At issue is the legality of $519 million in loans between state funds to help balance the state budget during times of fiscal crisis. We conclude that the loans are lawful. The loan provisions, contained in annual budget bills, are germane to the subject of appropriations and thus do not
The loan transactions are complex and require an understanding of state finances generally, and the specific operation and purpose of the state fund that lent money to other funds.
State government programs are financed, in large part, by expenditures from the General Fund and special funds. (Cal. Dept. of Finance, Finance Glossary of Accounting and Budgeting Terms <http://www.dof.ca.gov/ fisa/bag/DofGlossFrm.HTM> [as of Sept. 22, 2011] (hereafter, Finance Glossary).) "The General Fund consists of money received into the treasury and not required by law to be credited to any other fund." (Gov. Code, § 16300.) The primary sources of revenue for the General Fund are personal income taxes, sales taxes, and corporation taxes. (Finance Glossary.) The major uses of the General Fund are education, health and human service programs, and correctional programs. (Finance Glossary.) Special funds are created by statute or regulation and are "used to budget and account for taxes, licenses, and fees that are restricted by law for particular activities of the government." (Finance Glossary.) There are many special funds with billions of dollars in total expenditures. In fiscal year 2010-2011, for example, budget expenditures from the General Fund totaled roughly $92 billion and budget expenditures from special funds were over $30 billion.
The General Fund and special funds, although separate, are not impermeable. Transfers and loans are statutorily permitted from special funds to the General Fund, and from the General Fund to special funds. (Gov. Code, §§ 16310, 16351.) The statute relevant here provides: "When the General Fund in the Treasury is or will be exhausted, the Controller shall notify the Governor and the Pooled Money Investment Board. The Governor may order the Controller to direct the transfer of all or any part of the moneys not needed in other funds or accounts to the General Fund from those funds or accounts. ... All moneys so transferred shall be returned to the funds or
Like the Governor's power to order a transfer between funds, the Legislature may enact an appropriations bill that transfers "a special fund reserve temporarily from one purpose to another" provided the transfer does not interfere "with the objects for which such fund was created." (Daugherty v. Riley (1934) 1 Cal.2d 298, 309 [34 P.2d 1005].) This district Court of Appeal has recently confirmed that "money in special funds [may] be loaned to shore up the General Fund" subject to the specified statutory conditions of Government Code section 16310: "exhaustion of the General Fund, no interference with the object for which the special fund was created, [and] return of the money as soon as feasible." (California Medical Assn. v. Brown (2011) 193 Cal.App.4th 1449, 1458 [123 Cal.Rptr.3d 647] (California Medical Assn.).)
In California Medical Assn., the Legislature acted to close a budget deficit by including an item in the 2008 budget bill providing for a loan of $6 million to the General Fund from a special fund, the Contingent Fund of the Medical Board of California. (California Medical Assn., supra, 193 Cal.App.4th at p. 1452.) That special fund receives physician licensing fees and uses the money to oversee and discipline physicians. (Id. at p. 1453.) The California Medical Association, representing physicians, challenged the legality of the loan with a petition for a writ of mandate directing that the money be returned. (Id. at pp. 1452-1453.) Denial of the petition was affirmed on appeal. (Id. at p. 1452.) The court held that the loan was authorized under Government Code section 16310, and that the statutory conditions were satisfied. (California Medical Assn., at pp. 1455-1465.) The court found no interference with the object for which the special fund was created, the regulation of California physicians, which continued despite reduced funding. (Id. at pp. 1459, 1464-1465.)
The Legislature has made other loans from special funds to the General Fund. At issue here are several loans from a special fund called the California Beverage Container Recycling Fund (Recycling Fund). To understand the parties' claims on appeal, a detailed explanation of the operation and financing of California's recycling program is necessary.
"In 1986, the Legislature adopted the California Beverage Container Recycling and Litter Reduction Act (Pub. Resources Code, § 14500 et seq.) (the Act) to encourage large-scale recycling of used beverage containers through a program of financial incentives." (Californians Against Waste v. Department of Conservation (2002) 104 Cal.App.4th 317, 319 [127 Cal.Rptr.2d 905].) The California Beverage Container Recycling and Litter Reduction Act (Recycling Act; Pub. Resources Code, § 14500 et seq.) was initially administered by the Department of Conservation, and is now administered by the Division of Recycling in the Department of Resources Recycling and Recovery (CalRecycle).
The central component of the Recycling Act's complicated system of financial incentives is a refundable deposit on beverage containers paid when beverages are purchased and recovered when empty containers are recycled. Beverage distributors make a "`[r]edemption payment'" to CalRecycle on every beverage container sold or offered for sale in California.
The record reflects that, "[o]ver the history of the [Recycling Act], the redemption [payment] and the refund value have usually been equal, although this is not always the case." The record also shows that the redemption payment and refund value have ranged from an initial 1 cent per beverage container to a current high of 5 cents for a container of less than 24-ounce capacity, and 10 cents for a container of 24-ounce or greater capacity. (See Pub. Resources Code, § 14560, subd. (a)(3).)
