The opinion
Filed 5/16/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
CALIFORNIA ASSOCIATION OF C066948
PROFESSIONAL SCIENTISTS,
(Super. Ct. No.
Plaintiff and Respondent, 34200980000358CUWMGDS)
v.
EDMUND G. BROWN, as Governor, etc., et al.,
Defendants and Appellants.
DEPARTMENT OF HUMAN RESOURCES, C067288
Plaintiff and Appellant, (Super. Ct. No.
34200900064854CUMCGDS)
v.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1000,
Defendant and Respondent.
1
CALIFORNIA ASSOCIATION OF C067461
PSYCHIATRIC TECHNICIANS,
(Super. Ct. No.
Plaintiff and Respondent, 34200980000356CUWMGDS)
v.
EDMUND G. BROWN, as Governor, etc., et al.,
Defendants and Appellants;
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1000,
Intervener and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County,
Timothy M. Frawley, Judge. Reversed with directions.
Joan A. Markoff, Will M. Yamada, Paul M. Starkey, Sandra L. Lusich, and
Jennifer M. Garten for Defendant and Appellant Edmund G. Brown, as Governor, etc.,
and Plaintiff, Defendant, and Appellant Department of Human Resources.
Steven B. Bassoff for Plaintiff and Respondent California Association of
Professional Scientists and California Association of Psychiatric Technicians.
Paul E. Harris III and J. Felix De La Torre, for Defendant, Intervener, and
Respondent Service Employees International Union, Local 1000.
The issue in this case is whether members of certain state bargaining units are
entitled to two paid holidays -- Lincoln‟s Birthday and Columbus Day -- which were
removed from the list of paid holidays by Government Code1 section 19853, operative
1 Further undesignated statutory references are to the Government Code.
2
February 20, 2009, in response to a fiscal emergency. Section 19853 further provides
that a conflicting memorandum of understanding (MOU) executed on or after
February 20, 2009, would be controlling. (§ 19853, subd. (g).) The employee
organizations that represent members of the affected bargaining units argue that the
bargaining units‟ expired MOU‟s, which remained in effect by operation of law under the
Ralph C. Dills Act (§§ 3512-3524; hereafter Dills Act), supersede section 19853 by
virtue of section 3517.6. (§ 3517.8, subd. (a).) We disagree. Section 19853 supersedes
the expired MOU‟s because it is a later enactment, and the MOU‟s were not executed on
or after February 20, 2009. Accordingly, we shall reverse the judgments entered in favor
of the employee organizations and remand the cases to the trial court with directions.
FACTUAL AND PROCEDURAL BACKGROUND
A. The MOU’s
Plaintiff California Association of Psychiatric Technicians (CAPT) is the
exclusive representative for State Bargaining Unit 18. For the period June 30, 2006
through July 1, 2008, CAPT had an MOU with the state concerning the terms and
conditions of employment of its bargaining unit members. That MOU identified
Lincoln‟s Birthday (February 12) and Columbus Day (the second Monday in October) as
paid holidays.
Plaintiff California Association of Professional Scientists (CAPS) is the exclusive
representative of State Bargaining Unit 10. For the period July 1, 2006, through June 30,
2008, CAPS had an MOU with the state concerning the terms and conditions of
employment of its bargaining unit members. That MOU identified Lincoln‟s Birthday
and Columbus Day as paid holidays.
Intervener Service Employees International Union, Local 1000 (SEIU) is the
exclusive representative for approximately 95,000 state workers in nine state bargaining
units -- 1, 3, 4, 11, 14, 15, 17, 20, and 21. For the period July 1, 2005, through June 30,
2008, each SEIU bargaining unit had an MOU with the state concerning the terms and
3
conditions of employment of its bargaining unit members. Each of those MOU‟s
identified Lincoln‟s Birthday and Columbus Day as paid holidays. They also contained
supersession clauses that read in pertinent part: “if any other provision of this Contract
alters or is in conflict with [certain enumerated Government Code sections, including
section 19853], the Contract shall be controlling and supersede [section 19853].”
