Beruflich Dokumente
Kultur Dokumente
DIANE F. BOYER-VINE
Legislative Counsel
State Bar No. 124182
ROBERT A. PRATT
Principal Deputy Legislative Counsel
State Bar No. 137704
MARIAN M. JOHNSTON
Deputy Legislative Counsel
State Bar No. 061643
Office of Legislative Counsel
925 L Street, Suite 900
Sacramento, California 95814
Telephone: (916) 341-8186
Facsimile: (916) 341-8395
INTRODUCTION ............................................................................................ 1
ARGUMENT .................................................................................................... 3
i
III THE RIGHT TO JUDICIAL REVIEW GUARANTEES THAT THE
LEGISLATURE DOES NOT MISUSE ITS POWER TO DRAFT
ELECTIONS MATERIALS ................................................................ 28
CONCLUSION ............................................................................................... 49
ii
TABLE OF AUTHORITIES
CASES
Bertino v. Sanborn
(1934) 136 Cal.App. 247 ................................................................. 6
Boyd v. Jordan
(1934) 1 Cal.2d 468....................................................................... 47
Bradley v. Voorsanger
(1904) 143 Cal. 214......................................................................... 6
Canaan v. Abdelnour
(1985) 40 Cal.3d 703..................................................................... 15
Clark v. Jordan
(1936) 7 Cal.2d 248....................................................................... 48
iii
Collins v. Riley
(1944) 24 Cal.2d 912..................................................................... 44
Dimmick v. Dimmick
(1962) 58 Cal.2d 417....................................................................... 4
Fair v. Hernandez
(1981) 116 Cal.App.3d 868 ........................................................... 15
Gould v. Grubb
(1975) 14 Cal.3d 661............................................. 12, 13, 14, 15, 48
Huening v. Eu
(1991) 231 Cal.App.3d 766 ............................................... 32, 33, 42
Hull v. Rossi
(1993) 13 Cal.App.4th 1763.......................................................... 24
iv
In re Collie
(1952) 38 Cal.2d 396, cert. denied sub nom. Collie v. Heinze
(1953) 345 U.S. 1000 ..................................................................... 9
Knoll v. Davidson
(1974) 12 Cal.3d 335..................................................................... 25
Pack v. Vartanian
(1965) 232 Cal.App.2d 466 ............................................................. 5
People v. Briceno
(2004) 34 Cal.4th 451.............................................................. 34, 35
People v. Cooper
(2002) 27 Cal.4th 38...................................................................... 35
People v. Gordon
(1944) 62 Cal.App.2d 268 ............................................................. 27
People v. Hayne
(1890) 83 Cal. 111......................................................................... 27
v
People v. Shearer
(1866) 30 Cal. 645......................................................................... 22
Stanson v. Mott
(1976) 17 Cal.3d 206............................................................... 16, 17
Strauss v. Horton
(2009) 46 Cal.4th 364.................................................................... 26
White v. Davis
(2003) 30 Cal.4th 528.................................................................... 14
CALIFORNIA CONSTITUTION
California Constitution, Sec. 3, Art. II .... 11, 12, 13, 14, 21, 27, 38, 43
vi
California Constitution, Sec. 7, Art. II .............................................. 15
California Constitution, Sec. 10, Art. II . 9, 11, 18, 19, 20, 27, 31, 34,
43
CALIFORNIA STATUTES
vii
Ch. 23, Stats. 1961.............................................................................. 40
viii
Elections Code Section 13117............................................................ 10
Government Code Section 88002................... 33, 39, 40, 41, 42, 44, 45
ix
Government Code Section 88007....................................................... 42
BALLOT MEASURES
Proposition 1A
(November 4, 2008, Statewide General Election Ballot) ... 1, 10, 11
Proposition 22
(Statewide Primary Election) ........................................................ 36
Proposition 98
(Statewide Primary Election) .................................................. 36, 37
x
INTRODUCTION
Acts providing for the sale of state general obligation bonds must be
submitted to the electors of the State of California for their approval. Cal.
