Stanford Law School - Robert Crown Law Library

Filed 10/4/10 (this opn. follows companion case, S183411, also filed 10/4/10)

IN THE SUPREME COURT OF CALIFORNIA

ST. JOHN‟S WELL CHILD AND FAMILY )
CENTER et al.,
Petitioners,
v.
S181760
ARNOLD SCHWARZENEGGER
as Governor, etc., et al.,
Ct. App. 1/2 No. A125750
Respondents;
DARRELL STEINBERG, Individually and as )
President pro Tempore, etc., et al.,
Interveners.
We granted review in this original writ proceeding to address the propriety of the
Governor‟s use of the so-called “line-item veto” under the asserted authority of article IV,
section 10, subdivision (e) of the California Constitution, to further reduce funding that
already had been reduced by the Legislature in its midyear adjustments to the Budget Act
of 2009. The Court of Appeal, First Appellate District, Division Two, denied the
requested writ of mandate and upheld the Governor‟s action. Upon review, we agree
with that court‟s disposition of the matter. Because the Court of Appeal‟s decision (by
Kline, P.J., with Lambden & Richman, JJ., concurring) persuasively sets forth and
analyzes the issues presented by this case, we adopt substantial parts of it as our own, as
1

modified below to fully reflect our views and to address the arguments that differ from
those advanced in the appellate court.1
I.
Although the current economic downturn affects all Californians, many persons
are particularly vulnerable because they receive essential health and welfare assistance
from agencies dependent upon state tax revenues. In this setting, government must
choose between and among equally needy groups, knowing that many of those groups not
fully funded may be devastated.
In the context of the constitutionally prescribed budget process, the power to
appropriate public funds belongs exclusively to the Legislature. With respect to a bill
containing appropriations, the Governor has three options: (1) to sign the bill, (2) to veto
the measure in its entirety (Cal. Const., art. IV, § 10, subd. (a)), or (3) to “reduce or
eliminate one or more items of appropriation” (id., subd. (e) (hereafter article IV, section
10(e)), italics added). The question posed by this case is whether the Governor exceeded
his limited powers under article IV, section 10(e), by using his line-item authority to
further reduce funding levels set forth in midyear reductions that the Legislature had
made to the Budget Act of 2009 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 1, approved by
Governor, Feb. 20, 2009) (hereafter 2009 Budget Act), thereby imposing a reduction of
appropriated sums greater than the reduction made by the Legislature.

1
See generally People v. Coria (1999) 21 Cal.4th 868, 871 (adopting the underlying
decision of the Court of Appeal “[w]ith appropriate deletions and additions”); Mangini v.
Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1090 (“We agree with the Court of
Appeal‟s analysis — adopting both its result and much of its reasoning. . .”); California
Style Manual (4th ed. 2000) § 4:21[B], page 137, and cases cited; see also Cel-Tech
Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 178
(observing that “adopted” opinions are no less the opinion of this court, and have no less
precedential value, than other opinions issued by this court).
2

Petitioners include St. John‟s Well Child and Family Center, a nonprofit network
of five community health centers and six school-based clinics in medically underserved
areas of Los Angeles County, and other entities and individuals located throughout the
state whose programs and lives will be drastically affected by the further reductions here
at issue.2
Respondents are Arnold Schwarzenegger, the Governor of the State of California,
and John Chiang, who, as the Controller of the State of California, is responsible for the
administration of the state‟s finances, including disbursement of funds appropriated by
law.3 The Controller does not take a position on the merits of this litigation.
Interveners are Darrell Steinberg, in his official capacity as President pro Tempore
of the California State Senate, and in his personal capacity as a resident and taxpayer of
Sacramento County, and John Pérez, in his official capacity as Speaker of the California
Assembly. Several amici curiae have filed briefs supporting the various parties.4

2
Other petitioners are Rosa Navarro and Lionso Guzman, individual residents of
Los Angeles County who have received medical treatment from St. John‟s Well Child
and Family Center; California Foundation for Independent Living Centers, a statewide
nonprofit organization made up of 25 independent living centers providing services and
advocacy by and for persons with various types of disabilities; Nevada Sierra Regional
IHSS Public Authority, a public agency whose purpose is to make the IHSS (in-home
supportive services) component of those counties‟ public services operate more
effectively for consumers; Californians for Disability Rights, California‟s longest
established and largest membership organization of persons with disabilities; and Liane
Yasumoto and Judith Smith, who each receive IHSS assistance to cope with daily living
tasks.
3
The Governor and the Controller are sued in their official capacities only.
4
Among the amicus curiae briefs considered by this court are those filed in the
Court of Appeal in support of petitioners, by the following entities: Santa Clara County;
Service Employees International Union (SEIU) California State Council, United
Domestic Workers of America, and California United Homecare Workers; Children
Now, Valley Community Clinic, Eisner Pediatric & Family Medical Center, The Saban
Free Clinic, YWCA Monterey County, Westside Family Health Center, Community
Clinic Association of Los Angeles County, and the Legal Aid Association of California;
(Footnote continued on following page)
3

Petitioners and interveners contend that the action taken by the Governor exceeded
constitutional limits, because the individual budget cuts he made were not imposed on
“items of appropriation” (art. IV, § 10(e)) that could be individually vetoed or reduced.
They further contend that, in taking this action, the Governor purported to exercise
authority belonging solely to the Legislature, in violation of article III, section 3 of the
California Constitution.
Petitioners and interveners sought original relief in the Court of Appeal (pursuant
to Cal. Const., art. VI, § 10; Code Civ. Proc., §§ 387, 1085; & Cal. Rules of Court,
rule 8.485 et seq.) to enjoin the Controller from enforcing or taking any steps to enforce
the Governor‟s actions concerning certain provisions of Assembly Bill No. 1 (2009-2010
4th Ex. Sess.) (hereafter Assembly Bill 4X 1), as revised by the Governor‟s line-item
reduction of funding with regard to those provisions. (See Assem. Bill 4X 1, as amended
by Sen., July 23, 2009, and approved by Governor, July 28, 2009 [with certain deletions,
revisions, and reductions (hereafter Governor‟s July 28 Message)], enacted as
Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 1 (hereafter revised 2009 Budget Act).)
Because of the importance and urgency of the issues presented, the Court of Appeal
exercised its original jurisdiction (Legislature v. Eu (1991) 54 Cal.3d 492, 500; Raven v.
Deukmejian (1990) 52 Cal.3d 336, 340; see also Planned Parenthood Affiliates v. Van de
Kamp (1986) 181 Cal.App.3d 245, 262-265), issued an order to show cause, and held

(Footnote continued from previous page)
AIDS Project Los Angeles; and the Los Angeles County Democratic Central Committee
and the Riverside County Democratic Central Committee.

Also considered by this court are an amicus curiae brief filed in the Court of
Appeal in support of respondents Governor Schwarzenegger and Controller Chiang, and
a corresponding letter brief filed in this court by amici curiae George Deukmejian, Pete
Wilson, Gray Davis, the California Chamber of Commerce, the California Taxpayers‟
Association, and the California Business Roundtable (collectively, amici curiae former
California governors).
4

argument. That court thereafter issued a decision denying the petition for a writ of
mandate.5 As noted above, we agree with most of the analysis of the Court of Appeal
and with the conclusion it reached, and thus we shall deny the petition for a writ of
mandate.

5
Upon interveners‟ unopposed request, the Court of Appeal took judicial notice
(Evid. Code, §§ 451, 452) of various materials relating to the passage of the 2009 Budget
Act, Assembly Bill 4X 1, and the revised 2009 Budget Act — and we do likewise:

a. Senate Bill No. 1 (2009-2010 3d Ex. Sess.) approved by the Governor on
February 20, 2009;

b. Assembly Bill 4X 1, as amended by the Senate on July 23, 2009;
c. Assembly Bill 4X 1, as approved by the Governor on July 28, 2009 (containing
the Governor‟s July 28 Message);

d. Legislative Counsel Opinion No. 0920928 (Aug. 5, 2009) Governor‟s Line-
Item Veto Authority: Reductions to Existing Appropriations;

e. Ballot Pamphlet, General Election (Nov. 7, 1922) text and arguments in favor
of Proposition 12 pages 77-78 (State Budget Amendment), which enacted a constitutional
amendment expanding the scope of the Governor‟s line-item authority;

f. Voter Information Guide, Special Election (Nov. 8, 2005) text and analysis of
voter initiative Proposition 76 pages 60, 22-29 (State Spending and School Funding
Limits);

g. Secretary of State, Statement of Vote concerning Proposition 76;
h. Voter Information Guide, Special Election (May 19, 2009) text and analysis of
Proposition 1A pages 76, 10-15 (State Budget Changes. California Budget Process.
Limits State Spending. Increases “Rainy Day” Budget Stabilization Fund);

i. Secretary of State, Statement of Vote concerning Proposition 1A.
The appellate court also took judicial notice (Evid. Code, §§ 459, 452), at the
Governor‟s request (and we do likewise), of the following ballot materials presented to
the voters in conjunction with their consideration of two measures: (1) Proposition 58:
Supplemental Voter Information Guide, Primary Election (Mar. 2, 2004) text and
analysis of Proposition 58 (The California Balanced Budget Act), pages 20, 11-13,
adding article IV, section 20, subdivision (f) to the California Constitution;
(2) Proposition 12: Ballot Pamphlet, General Election (Nov. 7, 1922) text and arguments
in favor of Proposition 12, page 77-78 (same material as item e., above, in different
format).
5

II.

On February 20, 2009, the Governor signed into law the 2009 Budget Act, which
set forth various appropriations of state funds for the 2009-2010 fiscal year. Thereafter,
California‟s economy worsened; the revenue assumptions upon which the 2009 Budget
Act was based proved to be far too optimistic, and the state‟s overall cash-flow positions
continued to deteriorate. The Governor, pursuant to California Constitution, article IV,
section 10, subdivision (f) proclaimed a fiscal crisis,6 and the Legislature assembled in
special session to address the fiscal emergency. Following months of negotiations, the
Legislature passed Assembly Bill 4X 1 on July 23, 2009. The final revised budget
package enacted as Assembly Bill 4X 1 consisted of 547 pages, set forth in 583 sections,
and represented an effort to address more than $24 billion in budget shortfalls, including
$15.6 billion in cuts, nearly $4 billion in additional revenues, more than $2 billion in
borrowing, approximately $1.5 billion in fund shifts, and more than $1 billion in deferrals
and other adjustments.

6
California Constitution, article IV, section 10, subdivision (f) provides: “(1) If,
following the enactment of the budget bill for the 2004-05 fiscal year or any subsequent
fiscal year, the Governor determines that, for that fiscal year, General Fund revenues will
decline substantially below the estimate of General Fund revenues upon which the budget
bill for that fiscal year, as enacted, was based, or General Fund expenditures will increase
substantially above that estimate of General Fund revenues, or both, the Governor may
issue a proclamation declaring a fiscal emergency and shall thereupon cause the
Legislature to assemble in special session for this purpose. The proclamation shall
identify the nature of the fiscal emergency and shall be submitted by the Governor to the
Legislature, accompanied by proposed legislation to address the fiscal emergency.

