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In a decision that illustrates the poverty (in more senses than one) of our social safety net, the Court of Appeal has held that a trial court has the power to order a county human services agency that places a child in an out-of-county group home to pay for travel expenses for quarterly visits by the child's "educational representative." The San Diego County Health and Human Services Agency placed Samuel G. in a group home in Redding, California. The child's educational representative felt that visiting him quarterly would be beneficial and requested funds from the County to do so. (By this time the parents were out of the picture.) The County refused, saying that the financial responsibility was that of the representative's employer. The court nevertheless ordered the County to pay.
The Court of Appeal affirmed (here). Although a court can't compel an appropriation, it can compel an expenditure if appropriated funds are available. The court also held that the expenditure was not an improper gift of public funds, since it served a public purpose.
This decision breaks no new ground, and is therefore an unlikely candidate for Supreme Court review. Maybe the County will decide not to throw good money after bad and forego the effort.
Showing posts with label separation of powers. Show all posts
Showing posts with label separation of powers. Show all posts
Sunday, June 21, 2009
Sunday, April 5, 2009
Court Limits Judicial Power When Parole Board's Decision Reversed
In In re Masoner (here), the Court of Appeal has limited the power of the courts to order release when a parole board denies parole on the basis of a finding that the inmate is not suitable for parole and the court finds no evidence to support that decision. The court held that an order requiring release in that situation contravenes the separation of powers; instead, the court can only vacate the board's decision and remand for consideration of whether any new evidence supports the board's original decision. Requiring release unconstitutionally limits the parole board's discretion and, additionally, impairs the Governor's power to revew release decisions. On the other hand, court-ordered release is permissible when the board orders release, the Gioverrnor reverses that decision and the court sets aside the Governor's decision for lack of evidence. The difference? The Governor, unlike the parole board, can only consider the evidence that was before the board. If no evidence in that record supports the Governor's decision, release necessarily follows.
Sunday, March 15, 2009
Court of Appeal Holds That Legislature Has No Power To Set Aside Final Decisions
In a fascinating opinion that discusses a number of interesting state constitutional issues, the Court of Appeal has held that the Legislature has no power to set aside final agency quasi-judicial decisions. In California School Board Ass'n v. State of California (here), the Legislature had commanded the Commission on State Mandates, which implements Article XIII B, Section 6, to reconsider or set aside several final agency decisions. The court held that this legislative directive violated the separation of powers clause of the California Constitution, Article III, Section 3.
The court's logic is curious and, I think, flawed. The court first held--correctly--that the Legislature has no power to set aside final judicial decisions, citing Mandel v. Myers, 29 Cal. 3d 531 (1981). The court then held that the Legislature had created the Commission as a "quasi-judicial body" to resolve claims for reimbursement of state-mandated local costs. This seems both right and wrong--the Commission acts in a "quasi-judicial" function when it applies legal principles to a set of retrospective facts, but it's hard to see how a body that is not a court can exercise "judicial" power, "quasi" or not. The court then seemed to hold that the Legislature was trampling on the Commission's judicial (or "quasi-judicial") power when it directed the Commission to set aside prior decisions. In my view, this confuses the kind of task that the Commission performs--which is quasi-judicial rather than quasi-legislative--with the kind of power that it exercises.
There is, I think, a more defensible route to the same result, but it's only inherent in the court's opinion. The court did point out that only the judiciary can set aside the Commission's decisions, through judicial review. So one could argue that the Legislature's directive to the Commission to set aside and/or reconsider prior decisions violated the judicial power of the courts to review final agency decisions, rather than the "judicial" power of this plainly non-judicial agency.
On balance, though, I find this unconvincing. Like most administrative agencies, the Commission is a creature of statute--the Legislature created it and the Legislature can dissolve it. These statutes define the Commission's powers and, among other things, define when and how the Commission's orders are subject to review. Suppose the Legislature had said, up front, that no Commission decision shall be final for a period of six months after rendition, during which time the Legislature could pass a statute nullifying the decision. Would that violate the separation of powers? I suspect not. Now the only difference between that hypothetical and this case is that in CSBA the Commission's decisions had become "final." But, at least as far as administrative agencies are concerned, "finality" is a creature of statute and the common law; there is nothing "constitutional" about it. So I think the better argument is that the Legislature can do what it wants to with the decisions of administrative agencies. Now in some instances there might be a due process limit on the power of the Legislature to set aside "final" agency decisions. But here that's not a limit, because only public agencies were involved and a subordinate political body has no federal due process rights against the state that created it.
