Opinion
Review Granted May 23, 1991.
Previously published at 228 Cal.App.3d 1188, 235 Cal.App.3d 185
John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Sr. Asst. Atty. Gen., Cathy A. Neff, Ramon M. de la Guardia, Deputy Atty. Gens., for petitioners.
No appearance for Respondent.
Pillsbury, Madison & Sutro and Robyn A. Millenacker, San Jose, for real party in interest.
BLEASE, Associate Justice.
In this matter we decide that Government Code section 6259, subdivision (c) , which prohibits review by appeal of cases arising under the California Public Records Act (§§ 6250 et seq.), conflicts with and is thereby invalidated by the express grant of appellate jurisdiction in article VI, section 11, of the California Constitution, which provides: "[C]ourts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute." Accordingly, we shall deny the petition for a writ of review (certiorari) which is sanctioned by the offending provisions as the exclusive means of appellate review.
All unspecified statutory references are to the Government Code.
PROCEDURAL FACTS
The State Board of Control (Board) seeks review by writ of review of an order directing it to disclose records containing the details of earthquake claims settlements under Government Code sections 997-997.6. The Public Records Act (the Act) creates a statutory right of public access to information concerning the conduct of the People's business (§ 6250) and defines the public records subject to disclosure (§§ 6253 et seq.). To enforce the right the Public Records Act authorizes a proceeding in the superior court to compel the disclosure of records which it makes public. (§ 6258.)
However, review by appeal of a final order resolving such a proceeding is denied. Section 6259 prohibits review by appeal of "an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure" by the stratagem of declaring that such an order "is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken...." Instead, it provides for discretionary appellate review "by petition to the appellate court for the issuance of the extraordinary writ of review as defined in Section 1067 of the Code of Civil Procedure."
Section 6259, subdivision (c), as applicable here, provided: "In an action filed on or after January 1, 1985, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of the extraordinary writ of review as defined in Section 1067 of the Code of Civil Procedure." (Stats.1984, ch. 802.)
Since the review sought here turns on the categorical application of section 6259, subdivision (c), to all cases arising under the Public Records Act, a consideration of its constitutional validity requires no separate statement of facts detailing the controversy below. The San Jose Mercury News (Mercury News), the real party in interest, opposes issuance of the writ of review on the ground the Board's claim does not rise to the level of jurisdictional error, the standard of review of a writ of review. We requested briefing on the issue whether section 6259, subdivision (c), contravenes article VI, section 11 of the California Constitution. The Attorney General, on behalf of the Board, submits that section 6259, subdivision (c), is unconstitutional. The Mercury News takes the opposing position.
The first sentence of subdivision (c) was added to section 6259 by amendment in 1984. (Stats.1984, ch. 802, § 1.) In declaring that an order of the superior court, which resolves the ultimate issue in a Public Records Act case, is not a final judgment or order subject to Code of Civil Procedure section 904.1, section 6259, subdivision (c), prohibits review by appeal in all cases arising under the Public Records Act. This prohibition conflicts with article VI, section 11 and is unconstitutional.
The meaning of a statute is tendered on the occasion and in the context of a claimed application. Since the application of section 6259, subdivision (c), to the circumstances of this case is undisputed there is no ambiguity which might justify consideration of matters extrinsic to its language. Further, anecdotal information concerning the origin of the amendment is contained in Freedom Newspapers, Inc. v. Superior Court (1986) 186 Cal.App.3d 1102, 1108, 231 Cal.Rptr. 189.
As we will show, article VI, section 11 confers appellate jurisdiction upon the courts of appeal over every "cause" as to which the "superior courts have original jurisdiction." In this context "cause" refers to the kind of case to which appellate jurisdiction extends. Section 11 does not tell us what constitutes a "cause" nor does it govern the procedure by which the right of appeal of a particular cause must be asserted. As we shall explain, for reasons of the historical usage of "cause" in the provisions of the constitution concerning appellate jurisdiction, the term does not extend to every kind of case, as for example habeas corpus (See Matter of Zany (1913) 164 Cal. 724, 729, 130 P. 710). However, a proceeding for disclosure of information under the Public Records Act does not come within such an historical exception and is the kind of case to which "cause" refers.
