Cal. Bldg. Industry Assn. v. State Water Resources

Filed 5/11/15 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CALIFORNIA BUILDING INDUSTRY
ASSOCIATION, A137680
Plaintiff and Appellant, (San Francisco City and County
v. Super. Ct. No. CGC-11-516510)
STATE WATER RESOURCES CONTROL
BOARD, ORDER MODIFYING OPINION
AND DENYING REHEARING
Defendant and Respondent.
NO CHANGE IN JUDGMENT
BY THE COURT:
It is ordered that the published opinion, filed on April 20, 2015, be modified as
follows:
1. Page 2, bottom paragraph, fourth line: Porter-Cologne Water Quality Act
should be Porter-Cologne Water Quality Control Act.
2. Page 14, second paragraph, first and fourth lines: section 13620 should be
section 13260.
3. Page 15, last paragraph, fourth line: section 3260 should be section 13260.
4. Page 16, first full paragraph, fourth line is deleted and replaced with:
Section 13260 provides that some stormwater dischargers, those subject to a general
industrial or construction stormwater permit under the national pollutant discharge
elimination system (NPDES), must be separately accounted for in the Fund and requires
some of those funds to be spent within the same region where those dischargers are
located “to carry out stormwater programs in the region.” (§ 13260, subds. (d)(2)(B)(i),
(d)(2)(B)(ii).)
5. Page 16, first full paragraph, sixth line is deleted and replaced with: This
provision requires special treatment of fees and funds for some storm water dischargers
1
but there is no suggestion that the Board must balance the fee for the storm water
program with the revenue from that program.8 (See § 13260, subds. (d)(2)(B)(i)-(iii).)
6. Page 16, delete the last sentence in footnote 8: The complaint does not
allege that CBIA or its members are participants in NPDES.
7. Page 20, first sentence of footnote 10: “retrospective” should be
“retroactive.”
8. Water discharger or water discharge should be replaced with waste
discharger or waste discharge, respectively, in the following instances:
a. Page 2, subheading before bottom paragraph: “The Permit Fees for
Water Dischargers” should be “The Permit Fees for Waste
Dischargers.”
b. Page 14, second paragraph, fifth line: “water dischargers” should be
“waste dischargers.”
c. Page 14, bottom paragraph, first line: “report of water discharge”
should be “report of waste discharge.”
d. Page 16, first full paragraph, first and second lines: “discharge water
program” should be “waste discharge program.”
e. Page 18, second full paragraph, third line: “water discharge”
should be “waste discharge.”
f. Page 18, second full paragraph, fifth line: “water dischargers”
should be “waste dischargers.”
g. Page 20, first paragraph, fifth line: “water discharge” should be
“waste discharge.”
h. Page 20, footnote 11, third line: “water discharge” should be “waste
discharge.”
9. Dissenting opinion at page 2, footnote 2: “the Board’s defective motion for
reconsideration” should be “the Association’s defective motion for reconsideration”
2
The petition for rehearing, filed on May 5, 2015, is denied. Richman, J.
would grant the petition for rehearing.
There is no change in judgment.
Dated: _________________________
Kline, P.J.
3
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Curtis E. A. Karnow
Attorneys for Plaintiff and Appellant: Rutan & Tucker, LLP
David P. Lanferman
Attorneys for Defendant and Respondent: Kamala D. Harris
Attorney General of California
Paul D. Gifford
Robert W. Byrne
Senior Assistant Attorneys General
Gavin G. McGabe
Molly K. Mosley
Supervising Deputy Attorneys General
Robert E. Asperger
Tiffany Yee
Deputy Attorneys General
4
Filed 4/20/15 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CALIFORNIA BUILDING INDUSTRY
ASSOCIATION,
A137680
Plaintiff and Appellant,
v.
STATE WATER RESOURCES CONTROL (San Francisco City and County
BOARD, Super. Ct. No. CGC-11-516510)
Defendant and Respondent.
When parties discharge waste that could affect the quality of California’s water
they must pay an annual permit fee set by the State Water Resources Control Board (the
Board). (See Wat. Code, § 13260.)1 In 2011, two of the five seats of the Board were
vacant; two of the remaining three Board members voted to approve an increase of fees
for the 2011-2012 fiscal year. The California Building Industry Association (CBIA)
asserts that section 183 required the fees to be approved by a majority of the five-person
Board. CBIA also contends that the Board violated section 13260 and imposed an illegal
tax because the fee imposed on the dischargers in the storm water program—one of eight
program areas in the waste discharge permit program—exceeded the cost of regulating
this particular program.
The Board responds that a majority of the Board’s quorum voted to approve the
fee in compliance with section 181, the applicable statute. The charge was a valid
regulatory fee under section 13260, according to the Board, because the total fees
collected for all eight programs did not exceed the total cost to regulate the entire waste
1 All further unspecified code sections refer to the Water Code.
1
discharge permit program. The Board maintains that CBIA incorrectly interprets the law
to impose a requirement that the fees charged to storm water dischargers must correspond
exactly to the costs of regulating that one program.
We conclude that section 181, not section 183, applies to the Board’s adoption of
the fee schedule and that the Board’s action complied with section 181. We also reject
CBIA’s principal argument that the fees and regulating expenses for one particular
program must be equal; we hold that section 13260 requires that the total fees collected
from all waste dischargers must equal the costs of regulating the entire waste discharge
permit program.
CBIA bears the burden of making a prima facie case showing the fee was invalid.
(See California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51
Cal. 4th 421, 436 (Farm Bureau).) Courts have held that a regulatory fee is valid as long
as the charges do not surpass the costs of regulating the program and the allocation of the
fees to the payor is fair and reasonable. (See, e.g., Sinclair Paint Co. v. State Bd. of
Equalization (1997) 15 Cal. 4th 866, 878 (Sinclair Paint); San Diego Gas & Electric Co.
v. San Diego County Air Pollution Control Dist. (1988) 203 Cal. App. 3d 1132, 1146;
Beaumont Investors v. Beaumont-Cherry Valley Water Dist. (1985) 165 Cal. App. 3d 227,
235.) Here, CBIA did not make a prima facie case that the charges surpassed the costs of
regulating the program or that allocation of the fees was unfair or unreasonable.
Accordingly, we affirm the judgment.
BACKGROUND
The Permit Fees for Water Dischargers
The Board, a state agency within the California Environmental Protection Agency,
regulates water rights and water quality. (§§ 175, 179.) In 1969, the Legislature added to
the Water Code, Assembly Bill No. 413 (Stats. 1969, ch. 482), which included the Porter-
Cologne Water Quality Act (the Act), a statewide program for water quality control.
(§ 13000 et seq.) Under this Act, nine regional boards, overseen by the Board, administer
the state program in their respective regions. (§§ 13140, 13200 et seq., 13240, 13301.)
2
The Act vests the Board with authority to formulate and adopt state policy for water
quality control. (§ 13140.)
Parties who discharge waste or propose to discharge waste “that could affect the
quality of the waters of the state” are required by the Act to file a “report of waste
discharge” (i.e., a permit application) with the Board. (§ 13260, subds. (a)-(c).) Each
party filing a permit application under the Act must pay an annual fee according to a fee
schedule established by the Board. (§ 13260, subd. (d)(1)(A).) The fees collected are
deposited in the Waste Discharge Permit Fund (the Fund), and “[t]he money in the
[F]und is available for expenditure by” the Board “upon appropriation by the Legislature
solely for the purposes of carrying out this division.” (Id., subd. (d)(2)(A).) “The total
amount of annual fees collected . . . shall equal that amount necessary to recover costs
incurred in connection with the issuance, administration, reviewing, monitoring, and
enforcement of waste discharge requirements and waivers of waste discharge
requirements.” (Id., subd. (d)(1)(B).)
The Board must annually adopt a water quality fee schedule by emergency
regulation to establish the amount of fees each discharger must pay that year. (§ 13260,
subd. (f)(1).) “The total revenue collected each year through annual fees shall be set at an
amount equal to the revenue levels set forth in the Budget Act for this activity. The state
board shall automatically adjust the annual fees each fiscal year to conform with the
revenue levels set forth in the Budget Act for this activity. If the state board determines
that the revenue collected during the preceding year was greater than, or less than, the
revenue levels set forth in the Budget Act, the state board may further adjust the annual
fees to compensate for the over and under collection of revenue.” (Ibid.)
The Schedule of Fees for the 2011-2012 Fiscal Year
For the 2011-2012 fiscal year, the annual Budget Act provided for $100,672,000
in spending from the Fund for the waste discharge permit program, but the projected
revenue based on the existing fee schedule was $73,070,000. The Board staff calculated
that it would have to increase the fees to compensate for a $27.6 million dollar shortfall,
and proposed significant fee increases in the eight program areas within the waste
3
discharge program, including the storm water program area.2 With regard to the storm
water program, the Board had collected substantially more revenues than it reported as
“expenditures” for each of the seven fiscal years prior to the fiscal year 2011-2012. The
net surplus over the seven years since fiscal year 2004-2005 was $23,506,000.
The Board’s staff proposed a 34.9 percent increase in fees for all storm water
dischargers to generate fee revenue to equal the storm water program area’s budget of
$26,619,000 for fiscal year 2011-2012. The Board scheduled a public hearing for
September 19, 2011, for the consideration of new “emergency regulations” related to the
proposed schedule of fees for fiscal year 2011-2012.
The Board currently consists of five members. (§ 175, subd. (a).) At the time of
the hearing on September 19, 2011, two seats on the Board were vacant. The remaining
three Board members conducting the hearing considered the opposition to the fee
increase presented by CBIA and others. The Board adopted Resolution 2011-0042,
which approved the proposed new schedule of fees. The new fee schedule increased the
storm water program fees by 34.9 percent; the total fee increase for all eight programs
cumulatively averaged 37.8 percent. Two of the three Board members voted for the
resolution, while the third abstained.
On September 22, 2011, the Board submitted the emergency regulation adopted at
the Board meeting on September 19, 2011, to the Office of Administrative Law for
approval. The emergency regulations were filed with the Secretary of State, and
published in the California Code of Regulations.
2 The Board asserts that these are eight program areas but acknowledges that its
own staff often refers to them as programs, not program areas. The Board claims that
“[a]ll eight program areas are merely different components of the same regulatory
activity.”
Without providing significant detail or description, the Board identifies the
following eight program areas: the storm water program, the national pollutant discharge
elimination system program, the waste discharge requirements program, the land disposal
with a “tipping” fee, the land disposal without a “tipping” fee, the 401 certification
program, the confined animal facilities program, and the irrigated lands regulatory
program.
4
Court Proceedings
On December 9, 2011, CBIA filed a petition for writ of mandate and a complaint
for declaratory and injunctive relief. CBIA is a nonprofit corporation with 3000 members
who are “active in all aspects of the home-building industry throughout California.”
CBIA and its members “are required to seek waste discharge and storm water discharge
permits from the Board[.]”
CBIA claimed the storm water fees were higher than the amount permitted under
section 13260 and were not a valid regulatory fee. Additionally, it claimed that section
183 requires a majority vote by all members of the Board to adopt a fee schedule, which
did not occur; therefore the fee, according to CBIA, was invalid.
The trial court held a hearing on September 20, 2012, and later that day issued an
order denying the writ petition. CBIA filed a motion for reconsideration, which was
heard on October 25, 2012. The court denied this motion and filed its judgment in favor
of the Board.
CBIA filed a timely notice of appeal. After filing their briefs, and at our request,
the parties provided supplemental briefing on the applicability of sections 181 and 183.
DISCUSSION
I. The Number of Board Members Necessary for Approval of the Fee
As noted, in September 2011, when the Board adopted the fee schedule for fiscal
year 2011-2012, two Board seats were vacant. Of the three remaining Board members
conducting the hearing in September 2011, two voted to approve the fee schedule; the
third member abstained.
