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Professional Engineers in California Government v. Schwarzenegger

October 4, 2010

PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT, ET AL., PLAINTIFFS AND APPELLANTS,
v.
ARNOLD SCHWARZENEGGER, AS GOVERNOR, ETC., ET AL., DEFENDANTS AND RESPONDENTS;
JOHN CHIANG, AS STATE CONTROLLER, ETC.,
DEFENDANT AND APPELLANT.
CALIFORNIA ATTORNEYS, ADMINISTRATIVE LAW JUDGES AND HEARING OFFICERS IN STATE EMPLOYMENT, PLAINTIFF AND APPELLANT,
v.
ARNOLD SCHWARZENEGGER, AS GOVERNOR, ETC., ET AL., DEFENDANTS AND RESPONDENTS;
JOHN CHIANG, AS STATE CONTROLLER, ETC., DEFENDANT AND APPELLANT.
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000, PLAINTIFF AND APPELLANT,
v.
ARNOLD SCHWARZENEGGER, AS GOVERNOR, ETC., ET AL., DEFENDANTS AND RESPONDENTS; JOHN CHIANG, AS STATE CONTROLLER, ETC., DEFENDANT AND APPELLANT.



Ct.App. 3 C061011 Sacramento County Super. Ct. No. 34-2008-80000126, Ct.App. 3 C061009 Sacramento County Super. Ct. No. 34-2009-80000134, Ct.App. 3 C061020 Sacramento County Super. Ct. No. 34-2009-80000135. Judge Patrick Marlette.

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

Filed 10/04/2010 (this opn. precedes companion case, S181760, also filed 10/4/10)

On December 1, 2008 -- faced with (1) a large current state budget deficit that was projected to grow to more than $40 billion by the end of the 2009-2010 fiscal year, and (2) the very serious prospect that by as early as February 2009 the state would run out of cash to pay its ordinary expenses -- the Governor of California declared a fiscal emergency, called the Legislature into special session, and submitted to the Legislature a comprehensive plan to address the budget problem. The Governor's budget plan included, among many other cost-saving features, two proposed statutory provisions that would direct the Department of Finance and the Department of Personnel Administration to implement, for the remainder of the 2008-2009 fiscal year and for the entire 2009-2010 fiscal year, a mandatory one-day-a-month unpaid furlough of most state employees employed by the executive branch, a proposal that would save the state approximately $37.5 million per month by reducing by approximately 5 percent the wages paid to each of the affected employees.

Two and one-half weeks later, on December 18, 2008, the Legislature passed its own proposed comprehensive budget legislation, comprising 15 separate budget-related bills. Among many other differences from the Governor's proposal, the Legislature's alternative plan did not include the Governor's recommended furlough provision.

On December 19, 2008, the Governor issued the executive order that lies at the heart of the present litigation, instructing the Department of Personnel Administration to implement, beginning on February 1, 2009, and continuing through June 30, 2010, a mandatory two-day-a-month unpaid furlough of most state workers employed in the executive branch.

Shortly after the Governor's issuance of this executive order, a number of employee organizations -- the recognized, exclusive bargaining representatives of a majority of the workers employed by the State of California -- filed three separate, but similar, lawsuits, contending that the Governor lacked authority to implement unilaterally an involuntary furlough of represented state employees that reduced such employees' hours and earnings by approximately 10 percent. The trial court, acting on an expedited basis, treated the three cases as related, heard argument in the cases together, and thereafter issued a single ruling rejecting the broad attacks made by the employee organizations on the executive order and concluding that the Governor possessed the authority to impose the furlough in response to the fiscal emergency facing the state.

The employee organizations (hereafter sometimes referred to as plaintiffs) appealed from the trial court's ruling. After briefing in the Court of Appeal was completed and the three cases were consolidated for purposes of oral argument and decision, but before the Court of Appeal set the matter for oral argument or issued a decision, we exercised our authority pursuant to article VI, section 12, subdivision (a) of the California Constitution to transfer the consolidated matter to this court for oral argument and decision.

