Judge James C. Chalfant, Case 22STCP00986 2023-01-05 Tentative Ruling

Petitioners Santa Monica-Malibu Unified School District (“District”) and the City of Santa Monica (“City”) seek a writ of mandate enjoining Respondent Los Angeles County Committee on School District Organization (“Committee”) from implementing SB 442 and any petitions in reliance thereon, including the petition by District voters Jennifer DeNicola (“DeNicola”) and Tricia Crane (“Crane”) (“DeNicola/Crane petition”).

The court has read and considered the moving papers, oppositions, and reply, and renders the following tentative decision.

On March 18, 2022, Petitioners filed the Petition against the Committee, alleging causes of action for (1) traditional mandamus and (2) declaratory relief. The verified Petition alleges in pertinent part as follows.

The California Constitution gives municipal charter provisions the force of legislative enactments and provides that they supersede state law on municipal affairs such as local elections. Pursuant to the City Charter, the City elects the District’s Board of Education members, or trustees, using an at-large system. Each constituent votes on every member, meaning that each District voter casts seven votes. Fear of litigation under the California Voting Rights Act (“CVRA”) -- which prohibits at-large elections that impair a protected class’s ability to elect candidates due to dilution of class members -- has prompted some school districts to transition to trustee area-based election formats.

Historically, Education Code (“Ed. Code”) section 5019 (“section 5019”) has provided a process whereby a county committee on school district organization (“county committee”) can change the manner in which a school district elects its board members but exempting any district where the city or city and county charter provides for election of the board of education. Thus, a modification of the manner in which the City elects Board of Education members would require an amendment to the City charter, which can occur only if (1) the City Council passes a resolution or 15% of registered voters or 10,000 voters sign a petition and (2) a majority of electors approves the amendment.

In 2021, the Legislature enacted SB 442, which amended section 5019 by repealing the prohibition of county committees from altering election processes where city or city and county charter provides for election of the board of education. SB 442 also amended Education Code section 5020 (“section 5020”) to allow the county committees to establish trustee areas without presenting the proposal to the constituency for a 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 Crane filed the DeNicola/Crane 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 of Education, despite the fact that both groups are represented at a higher percentage than their number of constituents. The DeNicola/Crane 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. The District and various organizations objected to the Committee’s jurisdiction to hear the DeNicola/Crane petition prior to the February 2, 2022 Committee meeting on the issue. At its February 2 meeting, the Committee did not acknowledge these objections, 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 the California Constitution provisions whereby city and 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 served Respondent Committee with the Petition and Summons.

On July 26, 2022, the court denied a motion to intervene by Senator Josh Newman but granted such a motion for DeNicola. As Intervenor, DeNicola filed an Answer on August 2, 2022.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus.¿ CCP §1085.¿ A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....”¿ CCP §1085.¿¿¿

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty.¿ Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84.¿ Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.”¿ Id. at 584 (internal citations omitted).¿ Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation.¿ AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.¿

¿Where a duty is not ministerial and the agency has discretion, mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion.¿ Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner.¿ American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261.¿ It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised.¿ Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71.¿ In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom.¿ Id. at 371.¿ An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.”¿ Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106.¿ A writ will lie where the agency’s discretion can be exercised only in one way.¿ Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty.¿

For its own government, a city or county may adopt a charter by majority vote of its electors voting on the question. Cal. Const. art. XI, §3(a). A charter may be amended, revised, or repealed in the same manner. Cal. Const. art. XI, §3(a). A county charter adopted pursuant to this section shall supersede any existing charter and all laws inconsistent therewith. Cal. Const. art. XI, §3(a). The provisions of a charter are the law of the State and have the force and effect of legislative enactments. Cal. Const. art. XI, §3(a).

It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their charters, and in respect to other matters they shall be subject to general laws. Cal. Const. art. XI, §5(a). City charters adopted pursuant to this authority shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith. Cal. Const. art. XI, §5(a).

It shall also be competent in all city charters to provide, in addition to those provisions allowable by the Constitution and state laws, for (1) the constitution, regulation, and government of the city police force; (2) subgovernment in all or part of a city; (3) conduct of city elections; and (4) plenary authority, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees. Cal. Const. art. XI, §5(b).

It shall be competent, in all city charters framed under this authority, to provide, in addition to those provisions allowable by the Constitution and state laws, for the manner in which, the times at which, and the terms for which the members of boards of education shall be elected or appointed, for their qualifications, compensation and removal, and for the number which shall constitute any one of such boards. Cal. Const. art. IX, §16(a).

Notwithstanding Cal. Const. art. XI, section 3, when the boundaries of a school district or community college district extend beyond the limits of a city whose charter provides for any or all of the foregoing with respect to the members of its board of education, no charter amendment effecting a change in the manner in which, the times at which, or the terms for which the members of the board of education shall be elected or appointed, for their qualifications, compensation, or removal, or for the number which shall constitute such board, shall be adopted unless it is submitted to and approved by a majority of all the qualified electors of the school district or community college district voting on the question. Cal. Const. art. IX, §16(b). Any such amendment, and any portion of a proposed charter or a revised charter which would establish or change any of the foregoing provisions respecting a board of education, shall be submitted to the electors of the school district or community college district as one or more separate questions. Cal. Const. art. IX, §16(b). The failure of any such separate question to be approved shall have the result of continuing in effect the applicable existing law with respect to that board of education. Cal. Const. art. IX, §16(b).

California law generally provides that the governing boards of school districts or community college districts can be elected: (1) an “at-large” system in which each member of the governing board is elected by the registered voters of the entire district; (2) a “by-trustee” system in which one or more members residing in each geographic trustee area is elected by the registered voters of that trustee area; and (3) a “from-trustee” system in which each member of the governing board is elected by the registered voters of the entire district, but reside in the trustee area which he or she represents. See Ed. Code §5030.

The following City or city and county charter proposals shall be submitted to the voters at an established statewide general election, provided there are at least 88 days before the election: (1) any proposal to adopt a charter, or an amendment or repeal of a charter, proposed by the governing body of a city or a city and county on its own motion; and (2) any recodification of the charter proposed by the governing body on its own motion, provided that the recodification does not, in any manner, substantially change the provisions of the charter. Elections Code (“Elec. Code”) §9255(b).

The following City or city and county charter proposals shall be submitted to the voters at an established statewide general, statewide primary, or regularly scheduled municipal election at least 88 days after the date of the order of election: (1) any amendment or repeal of a city charter proposed by a petition signed by 15% of the registered voters of the city; and (2) any amendment or repeal of a city and county charter proposed by a petition signed by 10% of the registered voters of the city and county. Elec. Code §9255(c).

Article III of the 1906 City Charter provided that the City’s electors would elect five at large members to the Board of Education. Pet. RJN Ex. 2.

In 1914, the Mayor ratified a Charter amendment staggering these elections. Pet. RJN Ex. 3. Under Article III, section 4, three members would be elected in December 1915 for four-year terms and the other two would be elected for two-year terms, with their successors elected for four-year terms. Pet. RJN Ex. 3.

The City Charter was amended again in 1946 expanding the Board of Education from five to seven members, who continued to be elected at large to staggered terms. Pet. RJN, Ex. 4. A non-substantive amendment relating to the Board of Education was approved by the voters in 1992, bringing the language of Article IX, section 900 to its current version. See Pet. RJN, Ex. 1.

Since November 5, 1946, Article IX, section 900 of the City Charter has stated that the Board of Education shall consist of seven members elected from the District at large, each of whom shall serve four years. Pet. RJN Exs. 1, 4.

The Legislature enacted the CVRA in 2002 as Elec. Code section 14025 et. seq. The CVRA’s purpose is to implement the guarantees of Cal. Const. art. I, section 7, and Cal. Const. art. II, section 2. Elec. Code §14031.

Federal law states that no standard, practice, or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. 52 U.S.C. §10301(a). A violation of this federal voting rights law is established if the totality of circumstances shows that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 52 U.S.C. §10301(b). The extent to which members of a protected class have been elected to office in the state or political subdivision is a circumstance which may be considered, provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 52 U.S.C. §10301(b).

The Supreme Court has recognized that at-large voting schemes may operate to minimize or cancel out the voting strength of minorities. See Thornburg v. Gingles, (1986), 478 U.S. 30, 47. In at-large elections, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters. Id. at 47. In contrast, dividing the political unit into single-member districts may facilitate a minority group’s ability to elect its preferred representatives. Rogers v. Lodge, (1982) 458 U.S. 613, 616.

The CVRA’s purpose is to expand the protections against voting dilution beyond those in the federal Voting Rights Act of 1965. Jauregui v. City of Palmdale (“Jauregui”) (2014), 226 Cal.App.4th 781, 808. The CVRA disfavors the use of at-large voting, which permits voters of an entire jurisdiction to elect candidates to the seats of its governing board. See generally Sanchez v. City of Modesto, (“Modesto”) (2006), 145 Cal.App.4th 660. Voting rights advocates have targeted the practice based on the claim that they often result in “vote dilution,” or the impairment of minority groups’ ability to elect their preferred candidates or influence the outcome of elections, which occurs when the electorate votes in a racially polarized manner.

