White v. Davis, B122178

CourtUnited States State Supreme Court (California)
Citation98 Cal.App.4th 969,121 Cal.Rptr.2d 51,37 P.3d 647
Decision Date29 May 2002
Docket NumberNo. B122178 , B123992.,B122178
PartiesSteven WHITE, Plaintiff and Appellant, v. Gray DAVIS, as Governor, etc., et al., Defendants and Respondents. Howard Jarvis Taxpayers Association et al., Plaintiffs and Respondents, v. Kathleen Connell, as Controller, etc., Defendant and Appellant; California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC et al., Interveners and Appellants. [And three other cases.].

Law Offices of Richard I. Fine & Associates, Richard I. Fine, Los Angeles, Jeremy Faith, Genalin Sulat, Carmela Tan, Cheri Vu; Jonathan M. Coupal, Sacramento, and Trevor A. Grimm, Los Angeles, for Plaintiff and Appellant Steven White in B122178, and for Plaintiffs and Respondents Howard Jarvis Taxpayers Association and Steven White in B123992.

Daniel E. Lungren and Bill Lockyer, Attorneys General, Linda A. Cabatic, Senior Assistant Attorney General, Paul H. Dobson, Keith Yamanaka and Jennifer K. Rockwell, Deputy Attorneys General, for Defendant and Appellant Kathleen Connell in B123992 and for Defendants and Respondents Gray Davis, Kathleen Connell and Matt Fong in B122178.

Anne M. Giese, Daniel S. Connolly, Sacramento, and Michael D. Hersh, Santa Fe Springs, for Interveners and Appellants Gary Gavinski and California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC.

Dennis F. Moss for Interveners and Appellants Professional Engineers in California Government and California Association of Professional Scientists.

Joel H. Levinson, West Sacramento, for Intervener and Appellant California Correctional Peace Officers Association.

Carroll, Burdick & McDonough, Gary M. Messing, and Cathleen A. Williams, Sacramento, for Intervener and Appellant California Union of Safety Employees.

Bion M. Gregory, Richard Thomson; Eisen & Johnston Law Corporation and Marian M. Johnston, Sacramento, for Defendants and Respondents Bill Lockyer, Cruz M. Bustamante, Rob Hurtt, and Curt Pringle.


The two actions underlying the consolidated appeals before us arise from the state budget impasses in 1997 and 1998. In the first action, Steven White sought declaratory and injunctive relief regarding the conduct of several state officials during the budget impasse in 1997, and demurrers to the individual's first amended complaint were sustained without leave to amend. In the second action, the Howard Jarvis Taxpayers Association (Jarvis), joined by White, sought injunctive relief barring Kathleen Connell, Controller for the State of California (the Controller), from issuing warrants prior to the passage of a budget in 1998, and the trial court issued a preliminary injunction.

In view of the Legislature's enactment of budget acts for the 1997-1998 and 1998-1999 fiscal years and concessions by Jarvis and White during oral argument before us, we dismiss the appeal in the first action as moot. Although the appeal in the second action is also technically moot, we retain the case for decision due to the importance of the issues raised.

Regarding the preliminary injunction issued in the second action, we affirm in part and reverse in part. As we explain below (see Discussion, pt. II., post), the Controller may disburse funds during a budget impasse when state and federal law properly authorizes or requires their payment, despite the absence of a budget act or emergency appropriation. In some cases, state laws and provisions of the California Constitution function as appropriations outside the budget act. Furthermore, due to the supremacy clause of the United States Constitution, some federal laws require the payment of funds, notwithstanding the requirement for an appropriation in the California Constitution.

To the extent that the parties have identified particular state and federal laws, we conclude that absent a budget act or emergency appropriation, the Controller may properly disburse funds pursuant to (1) continuing appropriations found in statutes and other provisions of law, (2) article III, section 4, and article XVI, section 8.5 of the California Constitution, (3) the Federal Labor Standards Act (29 U.S.C. § 201 et seq.), and (4) federal funding mandates applicable to the Food Stamp program (7 U.S.C. § 2011 et seq.), Foster Care and Adoption programs (42 U.S.C. § 670 et seq.), Child Support program (42 U.S.C. §§ 651-669b), and Child Welfare Services program (42 U.S.C. §§ 620-628).2


