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CCPOA Supplemental Brief, 1 DCA

CCPOA Supplemental Brief, 1 DCA

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Published by Jon Ortiz
CCPOA's Nov. 19 filing to the 1st District Court of Appeal refutes Gov. Arnold Schwarzenegger's contention that "self-directed furloughs" are covered by the California Supreme Court's furlough ruling.
CCPOA's Nov. 19 filing to the 1st District Court of Appeal refutes Gov. Arnold Schwarzenegger's contention that "self-directed furloughs" are covered by the California Supreme Court's furlough ruling.

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11/23/2010

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On Petition for Writ of Mandate Challenging Order and Writ of Mandate of Alameda Superior Court, Case No.

RG-09-441544

Honorable Frank Roesch

Department 31 (510) 268-5105

, .

No. A127292

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOR THE FIRST APPELLATE DISTRICT

DIVISION 2

CALIFORNIA CORRECTIONAL PEACE OFFICERS' ASSOCIATION,

Plaintiff/Real Party in Interest,

vs.

ARNOLD SCHW ARZENEGGER, in his capacity as Governor of the State of California, et al.,

Defendants/Petitioners.

JOHN CHIANG, in his capacity as the Controller of the State of California

Defendant/Real Party in Interest

REAL PARTY IN INTEREST CCPOA)S SUPPLEMENTAL BRIEF

'I

Gregg McLean Adam, No. 203436 Jonathan Yank, No. 215495 Gonzalo C. Martinez, No. 231724 CARROLL, BURDICK & McDONOUGH LLP

44 Montgomery Street, Suite 400 San Francisco, CA 94104

Telephone: 415.989.5900

Facsimile: 415.989.0932

Email: gadam@cbmlaw.com

Attorneys for Real Party in Interest California Correctional Peace Officers' Association

Daniel M Lindsay, No. 142895 CALIFORNIA CORRECTIONAL PEACE OFFICERS' ASSOCIATION 755 Riverpoint Drive, Suite 200

West Sacramento, CA 95605-1634

Telephone: 916.372.6060

Facsimile: 916.340.9372

E-Mail: dan.lindsay@ccpoa.org

No. A127292

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOR THE FIRST APPELLATE DISTRICT

DIVISION 2

CALIFORNIA CORRECTIONAL PEACE OFFICERS' ASSOCIATION,

Plaintiff/Real Party in Interest,

vs.

ARNOLD SCHW ARZENEGGER, in his capacity as Governor of the State of California, et al.,

Defendants/Petitioners.

JOHN CHIANG, in his capacity as the Controller of the State of California

Defendant/Real Party in Interest

On Petition for Writ of Mandate Challenging Order and Writ of Mandate of Alameda Superior Court, Case No. RG-09-441544

Honorable Frank Roesch

Department 31 (510) 268-5105

REAL PARTY IN INTEREST CCPOA'S SUPPLEMENTAL BRIEF

Gregg McLean Adam, No. 203436 Jonathan Yank, No. 215495 Gonzalo C. Martinez, No. 231724 CARROLL, BURDICK & McDONOUGHLLP

44 Montgomery Street, Suite 400 San Francisco, CA 94104

Telephone: 415.989.5900

Facsimile: 415.989.0932

Email: gadam@cbmlaw.com

Attorneys for Real Party in Interest California Correctional Peace Officers' Association

DanielM. Lindsay, No. 142895 CALIFORNIA CORRECTIONAL PEACE OFFICERS' ASSOCIATION 755 Riverpoint Drive, Suite 200

West Sacramento, CA 95605-1634

Telephone: 916.372.6060

Facsimile: 916.340.9372

E-Mail: dan.lindsay@ccpoa.org

TABLE OF CONTENTS

Page(s)

I INTRODUCTION 1

II PROFESSIONAL ENGINEERS FOUND THAT THE LEGISLATURE APPROVED THE TWO-DAY FURLOUGHS PROGRAM BASED ON

THE FACIAL CHALLENGES BEFORE IT AND SUBJECT To THE CONSTITUTIONAL LIMITATIONS OF THE SINGLE SUBJECT RULE ......... 6

A. Professional Engineers Found the Governor Had No Authority to Furlough State Employees, but Deemed the Legislature As Having Approved Two-Day Furloughs in the February 2009 Budget Acts, Subject to the Single

Subject Rule 8

B. The Governor's Third Furlough Day Was Not Approved by Professional Engineers And Was Expressly Rejected by

the Legislature 10

C. The Trial Court's Factual Findings in CCPOA's AsApplied Challenge Distinguish This "Self-Directed" Program Case from the Two-Day Furlough Program

Considered in Professional Engineers 12

III THE LEGISLATURE DID NOT RATIFY AN HOURLY WAGE REDUCTION AND COULD NOT HAVE DELEGATED SUCH AUTHORITY TO DEFENDANTS WITHOUT VIOLATING THE SINGLE

SUBJECT RULE 15

A. The Legislature Did Not Consider Or Approve A Program That Reduced Hourly Wages Because Defendants' Implementation Plan Expressly Stated The Program Would

Not Have That Effect 16

B. The Legislature Did Not Delegate Authority to Executive Officials to Adjust the Hourly Wages of Unit 6 Employees .... 17

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TABLE OF CONTENTS ( continued)

Page(s)

C. Had The Legislature Attempted To Delegate Authority To Agency Officials To Adjust Hourly Rates, That Would Be An Expansion of Defendants' Substantive Authority,

Violating The Single Subject Rule 19

IV THE "SELF-DIRECTED" FURLOUGHS IMPOSED ON UNIT 6 WERE NOT RATIFIED BY THE LEGISLATURE BECAUSE SUCH

RA TIFICATION WOULD ALSO VIOLATE THE SINGLE SUBJECT RULE By ABROGATING EXISTING STATUTES NOT CONSIDERED

IN PROFESSIONAL ENGINEERS , ............•.......... 22

A. The Only Statutes Professional Engineers Deemed Applicable to Furloughs Constrained Executive Action,

Not Legislative Action 24

B. Self-Directed Furloughs Are an Unauthorized Reduction Of Unit 6 Employees' Hourly Rates Violating Section

19826 25

C. The "Self-Directed" Furloughs Were Not Approved Because They Would Violate Labor Code Sections 212,

223, and 1171, et seq 27

D. The Labor Code Provisions at Issue Apply to the State as Employer and Defendants Have Waived any Contrary

Argument 29

V CONCLUSION 34

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TABLE OF AUTHORITIES

Page(s)

State Cases

Association for Retarded Citizens-California v. Department of Developmental Services

(1985) 38 Ca1.3d 384 21,23

Bearden v. Us. Borax, Inc.

(2006) 138 Cal.AppAth 429 34

California Lab. Federation v. Occupational Safety & Health Stds. Bd.

(Ist Dist., Div. 2 1992) 5 Cal.AppAth 985 22,27

CCPOA v. State of California

(Aug. 18,2010) 188 Cal.AppAth 646 30

City of Oakland v. Hassey

(1st Dist. 2008) 163 Cal.AppAth 1477 32

In re Retirement Cases

(1 st Dist. 2003) 110 Cal.AppAth 426 32

ITT World Communications, Inc. v. City and County of San Francisco

(1985) 37 Ca1.3d 859 23

Julian v. Hartford Underwriters Ins. Co.

