MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
Decision: 2019 ME 115
Docket:   Yor-18-518
Argued:   June 12, 2019
Decided:  July 18, 2019

Panel:       SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HUMPHREY, JJ.



                                THORNTON ACADEMY et al.

                                                  v.

                             REGIONAL SCHOOL UNIT 21 et al.


GORMAN, J.

         [¶1] Regional School Unit 21 and the Board of Regional School Unit 21

(collectively, RSU 21) appeal from a judgment entered by the Superior Court

(York County, Douglas, J.) on a complaint filed by Thornton Academy and

residents of Arundel1 in connection with RSU 21’s decision not to allow Arundel

middle school students to attend Thornton Academy at public expense. RSU 21

contends that the court misinterpreted 20-A M.R.S. § 1479 (2018) to allow




   1 Aside from Thornton Academy, the plaintiffs are thirty-one Arundel residents who are parents
or guardians of school-age children: Ken Levesque, Angie Levesque, Pam Roche, Dan Roche, Diane C.
Robbins, Melissa Whall, Nicholas LeBlanc, Michelle LeBlanc, Erica Brochu, Luke Brochu, Noel Holmes,
Judite Holmes, Sara-Kate Beaulieu, Jesse Carll, Wendy Carll, Darrel Speed, Meredith Speed, Scott Lilly,
Jane Lilly, Kevin Mackell, Salena Mackell, Jeff Martel, Carrie Martel, Robert Mills, Mike Pelletier,
Tammy Pelletier, E. Paul Raymond, Kyle Shaw, Kelly Shaw, Michael Woods, and Jaye Woods.
2

middle school students who live in Arundel to attend Thornton Academy at

public expense. We affirm the judgment.

                                         I. BACKGROUND

        [¶2] On April 6, 2016, Thornton Academy and the Arundel residents

instituted an action against RSU 21 in the Superior Court after RSU 21 decided

that all Arundel public middle school students must attend the Middle School

of the Kennebunks (MSK) in Kennebunk and that public funds cannot be used

for those students to attend Thornton Academy in Saco. Thornton Academy

and the Arundel residents sought a declaratory judgment that RSU 21

incorrectly interpreted and applied 20-A M.R.S. § 1479(3)(A) in making its

decision, see 14 M.R.S. § 5954 (2018), and they sought review of RSU 21’s

decision on the same basis pursuant to M.R. Civ. P. 80B.2                                    RSU 21

counterclaimed solely against Thornton Academy, seeking a declaratory

judgment that RSU 21 correctly interpreted section 1479(3)(A).




    2Thornton Academy and the Arundel residents also alleged that RSU 21 was equitably estopped
from denying middle school students the ability to attend Thornton Academy at public expense based
on the Arundel residents’ reliance on RSU 21’s prior representations in a local referendum. The court
granted RSU 21’s motion to dismiss the equitable estoppel claim as to Thornton Academy and denied
RSU 21’s motion to dismiss the equitable estoppel claim as to the Arundel residents. The court also
denied RSU 21’s motion to dismiss the M.R. Civ. P. 80B claim. The parties later agreed to defer
consideration of the equitable estoppel count as to the Arundel residents until the declaratory
judgment and Rule 80B claims were resolved. The court eventually dismissed the equitable estoppel
claim as moot given its disposition of the other claims. These decisions are not at issue in this appeal.
                                                                              3

      [¶3] The court made the following findings of fact based on the parties’

stipulated record.   In 2006, the Arundel School Department (ASD), with

referendum approval, entered into a ten-year contract with Thornton Academy

that called for all Arundel students in grades six through eight to attend

Thornton Academy. After school reorganization legislation was enacted in

2007, see P.L. 2007, ch. 240, § XXXX-13 (effective June 7, 2007), the ASD merged

with Maine School Administrative District 71 to form RSU 21, effective

July 1, 2009. MSK is in RSU 21. RSU 21 declined to execute a new contract with

Thornton Academy and, in March of 2016, three months before the contract

expired, RSU 21 adopted a resolution identifying MSK as the only publicly

funded middle school and denying the students the ability to attend Thornton

Academy at public expense.

