*1 No. 24403. Nov. [S.F. 1982.] BROWN, JR., Governor, etc., Petitioners, G. al.,
EDMUND as et v. COUNTY, THE SUPERIOR OF COURT SACRAMENTO Respondent; Interest; al., W. THOMAS MARTIN et Real Parties No. 24405. Nov. [S.F. 1982.] GAMPELL, Director, Petitioner,
RALPH J. etc., Administrative COUNTY, THE SUPERIOR COURT OF SACRAMENTO Respondent; al., THOMAS W. et MARTIN Real Parties Interest.
Counsel General, Martland, George Deukmejian, Richard D. Assistant At- Attorney General, Arne torney Werchick and Werchick & Werchick for Petitioners. No appearance Respondent. Friedman, Miller, Kronick, Moskovitz,
Leonard M. Andrea M. Tiedmann Girard, Haerle, & Walker, Paul R. Vaughn R. James P. Hargarten, Bruce A. Ericson and P. for Real Parties in Douglas Right Interest. Hufstedler, Miller, Carlson & Robert E. Beardsley, S. Thompson Mary as Amici Curiae on Healy behalf of and Real Parties in Interest. Respondent Opinion
NEWMAN, J. Court of Appeal system in California was expanded The aby statute the significantly Governor and the dur- passed approved 1981. The ing September (Stats. statute went into January effect on ch. On February permanent via injunction, Judge Fogerty— sitting by assignment un- Sacramento Court—held statute Superior He constitutional. ordered Governor from new refrain appointing (2) the Controller judges, refrain from funds out disbursing carrying scheme, statutory the Administrative of the Courts refrain Director from allocating for that appropriated moneys purpose. now
The question whether we should vacate The chal- injunction. (ch. 959) statute in its six sections: lenged 1. Adds fifth division of three to the District in San judges Appellate First Francisco.
2. Adds sixth and seventh to the Second judges Appellate divisions three other, Barbara. District. One new in Santa division is Los Angeles; 3. Adds a third division of four the Fourth District. judges Appellate division, number of from five to the first is increased judges Diego, San six; at San from five Bernardino second division the number is decreased four. The County. of the new are to judges third division sit Orange
4. Adds two to the Fifth District in Fresno. judges Appellate 5. Creates a Sixth in San three-judge District Jose. Appellate *4 6. Declares that for the and staff is money division’s Orange County judges Act, to come from resources and the 1981 articulates existing legislative intent that of and “be that division’s financing library equipment ” donation, achieved local or funding or and use public by private proscribes other of funds for the library and equipment.1
The been Legislature’s to enact the five sections has not chal- first power VI, because lenged article section 3 of California provides: Constitution “The Legislature shall divide the each a court of containing State into districts with one or appeal more divisions. Each division consists of a justice presiding below, 2 or and more associate . . . .” justices During proceedings however, (see 1) concluded section our fh. Judge Fogerty that 959’s chapter was unconstitutional.
How This Case Arose (and December 1981 Thomas Martin and Thomas Tweedy, taxpayers here), interest sued and an amended filed on December complaint advanced of arguments their that support request implementation chapter be enjoined. Judge Fogerty his order recites: February “The cause was submitted notice upon pleadings, upon judicial imparted by documents in the record placed the transcribed oral arguments upon counsel. The Court has concluded is no before the that there of fact question Court; (2) that California Chapter Statutes is unconstitutional void.” private District Legislature further resources, and that District 1Unlike the other funding donation. Funds from other intent of the is holding provided restriction is funding sessions in sections of funding for the uncodified. Orange County library the four Act.” sources It appears funding judges which are equipment shall be achieved in section which reads: “It is the not be support incorporated spent third division of the Fourth the division of the Fourth for those staff be into the Government local purposes. provided funding from or [1] intent of the Appellate Appellate public existing It Code, is the or
In S.F. No. 24403 here the are the Governor and the Controller. petitioners In S.F. 24405 the of the Courts. They Administrative Officer petitioner seek mandate to court to vacate the compel respondent injunction. Injunction
The Basis of the Judge dated Fogerty’s opinion, reads in as follows: February part “A Court clearly cannot function without a or Nor library should equipment. the Court be donations, in a where it position must solicit and whether accept public private. The of a with its doctrine of concept tripartite government H] been separation powers has violated this enactment legislative [chapter The independence is sacrosanct. . . . judiciary 959]. [Citation.] [1] enactment, legislature, its through has the efficient impinged upon operation court, and has thereby violated Article Section of the California Con- Furthermore, stitution. a statute which a state court to finance its requires necessary operations from donations threatens the integrity judicial pro- cess and the reputation for which is to the impartiality indispensible judicial [|] functions. Finally, Court concludes that the unconstitutional funding cannot be provisions severed from the statute as a whole. ... It would ... be beyond jurisdiction this Court to to rewrite the statute to deter- attempt *5 mine which of the new divisions would stand or fall. Nor can this Court merely strike the limitation thereby the State to fund a where an in- requiring program allocated, sufficient has been budget . . . Court can review and act [f] [T]his on what is before it. The fact that in the future the be able legislature to rewrite the statute to then make it constitutional is not a factor to be con- sidered this by Court.”
