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California Attorneys v. Schwarzenegger

May 28, 2009; as modified 06/02/2009


APPEAL from a judgment of the Superior Court of Sacramento County, Gail D. Ohanesian, Judge. Affirmed. (Super. Ct. No. 07CS00835).

The opinion of the court was delivered by: Raye, J.


In these mandamus proceedings, the Attorney General and the union representing the lawyers in his office, among others, assert that the failure of the collective bargaining process under the State Employer-Employee Relations Act (SEERA; Gov. Code, § 3512 et seq.) has caused a compensation crisis compromising public service and threatening the Attorney General‟s ability to uniformly and adequately enforce the law. Twenty-eight years ago the dissenters in Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168 (Pacific Legal Foundation) perceived a conflict between the mandate imposed upon the State Personnel Board (SPB) to enforce a civil service system "based on merit" and the collective bargaining process mandated by SEERA. (Id. at pp. 203-209 (dis. opn. of Richardson, J.).)

Suggesting the dissenters were prescient, the union argues "[t]he end result of an unfettered application of the collective bargaining system is that the legal professionals in Bargaining Unit 2 are being grossly under-compensated compared to those in other civil service job classifications" to the detriment of merit principles. The union asks this court to remedy the alleged pay disparity with other public lawyers by ordering the Department of Personnel Administration (DPA) to adopt a parity formula or, alternatively, to base compensation on a "meaningful salary survey."

To justify the imposition of this radical remedy by a Court of Appeal rather than by the Legislature or by way of the collective bargaining process, the union urges us to employ an expansive definition of the merit principle and the concept of "like pay for like work" that is not found in the language of the Constitution, the statutes, or in Supreme Court precedent.

We, however, must adhere to the plain meaning of those documents and will await a creative resolution of the wage crisis, if any, by the Legislature or by the people through the initiative process. The judgment denying the request for a peremptory writ of mandate is affirmed.


Article VII, like its predecessor, former article XXIV, of the California Constitution provides that "[i]n the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination." (Cal. Const., art. VII, § 1, subd. (b); see Cal. Const., former art. XXIV, § 1.)*fn1 Article VII also establishes a nonpartisan five-member Personnel Board to "enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions." (Art. VII, § 3, subd. (a).)

In 1934 the people by initiative adopted article XXIV.*fn2 The ballot argument accompanying the initiative measure stated: "The purpose of this constitutional amendment is to promote efficiency and economy in State government. The sole aim of the act is to prohibit appointments and promotion in State service except on the basis of merit, efficiency and fitness ascertained by competitive examination. Appointments of inefficient employees for political reasons are thereby prohibited, thus eliminating the "spoils system‟ from State employment. [¶] . . . [T]his constitutional amendment provides: (1) Employment in the classified service based solely on merit and efficiency; (2) a nonpartisan Personnel Board; (3) prohibition against exemptions from the merit system of employment; (4) correction of the temporary political appointment evil. [¶] Having by constitutional mandate prohibited employment on any basis except merit and efficiency, thereby eliminating as far as possible the "spoils system‟ of employment, the Legislature is given a free hand in setting up laws relating to personnel administration for the best interests of the State, including the setting up of causes for dismissal such as inefficiency, misconduct or lack of funds." (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 6, 1934), argument in favor of Prop. 7, p. 12.)

"As this ballot argument demonstrates, the "sole aim‟ of the amendment was to establish, as a constitutional mandate, the principle that appointments and promotions in state service be made solely on the basis of merit. Having established this "merit principle‟ as a matter of constitutional law, and having established a nonpartisan Personnel Board to administer this merit principle, the constitutional provision left the Legislature with a "free hand‟ to fashion "laws relating to personnel administration for the best interests of the State.‟" (Pacific Legal Foundation, supra, 29 Cal.3d at pp. 183-184, fn. omitted.)

Wielding that free hand, the Legislature in 1977 enacted SEERA (Stats. 1977, ch. 1159, § 4, p. 3751, codified in Gov. Code, § 3512 et seq.) to regulate the state‟s labor relations with state employees. The preamble explicitly reaffirmed the primacy of the merit principle as follows: "Nothing in this chapter shall be construed to contravene the spirit or intent of the merit principle in state employment, nor to limit the entitlements of state civil service employees . . . provided by Article VII of the California Constitution or by laws or rules enacted pursuant thereto." (Gov. Code, § 3512.)

