Torin Misko v. State of Wisconsin Department of Public Instruction

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 27, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1810 Cir. Ct. No. 2021CV1002

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

TORIN MISKO AND AUTUMN MISKO,

PLAINTIFFS-RESPONDENTS,

V.

STATE OF WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION,

DEFENDANT-APPELLANT,

WEST ALLIS - WEST MILWAUKEE SCHOOL DISTRICT,

DEFENDANT.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL P. MAXWELL, Judge. Reversed.

Before Blanchard, P.J., Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1810

¶1 PER CURIAM. The State of Wisconsin Department of Public
Instruction (“the Department”) appeals a circuit court order reversing a decision
by the School District Boundary Appeal Board (“the Board”). 1 The Board denied
Torin and Autumn Misko’s petition to detach their single parcel from the West
Allis-West Milwaukee School District (“West Allis”) and attach it to the New
Berlin School District. The Department argues that the Board properly applied the
statutory criteria and that the Board’s decision has a rational basis. We agree and
reverse the court’s decision.

BACKGROUND

¶2 The Miskos live in a single-family residence in the City of New
Berlin, and their property is in the West Allis district. The properties surrounding
the Miskos’ property are also in the West Allis district. The Miskos’ two children
attend Hoover Elementary School in the West Allis district. In January 2021, the
Miskos filed a petition for reorganization with the school boards of West Allis and
New Berlin, seeking to detach their property from the West Allis district and
attach it to the New Berlin district. The West Allis school board denied the
petition, and the New Berlin school board approved it. This constituted a denial of
the petition because both districts must approve the reorganization for the

1
The School District Boundary Appeal Board has statewide jurisdiction and is attached
to the State of Wisconsin Department of Public Instruction; it is comprised of members from
various sized districts’ school boards and the Department Secretary’s designee. See WIS. STAT.
§ 15.375 (2021-22). All references to the Wisconsin Statutes are to the 2021-22 version unless
otherwise noted.

Separately, we note that the Miskos proceeded pro se before the Board and the circuit
court, as they now do on appeal.

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reorganization to occur. See WIS. STAT. § 117.12(3). The Miskos appealed the
denial by the West Allis school board to the Board.

¶3 At the Board hearing, the Miskos expressed several reasons for
wanting to detach from the West Allis district and become part of the New Berlin
district. Their concerns included the fact that the West Allis district does not have
“New Berlin” in the district name, the West Allis district’s alleged undue delay in
returning to in-person instruction amidst the COVID-19 pandemic, ratings from
the Department showing that the West Allis district has an overall lower “report
card” score than the New Berlin district, and that the Miskos’ values are better
aligned with those of the New Berlin district. The Miskos conceded that they had
approval for their children to attend the New Berlin district through an open
enrollment program but argued that this was impractical because of a West Allis
district policy that does not allow buses from outside districts to transport students
within the West Allis district’s borders.

¶4 In response, the West Allis district noted that other school districts
that include parts of New Berlin within their boundaries also do not include the
name “New Berlin” in their district names. As to the West Allis district’s
COVID-19 policies, the West Allis district stated that it followed the guidance of
the health department that covers the county in which a majority of the students
live. In terms of its “report card,” the West Allis district stated that its score has
been improving over the last few years. Regarding the transportation issues
associated with open enrollment, the district argued that the policy of restricting
outside districts from picking up or dropping off students in another district is a
“very common practice across the state.” The district further stated that the
Miskos had not made a formal request to the district for an exception to the policy.

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¶5 In addition, the West Allis district focused on the potential effects of
allowing detachments such as the one requested by the Miskos. It asserted that
there are 257 students similarly situated to the Miskos’ children who live in New
Berlin but who attend the schools in the West Allis district. Based on
demographic data it provided to the Board, the West Allis district argued that if
these other children also attended school in the New Berlin district, “the racial and
economic balance” of the two districts could “shift significantly,” with “whiter and
wealthier students mov[ing] to a whiter and wealthier school district, [and] poorer
students of color [being] more concentrated in a higher poverty school district.”
The district also argued that if the other similarly-situated students detached, there
would be a significant increase in the mill rate2 in the West Allis district, resulting
in an annual increase in property taxes. Relatedly, the district argued that it cannot
grow revenue through the expansion of territory, meaning that maintaining current
boundaries is critical for its financial stability.

