JAMES J. BROSNAHAN et al., Petitioners, v. EDMUND G. BROWN, JR., as Governor, etc., et al., Respondents.
S.F. No. 24441
Supreme Court of California
Sept. 2, 1982
32 Cal. 3d 236
Ephraim Margolin, Michael Rothschild, Laurance Smith, Brent Barnhart, Friedman, Sloan & Ross, Stanley J. Friedman, Lawrence A. Gibbs, Morrison & Foerster, James J. Brosnahan, Linda E. Shostak, Andrew E. Monach, Christina Hall, Orrick, Herrington & Sutcliffe and Steven A. Brick for Petitioners.
McCutchen, Doyle, Brown & Enersen, Richard C. Brautigam, Nanci G. Clinch, Marjorie C. Swartz, Judith Allen, Joseph J. Bell, Bonnie C. Maly, Fred Okrand, Carol Sobel, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, Herbert M. Rosenthal, Truitt A. Richey, Jr., Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Deputy State Public Defender, Michael Millman, Deputy State Public
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Richard D. Martland, Assistant Attorney General, Paul H. Dobson and Nelson P. Kempsky, Deputy Attorneys General, Anthony L. Miller, Richard B. Maness, William P. Yee, John J. Meehan, District Attorney, Thomas J. Orloff and William M. Baldwin, Assistant District Attorneys, for Respondents.
Dobbs & Nielsen, James R. Parrinello, John E. Mueller, Marguerite Mary Leoni, John H. Hodgson II, Charles H. Bell, Jr., Ronald A. Zumbrun, John H. Findley, Joseph E. Maloney, George Nicholson, John T. Doolittle, Patrick Nolan, John K. Van de Kamp, District Attorney (Los Angeles), Harry B. Sondheim, Suzanne Person and Roderick W. Leonard, Deputy District Attorneys, Albert M. Leddy, District Attorney (Kern), Margaret E. Spencer and Francine J. Lane, Deputy District Attorneys, as Amici Curiae on behalf of Respondents.
OPINION
RICHARDSON, J.—We consider multiple constitutional challenges to an initiative measure which was adopted by the voters of this state at the June 1982 Primary Election. Designated on the ballot as Proposition 8 and commonly known as “The Victims’ Bill of Rights,” this initiative incorporated several constitutional and statutory provisions which were directed, in the words of the measure‘s preamble, towards “ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights....” (
Petitioners are three taxpayers and voters who assert various constitutional defects in the manner Proposition 8 was submitted to the voters, and who object to the expenditure of public funds to implement it. Respondents are certain public officials and courts charged with the responsibility of implementing, enforcing or applying the new measure.
In an earlier, related proceeding, we ordered the measure to be placed on the primary election ballot, reserving for our further consider
Our inquiry here is limited, framed in the following manner by the petition itself: “This petition for extraordinary relief attacks neither the merits nor the wisdom of the [initiative‘s] multiple proposals. Petitioners challenge only the manner in which those proposals were submitted to the voters....” At this time we neither consider nor anticipate possible attacks, constitutional or otherwise, which in the future may be directed at the various substantive changes effected by Proposition 8. As in Amador, we examine here “only those principal, fundamental challenges to the validity of [Prop. 8] as a whole .... ‘Analysis of the problems which may arise respecting the interpretation or application of particular provisions of the act should be deferred for future cases in which those provisions are more directly challenged:’ [Citation.]” (Amador, 22 Cal.3d at p. 219.) We will conclude that, notwithstanding the existence of some unresolved uncertainties, as to which we reserve judgment, the initiative measure under scrutiny here survives each of petitioners’ four constitutional objections.
Preliminarily, we stress that “it is a fundamental precept of our law that, although the legislative power under our constitutional framework is firmly vested in the Legislature, ‘the people reserve to themselves the powers of initiative and referendum.’ (
I. SUMMARY OF PROPOSITION 8
As previously noted, the measure denominated “The Victims’ Bill of Rights,” accomplishes several changes in the criminal justice system in this state for the purpose of protecting or promoting the rights of victims of crime. Thus, section 28 is added to article I of the California Constitution, section 12 of article I (relating to the right to bail) is repealed, and certain additions are made to the Penal and Welfare and Institutions Codes. The primary changes or additions are as follows:
a. Preamble; Victims’ Rights and Public Safety
Section 28, subdivision (a), is added to article I of the state Constitution expressing a “grave statewide concern” to enact “safeguards in the criminal justice system” for the protection of victims of crime. The preamble recites generally that the rights of victims include, among others, the right to restitution for financial losses, and the expectation that felons will be “appropriately detained in custody, tried by the courts, and sufficiently punished so that public safety is protected and encouraged ....” In addition, the provision states that “[s]uch public safety extends to public... school campuses, where students and staff have the right to be safe and secure in their persons.” The preamble concludes by observing that “broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people‘s lives.”
b. Restitution
Section 28, subdivision (b), is added to the Constitution to assure generally that persons who “suffer losses as a result of criminal activity shall have the right to restitution” from the persons convicted of those crimes. “Restitution shall be ordered... in every case, ... unless compelling and extraordinary reasons exist to the contrary.”
Section 28, subdivision (c), declares the “inalienable right” of public school students and staff “to attend campuses which are safe, secure and peaceful.”
d. Truth-in-evidence
Section 28, subdivision (d), provides that (except as provided by statutes enacted by a two-thirds vote of both houses of the Legislature) “relevant evidence shall not be excluded in any criminal proceeding ....” The provision applies equally to juvenile criminal proceedings, but does not affect “any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103,” or rights of the press.
e. Bail
Section 28, subdivision (e), relates to bail and replaces repealed section 12 of article I. The new provision requires that “primary consideration” be given to “public safety,” and authorizes the judge or magistrate to consider “the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing” in ruling on bail matters. In addition, the provision forbids release on one‘s “own recognizance” of a person charged with any “serious felony” (see
f. Prior Convictions
Section 28, subdivision (f), permits the unlimited use in a criminal proceeding of “any prior felony conviction” for impeachment or sentence enhancement, and requires proof thereof “in open court” when the prior conviction is an element of any felony offense.
g. Diminished Capacity; Insanity
The addition of section 25 to the Penal Code abolishes the defense of diminished capacity (subd. (a)); places upon the defendant who pleads insanity the burden of proving his or her incapability of “knowing or
h. Habitual Criminals
Section 667 is added to the Penal Code to require that persons convicted of a “serious felony” receive a sentence enhancement of five years for each prior conviction of such a felony “on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” (Subd. (a).)
i. Victim‘s Statements
New sections 1191.1 and 3043 in the Penal Code, and section 1767 in the Welfare and Institutions Code, permit the victim of any crime or the next of kin the right to prior notice of, and to attend, all sentencing proceedings (subd. (a)), or parole eligibility or parole setting hearings in criminal (subd. (b)) or Youth Authority (subd. (c)) proceedings. The victim or next of kin may appear and “express his or her views concerning the crime and the person responsible.” The sentencing or parole authority shall consider these views in making its decision and shall state “whether the person would pose a threat to public safety” if granted probation or released on parole.
j. Plea Bargaining
Section 1192.7 is added to the Penal Code to prohibit plea bargaining if the indictment or information charges “any serious felony” or any offense of driving while intoxicated, “unless there is insufficient evidence to prove the people‘s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.” (Subd. (a).) Subdivision (c) contains a list of the various offenses deemed to be “serious felonies.”
k. Sentencing to Youth Authority
The addition of section 1732.5 to the Welfare and Institutions Code provides that no person convicted of murder, rape or other “serious fel
l. Mentally Disordered Sex Offenders
New section 6331 of the Welfare and Institutions Code renders “inoperative” the article dealing with mentally disordered sex offenders (MDSOs). (As this article was repealed in 1981, the initiative does not appear to accomplish any change in the law.)
m. Severability
Section 10 of the initiative recites that if any section or clause thereof is held invalid, such invalidity shall not affect any remaining provisions which can be given effect without the invalid provision.
n. Amendments
A two-thirds vote of both houses of the Legislature is required to amend most of the statutory provisions adopted by Proposition 8.
Having summarized its principal elements, we examine petitioners’ four challenges to the validity of Proposition 8.
II. THE SINGLE SUBJECT RULE
Our Constitution provides that “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (
In Amador, for example, we upheld a four-pronged taxation measure which limited real property tax rates and assessments and restricted state and local taxes, on the ground that such restrictions were reasonably germane to the general subject of property tax relief. (22 Cal.3d at p. 231.) Even more recently in FPPC, we rejected a single-subject challenge to a lengthy political reform measure which contained the following multiple complex features: (1) establishment of a fair political practices commission; (2) creation of disclosure requirements for candidates’ financial supporters; (3) limitation on campaign spending; (4) regulation of lobbyist activities; (5) enactment of conflict of interest rules; (6) adoption of rules relating to voter pamphlet summaries of arguments; (7) location of the ballot position of candidates; and (8) specification of auditing and penalty procedures to aid in the act‘s enforcement. (See 25 Cal.3d at p. 37.)
In FPPC, we reemphasized that the single subject rule is to be “construed liberally,” and that “Numerous provisions, having one general object, if fairly indicated in the title, may be united in one act.” (Id., at p. 38, italics added.) In amplification, we used this language in FPPC in describing the overriding principle which controls our disposition of the single-subject attack against Proposition 8: “Consistent with our duty to uphold the people‘s right to initiative process, we adhere to the reasonably germane test and, in doing so, find that the measure before us complies with the one subject requirement .... In keeping with the policy favoring the initiative, the voters may not be limited to brief general statements but may deal comprehensively and in detail with an area of law.” (25 Cal.3d at p. 41, italics added.)