For these reasons the writ of review does not lie to review a final order in a case arising under the Public Records Act and we therefore shall deny the petition for the writ. The petitioners' remedy is by appeal.
DISCUSSION
I
It is sometimes said without qualification that there is no constitutional right to an appeal. (See, e.g., Trede v. Superior Court (1943) 21 Cal.2d 630, 634, 134 P.2d 745.) The generalization is unobjectionable insofar as it addresses a claim grounded upon notions of due process or upon the bare establishment by constitution of an appellate court. (See 4 Am.Jur.2d, Appeal and Error, § 1, p. 532.) The generalization does not hold where appellate jurisdiction is conferred upon the appellate courts by the California Constitution. That is manifestly the case under article VI, section 11, which confers appellate jurisdiction upon the courts of appeal over causes as to which "superior courts have original jurisdiction" and distinguishes such cases from "other causes prescribed by statute." (Emphasis added.)
From its inception the California Constitution has distinguished between appellate jurisdiction directly conferred upon the appellate courts and appellate jurisdiction conferred by statute. Thus the 1849 constitution provided:
"The Supreme Court shall have appellate jurisdiction in all cases in equity, except such as arise in Justices' Courts; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; also, in cases of forcible entry and detainer, and in proceedings in insolvency, and in actions to prevent or abate a nuisance, and in all such probate matters as may be provided by law; also, in all criminal cases prosecuted by indictment, or information in a Court of Record on questions of law alone. The Court shall also have power to issue writs of mandamus, certiorari, prohibition and habeas corpus, and all other writs necessary or proper to the complete exercise of its appellate jurisdiction." (Constitution of 1849, art. VI, § 4; this text was retained in the revised Constitution of 1879.)
This provision was viewed early on as an express constitutional grant of appellate jurisdiction. In Haight v. Gay (1857) 8 Cal. 297, 300, the Supreme Court considered the question whether a writ of error, the precursor of the modern form of appeal, would lie where a party failed to appeal a cause from which an appeal was provided by statute. The court answered as follows.
"The appellate power of the Supreme Court is given by the fourth section of the sixth article of the Constitution, which expressly empowers this Court to issue all writs and process necessary to the exercise of its appellate jurisdiction. The Legislature, therefore, can pass no act impairing the exercise of this appellate power. [p] But while the Legislature cannot substantially impair the right of appeal, it is certainly competent to regulate the mere mode in which this right must be asserted. The Constitution only empowers this Court to issue such writs and process as may be necessary to the exercise of its appellate jurisdiction; if this appellate jurisdiction can be exercised without this process, then it cannot be necessary, and should not be issued.
"...
"[p] Our conclusion is, that in all cases where an appeal is given by the statute, that remedy is exclusive and must be pursued, and that a writ of error will only lie in cases where no appeal is given by the act." (Haight v. Gay, supra, 8 Cal. at p. 300; also see, e.g., Pacific Telephone and Telegraph Co. v. Eshleman (1913) 166 Cal. 640, 690-691 [137 p. 1119], conc. opn. of Sloss, J., collecting numerous early cases.)
The Newspaper cites to the concurring opinion of Justice Wallace in Appeal of S.O. Houghton (1871) 42 Cal. 35, for an early expression of a contrary view. The case concerned the validity of a statute claimed to bar an appeal in a certain type of case. Justice Wallace was of the minority view that even if a case were within the constitutional appellate jurisdiction of the Supreme Court it would not be appealable unless enabled by a statute or rule of court. (Id. at pp. 58-60, conc. opn. of Wallace, J.) Each of the five justices issued an opinion and no one else shared the view of Justice Wallace. The lead opinion of Justice Crockett, opined that if the case were within the Constitution's list, the statute barring appeal would be unconstitutional. (Id. at pp. 51-57, opn. of Crockett, J.) On this point Justice Crockett was joined by two dissenting justices, both of whom expressed the view that the matter was within the appellate jurisdiction list. (Id. at pp. 69-70, dis. opn. of Rhodes, C.J., who would have held the statute void; Id. at p. 72, dis. opn. of Sprague, J., who would have read the statute to permit an appeal.) Justice Wallace did not explain why the court was constrained to act by rule rather than simply by entertaining the appeal. His view that constitutional jurisdiction was insufficient without an implementing rule or statute was explicitly repudiated by the unanimous Supreme Court in People v. Jordan (1884) 65 Cal. 644, 649, 4 P. 683.
