Thursday, August 09, 2007

Supreme Court Denies Bid to Depublish Ruling on LAUSD Takeover

METROPOLITAN NEWS ENTERPRISE - a Los Angeles daily newspaper featuring articles on law and the courts, government, politics, business and health

by a MetNews Staff Writer

Thursday, August 9, 2007 - A Court of Appeal ruling striking down legislation shifting substantial control of the Los Angeles Unified School district to the city’s mayor as unconstitutional will remain binding precedent, the state Supreme Court decided yesterday.

In a unanimous vote at its weekly conference in San Francisco, the justices denied a request to depublish the April 17 ruling in Mendoza v. State of California, 07 S.O.S. 1900. Mayor Antonio Villaraigosa and state officials had decided not to seek the high court’s review, but Steve Barr, a former state Democratic Party finance chair and founder of a group of charter schools, petitioned the high court to depublish the opinion.

AB 1381, also known as the Romero Act, cannot be implemented because it would deprive LAUSD voters of their control over the district’s political structure, Justice Walter Croskey wrote for Div. Three in the opinion. The panel upheld a December 2006 ruling by Los Angeles Superior Court Judge Dzintra Janavs.

“The citizens of Los Angeles have the constitutional right to decide whether their school board is to be appointed or elected,” Justice H. Walter Croskey wrote.

“If the citizens of Los Angeles choose to amend their charter to allow the Mayor to appoint the members of the Board, such amendment would indisputably be proper,” he explained. “What is not permissible is for the Legislature to ignore that constitutional right and to bypass the will of the citizens of Los Angeles and effectively transfer many of the powers of the Board to the Mayor, based on its belief, hope, or assumption that he could do a better job.”

Attorneys for the state, the city, and a parents group supporting the legislation—which was heavily lobbied by Villaraigosa and his backers and signed by Gov. Arnold Schwarzenegger—argued that the bill was valid because it left the elected board intact, albeit with reduced clout.

The legislation would have shifted much of the board’s current authority over the district of more than 700,000 students to the superintendent, would have given the mayor a veto over the board’s appointment of the superintendent, and would have transferred control of certain low-performing schools from the board to an entity headed by the mayor. The bill was proposed after the Legislative Counsel opined that lawmakers could neither grant the mayor power to appoint the board nor transfer the board’s powers to the mayor.

But Croskey said the Legislature was attempting “nothing more than an end-run around the Constitution,” and wrote:

“We conclude that the Romero Act is an unconstitutional attempt to do indirectly what the Legislature is prohibited from doing directly. The Legislature cannot overrule the LAUSD’s voters’ determination that their Board is to be elected rather than appointed, nor may it transfer authority over part of the school system to entities outside of the public school system.”

The public’s control over the district “would be annulled.” Croskey elaborated, “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 Mayor’s appointee.”

In a footnote, the justice suggested that the legislation may also violate a constitutional provision requiring that legislation related to “the incorporation and organization of school districts,” be in the form of a general law, rather than a special law applicable to a single district.

In siding with the district, Croskey distinguished a Court of Appeal decision allowing the state to assume temporary control of the Oakland Unified School District as a condition of loaning the district funds to close a budget deficit.

While “the state may, and in some circumstances must, interfere with a local school board’s management of its schools when an emergency situation threatens the students’ constitutional right to basic equality of educational opportunity,” the jurist wrote, that is not the case here.

Croskey, who noted that Santa Ana and San Bernardino schools, among others, show lower test scores than LAUSD, explained:

“The Romero Act makes no findings of crisis in the LAUSD schools. Indeed, it could not, as LAUSD schools are not the worst in the state by any measure. Instead, the Romero Act purports to justify its interference with the Board’s authority on the basis that the LAUSD ‘has unique challenges and resources that require and deserve special attention to ensure that all pupils are given the opportunity to reach their full potential’....In the absence of any looming constitutional crisis, the ‘unique’ circumstances of the LAUSD do not, alone, constitute a basis for depriving the citizens of Los Angeles of their right to an elected Board running their school district.”

The mayor and the school board have subsequently agreed to form “partnerships” that would permit Villaraigosa a say in the management of some schools, but the parties have not fully agreed on details.

Depublication is the California Supreme Court's discretionary power to order that a Court of Appeal opinion not be published in the Official Reports, thus depriving the opinion of precedential Value. The supreme court derives its authority to depublish from art. 6, § 14 of the California Constitution. (providing for publication of "such opinions of the [s]upreme [c]ourt and courts of appeal as the [s]upreme[c]ourt deems appropriate") and Rule 976(c)(2) of the California Rules of Court (providing that "[a]n opinion certified for publication shall not be published, and an opinion not so certified shall be published, on an order of the [s]upreme [c]ourt to that effect"). - Depublish or Perish: Why depublication is good for the California judicial system by Kent L. Richland

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