Under the CVRA, an at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election as a result of the dilution or the abridgment of the rights of voters who are members of a protected class. Elec. Code §14027. Upon a finding of such a violation, the court shall implement appropriate remedies, including the imposition of district-based elections, that are tailored to remedy the violation. Elec. Code §14029. Any voter who is a member of a protected class and who resides in a political subdivision where such a violation is alleged may file an action pursuant to those sections in the superior court of the county in which the political subdivision is located. Elec. Code §14032.

In 2014, the Second District Court of Appeal held that the CVRA supersedes a charter city’s authority to determine the manner and method of electing a governing board under Cal. Const. Art. XI, section 5. Jauregui, supra, 226 Cal.App.4th at 802. Jauregui reasoned that the CVRA addresses several statewide concerns: the right to vote, equal protection, and the integrity of the electoral process. Id. at 799-802. When a minority community’s votes are diluted, it undermines those statewide concerns, which are themselves of constitutional magnitude. See Elec. Code §14031 (CVRA’s purpose is to implement the California Constitution’s guarantees in art. I, section 7 (equal protection) and art. II, section 2 (right to vote)). Accordingly, Palmdale, a charter city, could be compelled by the CVRA to implement district-based elections regardless of its city charter. Id. at 802.

In 2015, the legislature passed Assembly Bill (“AB”) 277, which codified the holding in Jauregui and expanded the definition of “political subdivision” to any geographic area of representation created for the provision of government services, including, but not limited to, a general law city, general law county, charter city, charter county, charter city and county, school district, community college district, or other district organized pursuant to state law. Elec. Code §14026(c).

The Legislature subsequently passed several bills facilitating the transitions of political subdivisions from at-large to district-based elections: (a) SB 493 (2015), AB 278 (2016), and AB 2220 (2016), which collectively amended Government Code section 34886 to allow cities of any size to change from at-large to by-district elections without voter approval if it furthers the purposes of the CVRA; (b) AB 684 (2011), which permitted community college districts to change from at-large to by-district elections with their board of governors’ approval; and (c) AB 2389 (2016), which permitted special districts to change from electing governing board members at-large to by-district without voter approval if the change furthers the purposes of the CVRA.

4. County Committee Authority for School Districts Not Governed by a City Charter Before SB 442

Prior to SB 442, the Legislature historically provided a process for changing the manner of electing school district board members where that manner is not governed by a city charter – i.e., most school districts in the state. These provisions stated in pertinent part as follows.

A county committee on school district organization is established for each county in the state. Ed. Code §4000. Counties with six or more school districts or community college districts (e.g., Los Angeles) shall have a county committee with 11 members. Ed. Code §4003.

County committees do not have the authority to consider and approve changes in the manner of electing school board members in school districts governed by a board of education provided for in a city charter. Ed. Code §5019(a).

In any non-charter-based school district or community college district, the county committee on school district organization may establish trustee areas, rearrange the boundaries of trustee areas, abolish trustee areas, and increase to seven from five, or decrease from seven to five, the number of members of the governing board, or adopt one of the alternative methods of electing governing board members specified in Ed. Code section 5030. Ed. Code §5019(a)(1). Such a proposal may be initiated by the county committee or made by a petition to the county committee signed by sufficient qualified registered voters residing in the district. Ed. Code §5019(c)(1).

Upon receiving a petition signed by the requisite number of qualified voters (or a resolution from the school district’s governing board), the county committee shall call and conduct a public hearing on the proposal, after which it could adopt a resolution approving a change from at-large to trustee area-based elections. Ed. Code §5020.

The resolution of the county committee approving a proposal to establish or abolish trustee areas shall constitute an order of election, and the proposal shall be presented to the electors of the district not later than the next succeeding election for members of the governing board. Ed. Code §5020(a)(1).[2]

On February 16, 2021, Senator Josh Newman introduced SB 442 to facilitate the adoption of trustee-area elections. DeNicola RJN Ex. E. SB 442 proposed to eliminate section 5019’s exception for the election of board of education school district members provided by a city or county charter. DeNicola RJN Ex. E.

On April 30, 2021, the Senate Rules Committee published the Senate Floor analysis of SB 442. DeNicola RJN Ex. G. The Senate Floor analysis acknowledged that charter cities have plenary authority under Cal. Const. art. XI, section 5(b), subject to limited restrictions, to provide for the manner, method, times, and terms for the election of municipal officers in their charters. DeNicola RJN Ex. G, p. 6. Cal. Const. art. IX, section 16 also provides that city charters may define the manner, times, and terms for the election of members of boards of education. DeNicola RJN Ex. G, p. 7. This section did not provide such plenary authority over school district governing board election methods. DeNicola RJN Ex. G, p. 7. Jauregui, supra, 226 Cal App. 4th at 781, held that charter cities with at-large elections are subject to the CVRA. DeNicola RJN Ex. G, p. 7. The Legislature then passed AB 277, which applied the CVRA to charter cities. DeNicola RJN Ex. G, p. 7.

SB 442 amended the Education Code provisions concerning a county committee’s authority to change a school board’s elections from at-large to trustee area-based elections. Among other things, SB 442 eliminated the prohibition against a county committee considering and establishing trustee areas for a school district governed by a board of education whose manner of election was provided for in the charter of a city or city and county. SB 442 amended section 5019 to read as follows:

~~“Except in a school district governed by a board of education provided for in the charter of a city or city and county, in~~ In any school district or community college district, the county committee on school district organization may establish trustee areas, rearrange the boundaries of trustee areas, abolish trustee areas, and increase to seven from five, or decrease from seven to five, the number of members of the governing board, or adopt one of the alternative methods of electing governing board members specified in Section 5030.” Ed. Code §5019(a) (strikeout text deleted; underlined text added); see Int. RJN Ex. E.

SB 442 also added language eliminating section 5020’s requirement that a resolution of the county committee approving a proposal to establish trustee areas must be presented to and approved by the voters of the district:

“(a) (1) The resolution of the county committee approving a proposal to establish or abolish trustee areas, to adopt one of the alternative methods of electing governing board members specified in Section 5030, or to increase or decrease the number of members of the governing board shall constitute an order of election, and the proposal shall be presented to the electors of the district not later than the next succeeding election for members of the governing board.

(2) Notwithstanding paragraph (1), a county committee may, by resolution, approve a proposal to establish trustee areas and to elect governing board members using district-based elections, as defined in subdivision (b) of Section 14026 of the Elections Code, without being required to submit the resolution to the electors of the district for approval. A resolution adopted pursuant to this paragraph shall include a declaration that the change in the method of electing members of the governing body is being made in furtherance of the purposes of the California Voting Rights Act of 2001 (Chapter 1.5 (commencing with Section 14025) of Division 14 of the Elections Code). The resolution shall take effect upon adoption and shall govern all elections for governing board members occurring at least 125 days after the adoption of the resolution.” Ed. Code §5020(a) (emphasis added).

The April 30, 2021 Senate Floor Analysis recognized that Article XI section 5 and Article IX section 16 of the California Constitution authorize city charters to provide for the conduct of city and school district elections, respectively, but recognized that the elimination of at-large elections in furtherance of the purposes of the CVRA supersedes that city charter authority. Opp. RJN Ex. G pp. 6-7 (citing Jauregui and noting that the California Constitution “does not indicate that there is ‘plenary authority’ to specify school district governing board election methods in city charters.”).

The Senate approved SB 442 34-0 on May 6, 2021, and the Assembly approved it 70-0 on July 12, 2021. DeNicola RJN Ex. F. Governor Gavin Newsom signed SB 442 into law on July 23, 2021. DeNicola RJN Ex. H.

On January 6, 2022, DeNicola and Crane filed the DeNicola/Crane petition to establish trustee-area elections for the election of District board members. Int. RJN Ex. 5. The petition alleges that the District includes neighborhoods with social, economic, and ethnic differences, and five of the seven Board of Education members come from the same wealthy neighborhood. Int. RJN Ex. 5. At-large elections increase campaign costs and have led to the underrepresentation of Latino and black communities on the Board of Education. RJN Ex. 5. SB 442 authorizes the Committee to override the City Charter and establish trustee-areas for District elections. RJN Ex. 5. The DeNicola/Crane petition includes a map with proposed boundaries for the seven trustee areas and proposed staggering of the elections. RJN Ex. 5.

On January 21, 2022, the District learned from the Committee that the Los Angeles County Registrar certified that the DeNicola/Crane petition had garnered more than 500 signatures from registered voters in the District. Larson Decl., ¶3. The Committee’s February 2, 2022, meeting agenda listed the DeNicola/Crane petition as an “information” item. Larson Decl., ¶4, Ex. A.

On January 31, 2022, the District objected to the Committee’s jurisdiction to proceed with consideration of the DeNicola/Crane petition. Larson Decl., ¶5, Ex. B. The District asserted that, while SB 442 became effective on January 1, 2022, it seemed apparent that most of the signatures on the DeNicola/Crane petition were gathered before that date. Larson Decl., ¶5, Ex. B.

