SUPERIOR COURT OF MENDOCINO COUNTY v. COUNTY OF MENDOCINO (1995)

Today we are called upon to resolve a troublesome confrontation between the legislative and judicial branches of government.   We must decide in which branch the California Constitution imposes the ultimate power to determine when courts will be in session.   To the victor go the keys to the courthouse and with them the decision when to lock the doors and bar the public.   Herein, the Superior Court of Mendocino County challenges the trial court's decision upholding the action of the Mendocino County Board of Supervisors in closing the court.   We find the statute under which the board of supervisors acted unconstitutional because it represents a legislative exercise of judicial power and, therefore, violates the doctrine of separation of powers as enshrined in the Constitution of California.

I. BACKGROUND

On June 30, 1993, Government Code 1 section 68108 became effective, declaring that the superior, municipal and justice courts “shall not be in session” on “unpaid furlough days” agreed upon by any county and its employees—to the extent that any such agreement includes “employees assigned to regular positions in the superior, municipal, and justice courts․” ²

Shortly after section 68108 was enacted, the Board of Supervisors of Mendocino County ratified a number of agreements reached with county employees which provided for six specific unpaid furlough days.   The Superior Court of Mendocino County immediately notified the board that its “particular needs” (see § 68073, in pt. II) required it to remain open five days a week to fulfill its constitutional duties.   The board, in response, notified the superior court that the board had authority to enforce the unpaid furlough days and the related closure of county offices, including the courts.   The superior court then issued orders on October 14 and November 19, 1993, commanding the board to provide funding for the salaries of employees on the designated furlough days.

When the board failed to honor its orders, the superior court sued the County of Mendocino, the Mendocino County Board of Supervisors, Mendocino County Administrative Officer Michael K. Scannell and Mendocino County Auditor/Controller Dennis Huey (collectively, the Board).   The complaint sought declaratory relief, injunctive relief, and the issuance of a peremptory writ of mandate, commanding the Board to comply with the orders of October 14 and November 19 and to modify the furlough programs to exclude court employees, unless specifically agreed to by the superior court.

The Judicial Council assigned a judge from another county to resolve the superior court's claims and the Board's counterclaim for declaratory relief.   Ultimately, the trial court denied the petition for writ of mandate and determined that its ruling rendered moot the issues raised by the motion for preliminary injunction.

This appeal was taken from the judgment of the trial court denying the petition for writ of mandate.³  Both our interpretation of section 68108 and our determination of its constitutionality require independent “de novo” analysis.  (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856;  North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 804–805, 168 Cal.Rptr. 95.)

II. SECTION 68108 GRANTS TO A SUBORDINATE LEGISLATIVE BODY THE ABSOLUTE AUTHORITY TO CLOSE THE COURTS WITHOUT FIRST OBTAINING THEIR CONSENT

The superior court urges us to interpret section 68108 as necessarily implying that the consent of the court must be obtained before closing the courts to effect an unpaid work furlough day authorized by the Board's agreement with county employees.

 The first rule of statutory interpretation is that courts should give effect to statutes according to the usual, ordinary import of the language employed in framing them.  (California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at p. 698, 170 Cal.Rptr. 817, 621 P.2d 856.)  “If the meaning is without ambiguity, doubt, or uncertainty, then the language controls.  [Citations.]   There is nothing to ‘interpret’ or ‘construe.’ ”  (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1239, 8 Cal.Rptr.2d 298.)   Only if the meaning of the words is not clear, should courts examine a statute's legislative history.   (Ibid.)

 In our view, the words of section 68108 are clear and unequivocal:  If a county board of supervisors tells the courts in that county to close, they must do so.   Thus, there is no need to examine the legislative history of section 68108 ⁴ to clarify its “meaning” or the Legislature's intent in enacting it.⁵

The superior court argues that section 68108 must be construed with reference to the entire system of which it is a part so all statutes may be harmonized and given effect.  (Hays v. Wood (1979) 25 Cal.3d 772, 784, 160 Cal.Rptr. 102, 603 P.2d 19.)   According to the Superior Court, if section 68108 is considered in the context of sections 24261, 68073, and 6700, as well as Code of Civil Procedure sections 135 and 134, subdivision (c), it must be read as containing “an implied term requiring agreement by a court before furlough days are imposed.” ⁶

We respectfully disagree.   The language of section 68108 could not be clearer:  on days designated as “unpaid furlough days” by the County Consolidated Memorandum of Understanding “the Courts shall not be in session. ”   The only exception provided is when the presiding judge finds a judicial emergency, which is defined as “war, insurrection, pestilence, or other public calamity.” ⁷  Under no known theory of statutory interpretation can we find this language ambiguous so that we would then be empowered to “interpret” it in a constitutional manner by conditioning closure upon the consent of the Court.