CBIA contends that under the plain language of section 183, a majority of the
Board members—three—had to approve the fee schedule, and the approval by two Board
members was not procedurally valid. The Board responds that section 181, not section
183, applies to the Board’s action and the fee was validly approved pursuant to section
181 because two of the three Board members, a majority of the quorum, voted to adopt
the fee schedule.
5
A. Standard of Review
Interpreting statutes is a question of law subject to de novo review. (In re Tobacco
II Cases (2009) 46 Cal. 4th 298, 311.) “ ‘[A]s in any case of statutory interpretation, our
task is to determine afresh the intent of the Legislature by construing in context the
language of the statute.’ [Citation.] In determining such intent, we begin with the
language of the statute itself. [Citation.] That is, we look first to the words the
Legislature used, giving them their usual and ordinary meaning. [Citation.] ‘If there is
no ambiguity in the language of the statute, “then the Legislature is presumed to have
meant what it said, and the plain meaning of the language governs.” ’ [Citation.] ‘But
when the statutory language is ambiguous, “the court may examine the context in which
the language appears, adopting the construction that best harmonizes the statute internally
and with related statutes.” ’ [Citation.] [¶] In construing a statute, we must also consider
‘ “the object to be achieved and the evil to be prevented by the legislation.” ’ [Citation.]”
(People v. Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 192-193.) We “ ‘avoid a
construction that would produce absurd consequences, which we presume the Legislature
did not intend.’ ” (In re Greg F. (2012) 55 Cal. 4th 393, 406.)
B. The Plain Language of Section 181 and 183
Section 181, consistent with the common-law rule, provides that “[t]hree members
of the board shall constitute a quorum for the purpose of transacting any business of the
board.” (See Civ. Code, § 12 [“Words giving a joint authority to three or more public
officers or other persons are construed as giving such authority to a majority of them,
unless it is otherwise expressed in the Act giving the authority”]; Code Civ. Proc., § 15
[same].) “The almost universally accepted common-law rule . . . is, in the absence of a
contrary statutory provision, a majority of a quorum constituted of a simple majority of a
collective body is empowered to act for the body. Where the enabling statute is silent on
the question, the body is justified in adhering to that common-law rule.” (F.T.C. v. Flotill
Products, Inc. (1967) 389 U.S. 179, 183-184, fn. omitted; see also McCracken v. City of
San Francisco (1860) 16 Cal. 591, 602.) Here, three Board members were present at the
6
meeting and a majority of the quorum approved the fee schedule. Under section 181 and
the common law, the Board’s approval of the fee schedule was procedurally valid.
CBIA claims that section 183 creates an exception to the common law rule set
forth in section 181. According to CBIA, the plain language in the second paragraph of
section 183 requires a majority of the Board, which is three members, to approve any
final action of the Board.
Section 183 reads: “The board may hold any hearings and conduct any
investigations in any part of the state necessary to carry out the powers vested in it, and
for such purposes has the powers conferred upon heads of departments of the state by
Article 2 (commencing with Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the
Government Code. [¶] Any hearing or investigation by the board may be conducted by
any member upon authorization of the board, and he shall have the powers granted to the
board by this section, but any final action of the board shall be taken by a majority of all
the members of the board, at a meeting duly called and held. [¶] All hearings held by the
board or by any member thereof shall be open and public.” (§ 183, fn. omitted.)
We begin with the presumption that, in the absence of an express provision,
statutes do not alter the common law and should be construed to avoid conflict with
common law rules. (Saala v. McFarland (1965) 63 Cal. 2d 124, 130, fn. omitted; see also
Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804, 815.) Accordingly, “ ‘[r]epeal by implication
is recognized only where there is no rational basis for harmonizing two potentially
conflicting laws.’ [Citation.]” (California Assn. of Health Facilities v. Department of
Health Services (1997) 16 Cal. 4th 284, 297.)
The middle paragraph of section 183 authorizes a single member of the Board to
conduct a hearing or investigation, but specifies that no final action can be taken at that
hearing. The first part of the sentence permits hearings and investigations to be
“conducted by any member upon authorization of” the Board, and the second part of the
same sentence specifies “but any final action of the board shall be taken by a majority of
all the members of the board, at a meeting duly called and held.” (§ 183, italics added.)
The word “but” is a conjunction and is “used to express a difference or to introduce an
7
added statement.” (.) The use of the word “but” plainly ties the requirement of taking any final
action by a majority to the first phrase, which refers to a hearing conducted by one Board
member. Furthermore, the end of the sentence specifies that the final action will be taken
by a majority of Board members “at a meeting duly called and held” (§ 183); no
subsequent meeting would need to be called except in a situation where fewer than a
quorum participated in the first hearing or meeting.
Focusing on the word “any,” CBIA asserts that the “plain meaning” of section 183
is that “any final action” of the Board must be taken by a majority of the members of the
Board. They insist that “ ‘[t]he word “any” is not ambiguous[.]’ ” (See People v.
Dunbar (2012) 209 Cal. App. 4th 114, 117-118 [statute targets the forgery of “ ‘any book
of records[,]’ ” and the use of the word “ ‘any’ ” indicated that it applied to public or
private records, not just public records]; see also Department of California Highway
Patrol v. Superior Court (2008) 158 Cal. App. 4th 726, 736 [use of “the word ‘any’ . . . in
a statute unambiguously reflects a legislative intent for that statute to have a broad
application”].)
We agree that, standing alone, the word “any” is unambiguous. However, CBIA
has not construed this word, as it must, in the context in which it appears. (See Lungren
v. Deukmejian (1988) 45 Cal. 3d 727, 735.) We interpret “any,” as we interpret all the
words of the statute, in context, harmonizing to the extent possible all provisions relating
to the same subject matter. (County of Alameda v. Pacific Gas & Electric Co. (1997) 51
Cal. App. 4th 1691, 1698.) “[T]he word ‘any’ means without limit and no matter what
kind.” (Delaney v. Superior Court (1990) 50 Cal. 3d 785, 798.) The plain meaning of
this word in context is that all final actions following a hearing or investigation by one
Board member must be “taken by a majority of all the members of the board” at another
duly called meeting. (§ 183.) This construction is consistent with a broad rather than
narrow application of the word “any” (see, e.g., Utility Cost Management v. Indian Wells
Valley Water Dist. (2001) 26 Cal. 4th 1185, 1191 [“[t]he use of the word ‘any’ and the
inclusion of several disjunctives to link essentially synonymous words all serve to
8
broaden the applicability of the provision”]), as no particular action or subset of actions
following the hearing or investigation of a single Board member is exempt from the
requirement that final action can only be “taken by a majority of all the members of the
board, at a meeting duly called and held.” (§ 183.) The Legislature by using the word
“any” clearly intended to prevent the Board from ever being able to delegate final
decision-making authority to one Board member.
Furthermore, our interpretation of section 183 is consistent with section 175.
Subdivision (b) of section 175 states that members of the Board “shall, to the extent
possible, be composed of members from different regions of the state” and subdivision
(a) provides that the members must represent diverse specialties: “One of the members
appointed shall be an attorney admitted to practice law in this state who is qualified in the
fields of water supply and water rights, one shall be a registered civil engineer under the
laws of this state who is qualified in the fields of water supply and water rights, one shall
be a registered professional engineer under the laws of this state who is experienced in
sanitary engineering and who is qualified in the field of water quality, and one shall be
qualified in the field of water quality. One of the above-appointed persons, in addition to
having the specified qualifications, shall be qualified in the field of water supply and
water quality relating to irrigated agriculture. One member shall not be required to have
specialized experience.” (§ 175, subd. (a).) Section 175 indicates that the Legislature
appreciated that the hearings and investigations before the Board requires specialized
knowledge and thus under section 183 the Legislature permits the Board to delegate the
responsibility of a hearing or an investigation to a Board member with the requisite
specialization. However, the expertise of that Board member does not enable him or her
to make any final decision; any final action pursuant to this section requires a subsequent
hearing and must “be taken by a majority of all the members of the board . . . .” (§ 183.)
The interpretation urged by CBIA and Justice Richman creates an unnecessary
conflict between sections 181 and 183. These statutes can clearly be harmonized, as the
express language of section 183 indicates that it applies only to situations in which the
Board has delegated authority to one member to conduct a hearing or meeting.
9
Accordingly, because a quorum participated in the hearing pertinent to this case, section
183 does not apply.
C. Legislative History
Because we believe the plain language of section 183 makes clear that it does not
apply to all final decisions, we do not need the aid of legislative history to determine the
statute’s true meaning. (See People v. Gonzalez (2014) 60 Cal. 4th 533, 537-538.) We
consider the legislative history only because CBIA and Justice Richman rely so heavily
upon it.3
CBIA reads the legislative history as indicating that section 183 applies to all final
actions of the Board. Sections 181 and 183, which were formerly sections 191 and 193,
respectively, were enacted in 1956. At that time, the Board was comprised of three
members. Former section 191 provided: “The board shall maintain its headquarters at
Sacramento and shall hold meetings at such times and at such places as shall be
determined by it. The Governor shall designate the time and place for the first meeting of
the board. All meetings of the board shall be open and public.” (Stats. 1956, 1st Ex.
Sess., ch. 52, § 7.) Former section 193 stated: “The board may hold hearings and
conduct any investigations in any part of the State necessary to carry out the powers
vested in it, and for such purposes as the powers conferred upon heads of departments of
the State by Article 2 . . . . [¶] Any hearing or investigation by the board may be
conducted by any member of the board upon authorization of the board, and he shall have
3 Justice Richman criticizes us for analyzing the “naked language of the two
statutes,” while he avoids any substantial examination of the text of section 183. (Dis.
opn. of Richman, J., p. 1.) As is often said, the words of the statute “are the most reliable
indicator of legislative intent.” (People v. Lopez (2003) 31 Cal. 4th 1051, 1056.) He also
states that he is “puzzled” by our “invocation of the principle that statutes in derogation
of the common law are to be strictly construed.” (See dis. opn., p. 11, fn. 8.) This is a
clear misreading of our opinion. Section 183, unlike other statutes that expressly conflict
with the common law rule (see, e.g., Gov. Code, § 25005), does not alter the common
law quorum rule set forth in section 181. Had the Legislature intended the interpretation
advocated by the dissent it would have said so clearly in section 183. (See Civ. Code,
§ 12; Code Civ. Proc., § 15.)
10
the powers granted to the board by this section, but any final action of the board shall be
taken by the board as a whole. [¶] All hearings held by the board or by any member
thereof shall be open and public.” (Stats. 1956, 1st Ex. Sess., ch. 52, § 7.)
In 1957, sections 191 and 193 were renumbered as sections 181 and 183 (Stats.
1957, ch. 1932), and section 181 was amended to add the following as the final sentence:
“Two members of the board shall constitute a quorum for the purpose of transacting any
business of the board.”4 (Stats. 1957, ch. 947, § 4.) Section 183 was amended to change
“any final action of the board shall be taken by the board as a whole” to “any final action
of the board shall be taken by a majority of members of the board at a meeting duly
called and held.” (Stats. 1957, ch. 1824, § 2.)
On June 14, 1957, Office of Legislative Counsel provided a “Report on Senate
Bill No. 2199,” stating in pertinent part the following: “Section 181 of the code, as
amended by Chapter 947 (A.B. 2970) of this session, provides that two members of the
board shall constitute a quorum for the purpose of transacting any business of the board.
This bill would make it clear that the same number of members may take any final action
of the board.”5 Sections 181 and 183 have developed parallel to each other and the
Board’s interpretation of the statutes, consistent with the Office of Legislative Counsel’s
statement, reflects that the Legislature never intended for section 183 to supplant section
181. Rather, the Board’s long-established interpretation of section 181 has been that it
generally applies to “any final action” of the Board. When an administrative agency has
consistently interpreted statutory language over time, its long-standing analysis is entitled
to greater deference. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal. 4th 1, 13.)
4
In 1967, when the size of the Board was increased to five members, section 181
was amended to state that three members of the Board constitute a quorum.
