Lead Opinion
Opinion
Education Code section 39807.5
When we granted review in Arcadia, the Court of Appeal in the instant case had already reached the opposite conclusion. Based on its belief that section 39807.5 could not be applied constitutionally, the Court of Appeal had directed the trial court to enter an injunction and writ of mandate against
In Arcadia we expressed “confidence] that the parties [would] file the appropriate action to challenge the continued propriety of the injunction against the Superintendent . . . .” (Arcadia, supra,
We conclude the Court of Appeal in Salazar II, supra, erred in two respects. Because Arcadia, supra,
I. Background
To judge the correctness of the Court of Appeal’s decision requires an understanding of what has and has not been adjudicated. For this reason it is necessary to set out in detail the complex procedural history of the case.
Under section 39807.5, a school district that chooses to provide transportation “may require the parents and guardians of all or some of the pupils
A. Proceedings in the Superior Court.
This case began in 1985, when plaintiffs Francisco Salazar and Irene Villalobos filed a petition for writ of mandate and complaint for injunctive relief in the Ventura County Superior Court against the state defendants and the Fillmore Unified School District. Plaintiffs alleged that section 39807.5 violated the state Constitution’s free school (Cal. Const., art. IX, § 5) and equal protection (Cal. Const., art. I, § 7, subd. (a)) clauses. Salazar claimed standing as a taxpayer. Villalobos alleged both that she was a taxpayer and that she was paying a transportation fee to send her grandchild to a public school in the Fillmore Unified School District.
Plaintiffs’ claim under the free school clause (Cal. Const., art. IX, § 5) was simply that any charge for transportation violated the clause. Plaintiffs’ claim under the equal protection clause (id., art. I, § 7, subd. (a)) was that section 39807.5 discriminated between people in districts that charge for transportation and people in districts that do not, and that it “places a disproportionate hardship on each family depending on wealth and family
The Fillmore Unified School District was dismissed from the lawsuit when it elected not to charge for transportation. Plaintiffs then moved for summary judgment on their claims against the state defendants. In the alternative, plaintiffs asked the court to determine that two issues were without substantial controversy: “1. That California Education Code Section 39807.5 is contrary to the Free Schools Clause provision of the California Constitution; [and] [^Q 2. That California Education Code Section 39807.5 is a denial of equal protection under the California Equal Protection Clause.” In support of their motion, plaintiffs submitted state records showing that, of the state’s 1,049 school districts, 1,008 were providing transportation. Of those, 60 were charging fees. Plaintiffs also submitted declarations by parents and guardians in the Corcoran, Fillmore, Santa Barbara, and Sonoma Valley school districts, who asserted their children had occasionally been refused transportation on account of inability to pay. In addition, some of the declarants had experienced difficulties in establishing their right to be exempted for indigency.
In response to plaintiffs’ motion, the state defendants disclaimed any duty to oversee the implementation of section 39807.5 by local school districts, because the statute permits “the governing board” of each district to decide whether to charge for transportation and expressly delegates to each district’s “governing board” the responsibility of adopting rules and regulations to exempt the indigent. Thus, according to the state defendants, no justiciable controversy existed between them and plaintiffs. The state defendants presented evidence that their only involvement with transportation fees assessed under section 39807.5, apart from determining and disseminating to local districts “the statewide average nonsubsidized cost of providing such transportation” (ibid..), was to maintain records of revenues received and reported by local districts.
The trial court denied plaintiffs’ motion. In its order, which preceded our decision in Arcadia, supra, 2 Cal.4th 251, the court expressed in dictum its “view that [section 39807.5 was] indeed unconstitutional.”
Summary judgment having been denied, the case proceeded to trial. Plaintiffs informed the court in their pretrial memorandum that “the sole substantive fact to be established [was] whether school transportation in California in 1986 is an ‘integral fundamental part of the elementary and secondary education or—amount[s] to [a] necessary element of any school[’]s activity’. Hartzell v. Connell (1984)
At trial plaintiffs presented only two witnesses, each an employee of the Department of Education. The first witness authenticated reports listing the districts that had and had not elected to charge for transportation and the amounts collected. The second witness, whose job it was to obtain from the Department of Transportation the statewide average cost of transportation and to disseminate that information to local school districts (see § 39807.5), testified that he had devoted “approximately the equivalent of one 8-hour day” to the task during the last three years. Consistently with their pretrial memorandum, plaintiffs did not offer into evidence the declarations submitted in support of their unsuccessful motion for summary judgment or any other evidence concerning how any local district was applying section 39807.5, except for the state records already mentioned showing that some districts were, and others were not, charging for transportation. The state defendants examined their employees, but presented no additional witnesses.