¶6 Further, the West Allis district noted that the Miskos’ parcel is
located in the “middle of a block” of other parcels in the West Allis district. It
argued that detachment of the Miskos’ “island” parcel would create boundary
confusion for the Miskos’ neighbors and for area realtors because the properties
surrounding the Miskos’ property would remain in the West Allis district. The
district stated that it was not aware of a detachment, such as the one proposed by
the Miskos, in which a single property was completely removed from the school
district while surrounded by other properties within that school district. The
district noted that all of the students who live in New Berlin and attend Hoover

A mill rate is a tax rate for assessing the value of real property. See mill rate, BLACK’S
2

LAW DICTIONARY (11th ed. 2019).

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Elementary School are bused to school, as the Miskos’ children are. It argued that
creating changes like the requested detachment would add more busing and traffic
to the neighborhood. The district also took the position that additional, similar
detachments would have the potential to force the closure of Hoover Elementary
School and disrupt the West Allis district’s long-range facility master planning
process.

¶7 The Board affirmed the West Allis district’s denial of the Miskos’
petition. In reaching its decision, the Board considered the criteria under WIS.
STAT. § 117.15,3 which delineates eight, nonexclusive criteria that a school board
3
WISCONSIN STAT. § 117.15 provides:

117.15 Criteria for school district reorganizations.
In making any decision under [WIS. STAT. §§] 117.08 to
117.132, a school board, the board and an appeal panel shall
consider the following factors as they affect the educational
welfare of all of the children residing in all of the affected school
districts, and may consider other appropriate factors:

(1) The geographical and topographical characteristics
of the affected school districts, including the estimated travel
time to and from school for pupils in the school districts.

(2) The educational needs of all of the children residing
in the affected school districts, the educational programs
currently offered by each affected school district and the ability
and commitment of each school district to meet those needs and
continue to offer those educational programs.

(2m) If territory is proposed to be detached from one
school district and attached to an adjoining school district or
proposed to be included in a new school district under [WIS.
STAT. §] 117.105, whether the proposed detachment will have
any adverse effect on the program currently offered by the
school district from which the territory is proposed to be
detached, including both curricular and extracurricular aspects of
that program.

(3) The testimony of and written statements filed by the
residents of the affected school districts.
(continued)

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must consider in making school district reorganization decisions such as
detachments. The Board concluded that three of the eight criteria are pertinent:
§ 117.15(4), (5), and (6).

¶8 Regarding WIS. STAT. § 117.15(4), the “estimated fiscal effect of the
proposed reorganization on the affected school districts,” the Board found that
although there would not be an immediate financial effect from the Miskos’
proposed detachment, “in the future the [West Allis] district could be adversely
affected if the creation of one noncontiguous island encouraged other[] similar
petitions.”

¶9 The Board next considered WIS. STAT. § 117.15(5), “[w]hether the
proposed reorganization will make any part of a school district’s territory

(4) The estimated fiscal effect of the proposed
reorganization on the affected school districts, including the
effect of the apportionment of assets and liabilities.

(5) Whether the proposed reorganization will make any
part of a school district’s territory noncontiguous.

(6) The socioeconomic level and racial composition of
the pupils who reside or will reside in territory proposed to be
detached from one school district and attached to an adjoining
school district, in territory proposed to be included in a new
school district under [WIS. STAT. §] 117.105 or in school
districts proposed to be consolidated or in a school district
proposed to be dissolved; the proportion of the pupils who reside
in such territory who are children at risk, as defined under [WIS.
STAT. §] 118.153(1)(a); and the effect that the pupils described
in this paragraph will have on the present and future
socioeconomic level and racial composition of the affected
school districts and on the proportion of the affected school
districts’ enrollments that will be children at risk.

(7) The results of any referendum held under [WIS.
STAT. §] 117.10.

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noncontiguous.” See § 117.15(5). The Board found that the Miskos’ proposed
detachment would create a noncontiguous parcel in the affected district because it
would be an “island of New Berlin territory surrounded by the West Allis-West
Milwaukee school district.”