B. The Dills Act
The Dills Act governs the collective bargaining process between certified
employee organizations and the state. (Professional Engineers in California Government
v. Schwarzenegger (2010) 50 Cal.4th 989, 1016, fn. 16 (Professional Engineers).) Two
of its provisions are at issue here: sections 3517.6 and 3517.8. Section 3517.6 was
enacted in 1977 (Stats. 1977, ch. 1159, § 4, p. 3755) and states in pertinent part: “In any
case where the provisions of [over 100 code sections, including section 19853] are in
conflict with the provisions of a memorandum of understanding, the memorandum of
understanding shall be controlling without further legislative action.” (§ 3517.6, subd.
(a)(1).)2 Section 3517.8 was enacted in 2000 (Stats. 2000, ch. 879, § 2, p. 6515) and
provides in pertinent part: “If a memorandum of understanding has expired, and the
2 Section 3517.6, subdivision (a) (1) reads in its entirety: “In any case where the
provisions of Section 70031 of the Education Code, or subdivision (i) of Section 3513, or
Section 14876, 18714, 19080.5, 19100, 19143, 19261, 19818.16, 19819.1, 19820, 19822,
19824, 19826, 19827, 19828, 19829, 19830, 19831, 19832, 19833, 19834, 19835, 19836,
19837, 19838, 19839, 19840, 19841, 19842, 19843, 19844, 19845, 19846, 19847, 19848,
19849, 19849.1, 19849.4, 19850.1, 19850.2, 19850.3, 19850.4, 19850.5, 19850.6, 19851,
19853, 19854, 19856, 19856.1, 19858.1, 19858.2, 19859, 19860, 19861, 19862, 19862.1,
19863, 19863.1, 19864, 19866, 19869, 19870, 19871, 19871.1, 19872, 19873, 19874,
19875, 19876, 19877, 19877.1, 19878, 19879, 19880, 19880.1, 19881, 19882, 19883,
19884, 19885, 19887, 19887.1, 19887.2, 19888, 19990, 19991, 19991.1, 19991.2,
19991.3, 19991.4, 19991.5, 19991.6, 19991.7, 19992, 19992.1, 19992.2, 19992.3,
19992.4, 19993, 19994.1, 19994.2, 19994.3, 19994.4, 19995, 19995.1, 19995.2, 19995.3,
19996.1, 19996.2, 19998, 19998.1, 20796, 21600, 21602, 21604, 21605, 22870, 22871,
or 22890 are in conflict with the provisions of a memorandum of understanding, the
memorandum of understanding shall be controlling without further legislative action.”
4
Governor and the recognized employee organization have not agreed to a new
memorandum of understanding and have not reached an impasse in negotiations, . . . the
parties to the agreement shall continue to give effect to the provisions of the expired
memorandum of understanding, including, but not limited to, all provisions that
supersede existing law . . . .” (§ 3517.8, subd. (a).)3
C. The Fiscal Crisis and the Legislature’s Response
When the Budget Act of 2008 (2008 Budget Act) was enacted in September 2008,
the state and national economies were in dire straits. (Professional Engineers, supra,
50 Cal.4th at p. 1001.) Shortly thereafter, the economy further deteriorated, and in
November 2008, the Department of Finance reported that the state faced a revenue
shortfall of $11.2 billion for the 2008-2009 fiscal year and a much higher budget deficit
by the end of the 2009-2010 fiscal year. (Ibid.) The Department of Finance also
cautioned that “ „[i]f no action is taken to reduce spending, increase revenues, or a
combination of both, the state will run out of cash in February and be unable to meet all
of its obligations for the rest of the year. [Citation.]‟ ” (Ibid.)
“On February 19, 2009, after extended discussion and negotiation, the Legislature
passed, and on February 20, 2009, the Governor signed, Senate Bill No. 2 (2009-2010 3d
Ex. Sess.) (Senate Bill 3X 2), which revised the 2008 Budget Act in response to the fiscal
emergency. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 2 (sometimes hereinafter revised
3 Section 3517.8, subdivision (a) states in its entirety: “If a memorandum of
understanding has expired, and the Governor and the recognized employee organization
have not agreed to a new memorandum of understanding and have not reached an
impasse in negotiations, subject to subdivision (b), the parties to the agreement shall
continue to give effect to the provisions of the expired memorandum of understanding,
including, but not limited to, all provisions that supersede existing law, any arbitration
provisions, any no strike provisions, any agreements regarding matters covered in the
Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.), and any provisions
covering fair share fee deduction consistent with Section 3515.7.”
