CALIFORNIANS FOR AN OPEN PRIMARY еt al., Petitioners, v. BRUCE MCPHERSON, as Secretary of State, etc., Respondent; CALIFORNIA LEGISLATURE, Real Party in Interest.
No. S126780
Supreme Court of California
May 25, 2006
38 Cal. 4th 735
Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser and Aimee E. Dudovitz for Petitioners.
Bill Lockyer, Attorney General, Louis R. Mauro, Assistant Attorney General, Catherine M. Van Aken and Geoffrey L. Graybill, Deputy Attorneys General, for Respondent.
Diane F. Boyer-Vine, Jeffrey A. DeLand, Marian M. Johnston, Dulcinea A. Grantham; Remcho, Johansen & Purcell, Kathleen J. Purcell, Robin B. Johansen, Thomas A. Willis, Margaret R. Prinzing and Karen Getman for Real Party in Interest.
GEORGE, C. J.—We granted review to address an issue of first impression: the proper interpretation of
We conclude, as did the Court of Appeal below, and consistent with our provision‘s language and history and more than a century of out-of-state decisions construing the essentially identical provisions of nearly 30 other state constitutions, that the separate-vote provision is a limitation upon legislative power to submit constitutional amendments to the voters.
We disagree, however, with the Court of Appeal below, concerning the applicable test for determining whether, in a given case, the Legislature‘s submission of constitutional changes in a single measure violates article XVIII, section 1. In addressing that question, the Court of Appeal followed a minority rule that recently was reinvigorated by Armatta v. Kitzhaber (1998) 327 Ore. 250 [959 P.2d 49] (Armatta)—a decision in which the Oregon Supreme Court construed its state‘s separate-vote provision as establishing a test different from and stricter than the traditional test employed by courts under a related constitutional provision also found in most state constitutions—the “single subject rule” (see
So construing the separate-vote provision of article XVIII, section 1, we conclude that the Legislature‘s proposed submission, in a single constitutional amendment, of two changes to the state Constitution that are not germane to a common theme, purpose, or subject, violated the constitutional separate-vote requirement. Accordingly, we affirm this aspect of the judgment rendered by the Court of Appeal, although for reasons different from those relied upon by that court.
We also address the question of remedy. The Court of Appeal, by a two-to-one vote, ordered the Secretary of State to separate the two proposed constitutional changes at issue in this matter into two measures for submission to the voters. When ruling upon this matter in the weeks preceding the November 2004 general election (and only days before the deadline for the
I
Proposition 62, an initiative that qualified for the November 2, 2004, statewide General Election ballot, proposed a constitutional amendment to permit so-called open primaries.1 In an apparent response to that measure, both houses of the Legislature passed by a two-thirds vote Senate Constitutional Amendment No. 18 of the 2003–2004 Regular Session (Sen. Const. Amend. No. 18,
The first change concerned primary elections and evidently was designed to conflict with and supersede the competing initiative measure, Proposition 62. This part of Resolution 103 proposed to amend article II of the California Constitution by adding section 5, subdivision (b), which provided that a political party‘s top vote getter in a primary election must be permitted to run in the ensuing general election.2 The second change set forth in Resolution 103 concerned state property and proposed to amend article III of the California Constitution by adding a new section 9 to provide a means for the state to pay bond obligations.3
After Resolution 103 was designated Proposition 60 by the Secretary of State, petitioners Californians for an Open Primary and Nick Tobey (Californians for an Open Primary)—proponents of Proposition 62—filed a petition for a writ of prohibition in the Court of Appeal, seeking to bar the Secretary of State from placing Proposition 60 on the general election ballot on the ground that its submission as a single ballot proposition would violate the separate-vote provision of article XVIII, section 1. The Legislature of the State of California filed opposition. The Court of Appeal agreed with Californians for an Open Primary that Resolution 103, submitted in a single measure as Proposition 60, violated the Constitution‘s separate-vote provision. In reaching that conclusion, the appellate court relied upon the Oregon Supreme Court‘s construction of that state‘s own separate-vote provision and unanimously endorsed a strict test focusing upon ” ‘whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and are not closely related.’ ” (Quoting Armatta, supra, 959 P.2d 49, 64, italics added.) The Court of Appeal also unanimously found that the proposed submission violated this test but, by a two-to-one vote, rejected the assertion that Proposition 60 should be stricken from the ballot, instead issuing a peremptory writ of mandate directing the Secretary of State to prepare the ballot “so that section 5 of article II and section 9 of article III, as proposed in [Resolution 103], will be submitted to the voters as separate measures to be voted on separately.”
Both Californians for an Open Primary and the Legislature petitioned this court for review. The petition of Californians for an Open Primary took issue with substantial aspects of the Court of Appeal‘s analysis, but agreed with the lower court‘s conclusion that submission of Proposition 60 as a single measure would violate the separate-vote provision. Petitioners urged, however, that the Court of Appeal majority erred in deciding, as a remedy for the separate-vote violation, that the measure should be bifurcated and presented on the ballot as two separate measures; the proper remedy, petitioners asserted, instead was an order barring the measure from appearing on the ballot, and hence petitioners requested a stay of the Court of Appeal‘s bifurcation order. The Legislature‘s petition for review, by contrast, disagreed with both (1) the Court of Appeal‘s separate-vote-provision analysis and conclusion, and (2) the Court of Appeal majority‘s bifurcation remedy, and further argued that the request for a stay should be denied “and review of the
We unanimously granted review to address the merits of both substantive issues presented—that is, the proper interpretation of article XVIII, section 1, and the Court of Appeal‘s bifurcation remedy. In light of the impending election and ballot preparation deadlines, we also ordered the Secretary of State to place Resolution 103 on the November 2004 ballot “in the manner directed by the Court of Appeal“—that is, as Propositions 60 (the primary election provision) and 60A (the state property/bonds repayment provision), and we denied the request for a stay.4
As noted above, although Californians for an Open Primary agrees with the Court of Appeal‘s conclusion that the separate-vote provision of article XVIII precluded the Legislature from joining the disparate provisions of Resolution 103 in a single proposed constitutional amendment, it maintains that the Court of Appeal erred in bifurcating the resolution into two separate proposed constitutional amendments and directing that the measure be placed on the ballot as two separate propositions. In the briefing filed in this court after the November 2004 election, Californians for an Open Primary argues that the Court of Appeal‘s error in this regard requires invalidation of both constitutional amendments despite the voters’ approval of each measure at the November 2004 election. Because Californians for an Open Primary maintains that the appropriate remedy in this case is invalidation of the two measures enacted by the voters, the remedy issue that is presented remains alive and is not moot.
