This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Wayne D. Shipley,


Independent School District 197
a/k/a Mendota Heights School District, et al.,


Filed January 23, 2007


Wright, Judge


Dakota County District Court

File No. C4-05-9705



Philip G. Villaume, Jeffrey D. Schiek, Villaume & Schiek, 2051 Killebrew Drive, Suite 611, Bloomington, MN  55424 (for appellant)


Margaret A. Skelton, Jennifer J. Kruckeberg, Sonya J. Guggemos, Ratwik, Roszak & Maloney, 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN  55402 (for respondents)



            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Wright, Judge.



U N P U B L I S H E D  O P I N I O N




Appellant challenges the district court’s dismissal of his claims against respondents for lack of subject-matter jurisdiction.  Appellant argues that, because he does not challenge the nonrenewel of his probationary employment, but rather is alleging that respondents violated statutory obligations and school district policies, the district court has subject-matter jurisdiction over his claims.  We affirm.



            Appellant Wayne Shipley, who was employed as a probationary teacher by Independent School District 197 (school district), taught at Henry Sibley High School during the 2002-2003 and 2003-2004 school years.  Shipley’s contract was not renewed; and on May 17, 2004, the school board adopted a resolution to terminate Shipley’s employment effective June 10, 2004.  Through his union, Shipley filed a series of grievances, which the school board denied. 

On October 3, 2005, Shipley initiated a lawsuit against the school district, a school board member, the superintendent, the Henry Sibley High School principal, and two assistant principals (collectively respondents).  The complaint alleged negligence per se, negligence, breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, and respondeat superior. 

On October 24, 2005, respondents moved to dismiss Shipley’s claim, arguing that the district court lacked subject-matter jurisdiction because the only means of challenging the employment decisions were by submitting Shipley’s grievance to arbitration as required under the collective-bargaining agreement or by writ of certiorari to the court of appeals.  Respondents also argued that Shipley failed to state a claim on which relief can be granted.  On February 7, 2006, the district court dismissed the claims for lack of subject-matter jurisdiction and entered judgment for respondents.  This appeal followed.


With limited exceptions, the exclusive means for obtaining review of a school board’s decision on teacher-related matters is by writ of certiorari to the court of appeals.  Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 673 (Minn. 1990); see Minn. Stat. § 606.01 (2004) (providing that party seeking review of proceeding by writ of certiorari to court of appeals must apply for and obtain writ within 60 days of notice of the proceeding to be reviewed).  This rule of law is founded on the constitutional principle of separation of governmental powers, which dictates that the judiciary must refrain from de novo review of school board and other administrative decisions.  Dokmo, 459 N.W.2d at 674-75 (stating that consistent with judiciary’s limited review of administrative bodies, appellate courts will reverse school board decision only if it is “fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law”). 

Relying on Dokmo, the district court determined that it did not have subject-matter jurisdiction over Shipley’s claims against the school district.  Whether subject-matter jurisdiction exists is a question of law, which we review de novo.  Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999).

            Shipley argues that the district court erred by determining that it lacked subject-matter jurisdiction over his claims because he is not challenging the school board’s decision not to renew his contract.  Rather, he is alleging that the evaluation of his job performance was untimely and contrary to Minn. Stat. § 122A.40 (2004) and school district policies.  “The school board must adopt a plan for written evaluation of teachers during the probationary period.”  Minn. Stat. § 122A.40, subd. 5(a).  Evaluation of probationary teachers “must occur at least three times each year for [those] performing services on 120 or more school days.”  Id. 

A well-established exception to the Dokmo rule exists when a statute expressly authorizes a civil action in district court.  See, e.g., Minn. Stat. § 363A.33 (2004) (Minnesota Human Rights Act).  Under this circumstance, review of an administrative action is not limited to a certiorari appeal.  Willis v. County of Sherburne, 555 N.W.2d 277, 281-83 (Minn. 1996).  But section 122A.40 does not provide for a cause of action in district court.  Indeed, in a certiorari appeal alleging that a school district failed to comply with the evaluation provisions in section 122A.40, subdivision 5(a), we held that the school district’s failure to fully comply with the statute does not necessarily affect a school board’s discretion to decide not to renew a probationary teacher’s contract because the statutory provisions, which do not state consequences for a district’s failure to comply, are merely directory.  Savre v. Indep. Sch. Dist. No. 283, 642 N.W.2d 467, 471-72 (Minn. App. 2002) (stating that when school district substantially complies with evaluation provisions, interference with decision not to renew probationary teacher’s contract is unwarranted); see Minn. Stat. § 122A.40, subd. 5(a) (“[D]uring the probationary period any annual contract with any teacher may or may not be renewed as the school board shall see fit.”).

