Theroux

Defendants State of California and State Controller Ken Cory appeal from the judgment entered in favor of Mary Theroux, Susan Balliger and Christine Morales contending: “[I.] The exclusion of respondents from Senate Bill 91 [SB 91] does not violate constitutional due process or equal protection provisions. [II.] The State Controller cannot disburse state monies contrary to the legislative purpose of Senate Bill 91, even if unconstitutional.”

Senate Bill No. 91 (now Stats. 1979, ch. 192) awards a lump sum payment to certain classes of state employees including “current employees on or after May 31, 1979,” and “those employees who retired between October 1, 1978, and May 31, 1979,” in order “to provide compensation equivalent to that which they would have otherwise received from October 1, 1978, through June 30, 1979, had they received a 7 percent salary increase on October 1, 1978.” (§ 1.5, subd. (a)(2).) The bill declared the adjustments “are provided not as a retroactive salary increase, but for continued services rendered on or after the effective date of this act to the extent that any such services may be rendered. Recent events make these adjustments necessary to…

I concur but because of my dedication to the doctrine of the separation of powers I feel compelled to express some additional thoughts.

Judicial decisions, which directly or indirectly mandate the Legislature to appropriate public funds for a particular purpose, are clearly an affront to the doctrine of separation of powers. In my opinion, however, that doctrine appears less forbidding when the Legislature is acting in the role of an employer.

Further, from the history of the legislation and the background against which it was enacted, it is obvious to me that the Legislature initially desired the very result which we reach here but was persuaded that, because of the delay inherent in the legislative process and the additional delay occasioned by the need to override the Governor’s veto, such result was not attainable.

Since the Supreme Court in Jarvis v. Cory (1980) 28 Cal.3d 562 [ 170 Cal.Rptr. 11 , 620 P.2d 598 ], rightly or wrongly, swept aside the prohibition against retroactive pay raises, it seems only fair that the Legislature be permitted to do what it would have done absent the fear of being frustrated by the courts.

At oral argument in this matter, we were advised…

Defendants State of California and State Controller Ken Cory appeal from the judgment entered in favor of Mary Theroux, Susan Balliger and Christine Morales contending: "[I.] The exclusion of respondents from Senate Bill 91 [SB 91] does not violate constitutional due process or equal protection provisions. [II.] The State Controller cannot disburse state monies contrary to the legislative purpose of Senate Bill 91, even if unconstitutional."

Senate Bill No. 91 (now Stats. 1979, ch. 192) awards a lump sum payment to certain classes of state employees including "current employees on or after May 31, 1979," and "those employees who retired between October 1, 1978, and May 31, 1979," in order "to provide compensation equivalent to that which they would have otherwise received from October 1, 1978, through June 30, 1979, had they received a 7 percent salary increase on October 1, 1978." (§ 1.5, subd. (a)(2).) The bill declared the adjustments "are provided not as a retroactive salary increase, but for continued services rendered on or after the effective date of this act to the extent that any such services may be rendered. Recent events make these adjustments…