For the reasons explained below, we conclude that, under existing constitutional provisions and statutes, the Governor on December 19, 2008, possessed authority to institute a mandatory furlough of represented state employees, reducing the earnings of such employees, only if specifically granted such unilateral authority in an applicable memorandum of understanding entered into between the state and the employee organization representing the affected employees. Although there is considerable doubt whether the applicable memoranda of understanding granted the Governor such authority, we further conclude that even if the Governor lacked authority to institute the challenged furlough plan unilaterally, plaintiffs' challenge to the furlough plan now before us must be rejected. In mid-February 2009 -- shortly after the furlough program went into effect -- the Legislature enacted, and the Governor signed, legislation that revised the Budget Act of 2008 (2008 Budget Act) by, among other means, reducing the appropriations for employee compensation contained in the original 2008 Budget Act by an amount that reflected the savings the Governor sought to obtain through the two-day-a-month furlough program. The February 2009 legislation further provided that the specified reduction in the appropriations for employee compensation could be achieved either through the collective bargaining process or through "existing administration authority." That phrase, in the context in which the revised budget act was adopted and in light of the provision's legislative history, reasonably included the furlough program that was then in existence and that had been authorized by the current gubernatorial administration. In particular, the bill analyses considered by the Legislature made specific reference to furlough-related reductions of employee compensation costs. Under these circumstances, we conclude that the Legislature's 2009 enactment of the revisions to the 2008 Budget Act operated to ratify the use of the two-day-a-month furlough program as a permissible means of achieving the reduction of state employee compensation mandated by the act.

Accordingly, we conclude that the 2009 budget legislation validated the Governor's furlough program here at issue, and reject plaintiffs' challenge to that program.

I.

The California Constitution provides that "[t]he Legislature shall pass the budget bill by midnight on June 15 of each year" (Cal. Const., art. IV, § 12, subd. (c)(3)), but, as we noted in White v. Davis (2003) 30 Cal.4th 528, 533, "in recent years the timely adoption of the budget bill in California has proven to be the exception rather than the rule." Enactment of the initial 2008 Budget Act was an unusually difficult and protracted task and, instead of being passed by June 15, 2008, the budget bill that year was not enacted by the Legislature and signed into law by the Governor until September 23, 2008.

Although the national and state economies already were in dire straits when the 2008 Budget Act finally was enacted, shortly thereafter the economy further deteriorated dramatically in light of the financial credit crisis and the resulting stock market collapse in October 2008 and a sharp decline in real estate values and consumer spending. In early November 2008, the California Department of Finance reported that the state faced a revenue shortfall of $11.2 billion for the 2008-2009 fiscal year and a much higher budget deficit by the end of the 2009-2010 fiscal year, and further stated that "[i]f no action is taken to reduce spending, increase revenues, or a combination of both, the state will run out of cash in February and be unable to meet all of its obligations for the rest of the year." (Cal. Dept. of Finance, Rep., Governor's Budget, Special Session 2008-09, p. 1, at [as of Oct. 4, 2010].)

On November 6, 2008, the Governor published a letter addressed to all state employees, announcing that in order to cope with the state's worsening fiscal situation he would propose, among other spending reductions, a number of cuts related to state employees, including a one-day-a-month furlough of state employees that would result "in a pay cut of about 5 percent" but that would not "affect retirement and other benefits for which you are eligible." The letter declared that "[a]ll the actions we're proposing must first be approved by the Legislature."*fn1

On that same day (Nov. 6, 2008), the Governor called the Legislature into special session and submitted a package of proposed legislative measures to address the state's fiscal problems.*fn2 The package included a proposal to add two new sections to the Government Code (proposed Gov. Code, §§ 19826.4, 19826.45), provisions that would require the Department of Finance and the Department of Personnel Administration (DPA) to implement a program for a one-day-a-month furlough of state employees for the remainder of the 2008-2009 fiscal year and for the entire 2009-2010 fiscal year.*fn3 The Legislature, which was in the final days of the 2007-2008 regular legislative session, did not act on the Governor's proposed budget legislation, and the legislative session ended on November 30, 2008. (Cal. Const., art. IV, § 3, subd. (a).)

