Shapiro Writ No 2 Rev 1

8/14/2019 Shapiro Writ No 2 Rev 1

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MEMORANDUM IN SUPPORT OF WRIT PETITION 1

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LAW OFFICES OF ROBERT P. BAKERROBERT P. BAKER (SBN 75748)c/o Glickfeld, Fields & Jacobson9401 Wilshire BoulevardSuite 525Telephone: (310) 550-7222Facsimile: (310) 550-6222

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CENTRAL DISTRICT

CHERYL SHAPIRO, et al,

Petitioners,

vs.

LOS ANGELES UNIFIED SCHOOLDISTRICT., et al.

Respondents.

)

)))))))))))

)

CASE NO.:

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OF:

1) STAY OR ALTERNATIVE WRIT; AND2) VERIFIED WRIT PETITION

ALSO REQUEST FOR ATTORNEYS FEESAND COSTS EXCEEDING $30,000.

[CCP, Secs. 1085, 1094.5, 1021.5 etc.]

Date: July 13, 2009Time 8:30 amPlace: Department 85

Petition filed: July 9, 2009


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Petitioners submit the following Memorandum of Points and Authorities in Support of their Wr

Petition, Request for Stay or Alternative Writ, and Request for Attorneys Fees and Costs.

I. STATEMENT OF FACTS

This case seeks review of the approval on July 1, 2009 of the Board of Education of the Los

Angeles Unified School District (Board) to convert Birmingham High School to a charter

school. The approval, following a so-called public hearing on June 18, 2009, constituted a failu

by the Board to exercise its ministerial duty to deny the conversion Petition. The approval was

also in excess of the Boards jurisdiction in that it lacked the power to review the petition, an

abuse of discretion, arbitrary and capricious in that: a) it acted on ex parte evidence received fro

proponents the night before the vote and 12 days AFTER the hearing, as well as b) the

constituency of the Board changed AFTER the hearing with two members being added who did

not participate in the hearing; and a failure to exercise the ministerial duty of the Board to rejec

the conversion.

The basis for the Writ Petition is four fold. First, the Board lacked jurisdiction to review the

petition because before submission to the Board the petition had not BY A PROPER PROCESS

been signed by 50% of the permanent status teachers of Birmingham High- the only vote that

matters under Cal. Educ. Code, Sec. 47605. The defects in the petition signing process were

numerous. The election fraud included intimidation and harassment of teachers; retaliation; lac

of secret ballot; inflation of the electorate with ineligible voters; reporting of false results to the

Board by the Charter Division of the Board (Division); and prevention of assembly and

distribution of information by charter opponents. Lacking the proper acquisition of signatures b

50% of the permanent status teachers, the Board lacked any power to review the conversion

Petition.

Second, the conversion petition clearly demonstrated a manifest inability to implement the

proposed educational program because the proposed charter school is insolvent-a fact that the

proponents hid by distributing a false and fraudulent one page budget summary until after the


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teachers voted. Later, a line item budget was released. It began to be clear at this point that the

proposed school was insolvent. It prompted some to withdraw their signatures, but the Divisio

refused to allow this. The budget continued to change materially as the Division confronted

petitioners with their insolvency. Later assumptions abandoned a commitment to health benefit

signaled a plan to fire current teachers and replace them with younger employees, relied upon

outsourcing almost every service, etc.- things for which no teacher had voted. But, the financial

issues revealed by the budget were deeper. There was a $5,000,000 line of credit assumed but

never demonstrated. There was an accounting error that falsely inflated year end income by

$2,500,000; the $1,500,000 legally required reserve was not accounted for; state lottery income

was assumed in year one but cannot be delivered until year two; and there is no budget for a CF

(who is needed). In short, this school will be millions in the red in year one and every year afte

that. The fact that the Board could not figure this out speaks to the rushed manner in which the

agenda was pursued, or perhaps something worse is at play.

Third, there was no plan whatsoever proposed to achieve racial balance. Element 7 of the petit

relies on the Magnet School on campus to assist in achieving racial balance. However, the

Magnet School has opted out of the charter and for that reason the Division ordered the

proponents to remove all reliance upon it from their proposal. They failed to do so as regards

racial balance as such would be fatal.

Lacking any finances or plan for racial balance, the petition failed miserably to meet two of the

criteria of Education Code, Sec. 47605 for approval of charter schools. As a matter of law, there

was only one vote possible for the Board- rejection of the charter conversion.

