I write separately because I join in part" the reasoning, if not the rhetoric, of my dissenting colleague.
The facts are clear. The Legislature has never appropriated funds to pay for the attorney fees requested in this case. In fact, the Legislature has specifically refused to appropriate funds for this purpose.
I am sympathetic with the majority’s desire to see this legally valid judgment honored. However, I am disturbed by the majority’s avoidance of the real issues by finding that the legal fees were authorized by the Legislature. All the objective facts point to a contrary conclusion. Creating a fiction and ignoring clear legislative intent will only lead in the long run to an emotional confrontation between this court and the Legislature.
Perhaps discretion is the better part of valor, but this court is only postponing the resolution of this thorny constitutional problem for another day. The majority skirt the issue of a court’s power to enforce legal judgments which the Legislature refuses to pay. I suspect this problem will not become any more tractable with the passage of time. I would have preferred this court to grapple with this complicated issue directly by confronting the constitutional clash between the powers of the judicial and legislative branches of our government. As life often teaches us, avoidance will not make the problem disappear, for cases such as Serrano v. Priest (2 Civ. 58971, app. pending) lurk in the shadows.
Two questions are raised by this appeal. May the state with impunity ignore or refuse to pay its valid legal debts or judgments? Does the *560doctrine of separation of governmental powers render the judiciary impotent to enforce valid judgments against the state when the Legislature refuses, without legal justification, to appropriate money for that specific purpose?
Although I agree with Justice Richardson that the Legislature did not appropriate any monies to pay these legal fees, I feel constrained to voice a reservation concerning his absolutist position. What are the powers of this court when the Legislature decides to use the power of the purse to deliberately discriminate against one sector of the community in violation of the Constitution? Under the dissent’s sweeping doctrine, the courts would be powerless to remedy that situation.1 Certainly, that cannot be what our forefathers intended when they developed our tripartite system of government with its separation of judicial, legislative, and executive functions.
Comity is an important concept in' the peaceful operations of a democratic government. Unless each branch of government has respect for the legal actions of the other branches, the democratic process will falter and eventually fail.
The Legislature has refused for no apparent reason to recognize the legal obligation the state owes these attorneys for their work. Just as any citizen of this state must pay his or her legal debts, the State of California should pay its legal debts. No citizen to whom the state owes money should have to go to the Legislature time and time again to obtain some action and, when rebuffed, be forced to turn to the courts for relief.
If the State of California expects its citizens to pay their obligations to the state in taxes, which form the basis for the monies the Legislature appropriates, can it blithely ignore its own obligations? I think not.
I.
The separation of powers doctrine is embodied in the California Constitution in article III, section 3. “The powers of state government are *561legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”
The founders of our republic divided the tasks of governing into three parts to avoid “[t]he accumulation of all powers legislative, executive and judiciary in the same hands .. .. ” (Madison, The Federalist No. 47 (1788).) Such an accumulation of power without divided responsibility was denominated by James Madison as “the very definition of tyranny.” {Ibid.) Justice Jackson saw that the separation of powers doctrine was intended to achieve unity with diversity. “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” (Youngstown Co. v. Sawyer (1952) 343 U.S. 579, 635 [96 L.Ed. 1153, 1199, 72 S.Ct. 863, 26 A.L.R.2d 1378] (conc. opn. of Jackson, J.).)
The “separateness and interdependence” of the branches lead to inevitable tensions which must be resolved within the Constitution’s framework. (See, e.g., McGowan, Congress, Court and Control of Delegated Power (1977) 77 Colum.L.Rev. 1119, 1119-1120; Levi, Some Aspects of Separation of Powers (1976) 76 Colum.L.Rev. 371, 382.) The complexity of modern government has made it all the more difficult to draw clear lines between executive, legislative, and judicial tasks. Yet, the Constitution requires that this court prevent one branch from exercising another branch’s powers.