II
Article XVIII, addressing the subject of amending and revising the Constitution, is comprised of four sections. The first section—thе second sentence of which we must construe in this case—provides: “The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.” (
A
On its face, the separate-vote provision appears to limit legislative power. The Legislature, however, insists that this provision in fact has a different and quite opposite purpose and effect. It argues that instead of limiting legislative authority to package disparate proposed changes in a single measure, the separate-vote provision actually guarantees that however the Legislature deems it appropriate to combine or separate proposed changes, those changes will be submitted to the voters in the chosen manner. Specifically, the Legislature asserts that the word “amendment” in the second sentence of article XVIII, section 1 “has always been” construed to “mean[] a Senate Constitutional Amendment . . . or an Assembly Constitutional Amendment, with the resulting assurance that when more than one [Senate Constitutional Amendment] or [Assembly Constitutional Amendment] appears on the same ballot each such legislative constitutional amendment will be prepared and submitted so that it ‘can be voted on separately.’ ” The Legislature concludes: “Pursuant to this . . . view of [article XVIII,] section 1, the Legislature, by two-thirds vote of each house, is free to combine disparate substantive changes within a single legislative constitutional amendment for submission to the people. . . . The ‘separate vote’ requirement guarantees that neither the Executive [that is, the Secretary of State] nor succeeding legislative majorities may interfere with these determinations.” (Italics added.) In other words, as Californians for an Open Primary observes, the Legislature views the separate-vote provision as not a limitation upon itself, but instead as a restraint upon hypothetical “renegade Secretaries of State” who might take it upon themselves either to combine separate measures that the Legislature has determined should be submitted to the voters separately, or to separate measures that the Legislature has determined should be submitted to the voters as a package.
As explained below, we do not find support for the Legislature‘s view in the language of the second sentence of article XVIII, section 1, or in the provision‘s history or the case law construing that provision or similar provisions in the charters of our sister states. Nor, contrary to the Legislature‘s position, do we find support for its construction of the provision in past legislative constitutional amendment measures adopted by the electorate, or in the circumstance that, since 1962, the Legislature has had authority to propose not only amendments to the Constitution, but revisions as well.
We first review the text of the provision. Its first sentence, addressing the power to propose a constitutional amendment or revision, is direсted expressly to “the Legislature.” The second sentence, which we must construe in the present case (providing that “[e]ach amendment shall be so prepared and submitted that it can be voted on separately“) also appears to be directed to the Legislature. There is no indication in the language of the provision that the second sentence was directed toward an unidentified entity within the executive branch, such as the Secretary of State.
The Legislature insists nevertheless that the word “amendment” in the second sentence of article XVIII, section 1 (the separate-vote provision) means or refers to the legislative vehicle employed by the Legislature, that is, a resolution proposing a Senate Constitutional Amendment or an Assembly Constitutional Amendment. We note, however, that the same word (“amendment“) also appears in the first sentence of section 1 of article XVIII. In that context it is clear the word refers not to the legislative vehicle for proposing a change, but instead to the substantive content of such a proposal. Although it is possible that the word “amendment” might be employed in a different sense in the second sentence of article XVIII, section 1, as explained below there is no evidence that the drafters or the electorate in 1879 or thereafter ever so intended, or that they even contemplated the construction that the Legislature now places upon the provision.7
2
Mindful of the admonitions set forth by Justice Landau in his article, A Judge‘s Perspective on the Use and Misuse of History in State Constitutional Interpretation (2004) 38 Val.U. L.Rev. 451 (Landau),8 we next review the
history of California‘s separate-vote provision. Former article X of the 1849 Constitution set forth the procedures for the Legislature to propose one or more amendments to the Constitution (
By the time of California‘s second (and only other) Constitutional Convention, in 1878-1879, this deferential approach to legislative submission of proposed constitutional amendments had been rejected in most jurisdictions, in favor of a provision apparently first adopted by New Jersey in 1844. The New Jersey constitutional clause provided that, with regard to a proposed amendment or amendments, the legislature had a ” ‘duty . . . to submit such proposed amendment or amendments . . . to the people, in such manner and at such time, . . . as the legislature shall prescribe’ “—but that state‘s provision also regulated the legislature‘s authority to prescribe the manner of submission, by further stating: ” ‘provided, that if more than one amendment be submitted, they shall be submitted in such manner and form that the people may vote for or against each amendment separately and distinctly.’ ” (Thorpe, The Federal and State Constitutions (1909) 2613 (Thorpe), quoting N.J. Const. of 1844, art. IX, italics in Thorpe deleted, new italics added; see also Cambria v. Soaries (2001) 169 N.J. 1 [776 A.2d 754, 761-762] (Cambria) [construing the New Jersey provision as imposing a limitation upon the state legislature].) By the late 1870‘s, at least two other states had essentially identical constitutional provisions (see Thorpe, supra, at pp. 1153 [Iowa Const. of 1857, art. X, §§ 1 & 2], 4093–4094 [Wis. Const. of 1848,
California‘s drafters in 1878 to 1879 followed this trend. Three delegates offered three different proposals for a procedure to amend the Constitution, each of which rejected the deferential approach of the 1849 Constitution under which the Legislature was granted unregulated power to “prescribe” the “manner” of submission to the electorate. (
The committee‘s proposal thereafter came up for debate before the assembled delegates in early February 1879. (3 Willis & Stockton, supra, at p. 1276.) Insofar as section 1 was concerned, the delegates debated and ultimately voted to retain the rule requiring a two-thirds vote of both houses, and they debated and ultimately revised the provision‘s publication requirement (3 Willis & Stockton, supra, at pp. 1276-1277), but there was no debate or discussion concerning the separate-vote provision. (Ibid.) When the matter again came up for vote approximately two weeks later, the delegates adopted the language quoted above and referred it to the Committee on Revision and Adjustment. (Id., at pp. 1445-1446.) Approximately 10 days later, that committee proposed to designate the provision article XVIII, sections 1 and 2, and to make various technical amendments to both sections, inсluding one to section 1‘s separate-vote provision itself. That amendment proposed to substitute the word “each” for “they” in the final clause, so that the provision would read as follows: “and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more than one amendment be submitted at the same election, they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately.” (3 Willis & Stockton, supra, at p. 1505.)
