Judgment: MILAGROS AZUCENA WENDZ VS. CALIFORNIA DEPARTMENT OF EDUCATION ET AL

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KEITH YAMANAKA, State Bar. No. 78971 San ‘ILL. Superior Court

General Counsel om!
VIRGINIA JO DUNLAP, State Bar No. 142221 MAR 1.0:2021

Assistant General Counsel

TERRI A. McFARLAND, State Bar No. 182968 a ; a i L Fo AT
Deputy General Counsel ‘

California Department of Education eputy Clerk
1430 N Street, Suite 5319

Sacramento, California 95814

Telephone: 916-319-0860

Facsimile: 916-322-2549

tmefarland@cde.ca.gov

Attorneys for California Department of Education and Tony Thurmond

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

Case No. bean
[PR IGMENT GRANTING IN

PART AND DENYING IN PART PETITION
FOR WRIT OF MANDATE

MILAGROS AZUCENA WENDZ
Plaintiff/Petitioner,
ve

CALIFORNIA DEPARTMENT OF EDUCATION;) Hearing Date: January 28, 2021

TONY THURMOND, in his official capacity as Time: 1:30 p.m.
STATE SUPERINTENDENT OF PUBLIC Dept.: 302
INSTRUCTION; DOES 1] THROUGH 30, Judge: Hon. Richard B. Ulmer, Jr.
inclusive,
Defendants/Respondents

meee ermermermerer

This matter came regularly before this court on January 28, 2021, for hearing in Department 302
of the Superior Court for the County of San Francisco, the Honorable Richard B. Ulmer, Jr., presiding.
Curtis Davis appeared as attorney for Plaintiff/Petitioner and Terri A. McFarland appeared as attorney
for the Defendants/Respondents. The record of the administrative proceedings having been received
into evidence and examined by the court, arguments having been presented, and an Order Re: Writ of
Mandate, Complaint having been entered by the Court on February 1, 2021, IT IS ORDERED THAT:
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Case No. CPF-20-517067 1 [Propesed{ Judgment Denying Pet.
for Writ of Mandate and ComplaintBR WN

Co Oo IN AY

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1. Petitioner’s request for a Writ of Mandate is DENIED, except that portion directing that
Respondents take all necessary action to rescind California Code of Regulations, title 5,
(5 CCR) section 12014, subdivision (c) and the phrase “To the extent possible” in 5 CCR,
section 12019, subdivision (d);

2. Judgment as to all aspects of the Petition for Writ of Mandate raised in Case No. CPF-20-
517067 is entered in favor of Respondents, except that

3. A writ shall issue directing that Respondents take all necessary action to rescind and take no
action to enforce 5 CCR, section 12014, subdivision (c); and take all necessary action to rescind
and take no action to enforce the phrase “To the extent possible” in 5 CCR, section 12019,
subdivision (d); and

4, Respondents are the prevailing party; Petitioner to bear her own costs.

A copy of the Court’s Order Re: Writ of Mandate, Complaint is attached to this judgment

LET JUDGMENT BE ENTERED ACCORDINGLY.

patep:_3//e/2/ Pd BUS f.

THE HONORABLE RICHARD B. ULMER, JR.
Judge of the San Francisco Superior Court

A

Case No. CPF-20-517067 2 [Prepesed} Judgment Denying Pet.
for Writ of Mandate and ComplaintSUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ENDORSED
San Francisco Caunty Suoerpr Court
FEB 012021
CLERK OF THE COURT
ovt—_B. MICHAEL DILES
Deputy Clerk
MILAGROS AZUCENA WENDZ, Case No. CPF-20-517067
PlaintiffPetitioner, ORDER RE WRIT OF MANDATE, |
vs. COMPLAINT i
CALIFORNIA DEPARTMENT OF
EDUCATION, et al.,
Defendants/Respondents.

Factual and Procedural Background
Parent-councils advise state officials on California’s migrant education program. In
2018, the state superintendent of public instruction noticed proposed regulations for regional
parent.advisory councils, including term limits. These regulatioris followed — and mirrored —
regulations adopted for the state-level migrant education council,
After comment periods and modifications, the regulations were filed on December 24,
2019, with an April 1, 2020 effective date. Milagros Azucena Wendz filed.a combined petition

for writ.of mandate and complaint for declaratory and injunctive relief to stop enforcement of theregulations and to rescind them.' Petitioner has been a parent member of a regional council for
four years, so she is affected by the regulations’ term-limits.
Legal Analysis

Petitioner attacks the regulations on four fronts.

Regulatory Authority. Petitioner first argues that the superintendent had no authority-to
adopt the regulations. (Govt. Code §11342.1 (“Each regulation, to be effective, shall be within
the scope-of authority.conferred”).) However, using the mandatory word “shall,” Education
Code. §54444.2 requires the superintendent to “take the steps necessary to assure effective
parental involvement through the state migrant education program.” (Id.) Further, these steps
“shall include” adopting “rules and regulations” regarding “parent advisory council{s].” (Id.)

Faced with this grant of authority, petitioner isolates a phrase in Education Code
§54444.2: “parents have the sole authority to decide on the comiposition of the council.” Beyond
statutory requirements that two-thirds of council members be parents of migrant children and.
knowledgeable.of children’s needs, petitioner argues: “No other limits are placed on the-parents’
sole authority.” Thus, petitioner says parents have almost unlimited power to decide who
qualifies to serve on a council, for how long, whether alternate members can serve, whether to
have term limits, how elections will be conducted, etc. Moreover, parents would enjoy this “sole
authority” on each of 20. councils, creating inconsistency across California.