“(2) If the Legislature fails to pass and send to the Governor a bill or bills to
address the fiscal emergency by the 45th day following the issuance of the proclamation,
the Legislature may not act on any other bill, nor may the Legislature adjourn for a joint
recess, until that bill or those bills have been passed and sent to the Governor.

“(3) A bill addressing the fiscal emergency declared pursuant to this section shall
contain a statement to that effect.” (See Professional Engineers in California
Government v. Schwarzenegger (Oct. 4, 2010, S183411) ___ Cal.4th ___, ___ [ p. 8].)
6

On July 28, 2009, the Governor exercised his line-item authority to reduce or
eliminate several items contained in Assembly Bill 4X 1, and then signed the measure
into law. (Rev. 2009 Budget Act.) The Governor eliminated numerous separate line
items contained in various sections of Assembly Bill 4X 1. The effect of these reductions
was to further decrease the total amount appropriated in the 2009 Budget Act by more
than $488 million. Many of the items reduced by the Governor already had been reduced
by the Legislature in Assembly Bill 4X 1 from the amounts appropriated in the 2009
Budget Act. The Governor‟s signing message explained that his cuts to the spending bill
were for the most part designed “to increase the reserve and to reduce the state‟s
structural deficit.” (Governor‟s July 28 Message [concerning Assem. Bill 4X 1,
§§ 18.00, 18.10, 18.20, 18.40]; see also id. [same, concerning §§ 17.50, 18.50].)
This original mandamus proceeding by petitioners and interveners followed,7
challenging the Governor‟s use of line-item reductions with respect to seven sections of
Assembly Bill 4X 1 — specifically, section 568 and sections 570 through 575.8 The

7
On August 10, 2009, intervener Steinberg filed a complaint in the San Francisco
Superior Court, seeking a writ of mandate addressing the same issue presented in the case
now before us, and challenging the Governor‟s use of the line-item authority with regard
to various items contained in Assembly Bill 4X 1. One week later, Steinberg informed
the Court of Appeal that his petition was pending in the superior court and explained that
it challenged not only the items challenged in the present matter by petitioners, but
additionally 14 other utilizations of line-item authority by the Governor. Following the
appellate court‟s subsequent request that respondents address all issues raised by the
petitioners‟ writ petition, Steinberg and then Assembly Speaker Karen Bass
(subsequently succeeded by current Assembly Speaker John Pérez) sought to intervene
and urged the Court of Appeal to issue the original writ sought by petitioners. The
appellate court granted the motion to intervene.
8
As enacted by the Legislature and submitted to the Governor, the relevant
provisions of Assembly Bill 4X 1 provide in pertinent part:

“SEC. 568. Section 17.50 is added to the Budget Act of 2009, to read: [¶] Sec.
17.50. The amount appropriated in Item 4170-101-0001 of Section 2.00 is hereby
reduced by $9,483,000.” (Assem. Bill 4X 1, § 568 [Cal. Dept. of Aging].)
(Footnote continued on following page)
7

Governor‟s actions affected those seven sections of Assembly Bill 4X 1 in the following
manner:
Section 17.50 further reduced the general fund appropriation for the State
Department of Aging by $6,160,000;
Section 18.00, subdivision (a) further reduced the general fund appropriation for
local assistance of the Medi-Cal program by $60,569,000, and section 18.00,
subdivision (e) eliminated funding for community clinic programs;

(Footnote continued from previous page)
“SEC. 570. Section 18.00 is added to the Budget Act of 2009, to read: [¶] Sec.
18.00 (a) The amount appropriated in Item 4260-101-0001 of Section 2.00 is hereby
reduced by $2,789,402,000. [¶] . . . [¶] (e) The amount appropriated in Item 4260-111-
0001 of Section 2.00 is hereby reduced by $4,303,000.” (Assem. Bill 4X 1, § 570 [State
Dept. of Health Care Services].)

“SEC. 571. Section 18.10 is added to the Budget Act of 2009, to read: [¶] Sec.
18.10 [¶] . . . [¶] (c) The amount appropriated in Item 4265-111-0001 of Section 2.00 is
hereby reduced by $62,967,000.” (Assem. Bill 4X 1, § 571 [State Dept. of Public
Health].)

“SEC. 572. Section 18.20 is added to the Budget Act of 2009, to read: [¶] Sec.
18.20. (a) The amount appropriated in Item 4280-101-0001 of Section 2.00 is hereby
reduced by $125,581,000.” (Assem. Bill 4X 1, § 572 [Managed Risk Medical Insurance
Bd., relating to the Healthy Families Program].)

“SEC. 573. Section 18.30 is added to the Budget Act of 2009, to read: [¶] Sec.
18.30. (a) The amount appropriated in Item 4300-101-0001 of Section 2.00 is hereby
reduced by $214,828,000.” (Assem. Bill 4X 1, § 573 [State Dept. of Developmental
Services, for regional centers].)

“SEC. 574. Section 18.40 is added to the Budget Act of 2009, to read: [¶] Sec.
18.40. [¶] . . . [¶] (e) The amount appropriated in Item 4440-111-0001 of Section 2.00
is hereby reduced by $3,547,000.” (Assem. Bill 4X 1, § 574 [State Dept. of Mental
Health, for caregiver resource centers serving families of adults with acquired brain
injuries].)

“SEC. 575. Section 18.50 is added to the Budget Act of 2009, to read: [¶] Sec.
18.50. [¶] . . . [¶] (d) The amount appropriated in Item 5180-111-0001 of Section 2.00
is hereby reduced by $643,248,000.” (Assem. Bill 4X 1, § 575 [State Dept. of Social
Services, for local assistance].)
8

Section 18.10 further reduced funding for various programs administered by the
Office of AIDS by $52,133,000, further reduced funding for the Domestic Violence
Program by $16,337,000,9 further reduced funding for the Adolescent Family Life
Program by $9,000,000, and further reduced funding for the Black Infant Health Program
by $3,003,000;
Section 18.20 further reduced funding for the Healthy Families Program by
$50,000,000;
Section 18.30 further reduced funding for the Regional Center Purchase of
Services for children up to the age of five years by $50,000,000;
Section 18.40 further reduced funding for the Caregiver Resource Centers by
$4,082,000; and
Section 18.50 further reduced funding for the In-Home Supportive Services
program by $37,555,000.
III.
The question presented by this case as a matter of first impression is whether, after
the Legislature has made midyear reductions to appropriations that originally appeared in
the 2009 Budget Act, the Governor‟s line-item power encompasses the authority to make
further reductions. Although this particular issue is novel, we find guidance in our
decision in Harbor v. Deukmejian (1987) 43 Cal.3d 1078 (Harbor), in which we

9
At the Governor‟s request, and over the objection of interveners, the Court of
Appeal took judicial notice of Senate Bill No. 13 (2009-2010 3d Ex. Sess.) (chaptered as
Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 29, approved by Governor, Oct. 21, 2009)),
enacted by the Legislature after the Governor exercised his authority under article VI,
section 10(e). We likewise take judicial notice of this matter. The bill transferred
$16.3 million from the Alternative and Renewable Fuel and Vehicle Technology Fund to
the general fund as a loan in order to appropriate those funds to the California Emergency
Management Agency for the purpose of supporting domestic violence shelters for the
2009-2010 fiscal year.
9

extensively described the constitutional framework within which a Governor exercises
his or her line-item authority.
“The California Constitution declares that the legislative power of the state is
vested in the Legislature (art. IV, § 1) and the executive power [is vested] in the
Governor (art. [V], § 1). Unless permitted by the Constitution, the Governor may not
exercise legislative powers. (Art. III, § 3.) He may veto a bill „by returning it with any
objections to the house of origin,‟ and it will become law only if „each house then passes
the bill by rollcall vote . . . two thirds of the membership concurring. . . .‟ [Art. IV, § 10,
subd. (a).] If the Governor fails to act within a certain period of time, the measure
becomes law without his signature. (Art. IV, § 10, subd. [(b)].) The Governor‟s veto
power is more extensive with regard to appropriations. He may „reduce or eliminate one
or more items of appropriation while approving other portions of a bill.‟ Such items may
be passed over his veto in the same manner as vetoed bills. (Art. IV, § 10, subd. [(e)].)”
(Harbor, supra, 43 Cal.3d at p. 1084, italics added.)10

10
Article IV, section 10 of the California Constitution provides in part: “(a) Each
bill passed by the Legislature shall be presented to the Governor. It becomes a statute if
it is signed by the Governor. The Governor may veto it by returning it with any
objections to the house of origin, which shall enter the objections in the journal and
proceed to reconsider it. If each house then passes the bill by rollcall vote entered in the
journal, two-thirds of the membership concurring, it becomes a statute. [¶] . . . [¶]
(e) The Governor may reduce or eliminate one or more items of appropriation while
approving other portions of a bill. The Governor shall append to the bill a statement of
the items reduced or eliminated with the reasons for the action. The Governor shall
transmit to the house originating the bill a copy of the statement and reasons. Items
reduced or eliminated shall be separately reconsidered and may be passed over the
Governor‟s veto in the same manner as vetoed bills.”

Regarding override of the Governor‟s line-item authority, as the Governor
observes in his answer brief: “The legislative process for overruling a line-item veto has
been used many times in the past. In 1979 alone, the Legislature overrode eight
budgetary line-item vetoes.” (Citing 4 Sen. J. (1979-1980 Reg. Sess.) pp. 6027-6029; 5
Assem. J. (1979-1980 Reg. Sess.) pp. 8318-8319, 8333-8334, 8351.)
10

