The Kamit Institute for Magnificent Achievers v. District of Columbia Public Charter School Board

Notice: This opinion is subject to formal revision before publication in the

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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 11-CV-1622 & 12-CV-1227

THE KAMIT INSTITUTE FOR MAGNIFICENT ACHIEVERS,

APPELLANT,

V.

DISTRICT OF COLUMBIA PUBLIC CHARTER SCHOOL BOARD, ET AL.,

APPELLEES.

Appeals from the Superior Court

of the District of Columbia

(10-CAP-6091)

(Hon. Michael L. Rankin, Trial Judge)

(Argued October 17, 2013 Decided December 26, 2013)

Adam E. Hess, with whom Gene Schaerr, Charles B. Molster III, Barry J.

Hart, and Ralph V. Pantony III were on the brief, for appellant.

Courtney B. Dyer with whom Brian C. Anderson was on brief, for appellee

District of Columbia Public Charter School Board.

Holly M. Johnson, Assistant Attorney General, with whom Irvin B. Nathan,

Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and

Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee

District of Columbia.

Before WASHINGTON, Chief Judge, and GLICKMAN and THOMPSON,

Associate Judges.

2

GLICKMAN, Associate Judge: Shortly before the Public Charter School

Board (“PCSB”) revoked its charter in August 2010, the Kamit Institute for

Magnificent Achievers, Public Charter School, Inc. (hereinafter referred to as

“Kamit”), received from the District of Columbia a quarterly operating budget

appropriation of $703,691 for the upcoming school year. These funds were placed

in an escrow account while Kamit challenged its charter revocation in Superior

Court. With the PCSB’s approval, some of the escrowed funds were disbursed to

Kamit to cover operating expenses it incurred notwithstanding that its charter

school was closed. However, the PCSB refused to release the remaining balance in

escrow, $165,936.33, to reimburse Kamit for severance payments it had made to

its departing faculty and staff. The Superior Court declined to overrule the PCSB’s

decision and ordered that the funds remaining in the escrow account be returned to

the District of Columbia. Kamit, still claiming entitlement to those funds, has

appealed the court’s rulings denying its request for reimbursement. We conclude,

however, that because Kamit’s charter has been revoked and the PCSB is charged

by law with liquidating its assets, settling its debts and conveying any surplus to

the District, Kamit has no legally cognizable interest in the funds at issue and lacks

standing to maintain this appeal.

3

I.

Kamit was formed in 1999 as a District of Columbia nonprofit corporation

with the purpose, according to its articles of incorporation, of securing a charter to

operate a public charter school pursuant to the School Reform Act of 1995.1 The

Board of Education granted Kamit a charter in June 2000. Ten years later,

however, on June 21, 2010, the PCSB initiated proceedings to revoke Kamit’s

charter.2 These administrative proceedings culminated in the PCSB’s revocation

of Kamit’s charter on August 12, 2010. Kamit immediately filed a petition in

Superior Court for judicial review of the PCSB’s decision, along with an

emergency motion to stay the revocation. The stay was denied, and after further

proceedings, the Superior Court upheld the decision to revoke Kamit’s charter in

May 2011. This court affirmed that ruling in Kamit I. 3

1

Now codified, as amended, at D.C. Code § 38-1802.01 et seq. (2012

Repl.). An entity must be organized as a nonprofit corporation in order to be

granted a charter to operate a public charter school. Id. § 38-1802.04 (c)(16).

2

See id. §§ 38-1802.01 (f), -1802.13.

3

See Kamit Institute for Magnificent Achievers v. District of Columbia

Public Charter School Board (Kamit I), 55 A.3d 894, 903 (D.C. 2012).

4

The revocation of Kamit’s charter is now final. The present appeal concerns

an ancillary dispute having its genesis in events that occurred in July 2010 while

the revocation proceedings were under way before the PCSB. First, on July 13,

Kamit’s board of trustees met and approved a severance package for all eligible

faculty and staff as an incentive for them not to leave the school while it was still

seeking to retain its charter. The board agreed that these employees would receive

the equivalent of one month of salary for each year they had worked at Kamit; that

employees who had been with the school for over one year would receive the cash

equivalent of six months of healthcare benefits (and those employed for less than a

year would receive the cash equivalent of one month of healthcare benefits); and

that all eligible employees would be compensated for their accrued and unused

vacation and sick leave and for their pension allocations. This severance package

was outlined to members of the faculty and staff at a meeting on July 14. Kamit

subsequently executed written severance agreements with its employees after its

motion to stay the revocation of its charter was denied. Under these agreements

Kamit eventually paid $361,253.90 in severance and associated payroll taxes.

