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Kelly Vent State Bar Number: 257418 3380 Hartselle Way Sacramento, CA 95827 Telephone: 916.949.9137 E-mail: k_vent@yahoo.com In pro se

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO

KELLY VENT, Petitioner, vs. GOVERNOR EDMUND G. BROWN, JR., in his official capacity; LEGISLATURE OF THE STATE OF CALIFORNIA; JOHN CHIANG, in his official capacity as State Controller; JACOB APPELSMITH, in his official capacity as Director of Department of Alcoholic Beverage Control; and all others Respondents

Case No.:

VERIFIED PETITION FOR WRIT OF MANDATE WITH SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES AND VERIFIED COMPLAINT FOR DECLARATORY RELIEF (pursuant to Code Civ. Proc. 1085-86; 1060)

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES. INTRODUCTION I. II. III. IV. V. PARTIES PETITION FOR WRIT OF MANDATE WHY THIS WRIT SHOULD ISSUE . PRAYER . MEMORANDUM OF POINTS AND AUTHORITIES . A. State attorneys must receive the fixed-salary of appointment, even when not required to work a normal workday. B. As applied to attorneys, furloughs violate the like-pay-forlike-work mandate of the constitutional merit principle enshrined within Article VII, section 1, subdivision (b) of the California Constitution (hereafter Article VII) ... 4 7-10 11 12 13-21 22 23-56

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1. Article VII is a restraint on the legislature as paysetter of 26-29 employee salary. 2. The competitive exam mandate of Article VII requires like-pay-for-like-work. 3. Fiscal considerations cannot circumvent the horizontal parity requirement of Article VII. 4. The executive cannot violate Article VII through a civil agreement. 5. The legislature cannot unilaterally reduce all attorney salary through appropriations in the annual budget act. 6. The legislature cannot escape the restraint of Article VII through collective bargaining 30-32 32-34 34-36 36-37 37-38

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C. Furloughs violated the substantive and procedural due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the due process and equal protection clauses of California Constitution, Article I, section 7. D. Furloughs impaired the states obligation of contracts in violation of Article I, section 10, of the United States Constitution and Article I, section 9, of the California Constitution... E. The Alcoholic Beverage Control (ABC) withheld 70 days of attorney salary from February 1, 2009 through March 31, 2011, without lawful authority. . CONCLUSION. VI. VII. COMPLAINT FOR DECLARATORY RELIEF ..

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57-60 VERIFICATION 60

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TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION Fifth Amendment .... 8, 38, 56 Fourteenth Amendment ...8, 38, 56 Article I, 10 ..41, 56 CALIFORNIA STATE CONSTITUTION Article I, 7 ... 8, 38, 56 Article I, 9 .... 41, 56 Article VII, 1 passim Article VII, 3 .58, 60 Article XVI, 7 .... 11 Article XX, 21 ... 49 STATUTES, RULES, & REGULATIONS Business and Professions Code 23000, et seq. ..10 23053..11, 13 23095...45 2576113, 32, 49 California Code of Civil Procedure 338....20 1085....10, 13 108614, 18 Government Code 3512, et seq. 58 3517.6..42 3517.8..9, 42

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3521.5..24 12440..11, 13, 50, 62 1630413, 32, 50 18000..23, 25 18500, et seq. .. passim 18500... passim 18524..11, 13 18525....23 18528....23 18550....23 18551...26 19570...39 19574.15, 39 19826passim UNITED STATES SUPREME COURT Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234....41 Bd. of Regents v. Roth (1972) 408 U.S. 564...42 Energy Reserves Group, Inc. v. Kansas Power (1983) 459 U.S. 400...41-42 Murray v. Charleston (1877) 96 U.S. 432.43 Sonoma County v. County of Sonoma (1979) 23 Cal.3d 296...45-46 U.S. Trust Co. v. N.J. (1977) 431 U.S. 1...44 UNITED STATES CIRCUIT COURTS OF APPEAL U. of Haw. Prof'l Assem. v. Cayetano (9th Cir. 1999) 183 F.3d 1096.42, 45 SUPREME COURT OF CALIFORNIA Bd. of Social Welfare v. County of L.A. (1945) 27 Cal.2d 98.....18 Martin v. Henderson (1953) 40 Cal.2d 583.24-25, 52 Pac. Legal Found. v. Brown (1981) 29 Cal.3d 16827, 58, 60 Prof. Engineers in Cal. Govt. v. Schwarzenegger (2000) 50 Cal.4th 989..passim

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Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194...9, 15, 39-40 State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422..6 Steen v. Bd. of Civil Service Comm'rs (1945) 26 Cal.2d 716 33 White v. Davis (2003) 30 Cal.4th 52841 CALIFORNIA Barry v. Jackson (1916) 30 Cal.App. 165.32-33 Byrne v. State Personnel Bd. (1960) 179 Cal.App.2d 576.28 Cal. State Police Assn. v. State of Cal. (1981) 120 Cal.App.3d 674 .....31 Cal. Attorneys v. Schwarzenegger (2009) 174 Cal.App.4th 424....8, 58 Cal. Teachers Ass'n v. Cory (1984) 155 Cal.App.3d 494...42 Cornell v. Harris (1936) 15 Cal.App.2d 144....35-36 Dept. of Personnel Admin. V. Greene (1992) 5 Cal.App.4th 15547, 58 Green v. Mt. Diablo Hospital Dist. (1989) 207 Cal.App.3d 63.42 Marshall v. Williams (1927) 85 Cal.App 507 ....13 McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 43618 O'Brien v. Olson (1941) 42 Cal.App.2d.....14 Proctor v. S.F. Port Authority (1968) 266 Cal.App.2d 67523 Ross v. Bd. of Education (1912) 18 Cal.App 222...16 State Trial Attorneys' v. State of Cal. (1976) 63 Cal.App.3d 298....26-27, 30-31, 34 Swepston v. State Pers. Bd. (1987) 195 Cal.App.3d 92..23 Theroux v. Cal. (1984) 152 Cal.App.3d 1..32 Trujillo v. L.A. (1969) 276 Cal.App.2d 333.6 Wirth v. State of Cal. (2006) 142 Cal.App.4th 131..47, 54 California Attorneys, etc. v. Arnold Schwarzenegger et al. (Feb. 26, 2010) A127777....20 OTHER Rogers v. Buffalo (1890) 123 N.Y. 173..27

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INTRODUCTION I am a permanent, full-time, state attorney employed by the Department of Alcoholic Beverage Control (ABC). Subject to collective bargaining under the Ralph C. Dills Act (Gov. Code1, 3512, subd. c, et seq.), I am a voting member of the employee union, California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (CASE), Bargaining Unit 2 (BU2). In light of ongoing fiscal emergencies to the general fund, respondents unlawfully retained 97 days of my earned salary from February 1, 2009 through March 31, 2011 and from April 1, 2011 through June 30, 2013. Pursuant to a series of executive orders (exhibit A)2, Governor Arnold Schwarzenegger asserted unprecedented lawmaking powers to unilaterally cut my salary outside of collective bargaining. Absent due process protections, the ABC essentially changed my appointment status from full to part time employment and withheld 70 days of my earned salary from February 1, 2009 through March 31, 2011. The ABC furloughed me from the office for 70 normal workdays. As a civil-service attorney in Work Week Group- Salary Exempt (WWG-SE)3, my fixed-salary of appointment cannot be reduced when not required to work to a normal workday. (exhibit B.) In exchange, attorneys are exempt from the Fair Labor Standards Act (FLSA) protections and are not eligible for overtime compensation. For each furlough day, the ABC retained roughly 5 percent4 of my monthly, fixed-salary of appointment. The taking of my salary unjustly enriched the ABC and bore no rational relation to the fiscal crisis of the general fund since 100 percent of my salary comes from license fees and such funds can never be used for general fund purposes. On February 1, 2012, the legislature and Governor Brown paid different salaries to similarly classified attorneys in violation of the merit principle enshrined within Article VII.
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All further statutory references are to the Government Code unless otherwise indicated. Governors Exec. Order No. S-16-08 (Dec. 19, 2008) (effective February 1, 2009: 10 percent pay cut with a promised end date of June 30, 2010); Governors Exec. Order No. S-13-09 (July 1, 2009) (effective July 1, 2009: 15 percent pay cut with a promised end date of June 30, 2010); and Governors Exec. Order No. S-12-10 (July 28, 2010) (effective August 1, 2010: 15 percent pay cut with no end date). Department of Human Resources (CalHR) (formally Department of Personnel Administration (DPA)), Exempt Salary Schedule (2011) <http://www.calhr.ca.gov/Documents/exempt-salary-schedule.pdf> [as of July 12, 2013].
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The actual number, 4.62 percent, derives from an average of 20 to 21 work days in a monthly pay period.
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Article VII mandates: In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination. Without regard to the competitive exam requirement of Article VII, attorneys with less experience received higher salaries than attorneys with more experience. As candidate for governor in 2010, Governor Brown said [unilateral] furloughs [via executive order] were a bad idea.5 As Governor, he ordered unilateral furloughs via executive memo. As Attorney General and Governor, he refused to furlough his DOJ attorneys even though his office takes 40 percent of its funding from the general fund. As Governor, he kept special fund attorneys on indefinite furloughs without a legitimate, government purpose. As Attorney General, he litigated against furloughs. As Governor, he never withdrew the appeal of the special fund win at trial court. As Attorney General, he argued that similarly classified attorneys were grossly underpaid in violation of the merit principle within Article VII; he blamed collective bargaining. (Cal. Attorneys v. Schwarzenegger (2009) 174 Cal.App.4th 424, 431.) As Governor, he maintained lower salaries for 40 percent of the state attorneys in violation of the merit principle within Article VII. As 1970s Governor, he advocated the passage of collective bargaining for state employees. As current Governor, he imposed involuntary pay cuts in order to extract voluntary pay cuts through collective bargaining. Governor Brown settled the special fund litigation on February 1, 2012 and unlawfully authorized the return of salary for some furloughed attorneys at the expense of other furloughed attorneys without regard to the competitive exam process of Article VII. (exhibit C.) While seemingly benevolent, Governor Brown, as executive or agent of the legislature, cannot cherry-pick winners and losers between similarly classified attorneys (especially when the Governor kept both groups furloughed for 70 days). As a permanent employee, the state violated my substantive and procedural due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and the due process and equal protection clauses of California Constitution, Article I, section 7, when it purposely reduced my salary in bad faith, without cause, and without any pre or post5

Sacramento Bee, Jerry Brown Proposes 4-day work week (Jan. 4, 2013) at <http://blogs.sacbee.com/the_state_worker/2013/01/top-10-posts-of-2012-jerry-brown-proposes-4-dayworkweek.html> [as of July 20, 2013].
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deprivation safeguards. Article VII (formally Article XXIV, as adopted 1934, 1, renumbered 1976.) wisely provides substantive and procedural salary protections [t]o help insure that the goals of civil service are not thwarted by those in power. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 202 (Skelly).) Without a legitimate government purpose, the state violated its obligations of contracts pursuant to both state and federal constitutions when it substantially impaired the terms and provisions of my employment contract from February 1, 2009 through March 31, 2011. The legislature approved all provisions of the Memorandum of Understanding (MOU) (effective July 1, 2005- June 30, 2007) for BU2 that required the expenditure of funds. (Stats. 2006, ch. 28, 1-4, p. 231.) All terms and provisions remained in effect through March 31, 2011, due to the operation of the evergreen clause within Section 3517.8. (Prof. Engineers in Cal. Government v. Schwarzenegger (2000) 50 Cal.4th 989, 1039-40 (PECG).) From April 1, 2011 through June 30, 2013, the legislature and executive violated Article VII when they approved higher salaries for similarly classified attorneys in an MOU (effective Apr. 1, 2011- June 30, 2013) for BU2. From April 1, 2011 through June 30, 2012, the legislature paid SCIF attorneys higher salaries unrelated to merit and the competitive exam process. From July 1, 2012 through June 30, 2013, the legislature paid attorneys in the Legislative Counsel Bureau (LCB) higher salaries than all other attorneys similarly classified. Given the People of California enacted Article VII as a restraint on the legislature to prevent abuse by those in power, the legislature cannot ignore the constitutional mandate. The only remedy for the constitutional violation is to restore horizontal parity in terms of dollars. Finally, the ABC can point to no legal authority for withholding the salaries of its special-fund employees from February 1, 2009 through March 31, 2011. The executive cannot unilaterally reduce individual salaries via executive orders. 1041. No court upheld furloughs as applied to special funds. From the first general fund fiscal emergency in 1969 through the many to follow, the legislature never once sought to impair its obligations to pay special-fund employees. Moreover, the legislature never reduced appropriations to the ABC in any budget act. As a result, the ABC maintained an unprecedented surplus of funds already appropriated by the legislature for the enforcement and administration of the ABC Act (Bus. &

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Prof. Code, 23000 et seq.). Further, the payment of salaries to special-fund employees is never dependent upon any particular budget act appropriation as long as there are unencumbered funds already appropriated for such use. As such, the controller has a lawful obligation to pay my fixed salary of appointment from unencumbered funds of the ABC already dedicated for such purpose. I have no adequate remedy at law and will suffer irreparable harm if my income is not returned. This Court has authority pursuant to Code of Civil Procedure sections 108586, to direct Respondents to perform its obligations as required by law.

