American Federation of Labor-Congress of Industrial Organizations v. Eu

Aug. No. 24746. 1984.] [S.F. OF

AMERICAN FEDERATION OF LABOR-CONGRESS Petitioners, al., et INDUSTRIAL ORGANIZATIONS etc., al., EU, State, MARCH FONG Respondents; as et Secretary UHLER, LEWIS K. Real Interest. Party

Counsel Berzon, Marsha Altshuler, Rubin, Harris, S. Fred H. Michael C. George Altshuler & Berzon and Laurence Gold for Petitioners. Mirell, Witten, Wilmer, E.

Douglas M. Cutler & Steven Pickering, Roger Rice, L. Howard, Nemerovski, Mayer & Falk Canady, Robertson as Amici on Curiae behalf of Petitioners. Hill,

John General, K. Van de and N. Assistant Kamp, Attorney Eugene General, for Attorney Respondents.

Nielsen, Hodgson, Mueller, & E. Mueller and Marguerite Parrinello John Leoni for Mary Real Party Interest. Zumbrun,

Ronald A. John H. Jonathan M. Robert A. Coupal, Findley, Destro, Bolick, Oade, Jr., Clint Miller, Maxwell A. K. Preston E. Robert Wallach of as Amici Curiae on behalf Real in Interest. Party Opinion

BROUSSARD, J. for writ of mandate order original petition This California, Eu, of State of to refrain Secretary State of the respondent action, funds, from of taking any including expenditure public place Initiative the proposed Balanced Federal on the November Budget Statutory be to ballot.1 The effect of the initiative would principal compel California loss of salary, apply of Legislature, penalty limited Congress to convene a for the and singular constitutional convention an amendment to United States Constitution re- purpose proposing act, a balanced federal If the fails to the Sec- quiring budget. retary State is directed to on behalf apply directly State California. The Fifth Article the United States sets out alternative Constitution two methods of It relevant constitutional amendments.2 proposing provides whenever of both shall deem part, Congress, two-thirds Houses “[t]he or, Constitution, shall necessary, Amendments to this on the propose States, Application several shall call Legislatures two-thirds of the Amendments, which, case, a Convention for shall either proposing valid to all Constitution, Intents and as of this when ratified Purposes, part States, Legislatures three-fourths or Conventions several thereof, in three-fourths as the one or the Mode of other Ratification may ,”3 be proposed by Congress . . .

In the two centuries since the Constitution it has been promulgated, was amended only twenty-six Each of times. those amendments was proposed (All by Congress. but one were ratified state by legislatures; Twenty- first Amendment was conventions.) ratified there by have Although been efforts to many call a constitutional convention to amend- propose ments, all have failed to secure of the nec- applications by legislatures essary two-thirds the states.4

In President, recent years a number of the current have persons, including urged enactment of a constitutional amendment a balanced requiring federal budget. Numerous bills have been introduced Congress. Although the Senate on one occasion constitutional amendment approved proposed Olsen, Clerk, 1The respondents Patterson, other City are Carl San Jay Francisco and San Registrar Francisco indicating Voters. Patterson has filed a he disclaimer does not intend to defend the suit. 2For V, drafting Dillinger, Recurring discussion of the of article see The Question of the “Limited” Constitutional Convention 88 Yale L.J. 1624-1630. 3The remaining language prohibited importation any barring article V amendment before any slaves depriving equal representation amendment in the a state senate without its consent. Brinkfield, (1957) (Com. 4See Relating Problems to a Federal Constitutional Convention Com., printing, Judiciary Sess.) Cong., House to propose 85th 1st call for a convention The success, the direct election may of senators came one have induced within state of Congress to submit the Seventeenth Amendment to the states for ratification. vote, two-thirds necessary measure failed the House of Rep-

resentatives; thus the amendment has never been submitted to the proposed states for ratification. meantime,

In the of the amendment to avoid the proponents attempted necessity congressional to the alternative method approval by resorting constitutional proposing amendments—a convention called upon appli- cation of two-thirds of the states. As of this in 32 writing legislatures of the necessary states have to the to call formally Congress such applied a convention.5

Following strategy, have introduced resolutions proponents regularly in the California for a convention to Legislature balanced calling propose amendment. budget The has held on some of Legislature hearings these measures, but it has declined to resolution for a federal adopt any calling constitutional convention. The of the balanced amend- supporters budget ment now seek to action compel the California Legislature popular initiative.6 initiative reads as follows: Directly Sec-

“Initiative Measure to Be Submitted to the Voters. (a) tion One. of the State of mandate that the People hereby California California submit the resolution and same following Congress United States under the Article V provisions the Constitution of the United States:

“That the United States is submit urged propose to the several states an amendment to of the United States the Constitution balanced; with certain be and require, that the federal exceptions, budget States,

“That the United application hereby made to the Congress States, V pursuant Article of the Constitution of the United to call a convention for the sole to the Consti- an amendment purpose proposing tution of the United States to that the fed- with certain require, exceptions, balanced; eral be and budget

“If the of the United States an amendment to the Con- Congress proposes stitution of the United matter to that contained subject States identical 5The applications proposed from the several states differ as to the exact content of the amendment responsibilities and the It is not clear whether there of the convention. currently are applications 32 valid pending for a constitutional convention. states, Washington.

6Similar pending initiatives are in at least two other Montana and ratification, herein and shall submits to the this application same States for effect; no longer force and any and void,

“This and of no shall be deemed null and rescinded application effect the event such and convention not be limited such specific exclusive and purposes;

“This in accordance with constitutes application continuing application Article V of the until least Constitution of the United States at two-thirds of the several States have to Article V made similar applications pursuant Constitution; of the United States

“(b) The of the Senate is to transmit Secretary hereby copies directed this application, its the California to the Pres- Legislature, adoption ident and of the Clerk Secretary United States Senate and the and Speaker of the House of the United States. Representatives

“Section Two. The is added to and through sections following section the Government Code shall amend or control modify, other any laws or of the State of California similar in regulations subject matter, heretofore or hereinafter enacted: . . If

“. the California fails to the resolution set forth Legislature adopt in Section One of to the Congress initiative measure and submit same [this] States, therein, United as before the end of the twen- or required (20th) tieth legislative day after of the said initiative approval by people measure, or if the or session legislature adjourns during regular recesses prior (20th) resolution, twentieth day said without adopting same, having adopted rescinds, nullifies or contradicts res- repeals, said olution, all benefits, payments, compensation, any expenses, perquisites other payments to member of the made any Legislature California pursuant to this Section shall be as to each and until such suspended every legislator time as the California such . . resolution. . adopts Three, (a)

“Section hereby of the State of California adopt measure; (b) the resolution set forth Section One of this If the California forth in Section Legislature fails resolution set of One initiative within of the forty legislative days measure ap- measure, of proval this initiative State of California shall Secretary of transmit the resolution to the President and pursuant this Section adopted Secretary of United Senate and Clerk of the States and the Speaker House of of the of United States. Representatives

“Section Four. amendment of the legislative [Limits initiative.]

“Section Five. If or the afore- any section or subsection of this initiative invalid, mentioned resolution held of the initiative shall be the remainder effect, resolution, be given and the aforementioned to the extent can they or the of other than such or circumstances application persons provision invalid, those as to which it is and to this thereby, held shall not be affected end the of this are severable.” provisions chapter 18, 1984,

On March of State certified Secretary pro respondent had on the posed initiative received sufficient Novem signatures appear Petitioners, ber 1984 ballot. individual California taxpay and organizations e,7 to the in this court for writ ers filed an action opposed original initiativ We the matter before mandamus. scheduled a calendar to consider special the ballots were for the election. printed forthcoming initiative, it for a

We have concluded applies that the the extent so, does con- constitutional convention or to do not Legislature requires V for form to article V of the States Constitution. Article provides United States,” the several not by the two-thirds of applications “Legislatures initiative; free vote their through the envisions people legislators the electoral pro- best to their constituents judgment, responsible through cess, not loss or oth- legislators compelled by salary coerced puppet unwise. erwise to vote favor of believe they may a proposal We also conclude measure exceeds the initiative scope that the (art. under the of the California Constitution power controlling provisions II, IV, 1). 8 and is the adopt art. § § of the balanced bud- “statutes”8—to enact the crucial provisions laws—but initiative do not enact a mandate get They adopt, a statute or law. law which California change a resolution does adopt, amend eventually and constitutes in a which might one step process federal an exercise Constitution. Such a resolution is not Constitution. power reserved under California Organizations; Industrial Labor-Congress are: 7Petitioners American Federation of Division; Women, Lib- American Civil University American Association California State California; California; American of Northern Southern erties Union ACLU Foundation of Committee; State, Amer- County Jewish Municipal Employees; Federation of American International; State; Board Separation for General icans United of Church and B’nai B’rith Church; for the Society, Advancement of Church and United Methodist National Association Inc.; Charities; Council of La People, Conference of National of Colored National Catholic Citizens; Union; Raza; Organization Council of National National National Senior Farmers Christ; Women; Employees Service Society, United Office for Church in Church of Union; Collins; Freehling; Virginia Allen I. Diogo; Edward Rabbi J. International Twomey. Timothy J. power to amend The balanced also includes the the state Constitution. 8The initiative however, statute,” initiative, requires as an which was denominated “initiative budget II, (Cal. Const., registered voters. art. An initiative percent § signatures of (Id.) signatures requires percent the state Constitution of 8 voters. amends Real in voice be party interest that we should “let the argues people’s invalid, heard.” Even if he will give the initiative is the election implies, of a desirability voters the views on the their opportunity express balanced and the budget, may the outcome legislators respond election. This in Cal- misunderstands of the initiative argument purpose ifornia. It is not a is a method of enacting legislation, It public opinion poll. and if the if it measure enact seeks to proposed does not legislation, action which the has no compel legislative compel, electorate power should not be on the ballot.

