Brown v. Superior Court of Sacramento County

Decision Date01 November 1982
Docket NumberS,S.F. 24403
Citation187 Cal.Rptr. 21,653 P.2d 312,32 Cal.3d 705
CourtCalifornia Supreme Court
Parties, 653 P.2d 312 Edmund G. BROWN, Jr., as Governor, etc., et al., Petitioners, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; Thomas W. MARTIN et al., Real Parties in Interest. Ralph J. GAMPELL, as Administrative Director, etc., Petitioner, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; Thomas W. MARTIN et al., Real Parties in Interest. F. 24405

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., Arne Werchick and Werchick & Werchick, San Francisco, for petitioners.

No appearance for respondent.

Leonard M. Friedman, Andrea M. Miller and Kronick, Moskovitz, Tiedemann & Girard, Sacramento, for real parties in interest.

Hufstedler, Miller, Carlson & Beardsley, Robert S. Thompson and Mary E. Healy, Los Angeles, as amici curiae on behalf of respondent and real parties in interest.

NEWMAN, Justice.

The Court of Appeal system in California was expanded significantly by a statute the Legislature passed and the Governor approved during September 1981. The statute went into effect on January 1, 1982. (Stats.1981, ch. 959.)

On February 26, 1982, via permanent injunction, Judge Fogerty--sitting by assignment on the Sacramento Superior Court--held the statute unconstitutional. He ordered that (1) the Governor refrain from appointing new judges, (2) the Controller refrain from disbursing funds for carrying out the statutory scheme, and (3) the Administrative Director of the Courts refrain from allocating appropriated moneys for that purpose.

The question now is whether we should vacate that injunction. The challenged statute (chapter 959) in its six sections:

1. Adds a fifth division of three judges to the First Appellate District in San Francisco.

2. Adds sixth and seventh divisions of three judges to the Second Appellate District. One new division is in Los Angeles; the other, in Santa Barbara.

3. Adds a third division of four judges to the Fourth Appellate District. The number of judges in the first division, at San Diego, is increased from five to six; at San Bernardino in the second division the number is decreased from five to four. The judges of the new third division are to sit in Orange County.

4. Adds two judges to the Fifth Appellate District in Fresno.

5. Creates a three-judge Sixth Appellate District in San Jose.

6. Declares that money for the Orange County division's judges and staff is to come from existing resources and the 1981 Budget Act, articulates a legislative intent that financing of that division's library and equipment "be achieved by local funding or public or private donation," and proscribes the use of other funds for the library and equipment. 1

The Legislature's power to enact the first five sections has not been challenged because article VI, section 3 of the California Constitution provides: "The Legislature shall divide the State into districts each containing a court of appeal with one or more divisions. Each division consists of a presiding justice and 2 or more associate justices ...." During the proceedings below, however, Judge Fogerty concluded that chapter 959's section 6 (see our fn. 1) was unconstitutional.

HOW THIS CASE AROSE

In December 1981 Thomas Martin and Thomas Tweedy, taxpayers (and real parties in interest here), sued and in an amended complaint filed on December 29 advanced arguments to support their request that implementation of chapter 959 be enjoined. Judge Fogerty in his order of February 26, 1982, recites: "The cause was submitted upon the pleadings, upon judicial notice imparted by documents placed in the record and upon the transcribed oral arguments of counsel. The Court has concluded (1) that there is no question of fact before the Court; (2) that Chapter 959, California Statutes of 1981, is unconstitutional and void."

In S.F. No. 24403 here the petitioners are the Governor and the Controller. In S.F. 24405 the petitioner is the Administrative Officer of the Courts. They seek mandate to compel respondent court to vacate the injunction.

THE BASIS OF THE INJUNCTION

Judge Fogerty's opinion, dated February 17, 1982, reads in part as follows: "A Court clearly cannot function without a library or equipment. Nor should the Court be in a position where it must solicit and accept donations, whether public or private. [ p] The concept of a tripartite government with its doctrine of separation of powers has been violated by this legislative enactment [chapter 959]. The independence of the judiciary is sacrosanct .... [Citation.] [p] The legislature, through its enactment, has impinged upon the efficient operation of the court, and has thereby violated Article 3, Section 3 of the California Constitution. Furthermore, a statute which requires a state court to finance its necessary operations from donations threatens the integrity of the judicial process and the reputation for impartiality which is indispensible to the judicial functions. [ p] Finally, this Court concludes that the unconstitutional funding provisions cannot be severed from the statute as a whole .... It would ... be beyond the jurisdiction of this Court to attempt to rewrite the statute to determine which of the new divisions would stand or fall. Nor can this Court merely strike the limitation thereby requiring the State to fund a program where an insufficient budget has been allocated. [ p] ... [T]his Court can review and act only on what is before it. The fact that in the future the legislature may be able to rewrite the statute to then make it constitutional is not a factor to be considered by this Court."

