Wendz v. Dept. of Education

Filed 7/14/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
MILAGROS AZUCENA WENDZ,
Plaintiff and Appellant,
A162648
v.
CALIFORNIA DEPARTMENT OF (San Francisco County
EDUCATION et al., Super. Ct. No. CPF20517067)
Defendants and Respondents.
The Legislature charged respondent Superintendent of Public
Instruction (Superintendent) with “ensur[ing] effective parental involvement”
in the Migrant Education Program (MEP), the purpose of which is to address
the unique educational needs of migrant children. (Ed. Code, §§ 54440,
54444.2, subd. (a).)1 As part of this mandate, the Superintendent must
establish regional parent advisory councils (RPACs) to consult with local
educational agencies in the planning, operation, and evaluation of migrant
education programs. (§ 54444.2, subd. (a)(1).) In 2019, the Superintendent
adopted regulations concerning the formation and governance of RPACs,
including regulations that could affect the size and makeup of the councils.2
1 All undesignated statutory references are to the Education Code.
In 2020, after the Superintendent adopted the challenged regulations,
2
the Legislature amended section 54444.2. (Stats. 2020, ch. 24, § 60.) As
relevant to this appeal, the amendments made non-substantive changes to
1
Appellant Milagros Azucena Wendz sought to invalidate the
regulations in a petition for a writ of mandate, and she appeals from the trial
court’s denial in part of her petition. Wendz argues the trial court should
have granted her petition in its entirety because the Superintendent’s
adoption of the regulations was outside his statutory authority, as section
54444.2 provides migrant parents the “sole authority” to “decide on the
composition of the council.” (§ 54444.2, subd. (a)(1)(A).) She also argues that
the regulations conflict with the statute because they place impermissible
restrictions on migrant parents’ authority to nominate and elect RPAC
members from the community. She further argues that the necessity of the
regulations to effectuate the purpose of the MEP was not supported by
substantial evidence. Finally, she argues that respondents failed to comply
with several procedural requirements of the Administrative Procedure Act
(APA, Gov. Code, § 11340 et seq.).3
We conclude the Superintendent acted within his authority in adopting
the challenged regulations. We agree, however, that the Superintendent
violated the APA’s notice requirements when he adopted a regulation
prohibiting RPAC members’ use of alternates without adequate notice to the
public. He otherwise complied with the APA in adopting the regulations, and
subdivision (a) of section 54444.2, and therefore we consider the current
version of that subdivision.
3 The Superintendent is the director of respondent California
Department of Education (CDE). (§§ 33301, 33303.) Throughout her opening
brief, Wendz uses “SPI,” “Superintendent,” and “respondents”
interchangeably when arguing that the regulations are invalid. The record
shows that the Superintendent adopted the regulations pursuant to his
authority under section 54444.2, while CDE staff assisted him in the
rulemaking proceeding. Thus, for the sake of consistency, we refer to the
Superintendent as the party who proposed and adopted the regulations.
2
the necessity of the regulations is supported by substantial evidence. We
therefore conclude the regulations are valid except for the prohibition on
alternates and the portions of the regulations the trial court invalidated, and
the petition for a writ of mandate is granted only to the extent it seeks to
compel respondents to refrain from enforcing those portions of the
regulations.
I. BACKGROUND
A. The Migrant Education Act
In 1976, the Legislature created the MEP by enacting the Migrant
Education Act (the Act) in recognition that the unique problems facing
migrant children in the state educational system “are of such magnitude and
severity that local school districts have been unable to solve them with the
resources normally available. It is, therefore, necessary for the state to aid
local school districts through regional coordinating offices and the provision
of special programs of educational and related services for these children.”
(§ 54440, subd. (b).)
Under the Act, the State Board of Education must adopt a master plan
for services to migrant children, which is to include instructional activities
designed to identify and address migrant children’s academic deficiencies,
health and welfare services, and supportive services for migrant families.
(§ 54442, subds. (a), (b), (d).) The plan requires “[t]he active involvement of
parents, teachers, and community representatives in the local
implementation of migrant education.” (§ 54442, subd. (f).) The Act charges
the Superintendent with implementing the plan adopted by the State Board
of Education (§ 54444), and authorizes the State Board of Education to adopt
rules and regulations “necessary to implement the provisions of this article”
(§ 54445).
3
B. Regional Migrant Parent Advisory Councils
In 1981, the Legislature amended the Act, adding several sections. The
purpose of the amendments was to provide state standards for migrant
education “in the absence of regulations by the State Board of
Education . . . .”
As relevant to this appeal, one of the sections added by the
amendments is section 54444.2, which provides that “[t]he Superintendent
shall take the steps necessary to ensure effective parental involvement
throughout the state migrant education program . . . .” (§ 54444.2, subd. (a).)
Those steps “shall include, but need not be limited to,” the adoption of “rules
and regulations requiring each operating agency receiving migrant education
funds or services to actively solicit parental involvement in the planning,
operation, and evaluation of its programs through the establishment of, and
consultation with, a parent advisory council.” (§ 54444.2, subd. (a)(1).) An
“operating agency” means “a local educational agency operating under a
subgrant of state migrant education funding, or a public or private nonprofit
agency . . . .” (§ 54441, subd. (e).) These parent advisory councils are what
the parties have termed regional parent advisory councils (or RPACs).
Subdivision (a)(2) requires the Superintendent to separately establish a
statewide parent advisory council (or SPAC). (§ 54444.2, subd. (a)(2).)
Subdivision (a)(1)(A) of section 54444.2 provides standards for the
formation of regional parent advisory councils: “The membership of each
parent advisory council shall be composed of members who are
knowledgeable of the needs of migrant children, and shall be elected by the
parents of migrant children enrolled in the operating agency’s programs. The
composition of the council shall be determined by the parents at a general
meeting to which all parents of pupils enrolled in the migrant program shall
4
be invited. Parents shall be informed, in a language they understand, that
the parents have the sole authority to decide on the composition of the
council. All parent candidates for the council shall be nominated by parents;
nonparent candidates shall be nominated by the groups they represent:
teachers by teachers, administrators by administrators, other school
personnel by other school personnel, and pupils by pupils. All other
community candidates shall be nominated by the parents.” (§ 54444.2, subd.
(a)(1)(A).) That section further provides that “[a]t least two-thirds of the
members of each parent advisory council shall be the parents of migrant
children.” (§ 54444.2, subd. (a)(1)(B).)
C. The Regulations Promulgated by the Superintendent
In 2018, the Superintendent began drafting regulations “to promote the
orderly and efficient operation of the [regional parent advisory councils]
throughout the State.” Over a period of almost 1 year, the Superintendent
and CDE staff drafted proposed regulations, received public comments, and
held a hearing on the proposed regulations. In November 2019, the
Superintendent adopted regulations. Wendz challenges several of those
regulations on the ground that they undermine migrant parents’ authority
under subdivision (a)(1)(A) of section 54444.2 to determine the “composition”
of regional parent advisory councils and to nominate and elect community
members.
1. Nominations of Community Members
California Code of Regulations, title 5, section 12013 delineates the
nomination process for community RPAC members. (Cal. Code Regs., tit. 5,
§ 12013, subd. (a).) The specific parts of the regulation that Wendz
challenges are the provisions stating that individual council members “may”
nominate eligible community members (Cal. Code Regs., tit. 5, § 12013, subd.
5
(a)) and that a candidate’s name shall be withdrawn from nomination if the
migrant region determines that a candidate is ineligible (Cal. Code Regs.,
tit. 5, § 12013, subd. (a)(7)).
2. Member Term Limits
The challenged portions of California Code of Regulations, title 5,
section 12014, subdivision (a), provide that “[a] term of office for eligible
parent members shall not exceed two years[,]” and an eligible parent member
cannot be elected for more than two terms. (Cal. Code Regs., tit. 5, § 12014,
subd. (a).) Similarly, a term of office for community members cannot exceed
one year, and community members are limited to two terms. (Cal. Code
Regs., tit. 5, § 12014, subd. (b).)
3. Size and Makeup of Regional Councils
California Code of Regulations, title 5, section 12011, provides that,
“The RPAC shall be comprised of up to 15 eligible parent members with no
alternate members.” (Cal. Code Regs., tit. 5, § 12011, subd. (a).) That section
further provides that regional councils “may include up to three optional
community members . . . .” (Cal. Code Regs., tit. 5, § 12011, subds. (b), (c).)
4. Community Member Candidate Qualifications
California Code of Regulations, title 5, section 12010 defines “eligible
community member” as a person who “is knowledgeable about the needs of
migrant children, and is either an eligible migrant child or a professional
working in the field of education and social and health services . . . .” (Cal.
Code Regs., tit. 5, § 12010, subd. (b)(1).) It further provides that “eligible
community member” excludes parent members and employees “of a Migrant
Education Program at the district, county, or state level,” or employees of the
CDE. (Cal. Code Regs., tit. 5, § 12010, subd. (b)(2), (3).)
6
5. Disqualifying Regional Council Members
Finally, Wendz challenges the provisions in California Code of
Regulations, title 5, section 12015, that allows for the disqualification of
RPAC members under certain circumstances. That regulation authorizes the
County Superintendent to terminate a member from the regional council on
specified grounds, including “good cause[,]” which includes “but is not limited
to, severe or repetitive conduct that is abusive to other persons or disruptive
to the meetings or other official business of the RPAC.” (Cal. Code Regs., tit.
5, § 12015, subd. (a)(2).) The County Superintendent may also terminate
members that do not attend two meetings in a “given term” or for “[e]ngaging
in inappropriate conduct that discredits the RPAC or the County
Superintendent.” (Cal. Code Regs., tit. 5, § 12015, subd. (a)(1), (3).)
D. The Mandate Proceedings
In March 2020, Wendz filed a petition for a writ of mandate and
complaint for declaratory and injunctive relief against respondents, alleging
that the above regulations were beyond the scope of authority conferred on
the Superintendent by the Legislature and “place[d] invalid restrictions on
the criteria for membership, [and on] the composition of and the manner by
which the Regional Parent Advisory Council members are nominated or
elected,” in conflict with the mandate in section 54444.2, subdivision (a)(1)(A)
that “the parents have the sole authority to decide on the composition of the
council . . . .” The petition additionally alleged that respondents’
determination that the regulations were “reasonably necessary” to effectuate
the purpose of the Act was not supported by substantial evidence. The
petition further alleged that California Code of Regulations, title 5, section
12011, subdivision (a) violated the APA because the Superintendent added
the prohibition on members’ use of alternates after the initial comment
7
period had ended without providing an additional 45-days’ notice, despite the
prohibition constituting a substantive change to the regulation. Finally, the
petition alleged that respondents failed to comply with the APA because they
did not describe reasonable alternatives to the regulations in their initial
statement of reasons.
In November 2020, Wendz moved for entry of writ of mandate,
asserting the same arguments as in her petition for writ of mandate. Wendz
further argued that respondents violated the APA by failing to provide
supporting information in their final statement of reasons regarding the lack
of reasonable alternatives.
In opposition, respondents argued that the regulations fell within the
scope of authority granted by the Legislature to the Superintendent, because
section 54444.2, subdivision (a), charges the Superintendent with taking “the
steps necessary to ensure effective parental involvement[,]” and the
regulations seek to increase parent participation. Respondents further
argued that none of the regulations were inconsistent with the Act, as they
preserved migrant parents’ authority to determine the composition of
regional councils. Respondents also argued that the administrative record
and judicially-noticeable evidence supported respondents’ promulgation of
the regulations as reasonably necessary to ensure effective parental
involvement.
In February 2021, after hearing argument and taking the matter under
submission, the court granted in part and denied in part the petition for writ
of mandate. The court concluded that the Superintendent had the authority
to adopt rules and regulations regarding RPACs under section 54444.2, and
that the statute provided parents the authority to elect members and “no
more.” The court invalidated subdivision (c) of California Code of
8
Regulations, title 5, section 12014 and the phrase “[t]o the extent possible” in
subdivision (d) of California Code of Regulations, title 5, section 12019 as
inconsistent with the Act but concluded that the rest of the challenged
regulations were consistent with the Act.4 Finally, the court concluded that
respondents did not violate the APA in adopting the regulations. The court
therefore rescinded subdivision (c) of California Code of Regulations, title 5,
section 12014 and the phrase “[t]o the extent possible” in subdivision (d) of
California Code of Regulations, title 5, section 12019, and in all other
respects, it denied Wendz’s application for a writ of mandate and entered
judgment on her complaint in favor of respondents.
This appeal followed.
II. DISCUSSION
A. The Superintendent Has the Authority to Adopt the Regulations.
“Administrative agencies have only the powers conferred on them,
either expressly or impliedly, by the Constitution or by statute, and
administrative actions exceeding those powers are void.” (Terhune v.