On June concerns, 30 this year, in perhaps response Judge Fogerty’s included the Legislature (Stats. in Act following its 1982 provision 1982, 326, 0250-490, ch. item 2): of Section 6 provision “Notwithstanding $209,480 fn. Chapter . . . ... allocated to fund is expressly [see ante] and library for Division Three of the Fourth District equipment Appellate (the division in holding sessions That is to no say, longer Orange County).”2 provides: 2Item 0250-490 law, “—Reappropriation, Judiciary. any provision Notwithstanding other of the unencumbered balances, act, provided following on the effective date of cita- appropriations of the tions, reappropriated following purposes expenditure are for the for until and shall be available June “001—General Fund “(a) 025-001-001, 0250-001-001, Item Budget Act of 1981-for transfer to Item to be purchase equipment used for of library, and basic reference materials for a central law $719,211. not to exceed “Provisions: $509,731 (a), reappropriated category appropriated equipment “1. Of the amount in for expenditure only expenditure present and shall be available for in violation of the if such is not during injunction relating Chapter expended Statutes of and if these funds are was there any intent that that and “be achieved financing library equipment of by local or . funding public private donation . . .” here, that reflected
Thus it appears Fogerty injunction, challenged Deemed exists. judge’s longer concerns restriction that regarding statutory toto (see ante), supersed- when enacted fn. was restriction temporary he con- correctly ed the 1982 Act. we need not whether by So consider “a cluded of statute because its section the Legislature passed which violated the California Constitution . . . stressed, He to other that his without though, regard ruling “dispositive ” to examine
significant problems raised in this Therefore we litigation. proceed of the those have been the briefs they identified and discussed problems, and amici oral during argument. Significant Other Issues XVI, be
Article section 7 of “Money may our state’s Constitution prescribes: drawn from the made law Treasury only through appropriation . . . .” For fiscal has year 1982-1983 appropriated $36,015,838 Council” including Judicial support Judiciary, “[f]or $20,964,632 Further, specifically ap “amounts Courts Appeal. . . . propriated are intended to all sit fully places the judgeships fund (Italics created ting added.) Chapter 959 the Statutes 1981.” year fiscal purposes. these “2. Notwithstanding $209,480 Chapter Section 6 of Statutes of reappropriated amount (a) category for the Judicial expressly Council is allocated to fund the (the library equipment Appellate Three District division Division Fourth *6 holding Orange County). sessions in “3. The Judicial Council shall Department submit to the Finance the Public Works Board plan a revised correspond space with modified forjudges needs and related staff San Diego Bernardino and San any and shall savings may produced indicate that be from this revision.” 3Item chapter 0250-001-001 of 326 of provides: Statutes support Judiciary, 36,015,838 “—For Judicial Council “Schedule: “(a) 10-Supreme 5,143,000 Court................................................................... “(b) 20,964,632 Appeal.................................................................. 20-Courts of “(c) 11,633,899 30-Judicial Council................................................................... “(d) 276,000 on 40-Commission Judicial Performance......................................... “(e) —1,282,482 97.20—Unallocated reduction..................................................... “(f) 025-001-001, payable Amount from Item Act of reappropriated by —719,211 Item 0250-490........................................................... “Provisions: act, Notwithstanding “1. Section 27.00 of appropriated this the or funds scheduled this may item be allocated among or reallocated categories by subject order Judicial Council being reported to the Director of Finance. “2. The amounts appropriated by fully this item judgeships are intended to fund all of the places sitting by Chapter created 959 of the Statutes of 1981.” that brief but real
Notwithstanding unambiguous pronouncement, legislative that the contend no such have been that parties legally funds appropriated court’s should superior injunction accordingly effect. stay the Because, Why might pertinent 1982-1983 be invalid? appropriation say chapter 959 either was void ab initio void parties, or become on January effective date. its We discuss first the latter contention. It is conceded in this case that real would have been parties’ complaint if groundless chapter 959’s effective date had been But the July choice of Legislature’s 1 instead of January argued, it is was fatal since July Governor, Controller, that the day and the Administrative Direc- courts’ tor were because, endowed with could not powers they exercise allegedly, had Legislature provided money.
Real cite no maintain, that their view precedents. They though, sup- IV, and, article section 12 ported by of the Constitution particularly, pro- nouncement in section (d) subdivision that ... are void “[appropriations unless in each passed house rollcall vote . . . two thirds of the membership 959 did receive vote.4 concurring.” Chapter a two-thirds Nowhere in words of annals the Constitution or in legislative California or in juridical opinions can we any discover rule overriding not, without may offices, funding initial fiscal create in- year, agencies remarkable, courts and cluding theOn in this judgeships. contrary, century nationwide development evidences a powers budgeting-and-appropriating basic concern that laws which be from “authorize” those which distinguished ” “appropriate. Legislatures first decide whether a a new or of- agency need for established; fice seems then decide how to they whether and prescribe funding. the first half of none of the
During
year
filled,
was
and no new court
judgeships
July
As
inaugurated.
though,
funding
indisputably meets the constitutional
had been
adequacy
tests
Governor,
Whatever
provided.5
might have been
had the
Con-
problem
assume,
4In dealing
parties’
necessarily accepting,
with real
we
contentions
without
their
premise that courts
legislative journals
examine votes recorded
to ascertain whether
*7
approved by
an
deposited
Secretary
enrolled bill
and
effective
Governor
with the
State is
County
as a statute. In
Yolo
a
Colgan
rejected
v.
The reference only however, in its section money chapter appears 6, the Orange County clause. We concluded above that library-and-equipment the restrictions there were Act. No words in superseded by 1982 Budget 959 curtail a chapter created to make from subsequently authority expenditures current Section appropriations. 6 itself dealt with the 1981-1982 it budget; stressed that “funding be [Orange County] staff support provided [should] resources, from existing for the four ... funding judges provided [1981] Act.”
