On February 23, 2000, petitioner filed a Petition for Judicial Review of School District Reorganization Order with the Circuit Court for Juneau County, naming the SDBAB as the sole respondent. The petition purported to state a claim under Wis. Stat. § 117.14 and asked the court to set aside the "findings, rulings, decisions and Order" allegedly issued by the SDBAB. See Petition for Judicial Review at 2-3. The petitioner asserted, in a general and conclusory way, that the SDBAB had acted in excess of its statutory authority and jurisdiction, had taken actions not supported by substantial evidence, had acted contrary to lawful procedure, had acted arbitrarily and capriciously, had acted on the basis of an erroneous interpretation of the applicable statutes and had acted contrary to the educational welfare factors set out in Wis. Stat. § 117.15. Id. at 2. These allegations were not supported by any specific factual allegations relating petitioner’s legal conclusions to any particular actions of the SDBAB.

Respondent filed its notice of appearance on April 14, 2000, and simultaneously moved to dismiss the petition on the grounds that Wis. Stat. § 117.14 did not give the Court jurisdiction over petitioner’s claims. Respondent noted that that statute, which gives a circuit court jurisdiction over an appeal by a person aggrieved by an order of the SDBAB or by the granting of a detachment and attachment of territory by school board action under Wis. Stat. § 117.11(3), would not apply in this case. Respondent reasoned that the petitioner in this case was not aggrieved by either of those events because the SDBAB had issued no order in relation to this matter and because the reorganization in question was not granted by school board action under Wis. Stat. § 117.11(3), but rather was approved by public referendum under Wis. Stat. § 117.11(4) and (5). Respondent further pointed out that the court could not exercise jurisdiction over an appeal from a reorganization approved by public referendum because such a referendum is a binding legislative act that does not raise justiciable issues subject to review by a court.

On May 5, 2000, a scheduling conference was held with the Court by telephone and petitioner moved for summary judgment and requested a briefing schedule. Consideration of respondent’s motion to dismiss was postponed until after the completion of briefing. Petitioner subsequently filed a summary judgment brief that is directed almost exclusively to an entirely new issue that was not raised in the petition for judicial review, that has nothing to do with the SDBAB, and that does not even nominally purport to be directed against the SDBAB. Petitioner now claims that the EKW school board acted unlawfully in directing a referendum on the reorganization petition after first having denied that petition. See Petitioner’s Brief at 3-12. Petitioner has not sought to amend her petition for judicial review, however, nor has she sought to add the interested local school boards as parties to this action. Instead, petitioner simply argues her new legal theory to the Court, without regard to the fact that there is no respondent before the Court that has a stake in the claim petitioner is now making and no party against whom the Court might direct a remedy that would redress petitioner’s purported grievance. Because of this change in petitioner’s position, the SDBAB will limit itself, in this brief, to arguing that the petition should be dismissed as to the SDBAB, without taking a position on whether the petition must also be dismissed in its entirety or whether petitioner may be able to state a cognizable claim against some other party, not presently before the Court. SUMMARY JUDGMENT METHODOLOGY

Wisconsin Stat. § 802.08(2) provides that a party is entitled to summary judgment, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The purpose of summary judgment is to avoid trial where there is no genuine issue as to any material facts. Heck & Paetow Claim Service, Inc. v. Heck, 93 Wis. 2d 349, 355, 286 N.W.2d 831 (1980). The trial court does not decide issues of fact but rather determines whether any material facts are in dispute. Kremers-Urban Co. v. American Employers Ins., 119 Wis. 2d 722, 734, 351 N.W.2d 156 (1984). Summary judgment is an appropriate means of resolving legal issues where there are no factual issues. Colip v. Travelers Ins. Co., 141 Wis. 2d 363, 365, 415 N.W.2d 525 (Ct. App. 1987).