At its meeting on February 2, 2022, the Committee took no action on the DeNicola/Crane petition except to say that it would schedule a public hearing to receive testimony and formally consider it. Larson Decl., ¶6.

The Committee has not taken action to schedule a public hearing. Larson Decl., ¶7. It has only mentioned during its meetings that litigation is pending on the DeNicola/Crane petition. Larson Decl., ¶7.

There have also been negotiations over a petition to separate the District in two halves which would render the DeNicola/Crane petition moot. Larson Decl., ¶8.

On October 28, 2022, the District and City of Malibu issued a press release that discussed progress on the separation petition. Opp. RJN Ex. A. The press release explained that the parties had settled on a detailed framework and process to pursue the separation of the District into two districts, one for each of the City of Malibu and the City. Opp. RJN Ex. A. This framework did not include a detailed timeline of the process. Opp. RJN Ex. A. The public would have opportunities to provide feedback as the parties made progress. Opp. RJN Ex. A. The parties anticipated additional public engagement on this process beginning in 2023. Opp. RJN Ex. A.

On February 13, 2019, Hon. Yvette M. Palazuelos issued a decision in Pico Neighborhood Association, et al. v. City of Santa Monica, (“Pico Neighborhood Association”) BC616804. DeNicola RJN Ex. I. The court found that the City’s at-large election system violated the CVRA and the California Constitution’s Equal Protection Clause. DeNicola RJN Ex. I, p. 71. The data from the City’s 21st century elections showed racially polarized voting where white voters consistently voted against Latino candidates who were overwhelmingly supported by Latino voters. Int. RJN Ex. I, pp. 25-26.

The National Demographics Corporation reported that, through May 2020, 250 school districts have adopted trustee-area elections in response to the CVRA. Shenkman Decl., ¶5. Most of these cases involved petitions submitted to the county committees per sections 5019 and 5020. Shenkman Decl., ¶5.

Before SB 442, school districts routinely sought election waivers as part of the process of adopting trustee-area elections. Shenkman Decl., ¶9. According to its 2020 annual report, the State Board of Education granted 158 election waivers and denied none that year. Shenkman Decl., ¶9, Ex. C.

In the first half of 2022, the Committee received nine petitions to adopt trustee-area elections and adjudicated two of them. Shenkman Decl., ¶6, Ex. B. In both cases, the Committee asked whether the adoption of trustee-area elections would further the purposes of the CVRA. Shenkman Decl., ¶7. The Committee decided in the affirmative and eliminated the need for a confirming election. Shenkman Decl., ¶7. The Committee has gained significant experience and expertise in adjudicating petitions for the adoption of trustee-area elections and receives a briefing on events related to the CVRA at each meeting. Shenkman Decl., ¶8, Ex. B.

The DeNicola/Crane petition included nearly 1,000 signatures of District voters. Shenkman Decl., ¶10. The Los Angeles County Registrar confirmed that the DeNicola/Crane petition had a sufficient number of valid signatures pursuant to Ed. Code section 5019(c)(1) to be considered by the Committee. Shenkman Decl., ¶11.

On January 6, 2022, the Committee received the DeNicola/Crane petition. Shenkman Decl., ¶10. At a meeting on February 2, 2022, the Committee confirmed that the petition had enough signatures under section 5019(c)(1) and entertained public comment. Shenkman Decl., ¶11, Ex. B.

The Committee has retained a demographer to advise on the propriety of the trustee-area maps that have been proposed and anticipates conducting a full hearing on the DeNicola/Crane petition once that demographer completes his or her work. Shenkman Decl., ¶12. To date, the Committee has not issued a final decision on whether to approve or deny the DeNicola/Crane petition. Shenkman Decl., ¶12.

The Committee has not indicated that it will not take action until this court has adjudicated the constitutionality of SB 442. Rather, the Committee has acknowledged that Petitioners must exhaust their administrative remedies on the DeNicola/Crane petition before this court considers Petitioners’ constitutionality claim. Shenkman Decl., ¶13.

On June 9, 2022, the Attorney General sent a letter to former Senator Richard Polanco, author of the CVRA, and agreed that SB 442 was both constitutional and necessary to advance the purposes of the CVRA. Polanco Decl., ¶4, Ex. A. The State was monitoring this action and considering whether to intervene or pursue other options. Polanco Decl., ¶4, Ex. A.

During a hearing on the motion to intervene in this action on July 26, 2022, Petitioners’ counsel asserted that this action is an as-applied challenge to SB 442 rather than a facial challenge. Shenkman Decl., ¶14, Ex. D. The court replied that, while a facial challenge could be made as part of a timely as-applied challenge, it probably was too late to raise a pure facial challenge to SB 442. Shenkman Decl., ¶14, Ex. D.

Petitioners seek (1) traditional mandamus and injunctive relief to prevent the Committee from implementing SB 442 for the District and any other city, or city and county, whose charter provides for the manner in which school board members are elected and (2) a declaration that SB 442 is facially unconstitutional with respect to its application to the District and any other school district for which the manner of election of school board members is provided for in the charter of a city or city and county.

Petitioners argue that, in stark contrast to the procedure prescribed in the California Constitution for amending a city charter to change the manner of electing a school district’s board of education members from at-large to by-district elections, SB 442 purports to allow a proposal to make that change to be initiated by the Committee itself or by a petition signed by a mere 500 District voters. §5019(c)(1). The Committee shall call and conduct a single hearing on the proposal (§5019(c)(2)) and may then to unilaterally abolish the at-large voting system implemented by the City’s Charter and replace it with trustee-area elections (also establishing the new trustee area boundaries) without ever submitting the change to the City’s and District’s voters. §5020(a)(2). Pet. Op. Br. at 9.

For the non-elected County Committee to exercise this extraordinary power, SB 442 merely requires it to include in its resolution “a declaration that the change in the method of electing members of the governing body is being made in furtherance of the purposes of the California Voting Rights Act of 2001.” §5020(a)(2) (emphasis added). No proof or finding is required that the school district’s at-large method of electing board members actually “impairs the ability of a protected class to elect candidates of its choice” in violation of the CVRA. See Elec. Code §14027. To the contrary, SB 442 was adopted precisely to eliminate the need for any such evidentiary showing and determination. “Under current law, school districts governed by a board of education provided for in the charter of a city or city and county, in contrast to most California school districts, have no means of adopting by-trustee area elections, except through costly judicial action or by seeking an amendment to the city charter.” See SB 442, §1(a)(3) (2021-2022 Reg. Sess.) (emphasis added). Pet. Op. Br. at 9.

Petitioners argue that SB 442 was never intended to apply to school districts which do not voluntarily wish to transition from at-large to trustee-area elections, is ill-suited for that purpose, and is unconstitutional with respect to school districts governed by boards of education who’s at-large manner of election is provided for by a city charter. Reply at 17.

A challenge of a statute, ordinance, or regulation is facial if it considers only the text of the measure itself, while an as-applied challenge concerns application of the measure to the particular circumstances of an individual. Tobe v. City of Santa Ana, (1995) 9 Cal.4th 1069, 1084.

A constitutional challenge to statute is “as-applied” when it turns on specific factual scenario pled, including the agency’s application of the statute to the petitioner. Monsanto Co. v. Office of Environmental Health Hazard Assessment, (“Monsanto”) (2018) 22 Cal.App.5th 534, 550. If the petitioner seeks only to obtain a ruling that the regulation as applied to him is unconstitutional, he must do so before the agency and its adverse decision is reviewable by administrative mandate only. Tejon Real Estate, LLC v. City of Los Angeles, (2014) 223 Cal.App.4th 129, 155 (citing Taylor v. Swanson, (“Taylor”) (1982) 137 Cal.App.3d 416, 418). In raising the constitutional issues, the applicant must exhaust his administrative remedies. Id. at 156.

A facial attack on the overall constitutionality of a statute or regulation may be made by an action for declaratory relief. The reason is that an applicant cannot attack the very existence of the agency from which he is seeking a favor. Taylor, supra, 137 Cal.App.3d at 418. It would be heroic indeed to compel a party to appear before an administrative body to challenge its very existence and expect it to dispassionately evaluate the constitutionality of its authorization. State of California v. Superior Court (Veta), (1974) 12 Cal.3d 247, 251.

A facial challenge may be included in an as-applied challenge. Travis v. County of Santa Cruz, (“Travis”) (2004) 33 Cal.4th 757, 769. This is because the action challenges the enforcement of the measure and not just its enactment. Id. Thus, the facial challenge to the text of a measure may be made only insofar as it affects enforcement of the measure against the petitioner. Id. at 767. The ripeness requirement for such claims is that the property owner must obtain “a final, definitive position regarding how [the city] will apply the regulations at issue to the particular land in question.” Williamson County Reginal Planning Commission v. Hamilton Bank, (1985) 473 U.S. 172, 191.

