Case No. A136338 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE EDMUND G.

BROWN, JR., Governor of the State of California, et al., Defendants and Appellants v. PROFESSIONAL ENGINEERS IN CALIFORNIA GOVERNMENT, et al., Plaintiffs and Respondents. Appeal from the Superior Court, Alameda County The Honorable Stephen A. Brick, Department 17 (Superior Court Case No. RG10494800, consolidated with Case No. RG10530845) PLAINTIFFS-RESPONDENTS’ ANSWERING BRIEF

BARBARA J. CHISHOLM (SBN 224656) PEDER THOREEN (SBN 217081) Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-Mail: bchisholm@altber.com

GERALD JAMES (SBN 179258) 455 Capitol Mall, Suite 501 Sacramento, CA 95814 Telephone: (916) 446-0400 Facsimile: (916) 446-0489 E-mail: gjames@pecg.org

Attorneys for Plaintiffs and Respondents Professional Engineers in California Government, Shabbir Ahmed, Terry Escarda, and California Association of Professional Scientists

TABLE OF CONTENTS Certificate of Interested Entities or Persons Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INTRODUCTION AND SUMMARY OF ARGUMENT. . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Unpaid Furloughs of State Employees Represented By PECG and CAPS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Budget Act for Fiscal Year 2010-2011 and Reductions to Employee Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B.

C.

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. Mandamus Relief is Appropriate to Remedy the Furloughing of Employees that Exceeded Legislative Authorization. . . . . . . . . . . . . 7 The Trial Court Correctly Held that Employees Represented by PECG and CAPS Performing Military Base Remediation and Hazardous Material Management Could Not Lawfully Be Furloughed Without Violating the Single Subject Rule of the California Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. Health and Safety Code §25353.5 and Water Code §13177.7 Prohibit the Unpaid Furloughing of State Employees Performing Military Base Remediation and Hazardous Material Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 The Budget Acts Could Not Ratify the Furlough Program Because Any Such Ratification Would Violate the Single Subject Rule.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

II.

B.

i

III.

The Trial Court Correctly Held that Appellants’ Furloughing of Employees in State Bargaining Units 9 and 10 Through the End of March 2011 Exceeded the Legislature’s Authorization of Reductions to Compensation that Were “Proportionate” to Those of Supervisory Employees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 The Trial Court Reasonably Overruled Appellants’ Objections to Evidence of Reductions to Employees’ Compensation in Fiscal Year 2010-2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

IV.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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TABLE OF AUTHORITIES STATE CASES Bannerman v. Boyle (1911) 160 Cal. 197. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Berkeley Unified School District v. City of Berkeley (1956) 141 Cal.App.2d 841. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Bernard v. Foley (2006) 39 Cal.4th 794.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Bodinson Manufacturing Co. v. California Employment Commission (1941) 17 Cal.2d 321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8 Brown v. Chiang (2011) 198 Cal.App.4th 1203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Brown v. Superior Court (2011) 199 Cal.App.4th 971. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Bunnett v. Regents of University of Cal. (1995) 35 Cal.App.4th 843. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 California Association of Health Facilities v. Director, Department of Health Services (1986) 178 Cal.App.3d 1109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 California Attorneys v. Brown (2011) 195 Cal.App.4th 119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19, 28 California School Employees Association v. Torrance Unified School District (2010) 182 Cal.App.4th 1040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 California Teachers’ Association v. Governing Board of Gustine Unified School District (1983) 145 Cal.App.3d 735. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 13, 14

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California Labor Federation, AFL-CIO v. Occupational Safety and Health Standards Board (1992) 5 Cal.App.4th 985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Carter v. California Department of Veterans Affairs (2006) 38 Cal.4th 914.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Coan v. State of California (1974) 11 Cal.3d 286. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12 Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Fitch v. Justice Court of Anderson Valley Judicial District (1972) 24 Cal.App.3d 492. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22, 24 Fugitt v. City of Placentia (1977) 70 Cal.App.3d 868. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Glendale City Employees’ Association, Inc. v. City of Glendale (1975) 15 Cal.3d 328. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Green v. State of California (2007) 42 Cal.4th 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 30 Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Harbor v. Deukmejian (1987) 43 Cal.3d 1078. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Holt v. Kelly (1978) 20 Cal.3d 560. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Homan v. Gomez (1995) 37 Cal.App.4th 597. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Payne v. Superior Court (1976) 17 Cal.3d 908. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Carter (1996) 48 Cal.App.4th 1536. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Lamas (2007) 42 Cal.4th 516.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Rodriguez (1999) 20 Cal.4th 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Planned Parenthood Affiliates of California v. Swoap (1985) 173 Cal.App.3d 1187. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Pomona Police Officers’ Association v. City of Pomona (1997) 58 Cal.App.4th 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Reinbold v. City of Santa Monica (1976) 63 Cal.App.3d 433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 San Diego Watercrafts, Inc. v. Wells Fargo (2002) 102 Cal.App.4th 308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 San Joaquin Helicopters v. Department of Forestry (2003) 110 Cal.App.4th 1549. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School District (2006) 139 Cal.App.4th 1356. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 v

Sanders v. City of Los Angeles (1970) 3 Cal.3d 252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Sara M. v. Superior Court (2005) 26 Cal.4th 998.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Stone v. Bancroft (1902) 139 Cal. 78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13 Treber v. Superior Court (1968) 68 Cal.2d 128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Troche v. Daley (1990) 217 Cal.App.3d 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 STATE STATUTES A.B. 1700 (Chapter 869, Stats. of 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Budget Act of 2010, S.B. 870, §3.91(a) (Chapter 712, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 11 California Constitution, art. IV, §9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 21 Code of Civil Procedure §1021.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Evidence Code §353. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Evidence Code §354. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Government Code §3513. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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Government Code §3527. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Government Code §19826. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Health & Safety Code §25353.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Insurance Code §11873. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 26 Revised 2008 Budget Act, S.B.3X 2, §3.90(a). . . . . . . . . . . . . . . . . . . . . . 23 Revised 2009 Budget Act, A.B.4X 1, §552. . . . . . . . . . . . . . . . . . . . . . . . . 23 Revised 2012 Budget Act, A.B. 1497, §3.90 (Chapter 29, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26 S.B. 1006 (Chapter 32, Stats. of 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Water Code §13177.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim LEGISLATIVE HISTORY MATERIALS Assembly Floor Analysis of A.B. 1700 (2003-04 Reg. Sess.), as amended Sept. 2, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Senate Appropriations Committee, Fiscal Summary of A.B. 1700 (2003-04 Reg. Sess.), as amended Aug. 18, 2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 MISCELLANEOUS Webster Collegiate Dict. (11th ed. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 30

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INTRODUCTION AND SUMMARY OF ARGUMENT In Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 1041, 1047-48 (“Professional Engineers”), the California Supreme Court affirmed the core principle that the Executive Branch lacks authority unilaterally to impose unpaid furloughs on state employees. Such furloughs are lawful only to the extent they are duly authorized by the Legislature. Id. This appeal involves two discrete instances in which the unpaid furloughs of employees represented by Professional Engineers in California Government (“PECG”) and the California Association of Professional Scientists (“CAPS”) exceeded any valid legislative authorization.1 First, Appellants furloughed employees working in positions involving hazardous waste remediation and management on military bases, positions expressly protected from such furloughs by Health and Safety Code §25353.5 and Water Code §13177.7.2 As the trial court correctly held, the Legislature could not, consistent with the single subject rule of the California Constitution, override these statutory protections through budget legislation. JA, pp. 3110-11. Appellants argue that the single subject rule does not apply because the Legislature has general, reserved authority over employee compensation. AOB 32-33. But nothing in Appellants’ argument

PECG and CAPS, together with two individual state employees represented by PECG, Shabbir Ahmed and Terry Escarda, are PlaintiffsRespondents in this matter. Appellants include the Governor, the California Department of Human Resources (formerly known as the Department of Personnel Administration or “DPA”), and various state agencies that employ members of PECG and CAPS. JA, pp. 1645-47, 1683-88. The State Controller has not appealed the trial court’s ruling. 1
2

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can overcome the fact that the Legislature’s authorization of furloughs of employees in statutorily protected positions necessarily “change[d] . . . the scope [and] effect of . . . existing statute[s],” and thereby violated the single subject rule. Franchise Tax Bd. v. Cory (1978) 80 Cal.App.3d 772, 776. Second, Appellants exceeded the express requirement set forth in the Budget Act of 2010 (“2010 Budget Act”), that any reductions in compensation for represented employees, including any reductions achieved through the furlough program, be “proportionate” to reductions made to nonrepresented employees’ compensation. S.B. 870, §3.91(a) (Chapter 712, Stats. of 2012). Despite this explicit limitation embedded in the Legislature’s authorization, Appellants furloughed employees in the bargaining units represented by PECG and CAPS in a manner that resulted in disproportionate reductions to those employees’ compensation. Appellants cannot dispute that the plain meaning of the Budget Act requires that reductions to employees’ compensation be of the same proportion or ratio, and so instead urge this Court to find that “proportionate” means something less than its plain meaning. AOB 36-38. But the Legislature’s instruction that reductions to employee compensation be “proportionate” is a precise and clear limit. The trial court was correct to set aside the furlough program to the extent it exceeded the Legislature’s authorization and exacted disproportionate reductions in the pay of PECG’s and CAPS’ rank-and-file members. JA, p. 3113. Additionally, contrary to Appellants’ arguments, writ relief is appropriate to correct and set aside these unauthorized and unlawful agency actions. Bodinson Mfg. Co. v. California Employment Comm’n (1941) 17 Cal.2d 321, 328-30.