In light of the history recounted above—that is, the apparently unchallenged view among the delegates that the 1849 Constitution‘s corresponding provision allowing the Legislature unfettered discretion to prescribe the “manner” of submission should be rejected in favor of an approach limiting that
3
We next review our case law‘s interpretation of the separate-vote provision of article XVIII, section 1. This court has addressed the provision only once, in Wright v. Jordan (1923) 192 Cal. 704 [221 P. 915] (Wright). As explained below, in doing so we repeatedly characterized the provision as imposing a “limitation” upon the Legislature, and not, as the Legislature now argues, a protection of a legislative prerogative and/or a limitation upon the Secretary of State.
The petitioner in Wright (the City Clerk of San Diego) sued the Secretary of State (Frank C. Jordan) to compel him to recognize and file the results of an election concerning the consolidation of the City of San Diego and the City of East San Diego. (Wright, supra, 192 Cal. 704, 706.) Secretary of State Jordan refused to take this action on the ground that the statute under which the consolidation election had proceeded was unconstitutional because, he asserted, it in turn was based upon an improperly adopted amendment to article XI, former section 8 1/2, subdivision 7 of the Constitution. That constitutional amendment (governing consolidation elections) earlier had been adopted by the electorate as a constitutional initiative under the power conferred upon the voters by constitutional amendment in 1911. The Secretary of State argued in Wright that the prior amendment to article XI, former section 8 1/2, subdivision 7, was void because it had not been adopted “in the manner required by the provisions of section 1 of article XVIII” (Wright, supra,
We conclude, contrary to the Legislature‘s suggestion, that Wright, supra, 192 Cal. 704, far from supporting the Legislature‘s interpretation of the separate-vote provision, does the opposite and supports the view that the provision imposes a limitation upon the Legislature.
4
Finally, we consider the decisions of our sister states construing their own essentially identical separate-vote provisions. Those opinions unanimously interpret their provisions as imposing a limitation upon the legislature‘s power to submit constitutional changes to the voters. Each decision has found, explicitly or implicitly, that the provision is designed to limit legislative power by barring submissions that otherwise might cause voter confusion or constitute “logrolling“—that is, the practice of combining two or more unrelated provisions in one measure, thereby forcing a single take-it-or-leave-it vote on matters that properly should be voted upon separately. (E.g., Gabbert v. Chicago, R. I. & P. Ry. Co. (1902) 171 Mo. 84 [70 S.W. 891, 897] (Gabbert); Jones v. McClaughry (1915) 169 Iowa 281 [151 N.W. 210, 216]; State v. Wetz (1918) 40 N.D. 299 [168 N.W. 835, 847] (Wetz); Kerby v. Luhrs
The Legislature insists, nevertheless, that its view—that the separate-vote provision protects the Legislature‘s right to package constitutional amendment measures as it sees fit—is supported by (i) contemporaneous and ongoing practices, and (ii) the circumstance that, since 1962, the Legislature has had authority to propose not only constitutional amendments, but also constitutional revisions. As explained below, we are not persuaded.
a
The Legislature cites approximately 30 constitutional amendment measures that it submitted to the electorate between 1892 and 2004, and argues that many if not most of those measures would have failed the strict test proposed below by the Court of Appeal. This circumstance, according to the Legislature, demonstrates the propriety of its own interpretation of the separate-vote provision.
We agree generally that long-established and adhered-to practice with regard to a constitutional provision informs a court‘s interpretation of such a provision. (E.g., People v. Southern Pac. Co. (1930) 209 Cal. 578, 595 [290 P. 25] [” ‘contemporaneous and long continued construction’ ” of a constitutional provision ” ‘by the legislature is entitled to great deference’ “].) Indeed, early out-of-state cases so proceeded in arriving at a lenient and accommodating—rather than a narrow and strict—construction of their own separate-vote provisions. (E.g., State v. Timme (1882) 54 Wis. 318 [11 N.W. 785, 791–793] (Timme).) On the facts of the present case, however, we find the Legislature‘s argument unpersuasive.
The Legislature cites nothing to suggest that, at any time prior to the commencement of this litigation, the Legislature—by rule, legal opinion, or otherwise—actually held the presently stated view of the constitutional provision. Moreover, as the Court of Appeal below observed, “we do not know that any of [the Legislature‘s] examples [of prior constitutional amendment measures] violate section 1 for no cases have been brought to test them.” In any event, even assuming that, as the Legislature suggests, some of the prior legislative constitutional amendment measures that were adopted by the electorate might have failed the strict separate-vote test endorsed by the Court of Appeal below, as we shall explain post, part II.B.3, we do not endorse that strict test or anything like it. The Legislature does not argue that any prior measure cited would fail under scrutiny of the separate-vote provision as we shall construe it in this case.
