Thursday, September 9, 2010
Supreme Court Hears Oral Argument in Challenge to Furloughs
By STEVEN M. ELLIS, Staff Writer
Attorneys for Gov. Arnold Schwarzenegger argued to the California Supreme Court yesterday that the governor did not exceed his authority when he furloughed state employees and used his veto power to further cut budget appropriations already reduced by the Legislature.
The governor’s lawyers rejected arguments challenging Schwarzenegger’s Dec. 19, 2008 executive order which unilaterally imposed mandatory two-day-a-month unpaid furlough. They also said that the governor’s line-item veto power applied to provisions in a mid-year emergency bill that reduced appropriation amounts of a previously enacted budget bill.
The high court heard the arguments in proceedings in San Francisco broadcast live on television and on the Internet by public affairs cable television network The California Channel.
Schwarzenegger ordered the furloughs for over 200,000 state workers in February of last year in response to the state’s ongoing budget crisis. He used his line-item veto power the following July to slash approximately $489 million from health and human services programs and other programs beyond cuts the Legislature had previously approved.
In the furlough case, Professional Engineers in California Government v. Schwarzenegger, S183411, attorneys Patrick J. Whelan, Anne Maria Giese, Gerald Andrew James and Robin B. Johansen challenged the governor’s authority, on behalf of state employee unions and Controller John Chiang.
Whelan—representing the California Attorneys, Administrative Law Judges and Hearing Officers in State Employment—said the governor lacked unilateral authority to order the furloughs, noting that the Legislature twice rejected Schwarzenegger’s requests for authorization. Whelan contended that Schwarzenegger could have laid off workers or imposed a hiring freeze, but said that furloughs were a step too far.
Giese, counsel for the Service Employees International Union, Local 1000, told the justices the governor’s use of Government Code sections dealing with salaries and overtime did not support unilateral furloughs, and declined, when questioned by Justice Carlos Moreno, to concede that furloughs were a less drastic solution than layoffs.
James, representing the Professional Engineers in California Government and the California Association of Professional Scientists, argued that the governor waived his authority to order furloughs by entering into memoranda of understanding with the unions, while Johansen asked the justices to remand the matter back for a determination as to which employees were entitled to pay for days covered by the furloughs, and how much.
Schwarzenegger’s attorney, David Tyra, contended that the governor acted within his implied and inherent powers as the state’s chief executive, and said there was no statute that expressly forbade or limited Schwarzenegger’s authority to furlough state employees. Tyra rejected the argument that the governor’s request for legislation demonstrated a lack of power to order furloughs, and contended that the Legislature ratified the Schwarzenegger’s action by revising the budget downward in an amount equivalent to the money saved by the furloughs.
In the line-item veto case—St. John’s Well Child and Family Center v. Schwarzenegger, S181760, in which the justices were joined by Justice William F. Rylaarsdam of the Fourth District Court of Appeal’s Div. Three, who sat in place of recused Justice Kathryn Mickle Werdegar—arguments centered on whether a reduction of a prior appropriation was itself an “appropriation” that the governor could “reduce or eliminate” under Article IV, Sec. 10(e) of the California Constitution.
Los Angeles attorney Derek Milosavljevic contended on behalf of St. John’s Well Child & Family Center that it was not, arguing that the governor’s only option if he thought the Legislature had not cut deep enough was to call legislators back in a special session for further cuts.
Johansen, this time representing state Senate President Pro Tem Darrell Steinberg, D-Sacramento, and Assembly Speaker John Perez, D-Los Angeles, argued that a conclusion that the Legislature’s reductions constituted a new round of appropriations subject to the governor’s blue pencil would reset the amount state agencies could spend, and argued that the Constitution limited the governor’s role in the budget process.
Deputy Attorney General Ross Moody countered that his opponents erred by injecting the word “new” into the process, contending that an “item of appropriation” under the Constitution was any specified amount of money for a specific public purpose.
Moody—who technically represented both Schwarzenegger and Chiang, but argued only on behalf of the governor’s position, he explained—asserted that the governor was free to further reduce a reduction to an appropriation or to reject that reduction, leading the original full appropriation to spring back into existence. However, he conceded that the governor could not “split the difference” between an original appropriation and a reduced amount set by the Legislature.
He also asserted that the governor’s line-item veto was not “the end of the conversation,” but “the middle,” pointing out that the Legislature by a two-thirds vote restored funds for domestic violence programs after the governor initially used his power to reduce them.
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