Not all beverage containers are returned for recycling. The redemption rate for beverage containers is not, and never has been, 100 percent. As a result, a portion of the redemption payments borne by consumers remains in the Recycling Fund and is used to pay CalRecycle operating costs and various fees and grants for curbside collection programs, recycling centers, material processors, and other participants in the recycling stream.
Traditional recycling centers are relatively large facilities, usually located in sparsely populated areas, to which consumers bring recyclable bottles and cans and exchange them for a refund—by weight or per container. (Pub. Resources Code, § 14572, subd. (a).) Traditional recycling centers redeem the bulk of beverage containers recycled in California, about 62 percent.
Convenience zone recycling centers are smaller operations, typically located in supermarket parking lots and consisting of several large bins and one employee with a scale. (Pub. Resources Code, §§ 14509.4, 14520, 14526.5, 14526.6.) Convenience zone recycling centers provide consumers with a place to redeem beverage containers contemporaneously with grocery shopping, avoiding the need to travel to a traditional recycling center. Consumers generally do not redeem beverage containers at the retail store where they purchased the beverages. Retailers are required to accept returned containers only if there is no convenience zone recycling center in the area. (Pub. Resources Code, § 14571.6.) There are about 2,000 convenience zone recycling centers in California. CalRecycle reports that convenience zone recycling centers handle about 25 percent of the used beverage containers recycled in the state.
Recyclers (curbside programs and recycling centers) sell the used beverage containers to material processors for the containers' scrap value. (Pub. Resources Code, § 14519.5.) The processors sort the containers and sell the reclaimed materials to manufacturers. (Pub. Resources Code, §§ 14518, 14519.) In addition to paying scrap value to the container recyclers, processors (as intermediaries of CalRecycle) also pay the containers' refund value— which reimburses recycling centers for payments made to consumers and
From the standpoint of a recycler, it costs more to handle glass and plastic containers for recycling than the materials are worth when sold for scrap to a processor. Among the materials used in beverage containers, aluminum alone has a scrap value in excess of its handling costs. In order to promote the recycling of glass and plastic, the cost of recycling these materials is subsidized with "processing payments." By law, processing payments are the difference between the scrap value of the container and the sum of its average cost to recycle and a "reasonable financial return." (Pub. Resources Code, § 14575, subd. (b)(2).) In early 2009, for example, the processing payment for glass containers was $99.97 per ton—the difference between the per ton scrap value of glass ($5.99) and the sum of the cost of recycling a ton of glass containers with a reasonable financial return for the operation ($105.96). CalRecycle adjusts processing payment amounts periodically based on fluctuating recycling costs and commodity prices. (Pub. Resources Code, § 14575, subd. (c)(1) & (2)(A)-(B).) Both recyclers and processors receive processing payments.
Processing payments are funded primarily from the unredeemed deposits paid by consumers who purchase beverages in containers that are not all returned for recycling. Beverage manufacturers that package their products in plastic and glass also pay "processing fees" into the Recycling Fund, which partially funds the processing payments to recyclers. A processing fee is imposed upon manufacturers who use container materials with recycle costs that exceed their scrap value under "the `polluter-pays' principle," which encourages manufacturers to switch to materials that have a lower cost of recycling and increases the market for recycled products (thus increasing the scrap value of the material over time). Originally, manufacturers paid the entire amount of the processing payment. A manufacturer's contribution is now statutorily capped at 65 percent of the cost of the processing payment. (Pub. Resources Code, § 14575, subd. (e)(1)(A)-(I) & (2).)
CalRecycle may reduce the manufacturer processing fee, subject to the availability of funds, to encourage the use of containers with better recycling
Convenience zone recyclers located near supermarkets receive an additional financial incentive, beyond the containers' scrap value, processing payments, and administrative payments. They receive "handling fees." (Pub. Resources Code, §§ 14526.6, 14585.) Handling fees are per container fees paid to convenience zone recyclers as a subsidy, to cover the additional cost of operating recycling collection sites at supermarket locations. (Pub. Resources Code, §§ 14513.4, 14585, subd. (f).) Handling fees are meant to encourage establishment of convenient recycling locations.
In summary, funding for the Recycling Act's beverage container recycling program flows through the Recycling Fund, which CalRecycle administers. Beverage manufacturers pay processing fees to the Recycling Fund on beverage containers that have a recycling cost greater than their scrap value, and distributors make redemption payments to the Recycling Fund on beverage containers, the cost of which is ultimately passed through to consumers. In turn, the Recycling Fund makes several types of payments to consumers, recyclers, and processors to encourage recycling.
The program has been a great success. In 2008, Californians recycled over 16 billion beverage containers and California leads the nation in total quantity of bottles and cans recycled. The Recycling Act established a beverage container recycling goal of 80 percent. (Pub. Resources Code, § 14501, subd. (c).) The recycling rate was 52 percent in 1988, shortly after the program began. The recycling rate reached 82 percent in 2009, despite program alterations over the years that added new container types with historically low recycling rates. Since inception of the recycling program in 1987, more than 200 billion beverage containers have been recycled.
