pecg and caps v. brown furlough answer brief

7/29/2019 PECG and CAPS v. Brown Furlough Answer Brief

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Case No. A136338

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

EDMUND G. BROWN, JR., Governor of the State of California, et al.,

Defendants and Appellants

v.

PROFESSIONAL ENGINEERS IN CALIFORNIA

GOVERNMENT, et al.,

Plaintiffs and Respondents.

Appeal from the Superior Court, Alameda County

The Honorable Stephen A. Brick, Department 17

(Superior Court Case No. RG10494800, consolidated with

Case No. RG10530845)

PLAINTIFFS-RESPONDENTS ANSWERING BRIEF

BARBARA J. CHISHOLM(SBN 224656)

PEDER THOREEN

(SBN 217081)

Altshuler Berzon LLP

177 Post Street, Suite 300

San Francisco, CA 94108

Telephone: (415) 421-7151

Facsimile: (415) 362-8064

E-Mail: [email protected]

GERALD JAMES(SBN 179258)

455 Capitol Mall, Suite 501

Sacramento, CA 95814

Telephone: (916) 446-0400

Facsimile: (916) 446-0489

E-mail: [email protected]

Attorneys for Plaintiffs and Respondents Professional Engineers in

California Government, Shabbir Ahmed, Terry Escarda, and California

Association of Professional Scientists


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TABLE OF CONTENTS

Certificate of Interested Entities or Persons

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTRODUCTION AND SUMMARY OF ARGUMENT. . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Unpaid Furloughs of State Employees Represented By PECG

and CAPS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The Budget Act for Fiscal Year 2010-2011 and Reductions to

Employee Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. Mandamus Relief is Appropriate to Remedy the Furloughing of

Employees that Exceeded Legislative Authorization. . . . . . . . . . . . . 7

II. The Trial Court Correctly Held that Employees Represented by

PECG and CAPS Performing Military Base Remediation and

Hazardous Material Management Could Not Lawfully Be

Furloughed Without Violating the Single Subject Rule of the

California Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Health and Safety Code 25353.5 and Water Code 13177.7

Prohibit the Unpaid Furloughing of State Employees

Performing Military Base Remediation and Hazardous

Material Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. The Budget Acts Could Not Ratify the Furlough ProgramBecause Any Such Ratification Would Violate the Single

Subject Rule.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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III. The Trial Court Correctly Held that Appellants Furloughing of

Employees in State Bargaining Units 9 and 10 Through the End of

March 2011 Exceeded the Legislatures Authorization of Reductions

to Compensation that Were Proportionate to Those of Supervisory

Employees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

IV. The Trial Court Reasonably Overruled Appellants Objections to

Evidence of Reductions to Employees Compensation in Fiscal Year

2010-2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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TABLE OF AUTHORITIES

STATE CASES

Bannerman v. Boyle (1911)

160 Cal. 197. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Berkeley Unified School District v. City of Berkeley (1956)

141 Cal.App.2d 841. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Bernard v. Foley (2006)

39 Cal.4th 794.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Bodinson Manufacturing Co. v. California Employment Commission (1941)

17 Cal.2d 321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

Brown v. Chiang(2011)

198 Cal.App.4th 1203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Brown v. Superior Court(2011)

199 Cal.App.4th 971. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bunnett v. Regents of University of Cal. (1995)

35 Cal.App.4th 843. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

California Association of Health Facilities v. Director, Department ofHealth Services (1986)

178 Cal.App.3d 1109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

California Attorneys v. Brown (2011)

195 Cal.App.4th 119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19, 28

California School Employees Association v. Torrance Unified School

District(2010)

182 Cal.App.4th 1040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

California Teachers Association v. Governing Board of Gustine Unified

School District(1983)

145 Cal.App.3d 735. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 13, 14

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California Labor Federation, AFL-CIO v. Occupational Safety and Health

Standards Board(1992)

5 Cal.App.4th 985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Carter v. California Department of Veterans Affairs (2006)

38 Cal.4th 914.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Coan v. State of California (1974)

11 Cal.3d 286. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12

Feitelberg v. Credit Suisse First Boston, LLC(2005)

134 Cal.App.4th 997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Fitch v. Justice Court of Anderson Valley Judicial District(1972)

24 Cal.App.3d 492. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Franchise Tax Board v. Cory (1978)

80 Cal.App.3d 772. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22, 24

Fugitt v. City of Placentia (1977)

70 Cal.App.3d 868. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Glendale City Employees Association, Inc. v. City of Glendale (1975)

15 Cal.3d 328. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Green v. State of California (2007)42 Cal.4th 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 30

Hahn v. Diaz-Barba (2011)

194 Cal.App.4th 1177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Harbor v. Deukmejian (1987)

43 Cal.3d 1078. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Holt v. Kelly (1978)

20 Cal.3d 560. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Homan v. Gomez(1995)

37 Cal.App.4th 597. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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Kavanaugh v. West Sonoma County Union High School District(2003)

29 Cal.4th 911.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Payne v. Superior Court(1976)

17 Cal.3d 908. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Carter(1996)

48 Cal.App.4th 1536. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Lamas (2007)

42 Cal.4th 516.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

People ex rel. Lockyer v. Sun Pacific Farming Co. (2000)

77 Cal.App.4th 619. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

People v. Rodriguez(1999)20 Cal.4th 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Planned Parenthood Affiliates of California v. Swoap (1985)

173 Cal.App.3d 1187. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Pomona Police Officers Association v. City of Pomona (1997)

58 Cal.App.4th 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Professional Engineers in California Government v. Schwarzenegger

(2010)50 Cal.4th 989.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Reinbold v. City of Santa Monica (1976)

63 Cal.App.3d 433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

San Diego Watercrafts, Inc. v. Wells Fargo (2002)

102 Cal.App.4th 308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

San Joaquin Helicopters v. Department of Forestry (2003)

110 Cal.App.4th 1549. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

San Lorenzo Valley Community Advocates for Responsible Education v.

San Lorenzo Valley Unified School District(2006)

139 Cal.App.4th 1356. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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Sanders v. City of Los Angeles (1970)

3 Cal.3d 252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sara M. v. Superior Court(2005)

26 Cal.4th 998.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Stone v. Bancroft(1902)

139 Cal. 78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Tevis v. City & County of San Francisco (1954)

43 Cal.2d 190. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13

Treber v. Superior Court(1968)

68 Cal.2d 128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Troche v. Daley (1990)217 Cal.App.3d 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Wall Street Network, Ltd. v. New York Times Co. (2008)

164 Cal.App.4th 1171. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Wohlgemuth v. Caterpillar Inc. (2012)

207 Cal.App.4th 1252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

STATE STATUTES

A.B. 1700 (Chapter 869, Stats. of 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Budget Act of 2010, S.B. 870, 3.91(a)

(Chapter 712, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 11

California Constitution, art. IV, 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 21

Code of Civil Procedure 1021.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Evidence Code 353. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Evidence Code 354. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Government Code 3513. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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Government Code 3527. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Government Code 19826. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Health & Safety Code 25353.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Insurance Code 11873. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 26

Revised 2008 Budget Act, S.B.3X 2, 3.90(a). . . . . . . . . . . . . . . . . . . . . . 23

Revised 2009 Budget Act, A.B.4X 1, 552. . . . . . . . . . . . . . . . . . . . . . . . . 23

Revised 2012 Budget Act, A.B. 1497, 3.90

(Chapter 29, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

S.B. 1006 (Chapter 32, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Water Code 13177.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

LEGISLATIVE HISTORY MATERIALS

Assembly Floor Analysis of A.B. 1700 (2003-04 Reg. Sess.), as amended

Sept. 2, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Senate Appropriations Committee, Fiscal Summary of A.B. 1700 (2003-04

Reg. Sess.), as amended Aug. 18, 2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

MISCELLANEOUS

Webster Collegiate Dict. (11th ed. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 30

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INTRODUCTION AND SUMMARY OF ARGUMENT

InProfessional Engineers in California Government v.

Schwarzenegger(2010) 50 Cal.4th 989, 1041, 1047-48 (Professional

Engineers), the California Supreme Court affirmed the core principle that

the Executive Branch lacks authority unilaterally to impose unpaid

furloughs on state employees. Such furloughs are lawful only to the extent

they are duly authorized by the Legislature. Id.

