60 Cal.App.4th 1205, C020336, Schabarum v. California Legislature

Docket NºC020336
Citation60 Cal.App.4th 1205, 70 Cal.Rptr.2d 745
Opinion Judge[11] The opinion of the court was delivered by: Sparks
Party NameSchabarum v. California Legislature
Attorney[7] Anthony T. Caso, Deborah J. La Fetra, Victor J. Wolski and Gregory W. McCracken for Plaintiff, Cross-Defendant, Appellant and Respondent. [8] Remcho, Johansen & Purcell, Joseph Remcho, Robin B. Johansen, Charles C. Marson, Karen A. Getman and Philip C. Monrad for Defendants, Cross-Complainant...
Case DateJanuary 14, 1998
CourtCalifornia Court of Appeals

Page 1205

60 Cal.App.4th 1205

70 Cal.Rptr.2d 745

PETER F. SCHABARUM, Plaintiff, Cross-defendant and Appellant,

v.

CALIFORNIA LEGISLATURE et al., Defendants, Cross-complainants and Appellants;

LEGISLATIVE COUNSEL BUREAU, Defendant and Respondent.

C020336

California Court of Appeal, Third District

January 14, 1998

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COUNSEL

Anthony T. Caso, Deborah J. La Fetra, Victor J. Wolski and Gregory W. McCracken for Plaintiff, Cross-defendant and Appellant.

Remcho, Johansen & Purcell, Joseph Remcho, Robin B. Johansen, Charles C. Marson, Karen A. Getman and Philip C. Monrad for Defendants, Cross-complainants and Appellants.

Bion M. Gregory, Gordon Cologne, Howard, Rice, Nemerovski, Canady, Falk & Rabkin and Steven L. Mayer for Defendant and Respondent.

OPINION

SPARKS, J. [*]—

In this case we consider whether the funds budgeted for the Legislative Counsel Bureau must be included in the budget of the Legislature for purposes of constitutional spending limitations. We hold that those funds need not be included in the Legislature's budget.

At issue here is article IV, section 7.5, of the California Constitution, enacted as part of Proposition 140 (the term limit initiative) at the November 6, 1990, General Election. In relevant part that section provides: "In the fiscal year immediately following the adoption of this Act, the total aggregate expenditures of the Legislature for the compensation of members and employees of, and the operating expenses and equipment for, the Legislature may not exceed an amount equal to nine hundred fifty thousand dollars ($950,000) per member for that fiscal year or 80 percent of the amount of money expended for those purposes in the preceding fiscal year, whichever is less." In subsequent years, the total aggregate expenditures of the Legislature may not exceed that of the preceding fiscal year, adjusted and compounded "by an amount equal to the percentage increase in the appropriations limit for the State established pursuant to Article XIII B." (Cal. Const., art. IV, § 7.5.)

Page 1212

Plaintiff Peter F. Schabarum brought this action as a taxpayer, alleging that the Legislature has failed, and will continue failing, to comply with this provision. Leaving aside the hyperbole, plaintiff's claim is that in the state budget act, the budget for the Legislative Counsel Bureau (Legislative Counsel), including sums budgeted for the "Legislative Data Center" (Center), which is housed within and included in the budget of the Legislative Counsel, must be included in the Legislature's spending cap. 1

The Legislature filed a cross-complaint for declaratory relief. 2 Again bereft of hyperbole, it asserts: (1) in view of positions taken and factual assumptions accepted in prior litigation (Legislature v. Eu (1991) 54 Cal.3d 492 [286 Cal.Rptr. 283]), the plaintiff and his privies are estopped from contending that the Legislative Counsel must be included in the Legislature's spending cap; (2) since the decision in Legislature v. Eu was rendered, the spending cap has proven so onerous in practice that Proposition 140 must be determined to be an invalid constitutional revision rather than a valid amendment; and (3) the position of the Legislature as a coequal branch of government has been so compromised that the federal Constitution's guarantee of a republican form of government is violated by Proposition 140.

During discovery, and while various discovery disputes were unresolved, the defendants moved for judgment on the pleadings. The trial court granted

Page 1213

judgment against plaintiff on the ground that the case presented a nonjusticiable political issue. The cross-complaint was dismissed as moot. Plaintiff appeals and the Legislature has filed a protective cross-appeal. 3

I. Political Question

The "political question" rule has two general applications or effects, one that is broad and commonly applied but rarely articulated as such, and one that is narrow but rarely applicable. Essentially the "political question" rule relates to the appropriate role of the judiciary in a tripartite system of government. Courts perform the judicial function, that is, they resolve cases and controversies before them and, in the process, interpret and apply the laws. (Massachusetts v. Mellon (1923) 262 U.S. 447, 488 [43 S.Ct. 597, 601, 67 L.Ed. 1078, 1085].) In doing so the courts may not usurp the governmental functions of the legislative and executive branches, and usurpation includes unwarranted intrusion into the roles of those branches. Thus it has been said: "The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the [legislative and executive branches]." (Japan Whaling Assn. v. American Cetacean Soc. (1986) 478 U.S. 221, 230 [106 S.Ct. 2860, 2866, 92 L.Ed.2d 166, 178].)