Superior Court (1998) 65 Cal.App.4th 864, 872.) “If the court determines that
a challenged administrative action was not authorized by or is inconsistent
with acts of the Legislature, that action is void.” (Id. at p. 873.) Here, Wendz
argues that the Superintendent lacked authority to adopt the challenged
regulations, and that the regulations conflict with the Act because section
54444.2, subdivision (a)(1)(A), gave migrant parents the “sole authority” to
determine the “composition” of the councils. She additionally argues that the
4 Neither party challenges on appeal the trial court’s invalidation of
subdivision (c) of California Code of Regulations, title 5, section 12014 and
the phrase “[t]o the extent possible” in subdivision (d) of California Code of
Regulations, title 5, section 12019. We therefore presume the trial court was
correct in invalidating those portions of the regulations.
9
regulations conflict with certain provisions of section 54444.2, subdivision
(a)(1)(A), that deal specifically with community members. We address these
arguments in turn.
1. Standard of Review
Where, as here, a party challenges a regulation on the ground that it
conflicts with the governing statute or exceeds the lawmaking authority
delegated by the Legislature, “the issue of statutory construction is a
question of law on which a court exercises independent judgment.” (Western
States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 415–
416.) “A court does not, in other words, defer to an agency’s view when
deciding whether a regulation lies within the scope of the authority delegated
by the Legislature.” (Yamaha Corp. of America v. State Bd. of Equalization
(1998) 19 Cal.4th 1, 11, fn. 4.) “The court, not the agency, has ‘final
responsibility for the interpretation of the law’ under which the regulation
was issued.” (Ibid.)
2. The Regulations Are a Valid Exercise of the Superintendent’s
Authority to “Fill Up the Details” of Section 54444.2.
The creation of an agency’s regulatory power is a delegation of
legislative authority. “Essentials of the legislative function include the
determination and formulation of legislative policy.” (State Bd. of Education
v. Honig (1993) 13 Cal.App.4th 720, 746–747.) “ ‘The Legislature may, after
declaring a policy and fixing a primary standard, confer upon executive or
administrative officers the “power to fill up the details” by prescribing
administrative rules and regulations to promote the purposes of the
legislation and to carry it into effect . . . .’ ” (Id. at p. 747.) Where an agency
exercises discretion explicitly conferred on it, it is presumed to act within
10
legislative intent. (California Chamber of Commerce v. State Air Resources
Bd. (2017) 10 Cal.App.5th 604, 620.)
To determine whether the Superintendent had the authority to adopt
the challenged regulations, we begin with the Legislature’s express grant of
authority to him in section 54444.2: “The Superintendent shall take the
steps necessary to ensure effective parental involvement throughout the state
migrant education program . . . .” (§ 54444.2, subd. (a).) The broad grant of
authority to the Superintendent to “take the steps necessary” and the
generality of the legislative goal to “ensure effective parental involvement” in
the MEP show that the Legislature has deferred to the Superintendent’s
expertise and granted him considerable discretion to determine what steps
are necessary to accomplish that goal. (See California Chamber of Commerce
v. State Air Resources Bd., supra, 10 Cal.App.5th at p. 622 [holding that
because the statutory scheme only “broadly set forth its goals[,] . . . [the]
Legislature obviously intended the program to be a creature of the Board”];
Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 656 [holding that
statutes provided the commissioner with “broad discretion” to determine
what reasonable rules and regulations in the area of credit insurance are
necessary to promote the public welfare].)
Despite the Superintendent’s broad discretionary power under section
54444.2, Wendz points out that the statute does not expressly grant him the
authority to adopt regulations pertaining to RPAC member qualifications and
the size of the councils and their overall structure; the only explicit grant of
regulatory authority is that found in subdivision (a)(1), which directs the
Superintendent to “adopt rules and regulations requiring each operating
agency . . . to actively solicit parental involvement . . . through the
establishment of, and consultation with, a parent advisory council [or
11
RPAC].” (§ 54444.2, subd. (a)(1)). Wendz appears to suggest that because
this is the sole grant of regulatory authority in the statute, the
Superintendent only has the regulatory power to ensure that local agencies
establish and consult with RPACs and not the authority to adopt regulations
concerning “the makeup of those councils, including how large they are or
who can serve on them.” But “ ‘[a]n administrative agency is not limited to
the exact provisions of a statute in adopting regulations to enforce its
mandate. “[T]he absence of any specific [statutory] provisions regarding the
regulation of [an issue] does not mean that such a regulation exceeds
statutory authority. ...” [Citations.] [The administrative agency] is authorized
to “ ‘fill up the details’ ” of the statutory scheme. [Citation.]’ [Citations.]”
(Batt v. City and County of San Francisco (2010) 184 Cal.App.4th 163, 171.)
Moreover, “ ‘where power is given to perform an act, the authority to employ
all necessary means to accomplish the end is always one of the implications of
the law.’ ” (Manteca Union High School Dist. v. City of Stockton (1961) 197
Cal.App.2d 750, 755.) Here, in addition to section 54444.2’s broad grant of
authority to the Superintendent, the statute’s language and its context
support a conclusion that the Superintendent’s power to regulate the RPACs
is not limited to ensuring local agencies establish and consult with RPACs,
and instead extends to the formation and structure of the councils.
Subdivision (a)(1) of section 54444.2 is part of a non-exhaustive list of
steps the Superintendent is required to take to fulfill his mandate: “the steps
necessary to ensure effective parental involvement throughout the state
migrant education program . . . shall include, but need not be limited to, all of
the following” steps set forth in five enumerated subparts, including
subdivision (a)(1). (§ 54444.2, subd. (a), italics added; see Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1389, superseded
12
by statute on another issue [the phrase “shall include, but need not be limited
to” is a “phrase of enlargement”].) Based on the plain language in subdivision
(a), the Legislature intended for the subparts under subdivision (a) to
represent steps the Superintendent is required to take to ensure effective
parental involvement, but not to limit the Superintendent’s discretion to take
other steps he deems necessary to ensure effective parental involvement,
including adopting other rules and regulations. Nothing in the legislative
history of the Act indicates otherwise. Had the Legislature intended to
establish an exhaustive list of the steps the Superintendent is permitted to
take to ensure effective parental involvement in the MEP or to limit the
Superintendent’s regulatory power, it could have easily done so.
Section 54444.2 does not otherwise limit the Superintendent’s
discretion to supplement its directives, including those pertaining to RPACs.
Subdivision (a)(1) is divided into subdivision (a)(1)(A) and (B), which sets
forth certain directives concerning the formation and structure of RPACs,
including some limits on who can nominate candidates and elect members.
(§ 54444.2, subd. (a)(1)(A), (B).) But section 54444.2 ultimately provides few
details on those matters, and there is no indication in the statute that the
Legislature determined those statutory directives were sufficient on their
own to ensure effective parental involvement in the RPACs.
In sum, this case involves a statutory scheme that sets forth a general
goal and broadly empowers the Superintendent to take whatever steps are
necessary to achieve that goal, and within the same subdivision, identifies
RPACs as one way to accomplish that goal and certain requirements for
RPACs. (§ 54444.2, subd. (a).) Given this hierarchal organization and the
statutory language previously discussed, it is clear to us that the
Superintendent’s power to “fill up the details” of the statute through adoption
13
of regulations that supplement the statutory directives pertaining to RPACs
is an “ ‘additional power[] . . . necessary for the due and efficient
administration of powers expressly granted’ ” by section 54444.2 or “ ‘fairly . .
. implied from the [provision] granting the powers.’ ” (Leslie Salt Co. v. San
Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 617.)
The Superintendent has properly exercised this power by adopting the
challenged regulations, as they clarify the nomination and election process
for RPACs and specify additional criteria for their formation and structure,
matters that could impact the effectiveness of parental involvement in the
RPACs. The lack of specific statutory provisions on many of the issues
addressed by the Superintendent’s regulations—including member term
limits and member disqualification—does not mean that regulations as to
such issues exceed his statutory authority, but only that the Legislature did
not itself choose to determine the issues and instead deferred to and relied
upon the expertise of the Superintendent. (See Credit Ins. Gen. Agents Assn.
v. Payne, supra, 16 Cal.3d at p. 656 [“Courts have long recognized that the
Legislature may elect to defer to and rely upon the expertise of
administrative agencies”].)
Wendz appears to acknowledge the Superintendent’s broad implied
powers under section 54444.2. Her primary argument on appeal is that the
Superintendent’s implicit authority does not “trump” the express authority
the Legislature granted migrant parents under the statute. However, as we
find below, the regulations are consistent with the statute.
3. The Regulations Are Consistent with Parents’ Authority to
Determine the “Composition” of the RPACs
Subdivision (a)(1)(A) of section 54444.2 provides in full: “The
membership of each parent advisory council shall be composed of members
14
who are knowledgeable of the needs of migrant children, and shall be elected
by the parents of migrant children enrolled in the operating agency’s
programs. The composition of the council shall be determined by the parents
at a general meeting to which all parents of pupils enrolled in the migrant
program shall be invited. Parents shall be informed, in a language they
understand, that the parents have the sole authority to decide on the
composition of the council. All parent candidates for the council shall be
nominated by parents; nonparent candidates shall be nominated by the
groups they represent: teachers by teachers, administrators by
administrators, other school personnel by other school personnel, and pupils
by pupils. All other community candidates shall be nominated by the parents.
Each parent advisory council shall hold meetings on a regular basis during
the operation of the regular program, but not less than six times during the
year.” (§ 54444.2, subd. (a)(1)(A), italics added.)
Wendz contends that the emphasized language in that paragraph
shows that the Legislature vested exclusive authority in migrant parents to
determine the composition of RPACs. She argues that the terms
“determine[]” and “decide on the composition” refer to “the setting of
qualifications for serving on the council, the size of the council, the
breakdown of the council, etc.” Thus, according to Wendz, the regulations
adopted by the Superintendent that place a limit on the number of parent
and community RPAC members, that impose member term limits, that
provide a definition of “eligible community member,” and that specify
grounds for member disqualification conflict with section 54444.2 because
they restrict parents’ exclusive authority to determine the composition of the
councils. In response, respondents define the terms narrowly, arguing that
as used in section 54444.2, they refer only to parents’ authority to elect RPAC
15
members.
“A regulation cannot restrict or enlarge the scope of a statute.” (Home
Depot, U.S.A., Inc. v. Contractors’ State License Bd. (1996) 41 Cal.App.4th
1592, 1600, modified by statute on other grounds as stated in Denver D.
Darling, Inc. v. Controlled Environment Const., Inc. (2001) 89 Cal.App.4th
1221, 1231, fn. 4.) It is therefore incumbent on us to begin by interpreting
the phrase “decide on the composition” as it is used in section 54444.2,
subdivision (a)(1)(A). (Angelucci v. Century Supper Club (2007) 41 Cal.4th
160, 168 [“In interpreting a statute, we first consider its words, giving them
their ordinary meaning and construing them in a manner consistent with
their context and the apparent purpose of the legislation”].) If the terms of
the statute are unambiguous, we presume the lawmakers meant what they
said, and the plain meaning of the language governs. (Day v. City of Fontana
(2001) 25 Cal.4th 268, 272.)
a. Parents’ Authority to Determine the “Composition” of RPACs
Is Limited to Electing Members
The Act does not define “composition” or “decide on the composition.”
“ ‘When a term goes undefined in a statute, we give the term its ordinary
meaning.’ ” (De Vries v. Regents of University of California (2016) 6
Cal.App.5th 574, 590–591; see Arnall v. Superior Court (2010) 190
Cal.App.4th 360, 369 [“we look first to the term’s ‘plain meaning’ for
guidance” when the statute does not define the term].) In discerning a term’s
ordinary meaning, courts regularly turn to general and legal dictionaries.
(See Outfitter Properties, LLC v. Wildlife Conservation Bd. (2012) 207
Cal.App.4th 237, 244 [“[w]e use the ordinary dictionary meaning of terms
when terms are not defined in the statute”]; E.W. Bliss Co. v. Superior Court
(1989) 210 Cal.App.3d 1254, 1258, fn. 2 [“[a] dictionary is a proper source to
16
determine the usual and ordinary meaning of a word or phrase in a
statute”].)
When viewed in isolation, the word “composition” is reasonably
susceptible to both parties’ interpretation. Dictionary definitions of
“composition” show that it can mean “the general makeup” of something
(Webster’s 9th New Collegiate Dict. (1989) pp. 270, 719) or “the nature of
something’s ingredients or constituents; the way in which a whole or mixture
is made up.” (Encyclopedia.com https://www.encyclopedia.com/literature-and-
arts/art-and-architecture/art-
general/composition#:~:text=com%C2%B7po%C2%B7si%C2%B7tion,the%20s
ocial%20composition%20of%20villages. [as of July 12, 2023].) Thus,
determining the composition of the council may mean something more than
simply electing members. (See Webster’s 9th New Collegiate Dict. (1989) p.
400 [defining “elect” as “to select by vote for an office, position, or
membership”].) Under a broad definition of “composition,” deciding on the
composition of a council can reasonably include determining the size of the
council and the characteristics of the members that will form the council. On
the other hand, “composition” is capable of a narrower definition. (See The
American Heritage Dictionary
https://www.ahdictionary.com/word/search.html?q=compositions [as of July
12, 2023].) [defining “composition” as “[t]he combining of distinct parts or
elements to form a whole”].) Thus, when “composition” is narrowly defined,
determining or deciding on the composition of the council may refer to the act
of selecting the individual members that will form the council.
