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Court of Appeal, Second District, Division 6, California.

Francisco SALAZAR et al., Plaintiffs and Appellants, v. William D. DAWSON, as Acting Superintendent, etc., et al., Defendants and Respondents.

No. B066953.

Decided: March 25, 1993

Channel Counties Legal Services Ass'n, Robert K. Miller, M. Carmen Ramirez, Grant R. Specht, Oxnard, and Barbara Macri–Ortiz, Keene, Meta, Inc. and Peter Roos, San Francisco, for plaintiffs and appellants. Women Lawyers of Ventura County and Tina L. Rasnow, Thousand Oaks, as Amicus Curiae on behalf of plaintiffs and appellants. California Dept. of Educ., Joseph R. Symkowick, Gen. Counsel, and Joanne Lowe, Deputy Gen. Counsel, for defendants and respondents.

Here the issue is whether an injunction and writ of mandate, issued against respondent State education officials pursuant to our ruling that Education Code section 39807.5 (hereafter section 39807.5) violated the California Constitution, were properly vacated by the trial court due to the California Supreme Court's subsequent ruling that section 39807.5 is facially constitutional.  (Salazar v. Honig (1988) 200 Cal.App.3d 1576, 246 Cal.Rptr. 837 [review den. Sept. 1, 1988, and opn. ordered nonpub.]   (Salazar I );  Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 5 Cal.Rptr.2d 545, 825 P.2d 438 (Arcadia ).)   We conclude that the injunction and writ of mandate are still necessary, but must be modified.


Section 39807.5, permitting local school districts to charge students fees for school transportation, provides in pertinent part:  “When the governing board of any school district provides for the transportation of pupils to and from schools in accordance with the provisions of Section 39800, ․ the governing board of the district may require the parents and guardians of all or some of the pupils transported, to pay a portion of the cost of such transportation in an amount determined by the governing board.  [¶] The amount determined by the board shall be no greater than the statewide average nonsubsidized cost of providing such transportation to a pupil on a publicly owned or operated transit system as determined by the Superintendent of Public Instruction, in cooperation with the Department of Transportation․  [¶] The governing board shall exempt from these charges pupils of parents and guardians who are indigent as set forth in rules and regulations adopted by the board.”  (Emphasis added.)

We held in Salazar I that section 39807.5 violated both the free school guaranty and the equal protection clause of the California Constitution.   Our ruling was based on the undisputed evidence presented by appellant taxpayers that some school districts electing to charge students for transportation fees pursuant to the statute were not informing parents of the indigency fee waiver provision, or were not exempting all indigent pupils from the transportation charges as statutorily required.   The uncontradicted evidence further revealed that some children from indigent families who were charged a transportation fee, but could not afford to pay it, were unable to attend school.

From this factual record and our legal conclusion that school transportation “is a fundamental education activity ․ which is an integral part of California's system of free public education,” we held that section 39807.5 violated California's free school guaranty.   We further ruled that, since student transportation was encompassed within education as a fundamental interest, and section 39807.5 interfered with this interest by imposing disparate burdens on students according to their families' wealth, the statute violated California's equal protection clause.

The California Supreme Court denied review of Salazar I, but ordered our opinion depublished.   On remand, the Ventura County Superior Court ordered respondents to issue a legal advisory informing all school districts throughout California that section 39807.5 was unconstitutional and that student transportation fees could not be charged.

The subsequent Arcadia action was instituted by numerous school districts to determine the facial validity of the statute.   Some of these districts continued to charge students for transportation despite the Salazar advisory, while others of these had ceased assessing transportation fees.   The suit did not challenge the propriety of any particular application of the statute by school districts.  (Arcadia, supra, 2 Cal.4th at 256, 5 Cal.Rptr.2d 545, 825 P.2d 438.)

The superior court ruled that section 39807.5 facially violated the free school guaranty.   The Court of Appeal, Third District, reversed.