 We conclude, as did the trial court, that section 68108 means what it says.   County board of supervisors designated furlough days do not require superior court approval for validity pursuant to this statute.   If the Legislature had meant to so condition the imposition of furlough days, it certainly knows how to do so.   It recognizes by statute the power of the court to remain open on a judicial holiday “as the judges of the court prescribe.”  (Code Civ.Proc., § 134, subd. (c).)  Thus, however, anomalous it may seem, the Legislature has now established a system under which the judges of a court may choose to conduct night court on New Years Eve, but are absolutely precluded from conducting court on days designated by county boards of supervisors as “unpaid furlough days.”

III. SECTION 68108 IS UNCONSTITUTIONAL BECAUSE IT AUTHORIZES LEGISLATIVE EXERCISE OF POWERS RESERVED TO THE JUDICIARY

 In determining whether or not section 68108 is constitutional, we start with the presumption that it is.  (In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.)   Moreover, we must resolve all doubts in favor of its constitutionality.  (Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 122, 277 Cal.Rptr. 730.)

Neither the Board, the superior court, nor amici curiae have cited any case in which the constitutionality of a statute which requires a court to close has been challenged.   Our independent research, likewise, has led us to none;  therefore, we look to cases considering separation of powers issues in other contexts for guidance.

Our analysis begins with the California Constitution.  Article III, section 3, of the California Constitution provides:  “The powers of state government are legislative, executive, and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”   Under article VI, section 1, the “judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, municipal courts, and justice courts․”

Although the California Constitution speaks in terms of three separate branches of government, they are, in reality, also “mutually dependent.”   (Brydonjack v. State Bar (1929) 208 Cal. 439, 442, 281 P. 1018.)   Moreover, historically, our Supreme Court has acknowledged that, although the powers of each branch are theoretically equal, in practical effect, the powers of the Legislature are truly greater than the powers of the executive and judicial branches in some respects:  “Of necessity the judicial department as well as the executive must in most matters yield to the power of statutory enactments.”  (Ibid.)

The question of the degree to which the Legislature may regulate the courts without improperly exercising powers reserved exclusively to the judiciary has been addressed in a number of decisions.   In Brydonjack v. State Bar, supra, 208 Cal. at page 443, 281 P. 1018, the Supreme Court rejected an argument that it was unconstitutional for the Legislature to vest the State Bar with the authority to make recommendations to the Supreme Court regarding admission to practice, in spite of the fact that admission to practice was “conceded everywhere to be the exercise of a judicial function․”   In so doing the court noted that “the legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions․”  (Id., at p. 444, 281 P. 1018.)   Because ultimate authority concerning admission to the Bar remained with the judiciary, the scheme met constitutional muster.

In Millholen v. Riley (1930) 211 Cal. 29, 293 P. 69, the court held that a division of the Second District Court of Appeal had the authority to appoint and direct the payment of compensation for a secretary (Millholen).   The court issued a writ of mandate, compelling the State Controller to pay her.   In doing so, the court noted that “[a] court set up by the Constitution has within it the power of self-preservation, indeed, the power to remove all obstructions to its successful and convenient operation.   This arises from the fact that it is part of and belongs to one of the three independent departments set up by the Constitution, article VI, section 1․   While the above statement is true, there is this qualification thereof, which has been recognized at all times in this state—the legislature may at all times aid the courts and may even regulate their operation so long as their efficiency is not thereby impaired.”  (Id., at pp. 33–34, 293 P. 69.)

