SHELLEY MANDEL, Plaintiff and Respondent, v. BEVERLEE MYERS, as Director, etc., et al., Defendants and Appellants, 29 Cal. 3d 531

Opinion TOBRINER, J. The present appeal—the third in this protracted proceeding—stems from plaintiff’s repeated efforts to enforce a portion of a court judgment awarding her $25,000 in attorney’s fees, entered against the various defendant state agencies and officers in April 1973, eight years ago. Shortly after the entry of the 1973 judgment, defendants filed their initial appeal, challenging, inter alia, both the propriety of any attorney fee award and the amount of the award granted in this case.

In a decision rendered in January 1976, the Court of Appeal fully considered defendants’ contentions and affirmed the attorney fee award in its entirety. (Mandel v. Hodges (1976) 54 Cal.App.3d 596 [127 Cal.Rptr. 244, 90 A.L.R.3d 728] (Mandel I).) Our court subsequently denied defendants’ petition for hearing and, as a consequence, the trial court judgment, including the attorney fee award, became final. Despite the finality of the judicial ruling, however, the state defendants have not as yet paid the amount due under the judgment.

After plaintiff’s counsel had unsuccessfully attempted to obtain voluntary compliance on a number of occasions, the trial court in January 1979 issued an order directing, inter alia, the State Controller to pay the attorney fee award out of funds appropriated in the 1978-1979 Budget Act for the operating expenses of the Department of Health Services, the principal defendant agency in the underlying case. The defendants now appeal from this order, contending that the ruling exceeds the authority of the trial court and violates the constitutional separation of powers doctrine.

We conclude that the trial court order sustains, rather than transgresses, constitutional principles and accordingly we affirm the order. As we shall explain, the court order at issue in this case does not purport to compel the Legislature either to appropriate funds or to perform any other legislative act which might violate established separation of powers principles. Instead, the order simply directs an appropriate state official, the State Controller, to pay a specified sum out of funds that the Legislature has already appropriated.

The governing precedents firmly establish that such an order violates no separation of powers principle. Although recognizing that the order does not compel a legislative act, defendants argue that the general operating expense budget item at which the order is directed was not in fact intended for the payment of the type of expenses—court-awarded attorney fees—at issue here.

The budget act, however, defines the permissible use of the funds in question in broad language which naturally and reasonably encompasses the payment of attorney fees, and, as we shall see, comparable budget appropriations have frequently been utilized in the past by a variety of agencies to pay similar attorney fee awards.

Defendants further claim that even if the agency’s operating expense budget was generally available for payment of attorney fees, the appropriation in the 1978-1979 budget must be interpreted as excluding funds for the specific attorney fee award at issue here because a legislative committee deleted a separate line-item appropriation proposed for this fee award.

As we explain, however, the Legislature has provided no formal explanation for the distinct adverse treatment accorded this particular fee award and on the record before us the legislative action is explicable only as an impermissible legislative “readjudication” of the merits of the underlying final court judgment in this case.

Because the very separation of powers doctrine upon which defendants rely precludes the Legislature from establishing itself as a “court of last resort” to review final court judgments on a case-by-case basis, the exclusion of this particular fee award from an otherwise available general appropriation on such a basis cannot stand. Accordingly, the trial court properly determined that the appropriation in question was available for payment of the attorney fee award in this case.

Finally, we shall explain that, contrary to defendants’ fears, the trial court order in this case in no way deprives the Legislature of its broad and ultimate control over state expenditures. As we shall point out, the Legislature may restrain and limit state expenditures in this area by adopting any one or more of a host of alternative, generally applicable statutory measures.

Our present decision simply recognizes that while legislative authority in fiscal matters is very broad, the separation of powers doctrine precludes the Legislature from according differential treatment in the payment of specific attorney fee awards on the basis of its own case-by-case readjudication of the very issues that the state has already litigated and lost in the underlying judicial proceeding. I.

Factual and procedural background Plaintiff, an employee in the Department of Health Services, instituted the underlying action in 1972, challenging—as an unconstitutional establishment of religion—the department’s practice of affording state employees three hours of paid time off on Good Friday. The trial court agreed with plaintiff’s constitutional challenge to the existing state practice, and entered a judgment which, inter alia, enjoined the Controller from paying state employees for time taken off from work on Good Friday.

In addition, the trial court, finding that “[t]he efforts of Petitioner’s attorneys have resulted in a substantial benefit derived by Petitioner’s class and the public at large and the saving to the State of approximately $2,000,000 in 1973 alone, and further saving which can reasonably be anticipated in years to come . . .included in the judgment an attorney fee award of $25,000. The state defendants appealed from the judgment, contesting both the trial court’s substantive establishment clause ruling and the award of attorney fees.

The Court of Appeal, in an extensive opinion, affirmed the judgment in its entirety. (Mandel I, supra, 54 Cal.App.3d 596.) With respect to the attorney fee award, the Court of Appeal specifically addressed defendants’ objections to both the validity of any award whatsoever and to the specific amount awarded by the trial court in this case, and upheld the award in all respects. (Id., at pp. 619-624.) Thereafter, our court denied the defendants’ petition for hearing.

