Walsh v. Board of Administration

• Decision Date: 13 March 1992
• Docket Number: No. C008704,C008704
• Citation: 4 Cal.App.4th 682,6 Cal.Rptr.2d 118
• Court: California Court of Appeals Court of Appeals
• Parties: Lawrence E. WALSH, Plaintiff and Appellant, v. BOARD OF ADMINISTRATION OF the PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent.

Page 118

6 Cal.Rptr.2d 118

4 Cal.App.4th 682

Lawrence E. WALSH, Plaintiff and Appellant, v. BOARD OF ADMINISTRATION OF the PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent.

No. C008704.

Court of Appeal, Third District, California.

March 13, 1992.

Rehearing Denied April 6, 1992.

Review Denied June 11, 1992.

[4 Cal.App.4th 688] Barbara Lang Betts, San Diego, for plaintiff and appellant.

Richard H. Koppes and Margaret J. Hoehn, Sacramento, for defendant and respondent.

SPARKS, Acting Presiding Justice.

Once again we consider claims that changes in the Legislator's Retirement Law were improper and impaired the vested rights of a former legislator. Lawrence E. Walsh, a former member of the California State Legislature, appeals from a judgment of the Superior Court of Sacramento County denying his petition for a writ of mandate. By his petition Walsh sought to compel the defendant Board of Administration of the Public Employees' Retirement System (PERS Board) to award him retirement benefits from the time he left legislative service in 1974 to the time he began drawing retirement benefits at age 60 in 1986, and to recalculate his current allowance based upon the cost of living increases that would have accrued during those years. Walsh's contentions are presented in a somewhat disjointed fashion. Nevertheless, we have carefully considered each of the arguments which we perceive him to be asserting in support of his claim and find none of them persuasive. Accordingly, we shall affirm the judgment of the trial court.

BACKGROUND

The decade colloquially known as the 60's was an extremely significant, and turbulent, period for our state Legislature. In order to address the issues presented in this appeal and to gain perspective we must first briefly relate the historical background in which this dispute arose. From our point of view, the relevant historical perspective includes three subjects: (1) legislative reapportionment; (2) the change from a part-time to a full-time Legislature with compensatory adjustments; and (3) legislative retirement. We consider these in that order.

1. Reapportionment. We may begin our discussion of legislative reapportionment with the 1926 initiative amendment of article IV, section 6, of the state Constitution (further references to articles are to the articles of the California Constitution). At that time our Constitution provided that the state should be divided into 40 Senate districts and 80 Assembly districts. The Senate was to be apportioned on a geographical basis and the Assembly on a modified population basis. The Constitution provided that Assembly districts In the 1926 measure it was provided that the Legislature should reapportion the state Senate and Assembly districts in its first regular session following each decennial federal census. In the event the Legislature failed to act a Reapportionment Commission, consisting of the Lieutenant Governor, Attorney General, State Controller, Secretary of State, and State Superintendent of Public Instruction, was charged with the duty to make a reapportionment, subject to the right of referendum. (Former art. IV, § 6.)

should be "as nearly equal in population as may be" but also contained geographical limitations upon apportionment of such districts. With respect to Senate districts, the Constitution contained only geographical limitations.

The reapportionment scheme created by the 1926 measure was followed in 1928 and thence after each decennial federal census through 1961. (See Yorty v. Anderson (1963) 60 Cal.2d 312, 314, 33 Cal.Rptr. 97, 384 P.2d 417.) The geographical basis for Senate apportionment and, to a lesser but nonetheless significant extent, the modified population basis for Assembly apportionment, gave rise to large discrepancies in the population bases for the various legislative districts in the state. (See Silver v. Brown (1965) 63 Cal.2d 270, 275-276, 46 Cal.Rptr. 308, 405 P.2d 132.) For example, after the 1961 reapportionment the population bases of Assembly districts ranged from 72,105 to 306,191, and the population discrepancies in Senate districts were even more disparate. (Ibid.) Before 1962 this was not regarded as an impermissible result. In that year, however, the United States Supreme Court rendered its decision in Baker v. Carr (1962) 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. For our purposes it is sufficient to note that in the decision in Baker the Supreme Court held that the apportionment of a state legislature was subject to judicial challenge on equal protection grounds.