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The well-reasoned and considered judgment of the trial court should be affirmed in its entirety. STATEMENT OF FACTS A. Unpaid Furloughs of State Employees Represented By PECG and CAPS PECG and CAPS represent close to 16,000 engineers and scientists employed throughout the State. JA, p. 2406. PECG and CAPS are certified pursuant to Government Code §3513(b) as the exclusive bargaining representatives of State Bargaining Unit 9 and 10, respectively. Id. Additionally, both PECG and CAPS are verified supervisory employee organizations and, pursuant to Government Code §3527(c), represent state professional engineers and scientists who are supervisory employees. Id. In 2008 and 2009, then-Governor Schwarzenegger issued two Executive Orders requiring the unpaid furloughing of practically all state employees, including those represented by PECG and CAPS. JA, pp. 253439, 2407. Pursuant to those Executive Orders, employees were subject to two days of unpaid furloughs each month from February 1 to June 30, 2009, and then three days of unpaid furloughs per month from July 1, 2009 to June 30, 2010. JA, pp. 2535, 2539, 2407. There were no furloughs in July 2010. On July 28, 2010, however, the Governor issued Executive Order S-12-10, again directing the furloughing of state employees for three days each month, beginning in August 2010. JA, pp. 2540-42. Rank-and-file members of Bargaining Units 9 and 10 were subject to these three-day-per-month furloughs through the end of March 2011. JA, p. 2407. In contrast, supervisory employees, including those who were

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members of PECG and CAPS, were subject to the three-day-per-month furloughs only through the end of October 2010. Id. B. The Budget Act for Fiscal Year 2010-2011 and Reductions to Employee Compensation On October 8, 2010, the Legislature passed Senate Bill 870 as the Budget Act for Fiscal Year 2010-2011. Section 3.91 of the Act provides for “reductions in employee compensation achieved through the collective bargaining process or through administrative actions for represented employees and a proportionate reduction for nonrepresented employees (utilizing existing authority of the administration to adjust compensation for nonrepresented employees) . . . .” S.B. 870, §3.91 (JA, p. 2663) (emphasis added). The section further provides that the Director of Finance shall make the “necessary reductions to each item of appropriation.” Id. On October 8, 2010, the same day the Legislature passed the 2010 Budget Act, then-Governor Schwarzenegger issued Executive Order S-1510, which reduced “nonrepresented” employees’ compensation. JA, pp. 2543-45. This Order applied to most state employees who were not members of a certified State Bargaining Unit, including those supervisory employees represented by PECG and CAPS. Id.; JA, p. 2411. Executive Order S-15-10 reduced nonrepresented employees’ compensation in two ways: a one-day-per-month personal leave program and an increase in employees’ contributions to pension plans of 3 percent per month. JA, p. 2544. Both of these reductions were effective November 1, 2010. When taken together with the three-day-per-month furloughs to which the unrepresented employees were subject from August through October 2010, unrepresented state employees’ pay for fiscal year 2010-11 was reduced by a total of 8.5 percent. JA, pp. 2411, 3026-27.

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The reductions to nonrepresented employees’ compensation in fiscal year 2010-2011 precisely mirror reductions approved by the Legislature on October 7, 2010, to the compensation of employees in nine State Bargaining Units represented by Service Employees International Union (“SEIU”). JA, pp. 2544-2545. The total reduction to SEIU-represented employees’ compensation for fiscal year 2010-2011 was also 8.5 percent. JA, pp. 2412, 3026-27. PECG- and CAPS-represented employees in Bargaining Units 9 and 10 were subject to the three-day-per-month furloughs longer than the nonrepresented and SEIU-represented employees, and thus the reduction to their compensation for the 2010-2011 fiscal year reached 8.5 percent after the imposition of one unpaid furlough day in March 2011. JA, pp. 2412, 3025-26.3 Despite this, employees in Bargaining Units 9 and 10 were subject to two additional furlough days in March 2011. C. Procedural History PECG’s writ petition was filed in the trial court on January 21, 2010, and challenged the furloughs implemented pursuant to the 2008 and 2009 Executive Orders. The Court consolidated PECG’s writ petition with nine subsequently-filed cases challenging the Governor’s furlough orders with respect to other state employees. JA, pp. 612-16, 619-23, 644-46, 1268-71,

Appellants do not dispute that the furlough program resulted in a greater percentage reduction in compensation for employees in Bargaining Units 9 and 10 than the percentage by which nonrepresented employees’ compensation was reduced. Although they object to the trial court’s decision to admit evidence of the exact percentages by which employee compensation was reduced, those objections are without merit (see infra at pp. 35-40), and none of the underlying facts are in dispute. 5

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1457-58. With the exception of the writ petition filed by CAPS (JA, pp. 1273-83), these other matters are no longer pending. When the Governor issued his July 28, 2010 Executive Order, requiring three-day-per-month furloughs beginning in August 2010, PECG and CAPS sought a temporary restraining order enjoining the furlough program. JA, pp. 648-74. The trial court entered a temporary restraining order and this Court denied a writ of supersedeas filed by the Governor and DPA. JA, pp. 1249-59, 1272. The Supreme Court then granted review and stayed the trial court proceedings, deferring further action until after a decision in Professional Engineers in California Government v. Schwarzenegger. JA, p. 1623; see also 50 Cal.4th at 1008. In Professional Engineers, the Court rejected the Governor’s arguments that he had authority unilaterally to order unpaid furloughs of state employees, confirming that such power rests with the Legislature. 50 Cal.4th at 1041. The Court, however, held that the Legislature, through budget legislation, had ratified the furloughs implemented pursuant to the 2008 and 2009 Executive Orders. Id. at 1043, 1047-48. The Court did not rule on the validity of the Governor’s July 28, 2010 furlough order. Id. at 1008. After the Supreme Court’s decision in Professional Engineers became final, the Supreme Court remanded this matter to this Court. JA, p. 1637. At the request of PECG and CAPS, this Court subsequently remanded the cases to the trial court for further proceedings in light of Professional Engineers, the enactment of the 2010 Budget Act, and other intervening developments. JA, p. 2558. On remand to the trial court, and in light of intervening developments, PECG and CAPS filed amended writ petitions challenging

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the legality of the furloughs in light of the Supreme Court’s holding that the Governor could not unilaterally impose furloughs without proper authorization from the Legislature. JA, pp. 1640-75, 1676-1727. In briefing the petitions, PECG and CAPS challenged three aspects of the furlough program that were not addressed by Professional Engineers: (1) the furlough of employees at state agencies that do not receive appropriations through the Budget Act, and thus for whom the Budget Act could not have constituted legislative ratification of the furlough program; (2) the furlough of employees in positions involved with military base remediation and hazardous material management at the Department of Toxic Substance Control (“DTSC”) and the State Water Resources Control Board (“SWRCB”), positions that are protected from any form of personal services limitations by Health and Safety Code §25353.5 and Water Code §13177.7; and (3) the furlough of employees in Bargaining Units 9 and 10 in March 2011, after the percentage reduction to their compensation for fiscal year 2010-2011 came level with the reductions to nonrepresented employees’ compensation, such that the furloughs exceeded the authorization set forth in the 2010 Budget Act. JA, pp. 2386-88. The trial court ruled in favor of PECG and CAPS on all three grounds. JA, pp. 3100-13. Appellants do not challenge the trial court’s ruling on the first ground, with respect to agencies that do not receive appropriations through the Budget Act. JA, pp. 3206-39; AOB p.4 n.2. ARGUMENT I. Mandamus Relief is Appropriate to Remedy the Furloughing of Employees that Exceeded Legislative Authorization As a threshold matter, Appellants erroneously contend that writ relief is unavailable in this action. It is well established that the proper method of