Petitioners argue that they are not making an as-applied challenge to SB 442. They do not dispute that SB 442 may validly be applied to those school districts that are not governed by a board of education provided for in a city charter. Yet, in contrast to the typical as-applied challenge, Petitioners challenge the plain text of SB 442 and not the implementation of the statutory scheme that forms the basis of their challenge. Petitioners challenge as facially unconstitutional the language in SB 442 that explicitly purports to apply its procedures to “any” school district without the previous statutory exception for school districts governed by a board of education provided for in a city or city and county charter. See §5019(a). Pet. Op. Br. at 11-12.

Unlike in Monsanto, Petitioners do not allege that there is anything about the way in which the Committee would apply SB 442 to the District that renders it invalid. Rather, SB 442 is unconstitutional on its face because it encompasses school districts governed by a board of education whose manner of election is provided for in a city or city and county charter. By imposing its procedures on any school district, including school districts governed by a board of education provided for in a city charter, SB 442 purports to remove the authority to determine the method of electing board members from the school district’s own electors and place that authority in the hands of a statutorily created countywide body. Under its plain language, SB 442 presents “a total and fatal conflict” with constitutional constraints on the power of the Legislature to authorize county committees to unilaterally impose trustee-area voting in the District or any other school district governed by a board of education provided for in a charter. See California State Personnel Board v. California State Employees Ass’n, (2005) 36 Cal.4th 758, 769. Pet. Op. Br. at 12.

Intervenor argues that this case does not present a facial challenge. Petitioners claim that their constitutional challenge “defies easy categorization as either a ‘facial’ or an ‘as-applied’ challenge,” but Petitioners’ counsel unequivocally informed the court that their constitutional challenge is as-applied:

“THE COURT: Okay. So, Ms. Chiappetti, I did have one question for you, which is that I don’t think this is a facial challenge even though that’s what the Proposed Intervenors contend, rather it’s an as-applied challenge, is it not?

[PETITIONERS’ COUNSEL]: Your Honor, we are challenging the S.B. 442 as applied to a county – as applied to a charter city in this case.

THE COURT: Right. That’s as-applied, not facial. It’s probably too late – I’m sure it’s too late to make a facial challenge to the statute in a dec relief matter, but it’s never too late to make an as-applied challenge making a facial challenge argument. Okay. So it’s an as-applied challenge.” Shenkman Decl., Ex. D (emphasis added); see also Mangini v. Aerojet-General Corp., (1991) 230 Cal.App.3d 1125, 1152 (“briefs and arguments … are reliable indications of a party’s position on the facts as well as the law, and a [] court may make use of statements therein as admissions against the party.”) (citation omitted). Int. Opp. at 8-9.

Intervenor is looking at the wrong statute. Petitioners challenge SB 442’s amendment of section 5019 to delete the language “[e]xcept in a school district governed by a board of education provided for in the charter of a city or city and county” and substitute the language “In any school district or community college district”. Petitioners also challenge SB 442’s language eliminating section 5120’s requirement that a resolution of the county committee approving a proposal to establish trustee areas needed to be presented to and approved by the voters of the district and instead adding the following: “(2)…a county committee may, by resolution, approve a proposal to establish trustee areas and to elect governing board members using district-based elections, as defined in subdivision (b) of Section 14026 of the Elections Code, without being required to submit the resolution to the electors of the district for approval.”

Consequently, Petitioners are challenging SB 442’s amendments to, not the previous version of, sections 5019 and 5020. Petitioners’ challenge SB 442’s amendments to those two provisions in all of the amendments’ applications -- i.e., to the District and any other city, or city and county, whose charter provides for the manner in which school board members are elected. As such, Petitioners contend that SB 442’s amendments to sections 5019 and 5020 present a total and fatal conflict with applicable constitutional prohibitions in all of its applications. See East Bay, supra, 24 Cal.4th at 709. This is a facial challenge.[3]

The CVRA prohibits charter cities, like any other municipality in California, from imposing an at-large system of elections if doing so dilutes minority voters’ electoral strength and impairs their ability to elect candidates of choice. Elec. Code §§ 14026(c), 14027; Jauregui, supra, 226 Cal. App. 4th at 800; Yumori-Kaku v. City of Santa Clara, (“Yumori-Kaku”) (2020) 59 Cal. App. 5th 385, 392.

The Committee notes that the California Supreme Court has granted review of Pico Neighborhood Association, in which the court will interpret the CVRA and is expected to explain what evidence is necessary to show that an at-large election system impairs minority voting power and results in vote dilution in violation of the CVRA. See Pico Neighborhood Association, (Supreme Court Case No. S263972) (2020) 474 P.3d 635 (granting review). Opp. at 7-8.

The Committee argues that while the issue in Pico Neighborhood Association is discrete -- “What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?” -- the potential sweep of the court’s analysis is broad. The court may clarify such matters as: (1) the nature of the harm the CVRA is intended to remedy; (2) the relationship between vote dilution and racially polarized voting in proving a CVRA violation; and (3) what must be shown to demonstrate that an at-large election system has resulted in vote dilution such that it has precluded a protected class from exercising the power it may otherwise have to meaningfully influence the outcome of elections. The answers to any of these questions will clarify what the Committee must find before issuing a resolution declaring that a conversion to by-trustee area voting is “in furtherance of the purposes” of the CVRA as required by section 5020(a)(2). Opp. at 7-8.

The Committee argues that Pico Neighborhood Association could aid this court in interpreting SB 442. Petitioners argue that SB 442 is not “narrowly tailored” to avoid unwarranted intrusion into municipal affairs because the Committee is not expressly required to find that vote dilution has occurred before ordering a school district to convert to trustee-area elections. Pet. Op. Br. at 18. A statute must be interpreted in a manner that, whenever possible, preserves its constitutionality, so long as doing so effectuates policy judgments clearly articulated by the legislature. See Kopp v. Fair Pol. Practices Comm’n, (1995) 11 Cal. 4th 607, 660-61. This court could construe SB 442 to require the Committee to determine the existence of vote dilution before declaring that conversion to trustee-area elections is “in furtherance of the purposes” of the CVRA, thereby bringing SB 442 into alignment with the holding of Jauregui. Exactly how to do that, however, will depend on what the Supreme Court decides in Pico Neighborhood Association. Opp. at 8.

Because Pico Neighborhood Association arises from the application of the CVRA to a charter city, the California Supreme Court’s decision also may reflect on the propriety of Jauregui, supra, 226 Cal. App. 4th at 800, in which the Second District Court of Appeal held that the CVRA can compel charter cities to convert to by-district elections notwithstanding contrary provisions in their charters if there is racially polarized voting and the at-large system results in vote dilution. According to the Committee, the continuing validity of Jauregui will be central to this court’s evaluation whether SB 442 reflects a legislative enactment on a matter of statewide concern or whether it unduly infringes on a charter city’s right to determine the manner of school board elections. Petitioners have stated their disagreement with Jauregui, claiming that it “effectively nullif[ies] article XI, section 5, subdivision (b)” of the California Constitution and that its analytical framework is “inapposite” for evaluating the constitutionality of SB 442, preserving this issue for appeal. Pet. Op. Br. at 16-17, n. 4. Should the California Supreme Court revisit Jauregui in Pico Neighborhood Association, that could bear on this court’s analysis. Opp. at 8.

Petitioners reply that a decision by this court on their constitutional challenge to SB 442 also is likely to provide guidance on what the Committee must find before issuing a resolution that a conversion to trustee-area elections is “in furtherance of the purposes of the CVRA.” Reply at 11, n. 7.

The court does not believe that the pendency of the California Supreme Court’s decision in Pico Neighborhood Association justifies delay of resolution of Petitioners’ facial challenge to SB 442. In the court’s view, it is generally bad practice for a trial court to refrain from action until an appellate court rules, unless the appellate ruling will control, or at least directly bear, on the outcome of the trial court’s case.

As the Committee recognizes, Pico Neighborhood Association concerns the evidence that must be presented to make a showing of voter dilution under the CVRA. The California Supreme Court’s decision will not control, and will have no direct bearing on, Petitioners’ challenge to SB 442’s authorization for a county committee to establish trustee area-based elections in for school districts governed by a board of education provided for in a city or city and county charter and permitting a county committee to do so if it would be in furtherance of the CVRA. Even on the second point, it is speculative to suggest that the California Supreme Court will explain what showing is necessary for the Committee to act in furtherance of the CVRA when that issue is not before the court in Pico Neighborhood Association.

A writ of mandate will only issue when the petitioner has no plain, speedy, or adequate remedy at law. CCP §1086. As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies. See, e.g., Alta Loma School Dist. v. San Bernardino County Committee on School District Reorganization, (1981) 124 Cal.App.3d 542, 554. Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (“Coachella”) (2005) 35 Cal.4th 1072, 1080.

The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293. It contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary. Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th377, 391. “A party cannot circumvent the exhaustion doctrine by bringing actions other than administrative mandamus such as actions for declaratory relief.” Walter H. Leimert Co. v. California Coastal Commission, (1983) 149 Cal.App.3d 222, 232.