Our own precedent is both venerable and current. While FPPC is only three years old, its underlying thesis was enunciated by us fifty years ago. In FPPC we cited with approval Evans v. Superior Court (1932) 215 Cal. 58, 61-62 [8 P.2d 467]. Evans is most instructive. We there upheld the adoption, in a single act, of extensive probate legislation consisting of one thousand and seven hundred sections covering a wide spectrum of topics within the general “area” of “probate law,” which sections previously were contained in part in several codes and statutes. This “one general object” included such disparate subjects as the essential elements of wills, the rights of succession, the details of the administration and distribution of decedents’ estates, and the procedures, duties, and rights of guardianships of the persons and estates of minors and incompetents. (215 Cal. at p. 61.) Despite the extremely broad sweep of this legislation, we concluded that all of these matters were “reasonably germane” to the general object of the legislation and did not embrace more than a single subject. Expanding on this concept, in Evans, we said “The legislature may insert in a single act all legislation germane to the general subject as expressed in its title and within
On the basis of the foregoing authorities, it is readily apparent that Proposition 8 meets the “reasonably germane” standard. Each of its several facets bears a common concern, “general object” or “general subject,” promoting the rights of actual or potential crime victims. As explained in the initiative‘s preamble, the 10 sections were designed to strengthen procedural and substantive safeguards for victims in our criminal justice system. These changes were aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, protecting the public from the premature release into society of criminal offenders, providing safety from crime to a particularly vulnerable group of victims, namely school pupils and staff, and assuring restitution for the victims of criminal acts.
Just as Evans, Amador and FPPC upheld broad and multifaceted “reform” measures pertaining to the subjects of probate, property taxation, and politics, respectively, Proposition 8 constitutes a reform aimed at certain features of the criminal justice system to protect and enhance the rights of crime victims. This goal is the readily discernible common thread which unites all of the initiative‘s provisions in advancing its common purpose.
Focusing on the initiative‘s “safe schools” provision, petitioners contend that it concerns an entirely unrelated matter, isolated from criminal behavior, and therefore embraces a separate subject. Petitioners argue specifically that the right to safe schools is an undefined, amorphous concept which could encompass such diverse hazards as acts of nature, acts of war, environmental risks, or building code violations. A careful look at the preamble of Proposition 8 refutes this contention. New
We are reinforced in our conclusion that Proposition 8 embraces a single subject by observing that the measure appears to reflect public dissatisfaction with several prior judicial decisions in the area of criminal law. As explained in the ballot argument favoring Proposition 8, “This proposition will overcome some of the adverse decisions by our higher courts,” which had created “additional rights for the criminally accused and placed more restrictions on law enforcement officers.” (Ballot Pamp., Proposed Amends. to
Petitioners, however, would engraft upon the “reasonably germane” test of Evans, Amador and FPPC a further requirement that the several provisions of an initiative measure must be “interdependent.” Petitioners argue that, unlike the “interlocking” relationship of the vаrious elements of the tax reform measure upheld in Amador (see 22 Cal.3d at p. 231), Proposition 8 contains disparate provisions covering a variety of “unrelated” matters such as school safety, restitution, bail, diminished capacity, and the like.
No preceding case has ever suggested that such interdependence is a constitutional prerequisite. In Evans, for example, we carefully explained that “Numerous provisions, having one general object, if fairly indicated in the title, may be united in one act. Provisions governing
In context, it is obvious that Evans’ reference to interdependence merely illustrated one type of multifaceted legislation which would meet the single subject test. Significantly, as noted, in Evans we upheld extensive probate legislation concerning such diverse and unrelated topics as the rights of intestate succession, the powers of guardians over the persons and estates of incompetent persons, and the sale and leasing of estate property, on the express ground that all of these provisions “have one general object.” (P. 65.)
Moreover, in Amador, while acknowledging that the provisions of the tax measure under scrutiny were “interdependent” and “interlocking” (22 Cal.3d at p. 231), we did not suggest that any such relationship was essential to the measure‘s validity. Indeed, immediately preceding the foregoing observation, we had stated that the property tax initiative satisfied both the traditional reasonably germane test and the so-called “functional relationship” test which was proposed in the dissent in Schmitz v. Younger (1978) 21 Cal.3d 90, 97-100 [145 Cal.Rptr. 517, 577 P.2d 652] (dis. opn. by Manuel, J.). (See 22 Cal.3d at p. 230.) Thus, petitioners’ assumption that Amador requires that an initiative‘s several provisions be “interdependent” is incorrect.
Finally, as previously indicated, in FPPC we upheld a comprehensive political reform package despite the lack of any apparent “interdependence” of many of its varied provisions. Thus, for example, the section of the initiative denying an incumbent a favored position on the ballot (
If Justice Manuel‘s characterization of the Fair Political Practices Act is accurate, and if we are to follow our own precedent, our holding in FPPC necessarily controls the disposition of the present case, for on their face the various provisions of Proposition 8 certainly are no less germane, interdependent or interrelated than the provisions of the statute which we so recently sustained in FPPC against a similar single-subject attack.
Petitioners argue that because Proposition 8 is designed to protect the rights of potential as well as actual victims of crime, its objective somehow thereby becomes too broad. Yet surely the Fair Political Practices Act which we readily upheld in FPPC was subject to the same criticism, for it too was aimed at protecting the general citizenry in their role as potential victims of political corruption. Obviously, the fact that a multifaceted measure seeks to protect the general public from harm (whether from present or future criminal acts, political corruption or excessive taxation) presents no constitutional impediment to its validity.
Petitioners speculate that the multiplicity of Proposition 8‘s provisions enhanced the danger of election “logrolling,” whereby certain groupings of voters, each constituting numerically a minority, but in aggregate a majority, may approve a measure which lacks genuine popular support in order to secure the benefit of one favored but isolated and severable provision. Yet, as we emphasized in FPPC, such a risk “is inherent in any initiative containing more than one sentence or even an
As in FPPC, so in Amador we rejected the contention that the single-subject rule requires a showing that each one of a measure‘s several provisions was capable of gaining voter approval independently of the other provisions. We expressed our conclusion that “Aside from the obvious difficulty of ever establishing satisfactorily such ‘independent voter approval,’ this standard would defeat many legitimate enactments containing isolated, arguably ‘unpopular,’ provisions reasonably deemed necessary to the integrated functioning of the enactment as a whole. We avoid an overly strict judicial application of the single-subject requirement, for to do so could well frustrate legitimate efforts by the people to accomplish integrated reform measures.” (Amador, 22 Cal.3d at p. 232.)
One commentator, examining the purpose of the rule within this context, has noted that “The one-subject rule ... attacks log-rolling by striking down unnatural combinations of provisions in acts—those dealing with more than one subject—on the theory that the best explanation for the unnatural combination is a tactical one—log-rolling.” (Ruud, “No Law Shall Embrace More Than One Subject” (1958) 42 Minn.L. Rev. 389, 408.) It is highly unlikely that Proposition 8 was the product of any logrolling whatever, because it contains no “unnatural combination” of provisions on unrelated subjects which might suggest an inordinate vote-getting scheme on behalf of the proponents. All of the provisions are designed to protect victims of crime and partake of a common consistent theme, namely, to strengthen or tighten the laws in aid of crime‘s victims. The measure is singularly unsusceptible to such “logrolling” criticism.
Finally, petitioners insist that the complexity of Proposition 8 may have led to confusion or deception among voters, who were assertedly uninformed regarding the contents of the measure. Yet, as was the case
Moreover, as we stated in FPPC in disposing of an identical contention that the measure was too complicated, “Our society being complex, the rules governing it whether adopted by legislation or initiative will necessarily be complex. Unless we are to repudiate or cripple use of the initiative, risk of confusion must be borne.” (Ibid.)
Petitioners’ entire argument that, in approving Proposition 8, the voters must have been misled or confused is based upon the improbable assumption that the people did not know what they were doing. It is equally arguable that, faced with startling crime statistics and frustrated by the perceived inability of the criminal justice system to protect them, the people knew exactly what they were doing. In any event, we should not lightly presume that the voters did not know what they were about in approving Proposition 8. Rather, in accordance with our tradition, “we ordinarily should assume that the voters who approved a constitutional amendment ‘... have voted intelligently upon an amendment to their organic law, the whole text of which was supplied each of them prior to the election and which they must be assumed to have duly considered.‘” (Amador, supra, at pp. 243-244, italics added; see Wright v. Jordan (1923) 192 Cal. 704, 713 [221 P. 915].)
There are those rare occasions similar to that which prompted the people‘s adoption of the single-subject initiative rule in 1948 (
For all of the foregoing reasons, we conclude that Proposition 8 does not violate the single-subject requirement of
We do not suggest, of course, that initiative proponents аre given blank checks to draft measures containing unduly diverse or extensive provisions bearing no reasonable relationship to each other or to the general object which is sought to be promoted. The single-subject rule indeed is a constitutional safeguard adopted to protect against multifaceted measures of undue scope. For example, the rule obviously forbids joining disparate provisions which appear germane only to topics of excessive generality such as “government” or “public welfare.” In the present case, however, we merely respect this court‘s liberal interpretative tradition, notably expressed in Evans, Amador, and FPPC, of sustaining statutes and initiatives which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose.
III. VALIDITY OF STATUTORY AMENDMENTS
Petitioners contend that the proponents of Proposition 8 failed in several particulars to comply with the constitutionally mandated procedure for amending statutes.