The Supreme Court, however, distinguished those cases not within the constitution's list of cases over which the court was granted appellate jurisdiction. For example, in Tyler v. Connolly (1884) 65 Cal. 28, 30, 2 P. 414, the Supreme Court held there could be no appeal from a judgment of contempt because contempt was not within that list and no appeal was provided by statute. "Conceding that the legislature may confer appellate jurisdiction on this court in cases not provided for in the Constitution, we have been referred to no statute giving the right to appeal from a judgment in a contempt case. On the contrary, in our judgment, such right is withheld by section 1222 of the Code of Civil Procedure. That section is as follows: 'The judgment and orders of the court or judge made in cases of contempt are final and conclusive.' " (Ibid.)
Tyler is the font for cases which deny appeals from judgments of contempt. This is the source of the unqualified statement in Gale v. Tuolumne County Water Co. (1914) 169 Cal. 46, 50, 145 P. 532, that "[n]ecessarily a judgment, which by the code is made final and conclusive, is not appealable."
In 1904 the constitution was amended and the district courts of appeal were established. The provision governing appellate jurisdiction of the California Supreme Court was for the most part retained and it was given discretionary appellate jurisdiction over all matters coming before the district courts of appeal. These courts were given limited appellate jurisdiction.
The list was modified as follows from the original provision quoted in the text, ante, page 415. Jurisdiction was qualified by the condition "on appeal from the Superior Courts...." The amount in controversy provision was raised to two thousand dollars. The phrase "also, in cases of forcible entry and detainer, and in proceedings in insolvency, and in actions to prevent or abate a nuisance ..." was deleted. Criminal cases were limited to those where a judgment of death had been rendered. (Cal. Const. of 1879, as amended 1904, art. VI, § 4.)
"The District Courts of Appeal shall have appellate jurisdiction on appeal from the Superior Courts in all cases at law in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars, and does not amount to two thousand dollars; also, in all cases of forcible and unlawful entry and detainer (except such as arise in Justices' Courts), in proceedings in insolvency, and in actions to prevent or abate a nuisance; in proceedings of mandamus, certiorari, and prohibition, usurpation of office, contesting elections and eminent domain, and in such other special proceedings as may be provided by law (excepting cases in which appellate jurisdiction is given to the Supreme Court); also, on questions of law alone, in all criminal cases prosecuted by indictment or information in a court of record, excepting criminal cases where judgment of death has been rendered. The said courts shall also have appellate jurisdiction in all cases, matters, and proceedings pending before the Supreme Court which shall be ordered by the Supreme Court to be transferred to a District Court of Appeal for hearing and decision." (Constitution of 1879, art. 6, § 4, as amended in 1904.)
The Supreme Court provision was at issue in In re Sutter-Butte By-Pass Assessment (1923) 190 Cal. 532, 213 P. 974. The Legislature authorized the issuance and sale of drainage district bonds to be retired by assessment on the property benefited. The authorizing statute provided for a judicial proceedingto validate the assessment before three judges of the superior court but provided that no appeal could be had from their judgment. (Id. at p. 535, 213 P. 974.) Nonetheless an appeal was taken and the Supreme Court was asked to dismiss it. It declined to do so, reasoning as follows.
"[I]t is the settled rule of law that if the right of appeal is constitutionally granted in any given case such right cannot be destroyed or delimited by legislative enactment. 'The courts of this state derive their powers and jurisdiction from the constitution of the state. The constitutional jurisdiction can neither be restricted nor enlarged by legislative act. An attempt to take away from the court's judicial power conferred upon them by the constitution is void.' [Citing to the concurring opinion of Sloss, J. in Pacific Telephone and Telegraph Co. v. Eshleman, supra, 166 Cal. 640, 690, 137 P. 1119.] The case last cited, and other cases assembled and referred to therein, recognize that litigants have a constitutionally guaranteed right of appeal in all litigated matters within the express jurisdiction of appellate courts." (In re Sutter-Butte By-Pass Assessment, supra, 190 Cal. at p. 536, 213 P. 974.)