Const., Art. XVI, § 2, subd. (a). This appeal concerns the authority of the
a two-thirds vote of each house, and the Governor signed, a statute placing
ballot label and for the ballot title and summary for the bond measure, and
directed that this language appear on the ballot notwithstanding any other
1
period for the public to review the language and, if warranted, seek judicial
review.
challenging one sentence in the ballot label and one sentence in the ballot
interest. Clerk’s Transcript (CT) 1-9, 62-72. The Legislature opposed the
petition (CT 187-202), along with the respondent and the other real parties in
interest. CT 203-217.
found that the Legislature acted lawfully in establishing the procedures for
providing specific language for the ballot label and for the ballot title and
http://www.sos.ca.gov/elections/sov/2008_general/contents.htm.
concerning the constitutionality of the statute that directed how this one
dismissed as moot. Appellants asked for no relief other than a change in the
2
ballot pamphlet language. The election has occurred, and the bond measure
was approved. Chapter 267 of the Statutes of 2008 has no further effect.
ARGUMENT
The election is over, and the bond measure has been approved by the
voters. http://www.sos.ca.gov/elections/sov/2008_general/contents.htm.
2
The timing of the enactment of measures to be placed on the ballot is frequently
problematic, given the delay often arising from the need to attain a two-thirds vote
consensus within each house of the Legislature for passage of a bond measure, and
the logistical demands on the Secretary of State in preparing for an election (e.g.,
the public review period, the printing of materials, and the distribution of overseas
ballots in time to receive them back by the date of the election). In light of these
factors, the Legislature’s decision to forego the lengthy time period usually
required to await draft ballot language from the Attorney General is
understandable. For example, Chapter 267 of the Statutes of 2008 was enacted on
August 26, 2008, LRJN 12, to be voted on in the November 4, 2008 election.
Chapter 7 of the Statutes of 2009 of the 2009-10 Third Extraordinary Session was
enacted on February 20, 2009, LRJN 1, for a special election on May 19, 2009.
3
November 4, 2008, election.
framing their prayer for relief, as the only remedy they requested was (1)
that the Secretary of State be ordered to request the Attorney General to draft
an alternative ballot label and ballot title and summary for the bond measure
and (2) that one sentence be removed from the ballot label and ballot
summary. CT 9. They requested no other relief, and they did not and are
not asking to have this Court invalidate the election or enjoin the issuance of
Appellants now seek relief never requested below, as they ask this
and analyses of its own ballot measures.” AOB, p. 19. Appellants cite no
authority supporting their attempt to broaden their request for relief, and
case law establishes that relief may not be granted on appeal that exceeds the
relief requested in the trial court. “It is settled that points not raised in the
trial court will not be considered on appeal. [Citations.] This rule precludes
a party from asserting on appeal claims to relief not asserted in the trial
court.” Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422. This rule was
Corp. (1992) 4 Cal.App.4th 1373, 1381, to hold that appellants who had
4
only pled a petition for writ of mandate were not entitled to declaratory relief
Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 218, fn.2, which
explains that courts may proceed to decide the issues in a moot case where
those issues are of continuing public interest and are likely to recur.
However, appellants admit they “are not asking to have the election
Cal.4th 735, in which the California Supreme Court held that an election
challenge was not moot. As that Court explained, because the appellants in
that case sought “invalidation of the two measures enacted by the voters, the
remedy issue that is presented remains alive and is not moot.” Id., at 742.
invalidate the election and prayed for no relief other than that the ballot
materials for the November election last year be changed, the case is moot.
issues that they now seek to raise at the appellate level, nor does any aspect
5
of this matter addressed by the trial court warrant the Court’s acceptance of
Angeles (1939) 14 Cal.2d 128, 134, “the time of the court should not be
the parties.” There, the court dismissed as moot an appeal from an action
seeking to enjoin an election that had already been held. See also Bradley v.
Voorsanger (1904) 143 Cal. 214, 216; Bertino v. Sanborn (1934) 136
Cal.App. 247, 247-248 (“Where abstract questions only are involved and the
appellate court will not retain jurisdiction.”). “Where the plaintiffs have
placement of the referendum measure on the election ballot, and sought only
to prevent the election or remove the measure from the ballot, the election's
concurring).
trial court, were distributed to the voters; because that election is now in the
6
past; and because appellants are not seeking to invalidate the results of that
II
for the powers of initiative and referendum, which are reserved to the
people. Cal. Const., Art. IV, § 1. 3 And, as explained in many cases, the
3
All further references to articles are to articles of the California Constitution.