This appeal involves two discrete instances in which the unpaid

furloughs of employees represented by Professional Engineers in California

Government (PECG) and the California Association of Professional

Scientists (CAPS) exceeded any valid legislative authorization.1

First, Appellants furloughed employees working in positions

involving hazardous waste remediation and management on military bases,

positions expressly protected from such furloughs by Health and Safety

Code 25353.5 and Water Code 13177.7. As the trial court correctly2

held, the Legislature could not, consistent with the single subject rule of the

California Constitution, override these statutory protections through budget

legislation. JA, pp. 3110-11. Appellants argue that the single subject rule

does not apply because the Legislature has general, reserved authority over

employee compensation. AOB 32-33. But nothing in Appellants argument

PECG and CAPS, together with two individual state employees1

represented by PECG, Shabbir Ahmed and Terry Escarda, are Plaintiffs-

Respondents in this matter.

Appellants include the Governor, the California Department of2

Human Resources (formerly known as the Department of Personnel

Administration or DPA), and various state agencies that employ members

of PECG and CAPS. JA, pp. 1645-47, 1683-88. The State Controller has

not appealed the trial courts ruling.

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can overcome the fact that the Legislatures authorization of furloughs of

employees in statutorily protected positions necessarily change[d] . . . the

scope [and] effect of . . . existing statute[s], and thereby violated the single

subject rule. Franchise Tax Bd. v. Cory (1978) 80 Cal.App.3d 772, 776.

Second, Appellants exceeded the express requirement set forth in the

Budget Act of 2010 (2010 Budget Act), that any reductions in

compensation for represented employees, including any reductions achieved

through the furlough program, be proportionate to reductions made to

nonrepresented employees compensation. S.B. 870, 3.91(a) (Chapter

712, Stats. of 2012). Despite this explicit limitation embedded in the

Legislatures authorization, Appellants furloughed employees in the

bargaining units represented by PECG and CAPS in a manner that resulted

in disproportionate reductions to those employees compensation.

Appellants cannot dispute that the plain meaning of the Budget Act requires

that reductions to employees compensation be of the same proportion or

ratio, and so instead urge this Court to find that proportionate means

something less than its plain meaning. AOB 36-38. But the Legislatures

instruction that reductions to employee compensation be proportionate is

a precise and clear limit. The trial court was correct to set aside the

furlough program to the extent it exceeded the Legislatures authorization

and exacted disproportionate reductions in the pay of PECGs and CAPS

rank-and-file members. JA, p. 3113.

Additionally, contrary to Appellants arguments, writ relief is

appropriate to correct and set aside these unauthorized and unlawful agencyactions. Bodinson Mfg. Co. v. California Employment Commn (1941) 17

Cal.2d 321, 328-30.

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The well-reasoned and considered judgment of the trial court should

be affirmed in its entirety.

STATEMENT OF FACTS

A. Unpaid Furloughs of State Employees Represented By PECG

and CAPS

PECG and CAPS represent close to 16,000 engineers and scientists

employed throughout the State. JA, p. 2406. PECG and CAPS are certified

pursuant to Government Code 3513(b) as the exclusive bargaining

representatives of State Bargaining Unit 9 and 10, respectively. Id.

Additionally, both PECG and CAPS are verified supervisory employee

organizations and, pursuant to Government Code 3527(c), represent state

professional engineers and scientists who are supervisory employees. Id.

In 2008 and 2009, then-Governor Schwarzenegger issued two

Executive Orders requiring the unpaid furloughing of practically all state

employees, including those represented by PECG and CAPS. JA, pp. 2534-

39, 2407. Pursuant to those Executive Orders, employees were subject to

two days of unpaid furloughs each month from February 1 to June 30, 2009,

and then three days of unpaid furloughs per month from July 1, 2009 to

June 30, 2010. JA, pp. 2535, 2539, 2407.

There were no furloughs in July 2010. On July 28, 2010, however,

the Governor issued Executive Order S-12-10, again directing the

furloughing of state employees for three days each month, beginning in

August 2010. JA, pp. 2540-42.

Rank-and-file members of Bargaining Units 9 and 10 were subject tothese three-day-per-month furloughs through the end of March 2011. JA, p.

2407. In contrast, supervisory employees, including those who were

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members of PECG and CAPS, were subject to the three-day-per-month

furloughs only through the end of October 2010. Id.

B. The Budget Act for Fiscal Year 2010-2011 and Reductions to

Employee Compensation

On October 8, 2010, the Legislature passed Senate Bill 870 as the

Budget Act for Fiscal Year 2010-2011. Section 3.91 of the Act provides for

reductions in employee compensation achieved through the collective

bargaining process or through administrative actions for represented

employees and a proportionate reduction for nonrepresented employees

(utilizing existing authority of the administration to adjust compensation for

nonrepresented employees) . . . . S.B. 870, 3.91 (JA, p. 2663) (emphasis

added). The section further provides that the Director of Finance shall

make the necessary reductions to each item of appropriation. Id.

On October 8, 2010, the same day the Legislature passed the 2010

Budget Act, then-Governor Schwarzenegger issued Executive Order S-15-

10, which reduced nonrepresented employees compensation. JA, pp.

2543-45. This Order applied to most state employees who were not

members of a certified State Bargaining Unit, including those supervisory

employees represented by PECG and CAPS. Id.; JA, p. 2411.

Executive Order S-15-10 reduced nonrepresented employees

compensation in two ways: a one-day-per-month personal leave program

and an increase in employees contributions to pension plans of 3 percent

per month. JA, p. 2544. Both of these reductions were effective November

1, 2010. When taken together with the three-day-per-month furloughs towhich the unrepresented employees were subject from August through

October 2010, unrepresented state employees pay for fiscal year 2010-11

was reduced by a total of 8.5 percent. JA, pp. 2411, 3026-27.

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The reductions to nonrepresented employees compensation in fiscal

year 2010-2011 precisely mirror reductions approved by the Legislature on

October 7, 2010, to the compensation of employees in nine State Bargaining

Units represented by Service Employees International Union (SEIU). JA,

pp. 2544-2545. The total reduction to SEIU-represented employees

compensation for fiscal year 2010-2011 was also 8.5 percent. JA, pp. 2412,

3026-27.

PECG- and CAPS-represented employees in Bargaining Units 9 and

10 were subject to the three-day-per-month furloughs longer than the

nonrepresented and SEIU-represented employees, and thus the reduction to

their compensation for the 2010-2011 fiscal year reached 8.5 percent after

the imposition of one unpaid furlough day in March 2011. JA, pp. 2412,

3025-26. Despite this, employees in Bargaining Units 9 and 10 were3

subject to two additional furlough days in March 2011.

C. Procedural History

PECGs writ petition was filed in the trial court on January 21, 2010,

and challenged the furloughs implemented pursuant to the 2008 and 2009

Executive Orders. The Court consolidated PECGs writ petition with nine

subsequently-filed cases challenging the Governors furlough orders with

respect to other state employees. JA, pp. 612-16, 619-23, 644-46, 1268-71,

Appellants do not dispute that the furlough program resulted in a3

greater percentage reduction in compensation for employees in BargainingUnits 9 and 10 than the percentage by which nonrepresented employees

compensation was reduced. Although they object to the trial courts

decision to admit evidence of the exact percentages by which employee

compensation was reduced, those objections are without merit (see infra at

pp. 35-40), and none of the underlying facts are in dispute.

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1457-58. With the exception of the writ petition filed by CAPS (JA, pp.

1273-83), these other matters are no longer pending.

When the Governor issued his July 28, 2010 Executive Order,

requiring three-day-per-month furloughs beginning in August 2010, PECG

and CAPS sought a temporary restraining order enjoining the furlough

program. JA, pp. 648-74. The trial court entered a temporary restraining

order and this Court denied a writ of supersedeas filed by the Governor and

DPA. JA, pp. 1249-59, 1272. The Supreme Court then granted review and

stayed the trial court proceedings, deferring further action until after a

decision inProfessional Engineers in California Government v.

Schwarzenegger. JA, p. 1623;see also 50 Cal.4th at 1008.