Steven White initiated the first underlying action on July 25, 1997. On September 22, 1997, White filed his first amended complaint against the following individuals then holding elected office: Pete Wilson, Governor of the State of California, Gray Davis, Lieutenant Governor of the State of California, Kathleen Connell, Controller for the State of California, and Matt Fong, Treasurer of the State of California, as well as Bill Lockyer, President Pro Tempore of the Senate of the State of California, Cruz M. Bustamante, Speaker of the Assembly of the State of California, Rob Hurtt, Senate Republican Leader, and Curt Pringle, Assembly Republican Leader.3

White's first amended complaint sought declaratory and injunctive relief. It alleged that the Legislature had failed to pass a budget for the 1997-1998 fiscal year by the constitutionally mandated date of June 15, 1997 (Cal. Const., art. IV, § 12), and that from June 15, 1997 to August 18, 1997, when a budget was finally enacted and approved, the Controller was improperly permitted to pay funds from the state treasury to welfare recipients, state employees, members of the Legislature and other individuals without the enactment of a constitutionally mandated emergency appropriation bill (Cal. Const., art. IV, § 12; art. XVI, § 7).

Following a hearing on March 13, 1998, the trial court sustained the defendants' demurrers to White's first amended complaint without leave to amend, concluding that White's claims were moot for the 1997-1998 fiscal year, and premature for the following fiscal year. White appealed from the subsequent order of dismissal (B122178).

On June 24, 1998, Jarvis and White initiated the second underlying action with a complaint for declaratory and injunctive relief, and for a writ of mandate, against the Controller in her capacity as state controller. The complaint alleged that the Legislature had not passed a budget for the 1998-1999 fiscal year by June 15, 1998, that under the state Constitution, the state government "must close" in the absence of a budget or emergency bills, and that the Controller was likely to disburse funds despite this constitutional mandate.

On July 9, 1998, the trial court issued a temporary restraining order barring the Controller from paying out funds absent a budget or an emergency appropriation, unless the payments were authorized by a continuing appropriation or by federal law. Subsequently, the trial court granted intervener status to several state employees, unions, and professional associations (the state employee interveners),4 as well as to Jerome Feitelberg and Alameda Drug Company.5

On July 21, 1998, the trial court issued a preliminary injunction barring the Controller from disbursing any funds absent a budget, with the exception of funds properly appropriated prior to July 1, 1998, for expenditure in the 1998-1999 fiscal year, funds properly appropriated pursuant to emergency bills, and payments of minimum wages and overtime compensation required under the Federal Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) for work performed prior to July 21, 1998. Jarvis and White were required to post a $100,000 bond.

The Controller and the state employee interveners appealed from the order granting the preliminary injunction (B123992). In connection with this appeal, several of the state employee interveners sought to stay enforcement of the preliminary injunction by petition for writ of supersedeas in the Court of Appeal. In addition, the Controller and the state employee interveners filed petitions for writ of mandate in the Supreme Court.6 On July 28, 1998, Division Two of this district issued a writ of supersedeas, and the petitions for writ of mandate before the Supreme Court were subsequently transferred to Division Two (B124395, B124397, B124398). The appeal in the second action and related petitions were ultimately transferred to this court, and consolidated with the appeal in the first action pending before us.


The issue of mootness arises at the threshold of our discussion because the Legislature enacted (albeit belatedly) budgets for the 1997-1998 and 1998-1999 fiscal years. Furthermore, during oral argument, counsel for Jarvis and White represented that no further relief would be sought in the superior court in the underlying actions. In addition, counsel for Jarvis and White represented that White would not pursue his claims in the first action against Lockyer, Bustamante, Hurtt, Pringle, or any other legislators, that the first action had otherwise merged into the second action, and that Jarvis and White seek a decision from us only on the substantive legal issues regarding the Controller's disbursement of funds raised in the second action.

Under these circumstances, the cases before us are technically moot. However, appellate courts have the "discretion to decide otherwise moot cases presenting important issues that are capable of repetition yet tend to evade review." (Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1, 110 Cal.Rptr.2d 412, 28 P.3d 151; see County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1006, 78 Cal. Rptr.2d 272.) Here, the issues presented are of profound public significance and arise with some frequency, but escape review with the enactment of a budget. Long before the events underlying the cases before us, our Supreme Court remarked in Jarvis v. Cory (1980) 28...

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1 cases
  • White v. Davis
    • United States
    • California Supreme Court
    • 1 d4 Maio d4 2003
    ...Court of Appeal opinion in the above entitled case (that is, the Court of Appeal opinion that was previously published at 98 Cal.App.4th 969, 121 Cal. Rptr.2d 51). ...

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