STATE OF MINNESOTA COUNTY OF WASHINGTON

DISTRICT COURT

TENTH JUDICIAL DISTRICT

Melissa Douglas, Petitioner, vs. Stillwater Area Public Schools, Independent School District 834, George Hoeppner, Kathy Buchholz, Amy Burback, Tom Lehmann, Paula O’Loughlin, Shelly Pearson, Mike Ptacek, each in his or her official capacity as a Stillwater Area Public Schools Board member, Respondents.

Case Type: Civil/Other

Court File No. _______________

VERIFIED PETITION FOR A PEREMPTORY WRIT OF

MANDAMUS

TABLE OF CONTENTS INTRODUCTION ............................................................................................................................ 3

PURPOSE OF THE PETITION .................................................................................................... 4

JURISDICTION ................................................................................................................................. 5

FACTUAL BACKGROUND .......................................................................................................... 8

ARGUMENT AND AUTHORITIES .......................................................................................... 15

I. Since the School District has committed a public wrong by failing to adhere to a statutory duty to bring the issue of a change purpose of obligation proceeds to the electors for approval, a writ may be issued. ........................ 15

II. The interpretation of Minnesota Statute § 475.58 is unambiguous, requiring the School District to provide Stillwater electors the opportunity to change or expand the purpose for which the proceeds of approved obligations were originally designated by ballot. ........................................ 16

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III. The School District cannot materially deviate from the original purpose of using the obligations issued after the approval of the voters. .................................... 20

Closing of three existing elementary schools is a monumental shift from the original purpose of improving schools for the health and safety of children. ............................................................................................................ 20

IV. The School District created a social contract with the voters and a trust for the voters through its own processes and procedures regarding the bond referendum and the purpose of the obligation proceeds. ..................................... 25

CONCLUSION ................................................................................................................................ 28

RELIEF REQUESTED .................................................................................................................. 30

VERIFICATION OF PETITION ................................................................................................ 31

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INTRODUCTION

Stillwater Area Public Schools, after obtaining voter approval for school building

bonds not to exceed $97.5 million, now seeks to materially change the original purpose for

the obligation proceeds. By doing so, the School District is violating not only statutory law,

but the social contract made between it and the parents to obtain passage of the bond

obligations. Instead of making improvements to existing schools, it now plans to close three

elementary schools. This sea-change in purpose, not otherwise contemplated as discretionary for

the District Board, was not disclosed as a course of action at the time of the bond election

vote.

Further, not only were the public notices, namely the Minnesota Department of

Education’s Review and Comment adopted by the School Board through resolution, by its

action, the Board directly tied it to the ballot question purposefully restricting its discretion

to shift bond proceeds to close schools.

Regardless, the ballot question was explicit as to its purpose to use obligation

proceeds, in part, to make:

“other improvements to existing elementary school sites and facilities.”1

However, in a monumental shift in the original purpose of the obligations, the School

District seeks to close three elementary schools.

But, Minnesota Statute § 475.58, subd. 4, commands the School District to obtain the

approval of a majority of the electors through another election to allow for a change or to

expand the original purpose of the obligations. Thus, under the circumstances of this case,

1 Sch. Dist. No. 834 Bond Issue Question (May 12, 2015) App. 1 (emphasis added).

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the School District may not close the elementary schools but must improve them as promised

unless and until the School District voters proclaim otherwise -- at a public election called

for that purpose. Therefore, a writ of mandamus must be issued to require the School

District to place the matter before the voters to allow the bond proceeds to be used for a

changed purpose or, put another way, for an expansion of the original purpose of the

obligations.2

PURPOSE OF THE PETITION

The instant petition seeks the Washington County District Court to issue a writ of

mandamus upon the Respondent Stillwater Area Schools District:

To declare that the proceeds of the bond obligations issued after the approval of the electors, as did occur on May 12, 2015, be spent only for the purposes stated in the ballot language including improving the three elementary schools in question the school district has identified to close;

or in the alternative,

Require the School District to put forth before the electors of the Stillwater Area Public Schools for approval to allow the bond obligations agreed to in the election held on May 12, 2015 the question of whether the obligations may be spent for a different purpose or for an expansion of the original purpose of the bond question.

2 This does not interfere with the purchase of the bonds. Nor does it interfere with any other proposed and approved use of the obligations but for the limitations of the Board imposed by its own ballot question resolution.

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JURISDICTION

1. Jurisdiction of the district court over this Petition for a writ of mandamus is

conferred under Article VI, § 3 of the Minnesota Constitution, Minnesota Statute §§ 586.11

and 586.01 and all other applicable authorities.

2. Petitioner Melissa Douglas is a resident of Washington County and the

Stillwater Area Public Schools District, Independent School District 834. She is a voter and

did vote in the May 12, 2015 special election and is familiar with the facts of the election

prior to the bond question election at issue and after the election. She voted for the bond

ballot question. She was familiar with the publications of the School District including the

Long-Range Facilities Plan, the Minnesota Department of Education’s Review and

Comment, the School Board’s resolution regarding the special election, the published

description of the proposed construction project, the specific funding to each project

including the improvements identified for each existing elementary school for the health and

safety of the children, and attended at least one public presentation of the 50 or more

provided by the School District regarding the benefits of the obligations. Douglas also

knows that at no time prior to the passage of the May 2015 bond question did the School

Board or School District disclose or contemplate the closing of any existing elementary

school. As taxpayer, mother, parent, career professional, and supporter of public education,

Douglas has a keen interest in District policies as they affect the health, safety and welfare of

children.

