Judge James C. Chalfant, Case 22STCP00986 2022-07-26 Tentative Ruling

Santa Monica-Malibu Unified School District and the City of Santa Monica vs. Los Angeles County Committee on School District Organization, 22STCP00986

Tentative decision on motion for leave to intervene: granted for DeNicola and denied for Newman

Proposed Intervenors Josh Newman (“Newman”) and Jennifer DeNicola (“DeNicola”) move to intervene in this action. Petitioners oppose only as to Newman.

The court has read and considered the moving papers, opposition,[1] and reply, and renders the following tentative decision.

Petitioners Santa Monica-Malibu Unified School District (“District”) and the City of Santa Monica (“City”) filed the Petition against Respondent Los Angeles County Committee on School District Organization (“Committee”) on March 18, 2022, alleging causes of action for (1) traditional mandamus and injunctive relief and (2) declaratory relief. The verified Petition alleges in pertinent part as follows.

The City elects Board of Education (“Board”) members, or trustees, using an at-large system. Every constituent votes on every member, meaning each District voter casts seven votes. Fear of litigation under the California Voting Rights Act, which prohibits at-large elections that impair a protected class’s ability to elect candidates due to dilution of class members, has prompted some districts with such a system to transition to trustee area-based election formats.

The California Constitution gives municipal charter provisions the force of legislative enactments and provides that such provisions supersede state law on municipal affairs such as local elections. Thus, a modification of the manner of electing Board members would require amending the City charter, which only occurs if (1) the City Council passes a resolution or 15% of registered voters, or 10,000, sign a petition; and (2) a majority of electors approves the amendment.

Historically, Education Code section 5019 (“section 5019”) has provided a different process whereby the county committee on school district organization (“county committee”) can change how a school district elects board members. However, section 5019 exempted any district where the city or county charter provides for election of the board of education.

In 2021, the Legislature enacted SB 442, which amended section 5019 by repealing the provision that prohibited county committees from altering election processes where city or county charter provides for election of the board of education. It also amended Education Code section 5020 to allow the county committees to establish trustee areas without presenting the proposal to the constituency to vote. The county committee need only (1) unilaterally propose, or have 500 citizens sign a petition proposing, the change; (2) conduct one hearing; and (3) vote to approve the change. This procedure bypasses the City’s process for amending its charter and abolishes the at-large voting system approved by voters.

The legislative history of SB 442 suggests that the Legislature intended to help school districts that wanted to voluntarily transition to trustee area-based elections without spending money on judicial action or seeking amendment of the city charter. The Legislature did not intend to allow the county committees to impose trustee area-based elections when the school district’s elected representatives do not want them.

On January 4, 2022, District voters DeNicola and Tricia Crane (“Crane”) filed a petition (“DeNicola/Crane petition” or “petition”) to establish trustee-area elections for its governing board. The petition falsely claims that latino and black communities have been underrepresented on the Board, despite the fact that both groups have representation on the Board at a higher percentage than their number of constituents. The petition provides no evidence of racially polarized voting or vote dilution in the District.

On January 21, 2022, the Committee reported that the DeNicola/Crane petition had 500 signatures. Before the February 2, 2022 Committee meeting on the issue, the District and various organizations sent letters objecting to its jurisdiction to hear the petition. The Committee did not acknowledge any of these letters at the meeting, only stating that the next step in the process would be to schedule a public hearing to receive testimony and formally consider the proposal. The Committee scheduled this hearing for April 2022.

Petitioners seek a (1) a writ of traditional mandate nullifying any SB 442 provisions that violate sections of the California Constitution whereby city and county charters supersede all inconsistent laws governing municipal affairs; (2) injunctive relief enjoining the Committee implementing SB 442 with respect to the DeNicola/Crane Petition or similar proposals; (3) declaratory relief finding such sections of SB 442 unconstitutional; and (4) attorney’s fees and costs.

On March 21, 2022, Petitioners electronically served Respondent Committee with the Petition and summons.

Mandatory intervention is required if the application is timely and the person seeking intervention either has a statutory right to intervene or (a) claims an interest relating to the property or transaction that is the subject of the action and (b) is so situated that the disposition of the action may impair or impede the person’s ability to protect that interest, unless (c) that person’s interest is adequately represented by existing parties. CCP §387(d)(1).