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obtaining judicial review of most public agency decisions is by instituting a proceeding for writ of mandate. Bodinson Mfg. Co., 17 Cal.2d at 328-30. “Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy; the respondent has a duty to perform; and the petitioner has a clear and beneficial right to performance.” Payne v. Superior Court (1976) 17 Cal.3d 908, 925. Writ relief is specifically appropriate “to correct those acts and decisions of administrative agencies which are in violation of law, where no other adequate remedy is provided.” Bodinson Mfg. Co., 17 Cal.2d at 329. As detailed below, writ relief is appropriate here because Appellants’ implementation of the furlough program exceeded any legislative authorization of those furloughs, and violated Appellants’ clear, present, non-discretionary, ministerial obligations under the Water Code, Health and Safety Code, and the 2010 Budget Act. Mandamus is therefore an appropriate vehicle to determine whether Appellants’ administrative actions comply with the Legislature’s enactments. See also California Attorneys v. Brown (2011) 195 Cal.App.4th 119, 127 (writ of mandate directing Governor to set aside Executive Order insofar as it conflicted with statutory prohibition on furloughs of certain employees). Appellants nevertheless contend that writ relief is inappropriate because this action is merely “a wage dispute between . . . state employees and the state employer.” AOB 17. Although a claim for money damages, including back pay, is sometimes construed as a legal remedy, the overwhelming weight of authority establishes that mandamus relief is available where, as here, an obligation to pay money rests upon an official’s actions and “‘disputes as to the proper construction of a statute or ordinance defining or giving rise to the exercise of official duty.’” California Teachers’ Ass’n v. Governing Bd. of Gustine Unified Sch. Dist. (1983) 145

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Cal.App.3d 735, 747 (quoting Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190, 198); see also Coan v. State of California (1974) 11 Cal.3d 286, 291 (“Although a claim for payment of salary is in effect a money claim, mandamus is a proper remedy where the dispute concerns the proper construction of a statute or ordinance giving rise to the official duty to pay the salary claim.”). These cases also emphasize that mandamus is appropriate not only where there is a need for judicial construction of the statute or ordinance giving rise to the official duty, but also because there may be a need to obtain “official cooperation” to ensure payment. Tevis, 43 Cal.2d at 198; see also Holt v. Kelly (1978) 20 Cal.3d 560, 565 n.5 (“[M]andamus may be brought to start the chain of action designed to compel a ministerial duty by a public officer, even if the ultimate goal may be recovery of a sum of money.”); Glendale City Employees’ Ass’n, Inc. v. City of Glendale (1975) 15 Cal.3d 328, 343 (“often the payment of the wages of a public employee requires certain preliminary steps by public officials”) (emphasis in original). Courts thus repeatedly have held that writ relief may properly be obtained to ensure public officials comply with their legal obligations, even when such compliance results in a back pay award. See, e.g., id. at 343-44 (mandamus appropriate to compel city employer to pay wages in accordance with duties established in collective bargaining agreement); Sanders v. City of Los Angeles (1970) 3 Cal.3d 252, 259-62 (granting writ relief to obtain back pay where city failed to comply with legal obligation to adjust salaries); Cal. Sch. Employees Ass’n v. Torrance Unified Sch. Dist. (2010) 182 Cal.App.4th 1040, 1044 (writ of mandate proper for addressing wage claims by school district employees where dispute was based on alleged statutory duty); Fugitt v. City of Placentia (1977) 70 Cal.App.3d

9

868, 876 (“Mandamus is proper to compel the payment of back salary to a city employee for the period during which he was wrongfully discharged.”); Reinbold v. City of Santa Monica (1976) 63 Cal.App.3d 433, 438 (action for payment of accumulated sick leave properly brought as a writ proceeding where lack of payment was caused by improperly excluding petitioner from bargaining unit; and mandamus relief appropriate “to compel public officials to do what is necessary to make payment to employees”); see also Bunnett v. Regents of Univ. of Cal. (1995) 35 Cal.App.4th 843, 849 (university’s denial of certain monetary retirement benefits should have been brought as an action for ordinary mandate, not a civil action); Berkeley Unified Sch. Dist. v. City of Berkeley (1956) 141 Cal.App.2d 841, 845-46 (where auditor withheld school funding based on erroneous conception of his duties, writ of mandate more appropriate than simple action for money, as it “better comports with the dignity of public officials who stand by their duties as they see them, [and it] also carries through to conclusion by directing issuance of a warrant”).4

Pomona Police Officers’ Association v. City of Pomona (1997) 58 Cal.App.4th 578, cited by Appellants (AOB 16), provides a useful contrast. There, the court held that a union’s claim for economic benefits was a claim for damages for which there was an adequate remedy at law through a breach of contract action. 58 Cal.App.4th at 590. At issue was an agreement between the union and the city to convert certain portions of retirement contributions to salary for retirement purposes. Id. at 582-83. When the agreement could not be implemented because of existing statutory constraints, and the parties could not agree on terms of a new agreement, the union sought a writ to compel the city to “provide an economic benefit equivalent” to what had been contemplated in the original agreement. Id. at 590. The Court of Appeal affirmed the denial of a writ, finding that the union’s claim was in essence a breach of contract action. Id. The court acknowledged the established exception for wage claims involving disputes (continued...) 10

4

While Appellants concede that writ relief may be had in some circumstances to compel public officials to pay employees’ salaries, they contend writ relief is proper only when the legal duty at issue is the specific duty to pay those salaries. AOB 18-20. As an initial matter, even assuming that Appellants’ proposed narrow rule was supported by the case law (which it is not), the statutes at issue in this case do establish the obligation to pay salaries. Specifically, both Water Code §13177.7(b) and Health and Safety Code §25353.5(b) prohibit the reduction in salaries through “personal services limitations, including any position reductions.” And the 2010 Budget Act – the source of the other statutory obligation at issue – establishes the amount by which employees’ salaries may be reduced through furloughs. Thus, all of the legal obligations at issue directly control Appellants’ ability to reduce the hours and salaries of employees represented by PECG and CAPS.5
4

(...continued) “as to the proper construction of a statute,” but held it did not apply to the case. Id. (noting that in cases where exception does apply, “ultimate effect of a decision may be to adjudicate a money claim”). Because PECG and CAPS’ claims here do involve the proper construction or application of the legislatively approved furlough program, as well as prohibitions of the Water Code and Health and Safety Code, they are a proper subject for a mandamus action. In the trial court, Appellants argued that their statutory obligations are not “present” because the last furloughs occurred in 2011. Appellants appear to have abandoned that argument on appeal. In any event, it lacks merit. As a general matter, the requirement that there be a “present duty” stems from the fact that mandamus will not lie where the act complained of has not yet occurred and is thus contingent or speculative. See, e.g., Treber v. Superior Court (1968) 68 Cal.2d 128, 134 (rule that there must be a present duty “is most commonly invoked in denying an application to compel the performance of future acts”); Brown v. Superior Court (2011) (continued...) 11
5

Moreover, Appellants’ argument relies on an overly narrow view of the types of legal obligation that may be involved in mandamus proceedings with related wage claims. See AOB 20 (contending “the legislative enactments which are the subject of the court’s review must create the very duty to pay the salary claim which is before the court”). The case law simply does not support such a constrained reading. Appellants base their argument on a single statement in Coan, 11 Cal.3d at 291, that “mandamus is a proper remedy where the dispute concerns the proper construction of a statute or ordinance giving rise to the official duty to pay the salary claim.” (Emphasis added.) While this is true as far as it goes, other cases establish that the availability of writ relief is broader and that a mandamus action over a public employee’s salary is appropriate whenever the claim turns on

(...continued) 199 Cal.App.4th 971, 995 (denying writ relief related to unused furlough days where potential duty to pay for those days contingent on future events); Fitch v. Justice Court of Anderson Valley Judicial Dist. (1972) 24 Cal.App.3d 492, 495 (“[M]andate [will not] lie to perform a future duty if no present duty to perform exists.”). Although the requirement that a present duty exists “is equally applicable to acts which it is too late to perform,” that generally occurs only when the party required to act has lost jurisdiction to do so. See, e.g., Treber, 68 Cal.2d at 134; Cal. Ass’n of Health Facilities v. Dir., Dep’t of Health Servs. (1986) 178 Cal.App.3d 1109, 1114 (to accept contention there is no present duty because statutory deadline for implementing program had passed “would encourage others to ignore a deadline in order to argue that their duty to act had been extinguished”; duty too late to perform only “where the party in question no longer ha[s] the legal authority to act” (emphasis in original)). Appellants have not, and cannot, claim that they lack legal authority to comply with a court order in this case. Finally, the numerous cases discussed above, supra at pp. 9-10, where writ relief was granted to award back pay, conclusively demonstrate that an official’s failure to fulfill mandatory obligations to make salary payments in the past gives rise to a “present duty” for purposes of mandamus. 12