There are exceptions to the exhaustion doctrine. Exhaustion is excused when an administrative remedy is unavailable, is inadequate, or it would be futile to pursue it. McAllister v. County of Monterrey, (2007) 147 Cal.App.4th. 253, 275. Other exceptions include "situations where the agency indulges in unreasonable delay...when the subject matter lies outside the administrative agency's jurisdiction, [or] when pursuit of an administrative remedy would result in irreparable harm...." Ibid; Green v. City of Oceanside, (1987) 194 Cal.App.3d 212, 222.

Petitioners acknowledge that a petitioner must generally exhaust available administrative remedies before seeking judicial review. They contend, however, that exhaustion is not required when a challenger mounts a facial challenge to the constitutionality of the statute governing the agency. See, e.g., Sail’er Inn, Inc. v. Kirby, (“Sail’er”) (1971) 5 Cal.3d 1, 6-7 (exhaustion not required for facial challenge to constitutionality of provision prohibiting women from serving as bartenders); Ebel v. City of Garden Grove, (“Ebel”) (1981) 120 Cal.App.3d 399, 409-10 (exhaustion not required for facial constitutional challenge to ordinance requiring a conditional use permit to operate adult bookstores; “it has been stated by the California Supreme Court that a person has standing to challenge an ordinance or a statute invalid on its face without first exhausting the licensing or permit procedures”). Pet. Op. Br. at 19-20.

Petitioners argue that there is a good reason for the inapplicability of exhaustion to a facial constitutional challenge: the Constitution prohibits agencies from declaring statutes unconstitutional or from refusing to enforce a statute on that basis, unless a court has already so ruled. Cal. Const. art. III, §3.5;[4] Asimow et al., Cal. Prac. Guide: Administrative Law, (The Rutter Group 2021) ¶15:381. Petitioners challenge the constitutionality of SB 442 on its face, as it purports to apply to school districts in a charter city. The fact that the Committee is constitutionally barred from declaring SB 442 unenforceable or unconstitutional demonstrates the senselessness of requiring Petitioners to exhaust their administrative remedies before the Committee. Pet. Op. Br. at 20.

Petitioners further argue that several overlapping exceptions excuse them from the exhaustion requirement. An administrative remedy is deemed “inadequate” and excuses exhaustion, when the existing administrative procedures cannot furnish the specific relief sought by the petitioner or an acceptable substitute for that relief. Tiernan v. Trustees of Calif. State Univ. & Colleges, (“Tiernan”) (1982) 33 Cal.3d 211, 217 (terminated university employee not required to exhaust university’s grievance process before filing suit challenging the university’s failure to adopt and follow regulations where grievance committee was powerless to grant her requested relief). For example, in Glendale City Employees’ Ass’n, Inc. v. City of Glendale, (“Glendale”) (1975) 15 Cal.3d 328, 342-43, union members were not required to individually exhaust the city’s grievance procedure before their union could file suit to resolve the question of whether a memorandum of agreement was binding on the city. The court noted that the city’s grievance procedure was designed to handle individual cases, but not to resolve the complex and comprehensive legal question raised by the union. Thus, the grievance procedure was not an adequate remedy and exhaustion was not required. Pet. Op. Br. at 20-21.

According to Petitioners, Tiernan illustrate the folly of requiring Petitioners to pursue administrative remedies before the Committee. Petitioners seek a writ of mandate and injunction commanding the Committee to refrain from implementing SB 442 with respect to any petition to establish trustee area voting for the District and a declaration that SB 442 is unconstitutional with respect to any petition to establish trustee-area voting for the District or for any other school district governed by a board of education whose manner of election is provided for in the charter of a city or a city and county. While the Committee may hear individual petitions to establish trustee-area voting, the Committee cannot furnish these requested remedies. Indeed, the Committee is constitutionally required to enforce the statute until a court rules otherwise. The administrative hearing procedures created by SB 442 cannot provide Petitioners their requested remedies or any adequate substitute. Pet. Op. Br. at 21.

Exhaustion of administrative remedies also is excused when a plaintiff contends the agency lacks subject matter jurisdiction or statutory authority to resolve the plaintiff’s claims. Coachella, supra, 35 Cal.4th at 1081-82. Where an agency arguably lacks subject matter jurisdiction to consider a petitioner’s claim, a court will consider the burden that exhaustion would pose, and whether there is “significant public interest in obtaining a definitive resolution of this fundamental legal question.” Id. at 1082. Petitioners argue that this is clearly a case in which the burden of exhaustion is significant because the potentially lengthy and costly administrative proceedings will not address the core constitutional question raised by Petitioners’ claim. Moreover, because the Committee is foreclosed from considering the constitutional question of its own jurisdiction to unilaterally impose trustee-area voting in all districts, the public interest in obtaining a “definitive resolution” by a court regarding the constitutionality of SB 442 is manifest. Pet. Op. Br. at 22.

Finally, exhaustion of administrative remedies is excused when the existing administrative procedure does not provide clearly defined machinery for the submission, evaluation, and resolution of the type of complaint actually made by the party. City of Oakland v. Oakland Police & Fire Retirement System, (“City of Oakland”) (2014) 224 Cal.App.4th 210, 234-38. Petitioners should be excused from the exhaustion requirement because existing law does not provide any mechanism by which Petitioners can submit their constitutional complaint to the Committee for consideration. In the absence of any authority or procedure for determining whether SB 442 is constitutional, the Committee would be required to enforce SB 442 and proceed with the DeNicola/Crane petition. See Lockyer v. City and County of San Francisco, (2004) 33 Cal.4th 1055, 1069 (San Francisco agency required to enforce California’s statutory prohibition on same-sex marriage “unless and until [those statutes] are judicially determined to be unconstitutional.”). Pet. Op. Br. at 21-22.

Petitioners conclude that the following is true: (1) Petitioners present a single facial challenge to the constitutionality of SB 442 that does not depend on any facts related to the DeNicola/Crane petition; (2) Petitioners challenge the constitutionality of the Committee’s authority to consider the DeNicola/Crane petition and grant the relief requested of an order establishing trustee-area elections for the District without a vote of the electorate amending the City Charter; (3) the Committee is constitutionally precluded from addressing Petitioners’ challenge or granting any relief to it; and (4) forcing Petitioners to oppose the DeNicola/Crane petition in an administrative proceeding would require the expenditure of substantial resources that would otherwise be devoted to educating District students. Under these circumstances, the law does not require Petitioners to exhaust an inadequate administrative remedy. Reply at 11-12.

Intervenor argues that Petitioners have jumped the gun by seeking judicial review. If the Committee denies the DeNicola/Crane petition, then Petitioners would have no reason to challenge the constitutionality of SB 442 and could not assert any injury from the continued existence of amended sections 5019 and 5020. On the other hand, if the Committee grants the DeNicola/Crane petition and finds that trustee-area elections for the District’s Board of Education further the purposes of the CVRA, this court will have the benefit of the Committee’s administrative record, likely to include findings and analysis relevant to whether a conversion to trustee-area elections for the District’s Board of Education will combat vote dilution, protect the right to vote and equal protection, and ensure the integrity of the electoral process. The Committee has considered dozens of petitions seeking the adoption of trustee-area elections for school districts throughout the County and has the experience and expertise that makes it best suited to consider those questions. Shenkman Decl., ¶¶ 5-8, Ex. B. Int. Opp. at 6.

Intervenor argues that, contrary to Petitioners’ suggestion, the courts have consistently required administrative exhaustion for both facial constitutional challenges and as-applied challenges in court. See, e.g., PegaStaff v. California Public Utilities Commission, (“PegaStaff”) (2015) 236 Cal.App.4th 374, 379, 388 (requiring exhaustion for plaintiff’s facial and as-applied constitutional claims against Article 5 of the Public Utilities Code and the CPUC’s Order 156; “[e]Even if PegaStaff could not have obtained all of the relief it seeks at the administrative level, it “would still be required to exhaust administrative remedies prior to making the constitutional challenge.”); Subriar v. City of Bakersfield, (“Subriar”) (1976) 59 Cal.App.3d 175, 192-94 (“The mere fact that a statute is challenged on [facial] constitutional grounds does not excuse a failure to exhaust administrative remedies.”); Smith v. City of Duarte, (1964) 228 Cal.App.2d 267, 268-69 (facial constitutional challenge barred for failure to exhaust administrative remedy]; People v. Coit Ranch, Inc., (1962) 204 Cal.App.2d 52, 59-60 (facial challenge to Agricultural Code section 130016(a)(2) barred for failure to exhaust administrative remedy). Int. Opp. at 7.