Permissive intervention is available upon timely motion to any non-party who has an interest in the matter in litigation, or an interest in the success of either party, or against both parties. CCP section 387(d)(2). This section is construed liberally in favor of intervention. Simpson Redwood Co. v. State of California, (1987) 196 Cal. App. 3d 1192, 1200. The court has discretion to permit intervention when a party has a direct, not consequential, interest in the matter in litigation. Id. at 1200; Kobernick v. Shaw, (1977) 70 Cal. App. 3d 914, 918. In addition to a direct interest, intervention must not enlarge the issues raised by original parties and not tread on the rights of the original parties to conduct their own lawsuit. See Kuperstein v. Superior Court, (1988) 204 Cal.App.3d 598, 600. The reasons for intervention must outweigh any opposition. Truck Insurance Exchange v. Superior Court, (1997) 60 Cal.App.4th 342, 346.

If intervention is granted, the intervenor shall separately file a complaint-in-intervention, answer-in-intervention, or both and serve all parties. CCP §387(e).

Since his election to the state senate, Newman has been an active proponent of eliminating at-large elections. Newman Decl., ¶¶ 2-4. In that spirit, on February 16, 2021, he introduced SB 442 to facilitate the adoption of trustee-area elections. Newman Decl., ¶5. Following support of the Senate Elections and Constitutional Amendments Committee and the Senate Education Committee, both the Legislature voted unanimously to approve it and Governor Gavin Newsom (“Governor”) signed it. Newman Decl., ¶5; Shenkman Supp. Decl., ¶2, Ex. A.

SB 442 eliminated a provision of section 5019 that exempted “school district[s] governed by a board of education provided for in the charter” of a city or county from being transitioned from at-large to trustee-area elections by the county committee. Shenkman Decl., ¶¶ 2-3(a), Ex. A. SB 442 also eliminated a district’s need to obtain an “election waiver” from the State Board of Education (“BOE”) to transition without a vote by its electorate. Shenkman Decl., ¶¶ 2, 3(b), Ex. A. In 2020, prior to the adoption of SB 442, the BOE approved 158 election waivers and denied none, which was consistent the percentage of previous years. Shenkman Decl., ¶4, Ex. B.

DeNicola coauthored and garnered support for the DeNicola/Crane petition, gathering 1,000 signatures. DeNicola Decl., ¶¶ 2-3, Ex. A. Her counsel delivered the petition to the Committee on January 6, 2022. Shenkman Decl., ¶5; DeNicola Decl., ¶4. In February 2022, the Committee announced that it would schedule a public hearing on the petition. Shenkman Decl., ¶5, Ex. C.

On May 6, 2022, Newman wrote a letter to the District defending SB 442 and the DeNicola/Crane petition. Newman Decl., ¶4, Ex. A. He asserted that at-large election systems are known to dilute minority votes more than trustee-area elections. Newman Decl., ¶4, Ex. A. The Legislature did not want the transition to trustee-area elections to be subject to city charters or elections that suffer from the same majority-driven distortions necessitating such a change. Newman Decl., ¶4, Ex. A. The wealthy areas of the District have dominated its Board due to the at-large system, which adopted in 1946 precisely to deny minorities representation on it. Newman Decl., ¶4, Ex. A. The protections of section 5019 prior to SB 442 prevented anyone from fixing that. Newman Decl., ¶4, Ex. A. Moreover, the District affects territory outside of the City, but the 20% of the electorate residing outside the City cannot vote on charter amendments that would change the basis for District Board elections. Newman Decl., ¶4, Ex. A.

In June 2022, the Committee announced that due to the instant lawsuit, it would not take any further action on the DeNicola/Crane petition until further notice. Shenkman Decl., ¶5, Ex. D.

On Jun 9, 2022, Attorney General Rob Bonta (“Attorney General”) sent a letter to former Senator Richard Polanco (“Polanco”), author of SB 976, and agreed that SB 442 was both constitutional and necessary to advance the purposes of the Voting Rights Act. The state was therefore monitoring this action and considering whether to intervene or pursue other options. Polanco Decl., ¶4, Ex. A.

Per CCP section 387(c), the Proposed Intervenors have prepared a proposed Answer to the Petition if the motion is granted. Shenkman Decl., ¶7, Ex. E.

