Brewer

Petitioner Upjohn Company (plaintiff) seeks a writ of mandate compelling the respondents, Office of Administrative Law and Department of Finance (defendants), to add to the Medi-Cal Drug Formulary (formulary) a prescription drug marketed by plaintiff. Plaintiff claims defendants have a mandatory duty pursuant to Welfare and Institutions Code section 14105.9 to add such drug to the formulary. The issue presented is whether Welfare and Institutions Code section 14105.9 survived the Governor’s “veto” of section 54.3 of chapter 268 of the statutes of 1984 which added section 14105.9 to the Welfare and Institutions Code. Relying on Harbor v. Deukmejian (1987) 43 Cal.3d 1078 [ 240 Cal.Rptr. 569 , 742 P.2d 1290 ], plaintiff asserts the veto of this section by the Governor was unconstitutional and, the veto being invalid, the section must be held to be valid. Defendants also rely on Harbor , arguing that its analysis *355 applied to these facts compels this court to uphold the Governor’s veto notwithstanding its constitutional infirmity. As we shall explain, defendants’ argument is logically compelling and legally correct.

The facts are convoluted. Plaintiff, a pharmaceutical…