The Recycling Fund was designed to be self-financing with the redemption payments funding consumer refunds, processing payments, and other costs. The Recycling Fund maintained an equilibrium in its first years but expenditures exceeded revenue in the early 1990's when the refund value was set higher than the redemption payment on beverage containers. The Recycling Fund borrowed about $43 million to maintain its solvency during the early 1990's. In 1992, the redemption payment and refund value were reconciled to the same amount so the program was not paying out more money than it was receiving on each beverage container. For many years thereafter, the Recycling Fund enjoyed a surplus balance because the recycling program generated revenue in excess of expenditures. As noted earlier, the Recycling Act established a beverage container recycling goal of 80 percent. (Pub. Resources Code, § 14501, subd. (c).) Recycling rates were often lower than 80 percent, especially after the program was expanded in 1999 to include additional types of containers. The excess of redemption payments over refund claims created a fund surplus. At the end of fiscal year 2001-2002, the Recycling Fund balance was over $155 million and growing.
In 2002, an economic downturn and stock market drop led to a budget shortfall in California's General Fund. (Legis. Analyst, Cal. Spending Plan 2002-03, ch. 1 <http://www.lao.ca.gov/2002/spend_plan_02/0902_ spend_plan_chap_1.html> [as of Sept. 22, 2011].)
The Recycling Fund balance remained high despite these loans. At the end of fiscal year 2003-2004, the Recycling Fund balance was over $83 million
The Legislature adopted a number of measures relating to the recycling program in 2006. (Stats. 2006, ch. 907.) The Legislature extended repayment of the 2002 and 2003 loans from the Recycling Fund to the General Fund until June 30, 2013, and also amended various provisions of the Recycling Act to increase CalRecycle expenditures. (Stats. 2006, ch. 907.) Among other things, the Legislature increased processing payments, handling fees, incentive payments, and grants. The Legislature also directed CalRecycle to submit a report addressing the Legislative Analyst Office's concerns with the below-target recycling rate and high fund balance. CalRecycle submitted a report in February 2007. CalRecycle estimated that revenues and expenditures would be nearly balanced in the short term at around $1 billion each but that program changes would increase expenditures and the recycling rate over time, leading to a reduced Recycling Fund balance.
The Recycling Fund continued to have a positive fund balance at the end of fiscal year 2007-2008. The fund balance at that time was over $306 million, and an additional loan from the Recycling Fund was made. The September 2008 budget bill authorized a $32 million loan from the Recycling Fund to the Air Pollution Control Fund (a fund administered by the State Air Resources Board) to assist in the implementation of programs to reduce
In November 2008, CalRecycle prepared forecast figures for the 2009-2010 budget being prepared by the Governor. CalRecycle projected a surplus fund balance of $81 million for fiscal year 2009-2010. The February 2009 budget bill approved a loan of $99.4 million from the Recycling Fund to the General Fund, with repayment "made so as to ensure that the programs supported by the [Recycling Fund] are not adversely affected by the loan, but no later than June 30, 2013." The interfund transfer was directed to be made by the Controller, upon order of the Director of Finance. The budget bill also authorized an immediate $35 million loan from the Recycling Fund to the Air Pollution Control Fund, to be "repaid by the earliest feasible date" but no later than June 30, 2014.
CalRecycle's projection of a fund surplus for fiscal year 2009-2010 was wrong. A later audit revealed that CalRecycle's forecast model was flawed, which led the department to understate expenditures and thus overstate its projected fund balance. CalRecycle stated that market changes also led to an overstatement of the projected fund balance, including reduced sales of beverages resulting in lower revenue and higher recycling rates that increased expenditures.
The recycling rate rose from 61 percent in 2005 to 82 percent in 2009, surpassing the Recycling Act's goal of an 80 percent recycling rate. (Pub. Resources Code, § 14501, subd. (c).) At these recycling rates, expenditures outpaced revenue and the Recycling Fund experienced an operating deficit. An audit report shows that in fiscal year 2008-2009, CalRecycle collected about $1.2 billion in redemption payments and paid almost all of that amount—about $1 billion—in refund claims. The additional program expenses were over $300 million, thus exceeding the remaining $200 million collected as redemption payments.
In April 2009, CalRecycle informed the Department of Finance, through a series of informal meetings, that a correction of CalRecycle's earlier forecast of its fund condition was needed. CalRecycle also reportedly notified the Department of Finance that the $99.4 million loan to the General Fund authorized by the 2009 budget bill would add to the Recycling Fund's projected deficit. However, CalRecycle had not yet fully analyzed the nature of the error in its earlier projection and thus did not explain the specific factors causing the need for revision. The loan proceeded as planned.
CalRecycle notified the Legislature of the projected deficit in May 2009 and, in June 2009, announced payment reductions to recycling program participants. In its June 23, 2009 announcement, CalRecycle reported that "[t]he dramatic increase in the recycling rate, coupled with a flattening of container sales due to the downturn in the economy, has resulted in increased payouts without a commensurate rise in previously expected revenues." Having "determined that there will be inadequate monies in the [Recycling Fund] to make all of the payments" specified in the Recycling Act, CalRecycle announced a proportional reduction in processing payments, processing fee offsets, handling fees, curbside supplemental payments, and a host of other programs, effective July 1, 2009. Further reductions were announced effective November 1, 2009. Overall, payments to recyclers were reduced by about 15 percent, and beverage manufacturer processing fee costs were increased by around $50 million. Redemption refunds and administrative fees were unaffected by the projected fund deficit and continued to be paid in full.