InProfessional Engineers, the Court rejected the Governors

arguments that he had authority unilaterally to order unpaid furloughs of

state employees, confirming that such power rests with the Legislature. 50

Cal.4th at 1041. The Court, however, held that the Legislature, through

budget legislation, had ratified the furloughs implemented pursuant to the

2008 and 2009 Executive Orders. Id. at 1043, 1047-48. The Court did not

rule on the validity of the Governors July 28, 2010 furlough order. Id. at

1008.

After the Supreme Courts decision inProfessional Engineers

became final, the Supreme Court remanded this matter to this Court. JA, p.

1637. At the request of PECG and CAPS, this Court subsequently

remanded the cases to the trial court for further proceedings in light of

Professional Engineers, the enactment of the 2010 Budget Act, and otherintervening developments. JA, p. 2558.

On remand to the trial court, and in light of intervening

developments, PECG and CAPS filed amended writ petitions challenging

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the legality of the furloughs in light of the Supreme Courts holding that the

Governor could not unilaterally impose furloughs without proper

authorization from the Legislature. JA, pp. 1640-75, 1676-1727. In

briefing the petitions, PECG and CAPS challenged three aspects of the

furlough program that were not addressed byProfessional Engineers: (1)

the furlough of employees at state agencies that do not receive

appropriations through the Budget Act, and thus for whom the Budget Act

could not have constituted legislative ratification of the furlough program;

(2) the furlough of employees in positions involved with military base

remediation and hazardous material management at the Department of

Toxic Substance Control (DTSC) and the State Water Resources Control

Board (SWRCB), positions that are protected from any form of personal

services limitations by Health and Safety Code 25353.5 and Water Code

13177.7; and (3) the furlough of employees in Bargaining Units 9 and 10

in March 2011, after the percentage reduction to their compensation for

fiscal year 2010-2011 came level with the reductions to nonrepresented

employees compensation, such that the furloughs exceeded the

authorization set forth in the 2010 Budget Act. JA, pp. 2386-88.

The trial court ruled in favor of PECG and CAPS on all three

grounds. JA, pp. 3100-13. Appellants do not challenge the trial courts

ruling on the first ground, with respect to agencies that do not receive

appropriations through the Budget Act. JA, pp. 3206-39; AOB p.4 n.2.

ARGUMENT

I. Mandamus Relief is Appropriate to Remedy the Furloughing ofEmployees that Exceeded Legislative Authorization

As a threshold matter, Appellants erroneously contend that writ relief

is unavailable in this action. It is well established that the proper method of

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obtaining judicial review of most public agency decisions is by instituting a

proceeding for writ of mandate. Bodinson Mfg. Co., 17 Cal.2d at 328-30.

Generally, a writ will lie when there is no plain, speedy, and adequate

alternative remedy; the respondent has a duty to perform; and the petitioner

has a clear and beneficial right to performance. Payne v. Superior Court

(1976) 17 Cal.3d 908, 925. Writ relief is specifically appropriate to

correct those acts and decisions of administrative agencies which are in

violation of law, where no other adequate remedy is provided. Bodinson

Mfg. Co., 17 Cal.2d at 329. As detailed below, writ relief is appropriate

here because Appellants implementation of the furlough program exceeded

any legislative authorization of those furloughs, and violated Appellants

clear, present, non-discretionary, ministerial obligations under the Water

Code, Health and Safety Code, and the 2010 Budget Act. Mandamus is

therefore an appropriate vehicle to determine whether Appellants

administrative actions comply with the Legislatures enactments. See also

California Attorneys v. Brown (2011) 195 Cal.App.4th 119, 127 (writ of

mandate directing Governor to set aside Executive Order insofar as it

conflicted with statutory prohibition on furloughs of certain employees).

Appellants nevertheless contend that writ relief is inappropriate

because this action is merely a wage dispute between . . . state employees

and the state employer. AOB 17. Although a claim for money damages,

including back pay, is sometimes construed as a legal remedy, the

overwhelming weight of authority establishes that mandamus relief is

available where, as here, an obligation to pay money rests upon an officialsactions and disputes as to the proper construction of a statute or ordinance

defining or giving rise to the exercise of official duty. California

Teachers Assn v. Governing Bd. of Gustine Unified Sch. Dist. (1983) 145

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Cal.App.3d 735, 747 (quoting Tevis v. City & County of San Francisco

(1954) 43 Cal.2d 190, 198); see also Coan v. State of California (1974) 11

Cal.3d 286, 291 (Although a claim for payment of salary is in effect a

money claim, mandamus is a proper remedy where the dispute concerns the

proper construction of a statute or ordinance giving rise to the official duty

to pay the salary claim.). These cases also emphasize that mandamus is

appropriate not only where there is a need for judicial construction of the

statute or ordinance giving rise to the official duty, but also because there

may be a need to obtain official cooperation to ensure payment. Tevis, 43

Cal.2d at 198;see also Holt v. Kelly (1978) 20 Cal.3d 560, 565 n.5

([M]andamus may be brought to start the chain of action designed to

compel a ministerial duty by a public officer, even if the ultimate goal may

be recovery of a sum of money.); Glendale City Employees Assn, Inc. v.

City of Glendale (1975) 15 Cal.3d 328, 343 (often the payment of the

wages of apublic employee requires certain preliminary steps by public

officials) (emphasis in original).

Courts thus repeatedly have held that writ relief may properly be

obtained to ensure public officials comply with their legal obligations, even

when such compliance results in a back pay award. See, e.g., id. at 343-44

(mandamus appropriate to compel city employer to pay wages in

accordance with duties established in collective bargaining agreement);

Sanders v. City of Los Angeles (1970) 3 Cal.3d 252, 259-62 (granting writ

relief to obtain back pay where city failed to comply with legal obligation to

adjust salaries); Cal. Sch. Employees Assn v. Torrance Unified Sch. Dist.(2010) 182 Cal.App.4th 1040, 1044 (writ of mandate proper for addressing

wage claims by school district employees where dispute was based on

alleged statutory duty); Fugitt v. City of Placentia (1977) 70 Cal.App.3d

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868, 876 (Mandamus is proper to compel the payment of back salary to a

city employee for the period during which he was wrongfully discharged.);

Reinbold v. City of Santa Monica (1976) 63 Cal.App.3d 433, 438 (action

for payment of accumulated sick leave properly brought as a writ

proceeding where lack of payment was caused by improperly excluding

petitioner from bargaining unit; and mandamus relief appropriate to

compel public officials to do what is necessary to make payment to

employees);see also Bunnett v. Regents of Univ. of Cal. (1995) 35

Cal.App.4th 843, 849 (universitys denial of certain monetary retirement

benefits should have been brought as an action for ordinary mandate, not a

civil action);Berkeley Unified Sch. Dist. v. City of Berkeley (1956) 141

Cal.App.2d 841, 845-46 (where auditor withheld school funding based on

erroneous conception of his duties, writ of mandate more appropriate than

simple action for money, as it better comports with the dignity of public

officials who stand by their duties as they see them, [and it] also carries

through to conclusion by directing issuance of a warrant).4

Pomona Police Officers Association v. City of Pomona (1997) 584

Cal.App.4th 578, cited by Appellants (AOB 16), provides a useful contrast.

There, the court held that a unions claim for economic benefits was a claim

for damages for which there was an adequate remedy at law through a

breach of contract action. 58 Cal.App.4th at 590. At issue was an

agreement between the union and the city to convert certain portions of

retirement contributions to salary for retirement purposes. Id. at 582-83.

When the agreement could not be implemented because of existing statutory

constraints, and the parties could not agree on terms of a new agreement,

the union sought a writ to compel the city to provide an economic benefitequivalent to what had been contemplated in the original agreement. Id. at

590. The Court of Appeal affirmed the denial of a writ, finding that the

unions claim was in essence a breach of contract action. Id. The court

acknowledged the established exception for wage claims involving disputes

(continued...)