It cannot be denied that the judiciary has inherent equitable power to award attorney fees even in the absence of statutory authority. (E.g., Sprague v. Ticonic Bank (1939) 307 U.S. 161, 166 [83 L.Ed. 1184, 1186-1187, 59 S.Ct. 777]; Newman v. Piggie Park Enterprises (1968) 390 U.S. 400, 402, fn. 4 [19 L.Ed.2d 1263, 1266, 88 S.Ct. 964]; Mills v. Electric Auto-Lite (1970) 396 U.S. 375, 389-397 [24 L.Ed.2d 593, 604-609, 90 S.Ct. 616]; Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240, 257-259 [44 L.Ed.2d 141, 153-154, 95 S.Ct. 1612]; Hutto v. Finney (1978) 437 U.S. 678, 689 [57 L.Ed.2d 522, 533, 98 S.Ct. 2565]. See also Nussbaum, Attorney's Fees in Public Interest Litigation (1973) 48 N.Y.U.L.Rev. 301, 323-331, 332.)
This common law rule was applied in earlier litigation by the trial court and affirmed on appeal in Mandel v. Hodges (1976) 54 Cal. *562App.3d 596, 619-624 [127 Cal.Rptr. 244, 90 A.L.R.3d 728] (hg. den., Mar. 18, 1976). All issues relating to the power of the judiciary in awarding these fees were argued and conclusively decided. Even the Attorney General had to concede in this proceeding the validity of that trial court judgment. Ironically, the Legislature also recognized the propriety of similar fee awards when it passed the public interest attorney fees statute in 1977. (See Code Civ. Proc., § 1021.5.)
The decision to award fees in a specific case is a uniquely judicial determination which involves conducting a hearing, taking evidence, weighing the equities, and applying the relevant legal principles to the facts presented. It is evident that the trial court did not intrude on the Legislature’s prerogatives when it awarded fees in the underlying action.
The question remains whether the Legislature may constitutionally shield the state from liability by refusing to appropriate funds to pay for a valid legal judgment without any legitimate reason. The Attorney General is in the unenviable position of attempting to defend this legislative action on the sole basis that the power of the purse is virtually absolute. He concedes that the Legislature may not invidiously discriminate in funding. Otherwise, he claims that the appropriation power gives unlimited discretion to the legislative branch. A close examination of this assertion establishes its fallacy.
The Legislature’s power of the purse is extensive but not without limits. For example, the appropriation power does not encompass the right to grant public benefits conditioned on the waiver of a recipient’s constitutional rights. (E.g., Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252 [172 Cal.Rptr. 866, 625 P.2d 779]; Parrish v. Civil Service Commission (1967) 66 Cal.2d 260 [57 Cal.Rptr. 623, 425 P.2d 223].) Similarly, the appropriation power does not give the Legislature the right to refuse to fund a coequal branch of government. “A court set up by the Constitution has within it the power of self-preservation, indeed, the power to remove all obstructions to its successful and convenient operation. This arises from the fact that it is part of and belongs to one of the three independent departments set up by the Constitution ... [t]here is this qualification thereof, ... the legislature may at all times aid the courts and may even regulate their operation so long as their efficiency is not thereby impaired.” (Millholen v. Riley (1930) 211 Cal. 29, 33-34 [293 P. 69]. But see Myers v. English (1858) 9 Cal. 341, 349.)
*563Just as the power of appropriation does not provide the Legislature with tools for exacting a waiver of constitutional rights or denying funds to a coequal branch of government, that power cannot be said to support any other violation of a constitutional mandate. The power of the purse may be comprehensive but it is certainly not talismanic. It cannot transform unconstitutional actions into lawful ones.
Initially, the question that must be answered is whether the Legislature has the constitutional power under the separation of powers doctrine to refuse to appropriate funds to pay for a legitimate legal judgment without any valid reason. This court has articulated a standard for assessing whether the Legislature has stepped over the line and exercised the power of a coequal branch. “The sum total of this matter is that the legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions.” (Brydonjack v. State Bar (1929) 208 Cal. 439, 444 [281 P. 1018, 66 A.L.R. 1507].)
