Kathy Brown v. Civil Service Commission, Department of Education and Territorial Board of Education, Real Parties in Interest-Appellant

818 F.2d 706 39 Ed. Law Rep. 550 Kathy BROWN, Petitioner-Appellee, v. CIVIL SERVICE COMMISSION, Respondent, Department of Education and Territorial Board of Education, Real Parties in Interest-Appellant. No. 84-2853. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 18, 1985. Decided June 3, 1987. David W. Dooley, Agana, Guam, for petitioner-appellee. Suzanne K. Horrigan, Richard G. Opper, of Agana, Guam, for real parties in interest-appellant. Appeal from the Appellate Division of the District Court of Guam. Before SKOPIL, FLETCHER and ALARCON, Circuit Judges. SKOPIL, Circuit Judge: 1 The Department of Education ("DOE") appeals the decision of the Appellate Division of the District Court of Guam reinstating appellee Kathy Brown as a teacher on Guam. We affirm. I. GUAM EDUCATIONAL SYSTEM 2 In structuring its educational system, the Guam legislature established DOE, 17 G.C.A. Sec. 3101 (1984), as a part of the executive branch. It also established a Board of Education ("Board"). 17 G.C.A. Sec. 3102(a). The Guam legislature has delegated its constitutional authority to establish a merit system to a number of agencies, including the Board. 4 G.C.A. Sec. 4105.…

The Department of Education (“DOE”) appeals the decision of the Appellate Division of the District Court of Guam reinstating appellee Kathy Brown as a teacher on Guam. We affirm.

I. GUAM EDUCATIONAL SYSTEM

In structuring its educational system, the Guam legislature established DOE, 17 G.C.A. § 3101 (1984), as a part of the executive branch. It also established a Board of Education (“Board”). 17 G.C.A. § 3102(a). The Guam legislature has delegated its constitutional authority to establish a merit system to a number of agencies, including the Board. 4 G.C.A. § 4105. The Board’s merit system must be approved by the Civil Service Commission (“Commission”) and executive order of the Governor. In 1973 the Board adopted rules and regulations regarding its personnel and the Governor approved those regulations in Executive Order 73-24. 1

The Commission was also established by the Guam legislature. 4 G.C.A. § 4401. It is responsible for, among other things, appeals from administrative action to suspend or dismiss DOE employees. 4 G.C.A. § 4403; 4102(b). In 1972 the Commission adopted rules and regulations regarding appeals from agency decisions. The Governor approved and promulgated…

Concurring:

I concur in the result. I write separately to express my concerns over the majority’s choice of standards of review. To review part of the district court’s (appellate division) rulings of law it applies a de novo standard, to part it applies a clearly erroneous standard. We are cited to no authority that has ever sought to untwine legal issues so that different standards of review could be applied to those rulings grounded in federal law and those grounded in state law.

Beyond this threshold disagreement with “standard-splitting” I disagree with the majority’s view that our court should apply a more deferential standard to its review of local law. It finds itself bound by Electrical Construction & Maintenance Co. v. Maeda Pacific Corp., 764 F.2d 619 (9th Cir.1985) and, indeed, it may be. However, Electrical Construction did not pay any attention to the statutory scheme that establishes the Guam courts, or the legislative history behind that statutory scheme. The statute, amended in 1984, provides Guam with both a federal district court and whatever local courts are established by *711 the Guam legislature. 48 U.S.C. § 1424 . Appeals from the district court are heard…