The Supreme Court found the cause to be within its appellate jurisdiction under article VI, section 4, of the constitution and for that reason refused to dismiss the appeal. Despite the statutory casting of the matter as a novel special proceeding it was, so the court said, "within the letter and spirit of the constitutional provision which grants to this court and guarantees to litigants the right, beyond legislative control, to an appeal in all cases, either at law or in equity, involving the validity of any tax or assessment." (190 Cal. at p. 539, 213 P. 974.)
The court referred to article 6, section 4, of the constitution, as amended in 1904: "[The] constitutional provision which provides that this court shall have appellate jurisdiction 'on appeal from the superior courts ... in all cases in equity ...; also in all cases at law which involve the ... legality of any tax, ... assessment, etc....' " (In re Sutter-Butte By-Pass Assessment, supra, 190 Cal. at p. 536, 213 P. 974.)
A 1928 amendment of the constitution placed the provisions for appellate jurisdiction in separate sections with slight modification of their scope. (California Constitution of 1879, as amended 1928, art. VI, §§ 4, 4b.) Not surprisingly, in Byers v. Smith (1935) 4 Cal.2d 209, 214, 47 P.2d 705, arising under the 1928 amendment, the Supreme Court cited Sutter-Butte By-Pass Assessment as authority for the proposition the Legislature lacks authority to destroy or abridge the right of appeal constitutionally granted in proceedings of removal from office. (See also McClintock v. Abel (1937) 21 Cal.App.2d 11, 17, 68 P.2d 273 [provisions of Code of Civil Procedure section attempting to give original appellate jurisdiction to the Supreme Court cannot be given effect as the Constitution gives that jurisdiction to the courts of appeal].)
Although no subsequent case addresses the point, the holdings of these cases remain unimpaired. As the Mercury News notes, there are cases like Trede, supra, in which appear passing statements that the right of appeal is dependent upon statutory authorization. For example, Modern Barber College v. Cal. Employment Stabilization Com. (1948) 31 Cal.2d 720, 728, 192 P.2d 916, says: "In interpreting [article VI, §§ 4, 4b of the Constitution as amended in 1928], the courts have held that the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable." This is another off-hand remark, since Modern Barber College does not concern appealability, much less a cause within an express constitutional grant of appellate jurisdiction. Moreover, the assertion is qualified by reference to both Byers and Sutter-Butte By-Pass Assessment as support with the caveat that they concern an "express constitutional right of appeal." (Modern Barber College, at p. 728, 192 P.2d 916.)
In Trede, the appeal was from a judgment in the nature of a denial of an injunction to overturn the Building and Loan Commissioner's seizure of the assets of a building and loan association for insolvency or violation of the law. (21 Cal.2d at p. 631, 134 P.2d 745.) The opinion addresses the question whether the commissioner could liquidate the assets while the judgment was on appeal. The constitutionality of the right of appeal was not in issue. There is no citation of authority for the generalization nor any analysis which might flesh it out. The statement was made only to introduce the rule that the Legislature has the power to impose conditions or restrictions upon the granting of a stay of execution pending an appeal. (Id. at p. 634, 134 P.2d 745.) The Trede opinion holds only that under the governing statute the commissioner was entitled to liquidate the assets and this was not an unconstitutionally unreasonable exercise of the police power, noting that the rule applicable in civil actions generally concerning an appeal from a decree denying an injunction did not require defendant to refrain from doing the act sought to be enjoined. (Id. at p. 635, 134 P.2d 745.)
Similar statements occur in Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78, 65 Cal.Rptr. 65, 435 P.2d 825, and Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 705, 238 Cal.Rptr. 780, 739 P.2d 140. But neither case involved an appeal from a cause within an express constitutional grant of appellate jurisdiction.
In short there is no case that repudiates the doctrine that an express constitutional grant of appellate jurisdiction cannot be impaired by statute.
II
That brings us to the most recent, 1966 amendment to article VI, section 11, of the California Constitution, which presently governs appellate jurisdiction. It provides:
"The Supreme Court has appellate jurisdiction when judgment of death has been pronounced. With that exception courts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute. [p] Superior Courts have appellate jurisdiction in causes prescribed by statute that arise in municipal and justice courts in their counties. [p] The Legislature may permit appellate courts to take evidence and make findings of fact when jury trial is waived or not a matter of right."