Upon learning of the projected deficit in the Recycling Fund in May 2009, the Governor proposed restructuring the program to address its fiscal problems. The Legislature rejected the proposal and enacted its own in September
In March 2010, with solvency reestablished, CalRecycle announced to program participants that processing payments, processing fee offsets, and handling fees would be restored, retroactive to January 2010. The reduced payments lasted six months, from July 2009 through December 2009. CalRecycle ended fiscal year 2009-2010 with a fund balance of $119 million. (CalRecycle April 2011 Status Report.) Despite the reduced financial incentives occasioned by CalRecycle's temporary insolvency in 2009, the recycling rate was at an above-target rate of 82 percent from 2009 through 2010. (CalRecycle, State's Beverage Container Recycling Rate Matches All-Time High in 2010 <http://www.calrecycle.ca.gov/NewsRoom/2011/05May/ 06.htm> [as of Sept. 22, 2011].)
The Recycling Fund has continued to receive loan repayments. In fiscal year 2010-2011, the General Fund made loan repayments of $98 million to the Recycling Fund. (CalRecycle, Quarterly Report on Status of the Beverage Container Recycling Fund (July 11, 2011) (CalRecycle July 2011 Status Report) <http://www.calrecycle.ca.gov/BevContainer/RecycleFund/2011/ JulStatus.pdf> [as of Sept. 22, 2011].) The Air Pollution Control Fund repaid $21 million to the Recycling Fund that same year. (Ibid.) The Governor's budget for fiscal year 2011-2012 provides for additional loan repayments of $88 million from the General Fund and $21 million from the Air Pollution Control Fund. (Ibid.) In total, the Legislature authorized $519 million in loans from the Recycling Fund to another special fund and the General Fund
In the July 2011 report, CalRecycle forecast that the Recycling Fund "will be solvent as long as expected loan repayments to the Recycling Fund continue." (CalRecycle July 2011 Status Report.) CalRecycle projects a positive fund balance through the end of fiscal year 2011-2012, even without loan repayment from the General Fund, but the necessary fund reserve will require sizeable loan repayments. (Ibid.) CalRecycle reports that the Recycling Fund's solvency is "based upon loan repayments" because expenditures are expected to be greater than revenue in fiscal year 2011-2012. (Ibid.) This assumes, of course, no additional structural reforms of the recycling program that change the level of revenue and expenditures. A number of options, however, are being considered and may affect the Recycling Fund balance in the future. (Legis. Analyst, The 2010-11 Budget: Funding and Policy Options for the Beverage Container Recycling Program (Mar. 18, 2010).)
This litigation began in late 2009, after CalRecycle reduced processing payments to beverage container recyclers and processors and reduced handling fees to convenience zone recycling centers. In November 2009, three recycling center operators filed a petition for a writ of mandate and a complaint for declaratory relief in the Alameda County Superior Court. Plaintiffs are Tomra Pacific, Inc., Jolly Giant Flea Market, Inc., and Michael Ray Regan and Daniel Patrick Regan, doing business as R.B. Enterprises Recycling (collectively, Recycling Center Plaintiffs). They sued the Controller, the Director of Finance, and the Director of CalRecycle. The Recycling Center Plaintiffs allege that the "improper and ill-advised" loans from the Recycling Fund to the General Fund rendered the Recycling Fund insolvent and unable to make full payments to them and other recyclers, with "disastrous consequences" to the recyclers and the recycling program as a whole. (Boldface and capitalization omitted.) The Recycling Center Plaintiffs seek a declaration that the failure to repay the loans violates state law and a writ of mandate compelling the defendant state officials to reimburse the Recycling Fund for transfers made to the General Fund, and to restore full handling fees and processing payments to participants in the recycling program.
In December 2009, the California Chamber of Commerce and taxpayer Larry Dicke (collectively, Chamber of Commerce Plaintiffs) brought related claims against the same state officials named by the Recycling Center Plaintiffs. The Chamber of Commerce Plaintiffs seek a declaration that the loans from the Recycling Fund to another special fund and the General Fund
The two cases were consolidated in the trial court and heard on March 19, 2010. The Recycling Center Plaintiffs argued that the loans from the Recycling Fund depleted its balance and forced "drastic cuts" in payments to recycling centers that threatened the existence of those centers and, in turn, California's recycling program. The Recycling Center Plaintiffs claimed that the loans violated Government Code section 16310, subd. (a), which prohibits "any transfer that will interfere with the object for which a special fund was created" and violated the budget bills which, consistent with the principle reflected in Government Code section 16310, authorized loans to the General Fund with the stated intent that repayment would be "made so as to ensure that the programs supported by [the Recycling Fund] are not adversely affected by the loan[s]."
The Chamber of Commerce Plaintiffs raised additional legal objections to the loans. They argued that inclusion of the loan provisions in the budget bills violated the state constitutional provision that "[a] statute shall embrace but one subject...." (Cal. Const., art. IV, § 9.) In a related argument, the Chamber of Commerce Plaintiffs argue that transferring money from the Recycling Fund to the General Fund "essentially changes the nature of the manufacturer processing fee [paid to the Recycling Fund] from a regulatory fee used to fund the cost of the beverage container recycling program into a general tax" and, as a general tax, was improperly included in the budget bills.
