EDMUND G. BROWN, JR., as Governor, etc., et al., Petitioners, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; THOMAS W. MARTIN et al., Real Parties in Interest; RALPH J. GAMPELL, as Administrative Director, etc., Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; THOMAS W. MARTIN et al., Real Parties in Interest, 33 Cal. 3d 242

Opinion NEWMAN, J. The Court of Appeal system in California was expanded significantly by a statute the Legislature passed and the Governor approved during September 1981. The statute went into effect on January 1, 1982. (Stats. 1981, ch. 959.) On February 26, 1982, via permanent injunction, Judge Fogerty— sitting by assignment on the Sacramento Superior Court—held the statute unconstitutional.

He ordered that (1) the Governor refrain from appointing new judges, (2) the Controller refrain from disbursing funds for carrying out the statutory scheme, and (3) the Administrative Director of the Courts refrain from allocating appropriated moneys for that purpose. The question now is whether we should vacate that injunction. The challenged statute (ch. 959) in its six sections: 1. Adds a fifth division of three judges to the First Appellate District in San Francisco. 2. Adds sixth and seventh divisions of three judges to the Second Appellate District.

One new division is in Los Angeles; the other, in Santa Barbara. 3. Adds a third division of four judges to the Fourth Appellate District. The number of judges in the first division, at San Diego, is increased from five to six; at San Bernardino in the second division the number is decreased from five to four. The judges of the new third division are to sit in Orange County. 4. Adds two judges to the Fifth Appellate District in Fresno. 5. Creates a three-judge Sixth Appellate District in San Jose. 6.

Declares that money for the Orange County division’s judges and staff is to come from existing resources and the 1981 Budget Act, articulates a legislative intent that financing of that division’s library and equipment “be achieved by local funding or public or private donation, ” and proscribes the use of other funds for the library and equipment. The Legislature’s power to enact the first five sections has not been challenged because

article VI,

section 3 of the California Constitution provides: “The Legislature shall divide the State into districts each containing a court of appeal with one or more divisions. Each division consists of a presiding justice and 2 or more associate justices . . . .” During the proceedings below, however, Judge Fogerty concluded that

chapter 959’s

section 6 (see our fh. 1) was unconstitutional. How This Case Arose In December 1981 Thomas Martin and Thomas Tweedy, taxpayers (and real parties in interest here), sued and in an amended complaint filed on December 29 advanced arguments to support their request that implementation of

chapter 959 be enjoined. Judge Fogerty in his order of February 26, 1982, recites: “The cause was submitted upon the pleadings, upon judicial notice imparted by documents placed in the record and upon the transcribed oral arguments of counsel. The Court has concluded (1) that there is no question of fact before the Court; (2) that

Chapter 959, California Statutes of 1981, is unconstitutional and void.” In S.F. No. 24403 here the petitioners are the Governor and the Controller. In S.F. 24405 the petitioner is the Administrative Officer of the Courts. They seek mandate to compel respondent court to vacate the injunction. The Basis of the Injunction Judge Fogerty’s opinion, dated February 17, 1982, reads in part as follows: “A Court clearly cannot function without a library or equipment. Nor should the Court be in a position where it must solicit and accept donations, whether public or private.

H] The concept of a tripartite government with its doctrine of separation of powers has been violated by this legislative enactment [chapter 959]. The independence of the judiciary is sacrosanct. . . . [Citation.] [1] The legislature, through its enactment, has impinged upon the efficient operation of the court, and has thereby violated

Article 3,

Section 3 of the California Constitution. Furthermore, a statute which requires a state court to finance its necessary operations from donations threatens the integrity of the judicial process and the reputation for impartiality which is indispensible to the judicial functions. [|] Finally, this Court concludes that the unconstitutional funding provisions cannot be severed from the statute as a whole. ... It would ... be beyond the jurisdiction of this Court to attempt to rewrite the statute to determine which of the new divisions would stand or fall.

Nor can this Court merely strike the limitation thereby requiring the State to fund a program where an insufficient budget has been allocated, [f] . . . [T]his Court can review and act only on what is before it. The fact that in the future the legislature may be able to rewrite the statute to then make it constitutional is not a factor to be considered by this Court.” On June 30 this year, perhaps in response to Judge Fogerty’s concerns, the Legislature included the following provision in its 1982 Budget Act (Stats. 1982, ch. 326, item 0250-490, provision 2): “Notwithstanding

Section 6 of

Chapter 959 [see fn. 1, ante] . . . $209,480 ... is expressly allocated to fund the library and equipment for Division Three of the Fourth Appellate District (the division holding sessions in Orange County).” That is to say, no longer was there any intent that financing of that library and equipment “be achieved by local funding or public or private donation . . . .” Thus it appears that the Fogerty injunction, challenged here, reflected the judge’s concerns regarding a statutory restriction that no longer exists.

