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Hallissey v. S.A.D. # 77
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 143
Docket:	Was-99-539
on Briefs:	February 8, 2000
Decided:	July 24, 2000

Dissent:		CLIFFORD and RUDMAN, JJ.



	[¶1]  Mary Jane Hallissey appeals from the summary judgment entered
in the Superior Court (Washington County, Humphrey, J.) holding as a
matter of law that Hallissey was not residing within Maine School
Administrative District No. 77 (SAD 77) for the purpose of receiving a
tuition subsidy, pursuant to 20-A M.R.S.A. § 5204 (1983),{2} to defray the cost
of her son's tuition at a private school.  Hallissey contends that it was error
for the court to determine as a matter of law (1) that she was not residing
within SAD 77 during the years that she lived in Cape Elizabeth so that she
could attend law school, and (2) that her decision to move to Cape Elizabeth
did not constitute an exception to the residency requirement, see 20-A
M.R.S.A. § 5205(5) (1993).{3}   We disagree and affirm the judgment.
	[¶2]  The material facts are not in dispute.  Hallissey owns a house in
the Town of Whiting, a part of SAD 77.  SAD 77 does not have its own public
high school.  Pursuant to section 5204(4), SAD 77 provides a tuition subsidy
for high-school students whose parents reside within the district to attend
private schools or public schools in other districts.
	[¶3]  In November 1995, Hallissey, who was at that time living in the
Whiting home, initiated litigation against SAD 77 because it was not
providing the tuition payments for her son, Brendan, to attend John Bapst
High School in Bangor.  The issue raised in her complaint was whether
section 5204(4) required SAD 77 to authorize a subsidy of Brendan's tuition
at John Bapst High School, the private school he had elected to attend.  The
litigation was resolved by a settlement agreement, pursuant to which SAD 77
agreed to pay $3,500 annually toward Brendan's tuition to John Bapst so
long as he remained enrolled there in good standing.  In addition,
continuance of this subsidy in future school years was contingent on "Mary
Jane Hallissey's continuing status as both a legal resident of Whiting and
legal custodian of [] Brendan J. Hallissey."
	[¶4]  Several months later, at the beginning of the 1996-97 school
year, Hallissey began attending the University of Maine School of Law in
Portland.  In order to live within a reasonable commuting distance of the law
school, Hallissey and another individual purchased a home in Cape Elizabeth
in which she lived during the school years 1996-97 and 1997-98.
	[¶5]  When SAD 77 learned that Hallissey was living in Cape Elizabeth,
and had enrolled her younger son Patrick in its public schools, the District
sent a letter to her attorney requesting an explanation.  When no explanation
was provided, SAD 77 concluded that Hallissey was no longer residing in
Whiting and therefore did not list Brendan as a student eligible to receive
the subsidy to John Bapst for the 1996-97 school year.  Hallissey again
commenced litigation, this time seeking a determination of her rights
pursuant to the parties' settlement agreement.
	[¶6]  SAD 77 filed a motion for a summary judgment arguing that the
residence requirement of section 5204(4) required the parent to actually
live in the District to be eligible to receive the subsidy.  Conversely, Hallissey
filed a cross-motion for a summary judgment arguing that, pursuant to the
settlement agreement, she needed only to be a "legal resident" of the
District to be eligible for the subsidy, or in the alternative, that she was
entitled to the tuition subsidy pursuant to the "temporary residence"
exception provided by section 5205(5).  The trial court agreed with SAD
77's position that Hallissey no longer resided within the District and
determined that she was therefore not entitled to the tuition subsidy.  This
appeal followed.
	[¶7]  When considering an appeal from a summary judgment, we view
the evidence "in a light most favorable to the party against whom the
judgment was entered to determine whether the record supports the trial
court's conclusion that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law."  Cambridge Mut.
Fire Ins. Co. v. Vallee, 687 A.2d 956, 957 (Me. 1996).  A summary judgment
is appropriate when "the parties are not in dispute over the facts, but differ
only as to the legal conclusions to be drawn from those facts."  Tondreau v.
