# Butt v. State of California

> California Supreme Court · December 31, 1992 · 4 Cal. 4th 668

URL: https://www.frixlaw.com/law-library/cases/9561441

## Case

- **Full name:** THOMAS K. BUTT Et Al., Plaintiffs and Respondents, v. THE STATE OF CALIFORNIA Et Al., Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** December 31, 1992
- **Citations:** 4 Cal. 4th 668; 15 Cal. Rptr. 2d 480; 93 Daily Journal DAR 152; 842 P.2d 1240; 93 Cal. Daily Op. Serv. 39; 1992 Cal. LEXIS 6139
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennard
- **Judges:** Baxter, Lucas, Mosk, Kennard
- **Cited by:** 185 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9561441

## How later opinions describe it (automated extraction)

- stating that while "[school] districts are separate political entities for some purposes . . . the existence of th[e] local-district system has not prevented recognition that the State itself has broad responsibility to ensure basic educational equality under the California Co…
- stating that while ''[school] districts are separate political entities for some purposes ... the existence of th[e] local-district system has not prevented recognition that the State itself has broad responsibility to ensure basic educational equality under the California Con…
- stating that while "[school] districts are separate political entities for some purposes ... the existence of th[e] local-district system has not prevented recognition that the State itself has broad responsibility to ensure basic educational equality under the California Cons…

## Opinion text

KENNARD, J., Concurring and Dissenting.
I agree with the majority that the threatened closure of the schools of the Richmond Unified School District (District) was such an extreme departure from prevailing educational standards as to infringe on the students’ state constitutional rights to basic educational equality, requiring the State of California (State) to intervene to protect those rights.
I do not agree, however, that the trial court violated the separation of powers doctrine by ordering that emergency loan funds be made available from an unused special appropriation to the Department of Education and an unused emergency appropriation to the Oakland Unified School District (OUSD). The majority has, in effect, declared that although the students’ right to education is fundamental, no means may exist by which our judicial system can enforce that right. In my view, the trial court’s order was an appropriate and pragmatic resolution of a difficult case under extreme pressure. Because the Legislature had already appropriated the funds in question for educational purposes reasonably related to the District’s needs, I discern no constitutional violation, and would affirm the trial court’s orders in their entirety.
I
On April 17, 1991, the District, facing a $23 million budgetary shortfall, announced its schools would close on May 1, 1991, rather than as scheduled on June 14, 1991. Parents of students in the District’s schools then filed a class action against the State and the District’s board of education, alleging the closure would deprive children of their fundamental right to education and would violate equal protection guarantees. The trial court granted plaintiffs’ motion for a preliminary injunction, finding that “education is a fundamental right in California [and] unless injunctive relief is granted children in the District will be denied six weeks of instruction that will be provided to every other child in the State.” The trial court ordered the State, the Superintendent of Public Instruction (Superintendent), and the State Controller “to ensure that the students in the District are not deprived of six *707 weeks of public education while others within the state are not so deprived.” The trial court added that “how these defendants accomplish this is up to the discretion of the defendants.”
Thereafter, the Superintendent and the Controller proposed a plan to keep the schools open. They proposed that $19 million in unspent funds from two educational programs—from the Greater Avenues for Independence (GAIN) program and from an appropriation to the OUSD—be loaned to the District. After an evidentiary hearing, the trial court ordered the State Controller to disburse an emergency loan to the District from these funds. This court denied the State’s motion to stay the order pending appeal, but transferred the case here.
II
The majority holds that the trial court’s remedial order violated the doctrine of separation of powers. Essentially, the majority reasons that by ordering that the unused funds be loaned to the District, the trial court impermissibly engaged in the appropriation of funds, an area of exclusive legislative concern.
