Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34-2008-00021188-CU-MC-GDS
NICHOLSON, J.
At its meeting in July 2008, the California State Board of Education (Board) adopted the algebra I exam as the eighth-grade math exam for federal accountability purposes under the No Child Left Behind Act (NCLB). This meant that, within three years, all eighth-graders would be tested on algebra, even though only about half currently take algebra in eighth grade. The Board further directed the state to “build capacity across the system to achieve our goal of Algebra mastery for all eighth grade students.”
The California School Boards Association (CSBA) filed a complaint seeking declaratory and injunctive relief. CSBA claimed that the Board’s action (1) violated the state open meeting laws and (2) exceeded the Board’s statutory authority. Considering CSBA’s motion for a preliminary injunction, the trial court found that CSBA was likely to prevail on both issues. It also found that denying the preliminary injunction would result in more harm than granting the preliminary injunction. The trial court therefore granted the motion.
The Association of California School Administrators is also a plaintiff in this case. The State Superintendent of Instruction and the California Teachers Association are real parties in interest. We need not refer separately to these other parties because they are aligned with CSBA.
On appeal, the Board concedes that CSBA is likely to prevail on the merits on the open meeting laws issue. However, the Board contends that the trial court erred by finding that (1) the Board exceeded its statutory authority by adopting the algebra I exam for eighth-graders and (2) the harm from denying the preliminary injunction outweighed the harm from granting it.
We conclude that, because (1) CSBA is likely to prevail on the merits based on the open meeting laws issue and (2) the evidence supports the trial court’s finding that the balance of harms favors CSBA, the trial court did not abuse its discretion in granting the preliminary injunction. Based on this outcome, we do not express an opinion concerning whether the Board exceeded its statutory authority by adopting the algebra I exam for eighth-graders.
The bulk of the parties’ briefing on appeal is on the statutory authority issue. Nonetheless, as explained, that issue is not dispositive on whether the trial court abused its discretion in granting the preliminary injunction.
REVIEW OF PRELIMINARY INJUNCTIONS
“[A]s a general matter, the question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 554.) “The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction. [Citation.]” (Butt v. State of California (1992) 4 Cal.4th 668, 678.)
Ordinarily, we review an order granting a preliminary injunction for an abuse of discretion. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136.) “Of course, questions underlying the preliminary injunction are reviewed under the appropriate standard of review. Thus, for example, issues of fact are subject to review under the substantial evidence standard; issues of pure law are subject to independent review.” (Id. at pp. 1136-1137.)
BACKGROUND
Because of the nature of this appeal, in which the Board has conceded that it is not likely to prevail on the merits, we need not describe at length the complexities of NCLB and California’s compliance with that law to receive federal funds for education. Because the parties do not take issue with the trial court’s brief introduction concerning the case, we repeat that introduction here:
“In 1997, California developed two 8th grade assessments: an Algebra I test for students taking algebra and a General Mathematics Test (GMAT) for all other students. The current GMAT was developed in 2002. In 2007, the U.S. Department of Education (USDOE) determined that the GMAT was an ‘out-of-level assessment’ because it measured 6th and 7th grade content and therefore did not comply with [NCLB]. In March 2008, the California Department of Education (CDE) proposed a plan that would revise the GMAT to comply with NCLB. It stated at that time that it would not be appropriate for all students to take the Algebra I test. Defendant [Board] approved by an 8-0 vote CDE’s ‘recommendation to develop a grade eight mathematics test aligned to Algebra I standards.’ CDE developed a new GMAT ‘blueprint, ’ which was to be presented at [the Board’s] June 2008 meeting. The matter was continued to July 9, 2008. At that meeting, by an 8-1 margin, [the Board] directed its and CDE’s staff to work with USDOE to develop a compliance agreement making the Algebra I test ‘the sole test of record’ for the purposes of NCLB.”