Our Supreme Court affirmed the Third District Court of Appeal, stating that it was not basing its decision on a factual record, and that the issue of whether the statute could be unconstitutionally applied was not before it.   The Court decided that requiring students to pay for transportation to and from school did not, without evidence that section 39807.5 could be unconstitutionally applied, violate either the free school guaranty or equal protection clause.  (Arcadia, supra, 2 Cal.4th at 255, 257, 264, 265, 267, 5 Cal.Rptr.2d 545, 825 P.2d 438.)   This decision was based on the Court's legal conclusions that (1) the free school guaranty did not protect noneducational services;  (2) school transportation “is simply not an educational activity,” and thus “the fee question is for a noneducational service;”  (3) section 39807.5 exempts indigent students from having to pay school transportation fees;  and (4) this exemption if properly administered provides indigent students with equal access to school transportation.  (Id., pp. 262–264, 266–267, 5 Cal.Rptr.2d 545, 825 P.2d 438.)

Subsequently, respondents herein filed a motion in the Ventura County Superior Court requesting that the injunction and writ of mandate issued pursuant to Salazar I be vacated.   The sole ground for this motion was the Supreme Court's ruling in Arcadia.   As in Salazar I, respondents presented no evidence concerning local implementation of section 39807.5's fee waiver provision.

Appellants herein opposed respondents' motion, reasoning that, since the Supreme Court in Arcadia specifically stated it was not dealing with the issue of improper application of the statute, its ruling that the statute was facially constitutional did not affect the Salazar I injunction except to modify its focus.   Appellants supported their opposition with the declarations submitted in the Salazar I proceedings detailing abuses by districts of section 39807.5's fee waiver policy and the effects of these abuses on indigent school children.   Appellants concluded that this evidence established the statute was being unconstitutionally applied.

Respondents replied that Salazar I “does not conclude that section 39807.5 was unconstitutional based on the application of facts on the record.”

The trial court agreed with respondents and granted their motion to vacate the injunction and writ, finding “[t]he Court of Appeal [in Salazar I ] did not rule on [an”] as applied [“] validity, but ruled only on the constitutionality of the section.”   This appeal followed.


Appellants contend that the Supreme Court's Arcadia decision does not require the vacation of the Salazar I injunction and writ of mandate.   We agree.

 Respondents and the trial court, in concluding that we did not address the issue of any unconstitutional application of section 39807.5, misinterpret Salazar I.   Nowhere in our decision did we rule the statute was “facially” unconstitutional.

Our Salazar I ruling was specifically based on a factual record which focused entirely on the unlawful use or nonuse of the statute's indigency fee waiver provision by some of the school districts electing to charge transportation fees.  Salazar I's facts are that some indigent school children in California are required to pay transportation fees because districts are not informing parents about the fee waiver provision, are not implementing an application procedure for the waiver, or are basing entitlement to the waiver on a families' receipt of welfare aid.   The Salazar I facts further reveal that some indigent students who cannot afford to pay transportation fees are not able to attend school.

It was the undisputed evidence of district abuses of the fee waiver policy, and the resultant discrimination against indigent students, that provided the rationale for our decision that section 39807.5 was unconstitutional.   Thus, the factual basis for our ruling was the statute's improper application.

We wrote in Salazar I that appellants' suit made two charges:  that section 39807.5 violated the California Constitution, and that the statute was being “unlawfully implement[ed].”  (ante, 200 Cal.App.3d p. 1576, 246 Cal.Rptr. 837.)   Also, “[i]t is in fact the administration and implementation of the statute which is being contested [by appellants], not its existence.”   (Id., p. 30.)   We further stated:  “According to undisputed evidence in the record, the nonpayment of [transportation] fees can prevent students from even getting inside the school building․  [¶] ․ As can ․ be seen from the record herein, the fee-waiver policy contained within section 39807.5 does not assure school attendance․  [Some] school districts appear to not be enforcing the fee-waiver provision, either by failing to inform the community about the provision, or by not adopting [waiver] application procedures.”   (Id., pp. 1585–86, 246 Cal.Rptr. 837.)

