687 F.2d 1164 (8th Cir. 1982), 81-2106, Monahan v. State of Neb.

Docket Nº:81-2106, 81-2196.
Citation:687 F.2d 1164
Party Name:James H. MONAHAN, as next friend of Daniel J. Monahan, George Rose, as next friend of Marla Rose, Appellants, v. STATE OF NEBRASKA, Charles Thone, Governor of The State of Nebraska, Board of Education, School District # 1, Douglas County, Nebraska, Owen Knutzen, Individually, and as Superintendent of School District # 1, Douglas County, Nebraska, D
Case Date:August 30, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1164

687 F.2d 1164 (8th Cir. 1982)

James H. MONAHAN, as next friend of Daniel J. Monahan,

George Rose, as next friend of Marla Rose, Appellants,

v.

STATE OF NEBRASKA, Charles Thone, Governor of The State of

Nebraska, Board of Education, School District # 1, Douglas

County, Nebraska, Owen Knutzen, Individually, and as

Superintendent of School District # 1, Douglas County,

Nebraska, Dale Samuelsen, Individually, and as Assistant

Superintendent in Charge of Special Education, of School

District # 1, Douglas County, Nebraska, Anne Campbell,

Commissioner of Education for the State of Nebraska, State

Board of Education, Walter M. Thompson, Individually, and as

a Member of the State Board of Education, Margaret Lockwood,

Individually, and as a Member of the State Board of

Education, Frank E. Landis, Individually, and as a Member of

the State Board of Education, Don M. Lienemann,

Individually, and as a Member of the State Board of

Education, Dorothy Creigh, Individually, and as a Member of

the State Board of Education, Arlene E. Hart, Individually,

and as a Member of the State Board of Education, William C.

Ramsey, Individually, and as a Member of the State Board of

Education, Dorothy Beaver, Individually, and as a Member of

the Board of Education, School District # 1, Douglas County,

Nebraska, June Bostwick, Individually, and as a Member of

the Board of Education, School District # 1, Douglas County,

Nebraska, Walter Calinger, Individually, and as a Member of

the Board of Education, School District # 1, Douglas County,

Nebraska, Pat Geringer, Individually, and as a Member of the

Board of Education, School District # 1, Douglas County,

Nebraska, Leo Hoffman, Individually, and as a Member of the

Board of Education, School District # 1, Douglas County,

Nebraska, Gaynelle Goodrich, Individually, and as a Member

of the Board ofEducation, SchoolDistrict # 1, Douglas

County, Nebraska, Ruth Thomas, Individually, and as aMember

of the Board of Education, School District # 1, Douglas

County,Nebraska, Frank Bogard, Individually, and as a Member

of the Board ofEducation, School District # 1,Douglas

County, Nebraska, McGruder, Individually, and as a Member of

the Boardof Education, School District # 1, Douglas County,

Nebraska, James A. Monaghan,Individually, and as a Member of

the Board of Education, School District # 1,DouglasCounty,

Nebraska, James Beutel, Individually, and as a Member of the

Board ofEducation, School District # 1, Douglas County,

Nebraska, Leo Kastrick,Individually, and as a Member of the

Board of Education, School District # 1,Douglas

County,Nebraska, Appellees.

George P. ROSE, as next friend of Marla Rose, Appellant,

v.

STATE OF NEBRASKA, Charles Thone, Governor of The State of

Nebraska, Board of Education, School District # 1, Douglas

County, Nebraska, Owen Knutzen as Superintendent of School

District # 1, State Board of Education for the State of

Nebraska, Anne Campbell, Individually, and as Executive

Officer for the State Board of Education, State Department

of Education for the State of Nebraska, Anne Campbell,

Administrative Head of the State Department of Education,

Anne Campbell, Commissioner of Education for the State of

Nebraska, Patricia Harris, Secretary of HEW, Edward W.

Martin, Office of Special Education, U.S. Department of

Education, U.S. Department of Health, Education, and the

U.S. Department of Education, Appellees.

Nos. 81-2106, 81-2196.

United States Court of Appeals, Eighth Circuit

August 30, 1982

Submitted May 19, 1982.

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Marla G. Rose, pro se.

Ronald D. Lahners, U.S. Atty., D. Nebraska and David J. Ryan, Asst. U.S. Atty., Omaha, Neb., for federal appellees in No. 81-2196.

Paul L. Douglas, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., John P. Heil, Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, Neb., for the State of Nebraska, Its Agencies, Political Subdivisions, and Their Officers and Employees.