Petitioner's is an untenable reading of the statute. The phrase she isolates immediately
follows and.immediately precedes references to casting votes in council elections. (Edu. Code
§54444.2(a)(1).) Hence, by the statute’s plain language, deciding a. council’s “composition”

means electing its members, no-more.

+ Milagros Azucena Wendz is referred to as “petitioner.”. California’s department of education and superintendent
of public Instruction are “respondents.”Regulations’ Consistency With Statutes. Petitioner next argues that fotir regulations
are inconsistent with statutes and thus invalid. (Govt. Code §11342.2 (“no.regulation adopted is
valid or effective unless consistent and not in conflict with the statute”).)

First, petitioner says 5 CCR §12011 is inconsistent with Education Code §54444.2 in that.
the former limits community council members to three, which could.make parents five-sixths of
a council if as many as 15 parents served. Education Code §54444.2 provides: “At least two-
thirds of the members” of a parent advisory council “shall be the parents of migrant children,”
and thus sets no upper bound on parent membership.” There is no inconsistency here:

Second, petitioner says 5 CCR §12014(c) is inconsistent with Education Code
§54444,1(a) and federal definitions of “migrants.” The reason: the regulation requires a parent
council member to “forfeit his or her membership” if he-or she “resides for more than six months
in a district other than the district from which the member was elected.” Petitioner has‘a point.
Migrants are‘migratory;. they often reside more than six months in a different district in order to
find work. Respondents’ brief did not try to defend 5 CCR §12014(c).

Third, petitioner asserts that 5 CCR §12019(d) unlawfully eliminates a requirement that
interpretation be provided. at council meetings by use of the phrase““Fo the extent possible.”
Petitioner again has a point. A federal regulation requires that “parent-advisory councils” be
“carried out — in a...language understandable to the parents.” (20 U.S.C. §6394(c)(3)(B).)
Respondents’ counsel stated at hearing that they do.not oppose elimination of “To the extent
possible” from 5 CCR §12019(d).

Fourth, petitioner says 5 CCR §12021 “unlawfully restricts” council “members from

discussing parent engagement during their meetings.” The regulation does not so provide.

? All emphasis in this order has been added.Procedural Issues. Petitioner also argues that respondents violated procedural
requirements in three ways.

First, petitioner notes that the initial statement of reasons for the regulations was not
supported by documents. (Govt. Code §11346.2.) It did not have to be. Section 11346.2(6)(3)
requires identification of a “document, if any, upon which the agency relies in proposing...a
regulation.” As petitioner'says, respondents:relied on oral reports of “routine compliance visits,”
“program reviews” and “monitoring visits” by their staff to find that council members “often stay
for many years,” “new families are less likely to ever hold a leadership position,” there was
“stifled and limited participation by new or current migrant parents” and instead “participation
from former members, who no longer migrated nor do they have children eligible for the
program,” Respondents’ reliance was lawful and their stated reasons sufficed.

Second, petitioner faults respondents for not embracing a “reasonable alternative” to the
regulations. (Govt. Code §11346.2(b)(4)(A).) The proposed alternative: a “training program”
for council members to “implement more formal election procedures.” As shown above, the
councils have no authority to implement election procedures.

Third, petitioner claims respondents violated. Government Code §11346.8(c) by adding
the words “no alternate members” to 5 CCR §12011(a) during the regulatory process.
Respondents intended not to have alternate members on the councils and so did not refer to
alternates in the regulations’ original draft. When a public question was raised about alternates,
respondents added this language to be explicit — and made the modification available-for a 15-
day comment period. This was a “sufficiently related change.” (Govt. Code §11346.8(c).) The

statute was obeyed.Substantial Evidence. Petitioner finally argues that the regulations were not supported

by'substantial evidence. As detailed above, I disagree.
Disposition

For the reasons stated above, 5 CCR §12014(c) is ordered rescinded, as is the phrase “To
the extentpossible” from 5 CCR §12019(d). In all other respects, petitioner’s application for a
writ of mandate is denied. and judgment on her complaint is for respondents and:against
petitioner. Respondents are the prevailing parties and shall file proposed forms of writ and
judgment, which are to be submitted to -petitioner’s counsel for approval as to form.

Dated: February. 1, 2021

tA tt, f

Richard B. Ulmer Jr.
Judge of the Superior CourtEstate of Albert Witt

Case No; PES-16-299721

CERTIFICATE OF SERVICE BY MAIL (C.C.P. §1013)

The undersigned certifies, under penalty of perjury, that: |! am employed in the City and
County of San Francisco, California, am over the age of 18 years, and am not a party to
the within action. | served the attached Order Re Writ of Mandate, Complaint by
enclosing a true copy thereof in an envelope(s) addressed as shown below and placing
the envelope(s) for collection and mailing on February 1, 2021 in San Francisco,
California following the Court's ordinary practices. | am readily familiar with the Court's
practice for collecting and processing corréspondence for mailing. On the same day
that correspondence is placéd for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service in a sealed envelope with

postage fully prepaid.

Curtis Davis, Esq.

California Rural Legal Assistance, Inc.

449 Broadway
El Centro, CA 92243

Cynthia L. Rice, Esq.

California Rural Legal Assistance, Inc.

1430 Franklin Street, Suite 103
Oakland, CA 94612

Rebecca A. Buckley-Stein, Esq.

California Rural Legal Assistance, Inc.

601 High Street, Suite C
Delano, CA 93215

Dated: February 1, 2021

Keith T. Yamanaka, Esq.

Virginia Jo Dunlap, Esq.

Terri A.. McFarland, Esq.

Office of General Counsel
California Department of Education
1430 N Street, Suite 5319
Sacramento, CA 95814

Deborah Escobedo, Esq.
Lawyers’ Committee for Civil Right
31 Steuart Street, Suite 400

San Francisco, CA 94105

or