Our decision in Harbor, agreeing with the petitioners in that case, observed: “[I]n
vetoing legislation, the Governor acts in a legislative capacity, and . . . in order to
preserve the system of checks and balances upon which our government is founded, he
may exercise legislative power only in the manner expressly authorized by the
Constitution.” (Harbor, supra, 43 Cal.3d at p. 1084.) Because the Constitution
authorizes the Governor only “to veto a „bill‟ or to reduce or eliminate „items of
appropriation[,]‟ the Governor may not veto part of a bill which is not an „item of
appropriation.‟ ” (Ibid.)
After tracking the historical development of the veto power from its origins in
Rome, where the tribune of plebeians had the power to disapprove measures
recommended by the senate, we explained in Harbor that “[t]he word, „veto‟ means „I
forbid‟ in Latin. Then, as now, the effect of the veto was negative, frustrating an act
without substituting anything in its place.” (Harbor, supra, 43 Cal.3d at p. 1085, citing
Zinn, The Veto Power of the President (1951) 12 F.R.D. 209.) After evolving in the
United States as “an integral part of the system of checks and balances” (Harbor, at
p. 1085), the veto power at the federal level has been circumscribed by the limitation that
the President may approve or reject a bill in its entirety, but may not select portions of a
bill for disapproval. “As a much-quoted early case commented, „the executive, in every
republican form of government, has only a qualified and destructive legislative function,
and never creative legislative power.‟ (State v. Holder (1898) 23 So. 643, 645.)”
(Harbor, at p. 1086.) Significantly, although “the rule prohibiting selective exercise of
the veto is unyielding in the federal system, most states have provided an exception for
items of appropriation.” (Ibid.; see Thirteenth Guam Legislature v. Bordallo (D. Guam
1977) 430 F.Supp. 405, 410.)
“In California, the Constitution of 1849 included a gubernatorial veto provision
similar to that contained in the United States Constitution. (Cal. Const. of 1849, art. IV,
§ 17 . . . .) The Constitution of 1879 added the item veto power, allowing the Governor
11

to „object to one or more items‟ of appropriation in a bill which contained several „items
of appropriation.‟ (Cal. Const. of 1879, art. IV, § 16.) By constitutional initiative in
1922, the Governor was empowered not only to eliminate ‘items of appropriation’ but to
reduce them, while approving other portions of a bill. (Art. IV, § 10, subd. ([e]).) The
1922 amendment also directed the Governor to submit a budget to the Legislature
containing his recommendation for state expenditures. (Art. IV, § 12, subd. (a).)”
(Harbor, supra, 43 Cal.3d at p. 1086, italics added.)
The ballot argument in favor of the 1922 constitutional initiative that empowered
the Governor to exercise line-item authority to reduce an item of appropriation stated in
relevant part: “The budget system will save the taxpayer money, because all state
appropriations will be handled in a business way, duplications prevented and
extravagance avoided. The proposed measure will also enable the Governor to reduce an
appropriation to meet the financial condition of the treasury, which under our present
system he cannot do. Frequently a worthy measure is vetoed because the legislature
passes a bill carrying an appropriation for which sufficient funds are not available. Under
present conditions the Governor is compelled to veto the act, no matter how meritorious,
because of the excessive appropriation, whereas, if he had the power given by the
proposed constitutional amendment, he could approve the bill with a modified
appropriation to meet the condition of the treasury.” (Ballot Pamp., Gen. Elec. (Nov. 7,
1922) argument in favor of Prop. 12, pp. 78-79, italics added.)
Neither the so-called “item veto,” nor the “line-item veto” allowing the Governor
to eliminate or reduce items of appropriation, confers the power to selectively veto
general legislation. (Harbor, supra, 43 Cal.3d at p. 1087; Lukens v. Nye (1909) 156 Cal.
498, 501-503.) The Governor has no authority to veto part of a bill that is not an “item of
appropriation.” (Harbor, at pp. 1084-1085, 1088-1089.) “[A]rticle III, section 3
provides that one branch of government may not exercise the powers granted to another
„except as permitted by this Constitution.‟ Case law, commentators, and historians have
12

long recognized that in exercising the veto the Governor acts in a legislative capacity.
[Citations.] . . . [¶] It follows that in exercising the power of the veto the Governor may
act only as permitted by the Constitution. That authority is to veto a „bill‟ (art. IV, § 10,
subd. (a)) or to „reduce or eliminate one or more items of appropriation‟ (id.,
subd. ([e]).)” (Harbor, supra, 43 Cal.3d at pp. 1088-1089.)
The dispositive issue, then, is whether the funding in question — specified in the
seven sections of Assembly Bill 4X 1 that the Governor further reduced — encompassed
“items of appropriation” (Cal. Const., art. IV, § 10(e)) as to which the Governor could
exercise his line-item authority.
IV.
Petitioners and interveners contend that, because the items at issue in Assembly
Bill 4X 1 reduced the amounts previously appropriated in the 2009 Budget Act, these
items were not “appropriations.” They maintain that a “reduction” cannot be an
“appropriation,” and observe that there are no instances in which a California governor
previously has exercised line-item authority in this manner.
Subsequent to the passage of the 1922 constitutional amendment empowering the
Governor to exercise line-item authority, we addressed in two significant decisions the
question of what constitutes an “item of appropriation” subject to the Governor‟s line-
item power. (Harbor, supra, 43 Cal.3d 1078; Wood v. Riley (1923) 192 Cal. 293.) We
review these cases for guidance.
A.
1.
Wood v. Riley, supra, 192 Cal. 293, was decided in 1923, shortly after the
Constitution was amended to allow the Governor to use line-item authority to reduce as
well as to eliminate “items of appropriation.” That case involved the Legislature‟s action
of adding to a budget bill a proviso requiring the Controller to transfer to the state
Department of Education, as an additional administrative allotment for the department,
13

1 percent of the appropriations that had been set aside for salaries and support of several
teachers‟ colleges and special schools. (Wood v. Riley, at pp. 294-296.) The Governor
vetoed this set-aside proviso. (Id., at p. 296.) The Director of Education sought to
enforce the proviso, notwithstanding the Governor‟s disapproval, arguing that the
Governor had attempted to veto part of a sentence in an appropriation bill that did not
appropriate money, but that simply provided for a transfer, as a matter of bookkeeping, of
a percentage of funds already appropriated. (Id., at p. 297; see Harbor, supra, 43 Cal.3d
at p. 1091, fn. 13.) We upheld the exercise of the veto, finding that although the set-aside
proviso took no new money from the state treasury, the proviso nevertheless constituted
“a specific setting aside of an amount, not exceeding a definite fixed sum, for the payment
of certain particular claims or demands. . . . It appears in no other light than as
amounting to an item of appropriation in that it adds an additional amount to the funds
already provided for the administration of the office of the director of education through
the sums appropriated for the use of the state board of education and the superintendent
of public instruction. This court has held that „by a specific appropriation‟ was
understood „an Act by which a named sum of money has been set apart in the treasury
and devoted to the payment of a particular claim or demand[.] . . . The proviso, therefore,
appears to fill all the requirements of a distinct item of appropriation of so much of a
definite sum of money as may be required for a designated purpose connected with the
state government.” (Wood v. Riley, supra, 192 Cal. at pp. 303-304, italics added.)
This court also was persuaded that the Legislature had sought to insulate from the
veto an additional appropriation for the “general administrative office” within the
department — something the Legislature would have had no authority to do had it
directly appropriated funds for that office. (Wood v. Riley, supra, 192 Cal. at pp. 304-
305.) We explained: “It is very clear that the situation presented is that no appropriation
having been recommended by the Governor, or included in the proposed budget bill, for
the payment of the „salaries and support of the general administrative office of the
14

division of normal and special schools,‟ other than the general provisions for the support
of the state board of education and the state superintendent of schools, the legislature
attempted, by the inclusion of the proviso in the bill, to make such additional
appropriation for such purpose under the guise of an administrative allotment.
Therefore, looked at in the light of what it was intended to accomplish, and what it would
have accomplished if allowed to stand, one cannot escape the conviction that it worked
an appropriation. It added a specific amount to the allowance already made for the use of
the state board of education and the state superintendent of schools.” (Ibid.) We
concluded the Legislature could not “by indirection, defeat the purpose of the
constitutional amendment giving the Governor power to control the expenditures of the
state, when it could not accomplish that purpose directly or by an express provision in
appropriation bills.” (Id., at p. 305.) In other words, we determined in Wood v. Riley that
a provision that took no additional funds from the state treasury nevertheless constituted
an “appropriation” under the newly adopted constitutional provision — and hence that
this provision was subject to the Governor‟s proper exercise of his line-item authority.
2.
Harbor, supra, 43 Cal.3d 1078, involved the Legislature‟s enactment of a budget
for the 1984-1985 fiscal year. One item in the proposed budget was an appropriation of
more than $1.5 billion for aid to families with dependent children (AFDC). Ten days
later, the Legislature passed a trailer bill containing 71 sections enacting, amending, and
repealing numerous provisions in various codes. (Sen. Bill No. 1379 (1983-1984 Reg.
Sess.), enacted as Stats. 1984, ch. 268, p. 1302.) The trailer bill was to become operative
only in the event the Budget Act of 1984 (1984 Budget Act) also was enacted. (Stats.
1984, ch. 268, § 70, p. 1407.) Among the trailer bill‟s provisions was section 45.5
(Stats. 1984, ch. 268, § 45.5, p. 1383 (hereafter section 45.5)), amending the Welfare and
Institutions Code to allow AFDC benefits to be paid under certain circumstances from the
date a benefits application was made, rather than from when the application was
15

processed. (Harbor, at pp. 1082-1083.) In approving the 1984 Budget Act, the Governor
reduced by more than $9 million the item containing the AFDC allotment. Two days
later, he approved the trailer bill, but purported to veto section 45.5 relating to the timing
of the benefits payments. (Harbor, at pp. 1082-1083.)
On review, we held that the Governor‟s purported veto of section 45.5 of the
trailer bill, relating to timing of the benefits, was unauthorized, because this provision
was not an “item of appropriation,” and hence the Governor could not selectively veto the
item without vetoing the entire bill. (Harbor, supra, 43 Cal.3d at pp. 1090-1091.)11 In
making the determination that section 45.5 was not an “item of appropriation,” we
recognized that “[t]he term has been defined in various ways. Wood v. Riley, supra,
192 Cal. 293, 303, defines it as „a specific setting aside of an amount, not exceeding a
definite sum, for the payment of certain particular claims or demands . . . not otherwise
expressly provided for in the appropriation bill.‟ It „adds an additional amount to the
funds already provided.‟ In Bengzon [v. Secretary of Justice (1937) 299 U.S. 410] the
term was described as a bill whose „primary and specific aim . . . is to make
appropriations of money from the public treasury.‟ (299 U.S. 410 at p. 413.) Other cases
employ somewhat different definitions (e.g., Jessen Associates, Inc. v. Bullock (Tex.
1975) 531 S.W.2d 593, 599 [„setting aside or dedicating of funds for a specified
purpose‟]; Commonwealth v. Dodson (1940) 176 Va. 281 [11 S.E.2d 120, 127] [„an
indivisible sum of money dedicated to a stated purpose‟]).” (Harbor, supra, 43 Cal.3d at
p. 1089.)

