CALIFORNIA CHARTER SCHOOLS ASSOCIATION v. LOS ANGELES UNIFIED SCHOOL DISTRICT

Respondent’s Petition for Review

Cal.February 13, 2013

S208611 Case No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CALIFORNIA CHARTER SCHOOLS ASSOCIATION, Plaintiffand Respondent, | Vv. LOS ANGELESUNIFIED SCHOOL DISTRICT,etal. Defendants and Appellants. ElCOURT LED After a Decision by the Court ofAppeal FEB 1 8 2013 Second Appellate District, Division Five Case No. B242601 Frank A. McGuire Clerk Los Angeles Superior Court Case No. BC438336 Deputy Honorable Terry A. Green, Presiding Judge, Dept. 14 PETITION FOR REVIEW LATHAM & WATKINS LLP CALIFORNIA CHARTER SCHOOLS James L. Arnone (Bar No. 150606) ASSOCIATION Winston P. Stromberg (Bar No. 258252) Ricardo J. Soto (Bar No. 167588) Evangeline A.Z. Burbidge (Bar No. 266966) Julie Ashby Umansky(Bar No. 183342) Michele L. Leonelli (Bar No. 280867) Phillipa L. Altmann (Bar No. 186527) 355 South Grand Avenue 250 East 1* Street, Suite 1000 Los Angeles, California 90071-1560 Los Angeles, California 90012 Telephone: (213) 485-1234 Telephone: (213) 244-1446 Facsimile: (213) 891-8763 Facsimile: (213) 244-1448 Email: james.arnone@lw.com Email: paltmann@calcharters.org Attorneys for Plaintiff and Respondent California Charter Schools Association Case No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CALIFORNIA CHARTER SCHOOLS ASSOCIATION, Plaintiffand Respondent, Vv. LOS ANGELES UNIFIED SCHOOLDISTRICT,et al. Defendants and Appellants. After a Decision by the Court of Appeal Second Appellate District, Division Five Case No. B242601 Los Angeles Superior Court Case No. BC438336 Honorable Terry A. Green, Presiding Judge, Dept. 14 PETITION FOR REVIEW LATHAM & WATKINSLLP CALIFORNIA CHARTER SCHOOLS James L. Arnone (Bar No. 150606) ASSOCIATION Winston P. Stromberg (Bar No. 258252) Ricardo J. Soto (Bar No. 167588) Evangeline A.Z. Burbidge (Bar No. 266966) Julie Ashby Umansky (Bar No. 183342) Michele L. Leonelli (Bar No. 280867) Phillipa L. Altmann (Bar No. 186527) 355 South Grand Avenue 250 East 1* Street, Suite 1000 Los Angeles, California 90071-1560 Los Angeles, California 90012 Telephone: (213) 485-1234 Telephone: (213) 244-1446 Facsimile: (213) 891-8763 Facsimile: (213) 244-1448 Email: james.arnone@lw.com Email: paltmann@calcharters.org Attorneys for Plaintiff and Respondent California Charter Schools Association Case No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CALIFORNIA CHARTER SCHOOLS ASSOCIATION, Plaintiffand Respondent, V. LOS ANGELES UNIFIED SCHOOLDISTRICT,etai. Defendants and Appellants. After a Decision by the Court of Appeal Second Appellate District, Division Five Case No. B242601 Los Angeles Superior Court Case No. BC438336 Honorable Terry A. Green, Presiding Judge, Dept. 14 PETITION FOR REVIEW TABLE OF CONTENTS Page I. ISSUE PRESENTED FOR REVIEW .........cccccccccccesssssesesssescsecsaesaves 2 II. WHY REVIEW SHOULD BE GRANTED...ccecececeeceecsseevecees 3 Ill. PROCEDURAL BACKGROUND........ccccccccccccesecsessecsscssvssveceseses 8 TV. DISCUSSION 000. ecececccesesseeseeseesseesesseceecsecsecsssccessecsecssvactassasees 9 A. The Appellate Courts’ Latitude To Ignore Language In A Regulation Is An Important Question Of Law Requiring Uniformity Of Decision............0.0ccccccecesesceneeeeee 9 1. CCSA v. LAUSD Impermissibly Renders Parts of Implementing Regulations Section 11969.3, Subdivision (b)(1) Meaningless..............cceccceeeee eee 12 2. CCSA v. LAUSD Also Impermissibly Rewrites Implementing Regulations Section11969.3, Subdivision (b)(1) By Inserting Language Into The Regulation 0...eee ccecescesseeseessseasseeecseecsessesscessessseaees 17 B. CCSA y. LAUSD Violates Separation Of Powers Principles Governing Quasi-Legislative Regulations........... 20 C. CCSA v. LAUSD Also Cannot Be Reconciled With Bullis Charter School v. Los Altos School District............... 25 V. CONCLUSION o.oo occcecceccesecescesececeecsesseeeesesessesensecaseaesesseesecaesesecsneas 27 TABLE OF AUTHORITIES Page CASES Apple Inc. v. Superior Court (2013) (Feb. 4, 2013, $199384) — Cab-4thcece10 Breslin v. City and County ofSan Francisco (2006) 146 CalApp.4th 1064 oo...ccccsessecsecsssscsseecsssensessesneneseess 11 Bullis Charter School v. Los Altos SchoolDistrict (2011) 200 CalApp.4th 1022 oo... ccccccccsecssceeeessesessenseeeseees 8, 25, 26, 27 Cal. Fed. Savings & Loan Assn. v. City ofLos Angeles (1995) 11 Cal4th 342ooccccccssecsscssesseccscsseesesscsscssveeseesentas 11, 17, 18 Cal. Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200 oo. eecececscsscseesseesesseseesesessenscsecsesesessessessssecssonee 4,21 Cal. School Bds. Assn. v. State Bd. ofEd. (2010) 191 Cal.App.4th 530 oo. cc cc cccccceccscssccsscscessccsesecseeseeessceseesanes 21,22 Calderon v. Anderson (1996) 45 CalApp.4th 607.0... ccccccscssesseeseesesessecsssscscssateeesseescsseatesaees 23 California Charter Schools Association v. Los Angeles Unified School District, et al. (Dec. 5, 2012, B242601) 212 Cal.App.4th 689.0...eeeceeeeespassim Cash v. Winn (2012) 205 CalApp.4th 1285 ooo. ccccesccssccsecsessecssescssecessccsecsessessesaeee 10 Cel-Tech Communications v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163 ooo ccccsccseessecsseessesecescseccacesscscssecessesesssassacesesees 11 Doe v. City ofLos Angeles (2007) 42 Cal.4th 531 oo. ceccceeesseceesceeeeseneceeseeeesesseeseesees 4,10, 12,17 Environmental Protection & Information Center v. Cal. Dept. ofForestry & Fire Protection (2008) 44 Cal. 4th 459oocccccsecseceessecsececsecsessesceecessccsssseescsscassesees 23 il Hoitt v. Dept. ofRehabilitation (2012) 207 CalApp.4th 513 oo.ccccccccssecesesecsecssesscsssescssssscasesesarees 9,17 In re Cabrera (2012) 55 Cal4th 683 oo. ccccscsscssesssseessecsesecsaecescsecsesssssessesacsassseeneeates 4 Metcalfv. County ofSan Joaquin (2008) 42 Cal.4th V12)eeccecssssesesesssescseeeeceeescescsscsesecscsstacsssenane 10 Pacific Gas & Electric Co. v. Superior Court (2006) 144 Cal.App.4th 19 ooo ccccccccsccsscssessesecseeecseesesecessesessscaceevsceasens 9 People v. Hudson (2006) 38 Cal.4th 1002 ooo. eeccecsecsessescssseseseseccaececssescessscssescsevecsssnevene 10 People v. Pieters (1991) 52 Cal.3d 894oeccccceeesesseseseseessesseseesesscscssesscssssscsstsctaesacens 10 Pulaski v. Occupational Safety & Health Stds. Bd., (1999) 75 Cal.App.4th 1315 oo. cccccccccsesscsscsseessesscsessssssesvserseserearenes 20 Rao v. Campo (1991) 233 Cal.App.3d 1557 .oicccccccccssscscessecssssesssssssseesstssssssassecerereeeas 17 Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986 0... cccccccccccccscesscseceeesessssecescsscsuvscesceeseeeeaes 23 S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374 oooccccecccscssessescessecseeesesseescscuscssesssssenes 11, 15, 16 Singh vy. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338 oc cccccccesccccsecssssesesssessscsecsccsvecssseerssneecers.18 Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 19 Cab.4th Dooncecccecsessessseeseesscsescssecsssssesscssssssssssusesveseees 21 STATUTES Code Civ. Proc., § 1858... cccecccccccccseseescessesssscesesesseseaseeneeesseesseensees 4,9, 13 Code Civ. Proc., § 695.010 .cecccccescessssssscesscscssccsevsscssssccacssssaseareatacaueeas 18 Ed. Code, § 47614, subd. (a) ....cccccccccessscssescessescsessesscssecssessesescssesscstsssseeness 6 Ed. Code, § 47614, subd. (D)(6) ....eccccceccssssessecsceeseesesesscseesssscsscsecerscereetens 22 il Gov. Code § 11346.9(a) oo.ceesesseseeseeestesteeeseseeseseeseacesesssseuecsesseseseasses 19 Gov. Code § 970.1 oo. eccecceseesessesseseessessesesessceaesscsscsssscessssscsecsesearscteseecseses 17 Gov. Code § 970.1) oo. eeceececescsseesssessesssscsensesesseseesesevsesessecessesscsscsuesesassaees 18 REGULATIONS Cal. Code Regs., tit. 2, § 1859.31] occcc eceesccsessessssesssrstsecsereeseeees 7,14 Cal. Code Regs., tit. 5, § 11969.3 oieccecccssesssesseseesctecsseseeeseees 13, 14, 22 Cal. Code Regs., tit. 5, § 11969.3, subd. (a)(1) occ. ceee cecssesecesceeceeeeseesees 13 Cal. Code Regs., tit. 5, § 11969.3, subd. (a)(2) .....cccccsccseesesenscessseseesscasees 24 Cal. Code Regs., tit. 5, § 11969.3, subd. (b)(1)..... ccc cceeseeeeeeeeeeees passim Cal. Code Regs., tit. 5, §§ 11969.1 — 11969.11occcccsteesecreeeees 2 RULES Cal. Rules of Court, rule 8.500(€)(1)........cce cece ceeesesssseseecesneessecsseeessenss 1 OTHER AUTHORITIES Final Statement of Reasons Accompanying