*1 this court pending before case which April 1988. Co., (Unpub-

Riley v. Home Insurance C4-87-1997) (Minn.Ct.App. Opinion

lished 11, 1988), WL

May at n. [1988 44782]. interprets the intent language quoted plain- “affect as few legislature to

of the action as causes

tiffs with unresolved added). In the (emphasis possible.” Id. case, argue cannot her Leonard

present April unresolved as of of action was

cause fully litigated had been 1988. The case had been or- jury, judgment

before

dered, of the case had been the merits resolved, and all oth- appeal and

argued on appeal had been forfeited.

er avenues case, it cannot be the facts of this

Based on belongs the class of Leonard

said that legislature intended to

plaintiffs the benefit repealer.

by means of the

DECISION correctly determined that

The trial court the time the pending at

this case was repealed. statute was

discount

AFFIRMED. SHEREK, Appellant,

Donald P.

INDEPENDENT SCHOOL DISTRICT Minnesota, 699, Gilbert, Thomas

NO. defendant,

Beste, Rule 19 Laurance defendant,

Eleven, Respon Rule 19

dents, Kriska, Rule 19 Defendant.

David

No. C8-88-1284. Minnesota. Appeals

Court

Feb. April

Review Granted Peterson, Engberg & Kaspari, L.

Richard Peterson, Minneapolis, for Sherek. *2 Overall Neff, Lager, Virginia, Neff C. & Scott Employed Rank Independent School Dist. No. for August Donald Sherek.55 1968 Halvorson, Watters, Bye, Bye, L. Donald August Laurance Eleven ... 81 1970 1975 Duluth, Maki, for Beste. August Downs & Thomas Beste.94 August David Kriska.104 1976 Robins, Engdahl, Kaplan, Brad P. Miller is dispute It not in that as a result of the Ciresi, Minneapolis, for & Eleven. IDCA, positions created, no “new” any nor did vacancies occur in the industri- Heard, considered and decided al arts area. RANDALL, P.J., and FOLEY and SCHUMACHER, JJ. 17, 1988, On March the trial court issued findings law,

its of fact and conclusions of determining that Sherek was not entitled to OPINION reinstatement. We affirm. RANDALL, Judge. Independent School District No. 699 act- ISSUE ed accordance with Minnesota law in Did the Gilbert and Eveleth school dis- denying appellant recall on based tricts act in accordance with Minn.Stat. the consolidation of the school districts 122.541, (1986) subd. 5 and Minn.Stat. § through cooperation agree- an interdistrict 125.12, (1986) in determining subd. 6b ment. appellant Sherek was not entitled to unrequested

recall from leave of absence?

FACTS undisputed. ANALYSIS essentially facts are

Appellant began teaching Donald Sherek findings may The trial court’s of fact industrial arts Gilbert school district they clearly be disturbed unless are errone- year. in the 1968/69 school At the end of ous. Minn.R.Civ.P. 52.01. an year, the 1981/82 school Sherek was appellate give court need not deference to (ULA). unrequested on leave legal the trial court’s decisions on issues. See Frost-Benco Electric Association v. later, years Four and Eveleth Commission, Minnesota Public Utilities began negotiations school districts for (Minn.1984). 358 N.W.2d 642 difficulties, merger. Because of financial the school districts entered into an interdis- litigation This a conflict involves between (IDCA). cooperation agreement trict As a two statutes. Minn.Stat. subd. IDCA, result of the a Gilbert school build- (1986) governs 6b a school district’s duties ing junior high for the became obligations and to a teacher building an Eveleth school and became the 6b(e), (f) ULA. Minn.Stat. IDCA, high. senior Before the the Gilbert (1986) operative provides is the and section school district offered five courses indus- in part: trial arts and the Eveleth school district (e) unrequested Teachers offered 18 courses in industrial arts. After leave of absence shall be reinstated to IDCA, both schools offered nine they from had which been each, courses in industrial arts with a net or, given of absence if not avail- leaves reduction or loss of five sections of indus- able, positions in to other available this July trial arts. The IDCA was effective on school district in fields which licensed. Reinstatement shall be placement inverse order on leave implementing joint After * * * absence. seniority circulated, lists were one of which Sherek, (f) appointment included two which omitted No of a new teacher available, ranking seniority him. The relative of the shall made while there is be leave, litigation prop- teachers involved in this is as teacher who erly vacancy, follows: fill licensed to such unless 846 give effect How possible, the school to both. fails to advise

