In the Missouri Court of Appeals

Western District

FRED N. SAUER, ANNE GASSEL and 

GRETCHEN LOGUE,

Respondents,

v.

JEREMIAH W. (Jay) NIXON, et al,

Appellants.

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WD78430

FILED: November 17, 2015

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY

THE HONORABLE DANIEL R. GREEN, JUDGE

BEFORE DIVISION TWO: MARK D. PFEIFFER, PRESIDING JUDGE,

LISA WHITE HARDWICK AND JAMES E. WELSH, JUDGES

Jeremiah W. (Jay) Nixon, et al., ("Appellants")1appeal the circuit court's 

grant of summary judgment in favor of Fred Sauer, Anne Gassel, and Gretchen 

Logue ("Respondents") on Respondents' petition for declaratory and injunctive 

relief concerning Missouri's membership in the Smarter Balanced Assessment 

Consortium ("SBAC").2 Appellants contend the court erred in entering judgment in 

 

1 Appellants include: Jeremiah W. (Jay) Nixon, in his official capacity as Governor of Missouri; 

Chris L. Nicastro, in her official capacity as Commissioner of Education; Department of Elementary 

and Secondary Education; Missouri State Board of Education; Clint Zweifel, in his official capacity 

as Missouri Treasurer; Office of the Treasurer; Doug Nelson, in his official capacity as Commissioner 

of Administration; Office of Administration; and the State of Missouri.

 

2

In addition to referring to the Smarter Balanced Assessment Consortium, "SBAC" refers to other 

names for the organization, including Smarter Balanced at UCLA, Smarter Balanced, SB, the 

University of California, and the National Center for Research on Evaluation, Standards and Student 

Testing.
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favor of Respondents and enjoining Missouri from making member payments to 

SBAC because its participation as a member of SBAC did not violate the Compact 

Clause of the U.S. Constitution or any state statutes. For reasons explained herein, 

we dismiss the appeal as moot and deny, without prejudice, Appellants' request to 

vacate the circuit court's judgment. 

FACTUAL AND PROCEDURAL HISTORY

In 2009, the National Governors Association and the Council of Chief State 

School Officers initiated an effort to develop a national, uniform set of standards in 

English language arts and mathematics for grades K-12 called the Common Core 

State Standards ("Common Core"). In June 2009, Governor Nixon and 

Commissioner of Education Nicastro signed a memorandum of agreement 

committing Missouri to adopt the Common Core standards.

Later in 2009, the U.S. Department of Education issued an invitation to 

states to apply for Race to the Top ("RTTT") grant funding. The purpose of RTTT 

was to "replace the existing patchwork of State standards" with uniform national 

standards. To qualify for funding, states had to demonstrate their commitment to 

"high-quality standards," which they could do by "participat[ing] in a consortium of 

States that . . . [i]s working toward jointly developing and adopting a common set 

of K-12 standards . . . that are supported by evidence that they are internationally 

benchmarked and build toward college and career readiness by the time of high 

school graduation."

The U.S. Department of Education provided further incentive for the creation 

of these educational consortia, announcing that, under the RTTT grant program, it 
3

would provide funding to consortia of states to develop assessments aligned with 

the common K-12 standards. To be eligible for funding, each consortium had to 

include at least 15 states, and it had to require its member states to adopt uniform 

academic performance assessment standards by the 2014-2015 school year. 

SBAC was one of the multi-state consortia formed to take advantage of the 

RTTT assessment funding. In May 2010, Governor Nixon and Commissioner 

Nicastro signed a memorandum of understanding committing Missouri to be a 

member of SBAC. The memorandum of understanding provided that, in addition to 

adopting and implementing the Common Core standards, Missouri agreed to fully 

implement statewide SBAC's summative assessments in grades 3-8 and high 

school for both mathematics and English language arts no later than the 2014-

2015 school year; adhere to the governance of SBAC as outlined in the document; 

agree to support SBAC's decisions; agree to follow agreed-upon timelines; be 

willing to participate in the decision-making process and, because Missouri was a 

governing state in the consortium, be willing to participate in final decisions; and 

identify and implement a plan to address barriers in state law, statute, regulation, 

or policy to implementing SBAC's proposed assessment system. In September 

2010, the U.S. Department of Education awarded a grant of approximately $159 

million in RTTT funds to SBAC, plus a supplemental award of over $15 million to 

help participating states successfully transition to common standards and 

assessments. 

In September 2011, the U.S. Department of Education announced a plan to 

allow states to obtain waivers of some provisions of the No Child Left Behind Act if 
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the states had both college-ready and career-ready statewide standards for all 

students and "high-quality assessments." Commissioner Nicastro subsequently 

submitted a No Child Left Behind waiver request on behalf of the State of Missouri. 

The U.S. Department of Education approved the request, thereby allowing Missouri 

to receive federal funding so long as Missouri used the SBAC assessments or their 

functional equivalent.