The foregoing provision, containing a “single subject” rule applicable to statutes, also forbids amending a statute “by reference to its title” and “unless the section is re-enacted as amended.” Petitioners assume that this language “requires that if a statute is to be altered, the language of the statute must be fully set forth together with the changes proposed. Reference to sections, title or codes is not sufficient.” According to petitioners, Proposition 8 violated this requirement by failing to describe or identify (1) the provisions in the Welfare and Institutions Code rendered “inoperative” by the adoption of section 6331 of the code (dealing with the commitment of mentally disordered sex offenders); (2) the language of article I, section 12, of the Constitution (pertaining to right to bail) repealed by section 2 of Proposition 8; and (3) the provisions of the Evidence Code (and other codes) amended or repealed by the adoption of article I, section 28, subdivision (d), of the Constitution (forbidding the exclusion of “relevant evidence“). Petitioners list 26 statutory provisions which they suggest were sub silentio amended to be inapplicable in criminal trials.
a. Repeal of MDSO Statute
As previously noted, Proposition 8 added section 6331 to the Welfare and Institutions Code. The section declares “inoperative” the “article” within which section 6331 is contained, but fails to identify the text of that article. As we have explained, however, the entire article dealing with MDSOs was repealed in 1981 (Stats. 1981, ch. 928, § 2) and the Legislative Analyst observed in the voters’ pamphlet that new section 6331 is superfluous and “has no effect.” (Ballot Pamp., supra, p. 55.) Assuming that this conclusion is correct, the section being a nullity, any procedural defect in adopting that section must be deemed harmless, especially in view of the severability clause (§ 10) in Proposition 8.
b. Bail Amendment
Proposition 8 added a new provision to the Constitution regarding the right to release on bail or on one‘s own recognizance. (
First, nothing in
Next, we observe that the voters’ pamphlet for the June 1982 primary contained a “Text of Proposed Law” which set forth the entire text of former article I, section 12, in “strikeout type,” indicating that this provision would be “deleted” by Proposition 8. We may fairly assume that the voters duly considered the text set forth in the voters’ pamphlet prior to casting their vote. (Amador, 22 Cal.3d at pp. 231, 243-244.)
Finally, as previously noted, it may be that a substantial part of the bail provisions of Proposition 8 never took effect. We are advised that Proposition 4 on the June 1982 ballot received a greater number of votes than Proposition 8, in which event Proposition 4 would prevail as to those matters inconsistent with the latter measure. (See
c. Repeal of Statutes by Implication
Petitioners contend that Proposition 8 is void to the extent that it amends or repeals by implication various statutory provisions not identified (by section number, title or text) in the measure. In advancing this argument petitioners point to new article I, section 28, subdivision (d), of the Constitution, which provides that, with the exception of the several statutory exceptions specified therein, “relevant evidence shall not be excluded in any criminal proceeding ....”
Initially, we question whether the provisions of
In Wallace v. Zinman (1927) 200 Cal. 585, 590-591 [254 P. 946, 62 A.L.R. 1341], the court held that the subject/title requirements of the predecessor (
Furthermore, we expressly held more recently that this same predecessor provision was inapplicable to constitutional amendments which were adopted by initiative. (Prince v. City & County of S.F. (1957) 48 Cal.2d 472, 475 [311 P.2d 544].) As we stated in Prince, “Article IV of the Constitution deals with the ‘Legislative Department’ and section 24 is intended to be and has been limited to legislative enactments under the Constitution. [Citations.]” Therefore, because the “truth-in-evidence” provision of Proposition 8 is contained in a constitutional amendment (
Moreover, even were we to assume that the provisions of
Evans, again, is illustrative. As we have previously noted, the Legislature adopted the
It may be true, as petitioners state, that Proposition 8 has amended or repealed, by implication, various statutory provisions not specified in the text of that measure. Yet as we pointed out long ago in Hellman, supra, “To say that every statute which thus affects the operation of another is therefore an amendment of it would introduce into the law an element of uncertainty which no one can estimate. It is impossible for the wisest legislator to know in advance how every statute proposed would affect the operation of existing laws.” (114 Cal. at p. 152, italics added.) Similarly, it would have been wholly unrealistic to require the proponents of Proposition 8 to anticipate and specify in advance every change in existing statutory provisions which could be expected to result from the adoption of that measure.
We conclude that Proposition 8 did not violate
Petitioners’ third challenge is that Proposition 8 is invalid as an impermissible impairment of “essential government functions.” They rely on cases which hold as a general proposition that “The initiative . . . is not applicable where ‘the inevitable effect would be greatly to impair or wholly destroy the efficacy of some other governmental power, the practical application of which is essential . . . .’ [Citations.]” (Simpson v. Hite (1950) 36 Cal.2d 125, 134 [222 P.2d 225], italics added; see Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 143, 144 [130 Cal.Rptr. 465, 550 P.2d 1001] [mere “speculative consequences” are insufficient].) We assume, for purposes of discussion, that the principles of these cases (which involve local initiative or referendum measures) are equally applicable to measures of statewide application.
Petitioners conjure several supposed consequences of Proposition 8 which “will severely impair the functioning of the courts, the Department of Corrections and the public school system.” As will appear, however, none of these consequences is as inevitable as petitioners suggest. Indeed, we may assume that the courts and other agencies, interpreting and applying the various provisions of Proposition 8, will approach their task with a view toward preserving, rather than destroying, the essential functions of government.
First, petitioners predict that the measure‘s restrictions upon plea bargaining will have a “most damaging effect” upon already crowded court calendars. Even assuming that this prediction is accurate, we cannot accept petitioners’ underlying premise that an initiative measure which, as a collateral effect, may aggravate court congestion is void under the Simpson principle. In Simpson we examined an initiative measure which would have directly prevented a local board of supervisors from designating a site for court buildings. We stressed that, among other adverse effects, such an initiative “could interfere with the functioning of the courts by depriving them of the quarters which the supervisors were bound to, and in good faith sought to, furnish.” (36 Cal.2d at p. 133; see also Geiger v. Board of Supervisors (1957) 48 Cal.2d 832, 839 [313 P.2d 545] [referendum inapplicable to repeal local sales and use tax]; Chase v. Kalber (1915) 28 Cal.App. 561, 569-570 [153 P. 397] [referendum inapplicable to repeal street improvement ordinance].) No such constricting effect on court operations is herein presented. While plea bargaining may well be a useful device in reduc-
For similar reasons, we reject petitioners’ assertion that a “breakdown of the justice system” will inevitably result from (1) giving crime victims an opportunity to appear in both felony and misdemeanor cases, and (2) imposing greater punishment on defendants whose multiple offenses are tried separately. Assuming arguendo that petitioners’ characterization of the legal effect of Proposition 8 is correct in these respects, any supposed “breakdown” is wholly speculative. Unlike petitioners, we cannot presume that most crime victims will accept the opportunity (and accompanying embarrassment and inconvenience) of testifying at misdemeanor trials, or that most prosecutors will forego the obvious concrete advantages of consolidated trials in the hope of securing an aggravated term for “habitual” offenders.
Petitioners next predict that Proposition 8‘s more severe sentencing provisions will increase California‘s prison population to an extent exceeding the state budget for prison expenditures. Again, the point is entirely conjectural; one might as readily argue that the measure will deter persons who otherwise might resort to crime, thereby reducing the prison population. Either contention involves pure guesswork and, in any event, we find no authority for the proposition that an initiative measure may be declared invalid solely by reason of the high financial cost of implementing it.
Finally, petitioners assert that Proposition 8‘s creation of a “right of safety” for students and staff of public schools “might very well herald the end of public education as we know it.” Petitioners suggest that enforcement of the right of safety might entail substantial increased expenditures for school security guards, safety devices, and payments of tort damages and legal fees at the cost of books, equipment, and more
We conclude that Proposition 8 does not on its face constitute an undue impairment of essential governmental functions under the Simpson rule.
V. CONSTITUTIONAL REVISION OR AMENDMENT
Petitioner‘s final argument is that Proposition 8 is such a “drastic and far-reaching” measure as to constitute a “revision” of the state Constitution rather than a mere “amendment” thereof. Faced with an identical argument in Amador, we acknowledged, “although the voters may accomplish an amendment by the initiative process, a constitutional revision may be adopted only after the convening of a constitutional convention and popular ratification or by legislative submission to the people.” (22 Cal.3d at p. 221; see
In evaluating this contention, we employ a dual analysis, examining both the quantitative and qualitative effects of Proposition 8 upon our constitutional scheme. (Amador, 22 Cal.3d at p. 223.)
On its face, the measure has a limited quantitative effect, repealing only one constitutional section (
From a qualitative point of view, while Proposition 8 does accomplish substantial changes in our criminal justice system, even in combination these changes fall considerably short of constituting “such far reaching changes in the nature of our basic governmental plan as to amount to a revision . . . .” (Amador, 22 Cal.3d at p. 223, italics added; see McFadden v. Jordan, supra, 32 Cal.2d 330, 348.)
It is further suggested that because of its reference to various sections of the
No such amendments have as yet taken place, of course, and the propriety or validity of any such amendment poses questions which are not presently before us. Moreover, no authority is cited for the proposition that the Constitution may not incorporate by reference the terms of an existing statute, or authorize the Legislature to define terms or modify rules upon which constitutional provisions are based. A random inspection of the Constitution readily reveals the fallacy of these arguments. There is ample contrary precedent. (As to the first proposition, see, e.g.,
For the above reasons, nothing contained in Proposition 8 necessarily or inevitably will alter the basic governmental framework set forth in our Constitution. It follows that Proposition 8 did not accomplish a “revision” of the Constitution within the meaning of
VI. CONCLUSION
In Associated Home Builders, etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038], Justice Tobriner, referring to the law creating the initiative and referendum procedures, said: “Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them. Declaring it ‘the duty of the court to jealously guard this right of the people’ [citation], the courts have described the initiative and referendum as articulating ‘one of the most precious rights of our democratic process’ [citation]. ‘[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’ [Citations.]” (Ibid., fns. omitted.)
Consistent with our firmly established precedent, we have jealously guarded this precious right, giving the initiative‘s terms a liberal construction, and resolving reasonable doubts in favor of the people‘s exercise of their reserved power. We conclude that Proposition 8 survives each of the four constitutional challenges raised by petitioners.