5 At oral argument, CBIA claimed, without citing any authority, that section 183
concerns “quasi-legislative, rule-making” decisions and section 181 applies solely to
business decisions. This argument is inconsistent with the Legislative Counsel’s
comment and the plain language of section 183.
11
In 1969, Assembly Bill No. 412 amended the second paragraph of section 183 by
adding the word “all” so that section 183 required that “any final action of the board shall
be taken by a majority of all the members of the board at a meeting duly called and
held[.]” (Stats. 1969, ch. 482, § 2.) CBIA and Justice Richman rely heavily on a letter
dated July 29, 1969, from Senator Gordon Cologne, Chair of the Senate Water Resources
Committee, regarding this bill. This letter, printed in the Senate Journal, quotes the
report from the Committee on Water Resources, and specifies that the following
comments in the report are to “be utilized to assist in the determination of legislative
intent” in approving Assembly Bill No. 412. Under the heading of “Section 183,” the
report provides: “The present law is ambiguous as to whether final action by the state
board always requires a majority consisting of three members of the five-man state board,
or whether the majority required is only that of the ‘members of the board (present) at a
meeting duly called and held.’ In the latter case three members could constitute a
quorum, and the vote of two members would constitute a majority of the members at the
meeting. An amendment has been made to this section to remove the ambiguity by
requiring that final board action shall always require the concurrence of a majority of all
the members of the board, not merely a majority of a quorum.”
CBIA and Justice Richman attribute far more significance to Senator Cologne’s
letter quoting the report from the Committee on Water Resources than it warrants.6
6 CBIA also cites Marina County Water Dist. v. State Water Resources Control
Bd. (1984) 163 Cal. App. 3d 132. In Marina County Water Dist., the Court of Appeal did
not interpret section 183. The appellate court, when setting forth the background facts,
noted that the superior court had declared a Board order void “because it was not
approved by a majority, i.e., three members, of the Board as required by . . . section 183.”
It pointed out that the Board “[s]ubsequently issued a second order . . . exactly the same
as the first, but approved by the requisite majority. (Marina County Water Dist., at p.
136.) It is unclear from this opinion whether one member or a quorum participated in the
first vote. Moreover, the court did not consider the correct interpretation of section 181
or section 183. Accordingly, Marina County Water Dist. does not provide any authority
for the proper construction of section 183. (See, e.g., Silverbrand v. County of Los
Angeles (2009) 46 Cal. 4th 106, 127 [cases are not authority for issues they did not
consider or decide].)
12
According to our colleague, Senator Cologne’s letter “is virtually conclusive proof that
the Legislature expressly intended that section 183 [require] that ‘final board action shall
always require a concurrence of a majority of all the members of the board, not merely a
quorum.’ ” (Dis. opn., p. 1, Justice Richman’s italics.) That is clearly not the case.
CBIA and Justice Richman misread the letter quoting the report. As the “comment”
states, the ambiguity to be eliminated was “whether final action by the state board always
requires a majority consisting of three members of the five-man state board, or whether
the majority is only that of the ‘members of the board (present) at a meeting duly called
and held.’ ” The amendment was needed to make clear “that final board action shall
always require the concurrence of a majority of all the members of the board, not merely
a majority of a quorum.” The “final action” mentioned in the report referred solely to the
portion of section 183 concerned with a hearing or investigation conducted by a single
member. The amendment simply clarified that section 183 requires a majority vote of the
Board with respect to final action on any matter heard or investigated by a single member
of the Board. It is telling that Senator Cologne’s letter and the report never mention
section 181; his silence demonstrates the absence of any intention to do away with the
general rule set forth in section 181 that “[t]hree members of the board shall constitute a
quorum for the purpose of transacting any business of the board.”
CBIA’s and Justice Richman’s expansive reading of section 183 ignores the
principle that common law rules can be statutorily altered only expressly, not by
implication. (Saala v. McFarland, supra, 63 Cal. 2d 124, 130; California Assn. of Health
Facilities v. Department of Health Services, supra, 16 Cal. 4th 284, 297; County of
Sonoma v. Superior Court (2009) 173 Cal. App. 4th 322, 345-346 & fn. 11 [court
explained that Government Code section 25005 expressly modifies the common law rule
because this statute provides, “ ‘[n]o act of the board shall be valid or binding unless a
majority of all members concur therein’ ”].) If the purpose of section 183 was to
overrule section 181, as CBIA and Justice Richman insist, the Legislature would certainly
have done so explicitly. It did not.
13
For the foregoing reasons, we conclude that section 181 applies to the Board’s
adoption of the fee schedule and the Board complied with this statute when three Board
members attended the hearing on the fee schedule for the 2011-2012 fiscal year and two
of the three voted to adopt the fee schedule.7
II. Compliance with Section 13260
CBIA contends that the Board violated section 13620 by collecting fees beyond
the sum needed to regulate the storm water program. The Board acknowledges that the
fees for storm water dischargers exceeded the actual expenditures for that program but
claims CBIA’s interpretation of the requirements under section 13620 is incorrect. The
statute, according to the Board, obligates it to collect fees from all the water dischargers
equal to the total expense of regulating the entire waste discharge permit program and it
does not need to balance the fees for one program by that one program’s costs. The trial
court agreed with the Board’s interpretation of the statute and we review its ruling de
novo. (See, e.g., In re Tobacco II Cases, supra, 46 Cal.4th at p. 311.)
When specifying who must file a report of water discharge, section 13260,
subdivision (a), does not refer to the storm water program or any of the other seven
program areas. Rather, it provides that the following persons must file a report of
discharge with the appropriate regional board: “(1) A person discharging waste, or
proposing to discharge waste, within any region that could affect the quality of the waters
of the state, other than into a community sewer system. [¶] (2) A person who is a
citizen, domiciliary, or political agency or entity of this state discharging waste, or
proposing to discharge waste, outside the boundaries of the state in a manner that could
affect the quality of the waters of the state within any region. [¶] (3) A person
7 The Board argues that an independent reason for rejecting CBIA’s argument is
that section 183 requires a majority of the Board members (three) to participate in the
final action, and does not require a majority to vote in the affirmative. Because the Board
hearing at issue was not conducted by a single member and section 183 does not apply,
we have no need to decide whether section 183 expressly modifies the common law rule
for final actions taken on matters heard or investigated by a single member pursuant to
section 183.
14
operating, or proposing to construct, an injection well.” (§ 13260, subd. (a).)
Each party applying for a permit must pay an annual fee specified by a schedule
established by the Board. (§ 13260, subd. (d)(1)(A).) The references to the fees and
costs are not to a specific program but relate to “the total” amount of fees or all
recoverable costs. Thus, subdivision (d)(1)(B) of section 13260 states: “The total
amount of annual fees collected pursuant to this section shall equal that amount necessary
to recover costs incurred in connection with the issuance, administration, reviewing,
monitoring, and enforcement of waste discharge requirements and waivers of waste
discharge requirements.” (Italics added.) Except as noted below, the statute does not tie
any recoverable costs to a particular program: “Recoverable costs may include, but are
not limited to, costs incurred in reviewing waste discharge reports, prescribing terms of
waste discharge requirements and monitoring requirements, enforcing and evaluating
compliance with waste discharge requirements and waiver requirements, conducting
surface water and groundwater monitoring and modeling, analyzing laboratory samples,
adopting, reviewing, and revising water quality control plans and state policies for water
quality control, and reviewing documents prepared for the purpose of regulating the
discharge of waste, and administrative costs incurred in connection with carrying out
these actions.” (§ 13260, subd. (d)(1)(C).)
Section 13260, subdivision (d)(1)(B) refers to the “total amount of annual fees
collected” and the total fees must equal “[t]he total amount . . . necessary to recover” the
Board’s costs relating to all waste discharge requirements. Similarly, subdivision (f)(1)
of section 3260 refers to all fees or the “total” fees imposed under section 13260, not to
fees associated with a particular program. Section 13260, subdivision (f)(1) requires the
Board to adopt a water quality fee schedule by emergency regulation each year to
establish the amount of fees each discharger must pay. (§ 13260, subd. (f)(1).) “The
total revenue collected each year through annual fees shall be set at an amount equal to
the revenue levels set forth in the Budget Act for this activity. The state board shall
automatically adjust the annual fees each fiscal year to conform with the revenue levels
set forth in the Budget Act for this activity. If the state board determines that the revenue
15
collected during the preceding year was greater than, or less than, the revenue levels set
forth in the Budget Act, the state board may further adjust the annual fees to compensate
for the over and under collection of revenue.” (Ibid., italics added.)
Section 13260 repeatedly refers to the total costs and expenses of the discharge
water program. None of the language in section 13260 indicates that the fees and
expenses are to be correlated for each of the eight program areas within the current waste
discharge program. The Legislature’s failure to mention the storm water program while
discussing the Board’s obligation to balance the fees by its regulating costs cannot be
deemed an oversight because the Legislature does specifically name the storm water
program elsewhere in section 13260. Section 13260 provides that some stormwater
dischargers, those subject to the national pollutant discharge elimination system
(NPDES), must be separately accounted for in the Fund and requires some of those funds
to be spent within the same region where those dischargers are located “to carry out
stormwater programs in the region.” (§ 13260, subds. (d)(2)(B)(i), (d)(2)(B)(ii).) Some
of those funds must also be spent “on stormwater inspection and regulatory compliance
issues associated with industrial and construction stormwater programs.” (§ 13260, subd.
(d)(2)(B)(iii).) This provision requires special treatment of fees and funds for storm
water dischargers subject to NPDES but there is no suggestion that the Board must
balance the fee for the storm water program with the revenue from that program.8 (See
§ 13260, subds. (d)(2)(B)(i)-(iii).)
CBIA contends that reference in section 13260 to multiple fees confirms that the
statute requires the Board to establish a schedule of fees for each program. CBIA also
maintains that the record establishes that the Board’s claim of one fee is a fiction, as the
Board has created eight separate budgets and calculated eight separate fees for each
program.
8 Neither the Board nor CBIA explains the reasons for these requirements,
although the Board declares, “The reasons for these requirements are not stated in section
13260 and are not relevant here.” The complaint does not allege that CBIA or its
members are participants in NPDES.
16
The reference to multiple fees in section 13260, subdivision (f)(1), simply
indicates that the total fee is to be comprised of the various fees. Indeed, the Board
acknowledges that it sets different fees for each program area prior to calculating the total
fee. As just explained, the statute does not mandate that the fee for each program area
must correspond to the costs of that particular program. “Where the words of the statute
are clear, we may not add to or alter them to accomplish a purpose that does not appear
on the face of the statute or from its legislative history.” (Burden v. Snowden (1992) 2
Cal. 4th 556, 562.) Furthermore, section 13260 states that the fees shall be adjusted to
conform “with the revenue levels set forth in the Budget Act” and this revenue consists of
a single appropriation from the Fund to help support the entire waste discharge permit
program.
Finally, the legislative history of section 13260 does not support CBIA’s
construction of section 13260. In 1969, this statute provided that any person discharging
waste or proposing to discharge waste was to file a report “accompanied by a filing fee
not to exceed one thousand dollars ($1,000) according to a reasonable fee schedule
established by the state board.” (Former § 13260, subd. (d).) The amount of the
maximum fee was increased to $10,000 in 1989, and the “[f]ees [were to] be calculated
on the basis of total flow, volume, number of animals, or area involved.” (Former
§ 13260, subd. (d).) No program is mentioned in the original statute or in its amendment
in 1989.
Subdivision (f)(1), which also refers to the “total revenue collected,” was added to
section 13260 and enacted in 1989. In 2003, section 13260 was amended to specify that
each person filing a report of waste discharge must “submit an annual fee according to a
fee schedule established by the state board” and “the total amount of annual fees” are to
“equal that amount necessary to recover costs incurred in connection” with regulating the
entire waste discharge program. (§ 13260, subds. (d)(1)(A) & (B).) Indeed, the
Legislature amended section 13260 repeatedly through 2011, but none of the
amendments required the fee for a particular program to equal the cost for regulating that
program. To the contrary, the language connecting the schedule of fees to the “total
17
revenue” remained intact. “ ‘The failure of the Legislature to change the law in a
particular respect when the subject is generally before it and changes in other respects are
made is indicative of an intent to leave the law as it stands in the aspects not amended.’