5

“construction of a statute or ordinance defining or giving rise to the exercise of official duty.” Tevis, 43 Cal.2d at 198; see also California Teachers’ Ass’n, 145 Cal.App.3d at 747. Thus, for example, the California Supreme Court in Bannerman v. Boyle (1911) 160 Cal. 197, held that mandamus was appropriate to compel back pay from an auditor where the failure to pay was based on the auditor’s belief that the petitioner had been removed from his position during the relevant period. The central legal issue was whether the mayor had met requirements of the city charter for removing the petitioner from his position. Id. at 203-08. Mandamus was proper even though the removal provisions of the charter arguably did not create the duty to pay petitioner’s salary. But there, as here, the failure to comply with mandatory legal requirements necessarily gave rise to an obligation to provide back pay, and that claim was properly adjudicated in a mandamus proceeding. Id. at 209. Appellants also erroneously attempt to characterize PECG and CAPS’ claims as a challenge to Appellants’ exercise of discretion. AOB 20-21. But PECG and CAPS bring distinct challenges to aspects of the furlough program, each of which is based on the contention that the furloughs exceeded the scope of any valid legislative authorization. These challenges to the administrative actions of the Governor and DPA do not relate to any exercise of judgment or discretion. Rather, they are claims that executive officials erred in implementing ministerial duties when they furloughed employees in excess of any legislative authorization to do so. Thus, Appellants’ repeated assertion that “the Legislature’s ratification of state employee furloughs through the various budget acts ‘simply represents an exercise of the Legislature’s reserved authority over state employee compensation’” (AOB 21 (quoting Professional Engineers, 50 Cal.4th at

13

1050-51) (emphasis added)), is simply not relevant. Finally, Appellants erroneously contend that the trial court granted the writ, rather than requiring the filing of a damages action, simply as a matter of judicial economy. While the trial court “observe[d]” in passing that “in light of the procedural history of this case, it would be inappropriate, unfair, and a waste of the litigants’ and the courts’ resources to dismiss the petition and require [PECG and CAPS] to file a new complaint pursuing the very same claims in an action at law,” the court did not base its ruling solely on that observation. Rather, the court clearly and (as detailed above) correctly held that “[w]rit [r]elief is [a]vailable and [a]ppropriate.” JA, pp. 3103, 3104. But cf. California Teachers’ Ass’n, 145 Cal.App.3d at 748 (where legal entitlement to compensation was the proper subject of mandamus action, petitioner not required to bring separate action at law to recover funds; “all of the issues can best be handled as part of one proceeding before one judge”).6 II. The Trial Court Correctly Held that Employees Represented by PECG and CAPS Performing Military Base Remediation and Hazardous Material Management Could Not Lawfully Be Furloughed Without Violating the Single Subject Rule of the California Constitution The trial court correctly concluded that the Budget Acts did not lawfully ratify the furlough of employees protected by Health and Safety

Even if the trial court erroneously had based its decision solely on the fact that granting writ relief was more expeditious (which it did not), the Court should nevertheless affirm the judgment, as writ relief is undeniably proper. Troche v. Daley (1990) 217 Cal.App.3d 403, 407 (“[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.” (quotation marks and citation omitted; alteration in original)). 14

6

Code §25353.5 and Water Code §13177.7 because such ratification would violate the single subject rule contained in section 9 of article IV of the State Constitution. JA, pp. 3106-11. Appellants do not dispute, nor could they, that the Governor lacked authority unilaterally to impose unpaid furloughs on state employees. In accordance with the rule of Professional Engineers, the Governor’s furloughs were lawful only if and to the extent they were approved by the Legislature. 50 Cal.4th at 1041, 1050-51. Appellants thus rely on the Revised 2008, 2009 and 2010 Budget Acts as the source of legislative approval of the furloughs of the 255 state employees represented by PECG and CAPS who worked in positions that, during the time the challenged furloughs were in effect, received non-state funding to perform military base remediation and hazardous substance management. AOB 28-29; see also JA, pp. 2409-11.7 The problem with Appellants’ reliance on the budget legislation is that these military base positions were protected from furloughs by provisions of the Health and Safety Code and Water Code that expressly prohibit the Controller and the Department of Finance from imposing “any . . . personal service limitations” of any kind on the positions. Health & Safety Code §25353.5(b); Water Code §13177.7(b). Therefore, to the extent any of the Budget Acts purported to authorize the furlough of personnel in these statutorily protected positions, they ran afoul of the Constitution’s single subject rule.

Appellants have not disputed that PECG and CAPS represent employees who worked in positions covered by Health and Safety Code §25353.5(b) and Water Code §13177.7(b), and were furloughed pursuant to the Executive Orders. 15

7

Under California’s single subject rule, a Budget Act may not “substantively amend and change existing statute law.” Professional Engineers, 50 Cal.4th at 1049 (internal citations and formatting omitted); see also Cal. Const., art. IV, §9. Appellants attempt to hide from this single-subject problem, arguing first (and for the first time), that Health and Safety Code §25353.5 and Water Code §13177.7 do not actually protect employees working in military base remediation positions from furloughs; and second, that the Budget Acts’ authorization of furloughs of employees in protected positions had no effect on the existing statutory protections, and thus comports with the single subject rule. As detailed below, neither of these arguments has any merit. A. Health and Safety Code §25353.5 and Water Code §13177.7 Prohibit the Unpaid Furloughing of State Employees Performing Military Base Remediation and Hazardous Material Management

The trial court properly held that the Health and Safety Code §25353.5 and Water Code §13177.7 protect employees in the covered military base remediation positions against furloughs. JA, p. 3108. Specifically, the court held that furloughing of employees in covered positions was the imposition of “personal services limitations” prohibited by the statutes. Id. In the trial court, Appellants did not dispute that the furloughs constituted “personal services limitations” within the meaning of Health and Safety Code §25353.5(b) and Water Code §13177.7(b). JA, p. 3106. Thus, Appellants’ complaint that the trial court did not engage in a lengthy analysis of this issue (AOB 25), is not well taken. In any event, Appellants’ late objection to the plain meaning of these statutes is without merit. The statutory language, as well as the legislative history, confirm that the 16

Legislature plainly intended Health and Safety Code §25353.5 and Water Code §13177.7 to insulate state employee positions related to military base clean-up from the vagaries of budget battles and across-the-board reductions to agencies’ budgets such as those occasioned by the furloughs. Health and Safety Code §25353.5(b) and Water Code §13177.7(b) both prohibit the Controller and the Department of Finance from “impos[ing] any hiring freeze or personal services limitations, including any position reductions, upon any direct or indirect position” at DTSC and the SWRCB relating to the oversight and support of hazardous substance management and remediation work at military bases. Health & Safety Code §25353.5(b); Water Code §13177.7(b). Because the statutes refer to “personal services limitations” as “including[,]” but not limited to “any position reductions[,]” the Legislature’s use of the term must be construed as encompassing personal services limitations beyond the reduction of covered positions. “Personal services” refers generally to employment. See Stone v. Bancroft (1902) 139 Cal. 78, 82 (describing contract of employment as one for “personal services”). Thus, “any . . . limitations on personal services” is plainly read as including any restrictions of employee time or services, including those caused by the furloughs. See Green v. State of Cal. (2007) 42 Cal.4th 254, 260 (language should be given its “usual and ordinary” meaning). “Personal services” also has a specific and commonly understood meaning in the context of state budgets. See Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1261 (“The meaning of the words of a statute is determined with reference to the context in which the words are used.”); see also People v. Carter (1996) 48 Cal.App.4th 1536, 1540 (“Ordinarily words used in a statute are presumed to be used in accordance

17

with their established legal or technical meaning.”). The “personal services” budgets of state agencies cover employee compensation. See Governor’s Feb. 20, 2009 Veto Message re: 2009 Budget Act, pp. 2, 4, 5, 7, 9, attached as Exh. B to Decl. of Barbara J. Chisholm in Support of Plaintiffs-Respondents’ Request for Judicial Notice (“Chisholm Decl.”); see also Chisholm Decl., Exh. A, p. 54 (Department of Finance summary of 2008 Budget Act describing reductions in “departmental personal services budgets”); Brown v. Chiang (2011) 198 Cal.App.4th 1203, 1226 (quoting State Controller’s arguments referring to reductions in budgeted employee compensation as “‘cutbacks in . . . personal service budgets’”). Thus, and as Governor Schwarzenegger’s own 2009 budget veto message reflects, reductions to an agency’s “personal services budget” encompass “state employee compensation reduction[s] for furloughs.” Chisholm Decl., Exh. B, pp. 2, 5, 9, 11. The accepted meaning of “personal services” in the budgetary context properly informs the reading of Health and Safety Code §25353.5(b) and Water Code §13177.7(b), in particular because the statutes were enacted with the intent of insulating covered positions from acrossthe-board budget cuts. This is reflected in the statutes’ legislative history, as well as in other provisions of the statutes. Both Code sections were enacted in 2003 in a single bill. JA, pp. 2678-82 (A.B. 1700). At the time of their enactment, not only was there a state hiring freeze in place (implemented pursuant to an Executive Order), but there was a proposed 10 percent across-the-board cut to state personnel that would have affected the covered positions. See JA, p. 2687 (Sen. Appropriations Comm., Fiscal Summary of A.B. 1700 (2003-04 Reg. Sess.), as amended Aug. 18, 2003); JA, p. 2684 (Assem. Floor Analysis of