In In re McKinney (1968) 70 Cal.2d 8, 10–12, 73 Cal.Rptr. 580, 447 P.2d 972, the court determined that the Legislature could place limits on the inherent contempt powers of the courts, because the Legislature had not “deprived the court of all power to punish a class of contempts.”   In Johnson v. Superior Court (1958) 50 Cal.2d 693, 696, 329 P.2d 5, the court upheld a statutory scheme (Code Civ.Proc., § 170.6) permitting summary disqualification of a judge without a judicial finding of bias.⁸

In Brydonjack the legislation in question was interpreted by the Supreme Court as authorizing the State Bar to make recommendations regarding admission to practice, while reserving to the Supreme Court the power to make decisions regarding admission.  (Brydonjack v. State Bar, supra, 208 Cal. at pp. 445–446, 281 P. 1018.)   As such, the inherent power of the courts to regulate admissions was “not impaired.”   In In re McKinney, supra, 70 Cal.2d at pages 10–13, 73 Cal.Rptr. 580, 447 P.2d 972, the Supreme Court upheld the Legislature's limitations on the courts' inherent contempt powers because the Legislature did not eliminate all power to punish a particular class of contempts.   Although Johnson v. Superior Court, supra, 50 Cal.2d at page 696, 329 P.2d 5 did uphold the summary disqualification of a trial judge upon the filing of an affidavit of bias, it is important to note that an earlier statutory scheme (Code Civ.Proc., § 170.5), which provided for summary challenges to trial judges without affidavits of bias, was found invalid as an “unwarranted and unlawful interference with the constitutional and orderly processes of the courts.”  (Austin v. Lambert (1938) 11 Cal.2d 73, 79, 77 P.2d 849.)

 These cases teach us that the Legislature may regulate the courts “so long as their efficiency is not thereby impaired” (Millholen v. Riley, supra, 211 Cal. at p. 34, 293 P. 69) or so long as the regulation does not “defeat or materially impair” the exercise of judicial functions (Brydonjack v. State Bar, supra, 208 Cal. at p. 444, 281 P. 1018).   Thus, legislation which regulates the courts will be found constitutional if it does not materially impair their efficient exercise of the judicial function.

The question of whether or not section 68108 materially impairs the efficient exercise of the judicial function must be answered by examining the historic role of the courts in our constitutional system of government.   The superior courts of California are courts of general jurisdiction.   Among others, their responsibilities include felony trials and sentencing (including murder and death penalty trials);  juvenile proceedings of all kinds;  dissolution proceedings and child custody matters;  probate of wills and administration of estates;  mental health proceedings;  and the adjudication of a nearly limitless variety of civil disputes.   Not only are the superior courts charged with the responsibilities noted above, they are charged with carrying out most of them within limited time periods.  (See, for example, Pen.Code, § 1050, subd. (a), and § 68600 et seq.)

Our courts are more than conduits for resolving controversies.   As the Alabama Supreme Court has recently noted, “the courts are, in many respects, the means by which the people of this nation assure their most fundamental individual rights.   The courts are the forum where the guarantees set out in the Bill of Rights, Amendments I–X, to the United States Constitution ․ gain meaning and limit governmental power.”  (Folsom v. Wynn (Ala.1993) 631 So.2d 890, 897.) ⁹

 Whether the role of the superior courts is broadly defined as declaring the law and determining the rights of parties to controversies (County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 76, 222 Cal.Rptr. 750) or more specifically defined as administering justice in the context of their constitutional responsibilities, it is self evident that those courts cannot satisfactorily perform judicial functions if their doors are locked.   Because section 68108 mandates their closure, according to the terms of labor agreements between counties and their employees, it necessarily “materially impairs” their exercise of the judicial function under the California Constitution.  (Brydonjack v. State Bar, supra, 208 Cal. at p. 444, 281 P. 1018.)

The Board argues that the mandatory closure of the courts for a few days does not impair the ability of the courts to function because under Code of Civil Procedure section 134, subdivision (c), the courts can stay open on any non-furlough day at their discretion.   However, that argument begs the question.   Code of Civil Procedure section 134, subdivision (c), and sections 24261 and 68073 constitute unequivocal legislative recognition of the inherent power of the courts to control their own hours and days of operation, as they determine to be appropriate.   Under the California Constitution, the Legislature cannot wrest that power from the courts, even if the total number of days the courts remain open is unaffected.