Nonetheless as to it is judges, argued, doctrine com- separation powers mands that—once (Cf. are entitled to their salaries. fn. appointed—judges ante.) we Again stress that no have been If chapter judges any appointed. been, had it though, that a claim appears would have involved not on- salary ly but chapter 959 also Government Code section 68200 et which fix base seq., salaries for all Supreme Court and Court of in trial Appeal justices judges courts of record. Those Government Code sections were apparently approved Senators, vote 2 short of the two-thirds required appropriation (Stats. bills. ch. (Assem. 3844); Bill No. 9 Sen. J. §§ (1975-1976 Reg. Sess.) 16794.) Yet those sections and like laws are clearly Thus, valid. salaries, even were it as a law regarded that sets judges’ 959 did not need a two-thirds vote.6 III, (a) 6Real invoke the setting declaration in article section subdivision laws Summarized, the salaries of elected appropriations. state officers are reasoning is as follows: Appellate judgeships are elective offices. Salaries are set A law Government Code. (such here) creating judgeship a new operative triggering as ch. 959 “is the last event authority salary Controller’s to draw judge. operative appro warrants” for the new “As an
priation, subject such a law is requirement.” to the two-thirds vote III, however, The aim of the (a), declaration in article section was not to re- subdivision quire salaty a two-thirds vote but rather majority to ordain that even with a mere vote certain “appropriations.” laws are Proposition adopted by critical words were in the voters at the November 1972 election. pamphlet Legislative explained In the voters’ Counsel *8 Real urge that “a parties a new proposal establishing state agency ap- its initial propriating funds entails en- support an ‘for the appropriation IV, suing year’ 12, fiscal within the Art. meaning (a), sec. subd. but for also an indeterminate number of years fiscal thereafter.” Without further legislative action, even though, a special starting for new would not appropriations agency fund Moreover, its operation years. later no clause the ex- Constitution tends to laws that create new or offices the agencies the two-thirds requirement IV, 12, have for people prescribed (art. (d)), appropriations subd. urgency § IV, 8, (art. statutes (d)), subd. and a § limited of certain taxation laws listing A, 3; IV, other clause, matters art. XIII (e.g., 4). art. Absent such a § § obvious implication is that agency- office-creating statutes indeed bemay passed by majority, from simple whatever or separately budget appropriation act is needed for implementation.
Real suggest that the initial an costs of are not current agency “usual Const., to which expenses” budget IV, (See acts are confined. assertedly art. 8, (c)(2) subd. for (appropriations § usual current take immediate ef- expenses fect); McClure v. Nye P. Cal.App. (appropriations 1145] construct buildings were not for usual current and did not take im- expenses effect).) mediate IV, Yet the (art. bill must itemize budget “expenditures” 12, (c)), subd. including whether or not capital outlays, they § are usual and current. And clauses, both 1981 and Acts include Budget urgency to assure their seemingly immediate effect without reliance on the “usual taking current expenses” IV, 8, reference in article (c)(2). section subdivision 1981, 36.00; Stats. 36.00.) ch. Stats. ch. § § Petitioners a cite precedent for a statute that creating appellate judgeships specifies their Item 17 the 1973 Act appropriation Budget support. (Stats. 129) ch. a sum for courts and added a appropriated lump appellate $72,000 “that ex- proviso funds in this item shall not be appropriated unless pended legislation enacted Session during Regular an establishing additional the Third District.” When judgeship Appellate declared, law was enacted Government Code section 69103 “The Court for the Third District of one division four Appeal having consists Appellate Later, shall hold judges and its sessions at Sacramento.” on October regular that, section January 69103 was amended to until provide and, date, Third District have six on and after that Appellate should judges (Stats. seven. ch. Section amending chapter provided Act of Item 17 “Notwithstanding provisions thousand seventy-two ($72,000) dollars reserved that item an additional existing requirement specific words “would eliminate the appropriation that there be a enacted otherwise, Act, words, (Italics added.) pay though bill salaries.” other setting salaries of elected appropriation state officers is not an it nonetheless takes effect as bill appropriation an it once has been enacted.
251 be ex- may in the Third District of the Court of judgeship Appeal Appellate for more than one additional for that district.” pended judgeship Is that relaxation of the restriction distin previously imposed budgetary not, from the here? think for in guishable legislative history Legis We 1973 In lature did not treat 1124 an bill. its final patently chapter appropriation Counsel’s version paragraph, Legislative last-amended Digest (which Senate Bill No. 1124) majority. 1149 became ch. reads: “Vote: Ap propriation: (Italics added.) no. Fiscal committee: Though ...” yes. chapter 1124 (see in fact both vote 5 houses with more than a two-thirds passed (1973 8880; Sess.) Sess.) Assem.J. Reg. (1973 4 Sen.J. 6754- Reg. pp. 6755), that reflects the that the bill con digest Counsel’s Legislative opinion tained no appropriation. creation—with Legislature’s contemporaneous three appropriation—of (ch. 1124) new and new many 1973 judgeships judgeships appellate (ch. 959) courts 1981 raises a “strong presump tion” that were not accompanying constitutionally appropriations required. (See Methodist Hosp. (1971) Sacramento v. 5 Cal.3d 692 Saylor [97 construction, 488 Cal.Rptr. P.2d to a “settled (referring principle 161] i.e., the strong in favor of the of a presumption Legislature’s interpretation pro vision the Constitution”); cf. San Jose Mercury-News v. Court Municipal (1982) 30 Cal.3d 514 655].) P.2d 638 Cal.Rptr. [179 8, 1982, our
Finally, by clerk’s letter of were invited to com- July parties ment on the effect of the 1982 Act in have Budget they this case. response argued that the absence of and a claimed absence appropriations 959 chapter for new appropriations Act made judgeships Budget courts 1981 initio, void ab chapter Act. incapable revived 1982 being by They invoke the act principle which is conflict legislature “[a]n with the constitution (Reclamation is no statute at all.” v. District Superior (1916) 171 Cal. 845]; 676 P. Norton v. Shelby County see [154 118 U.S. 1121].) L.Ed. 6 S.Ct. [30 concede
They to the note the exceptions they principle, properly inap- here of one plicability of limited effect to a void statute in exception: giving order to protect created innocent rights reliance on its Chicot validity. 332-333, County Dist. Bank 308 U.S. L.Ed. 317].)
S.Ct. have not intervened not Rights here because the new divisions are established, now the new filled. judgeships yet discuss,
Real then but parties identify, fail to another puzzlingly excep tion: invalid statute partially be validated later That legislation.” “[A] concede, instance, here. Real exception applies Act above). validly superseded (see 959’s section 6 then would Why first five sections still be invalid? Not because of what those sections it is say, *10 but because of
argued, what they fail to that say; namely, funds are available for spending.