We do not a the voters of California are without suggest remedy. This is an election one- year, Assembly which all members of the half of the state senators are to against be chosen. Voters for and voters balanced have their budget to make views proposal ample opportunity seats, known to candidates for will and the be able to legislative legislators act on those views in future expressed sessions.

I. Propriety Preelection Review

One year we ago considered a mandamus to whether issue writ of enjoin election special called Governor to vote proposed v. Deuk- Legislature. (Legislature measure the state redistricting 17].) mejian (1983) Opponents 669 P.2d Cal.Rptr. Cal.3d within once only initiative contended that could occur redistricting initiative, which census, the decade and thus that the following federal exceeded the same 10-year second within redistricting period, issued man- reserved We agreed, people. damus to bar the election. Our opinion first discussed the We review. propriety preelection began “ reciting general rule that ‘it more to review usually is appropriate

constitutional and other to ballot or initiative mea- challenges propositions sures after an election rather than to the electoral by pre- disrupt process venting franchise, exercise of the the absence some clear people’s showing invalidity. (Brosnahan v. Eu Cal.3d [Citations.]’ one, Cal.Rptr. salutary P.2d That is a principle where we appropriate (34 665.) adhere to at We then went it.” Cal.3d p. on, however, Eu, to note Justice Mosk’s Brosnahan opinion separate had supra. Justice Mosk stated that the rule general inhibiting preelection review “applies contention that an initiative is unconstitutional because of its substance. If it determined does not have that the electorate proposal the first instance measure must ... (31 excluded from ballot.” Cal.3d at He p. cited examples “election officials have been support exception: ordered not to place 696 the

initiative and on the ballot on the that ground referendum proposals were did not have enact they legis- electorate the to them since power [citations], in a affair municipal lative character the was not subject [cita- tions], or the revision the Constitution rather than amounted to a of proposal (Id.) an amendment thereto [citation].” 658 Legislature Deukmejian, in 34 Cal.3d endorsed supra,

Our v. opinion said, “Here,” as in cases we those the standard described Justice Mosk. Mosk, electorate Justice to the challenge goes power cited “the is, in a The raised in first instance. . . . proposal question adopt sense, (P. 667.) Legislature Since the issue raised jurisdictional.” a redistricting to enact second legislative challenged people decade, was that review preelection proper.9 within a we concluded single likewise present proceeding challenges people initiative. The contend that under article proposed petitioners V Constitution, of the United States no au have constitutional convention, a or man thority apply for constitutional date their an further contend Legislature They submit such application. character, that the a well proposed initiative is not established for ground (see measure ballot Simpson barring initiative from the v. Hite, 125, 36 129-134), Cal.2d and it does not enact a statute II, as article required by section 8 of the state Constitution.10 These conten tions state for balanced proper grounds proposed review preelection initiative.11 budget 658, Deukmejian, supra, 34 preelection Cal.3d 9The exercise of review in v. on a state initiative unprecedented decisions had elections was not an act. Previous barred 787]; (1944) (McFadden Gage (1948) v. Jordan v. Jordan 32 Cal.2d 330 P.2d [196 measure 387]). elections local initia

23 794 P.2d court decisions barred Cal.2d Other have [147 (1961) 225]; (1950) Mervynne v. Simpson Hite 125 Acker (e.g., tives v. 36 Cal.2d P.2d [222 City 340]) v. Palo Alto Cal.App.2d Cal.Rptr. (e.g., 558 Fishman 189 referenda [11 (1978) 326]). Cal.App.3d Cal.Rptr. 86 506 [150 postelection review. legal problems might 10Wenote also the arise practical convention; isit adopts applying Section 3 of the initiative resolution for a constitutional (1921) (cf. 256 adoption immediately Dillon v. Gloss U.S. arguable that this is effective 994, 997, 510]) application validity of that there L.Ed. 41 S.Ct. [65 (1939) (see Miller within Coleman v. purview after is not an issue of the courts 695]). provisions of section U.S. 433 L.Ed. 59 S.Ct. A.L.R. would legislative days the election. It suspending legislative go into effect 20 after salaries stay period. within possible petitioners petition for for mandate and seek to file a will have more time argument one usual review—that the court postelection But for will the court have to act issues and some force when consider the decide the case—loses period following the provisional very limited time application on an relief within election. scope is within the suggests in some cases even if a measure 11Language measure courts discretion to examine the before power, equitable retain the initiative provisions of the are compelling showing that the substantive election (See County Harnett Sacramento 195 Cal. P. clearly invalid. real Although interest recites party sovereign- the principles popular which led ty establishment of referendum Cali- the initiative and fornia, those do not value in before the principles any peo- disclose putting a measure ple have no of an invalid they to enact. power presence on attention, measure the ballot steals time and from the numerous money valid on the same will some and frus- propositions ballot. It confuse voters others, invalid, trate and an ultimate that the measure is coming decision measure, after the voters have voted in of to denigrate favor tends legitimate use of the initiative procedure.

II. Issues V Under Arising Article the United States Constitution of Our discussion federal constitutional issues three proceeds steps. First, we inquire whether the term as used in article V refers “Legislatures” elected representative body to enact the laws of state—in Califor- nia, the state Senate and to the whole of the state Assembly—or power, including the reserved it of initiative. Our conclusion that refers only to the body makes it clear that the cannot representative people by initiative to apply directly for a constitutional convention. We Congress then turn to two whether the remaining questions: can (a) compel Legislature to for a constitutional conven- apply Congress (b) tion or urge to submit a Congress amendment the states. proposed first,

We however, must address the contention raised briefly Bell, distinguished (former amici curiae General Griffin former Attorney Ervin, Senator Sam Noonan) and Professor John that none the federal constitutional issues raised here justiciable. is cite Coleman v. Miller They (1939) 307 972, 695], U.S. 433 L.Ed. 59 S.Ct. A.L.R. [83 which the court refused to adjudicate the of Kansas’ ratification of validity Child Labor Amendment. The Coleman first chal petitioners lenged the of the lieutenant a tie vote on authority break rati governor fication; the court divided on of that They issue. equally justiciability amendment, next asserted that once Kansas could not having rejected court, later ratify; the the historical Fourteenth relying precedent Amendment,12 held this to be a within the exclusive au- political question 445]; (1972) Note, Gayle 628]; v. Hamm 25 Cal.App.3d Cal.Rptr. Scope 1717, 1725-1729.) the Initiative and Cal.L.Rev. We of did not base our Referendum California doctrine, present upon decision to hear case before the election but instead principle relied allegations charging that a measure exceeds the initia- tive are properly justiciable before election. 20, 1868, July 12On Secretary Congress State notified the that three-fourths states, had Jersey, states ratified the Fourteenth had Amendment but that two Ohio and New subsequently rescinded their was aware that three southern states ratification. also initially ratify congressional had governments refused until new were created under duly programs. reconstruction Congress nevertheless declared the Fourteenth Amendment part ratified and a of the Constitution. that Kansas had not thority the Congress. Finally, petitioners argued submitted time after was ratified the amendment within a reasonable Gloss, where states. Dillon U.S. The court reaffirmed time, but within a reasonable it said that an amendment must be ratified also a ques held that the of a ratification was particular political timeliness further, as Four went concurring justices tion entrusted the Congress. from entirety, “The its serting [amending] ‘political’ itself process Constitution, and is submission until amendment becomes part (307 U.S. any point.” or interference at subject guidance, control judicial Black, J.) 1385, 1399], L.Ed. conc. opn. since change considerable doctrine has political question undergone 486 U.S. (See Coleman v. Miller. Powell v. McCormack 395 [23 491, 1944]; (1962) 369 U.S. 186 L.Ed.2d 89 Baker v. Carr [7 S.Ct. 663, have questioned 82 and commentators Judges L.Ed.2d S.Ct. in these whether Coleman Miller is consistent with the criteria established v. (D.Idaho 1981) 529 (See F.Supp. later cases. State Idaho v. Freeman of 1107, 39, 22]; v. moot, 103 Dyer vacated as 459 U.S. 809 L.Ed. S.Ct. [74 Intentions, Note, (N.D.Ill. 1300-1303; 1975) 1291, Blair Good 390 F.Supp. Inventions, (1979) 58 V New and Constitutional Conventions Article 131, 158-162.) Tex.L.Rev. authority on

But Coleman v. Miller remains assuming controlling that a to decide whether issues decided—that alone has not does holding ratification a is timely—that submitted valid and Smith, (1920) 253 U.S. control in the Hawke No. present setting. v. later (discussed length at L.Ed. S.Ct. 10 A.L.R. 1504] that for the 700-701)), is direct opinion (post, authority proposition pp. on ground court election ballot can remove a from a state proposal that a court V, inference that it and by necessary does conform article of ami adjudicate Contrary suggestion has that authority question. v. ci, Hawke Miller did not overrule Coleman v. majority opinion Smith; to sue issue of standing it cited the decision an favorably earlier 1388-1394]), hinted never (307 U.S. at 438-449 L.Ed. at pp. pp. Smith issue. nonjusticiable that Hawke v. decided a Blair, Stevens, now a justice In Dyer Judge v. supra, F.Supp. v. Court, Coleman the effect of of the United considered States Supreme issue in that V Miller Court article decisions. earlier Supreme more than constitutionally was that case whether a state could provide Reject- amendment. ratify a constitutional was simple majority required is a nonjustici- amending ing every process argument aspect majority that “since a able Stevens stated political question, Judge and since v. Court refused to accept position [Coleman Miller] V, Court has on several under occasions decided article questions arising contentions, even in the not one face of is ‘political argument question’ 1299-1300.) deciding which a District In Court free accept.” (Pp. law, federal bound questions constitutional state court is equally Court decisions. controlling Supreme