Having obtained a final judgment against the Department of Health Services and other state defendants, plaintiff commenced efforts to obtain payment of the $25,000 attorney fee award. Upon the advice of the Attorney General, who had represented, and continues to represent, the defendants in this action, plaintiff filed a claim for the payment of the $25,000 with the State Board of Control. The Board of Control approved the claim in August 1976, and included the amount in an omnibus claim bill that was introduced in the Legislature in 1977.

The Legislative Analyst opposed the appropriation, however, and the item was deleted from the bill in legislative committee proceedings that year. Acting again upon the advice of the Attorney General, plaintiff refiled a claim for the $25,000 the following year. Once again the claim was approved by the Board of Control, and this time a specific appropriation for payment of the award was requested in the budget submitted by the Governor to the Legislature for fiscal year 1978-1979.

The Legislative Analyst, however, in his report to the joint legislative budget committee, once again recommended against the appropriation. The report indicates that the Legislative Analyst took no note of the binding effect of a final court judgment and that his recommendation rested quite unambiguously upon a reevaluation of the merits of the attorney fee award that had been fully litigated and resolved in the prior judicial proceedings. Thereafter, the specific appropriation for the attorney fee award was deleted in committee proceedings on the 1978-1979 budget bill.

Plaintiff then returned to the trial court and filed a motion seeking an order to facilitate the enforcement of the $25,000 attorney fee award. After briefing and oral argument, the trial court granted the motion and entered the order at issue in this appeal. The order, inter alia, directs the State Controller to pay $25,000 plus interest “from the funds of the Department of Health Services pursuant to Item 244(

b) of the Budget of the State of California;” item 244(

b) appropriates funds to the department for “[operating expenses and equipment.” As noted above, defendants challenge the order as a violation of the separation of powers doctrine. 2. Although the separation of powers doctrine generally bars a court from compelling the Legislature to enact an appropriation bill, once the Legislature has appropriated funds the constitutional doctrine does not preclude a court from ordering state officials to disregard invalid restrictions upon the expenditure of such funds.

In the instant appeal, the Attorney General does not attempt to explain or to justify the Legislature’s refusal to honor the final court judgment rendered in the initial appeal in this case. Instead, the Attorney General argues that regardless of the propriety or impropriety of the legislative action, the trial court exceeded its authority by entering an order which the judiciary, under the separation of powers doctrine, has no power to impose.

Relying on the venerable precept which declares that a court may not compel the Legislature to enact a legislative measure, the Attorney General maintains that the trial court order in this case is inconsistent with numerous authorities which hold that a court may neither directly compel the Legislature to appropriate funds nor order the payment of funds that have not been appropriated by the Legislature. (See, e.g., Myers v. English (1858) 9 Cal. 341, 349; Westinghouse Electric Co. v. Chambers (1915) 169 Cal. 131, 135 [145 P. 1025]; California State Employees' Assn. v.

State of California (1973) 32 Cal.App.3d 103, 108-109 [108 Cal.Rptr. 251]; Veterans of Foreign Wars v.

State of California (1974) 36 Cal.App.3d 688, 697 [111 Cal.Rptr. 750].) Although, as the cases relied on by the Attorney General indicate, the separation of powers doctrine has generally been viewed as prohibiting a court from directly ordering the Legislature to enact a specific appropriation, it is equally well established that once funds have already been appropriated by legislative action, a court transgresses no constitutional principle when it orders the State Controller or other similar official to make appropriate expenditures from such funds. (See, e.g., Fowler v.

Peirce (1852) 2 Cal. 165, 167; McCauley v. Brooks (1860) 16 Cal. 11, 33-35, 39-47; Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199, 204-207 [37 Cal.Rptr. 425, 390 P.2d 193], See generally 5 Witkin, Cal.

Procedure (2d ed. 1971) Extraordinary Writs, § 74, pp. 3850-3851.) Although such an order will normally issue only when the Legislature has authorized the use of the appropriated funds for the purpose for which an expenditure is sought, a variety of cases demonstrate that under some circumstances a court decision implementing constitutional rights may result in the expenditure of funds in a manner that the Legislature has not contemplated and yet pose no separation of powers problems whatsoever. The case of Shapiro v. Thompson (1969) 394 U.S. 618 [22 L.Ed.2d 600, 89 S.Ct. 1322] provides an instructive example.

In Shapiro the State of Connecticut enacted a welfare program which provided benefits to needy persons in the state but which excluded otherwise eligible recipients who had lived in the state for less than one year. The state Legislature appropriated funds to pay for the program with the obvious intent that the appropriated funds not be spent on the excluded class. In Shapiro, however, the United States Supreme Court struck down the intended exclusion as unconstitutional and as a result the appropriated funds were made available to persons whom the Legislature had not intended to benefit.