[Citations.]” (Estate of McDill (1975) 14 Cal. 3d 831, 837-838.)
Accordingly, we affirm the trial court’s construction of section 13260, which did
not require the Board to correlate the fees for a particular program with the costs for that
program.
III. Valid Regulatory Fee or Invalid Tax?
A. The Difference Between a Fee and a Tax
CBIA contends that the fee charged to the storm water dischargers was not a legal
regulatory fee, but an invalid tax.9 The Board’s authority under section 13260 is limited
to collecting revenue reasonably equal to the costs for regulating the water discharge
permit program; thus, it does not have broad legislative authority under this statute to
impose a tax on water dischargers. (See, e.g., Abbott Laboratories v. Franchise Tax Bd.
(2009) 175 Cal. App. 4th 1346, 1360.)
The term “ ‘ “tax” has no fixed meaning [and] the distinction between taxes and
fees is frequently “blurred,” taking on different meanings in different contexts.’ ” (Farm
Bureau, supra, 51 Cal.4th at p. 437.) Regulatory fees are imposed under the state’s
police power rather than its taxing power, and must bear a reasonable relationship to the
9 CBIA argues that the Board’s fee is an unconstitutional tax but it does not cite
any constitutional provision. It relies on cases applying Proposition 13, which became
part of the California Constitution and the original provision required a two-thirds vote of
the Legislature to impose “any changes in state taxes enacted for the purpose of
increasing revenues.” (Former Cal. Const., art. XIII A, § 3.) However, Proposition 26
modified Proposition 13, effective November 2, 2010. The current provision in the
California Constitution restricts “[a]ny change in state statute which results in any
taxpayer paying a higher tax . . . .” (Cal. Const., art. XIII A, § 3.) The Board’s fee
schedule is not a “change in state statute,” and this constitutional provision does not
apply. (See Western States Petroleum Assn. v. Board of Equalization (2013) 57 Cal. 4th
401, 423-424.) Rather than a constitutional challenge to the fee, CBIA’s argument is
essentially that, under the case law applying the original language of Proposition 13, the
Board’s imposition is not a valid regulatory fee, but an illegal tax.
18
fee payor’s burdens on or benefits from the regulatory activity. (Sinclair Paint, supra, 15
Cal.4th at pp. 874-878.) In contrast, a tax may be imposed upon a class that may enjoy
no direct benefit from its expenditure and is not directly responsible for the condition to
be remedied. (Leslie’s Pool Mart, Inc. v. Department of Food & Agriculture (1990) 223
Cal. App. 3d 1524, 1543; see also Schmeer v. County of Los Angeles (2013) 213
Cal. App. 4th 1310, 1326 [generally, “tax” “refers to a compulsory payment made to the
government or remitted to the government”].)
B. The Test for Determining Whether the Charge is a Fee or a Tax
Whether the Board’s imposition is a tax or a fee is a question of law decided upon
an independent review of the record. (Farm Bureau, supra, 51 Cal.4th at p. 436 .) “The
plaintiff challenging a fee bears the burden of proof to establish a prima facie case
showing that the fee is invalid. [Citations.] In other words, the plaintiff bears the burden
of proof ‘with respect to all facts essential to its claim for relief.’ [Citations.] The
plaintiff ‘must present evidence sufficient to establish in the mind of the trier of fact or
the court a requisite degree of belief (commonly proof by a preponderance of the
evidence).” (Ibid., fn. omitted.)
“[O]nce plaintiffs have made their prima facie case, the state bears the burden of
production and must show ‘ “(1) the estimated costs of the service or regulatory activity,
and (2) the basis for determining the manner in which the costs are apportioned, so that
charges allocated to a payor bear a fair or reasonable relationship to the payor’s burdens
on or benefits from the regulatory activity.” ’ [Citations.]” (Farm Bureau, supra, 51
Cal.4th at pp. 436-437; quoting Sinclair Paint, supra, 15 Cal.4th at p. 878; see also
Beaumont Investors v. Beaumont-Cherry Valley Water Dist., supra, 165 Cal.App.3d at
p. 235.) Flexibility in establishing the amount of regulatory fees is important (California
Assn. of Prof. Scientists v. Department of Fish & Game (2000) 79 Cal. App. 4th 935, 950
(Prof. Scientists)), but “[a]n excessive fee that is used to generate general revenue
becomes a tax” (Farm Bureau, at pp. 436-437).
19
C. The Reasonableness of the Fee
With regard to CBIA’s burden of producing prima facie evidence that the fee was
unreasonable, the trial court stated that CBIA made “no showing” that the fees were
unreasonable.10 In the trial court and on appeal, CBIA focuses on the discrepancy
between the costs and fees for the storm water program. As discussed ante, the
reasonableness of the fees relates to the costs of regulating the entire water discharge
program. Moreover, the reasonableness of the fee is not measured by the impact on an
individual payor; “[t]he question of proportionality is not measured on an individual
basis. Rather, it is measured collectively, considering all rate payors.” (Farm Bureau,
supra, 51 Cal.4th at p. 438.) “Thus, permissible fees must be related to the overall cost of
the governmental regulation. They need not be finely calibrated to the precise benefit
each individual fee payor might derive.” (Ibid.; see also Collier v. City and County of
San Francisco (2007) 151 Cal. App. 4th 1326, 1353 [court held it was reasonable to
transfer building permit fee revenues from the department of building inspection to the
planning and fire departments to cover actual costs incurred in performing regulatory
activities related to the building permit process].) “ ‘Legislators “need only apply sound
judgment and consider ‘probabilities according to the best honest viewpoint of informed
officials’ in determining the amount of the regulatory fee.” [Citation.]’ [Citation.]”
(Farm Bureau, at p. 438.)
The trial court correctly found that CBIA failed to make a prima facie case that the
fee was unreasonable.11 CBIA did argue that the fees were too high because the Board
10 The trial court also rejected CBIA’s claim that the fees violated its due process
rights based on their being retrospective. On appeal, CBIA does not argue that the fees
are illegally retroactive and we may disregard issues not addressed in the briefs; we may
treat them as having been abandoned or waived. (See Reyes v. Kosha (1998) 65
Cal. App. 4th 451, 466, fn. 6.) Accordingly, we do not consider the legality of retroactive
fees.
11 In its reply brief, CBIA does attack the evidence presented by the Board, but it
does not cite evidence it presented in the trial court that showed the total fees charged by
the Board surpassed the estimated costs for regulating the entire water discharge
program.
20
anticipated a $27 million increase in program expenditures for fiscal year 2011-2012 but
did not increase program activities that year.12 The Board responded that the permit
program lost much of its general fund subsidy, and the Board had to increase all fees,
including the stormwater discharge fee, to cover the program’s costs as established in the
Budget Act. Thus, fees were increased to maintain adequate revenue in the Fund even
though total spending for the waste discharge permit program remained the same.
Although the burden of production never shifted to the Board, it did produce
evidence regarding the reasonableness of the total fee. For fiscal year 2011-2012, the
Board’s fee schedule was based upon anticipated revenue of $101.2 million, including
$100.7 million in fee revenue and $602,000 in other revenue. Those anticipated revenues
closely corresponded to the projected expenditures of $101.4 million from the Fund.
Moreover, the fees collected were deposited in the Fund and that money could be used
“solely for the purposes of” the waste discharge permit program. (§ 13260, subd.
(d)(2)(A).)
Accordingly, the trial court properly rejected CBIA’s contention that the amount
of fees anticipated to be collected surpassed the cost of the regulatory services or
programs they were designed to support.
D. The Reasonableness of the Cost Allocations
The trial court did not consider the second prong of the test for assessing whether
the imposition is a fee or a tax, which is whether the Board’s method of assessing the
challenged fees among the payors was reasonable or fair “ ‘ “so that charges allocated to
12 To the extent CBIA is arguing that the Board’s projections were based on
expenditures, rather than costs, we reject this argument. Section 13260 refers to both
costs and expenditures. Subdivision (d)(1)(B) states that the annual fees “shall equal that
amount necessary to recover costs” of regulating the program. (§ 13260, subd.
(d)(1)(B).) Subdivision (d)(2)(A) provides that the fees are to be deposited in the Fund
and that money “is available for expenditure by the state board . . . .” (§ 13260, subd.
(d)(2)(A).) CBIA does not present evidence that the Board made any improper
expenditures and it was not unreasonable for the Board to estimate the costs based on
expected expenditures. (See Farm Bureau, supra, 51 Cal.4th at p. 438.)
21
a payor bear a fair or reasonable relationship to the payor’s burdens on or benefits from
the regulatory activity.” ’ ” (Farm Bureau, supra, 51 Cal.4th at pp. 436-437.)
The Board claims that CBIA did not contend in the trial court or on appeal that the
fee was unreasonably allocated. CBIA vigorously disputes this assertion and stresses that
its principal objection to the fee was that storm water dischargers were paying an
unreasonably high fee given that the Board had collected substantially more revenue than
it reported as “expenditures” for the storm water program for each of the seven fiscal
years prior to the fiscal year 2011-2012 for a net surplus of $23,506,000. CBIA might
not have used the word allocation in its opening brief or in the trial court, but its
argument that the storm water dischargers were paying an unfair fee is essentially an
unfair allocation argument.
As the court in Prof. Scientists, supra, 79 Cal. App. 4th 935 pointed out, most
courts considering whether a charge is a fee or a tax have considered the reasonableness
of the fee and not “[t]he more difficult issue . . . [of] what latitude [the state agency] has
in establishing the amount of a fee imposed on an individual payor.” (Id. at p. 946; see
Sinclair Paint, supra, 15 Cal.4th at pp. 872, 881 [paint manufacturers were assessed fees
in proportion to their share of the market and plaintiffs would have opportunity at trial to
show “that the amount of the fees bore no reasonable relationship to the social or
economic ‘burdens’ its operations generated”].) The court in Prof. Scientists reviewed
the few decisions that considered this latter issue and concluded: “While the formula or
rate structure may not have been exact, each bore some relationship to the benefit reaped
or the burden imposed by the payor. Put another way, the payors had some control over
the amount of the regulatory fee they were compelled to pay by the degree to which their
respective activities impacted the environment. The more they polluted the air and
consumed the water, the more they paid.” (Prof. Scientists, at pp. 949-950, citing Pennell
v. City of San Jose (1986) 42 Cal. 3d 365, 375 [upheld a rent control ordinance, which
imposed a flat annual fee on each rental unit, as a regulatory fee, because fee was
“designed to defray the costs of providing and administering the hearing process
prescribed in the ordinance, not to pay general revenue to the local government”]; San
22
Diego Gas & Electric Co. v. San Diego County Air Pollution Control Dist., supra, 203
Cal.App.3d at p. 1136 [fee to support air pollution control district was reasonable as it
was apportioned to be based in part on the amount of emissions on premises]; Brydon v.
East Bay Mun. Utility Dist. (1994) 24 Cal. App. 4th 178, 196-204 [new rate structure
increasing the price of water was not arbitrary or capricious].)
With regard to the challenged fee in Prof. Scientists, supra, 79 Cal. App. 4th 935,
the court concluded that a flat filing fee imposed by the Department of Fish and Game to
help defray some of its costs in meeting its environmental review obligations was a
regulatory fee, not a tax. The court held “that a regulatory fee, to survive as a fee, does
not require a precise cost-fee ratio. A regulatory fee is enacted for purposes broader than
the privilege to use a service or to obtain a permit. Rather, the regulatory program is for
the protection of the health and safety of the public. The legislative body charged with
enacting laws pursuant to the police power retains the discretion to apportion the costs of
regulatory programs in a variety of reasonable financing schemes.” (Prof. Scientists, at
p. 950.)