The Board also asserts that any potential dangers to the functioning of the courts associated with section 68108 are obviated by the provision that the courts may remain open in the event of a judicial emergency, as set forth in section 68115.¹⁰  We disagree.   Section 68115 permits the transfer of actions in the event of certain emergencies—e.g. war or an enormous influx of criminal cases.   It does not address transfers or other remedies in nonemergency settings, nor does it address the need for litigants to have continuous access to the courts in the counties in which they reside or do business.

 In sum, “the courts have and should maintain vigorously all the inherent and implied powers necessary to properly and effectively function as a separate department in the scheme of our state government.  [Citations.]”   (Brydonjack v. State Bar, supra, 208 Cal. at p. 442, 281 P. 1018.)   The right and duty to be open and to provide access to justice is essential to such effective function.¹¹

IV. CONCLUSION

In holding section 68108 unconstitutional we do not ignore the severe economic conditions facing California.   In fact, we are acutely aware of the fiscal dilemma facing all branches of government at national, state and local levels.  Section 68108 and its predecessor, section 69910, were, without question, designed to assist counties in balancing their budgets by permitting them to opt for unpaid furloughs instead of layoffs.   However, providing for unpaid furlough days and ordering layoffs are not the only methods available for solving budget shortfalls.   Indeed, we note that the Mendocino County memoranda of understanding also provided for unpaid furlough hours in addition to unpaid furlough days.

Nevertheless, by whatever method the Legislature and local legislative bodies choose to resolve their financial crises, they must recognize that they lack the power under the California Constitution to order the courts to close.

We hold that section 68108 is unconstitutional.   We direct the trial court to vacate the interlocutory judgment entered below and issue a writ of mandate as requested in the superior court's complaint.   The Board is to bear the costs of appeal.

Invoking the inherent powers of the judiciary, my colleagues conclude that the Legislature may not enact any statute which has the effect of closing a courthouse for even one day.   I dissent.

At the outset it is crucial to emphasize that the challenge being mounted to Government Code section 68108 is a purely facial challenge.   Thus, for analytical purposes it makes absolutely no difference how many furlough days of court closure may result from implementation of section 68108.   If the section is facially infirm it is infirm if it results in a single day of court closure.

Our task is to determine if the statute is constitutional as written;  it fails that test only upon a showing that the statute on its face is in total and fatal conflict with the doctrine of separation of powers.  (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180–181, 172 Cal.Rptr. 487, 624 P.2d 1215.)

My colleagues note that the constitutional function of the judiciary is to administer justice, they then find it “self evident” that courts which are closed cannot administer justice, and finally, arrive at the conclusion that any closure of the court mandated by the Legislature must therefore be infirm as a usurpation of inherent judicial powers.

“[T]he legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions.”  (Brydonjack v. State Bar (1929) 208 Cal. 439, 444, 281 P. 1018;  accord, Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338, 178 Cal.Rptr. 801, 636 P.2d 1139.)   My colleagues acknowledge that this is the test against which Government Code section 68108 must be measured.   They then note that courts have lots of important things to do, some of which must be done in short time frames.   From that undisputed fact they segue to the notion that the section, while it does permit sessions in a state of judicial emergency, allows closure of the courthouse precluding “remedies in nonemergency settings” and denying “continuous access” to litigants.  (Maj. opn., ante, p. 381.)

This description of the statute fails to describe its provisions fairly.   The section requires that litigants be able to file documents via an automated drop box.   Moreover the section also provides that “an appropriate judicial officer shall be available to conduct arraignments and examinations as required pursuant to Section 825 of the Penal Code, and to sign any necessary documents on an emergency basis.”   I read this latter provision to require that on furlough days one judge be available to issue writs or stays which would preserve rights or protect the status quo until the court was next in session and could address the merits of such matters.

What my colleagues fail to show is how a closure on a furlough day offends the inherent power of the courts to administer justice more than closure on the Fourth of July or any holiday appointed by the Legislature.   For judicial holidays are not defined by the Constitution, but by the Legislature.  (Code Civ.Proc., §§ 133, 134, 135.)

