POWERS v. CITY OF RICHMOND (1994)

Donna R. Powers and James Cheshareck, Sr., sought a writ of mandate from the Contra Costa County Superior Court to compel the City of Richmond [Richmond] to provide them with certain public agency financial records.   Richmond, through its finance director, had provided access to a computer printout of the city's check register but refused to furnish reports of expenditures in specific requested categories.   Powers and Cheshareck appeal the denial of their petition for writ of mandate.

Richmond has moved to dismiss the appeal, claiming it is barred by Government Code section 6259, subdivision (c).¹  Powers and Cheshareck contend that section's limitation on review abridges their constitutional right to appeal.   We agree with Richmond that “appellate jurisdiction” provided by the Constitution does not confer a right to “appeal.”   It does not prevent the Legislature from limiting appellate review to an extraordinary writ.   Powers and Cheshareck exhausted their only avenue of review when we previously denied their writ petition and the California Supreme Court denied review.   We do not reach the merits of the appeal because we grant Richmond's motion to dismiss.

Facts and Procedures

On October 2, 1991, Powers and Cheshareck filed a petition for writ of mandate in Contra Costa County Superior Court under the Public Records Act (§ 6250 et seq.) to compel Richmond to release public records.   They sought records of all money spent by the Richmond City Manager's office, mayor's office, and city council under certain fund codes.   They also sought records of salary and other benefits paid to the mayor and city council members, names of consultants paid by Richmond, and several other specific records.   In support of their petition, they asserted that Richmond could provide the requested reports by a simple computer command and had previously provided similar reports to them upon request.   In response to their most recent requests, Richmond provided them access to a copy of the “check register,” a document providing a “seriatim listing of all checks written by the City of Richmond during the relevant time period.”   Powers and Cheshareck contended the slight burden on Richmond did not warrant denial of more convenient access to the information they sought.

Responding to the petition, Richmond asserted Powers and Cheshareck were asking Richmond to create records not currently in existence.   Richmond argued that, pursuant to section 6256, the public agency was authorized to determine the form of computer data provided to the public.   Richmond supported its argument with a declaration from Jay Goldstone, director of finance, stating that preparing a report in the form requested “would take some time and that all of the information [ ] requested could be found in the materials that the City would provide.”   The declaration did not quantify the burden Powers's and Cheshareck's requests would have imposed on Richmond.   Another declaration submitted by Richmond indicated Richmond was “receiving too many requests for information” and that such requests were “time-consuming.”

After hearing, the superior court denied the petition for writ of mandate.   In a memorandum of decision, the court concluded section 6256 allows the agency to determine the form in which to provide computer data.   Thus, the agency has discretion whether to prepare and print a particular report.   The court found no abuse of discretion because:  (1) the information was available to Powers and Cheshareck if they had the patience to locate it, and (2) although it might have been “simple enough for [Richmond] to access the computer this time [ ] the next time it might be more onerous.   So the appropriate rule of law is that computerized information is available to the public when routinely computed and printed out by the agency.   Information that exists already in a non-computer document that also exists as raw data in a computer need not be furnished to the public under Govt.Code § 6256 by operating the computer.”

Powers and Cheshareck filed timely notice of a “protective appeal.”   They described it as protective because they previously filed a petition to this court for a writ of mandate or certiorari under section 6259, subdivision (c), challenging the same superior court order.

In that earlier proceeding, we requested opposition to the writ petition, including answers to the following questions:  “(1) Does [Government] Code section 6256 provide unbridled discretion in the selection of form?  (2) What criteria should the agency use in deciding how to format a computer report?  (3) Should the agency take into consideration what format will be easier for the person seeking the information, or only the difficulty or expense in producing the report?  (4) Is the Public Records Act satisfied by production of data in the least manageable form when simple procedures would make it easily manageable?  (5) Was denial of access justified by the burden and expense to the agency?  (6) If, as the superior court suggested, access this time might have been simple, could the agency properly deny access because next time it might be onerous?”   After examining the opposition, we denied the petition.   The California Supreme Court denied review.

Motion to Dismiss

Section 6259, subdivision (c) provides in part:  “In an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ.”

Richmond moves to dismiss the appeal on the ground that the superior court's judgment is not appealable.   Powers and Cheshareck respond that section 6259, subdivision (c)'s preclusion of appeal violates article VI, section 11 of the California Constitution.