There is no doubt that under our system of government the adjudicative function belongs with the judiciary.2 The Legislature cannot substitute its judgment for that of a court where an adjudication is involved. (See United States v. Klein (1872) 80 U.S. (13 Wall.) 128, 145-148 [20 L.Ed. 519, 525-526]; Denny v. Mattoon (1861) 84 Mass. (2 Allen) 361, 377-380 [79 Am.Dec. 784]; Chadha v. Immigration and Naturalization Service (9th Cir. 1980) 634 F.2d 408, 420-436.) Such legislative adjudication violates the very essence of the principle of separation of powers.
*564When the Legislature refused to pay this valid legal judgment, it necessarily substituted its determination as to the legality of the judgment for that of the judiciary, implying that it would have adjudicated the case differently. In doing so, the Legislature was exercising judicial power. As this court recognized in 1855, “[t]he Legislature cannot exercise judicial functions, and therefore cannot except one case, or one party, from the operation of .a general rule of law, either as to right or remedy.” (Guy v. Hermance (1855) 5 Cal. 73, 74.)
It is clear that the Legislature may change the common law prospectively, but it may not reverse a judgment in a case already decided. (Pryor v. Downey (1875) 50 Cal. 388, 408; Hodges v. Snyder (1923) 261 U.S. 600, 603 [67 L.Ed. 819, 821-822, 43 S.Ct. 435]; Chadha v. Immigration and Naturalization Service, supra, 634 F.2d at p. 431.) In addition, the Legislature may regulate the procedure to be used and the notice required for payment of claims against the state. It may choose the method of payment and the proof required. These functions are legislative since they apply to all claims against the state nondiscriminatorily.
/ Similarly, if the state faced a severe fiscal crisis, the Legislature might enact nondiscriminatory limits upon its liability to judgment creditors. This would not offend the separation of powers clause because the Legislature would not be selectively choosing among the valid judgments, and, therefore, would not be reweighing the judicial decision on the merits. (See maj. opn., ante, at pp. 550-552.)
The real problem here involves the proper remedy for the holders of this valid legal judgment for attorney fees. The dissent is wrong when it concludes that there is no remedy available to these judgment creditors. Chief Justice John Marshall set down the rule of law in 1803 in Marbury v. Madison. “In the 3d vol. of his Commentaries (p. 23), Blackstone states ... ‘In all other cases, ... it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded.’ And afterwards (p. 109, of the same vol.), he says, ‘. . . for it is a settled and invariable principle . .. that every right, when withheld, must have a remedy, and every injury its proper redress.’ [II] The government of the United States has been emphatically termed a government of laws, and not of men [or women]. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” (Marbury v. Madison (1803) 5 U.S. (1 Cranch) 87, 103 [2 L.Ed. 60, 69].)
*565In the face of the Legislature’s unjustified refusal to pay this valid judgment, the state should be treated like any other intransigent civil litigant.
The power to enforce a judgment by execution and other means is an essentially judicial power. “An execution is a judicial writ issuing from the court where the judgment is rendered, directed to an officer thereof, and running against the body or goods of a party, by which the judgment of the court is enforced. It has also been defined as the end of the law; . . . the ... fruit of the law; the act of carrying into effect the judgment or decree of a court; . .. the embodied power of the court, in the shape of a command to a ministerial officer, respecting the rights of the parties to the judgment, and imposing on the officer certain duties and liabilities prescribed by law.” (33 C.J.S. (1942) Executions, § 1, p. 133, fns. omitted.) The rules regarding execution of judgments are codified in the Code of Civil Procedure sections 681-724e. The writ of execution is a purely judicial tool. (See Code Civ. Proc., § 682.)3
The old common law rule exempting state property from execution of judgments was set down in Westinghouse Electric Co. v. Chambers (1915) 169 Cal. 131, 135 [145 P. 1025]: “a judgment against the state . . . merely liquidates and establishes the claim against the state, and . . . such judgment cannot be collected by execution against the state or its property .. .; it remains for the state, after such judgment, to provide for the payment thereof in such manner as it sees fit, or to refuse to do so at its pleasure . . . . ” This rule was later codified in Government Code section 965.5, subdivision (b).4
This exception was based on the concept of governmental immunity which exempted the state from liability and suit by its citizens. However, the doctrine of sovereign immunity was substantially repudiated by this court in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 *566[11 Cal.Rptr. 89, 359 P.2d 457] as “mistaken and unjust.” (Id., at p. 213.) As Chief Justice Traynor (then Associate Justice) ably argued, “[t]he rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia.” (Id., at p. 216, citations omitted.)
