Summary
In Pacheco, the trial court had held that a school policy requiring the purchase of an activities card as a precondition for participating in extracurricular activities such as athletic contests, dances, plays, and concerts, violated the free school guarantee as applied to children of indigent parents.
Summary of this case from Hartzell v. ConnellOpinion
No. 25912
Decided December 3, 1973. Opinion modified and as modified rehearing denied December 24, 1973.
Action by mother, on her own behalf and as next friend of her children who are attending elementary school, junior high school and high school seeking; (1) recovery of fees and expenditures required by defendant school district to be paid by students; (2) declaratory judgment that collection of such fees is violative of the Colorado constitution; (3) injunction to effectuate requested declaratory judgment; and (4) order permitting them to maintain suit as class action. Trial court entered judgment in favor of plaintiffs for $99.22, ruled that they would not be permitted to maintain this as class action, denied injunctive relief, and defendants appealed.
Appeal Dismissed
1. SCHOOLS AND SCHOOL DISTRICTS — Parent — Fees — Indigency — Pleaded Constitutional Question — Negative — Failure to Argue — Appeal Dismissed. In action by parent to recover fees and expenditures paid to school district for activity cards, gymnasium towels, shop materials and books, where trial court based its ruling in favor of parent upon her indigency, and in its conclusions of law specified that parent could not be required to pay certain fees and expenditures by reason of her indigency, the court predicting its ruling safely upon indigency and not upon pleaded constitutional question, and nowhere in its conclusions of law does court find that such fees and expenditures could not be required to be paid by anyone under foregoing constitutional provision, held, since this appeal is directed to matters not ruled upon by trial court, Supreme Court would not rule upon court's resolution of an issue that had not been argued nor upon separate matters which had been argued; accordingly, the appeal is dismissed.
Appeal from the District Court of El Paso County, Honorable John F. Gallagher, Judge.
Joe A. Cannon, Tom W. Armour, for plaintiffs-appellees.
Horn, Anderson Johnson, R.E. Anderson, for defendants-appellants.
Colorado Association of School Boards, amicus curiae.
Reese Miller, Attorney.
School District No. 1, amicus curiae.
Richard C. Cockrell, Peter M. Eggleston, Attorneys.
Harvard Center for Law and Education, amicus curiae.
Marian Wright Edelman, Merle McClung, Attorneys.
Mrs. Pacheco brought this action on her own behalf and as next friend of her children who are attending elementary school, junior high school and high school. Plaintiffs sought the following relief: (1) the recovery of fees and expenditures required by the defendant school district to be paid by students; (2) a declaratory judgment that the collection of such fees is violative of Colo. Const. art. IX, § 2; (3) an injunction to effectuate the requested declaratory judgment; and (4) an order permitting them to maintain this suit as a class action. The court entered judgment in favor of the plaintiffs for $99.22, ruled that they would not be permitted to maintain this as a class action, and denied injunctive relief. Only the defendants have appealed. We dismiss the appeal.
The fees involved were for activity cards, gymnasium towels, shop materials and books. In addition, it was necessary for gym clothing to be purchased or rented, and there were expenditures for school supplies such as pens, pencils and notebooks.
The court found that the junior high and high school students were required to purchase activity cards for activities such as athletic contests, dances, plays, concerts, school newspapers, the school annual, and other like activities unless payment was made for each individual activity or unless "prior arrangements for admission [were] made with the principal or sponsoring teacher."
In the complaint, the plaintiffs did not predicate their claim for relief upon Mrs. Pacheco's indigency. However, in the direct examination of Mrs. Pacheco by her counsel, a strong showing of indigency was made, including a statement of some of the hardships which she sustained by reason of school fees and expenditures.
Colo. Const. art. IX, § 2 provides as follows:
"The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously. One or more public schools shall be maintained in each school district within the state, at least three months in each year; any school district failing to have such school shall not be entitled to receive any portion of the school fund for that year."
It appears that the school district was acting under the provision in the following statute:
"A board may not require a pupil who shall not have completed the twelfth grade to pay any fees as a condition of enrollment in school, or as a condition of attendance in any course of study, instruction, or class except tuition as authorized by law, charges and fees authorized by this section and section 123-30-19, and those fees reasonably necessary for textbooks or expendable supplies if such are not provided free of charge; provided, that miscellaneous fees may be collected on a voluntary basis as a condition of participation or attendance at a school sponsored activity or program not within the academic portion of the educational program." 1965 Perm. Supp., C.R.S. 1963, 123-30-18(2).
[1] The court based its ruling in favor of the plaintiffs upon Mrs. Pacheco's indigency. In its findings of fact the court stated that the activities requiring activity cards "are integral parts of the overall education program provided in those schools." Nowhere in its conclusions of law does the court find that the fees and expenditures cannot be required to be paid by anyone under the foregoing constitutional provision. In contrast, the conclusions of law specify repeatedly that Mrs. Pacheco cannot be required to pay certain fees and expenditures by reason of her indigency. That the court was predicating its ruling solely upon indigency and not upon the pleaded constitutional question is shown by the following statement near the end of the conclusions of law:
"The Court is not unmindful of the statutory provisions, Attorney General's opinion, and case law cited by defendant district, declaring various types of fees and charges to be constitutionally proper. It is the Court's opinion, however, that where, as here, indigency is shown, even though not pleaded, the plaintiff has established a right on the part of her children to participate in all of the integral parts of the school program without charge or payment of fee."
In denying the defendants' motion for a new trial or to alter and amend judgment, the court stated that the evidence supported the finding that the non-academic activities involved are an integral part of the school programs. The court then stated that it was not ruling that it was constitutionally impermissible to charge fees for these non-academic activities:
"In interpreting [the statute], the Court was not unmindful of the presumption of constitutionality nor of the corollary that where two interpretations of a statute are possible, one constitutional and one unconstitutional, it is presumed that the legislature intended the former. Applying that principal to the instant case, this Court simply interpreted the statutory language to permit the collection of miscellaneous fees from non-indigent students. If the statute were to be construed so as to authorize the collection of miscellaneous fees from indigent students, it would be clearly unconstitutional. It may very well be anyway, but that decision need not be made in this case where the students are in fact indigent."
The thrust of the school district's argument on appeal here is that the fees and expenditures do not deprive "a student of the benefits of a free public school and gratuitous education as required by the Colorado Constitution." The appellants mention the court's ruling as to indigency only in passing. No equal protection argument is advanced in the briefs of the parties — and the term "equal protection" is not to be found.
Where there is some mention of the right of recovery as an indigent in some of the amicus briefs, there is no argument on this point in the briefs of the parties. The simple fact is that this appeal is directed to matters not ruled upon by the trial court. We should not rule upon the court's resolution of an issue that has not been argued nor upon the separate matters which are argued.
Appeal dismissed.
MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE KELLEY dissent.