LAW OFFICES OF ROBERT P.

BAKER
1 ROBERT P. BAKER (SBN 75748)
2 c/o Glickfeld, Fields & Jacobson
9401 Wilshire Boulevard
3 Suite 525
Telephone: (310) 550-7222
4 Facsimile: (310) 550-6222
5 Attorneys for Petitioners
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
FOR THE COUNTY OF LOS ANGELES
8
CENTRAL DISTRICT
9

10 CHERYL SHAPIRO, et al, ) CASE NO.:

)
11 ) MEMORANDUM OF POINTS AND
Petitioners, ) AUTHORITIES IN SUPPORT OF:
12
)
13 vs. ) 1) STAY OR ALTERNATIVE WRIT; AND
) 2) VERIFIED WRIT PETITION
14 LOS ANGELES UNIFIED SCHOOL )
DISTRICT., et al. ) ALSO REQUEST FOR ATTORNEYS’ FEES
15 ) AND COSTS EXCEEDING $30,000.
Respondents. )
16
) [CCP, Secs. 1085, 1094.5, 1021.5 etc.]
17 )
Date: July 13, 2009
18 Time 8:30 am
Place: Department 85
19
Petition filed: July 9, 2009
20

21

22

23

24

25

26

27

28

MEMORANDUM IN SUPPORT OF WRIT PETITION 1

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

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

3 I. STATEMENT OF FACTS

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

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

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

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

8 also in excess of the Board’s jurisdiction in that it lacked the power to review the petition, an

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

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

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

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

13 the conversion.

14

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

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

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

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

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

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

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

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

23 50% of the permanent status teachers, the Board lacked any power to review the conversion

Petition.
24

25
Second, the conversion petition clearly demonstrated a manifest inability to implement the
26
proposed educational program because the proposed charter school is insolvent-a fact that the
27
proponents hid by distributing a false and fraudulent one page budget summary until after the
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 2

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

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

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

4 petitioners with their insolvency. Later assumptions abandoned a commitment to health benefits,

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

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

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

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

9 $2,500,000; the $1,500,000 legally required reserve was not accounted for; state lottery income

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

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

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

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

14

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

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

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

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

19 racial balance as such would be fatal.

20

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

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

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

24
Fourth, there were also defects in the hearing that deprived opponents of a “fair trial.”
25
Specifically, the Charter School Division of the Board admitted for six months that the petition
26
was defective and kept postponing the vote. Among the defects were the failure to show solvency
27
and racial balance. A public hearing was held on June 18, 2009. There was zero support among
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 3

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

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

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

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

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

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

7 Board acted arbitrarily and capriciously and calls for de novo review by this court. Moreover, two

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

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

10

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

12 II. NEED FOR IMMEDIATE RELIEF

13 A. By Teachers

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

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

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

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

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

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

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

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

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

23 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
24
instructors. If the court then later reverses the charter conversion, what of all these changed
25
assignments?
26

27

28

MEMORANDUM IN SUPPORT OF WRIT PETITION 4

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

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

3 positions of seniority and accommodations that make their life satisfactory.

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

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

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

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

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

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

11 health benefits.

12

13 B. By Parents and Teachers

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

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

16

17 C. By Respondents

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

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

20

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

22 126 votes were reported to the Board), were allowed to influence the vote, intimidated voters etc.

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

by fraud in the budget analysis and other data. Opponents were not allowed to disseminate
24
information. The 50% consent by teachers is VOID. Thereafter, two of the criteria were not met:
25
1) the plan cannot be implemented because the school is insolvent; and 2) there is no plan for
26
achieving racial balance. Clearly, this wine should be put back in the bottle for another year.
27
There should be another election in which Coates is not allowed to participate in any manner.
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 5

 1

2 There is no plain, speedy or adequate remedy at law. All of these parties need answers

3 immediately or face damage and uncertainty that the law should not countenance.

4 III. ARGUMENT

5 A. A WRIT OF TRADITIONAL OR ADMINISTRATIVE MANDATE APPEARS TO BE

6 THE CORRECT REMEDY ALTHOUGH PETIONERS WOULD NOT REFUSE ANY

7 WRIT

8 Since the Board has completed its approval process, prohibition does not seem correct, and

9 certiori is for courts. Mandamus is the method used to review actions by state or local boards and

10 agencies. If the action is considered quasi- judicial then administrative mandamus is the route for

11 review. If the action is more akin to quasi- legislative the traditional mandamus is used.

12

13 Which is the case here is a matter of perspective. One could easily say that in applying the criteria

14 of Educ. Code, Sec. 47605, holding a hearing, supposedly taking evidence, and finding that the

15 Petition met the criteria, the Board was acting in a quasi judicial function. Then again, one could

16 look at the outcome and say that converting a school to a charter school is a quasi-legislative act.

17 Petitions come down on the side of quasi-judicial action and belief that administrative mandamus

18 is the correct remedy, but this may be dancing on the head of a pin. City of Santa Cruz v Local

19 Agency Formation Commission of Santa Cruz County, 76 Cal.App.3d 381 (1978) (traditional

20 mandamus reviews quasi-legislative acts of administrative agency; administrative mandamus

21 reviews quasi-judicial acts).