In conclusion on this point—and contrary to the Legislature‘s argument based upon past practices—we find it highly improbable that, despite every
b
The Legislature argues that, even if, for the first eight decades of its existence, the separate-vote provision in California (like the essentially identical provision in numerous other jurisdictions) operated as a limitation upon the Legislature, that restraint effectively and silently was abrogated when, in 1962, the electorate amended the first sentence of article XVIII, section 1—or at least when, in 1970, the electorate adopted the present version of article XVIII, section 1. In order to address the Legislature‘s contention, we must in some detail review the history upon which it relies.
Like many other states in the late 1950‘s and early 1960‘s, the California Legislature in 1956 authorized and thereafter appointed a Citizens Legislative Advisory Commission to make recommendations for legislative improvement and reform. (See, e.g., Advisory Com., Final Rep. to Cal. Leg. and Citizens of Cal. (Mar. 1962), p. 9.) One of the major recommendations of the Advisory Commission was that the Constitution should be changed to allow for the Legislature to propose not only amendments or the calling of a constitutional convention to revise the charter, but also to permit the Legislature to propose a wholesale or partial constitutional revision without the need to call a constitutional convention. (Id., at pp. 42-44.)16 The Legislature agreed with this recommendation and in resolution chapter 222 (Assem. Const. Amend. No. 14,
matter did not suggest that the proposed amendment in any manner would change the meaning or effect of the unaltered second sentence of the section—the sentence at issue in this case, which is directed exclusively to the question of legislative proposals for amendment to the Constitution and which contains the separate-vote provision.18
Thereafter, in 1963, the Legislature appointed a Constitution Revision Commission (Revision Commission), which undertook to analyze and propose to the Legislature revisions to the entire state Constitution. (See generally Sumner, Constitution Revision by Commission in California (1972) 1 Western St.U. L.Rev. 48.) Based upon the Revision Commission‘s recommendations, the Legislature in 1966 invoked its new power to propose revision of the Constitution and submitted for the electorate‘s approval resolution chapter 139 (Assem. Const. Amend. No. 13,
Consistent with the Legislature‘s characterization of Resolution 139 as a proposed revision of the Constitution, the Attorney General‘s ballot title for the measure commenced as follows: “Constitutional Revision. Legislative Constitutional amendment. . . .” (Ballot Pamp., Gen. Elec. (Nov. 8, 1966) analysis of Prop. 1-a, p. 1.) The Secretary of State designated this omnibus measure as Proposition 1-a (ibid.), and the electorate adopted it at the November 1966 general election.
After successfully promoting this major revision, the Revision Commission proceeded with the second phase of its work, considering changes to numerous additional articles of the Constitution, including the one at issue in the present litigation—article XVIII, as it recently had been amended in 1962. In
At some point after release of the Revision Commission‘s February 15, 1968 recommendations, the Legislature rejected the Revision Commission‘s recommendation to delete the separate-vote provision from the second sentence of article XVIII, section 1. Why the Legislature did so is not reflected in any document of which we are aware. As explained below, however, the Legislature‘s current position appears to be this: Either in the early 1960‘s, or during or after early 1968, the Legislature decided (against the Revision Commission‘s 1968 recommendation) to retain the separate-vote provision based upon a theory that the provision‘s language usefully could be construed—in the manner presently undertaken by the Legislature—as effectuating not a limitation upon its authority to submit amendments, but instead a protection of its asserted prerogative to package disparate proposed changes in a single measure as it wishes, without any restraint or interference by the Secretary of State. In addition, the Legislature appears to suggest that the electorate, by subsequently reenacting the separate-vote provision in November 1970 to read as it does today, confirmed the Legislature‘s latter (yet previously unstated) interpretation of the provision.
In other words, the Legislature suggests, even if prior to the 1962 amendment the separate-vote provision was solely a limitation upon the
As the Legislature observes, in 1968 the Legislature, following its earlier successful support of constitutional revision via 1966‘s Proposition 1-a, proposed resolution chapter 184 (Assem. Const. Amend. No. 30, Stats. 1968 (1968 Reg. Sess.) res. ch. 184, pp. 3301–3316) (hereafter Resolution 184)—a phase two omnibus revision measure designed to make numerous additional changes to 13 disparate articles of the Constitution, including the article and provision here at issue,
Prior to setting forth the various proposed changes, Resolution 184—like the earlier Resolution 139 from 1966—provided that “the Constitution of the state be revised as follows: . . .” (Assem. Const. Amend. No. 30, Stats. 1968 (1968 Reg. Sess.) res. ch. 184, p. 3302, italics added.) Thereafter Resolution 184 set forth the Legislature‘s proposed revision of 13 disparate articles (II, IV, IX, X, XI, XII, XIII, XIV, XVII, XVIII, XX, XXII, and XXIV) of the stаte Constitution.
As had occurred under similar circumstances in 1966, and consistent with the Legislature‘s characterization of Resolution 184 as a proposed revision of the Constitution, the Attorney General‘s ballot title for the measure commenced as follows: “Constitutional Revision. Legislative Constitutional amendment. . . .” (Ballot Pamp., Gen. Elec. (Nov. 5, 1968) analysis of Prop. 1, p. 1.) The Secretary of State designated this omnibus measure Proposition 1. (Ibid.)
