Marcia Fritz, perhaps the most public face of California's public pension reform movement, has answered a lawsuit that she violated labor laws and failed to contribute to former employees' retirement accounts -- and filed a civil complaint of her own claiming her accusers embezzled thousands from the accounting firm she once owned.

In documents filed in Sacramento Superior Court last week, Fritz says that Colleen and Tannith Mitchell, a mother and daughter who used to work for Citrus Heights-based accounting firm Marcia Fritz & Co. cost the the company more than $50,000 by giving themselves unearned bonuses and cash advances and running up unauthorized purchases.

As the company's office manager, Colleen Mitchell also was responsible for payroll, according to Fritz's cross-complaint, and failed to make timely payments into the employee retirement accounts.

The Mitchells' attorney, Peter McEntee, said that Fritz's counter-claims are bogus.

"We think it's retaliation for attempting to enforce my clients' labor code rights," McEntee said in a telephone interview this morning.

Marcia Fritz, the high-profile advocate for public employee reform, is being sued by two of her former employees for allegedly withholding money for their 401(k) accounts but failing to promptly make the contributions.

"There's absolutely nothing to it," Fritz said in a telephone conversation this afternoon. She said the action is "frivolous" and that she's planning to file her own counter lawsuit against plaintiffs Colleen and Tannith Mitchell.

The mother and daughter say that Fritz, a CPA and former head of Citrus Heights-based Marcia Fritz & Co., didn't make timely retirement savings contributions withheld from their pay checks, didn't pay them overtime and failed to provide meal and rest breaks.

Fritz said today that she has since sold her interest in the firm, although she's still available for consulting work.

Dave Low, chairman of union coalition Californians for Retirement Security, brought up the lawsuit during a pension policy face-off with Fritz at the Sacramento Press Club luncheon today. Low and Fritz have publicly sparred over the pension issue for the last few years.

Click the link below to read the court complaint.

With just 400 to 450 words for our weekly State Worker column, most of what we learn each week never sees print. Column Extras give you some of the notes, the quotes and the observations that inform what's published.

Our State Worker column in today's Bee examines the dispute between James Ward, who worked as chief dentist at Ironwood State Prison until July 2009, and the Department of Corrections and Rehabilitation.

Ward says he accepted in good faith a permanent position that was illegally voided when the state said the job was really temporary and eventually let him go.

The department says its employees were mistaken when they assured Ward the job was permanent. Returning him to a permanent state job now would bind departments to the erroneous actions of their lowest-level staff and managers, CDCR lawyers have argued.

SPB Judge Jeanne Wolfe heard arguments in the case and issued a decision last September in favor of Ward. As is its prerogative, the board rejected Wolfe's ruling and heard the case for itself last month. We expect a ruling within a few weeks.

Here's Wolfe's decision, which includes many more details about the matter than we could jam into our column:
James Ward v. CDCR

A Sacramento bankruptcy court last week rejected Don Novey's second amended bankruptcy plan, saying that the proposal lacks sufficient documentation to allow less-than-full payment to his debtors.

The former president of the California Correctional Peace Officers Association last summer offered a bankruptcy plan to pay back a portion of the $600,000 Novey owed against $355,000 in assets. The plan would have let Novey skip most of the $20,000 he owes to CCPOA, money intended to settle a messy dispute over allegations he breached his consulting contract with the union.

Union attorney Barry Spitzer has vigorously challenged Novey's bankruptcy plan, implying that he and his wife, Carol, have hidden some of their assets and understated the value of others to shield them from creditors.

For an example, you can read Spitzer's Sept. 21 cross examination of Novey in the "Exhibits in Support of Motion to Confirm Debtor's Second Amended Plan" that we've embedded below and linked here. Scroll down to PDF page 70.

(You'll find an interesting bit of the testimony that addresses Novey's split from the California Statewide Law Enforcement Association. When Spitzer asked why Novey received severance pay from the union's foundation in June of 2011, Novey said, "Their president thought it would be best that we part ways.")

The State Worker reached Novey by cellphone this morning and asked if he had a comment about the case.

"I didn't open the floodgates," Novey said. When asked if he thought CCPOA had a vendetta against him or was focused on forcing him to give up a Scottsdale, Ariz,, condo to settle his debts, Novey answered, "I don't know" to both questions.

Novey tried and failed to get his declaration sealed. Had the court agreed, much of the information in his bankruptcy would have been out of public view.

Bankruptcy Judge Thomas Holman last week said that Novey failed to appropriately estimate his future earnings, since he may receive money "contingent on the approval of various state agencies" from unspecified sources that would boost his income more than the $16,000 per month estimated in the bankruptcy plan. And even if the court accepted that figure, Holman wrote, Novey's expenses aren't enough to warrant stiffing unsecured creditors.

Holman also rejected Novey's claim of higher-than-normal utility bills and ruled that a Scottsdale condo that Novey and his wife, Carol, own is a luxury property and not an income-producing rental that should be shielded from creditors.

The judge's decision means that Novey will have to submit another bankruptcy plan to the court.

A Sacramento judge has refused to temporarily halt layoffs planned for the Department of Justice, leaving the path clear for about 80 employees to be shown the exits.

The Association of Special Agents, a subset of the California Statewide Law Enforcement Association, had sought the temporary restraining order from Judge Timothy Frawley. He turned the association down on Friday after hearing brief arguments from both sides.

Many DOJ employees heeded the layoff warnings last year and moved on to other jobs or retired. As of this morning, about 73 sworn officers and 8 non-sworn staff were in department jobs that will be eliminated, DOJ spokeswoman Lynda Gledhill said in an email to The State Worker.

DOJ will terminate those workers on Friday, said ASA President Mike Loyd.

"They'll be handed their final check, shown the door and told, 'Thanks for your service,'" Loyd said.

When asked whether the ASA would keep up the fight, Loyd said, "Heck yeah."

The association alleges that Gov. Jerry Brown engineered the elimination of about 300 jobs -- most of them held by special agents in the department's anti-drug unit -- in retaliation for CSLEA's support of Republican Meg Whitman during the 2010 California gubernatorial race.

The Brown administration blamed the job cuts on Republicans' tax inflexibility during budget talks.

With just 400 to 450 words for our weekly State Worker column, some of what we learn each week never sees print. Column Extras give you the notes, the quotes and the observations that inform what's published.

Today's State Worker column breaks down which unions are in and which are out of the court fight over furloughs. The California Correctional Peace Officers Association and the California Statewide Law Enforcement Association are the latest to lay down arms.

CCPOA spokesman JeVaughn Baker said that the weight of several court decisions favoring the state pushed the union to stop its litigation: "We decided it's in the best interest of the association to focus on other issues."

SEIU Local 1000 and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment also recently dropped their furlough litigation.

Meanwhile, the state's engineers and scientists are Alameda Superior Court No. RG10630312
Original petition: CCPOA v. Schwarzenegger (requires Java)

CSLEA's request for dismissal, Alameda Superior Court No. RG10507081
Original petition: CSLEA v. Schwarzenegger

CCPOA's request for dismissal: 9th U.S. Circuit Court of Appeals
Original Complaint: Newton v. Schwarzenegger

While two unions have settled the last remnants of their legal battles against state worker furloughs, two others continue to fight.

Professional Engineers in California Government and California Association of Professional Scientists filed opening arguments against furloughs in Alameda Superior Court on Friday. The unions are asking the court to set aside the furlough orders "to the extent that they were unlawful and the employees represented by Petitioners should be made whole for unauthorized reductions in their compensation."

Their arguments include two new twists.

The Association of Special Agents has filed for a temporary restraining order against Gov. Jerry Brown to stop the layoffs of its members at the Department of Justice.

The court filing, submitted Thursday in Sacramento Superior Court, is a new phase of the association's litigation against Brown. The group says that Brown targeted about 300 of its members for layoff in retaliation for their union's 2010 endorsement of Republican gubernatorial candidate Meg Whitman.

The agents are a subset of the California Statewide Law Enforcement Association.

The Brown administration has denied the ASA charge, saying that legislative Republicans' refusal to extend higher taxes triggered the cuts to Department of Justice jobs.

Here's the 329-page filing by ASA President Mike Loyd:
120123 ASA TRO

In case you missed it, the Associated Press has reported that the receivership overseeing the state's prison medical system needs to begin winding down:

A federal judge on Tuesday ordered California officials to prepare for the end of a six-year, court-ordered oversight of the prison system that has cost taxpayers billions of dollars and helped force a shift of lower-level criminals from state prisons to county jails.

U.S. District Court Judge Thelton Henderson cited improving conditions in the prison system in a three-page order that says "the end of the Receivership appears to be in sight."

The ruling marks an important milestone in a process that began nearly six years ago when the judge appointed a receiver to run California's prison medical system after finding that an average of one inmate a week was dying of neglect or malpractice. He cited inmate overcrowding as the leading cause, but said in Tuesday's order that conditions have improved.

... Henderson ordered Kelso, state officials and attorneys representing inmates to report by April 30 on when the receivership should end and whether it should continue some oversight role.

Here's Henderson's Tuesday order:
ORDER TO MEET AND CONFER RE: POSTRECEIVERSHIP PLANNING

The California Correctional Peace Officers Association has settled a discrimination and unfair treatment lawsuit brought by a former longtime employee whose husband had been a 2008 candidate for the union's presidency.

The terms of the settlement are confidential.

CCPOA spokesman JeVaughn Baker said that the union "rejects all of the allegations," but made a "pragmatic business decision" to settle.

"At some point you have to count the beans," Baker said this morning. "This is a low-level employment issue, an internal issue."

A call to former employee Sharon Rafferty's attorney, James E. McGlamery, wasn't immediately returned.

An Alameda Superior Court judge has pushed back a hearing to debate whether employees in five or six "special fund" departments were illegally furloughed.

Judge Frank Roesch originally scheduled Yvonne Walker and SEIU Local 1000 v. Schwarzenegger for hearing at the end of this month, with the first deadline for filing documents with the court set for Friday.

Click here for background on the case, which concerns employees at First 5 California, the Prison Industry Authority, the California Earthquake Authority, the California Housing Finance Agency and the Office of Administrative Hearings. Local 1000 is hoping to add the California State Lottery Commission to the list.

Local 1000 and the Department of Personnel Administration requested more time. Judge Patrick Zika granted it on Monday. The hearing is now scheduled for Feb. 16 The administration's brief in defense of the furlough policy is due Jan. 23. The union has until Feb. 2 to file its response.
Alameda furlough litigation continuance

A remnant of the "special funds" furlough litigation pressed by SEIU Local 1000 is set for a court hearing later this month.

The matter, Service Employees International Union Local 1000 and Yvonne Walker v. Arnold Schwarzenegger, revisits the union's argument that furloughs were illegally applied to departments that receive money outside of the general fund.

Local 1000 initially won that argument for 63 departments, but San Francisco's 1st District Court of Appeal in July overturned that ruling. It made exceptions for five departments that it said deserved further argument in the lower court: First 5 California, the Prison Industry Authority, the California Earthquake Authority, the California Housing Finance Agency and the Office of Administrative Hearing. Click here for more background.

The local asked the California Supreme Court to consider the case. It refused.

The case covering those five departments -- and a sixth that the union wants to bring into the case, the California State Lottery Commission -- gets its first court hearing on Dec. 29 at 3:45 p.m. in Alameda Superior Court in Oakland. The state has until Friday to file its arguments with the court. The union has until Dec. 23 to file a response.

We expect the Department of Administration, which handles furlough litigation for the state, to ask for a continuance, given the relatively short time between Alameda Superior Judge Frank Roesch's Nov. 22 order and the Friday deadline for the state's filing.
Walker and SEIU Local 1000 v. Schwarzennegger

The Association of Special Agents is suing Gov. Jerry Brown and Department of Finance Director Ana Matosantos over targeted Department of Justice layoffs that the agents contend are politically motivated. The agents group is an affiliate of the California Statewide Law Enforcement Association.

Click here for Kevin Yamamura's report on Capitol Alert. Read our recent story about the political history that prompted the association's complaint by clicking here.

And here's the complaint filed in Sacramento Superior Court today:
Association of Special Agents v. Jerry Brown

Another union furlough argument fell Monday when San Francisco's 1st District Court of Appeal told a trial court to change a favorable ruling to an unfavorable one against the California Correctional Peace Officers Association, which had claimed the policy as carried out for its members was an illegal pay cut.

The appellate court's decision in Brown v. Superior Court of Alameda County was a blow to the union whose 32,000 or so members stood to collectively gain millions of dollars -- no one is sure exactly how much -- in back pay and interest had the decision gone the other way. CCPOA says that it is deciding its next move in a case that stretches back more than two years.

CCPOA did win that argument in Alameda County Superior Court, claiming that "self-directed" furloughs -- which cut a prison officer's pay but deferred his or her corresponding time off -- violated state laws, including its minimum wage statute.

The appellate court action bogged down while attorneys for the union and then-Gov. Arnold Schwarzenegger argued over whether the trial court decision could be appealed and while other litigation that examined furlough authority and furlough process took the legal limelight.

Blog backs review your thoughtful and provocative online comments, amplify points, answer questions, correct our mistakes and humbly accept your warranted criticism.

Sharp-eyed blog user WilliesCons had a question about our post that the California Supreme Court had refused to take a "special funds" furlough case that SEIU Local 1000 had won at the trial court level and then lost when the government appealed. Weren't there some departments that the 1st District Court of Appeal said might still be in play for a successful "special funds" argument?

Make it three for three: San Francisco's 1st District Court of Appeal has reversed the lower court ruling in California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger that employees in so-called "special fund" departments were illegally furloughed, handing the Brown administration a win.

The ruling wasn't unexpected. The government won two similar appeals earlier this year in cases brought by the Union of American Physicians and Dentists and SEIU Local 1000.

Here's the nut of the appellate court's decision, announced late this afternoon:

"The judgment is reversed and the cause is remanded to the trial court with directions to: (1) recall the writ of mandate, (2) set aside the judgment granting the petition, and (3) conduct further proceedings as appropriate and enter a new judgment in conformity with this opinion. The parties shall bear their respective costs on appeal."

As noted on the State Worker Facebook wall after the appellate court heard the case Sept. 1, the justices asked virtually no questions of either side.

The California Correctional Supervisors Organization is suing to keep a retirement benefit for their members that it alleges the state has illegally eliminated. The organization represents managers and supervisors in the the California Department of Corrections and Rehabilitation.

The lawsuit, which is scheduled for hearing on Sept. 23, says that the state shouldn't have axed the Police Office Fire Fighter II retirement benefit for CCSO members when the Brown administration agreed with CCPOA to end the program. Under the so-called POFF II benefit, which was unique to CCPOA's contract, the state put money equal to about 2 percent of an employee's pay into a 401(k)-type fund.

As of Jan. 31, the plan had nearly 40,000 participants and $479 million in assets, according to CalPERS.

CCSO's lawsuit, filed in June, says that it was illegal for the state to unilaterally yank the benefit from its members. The state says that it gave CCSO a heads up but the organization didn't ask for a meeting to talk it over. And besides, the state says, the budget that lawmakers passed didn't carve out money to continue POFF II for CCSO members.

Click here to read CCSO's petition. This link opens the state's opposing response.

IMAGE: www.yolocourts.ca.gov

A court hearing scheduled for this morning in the multimillion dollar defamation lawsuit against the California Correctional Peace Officers Association has been delayed until Aug. 29.

The attorney for businessman Brian Dawe, who successfully argued that CCPOA ruined his livelihood, asked the judge for more time to file a brief opposing the CCPOA's request to put up a handful of properties the union owns as security in the case.

Under the new mutually agreed to timeline, attorney Daniel Baxter has until Wednesday to file the opposition brief. CCPOA will have until Aug. 22 to reply.

The union said last month that it didn't have enough cash to acquire a bond to cover an amount 125 percent above the $5 million award Dawe is due, pending appeal.

A jury original awarded Dawe $12.5 million, but Judge Lawrence Karlton, who heard Dawe v. Corrections USA, CCPOA, et al., lowered the award to about $5 million. While CCPOA and Corrections USA appeal the overall decision, Dawe is appealing the judge's lowering of the award.

The properties CCPOA has asked the court to accept as security include its headquarters, two homes in Natomas and land in Rancho Cucamonga.

The five-year-old case stems from when CCPOA ousted Dawe from the board of directors of Corrections USA. Dawe claimed the firing was unjust, and that CCPOA officials discredited him without merit. As a result, he said he was unable to earn a living and damaged his company, Flat Iron Mountain Associates.

110731 Dawe Notice

IMAGE: www.yolocourts.ca.gov

Don Novey, the former president of the California Correctional Peace Officers Association, will have to submit a new bankruptcy plan after a creditor and a trustee both objected to his first one.

Bankruptcy court Judge Thomas Holman's decision prolongs a proceeding that has highlighted Novey's bitter falling out with his former union, which fired him in 2009 over allegations he breached his consulting contract with the organization. Novey still owes CCPOA $20,000 from an arbitrated settlement, but he is seeking to shed that obligation and others through bankruptcy.

Union attorney Barry Spitzer has vigorously challenged Novey's bankruptcy plan, implying that he and his wife, Carol, have hidden some of their assets and understated the value of others to shield them from the proceedings.

The California Correctional Peace Officers Association has appealed a multimillion federal defamation lawsuit ruling to the U.S. Court of Appeals for the 9th Circuit in San Francisco, a move that has led the union to offer its West Sacramento headquarters and three other properties it owns as collateral for a multimillion judgment against it.

Lawsuit appellants normally have to post a "supersedeas bond" to cover 125 percent of the awarded amount. CCPOA's court filing says it can't because "it has insufficient liquid assets to satisfy bank requirements."

Judge Lawrence Karlton, who heard Dawe v. CUSA and lowered the $12 million awarded by a jury last fall to about $5 million, has the discretion to reset the bond amount or waive it entirely.

CCPOA says that its headquarters, the two Natomas homes it owns and the land it owns in Rancho Cucamonga are worth a total of $6.2 million. The union is offering them as security while the appeal goes forward. A hearing is scheduled for Aug. 1.

CCPOA is appealing a decision that its representatives defamed businessman Brian Dawe and his associates and damaged his livelihood. Attorney Dan Baxter, who represents Dawe, has cross-appealed Karlton's decision to reduce the award.

Click here for earlier posts about the case that include court documents and a transcript. Here's the union's request to use the property as security during the appeals process. (Hat tip to Blog User J for flagging this for The State Worker.)
CCPOA's Alternate Security Motion

With just 400 to 450 words for our weekly State Worker column, most of what we learn each week never sees print. Column Extras give you some of the notes, the quotes and the observations that inform what's published.

Our column in today's Bee notes that the California Correctional Peace Officers Association is both a debtor and a creditor.

Debtor: The state is restarting litigation to force the union to pay millions of dollars owed on its union paid leave tab with the departments of Mental Health and Corrections and Rehabilitation. The sides disagree on how much is owed.

Creditor: A lawyer representing the state's prison officers' union has filed several objections to a bankruptcy plan submitted by the former president of the state's prison officers' union that dumps tens of thousands of dollars in debt he owes.

Don Novey's plan would shed all unsecured debts, including the $20,000 he owes to the California Correctional Peace Officers Association from an arbitrated resolution to a contract dispute. Novey and his wife, Carol, owe much more than that in credit card and other unsecured debt, but CCPOA was the lone creditor to question the Noveys during a contentious bankruptcy hearing last week. This post has more details about the bankruptcy filing itself.

CCPOA attorney Barry Spitzer, whose questions during the hearing indicated he thought the couple undervalued or hid their assets, put his suspicions in writing and filed them with the court on Thursday.

"(CCPOA) hereby objects to the confirmation of the Debtors Chapter 13 plan as not being proposed in good faith," Spitzer wrote in a three-page document. Among his allegations:

>> The Noveys' gross income totaled more than $1.5 million from 2008 to 2010, during which time they didn't pay some taxes and ran up credit cards, "yet claim no significant assets." So where's the money?
>> The Noveys have overstated their IRS tax debt by about $30,000.
>> The Scottsdale, Ariz., condo they've claimed is a rental (and therefore protected property in bankruptcy) is actually a second home.

A hearing date is set for July 19 at 9:32 a.m.
Objection to confirmation of Novey bankruptcy plan

During a tense bankruptcy hearing this morning, the former president of the state's correctional officers association sparred with an attorney for his former union over everything from his earnings and property holdings to the value of sports memorabilia and jewelry.

Don Novey and his wife Carol Novey sat at one leg of a u-shaped conference table on the 7th floor of the federal courthouse in downtown Sacramento to go over their court filing with trustee Jan Johnson and to give creditors a chance to probe their finances.

Don Novey, the former head of the California Correctional Peace Officers Association, has filed for bankruptcy in Sacramento's federal court.