Counsel for the Proposed Intervenors sent emails on May 23, 2022 informing both parties of the intent to intervene. Woocher Decl., ¶¶ 2, 4, Ex. A, C. Respondent District’s counsel confirmed that it has no objection to the intervention. Shenkman Decl., ¶6. Petitioners’ counsel responded on May 23 and 24, 2022, in part asking what “direct and immediate” interest Newman claimed and why it would not be adequately represented by the existing parties. Woocher Decl., ¶¶ 3, 5, Ex. B, D. Proposed Intervenors’ counsel never answered this question. Woocher Decl., ¶4.

On June 1, 2022, Petitioners’ counsel stated that they have no objection to DeNicola’s intervention, but they do object to Newman’s intervention. Shenkman Decl., ¶6; Woocher Decl., ¶6, Ex. E. The email asked Proposed Intervenors’ counsel to provide a proposed stipulation for DeNicola’s intervention. The Proposed Intervenors filed this motion without ever responding. Woocher Decl., ¶¶ 6-7, Ex. E.

Proposed Intervenors DeNicola and Newman seek leave for permissive intervention. Permissive intervention lies within the court’s discretion and is more liberally granted than mandatory intervention. The intervenor must show that he or she (1) has a direct and immediate interest in this proceeding, (2) intervention will not enlarge the issues under consideration, and (3) the reasons for intervention outweigh any prejudice to the existing parties. CCP §387(d)(2); Kuperstein v. Superior Court, supra, 204 Cal.App.3d at 600.

Proposed Intervenors DeNicola and Newman have submitted proposed answer-in-intervention and their motion is timely. Shenkman Decl., Ex. E.

Neither Petitioners nor the District opposes DeNicola’s intervention. Opp. at 4; Woocher Decl., ¶6, Ex. E. Her direct and immediate interest in the litigation is apparent. Should this mandamus petition be granted, the DeNicola/Crane petition she authored pursuant to SB 442 and for which she garnered support would be void as a matter of law. DeNicola Decl., ¶¶ 2-3, Ex. A. It also is not clear that the Committee will adequately defend her interests as its quasi-adjudicatory interests do not necessarily align with her political interests in pursuing the petition. See Perry v. Brown, (2011) 52 Cal.4th 1116. Her unopposed motion will be granted.

The interest in permissive intervention must not merely be consequential and instead must be such that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Rominger v. County of Trinity, (1983) 147 Cal.App.3d 655, 660-61. The phrase “direct and immediate” is construed broadly, given the liberal interpretation of section 387(a) required in favor of intervention. See Id. at 662-63 (proposed intervenor need not have specific legal or equitable interest in the subject matter of the litigation).

Newman asserts that he has a direct and immediate interest in the outcome of the litigation because he is the author of SB 442 and an advocate of additional laws protecting voter rights. Newman Decl., ¶¶ 5-6. His work on future legislation would be compromised if the court were to rule that the portions of SB 442 at issue are unconstitutional. Newman Decl., ¶6. Proposed Intervenors cite Perry v. Brown, supra, 52 Cal.4th at 1125, 1143-44, n. 14, as authority for allowing the sponsor of a law to intervene in a lawsuit challenging the law’s constitutionality. Mot. at 8. Newman asserts that, just as an intervening voter defending his initiative may provide otherwise absent advocacy for the statute, the Committee will not necessarily have the motivation and vigor to advocate his interest. The Committee may even have an interest in seeing SB 442 declared unconstitutional to reduce its workload. Mot. at 9; Reply at 3.

Petitioners argue that this showing is insufficient. Newman seeks intervention solely because he was the primary sponsor of SB 442 and is “highly motivated to defend its constitutionality.” There is no precedent for an individual legislator to intervene to defend a statute simply because he championed the bill in the Legislature. Newman has no personal interest in this case; he is not a City resident, a District resident, and does not represent any part of either in the Legislature. He personally will not gain or lose anything as a direct consequence of a judgment in this case. See City and County of San Francisco v. State of California, (2005) 128 Cal.App.4^th 1030, 1037. Opp. at 7-8.

The court agrees. Perry v. Brown justified intervention by the proponents of a voter initiative because the initiative process is intended to enable the people to enact statutes when government officials have declined to do so, resulting in a valid concern that “the public officials who ordinarily defend a challenged state law” have no incentive to vigorously defend a voter initiative that government officials did not author and often publicly oppose. 52 Cal.4th at 1125.