Among the numerous changes to various articles contained within that extensive measure was a proposal that the first sentence of article XVIII be amended in various ways, including (1) allowing the Legislature, in proposing either an amendment or a revision of the Constitution, to “amend or withdraw” its proposal, and (2) providing that all future amendments to or revisions of the Constitution be effective on the day after adoption by the voters. But, as noted above, contrary to the recommendation of the Revision Commission, the Legislature‘s proposed amendment retained, without substantive change, the separate-vote provision found in the second sentence of section 1. (Ballot Pamp., Gen. Elec. (Nov. 5, 1968) text of Prop. 1, p. 24 [setting forth the proposed language].) Proposition 1 also proposed related
After that defeat, the Legislature divided and repackaged those same proposed revisions into four different measures for submission to the voters on the June 1970 special election ballot. In each of the four resulting resolution chapters—resolution chapter 331 (Assem. Const. Amend. No. 29, Stats. 1969 (1969 Reg. Sess.) res. ch. 331, pp. 4003-4008 [repackaging proposed changes to articles II, XI, XIII, and XXII]), resolution chapter 264 (Assem. Const. Amend. No. 31, Stats. 1969 (1969 Reg. Sess.) res. ch. 264, pp. 3934-3937 [repackaging proposed changes to articles XII, XIII, XIV, and XX]), resolution chapter 263 (Assem. Const. Amend. No. 30, Stats. 1969 (1969 Reg. Sess.) res. ch. 263, pp. 3933–3934 [repackaging proposed changes to articles X, XVII, and XX]), and finally, resolution chapter 340 (Assem. Const. Amend. No. 28, Stats. 1969 (1969 Reg. Sess.) res. ch. 340, pp. 4016-4019 (hereafter referred to as Resolution 340) [repackaging proposed changes to articles IV, XVIII, and XXIV]), the Legislature—as it had done earlier with respect to Resolution 139 in 1966 and Resolution 184 in 1968—characterized the measure as proposing a revision (or partial revision) of the Constitution. (See Stats. 1969 (1969 Reg. Sess.) res. chs. 263, 340, pp. 3933, 3934, 4004 & 4016.)
Through Resolution 340, the Legislature again (as it had in 1968) proposed to amend
The Legislature‘s four repackaged resolutions became Propositions 2, 3, 4, and 5 on the June 1970 special election ballot. The Attorney General, consistent with the Legislature‘s designation of each as a revision or partial revision, prepared a title that prominently so labeled each matter. For example, with respect to Resolution 340, which became Proposition 5, the Attorney General‘s title in the ballot pamphlet read: “Partial Constitutional Revision: Legislative Constitutional Amendment.” (Ballot Pamp., Special Elec. (consolidated with Primary) (June 2, 1970) analysis of Prop. 5, p. 13.) Proposition 2 received a majority vote by the electorate, but Propositions 3, 4, and 5 were rejected.
Undaunted by this second setback, the Legislature, which was then in the process of preparing to submit to the voters in November 1970 numerous additional phase three proposals from the Revision Commission (see generally Rev. Com., Proposed Revision 3 (Jan. 1970-Apr. 1971) pts. 1-6), responded by repackaging the failed Proposition 5 provisions and resubmitting them yet again. This time, however, the Legislature, perhaps wary of the electorate‘s apparent reluctance to adopt multisubject revisions titled as such, further divided the previously rejected provisions (and most other phase three proposals as well) into separate measures that addressed discrete subjects (or as to which multiple amendments at least were germane to a common theme, purpose, or subject). The Legislature passed resolutions regarding these measures proposing “that the Constitution of the state be amended to read as follows: . . .” (italics added)—or essentially identical language to that effect. For example, failed Proposition 5 from the June 1970 ballot was further divided into two measures. In resolution chapter 147 (Assem. Const. Amend. No. 36, Stats. 1970 (1970 Reg. Sess.) res. ch. 147, pp. 3705-3707) (hereafter Resolution 147), the Legislature resolved to amend article XXIV‘s civil service provisions—and that measure eventually was submitted to the voters as Proposition 14. Most relevant here, in resolution chapter 187 (Assem. Const. Amend. No. 67, Stats. 1970 (1970 Reg. Sess.) res. ch. 187, pp. 3780-3781) (hereafter Resolution 187), the Legislature resolved to amend both (1) article XVIII by, among other things, permitting the Legislature to “amend or withdraw” any proposed amendment or revision, establishing that such measures become effective on the day after adoption, and making no substantive change to the separate-vote provision, and (2) former article IV, section 24, subdivision (a) of the Constitution (present
Consistent with the Legislature‘s various resolutions, the ensuing titles prepared by the Attorney General for thesе ballot propositions tracked the Legislature‘s characterizations. For example, with regard to Resolution 147 (the civil service measure), which became Proposition 14, the Attorney General‘s title in the ballot pamphlet read: “State Civil Service. Legislative Constitutional Amendment. . . .” (Ballot Pamp., Gen. Elec. (Nov. 3, 1970) analysis of Prop. 14, p. 23.) And, with regard to Resolution 187 (the measure here at issue), which became Proposition 16, the Attorney General‘s title appearing in the ballot pamphlet read: “Constitutional Amendments. Legislative Constitutional Amendment. . . .” (Ballot Pamp., at p. 27.)23
Under the boldfaced subheading, Detailed Analysis by the Legislative Counsel, the voters were informed that Proposition 16 would, in addition to making some substantive changes, “restate” existing provisions of the two articles—“some with and some without substantive change.” (Ballot Pamp., Gen. Elec. (Nov. 3, 1970) analysis of Prop. 16, p. 27.) The voters next were provided with a description of the “major changes” (ibid.) that would be accomplished by Proposition 16‘s proposed amendments to article XVIII24 and to former article IV, section 24, subdivision (a) of the Constitution
As noted earlier, upon the voters’ adoption of Proposition 16 at the November 1970 general election,
In light of (and in some respects in spite of) the foregoing history, the Legislature asserts that the 1962 amendment to the first sentence of article XVIII, section 1, “[d]ispels any notion that [the second sentence of] section 1
The history recounted above does not support the Legislature‘s position. The Legislature apparently fails to recognize the significance of the circumstance that the amendment made to article XVIII in 1962 was addressed exclusively to the first sentence of that article‘s section 1, and that the amendment left untouched the second sentence of that section, which contains the separate-vote provision. In other words, although the 1962 amendment granted the Legislature the authority to propose either revisions or amendments (and, as the article subsequently was amended in 1970, also to amend or withdraw such proposals), it did not alter the rule that applies whenever the Legislature proceeds other than by way of a revision and instead proposes an amendment.26
The history described above demonstrates that the Legislature, after the 1962 amendment expanding its authority to propose constitutional changes amounting to revisions, decided—over the contrary recommendation of the Revision Commission—to retain the separate-vote provision. There is no evidence that the Legislature at that time or thereafter considered the separate-vote provision to have metamorphosed from what the Revision Commission in 1967 aptly characterized as a “restriction” and “limitation” upon the Legislature‘s authority to package disparate amendments in a single measure, into the opposite—protection for an asserted legislative prerogative to package disparate proposed changes in a single measure as it wishes. And, most importantly,
In an effort to demonstrate that viewing the second sentence of
We disagree. Propositions 2, 3, 4, and 5 on the Junе 1970 ballot—each of which, at the recommendation of the Revision Commission, combined in a single measure numerous substantively disparate amendments to multiple unrelated articles—possibly might have “breached” the separate-vote provision had each proposition been submitted to the voters as a single packaged “amendment,” but they were not so presented. As noted above, each measure instead was proposed by the Legislature (upon recommendation of the Revision Commission) as a revision or partial revision, and each was so titled by the Attorney General. By its terms, the second sentence of
For different reasons we reach the same conclusion with respect to Proposition 16 on the November 1970 ballot, which resulted in the present version of
In conclusion on this point, we find no support in the language or history of the separate-vote provision, or in any of numerous decisions of our sister states construing their own essentially identical provisions, that would lead us to adopt the Legislature‘s construction of
We next consider the nature and scope of that limitation, and the test to be applied in discerning whether a violation of the separate-vote provision has oсcurred.