We decline to consider whether the Board met its burden of production because
we conclude that CBIA failed to make a prima facie case. CBIA did not offer evidence
that the Board’s allocation of the fee based on expected expenditures for the 2011-2012
fiscal year was unfair or unreasonable. Although the burden of production therefore
never shifted, the Board nevertheless submitted evidence that the fee imposed on storm
water dischargers did bear a reasonable relationship to the burdens of regulating that
program. The storm water program area’s budget for the fiscal year of 2011-2012 was
$26.6 million and projected revenue was $19.7 million. The Board’s action in increasing
the fee for storm water dischargers by 34.9 percent was not unreasonable as this increase
generated the $6.9 million difference between the budget and projected revenue for the
storm water program. Furthermore, the fee increase for the storm water program was
slightly less than the average increase for all of the programs, which was 37.8 percent.
CBIA presented evidence that the Board had collected substantially more revenue
than it reported as “expenditures” for the storm water program for each of the seven fiscal
23
years prior to the fiscal year 2011-2012 for a net surplus of $23,506,000. CBIA’s
argument is essentially that the fee was unfair because the Board should have
compensated storm water dischargers in 2011-2012 for the overpayment in earlier years.
It maintains that the Board had no reasonable reason for refusing to do this and cites the
Board’s statement that it considered limiting the increase in fees for storm water
dischargers but decided not to compensate them for the prior years of surplus, primarily
because it concluded that those who contributed to the surplus were probably not the
same people who would benefit. CBIA claims that the Board provided no evidence to
support this latter conclusion.
The Board did not need to provide evidence unless CBIA met its burden of
making a prima facie case, which it failed to do. CBIA did not present evidence that the
Board unfairly deviated from its usual method when calculating the fee for the storm
water program; nor did it submit evidence that the Board had limited increases in fees for
any of the other seven programs to offset their surpluses in prior years. Subdivision (f)(1)
of section 13260 states that the Board “may further adjust the annual fees to compensate
for the over and under collection of revenue.” There is no requirement that it must do so
and thus CBIA had to provide evidence that the Board’s failure to do so when setting the
2011-2012 fees was unreasonable or unfair.
Additionally, CBIA proffered no evidence that the Board’s method unfairly
caused the surplus revenue in earlier years. Again, although the burden of production
never shifted, the Board offered evidence that its method did not cause the surplus. The
inaccurate projections for the storm water program were due to this program’s revenue
being generated by the economically volatile construction industry.
CBIA argues that we should remand to the trial court to provide it with an
opportunity to make factual findings. (See Farm Bureau, supra, 51 Cal.4th at p. 442.)
We decline to do so because CBIA failed as a matter of law to meet its burden of making
a prima facie case that the fee was an illegal tax.
DISPOSITION
We affirm the judgment. CBIA is to pay the costs of appeal.
24
_________________________
Kline, P. J.
I Concur:
_________________________
Brick, J.*
California Building Industry Association v. State Water Resources Control Board
(A137680)
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
25
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Curtis E. A. Karnow
Attorneys for Plaintiff and Appellant: Rutan & Tucker, LLP
David P. Lanferman
Attorneys for Defendant and Respondent: Kamala D. Harris
Attorney General of California
Paul D. Gifford
Robert W. Byrne
Senior Assistant Attorneys General
Gavin G. McGabe
Molly K. Mosley
Supervising Deputy Attorneys General
Robert E. Asperger
Tiffany Yee
Deputy Attorneys General
26
A137680, California Building Industry Association v. State Water Resources Control
Board et al.
Dissenting opinion of Richman, J.
A rule of the common law, codified in a number of California statutes, is that a
quorum of the full membership of a decisionmaking entity may transact business, and a
majority of that quorum may enact, pass, or approve any measure entrusted to that entity.
The question presented here is whether the common law rule, codified as Water Code
section 181 (section 181) and applicable to the five members of the State Water
Resources Control Board (Board), overrides another statute, Water Code section 183
(section 183), which commands that “any final action of the board shall be taken by a
majority of all the members of the board.” 1 The majority concludes that section 181
states the general rule, to which the differing rule of section183 constitutes an exception
not applicable here.
If all we had to work with was the naked language of the two statutes, I might
agree with the majority. But we are not required to hazard an answer based on such a
slim basis. The majority-of-a-quorum common law rule has, from the earliest days of the
state, always been recognized as subject to statutory modification requiring a specified or
absolute majority to take certain action. An unusual item of legislative history from the
1969 amending of section 183 constitutes what I think is virtually conclusive proof that
the Legislature expressly intended that section 183 be such a statute, one requiring that
“final board action shall always require a concurrence of a majority of all the members of
the board, not merely a majority of a quorum.” (Italics added.) Thus, when the Board
considers whether to vote yea or nay on a proposed final action, it is section 183, not
section 181, that states the general rule, thus requiring at least three affirmative or
negative votes.
Here, the Board purported to take a very significant “final action”—adopting a
resolution setting the fees charged for administering a number of regulatory programs
under the Porter-Cologne Water Quality Control Act (see § 13260, subds. (d), (f)(1); Cal.
1 Statutory references are to the Water Code unless otherwise indicated.
1
Code Regs., tit. 23, §§ 2200-2200.7)—with the affirmative votes of only two of the
Board’s statutory membership of five. Two is not a majority of five. I conclude that the
Board’s purported adoption of the resolution is therefore void, and consequently should
be set aside. Having failed to persuade my colleagues to adopt this approach, I
respectfully dissent from their conclusion that the two-vote passage of the resolution was
proper and valid.
The Problem
The Board consists of five members. (§ 175, subd. (a).) The resolution
challenged here was adopted when the Board had only three members, there being two
vacancies. Two of the three members voted for the resolution, while the third abstained.
The current disagreement is about section 183, which in its entirety provides:
“The board may hold any hearings and conduct any investigation in any part of the
state necessary to carry out the powers vested in it, and for such purposes has the powers
conferred upon heads of departments of the state by Article 2 (commencing with
Section 11180), Chapter 2, Part I, Division 3, Title 2 of the Government Code.
“Any hearing or investigation by the board may be conducted by any member
upon authorization of the board, and he shall have the powers granted to the board by this
section, but any final action of the board shall be taken by a majority of all the members
of the board, at a meeting duly called and held.
“All hearings by the board, or by any member thereof shall be open and public.”
The difficulty is with the language I have italicized. The trial court termed
section 183 “ambiguous.”2 If section 181 is considered with section 183, neither the
majority nor I dispute that a thorny ambiguity is indeed presented.
2 The trial court was clearly troubled on the point. It initially decided that the
Board’s action was invalid, but was persuaded to reverse this conclusion at oral argument
on the tentative ruling. The court reexamined the issue on the Board’s defective motion
for reconsideration, acknowledging “there are extremely awkward results on both sides of
this.” The court remained uneasy to the end, stating in its “Order Denying Petition For
Writ”: “Section 183 is ambiguous, and my tentative found much merit in [the
Association’s] position. But on reflection it seems that I need more than some ambiguity
2
Does “a majority of all the members of the board” mean just that, namely, that
every final action must have the recorded support of at least three members of the Board?
Or, is the statutory language satisfied by a majority of a simple quorum of the Board’s
entire statutorily-authorized membership? Certainty does not come from examining the
statutory language alone and at first glance the majority’s answer would not be an
unnatural interpretation—that is, if there is a quorum of a governing body, then a majority
of that quorum is empowered to transact business and make decisions for the entity. This
is the standard common law conclusion, not only in California (People v. Harrington
(1883) 63 Cal. 257, 259; County of Sonoma v. Superior Court (2009) 173 Cal. App. 4th
322, 346, fn. 11; Martin v. Ballenger (1938) 25 Cal. App. 2d 435, 437), but nationwide.
(FTC v. Flotill Products, Inc. (1967) 389 U.S. 179, 183; 4 McQuillin, The Law of
Municipal Corporations (3d ed. 2011) § 13:34, pp. 1182-1183, § 13:37, pp. 1191-1192;
2 Fletcher Cyclopedia of Corporations (2014 rev. ed.) § 425, p. 286.)
This majority-of-a-quorum rule is codified and made applicable to the Board by
the final sentence of section 181, which (also in its entirety) provides: “The board shall
maintain its headquarters in Sacramento and may establish branch offices in such parts of
the state as the board deems necessary. The board shall hold hearings at such times and
at such places as shall be determined by it. The Governor shall designate the time and
place for the first meeting of the board. Three members of the board shall constitute a
quorum for the purpose of transacting any business of the board.”
But there is an exception to the general common law rule. “If the law governing
the body provides that certain acts may be done only by a majority of the members . . . , it
is apparent that the acts specified may not be done legally by a bare majority of a
quorum, or of members present. An affirmative majority . . . is required. . . . In the
if I am to determine that the Legislature desired to trump settled procedures, especially as
the Board’s reading [of § 183] is plausible.” It is only fair to note that the trial court was
making its decision pretty much on the language of sections 181 and 183 alone, whereas
this court has had the time and luxury of consulting an array of materials pertaining to the
legislative histories of the two statutes.
3
absence of the required majority, the measure fails passage.” (4 McQuillin, The Law of
Municipal Corporations, supra, § 13:40, pp. 1199-1200 and authorities cited,
fns. omitted; see Annot., What Constitutes Requisite Majority of Members of Municipal
Council Voting on Issue (1955) 43 A.L.R. 2d 698, §§ 2-5, pp. 703-709; see also Streep v.
Sample (Fla. 1956) 84 So. 2d 586, 588; City of Haven v. Gregg (Kan. 1988) 766 P.2d 143,
147; Blood v. Beal (Me. 1905) 60 A. 427, 428-429; Scheipe v. Orlando (Pa. 1999)
739 A.2d 475, 477-478; State ex rel. Doyle v. Torrence (Tenn. 1958) 310 S.W.2d 425,
428.)
California has recognized this exception since the first years of statehood. (E.g.,
City of San Francisco v. Hazen (1855) 5 Cal. 169, 171-172; Grogan v. San Francisco
(1861) 18 Cal. 590, 607-608; Satterlee v. San Francisco (1863) 23 Cal. 314, 318;
Fisher v. Board of Police Commissioners (1965) 236 Cal. App. 2d 298, 301; Price v.
Tennant Community Services Dist. (1987) 194 Cal. App. 3d 491, 495-496.) A 1992
opinion by the Attorney General states the general principle and the exception, with a
notable economy of words: “In the absence of express contrary indication, a simple
majority of a collective body constitutes a quorum, and a majority of a quorum is
empowered to act for the body. [Citations.] [¶] Such express contrary indication has
been found in those statutes which refer specifically to the members of a collective body
as distinguished from the body itself. [Citations.]” (75 Ops.Cal.Atty.Gen. 47, 49 (1992),
fns. omitted.) Examples of this majoritarian principle can be found at all levels of
government.3 And it is surely not without relevance to the present context that this
3 The majoritarian exception governs the Legislature (Cal. Const., art. IV, § 8,
subd. (b) [“No bill may be passed unless, by rollcall vote . . . , a majority of the
membership of each house concurs”]; 65 Ops.Cal.Atty.Gen. 512, 515 (1982) [“majority”
requirement refers to “all members elected to each of the two houses of the Legislature”];
Cal. Const., art., 13, § 28, subd. (i) [“The Legislature, a majority of all the members
elected to each of the two houses voting in favor thereof, may by law change the rate or
rates of taxes herein imposed upon insurers.”]). It also governs boards of supervisors in
general law counties (Gov. Code, § 25005 [“No act of the board shall be valid or binding
unless a majority of all the members concur therein”]; Dry Creek Valley Assn., Inc. v.
Board of Supervisors (1977) 67 Cal. App. 3d 839, 842-845 [“This statute makes clear that
4
principle also governs a myriad of local agencies dealing with water, particularly
concerning decisions with significant financial consequences.4
while a majority of the board will constitute a quorum for the transaction of business, no
act of the board is valid unless a majority of the board, and not a majority of those
present and constituting a quorum, shall concur,” italics added]; 58 Ops.Cal.Atty.Gen.