But when viewing that language in the context of the entire subdivision
(a)(1)(A), as we must, Wendz’s construction fails. (Jarman v. HCR
ManorCare, Inc. (2020) 10 Cal.5th 375, 381 [“We do not examine that
17
language in isolation, but in the context of the statutory framework as a
whole in order to determine its scope and purpose and to harmonize the
various parts of the enactment”].)
The subdivision begins with the sentence, “The membership of each
parent advisory council shall be composed of members knowledgeable of the
needs of migrant children, and shall be elected by the parents of migrant
children . . . .” (§ 54444.2, subd. (a)(1)(A), italics added.) The plain meaning
of the term “composed” as used in the first clause establishes that the RPAC
membership will be formed from members who are knowledgeable of the
needs of migrant children. (See Webster’s 9th New Collegiate Dict. (1989) p.
270 [defining “compose” as “to form by putting together”]; Dictionary.com
https://www.dictionary.com/browse/compose [as of July 12, 2023] [“to make or
form by combining things, parts, or elements”].) In juxtaposing that clause
with the second clause requiring that the “membership” be “elected” by
parents, the Legislature appears to have intended the first sentence to
provide parents the right to compose the council by electing eligible members.
The second sentence states that “[t]he composition of the council shall
be determined by the parents at a general meeting to which all parents . . .
shall be invited.” (§ 54444.2, subd. (a)(1)(A).) Because the preceding
sentence establishes that parents are to elect RPAC members, the terms
“determine[]” the “composition” as used in the second sentence clearly refer to
that authority. Thus, the second sentence merely specifies that parents are
to exercise their election power at a general meeting. The Legislature’s use of
the term “composition” in this sentence and of “composed of” in the first
sentence further supports such a construction. “ ‘[U]nless a contrary intent
appears,’ we presume the Legislature intended that we accord the same
meaning to similar phrases.” (Scottsdale Ins. Co. v. State Farm Automobile
18
Ins. Co. (2005) 130 Cal.App.4th 890, 899 [holding that “operated by” and
“operation” have the same meaning in Insurance Code section 11580.1,
subdivision (d)(1)].)
Similarly, the third sentence, when read in context, provides a directive
for the general meeting referenced in the prior sentence: “Parents shall be
informed, in a language they understand, that the parents have the sole
authority to decide on the composition of the council.” (§ 54444.2, subd.
(a)(1)(A), italics added.) In other words, parents are to be informed that they
alone have the power to elect RPAC members at the general meeting.
The next two sentences in subdivision (a)(1)(A) further support a
narrow reading of “composition,” as they impose limitations on who can be
nominated for election to the RPACs, and thus also concern the election
process. (§ 54444.2, subd. (a)(1)(A).)
In sum, the first five sentences of subdivision (a)(1)(A), when read
together, all concern the election of RPAC members, and not the overall
structure of RPACs. Wendz’s broad interpretation of the second and third
sentences would require us to ignore the immediately preceding and following
sentences, which we cannot do.
Moreover, the Legislature used the phrase “sole authority” without
qualification in subdivision (a)(1)(A), while at the same time listing certain
criteria for who can serve as a member and the overall makeup of the council
(e.g., members “shall be knowledgeable of the needs of migrant children,” at
least two-thirds of the members of the RPACs “shall be” migrant parents, and
nonparent groups shall nominate candidates from their respective groups). (§
54444.2, subd. (a)(1)(A).) This suggests that the Legislature intended to
exclude from migrant parents’ “sole” authority the power to set member
qualifications and to determine the categories and breakdown of membership.
19
If the Legislature intended to grant migrant parents the exclusive authority
to determine those matters beyond the minimum requirements set forth in
subdivision (a)(1)(A) of section 54444.2, it could have so specified. (See, e.g., §
69525, subd. (a) [providing that one member of the board shall be an
employee and one member shall be a student, and that the “commission shall
determine the composition of the remainder of the board of directors,
including both the size and categories of membership of the board,” italics
added]; see City of Oakland v. Public Employees’ Retirement System (2002) 95
Cal.App.4th 29, 50–51 [holding that there was no limitation period applicable
to administrative reclassification proceedings under the Public Employees’
Retirement Law, because other statutes “demonstrate the Legislature knows
how to draft time limits applicable to specific types of cases when it wants
to”].)
Finally, and perhaps most fundamentally, Wendz’s construction
conflicts with the purpose of the statute “to ensure effective parental
involvement” in the MEP. (§ 54444.2, subd. (a), italics added.) “ ‘A statute
“will not be given an interpretation in conflict with its clear purpose, and . . .
general words used therein will be given a restricted meaning when reason
and justice require it, rather than a literal meaning which would lead to an
unjust and absurd consequence.” ’ ” (People v. Bratis (1977) 73 Cal.App.3d
751, 757.) To accept her interpretation would mean that no matter how
inefficient or exclusionary RPACs might become, the Superintendent would
be powerless to take regulatory action to fulfill his statutory mandate to
“ensure effective parental involvement through the state migrant education
program.” (§ 54444.2, subd. (a).) That is not a sound construction of the
statute. In contrast, an interpretation that “decid[ing] on” or
20
“determine[ing]” the “composition” is stated in the alternative to “elect” would
preserve the Superintendent’s ability to fulfill his mandate.5
In reaching that determination, we achieve harmony between the
various parts of section 54444.2. Every phrase and word—including “sole
authority”—serves a function. And the result of our holding accomplishes the
intended purpose of the Legislature that the Superintendent discharge his
duty to ensure effective parental involvement in the MEP.
b. Legislative History
Wendz argues that the legislative history of the Act supports her
interpretation of the term “composition.” She specifically points out that in
5 Wendz argues that this interpretation ignores the distinction the
Legislature made between subdivision (a)(1)(A) of section 54444.2—which
governs RPACs—and subdivision (a)(2)—which governs the state parent
advisory council. The latter subdivision also provides parents the authority
to elect members to the state parent advisory council but does not include
similar language to that in the second and third sentences in subdivision
(a)(1)(A) that parents are to determine the composition of the council at a
general meeting and that they are to be informed of their “sole authority” to
decide on the composition. (§ 54444.2, subd. (a)(1)(A), (2).) According to
Wendz, this omission from subdivision (a)(2) of section 54444.2 shows that
the Legislature intended to define “elect” and “decide on the composition”
differently. However, subdivision (a)(2) of section 54444.2 grants only
parents the authority to elect and nominate members for the state parent
advisory council, while subdivision (a)(1)(A) authorizes nonparent groups to
nominate candidates for the RPACs. (§ 54444.2, subd. (a)(1)(A), & (2).) The
language that nonparent groups have the authority to nominate candidates
from their respective groups immediately follows the directive that parents
are to be informed of their “sole authority” to “decide on the composition of
the council.” That contrast and the distinctions between subdivisions
(a)(1)(A) and (a)(2) of section 54444.2 support a construction that the second
and third sentences in subdivision (a)(1)(A) are intended to clarify the role of
parents in electing members to the RPACs.
21
the penultimate amendment to Assembly Bill No. 1384 (1981–1982 Reg.
Sess.) (Assembly Bill 1382), the Legislature added the second and third
sentences to subdivision (a)(1)(A) of section 54444.2 without adding similar
language to subdivision (a)(2) pertaining to the statewide parent advisory
council. Having independently reviewed that legislative history, we find that
the legislative history does not clearly indicate an intent to define
“composition” broadly to include member qualifications and the size and
breakdown of RPACs. We therefore adhere to the interpretation dictated by
contextual considerations and the apparent purpose of the statute.
“We rely on the legislative history of an ambiguous statute as
dispositive only when that history is itself unambiguous.” (Medical Board v.
Superior Court (2003) 111 Cal.App.4th 163, 179.) “The members of the
Legislature have no opportunity to disapprove legislative history, and the
Governor has no chance to veto it. Legislative history directly represents only
the views of the few actors in the legislative process, including lobbyists and
committee staff people, who are intimately involved with particular
legislation.” (J.A. Jones Construction Co. v. Superior Court (1994) 27
Cal.App.4th 1568, 1577–1578.) Only “[a] clear statement of intent allows a
court to reasonably indulge the inference that the individual members of the
Legislature may have given at least a little thought to the statement before
voting on the bill.” (Id. at p. 1579.)
Assembly Bill 1384, as originally proposed in March 1981, did not
include section 54444.2 or any similar provision. But the bill was amended
the following month to add the mandate that the Superintendent is to “take
the steps necessary” to ensure “effective parental involvement” in the MEP,
which included establishing RPACs. In that version of the bill, the only
requirements for RPACs was that the “membership of each parent advisory
22
council shall be comprised of members who are knowledgeable of the needs of
migrant children and shall be elected” by migrant parents, and that “[a]t
least 75 percent of the members” of the RPACs “shall be the parents of
migrant children.” The bill also added language requiring the
Superintendent to establish a statewide parent advisory council with the
same requirements.
In early August 1981, the Legislature amended Assembly Bill 1382 to
state, for both the RPACs and the statewide parent advisory council, that the
members shall be “nominated and” elected by migrant parents. At the end of
the month, however, the Legislature deleted the language “nominated and” in
the paragraph regarding RPACs and added what would become the second
and third sentences of subdivision (a)(1)(A) of section 54444.2 (i.e., “The
composition of the council shall be determined by the parents at a general
meeting to which all parents of pupils enrolled in the migrant program shall
be invited. Parents shall be informed . . . that the parents have the sole
authority to decide on the composition of the council”). The Legislature also
added language providing nonparent groups nominating power over the
RPACs. The Legislature did not remove “nominated and” from the
paragraph concerning the state parent advisory council, meaning that
migrant parents alone had the authority to nominate and elect members to
the statewide parent advisory council.
Wendz argues that the late August 1981 amendments show that the
Legislature “added a new guarantee for regional councils” in addition to
providing migrant parents election power. But the amendments alone do not
provide a “clear statement of intent” to grant migrant parents additional
authority, as they do not define the scope of the terms “determine[]” or
“decide on the composition.” Given the timing and substance of the
23
amendments—the Legislature added the “[p]arents shall be informed . . . that
the parents have the sole authority” language at the same time it added
language providing nonparent groups the right to nominate candidates for
the RPACs—we could just as easily infer that the Legislature intended to
ensure that parents were aware that they alone have the authority to elect
RPAC members.
Wendz points to nothing else in the statute’s legislative history
supporting her interpretation of section 54444.2. In our independent review
of that history, we found only a few references to section 54444.2, and they
shed little light on the correct interpretation of the terms “determine[]” or
“decide on the composition” as used in the statute. The Legislative Counsel’s
Digest of Assembly Bill 1382 stated that the first amendment to Assembly
Bill 1382 “would require the superintendent to take the steps necessary to
assure effective parental involvement throughout the state migrant
education program, as specified, including the requirement that parent
advisory councils be established and consulted by the operating agencies and
at the state level in a specified manner.” The Legislative Counsel’s Digest
characterized subsequent amendments using the same language.
Similarly, the analyses of various versions of the bill prepared by the
staffs of the Ways and Means Committee and the Subcommittee on
Educational Reform generally state that the bill would require the
Superintendent to take specified steps to establish regional parent advisory
councils.
A document prepared by the Assembly Office of Research and
introduced in the Senate, entitled “Concurrence in Senate Amendments,”
more specifically describes the provisions of section 54444.2 at issue. It
states that the amendments to Assembly Bill 1382 “[s]pecify the composition
24
and selection process of parent advisory councils, further specify that at least
66% of the members of each advisory council . . . must be parents of migrant
children . . . [and]. . .[¶]. . . [s]pecify that the composition of State Parent
Advisory Council must be at least 2/3 parents of migrant children.” Although
the author uses the term “composition” to refer to one of the criteria for the
makeup of the councils, this does not constitute a “ ‘clear statement of intent’
” by the Legislature to provide migrant parents the sole authority to
determine the overall structure of the RPACs, as the author is not purporting
to interpret the term as used in the statute. (See Medical Board v. Superior
Court, supra, 111 Cal.App.4th at p. 179; J.A. Jones Construction Co. v.
Superior Court, supra, 27 Cal.App.4th at p. 1583 [statements in legislative
history were “equivocal” and did “not qualify as a clear statement” of
legislative intent].) Moreover, considering the clear purpose of the statute to
ensure effective parental involvement in the MEP and the resulting statutory
analysis discussed above, we decline to find that this passing reference to the
“composition” of the parent advisory councils requires a construction of
subdivision (a)(1)(A) of section 54444.2 as providing migrant parents broad
authority to decide the makeup and size of the councils.
