Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

On March 24, 1999, the [Unnamed] School District (the District) filed a Motion to Dismiss the Due Process proceeding, along with supporting affidavits, on the grounds that [Student] was not a resident of the District and that the District accordingly had no duty to provide FAPE pursuant to sec 115.80, Stats. On March 26, 1999, [Student], by Attorney Elvis Banks, filed a response. The parties do not dispute that [Student] has no standing to bring a due process hearing if she is not a resident of the District. The parties do dispute whether or not [Student] resides within the District.

Wisconsin Statutes define the "local educational agency" as the school district in which the child resides. §§ 115.76 (10), Wis. Stats. Wisconsin Statutes allow parents to commence due process proceedings; however, they are only allowed to do so against the local educational agency, i.e. the district in which the child resides. § 115.80(1)(a), Wis. Stats."Residency" is not specifically defined for purposes of Chapter 115, Stats. In general "residence" means "living in a particular locality." Black’s Law Dictionary, 5^th Ed.

Further, Federal Courts have held that it is proper under I.D.E.A. to grant a motion for summary judgment when a student is not "living in nor physically present" in the District within which the due process hearing request was made. Joshua W.v. Board of Education of Wichita USD. NO. 259, 29 IDELR 339 (1998).

A motion to dismiss supported by affidavits is to be treated as a motion for summary judgment under sec 802.02, Stats. (see: sec 802.06(2), stats.)

In reaching the decision on the Motion the Administrative Law Judge has applied the standard methodology as described by the Wisconsin Supreme Court.

The first step of the standard methodology used by a trial court when faced with a motion for summary judgment requires the court to examine pleadings to determine whether a claim for relief has been stated and a material issue of fact presented; if a claim for relief has been stated, inquiry then shifts to the moving party’s affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment.

If the moving party has made a prima facie case for summary judgment, the court must examine affidavits and other proof of the opposing party to determine whether there exists disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn sufficient to entitle the opposing party to trial. Voss v. City of Middleton, 470 N.W.2d 625, 162 Wis.2d 737 (1991).

Further, construction of a statute is an issue of law and can therefore be properly dealt with by summary judgment. Lange v. Kurtz 301 N,W,2d 262, 100 Wis.2d 40 (Ct. App. 1980).

The District has not established a prima facie case establishing that [Student] is not a resident of the District. There are disputed issues of material fact present in the submissions of the District. Specifically, the submissions indicate that Mr. XXXXX consistently maintained that both [Mother] and [Student] had just left his residence at the time he was interviewed by District’s representatives. While Mr. XXXXX’s statements seem highly unlikely, they do establish a disputed fact that requires a determination of the credibility of Mr. XXXXX and the other parties. A reasonable inference of Mr. XXXXX’s statements is that [Student] resides within the District. However, the District has established that the address at [Address deleted], Glendale is a subsidized HUD housing facility available only to elderly and disabled persons. It is clear from the undisputed portions of the record established by the District that if [Student] is living with Mr. XXXXX that she is doing so unlawfully and in violation of the terms of Mr. XXXXX’s lease. Mr. XXXXX should be aware that his testimony may have some impact on his continued residency at the facility.

Because the submissions of the District do not establish a prima facie case that [Student] is not a resident of the District, the Administrative Law Judge (ALJ) does not consider the submissions of [Student]. It should be noted that these submissions were also not presented in the form of a sworn affidavit. Any testimony presented at hearing must be sworn under oath under penalty of perjury .

While there is a disputed issue as to the residency of [Student], the record established by the District suggests that it is unlikely that [Student] is a lawful resident of the District. Accordingly, in the interest of administrative efficiency, hearing in this matter will be bi-furcated so that only the residency issue will be addressed at the hearing set for Tuesday, March 30, 1999. The request of Attorney Banks to convene the hearing at 1:00 p.m. on that date is, accordingly, granted.

WHEREFORE IT IS HEREBY ORDERED, that the Motion to Dismissed is DENIED.