706 (1975) [“Government Code section 25005 establishes an express exception to the
common law rule that the vote of a majority of a quorum is sufficient”]; County of
Sonoma v. Superior Court, supra, 173 Cal. App. 4th 322, 346, fn. 11 [same]) and charter
cities (Gov. Code, § 43120 [“The legislative body of any city operating under a charter
. . . may adopt an ordinance by a majority of all its members, changing the fiscal year of
the city”]); and the Judicial Council (Gov. Code, § 68508 [“No act of the Judicial Council
shall be valid unless concurred in by a majority of its members”]; Cal. Rules of Court,
Appen. G, Parliamentary Procedures for the Judicial Council of California, § IV [“To
take any substantive action, a majority of all voting members of the Judicial Council must
vote in favor of the action. (See Gov. Code, § 68508.) Because there are 21 voting
members on the council, . . . a vote on a substantive motion . . . requires 11 affirmative
votes to pass”]).
4 E.g., §§ 30525 [“No ordinance, resolution, or motion shall be passed or become
effective without the affirmative votes of at least a majority of the members of the
[county water district] board”], 81636 [“the affirmative vote of a majority of all voting
members of the [San Francisco Bay Area Regional Water System Financing Authority]
board is necessary and sufficient to carry any motion, resolution, or ordinance”];
Health & Saf. Code, §§ 4730.65, subd. (c) [“No action shall be taken [by the Orange
County Consolidated Sanitation District] unless a majority of all authorized members of
the board of directors is in attendance”], 4795 [county sanitation district may authorize
issuance of bonds “by resolution passed by a vote of a majority of all its members”]; Wat.
Code Appen. § 51-7 , pp. 59-60 [“no act of the [Santa Barbara County Water Agency’s
board of directors] shall be valid or binding unless a majority of all the members concur
therein”]; Wat. Code Appen. § 53-4, pp. 137-138 [“no act of the [Sonoma County Flood
Control and Water Conservation District’s board of directors] shall be valid or binding
unless a majority of all the members concur therein”]; Wat. Code Appen. § 93-33,
pp. 104 [“no act of the [Yuba-Bear Basin Authority Act’s board of directors] shall be
valid or binding unless a majority of all members concur therein”]; Wat. Code Appen.
§ 128-401, p. 809 [“Four affirmative votes [of the seven members of the Mono County
Tri-Valley Groundwater Management District’s board of directors] shall be required to
take an action]”]; Wat. Code Appen. § 136-108, p. 1030 [“the decision of a majority of
all the members of the board [of directors of the Antelope Valley Storm Water
Conservation and Flood Control District] shall be necessary to take any action”]; cf. Wat.
Code Appen . § 132-505, p. 894 [“no act of the board [of directors of the Odessa Water
5
The problem before us is not whether section 183 is such an exception to the
majority-of-a-quorum principle of section 181, because the majority concedes that it is.
The question that divides us is the extent of the exception. Like the trial court, we found
the point sufficiently troubling that we took a second look. Thus, we vacated submission
of the cause following oral argument, and directed the parties to file supplemental
briefing “discussing the application and interplay, if any, between Water Code
sections 181 and 183.”
Armed with that supplemental briefing, and independent research at this end, I
submit that the evolution and development of the two statutes is more nuanced than might
initially appear from the majority opinion.
The Legislative Histories of Section 181 and 183
I agree with the majority that section 181 and 183 should be construed together.
Not only are both statutes in the same article of the Water Code establishing the Board
and procedures for its operation (§§ 174-189), but they are the only statutes dealing with
voting by the Board. In addition, as will be seen, in large measure, sections 181 and 183
share a joint legislative heritage. Most importantly, it is only with a joint consideration
that the magnitude of the ambiguity appears. Reading them together is not only natural
but proper. (DeVita v. County of Napa (1995) 9 Cal. 4th 763, 778; Eel River Disposal and
Resource Recovery, Inc. v. Humboldt (2013) 221 Cal. App. 4th 209, 231-232; Main
San Gabriel Basin Watermaster v. State Water Resources Control Bd. (1993)
12 Cal. App. 4th 1371, 1379-1380 & fn. 5.)
Section 181 was adopted in 1956. Then numbered section 191, it provided: “The
board shall maintain its headquarters at Sacramento and shall hold meetings at such times
and at such places as shall be determined by it. The Governor shall designate the time
and place for the first meeting of the board. All meetings of the board shall be open and
public.” (Stats. 1956, 1st Ex. Sess., ch. 52, § 7.) The following year it was renumbered
District] shall be valid or binding unless a majority of those members present and voting
concur in the act” (italics added)].
6
without change as section 181 (Stats. 1957, ch. 1932, § 30), and then amended with the
addition of this as the final sentence: “Two members of the board shall constitute a
quorum for the purpose of transacting any business of the board.” (Stats. 1957, ch. 947,
§ 4.) In 1967, when the Board’s membership was expanded from three to five, the final
sentence was amended to reflect this increase (Stats. 1967, ch. 284, § 2.4 [amending
§ 175 to increase Board], § 5 [“Three members of the board shall constitute a quorum”]),
which is how it has remained to this day.
Section 183 was also adopted in 1956. Then numbered section 193, it provided:
“The board may hold hearings and conduct any investigations in any part of the State
necessary to carry out the powers vested in it, and for such purposes as the powers
conferred upon heads of departments of the State by Article 2 (commencing at
Section 11180), Chapter 2, Part 1, Division 3, Title 2 of the Government Code. [¶] Any
hearing or investigation by the board may be conducted by any member of the board
upon authorization of the board, and he shall have the powers granted to the board by this
section, but any final action of the board shall be taken by the board as a whole. [¶] All
hearings held by the board or by any member thereof shall be open and public.”
(Stats. 1956, 1st Ex. Sess., ch. 52, § 7.)
In 1957, section 193 was renumbered without change as section 183. (Stats. 1957,
ch. 1932, § 30.) That same year the “any final action of the board shall be taken by the
board as a whole” language was amended to “any final action of the board shall be taken
by a majority of members of the board at a meeting duly called and held.” (Stats. 1957,
ch. 1824, § 2.) In 1967, the Legislature added an exception to the hearings or
investigations that could be conducted by a single member. (Stats. 1967, ch. 284, § 5.2
[“Any hearing or investigation by the board, except pursuant to Division 7, . . . may be
conducted by any member of the board upon authorization of the board”].)
In 1969, the Legislature was considering Assembly Bills 412 and 413. Assembly
Bill 413—which was designated the California Water Quality Improvement Act of 1969,
and which included the Porter-Cologne Water Quality Control Act—was sponsored by
the Board, which described it as “incorporat[ing] the recommendations of the State Water
7
Resources Control Board Study Panel as adopted by the Board.” (State Wat. Resources
Control Bd., Enrolled Bill Rep. of Assem. Bill No 413 (1969-1970 Reg. Sess.) July 8,
1969, p. 1.) The measure was signed by Governor Reagan on July 14, 1969.
(Stats. 1969, ch. 482, p. 1046.) Assembly Bill 412 was signed five weeks later, on
August 22. Both bills were introduced by Carley Porter, chairman of the Assembly
Committee on Water. (Assembly Final History, Assem. Bills Nos. 412, 413 (1969-1970
Reg. Sess.), pp. 159-160.)
With respect to section 183, Assembly Bill 413 continued the “any final action of
the board shall be taken by a majority of the members of the board at a meeting duly
called and held” language. (Stats. 1969, ch. 482, § 2.) Assembly Bill 412 added the
word “all,” so that the statute in its current form reads: “any final action of the board
shall be taken by a majority of all the members of the board at a meeting duly called and
held” language. (Stats. 1969, ch. 800, § 1.)
On August 4, 1969, Assembly Bill 413 had already been signed by the Governor,
while Assembly Bill 412 was still pending in the Assembly, after having been amended
by the Senate as recommended by the Senate Committee on Water Resources and sent to
the Assembly two days earlier. (Assem. Final History, Assem. Bill No. 412 (1969-1970
Reg. Sess.), p. 159; 3 Sen. Journal (1969-1970 Reg. Sess.) pp. 5093-5094.) On August 4,
Senator Gordon Cologne, the chairman of that committee and the floor manager for both
bills in the Senate, successfully moved that a letter be printed in the Senate Journal. For
obvious reasons, Senator Cologne’s letter is too significant to risk paraphrase.
“Senate Committee on Water Resources
“Sacramento, July 29, 1969
“Hon. Ed Reinecke, President of the Senate
“Dear Mr. President: The Committee on Water Resources, having considered
Assembly Bill 412 and having reported it out with a favorable recommendation, submits
this report concerning Assembly Bill 412.
8
“This report contains comments to reflect the actions and intent of the Committee
in approving AB 412 and, additionally, the intent of the author’s amendments [to AB
412] adopted by the Senate on July 21, 1969.5
“It is intended that these comments be utilized to assist in the determination of
legislative intent.
“Respectfully submitted,
“GORDON COLOGNE, Chairman
“REPORT OF SENATE COMMITTEE ON WATER RESOURCES
“ON ASSEMBLY BILL 412
“In order to indicate more fully its intent on Assembly Bill No. 412, as amended
July 10, 1969, the Senate Committee on Water Resources makes the following report:
“The following comments to various sections of Assembly Bill 412 supplement
the comments of the Senate Committee on Water Resources made with respect to the
related subject matter in Assembly Bill No. 413 (Senate Journal, July 2, 1969,
5 Being author of the amendments was the third of Senator Cologne’s connections
to the version of section 183 we are considering.
Parenthetically, it should be noted that the apparent anomaly of a committee report
explaining a bill that had already been passed might seem a textbook example of post hoc
ergo propter hoc. However, in the days when California legislative histories were far
from the robust specimens of today, the practice of inserting committee reports into a
legislative journal was not unusual. The most pertinent example was that Assembly
Chairman Porter had a “Report of Assembly Committee on Water on Assembly Bill
No. 413” printed in the Assembly Journal after that bill had been passed by the
Assembly. (See 2 Assem. Journal (1969-1970 Reg. Sess.) p. 2677; see also People v.
Massie (1998) 19 Cal. 4th 550, 567 [“on May 28, 1935 . . . the Special Committee Report
was recorded in the Senate Journal”]; Garcia v. Industrial Accident Com. (1953)
41 Cal. 2d 689, 692 [“in the language of the report of the Senate Interim Committee on
Unemployment Insurance, Senate Journal, May 7, 1945, p. 126”]; Ne Casek v. City of Los
Angeles (1965) 233 Cal. App. 2d 131, 139 [“The comment of the Legislative Committee
inserted in the Senate Journal of April 24, 1963”], 141 [“The Legislative Committee
Comment, recorded in the Assembly Journal of June 15, 1963)”].)
In any event, the anomaly is only apparent because the report that Senator Cologne
had put into the Senate Journal had obviously been seen, at a minimum, by the Senate
committee which generated it, prior to Senate passage of Assembly Bill 412. The report,
as reproduced in the Senate Journal, is thus no different in dissemination and impact than
the committee reports that are now far more common.
9
pp. 3933-39346), and also reflect the intent of the Senate Committee on Water Resources
in approving Assembly Bill No. 412.
“WATER CODE PROVISIONS
“Section 183
“Comment. The present law is ambiguous as to whether final action by the state
board always requires a majority consisting of three members of the five-man state board,
or whether the majority required is only that of the ‘members of the board (present) at a
meeting duly called and held.’7 In the latter case three members could constitute a
quorum, and the vote of two members would constitute a majority of the members at the
meeting. An amendment has been made to this section to remove the ambiguity by
requiring that final board action shall always require the concurrence of a majority of all
the members of the board, not merely a majority of a quorum. . . .” (3 Sen. Journal.
(1969-1970 Reg. Sess.) p. 5154.)
The following day, August 5, the Assembly concurred in the Senate amendments,
and four days later the enrolled bill was sent to Governor Reagan for his signature.