3. Respondent Stillwater Area Public Schools District, Independent School

District 834, is defined as a “municipality” under Minnesota Statute § 475.51, subd. 2. As a

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school district, it is responsible for adhering to state laws governing the issuance of bond

obligations and to provide electors with full and fair disclosure of purposes related to bond

proceeds and to spend the proceeds stated in the ballot question or to seek the approval of

electors to spend the proceeds for a different purpose or to expand the original purpose.

4. Respondent George Hoeppner, is a member of the School Board for the

Stillwater Area Public Schools District, Independent School District 834. As a member of

the School Board, he is responsible for voting for or against policies related to the operation

and conduct of the Stillwater Public Schools. In addition, as a member of the Board, he also

has the authority to place matters before the electors in general or special elections such as

ballot questions for school building bonds. As a member of the Board, he too, along with his

colleagues on the Board, may direct the actions of the Superintendent of the Stillwater Area

Public Schools when and if necessary.

5. Respondent Kathy Buchholz, is a member of the School Board for the

Stillwater Area Public Schools District, Independent School District 834. As a member of

the School Board, she is responsible for voting for or against policies related to the

operation and conduct of the Stillwater Public Schools. In addition, as a member of the

Board, she also has the authority to place matters before the electors in general or special

elections such as ballot questions for school building bonds. As a member of the Board, she

too, along with his colleagues on the Board, may direct the actions of the Superintendent of

the Stillwater Area Public Schools when and if necessary.

6. Respondent Amy Burback, is a member of the School Board for the Stillwater

Area Public Schools District, Independent School District 834. As a member of the School

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Board, she is responsible for voting for or against policies related to the operation and

conduct of the Stillwater Public Schools. In addition, as a member of the Board, she also has

the authority to place matters before the electors in general or special elections such as ballot

questions for school building bonds. As a member of the Board, she too, along with his

colleagues on the Board, may direct the actions of the Superintendent of the Stillwater Area

Public Schools when and if necessary.

7. Respondent Tom Lehmann, is a member of the School Board for the

Stillwater Area Public Schools District, Independent School District 834. As a member of

the School Board, he is responsible for voting for or against policies related to the operation

and conduct of the Stillwater Public Schools. In addition, as a member of the Board, he also

has the authority to place matters before the electors in general or special elections such as

ballot questions for school building bonds. As a member of the Board, he too, along with his

colleagues on the Board, may direct the actions of the Superintendent of the Stillwater Area

Public Schools when and if necessary.

8. Respondent Paula O’Loughlin, is a member of the School Board for the

Stillwater Area Public Schools District, Independent School District 834. As a member of

the School Board, she is responsible for voting for or against policies related to the

operation and conduct of the Stillwater Public Schools. In addition, as a member of the

Board, she also has the authority to place matters before the electors in general or special

elections such as ballot questions for school building bonds. As a member of the Board, she

too, along with his colleagues on the Board, may direct the actions of the Superintendent of

the Stillwater Area Public Schools when and if necessary.

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9. Respondent Shelley Pearson, is a member of the School Board for the

Stillwater Area Public Schools District, Independent School District 834. As a member of

the School Board, she is responsible for voting for or against policies related to the

operation and conduct of the Stillwater Public Schools. In addition, as a member of the

Board, she also has the authority to place matters before the electors in general or special

elections such as ballot questions for school building bonds. As a member of the Board, she

too, along with his colleagues on the Board, may direct the actions of the Superintendent of

the Stillwater Area Public Schools when and if necessary.

10. Respondent Mike Ptacek, is a member of the School Board for the Stillwater

Area Public Schools District, Independent School District 834. As a member of the School

Board, he is responsible for voting for or against policies related to the operation and

conduct of the Stillwater Public Schools. In addition, as a member of the Board, he also has

the authority to place matters before the electors in general or special elections such as ballot

questions for school building bonds. As a member of the Board, he too, along with his

colleagues on the Board, may direct the actions of the Superintendent of the Stillwater Area

Public Schools when and if necessary.

FACTUAL BACKGROUND

11. Elementary school children parents accepted a property tax increase for $42

million to increase the size of a high school, and over $27 million for sport facility

improvements, in exchange for health and safety improvements to all elementary schools for

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the protection of the health and safety of their children.3 The documents the School District

communicated, submitted and presented to the electors incorporated these specific purposes

for the bond moneys. The School District resolution passed on February 19, 2015

incorporated

Language of the bond question related to improvements of existing elementary schools ― “various other improvements to existing elementary school sites and facilities;”4

That the special election on the bond question was “contingent upon the receipt of a positive Review and Comment from the Commissioner of Education on the projects included in that question;”5

The Minnesota Department of Education’s Commissioner of Education did provide a positive review and comment;6

The MDE provided the School District a description of the proposed school construction project,7 derived from documents the School District provided to the MDE and parents and electors regarding specific projects and specific costs, naming specific schools and facilities to receive improvements;8

The School District adopted the MDE’s review and comment description of specific schools, costs, and improvements by resolution9 and by publication;