7
State Personnel Bd. v. Dept. of Personnel Admin. (2005) 37 Cal.4th
512, 523 (internal quotation marks and citations omitted). See also
governing placing the high-speed train system bond measure before the
to otherwise establish the procedures for presenting the bond measure to the
superseded here. AOB, p. 12. But, the California Constitution does not
8
exclusively for this bond measure. 4 This was within the Legislature’s
legislative power, which may be exercised solely by the Legislature, and not
by the courts. Art, III, § 3; Art. IV, § 1. A court may not, of course, order
the Legislature to adopt specific statutes, as this would violate the separation
that “one legislative body cannot limit or restrict its own power or that of
subsequent Legislatures and that the act of one Legislature does not bind its
successors.” In re Collie (1952) 38 Cal.2d 396, 398, cert. den. sub nom.
Collie v. Heinze (1953) 345 U.S. 1000. See also County of Los Angeles v.
State of California (1984) 153 Cal.App.3d 568, 573 (“one legislature cannot
4
The Legislature is restricted by subdivision (c) of Section 10 of Article II in the
manner it may amend initiative statutes, but, as discussed below, that restriction
does not apply here.
9
electors, and that decision must be respected.
Appellants argue that “the Legislature bent several rules” (AOB, p. 3),
10
that the Legislature simply replaced old statutory rules with new statutory
as the Legislature is directed “to provide for … free elections,” Art. II, § 3,
Legislature's power to act in any given case, the doubt should be resolved in
5
Even as to initiative and referendum measures, the Legislature is constitutionally
mandated to “provide the manner in which petitions shall be circulated, presented,
and certified, and measures submitted to the electors.” Art. II, § 10, subd. (d).
11
to include matters not covered by the language used."' State Personnel Bd.,
Court (1979) 23 Cal.3d 839. There, the court rejected a claim that requiring
Furthermore, one of the cases that appellants cite, though not relevant
regulations for the form and content of ballots.” Gould v. Grubb (1975) 14
Cal.3d 661, 669. The court in Gould declined to mandate any particular
6
This decision also refutes appellants’ contention that the guarantee of “free
elections” does not signify, among other things, without cost. AOB, p. 11.
12
restraints.” Id., at 676.
Article II. The issue in Gould was a city charter provision that placed
incumbents in the top ballot position, and this provision was held to violate
that expressly govern the manner in which general obligation bond measures
in particular are to be submitted to the voters. Cal. Const., Art. XVI, Sec. 1. 7
7
Section 1 of Article XVI provides, in pertinent part, that“[f]ull publicity as to
matters to be voted upon by the people is afforded by the setting out of the
complete text of the proposed laws, together with the arguments for and against
13
The electoral procedures applied in the case of the bond measure in question
here, including those specified by Chapter 267 of the Statutes of 2008, fully
favor of the Legislature’s action, because “all intendments favor the exercise
528, 539. Sections 3 and 4 of Article II do not limit the Legislature’s power
The cases on which appellants rely are simply not on point, as they involve
constitutional issues not remotely at issue here. Further, none of these cases
by a state legislature.
them, in the ballot pamphlet mailed to each elector preceding the election at which
they are submitted, and the only requirement for publication of such law shall be
that it be set out at length in ballot pamphlets which the Secretary of State shall
cause to be printed.” Art. XVI, § 1.
14
incumbents was found to violate the equal protection guarantee as a
Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, upheld the
disclosure.
In Fair v. Hernandez (1981) 116 Cal.App.3d 868, the issue was the
[that] would undermine … the integrity of the voting process. Id., at 877.
And, finally, in Greene v. Marin County Flood Control and Water Cons.