18

A.B. 1700 (2003-04 Reg. Sess.), as amended Sept. 2, 2003). The Senate committee analysis explained that, if these across-the-board cuts were applied to positions involved in military base clean-up projects, the State would be required to return current federal funding and would lose future federal funding for military base remediation projects. JA, p. 2687 (noting intent to “preserve federal funds going to California to pay for [military base] clean-up”). Therefore, to avoid such losses as a result of across-theboard cuts, the statutes expressly “[e]xempt certain positions within [DTSC] and [SWRCB] from any hiring freezes and staff cutbacks.” JA, p. 2684 (Assem. Floor Analysis of A.B. 1700).8 See also JA, p. 2684 (Sen. Appropriations Comm., Fiscal Summary of A.B. 1700: bill would “exempt [covered] positions from hiring freezes or other personal services limitations”). That Health and Safety Code §25353.5 and Water Code §13177.7 were intended to insulate the covered positions from the effects of budget legislation is also reflected in subdivision (c) of the statutes. Those subdivisions direct the Controller and Department of Finance to exclude

By describing the statutory language, which prohibits “freeze[s] or personal services limitations,” as exempting covered positions “from any hiring freezes and staff cutbacks,” the Assembly floor analysis mirrored the language of Insurance Code §11873(c), which prohibits “any freezes and staff cutbacks. . . .” The Legislature thus clearly understood Health and Safety Code §25353.5(b) and Water Code §13177.7(b) to have an effect similar to Insurance Code §11873(c). In California Attorneys v. Brown, supra, 195 Cal.App.4th at 126, this Court held that Insurance Code §11873(c)’s prohibition on “‘staff cutbacks’” encompassed reductions in employees’ hours caused by the furlough program. The protections of the Health and Safety Code and Water Code should be construed accordingly. See People v. Lamas (2007) 42 Cal.4th 516, 525 (“similar statutes should be construed in light of one another”) (internal quotation marks omitted). 19

8

covered positions and “the specific amounts” associated with the positions from the relevant state agencies’ “base for purposes of calculating any budget or position reductions required by any state agency or any state law.” Health & Safety Code §25353.5(c); Water Code §13177.7(c). As such, to the extent budget legislation (or any other state law) purports to require reductions to an agency’s personal services budget, the statutes expressly require that the amounts associated with covered positions be excluded from such reductions. Thus, consistent with the common usage of the term “personal services” as referring to budget items covering employee compensation, and consistent with the Governor’s own acknowledgment that furloughs constituted a reduction to personal services (Chisholm Decl., Exh. B, pp. 2, 5, 9, 11), there can be no doubt that Health and Safety Code §25353.5(b) and Water Code §13177.7(b) prohibit the imposition of furloughs on employees in covered positions.9 B. The Budget Acts Could Not Ratify the Furlough Program Because Any Such Ratification Would Violate the Single Subject Rule

Appellants argue that the Legislature, through the Revised 2008 Budget Act, and the 2009 and 2010 Budget Acts, ratified the furlough of all state employees covered by then-Governor Schwarzenegger’s Executive

Appellants also argue that Health and Safety Code §25353.5 and Water Code §13177.7 do not protect the covered positions from furloughs because the statutes prohibit only the Controller and Department of Finance from imposing personal services limitations. AOB 25-28. This, however, is an argument relevant to the effect of the Legislature’s purported authorization of the furloughs on the protections offered by the Health and Safety and Water Codes, and is therefore addressed below, infra at pp. 2526, in the context of the single subject rule analysis. 20

9

Orders, including those in positions involving military base remediation activities and covered by Health and Safety Code §25353.5 and Water Code §13177.7. But such ratification is ineffective, as it would violate the single subject rule set forth in the California Constitution.10 Article IV, section 9 of the California Constitution requires that every statute “embrace but one subject, which shall be expressed in its title.” Cal. Const., art. IV, §9. As this Court has explained, the single subject rule grew out of a concern with ensuring that “rider” provisions not “‘slip[] through’” as part of unrelated legislation, especially where they may “‘not have carried if the legislative mind had been directed to them.’” Planned Parenthood Affiliates of Cal. v. Swoap (1985) 173 Cal.App.3d 1187, 1196 (quoting Ex parte Hallawell (1909) 155 Cal. 112, 114). A Budget Act is “fully subject to scrutiny under the single subject rule.” California Labor Fed., AFL-CIO v. Occupational Safety & Health Standards Bd. (1992) 5 Cal.App.4th 985, 991; see also Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1100-01 & n.23 (applying single subject rule to bill purporting generally to address “fiscal affairs”). The single “subject” of any Budget Act is “the appropriation of funds for government operations, and [the Budget Act] cannot constitutionally be employed to expand a state agency’s authority, or to ‘substantively amend[] and chang[e] existing statute law.’” California Labor Fed., 5 Cal.App.4th at 991 (quoting Swoap, 173 Cal.App.3d at 1198); see also San Joaquin

Appellants complain that the single subject issue was raised for the first time in the trial court in PECG and CAPS’ reply brief. AOB 29 n.5. But as the trial court correctly noted, the issue was squarely presented by the unions’ opening brief, which explained that reading the budget legislation to authorize the furloughs would violate the Constitution’s single subject rule. See JA, pp. 2395, 3106. 21

10

Helicopters v. Department of Forestry (2003) 110 Cal.App.4th 1549, 1558 (“Budget bills that substantively change existing law violate the singlesubject rule.”). For purposes of this analysis, “conflict with existing law is neither an essential, nor even a normal attribute of an amendment.” Franchise Tax Bd., 80 Cal.App.3d at 776. Rather, “[a]n amendment is . . . any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form[.]” Id. (internal quotations omitted). For example, under the single subject rule, the Legislature may not in a budget bill constitutionally grant authority to a state agency that the agency does not otherwise possess. Professional Engineers, 50 Cal.4th at 1049. Thus, as this Court has explained, the test of whether a Budget Act unconstitutionally effects an amendment of existing law for purposes of the single subject rule: is determined not by title alone, or by declarations in the new act that it purports to 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 clarify or correct uncertainties which arose from the enforcement of the existing law, or to reach situations which were not covered by the original statute, the act is amendatory, even though in its wording it does not purport to amend the language of the prior act. Swoap, 173 Cal.App.3d at 1199 (emphasis in original; quotation marks omitted), quoted in California Labor Fed., 5 Cal.App.4th at 991.

22

The Budget Acts’ authorization of furloughs of employees in positions performing military base remediation and hazardous substance clean-up squarely contradicts the mandate of Health and Safety Code §25353.5 and Water Code §13177.7 that these positions not be reduced or limited, and thus violates the single subject rule. In California Labor Federation v. Occupational Safety & Health Standards Board, supra, this Court held that provisions of a Budget Act were an invalid amendatory enactment in violation of the single subject rule. 5 Cal.App.4th at 994-95. The Budget Act provisions at issue established a cap on the hourly rate the State would pay toward certain categories of attorney fee awards against state agencies. Id. at 991-92. The Court explained that existing law, Code of Civil Procedure §1021.5, “contain[ed] an implicit ‘cap’ of its own” by limiting a party to recovering a “‘reasonable’” fee, and that the “budget restrictions purport to impose a wholly different cap . . .,” and thus were “a markedly different substantive measure.” Id. at 994-95; see also Homan v. Gomez (1995) 37 Cal.App.4th 597, 601 (budget restriction violated single subject rule where it restricted and “amend[ed] regulations which provide[d] for family leave for all qualified prisoners”). Here, the Budget Acts’ purported authorization of furloughs of employees working on military base remediation projects is “wholly different” from the statutory protections afforded these employees by the Health and Safety Code and Water Code. California Labor Fed., 5 Cal.App.4th at 994-95. Indeed, a “comparison of [the Budget Acts’] provisions with existing law” (Swoap, 173 Cal.App.3d at 1199), reveals directly conflicting mandates. On the one hand, the Budget Acts authorize the furloughs and direct the Director of Finance to make corresponding

23

reductions to employee compensation. See Revised 2008 Budget Act, S.B.3X 2, §3.90(a); Revised 2009 Budget Act, A.B.4X 1, §552 (amending §3.90 of the original 2009 Budget Act); 2010 Budget Act, S.B. 870, §3.91(b). On the other hand, the preexisting Health and Safety Code and Water Code provisions, prohibit the Department of Finance from instituting furloughs of employees in covered positions, and, further, require the Department to exclude covered positions and associated budget amounts from the relevant agencies’ budget “for purposes of calculating any budget or position reductions required by . . . any state law.” Health & Safety Code §25353.5(b), (c); Water Code §13177.7(b), (c). By attempting to override and change these instructions to the Department of Finance, there can be no question that the Budget Acts’ authorization of furloughs changes the effect of existing law and is an amendatory enactment in violation of the single subject rule. But even if the Budget Acts’ authorization of the furloughs of employees in protected positions did not directly conflict with the mandate of the Health and Safety Code and Water Code provisions (which it does), there can be no question that the Legislature’s authorization of the furloughs “changes . . . the scope [and] effect” of those statutory protections. Franchise Tax Bd., 80 Cal.App.3d at 776. It is well established that budget legislation can modify the effect of existing laws even when it does not directly conflict with those laws. For example, in Planned Parenthood v. Swoap, supra, the budgetary provisions at issue purported to prohibit the allocation of any funds appropriated to the Office of Family Planning to any group promoting abortion services. 173 Cal.App.3d at 1191. Existing statutes provided for the Office to engage in family planning education and services, and the Court concluded that “the