Following the trial, which took less than a day, the court entered judgment for the state defendants without reaching the merits of plaintiffs’ claims. In its statement of decision, the court explained the sole basis for its ruling was plaintiffs’ failure to join the school districts that were charging for transportation. In the court’s words, “[i]t is inherently unfair to those districts to
B. Salazar I.
Plaintiffs appealed. The Court of Appeal, Second Appellate District, reversed. In the Court of Appeal’s view, plaintiffs had standing as taxpayers, and the local districts were not indispensable parties; whether or not the districts were necessary parties, the trial court had discretion to proceed without them, and the decision not to do so was an abuse of discretion. (Salazar I, supra.) Rather than reversing and remanding for a trial on the merits, the Court of Appeal proceeded to decide the merits as a matter of law. Citing the plurality opinion in Hartzell v. Connell (1984)
We denied review and directed the Reporter of Decisions not to publish the Court of Appeal’s opinion. (Salazar v. Honig, review den. and opn. ordered nonpub., Sept. 1, 1988 (S006146).) On remand, the trial court followed the Court of Appeal’s directions by entering injunctive relief against the state defendants. The remedial order broadly declares, following
C. Arcadia.
The state defendants complied with the injunction. Nevertheless, at least 18 school districts continued to charge fees for transportation. (Arcadia, supra,
We affirmed. (Arcadia, supra,
“In addition,” we wrote, “the unusual history of [Salazar I] suggested] that it would be in the public interest to permit [Arcadia] to go forward. Although Salazar presented evidence at that trial on the unconstitutionality of section 39807.5,[
Proceeding to the merits, we held section 39807.5 did not on its face violate either the free school (Cal. Const., art. IX, § 5) or the equal protection (id., art. I, § 7, subd. (a)) clause. We upheld the statute under the free school clause by applying the test set out in Hartzell v. Connell, supra,
We also held the statute to be constitutional on its face under the equal protection clause. (Arcadia, supra, 2 Cal.4th at pp. 266-267.) We reasoned: “Salazar’s claims that school transportation fees discriminate against the poor and burden the exercise of a fundamental right might have merit if the statute were to be applied in such a way that children were prevented from attending school because they could not afford to pay the fees. However, section 39807.5 specifically provides that indigent children must be exempted from paying fees for transportation. If the statute is properly administered, no child will be denied transportation to school because of poverty. We have no reason to believe, in this facial challenge, that the statute will be applied improperly.” (Arcadia, supra, 2 Cal.4th at p. 266.)
Regarding Salazar’s further contention “that section 39807.5 allows impermissible disparity of treatment among students in different districts, based on whether or not each district charges for transportation and hów each defines indigency” (Arcadia, supra, 2 Cal.4th at p. 267), we reached this conclusion: “[T]his need not result in an equal protection violation. Under our interpretation of the statute, a student who cannot afford to pay for transportation to attend school may not be charged for school-provided transportation. If a district provides transportation without charge, the service will be free to all students; if a district charges for transportation, students who cannot afford to pay the fee will be exempted. Therefore, poor students in different districts will have equal access to school-provided transportation, if their districts elect to provide it.” (Arcadia, supra, 2 Cal.4th at p. 267.)
Our conclusion section 39807.5 was constitutional on its face did not directly affect the injunction in Salazar I, which was not before us. We did, however, note the inconsistency between the injunction, which barred any application of the statute, and our own conclusion the statute was capable of constitutional application. For that reason, we expressed “confiden[ce] that the parties [would] file the appropriate action to challenge the continued propriety of the injunction against the Superintendent . . . .” (Arcadia, supra, 2 Cal.4th at p. 259, fn. 5.)