We hold that the 1982 Act Budget cures omission and renders the alleged chapter fully operative. County (1936) Los v. Jones point Angeles 6 489], Cal.2d 695 P.2d where the enacted example, amend- Legislature [59 1935, (Stats. 729, ments ch. 1999) to sections of the Assessment p. Bond (Stats. 1933, 749, Act of Refunding 1933 ch. 1915) in to a p. decision response the act holding unconstitutional Los (County Angeles (1935) v. Rockhold 3 340, Cal.2d 192 P.2d 100 149]). valid, A.L.R. the amendments Ruling [44 court the contention rejected that were they void because the law simply they Jones, modified had been declared unconstitutional. (County Los v. Angeles supra, 708.)7 6 Cal.2d at p.
Conclusion 959 was a
Chapter proper exercise to Legislature’s establish ad- power ditional courts of appeal We need not decide judgeships. whether could judgeships have been filled or courts started before up passage law, 1982 Act. That Budget act now has become implementation chapter 959 thus is lawful. issue,
Let a writ peremptory to vacate ordering its respondent judgment against and to petitioners enter in interest. judgment against J., J.,*
Reynoso, White, J.,* C. Brown Acting (Gerald), concurred. RICHARDSON, dissent. respectfully J.—I 1981,
The statute at (Stats. issue herein 959), ch. enacted in September to was become effective on January Although chapter purported argues 7The “improper” dissent that it was appropriate judgeships yet ap not funds proved (post, p. 253), “proper” procedure special appropriations is to include for new projects 254), legislation establishing (post, public policy” them and that “sound calls judicial “prophylactic creation of a chapter absolutely rule” that statutes such as 959 are 254, 255). (post, adopted by void unless pp. two-thirds vote It is not this court’s function adjudge propriety legislative processes that violate neither the nor govern- California the federal Constitution. As a “coordinate branch of our state ment” our is “entitled to function within its without interference domain courts," judicial and the role inquiry functioning does not include an whether can be recon- (Santa County Superior public ciled with “sound Clara policy.” v. 33 Cal.2d Taylor 1]; 40].) Cole P.2d see Accordingly, [203 201 Cal. P. we rule that there is no in Chapter provisions constitutional defect 959 and the related Act. *Assigned by Acting Chairperson of the Judicial Council. date,
establish 18 new no valid appellate judgeships prior appropriation of funds had been made to for them. itself con- pay Accordingly, chapter stituted, effect, an which legal measure attempted implied appropriation rendered void for absolutely failure to obtain the two-thirds vote need- requisite Const., IV, ed to adopt (Cal. such a measure (d)). art. subd. void in Being § entirety its on January aby 959 could be revived belated contained in appropriation (Stats. 326). the 1982-1983 Act ch. *11 1. No Valid Prior the Appropriation Budget Act. 1981-1982 it is Initially, clear that there existed no of funds prior legally appropriation to available the costs of pay 959’s ambitious The 1981-1982 chapter programs. Budget (Stats. 1981, Act 99) ch. contained a sum lump appropriation $19,321,447 for the Court of there is Appeal, and some indication that this figure intended to include some for 15 new which provision judgeships were earlier, proposed different, under an vastly version of the bill which became ultimately (See chapter 959. 1981-1982 Governor’s at LJE Budget, 10.) Yet, as I explain, we could not the hold that properly Budget 1981-1982 Act lawfully funds for appropriated the 18 created 959. judgeships Indeed, the majority herein does not contend otherwise. First,
There are several reasons for conclusion. as foregoing budget act itself the act’s various were limited to “the acknowledged, appropriations 35.00; (Stats. usual current expenses” of the state. ch. see Cal. § Const., IV, art. (c)(2).) subd. such could legitimately Although expenses § include for anticipated expenditures authorized previously projects, pro- nevertheless, not grams as the state requiring legislative approval, Legislative observed, Analyst pointedly it was to an provide appropriation improper act for future budget yet which had not been judicial positions legislatively Instead, the con- approved. such new should have been funding positions i.e., sidered “in connection with the authorizing chapter 959. legislation,” Com., (Legis. Analyst to Joint of 1981- Legislative Analysis Rep. Budget Bill, at p. The practical reason for from a act excluding any budget appropriations items which are not as yet authorized legislatively is obvious: An annual budget act is intended to itemize the recommended probable state expenditures IV, (Cal. Const., fiscal forthcoming year. (a), (c).) art. subds. Until for- § enacted, mal enabling legislation is the usual following procedures hearings debates, for an necessity for such an item is appropriation entirely speculative premature. case, therefore,
In the present sum for the Court of lump appropriation in the Act Appeal was not to lawfully available fund the 18 conclu- different Any
added created 959. judgeships subsequently by chapter could the financial of the state readily security permitting sion endanger an- which were neither the cost of defray use of fimds general projects needs forthcoming budget nor authorized at the time when the state’s ticipated held, funds bemay spent were calculated. As we recently appropriated (Stanson v. designated. for which were purpose they legislatively particular 1].) P.2d Mott 17 Cal.3d Cal.Rptr. 2. No Valid Appropriation Chapter course,
I do not is suggest, powerless approve However, bill. fund new included in the current projects budget properly An- as proper procedure, carefully explained report Legislative those funds for such alyst, proj- previously quoted, appropriate specially Const., Cal. ects which establishes part legislation projects. *12 IV, 12, contained in (d).) art. subd. No such was special appropriation § intended, 959, the measure of course. an was chapter implied If appropriation because, concedes, failed 959 did necessarily gain as the majority chapter. mandated two-thirds constitutionally legislative approval. Act. Budget 3. No Valid Appropriation 1982-1983 fimds for the judgeships insists that defect in majority any appropriating contained cured a created 959 was by chapter by subsequent appropriation 1982, was (Stats. 326), by ch. which adopted the 1982-1983 Act 30, void as absolutely was on June 1982. Because 959 Legislature chapter 1, 1982, however, occurred. Sound no revival or cure could have such January that conclusion. compels public policy indicated, became effec supposedly
As its terms 959 previously by chapter 1982, to 1, available pay tive on the lack of funds January any legally despite If created that by chapter. the salaries and of the 18 new judgeships expenses on and effective measure we that nonetheless a valid assume 959 was chapter and, indeed, the Governor became authorized January thereupon 18 Const., VI, (d)) to (Cal. appoint art. subd. mandated constitutionally § automatically, new to fill those such Any appointments judges positions. upon would have imposed without the further necessity any proceedings, for the salaries liability statutorily prescribed state a to corresponding pay Code, 68203.) As the Constitution (b); new offices. Gov. subd. §§ officers such judges] “Laws that set these salaries elected state provides, [of Const., III, (a); Cory Olson (Cal. art. subd. see are appropriations.” § 532].) 636 P.2d (1980) 27 Cal.3d 543-544 Cal.Rptr.