Sherwin-Williams Co., 638 A.2d 728, 730 (Me. 1994).
	[¶8]  "[A]pproved settlement agreements are binding as to matters
agreed upon . . . and principles of contract [law] govern their
interpretation."  Soucy v. Sullivan & Merritt, 1999 ME 1, ¶ 7, 722 A.2d 361,
363 (citations omitted).  "A contract is to be interpreted to effect the
parties' intentions as reflected in the written instrument, construed with
regard for the subject matter, motive, and purpose of the agreement, as well
as the object to be accomplished."  Handy Boat Service, Inc. v. Professional
Services, Inc., 1998 ME 134, ¶ 7, 711 A.2d 1306, 1308.  "The
interpretation of an unambiguous contract is a question of law . . . whereas
the interpretation of an ambiguous contract involves a question of fact."  See
United States v. Wheeler, 1999 ME 54, ¶ 9, 726 A.2d 1264, 1266.
	[¶9]  The settlement agreement into which the parties entered
demonstrates that the parties intent was to clarify their respective rights
and obligations pursuant to section 5204.  Nevertheless, Hallissey argues
that the presence of the term "legal resident" in the settlement agreement
grants her a broader right to the tuition subsidy than section 5204(4)
provides other parents who live in Whiting, i.e., she is not required to
actually live in Whiting.  She does not, however, cite to any record evidence
indicating she sought to receive a benefit in excess of the statute's provision
regarding her right to the subsidy, or that either party had any such
expectation when they entered into the settlement agreement.
	[¶10]  SAD 77, on the other hand, argues that the parties' intent when
they entered into the settlement agreement was to place Hallissey in the
same position that she would have been in had she successfully pursued her
initial cause of action.  In support of its position, SAD 77 argues that because
it is a public body it could not have entered into the settlement agreement
with the intent that the term "legal resident" would require less of Hallissey
than that of the term "reside" in section 5204(4).  As such, it could not have
acted in a manner inconsistent with and in excess of the mandate of section
5204(4) because such an agreement would be in excess of its power and
thus void.
	[¶11]  We have stated that public bodies, including school districts,
"may exercise only that power which is conferred upon them by law.  The
source of that authority must be found in the enabling statute either
expressly or by necessary inference as an incidence essential to the full
exercise of powers specifically granted."  Churchill v. S.A.D. #49 Teachers
Ass'n, 380 A.2d 186, 192 (Me. 1977); see also State v. Fin & Feather Club,
316 A.2d 351, 355 (Me. 1974).{4}   With respect to school administrative
units, Title 20-A, section 2(2) provides that "[i]t is the intent of the
Legislature that the control and management of the public schools shall be
vested in the legislative and governing bodies of local school administrative
units, as long as those units are in compliance with appropriate state
statutes."  20-A M.R.S.A. § 2(2) (1992) (emphasis added).
	[¶12]  Section 5204 expressly provides that it shall "govern the right
of secondary students to attend school in another school administrative unit
other than the one in which they are resident."  Accordingly, SAD 77 argues
that its intent when it entered in the agreement was to act in compliance
with section 5204, and thus the term "legal resident" was intended to be
synonymous with the term "reside" in the statute.  As there is no evidence
of bad faith or otherwise improper conduct by either party, we assume that
SAD 77 is correct in its assertion that the parties entered into the
settlement agreement with section 5204(4) in mind.{5}
	[¶13]  Where a contract is entered into pursuant to a statute, we have
stated that "[i]t is well recognized that [the] contract . . . is presumed to
incorporate all relevant mandatory provisions of the statute pursuant to
which it was made."  Cf. Skidgell v. Universal Underwriters Ins., 1997 ME
149, ¶ 7, 697 A.2d 831, 833.  "Existing statutes governing the subject
matter of a contract must in normal circumstances be read as a constituent
part thereof."  Id.  As the parties' intent when they entered into the
settlement agreement was to set forth their respective rights and
obligations pursuant to section 5204(4), we must determine the meaning of
the statute's provision that the district in which a student's parents
"reside" shall subsidize the student's tuition.  See 20-A M.R.S.A. § 5204(4)
	[¶14]  We review questions of statutory construction de novo.  See City
of Saco v. Pulsifer, 2000 ME 74, ¶ 5, 749 A.2d 153, 154.  When construing a
statute, "we look to the plain meaning of the language to give effect to the
legislative intent."  Fairchild Semiconductor Corp. v. State Tax Assessor,
1999 ME 170, ¶7, 740 A.2d 584, 587 (quoting Koch Refining Co. v. State
Tax Assessor, 1999 ME 35, ¶ 4, 724 A.2d 1251, 1252-53).  In so doing, "we
consider the whole statutory scheme for which the section at issue forms a
part so that a harmonious result, presumably the intent of the Legislature,
may be achieved."  See id. (quoting Estate of Whittier, 681 A.2d 1, 2 (Me.