On December 1, 2008, after the newly elected legislators took office and the 2009-2010 regular legislative session began (Cal. Const., art. IV, §§ 2, subd. (a), 3, subd. (a)), the Governor issued a proclamation declaring a fiscal emergency pursuant to the provisions of article IV, section 10, subdivision (f) of the California Constitution, and calling the Legislature into special session as provided by that constitutional provision. The Governor resubmitted to the Legislature the same comprehensive budget legislation that he had proposed the previous month, including the proposal to add specific provisions to the Government Code directing the implementation of a one-day-a-month furlough of state employees through the end of the 2009-2010 fiscal year. (See Assem. Budget Com., Summary of Governor's Proposed Dec. 2008-09 Budget Adjustments (Dec. 2, 2008) p. 14.)

The Legislature did not enact the Governor's proposed budget package but instead, on December 18, 2008, passed an alternative comprehensive budget package (comprising 15 separate budget-related bills). The Governor expressed immediate disapproval of the Legislature's action and subsequently (on Jan. 6, 2009) vetoed all 15 bills.*fn4

On December 19, 2008, the Governor issued the executive order here at issue. (Governor's Exec. Order No. S-16-08 (Dec. 19, 2008).) Citing the worsening financial crisis and the real possibility that the state would lack sufficient cash to meet its payroll and other obligations beginning in February 2009, and asserting that "in the December 1, 2008 fiscal emergency extraordinary session, the Legislature failed to effectively address the unprecedented statewide fiscal crisis," the executive order directed the DPA to adopt a plan -- to be effective February 1, 2009, through June 30, 2010 -- "to implement a furlough of represented state employees and supervisors for two days per month, regardless of funding source" (italics added) and also "to implement an equivalent furlough or salary reduction for all state managers, including exempt state employees, regardless of funding source." (Ibid.) The order indicated that the furlough plan would include a limited exemption process. After the Governor issued his order, the DPA notified the certified bargaining representatives of represented state employees of the Governor's order and offered to meet and confer with them over the impact of the furloughs. Thereafter the DPA met with various bargaining units.

Shortly after the executive order in question was issued, a number of employee organizations -- recognized bargaining representatives for the majority of represented state employees -- filed three separate actions, challenging the validity of the Governor's executive order on a variety of grounds. On December 22, 2008, Professional Engineers in California Government and California Association of Professional Scientists filed a petition for writ of mandate in the Sacramento Superior Court (No. 34-2008-80000126), naming the Governor, the DPA, and the State Controller as defendants and seeking an order to restrain implementation of the executive order. On January 5, 2009, California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (CASE) filed a similar petition in Sacramento Superior Court (No. 34-2009-80000134), and on January 7, 2009, Service Employees International Union Local 1000 (SEIU) also filed a similar petition in Sacramento Superior Court (No. 34-2009-80000135).

On January 9, 2009, the Director of the DPA sent a memo to all state departments, indicating that the unpaid furlough program would be implemented by a general closing of state government operations on the first and third Friday of each month, beginning on February 6, 2009. For state operations that cannot close (such as prisons and hospitals), the memo indicated that agency heads could request approval from the DPA to use a "self-directed" furlough program for specific positions, under which employees either would choose two furlough days per month with the approval of their supervisors, or accrue two furlough days to be taken when feasible within two years following the conclusion of the furlough program. The memo further stated: "Salaries will be adjusted to reflect the unpaid furlough days, but benefits will remain the same (i.e., the furlough will not affect payouts for unused leave, service credit, health and retirement benefits, etc.)."*fn5 (DPA, State Employee Furlough per Governor's Executive Order S-16-08 (Jan. 9, 2009) [as of Oct. 4, 2010] (January 9, 2009 DPA Furlough Memo).)