¶10 The Board also discussed WIS. STAT. § 117.15(6), which requires the
Board to consider

[t]he socioeconomic level and racial composition of the
pupils who reside or will reside in territory proposed to be
detached from one school district and attached to an
adjoining school district, in territory proposed to be
included in a new school district under s. 117.105 or in
school districts proposed to be consolidated or in a school
district proposed to be dissolved; the proportion of the
pupils who reside in such territory who are children at risk,
as defined under s. 118.153(1)(a); and the effect that the
pupils described in this paragraph will have on the present
and future socioeconomic level and racial composition of
the affected school districts and on the proportion of the
affected school districts’ enrollments that will be children
at risk.

The Board found that although the Miskos’ proposed detachment would not have
an immediate effect, “in the future” the West Allis district “could be adversely
affected if significant parts of the district in the city of New Berlin were to be
detached, given the large differences in racial composition and socioeconomic
level between the New Berlin and the West Allis-West Milwaukee parts of the
West Allis … district.”

¶11 The Miskos appealed the Board’s decision to the circuit court, which
reversed the Board. The Department appeals.

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DISCUSSION

I. Standard of Review and General Principles Governing Board Decisions

¶12 On appeal, we review the decision of the Board, not the circuit
court’s decision. School Dist. of Waukesha v. School Dist. Boundary Appeal
Bd., 201 Wis. 2d 109, 116, 548 N.W.2d 122 (Ct. App. 1996). Our review is
limited to “whether the Board acted within its jurisdiction and whether its order
was arbitrary and capricious.” Stockbridge School Dist. v. Department of Public
Instruction School Dist. Boundary Appeal Bd., 202 Wis. 2d 214, 219, 550
N.W.2d 96 (1996). Because there is no dispute regarding the Board’s jurisdiction,
the only issue for our review is whether the Board’s order is arbitrary and
capricious. See School Dist. of Waukesha, 201 Wis. 2d at 116. The Board’s
actions are arbitrary and capricious “when the findings of the agency are
unreasonable or without a rational basis.” Id. “An action is arbitrary if it is the
result of an ‘unconsidered, wilful and irrational choice’ and not the result of the
“winnowing and sifting” process.’” Id. (quoted source omitted). In applying the
rational basis test, “rational speculation is enough.” Brown v. DCF, 2012 WI App
61, ¶38, 341 Wis. 2d 449, 819 N.W.2d 827 (applying rational basis test in
constitutional challenge to statute).

¶13 “School district reorganization is a legislative policy-making
function, and as such has been delegated by the legislature to local boards.”
School Dist. of Waukesha, 201 Wis. 2d at 113. The Board’s review “is not a
judicial or quasi-judicial undertaking in which the panel is required to restrict its
decision to the facts appearing of record.” Id. at 119. Instead, the Board’s action
is “an independent, legislatively delegated re-evaluation of the proposed
reorganization.” Joint Sch. Dist. No. 2 v. State Appeal Bd., 83 Wis. 2d 711, 720,

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266 N.W.2d 374 (1978). The Board’s decision addresses what is “best for the
educational system involved,” id. at 721, and its decision can be “a matter of
educational philosophy,” City of Beloit v. State Appeal Board, 103 Wis. 2d 661,
668, 309 N.W.2d 392 (Ct. App. 1981). Thus, “courts do not review the policy,
wisdom or fairness of a particular reorganization decision, except to determine
whether the Board’s decision was arbitrary and capricious.” Stockbridge, 202
Wis. 2d at 227.

¶14 The Miskos filed their petition under WIS. STAT. § 117.12, which
provides for the “[d]etachment and attachment of a small territory initiated by the
owner.” Sec. 117.12. In making its decision to grant or deny the petition, the
Board is required to consider the factors set forth in WIS. STAT. § 117.15 and is
also permitted to consider any “other appropriate factors[.]” Sec. 117.15. The
Board considers the factors “as they affect the educational welfare of all of the
children residing in all of the affected school districts.” Sec. 117.15. Although the
Board “is statutorily bound to consider all of the factors enumerated in § 117.15,
… the agency may, in its discretion, consider information from other sources as
well.” School Dist. of Waukesha, 201 Wis. 2d at 116. For example, “[i]t is
proper for the [Board] to consider ‘matters within its knowledge and expertise in
the field of educational policy.’” Id. (quoting Joint Sch. Dist. No. 2 v. State
Appeal Bd., 83 Wis. 2d 711, 720, 266 N.W.2d 374 (1978)).