      [¶4] The court concluded—as to both the declaratory judgment claims

and the Rule 80B action—that, pursuant to 20-A M.R.S. § 1479(3)(A), RSU 21

must continue to allow Arundel middle school students to attend Thornton

Academy at public expense. The court denied RSU 21’s subsequent motion to

amend and to reconsider the judgment. See M.R. Civ. P. 52(b), 59(e). RSU 21

appeals.
4

                                   II. DISCUSSION

      [¶5]    RSU 21 challenges the court’s interpretation of 20-A M.R.S.

§ 1479(3)(A) to require RSU 21 to continue to allow Arundel middle school

students to attend Thornton Academy at public expense, notwithstanding the

expiration of the contract. We interpret section 1479 de novo as a matter of

law, starting with the plain language of the statute as the best indicator of the

Legislature’s intent. See Wawenock, LLC v. Dep’t of Transp., 2018 ME 83, ¶ 7,

187 A.3d 609; Me. Sch. Admin. Dist. No. 37 v. Pineo, 2010 ME 11, ¶ 16,

988 A.2d 987. Unless the statute itself suggests a contrary legislative intent, we

give words in a statute their “plain, common, and ordinary meaning, such as

people of common intelligence would usually ascribe to them.” S.D. Warren Co.

v. Bd. of Envtl. Prot., 2005 ME 27, ¶ 15, 868 A.2d 210 (quotation marks omitted).

If the plain language is unambiguous, we interpret the statute according to that

language alone, “unless the result is illogical or absurd.” Wawenock, LLC,

2018 ME 83, ¶ 7, 187 A.3d 609 (quotation marks omitted). If the language is

ambiguous—that is, if it is reasonably susceptible to multiple interpretations—

we will consider other indicia of the Legislature’s intent in enacting it, including

its legislative history. Id. ¶¶ 7, 15.
                                                                                 5

      [¶6] By constitutional and statutory mandate, every municipality in

Maine must provide for a free public education from kindergarten through

grade twelve for all children whose parents reside in that municipality.

Me. Const. art. VIII, pt. 1, § 1; 20-A M.R.S. §§ 2, 1451, 1479, 5202(2) (2018); see

Sch. Admin. Dist. No. 1 v. Comm’r, Dep’t of Educ., 659 A.2d 854, 857 (Me. 1995).

In light of the geographic limitations on and the financial burdens created by

such a requirement, however, the Legislature has long permitted any school

district that has no school of its own to satisfy the public education requirement

by alternative means—(1) by contracting with a public school in another school

district or a private school that meets certain requirements (a school privileges

contract), see 20-A M.R.S. §§ 2701-2703, 2951, 5203(3), 5204(3) (2018);

R.S. ch. 41, § 105 (1954); R.S. ch. 15, § 62 (1904), or (2) by allowing parents to

choose another district’s public school or an approved private school for their

children to attend at public expense in the absence of a school privileges

contract (school choice), see 20-A M.R.S. §§ 2951, 5203(4), 5204(4) (2018);

R.S. ch. 41, § 107 (1954); R.S. ch. 15, § 63 (1904).
6

        [¶7] The statute at issue here—20-A M.R.S. § 1479—has provisions

regarding both school privileges contracts and school choice as applied to

public educational programming within RSUs:3

        § 1479. Program

               A regional school unit shall maintain a program that includes
        kindergarten to grade 12 except for the school administrative
        districts that did not operate kindergarten to grade 12 that were
        reformulated into regional school units in accordance with Public
        Law 2007, chapter 240, Part XXXX, section 36, subsection 12, as
        amended by Public Law 2007, chapter 668, section 48.

              1. Secondary school. A secondary school facility may be
        operated as a 4-year school, as a 6-year school for grades 7 to 12 or
        as 2 or more 3-year schools, except that students living in an area
        remote from a public school may be provided for under section
        5204.