We are therefore left with no clear indication of the intent behind the
amendments to section 54444.2 ultimately enacted.6 Because the legislative
6 The case relied on by Wendz—People v. Watie (2002) 100 Cal.App.4th
866—is distinguishable. There, the Third District construed former Penal
Code section 12022.53 (Watie, at p. 884), which provides sentence
enhancements for persons convicted of enumerated felonies who use a
firearm in the commission of the crime. (Former Pen. Code, § 12022.53,
subds. (b), (c), (d), added by Stats. 1998, ch. 936, § 19.5.) The defendant
argued that the life term enhancement in former Penal Code section
12022.53 did not apply in cases where the shooting “ ‘was done in self-
defense, perfect or imperfect.’ ” (Watie, at p. 883.) The Third District
25
history is itself ambiguous, it is not useful in construing section 54444.2, and
it offers us no reason to depart from the interpretation of section 54444.2
suggested by contextual considerations and the purpose of the statute.
c. Other Statutes that Use “Composition”
Wendz next argues that the use of “composition” in sections 69525,
subdivision (a), and 99202, subdivision (b), supports her interpretation of
section 54444.2. Section 69525, subdivision (a), provides that the auxiliary
organization established by the Student Aid Commission (§ 69522, subd. (a)),
“shall be governed by a board of directors nominated and appointed by the
commission. . . . The commission shall determine the composition of the
remainder of the board of directors, including both the size and categories of
membership of the board.” (§ 69525, subd. (a).) Section 99202 similarly
provides that the “composition of each advisory board shall” be comprised of
“[o]ne representative” from each of ten enumerated groups and agencies (§
99202, subd. (b).) Wendz argues that because sections 99202 and 69525
“confirm[]” that the power to determine composition includes the size and
categories of membership, the Legislature intended for compositional
decisions under section 54444.2 to likewise encompass such matters.
“To understand the intended meaning of a statutory phrase, we may
consider use of the same or similar language in other statutes, because
disagreed, finding that the plain language of former Penal Code section
12022.53 did not exempt imperfect self-defense. (Id. at p. 884.) The court
found that the legislative history supported its interpretation because the
“Legislature’s use of perfect and imperfect self-defense in the various versions
of the statute demonstrates it knew how to include and exclude these
concepts when it so chose.” (Id. at p. 885.) Thus, the language of the statute
and the legislative history clearly showed an intent to exclude the concept of
imperfect self-defense. Here, in contrast, the legislative history of section
54444.2 does not clearly define the terms we are tasked with interpreting.
26
similar words or phrases in statutes in pari materia ordinarily will be given
the same interpretation.” (In re Bittaker (1997) 55 Cal.App.4th 1004, 1009.)
“Two ‘ “[s]tatutes are considered to be in pari materia when they relate to the
same person or thing, to the same class of person[s or] things, or have the
same purpose or object.” ’ ” (Lexin v. Superior Court (2010) 47 Cal.4th 1050,
1091; see Neville v. County of Sonoma (2012) 206 Cal.App.4th 61, 76 [holding
that Labor Code section 2924 had no bearing on the interpretation of Food
and Agricultural Code section 2181 and Business and Professions Code
section 12214, because it was not “related to” and did not have “the same
purpose or objective” of those statutes].)
Section 69525 deals with the governance of an auxiliary organization
that the Student Aid Commission established “for the purpose of providing
operational and administrative services for the participation by the
commission in the Federal Family Education Loan Program, or for other
activities approved by the commission . . . .” (§ 69522.) It is part of a
statutory scheme with the object of enhancing the effectiveness of state
student aid programs. (§ 69500.) Section 99202 concerns the establishment
of project advisory boards to further the legislative goal of developing
teachers’ subject matter and content knowledge. (§§ 99200, subd. (a)(1),
99202.) Those statutes do not address the specific educational needs of
migrant children. Even if there may be some overlap in the subject matter of
those statutes and the MEP, they do not have the same purpose. (§ 54440,
subd. (b); see Walker v. Superior Court (1988) 47 Cal.3d 112, 124, fn. 4
[“Characterization of the object or purpose is more important than
characterization of subject matter in determining whether different statutes
are closely enough related to justify interpreting one in light of the other”].)
They are therefore not in pari materia, and are irrelevant.
27
Even if the statutes are in pari materia, canons of statutory instruction
are not dispositive, and serve as “ ‘mere[] aids to ascertaining probable
legislative intent.’ ” (Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th
585, 879.) Courts will not accord the same meaning to similar phrases if “a
contrary intent appears.” (Scottsdale Ins. Co. v. State Farm Mutual
Automobile Ins. Co., supra, 130 Cal.App.4th at p. 899.) As previously
discussed, the application of other principles of statutory construction to
section 54444.2 reveals a legislative intent contrary to the broad definition of
“composition” in sections 69525 and 99202.
We therefore conclude that the regulations do not conflict with migrant
parents’ authority to “determine[]” or “decide on” the “composition” of the
RPACs. We thus turn to Wendz’s remaining arguments.
4. The Regulations Regarding Community Members Are Consistent
with Section 54444.2
Wendz next makes three arguments that the regulations conflict with
certain provisions of section 54444.2, subdivision (a)(1)(A), that deal with
community members. We consider and reject each in turn.
a. Definition of Eligible Community Member
First, Wendz argues that California Code of Regulations, title 5, section
12010, subdivision (b)(1) conflicts with the provision in subdivision (a)(1)(A)
of section 54444.2 that migrant parents nominate “ ‘[a]ll other community
candidates’ ” for the RPACs aside from school personnel and students,
because the regulation includes a definition of “ ‘[e]ligible community
member.’ ” The regulation defines “[e]ligible community member” as
“knowledgeable about the needs of migrant children, and is either an eligible
migrant child or a professional working in the field of education and social
and health services.” (Cal. Code Regs., tit. 5, § 12010, subd. (b)(1).)
28
According to Wendz, this definition prevents parents from nominating the
“vast majority” of community members.
Because Wendz is making a facial challenge to the validity of the
regulation, she “can prevail only if the text of the regulation, on its face, is
inconsistent with the relevant statute[s].” (PacifiCare Life & Health Ins. Co.
v. Jones (2018) 27 Cal.App.5th 391, 403; see Gov. Code, § 11349, subd. (d)
[“ ‘Consistency’ means being in harmony with, and not in conflict with or
contradictory to, existing statutes, court decisions, or other provisions of
law”].) “ ‘A facial challenge is “ ‘the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances
exists under which the [law] would be valid.’ ” ’ ” (PacifiCare Life & Health
Ins. Co. v. Jones, at p. 403.)
Here, the regulation does not, on its face, conflict with section 54444.2,
as it preserves parents’ authority to elect eligible members and nominate
community member candidates. Although the regulation may limit the
community candidates that are eligible to serve as RPAC members, parents
still have the authority to nominate and elect specific individuals from the
community. (See PaintCare v. Mortensen (2015) 233 Cal.App.4th 1292, 1310–
1311 [regulation properly “ ‘fill[ed] up the details’ ” of the statutory scheme
where it did not usurp manufacturers’ authority to set specific goals in their
paint stewardship plans; rather, it clarified that the manufacturer is to
calculate a baseline and “set a goal based on a change in the baseline”].)
Wendz’s assertion that the regulation conflicts with parents’ authority
to nominate “[a]ll other community candidates” requires us to find that the
statute provides parents the authority to set RPAC member eligibility
requirements. Indeed, Wendz argues that the statute provides migrant
parents the authority “without restriction” to nominate all other community
29
candidates. But as previously mentioned, section 54444.2 already imposes in
subdivision (a)(1)(A) a requirement for member eligibility: “The membership
of each parent advisory council shall be composed of members who are
knowledgeable of the needs of migrant children . . . .” (§ 54444.2, subd.
(a)(1)(A).) This suggests that the Legislature did not intend the language
that parents “shall” nominate “[a]ll other community candidates” to confer on
parents the exclusive authority to set community member qualifications.
Instead, when read in context of the entire subdivision, that sentence and the
one before it— “nonparent candidates shall be nominated by the groups they
represent: teachers by teachers, administrators by administrators, other
school personnel, and pupils by pupils” (§ 54444.2, subd. (a)(1)(A))—merely
specify which groups have the power to nominate candidates from the general
categories set forth in the statute.
We further observe that section 54444.2 does not prohibit the
Superintendent from imposing additional eligibility requirements, nor does it
state that requiring RPAC members be “knowledgeable of the needs of
migrant children” is sufficient to ensure “effective” parental involvement in
the MEP. This lack of specificity in the statute and the Legislature’s broad
grant of authority to the Superintendent to “take the steps necessary” to
ensure effective parental involvement in the MEP support the issuance of
regulations that impose RPAC member eligibility requirements “more
exacting than those already imposed by statute” (County of San Diego v.
Bowen (2008) 166 Cal.App.4th 501, 512), as it demonstrates a legislative
awareness that the Superintendent might determine that more exacting
requirements are necessary to ensure effective parental involvement in the
RPACs.
30
The language of section 54444.2 and its context therefore suggest that
the Legislature did not intend to prohibit the Superintendent from
establishing additional eligibility criteria for RPAC members. California
Code of Regulations, title 5, section 12010, subdivision (b)(1) is therefore
consistent with section 54444.2 and is a proper exercise of the
Superintendent’s authority under that statute.
b. Members’ Nominating Power
Wendz next argues that subdivision (a) of California Code of
Regulations, title 5, section 12013 conflicts with the language in subdivision
(a)(1)(A) of section 54444.2 that “the parents” are to nominate certain
community candidates and other groups are to nominate community
candidates from their respective groups. Wendz challenges the portion of the
regulation that states “[i]ndividual RPAC members may nominate eligible
community members to the RPAC.” (Cal. Code Regs., tit. 5, § 12013, subd.
(a).)
Contrary to Wendz’s assertion, however, this portion of the regulation
does not confer exclusive nominating power to existing regional council
members, nor does it purport to provide individual council members the
authority to nominate community member candidates from any of the groups
enumerated in section 54444.2. Rather, the regulation is concerned with
delineating the community member nomination process, and it provides,
among other provisions, that “individual parent members of the RPAC shall
solicit nominations for community member positions from the districts within
its boundaries” and that “[e]ligible community members shall be nominated
by the group they represent.” (Cal. Code Regs., tit. 5, § 12013, subd. (a).)
Thus, when read in context, the challenged portion of the regulation merely
clarifies that individual regional council members are permitted to nominate
31
eligible community members to the RPACs. (See Woodbury v. Brown-
Dempsey (2003) 108 Cal.App.4th 421, 433 [“Ordinarily, the word ‘may’
connotes a discretionary or permissive act”].) Clarification of nomination
procedures for RPACs is a matter which falls within the Superintendent’s
broad regulatory power under section 54444.2. (See, e.g., PaintCare v.
Mortensen, supra, 233 Cal.App.4th at p. 1313 [“CalRecycle has ‘filled up the
details’ to clarify the criteria for evaluation of manufacturer Plans”].) Thus,
the regulation is consistent with section 54444.2.
c. Requirement that Two-Thirds of RPAC Members Be Parent
Members
Finally, Wendz argues that California Code of Regulations, title 5,
section 12011, which imposes a three-member cap on community members
(Cal. Code Regs., tit. 5, § 12011, subd. (a)), conflicts with the language in
subdivision (a)(1)(B) of section 54444.2 that two-thirds of the members of
RPACs “shall be parents.” According to Wendz, the latter “reflects the
Legislature’s conscious decision to allow migrant parents to compose regional
councils with as many as one-third of members who are not migrant parents.”
Thus, Wendz contends, the regulation conflicts with that statutory
requirement because the three-member cap would effectively raise the two-
thirds requirement in any situation where migrant parents choose to form a
council with more than nine members. We disagree that the regulation
conflicts with subdivision (a)(1)(B) of section 54444.2.
Subdivision (a)(1)(B) of section 54444.2 on its face is concerned with
ensuring effective parental involvement in the RPACs by mandating a
minimum number of parent members. (§ 54444.2, subd. (a)(1)(B).) Based on
its plain language, that subdivision imposes a floor: “At least two-thirds of
the members of each parent advisory council shall be the parents of migrant
32
children.” The subdivision does not state that no more than or only two-
thirds of the RPAC members shall be parents, nor does it state that parents
shall have the authority to determine whether one-third of the members of
the RPACs will be nonparent members. (Ibid.) As the statute does not
impose any limit on the number of parent members on RPACs, California
Code of Regulations, title 5, section 12012 does not facially conflict with
section 54444.2. (County of San Diego v. Bowen, supra, 166 Cal.App.4th at
pp. 511–512 [finding that an agency’s regulation that imposed additional
tallying requirements did not conflict with statute providing a statewide 1
percent manual postelection tally, because the latter statute did not expressly
limit vote tallying].)
Wendz’s argument depends on a finding that migrant parents have the
“sole authority” to determine the makeup of the RPACs beyond the two-
thirds parent members requirement. But as previously discussed,
subdivision (a)(1) of section 54444.2 provides migrant parents only the power
to elect members and nominate certain candidates. It is the Superintendent
who has the authority to “ ‘fill up the details’ ” of the statute to effectuate the
goal of ensuring effective parental involvement in the MEP (Batt v. City and
County of San Francisco, supra, 184 Cal.App.4th at p. 171), which includes
the authority to adopt regulations supplementing the statutory directives
pertaining to the size and makeup of the RPACs. Given the plain language of
subdivision (a)(1)(B) to impose a mere floor and its placement within the
subdivision granting the Superintendent broad discretionary authority, the
Legislature has delegated to the Superintendent the power to impose
requirements “more exacting than those already imposed by statute . . . .”