The majority’s conclusion originates from a fundamental misunderstanding of the separation of powers doctrine. Implicit in the majority’s discussion is the assumption that under our tripartite scheme of government, particular powers can be definitively categorized as belonging to one of the three branches, and that these powers can never be exercised by a branch other than the designated branch. Thus, under the majority’s approach, appropriation is exclusively a legislative function, and unless the Legislature has either appropriated funds for a specific purpose, or made a “catchall” appropriation under which a specific use of funds may fall, funds are simply not available for any purpose, no matter what rights are at stake.
This formalistic interpretation of the separation of powers concept is, however, contrary to modem understanding. The opinions of the United States Supreme Court, although not binding on this court in interpreting the separation of powers principles of the California Constitution, supply a persuasive body of case authority. Just as our state Constitution provides for the separation of the powers of government into three branches (Cal. Const., art. Ill, § 3), so does the federal Constitution segregate the branches of government (U.S. Const., art. I, § 1, art. II, § 1, & art. Ill, § 1).
The United States Supreme Court has “squarely rejected the argument that the Constitution contemplates a complete division of authority between the *708 three branches.” (Nixon v. Administrator of General Services (1977) 433 U.S. 425, 443 [ 53 L.Ed.2d 867, 891 , 97 S.Ct. 2777 ].) Rather than reading the federal Constitution as “ ‘requiring three airtight departments of government,’ ” the high court has adopted a “pragmatic, flexible approach.” (Id. at pp. 443, 442 [53 L.Ed.2d at pp. 891, 890-891.) This approach, the court has explained, is supported by historical understanding. James Madison, one of the principal architects of the United States Constitution, wrote that the concept of separation of powers “ ‘d[oes] not mean that these departments ought to have no partial agency in, or no control over the acts of each other,’ ” but instead that “ ‘where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.’ ” (J. Madison, The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (original italics), quoted in Mistretta v. United States (1989) 488 U.S. 361, 380-381 [ 102 L.Ed.2d 714, 735-736 , 109 S.Ct. 647 ].) Thus, the basic purpose of the separation of powers is to guard against the concentration of power in the hands of one branch, but it is important to distinguish “partial agency” from those aggrandizements of power that pose genuine threats to the constitutional scheme.
The pragmatic and flexible approach favored by the nation’s highest court is also appropriate because, in a society growing ever more complex, the practical requirements of efficient government action by each of the three branches must be considered. “ ‘While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.’ ” (Mistretta v. United States, supra, 488 U.S. at p. 381 [ 102 L.Ed.2d at p. 736 ], quoting Youngstown Sheet & Tube Co. v. Sawyer (1952) 343 U.S. 579, 635 [ 96 L.Ed. 1153, 1199 , 72 S.Ct. 863 , 26 A.L.R.2d 1378 ] (conc. opn. of Jackson, J.).) In contemporary society, concerns about the workability of government are especially weighty.
Thus, the high court has not evolved a rigid classification of governmental powers as belonging exclusively to one branch or another. Instead, the court has stated that “the proper inquiry focuses on the extent to which [the act complained of] prevents [one of the three branches] from accomplishing its constitutionally assigned functions.” (Nixon v. Administrator of General Services, supra, 433 U.S. at p. 443 [ 53 L.Ed.2d at p. 891 ]; Mistretta v. United States, supra, 488 U.S. at p. 383 [102 L.Ed.2d at pp. 737-738].) If the “potential for disruption is present,” the court must then “determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority” of the branch whose action is challenged. (Nixon v. Administrator of General Services, supra, 433 U.S. at p. 443 [ 53 *709 L.Ed.2d at p. 891 ]; Mistretta v. United States, supra, 488 U.S. at p. 383, fn. 13 [ 102 L.Ed.2d at p. 737 ].)
This court has expressed a similar understanding. We have recognized that the purpose of the doctrine of separation of powers “is to prevent one branch of government from exercising the complete power constitutionally vested in another [citation]; it is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch. [Citation.]” (Younger v. Superior Court (1978) 21 Cal.3d 102, 117 [ 145 Cal.Rptr. 674 , 577 P.2d 1014 ] [original italics].)