The alternative writ previously issued is discharged and the peremptory writ is denied.
Newman, J., Kaus, J., and Reynoso, J., concurred.
BIRD, C. J.—I respectfully dissent. Today, a bare majority of this court obliterates one section of the state Constitution by effectively repealing the single-subject rule. It then proceeds to wink at other violations of the Constitution, thereby setting dangerous precedents and giving future draftsmen of initiative measures the message that they may proceed unrestrained by the Constitution.
I.
Petitioners challenge the validity of Proposition 8, the “Victims’ Bill of Rights” initiative, submitted to the voters on June 8, 1982. This court must decide whether the draftsmen of the initiative (1) violated the Constitution‘s single-subject rule (
The day after the primary election, three taxpayers filed a petition for writ of mandate and/or prohibition in the Court of Appeal, challenging the constitutionality of Proposition 8. On June 14th, the Attorney General petitioned this court to transfer the cause from the Court of Appeal. His petition was granted, the cause was transferred, and an alternative writ of prohibition was issued. Directly thereafter, the case was set for oral argument.
The issues presented are of great public importance, and the parties have properly invoked the exercise of this court‘s original jurisdiction. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219 [149 Cal.Rptr. 239, 583 P.2d 1281] [hereafter Amador Valley].)
This court must decide whether the “multifarious” provisions of Proposition 8 violate the people‘s mandate as set forth in the California Constitution that no initiative may contain more than a single subject.
The initiative contains a plethora of provisions.1 The first section labels the proposal the “Victims’ Bill of Rights.” The next two amend the California Constitution, the first by reрealing section 12 of article I,2 and the second by adding a new section 28 to article I.
The new section 28 provides that (1) “all persons who suffer losses” as a result of crime have the right to restitution from those convicted of the crimes (subd. (b)); (2) students and staff of public schools have “the inalienable right” to attend “safe, secure and peaceful” campuses (subd. (c)); (3) with certain exceptions, “relevant evidence shall not be excluded in any criminal proceeding” (subd. (d)); (4) the constitutional right to bail is curtailed (subd. (e)); and (5) all prior felony convictions,
The next six sections of the initiative add five new statutes to the
A similar limitation on the Legislature, requiring that statutes embrace but a single subject, has been a feature of our state Constitution since 1849. (See current
In California, the legislative single-subject rule has long been interpreted as requiring that all the provisions of a legislative enactment be “interdependent” and “reasonably germane’ to each other.” (See, e.g., Amador Valley, supra, 22 Cal.3d at p. 230; Evans v. Superior Court (1932) 215 Cal. 58, 62 [8 P.2d 467], and cases cited; Ex parte Liddell (1892) 93 Cal. 633, 637-638 [29 P. 251].) “Provisions governing projects so related and interdependent as to constitute a single scheme may be properly included within a single act. . . . A provision which . . . is auxiliary to and promotive of [the act‘s] main purpose, or has a necessary and natural connection with such purpose is germаne within the rule.” (Evans, supra, 215 Cal. at pp. 62-63, italics added.)
This standard has frequently been applied to legislative enactments. (See, e.g., Metropolitan Water Dist. v. Marquardt (1963) 59 Cal.2d 159, 172-173 [28 Cal.Rptr. 724, 379 P.2d 28]; Barber v. Galloway (1924) 195 Cal. 1, 12-13 [231 P. 34]; see also Tarpey v. McClure (1923) 190 Cal. 593, 597 [213 P. 983] [examining whether the provisions of an act were “legitimately and intimately connected one with another“]; Robinson v. Kerrigan (1907) 151 Cal. 40, 51 [90 P. 129] [considering whether provisions were “necessary to make [an act] effective and symmetrical” or “reasonably necessary as means for attaining the object of the act“]; Ex parte Liddell, supra, 93 Cal. at pp. 637-638.)
The important concerns underlying the legislative single-subject limitation were noted by this court in 1881. “The practice . . . of comprising in one bill subjects of a diverse and antagonistic nature, in order to combine in its support members who were in favor of particular measures, but neither of which could command the requisite majority on its own merits, was found to be not [only] a corruptive influence in the Legislature itself, but destructive of the best interests of the State.” (People v. Parks (1881) 58 Cal. 624, 640.)
The initiative and referendum provisions of our state Constitution were adopted in 1911. At that time, no specific provision of the Constitution limited initiatives to a single subject. However, the policies underlying the legislative single-subject requirement apply with equal, if not greater, force to initiative measures.
By contrast, initiatives are drafted only by their proponents, so there is usually no independent review by anyone else. There are no public hearings. The draftsmen so monopolize the process that they completely control who is given the opportunity to comment on or criticize the proposal before it appears on the ballot.
This private process can and does have some detrimental consequences. The voters have no opportunity to propose amendments or revisions. (Compare
Since the only people who have input into the drafting of the measure are its proponents, there is no opportunity for compromise or negotiation. “The result of this inflexibility is that more often than not a proposed initiative represents the most extreme form of law which is considered politically expedient.” (Schmitz v. Younger (1978) 21 Cal.3d 90, 99 [145 Cal.Rptr. 517, 577 P.2d 652] (dis. opn. of Manuel, J.).)
Finally, the initiative process renders it difficult for the individual voter to become fully informed аbout any particular proposal. “Voters have neither the time nor the resources to mount an in depth investigation of a proposed initiative.” (Ibid.; see also The California Initiative Process, supra, 48 So.Cal.L.Rev. at pp. 934-939.)
“‘The majority of qualified electors are so much interested in managing their own affairs that they have no time carefully to consider measures affecting the general public. A great number of voters undoubtedly have a superficial knowledge of proposed laws to be voted upon, which is derived from newspaper comments or from conversation with their associates . . . . [T]he assertion may safely be ventured that it is
As a direct result of these concerns, the Legislature placed on the general election ballot in 1948 a constitutional amendment to provide that initiative measures be limited to one subject. The ballot pamphlet argument in support of this measure noted the dangers of voter confusion and lack of information inherent in the initiative process.7 That statement informed the voters that the adoption of a single-subject restriction in the Constitution would help ensure that the electorate would have an opportunity to fully analyze and evaluate an initiative measure. (Ballot Pamp., Gen. Elec. (Nov. 2, 1948) pp. 8-9.)
The ballot pamphlet statement further emphasized the risk that a multi-subject initiative might mislead the electorate as to the true import of the measure. This, in turn, would lead the voters to adopt an initiative because they favored some of its provisions, without realizing the effect of other, less-publicized sections.
“Today, any proposition may be submitted to the voters by initiative and it may contain any number of subjects. By this device a proposition may contain 20 good features, but have one bad one secreted among the 20 good ones. The busy voter does not have the time to devote to the study of long, wordy, propositions and must rely upon such sketchy information as may be received through the press, radio or picked up in general conversation. If improper emphasis is placed upon one feature and the remaining features ignored, or if there is a failure to study the entire proposed amendment, the voter may be misled as to the over-all effect of the proposed amendment. [¶] [The single-subject rule] entirely eliminates the possibility of such confusion inasmuch as it will limit each proposed amendment to one subject and one subject only.” (Ballot Pamp., Gen. Elec. (Nov. 2, 1948) pp. 8-9, italics added.)
The single-subject amendment may have been spurred by the initiative measure analyzed in McFadden v. Jordan (1948) 32 Cal.2d 330
These statements reflect the separate dangers posed by an initiative which contains multiple subjects. First, there is a risk that voters will be unaware of the contents of an initiative‘s disparate provisions. Second, there is a danger that an initiative will pass not because a majority of the voters favor any or all of its provisions, but because minorities who advocate some of its parts will aggregate their votes, giving it a false majority. Finally, the combination of numerous subjects in one initiative deprives the voters of their right to vote independently on the merits of each separate proposal. Voters who favor some of a measure‘s provisions must choose to vote for all or none.
The single-subject rule, adopted by the electorate in 1948, addresses all of these problems. The requirement that an initiative embrace but one subject narrows the breadth of the issues which a voter must examine and evaluate. It enables the voter to obtain a clear idea of the contents of an initiative from a quick survey of its general provisions. In addition, a voter‘s freedom of choice is protected by preventing initiative sponsors from forcing the electorate to vote for undesired provisions in order to enact favored sections.
Thus, the draftsmen of an initiative measure are required to submit their proposal in a form which enables the voters to make intelligent, informed and discriminating choices. By adopting a constitutional amendment which minimizes the potential for deception, fraud, forced compromises and false majorities, the people of this state have indicated a clear desire to protect themselves from the dangers posed by multi-subject initiatives.
Shortly after the single-subject rule for initiatives was adopted, this court was called upon to interpret the requirement in Perry v. Jordan (1949) 34 Cal.2d 87 [207 P.2d 47]. The initiative challenged in that case sought to repeal an article of the Constitution concerning aid to the aged and blind. The court found that the article attacked by the initiative constituted but one subject. That article covered the level of aid, eligibility requirements, and the machinery necessary to administer the aid program. The court held that these provisions were “so related and interdependent as to constitute a single scheme,” and, therefore, did not violate the single-subject rule. (Id., at pp. 92-93, quoting Evans v. Superior Court, supra, 215 Cal. at p. 62.)
Recently, this court unanimously reaffirmed the standards set forth in Perry and Evans. The court held that compliance with the single-subject rule requires that an initiative‘s provisions be “reasonably interrelated and interdependent, forming an interlocking ‘package’ . . . .” (Amador Valley, supra, 22 Cal.3d at p. 231, italics added.)