Nevertheless, it is well established that it is a judicial function to interpret the law, including the Constitution, and, when appropriately presented in a case or controversy, to declare when an act of the Legislature or the executive is beyond the constitutional authority vested in those branches. (INS v. Chadha (1983) 462 U.S. 919, 941-942 [103 S.Ct. 2764, 2779-2780, 77 L.Ed.2d 317, 338-339]; California Radioactive Materials Management Forum v. Department of Health Services, supra, 15 Cal.App.4th at p. 869.)

In its broad sense the political question concept is an almost constant restraint on the manner in which the courts perform the judicial function. It is the policy behind such frequently identified and applied judicial standards as: the primacy of legislative intent in statutory interpretation (see Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 732-733 [114 Cal.Rptr. 460]; California Sch. Employees Assn. v. Jefferson Elementary Sch. Dist. (1975) 45 Cal.App.3d 683, 691 [119 Cal.Rptr. 668]); the presumption

Page 1214

of constitutionality that is accorded legislation (see Horeczko v. State Bd. of Registration (1991) 232 Cal.App.3d 1352, 1358 [284 Cal.Rptr. 149]); the refusal to judge the wisdom of legislation (see Ferguson v. Skrupa (1963) 372 U.S. 726, 730 [83 S.Ct. 1028, 1031, 10 L.Ed.2d 93, 97, 95 A.L.R.2d 1347]; California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513, 1529 [7 Cal.Rptr.2d 699]; Doyle v. Board of Barber Examiners (1963) 219 Cal.App.2d 504, 515 [33 Cal.Rptr. 349]) or the motives of the legislators (see Daniel v. Family Ins. Co. (1949) 336 U.S. 220, 224 [69 S.Ct. 550, 552-553, 93 L.Ed. 632, 636, 10 A.L.R.2d 945]; California Teachers Assn. v. Hayes, supra, 5 Cal.App.4th at p. 1529); and the refusal to employ judicial remedies to compel the exercise of discretion in a particular manner (see State of South Dakota v. Brown (1978) 20 Cal.3d 765, 780 [144 Cal.Rptr. 758]; Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 315 [144 P.2d 4]). Although seldom specifically attributed to the political question issue, these and other rules for judicial decisionmaking have the same basis as the political question rule in its narrow sense, that is, the deference the courts must give other branches of government operating within their spheres of authority.

In its narrow sense the political question rule relates to the dismissal of lawsuits without reaching the merits of the dispute. The rule compels dismissal of a lawsuit when complete deference to the role of the legislative or executive branch is required and there is nothing upon which a court can adjudicate without impermissibly intruding upon the authority of another branch of government. This is usually expressed with such phrases as " 'a textually demonstrable constitutional commitment of the issue to a coordinate political department' " and " 'the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government ....' " (California Radioactive Materials Management Forum v. Department of Health Services, supra, 15 Cal.App.4th at p. 869; see generally, Tribe, American Constitutional Law (2d ed. 1988) Federal Judicial Power, §§ 3-13, pp. 96-107.) But it is actually just an extreme application of the rules of constitutional adjudication that the courts apply on a regular basis.

In this case plaintiff contends that an aspect of the state budget act, adopted by the Legislature and signed by the Governor, violates a constitutional limitation on legislative spending. The enactment of a budget bill is a legislative function; it is both a right and a duty that is expressly placed upon the Legislature and the Governor by our state Constitution. (Cal. Const., art. IV, § 12.) This fact calls into play the political question rule in its broad sense because it requires that we resolve the merits of the constitutional challenge to the budgetary legislation. This in turn requires that we apply the

Page 1215

usual rules of judicial review that accord appropriate deference to the legislative and executive exercise of political prerogatives. However, deference does not mean complete forbearance. "[A] challenge to the constitutionality of an act is inherently a judicial rather than political question and neither the Legislature, the executive, nor both acting in concert can validate an unconstitutional act or deprive the courts of jurisdiction to decide questions of constitutionality." (California Radioactive Materials Management Forum v. Department of Health Services, supra, 15 Cal.App.4th at p. 869.) Because this lawsuit seeks an adjudication of the constitutionality of the state budget act, a judicial function which does not usurp the functions of the two other coordinate...

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