SBAC's federal funding from the RTTT grant ended in late 2014. To 

continue its assessment development efforts after the RTTT grant ended, SBAC 

moved its activities to the University of California, Los Angeles. Since July 1, 

2014, SBAC has operated within UCLA's Graduate School of Education and 

Information Studies, National Center for Research on Evaluation, Standards and 

Student Testing. The participating states jointly fund SBAC through payments to 

the University of California. 

In late 2014, the State of Missouri, through DESE's Chief of Staff, entered 

into a Memorandum of Understanding and Agreement ("2014 agreement") with the 

Regents of the University of California regarding Missouri's continued participation 

in SBAC. In the 2014 agreement, Missouri agreed to participate in SBAC's 

governing board and be bound by SBAC's governing board procedures and "all 

other decisions and actions" of the governing board that were intended to bind 

SBAC's members. The 2014 agreement indicated that Missouri would have access 

to SBAC's assessment products and, as a member state, would have input in the 

development and implementation process of those products. The 2014 agreement 
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indicated that Missouri's annual fee as a member state of SBAC for 2014-2015 

would be $4,242,000.

In September 2014, Respondents, who are Missouri residents and taxpayers, 

filed a petition for declaratory and injunctive relief against Appellants challenging 

Missouri's membership in and payment of dues to SBAC. Respondents alleged that 

Missouri's membership in SBAC is illegal on three grounds: (1) it violates the 

Compact Clause of the U.S. Constitution, Art. I, § 10, cl. 3; (2) it violates federal 

law guaranteeing state and local control of curriculum, programs of instruction, and 

related matters in public schools; and (3) it violates Missouri law limiting the 

number of academic performance standards that the state board of education can 

adopt. Respondents sought declaratory and injunctive relief. 

Both parties filed motions for summary judgment. The circuit court granted 

Respondents' motion. In its judgment, the court held that SBAC is an unlawful 

interstate compact in violation of the Compact Clause of the U.S. Constitution and 

"numerous federal statutes." The court further held that Missouri's participation in 

SBAC as a member is unlawful under both state and federal law.

Accordingly, the court declared that any of Missouri's "putative obligations, 

including the obligation to pay membership fees," to SBAC are illegal and void and 

that no Missouri taxpayer funds may be disbursed, either directly or indirectly, to 

SBAC in the form of membership fees. The court permanently enjoined the 

Appellants "and all those in active concert with them, from taking any action to 

implement or otherwise effectuate any payment of Missouri funds as membership 

fees to SBAC, whether directly or indirectly." Appellants filed this appeal.
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MOOTNESS 

Respondents contend that, while this appeal was pending, events occurred 

that rendered the appeal moot. Mootness is a threshold question that implicates 

the justiciability of an appeal. TCF, LLC v. City of St. Louis, 402 S.W.3d 176, 181 

(Mo. App. 2013). "'[A] case is moot if a judgment rendered has no practical effect 

upon an existent controversy.'" State ex rel. Chastain v. City of Kansas City, 968 

S.W.2d 232, 236 (Mo. App. 1998) (citation omitted). "When an event occurs that 

makes a decision on appeal unnecessary or makes it impossible for the appellate 

court to grant effectual relief, the appeal is moot and generally should be 

dismissed." TCF, 402 S.W.3d at 181. In deciding whether a case is moot, we 

may consider matters outside of the record. Chastain, 968 S.W.2d at 237.

There are two recognized exceptions to the general rule of dismissal "under 

which this court may exercise its discretion to hear the appeal and reach the merits 

of a moot case." Floyd v. Dep't of Mental Health, 452 S.W.3d 154, 158 (Mo. 

App. 2014). These exceptions are (1) where the case becomes moot after it has 

been argued and submitted, id., and (2) where "the case presents an unsettled 

legal issue of public interest and importance of a recurring nature that will escape 

review unless the court exercises its discretionary jurisdiction," Chastain, 968 

S.W.2d at 237. The second exception, referred to as the "public interest" or 

"capable of repetition" exception, "is construed very narrowly." TCF, 402 S.W.3d 

at 181. "If an issue of public importance in a moot case is likely to be present in a 

future live controversy practically capable of appellate review, then the 'public 

interest' exception does not apply." Chastain, 968 S.W.2d at 237. 
7

After the circuit court entered its judgment in this case, the General 

Assembly passed, and Governor Nixon signed, House Bill 2 ("HB 2"). HB 2 

appropriates money to the Board of Education and DESE for the period of July 1, 

2015 through June 30, 2016. Section 2.070 of HB 2 appropriates a total of 

$22,583,468 to DESE for its Performance Based Assessment Program and states, 

in pertinent part: 

For the Performance Based Assessment Program, . . . provided that no 

funds from this section shall be used for license fees or membership 

dues for the Smarter Balanced Assessment Consortium and further 

provided that no later than February 1, 2016 the Department of 

Elementary and Secondary Education shall submit a plan for the 

development and implementation of a new, Missouri-based state 

assessment plan for review and approval by the House Budget 

Committee and Senate Appropriations Committee, and further provided 

that $7,000,000 be used solely for development of a Missouri-based 

state assessment plan[.] 