The decision in Amador Valley emphasized the importance of the relationship among an initiative‘s separate features. In rejecting a single-subject attack on an initiative that added
The first two provisions specifically limited property taxes. The third and fourth limited the method by which other state and local taxes could be altered. Petitioners in Amador Valley argued that the provisions regarding state and local taxation did not involve the same subject as those regarding property taxes. The court, however, concluded that the limits on nonproperty taxes were necessary to effectuate the property tax relief which was the central subject of the initiative. “[A]ny tax savings resulting from the operation of sections 1 and 2 could be withdrawn or depleted by additional or increased state or local levies of
Indeed, interdependence of that initiative‘s provisions was the precise basis on which this court carefully distinguished the decision of the Arizona Supreme Court in Kerby v. Luhrs (1934) 44 Ariz. 208 [36 P.2d 549, 94 A.L.R. 1502]. The Arizona case held that an initiative which proposed a new tax on copper production, a new method of evaluating public utility property, and a new state tax commission, violated the single-subject requirement of the Arizona Constitution.
This court observed that although the рrovisions at issue in the Arizona case all dealt with “taxation,” they were not “interdependent” or “interlock[ing].” Any of the provisions in Kerby “singly, could have been adopted ‘without the slightest need of adopting’ the others.” (Amador Valley, supra, 22 Cal.3d at p. 232.) By contrast, “the four elements [of the initiative measure in Amador Valley] not only pertain to the general subject of taxation, but also are reasonably interdependent and functionally related to each other . . . . Each of the four basic elements of [the initiative] was designed to interlock with the others to assure an effective tax relief program.” (Ibid., italics added.)
Respondents are incorrect when they argue that the requirement that an initiative‘s provisions be “reasonably interrelated and interdependent” was abandoned in Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 37-43 [157 Cal.Rptr. 855, 599 P.2d 46]. The plurality opinion in that case does not support respondent‘s position. First, only three justices joined the lead opinion. Neither the analysis nor the language employed in that opinion constitutes binding precedent, since it did not represent a majority view of this court. (Del Mar Water, etc. Co. v. Eshleman (1914) 167 Cal. 666, 682 [140 P. 591].)
In addition, although the plurality opinion purported to rely on the “reasonably germane” standard, it curiously failed to apply this court‘s longstanding interpretation of that term as requiring interdependence of all the provisions of an initiative. (See Evans v. Superior Court, supra, 215 Cal. at pp. 62-63.) Respondents stretch both law and logic when they argue that three justices of this court overruled a long line of cases sub silentio.
The single-subject rule thus requires that the separate provisions of an initiative submitted to the voters not only “pertain” to the same subject, but also be “reasonably germane’ to each other.” (Amador Valley, supra, 22 Cal.3d at p. 230.) The various parts must “interlock” so as to form a cohesive program aimed at the specific purpose of the initiative. (Ibid.) Evaluated in light of this standard, Proposition 8 does not meet the single-subject requirement of our state Constitution.8
The multiple provisions of Proposition 8 are much broader than the initiative‘s self-proclaimed title or the official title prepared for the ballot pamphlet by the Attorney General. The proposition denominated itself the “Victims’ Bill of Rights,” while the Attorney General called it the “Criminal Justice” initiative. Both of these appellations are deceptive.
Initially, only two aspects of the initiative relate directly to victims—restitution and victims’ statements at sentencing and parole hearings. The numerous sections of the initiative revising criminal procedures may have an incidental effect on the victims of crimе, but some may actually harm victims rather than protect them.
For instance, the constitutional amendment providing that all relevant evidence is admissible in criminal proceedings appears to eliminate statutory protections for victims of crime, such as the
The “Truth-in-Evidence” provision also curtails other rights presently enjoyed by our citizens. It appears to authorize the admission of evidence of a victim‘s past conduct or character that might otherwise have been excluded. (See, e.g.,
Consider also the limitation on plea bargaining which may pose a serious problem for some victims. Many victims of crime—particularly young children and victims of sexual assaults—do not want to be forced to relive their ordeal on the witness stand at a trial. They may prefer that the charges against their assailants be settled before trial by means of a reasonable plea bargain, to avoid the agony of testifying at public trial. However, in many situations Proposition 8 bars the court and the prosecutor from considering a negotiated settlement to protect the victim. Clearly, in many of its most important provisions the proposition is not a “Victims’ Bill of Rights” at all.
The voters were misled by the titles proposed by the draftsmen and the Attorney General. The section of the initiative creating a right to “safe, secure and peaceful” schools is not encompassed within either of the titles set forth in the ballot pamphlet. The right to personal safety, security and peace is not limited to safety from criminal violence. The initiative purports to grant to students and staff a right to protection from every danger that might threaten their safety, security or peace. This undefined right could encompass such diverse hazards as acts of nature, acts of war, environmental risks, building code violations, disruptive noises, disease and pestilence, and even psychological or emotional threats, as well as crime. The right to protection from noise or fire is not the same subject as “victims’ rights” or “criminal justice.”10
The initial flaw in this argument is that it does not explain the relevance of the provision guaranteeing “safe, secure and peaceful” schools. That provision is not limited to protecting persons from crime.
The Attorney General‘s argument has additional shortcomings. The fact that he must transform the “Victims’ Bill of Rights” into the “Victims’ and Potential Victims’ Bill of Rights” in an attempt to encompass all of its provisions within a “single subject” illustrates a fatal problem with this initiative. As used by the Attorney General, “potential victims” of crime includes all of us in virtually every aspect of our lives. If this court were to accept such an expansive definition of a single subject, initiatives could embrace hundreds of unconnected statutes, countless rules of court and volumes of judicial decisions, as well as completely alter the complex interrelationships of our society.
The single-subject rule would be rendered meaningless if it could be complied with simply by devising some general concept expansive enough to encompass all of an initiative‘s provisions. If the requirement of the rule could be so easily met, any initiative could be upheld by finding that all of its provisions fell within some catchall subject such as “the general welfare” or “the citizenry.”
As Justice Mosk noted in Brosnahan v. Eu, supra, “The constitutional requirement is not satisfied by attaching a broad label to a measure and then claiming that its provisions are encompassed under that wide umbrella. Otherwise, initiatives which refer to ‘property’ or ‘women’ or
tial” victims. However, the language of the proposition is not so limited. It affords students and staff an “inalienable right” to “safe, secure and peaceful” schools. There is no indication that this broadly worded right was intended to protect against only one particular danger.
The Attorney General is correct in noting that this court has upheld measures addressing subjects as broad as “probate” (Evans v. Superior Court, supra, 215 Cal. 58), “water resources” (Metropolitan Water Dist. v. Marquardt, supra, 59 Cal.2d 159), and “real property tax relief” (Amador Valley, supra, 22 Cal.3d 208). However, these “single subjects” differ in two crucial respects from the subject proposed by the Attorney General in this case.
First, each of the subjects upheld in Evans, Metropolitan Water Dist. and Amador Valley is focused on a well-defined aspect of our society. None is as broad or as amorphous as “potential victims.”
Equally important, the statutes and initiatives upheld in those cases passed constitutional muster because their provisions were all interrelated. Where the subject of a proposal encompasses multiple provisions, the measure will satisfy the requirements of the single-subject rule only if those provisions interrelate so as to form a unitary whole. This court has consistently held that the “reasonably germane” standard of the single-subject rule demands that the provisions of an act or initiative be “so related and interdependent as to constitute a single scheme . . . .” (Evans v. Superior Court, supra, 215 Cal. at p. 62; Amador Valley, supra, 22 Cal.3d at p. 230; Metropolitan Water Dist. v. Marquardt, supra, 59 Cal.2d at p. 173.)
The rule articulated in these cases controls here. Any single provision of Proposition 8 “could have been adopted ‘without the slightest need of adopting’ the others.” (Amador Valley, supra, 22 Cal.3d at p. 232, quoting Kerby v. Luhrs, supra, 36 P.2d at p. 554.) Even if a given provision of Proposition 8 may be said to interlock with another, the remainder are completely independent and unnecessary to the effective implementation of that interlocking area.
The provision creating a right to safe schools is the most striking example of this independence. None of the other provisions of this initiative are even remotely connected to implementing that right.
Further, under a faithful interpretation of the single-subject rule, the remaining provisions of Proposition 8 clearly “embrac[e] more than one subject.” The measure is replete with proposals for important policy changes, many of which are enormously complex. This aggregation into one initiative measure of so many far-reaching, yet unrelated, proposals sharply conflicts with the fundamental concerns underlying the single-subject rule.
The “Truth-in-Evidence” provision presents a striking illustration of the multiplicity of subjects contained in Proposition 8. That section undertakes a major revision of a complicated area of the law. It appears in effect to amend dozens of sections of the
The constitutional and practical ramifications of these changes are startling. Every criminal proceeding in the state would be affected, and each trial will have its own ad hoc rules of evidence. Yet, this wholesale revision of our state‘s rules of evidence was insinuated into an initiative containing such other controversial and disparate subjects as bail and own-recognizance release, the insanity defense, plea bargaining, juvenile justice, and the lаws governing mentally disordered sex offenders.
The consequences of the proposition‘s limitation on plea bargaining could be even greater than those resulting from the changes wrought by the “Truth-in-Evidence” section. Over 95 percent of the criminal convictions in California have heretofore been reached through plea bargains. (Cal. Dept. of Justice, Crime & Delinquency in Cal. (1981) p. 48.) The voters were not informed of the possible effect of a wholesale ban in the superior court on a practice so integral to the present criminal justice system. As a result, they were never given the opportunity to weigh the possible high price they might have to pay for a vast increase in the number of criminal trials. They were never made aware
Also, consider the provision of the initiative which purports to mandate the use of all prior felony convictions, “adult or juvenile,” for impeachment and sentence enhancement. With these few words, juvenile court adjudications may have been transformed into the equivalent of adult convictions. Such a change represents a fundamental alteration of the policies which have long required a distinction between the treatment of juvenile and adult offenders. Yet, the voters were forced to pass judgment on this major change as only one small portion of an all-or-nothing package involving many unrelated but equally basic changes.