Fourth, there were also defects in the hearing that deprived opponents of a fair trial.

Specifically, the Charter School Division of the Board admitted for six months that the petition

was defective and kept postponing the vote. Among the defects were the failure to show solven

and racial balance. A public hearing was held on June 18, 2009. There was zero support among


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the Board for the petition. On June 30, 2009, apparently, information was submitted to the

Division and Board ex parte by proponents that changed the recommendation of the Division to

approval. But, there was no opportunity for opponents to receive or be heard concerning this

information- no one but proponents and the Board have seen it. The next day (July 1, 2009) the

matter was summarily voted on by the Board, and approved. Opponents were unable to review

analyze this new data or to show that the petition remained defective. This alone shows that th

Board acted arbitrarily and capriciously and calls forde novo review by this court. Moreover, tw

new members of the Board knew nothing of what went before and had not participated in the

public hearing. They had no basis for voting at all.

In short, the evidence will show that this conversion process has been rigged from Day One.

II. NEED FOR IMMEDIATE RELIEF

A. By Teachers

The UTLA/LAUSD collective bargaining agreement gives teachers 30 days to opt in or out of t

charter school upon conversion. [CBA, Sec. 4 ]. Respondents are requiring that all teachers at

Birmingham opt in or out by JULY 16, 2009, thus creating an emergency that requires the

immediate attention of the court. If the Petitioners/ teachers and other teachers opt out, they wil

lose the site seniority that many of them have accumulated at Birmingham. This site security

entitles them to many preferences such as course selection, room assignment, and other

employment on campus. They will be forced to take whatever spot opens up within the district

for their credential before September. Cheryl Shapiro, Tina Gerald, and others have serious

disabilities that require reasonable accommodations as stated in their declarations. This will m

it difficult to place them elsewhere. The move alone will be threatening to the health of Cheryl

Shapiro. Coates will gleefully replace these adversaries of hers at Birmingham with other

instructors. If the court then later reverses the charter conversion, what of all these changed

assignments?


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Many of the Birmingham teachers, including some of the Petitioners, are about to earn lifetime

health benefits. They MUST move elsewhere within the District to preserve them, giving up

positions of seniority and accommodations that make their life satisfactory.

If the Petitioners/teachers and other teachers risk opting in, they must take a leave of absence fr

LAUSD and would be putting their lifetime medical benefits in the hands of Coates who will h

to cut everything and anything to keep this charter school afloat. If Coates fired them for, say,

insubordination; something that nobody would put past her at this juncture, these Petitioners

would have to re-apply for positions within the LAUSD. There is no assurance when, if and

where they would be rehired in these difficult times. Cheryl Shapiro could die litigating over he

health benefits.

B. By Parents and Teachers

Others also need to know immediately what is happening at Birmingham. Students must enroll

August 16th. Parents therefore need correct information well before then.

C. By Respondents

LAUSD needs to know whether Birmingham is being taken off its books. The charter propone

also need to proceed if they are starting operations this year.

The simple fact is that there was not a fair election. Too many people voted (86 are qualified bu

126 votes were reported to the Board), were allowed to influence the vote, intimidated voters et

The proponents threatened, intimidated and assaulted opponents. The election was also infecte

by fraud in the budget analysis and other data. Opponents were not allowed to disseminate

information. The 50% consent by teachers is VOID. Thereafter, two of the criteria were not m

1) the plan cannot be implemented because the school is insolvent; and 2) there is no plan for

achieving racial balance. Clearly, this wine should be put back in the bottle for another year.

There should be another election in which Coates is not allowed to participate in any manner.


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b) it adjudicates whether respondent acted without or in excess of jurisdiction, or in an abuse of

discretion; afforded a fair trial; acted in the manner prescribed by law and/or whether there is

substantial evidence supporting the findings;

c) the court may command respondent to set aside the order or decision or to reconsider it, or to

take such further action as enjoined by law; and

d) the court may stay the decision of the agency.

Of course, stays and alternative writs are also authorized under traditional mandamus, prohibiti

and cert. Administrative mandamus was used by an assistant professor seeking review of denial

tenure. Pomona College v. Superior Court, 45 Cal.App.4th 1716 (1996). It was the chosen writ t

seek review of rejection of an application for a permit to establish a bank branch. Beverly Hills

Federal Savings and Loan Assoc.v. Superior Court, 259 Cal.App.2d 306 (1968).

