Hahner v. Board of Ed.

Decision Date28 February 1979
Docket NumberNo. 77-871,No. 1,W,1,77-871
Citation278 N.W.2d 474,89 Wis.2d 180
PartiesJames HAHNER and Mary F. Hahner, by her guardian ad litem, Gerald M. O'Brien, Plaintiffs-Respondents, v. BOARD OF EDUCATION, Wisconsin Rapids, School Districtisconsin Rapids, Wisconsin, Defendant-Appellant.
CourtWisconsin Court of Appeals

This is an appeal by the Board of Education of Wisconsin Rapids School District No. 1, Wood County, from a judgment which ordered the issuance of a peremptory writ of mandamus directing the board to furnish transportation for plaintiff Mary F. Hahner and all other private school pupils similarly situated to all private schools in the school district which would be in session on March 20, 21, 22, and 23, 1978.

The appellant board operates 104 bus routes on which students attending Lutheran schools and Catholic schools ride the same buses as public school students. The public school calendar for the 1977-78 school year provided that all public schools be closed for spring vacation during the week of March 20 through March 24, 1978 (Holy Week). The Lutheran schools and the Catholic high school were to be closed for spring vacation during the same week as the public schools. However, the five Catholic elementary schools held classes during this week. No change in the academic curriculum or the scheduling of classes in these five days was contemplated from the normal day-to-day educational process.

The Catholic elementary schools requested that their students be bused by the school board during Holy Week. Noting that the public schools and all the other private schools would be closed that week; the extra costs involved; the administrative difficulties of consolidating bus routes, rescheduling times and pickup points; and consistent with its policy of busing private school students only on days the public schools are in session, the board declined to provide special busing service to the Catholic elementary schools.

This problem has been a recurrent one in this district. In the 1974-75 school year, the spring vacation for the public schools also was during the week in which Good Friday fell. The Catholic elementary schools held classes that week and were bused by the public school authorities. Concerned over the problems associated with the running of such special bus routes, the appellant school board adopted a policy in 1975 that private school students would be bused only on days the public schools were in session.

In the 1975-76 school year there was no conflict in spring break schedules. In the 1976-77 school year the same conflict in schedules occurred but the board, despite its 1975 policy, ran special buses for the Catholic schools during Holy Week. In the 1977-78 school year the same conflict as to schedules arose and the school district readopted its 1975 policy it would bus private students only according to the public school calendar and so advised the Catholic schools. The Catholic elementary schools sought reconsideration of that policy, in part because, though they understood the district's "monetary reasons," they also knew "that (their) philosophy of education was certainly not taken into consideration when (the district) chose Holy Week as a spring vacation."

The school board declined to change its policy. Concerns about increased costs and setting a precedent which would require additional special busing due to numerous other variations in the calendars of private and public schools were noted.

On February 24, 1978 the plaintiff, a student at one of the Catholic elementary schools which had requested bus transportation during spring vacation, and her parents brought this mandamus action against the school board to compel it to bus her and similarly situated students to their parochial schools during Holy Week.

Judgment granting the writ was entered March 17, 1978.

Michael H. Auen, of Melli, Shiels, Walker & Pease, S. C., Madison (argued), for defendant-appellant.

Maris Rushevics, of Anderson, Fisher, Shannon, O'Brien & Rice, Stevens Point (argued), for plaintiffs-respondents.

Before GARTZKE, P. J., DYKMAN, J. and GEORGE R. CURRIE, Reserve Judge.

GEORGE R. CURRIE, Reserve Judge.

After the briefs had been filed in this case the court requested the parties to file briefs on the issue of mootness inasmuch as the school week with which the judgment was concerned had long since passed. The parties complied with this request and briefs dealing with the mootness issue were submitted prior to oral argument.

The general rule is that a court will not render a decision in a moot case because it would be advisory and a court acts only to determine actual existing controversies and not to announce abstract principles of law. 1 In Wisconsin E. R. Board v. Allis-Chalmers W. Union 2 the Wisconsin Supreme Court stated:

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.

This definition of mootness was reaffirmed in the recent case of State ex rel. Ellenburg v. Gagnon. 3

Though as a general rule it will not consider questions which have become moot, the supreme court has recognized an exception when the moot question is of great public importance. 4 In order for a court to consider a case that has become moot the question must be of "sufficient public character, interest and significance." 5

Examples of issues which have been held to be of sufficient public importance to warrant a court deciding them after circumstances have rendered the decision moot as to the parties involved are: whether a school board or the annual school meeting of the electors has the power to close a school and convert the school building to other uses; 6 what constitutes "good and sufficient reasons" to support the issuance of a certificate ordering a special election to recall a public official; 7 and whether the district attorney or the county corporation counsel is the proper officer to enforce the state gambling law. 8

The court is of the opinion that the issue presented in this case of the proper interpretation of the statutes having to do with the transportation of pupils attending private schools is one of sufficient public importance to warrant the court retaining the case and deciding it on the merits. Not only is the issue one of public importance, but it is one that may frequently recur if not now decided, as pointed out in the brief filed by appellant on the mootness issue. It was held in Racine v. J-T Enterprises of America, Inc. 9 that even though an appeal has become moot insofar as the particular parties are concerned, if the question frequently recurs, the decision has a practical legal effect since it can guide trial courts in similar instances.

The issue on the merits is whether the appellant school board violated sec. 121.54(2)(b)1., Stats., when it declined to bus students attending the Catholic elementary schools in the district during the period of March 20 through March 24, 1978, during which the public schools were to be closed for spring vacation. The crucial question is whether the school board is by statute given any control over the time when it is required to operate buses to transport students to the private schools which they may be attending, and, if it does, whether this control extends to denying such transportation during days when the public schools are closed for scheduled vacation.

The court is satisfied that in answering these questions it must not only refer to sec. 121.54(2)(b)1., Stats., but must also give consideration to the provisions of sec. 121.56, Stats. These two sections being In pari materia must be construed together. They provide as follows:

Section 121.54(2)(b)1., Stats.

Except as provided in sub. (1) or otherwise provided in this subsection, the school board of each district operating high school grades shall provide transportation to and from the school he attends for each pupil residing in the school district who attends any elementary grade, including kindergarten, or high school grade at a private school located 2 miles or more from his residence, if such private school is a school within whose attendance area the pupil resides and is situated within the school district or not more than 5 miles beyond the boundaries of the school district measured along the usually traveled route.

Section 121.56, Stats.

School bus routes. The school board of each district shall make and be responsible for all necessary provisions for the transportation of pupils, including establishment, administration and Scheduling of school bus routes. Upon the request of any school board, the state superintendent shall provide advice and counsel on problems of school transportation. Any private school shall, upon the request of the public school officials, supply all necessary information and reports. The transportation of public and private school pupils shall be effectively co-ordinated to insure the safety and welfare of the pupils. Upon receipt of a signed order from the state superintendent, the school board shall discontinue any route specified by him. (Emphasis supplied.)

For the purposes of this case the word "scheduling" in sec. 121.56, Stats., is of paramount importance. It is a word not used in any of the other statutes dealing with the transportation of students to public and private schools. As applied to "school bus routes" it necessarily means more than merely establishing routes; otherwise the word "establishment" in the same sentence would be superfluous. One of the cardinal rules of...

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