There are other interesting rulings in this case, too, in particular whether the state-mandated cost reimbursement requirement, which applies to mandates imposed by the "Legislature" applies to mandates imposed by a state initiative. The court said "no," but it had to do a certain amount of fancy footwork to get around the California Supreme Court's decision in Independent Energy Producers Assn. v. McPherson, 43 Cal. 4th 1188 (2006), which had held that a constitutional provision giving the "Legislature" plenary power to add to the jurisdiction of the Public Utilities Commission did not preclude an initiative from doing the same thing.
I think this case is a good candidate for review by the California Supreme Court. It raises lots of interesting issues, and there is at the very least a fair amount of tension between it and the Supreme Court 1997 decision in Carmel Valley Fire Protection Dist. v. State of California. Stay tuned.
The court's logic is curious and, I think, flawed. The court first held--correctly--that the Legislature has no power to set aside final judicial decisions, citing Mandel v. Myers, 29 Cal. 3d 531 (1981). The court then held that the Legislature had created the Commission as a "quasi-judicial body" to resolve claims for reimbursement of state-mandated local costs. This seems both right and wrong--the Commission acts in a "quasi-judicial" function when it applies legal principles to a set of retrospective facts, but it's hard to see how a body that is not a court can exercise "judicial" power, "quasi" or not. The court then seemed to hold that the Legislature was trampling on the Commission's judicial (or "quasi-judicial") power when it directed the Commission to set aside prior decisions. In my view, this confuses the kind of task that the Commission performs--which is quasi-judicial rather than quasi-legislative--with the kind of power that it exercises.
There is, I think, a more defensible route to the same result, but it's only inherent in the court's opinion. The court did point out that only the judiciary can set aside the Commission's decisions, through judicial review. So one could argue that the Legislature's directive to the Commission to set aside and/or reconsider prior decisions violated the judicial power of the courts to review final agency decisions, rather than the "judicial" power of this plainly non-judicial agency.
On balance, though, I find this unconvincing. Like most administrative agencies, the Commission is a creature of statute--the Legislature created it and the Legislature can dissolve it. These statutes define the Commission's powers and, among other things, define when and how the Commission's orders are subject to review. Suppose the Legislature had said, up front, that no Commission decision shall be final for a period of six months after rendition, during which time the Legislature could pass a statute nullifying the decision. Would that violate the separation of powers? I suspect not. Now the only difference between that hypothetical and this case is that in CSBA the Commission's decisions had become "final." But, at least as far as administrative agencies are concerned, "finality" is a creature of statute and the common law; there is nothing "constitutional" about it. So I think the better argument is that the Legislature can do what it wants to with the decisions of administrative agencies. Now in some instances there might be a due process limit on the power of the Legislature to set aside "final" agency decisions. But here that's not a limit, because only public agencies were involved and a subordinate political body has no federal due process rights against the state that created it.
There are other interesting rulings in this case, too, in particular whether the state-mandated cost reimbursement requirement, which applies to mandates imposed by the "Legislature" applies to mandates imposed by a state initiative. The court said "no," but it had to do a certain amount of fancy footwork to get around the California Supreme Court's decision in Independent Energy Producers Assn. v. McPherson, 43 Cal. 4th 1188 (2006), which had held that a constitutional provision giving the "Legislature" plenary power to add to the jurisdiction of the Public Utilities Commission did not preclude an initiative from doing the same thing.
I think this case is a good candidate for review by the California Supreme Court. It raises lots of interesting issues, and there is at the very least a fair amount of tension between it and the Supreme Court 1997 decision in Carmel Valley Fire Protection Dist. v. State of California. Stay tuned.
Wednesday, October 22, 2008
Separation of Powers Leads Court To Narrow Criminal Conflict of Interest Statute
Government Code Section 1090 forbids state and local legislators and other officials from having a financial interest in a contract approved by them, or by a legislative body of which they are members. Can a legislator be convicted of aiding and abetting a section 1090 violation if he or she votes to approve a contract in which another public official has a financial interest? The Court of Appeal for the Fourth Appellate District, Division Three, has said "no," at least where (a) the legislator himself or herself has no economic interest in the contract; and (b) the alleged criminal activity consists entirely of acts connected to the legislative process--i.e., urging the passage of, or voting on, proposed legislation. The court based its ruling squarely on the separation of powers embodied in Article III, Section 3 of the California Constitution, while simultaneously acknowledging that that provision does not literally apply to local legislators.
The decision in D'Amato v. Superior Court (available here) grew out of the following facts. D'Amato was a member of the Plascentia City Council. In 2000, the council approved the formation of a Joint Powers Authority known as ONTRAC. D'Amato became one of the three ONTRAC board members. Becker was the City's Public Works Director, but he also wanted to be ONTRAC's general manager. The ONTRAC board hired Becker's company to be the general manager. Becker was indicted for violating Section 1090 and D'Amato was indicted for aiding and abetting Becker's Section 1090 violation. The trial court denied a motion to quash the indictment and D'Amato filed a writ petition to overturn that decision.
The court granted the writ. The court based its decisions on separation of powers principles that forbid courts from scrutinizing the motives of individual legislators. No such scrutiny is required for a "direct" Section 1090 violation, because the statute criminalizes the holding of a financial interest in a contract that is approved by the legislative body of which the defendant is a member regardless of whether the individual legislative defendant votes to approve the contract. However, such scrutiny is required for aiding and abetting someone else's violation of the statute. For example, one of the counts in the indictment was based on the fact that D'Amato voted to approve the JPA that created ONTRAC. But that's a quintessentially legislative act. So was approval of the contract between ONTRAC and Becker. In the absence of a showing that the legislator himself had a financial interest in the contract, there could be no aiding and abetting liability. As the court explained, a contrary ruling could place county district attorneys in a supervisorial role over all local legislators--a result the court found untenable: "Given the broad reach of criminal and civil liability under sections 1090 and 1097, applying aider and abettor liability to the financially-interested official’s fellow public servants would turn a powerful tool against financial conflicts of interest into a dangerous weapon enabling a prosecutor to seek removal of an entire legislative body, both duly elected officials and staff members, based on a single official’s financial interest. Equally troubling, a prosecutor could influence a public agency’s future legislative path by picking and choosing which officials and staff members to prosecute, and which to leave alone."
This is a fascinating decision and seems entirely correct. Indeed, the opinion stated that its interpretation of Section 1090 was consistent with all of the 423 cases listed in Shepard's as citing the statute, other than dicta in one opinion dating from 1952. No doubt the prosecutor will file a petition for review, claiming that the decision hampers his ability to safeguard the integrity of local officials. Even if that is untrue, the importance and novelty of the case may well lead the Supreme Court to grant review.
The decision in D'Amato v. Superior Court (available here) grew out of the following facts. D'Amato was a member of the Plascentia City Council. In 2000, the council approved the formation of a Joint Powers Authority known as ONTRAC. D'Amato became one of the three ONTRAC board members. Becker was the City's Public Works Director, but he also wanted to be ONTRAC's general manager. The ONTRAC board hired Becker's company to be the general manager. Becker was indicted for violating Section 1090 and D'Amato was indicted for aiding and abetting Becker's Section 1090 violation. The trial court denied a motion to quash the indictment and D'Amato filed a writ petition to overturn that decision.
The court granted the writ. The court based its decisions on separation of powers principles that forbid courts from scrutinizing the motives of individual legislators. No such scrutiny is required for a "direct" Section 1090 violation, because the statute criminalizes the holding of a financial interest in a contract that is approved by the legislative body of which the defendant is a member regardless of whether the individual legislative defendant votes to approve the contract. However, such scrutiny is required for aiding and abetting someone else's violation of the statute. For example, one of the counts in the indictment was based on the fact that D'Amato voted to approve the JPA that created ONTRAC. But that's a quintessentially legislative act. So was approval of the contract between ONTRAC and Becker. In the absence of a showing that the legislator himself had a financial interest in the contract, there could be no aiding and abetting liability. As the court explained, a contrary ruling could place county district attorneys in a supervisorial role over all local legislators--a result the court found untenable: "Given the broad reach of criminal and civil liability under sections 1090 and 1097, applying aider and abettor liability to the financially-interested official’s fellow public servants would turn a powerful tool against financial conflicts of interest into a dangerous weapon enabling a prosecutor to seek removal of an entire legislative body, both duly elected officials and staff members, based on a single official’s financial interest. Equally troubling, a prosecutor could influence a public agency’s future legislative path by picking and choosing which officials and staff members to prosecute, and which to leave alone."
This is a fascinating decision and seems entirely correct. Indeed, the opinion stated that its interpretation of Section 1090 was consistent with all of the 423 cases listed in Shepard's as citing the statute, other than dicta in one opinion dating from 1952. No doubt the prosecutor will file a petition for review, claiming that the decision hampers his ability to safeguard the integrity of local officials. Even if that is untrue, the importance and novelty of the case may well lead the Supreme Court to grant review.
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