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While Appellants concede that writ relief may be had in some

circumstances to compel public officials to pay employees salaries, they

contend writ relief is properonly when the legal duty at issue is the specific

duty to pay those salaries. AOB 18-20. As an initial matter, even assuming

that Appellants proposed narrow rule was supported by the case law

(which it is not), the statutes at issue in this case do establish the obligation

to pay salaries. Specifically, both Water Code 13177.7(b) and Health and

Safety Code 25353.5(b) prohibit the reduction in salaries through

personal services limitations, including any position reductions. And the

2010 Budget Act the source of the other statutory obligation at issue

establishes the amount by which employees salaries may be reduced

through furloughs. Thus, all of the legal obligations at issue directly control

Appellants ability to reducethe hours and salaries of employees

represented by PECG and CAPS.5

(...continued)4

as to the proper construction of a statute, but held it did notapply to the

case. Id. (noting that in cases where exception does apply, ultimate effect

of a decision may be to adjudicate a money claim). Because PECG and

CAPS claims here do involve the proper construction or application of the

legislatively approved furlough program, as well as prohibitions of the

Water Code and Health and Safety Code, they are a proper subject for a

mandamus action.

In the trial court, Appellants argued that their statutory obligations5

are not present because the last furloughs occurred in 2011. Appellants

appear to have abandoned that argument on appeal. In any event, it lacks

merit. As a general matter, the requirement that there be a present duty

stems from the fact that mandamus will not lie where the act complained ofhas not yet occurredand is thus contingent or speculative. See, e.g., Treber

v. Superior Court(1968) 68 Cal.2d 128, 134 (rule that there must be a

present duty is most commonly invoked in denying an application to

compel the performance of future acts);Brown v. Superior Court(2011)

(continued...)

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Moreover, Appellants argument relies on an overly narrow view of

the types of legal obligation that may be involved in mandamus proceedings

with related wage claims. See AOB 20 (contending the legislative

enactments which are the subject of the courts review must create the very

duty to pay the salary claim which is before the court). The case law

simply does not support such a constrained reading. Appellants base their

argument on a single statement in Coan, 11 Cal.3d at 291, that mandamus

is a proper remedy where the dispute concerns the proper construction ofa

statute or ordinance giving rise to the official duty to pay the salary claim.

(Emphasis added.) While this is true as far as it goes, other cases establish

that the availability of writ relief is broader and that a mandamus action

over a public employees salary is appropriate whenever the claim turns on

(...continued)5

199 Cal.App.4th 971, 995 (denying writ relief related to unused furlough

days where potential duty to pay for those days contingent on future

events); Fitch v. Justice Court of Anderson Valley Judicial Dist. (1972) 24

Cal.App.3d 492, 495 ([M]andate [will not] lie to perform a future duty if

no present duty to perform exists.). Although the requirement that apresent duty exists is equally applicable to acts which it is too late to

perform, that generally occurs only when the party required to act has lost

jurisdiction to do so. See, e.g., Treber, 68 Cal.2d at 134; Cal. Assn of

Health Facilities v. Dir., Dept of Health Servs. (1986) 178 Cal.App.3d

1109, 1114 (to accept contention there is no present duty because statutory

deadline for implementing program had passed would encourage others to

ignore a deadline in order to argue that their duty to act had been

extinguished; duty too late to perform only where the party in question no

longer ha[s] the legal authority to act (emphasis in original)). Appellants

have not, and cannot, claim that they lack legal authority to comply with acourt order in this case. Finally, the numerous cases discussed above,supra

at pp. 9-10, where writ relief was granted to award back pay, conclusively

demonstrate that an officials failure to fulfill mandatory obligations to

make salary payments in the past gives rise to a present duty for purposes

of mandamus.

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construction of a statute or ordinance defining or giving rise to the exercise

of official duty. Tevis, 43 Cal.2d at 198;see alsoCaliforniaTeachers

Assn , 145 Cal.App.3d at 747.

Thus, for example, the California Supreme Court inBannerman v.

Boyle (1911) 160 Cal. 197, held that mandamus was appropriate to compel

back pay from an auditor where the failure to pay was based on the

auditors belief that the petitioner had been removed from his position

during the relevant period. The central legal issue was whether the mayor

had met requirements of the city charter for removing the petitioner from

his position. Id. at 203-08. Mandamus was proper even though the removal

provisions of the charter arguably did not create the duty to pay petitioners

salary. But there, as here, the failure to comply with mandatory legal

requirements necessarily gave rise to an obligation to provide back pay, and

that claim was properly adjudicated in a mandamus proceeding. Id. at 209.

Appellants also erroneously attempt to characterize PECG and

CAPS claims as a challenge to Appellants exercise of discretion. AOB

20-21. But PECG and CAPS bring distinct challenges to aspects of the

furlough program, each of which is based on the contention that the

furloughs exceeded the scope of any valid legislative authorization. These

challenges to the administrative actions of the Governor and DPA do not

relate to any exercise of judgment or discretion. Rather, they are claims that

executive officials erred in implementing ministerial duties when they

furloughed employees in excess of any legislative authorization to do so.

Thus, Appellants repeated assertion that the Legislatures ratification ofstate employee furloughs through the various budget acts simply represents

an exercise of theLegislatures reserved authority over state employee

compensation (AOB 21 (quotingProfessional Engineers , 50 Cal.4th at

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1050-51) (emphasis added)), is simply not relevant.

Finally, Appellants erroneously contend that the trial court granted

the writ, rather than requiring the filing of a damages action, simply as a

matter of judicial economy. While the trial court observe[d] in passing

that in light of the procedural history of this case, it would be

inappropriate, unfair, and a waste of the litigants and the courts resources

to dismiss the petition and require [PECG and CAPS] to file a new

complaint pursuing the very same claims in an action at law, the court did

not base its ruling solely on that observation. Rather, the court clearly and

(as detailed above) correctly held that [w]rit [r]elief is [a]vailable and

[a]ppropriate. JA, pp. 3103, 3104. But cf. California Teachers Assn , 145

Cal.App.3d at 748 (where legal entitlement to compensation was the proper

subject of mandamus action, petitioner not required to bring separate action

at law to recover funds; all of the issues can best be handled as part of one

proceeding before one judge).6

II. The Trial Court Correctly Held that Employees Represented by

PECG and CAPS Performing Military Base Remediation and

Hazardous Material Management Could Not Lawfully BeFurloughed Without Violating the Single Subject Rule of the

California Constitution

The trial court correctly concluded that the Budget Acts did not

lawfully ratify the furlough of employees protected by Health and Safety

Even if the trial court erroneously had based its decision solely on6

the fact that granting writ relief was more expeditious (which it did not), theCourt should nevertheless affirm the judgment, as writ relief is undeniably

proper. Troche v. Daley (1990) 217 Cal.App.3d 403, 407 ([A] ruling or

decision, itself correct in law, will not be disturbed on appeal merely

because given for a wrong reason. (quotation marks and citation omitted;

alteration in original)).

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Code 25353.5 and Water Code 13177.7 because such ratification would

violate the single subject rule contained in section 9 of article IV of the

State Constitution. JA, pp. 3106-11.

Appellants do not dispute, nor could they, that the Governor lacked

authority unilaterally to impose unpaid furloughs on state employees. In

accordance with the rule ofProfessional Engineers, the Governors

furloughs were lawful only if and to the extentthey were approved by the

Legislature. 50 Cal.4th at 1041, 1050-51. Appellants thus rely on the

Revised 2008, 2009 and 2010 Budget Acts as the source of legislative

approval of the furloughs of the 255 state employees represented by PECG

and CAPS who worked in positions that, during the time the challenged

furloughs were in effect, received non-state funding to perform military

base remediation and hazardous substance management. AOB 28-29; see

also JA, pp. 2409-11.7

The problem with Appellants reliance on the budget legislation is

that these military base positions were protected from furloughs by

provisions of the Health and Safety Code and Water Code that expressly

prohibit the Controller and the Department of Finance from imposing any

. . . personal service limitations of any kind on the positions. Health &

Safety Code 25353.5(b); Water Code 13177.7(b). Therefore, to the

extent any of the Budget Acts purported to authorize the furlough of

personnel in these statutorily protected positions, they ran afoul of the

Constitutions single subject rule.

Appellants have not disputed that PECG and CAPS represent7

employees who worked in positions covered by Health and Safety Code

25353.5(b) and Water Code 13177.7(b), and were furloughed pursuant to

the Executive Orders.

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Under Californias single subject rule, a Budget Act may not

substantively amend and change existing statute law. Professional

Engineers, 50 Cal.4th at 1049 (internal citations and formatting omitted);

see also Cal. Const., art. IV, 9. Appellants attempt to hide from this

single-subject problem, arguing first (and for the first time), that Health and

Safety Code 25353.5 and Water Code 13177.7 do not actually protect

employees working in military base remediation positions from furloughs;

and second, that the Budget Acts authorization of furloughs of employees

in protected positions had no effect on the existing statutory protections,

and thus comports with the single subject rule. As detailed below, neither

of these arguments has any merit.