5
2008 Budget Act) Section 36 of Senate Bill 3X 2 added section 3.90 to the original 2008
Budget Act (Stats. 2008, ch. 268). Section 3.90, subdivision (a) provides in part:
„Notwithstanding any other provision of this act, each item of appropriation in this act . . .
shall be reduced, as appropriate, to reflect a reduction in employee compensation . . . in
the total amounts of $385,762,000 from General Fund items and $285,196,000 from
items relating to other funds.‟ [T]he amount of the reduction in appropriations for
employee compensation set forth in section 3.90 reflected . . . the reductions that the
Governor proposed to achieve through [a] two-day-a-month furlough of state employees
[and the elimination of two state holidays and a revision of the method of calculating
overtime]. Section 3.90, subdivision (a) also indicated the Legislature‟s intent to make
similar reductions in employee compensation for the 2009–2010 fiscal year.”
(Professional Engineers, supra, 50 Cal.4th at pp. 1005-1006 & fn. 7, footnote omitted.)4
The Governor estimated that the elimination of two paid holidays and premium pay for
holidays worked “would result in a savings of approximately $39.4 million General Fund
in 2008-09 and $74.5 million General Fund in 2009-10.”
On February 19, 2009, the Legislature also passed, and on February 20, 2009, the
Governor also signed, Senate Bill No. 8 (2009-2010 3rd Ex. Sess.; hereafter Senate Bill
4 In Professional Engineers the issue was whether the Governor possessed the
authority to unilaterally implement a mandatory two-day-a-month furlough of
represented state employees that reduced such employees‟ hours and earnings by
approximately 10 percent to deal with the fiscal emergency faced by the state at the end
of 2008. (Professional Engineers, supra, 50 Cal.4th at p. 999.) Our Supreme Court held
that even if the Governor lacked such authority, the Legislature‟s 2009 enactment of
Senate Bill No. 2 (2009-2010 3d Ex. Sess.), which revised the 2008 Budget Act, operated
to ratify the use of the two-day-a-month furlough program as a permissible means of
achieving the reduction of state employee compensation mandated by the act. (Id. at pp.
1000, 1005.) Thus, the court concluded that the 2009 budget legislation validated the
furlough program and rejected the employee organizations‟ challenge thereto. (Id. at p.
1000.)
6
3X 8), which, among other things repealed then reenacted section 19853. (Stats. 2009,
3d Ex. Sess. 2009–2010, ch. 4, §§ 6, 7.) Prior to the passage of Senate Bill 3X 8,
Lincoln‟s Birthday and Columbus Day were among the list of paid holidays set forth in
subdivision (a) of section 19853. (Former § 19853, subd. (a).) Subdivision (b) of former
section 19853 further provided that “[i]f the provisions of subdivision (a) are in conflict
with the provisions of a memorandum of understanding . . . , the memorandum of
understanding shall be controlling without further legislative action . . . .”5 Former
section 19853 became inoperative on February 20, 2009, and was repealed as of January
1, 2010. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 4, § 6.)6
Section 19853 was reenacted on February 20, 2009. (Stats. 2009, 3d Ex. Sess.
2009–2010, ch. 4, § 7.) As relevant here, Lincoln‟s Birthday and Columbus Day were
5 Former section 19853 stated:
“(a) Except as provided in subdivision (c), all employees shall be entitled to the
following holidays: January 1, the third Monday in January, February 12, the third
Monday in February, March 31, the last Monday in May, July 4, the first Monday in
September, the second Monday in October, November 11, the day after Thanksgiving,
December 25, the day chosen by an employee pursuant to Section 19854, and every day
appointed by the Governor of this state for a public fast, thanksgiving, or holiday.
“[¶] . . . [¶]
“(b) If the provisions of subdivision (a) are in conflict with the provisions of a
memorandum of understanding . . ., the memorandum of understanding shall be
controlling without further legislative action, except that if the provisions of a
memorandum of understanding require the expenditure of funds, the provisions shall not
become effective unless approved by the Legislature in the annual Budget Act.”