Second, on July 15, 2010, Kamit received its initial quarterly operating

budget appropriation payment from the District government for the 2010-11 school

year. The amount of this payment, $703,691, was based on Kamit’s projected

5

student enrollment for the school year in accordance with a uniform per student

funding formula.4 After the PCSB revoked Kamit’s charter, the District moved to

intervene in the ensuing Superior Court proceedings “in order,” it explained, “to

protect its interest, and that of its citizens, in the $703,691 in public funds that the

District disbursed.” The motion to intervene was granted. The District then filed a

third-party complaint against Kamit and a motion seeking the immediate return of

the July 15 operating budget appropriation payment on the ground that Kamit,

lacking a charter, would not be schooling any children in the 2010-2011 school

year. Kamit opposed this relief on the grounds that it had incurred some

reimbursable operating expenses in preparation for starting the school year and

would be unable to pay its legitimate creditors if the relief were granted.

On September 20, 2010, the parties agreed to deposit the $703,691 in an

escrow account from which Kamit could receive disbursements for eligible

expenses pursuant to the terms of an escrow order entered by the court. The order

4

See D.C. Code §§ 38-2902, -2906, -2906.02 (2012 Repl.). Section

2906.02 (h) now provides that when a public charter school’s charter is pending

revocation, the Office of the State Superintendent of Education shall hold the July

15 payment in escrow, and that “[u]pon a final revocation decision, the Mayor

shall have no obligation to release the escrow funds.” However, this provision,

added to the statute in 2011 by D.C. Law 19-21, § 4032, was not in effect when

Kamit’s charter was revoked. See 58 D.C. Reg. 6226 (July 29, 2011), 8470 (Oct.

7, 2011).

6

required Kamit and the PCSB to “meet and confer in good faith with respect to any

expenses of [Kamit] that should be paid from the escrowed funds.” In the event

the PCSB did not consent to a requested disbursement, the order provided that, on

Kamit’s motion, the Superior Court would “rule on the propriety of the expenses.”

Following the entry of this order, the PCSB agreed to release funds from the

escrow account to reimburse Kamit for a number of expenses, including rent and

utilities for the facility that Kamit leased from the District through November 2010

and the salaries of employees who remained on the payroll through the first week

of December for wind-down purposes. These approved disbursements reduced the

balance in the escrow account to $165,936.33. Kamit requested the PCSB to

release these remaining funds to it as (partial) reimbursement for the severance

payments it had made to its former employees. The PCSB, taking the position that

the severance payments were not operating expenses incurred in preparation for the

2010-11 school year, refused Kamit’s request. Kamit thereupon moved in Superior

Court for disbursement of the funds pursuant to the dispute resolution provision in

the escrow order.

On December 2, 2011, the court denied Kamit’s motion, finding that “Kamit

has not offered any reason for the court to view this escrow account as the

7

designated source of funding for its severance contracts.” In recognition of the

PCSB’s “authority to oversee settling of debts, liquidation of assets, and the return

to the [Office of the State Superintendent of Education] of remaining assets”

following the revocation of a public charter school’s charter, the court decided to

“leave[] it to PCSB whether Kamit should be recompensed for its generosity to its

employees.” The District then moved for the return of the remaining balance in the

escrow account. The court granted that motion and ordered the funds to be

released to the District. Kamit timely appealed both of the court’s rulings.

II.

In this court, Kamit contends that the Superior Court erred by not ruling on

the “propriety” of its severance expenses. Instead of deferring to the judgment of

the PCSB, Kamit argues, the court should have deferred under the business

judgment rule to the decision by Kamit’s board of trustees to enter into the

severance agreements.5 The District and the PCSB disagree with Kamit’s

5

Under the business judgment rule,

directors’ decisions will be respected by courts unless the

directors are interested or lack independence relative to

the decision, do not act in good faith, act in a manner that

cannot be attributed to a rational business purpose or

(continued…)

8

arguments on the merits. As a threshold matter, however, they argue that Kamit

has no standing to maintain this appeal. We agree with appellees on this point and

do not reach any other issues.6

At a minimum, for Kamit to establish standing to obtain the relief it seeks, it

must demonstrate that the denial of reimbursement for its severance payments from

the escrowed funds caused it to suffer an “injury in fact” that may be “redressed by

(continued…)

reach their decision by a grossly negligent process that

includes the failure to consider all material facts

reasonably available.

Behradrezaee v. Dashtara, 910 A.2d 349, 361 (D.C. 2006).

6

Appellees first challenged Kamit’s standing in a motion to dismiss the

appeal, which a motions panel of this court denied in a one-page order. That denial

was without prejudice, however, to our reconsideration of the issue of standing.

