State Bd. of Education v. Honig

• Decision Date: 18 February 1993
• Docket Number: No. C012467,C012467
• Citation: 16 Cal.Rptr.2d 727,13 Cal.App.4th 720
• Court: California Court of Appeals
• Parties: , 80 Ed. Law Rep. 642 STATE BOARD OF EDUCATION, Petitioner, v. Bill HONIG, as Superintendent, etc., Respondent.

Page 727

16 Cal.Rptr.2d 727

13 Cal.App.4th 720, 80 Ed. Law Rep. 642

STATE BOARD OF EDUCATION, Petitioner, v. Bill HONIG, as Superintendent, etc., Respondent.

No. C012467.

Court of Appeal, Third District, California.

Feb. 18, 1993.

Rehearing Denied March 16, 1993.

Review Denied May 27, 1993.

Zumbrun, Best & Findley, Ronald A. Zumbrun, John H. Findley, Sharon L. Browne, and Meriem L. Hubbard, Sacramento, for petitioner.

Joseph R. Symkowick, Roger D. Wolfertz, Allan H. Keown, Michael E. Hersher, Joanne Lowe and Paul G. Smith, Sacramento, for respondent.

Gray, Cary, Ames & Frye and Paul J. Dostart, San Diego, Kronick, Moskovitz, Tiedemann & Girard, John Bukey, and Donna Matties, Sacramento, Van Bourg, Weinberg, Roger & Rosenfeld and Stewart Weinberg; and James G. Seely, San Francisco as amici curiae on behalf of respondent.

NICHOLSON, Associate Justice.

The California Department of Education (Department) is administered through a State Board of Education (Board), appointed by the Governor and confirmed by the Senate, and an elected Superintendent of Public Instruction (Superintendent). (Cal. Const., art. IX, § 2; Ed.Code, §§ 33000, 33301, 33303.) ¹ The Board is "the governing and policy determining body of the department." (§ 33301, subd. (a).) The Superintendent is vested with all executive and administrative functions. (§ 33301, subd. (b).) Although the statutory division of responsibility for administration of the Department appears clear, its implementation has fostered occasional turf battles between the Board and various Superintendents for more than 70 years. This original proceeding represents the latest skirmish.

The Board seeks a peremptory writ of mandate ordering the Superintendent to implement a series of policies adopted by the Board in September 1990 and April 1991. The Superintendent responds he has voluntarily implemented some of the policies, but argues he is under no clear, present, and ministerial duty to implement any of them.

The policies involve four areas of governance: approval of the Department's program guidelines; appointment of constitutionally authorized deputy and associate superintendents; approval of the Department's proposed budget and continuing oversight of that budget; and appointment of Board staff. ² Also at issue are requests the Superintendent prepare a Department organizational chart consistent with the legal opinion of the Board's special counsel, and process a $150,000 legal services contract to enable the Board to pay independent counsel hired to pursue litigation against the Superintendent.

We conclude the Board is entitled to a writ of mandate directing the Superintendent to (1) implement Policy No. 2 by submitting to the Board his nominations for deputy and associate superintendents under article IX, section 2.1 of the California Constitution; (2) implement Policy No. 5 which concerns the Board's request for additional staff; (3) implement the continuing budget oversight policy relating to the Board's periodic review of performance evaluations for key Department employees; and (4) process the Board's legal services contract in the manner requested by the Board. The petition is denied in all other respects for reasons we shall explain.

HISTORICAL AND PROCEDURAL BACKGROUND

I Historical Perspective

The constitutional and statutory scheme which divides administrative responsibility between the Superintendent and the Board has existed for more than 70 years.

California's first Constitution, enacted in 1849, stated "[t]he legislature shall provide for the election, by the people, of a superintendent of public instruction, who shall hold his office for three years, ..." (Cal. Const. of 1849, art. IX, § 1.) Although provisions relating to the term of office and manner of election have been amended from time to time (Cal. Const. of 1849, art. IX, § 1, as amended in 1862; Cal. Const. of 1879, art. IX, § 2, as amended in 1960, and in 1990 by Prop. 140), the position of Superintendent remains an elective office. (Cal. Const., art. IX, § 2.)

In 1852, the Legislature established the first Board, which consisted of the Governor, Surveyor-General, and the Superintendent. (Stats.1852, ch. 53, art. I, § 1, pp. 117-118; see Ferris, Judge Marvin and the Founding of the California Public School System (1962) p. 80.) The Board advised and supervised the Superintendent on apportionment of state school funds to the counties. (Stats.1852, ch. 53, art. IV, § 1, subd. 5, pp. 122-123.)

