This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Constance Marie Jahnke, et al.,



Independent School District #21,


Monica Weets, et al., intervenors,


Filed April 20, 1999

Appeal dismissed

Schumacher, Judge

Becker County District Court

File No. C098958

Brad A. Sinclair, Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., 10 Roberts Street, Post Office Box 6017, Fargo, ND 58108-6017 (for respondents Jahnke et al.)

John M. Roszak, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent ISD #21)

Zenas Baer, Zenas Baer and Associates, 331 Sixth Street, Box 249, Hawley, MN 56549 (for appellants)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.



Appellants Monica Weets, Douglas Sletmoen, Michael Lage, Individually, and as Elected Members of Independent School District #21, and Paul J. Schmidt and George Kohn, Individually, and as Spokespersons for Concerned Citizens, an Unincorporated Organization, challenge the district court's order denying their motion to intervene and the district court's order to proceed to a public vote on the proposed consolidation of respondent Independent School District No. 21 (Audubon, Minnesota), through its Board of Education, and Independent School District No. 24. Appellants argue that the district court erroneously determined that their motion to intervene was moot and that the district court did not have jurisdiction to issue an order to proceed to election. Because the two school districts have since approved consolidation by a public vote, we find the case moot and dismiss the appeal.


For the 1989-90 school year, ISD #21 and ISD #24 entered into an Inter-district Cooperation Agreement pursuant to Minn. Stat. §§ 122.541 and 471.59 (1988). Under the cooperation agreement, which since has been renewed on an annual basis, ISD #21 operated schools for children in grades K-6 from both districts and ISD #24 operated the school for children in grades 7-12 residing in both districts.

In November 1995, both school districts voted to put the issue of school district consolidation to a public vote. The ISD #21 voters rejected the consolidation plan and voted to continue the cooperation agreement. The consolidation issue was again put to a public vote in May 1996, and the ISD #21 voters again rejected the consolidation plan.

In February 1998, the Becker County Auditor submitted a consolidation plat to the Commissioner of Children, Families and Learning. The commissioner notified the superintendent of the school districts that a public hearing would be held on May 6, 1998, regarding the consolidation proposal. After receiving public input at the hearing, an administrative law judge issued an opinion recommending that the Department of Children, Families and Learning approve the consolidation proposal. Following that recommendation, the commissioner approved the proposed consolidation. By virtue of a 3-3 voting deadlock, however, the six-member ISD #21 school board defeated a resolution to put the issue of consolidation to a public vote. In contrast, the ISD #24 school board approved a resolution to put the issue to a public vote.

After the ISD #21 school board's resolution was defeated, respondents Constance Marie Jahnke, Richard Craig Ellsworth, Deborah Lee Brakefield, and YES FOR CONSOLIDATION, a non-profit corporation, filed petitions for certiorari and a writ of mandamus in district court, requesting an order requiring a public vote on the issue of consolidation. Respondents claim the school board's refusal to put the issue to a public vote was arbitrary and capricious. The ISD #21 school board did not contest the petition.

On September 11, 1998, the district court ordered a public vote on the issue of consolidation. Finding that ISD #21 did not maintain a secondary school under the cooperation agreement and citing Minn. Stat. § 122.23, subd. 8 as providing that only a school board that maintains a secondary school in the proposed district has the authority to adopt or reject a proposed consolidation, the district court determined that the ISD #21 school board could not validly vote to reject the consolidation plan. Because of ISD #24's approval to put the issue to a public vote, the district court ordered the election.

On September 14, 1998, appellants moved to intervene as a matter of right and filed a response to respondents' petition. Finding that an award of effective relief was impossible, the district court denied appellants' motion to intervene as moot. The district court denied appellants' request to make a factual record or present legal arguments regarding the "secondary school" issue and did not issue the writ of mandamus sought by respondents. On October 8, 1998, appellants filed a notice of appeal. That same day, appellants moved the district court to stay its order pending the appeal. The district court issued an order denying that motion on October 22, 1998.

Pursuant to the district court's order, a public vote on the proposed consolidation was conducted on November 3, 1998. The proposal passed in both ISD #21 and ISD #24. The districts are scheduled to consolidate on July 1, 1999.


Appellants contend the district court improperly determined that ISD #21 did not have the authority to approve or reject the proposed school district consolidation. In this litigation, the ultimate relief sought by appellants is the restoration of the Audubon School Board's authority to approve or reject consolidation and the invalidation of the public election approving consolidation.

This court will hear only live controversies and will not issue advisory opinions. In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984). When an appeal is pending, if an event occurs that makes a decision on the merits unnecessary or an award of effective relief impossible, the appeal should be dismissed as moot. Weber v. Albrecht, 437 N.W.2d 77, 80 (Minn. App. 1989). Because the voters of both Audubon and Lake Park have approved consolidation, neither this court nor the district court can grant effective relief and the case is moot. See Sprenger v. Jacobs, 305 N.W.2d 747, 748 (Minn. 1981) (holding that appeal should be dismissed where decision on merits would accomplish nothing).

The record reveals that the principal responsibility for the untimely consideration of this appeal lies with appellants because they failed to exhaust all means to resolve the dispute prior to the election. After the trial court denied their motion on October 22, 1998, appellants could have immediately sought a stay from this court. See Minn. R. Civ. App. P. 108.01, subd. 1 ("Upon motion, the appellate court may review the trial court's determination as to whether a stay is appropriate and the terms of any stay."). Although the amendments to Minn. R. Civ. App. P. 108 were not effective until January 1, 1999, the rule's new language reflects the relevant case law prior to that date. See Volkmann Constr., Inc. v. Isaacs, 428 N.W.2d 875, 876-77 (Minn. App. 1988). Respondents would have been required to respond within five working days and appellants would have been allowed two days to reply. Minn. R. Civ. App. P. 127. If appellants had expediently moved the trial court and this court to stay the election, we could have considered the motion before a public vote on consolidation was conducted.

Because of our ruling, we do not reach the issue of the district court's denial of the request to conduct an evidentiary hearing.

Appeal dismissed.