Following our suggestion, the state defendants filed a motion to vacate the injunction and writ of mandate. Arcadia, supra,
The superior court vacated the injunction. The judge explained the basis for his ruling in these words: “It seems to me that the Court really has no choice in what to do. . . . [Plaintiffs] feel that the Court should not simply vacate the injunction, but maintain some kind of injunction against those school districts that were badly applying [section 39807.5] on the facts, [¶] I don’t see a way to do that. First of all, the petition doesn’t allege any invalidity as applied as distinguished from factual [sic] invalidity. The only factual basis in the petition, at least as I saw it, was the Fillmore district which was dismissed. The Court of Appeal did not rule on as applied validity, but ruled only on the constitutionality of the section, [¶] I think that’s clear from its statement that it ruled as a matter of law in the first paragraph at page 26 of the opinion.[
Plaintiffs appealed. The Court of Appeal reversed. (Salazar II, supra.) Apparently adopting plaintiffs’ view of Salazar I, the court asserted its prior opinion had not, in fact, been limited to the facial validity of section 39807.5 or decided as a matter of law. Instead, the court explained, its “Salazar I.. . ruling was specifically based on a factual record which focused entirely on
The Court of Appeal also rejected the state defendants’ argument they had no statutory power to supervise local districts’ application of section 39807.5, which expressly empowers the “governing board” of each district to adopt rules and regulations to exempt the indigent. Without addressing the relevant statutory language, the court declared it “illogical that, in enacting section 39807.5, the Legislature intended that districts . . . could formulate their own independent criteria of the meaning of indigency.” (Salazar II, supra.) Based on this belief, the court held the state defendants “must enact rules complying with section 39807.5, which school districts in turn must obey in formulating their own rules.” (Salazar II, supra.) The court disposed of the case by ordering the trial court, on remand, “to issue an amended injunction and an amended writ of mandate in accordance with [the] views expressed” in its opinion.
In a petition for rehearing, the state defendants pointed out that plaintiffs had dismissed the only defendant (Fillmore Unified School District) alleged to have been misapplying section 39807.5, and that the so-called “factual record” of “district abuses” to which the Court of Appeal had referred (Salazar II, supra) consisted of the declarations accompanying plaintiffs’ unsuccessful motion for summary judgment, which had not been proffered or admitted as evidence at trial. The Court of Appeal denied the petition, but modified its opinion to explain it was “unfair” for the state defendants, who had “voluntarily chosen to handle this case throughout its history on a legal and not factual basis,” to “refocus their energies on the factual issues . . . .” (Salazar II, supra.) The court also concluded the state defendants’ challenge to the injunction, which we had suggested in Arcadia (supra,
We granted the Superintendent’s petition for review.
II. Discussion
A. The Trial Court Did Not Abuse Its Discretion by Vacating the Injunction.
The ultimate question before us is whether the trial court abused its discretion by vacating the injunction. “ ‘It is a rule so universally followed
Here, because the injunction was inconsistent with our decision in Arcadia, supra,
Arcadia, supra, 2 Cal.4th 251, thus changed the assumptions about the law upon which the injunction was based and justified the trial court in exercising its discretion to vacate the injunction. The Court of Appeal’s contrary conclusion was erroneous.
B. The Trial Court Did Not Abuse Its Discretion by Refusing to Issue a Modified Injunction Addressing the Application of Section 39807.5 by Local School Districts.
The trial court, in vacating the injunction, denied plaintiffs’ request for a modified injunction that would have required the state defendants to control the manner in which local districts applied section 39807.5. The court reasoned plaintiffs had not alleged the statute was being improperly applied
The Superintendent argues the Court of Appeal erred. The ultimate question before us, once again, is whether the trial court abused its discretion by declining to the modify the injunction. (Union Interchange, Inc. v. Savage, supra,