255 Thus, became it assuming January thereupon effective chapter had the immediate Fund a substantial the General potential imposing upon not secured liability by valid any preexisting appropriation. Attempting however, observes, salvage chapter hindsight that “no majority (ante, 249), have been chapter judges acknowl- evidently appointed” that had edging such been made of the appointments prior passage Act, 1982-1983 Budget a different obtain. Yet it be might result should whol- ly irrelevant from a constitutional case no standpoint appointments were made. In every case it is the of the General potential liability Fund which a requires two-thirds before approval special appro- measures priation such as may be To assure that chapter adopted. no such future is liability incurred or this court should attempted, recognize rule that prophylactic all similar measures are void unless absolutely adopted two-thirds requisite vote. Such not be somehow frozen proposals in a legislative refrigerator and later thawed a belated appropriation some subsequent budget act.
While ineffective for funding new Act judgeships, in one revealing important a belated respect: attempting provide ap- for “all of the propriation created judgeships places sitting by Chapter (Stats. 1982, Statutes of 1981” ch. 0250-001-001), item Legislature thereby impliedly acknowledged that valid prior appropriation had theretofore been void, made for this item. Yet absolutely being *13 and the 18 could be judgeships not so readily by only created the briefest reference in a single item the Under budget system act. our government, revival of a void act can occur by reenactment of the follow- legislation the ing usual legislative process and its accompanying safeguards against action. precipitous That essential not followed here. procedure was seeks majority from a that a invalid help principle partially statute may be validated by (Ante, later legislation. 251.) I Yet as have p. explained, chap- void, ter so, 959 was entirely failed the partially gain having necessary two-thirds legislative approval within attempted appropriation implicit 959’s chapter provisions. Nor is County Los Angeles v. Jones 6 Cal.2d P.2d
489], in point. There we held the an Legislature could amend unconstitu- tional law aby noted, subsequent enacted duly amendment. As 959 was chapter not reenacted in the law; moreover, manner required by Jones did not purport to allow revival of the entire void act aby amendment thereto. simple that, the
Finally, occasion, majority points to the fact on a the prior Legislature to create purported new for the Third appellate judgeships Ap- District pellate expressly (Ante, without funds for their appropriating support. Yet, 250-251.) concede, as the pp. must the there at issue majority legislation (Id., .” . . . fact both with more a two-thirds vote “in houses than passed such, Third Thus, it not label did although which was duly an clearly District constituted implied appropriation legislation vote. approved by requisite summarize, founded
To is chapter upon constitutional invalidity or amendment more than mere which empty adoption technicalities govern a new and unappropriated which creates legislation. Legislation potentially Every constitutes such appropriation state an liability implied appropriation. This rests must be a two-thirds vote of the Legislature. principle approved IV, 12, subdivi- financial which article section sound underlies upon policy it is (d), court our sion of the California Constitution. As California’s highest against the state treasury clear to remain ever duty diligent protect function, to in- unauthorized invasions from source. It is our any particularly, safeguards sist that full and strict with those constitutional upon compliance process. which have the appropriation themselves people imposed upon IV, view, with article is because my noncompliance invalid of its from this (d) Constitution. It follows section subdivision of the California were new created. appellate judgeships I would writ. deny peremptory
Caldecott, J.,* Franson, J.,* and concurred. 18, 1982,
On Tweedy November interest petition party denied, at order of was which time court following dissenting Richardson, J., Caldecott, J.,* on denial were opinion filed. Franson, J.,* were of the be A response should granted. opinion of Justice to that filed on Reynoso January dissenting opinion below. reproduced Order *14 COURT
SUPREME FILED Nov GILL, Clerk P. LAURENCE Deputy 24403,24405 No. S.F. Supreme of California
In the Court of the State
In Bank Acting Chairperson of the Judicial Council. *Assigned by the al., Brown, Jr., etc., Petitioners, et v. Superior Respondent; County,
The Court of Sacramento
Martin, ,al. in et Real Parties Interest. etc., Petitioner,
Gampell, Superior County, Respondent; Court of Sacramento
Martin, , et al. in Real Parties Interest. 1, 1982, in Since the decision on these cases was filed November has received considered the following papers: Decision, 2, 1982,
1. re Stipulation November at- Finality signed interest, of record torneys for the for both real petitioners 3, 1982, filed November that the decision become final stipulating forthwith.
2. from 8, 1982, Letter amici curiae dated November finality urging the decision not be accelerated.
3. Substitution of Attorneys for real A. interest Thomas party Tweedy, filed November 1982.
4. Motion by (2) real party interest Strike Ex- Tweedy Stipulation; tend Time to File Petition for Issuance of Remittitur and Rehearing; Stay Writ and Peremptory (4) Modify Judgment, filed November 1982. General,
5. Letter from the Attorney as counsel for Edmund G. petitioner Brown, Jr., dated November be made final that the decision urging forthwith the letter notwithstanding from amici curiae and the disavowal in interest party Tweedy of filed November 3rd. stipulation 6. Petition for 45(e) and Motion (relief Pursuant to Rule from Rehearing default) filed by real party Tweedy interest November 1982. Brown, Jr., Governor, Opposition Petitioner Edmund G. to Motion of
Thomas A. filed Tweedy, General counsel for the Governor Attorney on November
In declaration and light affidavit attached to motion real party interest Tweedy, the In his stipulation respects, is stricken as to him. all other 15, 1982, default,
motion filed November is denied. The motion for relief from filed November been has rendered moot of the by acceptance petition for rehearing. consideration,
After due for is denied. The court deems petition rehearing that this lawsuit has long enough delayed implementation responsibilities cause, that our Constitution entrusts to the Legislature. Accordingly, good the decision herein is made final forthwith.