Mino St. Lucas, Omaha, Neb., for appellant Monahan.

Quintin S. Hughes, Bellevue, Neb., for appellant Rose.

Before McMILLIAN, Circuit Judge, MARKEY, [*] Chief Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

James Monahan and George Rose brought these actions on behalf of their handicapped children, Daniel Monahan and Marla Rose, now Marla Corrado. 1 The complaints pleaded claims arising under the Education for All Handicapped Children Act of 1975 (EAHCA), 20 U.S.C. § 1401 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983. The principal issue in this case, at least at its inception, has been the validity of the Nebraska statutory procedure for administrative appeals from placement decisions made by school officials. Plaintiffs claimed that Nebraska law as it existed when their complaints were first filed, Neb.Rev.Stat. § 43-662 (1978), gave the State Commissioner of Education the power to review conclusions reached by hearing officers on administrative appeals filed by dissatisfied parents. This power of review, it was argued, is in conflict with EAHCA itself, under which a decision made by an impartial hearing officer is final. After remand from this Court's decision on the prior appeal, having to do with preliminary relief, the District Court 2 dismissed the complaints as moot because the allegedly offending provision of state law had been amended to make it clear that the Commissioner of Education could not change a decision made by a hearing officer. L.B. 855, effective July 19, 1980, now codified as Neb.Rev.Stat. § 43-662 (Cum.Supp.1980), made this change. The District Court discussed other issues raised by the complaints and ultimately decided to dismiss them without prejudice.

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Plaintiffs appeal, claiming, among other things, that repeal of the challenged statute does not make the case moot. For the most part, we affirm, but we do remand for consideration of an award of attorney's fees to the plaintiff Rose.

I.

The question whether plaintiffs' original attack on the alleged inconsistency between Nebraska law and EAHCA is now moot need not detain us long. The inconsistency has disappeared, and there is no measurable possibility that it will ever recur. To pursue the issue now would be to render an advisory opinion, which we may not do under Article III of the Constitution. For the reasons ably set forth by the District Court, the question of conflict between the state and federal laws is no longer a live controversy. See Rose v. Nebraska, 530 F.Supp. 295, 298-99 (D.Neb.1981). Plaintiffs make certain other complaints about the Nebraska procedure implementing EAHCA, but these questions were resolved against them by this Court on the prior appeal. "The record establishes that the placement hearing was free from procedural error, save for the alleged impermissible review by the Commissioner." Monahan v. Nebraska, 645 F.2d 592, 599 (8th Cir. 1981). So far as prospective injunctive relief against the operation of the Nebraska statutory scheme is concerned, this case is moot.

II.

Even though the plaintiffs' attacks on the Nebraska procedural scheme for reviewing EAHCA complaints are moot, however, plaintiffs might still be entitled to review of the substantive decision made in the placement of their children, and they so contend on this appeal. We agree with the District Court that these issues are also moot. Marla Rose became 18 years of age on February 3, 1981, and on May 3, 1981, she married Timothy Corrado. Under Neb.Rev.Stat. § 38-101 (1978), Marla's minority ended with her marriage, and her residence therefore no longer automatically follows that of her parents. She and her husband have moved out of the Omaha School District, which was the principal defendant below, and, since February 6, 1981, Marla has voluntarily ceased attending classes. She now lives in another school district and does not attend school. While she has stated that she plans to move back to the Omaha School District and continue her education, we are not told when this will occur. Whether it will ever actually happen is speculative, and therefore the issues she raises about her proper educational placement are not yet ripe for adjudication. Given these circumstances, it would be improper for us to address her requests for declaratory and injunctive relief. See DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

The plaintiff Monahan contends that the question of his son, Daniel's, proper placement is not moot. Mr. Monahan wants this Court to direct the Omaha School District to contract with the Millard School District, School District No. 17, so that Daniel can attend the Developmental Center at the George Norris School, within the Millard School District, at the expense of the Omaha School District. As to this claim, we again agree with the District Court that relief is barred, not because of mootness, but because of failure to exhaust administrative remedies. Monahan never invoked the impartial hearing process provided by state law. On the prior appeal, we excused his failure to exhaust because of his contention, which undoubtedly had substance, that the procedures provided by Nebraska statutes were in conflict with federal law. It would make no sense to require someone to exhaust an administrative remedy when his very contention is that the remedy provided is unlawful. As we stated on the prior appeal 645 F.2d at 597: "Although the federal framework mandates...

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