At one time our state constitution did provide that superior and municipal courts “shall always be open, legal holidays and nonjudicial days excepted.”  (Cal. Const., Art. VI, § 5;  repealed Nov. 8, 1966.)   That provision was construed by our Supreme Court to be a restriction upon legislative power to limit the conduct of judicial business except upon holidays and nonjudicial days.  (Matter of Smith (1907) 152 Cal. 566, 569–570, 93 P. 191;  People v. Soto (1884) 65 Cal. 621, 622, 4 P. 664.) ¹  Underpinning this analysis is the crucial fact that the California Constitution, unlike our federal constitution, does not make an express grant of powers to the legislative body, but instead assumes the existence of all necessary legislative authority except as expressly limited or restricted by the Constitution.  (California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 175, 148 Cal.Rptr. 875, 583 P.2d 729.)  “ ‘[W]e do not look to the Constitution to determine whether the Legislature is authorized to do an act, but only to see if it is prohibited.’  [Citation.]”  (Collins v. Riley (1944) 24 Cal.2d 912, 916, 152 P.2d 169.)   Thus, in Smith and Soto the Supreme Court assumed that the Legislature had the power, absent the express constitutional language of restriction, to control when judicial business would be conducted.

At the time Smith and Soto were decided the Constitution did contain such language of limitation in article VI, section 5.   However, that limitation on legislative power to determine when judicial business would be conducted was deleted from the Constitution in 1966.   Accordingly, our constitution no longer provides that the courts shall always be open.   More importantly, the Legislature is no longer prevented by constitutional provision from closing the courts at times other than legal holidays and non-judicial days.

Thus, the only impediment to legislative action which closes courts on furlough days is whether any such closure defeats or materially impairs the judicial function.²  As the majority opinion outlines, the previous cases raising this issue have involved what I would consider to be “core” functions of the judiciary—the contempt power, the power to disqualify a judge, the power to regulate who will be admitted to practice law.   Were the statute before us to preclude all judicial action on furlough days—no arraignments, no writs, no stays, no filings—I too would find that the inherent power of the courts was being impermissibly usurped with respect to activities that stand at the core of administering justice.   However, such a statute is not before us.  Section 68108 does provide that courts will not be in session on furlough days, but I cannot find that any such closure necessarily defeats or materially impairs the administration of justice.

For this court to find otherwise is, in effect, to create a nullity of the legislative power of the purse when it comes to the courts.   If the Legislature cannot mandate closures for furlough days, then presumably it also could not permit a county in which there had been a precipitous decline in crime and a fall off in civil litigation to reduce the number of days its courts were open for all business.

My colleagues argue that the existence of several statutory provisions (specifically Code of Civil Procedure section 134, subdivision (c), and Government Code sections 24261 and 68073) “constitute unequivocal legislative recognition of the inherent power of the courts to control their own hours and days of operation, as [the courts] determine to be appropriate.”  (Maj. opn., ante, pp. 380–381.)   If these sections constitute legislative acknowledgment that the judiciary and only the judiciary can decide when the courts will be open then they do so in a most oblique manner.   One requires superior courts to be open on statewide election days if the county offices are open those days.  (Gov.Code, § 24261.)   One says nothing whatsoever about when courts shall be open but provides that should a county not provide rooms, attendants and furniture for the courts the courts may compel the county to pay for such items as it needs in order to operate.  (Gov.Code, § 68073.)   Finally, one section, added only in 1992, permits a court, as its judges may decide to stay open on judicial holidays or at night.  (Code Civ.Proc., § 134, subd. (c).)

While, I do not dispute the notion that a court might in certain circumstances show that a statute relating to court hours as applied precluded it from performing its judicial duties, none of the statutes my colleagues cite stands for the proposition (even as an implicit acknowledgment) that the courts have absolute control over their own days and hours of operation.

The case before us, however, is a challenge to the facial constitutionality of Government Code section 68108.   I cannot say that on its face section 68108 is in total and fatal conflict with the powers of the judiciary.   I would affirm the order of the superior court.

FOOTNOTES

FN1. Unless otherwise noted, all further statutory references are to the Government Code..  FN1. Unless otherwise noted, all further statutory references are to the Government Code.