Nothing in Shapiro, or indeed, in any of the other numerous recent decisions invalidating comparable unconstitutional restrictions in public benefit programs, suggests that a judicial decision which extends appropriated funds to an improperly excluded class violates the separation of powers doctrine. (See, e.g., Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194]; Memorial Hospital v. Maricopa County (1974) 415 U.S. 250 [39 L.Ed.2d 306, 94 S.Ct. 1076]; Califano v.

Goldfarb (1977) 430 U.S. 199 [51 L.Ed.2d 270, 97 S.Ct. 1021].) In Shapiro and the other similar cases cited above, an unconstitutional restriction was appended to the statutory provisions governing a general benefit program rather than to a specific appropriation bill. In other instances, however, a legislative body has imposed improper restrictions or exclusions directly in an appropriation bill itself.

As in the Shapiro line of cases, the judicial authorities establish that when such a restriction in an appropriation measure is found invalid, a judicial decision requiring the payment of funds without regard to the improper restriction does not violate the separation of powers doctrine. This court’s decision in State Board of Education v. Levit (1959) 52 Cal.2d 441 [343 P.2d 8] illustrates the point.

In Levit, the Legislature in an annual budget bill appropriated a designated fund for public school textbooks, but appended to the appropriation a proviso which read: “None of the moneys appropriated by this item shall be expended for publishing, purchasing, shipping or paying royalties for the books known as ‘Science for Work and Play’ and ‘Science for Here and Now.’” (Stats. 1959, 2d Ex.

Sess. 1958, ch. 1, item 435, p. 558.) In Levit, our court concluded that while the Legislature possessed the power to decline to appropriate funds for any science textbooks at all, it had no authority to enact the specific proviso at issue because the California Constitution specifically delegates the power of textbook selection to the State Board of Education, not the Legislature. (See Cal.

Const., art IX, § 7.5.) Having concluded that the particular restriction on appropriated funds was invalid as an improper legislative usurpation of the Board of Education’s authority, we went on to hold in Levit that “[t]he declaration that the restrictive provision in item 435 is invalid does not affect the validity of the appropriation itself.” (52 Cal.2d at p. 466.) In line with this conclusion, we issued a peremptory writ, directing the Controller “to consider the printing orders involved without regard to the ineffective restriction contained in [the budget act].” (Ibid.) The United States Supreme Court applied a similar analysis in its decision in United States v.

Lovett (1946) 328 U.S. 303 [90 L.Ed. 1252, 66 S.Ct. 1073]. In Lovett, the United States Congress, after conducting a

summary investigation of a number of federal employees and concluding that several were guilty of “subversive activity,” adopted as part of a pending appropriation bill a provision which stated that “[n]o part of any appropriation ... which is made available under . . . this Act . . ., shall be used ... to pay any part of the salary, or other compensation of the personal services, of Goodwin B. Watson, William E.

Dodd, Junior, and Robert Morss Lovett .. .. ” Although Congress argued in Lovett that the provision in question “involved simply an exercise of congressional powers over appropriations which ... are plenary and not subject to judicial review” (328 U.S. at pp. 306-307 [90 L.Ed. at p. 1255]), the Supreme Court emphatically rejected the argument and concluded that the restriction in question amounted to a punitive bill of attainder which the Legislature was not authorized to enact. (U.S. Const., art.

I, § 9, cl. 3.) Having determined that the attempted limitation on the use of appropriated funds rested upon the improper exercise of legislative authority, the Lovett court struck down the restriction and held that the challenged provision “does not stand as an obstacle to payment of compensation to Lovett, Watson and Dodd.” (328 U.S. at p. 318 [90 L.Ed. at p. 1261].) Thus the Levit and Lovett decisions clearly demonstrate that f while the separation of powers doctrine may restrict a court from directly ordering the Legislature to enact an appropriation law, the doctrine does not preclude the judiciary from decreeing that funds that have been appropriated by the Legislature should be paid without regard to an improper or invalid legislative restriction.

If, in the absence of such invalid restriction, appropriated funds are reasonably available for the expenditures in question, the separation of powers doctrine poses no barrier to a judicial order directing the payment of such funds. The teaching of Levit and Lovett is directly relevant in the present case because the trial court order at issue here does not compel the Legislature to appropriate funds. Instead, the order simply directs the State Controller to pay the sum in question out of funds that have already been appropriated.

Accordingly, in determining the propriety of this order, we turn to the question of whether the trial court could properly conclude that the appropriated funds at which the order is directed were reasonably available for payment of the attorney fees in question. 3. The trial court properly concluded that the general "operating expense” appropriation to the Department of Health Services was available for the payment of court-awarded attorney fees against the department.