A May 17 court filing (see the link below) provides a window into the life of the former military intelligence officer and amateur boxer who has been credited with building one of the most powerful labor organizations in California. It also hints at what happened after CCPOA and Novey split amid accusations he had breeched his consulting contract with the union.

Reached today by phone, Novey declined comment. "I can't talk to you," he said.

Novey and his wife, Carol, filed for Chapter 13 protection, stating that their liabilities total $630,000 against assets of about $354,000. From December through May, which is the period of time the bankruptcy court is considering their income, Don Novey has earned an average $28,205 per month,which works out to an annualized earnings of about $338,470. Much of that income is exempt from creditors' claims.

That's down significantly from his 2008 income of $673,443 and the $576,225 he made in 2009.

Among the Novey's debts: $55,000 in federal taxes, another $27,000 in taxes owed to the state and unsecured debt of $181,000. Most of that is revolving lines of credit, but it also includes $20,000 owed to CCPOA from an "arbitration award," the bankruptcy filing shows.

Apparently that's money that Novey is paying after the union terminated his three-year, $150,000-per-year consulting contract late 2009 and then sued him. CCPOA alleged that Novey had spent time and used resources for other clients that should have been dedicated to CCPOA matters.

At the time, Novey linked the termination to his public criticism of CCPOA leaders' decision to suspend four retired union members. He also was publicly critical of the union's decision to hire a parolee, a move that was eventually upheld by the state's Office of Inspector General.

Mike Jimenez , CCPOA's current president, declined to comment on the Novey lawsuit during a May interview, citing terms of the stipulated settlement.

Novey's bankruptcy filing shows he's taken some real estate hits, too. He owes about $272,000 on loan taken out in 2009 on a Rocklin home he first purchased in 37 years ago. In 2006 Novey bought a condo in Scottsdale, Ariz., for $154,500. He still owes about $95,000 on it, but it's valued at just $48,000, according to the bankruptcy filing.

Novey, 63, retired from the CCPOA presidency in 2002 after more than 20 years in command. During his watch, union membership exploded as California built dozens of new prisons. Novey amped up the group's influence by using the millions its members provided to sponsor tough-on-crime ballot measures, elect legislators, punish political enemies and back union-friendly gubernatorial candidates.

But the falling out with his former union and his advice to several of his law enforcement clients to back GOP gubernatorial candidate Meg Whitman last year instead of the eventual winner, Democrat Jerry Brown, dinged Novey's reputation.

The case is scheduled for a hearing Thursday in Judge Thomas Holman's courtroom at 10:30 a.m.

Click here to download the 50-page bankruptcy filing.

San Francisco's 1st District Court of Appeal has upheld a lower court ruling that former Gov. Arnold Schwarzenegger illegally furloughed State Compensation Insurance Fund employees.

Department of Personnel Administration spokeswoman Lynelle Jolley said that she couldn't comment on either the decision or whether the Brown administration would continue to press the state's case, since attorneys still needed to review the ruling.

CASE v. Edmund G. Brown et al. started in San Francisco Superior Court as CASE v. Arnold Schwarzenegger et al. A little more than two years ago, Judge Peter Busch ruled that furloughing State Fund legal staff violated a law that protects the fund from "staff cutbacks."

Click here to read the appellate court's decision.

The appellate court also dismissed an appeal in a similar case involving State Fund employees covered by SEIU Local 1000, which leaves standing the lower court's decision in favor of the union.

The California Statewide Law Enforcement Association's quest to apply enhanced pension benefits retroactively died a quiet death last month after the state Supreme Court declined to consider the union's appeal.

The union had asked the court to review the decision of Sacramento's Third District Court of Appeal, which had ruled that the negotiated safety retirement benefits for Bargaining Unit 7 didn't apply to service prior to July 1, 2004.

The high court's April 27 declination ends a long battle over the benefit between CSLEA and the Department of Personnel Administration. Click here for more history on the case. This link opens the court's calendar of events in CSLEA v. DPA.

IMAGE: www.yolocourts.ca.gov

Peel away the legalese, and a 62-page lawsuit in Sacramento comes down to this accusation: Prison Receiver J. Clark Kelso -- with help from a federal judge, the state court administrative system and CalPERS -- is spiking his state pension with his federal salary.

Daniel E. Francis v. CalPERS contends that Kelso's employment agreement illegally washes his pay through the state Administrative Office of the Courts so that the money can be factored into his CalPERS pension. Kelso has said the arrangement, while unusual, is above board and legal.

Francis is a retired state worker and therefore a CalPERS member.

The Bee reported last year that when federal judge Thelton Henderson appointed Kelso to take over the state prison system's medical program in 2008, the California Prison Healthcare Receivership Corporation, the non-profit business arm of the receiver, and the AOC agreed to put Kelso on the AOC payroll.

Technically, Kelso is on loan to the federal court. The receivership corporation reimburses the AOC for Kelso's pay and benefits. Ultimately, the state pays the receivership's costs.

Kelso has worked in various capacities for the state, so he was in CalPERS before taking the receiver job. In an interview with The Bee last year, he was open about his AOC employment agreement and his desire to remain in CalPERS while working as a federal court appointee. He said that the arrangement was legally vetted and doesn't break any laws.

At least one former state employee who was already working for the nonprofit when Kelso came onboard, Linda Buzzini, tried and failed to get her pay retroactively applied to her CalPERS retirement.

The plaintiff wants the court to revoke Kelso's CalPERS membership as an employee of the AOC.

Here's the court filing:

Editor's note, 4:08 p.m.: The broken link on this post has been repaired, and the item is updated with more information from the court hearing this morning.

Attorneys for labor and the government met in San Francisco this morning to argue whether state workers in so-called "special fund" departments should have been exempt from furloughs that were put in place during Gov. Arnold Schwarzenegger's administration.

The 1st District Court of Appeal heard arguments but didn't hand down its ruling today, said Lynelle Jolley, spokeswoman for the Department of Personnel Administration.

The court has 90 days to make a decision. In this case, it could rule for one side or the other or return the matter to the Alameda trial court for further argument and a ruling there.

We reported on Wednesday that a federal judge has reduced what the California Correctional Peace Officers Association must pay for punitive damages in a defamation case from $10 million to about $2.5 million. Judge Lawrence Karlton's Dawe v. Corrections USA, CCPOA, et al. decision can be challenged by the plaintiffs with either a new trial that focuses on the punitive phase of the case or taken to the 9th Circuit Court of Appeal.

Here's Karlton's order:
Judge's ruling on damages awarded in Dawe v. CUSA, CCPOA
IMAGE: www.yolocourts.ca.gov

A federal judge has reduced a $10 million punitive damages award leveled against the California Correctional Peace Officers Association last year, although the plaintiffs in the case can appeal the reduction or seek a new trial that focuses on what the award should be.

Sacramento Federal Court Judge Lawrence Karlton rendered the decision last week, cutting what was a total $12.5 million decision against CCPOA -- compensatory and punitive damages awards combined -- to about $5 million.

The decision is the latest turn in Dawe v. Corrections USA, CCPOA, et al. Last October a jury unanimously found that CCPOA had spread falsehoods about Brian Dawe, a founder and former executive director/treasurer of Auburn-based Corrections USA.

CUSA is a national law enforcement coalition, and CCPOA is a member. The union eventually took over the organization's board then ousted Dawe five years ago after he raised questions about the coalition's finances.

Dawe successfully argued that the unjust firing and remarks by CCPOA officials and publications issued to explain his departure hampered his ability to earn a living and damaged his company, Flat Iron Mountain Associates. The jury awarded Dawe and his $2 millionin compensation. Another former Corrections USA employee involved in the matter, Gary Harkins, won a $315,000 defamation compensation claim against the union.

But Karlton took issue with the jury's punitive awards: $9 million to Dawe and his firm and another $1 million to Harkins. The judge lowered those amounts to match the compensatory awards. The punitive damages were "unconstitutionally excessive," Karlton said, noting that CCPOA's net worth was a factor in his decision.

That's not the end of the matter, however. Karlton gave the plaintiffs three weeks to ask for a new trial to argue for a higher punitive damages award. They also have the option to appeal Karlton's decision to a higher court.

Plaintiffs' attorney Dan Baxter couldn't be reached by phone, but he sent the following e-mail in response to a message we left with his office:

Retired state worker Michael Desrys, a former Caltrans employee, has sued three former CalPERS officials and drug-benefits provider Medco, alleging that a deal cut between the defendants led to members paying "excessive amounts of money for their medications purchased through Medco." As Bee colleague Dale Kasler reports in this story, Desrys is seeking class-action status for the case.

Revelations by a CalPERS investigator last week led the fund's board to decide it will take its prescription drug business elsewhere.

Several folks who read Dale's story e-mailed requests that we post the Desrys complaint. Here it is:
Desrys v. Medco, et. al

This just in: Gov. Jerry Brown has dropped a lawsuit filed by former Gov. Arnold Schwarzenegger that asserted his right to impose a minimum wage order on state workers during a budget stalemate.

Colleague Susan Ferriss has the details over at our sister blog Capitol Alert.

An appeals court has set a Feb. 23 hearing to debate whether state workers in so-called "special fund" departments have been illegally furloughed.

SEIU v. Schwarzenegger involves three Alameda Superior Court decisions that determined furloughs for special-fund departments were irrational, arbitrary and interfered with those departments' ability to legally function. The rulings, which were consolidated when Gov. Arnold Schwarzenegger appealed his loss to San Francisco's 1st District Court, affected employees covered by SEIU Local 1000, the Union of American Physicians and Dentists and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment.

The case went on hold while the California Supreme Court took up PECG v. Schwarzenegger, which involved the larger question of whether the governor could unilaterally impose furloughs. (No, the court said on Oct. 4, but the Legislature can and did by approving a budget that assumed furlough savings.)

Then the 1st District Court told the SEIU parties to submit new arguments in light of PECG. They did, so now we have a hearing date. Whether it will go off isn't clear. The Brown administration has asked for hearing delays in other labor litigation, including another furlough case (involving State Compensation Insurance Fund employees) with the 1st District Court. The court granted the delay in that matter.

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The Orange County Board of Supervisors has lost an appeal to invalidate a 2001 labor pact that retroactively gives county deputies a 3 percent at age 50 formula for retirement. The county has argued the agreement violates provisions of the California Constitution.

The decision by the 2nd District Court of Appeal in Los Angeles, published today, is a big win for the Association of Orange County Deputy Sheriffs. The union also had CalPERS and Jerry Brown, in his former capacity as Attorney General, on its side.

After approving the initial contract in 2001 and renewing it three times, the board shifted positions in 2008. Worried about the $187 million price tag of retroactively applying the enhanced formula, the county filed a lawsuit against the pension's board. Eventually the deputies' union joined the lawsuit.

The case raised several legal issues, but the biggie focused on article XI, section 10 of the state constitution, which prohibits payment of extra compensation to public employees. The county said that applying the formula bump to service years before 2002 amounted to "extra compensation to public employees 'after service has been rendered.' "

The court's three-justice panel said, in essence, "A deal's a deal; live with it."

Here's the ruling. (Hat tip to Blog User E for flagging this.)

Enhanced retirement benefits can't be applied retroactively for state workers represented by the California Statewide Law Enforcement Association, a state appeals court has ruled.

The decision by three justices in Sacramento's 3rd District Court involves a dispute over the terms of a 2002 contract between the union and the state Department of Personnel Administration that raised the retirement formula for about half of the union's 7,400 or so members from 2 percent at age 55 (the so-called "miscellaneous" employee formula) to the state "safety" employee pension plan that allows 2.5 percent at age 55.

The union maintained that the contract called for the safety formula's retroactive application to former miscellaneous employees' first day of service. The administration countered that the upgraded benefit should apply only for service on July 1, 2004, and later.

An arbitrator in 2008 sided with the union and a Sacramento Superior Court judge confirmed the arbitration award.

But the appellate court decision by Justices George Nicholson, Kathleen Butz and Arthur Scotland agreed with the administration's contention that the contract couldn't be retroactively enforced because the impact of that policy wasn't sufficiently analyzed:

The MOU presented to the Legislature did not contain language that the change to safety member status would apply retroactively to convert prior miscellaneous member status to safety member status; (the legislation) was "silent" as to whether the benefit would apply retroactively to prior service; and the Legislature was not provided with a fiscal analysis of retroactive application of the agreement.

Union spokesman Kasey Clark said that CSLEA hasn't decided whether to appeal the 7-year-old case. Last month the union thought it had a contract that included pension and pay concessions, only to see it yanked off the table by the Schwarzenegger administration at the last minute.

"We understand this isn't a good time for courts to be reviewing pension enhancement cases," Clark said this afternoon. "Obviously, a contract like this wouldn't be negotiated right now."

Here's the court's decision, which was published today:

SEIU Local 1000 has asked to join the legal fight to keep the state from selling 11 properties that former Gov. Arnold Schwarzenegger put on the sales block to help close California's budget deficit. Gov. Jerry Brown criticized the plan when he was running for office, but earlier this month said that he is weighing whether to continue the previous administration's sale lease-back plan because ending the deal would increase the state's budget gap by about $1 billion.

As the union notes in the amicus brief (embedded below) filed in the 6th District Court of Appeal in San Jose, state custodians would lose their jobs if the building sale goes through because the buyer, California First LLC, intends to use private sector employees to perform those duties.

Meanwhile, the state has pushed back the layoff date for employees affected by the pending sale. Originally their positions were set for elimination on March 30. The new date is May 1. (Click here for a previous post about the pending layoffs.)

Fans of William Shakespeare will appreciate union attorney Anne Giese's reference to "King Lear" to fortify her argument that the sale is illegal, and foolish to boot:

Since the actions of Schwarzenegger -- during repeated budget crises -- frequently appeared like tragedies of Shakespearean proportions, it is fitting, then, to compare his poor real estate decisions to those of King Lear.

You can read the rest of her analogy here. Scroll down to PDF page 9:

Newton v. Schwarzenegger is set for hearing in San Francisco's U.S. District Court today at 10 a.m.

The class-action case, which applies only to members of the California Correctional Peace Officers Association, is challenging furloughs as a violation of the Fair Labor Standards Act. The arguments in this December 2009 complaint include:

• Cutting pay but deferring the furlough time off violates the law because employees aren't paid in full for hours worked within a given pay cycle.
• Time worked on an unpaid furlough day should be calculated in figuring overtime.
• The state hasn't kept adequate payroll records.

The state says in its last brief that CCPOA doesn't have standing to file suit, that there's no material fact establishing that employees haven't been compensated for all hours worked and that the assigning the eventual time off is a form of compensation under federal law.

There's a slew of documents in the case. CCPOA has posted a few on its website, but the rest are only available online through the court's electronic document system, and you have to register and then pay document fees.

Or you can look at the last two briefs that lay out each side's arguments via The State Worker's Scribd embeds:

A Sacramento Superior Court judge on Tuesday ruled that a multimillion dollar lawsuit filed by the state against the California Correctional Peace Officers Association can proceed.

The union had argued that the matter -- which involves money CCPOA owes the state to reimburse wages and benefits paid for members on leave to do union business -- should go to arbitration as provided in their expired contract.

The state, specifically the Department of Mental Health, the Department of Personnel Administration and (mostly) the Department of Corrections and Rehabilitation, said that the deal to continue union paid leave was a separate agreement, so a taking the matter up in court was appropriate.

(For more details and links to court documents, you can start by clicking here.)

On Tuesday, the court agreed with the state. Here's the tentative ruling, which was subsequently affirmed Tuesday afternoon.
CDCR v. CCPOA

The 1st District Court of Appeal has lifted an decision that stopped union challenges to Gov. Arnold Schwarzenegger's last furlough order, referring the matter to Alameda Superior Court for more litigation as that court "may deem appropriate."

The matter landed in the appellate court after Judge Steven. A. Brick's Aug. 8 ruling that Schwarzenegger couldn't relaunch three-days-per-month furloughs for roughly 144,000 state workers because the order violated state laws.

The governor quickly asked the appellate court to put a hold on the lower court's decision and allow furloughs to proceed. The appellate court denied that request, but the California Supreme Court, which by then was knee deep in furlough litigation, took the case and then allowed furloughs to resume.

On Oct. 4 the high court ruled that Schwarzenegger's 2009 furloughs were illegal but that the Legislature tacitly approved them in subsequent budget legislation. It didn't rule on the latest furlough case, however, and in November returned the matter to the 1st District Court of Appeal.

Now the appellate court has passed the case -- which is actually a consolidation of lawsuits by Professional Engineers in California Government, SEIU Local 1000 and six other employee groups -- back down to the Alameda court. (Click here for a list of all the parties involved.)

It's not clear whether either side should take heart from the appellate court's action, but you can be certain that there's more litigation ahead.

Just don't count on SEIU Local 1000 to be part of the proceedings. Its new contract accepted the last round of furloughs from August through October.

Here's the appellate court's instructions to the trial court:

In light of (1) the California Supreme Court's decision in Professional Engineers in California Government v. Schwarzenegger (S183411, October 4, 2010), (2) the enactment of the Budget Act of 2010, (3) the motion filed by plaintiffs in the California Supreme Court on October 26, 2010, and (4) any other potentially relevant development, the temporary restraining order that is the subject of the appeal in this action is vacated and the matter is remanded to the superior court for such further proceedings as the superior court may deem appropriate in light of these intervening developments.

Click here to read the appellate court docket, which shows the up-and-down history of the case.

The ongoing union paid leave dispute between the state's prison officers' union and the California Department of Corrections and Rehabilitation is entering a new phase next week, when a Sacramento court will rule whether the the matter should go to binding arbitration.

The Schwarzenegger administration has filed its last reply in UAPD v. Schwarzenegger, which is before San Francisco's 1st District Court of Appeal.

Gov. Arnold Schwarzenegger hopes the justices will invalidate Alameda Superior Court Judge Frank Roesch's ruling that Schwarzenegger illegally furloughed employees in so-called "special fund" departments.

Administration attorney David Tyra's filing repeats an argument that he has made in this and similar cases, namely that the California Supreme Court's PECG v. Schwarzenegger ruling covers the issues raised in the UAPD case.

Since neither the high court decision nor legislation parsed special fund department furloughs and general fund department furloughs, Tyra contends, the Supreme Court's ruling and the Legislature's actions were a de facto approval of (mostly) across-the-board furloughs.

UAPD has argued that the Supreme Court's PECG ruling only settled the question of who has the authority to furlough (the Legislature does), but didn't address the process of furlough. The union wants the appellate court to uphold the Roesch decision.

Click here for an earlier post with a link to UAPD's brief. This link opens the appellate court's docket. We've posted the administration's Dec. 14 filing below. The court has not set a date for hearing this case.

UAPD v. Schwarzenegger Appellants' Supplemental Reply Brief

Editor's note, 2 p.m.: We have added a Scribd version of the Dec. 7 CASE court filing to the end of this post.

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment filed a letter brief last week with San Francisco's 1st District Court of Appeal.The union's aim: convince the justices to return a so-called "special funds" case to the trial court with "directions to reconsider its ruling in light of the (California) Supreme Court's decision."

CASE attorney Patrick Whalen's 13-page letter is a response to a Nov. 22 brief filed by the Schwarzenegger administration that argues for killing the case.

Whalen contends that the high court's ruling in PECG v. Schwarzenegger, which said the state Legislature tacitly approved furloughs by assuming payroll savings from the policy in its budget actions, left open many questions that need to be hashed out in the lower court.

CASE makes these arguments:

The U.S. 9th Circuit Court of Appeals has overturned a lower court's decision that SEIU Local 1000 didn't appropriately notify members and fair-share payers when it temporarily raised fees in 2005 and 2006.

The union raised about $12 million from the fee increase. Local 1000 attorney Anne Giese said this afternoon that if SEIU lost, it probably would have paid "nominal damages" of about $1 per union member.

The plaintiffs can ask the U.S. Supreme Court to review the 9th Circuit ruling, but the high court rarely accepts such requests.

Justices David R. Thompson and Sidney R. Thomas ruled in favor of the union with Justice J. Clifford Wallace dissenting.

The lawsuit was backed by the National Right to Work Legal Defense Foundation, which describes itself as "nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by abuses of compulsory unionism."

We'll knit together the essentials of the case from the 43-page court decision that we've Scribd at the end of this post:

Editor's note, 1:05 p.m.: This post now includes a link to Schwarzenegger's Nov. 29 brief filed with the 1st District Court of Appeal.

An attorney representing Gov. Arnold Schwarzenegger argued in a letter Tuesday to an appellate court that State Compensation Fund employees were legally furloughed last year.

David Tyra, the governor's hired legal gun to handle the multitude of litigation sparked by furloughs, contends that a lower court's ruling in CASE v. Schwarzenegger doesn't hold up in light of an October decision by the California Supreme Court.