2.   Section 68108 provides in full as follows:  “(a) With respect to the superior, municipal, and justice courts, to the extent that the county's Consolidated Memorandum of Understanding for county employees designates certain days as unpaid furlough days for employees assigned to regular positions in the superior, municipal, and justice courts, including all superior court, municipal court, and county employees assigned to the courts, the courts shall not be in session on those days except as ordered by the presiding judge upon a finding by the presiding judge of a judicial emergency as defined in Chapter 1.1 (commencing with Section 68115).   On these furlough days, although the clerk's office shall not be open to the public, each court shall permit documents to be filed at a drop box pursuant to subdivision (b), and an appropriate judicial officer shall be available to conduct arraignments and examinations as required pursuant to Section 825 of the Penal Code, and to sign any necessary documents on an emergency basis.  [¶] (b) A drop box shall provide for an automated, official time and date stamping mechanism or other means of determining the actual date on which a document was deposited in the drop box.”  (Emphasis added.)

3.   When the notice of appeal was filed herein, it was well settled that an appeal could be taken from a judgment denying a petition for writ of mandate, where, as here, no further action on the petition was contemplated, even if other causes of action were still pending between the parties.  (See Eisenberg, Horvitz & Wiener, Cal. Practice Guide:  Civil Appeals and Writs (Rutter 1994) § 2:112, pp. 2–50 to 2–51 and authorities cited;  Cal. Administrative Mandamus (Cont.Ed.Bar 1989) § 8.49, pp. 300–302 and authorities cited.)   Recently, however, Division Five of this District filed Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 540, 33 Cal.Rptr.2d 10, which holds that no appeal lies in this situation.   This conclusion, in turn, was based entirely on reasoning in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 29 Cal.Rptr.2d 804, 872 P.2d 143, another case decided well after the notice of appeal herein, and which disapproved numerous authorities indicating that judgments on “independent” causes of action tried separately were appealable.  (Id., at p. 743, 29 Cal.Rptr.2d 804, 872 P.2d 143.)In these unusual circumstances, we assume that Nerhan correctly states the law of California, but nevertheless exercise our discretion to treat this appeal as a petition for writ of mandate, and address its merits in that context.   At least two considerations justify this treatment:  the merits have been fully briefed and argued;  any other result would be “ ‘ “unnecessarily dilatory and circuitous” ’ ” (Olson v. Cory (1983) 35 Cal.3d 390, 401, 197 Cal.Rptr. 843, 673 P.2d 720) because the claims raised by this appeal would be subject to review on a writ petition in any event.  (See, e.g., Ibid.;  In re Albert B. (1989) 215 Cal.App.3d 361, 371–373, 263 Cal.Rptr. 694;  Estate of Hoertkorn (1979) 88 Cal.App.3d 461, 463, fn. 1, 151 Cal.Rptr. 806.)   In addition, all parties desire a quick resolution, and a speedy determination serves the best interests of all Californians.

4.   The fact that we do not need to examine the legislative history of section 68108 to understand its meaning does not mean we have not done so.   However, nothing in that history leads us to conclude that the Legislature intended anything other than what is clear and obvious from reading the statute.   The legislative history of section 68108 is very limited:  Section 68108 extended to all county boards the authority which had previously been given only to the San Bernardino County Board under section 69910 which was enacted in 1992 and repealed when section 68108 was enacted.   The most significant difference between section 69910 and its successor was that section 69910 set a 10–day limit for furlough days and consequent court closures;  no such limit survived in the successor legislation here at issue.   Neither statute contains a statement of legislative purpose or intent.

5.   In spite of the lack of helpful legislative history, we take judicial notice on our own motion of the extreme fiscal crisis and budget shortages extant in this state and its political subdivisions.   We conclude, as we must, that the Legislature acted in response to this fiscal crisis in crafting this well intentioned alternative for local governments.

6.   Code of Civil Procedure section 135 sets forth days which are to be observed as judicial holidays and provides that officers and employees of the courts are to observe only the judicial holidays established under that section.   Among other days, Code of Civil Procedure section 135 provides that any full day designated under section 6700 is to be a judicial holiday.Section 6700 sets forth the holidays for California.   In addition to enumerating 10 specific holidays, section 6700 also designates every Sunday and any day specially appointed by the President or Governor as a holiday.  (In 1985, section 6700 was amended to remove the power of boards of supervisors to alter the dates on which eight of the enumerated holidays were observed.)Code of Civil Procedure section 134, subdivision (a), provides that, except as noted in subdivision (c), the courts are to be closed on judicial holidays for all but a limited number of purposes.Code of Civil Procedure section 134, subdivision (c), provides that one or more departments of any superior, municipal or justice court “may remain open and in session” on a judicial holiday “as the judges of the court prescribe.”Section 24261 requires that the superior courts must remain open on (statewide) election days when county ordinances require that county offices are to remain open on such days.Section 68073 requires that the board of supervisors for each county provide adequate rooms, court attendants, furniture and other amenities for the transaction of court business in the county.   If the board does not provide same, the court is to give notice to the board of its particular needs.   If the board then fails to provide what is required, the court may direct appropriate county officers to provide same, and the expenses incurred are to be paid from the general fund.