Meanwhile, in the three pending Sacramento Superior Court actions, all parties stipulated to a briefing and hearing schedule that would permit the designated judge (Hon. Patrick Marlette) to hear the three cases together prior to February 1, 2009, the date on which the furlough program was scheduled to begin. On January 29, 2009, the trial court conducted a single hearing in all three cases, and on January 30 the court issued a single ruling denying all three petitions on the merits and ordering the State Controller (Controller) to comply with the executive order in the course of issuing pay warrants to the affected state employees. Thereafter, on February 11, 2009, the court entered a formal judgment denying the petitions.

Plaintiffs and the Controller filed timely appeals in the Court of Appeal in all three cases. On February 2, 2009, SEIU filed a petition for a writ of supersedeas in the Court of Appeal, requesting that the appellate court stay implementation of the furlough program pending appeal. The appellate court denied the petition for supersedeas on February 27, 2009, and the Controller implemented the furlough order during the pendency of this appeal insofar as the order applied to the employees represented by plaintiff employee organizations.

Meanwhile, the Controller had sent a letter to the trial court on February 3, 2009, requesting that it clarify whether its January 30 ruling applied to persons employed in offices headed by independently elected constitutional officers (such as the Attorney General and the Controller). In response, the trial court, on February 4, 2009, issued an order stating that no issue regarding application of the executive order to employees of independently elected constitutional officers had been raised or litigated in the writ matters on which the court had ruled, and indicating that its ruling expressed no view regarding that issue. The Controller subsequently informed the Governor that, in issuing salary warrants, he (the Controller) would not implement furloughs for the employees of the state's independently elected constitutional officers without a court order directing him to do so.

On February 9, 2009, the Governor filed a petition for a writ of mandate in Sacramento Superior Court against the Controller, requesting an order compelling the Controller to implement furloughs for the independently elected constitutional officers. (Schwarzenegger v. Chiang (No. 34-2009-80000158).) On March 12, 2009, the trial court ruled that the Controller must implement the Governor's furlough order with respect to employees who work for independently elected constitutional officers. The Controller appealed from that ruling, and the trial court's order in that matter has been stayed by the appeal, which is currently pending in the Court of Appeal, Third Appellate District (C061648).*fn6

On February 19, 2009, after extended discussion and negotiation, the Legislature passed, and on February 20, 2009, the Governor signed, Senate Bill No. 2 (2009-2010 3d Ex. Sess.) (Senate Bill 3X 2), which revised the 2008 Budget Act in response to the fiscal emergency. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 2 (sometimes hereafter revised 2008 Budget Act).) Section 36 of Senate Bill 3X 2 added section 3.90 to the original 2008 Budget Act (Stats. 2008, ch. 268). Section 3.90, subdivision (a) provides in part: "Notwithstanding any other provision of this act, each item of appropriation in this act . . . shall be reduced, as appropriate, to reflect a reduction in employee compensation achieved through the collective bargaining process for represented employees or through existing administration authority and a proportionate reduction for nonrepresented employees (utilizing existing authority of the administration to adjust compensation for nonrepresented employees) in the total amounts of $385,762,000 from General Fund items and $285,196,000 from items relating to other funds." As discussed below (post, at pp. 68-74), the amount of the reduction in appropriations for employee compensation set forth in section 3.90 reflected, among other proposed reductions, the reductions that the Governor proposed to achieve through the two-day-a-month furlough of state employees.*fn7 Section 3.90, subdivision (a) also indicated the Legislature's intent to make similar reductions in employee compensation for the 2009-2010 fiscal year.*fn8