The trial court employs three steps to decide a motion for summary judgment. First, the court must examine the pleadings to determine whether a claim has been stated and whether any genuine issue of fact is presented. If so, the next step requires examination of affidavits and other materials submitted by the moving party to determine whether that party has made out a prima facie case for summary judgment. If such is the case, the final step is to examine the affidavits and other materials submitted by the opposing party to determine whether disputed material facts exist. Driver v. Driver, 119 Wis. 2d 65, 69, 349 N.W.2d 97 (Ct. App. 1984). Only if material facts are in dispute are further fact-finding proceedings necessary. Id.

ARGUMENT

I. PETITIONER HAS NOT STATED A COGNIZABLE CLAIM UNDER WIS. STAT. § 117.14 AGAINST THE SDBAB BECAUSE PETITIONER IS NOT AGGRIEVED BY AN ORDER OF THE SDBAB.

The right to judicial review of a school district reorganization is statutory in nature. See Wis. Stat. § 117.14. School district reorganization is a legislative, policy-making function that is not reviewable unless made so by statute. See Joint School District v. State Appeal Bd., 56 Wis. 2d 790, 794-95, 203 N.W.2d 1 (1973) (school district reorganizations judicially reviewable only to the very limited extent permitted by the Legislature). In Wisconsin, courts are authorized to review school district reorganizations by Wis. Stat. § 117.14, which enumerates a limited set of circumstances in which review is possible: Appeal to court. (1) Any person aggrieved by the denial of a consolidation under s. 117.08(2) or 117.09(2), the granting of a detachment and attachment of territory under s. 117.11(3) or any order of the board or an appeal panel under this chapter may, within 30 days after copies of the order are filed with the secretary of the board under s. 117.17(2), appeal the order to a circuit court . . .

The term "the board" in the above statute means the SDBAB. See Wis. Stat. § 117.03(3). The present case does not involve the denial of a consolidation under Wis. Stat. § 117.08(2) or 117.09

Petitioner in this case is not aggrieved by the granting of a detachment and attachment of territory under Wis. Stat. § 117.11(3). That statute refers to the approval of a reorganization petition by school board action. The reorganization in this case was not approved by school board action, but rather was approved by the voters in a public referendum. The approval of a school district reorganization via a public referendum does not occur under Wis. Stat. § 117.11(3), but rather under the following two subsections, Wis. Stat. § 117.11(4) and (5). The review statute, Wis. Stat. § 117.14, however, does not provide for judicial review of reorganizations approved under Wis. Stat. § 117.11(4) and (5). Rather, the Legislature has specifically provided for judicial review of reorganizations approved by school board action, under Wis. Stat. § 117.11(3), but has not provided for judicial review of reorganizations approved by public referendum, under Wis. Stat. § 117.11(4) and (5). It follows that petitioner is not entitled to review as a party aggrieved by the granting of a detachment and attachment of territory under Wis. Stat. § 117.11(3). Furthermore, even if petitioner were aggrieved by the approval of a school district reorganization under Wis. Stat. § 117.11(3), the SDBAB still would not be a proper respondent in an action for judicial review under that section. Because the granting of a detachment and attachment of territory under Wis. Stat. § 117.11(3) is an action of the interested local school boards, and not an action of the SDBAB, the proper respondents in an action for judicial review under that section would be the local school boards, not the SDBAB.

Petitioner in this case is also not aggrieved by an order of the SDBAB under Wis. Stat. ch. 117. The reorganization order for which review is sought was issued by the local school boards of the affected school districts after approval of the reorganization in a public referendum. The SDBAB has not issued any order in relation to the school district reorganization in question. It follows that the SDBAB is not a proper respondent in an action seeking judicial review of that reorganization.