Deemed temporary when enacted (see fn. 1, ante), that restriction in toto was superseded by the 1982 Budget Act. So we need not consider whether he correctly concluded that in 1981, because of its

section 6, the Legislature passed “a statute which violated the California Constitution . . . He stressed, though, that his ruling was “dispositive without regard to other significant problems raised in this litigation. ” Therefore we proceed to examine those problems, as they have been identified and discussed in the briefs of the parties and amici and during oral argument. Other Significant Issues

Article XVI,

section 7 of our state’s Constitution prescribes: “Money may be drawn from the Treasury only through appropriation made by law . . . .” For fiscal year 1982-1983 the Legislature has appropriated $36,015,838 “[f]or support of Judiciary, Judicial Council” including specifically $20,964,632 for the Courts of Appeal. Further, the “amounts appropriated . . . are intended to fully fund all of the judgeships and places of sitting created by

Chapter 959 of the Statutes of 1981.” (Italics added.) Notwithstanding that brief but unambiguous legislative pronouncement, real parties contend that no such funds have legally been appropriated and that the superior court’s injunction accordingly should stay in effect. Why might the pertinent 1982-1983 appropriation be invalid? Because, say real parties,

chapter 959 either was void ab initio or become void on January 1, 1982, its effective date. We discuss first the latter contention. It is conceded in this case that real parties’ complaint would have been groundless if

chapter 959’s effective date had been July 1, 1982. But the Legislature’s choice of January 1 instead of July 1, it is argued, was fatal since on that day the Governor, the Controller, and the courts’ Administrative Director were endowed with powers they could not exercise because, allegedly, the Legislature had provided no money. Real parties cite no precedents. They maintain, though, that their view is supported by

article IV,

section 12 of the Constitution and, particularly, by the pronouncement in

section 12, subdivision (

d) that “[appropriations ... are void unless passed in each house by rollcall vote . . . two thirds of the membership concurring.”

Chapter 959 did not receive a two-thirds vote. Nowhere in the words of the Constitution or in California legislative annals or in juridical opinions can we discover any overriding rule that the Legislature may not, without funding the initial fiscal year, create agencies or offices, including courts and judgeships.

On the contrary, in this century the remarkable, nationwide development of budgeting-and-appropriating powers evidences a basic concern that laws which “authorize” be distinguished from those which “appropriate. ” Legislatures first decide whether a need for a new agency or office seems established; they then decide whether and how to prescribe the funding. During the first half of this year none of the

chapter 959 judgeships was filled, and no new court was inaugurated. As of July 1, though, funding that indisputably meets the constitutional tests of adequacy had been provided. Whatever might have been a problem had the Governor, the Controller, or the courts’ Administrative Director taken action during the first six months, in fact they took no action. As of now, no longer is there a problem. Pursuant to

article VI,

section 3 (quoted above), once again the Legislature (via ch. 959) has “divide[d] the State into districts each containing a court of appeal with one or more divisions . . . consisting] of a presiding justice and 2 or more associate justices.” Further, pursuant to

section 12, subdivision (

c) of

article IV the 1982 Budget Act “fully fund[s] all of the judgeships and places of sitting created by

Chapter 959” (see fn. 3, ante). Nothing else is required. The suggestion that

chapter 959 was void ab initio (i.e., from its date of enactment) is based on the clause in

article IV,

section 12, subdivision (

d) that provides: “Appropriations ... are void unless passed in each house by rollcall vote . . . two thirds of the membership concurring.” Real parties argue that

chapter 959, passed by less than a two-thirds vote, contained implied appropriations and that thus the whole

chapter is void. The only reference to money in

chapter 959, however, appears in its

section 6, the Orange County library-and-equipment clause. We concluded above that the restrictions there were superseded by the 1982 Budget Act. No words in

chapter 959 curtail a subsequently created authority to make expenditures from current appropriations.

