Cohen v. Maine School Administrative District No. 71

393 A.2d 547, 1978 Me. LEXIS 999

• Court: Supreme Judicial Court of Maine
• Decided: November 10, 1978
• Status: Published

Opinions

ARCHIBALD, Justice.

This is the third occasion in which Mr. Cohen has appeared before this court seeking declaratory and injunctive relief in a matter involving the issuance of bonds for the construction of a new high school and reconstruction of the present high school and junior high school of M.S.A.D. 71. See Cohen v. Maine School Administrative District No. 71, Me., 369 A.2d 624 (1977); Cohen v. Ketchum, Me., 344 A.2d 387 (1975).

Mr. Cohen had asked this court to rule upon a Superior Court justice’s dismissal of Count II of his complaint and entry of judgment thereon pursuant to M.R.Civ.P. 54(b), from which he had appealed. We held that the dismissal of Count II should not have been a dismissal with prejudice. Since nothing within the record established whether or not the issuance of M.S.A.D. 71’s notes was prior to approval of the project by the Commissioner of Education, the plaintiff might have been able to amend his complaint to state a good cause of action. Cohen v. Maine School Administrative District No. 71, supra.

The Superior Court entered an order pursuant to the foregoing decision in which it granted the plaintiff twenty days in which to amend Count II of his complaint. Within the twenty days the plaintiff filed an amendment in which he alleged that although the State Board of Education had approved the proposed project of M.S.A.D. 71 on October 10, 1974, the approval had lapsed (lapse theory).

The defendants renewed their 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted. The plaintiff, however, moved to further amend Count II of his complaint in order to allege that the 1974 approval of the Board of Education had been contingent upon the fulfillment of certain specified conditions (conditional approval theory). The Superior Court denied defendants’ motion to dismiss and allowed the second amendment.

After generally denying the allegations of plaintiff’s amended complaint, the defendants filed motions for summary judgment pursuant to M.R.Civ.P. 56 and supported by an affidavit of Leo Martin, Superintendent of M.S.A.D. 71,¹ which incorporated a letter dated September 2, 1977, from H. Sawin Millett, Jr., Commissioner of the Department of Educational and Cultural Services. The justice below granted summary judgment for the defendants and directed entry of final judgment pursuant to M.R.Civ.P. 54(b), from which the plaintiff brings the present appeal.

We deny the appeal.

The sole issue on appeal is whether the presiding justice was correct in finding no genuine issue of material fact regarding the existence of an effective approval by the State Board of Education of the M.S.A.D. 71 project. We believe he was.

Lapse Theory

We can readily dispense with appellant’s lapse theory. He contends that the 1974 approval of the M.S.A.D. 71 project by the State Board of Education was no longer effective due to the passage of an unreasonable time conjoined with the policies and regulations of the State Board of Education and Department of Educational and Cultural Services that limit the validity of approvals. The letter from H. Sawin Millett, Jr., stated:

[A]ll the conditions imposed by the State Board of Education on October 10, 1974, have now been met and the project has the approval of the State Department of Educational and Cultural Services subject to review of the final plans and specifications.

This letter as a statement of the project’s continued approval according to the policies and regulations of the Department stands unrefuted. The appellant, however, asserts that the justice below erred in considering this letter because it is hearsay. Although the appellant did not move to strike the letter, within his memorandum in opposition to summary judgment he stated that the exhibits attached to ap-pellees’ supporting affidavits were “un-sworn and uncertified." Assuming this casual statement was sufficient to preserve the issue for appeal, the letter was nevertheless admissible since it is not hearsay. The letter is a legally operative document that stands by itself as the approval of the Commissioner of the Department of Educational and Cultural Services and is expressly required by statute, 20 M.R.S.A. § 3457 (see n.2 infra), in order that a school administrative district or other unit may receive reimbursement for approved school construction. Since it is the Commissioner’s act in declaring that the project has approval which is made relevant by statute, and not the truth or falsity of the statement, the letter is not hearsay. See Creaghe v. Iowa Home Mutual Casualty Co., 323 F.2d 981 (10th Cir. 1963); Gyro Brass Mfg. Corp. v. United Auto. A. & A. Imp. Wkrs., 147 Conn. 76, 157 A.2d 241 (1959); Field & Murray, Maine Evidence, § 801.3; McCormick on Evidence, § 249 (2d ed.).

Conditional Approval

Although the 1974 approval of the State Board of Education was conditioned upon M.S.A.D. 71’s compliance with three requirements, whether the conditions were in fact fulfilled was not an issue germane to the summary judgment proceeding. There is no suggestion that this approval has ever been withdrawn, amended or revised by the Board. Only the determination of the Commissioner of Education, who is statutorily charged with reviewing operative compliance of the project as approved, was relevant to absolute approval for ultimate payment. 20 M.R.S.A. § 3457.² The letter of September 2, 1977, from the Commissioner contained a statement of satisfaction with M.S.A.D. 71’s fulfillment of those conditions. Appellant did not refute this letter with any competent evidence. No material issue of fact therefore was left to be tried, and the presiding justice properly rendered summary judgment for the defendants.

The entry is:

Appeal denied.

McKUSICK, C. J., and DELAHANTY, J., did not sit.

1 . The appellant submitted a counter affidavit in which he set forth no specific facts admissible in evidence which would demonstrate the existence of a genuine issue for trial.

2 . The statutory scheme for granting authorization for state aid for school construction prior to July 1, 1977, called for the initial approval of the plan by the State Board of Education. The Commissioner of the Department of Educational and Cultural Services thereafter was charged with the responsibility for overseeing compliance with those plans. 20 M.R.S.A. § 3457 provides:

Any unit shall, before becoming eligible for school construction aid, obtain approval from the State Board of Education of the site upon which the school construction project is to be located. Failure to obtain such approval of site will make the unit ineligible for school construction aid. In addition the board shall require that all projects approved for state aid under this section shall show evidence of the need for such facilities based on obsolescence or inadequacy of present buildings, assurance that existing facilities are receiving maximum use, enrollment projection for at least a 5-year period, financial ability of the unit, utilization studies and other information including but not limited to estimates of operating costs and effectiveness of educational programs related to proposed construction. In addition, projects approved for state aid shall show evidence that spaces within proposed structures shall be assigned a specific educational purpose, or are supportive of the educational program.

20 M.R.S.A. § 3457 additionally provides:

No financial assistance shall be paid until the school construction has been completed and a full report of the cost of said construction and other expenses for major capital outlay purposes is made to the commissioner. The report shall be in such form as the commissioner shall determine . . . On the basis of all the reports on file in the office of the commissioner each year, the commissioner shali determine the total amount to be paid to all of the School Administrative Districts and other eligible administrative units, for major capital outlay purposes, and shall apportion out of moneys appropriated for this purpose, when payments are due, to the School Administrative Districts and other eligible administrative units, the same percentage of each administrative unit’s expenditures for major capital outlay purposes including principal and interest payments and any rental payments under lease agreements between the administrative units and the Maine School Building Authority as each administrative unit would be entitled to receive based on Table II of this section, (emphasis supplied)

The conditions of approval established by the Board of Education can be considered as analogous to amendments to the M.S.A.D. 71’s submitted plans, compliance with which is essential, not for approval of the project, but for eventual reimbursement.