On the same date (Feb. 19, 2009) the Legislature enacted legislation amending the 2008 Budget Act (revising the budget for the 2008-2009 fiscal year), it also passed the initial version of the Budget Act of 2009 (Sen. Bill No. 1 (2009-2010 3d Ex. Sess. (Senate Bill 3X 1), enacted as Stats. 2009, 3d Ex Sess. 2009-2010, ch. 1), which set forth the budget for the 2009-2010 fiscal year (2009 Budget Act). The 2009 Budget Act included the reduced appropriations for state employee compensation proposed by the Governor, which reflected the savings generated by the two-day-a-month furlough plan, and included language in section 3.90 of that act identical to language in the revised 2008 Budget Act, indicating that the reductions in employee compensation are to be achieved "through the collective bargaining process for represented employees or through existing administration authority and a proportionate reduction for nonrepresented employees (utilizing existing authority of the administration to adjust compensation for nonrepresented employees). . . ." (Sen. Bill 3X 1, § 3.90, subd. (a).)

The revised 2008 Budget Act and the initial 2009 Budget Act were signed into law on February 20, 2009, as part of a comprehensive budget package that included a number of proposed constitutional amendments that were to be put before the voters at a special election to be held shortly thereafter.*fn9 At that special election, held on May 19, 2009, the voters rejected most of the ballot propositions that were part of the budget package.

After the May 19, 2009 election, the state's fiscal crisis continued to worsen. On July 1, 2009, the Governor issued another executive order, instituting a third unpaid furlough day each month for state employees, to run from July 1, 2009 to June 30, 2010. (Governor's Exec. Order No. S-13-09 (July 1, 2009).)

On July 24, 2009, the Legislature passed Assembly Bill No. 1 (2009-2010 4th Ex. Sess.) (Assembly Bill 4X 1), which revised the 2009 Budget Act. (Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 1.) As enacted by the Legislature, Assembly Bill 4X 1 further reduced the appropriations for employee compensation and retained the same language regarding the manner in which the reductions were to be achieved as appeared in the revised 2008 Budget Act and the initial 2009 Budget Act. (Assem. Bill 4X 1, § 552 [amending § 3.90 of the 2009 Budget Act].) The Governor signed this bill into law on July 28, 2009. The present litigation does not involve the validity of the third furlough day that was in effect from July 1, 2009 to June 30, 2010.

The two-day-a-month furlough plan that began on February 1, 2009, and the subsequent third-day-a-month furlough plan that began on July 1, 2009, both terminated on June 30, 2010.

On July 28, 2010 -- a budget act for the 2010-2011 fiscal year not having been timely enacted and the state's serious budget problems continuing unabated -- the Governor issued a new executive order, directing the DPA to implement a three-day-a-month furlough plan to begin on August 1, 2010, and to continue until "a 2010-11 budget is in place and the Director of the Department of Finance determines that there is sufficient cash to allow the State to meet its obligations to pay for critical and essential services to protect public health and safety and to meet its payment obligations protected by the California Constitution and federal law." (Governor's Exec. Order No. S-12-10 (July 28, 2010) p. 2.) Prior to the first furlough day scheduled under the newly promulgated furlough plan, numerous employee organizations filed lawsuits in the Alameda Superior Court challenging the validity of the Governor's July 28, 2010, order. (Professional Engineers in California Government v. Schwarzenegger (No. RG1049800) and consolidated cases.) On August 9, 2010, a judge of the Alameda Superior Court issued a temporary restraining order enjoining the Governor and other state officials from implementing the new executive order pending a hearing on the employee organizations' request for a preliminary injunction. The Governor immediately appealed to the Court of Appeal from the trial court's ruling issuing the temporary restraining order, and sought a writ of supersedeas to stay the trial court's order pending resolution of the appeal. After the Court of Appeal denied the stay, the Governor sought immediate review in this court. On August 18, 2010, we granted the petition for review in that matter, deferred further action pending our resolution of the current proceeding, and stayed further superior court proceedings in that matter as well as the temporary restraining order that had been issued on August 9, 2010. The current proceeding does not involve the validity of the Governor's July 28, 2010, executive order.