Chief Justice Traynor explained the inherent power of the court to abrogate the doctrine of state immunity. “The doctrine of governmental immunity was originally court made .... [11] The state has also enacted various statutes waiving substantive immunity in certain areas. . . [If] ... Defendant would have us say that because the Legislature has removed governmental immunity in these areas [the court is] powerless to remove it in others. We read the statutes as meaning only what they say: that in the areas indicated there shall be no governmental immunity. They leave to the court whether it should adhere to its own rule of immunity in other areas.” (Id., at pp. 218-219, italics added.)5 Just as the Muskopf court had the power to abrogate the court-made doctrine of governmental immunity for torts, this court has the constitutional authority to overrule the court-made execution exemption articulated in Westinghouse Electric Co. v. Chambers, supra, 169 Cal. 131, and to invalidate on constitutional grounds its subsequent codification. Insofar as it permits legislative readjudication of final judgments, the execution exemption violates the separation of powers doctrine. The right to sue becomes worthless if, once liability of the state is legally established, there is no remedy. The execution exemption is as outmoded as the tort immunity abolished in Muskopf.
As this court has unanimously underscored, “in a society such as ours, which places such great value on the dignity of the individual and views the government as an instrument to secure individual rights, the doctrine of sovereign immunity must be deemed suspect.” (Hall v. University of Nevada (1972) 8 Cal.3d 522, 526 [105 Cal.Rptr. 355, 503 P.2d 1363, 81 A.L.R.3d 1234], citations omitted.)
Muskopf and Hall judicially abrogated governmental tort immunity. The government has never been immune from suits for unconstitutional *567acts since express prohibitions within the Constitution act as fundamental limits on state power. (Mikva & Hertz, Impoundment of Funds—the Courts, the Congress and the President: A Constitutional Triangle (1974) 69 Nw.U.L.Rev. 335, 356; Abernathy, Sovereign Immunity In A Constitutional Government: The Federal Employment Discrimination Cases (1975) 10 Harv.Civ. Rights-Civ.Lib.L.Rev. 322, 331 [hereinafter . Abernathy].) Such prohibitions have been held to be self-executing and to contain within them consent to be sued. (See Rose v. State of California (1942) 19 Cal.2d 713, 720 [123 P.2d 505].)
The plaintiffs in this case originally sued under the freedom of religion clauses of the federal and state Constitutions. (Mandel v. Hodges, supra, 54 Cal.App.3d at pp. 610-619.) The state was not entitled to immunity from suit under those provisions. If immunity from suit for the substantive constitutional violations did not exist, why should the remedy for those violations be barred by another tenet of the state immunity principle? Once it has been established that the state does not have immunity from legal suit and the resulting liability, on what conceivable basis may the state be completely exempted from fulfilling its legal obligation to pay that judgment?
The execution provisions of the Code of Civil Procedure protect judgment creditors against unwilling but solvent debtors. The state in this case is just such a debtor.6 The Legislature cannot build a barrier around the state’s assets by requiring that judgment creditors undergo a second trial on the merits before the Legislature. Further, there is no legislative power to annul a final legal judgment.
