Opinion
Super. Ct. No. 39-2009-00227959-CU-WM-STK
MODIFICATION OF OPINION UPON DENIAL OF PETITION FOR REHEARING
THE COURT:
The opinion of this court filed March 1, 2012, in the above entitled case is modified as follows:
1. On page 18, last sentence ending in “contract.” Add a footnote as follows:
“District argues on rehearing that section 44909 provides employees may be deemed temporary where so agreed between the district and the employee, since the section allows a person to be employed for a period that is less than a full school year. Consistent with the language and purpose of this section, an employee may be hired for less than a school year and treated as a temporary employee only if the categorically funded project or contract with another agency expires before the end of a full school year.”
2. On page 25, at the end of the first full paragraph add the following footnote:
“In a petition for rehearing, the District argues our ruling would make it impossible to comply with the requirements of section 44916, which provides that the District must classify its employees at the time of employment and state the length of employment for temporary employees. The classification and length of employment for section 44909 employees may be adequately set forth by a notice stating: “You are being hired to perform services for a categorically funded project. You are a temporary employee, unless the district terminates your employment before the expiration of the project, in which case you will be treated as a probationary employee. Your employment will be terminated at the expiration of the specially funded project for which you are being hired.””
3. On page 25, add the words “entire or remaining” to the first sentence of the last paragraph to read: “What a district may not do, is hire a person for more or less than the entire or remaining term of the contract or project, and treat such a person as a temporary employee.”
4. On page 25, to the ninth line of the same paragraph, add the words “entire or remaining” after “less than the”.
5. On page 25, to the last sentence in the same paragraph, add “entire or remaining” after “less than the”.
4. On page 26, last sentence of section IV, add the following footnote after “hired”:
“On rehearing, District offers numerous hypothetical situations, some involving other sections of the Education Code, and asks for our opinion on various aspects of such situations. For example, District seeks our opinion as to: (1)whether section 44909 employees may be terminated when program funding is reduced rather than eliminated, (2) what happens when categorical funds are reallocated pursuant to section 42605, (3) what happens if a position is funded with both categorical and general funds, (4) when a program expires if its funding is approved on a year by year basis, and (5) whether our opinion applies to section 1294.5, regarding county superintendents of schools. An appellate court does not “inform the litigants what the opinion of the court is upon a question that has not been raised in the action, or what its decision would be if the question should be presented.” (Hill v. Hill (1947) 79 Cal.App.2d 368, 370.) When we interpret a statute, our interpretation is necessarily premised upon the application of the statutory language to the specific facts we are presented. Our restraint in issuing what is essentially an advisory opinion is rooted in the separation of powers doctrine. “[I]n the absence of a genuine controversy between parties growing out of actual events involving the application of a law to private affairs, the judicial opinion, being hypothetical, is essentially a determination of policy.” (1 Sutherland, Statutes and Statutory Construction (7th ed. 2010) § 3.30, p. 124, fn. omitted.) Such determinations of policy in the absence of a specific dispute are properly the province of the Legislature. We leave such questions either to the court to which the appropriate facts are tendered, or to the Legislature, which has the ability to clarify the manner in which it desires its legislative scheme to operate.”
As modified, the petition for rehearing is denied. This modification does not effect the judgment.
BLEASE, Acting P. J. ROBIE, J., HOCH, J.