(Assem. Final History, Assem. Bill No. 412 (1969-1970 Reg. Sess.), p. 159; 3 Assem.
Journal (1969-1970 Reg. Sess.) pp. 7496-7502; 3 Sen. Journal (1969-1970 Reg. Sess.)
pp. 5093-5094.)
My Conclusion
Like the trial court, I am willing to concede that the unadorned language of
section 183 is “ambiguous” in the sense that it alone does not provide a conclusive
answer. (See fn. 2, ante.) The majority does not expressly concede that section 183 is
ambiguous, although it does cite the governing canon of statutory construction justifying
6 The cited pages in the Senate employ the same letter format to set out the
“Report of the Senate Committee on Water Resources on Assembly Bill 413.” There are
additional “comments” to various provisions, but no mention of either section 181 or
section 183. (2 Sen. Journal (1969-1970 Reg. Sess.) pp. 3933-3934.)
7 The source of the ambiguity is not identified, but it may trace to when
section 183 was amended in 1957, and the Legislative Counsel described the measure as
amending section 183 “to require final action of State Water Rights Board [the
predecessor to the State Water Quality Resources Board] to be taken by a majority of
members at [a] meeting duly called and held, rather than by [the] board as a whole.”
(Legis. Counsel’s Dig., Sen. Bill No 2199 (1957 Reg. Sess.) Summary Digest, p. 128.)
10
resort to legislative history.8 The majority partially parses the middle sentence of section
183, focusing on the words “but” and “any” (maj. opn., pp. 8-9), but completely ignoring
the word “all.” The majority concludes: “the express language of section 183 indicates
that this statute applies only to those situations where the Board has delegated authority to
one member to conduct a hearing or meeting. . . . [B]ecause a quorum participated in the
hearing pertinent to this case, section 183 does not apply.” (Maj. opn., pp. 9-10.) As for
8 I admit to being puzzled by the majority’s invocation of the principle that
statutes in derogation of the common law are to be strictly construed. (See maj. opn., pp.
7, 13.) California repudiated this rule when it undertook the systematic codification of its
statutes. (Civ. Code, § 4 [“The rule of the common law, that statutes in derogation
thereof are to be strictly construed, has no application to this code. The code establishes
the law of this state respecting the subjects to which it relates, and its provisions are to be
liberally construed with a view to effect its objects and promote justice.”]; Code Civ.
Proc., § 4 [same]; Evid. Code, § 2 [same]; Pen. Code, § 4 [“The rule of the common law,
that penal statutes in derogation thereof are to be strictly construed, has no application to
this Code.”].) My impression is that our Supreme Court has been generally moving in
this direction for some time, particularly as the scope and frequency of legislative output
has mushroomed. (See, e.g., Estate of Parrott (1926) 199 Cal. 107, 112-113 [“[T]here is
no room in this case for the play of the strict construction rule. . . . The maxims of
jurisprudence that ‘interpretation must be reasonable’ (sec. 3542, Civ. Code) and that a
statute is to be ‘liberally construed with a view to effect its object and to promote justice’
(sec. 4, Civ. Code) are generally applicable and must be given effect. . . . No
construction should be given a statute which would make its application impracticable,
unfair, or unreasonable.”]; Raynor v. City of Arcata (1938) 11 Cal. 2d 113, 121 [“the rule
that statutes . . . in derogation of the common law are to be strictly construed . . . does not
confer upon courts the power to nullify legislation where the statute itself evinces a clear
intention on the part of the lawmakers to depart from the common law rule”]; Baugh v.
Rogers (1944) 24 Cal. 2d 200, 211 [“the asserted rule of strict construction does not
authorize us to thwart, by narrow and strained interpretation, the palpable intent of the
Legislature”]; Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804, 815 [Civ. Code, § 4 means
“ ‘If a provision of the code is plain and unambiguous, it is the duty of the court to
enforce it as it is written.’ ”]; Barrett v. Rosenthal (2006) 40 Cal. 4th 33, 46 [“The policy
of strictly construing statutes in derogation of the common law does not require a literal
interpretation conflicting with the obvious legislative intent.”]; Franchise Tax Bd. v.
Superior Court (2011) 51 Cal. 4th 1006, 1016 [“the statute in derogation of the common
law rule was ‘befitting to this more enlightened age.’ ”].)
Similarly mystifying is the majority’s citation of rule of deference to a
longstanding administrative interpretation of a statute (maj. opn., p. 11), when the Board
has drawn our attention to no such interpretation.
11
the 1969 legislative history, the majority misidentifies the crucial item as “a letter . . .
from Senator Gordon Cologne,” and then dismisses it as merely a “comment” that
“simply clarified that section 183 requires a majority vote with respect to final action on
any matter heard or investigated by a single member of the Board.” There is no mention
of section 181 and thus no indication of intent to “do away with the general rule set forth
in section 181.” (Maj. opn., pp. 12-13.)
The majority appears willing to read the second sentence of section 183 as stating
an exception to the majority-of-a-quorum rule of section 181. So, in instances where if
one member of the Board conducts a “hearing or investigation . . . upon authorization of
the board,” the majority seems to concede that the language “any final action of the board
shall be taken by a majority of all the members of the board” means that decision must
have the votes of at least three members of the Board. But every other “final action of
the board” need only command two votes of a quorum. With this construction I cannot
agree.
I am perfectly willing to admit that certainly section 181 and, to a lesser extent,
section 183, each began their respective existences in 1956 addressing more than one
subject. Amendments were thereafter made to both in 1957 and 1967. In a perfect
world, the Legislature, intending to make the task of the judiciary easier, might have
made more explicit what is the interplay between sections 181 and 183. In fact, I believe
the Legislature did just that, albeit hardly in a linear or an unambiguous fashion.
What the majority dismisses as merely “a letter . . . from Senator Gordon
Cologne” is not what we are considering—and not what is at issue. The actual document
from the senator is simply a cover letter for the Report of the Senate Committee on Water
Resources. It was that report, not the senator’s transmission letter, which sets out the
intent of the amending author and the Committee in amending section 183. The report
conveyed not just the view of Chairman Cologne, but the view of the entire Committee.
It was the Committee’s report that was, with Senator Cologne’s cover letter, ordered
printed in the Senate Journal.
12
Certainly, Senator Cologne did state in his cover letter that “It is intended that
these comments be utilized to assist in the determination of legislative intent,” but this
hardly makes it a purely personal opinion of a single individual. The senator was acting
in his capacity as chairman of the committee whose report he was transmitting to the full
Senate, the report he was securing permission from the entire Senate to be printed in its
official journal. True, Senator Cologne’s letter recites that the report “contains comments
to reflect the actions and intent of the Committee . . . and additionally the intent of the
author’s [ i.e., Senator Cologne’s] amendments.” But the actual report of the Committee
also makes the same statement: that the purpose of that report by the Committee is “to
indicate more fully its [the Committee’s] intent on Assembly Bill No. 412. So, it is the
“comment” of the Committee, in the Committee’s report, explaining what it, the
Committee, meant by its proposed amendment of section 183, that is before this court.
The Senate Journal is a source accepted by this court and others for ascertaining
legislative intent. (Garcia v. Industrial Accident Com., supra, 41 Cal. 2d 689, 692; City
and County of San Francisco v. Evankovich (1977) 69 Cal. App. 3d 41, 52; Belli v.
Roberts Bros. Furs (1966) 240 Cal. App. 2d 284, 287.) Its status is elevated still higher
when it expresses a legislative committee report, which is the preeminent coin of the
realm in determining legislative intent. (E.g., People v. Cruz (1996) 13 Cal. 4th 764,
774-775, fn. 5; accord, Benson v. Workers’ Compensation Appeals Bd. (2009)
170 Cal. App. 4th 1535, 1554, fn. 16; see fn. 5, ante.) Thus, we have granted the
Association’s request to take judicial notice of the letter and the report. (In re J.W.
(2002) 29 Cal. 4th 200, 211; Kaufman & Broad Communities, Inc. v. Performance
Plastering, Inc. (2005) 133 Cal. App. 4th 26, 32.)
Unlike the majority, I cannot disregard the “comment” of the Senate Committee
on Water Resources concerning the meaning of the language of section 183 we are here
considering. Unlike the majority, I cannot ignore the Committee’s comment in the belief
that it has no bearing on this issue before us in that it does not address the interplay
between sections 181 and 183, nor suggest that the amendment to section 183 overrules
13
or in any way modifies section 181. On the contrary, I think this was exactly what the
Committee did address.
It is true that the comment does not make express reference to section 181.
However, I submit that when the Committee spoke of an instance where “three members
could constitute a quorum, and the vote of two members would constitute a majority,” the
Committee obviously had section 181 in mind. In all the statutes governing the Board’s
operations, the word “quorum” appears only in section 181, so no other statute qualifies.
By putting its comment under the heading “Water Code . . . Section 183,” I submit that
the Committee was indeed addressing the interplay between sections 181 and 183.
And how did the Committee address that interplay? Let us examine each of the
three sentences in the Committee’s comment.
(1) “The present law is ambiguous as to whether final action by the state board
always requires a majority consisting of three members of the five-man state board, or
whether the majority required is only that of the ‘members of the board (present) at a
meeting duly called and held.” This litigation testifies to the continuing existence of this
ambiguity.
(2) “In the latter case three members could constitute a quorum, and the vote of
two members would constitute a majority of the members at the meeting.” This is an
obvious reference to section 181.
(3) “An amendment has been made to this section [i.e., section 183] to remove the
ambiguity by requiring that final board action shall always require the concurrence of a
majority of all the members of the board, not merely a majority of a quorum.” By
intending “to remove the ambiguity,” the Committee was certainly addressing the
interplay between sections 181 and 183 that was the source of that ambiguity. The
Committee’s solution was the 1969 amendment to section 183, to specify “that final
board action shall always require the concurrence of a majority of all the members of the
board, not merely a majority of a quorum.” The last seven words again demonstrate that
the Committee had section 181 in mind.
14
The Committee’s report demands attention. Unlike the majority, I believe the
Committee’s comment is not only relevant, and not only germane, but that it is virtually
decisive. It directly addressed the meaning of the language of section 183 amended in
1969 and now being contested. It constitutes the last and most recent expression of the
legislative purpose behind that language. It shows not only that the Legislature was
aware of a lurking ambiguity in section 183 as it then read concerning the
majority-of-a-quorum principle of section 181, but it also establishes beyond question
that the Legislature unanimously meant to displace that principle by inserting the word
“all” so that section 183 would state that “any final action of the board shall be taken by a
majority of all the members of the board.” Where “final action “ was concerned,
section 183 was meant to trump section 181.
Unlike the majority, I cannot confine section 183’s “majority of all the members
of the board” language to instances where there has been a hearing or investigation
conducted by one member of the Board. Viewed in splendid isolation, such a reading
might not be illogical as a matter of mere words. However, such a reading must be
rejected because it makes almost no sense in the real world—and was not what the
Legislature intended. (Burris v. Superior Court (2005) 34 Cal. 4th 1012, 1017-1018;
People v. Nelson (2011) 200 Cal. App. 4th 1083, 1098; People v. Wilen (2008)
165 Cal. App. 4th 270, 285.) The present case will illustrate. Suppose that a sole member
of the Board had conducted the hearings on modifying the waste discharge fees.
According to the majority, formal adoption of the new fees would require three votes,
that is, an absolute majority of the full Board. But if the hearings had been held by the
full Board, it would—as it did here—take only two affirmative votes of the bare quorum
of three Board members present. Where is the logic in that?
The majority correctly notes that the Board’s members are statutorily intended to
broaden its outlook. Section 175 directs that four of the Board’s five members shall
“represent diverse specialties.” (Maj. opn., p. 9.) But the utility of this diversity seems to
be nullified with the majority-of-a-quorum rule. Why would the Legislature establish a
procedure system that does not take the fullest advantage of all that talent?