1. There was no proper basis for a modified injunction.
The Court of Appeal ruled as it did in the belief local districts were misapplying the statute. Under those circumstances, the court reasoned, the trial court had a duty to “exercis[e] continuing jurisdiction to achieve institutional reform . . . until it [was] satisfied that the unconstitutional practices [had] been discontinued and there [was] no reasonable expectation that such practices [would] recur.” (Salazar II, supra, citing Battle v. Anderson (10th Cir. 1983)
Certainly a court has the inherent power to modify its injunctions as “the ends of justice” require. (Sontag Chain Stores Co. v. Superior Court, supra,
The Court of Appeal (Salazar II, supra) wrote:
“Our Salazar I .. . ruling was specifically based on a factual record which focused entirely on the unlawful use or nonuse of the statute’s indigency fee waiver provision by some of the school districts electing to charge transportation fees. Salazar Vs facts are that some indigent school children in California are required to pay transportation fees because districts are not informing parents about the fee waiver provision, are not implementing an application procedure for the waiver, or are basing entitlement to the waiver on a families’ receipt of welfare aid. The Salazar I facts further reveal that some indigent students who cannot afford to pay transportation fees are not able to attend school.”
The Court of Appeal continued: “It was the undisputed evidence of district abuses of the fee waiver policy, and the resultant discrimination against indigent students, that provided the rationale for our decision that section 39807.5 was unconstitutional. Thus, the factual basis for our ruling was the statute’s improper application.” (Salazar II, supra.)
This interpretation of Salazar I was unexpected. We (Arcadia, supra,
No other interpretation of the Salazar I opinion seemed reasonable. In Salazar I the Court of Appeal had justified its decision to reach the merits, rather than to remand the case to the trial court, on the ground it was not necessary to resolve any factual issues. The court wrote: “That the trial judge chose to deny appellants’ right to an adjudication of the law’s illegality, by concluding that the suit was improper on procedural grounds, does not signify that this matter cannot now be resolved on appeal. The [question of the] constitutionality of the statute is solely one of law, and thus an entirely proper subject for review.” (,Salazar I, supra, italics added.)
This statement by the court in Salazar I—that it was holding section 39807.5 unconstitutional as a matter of law—cannot be reconciled with the court’s later assertion in Salazar II that “the factual basis for [its] ruling was the statute’s improper application.” (Salazar II, supra, italics added.) The court misinterpreted its prior opinion.
To be sure, the court in Salazar I, supra, had referred to declarations in which parents and guardians in four local districts averred the districts were
“As can also be seen from the record herein, the fee-waiver policy contained within section 39807.5 does not assure school attendance. There is evidence that some families who are not eligible for the fee-waiver policy nevertheless have difficulty paying transportation fees. One school district has apparently used the statute as a vehicle of intimidation to force parents to pay the fee. Other school districts appear to not be enforcing the fee-waiver provision, either by failing to inform the community about the provision, or by not adopting application procedures. [¶] Even if these abuses of local authority did not exist, the Hartzell court has ruled that fee-waiver policies do not satisfy the requirements of the free school guaranty. (35 Cal.3d [at p.] 911 . . . .)” (Salazar I, supra.)
Read in context, this reference by the Court of Appeal in Salazar I to plaintiffs’ declarations can properly be described only as rhetorical support for its conclusion section 39807.5 could not be constitutionally applied. In other words, to the argument that exemptions for the indigent prevented section 39807.5 from being an obstacle to school attendance, the Court of Appeal replied the exemptions should not be assumed to have that effect.
Certainly the Court of Appeal had no proper basis for holding that any local district was applying section 39807.5 improperly. The trial court never made any findings that might support such a holding. Nor was it asked to do so. In their complaint, plaintiffs had asked the court to order the state defendants to prevent school districts from charging any fees for transportation. To be sure, plaintiffs at an earlier time had asked for relief against alleged misapplications of section 39807.5 by the Fillmore Unified School District.
Unlike plaintiffs, we do not read the Court of Appeal’s opinion in Salazar I as containing findings of fact about the statute’s application. As noted, plaintiffs interpret as containing factual findings the passage from Salazar I referring to plaintiffs’ declarations. (Salazar I, supra; see ante, page 853.) Plaintiffs argue the court merely exercised its power under Code of Civil Procedure section 909 to make factual findings in nonjury cases.