This amendment derives from a recommendation of the California Constitution Revision Commission. In respect to section 11, the Commission commented: "This section collects those parts of existing sections 4, 4b, 4e, and 5 that deal with appellate jurisdiction. Some of the existing sections contain detailed references to instances of appellate jurisdiction. The Commission deleted those references as unnecessary in the Constitution [except for the death penalty jurisdiction of the Supreme Court]." (Cal.Const.Rev.Com., Proposed Revision of the California Constitution (1966) p. 91.) As will be seen, the detailed references in the prior provisions are deleted as unnecessary because they have been replaced by language inclusive of the prior references.
As noted, article VI, section 11 distinguishes between causes over which the appellate courts are given appellate jurisdiction and other causes. With the exception of death penalty cases "courts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute." (Emphasis added.) This distinction impels the reading that the Legislature may not constitutionally impair appellate jurisdiction over a "cause" as to which the "superior courts have original jurisdiction." If one wanted to give the Legislature the power to cut off jurisdiction as well as to expand it, the provision would simply say, as does the provision governing the appellate jurisdiction of the superior courts, that the Courts of Appeal have appellate jurisdiction in "causes prescribed by statute."
Article VI, section 11 says that "courts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute." In employing the term "other" in reference to "causes prescribed by statute" the section unambiguously implies that "causes" are also the kinds of matters over which "superior courts have original jurisdiction."
As we have explained, the controlling case law recognizes a right of appeal with respect to every kind of case over which the appellate courts have been given appellate jurisdiction by the constitution. For that reason no statute can prohibit the right of appeal as to any cause over which "superior courts have original jurisdiction."
III
That leads to the question whether a case arising under the Public Records Act is a "cause" within the original jurisdiction of the superior courts, as that term is used in section 11 of article VI. The answer requires an inquiry into the historical uses of "cause" in the jurisdictional provisions of the constitution.
As noted the courts of appeal have appellate jurisdiction over causes over which the superior courts have original jurisdiction. The scope of the latter jurisdiction is provided in section 10, of article VI. It presently provides, in pertinent part: "Superior courts have original jurisdiction in all causes except those given by statute to other trial courts." This section also derives from the constitutional revision of 1966. It replaces former section 5 of article VI, which read: "The superior courts shall have original jurisdiction in all civil cases and proceedings (except as in this article otherwise provided, and except, also cases and proceedings in which jurisdiction is or shall be given by law to municipal or to justices or other inferior courts); in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for; and of all such special cases and proceedings as are not otherwise provided for; and said court shall have the power of naturalization and to issue papers therefor." (Cal.Const., art. VI, § 5, as amended in 1928.)
The word "cause" does not appear in this provision. Nor did it appear in the provisions which preceded section 11. It did appear in a predecessor to present section 12 of article VI, which provides authority for the transfer of "causes" by the Supreme Court. As related, the 1966 amendments to article VI were taken from a recommendation of the California Constitution Revision Commission. The recommendation was accompanied by an introductory provision entitled "Drafting Considerations", which said: " 'Cause' is used to replace many words and phrases used synonymously in the existing article such as 'case,' 'case and proceeding,' and 'case, matter, and proceeding.' " (Cal.Const.Rev.Com., Proposed Revision of the California Constitution, supra, p. 82.) Thus, from all that appears, the word "cause" in the present text of article VI of the constitution is a generic term which at least encompasses the civil and criminal cases and proceedings set out in detail in prior provisions of article VI. This is in keeping with the fact that "The word 'cause' is sometimes used synonymously with the terms 'case' or 'action'." (Painter v. Berglund (1939) 31 Cal.App.2d 63, 70, 87 P.2d 360; also see, e.g., Ballentines Law Dictionary (3d ed. 1969) p. 182; Black's Law Dictionary (5th ed. 1979) pp. 200-201.) "The words 'case' and 'cause' are constantly used as synonyms in statutes and judicial decisions, each meaning a proceeding in court; a suit or action." (Blyew v. United States (1872) 80 U.S. 581, 595 [20 L.Ed. 638, 642].)
