This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1585
A06-2045

Village School of Northfield,

Relator (A06-1585),

Appellant (A06-2045),

vs.

Independent School District #659,

Respondent,

Commissioner of the Minnesota Department of Education,

Respondent.

Filed July 31, 2007

Affirmed; motion denied

Halbrooks, Judge

Concurring specially, Lansing, Judge

Minnesota Department of Education

Jack Y. Perry, John A. Cairns, Craig R. Baune, Briggs and Morgan, P.A., 2200 IDS Center, Minneapolis, MN 55402 (for appellant)

Ann R. Goering, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent ISD #659)

Lori Swanson, Attorney General, Kathryn M. Woodruff, Assistant Attorney General, 1200 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Education)

Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

In this consolidated appeal, appellant, a charter school, challenges the Commissioner of the Minnesota Department of Education’s decision to affirm the school district’s nonrenewal of appellant’s sponsorship agreement. Appellant argues that: (1) the commissioner acted arbitrarily in affirming the school district’s nonrenewal decision because the school district failed to issue contemporaneous written findings of fact or a statement of the reasons for its nonrenewal decision; (2) the matter should be remanded to the school district for a determination of its reasons for nonrenewal with interim contract reinstatement; and (3) the district court erred in dismissing the school’s petition for mandamus. Appellant also moves this court to strike portions of respondents’ briefs on the ground that they refer to matters outside of the record. Because the commissioner’s decision is supported by substantial evidence in the record and is not arbitrary or capricious, we affirm. Because the documents referred to in appellant’s motion to strike are part of the record, we deny the motion.

FACTS

The Village School of Northfield[1] (the school) was first chartered in 1997. The Northfield Public School District (the school district) has sponsored the school since 1997 with a series of contracts, the last one encompassing the time frame of July 1, 2003, through June 30, 2006. All of the contracts set performance and progress requirements and indicated that failure to meet these requirements could result in nonrenewal of sponsorship. The school had approximately 55 students in the 2005-06 academic year.

In 2002, the United States Congress enacted the No Child Left Behind Act (NCLB), which requires enhanced academic assessment and accountability for student performance. One of the requirements of the act is that the adequate yearly progress (AYP) of each public school is to be measured using state assessments. If a school fails to make AYP, the school district and the Minnesota Department of Education (MDE) must impose specific consequences.

The school failed to make AYP for both the 2003-04 and 2004-05 academic years for reading, math, and attendance. In addition, the school was rated one star on a five-star scale for both reading and math in 2005.

In January 2006, several organizations, including the MDE, the Minnesota Sponsor Assistance Network (MSAN), and the Minnesota Department of Public Safety (DPS), performed site reviews and issued reports on the school’s status. The MDE’s report noted that instruction plans were individualized for students but that the school “did not appear to have current and appropriate instructional materials available to the students.” The report further noted the lack of a licensed social-studies teacher and qualified community expert. The MSAN report recommended renewal of sponsorship on a one-year basis, to be followed by a three-year contract if the school fulfilled certain conditions, including embedding required learning standards in the curriculum, implementing a system to monitor Minnesota standards alignment with instruction, establishing a plan to upgrade the technology systems, and developing a plan for fiscal viability for the subsequent three years, among others.

Under Minn. Stat. § 124D.10, subd. 23(b), a sponsor of a charter school has the authority to not renew a sponsorship contract at the end of a specified term for any of the following reasons:

(1) failure to meet the requirements for pupil performance contained in the contract;

(2) failure to meet generally accepted standards of fiscal management;

(3) violations of law; or

(4) other good cause shown.

Furthermore,

At least 60 days before not renewing or terminating a contract, the sponsor shall notify the board of directors of the charter school of the proposed action in writing. The notice shall state the grounds for the proposed action in reasonable detail and that the charter school’s board of directors may request in writing an informal hearing before the sponsor within 14 days of receiving notice of nonrenewal or termination of the contract.