In contrast to the factual basis underlying Salazar I, the Supreme Court in Arcadia explicitly ruled that “[t]he challenge in this case is to the facial constitutionality of section 39807.5;  accordingly, we have no occasion to consider its constitutionality as it may be applied ․ [t]herefore, in this facial challenge we do not anticipate that any child will be unable to attend school as a result of a proper application of section 39807.5.”  (2 Cal.4th pp. 255, fn. 2, 264, fn. 11, 5 Cal.Rptr.2d 545, 825 P.2d 438.)   The Court further stated that the continued propriety of the Salazar I injunction must be separately litigated since “[t]his action does not directly interfere with the injunction ․ which ․ is still in effect.”  (Arcadia, supra, 2 Cal.4th p. 259, fn. 5, 5 Cal.Rptr.2d 545, 825 P.2d 438.)   The Supreme Court thus made it plain that it did not intend to set aside the injunction in Salazar I on the basis of section 39807.5's facial constitutionality.

 We therefore hold that, based on the evidence in Salazar I that section 39807.5's fee waiver mandate is being ignored by school districts, or if utilized by them is not being enforced uniformly or properly, the statute as it is being applied is violative of the California Constitution.1

 Disparate classifications placed on persons according to their wealth and affecting their fundamental right to an education are suspect and subject to strict scrutiny under the State's equal protection guaranty.  (Serrano v. Priest (1976) 18 Cal.3d 728, 765–766, 135 Cal.Rptr. 345, 557 P.2d 929.)   Such classifications are unconstitutional under the strict scrutiny standard unless the government can show a compelling interest and need therefor.  (Id., pp. 761–766, 135 Cal.Rptr. 345, 557 P.2d 929;  Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784–785, 87 Cal.Rptr. 839, 471 P.2d 487.)

Here, we find no compelling government interest or need;  the State cannot have any justification in allowing school districts to violate its own policy pursuant to section 39807.5 exempting indigent students from paying school transportation fees.

We next determine the appropriate remedy for the undisputed unconstitutional applications of section 39807.5's fee waiver provision.

 Respondents contend, as they did in Salazar I, that they have no oversight responsibility over district implementation of section 39807.5.  Their contention is unpersuasive.

Comite de Padres de Familia v. Honig (1987) 192 Cal.App.3d 528, 237 Cal.Rptr. 517, upon which they rely, is not relevant.   The case did not involve the rights of school children, but dealt with minority programs for teaching staff.

Moreover, Comite 's conclusion, that the State Board of Education has no enforcement powers over affirmative action employment programs in local school districts in the absence of an express duty specified in the relevant statutes, is narrow and simplistic.

That section 39807.5 has no express language concerning respondents' oversight duty does not mean such duty does not exist.   In Salazar I, we cited a plethora of legal authority giving respondents ultimate control over the lawful functioning of the State's public school system.2

 It further is illogical that, in enacting section 39807.5, the Legislature intended that districts could choose whether or not to apply the fee waiver provision, and if electing to apply it, could formulate their own independent criteria of the meaning of indigency.   The statute only makes it discretionary for school districts to charge transportation fees.   Its language is mandatory that districts “shall exempt from these charges pupils of parents and guardians who are indigent․”   Certainly, Arcadia can not by any stretch of the imagination be interpreted to authorize school districts to ignore section 39807.5's fee waiver policy, with the result of depriving some indigent children of their right to educational equality.   To the contrary, the Supreme Court expressly stated, “We emphasize that section 39807.5 provides that indigent students will not have to pay a [transportation] fee․”  (2 Cal.4th p. 264, fn. 11, 5 Cal.Rptr.2d 545, 825 P.2d 438.)  (Emphasis added.)

 Furthermore, the Education Code contains other authority making it redundant for the Legislature to have specified respondents' enforcement powers within section 39807.5.   The statute requires governing boards of school districts to exempt indigent students from paying transportation charges “as set forth in rules and regulations adopted by the board.”   Education Code section 35291 specifies that “[t]he governing board of any school district shall prescribe rules not inconsistent with law or with the rules prescribed by the State Board of Education, for the government and discipline of the schools under its jurisdiction.”   In turn, Education Code section 33031 provides that the State Board of Education “shall adopt rules and regulations not inconsistent with the laws of this state ․ for the government of the day and evening elementary schools [and] the day and evening secondary schools, ․”  Plainly from this authority, respondents must enact rules complying with section 39807.5, which school districts in turn must obey in formulating their own rules.

