Plaintiffs petitioned the trial court for an order compelling California's State Department of Public Health and its director (collectively the Department) to prepare and submit to the Legislature a safe drinking water plan (plan) as required in Health and Safety Code section 116355. The trial court denied the petition. We presume that, in doing so, the trial court concluded that the statutory requirement to prepare and submit the plan had been suspended. We disagree and reverse the judgment. The matter is remanded to enable the trial court to decide, in the first instance, whether the requirements of Code of Civil Procedure section 1085 have been met.
Plaintiffs are Cynthia A. Newton-Enloe and an organization called the A.G.U.A. Coalition.
The Department offered declarations from (1) David Spath, assistant division chief of the drinking water and environmental management division (Division) from 1993 to 1995 and chief of the Division from January 1996 to November 2005; (2) Rufus Howell, acting chief of the Division from November 2005 to November 2006 and chief of the Division from November 2006 to February 2008; and (3) Gary H. Yamamoto, then current chief of the Division.
Each declaration contained identically worded statements regarding the plan and the declarant's belief about the effect of Assembly Bill No. 3085 on the requirement to prepare a plan. A plan was prepared and submitted to the Legislature in or about January 1993. "Funding for preparation of the report had been provided by the Legislature but was discontinued by the Legislature in 1992 by AB [No.] 3085 and in the Budget Acts subsequently enacted by the Legislature." The declarants also identically stated, "It is my understanding that under Government Code Section 11098, because the Legislature discontinued the funding for the preparation of the report, any mandate to prepare the report was suspended." In addition, the Department took the position that the preparation and submission of the plan was not mandatory and, further, that plaintiffs did not have a beneficial interest in having one prepared.
Plaintiffs argued that the Department failed to demonstrate that Government Code section 11098 applied. They pointed out that the Department did not show that specific funding for the preparation of the plan was provided in any budget act prior to 1992 or that funding was discontinued after 1992. Plaintiffs also contended that the Department had a clear ministerial duty to prepare the plan; a lack of resources was not a defense to failing to perform a ministerial duty; and plaintiffs had a beneficial interest in the issuance of a writ.
The Department argued before the trial court that the statutory mandate to prepare and submit a plan was suspended by the Legislature's termination of funding. The court denied the petition, finding that "[plaintiffs] failed to carry their burden of proof to relief under Code of Civil Procedure § 1085, especially in light of the declarations filed by defendants." (Italics added.) As we have already mentioned, the declarations filed by the Department were from three current and former division chiefs who stated that funding for the plan was discontinued by the Legislature and that their understanding was "any mandate to prepare the [plan] was suspended." The declarations did not address any other issues. For example, the division chiefs did not say anything about the possibility of speedy alternative remedies or whether plaintiffs had a beneficial interest in having a plan prepared and submitted. The declarations related only to the Department's claim that the statutory mandate was suspended. We assume the court agreed with that claim and denied the petition for that reason.
To determine whether the Legislature has suspended the requirement to prepare and submit a plan, we review de novo the trial court's implicit statutory interpretations. (Kavanaugh v. West Sonoma County Union High
Section 116355, subdivision (a), provides: "Once every five years the department shall submit to the Legislature a comprehensive Safe Drinking Water Plan for California." Section 116355, subdivision (b), specifies information to be included in the plan, such as "[t]ypes and levels of contaminants found in public drinking water systems that have less than 10,000 service connections" and "[r]ecommendations for actions that could be taken by the Legislature, the department, and these systems to improve water quality." (§ 116355, subd. (b)(2).)
The crux of the Department's argument is that, notwithstanding the language of section 116355, their duty to prepare and submit a plan was suspended because the Legislature terminated funding in 1992. In examining this question, we begin with a brief history of section 116355 and its predecessor, Health and Safety Code former section 4022.