6 Before former section 19853 was repealed, it was amended to provide: “(f) This
section shall become inoperative on February 1, 2009, or the date that the act amending
this section in 2009-10 Third Extraordinary Session takes effect, whichever is later, and,
as of January 1, 2010, is repealed, unless a later enacted statute, that becomes operative
on or before January 1, 2010, deletes or extends the dates on which it becomes
inoperative and is repealed.” (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 4, § 6.)
7
eliminated from the list of paid holidays set forth in subdivision (a). In addition, the
supersession language contained in former subdivision (b) was deleted, and subdivision
(g) was added, which states: “If subdivision (a) . . . is in conflict with the provisions of a
memorandum of understanding executed or amended . . . on or after [February 20,
2009], the memorandum of understanding shall be controlling without further legislative
action . . . .”7 (Italics added.) A Senate bill analysis for Senate Bill 3X 8 states that the
two holidays and premium pay were being eliminated “in order to achieve budgetary
savings.”
At the time section 19853 took effect, all of the MOU‟s at issue here had expired,
and the parties had not entered into successor MOU‟s or reached an impasse in their
negotiations. Indeed, at least 14 of the state‟s 21 bargaining units were operating under
expired MOU‟s at that time.
D. The Underlying Actions
On October 19 and 20, 2009, CAPT and CAPS, respectively, filed verified
petitions for writs of mandate and complaints for declaratory relief against then Governor
Arnold Schwarzenegger and the former Department of Personnel Administration, now
the Department of Human Resources (CalHR) (sometimes collectively referred to herein
as “the state”)8 in the trial court. The causes of action for declaratory relief sought a
determination that under section 3517.8, the state must comply with the expired MOU‟s
and allow Lincoln‟s Birthday and Columbus Day as holidays for CAPT‟s and CAPS‟s
members, while the prayer for mandamus asked for a peremptory writ ordering the state
7 Premium pay for holidays worked was also eliminated. (Compare former
§ 19853, subd. (a) with § 19853, subd. (c).)
8 The Governor or his designated representatives, here CalHR, are deemed the
“ „[s]tate employer‟ ” for purposes of bargaining and meeting and conferring in good
faith with recognized employee organizations. (§ 3513, subd. (j).)
8
to (1) comply with section 3517.8 and give effect to the expired MOU‟s and provide
Lincoln‟s Birthday and Columbus Day to CAPT and CAPS members, and (2)
compensate CAPT and CAPS members as provided in the MOU‟s if they are required to
work “on those days.” On November 24, 2009, CalHR filed a complaint against SEIU,
seeking, among other things, a declaration that section 19853 supersedes SEIU‟s expired
MOU‟s and section 3517.8. In April 2010, the trial court consolidated the three cases and
designated the CAPT action as the lead case.
In July 2010, SEIU was allowed to intervene in the CAPT action. In addition to
the arguments advanced by CAPT and CAPS, SEIU further argued that the state‟s refusal
to honor the MOU‟s holiday provisions violates the MOU‟s themselves and section
3517.6.
After oral argument, the trial court granted CAPS‟s and SEIU‟s complaints for
declaratory relief, determining that “section 3517.8 requires that [the state] give effect to
[the expired MOU‟s between the state and CAPS and SEIU] . . . until such time as the
parties reach impasse in negotiations for a new [MOU] and the state implements a
provision contrary to the parties‟ agreement in [the expired MOU‟s].” The court also
issued peremptory writs of mandate, ordering the state to comply with section 3517.8 and
give effect to the expired MOU‟s between the state and CAPS and SEIU and provide
Lincoln‟s Birthday and Columbus Day as holidays to CAPS and SEIU members and
“compensate [those] members as provided in the [MOU‟s] if they were or are required to
work on those days.” The court denied CAPT‟s request for declaratory relief because
CAPT and the state had since entered into a successor MOU, but issued a peremptory
writ of mandate, ordering the state to compensate CAPT members as provided in the
expired MOU if they were required to work on Lincoln‟s Birthday or Columbus Day
during the period February 20, 2009, through the effective date of the successor MOU.
The court denied CalHR‟s request for declaratory relief as to section 19853.