Dist. (2009) 171 Cal.App.4th 1478, the court merely reconciled the
requirement that voting be secret (Art. II, § 7), with the requirement that
voters approve new local fees, Art. XIIID, in order to protect the voters’
“right to vote freely with the confidence that their votes will remain secret
15
None of these issues exists in this case. Appellants appear to have
pulled random quotations extolling the right to vote from these cases,
involves Stanson v. Mott (1976) 17 Cal.3d 206, and its progeny, but, even
there, the case law does not support appellants’ claim that it is unlawful for
the Legislature to enact a statute providing the language to be used for the
ballot label and the ballot title and summary. The holding in Stanson applies
public funds to influence the election process. Here, of course, not only is
there no expenditure of public funds other than that required to conduct the
precise objection is that Chapter 267 of the Statutes of 2008 specified the
ballot language.
at 209. The California Supreme Court concluded that “at least in the
campaign.” Id., at 209-210. The court relied upon language in Mines v. Del
16
Valle (1927) 201 Cal. 273, a case involving public funds spent to promote a
to said board in clear and unmistakable language.” Id., at 287. The Stanson
court made it clear, however, that public funds could be used to provide the
Stanson, at 221.
Thus, Stanson applies where public funds are being spent without
the case here, where the ballot label and ballot title and summary merely
informed the voters of the content of the bond measure, subject to review
and modification by the trial court to ensure that these ballot materials
the same judicial review for false or misleading statements that would have
applied if the Attorney General, instead of the Legislature, had drafted the
language.
17
regarding the effects of the ballot proposition. Unquestionably, the
judicial review, was neither false nor misleading, and enabled the voters to
make their own decision about the legislative proposal and whether or not to
support the bond measure. And, although appellants object to this measure,
the voters agreed with the Legislature and the Governor as to the need to
without voter approval. See Art. IV, §§ 8, 10, and 12. However, the
Constitution does require general obligation bond measures and a few other
8
The legislative history of Chapter 267 of the Statutes of 2008 may be found at
http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_3001-
3050/ab_3034_bill_20080826_history.html.
9
In addition to bond measures (Art. XVI, § 2, subd. (a)), legislative proposals to
amend or revise the California Constitution or to call a constitutional convention
must also be submitted to the electors. Art. XVIII, §§ 1 and 2. Legislative
18
referendum measures, on the other hand, must always be adopted by the
measures that are not imposed on measures the Legislature must submit to
petitions before these are circulated for signatures. Art. II, § 10, subd. (d).
Art. II, § 8, subd. (c), and § 9, subd. (c). Again, there is no corresponding
the voters.
California Constitution does not mandate that the same titles and summaries
19
that the Attorney General prepared prior to circulation of initiative and
Attorney General to prepare ballot labels and summaries for initiative and
requirement that titles and summaries for initiative and referendum petitions
are to be prepared by the Attorney General before these are circulated for
signatures, and establishes the timing for initiative and referendum measures
measures.
to bond measures. AOB, pp. 5-7. As they note, the Legislature has enacted
20
to be submitted to the electors, and these statutes sometimes track the
for example, Art. II, § 8, subd. (c), with Elec. Code § 9040. But the
the authority to provide for free elections and prohibit improper election
practices. Art II, §§ 3 and 4. With minor exceptions not relevant here, the
has all legislative power not limited by the California Constitution, and the
10
A few constitutional restrictions do exist. For example, legislative measures
proposed to the electors may not name any individual to hold office or any private
corporation to perform any functions. Art. II, § 12. Legislative measures
proposed to the electors may not include or exclude political subdivisions of the
state based on the votes in that subdivision or specify that provisions become law
based upon a specified percentage of votes. Art. IV, § 8.5. These provisions are
all irrelevant to this case.
21
F. THE CONSTITUTION DOES NOT REQUIRE THAT ONLY
THE ATTORNEY GENERAL DRAFT BALLOT LANGUAGE
and then, without any supporting authority, leap to the conclusion that only
the Attorney General, who provides this information for initiatives and
AOB, pp. 5-6. They describe the Attorney General as “unbiased” and
is none, for the proposition that the California Constitution assigns to the
Attorney General the authority to prepare the ballot label, or ballot title and
summary, for a bond measure the Legislature places on the ballot, to the
is on point.