The decision in Baker generated several challenges to our reapportionment scheme. In Yorty v. Anderson, supra, 60 Cal.2d 312, 33 Cal.Rptr. 97, 384 P.2d 417, the petitioners sought a writ of mandate to compel the Reapportionment Commission to reapportion state Senate districts upon the ground that the 1961 reapportionment by the Legislature was unconstitutional. The Supreme Court denied extraordinary relief, holding that since the Legislature had not failed to act with respect to the decennial reapportionment required in article IV, section 6, of the Constitution, the jurisdiction of the Reapportionment Commission did not arise. (Id. at p. 315, 33 Cal.Rptr. 97, 384 P.2d 417.) The court noted that the reapportionment enacted by theLegislature was subject to judicial attack and that in fact a federal action was then pending for that purpose. (Id. at p. 318, 33 Cal.Rptr. 97, 384 P.2d 417.)

The federal action referred to in Yorty resulted in a determination that the 1961 Senate reapportionment was unconstitutional. (Silver v. Jordan (1965) 241 F.Supp. 576.) The United States District Court deferred further action until after July 1, 1965, so that our Legislature would have an opportunity to reapportion the Senate consistent with equal protection principles. (Ibid.) The decision of the district court was affirmed by the United States Supreme Court. (Jordan v. Silver (1965) 381 U.S. 415, 85 S.Ct. 1572, 14 L.Ed.2d 689.)

In 1965 the state Legislature failed to enact a reapportionment of the Senate within the deadline set by the federal district court. Since the United States Supreme Court had indicated a preference that appropriate state agencies, including state courts, be given an opportunity to adopt valid reapportionment plans before intervention by federal courts, the California Supreme Court took jurisdiction over the matter in Silver v. Brown, supra, 63 Cal.2d 270, see page 275, 46 Cal.Rptr. 308, 405 P.2d 132. The court held that the 1961 reapportionment of both the Senate and the Assembly failed to meet constitutional requirements. (Id. at pp. 276-277, 46 Cal.Rptr. 308, 405 P.2d 132.) The court presented a contingent reapportionment plan to be used in the 1966 legislative elections in the event the Legislature failed to act. (Id. at p. 281, 46 Cal.Rptr. 308, 405 In response to the decision in Silver v. Brown, supra, 63 Cal.2d at p. 270, 46 Cal.Rptr. 308, 405 P.2d 132 the Governor called the Legislature into extraordinary session and the Legislature enacted a reapportionment plan. While the Legislature was still in session certain technical errors were discovered and the Legislature passed a corrective bill. However, in the corrective bill the Legislature attempted to provide additional pension benefits to legislators affected by reapportionment. In view of the pension provisions, the Governor refused to sign the corrective bill and it did not take effect. In Silver v. Brown (1966), 63 Cal.2d 841, 48 Cal.Rptr. 609, 409 P.2d 689, the Supreme Court corrected the technical errors and ambiguities in the reapportionment plan as a matter of construction, and as corrected upheld the plan. (Id. at p. 846, 48 Cal.Rptr. 609, 409 P.2d 689.)

                P.2d 132.)   However, the court noted that there was time for the Governor to call the Legislature into special session to enact a reapportionment plan for the 1966 elections, and the court held that in the event a valid plan was adopted by the Legislature then that plan would prevail.  (Id. at pp. 277-278, 281, 46 Cal.Rptr. 308, 405 P.2d 132.)
                

As can be seen from this history, the 1966 legislative elections represented a major change in the way in which the members of our Legislature were chosen. For the first time the members of our Legislature were elected from districts which were approximately equal in population size. As reflected in the first Silver v. Brown decision, 63 Cal.2d at page 276, 46 Cal.Rptr. 308, 405 P.2d 132, with respect to at least some members of the Legislature this had the effect of drastically altering the districts from which they had previously been elected.

2. The Change to A Full-Time Legislature. Prior to 1966 our Constitution provided for what has been called a part-time or citizen Legislature. Former article IV, section 2, subdivision (a), provided for annual legislative sessions. Sessions in odd-numbered years were considered general sessions and were not permitted to exceed 120 days in duration. Sessions in even-numbered years were considered budget sessions and during such sessions the Legislature was permitted to consider only the Budget Bill, revenue acts necessary therefor, the approval or rejection of charters and charter amendments of local governments, and acts necessary to provide for the expenses of the session. Under subdivision (c), budget sessions were not permitted to exceed 30 days in duration, although during that time the Legislature was permitted to recess for 30 days to permit committee consideration of the Budget Bill. Subdivision (b) provided for legislative salaries of $500 per month during the term for which the member was elected.

In 1966, a constitutional revision was submitted to the voters for the purpose of converting the Legislature into what may be termed a full-time body. The ultimate proposal was the result of lengthy consideration by the Constitutional Revision Commission and the Legislature. The goal of...