(County of San Diego v. Bowen, supra, 166 Cal.App.4th at p. 511 [“The
authority of an agency to alter or enhance the scope of existing statutory law
33
is primarily a question of Legislative intent”]; see also Agricultural Labor
Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420 [“The Legislature
can surely accomplish indirectly that which it could do directly”].) The
Superintendent has properly exercised his discretionary authority under
section 54444.2 by imposing a rule that in some situations would require
migrant parents to form RPACs with more than two-thirds parent members.
Wendz points to the legislative history of the statute as support for her
argument. This history shows that as originally proposed in Assembly Bill
1382, section 54444.2 would require that “[a]t least 75 percent of the
members of each parent advisory council shall be the parents of migrant
children.” The staff of the Minority Ways and Means Committee objected to
this version, stating that the federal MEP only required a “majority” of
members on parents advisory councils be parent members. And the staff of
the Subcommittee on Educational Reform proposed striking the words “[a]t
least 75 percent” and substituting the words “[t]he majority” for the same
reason, and additionally commented that “[i]t is difficult to see how the
district’s and school’s sense of membership will be increased by mandating
parent advisory councils (PAC’s) that are 75 percent parents.” The
Legislature subsequently lowered this requirement to “[a]t least two-thirds”
of the members.
Contrary to Wendz’s contention, this history does not provide a “clear
statement of intent” to reserve for parents the right to compose RPACs with
as many as one-third members who are not parents. (See J.A. Jones
Construction Co. v. Superior Court, supra, 27 Cal.App.4th at p. 1579.) The
amendments suggest instead that the Legislature was compromising with
objectors by lowering the 75 percent requirement to two-thirds instead of a
majority. Accordingly, California Code of Regulations, title 5, section 12011
34
is a proper exercise of the Superintendent’s authority to take the steps
necessary to ensure effective parental involvement in the MEP.
B. Reasonable Necessity of Regulations
Under the APA, “no regulation adopted is valid or effective unless . . .
reasonably necessary to effectuate the purpose of the statute.” (Gov. Code, §
11342.2.) Wendz argues that the regulations are invalid because there is no
substantial evidence to support the Superintendent’s determination that the
regulations were reasonably necessary to effectuate the purpose of section
54444.2. We disagree.
Wendz’s emphasis on substantial evidence “obscures the principle that
courts are deferential of an agency’s determination of reasonable necessity.”
(California Assn. of Medical Products Suppliers v. Maxwell-Jolly (2011) 199
Cal.App.4th 286, 315 (Maxwell-Jolly).) “ ‘[R]easonable necessity . . . generally
does implicate the agency’s expertise; therefore it receives a much more
deferential standard of review.’ ” (Ibid.) That said, a regulation “may” be
declared invalid for lack of substantial evidence to support an agency’s
determination that the regulation is reasonably necessary to effectuate the
purpose of the statute. (Gov. Code, § 11350, subd. (b)(1).) “ ‘Necessity’ means
the record of the rulemaking proceeding demonstrates by substantial
evidence the need for a regulation to effectuate the purpose of the statute . . .
that the regulation implements, interprets, or makes specific, taking into
account the totality of the record.” (Gov. Code, § 11349, subd. (a).)
In Maxwell-Jolly, the State Department of Health Care Services
(Department) adopted regulations that set upper billing limits for providers
of durable medical equipment and certain medical supplies to Medi-Cal
recipients. (Maxwell-Jolly, supra, 199 Cal.App.4th at p. 291.) According to
the Department, the regulations closed a loophole in Medi-Cal regulations,
35
under which some providers were purchasing discounted products, or
obtaining them at no cost, and billing Medi-Cal for reimbursement without
accounting for the actual product purchase prices. (Ibid.) The Department
determined that the regulations were “ ‘necessary to prevent and curtail
provider fraud and abuse’ ” regarding medical supplies and durable medical
equipment. (Id. at p. 316.) An association of medical product suppliers
challenged the regulations in a petition for a writ of mandate, which the trial
court denied. (Id. at p. 291.) On appeal, the association argued that there
was not substantial evidence supporting the reasonable necessity of the
regulations because the Department did not actually produce evidence
showing that fraud or abuse was occurring. (Id. at pp. 315–316.)
Our colleagues in Division 2 of this court disagreed that there was no
substantial evidence supporting the Department’s determination of
reasonable necessity. (Maxwell-Jolly, supra, 199 Cal.App.4th at pp. 316–
317.) The court first concluded that the loophole itself was substantial
evidence to support the reasonable necessity of the regulations. (Id. at p.
316.) “Even if the Department had no evidence that any providers had yet to
exploit this loophole, it would have been entitled to adopt the [regulations] to
‘prevent’ abuse in the future under [Welfare and Institutions Code] section
14043.75.” (Id. at pp. 316–317.) This court further found that statements the
Department made in its initial and final statements of reasons supported its
determination of reasonable necessity. (Id. at p. 317.) Those statements
included that the Department “ ‘routinely reviews the billing practices of
Medi-Cal providers’ ” and “ ‘conducts audits of providers’ accounting and
billing practices,’ ” that the regulations were “ ‘based on the findings of those
reviews and audits,’ ” and that the Department’s “investigations . . . ‘reveal
exploitation of the Medi-Cal reimbursement system by providers . . . .’ ”
36
(Ibid.) Finally, the court found that comments made by the public during the
notice-and-comment period further supported the reasonable necessity of the
regulations, as the comments suggested that fraud in the Medi-Cal program
was rampant. (Id. at p. 294.) Thus, based on the loophole itself and the
statements in the record, the court concluded that there was substantial
evidence to support the reasonable necessity of the regulations to prevent and
curtail fraud and abuse pursuant to Welfare and Institutions Code section
14043.75. (Id. at p. 318.)
Here, Wendz is challenging the regulations that place a limit on the
number of parent and community RPAC members, that impose term limits
on members, that provide a definition of “eligible community member,” and
that specify grounds for member disqualification.7 The Superintendent
adopted those regulations pursuant to section 54444.2 because of his
determination that regulations were needed to “provide necessary guidance
to assist all RPACs to operate effectively, meet statutory requirements, and
safeguard the effectiveness of parent involvement at the regional and district
level.”
As in Maxwell-Jolly, the record in this case contains statements in the
initial and final statements of reasons that provide factual support for the
Superintendent’s determination of the need for regulations to effectuate the
purpose of section 54444.2. The Superintendent remarked in his initial
statement of reasons that the CDE implements the MEP by “monitoring
program compliance with program and fiscal requirements . . . .” and that
“[d]uring routine compliance visits, the CDE has found that RPACs are often
7 Wendz is also challenging the regulation prohibiting members’ use of
alternates. However, for the reasons discussed below, the prohibition is
invalid, and we strike it from the regulations.
37
out of compliance with” the requirement that at least two-thirds of the
members of each RPAC be parent members, and that “[i]n current practice,
council membership varies greatly across regions and, at times, can include
dozens of individuals.” The Superintendent’s initial and final statements of
reasons provided that the “CDE program reviews” and “monitoring visits”
revealed “many councils [were] dominated by the same non-parents’ [sic]
members across long periods of time[,]” which “has stifled and limited
participation from new or current migrant parents and instead encouraged
participation from former members, who no longer migrate nor do they have
children eligible for the program.” The Superintendent stated that the issues
with the RPACs’ statutory compliance and with limited opportunities for
parent participation have emerged because local bylaws currently determine
RPAC governance, and those bylaws “vary widely” in their provisions and
effectiveness. These statements provide substantial evidence of the need for
regulations regarding the size and makeup of RPACs to ensure effective
parental involvement in the MEP.8
8 The initial statement of reasons also declares that the regulations
“will address the federal non-compliance findings for the MEP” but does not
provide any information about those findings. Wendz argues that this bare
assertion does not constitute substantial evidence of the necessity of the
regulations. Wendz also argues that documents produced in the trial court
reflecting at least some of the CDE’s monitoring reviews show that no recent
reviews predating the Superintendent’s rulemaking found compliance issues
with the RPACs.
We agree that the reference to federal non-compliance findings does not
constitute substantial evidence of the reasonable necessity of the regulations.
Even assuming that “federal non-compliance findings” refers to the 2011
report prepared by the U.S. Department of Education Office of Migrant
Education, which we discuss later in the opinion, we do not consider that
report in deciding whether substantial evidence supports the challenged
regulations, because the report does not appear in the rulemaking file. We
nonetheless find that there is substantial evidence in the record supporting
38
We further conclude that the need for some regulation was self-evident
from the statute itself, given the paucity of standards in the Act that govern
RPACs. (§ 54444.2, subd. (a)(1).) Even if the Superintendent had no
evidence before him that parental involvement in the RPACs was currently
ineffective or out of compliance with statutory requirements, the
Superintendent was entitled to adopt regulations to “ensure” effective
parental involvement in the MEP in the future under section 54444.2. (See
Maxwell-Jolly, supra, 199 Cal.App.4th at pp. 316–317.) Indeed, the
Superintendent concluded that the regulations would “safeguard” the
effectiveness of parental involvement in the MEP, and that “clear rules” for
governance of the RPACs and for elections would “maximize” parent
participation and “encourage” cooperative governance among council
members and with the operating agencies.
The case upon which Wendz relies as support for her argument that
there is no substantial evidence of reasonable necessity—Light v. State Water
Resources Control Bd. (2014) 226 Cal.App.4th 1463—does not compel a
different conclusion. There, the State Water Resources Control Board
(Board) adopted a regulation that was likely to require a reduction in
diversion of water from the stream system for frost protection. (Id. at p.
1472.) The Board adopted the regulation to protect salmonids in the stream
system from stranding mortality due to sudden drops in water level. (Id. at
p. 1495.) The trial court found no substantial evidence to support the Board’s
the Superintendent’s determination of reasonable necessity. The record
suggests that the CDE’s findings from its “routine” compliance reviews and
monitoring visits cited by the Superintendent in his initial notice are
independent of the OME’s findings in the 2011 report. And the CDE
monitoring review documents produced by respondents does not mean that
CDE staff did not make oral reports of their compliance review findings
regarding issues with the RPACs.
39
finding of regulatory necessity, concluding that the Board had not collected
sufficient data to demonstrate the need for the regulation. (Ibid.)
On appeal, this court concluded that while it was “uncertain from the
record precisely what type of regulation of frost protection diversion [was]
necessary to protect salmonids, the need for some type of regulation [was]
supported by substantial evidence.” (Light v. State Water Resources Control
Bd., supra, 226 Cal.App.4th at p. 1497.) The four scientific studies the Board
relied on in adopting the regulation did not directly connect salmonid
strandings with water diversion for frost protection, but the court concluded
that the Board made reasonable inferences associating salmonid mortality
with the sudden declines observed during periods of low temperature and
connecting those declines with diversion for the purpose of frost protection.
(Id. at pp. 1496–1497.) “Giving due deference to the Board’s expertise, and
recognizing our obligation to resolve conflicts and draw inferences in the
Board’s favor, we conclude the foregoing provides substantial evidence to
support the Board’s conclusion that some regulation of growers’ diversion of
water for frost protection was necessary to prevent unwarranted salmonid
mortality.” (Id. at p. 1496.)
So too, here, the Superintendent reasonably inferred from the lack of
consistent rules governing the RPACs and from CDE compliance reviews and
monitoring visits that some regulation of the size and makeup of the RPACs
was necessary to ensure effective parental involvement in the MEP, even if it
is not clear from the record the precise regulations needed to accomplish that
goal. We cannot substitute our own deductions for those of the agency.
(Light v. State Water Resources Control Bd., supra, 226 Cal.App.4th at p.
1495.)
40
Wendz argues that the Superintendent could not rely on the references
in the initial and final statements of reasons to “routine compliance visits,”
“program reviews,” and “monitoring visits,” but instead was required to
present “support” for those reviews and visits. But Wendz does not cite any
legal authority in support of this assertion, nor does she argue that the
Superintendent in his rulemaking capacity was required to follow formal
rules of evidence. Here, as we have indicated, the Superintendent needed
only to provide some factual basis in the administrative record for his
determination that the regulations were reasonably necessary to effectuate
the purpose of section 54444.2. (See Gov. Code, § 11349, subd. (a) [“evidence”
of “ ‘[n]ecessity’ ” includes “facts”]; Maxwell-Jolly, supra, 199 Cal.App.4th at
p. 317.)