30 Cal. 645, 653. Therefore, opinions issued by the Attorney General are
22
necessarily subject to an impartiality standard, as is the judiciary. Fletcher
Songstad did not even concern the Attorney General. Rather, it dealt
Government Code § 9105, subd. (a), that the county counsel prepare a ballot
title before circulation of the measure, with the title being “a true and
impartial statement of the purpose of the proposed measure” and that this
to the county counsel language. Id., at 1211. Even so, if a proponent did
clear and convincing evidence that the language is false or misleading. Elec.
Code § 9106.
for each state measure by the Legislative Analyst with the ballot label and
ballot title and summary prepared by either the Attorney General or, as in
23
this case, the Legislature. Under Elections Code § 9087 and Government
Analyst’s analysis was included in the ballot material for the high-
Code § 9280, formerly § 5011, require county counsels and city attorneys to
24
Elections Code section 3781, subdivision (b) ….” See also Songstad, 93
Knoll v. Davidson (1974) 12 Cal.3d 335, 352, the court noted that “it seems
the voter's pamphlet have a clear advantage over candidates who do not.”
The court declined, however to invalidate the fee, as payment was not, in
Ibid.
These cases simply do not support the contention that the Attorney
General, who is a state officer elected on a partisan basis, has the exclusive
ballot label and ballot title and summary. AOB, p 7. Moreover, as this
Court has recognized, the fact that the drafter of ballot language supports or
25
opposes the underlying measure does not mean that the language is therefore
biased. For example, when the Attorney General supports an initiative, this
does not mean that the ballot language drafted by the Attorney General is
elected state constitutional officer, the Attorney General is not only entitled
uninterested party in this respect, it may be noted that although the Attorney
General, in his official capacity, drafted the ballot label and ballot title and
Attorney General supported and that was to appear on the ballot for the
26
prohibit affirmative action. This Court rejected the notion that the Attorney
the measure, and applied the “false or misleading” test set out in Elections
Cal.App.4th at 439.
provision that may limit that authority is to be strictly construed and “not to
Gordon (1944) 62 Cal.App.2d. 268, 271. See also People v. Hayne (1890)
83 Cal. 111, 115; People v. 8,000 Punchboard Card Devices (1983) 142
submitted to the electors.” Art. II, §§ 3 and 10, subd. (e). Conversely,
ballot label, or a ballot title and summary, for a general obligation bond
27
measure to be submitted to the electorate, or that denies to the Legislature
the authority to enact a statute setting forth the language for those ballot
materials.
III
interferes with the right to a fair election (AOB, pp. 10-15), appellants have
failed to show either that this measure resulted in any unfairness, or that the
statute.
governing these measures. Moreover, the fact that the Legislature has an
28
position regarding the merits of a ballot measure is not improper.” Vargas v.
Under California law, the contents of a ballot label and a ballot title
Government Code Section 88006, which provide for judicial review of those
materials and authorize the courts to amend or delete any contents shown to
language specified for the ballot label or the ballot title and summary is false
or misleading, the remedy is judicial review of the language under the “false
2008, it did not alter the requirement that the ballot language set forth in that
and it did not challenge the authority of the trial court to apply that standard
provided in Chapter 267 of the Statutes of 2008 that any voter could petition
for a writ of mandate to seek judicial review of the ballot language. § 11 (i).
29
Appellants took advantage of this opportunity, and challenged the
language in Chapter 267 of the Statutes of 2008, arguing that two sentences
language in the trial court, the Legislature never contended that the statutory
language was not subject to judicial review; it merely argued that the
The trial court, in fact, agreed with appellants in one respect and
sought review of this order or disputed the authority of the trial court to issue
a writ of mandate upon a finding of clear and convincing proof that the
to ensure the integrity of ballot materials has served the people of California
well, and applies equally whether the ballot label and ballot title and
statute. Appellants have failed to show that Chapter 267 of the Statutes of
11
The Legislature does, however, object to appellants’ belated challenge on
appeal as to language not challenged in their petition. Their petition challenged
only two sentences in the ballot language. Compare AOB, p. 7-8, with CT 6-8,
and RT 12:14-16. They have waived any right to object to any ballot language not
challenged in their petition.