The actions of the SDBAB in connection with this case have been purely ministerial and do not constitute an "order of the board" within the meaning of Wis. Stat. § 117.14. The only thing that the SDBAB has done in relation to this case is to carry out its secretarial duties under Wis. Stat. § 117.17(2). Under that statute, the secretary of the SDBAB was required to file the reorganization order issued by the local school boards and to send a certified copy of that order, by certified mail, to the clerk of each city, village, town or county any part of which is within one of the affected school districts. See Wis. Stat. § 117.17(2). The SDBAB conducted no hearing and made no findings or decisions before carrying out its filing and mailing duties. Moreover, nothing in the law required or authorized the SDBAB to provide a hearing or to make findings or decisions regarding the reorganization in question. The materials mailed out by the SDBAB on February 18, 2000, simply informed the recipients that the local school boards had issued the attached reorganization order following approval in a public referendum. The SDBAB did not make the decision to reorganize the affected school districts. That decision was made by the people who voted in the referendum. It follows that the actions of the SDBAB in relation to this matter did not constitute issuance of an "order of the board" within the meaning of Wis. Stat. § 117.14.

The materials mailed out by the SDBAB included a document captioned: "Effective Date of Order Order Altering School District Boundaries."

Ap. 1. Petitioner has suggested that this document, on its face, constitutes an order of the SDBAB. See Petitioner’s Brief at 18. The document in question, however, was merely a cover sheet accompanying the orders of the local school boards that the SDBAB was required, under Wis. Stat. § 117.17(2), to forward to all affected municipalities. The Certificate of True Copy signed by the Secretary of the SDBAB clearly states that the "Order of Reorganization" in question was "made and filed by the School Board of the Elroy-Kendall-Wilton School District on the 24th day of January, 2000, and the School Board of the Norwalk-Ontario School District on the 17th day of January, 2000." Ap. 2. In addition, the cover sheet itself, after listing the affected towns and villages, says: "See enclosed order for exact locations" (emphasis added). Ap. 1. Obviously, the order was not the cover sheet itself, but rather something enclosed with the cover sheet. And the only order enclosed with the cover sheet was the reorganization order issued by the local school districts. See Bever Affidavit Exhibits D and F. The cover sheet included the heading "Order Altering School District Boundaries" because such an order was included in the mailing to which said cover sheet was attached. But the cover sheet was obviously not itself an order and the order in question was obviously issued by the local school boards, not by the SDBAB.

Under a predecessor statute to the present Wis. Stat. ch. 117, the Wisconsin Supreme Court has held that the duty to file a certified copy of a reorganization order is a ministerial duty that does not affect the legal validity of the underlying reorganization. See Joint School Dist. v. Sosalla, 3 Wis. 2d 410, 419, 88 N.W.2d. 357 (1958); State ex rel. Grant School Dist. v. School Bd., 4 Wis. 2d 499, 509-10, 91 N.W.2d 219 (1958). Where a reorganization was subject to approval by referendum, the Supreme Court held that the approval of the reorganization took its legal effect from the referendum itself and that the school board’s subsequent duty to issue and file an order to record the action of the voters was a ministerial duty. See Sosalla, 3 Wis. 2d at 419. In this case, similarly, the reorganization was approved once the votes cast in the referendum had been canvassed. Under the principle set out in Sosalla, therefore, the duty of the local school boards in this case, under the present Wis. Stat. § 117.11(5), to make and file a reorganization order embodying the referendum results was a ministerial duty. Since the local school boards that actually issue the reorganization order following the referendum were only performing a ministerial task, it follows that the SDBAB, which did not issue an order at all, but only filed and mailed out certified copies of the order issued by the school boards, was even more clearly performing a purely ministerial role.