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I.

PARTIES PETITIONER I, KELLY VENT, PETITIONER, am a resident of Sacramento, California where venue is proper. RESPONDENTS GOVERNOR EDMUND G. BROWN, JR. is named in his official capacity as executive and as agent of the legislature. The governor can authorize the return of salary retained due to furloughs from February 1, 2009 through March 31, 2011. The LEGISLATURE is named in its official capacity as ultimate paysetter of employee salary. JOHN CHIANG is named in his official capacity as State Controller. Money may be drawn from the Treasury only through an appropriation made by law and upon a Controller's duly drawn warrant. (Cal. Const., art. XVI, 7; 12440 [authorizes the Controller to draw warrants authorized by law upon unexhausted specific appropriations].) JACOB APPELSMITH, Director of Department of Alcoholic Beverage Control, is named in his official capacity to make appointments to positions in civil service. ( 18524; Bus. & Prof. Code, 23053.) STATE PERSONNEL BOARD, a non-partisan board vested with authority pursuant to Article VII, section 3 of the Constitution of California to administer and enforce all civil service laws and to set employee salary pursuant to the merit principle of Article VII through salary surveys of equivalent private and public sector positions.

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II.

PETITION FOR WRIT OF MANDATE Petitioner hereby incorporates by reference all of the foregoing paragraphs as if

fully set forth herein. I, KELLY VENT, hereby petition this Court for a writ of mandate directed to respondents: Governor Edmund G. Brown, Jr., the Legislature of the State of California, Controller John Chiang, and to Jacob Appelsmith, Director of the ABC to return 70 days of my salary unlawfully taken through executive orders from February 1, 2009 through March 30, 2011. Governor Edmund G. Brown, Jr., the Legislature of the State of California, Controller John Chiang, and to Jacob Appelsmith, Director of the ABC to return 27 days of my salary unlawfully taken through an MOU for BU2 from April 1, 2011 through June 30, 2013. Governor Edmund G. Brown, Jr., the Legislature of the State of California, and Controller John Chiang to return up to 70 days of salary unlawfully taken from 40% of the attorneys in BU2 through executive orders from February 1, 2009 through March 30, 2011. Governor Edmund G. Brown, Jr., the Legislature of the State of California, and Controller John Chiang to return 15 days of salary unlawfully taken from attorneys in BU2 (except those employed by the State Compensation Insurance Fund (SCIF)) taken through an MOU from April 1, 2011 through June 30, 2012. Governor Edmund G. Brown, Jr., the Legislature of the State of California, and Controller John Chiang to return 12 days of salary unlawfully taken from attorneys in BU2 (except those employed by Legislative Counsel Bureau (LCB)) taken through an MOU from July 1, 2012 through June 30, 2013. Governor Edmund G. Brown, Jr., the Legislature of the State of California, Controller John Chiang, and to Jacob Appelsmith, Director of the ABC, to return 70 days of salary from civil service employees of the ABC unlawfully taken through executive orders from February 1, 2009 through March 30, 2011. Through this Petition, I allege the following:

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III.

WHY THIS WRIT SHOULD ISSUE FURLOUGHS VIA EXECUTIVE ORDERS: FEBRUARY 1, 2009 THROUGH MARCH 31, 2011 Petitioner hereby incorporates by reference all of the foregoing paragraphs as if

fully set forth herein. Code of Civil Procedure section 1085, subdivision a, provides: A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office . . . I performed all services as required by the ABC pursuant to my appointment to a full-time, civil service attorney in exchange for a fixed salary from February 1, 2009 through March 31, 2011. (Marshall v. Williams (1927) 85 Cal.App 507 [writ to city auditor to pay approved salary to duly appointed employee].) Director Appelsmith, as the appointing authority6, has a legal duty to pay me a full salary for services rendered. Nonetheless, the ABC unlawfully withheld 70 days of my salary. The ABC fund became encumbered as soon as I performed as required in exchanged for a fixed salary. Section 16304 states: An appropriation shall be deemed to be encumbered at the time and to the extent that a valid obligation against the appropriation is created. Further, the ABC fund is a continuous appropriation, thus, monies already appropriated by the legislature for the enforcement and administration of the ABC Act remain available for such use without regard to fiscal year. ( 16304, subdivision (f); Bus. & Prof. Code, 25761, subd. (d).) Accordingly, the Controller shall draw a warrant for the lawful obligation to pay earned salary upon an available appropriation. (Cal. Const., art. XVI, 7; 12440 [authorizes the Controller to draw warrants authorized by law upon unexhausted specific appropriations].) No further legislative action is required to approve funds already appropriated. From February 1, 2009 through March 31, 2011, I performed the same attorney services as other similarly classified attorneys who worked for the Board of Equalization, Department of Education, Department of Justice (DOJ), LCB, Secretary of State, State Controllers Office, State Treasurers Office, California Institute for Regenerative Medicine,
( 18524; Bus. & Prof. Code, 23053.)
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Bureau of State Audits, Public Utilities Commission, California Earthquake Authority, Employment Development Department, Franchise Tax Board, California Highway Patrol, State Compensation Fund, Prison Industries Authority, California State Lottery Commission, First 5 Association of California, and California Housing Finance Agency. Without regard to the constitutional merit principle enshrined in Article VII, the legislature paid higher salaries to similarly classified attorneys in the above departments without regard to the competitive exam process. Governor Brown, as executive or agent to the legislature, likewise ignored the restraints of Article VII when he authorized the return of full salary to similarly classified attorneys in the Prison Industries Authority, California State Lottery Commission, First 5 Association of California, and California Housing Finance Agency on February 1, 2012. Identically situated, the attorneys in the above departments were furloughed for 70 days and their salaries (usually) do not come from the general fund. The governor is subject to a writ of mandate. (See also O'Brien v. Olson (1941) 42 Cal.App.2d 449.) The state violated the state and federal constitutional obligation of contracts when it substantially impaired the terms of my appointment and withheld 70 days of my fixed salary without a legitimate government purpose. Further, the ABC can point to no legal authority for withholding the salaries of its special-fund employees from February 1, 2009 through March 31, 2011. Due to the fact that I performed as required by my appointment as a full-time attorney, respondents have a lawful obligation and duty to pay me a fixed salary for services rendered from February 1, 2009 to March 31, 2011. Because I rendered the same legal services for less salary than other similarly, classified attorneys from February 1, 2009 to June 30, 2013, Article VII mandates a remedy in terms of dollar results. Accordingly, a writ should issue to return 97 days of my salary unlawfully taken and withheld by the ABC. Code of Civil Procedure section 1086, states: The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.

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This petition is proper because the state purposely denied access to administrative relief afforded to state employees in the face of a salary deprivation. As a permanent employee, I have a constitutionally protected property interest in my fixed salary and continued employment. (Skelly, supra, 15 Cal.3d 194, 207-208 [due process protects employee salary from deprivation without cause].) Here, the state failed to serve written notice either personally or by mail as required by Section 19574. Even if the executive orders satisfied the service requirement, Governors Executive Order Number S-13-09 (July 1, 2009) is not valid since the governor did not serve the notice prior to the effective date as required by Section 19574. I showed up for work on July 1, 2009, earning 90 percent of my fixed salary and left the same day earning 85 percent of my fixed salary of appointment. The lack of due process is especially harsh given permanent employees are essentially indentured to their pensions and health care. Due to the fact furloughs are unlimited in scope and duration, this new furlough law allows the governor and legislature to constructively terminate employees in bad faith, without cause, or due process. Closing all doors to relief, Governor Schwarzenegger, as executive or agent to the legislature, declared the unilateral salary reductions were beyond any due process protections. Each executive order declared: This Order is not intended to create, and does not create, any rights or benefits, whether substantive or procedural, or enforceable at law or in equity, against the State of California or its agencies, departments, entities, officers, employees, or any other person. The state may argue that CASE represented my interests through its participation in years of furlough litigation. While CASE did represent my interests as a member of BU2, CASE did not represent my interests as an individual. CASE membership is not homogenous. As an individual, I had an independent right to be heard. Further, CASE could only do so much to protect as many member interests as possible given the fractured nature of legal challenges to the made-up, furlough law of Governor Schwarzenegger. The legislature essentially denied responsibility for furloughs and hid behind Governor Schwarzenegger until the Supreme Court of California in PECG revealed the

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legislatures true role on November 4, 2010. (PECG, supra, 50 Cal.4th 989, 1047-48.) As a result of an omission of a material fact, all legal challenges were incorrectly premised on the actions of the Executive, not the legislature. By hiding behind the governor, the legislature blocked access to a plain, speedy, and adequate remedy, in the ordinary course of law. Most unsettling, the legislature needlessly expended CASE resources when it sat silent while Governor Schwarzenegger and employees (through union membership) spent millions of dollars litigating the issue of whether the governor, not the legislature, had the authority to unilaterally cut employee salary via executive order. While technically employees had access to the courts, the denial of administrative remedies and years of increasing pay cuts created genuine barriers to court relief. For example, administrative relief would have allowed reasonable use of state time and resources to challenge the furloughs in a pre-deprivation, evidentiary hearing. During the furloughs via executive order, the state essentially allowed no use of state resources to challenge the deprivation. The only resource given by the State was a handout titled, Making Furloughs Work for You. This handout did not advise me of my constitutional rights to a predeprivation hearing. The multi-page handout merely pointed out the benefits of pay cuts. For example, furloughs allowed me to do all the things I ever wanted to do with extra time (and no money). The handout also suggested that I develop a personal budget on my furlough days and use unpaid time off from work to develop job skills to make me more valuable to the State when not on furloughs. Admittedly, an employee could litigate the breach of the employment contract in court. However, a writ shall issue to remedy the unlawful taking of salary as the result of an official duty because a mere win on a contract claim cannot compel performance to actually pay. (Ross v. Bd. of Education (1912) 18 Cal.App 222, 225.) Thus, a writ is proper here.

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FURLOUGHS IN MEMORANDUM OF UNDERSTANDING, BARGAINING UNIT 2: APRIL 1- 2011 THROUGH JUNE 30, 2013 Unrelated to the competitive exam mandate of Article VII, Governor Brown and the legislature approved higher salaries to similarly classified attorneys from April 1, 2011 through June 30, 2012. Governor Brown told employees we had to agree to voluntary cuts since the legislature was going to take our salary whether employees agreed or not. Case members ratified the pay cuts on April 17, 2011. For the first 15 months of the employment contract, and without regard to merit, the legislature paid SCIF attorneys roughly 5 percent higher salaries than to other similarly classified attorneys exempt from furloughs. The legislature seemingly justified this unequal treatment as required by statute. As Article VII is a restraint on legislative authority, the legislature cannot usurp the constitutional mandate by citing to its own statutes. In the remaining year of the employment contract, and without regard to merit, the legislature secretly paid attorneys in the LCB higher salaries than similarly classified attorneys from July 1, 2012 through June 30, 2013. As Article VII is a restraint on legislative authority, the legislature cannot usurp the Constitution to pay its attorneys in the LCB higher salaries than other similarly classified attorneys. Given judicial economy and the risk of inconsistent judgments, administrative relief is futile to challenge the furloughs via contract from April 1, 2011 through June 39, 2013. Understandably, CASE refuses to represent my interests. Payment of my salary would likely add a political wrinkle on top of the new form of collective bargaining7 where the governor can extract negotiated pay cuts by advising unions that the legislature will just cut all individual salaries by reducing general fund appropriations in the budget act. Since I only assert Article VII as a basis for relief from April 1, 2011 through June 30, 2013, the doctrine to exhaust administrative remedies should not apply because administrative relief cannot be reached on alternative, non-constitutional grounds. Moreover, since the state denied administrative relief for furloughs via executive order, it is disingenuous for the state to require me to exhaust administrative remedies for the furloughs via employee contract. This is especially true since
Often called, collective begging.
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the executive and legislature have been operating outside of collective bargaining for the last four years. Thus, the doctrine to exhaust administrative remedies would not serve justice, equity, or judicial economy. ATTORNEY SALARY BU 2: FURLOUGHS VIA EXECUTIVE ORDERS AND CONTRACT FEBRUARY 1, 2009 THROUGH JUNE 30, 2013 As a resident and taxpayer of California, I petition this court to the return the salary unlawfully taken from roughly 40 percent of the attorneys from BU2 who lost pay from February 1, 2009 through June 30, 2013 in order to remedy the Article VII and other constitutional violations. Code of Civil Procedure section 1086 requires that a writ must be issued upon the verified petition of the party beneficially interested. However, the Supreme Court of California holds that a writ is proper [w]here the question is one of public right and the object of mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. (Bd. of Social Welfare v. County of L.A. (1945) 27 Cal.2d 98, 162.) As a member of the public, I have a shared interest to uphold the will of the people when it enacted Article VII to rid the legislature of the inherent evils of the spoils system. I also share the peoples interest in requiring that our legislature not violate the state and federal constitutions. In McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436, 440 the court held: When the [public] duty is sharp and the public need is weighty, the courts will grant mandamus at the behest of an applicant who shows no greater personal interest than that of a citizen who wants the law enforced; when the public need is less pointed, the courts will hold the petitioner to a sharper showing of personal need. Article VII is a clear restraint on the legislature as ultimate paysetter of employee salary. The merit principle enshrined within Article VII requires the competitive exam process to ensure that pay is only based on merit. When the legislature pays similarly classified attorneys differently, based on factors other than merit, the legislature renders the competitive exam requirement meaningless. Accordingly, the public duty of the legislature to