Section 6 itself dealt only with the 1981-1982 budget; it stressed that “funding for [Orange County] support staff [should] be provided from existing resources, and funding for the four judges ... is provided in the [1981] Budget Act.” Nonetheless as to judges, it is argued, the separation of powers doctrine commands that—once appointed—judges are entitled to their salaries. (Cf. fn. 5, ante.) Again we stress that no

chapter 959 judges have been appointed. If any had been, though, it appears that a claim for salary would have involved not only

chapter 959 but also Government Code

section 68200 et seq., which fix base salaries for all Supreme Court and Court of Appeal justices and judges in trial courts of record. Those Government Code sections apparently were approved by vote of 25 Senators, 2 short of the two-thirds required for appropriation bills. (Stats. 1976, ch. 1183, §§ 1-3 (Assem. Bill No. 3844); 9 Sen. J. (1975-1976 Reg. Sess.) p. 16794.) Yet clearly those sections and like laws are valid. Thus, even were it regarded as a law that sets judges’ salaries,

chapter 959 did not need a two-thirds vote. Real parties urge that “a proposal establishing a new state agency and appropriating its initial support funds entails not only an appropriation ‘for the ensuing fiscal year’ within the meaning of Art. IV, sec. 12, subd. (a), but also for an indeterminate number of fiscal years thereafter.” Without further legislative action, though, even special appropriations for starting a new agency would not fund its operation in later years.

Moreover, no clause in the Constitution extends to laws that create new agencies or offices the two-thirds requirement the people have prescribed for appropriations (art. IV, § 12, subd. (d)), urgency statutes (art. IV, § 8, subd. (d)), and a limited listing of certain laws on taxation and other matters (e.g., art. XIII A, § 3; art. IV, § 4). Absent such a clause, the obvious implication is that agency- and office-creating statutes indeed may be passed by simple majority, separately from whatever budget or appropriation act is needed for implementation.

Real parties suggest that the initial costs of an agency are not “usual current expenses” to which budget acts assertedly are confined. (See Const., art. IV, § 8, subd. (c)(2) (appropriations for usual current expenses take immediate effect); McClure v. Nye (1913) 22 Cal.App. 248 [133 P. 1145] (appropriations to construct buildings were not for usual current expenses and did not take immediate effect).) Yet the budget bill must itemize “expenditures” (art. IV, § 12, subd. (c)), including capital outlays, whether or not they are usual and current.

And both the 1981 and the 1982 Budget Acts include urgency clauses, seemingly to assure their taking immediate effect without reliance on the “usual current expenses” reference in

article IV,

section 8, subdivision (c)(2). (See Stats. 1981, ch. 99, § 36.00; Stats. 1982, ch. 326, § 36.00.) Petitioners cite a precedent for creating appellate judgeships by a statute that specifies no appropriation for their support. Item 17 of the 1973 Budget Act (Stats. 1973, ch. 129) appropriated a lump sum for appellate courts and added a proviso “that $72,000 of the funds appropriated in this item shall not be expended unless legislation is enacted during the 1973-74 Regular Session establishing an additional judgeship for the Third Appellate District.” When that law was enacted Government Code

section 69103 declared, “The Court of Appeal for the Third Appellate District consists of one division having four judges and shall hold its regular sessions at Sacramento.” Later, on October 2, 1973,

section 69103 was amended to provide that, until January 15, 1975, the Third Appellate District should have six judges and, on and after that date, seven. (Stats. 1973, ch. 1124.)

Section 4 of the amending

chapter provided “Notwithstanding the provisions of Item 17 of the Budget Act of 1973, the seventy-two thousand dollars ($72,000) reserved by that item for an additional judgeship in the Third Appellate District of the Court of Appeal may be expended for more than one additional judgeship for that district.” Is that relaxation of the previously imposed budgetary restriction distinguishable from the legislative history here? We think not, for in 1973 the Legislature patently did not treat

chapter 1124 as an appropriation bill. In its final paragraph, the Legislative Counsel’s Digest of the last-amended version of Senate Bill No. 1149 (which became ch. 1124) reads: “Vote: majority. Appropriation: no. Fiscal committee: yes. ...” (Italics added.) Though

chapter 1124 in fact passed both houses with more than a two-thirds vote (see 5 Assem.J. (1973 Reg. Sess.) p. 8880; 4 Sen.J. (1973 Reg. Sess.) pp. 6754-6755), that digest reflects the Legislative Counsel’s opinion that the bill contained no appropriation. The Legislature’s creation—with no contemporaneous appropriation—of three new judgeships in 1973 (ch. 1124) and many new judgeships and appellate courts in 1981 (ch. 959) raises a “strong presumption” that accompanying appropriations were not constitutionally required. (See Methodist Hosp. of Sacramento v.

