Rose v. State of Nebraska

• Decision Date: 09 October 1981
• Docket Number: 80-0-164.,Civ. No. 81-0-10
• Citation: 530 F. Supp. 295
• Parties: George P. ROSE, as next friend of Marla G. Rose, Plaintiff, v. STATE OF NEBRASKA, et al., Defendants James H. Monahan, as next friend of Daniel J. Monahan, George ROSE, as next friend of Marla Rose, Plaintiffs, v. STATE OF NEBRASKA, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

530 F. Supp. 295

George P. ROSE, as next friend of Marla G. Rose, Plaintiff, v. STATE OF NEBRASKA, et al., Defendants James H. Monahan, as next friend of Daniel J. Monahan, George ROSE, as next friend of Marla Rose, Plaintiffs, v. STATE OF NEBRASKA, et al., Defendants.

Civ. Nos. 81-0-10, 80-0-164.

United States District Court, D. Nebraska.

October 9, 1981.

COPYRIGHT MATERIAL OMITTED

Mino St. Lucas and James P. Miller, Omaha, Nebraska, for Monahan.

Quentin S. Hughes, Bellevue, Nebraska, for Rose.

Harold Mosher, Asst. Atty. Gen., Lincoln, Nebraska, for State.

John P. Heil, Omaha, Nebraska, for School District.

George Rose, pro se.

David Ryan, Asst. U. S. Atty., Omaha, Nebraska, for U. S. Secretary of Education.

MEMORANDUM AND ORDER

RICHARD E. ROBINSON, Senior District Judge.

Marla Rose¹ and Daniel Monahan are handicapped children. Marla is deaf and her speech is impaired. Daniel has muscular dystrophy, he is currently confined to a wheelchair, and is mentally retarded.

In these two actions Marla and Daniel, through their respective next of friends, challenge the validity of certain portions of the Nebraska and federal statutes which relate to the education of handicapped children. See Neb.Rev.Stat. § 43-661 — 43-668 and 20 U.S.C. § 1401 et seq. Essentially, the plaintiffs are dissatisfied with the educational placement recommended by the defendant school district. This matter is currently before the Court upon the defendants' suggestion of mootness and motion to dismiss. A hearing on defendant's suggestion and motion in both cases was held on August 25, 1981. The suggestion of mootness in each case is considered separately below.

Monahan and Rose v. State of Nebraska et. al., 80-0-164.

In this action the plaintiffs pray for both injunctive relief and damages claiming that § 43-662 Neb.Rev.Stat. is inconsistent with the federal Education for all Handicapped Children Act of 1975. 20 U.S.C. § 1401-1420. Judge Denney granted injunctive relief to Rose but denied same to Monahan on May 16, 1980. See Memorandum and Order Filings 19 and 20. The parties appealed and the Eighth Circuit Court of Appeals, in an opinion reported at 645 F.2d 592 (8th Cir. 1981), affirmed in part, vacated in part, and remanded the case 491 F.Supp. 1074 to the District Court. 645 F.2d at 599.

The federal Handicapped Children Act sets out various procedural requirements which states must follow in order to obtain federal funds for the education of handicapped children. These requirements protect the rights of handicapped children by establishing certain procedural safeguards. Among other things, the Federal Act requires that the parents of handicapped children be given prior written notice of any change in the educational placement of their children. If the parents are dissatisfied with the placement they are entitled to an impartial due process hearing. The Act provides, that subject to a specified appeals procedure, the decision made at the hearing is final. 20 U.S.C. § 1415.

To comply with the Federal Act, the Nebraska Legislature in 1978 amended its statutes dealing with the education of handicapped children by enacting L.B.871. That legislation includes the provision which is at issue here. Codified at § 43-662 Neb.Rev. Stat. (1978), it provides that:

The `State' Department of Education shall conduct hearings ... using hearing officers who shall prepare a report containing findings of facts based on the evidence presented and decisions based on such findings. After reviewing such findings and decisions the Commissioner of Education shall then recommend or direct such action as may be necessary.

The plaintiffs argued, both before Judge Denney and on appeal, that the statute conflicts with the Federal Act which requires that the due process hearing be final. They contend that the statute gives the Commissioner of Education the discretion to reject the hearing officer's findings thereby undermining their right to due process. In granting the preliminary injunction the District Court, Denney, J., found that the Nebraska and Federal Statutes were inconsistent. Memorandum Opinion at 21. Filing # 19. While not finding that the statutes conflict, the Appeals Court concluded that the "possible inconsistency raises questions sufficient to satisfy the preliminary injunction test." 645 F.2d at 599.

