MENDOZA v. LOS ANGELES PARENTS UNION

Filed 4/17/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Story Continued from Part I ..

In order to take control over the three clusters of schools, the Mayors Partnership is first required to seek approval from the County Superintendent of Schools. (Ed. Code,  35930.5.) The County Superintendent is required to act on a request for approval within 20 days. (Ed. Code,  35930.5, subd. (b).) The County Superintendent shall grant the request unless one of three specific conditions exist: (a) the Mayor and the Mayors Partnership are demonstrably incapable, and not likely to gain the capability before the project begins, of implementing a sound educational program at the schools in the demonstration project; (b) the Mayor and the Mayors Partnership have an irremediable and significant conflict of interest in undertaking the project; or (c) the Mayor and the Mayors Partnership are demonstrably incapable, and not likely to gain the capability before the project begins, of providing sufficient financial oversight to ensure that the schools in the project are financially capable of sustaining a sound educational program and other operational services. (Ibid.) There is to be a progress report on the Mayors Partnership by January 1, 2008. (Ed. Code,  35940, subd. (a)(1).) Upon receiving the progress report, the County Superintendent may withdraw authorization for the demonstration project, but only for one of the same three reasons for which approval could have been denied. (Ed. Code,  35930.5, subd. (c).) Significantly, the County Superintendent can only withdraw approval if the Partnership is demonstrably incapable of implementing a sound educational program, not if the Partnership has implemented an educational program that proves to be less sound than the educational program previously implemented by the LAUSD at the cluster schools. In other words, the County Superintendent cannot withdraw approval based on any relative determinations of the success of the educational program at the /luster schools, but must allow the program to continue as long as the educational program is sound. Nor does the County Superintendent have any powers to monitor or oversee the programs at the cluster schools run by the Mayors Partnership.

In short, after the Legislative Counsel had indicated its belief that transferring control over the educational functions of a school district to the mayor of a charter city, with the County Superintendent of Schools being given authority to oversee the mayors performance, would be unconstitutional, the Romero Act transferred the educational functions over part of the LAUSD to a partnership headed by the Mayor, with the County Superintendent of Schools permitted to invalidate that control under only very limited circumstances.

c. Provisions Relating to the Romero Acts Constitutionality

The Legislature was clearly aware of the Legislative Counsels opinions when enacting the Romero Act, and therefore took steps with the goal of ensuring the Romero Acts constitutionality. Thus, the general provisions of the Romero Act include a statement that [i]t is . . . the intent of the Legislature that, in performing the school‑related duties set forth in this chapter, the [C]ouncil of [M]ayors . . . and the [Mayors Partnership] function as agencies authorized to maintain public schools, similar to a school district or county office of education. The [C]ouncil of [M]ayors and the [Mayors P]artnership are, therefore, a part of the public school system of the state in performing the duties established in this chapter within the meaning of Section 6 of Article IX of the California Constitution. (Ed. Code,  35900, subd. (e).) The clusters of schools which are under the control of the Mayors Partnership shall, by statute, continue to exist as district schools, and employees at the schools shall be deemed to be district employees with all the rights of district employees. (Ed. Code,  35932, subd. (b).) Those schools shall continue to be funded with district resources, although the funding may be supplemented by private funding accounted for by the Mayors Partnership. (Ed. Code,  35932, subd. (c).) The Romero Act also specifies that any liability incurred by any member of the [C]ouncil of [M]ayors or the [Mayors Partnership] in undertaking any of the functions described in this chapter shall be borne by the school district and not by the County of Los Angeles, or any of the cities within its boundaries. (Ed. Code,  35900, subd. (f).)

d. Remaining Provisions of the Romero Act

There are several other provisions of the Romero Act, which are not material to our main analysis. The Romero Act provides that the Southeast Cities Schools Coalition, comprised of several cities, shall have the power to ratify the selection of the local district superintendent serving those cities. (Ed. Code, 35911, subd. (c).) The Romero Act contains provisions relating to the inspector general of the LAUSD (Ed. Code,  35400). The Romero Act also contains provisions relating to the selection of instructional materials by the LAUSD, including that [p]arents, teachers, and other certificated staff [shall] have an authentic and central role. (Ed. Code,  35914, subd. (a)(1)(A).)