See dissenting opinion. Richardson, J., Caldecott, J., Franson, J., and are opinion should be petition granted.
Reynoso Chief Justice Acting RICHARDSON, J. dissent from the order summari- respectfully majority’s I ly filed denying timely the decision in this petition rehearing making case “final forthwith” two after that was filed. Decisions of days petition our court become final “30 ordinarily (Rule 24(a), after Cal. days filing.” case, of Court.) considerations, Rules No valid to this special justify peculiar deviation majority’s from our usual awaiting practice expiration full 30-day period.
There are reasons for our with the rule. good traditional compliance During do) the rule’s we 30-day (and receive constructive and period, may frequently bench, bar, scholars, useful criticism from the from the litigants, legal curiae, amici and from other interested These criticisms persons. suggestions often may us to persuade or at least to our grant modify opinion in various 27(a).) rule important respects. case,
In the had filed a counsel for the present although respective re that our decision of Decision” purported “Stipulation Finality agreeing forthwith, herein) interest (a become final one of real those parties party the basis that he moved to strike that subsequently timely stipulation declaration, never he authorized his counsel to it. to real According sign party’s counsel, now withdraws has his former obtained new discharged attorney, addition, a timely has filed stipulation. party of rehear- the merits of our decision. Real briefs challenging support party’s contain, other not heretofore considered two ing among things, arguments First, (Stats. herein this court. he notes the failure of the statute at issue con- 959) ch. mandate that the commission with constitutional comply *16 any court nominations include a firming must appellate representative VI, (Cal. Const., (d)). Court of art. real Appeal subd. As party §§ observes, to create a new Sixth District of the Court of purported no Appeal having to such preexisting justices representation. qualified perform addition, In out that the petition rehearing 1982-1983 points Act not cured the which has unconstitutional defect in section of chapter to the new of the Fourth District purports Orange County Division deprive a Court of funds to Appeal any support library appropriated public essential for the that new division. As the cor- equipment functioning petition observes, the rectly Act fund- a merely temporary provides ing such needs will on June expire
The various a raised real not have merit or points justify or party may may rehearing. of his for such Unfortunately, timely despite filing petition rehearing, has it majority denied that without summarily petition according the appropriate consideration heretofore with this court. given to filed petitions there, majority’s break with tradition does not end also has it ordered its former forthwith,” decision “final thereby our prematurely terminating (rule authority 27(a)) to order a rehearing modification of sua opinion to sponte. addition filed one we parties, have received from amici a curiae herein letter amici’s intent file indicating additional court, authorities and argument which induce this if reasonable might afforded, time was to order a sua It is most unfortunate that sponte. rush, majority, time, its denies amici our rule opportunity, during their additional presenting contentions. The order forecloses majority’s finality and summarily rejects amici’s without even its presentation considering possi- merits, ble and without explaining why finality immediate appropriate case.
While cause,” recites majority that its order is issued for one “good has suggested what that cause” “good is. The document filed in support above, order is the finality now withdrawn of counsel referred to stipulation which recites merely that had without What agreed finality, counsel more. possible emergency exists deviation from our usual justify any procedures? Only rarely under are we our exigent justified making circumstances decisions “final forthwith.” one As commentator has observed: distinguished “If effective vital or to the promptly decision is of to the importance public . . .” (6 make its ‘final forthwith’ . parties, Supreme judgment Witkin, Procedure, added.) Cal. italics Appeal, §
260 we such adopted
We have used the For foregoing example, power sparingly. 638, (1982) a in v. 30 Cal.3d 679 Assembly Deukmejian procedure [180 297, case, that election of 939], P.2d so 639 Cal.Rptr. reapportionment know for the conduct of orderly ficials would lines in time boundary precise v. Young the June 1982 Election. in Primary Similarly, Carmel-By-The-Sea 259, 1, 225, 1313], (1970) 2 Cal.3d 466 P.2d 3 A.L.R.3d 272 Cal.Rptr. [85 law as an unconstitu our decision to invalidate an extensive financial disclosure relief tional breach of made to afford immediate “final forthwith” privacy law. We to and were to that subject candidates officials who government immediate attention. stressed the circumstances” which our “exigent required in (P. 263.) finality No similar or cause” immediate justifies urgency “good case. present Charles Evans left reminder: “There are two things us with a Hughes gentle ” which a to This against Judge ought guard, precipitancy procrastination. matter, court has not taken it having its this procrastinated disposition it ex- from the Court of before which it was and having given Appeal pending 24(a) We now are within our rule Our Court of hearing. Appeal pedited period. has continued to function and we are told that existing this during period, on the have been months. vacancies court unfilled for view, under the action is and unwarranted my majority’s precipitous necessity circumstances. There has been no demonstration of unusual any legal traditional, which our from the might justify orderly disposition departure this We should not do reasons. so appeal. any unspoken J.,*
Caldecott, Franson, J.,* concurred. REYNOSO, J. a on denial of dissenting rehearing requires opinion (1961) v. 17 response. People Love 56 Cal.2d 756 Cal.Rptr. [16 33, 809].) to the dis- 366 P.2d I cannot be deemed Cal.Rptr. acquiescent rehear- sent’s view with to the this court denying used respect procedures decision this case final. ing making time Justices of this court have dissented to orders denying from time (see, their views on the merits express Love, 720, 748; (1955) v. Chadwick Buckley v. 56 Cal.2d e.g., People supra, 45 that a modifica- 242]) Cal.2d 208 P.2d P.2d or argue [288 Olson v. (see tion did not cure the defects of the original opinion adequately 532]; P.2d Agnew 27 Cal.3d Cory Cal.Rptr. [178 The dissent in 385]). Los P.2d City Angeles Cal.2d case, however, “. . . or (the may raised this is not directed to the merits points * of the Judicial Council. Assigned by Acting Chairperson but, rather, 259)) not have merit raises justify {ante, rehearing” questions regarding rehearing petition used procedures disposing and other A court decide that the issues filings. majority did course *18 Nevertheless, raised on were meritless. the dissent mistakenly sug- that the without due con- gests was denied summarily merits, sideration of the and that the order the decision final deviated making from the “usual practice.”