A. Health and Safety Code 25353.5 and Water Code

13177.7 Prohibit the Unpaid Furloughing of State

Employees Performing Military Base Remediation and

Hazardous Material Management

The trial court properly held that the Health and Safety Code

25353.5 and Water Code 13177.7 protect employees in the covered

military base remediation positions against furloughs. JA, p. 3108.

Specifically, the court held that furloughing of employees in covered

positions was the imposition of personal services limitations prohibited

by the statutes. Id.

In the trial court, Appellants did not dispute that the furloughs

constituted personal services limitations within the meaning of Health

and Safety Code 25353.5(b) and Water Code 13177.7(b). JA, p. 3106.

Thus, Appellants complaint that the trial court did not engage in a lengthy

analysis of this issue (AOB 25), is not well taken. In any event, Appellants

late objection to the plain meaning of these statutes is without merit. The

statutory language, as well as the legislative history, confirm that the

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Legislature plainly intended Health and Safety Code 25353.5 and Water

Code 13177.7 to insulate state employee positions related to military base

clean-up from the vagaries of budget battles and across-the-board

reductions to agencies budgets such as those occasioned by the furloughs.

Health and Safety Code 25353.5(b) and Water Code 13177.7(b)

both prohibit the Controller and the Department of Finance from

impos[ing] any hiring freeze orpersonal services limitations, including

any position reductions, upon any direct or indirect position at DTSC and

the SWRCB relating to the oversight and support of hazardous substance

management and remediation work at military bases. Health & Safety Code

25353.5(b); Water Code 13177.7(b).

Because the statutes refer to personal services limitations as

including[,] but not limited to any position reductions[,] the

Legislatures use of the term must be construed as encompassing personal

services limitations beyondthe reduction of covered positions. Personal

services refers generally to employment. See Stone v. Bancroft(1902) 139

Cal. 78, 82 (describing contract of employment as one for personal

services). Thus, any . . . limitations on personal services is plainly read

as including any restrictions of employee time or services, including those

caused by the furloughs. See Green v. State of Cal. (2007) 42 Cal.4th 254,

260 (language should be given its usual and ordinary meaning).

Personal services also has a specific and commonly understood

meaning in the context of state budgets. SeeWohlgemuth v. Caterpillar

Inc. (2012) 207 Cal.App.4th 1252, 1261 (The meaning of the words of astatute is determined with reference to the context in which the words are

used.); see also People v. Carter(1996) 48 Cal.App.4th 1536, 1540

(Ordinarily words used in a statute are presumed to be used in accordance

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with their established legal or technical meaning.). The personal

services budgets of state agencies cover employee compensation. See

Governors Feb. 20, 2009 Veto Message re: 2009 Budget Act, pp. 2, 4, 5, 7,

9, attached as Exh. B to Decl. of Barbara J. Chisholm in Support of

Plaintiffs-Respondents Request for Judicial Notice (Chisholm Decl.);see

also Chisholm Decl., Exh. A, p. 54 (Department of Finance summary of

2008 Budget Act describing reductions in departmental personal services

budgets); Brown v. Chiang(2011) 198 Cal.App.4th 1203, 1226 (quoting

State Controllers arguments referring to reductions in budgeted employee

compensation as cutbacks in . . . personal service budgets). Thus, and

as Governor Schwarzeneggers own 2009 budget veto message reflects,

reductions to an agencys personal services budget encompass state

employee compensation reduction[s] for furloughs. Chisholm Decl., Exh.

B, pp. 2, 5, 9, 11.

The accepted meaning of personal services in the budgetary

context properly informs the reading of Health and Safety Code

25353.5(b) and Water Code 13177.7(b), in particular because the statutes

were enacted with the intent of insulating covered positions from across-

the-board budget cuts. This is reflected in the statutes legislative history,

as well as in other provisions of the statutes.

Both Code sections were enacted in 2003 in a single bill. JA, pp.

2678-82 (A.B. 1700). At the time of their enactment, not only was there a

state hiring freeze in place (implemented pursuant to an Executive Order),

but there was a proposed 10 percent across-the-board cut to state personnelthat would have affected the covered positions. See JA, p. 2687 (Sen.

Appropriations Comm., Fiscal Summary of A.B. 1700 (2003-04 Reg.

Sess.), as amended Aug. 18, 2003); JA, p. 2684 (Assem. Floor Analysis of

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A.B. 1700 (2003-04 Reg. Sess.), as amended Sept. 2, 2003). The Senate

committee analysis explained that, if these across-the-board cuts were

applied to positions involved in military base clean-up projects, the State

would be required to return current federal funding and would lose future

federal funding for military base remediation projects. JA, p. 2687 (noting

intent to preserve federal funds going to California to pay for [military

base] clean-up). Therefore, to avoid such losses as a result of across-the-

board cuts, the statutes expressly [e]xemptcertain positions within

[DTSC] and [SWRCB] from any hiring freezes and staff cutbacks. JA, p.

2684 (Assem. Floor Analysis of A.B. 1700). See also JA, p. 2684 (Sen.8

Appropriations Comm., Fiscal Summary of A.B. 1700: bill would exempt

[covered] positions from hiring freezes or other personal services

limitations).

That Health and Safety Code 25353.5 and Water Code 13177.7

were intended to insulate the covered positions from the effects of budget

legislation is also reflected in subdivision (c) of the statutes. Those

subdivisions direct the Controller and Department of Finance to exclude

By describing the statutory language, which prohibits freeze[s] or8

personal services limitations, as exempting covered positions from any

hiring freezes and staff cutbacks, the Assembly floor analysis mirrored the

language of Insurance Code 11873(c), which prohibits any freezes and

staff cutbacks. . . . The Legislature thus clearly understood Health and

Safety Code 25353.5(b) and Water Code 13177.7(b) to have an effect

similar to Insurance Code 11873(c). In California Attorneys v. Brown,

supra, 195 Cal.App.4th at 126, this Court held that Insurance Code11873(c)s prohibition on staff cutbacks encompassed reductions in

employees hours caused by the furlough program. The protections of the

Health and Safety Code and Water Code should be construed accordingly.

See People v. Lamas (2007) 42 Cal.4th 516, 525 (similar statutes should be

construed in light of one another) (internal quotation marks omitted).

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covered positions and the specific amounts associated with the positions

from the relevant state agencies base for purposes of calculating any

budget or position reductions required by any state agency or any state law.

Health & Safety Code 25353.5(c); Water Code 13177.7(c). As such, to

the extent budget legislation (or any other state law) purports to require

reductions to an agencys personal services budget, the statutes expressly

require that the amounts associated with covered positions be excluded

from such reductions.

Thus, consistent with the common usage of the term personal

services as referring to budget items covering employee compensation, and

consistent with the Governors own acknowledgment that furloughs

constituted a reduction to personal services (Chisholm Decl., Exh. B, pp. 2,

5, 9, 11), there can be no doubt that Health and Safety Code 25353.5(b)

and Water Code 13177.7(b) prohibit the imposition of furloughs on

employees in covered positions.9

B. The Budget Acts Could Not Ratify the Furlough Program

Because Any Such Ratification Would Violate the Single

Subject Rule

Appellants argue that the Legislature, through the Revised 2008

Budget Act, and the 2009 and 2010 Budget Acts, ratified the furlough of all

state employees covered by then-Governor Schwarzeneggers Executive

Appellants also argue that Health and Safety Code 25353.5 and9

Water Code 13177.7 do not protect the covered positions from furloughs

because the statutes prohibit only the Controller and Department of Financefrom imposing personal services limitations. AOB 25-28. This, however,

is an argument relevant to the effect of the Legislatures purported

authorization of the furloughs on the protections offered by the Health and

Safety and Water Codes, and is therefore addressed below, infra at pp. 25-

26, in the context of the single subject rule analysis.