22

23 Administrative mandamus is governed by CCP, Sec. 1094.5. A lengthy statute, the important

points are that it authorizes:

24
a) inquiring as to the validity of any final administrative order made as the result of a hearing
25
required by law at which evidence is required to be taken;
26

27

28

MEMORANDUM IN SUPPORT OF WRIT PETITION 6

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

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

3 substantial evidence supporting the findings;

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

5 take such further action as enjoined by law; and

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

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

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

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

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

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

13

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

15 REVIEWING THE CHARTER PETITION BECAUSE THE NARROW VOTE IN FAVOR

16 OF THE CHARTER SCHOOL IS INVALID

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

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

19 the Proposed Charter Conversion

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

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

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

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

teachers currently employed at the public school to be converted.”

24

25
The Board failed to adopt a preliminary construction of the statute upon which to proceed-no
26
definition of who could vote or how. While such an interpretation cannot make a pretense at
27
finality, its absence speaks volumes about the arbitrary and capricious nature of the Board’s
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 7

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

2 (1941).

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

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

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

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

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

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

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

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

12 Division reported a 63.5% majority in a fair election.

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

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

15 Ignored

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

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

18 55.8% of those entitled to vote voted in favor of the conversion. Although the statutory scheme

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

20 47605 and 5 CCR, Sec, 11967.5.1 et seq.) one area has fallen through the regulatory cracks. That

21 is, there are no express regulations dealing with the manner in which teacher signatures in favor of

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

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

proponents of the conversion, resorted to retaliation in the terms of employment, fraud, threats,
24
intimidation, the fraudulent inflation of the electorate followed by the false reporting of the
25
election results, the abuse of her power and other dirty tricks associated with Third World
26
Dictatorships, Communist countries and Muslim Theocracies.
27

28

MEMORANDUM IN SUPPORT OF WRIT PETITION 8

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

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

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

4 for

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

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

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

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

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

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

11

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

13 Brought to Its Attention; But They Were

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

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

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

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

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

19 47605, the Board DOES NOT HAVE THE JURISDICTION to review ANY conversion petition

20 without the 50% of the teachers’ signatures. Accordingly, its determination can be vacated, stayed

21 and enjoined by this court.

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

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

Due Process and Common Law Violations

24
In the absence of specific regulations, fundamental fairness should guide the court’s review of this
25
electoral process. The Cal. Election Code permits courts to interfere with the elections of private
26
groups to the extent necessary to insure that they are fair. Eu v. San Francisco County Democratic
27
Central Committee, 489 US 214 (1989); Green Party of California v. Jones, 31 Cal.App.4th 747
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 9

 1 (1995). Also, the deprivation of procedural voting rights evident here was entangled with

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

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

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

5 3d 1434 (1991): “California courts have long recognized a common law right to a fair procedure

6 protecting individuals from arbitrary exclusion or expulsion from private organizations which

7 control important economic interests.”

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

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

11 reported results- every trick in the dirty trick book.

12 C. THE BOARD EXCEEDED ITS JURISDICTION AND ABUSED ITS DISCRETION IN

13 APPROVING THE CHARTER PETITION

14 Once Coates got the “election certified” in Katherine Harris fashion, the conversion plan needed

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

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

17 arguably whether Petitioners are “demonstrably unlikely to successfully implement the program.”

18 The CCRs require that the supporting documents “include reasonable estimates of all anticipated

19 revenues and expenditures…” 5 CCR 1197.5.3(B)2; “Present a budget that in its totality appears

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

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

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

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

teachers had voted for. The truth, once the captive of a fanciful one page budget, began to leak
24
out, like blood from the scene of an accident. Two weeks after the teachers’ vote, the first line
25
item budget was finally released. It showed: 1) a mythical $5,000,000 line of credit; 2) a stupid
26
accounting error that placed the line of credit in the revenue column and the money needed to pay
27
off principal in expenses; 3) a failure to account for the $1,500,000 in cash reserves required by
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 10

 1 law; 4) a failure to account for approximately $100,000 as salary for a CFO (apparently because

2 the charter school would have no money); and many, many other problems. In short, despite all

3 the lies and misinformation by proponents, the proposed charter school is bankrupt. The charter

4 school has no

5 confirmed donations at a time in history that donations are hard to come by. The proponents have

6 given no proof whatsoever to the public that it has a $5,000,000 line of credit as it claims. As set

7 forth in the Shapiro Declaration, the foregoing errors make the proposed charter school financially

8 untenable.

10 The proposed Birmingham charter school fails miserably in one other respect—racial balance.

11 Cal. Educ. Code, Sec. 47605(b)(5)(G) requires the petition to state “The means by which the

12 school will achieve a racial and ethnic balance among its pupils…” The Petition flatly states that it

13 is relying upon the Daniel Pearl Magnet School which shares the Birmingham Campus to achieve

14 racial balance. As stated in Element 7 of the April 3, 2009 version of the Petition (5 months after

15 the election) “The Magnet Program will continue to operate at BCCHS at its current program

16 capacity. The Magnet Program further assures ethnic and racial diversity of the student body as a

17 whole….The Charter School will provide a written plan to achieve and maintain the District’s

18 ethnic balance…” The balance of the Element is palaver. However, the Magnet School opted out

19 of the charter-no fools they. As a result, the proponents were instructed by the Board of

20 Education, Charter Division to delete all reliance upon the Magnet School from their petition

21 [Shapiro Dec., para. ]. They failed to do this in the case of Element 7, racial balance because they

22 would have had absolutely nothing to say otherwise.