That reasoning may justify DeNicola’s intervention because she is an author of the petition authorized by SB 442 that is at issue in this case, but it does not justify Newman’s intervention. Newman is the legislative author of SB 442, but a legislator is not in the same position as the proponent of a voter proposition or initiative.

Newman argues “who could be better suited and more motivated to defend legislation than its principal sponsor?” Reply at 2. The issue is not motivation but direct and immediate interest. Newman’s contention that he has a direct interest proves too much because it would justify the intervention of every legislator who has a passing interest in the lawfulness of a statute at issue in a case. That is not the law of permissive intervention. Individual legislators have no more of a legal interest in the statutes they champion than a superior court judge has in his or her decision on appeal.[2]

Newman claims that, if Petitioners prevail, his work on future legislation would be compromised, as would be various laws already in effect, including the Voting Rights Act. Polanco Decl., ¶4, Ex. A. Reply at 5. These are political issues that have no bearing on intervention. Newman Decl., ¶6.

Finally, Newman asserts that Petitioners overstep by asking for a declaration that SB 442 is unconstitutional with respect to the District’s Board and any other school district based in a charter city or county without filing an action against the state. Reply at 1. This procedural argument has nothing to do with intervention. The Committee and DeNicola are free to attack the Petition on procedural grounds and Petitioners are free to craft a narrower remedy if necessary.

Petitioners argue that Newman’s intervention would enlarge the issues because he would attempt to introduce his purpose in authoring SB 442, leading to litigation over the admissibility and weight of that evidence. Statements of a legislator’s personal belief or intent are inadmissible on issues of legislative intent. Cal. Teachers Assn. v. San Diego Comm. Coll. Dist. (1981) 28 Cal.3d 692, 699-701. Opp. at 11.

Newman replies that such evidence is admissible, also relying on Cal. Teachers Assn. v. San Diego Comm. Coll. Dist. (1981) 28 Cal.3d 692, 700, as holding that a legislator’s statement is admissible “when it is a reiteration of legislative discussion and events leading to adoption of proposed amendments rather than merely an expression of personal opinion”). Reply at 6.

The court has no doubt that the legislative history of SB 442 will be presented in this case. Whether Newman’s statements will be an admissible part of that legislative history cannot be judged at this time.

Petitioners assert that Newman’s would open the door to intervention by other legislators who hold different opinions. Opp. at 12. Newman attempts to refute this argument by reiterating that every senator voted in favor of SB 442. Shenkman Supp. Decl., ¶3, Ex. A. That argument merely supports Petitioners’ point. If Newman is permitted to intervene, then every legislator who voted on SB 442 would have the same legal interest.

Nevertheless, this opening the door has nothing to do with enlarging the issues. Rather, it is the “direct and immediate interest” issue discussed ante. SB 442’s constitutionality as applied to supersede municipal charters is at issue and Petitioners do not show that the scope of this issue will be expanded by Newman’s intervention. Newman’s intervention would not enlarge the issues underlying the Petition.

Although Newman’s moving papers do not address prejudice, they assert that the reasons for intervention are strong because Respondent Committee is a neutral governing body with no incentive to advocate for one interpretation of the law over another. He suggests that the Committee has an incentive for SB 442 to be declared unconstitutional to reduce its workload. Mot. at 9. Petitioners describe this argument as rank speculation and note that there is no indication that the Committee will refuse to defend SB 442. Indeed, the Committee is reviewing the petition as well as a related petition by the City of Malibu to withdraw from the District. Opp. at 12, n. 5.

Without agreeing with Newman’s contention, DeNicola’s permissive intervention as author of the petition eliminates any such problem.

In reply, Newman asserts that Petitioners have not articulated any prejudice. Reply at 7. While this is true, Newman cannot show a balance in favor of intervention outweighing where he has no direct and immediate interest.

DeNicola’s motion for permissive intervention is granted and Newman’s motion is denied. DeNicola is ordered to amend the proposed Answer-in-Intervention (Shenkman Decl., ¶7, Ex. E) to include only herself and serve and file it within ten days.

[1] Petitioners failed to lodge a courtesy copy of the opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Their counsel is admonished to provide courtesy copies for all future filings in this case.

[2] Newman cites Professional Engineers in California Government v. Kempton, (2007) 40 Cal. 4th 1016, 1045, as stating that voters who enact an initiative are acting as a “legislative entity”. Mot. at 8-9. That case did not concern a motion to intervene, nor would it support the intervention of all voters who vote on an initiative.