(2005) 35 Ca1.4th 747 30

Los Angeles County Professional Peace Officers' Assoc. v.

County of Los Angeles

(2004) 115 Cal.AppAth 866 32

Mountain Lion Foundation v. Fish & Game Com.

(1997) 16 Ca1.4th 105 32

People v. Cole

(2006) 38 Ca1.4th 964 34

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TABLE OF AUTHORITIES (continued)

Page(s)

Planned Parenthood Affiliates v. Swoap

(1985) 173 Cal.App.3d 1187 23

Professional Engineers v. Schwarzenegger

(2010) 50 Ca1.4th 989 passim

Social Services Union, Local 535 v. Board of Supervisors of Tulare County

(1990) 222 Cal.App.3d 279 32

Tiernan v. Trustees of Cal. State University & Colleges

(1982) 33 Ca1.3d 211 30

State Statutes

Government Code

section 19824 4, 17,25,26

section 19826 2,4, 8, 9, 24, 25

Labor Code

Division 2, Part 1, Chapter 1, Article 1 31,32,33,34

section 201 33,34

section 202 33, 34

section 212 25,27,29, 30, 35

section 219 33,34

section 220 31, 32, 33, 34

section 221 33

section 223 25,27,28,29, 30, 33

section 224 32, 33

section 226 33, 34

section 227.3 32

section 230.3 33, 34

section 1021.5 27

section 1171, et seq 25,27,29, 30

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TABLE OF AUTHORITIES ( continued)

Page(s)

2008 Revised Budget Act

Senate Bill3X 2(Stats. 2009, 3d Ex. Sess. 2009-2010,

ch. 2) enacted February 19, 2009 passim

2009 Budget Act

Senate Bi113X 1 (Stats. 2009, 3d Ex. Sess. 2009-2010,

ch. 1) enacted February 19, 2009 passim

2009 Revised Budget Act

Assembly Bill4X 1 (Stats. 2009, 4th Ex. Sess. 2009-2010,

ch. 1) enacted July 24,2009) 2,3, 10, 11, 12, 15,21

Constitutions

California Constitution

article IV, section 9 19

Legislative History

Assem. Com. on Budget, Analysis of Assem. Bill. 4X 1

(2009-2010 4th Ex. Sess.), as amended July 23,2009 11

Legis. Counsel's Dig., Assem. Bill No. 2410 (1999-2000

Reg. Sess.), 885 Stats. 2000 33

Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bi114X 1

(2009-2010 4th Ex. Sess.), as amended July 23,2009 11,21

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I

INTRODUCTION

CCPOA disagrees with Defendants' position that Professional

Engineers v. Schwarzenegger (2010) 50 Ca1.4th 9891 also decides this case

in their favor. On the contrary, the facts and circumstances of this case

distinguish it from the time-off-without-pay furloughs program upheld in

Professional Engineers. Moreover, the reasoning of the Supreme Court,

when applied to the time-on-without-pay "self-directed" program applied to

Unit 6, dictates that the trial court's decision must be upheld.

Professional Engineers considered facial challenges by three

unions to the Governors' authority to implement the two-day-a-month

furloughs program. As relevant here, the Supreme Court held that the

Governor lacked authority to unilaterally implement a furloughs program

that reduced state employees' work hours and pay by two-days per month.

(Professional Engineers at pp. 64-65.) But the court ruled that the

Legislature remedied that illegal executive action by (1) subsequently

adopting appropriations reductions in the 2008 Revised Budget Act2

1 The page numbers cited herein are to the Slip Opinion.

2 Three budget acts are relevant to disposition of this case. The first two, the 2008 Revised Budget Act (Senate Bill3X 2 [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 2]) and the initial 2009 Budget Act (Senate Bill3X 1 [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 1]) (both enacted February 19,2009) were examined in Professional Engineers and are referred to hereinafter as

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equivalent to the savings attributed to the furloughs program by the

Governor and (2) providing "that the two-day-a-month furloughs program

is a permissible means by which the specific [budgetary] reductions ...

may be implemented." (Id. at p. 78.) Importantly, for purposes of this

case, in finding for Defendants, the Professional Engineers court

harmonized the Legislature's actions with the constitutional "single subject

rule" by finding that the Legislature did "not substantively amend or

change any existing statutory provision or expand or restrict the substantive

authority of [the Governor or] any state agency .... " (See id. at p. 77.)

This case is different. The trial court here considered an as-

applied challenge to a significantly-different, so-called "self-directed"

program and, based on the extensive factual record before it, found that

Defendants' failure to pay employees for actual hours worked violated

Government Code Section 19826 ("Section 19826") and various provisions

of the Labor Code. (AA 7:1689-1694.) Specifically, the trial court found

as a factual matter that the program effected a de facto reduction in the

hourly wages of Unit 6 members because they were required to work on

furlough days but had their pay reduced as though they did not. (AA

"the February 2009 Budget Acts." The third budget act, the 2009 Revised Budget Act (Assembly Bill4X 1 [Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 1 ]) (enacted July 24, 2009), was not considered in Professional Engineers.

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7:1689-1690.) In other words, this case does not involve actual furloughs, which Defendants themselves defined as "a temporary leave of absence without pay during a prescribed time for an employee." (AA 6:1432 [Feb. 11,2009 Memorandum to CDCR employees].)

Defendants' position that the various budget acts cured the illegalities found by the trial court with respect to the "self-directed" program for Unit 6 employees fails for at least the following four reasons:

1. The Legislature did not authorize Defendants to withhold

pay from state employees for actual time worked. Nor did it reduce the hourly rate of Unit 6 employees. (While legitimate savings were reaped from the many Unit 6 employees who were timely permitted to take their furlough days [i.e., did not work on furlough days], this case concerns those who were not permitted to take the time off.) The Legislature did not consider or approve reducing the hourly wages of Unit 6 employees because Defendants' furloughs-implementation memoranda expressly stated that the furloughs program would not reduce hourly wages. Yet, as the trial court found, the Unit 6 "self-directed" program, as implemented, did effect a de facto reduction in hourly wages for many employees.

2. The Legislature itself never approved a third furlough day,

nor did Professional Engineers, and the legislative history of the 2009 Revised Budget Act makes plain that the Legislature considered and rejected the Governor's three-day a month furloughs program.

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3. There was no delegation by the Legislature to DPA or

CDCR officials to effectuate an hourly wage reduction or to require Unit 6 employees and supervisors to work unpaid on furlough days.

a. Even if the Legislature had contemplated delegating

such power to DP A and CDCR, that expansion of substantive authority in a budget act would have violated the single subject rule. (See Professional Engineers at p. 77 ["the budget bill ... may not constitutionally be used to grant authority to a state agency that the agency does not otherwise possess"] [internal quotations and citations omitted].)

b. Because no such delegation in a budget act could

have passed constitutional muster, Defendants' reduction of Unit 6 employees' pay without reduced work hours violated Section 19826 and the Labor Code, as the trial court found.