As noted above, the trial court order in question directs the Controller to pay $25,000 plus interest “from the funds of the Department of Health Services pursuant to Item 244(

b) of the 1978-79 Budget of the State of California.” Item 244(

b) of the 1978-1979 Budget Act appropriated more than $37 million for “[operating expenses and equipment” of the Department of Health Services (Stats. 1978, ch. 359, § 2, item 244(b), p. 817) and the Attorney General concedes that at the time the trial court entered its order more than sufficient funds remained in this budget item to cover the expenditure in question. (See Gov. Code, § 12440: cf. Baggett v. Dunn (1886) 69 Cal. 75 [10 P. 125]; Marshall v.

Dunn (1886) 69 Cal. 223 [10 P. 399].) The Attorney General maintains, however, that the trial court erred in concluding that the funds in question could properly be used for payment of court-awarded attorney fees. We cannot agree. The 1978-1979 Budget Act itself defines the “operating expenses and equipment” category of departmental budgets in terms that are clearly broad enough to encompass court-awarded attorney fees.

Section 26, subdivision (

b) of the budget act provides that the term “operating expenses and equipment” as used in the act “shall include all expenditures for purchase of materials, supplies, equipment, services (other than services of state officers and employees), and all other proper expenses.” (Italics added.) (Stats. 1978, ch. 359, § 26, subd. (b), p. 1013.) On its face, the payment of a court-awarded attorney fee would appear clearly to constitute “[an] expenditure[] for ... services (other than services for state officers and employees).” Moreover, the State Administrative Manual explicitly confirms that “consultant and professional services” are among the categories included within the “operating expenses and equipment” budget item. (Cal.

Dept. of Gen. Services, State Admin. Manual, § 6120.) Although the Attorney General contends that the term “services” ought to be limited to services for which the department has specifically contracted, nothing in the statutory language reflects any such contractual limitation. Indeed, inasmuch as the attorney fee award in this case rested in large part upon the fact that plaintiffs attorneys had provided a substantial economic benefit to the department (as well as to other state agencies), we believe that such fees naturally and reasonably fall within the “services” category.

Moreover, even if some question remained as to whether court-awarded fees could properly be considered expenditures for “services,” in our view the concluding clause of the statutory definition, which expressly provides that funds in this budgetary category are available for “all other proper expenses,” removes any doubt as to the general availability of such funds for the payment of court-awarded attorney fees.

Since the Attorney General concedes that an appropriation need not specifically refer to the particular expenditure in question to be available for its payment, the fact that the budget act recognizes the operating expense appropriation as a general “catchall” appropriation for “all other proper expenses” of the department directly supports the trial court’s conclusion that such funds could properly be utilized for this purpose. (See, e.g., Heron v. Riley (1930) 209 Cal. 507, 515-516 [289 P. 160]; Vandergrift v.

Riley (1934) 220 Cal. 340, 350-355 [30 P.2d 516].) Our conclusion that the department’s 1978 operating expense budget was generally available for payment of court-awarded attorney fees is confirmed by past administrative practice.

Amici curiae, in both the Court of Appeal and this court, have presented documentary evidence, of which we take judicial notice, which indicates that on numerous occasions in past years various administrative agencies in California have routinely authorized the payment of court-awarded attorney fees out of their agency’s current operating expense and equipment budget or similar general budgetary appropriations.

Although the Attorney General attempts to minimize the significance of this past administrative practice by arguing that the numerous expenditures in question may themselves have been improper, the Attorney General has provided nothing to demonstrate that prior to the institution of the present litigation, state officials had ever taken the position that attorney fee awards could not appropriately be charged against an agency’s general operating expense appropriation.

Accordingly, we conclude that the operating expense appropriation at which the trial court’s order in this case was directed was generally available for the payment of court-awarded attorney fees. 4. Having appropriated funds which are generally available for payment of court-awarded attorney fees, the Legislature could not validly exclude the particular attorney fee award in this case on the basis of its readjudication of the merits of the final court judgment.

The Attorney General argues, however, that even if, as we have concluded, the agency’s 1978-1979 operating expense appropriation was generally available for payment of court-awarded attorney fees, that appropriation was nonetheless unavailable for payment of the specific attorney fee at issue in this case. The Attorney General points out that

section 15 of the 1978-1979 Budget Act provides that “[n]o appropriation made by this act ... may be ... used in any manner ... to achieve any purpose which has been denied by any formal action of the Legislature.” (Stats. 1978, ch. 359, § 15, p. 1006.) Because a legislative committee deleted an express line-item appropriation that had been proposed to pay the fee in question here, the Attorney General argues that under

section 15 such legislative action must be interpreted as imposing a narrow limitation or restriction on the general availability of the agency’s operating expense budget which precludes the use of such funds for the payment of this particular fee. Although the Attorney General’s argument may accurately portray the Legislature’s intent to deny payment of this particular attorney fee award, the question remains whether such an exclusion of a particular award from the general appropriation provided in the agency’s operating expense budget is valid.

As we have already discussed, the Levit and Lovett decisions demonstrate that if the Legislature appends an invalid restriction to an appropriation measure, the restriction may properly be struck down and payment may be compelled without regard to the unlawful restriction. In the present appeal, the Attorney General has not proffered any rationale to explain or justify the legislative exclusion of the particular attorney fee award at issue in this case.