30
2008 represents a change to this long-standing system of judicial review or,
Not only has the Legislature not sought to derogate the authority of
Legislature may amend the PRA only to further its purposes, and then only
by specified procedures. Art. II, Sec. 10, subd. (c); Gov’t Code § 81012.
submits to the Court that the enactment of statutes such as Chapter 267 of
the Statutes of 2008 neither amends nor violates the PRA. Nothing in the
PRA prevents the Legislature from specifying, by statute, who is to draft the
ballot label and ballot title and summary that appear in the ballot pamphlet.
subsequent law would “amend” an initiative statute, in this case the PRA. In
31
Huening v. Eu (1991) 231 Cal.App.3d 766, this Court invalidated former
Elections Code Section 3564.1, which provided that “[a] ballot argument or
a rebuttal argument which includes in its text the name or title of a person,
other than the author of the argument, who is represented as being for or
following the requirements set forth in Government Code Section 81012 for
conclusion, the Court stated that “Chapter 8 of the Political Reform Act
(Gov. Code, § 88000 et seq.) governs the content of a ballot pamphlet.” Id.,
at 777.
argument that included the name of a company without first obtaining the
this language removed; they were successful at the trial court level, and the
challenged language was removed from the ballot pamphlet. The opponents
appealed, arguing that the statute violated the First Amendment of the
federal constitution and that it amended the PRA without complying with its
Two of the Justices concluded that this section did amend the PRA,
32
stating further that their “conclusion section 3564.1 is an amendment to the
Political Reform Act whose enactment was not in compliance with the
have invalidated the statute under the First Amendment and not found it to
amend or violate the PRA. Id., at 780-782 (Raye, J., concurring and
dissenting).
mandate in the PRA that only the Attorney General may prepare the ballot
summary, then Chapter 267 of the Statutes of 2008, and any other statute
that instead gives this responsibility to anyone other than the Attorney
General, amends the PRA, and must follow the requirements for amending
the PRA to be valid. Under the Constitution, the Legislature may amend
initiative statutes only “by another statute that become effective only when
12
The position advanced by the Attorney General in that case was that “the
Political Reform Act does not regulate the content of ballot arguments and
Government Code section 81012 was never intended to apply so broadly.” Id., at
772.
33
repeal without their approval.” Art. II, § 10, subd. (c). The PRA provides
that the Legislature may amend the PRA, but only to further its purposes and
then only pursuant to specified procedures. Gov’t Code § 81012, subd. (a).
of the initiative statute. In recent years, the California Supreme Court and
the appellate courts of this state, including this Court, have uniformly based
that assessment of scope and effect upon the intent of the electorate in
(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900), courts have ruled,
in this respect, that the primary objective is to determine and give effect to
Briceno (2004) 34 Cal.4th 451, 459. It is also well established that a court
may not interpret an initiative measure “... in a way that the electorate did
they enacted, not more and not less. ” Ibid. Also, the voters’ intent in
34
in its entirety and the statutory framework in which it appears. Briceno, 34
presentence conduct credits, even though the statute was enacted after the
the sentences for murder. The Court agreed that the statute was not an
invalid amendment of the initiative, reasoning that the statute did not
Id., at 48. Ibid. The Court did so even though the Briggs Initiative, unlike
the PRA, did not authorize the Legislature to amend its provisions.
and limitation of those credits was not an invalid amendment of the initiative
conduct credits did “not appear to contravene the electorate’s intent.” Id., at
47, fn. 6.
Court (2005) 128 Cal.App.4th 14, where it rejected a claim that Family
35
partnerships, was void as an amendment to Proposition 22, the defense of
marriage initiative, finding that the statute “does not add to, or take away
unlike the PRA, permitted amendment only by the electors, but this Court
rejected the claim that Section 297.5 was an invalid amendment, finding that
22, an initiative statute, was thus based not on whether there existed any
overlap between the subjects addressed by the initiative statute and the
govern the particular matter that the subsequent law sought to affect.
statute that was alleged to violate Proposition 98. At issue in that case was a
36
funding for child care services within the funding guarantees of Proposition
98. Id., at 1529. Proposition 98, like the PRA, provides that the Legislature
The Court explained that it was “not here concerned with the
Legislature's power over the public school system has been variously
37
Of course, the same is true of the Legislature’s power to provide for
that the Legislature has and may exercise any and all legislative powers not
Id., at 1534.
