In the recent California gubernatorial debate, Governor Jerry Brown defended his decision to appeal Judge Rolf M. True’s ruling in Vergara v. California, Cal. Super. Ct. Case No. BC484642 (June 10, 2014).  The case has attracted widespread attention because Judge True ruled that five Education Code provisions protecting teacher tenure violate the equal protection clause of the California Constitution, Art. I, § 7(a).  Governor Brown argued:

Vergara could have a very strong impact but only if it’s validated by the court of appeals [sic].  Our Constitution – Article III, Section 5, says a Superior Court judge can’t invalidate this law.

Actually, Article III, Section 5 doesn’t say that at all.  Here it is in its entirety: “Suits may be brought against the State in such manner and in such courts as shall be directed by law.”

Governor Brown probably had a different provision of the Constitution in mind – Article III, Section 3.5.  However, that section doesn’t prohibit judges of the Superior Court from invalidating provisions of the Education Code or any other state statutes.  In fact, the voters added Article III, Section 3.5  to the Constitution in 1978 in reaction to a decision by the California Supreme Court holding that the Public Utilities Commission had authority to determine the validity of state statutes.  Southern Pacific Transportation Co. v. Public Utilities Commission, 556 P.2d 289 (1976).   This is what Article III, Section 3.5 actually provides:

An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

While this provision clearly limits the power of administrative agencies, it gives rise to a variety of questions.  For example, are state agencies obligated to defend statutes in court?  Are they required to appeal trial court decisions declaring statutes unconstitutional or preempted?  Does it make a difference if the court is a federal or state court?  These are some questions that I plan to tackle in a forthcoming article to be titled: “Train Wreck Kills Two: Constitution is Amended: An Analysis of the Surprising History and Tangled Meanings of Article III, Section 3.5 of the California Constitution”.