3 See e.g. Affidavits of Melissa Douglas (Feb. 29, 2016); App. 227; H. Zis Weisberg (Feb. 26, 2016); App. 229; Tim Schilling (Feb. 23, 2016); App. 231. 4 Resol. Re. Issuance of Sch. Blding Bonds ¶1 (Feb. 19, 2015); App. 161 (emphasis added). 5 Id. ¶ 2, App. 2 (emphasis added). 6 Ltr, MDE to Stillwater Sch. Dist. with attachments (Mar. 18, 2015); App. 199 -201. 7 Descrip. Of Prop. Sch. Constr. Proj., App. 201. 8 Sch. Dist. 834 Prop. For Rev. and Com. (Feb. 6, 2015), App. 4 (App. D) App. 103-107. 9 Resol. Re. Issuance of Sch. Blding Bonds ¶2 “The actions of the administration in consulting with the Minnesota Department of Education, causing a proposal to be prepared for submission on behalf of the board … and taking such actions as necessary … are hereby ratified and approved in all respects…. The clerk is … directed to cause the Commissioner’s Review and Comment to be published ….”App. 162.

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Parents and electors relied on the description of specific schools, costs, and improvements as accepted by the School District and by publication.10

12. The bond question’s explicit language reflected the expectations of the

electors for the purpose of the issuance of the general obligation school building bonds for

“various other improvement to existing elementary school sites and facilities.”11

13. Further, there is no dispute as to what elementary schools existed ― nine ― and

identified for improvements at their sites and facilities as found in the School District’s

accepted Long Range Facilities Report and adopted resolution and its incorporation of the

MDE’s Review and Comment as published:

The Stillwater Independent District 834 is proposing a bond referendum on May 12, 2015 to finance a large high school addition and site improvements, a new 500 student elementary school and other facility and site improvements district wide. … Other proposed projects include: … the construction of a new transportation facility and playground / athletic field upgrades.

The projects would be scheduled for completion in 2016-2017 calendar years. Cost estimates by project type/location are as follows:

Afton-Lakeland Elementary School HVAC Upgrades $1,100,000 Playground Improvements $101,000 Renovations $25,000 Fees / FF&E / Contingency $438,172 $1,664,172

Anderson Elementary Playground Improvements $101,000 Renovations $25,000 Fees / FF&E / Contingency $45,019 $171,019

10 Affs of Douglas, Weisberg, and Schilling; App. 227-232. 11 Sch. Dist. No. 834 Bond Issue, App. 1.

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Lake Elmo Elementary

Playground Improvements $101,000 HVAC Upgrades $1,350,00[0] Renovations $1,150,000 Fees / FF&E / Contingency $930,597 $3,531,597

Lilly Lake Elementary HVAC Upgrades $1,350,000 Playground Improvements $101,000 Renovations $25,000 Fees / FF&E / Contingency $527,522 $2,003,522

Marine Elementary Playground Improvements $101,000 Renovations $25,000 Fees / FF&E / Contingency $45,019 $171,019

Oak Park Elementary HVAC Upgrades $1,100,000 Playground Improvements $101,000 Renovations $25,000 Fees / FF&E / Contingency $438,042 $1,664,042

Rutherford Elementary Playground Improvements $101,000 Fees / FF&E / Contingency $36,086 $137,086

Stonebridge Elementary Playground Improvements $101,000 Renovations $25,000 Fees / FF&E / Contingency $45,019 $171,019

Withrow Elementary Playground Improvements $101,000 Renovations $25,000 Fees / FF&E / Contingency $45,019 $171,019

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[T]he proposed projects are in the best interest of the district.12 14. The Stillwater Area Public Schools approved a district-wide long range

facilities plan.13 In that plan, the School District outlined laudable general needs of the

children regarding “acceptable and equitable learning environments,” high on the list was the

desire to “upgrade playground fall zones at each elementary school.”14

15. Nowhere in the Long-Range Facilities Report did it mention any school facility

closings.15

16. Notably, the Long-Range Facilities Report emphasized the health and safety

aspects of the school environment, particularly for the existing nine elementary schools as a

means to provide ”acceptable and equitable learning environments:”16

Upgrade playground fall zones at each elementary school Parent organizations at our elementary schools have worked hard over the years to partner with the district to provide playground equipment for our students. The committee recommends the district continues to partner with elementary parent organizations to further enhance the safety of playgrounds by installing fall-safe synthetic surfaces in place of woodchips. The synthetic surfaces, which are typically made of rubber and other shock-absorbing materials, help protect children as they play. Fall-safe synthetic zones also create easier access for students of all abilities and do not have to be replaced on an annual basis. Currently the Early Childhood Family Center is the only playground with this surface in the district.17

12 Pub. Descrip. of Prop. Sch. Constr. Proj. (Apr. 2015), App. 2-3. 13 Long-Range Facilities Planning Com. Final Rep. to the Bd. of Ed., App. 20 -108. 14 Id. at 8, App. 32. 15 Id. App. 20 -108. 16 Id. 17 Id. at 9, App. 33.