11
We further held, however, that the trailer bill violated the single subject rule of
article IV, section 9 of the California Constitution. (Harbor, supra, 43 Cal.3d at p. 1094.)
Accordingly, because the Governor would have had the power to veto section 45.5 had it
been passed by the Legislature as a separate bill, as to both rulings we gave our
determination prospective effect only. The net effect was that the veto was not
invalidated, and that only the one section of the bill was rendered inoperative. (Harbor, at pp. 1101-1102.)
16

We determined that the provision at issue did not qualify “as an item of
appropriation under any of these definitions. It does not set aside money for the payment
of any claim and makes no appropriation from the public treasury, nor does it add any
additional amount to funds already provided for. Its effect is substantive. Like thousands
of other statutes, it directs that a department of government act in a particular manner
with regard to certain matters. Although as is common with countless other measures,
the direction contained therein will require the expenditure of funds from the treasury,
this does not transform a substantive measure to an item of appropriation. We agree with
petitioners that section 45.5 only expresses the Legislature‟s intention that the AFDC
appropriation, whatever its amount, must be used to provide benefits to recipients from
the date of application under certain circumstances.” (Harbor, supra, 43 Cal.3d at
pp. 1089-1090.)
We proceeded to reject the Governor‟s complaint that the Legislature had
attempted to separate the appropriation and its purpose into discrete measures in order to
evade a veto of the entire indivisible measure. (Harbor, supra, 43 Cal.3d at pp. 1090-
1091.) We observed: “Both were specified in the [1984] Budget Act, that is, over
$1.5 billion was appropriated for the purpose of funding AFDC. The Governor is bound
by this „purpose‟ as set forth in the budget. If the Legislature chooses to budget by a
lump sum appropriation, [the Governor] may eliminate or reduce the amount available
for the purpose as set forth therein. Here, the Governor not only reduced the „item of
appropriation‟ as set forth in the budget, but he divided it into its supposed component
parts, assigned a purpose and amount to the part he disapproved, reduced the total by that
amount, and attempted to veto a portion of a substantive bill which he claims contains the
„subject of the appropriation.‟ We are aware of no authority that even remotely supports
the attempted exercise of the veto in this manner.” (Id., at pp. 1090-1091.)
Finally, we concluded that even the Legislature‟s attempt to avoid the Governor‟s
veto did not provide a sufficient basis to conclude that section 45.5 was not an “item of
17

appropriation.” We found that no definition of the term “item of appropriation” as used
in the Constitution — including the use of that term in Wood v. Riley, supra, 192 Cal.
293 — could “reasonably embrace a provision like section 45.5, which does not set aside
a sum of money to be paid from the public treasury.” (Harbor, supra, 43 Cal.3d at
p. 1092.) We explained that the circumstance that “in Wood the term „item of
appropriation‟ was construed in such a way as to facilitate the Governor‟s power to veto a
portion of the budget bill which could reasonably be encompassed within the meaning of
that term does not provide authority for holding . . . that the Governor may veto part of a
general bill — a power denied him by the Constitution — in order to foil an alleged
legislative attempt to evade the veto.” (Id., at p. 1092.)12
B.
As in the situation presented in Wood v. Riley, supra, 192 Cal. 293, and unlike that
before the court in Harbor, supra, 43 Cal.3d 1078, the challenged items presented to the

12
Subsequent to Harbor, supra, 43 Cal.3d 1078, the Court of Appeal in California
Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264 (Safety Education)
described an appropriation, in a similar manner, as “a legislative act setting aside „a
certain sum of money for a specified object in such manner that the executive officers are
authorized to use that money and no more for such specified purpose.‟ (Ryan v. Riley (1924) 65 Cal.App. 181, 187.)” (Safety Education, at p. 1282.)

The question in Safety Education was whether the statutory scheme at issue,
concerning driver education, reflected “a continuing appropriation by the Legislature or
whether the availability of driver training funding is subject to legislative discretion.”
(Safety Education, supra, 30 Cal.App.4th at p. 1282.) The court concluded the statutory
language clearly provided that the funds that may be used to pay for driver training were
limited to amounts appropriated in the annual budget act, leading to the conclusion that
the statutory scheme did not establish a continuing appropriation. (Id., at p. 1283.) The
asserted continuing-appropriation provisions in that case did not list any dollar amount,
and expressly deferred the amount of appropriation to “the annual Budget Act” item that
addressed driver education. (Id., at p. 1272.) The decision in Safety Education does not
stand for the proposition, asserted by petitioners, that a limitation upon or reduction of an
appropriation does not constitute an appropriation.
18

Governor in Assembly Bill 4X 1 each “appear[] to fill all the requirements of a distinct
item of appropriation of so much of a definite sum of money as may be required for a
designated purpose connected with the state government.” (Wood v. Riley, at p. 304,
italics added.) Assembly Bill 4X 1 “set aside a sum of money to be paid from the public
treasury” (Harbor, at p. 1092), albeit a sum smaller than that initially appropriated in the
2009 Budget Act.
Petitioners, interveners, and their amici curiae insist that only an increase in
spending authority can constitute an appropriation. They emphasize that none of the
definitions of “item of appropriation” contained in the cases refer to a decrease in the
spending authorized by a previously enacted budget, and they maintain that such a
reduction may not be deemed an item of appropriation. They further argue that because
the 2009 Budget Act already had set aside sums of money to be paid by the treasury for
specific purposes, those items and the sections of Assembly Bill 4X 1 that proposed only
reductions to existing, previously enacted appropriations did not satisfy the requirement
of money set aside for a particular purpose. The argument, in other words, is that a
reduction in a set-aside cannot itself be considered a set-aside or an appropriation. We
disagree.
The cases do not require, as petitioners and interveners suggest, that solely items
that add amounts to funds already provided can constitute “items of appropriation.” We
concluded that Governor Deukmejian‟s claim failed in Harbor because section 45.5 of
the trailer bill did not qualify “as an item of appropriation under any of [the] definitions”
we reviewed. (Harbor, supra, 43 Cal.3d at p. 1089, italics added.) We observed that the
provision “does not set aside money for the payment of any claim and makes no
appropriation from the public treasury, nor does it add any additional amount to funds
already provided for. Its effect is substantive.” (Ibid., italics added.) Furthermore,
unlike section 45.5 at issue in Harbor, which did not refer to any sum of money, much
19

less a definite or ascertainable sum, the Assembly Bill 4X 1 items here at issue specified
definite amounts by which the original appropriations would be reduced.
Whether spending authority is increased or decreased, it still fundamentally
remains spending authority. Although described as reductions in specified items and
sections, each of the provisions at issue in Assembly Bill 4X 1 nevertheless directs the
“specific setting aside of an amount, not exceeding a definite fixed sum, for the payment
of certain particular claims or demands.” (Wood v. Riley, supra, 192 Cal. at p. 303; see
Harbor, supra, 43 Cal.3d at p. 1092.) The items in Assembly Bill 4X 1 that were
eliminated or further reduced by the Governor‟s exercise of line-item authority capped
the spending authority at an amount less than that set forth in the 2009 Budget Act. The
Controller could not thereafter disburse, nor could the recipients of the funds thereafter
draw upon, any amount larger than that set aside by the Legislature for the specified
purposes. (Wood v. Riley, at p. 303 [once enacted, an appropriation “ „cannot be
thereafter increased except by further legislative appropriation‟ ”], citing, among other
authority, Stratton v. Green (1872) 45 Cal. 149, 151.)
There is no substantive difference between a Governor‟s reduction of an item of
appropriation in the original 2009 Budget Act, to which interveners and petitioners raise
no objection, and a Governor‟s reduction of that same item in a subsequent amendment to
the 2009 Budget Act — that is, Assembly Bill 4X 1. Both actions involve changes in
authorized spending.
Interveners insist in their reply brief that the Governor was entitled, in essence, to
only one bite at the budget apple. They concede that although he “had the authority to
reduce or eliminate each of the items of appropriation at issue here when they were first
passed in February, 2009,” he nevertheless did not possess that same authority a few
months later with regard to “the legislative reductions made in July.” We discern no
reason why the Governor should have the power to reduce items of appropriation when
first enacted, and yet not retain that same power when the Legislature, in response to
20

changed circumstances, sees fit to amend those same appropriations. In both instances,
the Governor holds constitutionally granted authority to reduce the allocation of state
expenditures.13
Adoption of the view advanced by petitioners, interveners, and their amici curiae
that the legislative provisions at issue were not “items of appropriation” would permit the
Legislature, in a single bill, to selectively make multiple reductions in previous
appropriations, leaving the Governor only the power to veto the entire bill — a limitation

13
Although the precise question whether reductions in appropriations are items of
appropriation subject to the Governor‟s line-item authority is, as we have observed, a
question of first impression in this state, the Arizona Supreme Court answered this
question affirmatively in Rios v. Symington (1992) 833 P.2d 20 (Rios), a case relied upon
by the Governor. In Rios, the court rejected the claim that the governor‟s line-item veto
power did not extend to legislative measures decreasing prior appropriations: “When the
Legislature transfers monies from a previously-made appropriation, the obvious effect is
to reduce the amount of the previous appropriation. The Constitution does not permit
such reductions free of gubernatorial oversight. To hold otherwise would permit the
Legislature to do indirectly that which it may not do directly, and would seriously limit
the Executive‟s constitutional role in the appropriation process. [¶] . . . [¶] In our view,
if the Governor‟s constitutional power to line item veto an appropriation is to mean
anything, the Governor must be constitutionally empowered to line item veto a
subsequent reduction or elimination of that appropriation.” (Id., at p. 26.)

Although the analysis in Rios, supra, 833 P.2d 20, arguably supports our
conclusion, we are aware that the constitutional framework for exercise of the governor‟s
power in Arizona described in Rios is different in some critical respects from
California‟s. Unlike our Constitution, Arizona‟s does not empower its governor to
“reduce” an item of appropriation. In addition, because of the terms of the line-item
authority at issue in the Rios case, the net effect of the governor‟s action in Rios was to
reinstate the original appropriation. In this regard, the Governor observes in his answer
brief that although “[p]etitioners contend that Rios favors their argument because in Rios
the net effect of the line-item vetoes resulted in a reinstatement of the original
appropriation,” nevertheless “the net effect of the Governor‟s action in Rios was not a
controlling factor in the court‟s opinion, but rather was a consequence of the terms of the
line-item veto in Arizona.”

We need not resolve the parties‟ dispute concerning Rios, because we conclude
independently, on the basis of the language and history of article IV, section 10(e), that
legislative acts reducing appropriations remain, and are themselves, appropriations.
21

that the 1922 amendment to article IV of the California Constitution specifically was
designed to eliminate. (See ante, at p. 12.) Indeed, as we earlier observed, that
amendment was promoted in order to permit the Governor to “reduce an appropriation to
meet the financial needs of the treasury” (Ballot Pamp., Gen. Elec. (Nov. 7, 1922)
argument in favor of Prop. 12, p. 79, italics added), and we are unaware of any evidence
or authority suggesting that the drafters of that measure and the voters who enacted
article IV, section 10(e) intended that the Governor should be precluded from exercising
such line-item authority in order to further reduce authorized funding following a
legislative act that itself reduced such funding in response to an ongoing and mounting
fiscal crisis. Moreover, if spending reductions are not considered to be items of
appropriation (and hence are not subject to a two-thirds vote requirement), a simple
legislative majority would be able to overturn a two-thirds vote on the annual budget act.
We decline to construe the phrase “items of appropriation” in such a manner.14
C.