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adhere to the constitutional mandates of Article VII is clear and pointed. The same is true with the state and federal constitutional restrictions upon the legislature not to violate due process protections and not impair its obligations of contracts. The public need is weighty to require that the California legislature adhere to the will of the people and to the state and federal constitutions. I share the same interest as the public to ensure employee salary is premised on merit because the failure to adhere to the merit principle results in inefficiency in government. For example, without horizontal parity in salary, the legislature can pay employees with less experience higher salaries than more qualified employees. The public loses when it does not get true value in employee services. Strict adherence to the Article VII also keeps the legislature safe from itself. Without like-pay-for-like-work, the majority party in the legislature can eviscerate the political power of the minority party by weakening its workforce. For example, from February 1, 2009 through March 31, 2011, the Democrat-controlled legislature paid higher salaries to the employees of other politicians even though those employees were primarily paid from the general fund. In contrast, the legislature paid lower salaries to similarly classified employees of the politically-appointed bosses from the Republican Governor. For the furloughs via contract from April 1, 2011 through June 30, 2013, the legislature paid higher salaries to similarly qualified SCIF attorneys from April 1, 2011 through June 30, 2012. From July 1, 2012 through June 30, 2013, the legislature paid higher salaries to similarly classified LCB attorneys utilized by the legislature. The varying salary systems were unrelated to merit. Although the reasons for the above disparate salary may have been an unintended consequence of other factors, Article VII allows no room for the discretion of the legislature. Accordingly, I share a public interest in efficiency in government and to protect the minority of any political party from the tyranny of the majority of any political party. REMAINING ABC SALARY: SALARY TAKEN VIA EXECUTIVE ORDERS FEBRUARY 1, 2009 THROUGH MARCH 31, 2011 As a resident and taxpayer of California, I petition this court to the return the salary unlawfully taken from special fund employees who lost pay from February 1, 2009

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through March 31, 2011 in order to remedy the constitutional violations of due process and obligation of contracts. The withholding of salaries from the employees of the ABC served no legitimate purpose and unlawfully impaired the ability of the ABC to protect health and safety since furloughs reduced enforcement and administration of the ABC Act by nearly 15 percent for over two years. STATUTE OF LIMITATIONS The three-year statute of limitations for a claim to wages, pursuant to Code of Civil Procedure section 338, should at least toll through November 4, 2010 because Code of Civil Procedure section 338 allows for tolling due to an omission of a material fact. Other than the legislature, no one knew the legislature supposedly reduced my salary until November 4, 2010. Even though the respondents denied all access and opportunity for administrative relief, I did not sit on my hands. I filed amici curiae briefs with the Supreme Court of California (PECG, supra, 50 Cal.4th 989) and for the special fund suit in the First District Court of Appeal (California Attorneys, etc. v. Arnold Schwarzenegger et al. (Feb. 26, 2010, A127777) (revd & remand Sept. 29, 2011) [nonpub. Opn.]) where I raised many issues raised here. In addition, any claim premised on the acts of Governor Brown, in his official capacity or as agent to the legislature, on February 1, 2012, are properly within any statute of limitations. Most important, given the unprecedented unavailability of administrative remedies, the bad faith of the legislature, and the total lack of any due process, this court should favor deciding this Petition on the merits. Relief afforded by this Court will not prejudice the legislature, Governor Brown, or the ABC. Repayment of my salary will not hurt the general fund because the ABC pays my salary and the general fund can never incur a debt obligation to the ABC in the Budget Act. Moreover, no harm will befall the ABC since it is operating with an unprecedented surplus and the ABC has a legal obligation to pay my fixed salary of appointment, even when the ABC did not require attorney services on a number of normal work days. Regarding the ABC, when furloughs began in February 2009, the ABC fund contained a healthy surplus of $13.8 million dollars for the enforcement and administration of

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the Act. This surplus was 28 percent over and above its 49.3 million dollars in operating costs for 2008-20098. The ABC typically operates with a 10 percent surplus above and beyond its operating costs of roughly 50 million dollars per year. A surplus represents monies already appropriated by the legislature for use by the ABC. As of August 1, 2010, the surplus was 21.1 million dollars; this surplus was 47 percent over and above its operating costs of 44.8 million dollars.9 As of 2012, the surplus blew up to $32 million dollars, 59 percent over and above its costs.10 The current surplus for the enforcement and administration of the ABC Act is over $32 million dollars.

Governors Proposed Budget 2010-2011, ABC Budget Fund Condition Statement: fiscal year 2008-2009, at <http://www.ebudget.ca.gov/2010-11-EN/pdf/GovernorsBudget/2000/2100FCS.pdf> [as of July 20, 2013].
9

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Governors Proposed Budget 2012-2013, ABC Budget Fund Condition Statement: fiscal year 2010-2011, at <http://www.ebudget.ca.gov/2012-13-EN/pdf/GovernorsBudget/2000/2100FCS.pdf> [as of July 20, 2013].
10

Governors Proposed Budget 2013-2014, ABC Budget Fund Condition Statement: fiscal year 2011-2012, at <http://www.ebudget.ca.gov/2013-14/pdf/GovernorsBudget/1000/2100FCS.pdf> [as of July 20, 2013].
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IV.

PRAYER Petitioner hereby incorporates by reference all of the foregoing paragraphs as if

fully set forth herein. Wherefore, and for the reasons stated more fully below, petitioner prays that this Court: 1. Grant this petition and issue a writ of mandate directing respondents to return all earned salary of Petitioner retained by the ABC from February 1, 2009, through March 31, 2011 and from April 1, 2011 through June 30, 2013. 2. Direct respondents Governor Edmund G. Brown, Jr., the Legislature of the State of California, Controller John Chiang to return all earned salary from February 1, 2009, through March 31, 2011 and from April 1, 2011 through June 30, 2013 to attorneys represented by CASE in Work Week Group- Salary Exempt. 3. Direct respondents to return salary taken from all other ABC civil-service employees during furloughs from February 1, 2009 through late 2010 or early 2011 (depending upon bargaining unit). 4. Direct respondents to pay statutory interest. 5. Direct respondents to pay attorney fees pursuant to Civil Code of Procedure section 1021.5. 6. Declare that the legislature and executive cannot reduce individual attorney salary outside of collective bargaining. 7. Declare that the legislature and executive cannot reduce individual salaries of employees of the ABC due to a fiscal emergency of the general fund. 8. Declare that collective bargaining for salary is unconstitutional as applied to attorneys in BU2. 9. Grant such further relief as may be just and proper

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V.

MEMORANDUM OF SUPPORTING POINTS AND AUTHORITIES A. State attorneys must receive the fixed-salary of appointment, even when not required to work a normal workday Petitioner hereby incorporates by reference all of the foregoing paragraphs as if

fully set forth herein. Already a permanent employee ( 18528), I entered into a new appointment on October 31, 2008 where I accepted a full-time11 attorney position in exchange for a monthly, fixed salary. I performed legal services requested and required in exchange for the fixed salary as noted in my Report of Appointment. An appointment is the offer to and acceptance by a person of a position in the State civil service. ( 18525.) A full-time position or appointment is a position or appointment in which the employee is to work the amount of time required for the employee to be compensated at a full-time rate. ( 18550.) In exchange for a fixed salary, I cannot receive any salary beyond the fixed amount for the performance of my official duties. In other words, I cannot accept any form of payment from the public or request a higher salary from the State for doing my job and the State cannot pay less than the fixed amount of my full-time appointment. (See Swepston v. State Pers. Bd. (1987) 195 Cal.App.3d 92, 95 [the term salary has been used in the State Civil Service Act to denominate compensation of a fixed sum for all services rendered]; Proctor v. S.F. Port Authority (1968) 266 Cal.App.2d 675, 680 [salary is fixed compensation paid at regular intervals].) Section 18000 requires the payment of a fixed salary for all services rendered: The salary fixed by law for each state officer, elective or appointive, is compensation in full for that office and for all services rendered in any official capacity or employment whatsoever, during his or her term of office, and he or she shall not receive for his or her own use any fee or perquisite for the performance of any official duty. As an attorney in Work Week Group- Salary Exempt12 (WWG-SE), BU2, my fixed salary cannot be reduced when not required to work a normal workday. The salary rules established by CalHR for WWG-SE provide:
11 12

CalHR (formally DPA) Exempt Salary Schedule (2011) at <http://www.calhr.ca.gov/Documents/exempt-salaryschedule.pdf> [as of July 12, 2013].

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13

If an employee in this subgroup is not required by the appointing power to work a normal workday or part thereof, the employee nevertheless shall receive the regular rate of pay without deduction for the entire pay period. WWG-SE requires that: The regular rate of pay is full compensation for all time that is required for the employee to perform the duties of the position. (exhibit B.) Further, unlike other employees, attorneys are not required to record hours worked for the purposes of payroll. (exhibit B.) Pursuant to the MOU13 in effect during furloughs for BU2, the State requires me to . . . work all hours necessary to accomplish [my] assignments and fulfill [my] responsibilities in exchange for a fixed, monthly salary. (MOU, BU2 (July 1, 2005- June 30, 2007) Hours of Work and Work Schedules for WWG-SE, p. 29, at <http://www.calhr.ca.gov/Documents/bu02-20050701-20070630-mou.pdf> [as of July 18, 2013].) As professional employees, attorneys do not have fixed hours due to the predominately intellectual nature of required work that is not easily measured by the hour. Section 3521.5 defines a professional employee as: (a) any employee engaged in work (1) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (2) involving the consistent exercise of discretion and judgment in its performance; (3) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; Because attorneys have a fixed salary without fixed hours, the monthly salary cannot be reduced by simply reducing office hours. A civil service employee, with a fixed salary, shall receive only that salary regardless of whether those duties are diminished or increased. (Martin v. Henderson (1953) 40 Cal.2d 583, 589-590 Martin.) In Martin, civil service police officers claimed compensation above the fixed salaries of their appointments for working hours beyond the regular work day at a time when no provision in the law provided for overtime compensation. (Id. at 589-591.) Although the employees were classified as police officers, the Court found they were employees for the purposes of civil service. (Id. at

MOU, BU2 (July 1, 2005- June 30, 2007) Hours of Work; exhibit B: Work Schedules for WWG-SE, p. 29, at <http://www.calhr.ca.gov/Documents/bu02-20050701-20070630-mou.pdf> [as of July 18, 2013].
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589.) The Court held Political Code section 1033, now Section 1800014, codified the oft repeated rule that a civil service employee, with a fixed salary, shall receive only that salary regardless of whether those duties are diminished or increased. (Id. at 589-590.) It is unjust to require me to remain available to perform attorney services without regard to number of hours and then cut those hours to justify a decrease in salary. When public employee is paid by time, as by day, week, or month, rather than by amount of work which employee does, he or she is bound, in absence of statute, to render services without regard to number of hours worked. (Martin, supra, at 590.) The state retains full-time attorneys through the payment of a fixed, monthly salary. One week, the state could require 70 hours of attorney services and pay only a fixed salary. The following week, the state could then require ten hours of work to justify a 75 percent reduction of salary for that week. As a result of such a system, an attorney would work 80 hours, but only be paid for 50. Like the employees in Martin, the appointment to attorney exchanges a monthly, fixed salary for all services rendered without any statutory exceptions. Accordingly, the legislature cannot justify the reduction of my salary by merely reducing hours. Furthermore, I rely on a fixed salary because the requirements of my position make it nearly impossible to commit to a work schedule from an outside employer. Due to the changing demands of litigation, attorneys must make themselves available to clients and witnesses beyond the normal work day. Weekends get consumed by unexpected hearing briefs added to other time-sensitive workloads. Further, an attorneys personal schedule is often subject to interruption when hearings go long or get continued at the last minute. On the average, I spent one month per year staying in hotels litigating for the State over the course of furloughs. Thus, I could rarely commit to an outside employer with certainty. In essence, a fixed salary retains my obligation to work as many hours as it takes while putting the needs of the State first. Moreover, the State retains control over all outside employment. In other words, the State decides if it will let me earn income outside of State service. I rely on a fixed salary because there is no opportunity for overtime compensation since attorneys are not paid by the hour. Attorney placement in WWG-SE
14

Former Political Code section 1033 (Stats. 1905, ch. 229 1, p. 212) was reenacted as Section 18000 without substantial change in 1945. (Stats. 1945, ch. 123 1, p. 228.) Present-day Section 18000 remains without substantial change through two subsequent amendments.
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prohibits any payment beyond a fixed salary. In fact, no State attorney received overtime compensation during furloughs. If I were an hourly employee, I would have been paid overtime compensation. For example, the ABC paid over $600,000 in yearly overtime compensation to furloughed employees who are paid a fixed salary for fixed hours. If I had fixed hours, then I could have made up for the salary reductions through overtime compensation. Instead, the State worked me as a full-time employee, but only paid me as a part-time employee15. The State cannot reduce my fixed salary when not required to work a normal workday because attorneys are not paid by the hour due to the nature of the profession as evidenced by the placement of attorneys in WWG-SE. As such, this Court should issue a writ to the Respondents to pay me attorney salary for attorney services rendered. B. As applied to attorneys, furloughs violate the like-pay-for-like-work mandate of the Constitutional merit principle enshrined within Cal. Const., art. VII, Section 1, subdivision (b) (Article VII) The legislature violated the merit principle within Cal. Const., art. VII, Section 1, subdivision (b) (Article VII) and Sections 18500 and 19826 when it ignored the like-paylike-work mandate of State Civil Service through its creation of varying salary systems for similarly classified attorneys with comparable duties and responsibilities, without regard to merit. 1) Article VII is a restraint on the legislature as paysetter of employee salary. Although setting compensation for public employees is ultimately a legislative function (State Trial Attorneys' Assn. v. State of Cal. (1976) 63 Cal.App.3d 298, 300 (State Trial)), it cannot set pay in violation of the Constitution. Article VII requires: In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination. This means the legislature cannot render the competitive exam process meaningless by paying different salaries to similarly classified

15

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18551: A part-time position or appointment is a position or appointment in which the employee is to work a specific fraction of the full-time work schedule.