However, this generalized usage is limited by the historical application of the term "cause" in the jurisdictional provisions of the constitution. The term had its first employment in the transfer provisions of the constitution. Under the provision of article VI, section 4, as amended in 1904, creating the district courts of appeal, it was provided that "The Supreme Court shall have power to order any cause pending before the Supreme Court to be heard and determined by a District Court of Appeal, and to order any cause pending before a District Court of Appeal to be heard and determined by the Supreme Court. The order ... may be made before judgment...." (Emphasis added.) "The supreme court was given power in any matter decided by the district court of appeal to vacate the decision and order it transferred to its own calendar for rehearing and decision. To describe the decisions subject to this power the word 'cause' was selected." (In re Wells (1917) 174 Cal. 467, 472-473, 163 P. 657.) The purpose of this provision was to give it the "power to transfer at will from any one of the courts to another, before hearing or decision, so as to apportion with fairness the burden of the work." (Id. at p. 472, 163 P. 657.) For that reason it held that "the power to transfer causes" included the power to transfer a case "either before or after judgment in the district court of appeal...." (Id. at p. 473, 163 P. 657; see also In re Stevens (1925) 197 Cal. 408, 414, 241 P. 88; People v. District Court of Appeal (1924) 193 Cal. 19, 20, 222 P. 353 [original writ of mandate proceedings in the court of appeal is a "cause" for purposes of transfer].) However, that power did not extend to the writ of habeas corpus. "The words 'any cause pending' used therein may reasonably be read, in the connection in which they are used, as not intended to include and as not including any matter as to which the well settled law excludes the idea of any right of review, except where there is a lack of jurisdiction. Such clearly is a habeas corpus proceeding." (Matter of Zany, supra, 164 Cal. at p. 729, 130 P. 710, orig. emphasis.) "That decision was based upon the peculiar nature and effect of the writ of habeas corpus, the fact that a judgment in such cases had never in the history of the state been made subject to review...." (In re Wells, supra, 174 Cal. at p. 473, 163 P. 657.)
This in turn became the basis of construction under another constitutional provision, that which permitted a "cause" to be tried by a judge pro tempore upon stipulation. In Quezada v. Superior Court (1959) 171 Cal.App.2d 528, 530, 340 P.2d 1018, relying on Wells and Stevens, it was held that a civil contempt proceeding was such a "cause" as the term included "every matter that could come before the court for decision." (Also see, e.g., Sarracino v. Superior Court (1974) 13 Cal.3d 1, 9-10, 118 Cal.Rptr. 21, 529 P.2d 53 ["A cause is the proceeding before the court."].) We imply no view on the question whether such a proceeding is now within the appellate jurisdiction of the courts of appeal as a consequence of the 1966 amendment of article VI, section 11.
As noted, the term "cause" presently appears not only in the transfer provisions of section 12 of article VI , but in sections 11 and 10 as the operative word in the provision conferring appellate jurisdiction on the courts of appeal. It is not to be supposed that an inherent limitation in the employment of "cause", based upon historical fact that cases, as habeas corpus, had never constitutionally been made the subject of appellate review, would have been negated by the constitutional amendments of 1966 or that the term "cause" as used in sections 10 and 11 of article VI does not bear this limitation. Accordingly, the term "cause", as used in article VI, section 11, broadly refers to a case of any kind, as above qualified.
Prior to its reappearance in section 12 of article VI of the 1966 amendments to the constitution, the term "cause" was briefly replaced by the word "case" in the 1954 amendment to former section 4c of article VI. However, the amendment was explained to the voters as working "no substantive change in [the transfer] provisions of existing Section 4c...." (Ballot handbook of Amendment to Constitution, submitted to the voters on Nov. 2, 1954, p. 21.)