Minn. Stat. § 124D.10, subd. 23(a).

In correspondence dated March 24, 2006, L. Chris Richardson, Ph.D., Superintendent of the Northfield Public School District, provided the school’s board of directors with a notice of proposed nonrenewal of the contract. While Dr. Richardson noted that the MDE’s formal presentation of its external visitation report was not scheduled until April 10, 2006, a decision to delay the nonrenewal notice under Minn. Stat. § 124D.10, subd. 23, would preclude the district from nonrenewal for the following academic year for failure to meet the 60-day-notice requirement. Dr. Richardson identified the following grounds for the proposed nonrenewal:

1. Failure to meet the requirements for pupil performance contained in the contract – Section 6.1 of the contract indicates that one of the charter school’s performance indicators is “students are demonstrating successful progress at meeting or exceeding the Minnesota Graduation Standards in accordance with the Commissioner’s guidelines (section 124D.10 subd. 10) and meeting or exceeding standards, assessments and accountability requirements of the 2002 reauthorization of ESEA, the No Child Left Behind Act, including new Minnesota Academic Standards and Assessments in Reading and Math (grades 3-8) and Science (3-12) as they are developed and implemented.” The State Report Card published by the MDE indicates that the Village School received 1 star in reading and 1 star in math out of 5 stars possible and that the school had not made adequate yearly progress (AYP) for two or more years. The Report Card also documented that federal and state standards for attendance, graduation rate and dropout rate were not met by the Village School. Attendance rates averaged 80% and the graduation rate was only 59% in the school.

Section 6.3 of the contract indicates that “The Village School of Northfield has identified the specific and measurable outcomes pupils are expected to achieve. Students’ progress in achieving these goals will be assessed using pre-and-post-assessment inventories.” Pre and post inventories of student’s progress in meeting the Village School’s goals showed large percentages of K-12 students not making progress in addressing the following goals:

· 28% of the students made no progress in “inquiry”

· 54% of the students made no progress in “world view”

· 34% of the students made no progress in “taking care of ourselves”

· 38% of the students made no progress in “taking care of one another”

2. Violations of law – We have received a number of reports from the Northfield Police Department concerning student behavior at the school, in the parking lot and on the streets around the school and in commercial establishments located in close proximity to the school. Both the Chief of Police and the School Liaison Officer have shared concerns about smoking and drug use on school property, trespassing and damage to neighboring property, violent behavior, as well as the lack of adult supervision and “unrestricted comings and goings of students of various ages that puts students at risk.” Survey data by the Village School reinforces the increased tobacco and drug usage among students. The Minnesota Department of Education and the State Fire Marshall also have identified violations of safety codes requiring immediate attention.

3. Other good cause – The Minnesota Department of Education Site Visit Review identified a number of concerns with curriculum and instruction. In the MDE Site Review, they indicated that there is no standard curriculum, content outcomes, scope and sequence, evidence of standards being imbedded into the curriculum, or any type of curriculum planning. During the visit, MDE noted that students were not receiving any formal instruction and students were allowed to play a video game of a violent nature to promote “social interaction.” The lack of instructional materials and technology were also identified as concerns by MDE. The MDE was also concerned about the validity of student assessment and the needs for professional development especially in light of the lack of licensed teachers in some areas. The Northfield School District would concur with the concerns expressed by the MDE Team.

The school submitted a written response and argued, among other things, that “tension” existed between the standardized performance requirements and “the school’s mission and vision.” At the school’s request, the school district held an informal hearing before the school board to determine whether to renew its sponsorship. On May 30, 2006, the last day of classes for the year, the school board voted 5-2 in favor of nonrenewal. On June 30, 2006, the sponsorship agreement terminated.

The school appealed the nonrenewal decision to the Commissioner of the MDE. Following a review of the record, the commissioner determined that the school district complied with the statutory requirements of Minn. Stat. § 124D.10, subd. 23, with respect to its decision not to renew the sponsorship. The commissioner therefore affirmed the decision. The school then filed a certiorari appeal of the commissioner’s decision in this court.