That portion of the Nebraska Statute which is allegedly inconsistent with the Federal Act was deleted by the Nebraska Legislature in July, 1980. L.B.855 deleted the portion of Neb.Rev.Stat. § 43-662 relating to the Commissioner's review of the due process hearing. See Neb.Rev.Stat. § 43-662 (Cum.Supp.1980). It also specifically provides for the finality of the hearing decision subject only to judicial review. Neb.Rev.Stat. § 43-666 (Cum.Supp.1980).

In light of the change in the Nebraska legislation, the defendants contend that the primary issue² in this action is now moot. They correctly point out that the challenged statute should be considered as it is currently written and not as it once appeared. See Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201, 24 L.Ed.2d 214 (1969); Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969).

The plaintiffs maintain that injunctive relief is still appropriate and that the issue is not moot because state law may again change "and the commissioner will again ignore federal law." Essentially, the argument is that the issue is not moot because it is "capable of repetition yet evading review." Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). This exception to the mootness doctrine first appeared in Southern Pacific Terminal Co. and it has been invoked numerous times in the last seventy years. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1975); Sec. v. Medical Comm. for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). The repetition-evasion exception is appropriate, however, only where there is a possibility that the challenged conduct or law will reoccur. When there is no possibility of repetition or where the likelihood of repetition is remote and speculative the issue is moot. Defunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974); Hall v. Beals, supra 396 U.S. at 49, 90 S.Ct. at 202.

In this case the possibility that the legislature will again amend the law so that it conflicts with the Federal Act is remote at best. This is particularly true since the Nebraska legislation was passed in an effort to comply with the requirements of the Federal Statute. Nebraska Legislative Floor Debate on L.B.871, 85th Legis.2d Sess. 08706, 09246 (1978) (statements of Senator Koch). (Cited in Memorandum p.4, May 16, 1980 Filing # 19). This is not an appropriate case for the application of the repetition-evasion exception.

The Court finds that the recent amendment of Neb.Rev.Stat. § 43-662 and the enactment of Neb.Rev.Stat. 43-666 moot the question of whether the Nebraska statute is inconsistent with the Federal Legislation. As amended, the Nebraska statute eliminates any discretion previously vested in the Commissioner and thereby insures the integrity of the due process hearing.

While the recent amendments to the Nebraska statutes extinguish the plaintiff's claim that the Nebraska statute is at odds with the Federal Act, there is still a question of whether the case should proceed to a determination of what damages, if any, the plaintiffs have sustained. In this regard, the defendants claim that the entire controversy is moot. They point to various developments with respect to the status and educational placement of Marla and Daniel which they contend makes further proceedings unnecessary. In determining whether any justiciable issues remain, the Court will consider the background and current status of each child.

MARLA ROSE.

Marla Rose attended class at Beveridge Junior High School in the Omaha School District prior to the 1978-79 school year. The defendant School District notified Marla's parents in June, 1978 that it proposed to change Marla's placement from Beveridge to the Nebraska School for the Deaf. Her placement at the latter was to be on a residential basis. The proposed change in placement was based on the School District's determination that Marla was not making any progress under the oral method of instruction. The School District decided that Marla needed instruction in both the oral method and manual method of instruction. The Nebraska School for the Deaf was chosen because it is the only school equipped to teach both methods to a person of Marla's age.

Dissatisfied with the proposed change, Marla's parents requested a due process hearing on August 14, 1978. The hearing was completed on March 23, 1979 and the hearing officer submitted his report to the Commissioner of Education on May 16, 1979. The hearing officer recommended that the Rose's appeal be dismissed because the proposed placement provided Marla the full appropriate education required by law. See Springdale School District v. Grace, 656 F.2d 300, 303 (8th Cir. 1981). (defining "appropriate education" under the Federal Act). The Commissioner adopted the hearing officer's report verbatim and dismissed the Rose appeal.

On June 28, 1979, Marla's father, George Rose, filed a pro se complaint in this Court challenging the Commissioner's decision. CV. 79-0-300. In compliance with the Federal Act's requirement that a child's educational placement be held in status quo during litigation 20 U.S.C. § 1415(e)(3), the parties to that suit entered into a stipulation providing that Marla would attend Monroe Junior High School where Marla's studies would be practically identical to those at Beveridge. After two weeks, Marla's parents unilaterally removed her from Monroe and placed her in an unaccredited private school with no special programs...