Wendz further argues that even if substantial evidence existed showing
noncompliance with the statutory requirement that at least two-thirds of the
RPAC members must be parent members, the Superintendent made no
showing that the regulations will “have any effect on whether regional
councils comply with existing proportionality requirements.” However, an
agency is entitled to make its own policy judgment on how best to implement
its regulatory authority. “Our function in passing upon the efficacy of the
means employed by the agency to effectuate the statutory purposes is . . . a
very limited one . . . ‘[A court] will not ... superimpose its own policy judgment
upon the agency in the absence of an arbitrary and capricious decision’.... [¶]
Nor, in reaching this conclusion, can we consider alternative methods of
regulation available to the department.” (Ralphs Grocery Co. v. Reimel
(1968) 69 Cal.2d 172, 179–180.) Because Wendz does not contend that the
regulations are not rational or that they are arbitrary and capricious, we
assume without deciding that the regulations were a rational response to the
41
Superintendent’s efforts to ensure effective parental involvement in the MEP,
and were not arbitrary or capricious.
Accordingly, we have no basis for invalidating the regulations for lack
of reasonable necessity.
C. Compliance with the APA
A regulation “may be declared to be invalid for a substantial failure to
comply with [the APA] . . . .” (Gov. Code, § 11350, subd. (a).) Wendz argues
that the trial court erred in upholding the regulations because the
Superintendent failed to substantially comply with four of the APA’s
procedural requirements in adopting the regulations. First, she argues that
the Superintendent failed to comply with Government Code section 11346.2,
because he did not disclose in his initial statement of reasons that he relied
on a 2011 report from the U.S. Department of Education Office of Migrant
Education in proposing the adoption of the regulations. Second, she contends
that the Superintendent’s initial statement of reasons failed to describe and
justifiably reject reasonable alternatives available to the Superintendent at
that time. (Gov. Code, § 11346.2, subd. (b)(4).) Third, and relatedly, Wendz
argues that the Superintendent’s final statement of reasons failed to describe
and justifiably reject reasonable alternatives presented to him through the
notice-and-comment period. (Gov. Code, § 11346.9, subd. (a)(4).) Finally,
Wendz argues that the Superintendent failed to give the public a 45-day
notice of a proposed regulation prohibiting RPAC members’ use of alternates.
(Gov. Code, § 11346.4, subd. (a).) Reviewing the Superintendent’s compliance
with those rule-making procedures de novo (California Advocates for Nursing
42
Home Reform v. Bonta (2003) 106 Cal.App.4th 498, 506), we conclude that
only the latter argument has merit, and so we begin with that contention.
1. The Superintendent Failed to Give the Public the Requisite 45
Days’ Notice of the Prohibition on Alternates.
The prohibition on RPAC members’ use of alternates is found in
subdivision (a) of California Code of Regulations, title 5, section 12011.
Initially, the proposed text of the regulation stated that “[t]he RPACs shall be
comprised of ten eligible parent members and three community members . . .
.” The initial statement of reasons noted that currently, council membership
“varies greatly across regions and, at times, can include dozens of
individuals.” Therefore, the purpose of the proposed rule was to “limit RPAC
membership” in order to “ensure efficient and effective meetings” and to
“ensure the RPAC functions as a decision-making body for the larger program
rather than the current practice which is a large parent meeting that does
not include representative governance.”
After receiving several comments on the proposed regulations,
including a couple of comments urging the Superintendent to allow members
to use alternates, the Superintendent issued a 15-day notice of modifications
to the text of the proposed regulation. As pertinent here, the Superintendent
amended the proposed regulation to increase eligible parent members up to
15 and to “specify” that alternate members were not allowed. The final rule
stated in relevant part that “[t]he RPAC shall be comprised of up to 15
eligible parent members with no alternate members.” (Cal. Code Regs., tit. 5,
§ 12011, subd. (a).)
Wendz argues that the trial court erred in holding that the
Superintendent did not need to provide the minimum 45-day notice required
under Government Code section 11346.4 for proposed regulatory action for
43
the modification prohibiting alternates. In response, respondents argue that
the modification was “sufficiently related” to the original text such that they
only needed to provide a 15-day notice under Government Code section
11346.8, subdivision (c).
a. The Law Governing Notice in APA Rulemaking
Government Code section 11346.4 provides that “[a]t least 45 days
prior to the hearing and close of the public comment period on the
adoption . . . of a regulation,” notice of the proposed action “shall” be mailed
to specified individuals and entities, published in the California Regulatory
Notice Registrar, and posted on the state agency’s website if the agency has a
website. (Gov. Code, § 11346.4, subd. (a).) Under Government Code section
11346.8, the agency cannot adopt a regulation which has been changed from
that which was originally made available to the public in the notice, “unless
the change is . . . sufficiently related to the original text that the public was
adequately placed on notice that the change could result from the originally
proposed regulatory action.” (Gov. Code, § 11346.8, subd. (c).) If the change
is a “sufficiently related” change, then the agency must make the full text of
the resulting regulation available to the public “for at least 15 days before the
agency adopts . . . the resulting regulation.” (Ibid.)
The parties cite no case, and we are aware of none, determining when
an amendment to a regulation is “sufficiently related” to the original text
under Government Code section 11346.8 such that the public had adequate
notice of the potential modification. Several federal cases have addressed the
issue of adequate notice in the rulemaking context under the federal version
of the APA. Wendz has relied on one such case—Long Island Care at Home,
Ltd. v. Coke (2007) 551 U.S. 158—as support for her argument. At issue in
Long Island Care was a Labor Department regulation interpreting a Fair
44
Labor Standard Act (FLSA) provision exempting from the FLSA’s minimum
wage and maximum hour rules “companionship” workers. (Long Island Care
at Home, Ltd. v. Coke, at p. 158.) The Labor Department initially proposed a
rule that would have placed outside the exemption individuals employed by
third-party employers. (Id. at p. 174.) The final regulation, however,
exempted all third-party-employed companionship workers from the FLSA.
(Long Island Care at Home, Ltd. v. Coke, at pp. 158, 175.) The respondent
argued that this regulation violated the federal APA because the notice-and-
comment procedure leading to the promulgation of the regulation provided
inadequate notice. (Id. at p. 174.)
In determining whether there was adequate notice, the Court first
noted that the federal APA requires an agency conducting notice-and-
comment rulemaking to publish in its notice of proposed rulemaking “ ‘either
the terms or substance of the proposed rule or a description of the subjects
and issues involved.’ ” (Long Island Care at Home, Ltd. v. Coke, supra, 551
U.S. at p. 174.) “The Courts of Appeals have generally interpreted this to
mean that the final rule the agency adopts must be ‘a “logical outgrowth” of
the rule proposed.’ ” (Ibid.) “The object, in short, is one of fair notice.” (Ibid.)
The Court concluded that it was “reasonably foreseeable” that the Labor
Department, after considering the matter, would withdraw the proposed
regulation for “special treatment of employees of ‘covered enterprises,’ ” and
therefore notice was not inadequate. (Id. at p. 175.)
The reasoning of Long Island Care at Home, Ltd. v. Coke, supra, 551
U.S. 158 is consistent with the concept of adequate notice in the rulemaking
context articulated by our Supreme Court in a case that involved rulemaking
that occurred prior to the enactment of Government Code section 11346.8. In
Western Oil & Gas Ass’n v. Air Resources Board (1984) 37 Cal.3d 502, the
45
State Air Resources Board (ARB) adopted standards for sulfates pursuant to
its authority to adopt standards of ambient air quality. (Id. at pp. 507–508.)
The initial notice stated that the “ ‘staff’s data tend to confirm the validity of
the previously adopted .04 ppm standard, or a more stringent standard,’ ”
and that the ARB would consider all evidence, including evidence supporting
a more stringent or lenient standard. (Id. at p. 526.) The trial court
concluded that the notice “should have proposed a specific standard and if the
evidence at the hearing showed that some other standard was appropriate, a
new notice followed by a hearing would be required.” (Ibid.)
Our high court disagreed: “To require a new notice and hearing would
tie the agency into time consuming, circular proceedings transcending the
statutory purpose: to advise the public of the subject under consideration and
to afford a reasonable opportunity to present evidence, views and arguments.
Accordingly, the regulation adopted need not be the same as that proposed as
long as it deals with the same subject or issue dealt with by the notice.”
(Western Oil & Gas Ass’n v. Air Resources Board, supra, 37 Cal.3d at p. 526.)
In the case before it, the court found that the standard adopted by the ARB
“clearly deals with the subject mentioned in the notices, and the notices were
not so broad as to preclude effective comment by plaintiffs and other
members of the public.” (Id. at p. 527.) “The determination of the
appropriate standard can only be made by comparing it to other potential
standards, and no matter how many hearings are held, essentially the same
weighing process will be required.” (Ibid.)
The court cited with approval Schenley Affiliated Brands Corp. v. Kirby
(1971) 21 Cal.App.3d 177, superseded by statute on another ground as stated
in Western Growers Assn. v. Occupational Safety & Health Standards Bd.
(2021) 73 Cal.App.5th 916, 933, fn. 4. (Western Oil & Gas Ass’n v. Air
46
Resources Board, supra, 37 Cal.3d at p. 526.) There, the Department of
Alcoholic Beverage Control amended a regulation to restrict wholesalers in
the varieties and rates of discounts offered from the single-case price of
distilled spirits. (Schenley Affiliated Brands Corp. v. Kirby, at p. 182.) The
petitioners argued that the amended regulation the agency ultimately
adopted “differed widely from that described in the notice . . . .” (Id. at pp.
191, 193.) In determining the adequacy of the notice, the court held that the
agency was not confined substantially to the proposal described in the
published notice: “A prime objective is to persuade the agency into action
differing from its pre-hearing proposal. . . . [¶] Thus, eventual adoption of a
regulation differing from that described in the pre-hearing notice is one
objective of the hearing process. Fairness too is a statutory desideratum.
After an opportunity for participation in a hearing considering the subject or
issue evoked by the pre-hearing draft or summary, affected interests cannot
claim unfairness when the agency’s consideration of new information and
views persuades it into a different enactment dealing with the identical
subject or issue.” (Id. at p. 193.) The court concluded that the notice was
adequate because it “sufficiently communicated awareness of proposed
restrictions upon the number and kinds of discounts to be filed[,]” and the
final rule “dealt with the very subject or issue evoked by the notice of
hearing.” (Ibid.)
Government Code section 11346.8, enacted almost a decade after the
Schenley decision, appears to codify the standard for adequate rulemaking
notice in that case, as it prohibits the adoption of a final rule different than
that originally proposed unless it is “sufficiently related” to the original text
such “that the public was adequately placed on notice that the change could
result from the originally proposed regulatory action.” (Gov. Code, § 11346.8,
47
subd. (c); see Pacific Intermountain Express v. National Union Fire Ins. Co.
(1984) 151 Cal.App.3d 777, 783 [“the Legislature is presumed ‘to have
knowledge of existing judicial decisions and to have enacted statutes in light
thereof’ ” absent a clear intent to the contrary].)
b. Application of Notice Principles to this Case
Applying the principles of the notice cases, we must focus on whether
the final rule adopted by the Superintendent concerned the same subject or
issue as the initial notice and whether the Superintendent made his views
known in a “ ‘concrete and focused form so as to make criticism or
formulation of alternatives possible.’ ” (Small Refiner Lead Phase-Down Task
Force v. United States E.P.A. (D.D.C. 1983) 705 F.2d 506, 548; see Western
Oil & Gas Ass’n v. Air Resources Board, supra, 37 Cal.3d at pp. 526–527;
National Black Media Coalition v. F.C.C. (2d Cir. 1986) 791 F.2d 1016, 1023
[“ ‘[u]nfairness results unless persons are “sufficiently alerted to likely
alternatives” so that they know whether their interests are “at stake” ’ ”].) If
the notice does not provide any “specific indication” of the changes the
Superintendent might try to make, or if the final rule concerns a different
issue altogether, notice may be inadequate because commenters will be
“hampered in effectively opposing those changes.” (Small Refiner Lead
Phase-Down Task Force v. E.P.A, at p. 548.)
We conclude that the original text of the regulation and the notice of
proposed regulations did not provide the public adequate notice of the final
rule. The initial rule placed a cap on the number of members; it does not, on
its face, address members’ use of alternates. And the notice of proposed
rulemaking provides no specific indication that the Superintendent might
prohibit the use of alternates. It focuses instead on the problems arising
from RPAC meetings that involve a large number of members, and it
48
specifies in detail other issues with parent member participation. This
specificity, together with total silence concerning members’ use of alternates,
indicates that alternates were not at issue. (See Chocolate Mfrs. Ass’n of U.S.
v. Block (4th Cir. 1985) 755 F.2d 1098, 1106–1107 [finding that the agency
did not provide adequate notice that elimination of flavored milk would be
considered in rule-making procedure where discussion in preamble to
proposed rule was detailed and identified specific foods which agency was
examining for excess sugar].) In comparison, the final rule places a cap on
the number of members and prohibits the use of alternates, thereby imposing
an additional restriction on migrant parents. (Cal. Code Regs., tit. 5, §
12011, subd. (a).)