CSBA filed its complaint in September 2008. The complaint alleged that the Board’s action must be set aside because (1) the Board did not give adequate notice pursuant to the open meeting laws and (2) the Board’s action exceeded its statutory authority. As to the latter allegation, CSBA stated: “By requiring that all eighth grade students take the Algebra I end-of-course examination, the [Board] has essentially required that all eighth grade students learn and be taught Algebra I. This determination is a de facto change in the content standards for mathematics previously approved after a lengthy public process which specifically allowed school districts the flexibility to accommodate individual student readiness for Algebra I. The content standards are the basis of the state’s educational program and the [Board] has no authority to modify them in the absence of new legislation.”
The trial court granted a temporary restraining order and issued an order to show cause concerning whether it should grant a preliminary injunction.
After a hearing, the trial court ruled in favor of CSBA and issued a preliminary injunction. The court found that CSBA demonstrated (1) it was likely to prevail on the merits and
(2) the balance of harm analysis favored injunctive relief.
On the issue of prevailing on the merits, the trial court concluded that CSBA was likely to prevail on the merits for two independent reasons: (1) the Board violated the Bagley-Keene Open Meeting Act in adopting the new eighth-grade assessment standard and (2) the Board exceeded its authority in adopting the new assessment standard.
Concerning the issue of relative harm, the trial court stated:
“Although the court is not entirely convinced by [CSBA’s] litany of untoward consequences, the court is persuaded by [CSBA’s] contention that [the Board’s] July 2008 action would require immediate ‘systemic changes’ to ensure that those students in lower grades, ‘particularly fifth grade students will prepare to take the Algebra I test by the 2011-2012 school year.’ According to [CSBA], almost one-half of all 5th grade students are not proficient in mathematics. Moreover, approximately one-third of the state’s middle school Algebra I teachers are either underprepared or teach out-of-field. The court is convinced that immediate action would be necessary to ameliorate these, and other, systemic shortcomings. Those actions, of course, would entail significant costs. Further, the fact that schools can ‘fail’ for two years before being ‘identified for school improvement’ is of little consolation. Finally, the harm [CSBA] describe[s] looms large compared to the harm [the Board] says it will suffer. First, even if the court were to deny the preliminary injunction, the litigation would remain, a fact that would not be lost on USDOE on December 22, 2008 when it decides whether or not to retain $1 million. Similarly, if [CSBA] prevail[s] at trial, as the court finds likely, then California would be back in the same position it is now with respect to ‘not [making] meaningful progress.’ In that case, today’s ‘immediate harm’ would at most be delayed rather than prevented. Second, USDOE’s November 21, 2008 letter states that if ‘California cannot show cause, [USDOE] will withhold $1,000,000 of California’s fiscal year, 2008 Title I, Part A administrative funds, which will then revert to the local educational agencies in California.’ [Citation.] The withholding, therefore, results not in the loss of educational funds to California, but in the redirection of those funds to local educational agencies. Third, nothing in USDOE’s November 21, 2008 letter indicates that it is anticipating a more onerous withholding.”
The trial court therefore issued a preliminary injunction enjoining the Board from taking any action to implement the Board’s July 2008 decision.
After the trial court issued its preliminary injunction in this case, the Legislature established a new state Academic Contents Standards Commission to develop math content standards based, in part, on national standards. The commission will present its recommendations to the Board by July 2010. The Board will then adopt or reject the proposed standards. (Educ. Code, § 60605.8.)
DISCUSSION
I
Likelihood of Prevailing on the Merits
Although the Board concedes that CSBA is likely to prevail on the merits based on the open meeting laws issue, the Board contends that the trial court was wrong on the alternative grounds for finding that CSBA was likely to prevail on the merits -- that is, the Board’s lack of authority to adopt the new eighth-grade assessment standard. We conclude that the Board’s concession on the open meeting laws issue renders it unnecessary to consider the statutory authority issue, at least for the purpose of reviewing the preliminary injunction.