9
The trial court explained the basis of its ruling in a 12-page order. The court
concluded “that the expired MOU[‟]s supersede(d) the provisions of section 19853.” The
court observed that “the words of [section 19853] do not . . . expressly limit supersession
only to those MOU[‟]s enacted after February 20, 2009. The statute merely provides that
it can be superseded by an MOU enacted after that date. It says nothing about whether
section 19853 can (or cannot) be superseded by an MOU enacted before that date.” The
court rejected the notion that the Legislature‟s decision to narrow the supersession
language “mean[s] that the Legislature intended to permit supersession only by MOU[‟]s
executed after February 20, 2009. It simply means what it says that supersession is
permitted for at least those MOU[‟]s.” The court also found that “implied repeal of
sections 3517.6 and 3517.8 [by section 19853] is not appropriate” because “the two acts
are not clearly repugnant,” reasoning, “Both statutes permit supersession by MOU[‟]s
executed after February 20, 2009. Sections 3517.8 and 3517.6 also permit supersession
by expired MOU[‟]s executed before February 20, 2009, but this causes no irreconcilable
conflict with section 19853 because section 19853 says nothing about MOU[‟]s executed
before February 20, 2009.” The court rejected the assertion that applying section 3517.6
renders section 19853‟s supersession language superfluous, explaining that “[i]f in the
future the reference to section 19853 is removed from section 3517.6, supersession still
would be allowed under section 19853.” To the extent the application of section 3517.6
does render section 19853‟s supersession language superfluous, the trial court found “it is
reasonable to conclude that the Legislature intended it to be so” given that the two
statutes overlapped on the issue of supersession before the amendments to section
19853.9
9 In the trial court, SEIU also asserted that “retroactive application of
[section 19853] amounts to an unlawful impairment of contracts” under the contracts
clauses of the federal and state Constitutions, which prohibit the state from passing any
10
The trial court entered final judgment and issued a writ of mandate in the CAPS
action on November 29, 2010. The trial court entered final judgment in the CalHR action
on January 7, 2011. The trial court entered final judgment and issued a writ of mandate
in the CAPT action on February 10, 2011. The state timely appealed from those
judgments, and we consolidated those appeals on March 23, 2011.
DISCUSSION
The state contends “[t]he trial court erred when it found that the [employee
organizations‟] expired MOU‟s, which were executed prior to February 20, 2009,
superseded section 19853.” According to the state, “[t]he trial court‟s interpretation of
section 19853 . . . contradicts the plain language of the statute [and] contravenes the
legislative history to effectuate an immediate cost savings by eliminating the holidays and
premium pay.” We agree.
As with all matters of statutory construction, our review is de novo. (California
Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.)
“ „Under well-established rules of statutory construction, we must ascertain the intent of
the drafters so as to effectuate the purpose of the law. [Citation.] Because the statutory
language is generally the most reliable indicator of legislative intent, we first examine the
words themselves, giving them their usual and ordinary meaning and construing them in
context.‟ [Citation.]” (Mejia v. Reed (2003) 31 Cal.4th 657, 663 (Mejia).) “When the
plain meaning of the statutory text is insufficient to resolve the question of its
interpretation, the courts may turn to rules or maxims of construction „which serve as aids
in the sense that they express familiar insights about conventional language usage.‟
[Citation.] Courts also look to the legislative history of the enactment. „Both the
law impairing the obligation of contracts. (U.S. Const., art. I, § 10; Cal. Const., art. I,
§ 9.) The trial court rejected SEIU‟s claim, and SEIU has not challenged the trial court‟s
ruling.
11
legislative history of the statute and the wider historical circumstances of its enactment
may be considered in ascertaining the legislative intent.‟ [Citation.]” (Ibid.)
Where reasonably possible, a court must harmonize statutes, reconcile seeming
inconsistencies in them, and construe them to give force and effect to all of their
provisions. (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012)
55 Cal.4th 783, 805.) If inconsistent statutes cannot otherwise be reconciled, a specific
provision will prevail over a conflicting general one. (In re Greg. F. (2012) 55 Cal.4th
403, 407.) Where conflicting statutes cannot be reconciled, later enactments supersede
earlier ones. (Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310; see
also People v. Moody (2002) 96 Cal.App.4th 987, 993.)