the Proposition 39 Implementing Regulations............c cc cceeceesseeseeseseessseeeeescesesssseseesses passim Webster’s 9th New Collegiate Dict. (1990) oo. ceceessceseesteeseseseseseneeessees 10 iv PETITION FOR REVIEW TO THE HONORABLE CHIEF JUSTICE TANI GORRE CANTIL- SAKAUYE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: California Charter Schools Association (““CCSA”) respectfully petitions this Court for review of an Opinion by the Court of Appeal, Second Appellate District, in California Charter Schools Association v. Los Angeles Unified SchoolDistrict, et al. (Dec. 5, 2012, B242601) 212 Cal.App.4th 689 (“CCSA v. LAUSD”). The Opinion of the Court of Appeal becamefinal on February 3, 2013. Thus,this Petition is timely under Rule 8.500, subdivision (e)(1), of the California Rules of Court. A copy of the Court of Appeal’s December5, 2012, Opinion is attached hereto as Exhibit A. A copy of the Court of Appeal’s January 4, 2013, Order Granting Publication of the Opinion is attached hereto as Exhibit B. The Court of Appeal reversed the June 27, 2012, order of the Los Angeles County Superior Court, which was decided in favor of CCSA. L ISSUE PRESENTED FOR REVIEW May a local governmental body disregard statewide regulations whenthe local body decides, in its own discretion, that the statewide regulation is not consistent with the local body’s view ofthe “purpose” of the statute under which the statewide regulations were promulgated? The State Board of Education adopted regulations implementing Proposition 39 (“Prop. 39”), the voter-enacted law requiring public school facilities to be shared fairly amongall public school pupils, including those in public charter schools. (Cal. Code Regs., tit. 5, §§ 11969.1 — 11969.11 (“Implementing Regulations’”).) One Regulation describes how a school district must calculate the number of classroomsit must offer to a charter school by using a specific classroom inventory method. (Cal. Code Regs., tit. 5, § 11969.3, subd. (b)(1).) The Los Angeles Unified School District (“LAUSD”) refuses to use the Regulation’s classroom inventory method, and instead calculates the number of classroomsit offers charter schools by using whatit calls “norming ratios” which reduce the numberof classrooms it offers. The trial court ordered LAUSDto comply with the Regulation’s inventory method, and notto useits “norming ratios.” The Court of Appeal reversed, holding that LAUSD mayuseits “normingratios”instead of the classroom inventory method the Regulation specifies, because LAUSD had argued, without evidence, that the Regulation could have “anomalous results” in hypothetical situations. Did the Court ofAppeal err? Il. WHY REVIEW SHOULD BE GRANTED This Petition brings before the Court the issue of a local agency’s discretion to disregard statewide quasi-legislative regulations promulgated undera state administrative agency’s rulemaking authority. Review of this matter would secure uniformity of decision in the Courts of Appeal and settle important questions of law in conflict between the Courts of Appeal regarding the methodology courts should employin interpreting statutes and regulations and the deference courts should give to quasi-legislative regulations adopted by state administrative agencies. This matter would also settle important questions of law regarding schooldistricts’ compliance with Prop. 39 that are in conflict between the Courts of Appeal. How Much Deference Must CourtsAccord the Languageof an Applicable Quasi-Legislative Regulation? The primary issue in CCSA v. LAUSD is this: if a local governmental body disregards a statewide quasi- legislative regulation as being inconsistent with the local body’s view ofthe “purpose” of the statute under which the regulation was promulgated, must a reviewing court interpret the regulation to give effect to all of its words, or canit, like the local government body,ignore portions of that regulation and substitute its own language? The answerto this question is crucial becauseit will govern the relationship between the executiveorlegislative branch that promulgates legislation, and the judicial branch that adjudicates disputes arising from the text of such legislation. The complicated relationship between the executive, legislative, and judicial branches requires that each branch adhere tocertain principles so as ' not to interfere with the prerogative of the other branch. (See Jn re Cabrera (2012) 55 Cal.4th 683, 687.) The courts are often called upon to adjudicate disputes arising from various possible interpretations of a quasi-legislative regulation, or to determine whether that regulation was a proper exercise of an administrative agency’s rulemaking authority. Theprinciples that courts generally follow when interpreting a regulation ensure that the language of the regulation is the basis for its analysis, and that such languageis not to be omitted nor replaced. (See Doev. City ofLos Angeles (2007) 42 Cal.4th 531, 545; Code Civ. Proc., § 1858.) Moreover, to ensure a proper balance of power between branches of government, courts generally adhere to principles of deference and narrow review when reviewinglegislative acts by state administrative bodies. (See Cal. Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 211-12.) The Court of Appeal’s decision in CCSA v. LAUSDis in direct conflict with these established principles of interpretation and separation of powers. Rather than follow well-settled precedent, the CCSA v. LAUSD decision allows courts to ignore portions of a quasi-legislative regulation, and also to rewrite it to conform to a purportedlegislative intention that is contrary to that expressly provided for in the regulation andthe drafting agency’s statementof reasonsfor the regulation. The CCSA v. LAUSD decision also allows courts to implicitly invalidate quasi-legislative regulations without conducting a narrow review orgiving deferenceto the rulemaking process or the state agency’s interpretation of its own regulations. This gives local governmental bodies subject to statewide regulations discretion to ignore clear directions in regulationsif they subjectively believe that following the letter of the regulations would conflict with the “purpose”or “intent” of the statute under which the regulations were promulgated. This Court’s review is required to determine the appropriate latitude reviewing courts have wheninterpreting regulations promulgated by an administrative agency, pursuant to a grant oflegislative authority. CCSA requests that this Court determine whether courts can ignore significant and specific text of a regulation and give local governmental bodies the discretion to substitute in their own language. CCSA further requests that this Court consider whether courts can invalidate a quasi-legislative regulation by effectively striking a portion of the regulation, when such a reading conflicts with the rulemaking agency’s interpretation of howits own regulation is to function. Theissue that this case presents arises in the context of the important education reforms provided by the Charter Schools Act, which the Legislature enacted in 1992. In the two decadessince the passage of the Charter Schools Act, locating viable, appropriate, and affordablefacilities has proven to be one ofthe biggest challenges faced by public charter schools in California. To address this potential barrier to education reform, the voters passed Prop. 39 in 2000. Prop. 39 requires public school facilities to be “shared fairly amongall public schoolpupils, including those in charter schools.” (Ed. Code, § 47614, subd. (a).) In passing Prop. 39, California voters acknowledged that students attending charter schools are public school students, and that public schoolfacilities, while operated by schooldistricts, are paid for by taxpayers forthe benefit ofall of California’s public school students. The underlying lawsuit from which the issue presented here arises is a challenge to LAUSD’s consistent failure, year after year, to comply with Prop. 39. The part of that failure key to this Petition is LAUSD’s admitted use of a methodologyto calculate the numberof classroomsit offers charter schools that does not comply with the methodology clearly outlined in the Implementing Regulations. LAUSD has expressly admitted that in assigning the numberof teaching