Mandel v. Myers

RICHARDSON, J.

I respectfully dissent. Chief Justice Harlan Fiske Stone once cautioned judges that “While unconstitutional exercise of power by the executive and legislative branches is subject to judicial restraint, the only check upon our own exercise of power is our own sense *553 of self-restraint.” (Peter’s Quotations (1977) p. 290.) The majority today rejects this sage observation and, trampling on the venerable doctrine of separation of powers, deliberately invades the exclusive authority of the Legislature in the appropriation of public funds.

Article III, section 3, of our California Constitution contains the following fundamental principle of democratic government: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Italics added.) Acknowledging this constitutional mandate, the majority concedes that “a court may neither directly compel the Legislature to appropriate funds nor order the payment of funds that have not been appropriated by the Legislature. [Citations.]” (Ante, p. 539) The problem is that although the majority bows to the principle, it does not comply with it.

The applicable law on the point has long been settled in California. One hundred twenty-three years ago we expressed the controlling rule in this manner: “[T]he power to collect and appropriate the revenue of the state is one peculiarly within the discretion of the Legislature. . .. when the Legislature fails to make an appropriation, we cannot remedy that evil. It is a discretion specially confided by the Constitution to the body possessing the power of taxation.” (Myers v. English (1858) 9 Cal. 341, 349 , italics added.) This has been the clear and unchallenged California law ever since. Although it is aged, it is neither rusty nor obsolete because it is founded on constitutional principles. A recent expression of the same elementary proposition appears in California State Employees Assn. v. Flournoy (1973) 32 Cal.App.3d 219, 234 [ 108 Cal.Rptr. 251 ] which used these words: “Since appropriation of tax revenues is a legislative power (Cal. Const., art. IV, § 1) the authority to appropriate monies resides with the California State Legislature under the familiar doctrine of separation of governmental powers.... ”

My colleagues of the majority insist, however, that because the plaintiffs claim for her attorney’s fees has been reduced to a judgment, the interest of the judiciary in enforcing its judgments is invoked and the separation of powers principle is thereby rendered inapplicable. Not so. California law for years has been directly contrary. (Myers v. English, supra, 9 Cal. 341; Westinghouse Electric Co. v. Chambers (1915) 169 Cal. 131, 135 [ 145 P. 1025 ]; California State Employees Assn. v. State of California (1973) 32 Cal.App.3d 103, 108-109 [ 108 Cal.Rptr. 251 ].) The rendition of a judgment does not change the constitutional posture *554 of this case. We examined and flatly and unanimously rejected the precise argument of the majority over 65 years ago in Westinghouse in this fashion: “The general rule is well established that a judgment against the state ... merely liquidates and establishes the claim against the state, and that, in the absence of an express statute so providing, such judgment cannot be collected by execution against the state or its property, or by any of the ordinary processes of law provided for the enforcement of judgments; it remains for the state, after such judgment, to provide for the payment thereof in such manner as it sees fit ..., and the judgment creditor can obtain payment in no other way than that provided.” (Westinghouse Electric Co. v. Chambers, supra, 169 Cal. at p. 135 , italics added.)

The foregoing principles are not new (Baggett v. Dunn (1886) 69 Cal. 75 [ 10 P. 125 ]; Marshall v. Dunn (1886) 69 Cal. 223 [ 10 P. 399 ]), but they have current vitality. Thus in Veterans of Foreign Wars v. State of California (1974) 36 Cal.App.3d 688 [ 111 Cal.Rptr. 750 ], a plaintiff, otherwise qualified, was denied relief because plaintiff had failed to “specify a fund or appropriation from which a judgment may be paid. A judgment against the state, even when authorized by law, may be paid only out of appropriated funds.” (P. 697.)

The case before us, of course, involves lawyer’s fees for privately retained counsel. Five years ago we considered a case involving court-appointed counsel. (Payne v. Superior Court (1976) 17 Cal.3d 908 [ 132 Cal.Rptr. 405 , 553 P.2d 565 ].) Even in such a situation we cautioned: “The state also apparently assumes that if this court orders counsel appointed in certain cases, it will mandate that counsel be paid from public funds. We do not assert such power. If and how counsel will be compensated is for the Legislature to decide. Until that body determines that appointed counsel may be compensated from public funds in civil cases, attorneys must serve gratuitously in accordance with their statutory duty.. . ” (P. 920, fn. 6; see also County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191 [ 146 Cal.Rptr. 880 ].)

