C. W., et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1403

C. W., et al.,
Appellants,

vs.

Fulda School District, I. S. D. 505,
Respondent.

Filed March 5, 2018
Affirmed
Larkin, Judge

Murray County District Court
File No. 51-CV-16-299

Andrea L. Jepsen, Amy J. Goetz, School Law Center, LLC, St. Paul, Minnesota (for
appellants)

Trevor S. Helmers, Kristin C. Nierengarten, Rupp, Anderson, Squires & Waldspurger,
P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellants, a former high-school student and her parents , challenge the district
court’s dismissal of their claims challenging the legality of respondent school district ’s
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policy of precluding high-school students participating in courses under the Minnesota Post
Secondary Enrollment Options (PSEO) Act from accessing the Fulda High School building
during gaps in instruction. Because appellants’ requests for declaratory and injunctive
relief were rendered moot by appellant-student’s graduation and the legislature’ s
amendment of the PSEO Act , and because appellants’ motion to amend did not state a
cognizable claim for monetary damages, we affirm.
FACTS
During the 2016 -2017 school year, appellant C.W. was a senior at Fulda High
School (FHS) in respondent Fulda School District, I.S.D. No. 505 (school district). FHS
is located in Fulda, a town with a population of approximately 1,300 people. During the
2015-2016 and 2016 -2017 school years, C.W. took some classes at FHS for high-school
credit. She t ook other classes at Minnesota West Community and Technical College for
dual high-school and college credit under the PSEO Act, Minn. Stat. § 124D.09 (2016).
When a student participates in dual -credit instruction under the PSEO Act, the school
district loses state funding proportional to the number of dual-credit classes that the student
takes from a post-secondary institution, instead of from a school in the school district.
Given the distance between Fulda and Minnesota West, C.W. took her dual -credit
courses online. As a result of C.W.’s participation in Minnesota West dual-credit classes,
there were gaps in C.W.’s school day when she ordinarily would have had a class at FHS.
During gaps in her schedule during the 2015-2016 school year, C.W. studied in the FHS
library or in a study hall at FHS. Prior to the 2016 -2017 school year, the school district
adopted a policy providing that “[s]tudents enrolled in PSEO courses are required to leave
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campus for the time they are enrolled in PSEO courses” and that “PSEO students are only
to be in the High School building while they are attending Fulda Public School classes or
by special permission of the Administration.”
In November 2016, C.W. and her parents sued the school district claiming violations
of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and
the Rights and Privileges Clause of the Minnesota Constitution. Appellants also claimed
violations of the PSEO Act and state statutes regarding the avail ability of school facilities
and state aid. Appellants alleged that school officials discouraged FHS students from
enrolling in dual-credit classes under the PSEO Act to avoid the associated losses in per -
pupil state funding. As support, appellants alleged that on April 12, 2016, the principal of
FHS told students interested in PSEO classes that they had only one day to complete
paperwork necessary to participate in the PSEO program , when the actual statutory
deadline for students to submit their paperwork was May 30, 2016, over a month later.
Appellants alleged that, during the gaps in C.W.’s schedule attributable to her PSEO
classes, there were study halls available at FHS that the school district did not allow her to
attend. Appellants also alleged that, when C.W. returned to the FHS building to attend a
class after leaving in accordance with the school district’s policy, she was required to sit
on a bench near the school office and was not allowed to leave the bench until the bell rang.
Appellants alleged that students who were home-schooled and participated in activities at
FHS were not similarly restricted while waiting for those activities to begin.
Appellants alleged that FHS students were allowed to take distance-learning courses
from Southwest Service Cooperative by using interactive television (ITV) technology. The
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school district does not lose per-pupil funding when students take ITV courses. Appellants
also alleged that the school district ha d entered into a concurrent enrollment agreement
with the Fond du Lac Tribal and Community College to provide dual-credit courses taught
by FHS teachers in the FHS building. The school district receives aid from the Minnesota
Department of Education for the costs of providing these postsecondary courses at the high
school. Appellants alleged that the school district provide d a dedicated class room and
necessary technology for students participating in ITV and dual -credit courses in the FHS
building. The school district also allowed those students to complete their work in the FHS
building.
Appellants alleged that because of Fulda’s size and location, there were few places
for PSEO students to go when they could not access the high-school building during gaps
in their schedule. Appellants all eged that students like C.W. may have been able to go
home during gaps in their schedule . But going home resulted in increased travel time,
including during inclement weather, and many parents, including C.W.’s parents, d id not
want their children at home unsupervised during the school day. Appellants further alleged
that C.W. requested special permission to continue studying in the library during gaps in
her schedule, and the school district denied her request without explanation.
Appellants requested declaratory and injunctive relief, asking the district court to
(1) order the school district to allow students taking dual -credit courses under the PSEO
Act to remain in the high -school building during gaps in scheduled instruction, (2) order
the school d istrict to provide PSEO students with the space and technological resources