B. THE BOARD EXCEEDED ITS JURISDICTION AND ABUSED ITS DISCRETION IN

REVIEWING THE CHARTER PETITION BECAUSE THE NARROW VOTE IN FAVO

OF THE CHARTER SCHOOL IS INVALID

1. Education Code Section 47605(b) Requires a Vote of 50% of the Permanent Status Teachers

Currently Employed at the Public School to be Converted to a Charter School to Vote in Favor

the Proposed Charter Conversion

Cal. Educ. Code, Sec. 47605 began as an initiative in 1992 and has been amended 10 times.

Subsection (a)(2) provides that any person may circulate a petition to convert an existing publi

school to a charter school. The petition may be submitted to the governing board of the school

district for review after the petition has been signed by not less than 50% of the permanent statu

teachers currently employed at the public school to be converted.

The Board failed to adopt a preliminary construction of the statute upon which to proceed-no

definition of who could vote or how. While such an interpretation cannot make a pretense at

finality, its absence speaks volumes about the arbitrary and capricious nature of the Boards


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action.Bodinson Manufacturing C. v California Employment Commission, 17 Cal.2d 321,326

(1941).

There were 86 permanent status teachers at Birmingham in early December 2008. These

individuals are classified as R-1. The vote was 48-38 in favor. Yet, the petition was set up to be

signed, and all educators at Birmingham were encouraged to sign it. The vote reported to the

Board by the Division was 80 affirmative out of 126 eligible. This includes two persons no long

at Birmingham; three signatures that cannot be related to the roster at all; counselors; out of

classroom non-teachers; magnet personnel; temporary teachers; etc. The difference is relevant

because the Board is charged under Educ. Code, Sec. 47605(b) with considering the level of

support for the petition. Instead of accurately reporting 55.8% favorable (in a rigged election) t

Division reported a 63.5% majority in a fair election.

2. The Non-Secret, Ballot Under Risk of Job and Safety at Birmingham Was Fraudulent, Tainte

by Irregularity and Illegal.- 46 Ineligible Votes Were Recorded, 7 Withdrawn Approvals Were

Ignored

It is ironic that the United States is criticizing the elections of Honduras, Iran and Mexico when

cannot even conduct a fair vote on a charter school conversion in Los Angeles. Approximately

55.8% of those entitled to vote voted in favor of the conversion. Although the statutory scheme

for the establishment of charter schools is supported by state regulations (Cal. Educ. Code, Sec.

47605 and 5 CCR, Sec, 11967.5.1 et seq.) one area has fallen through the regulatory cracks. Th

is, there are no express regulations dealing with the manner in which teacher signatures in favo

the conversion of schools to charter schools may be collected. In this case, the Principal of

Birmingham and the proposed CEO of the Birmingham Charter, Marsha Coates, along with oth

proponents of the conversion, resorted to retaliation in the terms of employment, fraud, threats,

intimidation, the fraudulent inflation of the electorate followed by the false reporting of the

election results, the abuse of her power and other dirty tricks associated with Third World

Dictatorships, Communist countries and Muslim Theocracies.


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In early June, 2009, after giving teachers a fictional one-page budget for the proposed charter

school falsely showing it to be solvent, and after having falsely promised teachers their health

benefits would be protected, and before the truth could be discovered, Coates posted the petitio

for

to sign. Even in Iran there is a secret ballot-not so in Birmingham. Those opposed to the chart

conversion were harassed by proponents as set forth in the supporting declarations. Even in the

Russia there is an underground press- not so in Birmingham as literature opposed to the

conversion was not allowed on campus and opponents were threatened with arrest, including th

son of petitioner Myrna Fleming. Furthermore, opponents were threatened with and given

adverse job conditions for their opposition, much like in China.

3. The Board lacked the Power to Approve the Petition Whether or Not these Defects Were

Brought to Its Attention; But They Were

Shapiro and others advised the Board of the election abuses. Cortines himself expressed conce

over the allegations of abuse leveled at Coates and was disturbed that the charter conversion wa

being determined in such an atmosphere. Accordingly, the Board was well aware that the petiti

signing process was defective and it should not have proceeded with review of the petition.