The language of Section 2.070 of HB 2 expressly prohibits DESE from using any of 

the funds designated for the Performance Based Assessment Program to pay SBAC 

for license fees or membership dues. 

In July 2015, the Assistant Commissioner of DESE's Office of College and 

Career Readiness notified SBAC that "Missouri will not continue as a licensee of 

materials for the 2015-2016 school year" because "[t]he appropriations bill passed 

by the legislature and signed by the governor contains language preventing the 

agency from spending money as a member or licensee of the Smarter Balanced 

Assessment Consortium." Attached to the Assistant Commissioner's letter to 

SBAC was a legal opinion from DESE's General Counsel. The legal opinion stated, 

"As general counsel for DESE, it is my legal opinion that the language of HB 2 
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specifically prohibits the State of Missouri from participating as a member or as a 

licensee in the Smarter Balance Assessment Consortium." DESE's General Counsel 

requested that Missouri's membership in SBAC be terminated and that the 

termination be effective immediately, "due to the specific prohibitive language of 

the Missouri appropriation language."3 

The termination of Missouri's membership in SBAC rendered Appellants' 

appeal of the circuit court's judgment moot. There is no longer an actual, live 

controversy regarding Missouri's membership in and payment of membership dues 

to SBAC. A ruling on the merits of the appeal would have no practical effect on an 

existent controversy.

Appellants argue that the case is not moot because the circuit court's 

judgment "could cast doubt on many if not all" of Missouri's agreements with other 

states, "could deter future agreements," and could be "a weapon available for use 

by those unhappy with any multistate action." We disagree. The judgment neither 

addresses nor prohibits Missouri's participation in other multistate agreements 

concerning education or any other matter. The judgment pertains solely to 

Missouri's membership in SBAC. Because Missouri is no longer a member of 

SBAC, the appeal is moot. 

The exceptions permitting us to exercise our discretion to hear the appeal 

despite its mootness are not applicable. The case became moot well before it was 

argued and submitted. See Floyd, 452 S.W.3d at 158. Likewise, the case does 

 

3 We do not reach the issue of the legal effect of the restrictive language in HB 2 or the accuracy of 

the legal opinion given by DESE's General Counsel. The fact that DESE terminated the membership 

in SBAC and ceased all payments is the operative issue.
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not fall within the narrow "public interest" or "capable of repetition" exception. To 

invoke this exception, Appellants must show that the "'case presents an issue that 

is (1) of general public interest; (2) will recur; and (3) will evade appellate review in 

future live controversies.'" Asher v. Carnahan, 268 S.W.3d 427, 431 (Mo. App. 

2008) (citation omitted). While this case may be of general public interest, it does 

not meet the exception's other requirements.

It is doubtful that this issue will recur, as language in HB 2 and other 

legislative action have made it very unlikely that DESE will seek to resume 

payments to SBAC after the 2015-2016 school year. In addition, the legislature 

has required the State Board of Education to adopt and implement new academic 

performance standards for the 2016-2017 school year and to align the statewide 

assessment plan to those standards as needed. § 161.855.3, RSMo Supp. 2014. 

Without knowing what those new academic performance standards will be, it is 

impossible to know which, if any, assessment provider DESE will employ to obtain 

Missouri-based assessments aligned with the new standards. While a party 

seeking to invoke the "capable of repetition" exception "need not identify a 

specific, looming future controversy which will raise the same issues as the present 

case, it must point to circumstances which take the possibility of recurrence out of 

the realm of pure speculation." Jackson Cty. Bd. of Election Comm'rs v. City of 

Lee's Summit, 277 S.W.3d 740, 745 (Mo. App. 2008). The possibility that 

Appellants might seek to resume payments to SBAC at some point in the future is 

purely speculative, particularly in light of the legislature's actions.
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Even if the issues in this case were to recur in the future, however, we see 

no reason why they would evade appellate review. "For a case to evade review in 

future live controversies, the duration of the controversy must be so limited that it 

is not possible for a claim to be heard and appeals to be exhausted during its 

duration." Bernhardt v. McCarthy, 467 S.W.3d 348, 348 (Mo. App. 2015). As 

Respondents note, this case has become moot "due to the intervention of the 

General Assembly, not due to some trait inherent in the dispute that inevitably 

would lead future, similar cases to become moot before appellate review." The 

exceptions allowing for review of this appeal despite its mootness are not present. 

CONCLUSION

The appeal is dismissed as moot. We deny, without prejudice, Appellants' 

request to vacate the judgment.

 

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LISA WHITE HARDWICK, JUDGE

ALL CONCUR.