It is to these as to the implications decisionmaking integrity process case, final, is my response directed. This is to com- being longer subject merits; ment on collateral, I will limit to the accordingly, my response pro- cedural matters raised the dissent. by
This court unquestionably has the
to order its decisions final forthwith.
power
The California
Rules Court
Court
direct
provide
Supreme
shown,
immediate issuance
aof
remittitur
“For
cause
good
stipulation
(Rule
...”
parties,
25(b).)
that one
case,
Noting
disavowed the
filed in
this
stipulation
final,
dissent
there was no
argues
“good cause” to make “this
but
appeal”
it concedes that the important issues in this case were
review
given “expedited”
these
throughout
(Ante,
proceedings.
With due
this
respect,
case is
normal
characterized
We
“appeal”
by
dissent.
treated the ap
pealable
judgment
this case
anas
writ
extraordinary
proceeding,
proper
in cases where “the
interest
public
more
determination of the
requires
rapid
of the .
constitutionality
. . statute than can be
in the
normal course
provided
509,
review.”
appellate
(Brown v. Superior
(1971)
Court
5 Cal.3d
515 [96
584,
Cal.Rptr.
The foregoing
demonstrates that the
order was not
amply
finality
majority’s
motivated by
considerations
from the
issues. More
“unspoken”
apart
legal
over, in
case we have found on
cited
every
issue—including
authority
dissent
v.
(Assembly
(1982)
262 Dist. “final without Corona Hosp. forthwith” also explanation. Unified (1964) 61 854 P.2d
Superior
Cal.2d
395
Cal.Rptr.
[40
817]
remedy;
forthwith” without explanation;
inadequate
proceeding
appeal
[“final
Indeed,
statute].)
the cases in
prohibition by taxpayers challenging validity
(but
which this court has made its decision final forthwith without explanation
self-evident)
where the
are
most
of the more
recent
urgency
legion—the
than 50
v. Eu
1
(1982)
Cal.Rptr.
such cases
Brosnahan
31 Cal.3d
being
[181
200],
641 P.2d
v. Panish
Cal.3d
(1980)
Cal.Rptr.
Stanton
107 [167
1372],
(1980)
Cal.Rptr.
P.2d
Chatterton v. Eu
Nevertheless the dissent that the has broken asserts inexplicably majority tradition in this case. In to the of the body opinion the dissent looks particular, that in there were cir Carmel-By-The-Sea “exigent that case argues not the if cumstances” here. To one reads the present contrary, quoted phrase sentence, the the instant context of whole it is clear that both Carmel and case ... a numerous affecting of constitutional “presented question magnitude . . to our officials . which under at public exigent brought circumstances [was] .” Carmel-By-The-Sea, supra, tention two officials . . . by public (City of 263.) Cal.3d In fact been in this case. may at the have even exigency greater p. First, the the Carmel to clearly by majority sentence is a above-quoted response view, contrived, there case, that the that “that the lawsuit was dissent’s the of no individuals are involved. controversy, no legitimate rights [and] 275; Mosk, J., held (Id., dis.) the Carmel court the Secondly, . . .” at p. unconstitutional, the statute at therein thereby possibility issue precluding Here, contrast, the stat the by enforcement during 30-day prefinality period. from enforceable, it would have been its ute was held constitutional and which unmeritorious. enactment but for this lawsuit ultimately proved filed until after It is order finality also that the significant majority’s were considered. amici curiae’s and real filing petition rehearing party’s that this With all I must therefore take issue with the dissent’s assertion respect, amici curiae of the opportunity court’s order finality deprived party decision in the of the be heard. brief of the events following filing A chronology ante, 256) will suffice to at (see p. this case minute order of Nov. and the show the consideration given dissenting justices parties. filed, the 3,1982, par- decision was On November two after this court’s days on No- counsel filed a their signed respective ties record stipulation, by noted, earlier final forthwith.” As vember that the decision become “may issuance direct the immediate rule 25(b) provides Supreme shown, of a remittitur “For . . cause or on good parties, stipulation case, Both criteria been voted to ac- having met this a of this court majority cept parties’ stipulation.
Though at this all point to this had to im- litigation stipulated mediate finality, or a thereby their to seek either waiving right modification of the view opinion, dissenting was nevertheless justice that this court’s finality order would consideration “useful preclude bench, bar, scholars, criticism” that might be filed “the by amici legal curiae, (Ante, other interested of the ex- persons.” light [or] case, review heretofore pedited to the given majority issues important of the were not justices that the action persuaded litigants, and urged by court, be agreed delayed on the mere future speculative possibility filings by Due to the nonparties. involved in the delay dis- preparation sent, our finality order was not until November ready filing
On that date we received a letter from amici curiae urging finality decision not be accelerated. Amici curiae—not to the action—have being parties standing (rule 27(a) (b)) and are bound *20 rule that general must they the case as it and “accept[] [they] find[] ‘launch out upon juridical a expedition own unrelated to the actual ap- [their] White, (E. record.’” pellate L. (1978) Inc. v. 21 City Huntington Beach 497, Cal.3d 510-511 614, 505], 579 P.2d Pratt v. Cal.Rptr. quoting [146 Coast Inc. Trucking, 332].) 228 Cal.App.2d 143 Cal.Rptr. [39 Nevertheless, this court considers amici curiae routinely briefs suggesting rehearing modification of the on the opinion court’s own motion. In this case, however, amici did a not brief issue in single support rehearing.
only legal argument alluded to in one sentence which states that appears finality decision urged by would amici “from parties inviting preclude the court’s . attention to . . serious long range consequences opinion’s statement on 7 to the page effect that in the statutes enactments contained at are large enacted’; ‘Deemed (This when temporary ...” was later argument raised in court.) real party’s for petition and was considered rehearing letter Amici’s also the intent to expressed on this “expand” presumably point, a General, in subsequent filing. (Subsequently, the counsel for Attorney peti- Brown, tioner filed a writ response the court to issue the urging peremptory forthwith.)
