS DIXON
By: ________________________ Gerard T. Noce #27636 Thomas M. Buckley #38805 Attorneys for Defendants 515 Olive St. Suite 800 St. Louis, MO 63101 (314) 521-3434 (314) 621-3485 [Facsimile]
CERTIFICATE OF SERVICE
A copy of the foregoing mailed this 23rd day of December, 1996 to Mr. Kenneth C. McManaman, Attorney for Plaintiff, l736 North Kingshighway, Cape Girardeau, MO 53701.