stations (classrooms) to charter schools seeking facilities, it uses schooldistrict “normingratios,” or in other words, the numberof students that LAUSD choosesto assign to a classroom. (Appellant’s Appendix (“AA”), Volume8, pages 2154-55 (hereinafter cited as ““Volume’ AA ‘Page’”); see also 9 AA 2412-13, 2424, 2435, 2447, 2457, 2468, 2480, 2486.) LAUSDuses these normingratios to allocate teachers, school administrators, schoolclerical positions, and various other resources to individual district-run schools. Neither Prop. 39 nor the Implementing Regulations mention school district “normingratios”or class-size standards. Rather, Section 11969.3, subdivision (b)(1) of the Implementing Regulations provides school districts with clear directions on how to calculate the numberofteaching stations to offer charter schools. The calculation requires schooldistricts to count the total numberof teaching stations at “comparison group schools” by “using the classroom inventory prepared pursuant to California Code of Regulations, title 2, Section 1859.31... .” (Cal. Code Regs., tit. 5, § 11969.3, subd. (b)(1).) Schooldistricts are to create a ratio of the teaching stations to those schools’ projected Average Daily Attendance (“ADA”). Thatratio is then required to be usedto calculate the numberof teaching stations a charter school mustbe allocated. Thediscretion that schooldistricts have under CCSA v. LAUSD to ignore a crucial part of the Implementing Regulations in makingfacilities offers to charter schools is an issue of statewide importance. Every year, hundredsof charter schools petition school districts for facilities. The manner in which schooldistricts determine what constitutes a fair allocation of space will impact the amountof space charter schools receive, thereby directly affecting the quality of education charter schools can provide to the public school students they serve. But the impactof this case is even broader than the 484,000 public school students who attend charter schools. | This case calls into question the degree upon whichall quasi-legislative regulations can berelied. Uniformity of decision is necessary to ensure certainty for the hundreds of cases each year which depend on this Court’s precedent regardingthe rules of construction and separation of powers. In addition, this Court’s review is required because the proper methodology schoo!districts must follow in complying with Prop. 39 and the Implementing Regulations is now uncertain. CCSA v. LAUSDis at odds with Bullis Charter School v. Los Altos SchoolDistrict (2011) 200 Cal.App.4th 1022 (Bullis), a decision from the Sixth Appellate District. As those cases also cannot be reconciled, CCSA respectfully requests that this Court also grant review to address this conflict. Hii. PROCEDURAL BACKGROUND In LAUSD’sfinal Prop. 39 facilities offers for the 2012-13 school year, LAUSD admitted that it used district-wide “normingratios” in allocating teaching stations (classrooms) to charter schools. On May17, 2012, CCSA filed a motion asserting that LAUSD’spractice failed to comply with the Implementing Regulations. On June 27, 2012,the trial court granted the motion and ruled that LAUSD’s use of “‘normingratios” to determine the numberof classroomsto offer charter schools violated Section 11969.3, subdivision (b)(1) of the Implementing Regulations. (10 AA 2805-08.) LAUSDappealed, and on December 5, 2012,the Fifth Division of the Second Appellate District issued an unpublished opinion reversing the trial court. Upon the urging of a numberofschooldistricts statewide who seek to emulate LAUSD’s decision to ignore part of the Implementing Regulations, the Second District ordered the opinion published on January 4, 2013. CCSA thenfiled a Petition for Rehearing on January 22, 2013, which the court denied. CCSArespectfully requests that this Court grant review of the decision reversing the trial court’s order in favor of CCSA. IV. DISCUSSION A, The Appellate Courts’ Latitude To Ignore Language In A Regulation Is An Important Question Of Law Requiring Uniformity Of Decision CCSA y. LAUSD creates a conflict with long-settled principles of statutory and regulatory construction. In interpreting statutes and regulations, courts are supposed “to ascertain and declare whatis in terms or substancetherein, not to insert what has been omitted, or to omit what has been inserted.” (Code Civ. Proc., § 1858, emphasis added; see also Pacific Gas & Electric Co. v. Superior Court (2006) 144 Cal.App.4th 19, 24 [applying § 1858 to regulations]; Hoitt v. Dept. ofRehabilitation (2012) 207 Cal.App.4th 513, 523 (Hoit#) [rules of statutory construction apply to the interpretation of regulations].) This Court recently stated that “[t]he rules governing statutory construction are uncomplicated andsettled.” (Apple Inc. v. Superior Court (2013) (Feb. 4, 2013, 5199384) — Cal.4th ___ [p. 3]). The CCSA v. LAUSD decisionputsthat statementin peril. Prevailing law provides that “[t]he fundamentalpurposeof statutory construction is to ascertain the intent of the lawmakersso as to effectuate the purposeofthe law.” (People v. Pieters (1991) 52 Cal.3d 894, 898.) In doing so, the court’s key role is to examine the wordsofthe statute or regulation,“attempting to give effect to the usual, ordinary import of the language and to avoid making any language mere surplusage.”' (Cash v. Winn (2012) 205 Cal.App.4th 1285, 1297.) Decadesofjurisprudence confirm these governing principles. Some examples are presentedhere. e In Metcalf. County ofSan Joaquin (2008) 42 Cal.4th 1121, 1135, this Court rejected an interpretation that would transform “meaningful words”in the statute “into meaningless surplusage,”as contrary to the rule of statutoryinterpretation that courts should avoid a construction that makes any word surplusage. ¢ In Doev. City ofLos Angeles, supra, 42 Cal.4th at p. 545, this Court held that “[i]n construing any statute, a court may not broaden or narrow the scope of the provision by reading into it languagethat does not appearin it or readingout ofit language that does.” ““Surplusage’ is defined as ‘excessive or nonessential matter.’” (People v. Hudson (2006) 38 Cal.4th 1002, 1017 [citing Webster’s 9th New Collegiate Dict. (1990), p. 1188].) 10 ¢ InS. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 385 (Berti), this Court held that “[e]ven when broadly construing a statute, we may not ‘ignore the plain statutory language’ or reach conclusions inconsistent with this language.” e¢ In Cel-Tech Communications v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 216, this Court held that “[wJhen construing a statute, a court must consider the entire statutory scheme of which it is part and give effect to all parts of the statute, avoiding an interpretation that would render any provision nugatory.” ¢ In Cal. Fed. Savings & Loan Assn. v. City ofLos Angeles (1995) 11 Cal.4th 342, 349 (Cal. Fed. Savings & Loan), this Court held that a court “may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.” e¢ In Breslin v. City and County ofSan Francisco (2006) 146 Cal.App.4th 1064, 1079, the court held that a court’s goalis “to interpret the language of the statute—notto insert what has been omitted or omit what has been inserted.” As explained in moredetail in subsections 1 and 2 below,CCSA v. LAUSDcreates a conflict with those long-settled principles of construction by (1) transforming meaningful wordsin a quasi-legislative regulation into meaningless surplusage and (2) inserting language into that same regulation 11 which appears nowhere in the Prop. 39 statute or the legislative history of the Implementing Regulations. Asa result of this conflict, there is no longer uniformity of decision between the Appellate Districts (or even internally within the Second Appellate District) regarding issues of statutory and regulatory interpretation. Principally, the CCSA v. LAUSD decision creates confusion as to the latitude a reviewing court has in construing statute or regulation. Is a reviewing court still obligated to follow the text of a statute or regulation, or 1s it now free to ignore some language, and substitute other language in its place? Asa result of the CCSA v. LAUSD decision, this question can no longer be answered with certainty. CCSArespectfully submits that the CCSA v. LAUSD opinion created a conflict with settled law in grantinga reviewing court entirely new authority to ignore the text of an applicable regulation. The split in authority created by CCSA v. LAUSDis irreconcilable. To secure uniformity of decision andsettle this important issue of law, CCSA urges the Court to grantthis Petition. 