Under this recent reasoning by this Court and the California Supreme
Court, the issue is not simply whether a subsequent law addresses a subject
that is also touched upon by an initiative statute, but whether that subsequent
law substantively modifies any matter over which, pursuant to their approval
this determination, the courts have been guided by the principle that the
Legislature retains all authority not expressly restricted, and any doubts as to
38
the Legislature’s authority to act must be resolved in favor of its actions.
this respect, this Court must initially determine what intent of the electorate
Attorney General.”
added by the PRA that address the ballot pamphlet in a relatively narrow
way. The PRA specifies that the pamphlet must include the text of the
arguments for and against each measure (Gov’t Code § 88001), it establishes
39
certain contents were to be located (Gov’t Code § 88002), and it sets forth
merely to identify the related materials for each state measure that are to be
placed in the ballot pamphlet and to provide direction for their placement
that the provision of that section that refers to the “official summary
at the time the PRA was adopted, the official statutorily assigned the duty of
preparing the summary. See former Elec. Code §§ 3530 and 3531; Ch. 23,
Stats. 1961. The ballot summary was therefore described in the PRA with
reference to the statute in effect at that time, and the reference to the
Nothing in the PRA supports the inference that this wording instead was
meant to convey to the voters the separate purpose of requiring that only the
40
To the contrary, when the PRA intends to mandate a particular official
the PRA directing the Attorney General to prepare the ballot summary.
PRA merely directs that the ballot pamphlet include the title of each
promoting full disclosure to voters and making the ballot pamphlet “a useful
for information regarding state measures.” Gov’t Code § 81002, subd. (d).
Among the findings and declarations supporting the PRA was the fact that,
at that time, “the ballot pamphlet mailed to the voters by the state is difficult
§ 81001, subd. (g). And, as discussed above, the PRA guarantees judicial
13
The ballot label is not even mentioned in the PRA; only Elections Code Section
13281 provides for the Attorney General to draft the ballot label.
41
review to ensure that the information in the ballot pamphlet is not false or
Code Section 88002, in setting forth the contents of the ballot pamphlet and
Huening, “Government Code sections 88002 and 88004 set forth the order
The PRA plainly did not convey to the voters the intent to otherwise
freeze the contents of the ballot pamphlet or, except as expressly provided
contrary, it provides that “the Legislature may without restriction amend this
chapter to add to the ballot pamphlet … any other information.” Gov’t Code
42
manner in which … measures [are] submitted to the electors,” found in
Section 10, subdivision (e) of Article II, is not affected. While this specific
determine election procedures that are unrelated to the purposes of the PRA.
In addition, if the PRA were construed to govern not only the content
of the ballot pamphlet, but, also, who must draft each part of the pamphlet,
Chapter 1042 of the Statutes of 1991, and amended by Chapter 920 of the
Statutes of 1994, is not included in the PRA and was not enacted pursuant to
Government Code Section 81012, subd. (a). It would likely be invalid if the
43
PRA were deemed to control both the content of the ballot pamphlet and the
with regard to preparing information for the ballot pamphlet (Gov’t Code §§
any given case, the doubt should be resolved in favor of the Legislature's
685, 691, quoting Collins v. Riley (1944) 24 Cal.2d 912, 916; see also
44
Applying here the principles in the case law discussed above, the
voters’ intent with regard to Government Code Section 88002, and thus the
scope and effect of the PRA in this respect, cannot fairly be said to include
from that result that the provisions of Chapter 267 of the Statutes of 2008
specifying the contents of the ballot label and ballot title and summary do
IV
effect of existing statutes, and establish new procedures for submitting this
Third Extraordinary Session, the Legislature placed six measures before the
electors at the May 19, 2009, statewide special election, and one measure at
14
By contrast, as noted above, a statute that sought to supersede the authority
granted by Government Code Section 88006 to the courts to determine whether
particular ballot pamphlet text is false or misleading would substantively modify a
matter within the intended scope and effect of the PRA, and thus constitute an
amendment to that act.