Article VI, section 11 of the California Constitution provides, in part:  “The Supreme Court has appellate jurisdiction when judgment of death has been pronounced.   With that exception courts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute.  [¶] Superior courts have appellate jurisdiction in causes prescribed by statute that arise in municipal and justice courts in their counties.”  Article VI, section 10, gives the Supreme Court, Courts of Appeal, and superior courts original jurisdiction in habeas corpus proceedings and in proceedings for extraordinary relief “in the nature of mandamus, certiorari, and prohibition.”

This motion turns on whether investing the Courts of Appeal with “appellate jurisdiction” provides a right to “appeal” or only permits appellate review in the mode specified by the Legislature.   If it provides a right to appeal, the motion fails.   If, instead, it provides jurisdiction to review by appeal or writ, as specified by the Legislature, we must grant the motion to dismiss.

At first reading, article VI, section 11, appears to divide the appellate workload among three courts, but not necessarily to create a right to appeal particular matters.   However, Powers and Cheshareck contend In re Sutter–Butte By–Pass Assessment (1923) 190 Cal. 532, 213 P. 974 (hereafter Sutter–Butte ), which interpreted section 11's predecessor, compels the conclusion that section 11 created a right to appeal a writ judgment of the superior court.

In 1919, the Legislature authorized the Sacramento and San Joaquin Drainage District to issue bonds and to assess property to retire the bonds.   It also established a judicial proceeding under which three judges sitting in the most affected county would determine the validity of the assessment.   Under the same statute, the decision of a majority of that court was to be “final and conclusive, and ․ no appeal from the judgment given and made by said court shall be had.”  (Id., p. 535, 213 P. 974.)   The Sutter–Butte court held the provision contravened the constitutional right of appeal.   The court found the right to appeal in article VI, section 4, the predecessor to section 11.  (Id., p. 536, 213 P. 974.)  Article VI, section 4, provided for “appellate jurisdiction on appeal from the Superior Courts in all cases in equity ․;   also, in all cases at law which involve the ․ legality of any tax, ․ [or] assessment, ․”

Sutter–Butte has been mentioned in passing in several opinions (see, e.g., People v. Brown (1993) 6 Cal. 4th 322, 334, fn. 9, 24 Cal.Rptr.2d 710, 862 P.2d 710;  Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728, 192 P.2d 916;  Byers v. Smith (1935) 4 Cal.2d 209, 214, 47 P.2d 705), but primarily has lain dormant since decided.   During this time, the California Supreme Court has repeatedly stated that the right to appeal is statutory and a judgment or order is not appealable unless it is expressly made so by statute (see, e.g., People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709, 135 Cal.Rptr. 392, 557 P.2d 976;  People v. Valenti (1957) 49 Cal.2d 199, 204, 316 P.2d 633;  overruled on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641;  Modern Barber Col. v. Cal. Emp. Stab. Com., supra, 31 Cal.2d at p. 728, 192 P.2d 916;  Superior Wheeler C. Corp. v. Superior Court (1928) 203 Cal. 384, 386, 264 P. 488).

Sutter–Butte is distinguishable.   The Legislature here has not altogether removed appellate jurisdiction established by the Constitution, as it did in Sutter–Butte.   It has only prescribed a mode of review by the appellate courts.   We examine the meaning of the constitutional provision to determine whether the Legislature had the authority to do so.

The 1849 Constitution

Tracing the history of article VI, section 11, we turn first to article VI, section 4 of the 1849 Constitution.   That section gave the Supreme Court “appellate jurisdiction” in all disputes exceeding $200, matters questioning the legality of any tax, toll, impost or municipal fine, and criminal cases involving felonies or questions of law.   The same provision supplied the Supreme Court with power to issue writs of habeas corpus and “all other writs and process necessary to the exercise of their appellate jurisdiction.”