               2. Contracts for secondary school programs. In addition
        to the provisions for a secondary school facility set forth in
        subsection 1, a regional school unit may contract with a nearby
        regional school unit or with a private school approved for tuition
        purposes for all or some of its secondary school students. The
        contract may run from a period of 2 to 10 years. The contract must
        also comply with section 2703 and may provide for the formation
        of a joint committee in accordance with section 2704. A regional
        school unit in which a previous education unit has contracted for
        secondary school programs is bound by the terms of that contract,
        unless otherwise negotiated by the parties.

             3. Expiration of contract. After July 1, 2008, if a contract
        between a previous education unit and another previous education

    3An RSU is one of several types of school administrative units (SAUs), each of which is governed
by a separate collection of statutes in title 20-A. See 20-A M.R.S. § 1(26) (2018).
                                                                        7

unit or a private school approved for tuition purposes expires, and
the previous education unit that was the sending unit is a member
of a regional school unit under this chapter, the provisions of this
subsection apply.

      A. If the option of attending a public school in another school
      administrative unit or a private school approved for tuition
      purposes subject to chapter 219 was available to students in
      the previous education unit, that option continues to be
      available to students who reside in the municipalities that
      composed the previous education unit after the
      municipality’s inclusion in the regional school unit.

      B. The regional school unit may negotiate a new contract
      pursuant to chapter 115.

      4. Absence of contract; maintenance of school choice
opportunities.      A school administrative unit that neither
maintains a school nor contracts for school privileges pursuant to
chapter 115 shall continue to pay tuition, in accordance with
chapter 219, for a student who resides in the school administrative
unit at the public school or the private school approved for tuition
purposes of the parent’s choice at which the student is accepted,
calculated in accordance with subsection 5.

      5. Additional expense. In a regional school unit where
some but not all of the students are attending school pursuant to
this section, the sending municipality is responsible for the
additional expense as calculated in accordance with this
subsection.

      A. For each secondary school student who attends a public
      school in another school administrative unit, the sending
      municipality in a regional school unit is responsible for an
      amount equal to the difference in tuition in cases when it
      exceeds the amount of the regional school unit’s tuition rate
      calculated in accordance with section 5805.
8

               B. For each secondary school student who attends a private
               school approved for tuition purposes subject to the
               provisions of chapter 219, the sending municipality in a
               regional school unit is responsible for an amount equal to the
               difference in tuition in cases when it exceeds the amount of
               the regional school unit’s tuition rate calculated in
               accordance with section 5805.

       Municipalities exercising school choice pursuant to this section are
       responsible for a local contribution in accordance with section
       15688 and the additional expense calculated in accordance with
       this subsection.

       [¶8] The portion of section 1479 that we must interpret is subsection 3,

which applies upon the expiration of a previously existing contract between a

“previous education unit” and another previous education unit or an approved

private school.4 20-A M.R.S. § 1479(3). There is no dispute that the ASD was a

previous education unit that had a contract with Thornton Academy—an

approved private school; that contract expired after July 1, 2008; and the ASD

is now part of RSU 21. Subsection 3 therefore applies.

       [¶9]     Subsection 3(B) states that, upon the expiration of a school

privileges contract, the RSU may enter into a new contract.                           20-A M.R.S.

§ 1479(3)(B). Here, RSU 21 elected not to renegotiate the contract with


    4 A “[p]revious education unit” is defined as “a state-approved unit of school administration that

was responsible for operating or constructing public schools prior to the reorganization of school
administrative units pursuant to chapter 103-A.” 20-A M.R.S. § 1(20-A) (2018). This definition refers
to the school reorganization legislation enacted in 2007, of which section 1479 was a part. P.L. 2007,
ch. 240, § XXXX-13 (effective June 7, 2007) (currently codified at 20-A M.R.S. §§ 1451-1512 (2018)).
                                                                             9

Thornton Academy. Subsection 3(A) states that, upon the expiration of a school

privileges contract (and presumably in the absence of a renegotiated contract),

students continue to enjoy a certain “option” if they have previously enjoyed

that option. 20-A M.R.S. § 1479(3)(A). This appeal turns on precisely what

“option” subsection 3(A) preserves.

