Superior Court v. County of Mendocino , 13 Cal. 4th 45 ( 1996 )

LUCAS, C. J.

I concur. As the majority explains, the Mendocino County Superior Court’s constitutional challenge to Government Code section 68108 is a facial one. We are not deciding the more difficult question whether the statute, as applied in this case, materially impairs judicial functions of the superior court.

I am somewhat troubled by the majority’s failure to address the question whether the Legislature had the power to delegate to the various counties authority to declare unpaid judicial furlough days. The majority states that because the contention was not raised in the Court of Appeal, it is not properly before us. (Maj. opn., ante, at p. 66, fn. 12.) But the issue appears on the face of the statute, was at least mentioned by the Court of Appeal in its opinion, and certainly we could have requested further briefing on it.

As the Court of Appeal observes in describing the statutory scheme before us, “Thus, however, anomalous it may seem, the Legislature has now established a system under which the judges of a court may choose to conduct night court on New Year’s Eve, but are absolutely precluded from conducting court on days designated by county boards of supervisors as ‘unpaid furlough days.’ ” (Italics added.)

Thus, on the face of the statutory scheme, County “A” could select no unpaid furlough days while County “B” presumably could select 200 of them. Given the potential for disruption, unfairness, and confusion that could arise if each individual county were at liberty to choose the date and number of unpaid furlough days for that particular county, the Legislature’s delegation to the counties may well be subject to serious challenge.