The lawyers for California Attorneys, Administrative Law Judges and Hearing Officers in State Employment have until Dec. 23 to file a rebuttal.

The matter has traveled up and down the court system. You have to understand its history to understand Tyra's argument.

Lots of ground to cover here: three unions, three lawsuits, four court filings and plenty of links to prior State Worker posts for background. Hang on.

CCPOA v. Schwarzenegger
The Schwarzenegger administration filed this brief on Tuesday in response to CCPOA's Nov. 19 filing to San Francisco's 1st District Court of Appeal. Gov. Arnold Schwarzenegger and the prison officers' union are battling over an Alameda judge's decision that "self-directed" furloughs are illegal.

The big question with this furlough case and the other two we'll mention is this: Given the California Supreme Court's October furlough decision that the Legislature tacitly approved furloughs through budget legislation, is the lower court litigation still worth considering?

Click here and then here for more background on CCPOA v. Schwarzenegger. Both posts have plenty of history and links to earlier key court documents.

There's no oral argument date set for this case.

We told you on Tuesday that minimum wage litigation has been delayed between Gov. Arnold Schwarzenegger (who insists that state workers' pay must be withheld during a budget impasse) and Controller John Chiang (who says his computers and the state's pay rules make it impossible).

Here's why: The Schwarzenegger administration requested it.

Court documents in the case amount to finger pointing by both sides about why attorneys won't be ready for the now-canceled Nov. 29 hearing. Here's what the Department of Personnel Administration's attorney, Suzanne Solomon, said in this Nov. 12 request for Sacramento Superior Court Judge Patrick Marlette to postpone the hearing:

A key court date set for the end of this month in the state worker minimum wage case has been postponed with no new date set.

Judge Patrick Marlette had scheduled the minimum wage hearing in Sacramento Superior Court for Nov. 29. The two sides were supposed to present evidence about whether the controller has the computer capacity to pay state employees minimum wage during a budget impasse.

The delay injects new uncertainty into the legal battle between the lame duck Schwarzenegger administration and Controller John Chiang. Gov. Arnold Schwarzenegger leaves office in January, and it's difficult to envision a lower court decision in the minimum wage litigation before that.

And even in the unlikely event that happens, the matter would drag well past January -- and into Gov.-elect Jerry Brown's term -- if the losing side appealed a December ruling.

Chiang has twice refused to withhold state worker pay, contending that the state's payroll technology and state payroll procedures prohibit it. Schwarzenegger has said the controller is defying established case law and cannot assume failure.

According to this court document, both sides agreed to put off the hearing:

After some discussion with all counsel, it was agreed that the November 29, 2010. Evidentiary Hearing would be vacated. The Court ordered that counsel meet and confer regarding trial dates and a briefing and discovery schedule.

We've asked the controller and the Department of Personnel Administration to explain what happened and whether this means Schwarzenegger is handing the issue off to Brown. We'll let you know what we hear.

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Editor's update, 8 p.m.: This post now includes a Scribd download of the CCPOA brief filed with the 1st District Court of Appeal.

The California Correctional Peace Officers Association filed a 42-page brief on Friday, arguing that the California Supreme Court's furlough ruling last month didn't wipe out an Alameda judge's earlier ruling that "self-directed" furloughs are illegal.

"The governor says that the (Supreme Court's) ruling is a big blanket that you can throw over all furloughs," said Gregg Adam, one of the attorneys with San Francisco law firm Carroll, Burdick & McDonough, which represents CCPOA. "Obviously, we disagree."

Self-directed furloughs deduct an employee's pay at the furlough rate of roughly 15 percent per month, but the time off is deferred. The 32,000 or so correctional officers represented by CCPOA continue to work under self-directed furloughs. They're among the roughly 63,000 state workers represented by unions without current labor pacts.

Alameda Superior Court Judge Frank Roesch ruled that self-directed furloughs are illegal. Schwarzenegger appealed the ruling to San Francisco's 1st District Court, where it was on hold until the state Supreme Court ruled on furloughs last month.

The appellate court then asked the governor and the prison officers' union to update their arguments in light of the high court's decision. Schwarzenegger opened with a Nov. 9 filing (click here to read more about it).

CCPOA's response includes these arguments:

SEIU Local 1000 filed a supplemental brief in San Francisco's 1st District Court of Appeal last Friday. It's a response to Gov. Arnold Schwarzenegger's Nov. 8 filing that argues the California Supreme Court's furlough decision knocked out an Alameda judge's ruling that forcing unpaid days off on so-called "special fund" departments is illegal.

Local 1000 attorney Felix De La Torre's 19-page letter brief makes several arguments:

A state appeals court should reverse a lower court's ruling that state workers in "special fund" departments were illegally furloughed, an attorney for Gov. Arnold Schwarzenegger argues in documents filed this week in San Francisco.

Attorney David Tyra contends in two mirror-image briefs submitted to the 1st District Court of Appeal that last month's furlough decision by the California Supreme Court "fully disposes of the issues" raised in SEIU Local 1000 v. Schwarzenegger et al. and UAPD v. Schwarzenegger et al..

Nearly a year ago, Alameda Superior Court Judge Frank Roesch ruled in both cases that furloughing employees in departments funded entirely or in part with money outside the general fund was an "arbitrary, capricious and unlawful" act. He then ordered those workers returned to full hours and pay. Schwarzenegger immediately appealed, which kept furloughs in place.

Then the state Supreme Court ruled on Oct. 4 that the Legislature had tacitly approved Schwarzenegger's furloughs, which made the policy legal. On Oct. 7, the 1st District Court issued a letter to both state and union attorneys about the SEIU and UAPD cases:

Dear Counsel: As you are undoubtedly aware, on October 4 the Supreme Court filed its opinion in Professional Engineers in California Government v. Schwarzenegger, S183411. Should you conclude that the opinion does not resolve all issues in this appeal, the Court has directed me to inform you that additional briefing addressing the impact of the Supreme Court's decision may be submitted according to the following schedule. Appellants may file an initial supplemental brief no later than November 8, 2010. Respondent may file its brief on or before November 19, 2010. Appellants may file a reply brief no later than November 30, 2010.

That same day, the appellate court set a briefing schedule for California Correctional Peace Officers Association v. Schwarzenegger, another Roesch furlough ruling appealed by the governor. Click here for our recent post about that appeal.

The 1st District Court hasn't yet set a date for oral arguments in any of the cases.

What follows is Tyra's 10-page SEIU brief , which essentially says that applying the guidelines set down by the Supreme Court's ruling undercuts the Roesch decisions. (This link opens a virtually identical Tyra brief addressing the UAPD case.)

Plaintiff's brief in SEIU Local 1000 v.Schwarzenegger

An attorney for Gov. Arnold Schwarzenegger said that the California Supreme Court's Oct. 4 furlough decision has invalidated a lower court's furlough lawsuit ruling in favor of the California Correctional Peace Officers Association.

David Tyra, the administration's lead furlough lawsuit lawyer, argued in papers filed on Monday that the high court's decision settles all of the issues raised in CCPOA v. Schwarzenegger, et al..

CCPOA successfully argued to Alameda Superior Court Judge Frank Roesch that "self-directed" furloughs of prison staff and other state workers at 24/7 facilities violated labor law that stipulates compensation must be paid within a given pay cycle. The union maintained the policy is illegal because workers under self-directed furloughs may lose their pay but not take the time off for weeks, months or years.

The law also requires payment rendered in cash, but unredeemed furlough time after June 2012 would have no value, and that was illegal too, CCPOA said. After losing the case and appealing Roesch's ruling to San Francisco's 1st District Court, the administration extended the furlough redemption time indefinitely. It also said that furloughs violated provisions of the Labor Code.

Three days after the state Supreme Court issued its decision that the Legislature tacitly approved Schwarzenegger's furloughs through language tucked into a February 2009 budget bill, the 1st District Court asked the administration and CCPOA to submit arguments on how the Supreme Court's ruling impacted CCPOA v. Schwarzenegger.

Tyra filed his 15-page letter on Monday. His argument, in sum: The Supreme Court said that the Legislature OK'd the governor's furloughs as they existed, making all of CCPOA's arguments moot. The Labor Code argument doesn't hold up, either, because that law doesn't apply to state employers and employees.

The union has until Nov. 19 to respond. The governor may file a reply brief no later than Nov. 30. The court hasn't set a date for oral arguments.

Click here to read the Tyra brief. He also filed a brief in the 1st District Court for Service Employees International Union Local 1000 et al. v. Schwarzenegger et al., which concerns the legality of furloughing "special fund" department employees. We'll have that posted this afternoon, so check back.

The California Supreme Court's decision in Professional Engineers in California Government v. Schwarzenegger is now final.

A month ago, the court unanimously ruled that Gov. Arnold Schwarzenegger didn't have authority to force state workers to take time off without pay. But, the court said, the Legislature does have that power and tacitly conferred it on Schwarzenegger with budgets that approved the policy.

Since the ruling didn't take effect until now, the administration continued furloughs. The Legislature then approved a 2010-11 budget explicitly and retroactively deputizing the governor to furlough employees whose unions don't have contracts.

Click here to see the court's notice of remittitur on the docket, which signals the official close of the case.

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As we reported last week, documents aren't publicly available that detailed the California Correctional Peace Officers Association's budgets and balance sheets in an Oct. 22 federal court hearing that produced a $10 million punitive damages verdict against the union. (That was in addition to about $2 million in actual damages the jury concluded CCPOA should pay.)

But the transcript of the Dawe v. CUSA, CCPOA hearing wasn't shielded. The State Worker acquired 60 pages of key testimony. They're posted below.

The conversation touches on a number of subjects, such as the decline of CCPOA's net worth; homes, cars and sports season tickets it has purchased; the union's employee payroll costs; property it owns in Southern California; member dues; the union's legal costs; it's fight with the state over union paid leave; unspecified political spending and more.

Before you start reading, here's the cast:

Mr. Nicolaysen - CCPOA chief financial officer Jeff Nicolaysen
Mr. Baxter - plaintiff Brian Dawe's lawyer Daniel Baxter
Mr. Mastagni, Sr. - David Mastagni, Sr., attorney for CUSA and CCPOA
Court - federal Judge Lawrence Karlton

101101 Jeff Nicolaysen Testimony

The California Correctional Peace Officers Association has lost its appeal of a lower court ruling that found the state wasn't forcing correctional officers to work overtime without pay. Here's a bit of background from the 1st District Court of Appeal's decision:

In 2009, Kurt Stoetzl, a CCPOA member, and the CCPOA filed a first amended complaint seeking injunctive relief and backpay. In their first amended complaint, plaintiffs alleged that Unit Six employees routinely worked eight hours and 12 minutes per day, or a 41-hour workweek. Plaintiffs further alleged that defendants had a statutory obligation, under section 19851, to compensate Unit Six employees for time worked in excess of eight hours per day or 40 hours per week at an overtime rate, and failed to do so.

Presiding Justice Barbara Jones and associates Terence Bruniers and Henry Needham upheld the lower court's ruling. Here's one reason:

A fundamental flaw of plaintiffs' arguments is that they presume that there must be a trigger for overtime compensation under state law that is more protective of public employees than what is provided by the (Fair Labor Standards Act). However, plaintiffs provide no authority for this underlying premise and we know of none. Plaintiffs seem to rely on a general assumption that any work in excess of eight hours per day or 40 hours per week constitutes "overtime," automatically triggering a requirement for additional compensation. With respect to private sector employees, overtime compensation is regulated by various Industrial Wage Commission wage and hour orders and Labor Code section 510. Labor Code section 510, subdivision (a), provides in relevant part: "Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee." However, state and local government employees are exempted from the overtime rules applicable to private sector employees.

Click here to download the court's 17-page ruling. The decision comes one week after a federal jury rendered a $12 million defamation verdict against CCPOA. The union says it will appeal that decision.

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Several State Worker blog users have e-mailed to ask why we haven't posted CCPOA financial documents used in federal court last week to give jurors a sense of the union's net worth before they rendered a $10 million punitive damages verdict in the case, Dawe v. Corrections USA, CCPOA and others.

Here's the answer: We can't get them.

The State Worker has accessed the 7-page court document that details a federal jury's $10 million punitive damages verdict in Dawe v. Corrections USA and CCPOA. You can view the verdict by clicking this link.

The same jury decided that CCPOA should pay $2 million actual damages.

CCPOA has said it will appeal. The union has posted on its website an open letter explaining its side of the matter. The letter says that, "If there are any damages, those will not need to be paid until the appeal is complete - probably years from now." It also assures members that the union isn't bankrupt.

Bee columnist Dan Morain observes in today's Bee that, "The once-mighty California Correctional Peace Officers Association has fallen far." This link opens his column. Clicking here opens our report last week about the Dawe verdict and revelations in court about CCPOA's assets, revenues and spending.

The California Correctional Peace Officers Association owns two homes in Sacramento, bought half the seats in an Arco Arena luxury suite as well as season passes to the local Triple A baseball team and purchased eight new vehicles last year, according to a federal court hearing this morning.

The inside glimpse into how the prison officers' union has spent its money was part of the punitive damages phase of Dawe v. Corrections USA, CCPOA, et al.. CCPOA is already on the hook for $2.3 million in damages after a jury on Monday found it guilty of defamation. Now the jury must determine how much in punitive penalties, if any, CCPOA will pay after losing the 3-year-old case in Sacramento.

(This is a very complex case, as evidenced by this 27-page verdict. For more background than we can share here, click here for Brian Dawe's side of the story and click here for CCPOA's version. )

Among the union financial figures presented at the morning hearing:

With all of the historic events of the last two weeks -- action on the state budget, the SEIU labor deal and the California Supreme Court decision on furloughs -- we almost forgot about another high-profile issue that's not yet resolved: state worker minimum-wage litigation.

Sacramento Superior Court Judge Patrick Marlette has scheduled Endsley v. Chiang for oral argument on Jan. 7. If Marlette's past decisions on furloughs and minimum wage are a guide, he'll issue a tentative decision ahead of the January hearing and then, unless an argument changes his mind, he'll quickly issue a final decision.

Between now and then, there's a Nov. 29 "evidentiary proceeding" during which witnesses will testify, possibly for an entire week. Each side will then submit more documents to Marlette, which he'll consider in the days leading up to oral arguments.

We don't know yet what the California Supreme Court will say about furloughs this morning, but we do have a sense of how the court reached its decision.

Here's a quick sketch of how the court writes its rulings:

Wednesday's California Supreme Court hearing is dead ahead, set for Wednesday morning at 9 a.m. and scheduled to run for 90 minutes. Here's a previous post with details about how you can watch the oral arguments in Professional Engineers in California Government v. Schwarzenegger on TV or the Internet.

It's been a long road to this key moment. Looking back at the 1,900 posts on this blog since it started a little over two years ago, references to the state Supreme Court taking and furloughs case go back to early 2009. We're talking about 60 items on The State Worker.

We'll be attending the hearing. Between now and then, we'll be looking through past stories and court filings leading up to the case and writing a bit for tomorrow's Bee. If you want to do the same, here are some links. Many of the blog posts link to court filings or other pertinent info:

Attorneys representing Controller John Chiang and the Department of Personnel Administration met in Sacramento Superior Court on Thursday to debate several highly technical minimum wage issues. The two sides are moving toward a full hearing on whether the controller can refuse to comply with DPA's instruction to withhold state workers' pay to the federal minimum allowed during the budget impasse.

Nothing that Judge Patrick Marlette heard changed his mind. The tentative ruling he issued on Wednesday stands as the his final decision. It sets the framework for the legal issues that are in play as the two sides now fully engage in the minimum wage compliance debate.

Next up: Another status hearing on Sept. 23. Look for the governor's side to push for a quick hearing date, while Chiang's lawyers will likely argue for a later date so that they can have more time to prepare.

As we reported here, CalPERS and CalSTRS have filed a Petition for Writ of Mandate to the state Supreme Court, seeking to block Gov. Arnold Schwarzenegger's July 28 furlough order.

Click here to download the 126-page brief.

Let's catch up on lawsuit news.

Professional Engineers in California Government andCalifornia Association of Professional Scientists have filed a lawsuit in Sacramento to stop Gov. Arnold Schwarzenegger's latest furlough order. CalPERS and CalSTRS have jointly filed a Petition for Writ of Mandate with the state Supreme Court with the same aim. Here's an internal memo sent Monday to CalPERS employees from fund CEO Anne Stausboll that lays out the details:

Judge Patrick Marlette has published his tentative ruling on several legal criticisms of the Department of Personnel Administration's pay letter that ordered state worker pay withheld to the federal minimums allowed until lawmakers craft a budget.

It's a complicated document that assumes an understanding of the issues raised by State Controller John Chiang and the rebuttals offered by DPA. To sum up, DPA wins some arguments and some issues were left open to more litigation, which keeps alive some of Chiang's objections to the order.

Example: Chiang said that state workers' pay should be withheld at the California minimum wage rate instead of the federal minimum ordered by DPA. Marlette sided with DPA.

Example: Chiang contended that executing the minimum wage order would lead to Fair Labor Standards Act violations. Marlette left that question open to more litigation.

The two sides will meet in court Thursday at 1:30 p.m. to argue points and set deadlines for filing more papers. Marlette could also also set a hearing date to debate whether Chiang's office has the capacity to execute the minimum wage order. None of the items addressed in Marlette's tentative ruling today will keep the court from considering that issue.

Want to get deeply into today's ruling? Here's how:

Click here to open Chiang's cross-complaint.
Click here to open DPA's rebuttal.
Click here to open Marlette's tentative ruling. You'll need to cross reference the first two documents to understand the judge's decisions.

As noted in this July 26 post, Gov. Arnold Schwarzenegger's tussle with Controller John Chiang over state worker minimum wage will see some court action this week.

Look for Judge Patrick Marlette to issue a tentative ruling by this afternoon on several technical legal points raised by Chiang about the governor's July 1 minimum wage order.

Here's an example from filed Chiang's 28-page cross-complaint:

Some state employees covered by the Pay Letter are paid salary or wages from continuing appropriations or from other funding sources not requiring legislative action. The Pay Letter fails to exempt those employees from its terms or otherwise to provide the Controller with lawful instructions regarding payment to such employees, contrary to state law.

Now we wait.

Attorneys representing Gov. Arnold Schwarzenegger met a 9 a.m. deadline today to file the final brief in litigation that could determine whether furloughs resume this week for roughly 144,000 state employees.

The governor's side filed this response to yesterday's arguments by state employee unions that lower court decisions that have stalled Schwarzenegger's July 28 furlough mandate shouldn't be reviewed by the High Court.

Schwarzenegger is arguing that the Supremes should consider the matter because, he contends, Alameda Superior Court Judge Steven A. Brick erred by granting a temporary restraining order that kept Schwarzenegger from resuming furloughs last Friday. The governor says that the First District Court of Appeal compounded that error by denying his appeal to lift the restraining order while the lower court case moves forward.

With this morning's filing, the Supreme Court has all the documentation that it requested. If it renders a quick decision in the governor's favor, "Furlough Fridays" could return this week. A ruling against the governor would stop furloughs until at least next month when more court action is scheduled. A new budget deal or tentative agreements with individual unions between now and then also could affect state employees' work schedules.

Click here to read the appeal of the furlough ruling filed by Gov. Arnold Schwarzenegger's lawyers today with the Alameda Superior Court.

Colleague Jim Sanders has more on Monday's ruling at sacbee.com.

SEIU Local 1000 filed amended papers on Thursday in Alameda Superior Court update previous arguments that furloughing "special fund" department employees was abritrary and that the policy itself violates labor laws and contractual agreements between the unions and the state. The amendments include the governor's July 28 order.

Click here and here to read Local 1000's amended complaints. The court hasn't yet set a date for hearing the case.

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment has filed a complaint in Alameda Superior Court seeking a temporary restraining order to stop Gov. Arnold Schwarzenegger's new furlough order from being implemented.

The complaint says that the new furloughs illegally reduce Bargaining Unit 2 members' pay and that the policy oversteps the governor's authority. The case is set for a hearing on Monday.

Click here to read the verified complaint for declaratory and injunctive relief. This link opens the union's ex parte application for order to show cause. Here's CASE's memorandum of points and authorities.

On another front, CASE has filed an unfair labor practice complaint with the Public Employment Relations Board.

The complaint alleges that Schwarzenegger has engaged in reprisals and bad-faith bargaining "by ordering that they suffer furloughs and a 14% salary reduction simply because CASE has refused to agree to the Governor's and DPA's proposals in bargaining."

Click here to download the charges filed Monday. You can open the request for injunctive relief by clicking here.

DPA has until Wednesday at 5 p.m. to respond, according to this letter from PERB.

