California State Employees' Assn. v. Flournoy

Decision Date09 May 1973
Citation108 Cal.Rptr. 251,32 Cal.App.3d 219
CourtCalifornia Court of Appeals Court of Appeals
PartiesCALIFORNIA STATE EMPLOYEES ASSOCIATION et al., Petitioners and Appellants, v. Houston I. FLOURNOY et al., Defendants and Respondents. Civ. 40554.

Mohi, Morales, Dumas & Glasman, Los Angeles, Walter W. Taylor, Sacramento, and Frank C. Morales, Los Angeles, for appellants.

Thomas J. Cunningham and John E. Landon, Berkeley, for respondent The Regents of the University of Cal.

Evelle J. Younger, Atty. Gen., and Anthony S. Da Vigo, Deputy Atty. Gen., for respondents Houston I. Flournoy, Controller, and the Trustees of the Cal. State Colleges.

RICHARD SCHAUER *, Associate Justice.

Petitioners brought the subject class suit for a writ of mandate and declaratory relief on behalf of the faculties and academic employees of the University of California and California State Colleges. The basis of the suit alleged in petitioners' 'First Amended Petition for Writ of Mandamus' is that the aforementioned academic personnel did not receive salary increases for the fiscal year, 1970--1971. General demurrers 1 of respondents Houston I Flournoy in his capacity as Controller of the State of California, the Trustees of the California State Colleges and The Regents of the University of California were sustained without leave to amend as to each of the six causes of action contained in the first amended petition. Petitioners appeal from such order sustaining the demurrers and from the order of dismissal entered thereon under Code of Civil Procedure section 581, subdivision 3.

Although the instant order of dismissal is an appealable 'judgment' pursuant to Code of Civil Procedure section 581d, the order sustaining the general demurrers is not appealable and the purported appeal therefrom must be dismissed. (Code Civ.Proc., § 904.1; Beazell v. Schrader, 205 Cal.App.2d 673, 674, 23 Cal.Rptr. 189.)

Petitioners contend that each of their six causes of action alleges facts sufficient to constitute a cause of action, and in support thereof propound basically a four-fold argument as follows: (1) the first two causes of action allege facts demonstrating that the legislative act in question which excluded the salary increases was an unconstitutional bill of attainder; (2) the third cause of action alleges facts establishing an implied contract imposing an obligation to pay salary increases on the Regents of the University of California; (3) the fourth and fifth causes of action state facts showing an unlawful failure by the California State Legislature to appropriate funds in view of the salary-establishing authority of the educational institutions concerned; and (4) the sixth cause of action alleges facts which point to an unequal application to the class of the subject legislative act in violation of the Fourteenth Amendment to the United States Constitution.

The Allegations as to a Bill of Attainder

The first two causes of action involve, respectively, the faculty and faculty-related positions of the University of California, and the instructional and instructional-related employees of the California State Colleges. The first cause of action alleges that the Regents of the University of California, hereinafter referred to as 'Regents,' have 'the salary-establishing jurisdiction' with regard to the university's academic employees; and the second cause of action alleges similar 'salary-fixing jurisdiction' in the Trustees of the California State Colleges, hereinafter referred to as 'Trustees,' with regard to the academic employees of the state colleges. In both causes of action petitioners allege that after salary increases, of 7.2% And 7% Respectively for the classes, were 'established' in accordance with traditional practices by the respective salary-fixing authority involved, such authority '. . . made a request of the Governor and of the State Legislature for an appropriation of funds to meet the salary increases . . .' and '(t)he Governor's proposed budget for the 1970--71 fiscal year contained a provision to provide an increase of . . . 5% Across-the-board, thereby agreeing to provide part of the funds requested . . . for salary increases.' It is further alleged that committees of the state legislature deleted the salary increases from the proposed budget and that '(t)he Budget Act of 1970, therefore, did not provide funds for salary increases of . . . (academic personnel) but instead expressly excluded them from the Salary-Increase Appropriations in Item 247 of the Budget Act of 1970. . . .' although such item 247 appropriated funds '. . . for a 5% Across-the-board salary increase for (with insignificant exception) every person in the State's employ, that is, approximately 150,000 employees, or all of the state civil service employees, the exempt employees and the support or non-academic employees of the University and the State Colleges.'

