Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Hartland-Lakeside J3 School District

 
Case No.: LEA-03-032

RULING ON MOTION TO DISMISS

The PARTIES appeared as follows:

[Student], (Student) by Attorney Patricia Engel
Schott, Bublitz & Engel, S.C.
16655 West Bluemound Road, Suite 330
Brookfield, WI 53005

Hartland-Lakeside J3 School District (the District), by

Attorney Jeffery A. Schmeckpeper
Kasdorf, Lewis & Swietlik
One Park Plaza, Suite 500
11270 West Park Place
Milwaukee, WI 53224
PROCEDURAL HISTORY

On August 29, 2003, the State of Wisconsin, Department of Public Instruction (DPI) received a request for a due process hearing under Wis. Stat. § Chapter 115, Subchapter V, and the Individuals With Disabilities Act (IDEA).

On September 8, 2003, a telephone prehearing conference was held. The case was set for hearing on September 29-30, 2003.

Subsequently, in connection with reaching a decision on the appropriate "stay-put" placement, a prehearing conference was scheduled for September 18, 2003. Prior to that prehearing, the parties jointly agreed that the hearing be adjourned because of an action filed by the Student in Federal Court (Doe v. W.D.P.I., et al, Case No. 03-CV-892, E.D. Wisconsin) The instant due process matter was set for a telephone conference call for January 9, 2001.

On December 12, 2003, the District filed a Motion to Dismiss the instant action, on the grounds that the issues in the request for due process hearing were moot. On December 12, 2003, the Student requested that the matter be put on for hearing. On December 19, 2003, the Student responded to the Motion to Dismiss. A Motion hearing was held on December 22, 2003.

STANDARDS FOR MOTIONS TO DISMISS AND
SUMMARY JUDGMENT METHODOLOGY

Motions to dismiss are appropriately treated as motions for summary judgment when evidentiary material is considered. See Wis. Stat. § 802.06(3); Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 287, 531 N.W.2d 357, 362 (Ct. App. 1995). The grant of summary judgment is appropriate when the evidentiary material shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Moulas v. PBC Productions, Inc., 213 Wis. 2d 406, 410, 570 N.W.2d 739 (Ct. App. 1997).

In reaching the decision on the Motion, the administrative law judge (ALJ) has applied the standard methodology described by the Wisconsin Supreme Court.

The first step of the standard methodology used by a trial court when faced with a motion for summary judgment requires the court to examine pleadings to determine whether a claim or relief has been stated and a material issue of fact presented; if a claim for relief has been stated, inquiry then shifts to the moving party's affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment.

If the moving party has made a prima facie case for summary judgment, the court must examine affidavits and other proof of the opposing party to determine whether there exists disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn sufficient to entitle the opposing party to trial. Voss v. City of Middleton, 470 N.W.2d 625, 162 Wis. 2d 737 (1991). (Accord: Trinity Ev. V. Tower Ins., 251 Wis. 2d 212, 214, 641 N.W.2d 504 (Wis. Ct. App. 2002)

PLEADINGS STATE A CLAIM FOR RELIEF

The August 29, 2003, letter requesting a due process hearing on behalf of the Student states a "claim for relief." The Student "requeste(ed) an order requiring (the) [Unnamed District] (School District) to uphold the IEP team's determination and allow (the Student) to attend [Unnamed #2 School] for the 2003/2004 school year." The hearing request asserted that [Unnamed District] was denying the Student a Free Appropriate Public Education ("FAPE") by moving the Student "from [Unnamed #2 School] to North Shore Middle School."

THE MOVING PARTY'S AFFIDAVITS ESTABLISH A PRIMA FACIE
CASE FOR SUMMARY JUDGMENT

The moving party's affidavits demonstrate the following facts. On September 18, 2003, the parties entered into an Interim Agreement for the 2003-2004 school year. The precise terms of the Interim Agreement are confidential (McCollister Affidavit; Ex. B). However, the Agreement does include provisions that provide the Student will remain at [Unnamed #2 School] for the entire 2003-2004 school year. (Id., at par. 5) From these facts, the District argues that the due process hearing is moot.

A case is moot when "a determination is sought which, when made, can not have any practical effect upon an existing controversy." City of Racine v. JT Enterprises, 64 Wis. 2d 691, 221 N.W.2d 869 (1974) The general rule is that a court should not decide abstract principles of law. Id.

The Wisconsin Supreme Court has further defined a "moot case" as follows:

A moot case has been defined as one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy.

Ziemann v. Village of Hudson, 102 Wis. 2d 705, 712, 307 N.W.2d 236 (1981)(quoting and citing Wisconsin E. R. Bd. V. Allis Chalmers W. Union, 252 Wis. 436, 440, 32 N.W.2d 190 (1948), quoted with approval in Fort Howard Paper Co. v. Fort Howard Corp., 273 Wis. 356, 360, 77 N.W.2d 733 (1956); State ex rel. Ellensburg v. Gagnon, 76 Wis. 2d 532, 535, 251 N.W.2d 773 (1976); and In Matter of K. H., 98 Wis. 2d 295, 300, 280 N.W.2d 786, 296 N.W.2d 746 (1980).