The only rational reason advanced in recent years for the state exemption to the general rules of liability is the possible concern that if this power were not present, the state would lose control over state property. (Block, Suits Against Governmental Officers And The Sovereign Immunity Doctrine (1946) 59 Harv.L.Rev. 1060, 1061-1062 [hereinafter Block], See Comment, Sovereign Immunity: A Modern *568Rationale In Light of the 1976 Amendments to the Administrative Procedure Act, 1981 Duke L.J. 116, 119-120.) However, this concern was addressed by the Legislature when it enacted statutes which require claimants to follow certain procedures in order to obtain payment of their judgments. (Gov. Code, §§ 965-965.9.) The entry of judgment as well as the procedures for payment give the state ample notice for fiscal planning purposes. A rule which permitted execution against state monies would not interfere with the state’s control over its other property.7
Moreover, “[i]t does not seem logical to allow a government to claim that its functions are being unduly interfered with when the exercise of the function complained of is ... unconstitutional ... . ” (Block, supra, 59 Harv.L.Rev. at p. 1062. See also Abernathy, supra, 10 Harv.Civ. Rights-Civ.Lib.L.Rev. at p. 333.) Therefore, the state should not be heard to complain of an interference with its functions when the cause of the interference is the unconstitutional legislative relitigation of a final court judgment.
The execution exemption permits the Legislature to unconstitutionally veto or annul a court’s final judgment against the state. In Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344 [139 P.2d 908], Chief Justice Gibson articulated the legal problems with such a law. “Ordinarily the judgment of a court may not be modified or altered by legislative action [citations] because a judgment is a form of contract protected by the contract and due process clauses of the state and federal Constitutions. [Citations.] A further reason has been advanced to the effect that such legislation is an infringement upon the functions of the judicial branch of the government. [Citations.]” (Id., at p. 363.)
The Massachusetts Supreme Judicial Court recognized that the same reasoning applies to a court’s power to execute a judgment. “It is the exclusive province of courts of justice to apply established principles to cases within their jurisdiction, and to enforce their decisions by rendering judgments and executing them by suitable process. The legislature [has] no power to interfere with this jurisdiction in such manner as to change the decision of cases pending before courts, or to impair or set aside their judgments, or take cases out of the settled course of judicial proceeding.” (Denny v. Mattoon, supra, 84 Mass. (2 Allen) at p. 378, italics added.)
*569The separation of powers principle has often been held to prohibit the Legislature from subsequently invalidating a final court judgment. (Pryor v. Downey, supra, 50 Cal. 388, 398; Lincoln v. Alexander (1877) 52 Cal. 482, 487; United States v. Klein, supra, 80 U.S. (13 Wall.) 128; Hodges v. Snyder, supra, 261 U.S. 600.) The principle of finality of court judgments could not exist without this legal precedent. (See United States v. Klein, supra, 80 U.S. (13 Wall.) at p. 144 [20 L.Ed. at pp. 524-525].) Further, this court has unanimously recognized that requirements of legislative or executive consent to judicial actions also violate the separation of powers doctrine. (People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993]; Esteybar v. Municipal Court (1971) 5 Cal.3d 119 [95 Cal.Rptr. 524, 485 P.2d 1140]; People v. Navarro (1972) 7 Cal.3d 248 [102 Cal.Rptr. 137, 497 P.2d 481]. See also People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59 [113 Cal.Rptr. 21, 520 P.2d 405]; Scott v. Municipal Court (1974) 11 Cal.3d 799 [114 Cal.Rptr. 600, 523 P.2d 640].)
The rule exempting state property from execution where the Legislature relitigates a final judgment essentially grants the legislative branch a right of review and veto over final judgments against the state. This veto power impairs the judicial function in the extreme by invalidating judicial decisions on a case-by-case basis. As a result, a court’s decisions are rendered advisory at best. “The power to act under our system of government means the power of an independent court to exercise its judicial discretion, not to servilely wait on the pleasure of [another branch].” (People v. Sidener (1962) 58 Cal.2d 645, 654 [25 Cal.Rptr. 697, 375 P.2d 641] (dis. opn. of Schauer, J.), overruled in People v. Tenorio, supra, 3 Cal.3d 89, 95.) Therefore, insofar as the execution exemption for state property gives the Legislature a right to review and annul final judicial judgments, without legal justification, it violates the separation of powers clause.