	[¶15]  Section 5204 requires that the district in which the student's
parent resides shall provide the tuition subsidy.  See 20-A M.R.S.A. § 5204
(1983).{6}  Given its ordinary meaning, the term "reside" means "to live in a
place for a permanent or extended time."  Webster's II:  New riverside
university dictionary 1000 (1984).  Other courts that have discussed the
meaning of the term within this statutory context also appear to require
something more than owning a home within a district.  See, e.g., School
Dist. No. 16-R Umatilla County v. McCormmach, 392 P.2d 1019, 1022 (Or.
1964) (stating that for school purposes the term "residence" signifies the
place where one lives with some degree of permanency); Anderson v.
Breithbarth, 245 N.W. 483, 487 (N.D. 1932) (construing statute based on
residence of the child, and stating that "residing in district" means the
actual residence of the child), cited with approval in Lapp v. Reeder Pub.
Sch. Dist. No. 3, 491 N.W.2d 65, 68 (N.D. 1992); Lisbon Sch. Dist. No. 1 v.
Landaff Town Sch. Dist., 74 A. 186, 187 (N.H. 1909) (noting that the term
"resides" is the actual place where a student lives, not where the student
has a legal domicile).
	[¶16]  In addition to the plain meaning of the term "reside," we find
that the Legislature's objective with respect to the education of the children
of the State of Maine supports our interpretation.  The Legislature endeavors
to ensure that each child will be entitled to an opportunity to receive a free
public education,{7} not to guarantee children a free education at any public or
private school of their choice.  Within the statutory scheme, section
5204(4)'s function is limited to authorizing the provision of tuition subsidies
to the parents of children who live within school administrative units that
simply do not have the resources to operate a public school system, and
whose children would otherwise not be given an opportunity to receive a
free public education.
	[¶17]  Thus, our view that section 5204(4) limits the tuition subsidy to
students whose parents actually reside in such districts does not stray from
the Legislature's objective to provide each eligible person an opportunity to
receive a free public education.  The present case serves to illustrate this
point, as each of Hallissey's sons was eligible to receive a free public
education in Cape Elizabeth.  Accordingly, we read section 5204(4) to
indicate a legislative intent that to "reside" within a district for purposes of
satisfying the requirements of the statute, one must actually live there.
	[¶18]  We turn next to Hallissey's argument that when she moved to
Cape Elizabeth, she continued to be entitled to the tuition subsidy pursuant
to a "temporary residence" exception granted to parents who move from
place to place as a result of their employment, see 20-A M.R.S.A. § 5205(5)
(1993).  Contrary to her assertion, however, we do not believe this
exception applies to individuals in situations similar to that of Hallissey.
	[¶19]  Section 5205(5)'s objective is to permit parents who hold
positions that truly require movement "from place to place" as a part of
their employment, e.g., sales positions or other migratory positions such as
farm workers, to establish a temporary residence in each district to which
they are required to move.  In other words, section 5205(5) applies only to
individuals who hold employment positions in which travel is a part of the
job description.  Making a career decision to go to law school in Portland
did not require Hallissey to move from place to place.  Instead, Hallissey's
decision to attend law school in Portland required only one move, from
Whiting to the Portland area.