The limited, ministerial function of the SDBAB in relation to school district reorganizations under Wis. Stat. § 117.11 stands in sharp contrast to the decision making role that the Legislature has given the SDBAB under several other sections of Wis. Stat. ch. 117. The Legislature has specifically provided for SDBAB review of actions taken under Wis. Stat. §§ 117.10, 117.105, 117.12 and 117.132, but has not provided for SDBAB review of reorganizations under the section involved in this case, Wis. Stat. § 117.11. Furthermore, in those sections of Wis. Stat. ch. 117 that do provide for SDBAB review, the Legislature requires the SDBAB to issue an order in writing and to include a statement of the reasons for that order. See Wis. Stat. §§ 117.10(4), 117.105(2m)(c), 117.12(5)(b) and 117.132(4)(b). It is these written orders, issued in cases where the Legislature has given the SDBAB a substantive role, that are the "orders of the board" reviewable under Wis. Stat. § 117.14. The reason why the statutes require a written order and a statement of reasons is precisely to provide a record for subsequent judicial review. In contrast, sections of Wis. Stat. ch. 117 that do not provide for SDBAB review also do not call on the SDBAB to issue a written order or a statement of reasons for the simple and obvious reason that, in actions under those sections, there is no reviewable action by the SDBAB. Where the Legislature intended the SDBAB to issue reviewable orders, it has provided specific statutory authorization for SDBAB review and has specifically instructed the SDBAB to issue an order in writing and to include a statement of the reasons for the order. In the present case, however, the school district reorganization was carried out under Wis. Stat. § 117.11, which does not provide for SDBAB review. Under that section, there are no issues to be determined by the SDBAB, no decisions to be made by the SDBAB and no orders to be issued by the SDBAB. The SDBAB therefore has not issued any reviewable order in this matter and is not a proper respondent in this action.

B. Petitioner is not aggrieved by any action of the SDBAB in relation to the reorganization in question. In addition to requiring a reviewable "order of the board" as a prerequisite to judicial review, Wis. Stat. § 117.14 also requires that the petitioner be "aggrieved" by that order. Petitioner in this case claims not only that the SDBAB’s actions in relation to this matter constitute a reviewable order, but also that petitioner is aggrieved by the SDBAB’s purported "order." In other words, petitioner claims to be aggrieved by the SDBAB’s actions of filing and mailing copies of the reorganization order issued by the local school boards.

The Wisconsin Supreme Court has set out principles for determining when a party is aggrieved by the actions of a government agency. It is well established that a party is aggrieved by an agency action, and therefore has standing to petition for judicial review of that action, only if the challenged action has directly caused injury to the interests of petitioner and if the allegedly injured interests are recognized and protected by law. Wisconsin’s Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1, 10, 230 N.W.2d 243 (1975); Town of Delavan v. City of Delavan, 160 Wis. 2d 403, 410-11, 466 N.W.2d 227 (Ct. App. 1991). This analysis in Wisconsin is conceptually similar to the standing analysis under federal law. Fox v. DHSS, 112 Wis. 2d 514, 524, 334 N.W.2d 532 (1983). The petitioner must show that she has sustained, or is in danger of sustaining, some direct injury in fact as the result of the challenged agency action. Id. at 524-25.

Although the standing rules are most often used to identify proper plaintiffs, the same principles may also serve to distinguish proper from improper defendants. See 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3531.5 (1984) at 460. A court should adjudicate a dispute only if the interests of the parties on both sides of the dispute are sufficiently adverse to create a justiciable controversy. To state a justiciable controversy, a plaintiff must allege injuries that fairly can be traced to the challenged conduct of the named defendant, rather than injuries resulting from independent actions of other parties. See Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). A respondent that can show at the outset that it is not responsible for the petitioner’s grievance is therefore not a proper party for the petitioner to sue. See Wright, Miller & Cooper § 3531.5 at 458. There are strong practical and prudential reasons for this principle. First, the petitioner’s injury is not likely to be redressed by a remedy directed against someone who did not cause that injury. Id. Second, a party that is not directly involved in the controversy that is the subject of the petition is not likely to perform adequately as an adversary in litigation. Id. Third, and perhaps most importantly, there is little or no justification for imposing the burdens of litigation on a party that did not cause the injury in question. Id.

