With first-hand knowledge of operating at less than full strength, the Supreme Court today holds that two members of a five-member state board with two vacant seats properly adopted a waste discharge permit fee schedule. The court’s opinion by Justice Carol Corrigan in California Building Industry Association v. State Water Resources Control Board applies the common law rule that, “‘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.’” The big question was whether there was a contrary statutory provision, a determination that required analysis of nearly 50-year-old legislative history documents. The court also rejects statutory and constitutional challenges to the board’s action, including finding that the fee was not a “tax” for purposes of Proposition 13 and its progeny.
The court affirms the First District, Division Two, Court of Appeal, which had divided 2-1 on the contrary-statutory-provision question.