It thus appears no court has ever properly adjudicated that any local district is applying section 39807.5 improperly. Accordingly, no legal basis exists for the modified injunction directed by the Court of Appeal, which would require the state defendants to assume control over the application of section 39807.5 by local districts. Under these circumstances, the trial court did not abuse its discretion by denying plaintiffs’ request, and the Court of Appeal erred in holding to the contrary.
That the state defendants, who defended the case on procedural grounds, did not object to the declarations asserting various districts were misapplying section 39807.5, does not change our conclusion. Certainly unopposed declarations can justify a court in granting summary judgment if there are no other legal obstacles to such a ruling, such as the trial court found to exist in this case. However, declarations, even unopposed ones, are merely evidence; they do not substitute for findings that have never been made.
2. The relief requested by plaintiffs and directed by the Court of Appeal is contrary to section 39807.5.
The Court of Appeal’s direction to the trial court to modify the injunction was erroneous on other grounds, as well. The Court of Appeal, adopting plaintiffs’ suggestion, directed the trial court to order the state defendants to promulgate mandatory, uniform regulations governing the exemption of indigent pupils. Such relief is contrary to section 39807.5,
Plaintiffs argue the State Board of Education (State Board) has the power to adopt uniform regulations on this subject under section 33031, a general grant of rulemaking authority. The plain terms of the relevant statutes disprove the argument. Under section 33031, “[t]he [state] board shall adopt rules and regulations not inconsistent with the laws of this state ... for the government of the day and evening elementary schools, the day and evening secondary schools, and the technical and vocational schools of the state . . .-.”(§ 33031, italics added.) The rules the Court of Appeal would have the State Board adopt are “inconsistent with the laws of this state” (ibid.) because they would infringe the local districts’ express statutory authority (§ 39807.5) to adopt rules and regulations governing the exemption of indigent pupils.
That valid rules adopted by the State Board take precedence over rules adopted by local districts (§ 35291)
Plaintiffs argue the state defendants can adopt rules and take other actions not specifically authorized by statute if necessary to correct unconstitutional practices in local school districts. The argument is based primarily on Butt v. State of California (1992)
The argument fails for two reasons.
First, we were not presented in Butt, supra, 4 Cal.4th 668, as we are here, with a statute expressly giving to an entity other than the State Board the power to adopt rules on a particular subject matter and, thus, implicitly barring the State Board from doing so. The express delegation to local school districts of the power to adopt rules governing the exemption of indigent pupils (§ 39807.5) makes it impossible to read section 33031 as conferring the same power on the State Board.
Nothing in Hartzell v. Connell, supra,
Second, no violation of the Constitution has properly been found to exist in this case. This distinguishes the case before us from Butt, supra, 4 Cal.4th 668, in which the trial court found after an evidentiary hearing that an
Two cases involving alleged racial discrimination, Tinsley v. Palo Alto Unified School Dist. (1979)
Under these circumstances, the language of sections 33031 and 39807.5 clearly sets out the respective authority of the local districts and the state defendants to make rules governing the exemption of pupils from payment of transportation fees. Thus, there is no need to address the Superintendent’s arguments concerning the import and validity of the Third District’s decision in Comite de Padres de Familia v. Honig (1989)
Plaintiffs’ brief does not make clear whether they are arguing here, as they did in the Court of Appeal, that the law-of-the-case doctrine bars the Superintendent from challenging the ruling in Salazar I, supra, to the effect that section 39807.5 is unconstitutional. The argument would have to be rejected in any event. If plaintiffs are arguing the Salazar I court held section 39807.5 unconstitutional as applied, the argument is simply incorrect, as we have already explained. (See ante, page 852.) If plaintiffs were to argue the Salazar I court held section 39807.5 unconstitutional on its face, our decision in Arcadia, supra,
It would, moreover, be unjust to hold now that the Superintendent may not relitigate the holding in Salazar I, after rejecting the same argument when plaintiff Salazar made it as an intervener in Arcadia {supra, 2 Cal.4th at pp. 257-258; see ante, p. 846). The law-of-the-case doctrine “will not be adhered to where its application will result in an unjust decision.” (DiGenova v. State Board of Education, supra,
C. Miscellaneous Issues.
The parties have raised other issues that do not warrant extensive discussion in view of our decision to reverse the decision of the Court of Appeal.