23
Justice is said to be blind, but courts need not be deaf and dumb under the guise of giving
24
deference to administrative agencies. The quality of so-called evidence may be impugned. If it is
25
insufficient to pass a charter conversion based upon a budget that consists only of a single dollar
26
sign, a budget that is comprised of accounting errors, omissions and falsehoods may also be
27
attacked. Lindsay v. County of San Diego Retirment Board, 231 Cal. App 2d 156 (1964).
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 11

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

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

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

4 D. THE BOARD ACTED ARBITRARILY AND CAPRICIOUSLY IN FAILING TO

5 AFFORD A FAIR HEARING TO CHARTER OPPONENTS SINCE THE INFORMATION

6 UPON WHICH THE BOARD GRANTED THE PETITION WAS SUBMITTED TO THE

7 BOARDEX PARTE THE NIGHT BEFORE THE HEARING.

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

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

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

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

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

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

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

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

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

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

18 nonetheless one of them voted to approve!!

19

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

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

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

23 previously failed—finances and racial balance. Second, there were Board members who did not

vote on the facts, so there was NO hearing.

24

25
It is the definition of arbitrary and capricious that a decision is made on an ex parte basis without
26
giving both sides the opportunity to confront, review and refute the evidence. One of the great
27
strengths of our court system is that it is adversarial! Where there is a lack of an opportunity to
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 12

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

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

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

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

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

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

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

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

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

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

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

12

13 E. PETITIONERS SHOULD BE AWARDED ATTORNEYS’ FEES IN THE AMOUNT OF

14 $25,000 AND COSTS IN THE AMOUNT OF $1750 UNDER CCP, SEC. 1021.5

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

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

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

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

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

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

21 award.

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

23 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 16th and making the
24
Hobson’s Choice of whether to opt out of the illegal charter, only to have it fold due to insolvency.
25
4) The LAUSD will know whether Birmingham is coming off its books next term.
26
5) The charter proponents will know if they must gear up to begin operations next term.
27

28

MEMORANDUM IN SUPPORT OF WRIT PETITION 13

 1 This is a difficult case for the following reasons: a) there are novel issues involving review of

2 charter conversion that have not been addressed by the courts previously; b) the Respondents are

3 well represented with counsel who are expert in their field; c) the UTLA was not interested in the

4 case; d) time was incredibly short given the urgency of the matter, the number of witnesses and

5 issues etc.; e) there was an element of economic risk involved for counsel, a solo practitioner.

7 Respondents found an attorney who: 1) is a 34 year practicing litigator with a Harvard degree; 2)

8 who had the time and willingness to devote the entire 4th of July weekend to the matter; 3) who is

9 a 5 time SUPERLAWYER; 4) who is a former senior litigation partner at Jeffer, Mangels, Butler

10 & Marmaro; 5) and who customarily charges $500 per hour.

11

12 Between July 3, 2009 and July 8, 2009 counsel devoted 48 hours to this matter [Baker Dec. ]

13 Preparation for the initial hearing, reply papers and attendance at one hearing are estimated to

14 consume another 12 hours. Costs including filing, service, computer research and photocopying

15 exceeded $1750. If there is discovery and a second hearing, costs will increase, but the total

16 award of fees and costs through the first hearing is going to exceed $30,000 by far.

17

18 IV. REMEDY

19 Petitioners respectfully request that a stay or alternative writ be granted and that all actions to

20 implement the order of the Board dated July 1, 2009(“Order”) respecting the charter conversion

21 be stayed and prohibited; that all Respondents be expressly ordered to cease and desist any action

22 implementing or enforcing the Order until further order of the court; that no teachers or staff of

23 Birmingham be required to opt in or out of the purported charter until further order of this court;

that there be no communication to parents regarding the purported charter until further order of
24
this court; and that all such communications to parents be submitted to the court and counsel for
25
review and further corrective action.
26

27
Petitioners further request that no further action be taken on the proposed charter conversion until:
28

MEMORANDUM IN SUPPORT OF WRIT PETITION 14

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

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

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

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

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

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

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

8 and e) that provides for a secret ballot.

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

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

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

13 for one year. The benefits are:

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

15 well run by dedicated public minded individuals.

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

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

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

19 Hobson’s Choice of whether to opt out.

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

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

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

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

are decided.
24

25

26
DATED: July 8, 2009 LAW OFFICES OF ROBERT P. BAKER
27

28

MEMORANDUM IN SUPPORT OF WRIT PETITION 15

 1 By____________________________

2 Attorney for Petitioners

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM IN SUPPORT OF WRIT PETITION 16