necessary to complete their work in the FHS building, and (3) enjoin the school district
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from instituting any policy that interferes with students’ right to participate in PSEO
coursework. Appellants also requested attorney fees, costs, and disbursements.
In January 2017, appellants amended their complaint to add a claim under the Equal
Protection Clause of the Minnesota Constitution and expand their claim under the PSEO
Act, asserting that the school district’s policy was both in conflict with and preempted by
the act. The district court denied appellants’ request for temporary relief. Shortly
thereafter, the school district moved to dismiss appellants’ amended complaint under Minn.
R. Civ. P. 12.02(e), for failure to state a claim upon which relief can be granted. In April
2017, the district court held a hearing regarding the school district’s motion to dismiss.
On May 26, 2017, C.W. graduated from high school. By letter request that day, the
school district asked the district court to reopen arguments regarding its motion to dismiss
and allow it to argue that appellants’ claim s were moot given C.W.’s graduation.
Appellants responded that they did not object, but requested that the court “give them leave
to amend their Complaint to include a claim for damages accrued since the filing of the
Complaint.” The district court granted the school district’s request. However, the district
court denied appellants’ letter reques t for leave to amend the complaint and directed
appellants to file a motion to amend.
Appellants moved “for leave to amend the first amended complaint” to “add a claim
for damages.” In a memorandum supporting the motion, appellants asserted that the school
district’s policy resulted in C.W. having ten fewer hours per week to devote to academics
and that the lost time made it necessary to enroll in two fewer dual -credit classes during
the spring of 2017. Appellants further asserted that C.W. would there fore be required to
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take six more credits at the college she planned to attend in the fall and to incur an
additional $7,795 in expenses. Appellants argued that an amended claim for damages
would prevent their claims from being moot. In a memorandum in support of its mootness
argument, the school district argued that appellants were “merely attempting to overcome
the admitted mootness of their claims by adding a new claim for damages.”
The district court dismissed appellants’ first amended complaint for failure to state
a claim, concluding that appellants’ claims failed on the merits and that C.W.’s graduation
rendered the claims moot. The district court ’s order did not refer to appellants’ motion to
amend. This appeal follows.
D E C I S I O N
Appellants raise two main arguments on appeal. First, appellants contend that the
district court erred in concluding that their PSEO Act and Equal Protection claims failed
to state a claim on the merits. Second, appellants contend that the “district cour t erred by
determining that appellants’ claims were moot before hearing appellants’ motion to amend
their complaint to add a claim for damages.” We first address the mootness ruling.
The mootness doctrine is based on the principle that “[appellate courts] do not issue
advisory opinions, nor do [they] decide cases merely to establish precedent.” Jasper v.
Comm’r of Pub. Safety, 642 N.W.2d 435, 439 (Minn. 2002). “Mootness has been described
as the doctrine of standing set in a time frame: The requisite pe rsonal interest that must
exist at the commencement of the litigation (standing) must continue throu ghout its
existence (mootness).” Dean v. City of Winona , 868 N.W.2d 1, 4 -5 (Minn. 2015)
7
(quotation omitted). Because mootness is a jurisdictional issue, we review it de novo. Id.
at 4.
An action “should be dismissed as moot when a decision on the merits is no longer
necessary or an award of effective relief is no longer possible.” Id. at 5. However,
mootness is a “flexible discretionary doctrine, not a mechanical rule that is invoked
automatically.” Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005) (quotation omitted).
And courts “will not deem a case moot if it implicates issues that are capable of repetition,
yet likely to evade review.” Id. An action is “capable of repetition, yet likely to evade
review” if “(1) the challenged action was in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 1 47, 149, 96 S. Ct. 347, 348 (1975). A case is not moot if it is “functionally
justiciable” and presents an important public issue “of statewide significance that should
be decided immediately.” State v. Rud, 359 N.W.2d 573, 576 (Minn. 1984).
Declaratory and Injunctive Relief
The district court determined that appellants’ claims for declaratory and injunctive
relief were moot. Appellants do not assign error to this determination. Appellants asked
the district court to order the school district to allow PSEO students to remain in the FHS
building during gaps in scheduled instruction and to provide PSEO students with the space
and technological resources necessary to complete their work in the high-school building.
Appellants also asked the district court to enjoin the school district from instituting any
policy that interferes with students’ right to participa te in PSEO coursework. Because
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C.W. is no longer a student in the school district and will no longer be subject to the school
district’s PSEO policies, the district court cannot grant her effective relief by requiring the
school district to change its PSEO policies.
Moreover, in May 2017, the legislature amended the PSEO Act to add the following
language:
(a) A school district must allow a student enrolled in
a course under this section to remain at the school site during
regular school hours.
(b) A school district must adopt a policy that provides
a student enrolled in a course under this section with reasonable
access during regular school hours to a computer and other
technology resources that the student needs to complete
coursework for a postsecondary enrollment course.