14
Nor do common dictionary definitions of the word “appropriation” support
arguments that only an increase in spending authority can constitute an appropriation.
(See Black‟s Law Dict. (8th ed. 2004) p. 110 [defining “appropriation” as “1. The
exercise of control over property; a taking of possession. . . . 2. A legislative body‟s act
of setting aside a sum of money for a public purpose”]; and also p. 174 [defining
“appropriations bill” as “[a] bill that authorizes governmental expenditures”]; Merriam-
Webster‟s Collegiate Dict. (11th ed. 2004) p. 61 [defining “appropriation” as “2.
something that has been appropriated; specif : money set aside by formal action for a
specific use”]; and 1 Oxford English Dict. (2d ed. 1989) p. 587 [defining “appropriation”
as “3. The assignment of anything to a special purpose; concr. the thing so assigned, esp.
a sum of money set apart for any purpose”].) Finally, we observe that the related term
“appropriations subject to limitation” in article XIII B, section 8, subdivision (a) of the
California Constitution is defined as “any authorization to expend during a fiscal year the
proceeds of taxes levied by or for the State . . . .”
22

Our determination that the challenged actions concerned authorized reductions of
“items of appropriation” is further supported by the structure and content of Assembly
Bill 4X 1 itself.
We begin with the observation that this bill constitutes an amendment to the 2009
Budget Act. (See People v. Kelly (2010) 47 Cal.4th 1008, 1027 [“an amendment includes
a legislative act that changes an existing . . . statute by taking away from it”] (Kelly);
Planned Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187, 1199 [an
amendment is a legislative act changing prior or existing law by adding or taking from it
some particular provision].) As noted above, this extensive and multi-itemed budget bill
contains hundreds of sections, some of which increased spending over what was
appropriated in the 2009 Budget Act.15 In many other respects, Assembly Bill 4X 1
decreased numerous appropriations made in the 2009 Budget Act.

The lengthy title of Assembly Bill 4X 1 describes the measure as follows: “An act
to amend and supplement the Budget Act of 2009 . . . by amending Items [there follows a
list of more than 350 items by number] of, by adding Items [there follows a list of more
than 100 items by number] to, and by repealing Items [there follows a list of more than
40 items by number] of . . . that act, and by amending Sections [there follows a list of 10
sections] of, by adding Sections [there follows a list of 21 sections, including sections
17.50, and 18.00 through 18.50, here at issue] to, and by repealing Section 24.65 of, that
act, relating to the State Budget, making an appropriation therefor, and declaring the

15
The Governor observes that section 10 of Assembly Bill 4X 1 increased funding
for item No. 0250-101-0932, for the support of “local assistance, Judicial Branch,
payable from the Trial Court Trust Fund”; section 61 increased funding for item
No. 0690-001-0001, for the support of the California Emergency Management Agency;
section 149 increased funding for item No. 2670-001-0290, for the support of the Board
of Pilot Commissioners; and section 318 increased item No. 4265-001-0890, for the
support of the Department of Public Health. (Assem. Bill 4X 1, §§ 10, 61, 149, & 318.)
23

urgency thereof, to take effect immediately.” (Assem. Bill 4X 1, italics added.) The last
section of the bill recites that the “act is an urgency statute” that “makes revisions in
appropriations for the support of the government of the State of California and for
several public purposes for the 2009-10 fiscal year.” (Assem. Bill 4X 1, § 583, italics
added.) Hence, both by title and by express statement, Assembly Bill 4X 1 declares that
it amends the 2009 Budget Act by making appropriations. Moreover, the Legislative
Counsel‟s Digest for Assembly Bill 4X 1 denominates it as “Budget Act of 2009:
revisions,” and includes the legend “Appropriation: yes.” (Italics added.)16
On their face, Assembly Bill 4X 1 and the Legislative Counsel‟s Digest set forth
therein lead us to conclude that the Legislature contemplated that multiple budget items
identified in the measure constitute items of appropriation. We hold that the content and
structure of Assembly Bill 4X 1 support a determination that the provisions at issue are
items of appropriation subject to reduction or elimination by the Governor‟s use of his
line-item authority.
D.
After the Governor exercised his line-item authority, the Legislative Counsel
issued an opinion, cited by interveners, concluding that “an item or section of a bill that

16
The Legislative Counsel‟s Digest, as amended on July 23, 2009, states: “The
Budget Act of 2009 (Chapter 1 of the 2009-10 Third Extraordinary Session) made
appropriations for the support of state government for the 2009-10 fiscal year.

“This bill would make revisions in those appropriations for the 2009-10 fiscal
year. The bill would make specified reductions in certain appropriations.

“The California Constitution authorizes the Governor to declare a fiscal
emergency and to call the Legislature into special session for that purpose. The Governor
issued a proclamation declaring a fiscal emergency, and calling a special session for this
purpose, on July 1, 2009.

“This bill would state that it addresses the fiscal emergency declared by the
Governor by proclamation issued on July 1, 2009, pursuant to the California Constitution.

“This bill would declare that it is to take effect immediately as an urgency statute.
“Appropriation: yes.” (Legis. Counsel‟s Dig., Assem. Bill 4X 1.)
24

proposes only to make a reduction in an existing item of appropriation previously enacted
in the Budget Act of 2009 is not itself an item of appropriation” and therefore, “in
vetoing items of sections of [Assembly Bill 4X 1] that proposed only reductions to
existing appropriations enacted by the Budget Act of 2009, the Governor exceeded his
„line-item‟ veto authority.” (Ops. Cal. Legis. Counsel, No. 0920928 (Aug. 5, 2009)
Governor‟s Line-Item Veto Authority: Reductions to Existing Appropriations, pp. 1, 4.)17
Although “an opinion of the Legislative Counsel is entitled to respect, its weight
depends on the reasons given in its support.” (Santa Clara County Local Transportation
Authority v. Guardino (1995) 11 Cal.4th 220, 238.) Indeed, quite recently, in Kelly,
supra, 47 Cal.4th 1008, we found unpersuasive the analysis put forth by the Legislative
Counsel relating to the legislation at issue in that case. (Id., at p. 1043, fn. 60.) We come
to a similar conclusion in the present case.
Opinions of the Legislative Counsel ordinarily are “prepared to assist the
Legislature in its consideration of pending legislation” (California Assn. of Psychology
Providers v. Rank (1990) 51 Cal.3d 1, 17), and therefore such opinions often shed light
on legislative intent. Like the Legislative Counsel‟s opinion at issue in Kelly, however,
the opinion at issue in the present case was not prepared in order to assist in the

17
Similar to the arguments advanced by petitioners and interveners, the Legislative
Counsel‟s opinion concludes: “The legal effect of an item or section of a bill that solely
makes a reduction of a previously appropriated amount is not to grant authority to a state
officer to expend a specified sum, but to lessen that authority. Unlike an appropriation,
the reduction of an existing appropriation does not set aside moneys for payment of a
claim or make a new appropriation of moneys from the public treasury, nor does it add
additional amounts to funds already provided for by an existing appropriation or identify
a new purpose for which moneys may be expended. A state officer is not granted new
expenditure authority, nor is a state officer‟s expenditure authority extended in any way
by an item or section of a bill that solely makes a reduction of an existing appropriation.”
(Ops. Cal. Legis. Counsel, No. 0920928, supra, Governor‟s Line-Item Veto Authority:
Reductions to Existing Appropriations, at p. 4, fn. omitted.)
25

consideration of pending legislation — it was rendered, instead, after the legislation was
enacted, and it addressed possible future litigation arising from that legislation.18 Insofar
as the opinion expresses a view concerning the constitutionality of the Governor‟s
exercise of authority with regard to Assembly Bill 4X 1, it is entitled to no more weight
than the views of the parties. Legislative intent — that is, whether the Legislature
intended that the items at issue be subject to the Governor‟s power — is irrelevant to our
present inquiry focused upon the constitutional scope of that power.
E.
In the Court of Appeal, petitioners argued that the language employed by the
Legislature in Assembly Bill 4X 1, to effectuate reductions in prior appropriations,
differentiates between those provisions that “amended” sections of the 2009 Budget Act
and those provisions (here at issue) that merely “added” sections to that act. Petitioners
asserted in the court below that items in the former category are “arguably expose[d] . . .
to the [G]overnor‟s line-item power” but that “no such authority exists . . . with respect
to” to the latter category of items — those here at issue.
In response, the Court of Appeal observed: “In essence, petitioners argue that the
Legislature may do by indirection that which it cannot do directly, that is, it may insulate
certain items of appropriation from the Governor‟s line-item veto power by the language
used, whereas other items having the identical effect of reducing the sums appropriated in
the 2009 Budget Act would be subject to that power. This, the Legislature may not do.
(See Wood v. Riley, supra, 192 Cal. at pp. 304-305.) As amici curiae former Governors
observe: „If by simple wordsmithing the legislative branch can create an omnibus
spending bill limiting the Governor‟s oversight only to veto of the entire bill, then the

18
Moreover, as the Governor observes in his answer brief, the Legislative Counsel‟s
opinion ignores the multiple definitions of the phrase “item of appropriation” that we
recognized in Harbor, supra, 43 Cal.3d at page 1089.
26

budgetary process is reduced to a game of „chicken‟ daring a [G]overnor to bring state
government to a halt through a veto.‟ [¶] Whether identified in Assembly Bill 4X 1 as
amendments of, revisions to, or additions to the 2009 Budget Act, it is clear that every
provision of Assembly Bill 4X 1 changed a section of the 2009 Budget Act. . . .
Consequently, the sections that were „added‟ — like those that expressly „amended‟ the
2009 Budget Act — reenacted those provisions and were subject to the line-item veto or
reduction by the Governor. (See also People v. Western Fruit Growers (1943) 22 Cal.2d
494, 501.)”
In their briefing in this court, petitioners and interveners contend that the Court of
Appeal, in reaching its decision, incorrectly relied upon the “reenactment rule” of
article IV, section 9 of the California Constitution.19 The purpose of this rule, they argue,
is merely to “prevent the title of a subsequent act from being made a cloak or artifice to
distract attention from the substance of the act and to protect legislators and the public
from being entrapped by misleading titles . . . .” (Estate of Henry (1944) 64 Cal.App.2d
76, 82.)20
Petitioners and interveners contend that when the reenactment rule is considered
together with Government Code section 9605,21 the present effect of the rule is that, by