Look for SEIU Local 1000 attorneys to attack Gov. Arnold Schwarzenegger's latest furlough order on Wednesday when they file an amendment to an existing lawsuit now in Alameda Superior Court.

Local 1000 isn't yet going after a temporary restraining order which, if granted, would stop furloughs cold for its members.

During a scheduled hearing on Friday, Local 1000 lawyer Felix De La Torre asked Judge Steven Brick if the union could add complaints about Schwarzenegger's latest furlough order to a lawsuit the union filed in May. That lawsuit was the second to list a number of "special fund" departments that Local 1000 says should be exempt from furlough.

Brick gave the union until Wednesday to file its amendment. Schwarzenegger's side will then have a few days to respond. There's been no hearing date set.

The state Supreme Court has set Sept. 8 to hear oral arguments in the furlough cases it recently decided to take up. The hearing, according to the court's website, will be held at 9 a.m. in San Francisco.

It's not clear how long after the hearing that the court will render a decision.

Click the following links for earlier State Worker coverage of the Supreme Court's decision to consider take up furloughs:

California Supreme Court takes case on state worker furloughs
Why the Supremes said 'no,' then 'yes' to furlough review
Did Schwarzenegger and chief justice talk about furlough litigation?
The State Worker: Sometimes the conspiracy dots don't connect
State Supreme Court snaps up more furlough lawsuits
Poll: Furlough arguments months away; budget before or after?

A Sacramento Superior Court hearing today wound up pushing back the date for when attorneys will again debate whether Controller John Chiang must issue minimum wage paychecks to state workers. The upshot: No minimum wage for state workers now at least through September, and quite possibly well beyond that.

Instead, "other issues" will be discussed during an Aug. 26 hearing and "the infeasibility argument will take place some time in the future," said Ryan Endean, spokesman for PECG and CAPS, two of the unions that have supported Chiang's position.

It's not clear when the court will hear infeasibility arguments. The case hinges on expert testimony and analysis, so the two sides will need time to compile their evidence and witnesses, exchange the information and then break down the opposition's arguments.

"So by our understanding," Endean said, "we're looking at full wages at least through September, if not beyond."

The caveat: If the budget fight drags on, Gov. Arnold Schwarzenegger could order more furloughs. Click here for a recent post about that.

Gov. Arnold Schwarzenegger on Wednesday asked the state Supreme Court to add SEIU Local 1000 v. Schwarzenegger to the list of furlough cases under the high court's review.

The governor is hoping the court will overturn an appellate ruling that upheld trial court Judge Charlotte Woolard's decision that furloughing SEIU-covered employees at the State Compensation Insurance Fund violated California insurance code.

Among the arguments that Schwarzenegger attorney David Tyra makes:

You can read the Sacramento Superior Court decision to deny Gov. Arnold Schwarzenegger's request to compel Controller John Chiang to issue minimum wage paychecks to state workers by clicking here.

This link opens our story about it in today's Bee.

On a related note, Judge Patrick Marlette on Friday also denied four unions' requests to join Chiang's side in the lawsuit.

Several labor attorneys pressed their case but Gregg McLean Adam, representing the California Correctional Peace Officers' Association, took the lead. He argued that the union would give voice to the harms of minimum wage to correctional officers and other state workers and that if not allowed to join this case, the unions would probably start filing lawsuits in other courts -- some of them against Chiang. (The state attorneys' union already has, as we reported here.)

California Association of Professional Scientists, Professional Engineers in California Government and SEIU Local 1000 also applied for "leave to intervene." The Schwarzenegger administration opposed the idea.

Marlette told attorneys during Friday's hearing that he recognized the harm of withholding state employees' pay to minimum wage, noting that the unions had presented declarations from many workers in their "friend of the court" briefs. But he said that Chiang would adequately represent the unions' interests, so he denied their request to become parties in the case.

Click here for Marlette's ruling on the unions' leave to intervene.

IMAGE: Judge Patrick Marlette / 2009 Sacramento Bee file

The State Worker is heading to Sacramento Superior Court's Department 19 this morning to hear minimum wage litigation oral arguments set for 11 a.m. before Judge Patrick Marlette.

The debate won't be about whether Controller John Chiang is making a sound legal argument that he can't legally or physically withhold state workers' pay during the budget impasse. Attorneys for the Department of Personnel Administration and the controller have filed plenty of paper on that issue, and Marlette is apparently ready to publish a decision today about that matter.

Instead, attorneys this morning will argue two points: If Chiang loses, should Marlette directly order the controller to comply with the law and Schwarzenegger's minimum wage order? And should four unions be allowed to join Chiang in the minimum-wage legal battle?

State workers won't have to wait to find out what Sacramento Superior Court Judge Patrick Marlette thinks about Controller John Chiang's arguments against issuing minimum-wage paychecks.

Marlette's court clerk, Barbara Freitas, said that the judge will publish a decision on Friday after an 11 a.m. hearing. Judges sometimes wait days or weeks to render a decision.

Marlette will not issue a tentative ruling ahead of time, however, according to a notice that the court issued today.

Judges will often issue tentative rulings before they hear oral arguments. In January 2009, Marlette issued a tentative ruling in favor of the governor's furlough authority prior to a hearing on the matter. What he heard didn't change his mind, and the tentative ruling became final. Furloughs started a few days later.

(Thanks to Blog User T for flagging the court notice for The State Worker.)

IMAGE: www.yolocourts.ca.gov

Editor's note: This item was published on Tuesday. Since then, several blog users have asked for June 23 and June 30 court documents referenced at the end of the post. We're republishing the item here with links to the those filings at the end of the post.

Attorneys for Gov. Arnold Schwarzenegger have filed a new brief with the state Supreme Court in PECG v. Schwarzenegger (Case No. S183411) The document is a response to a "friend of the court" brief filed on June 24 by Attorney General and Democratic gubernatorial candidate Jerry Brown and several of his fellow constitutional officers.

Attorney General and Democrat gubernatorial candidate Jerry Brown has filed a "friend of the court" brief in Professional Engineers in California Government v. Schwarzenegger. which is one of the furlough cases recently taken up by the state Supreme Court. PECG And California Asssociation of Professional Scientists also filed answers to questions raised by the court.

Joining Brown: Secretary of State Debra Bowen, Treasurer Bill Lockyer, Superintendent of Public Instruction Jack O'Connell and the Board of Equalization.

Among the arguments the constitutional officers make: The Reduced Worktime Act doesn't grant the governor any power to implement a state employee furlough and that neither the 2008 Budget Act nor subsequent budget measures confer furlough power on the executive.

Click here to download the 20-page document, which was filed on Wednesday.

That same day, PECG and CAPS filed a letter brief that says many of the same things as the Brown filing. Click this link to download it.

IMAGE: www.yolocourts.ca.gov

We've received several e-mails from State Worker blog users laying out this scenario:

Let's say in the next few days that Controller John Chiang loses his appeal to overturn the Gilb v. Chiang, the court decision that he overstepped his bounds in 2008 by refusing to issue minimum wage checks to state workers.

Then 2010-11 budget talks drag past the June 30 end of the fiscal year. The Department of Personnel Administration then issues pay letters that instruct Chiang to withhold state workers' pay to the minimum allowed by federal law.

Then what? Would the controller go ahead and issue full-wage checks anyway? We asked Chiang spokesman Jacob Roper that question. Here's what he said:

California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment last week started polling its members online, asking whether they would accept a contract with terms similar to those tentatively agreed to by CAHP, CAPT, CDFF and AFSCME.

The results through Monday, according to this CASE e-mail: "57.8% of those who responded would vote to REJECT the contract terms, while 42.2% would vote to ACCEPT the terms."

The e-mail also gives a brief analysis of Monday's Gilb v. Chiang hearing before the 3rd District Court of Appeal.

Sacramento's 3rd District Court of Appeal will hear oral arguments in Gilb v. Chiang this morning at 9:30 a.m. We expect the hearing to run an hour or a little longer.

The appeal is contesting a lower court decision that Controller John Chiang overstepped his authority in 2008 by refusing to comply with Department of Personnel Administration pay letters ordering state workers' pay temporarily withheld to the federal minimum wage. Then-DPA Director Dave Gilb sued Chiang in Sacramento Superior Court and eventually won.

The controller's office circulated a memo to state employee unions earlier this month, speculating on today's hearing and its eventual outcome: "Given the 3rd DCA's right-leaning composition and its past history of adverse rulings relating to labor interests, we should prepare for a ruling which affirms the trial court's decision," the memo says. "If this occurs, the Controller may be ordered to pay minimum wage as early as the July payroll, which is scheduled to be paid on August 1st."

Click here for our June 10 story about the memo. Read the memo by clicking here.

We're planning to attend this morning's hearing. Check back later for our report on the proceedings.

IMAGE: www.yolocourts.ca.gov

The 1st District Court of Appeal has ruled against Gov. Arnold Schwarzenegger's appeal of Judge Charlotte Woolard's judgment in SEIU Local 1000 v. Schwarzenegger. The union's lawsuit successfully argued that furloughing State Compensation Insurance Fund employees violated state insurance code.

Click here for the details of the appeal, which sought to overturn the ruling -- or to at least to return Woolard's blanket back pay decision to the lower court for more argument.

Aside from the back pay argument, the governor's appeal mirrored his recent bid to overturn CASE v. Schwarzenegger. The administration lost that appeal as well. The state Supreme Court, on its own authority, has taken up that case and three others.

We expect this one will go to the California high court as well.

Click here to read the appellate court's decision.

IMAGE: www.yolocourts.ca.gov

The California Supreme Court has taken over the three original furlough cases decided by Sacramento County Superior Court Judge Patrick Marlette. Those cases were pending in Sacramento's 3rd District Court of Appeal.

All the documents filed in the appellate court will be treated as though they had been filed in the Supreme Court.

Service Employees International Union Local 1000 has filed a furlough lawsuit in Alameda County Superior Court to cover state government bodies that weren't named in an earlier complaint that successfully challenged furloughing employees in "special fund" departments.

The Department of Personnel Administration was served with the complaint on Tuesday. The union filed it on May 21.

Local 1000 had tried to convince Judge Frank Roesch to include a number of departments to those named in a case on which he ruled earlier. The judge refused the request on May 18 because it wasn't timely.

Here's a list of the departments, commissions named in the new lawsuit:

Lawyers representing Gov. Arnold Schwarzenegger and attorneys for SEIU Local 1000 argued furloughs in San Francisco's 1st District Court of Appeal this morning. The judges didn't issue a ruling.

But the new twist in today's case: Schwarzenegger wants to send the back pay issue back to the lower court for reconsideration.

Local 1000 attorney Felix De La Torre said in a brief telephone interview a few minutes ago that the administration argued that the remedy in SEIU Local 1000 v. Schwarzenegger should have been treated differently. Instead of Judge Charlotte Woolard's one-size-fits-all decision for the 7,900 State Compensation Insurance Fund workers -- back pay plus 7 percent of their furloughed wages -- the employees' losses should have been considered individually.

"Our response was that in this case everybody lost the same percentage of wages," De La Torre said.

So, while hoping that the forerunner to this lawsuit, CASE v. Schwarzenegger, would go up to the state Supreme Court, De La Torre said, "they want the whole back pay issue (in the SEIU case) to go back to the lower courts."

And if the appellate court agreed with Schwarzenegger, it's not clear how the trial court would execute the order, since State Fund's employees have received their money.

The administration's appeal of the CASE decision didn't include that argument. We have a call into the Department of Personnel Administration to get their comments on today's court action.

Based on the judge's questions, "I got a feeling that judges weren't buying it," De La Torre said.

The hearing ran an hour, twice the time that arguments usually run, De La Torre said, adding, "I thought it went well. The bench was very active."

UPDATE, 4:40 p.m.: We've spoken to DPA spokeswoman Lynelle Jolley about this morning's court action. Administration attorneys said that the bench raised the issue of State Fund back pay and whether the remedy was inappropriate because there was no evidence presented to justify the cash payment that fund employees eventually received.

So, it's possible that the Governor could lose his appeal of the lower court's decision that he illegally furloughed State Fund employees, but still win the argument that the remedy needs to be revisited at the trial court level.

Or the governor could win on the merits (but remember, this court already ruled against him in a similar case), which would make moot a lower court review of the remedy.

So, we asked, let's say that the lower court decided the remedy was too generous to some employees. How would the state reclaim the money?

"We'll cross that bridge when we come to it," Jolley said.

Attorneys for Gov. Arnold Schwarzenegger and SEIU Local 1000 are scheduled to debate furloughs this morning in San Francisco's 1st District Court of Appeal.

They're arguing the merits of Judge Charlotte Woolard's decision that furloughing employees at State Compensation Insurance Fund violated insurance code preventing "staff cutbacks" at the fund. Click here for more about the legal saga that led to all of the SEIU-represented employees -- and everyone else at the fund -- receiving furlough back pay plus 7 percent.

The SEIU case mirrors the litigation that the state Supreme Court earlier this month decided it would review, CASE v. Schwarzenegger. The governor lost an appeal of CASE with the 1st District Court of Appeal. That same court is hearing today's arguments.

Click here for our Furlough Fights spreadsheet, which lays out the status of furlough litigation in courts around the state.

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As reported in this recent story in The Bee, seven state workers have filed a class action lawsuit against the state for failing to accommodate their disability.

The State Worker asked Disability Rights Advocates, a Berkeley-based nonprofit law center involved in the case, for a copy of the complaint. Click here to read the 75-page document.

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Gov. Arnold Schwarzenegger and the chief justice of California's Supreme Court talked about the judicial branch's budget on the same day that an administration lawyer hand-delivered a controversial letter that informally asked the court to review a furlough case that the governor had twice lost.

There's no connection between those May 11 events, the Schwarzenegger administration says, or the May budget revision three days later that added $19 million in new fee revenue for the trial security, or the Supreme Court's unanimous decision on Thursday to review CASE v. Schwarzenegger as the governor had hoped.

"The budget meeting had nothing to do with the furlough lawsuit," said Schwarzenegger spokesman Aaron McLear. "The governor and the chief justice didn't discuss the (lawsuit) letter ... We never talk about cases that may come before the courts."

The State Worker made several calls to the state Supreme Court in San Francisco this afternoon, but couldn't reach an authorized spokesperson.

Patrick Whalen, the lead furlough litigator for CASE, which represents about 3,800 state legal professionals, said he was unaware of the May 11 meeting between Schwarzenegger and George.

"We're confident in the judiciary's ability to decide this case fairly," Whalen said.

Thursday's state Supreme Court order involves a San Francisco trial court decision, subsequently upheld on appeal, that the governor's furlough of 500 legal staff at State Compensation Insurance Fund violated a law that protects its employees from "staff cutbacks."

Service Employees International Union Local 1000 won a similar lawsuit that returned the remaining 7,500 State Fund employees to full hours and pay and restored their lost wages plus 7 percent. The governor has appealed.

Local 1000 spokesman Jim Zamora declined to comment on last week's meeting between Schwarzenegger and George.

The two government leaders have met seven times since early 2008, McLear said. Many if not all of the meetings involved the judicial branch's budget and there was always plenty of support staff in the room.

"These aren't secret talks," McLear said, calling last week's meeting "routine."

Three days after Schwarzenegger and George met, the governor released his annual May budget revision, which included an increase of $91 million from the state's general fund for the judicial branch.

That money, however, replaced anticipated funding the courts lost when lawmakers didn't sign off on Schwarzenegger's plan to fund the courts with traffic speeding fines using cameras to catch more violators.

The May budget revision also included a new fee to raise $19 million for court security.

Hat Tip: The Recorder, which reported the meeting in this story, and to blog user H for making us aware of it.

David Tyra -- the private attorney whose firm, Kronick Moskovitz Tiedeman and Gerard, has been retained by the Schwarzenegger administration for furlough litigation -- has asked the state Supreme Court to consider taking up a case that the administration has twice lost.

Well, that's sort of what he asked. Stay with us on this.

This just in from Nicholas Confessore of the New York Times :

A federal judge temporarily blocked on Wednesday a one-day furlough of state workers scheduled by Gov. David A. Paterson for next week, reversing a plan that Mr. Paterson has said is necessary to keep the state from running out of money at the end of the month.

Judge Lawrence E. Kahn of United States District Court issued a temporary restraining order against Mr. Paterson, after unions representing state employees and public university teachers filed a lawsuit alleging that the furloughs, approved by the Legislature on Monday, were illegal.

Judge Kahn's ruling also bars Mr. Paterson from seeking any further furloughs pending a hearing in his chambers, scheduled for May 26.

Click here to read the rest of the report.

Hat tip to the unidentified State Worker blog user who called to alert us to this breaking news.

We're still digging out from under a mountain of e-mails, news and information that accumulated while we were on vacation last week. Here's one item:

Bee photographer/videographer Hector Amezcua shot video of Attorney General Jerry Brown's Friday press conference, during which the presumptive Democrat nominee for governor announced that he is suing former CalPERS officials for a kickback scheme to illegally influence decisions on how the fund invested billions of dollars. Click here to see the 2-minute, 34-second video clip.

You can click here to read Bee colleague Dale Kasler's report on the lawsuit. This link opens the court complaint against former CalPERS board member Alfred Villalobos and former fund CEO Fred Buenrostro.

Sacramento's 3rd District Court of Appeal has set June 21 at 9:30 a.m. to hear arguments in Gilb v. Chiang.

The case involves a lawsuit filed by former DPA chief Dave Gilb to force Controller John Chiang's compliance with administration pay letters that ordered state worker pay withheld to the federal minimum until a budget deal was reached.

Long after the budget impasse that prompted the order ended, Sacramento Superior Court Judge Timothy Frawley sided with the administration. You can click here for our earlier reporting about the case with a timeline of events and strong> links to court documents.

Scroll to the bottom of this linked page to read the appellate court's hearing announcement. We'll write more about the proceeding as the date gets closer.

Court Files posts introduce lawsuits of interest to state workers. We highlight the case, link you to the file and show you where to track developments on your own.

• Click on the case number below to download the file. (9 pages)
• Check for subsequent filings on the Sacramento Superior Court's document viewing page. Plug the case number into the appropriate field, click the search button and then scroll down to see a list of documents filed.

Case No.: 34-2010-80000521
Filed: 4/23/2010
Petitioners: California Correctional Peace Officers' Association and Charles Alexander
Respondents: California Department of Corrections and Rehabilitation and Matthew Cate

Case summary: The union, citing the California Public Records Act, in February requested information on how much CDCR has spent litigating and settling lawsuits back to 2007. CCPOA says the department failed to respond, so the union is suing.

We contacted CDCR and asked a few questions:

• Did the department in fact receive the request and fail to respond in a timely fashion?
• If so, why did the department fail to respond?
• Is the department going to respond now? Has the information requested been deemed exempt?

CDCR spokesman Paul Verke is checking. We'll let you know what we hear.

IMAGE: www.yolocourts.ca.gov

Space constraints limit our Thursday State Worker column to roughly 400 words, so much of what we learn in the ramp up to writing it never sees print. Column Extras give State Worker blog users more information -- the notes, the quotes and the documents behind the weekly feature.

Our State Worker column today looks at whether Gov. Arnold Schwarzenegger will again order state employees' wages held to the federal minimum allowed if lawmakers fail to pass an on-time budget.

But how does the law allow that?

The power to impose the federal minimum wage is tied to White v. Davis. The California Supreme Court said a 2003 decision on that state law doesn't authorize employees' pay beyond the legal minimum in the absence of money appropriated for wages in the state budget. So, when budget talks deadlock when there's no funding set aside for payroll, the door opens to temporarily cutting wages.

Click here to download White v. Davis. The key findings are summed up on pages 4 and 5, including this paragraph:

(W)e conclude that under the applicable California statutes, state employees who work during a budget impasse obtain the right, protected by the contract clauses of the federal and state Constitutions, to the state's ultimate payment of their full salary for work performed during the budget impasse; that is, when state employees work during a budget impasse, the state becomes contractually obligated ultimately to pay employees the full salary they have earned. At the same time, however, we conclude that the Court of Appeal was correct in determining that state employees do not have a contractual right actually to receive the payment of salary prior to the enactment of an applicable appropriation, and that the Controller is not authorized under state law to pay those salaries prior to such an appropriation. Thus, state law contractually guarantees that state employees ultimately will receive their full salary for work performed during a budget impasse, but state law does not authorize the Controller to disburse state funds to the employees until an applicable appropriation has been enacted.

The Schwarzenegger administration says the law compelled the governor's 2008 order to the Department of Personnel Administration to issue letters to the controller to withhold pay to the federal minimum. But clearly the decision was at least partly political as well as legal. After all, Schwarzenegger and the Legislature in earlier years had failed to agree on a budget by the June 30, but 2008 was the first time he invoked White v. Davis to withhold wages.

