Sonja D. Kerr, Kerr Law Office, 5972 Cahill Avenue South #110, Inver Grove Heights, MN 55076 (for Relator)

Hubert H. Humphrey, III, Attorney General, Richard L. Varco, Jr., Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2130 (for Respondent)

Considered and decided by Willis, Presiding Judge, Peterson, Judge, and Foley, Judge.[*]

A hearing review officer denied relator Aaron Sullivan's motion to join respondent Commissioner of the Minnesota Department of Children, Families and Learning (MDCFL) as a party to an administrative proceeding regarding Sullivan's entitlement to special education services. As a result of a settlement between Sullivan and the school district responsible for providing him with special education services, the issue does not present a justiciable controversy. We, therefore, dismiss the appeal.

FACTS

Relator Aaron Sullivan is a nine-year-old boy who has dyslexia, a learning disability. During the 1995-96 school year, he received instruction from a licensed special education teacher until she took a leave of absence in November. Sullivan's teacher decided not to return from leave during the school year.

In March, the school district applied for a personnel licensure variance to allow Hope Johnson, a teacher licensed to teach pre-kindergarten and elementary education, to teach learning disabled children. The request stated that the school district needed someone to replace the teacher who was on leave and that the school district had been unable to find a licensed special education teacher to fill the position. MDCFL approved the request until September 1, 1996, at which time the school district would be required to hire a licensed special education teacher.

Sullivan is entitled to receive special education services under the federal Individuals with Disabilities Education Act (IDEA) and under Minnesota law. See 20 U.S.C. §§ 1400-1491o (1994) (IDEA); Minn. Stat. § 120.17 (1994 & Supp. 1995) (special education services required for children with a disability). Sullivan's parents objected to Sullivan being taught by a teacher who was not licensed in special education and requested a local due process hearing under Minn. Stat. § 120.17, subd. 3b(e) (Supp. 1995). The parents requested that the school district provide compensatory education to Sullivan, reimburse tutoring expenses, and assign a teacher with a special education license. Sullivan's parents filed a motion to join MDCFL as a party to the proceeding. The hearing officer denied the motion for joinder.

Sullivan's parents and the school district then entered into a settlement and partial release of claims. The parents agreed to waive specified claims against the school district in exchange for compensatory education by a licensed special education teacher, reimbursement of tutoring and independent assessment costs, and the adoption and implementation of an individualized education program (IEP) for Sullivan. They reserved the issue of joinder and did not waive any claims against MDCFL. Pursuant to the settlement, the hearing officer dismissed the proceeding against the school district.

Sullivan's parents appealed the denial of their joinder motion to a hearing review officer. The hearing review officer affirmed the hearing officer's decision. This appeal followed.

D E C I S I O N

"A prerequisite to adjudication is a justiciable controversy." Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 727 (Minn. App. 1995).

"Among the essentials necessary to the raising of a justiciable controversy is the existence of a genuine conflict in the tangible interests of the opposing litigants. Complainant must prove his possession of a legal interest or right which is capable of and in need of protection from the claims, demands, or objections emanating from a source competent legally to place such legal interest or right in jeopardy."

Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn. 1996) (quoting State ex rel. Smith v. Haveland, 223 Minn. 89, 92, 25 N.W.2d 474, 477 (1946))..

Under Minn. Stat. § 120.17, subd. 3b(e) (Supp. 1995), parents are entitled to a due process hearing before a hearing officer if they object to the proposed provision of special education services for their child. Sullivan's parents requested a due process hearing because they objected to Sullivan being taught by a teacher who was not licensed in special education. As a result of their settlement with the school district, however, Sullivan's parents have no continuing objection to the special education services being provided to Sullivan. The services the school district is required to provide Sullivan under the settlement agreement are intended to compensate him for being taught by a teacher who was not licensed in special education. The variance granted to Johnson expired on September 1, 1996. Sullivan's parents concede that they do not seek any additional compensatory or current special education services for Sullivan.

Sullivan's parents' remaining objection is with MDCFL's authority to grant license variances. Because Sullivan's parents have no continuing objection to the special education services provided to Sullivan, determining whether MDCFL acted properly in granting Johnson a variance would not affect any conflicting interests or legal rights of Sullivan or his parents and the school district or MDCFL. The issue, thus, does not present a justiciable controversy.

Relying on Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592 (1988), Sullivan's parents argue that a justiciable controversy exists because the issue regarding MDCFL's authority to grant license variances is capable of repeating, yet evading review. A party seeking review of a claim capable of repeating, yet evading review, must demonstrate "_a sufficient likelihood that he will again be wronged in a similar way._" Id. at 323, 108 S. Ct. at 604 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S. Ct. 1660, 1670 (1983)). In Honig, a school district indefinitely suspended a student entitled to receive special education services because the student's behavior disrupted the school environment. Id. at 314-15, 108 S. Ct. at 599-600. When the case came before the Supreme Court, no expulsion or suspension proceedings were pending against the student, and the student was still eligible for special education services. Id. at 318, 108 S. Ct. at 601. The Court concluded that if an injunction were lifted, it was sufficiently likely that the student again would face expulsion or indefinite suspension proceedings because the student was unable to control his disruptive behavior, which arose out of his disability, and because the state superintendent of public instruction maintained that local school districts retained unilateral authority to suspend or otherwise remove disabled children for dangerous conduct. Id. at 320-23, 108 S. Ct. at 602-04.

No evidence in the record indicates that (1) Sullivan's teacher's leave of absence resulted from Sullivan's conduct; (2) the school district's request for a variance resulted from Sullivan's conduct; or (3) the school district in the future will seek a variance to allow a teacher who is not licensed in special education to provide special education services to Sullivan. Under these circumstances, Sullivan's parents have not demonstrated a sufficient likelihood that a teacher who is not licensed in special education again will provide special education services to Sullivan.

Sullivan's parents also argue that a justiciable controversy exists because the denial of their motion to join MDCFL as a party to the administrative proceeding may affect their ability to pursue claims against MDCFL in the future. Their arguments, however, relate only to hypothetical situations that might arise in the future. A "merely possible or hypothetical injury" does not meet the requirements for a justiciable controversy. Kennedy, 544 N.W.2d at 6; see also State v. Colsch, 284 N.W.2d 839, 842 (Minn. 1979) (issues which do not exist outside the realm of future possibility are purely hypothetical and not justiciable).

Appeal dismissed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.