Judge Stevens went on to light consider the question justiciability McCormack, Carr, Powell v. 395 U.S. Baker v. supra, Miller, 186, and U.S. He distin- supra. in Coleman v. majority opinion Miller, guished Coleman v. that decision rested on the historical precedent ratification, congressional adjudication of the effect of withdrawing the difficulty of time what constituted a reasonable for ratifi- determining said, cation. Such precedents he had no relevance to issue problems, Blair—and, in Dyer add, we must are irrelevant to the issue in equally the present “[djecision case. Stevens Judge question observed that presented no more requires than Constitution. Such interpretation a decision falls . . within the traditional role of the . . . . squarely judiciary. ^[1] The mere fact that a court has little or nothing but the language Constitution as guide its mean that the task of does not interpretation 1301-1302.) construction is He then con- judicially unmanageable.” (Pp. cluded: “We are the used in article V persuaded that word ‘ratification’ as of the federal consistency Constitution must be with kind of interpreted the is that characteristic of as decision judicial, opposed political, making.” (P. 1303.) We are in similarly that the word ar- persuaded “Legislatures” ticle V is subject judicial construction. therefore,

Concluding, that the issues here raised are we turn justiciable, to the task of the of article The clause construing language V. application of that article on the of the provides Congress ... Application “[t]he States, of Legislatures two-thirds of the several shall call a Convention for . proposing Amendments. . .’’No have decided whether decisions reported term “Legislatures” this clause the reserved of ini- powers includes however, tiative and referendum.13 The term also “Legislatures,” appears in the of article portion V which that an amendment becomes “val- specifies id all Intents and of . . . when ratified three- by Legislatures Purposes 13Only Petuskey two decisions have article V. In v. application considered the clause of Rampton (D.Utah 1969) judge malapportioned that a F.Supp. the district ruled legislature could not apply propose for a constitutional convention to an overturning Supreme amendment reapportionment Court’s decisions. The Tenth Circuit judgment ground only three-judge jurisdiction reversed the on the would have court enjoin (Petuskey Rampton the state transmitting application Congress. from its to the v. (10th 1970) den., Cir. 431 F.2d cert. 401 U.S. L.Ed.2d 91 S.Ct. [27 decision, (1977) reported Opinion The second 373 Mass. 877 Justices to Senate of 1226], governor legislature. N.E.2d held that a application could veto States,”

fourths of have construed the meaning the several and several cases decisions. of turn to examine these “Legislatures” provision. We cases, 182 Cal. Many Barlotti Lyons, including 282], case, of the Eigh- P. California concerned the ratification only When California teenth Amendment the sale alcohol. Leg- prohibiting amendment, islature other petitioners presented ratified the Barlotti and to trans- referendum to the refused registrar voters. petition registrar State, mandamus sought mit the petition Secretary petitioners rati- from this whether the legislative court. Our noted two issues: opinion Constitution, and whether ref- fication was conclusive federal under the of the were intended to res- provisions apply erendum state Constitution the federal olutions amendment. It addressed constitutional ratifying issue, it decisive of the case. finding court, defined the nar-

Chief Justice for a unanimous Angellotti, question as of the word as rowly, ‘legislatures’ one as to the “being simply meaning of the used in the three-fourths legislatures clause ‘when ratified meant (P. “If those was several states’ of article V. . . .” words of the several bodies with the representative law-making power invested states, time the constitution ... which existed at adoption existed, states, as distin- each of the since so several and which have ever states, is there nothing from the guished respective law-making power discuss, the consti- left to for with to the term ... attributed meaning of different tutional so not to admit provision unambiguous as plain the United constructions. situation would then be that States, ., them- ‘have excluded the constitution . . framing ratifying immediate to it.’” selves from direct or in amendments any making agency 578.) (P. “It certainly

The first of the term. opinion ordinary meaning examined the not in of the term ‘legislature’ consonance with the ordinary acceptation by it selected to take as otherwise than a meaning body representative state, of for law-making a state and with the of people invested to review whatever themselves reserved people ” 578.) examined (P. of It then action that or initiate and laws. body fre- Constitution, “legislature” appears the California in which the word Even Assembly. Senate and with the of the quently, always plain meaning and ref- IV, of initiative former section which reserved the right article erendum, “The as Assembly referred to Senate and ” in the United of The use of term State California. reviewed the opinion Constitution, referred to clearly all cases States that almost observing concluded that the term the court body. a representative Consequently, of as distin- “some official a state body article V means “Legislatures” guished from state itself or the of the state or the whole law- (P. 582.) making power state.”

Chief Justice direct vote Angellotti recognized that argument popular ais method He of will. that the superior ascertaining replied popular “is, argument the final some analysis, day based more upon present be, what conceptions the law in this than the inten- regard ought therein, tion and, of the framers of the our constitution as expressed mind, so expressed clearly as other conclusion than the one preclude any we (P. have reached.” 584.) The court dismissed the accordingly petition mandamus, thereby a referendum election the ratification precluding of the Eighteenth Amendment. courts Maine and filed with Barlotti Michigan agreeing opinions

that article V precludes a referendum on the of a ratification constitutional amendment (Opinion (1919) Justices 118 Me. 544 A. [107 1412]; A.L.R. Decker (1920) v. State Mich. 565 Secretary [177 388]), N.W. Arkansas, Colorado, while Oregon reached same result (Whittemore on state constitutional grounds (1919) Terral 140 Ark. v. 686]; S.W. Prior (1920) 729]; [215 v. Noland 68 Colo. 263 P. Herbr- [188 ing (1919) v. Brown 92 Ore. 176 P. Ohio Washington, [180 however, upheld (Hawke (1919) referendum elections. v. Smith 100 Ohio St. 385 400]; N.E. Mullen v. Howell 107 Wash. 167 P. 920].) The United States Court selected the Ohio decision for Supreme and, review decision, a unanimous held unconstitutional a provision the Ohio Constitution which declared ratification a federal constitutional amendment was until incomplete refer- approved popular Smith, (Hawke endum. supra, 253 U.S.

The opinion by Justice follows the Day reasoning same as of our court in Barlotti. ratification, He first observes “Both methods of legislatures conventions, call for action deliberative assemblages rep- resentative of the which it will of people, was assumed would voice the [|] . . . people. framers a dif- adopted Constitution have might ferent method. Ratification might have been left to a vote of the people. [However, . . . of of the article is and admits no language the] doubt plain, in its It interpretation. bodies, is not the legislative function of courts or state, national or to alter the method which has the Constitution fixed.” (Pp. 226-227 L.Ed. at p. [64

According Justice Day, “The for really determination is: question What did the framers of the Constitution in mean ratification requiring by ‘Legislatures’? That was not a term of uncertain when meaning incorporated into the Constitution. What it meant when still means for the adopted body of A then the Legislature was

purpose interpretation. representative Consti- which made the laws of the The term is often used the people. I, 2, with tution this evident Article the meaning. qualifications prescribes § of the nu- electors of as for electors of most congressmen those ‘requisite I, that merous branch of the Article senators legislature.’ provided state § thereof, be and this was the shall chosen each State the by legislature of the Amend- method senators until the of Seventeenth choosing adoption of ment which for vote the by peo- made the election of senators provision of the most the electors to have the electors ple, qualifications requisite numerous of and the States Congress branch the state That legislature. from entirely legis- understood that this election the was distinct by people the legis- lative action is shown the of the amendment provision giving by make lature of State the to authorize the Executive to any temporary was the election. It until shall fill the vacancies appointments by people aware, of the making never so we the suggested, far as are that purpose a refer- by office of Senator the could be by accomplished elective people of the endum vote. The of the purpose amendment necessity accomplish IV In Article is in the of the amendment. election shown popular adoption violence the United domestic every against States is State required protect the the of the when legislature of or Executive upon application legislature, legis- be the of the several cannot convened. Article VI members requires affirmation, of oath, be Constitution latures to bound by support I, jurisdiction the United States. exclusive By Congress given Article § of the State over all of legislature consent places purchased by IV, that no new States shall which the same shall Article provides be. § of the legislatures be carved of old of the out States without consent States concerned. clearly Constitution

