Ballot vs. the Bench -- Why Sacramento Stumbles

Here is why it is nearly impossible to fix the state budget.

This story starts in December 2008. Facing a $42 billion budget shortfall, Gov. Arnold Schwarzenegger issued an executive order to create two furlough days per month for the state's 238,000 employees. (Be it noted that Schwarzenegger essentially has two tools — furloughs and layoffs — that he can use unilaterally to cut spending.) In July, Schwarzenegger added a third day. The Legislature passed budgets with the Schwarzenegger furloughs.

Of course, public employee unions have challenged the furloughs, which is their right. State employees have had to endure a painful 14 percent pay cut.

Here's the problem. State employee unions have filed not one, but at least 25 lawsuits against the furloughs.

Early on, Sacramento Superior Court Judge Patrick Marlette ruled that the governor had the authority to impose temporary furloughs.

No worries; labor groups filed suits in different courts presenting various arguments against the furloughs. They eventually found judges who ruled in their favor. Some might call this "judge shopping."

SEIU attorney Felix De La Torre disagrees. "If there is any forum-shopping happening," he said, "it probably is from the governor's office" trying to redirect cases to Marlette.

De La Torre also argued that a number of these furloughs "make no sense." Some needlessly hurt employees not paid through the state's General Fund. Agencies like the Employment Development Department need more people, not fewer. And: "You cannot separate a furlough from a reduction in services."

Apparently, Alameda County Superior Court Judge Frank Roesch agreed. In December, Roesch declared that furloughs for some 65,000 employees, whose departments are financed out side the General Fund, violate a law that sets the state employees' workweek at 40 hours. He issued an order last month to end Furlough Fridays for those workers.

An appellate judge stayed the stay — so furloughs are still happening.

Meanwhile, the legal bills mount. Department of Personnel Administration of spokesperson Lynelle Jolley figures the state has spent $590,000 thus far on outside attorneys — and that does not include the court costs for processing this bounty of litigation.

Thus, Schwarzenegger asked the California Supreme Court to consolidate seven of the lawsuits and rule on them promptly.

Even though the furloughs in question are scheduled to end June 30, the court should step in, as California cannot afford this uncertainty. For one thing, Roesch also has ruled that the state owes back pay — some $600 million — to the 65,000 employees. Should the state's big bench rule against all the furloughs, the state could be forced to pay out about $3 billion, according to Schwarzenegger spokeswoman Rachel Arrezola.

As a taxpayer, I hope that when these cases are settled, the bench does not overrule the furloughs. But if the court is going to do so, better sooner than later, given that Sacramento will have to find other means to balance the budget, and fill the current $20 billion shortfall.

The money will have to come from somewhere.

Think higher taxes. An SEIU brief berates "the governor's unreasonable insistence to avoid tax increases to pay the judgment and to keep the state services intact."

Do you get the distinct feeling that the unions are arguing that, while the California public may be subject to the laws of supply and demand, state workers are not and the taxpaying public better get used to it?

Indeed, the SEIU brief argues that, should the governor lay off employees, "the layoffs themselves would be subject to an injunction and back wages" as layoffs themselves should be considered an act of retaliation, for which — oh, joy — they can sue all over again.

In short, whatever Sacramento does to cut spending, big labor will turn into the subject of lengthy litigation — with federal courts acting as wild cards that order do-over budgets by fiat.

De La Torre was passionate in arguing that if workers' rights are violated, they are entitled to a remedy. But his line of argument suggests that as agents of the government, state employees have rights — no pay cuts or layoffs — that the taxpaying public does not have.

The only right you have, serf, is to pay for it.

E-mail Debra J. Saunders at dsaunders@sfchronicle.com. To find out more about Debra J. Saunders, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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