4. Components of the furloughs program that may be deemed

ratified by the Legislature are limited to those that may be harmonized with the constitutional single subject rule, because the Legislature was acting through a budget bill. Professional Engineers did not consider whether specific iterations of Defendants's furlough plan, such as the "self-directed" plan for Unit 6, might violate or abrogate Government Code Section 19824 (which requires monthly payment of wages for all hours worked) or the Labor Code statutes at issue in this case. The court's reasoning, however,

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makes clear that because the Legislature ratified the two-day furloughs program in budget acts it could not abrogate these statutes or sanction their violation. (See Professional Engineers at p. 77 ["the budget bill ... may not constitutionally be used to ... substantively amend and change existing statut[ory] law"] [internal quotations and citations omitted].)

Equitable considerations also distinguish this case from Professional Engineers. It is one thing for the Supreme Court to rule narrowly, during a fiscal crisis, that Defendants did not have to pay state employees who did not work. (If Professional Engineers had not found implicit legislative approval for the furloughs, the State may have been compelled to pay employees for days on which they did not work.) But it is altogether another thing to read Professional Engineers to permit the state employer to withhold payment from those who did work. The trial court reached the right decision legally and equitably, and this Court should affirm.

If Defendants' overbroad position is adopted, this Court would have to read the budget acts as not only reducing appropriations, but also as repealing or vitiating the sections of the Government Code and Labor Code that provide wage and hour protections to those Unit 6 employees who were compelled to work unpaid for up to three days per month.

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II

PROFESSIONAL ENGINEERS FOUND THAT THE LEGISLATURE ApPROVED THE TWO-DAY FURLOUGHS PROGRAM BASED ON THE FACIAL CHALLENGES BEFORE IT AND SUBJECT To THE CONSTITUTIONAL LIMITATIONS OF THE SINGLE SUBJECT RULE

The reasoning in Professional Engineers as applied to the facts

of this case requires that the trial court decision be affirmed. The

Legislature's approval of the two-day furloughs program in a budget act is

necessarily limited by the constitutional single subject rule. The Court in

Professional Engineers acknowledged this in narrowly approving a

furlough plan that it viewed as consistent with the single subject rule

because such program did not "grant authority to a state agency that the

agency does not otherwise possess or to substantively amend and change

existing statut[ory] law." (Professional Engineers at p. 77 [internal

quotation and citations omitted].)

As noted above, Professional Engineers was a facial challenge

to the two-day furlough program decided on a limited factual record. (See

Professional Engineers at pp. 2-3, 8-10.) Few, if any, of the issues raised

in the present case were briefed or before the Supreme Court. As CCPOA

explained in its prior briefing, this case does not challenge the Governor's

authority to implement furloughs. Instead, CCPOA challenges the manner

of implementation of the Unit 6 "self-directed" program to the extent it

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resulted in employees receiving no pay for actual hours worked or payment

in the form of a furlough credit with no cash value.'

In light of the facts of this case, the most relevant components of

Professional Engineers are not that the two-day furloughs program was

validated ex post by the Legislature. Rather, the components of the

Supreme Court's decision that are relevant here are those that: (1) held that

the Governor had no authority to unilaterally furlough or otherwise reduce

employee salaries; (2) reaffirmed established limits on what the Legislature

can accomplish in a budget act consistent with the constitutional single

subject rule; and (3) found that the two-day furlough program before it did

not run afoul of the single subject rule because it did not grant "authority to

a state agency that the agency does not otherwise possess or to

substantively amend and change existing statut[ ory] law." (Professional

Engineers at p. 77 [internal quotation and citations omitted].)

3 Thus this case only concerns Unit 6 employes who could not timely take furlough days. (See, e.g., Defs.' AOB at p. 10 [relying on statistical evidence to argue "over 20,800 CDCR BU 6 employees have used 50% or more of their accumulated furlough hours"].)

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A. Professional Engineers Found the Governor Had No Authority to Furlough State Employees, but Deemed the Legislature As Having Approved Two-Day Furloughs in the February 2009 Budget Acts, Subject to the Single Subject Rule

In Professional Engineers, the Supreme Court found that the

Governor had no authority to unilaterally implement the furloughs program

(Professional Engineers at pp. 3; id. at pp. 26-27 [rejecting Governor's

constitutional authority to impose furloughs]; id. at pp. 40-60 [rejecting

Governor's authority under certain Government Code statutes]; id. at pp.

65-68 [rejecting Governor's authority pursuant to relevant MOUs]), and

further found that the furloughs program violated Government Code

Section 19826 (id. at pp. 57-60; id. at 60 ["the authority or lack of authority

of the Governor or the DP A unilaterally to institute the [two-day furloughs]

program must be determined under the provisions of section 19826"]).

Nevertheless, the court concluded that the February 2009 Budget Acts

remedied the Governor's ultra vires actions by approving the two-day

furlough program of reduced hours and commensurate reductions in pay as

a permissible means to implement the Legislature's reduction in

appropriations for employee compensation. (See id. at p. 78.) In particular,

the court construed the budget acts as approving such reductions through

the "then-existing furlough plan." (Id. at p. 72).4

4 Although Professional Engineers once mentions "self-directed" furloughs

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Although the court had found that Government Code Section

19826 was violated when the Governor implemented the furloughs program

(id. at pp. 60, 64-65), it explained that the Legislature's subsequent

acceptance of the two-day furlough program did not violate that statute,

because Section 19826 does not constrain legislative action relating to state

employee salaries. (See id. at pp. 78-79 ["Section 19826 places no

limitation upon the Legislature's authority to increase or reduce the payor

salaries of state employees, and section 3.90 [of the 2008 Revised Budget

Act] represents an exercise of the Legislature's reserved authority over

state-employee compensation"] [italics omitted].)

Professional Engineers further found that the Legislature's

acceptance of the two-day furlough plan in the February 2009 Budget Acts

did not violate the single subject rule because it did not "substantively

amend or change any existing statutory provision or expand or restrict the

substantive authority of any state agency. . . . In particular, section 3.90 of

the ... Budget Act does not alter the provisions of Government Code

section 19826 or purport to grant the Governor or the DP A authority to

impose unpaid furloughs unilaterally .... " (Id. at pp. 77-78.) Thus,

(Professional Engineers at p. 9), the decision makes clear that the court understood such "self-directed" furloughs at face value-i.e., time offwith a reduction in pay where an employee used his or her furlough day within the same month.

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Professional Engineers found that the Legislature's acceptance of the two-

day furloughs program was lawful, because the program did not violate the

single subject rule-that is, the approved program did not amend or

contravene existing statutes, or grant the executive branch additional

authority.

B. The Governor's Third Furlough Day Was Not Approved by Professional Engineers And Was Expressly Rejected by the Legislature

Defendants acknowledge that the legality of the third furlough

day was not decided by Professional Engineers, but they maintain that the

court's rationale nonetheless validates the third furlough day.' That

argument, however, is flatly contradicted by the legislative history of the

2009 Revised Budget Act. There, the Legislature unequivocally rejected

the Governor's proposal to add a third furlough day.

Professional Engineers read Section 3.90 of the various budget

acts as legislative directives on how "reductions in [ appropriations for]

employee compensation are to be achieved." (See, e.g., Professional

Engineers at pp. 12-15 [examining Section 3.90 of, respectively, 2008

Revised Budget Act, 2009 Budget Act, and 2009 Revised Budget Act].)

