Theroux v. State of California

COMPTON, Acting P. J.

I concur but because of my dedication to the doctrine of the separation of powers I feel compelled to express some additional thoughts.

Judicial decisions, which directly or indirectly mandate the Legislature to appropriate public funds for a particular purpose, are clearly an affront to the doctrine of separation of powers. In my opinion, however, that doctrine appears less forbidding when the Legislature is acting in the role of an employer.

Further, from the history of the legislation and the background against which it was enacted, it is obvious to me that the Legislature initially desired the very result which we reach here but was persuaded that, because of the delay inherent in the legislative process and the additional delay occasioned by the need to override the Governor’s veto, such result was not attainable.

Since the Supreme Court in Jarvis v. Cory (1980) 28 Cal.3d 562 [170 Cal.Rptr. 11, 620 P.2d 598], rightly or wrongly, swept aside the prohibition against retroactive pay raises, it seems only fair that the Legislature be permitted to do what it would have done absent the fear of being frustrated by the courts.

At oral argument in this matter, we were advised by the Attorney General that, in addition to the compensation for these employees, the state would *10be required to fund a substantial administrative cost in identifying and locating the employees who are no longer in the employ of the state.

Since this is a class action and further proceedings to fashion a judgment are contemplated, I suggest that our holding does not, a fortiori, require the state to seek out the beneficiaries of this decision. A procedure should be developed whereby payment will be made only to those persons who present a claim within a fixed reasonable period of time.