Court Files introduce lawsuits of interest to state workers. We highlight the case, link you to the file and show you where to track developments on your own.

• Click on the case number below to download the file. (21 pages)
• Check for subsequent filings on the Sacramento Superior Court's document viewing page. Plug the case number into the appropriate field, click the search button and then scroll down to see a list of documents filed.

Case No.: 2010-00076304
Filed: 4/23/10
Petitioner: Judith Angell
Respondent: State of California Department of Developmental Services

Case Summary: Angell, who started her state career in 1985, worked for the Department of Developmental Services since 1999. Eventually she suffered work-related repetition injuries and in 2006 made a request to DDS for reasonable workplace accommodations. After initially refusing, DDS temporarily reassigned her in August 2008. Here's what the complaint says happened after that:

In or around November 2008, ANGELL's treating psychologist and physical medicine physician recommended that ANGELL's restriction from working under the mid-level management team become permanent based on the marked improvement in her condition since being reassigned.

Since notice of the permanent restriction placed on ANGELL's employment, DDS has refused to permanently reassign or otherwise accommodate ANGELL's permanent disability.

In or around March 2009, ANGELL's temporary assignment with the Audit Branch of the Administrative Division of DDS was terminated and ANGELL was regarded as unable to work due to her permanent restriction of not working under the supervision of the midlevel management team which she previously worked under at DDS.

Angell submitted a claim to the California Victim Compensation and Government Claims Board, which rejected it, saying, "Based on its review of your claim, Board staff believes that the court system is the appropriate means for resolution of these claims." And last April, the Department of Fair Employment and Housing closed its review of Angell's discrimination case but notified her that she has the right to sue.

Angell's complaint in Sacramento Superior Court alleges wrongful termination based on disability, wrongful discharge, retaliation, breach of contract, breach of implied covenant and intentional infliction of emotional distress. The suit doesn't specify how much money Angell is seeking but asks for a judgment that includes compensation for medical and related expenses, lost past earnings plus interest, lost future earnings, exemplary and punitive damages and legal costs.

Last week's decision by the state Supreme Court to reject Gov. Arnold Schwarzenegger's furlough lawsuit consolidation request prompted many State Worker blog users to e-mail or call with questions about the ruling:

How many members of the court were involved in the decision?

All seven justices weighed in. Justice Joyce Kennard was the only one who indicated she would have granted the governor's request.

The court's ruling was very brief. Will the court publish more about the decision?

Click the following link for the answer to this question and others about the state Supreme Court's decision.

We have a copy of SEIU Local 1000's supplemental brief in its furlough lawsuit appeal in Sacramento's 3rd District Court.

For you Shakespeare fans out there, union attorney Anne Giese cites his famous tragedy "MacBeth."

Here's the pertinent passage:

Click here to download the 14-page document. This link will open a recent post about the status of the three furlough cases now before the 3rd District Court.

A few quick notes on furlough lawsuits around the state:

We've discovered two petitions filed in Alameda Superior Court in March. Both make similar arguments that "self-directed" furloughs violated labor law and both were filed by Carroll Burdick & McDonough, the same firm that successfully argued that point on behalf of CCPOA. Here are the parties and links to the court documents:

Mar. 12 - IUOE v. Schwarzenegger, Case No. RG10503805

Mar. 30 - CSLEA v. Schwarzenegger, Case No. RG10507081

Those two cases bring the furlough lawsuit total to 31 launched in the trial courts since December 2008. Other stats:
• Schwarzenegger has won nine trial court decisions.
• Unions have won six and dropped four cases.
• Schwarzenegger has lost one appellate court decision.
• Nine cases are on appeal.
• Schwarzenegger has peititioned the state Supreme Court to take up seven of the nine cases in the appellate courts.

This link will open the updated Furlough Fights spreadsheet, which lays out info to all the litigation with links to documents and a who's who of the litigants and court locations.

Thanks to blog user L for lending a hand with this post.

A Sacramento judge has ruled against the California Association of Psychiatric Technicians in a year-old lawsuit that sought to overturn furloughs for its members. The union argued that Gov. Arnold Schwarzenegger's "self-directed" furlough policy violates labor law.

CCPOA successfully argued that same position last year in Alameda Superior Court (click here for details), but Sacramento Superior Court Judge Timothy Frawley didn't address the issue at all in his decision.

Click the following link to read the key excerpt from the ruling.

It's official. Furlough Fridays will continue.

San Francisco's 1st District Court of Appeal has issued a ruling on Gov. Arnold Schwarzenegger's third petition for writ of supercedeas. Like the previous decisions (which you can read about here and here), the court has decided to keep furloughs in place for state workers in "special fund" departments named in CASE v. Schwarzenegger while the matter is appealed:

The petition for writ of supersedeas is granted as follows: Pending consideration of the appeal on file herein, and subject to further order of this Court, the "Order Granting in Part Motion for Relief From Automatic Stay," filed March 23, 2010 in Alameda County Superior Court Number RG- 09-453982 is stayed.

The decision keeps furloughs in place for those employees throughout the appeals process, despite Alameda Superior Court Judge Frank Roesch's order last month that the governor end the policy for state workers in one of the so-called "special fund" departments named in lawsuits brought by CASE, SEIU Local 1000 and Union of American Physicians & Dentists.

Schwarzenegger asked the 1st District Court to keep furloughs in place during the appellate process. He won temporary stays in all three cases on Mar. 30. Today's decision, like the two that preceded it, is specifically about extending the stay on Roesch's order, not the legal underpinnings of his ruling that employees in special-fund departments have been illegally furloughed.

Click here to open the court's Web site. Scroll to the bottom to read today's ruling.

San Francisco's 1st District Court of Appeal has again sided with Gov. Arnold Schwarzenegger by deciding to keep furloughs in place for state workers in "special fund" departments named in SEIU Local 1000 v. Schwarzenegger while the case is appealed.

The governor is fighting a lower court ruling in this case and two others. Alameda Superior Court Judge Frank Roesch last month ordered workers restored to full hours and pay if they worked in one of the departments named in lawsuits brought by Local 1000, CASE and Union of American Physicians & Dentists.

Schwarzenegger then asked the 1st District Court to keep furloughs in place, winning temporary stays in all three cases on Mar. 30. This latest decision makes the temporary stay permanent while the court considers Schwarzenegger's appeal.

Here's the wording of the ruling, which you can find on the court's Web site:

The petition for writ of supersedeas is granted as follows: Pending resolution of the appeal herein, the "Order Granting in Part Motion for Relief from Automatic Stay," filed March 23, 2010, in Service Employees International Union Local 1000, and Yvonne Walker v. Schwarzenegger et al., Alameda County Superior Court Number RG-09-456750, is stayed. The stay will remain in effect until issuance of the remittitur or upon further order of this court.

The appellate court on Monday issued a similar decision in the UAPD case, as we reported here. The court hasn't yet issued a ruling on the governor's third stay request in the CASE matter.

The 1st District Court of Appeal has granted Gov. Arnold Schwarzenegger's petition for writ of supercedeas in Union of American Physicians and Dentists v. Schwarzenegger. The decision means that furloughs continue during the appeal of Alameda Superior Court Judge Frank Roesch's decision to end furloughs for state workers in "special fund" departments named in the lawsuit.

Here's the language from the San Francisco-based court's Web site:

The petition for writ of supersedeas is granted as follows: Pending resolution of the appeal herein, the "Order Granting in Part Motion for Relief from Automatic Stay," filed March 23, 2010, in Union of American Physicians and Dentists v. Schwarzenegger et al., Alameda County Superior Court Number RG-09-456684, is stayed. Unless otherwise ordered, the stay will dissolve upon issuance of the remittitur. *Before: Jones, P.J., Simons, J. and Needham, J.

It's highly likely that the court will make similar rulings in the mirror writs the governor requested while he appeals Roesch's decisions in similar trial court lawsuits won by CASE and SEIU Local 1000.

So how long will it take for the appellate to render a decision on Schwarzenegger's appeal? We have no idea. The courts move at their own pace. And there's still a possibility that the state Supreme Court could decide to intervene in these three furlough cases and four others. Click here for more about that.

SEIU Local 1000 has filed a lawsuit in Alameda Superior Court that seeks to exempt its members working at 24-hour facilities from Gov. Arnold Schwarzenegger's "self-directed" furlough policy.

The union wants to "expand the Court's ruling to apply to all SEIU Local 1000 members that are subject to 'self-directed' furloughs that are not used during the pay period." The departments named as defendants: CDCR, Mental Health, Juvenile Justice, EDD, Veterans Affairs and Developmental Services.‬‪‬‪

Local 1000's brief argues that self-directed furloughs -- which allow the state to cut workers' pay but defer the time off -- are illegal.

"We think the law is clear that a wage must be paid in the period that it is earned in order to avoid a violation of California Labor Code," SEIU Local 1000 Chief Counsel Paul Harris said in an e-mailed comment to The State Worker.

In December, Alameda Judge Frank Roesch sided with CCPOA when it made that same argument.

Although Roesch eventually ordered that furloughs immediately end for the 35,000 or so correctional officers and their supervisors affected by his ruling, they remain on furlough while an appellate court considers the case.

Click here to download the latest Local 1000 filing.

Adam Zapala, the attorney representing the Union of American Physicians & Dentists in its fight against furloughs, has sent us a copy of the brief he filed this week in the 1st District Court of Appeal. Like CASE and SEIU Local 1000, UAPD is arguing that the temporary stay should immediately be lifted on Alameda Judge Frank Roesch's order to return "special fund" department employees to full hours.

Gov. Arnold Schwarzenegger last week won a temporary stay from the appellate court that kept state workers on furlough. The unions and the governor are fighting over whether the appellate court should lift that stay or keep it in place during the governor's appeal.

Click this link to download the UAPD brief. This link opens our post about Local 1000's court filing. Clicking here will open more about the CASE opposition brief.

SEIU Local 1000 has filed a 72-page document opposing Gov. Arnold Schwarzenegger's request that the 1st District Court of Appeal in San Francisco allow furloughs to continue while the state appeals a lower court's order to end the policy for "special fund" department employees.

Schwarzenegger won a temporary stay last week.

Yesterday's SEIU filing , which you can read by clicking here, is the second of three union opposition briefs filed with the court. CASE filed on Tuesday, as we reported here. We've asked UAPD attorney Adam Zapala for the third brief.

So when might the 1st District Court act? Any time. Will the court lift the stay and put special fund department employees back to work? Who knows? But barring some 11th-hour decision today that restores the Alameda order, tomorrow is a regular "Furlough Friday."

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California Attorneys, Administrative Law Judges and Hearing Officers in State Employment has filed its opposition to petition for writ of supercedeas in San Francisco's 1st District Court of Appeal. The writ is the union's response to Schwarzenegger's request that the appellate court stay Alameda Judge Frank Roesch's order to return employees in "special fund" departments to full time work and pay during the appeals process.

Schwarzenegger won a temporary stay last week, as noted in this report.

Click here to download the 32-page CASE filing.

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Two items to watch for today and tomorrow:

Today is the deadline for SEIU Local 1000, CASE and UAPD to file their responses to Gov. Arnold Schwarzenegger's request to block a trial court's order to exempt from furloughs 70,000 to 80,000 state workers in so-called "special fund" departments. We'll be watching for the briefs, which are due in San Francisco's 1st District Court of Appeal.

Last Friday, Schwarzenegger's attorneys filed reams of documents, literally, in response to the appellate court's request for exhibits. The documents contained nothing new, DPA spokeswoman Lynelle Jolley told us Tuesday afternoon, just the sum total of papers presented so far in court that concern those three cases.

There's so much paper that it's not practical -- and technically close to impossible -- for this blog to post the governor's Friday submissions. The court's Web site doesn't make them available either.

The state Senate will likely vote Thursday on AB 790, the bill that would fund the state employee payroll with a continuous appropriation. We'll be keeping an eye on the vote. So will the coalition of unions, led by PECG and CAPS, that strongly support the measure.

We asked Schwarzenegger spokesman Aaron McLear on Tuesday whether the governor had a position on the measure. McLear took a few notes and said he'd get back to us. We'll let you know what he says.

With all the recent furlough court action, we're just now getting to the latest development in the fourth of the four Alameda cases ruled on by Judge Frank Roesch and now with San Francisco's 1st District Court of Appeal, CCPOA v. Schwarzenegger.

When we last left this case, Gov. Arnold Schwarzenegger's legal team had won a decision from the appellate court to temporarily block Roesch's order to end self-directed Corrections furloughs pending a resolution of the appeal or another order from the appellate court.

On Feb. 26, the appellate court denied CCPOA's motion to dismiss the governor's appeal, although it also said the union's arguments about the timeliness of the appeal had merit. The court said it would treat the appeal as a request for a writ of mandate and set a schedule for the two sides to submit documents to support their positions.

Schwarzenegger filed this opening brief on Monday.

The governor argues that Roesch wrongly concluded that "self-directed" furloughs constitute an illegal salary reduction for Bargaining Unit 6 members and that the self-directed furlough program violates labor law.

Schwarzenegger also contends that even if the self-directed furlough policy shortchanges some members who can't redeem their deferred time off by the deadline of June 30, 2012, they have recourse to individually sue for unpaid wages. "The presence of an adequate remedy at law, however, means (Roesch's) issuance of the writ of mandate in this case was erroneous," the brief says.

CCPOA has until April 28 to file its response, The governor has 15 days to reply after CCPOA files. There's no date set for oral arguments.

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The paper flew in Sacramento's 3rd District Court of Appeal on Thursday as Gov. Arnold Schwarzenegger filed six documents in his interlocking furlough fight with PECG, CAPS, SEIU Local 1000 and CASE.

These cases are all appeals of Sacramento Superior Court Judge Patrick Marlette's Jan. 29, 2009, ruling that Schwarzenegger had the emergency authority to furlough state workers.

Thursday's action in the 3rd District Court came two days after San Francisco's 1st District Court of Appeal temporarily blocked an Alameda judge's order that state workers in nearly 70 "special fund" departments return to full work schedules this week.

Click the links below to view each set of 3rd District Court filings, which mirror each other:

A supplemental letter brief and motion for judicial notice filed by the governor's side in PECG/CAPS v. Schwarzenegger.

The governor's letter brief and motion for judicial notice filed in SEIU v. Schwarzenegger.

And finally, Schwarzenegger's supplemental letter brief and motion for judicial notice in CASE v. Schwarzenegger.

You've read the arguments. Now it's your turn to weigh in.

Gov. Arnold Schwarzenegger wants the state Supreme Court to consolidate and consider seven furlough cases now under appeal and suspend all other trial court action. Failing that, the governor wants the state's highest court to consolidate the cases in Sacramento's 3rd District Court. Click here to read more about his request to the court.

All but one of the parties involved in those cases filed responses with the court by last week's deadline. Here's a review (click the links for detailed info):

CASE opposes the governor's request outright.
PECG and CAPS support parts and oppose parts.
SEIU Local 1000 supports some of Schwarzenegger's request and opposes some of it.
The constitutional officers, including Attorney General (and Democrat candidate for governor) Jerry Brown, oppose.

The sixth party, Union of American Physicians & Dentists, didn't take a position. In an e-mail to the State Worker, UAPD attorney Adam Zapala said, "(W)e did not file an answer or otherwise oppose the request to transfer the cases to the California Supreme Court."

Here's today's poll question:

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From the notebook posts give State Worker blog users insights, notes and quotes that went into news stories that we write.

Our story in today's Bee looks at the temporary stay issued on Tuesday by the 1st District Court of Appeal in response to Gov. Arnold Schwarzenegger's writ of supercedeas.

We had asked SEIU Local 1000 for comment, but we filed our story before receiving this e-mailed response to our request from union spokesman Jim Zamora:

The state Court of Appeal has temporarily blocked an Alameda Superior Court judge's order sending non-General Fund state employees back to work. That means that Local 1000-represented employees should observe Friday, April 2 as a furlough day.

SEIU Local 1000 Attorney Felix De La Torre pointed out that the court's decision to re-impose the stay is not based on the merits of either side's arguments.

"The stay was granted strictly to preserve the status quo until the court can decide whether to lift the furloughs while the appeal is being decided," De La Torre said. "It says nothing about the merits of the appeal. It is a precautionary action to give the justices time to make a decision."

SEIU Local 1000 President Yvonne Walker said the Tuesday's court action was just another step in a long battle.

"We will continue to aggressively fight these furloughs - which have already been found illegal by a trial court - until our workers are back at their jobs and receiving full pay."

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We've just received word from Gov. Arnold Schwarzenegger's office that the 1st District Court of Appeal has issued a temporary stay in one of the three furlough cases that the governor appealed on Monday.

Bottom line for state workers: This Friday will be another furlough day for anyone who had the last "Furlough Friday" off without pay.

The stay comes one day after the governor's petition for a writ of supercedeas in
California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Schwarzenegger . The writ seeks to block Judge Frank Roesch's order to return state workers in "special fund" departments named in that lawsuit to a regular schedule while Schwarzenegger appeals the ruling.

Today's action temporarily puts Roesch's order on hold to give the court more time to hear detailed arguments on both sides about whether Roesch's order should be executed during the appeals process.

We expect the court will soon issue similar decisions in similar writs involving Roesch's decisions regarding lawsuits brought by Union of American Physicians & Dentists and SEIU Local 1000 that the governor has also appealed.

Here's the text of this morning's court's order, which includes a Friday deadline for the governor to file more documents supporting his argument and a April 7 deadline for CASE to respond:

Pending consideration of the petition for writ of supersedeas on file herein, and subject to further order of this Court, the "Order Granting in Part Motion for Relief From Automatic Stay," filed March 23, 2010 in Alameda County Superior Court Number RG- 09-453982 is temporarily stayed. On or before 12:00 noon, Friday, April 2, 2010, appellants shall serve and file exhibits in compliance with rule 8.112 of the California Rules of Court. On or before 10:00 a.m., Wednesday, April 7, 2010, respondents shall serve and file opposition, if any, to the petition for writ of supersedeas. The Clerk of the Court shall provide telephone notice of this order to all parties in addition to service by mail.

Click here to link to the court's Web site.

Attorney General Jerry Brown last week filed a court brief arguing that the California Supreme Court should not take up Schwarzenegger v. Chiang, one of seven furlough cases that Gov. Arnold Schwarzenegger hopes the high court will consolidate and consider.

(For a review of the furlough fight between the Republican governor and the six Democrats elected to office by statewide vote and the Board of Equalization, click here. A seventh official, Insurance Commissioner and GOP gubernatorial candidate Steve Poizner isn't part of Brown's filing to the high court.)

Democrat gubernatorial candidate Brown, who as attorney general is a constitutional officer, submitted a 23-page answer to Schwarzenegger's proposal that makes these arguments:

• A transfer would actually slow the appeals process instead of expediting it.
• The governor failed to meet the legal standard of seeking the high court's relief "promptly."
• The danger of conflicting rulings by the lower courts can be resolved without leapfrogging to the state Supreme Court.
• The constitutional officers' appeal involves unique legal questions that set it apart from the other six cases.

The constitutionals also oppose Schwarzenegger's alternative proposal that the Supreme Court consolidate the seven furlough cases in Sacramento's 3rd District Court of Appeal.

Click here to read Brown's brief.

Last week, California Association of Professional Scientists and Professional Engineers in California Government filed their response to Gov. Arnold Schwarzenegger's petition to the state Supreme Court to consolidate and take up seven furlough cases or move them into Sacramento's 3rd District Court of Appeal.

The unions like parts of the governor's proposal and dislike other parts, as they explain on PDF page 9:

PECG and CAPS support the Governor's request to transfer six of these cases -- the three consolidated in the Third District Court of Appeal and the three First District Court of Appeal cases -- because those cases raise issues of great importance that should be resolved promptly and warrant this Court's assumption of jurisdiction ...

Should this court decline to transfer the pending appeals to itself ... it should decline the Governor's request to consolidate the cases in the Third District Court of Appeal.

Click here to open the CAPS/PECG brief. We've also written a bit about the opposition brief filed by California Attorneys, Administrative Law Judges and Hearing Officers in State Employment. Click here to read more about that. The governor's Mar. 2 petition to the high court is here.

Also, we've updated our Furlough Fights spreadsheet. Click here to see info about all the furlough lawsuits launched since Schwarzenegger mandated the policy in late 2008.

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Parties in the furlough lawsuits had until this week to submit their responses to Gov. Arnold Schwarzenegger's request that the state Supreme Court consolidate and consider the cases as a group, bypassing the lower courts. We're gathering up the court filings and will post them for State Worker blog users.

