Ixta v. Rinaldi

• Decision Date: 26 October 1987
• Docket Number: No. C002805,C002805
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 195 Cal.App.3d 886 195 Cal.App.3d 886, 13 O.S.H. Cas. (BNA) 1449, 1987 O.S.H.D. (CCH) P 28,072 Roberto IXTA et al., Petitioners, v. Ronald T. RINALDI et al., Respondents.

Page 144

241 Cal.Rptr. 144

Previously published at 195 Cal.App.3d 886

195 Cal.App.3d 886, 13 O.S.H. Cas. (BNA) 1449,

1987 O.S.H.D. (CCH) P 28,072

Roberto IXTA et al., Petitioners, v. Ronald T. RINALDI et al., Respondents.

No. C002805.

Court of Appeal, Third District, California.

Oct. 26, 1987.

Review Granted Jan. 21, 1988.

Ralph Santiago, Abascal, San Francisco, Ralph Lightstone, Sacramento, Claudia E. Smith, Delano, Anthony Mischel, San Francisco, Dennis Hayashi, Oakland, for petitioners.

Robert Barnes, Judith Kurtz, Charles P. Scully II, Donald C. Carroll, San Francisco, Ira Reiner, Dist. Atty., Jan Chatten-Brown, Sp. Asst. Dist. Atty., Los Angeles, Bion M. Gregory, Sacramento, Jack I. Horton, James L. Ashford, and Mark Franklin Terry, as amici curiae, for petitioners.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Paul H. Dobson, Lisa Lewis Dubois, Deputy Attys. Gen., for respondents.

BLEASE, Associate Justice.

The California Occupational Safety and Health Act (Cal/OSHA) was enacted in 1973 so that the state might continue to exercise its sovereign powers "to assur[e] safe and healthful working conditions for all California working men and women." (Lab.Code, § 6300.) The enactment is part of a state plan made necessary to avoid the federal preemption of state authority over private occupations by the federal Occupational Safety and Health Act of 1970 (Fed/OSHA). (see 29 U.S.C.A. § 667.) Without change in the substantive law, the Governor reduced the aggregate amount of funds appropriated to the Department of Industrial Relations (DIR) in the 1987 budget bill by $7 million for the announced purpose of terminating California's enforcement of its private sector responsibilities under Cal/OSHA and placing these responsibilities under exclusive federal jurisdiction. The action was taken under his claimed constitutional authority to reduce or veto an item of appropriation (Cal. Const., art. IV, § 10, subd. (b)). Thereafter the respondent Director of DIR (Director) terminated the enforcement of Cal/OSHA in the private sector for lack of funds.

In these original mandamus proceedings petitioners, six workers in private sector employments claim that the Governor's veto exceeded his constitutional authority; that moneys appropriated for the DIR are Accordingly, we will issue a peremptory writ of mandate commanding the Director to enforce the Cal/OSHA program from the aggregate appropriation for the DIR in the Budget Act of 1987 consistent with these conclusions.

available to enforce Cal/OSHA and that the Director is under a mandatory duty to do so. We will conclude that the petitioners' position has merit for the following reasons. The Governor by item veto "may eliminate or reduce the amount available for the purpose" set forth in the text of the item of appropriation (Harbor v. Deukmejian (1987), 43 Cal.3d 1078, 1090, 240 Cal.Rptr. 569, 742 P.2d 1290; that power is not expanded by the Governor's authority to submit a budget and budget bill (Cal. Const., art. IV, § 12, subd. (a)). The purpose appended to the text of the item of appropriation reduced by the Governor is to fund the DIR. Such money must be used by the Director to enforce all of the programs entrusted to the administration of the DIR, which includes Cal/OSHA, as required by the substantive law of the state and federal governments.

FACTS AND BACKGROUND

"California has long looked to a specialized [state] administrative agency to play an important role in protecting the health and safety of working men and women in this state." (United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd. (1982) 32 Cal.3d 762, 766, 187 Cal.Rptr. 387, 654 P.2d 157.) In 1913 California established the Industrial Accident Commission to carry out these functions. The authority was transferred in 1945 to the Industrial Safety Board. The mandate of the agency from early on has been to see that "[e]very employer shall furnish employment which shall be safe for the employees therein...." (Stats.1917, ch. 586, § 34, p. 862; Stats.1937, ch. 90, § 6400, p. 308.) Since the adoption of Cal/OSHA in 1973, Labor Code section 6400 has provided that "[e]very employer shall furnish employment and a place of employment which are safe for the employees therein." (Stats.1973, ch. 993, § 96, urgency eff. Oct. 1, 1973.)