5 The third furlough day was not at issue in the cases decided by Professional Engineers, all of which predated the implementation of the first two furlough days. In the instant case, CCPOA amended its complaint to include a challenge to the third furlough day. (AA 2:476-494.)

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But unlike the February 2009 Budget Acts at issue in Professional

Engineers, the legislative history of the 2009 Revised Budget Act makes

plain that the Legislature did not intend therein for appropriation reductions

in employee compensation to be achieved through a salary cut or a third

furlough day:

Employee Compensation. Rejects the Governor's proposal to reduce salaries bv five percent - therebv maintaining a two-dav furlough (or all employees. [/p] Assumes some savings that will be achieved if proposed labor agreements are not ratified by the Legislature. General Fund savings are estimated at $60 million in 2008-09 and $150 million in 2009-10.

(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of

Assem. Bi1l4X 1 (2009-2010 4th Ex. Sess.), as amended July 23,2009,

page 13, par. 4 [italics and emphases added], hereafter "Senate Floor

Analysis A.B. 4X 1; see CCPOA's Motion to Take Judicial Notice.")?

(See also Professional Engineers at pp. 72-73 [relying on enate and

Assembly floor analyses to construe 2008 Revised Budget Act].)

6 The Assembly floor analysis also supports this reading of the 2009 Revised Budget Act, although it appears to contain a scriveners' error.

That analysis summarizes the Senate's amendments to the 2009 Budget Act as "Reflect[ing] $850 million in savings achieved by the Governor's executive order two additional furlough days." (Assem. Com. on Budget, Analysis of Assem. Bill. 4X 1 (2009-2010 4th Ex. Sess.), as amended July 23,2009, par. 14; see CCPOA's Motion to Take Judicial Notice.) The Governor's July 1,2009 executive order only proposed one additional furlough day (See AA 5:1038), and thus the Assembly analysis is best understood as reflecting the Senate's intention to achieve "savings" through "two. .. furlough days."

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Simply stated, the Legislature itselfrejected a third furlough day.

Professional Engineers at p. 73 found that legislative floor analyses of the

February 2009 Revised Budget Acts contained tacit approval of the two-

day furlough program. Whereas, conversely, the" floor analyses of the 2009

Revised Budget Act shows clear rejection of the third furlough day. Thus,

Defendants' argument that Section 3.90 (as amended by Section 552)

reflected legislative approval of the third furlough day has no merit. 7

c. The Trial Court's Factual Findings in CCPOA's AsApplied Challenge Distinguish This "Self-Directed" Program Case from the Two-Day Furlough Program Considered in Professional Engineers

The trial court's factual findings'' regarding the Unit 6 "self-

directed" program fundamentally distinguish this case from the furloughs

program examined in Professional Engineers.' Specifically, the

7 Although the Legislature reduced appropriations for employee compensation in the 2009 Revised Budget Act, Defendants ignore that such reduced appropriations could be achieved by other means of reducing employee compensation. Although those means are not specified, the legislative history described above makes it clear that the Legislature rejected achieving those savings through a 5% a salary reduction or by adding a third furlough day. (See Department of Personnel Administration v. Superior Ct. ( Greene) (1992) 5 Cal.App .4th 155 [Legislature's reduced appropriations for employee compensation does not constitute legislative - approval of 5% salary rate reduction for represented state employees].)

8 As noted in CCPOA's prior briefing, the trial court's factual findings are entitled to substantial weight. (See Opp. Brief at pp. 7-8 [noting "the trial court already weighed th[ e] evidence, and its factual determinations are entitled to substantial deference"] [citing cases].)

9 Defendants misrepresent the relief granted by the trial court. The trial

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Legislature could not approve the "self-directed" program through a budget

act because to do so would require repeal or vitiation of the numerous

Government and Labor Code sections requiring timely and full payment of

wages for hours worked.

, First, as CCPOA summarized in its Opposition Brief, the trial

court weighed the evidence before it and found that correctional

employees worked the same hours under the "self-directed" program

but were paid 13.5%) less. (Opp. Brief at pp. 2, 15-19; AA 7: 1689-1690

["[h]ere, all correctional employees have had their salaries reduced, but few

have seen their hours reduced by a concomitant amount, either when

viewed overall or within a pay period"].) Second, the trial court found that

the "self-directed" program unlawfully deferred employee compensation

into the future through the use of furlough credits. (See AA 7: 1692-

1694 [finding the furloughs program "reduced the wages of employees with

the promise of time off at some later undetermined date"]; AA 7: 1687-

1688.) Thus, although Defendants expressly stated that its program did not

reduce the hourly rate, the trial court found, as a factual matter, that hourly

wages were reduced because pay was reduced across the board,

regardless of whether an employee was able to take furlough days off.

court issued a writ of mandate directing Defendants to pay, prospectively, Unit 6 employees for all hours worked. (AA 7:1761.) It did not direct

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(See AA 7: 1692-1693 ["for those pay periods in which an employee works

more hours than those for which he or she is compensated at the regular

rate of pay, that constitutes a reduction in salary [rate]"].)

In its prior briefing, CCPOA presented a hypothetical describing

how the "self-directed" program worked in practice for Unit 6:

Correctional Officers A and B both have their salaries reduced the same 13.5%. Officer A takes her three furlough days off; Officer B cannot. But whether Officer B takes two, one or no furlough days off, her salary is effectively reduced as though she worked three fewer days, thus reducing her average hourly rate.

(See Opp. Brief at p. 28 [further noting that "this hypothetical occurs for at

least 85%" of Unit 6 employees].) This example demonstrated that, under

the "self-directed" program for Unit 6, employee hourly rate of pay

fluctuated on a month-to-month basis. But the full implication of this

hypothetical only comes to light after Professional Engineers: CDCR

officials charged with deciding whether affected employees can take 0, 1, 2,

or 3 furlough days thereby control employees' hourly rates of pay."

As explained below, while the Legislature could, in the February

2009 Budget Acts, approve an existing furloughs program (i.e., time off) as

Defendants to stop using self-directed furloughs.

10 The employee who can take all three furlough days per month will retain hislher hourly rate of pay; whereas the employee who takes two furloughs days in a month will have a lower hourly rate, with the employees who take

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a means of achieving budgetary savings, it could not substantively expand

the executive branch's authority and/or amend or repeal existing statutes.

III

THE LEGISLATURE DID NOT RATIFY AN HOURLY WAGE REDUCTION AND COULD NOT HAVE DELEGATED SUCH AUTHORITY TO DEFENDANTS WITHOUT VIOLATING THE SINGLE SUBJECT RULE

Professional Engineers confirmed that only the Legislature can

reduce wage rates or the total compensation of represented employees.

(Professional Engineers at pp. 28-35 [discussing Greene, supra,S Cal.

App.4th 155]). Yet, as the trial court found, the consequence of the Unit 6

"self-directed" program was an hourly wage rate reduction. (AA 7: 1692-

1693.) The Legislature, however, did not actually approve such a reduction

in the February 2009 Budget Acts because Defendants always maintained

that the furloughs program would not reduce employees' hourly rate of pay.