The rule is plain. We ourselves have declared it and consistently followed it. Claimants against the State of California will be paid if, as, and when authorized by the Legislature, and that is equally so whether or not the claim is reduced to judgment. I am constrained to ask, at this point, why it is that the fundamental doctrine of stare decisis, as though swept by a cosmic wind, seems to have vanished without a trace into *555 some juridical black hole, beyond all sight and sound and memory? We should follow our own precedents.

The majority attempts to escape the application of the foregoing settled principles by conjuring a theory that the Legislature has already appropriated funds from which plaintiff’s attorney’s fees may be paid, this in the face of two admitted express legislative deletions of appropriations for the specific attorney’s fees in question. The majority concedes that the Attorney General “may accurately portray the Legislature’s intent to deny payment of this particular attorney fee award .... ” (Ante, p. 546.) No matter. Combing through the general legislative budget the majority seizes on an appropriation contained in the 1978-1979 Budget Act (item 244(b)), denominated “operating expenses and equipment” of the Department of Health Services. This then becomes the escape hatch through which the majority attempts to ram through plaintiffs attorney’s fees. With due respect, it won’t work. The majority’s result is unconstitutional for the several reasons which I now develop.

1. “Operating Expenses”

It is crystal clear that, having twice deleted from successive budgets specific authorization for these lawyer’s fees, the Legislature did not then and does not now intend to authorize them. The majority acknowledges this but suggests that the Legislature nonetheless, unintentionally, I presume, authorized their payment. Apart. from the dubious proposition that the state budget, carefully prepared and reviewed by the Budget Analyst, Department of Finance, Governor’s Office, and legislative committee personnel contains any “unintentional” expenditures the majority’s budgetary selection is a poor one. The 1978-1979 Budget Act (§ 26(b)) defines “operating expenses” as including “all expenditures for purchase of materials, supplies, equipment, services ... and all other proper expenses.” Reasonably read, the terms “services” and “proper expenses” must refer to those routine services voluntarily incurred by, or at the direction of, the department itself in its day-to-day operations. The lawyer’s fees before us, on the other hand, are not such routine expenses. They represent an extraordinary, nonrecurring liability, involuntarily incurred and imposed upon the department by a court order and representing services directly rendered to an adverse party. These are not operational expenses of the Department of Health Services. They require a special appropriation rather than extraction from the general funds as a routine “operating expense.” They were proposed as special appropriations and they were deleted as special *556 appropriations. This fact distinguishes Vandegrift v. Riley (1934) 220 Cal. 340 [ 30 P.2d 516 ], heavily relied upon by the majority. In Vandegrift , the court concluded that the Legislature clearly intended “emergency funds” to be used to supplement depleted operating costs. In our case the Legislature did not intend the department’s “operating costs” to include the attorney’s fees of Mandel. What, may I ask, happens to the routine departmental operations, if near the end of its budgetary period its appropriations become exhausted because of their depletion by the payment of an unplanned, unbudgeted lawyer’s fee to plaintiff Mandel? This is very dangerous intermeddling through a judicial foraging raid aimed at rearranging and capriciously reducing departmental budget appropriations to replace monies that the Legislature in its wisdom and sole discretion has expressly deleted.

Moreover, my colleagues of the majority should be reminded that the lawyer’s fees before us were awarded on a “substantial benefit” theory posited on an alleged general savings of public funds to the entire state and its taxpayers. The whole thesis of the award was that the benefits conferred by the Mandel decision are shared by all state agencies not merely the Department of Health Services. Why, then, does the majority, apparently looking over the entire state budget, appropriate the money by taking all of it out of this item (“operating expenses”) budgeted for this particular entity (Department of Health Services)? The award, representing services allegedly benefitting the state as a whole, should be paid, if at all, from a specific appropriation set aside for that specific purpose, which of course, is exactly what was proposed to and rejected by the Legislature originally.

2. Specific Appropriation Deleted

Even were it agreed that the term “operating expenses” was sufficiently broad to include attorney’s fees of the kind herein presented, the appropriate legislative committee expressly deleted the proposed appropriation from the 1978-1979 Budget Act. What was the effect of such a deletion by the peopled elected representatives? Section 15 provides the answer in these words: “No appropriation made by this act . . . may be . . . used in any manner ... to achieve any purpose which has been denied by any formal action of the Legislature.” (Assem. Bill No. 2190, amended June 28, 1978, ch. 359, p. 242.) It is apparently conceded that the deletion of the item from the proposed budget constituted such “formal action.”