Wisconsin law allows for certain exceptions to mootness determinations. In Jones v. Gerhardstein, 148 Wis. 2d 710, 416 N.W.2d 883 (1987) the following exceptions were described:

The issues are of great public importance; the constitutionality of a statute is involved; the precise situation under consideration arises so frequently that a definitive decision is essential to guide the trial courts; the issue is likely to arise again and should be resolved by the court to avoid uncertainty; or, a question is capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within a time that would result in a practical effect upon the parties.

None of the stated exceptions apply to the instant administrative action. First, administrative decisions, unlike those of the appellate courts, have no precedential value. Second, no constitutional question exists, and the Division would lack authority to resolve it even if it did. Finally, the questions relating to student IEP's are too specific to lend much practical help to either school districts or students.

A similar standard relating to mootness is used by the Federal courts and is applied to matters arising under IDEA. In Board of Education v. Steven L., 89 F.3d 464 (7th Cir. 1996), the Seventh Circuit Court of Appeals held that a dispute regarding Steven L.'s education under IDEA became moot upon his graduation from high school since jurisdiction could only be exercised over "actual, ongoing cases or controversies." Id. citing U.S. Const. art. III, § 2 and Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990). The Court also explained that "[t]his requirement extends throughout the pendency of an action not just at the time a case is filed." Id. citing Lewis, 494 U.S. at 477-78 and Jordan By and Through Jones v. Indiana High School Athletic Ass'n, Inc., 16 F.3d 785, 787 (7th Cir. 1994). Moreover, the Court held that "it is limited to deciding actual controversies by a judgment that can be executed and not providing opinions upon moot questions or abstract propositions."

Based upon the affidavits of the District, the case is "moot" because the Interim Agreement grants the Student the relief specified in the pleadings, namely placement at [Unnamed #2 School] during the course of the 2003-2004 school year.

THE OPPOSING PARTY'S AFFIDAVITS
DO NOT ESTABLISH DISPUTED ISSUES OF FACT

The Student's affidavits assert that the Federal court action includes issues beyond whether the Student is provided with a FAPE. These include issues which are clearly outside the jurisdiction of the Division in the instant matter. First, claims under § 504 of the Rehabilitation Act of 1973, and the Americans With Disabilities Act. Second, issues relating to the DPI's "open enrollment" decision. All of these issues are clearly outside the jurisdiction of the Division in a due process proceeding. The Division and the Administrative Law Judge have limited jurisdiction, as set forth in § 115.80.

115.80 Due Process Hearings. (1) (a) 1. A parent, or the attorney representing the child, may file a written request with the division for a hearing within one year after the refusal or proposal of the local educational agency to initiate or change his or her child's evaluation, individualized education program, educational placement or the provision of a free appropriate public education, except that, if the local educational agency has not previously provided the parent or the attorney representing the child with notice of the right to request a hearing under this subdivision, he or she may file a request under this subdivision within one year after the local educational agency provides the notice.

The statute plainly does not confer jurisdiction over many of the issues raised in the Federal Court action. As a practical matter, Section 504 and ADA issues are handled by the Federal Office of Civil Rights at the Chicago Regional Office. These issues are not within the jurisdiction conferred by the due process hearing statute § 115.80. The State of Wisconsin DPI has set forth a detailed appeal procedure relating to Open Enrollment decisions (see: Bulletin 00-01, April 2000). This does not provide for any review in the due process hearing. (Id.)

The only other possible issue raised by the Student's affidavits seems to be that the Student must "exhaust administrative remedies" prior to proceeding in Federal court. However, the exhaustion requirement does not confer jurisdiction on the Division where the law clearly does not provide for it. With respect to due process issues, a determination of "mootness" does exhaust available administrative remedies.

The Student's affidavits do not establish any disputed issue over which the Division has jurisdiction. The affidavits do not establish a disputed issue of fact relating to the "child's evaluation, individualized education program, educational placement, or the provision of a free appropriate public education." These are the only issues for which the statute provides jurisdiction. (Wis. Stat. § 115.80) Accordingly, the Motion to Dismiss is granted.

WHEREFORE, the Motion to Dismiss of the Hartland-Lakeside J3 School District, is GRANTED, and the due process case is DISMISSED.

Dated at Madison, Wisconsin on December 22, 2003.

STATE OF WISCONSIN
DIVISION OF HEARINGS AND APPEALS
5005 University Avenue, Suite 201
Madison, Wisconsin 53705-5400
Telephone: (608) 266-7709
FAX: (608) 264-9885
By:_____________________________________
Jeffrey D. Boldt
Administrative Law Judge

NOTICE OF APPEAL RIGHTS

APPEAL TO COURT: Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under Wis. Stat. § 115.80(7) or to federal district court pursuant to U.S.C. § 1415 and 34 C.F.R. § 300.512.

To facilitate preparation of the record, when an appeal is filed with the court please send a copy of the appeal to the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705-5400.