Respondents Brief — Anmarie Calgaro, Petitioner v. St. Louis County, Minnesota, et al.

No. 19-127

In the

Supreme Court

of the United States

______________

Anmarie Calgaro,

vs.

Petitioner,

St. Louis County, Linnea Mirsch, Individually and in

her Official Capacity as Interim Director of St. Louis

County Public Health and Human Services, Fairview

Health Services, A Minnesota Nonprofit Corporation,

Park Nicollet Health Services, A Nonprofit Corporation,

St. Louis County School District, Michael Johnson,

Individually and in His Official Capacity as Principal

of the Cherry School, St. Louis County School District

and E.J.K.,

Respondents.

______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

______________

BRIEF IN OPPOSITION OF RESPONDENTS

ST. LOUIS COUNTY SCHOOL DISTRICT

AND PRINCIPAL MICHAEL JOHNSON

______________

Trevor S. Helmers

Counsel of Record

Elizabeth J. Vieira

RUPP, ANDERSON, SQUIRES

& WALDSPURGER, P.A.

333 South Seventh Street

Suite 2800

Minneapolis, Minnesota 55402

(612) 436-4300

Trevor.helmers@raswlaw.com

Attorneys for Respondents St. Louis County School

District and Michael Johnson

2019 - Bachman Legal Printing n (612) 339-9518 n 1-800-715-3582 n Fax (612) 337-8053

Question Presented

Whether Petitioner has presented compelling

reasons to grant the Petition for Writ of Certiorari

where the lower courts’ decisions did not consider a

federal constitutional question, the majority of

Petitioner’s claims are moot, and the trial court

granted a motion to dismiss based on Petitioner’s

failure to state a claim pursuant to the Federal Rules

of Civil Procedure.

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Table of Contents

Question Presented....................................................... i

Table of Contents ......................................................... ii

Table of Authorities .................................................... iii

Introduction ................................................................. 1

Statement of the Case ................................................. 1

I. Factual Background.......................................... 1

II. Procedural Background .................................... 2

Reasons for Denying the Petition .............................. 4

I. Petitioner raises no compelling reason why this

petition should be granted. .......................... 4

A. The lower courts did not decide the issues

Petitioner seeks to have reviewed. .................... 4

B. Petitioner’s claims for injunctive and

declaratory relief are moot. ............................... 8

CONCLUSION ........................................................... 9

ii

Table of Authorities

Cases

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) .................................................... 8

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .............................................. 3, 5

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .............................................. 1, 5

Crowley v. McKinney,

400 F.3d 965 (7th Cir. 2005) .................................... 6

Monell v. Department of Social Services of the City of

New York,

436 U.S. 658 (1978) ...................................... 2, 3, 5, 7

Murphy v. Hunt,

455 U.S. 478 (1982) .................................................. 8

Nat'l Collegiate Athletic Ass'n v. Smith,

525 U.S. 459 (1999) .................................................. 6

Pearson v. Callahan,

555 U.S. 223 (2009) .................................................. 5

Roberts v. Galen of Va., Inc.,

525 U.S. 249 (1999) .................................................. 6

Schmidt v. Des Moines Pub. Sch.,

655 F.3d 811 (8th Cir. 2011) .................................... 6

U.S. v. Bestfoods,

524 U.S. 51 (1998) .................................................... 7

United States v. Concentrated Phosphate Export

Assn., Inc.,

393 U.S. 199 (1968) .................................................. 8

Weinstein v. Bradford,

423 U.S. 147 (1975) .................................................. 9

iii

Introduction

Petitioner Anmarie Calgaro (“Petitioner”) has

presented no compelling reason for this Court to

grant her Petition for a Writ of Certiorari (“Petition”).

This matter does not present important questions

regarding due process. Rather, this case was

dismissed because Petitioner failed to include

sufficient facts in the Complaint to “state a claim to

relief that is plausible on its face,” and as such, no

lower court has considered the issues Petitioner now

raises to this Court. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). Furthermore, Petitioner cites

no cases in which the identified issues have been

decided by a court, and this Court lacks jurisdiction

to review this matter because the majority of the

claims are now moot.

Statement of the Case

I.

Factual Background

It is axiomatic on a motion to dismiss that a

court may rely only on the facts pled in the

Complaint. However, the Petition defies this

requirement and instead relies on facts that are

outside the Complaint and not in the record. With

respect to the St. Louis County School District

(“School District”) and Principal Johnson (“Principal”)

(collectively “School District Respondents”), the

relevant facts are as follows.

E.J.K. was a student enrolled in the School

District. Doc. 1, ¶14. She reached the age of majority

on July 6, 2017. Id. ¶42. On an unspecified date in

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2016, 1 Petitioner “requested the School District to

allow her to participate in [E.J.K.]’s educational

decisions and to have access to [E.J.K.]’s educational

records.” Id. ¶134. The School District Respondents

denied Petitioner’s requests. Id. ¶¶135, 137.

II.