19
Article IV, section 9 of the California Constitution provides in its entirety: “A
statute shall embrace but one subject, which shall be expressed in its title. If a statute
embraces a subject not expressed in its title, only the part not expressed is void. A statute
may not be amended by reference to its title. A section of a statute may not be amended
unless the section is re-enacted as amended.” (Italics added.)
20
We agree that a purpose of Article IV, section 9 is to “make sure legislators are
not operating in the blind when they amend legislation, and to make sure the public can
become apprised of changes in the law.” (American Lung Assn. v. Wilson (1996) 51
Cal.App.4th 743, 749, citing Hellman v. Shoulters (1896) 114 Cal. 136, 152.)
21
Government Code section 9605 states in relevant part: “Where a section or part of
a statute is amended, it is not to be considered as having been repealed and reenacted in
the amended form. The portions which are not altered are to be considered as having
(Footnote continued on following page)
27

changing only the amount of the appropriation in the provisions of Assembly Bill 4X 1 at
issue, the Legislature did not reenact the corresponding items of appropriation contained
in the 2009 Budget Act but merely reduced the “amount” of those appropriations.
Petitioners further insist there exists “a distinction between the setting aside of an
amount, and the authorization to spend that amount . . . .”
We disagree. As we have explained, the purpose “of Government Code section
9605 is to avoid an implied repeal and reenactment of unchanged portions of an amended
statute, ensuring that the unchanged portion operates without interruption.” (In re
Lance W. (1985) 37 Cal.3d 873, 895, italics added.) As applied in this case, section 9605
simply makes clear that the changes made by Assembly Bill 4X 1 in July 2009 did not
impliedly repeal any authorization of funds contained in the 2009 Budget Act not
specifically affected by Assembly Bill 4X 1.
Moreover, the Legislature‟s allocation of funds — the setting aside of money for a
particular purpose — is fundamentally indivisible in concept from the designation of the
amount thereof. The act of setting aside funds acquires significance only in the context
of the designated amount set aside. The “spending authority” granted by a proposed
“item of appropriation” is the combination of a setting aside of a designated sum — and
no more — for a particular purpose. Petitioners do not, for example, contend that a
similar distinction existed between “the setting aside of an amount” and “the
authorization to spend” when the 2009 Budget Act originally was passed.
Accordingly, we conclude that the arguments advanced by petitioners and
interveners supply no basis upon which to question our conclusion that the provisions of

(Footnote continued from previous page)
been the law from the time they were enacted; the new provisions are to be considered as
having been enacted at the time of the amendment; and the omitted portions are to be
considered as having been repealed at the time of the amendment.”
28

Assembly Bill 4X 1 at issue in this case constitute items of appropriation subject to
reduction or elimination by the Governor‟s use of his line-item authority.22
V.

Interveners‟ contention that the amounts designated by the items of Assembly
Bill 4X 1 at issue should not be reducible by the Governor is based in part upon a
separation-of-powers theory, also advanced by amici curiae SEIU California State
Council et al. This claim is premised upon (1) the absence in California‟s Constitution of
explicit gubernatorial authority to increase or decrease the size of spending cuts made by
the Legislature in response to a declaration of fiscal emergency, and (2) language in
Harbor, supra, 43 Cal.3d 1078, emphasizing that, as interveners put it, “the power to
veto, reduce or eliminate is not the power to create or increase.” Specifically, interveners
cite our observations in Harbor that “[t]he word „veto‟ means „I forbid‟ in Latin” and that
“the effect of the veto [is] negative, frustrating an act without substituting anything in its
place.” (Id., at p. 1085.)
In the view of interveners, when undertaking the challenged line-item reductions,
“the Governor sought to use his power to increase what the Legislature had done. The
Legislature had made a policy determination regarding how much state spending had to
be cut in response to the fiscal crisis and where those spending cuts were to be made.
The Governor, however, disagreed with the Legislature‟s policy determinations. He
wanted to make more cuts in order to keep a larger budget reserve.” According to
interveners, the Governor‟s preference for a larger budget reserve is a policy
determination belonging to the legislative, not the executive, branch.

22
Having reached this conclusion, we need not, and do not, consider the “single
subject” issues (see Cal. Const., art. IV, § 9) discussed in the briefs filed in this court, and
addressed in the appellate court‟s decision below.
29

The determination whether the items in Assembly Bill 4X 1 at issue constitute
appropriations cannot be made by characterizing the Governor‟s use of line-item
authority as “increasing” the Legislature‟s reductions and then categorizing that act as
impermissibly affirmative or “creative.” Treating the exercise of line-item authority as
an increase in the reduction, rather than as a decrease in the appropriation is as arbitrary
as differentiating between the description of a glass of water as half full and a description
of the same vessel as half empty. By increasing the Legislature‟s reduction, the Governor
decreases the size of the appropriation. What matters is not whether the Governor‟s act is
seen as being affirmative or negative, but rather its purpose and practical effect.
The difference of opinion between the Legislature and the Governor underlying
these budget cuts was not whether the amount of particular items of appropriation
enacted in the 2009 Budget Act needed to be reduced, but the magnitude of the necessary
reductions. What mattered in the end were the amounts set aside for particular purposes;
the Legislature sought greater appropriations than did the Governor. Although the
Governor‟s exercise of line-item authority may be said to have “increased” the reductions
made by the Legislature as to the items at issue, the most significant effect of the
Governor‟s actions, and their purpose, was to further reduce the amounts set aside by the
Legislature. The Governor‟s wielding of line-item authority was therefore
quintessentially negative; it lowered the cap on the spending authority for specified
purposes, providing precisely the type of check on the Legislature intended by the
constitutional initiative that adopted the line-item provision, which empowered the
Governor “to reduce an appropriation to meet the financial condition of the treasury. . . .”
(Ballot Pamp., Gen. Elec. (Nov. 7, 1922) argument in favor of Prop. 12, p. 79.)
Interveners‟ separation-of-powers argument thus begs the question. True, the
Governor‟s challenged acts were legislative in nature and, “[a]s an executive officer, [the
Governor] is forbidden to exercise any legislative power or function except as . . . the
Constitution expressly provide[s].” (Lukens v. Nye, supra, 156 Cal. at p. 501, italics
30

added.) Thus, the question before us is not whether the gubernatorial act at issue was
legislative in nature, but whether it was constitutionally authorized. As we earlier
explained, the act undertaken by the Governor was authorized by the opening sentence of
article IV, section 10(e) of our Constitution: “The Governor may reduce or eliminate one
or more items of appropriation while approving other portions of a bill.” (Italics added.)
Similarly, as discussed above, we conclude there is no persuasive reason to hold
that the Governor is prevented from exercising line-item authority with respect to
changes that the Legislature has made to items of appropriation. As emphasized above,
the power to “reduce an appropriation to meet the financial condition of the treasury” was
bestowed upon the Governor by the people of California in 1922 through constitutional
amendment. When, as in the situation presented by the matter now before us, the
Legislature finds it necessary to change its appropriations in light of worsened fiscal
circumstances, the public‟s interest in fiscal responsibility is arguably even greater, and
there is no indication that those who drafted and enacted article IV, section 10(e) would
not have intended the Governor to maintain this same power over state expenditures
under these circumstances.
Interveners assert that the foregoing analysis would permit the Governor to
“eliminate” a reduction to a previously enacted appropriation, thereby allowing more
spending than the Legislature authorized — a result that, they maintain, would not
constitute use of the “veto” as a “negative” check on the Legislature, but the opposite.23
We need not address this issue or related issues, because they are not presented by the
case before us. We note, however, that the Governor‟s line-item power does not give him

23
This result also would have occurred had the Governor vetoed Assembly Bill 4X 1
in its entirety. Interveners, however, do not argue that the entire bill was not subject to
veto or that the exercise of such a veto would be an impermissibly creative act rather than
a permissibly negative one.
31

the last word. The Legislature retains the ability to override the Governor‟s reduction of
items of appropriation in the same manner as other bills, by separately reconsidering and
passing them by a two-thirds majority of each house. (Cal. Const., art. IV, § 10,
subds. (a), (e).)24

24
Petitioners and interveners also point to the defeat of Proposition 76 at the
November 8, 2005 Special Election, and the defeat of Proposition 1A in May 2009, as
evidence that the voters did not confer upon the Governor the line-item authority he
exercised here. Proposition 76 would have allowed the Governor unilaterally to make
spending reductions if the Legislature failed to enact legislation to deal with a fiscal
emergency. (Voter Information Guide, Special Elec. (Nov. 8, 2005) Prop. 76 [State
Spending and School Funding Limits].) Similarly, Proposition 1A would have allowed
the Governor unilaterally to make certain midyear reductions without legislative
approval. (Voter Information Guide, Special Elec. (May 19, 2009) Prop. 1A [State
Budget. Changes California Budget Process. Limits State Spending. Increases “Rainy
Day” Budget Stabilization Fund.].) These two propositions, which would have expanded
executive powers and permitted unilateral spending cuts by the Governor, are inapposite
to the issues presented in the case before us, which concern the Governor‟s exercise of
the long-established line-item authority. (See American Civil Rights Foundation v.
Berkeley Unified School Dist. (2009) 172 Cal.App.4th 207, 219, fn. 9 [denying a request
for judicial notice of ballot arguments regarding a later, failed initiative on the same
general topic as Prop. 209, and instead choosing to “focus our attention on the voters‟
intent in 1996, when they adopted Proposition 209”].)

Moreover, in this regard and generally, petitioners and interveners minimize the
significant role that article IV, section 10, subdivision (f) of the California Constitution
confers upon the Governor in the event of fiscal emergencies. As amici curiae former
California Governors point out, “the argument in support of Proposition 58 made clear
that the Governor‟s role under subdivision (f) was not that of a mere bystander, but a
principal player.” “Proposition 58 requires the Legislature to enact a balanced budget
and if circumstances change after they pass the budget, the Governor is required to call
them into special session to make mid-year changes to the budget . . . .” (Supplemental
Voter Information Guide, Primary Elec. (Mar. 2, 2004) rebuttal to argument against
Prop. 58, p. 15.) Especially in light of this 2004 amendment to the Constitution, we
discern no reason to conclude that the electorate ever has intended to prevent the
Governor from exercising the same power to reduce items of appropriation that he or she
possesses with regard to the regular budget process.
32

VI.
Article IV, section 10 (e) grants the Governor the limited legislative authority to
eliminate or reduce “items of appropriation.” For the reasons set forth in this opinion, we
conclude that the budget reductions here at issue were “items of appropriation” within the
meaning of that constitutional provision, and that therefore the Governor‟s exercise of
line-item authority to reduce those appropriations, while approving other portions of
Assembly Bill 4X 1, was consistent with his constitutional powers.
VII.

The judgment rendered by the Court of Appeal, denying the petition for writ of
mandate, is affirmed.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
*RYLAARSDAM, J.