Although in some cases courts have found adequate notice of a final
rule that imposes different or additional measures than those originally
proposed, the proposed rule and the changes to the rule addressed the same
issue. (See, e.g., South Terminal Corp. v. E.P.A. (1st Cir. 1974) 504 F.2d 646,
656–657 [finding that the final rule, which added transportation controls
different than those in the proposed rule, was in “character with the original
scheme” because both the proposed and final regulations “stress VMT
reducing controls”].) That is not the case here, because the final statement of
reasons states that the prohibition on alternates was necessary to address
“inconsistent attendance” and to ensure the members are “fully informed and
up-to-date on discussion topics at every meeting,” issues the Superintendent
did not identify in the initial statement of reasons. Under these
circumstances, it cannot be said that the public had adequate notice that the
49
Superintendent might adopt a regulation prohibiting the use of alternates by
RPAC members.9
Because the prohibition on alternates was not a “sufficiently related”
change under Government Code section 11346.8, subdivision (c), the
Superintendent was required to provide the public 45 days’ notice under
Government Code section 11346.4, subdivision (a). He failed to do so. The
trial court therefore erred in finding that the prohibition on alternates was
valid, and we strike it from section 2011, subdivision (a).10 (Gov. Code, §
11350, subd. (a).)
9 Although, as noted, there were a couple of comments prior to the 15-
day notice urging the Superintendent to allow alternates, the Superintendent
“ ‘cannot bootstrap notice from a comment.’ ” (Fertilizer Institute v. U.S.
E.P.A. (D.D.C. 1991) 935 F.2d 1303, 1312.) It is the Superintendent’s
responsibility to provide adequate notice of a regulatory proposal. (Ibid.;
Gov. Code, § 11346.8, subd. (c) [a final rule must be “sufficiently related” to
the “original text,” italics added].)
10 The parties do not address the issue whether we can sever the
prohibition on alternates from the rest of the regulation, although the issue is
necessarily raised by Wendz’s argument that the prohibition on alternates is
invalid. Because the prohibition on alternates is grammatically severable
and its severance “would not change or alter the substance” of the rest of the
regulation, which is valid, we conclude that the proper remedy is to sever the
prohibition. (Pulaski v. California Occupational Safety and Health
Standards Board (1999) 75 Cal.App.4th 1315, 1342 [finding that a small
employer exemption in a regulation imposing requirements to address
repetitive motion injuries in the workplace was an abuse of the agency’s
rulemaking discretion, and severing the exception from the rest of the
regulation].) Thus, there is no reason to return the entire regulation to the
Superintendent for more rulemaking, and the regulation should go into effect
with the prohibition on alternates deleted.
50
2. The Superintendent Was Not Required to Disclose the 2011
OME Report in His Initial Statement of Reasons
Wendz argues that the Superintendent failed to substantially comply
with the APA because he did not disclose in his initial statement of reasons a
2011 report prepared by the U.S. Department of Education Office of Migrant
Education (OME) that he allegedly relied on in adopting the regulations.
Respondents disagree that this omission violated the APA, because
Government Code section 11346.2 only requires disclosure in the initial
statement of reasons of “each technical, theoretical, and empirical study,
report, or similar document, if any, upon which the agency relies in proposing
the adoption . . . of a regulation[,]” and the OME report is not a technical,
theoretical, or empirical report. We conclude that respondents have the
better argument.11
a. Factual and Procedural Background
In September 2011, the OME transmitted to the Superintendent the its
findings from its monitoring review of the CDE’s compliance with the federal
11 In addition to Government Code section 11346.2, Wendz cites as
support for her argument Sims v. Department of Corrections & Rehabilitation
(2013) 216 Cal.App.4th 1059 (Sims) for the proposition that one of the
procedural requirements of the APA “is to disclose ‘the information or
documents the agency relied upon in proposing . . . the regulation.’ ” The
Sims court, however, did not determine whether the agency violated the
requirement in Government Code section 11346.2 that the initial statement
of reasons disclose certain documents relied upon by the agency in proposing
the regulation. The language quoted by Wendz reflects the Sims court’s
general discussion of the procedural requirements of the APA. (Sims, at p.
1074.) Wendz also notes that the Sims court invalidated the regulations in
part because the agency did not substantially comply with the requirement
that the “ ‘rulemaking file’ ” is to “disclose” documents the agency relied on in
drafting the regulations. In doing so, the court relied on Government Code
section 11347.3, which pertains to the required contents of the rulemaking
file. (Sims, at pp. 1066–1067.) However, Wendz does not address
Government Code section 11347.3 in her appellate briefs, nor does she argue
51
MEP grant program (the OME report). The federal MEP’s purpose is to
assist states in meeting the special educational needs of migrant children.
States are to use federal MEP funds to carry out this purpose by establishing
and improving education programs for migrant children. The OME report
provides an overview of the California MEP and discusses its areas of
noncompliance with the federal MEP and the required corrective actions.
As relevant to this appeal, one of the areas of noncompliance identified
in the OME report is parent advisory councils. According to the report, the
OME notified the CDE that it had received numerous complaints concerning
the governance, operations, and actions of the state parent advisory council,
and about staff misconduct at the state and regional levels. The CDE
investigated the complaints by collecting and examining emails, letters, and
meeting minutes, and concluded from those documents that the state parent
advisory council failed to comply with notice and agenda requirements.
Additionally, the CDE concluded that the council executive members
interfered with member participation in meetings by, among other things,
passing bylaws that unlawfully removed members and prohibited members
from voting and otherwise participating in meetings. The CDE further found
that the state parent advisory council did not comply with the two-thirds
in her opening brief that the Superintendent was required to and failed to
include the 2011 OME report in the rulemaking file. Rather, her argument
focuses on the fact that the Superintendent’s initial statement of reasons does
not disclose the report. Our review is limited to those issues that have been
adequately raised and supported in Wendz’s brief. (Lee v. Kim (2019) 41
Cal.App.5th 705, 721.) To the extent her reply brief attempts to make up for
this shortcoming by arguing that “the failure to disclose that report in the
administrative record violated the APA,” she is too late. (Eyford v. Nord
(2021) 62 Cal.App.5th 112, 126 [“arguments made in a reply brief for the first
time are too late”].)
52
parent member requirement. The OME concluded from the CDE’s findings
that the “continued dominance of [state parent advisory council] by non-
parent members” was a “serious impediment to the effective involvement of
parents of migrant children in the MEP.” Although the OME report largely
concerns issues with the state parent advisory council, the OME concluded
that the CDE’s failure to correct the identified issues was “likely to result in
the continued dysfunctional operation of the [state parent advisory council]
and regional PACs in California until CDE has addressed the problems it
identified.”
As Wendz points out, the Superintendent did not mention the OME
report in his initial statement of reasons. Under the heading “Studies,
Reports or Documents Relied Upon – Gov. Code Section 11346.2(b)(3),” his
initial statement of reasons states that he “did not rely upon any technical
reports or documents, including theoretical or empirical studies, in proposing
the adoption of these regulations.”
In the trial court, however, respondents argued in their opposition to
the petition for writ of mandate that the OME report and the evidence in the
administrative record “supports the Superintendent’s and CDE’s lawful
promulgation of regulations . . . .” Respondents cited the facts in the report
that the OME had received complaints about the misconduct of regional and
state MEP staff, that RPACs had similar issues to the state parent advisory
council, including non-parent members “hindering effective parental
involvement at the regional level,” and that the OME had concerns about the
operation of RPACs.
In her reply, Wendz argued that the Superintendent was attempting to
cure his noncompliance with subdivision (b) of Government Code section
11346.2 by adding the OME report to the record after the fact.
53
The trial court concluded that the Superintendent did not have to
support his initial statement of reasons with documents. It noted that
subdivision (b)(3) of Government Code section 11346.2 requires the
identification of a “ ‘document, if any, upon which the agency relies in
proposing . . . a regulation.’ ” Because the Superintendent relied on oral
reports of “routine compliance visits” and “program reviews” by CDE staff to
support the regulations, the trial court concluded that the Superintendent’s
“reliance was lawful and their stated reasons sufficed.”
b. The Report Does Not Fall Within the Scope of Government
Code Section 11346.2.
The APA requires the agency to prepare and make available to the
public an initial statement of reasons for proposing the adoption of a
regulation. (Gov. Code, § 11346.2, subd. (b).) The initial statement of
reasons “shall include, but not be limited to” certain information not at issue
here (Gov. Code, § 11346.2, subd. (b)(1), (2), (4)) and an “identification of each
technical, theoretical, and empirical study, report, or similar document, if
any, upon which the agency relies in proposing the adoption . . . of a
regulation” (Gov. Code, § 11346.2, subd. (b)(3)).
The parties disagree on the meaning of the term “empirical” as used in
subdivision (b)(3) of Government Code section 11346.2. Wendz argues in her
reply that the dictionary definition of “empirical” is “originating in or based
on observation or experience,” and thus the report was an empirical report
because it made factual findings based on observation or experience.
Respondents suggest a narrower construction of “empirical” based on an
interpretation of that term in the context of the entire subdivision. We
therefore begin our analysis by giving the statutory language its ordinary
54
meaning. (California Public Records Research, Inc. v. County of Yolo (2016) 4
Cal.App.5th 150, 167.)
Dictionary definitions of the term “empirical” vary, including the
definition relied on by Wendz—“originating in or based on observation or
experience.” (Merriam-Webster < https://www.merriam-
webster.com/dictionary/empirical> [as of March 28, 2023].) In arguing that
the report falls within this definition, Wendz cites the OME’s findings of the
CDE’s noncompliance with various areas of the federal MEP grant program.
Those findings are based, at least in part, on observations and experience, in
the sense that the OME received information from the CDE and third parties
regarding the CDE’s compliance with the program and formed opinions based
on that information and its expertise. Thus, when the term “empirical” is
viewed in isolation, it is difficult to dispute that the term is arguably
susceptible to Wendz’s interpretation.
However, when viewed in context of the entire subdivision, the word
“empirical” takes on a narrower meaning. (Kaanaana v. Barrett Business
Services, Inc. (2021) 11 Cal.5th 158, 169 [“words used in a statute are
considered in context, not in isolation”].) Government Code section 11346.2,
subdivision (b)(3) refers to an “empirical study, report, or similar document.”
(Gov. Code, § 11346.2, subd. (b)(3), italics added.) An “empirical study” is
commonly understood to mean a research study that relies on empirical
evidence; it is designed to test a theory or hypotheses by collecting
independently verifiable data or information and making conclusions based
on that information. (See, e.g., Eisenberg & Miller, Incentive Awards to Class
Action Plaintiffs: An Empirical Study (2006) 53 UCLA L.Rev. 1302;
Merchants’ Responses to Shoplifting: An Empirical Study (1976) 28 Stan.
L.Rev. 589; Notes, Testing Three Commonsense Intuitions About Judicial
55
Conduct Commissions (2012) 64 Stan. L.Rev. 1021; see also Webster’s 9th
New World College Dictionary (1989) [defining “empirical” as “relying or
based solely on experiment and observation rather than theory,” as in “the
empirical method”].) Empirical studies set forth the methodology used, which
is important in the context of APA rulemaking because it allows the public to
test the accuracy and reliability of the study results. (See Portland Cement
Ass’n v. Ruckelshaus (D.D.C. 1973) 486 F.2d 375, 392–393, superseded by
statute on other grounds as stated in American Trucking Ass’ns, Inc. v.
United States EPA (D.D.C. 1999) 175 F.3d 1027 [remanding to the agency for
further review where the agency failed to make available to the public the
test methodology used on existing cement plants which formed a partial basis
for the emission control level adopted by the agency].)
A reading of the term “empirical” in Government Code section 11346.2
as referring to a specific type of research study comports with the statutory
construction doctrine of noscitur a sociis. Under the rule of noscitur a sociis,
“[a] word of uncertain meaning may be known from its associates and its
meaning ‘enlarged or restrained by reference to the object of the whole clause
in which it is used. ’ ” (Oden v. Board of Administration (1994) 23
Cal.App.4th 194, 203.) “ ‘In accordance with this principle of construction, a
court will adopt a restrictive meaning of a listed item if acceptance of a more
expansive meaning would make other items in the list unnecessary or
redundant, or would otherwise make the item markedly dissimilar to the
other items in the list.’ ” (People ex rel. Lungren v. Superior Court (1996) 14
Cal.4th 294, 307.) From this perspective, the term “empirical” is best
interpreted in light of its semantic relationship to the terms “theoretical” and
“technical.”
56
In reviewing the common meanings of the three terms, a central theme
emerges. The terms “theoretical” and “empirical” are commonly used to refer
to different methods of research. (See People v. Giani (1956) 145 Cal.App.2d
539, 543 [explaining how research in “sexual deviation” has been “theoretic
and speculative rather than empiric”]; Dictionary.com
[as of
March 26, 2023].) And the term “technical report” ordinarily refers to a
report that discusses the results of technical or scientific research. (See, e.g.,
OEHHA Defends Use of NTP Reports in Listing Decisions (2003) vol. 17, No.
4, Cal. Envtl. Insider 16 [discussing how the results of studies designed by
the National Toxicology Project on toxic chemicals are published as technical
reports]; Barclay Hollander Corp. v. California Regional Water Quality
Control Bd. (2019) 38 Cal.App.5th 479, 490 [noting that company “conducted
the requested environmental investigation, including collecting analytical
data, and compiled technical reports based on 2,400 samples taken at several
locations on the Site”].) Together, these terms refer to different types of
research reports or studies. Therefore, in using the term “empirical,” it
appears that the Legislature intended to require agencies to identify in their
initial statement of reasons documents similar to an empirical study, rather
than any report that contains findings based on a party’s observations or
experience.