It is established that trial courts have the inherent power to vacate or modify an injunction where there has been a change in the law or facts or where the ends of justice would be served thereby.  (Inmates of Sybil Brand Institute for Women v. County of Los Angeles (1982) 130 Cal.App.3d 89, 111–112, 181 Cal.Rptr. 599.)   Here, no party has sought vacation or modification of the Salazar I injunction on the basis of alleged changed facts.   The only changed circumstance presented—the Arcadia decision—does not, as we have already stated, affect the facts supporting SalazarI.   Nor does Arcadia overrule our holding that respondents have oversight authority over school districts' implementation of section 39807.5.

 A court, in exercising continuing jurisdiction to achieve institutional reform, cannot terminate its jurisdiction until it is satisfied that the unconstitutional practices have been discontinued and there is no reasonable expectation that such practices will recur.  (Battle v. Anderson (10th Cir.1983) 708 F.2d 1523, 1538.)  “In ․ cases [against State institutions] the courts intervene, not simply to prevent isolated instances of misconduct, but rather to remove a threat to constitutional values posed by the manner of operation of the institution. [citations omitted.]   Accordingly, the court's remedies must be designed to achieve lasting institutional change. [citation and footnote omitted.]   The court's remedies typically take the form of prospective injunctions supported by continuing oversight to assure compliance․  [T]he remedial phase often extends well into the future, ․ [¶] ․ ‘The task is to remove the condition that threatens the constitutional values․   The court's jurisdiction will last as long as the threat persists.’ ”

 Based on the record here, an injunction and writ of mandate against respondents are still necessary and proper in the interests of justice in an amended form.

 For purposes of guidance to the trial court on remand, we emphasize that it is crucial, not only that respondents instruct districts charging transportation fees to utilize section 39807.5's fee waiver provision, but to direct that such districts implement the fee waiver provision uniformly and fairly.

 For instance, the facts in Salazar I reveal that some districts are basing entitlement to the fee waiver on the receipt of welfare assistance.   Section 39807.5 does not limit indigency to those receiving welfare aid.   Moreover, such classification does not cover parents and guardians who are not receiving public aid but whose income is under the national poverty line.  (Gov. Code, § 68511.3, subd. (a) [containing standards for determining legal proceedings in forma pauperis].)

 Furthermore, as demonstrated by some districts' lack of compliance with the legal advisory issued by respondents pursuant to the Salazar I injunction, on remand respondents must be ordered to immediately enact regulations which properly implement the fee waiver provision.

The Supreme Court stated in Arcadia that it is clearly in the public interest that school districts have a uniform understanding of the constitutional issues involving school transportation fees.  (2 Cal.4th p. 258, 5 Cal.Rptr.2d 545, 825 P.2d 438.)   As we have ruled herein and in Salazar I, school district policies and practices which violate section 39807.5's fee waiver policy are unconstitutional.

We reverse the trial court's order vacating the Salazar I injunction and writ of mandate.   The case is remanded to the superior court with directions to issue a judgment in accordance with our views expressed herein.

Costs on appeal are awarded to appellants.