More recently, this court reiterated that the separation of powers doctrine “ ‘has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another.’ . . . ‘From the beginning, each branch has exercised all three kinds of powers.’ ” (Davis v. Municipal Court (1988) 46 Cal.3d 64, 76 [ 249 Cal.Rptr. 300 , 757 P.2d 11 ] [citations and italics omitted].)
Ill
A line of cases from California courts has established the principle that a court does not violate the separation of powers doctrine when it orders appropriate expenditures from already existing funds, if such funds are reasonably available for the expenditures in question. (Mandel v. Myers (1981) 29 Cal.3d 531, 540 [ 174 Cal.Rptr. 841 , 629 P.2d 935 ]; Long Beach Unified Sch. Dist. v. State of California (1990) 225 Cal.App.3d 155, 180-181 [ 275 Cal.Rptr. 449 ]; Carmel Valley Fire Protection Dist. v. State of California (1987) 190 Cal.App.3d 521, 538-539 [ 234 Cal.Rptr. 795 ]; Committee to Defend Reproductive Rights v. Cory (1982) 132 Cal.App.3d 852, 856 [ 183 Cal.Rptr. 475 ].) The precise question in this case is whether funds can be considered “reasonably available” when they are not made part of a “catchall” appropriation under which the specific use of the funds may fall. The majority concludes that unless the funds are part of a “catchall” appropriation, they are not reasonably available. 1
I would announce no such categorical rule. In my view, the proper inquiry is that set forth by the United States Supreme Court in Nixon v. Administrator of General Services, supra, 433 U.S. 425 and Mistretta v. United States, *710 supra, 488 U.S. 361 : To what extent does the challenged act of one branch interfere with another branch’s performance of its constitutionally assigned functions? If there is some potential disruption, the court must then determine whether the challenged act is “justified by an overriding need to promote objectives within the constitutional authority” of the branch whose action is challenged. (Nixon v. Administrator of General Services, supra, at p. 443 [ 53 L.Ed.2d at p. 891 ]; Mistretta v. United States, supra, at p. 383, fn. 13 [ 102 L.Ed.2d at p. 737 ].)
Applying the principles followed by the high court in Nixon v. Administrator of General Services, supra, 433 U.S. 425 and Mistretta v. United States, supra, 488 U.S. 361 , and by this court in cases such as Younger v. Superior Court, supra, 21 Cal. 3d 102 and Davis v. Municipal Court, supra, 46 Cal.3d 64 ,1 conclude that the trial court’s order authorizing the Controller to disburse funds from the GAIN and OUSD accounts as an emergency loan to the District to assure the District’s schools remained open did pose a potential for disruption of a function of the legislative branch.
The degree of potential disruption, however, is not great. As the trial court concluded, the fiinds that were the source of the emergency loan were appropriated for purposes reasonably related to the educational purposes served by the District.
The OUSD loan funds were appropriated by the Legislature for the precise purpose for which they were employed here—to alleviate a fiscal crisis in a local school district and prevent disruption of an ongoing educational program. (See Stats. 1989, ch. 1438, § 1.) Moreover, the trial court had before it an application for leave to intervene from the OUSD itself, in which the OUSD stated that the threatened closure of the nearby District “would place substantial and difficult burdens on OUSD as displaced Richmond students seek admission to Oakland Schools,” that would be “extremely costly and disruptive” to the operation of the Oakland schools. The emergency loan fund for the OUSD was intended by the Legislature to avoid disruption of the educational program at the Oakland schools, and the trial court’s order furthered, rather than defeated, that valid legislative purpose.