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employees. To do so would eviscerate the constitutional requirement that appointment and promotion be premised on merit and fitness. The constitutional merit principle permeates state civil service employment as a restraint against politically motivated appointments and promotions made by the legislature as a response to the evils of the spoils system. (Pac. Legal Found. v. Brown (1981) 29 Cal.3d 168, 174 [Article VII protects the merit principle from potential legislative encroachment]; State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 444[. . . the voters of California wisely took the merit principle of state employment out of the hands of the legislature by enshrining it in the Constitution. . .].) The spoils system is a pay-to-play employment system where those in power award positions and compensation without regard to merit. Under the spoils system, people may give political patronage or call in favors in exchange for government appointments and promotions. This system is costly when compensation is not tied to merit because the public pays for and expects qualified workers, yet receives inferior services at a premium price. Further, since stable employment depends upon the success of ones benefactor, employees tend to utilize government employment and resources primarily as the means to keep their political bosses in office. As a result, true government work takes backseat to the business of maintaining political power. Before California, New York established a civil service system premised on the merit principle in response to the spoils system. The high court of New York, in Rogers v. Buffalo (1890) 123 N.Y. 173, 177, best explains the evils inherent in the spoils system: The semi-barbarous maxim that "to the victors belong the spoils," had been the foundation-stone upon which the system of appointments to the civil service of the nation had been placed for a number of years. The continuous and systematic filling of all the offices of a great and industrious nation by such means, became conclusive proof in the minds of many that the nation itself had not in such matters emerged from the semi-barbarous state, and that it had failed to obtain the full benefits arising from an advanced and refined civilization. Contests between political parties under these circumstances, must, in the absence of some great and exceptional question, degenerate into mere struggles for the possession of the spoils of office and they necessarily bring out every low, selfish
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and sordid quality of the participants therein, and corruption and fraud at the elections become the usual accessories thereto. In these contests all principle is lost sight of, and a victory is regarded as a simple means by which to obtain or retain possession of office. The prevailing system finally became . . . so subversive of every right principle upon which the business of the public ought to be conducted. . .

The State Civil Service Act The State Civil Service Act ( 18500, et seq.), defined by Section 18500, was enacted to implement and carry out Article VII in order to secure high standard of public service and high standard of conduct in public service. (Byrne v. State Personnel Bd. (1960) 179 Cal.App.2d 576, 582.) Subdivision c, subsection 2, reiterates the merit principle of Article VII and couples it on par with the like-pay-for-like-work mandate in subsection 1. Section 18500 makes clear the purpose of the State Civil Service Act is: (a) To facilitate the operation of Article VII of the Constitution. (b) To promote and increase economy and efficiency in the state service. (c) To provide a comprehensive personnel system for the state civil service, in which: (1) Positions involving comparable duties and responsibilities are similarly classified and compensated. (2) Appointments are based upon merit and fitness ascertained through practical and competitive examination. Article VII restrains the legislature from even potential encroachment of the constitutionally protected merit principle in order to avoid a return to the evils of the spoils system. It doesnt matter why the civil service attorneys of politicians received higher salaries than others similarly classified. One need not show that employee kick-backs to the politically-elected paysetters or bosses bought higher salaries. For example, under collective bargaining, only employees who agree to give money beyond the fair-share portion of representation can vote on their own employment contracts. This employee money goes to those in power in the legislature and to other politically-elected bosses, like the attorney general. None of this employee money can go to political-appointed bosses of the executive. From the outside or inside looking in, it appears employee kick-backs to politicians resulted in

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higher salaries to similarly classified attorneys. Since Article VII is a restraint on legislative discretion, this court need not look to any justification offered by the state. Thus, the violation occurs whenever salary is not premised on merit and without regard to the competitive exam. Here, the legislature clearly unhinged the merit principle because it paid equally qualified attorneys differently, less qualified attorneys more than attorneys with superior qualifications, and non-attorney salary to others performing attorney work. For example, an attorney in Range D will receive a 5 percent Merit Salary Adjustments (MSA) for each year of satisfactory performance until the top of the salary range is reached. These increases fairly compensate attorneys for experience because experienced attorneys are presumably more valuable than attorneys with less experience in a competitive exam system. Ignoring merit and seniority, the legislature paid furloughed attorneys in Range D, with nine years of legal experience, the same as their counterparts in the LCB with just six years of experience. In other words, the legislature ignored Article VII and rendered the competitive exam process meaningless. From February 1, 2009 through March 31, 2010, a Range B attorney working for the LCB or for the DOJ earned a yearly salary of $61,644; whereas a Range B attorney working elsewhere with comparable experience, qualifications, responsibilities, and duties, received only $52,397. Less qualified Range A attorneys in the LCB earned $56,088 per year. As a result, as a furloughed Range B attorney, I not only received far less salary than attorneys in comparable positions, I received an even smaller salary than less-qualified attorneys. Therefore, although the legislature is the ultimate paysetter of employee salary, Article VII removes any legislative discretion to pay different salaries to similarly classified employees. Since attorneys are salaried professionals exempt from FLSA protections, a reduction in hours cannot justify the disparate treatment.

2) Article VII requires like-pay-for-like-work The failure to pay two similarly classified employees the same salary renders the competitive exam requirement in Article VII meaningless; there is no point in the administration of a competitive exam to determine merit and fitness if the legislature can

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ignore the results. In State Trial, supra, 63 Cal.App.3d 298, civil service attorneys working for the Department of Transportation sought salary parity to attorneys working for other state agencies. (Id. at 300-301.) The transportation attorneys claimed a violation of the like-payfor-like-work principle within former Section 18850, subdivision (a), because attorneys employed by the DOJ and the LCB received higher salaries even though all attorneys shared the same level of duties and responsibilities. (Id. at 300-302.) Former Section 18850, subdivision (a), was repealed and reenacted as Section 19826, subdivision (a), without change to the like-for-like-pay mandate. (Stats. 1981, ch. 230 32 [repealing 18850]; Stats 1981, ch. 230 55 [enacting 19826].) Section 19826 authorizes CalHR (formally the DPA, formally SPB) to establish salary ranges subject to the constraints of the merit principle enshrined within Article VII. The relevant portion of Section 19826 provides: (a) The department shall establish and adjust salary ranges for each class of position in the state civil service subject to any merit limits contained in Article VII of the California Constitution. The salary range shall be based on the principle that like salaries shall be paid for comparable duties and responsibilities. The legislature and Governor Brown ultimately approved and paid higher salaries to the attorneys in the DOJ and LCB for the fiscal year 1976-1977 than to other similarly classified attorneys who did not work for the legislature or other politically-elected bosses. (State Trial, supra, 63 Cal.App.3d 298, 301-302.) Arguing on behalf of the State, the Attorney General in State Trial asserted his attorneys rightly received higher compensation because attorneys working for political appointees were subject to salary caps due to salary limitations statutorily imposed on political appointees by the legislature. (Id. at 302.) Moreover, the State asserted that the like-pay-for-like work principle in Section 19826 for establishing salary ranges was merely discretionary. (Ibid.) The court rejected both arguments through analysis of Section 19826 and the purpose of the State Civil Service Act as defined in Section 18500. (Id. at 303.) The court held that the like-pay-for-like-work principle within Section 19826 requires horizontal parity among comparable positions throughout the civil service structure. (Id. at 303-304; Cal. State Police Assn. v. State of Cal. (1981) 120 Cal.App.3d 674, 679 [species of fairness; requires salary parity within civil service].) Horizontal parity simply means that the legislature lacks discretion to pay its own or any other
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attorneys more salary than other similarly classified attorneys. In holding that like-pay-forlike-work principle is mandatory, the court in State Trial emphasized: . . . the preeminent and predominant role of the likepay-for-like work principle. . . [is] . . . among the cardinal objectives of the Civil Service Act. Government Code section 18500 proclaims in part: "It is the purpose of this part: . . . para. (c) To provide a comprehensive personnel system for the state civil service, wherein: para. (1) Positions involving comparable duties and responsibilities are similarly classified and compensated. . . . (State Trial, supra, 63 Cal.App.3d 298, 304.) Although the court held the SPB lacked discretion to interfere with like-pay-forlike-work mandate in 18850, the holding equally applies to acts of the legislature. This is so because Article VII is foremost a restraint on the legislature, thus, any delegation of legislative authority by statute must too contain the same restraint of discretion. While the court made no specific reference to Article VII or to the merit principle, it strongly relied on Section 18500 subdivision (c), as one of the cardinal objectives of the Civil Service Act. (State Trial, supra, 63 Cal.App.3d 298, 304.) Subdivision (c) nearly reiterates the mandate of Article VII in that it requires like-pay-for-like-work where a competitive exam ascertains merit and fitness. Though not addressed, subdivision (a) makes clear that the State Civil Service Act facilitates the operation of Article VII. The court held, without exception, that the like-pay-for-like-work principle be applied to reach dollar results. (Ibid.) Here, the varying dollar amounts of attorney salaries never related to merit and failed to meet salary parity to other similarly classified attorneys with comparable duties and responsibilities throughout state civil service. Accordingly, as in State Trial, the legislature violated Article VII when it reduced my salary below other equally and even less-qualified attorneys. Notwithstanding prior legislative approval of the disparate salaries unrelated to merit, the court ordered the restoration of salary parity to achieve dollar results. (State Trial, supra, 63 Cal.App.3d 298, 305.) Technically, the attorneys in State Trial could not receive their full salaries until appropriated. (Ibid.) The court apparently found no conflict with the separation of powers doctrine because the court only directed the legislature to appropriate funds as a result of a legal obligation. This Court need not direct the legislature to act here

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since the ABC fund is a continuous appropriation available for use for the enforcement and administration of the ABC Act, without regard to fiscal year. (See Bus. & Prof. Code, 25761, subd. (d); 16304, subd. (f).) The legislature appropriates the entirety of ABCs special fund money to the ABC each year for the enforcement and administration of the ABC Act. Any funds not used in any given fiscal year remain available for use to pay a legal obligation like salary. Thus, monies already in the ABC fund need not be re-appropriated by the legislature in order to restore salary parity. 3) Legislative or other fiscal considerations cannot circumvent the horizontal parity requirement of Article VII. In Theroux v. Cal. (1984) 152 Cal.App.3d 1, 4-5, a statute authorized retroactive pay adjustments to certain classes of employees if employed and/or retired by specified dates. The State denied statutory pay adjustments to those in the same job classes when employed by the specified date, but who left State service for reasons other than retirement. (Ibid.) Those excluded from the pay adjustments sought parity. (Id. at 4-5.) The court held the State violated the primary principle of the State Civil Service Act because a statute could not authorize the payment of different salaries to employees performing the same job. (Id. at 11.) Thus, if the legislature cannot violate the like-pay-for-like-work mandate of the State Civil Service Act by statute as in Theroux, it certainly cannot do so through an appropriation statute. Salary savings cannot justify a violation of the merit principle because the people of California did not grant a fiscal exception to the legislature. Civil service in its true sense means the substitution of business principles and methods in the conduct of the business of government, and especially the merit system instead of the spoils system in the matter of appointment to office, in order to obtain competency and greater efficiency by continued employment of faithful employees. Barry v. Jackson (1916) 30 Cal.App. 165, 169-170 (Barry).) In Barry, the City of Oakland abolished various civil service classifications and places of employment in order to save money. (Id. at 166.) The City then created new classifications with similar duties, lower salaries, and new places of employment. (Id. at 166167.) After the city terminated the employees in the higher paying positions, the employees sought reinstatement. (Id. at 167.) The court found that the City of Oakland endeavored to