In a brief filed in this proceeding, the Attorney General candidly states that “[t]he state defendants do not presume to know or to understand why the Legislature on two occasions declined to appropriate money to pay the $25,000 award.” If the Legislature had no legitimate reason for singling out this attorney fee award for disparate treatment, and arbitrarily withheld the benefits which the budget act affords to other similarly situated individuals, the appropriation restriction would, of course, violate elementary equal protection principles and for that reason alone would be invalid. (See, e.g., Newland v.

Board of Governors (1-977) 19 Cal.3d 705, 711-713 [139 Cal.Rptr. 620, 566 P.2d 254].) Although the Attorney General offers no explanation and the Legislature itself has provided no formal rationale for its action, the discussion in the Legislative Analyst’s report recommending the deletion of the proposed appropriation strongly suggests that the action of the legislative committee in question may well have been based simply upon the committee’s own reassessment of the validity of plaintiff’s underlying attorney fee claim.

As we have seen (see fn. 1, ante), the Legislative Analyst’s comments and recommendation on this measure took no note of the binding nature of the final court judgment but instead explicitly resurrected the very arguments concerning the validity of the attorney fee claim that had been raised and fully litigated by the state defendants in the judicial proceedings. Those arguments, of course, had been ultimately rejected by the final court judgment in Mandel I.

In light of this legislative history, we must determine whether the Legislature may properly disregard the finality of a court judgment and take it upon itself to readjudicate on a case-by-case basis the merits of such a judgment. We think that it is clear that the fundamental separation of powers doctrine embodied in

article III,

section 3 of the California Constitution (see fn. 4, ante) forbids any such legislative usurpation of traditional judicial authority. Our Constitution assigns the resolution of such specific controversies to the judicial branch of government (Cal. Const., art. VI, § 1) and provides the Legislature with no authority to set itself above the judiciary by discarding the outcome or readjudicating the merits of particular judicial proceedings. As this court emphasized more than a century ago in the case of Pryor v.

Downey (1875) 50 Cal. 388, 405: “[H]ad the Legislature gone one step further and, by special enactment .. . commanded the courts which had rendered a judgment in favor of a plaintiff ... to set it aside and to enter a judgment for the defendant, such arbitrary attempt would, at once, have been recognized as an abuse not to be tolerated under our free constitution of government.” In this regard, Chief Justice Burger’s comments in United States v.

Nixon (1974) 418 U.S. 683, 704 [41 L.Ed.2d 1039, 1061-1062, 94 S.Ct. 3090], though voiced in response to a claim by the chief executive of an asserted right to exercise a central judicial function, are equally applicable in this case. Writing for a unanimous court, Chief Justice Burger stated: “Notwithstanding the deference each branch must accord the others, the ‘judicial Power of the United States’ vested in the federal courts by Art.

III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.” Just as the courts may not reevaluate the wisdom or merits of statutes which have secured final passage by the Legislature, the Legislature enjoys no constitutional prerogative to disregard the authority of final court judgments resolving specific controversies within the judiciary’s domain.

Two decisions from other jurisdictions—one rendered long ago and one decided within just the past few months—eloquently demonstrate that the Legislature lacks constitutional authority to readjudicate or set aside final court judgments on a case-by-case basis. In Denny v.

Mattoon (1861) 84 Mass. (2 Allen) 361 [79 Am.Dec. 784], the Supreme Judicial Court of Massachusetts explained over 100 years ago that “[i]t is the exclusive province of courts of justice to apply established principles to cases within their jurisdiction, and to enforce their decisions by rendering judgments and executing them by suitable process.... [A]n act of the legislature cannot set aside or annul final judgments or decrees. This is the highest exercise of judicial authority. ...

To vest in the legislature the power to take them away, or to impair their effect on the rights of parties, would be to deprive the judiciary of its most essential prerogative.... It is obvious that such an exercise of [legislative] authority would lead to the entire destruction of the order and harmony of our system of government, and to a manifest infraction of one of its fundamental principles.

Indeed, it is difficult to see how the legislature could more palpably invade the judicial department and effectively usurp its functions, than to pass statutes which should operate to set aside or annul judgments of courts in their nature final, and which would otherwise be conclusive on the rights of parties.” (Id., at pp. 378-379.) More recently, in Chadha v.