Here, all parties agree that on February 20, 2009, when section 19853 was
reenacted and Lincoln‟s Birthday and Columbus Day were eliminated from the list of
paid holidays to which state employees are entitled, the terms and conditions of
employment of the employee organizations‟ members were governed by applicable
MOU‟s. Although each of those MOU‟s had expired, under section 3517.8, the terms of
the expired MOU‟s remained in effect because the parties had not negotiated new MOU‟s
or reached an impasse in their negotiations. (§ 3517.8, subd. (a).)
Each of the expired MOU‟s identified Lincoln‟s Birthday and Columbus Day as
paid holidays. Moreover, the MOU‟s further provided that if any of the provisions of the
MOU conflict with various statutory provisions, including section 19853, the MOU
would control and supersede section 19853. Thus, a conflict exists between section
19853, subdivision (a), on the one hand, and the MOU‟s on the other. The question here
is how to resolve it.
As set forth above, subdivision (g) of section 19853 provides that if the list of paid
holidays set forth in “subdivision (a) . . . is in conflict with the provisions of a
memorandum of understanding executed or amended . . . on or after [February 20, 2009],
the memorandum of understanding shall be controlling without further legislative
12
action . . . .” The state contends that “[o]n its face, section 19853 limits supersession to
MOU‟s executed after February 20, 2009.” SEIU responds that “[w]hile the amendment
to section 19853 allows supersession by MOU[‟]s executed after February 19, 2009, the
amendment did not prohibit supersession of MOU[‟]s executed before then.
[S]upersession of section 19853 is authorized by other legal authority[, namely the Dills
Act,] which the Legislature could have amended to avoid supersession but chose to leave
intact.” Although SEIU is correct that subdivision (g) of section 19853 does not literally
state that only MOU‟s executed or amended on or after February 20, 2009, supersede
section 19853 in the event of a conflict, that, as we explain below, is a necessary
corollary to the Legislature‟s decision to narrow section 19853‟s supersession language.
Indeed, if MOU‟s executed prior to February 20, 2009, also superseded section 19853,
subdivision (a), it would undermine the Legislature‟s purpose in eliminating the two paid
holidays and render the Legislature‟s changes to the supersession language nugatory.
“Under the rules governing statutory construction, when the Legislature enacts an
amendment, we presume that this „ “indicates that it thereby intended to change the
original act by creating a new right or withdrawing an existing one.” ‟ [Citation.]
„ “Therefore, any material change in the language of the original act is presumed to
indicate a change in legal rights.” ‟ [Citations.]” (Garrett v. Young (2003) 109
Cal.App.4th 1393, 1404–1405.) As set forth above, under former section 19853, anytime
the provisions of subdivision (a) conflicted with provisions of an MOU, the MOU
controlled. (Former § 19853, subd. (b).) In February 2009, the Legislature repealed then
reenacted section 19853, which provides that if subdivision (a) is in conflict with the
provisions of an MOU “executed or amended . . . on or after [February 20, 2009],” the
MOU controls. (§ 19853, subd. (g), italics added.) If we construe subdivision (g) of
section 19853 as not precluding pre-existing MOU‟s (MOU‟s executed or amended prior
to February 20, 2009) from superseding section 19853 and apply section 3517.6 to
pre-existing MOU‟s as the trial court did below, then the amendment to the supersession
13
provision in section 19853 would have no effect. Not only would MOU‟s enacted on or
after February 20, 2009, supersede section 19853, subdivision (a) (§ 19853, subd. (g)),
but so would those enacted prior thereto (§ 3517.6), including those that had expired and
had yet to be renegotiated (§ 3517.8). In other words, as was the case before section
19853 was added in February 2009, anytime the holidays listed in subdivision (a) of
section 19853 conflict with provisions of an MOU, the MOU would control. We cannot
presume that the Legislature, in narrowing section 19853‟s suppression language,
“engaged in an idle act or enacted a superfluous statutory provision.” (California
Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627,
634.) Accordingly, we reject the trial court‟s implicit finding that despite having
narrowed section 19853‟s suppression language, the Legislature intended no change in
the law. Rather, we interpret section 19853, subdivision (g), as providing that only
MOU‟s enacted or amended on or after February 20, 2009, supersede section 19853.