The original Constitution did not define “appellate jurisdiction.”   However, a decision of the California Supreme Court during its first term shows clearly that “appellate jurisdiction” was not limited to review by appeal, but included review by an appropriate writ.   In The People v. Turner (1850) 1 Cal. 143 (hereafter Turner), criticized on other grounds in Sipper v. Urban (1943) 22 Cal.2d 138, 152, 137 P.2d 425 (conc. opn. of Schauer, J.), the court issued a peremptory writ of mandamus to vacate a trial court order expelling an attorney from the bar for contemptuous behavior.  Turner first considered whether it had the power to issue a writ of mandamus to the trial court.   Mandamus was authorized by statute, but the Turner court considered whether the statute was consistent with the powers vested by the Constitution.  (Id., at pp. 144–145.)   After reviewing early United States Supreme Court decisions, the Turner court concluded it could exercise “appellate jurisdiction ․ by means of the writ of mandamus.”  (At p. 148.)   The court distinguished between its original and appellate jurisdictions and concluded mandamus issued to an inferior court was a proper exercise of appellate jurisdiction.  (Id., at pp. 146–149.)

Later the same year, the Supreme Court alluded to the Legislature's authority to determine how the court would exercise its appellate jurisdiction.   In White v. Lighthall (1850) 1 Cal. 347, a litigant sought certiorari to remove a case from the county court to the Supreme Court.   At that time, criminal matters not otherwise provided for and disputes involving more than $200 were within the jurisdiction of district courts, to be established when the Legislature divided the state into districts.  (Cal. Const. of 1849, art. VI, §§ 5 and 6.)   In each of the organized counties, one county judge was to be elected to hold county court and perform the duties of surrogate or probate judge.   The county court would have jurisdiction over some criminal matters and appellate jurisdiction in cases arising in justices' courts, but would have original civil jurisdiction only in special cases prescribed by the Legislature.  (Id., §§ 8, 9 and 14.)

White held it had no jurisdiction over the matter, but explained:  “The supreme court is strictly an appellate court, having no original jurisdiction.   Its appellate jurisdiction extends only to those cases in which the legislature authorizes it to entertain appeals.   The legislature has conferred upon us no power to review judgments of the county court, on appeal, or in any other way.   It is true that we may issue writs of certiorari, but only to courts from whose judgments an appeal may be taken․   The constitution is sufficiently broad to authorize the legislature to make provisions for such a case, but they have not prescribed the quo modo in which an appeal may be taken, and we have no power to enact laws.”  (Id., at p. 348.)

These decisions demonstrate that during its earliest days, the California Supreme Court interpreted “appellate jurisdiction” broadly to mean jurisdiction to review the actions of an inferior tribunal, not restrictively to specify appeal as the mode of appellate review.   Later decisions by the same court injected some confusion.   We examine some of those later opinions and conclude the court has not overruled its earliest interpretation.

Haight v. Gay (1857) 8 Cal. 297, 300, did not cite these earlier decisions, but carried forth the suggestion that “appellate jurisdiction” could be exercised either by appeal or writ of error.   The court explained:  “The appellate power of the Supreme Court is given by the fourth section of the sixth article of the Constitution, which expressly empowers this Court to issue all writs and process necessary to the exercise of its appellate jurisdiction.   The Legislature, therefore, can pass no act impairing the exercise of this appellate power.  [¶] But while the Legislature cannot substantially impair the right of appeal, it is certainly competent to regulate the mere mode in which this right must be asserted.   The Constitution only empowers this Court to issue such writs and process as may be necessary to the exercise of its appellate jurisdiction;  if this appellate jurisdiction can be exercised without this process, then it cannot be necessary, and should not be issued.”   (Ibid.)

Haight 's statement that the Legislature could regulate the mode in which appellate rights would be asserted suggested that the Legislature could prescribe writ review in place of appeal.   However, Haight addressed the reverse side of the coin presented to us:  whether writ was available when the Legislature prescribed appeal as the remedy.  Haight held “that in all cases where an appeal is given by the statute, that remedy is exclusive and must be pursued, and that a writ of error will only lie in cases where no appeal is given by the act.”  (Id., at p. 300.)