The dissent was redrafted to reflect that the order majority’s finality proposed time, would “amici deny our their addi- opportunity, rule during presenting tional contentions. . .” and and amici’s summarily reject[] “foreclose[] merits, without even presentation (Ante, its ...” considering possible noted, Moreover, As there p. were no “contentions” amici to consider. never file did “additional” authorities within the time rule period prescribed
264
27(b) (which order). Nov. to the of our Though expired 1982—prior filing to there is it doubtful that are entitled more authority seems amici point, Further, time than allowed under 27(b) rule to parties request rehearing. (nor is not full court to does it wait usually) expiration 30-day required (rule 24(a)) the dissent’s before Under prefinality period denying rehearing. amici and other are of “reasonable reasoning, interested persons deprived time” to the court to sua case which request grant sponte every is within the denied 30-day period. Following dissent, the revision of the order ready our was again filing date, however, filed, on November 1982. On that Tweedy inter party alia, a motion to strike the a extension of and time to stipulation request file a rehearing.
“A form if within it is stipulation proper binding upon Beach, 33 Cal.2d authority attorney. City Long Palmer v. Court, 952]; 141-144 P.2d Brock 634 v. 29 Cal.2d Superior [199 [177 521].) law, P.2d rule or A.L.R. Unless court contrary public also National Bank v. stipulation is the court. policy, (Capital binding upon Smith, (2d 665]; Witkin Procedure ed. P.2d Cal. Cal.App.2d [144 1970) 138.)” Attorneys, (Bechtel Corp Superior § 138].) Cal.App.3d Cal.Rptr. strike,
In an to the Tweedy affidavit memorandum attached motion consent, counsel, his without declared his without “acting knowledge, [his] wishes, his waive filed a against signed [stipulation] purports” whether Tweedy’s his remedies. Without as to appellate any opinion expressing *21 an attorney was to “strong sufficient overcome the showing presumption” Witkin, Cal. (1 with Pro- acts and within of his authority employment scope (2d 119)—and intimating any ed. 1970) Attorneys, cedure without p. § to Tweedy on allowed of counsel—we impropriety part distinguished to for rehear- disavow the of intent file a light petition his declared stipulation considered.” “to draw to this Court’s issues not attention ing important December In this of time until regard, an extension Tweedy requested for Yet, file was to file a to a for he able petition petition rehearing. normal 15-day on November 16—the before rehearing day expiration last all the 27(b). justices rule was reviewed The period prescribed petition consideration, and, after due denied. assertion that but with the dissent’s
I must take issue respectfully, strongly, it according ap- “the . . . denied that without majority summarily petition this court.” filed with heretofore consideration propriate given petitions with the in accord for was of (Ante, 259.) disposed The rehearing petition (See usual internal Court Case Pending this court. Cal. practice Supreme Service, 1001-1004; & Law Clerks Special Thompson, Report, pp. Oakley 77-82; Seaton, (1980) Judicial Goodman & Process pp. Decision, Foreword: Internal and Current Concerns Ripe Workings for 312-316.) Supreme Immediately 62 Cal.L.Rev. California recorded, after filing, was a petition assigned internally processed, staff for justice’s of a memorandum. After a preparation thorough analysis time issues raised for the Im (but County first see petition hearing perial McDougal (1977) 19 Cal.3d 564 P.2d Cal.Rptr. 14]) contentions defects in our the memoran regarding alleged opinion, dum concluded that real meritless party’s contentions—new or rehashed—were and did not warrant a The were memorandum and rehearing. petition distributed to the and a conference for the afternoon of justices, was scheduled court, course, November 18. The sits in bank to decide matters brought matters, before it. In most discretion, this court has full concurrence of at upon least four justices, (or decide whether or not to a grant hearing rehearing) in any Mosk, case. particular The generally Foreward: Rule Four in (1975) 63 case, Cal.L.Rev. In this a of the court decid majority California ed—after consideration of the briefs and discussion of the merits and issues summarized in the conference memorandum—that should be denied. rehearing This is not unusual as the vast are denied. As majority petitions noted, earlier there is no be requirement denied petition after expiration 24(a). in rule 30-day period prescribed used in procedures this case fully conformed to this court’s internal prac- tice. No one has suggested would have received more careful consideration had conference, it been considered at a later two or that days insufficient time Moreover, to review the merits. a the con- delay scheduling ference would have this result: a have produced of the court would minority prevailed, by delay, their immediate position against finality. sum, the court a exemplified bend-over-backwards stance throughout
these proceedings, and the and amici were litigants afforded “reasonable op to be portunity heard” Water (Metropolitan Dist. v. Adams Cal.2d *22 257]), P.2d the dissent’s notwithstanding contrary suggestion. This court all times acted in accordance with its rules—both internal and codified—in considering and amici. respective positions litigants With to real respect party’s each had full petition hearing, justice opportuni memorandum, merits, to review the ty and conference petition consider discuss matter at conference. The is not one of but question “precipitancy” thoroughness review. (Compare, example, procedure rehearing commonly employed Court of where no memorandum is Appeal held; rather, and no prepared conference each reads the justice petition her his or signs vote—for or cover of against rehearing—on the the petition, often on the same it is day filed.)
The minute 18, 1982, order I filed as Chief Justice on November Acting makes clear the in this position majority case. constitutional to the statute challenge (after been found having unmeritorious this court ex- review), pedited majority the court been convinced that having no issue raised on so) to do warranted (by rehear- party other ing, waived parties having their right request modification by (or, amici, stipulation in the case of file a brief by failing within the time 27(b)), rule there prescribed by was no reason further legal delay “implementation our Constitution entrusts to the responsibilities (Minute ante, Legislature.” order of Nov. at p.