	[¶20]  Hallissey vacated her Whiting home and moved to Cape
Elizabeth.  There she purchased and lived in a home during the three years
while she attended law school.  She was not moving from place to place
because of her employment.  To the contrary, she was maintaining a stable
residence in Cape Elizabeth because of her decision to make a career
	[¶21]  Moreover, permitting individuals in Hallissey's situation to avail
themselves of the benefit provided by section 5204, which provides for the
tuition subsidy, merely by virtue of owning a property in a town to which
they occasionally return, opens the door to potential abuse.  Hallissey's view
would permit any parents who own a property in a district without a public
school to claim that property as their "legal residence" and then assert that
they must move from place to place because they actually reside in another
town that is closer to their place of employment, which is located in a
distant part of the state.  To allow such individuals to claim a tuition subsidy
pursuant to sections 5204 and 5205(5) is simply an abuse of the provisions. 
We do not believe the Legislature intended those provisions to be so applied.
	[¶22]  As it is evident that Hallissey was not residing in Whiting while
she was attending law school in Portland, and that her decision to attend
law school in Portland did not require her to move from place to place for
the purpose of her employment, the trial court did not err when it
determined as a matter of law that she was not entitled to the tuition
subsidy for her son during that period of time.
	The entry is:
			Judgment affirmed.


CLIFFORD, J., with whom RUDMAN, J., joins, dissenting.

	[¶23]  I agree that because the historical facts in this case are not in
dispute, that the entry of summary judgment is appropriate.  See Tondreau
v. Sherwin-Williams Co., 638 A.2d 728, 730 (Me. 1994).  Our review of that
judgment is de novo, see Burdzel v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d 573,
575, and my review of the facts and the law leads me to conclude that Mary
Jane Hallissey remained an actual resident of Whiting, and that summary
judgment should have been entered in her favor.
	[¶24]  Hallissey is a mother who is attempting to better herself
through a legal education.  The University of Maine School of Law is located
in Portland.  One cannot commute there from Whiting.  As do other students
who attend post secondary or graduate schools away from home, Hallissey
took a temporary residence in the Portland area for the purpose of attending
law school.  As a mother charged with the care of a younger child, naturally
she took her younger son Patrick to live with her for part of the school year
in her temporary residence in Cape Elizabeth.
	[¶25]  Hallissey's actual residence, however, remained in Whiting. 
The term "actual residence" means "a real residence, a residence existing
in truth."  City of Marlborough v. City of Lynn, 176 N.E. 214, 215 (Mass.
1931).  I disagree with the Court's conclusion that Hallissey vacated her
Whiting home.  In fact, Hallissey maintains an actual residence in Whiting,
where she lives, except when attending law school, owns a home, is
registered to vote, registers her vehicles, and docks her boats.  Hallissey
testified that she frequently returned to Whiting throughout the academic
year and that she worked in Whiting during her summer breaks.  She was in
the Portland area only when law school was in session.
	[¶26]  The Court concludes that 20-A M.R.S.A. § 5204(4) (1993) was
not intended to give parents a choice between two School Administrative
Districts.  Title 20-A, section 5205(5), however, specifically allows a parent,
who establishes a temporary residence because of employment, to school
her children in either the District of her permanent residence or the
District of her temporary residence.  See 20-A M.R.S.A. § 5205(5) (1993).{8} 
The statute does not require the parent to choose the same District for all
her children, and indeed is not to "be construed to abridge [a] student's
rights in the school administrative district unit where the student
permanently resides."  Id.  The student in this case is Brendan, and his
unquestioned permanent residence is Whiting.  See id.
	[¶27]  The District has a clear obligation pursuant to section 5204(4)
and the Agreement, to pay tuition for Brendan's attendance at John Bapst
High School.  Hallissey has a right to attend law school and to temporarily
reside in the Portland area, and to have her son Patrick attend school in
Cape Elizabeth when he temporarily resides there.  See 20-A M.R.S.A.