“There can be no question that framers instrument referred understood and in which that used terms carefully direct intended that they the action of the States. When legislatures the use action were no less accurate should had people they the House out such The members apt phraseology carry purpose. several were to be chosen Representatives required 875-876].)14 I, States. Article 2.” at pp. 227-228 L.Ed. (Pp. § referred to in article V argued Ohio the term “Legislatures” state, as- between representative however divided I, “in representatives provides electing senators and 14Article section that the manner thereof, may legislatures but that State shall be the respective each determined , (1916) 241 L.Ed. regulations. . . . alter such Davis Hildebrant U.S. . .” 708], referendum. Hawke redistricting proposal 36 S.Ct. held that Ohio could submit a pur legislation, enacted distinguished ground congressional on the v. Smith case article, in the right congressional districts granted to this had each to fix suant thereof, permitting the purpose provided by language chosen for manner laws 877].) (See p. L.Ed. at pp. initiative and referendum. 253 U.S. at 230-231 [64 semblies and the Justice that the was fal- people. argument Day responded lacious, because by “ratification a State a constitutional amendment is not act of legislation within the of the word. . . . sense proper [f] act of ratification the State the Federal Con- by authority derives its from stitution to which the State and its have alike assented.” 229- people (Pp. L.Ed. at court reversed p. accordingly judgment requiring submission the ratification to referendum. popular filed, Many years have since Barlotti and passed Hawke were but those decisions (See remain the authority. unquestioned controlling Opinion Senate, 1226.) Justices to Thus in supra, N.E.2d when the California Attorney General asked was whether the voters could Amendment, rescind the Legislature’s ratification of the Equal Rights Hawke, he cited Barlotti and “The California electorate cannot replied: effectively rescind the Legislature’s ratification the initiative be process cause amendments to the federal constitution subject are the initiative or referendum process (58 (1975) 830, California.” Ops.Cal.Atty.Gen. 831.) earlier,

As we noted the cited cases refer to the role of the not in ratifying, proposing, constitutional amendments. and com- Courts however, mentators agree, that the “Legislatures” term bears the same meaning throughout Court, article V. The Massachusetts Judicial Supreme in holding that a cannot governor veto an for a constitutional application convention, declared that the word in the ‘Legislatures’ ratification “[s]ince clause of VArt. does not mean the whole of the State legislative process ., . . we are of the that the word opinion in the ‘Legislatures’ application clause, likewise, does not mean the whole legislative process.” (Opinion of Justices, Ervin, 366 N.E.2d 1228.) Senator explaining proposed legislation convention, to regulate a constitutional stated that “[cjertainly the term ‘legislature’ should have the same both the meaning clause application and the (Ervin, ratification clause of Article V.” Pro- posed Legislation to Implement Amending the Convention Method Constitution (1968) 875, 889; Bonfield, Mich.L.Rev. see Proposing Constitutional Amendments by Convention 39 N.D. L.Rev.

We conclude that when article V to an refers application “Legislatures” states, two-thirds of the constitutional con calling vention, it refers to the bodies those states. representative lawmaking Any application directly by the their reserved people, through would not power, conform to article V.

Section 3 of the Balanced Initiative states that the Budget convention, that, resolution calling for a if constitutional provides the Sec- to Legislature legislative days, fails the resolution within adopt the retary Congress. State shall transmit the resolution so to adopted discussed, resolution Under the clear that a decisions it seems previously action the and transmitted to without adopted directly by people the would invalid under article V. by initiative, however, action,

The direct bypassing Legislature, proposes as a The in the provision mandating last resort. thrust of measure is conven for a constitutional Legislature to a resolution applying a state tion. The arises whether forma action thus question pro measure, is sufficient under an initiative legislature, acting compulsion with article V. comply The but a number of decisions itself one of first question impression, Amendment, wom offer The of the Nineteenth guidance. giving ratification vote, en was on the that two right legislatures state challenged ground free their restricting ratified in violation of state constitutional provisions dom of that the state legislature action. Missouri Constitution provided to local self- could assent to that would any impair right amendment could that the provided legislature the Tennessee Constitution government; Supreme not act intervened. The amendment until an election upon any state legis Court function of a rejected holding that challenge, “[t]he . . Federal Constitution . lature amendment to the ratifying Constitution; it transcends is a federal function derived from Federal (Leser of a v. limitations State.” any sought be imposed 217]; 42 S.Ct. see Garnett 258 U.S. L.Ed. 575; Walker 1973) also (M.D. F.Supp. Trombetta v. Florida Fla. (Tenn. 1972) constitutionally pro Dunn If a cannot 498 S.W.2d amendment, hibit its from constitutional legislature ratifying proposing do so. it cannot by implication legislature compel In the Massachusetts Two other cases advisory involve initiatives. re- Court a proposed Judicial was asked rule Supreme the Eigh- the state’s questing congressional delegation support repeal ini- was not a proper teenth measure Amendment. court held with the in connection tiative on both state and stating, federal grounds, are excluded latter voters of the several States ground, “[t]he from terms art. 5 of the of the United States participation Constitution (1928) 262 Mass. of its the Justices process (Opinion amendment.” 603, 606 N.E. ad- an initiative considered Fifty years later Nevada Supreme Court Amendment. vising ratify Equal Rights the state whether legislature Smith, 221, and Leser 253 U.S. The court Hawke v. distinguished Garnett, supra, v. 130 the that “does not U.S. on ground proposal referendum, a a concern nor it limitation binding impose does ratification, . . or or legislature. may against . vote for legislature [T]he all, refrain from to the regard advisory on ratification at without voting (Kimble (1978) 162].) vote.” P.2d v. Swackhamer 94 Nev. [584 When of the from the United Nevada initiative a opponents sought stay Court, States Supreme justice, Justice as circuit denied Rehnquist, sitting with the order: . . contention ... is stay following . “Appellants’ my of substantial of character the ref- opinion because the nonbinding . erendum. . . Under these . . . Leser v. circumstances . . reliance . [on] Garnett . and . . Hawke v. Smith ... I can obviously ... is misplaced. see no constitutional to a advisory obstacle referendum of nonbinding (Kimble sort.” (1978) v. Swackhamer 439 U.S. 1387-1388 [58 225, 228, L.Ed.2d 99 S.Ct.

The Massachusetts and Nevada on of validity cases squarely disagree initiative, a (and but nonbinding both cases Justice Rehnquist’s especially order) a clearly that initiative would offend article V. Real imply binding interest, however, party a In contrary cites decision with re implications, Opinions (1933) the Justices 226 Ala. 565 So. The Alabama 107]. [148 Court Supreme was asked to rule on a del- statute proposed requiring to a egates convention to fol- Twenty-first Amendment ratify pledge Smith, low the result of a statewide Quoting vote. Hawke U.S. 875], 226-227 L.Ed. the court said the framers where of the Constitution “assumed” that and conventions “would legislatures voice the will of the the Alabama that the function people,” court reasoned of deliberative bodies in amendments was to as- ratifying proposed merely certain and carry out the will. A and popular binding direct instruction concluded, delegates, would more fulfill that func- truly efficiently tion.15

We whether the court question reasoning the Alabama applies act of a legislature in ratifying analysis amendment. proposing the federal Constitution set out in indicates that the Barlotti and Hawke drafters of that document to vest deliberately chose the power proposal were, and ratification in state instead of the The framers legislatures people. course, aware of the body difference between a representative whole; electorate as they body, knew that a deliberative legislature party 15Real Opinions interest also cites In re Justices N.C. 474], upheld validity S.E. That decision proposed bill which would have allowed Twenty- voters decide whether to call a state convention consider ratification convention, called, first It appear delegates Amendment. does not were to such a if required way to vote one or the on other the ratification. evidence, debate to conduct examine empowered hearings, proposi- tions. Its to hold views may reflecting members be assumed generally will, but no one with their constituents agree popular expects legislators Yet, measure every undoubtedly before coming body. although aware that of a amend- concerning the views deliberative body voters, ment from those of a framers of might majority depart the Constitution chose to no direct role the amending voters give national alone the to for a con- power apply received process; legislatures vention, conventions, chose, the or as to Congress legislatures ratify amendments.16

The conclusion we from fact is that the drafters wanted only can draw the of a the to deliberate the hands with amending process body and, a not the views of amendment after proposed considering only but merits to render a considered judg- proposition, A under article ment. rubber could fulfill its function stamp legislature V of the Constitution. not, otherwise,

We a or its by compel conclude that state initiative may convention, for a or to refrain from such to constitutional legislators apply V, own con- action. Under article be free to vote their must legislators sidered to the elec- through their constituents judgment, being responsible Initiative, it toral to the extent that process. Balanced Budget mandates for a constitutional Congress the California to to apply Legislature convention, Constitution. violates article V of the United States language set out in 1 of the initiative includes resolution section amendment, to a balanced merely Congress budget petitions adopt V. Since and does not to article attempt invoke application process Legislature that does not to bind or state language purport Congress V, analogous undertake under article it is legal act any significance 704- (Ante, pp. initiatives earlier in this advisory opinion. discussed noted, conflict, (Opinion As with one case we there the decisions Justices, violates 603) an advisory Mass. that supra, ruling Swackhamer, 616) P.2d V, (Kimble article but later a decision an such initiative. upholding conventions to considered state argued 16It has been that the of the framers Constitution the ratification directed that representative legislatures,

be more than and for that reason state (See Sprague States v. original by of the discussion United Constitution conventions. so, 640, 644, significant If it U.S. L.Ed. A.L.R. rep the more wording permits V between ratification Congress of article choose legislature permits but legislature, or the representative resentative convention less apply for a national convention. urging or resolution, people, A the Legislature whether an act of is not amendment constitutional approve proposed for a national not call resolution does constitutional Such a significance. We therefore amendment, convention, an amendment. ratify propose Swackhamer, does conclude, resolution that such in accord with Kimble v. Bal It follows not raise issue under the federal Constitution. any Initiative, Con urging a resolution merely adopts anced insofar as Budget states, mandates the amendment gress submit constitutional resolution, article V. not offend does are initiative measure Our conclusion that crucial provisions other, Constitution, subordinate but that invalid under United States not, Since the severability. are raises necessarily provisions question constitu- with our analysis same arises in connection question issues, later in this opinion. tional we defer of the matter until discussion HI. Issues Under the Constitution Arising California At the Balanced Initiative contains three substantive sections. Budget 1, core calls the which initiative is resolution set out section amendment, to Congress to submit a balanced budget applies Congress 1 for a constitutional amendment. Section convention to such an propose then mandates the 2 provides to this resolution. Section Legislature adopt if the the 20 Legislature days, leg- does not within comply legislative islators’ 3 adoption is Section compensation suspended. provides resolution State transmit it to Secretary and directs the of to people, 40 legislative days. if the fails to it within Legislature adopt IV,

