Filed 7/14/23 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE MILAGROS AZUCENA WENDZ, Plaintiff and Appellant, A162648 v. CALIFORNIA DEPARTMENT OF (San Francisco County EDUCATION et al., Super. Ct. No. CPF20517067) Defendants and Respondents. The Legislature charged respondent Superintendent of Public Instruction (Superintendent) with “ensur[ing] effective parental involvement” in the Migrant Education Program (MEP), the purpose of which is to address the unique educational needs of migrant children. (Ed. Code, §§ 54440, 54444.2, subd. (a).)1 As part of this mandate, the Superintendent must establish regional parent advisory councils (RPACs) to consult with local educational agencies in the planning, operation, and evaluation of migrant education programs. (§ 54444.2, subd. (a)(1).) In 2019, the Superintendent adopted regulations concerning the formation and governance of RPACs, including regulations that could affect the size and makeup of the councils.2 1 All undesignated statutory references are to the Education Code. In 2020, after the Superintendent adopted the challenged regulations, 2 the Legislature amended section 54444.2. (Stats. 2020, ch. 24, § 60.) As relevant to this appeal, the amendments made non-substantive changes to 1 Appellant Milagros Azucena Wendz sought to invalidate the regulations in a petition for a writ of mandate, and she appeals from the trial court’s denial in part of her petition. Wendz argues the trial court should have granted her petition in its entirety because the Superintendent’s adoption of the regulations was outside his statutory authority, as section 54444.2 provides migrant parents the “sole authority” to “decide on the composition of the council.” (§ 54444.2, subd. (a)(1)(A).) She also argues that the regulations conflict with the statute because they place impermissible restrictions on migrant parents’ authority to nominate and elect RPAC members from the community. She further argues that the necessity of the regulations to effectuate the purpose of the MEP was not supported by substantial evidence. Finally, she argues that respondents failed to comply with several procedural requirements of the Administrative Procedure Act (APA, Gov. Code, § 11340 et seq.).3 We conclude the Superintendent acted within his authority in adopting the challenged regulations. We agree, however, that the Superintendent violated the APA’s notice requirements when he adopted a regulation prohibiting RPAC members’ use of alternates without adequate notice to the public. He otherwise complied with the APA in adopting the regulations, and subdivision (a) of section 54444.2, and therefore we consider the current version of that subdivision. 3 The Superintendent is the director of respondent California Department of Education (CDE). (§§ 33301, 33303.) Throughout her opening brief, Wendz uses “SPI,” “Superintendent,” and “respondents” interchangeably when arguing that the regulations are invalid. The record shows that the Superintendent adopted the regulations pursuant to his authority under section 54444.2, while CDE staff assisted him in the rulemaking proceeding. Thus, for the sake of consistency, we refer to the Superintendent as the party who proposed and adopted the regulations. 2 the necessity of the regulations is supported by substantial evidence. We therefore conclude the regulations are …
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