Other provisions of the initiative also demonstrate that Proposition 8 confronted the voters with an unconstitutional grouping of unconnected subjects. For example, the right to restitution is not related to the rules of evidence, bail release or the use of prior convictions. The provisions governing diminished capacity and insanity, while arguably related to each other, are not interdependent with the provisions governing victims’ statements at sentencing and parole hearings or with the limitations on commitments to the Youth Authority.
Legislative developments at the time Proposition 8 was drafted and petitions circulated provide further evidence of the independence of the measure‘s provisions. During that period a substantial number of bills were before the Legislature relating to portions of Proposition 8. According to amicus Pacific Legal Foundation, there were more than a dozen such bills, each “closely relatеd” to one of eleven “provisions” of the initiative measure.
Significantly, each of these bills concerned but one field of legislation and pertained to only one of the provisions of Proposition 8. None had a scope even remotely resembling that of the initiative. By contrast, the draftsmen of this initiative sought to collect and combine into one package all of the diverse legislative fields addressed by all these individual bills.11
The narrow focus of the bills before the Legislature suggests that it viewed each of them as an independent subject properly submitted as a separate proposal. Certainly, the single-subject rule applies with no less force to the draftsmen of initiatives than to legislators. The sheer number and diversity of legislative bills sought to be wedged without interlock into one initiative is further evidence that the measure embraced more than one subject.
The Attorney General points to the result in Fair Political Practices Com. v. Superior Court, supra, 25 Cal.3d 33 to support his claim that Proposition 8 embraces but one subject. His reliance on that case is misplaced. The Fair Political Practices initiative concerned a comprehensive attempt to lessen the influence of wealth on California government and elections. There, the court apparently felt that each of its provisions was necessary to achieving that goal, by preventing the mere shift of wealth from one sphere of political influence to another. The provisions were also linked by common means of enforcement. Moreover, unlike Proposition 8, none of the provisions contradicted the initiative‘s general purpose, and none was unrelated to the common goal.
Finally, the general subject of the initiative, the corruptive influence of money in politics, was specifically addressed by a constitutional provision which reserves to the people the right to act by initiative to protect themselves against such corruption.
Each of these factors distinguishes the Fair Political Practices initiative from Proposition 8, and highlights the drafting deficiencies which render Proposition 8 constitutionally invalid.
Not only does Proposition 8 violate the terms of the single-subject rule as set forth in the case law, it also flouts the policy concerns underlying the voters’ enactment of the rule in the first place.
The disparate votes on Proposition 8 and Proposition 4, a bail reform initiative on the same ballot, provide a vivid illustration of the dilemma Proposition 8 created for the voters of the state. Proposition 4 passed with over 82 percent of the electorate voting in its favor. Proposition 8 received only 56 percent of the votes cast. These figures seem to indicate that over 25 percent of the voters favored bail reform but nevertheless voted against Proposition 8 because they opposed other provisions included in the measure. Here is yet another graphic example that the voters of California were deprived of their constitutionally protected right to be able to evaluate independently each proposal of an initiative.
In essence, the draftsmen confronted the voters with a Hobson‘s choice, an electoral contract of adhesion. Had the separate provisions of the initiative been interdependent, it might have been reasonable to ask the electorate to vote on the entire initiative as a package. Since they were independent, encompassing a wide variety of disparate and conflicting concepts, the voters were deprived of their constitutional right to consider the proposals individually and to evaluate each in a more discriminating fashion.
The “multifarious” nature of this initiative created an additional problem. When the voters of California went to the polls on June 8, 1982, it is unlikely they were fully aware of all of the provisions of Proposition 8.
Can anyone seriously argue that the voters knew that Proposition 8 would (1) abolish the protection previously afforded to victims of sex crimes regarding the “exclu[sion] from evidence [of their] current address and telephone number” (
Thosе voters who relied on section 1 of the initiative may well have assumed that they were voting for a “Victims’ Bill of Rights” without realizing that they were also adopting a new provision guaranteeing “safe, secure and peaceful” schools (for which they might have to pay a steep price) and substantially revising pretrial detention practices, rules of criminal evidence, criminal procedure, sentencing, and juvenile law. Similarly, those who relied on the accuracy of the title, “Criminal Justice” initiative, may well have been unaware of the provision affecting schools.
The risk that the electorate was unaware of many of Proposition 8‘s provisions was aggravated by the numerous inconsistencies among the initiative‘s various sections. The most glaring example is the contrast between the proposition‘s self-proclaimed title, the “Victims’ Bill of Rights,” and the fact that many provisions of the initiative may actually be harmful to victims of crime.
Additional examples abound. For instance, while one section states that generally, “relevant evidence shall not be excluded in any criminal proceeding,” another section specifically requires the exclusion of evidence of lack of capacity to form a specified mental intent. (Compare Prop. 8, § 3, new
The initiative presented the additional danger of “logrolling“—aggregating the votes of those who favored parts of it into a majority for the whole, even though it was possible that some or all of its provisions were not supported by a majority of voters. Thus, those who favored better protection for victims of crime may not have favored a wholesale repeal of the state‘s Evidence Code, which may allow victims of crime to be subjected to searing cross-examination concerning their private lives. In like manner, those who wanted to ban plea bargaining may not have wanted to pay the high price in taxes necessary to ensure that schools are safe and secure from acts of nature or of man.
In a final, overarching attack on petitioners’ claim that the single-subject rule has been violated, thе Attorney General claims that a “strict” interpretation of the rule violates precedent. However, he overlooks the fact that the standard applied here is the same as that applied in Amador Valley. In turn, Amador Valley described that standard as the “primary lesson” of another case which involved an initiative measure and was decided 30 years earlier. (22 Cal.3d at p. 230, referring to Perry v. Jordan, supra, 34 Cal.2d 87.) Even prior to Perry, it had long been established that the provisions of a single act should be “so related and interdependent as to constitute a single scheme.” (Evans v. Superior Court, supra, 215 Cal. at p. 62.)
The single-subject rule does not prevent the submission to the voters of comprehensive programs of reform. Rather, it merely limits the form in which such programs may be presented. If proposed constitutional or statutory changes embrace more than one subject, they must be presented to the voters in more than one initiative. The proposed provisions of an initiative must be “‘reasonably germane’ to each other,” creating a coherent, interdependent scheme. (Amador Valley, supra, 22 Cal.3d at p. 230.)
The single-subject requirement thus operates not as a limit on the people‘s reserved power to legislate by initiative, but as a limit on the draftsmen of initiative measures. The rule demands that initiative proposals be presented to the voters in a format that ensures the integrity of the cherished initiative process.
The Constitution permits the drafters of initiative measures to draw up their proposals without any input—direct or indirect—from the people. Thus, it is logical that the draftsmen are constitutionally required to submit initiatives to the electorate in coherent, single-subject packages, so that voters are able to make rational decisions that accurately and completely reflect their wishes. Just as consumers demand the right to buy what they want, the voters of this state have demanded that initiative sponsors give them the right to vote for the proposals they favor.
Initiatives which embrace more than one subject weaken rather than strengthen a citizen‘s right to vote. They threaten to undermine the integrity and strength of the whole initiative process. If the voters are confused or misled, or if they vote for or against a proposal because they favor or oppose one or two of its provisions, the initiative process has not served to implement the will of the people. Rather, it has sanctioned a warped expression of the wishes of some of those people, while thwarting the will of the majority. Only through careful adherence to the objective constitutional regulations governing the initiative process can the true purposes of the right to the initiative be realized. Bending those rules weakens the process, thereby diminishing the people‘s control over their government.12
THE VICTIM‘S BILL OF RIGHTS, LEFTS, UPS, DOWNS, DIAGONALS...
In addition to the constitutional challenge based on the single-subject rule of
Failure to Disclose Full Purpose and Effect
Petitioners contend that the draftsmen of Proposition 8 failed to “disclose on [the] face [of the initiative] the full purpose and effect of its provisions,” as required by
Their arguments are founded upon the last two sentences of that section. These sentences set forth a pair of rules: (1) “A statute may not be amended by reference to its title“; and (2) “A section of a statute may not be amended unless the section is re-enacted as amended.”13 Petitioners allege that the first rule was violated by that portion of Proposition 8 which repealed the law relating to mentally disordered sex offenders (M.D.S.O.). (Prop. 8, § 9.) They further contend that the “Truth-in-Evidence” provision amended by implication nearly all of the
The first of these arguments lacks merit. The attempt by the draftsmen of Proposition 8 to repeal the M.D.S.O. laws was mooted by legislative enactment in 1981. The voters were twice informed of this fact in the ballot pamphlet. (Ballot Pamp., Primary Elec. (June 8, 1982), analysis by Legislative Analyst, p. 55, and rebuttal to argument in favor of Prop. 8, p. 34.) Indeed, the voters were explicitly advised that the initiative measure‘s attempt to repeal the M.D.S.O. laws “has no effect.” (Id., at p. 55.) It would be too severe a rule to hold that the entire proposition should be invalidated for such a technical violation of the prohibition against repeal by reference to a law‘s title. In all probability, no voter confusion was caused by this violation.
Petitioners’ second contention—that numerous statutes relating to the admissibility of evidence were implicitly amended without being “re-enacted as amended“—poses a more difficult question. The purpose of such a constitutional provision is clear. “It is to compel [a proposed law] to disclose on its face something of its purpose and effect ....” (Myers v. Stringham (1925) 195 Cal. 672, 675; see also Brosnahan v. Eu, supra, 31 Cal.3d at p. 12 (conc. and dis. opn. of Mosk, J.).)
