LUCIA MAR UNIFIED SCHOOL DISTRICT v. HONIG (1987)

This is an appeal from an order denying a petition for a writ of mandate, declaratory relief and restitution.   We affirm.   Appellants are a number of central California school districts.   Respondents are the Commission on State Mandate, Bill Honig (State Superintendent of Public Instruction) and the State Department of Education.

FACTS

For some time the State of California has been operating special schools for children not educable in local schools (usually because of blindness, deafness or autism).   Between 1977 and July of 1979 each school district was required to make an annual payment to the Department of Education for each pupil from the district in attendance at a state-operated school.   Effective July 12, 1979, the Education Code sections which required local contributions were repealed, and the state took over the full cost of the state-operated schools.

On November 5, 1979, the voters added article XIIIB, section 6 to the state Constitution.   This article expressly forbids the state from mandating a new program or a higher level of service on any local government without reimbursement for costs to the local government.   The article became operative July 1, 1980.

In 1981 the Legislature added Education Code section 59300.   That law requires local school districts to pay 10 percent of the “excess annual cost” of educating any pupil attending a state operated school whose parent or guardian lives within the district.   No corresponding funding was provided.

Section 59300 does not set forth a procedure for collecting the 10 percent excess annual cost from the school districts.   Initially respondents Honig and the State Department of Education presented an invoice to the school district.   This method of collection resulted in nonpayments of $1.2 million.   Finding this unsatisfactory, the respondents began to deduct automatically the amount owed by the school district from the district's principal apportionment funds.

In November of 1984, appellant Lucia Mar filed a test claim with the Commission on State Mandates seeking reimbursement for costs.   The claim was that Education Code section 59300 mandated a new program or higher level of services within the meaning of article XIIIB of the state Constitution.   The commission denied the claim.

In June of 1985 appellants filed a petition for writ of mandate, declaratory relief and restitution seeking:  (1) an order declaring Education Code section 59300 void as violative of state Constitution, article XIIIB;  (2) an order to respondent Honig compelling restitution of all monies withheld in implementing section 59300;  (3) a writ of mandate ordering respondent Honig to operate the state school fund without regard to section 59300;  (4) a writ of administrative mandate ordering the respondent Commission of State Mandates to reverse its order denying appellants' claim.   The trial court denied appellants' petition.

DISCUSSION

Article XIIIB, section 6 of the state Constitution provides in pertinent part:  “Whenever the Legislature or any state agency mandates a new program or higher level of service on any local government, the state shall provide a subvention of funds to reimburse such local government for the costs of such program or increased level of service․”

 Appellants contend that Education Code section 59300 created a “new program or higher level of service” within the meaning of article XIIIB.   We disagree.   All section 59300 does is shift 10 percent of the excess cost of attending a state-operated school to the local school district.   The program or service offered is the state-operated school.   This is not a new service.   A shift in the funding of an existing program is not in itself a new program or higher level of service.  (Cf., 63 Ops.Cal.Atty.Gen. 700, 702 (1980) (increase in number of judges in an existing municipal court district at an increase in cost to local government is not a “new program or higher level of service” within the meaning of article XIIIB).)

 Appellants next contend that even if Education Code section 59300 were valid, the State Department of Education violated the collection procedure set forth in the statute.   Appellants assert that the statute envisioned a billing to be sent to each school district for payment, rather than a deduction of the amount owed from the district's principal apportionment funds.   Appellants give no support for their position.  Section 59300 merely provides that “the district ․ shall pay the school of attendance․”   The statute does not specify the method of collection or payment.   In the absence of such a specification, the method of collection is left to the reasonable discretion of respondents.   In light of the compliance problems experienced with the billing method, we cannot say that an automatic deduction from apportionment funds is unreasonable.

Because we uphold the validity of Education Code section 59300, we decline to decide whether restitution would be a proper remedy for appellants, or whether a writ of administrative mandate against the Commission on State Mandates is appellants' exclusive remedy.

The judgment is affirmed.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.