the teacher irreconcilable, ever, if the her conflict his or intent return]. [of specific provision prevail and more shall instructs that teachers should This section exception as an shall be construed seniority, order of off in inverse be laid Ruiz, See Schultz v. provision. general Ber See according seniority. reinstated (1968); 281 Minn. N.W.2d 1,No. Min Special District land Air-Parts, Ex Inc. v. State rel. Interstate (Minn.1981). neapolis, N.W.2d *3 Minneapolis-St. Metropolitan Paul Air previous provision, arguably, con- Commission, 223 ports 25 N.W. Minn. 122.541, subds. 4 flicts with Minn.Stat. § (1947). Further, 2d 718 Minn.Stat. 4 the school 5. allows and Subdivision 645.17(1) (1986) presumption creates a bargaining representa- and teachers' legislature ab that the does not intend an assignment negotiate plan for to a the tive or result it enacts surd unreasonable when on employment placed of teachers ULA. or Paul, City v. See Salmen St. statute. a of 5 con- negotiation, Absent such subdivision (Minn.1979). This section 281 N.W.2d 355 in dis- rights trols teachers’ reinstatement legislature to also deems that the intends through an IDCA. This merging tricts public any private the interest favor over pertinent part: in provides, subdivision interest. negotiated compatible plans If are not * * * coop- pursuant 4 the to subdivision 6b, 125.12, Minn.Stat. subd. by erating governed shall be the districts governs rights of teachers recall Minnesota Insofar provisions of this subdivision. as general. in ULA Minn.Stat. acquired con- possible, teachers who have 122.541, rights governs of subd. recall posi- tinuing rights and whose contract in a specific teachers the circumstance of as a result tions are discontinued of multiple IDCA. 122.541 district Section coop- agreement shall be employed by a coop specifically refers to the interdistrict assigned in erating teach district or to a agreement, language eration and utilizes exchange as cooperating district teachers only IDCA. 122.541 relevant to an Section necessary, If pursuant section 125.13. to provision specific is the more of the two. discontin- teachers whose agree We with the trial court that section agreement as a result ued of excep 122.541 as an should be construed acquired continuing who contract have general provisions of sec tion to more rights shall be proper tion 125.12. find the court We trial they in leave of fields which ly applied ap 122.541 section to determine in the inverse order which are licensed rights. pellant Sherek’s reinstatement employed by cooperating the dissent relies on Ren noteWe that district, according to a seniori- combined Independent District No. strom cooperating dis- ty list of teachers (Minn. Ct.App.1986). 25 N.W.2d tricts. Renstrom did not directly is address the added). (Emphasis Naturally, appellant ar- statutory presented by construction sue 125.12 and dic- gues that controls section Renstrom, held this case. In this court should recalled tates that Sherek be to not apply that section 122.541 did because by seniority. Re- employment virtue his program the business education spondents argue that section 122.541 con- taught portion grade of a within not a placed on trols and that since Sherek was 122.541, 1. meaning of section subd. prior agreement, and ULA to the was not Id. at The court then determined 27-28. agreement, by virtue ULA apply since 122.541 not section did rights he has no to reinstatement. We schools, agreement Ren- between agreed properly hold the trial court with rights governed by strom's recall were not respondents. 122.541, subdivisions section Thus, 645.26, (1986) analyzed claim subd. the court Renstrom’s Minn.Stat. § 6b(e). Id. provisions at 29. provides two under section that where law conflict, construed, applies are in we section 122.541 the two shall be Since hold that preference teachers assert recall when IDCA to Eleven grant would be to situations, by we are not bound the lan- agree. Sherek a windfall. We Such a guage quoted in from Renstrom the dis- precisely windfall is the result subdivision sent. sought 5 of section 122.541 to avoid. agree appellant We to the extent with years prior For four to the 6b, gov- that section subdivision During was on ULA. years, those four appellant’s during erned situation the four Beste, Eleven and Eriska remained in the prior years spent he on ULA to the two employ respective active of their school dis- implementing districts IDCA. agree tricts. We with the trial court that appellant’s rights, any, recall into an give the IDCA did previously teachers IDCA district are section 122.- governed placed on ULA and party not a give interpretation 541. To literal to sec- present agreement IDCA to now essentially repeal tion 125.12 would be bump move in and presently employed applies section 122.541 it as this in- teacher. Appellant, party stance. is not a who *4 IDCA, the cannot “come out of the wood- DECISION seniority and assert work” over teachers AFFIRMED. actively employ in the of the Eveleth school solely using district because a

