Committee to Defend Reproductive Rights v. Cory

The court also emphasized the “fundamental and intimate nature” of a woman’s constitutional rights to life and the preservation of her health, and of procreative choice, and the severe practical impairment of those rights which would result from the funding restrictions. (29 Cal.3d at pp. 274-275.) The utility of imposing the funding restrictions did not “manifestly outweigh” that impairment. (Id., at p. 282.) The court rejected the argument that the restrictions would curtail state expenditures, and concluded that whatever money would be saved by refusing to fund abortions would be spent many times over paying maternity care and childbirth expenses. (Id., at p. 277.) The court also pointed out that while the restrictions may have been intended in part to protect the potential life of the fetus, the state had made no effort to protect the potential life of all fetuses. Instead, the state had singled out poor women only, thereby impermissibly interfering with their constitutional right of procreative choice. (Id., at pp. 278-281.)

Respondents Myers and Cory recognize the Supreme Court’s decision in Committee to Defend, but state that the Budget Act of 1981 is a new

Respondent Myers concedes that if the restrictive language is declared unconstitutional, abortions must be financed out of the money allocated to the Medi-Cal program through the Budget Act of 1981. Respondent Cory expresses no position on this question. The Senate of the State of California, appearing as amicus curiae in this proceeding, is of a different view.

Amicus does not argue that the Budget Act restrictions at issue are constitutional. Instead, amicus urges that the Legislature did not intend to appropriate funds for Medi-Cal funded abortions except under a few circumstances, and that there are no funds appropriated for abortions except under those limited circumstances. Amicus argues that any order directing a state officer to ignore those restrictions would amount to a court-ordered appropriation, in violation of the constitutional separation of powers doctrine.

The separation of powers doctrine restricts a court from directly ordering the Legislature to enact a specific appropriation. However, that doctrine does not preclude the judiciary from ordering that funds which have been appropriated should be paid without regard to an invalid legislative restriction. “If, in the absence of such invalid restriction, appropriated funds are reasonably available for the expenditures in question, the separation of powers doctrine poses no barrier to a judicial order directing the payment of such funds.” (Mandel v. Myers (1981) 29 Cal.3d 531 , 542 [ 174 Cal.Rptr. 841 , 629 P.2d 935 ].)

In Mandel, the expenditure at issue was a payment to satisfy final judgment awarding attorney fees against various state agencies and officers. After the state did not voluntarily comply with the judgment, the trial court ordered the State Controller to pay the award out of the funds appropriated in the 1978-79 Budget Act for the operating ex

The Supreme Court rejected the Attorney General’s argument that the trial court’s order violated constitutional separation of powers principles. The court looked to the terms of the Budget Act itself, and to past administrative practice, and concluded that the general operating expense appropriation was a category broad enough to encompass court-awarded attorney fees. The court recognized that the Legislature intended to deny payment of this award: a legislative committee had deleted from the act an express line-item appropriation for the fee, and the act itself provided that no appropriation made therein was to be used to achieve any purpose which had been denied by any formal action of the Legislature. Nevertheless, the question was whether such an exclusion of a particular award from the general appropriation provided in the agency operating expense budget was valid. The exclusion was unlawful, the court concluded, because it amounted to a legislative readjudication of the merits of a final court judgment, an impermissible usurpation of traditional judicial authority. (Mandel, supra, 29 Cal.3d at p. 552.)

Legislative intent to deny payment is apparent in this case, as well. However, as we have stated, our Supreme Court has already declared identical funding restrictions to be unconstitutional, and we repeat that amicus does not contend otherwise. Consequently, the only question remaining is whether funds already appropriated are generally available to pay for abortions obtained by Medi-Cal recipients. (Mandel, supra, 29 Cal.3d at p. 542.) When there is an unconstitutional restriction in an existing appropriation, it offends no constitutional principle to direct that the disputed payments be made from funds already appropriated for the same general purpose. (See id., at p. 558 (dis. opn. of Richardson, J.).)

An appropriation need not specifically refer to the particular expenditure in question to be available for its payment. (Mandel, supra, 29 Cal.3d at pp. 543-544.) That portion of the Budget Act of 1981 which appropriates funds for health services to be provided under the MediCal Act does not enumerate all the specific services for which payment is available. Instead, item 426-101-001 of that act appropriates $2,450,333,143 for “local assistance, Department of Health Services, Medical Assistance Program.” Of that sum, $2,317,249,570 are allocated for the broad category of “Benefits (Medical Care and Services).”

Because this matter is before us on a petition for an original writ in the Supreme Court rather than an appeal, we are unable to remand the matter to the court in which the trial was held for the purpose of taking evidence on, and fixing, the amount of fees to be awarded. (Mack v. Younger (1980) 27 Cal.3d 687 , 689 [ 165 Cal.Rptr. 876 , 612 P.2d 966 ].) We could fix that amount ourselves on affidavits of the parties (see Choudhry v. Free (1976) 17 Cal.3d 660 , 669 [ 131 Cal.Rptr. 654 , 552 P.2d 438 ]) or appoint a referee to make the determination (see Mack v. Younger, supra, 27 Cal.3d at p. 689). According to petitioners, the cost award, including attorneys’ fees, for the three cases underlying Committee to Defend, supra, 29 Cal.3d 252 , is still pending before the San Francisco Superior Court. As this matter is closely related to those cases, we appoint the trial court judge before whom that cost award is pending as referee to take evidence and fix the amount of fees to be awarded in this case as well.

White, P. J., and Feinberg, J., concurred.