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LOS ANGELES — The California Supreme Court on Tuesday didn’t seem ready to tell Gov. Gray Davis and other officials in the executive branch of government that state workers can’t be paid during budget impasses. In a spirited hourlong discussion, the justices hammered the trial court’s decision to grant a preliminary injunction ordering the state controller to stop paying state workers without examining the irreparable harm that supposedly would have befallen taxpayers. Justice Joyce Kennard told Beverly Hills lawyer Richard Fine, who represented state taxpayers, that his position would have the court ignore that standard, required by state law for the issuance of a preliminary injunction, while only looking at the other standard — whether there was a likelihood the suit would succeed. “I don’t think there is authority for that,” Kennard said. In another case Tuesday involving rock and blues musicians Edgar and Johnny Winter, the high court seemed very reluctant to clamp down on writers and artists who parody celebrities. The court is using the case to expand on Comedy III Productions v. Saderup, 25 Cal.4th 387, its 2-year-old case that says celebrity depictions are protected by the First Amendment as long as there are creative elements that transform them into something more than a mere likeness. In the first case — White v. Davis, S108099 — California taxpayers, including the Howard Jarvis Taxpayers Association, sued following budget impasses in 1997 and 1998 to prevent the state controller from disbursing funds to state workers until a budget was passed. To do otherwise, they argued, violated state constitutional bars against such appropriations. Los Angeles’ Second District Court of Appeal disagreed and overturned the preliminary injunction 11 months ago. “State employees have a continuing employment relationship with the state during a budget impasse,” the court held, “and thus they are entitled to receive wages and overtime compensation required under the [Fair Labor Standards Act] for work performed during such a period, given the supremacy of federal law.” On Tuesday, justices couldn’t seem to get past the fact that the trial court never weighed the potential harm for taxpayers. Fine told justices that the “harm” was the irreparable damage to the state Constitution if its bar on appropriations isn’t followed. “What’s your authority for that expansive view of irreparable injury?” Chief Justice Ronald George asked. Kennard later asked whether there wouldn’t have been irreparable harm to state employees if they weren’t paid. When Fine said there would have been no harm, Kennard asked incredulously: “No harm to people who would be deprived of necessary funds, to be deprived of the necessities of life?” Fine looked directly at Kennard and responded, “Don’t look surprised!” evoking first silence and then laughter from those in court. Earlier, Justice Marvin Baxter was grilling Sacramento lawyer Anne Giese — one of three lawyers representing the state — and asked whether the judiciary, in authorizing payment, doesn’t encourage legislators to continue getting trapped in budget impasses. Giese said no, and then added that state employees “shouldn’t be the ones who are jeopardized by legislative actions. They should not be pawns.” In the other case, the Winter brothers had sued DC Comics for publishing a 1995 comic book depicting the two as Edgar and Johnny Autumn, villainous half-human, half-worm albinos who eat raw pig brains and battle singing cowboys as part of an empire of giant subterranean worm monsters. They claimed misappropriation of their likenesses. Last year, the Second District held there were triable issues of fact about whether the parodies met Comedy III‘s transformative test. But on Tuesday, the high court, in Winter v. DC Comics, S108751, seemed to think there was little doubt that they did. Justice Kennard said that when she laid out photos of the Winter brothers and the caricatures from the comic book — “Jonah Hex: Riders of the Worm and Such” –there was no way they could be considered likenesses. Justice Ming Chin added: “Isn’t it obvious when you look at these pictures that they are transformed?” Vincent Chieffo, the Winters’ attorney from the Santa Monica office of Miami’s Greenberg Traurig, made the argument, though, that the justices need not bother with the transformative test. The characters in the comic book, he said, are nothing like the Winter brothers, and, therefore, DC Comics is guilty of false advertising because they had advertised that Edgar and Johnny Winter were going to be in the book. “So,” Justice Kathryn Mickle Werdegar said, “you’re saying they’re using the Winter brothers to advertise their comic books?” That didn’t fly with Justice Kennard. “It seems the primary inquiry is not marketability,” she said, “but whether the creation is transformative.” During his time before the panel, Michael Bergman, the partner at Beverly Hills’ Weissmann, Wolff, Bergman, Coleman, Grodin & Evall who represented DC Comics, was asked whether it would be transformative if the characters were based on “an accomplished scientist” rather than popular musicians. Bergman said he thought so and launched off into a description of a “wild-haired” mad scientist that would be so transformative as to be nothing like the imaginary scientist. “When you mention ‘wild hair,’” Justice Chin said, “one particular scientist comes to mind — and it might not be so transformative.” The reference to Albert Einstein caused a chuckle around the court. Decisions in both cases are expected within 90 days.

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