Sunday, March 4, 2012

Litigation Update

It has been quite some time since I wrote a blog post.  I remain very committed to open government, but I have to admit, sometimes when you're busy "doing the job", you forget to pull your head up from the work and communicate with those around you.  My sincere apologies for the lapse.

Kelly Toshach wrote a good summary recently of the current status of the litigation between LASD and BCS.  She posted it to the Facebook page for LASDvoices, and I'm reposting it here in case others haven't seen it.  I felt it was an excellent, non-partisan summary of the status of the litigation.  Thank you, Kelly, for such a clear summary.


Kelly Toshach 4:22pm Mar 2

I read LASD's brief filed Monday, and this is my understanding of it and of where the case stands currently:

--Summary of Case Through the Present--

BCS sued LASD over the 2009-2010 facilities offer. The Superior Court found in favor of LASD. BCS appealed parts of the Superior Court's ruling, letting stand the remaining parts (forfeiting any future challenge by not submitting argument on it in the appeal). The Court of Appeal issued a ruling, finding in favor of BCS on many points and in favor of the district on others. Afterward, the case returned to the Superior Court, where, according to BCS, the judge, Hon. Patricia Lucas, is to enter a judgement implementing the Court of Appeal findings. At the first hearing, a case management conference about the form of judgment, LASD put forth its position that the Court of Appeal's findings are about methodology and that the court did not in fact make a determination on the ultimate decision of whether the 2009-2010 offer complied with Proposition 39. BCS, on the other hand, argued that the Court of Appeals judgment means that the 2009-2010 was illegal and non-compliant. BCS entered a proposed judgment for the judge's consideration. LASD requested a hearing to brief the judge on its arguments for a different form of judgment. The judge tentatively scheduled this hearing, stating that she was unconvinced that she needed additional arguments about how to handle the Court of Appeal's direction. LASD filed its objections to the BCS proposed order on Monday, February 27. A summary of the brief follows below. It remains to be seen if the LASD briefing persuades the judge to conduct the hearing tentatively scheduled for March 19. BCS has until March 5 to file a brief in response to the LASD brief.

--Summary of the LASD Brief Regarding Form of Judgment--

On Monday, February 27, 2012, LASD filed its brief regarding form of judgement related to the 2009-2010 Facilities Offer.

The brief states that the 2009-2010 offer is what’s at issue. Although the 2009-2010 school year is past and a new facilities agreement is made each year, the Court of Appeal determined that the appeal isn’t moot because similar disputes over future facilities offers are likely and the case raises issues that are likely to happen again with other charter schools and school districts. LASD agrees that it’s appropriate to issue a judgement that outlines the Court of Appeal’s opinion on methodology for determining a facilities offer.

LASD's objections to BCS’s proposed judgement fall into the following categories:

1. The judgment shouldn’t address matters beyond the 2009-2010 offer.

BCS’s amended writ petition and complaint filed on August 27, 2009 limits the issues to the 2009-2010 final offer only. The court’s judgement should describe what LASD should have done, and not what it shall do in the future. Factors for reasonable equivalence determinations for years subsequent to 2009-2010 were not before the Court and Court of Appeal, so the Court of Appeal’s opinion can’t be interpreted as a determination of offers for other years. Further, if BCS seeks to challenge any other facilities offer, it should take separate legal action.

2. The judgment shouldn’t include points on which the Court of Appeal did not decide.

The Court of Appeal did not reach a determination on whether the 2009-2010 offer actually met the standard of reasonable equivalence. The Court of Appeal instead identified flaws in LASD’s methodology. Reasonable equivalence isn’t determined by the single criterion of average acreage per student. Instead, " 'reasonable equivalence' is a complex analysis that requires consideration of multiple factors and over which the District has the discretion to exercise judgment." The Court of Appeal noted “[w]e disagree with Bullis’s contention that ‘site size by itself shows that ]it] has not received “reasonably equivalent” facilities.’

3. The judgment should reflect the parts of the action on which LASD prevailed:

- Refusal to provide facilities for the seventh grade was permissible because BCS had no intent to offer 7th grade during the 2009-2010 school year.

- Charging a pro rata fee for the space occupied by the BCS multi-use room is permissible.

- Imposing all-or-nothing conditions in its facilities offer is permissible.

- Selection of comparison group schools was not in violation of Proposition 39.

LASD entered its own proposed judgement to address its objections.

Timeline: Lawsuit over 2009-2010 Facilities Offer

2/16: Case Management Conference at Superior Court regarding judgment after Court of Appeal ruling

2/16: LASD filed objections to the BCS proposed order

2/27: LASD completed brief filing on form of judgment

3/5: BCS to file brief in response to LASD brief

3/19: Hearing for briefing. (Scheduled for the convenience of the court. The judge may decide she doesn't need a briefing.)