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circumvent the object and purpose of its civil service system when it established two job classifications for the same position, but with materially different salaries. (Id. at 169.) As explained, civil service would be destroyed if the city could simply eliminate positions by ordinance and then create new positions at lower salaries just by changing the name of the job title. (Id. at 169- 170.) Since the reclassified positions were substantially the same as the abolished positions with higher salaries, the court held city violated the merit principle of civil service. Here, furloughs forced roughly 40 percent of the states attorneys into substantially lower paying positions by cutting salary by 15 percent, while still requiring attorneys to work as many hours as required without the right to overtime compensation. Just like the City of Oakland in Barry, the State here wanted to maintain the same level of public services, but for less money. To get more for less, both the City of Oakland and the State of California created identical job classifications with varying salary systems. More egregious than in Barry where the City of Oakland at least maintained horizontal parity, the legislatures creation of multiple salary systems here violated the efficiency principle of civil service where efficiency and competency are obtained through continued employment of faithful employees. (Barry, supra, 30 Cal.App. 165, 169.) As in Barry, salary savings cannot justify a violation of the merit principle because government needs to retain career employees in order to promote long-term efficiency in state government. Section 18500, subdivision (b), states that one of the primary purposes of the State Civil Service Act is to promote and increase economy and efficiency in the state service. The Supreme Court of California holds that efficiency is secured by the knowledge that promotion to higher positions will be the reward of faithful and honest service. (Steen v. Bd. of Civil Service Comm'rs (1945) 26 Cal.2d 716, 722.) Efficiency requires that salaries are tied to merit so as to retain and recruit loyal employees. Otherwise, less-qualified attorneys can earn higher salaries than more qualified attorneys. This not only cheats the taxpayer, such disparate treatment erodes an employment system designed to foster employees dedicated to careers within State service. The State favors career employees in order to avoid the high turnover costs associated with hiring, training, and loss of institutional knowledge. Here, the

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legislature fiscally favored its own in clear violation of Article VII, hid behind the governor until exposed by the Supreme Court, and arbitrarily took all of my discretionary income16 for close to two years. But for being indentured to a pension and health benefits, there is little incentive to remain loyal to a State when the legislature can ignore contracts, take any amount of salary, for any duration, for any reason, and without notice or opportunity to be heard. Even psychic income cannot make a career in civil service tenable as long as the legislature and the Governor ignore the Constitution. Just as the court prohibited the legislature from legislating higher salaries to attorneys working for the DOJ and LCB in State Trial than to other similarly-classified attorneys, the legislature cannot legislate through appropriations to justify disparate pay here. The disregard of the like-pay-for-like-work mandate renders the competitive exam process meaningless. In fact, no legislative action can excuse the destruction of the competitive exam process because Article VII is an absolute restriction to prevent such abuses by the legislature. While the power to appropriate is a grant of constitutional authority, the resulting appropriation is a mere statute subject to the mandates of Article VII. Accordingly, even never-ending funding gaps of the general fund cannot justify ushering in the evils of the spoils system. Given that the People thought it wise not to grant the legislature a fiscal exception to the merit principle enshrined within Article VII, this court should not create one. 4) The Executive cannot violate Article VII through a civil agreement Governor Brown violated equal protection and the merit principle when he authorized higher salaries to similarly classified attorneys in violation of Article VII. On February 1, 2012, CASE and Governor Brown agreed to return salary to some attorneys, at the expense of others, in order to avoid a decision on the special fund suit for CASE. In a settlement agreement with Governor Brown, CASE abandoned all claims on my salary as a special fund employee. (exhibit C.) The governor, or governor acting as an agent to the legislature, cannot side-step Article VII through a civil agreement. The reasons why similarly
16

U.S. Bureau of Labor Statistics, Consumer Expenditure Survey (1997) [Total U.S. discretionary income as of 1997 was roughly 15 percent of gross personal income] at <http://www.enotes.com/discretionary-incomereference/discretionary-income> [as of July 17, 2013].

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classified attorneys are paid differently do not matter; the merit principle requires horizontal parity. Without horizontal parity, the competitive exam process would be meaningless. Here, the memorialized justifications to return 70 days of salary taken from some attorneys and not others related to funding sources and mere form of appropriations for salary; neither of which relate to merit. Governor Brown, acting as paysetter, restored full salary to attorneys who were furloughed 70 days from departments that mostly receive no general fund monies and where no reduction was made to its departments appropriations in the budget acts. I was furloughed 70 days, the ABC takes no general fund monies, the legislature never reduced appropriations to the ABC, and ABCs fund is a continuous appropriation, available for encumbrance regardless of fiscal year. The argument as to form of appropriation to deny contracted salary lacks merit. Every agency of the State gets its funds appropriated in some fashion, whether through the budget act, statute, or a combination of both. Governor Brown chose to return salary to attorneys at the Prison Industries Authority even though it is a continuous appropriation fund like the ABC. (Cal. Pen. Code 2806, 2816.) Likewise, First 5 Association of California receives its funding through appropriations. (Health & Saf. Code 130105.) Governor Brown also returned salary to the Housing Finance Agency even though it can take general fund appropriations. (Health & Saf. Code 50956.) When salary no longer relates to merit, ruling political parties can weaken or destroy political foes by merely reducing the salaries of their employees. For example, lowering salaries would likely interfere with the ability of an elected official to carry out the mandates of office because employees will move to work where there is higher pay. Without the ability to offer a competitive salary, that department will lose the ability to recruit and retain employees. On the other hand, when a politician can pay its employees higher salaries than others similarly classified, those employees might feel beholden to politically support their benefactor. In Cornell v. Harris (1936) 15 Cal.App.2d 144, 152, the court acknowledged the correlation between salary and the merit principle as described by the Honorable Curtis D. Wilbur: If the supervisors, absolutely unhampered by any restriction upon the power to create deputyships and fix their compensation may increase or diminish their compensation at will, as well as increase
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or diminish the number of deputies, we have at hand all the material to give us the very worst feature of the spoils system so graphically described by Justice Peckham. . By decreasing the number or lowering the compensation they could virtually prevent him from performing the duties of his office, and so hamper him that he would quickly yield to the political pressure brought to bear upon him by the board of supervisors. The above supervisors are interchangeable with the legislature as the legislature sets employee pay. Just as in Cornell, the danger lies in the possibility of corruption; one need not prove an improper motive or actual misdeeds to show a violation of Article VII. Thus, this court should issue a writ to Governor Brown directing him to authorize the return of my salary like he did for the other attorneys similarly classified and situated on February 1, 2012. 5) The legislature cannot unilaterally reduce attorney salary through the annual budget act without violating Article VII The legislature cannot reduce attorney salary in the annual Budget Act without violating Article VII because not all attorney salary comes from specific appropriations made in each annual budget act. As a result, the legislature can only reduce salary in the budget act for those employees who depend upon an annual appropriation. Essentially, the legislature can only reduce salaries by withholding necessary funding. Thus, the legislature cannot reduce salaries when it does not reduce appropriations or when appropriated monies already exist for such purpose. Most special fund employees, like those from the ABC, are paid from continuous appropriations of fees collected for a particular purpose. Even when appropriations for special fund departments get enacted in the budget act, monies already appropriated to special funds remain available for encumbrance, regardless of fiscal year. In other words, as long as a special fund department maintains a surplus of monies already appropriated by the legislature, individual salaries cannot be reduced by merely reducing subsequent appropriations. Other special fund employees are paid entirely from continuous appropriations enacted outside the budget act. For example, employees of the California State Lottery Commission and SCIF are funded through continuous appropriations not recorded in the
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budget act. For the most part, the legislature can only reduce salary by reducing general fund appropriations to attorneys paid from taxpayer monies in the general fund. Since the legislature cannot reduce all attorney salary in the budget act, it cannot reduce any without violating the competitive exam process of Article VII. 6) The legislature and executive cannot escape the restraint of Article VII through a collective bargaining agreement Following the leadership of Governor Schwarzenegger, Governor Brown kept in place Governors Executive Order No. S-12-10 when he became governor on January 3, 2011. Governor Brown chose to keep taking my salary despite the fact he knows taking my salary has zero effect on the on-going fiscal chaos of the general fund. Identical to Governor Schwarzenegger, Governor Brown continued involuntary pay cuts for roughly 40 percent of state attorneys until CASE would agree to voluntary pay cuts for all members, Effective April Fools Day, 2011, Governor Brown lifted the involuntary furloughs for the remaining 40 percent of state attorneys furloughed since February 1, 2009. CASE urged members to vote for 15 months of voluntary furloughs to begin April 1, 2011. On March 22, 2011, CASE reminded members in an email not to exploit the end of involuntary furloughs because [f]or the first time in years, CASE is dealing with an administration that is bargaining in good faith. Despite such a positive endorsement, Governor Brown told employees we had to agree to voluntary cuts since the legislature was going to take our salary whether employees agreed or not. As a result, CASE members ratified the pay cuts on April 17, 2011. For nearly three weeks, I rendered attorney services to the ABC without knowing what my salary would be. The legislature ratified a 27-month MOU for BU2 on May 16, 2011, effective April 1, 2011 through June 30, 2013. (Stats. 2011, ch. 25 2 (SB 151).) For the first 15 months of the employment contract, and without regard to merit, the legislature paid the attorneys at SCIF roughly 5 percent higher salaries than to other similarly classified attorneys exempt from furloughs. The legislature seemingly justified this unequal treatment as required by statute. As Article VII is a restraint on legislative authority, the legislature cannot usurp the constitutional mandate by citing to its own statutes.

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In the remaining year of the employment contract, and without regard to merit, the legislature secretly paid attorneys in the LCB higher salaries than similarly classified attorneys. Despite the existence of a contract without pay cuts for the final year from July 1, 2012 through June 30, 2013, CASE negotiated a side-letter agreement on July 17, 2012 with Governor Brown for another year of salary reductions at roughly 5 percent per month, retroactive to July 1, 2012. For over two weeks, I thought I performed for full salary. I did not learn until July 17, 2012, that the state was paying me 5 percent less. Before member ratification, CASE told members the legislature would impose involuntary salary reductions for all attorneys in the budget act (even though not all attorneys are paid through the budget act) if employees did not agree to voluntary salary reductions. In July of 2012, Governor Brown issued a furlough memo to force furloughs on employees from two unions that would not bargain for voluntary furloughs. As Article VII is a restraint on legislative authority, the legislature cannot usurp the Constitution to pay its attorneys in the LCB higher salaries than other similarly classified attorneys. Since the merit principle of Article VII mandates horizontal parity to achieve dollar results, I request the same salary that the legislature paid to similarly classified attorneys in the LCB and SCIF. C. Furloughs violated the substantive and procedural due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the due process and equal protection clauses of California Constitution, Art. I, 7. As a permanent employee, the state violated my state and federal substantive and procedural due process and equal protection rights when it reduced my salary and demoted me by executive order, without cause, without pre- or post-deprivation safeguards, and in bad faith. The merit principle of Article VII protects employees from arbitrary, adverse actions of superiors by guaranteeing due process and equal protection of the laws. The Fifth and Fourteenth Amendment to the United States Constitution, along with California Constitution, Article I, section 7, subdivision (a), provide that a state shall not deprive any person of life, liberty, or property, without due process of law. To help insure that the goals of civil service are not thwarted by those in power, the statutory provisions implementing the constitutional

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mandate of Article VII invest employees with substantive and procedural protections against adverse17 actions by their superiors. (Skelly, supra, 15 Cal.3d 194, 206.) The Court in Skelly held that the statutory scheme regulating civil service employment confers upon an individual who achieves the status of permanent employee a property interest in the continuation of his employment which is protected by due process. (Ibid.) As a threshold matter, furloughs constituted an adverse action for the following reasons: my salary fell below the salary range of an attorney as required by California Code of Regulations, title 2, section 599.673, the state constructively changed my appointment from full to part-time attorney, and I was suspended for 70 days. Section 19570 defines adverse action as a dismissal, demotion, suspension, or other disciplinary action. While the state may argue furloughs were not punitive, they were adverse. Before any such deprivation, due process requires minimal adherence to the constitutional protections afforded by Section 19574. (Skelly, supra, 15 Cal. 3d 194, 215.) Section 19574 provides: (a) The appointing power, or its authorized representative, may take adverse action against an employee for one or more of the causes for discipline specified in this Article. Adverse action is valid only if a written notice is served on the employee prior to the effective date of the action, as defined by board rule. The notice shall be served upon the employee either personally or by mail and shall include: (1) a statement of the nature of the adverse action; (2) the effective date of the action; (3) a statement of the reasons therefor in ordinary language; (4) a statement advising the employee of the right to answer the notice orally or in writing; and (5) a statement advising the employee of the time within which an appeal must be filed. The notice shall be filed with the board not later than 15 calendar days after the effective date of the adverse action. The Respondents ignored Section 19574, denied me recourse, and kept closed all doors to administrative relief by its failure to adhere to the constitutional protections built into the State Civil Service Act. The ABC repeatedly denied me the use of state resources to defend against the deprivations normally afforded to civil service employees. In violation of Skelly, the State never told me in writing that it had proper grounds for cause or that I had
17