People v. Jordan (1884) 65 Cal. 644, 4 P. 683, repeated the suggestion that the term “appellate jurisdiction,” brought forward to the 1879 Constitution, might include authority to review a ruling by extraordinary writ.   The question there was whether the prosecution could appeal a judgment for defendant on a demurrer to a misdemeanor indictment.  Jordan denied a motion to dismiss the appeal, finding inherent power to entertain the appeal.   The Jordan court observed that the Constitution gave it “appellate jurisdiction” in all criminal cases prosecuted by indictment, but the court did not interpret that grant to furnish a right to appeal.   Instead, it read the constitutional provision as an open-ended grant of jurisdiction under which, because the Legislature had not done so, the court could adopt its own procedures:  “We are confronted by the duty, imposed by the Constitution, of reviewing the proceedings of the court below.   We entertain no doubt that we have the power of declaring ․ how this and like cases may be brought here for review.   We may issue to the lower court a writ of mandamus or certiorari ․”  (Id., at p. 648, 4 P. 683.)

In Tyler v. Connolly (1884) 65 Cal. 28, 30, 2 P. 414, decided the same year as Jordan, the court hinted to the contrary, suggesting that “appellate jurisdiction” may equate with the right to appeal.   The issue in Tyler was whether the defendant could appeal a contempt judgment.   The Tyler court first found no constitutional right to appeal, then turned to the statutes.  “Conceding that the legislature may confer appellate jurisdiction on this court in cases not provided for in the Constitution, we have been referred to no statute giving the right to appeal from a judgment in a contempt case.”   (Id., at p. 30.)   The court then noted that a statute provided that a contempt judgment was final and conclusive, which meant no appeal could be taken.   The court therefore dismissed the appeal.   A concurring justice pointed out, however, that certiorari or habeas corpus would lie.  (Id., at pp. 31–33, 2 P. 414.)

In the quoted passage describing its futile search for a statute conferring “appellate jurisdiction,” Tyler equated that term with the “right to appeal.”   However, the court did not consider whether the Legislature could have provided for review by extraordinary writ or whether such a statute would also confer “appellate jurisdiction.”   The only issue before the court was the defendant's right to appeal.

These later Supreme Court decisions injected some confusion about the meaning of “appellate jurisdiction” in the original Constitution, but they did not overrule the court's earlier interpretation.

The 1904 Constitutional Amendments

In 1904, article VI, section 4 of the Constitution was amended to establish the District Courts of Appeal, which were given “appellate jurisdiction on appeal from the Superior Courts” in certain classes of cases.   The provision governing appellate jurisdiction of the California Supreme Court was amended to provide “appellate jurisdiction on appeal from the Superior Courts” but otherwise was, for the most part, retained and the Supreme Court was given discretionary appellate jurisdiction over all matters coming before the District Courts of Appeal.   Both courts were given the power to issue writs “necessary or proper to the complete exercise of its appellate jurisdiction.”   Sutter–Butte, interpreting the Supreme Court provision, held the Legislature could not destroy the right of appeal there given.  (Sutter–Butte, supra, 190 Cal. at p. 536, 213 P. 974.)

Unfortunately for our inquiry, neither Sutter–Butte nor any decision we have discovered directly addressed the significance of the 1904 amendment's addition of the words “on appeal” to the grant of “appellate jurisdiction.”   We must consider whether this change altered the meaning of the constitutional provision and provided a right to appeal.

Sutter–Butte was an unusual case because the legislation there sought to take away both appeal and writ remedies, stating:  “ ‘[T]he decision of a majority of said court shall be final and conclusive, and no motion for a new trial of said proceeding shall be allowed, and no appeal from the judgment given and made by said court shall be had.’ ”  (In re Sutter–Butte, supra, 190 Cal. at p. 535, 213 P. 974, quoting Stats.1919, p. 1094, § 8.)   We distinguish Sutter–Butte on the ground the Public Records Act merely substituted writ for appeal as a mode of review.

The Supreme Court's post-Sutter-Butte signals have been mixed.   However, most of the decisions we have examined show that neither Sutter–Butte nor the amendment adding “on appeal” has diverted the court from Turner, the court's earliest interpretation of the constitutional provision.   Several of these post-Sutter-Butte decisions have at least implied that appeals and writs are two different modes of exercising appellate jurisdiction and have suggested that the Legislature may choose one mode to the exclusion of the other.