Immigration and Naturalization Service (9th Cir. 1980) 634 F.2d 408, the Ninth Circuit similarly explicated the separation of powers flaw inherent in any procedure which authorizes legislative readjudication of final judicial actions on a case-by-case basis. In Chadha, the court addressed the constitutionality of

section 244(c)(2) of the federal Immigration and Naturalization Act, which authorized court review of an administrative decision to suspend deportation proceedings but then provided that a final judicial decision in a particular case could be nullified by congressional action. The Chadha court concluded that this statutory scheme violated the separation of powers doctrine, explaining: “The duty of the Judiciary under this and numerous other statutory schemes is to determine ... whether the [administrative agency] has correctly applied the statute that establishes its authority.... By reason of the congressional disapproval device, nearly all judicial

interpretations of the criteria in

section 244 are rendered, in effect, impermissible advisory opinions. .. . We think this is an interference with a central function of the Judiciary ... .” (Id., at p. 430.) The Chadha court noted that under the statute in question "... [a]liens are no longer guaranteed the constraints of articulated reasons and stare decisis in the

interpretation of the Immigration and Nationality Act. Adjudications they have obtained in the Judicial branch may be set aside for any reason, or no reason at all, so that judicial decisions may be for naught.... [11] [As a consequence] [t]he Judiciary’s duty to decide cases ... becomes subject to review by the Legislature, thus undermining the integrity of the third branch....

The Legislature thus disrupts the judicial system by retaining a selective power to override individual adjudications, in lieu of changing standards prospectively by the usual, corrective device of a statutory amendment.” (Id., at p. 431.) As the foregoing cases demonstrate, while the Legislature enjoys very broad governmental power under our constitutional framework, it does not possess the authority to review or to readjudicate final court judgments on a case-by-case basis.

The recognition of such legislative authority would completely deprive court judgments of the respect and deference which the Constitution contemplates each branch of government will accord to final actions within the jurisdiction of a coequal branch, and would repose in the Legislature a combination of powers that the constitutional draftsmen specifically intended to forestall.

Indeed, this fundamental separation of powers principle has particular force in instances, such as the present case, in which the Legislature attempts to void the effect of a court judgment which determines that the government itself is obligated to pay a sum of money to an individual. If the Legislature in such a case were empowered to reexamine the merits of litigation and to ignore a particular judgment whenever it so chose, the myriad safeguards of the judicial process would come to naught and one party to a lawsuit would in effect become both litigant and judge.

In our view it is difficult to imagine a clearer example of legislative usurpation of judicial authority. In fact, the United States Supreme Court recognized over a century ago that the separation of powers doctrine precludes the legislative branch from preempting the judicial role in just such a situation. In United States v. Klein (1872) 80 U.S. (13 Wall.) 128 [20 L.Ed. 519], the Supreme Court considered the validity of a proviso which Congress had appended to a clause in a general appropriations bill appropriating money for the payment of judgments of the court of claims against the United States.

The proviso purported to require the Supreme Court to disallow some claims against the government that had already been approved by judicial decisions of the court of claims.

Emphasizing that “[i]t is as much the duty of the government as of individuals to fulfill its obligations” and noting that the legislative measure before it would effectively “allow[] one party to the controversy to decide it in its own favor,” the court concluded that in enacting the measure “Congress has inadvertently passed the limit which separates the legislative from the judicial power.” (80 U.S. at pp. 144, 146, 147 [20 L.Ed. at p. 525].) Accordingly, the court invalidated the challenged proviso and affirmed the previously adjudicated money judgments against the United States.

The Attorney General in the present case has cited no authority which casts doubt on the continued validity of the Klein decision (see generally Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic (1953) 66 Harv.L.Rev. 1362, 1373 & fn. 39) or which suggests that the Legislature is constitutionally empowered to readjudicate on a case-by-case basis judgments rendered against the state. As we have explained, the recognition of any such legislative authority is, in our view, wholly foreign to the fundamental theory of the separation of powers doctrine.

Accordingly, insofar as the Legislature’s exclusion of the attorney fee award in this case rested upon a legislative rejection of the merits of the final court judgment, we conclude that such exclusion is invalid. As we have already explained, the fact that the legislative action took the form of a restriction in an appropriations bill cannot save its validity.

In Levit, the Legislature attempted, by means of a purported limitation on the use of appropriated funds, to exercise a power of textbook selection that the Constitution had delegated to another entity, and we struck down the restriction and ordered the Controller to pay moneys from the appropriated funds without regard to the invalid limitation.

In Lovett, Congress attempted, again by a restriction appended to an appropriations bill, to exercise a power of inflicting individual punishment which it did not constitutionally possess, and the court invalidated the restriction and authorized the excluded individuals to obtain payment from the appropriated funds. Similarly, because the Legislature has no authority to readjudicate the merits of a final court judgment, we conclude that any restriction on the use of appropriated funds for payment of the particular fees in question here is invalid and thus does not bar the use of those funds for such payment.

We emphasize that our decision in this case in no way deprives the Legislature of its broad authority to control the state’s fiscal affairs or to adopt appropriate measures to limit governmental expenditures. With respect to the matter of attorney fees, for example, the Legislature has at its disposal a wide variety of legitimate means by which to restrict potential costs. Among other alternatives, the Legislature may if it chooses (1) establish a fixed or maximum hourly rate of recovery for attorney services (cf. Gov.