For this reason the Legislature, as here, may not impair the appellate jurisdiction constitutionally conferred upon the appellate courts by prohibiting all right of appeal in a kind of case within the jurisdiction. "But while the Legislature cannot substantially impair the right of appeal, it is certainly competent to regulate the mere mode in which this right must be asserted." (Haight v. Gay, supra, 8 Cal. at p. . 300.) Thus the grant of appellate jurisdiction over a broad class of cases does not deprive the Legislature of the power to preclude interlocutory appeals or to limit appeal to a case, otherwise of the kind within the jurisdiction of the courts of appeal, which has reached a final disposition on the merits. (See People v. Valenti (1957) 49 Cal.2d 199, 204 and 204, fn. 1, 316 P.2d 633.) Nor does the employment of the term "cause" as "case" say anything about whether a cause has been "created" sufficient to compel a hearing on the merits. (Cf. People v. Pacini (1981) 120 Cal.App.3d 877, 883-885, 174 Cal.Rptr. 820; pet. for hrg. denied.)
However, the Legislature, in the guise of determining whether a final disposition is a final judgment or order within the meaning of Code of Civil Procedure section 904.1 from which an appeal may be taken, as it sought to do in section 6259, subdivision (c), may not deny appellate jurisdiction over the class of public records act cases over which it has given the superior courts original jurisdiction. "[I]f the legislature cannot take away this right by direct enactment neither can it accomplish the same result by any indirect device. While the legislature has, ordinarily, the power to create a new remedy for the enforcement of a right or a defense against a wrong, it cannot, under the guise of creating a new statutory remedy, deprive a litigant of an existing constitutionally guaranteed right to defend, even unto a court of last resort, against the enforcement of an alleged right. This right to so defend, once existing, continues regardless of the form in which the legislature may cast the remedy." (In re Sutter-Butte By-Pass Assessment, supra, 190 Cal. at pp. 536-537, 213 P. 974.) It may not distinguish between cases over which the superior court has been given appellate jurisdiction as to the right of appeal. For that reason we conclude that under article VI, section 11, the appellate jurisdiction of this court embraces the final resolution by order or judgment of all discrete causes which are within the original jurisdiction of the superior courts.
This action under the Public Records Act for an order compelling release of records is a "cause" and thereby within article VI, section 10 because it is the kind of case over which the superior courts have by statute been given original jurisdiction. (§ 6258.) Since the first sentence of subdivision (c) of section 6259 forbids an appeal in all public records act cases it is void as in conflict with the grant of appellate jurisdiction in article VI, section 11 of the California Constitution.
Since the writ of review is thereby precluded as the means of review of the order in this case, the petition for writ of review is denied. The petitioners have an appellate remedy by appeal.
We take judicial notice from our records that the Board has prudently filed a timely protective appeal in this case. If a litigant had not done so, in reliance on the presumptive constitutionality of section 6259, subdivision (c), it would be appropriate to fashion a remedy. However, that problem is not presented here.
PUGLIA, P.J., and DAVIS, J., concur.
This provision was amended in 1990 to substitute "1991" for "1985" and "extraordinary writ" for "extraordinary writ of review". (Stats.1990, ch. 908.) This amendment did not repeal the prohibition on appeal for actions, as in this case, filed after January 1, 1985, and before January 1, 1991. An amendment of a statute does not work a repeal and reenactment of the section. (Gov.Code, § 9605.) Rather, "[t]he portion of an amended statute which remains the same as it was prior to the amendment, continues to be the law from the time of its original enactment and any changes or additions are considered as having been enacted at the time of the amendment." (Estate of Childs (1941) 18 Cal.2d 237, 245, 115 P.2d 432.) The portion of the 1990 amendment to section 6259, subdivision (c), which "remains the same" includes the invalid prohibition on review by appeal. For this reason the amendment does not remedy the constitutional defect assayed in this opinion nor affect the result in this case.
The proponent of the 1984 amendment was a newspaper, dissatisfied with the success of government defendants in delaying disclosure during the time of appeal. (Ibid.) The constraint of the restricted standard of review in certiorari was noted by staff of a legislative committee. (Ibid.) As Newspaper notes, the 1990 amendment (see fn. 2, ante ) ameliorates this problem. The amendment permits review by writ of mandate or prohibition. While this broadens the possible scope of review to abuse of discretion, it still presents a substantial impairment of a constitutional right of appeal because writs are subject to denial without explanation in the discretion of the court of appeal while an appeal must be determined "in writing with reasons stated." (Cal.Const., art. VI, § 14.)