Shipley’s reliance on Manteuffel v. City of N. St. Paul, 538 N.W.2d 727, 731 (Minn. App. 1995), to support his claim of error is misplaced.  Manteuffel involved alleged violations of the Whistleblower Act, which specifically authorizes a civil action.  See Minn. Stat. § 181.935(a) (2004) (providing that person injured by violation of section 181.932 (Whistleblower Act) may bring civil action).  Because section 122A.40 does not expressly authorize a civil action in district court, Shipley’s only means to challenge the school board’s alleged noncompliance with section 122A.40 is by writ of certiorari to the court of appeals.  As in Savre, had Shipley filed a timely writ of certiorari, the court of appeals could have considered Shipley’s allegations of noncompliance with the statute’s evaluation provisions when considering whether the school board acted within its discretion when it discharged Shipley. 

Shipley contends that his only means of challenging the school district’s actions was to file a complaint in district court because the school board cannot “fairly adjudicate the propriety of [its] own conduct,” and the opportunity to pursue discovery is unavailable in a certiorari appeal.  This argument is unavailing for two reasons.  First, in a certiorari appeal, it is the court of appeals, not the school board, that reviews the conduct of school district officials and employees.  Dokmo, 459 N.W.2d at 673.  Second, although discovery is not available, id. at 677, a certiorari appeal does not foreclose the creation of a record sufficient for appellate review, id. at 675-76.   

An employee may bring common-law tort claims against an administrative body in district court if the claim is “separate and distinct” from the termination of employment, and resolution of the claim will not involve any inquiry into the administrative body’s discretionary decision to terminate the employee.  Willis, 555 N.W.2d at 282-83.  Shipley argues that he alleged claims for negligence per se, negligence, breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, and respondeat superior, not for wrongful termination.  Because inquiry into these claims does not involve an inquiry into respondents’ decision not to renew his contract, Shipley argues, the district court has jurisdiction to hear those claims. 

Shipley’s complaint, however, does not allege any facts to support his tort claims.  Rather, the entire fact section of the complaint describes respondents’ alleged failure to comply with statutory and policy requirements for evaluating Shipley’s performance as a probationary teacher.  And Shipley’s claimed damages, which include his lost earnings, bonuses, and job benefits, and the prayer for relief establish that he is challenging nothing other than his termination. 

Citing Lee v. Regents of Univ. of Minn., 672 N.W.2d 366 (Minn. App. 2003), Shipley maintains that the district court has subject-matter jurisdiction over his breach‑of‑contract claim.  But Lee is inapposite because it involved statutory claims over which the district court has jurisdiction and a breach-of-contract claim based on the university’s noncompliance with a grievance panel’s order.  Lee, 672 N.W.2d at 371.  The breach-of-contract claim in Lee was not premised on the university’s decision to terminate Lee’s employment.  Id.  When, as here, a former employee’s breach-of-contract claim is based on the executive body’s decision to discharge the employee, “it will be viewed as a wrongful employment termination claim for jurisdictional purposes and certiorari is the exclusive remedy for judicial review of that claim.”  Tischer v. Hous. & Redev. Auth. of Cambridge, 693 N.W.2d 426, 432 (Minn. 2005); see Willis, 555 N.W.2d at 282 (stating that when alleged breach of employment contract results in termination of employment by executive body, writ of certiorari is only method of obtaining review of that action). 

Because Shipley fails to cite any authority in support of his argument that the other tort claims were properly before the district court, we decline to address this contention.  See City of Cloquet v. Cloquet Sand & Gravel, Inc., 312 Minn. 277, 279 n.1, 251 N.W.2d 642, 644 n.1 (1977) (declining to consider issue when party provided only minimal explanation of contention on appeal and cited no supporting authority); In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1995) (stating that issues not adequately argued or briefed on appeal are deemed waived), review denied (Minn. May 16, 1995).  And to the extent that Shipley addresses these claims in his reply brief, we decline to consider arguments raised for the first time in reply.  See Braith v. Fischer, 632 N.W.2d 716, 724 (Minn. App. 2001) (stating that arguments raised for first time in reply brief are not properly before us), review denied (Minn. Oct. 24, 2001).

Because the exclusive means for obtaining review of respondents’ actions as alleged in the complaint was by writ of certiorari to the court of appeals, the district court’s dismissal of the action for lack of subject-matter jurisdiction was proper.