§ 5205(5).  Such should not result in her losing her status as a resident of
Whiting any more than college students lose their status as residents of their
home towns.
	[¶28]  I would vacate the judgment of the Superior Court and remand
for entry of a judgment in favor of Hallissey.

Attorney for plaintiff: Francis J. Hallissey, Esq. P O Box 436 Machias, ME 04654-0436 Attorneys for defendant: Deirdre M. Smith, Esq. Hugh G. E. MacMahon, Esq. Drummond Woodsum & MacMahon P O Box 9781 Portland, ME 0404-5081
FOOTNOTES******************************** {1} . Mary Jane Hallissey brings this action as parent and next friend of Brendan J. Hallissey. {2} . Section 5204 provides in pertinent part as follows: The following provisions govern the right of secondary students to attend school in another school administrative unit other than the one in which they are resident. . . . . 4.No secondary school. Secondary students whose parents reside in a unit which neither maintains a secondary school nor contracts for secondary school privileges may attend a private school approved for tuition purposes, a public school in an adjoining unit which accepts tuition students, or a school approved for tuition purposes in another state or country upon permission of officials of the receiving school. The school administrative unit where the students' parents reside shall pay tuition in the amount up to the legal tuition rate as defined in chapter 219. {3} . Section 5205(5) provides as follows: 5. Temporary Residence. A student who temporarily resides in a school administrative unit shall be considered a resident of that school unit if the student is living with a parent, who because of employment, moves from place to place. This subsection may not be considered to abridge that student's rights in the school administrative unit where the student permanently resides. {4} . Other courts have also recognized that public bodies such as school districts are creations of state legislatures and are therefore of limited authority to act. See, e.g., Miller v. Board of Educ., Unified Sch. Dist. No. 470, 744 P.2d 865, 868 (Kan. Ct. App. 1987), aff'd 752 P.2d 113 (Kan. 1988). In Miller, a Kansas court stated that, [a] school district has only such power and authority as is granted by the legislature and its power to contract . . . is only such as is conferred either expressly or by necessary implication. . . . A municipal corporation cannot bind itself by any contract beyond the scope of its powers, and anyone contracting with the corporation is deemed to know the corporate limitations in this respect. Thus, any attempt by a board of education to contract for terms violating specific statutory terms would be ultra vires and void. Id. {5} . Although we do not conclude that SAD 77 entered into the settlement agreement with the intent to act in excess of its authority, it is questionable whether such an agreement would even be enforceable. It is well settled that notice of the limitations on a public body's power to contract is imputed to the individual with whom the public body makes the contract. See McQuillin Mun. Corp. § 29.04 (3rd ed. rev. 1999). Mcquillin states that, The municipal corporation cannot in any manner bind itself by any contract which is beyond the scope of its powers. . . . A contrary doctrine would be fraught with danger. It is better that the innocent contracting party suffer from the municipality's mistakes than to adopt rules which, through improper combination or collusion, could be detrimental or injurious to the public. Id. {6} . Notably, section 5204 does not require the District to subsidize the tuition of students whose parents "own a residence" or "are domiciled" in the district. {7} . 20-A M.R.S.A. § 2(1) (1992) sets forth the State's policy on public education as follows: In accordance with the Constitution of Maine, Article VIII, the Legislature shall enact the laws that are necessary to assure that all school administrative units make suitable provisions for the support and maintenance of the public schools. It is the intent of the Legislature that every person within the age limitations prescribed by state statutes shall be provided an opportunity to receive the benefits of a free public education. (Emphasis added.) {8} . Section 5205(5) states: 5. Temporary Residence. A student who temporarily resides in a school administrative unit shall be considered a resident of that school unit if the student is living with a parent, who because of employment, moves from place to place. This subsection may not be construed to abridge that student's rights in the school administrative unit where the student permanently resides. 20-A M.R.S.A. § 5205(5) (1993). This section applies to Hallissey's situation as her move to Cape Elizabeth to attend law school is directly related to her employment.