On June 30 this year, perhaps in response to Judge Fogerty's concerns, the Legislature included the following provision in its 1982 Budget Act (Stats.1982, ch. 326, item 0250-490, provision 2): "Notwithstanding Section 6 of Chapter 959 [see fn. 1, ante] ... $209,480 ... is expressly allocated to fund the library and equipment for Division Three of the Fourth Appellate District (the division holding sessions in Orange County)." 2 That is to say, no longer was there any intent that financing of that library and equipment "be achieved by local funding or public or private donation ...."

Thus it appears that the Fogerty injunction, challenged here, reflected the judge's concerns regarding a statutory restriction that no longer exists. Deemed temporary when enacted (see fn. 1, ante), that restriction in toto was superseded by the 1982 Budget Act. So we need not consider whether he correctly concluded that in 1981, because of its section 6, the Legislature passed "a statute which violated the California Constitution ...."

He stressed, though, that his ruling was "dispositive without regard to other significant problems raised in this litigation." Therefore we proceed to examine those problems, as they have been identified and discussed in the briefs of the parties and amici and during oral argument.

OTHER SIGNIFICANT ISSUES

Article XVI, section 7 of our state's Constitution prescribes: "Money may be drawn from the Treasury only through appropriation made by law ...." For fiscal year 1982-1983 the Legislature has appropriated $36,015,838 "[f]or support of Judiciary, Judicial Council" including specifically $20,964,632 for the Courts of Appeal. Further, the "amounts appropriated ... are intended to fully fund all of the judgeships and places of sitting created by Chapter 959 of the Statutes of 1981." (Emphasis added.) 3

Notwithstanding that brief but unambiguous legislative pronouncement, real parties contend that no such funds have legally been appropriated and that the superior court's injunction accordingly should stay in effect.

Why might the pertinent 1982-1983 appropriation be invalid? Because, say real parties, chapter 959 either was void ab initio or became void on January 1, 1982, its effective date. We discuss first the latter contention.

It is conceded in this case that real parties' complaint would have been groundless if chapter 959's effective date had been July 1, 1982. But the Legislature's choice of January 1 instead of July 1, it is argued, was fatal since on that day the Governor, the Controller, and the courts' Administrative Director were endowed with powers they could not exercise because, allegedly, the Legislature had provided no money.

Real parties cite no precedents. They maintain, though, that their view is supported by article IV, section 12 of the Constitution and, particularly, by the pronouncement in section 12, subdivision (d) that "[a] ppropriations ... are void unless passed in each house by rollcall vote ... two thirds of the membership concurring." Chapter 959 did not receive a two-thirds vote. 4

Nowhere in the words of the Constitution or in California legislative annals or in juridical opinions can we discover any overriding rule that the Legislature may not, without funding the initial fiscal year, create agencies or offices, including courts and judgeships. On the contrary, in this century the remarkable, nationwide development of budgeting-and-appropriating powers evidences a basic concern that laws which "authorize" be distinguished from those which "appropriate." Legislatures first decide whether a need for a new agency or office seems established; they then decide whether and how to prescribe the funding.

During the first half of this year none of the chapter 959 judgeships was filled, and no new court was inaugurated. As of July 1, though, funding that indisputably meets the constitutional tests of adequacy had been provided. 5 Whatever might have been a problem had the Governor, the Controller, or the courts' Administrative Director taken action during the first six months, in fact they took no action. As of now, no longer is there a problem. Pursuant to article VI, section 3 (quoted above), once again the Legislature (via chapter 959) has "divide[d] the State into districts each containing a court of appeal with one or more divisions...

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1 cases
  • Brown v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • 29 Noviembre 1982
    ...1, 1982, the Supreme Court filed its decision upholding the constitutionality of the legislation. (Brown v. Superior Court (1982) 32 Cal.3d 705, 187 Cal.Rptr. 21, 653 P.2d 312.) On November 15, Thomas Tweedy filed a substitution of attorneys in the action. On the next day, his new attorneys......

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