The court denied the writ petitions and entered an order in favor of defendants. The court found that the program reductions did not interfere with, or adversely affect, the Recycling Fund's objective and that CalRecycle may not be compelled to restore prior funding levels given its statutorily conferred discretion to impose reductions. (Gov. Code, § 16310, subd. (a); Pub. Resources Code, § 14581, former subd. (c)(3).) The court also found that the loan provisions in the budget bills were concerned with appropriations and were thus compliant with the single-subject rule. (Cal. Const., art. IV, § 9.) The court rejected the claim that manufacturer processing fees were taxes. Manufacturers never pay more than a portion of the cost of recycling the manufacturer's beverage containers, with the rest subsidized by the state. (Pub. Resources Code, § 14575, subd. (e)(1).) The increase in processing payments was thus no more than a decrease in a subsidy, not a tax, the court reasoned.
The Recycling Center Plaintiffs and Chamber of Commerce Plaintiffs filed notices of appeal from the court's order. We note that the order denying the
The Recycling Fund itself has been a recipient of interfund loans, receiving loans from other funds in its early years and more recently when it faced an unexpected deficit. As we noted earlier, the Recycling Fund borrowed about $43 million to maintain its solvency during the early 1990's. In the fiscal year 2009-2010 budget, the Legislature approved an $8.25 million loan from a special fund to the Recycling Fund, which helped return the Recycling Fund to solvency and end the disputed processing payment and fee reductions. (CalRecycle April 2011 Status Report.)
The Chamber of Commerce Plaintiffs argue that the budget bill loans' provisions are "substantive in nature" and meant to divert money from the Recycling Act's statutory purposes related to beverage container recycling to unauthorized uses. Although it is true that budget bills are "particularly susceptible to abuse" of the single-subject rule and have sometimes been used as vehicles for substantive policy changes, we see no evidence of that here. (Planned Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187, 1198 [219 Cal.Rptr. 664] (Planned Parenthood).)
Our Supreme Court has observed that the single-subject rule was adopted to cure "an abuse [that] had grown up, which consisted in attaching to a bill dealing with one matter of legislation a clause entirely foreign to that subject-matter, to the end that, hidden under the cloak of the meritorious legislation, the obnoxious measure might `ride through.'" (Ex parte Hallawell (1909) 155 Cal. 112, 114 [99 P. 490].) "`History tells us that the general appropriation bill presents a special temptation for the attachment of riders. It is a necessary and often popular bill which is certain of passage. If a rider can be attached to it, the rider can be adopted on the merits of the general appropriation bill without having to depend on its own merits for adoption.'" (Planned Parenthood, supra, 173 Cal.App.3d at p. 1198.) But this case does not concern unrelated riders attached to a budget bill and, contrary to plaintiffs' claim, bears no resemblance to Planned Parenthood.
In Planned Parenthood, the Legislature adopted a budget bill provision that effectively amended existing statutes to prohibit the state Office of Family Planning from making state funds available to any clinic that performs, promotes, or advertises abortion. (Planned Parenthood, supra, 173 Cal.App.3d at p. 1191.) This Court of Appeal found the provision unconstitutional under the single-subject rule because the provision changed the substantive authority of a state agency, which was a subject materially distinct from the subject of appropriations. (Id. at pp. 1201-1202.) A number of cases
This case is closer to a recent California Supreme Court case that upheld a budget bill provision against a claim that the provision violated the single-subject rule. (Professional Engineers, supra, 50 Cal.4th at pp. 1049-1051.) In Professional Engineers, the Legislature adopted a provision in the Budget Act of 2008 reducing the appropriations for state employee compensation and authorizing the use of furlough plans as a means of achieving the reduction. (Professional Engineers, at pp. 1044, 1049.) The plaintiffs there argued that the furlough plan provision violated the single-subject rule, and our high court rejected the argument. (Id. at p. 1049.) The court contrasted the case before it with Planned Parenthood, supra, 173 Cal.App.3d 1187 and similar cases, noting that the furlough provision was related to appropriations and "does not substantively amend or change any existing statutory provision or expand or restrict the substantive authority of any state agency." (Professional Engineers, at pp. 1049-1050.)
The budget bill loan provisions authorized loans of Recycling Fund balance surpluses, not diversions of revenue nor a cancellation of appropriations to the recycling program. Redemption payments, processing fees, and other revenue continued to be deposited in the Recycling Fund and appropriated to the payment of refund values, processor administrative fees, and processing payments. Refund values and processor administrative fees under Public Resources Code former section 14580, subdivision (a)(1) were not impacted by the loans. Those payments were always paid in full, even when an unforeseen deficit occurred in the Recycling Fund and temporary reductions in other aspects of the recycling program were imposed. Processing fee
The Chamber of Commerce Plaintiffs allege that the budget bills are not properly focused upon the single subject of appropriations because the bills' loan provisions effectively impose a tax upon beverage manufacturers by diverting fees the manufacturers pay into the Recycling Fund for regulatory functions into funds used for general revenue purposes. A tax, plaintiffs argue, is not an appropriation and therefore offends the constitutional single-subject rule. (Cal. Const., art. IV, § 9.) We reject the argument. Regulatory fees paid into the Recycling Fund were not converted into taxes when the Recycling Fund made loans to the General Fund.