Legislation enacted in 1870 changed the composition of the Board to include "the Governor, the Superintendent of Public Instruction, the Principal of the State Normal School, the Superintendent of Public Schools of the City and County of San Francisco, the Superintendent of Common Schools of the respective Counties of Sacramento, Santa Clara, Alameda, Sonoma and San Joaquin, and of two professional teachers, who shall be nominated by the Superintendent of Public Instruction, and elected by and with the advice and consent of said Board; ..." (Stats.1869-1870, ch. 556, § 1, p. 824.)

An 1884 constitutional amendment granted the Board authority to establish a uniform system of textbooks. However, Board members still served "ex officio," that is, by virtue of their positions as Governor, Superintendent, and principals of the normal and common schools. In 1894, the president of the University of California, "and the professor of pedagogy therein" became ex officio members of the Board. (Cal. Const. of 1879, art. IX, § 7, as amended in 1884 and 1894; see also Mem. to Art. IX Com. Members, Const. Revision Com. (Nov. 22, 1966) p. 1.) ³

In 1912, a constitutional amendment abolished the ex officio Board, stating "[t]he Legislature shall provide for the appointment or election of the State Board of Education...." (Cal. Const. of 1879, art. IX, § 7, as amended in 1912.) In 1913, the Legislature amended section 1517 of the Political Code thereby establishing a Board of seven members to be appointed by the Governor to serve four-year terms. (Stats.1913, ch. 328, § 1, p. 659.) It also amended section 1518 of the Political Code to outline the respective duties of the Board and Superintendent: "The superintendent of public instruction shall be secretary of the board. Such secretary shall have charge of all correspondence and keep a record of its proceedings. The superintendent of public instruction shall act as the executive officer of the state board of education. It shall be the duty of the state board of education to determine all questions of policy; it shall be the duty of the superintendent of public instruction to execute, under direction of the board, the policies which have been decided upon, and to direct, under such general rules and regulations as the state board of education may adopt, the work of all assistant superintendents of public instruction, and such other appointees and employees of the board as may be provided by law." (Stats.1913, ch. 328, § 2, pp. 659-660, italics added.)

The Superintendent was also responsible for superintending the schools of the state. (Former Pol.Code, § 1532.) A historian later observed: "The constitutional amendment of 1912 and the legislation of 1913 resulted in a new attitude toward the agency for public education at Sacramento. Previously it had been dominated by the superintendent, and the unofficial term 'Department of Public Instruction' was frequently employed. From 1913 on, the State Board of Education became of increasing importance, and the unofficial term 'Department of Education' was more often employed in speaking of the activities of the public education agency. Previously the board had been a professional ex-officio body advising and assisting the superintendent; now there was a lay body assuming responsibility for a growing number of functions." (Johnson, Development of the Central State Agency for Public Education in California, 1849-1949 (1952) p. 77.)

The practical result of the foregoing constitutional and statutory scheme was that two educational agencies functioned within the state government. Although the Board and Superintendent cooperated effectively for a number of years to expand California's educational services, observers predicted trouble. In 1919, the Blue Bulletin, a publication of the State Department of Education, warned: "The fact that the two state departments of education have in the past succeeded in working together, and that the recent promotion of an officer of the state board to the position of Superintendent of Public Instruction insures the welding together of the two departments for the present, should not lull the people into forgetfulness of the fact that legally we have two more or less distinct state departments. No one can say how soon a change in personnel in these two departments may bring them into conflict. They are both administrative departments and conflict between them would be disastrous to educational leadership in this state." (E.R. Snyder, State Department Reorganization (March 1919) Cal. Blue Bull., p. 2.)

The Legislature also recognized an appointed Board and elected Superintendent were destined for conflict. A special legislative committee on education, chaired by Senator Herbert Jones (Mem. to Art. IX Com. Members, Const. Revision Com., supra, p. 3), reported in 1920: "... that part of the state educational organization represented by the State Board of Education is clearly responsible to the Governor and the Legislature for its acts, while that part represented by the Superintendent of Public Instruction remains independent of both State Board of Education and Governor, and largely independent of the Legislature as well, and may work with the State Board of Education or against it, according to the character of the official elected to the office of Superintendent. [p] ... [p] Still more, an antagonized or antagonistic Superintendent might at some time raise the constitutional question...