Applying these principles to the present case, it follows that a petitioner under Wis. Stat. § 117.14 can only be considered a person aggrieved by an order of the SDBAB within the meaning of that statute if she alleges a grievance that can fairly be traced to some conduct by the SDBAB, rather than to the conduct of other parties. The injury alleged by petitioner in this case cannot fairly be traced to any act or omission by the SDBAB. If petitioner is aggrieved by anything it is by the referendum results or by the EKW school board’s resolution directing a referendum, not by any conduct of the SDBAB. Nothing that the SDBAB has done has harmed petitioner in any way. The SDBAB did not participate in the reorganization proceedings – its only involvement was to file the reorganization order submitted by the local school boards and to mail certified copies to the clerks of the affected municipalities. The SDBAB has taken no actions either favoring or opposing the reorganization in question and has no stake in the outcome of the dispute. It follows that the SDBAB is not involved in any controversy with petitioner and does not have that concrete adverseness that would sharpen the issues, make the SDBAB an effective litigant and justify imposing on the SDBAB the burdens of litigation.

In addition, there is no remedy this court might direct against the SDBAB that would redress petitioner’s claimed injury. Under Wis. Stat. § 117.17(3)(b), a school district reorganization order is effective regardless of whether or not the SDBAB has carried out its ministerial duties under Wis. Stat. § 117.17(2). Therefore, even if the SDBAB had not taken the ministerial actions about which petitioner apparently complains, the reorganization order issued by the local school districts would still be valid and would still take effect on July 1, 2000. What petitioner really wants is for this Court to hold that the pending school district reorganization cannot go forward. But there is nothing the Court can order the SDBAB to do that would prevent the reorganization from taking effect as scheduled on July 1, 2000. Any remedy that would redress petitioner’s concerns must be addressed to the local school boards, not to the SDBAB. At heart, petitioner’s claim is that the EKW school board acted unlawfully when it directed a referendum on a reorganization petition after first denying that same petition. Obviously, the proper party to defend against such a claim would be the EKW board, not the SDBAB. II.

PETITIONER’S CLAIM THAT THE SDBAB WASHED ITS HANDS OF THE SUBSTANTIVE ISSUES OF THIS CASE AND MERELY RUBBER STAMPED THE ACTIONS OF THE EKW SCHOOL BOARD IS WITHOUT MERIT.

In spite of the fact that the SDBAB clearly has no substantive role in school district reorganizations under Wis. Stat. § 117.11, petitioner nonetheless claims that the SDBAB acted improperly in relation to this matter. According to petitioner, the SDBAB washed its hands of the substantive issues underlying the proposed reorganization and merely rubber stamped the reorganization order issued by the local school boards. See Petitioner’s Brief at 14-15. This claim is without merit. As shown above, when a school district reorganization takes place under Wis. Stat. § 117.11, the SDBAB has no substantive responsibilities, but only ministerial duties under Wis. Stat. § 117.17(2). The SDBAB admittedly carried out those ministerial duties in this case. It is absurd to suggest, as petitioner has done, that the SDBAB had an "integral involvement" in the reorganization process merely because the EKW school board’s initial resolution denying the reorganization petition was forwarded to the SDBAB and because the referendum results were filed with the SDBAB. Petitioner’s Brief at 17. It is equally absurd to suggest that the SDBAB acted outside its statutory authority when it did exactly what the Legislature has commanded it to do in cases of this nature. The decision to exclude the SDBAB from any substantive involvement in school district reorganizations under Wis. Stat. § 117.11 was made by the Legislature, not by the SDBAB. If petitioner thinks it is bad public policy to exclude the SDBAB from that process, she should direct those concerns to the Legislature, not to this Court.

