While oral arguments for both sides lacked mandate expertise, the Court showed its hand by asking pointed questions as it related to the Legislature's direction that the Commission rehear these test claims in light of any new federal or state laws.

 

Justice Robie repeatedly asked the attorney representing the state's interest in this matter on whether the Legislature's act creates uncertainty in decisions.  Several times the issue of the "finality of decisions" was raised and whether the Legislature's ability to order reconsideration of prior final decisions was merely an end-around to providing a subvention of funds as directed by article XIII B, section 6.  Moreover, Justice Robie disagreed with the contention argued by the deputy attorney general that reconsiderations ordered by the Legislature are necessary when there has been a "change in the landscape" that may require reimbursement to cease for a particular program.

 

In those cases where a "change in the landscape" occurred, Justice Robie asked why couldn't a test claim or other claim be filed to then potentially eliminate the mandate.  The state's attorney could not respond.  In addition, the Court took issue with the state's contention that the Commission could have not acted on AB 138, but rather simply ignore the Legislature's directives to rehear these mandates.  As properly stated by the Court, AB 138 included codified language that the Commission could not avoid and was therefore required to act in response to AB 138.

 

At one point during CSBA's argument, the Court provided a leading statement begging for counsel to essentially write the decision for the Court.  This chance was missed.  In this case, the fact that the Legislature directed the Commission to rehear and set-aside these mandates was a violation of the separation of powers doctrine (as held by the Superior Court).  Moreover, the fact that AB 138 provided for a change in law meant to circumvent the subvention requirement of article XIII B, section 6 meant the Legislature not only directed a particular decision it provided the basis upon which that decision could be made.  The expansion of the ballot measure exemption to a finding of a mandate is in clear violation of article XIII B, section 6 as any activities required by the Legislature that go beyond those outlined in a ballot measure trigger the subvention requirement.  To hold otherwise would allow the Legislature to "tinker" with the Government Code to avoid providing a subvention of funds in all manner of circumstances.

 

Overall, our take on the hearing is positive even in light of the less than stellar advocacy for both sides.  Mandates law, the history of these programs, and the application of the more esoteric aspects of mandates was just out of reach for both attorneys on Monday.  In the end, it appears the Appellate Court found nothing compelling in the State's arguments to overturn the lower court's rulings.  While there may be some tweaks to the SARC portion of the decision, it seemed like both MRP and OMA would be upheld.  The CSBA attorney had the opportunity to slam the state's case shut, but failed to provide the statement the Court seemed to want.  Hopefully, the written briefs were much more convincing so as to ensure these much-needed and clearly mandated programs return.  Of course, nothing is certain in the law.  However, if we were wagering, our money is on all three programs returning in late 2009 or early 2010.