45
the June 8, 2010, statewide primary election. 15 For each of these measures,
the Legislature provided that, notwithstanding existing law, the ballot labels
and ballot titles and summary would be as stated in the bill. See Sections 2
somehow lead to unfair elections is dispelled by the fact that the electors in
language for the ballot label and the ballot title and summary, is thus not
constitutional authority.
15
Judicial notice of this bill is separately requested and is appropriate. Evid. Code
§§ 451 (a) and 459 (a).
16
See http://vote.sos.ca.gov/returns/props/map1A.htm;
http://vote.sos.ca.gov/returns/props/map1B.htm;
http://vote.sos.ca.gov/returns/props/map1C.htm;
http://vote.sos.ca.gov/returns/props/map1D.htm;
http://vote.sos.ca.gov/returns/props/map1E.htm; and
http://vote.sos.ca.gov/returns/props/map1F.htm.
46
V
and irrelevant case law concerning the time period when initiative
proponents drafted their own short title before a measure was circulated for
signature.
In Boyd v. Jordan (1934) 1 Cal.2d 468, 472, for example, the Court
invalidated a proponent’s title for a measure to raise taxes where the title
stated that the title “does not, in our opinion, amount to even a substantial
Id., at 474-475.
47
Clark v. Jordan (1936) 7 Cal.2d 248, similarly concerned an initiative
title found to be invalid under former Political Code Section 1197b. As the
major and natural change in the existing method of taxation -- in fact the title
fails to disclose that any new taxes of any kind are to be imposed.” Id., at
251. Thus, the title was held to be “definitely misleading.” Id., at 252.
Again, there was no mention of heightened scrutiny, just that the statute
incumbents and all others. The case came to the Court only after the
was in this context, where a challenger had demonstrated that the procedure
clearly favored one set of candidates over another, that the Court called for
“close scrutiny.” Appellants have neither raised nor demonstrated any such
48
have proffered no basis in law to support their contention that heightened
CONCLUSION
not specify who is to prepare ballot labels or ballot titles and summaries for
measures the Legislature submits to the voters, the Legislature acted within
its authority in placing within Chapter 267 of the Statutes of 2008 the
specific language to be included in the ballot label and ballot title and
two-thirds vote of each house, and joined by the Governor, it caused this
the constitutional basis requisite to support its contention that the Legislature
the Statutes of 2008 cannot be said to adversely affect the fairness of the
49
be denied insofar as it challenged this legislative decision, and this appeal
affirmed.
By:
Marian M. Johnston
Deputy Legislative Counsel
Attorneys for Real Party in Interest/
Respondent Legislature of California
50
WORD COUNT CERTIFICATION
Pursuant to Rule 8.204, subd. (c), of the California Rules of Court, the
words.
Dated:
________________________________
51
1 PROOF OF SERVICE
(Court of Appeal)
2
CASE NAME: Howard Jarvis Taxpayers Assn. v. Bowen
3
CASE NUMBER: C060441
4
I, Daniel Dizon, declare:
5
I am employed in the County of Sacramento, California. I am
6 over the age of 18 years, and not a party to the within action. My
business address is 925 L Street, Sacramento, California 95814. I
7 am readily familiar with my employer’s business practice for
collection and processing of correspondence for UPS, U.S. Mail, Fax
8 Transmission and/or Personal Service.
9 On July 6, 2009, I caused the following documents to be
served:
10
REAL PARTY IN INTEREST/RESPONDENT LEGISLATURE’S BRIEF
11
on the parties listed as follows:
12
X by placing a true copy thereof enclosed in a sealed
13 envelope with postage thereon fully prepaid, in the
United States mail.
14
15 TIMOTHY A. BITTLE ROSS C. MOODY
Howard Jarvis Taxpayers Deputy Attorney General
16 Association Office of the Attorney General
921 Eleventh Street, Suite 1201 455 Golden Gate Avenue, Suite
17 Sacramento, CA 95814 11000
San Francisco, CA, 94102-7004
18 Attorney for Appellants
19
I declare under penalty of perjury under the laws of the State
20 of California that the above is true and correct.
21 Executed on July 6, 2009, at Sacramento, California.
22
23 Daniel Dizon
24
25
26
27
28