The Chamber of Commerce Plaintiffs allege in their complaint that "[t]he processing fees paid by beverage manufacturers are not being used for regulatory purposes but instead to fund general government purposes through the General Fund. As such, the manufacturer's processing fee is a tax." On appeal, these plaintiffs suggest that redemption payments made by consumers are also being converted to taxes but that claim was not alleged in the complaint nor raised in the memorandum supporting the petition for a writ of mandate, and therefore is not a proper subject for this appeal. The relevant question is whether the processing fee is a tax, as plaintiffs allege. We conclude that the processing fee is a regulatory fee, not a tax.
In Sinclair Paint, the court reviewed a statute enacted by the Legislature to address childhood lead poisoning. (Sinclair Paint, supra, 15 Cal.4th at p. 870; Health & Saf. Code, § 105275 et seq.) The statute established a program to provide medical evaluation and services for children who were deemed potential victims of lead poisoning. (Sinclair Paint, supra, at p. 870.) The program was funded by fees assessed on paint manufacturers and other contributors to environmental lead contamination. (Ibid.) A paint manufacturer alleged that the fees were really taxes, and unauthorized because they
The Chamber of Commerce Plaintiffs concede that the processing fee imposed upon beverage manufacturers meets the first criterion of Sinclair Paint because the fee is regulatory in nature and is limited to the costs of the service or program. Plaintiffs contend that the processing fee fails the second criterion of Sinclair Paint, asserting that the fee is imposed for unrelated revenue purposes. We reject the contention. The fee is levied upon beverage manufacturers as a partial contribution to the processing payment made to recyclers and processors for recycling the manufacturers' containers. The processing fee is a regulatory fee and not a tax because the fee is collected to mitigate the adverse effects of the fee payers' operations and not for unrelated revenue purposes. (Sinclair Paint, supra, 15 Cal.4th at pp. 870, 876.)
All plaintiffs, both the Chamber of Commerce Plaintiffs and the Recycling Center Plaintiffs, contend that the loans from the Recycling Fund to the General Fund and the Air Pollution Control Fund adversely affected recycling programs and interfered with the object for which the Recycling Fund was created. We find insufficient evidence of interference with the Recycling Fund's regulatory object of promoting beverage container recycling.
In enacting the budget bills at issue here, the Legislature acknowledged the principle that interfund loans should not interfere with a fund's purpose. The 2002 budget bill authorized a loan from the Recycling Fund to the General Fund, set a date for repayment, and stated: "It is the intent of the Legislature that the repayment is made so as to ensure that the programs supported by this fund are not adversely affected by the loan." The 2002 budget bill also authorized the Director of Finance to transfer some of the loan proceeds back to the Recycling Fund during the 2002-2003 fiscal year as necessary to meet the Recycling Fund's cashflow needs, with all unused loan money reverting to the General Fund at fiscal yearend.
At oral argument, counsel for the Recycling Center Plaintiffs suggested that the state's failure to offer a direct refutation of their claim that the budget bills imposed a mandatory duty apart from, and greater than, the duty imposed by Government Code section 16310 was a "waiver." There is no waiver. The state's position is, and always has been, that Government Code section 16310 sets the standard for the legality of interfund loans and that the loans at issue here satisfy that standard. That position is not forfeited by the state's failure to address an alternative standard proposed by plaintiffs. Nor do we accept the suggestion made at oral argument that plaintiffs are entitled to submit supplemental briefing on the question of whether the budget bill provisions created a mandatory duty more stringent than any duty imposed by Government Code section 16310. (Gov. Code, § 68081.) Plaintiffs raised the issue in their briefing on appeal and had a full opportunity to address it. (People v. Alice (2007) 41 Cal.4th 668, 677 [61 Cal.Rptr.3d 648, 161 P.3d 163].) The issue requires no additional briefing.
Even if some mandatory duty were extrapolated from these general statements in the budget bills, that duty must be read in light of Government Code section 16310. When read in the proper light, the budget bills' stated concern that the Recycling Fund not be adversely affected by the loans appears to be no more than an acknowledgement of Government Code section 16310's limitation on interfund loans that interfere with a fund's purpose rather than, as plaintiffs argue, a departure from the statutory standard to a stricter limitation on interfund loans.
Plaintiffs have also misread the budget bill provision that allows the Director of Finance to transfer some of the loan proceeds back to the Recycling Fund to meet the fund's monthly cashflow needs. This provision allowed for temporary transfers during the fiscal year covered by the budget bill with all unused loan money reverting to the General Fund at the end of the fiscal year. Effectively, the provision protected the Recycling Fund from month-to-month cashflow problems that could arise from a large lump-sum payment of the loan at the start of the fiscal year. The provision does not mandate transfers and does not apply beyond the relevant fiscal year.
The guiding standard is the one established by Government Code section 16310 and the cases interpreting its limitation on interfund loans. Plaintiffs' evidence of alleged adverse effects on Recycling Fund programs is therefore immaterial. The relevant question is whether the loans from the Recycling Fund interfered with the object for which the Recycling Fund was created. (Gov. Code, § 16310; Daugherty v. Riley, supra, 1 Cal.2d at p. 309.)