Regardless, though, of what the Board knew and when it learned it, under Educ. Code, Sec.

47605, the Board DOES NOT HAVE THE JURISDICTION to review ANY conversion petition

without the 50% of the teachers signatures. Accordingly, its determination can be vacated, stay

and enjoined by this court.

4. The State of California Has a Compelling Interest in the Fairness of Elections and May

Interfere in Elections in Order to Make Certain They are Honest; State Action Here Constituted

Due Process and Common Law Violations

In the absence of specific regulations, fundamental fairness should guide the courts review of t

electoral process. The Cal. Election Code permits courts to interfere with the elections of priva

groups to the extent necessary to insure that they are fair.Eu v. San Francisco County Democra

Central Committee, 489 US 214 (1989); Green Party of California v. Jones, 31 Cal.App.4 th 747


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(1995). Also, the deprivation of procedural voting rights evident here was entangled with

excessive state action by virtue of the participation and direction of public employees making it

due process violation. Shoemaker v. County of Los Angeles 37 Cal. App 4 th 618 (1995. This wou

be a common law violation even without state action:Rosenblit v. Superior Court, 231 Cal. App

3d 1434 (1991): California courts have long recognized a common law right to a fair procedu

protecting individuals from arbitrary exclusion or expulsion from private organizations which

control important economic interests.

There is simply no way that this electoral process could pass muster. There were threats,

coercion, injuries, retaliation in employment, no secret ballot, improper franchising, falsely

reported results- every trick in the dirty trick book.

C. THE BOARD EXCEEDED ITS JURISDICTION AND ABUSED ITS DISCRETION I

APPROVING THE CHARTER PETITION

Once Coates got the election certified in Katherine Harris fashion, the conversion plan neede

to jump the 16 hurdles erected by Educ. Code, Sec. 47605 to ensure that pupils are well served

and that teachers and staff are cared for by the charter school. The most important factor is

arguably whether Petitioners are demonstrably unlikely to successfully implement the program

The CCRs require that the supporting documents include reasonable estimates of all anticipate

revenues and expenditures 5 CCR 1197.5.3(B)2; Present a budget that in its totality appear

viable Id at (B)4; and Demonstrate an understanding of the timing of the receipt of various

revenues. Id at (B)5. Proponents clearly failed on all counts. For months, the Division agreed,

continually sending back the petition for further review. During this process, the petition mutat

into something radically different from what the 48 eligible, though intimidated permanent statu

teachers had voted for. The truth, once the captive of a fanciful one page budget, began to leak

out, like blood from the scene of an accident. Two weeks after the teachers vote, the first line

item budget was finally released. It showed: 1) a mythical $5,000,000 line of credit; 2) a stupid

accounting error that placed the line of credit in the revenue column and the money needed to p

off principal in expenses; 3) a failure to account for the $1,500,000 in cash reserves required by


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(evidence attacked as hearsay); Kazensky v City of Merced, 65 Cal. App. 4 th 44 (1998) (Court

must exercise its independent judgment on the evidence before board to determine whether ther

has been abuse of discretion because substantial evidence in support of findings is lacking.)

D. THE BOARD ACTED ARBITRARILY AND CAPRICIOUSLY IN FAILING TO

AFFORD A FAIR HEARING TO CHARTER OPPONENTS SINCE THE INFORMATIO

UPON WHICH THE BOARD GRANTED THE PETITION WAS SUBMITTED TO THE

BOARDEX PARTE THE NIGHT BEFORE THE HEARING.

The Steven Shapiro Declaration shows that from early December 2008 when the narrow majori

of teachers allegedly signed the petition until June 30, 2009, the Division took the position that

petition was defective and had to be voted DOWN on the grounds of lack of financing and lack

a plan for racial balance. During the public hearing on June 18, 2009 there was no support on

Board for the charter petition because it had no financial solvency and no plan to achieve racial

balance. Yet, after reviewing some ex parte materials, or after something else of an ex parte

nature occurred, on the night on June 30th the Division noted receipt of material that changed its

recommendation to the Board that convinced the Division to recommend approval.

Additionally, on July 1, 2009 two NEW Board members who had not participated in the public

hearing admitted that they had not yet had a chance to review anything on the issue, but

nonetheless one of them voted to approve!!