building district, FOLEY, appellant’s Judge in school (dissenting). when building the basis for the use of the Gilbert I respectfully majority dissent. The is the IDCA. position takes provisions the that the This is not a situation where one of two Minn.Stat. exception 122.541create an to school districts has been eliminated. Gil- provisions the of Minn.Stat. employees bert teachers remain of the Gil- right that Sherek’s to be reinstated con- bert and the same is true for Evel- by trolled section 122.541. The result of eth posi- teachers. No industrial new arts interpretation that is that less senior teach- IDCA; tions were created because of the working ers for the Eveleth school district no new industrial arts teachers hired rights positions have to in the Gilbert coopera- because of the IDCA. IDCA’s are supersede schools which the reinstatement arrangements tive between school districts. rights employed by of a teacher senior They are not total consolidations where the Gilbert school district. The Interdistrict identity separate of two or more districts Cooperation exception Act creates no such disappears and one identity brand new to the Teacher Tenure Act. emerges. Act, Cooperation Under the Interdistrict prejudice Sherek has suffered no as a employed by teachers the Eveleth school result of the He prior IDCA. was on ULA rights positions district do in have consolidation, and there he remains. Gilbert schools. an Eveleth position If a new industrial arts is now right teaching position teacher’s to a added, occurs, opening or an Sherek will supersedes right Gilbert Sherek’s to be rights have recall under section 125.12. position only reinstated to if that the Evel- Respondents concede that one of them eth teacher is more senior than Sherek. ULA, were now Sherek’s recall That is not the case here. Sherek is a rights would be senior to theirs. But until continuing contract teacher on unre- occurs, that event present Sherek has no quested by leave of absence Gilbert replace simply an Eveleth teacher school district and more senior that Ele- because the teaching Eveleth teacher is ven, Beste, and Eriska and the court so building class a Gilbert school because of assign found. To less senior Eveleth an that party IDCA Sherek was not a to. teachers to within Sherek’s licen-

Respondent argues Eleven but for sure school Gilbert district violates Eleven teaching would have a continuing Sherek’s as a contract position in grant Eveleth and to teacher. by court in the decision this

Based Independent District Marriage v. In re the of Darlene A. (Minn.Ct.App.1986), STICH, Dufeck, No. 390 N.W.2d Darlene n/k/a Sherek, teacher, I Petitioner, conclude that Appellant, to a to reinstatement should be entitled In position Gilbert schools. Ren- STICH, Respondent. Jerome C. Ashby strom, teacher in the a full-time school district No. C0-88-1523. Ashby district when leave Appeals of Minnesota. Court of pro- education discontinued its business signed gram. Ashby school board had Feb. Agreement which a Joint Powers under Ashby from were sent to Ev- students for district business school two

ansville by taught courses were an

courses. Those Renstrom, less senior teacher

Evansville should rein- argued that she have been

who those classes. This court

stated to teach reinstate- she was not entitled to

held that Minn.Stat.

ment under

6b(e), position no became available because Judge Ashby school

within the district. opinion writing joined

Huspeni, *5 Lansing Nierengarten, held:

Judges Ashby school board decided to

If the had accounting again offer class

once Ashby school eligible for reinstate-

would have been Ashby school could

ment and the hired a less senior

not have teacher courses.

teach those Here, is a

Id. at 29. Gilbert teacher position seniority,

with for which arts, licensed, secondary

he industrial

being taught in his own district. No lan- gives 122.541

guage in section less senior cooperating

teachers from another school occupy teaching posi-

district the preference

tion in to a more

senior Gilbert teacher

leave. these may

It be that statutes should be Legislature Minnesota

reviewed any conflicts that arise in these

resolve

situations, majority to hold as the does but ignore Renstrom,

here, totally is to well- of this

reasoned decision court.