Moreover, the Legislature did not and could not have constitutionally

delegated any salary-adjusting authority to CDCR (or DP A) through any

budget act.

one or no furlough days per month will have a yet lower hourly rate of pay.

CBM-SF\SF496024.4

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A. The Legislature Did Not Consider Or Approve A Program That Reduced Hourly Wages Because Defendants' Implementation Plan Expressly Stated The Program Would Not Have That Effect

Professional Engineers deemed the Legislature to have

approved the existing furloughs program in the February 2009 Budget Acts.

A reduction of state employees' hourly wages, however, was not before the

Legislature when it considered those acts. (Id. at p. 68.) The "Governor's

furlough plan" defined a furlough as "a temporary leave of absence without

pay during a prescribed time for an employee." (AA 6:1432 [Feb. 11,2009

Memorandum to CDCR employees]; AA 7:1434 ["The employee's base

salary rate will not change-the actual payment will be reduced by the

equivalent of two days."].) Defendants have maintained throughout this

litigation, with reference to their furloughs memoranda, that affected

"[e]mployees' wage rates or salary ranges have not been reduced as a result

of the self-directed furloughs. A furlough only constitutes a reduction in

hours worked, not a reduction in the wage rate paid for that work." (See

AA 5:1219 [Defs.' Trial Court Opp. Brief]; Defs.' Opening Brief ("AOB")

atp. 20; Defs.' Replyatp. 7.)

The furloughs memoranda, through which the "Governor's

furlough plan" was implemented, have invariably provided that the "self-

directed" program reduced employees' work hours and pay by two (and

later three) days. (AA 6:1428, 1432; AA 5:1039-1042 [July 2,2009 DPA

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Memo re third furlough day]; AA 6:1450-1454 [July 8, 2009 Memo to

CDCR employees re third furlough day].) Employees unable to use

furlough days in a given month were paid with "furlough credits" to be

used as time off in the future. (AA 6:1426-1428, 1450-1454.) Defendants

assert that furlough credits maintain the hourly rate. (RT 30-3].) But this

argument disregards Section 19824's requirement (discussed below at

Section IV.B.) that employees be paid monthly for all preceding hours

worked. (AA 1218-1220; see also AOB p. 20.)

Thus, notwithstanding Defendants' broad reading of

Professional Engineers, the Legislature's approval of the "Governor's

furloughs plan" in the February 2009 Budget Acts could only encompass

(1) a reduction in hours worked by employees and (2) a commensurate

reduction in pay-in accordance with the furloughs program Defendants

proposed and purported to implement-and could not reasonably have

included approving reduced and fluctuating hourly rates for employees who

are unable to take timely furlough days.

- B. The Legislature Did Not Delegate Authority to Executive Officials to Adjust the Hourly Wages of Unit 6 Employees

The Legislature's approval of the "Governor's furlough plan" in

the February 2009 Budget Acts did not delegate authority to agency

officials to adjust Unit 6 members' wage rates. Under the Unit 6 "self-

directed" program, employees could take furlough days off only with the

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approval of their supervisors. (See AA 6:1426,1432, 1444, 1450; 5:1039 [supervisors determine whether Unit 6 employees take furlough days].) Such requests were (and are) routinely denied. (See AA 7:1689-90; AA 3:602,634-708 and AA 4:936-994; see especially AA 3:663,670-671, 681, 687-688 and AA 4:937,954,956,960,966-968 [documenting denials of requests to use furlough days].) Yet, because Unit 6 salaries were uniformly reduced by 13.5% regardless of whether individual supervisors allowed employees to take 0, 1, 2, or 3 furlough days off, hourly rates were necessarily reduced and varied (a) from month-to-month and (b) among otherwise similarly-situated employees.

For example, in CCPOA's hypothetical involving Correctional Officers A and B (see, supra, Part II.C; Opp. Brief at p. 28), under the "self-directed" program applied to Unit 6, both officers have their takehome salaries reduced by 13.5%, but only Officer A is able to take her three furlough days off. Officer B is allowed to take two, one or no furlough days off, but her salary is reduced as if she had taken three furlough days, thus reducing her average hourly rate. The Legislature nowhere delegated its sole power to effectuate changes in employee salary rates to such agency officials, nor could it.

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c. Had The Legislature Attempted To Delegate Authority To Agency Officials To Adjust Hourly Rates, That Would Be An Expansion of Defendants' Substantive Authority, Violating The Single Subject Rule

Under the reasoning of Professional Engineers, if the "self-

directed" program Defendants implemented had reduced Unit 6 employees'

hours commensurate with the reduction in their wages, the Legislature's

approval in the February 2009 Budget Acts would have cured the

illegalities. Equally, if Defendants' "self-directed" program had proposed

to reduce hourly rates uniformly for Unit 6, the Legislature's approval

might also be deemed as having remedied an otherwise illegal executive

action.

But Defendants' "self-directed" program did not reduce hours

commensurately with wages for thousands of Unit 6 employees; nor did it

effectuate a uniform reduction in hourly pay. What it did, as described

above, was create an unlawful procedure whereby employees' hourly rates

are adjusted on a monthly basis through the discretionary decisions of DP A

and CDCR officials. Such a delegation of legislative authority cannot be

achieved through a budget act due to the single subject rule.

The single subject rule is embodied in article IV, section 9 of the

California Constitution and provides: "A statute shall embrace but one

subject, which shall be expressed in its title." "[T]he budget bill may deal

only with the one subject of appropriations to support the annual budget,

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and thus may not constitutionally be used [1.] to grant authority to a state agency that the agency does not otherwise possess or [2.] to substantively amend and change existing statut[ory] law." (Professional Engineers, at p. 77 [internal quotations, brackets, and citations omitted].) In particular, Professional Engineers found that the February 2009 Budget Acts' approval of the two-day furloughs program avoided constitutional infirmities because it did not "purport to grant the Governor or the DP A" any additional authority-it merely approved an already-implemented reduction in work hours as a permissible means of meeting a reduction in appropriations. (ld. at pp. 78, 80 ["The Legislature exercised its own authority to ratify furloughs, and did not need to expand or modify preexisting executive authority in order to do so"]; id. ["section 3.90 [of the Budget Act] ... should not be interpreted to expand or modify the Governor's or the DPA's authority, under preexisting statutes, in a manner that would raise constitutional questions under the single subject rule"]')

If, as Defendants advance, the Legislature approved the "selfdirected" program for Unit 6, such approval would constitute a delegation of legislative authority to CDCR officials to change state employee wage rates. As Justice Corrigan explained in her concurring opinion: "The Legislature has retained considerable authority over matters of state employee compensation, but is not free to disregard statutory restrictions and grant agencies new authority in a budget bill." (Concurring

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Professional Engineers at p. 1.) Moreover, the Supreme Court has flatly rejecfed such expansions of agency authority in a budget act. (See, e.g., Association for Retarded Citizens-California v. Department of Developmental Services (1985) 38 Ca1.3d 384,394-395 [rejecting agency's interpretation of certain language in 1992 Budget Act as instructing director of agency to offer spending guidance to regional developmental centers because such reading would violate the single subject rule since, under existing statutory scheme, the agency's authority did not extend to control over developmental centers' operations or the violation].)

