GROSSE POINTE PUBLIC SCHOOLS V DEPT OF EDUCATION
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STATE OF MICHIGAN
COURT OF APPEALS
MICHIGAN DEPARTMENT OF EDUCATION,
Petitioner-Appellee,
v
FOR PUBLICATION
May 5, 2005
9:05 a.m.
No. 252288
Wayne Circuit Court
LC No. 03-304444-AA
GROSSE POINTE PUBLIC SCHOOLS,
Respondent-Appellant.
GROSSE POINTE PUBLIC SCHOOLS,
Plaintiff-Appellant,
v
MICHIGAN DEPARTMENT OF EDUCATION,
Defendant-Appellee.
No. 252428
Wayne Circuit Court
LC No. 03-3-4443-CZ
Official Reported Version
Before: Talbot, P.J., and Jansen and Gage, JJ.
TALBOT, P.J. (dissenting).
Because appellant has paid for, and D.G. has already received, an independent
educational evaluation (IEE), there is no existing fact or right at issue, and appellant's claim is
moot. I, therefore, respectfully dissent from the majority opinion because I would dismiss
appellant's claims without reaching the merits of the issues.
The majority correctly points out that this Court may decide moot issues when "the issue
is one of public significance that is likely to recur, yet evade judicial review." Federated
Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002). The doctrine of
"capable of repetition, yet evading review," however, applies to prevent a case from being moot
only when "'(1) the challenged action [is] in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining
party [will] be subjected to the same action again.'" Illinois State Bd of Elections v Socialist
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Workers Party, 440 US 173, 187; 99 S Ct 983; 59 L Ed 2d 230 (1979), quoting Weinstein v
Bradford, 423 US 147, 149; 96 S Ct 347; 46 L Ed 2d 350 (1975).
Here, appellant has made no showing that the challenged action is too short in duration to
be fully litigated or that there is a reasonable expectation that it will be subjected to the same
action, i.e., by the same party, again. The majority's argument—that this issue "could evade
review if school districts refused to pay" for IEEs for other special education students because
students could "potentially" be done with school before the matter makes it through the judicial
process—is unsupported by any facts and amounts to nothing more than speculation. Ante at
___. To avoid mootness under the doctrine of "capable of repetition, yet evading review,"
however, the likelihood of the issue recurring must be greater than mere speculation. Super Tire
Engineering Co v McCorkle, 416 US 115, 123; 94 S Ct 1694; 40 L Ed 2d 1 (1974). The
appropriate test is "'whether the facts alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal interests, of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.'" Id. at 122, quoting Maryland
Casualty Co v Pacific Coal & Oil Co, 312 US 270, 273; 61 S Ct 510; 85 L Ed 826 (1941).
Appellant points out in its brief on appeal that a due process hearing, a state level
administrative appeal, and a subsequent civil action could cost it tens of thousands of dollars.
Rather than incur these costs, appellant chose to pay for D.G.'s IEE and then bring an action in
the circuit court for declaratory relief. By opting to pay for D.G.'s IEE and to forgo the due
process hearing set out in 1999 AC, R 340.1724,1 appellant has voluntarily removed the
immediacy and reality from its claim that would give this Court the power to decide this issue.
In so finding, I echo the majority that this Court may not "decide moot questions in the guise of
giving declaratory relief." Dep't of Social Services v Emmanuel Baptist Preschool, 434 Mich
380, 470; 455 NW2d 1 (1990) (opinion of Boyle, J.).
If appellant wanted a full review of whether 1999 AC, R 340.1723c2 required it to
provide D.G. with an IEE at public expense, it should not have voluntarily paid for the IEE.
Rule 340.1723c(2) gave appellant the option of requesting a due process hearing to
administratively review its claims. Instead, appellant made a calculated business decision that
requesting the due process hearing was not financially worthwhile and chose to pay the $125 for
the IEE. Appellant cannot voluntarily settle its claims, bypass administrative review of the
Michigan Department of Education's determination, and then seek redress from the courts to
settle potential future claims.
I would dismiss appellant's appeal as moot.
/s/ Michael J. Talbot
1
As amended, effective June 6, 2002; available at <http://www.michigan.gov/orr> (accessed
April 28, 2005).
2
As amended, effective June 6, 2002; available at <http://www.michigan.gov/orr> (accessed
April 28, 2005).
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