1. The Superintendent’s argument regarding indispensable parties.
The Superintendent asks us to revisit the earlier holding in Salazar I, supra, that no local school district is an indispensable party to this litigation. Our disposition of this case moots the question.
The question is not properly before us in any event, because it was decided in Salazar I, supra, which we declined to review, and because the decision on review (Salazar II, supra) raises the single issue of whether the trial court abused its discretion by vacating, rather than modifying, the injunction.
2. The State Board’s proposed regulations.
After the Court of Appeal rendered its decision in Salazar II, supra, the State Board changed its position in this litigation. Up to that time the State
The State Board’s new position could be construed as á request that we not review Salazar II, supra, because the board is willing to abide by that decision. Such a request would have to be declined. The Superintendent, as a party bound by the injunction in Salazar II, has an independent right to have us determine the decision’s validity.
The State Board also asks us to confirm its power to promulgate regulations on this subject. We cannot. “The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.” (People ex rel. Lynch v. Superior Court (1970)
III. Conclusion
Because we held in Arcadia, supra, 2 Cal.4th 251, that section 39807.5 is capable of being applied constitutionally, the trial court correctly exercised its discretion to vacate the injunction. Because plaintiffs did not prove any local district was misapplying section 39807.5, there was no basis for a modified injunction addressing the statute’s application. Thus, the trial court did not abuse its discretion in refusing to modify the injunction. In holding to the contrary, the Court of Appeal erred.
The judgment of the Court of Appeal is reversed.
Lucas, C. J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
Notes
All further references to statutes, unless otherwise noted, are to the Education Code.
In full, section 39807.5 provides:
“When the governing board of any school district provides for the transportation of pupils to and from schools in accordance with the provisions of Section 39800, or between the regular full-time day schools they would attend and the regular full-time occupational training classes attended by them as provided by a regional occupational center or program, the governing board of the district may require the parents and guardians of all or some of the pupils transported, to pay a portion of the cost of such transportation in an amount determined by the governing board.
“The amount determined by the board shall be no greater than the statewide average nonsubsidized cost of providing such transportation to a pupil on a publicly owned or operated transit system as determined by the Superintendent of Public Instruction, in cooperation with the Department of Transportation.
“For the purposes of this section, ‘nonsubsidized cost’ means actual operating costs less federal subventions.
“The governing board shall exempt from these charges pupils of parents and guardians who are indigent as set forth in rules and regulations adopted by the board.
“No charge under this section shall be made for the transportation of handicapped children.
“Nothing in this section shall be construed to sanction, perpetuate, or promote the racial or ethnic segregation of pupils in the schools.”
As previously noted, we reached the opposite conclusion in Arcadia, supra,
“In compliance with the decision of the Court of Appeal, Second Appellate District, Division Six, this Court’s previous judgment in this case is set aside and vacated and a peremptory writ of mandate shall issue and a permanent injunction is granted against the Defendants in this case and this Court further orders, decrees and rules as follows:
“1. That California Education Code section 39807.5 violates the Free Schools and Equal Protection Clauses of the California Constitution for the reasons set forth in the decision of the Court of Appeal in Case No. B026629 [Salazar /, supra],
“2. That no public school district in this state can lawfully charge bussing or transportation fees to school children or their parents for transportation to and from school.
“3. That the State Defendants, and each of them, shall cease and desist from calculating the state-wide average nonsubsidized cost of providing bus transportation to a pupil to and from school under Education Code section 39807.5.
“4. That the Defendant State Superintendent of Public Instruction, Bill Honig, and the other State Defendants in this case shall, within ten (10) days of entry of this order, mail a copy of this order to all school districts, along with a Legal Advisory informing districts to comply with this order.
“5. Should any school district charge a fee described in paragraph 2 following the notification set forth in this judgment, the Defendants, and each of them, shall issue an order to such district to cease and desist from the imposition of such fee and shall enforce such order pursuant to all powers vested in the Defendants.
“6. This Court shall maintain continuing jurisdiction over this action. The State Defendants shall, within thirty (30) days, report to pounsel for the Plaintiffs and the Court all efforts taken by them to comply with this judgment.
