School in court over Spring Creek closure
Published: Thursday, July 18th, 2013
The closing of Spring Creek School remained a heated topic on Thursday, July 11, but this time the debate took place in a new setting — the Custer County courthouse.
Spring Creek residents Jacob and Richard Rausch petitioned the court for issuance of a writ of mandamus against the Custer School District Board of Education, which would, by law, stop the board from closing the school. The writ of mandamus was entered by the court based upon the allegations set forth in the petition, without notice to the school. The writ ordered the Custer School District Board of Education to re-open Spring Creek or show cause why the district should not be required to re-open the school.
On behalf of the Custer School Board of Education, Tracy Kelly, attorney for the Custer School District, filed a motion to quash the writ and dismiss the petition on the grounds that the petitioners lacked standing to bring the action. Kelley also filed an answer and objection to the underlying petition.
After the hearing, the court granted the district’s motion to quash and dismiss the petition on the grounds that petitioners lacked standing to bring the action. The court found that the petitioners were “aggrieved persons” and had a plain, speedy and adequate remedy available to them at law through appeal of the board’s decision pursuant to SDCL 13-46-1 and, therefore, lacked standing to bring the action for writ of mandamus.
The court further found that taxpayers did not have a separate right apart from “persons aggrieved” to bring the action for writ of mandamus. The court pointed out that the law allows taxpayers the right to submit the question on closure of the school to a vote of the public but that course was not taken in this case. After addressing the motion to quash, the court ruled on the merits of the petition, finding that the school board did not violate its policy concerning the closure of rural schools.
The action against the Custer School District Board of Education was filed June 26 by Jacob and Richard Rausch. Representing them was Jeff Swett of Costello, Porter, Hill, Heisterkamp, Bushnell and Carpenter LLP, who said the petitioners did try to handle the appeal informally, but the board ignored the requests.
Representing the respondent was Kelley, who argued the policy of the board was followed and the correct action was taken to close Spring Creek.
Petitioners called Larry Vickers, Richard Rausch and Jacob Rausch while the respondents called superintendent Scott Lepke and board of education members Tanya Olson, Tim Wicks, Anne Sandvig and Tom Martin to the stand.
During the trial, a timeline starting at the November 2011 board of education meeting was examined.
At that meeting, a motion was made to close Spring Creek School. After discussion, Olson asked the board to delay action and give her a year to explore other alternatives. A committee was then formed to explore options and work with rural school parents. Those findings were reported on at the March 2012 meeting.
At the November 2012 meeting, closing the rural schools came up once again and a motion was made to close both Fairburn and Spring Creek schools. Since the alternatives Olson explored weren’t feasible or weren’t available to the district, the board voted to close the rural schools. Petitioners argued that once the new year started for the board (July 1, 2012), the patrons of the school district were not invited to discuss further alternatives to closure of the school, in violation of the board policy.
They further argued that the board violated its policy by failing to give sufficient notice of intent to close the school to parents and Spring Creek residents prior to the Nov. 12, 2012, meeting
Kelley argued proper notice was provided and the patrons were provided the opportunity to develop alternatives with the committee.
“I think the board went above and beyond what the policy required by forming a committee and looking at alternatives,” Kelly said.
She also argued that before notice of intent to close can be given, the board must take formal action by vote upon a motion.
Kelley said the action taken at the Nov. 12, 2012, board meeting to close the school is the notice intended in the policy, consistent with state law requiring action to be taken prior to Dec. 1, and such action then triggers the petition and appeal rights.
After the vote in the November 2012 meeting, a petition was circulated within the Spring Creek community to submit the question of the school’s closure to a vote of the public. Kelley said an appeal taken pursuant to SDCL 13-46-1 was the proper course of action to challenge the alleged illegality of the decision.
“The only two things the circuit court can look at under an appeal are the legality of the decision and the arbitrariness of that decision,” Kelley said. “Inappropriate expenditures of budget, public monies and those issues are normally cause for mandamus. For the taxpayers to try to take that argument, which is very specific and limited to persons aggrieved, the case law is very clear that it is not allowed.”
“The petitioners do have standing in this case,” Swett said. “There’s no requirement that the petitioners take the speediest remedy of the law. The statute states that the court shall issue a writ if there is no speedy remedy. This is the remedy that was available at that time. The court has the discretion to take that action.
“A taxpayer does have standings to protect public rights and the policy handbook gives rights to the public. In this case, Richard, a taxpayer and member of the community, is able to file writ of mandamus,” he said. “We’re not questioning if it was a smart decision for the school, but were the proper procedures filed?”
Swett argued that the notice of invitation to patrons has to come before the decision is actually made; therefore the notice was never actually made.
“The agenda stated ‘possible closure of rural schools,’” he said. “It’s not even clear what rural schools are included.”
In rendering a decision, the court stated that “the question is if the procedure was followed and I believe it was,” Judge Robert Mandel said.
Mandel said a number of meetings were established, alternatives were considered and the board was consecientious in its vote.
“I think we’re talking about a decision that’s always difficult to make,” he said. “Nobody wants to close a rural school, but nobody wants to deal with the expenses of keeping all the schools open at the same time, either. These issues that come into play always make these decisions difficult.”
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