Estate of Cirone
| Citation | 189 Cal.App.3d 1280,234 Cal.Rptr. 749 |
| Court | California Court of Appeals |
| Decision Date | 27 February 1987 |
| Parties | ESTATE OF Jessie CIRONE, Deceased. Bennie J. CIRONE, et al., as Executors, etc., Petitioners and Respondents, v. Kenneth CORY, as State Controller, Objector and Appellant. H001577. |
D. Robert Shuman, Peter A. Baldridge, Sacramento, for objector and appellant.
Bertram M. Berns, San Jose, Howard C. Anawalt, Monte Sereno, for petitioners and respondents.
The pivotal issue in this case is whether a restriction in the 1985 Budget Act line-item appropriation for payment of attorney fee awards made pursuant to Code of Civil Procedure section 1021.5, 1 which limits expenditures to a maximum hourly rate of recovery, violates California Constitution's separation of powers doctrine (Cal.Const., Art. 3, § 3). We conclude it does not and reverse.
(Estate of Cirone (1984) 153 Cal.App.3d 199, 201, 200 Cal.Rptr. 511.) In a 1984 decision, an appellate court held that "... an initiative measure repealing the state inheritance tax, stating it is 'operative as of the date of passage' and 'shall apply to the estates of those persons dying on or after such date,' precludes the imposition of inheritance taxes against the estate of persons dying on the date of the election at which the initiative measure was enacted by the electorate." (Ibid.)
Upon remand, the executors of the Estate of Jessie Cirone petitioned the superior court for an award of attorney's fees pursuant to section 1021.5, a codification of the judicial private attorney general fee doctrine (Serrano v. Unruh (1982) 32 Cal.3d 621, 624, fn. 1, 186 Cal.Rptr. 754, 652 P.2d 985). 2 The executors claimed to have incurred $11,956 for attorney services and costs, which sum was based upon an hourly charge of approximately $150. 3 They requested the court to award fees calculated by applying a multiplier of at least 2.5. 4 By order dated August 21, 1984, the superior court awarded, and directed the State and State Controller to pay, $18,000 in attorney's fees directly to Bertram M. Berns, the attorney for the Estate's executors. The court's memorandum of decision, dated August 15, 1984, explained that it arrived at the figure by "... taking the initial calculation of the attorney services in terms of the time expended on the case and arriving at a 'lodestar' amount of $12,000" and then using "... a multiplication factor of 1.5 on that 'lodestar' amount to arrive at the attorney fee award of $18,000." The State Controller unsuccessfully brought a new trial motion (§§ 655 et seq.) to vacate the fee award, but no appeal was taken.
Apparently, the State Controller then informed Berns by letter that the Budget Act appropriation at that time limited expenditures for payment of attorney fee awards under section 1021.5 to a maximum hourly rate of recovery equivalent to the hourly rate charged by the State Attorney General's Office. (See Stats.1984, ch. 258, § 2.00, item 9810-001-001, p. 642.) The Controller represented that rate to be $62.75. He stated: "On the basis of the declaration submitted in the Cirone matter, it appears that there were 78 hours of work involved, for a total fee of $4,894.50."
Having been so advised, respondents initially sought to collect the attorney fee award by presenting a claim for $18,000 to the State Board of Control. The Board accepted the claim in full and requested monies to pay the award be appropriated from line-item 9810-001-001 of the current budget act by special omnibus bill. However, that collection effort failed when a legislative subcommittee deleted the proposed appropriation from the bill evidently because members felt the claim was adequately addressed by the budget act.
On September 23, 1985, respondents noticed a motion for an order compelling State Controller Kenneth Cory to pay the full amount of the attorney fee award from existing appropriations and awarding an additional sum for attorney's fees expended to enforce the attorney fee award. 5 The motion was argued and submitted on October 28, 1985.