Although we reject the Legislature‘s interpretation of
Instead, we shall adopt the approach that is, and has been, the majority rule in our sister state jurisdictions for approximately 125 years: the separate-vote provision should be construed consistently with its kindred provision, the single subject rule. We already have rejected, in part II.1, the Legislature‘s argument that the word “amendment” in
1
The California Constitution, like that of most states, long has contained not only the separate-vote provision at issue in this case, but also a related “single subject” provision. Indeed, California has two single subject provisions: one, which has existed in the California Constitution since 1849, requires that
Although we have not previously construed our own separate-vote provision (except in the dictum of Wright, supra, 192 Cal. 704, 712-713, discussed ante, fn. 13), we long have construed our two single subject provisions in an accommodating and lenient manner so as not to unduly restrict the Legislature‘s or the people‘s right to package provisions in a single bill or initiative. (E.g., Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 39 [157 Cal.Rptr. 855, 599 P.2d 46] (Fair Political Practices Commission); Perry v. Jordan (1949) 34 Cal.2d 87, 92-93 [207 P.2d 47], and cases cited [construing identically the stаtutory and initiative versions of the constitutional single subject provisions].) We have found the single subject rules to have been satisfied so long as challenged provisions meet the test of being reasonably germane to a common theme, purpose, or subject. (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157 [90 Cal.Rptr.2d 810, 988 P.2d 1089] (Jones); Legislature v. Eu (1991) 54 Cal.3d 492, 512 [286 Cal.Rptr. 283, 816 P.2d 1309] (Eu); Brosnahan v. Brown (1982) 32 Cal.3d 236, 243-253 [186 Cal.Rptr. 30, 651 P.2d 274] (Brosnahan); Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1099 [240 Cal.Rptr. 569, 742 P.2d 1290]; Perry, supra, 34 Cal.2d at pp. 92-93.)29
Numerous out-of-state decisions long have observed that single subject provisions (sometimes called a single object provision) and separate-vote provisions share the same purpose of preventing voter confusion and “logrolling“—that is, the practice of combining in one measure two or more unrelated provisions, thereby forcing a single vote on matters that properly should be voted upon separately. For example, a leading early decision of the Missouri Supreme Court, Gabbert, supra, 70 S.W. 891, explained: “The convention which required each amendment to be separately submitted also ordained that no act of the legislature should contain more than one subject, and that subject should be clearly expressed in the title. The same common purpose actuated the convention in placing these two provisions in the Constitution. ‘It was intended to kill log-rolling, and prevent unscrupulous, designing men, and interested parties, from comprising subjects diverse and antagonistic in their nature, in order to combine in its support members who were in favor of a particular measure.‘” (Id., at p. 897, some italics added.)31 Similarly, Gabbert and numerous other decisions also have recognized, explicitly or implicitly, that those two rules, despite their different
The early separate-vote provision decisions, many of which still are leading authorities today, adopted a lenient test focusing upon the germane-ness of proposed changes relating to a common subject—and those decisions rejected tests that required a strict or close relationship between changes. For example, in the first 19th-century decision to address the issue, the Wisconsin Supreme Court in Timme, supra, 11 N.W. 785, held that an amendment changing sessions of the state legislature from annual to biennial and altering the terms of office and times of election was properly submitted in a single ballot measure in order to “accomplish a single purpose.” (Id., at p. 791.) The court rejected a rule that “every proposition in the shape of an amendment to the constitution, which standing alone changes or abolishes any of its present provisions, or adds any new provision thereto, shall be so drawn that it can be submitted separately, and must be so submitted.” (Id., at p. 790.) In an oft-quoted passage, the court in Timme noted the need to avoid a construction of the provision that would be so strict as to make it “practically impossible” оr highly impracticable to amend the state constitution. (Ibid.)33 After other
Cases from other jurisdictions continued to follow that same course,35 leading another commentator to observe in the mid-1930‘s that decisions construing the separate-vote provisions of the various state constitutions focus upon “whether particular amendments embrace more than one subject or whether the entire amendment is germane to a single general subject, and the rule has been laid down that a constitutional amendment embracing several subjects, all of which are germane to the general subject of the amendment, will, under [a separate-vote] requirement, be upheld as valid, and may be submitted to the people as a general proposition.” (Annot., Proposed Constitutional Amendment (1934) 94 A.L.R. 1510, 1511.)