First up: California Attorneys, Administrative Law Judges and Hearing Officers in State Employment, which opposes the governor's request. The rationale for the union's position starts on PDF page 9 of the 23-page document:

• The furlough cases are not sufficiently important to merit transfer and consolidation.
• The various furlough cases present different legal issues.
• The various furlough cases are in different procedural postures.
• The furloughs will end soon.
• The petition does not seek to review all of the pending furlough cases.

As a backup plan, Schwarzenegger asked the Supreme Court to consolidate the seven cases at Sacramento's 3rd District Court of Appeal. CASE thinks that's also a bad idea for reasons that start on PDF page 19.

Click here to download the CASE brief. This link opens the governor's petition to the state Supreme Court.

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Judge Frank Roesch's ruling to lift a stay on ending furloughs for nearly 70 "special fund" departments has had an impact on another furlough case.

That lawsuit, International Union of Operating Engineers v. Schwarzenegger, is in Los Angeles Superior Court and makes the same "special fund" argument that won over Roesch.

(One difference, according to IUOE attorney Adam Stern: The union's suit includes three entities not named in the Alameda cases: the Military Department, CalEPA and the Department of Food and Ag's Fairs and Expositions Division.)

Because the Los Angeles case so closely mirrors the Alameda lawsuits, the court there stayed the IUOE matter for 60 days to see how the other three cases play out, Stern said.

"But I don't expect the (San Francisco 1st District Court of Appeal) to rule that soon, so we may have to put our case on ice some more," Stern told The State Worker.

Our furlough litigation story in today's Bee quotes two academics, Vikram Amar of UC Davis School of Law and Athena Roussos of McGeorge School of Law. We thought State Worker blog users would want to learn more about what these two experts had to say about the governor's plan to file a writ of supercedeas that, if granted, would keep "special fund" state workers on a furlough schedule, despite Judge Frank Roesch's decision Wednesday that the policy must end immediately.

Vikram Amar (click here for his biography)

On the difficulty of getting an appellate court to overturn a trial court's stay decision: In general, it's hard to get an appellate court to grant a writ. You're asking the court for extraordinary relief. You're asking the appellate court to do something more quickly than if you just waited for the normal appeals process to play out.

On the likelihood of Schwarzenegger getting the court to see things his way and overturn Roesch's partial lifting of the stay: Courts rarely do it, but this is an unusual situation. Here's an analogy: You can say that it's rare for a team to make the Final Four (in the NCAA college basketball tournament), but if the team is (basketball powerhouse) Duke, then it's a different story.

Here, you would say that it's rare for a governor to seek a writ of supercedeas. What does that mean? Maybe the governor's average in successful writs might be higher than the overall average. Maybe not.

On Roesch's split decision: It will be impossible to not pay furloughed state workers if (the ruling stands that) furloughs are illegal. But this judge obviously didn't want to get into dictating that the state spend money right now.

On the difficulty of predicting how the courts will rule on furlough litigation: This is a pretty arcane, unresolved area. Everybody's operating in a legal vacuum here. No one thinks about situations like this when they draft constitutions.

Click the following link for comments by Roussos.

By our count (and with the help of eagle-eyed State Worker blog users), there are 68 departments named in the three furlough lawsuits at the heart of Wednesday's furlough stay ruling by Judge Frank Roesch.

Click here for SEIU Local 1000's latest list, which it says it will update as appropriate.

In this letter to members, CASE lists 60 departments.

Click the following link to see for the 68 furlough-exempt departments we've counted. If we've missed one, please shoot an e-mail our way and include a PDF of or a link to the court document that shows the excluded department is part of the "special fund" group.

Click here to read Alameda Superior Court Judge Frank Roesch's "Order Granting in Part Motion for Relief From Automatic Stay," which the judge signed today. It's essentially the same as his earlier tentative ruling.

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As we've reported in this story, Alameda Superior Court Judge Frank Roesch has ordered furloughed state workers in 69 "special fund' departments go back to a regular work schedule starting next month, but he stopped short of ordering immediate back pay for the tens of thousands of workers covered by his decision while Gov. Arnold Schwarzenegger appeals.

Union attorneys expect Schwarzenegger lawyers will ask the 1st District Court of Appeal to overturn Roesch's order. There's time for such a move, since the next "Furlough Friday" is nine days away.

Click here to read Roesch's tentative ruling, which he said will become final with no significant changes. (Note: There's a typo in the ruling: "California taxpayers will suffer irreparable harm if the appeal operates as a stay because taxpayers will not continue to lose the benefit of these employees' work for the Respondent Agencies ..." Roesch noted that the word "not" should be stricken.)

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A few blog users have contacted The State Worker asking how to access furlough lawsuit court documents online, particularly the cases ruled on by Alameda Superior Court Judge Frank Roesch.

Three of the cases are set for a Mar. 24 hearing to discuss whether to continue delaying Roech's order to end furloughs and restore back pay for nearly 70 departments named in the lawsuits. At the moment, an automatic stay is in place because Gov. Arnold Schwarzenegger appealed Roesch's decisions.

As the cases progressed, The State Worker has linked to key documents. But some folks want more. Here's how to dive into the docs:

Click here to open the Alameda Court's DomainWeb document search engine. Then in the case number field enter any one of the following:

• RG09453982 (California Attorneys, Administrative Law Judges And Hearing Officers in State Employment v. Schwarzenegger)
• RG09456684 (Union of American Physicians & Dentists v. Schwarzenegger)
• RG09456750 (Service Employees International Union v. Schwarzenegger)

And here's the info on a fourth Alameda case, which successfully argued a different point of labor law than the other three lawsuits:

• RG09441544 (California Correctional Peace Officers Assn v. Schwarzenegger)

The CCPOA case is currently before the 1st District Court of Appeals.

Click here to view our updated Furlough Fights spreadsheet, which lists the lawsuits, the litigants and the locations of more than two dozen court battles over the governor's policy.

The Alameda Superior Court furlough stay hearing originally scheduled for Mar. 23 has been pushed back one day to Mar. 24 at 9 a.m. Judge Frank Roesch will hear arguments on whether to lift the automatic stay currently in place as a result of Gov. Arnold Schwarzenegger's appeal of Roesch's order to end furloughs and issue back pay to state workers in certain "special fund" departments.

Click here to read the court document that resets the date. Click here for our previous post about the hearing.

This link opens our updated Furlough Fights spreadsheet, with info and links to 28 furlough lawsuits sparked by the governor's policy.

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Court Files introduce lawsuits of interest to state workers. We highlight the case, link you to the file and show you where to track developments on your own.

• Click on the case number below to download the file. (12 pages)
• Check for subsequent filings on the Sacramento Superior Court's document viewing page. Plug the case number into the appropriate field, click the search button and then scroll down to see a list of documents filed.

Case No.: 2010-00071323

Filed: 02/25/2010
Petitioner: Brett Boukather
Respondent: California Department of Forestry and Fire Protection

Boukather, a 22-year fire service veteran whose last job was with Cal Fire Academy as a Fire Captain/Training Officer, contends that after he reported a Fall 2007 incident that involved his boss, Kevin Guerrero, that Guerrero sexually harassed him, made wrongful accusations, threatened him with bodily harm, inappropriately interrogated him and humiliated him, creating a hostile work environment.

Boukather asked Cal FIRE for a transfer, which was denied. In July 2008, the lawsuit says, he was "forced to resign from his position at Cal Fire because of the hostile environment created by Guerrero and Cal Fire's refusal to address and remedy Guerrero's unlawful conduct." Boukather has been unemployed since then.

The suit alleges that Guerrero's behavior violates several labor laws and the state's Whistleblower Protection Act. Click here to read the act's provisions.

The lawsuit concludes:

WHEREFORE, Plaintiffs respectfully request judgment against Defendants as follows:
1. For general and special damages;
2. For punitive and exemplary damages;
3. For attorney's fees as provided by law;
4. For treble damages, as authorized by statute,
5. For costs of suit;
6. For prejudgment interest; and
7. For such other and further relief as the court may deem just and proper.

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment on Monday filed its response to five questions about furloughs asked by Sacramento's 3rd District Court of Appeal. As we promised, we're posting the CASE supplemental briefing letter. Click here to read it.

California Association of Professional Scientists and Professional Engineers in California Government also filed a brief on Monday. Read about that by clicking here.

This link will open a post that lays out what's going on with this appeal, which challenges the January 2009 decision by Judge Patrick Marlette that cleared the path for Gov. Arnold Schwarzenegger to impose furloughs on more than 200,000 state workers.

In the leading court case challenging furloughs, unions representing state scientists, state engineers and state legal professionals have filed responses to the 3rd District Court of Appeal's five questions about the controversial policy.

The filings by California Association of Professional Scientists, Professional Engineers in California Government and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment are the latest steps in the appeal of Judge Patrick Marlette's 13-month-old Sacramento Superior Court decision. Marlette's ruling cleared the path for Gov. Arnold Schwarzengger to implement furloughs.

Click here for a February post that explains the process and that contains a link to the court's order for more information.

Tapping this link will open PECG's supplemental letter brief to the court. We'll post the CASE brief as soon as we receive it. Ditto for a Local 1000 brief we expect to see filed.

The First District Court of Appeal denied CCPOA's motion to dismiss Gov. Arnold Schwarzenegger's appeal of Alameda Judge Frank Roesch's decision in favor of the union. The denial, issued on Friday, means that the correctional officers and their supervisors that came under the ruling will remain on furlough.

Now the governor has 30 days as of Friday to file its appeal brief, CCPOA has to then file its opposition brief within 30 days of the governor's filing. Then the governor has 15 days after that to file a reply. At some point yet to be determined, the court will set a hearing date.

Click here to read the court's Friday decision.

For more about the Alameda case, click here and here.

As expected, lawyers for Gov. Arnold Schwarzenegger this afternoon filed an appeal of Judge Frank Roesch's order to end furloughs for state workers in 68 special fund departments and issue back pay for time they were ordered to stay home.

(If you missed it, click here to read our news story in today's Bee about the Thursday court order.)

We have the court documents. Click the following links to view them:

CASE III Notice of Appeal
CASE III - Notice of Designating Record on Appeal
SEIU III Notice of Appeal
SEIU III Notice of Designating Record on Appeal
UAPD - Notice of Appeal
UAPD - Notice of Designating Record on Appeal

The Alameda Superior Court judge who ruled against Gov. Arnold Schwarzenegger in three union-backed furlough lawsuits said this morning that he will issue final decisions in those cases within one week.

Judge Frank Roesch made that commitment in his Oakland court room to attorneys representing Schwarzenegger, SEIU Local 1000, the Union of American Physicians and Dentists and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment. The group convened to debate how to apply the judge's December decisions that some aspects of Schwarzenegger's furlough order violate the law. (Click here for more about those decisions.)

A fourth furlough case that Roesch ruled on involving members of California Correctional Peace Officers' Association, was not part of today's proceedings.

As is customary in these types of cases, the judge had asked the winning sides to draft judgments -- documents that lay out the logic of the decisions and their scope -- and then discuss them with the losing side in a court hearing. The judge will then take those documents and the arguments he heard this morning to issue a final judgment that will become the basis for a Schwarzenegger appeal.

According to sources at this morning's 9 a.m. hearing, the scope of Roesch's decisions emerged as a topic of prime contention: Should the decision apply only to union-covered workers in the agencies and departments specifically named in the lawsuits? Should the decisions apply only to the unions that brought the litigation or to all unionized employees? And what about non-union supervisors and managers? Does it make sense to exempt union employees from furloughs but have them show up for work on a Friday while their supervisors are at home?

Click this link to read about what will happen once Roesch issues his decisions. This link opens our all-encompassing Furlough Fights spreadsheet of all the state furlough litigation in California courts.

Lawyers for Gov. Arnold Schwarzenegger and attorneys representing three unions will meet this morning at 9 a.m. in Alameda Superior Court to haggle over how to apply a judge's December decision that specific aspects of the governor's furlough policy are illegal.

Click here to see the notice of hearing.

The unions, SEIU Local 1000, the Union of American Physicians and Dentists and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment will submit proposals about how Judge Frank Roesch's December decisions should be applied.

We expect the union lawyers will argue for many or even all of their members to come under the umbrella of Roesch's decisions, which you can read by clicking here. The governor's side will ask Roesch to apply his decision to a relatively small number of state workers.

So what happens next?

Roesch will take the arguments into consideration, issue a judgment (it could take days, weeks or months), which Schwarzenegger will immediately appeal. That will freeze the status quo, unless the unions successfully argue that the affected state workers should be restored to full hours and pay while the case grinds on. Click here for more details.

And click this link to see our Furlough Fights spreadsheet, which tracks all the state furlough litigation in the courts.

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Court Files introduce lawsuits of interest to state workers. We highlight the case, link you to the file and show you where to track developments on your own.

• Click on the case number below to download the file. (13 pages)
• Check for subsequent filings on the Sacramento Superior Court's document viewing page. Plug the case number into the appropriate field, click the search button and then scroll down to see a list of documents filed.

Case No. 34-2010-80000443
Filed: 1/27/2010
Petitioner: Gregory Powell
Respondent: California State Personnel Board
Real Party in Interest: California Department of Developmental Services

Case summary:

DDS employed Powellas a Senior Psychiatric Technician at the Sonoma Developmental Center in Eldridge. The department fired him a little more than three years ago after a coworker had said that she witnessed -- through a reflection in a picture in a hallway -- Powell strike a patient with a shoe.

Powell denied the charge, saying that the patient was the aggressor and that what his coworker saw was Powell defending himself against punches aimed at his stomach.

Powell appealed to SPB, which revoked his dismissal last September and awarded backpay and benefits.

More than four months later, DDS hasn't complied with the SPB order, according to the lawsuit.

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. Department of Personnel Administration is set for a hearing today at 9:30 a.m. in San Francisco Superior Court.

CASE is challenging the state's elimination of Columbus Day and Lincoln's Birthday from the government's paid holiday calendar. The matter was set for oral arguments last month, then rescheduled for this morning.

Click here for our first report about the lawsuit and a link to the union's petition.

California Medical Association v. Schwarzenegger, which was scheduled for hearing on Friday in San Francisco Superior Court, has been postponed until Feb. 24. You can read about the case and view CMA's court brief by clicking this link. To view the court calendar with the announcement, click here.

And we've updated the unofficial scoreboard of state furlough litigation, our Furlough Fights spreadsheet, which you can view here.

IMAGE: www.yolocourts.ca.gov

The correctional officers' union filed its arguments last week in a continuing battle with Gov. Arnold Schwarzenegger over whether prison officers should be paid for all the hours that they work.

The California Correctional Peace Officers' Association and State Controller John Chiang have said that the governor filed an invalid appeal of an Alameda court's December decision that "self-directed" furloughs for prison officers aren't legal. Chiang said he was constrained to follow the court's decision.

The governor's office says the appeal is valid and automatically maintains the furlough status quo.

The fight wound up in San Francisco's 1st District Court of Appeal, which sided with Schwarzenegger but gave CCPOA a chance to further argue its case by Jan. 21. Click here and then click here for the arguments made by both sides.

The union met last week's deadline with "opposition to petition for writ of supercedeas" that you can read by clicking here.

The governor's side has until Friday to file a response.

Make that 27.

Furlough lawsuits, that is. Professional Engineers in California Government filed a new one in Alameda Superior Court last week that mirrors the successful "special fund" arguments made in earlier cases pressed by Service Employees International Union Local 1000, the Union of American Physicians and Dentists and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment. (Click here for more about those cases.)

Of course, when the state scientists union made that argument in a San Francisco court last week, it lost. We reported that here.

As this document shows, the PECG case has been assigned to Judge Frank Roesch, who ruled against Schwarzenegger in those three furlough lawsuits and a fourth one brought by the California Correctional Peace Officers Association.

Look for Gov. Arnold Schwarzenegger's attorneys to ask for a different judge.

Click here to download PECG's petition.

This link will open The State Worker's Furlough Fights spreadsheet, with details of all the furlough lawsuits now coursing through the courts.

IMAGE: yolocourts.ca.gov

California's correctional officers' union has sued a longtime union member in Sacramento Superior Court. The defendant, Steve Fournier, says he doesn't mind the lawsuit. In fact, he welcomed it.

California Correctional Peace Officers' Association v. Steve Fournier went before a Sacramento Superior Court Judge Shelleyanne Chang last Friday. The suit alleges that the retired CO and former union employee used his access to a Sacramento warehouse to steal sensitive union documents. Information from those papers, the lawsuit contends, have surfaced on a blog that is "heavily critical of the current leadership of CCPOA, and its president in particular."

Fournier says he took nothing, doesn't have any purloined records and that his critical blog posts come from knowledge gained as a former CCPOA union insider.

Click the following link to read more about CCPOA v. Fornier.

Court Files introduce lawsuits of interest to state workers. We highlight the case, link you to the file and show you where to track developments on your own.

• Click on the case number below to download the file. (24 pages)
• Check for subsequent filings on the Sacramento Superior Court's document viewing page. Plug the case number into the appropriate field, click the search button and then scroll down to see a list of documents filed.

Case No.: 2010-80000426
Filed: 01/19/2010
Petitioner: David Clark
Respondent: California State Personnel Board
Real Party in Interest: California Department of Corrections and Rehabilitation

From the court file:

CDCR served CLARK with an adverse action dismissing him from his position as a Physician and Surgeon effective the close of business April 26, 2002. The gist of the action against CLARK is that on June 27, 2000, he examined an inmate who claimed that he could not move his arms and legs following a fight. After conducting various tests on the inmate CLARK believed the inmate did not have the injuries he claimed. CLARK did not order an x-ray to determine whether the inmate had any spinal damage, and returned him to his cell. The next day other prison doctors had the inmate x-rayed, discovered severe cervical spinal damage, and rushed the inmate to the hospital. The inmate became a quadriplegic. CLARK was charged with failing to send the inmate for an x-ray and failing to properly diagnose the inmate's condition.

CLARK filed a timely appeal with the SPB. On October 22,2009 the SPB issued its decision sustaining his dismissal. CLARK has, therefore, exhausted his administrative remedies.

In sustaining the dismissal against CLARK, the SPB abused its discretion because the
findings are not supported by substantial evidence and/or denied CLARK his due process rights ...

Click the case number above to read the complete complaint, which includes a copy of SPB's dismissal appeal decision and 21 points that his attorney, Steven Bassoff, says aren't supported by the evidence or violate his client's rights.

The hearing date for California Association of Psychiatric Technicians v. Schwarzenegger has been moved. The new date in Sacramento Superior Court is Mar. 19. CAPT says filing delays by the state forced the postponement of the hearing, originally scheduled for last Friday before Judge Timothy Frawley.

Click this link for our updated Furlough Fights spreadsheet, which lays out details about the 26 furlough lawsuits launched in the last 13 months.

Why 26? We've given the Schwarzenegger/Chiang/CCPOA case in San Francisco's 1st District Court of Appeals its own entry, even though the dispute is about the validity of a furlough lawsuit appeal and not furloughs per se.

Since we get to make up the rules, we added it.

The 1st District Court of Appeal has sided with the governor. For now, Judge Frank Roesch's order to restore full pay to correctional officers for time worked is stayed pending more arguments.

From the court's Web site:

Appellant, the Governor of the State of California, has a filed a petition for writ of supersedeas and request for a temporary stay seeking the stay of a writ of mandate addressing his furlough of certain correctional officers. Appellant argues that there is an automatic stay because of his filing of a notice of appeal and asks for a temporary stay pending resolution of that issue. Respondent and the Controller of the State of California oppose the request and argue that the appeal is premature. To that end, Respondent has also filed a motion to dismiss the appeal. Pending determination of the motion to dismiss, or upon further order of this court, the writ of mandate issued by the trial court on December 30, 2009, is temporarily stayed. Furthermore, Respondent is to file any opposition to the petition for writ of supersedeas by 4:30 p.m., Thursday January 21, 2010. (See rule 8.112(b)(1).)

Click here for background on this case.

Attorneys for the California Correctional Peace Officers Association have filed their opposition to a request by Gov. Arnold Schwarzenegger that the state continue paying correctional officers reduced wages while the administration appeals a key court ruling over "self-directed" furloughs.

Union lawyers responded to Schwarzenegger's contention that his appeal of Judge Frank Roesch's Dec. 29 decision that prison officers were illegally furloughed should automatically keep Controller John Chiang from restoring their full pay for January.

Chiang has said that the judge's decision can't be appealed for a technical reason that we explained in this blog post. He plans to pay correctional officers for all the time they've worked instead of accepting that they can work through furlough days and take the time off down the road. (Roesch found that deferring furlough time off beyond a given pay period while cutting wages by the furlough amount is illegal.)

And as we reported here, Schwarzenegger on Thursday filed with the 1st District Court of Appeal to keep Chiang from acting on his plan.