The entire Romero Act is repealed by its own terms on January 1, 2013, unless subsequent legislation deletes or extends that date.^[1] (Ed. Code,  35950.) There is no severability clause in the Romero Act.

4. The Instant Action

On October 10, 2006, a verified petition for writ of mandate challenging the constitutionality of the Romero Act was filed. The plaintiffs include the LAUSD and certain individual and organizational entities opposed to the law. The named defendants are the State of California, the Governor, the State Controller, the State Board of Education, the County Superintendent of Schools, and the Mayor. Plaintiffs took the position that the Romero Act violated sections 5, 6, 8, 14 and 16 of article IX of the California Constitution.^[2] On November 7, 2006, a group of individual and organizational entities who support the Romero Act was permitted to intervene.

After substantial briefing and argument, the trial court issued its opinion granting the petition for writ of mandate. The lengthy and comprehensive statement of decision issued by the trial court held the Romero Act unconstitutional on every basis on which it had been challenged. Concluding the Romero Act was not severable, the court issued a writ of mandate prohibiting the defendants^[3]from enforcing or implementing the Romero Act in any way. The Governor, Controller, State Board of Education, Mayor, and Intervenors filed timely notices of appeal.^[4] At the parties joint request, we have heard this case on an expedited basis.

ISSUES ON APPEAL

We are concerned solely with the constitutionality of the Romero Act. We first consider whether the Romero Act violates article IX, section 16 of the California Constitution, which grants charter cities the right to determine whether their boards of education are to be elected or appointed. We conclude that it does. We next consider whether the Romero Act violates article IX, section 6 of the California Constitution, which prohibits the transfer of control of any part of the public school system to any authority not included within the public school system. We conclude that it does. As we conclude that the Romero Act is unconstitutional on two separate bases, we see no need to consider the further challenges to its constitutionality. We next consider whether the unconstitutional provisions of the Romero Act can be severed and the remainder of the Romero Act allowed to stand. We conclude the Romero Act is not severable. We will therefore affirm the trial courts judgment issuing a writ of mandate prohibiting the implementation or enforcement of the Romero Act in its entirety.

DISCUSSION

1. Standard of Review

In deciding whether the Legislature has exceeded its power, we are guided by well settled rules of constitutional construction. Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. [Citations.] Two important consequences flow from this fact. First, the entire law-making authority of the state, except the peoples right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. [Citations.] In other words, we do not look to the Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited. [Citation.] [] Secondly, all intendments favor the exercise of the Legislatures plenary authority: If there is any doubt as to the Legislatures power to act in any given case, the doubt should be resolved in favor of the Legislatures action. Such restrictions and limitations [imposed by the Constitution] are to be construed strictly, and are not to be extended to include matters not covered by the language used.  [Citations.] On the other hand, we also must enforce the provisions of our Constitution and may not lightly disregard or blink at . . . a clear constitutional mandate.  [Citation.] (County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 284‑285.)

The presumption of constitutionality is particularly appropriate where, as here, the Legislature has enacted a statute with the pertinent constitutional prescriptions in mind. In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision. [Citation.] Finally, to void a statute on its face, [those challenging it] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . .  Rather, [they] must demonstrate that the acts provisions inevitably pose a present total and fatal conflict with applicable constitutional provisions.  (Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1134, fn. omitted.)

While legislative findings in support of a statute are entitled to great weight, they are not controlling. (County of Riverside v. Superior Court, supra, 30 Cal.4th at p. 286.) A court may not simply abdicate to the Legislature, especially when the issue involves the division of power between local government and that same Legislature. The judicial branch, not the legislative, is the final arbiter of the constitutionality of a statute. (Id. at p. 286.)

 Constitutional provisions adopted by the People are to be interpreted so as to effectuate the voters intent, and if the intent is clear from the language used, there is no room for further judicial interpretation.  (State Bd. of Education v. Honig (1993) 13 Cal.App.4th 720, 758.) Principles of statutory construction apply equally to the interpretation of constitutional provisions. (Id. at p. 755.) Thus, for example, we are to read sections of the same article of the Constitution not in isolation, but together as a whole. (County of Riverside v. Superior Court, supra, 30 Cal.4th at p. 285.)