Saylor (1971) 5 Cal.3d 685, 692 [97 Cal.Rptr. 1, 488 P.2d 161] (referring to a “settled principle of construction, i.e., the strong presumption in favor of the Legislature’s

interpretation of a provision of the Constitution”); cf. San Jose Mercury-News v. Municipal Court (1982) 30 Cal.3d 498, 514 [179 Cal.Rptr. 772, 638 P.2d 655].) Finally, by our clerk’s letter of July 8, 1982, real parties were invited to comment on the effect of the 1982 Budget Act in this case. In response they have argued that the absence of appropriations in

chapter 959 and a claimed absence of appropriations for new judgeships and courts in the 1981 Budget Act made that

chapter void ab initio, incapable of being revived by the 1982 Budget Act. They invoke the principle that “[a]n act of the legislature which is in conflict with the constitution is no statute at all.” (Reclamation District v. Superior Court (1916) 171 Cal. 672, 676 [154 P. 845]; see Norton v.

Shelby County (1886) 118 U.S. 425, 442 [30 L.Ed. 178, 186, 6 S.Ct. 1121].) They concede exceptions to the principle, and properly they note the inapplicability here of one exception: the giving of limited effect to a void statute in order to protect rights created by innocent reliance on its validity. (See Chicot County Dist. v. Bank (1940) 308 U.S. 371, 374 [84 L.Ed. 329, 332-333, 60 S.Ct. 317].) Rights have not intervened here because the new divisions are not now established, the new judgeships not yet filled.

Real parties then identify, but puzzlingly fail to discuss, another exception: “[A] partially invalid statute may be validated by later legislation.” That exception applies here. Real parties concede, for instance, that the 1982 Budget Act validly superseded

chapter 959’s

section 6 (see above). Why then would the first five sections still be invalid? Not because of what those sections say, it is argued, but because of what they fail to say; namely, that funds are available for spending. We hold that the 1982 Budget Act cures the alleged omission and renders the

chapter fully operative. In point is County of Los Angeles v. Jones (1936) 6 Cal.2d 695 [59 P.2d 489], for example, where the Legislature enacted amendments (Stats. 1935, ch. 729, p. 1999) to sections of the Assessment Bond Refunding Act of 1933 (Stats. 1933, ch. 749, p. 1915) in response to a decision holding the act unconstitutional (County of Los Angeles v. Rockhold (1935) 3 Cal.2d 192 [44 P.2d 340, 100 A.L.R. 149]). Ruling the amendments valid, this court rejected the contention that they were void simply because the law they modified had been declared unconstitutional. (County of Los Angeles v. Jones, supra, 6 Cal.2d at p. 708.) Conclusion

Chapter 959 was a proper exercise of the Legislature’s power to establish additional courts of appeal and judgeships. We need not decide whether judgeships could have been filled or courts started up before passage of the 1982 Budget Act. That act now has become law, and implementation of

chapter 959 thus is lawful. Let a peremptory writ issue, ordering respondent to vacate its judgment against petitioners and to enter judgment against real parties in interest. Reynoso, Acting C. J., Brown (Gerald), J., and White, J.,* concurred. Unlike the other sections of

chapter 959, which are incorporated into the Government Code, the funding restriction is uncodified. It appears in

section 6, which reads: “It is the intent of the Legislature that funding for the library and equipment for the division of the Fourth Appellate District holding sessions in Orange County shall be achieved by local funding or public or private donation. Funds from other sources may not be spent for those purposes. [1] It is the further intent of the Legislature that funding for support staff be provided from existing resources, and that funding for the four judges of the third division of the Fourth Appellate District is provided in the Budget Act.” Item 0250-490 provides: “—Reappropriation, Judiciary.