1. CCSA v. LAUSD Impermissibly Renders Parts of Implementing Regulations Section 11969.3, Subdivision (b)(1) Meaningless A court “may not broaden or narrow the scope ofthe provision by reading into it language that does not appear in it or reading out ofit languagethat does.” (Doev. City ofLos Angeles, supra, 42 Cal.4th at p. 12 545; Code Civ. Proc., § 1858.) Yet that is what the CCSA v. LAUSD opinion did in interpreting Implementing Regulations Section 11969.3, subdivision (b)(1). The CCSA v. LAUSD decision conflicts with this established principle of statutory interpretation by rendering meaningless two crucial sentences in Section 11969.3, subdivision (b)(1). In offering facilities to each charter school that submits a legally sufficient Prop. 39 request, school districts must comply with Implementing Regulations Section 11969.3. That regulation is to be used “to determine whetherfacilities provided to a charter school are sufficient to accommodate charter school students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending public schools ofthe district.” (Cal. Code Regs., tit. 5, § 11969.3.) Thefirst step in that determinationis for school districts to select “comparison group” schools: “district-operated schools with similar grade levels” and which the majority of charter school students would be enrolled in had they chosen to remain in a district-run school. Those schools serve as a standard against whichto base the schooldistrict’s facilities offer to the charter school, ensuring that facilities provided to a charter school are most like the facilities charter school students would have accessto if they attended district schools. (Cal. Code Regs., tit. 5, § 11969.3, subd. (a)(1).) A schooldistrict is then obligated to provide facilities to a charter school“in the sameratio of teaching stations (classrooms) to ADAas those 13 provided to students in the schooldistrict attending comparison group schools.” (Cal. Code Regs., tit. 5, § 11969.3, subd. (b)(1).) To establish that ratio, a district must determine the ADA?atthe comparison group schools by “using projections for the fiscal year and grade levels for which facilities are requested,” and the numberofteachingstations at the comparison group schools “using the classroom inventory prepared pursuant to California Code of Regulations, title 2, section 1859.31, adjusted to exclude classroomsidentified as ‘interim housing.” (/d.) It is undisputed that LAUSDdid not use a classroom inventory to determine the numberofteaching stations at the comparison group schools. Asthe CCSA v. LAUSD court recognized, LAUSD admitted that it used a different approach to calculate the numberof classrooms offered to charter schools: “normingratios used for District students.” The court found that this approach, even though in direct contravention to Section 11969.3, was acceptable because it would promote the “intent” of Prop. 39. In sanctioning a school district’s use of norming ratios as a means by which to determine the appropriate numberof classroomsthe district must offer to a charter school, the CCSA v. LAUSD opinion rendered portions of the regulation requiring the use of a classroom inventory meaningless. In essence, CCSA v. LAUSD took a pento the regulation as follows: 2 ADA is a percentage, typically between 92 to 97 percent, of a school’s overall enrollment, which accounts for student absences. (8 AA 2165.) 14 (1) Facilities made available by a school district to a charter school shall be provided in the same ratio of teaching stations (classrooms) to ADAasthose provided to students in the school district attending comparison group schools. School district ADA shall be determined using projections for the fiscal year and gradelevels for which facilities are requested. Charter school ADA shall be determined using in-district classroom ADA projected for the fiscal year and grade levels for which facilities are requested. teaching el ball bed ned_asine thee} (Cal. Code Regs., tit. 5, § 11969.3, subd. (b)(1), strikethrough added.) Such an interpretation “omit{s] what has been inserted” in the regulation, contravening well-settled rules of construction and placing Second Appellate District jurisprudence squarely at odds with precedent from this Court and the other Appellate Districts. As an example, in Berti, this Court affirmed a judgment preventing defendants from recovering fees and costs because the statute required the defendantto file an anti-SLAPP motionfirst. (Berti, supra, 39 Cal.4th at pp. 377-78.) Plaintiffs had dismissed their action before defendantsfiled the motion. (/d.) This Court held that becausethe statute allowing for recovery stated that “only a ‘prevailing defendant on a special motion to 15 strike’ may recover attorney fees and costs,” the “filing of a viable anti-SLAPP motion”is a prerequisite to recovery. (/d. at p. 380.) This Court refused to ignore the statutory language, stating that “[e]ven when broadly construing a statute, we may not ‘ignorethe plain statutory languageor reach conclusionsinconsistent with this language.’”(/d.at p. 382.) Muchlike the statutory prerequisite for recovering fees for an anti- SLAPP motion beingthe filing of the motion, a prerequisite for a school district to determine the ratio of teaching stations (classrooms) to ADAat the comparison group schoolsis the use of a classroom inventory. (Cal. Code Regs., tit. 5, § 11969.3, subd. (b)(1).) However, unlike this Court in Berti, the CCSA v. LAUSD court ignored and rendered meaningless the plain languagein the regulation by allowing LAUSDto use normingratios as a shortcut to the regulation’s clear procedure. In addition, CCSA v. LAUSD disregarded established rules of statutory construction by finding, without any evidence, that interpreting Section 11969.3, subdivision (b)(1) to require school districts to use a classroom inventory to determine how manyclassroomsto offer charter schools “may well have anomalousresults.” (CCSA v. LAUSD,212 Cal.App.4th at p. 695.) Even if an interpretation might arguably lead to anomalous results— a claim that CCSA could disproveif the well-settled rules of interpretation are actually applied—the decision conflicts with case 16 law stating that in such a situation the statute and regulationsarestill to be interpreted to be “reasonable and workable.” (See Hoitt, supra, 207 Cal.App.4th at p. 52.) “Tt is a well-settled principle of statutory interpretation that the various parts of a statute must be considered as a whole to avoid absurd or anomalousresults by harmonizing any apparently conflictingprovisions; and thus, @ particularpart ofa statutory enactment must be viewedin light ofthe enactmentin its entirety. Moreover, statutes should not be interpreted in a mannerto render parts ofthem superfluous.” (Raov. Campo (1991) 233 Cal.App.3d 1557, 1567, emphasis added.) The CCSA y. LAUSDdecision doesnot dothat. 2. CCSA v. LAUSD Also Impermissibly Rewrites Implementing Regulations Section 11969.3, Subdivision (b)(1) By Inserting Language Into The Regulation CCSA v. LAUSD’s sanctioning ofa schooldistrict’s use of norming ratios has a second impermissible consequence: it reads into the regulation “language that does not appear in it.” (Doe v. City ofLos Angeles, supra, 42 Cal.4th at p. 545.) This Court and the Appellate Districts have soundly rejected such an approachto the construction of statutes and regulations. For example, in Cal. Fed. Savings & Loan, this Court declined to add language to Government Code Section 970.1, which would have had the effect of exempting public entities from paying the statutorily mandated 17 postjudgmentinterest rate of ten percent. (Cal. Fed. Savings & Loan, supra, 11 Cal.4th at p. 349.) Specifically, this Court declined to “rewrite Government Codesection 970.1, subdivision (b), [which states that a judgmentis ‘not enforceable underTitle 9’] to provide that judgmentsare ‘not enforceable under Division 2 ofTitle 9 of Part 2 (commencing with Section 695.010) of the Code of Civil Procedure.’” (/bid., emphasis in original.) This Court noted that had the Legislature intended to include such language, it “could have readily done so,” holding that “[w]e may not, underthe guise of construction, rewrite the law or give the wordsan effect different from the plain and direct import of the terms used.” (/bid.) In addition, even a different division of the same Appellate District that decided CCSA v. LAUSD hasapplied this well-settled canon of construction in refusing to insert unstated languageinto a statute or regulation. In Singh v. Southland Stone, U.S.A., Inc., the Third Division of the Second Appellate District refused to add qualifying language to a provision of the Labor Code requiring the payment of earned wages. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 362- 63.) The court stated: “We cannotinsert qualifying language whereit is not stated or rewrite the statute to conform to a presumed intentionthat is not expressed.” (/d. at p. 363.) In drafting the Implementing Regulations for adoption by the State Board of Education, the Department of Education specified the mannerin 18 which a school district is to account for its classroom facilities, in order to share them fairly with charter schools. The Department of Education could haveeasily written the Implementing Regulations so as to allow a school district to use district-wide normingratios in assigning classroom space to a charter school. It did not.’ By allowingdistricts to use norming ratios to assign classroomsto charter schools, however, the CC'SA v. LAUSD court has improperly read extraneous languageinto the text of the regulation. Tellingly, before presenting the Implementing Regulations to the State Board for adoption over ten years ago, the Department of Education solicited written comments, took oral testimony, and responded to comments raised regarding the language of the proposed Implementing Regulations. (See CCSA’s RJN, Exh. A, pp. 19-30.) The Department of Education fielded multiple comments on the subject of what constitutes “conditions reasonably equivalent.” (d. at pp. 22-23.) Though LAUSD and other school districts commented on and providedoral testimony regarding the proposed Implementing Regulations, no one raised any concern about the Implementing Regulations’ proposed method of > Pursuant to Government Code Section 11346.9, subdivision (a), a Final Statement of Reasons accompanied the State Board’s adoption of the Implementing Regulations. (See CCSA’s Motion Requesting Judicial Notice (“RJN”), Exh. A.) The concept of “normingratios” appears nowherein the Final Statement of Reasons, including in its discussion of a district’s obligation to provide facilities that have the sameratio of teaching stations to ADA as comparison group schools. (See id., Exhibit A, p. 11.) 19 calculating teaching stations using the classroom inventory. (Id. at pp. 11, 19, 22-23.) Byboth ignoring theplain language of Section 11969.3, subdivision (b)(1) of the Implementing Regulations and adding text to that regulation, the Fifth Division of the Second Appellate District has sanctioned a method of statutory and regulatory interpretation thatis directly in conflict with this Court’s and other Appellate Districts’ jurisprudence (as well as with the CodeofCivil Procedure). That conflict creates uncertainty for countless groups and individuals throughoutthe state that must rely on regulations promulgated by administrative agencies. Uniformity of decision is necessary to ensure that well-settled canonsofconstruction are applied consistently by the courts. CCSA respectfully requests that this Court grant review to resolve these important questionsof law. B. CCSA y. LAUSD Violates Separation Of Powers Principles Governing Quasi-Legislative Regulations “Ofall the activities undertaken by an administrative agency, quasi- legislative acts are accorded the mostdeferential level ofjudicial scrutiny.” (Pulaski v. Occupational Safety & Health Stds. Bd. (1999) 75 Cal.App.4th 1315, 1331.) Courts are to “exercise limited review oflegislative acts by administrative bodies out of deference to the separation of powers between the Legislature and the judiciary,to the legislative delegation of 20 administrative authority to the agency,and to the presumedexpertise of the agency withinits scope of authority.” (Cal. Hotel & Motel Assn. v. Industrial Welfare Com., supra, 25 Cal.3d at p. 211-12; Yamaha Corp. of America v. State Bd. ofEqualization (1998) 19 Cal.4th 1, 10 [“(f authorized by the enabling legislation, [quasi-legislative regulations} bind this and other courts asfirmly as statutes themselves.”].) The CCSA v. LAUSD decision conflicts with these firmly established principles governing the proper deference accorded to quasi-legislative regulations adopted by an administrative agency. In opposing CCSA’strial court motion and on appeal, LAUSDneverexplicitly challengedthe validity of Section 11969.3, subdivision (b)(1). The CCSA v. LAUSD court did not conduct an inquiry into the regulation’s validity. Nevertheless, by ignoring portions ofthe regulation and inserting substitute language found nowhere in the Prop. 39 scheme, the Second Appellate District implicitly invalidated part of the regulation. That contravenes separation of powers principles and puts CCSA v. LAUSDin tension with a decision by the Third Appellate District upholding the Implementing Regulations as a valid exercise of the State Board’s rulemaking authority under Prop 39. (See generally, Cal. School Bds. Assn. v. State Bd. ofEd. (2010) 191 Cal.App.4th 530 (“CSBA”).) Review by this Court is required to secure uniformity of decision. 21 The statutory language of Prop. 39 obligated the Department of Education to propose regulations implementing Prop. 39 for the State Board of Education’s consideration, including the definition of “conditions reasonably equivalent.” (Ed. Code, § 47614, subd. (b)(6).) The Departmentof Education did so, and the State Board adopted the Implementing Regulations containing explicit criteria for determining whetherfacilities provided to a charter school are reasonably equivalent to the facilities the charter school students would occupy were they attending a district-run school. (Cal. Code. Regs., tit. 5, § 11969.3.)* The State Board undertook a rigorous process with input from many stakeholders to enact the Implementing Regulations, and acted well within its authority in adopting Section 11969.3, subdivision (b)(1). The Implementing Regulations are quasi-legislative rules and thus are subject to narrow review. (CSBA, supra, 191 Cal.App.4th at pp. 542- 44.) The CCSA v. LAUSD decision conflicts with these well-established principles. By holding that a school district’s use of “norming ratios” in allocating classroom space to charter schools complies with the “intent” of Prop. 39, the decision implicitly invalidates the last two sentences of Section 11969.3, subdivision (b)(1) as inconsistent with the intent of Prop. 39. Principles of administrative law and separation of powers do not allow * The State Board adopted the Implementing Regulations in 2002 and amendedthem in 2008. (CSBA, supra, 191 Cal.App.4th 530, 542.) 22 courts to ignore the heart of a regulation and arriveat a result that allows local governmental bodies,at their discretion, to ignore its commands. The CCSA v. LAUSD decisionis also in conflict with cases holding that courts are to recognize and defer to an administrative agency’s interpretation of its own regulations. (See Environmental Protection & Information Center v. Cal. Dept. ofForestry & Fire Protection (2008) 44 Cal. 4th 459, 490 [noting that “courts will be deferential to government agency interpretations of their own regulations, particularly when the interpretation involves matters within the agency's expertise and does not plainly conflict with a statutory mandate”]; Ridgecrest Charter Schoolv. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1000 [Final Statementof Reasonsforthe Implementing Regulationsis entitled to consideration and respect by the courts]; Calderon v. Anderson (1996) 45 Cal.App.4th 607, 613 [an agency’s interpretation of its own regulationsis entitled to respect and deference].) The CCSA v. LAUSD court failed to consider and defer to the State Board’s interpretation of the Implementing Regulations in the Final Statement of Reasons. Asdiscussed above, comparison group schoolsplaya vital role in assisting schooldistricts to make Prop. 39 compliantfacilities offers to charter schools and in doing so determine whetherthosefacilities are 23 “reasonably equivalent.”