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17. The playground upgrades are consistent with the Long-Range Facilities

Report’s findings that “the way schools are designed can affect such important factors such

as student safety,… Acceptable environments can increase productivity, improve health and

reduce off-task behaviors of students.”18

18. Notably, the Report identified inequities in learning environments: “From

heating and cooling systems to playgrounds and science spaces, inequities exist between our

buildings. These disparities result in vastly different experiences for students based on where

they go to school.”19 The solution; provide acceptable and equitable learning environment at

every existing elementary school, including but not limited to an upgrade to the playground

fall zones.20

19. Prior to the bond question election, schools promoted the benefits of

proposed bond measure for their respective schools:

“Bond would bring change to Marine” ― “At our school, it would mean upgrading the playground surfaces with safer, more modern product and opening up one of our classrooms….21

“Bond would bring change to Oak Park” ― “[W]hat a successful bond would mean for your family? …Specifically, our school would see the following improvements:

Reconfigure to a preK-5 elementary school

Add air conditioning

Renovate classrooms…

Install accessible playground surfaces”22

18 Id. at 1, App. 25. 19 Id. at 2, App. 26. 20 Id. at 8, App. 32. 21 “Bond would bring change to Marine” publ. (Mar. 18, 2015), App. 193. 22 “Bond would bring change to Oak Park” publ. (Mar. 18, 2015), App. 195.

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“Bond would bring change to Withrow” “[W]hat a successful bond would mean for your family? …Specifically, our school would see the following improvements:

Reconfigure to a preK-5 elementary school

Add air conditioning

Renovate classrooms…

Install accessible playground surfaces”23 20. Suddenly, the School District announced school building closings.24

21. Three of the nine existing elementary schools identified for closure included

o Marine Elementary, o Oak Park Elementary, and o Withrow Elementary.25

22. The School District appears to have misled parents26 and has deviated from

the original purpose of the bonds slated for the “betterment of school facilities.”

23. Nowhere in the bond question voted upon in May 2015 did it state the

purpose for the bond proceeds was to close schools.27

24. Nowhere in the bond question voted upon in May 2015 did it provide for the

School District Board discretion to use the bond proceeds to close schools.28

25. Nowhere in the bond question voted upon in May 2015 did it provide for the

School District Board to use the bond proceeds for a purpose other than to make

improvements to the nine existing elementary schools.

23 “Bond would bring change to Withrow” publ. (Mar. 18, 2015), App. 197. 24 See e.g. Not. of Hearings Re: Closing of Marine, Oak Park, and Withrow (Jan. 8, 2016), App. 205; 224. 25 Not. of Hring of Closing Marine, Oak Park, and Withrow (Jan. 8, 2016), App. 205-206. 26 Affs. of Douglas, Weisberg, and Schilling; App. 227-232. 27 Sch. Dist. No. 834 Bond Issue, App. 1. 28 Id.

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26. Nowhere has the School District made provisions to provide the voters to

approve by a majority vote on the question of changing or expanding the purpose of the

bond obligations for a purpose different from that stated in the bond question.

27. The closing of three elementary schools is a material departure from the

specific purpose of the original bond question.

28. Had voters known about the intent of the School District to close three

elementary schools, voters would have not voted for the measure.29

ARGUMENT AND AUTHORITIES

I. Since the School District has committed a public wrong by failing to adhere to a statutory duty to bring the issue of a change purpose of obligation proceeds to the electors for approval, a writ may be issued.

29. A writ of mandamus may be issued to compel the performance of a duty

required by law.30 A peremptory writ may be issued “[w]hen the right to require the

performance of the act is clear, and it is apparent that no valid excuse for nonperformance

can be given.”31

30. “A petitioner must demonstrate: (1) the failure of an official duty clearly

imposed by law; (2) a public wrong specifically injurious to petitioner; and (3) no other

adequate specific legal remedy.”32

31. The School District33 violated statutory law governing the proper use of bond

proceeds and, hence, must now take one of two paths: either again seek the “approval by a

29 Affs. of Douglas, Weisberg, and Schilling; App. 227-232. 30 Minn. Stat. § 586.01. 31 Minn. Stat. § 586.04. 32 Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn. App. 1995) (citations omitted).

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majority of the electors voting on the question of changing or expanding the purpose of the

obligations.”34 Or in the alternative, the School District must keep the elementary schools

open and must improve the schools as promised to the parents and to all voters of the

School District. It cannot do both.

32. Since the School District seeks to close three elementary schools which were

not within its discretion under the May 2015 bond question, it has materially changed the

purpose of the bond measure. Thus, it must go back to the voters if the District wishes to

change or expand the original purpose of the obligations as it has recently informed the

public. At this stage, the Petitioner has no choice but to seek the writ of mandamus as a

necessity to bring the matter back to the voters to decide the issue.

II. The interpretation of Minnesota Statute § 475.58 is unambiguous, requiring the School District to provide Stillwater electors the opportunity to change or expand the purpose for which the proceeds of approved obligations were originally designated by ballot.

33. The language of Minnesota Statute § 475.58, subd. 4, provides the

unambiguous purpose of the legislature regarding the use of bond obligation proceeds once

approved by the voters: to avoid misdirection or misrepresentations to the electors as to why

― that is, for what purpose ― the electors have voted for the school building bonds in the

first instance:

The proceeds of obligations issued after approval of the electors under this section may only be spent: (1) for the purposes stated in the ballot language….. The proceeds may not be spent for a different purpose or for an expansion of the original purpose

33 References to “School District” is inclusive of all Respondents unless otherwise specifically noted. 34 Minn. Stat. § 475.58, subd. 4.