Procedural Background

This matter arises out of a Complaint filed on

November 16, 2016. Doc. 1. The Petitioner asserted

that the School District Defendants violated her

Fourteenth Amendment Due Process Rights by

denying her request to participate in educational

decisions and access E.J.K.’s education records (Doc.

1 ¶211); sought a declaratory judgment stating her

due process rights had been violated (Id. ¶224);

sought an injunction enjoining Defendants from

providing further services to E.J.K. (Id. ¶227); and

sought an injunction requiring the School District

Respondents to provide her with E.J.K.’s education

records (Id. ¶228). The School District Respondents

filed a motion to dismiss. See Doc. 32.

The District Court granted the School District

Respondents’ motion to dismiss and held that

Petitioner failed to plead facts that supported her

claim that the School District’s actions were based on

a policy or custom, as required under Monell v.

1

The importance of relying only on the facts contained in the

pleadings is on full display here as Petitioner incorrectly asserts

that she requested E.J.K.’s records from the School District for

“two years.” Even if the “two year” characterization had

occurred anywhere in the pleadings, which it did not, it is clear

that E.J.K. turned 18 in 2017, less than two years after the date

Petitioner asserts she made the request.

2

Department of Social Services of the City of New York,

436 U.S. 658 (1978), and Ashcroft v. Iqbal, 556 U.S.

662 (2009). See App. at 17. The District Court also

granted the Principal’s motion to dismiss based on

qualified immunity. Id.

It is equally important to note what the

District Court did not conclude. Petitioner asserts

that the District Court “concluded that each entity

was well within their authority to end [Petitioner’s]

parental control over E.J.K. without a court order of

emancipation, without parental waiver, and without

parental notice.” Pet. at 19. A plain reading of the

District Court’s decision confirms Petitioner’s claim is

a gross misstatement of the court’s ruling, as that

court made no rulings on the substance of Petitioner’s

claims.

The Eighth Circuit affirmed the District

Court’s grant of the School District Respondents’

motion to dismiss. App. at 9. With respect to the

School District, the Court agreed that Petitioner

“alleged only a legal conclusion” with respect to the

School District’s purported policy or custom and

noted the “complaint identified no actual policy or

established custom of the District about making

emancipation determinations.” 2 App. at 7.

In the Petition, Petitioner objects to this conclusion stating

“[s]ince [Petitioner] was denied educational involvement in

E.J.K.’s school life for over two years as if E.J.K. were

emancipated, there are sufficient facts under Monell to satisfy

the ‘custom or practice’ requirement.” Pet. at 22. It is telling

that, rather than rely on allegations in the Complaint to support

the custom or practice claim, Petitioner asks this Court to rely

on a purported fact that is not only absent from the Complaint,

but flatly contradicted by it. See FN 1, supra.

2

3

With respect to the Principal, the Eighth

Circuit affirmed the District Court’s conclusion that

there is no “clearly established” parental right to

access educational records, nor is there one to

“manage all details of their children’s education or to

obtain consultation with school officials on everyday

matters.” App. at 7-8. Thus, the Principal was

entitled to qualified immunity. Id.

Petitioner now asks this Court to review

decisions not rendered by lower courts on issues that

have never before been considered by any court.

Reasons for Denying the Petition

I.

Petitioner raises no compelling reason

why this petition should be granted.

A.

The lower courts did not decide the

issues Petitioner seeks to have reviewed.

Petitioner has failed to raise a compelling

reason for the Court to grant the requested Writ of

Certiorari. Petitioner repeatedly mischaracterizes

the decisions of the lower courts by claiming that the

Eighth Circuit decided an important question of

federal law when it held that a parent’s due process

rights do not apply to local governmental entities,

such as school districts. Pet. at 5-6. However, the

decisions of both the District Court and Eighth

Circuit only addressed Petitioner’s failure to meet the

pleading standards and the mootness of her claim.

Neither court reached the merits of this purported

due process claim. Thus, there is no important federal

4

question that has been decided in this case, and no

conflict between circuit courts.

It is well established that a local governmental

entity, such as a school district, “may not be sued

under § 1983 for an injury inflicted solely by its

employees or agents.” Monell, 436 U.S. at 694.

Liability for a Section 1983 claim is only present

when “execution of a government’s policy or custom”

causes the injury. Id. Petitioner failed to satisfy her

burden to plead facts that support her claim that the

School District’s actions were based on a policy or

custom. See App. at 17. Instead, the Complaint

contained only conclusory assertions that the School

District had such a policy or custom. Twombly

stands for the proposition that “[t]hreadbare recitals

of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,

550 U.S. at 555). The District Court correctly

concluded that Petitioner’s use of the phrase “policies,

customs, practices, or procedures (or lack of

procedures)” was conclusory and insufficient to

support a Monell claim against the District. App. at

17.

The District Court also correctly granted the

Principal’s motion to dismiss based on qualified

immunity. Qualified immunity protects government

officials unless the official’s conduct “violated a

clearly established constitutional right.” Pearson v.