24

budget restriction was impermissibly amendatory, for even if it did not flatly contradict the family planning statutes it sought to ‘clarify’ them, and to ‘impose[] substantive conditions that nowhere appear in existing law.’” California Labor Fed., 5 Cal.App.4th at 994 (discussing and quoting Swoap, 173 Cal.App.3d at 1201) (emphasis added). The Court explained that the Budget Act could not properly restrict activities that were authorized under existing law. Swoap, 173 Cal.App.3d at 1201. Similarly, in California Labor Federation, supra, the Court noted that even if the existing law were “viewed as ambiguous” and open to judicial interpretation, such that it would not directly conflict with the Budget Act, “the provisions [of the Budget Act] [were] amendatory for purporting to supersede the judicial resolution of that ambiguity with a legislative ‘clarification’ set forth as an appropriation.” Id. at 995. Appellants here argue that the Budget Acts did not change the effect or scope of existing protections under the Health and Safety Code and the Water Code because the Legislature has “reserved authority to alter state employee compensation.” AOB 32-33. Under Appellants’ theory, the Budget Acts do not have an amendatory effect because Health and Safety Code §25353.5 and Water Code §13177.7 do not restrict the authority of the Legislature to furlough, and only impose obligations on the Director of Finance and the Controller. But the question for this Court is not whether the Legislature has the authority to implement furloughs. Rather, it is whether the Legislature’s attempt to do so in budget legislation modified the scope of existing law. See California Labor Fed., 5 Cal.App.4th at 995-96 (“reiterat[ing] that the Legislature is presumptively free to limit” existing law, but that “[w]hat the Legislature may not do” is to enact existing law granting a right, and then

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“retract or impair th[at] right . . . through amendments masquerading as Budget Act provisions”).11 Even if the Health and Safety Code and Water Code provisions are read as Appellants urge – i.e., as impliedly reserving to the Legislature the authority to impose the otherwise prohibited limitations on personal services – the Budget Acts still have a prohibited amendatory effect. By authorizing the Department of Finance to implement furloughs that theretofore the Department was statutorily prohibited from undertaking, the Budget Acts undoubtedly “impose[] substantive conditions that nowhere appear[ed] in existing law.” Swoap, 173 Cal.App.3d at 1201. This is no different from the situation in Swoap, wherein the Office of Family Planning was authorized by existing law to appropriate money for family planning, and then was instructed through budget legislation not to appropriate money to organizations supporting abortions. Id. at 1199-1201. The authorization of furloughs of employees performing military base remediation work is a new, substantive provision that certainly was not

Of course, it is always the case the Legislature has the power to amend a statute or to enact other legislation that would affect existing statutes. To the extent the Legislature wants both to dictate appropriations for a particular subject and to change or clarify the effect of existing law, nothing prevents it from including provisions in budget legislation and passing a companion bill to make the statutory changes necessary to implement the provisions in the budget legislation. Indeed, this is exactly what the Legislature did in passing the amended 2012-13 Budget Act, which authorized the furlough of certain state employees. A.B. 1497, §3.90 (Chapter 29, Stats. of 2012). The Legislature also passed a trailer bill (S.B. 1006, Chapter 32, Stats. of 2012), which made substantive revisions to existing statutes, including an amendment to Insurance Code §11873, which generally exempts employees at the State Compensation Insurance Fund from furloughs, to allow furloughs during Fiscal Year 2012-13. See S.B. 1006, §26. 26

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present in existing law. There is no escaping the fact that the Budget Acts, by authorizing furloughs of employees in statutorily protected positions, had the effect of amending existing substantive law.12 Appellants rely on Professional Engineers for their suggestion that the Legislature’s “reserved authority” over employee compensation somehow immunizes the Budget Acts’ authorization of furloughs from scrutiny under the single subject rule. AOB 32-33. But nothing in Professional Engineers alters the traditional single subject rule analysis. There, the Court held that the Budget Act did not “substantively amend or change” Government Code §19826. 50 Cal.4th at 1049-50.13 Section 19826, however, did not authorize or prohibit furloughs, or provide any instructions at all to the Executive Branch regarding such furloughs; rather, as the trial court found, it simply “gave the DPA authority to negotiate salaries and left the last word to the Legislature.” JA, p. 3110. Thus, there was no conflict with Section 19826 when the Legislature ratified the furloughs. 50 Cal.4th at 1051. Here, in contrast, the Legislature’s furlough of employees in protected military base positions undisputably affects and undermines the scope of existing substantive protections offered by the

Nor would it work for Appellants to argue that the Budget Acts simply clarify the Legislature’s reserved authority to furlough employees in the protected provisions. As in Swoap, such a clarification that purports to “reach situations which were not covered by the original statute” is a prohibited amendatory enactment. 173 Cal.App.3d at 1201 (quotation marks omitted). Professional Engineers did not consider whether legislative authorization of the furloughs presented a single-subject problem with respect to employees in positions covered by Health and Safety Code §25353.5 and Water Code §13177.7; nor was that issue presented to the Court. 27
13

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Health and Safety and Water Code provisions, protections that were intended to insulate the covered positions in the event of a budget crisis. Finally, Appellants try to contrast the Code sections at issue here with the Insurance Code provision that was held in California Attorneys, supra, to prohibit the furloughing of affected employees, arguing that the Insurance Code provision exempted employees from hiring freezes and staff cutbacks “notwithstanding any other provision of law,” where the protections for military base remediation do not. AOB 27. But this argument ultimately proves too much. The point of the single subject rule is that the Legislature cannot, through budget legislation, change the effect of existing laws. Whether budget legislation has a prohibited amendatory effect on existing law simply does not depend on whether that law applies “notwithstanding” any other laws.14 In sum, Appellants’ attempt to avoid the single subject rule problem is unavailing. By ratifying the Governor’s furlough program through the Budget Acts, the Legislature – perhaps unwittingly – impermissibly affected the existing substantive protections for military base remediation positions provided by Health and Safety Code §25353.5 and Water Code §13177.7. Cf. Swoap, 173 Cal.App.3d at 1191, 1193 (giving effect to provision in Budget Act that was included as a result of clerical error before finding provision violated single subject rule). Accordingly, the furloughs of

Of course, the mandate set forth in Health and Safety Code §25353.5(c) and Water Code §13177.7(c), which is also impermissibly modified by the purported authorization of furloughs, does include a similarly broad exemption: it requires the Controller and Department of Finance to exclude covered positions and associated budget amounts when calculating “any budget or position reductions required by . . . any state law.” Health and Safety Code §25353.5(c); Water Code §13177.7(c). 28

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employees working on the military base projects were without lawful authorization and should be set aside. III. The Trial Court Correctly Held that Appellants’ Furloughing of Employees in State Bargaining Units 9 and 10 Through the End of March 2011 Exceeded the Legislature’s Authorization of Reductions to Compensation that Were “Proportionate” to Those of Supervisory Employees In enacting the 2010 Budget Act, the Legislature did not authorize the Governor to make unlimited reductions to represented employees’ compensation. Instead, in Section 3.91(a) of the Act, the Legislature delineated the scope of reductions authorized, requiring that certain “item[s] of appropriation” in the Budget Act: shall be reduced . . . to reflect reductions in employee compensation achieved through the collective bargaining process or through administrative actions for represented employees and a proportionate reduction for nonrepresented employees. . . . S.B. 870 §3.91(a) (JA, p. 2663). It is undisputed that, in fiscal year 2010-11, nonrepresented employees had their compensation reduced by a smaller percentage than the percentage by which the compensation of PECG- and CAPS-represented employees in Bargaining Units 9 and 10 was reduced. Nonrepresented employees had their compensation cut by a total of 8.5 percent during the fiscal year. JA, pp. 2411, 3025. Although the nonrepresented employees were subject to three-day-per-month furloughs in August, September and October of 2010, when the 2010 Budget Act was enacted in October, the Governor reduced the cuts being made to these employees’ compensation. Id. Employees in State Bargaining Units 9 and 10, however, remained subject to the three-day-per-month furloughs throughout the remainder of