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without the approval by a majority of the electors voting on the question of changing or expanding the purpose of the obligations.35

34. The object of statutory interpretation “is to ascertain and effectuate the

intention of the legislature.”36 When interpreting a law, Minnesota courts will “first assess[ ]

whether the [ordinance's] language, on its face, is clear or ambiguous.”37 The court will

“construe words and phrases according to their plain and ordinary meaning.”38 A law is read

as a whole, and each section is interpreted “in light of the surrounding sections to avoid

conflicting interpretations.”39 Whenever possible, “[e]very law shall be construed ... to give

effect to all its provisions.”40

35. When interpreting a statute, a court must first determine whether the statute's

language, on its face, is ambiguous.41 “A statute is only ambiguous when the language therein

is subject to more than one reasonable interpretation.” Id. Words and phrases are to be

construed according to their plain and ordinary meaning.42 Where the legislature's intent is

clearly discernible from plain and unambiguous language, statutory construction is neither

necessary nor permitted and courts apply the statute's plain meaning.43

35 Minn. Stat. § 475.58, subd. 4. 36 Minn. Stat. § 645.16 (2010). 37 In re Khan, 804 N.W.2d at 142 quoting Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 434 (Minn. 2009) (quotation omitted). 38 Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000). 39 Id. 40 Minn. Stat. § 645.16 41 See Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). 42 Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980. 43 Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995); Minn. Stat. § 645.16 (2000).

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36. Likewise, a statute must be construed in accordance with the statutory

definition of the included term.44 Where the legislature has defined a term, the court “may

not look at the term’s common or trade usage to determine its meaning within the statute.”45

37. Legislatures have the power to define terms used in statutes. Those definition

clauses are binding on the courts.46 Those statutory definitions of words furnish official and

authoritative evidence of legislative intent and meaning; and, therefore, they should be given

controlling effect47 as our courts have recognized: “statutory definitions of words used

elsewhere in the statute furnish authoritative evidence of the legislature's intent and

meaning.”48 Thus, “[s]uch internal legislative construction is of the highest value and prevails

over executive or administrative construction and other extrinsic aids.”49

38. However, we would be remiss not to inform the court of a deviation from

these principles regarding statutory definitions. As the Minnesota Supreme Court opined in a

1949 decision in State for Use of Altorfer Bros. Co. v. Dalrymple “a statutory definition cannot be

enlarged by usage or custom, but where the statutory definition is not clear as to the scope

and meaning of its terms, it becomes proper to examine the subject matter, the

44 St. George v. St. George, 304 N.W.2d 640, 643 (Minn. 1981). 45 Cease and Desist Order Issued to D. Loyd, 557 NW.2d 209, 212 (Minn. App. 1996), citing Minn. Stat. § 645.081) (“requiring that words defined in chapter be construed according to such definition”). 46 Walling v. Portland Terminal Co., 330 U.S. 148 (1947); Von *734 Weise v. Comm'r, 69 F.2d 439 (8th Cir.), cert. denied, 292 U.S. 655 (1934); see also In re Monrovia Evening Post, 199 Cal. 263, 248 Pac. 1017 (1926). 47 Id. 48 All Parks Alliance for Change v. Uniprop Manufactured Hous. Communities Income Fund, 732 N.W.2d 189, 194 (Minn. 2007) citing Bd. of Ed. of Minneapolis v. Sand, 227 Minn. 202, 210, 34 N.W.2d 689, 694 (1948). 49 Norman J. Singer and J.D. Shambie Singer, Statutes and Statutory Construction (Sutherland Statutory Construction) Vol.1A, 607-09 § 27:2 (7th ed. West 2009).

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circumstances under which the legislation was enacted, the object to be attained, and the

consequences of a particular interpretation. … In so doing, the reasonableness of the intent

ascribed to the legislature may be tested. It is to be presumed that the legislature did not

intend a result that is absurd or unreasonable, but that it intended to bring about a practical

result.”50

39. The statutory language of Minnesota Statute § 475.58, subd. 4 is plain as it is

reasonable to interpret it as providing a restriction on the use of moneys obtained through

bonds approved by the voters. The restriction of discretion is an expression of legislative

doctrine ― legislative intent: “The proceeds of obligations issued after approval of the

electors under this section may only be spent: (1) for the purposes stated in the ballot

language…”

40. Here, the ballot language was explicit as to its purpose to use bond funds to

make:

“other improvements to existing elementary school sites and facilities.”51

41. There is nothing in the ballot question that suggests the bond issue would be

used for the purpose of closing any school, let alone three elementary schools, Marine, Oak

Park, and Withrow:

Shall the school board …be authorized to issue its general obligation school building bonds in an amount not to exceed $97,000,000 to provide funds

for the acquisition and betterment of school sites and facilities

50 State for Use of Altorfer Bros. Co. v. Dalrymple, 227 Minn. 533, 538, 35 N.W.2d 714, 717-18 (1949). 51 Sch. Dist. No. 834 Bond Issue Question (May 12, 2015) App. 1 (emphasis added).

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including the construction and equipping of a classroom addition and various other improvements to the Stillwater High School site and facility…

the acquisition of land for and the construction and equipping of an elementary school facility and a transportation terminal;

the construction of upgrades and improvements to the Pony Stadium and various other athletic sites and facilities;

and the installation of HVAC systems

and various other improvements to existing elementary school sites and facilities?52

III. The School District cannot materially deviate from the original

purpose of using the obligations issued after the approval of the voters.