*557 The enormity of today’s intrusion into legislative affairs is thus revealed. Not only does the majority disregard the Legislature’s deletion of the proposed appropriation, but it also unilaterally restores this appropriation by choosing the particular department the budget of which is to be reduced, even selecting the particular item in that budget from which it chooses to direct the payment. Moreover, and this is perhaps the majority’s most wondrous contrivance, it does what the Legislature itself cannot do. The majority strikes section 15 from the Budget Act by using an “appropriation made [operating expenses of the Department of Health Services] to achieve a purpose which has been denied by . . . formal action of the Legislature” (payment of the lawyer’s fees). This exceeds even the Legislature’s own appropriation powers.

I suggest with due deference to my colleagues, that the majority has grossly interfered with a matter which is constitutionally and exclusively placed in legislative hands. It accomplishes this by making a shambles of the separation of powers doctrine, constitutionally ordained, and by wholesale rewriting of several sections of the budget act, all without benefit of authority and unburdened, of course, by the necessity for any budgetary hearing. The majority thereby constitutes itself the highest legislative body in the state.

The majority’s holding is as dangerous as it is unprecedented. It will allow courts to compel appropriations, contrary to the best judgment of the Legislature, by the simple device of rearranging the operating or general funds of any state agency. The lawyer’s fees before us are $25,000, but the disruptive principle is thereby set for the next case which may involve considerably more. The historic general rule which prevents either the courts or the executive from ordering appropriations is thus entirely swallowed up in the majority’s newly invented exception when a court finds that funds have been “already appropriated” (ante, pp. 540, 542) and even though the fictitious “appropriation,” if any, was unintended and inadvertent.

Hiding behind this device, the majority thus avoids a direct, sad, and wholly unnecessary confrontation with the Legislature itself. The stratagem used by the majority is to pick its way through the existing legislative appropriations in some budget in some department, and settle on one of the “operating expenses and equipment” items. The majority’s dispositive order therefore is directed at the Controller rather than the Legislature. To the Legislature’s complaint that it considered but flatly refused to make the specific appropriation, the majority answers “Too *558 late. You didn’t know it but you’ve already made it. Moreover, you can’t reconsider it.” The majority reasons that the Legislature unintentionally appropriated as “operating expenses and equipment” what it intentionally rejected as “plaintiff’s attorney’s fees.” The inevitable result of the majority’s technique is that lurking in every succeeding budget will be a “free fund,” wholly exempt from legislative control, past or present, but thereafter available for the payment of any rejected appropriation requests chosen by the court’s majority. This case calls for frankness not finesse. We should openly and honestly acknowledge that the Legislature not only did not intend to appropriate monies for payment of the lawyer’s fees, but it did not in fact appropriate such monies.

Moreover, the basis for the majority’s rationale is very dubious. It relies primarily on United States v. Lovett (1946) 328 U.S. 303 [ 90 L.Ed. 1252 , 66 S.Ct. 1073 ], and State Board of Education v. Levit (1959) 52 Cal.2d 441 [ 343 P.2d 8 ], Neither case is relevant, because neither involved a court-ordered appropriation from an agency’s general operating funds. In Lovett , the United States Supreme Court invalidated as a bill of attainder an attempted limitation upon the use of funds already appropriated for salaries of federal employees. In Levit , we struck down as discriminatory a similar restriction upon an existing appropriation for public school textbooks. Implicit in each of these decisions was the determination that the disputed payments properly could be ordered from appropriations already made for the same general purpose (i.e., for payment of federal salaries and purchase of public school textbooks). Obviously, neither case supports the majority’s novel theory that a court can breathe new life into a deleted, rejected appropriation thus reviving it by resort to a defendant public agency’s general operating fund which presumably has been appropriated for other purposes.

Furthermore, both Lovett and Levit involved payment restrictions which were patently discriminatory and unconstitutional. No such constitutional defect appears on the face of the record before us. We have no basis whatever for concluding that the Legislature acted with an improper motive or discriminatory intent in declining to appropriate funds for the payment of the extraordinary lawyer’s fee award at issue herein. For reasons satisfactory to itself the Legislature looked at this claim for attorney fees and decided not to appropriate money for it. It was not required to do so. This is precisely the kind of appropriation decision which the Legislature, and the Legislature alone, is fully empowered to make under our California Constitution.

*559 Several years ago we held that “The separation of powers doctrine articulates a basic philosophy of our constitutional system of government; it establishes a system of checks and balances to protect any one branch against the overreaching of any other branch. (See Cal. Const., arts. IV, V and VI; The Federalist, Nos. 47, 48 (1788).)” (Bixby v. Pierno (1971) 4 Cal.3d 130, 141 [ 93 Cal.Rptr. 234 , 481 P.2d 242 ].) In my view, today’s decision gravely impairs this vital and fundamental constitutional safeguard.

I would reverse the judgment.