* Associate Justice, Court of Appeal, Fourth Appellate District, Division Three, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
33

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion St. John‟s Well Child & Family Center v. Schwarzenegger __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 182 Cal.App.4th 590
Rehearing Granted

__________________________________________________________________________________

Opinion No. S181760
Date Filed: October 4, 2010

__________________________________________________________________________________

Court:
County:
Judge:
__________________________________________________________________________________

Counsel:
Kirkland & Ellis, R. Alexander Pilmer and Derek Milosavljevic for Petitioner St. John's Well Child and Family
Center.
Neighborhood Legal Services of Los Angeles County, Abby McClelland, Katherine E. Meiss, David Pallack and
Barbara Siegel for Petitioners Rosa Navarro and Lionso Guzman.
Disability Rights Advocates, Sidney Wolinsky, Katrina K. Corbit and Anna Levine for Petitioners Californians for
Disability Rights, California Foundation for Independent Living Centers, Nevada-Sierra Regional In-Home Support
Services Public Authority, Liane Yasumoto and Judith Smith.
Western Center on Law & Poverty, Richard A. Rothschild and Nu Usaha for Petitioners.
Miguel A. Marquez, Acting County Counsel (Santa Clara), Tamara A. Lange, Lead Deputy County Counsel, Juniper
Lesnik and Greta S. Hansen, Deputy County Counsel, for County of Santa Clara as Amicus Curiae on behalf of
Petitioners.
Rothner, Segall, Greenstone & Leheny, Anthony R. Segall; Altshuler Berzon, Scott A. Kronland and Danielle E.
Leonard for SEIU California State Council, United Domestic Workers and California United Homecare Workers as
Amici Curiae on behalf of Petitioners.
O'Melveny & Myers, Robert M. Schwartz, Robert C. Welsh, David A. Lash, Sandeep N. Solanki, Jordan P.
Raphael, Robert Silvers, Jessica A. Hoogs, Ashley Chalmers and Flora Vigo for Children Now, Valley Community
Clinic, Eisner Pediatric & Family Medical Center, The Saban Free Clinic, YWCA Monterey County, Westside
Family Health Center, Community Clinic Association of Los Angeles County and The Legal Aid Association of
California as Amici Curiae on behalf of Petitioners.
Paul, Hastings, Janofsky & Walker, Eve M. Coddon, Cameron W. Fox and Amanda A. Bollinger for Aids Project
Los Angeles as Amici Curiae on behalf of Petitioners.

Page 2 – S181760 - counsel continued
Reich, Adell & Cvitan, Laurence S. Zakson, William Y. Sheh and Aaron G. Lawrence for Los Angeles County
Democratic Central Committee as Amici Curiae on behalf of Petitioners.
Martin A. Weiss for Riverside County Democratic Central Committee as Amici Curiae on behalf of Petitioners.
Edmund G. Brown Jr., Attorney General, Jonathan K. Renner, Assistant Attorney General, Zackery P. Morazzini
and Ross C. Moody, Deputy Attorneys General, for Respondents.
Neilsen, Merksamer, Parrinello, Mueller & Naylor, Steven A. Merksamer, Richard D. Martland and Kurt Oneto for
George Deukmejian, Pete Wilson, Gray Davis, California Chamber of Commerce, California Taxpayers'
Association and California Business Roundtable as Amici Curiae on behalf of Respondents.
Diane F. Boyer-Vine, Jeffrey A. DeLand; Remcho, Johansen & Purcell, Robin B. Johansen, James C. Harrison,
Thomas A. Willis, Karen Getman and Margaret R. Prinzing for Interveners.

Counsel who argued in Supreme Court (not intended for publication with opinion):
Derek Milosavljevic
Kirkland & Ellis
333 South Hope Street, 29th Floor
Los Angeles, CA 90071
(213) 680-8400

Ross C. Moody
Deputy Attorney General
455 Golden gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1376

Robin B. Johansen
Remcho, Johansen & Purcell
201 Dolores Avenue
San Leandro, CA 94577
(510) 346-6200

Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issue: Does the Governor's constitutional line item veto power "to reduce or eliminate one or more items of appropriation" (Cal. Const., art. IV, ? 10, subd. (e)) apply to provisions in a mid-year emergency bill that reduce appropriation amounts of a previously enacted budget bill?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 10/04/2010	50 Cal. 4th 960, 239 P.3d 651, 116 Cal. Rptr. 3d 195	S181760	Review - Civil Original Proceeding	opinion issued

Opinion Authors
Opinion	Chief Justice Ronald M. George

Disposition
Oct 4 2010	Opinion: Affirmed

Dockets
Apr 12 2010	Petition for review filed Petitioner: St. John's Well Child & Family CenterAttorney: Derek Michael Milosavljevic
Apr 12 2010	Record requested
Apr 12 2010	2nd petition for review filed Intervener: Steinberg, DarrellAttorney: Robin Bradle Johansen Intervener: Bass, KarenAttorney: Robin Bradle Johansen
Apr 12 2010	Received:   "Motion to Substitute Party" from counsel for interveners; by Robin B. Johansen.
Apr 13 2010	Filed:   "Motion to Substitute Party" filed by interveners. *with permission*
Apr 30 2010	Request for depublication (petition for review pending) Intervener: Steinberg, DarrellAttorney: Robin Bradle Johansen
May 3 2010	Answer to petition for review filed Respondent: Schwarzenegger, ArnoldAttorney: Ross Charles Moody   (answer to both petitions)
May 12 2010	Reply to answer to petition filed Intervener: Steinberg, DarrellAttorney: Robin Bradle Johansen
May 21 2010	Received Court of Appeal record   One box
Jun 9 2010	Petition for review granted   The motion of interveners Darrell Steinberg, et al., to substitute John Perez, in his official capacity as Speaker of the California Assembly, as an intervener in place of Karen Bass, in her official capacity as former Speaker of the California Assembly, is granted. The motion of Karen Bass to withdraw is granted. The petitions for review are granted. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jun 17 2010	Order filed   Time for briefing in this matter, in which review was granted on June 9, 2010, is shortened pursuant to Rules of Court, rule 8.68 as follows: Petitioners and Interveners are directed to serve and file opening briefs on or before June 30, 2010. Respondents are directed to serve and file an answer brief on or before July 7, 2010. Petitioners and Interveners are directed to serve and file reply briefs on or before July 14, 2010.
Jun 30 2010	Opening brief on the merits filed Petitioner: St. John's Well Child & Family CenterAttorney: Derek Michael Milosavljevic
Jun 30 2010	Opening brief on the merits filed Intervener: Steinberg, DarrellAttorney: Robin Bradle Johansen
Jul 7 2010	Answer brief on the merits filed Respondent: Schwarzenegger, ArnoldAttorney: Ross Charles Moody
Jul 8 2010	Received:   from counsel for amicus curiae, Govs. George Deukmejian, Pete Wilson and Gray Davis, application to file amicus curiae letter.
Jul 9 2010	Filed:   by counsel for Govs. George Deukmejian, Pete Wilson, and Gray Davis, The California Chamber of Commerce, The California Taxpayers; Association and the California Business Roundtable, amicus curiae letter in support of repondents Arnold Schwarzenegger and John Chiang.
Jul 14 2010	Reply brief filed (case not yet fully briefed) Intervener: Steinberg, DarrellAttorney: Robin Bradle Johansen
Jul 14 2010	Reply brief filed (case fully briefed) Petitioner: St. John's Well Child & Family CenterAttorney: Derek Michael Milosavljevic
Jul 20 2010	Filed:   Response to the George Deukmejian, et al., amicus letter filed July 9, 2010, from Darrell Steinberg, et al., intervenors; by Karen Getman, counsel.
Jul 23 2010	Justice pro tempore assigned   Hon. William F. Rylaarsdam Fourth Appellate District, Div. Three (Werdegar, J., recused)
Jul 28 2010	Application to file amicus curiae brief filed   Children Now, Valley Community Clinic, Eisner Pediatric & Family Medical Center, Saban Free Clinic, Westdie Family Health Center, Community Clinic Association of Los Angeles County, and Legal Aid Association of California, request permission to file amicus curiae brief in support of petitioners; Robert C. Welsh, counsel.
Jul 28 2010	Permission to file amicus curiae brief granted   The application of Children Now, Valley Community Clinic, Eisner Pediatric & Family Medical Center, Saban Free Clinic, Westside Family Health Center, Community Clinic Association of Los Angeles County and Legal Aid Association of California for permission to file an amicus curiae brief in support of petitioners is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jul 28 2010	Amicus curiae brief filed Amicus curiae: Children NowAttorney: Robert C. Welsh Amicus curiae: Valley Community ClinicAttorney: Robert C. Welsh Amicus curiae: Eisner Pediatric & Family Medical CenterAttorney: Robert C. Welsh Amicus curiae: Saban Free ClinicAttorney: Robert C. Welsh Amicus curiae: Westside Family Health CenterAttorney: Robert C. Welsh Amicus curiae: Community Clinic Association of Los Angeles CountyAttorney: Robert C. Welsh Amicus curiae: Legal Aid Association of CaliforniaAttorney: Robert C. Welsh   in support of petitioners.
Aug 2 2010	Case ordered on calendar   To be argued Wednesday, September 8, 2010, at 9:00 a.m. in San Francisco.
Aug 3 2010	Order filed   For purposes of oral argument, Darrell Steinberg, et al., interveners, are deemed to be petitioners along with St. John's Well Child and Family Center, et al. The court has allocated 90 minutes for oral argument in this matter, divided as follows: Petitioners (including interveners) will be allocated a total of 45 minutes, including rebuttal. Counsel for the Governor, respondent, will be allocated a total of 45 minutes. On or before August 27, 2010, petitioners and interveners will serve and file a joint letter informing the court of (1) the order in which counsel will present oral argument, (2) the amount of time each counsel will argue, and (3) the issue or issues each counsel intends to address. (Each counsel who argues will be allocated no less than 10 minutes.)
Aug 5 2010	Request for extended media coverage filed   By The California Channel.
Aug 5 2010	Request for extended media coverage granted   The request for extended media coverage, filed by The California Channel on August 5, 2010, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Aug 25 2010	Order filed   The request of counsel for petitioners and interveners in the above-referenced cause to allow separate counsel to argue on their behalf at oral argument is hereby granted. The request of petitioners and interveners to allocate to St. John's Well Child & Family Center et al. 23 minutes and Steinberg et al. 22 minutes of their joint 45-minute allotted time for oral argument is granted.
Aug 27 2010	Filed:   letter dated August 26, 2010, from petitioners and interveners, in response to the Court's order of August 3, 2010; by Robin B. Johansen, counsel.
Sep 8 2010	Cause argued and submitted
Oct 1 2010	Notice of forthcoming opinion posted   To be filed Monday, October 4, 2010 at 10 a.m.
Oct 4 2010	Opinion filed: Judgment affirmed in full   The judgment rendered by the Court of Appeal, denying the petition for writ of mandate, is affirmed. Majority Opinion by George, C.J. -- joined by Kennard, Baxter, Chin, Moreno, Corrigan, and Rylaarsdam*, JJ. *Associate Justice, Court of Appeal, Fourth Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Briefs
Jun 30 2010	Opening brief on the merits filed Petitioner: St. John's Well Child & Family CenterAttorney: Derek Michael Milosavljevic
Jul 14 2010	Reply brief filed (case fully briefed) Petitioner: St. John's Well Child & Family CenterAttorney: Derek Michael Milosavljevic
Jun 30 2010	Opening brief on the merits filed Intervener: Steinberg, DarrellAttorney: Robin Bradle Johansen
Jul 7 2010	Answer brief on the merits filed Respondent: Schwarzenegger, ArnoldAttorney: Ross Charles Moody
Jul 14 2010	Reply brief filed (case not yet fully briefed) Intervener: Steinberg, DarrellAttorney: Robin Bradle Johansen
Jul 28 2010	Amicus curiae brief filed Amicus curiae: Children NowAttorney: Robert C. Welsh Amicus curiae: Valley Community ClinicAttorney: Robert C. Welsh Amicus curiae: Eisner Pediatric & Family Medical CenterAttorney: Robert C. Welsh Amicus curiae: Saban Free ClinicAttorney: Robert C. Welsh Amicus curiae: Westside Family Health CenterAttorney: Robert C. Welsh Amicus curiae: Community Clinic Association of Los Angeles CountyAttorney: Robert C. Welsh Amicus curiae: Legal Aid Association of CaliforniaAttorney: Robert C. Welsh