This lenient construction of separate-vote provisions continued in the mid-through late 20th century. Surveying the state of the law in the late 1940‘s, the Louisiana Supreme Court commented that “the courts [of various states] have accepted” the proposition that the separate-vote rule is honored so long as the ” ‘several subjects’ ” of a constitutional amendment are ” ‘germane to
2
As this lenient majority rule developed, a few decisions adopted a stricter test requiring an exacting inquiry into the relatedness of the various parts of a single measure. The earliest such case, Mississippi‘s decision in Powell, supra, 27 So. 927, concerned a single measure that provided, among other things, for the popular election of judges of both the state supreme court and of the trial courts. The court in Powell adopted a very strict functional relationship
Soon thereafter the strict approach set forth in Powell was criticized as “too narrow” in the treatise mentioned earlier (Dodd, supra, at p. 181). A few years later the Mississippi high court reconsidered its position and overruled Powell in State ex rel. Collins v. Jones, supra, 64 So. 241—embracing instead the deferential and lenient approach articulated in the “general trend” of decisions (id., at p. 252), including those set forth in the cases described ante, part II.B.1.38
Despite Mississippi‘s abandonment of an exacting functional relationship test in favor of the majority rule‘s lenient test, a smattering of opinions issued in Idaho in 1909, Arizona in 1934, Utah in 1962, and Kаnsas in 1971—all finding violations of the separate-vote provision—continued to endorse a strict functional relationship test. (McBee, supra, 100 P. 97, 103-105; Kerby, supra, 36 P.2d 549, 554-555; Lee, supra, 367 P.2d 861, 864; Moore, supra, 486 P.2d 506, 520-521.) These cases remained an essentially dormant minority position until the Supreme Court of Oregon—without citing any of them or acknowledging the majority rule cases discussed above—revived this strict interpretation of the separate-vote provision in 1998.
In Armatta, supra, 959 P.2d 49, the Oregon high court considered a challenge under its constitution‘s separate-vote provision39 to an extensive “crime victims’ rights” initiative constitutional amendment that had been adopted by the voters. After first finding that the Oregon separate-vote provision applies not only to constitutional amendments submitted by the state legislature, but also to such amendments submitted through the initiative
Applying its test, the court in Armatta found the various provisions of the challenged measure (for example, those altering existing constitutional provisions concerning (1) searches and seizures, (2) unanimous verdicts in murder cases, (3) the right to bail, and (4) qualification of jurors in criminal cases) “not related closely enough” (Armatta, supra, 959 P.2d 49, 67, italics added). The court concluded that the measure violated the separate-vote provision and was invalid in its entirety. (Id., at p. 68.)
Based upon subsequent decisions applying Armatta‘s rule, it is clear that the Oregon Supreme Court‘s inquiry concerning whether challenged provisions are sufficiently closely related is indeed a demanding one. For example, in Lehman, supra, 37 P.3d 989, that same court in 2002 found that a 1992 initiative amendment imposing term limits violated the state‘s separate-vote provision, because the measure presented questions to the voters in a single proposition concerning term limits for (1) federal elective office and (2) for state elective office. The court found the two provisions, although related, were not ” ‘closely’ related” to each other, and hence invalidated the state‘s decade-old term limits provision for state offices. (Id., at p. 999.) Similarly, in Swett, supra, 43 P.3d 1094, the Oregon high court in 2002 invalidated under the separate-vote requirement a 1998 election reform initiative measure, presented to the voters in a single proposition, that contained provisions (1) requiring disclosure of certain political contributions of $500 or more, and (2) requiring that initiative signature-gatherers be registered Oregon voters. Finding no “close relation” between these two changes, the court declared the
The Court of Appeal below concluded that “the formulation set forth in Armatta . . . comports with the constitutional text, framework, historical development, and purpose of the separate vote requirement in [article XVIII,] section 1.” Although in its briefing before this court petitioner Californians for an Open Primary supported and defended the Court of Appeal‘s adoption of the test set forth in Armatta, supra, 959 P.2d 49, at oral argument counsel for petitioners retreated and professed being “agnostic” regarding the proper
The court in Armatta, supra, 959 P.2d 49, asserted that because the Oregon separate-vote-rule provision is worded differently from that state‘s single subject provision and because the two provisions are located in different parts of the state Constitution, the court was required to “assume that they have different meanings . . . .” (Id., at p. 56.) Likewise, in the California Constitution, the two provisions (the separate-vote provision and the two versions of the single subject rule) are worded differently from each other and are located in separate parts of the Constitution. (Compare
The state constitutional framework that confronted the court in Armatta is substantially different from ours in a significant way: Whereas under the California Constitution, the separate-vote provision regulates only proposed constitutional amendments submitted by the Legislature (and not those
This reasoning is inapplicable in California, because, as noted above, the California separate-vote provision applies only to constitutional amendments submitted by the Legislature; the people remain free to submit amendments to the Constitution unrestrained by the separate-vote provision and are limited only by the single subject provision. (Wright, supra, 192 Cal. 704, 711–712.) Accordingly, unlike the Oregon (and Montana and Arizona) courts, we cannot draw a distinction between mere legislation and constitutional amendments or conclude that whereas the former is subject to a lenient single subject test, the latter must be subjected to a strict separate-vote inquiry.
Indeed, our case law long ago rejected a corollary of the notion that underlies the Armatta analysis, and as explained below, our past action in doing so makes it especially inappropriate to follow the Armatta approach at the present time. Justice Manuel‘s dissenting opinion in Schmitz v. Younger (1978) 21 Cal.3d 90 [145 Cal.Rptr. 517, 577 P.2d 652] argued that, although our single subject provision for statutes (
No jurisdiction of which we are aware that allows amendment of its state constitution either by legislative submission or voter initiative discriminates in this manner by setting up a higher obstacle for legislative constitutional submissions than for initiative submissions by the voters, and we cannot imagine that doing so was the intent either of the various drafters over the years or of the voters who enacted, reenacted, and amended California‘s separate-vote provision. By contrast, if we follow the majority rule of our sister states and construe our separate-vote provision as requiring no more (and no less) than the constraint effectuated by the single subject rule, we shall avoid creating such an unprecedented and anomalous scheme.