7.   Section 68115 gives trial courts the power to take certain remedial actions, such as holding sessions anywhere within the county and transferring civil cases to other courts, when “war, insurrection, pestilence, or other public calamity, or the danger thereof, ․ renders it necessary, or when a large influx of criminal cases resulting from a large number of arrests within a short period of time threatens the orderly operation of a court․”

8.   The constitutionality of Code of Civil Procedure section 170.6, was later reaffirmed in Solberg v. Superior Court (1977) 19 Cal.3d 182, 137 Cal.Rptr. 460, 561 P.2d 1148.

9.   In Folsom, the Alabama Supreme Court declared unconstitutional, as a violation of separation of powers, a statute which allowed the governor to reduce state court funding by five percent under certain conditions.

10.   See footnote 7, supra.

11.   Although such considerations are not relevant to our determination of the constitutionality of section 68108, we note that confirming the inherent power of the courts to control their days of operation also advances several important public policies.   First, it will avoid potential showdowns, where boards of supervisors select furlough days, and the courts follow suit by remaining open on a like number of judicial holidays.   Second, it will prevent state-wide confusion as to which courts are open on which days.   If the courts are open on different days in different counties, litigants who are not informed of a particular county's furlough days could well lose procedural and substantive rights.   And third, this decision will prevent those charged with criminal offenses and civil litigants (particularly those seeking injunctions) from being denied equal access to the courts by force of the county in which they have been charged or in which they are compelled to litigate.

1.   “The phrase ‘they’—the Superior Courts—‘shall always be open (legal holidays and non-judicial days excepted),’ is prohibitory of legislation establishing terms of court during which only judicial business can be transacted, but leaves the legislature at liberty to allow or disallow the transaction of all or any class of judicial business upon legal holidays.”  (People v. Soto, supra, 65 Cal. at p. 622, 4 P. 664.)“The main object in view [in the Constitutional debates] was not to hamper the courts by suspending their powers on holidays and during vacations, but to prohibit the legislature from imposing such limitations in all but the excepted cases (legal holidays and non-judicial days).   On these days the legislature was by the first clause left at liberty to authorize or forbid the transaction of any or all judicial business, and the only effect of the amendment proposed and adopted (clause b) was further to restrict that liberty by prohibiting any law disabling the superior courts to issue and cause the service of writs of injunction and prohibition.   Outside of these limitations the legislative power was left unrestrained.”  (Italics added.)  (Matter of Smith, supra, 152 Cal. at pp. 569–570, 93 P. 191.)

2.   The majority opinion suggests that this test extends to legislative actions which impair the efficiency of the courts.  (Maj. opn., ante, p. 379.)   The test is derived from Millholen v. Riley (1930) 211 Cal. 29, 34, 293 P. 69.   In Millholen the Supreme Court found that where the Legislature had failed to provide for the appointment or to fix the salary of court personnel, the inherent power of the court to exercise its jurisdiction permitted the court to make such appointment and salary decisions and in turn to require the executive branch to pay the salary set by the court.  (Id. at pp. 34–35, 293 P. 69.)   Since 1966 our Constitution has specifically assigned to the legislative branch responsibility for court personnel and their compensation.  (Cal. Const., art. VI, §§ 4, 5;  see County of Sonoma v. Workers' Comp. Appeals Bd. (1990) 222 Cal.App.3d 1133, 1141, fn. 4, 272 Cal.Rptr. 297.)I question whether a legislative act which merely impairs the efficiency of the judiciary is thereby infirm as violative of separation of powers.   Under that test virtually any legislative reduction in court funding would be impossible, and the judiciary could argue it was entitled to proportionately more tax dollars if its workloads increased lest it become less efficient.

ANDERSON, Presiding Justice.

PERLEY, J., concur.