° In the Final Statement of Reasons accompanying the Implementing Regulations, the State Board made clear that school districts are not to use district-wide standards in assessing comparison group schools used in making Prop. 39 offers. Using normingratios, however, does exactly that. The Final Statement of Reasonsstates: [Section 11969.3, subdivision (a),] establishes a standard that is a middle ground between a comparison group that consists ofall district-operated schools and a comparison group that consists of one to three schools. Using all district-operated schools as the comparison group would present administrative and data problems for school districts. In addition, for large school districts, using all district-operated schools as the comparison group would result in a standard that might be significantly different than the neighborhood schools the charter school students would otherwise attend. (This is because in large school. districts the conditions in schools may vary widelyfrom neighborhood to neighborhood.) (CCSA’s RJN, Exhibit A, pp. 10-11, emphasis added.) Bysanctioning the use of district-wide norming ratios as a method of providing classroomsto charter schools, the CCSA v. LAUSD court makes pointless the comparison group analysis required in the Implementing Regulations and explainedin the Final Statement of Reasons. That results > The Implementing Regulations specify that comparison group schools for a Prop. 39 offer made to a charter school must consist only ofdistrict-run schools with similar grade levels that serve students living in the high school attendance area in which the largest numberof that charter school’s students reside. (Implementing Regulations, § 11969.3, subd. (a)(2).) 24 in the kind ofdistrict-wide comparison group specifically rejected by the Implementing Regulations and the Final Statement of Reasons. In sum, by implicitly invalidating a portion of the regulation and failing to recognize and defer to the State Board’s expertise, the CCSA v. LAUSD opinionis in conflict with well-settled separation of powers jurisprudenceof this Court and other Appellate Districts. As with the standardsfor interpreting statutes and regulations, uniformity of decisionis required to maintain consistent principles governing the assessmentof the legality of quasi-legislative rules and the proper deference to be accorded to administrative agencies that promulgate and interpret such rules. CCSA respectfully requests that this Court grant the Petition to resolve these important legal issues. Cc. CCSA v. LAUSD Also Cannot Be Reconciled With Bullis Charter School vy. Los Altos School District Finally, the CCSA v. LAUSD decisionis also in conflict with a Sixth Appellate District decision interpreting a school district’s duties to provide reasonably equivalent facilities to charter schools. (See Bullis, supra, 200 Cal.App.4th 1022.) In Bullis, a charter school challenged the school district’s compliance with Prop. 39, claiming that the district failed to provide an offer of reasonably equivalentfacilities. Ud. at p. 1029.) In finding that the district did not comply with Prop. 39, the Bullis court held that “[i]n makingits facilities offer, the school district must make a good 25 faith effort to consider and accurately measureall ofthefacilities ofthe comparison group schools and accurately describe thefacilities offered to the charter school. It is only through such an approach that one can determine whether ‘reasonably equivalent’ facilities have been offered by the school district.” (/d. at p. 1030, emphasis added.) The schoo] district argued that in assessing non-teaching space at comparison group schools, it was only required to consider space “common to each of the schools in the comparison group.” (/d. at p. 1047.) But the Sixth Appellate District rejected this narrow view of the Implementing Regulation, noting that such an “approach would allow a comparison group school’s subjective use determination of its nonclassroom spaceto control the analysis.” (/bid.) The Bullis court held that a school district “must take an objective look at all [non-teaching] space available at the schools in the comparison group,” andsatisfies its Prop. 39 obligations “onlyif it considers the entire nonclassroom spacein the facilities offer.” (bid.) The court ultimately concluded that a district violates Prop. 39’s “reasonable equivalence” mandate whenit provides “an incomplete and inaccurate report of... the comparison group schools’ facilities.” (/d. at p. 1060.) Though Bullis dealt with non-teaching station space, as opposed to teaching station (classroom) space,its rationalestill applies here, and the CCSA v. LAUSD decisionis in conflict with it. It is undisputed that LAUSDdid not provide a complete report of the projected ADA and 26 projected teaching stations (classrooms) at the comparison group schools identified in LAUSD’sfacilities offers. Rather, LAUSD used district-wide normingratios to offer teaching station (classroom) space to charter schools, which could result in existing, unused classroom space being wasted (1.e., withheld from charter schools). Nevertheless, the CCSA v. LAUSDcourt did not see this as a Prop. 39 violation. Bullis and CCSA v. LAUSD are at odds, and that creates uncertainty for both school districts making Prop. 39 facilities offers and charter schools that depend on public schoolfacilities to operate successfully. Given this conflict, CCSA respectfully requests this Court grant review to address the important legal questions presented bythis case. V. CONCLUSION . The CCSA v. LAUSD decision has cast doubt on the proper method of interpreting quasi-legislative regulations and deferring to administrative agencies’ promulgation of such regulations. In doing so, the CCSA v. LAUSDdecisionclears the way for a regulated local governmental body to disregard languagein a state agency’s quasi-legislative regulations when the local body decides, in its own discretion, that the regulations are not consistent with the local body’s interpretation of the “purpose”of the statute under which the regulations were promulgated. 27 CCSArespectfully submits this Petition for Review and asks that this Court grant review to consider these important questions of law and to resolve the split in authority created by the Court of Appeal’s decision. Respectfully submitted, DATED: February 13, 2013 LATHAM & WATKINS LLP James L. Arnone Winston P. Stromberg Evangeline A.Z. Burbidge Michele L. Leonelli By: Qafr James L. Amone UV Attorneysfor Plaintiffand Respondent California Charter Schools Association 28 CERTIFICATION OF WORD COUNT Pursuant to Rule 8.204(c) of the California Rules of Court, I certify that the word count for the brief above, excluding the caption andtables of contents and authorities is 6,264 words. I relied upon the word count feature provided by Microsoft Word. DATED:February 13, 2013 LATHAM & WATKINS LLP James L. Arnone Winston P. Stromberg Evangeline A.Z. Burbidge Michele L. Leonelli By: Ayn2 Evangeline A.Z. Burbidge Attorneysfor Plaintiffand Respondent California Charter Schools Association LA\3042013.8 29 Filed 12/5/12; pub. order 1/4/13 (see end of opn.; reposted 2/5/13 to provide corrected pub. order) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE CALIFORNIA CHARTER SCHOOLS B242601 ASSOCIATION, (Los Angeles County Plaintiff and Respondent, Super. Ct. No. BC438336) Vv. LOS ANGELES UNIFIED SCHOOL DISTRICTetal., Defendants and Appellants. APPEALfrom an order of the Superior Court of Los Angeles County, Terry A. Green, Judge. Reversed. Orbach, Huff& Suarez, David M. Huff, Marley S. Fox, Joanna Braynin; MarkS.. Fall for Defendants and Appellants. Latham and Watkins, James L. Arnone, Winston P. Stromberg, Michele L. Leonelli; California Charter Schools Association, Ricardo J. Soto, Julie Ashby Umanksy and Phillipa L. Altmann for Plaintiff and Respondent. EXHIBIT A 30 I. INTRODUCTION Public schooldistricts are required to share their facilities fairly amongall public school pupils, including those in charter schools. (Ed. Code § 47614, subd.