This conclusively shows that Opponents were not given a fair hearing on the charter conversion

First, the Division and the Board reviewed new material at the eleventh hour that Petitioners ha

yet to see. This material caused a reversal on the two criteria as to which the proposal had

previously failedfinances and racial balance. Second, there were Board members who did n

vote on the facts, so there was NO hearing.

It is the definition of arbitrary and capricious that a decision is made on an ex parte basis witho

giving both sides the opportunity to confront, review and refute the evidence. One of the great

strengths of our court system is that it is adversarial! Where there is a lack of an opportunity to


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confront witnesses and cross-examine, or to participate in a contested hearing, the decision is

generally set aside by the court without further inquiry.In Ward v Fremont Unified School

District, 276 Cal. App 2d 313 (1969) a dismissal was sent to a probationary teacher without full

compliance with the procedures of Educ. Code, Sec. 13443. The dismissal was set aside by a w

of mandate for lack of due process and failure to afford statutory opportunity to cross-examine

witnesses. InPomona College v. Superior Court, 45 Cal. App 4 th 1716 (1996) the question was

also presented as to whether, at a dismissal hearing, whether the procedure followed at the hear

was sufficiently fair. The Board is required to hold a public hearing and to grant a petition for a

charter OR to make specific findings supporting denial. The requirement for that hearing impli

procedural and substantive fairness, neither of which occurred here-the two decision makers

considered nothing and the rest considered things that Petitioners have still not seen.

E. PETITIONERS SHOULD BE AWARDED ATTORNEYS FEES IN THE AMOUNT O

$25,000 AND COSTS IN THE AMOUNT OF $1750 UNDER CCP, SEC. 1021.5

An award of fees and costs under CCP, Sec. 1021.5 is appropriate on the ground that this

proceeding will confer a significant pecuniary and non-pecuniary benefit has been conferred up

a large class of persons by stopping Respondents for one year. The benefits are:

1) Petitioners will ensure that any Birmingham charter school is solvent, racially balanced and

well run by dedicated public minded individuals. Giving Respondents the opportunity to reflec

upon the wisdom of removing Coates before allowing the conversion is alone worthy of the

award.

2) Those who might sign their child up for the proposed charter school based upon mis-

apprehensions will be saved having that school go bankrupt or be racially unbalanced.

3) Teachers are saved having to run the gauntlet with Coates before July 16 th and making the

Hobsons Choice of whether to opt out of the illegal charter, only to have it fold due to insolven

4) The LAUSD will know whether Birmingham is coming off its books next term.

5) The charter proponents will know if they must gear up to begin operations next term.


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1) a new and accurate budget can be submitted in compliance with state law; 2) a plan to achiev

racial balance can be submitted in compliance with state law; 3) a plan for the holding of a fair

election by permanent status teachers at Birmingham is submitted to a referee appointed by the

court or the court itself, a plan that expressly excludes the participation of Marsha Coates, and

guarantees: a) the distribution of information on both sides of the question without fear of

retaliation, b) that only the qualified electorate will participate, c) that there will be no

intimidation of opponents, d) that there will be no retaliation in employment against opponents,

and e) that provides for a secret ballot.

Finally, it is appropriate that an award of attorneys fees and costs be awarded to Petitioners. Th

fee award should be pursuant to CCP, Sec. 1021.5 on the ground that a significant pecuniary an

non-pecuniary benefit has been conferred upon a large class of persons by stopping Responden

for one year. The benefits are:

1) Petitioners will ensure that any Birmingham charter school is solvent, racially balanced and

well run by dedicated public minded individuals.

2) Those who might sign their child up for the proposed charter school based upon mis-

apprehensions will be saved having that school go bankrupt or be racially unbalanced.

3) Teachers are saved having to run the gauntlet with Coates before July 16 th and making the

Hobsons Choice of whether to opt out.

4) The LAUSD will know whether Birmingham is coming off its books next term.

5) The charter proponents will know if they must gear up to begin operations next term.

6) The LAUSD and its Board will be responsible to the people of Los Angeles for running publ

hearings at which the public is allowed to review and consider the evidence upon which matter

are decided.

DATED: July 8, 2009 LAW OFFICES OF ROBERT P. BAKER


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By____________________________

Attorney for Petitioners

Shapiro Writ No 2 Rev 1

Documents

Transcript of Shapiro Writ No 2 Rev 1