Brief Downloads
petitioners-st-johns-well-child-and-family-center-et-al-petition-for-review-1.pdf (802816 bytes) - Petitioners St. John's Well Child & Family Center et al. Petition for Review
interveners-darrell-steinberg-and-john-a-perez-petition-for-review-2.pdf (698368 bytes) - Interveners Steinberg & Perez Petition for Review
respondent-arnold-schwarzenegger-answer-to-petitiions-for-review-3.pdf (119808 bytes) - Respondent Schwarzenegger Answer to Petitions for Review
interveners-darrell-steinberg-and-john-a-perez-reply-to-answer-to-petition-for-review-4.pdf (109568 bytes) - Interveners Steinberg & Perez Reply to Answer to Petition for Review
petitioners-st-johns-well-child-and-family-center-et-al-opening-brief-on-the-merits-5.pdf (472064 bytes) - Petitioners St. John's et al. Opening Brief on the Merits
interveners-darrell-steinberg-and-john-a-perez-opening-brief-on-the-merits-6.pdf (484352 bytes) - Interveners Steinberg & Perez Opening Brief on the Merits
respondent-arnold-schwarzenegger-answer-brief-on-the-merits-7.pdf (399127 bytes) - Respondent Schwarzenegger Answer Brief on the Merits
petitioners-st-johns-well-child-and-family-center-et-al-reply-brief-on-the-merits-9.pdf (273408 bytes) - Petitioners St. John's et al. Reply Brief on the Merits
interveners-darrell-steinberg-and-john-a-perez-reply-brief-on-the-merits-8.pdf (329728 bytes) - Interveners Steinberg & Perez Reply Brief on the Merits

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jan 3, 2011 Annotated by pkorzynski

Note: page references (“p. #”) correspond to Scocal version of opinion, unless otherwise noted. Facts On February 20, 2009, California Governor Arnold Schwarzenegger signed into law the Budget Act of 2009, thereby appropriating state funds for the 2009-10 fiscal year. In the months following its passage, the Act’s revenue assumptions proved “far too optimistic,” p. 6; indeed, the state’s economy worsened to the point that the Governor declared a “fiscal crisis,” id., pursuant to article IV, sec. 10(f) of the California Constitution, and the Legislature assembled in a special session to address the financial emergency. The Legislature passed a revised 2009 budget that sought to address $24 billion in budget shortfalls and included, among other things, $15.6 billion in cuts. On July 28, 2009, the Governor exercised his line-item veto authority under article IV, sec. 10(e) of the California Constitution to reduce or eliminate items in the Legislature’s revised 2009 budget and signed the budget bill into law. The Governor’s changes amounted to an additional $488 million in spending cuts and were intended to increase the state’s cash reserves and to reduce its structural deficit. Procedural History Petitioners St. John’s Well Child and Family Center et al. and Interveners Darrell Steinberg, President pro Tempore of the California State Senate, and John Pérez, Speaker of the California Assembly, sought original relief in the Court of Appeal by seeking a writ of mandate to enjoin the state Controller from enforcing the Governor’s budget amendments; specifically, those amendments reducing appropriations in sections 568 and 570-575 of the Legislature’s revised budget. The Court of Appeal exercised original jurisdiction in light of the “importance and urgency,” p. 4, of the budget matter presented and denied the petition for a writ of mandate. Petitioners and Interveners sought review in the Supreme Court. Issues Whether the Governor exceeded his line-item veto authority by further reducing funding levels set out in midyear emergency reductions the Legislature had made to the Budget Act of 2009 in a special session called during a fiscal crisis? This was an issue of first impression. Holding The Court affirmed the denial of a writ of mandate on the grounds that the budget items that the Governor reduced were “items of appropriation” falling under his Constitutional line-item veto authority since they all allocated specific sums of public money that had been designated for a state purpose. Analysis The Court first borrowed heavily from Harbor v. Deukmejian to set out the framework for the Governor’s veto and line-item veto power under the California Constitution. Though the Governor may not exercise legislative power, the Constitution does grant him or her the power to veto legislation, permitting him or her to return legislation, along with objections, to its “house of origin” where it will become law only with a 2/3 rollcall vote of each house. Art. IV, sec. 10(a). The veto power as to appropriations, or the so-called line-item veto, is ‘“more extensive,”’ p. 10 (quoting Harbor at p. 1084), as the Governor may “reduce or eliminate one or more items of appropriation while approving other portions of a bill.” Art. IV, sec. 10(e). Items so affected may be passed over the Governor’s line-item veto in the same way as vetoed bills. The scope of the Governor’s veto power is such that he or she may either veto an entire bill or only that part of a bill that is an “item of appropriation.” p. 11 (quoting Harbor at p. 1084). The rationale behind the line-item veto, as set forth in the 1922 constitutional ballot initiative through which it was added to the Constitution, is to permit the Governor to adjust an appropriation to ‘“meet the financial condition of the treasury,”’ p. 12 (quoting the Ballot initiative) and avoid a wholesale veto of an otherwise ‘“meritorious”’ act. Id. Under this framework, the Court determined that the dispositive issue was whether the seven sections of the Legislature’s revised budget that the Governor reduced were “items of appropriation” that the Governor could exercise his line-item veto over. The Court looked to Wood v. Riley (a 1922 California Supreme Court decision following the ballot initiative) and again to Harbor to lay out the considerations of what constitutes an item of appropriation. First, under Wood, an item of appropriation does not necessarily have to draw additional funds from the state treasury. In Wood, the Governor was allowed to line-item veto a set-aside proviso that would have required the state Controller to transfer to the state Department of Education, as an added appropriation for the department, 1 percent of the appropriations that had been set aside for the support of several schools. Though it drew no new funds from the state treasury, the proviso was nevertheless a distinct item of appropriation of a specific amount of money for a purpose of state government. What is more, it had the practical effect of being a new appropriation of funds for a state department, as it provided additional funds for the state Department of Education. Second, under Harbor, an item of appropriation may not be a substantive measure that, while sometimes requiring expenditure of state funds, merely directs government departments to act in certain ways concerning certain matters. In Harbor, the Court rejected the Governor’s use of the line-item veto over a provision that would have changed the timing as to when certain state benefits would be paid. The Court rejected the Governor’s claim that the timing provision, which was contained in a trailer bill to the bill funding the entire benefits program, was part of the same indivisible measure. The timing provision had nothing to do with the amount appropriated for benefit payment; the legislature simply chose to fund the benefits program through a lump sum appropriation in the prior bill and provided, through a subsequent general bill, for timing of payments as a substantive measure to guide state agencies. Moreover, the Court held that even if the placement of the timing provision was intended to avoid the Governor’s line-item veto, the Governor does not have the power to veto parts of a general, substantive bill to thwart attempts to avoid his line-item veto power, and the timing provision at issue in no way set aside a sum of public money. Under these two cases, the Court here held that the seven budget reductions at issue were items of appropriation as they were all distinct items concerning specific sums of money that were designated for specific state purposes and that set aside public money. The Court rejected the Petitioner and Interveners’ argument that only an increase in spending authority by the Legislature can be an appropriation subject to veto. Though Harbor and Wood dealt with scenarios where the Legislature had increased spending authority, the Court concluded that whether increased or decreased, spending authority fundamentally remains spending authority. There would be, in other words, no substantive difference between exercising the line-item veto over the Legislature’s initial funding of an item and its subsequent reduction of that same item. That aside, the Petitioner and Interveners’ view would thwart the 1922 rationale behind the veto as it would allow the Legislature to nullify the Governor’s power by making selective reductions in appropriations, forcing him or her to veto entire bills rather than adjust particular appropriations. The Court also rejected the Interveners’ argument the Governor had only one chance to reduce the items in question through line-item veto: when they were first passed in February. The Court noted no difference between the Legislature’s February action and July action that deprived the Governor of constitutional authority to exercise his veto power. The Court found further support for its view that the items at issue are appropriations in the structure and content of the July budget revision itself, which throughout its text makes references to changes, both increases and decreases, in appropriations made by the legislation. The Court also addressed the status of opinions of legislative counsel. The Interveners had relied on an opinion prepared by the Legislative Counsel that affirmed their view that only increases in spending authority may be subject to the line-item veto. The Court noted that such opinions carry the most weight in shedding light on legislative intent when issued while legislation at issue was pending; here, the opinion addressed the constitutionality of gubernatorial action with regard to already passed legislation and thus had no greater weight than the views of the parties themselves. Petitioners and Interveners additionally argued, in the Court of Appeal, that those items labeled as having “amended” sections of the February budget act were subject to line-item veto while those sections, at issue here, that were labeled as having only “added” sections to the February act were not. The Court of Appeal, under Wood, held that whatever the label on the items, their practical effect is that of appropriation; the Court here affirmed this reasoning and rejected Petitioner and Interveners’ argument that the Court of Appeal erred because California’s reenactment rule (in Article IV, section 9 of the California Constitution) and California Government Code section 9605 together mean that the Legislature did not reenact budget items in the July revision but instead only changed the amounts appropriated in the February budget, such that there was no new appropriation to line-item veto in the July revision. Section 9605, the Court noted, requires only that all those provisions of the February budget not revised by the July bill operated and continue to operate unaffected by the July bill. Section 9605 does not, as the Petitioners and Interveners’ argument suggests, create a distinction between granting spending authority and setting aside a specific amount. The Court emphasized that an item of appropriation both grants spending authority and sets aside, in some way, a specific amount. Lastly, the Court rejected the Interveners’ argument that the Governor violated the separation of powers by increasing the spending the cuts the Legislature had already made. The argument was based on the theory that the Governor could not do this because (1) California’s Constitution contains no explicit grant of gubernatorial authority to increase or decrease the Legislature’s emergency spending cuts and (2) the line-item veto power is only the power to reduce or eliminate; the Governor’s increase of spending cuts and preference for a larger budget reserve were, therefore, policy determinations for the Legislature, not the executive branch. The Court rejected this argument since (1) the Governor’s action was quintessentially negative since it lowered spending caps, thereby falling squarely within the original rationale for the line-item veto and (2) the issue is whether the action was constitutional, not whether it was legislative in nature. The constitutional determination turned on considering whether the action was over an item of appropriation. Relevant Cases Harbor v. Deukmejian (1987) 43 Cal.3d 1078 Wood v. Riley (1923) 192 Cal. 293 (Opinion available in this database) Tags Line-item veto, veto, budget revision, fiscal crisis, budget shortfall, executive authority, appropriations, item of appropriation, legislative counsel, reenactment rule, California Government Code Section 9605, spending authority, California Constitution Article IV By Piotr Korzynski

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