Intervenor argues that Tiernan, Glendale, Coachella, and City of Oakland merely describe the exception to administrative exhaustion where the administrative remedy is inadequate, such as where the agency lacks authority to resolve the dispute. None of those cases involved the situation where a petitioner seeks to bypass an administrative adjudication because the administrative agency is not empowered to declare a statute unconstitutional, and the inadequate remedy exception has never been applied by any California court in that circumstance. Consistent with the principle of constitutional avoidance, California courts have consistently required administrative exhaustion before a constitutional challenge may be made in court even though the administrative agency cannot adjudicate the unconstitutionality. Int. Opp. at 11.

Intervenor argues that the two cases cited by Petitioners, Sail’er and Ebel, do not aid them. Sail’er did not establish a facial challenge exception to the rule requiring administrative exhaustion. Rather, the extraordinary circumstances of that case did not require administrative exhaustion because the plaintiffs would have been placed in the untenable situation of having to choose whether to obey possibly conflicting federal and state laws, facing a penalty under the law they chose to disobey while they were pursuing administrative relief. See 59 Cal.App.3d at 192 (explaining that Sail’er allowed the plaintiff to bypass administrative remedies because of extraordinary circumstances); Bd. of Police Commissioners v. Superior Court, (1985) 168 Cal.App.3d 420, 432 (Sail’er reflects an “exception[] for unusual factual circumstances” that does not undermine the “better rule” that “a constitutional challenge does not excuse the exhaustion of administrative remedies.”). Int. Opp. at 7-8.

Similarly, Ebel, supra, 120 Cal.App.3d at 409-10, reflects a narrow exception to administrative exhaustion for facial challenges to zoning ordinances, excusing a litigant from exhausting licensing or permit procedures before attacking the constitutionality of the zoning ordinance. For this very limited exception, Ebel cites City of Santa Barbara v. Adamson, (1980) 27 Cal.3d 123, 135, 137, which discusses the peculiar reasons why a litigant should not be required to apply for a permit before challenging the constitutionality of a zoning ordinance. Those reasons peculiar to zoning ordinances have no application here. Int. Opp. at 8.

Petitioners contend that Intervenor’s attempt to discredit Ebel and Sail’er fails. Contrary to Intervenor’s assertion, Ebel’s holding was not limited to “a very narrow exception for facial challenges to zoning ordinances.” The Ebel court did not mention anything unique about zoning ordinances and instead explained that “it has been stated by the California Supreme Court that a person has standing to challenge an ordinance or a statute invalid on its face without first exhausting the licensing or permit procedures….” 120 Cal.App.3d at 409. Intervenor notes that Ebel cited another zoning ordinance case (City of Santa Barbara v. Adamson, supra, 27 Cal.3d at 135), but it also cited a second, non-zoning ordinance case (Burton v. Municipal Court, (1968) 68 Cal.2d 684, 687-89). Ibid. Reply at 13-14.

Petitioners acknowledge that the facts of Sail’er, supra, 5 Cal.3d at 1, in which two (but not all) of the petitioners were “placed in the untenable situation of having to choose whether to obey possibly conflicting federal and state laws”, rendered exhaustion especially inappropriate. Petitioners argue, however, that those facts in no way weaken or otherwise contradict the established rule that facial challenges to the constitutionality of agency authority or agency procedures do not require exhaustion. Reply at 13-14.

In reply, Petitioners retreat a bit from their statement that facial constitutional challenges are exempt from exhaustion requirements. They contend that exhaustion is not required when a lawsuit raises a purely facial constitutional challenge to an agency’s authority to act, the suit does not include any related statutory claims and does not depend on any factual determinations, and it cannot be ruled upon by the agency itself. Reply at 12.

Intervenor acknowledges that the Committee has no authority to rule on the constitutionality of SB 442 but contends that this fact does not excuse Petitioners from exhausting their administrative remedy. It has always been the rule that “even where the statute sought to be applied and enforced by the administrative agency is challenged upon constitutional grounds, completion of the administrative remedy [is] a prerequisite to equitable relief." United States v. Superior Court, (1941) 19 Cal.2d 189, 195 (citing a line of high court cases); Smith v. City of Duarte, (1964) 228 Cal.App.2d 267, 268-69; People v. Coit Ranch, Inc., (1962) 204 Cal.App.2d 52, 59-60 (a litigant “must exhaust the administrative remedy before presenting the constitutional question to a court.”); Dunham v. City of Westminster, (1962) 202 Cal.App.2d 245, 249-50 (same); Tushner v. Griesinger, (1959) 171 Cal.App.2d 599, 603-08 (challenge to Real Estate Commissioner’s conduct of hearings based on the alleged unconstitutionality of the enabling statute barred for failure to exhaust the administrative remedy). Int. Opp. at 9-10.[5]

Intervenor argues that several California courts have concluded that administrative remedies must be exhausted before the courts have jurisdiction over a constitutional question. In Leek v. Washington Unified School Dist., (“Leek”) (1981) 124 Cal.App.3d 43, 53-54, the court rejected an argument that the inability of the Personnel Employment Relations Board (“PERB”) to declare unconstitutional or decline to enforce the challenged statute excused the plaintiffs from exhausting their administrative remedy, reasoning that a ruling by PERB on non-constitutional issues could obviate the need for a court to reach the constitutional challenge. In Link v. Antioch Unified SchoolDistrict, (“Link”) (1983) 142 Cal.App.3d 765, 768-69, the court required exhaustion where all of plaintiffs’ claims were styled as constitutional challenges, reasoning that PERB “might validly devise a method to allow plaintiffs to avoid payment for those political and ideological activities they find constitutionally objectionable.” Finally, in County of Contra Costa v. State of California, (“Contra Costa”) (1986) 177 Cal.App.3d 62, 75-78, n. 8, the court held that plaintiff was required to exhaust his administrative remedies in the State Board of Control before raising a constitutional challenge to a statute because of the utility of administrative factfinding, even though the agency could not declare the statute unconstitutional. Under “the venerable jurisprudential principle to avoid constitutional questions where other grounds are available,” it is perhaps even more important to require administrative exhaustion where litigants seek to have the courts adjudicate constitutional claims. SEIU Local 1000 v. Dept. of Personnel Admin., (2006) 142 Cal.App.4th 866, 873. Int. Opp. at 10-11.

Petitioners correctly reply that Intervenor’s cases fit into one of the following categories: (1) cases decided before 1978, when the California Constitution was amended to prohibit administrative agencies from considering the constitutionality of operative statutes; (2) cases in which the plaintiff brought constitutional and statutory claims together; and (3) cases in which the court believed it first needed agency fact-finding before ruling on the constitutional challenge. None of those cases governs the present circumstances. Reply at 14.

Hence, Intervenor cites a string of cases decided between 1940 and 1970, all of which were decided before the California Constitution was amended in 1978 to prohibit administrative agencies from declaring a statute unconstitutional or refusing to enforce a statute on the basis of it being unconstitutional.[6] See Cal. Const. art. III, § 3.5. Whereas parties could previously raise constitutional claims before an administrative agency as part of the exhaustion requirement, agencies can no longer do so after 1978, making exhaustion of these types of constitutional claims futile. See Tiernan, supra, 33 Cal.3d at 217 (1982 decision articulating rule that exhaustion is not required when the administrative body is powerless to provide the relief sought). Reply at 14-15.

Intervenor cites three cases that exhaustion is required for single facial constitutional claims, but in each case the plaintiff brought constitutional and statutory claims together or the court believed it needed agency fact-finding before ruling on the constitutional challenge. Reply at 14.

In Leek, supra, 124 Cal.App.3d at 43, 50-51, the plaintiff public school employees alleged a number of statutory employment violations and a single constitutional claim. In addressing exhaustion, the court considered whether PERB could “properly determine that the acts complained of were unfair practices under” the applicable statutes, whether the agency “could . . . furnish relief equivalent to that which would be provided by a trial court,” and whether “the Legislature intend[ed] that [the agency] would have exclusive initial jurisdiction over remedies for the acts complained of….” Id. at 47. For the statutory claims, the court held that the agency could and should do so. “The Legislature has invested PERB with powers and duties sufficient to investigate appellants’ nonconstitutional allegations, to make determinations with respect thereto, and to enforce any of its orders, decisions or rulings by bringing an action in a court of competent jurisdiction. This demonstrates a clear intention by the Legislature that PERB should exercise initial jurisdiction over remedies to grievances such as those alleged by appellants.” Id. at 50-53 (internal citations omitted). For the constitutional claim, the court concluded that “it is a reasonable probability that a ruling by PERB on the nonconstitutional issues would obviate the consideration of constitutional challenges,” so the mere presence of the constitutional claim did not render exhaustion unnecessary. Id. at 53.

The plaintiff public school employees in Link, supra, 142 Cal.App.3d at 765, brought a mix of facial and as-applied constitutional challenges to a service fee that was the equivalent of union dues. The claim hinged on factual allegations that the fees collected in that case were used for “ideological and political purposes,” and the constitutional claims were “nominal” and in substance resembled the statutory claims which PERB had the ability to adjudicate. Id. at 767, 769. “By investing the PERB with broad investigative and remedial powers, the Legislature intended that the PERB exercise initial jurisdiction over those nominal constitutional violations.”. As such, exhaustion was required. Id.