Rejecting a constitutional challenge to SEERA, the majority of the Supreme Court concluded that "the collective bargaining process established by SEERA does not on its face conflict with the basic constitutional principles of article VII, section 1, subdivision (b). . . . [N]othing in the history of the amendment suggests that the establishment of a general system of appointment and promotion based on merit proposed to prohibit the Legislature from adopting a labor relations policy affording employees a meaningful voice in determining the terms and conditions of their employment; instead, the amendment simply sought to eliminate the "spoils system‟ of public employment." (Pacific Legal Foundation, supra, 29 Cal.3d at pp. 184-185, fn. omitted.)

The union contends, however, that the Supreme Court left open the possibility that SEERA could be unconstitutionally applied to a particular bargaining unit and the memorandum of understanding that results from the collective bargaining process. The majority wrote: "We recognize, of course, that theoretically the product of the collective bargaining process may possibly in specific instances conflict with the merit principle of employment embodied in article VII. Such a conflict would be most evident, for example, if the Governor and an exclusive bargaining representative agreed to a memorandum of understanding purporting to authorize hiring or promotion on a politically partisan basis." (Pacific Legal Foundation, supra, 29 Cal.3d at p. 185.) The union insists that the pay disparity between its members and other public employees who perform the same essential work violates the merit principle enshrined in article VII and thus presents the constitutional question left open in Pacific Legal Foundation.


California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (the union) is the exclusive representative for approximately 3,500 employees in Bargaining Unit 2 for purposes of collective bargaining under SEERA. It is one of the smallest unions representing state employees and consists of attorneys, administrative law judges, deputy labor commissioners, and deputy parole hearing commissioners. For many years the union has been frustrated in its attempt to secure higher wages through collective bargaining and legislation.

On June 29, 2007, the union filed a petition for alternative writ of mandate and/or declaratory relief. The following day, its memorandum of understanding with the State of California expired. In denying the petition, the trial court opined that the union was seeking "an unrealistic remedy from this Court" and that the essence of the petition was a complaint that DPA was not bargaining in good faith. Nevertheless, the court allowed the union leave to amend.

In August 2007 the union filed an amended petition in the superior court and an unfair practice charge with the Public Employment Relations Board (PERB) supported by many of the same declarations submitted in the mandamus proceedings. The following month PERB dismissed the unfair practice charge because it "did not state a prima facie case."

As alleged in the amended petition, Governor Arnold Schwarzenegger and the Director of DPA (defendants) are permitting salary measures for Bargaining Unit 2 that conflict with the merit principle SPB‟s constitutionally mandated classification system serves; violating the California Constitution by failing to adhere to the like-pay-for-like-work principle embodied in the merit system; violating their constitutional obligation to prevent the depletion of the quality of the public workforce in Bargaining Unit 2 and protect the civil service system from neglect, deterioration, diminution, dissolution, or destruction; and are interfering with the Attorney General‟s ability to carry out his own constitutional mandate to ensure adequate and uniform enforcement of the laws.

Attached to the amended petition are voluminous documents to support the union‟s allegation that its members are vastly underpaid relative to other public attorneys throughout the state. An expert in human resource management and employment relations opined that under-compensation has rendered the state "the employer of last resort." He characterized DPA‟s attitude toward a high job vacancy rate as "both sanguine and cavalier." He provided an abundance of statistical evidence supporting the notion that Bargaining Unit 2 attorneys are significantly underpaid. For example, his declaration states that inexperienced lawyers who work for the cities and counties of Alameda, Los Angeles, Sacramento, San Diego, and San Francisco are paid 48 percent more on average than Bargaining Unit 2 attorneys with the same amount of experience, and inexperienced lawyers who work for the educational, government, and nonprofit sectors are paid 60 percent more on average than Bargaining Unit 2 attorneys with the same amount of experience. The expert found that the pay differential was even greater for more ...

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