2. The Romero Act Violates Article IX, Section 16 of the Constitution

[T]he Legislatures power over the public school system [is] exclusive, plenary, absolute, entire, and comprehensive, subject only to constitutional constraints. (State Bd. of Education v. Honig, supra, 13 Cal.App.4th at p. 754.) Public education is an obligation which the State assumed by the adoption of the Constitution. [Citations.] The system of public schools, although administered through local districts created by the Legislature, is one system . . . applicable to all common schools . . . .   (Butt v. State of California (1992) 4 Cal.4th 668, 680.) Management and control of the public schools is a matter of state care and supervision; local districts are the states agents for local operation of the common school system. (Id. at p. 681.)

However, certain powers of local districts are enshrined in the California Constitution. Thus, California Constitution, article IX, section 16 guarantees to charter cities the right to provide for the manner in which, the time at which, and the terms for which members of boards of education shall be elected or appointed, for their qualifications, compensation and removal, and for the number which shall constitute any one of such boards. Moreover, article IX, section 14 provides that [t]he Legislature may authorize the governing boards of all school districts to initiate and carry on any program, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for which school districts are established. (Emphasis added.) In other words, while the Constitution does not require that the Legislature delegate any powers to the governing boards of local school districts, the only entities to which the Constitution expressly permits the Legislature to delegate powers regarding education are the very same governing boards which the Constitution mandates charter cities have the right to elect.^[5]

It cannot seriously be disputed that the Romero Act substantially interferes with the Boards control of the district. The provisions relating to the Mayors Partnership completely divest the Board of its powers of control over the three school clusters in the demonstration project. The provisions relating to the Council of Mayors work a somewhat more subtle, but no less substantial, interference. A great many of the powers otherwise accorded the Board are, by the Romero Act, transferred to the District Superintendent. The Board is then stripped of its otherwise-statutory right to employ a district superintendent, in that the approval and removal of that individual is now subject to the ratification of the Council of Mayors. Thus, it is clear that both major provisions of the Romero Act substantially interfere with the Boards powers of control over the district. One of the issues presented by this appeal is whether this interference violates the right of the citizens of Los Angeles to elect their board of education, as guaranteed by article IX, section 16 of the California Constitution.

We conclude that it does. It would be a clear violation of the plain language of article IX, section 16, if the Legislature passed a law giving the Mayor the right to appoint the members of the Board. But the constitutional provision would be annulled if the Legislature could simply bypass it by taking the powers of the Board away from that entity and giving them to the Mayor, or the Mayors appointee. This is nothing more than an end-run around the Constitution. If article IX, section 16 is to mean anything, it must mean that charter cities can not only choose the composition of their boards of education, but that charter cities are guaranteed freedom from legislative interference even when the Legislature is of the opinion that they have made the wrong choice.^[6]

On appeal, the Mayor and State defendants argue that the Constitutions grant of the power to choose whether to elect a board of education is limited only to that power, and does not imply that any such elected board of education would have any particular powers or duties. The Mayor relies on State Bd. of Education v. Honig, supra, 13 Cal.App.4th 720, for this proposition, while the State defendants rely on Cobb v. OConnell (2005) 134 Cal.App.4th 91. Both cases are distinguishable.