Petitioner’s claim that the SDBAB failed to satisfy its statutory duty to consider the educational welfare factors set out in Wis. Stat. § 117.15 is also without merit. Contrary to petitioner’s suggestion, the SDBAB does not have a duty to consider those factors in every reorganization case. See Petitioner’s Brief at 17. Wisconsin Stat. § 117.15 clearly says that when the SDBAB makes a decision under Wis. Stat. §§ 117.08 to 117.132, it shall consider the enumerated factors. But Wis. Stat. § 117.15 does not purport to define the circumstances in which the SDBAB is called upon to make a decision. That task is accomplished, rather, in Wis. Stat. §§ 117.08 to 117.132 themselves, in the particular sections where the Legislature has specifically given the SDBAB a decision making role. Because the SDBAB does not make any "decisions" when a reorganization takes place under Wis. Stat. § 117.11, it is not required to consider the Wis. Stat. § 117.15 factors in cases under that section. In such cases, the SDBAB’s only duties are the purely ministerial ones set out in Wis. Stat. § 117.17(2). It is absurd to suggest that the SDBAB must consider the Wis. Stat. § 117.15 factors before filing an order received from local school boards and notifying the affected municipalities. Consideration of those factors by the SDBAB is only required in cases where the SDBAB has the power to review a reorganization decision, as under Wis. Stat. § 117.12. Where the SDBAB acts only in a ministerial capacity, and not as a decision maker, it need not consider the factors set out in Wis. Stat. § 117.15.

It follows that petitioner’s reliance on the decision in School Dist. of Waukesha v. SDBAB, 201 Wis. 2d 109, 548 N.W.2d 122 (Ct. App. 1996), is irrelevant to the present case. See Petitioner’s Brief at 14. The Waukesha case involved a reorganization under Wis. Stat. § 117.12, which specifically provides for SDBAB review. Id. at 112-13. This case, in contrast, involves a reorganization under Wis. Stat. § 117.11, which does not provide for SDBAB review. Obviously, in the Waukesha case, the SDBAB held hearings, created a written record and applied the required legal standards because the SDBAB had a decision making role under the statutes applicable in that case. The SDBAB cannot, however, be faulted for failing to do the same things in this case, for the simple reason that the SDBAB has no decision making role in reorganizations under Wis. Stat. § 117.11.

III. A LOCAL SCHOOL BOARD ACTING UNDER WIS. STAT. § 117.11(4) CAN DIRECT THE HOLDING OF A PUBLIC REFERENDUM FOLLOWING A RESOLUTION EITHER APPROVING OR DENYING A REORGANIZATION UNDER WIS. STAT. § 117.11(3).

Although respondent has taken no position on the substantive merits of the school district reorganization at issue in this case, there is one serious substantive error in petitioner’s brief that respondent feels compelled to bring to the Court’s attention. Petitioner claims that Wis. Stat. § 117.11(4) authorizes a school board to call for a public referendum on a reorganization petition only following school board approval of such a petition, but not following school board denial of a petition. Petitioner’s reading of the statute is wrong. Wisconsin Stat. § 117.11(4) unambiguously says that the school board of either affected district may direct the holding of a referendum "following the adoption of a resolution under sub. (3)." It does not say "following the adoption of a resolution approving the petition." It simply says "following the adoption of a resolution." It is entirely clear that "a resolution" under Wis. Stat. § 117.11(3) can be either a resolution approving or denying a reorganization petition, for subsection (3) specifically requires the clerks of the affected school districts to file a certified copy of "a resolution ordering or denying the reorganization." Wis. Stat. § 117.11(3). Since "a resolution under sub. (3)" can be a resolution either approving or denying a reorganization, it follows that a school board, acting under Wis. Stat. § 117.11(4), can call for a referendum following either an approval or a denial.

Petitioner suggests that the phrase "a resolution under sub. (3)" is ambiguous because it could refer either to that subsection’s reference to "a resolution ordering or denying the reorganization," or to the reference, in the final sentence of Wis. Stat. § 117.11(3), to "a resolution ordering the detachment and attachment." Petitioner’s reading of Wis. Stat. § 117.11(3) is unreasonable. The purpose of the final sentence of that subsection is to provide the date on which a reorganization will take effect, if it is approved by the school board of each affected school district and no referendum is held. See Wis. Stat. § 117.11(3). Obviously, a sentence with that limited purpose will refer only to a resolution approving the reorganization, because there is no need for an effective date if any affected school board has passed a resolution denying the reorganization. It is unreasonable to suppose that the Legislature intended "a resolution under sub. (3)" to refer only to the reference, in the final sentence of Wis. Stat. § 117.11(3), to a resolution approving a reorganization, when it is clear that a resolution under subsection (3) can be one either approving or denying the reorganization. Such an unreasonable interpretation cannot provide the basis for finding the statute ambiguous. The plain language of Wis. Stat. § 117.11(4) unambiguously says that a school board can direct the holding of a referendum following a resolution either approving or denying a reorganization under Wis. Stat. § 117.11(3).