1.   Respondents' petition for rehearing, attacking the sufficiency of appellants' evidence and our ability to refer to such evidence herein, is without merit on several well-established legal grounds.First, respondents' challenge is made for the first time in their petition for rehearing.   Respondents have voluntarily chosen to handle this case throughout its history on a legal and not factual basis, thus avoiding appellants' evidence showing school districts are ignoring or unlawfully applying section 39807.5's fee waiver provision.   For respondents to now change their position and refocus their energies on the factual issues is unfair to appellants, the trial court, and this court.  (Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 638, 158 Cal.Rptr. 178.)   Moreover, any argument as to points not raised in the trial court is waived on appeal.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 307, p. 317;  Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 372, 138 Cal.Rptr. 155.)   This is particularly true regarding objections to evidence.  (Evid. Code, § 353;  People ex rel. Dept. of Public Works v. Alexander (1963) 212 Cal.App.2d 84, 98, 27 Cal.Rptr. 720.)   Respondents have failed to object to the adequacy of appellants' evidence in two trial court proceedings and in two appeals.Second, our opinion in Salazar I was depublished but affirmed by the Supreme Court.   Once the validity of a judgment is determined, it is no longer subject to collateral attack.  (Beckstead v. International Industries, Inc. (1982) 127 Cal.App.3d 927, 934, 179 Cal.Rptr. 767, citing Geibel v. State Bar (1939) 14 Cal.2d 144, 147–148, 93 P.2d 97.)   Respondents' petition for rehearing constitutes an improper collateral attack on Salazar I.Third, the doctrine of the law of the case allows us herein to rely on decisions we made in Salazar I.  (People v. Mattson (1990) 50 Cal.3d 826, 882, 268 Cal.Rptr. 802, 789 P.2d 983.)   The rule, applying to both criminal and civil matters, is:  where upon an appeal an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal.  (People v. Shuey (1975) 13 Cal.3d 835, 841, 120 Cal.Rptr. 83, 533 P.2d 211.)   Although the rule is concerned with issues of law and not fact, whether a given issue is subject to the rule depends on whether the issue is variable or stable in nature.  (Id., p. 842, 120 Cal.Rptr. 83, 533 P.2d 211.)   Thus, if a prior appellate decision relates to a matter of fact (as our acceptance of the truth of appellants' uncontradicted evidence in Salazar I ) and the evidence is the same on the second appeal (as it is in the second appeal in this case) the decision of the appellate court is conclusive.  (Ibid.)  Again, the nature of appellants' evidence is unchanged throughout the course of these proceedings due to respondents' failure to concern itself with the facts.   As such, our decision in Salazar I that noncompliance by school districts with section 39807.5 exists is conclusive and entitled to application of the law of the case rule.Although the law of the case rule may be departed from in the interest of justice (People v. Shuey, supra, 13 Cal.3d pp. 845–846, 120 Cal.Rptr. 83, 533 P.2d 211), in view of respondents' procrastination in addressing the factual issues involved in this case, no substantial injustice would result even if we were to disregard our prior factual determinations in Salazar I.

2.   That authority was recently confirmed by the Supreme Court in Butt v. State of California (1992) 4 Cal.4th 668, 15 Cal.Rptr.2d 480, 842 P.2d 1240.   The Butt case involved the issue of “[w]hether the State has a constitutional duty, aside from the equal allocation of educational funds, to prevent the budgetary problems of a particular school district from depriving its students of ‘basic’ educational equality.”   (Id., p. 674, 15 Cal.Rptr.2d 480, 842 P.2d 1240.)   The Court ruled that State education officials had the duty to intervene to protect the rights of school children, even to the extent of assuming control over a district's fiscal affairs.  (Id., pp. 688, 692, 696, 697, 703–704, 15 Cal.Rptr.2d 480, 842 P.2d 1240.)   The Court based this duty on the importance of education to society and the State's constitutional obligation to control California's public schools in order to ensure basic educational equality.  (Id., pp. 680–681, 683, 685, 688–689, 692, 696, 703–704, 15 Cal.Rptr.2d 480, 842 P.2d 1240.)  “It ․ [is] well settled that the California Constitution makes public education uniquely a fundamental concern of the State and prohibits maintenance and operation of the common public school system in a way which denies basic educational equality to the students of particular districts․  [¶] ․   The State itself, as the entity with plenary constitutional responsibility for operation of the common school system, had a duty to protect District students against loss of their right to basic educational equality.   Local control of public schools was not a compelling interest which would justify the State's failure to intervene.”  (Id., pp. 685, 704, 15 Cal.Rptr.2d 480, 842 P.2d 1240.)

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.