In 1981, the legislature amended Section 19570 to replace punitive with adverse. (Stats. 1981, ch. 526 1.)
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rights to dispute before the deprivation. The state also denied me an evidentiary hearing pursuant to Section 19578. Moreover, furloughs violated equal protection because salary reductions were not made in accord with the merit principle of Article VII. For example, layoffs cannot be imposed without adherence to due process and merit considerations like seniority. Furloughs, on the other hand, bypassed all due process requirements, Article VII , and the entire State Civil Service Act. As a permanent employee, the State failed to provide me a drop of due process despite the fact that tenure of civil service employment is subject to good behavior. ( 18500, subd. c.) Due process safeguards are designed to prevent abuses and resulting harm from overreach. If allowed the opportunity to challenge before such deprivation (or even soon after), perhaps I could have mitigated the years of financial hardship caused by the unilateral salary reductions imposed without cause, in bad faith, or a legitimate, government purpose. The state may argue that the deprivations were unrelated to performance, thus, the state can sidestep minimal due process protections. However, the state acted in bad faith when it unjustly enriched the ABC fund with 70 days of my salary without any rational relationship to the fiscal crisis years of the general fund. As such, the actions of the state, which caused harm, are subject to court review. (See Trujillo v. L.A. (1969) 276 Cal.App.2d 333, 338-339 [court review when civil service laws applied in bad faith].) Even if a fiscal crisis could constitute grounds for cause, deprivation of my salary was arbitrary because the taking of my salary did nothing to help the stated fiscal crisis of the general fund. My salary does not come from the general fund and my department operates with a continuous appropriation that can never be used to pay expenses of the general fund. Given the State ignored both state and federal constitutions, denied me administrative relief, withheld all of my discretionary income for over two years, and hid the legislature behind the governor as the true actor, this court should grant relief and issue a writ to return the 70 days of salary illegally withheld. I did raise the issue of notice and opportunity to be heard in two amicus briefs. Being a brand new attorney, I did the best I could to be heard given I still had a full-time job to learn, I spent an average of a month away from home each year of furloughs on State business, I suffered from an extreme hardship caused by the state,

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and I had to learn a whole lot of law before I could attempt to litigate against top-paid attorneys with endless resources of taxpayer dollars. At the very least, I hope this court will grant me the opportunity to be heard on the merits due to the abuses of power and bad faith actions by the executive and legislature. D. Furloughs impaired the States obligation of contracts in violation of Article I, section 10, of the United States Constitution and Article I, section 9, of the California Constitution. In good faith, I rendered attorney services for the ABC in exchange for a fixed income and the state broke its promise to pay me a salary I could rely on to pay my living expenses, underwater mortgage, law school loans, and personal debt obligations. In violation of the contract clauses of the federal and state constitutions, the legislature substantially impaired its contractual obligation to pay me a fixed, monthly salary, regardless of hours worked. Article I, section 10, of the United States Constitution states no state shall pass any law impairing the obligation of contracts. Likewise, Article I, section 9, of the California Constitution provides that a law impairing the obligation of contracts may not be passed. To show a constitutional violation, there must be an implied or express contract. Next, a court must determine whether the legislation operates to substantially impair contractual obligations. (Energy Reserves Group, Inc. v. Kansas Power & Light Co. (1983) 459 U.S. 400, 411.) If the impairment is more than minimal, then a court must determine if the legislation served a legitimate government purpose. (Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234, 245.) Employment Contract The MOU for BU2 and formal notice of appointment comprise the terms and provisions of an employment contract protected by both state and federal constitutions against unlawful impairment by the legislature. Public employment gives rise to certain obligations which are protected by the contract clause of the Constitution; promised compensation is one such protected right. Once vested, the right to compensation cannot be eliminated without constitutionally impairing the contract obligation. (White v. Davis (2003) 30 Cal.4th 528, 565.) For the purposes of Section 3517.6, the legislature approved the terms and provisions of my employment contract for BU2 in an MOU on May 18, 2006, effective July 1,

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2005 through June 30, 2007. (Stats. 2006, ch. 28, 2.) While Section 3517.6 generally requires legislative approval in the budget act for any terms or provisions in an MOU that require the expenditure of funds, budget act approval is not required for BU2. (Stats. 2006, ch. 28, 4.) Most important, all terms and provisions of my employment contract remained in effect through March 31, 2011, due to the operation of the evergreen clause of Section 3517.8. (PECG, supra, 50 Cal.4th 989, 1039-40; see Green v. Mt. Diablo Hospital Dist. (1989) 207 Cal.App.3d 63 (evergreen clause is not severable from the agreement).) After appointment to a full-time attorney in exchange for a fixed-monthly salary, the State issued a Notice of Personnel Action (NOPA), which memorized the terms of my appointment. A formal notice of appointment is the equivalent of an employment contract. (Bd. of Regents v. Roth (1972) 408 U.S. 564, 566, fn. 1; see Cal. Teachers Ass'n v. Cory (1984) 155 Cal.App.3d 494, 505 [an implied contract of the state is the same as an express contract for purposes of the prohibitions against impairment].) Since the Supreme Court of the United States determined a formal notice of appointment is equivalent to employment contract, issue preclusion prevents re-litigation of the issue here. Substantial Impairment Furloughs constituted a substantial impairment to my employment contract since 70 days of furloughs, via executive order, constructively transformed my appointment from full to part-time attorney. This unilateral change resulted in an average loss of nearly 15 percent of salary, per month, for over two years. The true loss, as measured by the consumer price index (CPI), was closer to 20 percent18. A court must determine whether the legislation operates to substantially impair contractual obligations. (Energy Reserves, supra, 459 U.S. 400, 411.) The Ninth Circuit found substantial impairment to a collective bargaining agreement when a state temporarily delayed payment of expected salary. (U. of Haw. Prof'l Assem. v. Cayetano (9th Cir. 1999) 183 F.3d 1096, 1099.) Based on the course of dealings over 25 years, the Circuit found an implied promise to pay salary bi-monthly created a contractual expectation. (Id. at 1102.) Relying on the U.S. Supreme Court, the Ninth Circuit held that the state may not unilaterally implement
18

The legislature last adjusted the $4674 monthly salary for attorney on July 1, 2006. By 2009, that salary already lost 6 percent in value due to inflation.
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changes on bargainable topics. (Ibid.) The Ninth Circuit found substantial impairment in pay lags and reasoned: Plaintiffs are wage earners, not volunteers. They have bills, child support obligations, mortgage payments, insurance premiums, and other responsibilities. Plaintiffs have the right to rely on the timely receipt of their paychecks. Even a brief delay in getting paid can cause financial embarrassment and displacement of varying degrees of magnitude. (Id. at 1102.) The Circuit also found substantial impairment when another state temporarily withheld 10 percent of employee salary over the course of 10 weeks. The Court reasoned that the state had other options to raise revenue than to obtain forced loans to it from its employees. (Id. at 1105.) A loss of 10 percent for 10 weeks is not insubstantial to one confronted with monthly debt payments and daily expenses for food and the other necessities of life. (Ibid.) Here, the State permanently took an average of 15 percent of salary over 105 weeks. Like those employees, I too had a right to rely on the promise of a fixed salary. After all, [a] promise to pay, with a reserved right to deny or change the effect of the promise, is an absurdity." (Murray v. Charleston (1877) 96 U.S. 432, 445.) As a result of the unexpected loss of income, I defaulted on a zero-interest loan made in reliance of my fixed salary, I increased consumer debt beyond manageable amounts, my credit rating went from very good to merely good, and I lost early repayment advantages of one student loan due to my numerous requests for forbearance during furloughs. Unlike the substantial impairments found in the Ninth Circuit, the impairments caused by the legislature were more extreme in that furloughs were unlimited in scope and duration and the contracted salary taken was permanent. Thus, this court should find that the permanent taking of 70 days of expected salary constituted a substantial impairment to my employment contract.

No Legitimate Government Purpose A contractual impairment may be constitutional if it is reasonable and necessary to serve an important public purpose. (U.S. Trust Co. v. N.J. (1977) 431 U.S. 1, 25.) The
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legislature bears the burden to show that its impairment to its own obligation to pay my fixed salary of appointment served a legitimate government purpose. Complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State's self-interest is at stake. A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all. (Id. at 26.) The Supreme Court of California and the United State Supreme Court have identified factors to determine whether a states impairment to its own contracts served a legitimate government purpose. (Valdes v. Cory (1983) 139 Cal.App.3d 773, 790-791 (Valdes).) Analysis of the following factors from Valdes shows that the taking of my salary for over two years was unreasonable and not necessary in light of the on-going fiscal emergencies of the general fund: (1) the enactment serves to protect basic interests of society, (2) there is an emergency justification for the enactment, (3) the enactment is appropriate for the emergency, and (4) the enactment is designed as a temporary measure, during which time the vested contract rights are not lost but merely deferred for a brief period, interest running during the temporary deferment. No Protection of Society

The impairment did not protect the basic interests of society served by the
general fund because my salary comes exclusively from licensing fees, which cannot be diverted for general fund purposes. The salary withheld by the ABC never went to the general fund and merely added to ABCs growing surplus. As applied to the ABC, furloughs likely hurt the interests of society because employee resources, vital to the enforcement of the health and safety provisions of the ABC Act, dropped by nearly 15 percent. Further, the reduction to employee resources likely resulted in loss of revenue to the general fund. ABC generates revenue for the general fund when it accepts payments offered in compromise from licensees in lieu of suspension pursuant to Business and Professions Code section 23095; 100 percent of monies collected go straight to the general fund. Given the taking of my salary did nothing to

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alleviate the on-going fiscal crisis of the general fund and needlessly reduced enforcement and administration of the ABC Act, such impairment did not serve to protect the basic interests of society. Furloughs hurt the Peoples interest in an efficient government because staffing reductions were not done in accord with the competitive exam requirement of the merit principle enshrined within Article VII. In contrast to layoffs, furloughs cut salaries without regard to merit factors, like seniority. For example, under furloughs, the legislature paid less experienced attorneys higher salaries than attorneys with more legal experience. By ignoring the restrictions of Article VII and the competitive exam process, the legislature created inefficiency in government by paying higher salaries to attorneys employed by politicians than to others similarly classified. No Emergency Justification In Sonoma County Org. of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 313 (Sonoma), the Court left open an appealing question of whether a states voluntary conduct, like limiting its tax power, warrants an emergency to constitutionally impair its own employment contracts. However, the Ninth Circuit answered that question and held that a fiscal crisis cannot justify impairments of its own contractual obligations. (U. of Haw. Prof'l Assem. v. Cayetano, supra, 183 F.3d 1096, 1105.) While respondents may argue that a state-declared fiscal emergency justified impairment of contracts, the emergency was actually the pending, perpetual, budget impasses primarily created by the legislature. Further, deficit projections are not actual emergencies. It is not reasonable to allow a legislature to voluntarily create a fiscal emergency year-after-year, decade-after-decade, and then use its own failures as a legitimate reason to impair its own contractual obligations. Here, the Legislative Analysts Office (LAO) even put both the legislature and executive on notice in 2005 that the State faced serious general fund problems through fiscal year 2010-201119. Accordingly, even if a fiscal emergency could justify substantial impairment, a fiscal emergency, in the world of state government, is hardly some unexpected event that takes a legislature by surprise.

19

28

LAO, California's Fiscal Outlook: LAO Projections, 2005-06 Through 2010-11 (Nov 16, 2005) at < http://www.lao.ca.gov/2005/fiscal_outlook/fiscal_outlook_05.pdf> [as of July 20, 2013].

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20

The Supreme Court held that a pending, state-declared fiscal emergency, based on reports from the LAO, did not create a justification to impair the citys contractual obligation to pay its employees promised cost-of-living increases. (Sonoma, supra, 23 Cal.3d 296, 313.) Similarly, the executive orders here cannot justify furloughs on deficit projections by the LAO because unreliable projections cannot establish an actual emergency. Perhaps a tad misleading for billing of the worse fiscal crisis since the Great Depression, the $42 billion deficit cited in EO S-16-08, issued December 19, 2008, did not actually reflect a true deficit, overstated the problem, and lacked perspective to the budget as a whole. The emergency was not an existing emergency since it covered a projected deficit through June 30, 2010. According to EO S-16-08, issued December 19, 2008: . . . there is an approximately $15 billion General Fund deficit for the 2008-2009 fiscal year, which without effective action, is estimated to grow to a $42 billion General Fund budget shortfall over the next 18 months; (exhibit A.) An expectation of growth is not evidence of an actual deficit. EO S-16-08 also likely overstated the emergency as projections are fluid and subject to change. According to the executive order on December 19, 2008, if there was a projected $15 billion deficit for 2008-09 fiscal year, then the projected deficit for 2009-2010 fiscal year was $27 billion (in order to total $42 billion). In support, on November 18, 2008, just one month before the executive order, the total projected deficit for 2008-2009 and 20092010 fiscal years was $27.8 billion,20 not $42 billion as claimed on the executive order. It appears the governor added the deficit for 2008-2009 fiscal year twice to get to $42 billion. Furthermore, a deficit should be compared to the budget as a whole and include total revenues in order to extract any meaning. For example, California faced an unprecedented budgetary crisis at the beginning of fiscal year 19911992 that was more dire than any funding gap faced by Governor Schwarzenegger. (Dept. of Personnel Admin. v. Greene (1992) 5 Cal.App.4th 155, 163 (Greene).) Projected revenue for fiscal year 1991

28

LAO: California's Fiscal Outlook: LAO Projections 2008-09 Through 2013-14 (Nov 20, 2008) at <http://www.lao.ca.gov/2008/fiscal_outlook/fiscal_outlook_112008.pdf> [as of July 20, 2013].