II.

We now describe in somewhat greater detail the proceedings below.

In each of the three Sacramento Superior Court cases, the petition filed by the employee organization sought (1) the issuance of a writ of mandate directing the Controller and the Governor not to implement the mandatory two-day-a-month unpaid furlough instituted by the Governor's December 19, 2008, executive order, and (2) a declaratory judgment stating that the executive order is invalid. The principal contention advanced in all three cases is that the Governor lacks authority to impose a mandatory unpaid furlough unilaterally -- reducing the wages of the employees represented by the plaintiff employee organizations -- and that such a measure may be adopted only by the Legislature. Each petition asked the trial court to act expeditiously, before February 1, 2009, when the furloughs were scheduled to go into effect.

The Governor and the DPA initially filed a demurrer to the petitions, arguing that the actions first should have been brought before the Public Employee Relations Board (PERB), and thereafter they filed an opposition to the petitions on the merits, relying (at that juncture) primarily on the contention that Government Code section 3516.5 provided the Governor with the authority to implement the furlough program in a fiscal emergency.*fn10

In contrast to the Governor and the DPA, the Controller, who also had been named as a defendant in each of the petitions, filed an answer concurring in plaintiffs' challenge to the Governor's executive order. Like plaintiffs, the Controller maintained that the Governor lacks authority to reduce state employees' pay unilaterally through a mandatory furlough, arguing that only the Legislature possesses such authority.

The trial court considered the matter on an expedited basis and, after conducting a single hearing, issued a ruling applicable to all three cases. In its ruling, the court first overruled the demurrer to the petitions, concluding that the superior court properly could exercise jurisdiction over the actions. Turning to the merits, the court then rejected plaintiffs' claim that the Governor and the DPA lacked authority to institute the challenged furlough plan. In reaching its conclusion on the merits, the trial court relied primarily upon its interpretation of sections 19851 (a provision concerning workweek hours) and 19849 (a provision granting the DPA general authority to issue regulations "governing hours of work and overtime compensation"), as well as its determination that the applicable memoranda of understanding (MOU's) between the employee organizations in question and the state authorized the Governor and the DPA to take such action in a fiscal emergency. As part of its ruling, the trial court explicitly ordered the Controller to comply with the Governor's furlough order.*fn11

Plaintiffs and the Controller filed timely appeals in the Court of Appeal. After the regular rounds of briefing were completed, that court issued an order consolidating the three cases for oral argument and decision, and shortly thereafter directed the parties to file supplemental briefs addressing a series of detailed questions. After the rounds of supplemental briefing were completed, but before the Court of Appeal was prepared to set the consolidated matter for oral argument or issue a decision, we transferred the matter to this court (Cal. Const., art. VI, § 12, subd. (a)), requested further supplemental briefing on two additional issues,*fn12 and held oral argument on September 8, 2010.

III.

We begin with a brief overview of the general provisions of the California Constitution and the California statutes relating to state finances and the state budget.

Under the California Constitution, the Legislature and the Governor share responsibility for the state's finances and its budgeting process. The Governor is assigned the responsibility of submitting to the Legislature each year in early January a proposed balanced budget for the upcoming fiscal year (which runs from July 1 to June 30). (See Cal. Const., art. IV, § 12, subd. (a) ["[w]ithin the first 10 days of each calendar year . . ."].) The Legislature considers the proposed budget, engages in negotiations among its members and with the Governor, and is obligated to pass a budget bill for the upcoming fiscal year "by midnight on June 15 of each year." (Cal. Const., art. IV, § 12, subd. (c)(3).) The Constitution further provides that the Legislature may not send to the Governor for consideration, and the Governor may not sign into law, a budget bill that does not provide for a balanced budget. (Cal. Const., art. IV, § 12, subd. (f).) After the Legislature acts, the Governor is authorized to reduce or eliminate one or more specific items of appropriation through exercise of the "line-item veto," and those gubernatorial reductions take effect unless the Legislature by a two-thirds vote overrides the Governor's veto regarding a specific item. (Cal. Const., art. IV, § 10, subd. (e).) The Constitution also specifies that the Controller, in approving payments from the state treasury, is authorized to make only those expenditures for which there is an available appropriation. (Cal. Const., art. XVI, § 7.)