Finally, in Contra Costa, supra, 177 Cal.App.3d at 62, 38 counties and a county supervisors’ association made a constitutional claim that 20 bills passed by the Legislature established reimbursable mandates requiring the state to provide funds to local governments for the cost of the program. The court held that the claim did not fit squarely in the exception to administrative exhaustion for a challenge to the constitutionality of the administrative agency. Id. at 75. “But here the Counties are not challenging the constitutionality of the [applicable administrative agencies] or even the statutory scheme for hearing and determining claims.” Ibid. The court concluded that the constitutional claims were such that a “proceeding before the board will promote judicial efficiency by unearthing the relevant evidence and providing a record which the court may review.” Id. at 75, n. 8.

Petitioners conclude that Leek, Link, and Contra Costa may be distinguished as cases in which it was proper to require exhaustion to obviate or develop facts for a constitutional claim. Petitioners contend that their challenge is precisely the type of claim that the Contra Costa stated would not require exhaustion: a purely facial challenge to “the statutory scheme for hearing and determining claims” before the Committee, as well as to the Committee’s authority to provide the requested relief overriding a city charter without a vote of the city’s electorate. There is no evidence that must be “unearthed” for the court to rule on Petitioners’ constitutional challenge. Reply at 16.

Petitioners rely (Reply at 12) on Chrysler Corp. v. New Motor Vehicle Bd., (“Chrysler Corp”) (1979) 89 Cal.App.3d 1034, as analogous. There, a state statute provided that any existing auto dealership could seek to prevent a new dealership from opening in close geographic proximity to it by filing a protest with the New Motor Vehicle Board and by demonstrating at a hearing that there is “good cause not to enter into a franchise establishing or relocating an additional motor vehicle dealership.” Id. at 1037. When Chrysler Corporation sought to open a new dealership, Vandenberg Motors filed a protest and the board notified Chrysler not to establish the new dealership until it held a good cause hearing. Id. Chrysler filed suit challenging the constitutionality of the good cause hearing procedure and seeking an injunction prohibiting the board from interfering with its establishment of the new dealership, which the trial court granted. Id.

On appeal, the board argued that that the trial court had no jurisdiction to grant Chrysler relief because it had failed to exhaust its administrative remedies. The court rejected this argument, explaining: “[T]he administrative procedures which the Board claims Chrysler should have exhausted were not Chrysler’s remedy; they are the very source of the asserted injury for which Chrysler sought a remedy. Thus Chrysler comes within a well-recognized exception to the exhaustion rule, where the administrative remedy is inadequate, or the challenge is to the constitutionality of the administrative agency itself or the agency’s procedure.” Id. at 1038-39 (citations omitted); see also State of California v. Superior Court (Veta), (1974) 12 Cal.3d 237, 251 (“since an administrative agency is not the appropriate forum in which to challenge the constitutionality of the basic statute under which it operates, there seems little reason to require a litigant to raise the constitutional issue in proceedings before the agency as a condition of raising that issue in the courts”); Lund v. California State Employees Assn., (1990) 222 Cal.App.3d 174, 183 (exhaustion requirement “does not apply to an action challenging the constitutionality of the administrative agency’s statute”). Reply at 12-13.

Petitioners contend that they are challenging the constitutionality of the Committee’s authority to consider the DeNicola/Crane petition and to grant the relief it requests against a charter city school district. As Chrysler Corp stated, the administrative proceeding before the Committee that Intervenor claims Petitioners should exhaust is not Petitioners’ remedy; it is the very source of the asserted injury for which Petitioners seek a remedy. Reply at 13.

This case is not directly analogous to Chrysler Corp, where the good cause hearing procedure was the very source of the asserted injury for which Chrysler sought a remedy. Petitioners do not challenge the constitutionality of the Committee and, in fact, expressly agree that the Committee may lawfully make decisions for those school districts that are not governed by a board of education provided for in a city charter. Nor do Petitioners challenge the lawfulness of the Committee’s hearing procedure. Rather, Petitioners challenge SB 442’s amendment of sections 5019 and 5020 to apply the Committee’s authority to charter cities. Nonetheless, the court agrees with Petitioners that administrative exhaustion generally is not required when a lawsuit raises a purely facial constitutional challenge to an agency’s authority to act, does not include any related statutory claims, does not depend on any factual determinations, and cannot be ruled upon by the agency itself.

Despite this conclusion, the court will require Petitioners to exhaust their administrative remedies before their facial challenge will be addressed.[7] This conclusion is reached for several reasons.

First, Petitioners delayed in making this challenge. SB 442 was signed into law on July 23, 2021 (DeNicola RJN Ex. H) and became effective on January 1, 2022. Petitioners did not file the Petition until March 18, 2022. Thus, Petitioners waited almost eight months after SB 442’s passage before filing suit. Neither opposition cites to the pertinent statute of limitations nor argues that a direct facial challenge is untimely. As such, this issue has been waived. See San Diego Unified school District v. Yee, (2018) 30 Cal.App.5^th 723, 737. The court will assume that the facial challenge was timely filed.

Nonetheless, Petitioners’ delay in challenging SB 422 may be considered by the court as favoring administrative exhaustion. The DeNicola/Crane petition was filed on January 4, 2022, and the Committee initially addressed it on February 2, 2022. Larson Decl., ¶4, Ex. A. Petitioners’ lawsuit followed. This at least has the appearance of a facial challenge made as part of an as-applied challenge. Such a facial challenge is permissible under Travis, supra, 33 Cal.4th at 769, but administrative exhaustion would be required for any as-applied challenge. Petitioners’ delay in making a facial challenge to SB 442 until after the DeNicola/Crane petition was filed works in favor of requiring exhaustion.

Second, facial challenges are generally disfavored because they risk “premature interpretation of statutes on the basis of factually barebones records”. See Mathews v. Becerra, (2019) 8 Cal. 5th 756, 797. They also run contrary to the fundamental principle of judicial restraint that courts should not anticipate a question of constitutional law. Ibid. There does not appear to be any factual record necessary for Petitioners’ facial challenge, but the doctrine of constitutional avoidance certainly applies. The court is loath to address Petitioners’ serious constitutional claims without completion of the administrative proceeding before the Committee.

While the Committee cannot declare SB 442 unconstitutional, Petitioners can oppose the merits of the DeNicola/Crane Petition and argue that it would not be in furtherance of the CVRA. Petitioners can argue that the required showing by DeNicola and Crane equates with the CVRA requirement that the District’s at-large elections have had a dilutive effect on minority voters’ electoral influence. Petitioners also can also argue that conversion to district-based elections is not an appropriate SB 442 remedy. Denial of the DeNicola/Crane petition would be sufficient redress and avoid the constitutional issue. See, e.g., Leek, supra, 124 Cal. App. 3d at 52-53 (1981) (exhaustion required because, although the PERB could not issue a declaration of facial unconstitutionality, other relief could redress petitioners’ grievances).

The avoidance of the constitutional issues also is appropriate because there is a possibility that the District will separate into two separate school districts – one based in Malibu and the other in Santa Monica. The City of Malibu has filed a petition to separate from the District, and settlement discussions between the District and the City of Malibu are ongoing. A recent press release, as well as reports from counsel for the parties to Committee staff, indicate that settlement discussions have resulted in a viable framework for dissolution.[8] Hence, the District may cease to exist in its current form, which would moot the DeNicola/Crane petition and this litigation.

Third, there will be no public harm in requiring exhaustion. The first election that could be impacted by the Committee’s decision on the DeNicola/Crane petition would take place in 2024. There is ample time for the Committee to conduct a hearing and issue a decision, and for the court thereafter to rule on Petitioners’ facial challenge. Because no other charter cities are currently contesting SB 442 petitions, there is no significant public interest in resolving Petitioners’ constitutional question now. [9]

Fourth, Petitioners have not shown that they will suffer significant harm if compelled to complete the hearing for the DeNicola/Crane petition. Intervenor argues that the burden on Petitioners of the hearing is minimal because there is usually only a half-day hearing. Int. Opp. at 11, n. 5. Petitioners reply that the administrative process is neither short nor simple. Intervenor’s comical projection of a half-day hearing is based upon the Committee’s handling of unopposed conversion proposals put forward by the affected school districts themselves. Petitioners argue that any hearing will be vigorously litigated with Petitioners required to expend considerable District resources to (a) retain legal counsel, demographers, and racially polarized voting experts, (b) identify and present relevant witnesses, including past and present District Board members, candidates, and residents, (c) brief the legal issues, and (d) present their case at one or more public hearings.[10] Reply at 16-17.