The first statutory requirement to prepare and submit a plan was enacted in 1989. Health and Safety Code former section 4022, subdivision (a), created a one-time obligation: "On or before July 1, 1991, the department shall submit to the Legislature a comprehensive Safe Drinking Water Plan for California." (Former § 4022, subd. (a), added by Stats. 1989, ch. 823, § 29, p. 2712.) Like current section 116355, former section 4022 required the plan to include, among other things, "[t]ypes and levels of contaminants found in public drinking water systems which have less than 10,000 service connections" and "[r]ecommendations for actions which could be taken by the Legislature, the department, and these systems to improve water quality." (Former § 4022, subd. (b).) Former section 4022, subdivision (c), provided authorization for a one-time fee to cover the costs of preparing this plan:
"(2) The fee shall be paid by water systems to the department at a rate of nine and fifteen one-hundredths cents ($0.0915) per service connection, up to a maximum amount of ten thousand dollars ($10,000)."
In 1992, by Assembly Bill No. 3085, the Legislature amended Health and Safety Code former section 4022, deleting subdivision (c). From an Assembly committee report, it appears that the one-time fee provision was deleted as obsolete because the fee had "already been collected and recovered." (See Assem. Com. on Ways & Means, Rep. on Assem. Bill No. 3085 (1991-1992 Reg. Sess.) as amended Mar. 31, 1992.) The committee report also commented that a "draft plan has been prepared, but has not been approved or submitted to the Legislature for unexplained reasons." (Ibid.) Despite the passing of the deadline, amended Health and Safety Code former section 4022 continued to require the Department to submit a safe drinking water plan on or before July 1, 1991. (Former § 4022, as amended by Stats. 1992, ch. 1103, § 1, p. 5100.) In fact, a plan was submitted to the Legislature in 1993.
In 1995, the Legislature renumbered Health and Safety Code former section 4022 as section 116355. (Former § 116355, added by Stats. 1995, ch. 415, § 6, p. 2576.) That statute continued to require the Department to submit a plan to the Legislature on or before July 1, 1991.
The Department contends that, in 1992, Assembly Bill No. 3085 permanently terminated funding for preparation of any safe drinking water plan. Therefore, the Department argues, Government Code section 11098 suspends
Since the plan is a report prepared by a state agency, we assume it is a legislatively mandated publication for purposes of Government Code section 11098. For section 11098 to apply, there must be a showing that funding for the plan has been discontinued in a budget act. The Department did not offer evidence of any budget acts in which funding for the preparation of the plan expressly was discontinued. Plaintiffs argue that deletion of the fee provision does not invoke Government Code section 11098 because Assembly Bill No. 3085 (in which the fee was deleted) was not part of a budget act. The Department concedes that there is no express discontinuation of funding in any budget act but argues that this is "of no consequence because if the Legislature terminates funding through statutory amendment, then it follows that the Legislature will not make an appropriation in the Budget Act."
We recognize that the Department provided declarations from three current and former division chiefs of the Department offering their opinion that the statutory mandate to prepare a plan was suspended by Assembly Bill No. 3085. On appeal, plaintiffs assert that these declarations lack foundation and independent evidentiary support. The Department counters that plaintiffs have forfeited any objections to the admission of the declarations because they failed to raise them in the trial court. We agree with the Department that the declarations properly are part of the record on appeal. Even so, they are of little value because they merely state legal conclusions.
For example, the division chiefs stated, "Funding for preparation of the report had been provided by the Legislature but was discontinued by the Legislature in 1992 by AB [No.] 3085 and in the Budget Acts subsequently enacted by the Legislature." The Department, however, concedes that there is nothing in any budget act that expressly demonstrates that funding has been discontinued for the current statutory mandate. The division chiefs' statements that funding was discontinued "in the Budget Acts" are nothing more than legal conclusions about the effect of the deletion of the fee provision. Similarly, the division chiefs each stated, "It is my understanding that under Government Code Section 11098, because the Legislature discontinued the funding for the preparation of the report, any mandate to prepare the report was suspended." This, again, is a legal conclusion about whether section 11098 applies to suspend the current statutory mandate.