Such an interpretation is consistent with the rule of statutory construction
expressio unius est exlusio alterius, or “ „to express or include one thing implies the
exclusion of the other.‟ ” (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th
381, 389, quoting Black‟s Law Dict. (8th ed. 2004) p. 620, col. 2.) Here, the Legislature
expressly identified MOU‟s executed or amended on or after February 20, 2009, as
superseding section 19853 in the event of a conflict. If the Legislature had intended for
all MOU‟s to control in the event of a conflict with section 19853, there would have be
no need to amend the supersession language.
Our interpretation also is supported by the legislative history and the wider
historical circumstances of section 19853‟s reenactment. (See Mejia, supra, 31 Cal.4th at
p. 663.) Section 19853‟s reenactment was part of a comprehensive budget plan passed in
response to a fiscal emergency. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 4, § 7.) At the
time section 19853 was reenacted, the state faced a $11.2 billion budget deficit in fiscal
year 2008-2009 and a much higher deficit by the end of the 2009-2010 fiscal year.
14
(Professional Engineers, supra, 50 Cal.4th at p. 1001.) Moreover, the Department of
Finance warned that the state would run out of cash in February 2009 if immediate action
was not taken. (Ibid.) The Legislature responded by passing a comprehensive budget
plan, which included a two-day-a-month furlough program and the elimination of
Lincoln‟s Birthday and Columbus Day as paid holidays and premium pay. (Id. at pp.
1005-1006, & fn. 7, 1046-1047.) The Governor estimated that the elimination of the two
paid holidays and premium pay would “result in a savings of approximately $39.4 million
General Fund in 2008-09 and $74.5 million General Fund in 2009-10.” A Senate bill
analysis confirms that the elimination of two paid holidays and premium pay was
intended to result in budgetary savings. The trial court‟s interpretation, which exempted
the majority of then existing MOU‟s from section 19853, ignores this legislative history
and nullifies the immediate cost savings sought by the Governor and Legislature. Under
the trial court‟s interpretation, only those MOU‟s executed or amended in the future
would be affected by the changes to section 19853, thereby significantly reducing any
immediate cost savings.
SEIU argues that the state “failed to provide any evidence that the estimated
[savings] included savings derived by eliminating the holidays and premium pay to SEIU
bargaining units. [¶] In fact, [the state] provide[d] no evidence to rule out the possibility
that the savings came solely from applying the changes to employees not covered under
any MOU (managers, supervisors, confidential employees, etc.) and/or those employees
working under the other 11 labor agreements.” The state responds that “the record
demonstrates that the cost-savings achieved by eliminating the holidays results from
eliminating the holidays for all state employees,” including the 95,000 state workers
SEIU represents. Among other things, the state points to evidence that at the time section
19853 was reenacted, at least 14 the state‟s 21 bargaining units were operating under
expired MOU‟s and persuasively argues that “[a]n interpretation that section 19853 can
be superseded by expired MOU‟s would mean that the vast majority of union contracts
15
would have superseded section 19853, and the cost savings anticipated in the Senate
Floor Bill Analysis would not exist.” Having reviewed the legislative history and
considered the historical context in which section 19853 was reenacted, we have no doubt
that the Legislature eliminated the two holidays and premium pay in an effort to address
an immediate fiscal crisis. Accordingly, we find it inconceivable that the Legislature
intended to exempt the vast majority of the state‟s bargaining units from those provisions.
Having interpreted section 19853 as limiting supersession to MOU‟s executed or
amended on or after February 20, 2009, we are left with a conflict between it and section
3517.6, which provides that anytime there is a conflict between section 19853 and an
MOU, the MOU controls. (§ 3517.6, subd. (a)(1).) As we shall explain, there is no
rational basis for reconciling the two statutes, and thus conclude that section 19853,
subdivision (g), supersedes section 3517.6, subdivision (a)(1), as a later enactment.
The employee organizations claim and the trial court found that section 19853,
subdivision (g), on the one hand, and sections 3517.6 and 3517.8 on the other, could be
harmonized by interpreting section 19853, subdivision (g), as applying to MOU‟s
executed or amended on or after February 20, 2009, and section 3517.6 as applying to
MOU‟s executed or amended prior thereto. As detailed above, rather than harmonize the
statutes, such an interpretation renders section 19853, subdivision (g), nugatory and
reduces the Legislature‟s changes to section 19853‟s suppression language to an idle act.
