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sacbee.com
The State Worker: Schwarzenegger, union argue furlough case next week

jortiz@sacbee.com

Published Thursday, Sep. 02, 2010

If the bitter furlough battle between Gov. Arnold Schwarzenegger and state employee unions happened to be a heavyweight fight, Wednesday would be the final round.

After nearly two years, 40 lawsuits and more than $1.2 million in state legal bills, the California Supreme Court will hear debate next week over whether the governor has illegally forced state workers to take unpaid days off from work. Here’s a brief guide to the 9 a.m. hearing and beyond:

The stakes. Enormous, starting with the bank accounts of more than 200,000 state workers who have lost nearly 50 workdays and close to a combined $3 billion or so in pay since February 2009.

Then toss in questions about executive authority, the sanctity of labor contracts (do furloughs have to be negotiated or can they be imposed?) and our celebrity governor, and you have a full-blown, precedent-setting case.

“People will refer to this decision for years to come,” UC Davis law professor Vikram Amar said.

The hearing. At Wednesday’s hearing, each side will have 45 minutes to present its case, three times the usual period for oral arguments.

The court didn’t grant the added time because it needs convincing. In fact, the justices have probably already drafted a confidential tentative decision after weighing the reams of documents already filed.

“The justices use oral arguments to test holes in their theory,” said Sacramento labor attorney Tim Yeung. “They rarely change their minds.”

The ruling. The court has 90 days after hearing arguments to publish its decision. Both Yeung and Amar think that could come much sooner, especially if the court doesn’t need to tweak its tentative decision much before making it final.

The ruling will probably settle those dozens of furlough cases in lower courts.

With so much at stake, Yeung said, “if there’s ever been a case for the court to be quick, this is it.”

The outcome. If the union wins, those 200,000 state workers will have to be made whole to the tune of back pay with interest. The governor will be remembered for losing a gambit that paid employees for work they never performed.

Or the courts could agree with Schwarzenegger and hand him a legacy as the governor who tipped the balance of state labor power toward the executive.

More likely, the experts said, the high court will render a split decision. It could rule that furloughs are legal, but only within certain parameters or under certain fiscal conditions, for example.

“That would be the politically savvy and legally sound course to chart,” Amar said.

The future. Inside every court decision lies the seeds of another fight. The court might settle furloughs for now, but who knows what legal loopholes it might leave open?

And someday, someone might pick up the gloves and touch ’em up again.

© Copyright The Sacramento Bee. All rights reserved.

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