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1992 was $46.1 billion.21 Thus, the percent of the deficit to revenues was at 30 percent. Adjusted by the CPI, $14.1 billion in 1991 equaled 22.5 billion in 2009 dollars. On November 18, 2009, the projected deficit for fiscal year 2009-2010 was $6.3 billion with general fund revenue projections of $89.5 billion.22 The projected deficit for fiscal year 2009-2010 represented 7 percent of projected revenues. The projected deficit for fiscal year 2010-2011 was $14.4 billion and revenue was $87.8 billion. (Id.) Thus, its projected deficit represented 16 percent of projected revenue. Contrasted to fiscal year 1991-1992, the fiscal crisis used to justify furloughs was clearly overstated. The same can be said when the furlough deficits get compared to the deficits of fiscal years 1991-1994 (See Wirth v. State of Cal. (2006) 142 Cal.App.4th 131, 136 [monumental budgetary crisis at $38.2 billion for fiscal year 2003-2004].) Because of piecemeal number manipulations and political self-interest, budget projections should never be used to justify impairing contracts. The Governor again used deficit projections and hyperbole to justify the perpetual reduction of my salary. Governor Schwarzenegger wrote me a letter on January 8, 2010. (exhibit D.) He announced that he closed a $60 billion dollar budget during 2009. He told me that he took my salary to give to other Californians and that he need to keeping taking it in order to close the next projected $20 billion dollar deficit of the general fund. In contrast to the budget spin of the Governor, the Wall Street Journal wrote the following: I think fears about California's fiscal stability are greatly overdone. A lot of this commentary is really political rather than economic. California's latest budget shortfall, $20 billion over the next 18 months, looks a lot less intimidating when compared to the $1.9 trillion state economy. So too does the size of the state's general obligation debts: Standard & Poor's says there are $64 billion in Californian general obligation bondsthose backed by the state's tax poweroutstanding.23
LAO: The State's Fiscal Problem (Dec 1, 1991) at <http://www.lao.ca.gov/1991/reports/1291_states_fiscal_problem.pdf> [as of July 20, 2013].
21

22

LAO: California's Fiscal Outlook: The 2010-11 Budget (Nov 18, 2009) at <http://www.lao.ca.gov/2009/bud/fiscal_outlook/fiscal_outlook_111809.pdf> [as of July 20, 2013]. 23 Arends, Brett. Wall Street Journal. On California, Dont Believe the Hype (Jan. 13, 2010) at <http://online.wsj.com/article/SB10001424052748704586504574654673186751100.html> [as of July 23, 2013].

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Clearly, my salary did not help the general fund and he never gave my salary to other Californians. Even so, the Governor used gloom and doom scary talk to take my salary for no reason. Most obvious, given the historically slow pace of government, there are rarely fiscal surprises that require immediate action. Here, the LAO put the legislature on notice back in 2005 that California faced major operating deficits in the next several years. In 2006, the LAO predicted large operating shortfalls through fiscal year 2009-2010.24 In 2007, the LAO warned: Addressing the states current budget problem is even more urgent because we forecast a continuing gap between revenues and expenditures. A plan to permanently address the states fiscal troubles must involve a substantial portion of ongoing solutions. This is not only because of the persistent operating deficits projected throughout the forecast, but also because of the downside risks inherent with the economy, General Fund revenue volatility, and a wide range of budgetary uncertainties.25 Due to the fact the legislature had years of notice to adopt permanent budget solutions, the subsequent funding deficits used to justify furloughs hardly constituted an emergency. The legislature and executive had years to cut spending, increase taxes, and/or lay off employees if those services were no longer necessary. Thus, the fiscal emergency utilized by the legislature and executive cannot justify impairing its contractual obligations given the duration of the emergency and the vast array of options available.

Furloughs were not an Appropriate Response As already argued above, furloughs to ABC employees served no legitimate government purpose since its funds cannot be used for general fund purposes and the ABC

24

LAO: California's Fiscal Outlook: LAO Projections, 2006-07 Through 2011-12: Large Operating Shortfalls Projected Through 2009-10, p. 8 (Nov 15, 2006) at <http://www.lao.ca.gov/2006/fiscal_outlook/fiscal_outlook_06.pdf> [as of July 20, 2013].
25

LAO: California's Fiscal Outlook: LAO Projections, 2007-08 Through 2012-13 (Nov. 14, 2007) at <http://www.lao.ca.gov/2007/fiscal_outlook/fiscal_outlook_07.pdf> [as of July 20, 2013].
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takes no general fund money. Furloughs were not appropriate because other alternatives existed. The Furloughs were not Temporary Assuming the state could force me to loan it money, it should have been returned when the state repaid all of its other loans. The state may argue the general fund needed my salary to reduce its temporary borrowing costs during the annual budget impasses. The more the state can borrow from the surpluses of special funds, the less interest it will need to pay when it borrow from private lenders. However, once it repaid the ABC, there remained no justification to keep my salary in the ABC fund. Since taking 70 days of my salary substantially impaired my employment contract and served no public purpose, I petition this court to order Respondents to return my salary taken in violation of both the State and Federal Constitutions. E. The ABC withheld 70 days of attorney salary from February 1, 2009 through March 31, 2011, without lawful authority. The ABC can point to no legal authority for withholding the salaries of its attorneys from February 1, 2009 through March 31, 2011. The executive cannot unilaterally reduce individual salaries via executive orders. (PECG, supra, 50 Cal.4th 989, 1041.) The ABC has a legal obligation to pay its civil-service attorneys full salary even when not required to provide services on normal work days. The legislature never reduced appropriations to the ABC in any budget act and my salary comes from a continuous appropriation independent from the budget act. Upon performance as required by my appointment, the legal obligation to pay a fixed salary encumbered the ABC fund. As a continuous appropriation, the ABC fund remains available for use regardless of fiscal year. The ABC is constitutional agency (Cal. Const., art. XX, 21) funded exclusively by license fees for the enforcement and administration of the ABC Act. Business and Professions Code section 25761, subdivision (d) establishes a continuous appropriation for such purpose: All other money collected as fees and deposited in the Alcohol Beverage Control Fund shall be allocated, upon appropriation by

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the Legislature, to the Department of Alcoholic Beverage Control for the enforcement and administration of the Alcoholic Beverage Control Act. Once appropriated by the legislature, fees deposited into the ABC fund shall remain available for encumbrance from year to year until expended pursuant to Section 16304, subdivision (f). In other words, the ABC can use appropriations from any budget act for any fiscal year as long as such funds are used for the enforcement and administration of the ABC Act. Section 16304, subdivision (f), defines a continuing appropriation as: [c]ontinuing provisions of law appropriating for specific purposes certain classes of revenue or other receipts, upon their deposit in a particular fund in the State Treasury or upon their collection by an agency of this state." Thus, a budget impasse, fiscal emergency, or cash crisis of the general fund has no effect on the ABCs ability and legal obligation to pay full and timely salary. A continuous appropriation does not mean ABCs revenue becomes available for use without an appropriation; it means once funds are appropriated for use, no other further action by the legislature is necessary to use those funds for their intended purpose, regardless of fiscal year. Moreover, the ABC fund became encumbered as soon as I performed as required in exchanged for a fixed salary. Pursuant to Section 16304: An appropriation shall be deemed to be encumbered at the time and to the extent that a valid obligation against the appropriation is created. Further, even if the ABC did not currently have an unprecedented surplus available for use, the obligation to pay salary remains and can be paid out of any fiscal year. Accordingly, Section 12440 authorizes the Controller to pay my salary from monies already appropriated to the ABC fund for the enforcement and administration of the ABC Act. From the first general fund fiscal emergency in 1969, through the many to follow, the legislature never once sought to impair its obligations to pay special-fund employees. No court upheld furloughs as applied to special funds. The legislature creates a fiscal emergency of the general fund each year it wants to spend more than its available revenue and the majority political party does not have enough votes to impose its will on the minority. One side wants to keep spending without raising taxes

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and the other side wants to raise taxes to spend more. This perennial disagreement creates a funding gap; the larger the disagreement, the larger the gap. This gridlock results in an impasse at the end of each fiscal year. The emergency worsens each day of an impasse because certain general fund obligations cannot be met without an appropriation in the annual budget act. Special fund departments operate independently from the general fund and do not rely on taxpayer monies in the general fund for primary funding. As such, special fund departments continue to run and pay their expenses regardless of general fund deficits. In fact, ever since the materialization of the fiscal emergencies to the general fund in the late 1960s, special fund departments and their employees remained unaffected. In 1966, California faced the possibility of not passing a budget by end of fiscal year on June 30, 1966, due to a legislative dispute over their pay raises and conflict of interest rules. (exhibit (ex.) E-1: Senate Must Get Budget in 2 Weeks, The Daily Review (June 16, 1966) p. 30.). (In a legislative ruling, Deputy Legislative Counsel Russell Sparling opined that if the legislature failed to do its job, there would be a complete failure of State government to function and a chaotic situation (ex. E-2: Associated Press, A Grim Picture: Fiscal Deadlock Poses Question, The Daily Review (June 14, 1966) p. 6.) As also reported from the ruling: Agencies run out of the General Fund- the states operating cashbox- would of necessity cease to function. There would be a complete failure of state government to function with respect to such items. While volunteer staffs might keep state functions in operations for a short time, it is apparent that the failure to pass a budget act would create a chaotic situation as to these general fund activities. (Ibid); The results are simple, and perhaps devastating, if a budget is not approved. There would be no money and without money most state operations would cease. (ex. E-1: Senate Must Get Budget in 2 Weeks, The Daily Review (June 16, 1966) p. 30); It would be a misdemeanor for any director or supervisor to ask his [general fund] employees to work on the basis they might be paid for it in the future. (ex. E-3: CNS, Humpty Dumpty Mess seen if state budget deadlock persists, The Mountain Democrat and Placerville Times (June 9, 1966) Section 3, p. 1); and special fund employees would be paid whereas general fund employees would have to wait for the general fund budget. (Ibid.)

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Ultimately, the legislature avoided a complete failure of state government by passing a budget on June 30, 1966. For the first time in 119 years, California was without a budget on July 1, 1969 and crisis was in the air. The failure of the legislature plung[ed] state government ever deeper into its gravest financial crisis since the depression. (ex. E-4: United Press International, Legislators Adjourn: State Financial Crisis Deepens, The Argus (July 2, 1969) p. 1.). Finance Director Casper Weinberger said the state would fall into absolute chaos if no budget were passed at all and that [e]very prison guard that worked after midnight would be working on trust and on the assumption that nobody owed him anything. That also goes for employees of mental institutions and even teachers. (ex. E-5: United Press International, Emergency State Funding: Adopted by Gov. Reagan, The Argus (July 1, 1969) p. 2.) Controller Flournoy called the situation so novel and unprecedented his office is unsure exactly what all the immediate problems are. He called it tremendous fiscal uncertainties and administrative dilemmas. (ex. E-6: Smith, Martin, State Officials Find Financial Road Getting Bumpy Without Budget, The Modesto Bee (July 2, 1969) p. B5.) During the budget impasse, Governor Ronald Reagan called California a nightmarish state government. (ex. E-7: United Press International, Chaos Apparent as Legislators Balk on Budget, The Argus (July 1, 1969) p. 1.) As reported, Reagan told a youth group that the Legislature were playing chintzy. . . It might be very interesting to close these doors, he said with a grin, and see how the people of California get along without us. (ex. E-5: United Press International, Emergency State Funding: Adopted by Gov. Reagan, The Argus (July 1, 1969) p. 2.) Nonetheless, Governor Ronald Reagan made a 2 a.m. plea (ex. E-8: Associated Press, California Without Budget As Emergency Bill Fails, The Daily Review (July 1, 1969) pp. 1-2), and asked general fund employees to come to work despite uncertainty regarding salary without a budget. Governor Regan said, Our state employees, our officers, have always given dedicated service and I am asking them to stand by the people of California by serving voluntarily until sanity returns to those irresponsible members of the Assembly who have brought us this chaos on us so unnecessarily. (ex. E-9: Smith, Martin, Ultimatum by Gov. Reagan: No Stopgap, The Modesto Bee (July 1, 1969) p. 1.)