15
The difficulty comes upon consideration of the 1969 amendment directing that
“any final action of the board shall be taken by a majority of all the members of the
board.” The disturbing words are “any final action by the board,” conjoined with the
Senate Committee’s comment that the amendment was intended to “[require] that final
board action shall always require the concurrence of a majority of all the members of the
board, not merely a majority of a quorum.” (Italics added.)
The meaning of section 183 is not to be gleaned solely from its language alone.
The statutory scope and purpose is to be discerned from an appreciation of the entirety of
the statutory scheme, of which section 183 is but a single part. We have noted: “ ‘ “[T]o
seek the meaning of a statute is not simply to look up dictionary definitions and then
stitch together the results. Rather, it is to discern the sense of the statute and therefore its
words, in the legal and broader culture . . . .” ’ ” (People v. Wilen, supra,
165 Cal. App. 4th 270, 285.) “The rules of grammar . . . are but tools, ‘guides to help
courts determine likely legislative intent. [Citations.] And that intent is critical. Those
who write statutes seek to solve human problems. Fidelity to their aims requires us to
approach an interpretive problem not as if it were a purely logical game, like a Rubik’s
Cube, but as an effort to divine the human intent that underlies the statute.’ ” (Burris v.
Superior Court, supra, 34 Cal. 4th 1012, 1017-1018.)
Because of the ambiguity from the language of section 183, by itself and when
read in conjunction with section 181, it is appropriate to consult the sparse legislative
history for assistance, particularly “extrinsic evidence bearing upon the meaning of [the]
ambiguous phrase.” (Eel River Disposal and Resource Recovery, Inc. v. Humboldt,
supra, 221 Cal. App. 4th 209, 224.) The search is for the construction that most closely
effectuates the Legislature’s intended purpose and sound public policy. (Catlin v.
Superior Court (2011) 51 Cal. 4th 300, 304; Mays v. City of Los Angeles (2008)
43 Cal. 4th 313, 321.) This court has repeatedly made it clear that fidelity to plain
language is not followed to the point of sanctioning absurdity. (People v. Nelson, supra,
200 Cal. App. 4th 1083, 1097-1098; Brown v. Valverde (2010) 183 Cal. App. 4th 1531,
16
1546; MacIsaac v. Waste Management Collection & Recycling, Inc. (2005)
134 Cal. App. 4th 1076, 1082-1083.)
It is true that section 183 does not use the word “vote” (for that matter, neither
does section 181), or expressly tie it to the existence of a “final decision.” The omissions
are not consequential, because the nexus is implicit in the concept of “a majority of all
the members of the board ” taking “final action.” How else is “final action” to be “taken”
if not by voting? This is apparent from the Board’s own procedures.9 Representing the
Board, the Attorney General appears to equate the “opportunity to participate” with
actual voting.10 I am not sure whether the majority agrees with this approach
9 With respect to the uncontested items calendar at Board meetings, the Board’s
rules of practice and procedure (Cal. Code Regs., tit. 23, §§ 647-647.5) direct: “After an
opportunity for requests to remove any matters from the uncontested items calendar has
been given, a vote shall be taken on the uncontested items calendar. Upon a vote to
approve the uncontested items calendar, each matter on the uncontested items calendar
shall be approved and shall have the same force and effect as it would have if approved
as a separate agenda item.” (Id., § 647.2(f)(4).) The clear implication is that separate
agenda items are approved by a vote.
10 In its original and its supplemental briefs, the Board has treated a 1956 opinion
by Attorney General Edmund G. Brown as imbuing the word “participate” with a special
meaning. The predecessor of the Board queried the Attorney General: “Does
section 193 of the Water Code, providing that any final action of the State Water Rights
Board ‘shall be taken by the board as a whole’ require that all three members participate
in each final action, or may final action be taken by two of the three members?” The
Attorney General’s conclusion was that “the action of two of the three members may
constitute the final action of the board.” The underlying reasoning was as follows:
“By section 12 of the Civil Code and section 15 of the Code of Civil Procedure,
the general rule is established that ‘Words giving a joint authority to three or more public
officers or other persons are construed as giving such authority to a majority of them,
unless it is otherwise expressed in the Act giving the authority.’ Can it be said that ‘it is
otherwise expressed’ and the general rule made inapplicable by virtue of the phrase ‘shall
be taken by the board as a whole’? We think not. The phrase, when viewed in its
context, simply constitutes a proviso to the clause preceding it and authorizing the board
to delegate all its powers to any one of its members. The phrase constitutes a command
only that the board not delegate to one member its final decision making power.
Consequently, the words ‘as a whole’ may not properly be interpreted as specifically
requiring unanimous decisions—i.e., that all three members in each case actually
participate in the taking of any ‘final action’. Rather, they contemplate merely that all
17
(see maj. opn., p. 10 [“[B]ecause a quorum participated in the hearing pertinent to this
case, section 183 does not apply”]), but I do not. Mere presence or talking is certainly
not the same as voting. (See City of San Francisco v. Hazen, supra, 5 Cal. 169, 172
[rejecting the argument that statutory language requiring acts be “ ‘passed by a majority’
. . . do not necessarily imply a consent or acquiescence, but only a presence or
participation. . . .”].) And voting is no arid formality.
The Board has a vast and significant jurisdiction. Pursuant to Porter-Cologne, it is
vested with the authority to “formulate and adopt state policy for water quality control.”
(§ 13140.) It is charged with “the orderly and efficient administration of the . . .
adjudicatory and regulatory functions of the state in the field of water resources,” (§ 174;
see § 275 [Board to prevent waste, unreasonable use, and unreasonable diversion “of
water in this state”]) namely, “ ‘the water rights and the water pollution and water quality
functions of state government . . . and availability of unappropriated water.’ ” (State
Water Resources Control Bd. Cases (2006) 136 Cal. App. 4th 674, 696.) The Board
promulgates regulations (§ 1058), adopts schedules of fees (§§ 1525, subd. (a), 13260,
subd. (f)(1)), imposes cease and desist orders (§ 13301), issues permits (see Attwater &
Markle, Overview of California Water Rights and Water Quality Law (1988) 19 Pac. L.J.
957, 997), and levies civil penalties (§ 13308). Such decisions would seem to require
what section 183 terms a “final action.”
In exercising the power delegated by the Legislature to adopt the schedule of fees
now being challenged by the Association, the Board was exercising quasi-legislative
power. (See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal. 4th 1,
10; California Building Industry Assn. v. San Joaquin Valley Air Pollution Control Dist.
(2009) 178 Cal. App. 4th 120, 135-137; City Council v. Superior Court (1960)
members of the board, in each case, shall have full opportunity to participate in any final
decision (City of Nevada v. Slemmons (Iowa 1953) 59 N.W.2d 793, 795; Duessel v.
Proch (Conn. 1905), 62 A. 152, 154). Accordingly, we are of the opinion that final
actions of the State Water Rights Board may be taken by a majority of its members.”
(28 Ops.Cal.Atty.Gen., 259, 260 (1956).)
18
179 Cal. App. 2d 389, 393.) The exercise of that power is where the needs of legitimacy
and accountability are most acute. “There is a strong public policy ‘that members of
public legislative bodies take a position, and vote on issues brought before them . . . .’ ”
(Kunec v. Brea Redevelopment Agency (1997) 55 Cal. App. 4th 511, 520, quoting Dry
Creek Valley Assn., Inc. v. Board of Supervisors, supra, 67 Cal. App. 3d 839, 844; accord,
City of King City v. Community Bank of Central California (2005) 131 Cal. App. 4th 913,
940-941, fn. 18; see 4 McQuillin, The Law of Municipal Corporations, supra, § 13:64,
p. 1253 [“Statutory requirements for the passage of ordinances and resolutions . . . are
. . .for the protection of the public”].) “The common law and statutory rules requiring
legislative bodies act only by majority rule reflect ‘the deeply embedded principle of
majority rule in a democratic society . . . .’ ” and are essential “ ‘in our system for giving
policies legal effect and legitimacy.’ ” (County of Sonoma v. Superior Court, supra,
173 Cal. App. 4th 322, 346, fn. omitted.)
The Board’s reading of section 183 as requiring, or permitting, only nonvoting
“participation” (see fn.10 and accompanying text, ante) is entirely artificial. (See City of
San Francisco v. Hazen, supra, 5 Cal. 169, 172.) If the middle paragraph of section 183,
with its “any final action of the board shall be taken by a majority of all the members of
the board” language, is confined to the Board’s consideration of a hearing or
investigation conducted by a single member, the connection between voting and a “final
action” by the Board would be severed in all other instances where the Board was
considering final action on a matter. Such a restriction could have the consequence of
greatly reducing the number of situations where the Board’s members have to announce
their votes at a meeting that is both open to the public (§ 183) and recorded for public
review. (Cal. Code Regs., tit. 23, § 647.4.)
This case provides a dramatic illustration of why such a result should not be
countenanced. Two members of the Board enacted what the majority acknowledges
might, in different circumstances, have been proved to be an invalid tax of many millions
of dollars. (Maj. opn., pp. 16-22.) It would be hard to imagine an issue where the
demand for public accountability is greater. Enacting a tax with a minority vote strikes
19
me as an absurd and invidious result, particularly in this age of Proposition 26, as it
would give the Board a power denied to local water agencies. And it is directly contrary
to what the Legislature intended with the 1969 amendment of section 183—“that final
board action shall always require the concurrence of a majority of all the members of the
board.” (Italics added.)
Acceding to the Board’s reading of section 183 would also oblige us to disregard
“a cardinal rule of statutory construction that the language of a statute should be
construed to effect, rather than defeat, its evident object and purpose.” (East Bay
Garbage Co. v. Washington Township Sanitation Co. (1959) 52 Cal. 2d 708, 713.)
Finally, “ ‘[t]hat construction of a statute . . . is favored which would defeat subterfuges,
expediencies, or evasions employed to continue the mischief sought to be remedied , or to
defeat compliance with its terms, or any attempt to accomplish by indirection what the
statute forbids.’ ” (Freedland v. Greco (1955) 45 Cal. 2d 462, 468.) Given what we now
know about the 1969 Senate Water Resources Committee report of what was intended, I
submit that section 183 has a far broader reach than the majority’s conception.
Conversely, insofar as a “final action of the board” is involved, I believe that the
majority-of-a-quorum principle of section 181 should receive a far more modest scope.
Just what constitutes “any final action” by the Board is to be given a broad
application. (See California Highway Patrol v. Superior Court (2008) 158 Cal. App. 4th
726, 736 and authorities cited.) We are not at this time called upon to decide how a
decision by the Board is to be categorized as a “final action,” but I am confident this one
does.11 It easily includes the quasi-legislative adoption of a schedule of increased fees for
the Storm Water Management Program, which section 183 requires to “be taken by a
majority of all the members of the Board.” That majority would be three. (See County of
11 There is obviously some distinction between what constitutes “any business of
the board” that section 181 authorizes the majority of a quorum to “transact” and the
apparently weightier “final action of the board” which section 183 commands “shall be
taken by a majority of all of the members of the board.” Determining the contours of that
distinction may be deferred to another day.
20
Sonoma v. Superior Court, supra, 173 Cal. App. 4th 322, 347 [“Because ‘three members
must “concur” in order to act’ . . . , the votes of . . . two members of a governing body
simply cannot be construed as an act of the governing body itself”]; Price v. Tennant
Community Services Dist., supra, 194 Cal. App. 3d 491, 495 [“a majority of the five
member board of directors . . . is three”]; 66 Ops.Cal.Atty.Gen. 336, 337 (1983) [“Since a
board has five members . . . , three members must ‘concur’ in order to act. . . . A vote of
two to one thus would be insufficient to bind the board.”].) The final action here had
only two.
My vote is to reverse the judgment, and remand the cause to the trial court with
directions to issue a writ of mandate directing the Board to set aside its purported
approval of Resolution 2011-0042.12 Because the majority votes otherwise, I respectfully
dissent.
_____________________________
Richman, J.
12 In light of this conclusion, I express no opinion on the other issues addressed in
the majority opinion.
21