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Orders, including those in positions involving military base remediation

activities and covered by Health and Safety Code 25353.5 and Water Code

13177.7. But such ratification is ineffective, as it would violate the single

subject rule set forth in the California Constitution.10

Article IV, section 9 of the California Constitution requires that

every statute embrace but one subject, which shall be expressed in its

title. Cal. Const., art. IV, 9. As this Court has explained, the single

subject rule grew out of a concern with ensuring that rider provisions not

slip[] through as part of unrelated legislation, especially where they may

not have carried if the legislative mind had been directed to them.

Planned Parenthood Affiliates of Cal. v. Swoap (1985) 173 Cal.App.3d

1187, 1196 (quotingEx parte Hallawell(1909) 155 Cal. 112, 114).

A Budget Act is fully subject to scrutiny under the single subject

rule. California Labor Fed., AFL-CIO v. Occupational Safety & Health

Standards Bd. (1992) 5 Cal.App.4th 985, 991;see also Harbor v.

Deukmejian (1987) 43 Cal.3d 1078, 1100-01 & n.23 (applying single

subject rule to bill purporting generally to address fiscal affairs). The

single subject of any Budget Act is the appropriation of funds for

government operations, and [the Budget Act] cannot constitutionally be

employed to expand a state agencys authority, or to substantively amend[]

and chang[e] existing statute law. California Labor Fed., 5 Cal.App.4th

at 991 (quoting Swoap, 173 Cal.App.3d at 1198);see also San Joaquin

Appellants complain that the single subject issue was raised for10

the first time in the trial court in PECG and CAPS reply brief. AOB 29

n.5. But as the trial court correctly noted, the issue was squarely presented

by the unions opening brief, which explained that reading the budget

legislation to authorize the furloughs would violate the Constitutions single

subject rule. See JA, pp. 2395, 3106.

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Helicopters v. Department of Forestry (2003) 110 Cal.App.4th 1549, 1558

(Budget bills that substantively change existing law violate the single-

subject rule.).

For purposes of this analysis, conflict with existing law is neither an

essential, nor even a normal attribute of an amendment. Franchise Tax

Bd., 80 Cal.App.3d at 776. Rather, [a]n amendment is . . . any change of

the scope or effect of an existing statute, whether by addition, omission, or

substitution of provisions, which does not wholly terminate its existence,

whether by an act purporting to amend, repeal, revise, or supplement, or by

an act independent and original in form[.] Id. (internal quotations

omitted). For example, under the single subject rule, the Legislature may

not in a budget bill constitutionally grant authority to a state agency that the

agency does not otherwise possess. Professional Engineers, 50 Cal.4th at

1049.

Thus, as this Court has explained, the test of whether a Budget Act

unconstitutionally effects an amendment of existing law for purposes of the

single subject rule:

is determined not by title alone, or by declarations in the new

act that it purports to amendexisting law. On the contrary, it

is determined by an examination and comparison of its

provisions with existing law. If its aim is to clarify or correct

uncertainties which arose from the enforcement of the

existing law, or to reach situations which were not covered by

the original statute, the act is amendatory, even though in its

wording it does not purport to amend the language of the prior

act.

Swoap, 173 Cal.App.3d at 1199 (emphasis in original; quotation marks

omitted), quoted in California Labor Fed., 5 Cal.App.4th at 991.

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The Budget Acts authorization of furloughs of employees in

positions performing military base remediation and hazardous substance

clean-up squarely contradicts the mandate of Health and Safety Code

25353.5 and Water Code 13177.7 that these positions not be reduced or

limited, and thus violates the single subject rule.

In California Labor Federation v. Occupational Safety & Health

Standards Board,supra , this Court held that provisions of a Budget Act

were an invalid amendatory enactment in violation of the single subject

rule. 5 Cal.App.4th at 994-95. The Budget Act provisions at issue

established a cap on the hourly rate the State would pay toward certain

categories of attorney fee awards against state agencies. Id. at 991-92. The

Court explained that existing law, Code of Civil Procedure 1021.5,

contain[ed] an implicit cap of its own by limiting a party to recovering a

reasonable fee, and that the budget restrictions purport to impose a

wholly different cap . . ., and thus were a markedly different substantive

measure. Id. at 994-95;see also Homan v. Gomez(1995) 37 Cal.App.4th

597, 601 (budget restriction violated single subject rule where it restricted

and amend[ed] regulations which provide[d] for family leave for all

qualified prisoners).

Here, the Budget Acts purported authorization of furloughs of

employees working on military base remediation projects is wholly

different from the statutory protections afforded these employees by the

Health and Safety Code and Water Code. California Labor Fed., 5

Cal.App.4th at 994-95. Indeed, a comparison of [the Budget Acts]provisions with existing law (Swoap, 173 Cal.App.3d at 1199), reveals

directly conflictingmandates. On the one hand, the Budget Acts authorize

the furloughs and direct the Director of Finance to make corresponding

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reductions to employee compensation. See Revised 2008 Budget Act,

S.B.3X 2, 3.90(a); Revised 2009 Budget Act, A.B.4X 1, 552 (amending

3.90 of the original 2009 Budget Act); 2010 Budget Act, S.B. 870,

3.91(b). On the other hand, the preexisting Health and Safety Code and

Water Code provisions,prohibit the Department of Finance from instituting

furloughs of employees in covered positions, and, further, require the

Department to exclude covered positions and associated budget amounts

from the relevant agencies budget for purposes of calculating any budget

or position reductions required by . . . any state law. Health & Safety Code

25353.5(b), (c); Water Code 13177.7(b), (c). By attempting to override

and change these instructions to the Department of Finance, there can be no

question that the Budget Acts authorization of furloughs changes the effect

of existing law and is an amendatory enactment in violation of the single

subject rule.

But even if the Budget Acts authorization of the furloughs of

employees in protected positions did not directly conflict with the mandate

of the Health and Safety Code and Water Code provisions (which it does),

there can be no question that the Legislatures authorization of the

furloughs changes . . . the scope [and] effect of those statutory

protections. Franchise Tax Bd., 80 Cal.App.3d at 776.

It is well established that budget legislation can modify the effect of

existing laws even when it does not directly conflict with those laws. For

example, inPlanned Parenthood v. Swoap,supra, the budgetary provisions

at issue purported to prohibit the allocation of any funds appropriated to theOffice of Family Planning to any group promoting abortion services. 173

Cal.App.3d at 1191. Existing statutes provided for the Office to engage in

family planning education and services, and the Court concluded that the

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budget restriction was impermissibly amendatory, foreven if it did not flatly

contradictthe family planning statutes it sought to clarify them, and to

impose[] substantive conditions that nowhere appear in existing law.

California Labor Fed., 5 Cal.App.4th at 994 (discussing and quoting

Swoap, 173 Cal.App.3d at 1201) (emphasis added). The Court explained

that the Budget Act could not properly restrict activities that were

authorized under existing law. Swoap, 173 Cal.App.3d at 1201.

Similarly, in California Labor Federation,supra, the Court noted

that even if the existing law were viewed as ambiguous and open to

judicial interpretation, such that it would not directly conflict with the

Budget Act, the provisions [of the Budget Act] [were] amendatory for

purporting to supersede the judicial resolution of that ambiguity with a

legislative clarification set forth as an appropriation. Id. at 995.

Appellants here argue that the Budget Acts did not change the effect

or scope of existing protections under the Health and Safety Code and the

Water Code because the Legislature has reserved authority to alter state

employee compensation. AOB 32-33. Under Appellants theory, the

Budget Acts do not have an amendatory effect because Health and Safety

Code 25353.5 and Water Code 13177.7 do not restrict the authority of the

Legislature to furlough, and only impose obligations on the Director of

Finance and the Controller.

But the question for this Court is not whether the Legislature has the

authority to implement furloughs. Rather, it is whether the Legislatures

attempt to do so in budget legislation modified the scope of existing law.See California Labor Fed., 5 Cal.App.4th at 995-96 (reiterat[ing] that the

Legislature is presumptively free to limit existing law, but that [w]hat the

Legislature may notdo is to enact existing law granting a right, and then

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retract or impair th[at] right . . . through amendments masquerading as

Budget Act provisions).11

Even if the Health and Safety Code and Water Code provisions are

read as Appellants urge i.e., as impliedly reserving to the Legislature the

authority to impose the otherwise prohibited limitations on personal

services the Budget Acts still have a prohibited amendatory effect. By

authorizing the Department of Finance to implement furloughs that

theretofore the Department wasstatutorily prohibitedfrom undertaking, the

Budget Acts undoubtedly impose[] substantive conditions that nowhere

appear[ed] in existing law. Swoap, 173 Cal.App.3d at 1201. This is no

different from the situation in Swoap, wherein the Office of Family

Planning was authorized by existing law to appropriate money for family

planning, and then was instructed through budget legislation not to

appropriate money to organizations supporting abortions. Id. at 1199-1201.