Moreover, in construing the term “empirical” in the context of the
entire statutory scheme, we observe that a different statute concerning APA
procedural requirements uses an almost identical phrase. Subdivision (b) of
Government Code section 11347.3, which concerns the required contents of
the “rulemaking” file, requires the inclusion of “technical, theoretical, and
empirical studies or reports” relied on by the agency in adopting the
57
regulation. (Gov. Code, § 11347.3, subd. (b)(7).) It also requires, in a
separate subdivision, the inclusion in the rulemaking file of “[a]ll data and
other factual information” submitted to the agency or relied on by the agency
in adopting the regulation, thus distinguishing between that category of
information and “technical, theoretical, and empirical” reports. (Gov. Code, §
11347.3, subds. (b)(6), (b)(7).) Only the latter must be identified in an initial
statement of reasons, whereas the rulemaking file must additionally contain
“[a]ll data and other factual information” relied on by the agency. Where, as
here, “the Legislature makes express statutory distinctions, we must
presume it did so deliberately, giving effect to the distinctions, unless the
whole scheme reveals the distinction is unintended.” (Jurcoane v. Superior
Court (2001) 93 Cal.App.4th 886, 894.)
Based on the foregoing, we conclude that the OME report is not the
type of report contemplated by subdivision (b)(3) of Government Code section
11346.2. It does not concern technical, theoretical, or empirical research.12
Rather, the report is more properly classified as “other factual information,”
as it discusses the OME’s opinions on respondents’ compliance with the
federal MEP program based on information it received from third parties and
the proper corrective actions for any noncompliance. (See POET, LLC v.
State Air Resources Bd. (2013) 218 Cal.App.4th 681, 752–753 [e-mails to
12 Wendz further argues that even if the report is not an empirical
report, it falls within the “catchall” phrase “or similar document” in
subdivision (b)(3) of Government Code section 11346.3. But given the syntax
of that subdivision, the phrase “technical, theoretical, and empirical” modifies
“study, report, or similar document.” Thus, a document must be similar to a
technical, theoretical or empirical study or report to fall within the scope of
subdivision (b)(3) of Government Code section 11346.3. For the reasons
discussed above, that is not the case here.
58
agency from its technical consultants contained “factual information” as that
term is used in Government Code section 11347.3, subdivision (b)(6), because
they conveyed “nonopinion information,” “ ‘knowledge of a particular event or
situation,’ ” and a “narrative” of the experts’ opinions].) As mentioned, only
“technical, theoretical, or empirical” reports are required to be disclosed in
the initial statement of reasons. (See Pulaski v. California Occupational
Safety and Health Standards Board, supra, 75 Cal.App.4th at pp. 1330–1331
[“the fact that the Board cited only six documents [in its initial and final
statements of reasons] is not determinative, given that it was not required to
cite any”].)
Accordingly, the Superintendent’s failure to disclose the OME report in
his initial statement of reasons does not constitute substantial
noncompliance with the APA.
3. The Superintendent Complied with the APA Requirements
Concerning Reasonable Alternatives.
Wendz next argues that the Superintendent failed to comply with the
APA because his initial statement of reasons failed to describe and justifiably
reject reasonable alternatives available to him at the time, and his final
statement of reasons failed to describe and justifiably reject reasonable
alternatives presented to him through the notice-and-comment period.
a. Initial Statement of Reasons
We first consider the Superintendent’s initial statement of reasons.
Government Code section 11346.2, subdivision (b)(4) provides that an initial
statement of reasons “shall” include “[a] description of reasonable
alternatives to the regulation and the agency’s reasons for rejecting those
alternatives. Reasonable alternatives to be considered include, but are not
limited to, alternatives that are proposed as less burdensome and equally
59
effective in achieving the purposes of the regulation in a manner that ensures
full compliance with the authorizing statute or other law being implemented
or made specific by the proposed regulation.” (Gov. Code, § 11346.2, subd.
(b)(4).) Notwithstanding this requirement, “an agency is not required to
artificially construct alternatives or describe unreasonable alternatives.”
(Gov. Code, § 11346.2, subdivision (b)(4)(C).)
In his initial statement of reasons, under the heading “Reasonable
Alternatives Considered or Agency’s Reasons for Rejecting Those
Alternatives,” the Superintendent stated that “[n]o other alternatives were
presented to or considered by the SSPI.” Wendz interprets this statement as
the Superintendent admitting that he did not consider alternatives, and she
argues that the failure to do so is “inexcusable” because section 54444.2,
subdivision (a)(5) already requires the Superintendent to “ ‘establish and
implement training programs for members of the statewide and [regional]
parent advisory councils to enable them to carry out their responsibilities.’ ”
The Superintendent disagrees that he failed to substantially comply with
Government Code section 11346.2, because there were no reasonable
alternatives to consider, and he was not obligated to artificially construct or
describe unreasonable alternatives. Based on the record before us, we agree
with the Superintendent.
“Substantial compliance with a statute is dependent on the meaning
and purpose of the statute.” (Freeman v. Vista de Santa Barbara Associates
LP (2012) 207 Cal.App.4th 791, 793.) Thus, “noncompliance [with the APA]
is insubstantial, or ‘harmless,’ only where it does not compromise any
‘reasonable objective’ of the APA.” (Sims, supra, 216 Cal.App.4th at p. 1073.)
The objectives of the APA are “ ‘to provide a procedure whereby people to be
affected may be heard on the merits of the proposed rules’ ” and to ensure
60
“ ‘meaningful public participation in the adoption of administrative
regulations by state agencies.’ ” (Ibid.)
Here, there is no evidence in the record that any reasonable
alternatives to the regulations existed at the time the Superintendent issued
his initial statement of reasons. Thus, his failure to describe any reasonable
alternatives in his initial statement of reasons does not constitute substantial
noncompliance with the APA because there is no evidence that the failure
deprived individuals or groups affected by the regulations of meaningful
participation in the adoption of the regulations. (Sims, supra, 216
Cal.App.4th at p. 1073; see also People v. Superior Court (Zamudio) (2000) 23
Cal.4th 183, 207–208 [trial court’s failure to comply with Penal Code section
1016.5 by advising a defendant of only some of the potential immigration
consequences of accepting a guilty or no contest plea was not substantial
noncompliance: “if defendant’s circumstances at the time of his 1992 plea did
not, in fact, allow for the [omitted potential immigration consequence], the
advisements he received . . . would have been in substantial compliance with
the requirements of section 1016.5, in that they would have informed
defendant of the only consequences pertinent to his situation”].)
Wendz points to subdivision (a)(5) of section 54444.2 as evidence of the
existence of a reasonable alternative, but that section does not on its face
provide a reasonable alternative to the regulations. It states, “The
Superintendent and each operating agency shall establish and implement
training programs for members of the statewide and operating agency parent
advisory council to enable them to carry out their responsibilities.” (§ 54444.2,
subd. (a)(5), italics added.) The RPAC members’ responsibilities are set forth
in section 54444.4, and include the establishment of migrant education
program goals, objectives, and priorities and advice on the selection,
61
development, and reassignment of migrant education program staff. (§
54444.4, subd. (a)(1), (3).) At most, those responsibilities are only
tangentially related to the issues the regulations seek to address—non-
compliance with the statutory requirement of two-thirds parent membership,
limited opportunities for parent participation on regional councils, and
cooperative governance among councilmembers and with operating agencies.
Wendz does not explain how the training required under subdivision (a)(5) of
section 54444.2 would be “less burdensome and equally effective” as the
regulations adopted by the Superintendent in addressing those issues. (Gov.
Code, § 11346.2, subd. (b)(4)(A); American Chemistry Council v. Department
of Toxic Substances Control (2022) 86 Cal.App.5th 146, 198 [finding that an
alternative proposal was not reasonable because it “would not be equally
effective in achieving the purpose of the statute”].) The Superintendent
therefore was not required to describe this alternative in the initial
statement of reasons.
b. Final Statement of Reasons
The Superintendent’s final statement of reasons also does not identify
any specific alternatives he considered; it states only that all alternatives he
considered were “in the form of public comments” and that “no alternative
would be more effective and less burdensome to affected private persons than
the proposed regulations or would be more cost effective to affected private
persons and equally effective in implementing the statutory policy of other
provisions of law.”
Government Code section 11346.9 requires that the agency’s final
statement of reasons include “[a] determination with supporting information
that no alternative considered by the agency would be more effective in
carrying out the purpose for which the regulation is proposed, and would be
62
as effective and less burdensome to affected private persons than the adopted
regulation, or would be more cost effective. . . to affected private persons and
equally effective in implementing the statutory policy or other provision of
law.” (Gov. Code, § 11346.9, subd. (a)(4).) Although Government Code
section 11346.9 does not specify that alternatives must be reasonable to be
considered, the parties’ arguments proceed on that assumption. We therefore
accept the premise that only reasonable alternatives must be considered for
purposes of this appeal.
Wendz argues that the Superintendent’s final statement of reasons
does not comply with Government Code section 11346.9 because he failed to
specifically mention or justifiably reject an alternative of training programs
proposed by a public comment. The public comment she is referring to states
that the “concerns about bringing new voices to the RPACs” could “be
adequately addressed with governance guidance and/or training as opposed
to regulatory mandates.”
As we have indicated, however, an agency need not respond to every
alternative proposal presented by the comments if those proposals are not
reasonable. Here, beyond the single, vague reference to “training,” the
comment cited by Wendz does not provide a specific way to deal with the
problem of limited opportunities for new parent participation in the RPACs.
(See American Min. Congress v. E.P.A. (9th Cir. 1992) 965 F.2d 759, 771
[holding that under the federal APA, “an agency need only respond to
‘significant’ comments, i.e., those which raise relevant points and which, if
adopted, would require a change in the agency’s proposed rule”];
International Ladies’ Garment Workers’ Union v. Donovan (D.D.C. 1983) 722
F.2d 795, 815–816 [agency failed to consider “substantial testimony” and
“[s]pecific proposals” for alternative actions].) In other words, the comment
63
does not, on its face, demonstrate that the alternative proposal of training
will effectively address the issues raised by the Superintendent. (American
Chemistry Council v. Department of Toxic Substances Control, supra, 86
Cal.App.5th at p. 198; Wyoming v. USDA (10th Cir. 2011) 661 F.3d 1209,
1244 [holding that alternatives that do not accomplish the objective of the
proposed action are not reasonable].) Wendz has the burden of
demonstrating error (People v. Giordano (2007) 42 Cal.4th 644, 666), but she
does not explain how this alternative proposal is reasonable other than again
citing section 54444.2, subdivision (a)(5). We therefore cannot fault the
Superintendent for failing to expressly address it in his final statement of
reasons.
Moreover, the Superintendent determined that specific rules were
needed to ensure effective parental involvement in the RPACs throughout the
state. As the Superintendent pointed out, local RPAC bylaws varied widely
throughout the state, resulting in the dominance of nonparent members and
many RPACs’ noncompliance with the MEP’s statutory requirements. Thus,
the Superintendent determined—reasonably in our view—that establishing
clear rules for governance of the RPACs would ensure that they are meeting
statutory requirements and would “safeguard” the effectiveness of parental
involvement on the councils. Because the Superintendent adequately
explained its decision to adopt regulations, its failure to expressly address the
proposed alternative to regulations—training programs—does not constitute
substantial noncompliance with the APA.13
13We need not and do not address respondents’ argument that the trial
court properly found that training programs were not a reasonable
alternative because the RPACs had no authority to implement election
procedures.
64
Accordingly, Wendz has not shown that the Superintendent failed to
substantially comply with the APA’s requirement to consider reasonable
alternatives.
III. CONCLUSION
We conclude that, except for the prohibition on alternates and the
portions of the regulations the trial court previously invalidated, the
regulations adopted by the Superintendent are valid. The petition for a writ
of mandate is granted to the extent it seeks to compel respondents to refrain
from enforcing the prohibition on alternates in subdivision (a) of California
Code of Regulations, title 5, section 12011 and the portions of the regulations
the trial court invalidated—subdivision (c) of California Code of Regulations,
title 5, section 12014 and the phrase “[t]o the extent possible” in subdivision
(d) of California Code of Regulations, title 5, section 12019. In all other
respects, the petition for a writ of mandate is denied. The parties should bear
their own costs.
65
SWOPE, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A162648P

Judge of the San Mateo County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
66
San Francisco Superior Court
Judge Richard B. Ulmer
Munger, Tolles and Olson, Rohit K. Singla, Richard T. Johnson; California
Rural Legal Assistance, Cynthia L. Rice; and Lawyers’ Committee for Civil
Rights- San Francisco, Deborah Escobedo for Plaintiff and Appellant.
California Department of Education, Amy Bisson Holloway, Virginia Jo
Dunlap and Terri A. McFarland for Defendants and Respondents.
67