(a) (Proposition 39).)' “Each schooldistrict shall make available, to each charter school operating in the schooldistrict, facilities sufficient for the charter school to accommodate all of the charter school’s in-district students in conditions reasonably equivalent to those in which the students would be accommodatedifthey were attending other public schools of the district.” (/d. at subd. (b).) Atissue in this appeal is whetherthe trial court erred in finding that the Los Angeles Unified School District (“District”) violated California Code of Regulations,title 5, section 11969.3, subdivision (b)(1))* when it used norming ratios as a method of assigning classroom spaceto charter schools. Il. FACTUAL AND PROCEDURAL BACKGROUND On May17, 2007, the California Charter Schools Association (“CCSA”)filed two lawsuits against the District claiming that the District failed to comply with Proposition 39 in extending facilities offers to charter schools. On April 22, 2008, CCSA and the District entered into a settlement agreementto resolve those lawsuits. Paragraph 3 of the settlement agreementstates: “Provided that a CCSA member charter school submits future facilities request that is legally sufficient under Proposition 39 and any Proposition 39 implementing regulations in effect at that time, LAUSD shall makea facilities offer to that charter school that complies with Proposition 39 and any Proposition 39 implementing regulations in effect at that time. This obligation shall apply to requests for facilities that are submitted for the 2008-2009 school year, shall All further statutory references are to the Education Code, unless otherwise noted. ° Further references to “regulation” are to sections undertitle 5 of the California Code of Regulations, unless otherwise noted. 2 EXHIBIT A 31 inure to the benefit of all CCSA membercharter schools, including without limitation to PUC and Green Dot, and shall continue for the term of this Agreement.” Byits terms, the settlement agreement was to remain in effect until June 30, 2013. On May24, 2010, CCSAfiled a complaint for breach of settlement agreement, and violation of Proposition 39 seeking specific performance, permanentinjunction, appointmentof special master and declaratoryrelief. (“Complaint”) CCSA’s complaint included a first cause of action for breach of settlement agreementfor failure to makefacilities offers pursuant to Prop. 39 and a seventh cause of action for declaratory relief for failure to provide facilities offers pursuant to Prop. 39. On September 8, 2010 CCSA filed a motion for summary adjudication ofthefirst and seventh causesof action. On December7, 2010,the trial court entered an order granting in part CCSA’s motion for summaryadjudication. Thetrial court ordered the District to extend facilities offers to all charter schools that submitted legally sufficient facilities requests for the 2011-2012 school year and to make Proposition 39 — compliant facilities offers to all CCSA membercharter schools that submit legally sufficient facilities offers for future school years until the term of the settlement agreement ends on June 30, 2013. The trial court denied CCSA’s requests for injunctive and declaratory relief. The issuanceof this order was not challenged by the District. On May17, 2012, CCSA filed a motion to enforce the trial court’s December7, 2010 order with regard to the District’s facilities offers for the 2012-2013 school year. CCSAasserted that the District’s final facilities offers for the 2012-2013 school year failed to provide facilities to charter schools in the sameratio of teaching stations (classrooms) to ADA [Average Daily Attendance] as those providedto students in the schooldistrict attending companion group schools, as required by Regulation § 11969.3, subdivision (b)(1). CCSA objected to the District’s use of normingratios used for District students. * 3 The District defines “norming ratios” as follows: “Norms — Most District schools receive their base allocations of teachers, schoo! administrators, schoolclerical positions, 3 EXHIBIT A 32 In its opposition, the District claimed that it provided classroomsto charter school students in the sameratio of students to classroomsthatit provided to students attending District operated schools. Specifically, the District provided classroomsto its own studentsat ratios of no less than 24:1 for grades K-3; 30.5:1 for grades 4-6; 28:1 for grades 7-8; and 30:1 for grades 9-12. It was the District’s position that the use of norming ratios was an appropriate tool by which the District ensured an equalratio of ADAto classroomsin a charter schooland its District comparison group schools. On June 27, 2012, the trial court ruled that the District’s use of normingratios to determine the numberof classroomsto provide to charter schools violated California Code of Regulations,title 5, Section 11969.3, subdivision (b)(1). Thetrial court ordered that “in determining the numberofteaching stations to provide to charter schools requesting facilities under Prop. 39, LAUSD must comply with Section 11969.3(b)(1) of the Prop. 39 Implementing Regulations, and must not use ‘normingratios’ to reduce teaching stations offered to charter schools in the future.” The District appeals this order. Il. DISCUSSION The District asserts that the order of June 27, 2012 is an injunction. CCSA characterizes it as an enforcementorder. It is of no significance whatit is called because this appeal presents a legal issue which requires review de novo. Appellate courts independently determine the properinterpretation of a statute. (People ex rel. Lockyerv. Shamrock Foods Ce. (2000) 24 Cal.4th 415, 432; In re Clarissa H, (2003) 105 Cal.App.4th 120, 125.) . Theissue is one of statutory and regulatory construction. The declared intent of Proposition 39 is “that public school facilities should be shared fairly amongall public and various resources, on the basis of Board—approved ‘norms,’ which determine the resourcesto be allocated to individual schools.” 4 EXHIBIT A 33 school pupils, including those in charter schools.” (Ed. Code § 47614, subd.(a).) “Each schooldistrict shall make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school’s in-district students in conditions reasonably equivalent to those in which the students would be accommodatedif they were attending other public schools of the district”... . (§ 47614, subd. (b).) The State Board of Education adopted regulations implementing the provisions of section 47614. (Regulations 11969.1 et seq.) The focus of this appealis the interpretation of regulation 11969.3, subd. (b)(1).* CCSA emphasizesthat the regulatory language explicitly states that “the number of teaching stations (classrooms) shall be determined using the classroom inventory prepared pursuant to California Code of Regulations, title 2, section 1859.31, 5} adjusted 4 Subdivision (b) of regulation 11969.3 reads in part: “(b) Capacity [{] (1) Facilities made available by a schooldistrict to a charter school shall be provided in the sameratio of teaching stations (classrooms) to ADA as those provided to students in the school district attending comparison group schools. Schoo] district ADA shall be determined using projections for the fiscal year and grade levels for which facilities are requested. Charter school ADAshall be determined using in-district classroom ADA projected for the fiscal year and grade levels for which facilities are requested. The numberof teaching stations (classrooms) shall be determined using the classroom inventory prepared pursuant to California Code of Regulations,title 2, section 1859.31, adjusted to exclude classroomsidentified as interim housing. . . .” ° California Code of Regulations,title 2, section 1859.31 reads: [{] The district shall prepare a gross inventory consisting of all classrooms ownedorleased in the district, the HSAA or super HSAAasappropriate. For the purpose ofthis gross classroom inventory, the following shall be considered a classroom. Any classroom:(a) for which a contract was signed for the construction or acquisition offacilities or for which construction work has commencedat the time the SFP application for determination ofeligibility is submitted to the OPSC; (b) constructed with funds from the LPP;(c) used for Special Day class or Resource Specialist Programs; (d) that are standard classrooms, shops, science laboratories, computer laboratories, or computer classrooms; (e) acquired or created for Class Size Reduction purposes; (f) used for preschool programs; (g) converted to any non-classroom purposeincluding use by others; (h) with Housing and Community Development or Department of Housing insignia; (i) acquired for interim housing for a modernization project; (j) leased or purchased underthe State Relocatable Program pursuant to Chapter 14 of Part 10 of the Education Code; (k) that 5 EXHIBIT A 34 to exclude classroomsidentified as interim housing. .. .”