The exemption of state property from the rules of execution creates a number of anomalies worthy of note. First and most obvious is the case of the indebted taxpayer. The state is given the power under our system of government to attach and execute against taxpayers’ property when a debt is owed the state. (See Rev. & Tax. Code, § 18865.) However, this same citizen with a judgment against the state is rendered remediless by an arbitrary refusal by the Legislature to offset the judgment or appropriate funds to pay it. (See Gov. Code, § 965.5.) Thus, the state, which promulgates the laws, is not obliged to follow the rules it makes for its own citizens.
*570In the area of governmental torts, the Legislature itself has proclaimed that the government may be held liable for its own torts. (Gov. Code, § 810 et seq.) Yet, the execution exemption permits the Legislature to thwart the outcome of the very suits the government has agreed are valid and which it has invited to be filed. Surely, the Legislature should not be allowed to abrogate sovereign immunity on the one hand and to refuse, without reason, to pay any or all of the resulting judgments on the other.
The present case illustrates the way in which the execution exemption may force the citizens of this state into the federal courts to remedy unconstitutional acts of state officials. If Ms. Mandel had filed a similar lawsuit in federal court claiming a violation of her civil rights (see 42 U.S.C. § 1983)8 and won the precise judgment, that judgment could have been executed against state property. Under the rule of La Raza Unida v. Volpe (N.D.Cal. 1972) 57 F.R.D. 94, 98, attorney fees could have been awarded even before the enactment of the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. § 1988). These fees are not barred by state sovereign immunity statutes. (Hutto v. Finney, supra, 437 U.S. 678, 689-693 [57 L.Ed.2d 522, 533-536].) Further, a district court may order the issuance of a warrant and payment from the state treasury despite a state statute barring execution against state property and despite the Legislature’s refusal to appropriate funds. (Gates v. Collier (5th Cir. 1980) 616 F.2d 1268.)
A district court’s issuance of a writ directing the United States Marshal to seize state property to satisfy a valid legal judgment has been upheld on appeal notwithstanding a state constitutional rulfe exempting state property from execution. (Gary W. v. State of La. (5 th Cir. 1980) 622 F.2d 804, cert. den., — U.S. — [68 L.Ed.2d 193, 101 S.Ct. 1695].) Thus, if Ms. Mandel had obtained the same judgment in a federal rather than a state court, she would not face her present predicament. Instead of encouraging California residents to use the state court system to remedy unconstitutional actions by state officials, the execution exemption creates a disparity which makes the state courts ineffectual forums for such suits.9
*571When the Legislature attempts to exercise judicial authority by refusing to pay a valid legal judgment, without justification, the courts of this state have no alternative. They must enforce the judgment by issuing a writ of execution against the assets of the state.10 (Cf. F. H. A. v. Burr, supra, 309 U.S. at p. 250 [84 L.Ed. at p. 731].) However, this power is not unlimited and should be exercised only when all other means of obtaining the state’s voluntary compliance fail.
The issuance of a writ of execution is an inherent judicial power. “The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this Court ...." (Gordon v. United States (1865) 69 U.S. (2 Wall.) 561 [17 L.Ed. 921] (appen. by Taney, C. J., at 117 U.S. 697, 702 [76 L.Ed. 1347, 1350]). See also F. H. A. v. Burr, supra, 309 U.S. at p. 250 [84 L.Ed. at p. 731].)
II.
The Legislature has never appropriated funds to pay for the attorney fees requested in this case. The Legislature has twice specifically refused to appropriate funds for this purpose despite requests by the Governor’s office and the plaintiff. As the dissent points out, it is impermissible for courts to intrude on the legislative power of the purse by finding an implied grant of funds despite an unmistakable intent to do just the opposite. Therefore, unlike the majority, I would not affirm the trial court’s order.
*572This does not end the inquiry, however. The Legislature should not be allowed to relitigate valid judgments decided by the trial courts of this state. Failure by this court to deal with this unconstitutional usurpation of judicial authority would be a derogation of duty. Unfortunately, the logic of the dissent leads unswervingly to the acceptance of judicial impotence to enforce concededly valid judgments. Moreover, it would sound the death knell for the time-honored rule that no legal right shall be without a remedy.