Code, § 68093 (witness fees)), (2) prescribe a maximum “per-case” limit on attorney fee awards (cf. Bus. & Prof. Code, § 10474, subds. (a), (b), (c) (dollar limitations on recovery from Real Estate Fund)), (3) limit the kinds of cases in which attorney fees may properly be awarded (cf. Code Civ.

Proc., § 1021.5 (delineating criteria for recovery of attorney fees on private attorney general theory)) or (4) appropriate a designated sum of money to an “attornéy fee payment fund” and provide a reasonable basis for allocating such funds among eligible claimants should the designated sum prove insufficient to meet all fee awards. (Cf. Lab.

Code, § 3716 (Uninsured Employers Fund).) Through such generally applicable statutory measures, the Legislature can fully protect the state’s fiscal interest without either exceeding its constitutionally prescribed legislative function or drawing arbitrary, capricious and potentially invidious distinctions between similarly situated claimants. As we have seen, however, in the instant case the Legislature did not adopt any such generally applicable mechanism for limiting state expenditures.

Instead, it undertook to reject a particular attorney fee award apparently because of a legislative committee’s disagreement with the merits of the final court judgment rendered in the case. As we have explained, because the Legislature had no authority to exercise such a classical judicial function, the resulting restriction on the use of funds for payment of this particular fee award is invalid. 5. Conclusion.

As discussed above, the trial court in this case did not order the Legislature to pass an appropriations bill or to undertake any other legislative act, but simply directed an appropriate state official to pay a sum of money out of funds that the Legislature had already appropriated. As we have seen, both the terms of the budget act and past administrative practice demonstrate that the funds in question were generally available for the payment of court-awarded attorney fees.

Although the Legislature’s deletion of a proposed appropriation for this particular award of attorney fees indicates that it did not intend the payment of this fee, and although the Legislature has broad authority to adopt general rules that apply without arbitrary discrimination to the recovery of attorney fees, the Legislature cannot pay some awards and not others solely because it readjudicates and redecides the merits of a case in which the court has reached a final judgment.

In sum, individual citizens who litigate claims against the government in our state courts are constitutionally entitled to expect that when the government loses, the Legislature will respect the final outcome of such litigation. The Legislature is not a supercourt that can pick and choose on a case-by-case basis which final judgments it will pay and which it will reject.

If that kind of arbitrary conduct by the Legislature were to be the law, our system of justice would be subordinated to the popular vote of legislators, and our constitutional bedrock principle of separation of powers would become a shattered mass of scattered fragments. The judgment is affirmed. Mosk, J., Newman, J., Reynoso, J., and Grodin, J.,* concurred. In explaining his recommendation against payment of the claim, the Legislative Analyst stated: “In our analysis of the claims bill dated February 18, 1977, we recommended against payment and noted the following: “(

I) In the absence of a controlling statute or an agreement between the parties, attorney fees are generally not awarded to successful litigants in American courts. (There was no express or implied agreement relative to attorney fees in this ease.) “

(2) This was the first case in which attorney fees would be awarded against the state without specific statutory authority. “

(3) The fee awarded by the court represented an attorney charge of $83 an hour compared to the 1977 charges by the Ollice of the Attorney General of $33.10. “

(4) There was reason to question the number of attorney hours that were awarded for payment by the court. (The court did not review the total number of hours spent preparing and trying the ease, the manner in which the time was spent or the attorneys’ normal billing rates.) [II] This case did not involve a formal trial. Court time consisted solely of arguing a brief during one afternoon. The Ollice of the Attorney General indicated that a reasonable amount of lime spent by the claimants on this case would be about one week, or 80 hours for both attorneys." (Rep. of Legis.

Analyst, Analysis of the Budget Bill for the Fiscal Year July 1, 1978 to June 30, 1979, p. 1042.) At the lime of the legislative action, the state's second appeal in this proceeding, concerning an attorney fee award for services rendered in the Mandel I appeal, was pending before the Court of Appeal. The Court of Appeal subsequently reversed the appellate attorney fee award and remanded the matter for reconsideration and recomputation. (Mandel v. Lackner (1979) 92 Cal.App.3d 747 [155 Cal.Rptr. 269] (Mandel II).) No issue concerning the appellate attorney fee award is presented in the instant proceeding.

The dispositive text of the order reads in pertinent part: “IT IS ORDERED, ADJUDGED AND DECREED as follows: “1. That the award of attorneys’ fees to [respondent’s attorneys] of $25,000.00 in the judgment of April 6, 1973, in this cause, shall be, and it hereby is, deemed to be costs within the meaning of Code of Civil Procedure

Section 1028; and, “2. Defendants BEVERLEE MYERS, Director of the Department of Health Services, and DEPARTMENT OF HEALTH SERVICES OF THE STATE OF CALIFORNIA, and KENNETH J. CORY, State Controller, and STATE OF CALIFORNIA, are ordered to pay to [the attorneys] the said sum of $25,000.00, plus interest from April 6, 1973, from the funds of the Department of Health Services pursuant to Item 244(

b) of the 1978-79 Budget of the State of California....” In California, the separation of powers doctrine is embodied in

article III,

section 3 of the California Constitution which provides: “The powers of state government are legislative, executive and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” The materials submitted by amici indicate the following:

(1) In 1976 and 1977, the Department of Benefit Payments paid fee awards in the cases of Smock v. Carleson (1975) 47 Cal.App.3d 960 [121 Cal.Rptr. 432] and McClean v. Obledo (Sac. Super. Ct. 1977), in the amounts of $1,000 and $19,000 respectively, out of the agency’s operating expenses and equipment appropriation.