The authorization of furloughs of employees performing military base

remediation work is a new, substantive provision that certainly was not

Of course, it is always the case the Legislature has the power to11

amend a statute or to enact other legislation that would affect existing

statutes. To the extent the Legislature wants both to dictate appropriations

for a particular subject andto change or clarify the effect of existing law,

nothing prevents it from including provisions in budget legislation and

passing a companion bill to make the statutory changes necessary to

implement the provisions in the budget legislation. Indeed, this is exactly

what the Legislature did in passing the amended 2012-13 Budget Act,

which authorized the furlough of certain state employees. A.B. 1497, 3.90

(Chapter 29, Stats. of 2012). The Legislature also passed a trailer bill (S.B.1006, Chapter 32, Stats. of 2012), which made substantive revisions to

existing statutes, including an amendment to Insurance Code 11873, which

generally exempts employees at the State Compensation Insurance Fund

from furloughs, to allow furloughs during Fiscal Year 2012-13. See S.B.

1006, 26.

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present in existing law. There is no escaping the fact that the Budget Acts,

by authorizing furloughs of employees in statutorily protected positions, had

the effect of amending existing substantive law.12

Appellants rely onProfessional Engineers for their suggestion that

the Legislatures reserved authority over employee compensation

somehow immunizes the Budget Acts authorization of furloughs from

scrutiny under the single subject rule. AOB 32-33. But nothing in

Professional Engineers alters the traditional single subject rule analysis.

There, the Court held that the Budget Act did not substantively amend or

change Government Code 19826. 50 Cal.4th at 1049-50. Section13

19826, however, did not authorize or prohibit furloughs, or provide any

instructions at all to the Executive Branch regarding such furloughs; rather,

as the trial court found, it simply gave the DPA authority to negotiate

salaries and left the last word to the Legislature. JA, p. 3110. Thus, there

was no conflict with Section 19826 when the Legislature ratified the

furloughs. 50 Cal.4th at 1051. Here, in contrast, the Legislatures furlough

of employees in protected military base positions undisputably affects and

undermines the scope of existing substantive protections offered by the

Nor would it work for Appellants to argue that the Budget Acts12

simply clarify the Legislatures reserved authority to furlough employees in

the protected provisions. As in Swoap, such a clarification that purports to

reach situations which were not covered by the original statute is a

prohibited amendatory enactment. 173 Cal.App.3d at 1201 (quotation

marks omitted).

Professional Engineers did not consider whether legislative13

authorization of the furloughs presented a single-subject problem with

respect to employees in positions covered by Health and Safety Code

25353.5 and Water Code 13177.7; nor was that issue presented to the

Court.

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Health and Safety and Water Code provisions, protections that were

intended to insulate the covered positions in the event of a budget crisis.

Finally, Appellants try to contrast the Code sections at issue here

with the Insurance Code provision that was held in California Attorneys,

supra, to prohibit the furloughing of affected employees, arguing that the

Insurance Code provision exempted employees from hiring freezes and

staff cutbacks notwithstanding any other provision of law, where the

protections for military base remediation do not. AOB 27. But this

argument ultimately proves too much. The point of the single subject rule

is that the Legislature cannot, through budget legislation, change the effect

of existing laws. Whether budget legislation has a prohibited amendatory

effect on existing law simply does not depend on whether that law applies

notwithstanding any other laws.14

In sum, Appellants attempt to avoid the single subject rule problem

is unavailing. By ratifying the Governors furlough program through the

Budget Acts, the Legislature perhaps unwittingly impermissibly affected

the existing substantive protections for military base remediation positions

provided by Health and Safety Code 25353.5 and Water Code 13177.7.

Cf. Swoap, 173 Cal.App.3d at 1191, 1193 (giving effect to provision in

Budget Act that was included as a result of clerical error before finding

provision violated single subject rule). Accordingly, the furloughs of

Of course, the mandate set forth in Health and Safety Code14

25353.5(c) and Water Code 13177.7(c), which is also impermissiblymodified by the purported authorization of furloughs, does include a

similarly broad exemption: it requires the Controller and Department of

Finance to exclude covered positions and associated budget amounts when

calculating any budget or position reductions required by . . . any state

law. Health and Safety Code 25353.5(c); Water Code 13177.7(c).

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employees working on the military base projects were without lawful

authorization and should be set aside.

III. The Trial Court Correctly Held that Appellants Furloughing of

Employees in State Bargaining Units 9 and 10 Through the End

of March 2011 Exceeded the Legislatures Authorization ofReductions to Compensation that Were Proportionate to

Those of Supervisory Employees

In enacting the 2010 Budget Act, the Legislature did not authorize

the Governor to make unlimited reductions to represented employees

compensation. Instead, in Section 3.91(a) of the Act, the Legislature

delineated the scope of reductions authorized, requiring that certain item[s]

of appropriation in the Budget Act:

shall be reduced . . . to reflect reductions in employee

compensation achieved through the collective bargaining

process or through administrative actions for represented

employees and a proportionate reduction for nonrepresented

employees. . . .

S.B. 870 3.91(a) (JA, p. 2663).

It is undisputed that, in fiscal year 2010-11, nonrepresented

employees had their compensation reduced by a smaller percentage than the

percentage by which the compensation of PECG- and CAPS-represented

employees in Bargaining Units 9 and 10 was reduced. Nonrepresented

employees had their compensation cut by a total of 8.5 percent during the

fiscal year. JA, pp. 2411, 3025. Although the nonrepresented employees

were subject to three-day-per-month furloughs in August, September and

October of 2010, when the 2010 Budget Act was enacted in October, theGovernor reduced the cuts being made to these employees compensation.

Id. Employees in State Bargaining Units 9 and 10, however, remained

subject to the three-day-per-month furloughs throughout the remainder of

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2010, and into 2011. JA, p. 2411. As a result, these employees hit the mark

of an 8.5 percent reduction in compensation for the fiscal year after their

first furlough day in March 2011. JA, pp. 3025-27. Nonetheless, they were

subject to two additional furlough days in March 2011. JA, pp. 2411-12.

The trial court correctly held that Appellants exceeded the scope of

legislative authorization by imposing furloughs on employees in Bargaining

Units 9 and 10 that resulted in reductions to compensation that were not

proportionate to the reductions made to nonrepresented employees

compensation. JA, pp. 3111-13. None of Appellants arguments to the

contrary have merit.

First, Appellants argue that the trial court misapplied the plain

meaning of the term proportionate. AOB 36. But there is no legitimate

disagreement over the meaning of this term. As Appellants acknowledge,

language should be applied pursuant to its plain meaning. AOB 36; see

also Green, 42 Cal.4th at 260. The plain language meaning of

proportionate, as the trial court explained, is having the same or constant

ratio. JA p. 3111;see also Merriam Webster Collegiate Dict. (11th ed.

2003), at 997 (defining proportionate as synonymous with proportional,

which is defined as [a] corresponding in size, degree, or intensity and [b]

having the same or a constant ratio). Thus, as Appellants counsel

explained to the trial court, two items are proportionate if they maintain

thesame . . . ratio. JA, pp. 3177-78 (hearing transcript). Here, if

reductions to represented and nonrepresented employees compensation

were to maintain the same ratios, or to be reduced by the same proportions,both groups compensation had to be reduced by the same percentage.

Second, while acknowledging the plain meaning of the word

proportionate as having the same . . . ratio, Appellants protest that

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[t]his is not the same . . . as being exactly equal. AOB at 36. Appellants

point is confusing. Clearly, the trial court did not hold that the total dollar

amounts of reductions to represented and nonrepresented employees

compensation had to be exactly equal. Rather, it held consistent with

the plain meaning of the Budget Act and the term proportionate that the

ratio or percentage of the reductions to compensation had to be the same.

See JA, p. 3111.