Before we address sections 19853 and 3517.6, we pause to note that we agree with
the trial court‟s determination that sections 19853 and 3517.8 can be harmonized. Under
section 3517.8, the provisions of an expired MOU, including those that “supersede
existing law,” continue in effect until the state and the employee organization agree to a
successor MOU or reach an impasse in negotiations. (Id., subd. (a).) Thus, as previously
discussed, the provisions of the expired MOU‟s remained in effect at the time the
Legislature enacted and the Governor signed the bill amending, repealing, and adding
section 19853. It does not follow, however, that the terms of those MOU‟s supersede
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section 19853. By reenacting section 19853, the Legislature effectively altered the terms
of the MOU‟s, including the holiday provisions contained in all of the expired MOU‟s
and the suppression provisions contained in the SEIU‟s MOU‟s. SEIU challenged the
Legislature‟s ability to do so in the trial court and lost, and it has not challenged the trial
court‟s ruling. (Ante, fn. 9.) Moreover, “[w]e find nothing in the language or legislative
history of [section 3517.8] to indicate the Legislature intended to limit its authority to
legislate changes in terms and conditions of employment during the period when [CalHR]
is bargaining with a recognized employee organization following the expiration of an
MOU.” (Stationary Engineers Local 39 (2009) PERB Dec. No. 2085-S [34 PERC ¶ 24,
p. 97], cited with approval in Professional Engineers, supra, 50 Cal.4th at 1048.)
Unlike sections 19853 and 3517.8, there is no rational way to harmonize sections
19853 and section 3517.6. As interpreted here, subdivision (g) of section 19853 provides
that only MOU‟s executed or amended on or after February 20, 2009, supersede
subdivision (a) of section 19853 in the event of a conflict. Conversely, under section
3517.6, anytime there is a conflict between an MOU and section 19853, the MOU
prevails. Where conflicting statutes cannot be reconciled, later enactments supersede
earlier ones. (Collection Bureau of San Jose v. Rumsey, supra 24 Cal.4th at p. 310;
People v. Moody, supra, 96 Cal.App.at p. 993.) Section 19853 therefore prevails.
As detailed above, attempting to harmonize the two statutes, as the trial court did
below, renders subdivision (g) of section 19853 nugatory -- a result that should be
avoided if possible. (See Los Angeles County Dependency Attorneys, Inc. v. Department
of General Services (2008) 161 Cal.App.4th 230, 237.) Also, as previously discussed,
such an interpretation reduces the Legislature‟s narrowing of the supersession language
to an idle act and undermines its purpose in eliminating the two holidays and premium
pay. Moreover, our conclusion is consistent with the principle of reconciling statutes by
giving a more specific provision precedence over a more general provision. (In re Greg
F. supra, 55 Cal.4th at p. 407.) Section 3517.6, subdivision (a), generally governs
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conflicts between MOU‟s and over 100 statutes. Section 19853, subdivision (g), governs
conflicts between MOU‟s and section 19853.
For all the reasons set forth above, we conclude that section 19853 supersedes the
expired MOU‟s at issue here and that the trial court erred in concluding otherwise.
DISPOSITION
The judgments granting CAPS‟s, CAPT‟s, and SEIU‟s requests for declaratory
relief and petitions for writs of mandate are hereby reversed. The judgment denying
CalHR‟s request for declaratory relief as to section 19853 is reversed and affirmed in all
other respects. The cases are remanded to the trial court with directions to (1) deny
declaratory relief and vacate its writs issued in favor of CAPS, CAPT, and SEIU, and
instead to issue orders denying such relief and the petitions, and (2) grant declaratory
relief to CalHR as to section 19853, stating that the list of holidays set forth in
subdivision (a) of section 19853 supersedes the expired MOU‟s between the state and
members of State Bargaining Units 1, 3, 4, 11, 14, 15, 17, 20 and 21.
The state shall recover its costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(1), (2).)
BLEASE , Acting P. J.
We concur:
HULL , J.
ROBIE , J.
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