Both majority and dissent invoke the separation of powers doctrine. Neither concedes that there are two separate problems with that doctrine. In reality, the dissent is correct when it opposes judicial appropriation and the majority is equally correct when it protests legislative readjudication of a final court judgment. Unlike my brethren, I would acknowledge the constitutional clash between the powers of the judicial and legislative branches of our government and attempt to forthrightly “set the stakes along the common boundary between these zones of power.” (Brydonjack v. State Bar, supra, 208 Cal. at p. 444.)
A democratic government cannot exist without comity. Each branch of government must respect the legal actions and inherent powers of the other branches, if the democratic process is to work. In the name of the doctrine of separation of powers, this court should not protect the inherent authority of the judiciary without giving due regard to the inherent authority of a coequal branch of government. The court should not attempt to remedy the Legislature’s violation of separation of powers by usurping legislative power and virtually appropriating the needed funds itself. Such an action equally violates the spirit of the separation of powers doctrine.
The Legislature has steadfastly refused to recognize the legal obligation the state owes to these attorneys for their work. Just as any citizen of the state must pay his or her legal debts, the State of California should also pay its legal debts. No one should have to repeatedly petition the Legislature to obtain what is due him or her. No citizens should be forced to repeatedly turn to the courts for relief. If the State of California expects its citizens to pay their obligations to the state in the form of taxes (the very source of legislative appropriations), it cannot legally or constitutionally ignore its own fiscal obligations.
The plaintiff should have a valid legal means by which to obtain state compliance with her judgment. The trial court should follow the tra*573ditional method courts use to execute valid legal judgments against private parties. In this way, the courts would use inherent judicial power to remedy an unconstitutional act instead of usurping the legislative power of the purse by deeming that an appropriation was made which, in fact, was refused.
The traditional rule that the state’s assets are always immune from attachment and execution is illogical and anachronistic. More importantly, it is unconstitutional insofar as it permits the Legislature to step into the shoes of a judge to decide if and to what extent the state is obligated to pay a given judgment. When the Legislature relitigates the issues underlying a court’s judgment, without any reason, it substitutes a legislative adjudication for a valid judicial decision. This is not permissible under the Constitution.
A confrontation between the branches of government would be averted if this court (1) acknowledged that the judicially created common law rule exempting the state from its own execution laws is anachronistic; and (2) recognized that it is a violation of the separation of powers clause for the Legislature effectively to deny a remedy to a citizen with a valid legal judgment against the state. The right to sue is meaningless without a remedy. If the remedy is dependent upon a specific appropriation on a case-by-case basis, it is a remedy dependent on whim rather than law.
Under the resolution suggested herein, the Legislature’s constitutional authority to appropriate funds would remain 'intact, and the courts’ power to adjudicate and enforce legal claims would be upheld.
This procedure would remedy the legislative usurpation of judicial authority without the courts exercising any powers that are not essentially judicial. The trial courts could enforce their decisions when the state, through an act of the Legislature, refused without reason to pay a valid court judgment. Finally, the power of execution would be used only after the Legislature had been given every opportunity to comply with the court’s order to pay the state’s valid legal debts.
Justice Richardson does seem to equivocate when he admits that the courts may have the power to remedy a situation in which the Legislature acted with “an improper motive” or “discriminatory intent.” (Ante, at p. 558 (dis. opn. of Richardson, J.). Further, his citation with approval of United States v. Lovett (1946) 328 U.S. 303 [90 L.Ed. 1252, 66 S.Ct. 1073] and State Board of Education v. Levit (1959) 52 Cal.2d 441 [343 P.2d 8] indicates he recognizes some exceptions to his otherwise inflexible rule.