"In the first category are factors that `assume the agency has expertise and technical knowledge, especially where the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion. A court is more likely to defer to an agency's interpretation of its own regulation than to its interpretation of a statute, since the agency is likely to be intimately familiar with regulations it authored and sensitive to the practical implications of one interpretation over another.' [Citation.] The second group of factors ...—those suggesting the agency's interpretation is likely to be correct—includes indications of careful consideration by senior agency officials ...." (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12-13 [78 Cal.Rptr.2d 1, 960 P.2d 1031].)
Here, the two broad categories of factors identified by the Supreme Court do not weigh in favor of judicial deference. First, the current and former division chiefs do not have any advantage over this court in determining whether Assembly Bill No. 3085 suspended the requirement to prepare and submit a safe drinking water plan. Although they certainly have specialized technical knowledge in drinking water and environmental management issues, they do not have any particular expertise in general statutory interpretation or legislative history. Second, there is no indication of careful consideration of the issue by the division chiefs. They indicated that it was their "understanding" that the statutory mandate was suspended, but they did not state the basis for this understanding. As a result, we give little weight to the division chiefs' opinions regarding the legal effect the 1992 deletion of a fee provision had on the subsequently imposed statutory duty to prepare and submit a plan.
For the reasons discussed above, we do not agree with the division chiefs' legal opinions and conclude that Assembly Bill No. 3085 did not discontinue funding for the current statutory mandate in section 116355. (See Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th at p. 13 [after determining weight accorded agency interpretations, ultimate resolution of legal questions rests with courts].) Consequently, the Department was not
As an alternative ground for affirming, the Department argues that the separation of powers doctrine would prohibit the trial court from compelling the preparation and submission of a safe drinking water plan. "Article III, section 3 of the California Constitution provides that `[t]he 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.' Article XVI, section 7 provides that `[m]oney may be drawn from the Treasury only through an appropriation made by law and upon a Controller's duly drawn warrant.' ... It has long been clear that these separation-of-powers principles limit judicial authority over appropriations. [Citations.]" (Butt v. State of California (1992) 4 Cal.4th 668, 698 [15 Cal.Rptr.2d 480, 842 P.2d 1240].)
The Department relies on Butt v. State of California, supra, 4 Cal.4th 668, and County of San Diego v. State of California (2008) 164 Cal.App.4th 580 [79 Cal.Rptr.3d 489]. In Butt v. State of California, the Supreme Court held that a trial court could not order the state to lend money to a financially distressed school district from specific funds that the Legislature had designated for other purposes. (Butt, at pp. 697-698.) "In a valid exercise of its constitutional powers, the Legislature had directed each of these sums to specific agencies and narrow purposes which did not include the District and its financial emergency.... By diverting the funds from their earmarked destinations and purposes, the court invaded the Legislature's constitutional authority." (Id. at p. 698.)
In County of San Diego v. State of California, supra, 164 Cal.App.4th at page 587, two counties sued the state seeking reimbursement for the costs of providing state-mandated programs. The trial court ordered the state to pay one county over $41 million and the other county over $72 million, covering a 15-year period, pursuant to Government Code section 17617. (County of San Diego v. State of California, supra, at p. 592.) The appellate court concluded that the trial court's order "violate[d] the separation of powers doctrine because it effectively order[ed] the Legislature to appropriate funds in future state budget acts." (Id. at p. 594.) "The writ relief the court fashioned is improper because it commands the payment of funds not yet appropriated." (Id. at p. 595.)
These cases do not apply here because plaintiffs do not seek disbursement of funds at all. Nor are they asking the court to order the Department to
The judgment is reversed. The matter is remanded to enable the trial court to decide whether the requirements of Code of Civil Procedure section 1085 have been met. Costs are awarded to plaintiffs. Plaintiffs' request for judicial notice filed on August 2, 2010, is denied.
Cornell, J., and Kane, J. concurred.