Presumably what Appellants mean to argue, despite having conceded

that proportionate means having the same ratio, is that the term should

not be read as requiring exactly the same ratios. Or, in other words,

proportionate need not mean exactly proportionate. See AOB 39

(referring to minor variance in reductions). The problem with this

argument is that proportionate has a plain, precise and ascertainable

meaning, and Appellants offer no alternative that would meaningfully

constrain their proposed definition. Further, Appellants certainly cannot

claim they were incapable of determining when the furloughs would exact

cuts from represented employees pay that would draw them even with the

8.5 percent reduction to nonrepresented employees compensation.15

Nor is it the case, as Appellants suggest, that the requirement of

proportionate reductions contemplates an exercise of discretion. The

Indeed, the Governors actions reflect that he understood the15

Budget Act as requiring thesame percentage reductions to nonrepresentedand represented employees pay. In his Executive Order S-15-10, issued

one day after the Legislature ratified nine MOUs with represented

employees, the Governor instituted reductions to compensation that exactly

mirrored the 8.5 percent reduction made to the represented employees

compensation for the 2010-11 fiscal year. JA, p. 2412.

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proportionality requirement imposes a specific and precise duty, one that

Appellants were required to perform in a prescribed manner in obedience

to the mandate of legal authority[,] . . . without regard to [their] own

judgment or opinion. Kavanaugh v. West Sonoma County Union High

School Dist. (2003) 29 Cal.4th 911, 916 (internal quotation marks omitted).

Appellants point to the fact that the Budget Act authorized overall

reductions in employee compensation up to $1,557 million as suggesting

that the Legislature granted Appellants broad discretion to figure out how to

achieve these reductions. AOB 38-39. But Appellants theory would read

the proportionality requirement out of the Budget Act altogether. Although

the Budget Act identified potential total savings that might be obtained

through reductions to employee compensation, it also specifically

designated the manner in which those savings had to be achieved i.e.,

proportionate reductions to represented and nonrepresented employees

compensation.

The requirement of proportionality thus necessarily provides a

limitation on the total savings achieved through reductions. Indeed, it

would be inconsistentwith the scope of the Legislatures authorization if, as

Appellants suggest, the target savings number were read as the only

limitation on the permissible scope of reductions for represented and

nonrepresented employees. See AOB 38-39. As the trial court explained,

adopt[ing] [such a] structural argument would render the word

proportionate mere surplusage, which is not permitted by fundamental

rules of statutory construction. JA, pp. 3111-12 (citingBernard v. Foley(2006) 39 Cal.4th 794, 811; Sara M. v. Superior Court(2005) 26 Cal.4th

998, 1023).

Although the Legislature, in enacting the Budget Act, allowed

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Appellants leeway to reduce compensation either through collective

bargaining or through administrative actions, it imposed a clear limitation

on the scope of that authority. Once the Governors furlough program

extracted the same percentage reductions in compensation from employees

in State Bargaining Units 9 and 10 as those taken from nonrepresented

employees compensation, the furloughs should have ended. They did not,

and the continued furloughing thus exceeded the Legislatures authorization

of proportionate reductions.

Finally, Appellants argue that the legislative history of the 2010

Budget Act supports reading the term proportionate as synonymous with

similar. AOB 37. It does not. As an initial matter, as reflected above,

proportionate is not ambiguous and there is no need to turn to legislative

history. But even when that history is considered, it confirms the trial

courts reading of the Budget Act.

Relying on a single phrase by Senator Ducheny, Appellants argue

that reductions to nonrepresented employees and represented employees

compensation need only be similar, and not proportionate. AOB 37.

Although it is true that Senator Ducheny described the anticipated savings

from reductions to various employee groups employee compensation as

similar, when taken in context, it is clear the Senators remarks did not

stray from the plain meaning of the Budget Act.16

At the time the 2010 Budget Act was being debated, the State was in

Of course, a single senators comments are not sufficient to16

override plain statutory language. See Carter v. California Dept of

Veterans Affairs (2006) 38 Cal.4th 914, 929 ([A] legislators personal

understanding of a bill does not indicate the Legislatures collective intent

in enacting that bill.).

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the process of executing new memoranda of understanding (MOUs) with

SEIU for nine State bargaining units. JA, p. 2412. Thus, during the floor

debate on the Budget Act in the Senate, Senator Ducheny explained:

[The Budget Act] includes savings in employee compensation

that we are pleased, as I think we are waiting for the MOU

that will ratify additional agreements with 9 additional

bargaining units that brings the total to about 15 of our 21

bargaining units who after today, hopefully will have signed

agreements. The savings on employee compensation

recognized through this budget, recognizes those contracts

and assumes similar savings for other units and non-

represented employees, some of which if they do not have a

contract would be done by the administrative actions like the

furloughs the Governor has already imposed. So those

savings are acknowledged in this budget.

JA, p. 2677 (emphasis added).

Senator Duchenys reference to similar savings for other units and

nonrepresented employees is entirely consistent with the notion of

proportionality. In this context, anticipated savings would be similar

precisely because they would be proportionate, i.e., not the same in terms of

dollar amounts, but reflecting the same percentage reduction to employees

compensation.

Additionally, what Senator Duchenys statement does confirm is that

the Legislatures use of the word proportionate referred to the

relationship between the reductions made to represented employees

compensation and those made to non-represented employees

compensation. In order for these reductions to have the same ratio to

each other, they needed to reflect the same percentage reduction in

compensation. Therefore, the trial court reasonably and correctly held that

proportionate means having the same or constant ratio, which is

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synonymous with the same percentage. JA, p. 3111.

Appellants acted outside the scope of the Legislatures authorization

in continuing to furlough employees in Bargaining Units 9 and 10 through

the end of March 2011. The trial courts judgment setting aside this

unlawful action should be affirmed.

IV. The Trial Court Reasonably Overruled Appellants Objections

to Evidence of Reductions to Employees Compensationin Fiscal

Year 2010-2011

The trial court did not abuse its discretion by overruling Appellants

objections to PECGs evidence. A trial courts exercise of discretion in

admitting . . . evidence . . . will not be disturbed except on a showing the

trial court exercised its discretion in an arbitrary, capricious, or patently

absurd manner that resulted in a manifest miscarriage of justice. San

Lorenzo Valley Community Advocates for Responsible Educ. v. San

Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419

(quotingPeople v. Rodriguez(1999) 20 Cal.4th 1, 9-10);see also People ex

rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640

(discretion is only abused where there is a clear showing [it] exceeded the

bounds of reason, all of the circumstances being considered) (internal

quotation marks omitted);Evid. Code 353, 354.

As an initial matter, Appellants mistakenly state that the trial court

found merit to their objections to paragraphs 16, 17 and 20of the

Declaration of Theodore Toppin, PECG and CAPS Legislative Director,

which was filed together with the unions opening brief in the trial court.

AOB 40; JA, p. 2406. Instead, the trial court found that the foundational

issues raised by Appellants objections 16-17, and 20 to that declaration

had merit, but were remedied by a Supplemental Declaration filed by Mr.

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Toppin. JA, p. 3102. Appellants objections 16-17 and 20 related to17

paragraphs 28, 29 and 32 of the original Toppin declaration, each of which

described the percentage by which the compensation of employees

represented by PECG and CAPS was reduced during fiscal year 2010-2011.

JA, pp. 2952-53, 2955-56.

The Declaration of Theodore Toppin submitted with the unions

opening brief documented the reductions in compensation made to

employees in State Bargaining Units 9 and 10 in fiscal year 2010-2011, and

those made to supervisory employees represented by PECG and CAPS (i.e.,

the so-called nonrepresented employees). JA, pp. 2411-12 (27-31).

The declaration explained the size and timing of reductions made to the

compensation of employees represented by PECG and CAPS (something to

which Mr. Toppin undisputedly could testify), and then provided the

percentages by which these employees compensation had been reduced for

the fiscal year. See id.;see also JA, pp. 2406-07 (describing personal

knowledge of furloughs, Executive Orders, and their effects on employees

represented by PECG and CAPS). The declaration contained sufficient

detail to support these percentages. For example, paragraph 29 of the

declaration explained that the supervisory employees represented by PECG

and CAPS were first subject to three-day-per-month furloughs in effect in

Augus

pecg and caps v. brown furlough answer brief

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