The court rejected the plaintiffs' claim that the loan interfered with the object for which the special fund was created and held that the loan was authorized under Government Code section 16310. (California Medical Assn., supra, 193 Cal.App.4th at pp. 1455-1466.) In so holding, the court found no "evidence indicat[ing] that the loan in question has compromised the Medical Board's regulatory mission." (Id. at p. 1464.) The record showed that a surplus remained in the contingent fund after extending the loan to the General Fund, and a medical board budget analyst declared that the loan had no material effect on the medical board's ability to perform its statutory obligations of licensing physicians and enforcing the law. (Id. at p. 1455.) The court acknowledged that the loan may have resulted in physicians paying higher license fees because fees are statutorily set to provide a certain fund balance, and the loan reduced the fund balance. (Id. at p. 1459.) This effect, however, was not an interference with the object of the fund that would invalidate the loan, the court found. (Ibid.) The court reasoned that the fund was not created to set the amount of license fees but to regulate physicians— and that object was not impaired by the loan. "The Contingent Fund exists, broadly speaking, to enable the regulation of California physicians. Because the loan has not hindered performance of the Medical Board's regulatory responsibilities, it has not interfered with the purpose for which the Contingent Fund was `created.'" (Ibid.)
When the writ petitions were filed, the funding cuts were still in place, and plaintiffs worried that continued loss of funding would drive recyclers and other program participants out of business. The Recycling Center Plaintiffs note that the Recycling Act aims "to enhance the profitability" of recycling centers and other recycling programs to provide consumers with convenient recycling opportunities. (Pub. Resources Code, § 14501, subd. (f).) Plaintiffs claimed that the Recycling Act, and the Recycling Fund it established, were being undermined by funding cuts that would cause recycling centers to fail in large numbers and leave consumers without places to redeem beverage containers for recycling. This dire situation did not materialize. Fortunately, the Legislature and Governor responded quickly to restore the Recycling Fund to solvency. There was, however, a temporary deficit, and that deficit compelled CalRecycle to implement a proportional reduction in processing payments, processing fee offsets, handling fees, curbside supplemental payments, and a host of other programs, from July 1, 2009, to December 31, 2009. It is this situation with which we are concerned.
Plaintiffs first observe that, absent the loans, there would have been no Recycling Fund deficit. This is true. The Recycling Fund made loans of $519 million between 2002 and 2009. Had that money remained in the Recycling Fund, the fund would have had a surplus in May 2009, not a projected deficit of $154.1 million. But it is not accurate to say that the loans in the 2002 to 2009 budget bills are responsible for the deficit. The case is not that simple.
In fact, a legislative concern in 2006 was the "[s]welling" and "persistent" Recycling Fund surplus and the Legislature considered (and took) "corrective action" with "the goal of increasing the rate of recycling, which would serve to bring down the fund balance to more reasonable levels" by increasing expenditures. (Legis. Analyst, Analysis of the 2006-07 Budget Bill: Dept. of Conservation (3480) pp. 1, 4.) The Recycling Fund continued to have a surplus fund balance at the end of fiscal year 2007-2008. The fund balance at that time was over $306 million. It was under these circumstances that the September 2008 budget bill authorized a $32 million loan from the Recycling Fund to the Air Pollution Control Fund.
It is only after enactment of the 2009 budget bill that problems arose. As previously discussed, CalRecycle prepared forecast figures for the 2009-2010 budget that projected a surplus fund balance of $81 million. Based on that projection, the February 2009 budget bill approved loans from the Recycling Fund to the General Fund and the Air Pollution Control Fund. Unfortunately, CalRecycle's projection of a fund surplus for fiscal year 2009-2010 was wrong. As noted above, CalRecycle's forecast model was flawed and market changes led to an overstatement of the projected fund balance. The recycling rate rose from 61 percent in 2005 to 82 percent in 2009, surpassing the Recycling Act's goal of an 80 percent recycling rate. (Pub. Resources Code, § 14501, subd. (c).) At these recycling rates, expenditures outpaced revenue and the Recycling Fund experienced an operating deficit. To be sure, the loans from the Recycling Fund were a contributing factor to the Recycling Fund deficit, especially the 2009 budget bill loans. But, as the Legislative Analyst's Office reports, "[s]everal factors, working in combination," resulted in the Recycling Fund deficit. (Legis. Analyst, The 2010-11 Budget: Funding and Policy Options for the Beverage Container Recycling Program, supra, p. 4.) Those factors included loans from the Recycling Fund but also included declining beverage sales and increasing recycling rates. (Ibid.)
It is worth noting that, even to the extent that the loans did contribute to the Recycling Fund deficit, that effect was unintentional and unexpected. The Recycling Fund had a stated surplus each time the Legislature approved loans from the Recycling Fund to other funds. It is unfair to characterize the loans, as do the Chamber of Commerce Plaintiffs, as "a raid" on the Recycling Fund and to suggest that the Legislature undertook "creative financing schemes to benefit the General Fund" at the expense of the Recycling Fund. CalRecycle
The Recycling Fund's insolvency did lead to funding cuts from July 1, 2009, to December 31, 2009. Overall, payments to recyclers were reduced by about 15 percent and beverage manufacturer processing fees were increased by around $50 million in the aggregate. We conclude that these funding cuts adversely affected recycling program participants, but we reject plaintiffs' claim that the cuts interfered with the object of the Recycling Fund to promote beverage container recycling.