Closing of three existing elementary schools is a monumental shift from the original purpose of improving schools for the health and safety of children.

42. Long ago, our Minnesota Supreme Court held in State ex rel. Traeger v. Carleton,

that a village had “no discretionary power to change the authority [granted by voters], except

in minor details which do not affect the nature of the plan voted upon.”53 The judicial

principle holds true here.54 And the principle has not been challenged since as far as our

research has found and it is in accord with other jurisdictions.55

52 Sch. Dist. No. 834 Bond Issue Question (May 12, 2015) App. 1 (emphasis added). 53 State ex rel. Traeger v. Carleton, 242 Minn. 296, 64 N.W.2d 776, 778–79 (1954). 54 Although the Supreme Court affirmed the denial of a writ of mandamus, it was only because the petition for the writ was late. “Had relators applied for injunctive relief to prevent issuance of the bonds when it appeared that the proceeds of the bonds would be insufficient to complete the project in substantial accordance with the plan approved by the

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43. We also note the carefully chosen words used by the School District within

the bond question. For instance, in the phrase “for the acquisition and betterment of school

sites and facilities,” the word “betterment” is specifically defined under Minnesota Statute §

475.51, subd. 8. “Betterment” “includes reconstruction, extension, improvement, repair,

remodeling, lighting, equipping and furnishing.”56 The word “closing” is not found under

the definition of “betterment.”

44. Likewise, “acquisition” has a meaning which does not include the word

“closing:” “‘Acquisition’ includes purchase, condemnation, construction, and acquisition of

necessary land, easements, buildings, structures, machinery or equipment.”57 Hence, the

School District was careful, we will assume, in the words it chose to ensure the voter

understood what the District sought from the electorate in exchange for the passage of the

question for school building bonds of over $97 million.

vote of the people, it should have been granted.” State ex rel. Traeger, 242 Minn. at 300, 64 N.W.2d at 779. 55 E.g. Tukey v. City of Omaha, 54 Neb. 370, 74 N.W. 613, 615 (1898) (“[W]hen the governing body of a municipality is authorized by a vote of the people, and only thereby, to incur a debt for a particular purpose, such purpose must be strictly complied with, and the terms of the authority granted be strictly and fully pursued ....”); Coggins v. City of Asheville, 278 N.C. 428, 180 S.E.2d 149, 153-54 (1971) (“in planning large permanent improvements the governing authorities look ahead to the future fulfillment of the construction plans. The authorities will inspect and examine the work as it progresses and minor changes from time to time are expected if conditions change and unforeseen developments occur.”); Committee for Responsible Sch. Expansion v. Hermosa Beach City Sch. Dist., 142 Cal. App.4th 1178, 48 Cal.Rptr.3d 705, 714 (2006) (permitting use of bond proceeds to construct a gymnasium because the bond resolution expressly stated that the proceeds would be used in such a manner). 56 Minn. Stat. § 475.51, subd. 8. 57 Minn. Stat. § 475.51, subd. 7.

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45. No doubt the School District will now suggest that, as a political subdivision58

it should be granted some flexibility in the planning for contingencies and adapt to changes

in circumstances.59 While it may be true, it is limited and must be within the parameters of

the ballot question. Here, there is specific statutory language that restricts the “flexibility” of

the school district regarding changed circumstances:

“The proceeds of obligations issued after approval of the electors under this section may only be spent: (1) for the purposes stated in the ballot language…..”60

46. Again, the School District’s discretion is limited. However, the statutory

provision under Minnesota Statute § 475.58, subd. 4 contemplates changed circumstances by

requiring the school district to go back to the voters to change or expand the purpose of the

obligation bonds:

“The proceeds may not be spent for a different purpose or for an expansion of the original purpose without the approval by a majority of the electors voting on the question of changing or expanding the purpose of the obligations.61

47. Certainly, the closing of three existing elementary schools is not a de minimus

change in circumstances. It is a monumental shift from “improving” the existing school sites

and facilities.

48. Another out of state case is illustrative of how this case could be decided

cohesively with our own Supreme Court principle on this issue described above in State ex

58 A school district is defined under Chapter 475 as a “municipality.” 59 E.g. Gardner v. Davis Cty., 523 P.2d 865, 867 (Utah 1974). 60 Minn. Stat. § 475.58, subd. 4. 61 Minn. Stat. § 475.58, subd. 4.

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rel. Traeger. In a Colorado case, Busse v. City of Golden,62 the supreme court found that a

particular project required the municipality to exercise some degree of discretion regarding

the supervising of complex projects, as long as it did not materially depart from the purpose

of the bond measure and necessary expenditures incidental to the authorized purpose.63

While finding the municipality’s expenditures of a bond within its discretion, the court also

revisited Colorado’s constitutional, charter, and common law restrictions. It is the common

law restrictions that are illustrative in the instant case.