Relatedly, the legislative history of the 2009 Revised Budget Act demonstrates that when the Legislature contemplates that "statutory changes" are necessary to implement a budget act, it will provide for such changes through trailer bills. (See Senate Floor Analysis A.B. 4X 1, pp. 1- 2 ["Below by major subject area, are some of the significant reductions that are reflected in this bill. Statutory changes needed to activate some of these reductions are typically in one of the several budget trailer bills"] [italics added].)

Having established that Defendants had no authority to effectuate an hourly wage reduction, and that the Legislature could not have delegated such authority to DP A or CDCR in a budget act, such reduction necessarily violated the statutes at issue in this case.

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IV

THE "SELF-DIRECTED" FURLOUGHS IMPOSED ON UNIT 6 WERE NOT RATIFIED BY THE LEGISLATURE BECAUSE SUCH RATIFICATION WOULD ALSO VIOLATE THE SINGLE SUBJECT RULE By ABROGATING EXISTING STATUTES NOT CONSIDERED IN PROFESSIONAL ENGINEERS

Since the Legislature did not approve an hourly rate reduction-

not directly and not by delegating such authority to any agency-

Defendants' argument that the Legislature ratified the "self-directed"

program runs afoul of the single subject rule because it would mean the

Legislature impliedly amended or repealed the statutes at issue here.

"[T]he Legislature may not use the Budget Act to expressly or impliedly

amend or repeal existing substantive statutes." (See California Lab.

Federation v. Occupational Safety & Health Stds. Bd. (1st Dist., Div. 2

1992) 5 Ca1.AppAth 985,990.) Whether a budget act,

effects an amendment of existing law ... is . determined not by title alone, or by declarations in

the new act that it purports to amend existing law.

On the contrary, it is determined by an examination and comparison of its provisions with existing law. If its aim is 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.

(Id. 990-991 [internal citations and quotations omitted] [italics added].)

This Court has recognized that the budget act is particularly susceptible to

such misuse. (See id. 991 ["[t]he Budget Act is a complex measure whose

passage is essential, and as such is particularly susceptible to abuse"].)

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Animated by those concerns, our courts have consistently rejected construing the budget act as impliedly amending or repealing existing law. (See, e.g., id. at pp. 994-996 [holding that provisions in 1990 and 1991 Budget Acts purporting to impose an hourly rate cap on attorneys' fees statute violated the single subject rule because such provisions impermissibly amended the statute's "reasonable fee" cap]; Association for Retarded Citizens-California, supra, 38 Ca1.3d at pp. 394- 395; Planned Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187, 1200-1201 [holding the 1986 Budget Act violated the single subject rule because it contained restrictive language regarding the use of family planning funds which was in effect an impermissible amendment to the Family Planning Act]; cf. ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Ca1.3d 859, 864-866 [refusing to construe Proposition 13 as rolling back unit taxation of public utility property to 1976 assessments because such an interpretation would (1) violate the single subject rule because Proposition 13 only applies to real property taxation, and (2) "would pro tanto impliedly repeal" specific constitutional provision requiring unit taxation be based on annual assessment]. )

Moreover, as noted above, when the Legislature anticipates "statutory changes" are necessary to implement a budget bill, such changes

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are included in trailer bills, and Defendants do not point to any trailer bills

amending or repealing the statutes at issue in this case.

A. The Only Statutes Professional Engineers Deemed Applicable to Furloughs Constrained Executive Action, Not Legislative Action

As previously explained, the Professional Engineers court held

that the Legislature's ratification of the "Governor's furlough plan" did not

violate the single subject rule because it did not "alter the provisions of

Government Code section 19826 or purport to grant the Governor or DPA

authority to impose unpaid furloughs unilaterally." (Professional Engineers

at p. 78.) Specifically, the court found that Section 19826 did not constrain

the Legislature's actions because that statute only limits the authority of the

executive branch to adjust salaries-not the Legislature's authority. (Id. at

pp. 78-79 ["Section 19826 places no limitation upon the Legislature's

authority to increase or reduce the payor salaries of state employees"]

[italics original]; see also Section 19826 ["Notwithstanding any other

provision of law, the department shall not establish, adjust or recommend a

salary range" for represented state employees] [italics added].) Because

Section 19 826(b) reflects a reservation of legislative authority, a reduction

in appropriations for employee salaries by the Legislature necessarily

neither abrogated nor amended that statute.

Notably, the Supreme Court did not consider whether the single

subj ect rule would prevent the Legislature, in a budget bill, from approving

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actions violating or overriding the statutes before this Court: Government

Code section 19824 (requiring payment for all hours worked at the end of

each month) and Labor Code Sections 212 (requiring payment in cash or

negotiable equivalent), 223 (requiring payment at the full legally-required

hourly rate), and 1171, et seq. (requiring payment of at least the minimum

wage for each hour worked). Unlike Section 19826(b), these statutes do

not contain reservations oflegislative power. Thus, Professional

Engineers' determination that Section 19826 did not prevent the

Legislature from approving in a budget bill "real" furloughs (time off

commensurate with a pay reduction) cannot be extended to authorize any

action-executive or legislative-that would amend or abrogate these

substantive statutes because of the single subject rule.

B. Self-Directed Furloughs Are an Unauthorized Reduction Of Unit 6 Employees' Hourly Rates Violating Section 19826

The Legislature never authorized the reduction of Unit 6

employees' hourly wages and, consistent with the single subject rule,

cannot have authorized Defendants to do so.

The reasoning of Professional Engineers makes clear that the

Supreme Court did not therein consider the legality of a "self-directed"

program-like that Defendants imposed on Unit 6 employees-where

employees are unable to take furlough days off in the same month accrued,

but have their pay reduced as if they had. First, the Supreme Court found

CBM-SF\SF496024.4

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that, in the facial challenges before it, "the mandatory furlough program did not alter an affected state employee's hourly rate of pay." (Professional Engineers at p. 59 [italics original].) This is a significant distinction from the instant case because the trial court found that the "self-directed" program reduced hourly wages. (AA 7:1692.)

The Court in Professional Engineers also was not confronted with a potential violation of Section 19824, which requires that state employee salaries be paid monthly. (See Government Code section 19824.) Although the court cited Section 19824 in a footnote quoting from Greene, which explained that the statute "governed the frequency of pay" for state employees (see Professional Engineers at p. 31 n.18), the court did not address the effect of the statute on Defendants' "self-directed" program because it was unnecessary to do so when considering the Governor's twoday furloughs plan where employees' work hours and pay were reduced in the same month. The reasoning of Professional Engineers cannot support a finding of legislative approval of a "self-directed" program that required employees to work their full schedules while reducing their pay and providing furlough credits to be taken in the future. Legislative ratification of such a program would violate the single subject rule, because it would require the implied repeal or vitiation of Section 19824' s mandate that employees be paid their full salaries for all hours worked at the end of each pay period.

CBM-SF\SF496024.4

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C. The "Self-Directed" Furloughs Were Not Approved Because They Would Violate Labor Code Sections 212, 223, and 1171, et seq.