“7. The Clerk of the Ventura County Superior Court, after the filing of this judgment, shall issue a peremptory writ of mandate in a format approved by this Court.
“8. The qbligations of the Defendants under this judgment shall commence immediately upon the filing of this judgment.”
Namely, state records showing that some districts were, and others were not, charging for transportation. The evidence related to plaintiffs’ claim that the statute, on its face, authorized discrimination between people in different districts by permitting each district to choose whether or not to charge for transportation. We subsequently rejected the claim when plaintiff Salazar advanced it as an intervener in Arcadia (supra, 2 Cal.4th at p. 267).
Section 39800 provides in relevant part: “The governing board of any school district may provide for the transportation of pupils to and from school whenever in the judgment of the board such transportation is advisable and good reasons exist therefor. . . .”
The Court of Appeal had written: “The [question of the] constitutionality of the statute is solely one of law, and thus an entirely proper subject for review. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 242, p. 247.)” (Salazar I, supra.)
The authority cited by the Court of Appeal states that the “[i]interpretation and applicability of a statute or ordinance is clearly a question of law.” (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 242, p. 247.)
See ante, at page 847.
We subsequently reached the opposite conclusion in Arcadia, supra,
Specifically, plaintiffs had asked in their complaint, inter alia, “[f]or a peremptory writ of mandamus ordering the district respondents to cease and desist from collecting fees for transportation until such time as the Fillmore Unified School District adopts, and implements proper uniform rules and regulations reasonably designed to exempt pupils of parents and guardians who are indigent from the fee.”
Code of Civil Procedure section 909 provides: “In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.”
Califomia Rules of Court, rule 23, provides:
“(a) [Request for findings] A request that the reviewing court make findings of fact shall contain a draft of the proposed findings, and may be made in a brief, or a separate application may be served and filed. If opposing counsel has not had an opportunity in his brief to object to the request, he may serve and file written opposition thereto.
“(b) [Application to produce evidence] Proceedings for the production of additional evidence on appeal shall be in accordance with rule 41. The court may grant or deny the application in whole or in part, and subject to such conditions as it may deem proper. If the application is granted, the court, by appropriate order, shall direct that the evidence be taken before the court or a department or a justice thereof, or before a referee appointed for the purpose. The court shall also prescribe reasonable notice of the time and place for the taking of the evidence and shall indicate the issues on which the evidence is to be taken. Where documentary evidence is offered, either party may submit the original or a certified or photostatic copy thereof and the court may admit the document in evidence and add it to the record on appeal.”
Section 35291 provides, in relevant part: “The governing board of any school district shall prescribe rules not inconsistent with law or with the rules prescribed by the State Board of Education, for the government and discipline of the schools under its jurisdiction. . . .”
Section 39831 provides: “The State Board of Education shall adopt reasonable regulations relating to the use of schoolbuses by school districts and others. Such regulations shall not include the safe operation of schoolbuses which regulations shall be adopted instead by the Department of the California Highway Patrol pursuant to Section 34500 of the Vehicle Code. [¶] The Department of the California Highway Patrol shall adopt regulations relating to the safe operation of schoolbuses which shall include requiring school district governing boards to include in their schoolbus driver training programs, the proper actions to be taken in the event that a schoolbus is hijacked.”
Dissenting Opinion
I dissent.
The majority discuss at length the somewhat tortuous proceedings leading up to the present litigation. But there is a more fundamental principle involved: whether every pupil in California, regardless of economic circumstances, is entitled to a free public school process, including transportation. (See Hartzell v. Connell (1984)
The majority strayed from this basic, indeed constitutional, principle in their prevailing opinion in Arcadia Unified School Dist. v. State Dept, of Education (1992)
The importance of school transportation was stressed almost half a century ago in the case of Everson v. Board of Education (1947)
That children of parents on welfare may possibly obtain a waiver of transportation costs does not solve the problem, particularly for those industrious working parents struggling to make ends meet in these difficult economic times. Most significantly, the Constitution guarantees access to free public schooling to all, not merely to indigents. (Cal. Const., art. IX, § 5.) As I pointed out in my dissent in Arcadia (supra,