Notwithstanding any other provision of law, the unencumbered balances, on the effective date of this act, of the appropriations provided in the following citations, are reappropriated for the following purposes and shall be available for expenditure until June 30, 1983. “001—General Fund “(

a) Item 025-001-001, Budget Act of 1981-for transfer to Item 0250-001-001, to be used for purchase of equipment and basic reference materials for a central law library, not to exceed $719,211. “Provisions: “1. Of the amount reappropriated in category (a), $509,731 is appropriated for equipment and shall be available for expenditure only if such expenditure is not in violation of the present injunction relating to

Chapter 959, Statutes of 1981, and if these funds are not expended during the 1981-82 fiscal year for these purposes. “2. Notwithstanding

Section 6 of

Chapter 959 of the Statutes of 1981, $209,480 of the amount reappropriated in category (

a) for the Judicial Council is expressly allocated to fund the library and equipment for Division Three of the Fourth Appellate District (the division holding sessions in Orange County). “3. The Judicial Council shall submit to the Department of Finance and the Public Works Board a revised plan to correspond with modified space needs forjudges and related staff in San Bernardino and San Diego and shall indicate any savings that may be produced from this revision.” Item 0250-001-001 of

chapter 326 of Statutes of 1982 provides: “—For support of Judiciary, Judicial Council 36,015,838 “Schedule: “(a) 10-Supreme Court................................................................... 5,143,000 “(b) 20-Courts of Appeal.................................................................. 20,964,632 “(c) 30-Judicial Council................................................................... 11,633,899 “(d) 40-Commission on Judicial Performance......................................... 276,000 “(e) 97.20—Unallocated reduction..................................................... —1,282,482 “(

f) Amount payable from Item 025-001-001, Budget Act of 1981, reappropriated by Item 0250-490........................................................... —719,211 “Provisions: “1. Notwithstanding

Section 27.00 of this act, the funds appropriated or scheduled in this item may be allocated or reallocated among categories by order of the Judicial Council subject to being reported to the Director of Finance. “2. The amounts appropriated by this item are intended to fully fund all of the judgeships and places of sitting created by

Chapter 959 of the Statutes of 1981.” In dealing with real parties’ contentions we assume, without necessarily accepting, their premise that courts may examine votes recorded in the legislative journals to ascertain whether an enrolled bill approved by the Governor and deposited with the Secretary of State is effective as a statute. In County of Yolo v. Colgan (1901) 132 Cal. 265 [64 P. 403] this court rejected a claim that a statute was invalid despite a showing that the journal of the Senate recorded less than a majority of its membership as having voted for the bill.

Since we uphold the statutes now before us, we need not decide whether Colgan should be applied. (See Linde et al., Legislative and Administrative Processes (2d ed. 1981) pp. 113-122 [“Consequences of non-compliance with legislative procedure”].) Funding of courts by legislative appropriation must not be so inadequate as materially to impair their exercise of constitutional functions. (Millholen v. Riley (1930) 211 Cal. 29, 34 [293 P. 69].) Real parties invoke the declaration in

article III,

section 4, subdivision (

a) that laws setting the salaries of elected state officers are appropriations. Summarized, the reasoning is as follows: Appellate judgeships are elective offices. Salaries are set by the Government Code. A law creating a new judgeship (such as ch. 959 here) “is the last operative event triggering the Controller’s authority to draw salary warrants” for the new judge. “As an operative appropriation, such a law is subject to the two-thirds vote requirement.” The aim of the declaration in

article III,

section 4, subdivision (a), however, was not to require a two-thirds vote but rather to ordain that even with a mere majority vote certain salaty laws are “appropriations.” The critical words were in Proposition 6 adopted by the voters at the November 1972 election.

In the voters’ pamphlet the Legislative Counsel explained that the words “would eliminate the existing requirement that there be a specific appropriation enacted in the Budget Act, or otherwise, to pay salaries.” (Italics added.) In other words, though a bill setting salaries of elected state officers is not an appropriation bill it nonetheless takes effect as an appropriation once it has been enacted.

The dissent argues that it was “improper” to appropriate funds for judgeships not yet approved (post, p. 253), that the “proper” procedure is to include special appropriations for new projects in the legislation establishing them (post, p. 254), and that “sound public policy” calls for judicial creation of a “prophylactic rule” that statutes such as

chapter 959 are absolutely void unless adopted by a two-thirds vote (post, pp. 254, 255). It is not this court’s function to adjudge the propriety of legislative processes that violate neither the California nor the federal Constitution. As a “coordinate branch of our state government” our Legislature is “entitled to function within its domain without interference by the courts," and the judicial role does not include an inquiry whether that functioning can be reconciled with “sound public policy.” (Santa Clara County v. Superior Court (1949) 33 Cal.2d 552, 556 [203 P.2d 1]; see Taylor v.

Cole (1927) 201 Cal. 327, 332-338 [257 P. 40].) Accordingly, we rule only that there is no constitutional defect in

Chapter 959 and the related provisions of the 1982 Budget Act. Assigned by the Acting Chairperson of the Judicial Council.