The Court in Professional Engineers also did not consider the

Labor Code statutes at issue here, nor whether approval of the "self-

directed" program would impact these mandates in violation of the single

subject rule. Substantively, because the trial court found there was a de

facto reduction in the hourly rate of pay, Labor Code sections 212, 223 and

1171, et seq. are violated for the reasons explained in CCPOA's briefs.

(See Opp. at pp. 28-36 [Lab. C. section 223]; id. at pp. 37-43 [Lab. C.

section 1171, et seq.]; id. at pp. 47-49 and Sur-Reply at pp. 1-5 [Lab. C.

section 212].) The Legislature cannot, in a budget bill, take away or

substantively limit rights it created. (See California Lab. Federation,

supra, 5 Cal.App.4th at p. 995-996 ["the Legislature is presumptively free

to limit attorney's fee awards under section 1021.5. What the Legislature

may not do is grant a substantive right to fees, as it has done in section

1021.5, and then retract or impair the right thus granted through

amendments masquerading as Budget Act provisions"] [italics in original].)

.

Professional Engineers does not change the reasons why the

trial court correctly ruled in CCPOA's favor on the Labor Code claims. As

explained above, in the various budget acts, the Legislature did not purport

to amend any statutes or sanction their violation; nor could it do so

consistent with the constitutional single-subject rule. Defendants' facile

CBM-SF\SF496024.4

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reading of Professional Engineers ignores these important constitutional limitations and does not explain how the Legislature could endorse the "self-directed" program when that program violates existing statutes.

Defendants argue the trial court's analysis regarding Labor Code section 223 and the applicable wage rates was invalidated by Professional Engineers+' Defendants are mistaken. Although it is true the Legislature exercised its authority not to fully fund the MOUs of the three unions in that case (see Professional Engineers at pp. 68-69), the de funding described in Professional Engineers involved a reduction in take-home salary, not a reduction in hourly rate or wage scales. (See, e.g., id. at p. 59 ["the mandatory furlough program did not alter an affected state employee's hourly rate of pay"] [italics in original].) This confirms the court did not address hourly rates of pay, but rather take-home pay because the furlough program the court considered was one where employees took two days off and received two days less pay. In sum, the Legislature's defunding of the MODs left intact the pre-existing hourly rates and wage scales and merely reduced take-home pay to reflect the two-day furlough program.

Unit 6's wage scales, as described in the Opposition Brief at pp. 30-33 are both statutory and contractual. The Legislature, as described

CBM-SF\SF496024.4

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above, did not change these rates when it approved the two-day furlough

program. The reasoning of Professional Engineers also does not change

the nature or the value of these hourly rates because the court contemplated

a program of time off commensurate with a reduction in pay. Simply

stated, even though the Legislature approved a two-day furlough of state

employees, it did not change the hourly rate for employees who were

required to work. To the extent employees were unable to take furlough

days and, thus, worked their full schedules, Defendants are obligated to pay

these employees for their work and at their full hourly rate. 12

D. The Labor Code Provisions at Issue Apply to the State as Employer and Defendants Have Waived any Contrary Argument

Defendants argue that Labor Code section 223 does not apply to

the state employer-resurrecting a previously-abandoned argument that

falls outside the scope of this Court's request for supplemental briefing.

Regardless, Defendants are incorrect.

11 In their Supplemental Brief, Defendants do not further dispute that the self-directed furloughs program violates Labor Code Sections 1171, et seq. and 212.

12 CCPOA noted in its prior briefing that the previous wage scales remained in effect "absent a new legislative enactment." (Opp. Brief at p. 32.) The Legislature'S defunding of the MOUs is not such an enactment because, as explained above, the de funding was to reflect commensurate reductions in work hours and consequent take home pay.

CBM -SF\SF496024.4

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First, Defendants' argument is waived because it was not

adequately raised and supported in their opening brief. (Tiernan v. Trustees

of Cal. State University & Colleges (1982) 33 Ca1.3d 211,216 n.4 [noting

argument raised before trial court but not on appeal "may therefore be

deemed waived"]; see also Julian v. Hartford Underwriters Ins. Co. (2005)

35 Ca1.4th 747, 761 nA [appellate courts may properly refuse to consider

arguments raised for the first time on reply].) (See also Opp. Brief at p. 29

[noting Defendants do not contest Labor Code section 223 applies to state

employer]; Defs.' Reply Brief at p. 11 [acknowledging Labor Code

inapplicability argument was not made in opening brief].) Furthermore,

Defendants' argument is beyond the scope of this Court's briefing request.

(See October 7,2010 Request ["additional briefing addressing the impact

of the Supreme Court's decision may be submitted"],)

This Court should also reject Defendants' reliance on Division

4's decision in CCPOA v. State of California (Aug. 18,2010) 188

Cal.AppAth 646. First, that decision did not decide that Labor Code

section 223 does not apply to the State Employer.l'' Next, Defendants'

overbroad reading of that decision is at odds with settled law of this district

13 Notably, Defendants do not argue that, after CCPOA v. State of California, supra, 188 Cal.App.4th 646, Labor Code sections 1171, et seq. and 212 do not apply to the state employer, and thus effectively concede they do apply.

CBM -SF\SF496024.4

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and this division. As relevant here, Division 4 opined that certain

exemptions found in Labor Code section 220 did not make "the entirety of

chapter 1 [of the Labor Code] to be generally applicable to public entities."

(Id. at p. 653; id. at p. 654 ["These specific exemptions cannot, by

implication, be read as making chapter 1 generally applicable to public

entities"].)

Labor Code section 220 is found in Division 2, Part 1, Chapter

1, Article 1 of the Labor Code (hereafter, "Chapter 1, Article 1"). The

distinction between Chapter and Article is important." Subdivision (a) of

section 220 exempts State employees from certain provisions - all found,

like 220 itself, within Chapter 1, Article 1:

§ 220. Public employees

(a) Sections 201.3, 201.5, 201.7,203.1,203.5,204, 204a, 204b, 204c, 204.1,205, and 205.5 do not apply to the payment of wages of employees directly employed by the State of California. ..,

The detailed list of exemptions in section 220, subdivision (a) should be

read to mean that the other provisions in Chapter 1, Article 1 do apply to

State employees.f "[W]here exceptions to a general rule are specified by

14 Division 4 did not consider the following arguments, including the legislative history expanding Labor Code liability for the state, in part because the issue was not fully briefed. (See id. at p. 654.)

15 In cases decided under the directly analogous language of section 220, subdivision (b) (covering employees of counties and other political

CBM-SF\sF496024,4

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statute, other exceptions are not to be presumed unless a contrary legislative

intent can be discerned." (Mountain Lion Foundation v. Fish & Game

Com. (1997) 16 Ca1.4th 105, 116.) Here, this rule means that the Court

should not presume that State employees are exempt from sections in

Article I that are not listed in subsection 220( a), "unless a contrary

legislative intent can be discerned."