By formal order dated December 3, 1985, the court ordered State Controller Kenneth Cory and the State of California to pay Berns "... the sum of eighteen thousand dollars ($18,000), together with interest from August 22, 1984 from the funds of the Office of the State Controller" and directed that the payment be made "... either from line number 9810-001-001 of the 1985-1986 budget of the State of California or from other appropriated funds." The court also ordered State Controller Kenneth Cory and the State of California to pay Berns "... the further sum of $500.00 together with all actual costs incurred in bringing the petition" and directed that payment be made "... either from line number 9810-001-001 of the 1985-1986 budget of the State of California or from other appropriated funds." 6 State Controller Kenneth Cory appeals from that order.
The State Controller argues that compliance with the superior court's order "... would cause him to act in an unconstitutional manner since, in order to fully satisfy the award, he would be required to draw money from the State Treasury in excess of appropriations made by the State Legislature for such purpose." California Constitution Article 16, section 7, provides: "Money may be drawn from the Treasury only through an appropriation made by law and upon a Controller's duly drawn warrant." Government Code section 12440 states in pertinent part: "The Controller shall draw warrants on the Treasurer for the payment of money directed by law to be paid out of the State Treasury; but a warrant shall not be drawn unless authorized by law, and unless ... unexhausted specific appropriations provided by law are available to meet it." 7
The Controller states that he is precluded from paying the full award from the 1985 Budget Act appropriations because of express statutory limitations on expenditures for payment of attorney fee judgments made pursuant to 1021.5 and he is "... unaware of any 'other appropriated funds' that may be available for payment of the award...." He asserts that he is not challenging the validity of the principal fee award itself.
The Controller refers us first to section 5.00 of the 1985 Budget Act. Section 5.00 reads: (Stats.1985, ch. 111, § 5.00, p. 797.)
He next points to the '85 Budget Act appropriation for payment of attorney fee judgments entered against the state pursuant to section 1021.5, namely line-item 9810-001-001. The appropriation contains restrictions upon expenditures from that item, including the limitation that payment not exceed a maximum hourly rate of $90. 8
The Controller asserts that the superior court's order compelling him to pay the full $18,000 together with interest violates the separation of powers doctrine because it exceeds the legislative restriction limiting expenditures to a maximum hourly rate of recovery. Respondents counter that the legislative restriction violates separation of powers doctrine because it requires the Controller to look behind the final fee award and to determine the maximum amount to be paid based upon the specific facts of the particular case.
The separation of powers doctrine establishes that none of the coordinate branches of our tripartite government may exercise power vested in another branch. Article 3, section 3, of the California Constitution provides: 9
The Legislature is clearly the branch empowered to enact statutes, including passage of an annual budget bill. (Cal. Const., art. 4, §§ 8, 10, 12.) The judiciary is assigned the resolution of specific controversies. (Cal. Const., art. 6, § 1; Mandel v. Myers (1981) 29 Cal.3d 531, 547, 174 Cal.Rptr. 841, 629 P.2d 935.)
It has long been established that the judicial branch has no power to compel the Legislature to pass particular appropriations. (Mandel v. Myers, supra, 29 Cal.3d at pp. 539-540, 174 Cal.Rptr. 841, 629 P.2d 935; Serrano v. Priest (1976) 18 Cal.3d 728, 751, 135 Cal.Rptr. 345, 557 P.2d 929; see Mezey v. State of California (1984) 161 Cal.App.3d 1060, 1065, 208 Cal.Rptr. 40.) "[I]t is equally well established that once funds have already been appropriated by legislative action, a court transgresses no constitutional principle when it orders the State Controller or other similar official to make appropriate expenditures from such funds." (Mandel v. Myers, supra, 29 Cal.3d at p. 540, 174 Cal.Rptr. 841, 629 P.2d 935.)
In 1858, our Supreme Court affirmed a lower court which refused to issue a writ of mandate compelling the State Treasurer to pay warrants drawn by the State Controller to discharge the state's indebtedness for judges' salaries where the Legislature failed to appropriate funds for that purpose. (Myers v. English (1858) 9 Cal. 341, 346,...
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