Article section 1 of declares that the California Constitution “[t]he which of this State is vested in the California power themselves consists of the Senate and reserve to Assembly, but people 8, II, subdivision initiative and Article section powers referendum.” to (a) of the electors defines initiative: “The initiative is power or statutes to and to adopt reject and amendments the Constitution propose II, defines (Italics added.)17 them.” the referendum Article section 9 ” terms; similar to statutes. reject “the of the electors power approve added.) (Italics Constitution, the

Prior relevant 1966 revision of California IV, 1) (then of art. to the part reserved provision § (the initiative) “laws” or to any passed by Leg- “acts” propose reject refers amendments in article II Constitution” phrase “amendments 17The Constitution, application present case. and has no 708 (the

islature referendum). The California Constitution Revision Commission selected term “statutes” as a statement of the reserved power, simpler without a change (Cal. Com., meaning. Const. Revision Re- Proposed vision (1966) IV, Const. The 1966 also article p. revision amended (now 8, section IV, 15 (b)), art. had subd. declared part § bill”; “No law be shall passed the new version reads “The except Leg- islature may make no law enact no statute except by may statute except by bill.”18

The question we face is whether Balanced Initiative Budget proposes “statute” within II of article the Cali meaning fornia Constitution. In bear in we must mind resolving question, the declared “duty the courts to jealously guard” the people’s right (Martin 115, initiative and (1959) referendum. v. Smith 176 Cal.App.2d 307]; Builders, 117 Cal.Rptr. Associated Home Inc. v. City [1 Livermore 582, (1976) 41, 473, 18 Cal.3d 92 P.2d A.L.R.3d Cal.Rptr. [135 has our been a liberal long judicial construction policy apply “[I]t to this wherever it is in order that the not im challenged right Acker, 558, 563; annulled.” properly (Mervynne supra, Cal.App.2d Hamm, 250, 258; Gayle v. Associated Home Build Cal.App.3d ers, Livermore, 591; v. City 582, Inc. see supra, 18 Cal.3d Amador Valley Joint Union (1978) Sch. Dist. Bd. High v. State Equalization 1281]; Cal.3d Diego 583 P.2d San Cal.Rptr. Bldg. Contractors Assn. v. Council fn. 3 City 13 Cal.3d 146, 973], 529 P.2d Cal.Rptr. A.L.R.3d dism. U.S. 901 app. L.Ed.2d 96 S.Ct. however, Even under the most liberal the reserved interpretation, powers initiative and referendum do not all actions encompass possible limited, II, a Those are legislative body. powers under article rejection or adoption “statutes.” As we shall it does not include explain, a resolution which of the wheth expresses body, wishes merely enacting er that is or as one a expression purely precatory process serves step which lead to a may federal constitutional amendment. law;

A statute declares if enacted it must be ini Legislature by Const., (Cal. IV, tiated a bill by 8), art. with formalities certain passed § 18Before the 1966 provided revision the California also for “indirect Constitution (See IV, 1, ¶ 4.) initiative.” former propose Legislature, art. could voters a bill to § and if the days, failed enact that bill within 40 the matter was resubmitted to approval rejection voters for general Report at the next election. The of the deleting provision, noting California Constitution Revision Commission recommended that it unnecessary added an step process, the initiative and as a was seldom used. result (P. 52.) IV, 10). Resolu- (art. (id.), signature § to the Governor for and presented resolving of the views serve, express tions other purposes, among 379, 389- Cal.L.Rev. Drafting Bill Mason, (1926) 14 Legislative (See body. enactment, is 391.) formality same A resolution does not require for the Governor presented approval.19 is bills resolutions between “It is said that distinction frequently accurate, this is probably resolutions not law. As a are generalization on all persons if actions which legislative operate ‘law’ meant those and sustained be enforced the executive society, department, must (Sands rev. ed. Sutherland, (1A Construction judiciary.” Statutory of the states “In and some 1972) The writer adds that p. as law” of bills joint operate resolutions enacted with all the formalities California, states, (id.), including “spe- but states in that in most a footnote treated as being from cific a resolution prevent constitutional provisions (P. 4.)20 law.” fn. P. City Richmond (1915) 170 Cal. 605 Hopping Council of In It first

977], the court to a referendum. this distinction applied municipal to “acts declared that the referendum state law under applied from a 609), distinguished must be in the form of a statute” as passed (p. resolution, Charter to conform joint and construed Richmond City of the the invalidity state This would seem to foreshadow practice. language 670], case, California P. the distinction 19Inone Mullan v. State 578 [46 Cal. Legislature, request proved between a statute and trap litigant. a resolution for Governor, with authorizing negotiate had Mullan to passed joint Captain resolution government arising out of the expenses the federal for and claims reimbursement percent Mullan provided Captain Moduc Indian War. payment The resolution collected, made, Citing filed suit. article payment of the amount and when was not Mullan IV, bill,” except by the court provided passed section which then shall be that “No law resolution,” said, expressing competent denied his claim. method of “A mere “is not will, law, than expression and bind others where that is to have the force of may have been intended adopting the members house or houses The fact that it it. solely purpose simply law ‘Nothing subserve such can make no difference. becomes . . . be, men, possess they express legislative power because who will it unless shall which invests them appointed their determination in the instrument to that effect mode forms has rendered essential.’” power, with under all the which that instrument 584-585.) (Pp. 1943, In opinions Attorney of on this matter. 20Two the California General comment study Los An Assembly a government department resolved that should undertake a purpose. funds for that geles Airport; inquired it could certain department whether use legislature, or for that Attorney single “A replied The General resolution of a house matter, resolution, appro . of law. . . [An a concurrent does the force and effect not have 438, (1 Ops.Cal.Atty.Gen. priation] only regular statute. accomplished can be a ...” Constitution, cer with (1943).) years repeated: Three “The Attorney later the General A resolution exceptions, provides passed except by law bill. [Citation.] tain that no shall be (7 Ops.Cal.Atty.Gen. Legislature.” merely expresses the views of both branches of the (1946).) referendum, but the court then at in looked more the resolution closely The question. city council had a resolved to land and gift money, accept but that was gift (and conditioned the city additional using money funds) city to build a new city hall on the site donated. this reso- Viewing lution as the equivalent an ordinance the site of the hall and city fixing appropriating money its construction—an exercise of legislative power— the court held 613-615.) the resolution (See to referendum. In subject pp. words, substance, other is label, controls, it not the and if a “res- law, olution” does enact a is subject it to referendum. states, decisions other the ratification of involving Eighteenth

Amendment 700-701), discussed in (ante, earlier addressed opinion pp. the specific a question whether resolution a constitutional amend- ratifying ment falls (Barlotti within the reserved of initiative and referendum. v. Lyons, supra, Cal. the California concerning Eigh- decision Amendment, teenth noted but did not a decide the whether reso- question lution a ratifying constitutional amendment within the reserved was referendum.) decisions, The majority of state constitutional construing provisions from indistinguishable the California have concluded provision, that such a resolution is not subject vote. popular Terral,

Whittemore v. held supra, Ark. that the word “acts” in (the Const.) Arkansas Constitution same word as in the Cal. pre-1966 497-498.) “means an enacted a law—a statute.” The ratification of (Pp. amendment, said, proposed constitutional but in the en- court a step law; actment of a in it does not subject itself enact law is thus (P. 499.) referendum. Noland,

The court also construed the word “acts” Prior v. law, Colo. 263. statute, “It is sense that the term ‘act’ is used in (P. the initiative and referendum.” term is that the Noting used connection with “bill”—as also was California pre-1966 provisions—the court stated that “A resolution is not bill. [Citation.] distinctions bill between a and a ‘The resolution are well defined. . . . con- current (Id.) resolution . . . cannot held to be a law of the state.’” State, In Decker Secretary the court con- supra, 209 Mich. Constitution, cluded that “the framers of the the use [Michigan] word ‘act’ . . . had in mind a or law with the passed formality statute 576-577.) by the required by Constitution and the governor.” (Pp. approved The act of the state in a legislature federal constitutional amend- ratifying ment “is not the in making of law an ‘act’ as understood legislative (P. 577.) parlance.” ratifying that the resolution

The declared Maine Court likewise Supreme it “was because the not to referendum Amendment was Eighteenth subject of law. It the force act, having nor a resolve neither a act public private Justices, 118 Me. in supra, was no sense the legislation.” (Opinion of Brown, Court, supra, 550.) Herbring the in Finally, Oregon Supreme the initiative and [establishing Ore. that sections concluded “these resolutions, laws, and not to legislative apply only proposed referendum] memorials, (P. 180.)21 and the like.” effect, the Massachu- the Amendment took