The school also petitioned the district court for a writ of mandamus, arguing that the school district and the commissioner acted arbitrarily and capriciously. The district court ordered the school district and the commissioner to appear and show cause for the nonrenewal decision and the subsequent affirmation. Following the hearing, the district court determined that because the nonrenewal decision was quasi-judicial in nature, it lacked jurisdiction to review the commissioner’s decision. As a result, the district court dismissed the school’s petition for mandamus.

This consolidated appeal follows.

D E C I S I O N

The school argues that the commissioner acted arbitrarily in affirming the nonrenewal decision. An administrative agency is “a creature of statute,” and its function is governed by the legislature. Peoples Natural Gas Co. v. Minn. Pub. Utils. Comm’n, 369 N.W.2d 530, 534 (Minn. 1985). Therefore, administrative decisions are generally presumed correct and are given a narrow scope of review. Reserve Mining Co. v. Minn. Pollution Control Agency, 364 N.W.2d 411, 414-15 (Minn. App. 1985), review dismissed (Minn. June 10, 1985).

In reviewing the commissioner’s decision, this court

may affirm the decision . . . or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the [school] may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are: (a) in violation of constitutional provisions; or (b) in excess of the statutory authority or jurisdiction of the agency; or (c) made upon unlawful procedure; or (d) affected by other error of law; or (e) unsupported by substantial evidence in view of the entire record as submitted; or (f) arbitrary or capricious.

Minn. Stat. § 14.69 (2006); In re Expulsion of Z.K., 695 N.W.2d 656, 660 (Minn. App. 2005) (applying Minn. Stat. § 14.69 to review the commissioner’s affirmation of a school board’s expulsion decision). The record in this type of case includes any required notices that are involved, any proposals that are considered, any recommendations to the school board, and any reasons for the board’s actions. Dokmo v. Indep. Sch. Dist. No. 11, Anoka-Hennepin, 459 N.W.2d 671, 675-76 (Minn. 1990).

Here, the commissioner reviewed the entire record, including several site-review reports, police reports, school-performance ratings, and the school district’s notice of proposed nonrenewal. The commissioner found that the school failed to meet the pupil-performance requirements set forth in the sponsorship contract, failed to comply with state and federal standards, failed to meet proficiency standards in math and reading, did not meet attendance requirements, and lacked an adequate curriculum or plan to correct these deficiencies. The commissioner also found that there were significant safety issues in the school, including fire-code violations, drug and alcohol use, and disorderly conduct. The commissioner concluded that the school district’s reasons for nonrenewal were valid.

The commissioner determined that throughout the nonrenewal process, “[t]he School District provided adequate information for its non-renewal decision.” The commissioner also noted that the school failed to properly respond to poor student performance and failed to provide evidence showing that the school was in compliance with state and federal standards. Therefore, the commissioner concluded that the school district “met the statutory requirements . . . with respect to its decision not to renew its sponsorship contract with Village School,” and the commissioner affirmed that decision.

The school does not directly challenge the commissioner’s factual findings or conclusions. Instead, the school argues that the commissioner acted arbitrarily in affirming the school district’s nonrenewal decision because the school district failed to issue “contemporaneous written findings of fact or a statement of the reasons” for its decision on May 30, 2006. Thus, the school argues that the commissioner “failed to enforce on appeal [the school district’s] compliance with this clear duty.” But the school concedes that this “clear duty” is “judicially imposed” and is not found in Minn. Stat. § 124D.10 (2006), which governs the creation, operation, and closure of charter schools.