Callahan, 555 U.S. 223, 232 (2009). Petitioner

continues to cite no cases establishing that the ability

of a parent to make day-to-day educational decision

and access educational records are clearly established

rights. In fact, of the only two circuits to consider

5

whether parents have a liberty interest in accessing

educational records, one concluded there was no such

right (Crowley v. McKinney, 400 F.3d 965, 968-71

(7th Cir. 2005)) and one left the question open

(Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819

(8th Cir. 2011)). Without a clearly established right,

the Principal was plainly entitled to qualified

immunity, as the District Court concluded. App. at

18.

Thus, the lower courts have not considered or

ruled on the issues Petitioner has now asked this

Court to consider. With respect to the School District

Respondents, Petitioner seeks review of the following

issues: 1) “Whether parents’ Due Process Clause

rights apply to local governments. . . ending parental

rights, responsibilities, or duties over their minor

children’s . . . educational. . . decisions without a

court order of emancipation;” and 2) “Whether the

Eighth Circuit erred in affirming dismissal of

Calgaro’s Due Process Clause claims for damages and

equitable relief because, without a court order of

emancipation, without parental waiver, and without

parental notice: . . . a school district in Minnesota has

a custom and practice of barring a parent for more

than two years from involvement in the child’s

education after a child is deemed by the school

principal, not a court order, to be emancipated.” Pet.

at ii.

As outlined above, the first issue is one that

was not addressed by the District Court or Eighth

Circuit. Ordinarily, the Court does “not decide in the

first instance issues not decided below.” Nat'l

Collegiate Athletic Ass'n v. Smith, 525 U.S. 459, 470

(1999); see also Roberts v. Galen of Va., Inc., 525 U.S.

6

249, 253-54 (1999) (declining to address claims that

“do not appear to have been sufficiently developed

below”); U.S. v. Bestfoods, 524 U.S. 51, 72-73 (1998)

(declining to decide “in the first instance an issue on

which the trial and appellate courts did not focus”).

The lower courts did not address the issue because

the matter was dismissed due to Petitioner’s failure

to include required elements in her pleadings, and as

such, this issue is not properly before the Court.

The second issue misrepresents the facts pled

in the Complaint and assumes the School District had

a “custom and practice” of violating Constitutional

rights. However, the basis for the dismissal and

affirmation of the dismissal relied upon Petitioner’s

failure to do more than merely state a legal

conclusion with respect to Monell liability.

Additionally, the second issue relies on the “two year”

timeframe, a purported fact that appeared for the

first time in this Petition and contradicts the

pleadings. Petitioner’s framing of the second issue

essentially asks the Court to ignore the decisions

made below and rewrite the Complaint in order to be

the first court to consider this issue.

Not only did the lower courts in this matter not

consider the questions asserted by Petitioner, but

Petitioner has not identified a single decision in any

jurisdiction that has considered the issues she now

presents. Because the issues on which Petitioner

seeks review are not properly before this Court,

certiorari should be denied.

7

B.

Petitioner’s claims for injunctive

and declaratory relief are moot.

As the Eighth Circuit correctly held,

Petitioner’s claims for declaratory and injunctive

relief are moot because there is no ongoing case or

controversy after E.J.K. reached the age of majority.

An actual case or controversy must “be extant at all

stages of review.” Arizonans for Official English v.

Arizona, 520 U.S. 43, 45 (1997). “When ‘subsequent

events ma[ke] it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected

to recur,’ [the Court] [has] no live controversy to

review.” Camreta v. Greene, 563 U.S. 692, 711 (2011)

(alterations in original) (quoting U.S. v. Concentrated

Phosphate Export Assn., Inc., 393 U.S. 199, 203

(1968)). E.J.K. reached the age of majority while this

case was pending, which resulted in a termination of

Petitioner’s parental rights by law. Petitioner has no

right to access E.J.K.’s education records and

therefore any declaratory or injunctive relief ordering

the same would be improper.

Petitioner’s submission to this Court

attempted to invoke an exception to the mootness

doctrine, specifically, that her claims are capable of

repetition, yet evade review. Pet. at 22. Petitioner

asserts this exception applies because parents do not

receive notice of alleged emancipation decisions and

because she has three minor children who she asserts

could be subject to the same circumstances. Id. at 2223. But, the Court requires more than just “physical

or theoretical possibility” of repetition. Murphy v.

Hunt, 455 U.S. 478, 482 (1982). Rather, “there must

be a ‘reasonable expectation’ or a ‘demonstrated

probability’ that the same controversy will recur

8

involving the same complaining party.” Id. (quoting

Weinstein v. Bradford, 423 U.S. 147, 149 (1975)).

Petitioner has provided absolutely no

“reasonable expectation” or “demonstrated

probability” that she will encounter similar

circumstances with any of her three minor children.

Absent this requirement, the requests for injunctive

and declaratory relief are moot and may not be

considered.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted this August 22, 2019.

Trevor S. Helmers,

Counsel of Record

Elizabeth J. Vieira

RUPP, ANDERSON, SQUIRES &

WALDSPURGER, P.A.

333 South Seventh Street

Suite 2800

Minneapolis, Minnesota 55402

612-436-4300

Trevor.Helmers@raswlaw.com

9