The Board’s curiously worded notice of appeal in this case requires some discussion. The Board filed a form notice of appeal from the order granting the preliminary injunction. To this form, the Board attached a statement that “[t]his Notice of Appeal does not include any rulings with respect to the Bagley-Keene Open Meeting Act. However, all other factual and legal issues are being appealed.” This statement betrays the Board’s misunderstanding concerning the nature of an appeal. The appeal is from the order, not from the grounds upon which the order is based. (See Code Civ. Proc., § 904.1, subd. (a)(6) [authorizing appeal from order granting injunction].)
Because the Board misunderstands the nature of this appeal, the Board squarely seeks from this court an advisory opinion. The Board states: “In this appeal, the [Board] seeks a legal determination that its Algebra I testing decision is a valid exercise of the Board’s quasi-legislative authority under NCLB, and does not violate any state law. If this Court agrees, then the challenged portion of the trial court’s preliminary injunction order must be reversed....” (Italics added.) There exists no authority for challenging a “portion” of the preliminary injunction. The Board simply fails to understand this basic precept of appellate law.
“The Bagley-Keene Open Meeting Act (the Bagley-Keene Act) applies to most state boards and commissions.... (See Gov. Code, §§ 11121, 11121.1, 11126, subd. (d).) The purpose of the law, stated in Government Code section 11120, is to ensure that ‘actions of state agencies be taken openly and that their deliberation be conducted openly.’ The Bagley-Keene Act implements this policy by mandating that ‘[a]ll meetings of a state body shall be open and public....’ (Gov. Code, § 11123), by requiring advance public notice of meetings (id., § 11125), by authorizing legal actions to prevent threatened violations of the act or declare its applicability to past or threatened future ‘actions’ of a body (id., § 11130), and to declare null and void an ‘action taken’ in violation of Government Code sections 11123 or 11125 (id., § 11130.3).” (Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 797.)
Here, the trial court determined that CSBA is likely to prevail on the merits -- that is, was likely to obtain nullification of the Board’s resolution -- because the Board failed to comply with the Bagley-Keene Act. The Board failed to give adequate public notice that it was considering the adoption of the new eighth-grade assessment standard. This failure violated Government Code section 11125, a provision of the Bagley-Keene Act. Therefore, CSBA’s success on this issue will result in a judicial declaration that the Board’s resolution adopting the new assessment standard is null and void.
On appeal, the Board bears the burden of establishing error. To do so, it must show an abuse of discretion with respect to the two prerequisites for obtaining a preliminary injunction -- likelihood of prevailing on the merits and the balance of harms favoring injunctive relief. As to the likelihood of prevailing on the merits, the Board concedes that CSBA is likely to prevail on the merits because it does not challenge the trial court’s finding that the Board violated the Bagley-Keene Act.
Despite its concession that its action violated the Bagley-Keene Act, the Board argues that CSBA is not likely to prevail on the merits because, contrary to CSBA’s assertion, the Board did not exceed its authority in adopting the new assessment standard. This argument is a nonstarter because, even if the Board is right on the statutory issue, it does not address the fact that CSBA is ultimately likely to prevail in obtaining nullification of the Board’s resolution because of the Bagley-Keene Act violation.
In other words, the Board is seeking an advisory opinion concerning its statutory authority. As the Supreme Court has noted, “[t]he rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.” (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912.) If the Board’s resolution is nullified and the Board complies with the Bagley-Keene Act before acting when it again has this issue before it, the resulting resolution may very well be different. Because advisory opinions are not only inadvisable but also beyond the jurisdiction of this court, we must decline the invitation to opine on the Board’s statutory authority.
The Board’s concession concerning the violation of the Bagley-Keene Act renders unnecessary a discussion of whether the Board exceeded its authority in adopting the resolution. We therefore do not consider it.