(2) In 1978, the Department of Health paid out $3,854.78 from its operating expense and equipment budget for attorney fees in the case of Steilberg v. Lackner (Alameda Super. Ct. No. 463759-8).

(3) In 1979, the Employment Development Department paid more than $39,000 from its “contingent fund” appropriation for attorney fees awarded in the case of American Federation of Labor v. Employment Dev. Dept. (1979) 88 Cal.App.3d 811 [152 Cal.Rptr. 193],

(4) In 1979, the Department of Justice paid $6,295 in attorney fees in the case of American Civil Liberties Union v. Younger. (Sac. Super. Ct. No. 262181.) The documents do not reveal which account the fee was charged to, but the department’s budget contains no special line-item appropriation for court-ordered attorney fees.

(5) In 1978, the Department of Health paid $12,800 out of the general appropriation for the support of state hospitals for attorney fees awarded in Fortney v. Simmons (N.D.Cal.) No. C-75-2407 WHD. Indeed, there is strong indication to the contrary. For example, Welfare and Institutions Code

section 10962 has provided since 1965 that welfare recipients who prevail in a judicial action arising from an administrative fair housing procedure are entitled to an award of attorney fees (Stats. 1965, ch. 1784, § 5, p. 3993), and over the years numerous cases have upheld attorney fee awards under this section. (See, e.g., Trout v. Carleson (1974) 37 Cal.App.3d 337 [112 Cal.Rptr. 282]; Horn v.

Swoap (1974) 41 Cal.App.3d 375 [116 Cal.Rptr. 113].) Such fees were apparently routinely paid out of the Department of Social Services general budget despite the fact that the annual budget bills contained no special line-item appropriation for such attorney fees.

This practice is evident from the report of the Legislative Analyst on the proposed 1979-1980 budget, which states that in the first six months of fiscal year 1978-1979, $7,000 in attorney fees were paid out by the department and notes that in the 1979-1980 budget a separate appropriation for such fees is “identified separately for the first time.” (Rep. of Legis.

Analyst, Analysis of the 1979-1980 Budget Bill, pp. 772-773.) Nothing in the report suggests that the department’s past practice of paying such awards from a general appropriation category was in any way improper. ln view of this conclusion, we have no occasion in the present case to determine whether court-awarded attorney fees should properly be considered an element of “costs” within the meaning of Code of Civil Procedure

section 1028. James Madison, in writing of the separation of powers doctrine in The Federalist Papers, quoted Montesquieu’s warnings of the dangers posed by legislative exercise of judicial power: ‘“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator ....’” (Madison, The Federalist No. 47 (G.P. Putnam's Sons ed. 1908) at p. 302.) We note that our conclusion in this regard is not inconsistent with the holdings of such cases as Myers v. English, supra, 9 Cal. 341, and Westinghouse Electric Co. v.

Chambers, supra, 169 Cal. 131, which declare that the courts may not compel the Legislature to enact an appropriation measure and may not compel payment in the absence of any available appropriated funds. Properly interpreted, such decisions hold simply that by virtue of the separation of powers doctrine courts lack the power to order the Legislature to pass a prescribed legislative act.

As Levit and Lovett demonstrate, however, those cases do not stand for the proposition that the Legislature may arrogate to' itself functions which it may not constitutionally exercise simply by adopting restrictions in an appropriations bill. To the extent that language in Myers and Westinghouse can be read to suggest that the Legislature is not constrained by the separation of powers doctrine in exercising its appropriations power, such language conflicts with Levit and Lovett and must be disapproved.

Thus, as the dissent itself is compelled to acknowledge, the order in this case does not threaten a direct confrontation with the Legislature and does not pose any possibility that members of the Legislature will be held in contempt for failing to perform a legislative act. The Controller, of course, is the state official to whom judicial orders directing the payment of public funds are traditionally addressed (see, e.g., Jarvis v. Cory (1980) 28 Cal.3d 562 [170 Cal.Rptr. 11, 620 P.2d 598]; Olson v.

Cory (1980) 27 Cal.3d 532 [164 Cal.Rptr. 217, 609 P.2d 991]), and the past cases discussed above (e.g., Levit; Lovett) provide no basis for doubting that the Controller will comply with a final court order directing him to disregard an unconstitutional restriction in an appropriation bill. Assigned by the Chairperson of the Judicial Council.