There is no case which directly decides whether amendments proposed by statewide initiative are subject to the constitutional requirement of
No reason has been suggested why a statewide initiative should be treated differently from a local initiative or a legislatively enacted statutory amendment in this regard. The purpose of the requirement is equally applicable to statewide initiatives. An amendment by initiative should “disclose on its face something of its purpose and effect ....” (See Myers, supra, 195 Cal. at p. 675.) Indeed, that purpose would seem to be even more important in the context of initiatives since they are frequently drafted by “a small group of people” (Wallace, supra, 200 Cal. at p. 592), without the opportunity for inquiry, explanation, and critical analysis that is available for amendments considered by the Legislature.
It is true that the requirement for reenactment of amended statutes is found in article IV, which deals with “Legislative” matters. However, this fact does not justify the conclusion that the application of the requirement is limited to amendments passed by the Legislature, since the initiative power reserved to the people is itself a reserved legislative power. (See
That the effect of Proposition 8 was to alter a substantial number of statutes is undeniable. Petitioners list more than two dozen statutes the provisions of which have, by necessary implication, been amended by the “Truth-in-Evidence” provision alone. (Prop. 8, § 3; see also ante, at pp. 278-279.) None of these statutes was set forth or reenacted in the initiative measure. Nor were they detailed in the analysis or the arguments in favor of the proposition. Thus, the voters could not have had a realistic idea as to the scope of the statutory changes which would result from the enactment of the measure.
Further, the voters could not possibly have known what existing evidentiary provisions were being preserved. As presented to the electorate, the initiative mandated that “relevant evidence shall not be excluded in any criminal proceeding.” However, it also provided exceptions to this rule for “any existing statutory rule of evidence relating to privilege or hearsay, or
Nowhere were the people even given a hint as to what these exceptions to the relevant evidence rule entailed. Such information was not contained within the four corners of the proposition.
Thus, not only was the electorate unable to detеrmine what statutes were being altered, it also could not determine what statutes were not being changed. In short, the voters had no way of knowing what the law relating to admissibility of evidence would be following the enactment of Proposition 8.
Respondents cite cases which hold that
Further, even if the 1891 act were viewed as amending the Vrooman Act, it would amend “only by implication.” (Id., at p. 152.) Former
The Hellman discussion of amendments by implication was picked up in Evans, supra, 215 Cal. 58. Under attack in Evans was the initial codification by the Legislature of the
The holdings of both Hellman and Evans involved amendatory laws enacted by the Legislature. They did not involve amendments adopted through the initiative process. Sound reasons exist for treating initiative amendments with even more care.
It is the very essence of the legislative process to deal with and become immersed in laws, existing and proposed. A legislator‘s
As the late Justice Wiley Manuel noted, “Voters have neither the time nor the resources to mount an in depth investigation of a proposed initiative.” (Schmitz v. Younger, supra, 21 Cal.3d at p. 99 (dis. opn.); see also Wallace, supra, 200 Cal. at pp. 592-593.) This is not true of legislators. Thus, it makes eminently good sense to attribute to legislators knowledge of the primary purpose and effects of a proposed statutory amendment, even if not explicitly set forth. However, the same cannot be said for the voting public.
Further, the problems posed by Proposition 8 far exceed those addressed in Hellman or Evans. Unlike the amendatory enactments in Hellman and Evans, the initiative measure now before this court is not “complete in itself.” It is not a wholly “independent act.” This is immediately apparent from the fact that the voters could not have determined—either from the initiative measure itself or from the official ballot pamphlet—“what the effect of its adoption would be ....” (See Myers, supra, 195 Cal. at p. 675.)
All that the voters would have been able to ascertain, without spending tedious hours in a law library, was that the initiative measure would create both a rule admitting relevant evidence and several exceptions of undisclosed magnitude. In the language of Hellman, Proposition 8 fails to inform the voter “of the changes made in the laws.”
In this regard, the present case is similar to Myers v. Stringham, supra, 195 Cal. 672. (See Brosnahan v. Eu, supra, 31 Cal.3d at pp. 12-13 (conc. and dis. opn. of Mosk, J.).) In Myers, a proposed local initiative measure sought to amend a city‘s general zoning ordinance by (1) adding a new subsection, describing the boundaries of a plot of land and (2) repealing another subsection, identified only by number. The city charter contained a provision regarding reenactment of amended laws which closely resembled the corresponding portion of former
This court found that the initiative measure violated the charter requirement. “The purpose of the charter provision is plain. It is to
Like the initiative in Myers, the “Truth-in-Evidence” provision of Proposition 8 does not “disclose on its face something of its purpose and effect.” It gives the voters little inkling as to what changes are being made in the current law. The provision purports to impose new rules of evidence throughout the criminal justice system of this state. The voters, when called upon to approve or reject the initiative, could not determine the meaning of those new rules no matter how extensive their inspection of the measure or the ballot pamphlet. They were informed only as to the section numbers, not the content of the statutes being incorporated into the Constitution.
In short, the draftsmen of Proposition 8 failed to disclose to the people the purpose and effect of its provisions. As a result, they violated the constitutional standard set forth in
There is an additional defect of the measure which has apparently escaped the notice of the draftsmen of the initiative as well as those who challenged the measure‘s validity. The draftsmen of Proposition 8 sought to use this one initiative measure to make changes in both our Constitution and our codified laws. Such a combination of statutory and constitutional alterations is unusual.
To our knowledge, only once in this state‘s long history has an attempt been made to join both statutory and constitutional changes in a single initiative. Although this court upheld that initiative against a one-subject attack in Perry v. Jordan, supra, 34 Cal.2d 87, the court did not consider the propriety of combining statutory and constitutional changes in a single initiative. Indeed, the court did not appear to recognize that the initiative before it contained proposals for statutory change.
Unfortunately, the majority ignores the issue of combining statutory and constitutional changes in a single initiative, giving no guidance to drafters of future initiatives other than a green light to go and violate the Constitution with impunity.
Revision or Amendment
The subject of “Amending and Revising the Constitution” is covered by
The courts have long been aware of the “fundamental distinction” between a constitutional revision and a constitutional amendment. (See Amador Valley, supra, 22 Cal.3d at p. 222; see also Livermore v. Waite (1894) 102 Cal. 113, 117-119.) Thus, it is firmly established that the initiative process may be used to amend our Constitution, but not to revise it. (Amador Valley, supra, 22 Cal.3d at p. 221; McFadden v. Jordan, supra, 32 Cal.2d at pp. 331-334.)
In 1948, this court struck down as a “revision” an initiative proposal that would have effected “extensive alterations in the basic plan and substance of our present Constitution ....” (McFadden, supra, 32 Cal.2d at p. 347.) The initiative challenged in McFadden would have added 21,000 words to the Constitution and would have repealed or substantially altered 15 of its 25 articles.
Included within the “vast sweep” of the measure were matters “from gamblers to ministers; from mines to civic centers; from fish to oleomargarine; from state courts to city budgets; from liquor control to senate reapportionment ....” (Id., at p. 349.) This court seemed most troubled by the initiative‘s creation of a new commission, whose virtually unfettered exercise of far-reaching powers would have placed it “substantially beyond the system of checks and balances which heretofore has characterized our governmental plan.” (Id., at p. 348.)
Recently, this court spoke to the issue as it applied to the enactment by initiative of article XIII A. (Amador Valley, supra, 22 Cal.3d 208.) A dual test, “quantitative and qualitative in nature,” was applied. “[A]n enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.” (Id., at p. 223.)
Under the particular theories advanced by the petitioners, it would appear that the “Victims’ Bill of Rights” does not amount to a constitutional revision. Considering the measure‘s quantitative effect, it bears noting that less than half of the measure purports to change the content of the Constitution. The remainder of the proposition alters statutes, and by its very terms, the prohibition of revision by initiative applies to constitutional, not statutory, changes.
Only sections 2 and 3 of the initiative purport to directly alter the Constitution itself. They repeal one section of article I and add another. The net effect is the addition of about 660 words to our Constitution. This may be more words than were added by Proposition 13 (400 words), but in purely quantitative terms, it cannot be said to be so substantial as to amount to a revision of a document that already contains 21 articles, 277 sections, and approximately 35,000 words.
Petitioners’ primary contention is that Proposition 8 fails the qualitative test of Amador Valley and McFadden. They argue that the measure accomplishes “far reaching changes in the nature of our basic governmental plan,” by altering our court system and our system of public education. (See Amador Valley, supra, 22 Cal.3d at p. 223.)
Sections of Proposition 8 do make significant substantive changes across an extensive range of subjects, but these changes relate primarily to matters which previously had been covered by statute and were not a part of the Constitution. For example, the so-called “Truth-in-Evidence” provision would appear to alter by implication many of this state‘s evidentiary rules. (See Prop. 8, § 3, subd. (d).) However, most of these rules are statutory or have been developed over the years in the common law. Since petitioners have not argued that Proposition 8‘s
Petitioners contend that Proposition 8 will prevent the judiciary from processing civil cases, in violation of
This backlog of criminal cases will be caused, it is said, by the enactment of the Penal Code provisions which (1) limit plea bargaining (
Petitioners also foresee serious consequences for our system of public education as a result of the provisions in Proposition 8 regarding the right to “safe, secure and peaceful” schools. (
These predictions may well be accurate, but they do not justify the legal conclusion that Proposition 8 amounts to a constitutional revision, rather than an amendment, under the present state of the case law. (See Amador Valley, supra, 22 Cal.3d at pp. 223-224.)
Moreover, each argument is premised on assumptions concerning matters that are outside the four corners of the initiative measure itself, i.e., that there will be insufficient resources to cope with the changes mandated therein. No hard facts have been produced. This court has been and should continue to be reluctant to declare an initiative measure to be a revision based solely on speculation as to its fiscal effect.