State Bd. of Education v. Honig, supra, 13 Cal.4th at p. 729, was concerned with a turf battle[] between the State Board of Education and the Superintendent of Public Instruction (State Superintendent). By statute, the State Board of Education is the legislative, policy‑making branch of the State Department of Education, while the State Superintendent is vested with executive functions. The State Board of Education adopted certain policies and sought a writ of mandate directing the State Superintendent to implement those policies. The State Superintendent took the position that he was under no clear ministerial obligation to do so. (Ibid.) At one point, the State Superintendent argued that the Legislature had exceeded its authority by designating the State Board of Education as the policy-making branch of the Department of Education. The State Superintendent argued that the framers of the California Constitution had intended to place the Superintendent in charge and control of the public school system and the state education department.  (Id. at p. 754.) He relied on article IX, section 2 of the California Constitution, which provides as follows: A Superintendent of Public Instruction shall be elected by the qualified electors of the State at each gubernatorial election. The Superintendent of Public Instruction shall enter upon the duties of the office on the first Monday after the first day of January next succeeding each gubernatorial election. Focusing on the language shall enter upon the duties of the office and on portions of the debates of the 1878-1879 Constitutional Convention, the [State] Superintendent assert[ed] article IX, section 2 limits the Legislatures plenary authority to define the Superintendents duties. (State Bd. of Education v. Honig, supra, 13 Cal.App.4th at pp. 754‑755.) In short, the State Superintendent argued that the duties of the office which the Constitution required him to perform could not be narrowed from the duties of the office which were then in existence when that language was adopted as part of the Constitution those duties apparently including being in charge of the Department of Education. (Id. at p. 755.)

The Honig court disagreed, concluding that nothing in the plain language of article IX section 2 limited the Legislatures authority to define the State Superintendents duties, noting that, when the duties of the office language in question was adopted, the State Superintendents duties were then defined by statute, and there was no reason to believe the Constitutional language was intended to deprive the Legislature of the authority to ever amend the statute. (Id. at p. 756.) The court added, Nor does a commonsense reading of the language the Superintendent shall enter upon the duties of the office create a right to take charge of and be in control of the public school system and the Department by virtue of that office alone. Our reading of article IX, section 2 is consistent with article IX considered as a whole. [Citation.] Although the Superintendent is a constitutional officer whose office cannot be extinguished by the Legislature, the powers and duties of that office may, and have been, increased and diminished by the Legislature under its plenary authority. (Id. at p. 756.)

The above-quoted language from State Bd. of Education v. Honig, supra, 13 Cal.App.4th at p. 756, does not control our interpretation of article IX, section 16 of the California Constitution. The LAUSD does not question the power of the Legislature to increase or diminish the powers and duties of local boards of education; indeed, much of the Education Code can be seen as limits on the power of local boards of education. We are instead concerned with a special law^[7]which provides that, although every other charter city in California may elect a board of education that can exercise all powers statutorily delegated to such local boards of education, Los Angeles may not. This case does not present a challenge to the Legislatures plenary power to limit the authority of local boards of education; it is a challenge to a legislative attempt to act where the voters of Los Angeles are given the exclusive power to act to determine the composition of its local board of education. The Legislature cannot transfer a local board of educations powers to a different entity and then say the charter city has no right to determine the composition of that entity since it is not a board of education.

The State defendants fare no better with Cobb v. OConnell, supra, 134 Cal.App.4th 91. To appreciate that conclusion, however, a brief discussion of Butt v. State of California, supra, 4 Cal.4th 668 is necessary. In April 1991, the Richmond Unified School District found itself in such dire financial straits that it intended to close the doors to its schools on May 1, thus cutting off the last six weeks of school. (Butt v. State of California, supra, 4 Cal.4th at p. 673.) Local parents brought suit against the State, seeking injunctive relief to keep the schools open. The trial court granted an injunction and the Supreme Court affirmed.^[8] The Supreme Court concluded that allowing the Richmond Unified School District to close its doors would constitute a violation of its students equal protection rights. Concluding that [t]he State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity (id. at p. 685), the court upheld, as a proper exercise of the trial courts authority to enforce its constitutional judgments, a preliminary injunction requiring the State Superintendent to take over governance of the Richmond Unified School District (in conjunction with a substantial emergency loan) until a recovery and payment plan could be established.^[9] (Id. at pp. 675, 694‑697.) In the course of its opinion, the Supreme Court noted that, in extreme cases, the state has a duty to intervene to prevent unconstitutional discrimination at a local level. (Id. at p. 688.)