The GAIN program was enacted to address the problem of teenage parenting, basic educational deficiencies, and long-term welfare dependency. Specifically, GAIN was intended to “[p]rovide the education and training services needed by teenage parents to help them earn a high school diploma or its equivalent,” and to “[l]ink teenagers to other needed health and social services.” (Welf. & Inst. Code, § 11330, subd. (c).) The purpose of the particular appropriation to the Department of Education at issue in this case *711 was solely to meet educational needs, and not to provide health and social services. (Stats. 1989, ch. 93, § 22.00.) This goal is served by keeping the District’s schools open. The trial court had before it uncontradicted evidence that a large number of the students in the District came from low-income families, many of whom were welfare-dependent. The court could rationally conclude that the otherwise unused GAIN funds were reasonably available to meet the basic educational needs of the District’s students, a significant portion of whom were in the welfare-dependent population the GAIN program was targeted to assist. Under the circumstances, the funds were ordered to be used for a purpose reasonably congruent with the statutory purpose. 2
Thus, because the trial court authorized the OUSD and GAIN funds to be used for a purpose that was reasonably related to the purposes for which the funds were appropriated, any infringement on the legislative function is not substantial. By contrast, we are not faced with a situation in which a trial court has ordered that funds appropriated for one purpose be used for some entirely unrelated purpose; nor are we confronted with a trial court order that funds actually in use for one program be diverted to another. It is vital that *712 trial courts take care to minimize any impingement on legislative prerogatives. But the trial court in this case did use the least intrusive means available to it to ensure the students’ rights. 3
As discussed earlier, if there is some cognizable interference with the functions of another branch, the reviewing court must then determine whether the act is “justified by an overriding need to promote objectives within the constitutional authority” of the branch whose action is challenged. (Nixon v. Administrator of General Services, supra, 433 U.S. at p. 443 [ 53 L.Ed.2d at p. 891 ]; Mistretta v. United States, supra, 488 U.S. at p. 383, fn. 13 [ 102 L.Ed.2d at p. 737 ].) In my view, here the trial court’s order was so justified.
The objective that the trial court sought to achieve by its orders in this case—to assure the protection of the fundamental rights of the District’s students—was unquestionably within its constitutional authority. As this court has made clear on previous occasions, and as the majority reaffirms today, education is a fundamental right under the California Constitution. (Serrano v. Priest (1971) 5 Cal.3d 584, 608-609 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ]; Serrano v. Priest (1976) 18 Cal.3d 728, 766 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ].)
Moreover, the court, in acting to protect the students’ rights to education, had no practical alternative to the remedial order it issued. It was the court’s *713 duty to act. As the United States Supreme Court has held, “a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.” (Reynolds v. Sims (1964) 377 U.S. 533, 566 [ 12 L.Ed.2d 506, 530 , 84 S.Ct. 1362 ].)
When the other branches of government have failed to act, the courts have not flinched from their duty to fashion appropriate remedies when necessary to guarantee constitutional rights to the people of this state. Thus, in Wilson v. Eu (1991) 54 Cal.3d 471, 473 [ 286 Cal.Rptr. 280 , 816 P.2d 1306 ], we held that, although reapportionment is primarily a matter for the legislative branch, when that branch has failed to act and electoral rights will be irretrievably lost if no action is taken, “we must proceed forthwith to draft such [reapportionment] plans.” And in Crawford v. Board of Education (1976) 17 Cal.3d 280, 307 [ 130 Cal.Rptr. 724 , 551 P.2d 28 ], we held that when a recalcitrant school board failed to act to cure the harmful consequences of school segregation, the trial court could exercise “broad equitable powers” to frame a remedy that would assure the students’ basic rights. (Accord, e.g., Swann v. Board of Education (1971) 402 U.S. 1, 15 [ 28 L.Ed.2d 554, 566 , 91 S.Ct. 1267 ]; see Assembly v. Deukmejian (1982) 30 Cal.3d 638, 659 [ 180 Cal.Rptr. 297 , 639 P.2d 939 ]; Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 779 [ 269 Cal.Rptr. 796 ].)
No sound reason exists to hold that although some fundamental rights demand judicial protection when they are endangered because the other branches of government have failed to act, other rights, equally fundamental, do not. Yet that is the consequence of the majority’s holding in this case that the trial court erred in ordering that an emergency loan be made to the District.