The 1928 amendments to article VI, section 4 of the California Constitution changed slightly the Supreme Court's jurisdiction and relocated to article VI, sections 4a, 4b, and 4c, the portions dealing with District Courts of Appeal.  Modern Barber Col. v. Cal. Emp. Stab. Com., supra, 31 Cal.2d at pp. 728–729, 192 P.2d 916, explained:  “The Constitution (art. VI, §§ 4, 4b) provides that the Supreme Court and the District Courts of Appeal ‘shall have appellate jurisdiction on appeal from the Superior Court․’   In interpreting this provision, the courts have held that the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable.  [Citations.] ․ [¶] There is no inconsistency between the foregoing authorities and decisions which declare, in substance, that the Legislature cannot alter the jurisdiction over extraordinary writs which is prescribed by the Constitution.   The controlling distinction between an unconstitutional enlargement of the jurisdiction of a court and a mere regulation of private rights and remedies, or the substitution of one remedy for another, becomes obvious upon an examination of these decisions.”  (See also Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78, 65 Cal.Rptr. 65, 435 P.2d 825;  People v. Valenti, supra, 49 Cal.2d at p. 204, 316 P.2d 633;  Trede v. Superior Court (1943) 21 Cal.2d 630, 634, 134 P.2d 745.)

The 1966 Constitutional Amendments

In 1966, provisions involving the Supreme Court and Courts of Appeal were amended to their present form and were moved to article VI, sections 10 and 11.   Replacing a listing of various kinds of cases over which the appellate courts had jurisdiction, and a provision setting forth the power to issue writs necessary or proper to complete exercise of appellate jurisdiction, the new amendments simply stated that the Courts of Appeal have original jurisdiction in writ proceedings and appellate jurisdiction when superior courts have original jurisdiction.

The 1966 amendments did not change the constitutional rights granted.   (Bloom v. Municipal Court (1976) 16 Cal.3d 71, 75, 127 Cal.Rptr. 317, 545 P.2d 229;  accord, People v. Hawes (1982) 129 Cal.App.3d 930, 934–935, 181 Cal.Rptr. 456.)   However, after these changes and without discussing any of the cases mentioned above, the Supreme Court came close to finding a constitutional right to appeal the superior court's denial of a writ.   In Bloom v. Municipal Court, supra, 16 Cal.3d 71, 127 Cal.Rptr. 317, 545 P.2d 229, the Court of Appeal concluded appeal was not available to review a superior court judgment denying a writ of prohibition, which had been sought to restrain the municipal court from proceeding on a misdemeanor complaint.   The Court of Appeal treated the appeal as a petition for writ of prohibition and denied the petition.  Bloom reached the same result as the Court of Appeal on the merits, but first concluded that appeal was a proper remedy.

The Bloom court explained:  “Prior to revision of the Constitution in 1966, appeals from rulings by the superior courts on petitions for writs of prohibition were expressly included within the appellate jurisdiction of the Courts of Appeal.  ‘The district courts of appeal shall have appellate jurisdiction on appeal from the superior courts ․ in proceedings of ․ prohibition․’  (Cal. Const., art. VI, § 4b.)   When the judicial article was revised, ‘detailed references to instances of appellate jurisdiction,’ except for this court's appellate jurisdiction in death penalty cases, were deleted as ‘unnecessary.’  (Cal. Const.Rev.Com., Proposed Rev. of Cal.Const. (Feb.1966) p. 91.)

“Although no longer spelling it out in so many words, article VI still clearly provides that Courts of Appeal have jurisdiction over appeals from superior court judgments in prohibition proceedings.  Section 11 provides in part that ‘courts of appeal have appellate jurisdiction when superior courts have original jurisdiction․’  Section 10 provides in part that superior courts ‘have original jurisdiction in proceedings for extraordinary relief in the nature of ․ prohibition.’   There is not the slightest indication in the comments of either the Constitution Revision Commission or the Judicial Council that revision of article VI was intended or expected to affect the appellate jurisdiction of the Courts of Appeal in this regard.  (Cal. Const.Rev.Com., Proposed Rev. of Cal. Const. (Feb. 1966) pp. 90–91;  Judicial Council of Cal., 1967 Rep. to Governor and Legislature, pp. 76–77.)