Now, with the state payroll processing deadline looming next week the union has jumped in on Chiang's side. And we have the court docs:

Opposition to Request for Temporary Stay (18 Pages)
Motion to dismiss (19 pages)

The State Worker and thousands of state workers, we're sure, have been waiting for a tentative ruling from Sacramento Superior Court Judge Timothy Frawley in advance of tomorrow's scheduled oral arguments in California Association of Psychiatric Technicians v. Schwarzenegger.

We can now report that there won't be a tentative ruling today or tomorrow and that the 1:30 p.m. hearing won't include oral arguments. Instead, CAPT spokeswoman Brady Oppenheim told us moments ago, the court wants more paperwork filed. The court tomorrow also will set a new hearing date.

Click here for more information on the case. This link opens our comprehensive Furlough Fights spreadsheet with information on CAPT v. Schwarzenegger and 24 other furlough lawsuits launched over the last 13 months.

San Francisco Superior Court Judge Peter Busch has set a Feb. 3 hearing date for arguments in a California Attorneys, Administrative Law Judges and Hearing Officers in State Employment v. DPA, the lawsuit that challenges the state's elimination of Columbus Day and Lincoln's Birthday from the government's holiday calendar. Click here for our Sept. 18 post about the lawsuit and a link to the union's petition.

CASE says that eliminating the holidays violates Bargaining Unit 2's contract.

The lawsuit was set for hearing this morning, but nothing happened. Busch wants more arguments on some points of the law, CASE attorney Patrick Whalen said in a brief phone interview this afternoon after this morning's hearing.

You can see the court calendar entry below. Click on it for an easier-to-read version. Good luck making sense of it.

A recently amended lawsuit in San Francisco Superior Court, Acosta v. Henning, seeks to end furloughs and restore lost pay to EDD and CUIAB employees as part of a remedy for what the plaintiffs contend are violations of the state constitution and state law because the government is slow to process unemployment benefits and adjudicate claim disputes.

Here's a key paragraph from the lawsuit:

... (The) Respondents' policies and practices ... delay processing and paying claims for unemployment insurance benefits ("UIB"). Among other things, Petitioners challenge Respondents (a) secondary identity verification system, on the grounds that it unfairly delays processing and paying claims and often results in unnecessary and costly administrative law hearings; (b) the delays in processing appeals when benefit claims have been denied; (c) exacerbation of processing delays as a result of the Respondents' imposition of furloughs and salary reductions on EMPLOYMENT DEVELOPMENT("EDD") and CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD ("CUIAB") employees even though (i) UIB programs are funded almost entirely through United States Department of Labor (USDOL) grants, the amount of which are based on the number of cases processed, and (ii) the EDD and CUIAB cannot and will not comply with federal requirements due to the unlawful furloughs ...

The lawsuit was filed in March 2008 and then added the furlough argument this year. When that happened, the state moved the defense from Attorney General Jerry Brown's office to an outside firm under contract to handle Schwarzenegger's furlough litigation, Kronick, Moskovitz, Tiedemann & Girard.

"The AG's office has a conflict in these furlough cases, so that's why the change in representation," Lynelle Jolley said in an e-mail to The State Worker. (To read more about that conflict, click here.)

Acosta seeks several remedies, including immediate exemptions for EDD and CUIAB employees from furloughs that the petitioners say violate Article 14, Section 4 of the state constitution (click here to read the language) and Unemployment Insurance Code 318 (click here and scroll down to the applicable paragraph). The lawsuit also seeks "back pay with legal interest for any past reduction in salaries to CUIAB and EDD employees."

The amended petition, which you can view here, was filed Nov. 23. The court hasn't yet set a hearing date for the case.

Click this link to see this lawsuit and 24 others we're tracking on our Furlough Fights spreadsheet.

Thanks to blog user L for sending this our way.

The board of directors for California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment issued an update of various lawsuits it is pursuing on behalf of members or that it's following with great interest.

Four of the six cases mentioned in the memo to members involve furlough lawsuits. Here's what the e-mail says about the Alameda case:

We are anticipating a ruling from the Alameda County Superior Court any day. As you may have heard, Judge Roesch issued a favorable ruling to CCPOA on Thursday, December 17th. That case was argued the same day as the CASE Petition, and while there are discrete legal issues between the two cases, certainly the ruling in the CCPOA matter suggests that the judge takes a dim view of the notion that the Governor can declare an indefinite "emergency" and use that emergency to assert extraordinary power not conferred by law.

Click here to read the memo CASE issued on Friday. And our constantly updated Furlough Fights spreadsheet lays out the cases, the players and the arguments in all 23 of the furlough lawsuits now active in the courts.

Editor's note Dec. 21 at 9:44 p.m.: The missing link to the State Compensation Insurance Fund post has been fixed.

Blog backs review your thoughtful and provocative online comments, amplify points, answer questions, correct our mistakes and humbly accept your warranted criticism.

Dec. 17 CCPOA wins Alameda lawsuit; read the court document

Before folks get too excited, they need to read the decision. The judge based his decision on the fact that the correctional officers were usually unable to take their three furlough days in the same pay period in which their pay was reduced, resulting in them working three extra days a month for no pay. Footnote 3 on page 7 of the decision explicitly states that the issue of the Governor's authority to issue the Executive Orders implementing the furloughs was not before the court, although, "[t]he Executive Orders themselves appear to recognize that the emergency necesitating the furloughs was the failure to pass the budgets, though the reach of those orders extended long after those budgets were passed and signed into law." The footnote gives us stateworkers (sic) hope, but the decision did not decide the legality of the Executive Orders.

The commenter has identified a trend in recent furlough arguments: Attorneys are turning their attacks on furloughs away from the issue of executive power to order undpaid days off in favor of more narrow arguments about the process.

This makes sense, one union attorney told us, because early on the issues were still being framed. "No one had ever litigated this before," the attorney said.

But now union lawyers have seen what works and they've refined their arguments.

Take CCPOA's win last week. The union's case has some of the same elements as one the union lost in February before Judge Patrick Marlette in Sacramento Superior Court. Click here to read that petition. The Alameda argument brings in more law, however, and persuaded Judge Frank Roesch to partially grant the union's petition. Click here for his decision.

But no judge has yet said that governor's can't furlough employees. They've said that some can't be furloughed (see this post about the State Compensation Insurance Fund decisions) or that they've been furloughed incorrectly (CCPOA).

And those are questions of process, not power. CalPERS argued in its lawsuit (click here to download a copy), among other things, that the governor doesn't have furlough power. The fund lost the argument last week, as we reported here.

Service Employees International Union Local 1000 and two union members are suing Gov. Arnold Schwarzenegger and the Department of Corrections and Rehabilitation in Marin Superior Court to keep the state from cutting prison educators and the academic and vocational programs they operate.

We've written a bit about this issue in our weekly column and State Worker blog posts such as this one. The essence of the matter: CDCR last fall gave termination notices to about half of the prison system's 1,400 credentialed teachers to cut spending on prison education.

The governor and CDCR said the cuts and job terminations help close what was then about a $20 billion budget gap. The union blasted the plan as a dismantling of vital and legally mandated programs that deter inmates from returning to crime once they leave prison. (Click this link to read AB 900, passed by lawmakers in 2007, for more about the legally mandated part.) The union says that education is about 2 percent of CDCR's overall budget.

The job terminations officially start next month, although Local 1000 spokesman Jim Zamora told us that some teachers may stop work earlier because they have furlough time on the books that they'll take before their pay ends.

Read more about the SEIU lawsuit by clicking the following link.

San Francisco Superior Court Judge Charlotte Woolard has ruled from the bench to uphold yesterday's tentative ruling against CalPERS in its lawsuit to exclude fund employees from Gov. Arnold Schwarzenegger's furlough order. The governor's attorneys will now write the formal order for the judge's signature. Until then, there won't be any other documentation to share with you.

UPDATE at 11:47 a.m.: Here's a statement on the ruling from Schwarzenegger spokeswoman Rachel Arrezola:

"The governor's authority to furlough all state workers is clear and this is another ruling in our favor. As California families and businesses are forced to cut back in today's economy, the governor does not believe that state workers should be shielded from the same economic realities."

We called CalPERS for a reaction knowing it was futile, since fund employees are on furlough today.

Click here to read the tentative ruling that became final this morning.

Side note: As of 11:15 a.m., Alameda Superior Court Judge Frank Roesch had not issued any rulings in the three remaining furlough cases that he is deciding. Click here to read our story in today's Bee about the judge's decision in the CCPOA furlough case.

And this link will take you to our updated Furlough Fights spreadsheet, now showing 24 lawsuits, 23 of them active.

Our story in today's Bee looks at Thursday's decision by Alameda Superior Court Judge Frank Roesch that "self-directed furloughs" for state correctional officers violate the law.

As usual with these kinds of complicated stories, the dictates of time and space forced choices about what to leave in and what to take out. But State Worker blog users get those notes, quotes and observations from the notebook.

We made passing reference in today's report to federal furlough litigation filed by CCPOA this week. The class-action lawsuit argues that self-directed furloughs violate the Fair Labor Standards Act because:

• Employees aren't paid for all work performed within the pay period.
• Time worked on a furlough day isn't calculated toward overtime.
• The state has failed to keep adequate payroll records.

You can read the 8-page court filing, courtesy of Courthouse News, by clicking here

Read more about the CalPERS furlough suit by clicking the following link

Alameda Superior Court Judge Frank Roesch has ruled in favor of California Correctional Peace Officers Association in its furlough lawsuit against Gov. Arnold Schwarzenegger. The court's Register of Actions, pictured below, has just six words that tease the judge's ruling: "Petition for Writ of Mandate Granted."

CCPOA argued that Gov. Arnold Schwarzenegger's order for "self directed" furloughs of prison staff and other state workers at 24/7 facilities violated labor law that stipulates compensation must be paid within a given pay cycle. The union maintained the policy was illegal because workers under self-directed furloughs may lose their pay but not take the time off for weeks, months or years. The deadline for redeeming furlough time is June 2012.

The law also requires payment rendered in cash, but any unredeemed furlough time will not have cash value. CCPOA said that was illegal, too.

Schwarzenegger's attorneys countered that state workers were making up the time quickly and expected no one would have time left on the books by the 2012 deadline.

The case was argued in Roesch's court on Nov. 16 along with three others that attacked furloughs for other reasons. The court hasn't yet issued a decision in any of those cases.

We're working on updates and a story for tomorrow. Meanwhile, you can read the decision by clicking here.

California Association of Professional Scientists v. Schwarzenegger, a furlough lawsuit filed in San Francisco Superior Court last summer, will be heard on Jan. 21 at 9:30 a.m.

The court hasn't yet posted the hearing on its Web site and the judge hasn't yet been announced, CAPS spokeswoman Lisa Marie Burcar told us. We'll let you know when a judge is assigned to the case.

Click here for our July report on the lawsuit, which includes a link to the union's opening brief. This link opens our regularly updated Furlough Fights spreadsheet, which lays out details of all 23 state furlough lawsuits .

Attorney General Jerry Brown has filed this reply brief in the appellate case over whether constitutional officer employees are subject to the furloughs ordered by Gov. Arnold Schwarzenegger.

Here's the introduction:

The most striking aspect of the Governor's brief is that it ignores several dispositive points raised by the constitutional officers. The Governor ignores the fact that his Executive Order-- by its own terms does not apply to the constitutional officers. He ignores his own veto statements showing that the question of the order's application to the officers was mooted by his steep cuts in their annual budgets. And he ignores undisputed facts showing that his office even told the constitutional officers that the order did not apply to them, and that, in response to the Governor's requests, the constitutional officers implemented their own aggressive cost-saving measures. As discussed more fully in the Opening Brief, each of these factual points presents an independent reason why the Executive Order cannot be enforced against the constitutional officers. Yet the Governor, for some reason, has chosen to ignore them.

Click the following link for more.

The furlough lawsuit brought by the California Association of PsychiatricTechnicians is set for hearing on Jan. 15.

The hearing date is noted at the top of this court brief, which CAPT filed on Monday. The union also mentioned the hearing toward the bottom of this press release.

Regular State Worker blog users will recall that this case was the battleground that Gov. Arnold Schwarzenegger's legal team selected to argue that all the furlough lawsuits should be coordinated in Sacramento. Judge Timothy Frawley disagreed, for reasons we reported here.

You can click here to read the union's brief. Click here to see all the state furlough lawsuits on one spreadsheet.

California Association of Professional Scientists and Professional Engineers in California Government have filed their last furlough lawsuit appeal, which is now in Sacramento's 3rd District Court.

CAPS and PECG argue, among other things, that even though their labor contracts have expired, the surviving provisions of those deals specifically provide for a 40-hour work week. That means the governor can't unilaterally alter the work week of state engineers and state scientists without negotiating it at the bargaining table, or without the Legislature's approval. Obviously, neither of those things happened.

We asked Lisa Marie Burcar, spokeswoman for CAPS and PECG, when the case might go to oral argument. "We hope it will be heard as soon as possible in 2010," she said. "We're going to request a date for oral argument ASAP."

And when might the court render a ruling? Hard to say. There's no decision deadline the appeals court must meet after it hears arguments.

Click here to read the CAPS and PECG brief. And this link will take you to our regularly updated Furlough Fights spreadsheet.

The Department of Personnel Administration has launched another preemptive legal strike against a state worker union.

This time the administration is asking the courts to keep SEIU Local 1000 from seeking contract arbitration over holiday and overtime changes in SBX3 8.

DPA's 285-page document argues that Local 1000 can't seek arbitration for matters already taken to the Public Employee Relations Board and the courts. It's the same kind of litigation DPA filed against the International Union of Operating Engineers and Professional Engineers in California Government when those unions said they wanted furlough arbitration.

The complaint, filed with the court on Tuesday, is too big for our blog software to load. If you want to read the document, click here and enter 00064854 in the case number field. Scroll down to "Complaint" and click "View." The 9,566-kilobyte file could take several minutes to load depending on your Internet speed.

From the anxious e-mails and phone calls we've received, it was probably a long weekend for some state workers who are dying to learn how Judge Frank Roesch rules since hearing arguments in four furlough lawsuits in Alameda Superior Court.

Click the following link to read how the judge might rule, and when.

Gov. Arnold Schwarzenegger's attorneys have filed their arguments for why employees in departments and agencies run by constitutional officers are subject to the executive's emergency furlough authority.

As you'll recall, Lt. Gov. John Garamendi, Secretary of State Debra Bowen, Treasurer Bill Lockyer, Superintendent of Public Instruction Jack O'Connell, Insurance Commissioner Steve Poizner, Attorney General Jerry Brown and the Board of Equalization did not furlough their employees. Roughly 15,000 employees work under them.

The constitutionals -- except for GOP gubernatorial candidate Poizner -- sued to maintain what they say is a constitutional independence that extends to how they handle staffing. They lost the first round in Sacramento Superior Court and appealed to Sacramento's 3rd District Court.

Click the following link to read the governor's rationale for furloughing constitutional officer employees.

From Jon Ortiz in Oakland:

OAKLAND -- Lawyers representing state worker unions and a few government agencies pounded away at Gov. Arnold Schwarzenegger's furloughs for the better part of three hours this morning in Alameda Superior Court, arguing that the policy is illegally harming the government, an overreach, a violation of minimum wage laws and outrageously irrational.

And that was in just two cases brought by California Attorneys, Administrative Law Judges and Hearing Officers in State Employment and California Correctional Peace Officers Association to Judge Frank Roesch's Oakland courtroom. SEIU Local 1000 and Union of American Physicians and Dentists will argue their cases this afternoon.

Roesch took both cases under submission and he'll probably do the same with those he hears this afternoon, which means he's going to think about what he's heard and issue a ruling later. That could take several days or several weeks.

What came across this morning from Roesch's questions is that he wonders whether the "emergency" that triggered Schwarzenegger's executive order is really an emergency. At several junctures he asked Schwarzenegger attorneys David Tyra and Will Yamada to define the word. At one point the judge asked, "How can you have an emergency that's 17 months long?" Schwarzenegger's furlough order, which took effect in February, expires in June.

As attorneys debated whether special fund departments and agencies should be furloughed - the two sides can't agree on whether there are five or 13 departments that receive no general fund money and whose money is untouchable for borrowing - CalPERS and CalSTRS attorney Harvey Liederman likened the indiscriminate nature of the policy a scene from one of the governor's films.

"The Terminator can sweep the machine guns and count the bodies, friend or foe, later," he said. "CalPERS and CalSTRS are collateral damage."

As some in the courtroom laughed and talked over each other, Tyra said, "That's disrespectful."

Court resumes at 1:15. We'll have more for you later.

Alameda Superior Court Judge Frank Roesch late Thursday issued identical tentative rulings in the four furlough cases scheduled for hearing on Monday. Here's a snapshot of the court Web site with the ruling handed down in CCPOA v. Schwarzenegger, CASE v. Schwarzenegger, SEIU v. Schwarzenegger and UAPD v. Schwarzenegger:

That's it.

Here's a trivia question that may not be so trivial: How many agencies or departments within California state government get zero general fund dollars and whose money can't be tapped for short-term loans to the general fund?

Answer: Five, according to the Department of Personnel Administration.

Alene Shimazu, chief of DPA's Office of Financial Management and Economic Research , came up with the answer in a declaration that's part of SEIU v. Schwarzenegger, one of four cases scheduled for a hearing Monday in Alameda Superior Court:

Click the following link for more about this distinct group of departments and agencies.

California Correctional Supervisors Organization has filed a furlough lawsuit naming the California Department of Corrections and Rehabilitation and the Department of Personnel Administration as defendants. The group, whose Web site you can view by clicking here, makes this argument:

Thus, correctional supervisors are required to work a 40 hour work week, of which three work days (24 hours) per month are uncompensated with the hope that the Department, depending upon staffing levels, will allow supervisors to take "furlough days" off from work during the pay period in which they are accrued. The decision to allow a correctional supervisor to take a furlough day is at the discretion of their supervisor and on many occasions correctional supervisors are not allowed to take furlough days during the pay period in which they are accrued. As such, plaintiff alleges that correctional supervisors are not being fully compensated for work performed for the State of California and the California Department of Corrections and Rehabilitation during the pay period in which the work was performed.

The organization filed its lawsuit in Sacramento Superior Court on Nov. 6. Click here to download the 7-page brief.

IMAGE: www.yolocourts.ca.gov

California Attorneys, Administrative Law Judges and Hearing Officers in State Employment has filed its reply to Gov. Arnold Schwarzenegger's argument that employees paid with money outside of the general fund should be furloughed and that the policy hasn't hurt government services. For those who want to view the matter on our Furlough Fight Timeline, it's (11) CASE v. Schwarzenegger, others, case no. RG09-453982.

CASE argues that the governor's position that furloughs haven't had a significant impact on operations at specially-funded agencies is backed by a series of "conclusory and incompetent" declarations by various government officials.

Read more about this key furlough lawsuit by clicking the following link.

The Department of Personnel Administration has filed a complaint against International Union of Operating Engineers, seeking to keep the union from seeking furlough arbitration.

DPA's 257-page amended brief -- which is so big that it exceeds our blog software's uploading capacity -- argues that the union has "improperly invoked a provision in the Memorandum of Understanding seeking to arbitrate their grievance over the Governor and DPA's adoption and implementation of the furlough program."

Click here to read the shorter, unamended brief DPA filed first on Tuesday. For the larger brief, click here and enter 00062715 in the case number field. Scroll down to "Amended Complaint," click "View," and then take a bathroom break or grab some lunch. The 11,365 kilobyte file takes a loooooooong time to load.

SEIU Local 1000 has filed a brief in SEIU Local 1000 and Yvonne Walker v. Arnold Schwarzenegger, one of four furlough lawsuits scheduled for hearing in Alameda Superior Court on Nov. 16. The document lays out two broad arguments for overturning Gov. Arnold Schwarzenegger's furloughs:

• The governor abused his discretion by ordering an across-the-board furlough.
• The governor abused his discretion by furloughing employees at special fund, federally funded and self-supported departments and agencies.

You can view the union's 170-page filing by clicking here. (Requires Java.) It includes sworn declarations from state workers about how furloughs are affecting them.

The governor's legal team also filed this 145-page brief, defending his furlough orders. The analysis:

• The court is not empowered to issue mandamus relief to invalidate a discretionary act by the governor falling within his constitutional and statutory authority.
• Petitioner has failed to demonstrate that furloughing state employees regardless of the funding source for the agency in which they are employed, does not benefit the general fund or the overall fiscal well-being of the state.

The governor's brief includes declarations by state officials that furloughs haven't hampered departments' missions. There's an exhibit of state government entities and how much of their money comes from the general fund. And there's a transcript of the Jan. 29 furlough hearing in Sacramento Superior Court that ended with Judge Patrick Marlette determining that Schwarzenegger's furloughs are authorized by law.