Minn. Stat. § 124D.10, subd. 23(a), provides, in pertinent part, that

[a]t least 60 days before not renewing or terminating a contract, the sponsor shall notify the . . . charter school of the proposed action in writing. The notice shall state the grounds for the proposed action in reasonable detail and that the charter school[] . . . may request in writing an informal hearing before the sponsor within 14 days of receiving notice of nonrenewal or termination of the contract. Failure by the [school] to make a written request for a hearing within the 14-day period shall be treated as acquiescence to the proposed action. Upon receiving a timely written request for a hearing, the sponsor shall give reasonable notice to the charter school[] . . . of the hearing date. The sponsor shall conduct an informal hearing before taking final action. The sponsor shall take final action to renew or not renew a contract by the last day of classes in the school year. . . . [The school] may appeal the sponsor’s decision to the commissioner.

The school concedes that the school district fully complied with section 124D.10, and it concedes that the duty to provide contemporaneous findings is not found in the statute. Nonetheless, the school argues that the school district failed in its “judicially created” duty to issue contemporaneous findings and reasons for its decision.

In support of its argument, the school relies on Minn. Transitions Charter Sch. v. Minn. Dep’t of Educ., No. A04-1367, 2004 WL 1049269 (Minn. App. May 11, 2004), an unpublished opinion. This court’s unpublished opinions are not binding precedent. Minn. Stat. § 480A.08, subd. 3 (2006). Regardless, Minn. Transitions is distinguishable.

In Minn. Transitions, MDE, acting as an initial fact-finder, determined that a charter school received overpayments of education aid from the state. 2004 WL 1049269, at *1. This court applied a standard of review that is almost identical to the standard discussed above. Id. at *3. But we found that MDE had failed to provide a contemporaneous explanation for its decision and, more importantly, that the record was either silent or unreliable when attempting to review on appeal the bases for MDE’s decision. Id. at *4. Therefore, we concluded that a remand was necessary “for the development of a more complete record and for MDE to make sufficient findings based on the record to permit appellate review.” Id.

Here, by contrast, we are reviewing the commissioner’s decision as a reviewing entity, not as an initial fact-finder. The school is asking this court to disregard the commissioner’s decision and focus solely on the school district’s failure to make findings that were contemporaneous with its nonrenewal decision on May 30, 2006. But that is not the province of this court. See Z.K., 695 N.W.2d at 660-62 (discussing statutory process of appealing a school board’s expulsion decision to the commissioner); Weaver v. Minn. Valley Labs., Inc., 470 N.W.2d 131, 133-34 (Minn. App. 1991) (holding that in unemployment-benefit cases, this court reviews the decision of the commissioner’s representative, rather than that of the initial referee); Bloomquist v. Comm’r of Natural Res., 704 N.W.2d 184, 190 (Minn. App. 2005) (reviewing and upholding the commissioner’s factual findings and conclusions, not the original administrative-law judge’s decision).

As Minn. Stat. § 124D.10 provides, the commissioner is required to review the school district’s decision and determine whether it is in compliance with the statute. The commissioner’s decision cites extensive reasons for affirming the nonrenewal decision based on a record that is, as the school concedes, “voluminous.” Therefore, we conclude that the commissioner did not act arbitrarily in affirming the nonrenewal decision.

The school cites several zoning and land-use cases to support its argument that the commissioner acted arbitrarily. But many of those cases involve a statutory scheme that requires contemporaneous written reasons for the denial of a land-use request. See Minn. Stat. § 15.99, subd. 2(c) (2006). And, as in Minn. Transitions, the reviewing courts had no way to determine whether the agencies had a rational basis for their decisions. See, e.g., Zylka v. City of Crystal, 283 Minn. 192, 198, 167 N.W.2d 45, 50 (1969) (holding that when the agency did not preserve a record of the hearing before it, made no findings of fact, and gave no reasons for its action, there was “no sufficient evidentiary basis for a court to infer that the council’s action was reached upon a consideration of the facts and was based upon reason rather than the mere individual whim of the council members”).

This case is entirely distinguishable. The school district gave the school an extensive listing of its deficiencies, many of which were longstanding in nature, in March 2006. It cannot reasonably be said that the school did not have notice of what needed to be corrected. While the reasons were not restated by the school board in conjunction with its May 30, 2006 decision to not renew the sponsorship, no such requirement is included in Minn. Stat. § 124D.10.