The Constitution further provides that "[t]he Legislature may control the submission, approval, and enforcement of budgets and the filing of claims for all state agencies." (Cal. Const., art. IV, § 12, subd. (e).) The Legislature has adopted statutes authorizing the Department of Finance to exercise general supervisory authority over the state's financial and business policies, including obtaining the necessary information to monitor expenditures and revenues during the fiscal year. (§§ 13070, 13320, 13337.) In addition, section 13337.5 provides that "[t]he annual Budget Act shall not provide for projected expenditures in excess of projected revenues" and further that "it is the intention of the Legislature that in the event, after enactment of the Budget Act, revised estimates of expected revenues or expenditures, or both, show that expenditures will exceed estimated revenues, expenditures should be reduced or revenues increased, or both, to ensure that actual expenditures do not exceed actual revenues for that fiscal year."

Until 2004, however, there was no specific provision establishing a procedure for dealing with a situation in which, in the course of a fiscal year, it became apparent that the expenditures originally anticipated and authorized under the existing budget substantially would exceed the estimated revenues that the state would obtain during the fiscal year.

In the primary election held on March 2, 2004, a ballot measure was put before the voters that directly addressed the type of midyear fiscal emergency that led to the executive order challenged in the present case. That measure, appearing on the ballot as Proposition 58, proposed adding a new provision -- article IV, section 10, subdivision (f) (hereafter article IV, section 10(f)) -- to the California Constitution. The voters approved the measure at that election, adding the provision to our state Constitution.

Under article IV, section 10(f), if the Governor determines in the midst of a fiscal year that there is likely to be a substantial unanticipated budget deficit for that fiscal year, he or she may declare a fiscal emergency, call a special legislative session to deal with the emergency, and submit proposed legislation to address the problem. The provision also specifies that if the Legislature fails to enact legislation within 45 days to address the fiscal emergency, the Legislature may not act on any other bill and cannot recess until it passes such legislation.*fn13

In the present case, on December 1, 2008, the Governor invoked the provisions of article IV, section 10(f), called a special session, and submitted proposed legislation. The Legislature did not enact the Governor's proposed legislation but instead passed an alternative budget package on December 18, 2008 -- legislation that the Governor ultimately vetoed on January 6, 2009.

On December 19, 2008, citing a worsening fiscal situation and maintaining that during the fiscal emergency special session "the Legislature failed to effectively address the unprecedented statewide fiscal crisis," the Governor issued the executive order at issue in this case, directing implementation of a two-day-a-month unpaid furlough of state workers employed in the executive branch, to begin on February 1, 2009, and run through June 30, 2010. Thereafter, on February 19, 2009, the Legislature adopted, and on February 20, 2009, the Governor signed, a revised 2008 Budget Act (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 2) and an initial 2009 Budget Act (id., ch. 1), which reduced the appropriations for state employee compensation to a level proposed by the Governor -- a level that included reductions attributable to the furlough program.

In light of this chronology, we believe it is useful to analyze the issues presented in this case by posing two broad questions. First, on December 19, 2008, did the Governor possess authority to impose unilaterally a mandatory two-day-a-month unpaid furlough for state employees by issuing an executive order? Second, did the Legislature's enactment in February 2009 of the revised 2008 Budget Act and the initial 2009 Budget Act affect the validity of the Governor's executive order or the remedy that the employee organizations may be entitled to obtain in the present proceeding? We begin our analysis with the first of these two questions.

IV.