See In re J.A.P., 749 A.2d 715, 717 (D.C. 2000) (“[E]ven when a motions division

of this court has allowed the appeal to proceed, . . . the division assigned to decide

the merits is not bound by that order if, after briefing and consideration, it

concludes that the standards governing appeal under the statute are not satisfied.”);

Kleinbart v. United States, 604 A.2d 861, 867 (D.C. 1992) (“[W]hen a motions

division denies a motion to dismiss . . . , such denials shall be deemed to be

without prejudice to reconsideration by a Merits Division unless expressly denied

with prejudice.” (internal quotation marks omitted)). We exercise our discretion to

reconsider Kamit’s standing because “we do not believe that the issue was

thoroughly aired and definitively resolved” at the motions stage. Id.

9

a favorable decision.”7 To demonstrate an injury in fact, Kamit must show “an

invasion of a legally protected interest which is (a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical.”8 Moreover, it is not

enough that Kamit may have had standing to seek reimbursement from the

escrowed funds at the outset of this litigation, or even when it noted its appeals of

the Superior Court’s rulings. The requisites of standing must continue to be met as

long as the appeals continue.9 As we shall see, because the revocation of Kamit’s

charter has become final, Kamit by law has lost any interest it may have had in the

escrowed funds, or in being reimbursed, and so it now cannot satisfy the

requirements of standing.

7

Grayson v. AT&T Corp., 15 A.3d 219, 246 (D.C. 2011) (internal quotation

marks omitted).

8

Id. (internal quotation marks omitted).

9

See United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)

(defining mootness as “the doctrine of standing set in a time frame,” in that “[t]he

requisite personal interest that must exist at the commencement of the litigation

(standing) must continue throughout its existence (mootness).”); Mallof v. D.C. Bd.

of Elections & Ethics, 1 A.3d 383, 395 n.54 (D.C. 2010) (“Standing is determined

at the time the complaint is filed, while mootness ensures that the requisite

personal stake necessary at the outset of litigation continues through its course.”)

(internal quotation marks omitted).

10

Public charter schools in the District of Columbia are governed by the

provisions of the School Reform Act (the “SRA”) codified at D.C. Code § 38-

1802.01 et seq.10 Among those provisions is § 38-1802.13a, entitled “Mandatory

dissolution.” This section was added to the SRA by D.C. Law 16-268, the Public

Charter School Assets and Facilities Preservation Amendment Act of 2006. It

became effective on March 14, 2007.11 It provides that a nonprofit corporation

operating a charter school “shall dissolve” if the charter has been revoked,12 and

that upon revocation, the chartering authority (i.e., the PCSB13), “in consultation

with” the charter school’s board of trustees, “shall develop and execute a plan for”

liquidating the corporation’s assets, discharging the corporation’s debts, and

distributing any remaining assets “to the District of Columbia, to be controlled by

the Office of Education Facilities and Partnerships within the State Education

10

See Kamit I, 55 A.3d at 896; Richard Milburn Pub. Charter Alternative

High Sch. v. Cafritz, 798 A.2d 531, 534 (D.C. 2002).

11

D.C. Law 16-268, 54 D.C. Reg. 833 (Dec, 28, 2006).

12

D.C. Code § 38-1802.13a (a)(1) (2012 Repl.).

13

Although Kamit received its charter in 2000 from the Board of Education,

the Board’s powers and duties as chartering authority were transferred to the PCSB

in 2007. See id. § 38-1802.01 (f).

11

Office and used solely for educational purposes.”14 For these purposes, the board

of trustees is required, “[a]s soon as feasible,” to submit a “closeout audit” to the

PCSB.15

According to the Committee Report on the bill that added § 38-1802.13a to

the SRA in 2007, its purpose was “to ensure that public funds invested in charter

schools are returned to the public for continued use in support of education needs

when a charter school ceases to operate as a charter school.”16 Prior to 2007 this

had been a problem, the Committee Report explained, because a nonprofit

corporation organized and empowered by statute to operate a charter school could

remain in existence after the school closed, with “no purpose and no powers,” and

without “any explicit guidance for the disposition of [the] corporation, its liabilities

14

D.C. Code § 38-1802.13a (d)(1), (2)(A). The statute further provides that

the plan of liquidation and distribution of assets must comport with the terms of

existing creditor agreements and applicable laws, and that “creditors shall retain all

rights, powers, and remedies available to them to cure default as defined in their

agreements with the charter school.” Id. § 38-1802.13a (d)(2)(B).

15

Id. § 38-1802.13a (d)(3).

16

Council of the District of Columbia, Committee on Education, Libraries,

and Recreation, Report on Bill 16-624, the “Public Charter School Assets and

Facilities Preservation Amendment Act of 2006,” at 1 (Nov. 28, 2006) [hereinafter

“Committee Report”].