      [¶10] RSU 21 argues that subsection 3(A) must be narrowly construed

so that “option” means only school choice, that is, if students were allowed to

select any public or approved private school before school reorganization in

line with 20-A M.R.S. §§ 5203(4) and 5204(4), those students would continue

to have school choice after their previous education unit joined an RSU.

Because all Arundel middle school students who wished to receive a publicly

supported education were required to attend Thornton Academy pursuant to

the ASD’s contract with Thornton Academy, RSU 21 asserts, Arundel’s students

never had school choice. RSU 21 further asserts that because the students were

never afforded an “option”—as in, a choice between at least two alternatives—

as subsection 3(A) provides, RSU 21 has no obligation to afford them school

choice now that the school privileges contract with Thornton Academy has

expired.
10

         [¶11] By its plain terms, subsection 3 applies only when a school

privileges contract expires. 20-A M.R.S. § 1479(3). Thus, according to RSU 21’s

interpretation, subsection 3(A) could apply only when the municipality both

contracted for school privileges and the students enjoyed school choice. Based

on this reading of the statute, RSU 21 suggests that subsection 3(A) applies only

when the expired contract was nonexclusive, i.e., when a school privileges

contract allowed for some of an SAU’s students to attend a particular school,

but other students were afforded school choice.

         [¶12] Assuming such arrangements exist and are permitted by statute,5

RSU 21’s proposed interpretation strays far from the plain meaning of section

1479, which contains no language supporting any distinction in result based on

the terms of the particular expired contract, whether exclusive or nonexclusive,

or otherwise.        See Joyce v. State, 2008 ME 108, ¶ 11, 951 A.2d 69 (“In

determining the plain meaning of words, we will not imply limitations where



     5The statute provides for school choice when an SAU “neither maintains an elementary school
nor contracts for elementary school privileges” elsewhere. 20-A M.R.S. § 5203(4) (2018); see
20-A M.R.S. § 5204(4) (2018) (stating the same as to secondary schools); see also 20-A M.R.S. § 1(10)
(2018) (defining “[e]lementary school” to include kindergarten through eighth grade). We express
no opinion on whether school privileges contracts and school choice are in any way mutually
exclusive. See Op. Me. Att’y Gen. (Aug. 29, 1977). We have, however, recognized circumstances in
which a school district has contracted with more than one school at a time, such that each contract
was nonexclusive given the existence of another contemporaneous contract. Me. Cent. Inst. v.
Inhabitants of Palmyra, 139 Me. 304, 305, 309, 30 A.2d 541 (1943). In the Palmyra decision, we held
that because the students were subject to the school privileges contracts, they were not permitted to
also exercise school choice. See id. at 309-10.
                                                                               11

none appear.”). Because subsection 3 is meant to address what happens

whenever a school privileges contract expires, RSU 21’s interpretation also

leaves an obvious gap in the statute. Subsection 3(B) allows for the execution

of a new contract. Subsection 3(A) addresses what happens when no new

contract is executed. If subsection 3(A) applies only upon the expiration of a

nonexclusive contract, subsection 3 makes no provision for what happens upon

the expiration of an exclusive contract when no new contract is executed.

      [¶13] As part of our plain language review, we must also consider section

1479(3)(A) in conjunction with section 1479(4).          Subsection 4, entitled,

“Absence of contract; maintenance of school choice opportunities,” states

that when an SAU has no school and does not contract for school privileges, the

SAU “shall continue to pay tuition, in accordance with chapter 219, for a student

who resides in the school administrative unit at the public school or the private

school approved for tuition purposes of the parent’s choice at which the student

is accepted.” 20-A M.R.S. § 1479(4). RSU 21 agrees that, by this language,

subsection 4 refers to school choice, and it is therefore subsection 4 that allows

school choice for students who have enjoyed school choice before. RSU 21’s

interpretation of subsection 3(A)—by which subsection 3(A) means the same

thing—would render either subsection 3(A) or subsection 4 surplusage. This
12

is a result we cannot abide. See Cobb v. Bd. of Counseling Prof’ls Licensure,

2006 ME 48, ¶ 11, 896 A.2d 271 (“All words in a statute are to be given meaning,

and none are to be treated as surplusage if they can be reasonably construed.”).