Plaintiffs contend the Governor lacked the authority to impose unilaterally, through his December 19, 2008 executive order, a mandatory unpaid furlough on state workers. Plaintiffs maintain it was well understood at the time the Governor issued this executive order that such action could be undertaken only by, or with the concurrence of, the Legislature.

A.

Plaintiffs first point to article IV, section 10(f), noting that this provision clearly contemplates that, in the event of a midyear fiscal emergency, the Governor can propose remedial measures, but that such proposals will take effect only if adopted by the Legislature and signed into law. Plaintiffs emphasize in this regard that resolution of a serious budget problem invariably implicates a myriad of fundamental policy decisions and tradeoffs, and they maintain that article IV, section 10(f) accurately recognizes that under the traditional separation-of-powers principles embodied in the California Constitution (art. III, § 3) it is for the Legislature to fashion an appropriate solution to a fiscal emergency through the passage of legislation -- legislation that is then subject to the Governor's veto authority.

It is true that article IV, section 10(f) was proposed and adopted in 2004 in response to a perceived need for a new procedure to deal with midyear fiscal emergencies, and that this provision recognizes that ordinarily the Governor will be unable to solve the problem alone and that a solution to such a fiscal emergency generally will require the Legislature's enactment of new legislation. The circumstance that article IV, section 10(f) recognizes that the Legislature ordinarily will play a key role in resolving a midyear state budget crisis, however, does not signify that the Governor lacks authority to undertake any unilateral actions to conserve funds and cut state expenditures in response to a fiscal emergency. No one argues, for example, that, in response to a midyear fiscal emergency, the Governor could not delay discretionary spending on public works projects or could not (at least with regard to those executive employees under his direct control) freeze hiring (leaving unfilled those vacant positions for which funds had been appropriated). In the present case the Governor essentially is arguing that instituting a mandatory unpaid furlough of state employees, similar to not filling vacancies, is one of the measures that he lawfully could institute unilaterally.

B.

Plaintiffs respond that there is clear and abundant evidence that, prior to the Governor's issuance of the initial furlough order on December 19, 2008, it was well understood that a mandatory furlough of state employees (encompassing a cut in employee wages) could not be imposed by the Governor unilaterally. Initially, plaintiffs point out that the Governor himself, in his November 6, 2008, letter to state employees, explicitly recognized the need for legislative concurrence when he first announced his intention to propose a one-day-a-month unpaid furlough of state employees to deal with the state's fiscal crisis. Moreover, plaintiffs also note that in the comprehensive budget legislation submitted by the Governor to the Legislature on November 6, 2008, he proposed that it adopt new statutory provisions that would direct the Department of Finance and the DPA to implement such a furlough. Further, plaintiffs observe that when, on December 1, 2008, the Governor formally declared a fiscal emergency pursuant to article IV, section 10(f) and called a special session of the Legislature to address that emergency, he again submitted a comprehensive budget proposal that included the same statutory provisions by which the Legislature would mandate the implementation of the furlough program. Plaintiffs maintain that all of these actions constituted an unambiguous acknowledgement on the part of the Governor that legislative action was required before a furlough could be imposed. Finally, plaintiffs point out that the present Governor is not the first California governor to recognize that, under existing California law, the Governor lacks the authority unilaterally to reduce state employee earnings even in a fiscal emergency. Plaintiffs note that in the early 1990's, in response to a similar state fiscal emergency, Governor Wilson had proposed a ballot measure that would have afforded the Governor of California at least some unilateral authority to act in this area -- a measure that failed to win the support of a majority of the voters at the November 1992 election.*fn14

Of course, neither the position taken by the Governor in his November 6, 2008, letter to state employees, nor his proposal that the Legislature adopt provisions directing the implementation of a furlough, constitutes a legally controlling determination that the Governor lacks authority to impose such a furlough unilaterally. In defending his December 19, 2008, executive order in the present litigation, the Governor, noting the absence of any definitive judicial ruling, ...


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