It was just such an extreme case that led to Cobb v. OConnell, supra, 134 Cal.App.4th 91. In 2002, the Oakland Unified School District discovered that it had a deficit of $31 million, with another $50 million deficit projected for the following year. (Id. at pp. 93‑94.) The Legislature stepped in with emergency legislation to ensure that this fiscal crisis in the Oakland schools did not deprive students of their educational opportunities. (Id. at p. 94.) The state provided a $100 million loan, and temporarily transferred control of the schools to the state. The State Superintendent was to appoint an administrator to run the schools, with the local governing board remaining in an advisory capacity, for two years or until the projected completion of a specified plan to resolve the fiscal crisis. (Ibid.) Some Oakland residents brought suit, contending the temporary removal of authority from the elected school board violated the home rule provisions of the California Constitution and the Oakland City Charter.^[10] The Cobb court disagreed. Specifically, it concluded that there was no conflict with the Oakland City Charter because, [t]he Oakland school board continues to be elected as it always was before the emergency legislation, and the hiatus in the exercise of its ultimate responsibility is only temporary, during which period the board continues to serve in an advisory role. (Id. at p. 97.)

Story Continued as Part III ..

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^[1] The Los Angeles City Charter provides that the mayor may serve no more than two four-year terms in office. (L.A. Charter, 205, 206.) If Mayor Villaraigosa is elected to a second term, the Romero Act would expire shortly before he leaves office.

^[2] Additionally, plaintiffs alleged the Romero Act violated the home rule provisions of article XI, sections 3 and 5, and the Equal Protection guarantee of article I, section 7.

^[3] Judgment was, however, entered in favor of the State of California.

^[4] Appellants are divided into two groups. Mayor Villaraigosa and the intervenors filed a joint brief; the Governor, State Controller and State Board of Education filed another. When discussing their positions on appeal, we will refer to the groups respectively as the Mayor and the State defendants.

^[5] The Mayor cites to Grigsby v. King (1927) 202 Cal. 299, 304, for the proposition that local school boards are administrative agenc[ies] created by statute and invested only with the powers expressly conferred, subject to the limitations thereto attached by the legislature. Yet article IX, section 16 of the California Constitution clearly provides that local school boards, far from being created by statute, are every charter citys constitutional right to design by charter.

^[6] While we need not determine whether the Romero Acts delegation of decision‑making power over the cluster schools to the Mayors Partnership is a violation of article IX, section 14s provision granting the Legislature the authority to delegate decision-making power to the governing boards of all school districts, we find article IX, section 14 instructive. Proposition 5 (see fn. 4, ante), which adopted this language, was placed on the ballot because of a Legislative Counsel determination that the Legislature lacked the power to delegate decision-making authority to local governing boards in the absence of an express grant in the Constitution. When the voters considered whether to approve Proposition 5s language permitting the Legislature to delegate increased decision-making authority to the governing boards of local school districts, article IX, section 16 provided voters in charter cities the right to elect their local governing boards. It therefore appears that the voters understood that their approval of Proposition 5 would enable the Legislature to delegate increased authority only to the local governing boards that they could elect. There was never any suggestion that the Legislature somehow also possessed the authority to delegate increased decision-making power over local schools to a citys mayor and various appointees. (Cf. Dean v. Kuchel (1951) 37 Cal.2d 97, 99‑100, 104 [holding that an express grant of permission to delegate legislative powers to one entity does not prohibit a delegation of such powers to another entity unless such powers are denied expressly or by necessary implication].)

^[7] Article IX, section 14 of the California Constitution provides that [t]he Legislature shall have the power, by general law, to provide for the incorporation and organization of school districts, high school districts, and community college districts, of every kind and class, and may classify such districts. (Italics added.) The trial court concluded the Romero Act violated this provision as well, as it is a special law altering the organization of the LAUSD.

^[8] The Supreme Court was clear that its analysis was limited to an appeal from a grant of a preliminary injunction, not an appeal from a final judgment. (Butt v. State of California, supra, 4 Cal.4th at p. 678 & fn. 8.)

^[9] There was no challenge raised in Butt that the State Superintendents takeover of the Richmond schools was unconstitutional. Instead, the State had appealed, arguing that its delegation of educational authority to local school boards prevented it from having any additional duties to come to the aid of troubled districts.

^[10] They did not raise a challenge under article IX, section 16 of the California Constitution, although the court briefly mentioned that sections language in its opinion. (Cobb v. OConnell, supra, 134 Cal.App.4th at p. 97.)