IMAGE: www.ca.gov.yolocourts

In a legal equivalent of waving a white flag, attorneys for Gov. Arnold Schwarzenegger didn't ask for a chance to change a judge's mind after he said that several furlough lawsuits filed around the state shouldn't be pulled into Sacramento Superior Court.

As a result, Judge Timothy Frawley's tentative ruling Thursday stands: The furlough cases are dissimilar enough to keep in separate courts.

A hearing over whether to coordinate the cases had been scheduled for 1:30 p.m. today in Frawley's courtroom. But after the judge issued the tentative ruling to keep the cases separate, the governor's attorney's didn't call to confirm that they wanted to argue their side at the hearing. The court gives attorneys until 4 p.m. the day that a tentative ruling is handed down to verify that they still want the scheduled hearing.

That means the ruling stands.

Schwarzenegger's lawyers had argued that several furlough lawsuits in various superior courts should be brought to Sacramento for the sake of convenience and in the "interest of justice." State employee unions, led by California Association of Psychiatric Technicians, have opposed the idea. Schwarzenegger has won a few furlough cases in Sacramento. He lost two in San Francisco, where three more lawsuits are pending. Four cases in Alameda County are set for a Nov. 16 hearing. Those cases would have probably been delayed had Schwarzenegger won the coordination argument.

Click here for our new Furlough Fight spreadsheet to see where this case fits in the litigation universe.

And click here for more about Frawley's tentative-now-final decision.

Hundreds of thousands of dollars. Six courts in four counties. A legion of lawyers. Nearly two dozen lawsuits stretching back nearly a year.

No wonder we're having trouble staying on top of state furlough litigation.

In an effort to corral the cases, name the players and identify the issues, we've built a spreadsheet. You can download the table by clicking here.

It's not perfect, and we know it. We'd like this to be a go-to resource, but we need your help.

First, if you're an official who can speak for one of the parties involved and you see info that needs to be changed, contact The State Worker via e-mail with the specifics. Distilling 21 court cases into a few easy-to-read lines is more art than science.

Second, we're looking for a handful of State Worker users to help us keep the table updated and to alert us to newsworthy documents that deserve posting on the blog. Maybe you're an attorney or a union activist. Maybe you're just intensely interested in a particular furlough case. If you'd like to get involved with building this chart, shoot us an e-mail with which cases you'd like to report.

Click the link below for more about the furlough spreadsheet.

Superior Court Judge Timothy Frawley has tentatively ruled against Gov. Arnold Schwarzenegger's motion to transfer and coordinate furlough lawsuits in San Francisco and Alameda courts to Sacramento. Here's a significant passage from the six-page ruling:

Taking all of the section 404.1 factors into account, the Court concludes that coordination of the Included Actions in Sacramento would not promote the ends of justice.

As to the Special Fund cases, there are virtually no factors supporting coordination of those cases with the Psychiatric Technicians case.

As to the CCPOA case, while there may be some benefit to coordinating the actions to reduce the risk of inconsistent adjudications, because the predominating questions of fact and law in the actions are unique and different, and because the CCPOA case has been significantly litigated and has an imminent date set for hearing on the merits, the Court concludes that coordination would not promote the ends of justice.

The motion to coordinate is therefore DENIED.

Frawley could change his mind after tomorrow's 1:30 p.m. hearing, but judges rarely retreat from their tentative decisions. Click here to read today's ruling. For background on the governor's motion and tomorrow's hearing, click here.

Attorneys for Gov. Arnold Schwarzenegger have filed their opening brief in San Francisco's 1st District Court of Appeal, hoping to reverse Judge Peter Busch's decision that the governor illegally furloughed legal professionals at State Compensation Insurance Fund.

You can read more about that case, won by California Attorneys, Administrative Law Judges and Hearing Officers in State Employment, by clicking here.

The brief filed on Tuesday by attorney David Tyra makes two arguments for reversing Busch's ruling.

First, CASE's lawsuit shouldn't have been heard because it mirrors the union's first furlough lawsuit in Sacramento Superior Court. (That case is now on appeal in the 3rd District Court.)

Second, Busch was wrong to interpret furloughs as equal to the "staff cutbacks" at State Fund. Such cutbacks are specifically prohibited by state insurance code. Here's the language of that law:

Notwithstanding any provision of the Government Code or any other provision of law, the positions funded by the State Compensation Insurance Fund are exempt from any hiring freezes and staff cutbacks otherwise required by law.... (Insurance Code section 11873).

A second San Francisco Superior Court judge found furloughs at State Fund were "staff cutbacks" and ruled against Schwarzenegger in a lawsuit brought by SEIU Local 1000. Click here for a State Worker blog post about that case, which the governor also has appealed.

Click here to download the 57-page brief.

IMAGE: Sacramento Bee, 2008

Colleague Dale Kasler has a bit more in today's Bee on California Attorney General Jerry Brown's lawsuit against Boston-based State Street Bank and Trust for overcharging CalPERS and CalSTRS. We had the news in this quickie Tuesday blog post. Dale's story, which you can read here, fleshes things out.

We contacted Brown's press secretary,Christine Gasparac, and requested the unsealed complaint. She quickly sent over the file, which you can read by clicking here.

California Association of Professional Scientists has filed a lawsuit against Gov. Arnold Schwarzenegger over the paid holiday changes that have been a point of contention for several months.

Click here to download the 6-page brief.

For background, this link will load up the first blog post about changes to the holiday calendar, "Steinberg says Democrats could vote to eliminate state holidays." Clicking here will open "Budget makes big changes to state worker overtime rules," which includes a link to SBX3 8, the bill at the center of the holiday controversy.

The constitutional officers, led by State Controller John Chiang and represented by Attorney General Jerry Brown, filed their opening brief in the 3rd District Court of Appeal. As you'll recall, the constitutionals want to keep their employees furlough-free. They're arguing that their constitutional independence means that they can run their shops -- including the schedules of the combined 15,000 or so state workers in their agencies and departments -- as they see fit.

(Quick primer for new blog users: The constitutional officers include Chiang, Brown, Lt. Gov. John Garamendi, Secretary of State Debra Bowen, Treasurer Bill Lockyer, Superintendent of Public Instruction Jack O'Connell, Insurance Commissioner Steve Poizner and the Board of Equalization.)

Click here to read the constitutional's opening salvo in this new chapter of the furlough fight. This link will hook you up with a June blog backgrounder on the case/

The Social Security Administration has filed a statement in an Alameda County Superior Court lawsuit that says California's furloughs of state Disability Determination Services Division hamper the state's obligations and responsibilities under the Social Security Act.

The law requires states to provide an adequate number of qualified staff to determine disability applications and, "to the best of its ability, facilitate the processing of disability claims by avoiding personnel freezes, restrictions against overtime work, or curtailment of facilities or activities."

California's furlough of DDSD employees costs the state $849,000 per furlough day in administrative funding and causes delays that cost disabled Californians over $420,000 in Social Security benefits, according to this press release.

The federal statement was filed in Union of American Physicians and Dentists v. Arnold Schwarzenegger, Governor of California. The case is scheduled for hearing on Nov. 16.

Click the link below to view the union's complaint, the Social Security Administration's filing in the case and what Vice President Joe Biden has said about DDSD.

This just in from the California Association of Psychiatric Technicians:

State-employed Psychiatric Technicians filed a lawsuit today against Governor Arnold Schwarzenegger, claiming his elimination of holidays and holiday pay not only specifically hurts those working in California's round-the-clock facilities, but also breaks a major labor law.

The California Association of Psychiatric Technicians' lawsuit argues Governor Schwarzenegger broke the so-called "Evergreen Law" when he eliminated two state holidays - Lincoln's Birthday and Columbus Day - as well as time-and-a-half pay for other holidays as part of a state budget bill earlier this year.

According to the Evergreen Law (California Government Code Section 3517.8), expired state-employee union contracts remain in effect until either a new contract is agreed upon or the union and state reach impasse. As neither an impasse has been reached nor has a new contract been agreed upon, CAPT argues the governor violated the Evergreen Law as well as its 2006-2008 contract, which includes the two holidays as well as time-and-a-half pay for holiday work.

Read the lawsuit, filed in Sacramento Superior Court, by clicking here. Read the CAPT press release by clicking this link.

IMAGE: yolocourts.ca.gov

We had a question after SEIU Local 1000 won its furlough lawsuit on behalf of workers it represents at State Compensation Insurance Fund. You'll recall that San Francisco Superior Court Judge Charlotte Woolard case said the state owed back wages plus 7 percent interest. Click here if you need a refresher on that decision.

But what about the trailblazing lawsuit that cleared the path for Local 1000's win? California Attorneys, Administrative Law Judges and Hearing Officers in State Employment was the first union to successfully argue that furloughs equaled staff cuts at the fund and as such are forbidden by law. Here's where you can read more about that.

But the CASE ruling didn't specify interest on the back pay. So we called CASE attorney Patrick Whalen and asked whether that was an oversight. It took a while for Whalen to get back to us -- he was out of the country -- but here's what he said:

Click the link below to read an e-mail from Whalen.

From: Ellison Wilson Advocacy
Sent: Friday, October 16, 2009 10:59 AM
To: Ortiz, Jon - Sacramento
Subject: Delayed response

Jon:

Just got back from vacation in Europe and in checking my numerous cell phone messages (which was turned off - doesn't work in Europe), heard yours from a while ago.

Short answer to your question re interest is that we believe we are covered by Woolard's order since it applied to all SCIF employees. Our understanding is the SCIF and Controller are working on calculating the interest but it is a different process than simply reimbursing for salary, and so will take some time.

Pat

The California Medical Association is suing Gov. Arnold Schwarzenegger over furloughs that it says have illegally taken money from the Medical Board of California to help plug the state's deficit-riddled general fund.

The furloughs have created licensure, investigative and enforcement delays, the lawsuit says, because the policy has cost the board about 5,100 work hours so far. The doctors want the board's employees exempted from furlough order lifted $6 million in board funding restored.

Click here to read the CMA court brief. This link will take you to the San Francisco Superior Court docket. Click here to read the CMA press release.

Gov. Arnold Schwarzenegger is moving to pull several furlough lawsuits into Sacramento Superior Court. In this court filing, attorneys for the administration argue that the action "is appropriate because the actions share common questions of fact and/or law ... promote the ends of justice," would be more efficient, more convenient for the parties, and avoid the risk of conflicting judgments.

A footnote on page 5 says that the government expects more furlough lawsuits and wants the order in this case to cover subsequent cases.

Click here to view the court document.

"Although the date on the front of the document says Oct. 2, there was a challenge to having Judge Marlette hear it so it's now scheduled for Oct. 30 before Judge Frawley,"
DPA's Lynelle Jolley told us in an e-mail.

Court Files introduce lawsuits of interest to state workers. We highlight the case, link you to the file and show you where to track developments on your own.

• Click on the case number below to download the file. (57 pages)
• Check for subsequent filings on the Sacramento Superior Court's document viewing page. Plug the case number into the appropriate field, click the search button and then scroll down to see a list of documents filed.

Case No.: 2009-80000324
Filed: 09/18/2009
Petitioner: Robert Jones, DDS
Respondent: Governing Body of the California Department of Corrections and Rehabilitation, Division of Correctional Health Care Services

Here's a case that gives an a peek into the state prison system's dental care policies. CDCR suspended the clinical privileges of Robert Jones, who worked as a dentist at Salinas Valley State Prison in Soledad after reports and a ruling by the department's Professional Practices Executive Committee that he didn't do his job:

The specific reported incidents of deficient care include failures to perform periodontal charting or take x-rays when indicated, failures to correctly diagnose patients, failures to use standard techniques in removing teeth, failures to use ultrasonic dental sealers; properly, failures to consistently obtain the informed consent of patients, and providing treatment absent documented indications.

The court file includes 17 "simple departures" from practice, one "extreme departure" and 18 "other departures," and documents used to review dental care cases.

Jones is challenging the authority behind the decision, which he says should be handled by a prison peer review committee. The filing says another administrative hearing planned for Oct. 13 is "bogus." Jones has asked the court to immediately stop the proceedings, dismiss the matter and order any subsequent reviews go before a peer review committee at Salinas Valley State Prison.

The State Worker has received the brief filed by SEIU Local 1000 with the Third District Court of Appeal that seeks to overturn a Sacramanto Superior Court Judge's ruling that Gov. Arnold Schwarzenegger's furlough order is legal. Click here to read the 75-page PDF. (It might take a minute to download, depending on the speed of your Internet connection.)

Among Local 1000's arguments:

• The governor's power to issue executive orders is limited by the state constitution and the Legislature.
• Judge Patrick Marlette's ruling is unconstitutional because it "impairs vested contractual rights."
• Marlette's order violates state workers' due process rights.
• The order violates the DIlls Act and other laws.

Other state worker unions have filed appeals with the court. You can read about the state scientists and state engineers appeal by clicking here. And this link will send you to a blog post about the state attorneys' and legal professionals' appeal.

The group that represents state attorneys, hearing officers and administrative law judges is turning to the courts with a lawsuit against the Schwarzenegger administration over a law passed in February, claiming that eliminating two paid state holidays is illegal and violates their union contract.

The holidays at issue are Lincoln's Birthday (Feb.12)  and Columbus Day, which this year falls on Oct. 12.

The union, CASE -- the California Attorneys, Administrative Law Judges, and Hearing Officers in State Employment -- first filed a grievance in August with the Department of Personnel Administration.

In a statement on its Web site, the CASE board of directors says DPA failed to respond and completely ignored the grievance. So late on Thursday, CASE filed a civil complaint in San Francisco Superior Court asking for an injunction to stop the elimination of the paid days off.

CASE said the two holidays are "material, bargained-for contractual rights," and it's vowing to do whatever it must to protect them.

DPA spokeswoman Lynelle Jolley wasn't immediately available to comment -- it's furlough Friday -- but we'll update if she gets back to us.

To read the court case records, click here.

State Fund employees are off furlough. Immediately.

A decision signed this morning by San Francisco Superior Court Judge Charlotte Woolard ends unpaid days off for all 7,900 or so State Compensation Insurance Fund employees throughout California, according to an announcement by SEIU Local 1000, which represents about 6,000 fund employees.

Woolard had ruled in favor of the union earlier this month. Today's hearing formalized that decision, which mirrored an earlier judgment in favor of about 500 fund legal staff.

According to a Local 1000 release, "The order also prohibits the Governor and DPA from arguing the order should be stayed pending appeal. This allows the State Controller's Office to reprogram the payroll system to full pay for SCIF workers immediately."

The local said that Gov. Arnold Schwarzenegger's attorneys tried to keep the union from seeking back pay: "After hearing arguments the judge rejected the governor's attempt and entered an order ending the furloughs."

The union is going to "vigorously pursue retroactive back pay with interest for its members."

Fund President Jan Frank filed a successful complaint on behalf of employees not represented by SEIU to include them in the decision.

We'll post the court order later today.

On a related furolough lawsuit note, Local 1000 has filed its furlough appeal with the Third District Court in Sacramento. The local, along with Professional Engineers in California Government, California Association of Professional Scientists and California Attorneys, Administrative Law Judges and Hearing Officers in State Employment have all filed briefs seeking to overturn the Jan. 29 decision by Sacramento Superior Court Judge Patrick Marlette that supported Schwarzenegger's furlough order. Click here to see the court's register of actions in the case.

The document is so massive, we're told, that the union hasn't had time to scan it and send it to TSW so that we can post it. (The court's Web site doesn't provide document viewing.) Union spokesman Jim Zamora said that we'll get it soon. We'll post the brief immediately after it lands in our e-mail inbox.

There's been no court date set and there won't be for quite some time

Professional Engineers in California Government and California Association of Professional Scientists have filed their opening brief with the Third District Court of Appeal in Sacramento. The unions are seeking to overturn the Jan. 29 decision by Sacramento Superior Court Judge Patrick Marlette that supported Gov. Arnold Schwarzenegger's furlough order.

The unions' arguments:

• The governor's order illegally cuts pay and hours.
• The order conflicts with employment contracts covering the engineers (Bargaining Unit 9) and the scientists (BU 10).
• The governor doesn't have unilateral authority under the state constitution to cut hours and pay. That power resides with the Legislature.
• The contracts of both unions specifically call for a 40-hour work week.
• Neither bargaining unit's contract has language that permits the governor to unilaterally cut hours or pay.

Click here to download the brief. It's 53 PDF pages.

There's been no court date set and there won't be for quite some time. We'll keep The State Worker users in the loop by posting significant documents as they are filed in the back-and-forth leading up to a hearing.

Service Employees International Union Local 1000 has filed its fifth furlough lawsuit, this one in San Francisco Superior Court.

The complaint, which you can read by clicking here, argues from several angles that Gov. Arnold Schwarzenegger's furlough order is illegal.

We were struck by how some of the points raised in the lawsuit have been raised by users of this blog. Among the union's arguments:

• Schwarzenegger misused his emergency declaration authority to order the furloughs: "Those powers are used arbitrarily and capricously when they undermine Legislative decision-making about political solutions to budget problems."
• The budget impasse that prompted the emergency order is over, but the furlough order remains in effect.
• The order violates the separation of powers laid out in the state constitution.
• The furlough order violates employment agreements, breaking federal and state constitution provisions "that prohibit the impairment of contracts."
• Furloughs are "wasteful mismanagement of state resources" that "achieve no substantial benefit to the general fund ..."

Local 1000 is seeking coverage of its litigation costs and "such other and further relief as the Court deems appropriate." A hearing date hasn't yet been set.

IMAGE: www.yolocourts.ca.gov

Well, here's another one.

The California Association of Psychiatric Technicians has filed a lawsuit against Gov. Arnold Schwarzenegger over his furlough policy. The union, which represents about 7,000 state workers, filed this document in Sacramento Superior Court.

CAPT makes three arguments against Schwarzenegger's furlough policy:

The furloughs violate California Labor Code Section 212. Furlough days are entirely unpaid, which CAPT says makes them illegal under Section 212. Psych techs are being paid for 32 hours out of a 40-hour workweek (many have to work the unpaid day due to staffing shortages), which also violates the code. (Click here and scroll down the page to read Labor Code Section 212.)

Departments aren't following Schwarzenegger's executive order that requires employees to take unpaid furlough days off work. Since management regularly denies requests for furlough time off to maintain legally adequate staffing, departments are violating the governor's court-approved order.

Schwarzenegger's third furlough day violates collective bargaining law. When lawmakers said no to the governor's 5-percent pay-cut plan, he went ahead with the third furlough day. But CAPT says that move was a salary reduction that violates Government Code Section 19826(b). We've experienced trouble linking to the appropriate page, so we pasted the text into the blog. Click the link below to read it.

There's no date set yet for a hearing in this matter.

Court Files introduce lawsuits of interest to state workers. We highlight the case, link you to the file and show you where to track developments on your own.

• Click on the case number below to download the file. (77 16 pages)
• Check for subsequent filings on the Sacramento Superior Court's document viewing page. Plug the case number into the appropriate field, click the search button and then scroll down to see a list of documents filed.

Case No.: 00054223
Filed: 07/29/2009
Petitioner: Department of Personnel Administration
Respondent: Professional Engineers in California Government

DPA, on behalf of Gov. Arnold Schwarzenegger, sued PECG on Wednesday in Sacramento Superior Court, alleging that the engineers' union has ...

... improperly invoked a provision in the expired Memorandum of Understanding seeking to arbitrate their grievance over the Governor and DPA's adoption and implementation of the two furlough days per month. Defendants seek to employ this expired arbitration provision to arbitrate the question of whether the Governor was authorized persuant to an Executive Order declaring a fiscal emergency to implement a two day furlough per month for all represented employees including Bargaining Unit 9. Defendants seek to arbitrate this issue despite the fact that defendants have already litigated and lost in Sacramento Superior Court the exact same issue and have in fact appealed this decision to the Third District Court of Appeals. In an effort to prevent duplicative efforts and the possibility of conflicting rulings, plaintiff requests injunctive relief to prevent irreparable harm as well as to prevent the frustration of plaintiff's rights to a meaningful and appropriately focused arbitration between the parties over this issue.

The history of this case goes all the way back to PECG's Dec. 22 lawsuit, the first to challenge Schwarzenegger's furlough order. PDF pages 9 through 12 lay out a concise history all the way up to this week's court action by the administration.

We've talked to Bruce Blanning, PECG's executive director, about the administration's action. He disagrees that the union's grievance or call for arbitration duplicates the December lawsuit, which asserted that the governor doesn't have the legal authority to impose reduced hours and commensurate wage reductions on state workers. PECG's grievance and hoped-for arbitration would be about whether the governor violated Bargaining Unit 9's contract, Blanning said.

We called DPA today. They'll get back to us next week.