“Analogy to habeas corpus procedure is not persuasive.   An order by a superior court denying a writ of habeas corpus can be challenged only by filing a new petition in a higher court, but that rule is statutory.  [Citations.]   In contrast, the Code of Civil Procedure makes the statutes pertinent to appeals applicable to writs of prohibition.   Section 1110 provides that ‘The provisions in Part two of this code relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title.’   Prohibition is a proceeding mentioned in chapter 3 of the title.  [Citations.]”  (Id., at pp. 74–75, fn. omitted, 127 Cal.Rptr. 317, 545 P.2d 229.)

Bloom did not mention Turner, Sutter–Butte, the changes made by the 1904 amendment, or any of the court's previous statements about the Legislature's authority to regulate the mode of appellate review.  Bloom 's initial statements suggested the court might be departing from prior law and discovering a right to appeal in article VI, section 11.   Then, somewhat paradoxically, the court supported its ruling by showing that the Legislature provided for appeal from a writ of prohibition decision, whereas no statute provided for appeal from denial of a writ of habeas corpus.   Reading these statements together, we conclude the court may have found only “appellate jurisdiction” in the Constitution and looked to the statutes for the right to appeal.

If Bloom were the Supreme Court's last word on the subject, we would scrutinize it more closely to determine whether the court found a constitutional right to appeal.   However, dicta in Bermudez v. Municipal Court (1992) 1 Cal.4th 855, 4 Cal.Rptr.2d 609, 823 P.2d 1210, shows Bloom is limited to a situation where the Legislature has specified appeal as an appropriate remedy and the appellate court has refused to consider an appeal.

When Bloom was decided, an aggrieved party could appeal denial of a petition for extraordinary writ by the superior court, even if the superior court was being asked to issue a writ against the municipal court in a case within the municipal court's original jurisdiction.   Responding to appellate court criticism (Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 728–729, 140 Cal.Rptr. 897;  Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 238–239, 111 Cal.Rptr. 539), the Legislature amended the law to provide exclusively for writ review of “a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition directed to the municipal court ․ which relates to a matter pending in the municipal ․ court.”  (Stats.1982, ch. 1198, § 63.2, p. 4323;  Bermudez, supra, 1 Cal.4th at p. 860, 4 Cal.Rptr.2d 609, 823 P.2d 1210.)  Bermudez held this provision, which specifically applied to writs of mandate and prohibition, did not preclude appeal from a superior court judgment granting writ of certiorari in a municipal court contempt matter.  (Id., at p. 864, 4 Cal.Rptr.2d 609, 823 P.2d 1210.)

Later in the opinion, Bermudez invited the Legislature to amend the statute to bar appeal from a superior court review by certiorari of a municipal court contempt matter.  (Id., p. 864, fn. 7, 4 Cal.Rptr.2d 609, 823 P.2d 1210.)   At the time the Supreme Court was aware of claims article VI, section 11, conferred a right to appeal a superior court writ decision.   In Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1333, 283 Cal.Rptr. 893, 813 P.2d 240, footnote 6, decided seven months earlier, the court solicited briefs on the constitutionality of section 6259, subdivision (c), but declined to decide it.  Bermudez 's invitation to restrict appeal implies that Bloom is limited to a situation where the Legislature provides for a remedy by appeal and supports our conclusion the Legislature may properly restrict appellate jurisdiction to review by writ.  (But see People v. Brown (1993) 6 Cal.4th 322, 334, 24 Cal.Rptr.2d 710, 862 P.2d 710, where, faced with arguments based in part on Sutter–Butte, Haight, and Byers, the court construed Code of Civil Procedure section 170.3, subdivision (d), to avoid the constitutional issue of whether the statute offended article VI, section 11.)

We do not read the 1904 amendment's addition of “on appeal from the Superior Courts” or the 1966 amendment's simplification of the Constitution's wording as either removing the writ as a tool for exercising appellate jurisdiction or renouncing the Supreme Court's many declarations that the Legislature may regulate the mode of exercising appellate jurisdiction.  “Appellate jurisdiction,” as used in article VI, section 11, does not provide a right to appeal and exclude review by extraordinary writ.   Consistent with section 11, review may be limited to extraordinary writ if the Legislature so provides.  (Cf. In re Taya C. (1991) 2 Cal.App.4th 1, 6–7, 2 Cal.Rptr.2d 810.)

Richmond's motion to dismiss the appeal is granted.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Government Code.

MERRILL, Associate Justice.

WHITE, P.J., and CHIN, J., concur.