. The regulations havea clear formula that does not rely on how manystudentsa district decides to put in each classroom asa district-wide average, but rather on how manystudents and classrooms, whetherthey are used as classroomsornot, the district has in the relative comparison group schools. The District responds that § 47614, subdivision (b) requires the district to accommodate charter school students in the same manner they would be accommodated if they attended District public schools. The District counts classroomsactually provided to students in the schooldistrict attending comparison group schools in determining the ratio of students to classroomsused to allocate space to charter schools. The District contends regulation §11969.3 subd. (b)(1) should be analyzed by focusing on the language“Facilities made available by a schooldistrict to a charter school shall be provided in the sameratio of teaching stations (classrooms) to ADAasthose providedto students in the school district attending comparison group schools” rather than the gross classroomsin existence. Weread regulation § 11969.3, subdivision (b)(1) as requiring the District to provideits facilities to charter schools in a mannerthat will promote the intent of Proposition 39 of public school facilities being shared fairly amongall pupils, including those in charter schools. We makea distinction between facilities that are “provided” and “classroom inventory.” Regulation 11969.3, subdivision (b)(1) states “[flacilities made available by a schooldistrict to a charter school shall be providedin the sameratio of teaching stations (classrooms) to ADA as those provided to students in the school district attending companion group schools.” (Emphasis added.) Wehave been unable to find and neither party has referred us to any regulatory history bearing upon the meaningto be ascribed to the word “provided”as used in regulation § 11969.3, subdivision (b)(1). “[C]ourts should give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.” have a waiver for continued use by the Board for Field Act exemptions;(1) used for Community School purposes; (m) included in a closed school.” 6 EXHIBIT A 35 [Citations.] (Merrill v. Department ofMotor Vehicles (1969) 71 Cal.2d 907, 918.) Webster’s dictionary defines “provide” as “to supply” and “provided”as “supplied” or “equipped.” (Webster’s 3d. New Internat. Dict. (2002) p. 1827.) If we were to adopt the analysis proffered by CCSA,it may well have anomalous results. For example, the District would have to count classroomsthat have been contracted for but not yet built and classroomsat closed schoolsites. “It is well established that a statute open to more than one construction should be construed so as to avoid anomalousor absurdresults.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 18.) The District’s use of normingratios is consistent with the intent of Proposition 39. It furthers the goal of ensuring that public school facilities are being shared fairly among all public school pupils and that the charter school’s in-district students are being accommodated in conditions reasonably equivalent to those in which those students would be accommodatedifthey were attending other public schools of the District. IV. DISPOSITION The order of June 27, 2012 is reversed. Theparties are to bear their own costs on appeal. FERNS,J.” Weconcur: TURNER,P.J. KRIEGLER,J. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 7 EXHIBIT A 36 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE CALIFORNIA CHARTER SCHOOLS B242601 ASSOCIATION, (Los Angeles County Plaintiff and Respondent, Super. Ct. No. BC438336) Vv. LOS ANGELES UNIFIED SCHOOL DISTRICTetal., ORDER CERTIFYING OPINION Defendants and Appellants. FOR PUBLICATION [NO CHANGEIN JUDGMENT] THE COURT: The opinion in the above-entitled matter filed on December 5, 2012 was not certified for publication in the Official Reports. Upon application of appellants and for good cause appearing, it is ordered that the opinion shall be published in the Official Reports. | Pursuant to California Rules of Court, rule 8.1105(b), this opinion is certified for publication. FERNS,J.” TURNER,P.J. KRIEGLER,J. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. EXHIBIT A 37 CERTIFIED FOR PUBLICATION IN THE COURT. OF APPEAL OF THE STATE OF CALIFORNIA - . COURTOF APPEAL- SECONDDIST. SECOND APPELLATE DISTRICT Tit Je ID DIVISION FIVE | das = 420g JOSEPHA,LANEClerk CALIFORNIA CHARTER SCHOOLS B242601 (omeomnmnmnmmnseeaty Clerk ASSOCIATION, (Los Angeles County Plaintiff and Respondent, Super. Ct. No. BC438336) v. LOS ANGELES UNIFIED SCHOOL | ORDER CERTIFYING OPINION DISTRICTet al., FOR PUBLICATION Defendants and Appellants. THE COURT: The opinion in the above-entitled matter filed on December 5, 2012 was not certified for publication in the Official Reports. Upon application of appellants and for good cause appearing, it is ordered that the opinion shall be published in the Official Reports. . Pursuant to California Rules of Court, rule 8.1105(b), this opinionis certified for . publication. Bane Sus FERNS, J.* TURNER,P.J. KRIEGLER,J. * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuantto article VI, section 6 of the California Constitution. EXHIBIT B 38 PROOF OF SERVICE lam employed in the County of San Francisco, State of California. I am over the age of 18 years and not a party to this action. My business address is Latham & Watkins LLP, 505 Montgomery Street, Suite 2000, San Francisco, CA 94111-6538. I served the following documentdescribedas: RESPONDENT CALIFORNIA CHARTER SCHOOLS ASSOCIATION’S PETITION FOR REVIEW by serving.a true copy ofthe above-described documentin the following manner: — BY ELECTRONIC MAIL The above-described documentwas transmitted via electronic mail to the following party(ies) on February 13, 2013: David M.Huff, Esq. (dhuff@ohslegal.com) ORBACH, HUFF & SUAREZ LLP 1901 Avenueofthe Stars, Suite 575 Los Angeles, CA 90067 BY U.S. MAIL I] am familiar with the office practice of Latham & Watkins LLP for collecting and processing documents for mailing with the United States Postal Service. Under that practice, documents are deposited with the Latham & Watkins LLP personnelresponsible for depositing documents with the United States Postal Service; such documents are delivered to the United States Postal Service on that sameday in the ordinary course of business, with postage thereon fully prepaid. I deposited in Latham & Watkins LLP’s interoffice mail a sealed envelope or package containing the above-described document and addressedasset forth below in accordancewith the office practice of Latham & Watkins LLP for collecting and processing documentsfor mailing with the United States Postal Service on February 13, 2013: David M.Huff, Esq. MarkFall, Esq. Marley S. Fox, Esq. Nathan A. Reierson, Esq. Joanna Braynin, Esq. Office of General Counsel ORBACH, HUFF & SUAREZ LLP LOS ANGELES UNIFIED SCHOOL DISTRICT 1901 Avenue ofthe Stars, Suite 575 333 South Beaudry Avenue, 23rd Floor Los Angeles, CA 90067 Los Angeles, CA 90017 Attorneys for Appellants Attorneys for Appellants Clerk/Executive Officer of the Court Clerk of the Court Court of Appeal of the State of California Honorable Terry A. Green - Department 14 Second Appellate District, Division Five Superior Court of the State of California 300 South Spring Street, 2° Floor County of Los Angeles Los Angeles, CA 90013 111 North Hill Street Los Angeles, CA 90012 1 declare that | am employedin the office of a memberofthe Barof, or permitted to practice before, this Court at whose direction the service was made and declare under penalty of perjury under the lawsof the State of California that the foregoing is true and correct. Executed on February 13, 2013, at San Francisco, California. 50, ttt A. An +S Elizabeth A. Alvarez.