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Despite the gravest financial crisis since the depression, the salaries of special fund employees remained unaffected. As reported, The unprecedented situation prompted Gov. Ronald Reagan to notify state officials and employees that no expenditure can be made for the payment of salaries, the purchase of supplies, or for any other purpose from the general fund [emphasis added] until further notice. (ex. E-10: Roddin, Richard, Dispute Leaves State Dangling Minus Budget, The Modesto Bee (July 1, 1969) p. 1.) Controller Flournoy ceased all warrants except those drawn on funds from prior years or continuing appropriations from special funds. (ex. E-6: Smith, Martin, State Officials Find Financial Road Getting Bumpy Without Budget, The Modesto Bee (July 2, 1969) p. B5.) A spot check in the state revealed employees showed up for work. There still remained a serious question whether they would get paid. Finance Director Weinberger said there were exceptions for special funds. (ex. E-4: United Press International, Legislators Adjourn: State Financial Crisis Deepens, The Argus (July 2, 1969) p. 1.) Governor Reagan said he averted fiscal disaster by signing the budget on July 4, 1969. (ex. E-11: United Press International, $6.24 Billion Budget Signed- Millions More Sliced, The Argus (July 4, 1969) p. 1.) While the lawmakers and governor whipped up an emergency that threatened the continuance of government, at least a few employees believed the emergency had more to do with political posturing than an actual emergency. As reported by United Press International, Volunteer Workers Man State Offices, The Argus (July 2, 1969) p. 1 (ex. E-12): Russ Adams: state carpenter of 30 years: Truthfully, I believe we have too many people that are not concerned with the working class of people. They expect dedicated employees so they should protect and take care of dedicated employees. When asked who he blamed he replied, All of them. Theyre all the same breed of cat. Andrew Lolli, former Army general and now state general services director: Weve got a job to do and were going to do it regardless of pay. Eldan Peterson, window washer: Its more of a joke than anything else among the employees. These guys (legislators) take off on Thursdays every week and then they cant even pass a budget. Well get paid. Theyre just playing around up there. Its just politics.

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Ray Hayashi, a Capitol park gardener: Theyll straighten it out by the end of the month, I guess. It doesnt seem to be bothering anybody. Jerry Harrel, Fish and Game information officer: Whats the use of staying home a couple of days while they straighten this out, then come down and just find your In basket piled higher? Theyre going to have to pay us sooner or later. Arent they? The fiscal emergency of 1969 repeated in 1970 when the legislature enacted

another late budget on July 3, 1970. Assemblyman John J. Miller said of the fiscal crisis on June 30, 1970, ". . .the crisis really is a false crisis- that state government will go on even if there were no budget." (ex. E-13: Associated Press, State Budget Reflection of Governor, Party in Power, Progress Bulletin (June 30, 1970) p. A3.) The reporter added, But the feeling of crisis is important to the lawmakers as they seek to get their views on important fiscal matters across to the taxpaying and voting public. (Ibid.) Since the emergence of the fiscal crisis in the late 1960s, these emergencies have become de rigeur political tools of the legislature and the executive during budget battles. (See Wirth, supra, 142 Cal.App.4th 131, 140 [in this era of perennial budget deficits].) However, all budget battles involve general fund revenues and expenditures, not independently run special funds. The current Director of ABC, Governor Brown, the Department of Finance, and the legislature know there was never any rational reason to arbitrarily take salary from ABC employees outside of collective bargaining. Accordingly, there is no basis, historical or otherwise, for the ABC to take employee salary for a fiscal crisis of the general fund. In addition, no court upheld furloughs to special fund departments like the ABC and I was never a party to any civil action. On April 2, 2011, the Court in PECG declined Governor Schwarzeneggers March 2, 2009 petition26 to consolidate and expedite the special fund litigation on appeal by the Governor. The Court also declined to take up the special fund suits when it reconsidered the governors earlier request. The Court in PECG did not decide the issue of contracts. (PECG, supra, 50 Cal.4th 989, 1009, fn. 11.) The Court did not decide the issues of Article VII, due process, or equal protection. Further, the primary cases relied
The Sacramento Bee at <http://www.sacbee.com/static/weblogs/capitolalertlatest/DOC001.PDF> [as of July 20, 2013.].

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upon by the Court in PECG involved the reduction to general fund appropriations for salary in the aggregate, not reductions to individual salaries or special fund appropriations. (Id. at 101617, fn. 17 [discussing Greene and Tirapelle27].) Furthermore, PECG did not decide the issue of whether the legislature can reduce employee salary outside of collective bargaining without reducing appropriations. As such, given the ABC can cite to no authority to reduce my salary from February 1, 2009 through March 30, 2011, I performed as required by my appointment, and the ABC had continuous appropriations available for encumbrance, a writ should immediately issue to the Controller for the return of my salary taken without lawful authority. CONCLUSION This Court should grant my Petition for a writ to direct Respondents to return 70 days of salary taken in bad faith and without lawful authority. The State broke its contractual promise to pay my fixed salary of appointment without any legitimate, government purpose. The taking of my salary did nothing to help the deficit of the general fund; it merely added to ABCs surplus to my detriment. As a salaried attorney in WWG-SE, my salary cannot be reduced when not required to work a normal work day. In addition, I am not even required to report hours worked for payroll purposes. My salary comes from continuous appropriations in the ABC fund and the legal obligation to pay my salary encumbers the fund upon performance. The legislature and both Governors violated the merit principle of Article VII when they paid higher salaries to similarly classified attorneys without regard to the merit principle as determined by the competitive exam process. As such, this court should issue a writ to direct Respondents to pay the 27 days of salary taken via MOU because the legislature cannot cherry-pick winners and losers without regard to merit. Article VII also mandates that I receive the same salary authorized to some of the attorneys from the special fund suits on February 1, 2012. Governor Brown settled exactly three years to the day furloughs started to
The decision in Tirapelle prompted Governor Wilson to have a change of heart. Out of fairness, he voluntarily repaid all salary legally taken from non-represented employees since he could not legally take from employees represented by the Dills Act. (Weintraub, Daniel, Los Angeles Times: 5% Salary Cut Reversed for Top State Workers (Nov. 24, 1992) at <http://articles.latimes.com/1992-11-24/news/mn-1122_1_pay-cut> [as of July 20, 2013].)
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keep individuals like me from raising the issue of special funds due to the three-year statute of limitations. However, he merely reset the clock when he created the new Article VII violation. The bottom line, if Governor Brown can authorize the use of monies already appropriated to pay salaries, then he can do the same for me. The legislature and both Governors acted in bad faith when it denied all forms of due process and imposed deep pay cuts without notice and opportunity to be heard. Furloughs violated the substantive and procedural due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the due process and equal protection clauses of California Constitution, Article I, section 7. Unilateral furloughs also impaired the states obligation of contracts in violation of Article I, section 10, of the United States Constitution and Article I, section 9, of the California Constitution. This claim should not be time-barred by law or in equity. I need the entirety of my salary in order to mitigate the damage caused by years of substantial deprivations. I accepted an appointment to attorney knowing the early years would be financially tight. This was especially true since I earned $4670 per month as a tax collector before I went to law school. While the initial appointment to attorney, at $4674 per month, increased my monthly earnings by $4, the initial repayment of law school loans consumed over 25% of my gross salary. I incurred the same law school debt, passed the same California State Bar, and provided the same legal services as other entry-level attorneys who received higher salaries without regard to merit. I am in an attorney union, I have attorney bosses, the current governor is an attorney, and the legislature is stacked full of them. I have asked them all for help, to no avail. As such, I hope this Court will rule on the merits because I have no adequate remedy at law to compel the Respondents to perform their legal obligations.

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VI.

COMPLAINT FOR DECLARATORY RELIEF (Code of Civ. Proc. 1060)

Petitioner hereby incorporates by reference all of the foregoing paragraphs as if fully set forth herein. FIRST CAUSE OF ACTION Declare that the legislature and/or executive cannot impose unpaid furloughs or otherwise unilaterally reduce the salaries of employees in WWG-SE because FLSA exempt employees must receive a fixed salary of appointment, even when not required to work a normal work day. SECOND CAUSE OF ACTION Declare that the legislature and/or executive cannot unilaterally cut the individual salaries of any attorneys in BU2 by reducing appropriations for some attorneys in the budget act without violating Article VII. THIRD CAUSE OF ACTION Declare that the legislature and/or executive cannot unilaterally reduce the individual salaries of ABC employees as long as continuous appropriations exist in the ABC fund to meet lawful salary obligations. FOURTH CAUSE OF ACTION Declare that the Controller must pay ABC employees during a budget impasse as long as continuous appropriations exist to meet lawful salary obligations. FIFTH CAUSE OF ACTION Declare that furloughs and/or pay cuts by executive order or memorandum are unconstitutional. SIXTH CAUSE OF ACTION Declare that any legislative acts to reduce individual employee salaries outside of collective bargaining are unconstitutional. SEVENTH CAUSE OF ACTION Declare that collective bargaining is unconstitutional as applied to the negotiation of salaries between the Governor and CASE pursuant to California Constitution
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article VII, section 3. When the People voted to eliminate the evils of spoils system, it amended the Constitution to restrain the legislature from setting salaries without regard to merit in article VII, section 1. The People also established a non-partisan board in article VII, section 3, to administer and enforce all civil service statutes in accord with the merit principle. Despite the fact the People voted to keep politicians out of the setting salaries business, 1970s Governor Brown injected himself into the role of negotiating salaries with his advocacy of collective bargaining. ( 3512 et. seq. (SEERA)) Although an immediate facial challenge to SEERA failed, the Court left open the possibility that it could be found unconstitutional as applied. (Pac. Legal Found, supra, 29 Cal.3d 168, 175.) As applied to the negotiation of attorney salaries, even Governor Brown recently conceded the complete utter failure of collective bargaining. (Cal. Attorneys, supra, 174 Cal.App.4th 424, 431.) Since implementation of collective bargaining in the early 1980s, attorney salary has lost an average of 1% of its value each of the last 30 years. Before collective bargaining, a politically-neutral salary commission set pay through salary surveys of private and public sector attorneys. Cost of living increases to keep pace with inflation were the rule, not the exception. There is no substantive bargaining on wages because almost all union contracts have me too clauses. In other words, if the office assistant does not get a raise, no one gets a raise. The very ratification process of employee contracts violates the merit principle because I cannot vote on my own employment contract unless I agree to give salary kickbacks to the politicians who set my salary. I should not have to pay to play. The hammer dropped on the end of the State Civil Service Act when the legislature destroyed collective bargaining by following the advice of the LAO in 2009.28 With no legal precedent, the LAO recommended that the legislature just ignore the Dills Act and bypass collective bargaining as a one-time measure in light of the inability of the legislature to match revenues with expenses. (The Courts decision in PECG mirrors the analysis of the
Legislative Analysts Office: 2009-10 Budget Analysis (Jan. 30, 2009) at <http://www.lao.ca.gov/analysis_2009/general_govt/gengov_anl09.pdf> pp. GG-8-9.
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LAO.) The legislature has not yet returned to collective bargaining. Although BU2 entered into a new MOU for July 1, 2011 through June 30, 2013, CASE members only agreed to more pay cuts under the actual threat of endless, involuntary cuts by the legislature outside of collective bargaining. The only option was to negotiate for pay cuts because Governor Brown made clear that he and the legislature would just take what we would not agree to give. On top of years of pay cuts, I had to spend thousands of dollars in union dues to CASE for collective bargaining that has not existed since February 1, 2009. Moreover, employees should not have to keep litigating every made-up law thrown at us by the executive and legislature just to keep the status quo. Employment contracts are now meaningless as employees must now bargain for pay cuts or the legislature and/or executive will just take. Governor Brown and the legislature even made employee unions renegotiate for more pay cuts to run July 1, 2012 through June 30, 2013, despite the fact employee unions had MOUs without salary cuts for that year. We entered into to salary cuts for July 1, 2011 through June 30, 2012 on the promise for no pay cuts in the final year of the employment contract and again the legislature broke its promise. Unions used to just bargain for the amount of salary. Now unions must bargain that employees actually get paid the amount of salary bargained for. For 150 years, state employees got paid no later than once a month. Now unions must bargain that employees will get paid at least once a month. Before 2010, there was no furlough law. Now the governor can drop a memo to reduce my salary without notice or opportunity to be heard. The governors expect unions to politically support their ballot measures or face pay cuts. Each governor publicly battles unions for political clout. The politically-elected bosses receive salary kickbacks; their employees were not furloughed. Governor Brown, like all others, wants to keep tying our salaries to the fiscal condition of the general fund. Given there is always a budget deficit, or the threat of one, employee wages will keep going down while the cost of living rises. Furloughs, and the resulting financial hardships, make planning for retirement difficult since they are unlimited in scope and duration. I do not want to have to extend the indenture of my servitude to the State just to benefit political careers. I will soon

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need to replace my 1995 Subaru Impreza, but I am afraid of entering into a contractual obligation because I do not know what the politicians will do next. The People established the "merit principle" as a matter of constitutional law. (Pac. Legal Found, supra, 29 Cal.3d 168, 184.) To keep the lawmakers out of pay-to-play politics, the People also established a constitutional, nonpartisan Personnel Board to administer this merit principle. (Ibid.) These constitutional provisions left the Legislature with a "free hand" to fashion "laws relating to personnel administration for the best interests of the State." (Ibid.) It is time to remove the politicians hands from my back pocket and just pay me a fair salary, set by a non-partisan board, as required by article VII, section 3. I cannot plan for my future unless I can rely on a fixed salary with reasonable cost of living adjustments every now and then. Only a politically-neutral salary commission can salvage the merit principle enshrined within Article VII. VII. VERIFICATION I, KELLY VENT, declare as follows: Petitioner hereby incorporates by reference all of the foregoing paragraphs as if fully set forth herein. I am petitioner in this action and I wrote the foregoing VERIFIED PETITION FOR WRIT OF MANDATE WITH SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES AND COMPLAINT FOR DECLARATORY RELIEF and know its contents. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, and as to those matters I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this ______ day of ________, 2013, in Sacramento, California.

_____________________ Kelly Vent

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