While Petitioners have rebutted Intervenor’s reliance on the minimal effort of previous Committee hearings, they fail to present any evidence of the burden of a hearing in this case. The Committee also correctly adds that any burden of exhaustion pales in comparison to Petitioners’ burden for a CVRA lawsuit, which Petitioners suggest should be the mechanism for determining whether trustee-area elections are warranted. Opp. at 11, n. 3

Fifth, the Committee’s decision may have relevance to Petitioners’ facial challenge. Intervenor contends that the rationale for administrative exhaustion, even in cases involving challenges to the constitutionality of an agency’s promulgating statute, is particularly apt because the Committee’s findings in adjudicating the DeNicola/Crane petition will inform this court’s consideration of whether the application of SB 442 to the District is constitutionally permissible. The Committee has the subject-matter expertise that makes it best suited to make findings of fact in the first instance. Shenkman Decl., ¶¶ 5-8, Ex. B. Int. Opp. at 12.

Petitioners reply that factual findings by the Committee would not aid this court’s analysis of the constitutional question. They are presenting a purely facial challenge to the text of SB 442 and any factual findings made by the Committee in an administrative hearing with respect to the District, its Board of Education, or the DeNicola/Crane petition would be irrelevant to this constitutional question. Reply at 17.

It is true that Petitioners’ principal claim is that SB 442 is unconstitutional because it bypasses Cal. Const., art. IX, section 16 by taking the power away from charter cities and their school districts’ voters to choose the manner in which the members of their school boards will be elected and purports to give that power to the county committee. See Pet. Op. Br. at 14-15. However, Petitioners also contend that SB 442 unlawfully supersedes a charter city’s home rule authority under Cal. Const., art. XI, section 5. Pet. Op. Br. at 16-17.

As such, the four-step framework used by Jauregui for analyzing an asserted conflict between a state law and a charter city enactment is relevant. Under this framework, the court first determines whether the city charter provision at issue regulates an activity that can be characterized as a “municipal affair.” California Fed. Savings & Loan Assn. v. City of Los Angeles, (1991) 54 Cal.3d 1, 16. If so, the court then determines whether there is an actual conflict between the state law and the city charter. Id. If there is an actual conflict and the matter is a municipal affair, the courts decide whether the state law addresses a matter of “statewide concern.” Id. at 17. Finally, the court decides whether the state law is reasonably related and narrowly tailored to resolution of that statewide concern. Id. at 17, 24.

Petitioners strenuously argue that SB 442 does not meet the fourth step of reasonably related and narrowly tailored to resolution of the statewide concern concerning the dilution of votes of a protected class in elections for the governing boards of school districts. Petitioners argue that SB 442 delegates unbridled discretion to non-democratically elected, unqualified lay officials to unilaterally change the method of school board member elections in charter cities without any required evidentiary showing or finding related to actual vote dilution, but merely upon a county committee’s unsupported declaration that the conversion to trustee-area elections would be “in furtherance of the purposes of the CVRA.” SB 442 does not limit its application to dilutive at-large elections, and it requires no such finding or determination to be made by a county committee before it may compel a school district in a charter city to convert from at-large to trustee-area elections without a vote of the electorate. The statute sweeps far too broadly to be narrowly tailored to achieve its purported objective of eliminating vote dilution. Reply at 10-11.

The Committee’s findings with respect to whether granting the DeNicola/Crane petition would be in furtherance of the CVRA may bear on the narrow tailoring issue. To be successful, Petitioners’ facial challenge requires that SB 442’s plain language presents “a total and fatal conflict” with constitutional constraints on the power of the Legislature to authorize county committees to unilaterally impose trustee-area voting in the District or any other school district governed by a board of education provided for in a charter. See California State Personnel Board v. California State Employees Ass’n, supra, 36 Cal.4th at 769. The Committee’s findings may undermine such a total and fatal conflict if, for example, the Committee commits to the dilution required by the CVRA. Whether the Committee will do so, and whether it would be authorized to do so by a proper construction of SB 442, are matters respectively unknown and not briefed to the court. Thus, there is a prospect that the Committee’s findings will bear on the constitutionality of SB 442.

Petitioners present a serious constitutional challenge to SB 442. While this case presents a facial challenge, it is made in the context of a pending administrative proceeding. For various reasons, the challenge should be deferred until the Committee has heard and decided the DeNicola/Crane petition. The Petition is denied.

Intervenor’s counsel is ordered to prepare a proposed judgment, serve it on the Petitioner’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 16, 2023 at 9:30 a.m.

[1] Petitioners seek judicial notice of (1) City Charter Article IX (Pet. RJN Ex. 1); (2) Article III of the original 1906 City Charter (Pet. RJN Ex. 2); (3) Article III of the 1914 Amendment to the City Charter attached to a December 28, 1914 Certificate of Ratification (Pet. RJN Ex. 3); (4) Article IX of the City Charter (Pet. RJN Ex. 4); and (5) the DeNicola/Crane petition (RJN Ex. 5). The requests for Exhibits 1, 2, and 4 are granted. Evid. Code §452(b). The request for Exhibit 3 also is granted. Evid. Code §452(c). Exhibit 5 is not an official agency act under Evid. Code section 452(c). While it may have been publicly filed with the Committee, that fact is insufficient to make it subject to judicial notice under Evid. Code section 452(h). The request is denied. The court notes, however, that Exhibit 5 was submitted by Intervenor DeNicola with her motion to intervene and may be considered by the court as part of the court file.

The Committee requests judicial notice of a joint District and City of Malibu press release entitled “Santa Monica-Malibu Unified School District and City of Malibu Announce Progress on School District Separation,” dated October 28, 2022. Opp. RJN Ex. A. The request is granted. Evid. Code §452(c).

DeNicola requests judicial notice of (1) the Legislative Counsel Digest of SB 442 (Int. RJN Ex. E); (2) SB 442’s vote history (Int. RJN Ex. F); (3) the Senate Floor Analysis of SB 442 (Int. RJN Ex. G); (4) the California Legislative Information history of actions for SB 442 (Int. RJN Ex. H); and (5) the trial court’s decision in Pico Neighborhood Association, et al. v. City of Santa Monica, BC616804 (DeNicola RJN Ex. I). Request Nos. 1-4 are granted. Evid. Code §452(b). Request No. 5 also is granted. Evid. Code §452(d).

[2] Intervenors contend that, as a matter of routine, a county committee’s adoption of trustee-area elections has not been “presented to the voters of the school district” and instead an “election waiver” by the State Board of Education has been granted for implementing trustee-area elections. Int. RJN Ex. E; see also Shenkman Decl. ¶ 9, Ex. C. Int. Opp. at 4. Presumably, this occurred where the school districts voluntarily sought trustee-area elections.

[3] While it is true that Petitioners’ counsel characterized the challenge at a trial setting as an as-applied challenge, an attorney’s conclusion about the legal nature of their claim is not controlling.

[4] An administrative agency cannot (a) declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; (b) declare a statute unconstitutional; or (c) declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations. Cal. Const. Art. III, §3.5.

[5] Intervenor notes that, while some other states have relaxed the administrative exhaustion rule where the constitutionality of a statute is challenged, California is not one of them. Morton v. Superior Court, (1970) 9 Cal.App.3d 977 984-85 (“the rule that the exhaustion doctrine is inapplicable when constitutional ... issues ... are raised ... is not followed in California.”); accord PegaStaff, supra, 236 Cal.App.4th at 388–89. Int. Opp. at 10.

[6] Intervenor does cite a post-1978 case, PegaStaff, supra, 236 Cal.App.4th at 374, but it involved judicial review of PUC decisions for which appellate courts have exclusive initial jurisdiction. Reply at 14, n. 8.

[7] Intervenor argues that Petitioners make no serious attempt to address Coachella’s three-factor test for deciding whether an administrative agency lacks jurisdiction before the agency proceedings have run their course. Int. Opp. at 11, n. 5. These factors are: (a) the injury or burden that exhaustion will impose, (b) the strength of the petitioner’s argument that the agency lacks jurisdiction, and (c) the extent to which administrative expertise may aid in resolving the jurisdictional question. 35 Cal.4^th at 1082. The Coachella factors have no direct application because it is undisputed that the Committee lacks jurisdiction to hear the facial claim. The court will, however, consider these factors as pertinent.

[8] “The City of Malibu and the Santa Monica-Malibu Unified School District have jointly settled on a detailed framework and process to pursue the separation of the two territories into two separate unified school districts: Santa Monica Unified and Malibu Unified.”. Resp. RJN Ex. A Opp. at 9, n. 1.

[9] Petitioners note that, in weighing the burden of exhaustion, a court will also consider whether there is “significant public interest in obtaining a definitive resolution of this fundamental legal question” where an issue may be involved in similar cases. See Coachella, supra, 35 Cal.4th at 1082. Reply at 16-17. Petitioners make no showing that any other charter city has an interest in resolution of SB 442’s constitutionality.

[10] Petitioners add that SB 442 authorizes the County Committee not only to impose trustee-area voting but to establish the boundaries for the new board of education districts — a process that typically requires multiple public hearings and months of behind-the-scenes work and analyses, even for the normal decennial re-districting process. That SB 442 requires only one hearing both for the determination of whether to establish trustee-area voting and to draw new district boundaries simply underscores the Legislature’s expectation that SB 442 would only apply to a school district’s voluntary conversion request. Reply at 16, n. 9.