Eight years Eighteenth after the an initiative requesting setts Judicial Court considered whether Supreme that con- amendment repeal state’s congressional delegation support “The word initiative power. stituted a law” within the state’s “proposed ‘law’,” of conduct with advised, rule ap- justices “imports general authority possessing means declared some for its enforcement propriate it entreaty; command and not over the sovereign power subject; implies is of opinion possessing different from an ineffectual something expression The text announced. no sanction to observance of the views compel a gen- not does prescribe law this initiative proposed accompanying petition voters on eral of opinion by rule of conduct. It invites a declaration merely no subject possess part over which the Commonwealth Mass, (262 605.) concluded that the at court sovereign power.” p. was not within the proposal reserved power.22 1920’s, as of the was under constitutional majority Thus view that California, of initiative provisions such as that the reserved power referendum was limited to as constituted the exercise of such measures kind measure that would be create law—the power binding bill, both of the legislature, pre- introduced houses duly passed by extend to sented reserved did not governor That signature. amendments, a state in ratifying ratification of constitutional since constitution, was its own amendment under asserting legislative power (Mullen v. How Washington Supreme Court. contrary 21The decision came from ell, supra, 920.) argument legislature ratified 181 P. That court reasoned was subject to referendum self- amendment resolution and that a resolution was not except by no to act defeating legislature because under the state had constitution (This ratify a constitutional argument legislature’s power bill. federal assumes a state document; subject in the amendment derives the state is to limitations from constitution and Garnett, contrary.) Washington court further Leser v. held to U.S. it, resolution, legislature adopting that was reasoned that it was not the but the act subject to referendum. Secretary of the Commonwealth . . . opinion 22The also noted that mandate “[t]he congress this common copies ‘transmit to each from representative ... senator law; it relates to a subsidiary wealth’ purpose and incidental to the main force; something legal matter convert into a law standing possesses alone no it cannot Mass, (262 p. itself ineffectual.” at 712

but a power of exercising delegated article V the legislatures (See Garnett, federal 130, Constitution. Leser v. 258 U.S. 137 supra, [66 505, 511].) L.Ed. Neither did that extend to resolutions which mere- power declared ly action, or policy entreated since did con- such enactments not stitute the exercise of to create law.23 legislative power statutory interest,

Real however, party current contends that California practice and permit decisions an initiative which declares He policy. merely public points Election, 12 at the Proposition 1982 General which endorsed a bilateral freeze on the of and construction nuclear weapons required Governor to transmit that endorsement to President and other federal No officials. judicial decision of validity discussed the Nuclear Freeze Initiative, but real party suggests justified that initiative was two policy decisions, earlier 26, Farley (1967) v. 325 Healey 67 Cal.2d Cal.Rptr. [62 431 650], P.2d and Santa (1975) Barbara Sch. Dist. v. Court 13 Superior Cal.3d 315 530 P.2d Cal.Rptr. [118 605].

Farley v. Healey, involved a San initiative which supra, Francisco city declared city an policy favoring immediate ceasefire in Vietnam and with- drawal of American troops from that The San Francisco country. City Charter defined the of initiative with breadth: it included the right unusual ordinance, power or adopt “any act other measure which is within the enact,” conferred upon the board of and that supervisors provided “[a]ny declaration of be submitted the electors the manner policy may provided (P. for the of submission ordinances. ...” S. F. quoting Charter, City 179.) the court Consequently, rejected argument § the initiative was invalid it did because not concern a affair. municipal supervisors councils decla- city traditionally “[B]oards have made rations policy matters of concern to whether or community had they effectuate such declarations by binding legislation.” “act,” “law,” guise—the (or 23The issue in this between or distinction a statute an a “bill”) and a resolution arisen Subsequent has not since that date. have concerned the cases question “administrative,” (See, “legislative,” “adjudicative.” whether measure was e.g., Development City (1980) Arnel Cal.Rptr. Co. v. Costa Mesa 28 511 Cal.3d 565]; 620 Authority Superior (1950) P.2d Housing 550 P.2d v. Court 35 Cal.2d Hite, 457]; 125; Alto, Simpson supra, City supra, v. 36 Cal.2d v. Palo 86 Fishman 506; Cal.App.3d 283); Cal.App.2d Cal.Rptr. O’Loane v. O’Rourke 774 [42 Acker, Mervynne supra, legisla v. Cal.App.2d generally These cases assert ways acts public tive “are those which purpose provisions declare a and make ” Alto, (Fishman accomplishment. City means its supra, Cal.App.3d v. Palo 509; accord, O’Rourke, 774, 784.) O’Loane supra, v. That definition was Cal.App.2d acts, distinguish “carry fashioned to legislative policies administrative which out the Alto, purposes already (Fishman legislative body” City declared Palo 509). resolution, Cal.App.3d context, however, p. at It will serve in because a present statute, public as distinct from essentially purpose declares enactment and does not establish accomplish purpose. means to the within (P. 328.) being Thus of policy, declaration terms under the initiative enacted by board could be supervisors, of the charter. city Far- indicated that General later of the California opinions Attorney

Two initiatives California v. did not state ley Healey applicable legal principles San Francisco of the but language was based on generally, specific to “direct In County proposed Charter. 1973 the voters Humboldt our ... of the President Board of and Supervisors notify States all United desire to see terminal date set for withdrawal Gen- Attorney The and from South East Asia. ...” equipment personnel Counsel, eral, advised County to a from the Humboldt responding request an initiative the people measure is not a for proper subject “[s]uch county laws for general of a under the Constitution and county [California] con- (56 61, it did not (1973)) because government” Ops.Cal.Atty.Gen. of an nonlegislative stitute but instead legislation adoption “requests county gov- . . . resolution to matters outside the relating purview (Id., on the 63.) Farley Healey ground ernment.” at He v. p. distinguished did have to not under the San Charter an initiative measure Francisco (P. be a 64.) act. In

Two to his earlier years opinion. later General referred Attorney said, of the San he office distinguished language “this opinion, Con- in the California Francisco charter from the definition of ‘initiative’ law stitution. In initiatives general that local determining [Citation.] declarations, we indicated inferentially counties cannot be used for policy (58 that the statewide either.” initiative is available for such purposes 830, (1975).) Ops.Cal.Atty.Gen. fn. Dist. Barbara Sch. rely

The second case which is Santa proponents Court, initiative, A Superior Proposition 13 Cal.3d 315. state which directed school Education Code sections 5002 repealed eliminate imbalance, districts to section 1009.6 to prohibit racial added sec- In repealing of the initiative mandatory busing. upholding portion tions 5002 and of California through we stated that “the people . policy. repealing initiative . . have declare process an as conceivably interpreted expression 21 can provisions Proposition ” school of . . . their for a ‘neighborhood policy.’ preference however, (P. not declare policy did specific provisions upheld, Ed- inference; two sections specific except they simply repealed it is clear that Prop- ucation Code. Whatever motivated that repeal, policies osition took form. statutory cases, thus, we drew earlier—

The cited consistent with the conclusion are Constitution is to enact that the function of the initiative under the California (or repeal) statutes. The statute declare as well as may policy provide statutes, its implementation. Indeed it is common for including statutes, to contain a section declares policy provides guide implementation the substantive But the measure.24 provisions initiative which seeks to do other than enact a statute—which something decision, seeks to render an administrative a or declare adjudicate dispute, resolution the views of the within not the initiative resolving body—is reserved power people.

We now turn to this apply to the Balanced Initiative. analysis Budget Section 1 of the initiative mandates the to a resolution Legislature adopt calling amendment, to upon Congress a balanced and propose budget ap- for a plying constitutional convention to such an amendment. This propose section is in resolution, form neither a statute nor a but a cross between indirect (see 20, initiative in 1966 and repealed ante) fn. a writ of manda- mus. distinction between an which a and one enacts statute one, which commands to do so is a be Legislature may narrow but If the constitutionally significant. have the to enact measure a people power initiative, should they do so if the a directly; lack entrusted to solely the Legislature, they should not be to circumvent that permitted event, In limitation. to any section does not mandate the enact Legislature statute, a but to a resolution. dec- adopt That resolution is a part simple laration of without policy, statutory and a part step implementation, federal which process may lead amendment of the federal eventually thus, Constitution. It does not create law and the authorities and under analysis examined, we have does not within mean- “adopt” “statute” of article II of the ing California Constitution.

Section 2 of the initiative to amend sections 8901 proposes through and section Government Code relating payment leg- and, islators’ This salaries. section takes statutory the form a enactment alone, standing could not be criticized that fails to ground “adopt” a “statute” however, within the of article II.25 Section scope simply 24The statutory distinction between a which one that policy declaration takes form and case, not does is functional as policy well as formal. In the the declaration of can former upon by and interpretation application be cited relied administrators and courts in the statutory provisions. of other merely requests by Congress, A declaration action which beyond jurisdiction, legal which relates to a matter can the state’s have no such effect. 25Section 2 that if within Legislature prescribed states fails resolution legislative days, adopted. payments legislators suspended all shall the resolution is be until (1) Petitioners claim this section provisions violates three of the California Constitution: III, may article which not provides section of elected officials “salaries office”; IV, during any reduced term provides their section which article adjustment compensation “may in the until the apply of members of the not regular following commencement of the after election commencing general session the next goes sanction, compensation, of legislators’ provides suspension 1 within 20 section if with into effect fails to comply the Legislature it; invalid, 2 falls with section if is section legislative days. Consequently it cannot be severed obtain life. independent initiative, section substantive

Finally, remaining provision budget balanced adopts a resolution calling upon Congress propose amendment, State for a constitutional and directs the Secretary apply under article We held this invalid application convention. previously observe, 703-704.) ante at pp. (See V of the We now federal Constitution. addition, 3 of the initia- that the resolution under section adoption “statute,” thus does fall tive of a does not constitute the adoption under II. within the of the initiative article scope Initiative invalid Budget We therefore conclude the Balanced that statute, fall within as a whole because thus does not it fails a adopt the in II of the California Con reserved initiative as set out article there We the of may stitution. the acknowledge arguments proponents statutes, be value to not adopt the direct vote permitting people by resolutions, but also to make known their views adopt declare policy, statewide, national, of concern. Such upon matters or even international initiatives, law, the while not the of nevertheless guide force could having in of lawmakers future decisions. it be that the declaration may Indeed well broad of than statements for the initiative the is more suitable use policy enactment of detailed and the terms of the Cali technical statutes. Under Constitution, however, fornia those hortatory the initiative does serve as a method of objectives; functions instead a reserved legislative power, not conform to mod enacting statutory law. initiative does present el.

