Opinion
No. 60059-1-I.
May 27, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-27269-2, Nicole Maclnnes, J., entered April 25, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Cox and Lau, JJ.
The trial court dismissed Rose Sanders' challenge to the closure of certain Seattle schools for lack of standing. Sanders appeals, contending that her residency adjacent to one of the schools slated for closure, and legal custody of a minor child who may attend one of the schools grants her standing. She also claims that her assertion of procedural rights allows for standing without meeting the usual standards for redressability and immediacy. We affirm the dismissal for lack of standing.
Facts
On June 26, 2006, Seattle School District No. 1 authorized the closure of several Seattle schools. Rainier View elementary school was one of thoseschools slated for closure.
Rose Sanders has legal custody of four-year-old G.G.M. and owns a home approximately 100 yards from Rainier View. The school's playfield is across the street from her home and G.G.M. regularly plays there. Sanders filed suit against the District, challenging the closure decision on behalf of herself and G.G.M. She requests the court enjoin the District from implementing the school closures — specifically the closure of Rainier View elementary school — and order the District to comply with the statutory requirements for school closures. After removal of the case to federal court and its subsequent return to state court, the case was dismissed for lack of standing. Sanders appeals.
Discussion
I. Request for Judicial Notice and Motion to Strike
The District argues for the first time on appeal that regardless of standing, Sanders' case has become moot because Rainier View closed on June 22, 2007. The District requests that this court take judicial notice of the closure and consider this new evidence on appeal. Sanders' reply brief includes a motion to strike this portion of the District's briefing claiming that the District provided no basis for judicial notice and failed to comply with RAP 9.11. We decline both the motion to strike and the invitation to take judicial notice of the closure of Rainier View. Instead, we address the merits of the standing issue.
II. Standing
Sanders filed suit under RCW 28A.645.010, which provides that "[a]nyperson, or persons, either severally or collectively, aggrieved by any decision or order of any school official or board . . . may appeal the same to the superior court of the county in which the school district or part thereof is situated." She claimed that the District failed to follow the procedural requirements of RCW 28A.335.020 and School Board Policy H01.00. According to Sanders, the District failed to provide for timely notice of the School Board's consideration of Rainier View for closure and analysis of the impact. The trial court dismissed her claim on summary judgment for lack of standing. Appellate courts review summary judgment de novo. Allan v. University of Wash., 92 Wn. App. 31, 35, 959 P.2d 1184 (1998). Sanders bears the burden of establishing standing.Id.
Sanders asserts that she has standing to challenge the District's procedural failings because she has a direct stake in the fate of Rainier View; she has an interest in having G.G.M. attend the school near his home, and the closure could adversely affect her property value and neighborhood. The District counters that these harms remain speculative and should not satisfy the injury-in-fact requirement.
Under the school board appeal statute, a person "aggrieved by" a decision of the school board may appeal. RCW 28A.645.010. The District contends that Coughlin v. Seattle School District No. 1, 27 Wn. App. 888, 621 P.2d 183 (1980), provides the standard for determining whether a person is aggrieved and has standing to appeal. In Coughlin, the appellant alleged that the school district prepared an inadequate environmental impact statement forthe closure of five elementary schools and sought review of the deficiency under both the statutory writs procedure and the school board appeal statute, former RCW 28A.88.010 (now RCW 28A.645.010).Id. at 890-92. This court expressly declined to consider the appeal under the school board appeal statute and the various writs, relying instead on the court's inherent and constitutional judicial review power. Id. at 893 (citing Leschi Improvement Council v. State Highway Comm'n, 84 Wn.2d 271, 525 P.2d 774 (1974)). The standing requirement for reviewing the adequacy of the EIS "requires the plaintiff to allege and prove facts that show a direct adverse effect on her from the proposed action." Coughlin, 27 Wn. App. at 893. These allegations and proof must include "injury in fact," or "a perceptible present or future harm caused by the challenged action." Id. at 894 (citing Save a Valuable Environment v. Bothell, 89 Wn.2d 862, 576 P.2d 401 (1978)). Coughlin asserted standing to challenge school closures because of her residency in the school district, long history of participation in school planning, and concerns that the closure created new policy that could affect her neighborhood schools. Id. at 891. The court concluded that the injury in fact requirement precluded standing because the harm was too remote. Id. at 894.
Sanders correctly argues that the court did not decide Coughlin under the school board appeals statute. That statute requires the plaintiff be aggrieved. The ordinary meaning of aggrieved is "showing grief, injury, or offense" and "suffering from an infringement or denial of legal rights." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 41 (1969). The Washington Supreme Court has adopted a similar definition. An "aggrieved party" is "one whose personal right or pecuniary interests have been affected." State v. Taylor, 150 Wn.2d 599, 603, 80 P.3d 605 (2003) (citing State ex rel. Simeon v. Superior Court, 20 Wn.2d 88, 90, 145 P.2d 1017 (1944)). Thus, a party must experience actual injury to their rights or interests before they are aggrieved. Therefore, we believe the injury in fact test applied in Coughlin should also be applied to those plaintiffs seeking to bring suit under RCW 28A.645.010. Sanders must show a perceptible present or future harm caused by the school board decision to close Rainier View and the other schools. She has not proven such harm.
First, the Supreme Court has explicitly rejected any interest in a student's attendance of a specific school. "We find no authority in law for the proposition that parents have a vested right to send their children to, or that children have a vested right to attend, any particular public school." Citizens Against Mandatory Bussing v. Palmason, 80 Wn.2d 445, 453, 495 P.2d 657 (1972). Second, the school district policy in effect did not purport to create such a right. The Manager of Enrollment and Planning Services submitted a declaration saying that the District uses an "Open-Choice" assignment plan, which "means that no student is necessarily going to attend the school closest to where they live, nor are they guaranteed attendance at any particular school when they first seek enrollment in the District." Sanders produced no evidence to contradict the District's evidence. Third, G.G.M. was not yet a student in the school district. G.G.M's attendance of Rainier View is speculative. G.G.M's desired attendance of Rainier View is not a present interest and does not confer standing. Finally, while Sanders expresses her concerns about her neighborhood and property value, she provides no evidence of any loss of property value. Without a prima facie demonstration of a decrease in property value, the potential for impact on the neighborhood and her property's value is speculative. Sanders' claimed injuries are too conjectural and hypothetical to establish that she is an aggrieved person entitled to standing under this statute.
Finally, Sanders also argues that she has a procedural right that she can assert without meeting the normal standards of redressability and immediacy. Our Supreme Court has said, "[f]ailure to comply with procedure requirements of itself establishes sufficient injury to confer standing." Seattle Bldg. Constr. Trades Council v. Apprenticeship Training Council, 129 Wn.2d 787, 794, 920 P.2d 581 (1996). But, Sanders ignores the language of Trades Council, which says that the Supreme Court has rejected "the premise that one with no concrete interest could assert such procedural rights." Id. at 795 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 572, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). A party has standing based on these procedure rights if he or she has a concrete interest that would be protected by the procedural requirements. As seen above, Sanders has not shown a concrete interest — only interests based on speculation. Thus, she cannot gain standing through asserting procedural rights. Sanders has not asserted a vested interest or direct and concrete harm. She is not an aggrieved person for the purposes of the school board appealstatute. We affirm the trial court's determination that she lacks standing to challenge the school closures.
WE CONCUR: