Superior Court v. County of Mendocino

I concur. As the majority explains, the Mendocino County Superior Court’s constitutional challenge to Government Code section 68108 is a facial one. We are not deciding the more difficult question whether the statute, as applied in this case, materially impairs judicial functions of the superior court.

I am somewhat troubled by the majority’s failure to address the question whether the Legislature had the power to delegate to the various counties *67 authority to declare unpaid judicial furlough days. The majority states that because the contention was not raised in the Court of Appeal, it is not properly before us. (Maj. opn., ante, at p. 66, fn. 12.) But the issue appears on the face of the statute, was at least mentioned by the Court of Appeal in its opinion, and certainly we could have requested further briefing on it.

As the Court of Appeal observes in describing the statutory scheme before us, “Thus, however, anomalous it may seem, the Legislature has now established a system under which the judges of a court may choose to conduct night court on New Year’s Eve, but are absolutely precluded from conducting court on days designated by county boards of supervisors as ‘unpaid…

Government Code section 68108 1 authorizes a county, under specified circumstances, to designate “unpaid furlough days” on which the trial courts of the county generally “shall not be in session.” In this case, we are called upon to decide whether this statute is unconstitutional on its face. The trial court rejected the facial challenge to the constitutionality of section 68108, but the Court of Appeal disagreed, concluding that the statute represents “a legislative exercise of judicial power” and violates the separation of powers doctrine embodied in article III, section 3, of the California Constitution.

*49 As we shall explain, we conclude that the Court of Appeal erred in finding section 68108 unconstitutional on its face.

I

In 1993, the Legislature enacted section 68108 as part of a measure aimed generally at assisting local governments in meeting their then pressing fiscal concerns. (Stats. 1993, ch. 70, § 3.) The statute was enacted as an urgency measure and took effect on June 30, 1993.

Section 68108 provides that when a county has entered into a “memorandum of understanding” with its employees that designates certain days as “unpaid furlough days” for…