Even if the we could 3 on the term theory of section uphold portion “statute” res- article II could be construed to include a liberally policy olution, would from the ballot. we still be to exclude the initiative impelled initiative, 1 The most the the in section man- of important provisions parts 15, IV, which [adjusting compensation]”; enactment of the statute and article section Legislature in felony makes it a member of the to seek to “influence the vote or action of intimidation, reward, legislative other capacity bribery, promise the member’s of dishonest means.” character, Arguments of this which of the initiative instead go to the substance measure, preelection review. More- people’s power ordinarily justify to enact would not over, 2 2 is severable grounds, even if section found on one of section were invalid these could mandate the respect. question We face whether would still convention, specified if calling even resolution for a constitutional analyze depth attempted means of improper. enforcement were We have therefore not constitutionality of 2 presented concerning or to resolve the section substantive issues of the initiative. dating legislative action and of section for a constitu- part applying convention, tional would still be be inoperative, invalid. Section would since the invalidity the inva- necessarily mandate implies lidity a salary intended to with that man- suspension coerce compliance circumstances, date. Under such without to submit the measure to voters would redrafting confuse the and mislead voters into casting electorate many their ballot on basis of had been found invalid. provisions already As the court explained Inc. v. Board People’s Lobby Supervisors (1973) 869, 666],26 “to order Cal.App.3d pro- Cal.Rptr. [106 to be on posal the ballot when small of it could be valid placed only a part would be using writ for the vot- misleading mandate purpose (See ers.” also 829-830 (1953) Alexander Mitchell 119 Cal.App.2d 261]; P.2d Bennett v. Drullard 186-187 Cal.App. 368].)27 P.

Let a peremptory writ mandate issue not to respondents commanding action, take any funds, including public expenditure place Balanced Initiative the November General Budget Election ballot. We reserve jurisdiction for the purpose considering pe- titioners’ for an award request of attorney’s fees.

Bird, J., Mosk, J., J., Grodin, C. J., Reynoso, concurred. KAUS, I agreewith the V of the United that under article majority J. States Constitution as in the federal interpreted precedents applicable initiative be process cannot used call of constitu for a a directly apply tional convention or to mandate the California to so indirectly Legislature Because the apply. federal law so eviscerates the heart of governing clearly initiative, I also is to remove the agree appropriate matter from time, the ballot and are at this before additional effort expense believe, however, incurred on an I that it futile task. do not inevitably necessary to determine measure—by whether a small portion bud electorate a balanced purports simply urge propose alone, amendment—would, un- get initiative measure standing be a proper Livermore, 26Disapproved City supra, on grounds other in Associated Home Builders v. 582, 596, 18 Cal.3d footnote 14. Court, 27Our in decision 13 Superior Santa Barbara Dist. v. Cal.3d Sch. rejected the argument that than severability applies a different test of to initiative measures case, however, ordinary (See passed by statutes That Legislature. p. fn. initiative, postelection involved language open an and which left the test of review of used (See ibid.) matter, severability does make preelection timing On we think the review. election, upholds mechanically severable difference. After no harm if the court ensues initiative, preelec provision of if invalid. In provisions even most of the the act are however, opinion, permit tion for a court to deception it would constitute a on the voters provisions, including pro on those knowing measure remain the ballot that most of its voters, are invalid. likely visions which are most to excite the interest and attention of the

717 it would say ready I not der the California Constitution. am Although to find that the be, wag dog the tail to it would surely permitting the submission justifies of the measure of this minor validity part possible v. Lobby, Inc. (See People’s of a to the electorate. invalid initiative largely 666], 869, 874 (1973) Cal.Rptr. Board Supervisors Cal.App.3d [106 etc., v. City Inc. Builders Home on another Associated disapproved point 41, P.2d (1976) Cal.Rptr. Livermore 18 Cal.3d 582 [135 816, 830 (1953) Cal.App.2d 1038]; v. Mitchell A.L.R.3d Alexander I judgment. concur Accordingly, P.2d both LUCAS, J. acting precipitously The majority, dissent. respectfully I of their sovereign people has once again deprived prematurely, (1983) 34 Cal.3d (See Deukmejian precious right. vote [blocking reapportionment P.2d Cal.Rptr. 17] view, respects, three initiative].) separate In errs in at least my majority review, to the well-settled contrary (1) this case for preelection selecting franchise, (2) misinterpret- rule the initial exercise of the favoring people’s V) Const., art. (U. pertaining the federal S. ing constitutional provision of” the state Leg- “on calling application a constitutional convention islatures, people’s construing scope strictly narrowly law, to the rule doz- contrary reserved initiative under California ens of cases. prior

I. Preelection Review initia dissent in the foregoing reapportionment of Justice Richardson that, in the absence

tive set which hold case forth the authorities pertinent with a scheduled of a should not interfere of “clear we showing invalidity,” instead, defer our review but, on an we should election initiative measure views. (Leg their until to express have had the opportunity people after see Bros 681 opn.]; 34 Cal.3d at v. Deukmejian, supra, p. [dis. islature 274].) Even P.2d Eu Cal.Rptr. nahan v. Cal.3d pree do require initiative validity doubts” “grave regarding 250, 256 (1972) 25 (Gayle Cal.App.3d lection review. v. Hamm Cal.Rptr. was initiative the 1983 reapportionment

Our recent review of preelection time the ballot a qualified “the has from first this court removed years voting from measure, California thereby preventing people (34 Cal.3d at p. on a . . .” subject [dis. to them . great importance later, my view reflects decision, filed than one Today’s year less opn.].) decide consti- prematurely a trend of court to reach out and disturbing this the results moot entirely issues have tutional been rendered might election, and which in be ad- forthcoming readily event could any dressed the election has been held. after

What reason does the offer for once the tra- majority breaching, again, rule ditional “The judicial restraint? asserts that majority present proceeding . . . challenges to power people initiative,” {Ante, a supposedly review. ground” “proper preelection p. Surely, the mere to “challenge” an initiative is not enough such review, trigger accelerated could expedited, challenge for such Instead, made in every case. we must first ourselves that the initiative satisfy i.e., invalid, is clearly No such clearly beyond adopt. people’s is made here. showing will

As I indeed direct explain, do have people for a convention. But even apply Congress constitutional were grave doubts there are presented initiative’s regarding validity, reasons for good our review until deferring after have expressed their and views voted point the measure. As real herein out parties briefs, one of their in the “Participation process ongoing electoral pub- lic debate this issue benefit their elected citizenry will important It will allow representatives. citizens exercise their first amendment rights their express terminates opinions.” majority’s ruling unfortunately any abruptly debate California citizens widespread public regarding own, nation’s, matter so crucial to their their financial well being. not the Might Legislature, the and the voters each have welcomed public airing this issue? important addition, In I of the “rush to question necessity judg- propriety case, ment” exhibited in to file this from the resulting majority’s attempt its decision before election deadlines. Most of the this impending briefing case was a few filed completed only to oral we days prior argument; today’s court, days few after How opinion hearing can argument. cases, with a rea- already swamped hundreds to reach pending expect soned determination of the issues herein under such ad- complex presented verse circumstances? (former several well General Griffin

Finally, respected Attorney amici Bell, Ervin, former have Noonan) Senator Sam and Professor John raised an (or additional indeed review argument against any) judicial preelection court, court, strikes me as A state quite persuasive: especially should not the the pass political validity essentially question regarding of an V of for a constitutional convention to article the application pursuant federal (See Miller L.Ed. Constitution. Coleman v. U.S. [83 59 S.Ct. review of declining A.L.R. [plurality opn., 695] Instead, amendment].) we of state ratification of constitutional validity federal Consti- the entrusted should defer to alone Congress, body As I such applications. tution with the to receive and review responsibility likely Congress it is indicate in the of this quite following part opinion, What possible valid. constitutionally would conclude application regarding harm could result from deferring Congress our federal question? Clause Convention Validity

II. Under Federal Law—The Con- part provides Article V of the federal Constitution pertinent several of two-thirds “on gress application Legislatures to the Constitu- States, amendments” shall call a convention for proposing . when be valid . . (Italics added.) tion. amendments “shall Such proposed States, or by the several ratified of three-fourths of Legislatures herein, majority to the Contrary conventions three-fourths thereof . . . .” con- foregoing with the initiative measure is not in conflict challenged file directs the stitutional The initiative provision. simply be counted as may supporting so that California requisite application under “clear invalidity” of a Where is the calling constitutional convention. federal law in that procedure?