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2010, and into 2011. JA, p. 2411. As a result, these employees hit the mark of an 8.5 percent reduction in compensation for the fiscal year after their first furlough day in March 2011. JA, pp. 3025-27. Nonetheless, they were subject to two additional furlough days in March 2011. JA, pp. 2411-12. The trial court correctly held that Appellants exceeded the scope of legislative authorization by imposing furloughs on employees in Bargaining Units 9 and 10 that resulted in reductions to compensation that were not proportionate to the reductions made to nonrepresented employees’ compensation. JA, pp. 3111-13. None of Appellants’ arguments to the contrary have merit. First, Appellants argue that the trial court misapplied the plain meaning of the term “proportionate.” AOB 36. But there is no legitimate disagreement over the meaning of this term. As Appellants acknowledge, “language should be applied pursuant to its plain meaning.” AOB 36; see also Green, 42 Cal.4th at 260. The plain language meaning of “proportionate,” as the trial court explained, is “having the same or constant ratio.” JA p. 3111; see also Merriam Webster Collegiate Dict. (11th ed. 2003), at 997 (defining “proportionate” as synonymous with “proportional,” which is defined as “[a] corresponding in size, degree, or intensity” and “[b] having the same or a constant ratio”). Thus, as Appellants’ counsel explained to the trial court, two items are “proportionate” if they “maintain the same . . . ratio.” JA, pp. 3177-78 (hearing transcript). Here, if reductions to represented and nonrepresented employees’ compensation were to maintain the same ratios, or to be reduced by the same proportions, both groups’ compensation had to be reduced by the same percentage. Second, while acknowledging the plain meaning of the word “proportionate” as “‘having the same . . . ratio,’” Appellants protest that

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“[t]his is not the same . . . as being exactly equal.” AOB at 36. Appellants’ point is confusing. Clearly, the trial court did not hold that the total dollar amounts of reductions to represented and nonrepresented employees’ compensation had to be “exactly equal.” Rather, it held – consistent with the plain meaning of the Budget Act and the term “proportionate” – that the ratio or percentage of the reductions to compensation had to be the same. See JA, p. 3111. Presumably what Appellants mean to argue, despite having conceded that “proportionate” means having the “same” ratio, is that the term should not be read as requiring exactly the same ratios. Or, in other words, “proportionate” need not mean exactly proportionate. See AOB 39 (referring to “minor variance” in reductions). The problem with this argument is that “proportionate” has a plain, precise and ascertainable meaning, and Appellants offer no alternative that would meaningfully constrain their proposed definition. Further, Appellants certainly cannot claim they were incapable of determining when the furloughs would exact cuts from represented employees’ pay that would draw them even with the 8.5 percent reduction to nonrepresented employees’ compensation.15 Nor is it the case, as Appellants suggest, that the requirement of “proportionate” reductions contemplates an exercise of discretion. The

Indeed, the Governor’s actions reflect that he understood the Budget Act as requiring the same percentage reductions to nonrepresented and represented employees’ pay. In his Executive Order S-15-10, issued one day after the Legislature ratified nine MOUs with represented employees, the Governor instituted reductions to compensation that exactly mirrored the 8.5 percent reduction made to the represented employees’ compensation for the 2010-11 fiscal year. JA, p. 2412. 31

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proportionality requirement imposes a specific and precise duty, one that Appellants were “required to perform in a prescribed manner in obedience to the mandate of legal authority[,] . . . without regard to [their] own judgment or opinion.” Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 (internal quotation marks omitted). Appellants point to the fact that the Budget Act authorized overall reductions in employee compensation up to $1,557 million as suggesting that the Legislature granted Appellants broad discretion to figure out how to achieve these reductions. AOB 38-39. But Appellants’ theory would read the proportionality requirement out of the Budget Act altogether. Although the Budget Act identified potential total savings that might be obtained through reductions to employee compensation, it also specifically designated the manner in which those savings had to be achieved – i.e., “proportionate” reductions to represented and nonrepresented employees’ compensation. The requirement of proportionality thus necessarily provides a limitation on the total savings achieved through reductions. Indeed, it would be inconsistent with the scope of the Legislature’s authorization if, as Appellants suggest, the target savings number were read as the only limitation on the permissible scope of reductions for represented and nonrepresented employees. See AOB 38-39. As the trial court explained, “adopt[ing] [such a] structural argument” would “render the word ‘proportionate’ mere surplusage, which is not permitted by fundamental rules of statutory construction.” JA, pp. 3111-12 (citing Bernard v. Foley (2006) 39 Cal.4th 794, 811; Sara M. v. Superior Court (2005) 26 Cal.4th 998, 1023). Although the Legislature, in enacting the Budget Act, allowed

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Appellants leeway to reduce compensation either through collective bargaining or through administrative actions, it imposed a clear limitation on the scope of that authority. Once the Governor’s furlough program extracted the same percentage reductions in compensation from employees in State Bargaining Units 9 and 10 as those taken from nonrepresented employees’ compensation, the furloughs should have ended. They did not, and the continued furloughing thus exceeded the Legislature’s authorization of “proportionate” reductions. Finally, Appellants argue that the legislative history of the 2010 Budget Act supports reading the term “proportionate” as synonymous with “similar.” AOB 37. It does not. As an initial matter, as reflected above, “proportionate” is not ambiguous and there is no need to turn to legislative history. But even when that history is considered, it confirms the trial court’s reading of the Budget Act. Relying on a single phrase by Senator Ducheny, Appellants argue that reductions to nonrepresented employees’ and represented employees’ compensation need only be “similar,” and not proportionate. AOB 37. Although it is true that Senator Ducheny described the anticipated savings from reductions to various employee groups’ employee compensation as “similar,” when taken in context, it is clear the Senator’s remarks did not stray from the plain meaning of the Budget Act.16

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

Of course, a single senator’s comments are not sufficient to override plain statutory language. See Carter v. California Dep’t of Veterans Affairs (2006) 38 Cal.4th 914, 929 (“[A] legislator’s personal understanding of a bill does not indicate the Legislature’s collective intent in enacting that bill.”). 33

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the process of executing new memoranda of understanding (“MOUs”) with SEIU for nine State bargaining units. JA, p. 2412. Thus, during the floor debate on the Budget Act in the Senate, Senator Ducheny explained: [The Budget Act] includes savings in employee compensation that we are pleased, as I think we are waiting for the MOU that will ratify additional agreements with 9 additional bargaining units that brings the total to about 15 of our 21 bargaining units who after today, hopefully will have signed agreements. The savings on employee compensation recognized through this budget, recognizes those contracts and assumes similar savings for other units and nonrepresented employees, some of which if they do not have a contract would be done by the administrative actions like the furloughs the Governor has already imposed. So those savings are acknowledged in this budget. JA, p. 2677 (emphasis added). Senator Ducheny’s reference to “similar savings” for other units and nonrepresented employees is entirely consistent with the notion of proportionality. In this context, anticipated savings would be “similar” precisely because they would be proportionate, i.e., not the same in terms of dollar amounts, but reflecting the same percentage reduction to employees’ compensation. Additionally, what Senator Ducheny’s statement does confirm is that the Legislature’s use of the word “proportionate” referred to the relationship between the reductions made to represented employees’ compensation and those made to non-represented employees’ compensation. In order for these reductions to “have the same ratio” to each other, they needed to reflect the same percentage reduction in compensation. Therefore, the trial court reasonably and correctly held that “proportionate” means “‘having the same or constant ratio,’ which is

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synonymous with the same percentage.” JA, p. 3111. Appellants acted outside the scope of the Legislature’s authorization in continuing to furlough employees in Bargaining Units 9 and 10 through the end of March 2011. The trial court’s judgment setting aside this unlawful action should be affirmed. IV. The Trial Court Reasonably Overruled Appellants’ Objections to Evidence of Reductions to Employees’ Compensation in Fiscal Year 2010-2011 The trial court did not abuse its discretion by overruling Appellants’ objections to PECG’s evidence. “‘A trial court’s exercise of discretion in admitting . . . evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’” San Lorenzo Valley Community Advocates for Responsible Educ. v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419 (quoting People v. Rodriguez (1999) 20 Cal.4th 1, 9-10); see also People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640 (“discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered”) (internal quotation marks omitted); Evid. Code §§353, 354. As an initial matter, Appellants mistakenly state that the trial court found merit to their objections to “paragraphs 16, 17 and 20” of the Declaration of Theodore Toppin, PECG and CAPS’ Legislative Director, which was filed together with the unions’ opening brief in the trial court. AOB 40; JA, p. 2406. Instead, the trial court found that the foundational issues raised by Appellants’ “objections 16-17, and 20” to that declaration had merit, but were “remedied” by a Supplemental Declaration filed by Mr.