The practical consequences of the majority’s holding should not be overlooked. In an era of fiscal constraint and uncertainty for local governments, including school districts, we cannot assume that the District’s problems will prove to be unique. If another school district experiences financial difficulties and the other branches of government fail to act, parents may indeed bring a lawsuit to protect their children’s right to education. Under today’s decision, the trial court will declare that the children have a constitutional right to basic educational equality, and that the State bears responsibility for assuring this right is not denied. The court may then announce that no means *714 exist by which it can enforce that right. And the doors to the schoolhouse will close.
I would affirm the orders of the trial court in their entirety.
The majority purports to reaffirm the rule of these cases, but in fact undermines it. The “catchall" appropriation exception to the majority’s rule could easily be eliminated if the Legislature took the time to label more specifically the purpose of each appropriation in a particular area. If the Legislature did so, there would be no possible remedy for the failure to fund any program, no matter how essential.
The majority asserts that this opinion “urges abandonment” of the rule of Mandel v. Myers, supra, 29 Cal.3d 531 (Mandel). This is incorrect.
In Mandel, supra, 29 Cal.3d 531 , this court held that the separation of powers doctrine does not prevent the courts from ordering appropriate expenditures from already existing funds when such funds are “reasonably available for the expenditures in question . . . .” (Id. at p. 542.) There, the court found that certain “catchall” funds were reasonably available for the expenditures in question, the payment of attorney fees in a case enforcing constitutional rights. But nothing in Mandel indicated that the only funds that might ever be reasonably available in any case were “catchall” funds. And, as later cases made clear, Mandel's test of “reasonable availability” encompasses unused funds that have been appropriated for purposes closely related to the purposes for which they are sought to be expended. (Long Beach Unified Sch. Dist. v. State of California, supra, 225 Cal.App.3d at p. 181 ; Carmel Valley Fire Protection Dist. v. State of California, supra, 190 Cal.App.3d at p. 541 .)
In this case, as my analysis has demonstrated, the OUSD and GAIN funds were appropriated for purposes reasonably and closely related to the purpose for which the trial court ordered them to be used. Thus, Mandel and its progeny were not violated. The analysis in this opinion is entirely consistent with both the Mandel line of cases, and the cases from the United States Supreme Court and this court that more fully and generally articulate the doctrine of separation of powers. Mandel and its progeny represent an area of specific application of general separation of powers principles; properly understood, there is no disjunction between the Mandel line of cases and cases such as Nixon v. Administrator of General Services, supra, 433 U.S. 425 , and Mistretta v. United States, supra, 488 U.S. 361 , that set forth a principled and coherent view of the separation of powers doctrine.
Thus, the majority’s accusation that the approach to separation of powers questions set forth in this opinion, which is the same approach employed by our nation’s highest court, would “stand the separation of powers clause on its head,” is meritless.
At the hearing on the preliminary injunction, an official of the Department of Education testified without contradiction that there were two sources from which department funds were available that could be employed to assist the District—the OUSD fund and the GAIN fund. No other funds were identified as available.
The funds appropriated to the Department of Education for the general support of elementary and secondary schools are not placed in a “catchall” fund subject to the discretion of Department of Education officials. Instead, under the Education Code, virtually all sums transferred from the state’s general fund to the Department of Education for the general support of elementary and secondary education are transferred subject to a strict formula under which each local district is entitled to an amount computed on the basis of average daily student attendance. (Ed. Code, § 14000 et seq., § 46000 et seq.) No state official appears to have any discretion to vary the legislatively mandated allocation of funds.
My research reveals that the only funds that might have been considered reasonably available to aid the District under the majority’s criteria at the time of the trial court’s decision in this case were certain emergency funds under control of the Director of Finance. (Stats. 1990, ch. 467, § 2.00.) But there is nothing in the record to show that these funds had not been used for some other emergency purpose. Even assuming that none of these funds had been committed to some other use, however, the funds would have been grossly inadequate to meet the District’s needs in any event. The total amount of funds available to the Director of Finance to meet all the emergency needs of the State under the then-current budget was $7 million. (Ibid.) As we have seen, the District faced a $23 million budget shortfall.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9561441. Public record. Not legal advice.