49. The Colorado court noted several restrictions that municipalities must observe

regarding the requirements in issuing bonds and expending the proceeds:

(1) the question submitted to voters must be specific and apprise them of the particular purpose for which the bonds are proposed to be issued;

(2) the purpose must not be misleading;

(3) the proceeds of the bonds must be spent for the purpose for which they were voted; and

(4) if the city expends bond proceeds for the approved purpose, the judgment and discretion concerning those expenditures are reserved for city officials, not the courts.64

50. Likewise, “fair play demands that defendants deep faith with the electors and

use the proceeds for the purposes for which the bonds were authorized….”65

51. The School District now suggests a need to consolidate elementary schools to

adjust to declining enrollment.66 Yet, the School District had acknowledged enrollment

62 Busse v. City of Golden, 73 P.3d 660 (Colo. 2003), as modified on denial of reh'g (July 28, 2003). 63 Id. 73 P.3d at 665. 64 Busse, 73 P.3d at 666. 65 Parker v. Anson County, 237 N.C. 78, 87, S.E.2d 338, 345 (1953) (Bond resolution incorporating projects approved by voters, commissioners could not later by unilateral action abandon one project by failing to issue bonds for that project)

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statistics when it accepted the Long-Range Facilities Report in February 2015 and approved

the ballot question noting the enrollment imbalance: “Enrollment imbalance: While overall

enrollment is holding steady or slightly declining, rapid expansion in the south end of the

district is causing overcrowding in several schools.”67 What changed? Only the

Superintendent of Schools. However, in this case the degree of discretion the

Superintendent and the School District Board now seeks materially departs from the

purpose of the bond measure. Closing of schools is not incidental to an otherwise

authorized purpose.

52. The publications the School District presently being distributed is a

monumental sea-change to the rationale provided to the public prior to the May 2015 bond

question election in “more than 50+ bond informational meetings held with staff, parents,

community members and civic groups.”68 Further, the School District is trying to boot-strap

arguments used for a 2013 bond levy publication to affect public notice on the electors for

the May 2015 bond election. The 2013 one sheet publication noted, if not threatened voters,

that if the $11 million levy was not passed a host of 28 bad things would happen including,

among those 28 listings, the restructuring and-or closing of an elementary school.69 There is

no evidence the School District warned the public of possible closure of any existing

elementary school facility. Further, we suggest it is disingenuous to rely on a 2013

66 E.g. Stillwater BOLD Freq. Asked Q., App. 214. 67 See Long-Range Facilities Plan. Com. Rept. at 2, App. 26. 68 Agenda Item IX.D – Bond Prop. Sum. (Apr. 16, 2015) App. 174. See also e.g. Presentation of Long Range Facilities Plan, App. 109-124; 175-185. 69 2013 Publ. “An $11Million Investment,” App. 226.

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publication as relevant to the instant proceedings or the May 2015 vote or otherwise impugn

2013 knowledge upon the 2015 elector voting on school building improvement bonds.

IV. The School District created a social contract with the voters and a trust for the voters through its own processes and procedures regarding the bond referendum and the purpose of the obligation proceeds.

53. While we believe our arguments stated above should stand alone and are

persuasive to grant the requested writ of mandamus, another argument should be

considered. A writ of mandamus may be issued to compel a board to perform an act which

the law specifically enjoins a duty resulting from an office or trust.70 Certainly, under

Minnesota Statute § 475.58, subd. 8 proscribes as duty upon the School District to perform

when the bond obligation proceeds are to be used for something greater than the purposes

stated in the bond language.

54. But here, as previously noted, the School District’s resolution in February

2015 adopted without restriction the MDE’s Review and Comment71 which was subsequently

published by the School District:

“The actions of the administration in consulting with the Minnesota Department of Education, causing a proposal to be prepared for submission on behalf of the board to the Commissioner of Education for the Commissioner’s Review and Comment and taking such other actions as necessary … are hereby ratified and approved in all respects. …The actual holding of the special election ….shall be contingent upon the receipt of a positive Review and Comment …. The clerk is hereby authorized and directed to cause the Commissioner’s Review and Comment to be published….72

70 Minn. Stat. § 586.01. 71 See Resol. Re: Issuance of Sch. Building Bonds, App. 161. 72 Id. (emphasis added).

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55. By the Board’s own direction, it ratified and approved all future actions

relating to the MDE’s review and comment as if part of the underlying resolution in whole.

The Review and Comment thus became part of the Resolution as if fully stated for which the

bond question itself garnered the adoption of all expenditures as listed in the “Description of

Proposed School Construction Project.”73 Hence, a vote for the bond question as presented

was a vote for the expenditures as contemplated, embraced, and identified through the

Board’s bond election resolution.74

56. The analogy is similar to that of Minnesota’s up-coming election to amend the

Minnesota Constitution. The question on the ballot is not the language that will be the

amendment to the Constitution:

“Shall the Minnesota Constitution be amended to remove state lawmakers' power to set their own salaries, and instead establish an independent, citizens-only council to prescribe salaries of lawmakers?”

The actual amendment to article IV, section 9, proposed by Laws 2013, chapter 124, section

1, and amended by Laws 2014, chapter 282, section 2, will read as follows:

Sec. 9. The salary of senators and representatives shall be prescribed by a council consisting of the following members: one person who is not a judge from each congressional district appointed by the chief justice of the Supreme Court, and one member from each congressional district appointed by the governor. If Minnesota has an odd number of congressional districts, the governor and the chief justice must each appoint an at-large member in addition to a member from each

73 Descr. of Prop. Sch. Constr. Proj. (Apr. 2015), App. 2. 74 This does not mean that monetary adjustments cannot be made within the improvements for each school. For instance, amount of expenditures may change because of costs overruns or a finding that the estimated costs were too high. In such cases, allocations can shift, but only if the improvements for the health and safety of the elementary school children in all nine existing schools were made.