In 1970 Congress enacted Public Law No. 91-596, Fed/OSHA. It authorizes the Secretary of Labor to promulgate standards requiring conditions or the use of practices reasonably necessary to provide safe and healthful employments in places of employment. (See 29 U.S.C.A. §§ 652, 655.) The Secretary of Labor is granted authority to enter any place where work is performed by employees and to inspect for compliance with such standards. (See 29 U.S.C.A. § 657.) Fed/OSHA preempts state law over such matters but provides that if a state submits an acceptable plan for the development and enforcement of occupational safety and health standards federal preemption is removed. (29 U.S.C.A. § 667.) "Under [this] scheme, California is preempted from regulating matters covered by Fed/OSHA standards unless the state has adopted a federally approved plan. [If such a plan is approved] it merely removes federal preemption so that the state may exercise its own sovereign powers over occupational safety and health." (United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd., supra, 32 Cal.3d at p. 772, 187 Cal.Rptr. 387, 654 P.2d 157.)

In 1973 (then) Governor Reagan asked the Legislature to enact legislation so that the state might continue to exercise its sovereign powers over occupational safety and health free of federal preemption. (See Governor's Budget for 1972-73, p. 63; Governor's Budget 1973-74, p. 74; Governor's Budget for 1974-75, pp. 66-67.) In response to that initiative, and as part of a comprehensive revision of California's occupational health and safety statutes, the Legislature acted to reconstitute the Industrial Safety Board as the Occupational Safety and Health Standards Board and to create the division of Occupational Safety and Health as the administering entity. (Stats.1973, ch. 993, urgency, eff. Oct. 1, 1973; See United Airlines, Inc., supra, 32 Cal.3d at p. 766, 187 Cal.Rptr. 387, 654 P.2d 157.) This revision implemented a California state plan for the retention of most of The state budget bill has traditionally contained items of appropriation showing the aggregate amounts appropriated either to state agencies or for specific programs and also schedules which place ceilings upon the use of the aggregate sum for personnel services and operating expenses. A schedule is not an appropriation but a limitation upon the use to which an appropriation may be put. "Each such schedule is a restriction or limitation upon the expenditure of the respective appopriation ... [and] does not itself appropriate any money, and is not itself an item of appropriation." (Stats. 1987, ch. 135, § 3.00, p. 554.) The budget bill has also contained directions which, together with provisions in the codes, provide a complicated structure for the implementation and adjustment of the appropriations made in the budget statute to changing fiscal realities of state government. We will later discuss the legal significance of these provisions.

                California's authority over occupational health and safety. 1  The plan was approved by the U.S. Department of Labor on April 24, 1973.  (See Governor's Budget for 1972-73, p. 63;  Governor's Budget 1973-74, p. 74;  Governor's Budget for 1974-75, pp. 66-67.)
                

To provide for the enforcement of the federally-approved state plan under Fed/OSHA, the budget bill for 1973 appropriated funds to the DIR for the enforcement of Cal/OSHA. It provided in pertinent part, under item number 154:

                "For support of Department of           26,164,525
                Industrial Relations Schedule
                (a)                  Personal services  22,611,411
                (b)   Operating expenses and equipment   4,714,974
                (c)                     Reimbursements    -324,100
                (d)                     Federal grants    -837,760"
                (Stats. 1973, ch. 129, p. 236.)
                

Budget bills for subsequent fiscal years provided appropriations for DIR in this format (albeit with additional provisions directing specific limitations or conditions for expenditures within the aggregate appropriation) through 1980. (See e.g. Stats.1974, ch. 375, p. 795; Stats.1980, ch. 510, p. 1226.) In 1981 the item for support of DIR was split into state and federal fund components. The schedules included in the state funds items were organized by program, e.g., resolving worker's compensation disputes, $28,796,556, preventing industrial injuries and deaths, $18,937,558. (Stats.1981, ch. 99, pp. 546-547.) This format was continued through 1986. (See e.g. Stats. 1986, ch. 186, pp. 570-572.)

In 1986 the aggregate amount appropriated for DIR in the budget bill was $106,153,000. The Governor reduced this amount to $103,935,000. The budget bill included a schedule for prevention of industrial injuries in the amount of $43,527,000. The Governor reduced this to $42,732,000. An additional schedule showed the receipt of federal funds for support of DIR from the Federal Trust Fund in the amount of $17,864,000. (Stats.1986, ch. 186, pp. 82-83, 570-572.)

The Governor proposed in the budget that he submitted for the fiscal year 1987-1988 that no funds be provided for Cal/OSHA activities in the private sector. A note appended to the summary of program requirements for DIR, entitled "Major Budget Adjustments", says: "A reduction of a total of $22.2 million ($8 million General Fund and $14.2 Federal Funds) and 366.4 personnel years from Cal/OSHA enforcement, regulatory activity, and appeals The budget bill was amended by the Legislature. Initially the amount under schedule (d) of item 8350-001-001 was increased to $42,030,000 and the federal trust fund item to $17,674,000. (Sen. Amend. to Sen. Bill No. 152 (1987-1988 Reg. Sess.) ...