      [¶14] In short, RSU 21’s proposed construction derives little support

from the plain language of the statute, creates an illogical gap in application,

and renders some statutory language surplusage. We take care to avoid any

interpretation that suffers from such infirmities.       See Wawenock, LLC,

2018 ME 83, ¶ 7, 187 A.3d 609; Cobb, 2006 ME 48, ¶ 11, 896 A.2d 271.

      [¶15] We therefore reject RSU 21’s strained reading of the term “option”

in favor of the construction suggested by Thornton Academy and the Arundel

residents, who urge us to interpret section 1479(3)(A) as the Superior Court

did—to apply whenever any school privileges contract expires and is not

renewed or renegotiated. Regardless of whether the school privileges contract

gave students a single option of attending a public school in another school

district or an approved private school, or a choice between two or more such

schools, subsection 3(A) applies to preserve the students’ right to attend the

former contract school. By this interpretation, “option” is given its common and

ordinary meaning: “opportunity to,” “ability to,” or “right to.” See Option,

New Oxford American Dictionary (3d ed. 2010) (defining “option” as “the
                                                                                                    13

freedom, power, or right to choose something”); S.D. Warren Co., 2005 ME 27,

¶ 15, 868 A.2d 210.              Because Arundel middle school students had the

opportunity to attend Thornton Academy at public expense before the

expiration of the contract, the plain language of section 1479(3)(A) requires

RSU 21 to provide that option after the expiration of the contract.6 This

construction also fills the lacuna that would be created by RSU 21’s

interpretation because it covers all of the possibilities existing upon the

expiration of the contract, no matter the particular terms of the contract: a new

contract can be executed (subsection 3(B)) or the parties may continue with

the status quo, this time by operation of law rather than by operation of

contract (subsection 3(A)).

       [¶16] RSU 21’s primary objection to this construction is its far-reaching

effect; RSU 21 suggests that, because there is now a public middle school

otherwise located within RSU 21, section 1479 should not be interpreted to

allow Arundel middle school students to attend Thornton Academy at public

expense in perpetuity in the absence of any contractual arrangement to that


   6 Because we interpret section 1479(3)(A) to provide the remedy sought by Thornton Academy
and the Arundel residents in their declaratory judgment and Rule 80B claims, we conclude that the
equitable estoppel claim, which seeks the same remedy, continues to be moot. See Anthem Health
Plans of Me., Inc. v. Superintendent of Ins., 2011 ME 48, ¶¶ 5, 7, 18 A.3d 824 (explaining that an issue
is moot when “there is no real and substantial controversy” and the decision “would result in no
practical effect”) (quotation marks omitted)).
14

effect. We agree with RSU 21’s assertion that section 1479(3) contains no

language supporting any temporal limitation on its application, and we

acknowledge that the effect may undermine RSU 21’s attempt to consolidate

the public education of the children living within the RSU.        It is for the

Legislature, however, to consider such a result from a public policy perspective;

we cannot ignore the plain language of the statute based on a dispute about the

advisability of the underlying policy decisions.      See Smith v. Hawthorne,

2006 ME 19, ¶ 42, 892 A.2d 433 (Levy, J., dissenting) (“[T]he Constitution

entrusts the exclusive authority for the adoption of statutory law with the

Legislature because it is the branch of government best suited to undertake the

investigation, fact-finding, and analysis needed to establish policies that

account for social interests that are much broader than the narrow, personal

interests of the parties to a lawsuit.         Accordingly, the Legislature’s

determination of public policy is binding on the courts so long as it is within

constitutional limits.”).

      The entry is:

                   Judgment affirmed.
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Richard A. Spencer, Esq. (orally), Melissa A. Hewey, Esq., and David M. Kallin,
Esq., Drummond Woodsum, Portland, for appellants Regional School Unit 21
and the Board of Regional School Unit 21

Ronald W. Schneider Jr., Esq. (orally), Sara Hellstedt, Esq., and Tara A. Walker,
Esq., Bernstein Shur, Portland, for appellees Thornton Academy et al.


York County Superior Court docket number CV-2016-86
FOR CLERK REFERENCE ONLY