Petitioners then allege that '(t)he Legislature refused to appropriate said monies for increases in salaries of the academic employees . . .because of the existence of the political and social conditions in the . . . campuses and the disturbances and unrest engendered thereby, which resulted, at times, in force, violence, and unlawful practices by the students, and which the State Legislature arbitrarily and without any factual basis attributes to the action or inaction of the academic employees (and) (t)he sole reason for the Legislature's denial of the funds . . . was to punish the academic employees for the existence of the political and social conditions on state campuses which it wrongfully attributes to petitioners.'

Other allegations in the first and second causes of action are to the effect that the legislative refusal to make appropriations for the salary increases 'was not based upon any objective evidence'; that on June 30, 1970, the State of California had sufficient surplus funds to meet the salary increases; and had the appropriations been made, the salary-establishing authority '. . . would have adjusted the academic salaries in accordance with their establishment.'

The sole issue presented by the first and second causes of action is one of first impression in California: Does the legislative failure to appropriate funds for salary increases of public employees constitute 'punishment' within the meaning of the anti-attainder provisions of the federal and state constitutions?

The United States Constitution provides that 'No Bill of Attainder . . . shall be passed' (U.S.Const., art. I, § 9) and that 'No State shall . . . pass any Bill of Attainder' (U.S.Const., art. I, § 10). The Constitution of the State of California likewise states that 'No bill of attainder . . . shall ever be passed.' (Cal.Const., art. I, § 16).

Historically, a bill of attainder was a legislative act which, without a judicial trial, decreed punishment of death with consequences of forfeiture of property and 'corruption' or 'attaint' of the bloodline of the supposed wrongdoer; if the act imposed a lesser punishment than death, there was no 'attaint' and the bill was one of 'pains and penalties.' (See United States v. Lovett, 328 U.S. 303, 317, 66 S.Ct. 1073, 90 L.Ed. 1252 fn. 6; Coke, Commentary Upon Littleton (1st Am. ed. 1853), §§ 8.a, 134.b, note (1), 390.b, 391.a; 2 Blackstone, Commentaries (Cooley 4th ed. 1899), p. 1419.) It has been consistently held that '(w)ithin the meaning of the Constitution, bills of attainder include bills of pains and penalties.' (Cummings v. The State of Missouri, 71 U.S. 277, 323, 18 L.Ed. 356; see also United States v. Lovett, Supra, 328 U.S. 303, 315, 66 S.Ct. 1073; Ex parte Garland, 71 U.S. 333, 377, 18 L.Ed. 366.) In modern application the definition is that '(a) bill of attainder is "a legislative act which inflicts punishment without a judicial trial." (Citations.)' (Department of Social Welfare v. Gardiner, 94 Cal.App.2d 431, 433, 210 P.2d 855, 856.) Such '. . . legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.' (United States v. Lovett, Supra, 328 U.S. at pp. 315--316, 66 S.Ct. at 1079.)

In asserting that item 247 2 of the California Budget Act of 1970 was an unconstitutional bill of attainder, petitioner exclusively rely on United States v. Lovett, Supra, 328 U.S. 303, 66 S.Ct. 1073, for the proposition that a legislative failure to appropriate funds for the salary or salaries of a named or identifiable public officer, employee or class of personnel constitutes punishment within the meaning of the constitutional anti-attainder provisions. But Lovett did not so hold. The Congressional statute declared unconstitutional by the United States Supreme Court in Lovett contemplated the existence of salary appropriations and expressly forbade their use as compensation for the personal services of certain named Government employees who were supposed 'subversives.' It purported permanently to bar such persons from any further federal employment, other than as jurors or military personnel, absent new presidential appointments of such persons confirmed by the United States Senate. This aspect of Lovett, which affirmed the Court of Claims, was expressly recognized in a concurring opinion of the trial court in Lovett v. United States, 66 F.Supp. 142 at p. 149, 104 Ct.Cl. 557 at p. 588, as follows: 'If Section 304 (of the Urgent Deficiency Appropriation Act of 1943) were a mere denial of appropriation, however unjust it might be, it could not be successfully questioned. But it does not stop with a mere denial of appropriation. It goes far beyond this. It forbids on a permanent basis employment in the future. It thus becomes a permanent legislative ban.'

The United States Supreme Court emphasized this same feature: 'Nor...

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