2017 Minn. Laws 1st Spec. Sess. ch. 5, art 2, § 32, at 1524 , codified at Minn. Stat.
§ 124D.09, subd. 11a. (Supp. 2017).
This new legislation plainly prohibits a PSEO policy like the one at issue here and
essentially mirrors the equitable relief that appellants requested in their complaint. In fact,
appellants assert that the legislature added this provision in direct response to the
controversy in this case. As a result of this recent legislation, no PSEO student may be
subject to a school-district policy denying access to school sites during regular school hours
or reasonable access to computers and technological resources necessary to complete
PSEO coursework. Thus, this case does not implicate issues that are capable of repetition
yet likely to evade review. Nor does it present an issue of statewide significance that the
courts should decide immediately. For these reasons, we hold that appellants’ requests for
declaratory and injunctive relief are moot.
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Motion to Amend to Add Damages Claim
Appellants contend that their claims are not moot because th ey “could be afforded
the effectual relief of their actual damages.” Appellants also contend that they were
prejudiced “[w]hen the District Court en tirely ignored the fact that [they] were making a
claim for damages, a claim that would defeat [the school district’s] mootness argument,
and decided that [their] case was moot.”
A party may amend a pleading outside the time period for amendment as a ma tter
of course “only by leave of court or by written consent of the adverse party; and leave shall
be freely given when justice so requires.” Minn. R. Civ. P. 15.01. A motion to amend
under rule 15.01 “should be freely granted, except where to do so would result in prejudice
to the other party. ” Marlow Timberland, LLC v. County of Lake , 800 N.W.2d 637, 640
(Minn. 2011) (quotation omitted) . However, a district court may also properly deny
amendment if the proposed amended pleading does not state a cogniz able legal claim.
LaFee v. Winona County, 655 N.W.2d 662, 668 (Minn. App. 2003), review denied (Minn.
Mar. 27, 2013); see Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226, 228-
29 (Minn. 1982) (holding that district court did not abuse its discretion by denying motion
to amend to add a punitive -damages claim where punitive damages could not be awarded
as a matter of law).
“The decision whether to permit a party to amend pleadings rests within the
discretion of the [district] court and will not be reversed in the absence of clear abuse of
such discretion.” Warrick v. Giron, 290 N.W.2d 166, 168 (Minn. 1980). Moreover, “on
appeal error is never presumed. It must be made to appear affirmatively before there can
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be reversal. . . . [And] the burden of showing error rests upon the one who relies upon it.”
Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (quotation omitted). Thus,
even if the distric t court does not expressly rule on a motion, we do not assume that the
district court erred. Palladium Holdings, LLC v. Zuni Mortg. Loan Tr. 2006-OA1, 775
N.W.2d 168, 177 -78 (Minn. App. 2009), review denied (Minn. Jan. 27, 2010). Instead,
appellate courts generally treat a district court’s silence on a motion as an implicit denial
of the motion. Id.
Appellants argue:
It was the height of unfairness for the District Court to
grant [the school district’s] letter request to open the record on
[the school district’s] motion to dismiss so that it could argue
that [their] claims were moot, to require [them] to file a motion
to amend their complaint in ways that would defeat [the school
district’s] argument, and then to make a decision on [the school
district’s] mootness claims while ignoring [their] motion.