At oral argument, the Board remonstrated that, if we affirm the order granting the preliminary injunction, the ruling of the trial court that the Board did not have statutory authority to set new assessment standards will remain in force. We disagree because of the legal consequences of violating the open meeting laws. Because (1) the Board acted in violation of the open meeting laws and (2) an action taken in violation of the open meeting laws is null and void, the Board’s action at issue in this case was null and void. Therefore, the issue of whether the Board had statutory authority to take the action it attempted to take is unripe. Any judicial digressions on the issue are premature.
Also, in addition to the normal problems associated with advisory opinions, it appears that, to some extent, the playing field with respect to adoption of math assessment standards is changing. (See Educ. Code, § 60605.8.) We therefore express no opinion concerning the Board’s statutory authority to adopt new assessment standards.
II
Balance of Harms
In effect, the Board, by conceding that it violated the Bagley-Keene Act, has conceded, for the purpose of preliminary injunction review, that CSBA is not only likely to prevail on the merits but actually will prevail on the merits. The Board’s concession that CSBA will prevail on the merits requires only a slight showing of harm in order to support a preliminary injunction. (Butt v. State of California, supra, 4 Cal.4th at p. 678 [greater showing of likelihood to prevail on merits requires only lesser showing of harm].)
The trial court identified several harms favoring injunctive relief. Despite the fact that the Board’s new assessment standard was not scheduled to take effect for three years, it required immediate systemic changes to bring students up to the expected level of preparation for the algebra I exam. These actions would require significant reallocation of resources for (1) selection and purchase of new instructional materials, (2) additional hiring and training of teachers, and (3) additional intervention for the many students who have difficulty reaching the required level.
CSBA alleged other harms that would occur without an immediate preliminary injunction, but we need not consider them because, taking into account CSBA’s likelihood of prevailing on the merits, the systemic changes needed to bring students up to the required level establishes a sufficient harm to justify the preliminary injunction.
The Board responds that reallocating resources to bring students up to the level required for the new math assessment standards is not a “harm” to be recognized in the balance of harms. The Board states: “The flaw here is that, even if one assumes the [Board’s] decision will dramatically affect mathematics instruction in California’s public schools -- and unquestionably, it will require changes to the status quo -- and even if one assumes these changes will entail significant costs, these are not legally cognizable harms. Indeed, the fact that ‘school districts and school administrators throughout the state will immediately be required to begin taking extensive steps to prepare students to take the Algebra I end-of-course exam’ is not a defect in the [Board’s] decision -- it is the reason for the decision.” (Italics in original.)
This argument is flawed because it assumes the Board’s decision was valid. Yet the Board concedes that CSBA is likely to have the decision nullified because the Board violated the state open meeting laws. The Board also ignores the fact that the funds to make such significant changes will have to be found somewhere. Such a significant reallocation of resources, based on a void decision, is significant harm that weighs in favor of granting a preliminary injunction.
On the other hand, the Board claims that the USDOE will withhold $1,000,000 because the state is not in compliance with the eighth-grade assessment requirements under NCLB. In a letter dated November 21, 2008, the USDOE stated that, because California has failed to adopt an eighth-grade math assessment that complies with NCLB, USDOE “will withhold $1,000,000 of California’s fiscal year 2008 Title I, Part A administrative funds, which will then revert to the local educational agencies in California.” While it is not clear that this is a “harm, ” in any event, it does not outweigh the harm identified above that would result from denying the preliminary injunction.
As we have noted, because CSBA is likely to prevail on the merits, even a slight harm from denying the preliminary injunction is sufficient to show that the trial court did not abuse its discretion in granting the motion. Such a showing was made. Therefore, granting the motion was not an abuse of discretion.
The Board contends that the preliminary injunction runs counter to the state’s public policy of instructing students on algebra in eighth grade. This contention fails because it does not excuse the Board from complying with the state open meeting laws.
DISPOSITION
The order granting a preliminary injunction is affirmed. The plaintiffs and real parties in interest are awarded their costs on appeal. (California Rules of Court, rule 8.278(a)(2).)
We concur: BLEASE, Acting P. J. BUTZ, J.