II.

The school argues that this case should be remanded to the school district for a determination of the reasons for its nonrenewal decision and that its sponsorship contract should be reinstated in the interim. To support this argument, the school relies on cases such as Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460 (Minn. 1994), in which appellate courts have employed remand to afford an opportunity to provide findings that are sufficient to enable judicial review of agency decisions. But the Minnesota Supreme Court has stated that such a remand is only necessary “in the rare case” when “the record . . . is so inadequate that judicial review is impossible.” Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 577 (Minn. 2000) (citing Earthburners, 513 N.W.2d at 463). As indicated above, this record is adequate.

The school also argues that the school district must reinstate sponsorship of the school because it failed to act “by the last day of classes” as required by Minn. Stat. § 124D.10, subd. 23(a). But the school board voted and issued its nonrenewal decision on May 30, 2006, the last day of classes for that school year. Thus, the school district complied with the statute, and remand is unnecessary. Further, given the extensive assessment process undertaken by the MDE, the school’s failure to make AYP for two consecutive years, and Dr. Richardson’s detailed outline of the school district’s concerns in his March 24, 2006 letter, it cannot be said that the school lacked an understanding of its deficiencies.

III.

The school contends that the district court erred by dismissing its petition for mandamus because the school met the three mandamus requirements. But the district court did not consider the three requirements for mandamus. Rather, the district court determined that the nonrenewal decision was quasi-judicial in nature and, therefore, dismissed the school’s petition based on lack of subject-matter jurisdiction.

On appeal from dismissal of an action for lack of subject-matter jurisdiction, this court conducts an independent review of the legal issues presented to the district court. Ferrell v. Cross, 543 N.W.2d 111, 114 (Minn. App. 1996), aff’d, 557 N.W.2d 560 (Minn. 1997). A writ of mandamus “shall issue on the information of the party beneficially interested, but it shall not issue in any case where there is a plain, speedy, and adequate remedy in the ordinary course of law.” Minn. Stat. § 586.02 (2006). Certiorari review in this court is generally the exclusive method to challenge a quasi-judicial action because

[u]nless otherwise provided by statute or appellate rule, to obtain judicial review of an administrative agency’s quasi-judicial decision, a party must petition the court of appeals for a writ of certiorari. If no statute or rule expressly vests judicial review in the district court, this court has exclusive certiorari jurisdiction.

Micius v. St. Paul City Council, 524 N.W.2d 521, 522-23 (Minn. App. 1994) (citations omitted); see also Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 519 (Minn. 1983) (holding that quasi-judicial acts by a governing agency are reviewable by writ of certiorari to the court of appeals, and, therefore, a writ of certiorari is the proper form of action for challenging a school district’s decision to close a school).

The school concedes that this case involves a quasi-judicial determination by the school district. Minn. Stat. § 124D.10, subd. 23(a), clearly states that the school’s rights of appeal are limited to a review by the commissioner. Because the commissioner performs a quasi-judicial function in reviewing the school district’s decision, the district court properly concluded that it lacked jurisdiction and dismissed the mandamus petition. Therefore, we need not address the three requirements for mandamus.

IV.

In appeal A06-1585, the school moved to strike respondents’ references to (1) an e-mail exchange between the superintendent and the school board and (2) the district court’s mandamus order. The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.” Minn. R. Civ. App. P. 110.01. Appellate courts strike both references to extra-record material and the extra-record material itself. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001); Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).

The challenged e-mail exchange is included in the commissioner’s file as exhibit 29. Although the district court’s order is not part of the record in the certiorari appeal (A06-1585), it does form the basis of the appeal in A06-2045 and is properly part of the record in that matter. Therefore, we deny the school’s motion to strike.

Affirmed; motion denied.

[1] The school is a charter school governed by Minn. Stat. § 124D.10 (2006).