SAN DIEGO SCHOOL DIST. v. COM. ON MANDATES, S109125.

• Decision Date: 02 August 2004
• Docket Number: No. S109125.,S109125.
• Citation: 94 P.3d 589,33 Cal.4th 859,16 Cal.Rptr.3d 466
• Court: California Supreme Court
• Parties: SAN DIEGO UNIFIED SCHOOL DISTRICT, Plaintiff and Respondent, v. COMMISSION ON STATE MANDATES, Defendant and Appellant; California Department of Finance, Real Party in Interest and Appellant.

16 Cal.Rptr.3d 466

94 P.3d 589

33 Cal.4th 859

SAN DIEGO UNIFIED SCHOOL DISTRICT, Plaintiff and Respondent, v. COMMISSION ON STATE MANDATES, Defendant and Appellant;

California Department of Finance, Real Party in Interest and Appellant.

No. S109125.

Supreme Court of California.

August 2, 2004.

Paul M. Starkey, Camille Shelton, Sacramento, and Katherine A. Tokarski for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Pamela Smith-Steward, Chief Assistant Attorney General, Andrea Lynn Hoch, Assistant Attorney General, Louis R. Mauro and Susan R. Oie, Deputy Attorneys General, for Real Party in Interest and Appellant.

Jo Anne Sawyerknoll, Sacramento, Tad Seth Parzen, Jose A. Gonzales and Arthur M. Palkowitz, San Diego, for Plaintiff and Respondent.

Lozano Smith, Diana McDonough, San Rafael, Harold M. Freiman, San Ramon, Jan E. Tomsky, San Rafael, and Gregory A. Floyd, Fresno, for California School Boards Association Education Legal Alliance as Amicus Curiae on behalf of Plaintiff and Respondent.

Steven M. Woodside, County Counsel (Sonoma) as Amicus Curiae on behalf of Plaintiff and Respondent.

GEORGE, C.J.

Article XIII B, section 6, of the California Constitution provides: "Whenever the Legislature or any state agency mandates a new program or higher level of service on any local government, the State shall provide a subvention of funds to reimburse such local government for the costs of such program or increased level of service...."¹ (Hereafter article XIII B, section 6.)

Plaintiff San Diego Unified School District (District), like all other public school districts in the state, is, and was at the time relevant in this proceeding, governed by statutes that regulate the expulsion of students. (Ed.Code, § 48900 et seq.) Whenever an expulsion recommendation is made (and before a student may be expelled), the District is required by Education Code section 48918 to afford the student a hearing with various procedural protections — including notice of the hearing and the right to representation by counsel, preparation of findings of fact, notices related to any expulsion and the right of appeal, and preparation of a hearing record. Providing these procedural protections requires the District to expend funds, for which the District asserts a right to reimbursement from the state pursuant to article XIII B, section 6, and implementing legislation, Government Code section 17500 et seq.

We granted review to consider two questions: (1) Are the hearing costs incurred as a result of the mandatory actions related to expulsions that are compelled by Education Code section 48915 fully reimbursable — or are those hearing costs reimbursable only to the extent such costs are attributable to hearing procedures that exceed the procedures required by federal law? (2) Are any hearing costs incurred in carrying out expulsions that are discretionary under Education Code section 48915 reimbursable? After we granted review and filed our decision in Department of Finance v. Commission on State Mandates (Kern High School Dist.) (2003) 30 Cal.4th 727, 134 Cal.Rptr.2d 237, 68 P.3d 1203 (Kern High School Dist.), we added the following preliminary question to be addressed: Do the Education Code statutes cited above establish a "new program" or "higher level of service" under article XIII B, section 6? Finally, we also asked the parties to brief the effect of the decision in Kern High School Dist., supra, 30 Cal.4th 727, 134 Cal.Rptr.2d 237, 68 P.3d 1203, on the present case.

We conclude that Education Code section 48915, insofar as it compels suspension and mandates a recommendation of expulsion for certain offenses, constitutes a "higher level of service" under article XIII B, section 6, and imposes a reimbursable state mandate for all resulting hearing costs — even those costs attributable to procedures required by federal law. In this respect, we shall affirm the judgment of the Court of Appeal.

