The State Worker

Chronicling civil-service life for California state workers

August 25, 2011
The latest on the constitutional officer employee furlough fight

Thumbnail image for Thumbnail image for 100602 yolo county gavel.jpgThree justices from Sacramento's 3rd District Court of Appeal took turns on Wednesday, grilling an attorney who argued that they should overturn a lower court's ruling that constitutional officers' employees should have been furloughed along with other state workers.

Meanwhile, the panel lobbed legal softballs to a Brown administration lawyer who contended that the constitutional furlough issue had substantially changed since Gov. Arnold Schwarzenegger first sued the constitutionals in February 2009 to force them to comply with his furlough order.

Justice Department attorney Mark Beckington, represented Treasurer Bill Lockyer, Secretary of State Debra Bowen, Controller John Chiang and other statewide officials who refused to furlough their combined 16,000 employees.

(Ironically, Gov. Jerry Brown was in that group of 2009 defendants when he was attorney general. Now, as governor, his name replaces Schwarzenegger's as the plaintiff in the case.)

Beckington argued that judgment against the constitutionals must be reversed because "the governor chose to use his veto power" to cut the constitutionals' budgets by as much or more than furloughs would have cut their payroll costs.

"The Legislature clearly didn't intend furloughs and vetos," Beckington said.

But Justice Ronald Robie asked why the constitutionals should be allowed to "thumb their nose" at the Legislature, since the California Supreme Court ruled that furloughs were authorized by budget legislation not by executive power.

"I wouldn't say, 'thumbing their nose,' " Beckington replied.

"I should be more polite," Robie said. "They weren't complying, were they?"


"Thank you," Robie said curtly.

Presiding Justice Vance Raye, Justice George Nicholson and Robie quizzed Beckington for nearly 20 minutes, at times getting testy with what they seemed to believe were the lawyer's conflicting arguments.

When Beckingham argued that the issue of constitutional furloughs had become a moot "historical question," Nicholson said the attorney was "trying to have your cake and eat it too," because he was also pushing the justices to overturn the lower court's ruling.

The justices didn't ask administration attorney David Tyra a single difficult question during his 10-minute argument.

Tyra started by noting that the case had undergone a "paradigm shift" because of the state Supreme Court's 2010 decision that the Legislature, not the governor, had authorized furloughs.

The case isn't moot, Tyra said, because it's now about the Legislature's "prerogative" over budgets vs. constitutional officers' authority. Furthermore, he added, ruling in favor of the constitutionals would diminish the power of the Legislature.

Robie furthered that thought: "If the Legislature can't furlough employees of constitutional officers, maybe they can't do anything with (those employees). That's pretty far reaching."

Tyra also suggested that if the court interpreted the Legislature's budget furlough authorization as an intentional restriction on Schwarzenegger's line-item vetoes, it would be signing off on a violation of the state's "single subject rule" that requires a ballot initiative or piece of legislation to address only one issue.

The court now has up to 90 days from Wednesday's hearing to render a decision. You can view the Brown v. Chiang docket here.

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About The State Worker

Jon Ortiz The Author

Jon Ortiz launched The State Worker blog and a companion column in 2008 to cover state government from the perspective of California government employees. Every day he filters the news through a single question: "What does this mean for state workers?" Join Ortiz for updates and debate on state pay, benefits, pensions, contracts and jobs. Contact him at (916) 321-1043 and at


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