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congressional district. One-half of the members appointed by the governor and one-half of the members appointed by the chief justice must belong to the political party that has the most members in the legislature. One-half of the members appointed by the governor and one-half of the members appointed by the chief justice must belong to the political party that has the second-most members in the legislature. None of the members of the council may be current or former legislators, or the spouse of a current legislator. None of the members of the council may be current or former lobbyists registered under Minnesota law. None of the members of the council may be a current employee of the legislature. None of the members of the council may be a current or former judge. None of the members of the council may be a current or former governor, lieutenant governor, attorney general, secretary of state, or state auditor. None of the members of the council may be a current employee of an entity in the executive or judicial branch. Membership terms, removal, and compensation of members shall be as provided by law. The council must prescribe salaries by March 31 of each odd-numbered year, taking into account any other legislative compensation provided to legislators by the state of Minnesota, with any changes in salary to take effect on July 1 of that year. Any salary increase for legislators authorized in law by the legislature after January 5, 2015, is repealed.

57. With the adoption of the specific details found in the MDE’s Review and

Comment and adopted through the School District’s resolution, the School District formed

a contract with the voters as to its conduct regarding the bond purposes. It is at the very

least a type of social contract75 in which the School District was provided a trust of funds

75 See “A Next Social Contract for the Primary Years of Education,” 1 Lisa Guernsey and Sara Mead (New America Foundation, March 2010):

In the 20th century, education also became a foundational piece of our economic social contract. Most Americans reject the notion that a just social contract calls for substantial equality of outcome, but we cherish a belief in equality of opportunity ―

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over which as trustee is to expend those moneys within the restrictions of the trust-contract

contemplated. This is not unprecedented.

58. For instance, in O'Farrell v. Sonoma Cnty.,76 the board of supervisors called an

election for the purpose of voting bonds for the construction of a road of a definite length,

and stating the amount to be expended. Subsequently the board attempted to enter into a

contract for the construction of only a part of the road specified. The Utah Supreme Court

held that the order calling the election, and the ratification of that order by the electors,

constituted a contract between the state and the individuals whose property was affected—a

contract which could not be altered except by all the parties.77 Here, the Petition is a

taxpayer and voter who agreed and voted for the bond ballot question. And as Minnesota

Statute § 475.58, subd.4 suggests only school district voters under the circumstances of this

case can alter the purpose with the agreement of the School Board that must put the issue

before the voters.

CONCLUSION

The Stillwater Area Public Schools, Independent School District 834 seeks to close

three elementary schools on the heel of a recently passed school building bond referendum

that all citizens have the opportunity to rise or fall as far as their hard work and abilities allow. This understanding of equality of opportunity has come to include a belief that all American youngsters should have access to a system of public education that enables them to develop their effective skills, habits of mind, and behavior.

76 O'Farrell v. Sonoma Cnty., 189 Cal. 343, 208 P. 117, 119 (Utah 1922). 77 See also, Marteeny v. Louth, 197 Ill. App. 106, 113, 115 (1915) (holding that a bond proposition that proposed construction of specific road segments at a cost of $40,000 eliminated the highway commissioner's discretion to select more expensive construction materials and build only a portion of the road segments).

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of $97 million. The bond referendum specifically sought as a purpose to improve all nine of

the district’s existing elementary schools and specifically identified them as receiving

improvements to protect the health and safety of those elementary children. The

improvements included three existing schools now identified for closure. No where in any of

the documentation or bond question does it state closure of elementary schools was an

option or contemplated.

Further, the School District adopted, through its resolution, the Minnesota

Department of Education’s Review and Comment and published in whole. The Review and

Comment specifically listed all projects and moneys relied upon by voters before they cast

their ballot in the May 2015 election. Nothing changed as the District conducted over 50

meetings with the public to make representations as to what purpose the bond referendum

was meant to achieve. If nothing else, the School District provided the electorate with a

social contract to achieve the objectives of the other ― moneys to make improvements for

improvements to protect the health and safety of school children at each of the existing

elementary schools.

Finally, the Minnesota legislature, under Minnesota Statute § 475.58, subd. 4,

specifically restricted the use of bond obligations to those purposes stated in the ballot

language or take the matter back to the voters to achieve a majority vote again to change or

expand the purpose of the original purpose. The School District has not done so to date.

Regardless, this Court should grant a writ of mandamus to ensure the legislative doctrine as

contemplated under § 475.58, subd. 4 is achieved and that ultimately, the voters who are

being taxed for the obligations owed, will have the final say.

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RELIEF REQUESTED

1. Grant the Petition for a writ of mandamus;

2. Require and direct through a writ of mandamus that the Stillwater Area Public

Schools, Independent School District 834 to either spend the proceeds of the

obligations issued after approval of the electors (by the election of May 12, 2015)

to improve, not close, the elementary schools in question, or seek the approval of

the majority of the electors voting on the question on whether to change or

expand the original purpose of the obligations;

3. Award to the Petitioner reasonable attorney fees and costs as allowed under the

law.

Dated: March 1, 2016 /s/Erick G. Kaardal Erick G. Kaardal, 229647 Mohrman, Kaardal & Erickson, P.A. 150 South Fifth Street, Suite 3100 Minneapolis, Minnesota 55402 Telephone: 612-341-1074 Facsimile: 612-341-1076 Email: kaardal@mklaw.com Attorneys for Petitioner(s)