As a general matter, the legislative intent was to narrow, over

time, the State's exemptions from Chapter 1, Article 1. Until ten years ago,

section 220, subdivision (a) exempted the State from far more of Article 1

provisions than it does now: all sections from 200 to 211 and from 215 to

219. (See Stats. 1937, c. 90, p. 200, § 220.) But Assembly Bi112410

amended section 220 to provide far fewer State exemptions, as shown in

the current subdivision (a). The stated purpose of this amendment was to

apply additional provisions of Chapter 1, Article 1 to the State:

subdivisions), courts including this District regularly recognize the application to public employees of Article 1 provisions not specifically exempted. See, e.g., Social Services Union, Local 535 v. Board of Supervisors of Tulare County (1990) 222 Cal.App.3d 279,287 ("the Labor Code expressly authorizes agreements between public employees and their employers for payment of health care costs through payroll deductions (Lab. Code, § 224)"); In re Retirement Cases (1st Dist. 2003) 110 Cal.App.4th 426,474 (Labor Code section 227.3 prevents forfeiture of public employees' paid leave benefits); Los Angeles County Professional Peace Officers' Assoc. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 872 (applying Labor Code section 227.3); City of Oakland v. Hassey (1st Dist. 2008) 163 Cal.App.4th 1477, 1499-1501 (applying Labor Code

CBM-SF\sF496024.4

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Existing law prescribes requirements respecting employer payment of wages, including timely payment thereof, that are applicable to all employers, other than the state, counties, cities, and other municipal corporations ....

This bill would delete specified exemptions for the state as an employer from these provisions.

(Legis. Counsel's Dig., Assem. Bill No. 2410 (1999-2000 Reg. Sess.), 885

Stats. 2000, emphasis added; see CCPOA's Motion to Take Judicial

Notice.)

Reinforcing this conclusion, other individual provisions in

Chapter 1, Article 1 exempt the State partially. These include sections 201,

202,219,226 and 230.3.16 The Legislature must have understood the

provisions of Article 1 to apply to the State as a threshold matter, or it

would have had no reason to specify these partial exemptions.

In summary, Reading AB 2410 together with the plain language

of Section 220 dictates a conclusion that the provisions of Division 2, Part

1, Chapter 1, Article 1 of the Labor Code apply to the State employer unless

sections 221, 223, and 224).

16 See the following sections of the Labor Code:

-- 219, subd. (b) ("The state employer does not VIolate this section by authorizing employees .... ");

-- 226, subd. (h) ("This section does not apply to the state ... , except that if the state .... "); and

-- 230.3, subd. (c) ("Subdivisions (a) and (b) of this section shall not apply to any public safety agency .... ").

CBM -SF\sF496024.4

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(1) Section 220 expressly says they do not, or (2) a partial exemption exists elsewhere. This conclusion is reinforced by applying two standard rules of statutory construction: (1) "expressio unius est exclusio alterius" (Bearden v. Us. Borax, Inc. (2006) 138 Cal.AppAth 429,437 ["if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary"]); and (2) "avoid, if possible, interpretations that render a part of a statute surplusage" (People v. Cole (2006) 38 Ca1.4th 964,980-981)- i.e., unless the provisions of Chapter 1, Article 1 apply to the State, there would be no purpose in Labor Code section 220(a) or in the partial exemptions found in Labor Code sections 201,202,219,226 and 230.3.

V CONCLUSION

For all these reasons, this Court should reject Defendants' facile

reading of Professional Engineers. This case is different, and involves a discrete group of Unit 6 employees who worked but were not paid because they were not permitted to take furlough days off. Thus, although Professional Engineers provides much guidance, it does not resolve the central issue of this case, approve the Governor's imposition of a third furlough day, or address the interplay of Government and Labor Code statutes at issue here with the constitutional single subject rule. Its reasoning, however, confirms that the trial court reached the right result-a

CBM-SF\sF496024.4

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writ of mandate commanding Defendants to pay Unit 6 employees for

hours worked-both legally and equitably.

Thus, this Court should affirm the trial court's order and

issuance of a peremptory writ of mandate, deny Defendants' request for a

writ of mandate, and remand for further proceedings. This Court should

further reverse only that part of the trial court's order relating to Labor

Code section 212, and require it to enter a new order finding for CCPOA on

that claim as well.

Dated: November 19, 2010

CARROLL, BURDICK & McDONOUGH LLP

By ~nAdam

Jonathan Yank

, Gonzalo C. Martinez Attorneys for Real Party in Interest

California Correctional Peace Officers' Association

CBM -SF\SF496024.4

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WORD COUNT CERTIFICATION

Pursuant to Rule 8 .204( c) of the California Rules of Court, I

certify that the attached brief contains 7,912 words, as determined by the computer program used to prepare the brief.

Dated: November 19, 2010

CBM -SF\SF496024.4

-1-

California Correctional Peace Officers' Association v. Arnold Schwarzenegger, et al., California Court of Appeal, First Appellate District, Division 2, No. A127292

PROOF OF SERVICE BY UNITED PARCEL SERVICE (UPS) - NEXT DAY

I declare that I am employed in the County of San Francisco, California. I am over the age of eighteen years and not a party to the within cause; my business address is 44 Montgomery Street, Suite 400, San Francisco, CA 94104. On November 19, 2010, I served the enclosed:

REAL PARTY IN INTEREST CCPOA'S SUPPLEMENTAL BRIEF

on the parties in said cause (listed below) by enclosing a true copy thereof in a prepaid sealed package, addressed with appropriate United Parcel Service shipment label and, following ordinary business practices, said package was placed for collection (in the offices of Carroll, Burdick & McDonough LLP) in the appropriate place for items to be collected and delivered to a facility regularly maintained by United Parcel Service. I am readily familiar with the Firm's practice for collection and processing of items for overnight delivery with United Parcel Service and that said package was delivered to United Parcel Service in the ordinary course of business on the same day.

Ross C. Moody, Esq.

California Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004

Counsel for Defendant/Real Party in Interest, John Chiang in his capacity as the Controller of the State of California

(415) 703-1376

Fax (415) 703-1234

David W. Tyra, Esq. Kristianne T. Seargeant, Esq.

Kronick, Moskovitz, Tiedemann & Girard 400 Capitol Mall, 27th Floor

Sacramento, CA 95814

Counsel for Defendants/Petitioners Arnold Schwarzenegger, State of California; California Department of Personnel Administration; California Department of Corrections and Rehabilitation; California Department of Mental Health; California Department of Juvenile Justice (State Defendants/Petitioners)

(916) 321-4500

Fax (916) 321-4555

Linda A. Mayhew, Esq. Will M. Yamada, Esq.

Department of Personnel Administration 1515 S Street, North Building, Suite 400 Sacramento, CA 95811-7258

Co-Counsel for State Defendants/Petitioners

(916) 324-0512

Fax (916) 323-4723

CBM-SF\SF496024.4

-1-

JeffR. Rieger, Esq. Reed Smith, LLP

1999 Harrison Street, Suite 2400 Oakland, CA 94612

Counsel for Defendant/Appellant CalPERS

(510) 466-6870

Fax (510) 273-8832

Alameda County Superior Court U.S. Post Office

201 - 13th Street

Oakland, CA 94612

Supreme Court of California Office of the Clerk, First Floor 350 McAllister Street

San Francisco, CA 94102

Four copies by hand delivery

I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on November ,2010, at San Francisco, California.

CBM -SF\SF496024.4

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