The Legislature hasn't voted, the governor hasn't signed, but the lawyers are already gearing up for a court battle over Mayor Antonio Villaraigosa's power-sharing plan for Los Angeles schools.
The Los Angeles Unified School District signed an agreement with a Sacramento law firm earlier this summer to advise it on the mayoral takeover, and some district officials have made it clear that they intend to sue if the bill is passed and signed into law.
"Thank God there is a judiciary branch," said school board member David Tokofsky. He said the district is looking at the possibility of legal action and called state legislators "sheep" for lining up behind the measure, which is headed to a vote in the state Senate as early as today.
Underscoring the likelihood of litigation, the state's legislative counsel issued an analysis late Monday that concluded the mayor's plan is probably unconstitutional.
"In our view," wrote Legislative Counsel Diane F. Boyer-Vine, "an amendment of the California Constitution would likely be necessary," since the mayor lacks "authority to operate and administer the schools of a school district."
For his part, Villaraigosa has made clear that he is prepared to fight any challenge to the measure, which would give him limited authority over the school district and strip the elected Board of Education of much of its power.
The mayor chided the district for its apparent willingness to use public funds on a lawsuit. "I would hope that they wouldn't continue to obstruct the education reform efforts that Angelenos support and expect," he said in an interview last week.
He added that no city funds would be spent defending the school district overhaul. Villaraigosa has raised $1.1 million, most of it from four wealthy contributors, to fund his campaign to gain a measure of control over the school district, and said that his political committee would be available to help fund any legal defense. However, the most likely defendant in any lawsuit over the bill would be the governor, in which case the legal defense would fall to the state attorney general.
School board President Marlene Canter said Monday that she thought it was the mayor's legislation, not any potential lawsuit, that "has the potential to jeopardize the reforms that we've been consistently making over the past six years." She said that there is no reason to assume that the district would sue.
"It just really depends on the outcome and the language that's submitted at the end of the day," she said. As currently written, she added, the bill contains "problematic" language.
That is also the opinion of Boyer-Vine, the nonpartisan legislative counsel, whose analysis Monday echoed one she had written earlier this summer. In both, she argued that the state Constitution makes clear that power over schools may not be transferred from a school district to any other entity.
"A court," she wrote in Monday's analysis, "would likely conclude that authority or control over educational functions currently performed by a school district may not be transferred by statute to the mayor of a charter city."
The mayor's legal counsel, Thomas Saenz, said in an interview that he disagrees with Boyer-Vine's analysis and is confident that the bill is constitutional. The Legislature, he said, has the constitutional authority to transfer power over schools.
The legislative counsel's opinion "would be a very good argument if this was the mayor of Los Angeles independently trying to usurp authority over the school district without legislative authorization," he said. "That is not the situation."
Janelle Erickson, a spokeswoman for Villaraigosa, said the legislative counsel's office predicted years ago that charter schools would be declared illegal, "so they haven't always been on the ball."
Kevin Reed, general counsel for L.A. Unified, has been making arguments similar to Boyer-Vine's, especially about Villaraigosa's plan to personally take over a group of low-performing schools in a "demonstration project."
In an interview, Reed also said he believes the bill violates the Los Angeles City Charter, which gives the board of education "power to control and manage the public schools of the Los Angeles Unified School District in accordance with the Constitution and laws of the state."
And, he said, the bill might also be vulnerable to attack on the theory that it disenfranchises residents of six cities that are outside Los Angeles but within the Los Angeles Unified School District. A council of mayors would help run the district, with power based largely on a city's population, giving the mayor of Los Angeles an outsized voice.
Saenz disagreed with both arguments. The City Charter makes clear that the school board is subservient to "the laws of the state," which means the Legislature can change the board's role, he said. And he argued that residents of the smaller cities will have representation proportional to their size.
Saenz did say one thing on which both sides can agree: The legality of the bill will almost certainly be determined in court.
Reed said he didn't know how much money the district has spent so far on the Sacramento law firm, Olson Hagel & Fishburn, which it retained in June for "analysis of governance issues." He said the firm had already been under contract to the district for other matters.
Reed added that the Sacramento firm would not necessarily be the district's choice to file a lawsuit should one be filed.
Times staff writer Jim Newton contributed to this report.