Although the district court did not refer to appellants’ motion to amend in its
dismissal order, it appears that the district court implicitly denied th e motion in granting
the school district’s motion to dismiss as moot. I n district court, the parties consistently
framed appellants’ request to amend the complaint to add a damages claim as a defense to
the school district’s argument that C.W.’s graduation rendered appellants’ claims moot.
Appellants requested the amendment in a letter responding to the school district’s request
to reopen the record for arguments regarding mootness. In the letter, appellants stated that
their “claim for attorney’s fees, and a claim for damages, should defeat any mootness
defense.” And the district court’s June 2, 2017 order reopening the record addressed both
issues.
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Appellants and the school district characterized the motion to amend as an attempt
by appellants to prevent appellants’ claims from being moot. Indeed, appellants argued
that if they were “given leave to amend . . . , any argument that their case is moot will
evaporate.” On appeal, appellants argue “[w]hat the court did . . . , and in doing so abused
its discretion, was to treat [their] defense to [the school district’s] mootness argument as if
it were nonexistent and never had been offered, and make a decision on [the school
district’s] argument that [their] claims were moot.” Given the interrelation of respondent’s
motion to dismiss as moot and appellants’ motion to amend to include a claim for damages,
we do not presume that the district court erred by ignoring appellants’ motion as appellants
assert. Instead, we treat the district court ’s silence regarding the motion to amend as an
implicit denial of the motion.
A “g eneralized request” for damages “untethered to a specific claim or
constitutional provision” is insufficient to put a defendant on notice of a specific cause of
action. See Dean, 868 N.W.2d at 8 (stating that generalized request for “nominal damages
of $1.00 for violations of [plaintiffs’] constitutional rights” did not put the defendants on
notice of a cause of action for nominal damages under the Remedies Cla use (quotation
marks omitted)). Here, appellants simply requested “leave to amend the first amended
complaint in [this] matter to add a claim for damages.” Appellants’ motion and supporting
memorandum did not identify the specific constitutional or statutory claims on which their
request for monetary damages was based.
At oral argument, appellants narrowed the scope of their request for damages,
acknowledging that the only cognizable basis for monetary damages is their equal-
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protection claim. 42 U.S.C. § 1983 (2014) provides a private right of action for violations
of constitutional provisions, including the Equal Protection Clause , and a party bringing a
§ 1983 claim may seek monetary damages for violations o f their constitutional rights.
However, appellants did not refer to § 1983 as a basis to amend their first amended
complaint to add a claim for damages. Nor did appellants refer to § 1983 in their existing
pleadings. Because appellants’ generalized request for damages was not linked to a
specific claim or constitutional provisi on, we cannot say that the district court abused its
discretion by implicitly denying their motion to amend.
In conclusion, the district court did not err by denying appellants’ motion to amend
and dismissing appellants’ first amended complaint as moot . Nevertheless, appellants
encourage us to address the merits of their claims, arguing:
Some school districts look for creative ways to interfere with
their students’ access to the PSEO program as a way to increase
school district revenue, and [we] expect this practice to
continue, even if it cannot continue in the way the PSEO Act
now forbids. A determination that a school district may not
single out PSEO students for different treatment to inhibit their
involvement in the PSEO program would be of great v alue to
young people interested in the PSEO program, and to the state
as a whole.

(Footnote omitted.) Essentially, appellants ask us to make a proclamation regarding
actions that may occur in the future . Regardless of the merits of such a proclamation , it
would constitute an improper advisory opinion. Appellate courts do not issue advisory
opinions. Jasper, 642 N.W.2d at 439.
Affirmed.