Even if Wis. Stat. § 117.11(4) were ambiguous, as petitioner claims, the legislative history of that section cited by petitioner does not support her position. See Petitioner’s Brief at 7-8. The Governor’s use of the partial veto power to strike the first clause of the original 1989 Wisconsin Act 114 does not in any way mean that a referendum cannot be held following a denial of a reorganization petition. See Radcliffe Affidavit Exhibit A. On the contrary, the legislative history discussed by petitioner shows conclusively that, when the Legislature wrote the act, the phrase "adoption of a resolution under sub. (3)" was meant to include resolutions denying a detachment and attachment of territory. By striking the first clause, the Governor altered the statute in such a way that the phrase "adoption of a resolution under sub. (3)" would no longer exclude approvals, in addition to denials, but he did nothing to exclude denials. Prior to the Governor’s veto, the language of the act was entirely unambiguous and the phrase in question indisputably included resolutions denying a reorganization. See Radcliffe Affidavit Exhibit A. Even if the current statutory language is ambiguous, as petitioner maintains, such ambiguity was created only by the Governor’s partial veto, and not by the language chosen by the Legislature. Recourse to the legislative history shows that the Legislature did not intend the phrase "adoption of a resolution under sub. (3)" to exclude resolutions denying a reorganization. See Radcliffe Affidavit Exhibit A. Nor is there any evidence that the Governor intended his partial veto to prohibit school boards from ordering a referendum following the denial of a reorganization. On the contrary, the only intent expressed by the Governor in his veto message was to make it possible for electors to petition for a referendum following the approval of a reorganization. See Radcliffe Affidavit Exhibit B. He said nothing about restricting the referendum process following a denial. Once again, contrary to petitioner’s claim, it is clear that a school board acting under Wis. Stat. § 117.11(4) can direct the holding of a referendum following a resolution either approving or denying a reorganization under Wis. Stat. § 117.11(3).

CONCLUSION

For the reasons stated above, respondent State of Wisconsin School District Boundary Appeal Board respectfully asks the Court to deny petitioner’s motion for summary judgment and to enter a judgment dismissing petitioner’s claims as to respondent on the grounds that respondent is neither a necessary nor a proper party to this action. Dated this _____ day of June, 2000.

JAMES E. DOYLE

Attorney General

THOMAS C. BELLAVIA

Assistant Attorney General

State Bar #1030182

Attorneys for Respondent

>br>Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-8690

bellaviatc\cases\bever\br\bever sj br 053100.doc

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AT TELECONFERNCE HEARING, JUDGE JOHN BRADY, GRANTED BOTH ATTORNYS ABOUT ONE MONTH TO PRESENT FURTHER BRIEFS

The three way telephone conference got underway after an unknown fifteen minute delay yesterday morning. There were four of us in the audience, of which two of us were reporters.

Attorney Radcliff, representing the plaintiff, Nalani Bever, requested that he be given time to prepare a Summary Judgement (What ever that is) and Judge Brady granted that request but limiting the time to May 19th. He then granted the State Attorney to until June 2nd to reply. Both documents or briefs to be in his office by June 2nd.

If I understood it right, Judge Brady then on June 9th 2000 would make a decison at that time or decide to hold a public hearing.

More details as they become available.

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TELECONFERNCE HEARING WILL BE OPEN TO THE PUBLIC
JUDGE JOHN BRADY TO MAKE FINAL DECISION.
HEARING AT 8:15am FRIDAY MAY 5th 2000