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Toppin.17 JA, p. 3102. Appellants’ objections 16-17 and 20 related to paragraphs 28, 29 and 32 of the original Toppin declaration, each of which described the percentage by which the compensation of employees represented by PECG and CAPS was reduced during fiscal year 2010-2011. JA, pp. 2952-53, 2955-56. The Declaration of Theodore Toppin submitted with the unions’ opening brief documented the reductions in compensation made to employees in State Bargaining Units 9 and 10 in fiscal year 2010-2011, and those made to supervisory employees represented by PECG and CAPS (i.e., the so-called “nonrepresented” employees). JA, pp. 2411-12 (¶¶27-31). The declaration explained the size and timing of reductions made to the compensation of employees represented by PECG and CAPS (something to which Mr. Toppin undisputedly could testify), and then provided the percentages by which these employees’ compensation had been reduced for the fiscal year. See id.; see also JA, pp. 2406-07 (describing personal knowledge of furloughs, Executive Orders, and their effects on employees represented by PECG and CAPS). The declaration contained sufficient detail to support these percentages. For example, paragraph 29 of the declaration explained that the supervisory employees represented by PECG and CAPS were first subject to “three-day-per-month furloughs in effect in August, September and October 2010,” or a monthly reduction in compensation of 13.8 percent; and then, as of “November 1, 2010, when Executive Order S-15-10 took effect,” were subject to a “one-day-permonth furlough, which resulted in a 4.6 percent reduction in employees’ salaries, as well as a 3 percent increase in employees’ pension contributions

In fact, Appellants did not object to paragraph 16 of the original Toppin declaration. JA, pp. 2946-47. 36

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each month,” the “overall effect” of which was to reduce compensation “by a total of 7.6 percent each month.” JA, p. 2411. Only after this explanation did Mr. Toppin then state that the combined effect of the August-October 2010 furloughs and the reductions that took effect on November 1, 2010, was a total reduction in compensation “for these employees in fiscal year 2010-2011 [of] 8.5 percent.” Id. Paragraphs 28 and 32 similarly described the size and timing of the reductions to the compensation of employees in Bargaining Units 9 and 10 before providing the resulting total percentage reduction for the fiscal year. See id. (Paragraph 28: describing percentage reduction to compensation of rank-and-file employees represented by PECG and CAPS caused by three-day-per-month furlough program in effect from August 1, 2010 through the end of March, 2010); JA, p. 2412 (Paragraph 32: describing reductions in compensation to rank-and-file PECG- and CAPS-represented employees’ compensation during 2010-2011 fiscal year). Mr. Toppin’s original declaration reflected accurate calculations of the percent reductions in employees’ compensation, based on facts of which he had personal knowledge. See JA, pp. 3060-61, 3063. Appellants did not dispute any of the facts set forth in Mr. Toppin’s original declaration: they did not dispute the dates or scope of the furloughs or the scope of other reductions made to employees’ compensation. Nor did Appellants even dispute the overall percentage reductions identified by Mr. Toppin. Instead, Appellants objected to the paragraphs at issue on the grounds they were conclusory and lacked foundation. JA, pp. 2952-53, 2955-56. Of course, the foundation was contained in the very paragraphs at issue, which described the duration and extent of the reductions at issue before providing the resulting percentage reduction to compensation for the

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fiscal year. JA, pp. 2411, 2412. Thus, Appellants’ objections to the original declaration were without merit. Nonetheless, and out of an abundance of caution, PECG and CAPS submitted a supplemental declaration from Mr. Toppin together with their reply brief. The declaration provided even greater description of the manner in which he had calculated the percentage reductions to employee compensation. Thus, whereas Mr. Toppin’s original declaration had “not include[d], in long form, the mathematical computations [he] did to calculate the various percentages in reductions to employee compensation” (JA, p. 3025), those computations are spelled out in the Supplemental Declaration. JA, pp. 3025-27. But the computations are based on the exact same facts laid out in the original declaration. JA, pp. 2411, 2412. As the trial court found, the Supplemental Declaration simply “further explain[ed] the source of [Mr. Toppin’s] underlying data and the method of calculation.” JA, p. 3112. The trial court did not abuse its discretion by overruling Appellants’ objections to PECG and CAPS’ evidence and reasonably concluding that any “foundational issues” with the percentage reductions in employees’ compensation described in Mr. Toppin’s original declaration were “remedied” by the Supplemental Declaration. JA, p. 3102. The Supplemental Declaration presented no new legal arguments or factual issues. Thus, Appellants’ reliance on cases barring consideration of new issues raised in reply briefs is misplaced and the cases inapposite. See AOB 40-41 (citing Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1022 (court would not consider legal arguments made for first time in reply brief); San Diego Watercrafts, Inc. v. Wells Fargo Bank

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(2002) 102 Cal.App.4th 308, 316 (noting due process concerns where party not “fully advised of the issues to be addressed”)). Appellants were fully on notice of PECG and CAPS’ arguments and evidence as of the time the opening brief and original Toppin declaration were filed. Appellants knew the evidence to be rebutted, i.e., that furloughing employees in Bargaining Units 9 and 10 two additional days in March 2011 resulted in percentage reductions to their compensation for fiscal year 2010-11 that exceeded the percentage of reductions made to nonrepresented employees’ compensation for the fiscal year. Moreover, Appellants knew the underlying facts on which Mr. Toppin was relying for his calculations, namely the reductions to compensation caused by Appellants’ furloughs and the Executive Order governing non-represented employees’ compensation. There were simply no surprises here. Nor can Appellants show that they were prejudiced in any way. Although Appellants filed objections to the Supplemental Declaration (JA, pp. 3065-73), they did not dispute the accuracy of Mr. Toppin’s calculations. Nor did Appellants seek leave from the trial court to file any additional arguments or evidence in response to the Supplemental Declaration. And for good reason: the Supplemental Declaration presented no new evidence or argument to which Appellants needed to respond. Given that Appellants “[did] not challenge the substance of [Mr. Toppin’s] analysis” (JA, p. 3112), and, specifically, did not dispute that the compensation of rank-and-file employees represented by PECG and CAPS was reduced by a greater percentage than that of unrepresented employees in the 2010-11 fiscal year, there is no basis to conclude that the trial court’s evidentiary ruling led to a miscarriage of justice, and thus no conceivable grounds to reverse that ruling. See Wall Street Network, Ltd. v. New York

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Times Co. (2008) 164 Cal.App.4th 1171, 1182-83 (no error in considering amended declaration that cured defect in original declaration where original declaration “identified the substantive evidence” upon which respondents relied, and where although respondents “objected [to the] amended declaration . . ., [they] never identified any prejudice from its admission”); see also Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1193 (court has discretion to consider “additional evidentiary matter submitted with the reply” “when it poses no prejudice to the opposing party”). Under these circumstances, the trial court did not abuse its discretion by overruling Appellants’ evidentiary objections and considering the Supplemental Toppin Declaration. CONCLUSION For the foregoing reasons, the judgment should be affirmed in its entirety, and the Appellants’ furloughs of employees represented by PECG and CAPS that exceeded any lawful legislative authorization set aside.

Dated: February 19, 2013

Respectfully Submitted,

By:

____________________________ Barbara J. Chisholm BARBARA J. CHISHOLM PEDER THOREEN Altshuler Berzon LLP GERALD JAMES Attorneys for Plaintiffs-Respondents

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CERTIFICATE OF COMPLIANCE Pursuant to Rule 8.204(c)(1) of the California Rules of Court, I certify that the foregoing Respondents’ Brief is proportionately spaced, uses a 13-point typeface, and, according to WordPerfect, the word processing program used to generate this brief, contains fewer than 14,000 words, excluding the cover, the certificate of interested parties, the tables, the signature block, and this certificate. Dated: February 19, 2013 By:________________________ Barbara J. Chisholm

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PROOF OF SERVICE Court of Appeal Case No. A136338 I am employed in the City and County of San Francisco, California. I am over the age of eighteen years and not a party to the within action. My business address is 177 Post Street, Suite 300, San Francisco, California 94108. On February 19, 2013, I served the following document(s) as indicated below: PLAINTIFFS-RESPONDENTS’ ANSWERING BRIEF By First Class Mail: I am readily familiar with the practice of Altshuler Berzon LLP for the collection and processing of correspondence for mailing with the United States Postal Service. I placed such envelope, with first-class postage thereon fully prepaid, to be deposited in a recognized place of deposit of the U.S. Mail in San Francisco, California, for collection and mailing to the office of the addressee on the date shown herein. Ross C. Moody Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 E-mail: Ross.Moody@doj.ca.gov Joan A. Markoff Will M. Yamada Department of Personnel Administration 1515 S Street North Building, Suite 400 Sacramento, CA 95811-7258 E-mail: willyamada@dpa.ca.gov Attorneys for State Controller John Chiang

Attorneys for Defendants and Appellants

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David W. Tyra Kristianne T. Seargeant Kronick, Moskovitz, Tiedemann & Girard 400 Capito Mall, 27th Floor Sacramento, CA 95814 E-mail: dtyra@kmtg.com kseargeant@kmtg.com Gerald James Blanning & Baker Associates, Inc. 455 Capitol Mall, Suite 501 Sacramento, CA 95814 E-mail: gjames@pecg.org

Attorneys for Defendants and Appellants

Attorneys for PlaintiffsRespondents Professional Engineers in California Government, Shabbir Ahmed, Terry Escarda, and California Association of Professional Scientists Trial Court

Honorable Steven A. Brick Alameda County Superior Court Administration Building, Dept. 17 1221 Oak Street Oakland, CA 94612 California Supreme Court 350 McAllister Street San Francisco, CA 94612

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed February 19, 2013, at San Francisco, California.

_________________________ Sally Mendez Arevalo

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