II. Analysis

¶15 The Department argues that, applying the proper standard of review,
the Board’s decision must be affirmed because a rational basis supports it. The
Department contends that the Board considered the required—but nonexclusive—
factors in WIS. STAT. § 117.15 and that, consistent with that statute and pertinent

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case law, it properly considered other appropriate factors as well. We agree and,
for the reasons explained below, reject the Miskos’ arguments to the contrary.

¶16 As noted, in reaching its decision, the Board considered each of the
required criteria in WIS. STAT. § 117.15. The Board determined that only
§ 117.15(4), (5) and (6) were relevant to its determination. Neither party disputes
the conclusion that these are the relevant criteria, nor does either party make
additional arguments based on the other required statutory factors. The Board
considered these factors as they relate to the Miskos’ specific detachment request.
Moreover, in discussing factors (4) and (6), the Board also considered these
factors in relation to potential future detachments of similarly situated properties if
the Miskos’ detachment request were granted.

¶17 On appeal, the Miskos advance the same positions as those relied on
by the circuit court in reversing the Board’s decision. As to the Board’s
application of WIS. STAT. § 117.15(5), the factor addressing noncontiguous
parcels, the Miskos argue that detachment of island parcels is permissible under
Stockbridge, 202 Wis. 2d at 219, presumably suggesting that the Board’s reliance
on this factor was irrational. As to WIS. STAT. § 117.15(4) and (6), the Miskos
argue that the Board may not consider the effects of any future detachments if the
Miskos’ petition were granted but instead may consider only the effects of the
Miskos’ specific detachment. As discussed below, these arguments are not
persuasive.

A. WISCONSIN STAT. § 117.15(5) and Stockbridge

¶18 As stated, WIS. STAT. § 117.15(5) requires the court to consider
“[w]hether the proposed reorganization will make any part of a school district’s
territory noncontiguous.” There is no dispute that the Miskos’ proposed

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reorganization would make the Miskos’ parcel noncontiguous to the New Berlin
district’s territory. Thus, this factor unequivocally operates in the Department’s
favor.

¶19 The Miskos argue that Stockbridge allows their requested
detachment, and suggests that the Board was therefore required to approve their
petition. However, Stockbridge does not support this position.

¶20 Stockbridge involved a jurisdictional challenge. The Stockbridge
School District challenged the Board’s orders allowing for detachment of forty-
one “island” parcels, arguing that the Board “lacked jurisdiction to order the
detachment,” in part, because “the parcels to be detached had no common
boundary with the proposed school district of attachment.” Stockbridge, 202
Wis. 2d at 218. Our supreme court rejected this position, concluding that WIS.
STAT. § 117.12 “does not require that the detaching parcel border the school
district of attachment,” Stockbridge, 202 Wis. 2d at 223, and that the statute
instead “allows for the detachment of such ‘island’ parcels,” id. at 217. Notably,
in affirming the Board’s decision, the supreme court emphasized that it “has long
held that school district reorganization represents the determination of policy
questions of a legislative nature which the legislature has delegated to the Board.”
Id. at 227.

¶21 Thus, Stockbridge does not support the proposition that it would be
irrational for the Board to deny such petitions based on the noncontiguity factor.
Here, the Board determined that the Miskos’ parcel would create a noncontiguous
island of New Berlin district territory surrounded by the West Allis district. The
Miskos’ parcel is in the middle of a block of West Allis district parcels and there is
no other single-parcel island detachment in the district. It is rational to avoid

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structuring a district to resemble a checkerboard, which can break up
neighborhoods, add busing, and create confusion. The Board considered this
information along with the other factors under WIS. STAT. § 117.15 and made its
decision to deny the Miskos’ petition. Although the Board could have allowed
detachment of an island parcel under Stockbridge, the Board made a rational
decision to deny the petition here based on this and other factors, because those
factors “affect the educational welfare of all of the children residing in all of the
affected school districts.” See § 117.15.

B. Future Consequences

¶22 The Miskos argue that the Board incorrectly applied WIS. STAT.
§ 117.15(4) and (6) because these provisions address only the effects of the
Miskos’ detachment and do not allow the Board to consider the effects of any
future detachments if the Miskos’ petition is granted. We reject this argument,
concluding that the Board may properly consider such future consequences.