There is, however, a serious problem presented by the manner in which the draftsmen of Proposition 8 attempted to alter the Constitution.
Proposition 8 created a new section of the Constitution which contains direct reference to a specific statutory provision of the
Statutes, of course, may generally be amended by the Legislature without the necessity of referral to, and approval by, the people. However, the Constitution has established special rules for amending statutes (like
That is precisely the situation in the present case. The draftsmen of Proposition 8 explicitly provided a mechanism by which the Legislature, by a two-thirds vote and without the people‘s participation, can amend
The flaw in this scheme is evident. It deprives the people of this state of their paramount role in approving or rejecting changes in their Constitution. In effect, it revises the Constitution by creating a method by which that document may be altered without the participation of the electors. As such, it represents an attempt by the draftsmen to fundamentally reorder the distribution of power between the Legislature and the citizens of this state.
It could be argued that if rules of statutory construction were applied to the context of the Constitution, the constitutionality of incorporating the specified
This interpretation, however, ignores the fact that the draftsmen of Proposition 8 created a scheme еxpressly authorizing the Legislature, acting alone, to alter the provisions of
By incorporating the provisions of
In the face of such explicit evidence of the draftsmen‘s intent, the rule enunciated in Palermo is not applicable. Statutory construction is an effective means by which courts may resolve ambiguities created by the wording or grammatical construction of statutes. Here, however, there is no ambiguity. The rules of construction will not save a measure which is clearly and unambiguously unconstitutional, one which impermissibly reallocates power from the people of this state to the Legislature.
The draftsmen of Proposition 8 created a mechanism by which the Legislature can transmute a statutory modification into a constitutional amendment.
With one wave of the wand, this act of electoral alchemy revised the Constitution by devising a means of altering that document without the citizens’ participation. Such a change, which strikes at the very essence of our form of government and the power of the people, violates
III.
CONCLUSION
The wisdom of the policies which the draftsmen of Proposition 8 sought to implement is not at issue in this case. I take no position on those policies for that is for the people to decide.
I have great respect for the will of the people. The sovereign power is theirs, and they have chosen to express that power through the Constitution which they, in their wisdom, saw fit to establish. Respect for the Constitution is the truest measure of a justice‘s respect for the people. The Constitution speaks for the people, and as long as its voice remains strong, the voice of the people will not be muffled.
I would give voice to the provisions the people have placed in their Constitution to ensure that initiative measures truly express their will. The Constitution sets forth the basic requirements for drafting a proper initiative measure. These requirements are simple and straightforward. They are there to protect the people, not from themselves but from un-
The majority opinion implies that the passage of a proposition somehow creates a conclusive presumption in favor of its constitutionality. Such a view sadly mistakes the role of this court. It is not our duty to certify the results of elections; that is the role of the Secretary of State. It is our duty to let the Constitution speak for the people so that their will may be given its fullest and truest expression.
What is essentially at issue here is the improper manner in which the draftsmen of Proposition 8 used the initiative process to achieve their goals.
The people of this state have no voice—either directly through the exercise of their franchise or indirectly through their elected representatives—in the formulation or drafting of proposals presented to them by initiative. Thus, the people have seen fit to establish specific constitutional safeguards to ensure that when initiatives are submitted to them, the outcome will be “the expression of the true will of the people.” (See Canon v. Justice Court (1964) 61 Cal.2d 446, 453, italics added.)
The people have entrusted to the courts the responsibility for preserving the integrity of the initiative process. In exercising that responsibility, this court must ensure that no initiative is enacted by means of the creation of false majorities, the presentation of deceptive or misleading proposals, or the imposition of forced electoral compromises.
Proposition 8, as drafted and presented to the voters of this state in June of 1982, violated virtually every one of these fundamental rules with its “multifarious” provisions.
The draftsmen presented the voters with a false bill of goods. They called the initiative the “Victims’ Bill of Rights” when in truth the victims of crime lost many rights. Rape victims are just one graphic example of the draftsmen‘s deceptive packaging of this initiative. In fact, the draftsmen of Proposition 8 have allowed victims of crime themselves to be placed on trial. Under Proposition 8, basic protections that previously limited the scope of cross-examination of crime victims were repealed.
By presenting the voters with an all-or-nothing choice involving a large number of disparate and complex matters, the draftsmen of this initiative violated the single-subject rule of
Moreover, by failing to inform the voters either about the changes they were making in the current law of this state or about the scope of the law they sought to impose in the future, the draftsmen violated the constitutional requirement of full disclosure found in
Finally, by depriving the people of this state of their paramount role in approving or rejecting changes in their Constitution and by impermissibly transferring power from the people to the Legislature, the draftsmen of Proposition 8 have attempted to alter the fundamental distribution of pоwer between the people and their elected representatives. They have thereby violated the prohibition against constitutional revision by initiative.
Our constitutional duty as the highest court in this state is to reassert the people‘s quintessential role in the initiative process and to reaffirm the vitality of the constitutional safeguards designed to protect the integrity of that process. Sadly, a majority of this court has today turned its back on fulfilling that difficult but essential obligation.
The late commentator Elmer Davis once remarked that “the republic was not established by cowards, and cowards will not preserve us.” His words apply equally well to the Constitution.
MOSK, J.—I dissent.
A bare majority of this court have rejected fundamentals of constitutional law that have consistently guided this state in the conduct of its affairs. In lieu of those basic principles, four justices now declare that initiative promoters may obtain signatures for any proposal, however radical in concept and effect, and if they can persuade 51 percent of
The new rule is that the fleeting whims of public opinion and prejudice are controlling over specific constitutional provisions. This seriously denigrates the Constitution as the foundation upon which our governmental structure is based.
James Madison, in the Federalist Papers (No. LXXVIII), wrote, inter alia, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body [or the people acting in a legislative capacity].”
Crime is indeed a serious problem of society. But it must be approached with determination and intelligence, not by destruction of the values that have made this the greatest nation on earth. A thoughtful political observer (Tom Wicker in the New York Times) has written: “It is a good thing that neither the Bill of Rights nor the Magna Carta is the pending business of [legislative bodies] these days.... [I]n the present mood of political panic and myopia, it would undoubtedly be voted down as a needless restraint in the war on crime.” In the same vein, Chief Justice Warren spoke about “straws in the wind” that worried him, and “which cause some thoughtful people to ask whether ratification of the Bill of Rights could be obtained today if we were faced squarely with the issue.” (Katcher, Earl Warren (1967) p. 332.)
It is not unduly dramatic to suggest that proponents of this initiative have yielded to “panic and myopia” in what they describe аs a “war on crime.” In submitting to the same fears, four justices by a stroke of their pen have obliterated a section of the California Constitution in deference to what they charitably describe as “the extremely broad sweep of this legislation.”
In sum, I adhere to the views on the one-subject rule expressed in my dissent in Brosnahan v. Eu (1982) 31 Cal.3d 1, 5-14. I conclude that Proposition 8 fails to meet the provisions of
Constitutional principles, wrote Chief Justice Warren, “are the rules of government.” (Trop v. Dulles (1957) 356 U.S. 86, 103.) And, added Justice Jackson, “the great purposes of the Constitution do not depend on the approval or convenience of those they restrain.” (Everson v. Bd. of Education (1947) 330 U.S. 1, 28.) Chief Justice Wright also said it well: “A democratic government must do more than serve the immediate needs of a majority of its constituency—it must respect the ‘enduring general values’ of the society. Somehow, a democracy must tenaciously cling to its long-term concepts of justice regardless of the vacillating feelings experienced by a majority of the electorate.” (Wright, The Role of Judiciary (1972) 60 Cal.L.Rev. 1262, 1267.)
The Goddess of Justice is wearing a black arm-band today, as she weeps for the Constitution of California.
Broussard, J., concurred.
The application of petitioners Brosnahan and Raven for a rehearing was denied October 13, 1982. Bird, C. J., and Broussard, J., were of the opinion that the application should be granted.
Notes
Section 9 consists of four sentences, each purportedly concerning “statute[s].” However, as is immediately apparent from both context and history, the word “statute” as used in the first two sentences means something quite different from the word as employed in the final sentences. The opening sentences use “statute” to signify a proposed law or bill; in the last sentences, the word refers to an already enacted law.
Divided for clarity into separate sentences, section 9 provides in full as follows:- “A statute shall embrace but one subject, which shall be expressed in its title.”
- “If a statute еmbraces a subject not expressed in its title, only the part not expressed is void.”
- “A statute may not be amended by reference to its title.”
- “A section of a statute may not be amended unless the section is re-enacted as amended.”
On the other hand, it would be meaningless to say that a legislative bill “may not be amended by reference to its title” and “may not be amended unless [a] section [of the bill] is re-enacted as amended.” These provisions manifestly were intended to apply to laws already on the books.
That this interpretation is the correct one is confirmed by the history of section 9. Prior to the 1966 amendment, its provisions were found in
Subsequently, this court held to the contrary in Prince v. City & County of S.F. (1957) 48 Cal.2d 472, 475. However, Prince failed even to mention Wallace and, in support of its conclusion, cited two prior cases which had nothing whatsoever to do with initiative measures. The United States Supreme Court granted certiorari in Prince and reversed the judgment of this court on grounds which reduced to dictum Prince‘s discussion of
Wallace and Prince have each been cited once on this point since they were handed down. (See Hays v. Wood (1979) 25 Cal.3d 772, 786, fn. 3 [citing Wallace]; Morris v. Priest (1971) 14 Cal.App.3d 621, 624 [citing Prince].)
It is not necessary in the present case to resolve the conflict between Wallace and Prince. As previously noted, the requirement of reenactment of amended “statutes” imposes restrictions on amending laws already enacted. (Ante, fn. 13.) Both Wallace and Prince dealt with the provisions of