Thus, one, initiative measure (a), challenged section subdivision that the mandate hereby recites that “The of the State of California People submit the same California resolution and Legislature adopt following Congress follows urges . . . .” The resolution which Congress and makes federal Constitution a balanced amendment to the propose budget convention to constitutional for the of a “application” calling law, the that, under consider such an amendment. Assuming California (a I discuss part subject be used for this process may purpose contravenes the hereof), III that the measure what basis exists for holding That article requires of article V? constitutional requirements federal measure is designed the challenged from the “application” Legislature; such an provide application. com- abrogate prior are attempting

This is a case where the voters 221, 227- (1920) 253 U.S. Hawke v. Smith legislative action. pleted (E.g., 1504]; Barlotti v. 871, 875-876, 10 A.L.R. L.Ed. 40 S.Ct. 282].) In both Hawke and P. (1920) 182 Cal. 578-584 Lyons Barlotti, the 18th Amendment already had Legislatures ratified Nevertheless, referendum petitions resolution. (“prohibition”) by joint of submitting question were thereafter circulated for the purpose that, held courts quite properly voters for their Both rejection. approval refers Constitution, term “Legislature” under article V of the federal to the states, official or bodies of the various rather representative body itself, than to the legislative power as exercised referendum. through Accordingly, filing resolutions exhausted rat- joint legislative Hawke, process. As stated in ratification “is but expression ification ” the assent of the (P. state to a amendment. L.Ed. at p. Because article V mandated that such assent expressed “Legislature,” referendum deemed and inca- was process inapplicable pable abrogating prior will. expression case, Barlotti, In the present contrast to no is made Hawke attempt to “undo” any prior, act which had completed legislative already triggered a federal constitutional or such as a convention process calling ratifying Instead, proposed amendment. here the initiative is used to being process assure that such an act is undertaken our Article V finally Legislature. does not the use of initiative as one means purport prohibit process Indeed, a state inducing to act. as the cases make legislature foregoing clear, the sole concern of article V is that the for a convention call request take the form of an a state As dis- application by legislature. previously cussed, that concern is satisfied here. Validity

III. Under Law—The Initiative Process California Is an initiative for a measure which directs the state Legislature apply constitutional convention law? Clearly invalid” under California “clearly issue, not. however, Before first review certain we should confronting foremost, fundamental First and principles control our disposition. “All instituted for is inherent in the Government is political power people. their benefit, to alter or protection, have the security, they right Const., II, (Cal. reform it when the art. A public good may require.” § this is that “the of this State is vested corollary legislative power ., California . but to themselves the Legislature powers . reserve ” IV, added.) (Id., initiative and italics Finally, referendum. art. § “The initiative and amend- is the of the electors to statutes propose II, (Id., ments to the art. Constitution and to them.” reject § (a).) subd. of the ini- majority would a narrow construction of the apply scope view, di-

tiative under the In the majority’s California Constitution. involves for a constitutional convention recting apply But neither a “statute” nor an Constitution. use “amendment” of such a narrow right directly construction of the people’s court which contrary require decisions teachings prior liberal construction the exercise of the initiative power. favoring

721 “The follows: as principles forth the applicable Justice Tobriner set initia for the in 1911 provide Constitution amendment of the California of the achievements outstanding one of tive and referendum signifies theory of the in light Drafted 1900’s. early movement progressive amend in the people, resides ultimately power government that all referendum, a right granted not as ment of the initiative speaks the courts duty it ‘the Declaring them. but as a reserved power people, (1959) 176 Smith (Martin v. jealously guard right people’ ini have described 307]), the courts 115, 117 Cal.Rptr. Cal.App.2d [1 tiative and referendum as articulating our democratic process’ (Mervynne v. ‘one Acker ^[1961] the most precious 189 Cal.App.2d rights 558, apply been our 340]). judicial policy has long 563 Cal.Rptr. [11 ‘[I]t that the in order it is challenged liberal construction to this wherever resolved in reasonably can be not annulled. doubts right improperly If ’ (Mervynne it. courts will preserve the use of this reserve power, favor of Hamm, 25 Acker, 563-564; 558, supra, v. Gayle v. 189 Cal.App.2d etc., City 250, Inc. 258.)” (Associated Home Builders Cal.App.3d 473, 41, 92 557 P.2d (1976) Cal.Rptr. Livermore 18 Cal.3d 591 [135 1038], added, omitted.) italics fns. A.L.R.3d Builders, these admoni- followed we have often

Since Associated Home v. Brown Brosnahan (See, e.g., tions this constitutional regarding right. [upholding 651 P.2d (1982) 32 Cal.3d 274] Cal.Rptr. [186 Com. v. initiative]; Practices Bill Fair Political “Victims’ of Rights” 855, 599 P.2d 33, 41 Cal.Rptr. Court 25 Cal.3d Superior 46] 1974]; Amador Reform Act in most the Political [upholding, respects, (1978) 22 Bd. Equalization Joint Union Sch. Dist. v. State Valley High 208, 219-220, 239, 583 P.2d [upholding Cal.3d Cal.Rptr. 1281] initiative]; Legislature, supra, also the Jarvis-Gann tax see property Cal.3d opn.].) [dis. reserved

Under a liberal construction of the “precious” own direct their repre- authority would have clearly power, convention. a constitutional sentatives in the for apply state Legislature for the be deemed proposal Such an initiative measure could reasonably of a “statute.” adoption The term fixed, the term “statute.”

There is no definition of immutable whether or formal, of legislative power, could refer to written exercise any of Civil The Code the California codes. not codified and within placed than a constitution. law” other Procedure defines “statute” as “written any IV, is the 1897; Const., (§ see former Cal. art. also § [initiative man- “laws”].) Legislature, written directive propose people’s convention, as would certainly qualify it to for a constitutional dating apply law, i.e., written a statute. Under this we do not need to interpretation, reach the further issue whether a troubling namely, majority, resolution applying constitutional convention is a statute. The statute involved here is the one enacted by the people, directing Legislature submit that application.

For example, recent initiative measure in part required Legislature to adopt provisions crime monetary victims to implementing right 8, Election, restitution. at the June art. (Prop. adopted Primary now I, 28, (b).) subd. § Is this from the procedural mandate people so, Legislature a “written law”? If initiative then in what does the respects measure before us fail as such a law? Would it have qualify proposing made any difference if our measure had that its text for- recited would be mally a new incorporated into section of the Code? such Government Surely formalism cannot over the to be heard on prevail matters people’s right grave Indeed, importance to them. our all cases us to resolve prior require doubts in favor of the exercise the initiative where the power, especially matter subject of the measure is of (See interest and concern. Santa public Barbara 315, Sch. Superior (1975) Dist. Court v. Cal.3d 330 [118 637, 530 Cal.Rptr. P.2d measure declaring initiative state policy [state 605] on forced Farley 325, busing]; (1967) 67 Cal.2d Healey 328-329 [62 26, 431 Cal.Rptr. P.2d fa- initiative measure adopting policy 650] [local voring Vietnam].) immediate ceasefire withdrawal from As stated case, the Santa Barbara “The of California the initiative through then, have the process, (P. 330.) to declare state policy.” Surely, have direct as their they representative, Legislature, such declare on their behalf. policy that,

We should limited bear in mind unlike referendum power, initiative is not its confined restrictions by any constitutional (See Const., II, 8, 9; scope use. Carlson v. Cory Cal. art. §§ Cal.App.3d of state inheritance Cal.Rptr. [repeal 185] taxes].) observes, As gift Carlson “there is our state Constitution nothing tax prohibits use laws.” statutory repeal (P. 731.) ini- the state Constitution forbids use of the Similarly, nothing tiative direct the convention. for a constitutional apply In a case of another statewide initiative measure upholding validity Const., A), XIII ac (Prop. June now art. we adopted Cal. “' battering that the initiative as a knowledged may legislative be viewed ” “ ram’ aimed of the tradition tangle at ‘tear[ing] through exasperating the desired end.’ al toward procedure striking] directly [Ci (Amador Joint Union Dist. v. State Bd. Valley High Equal Sch. tation.]” ization, 208, 228.) Given numerous or aban- rejected Cal.3d measure the initiative the end sought by doned bills aimed at accomplishing As case, unusually seems description challenged foregoing apt. nor neither Valley, approval disapproval in Amador we “Although express or social policy” from of sound fiscal the standpoint [measure] of the constitutional 229), principle we should it in recognition (p. uphold Const., II, (Cal. art. “All in the is inherent political power people.” construed, here. the initiative Liberally power applies § IV. Severability validity

Time at length constraints do not me to permit explore finan- which impose those additional provisions challenged of its noncompliance, cial sanctions the event Legislature should Legislature of State to act in lieu requires Secretary Suffice it to it fail to the resolution within 40 of voter days approval. from, that these and do affect say are severable provisions entirely of, for constitur validity provision directing Legislature apply 643, 655 P.2d (See tional convention. In re 30 Cal.2d Blaney Indeed, made each of the initiative measure is “severa- section separate itself, ble” the terms of the if section or subdivision any measure invalid, there- held “the remainder of the initiative . . shall not be affected . effect, I see no reason at least by.” the initiative not be why may given the extent it directs the convention. constitutional apply The distinct and severable sanctions or alternative pro- questions proper day. cedures in the event of decided another noncompliance may reasons, writ of man- For all the I deny would foregoing peremptory date.

On October modified to judgment was read as printed above.

Case Details

Case Name: American Federation of Labor-Congress of Industrial Organizations v. Eu

Court Name: California Supreme Court

Date Published: Aug 27, 1984

Citation: 686 P.2d 609

Docket Number: S.F. 24746

Court Abbreviation: Cal.