¶23 As noted, the Board concluded that, although granting the Miskos’
petition would not have an immediate financial effect, the West Allis district could
experience adverse fiscal effects if the Miskos’ detachment encouraged other
similar detachments. The Board also concluded that, although granting the
Miskos’ petition would not make a significant difference in the racial and
socioeconomic composition of students in the two districts, the West Allis district
could be adversely affected if significant numbers of parcels in the district located
in the city of New Berlin also detached, given the “large differences in racial
composition and socioeconomic level between the New Berlin and West Allis-
West Milwaukee parts” of the West Allis district.

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¶24 The Board is permitted to consider these potential consequences as
“other appropriate factors” in addition to the specific factors listed in WIS. STAT.
§ 117.15. See § 117.15. Moreover, the Board properly considered these potential
consequences because it is not required to “restrict its decision to the facts
appearing of record” and may “consider ‘matters within its knowledge and
expertise in the field of educational policy’” in arriving at its decision. School
Dist. of Waukesha, 201 Wis. 2d at 116, 119. The Board’s denial of the petition
based on its consideration of these potential consequences, together with other
required and appropriate factors, has a rational basis. For reasons explained
below, we are not persuaded by the Miskos’ positions to the contrary.

¶25 The Miskos argue that the Board does not specify that its decision is
based on any other factors, nor does the Board identify other factors that it
considered in reaching its decision. After discussing the delineated statutory
factors in WIS. STAT. § 117.15, the Board states in its decision that it “did not
identify any other factors for the record.”

¶26 On judicial review, the burden is on the petitioner “to establish that a
claimed procedural error is prejudicial.” See RURAL v. PSC, 2000 WI 129, ¶48,
239 Wis. 2d 660, 619 N.W.2d 888. We conclude that even if the Board erred in
stating that it did not consider “other factors” when it in fact did so, the Miskos
have not met their burden of showing that any such procedural error was
prejudicial. There is no dispute that, in addition to discussing the effects under
WIS. STAT. § 117.15(4) and (6) if the Miskos’ specific petition were granted, the
Board also considered the potential future effects if, following the Miskos’
detachment, other similarly situated residents followed suit. Therefore, to the
extent that potential future detachments and consequences are not encompassed by
the specific statutory language of § 117.15(4) and (6), this information properly

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constitutes “other” information not included in these provisions. See School Dist.
of Waukesha, 201 Wis. 2d at 116. That the Board considered these potential
consequences through the lens of § 117.15(4) and (6), rather than through specific
reference to “other appropriate factors” in § 117.15 or “other information” in the
case law that allows for their consideration, does not mean that the Board’s
consideration of this information is arbitrary or capricious. The Board’s decision
provides the Miskos with all of the underlying reasons, including the potential
future consequences, for its decision and the Miskos fail to show that any error in
its labeling or characterization of this information prejudiced them. This is
especially true given that “[t]he board is not required to make formalized findings
of fact.” Joint Sch. Dist. No. 2, 83 Wis. 2d at 720.

¶27 The Miskos also argue that, “[s]ince being able to tell the future is
impossible,” the Board’s discussion of the potential consequences of granting their
petition is not rational. As explained above, the Board based its decision on the
information presented at the hearing, including the data on the current
demographics of the districts and the implications for those demographics of
granting the Miskos’ petition, as well as data regarding the fiscal implications of
granting the petition. It is rational for the Board to consider its best understanding
of the potential future effect on the current racial and economic composition of the
districts, as well as the potential fiscal effect. And the Miskos have failed to show
that it is arbitrary or capricious for the Board to consider these potential future
impacts given that: school district reorganization is a legislative policy-making
function that has been delegated to the Board, School District of Waukesha, 201
Wis. 2d at 113; the Board may consider facts outside the record, id. at 119, and
base its decision on what is “best for the educational system involved,” Joint

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School District No. 2, 83 Wis. 2d at 721; and a “rational basis” may be based on
“rational speculation,” Brown, 341 Wis. 2d 449, ¶38.

¶28 In sum, we conclude that the Board’s decision reflects a “sifting and
winnowing process” and that a rational basis supports the Board’s conclusion. See
School Dist. of Waukesha, 201 Wis. 2d at 116. Accordingly, we reverse the
circuit court’s order and reinstate the Board’s decision.

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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