We first note that the recycling rate did not decrease as a result of the 2009 funding cuts, contrary to the Recycling Center Plaintiffs' claim in their briefing on appeal. To support their claim of a drop in the recycling rate, plaintiffs cite a CalRecycle biannual report showing a lower recycling rate in the second half of 2009, when payment reductions were in effect, than in the first half of 2010. But the report covers only a portion of 2010. More recent figures show that the recycling rate was at an above-target rate of 82 percent in both 2009 and 2010, despite the reduced financial incentives occasioned by CalRecycle's temporary insolvency in the second half of 2009. (CalRecycle, State's Beverage Container Recycling Rate Matches All-Time High in 2010 <http://www.calrecycle.ca.gov/NewsRoom/2011/05May/06.htm> [as of Sept. 22, 2011].)
The Chamber of Commerce Plaintiffs argue that it is "simplistic" to focus on the recycling rate as an indicator as to whether the Recycling Fund is fulfilling its regulatory purpose. Plaintiffs note that the Recycling Act's statements of intent not only set a recycling goal of 80 percent but also avow that it is "[t]he responsibility" of "manufacturers, distributors, dealers, recyclers, processors" and CalRecycle alike "to provide convenient, efficient, and economical redemption opportunities" to consumers. (Pub. Resources Code, § 14501, subds. (c) & (g).) The Chamber of Commerce Plaintiffs argue that this responsibility has been unfairly shifted to manufacturers through increased processing fees. We reject the argument. CalRecycle implemented proportional reductions impacting all participants, not just manufacturers.
The impact on manufacturers was higher processing fees. Manufacturers paid more in processing fees when the Recycling Fund experienced a deficit because the processing fee offset, or subsidy, applies only when there are available funds. (Pub. Resources Code, § 14575, subd. (e)(1).) The effect of the deficit was to reduce the subsidies to the manufacturers so that manufacturers had to pay 65 percent of the processing payment given to recyclers (the
For this same reason, we reject the Recycling Center Plaintiffs' dispute with funding cuts in curbside recycling supplemental grants, conservation corps grants, and similar programs. Plaintiffs have failed to link the funding cuts with impairment of the Recycling Fund's regulatory purpose. The curbside recycling programs, for example, are funded primarily through receipt of refund values for the containers they collect, and no evidence was presented that the curbside programs—and the recycling they promote—were appreciably damaged by the loss of supplemental grants.
The Recycling Center Plaintiffs next argue that interference with the object of the Recycling Fund is evidenced by the reduction in the number of convenience zone recycling centers, like the ones they operate. The president of Tomra Pacific, Inc. (Tomra), one of the Recycling Center Plaintiffs, submitted a declaration attesting to significant business losses as a result of the 2009 Recycling Fund payment reductions. Tomra is the largest operator of convenience zone recycling centers in California. The company's president states that Tomra closed 40 sites and laid off 67 employees as a result of the funding cuts. It is undisputed that the statewide number of convenience zones with recycling centers dropped from 2,142 in June 2009, before the funding cuts, to 2,071 in December 2009. Although the fact is undisputed, its significance is not.
Plaintiffs stress the importance of convenience zone recycling centers for easy container returns and maintain that the loss of 71 centers (a reduction of
Even if we accept the Recycling Center Plaintiffs' claim that the funding cuts did impact the operations of convenience zone recycling centers and caused a reduction in their numbers, the evidence as a whole does not show that the Recycling Fund's regulatory mission to promote beverage container recycling was compromised by the reduction. Convenience zone recycling centers, although an important part of the recycling program, are not the principal means of recycling. At least 75 percent of recycling is handled through traditional recycling centers and curbside programs. Also, the reduction in the number of convenience zone recycling centers was small—3.3 percent. Consumers therefore continued to have many avenues open to them for recycling. We acknowledge plaintiffs' point that the Recycling Fund is intended to make recycling convenient to consumers, but the small reduction in the number of one type of recycling opportunity is not proof that convenient recycling was lost. (Pub. Resources Code, § 14501, subds. (a) & (e).) On this record, we cannot say that the Recycling Fund's goal of promoting beverage container recycling was materially harmed by the budget bill loans that contributed to a fund deficit and funding cuts.
We recognize that convenience zone recycling center operators and their employees have suffered financial troubles, and we do not minimize their difficulties. But these are difficult times, and the Legislature must make difficult choices when balancing the budget during a recession. The Legislature must also, of course, make lawful choices—regardless of financial expediency. It is the judiciary's task to hold the Legislature to account on that matter. We have scrutinized the record and are satisfied that the Legislature acted lawfully here. The loans from the Recycling Fund did not interfere with the object for which the Recycling Fund was created and were therefore lawful. (Gov. Code, § 16310; Daugherty v. Riley, supra, 1 Cal.2d at p. 309.)
The order denying petitions for a writ of mandate is affirmed.
Reardon, Acting P. J., and Rivera, J., concurred.