The adjudicatory power has been given to the courts in our tripartite system. My dissenting opinion in People v. Tanner discusses the contours of that power in a criminal law setting. (See People v. Tanner (1979) 24 Cal.3d 514, 569-578 [156 Cal.Rptr. 450, 596 P.2d 328] (conc. and dis. opn. of Bird, C. J.).) There, although a judge did not have the power to place a defendant on probation in defiance of a legislative prohibition, the Legislature could not constitutionally prohibit a court from striking a penalty enhancement factor. To do so would have violated the separation of powers clause of the Constitution. Once the court exercised its adjudicatory power and struck the enhancement factor, the defendant could be placed on probation if the resulting “unenhanced” offense' was one for which the Legislature had permitted probation. Thus, although the Legislature had forbidden probation for robbery-with-a-use clause, it had not forbidden probation for straight robbery.
Therefore, once the judge struck the use clause—which he was constitutionally entitled to do since it was an adjudicatory function—he could then treat the defendant as a person convicted of a straight robbery, a crime for which the Legislature permitted probation.
A judgment is enforceable by writ of execution if the judgment is: (I) final and unconditional: (2) sufficiently certain to constitute an enforceable personal money judgment; and (3) a valid and continuing obligation. (5 Wilkin, Cal. Procedure (1971) Enforcement of Judgment, § 5, p. 3391.) A writ of execution may be issued to “[t]he party in whose favor judgment is given" any time within 10 years of the entry of judgment. (Code Civ. Proc., § 681.) This writ, issued by a judge, directs a sherilT or other ollicer to satisfy the judgment out of the personal or real property of the debtor. (Code Civ. Proc., § 682.)
Section 965.5, subdivision (b) stales: "A judgment for the payment of money against the slate or a state agency is not enforceable under Title 9 (commencing with Section 681) of Part 2 of the Code of Civil Procedure [Execution of Judgments] but is enforceable under this chapter."
The court also disposed of the defendant’s claim that the immunity doctrine was constitutionally mandated. The provision now found in article III, section 5 (formerly art. XX, § 6) of the California Constitution states: “Suits may be brought against the state in such manner and in such courts as shall be directed by law.” This section was deemed a waiver of immunity rather than an assertion of it. (Muskopf, supra, 55 Cal.2d at p. 217.)
It has been noted that the fact that a given judgment may be impossible to execute is one of the “notorious incidents” of litigation. (F. H. A. v. Burr (1940) 309 U.S. 242, 251 [84 L.Ed. 724, 732, 60 S.Ct. 488].) This comment recognizes that not all debtors have assets which may be reached. However, the state is not insolvent or judgment-proof. The state, as enforcer of the law, should set an example for its citizens because “[i]t is as much the duty of the government as of individuals to fulfil its obligations." (United States v. Klein, supra, 80 U.S. (13 Wall.) at p. 144 [20 L.Ed. at p. 525].) The state should be held to at least the same standards as the citizenry.
And see post, at page 571, footnote 10.
Federal courts do have stricter standing requirements for taxpayer suits than do the state courts. Thus, this substantive claim may not have alleged sufficient injury to warrant federal jurisdiction. (See Flast v. Cohen (1968) 392 U.S. 83, 102-103 [20 L.Ed.2d 947, 963, 88 S.Ct. 1942].) Nevertheless, the hypothetical is still valid insofar as constitutional claims against the state do meet federal jurisdictional standards.
Professor Wolcher has suggested that litigants seeking to vindicate federal civil rights should increasingly file suit in state courts. (Wolcher, Sovereign Immunity and *571the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations (1981) 69 Cal.L.Rev. 189, 314-316.) In the event that such suits are filed in state courts, fee awards granted under the Civil Rights Attorney’s Fees Awards Act are likely to increase the number of cases to which our Legislature must respond. Should the fact that the judgment under federal law is granted by a state court mean that the judgment cannot be executed? That is the absurd result which the execution exemption mandates.
Such a writ should command execution against state monies rather than state property, whenever possible, in order to minimize any potential interference with governmental functions. (See Code Civ. Proc., § 690.22, exempting from execution, inter alia, certain state property held for public use.) State monies are on deposit in commercial banking establishments. (See, e.g., Gov. Code, §§ 12320, 12325.)