12

or its assets.”17 As a result of this “lack of clarity,” the Board of Education and the

PCSB “ha[d] experienced difficulties when closing charter schools and ha[d]

expressed a need for specific legislation to provide clarity on the process to be

followed in such circumstances.”18 Section 38-1802.13a addressed this perceived

need by providing that a nonprofit corporation organized to operate a charter

school “must be dissolved” after the school closes, and by specifying the

procedures to be followed for “protecting the investment of public dollars in these

schools.”19

Although the foregoing requirements of § 38-1802.13a took effect in 2007,

they apply to pre-existing charter schools such as Kamit. This is made explicit in

subsection (c) of the statute. The first paragraph of subsection (c) requires

nonprofit corporations operating public charter schools to acknowledge in their

17

Id. at 6.

18

Id. As an example of the need for the proposed bill, the Committee

Report cited a public charter school that had received millions of dollars in public

funds during the five years it was in operation. “After surrendering the school’s

charter . . . , the Board of Trustees . . . proceeded to sell the facility on the open

market and earned considerable profits on this transaction. Even though the

facility and its operation were constructed and maintained almost exclusively with

public funds, the proceeds from this investment were not available to the District

for continued use in support of educational needs.” Id.

19

Id. at 6-7.

13

articles of incorporation or bylaws that they will dissolve and return their

remaining assets to the State Education Office of the District of Columbia if their

charters are revoked.20 The second paragraph of subsection (c) grants a temporary

exemption from the requirement of the first paragraph; it states that “[a] nonprofit

corporation with an existing charter as of March 14, 2007, shall not be required to

amend its articles of incorporation or bylaws to comply with the requirements of

this section until the time of its charter renewal under § 38-1802.12.”21 The third

paragraph of subsection (c) states that “[n]othing in this subsection shall be

construed as exempting the corporation from any other requirements of this

section.”22 Thus, while a pre-existing charter school such as Kamit is not required

to amend its articles of incorporation or bylaws until its charter comes up for

renewal, it is subject to all the other requirements of § 38-1802.13a.

20

Id. § 38-1802.13a (c)(1).

21

Id. § 38-1802.13a (c)(2). Subsection (a) of § 38-1802.12 (“Charter

renewal”) provides that “[a] charter granted to a public charter school shall remain

in force for a 15-year period” and “may be renewed for an unlimited number of

times, each time for a 15-year period.”

22

Id. § 38-1802.13a (c)(3).

14

In its brief, Kamit suggests that § 38-1802.13a cannot be applied to it

without violating the Contract Clause of the United States Constitution,23 but it has

articulated no argument in support of that claim. In particular, Kamit has identified

no obligation of the contract granting its charter (or of any other contract) that is

impaired by § 38-1802.13a.24 We therefore consider Kamit to have waived any

claim of a Contract Clause violation.25

Consequently, now that the revocation of Kamit’s charter is no longer

subject to legal challenge, Kamit must relinquish all control over its assets and

cease its existence. The power to liquidate Kamit’s assets, discharge its debts, and

23

U.S. CONST. art. I, § 10, cl. 1 (“No State shall . . . pass any . . . Law

impairing the Obligation of Contracts . . . .”), made applicable to the District of

Columbia by D.C. Code § 1-203.02 (2012 Repl.) (a provision of the District of

Columbia Home Rule Act).

24

See also Exxon Corp. v. Eagerton, 462 U.S. 176, 190 (1983) (“The

Contract Clause does not deprive the States of their broad power to adopt general

regulatory measures . . . . One whose rights, such as they are, are subject to state

restriction, cannot remove them from the power of the State by making a contract

about them. The contract will carry with it the infirmity of the subject matter.”)

(internal quotation marks and citation omitted).

25

“[I]ssues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived. It is not enough merely to

mention a possible argument in the most skeletal way, leaving the court to do

counsel’s work, create the ossature for the argument, and put flesh on its bones.”

Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (internal quotation

marks omitted).

15

distribute any remaining funds is vested solely in the PCSB (though the PCSB

must “consult with” Kamit’s board of trustees). Kamit has no residual interest in

any surplus; by law it all goes to the District.26 Kamit thus has no “legally

protected interest” in the escrowed funds at issue in this appeal—it cannot benefit

by obtaining those funds, since the PCSB would dispose of them in any event, and

it suffers no injury by being deprived of them. In other words, Kamit has nothing

to gain by pursuing this appeal. It therefore lacks standing to do so, and the appeal

must be dismissed.

So ordered.

26

In its response to appellees’ motion to dismiss its appeal, Kamit argued

that it retains an interest in funds it received from private (as opposed to public)

sources. It is not clear why this should be so; the mandatory dissolution provisions

of the SRA do not distinguish between privately and publicly contributed funds

and leave it to the PCSB to determine whether any private donations must be

returned to the donors or redirected because the school closed. However, because

(as Kamit’s counsel acknowledged at oral argument) there is no evidence in the

record that Kamit actually possesses any segregated, privately contributed funds,

any potential issue presented by the existence of such funds is not before us.