We also conclude that no hearing costs incurred in carrying out those expulsions that are discretionary under Education Code section 48915 — including costs related to hearing procedures claimed to exceed the requirements of federal law — are reimbursable. As we shall explain, to the extent that statute makes expulsions discretionary, it does not reflect a new program or a higher level of service related to an existing program. Moreover, even if the hearing procedures set forth in Education Code section 48918 constitute a new program or higher level of service, we conclude that this statute does not trigger any right to reimbursement, because the hearing provisions that assertedly exceed federal requirements are merely incidental to fundamental federal due process requirements and the added costs of such procedures are de minimis. For these reasons, we conclude such hearing provisions should be treated, for purposes of ruling upon a request for reimbursement, as part of the nonreimbursable underlying federal mandate and not as a state mandate. Accordingly, we shall reverse the judgment of the Court of Appeal insofar as it compels reimbursement of any costs incurred pursuant to discretionary expulsions.

I

A. Education Code sections 48918 and 48915

We first describe the relevant provisions of two statutes — Education Code sections 48918 and 48915 — pertaining to the expulsion of students from public schools.

Education Code section 48918 specifies the right of a student to an expulsion hearing and sets forth procedures that a school district must follow when conducting such a hearing. (Stats.1990, ch. 1231, § 2, pp. 5136-5139.)²

In identifying the right to a hearing, subdivision (a) of this statute declares that a student is "entitled" to an expulsion hearing within 30 days after the school principal determines that the student has committed an act warranting expulsion.³ In practical effect, this means that whenever a school principal makes such a determination and recommends to the school board that a student be expelled, an expulsion hearing is mandated.⁴

In specifying the substantive and procedural requirements for such an expulsion hearing, Education Code section 48918 sets forth rules and procedures, some of which, the parties agree, codify requirements of federal due process and some of which may exceed those requirements.⁵ These rules and procedures govern, among other things, notice of a hearing and the right to representation by counsel, preparation of findings of fact, notices related to the expulsion and the right of appeal, and preparation of a hearing record. (See § 48918, subds. (a) through former subd. (j) (currently subd. (k).)

The second statute at issue in this matter is Education Code section 48915. Discrete subdivisions of this statute address circumstances in which a principal must recommend to the school board that a student be expelled, and circumstances in which a principal may recommend that a student be expelled.

First, there is what the parties characterize as the "mandatory expulsion provision," Education Code section 48915, former subdivision (b). As it read during the time relevant in this proceeding (mid-1993 through mid-1994), this subdivision (1) compelled a school principal to immediately suspend any student found to be in possession of a firearm at school or at a school activity off school grounds, and (2) mandated a recommendation to the school district governing board that the student be expelled. The provision further required the governing board, upon confirmation of the student's knowing possession of a firearm, either to expel the student or "refer" him or her to an alternative education program housed at a separate school site.⁶ (Compare this former provision with current Ed.Code, § 48915, subds. (c) and (d).)⁷

This provision, as it read at the time relevant here, did not mandate expulsion per se⁸ — but it did require immediate suspension followed by a mandatory expulsion recommendation (and it provided that a student found by the governing board to have possessed a firearm would be removed from the school site by limiting disposition to either expulsion or "referral" to an alternative school). Moreover, as noted above, whenever expulsion is recommended a student has a right to an expulsion hearing. Accordingly, it is appropriate to characterize the former provision as mandating immediate suspension, a recommendation of expulsion, and hence, an expulsion hearing. For convenience, we accept the parties' description of this aspect of Education Code section 48915 as constituting a "mandatory expulsion provision."

The second aspect of Education Code section 48915 relevant here consists of what we shall call the "discretionary expulsion provision." (Id., former subd. (c), subsequently subd. (d), currently subd. (e).) During the period relevant in this proceeding (as well as currently), this subdivision of Education Code section 48915 recognized that a principal possesses discretion to recommend that a student be expelled for specified conduct other than firearm possession (conduct such as damaging or stealing school property or private property, using or selling illicit drugs, receiving stolen property, possessing tobacco or drug paraphernalia, or engaging in disruptive behavior). The former provision (like the current provision) further specified that the school district governing board "may" order a student expelled upon finding that the student, while at school or at a school activity off school grounds, engaged in such conduct.⁹

B. Proceedings under Government Code section 17500 et seq.

Procedures governing the constitutional requirement of reimbursement under article XIII B, section 6, are set forth in Government Code section 17500 et seq. The Commission on State Mandates (Commission) (Gov.Code, § 17525) is charged with the responsibility of hearing and deciding, subject to judicial review by an administrative writ of mandate,...