Nor do we find that the history of California‘s separate-vote provision supports a strict test such as the one adopted by Armatta, supra, 959 P.2d 49, or endorsed by the Court of Appeal below. In Cambria, supra, 776 A.2d 754—one of the recent decisions that has followed Armatta—the New Jersey Supreme Court discerned in that state‘s 1844 constitutional debates an intent not only that its separate-vote provision would “encompass” the concept of a single subject rule (id., at p. 761), but also an intent to “requir[e] closer examination of the relationship between the parts of a proposed constitutional amendment than does the single [subject] test.” (Id., at p. 765.) By contrast, we are unaware of any evidence in the relevant debates from the 1878–1879 California constitutional convention, or in any of the provision‘s subsequent
Nor, unlike the decisions of some of the jurisdictions that recently have endorsed a strict construction of other separate-vote provisions, does California case law support such an interpretation. For example, the Idaho Supreme Court decision in IWP, supra, 982 P.2d 358, 362–363, found support for its strict reading of that state‘s separate-vote provision in its 1909 decision in McBee, supra, 100 P. 97. Likewise, the Arizona Supreme Court‘s decision in Clean Elections Institute, supra, 99 P.3d 570, 573–577, found support for a strict interpretation of its separate-vote provision in its 1934 decision in Kerby, supra, 36 P.2d 549. In neither of these minority-rule jurisdictions did the recent determination to embrace a strict test reflect a break with prior cаse law.47 By contrast, we do not find in the sparse California case law concerning
ante, the only case in which this court addressed the provision was our 1923 decision in Wright, supra, 192 Cal. 704—and in that matter we suggested, in dictum, that the provision should not be construed strictly, but instead leniently, to allow changes to several parts of the Constitution if the changes are reasonably germane to each other. (Id., at pp. 712–713.)
We conclude that although the strict construction of the separate-vote provision recently embraced by Oregon and some other jurisdictions may find support in the constitutional language, history, constitutional framework, and case law of those other minority-rule states, the same cannot be said with regard to
Against our determination that the separate-vote provision in essence incorporates the requirements of the single subject rule, the Legislature insists that the delegates to the 1878–1879 constitutional convention affirmatively disclosed a contrary intention—namely, that the separate-vote provision not encompass a limitation tantamount to the single subject provision, even in the latter provision‘s lenient, rather than strict, sense. In support, the Legislature cites the 1878–1879 debates concerning the statutory single subject rule—a provision that already existed in
We do not agree. First, the Legislature‘s brief fails to characterize properly the substance of the 1878–1879 debate concerning the single subject provision. The cited passages disclose that the delegates did not, as a general matter, question the efficacy or propriety of a rule confining legislation to a single subject or to related subjects. Instead, the delegates appear to have accepted and generally endorsed retention оf that rule from the Constitution of 1849.50 The vigorous debate to which the Legislature alludes concerned not the efficacy or propriety of the single subject rule per se, but instead a collateral issue: the severability of the parts of an act that violate the legislative single subject rule. In this regard, Delegate Freeman offered an amendment to the proposed section, adding a clause as follows: ” ‘[B]ut if any subject shall be embraced in any Act which shall not be expressed in its title, said Act shall be void only as to so much thereof as shall not be so expressed. . . .’ ” (2 Willis & Stockton, supra, at p. 796.) The ensuing debate focused upon the propriety of this provision, and upon the general problem of requiring subjects of an act to be expressed in the title of the act.51 The delegates tentatively adopted a version of the proposed severability clause (id., at pp. 798–799) and then, a few weeks later, rejected repeated attempts to strike the severability clause in favor of making an entire act void if any part of it violated the single subject rule. (3 Willis & Stockton, supra, at pp. 1269–1270.) Ultimately, the provision was adopted as proposed by Delegate Freeman. (See ante, fn. 49.) Contrary to the Legislature‘s suggestions, this predominating focus of the debate concerning the legislative single subject provision provides no reason to question the delegates’ understanding of
III
The Legislature does not argue that Resolution 103‘s two provisions—the primary elections provision (amending
IV
As demonstrated by the out-of-state cases discussed above, the normal remedy for violation of the separate-vote provision has been either (1) a preelection order barring submission of the measure to the voters in a single package, or (2) postelection invalidation of a measure that improperly was submitted to the voters in a single package. In the present case, as noted earlier, the Court of Appeal devised an alternative remedy: it rejected, by a two-to-one vote, the assertion of Californians for an Open Primary that Proposition 60 should be stricken from the ballot, and instead issued a peremptory writ of mandate directing the Secretary of State to bifurcate the two provisions and submit them to the voters separately. Also, as noted above, after we granted review in this matter, and in light of the then-impending election and ballot preparation deadlines, we rejected the request of Californians for an Open Primary for a stay, instead ordering the Secretary of State to place Resolution 103 on the November 2004 ballot “in the manner directed by the Court of Appeal“—that is, as Propositions 60 (the primary elections provision) and 60A (the state property/bonds repayment provision). Thereafter the voters at the November 2004 election, while rejecting Proposition 62, enacted both Propositions 60 and 60A.
Californians for an Open Primary observes that the resulting bifurcated provisions that were placed on the ballot proposed two constitutional amendments, neither of which, standing alone, had received the approval of two-thirds of each house of the Legislature as required by the first sentence of the first section of
The Legislature, in its opening brief filed prior to the November 2004 election, also questions the propriety of the Court of Appeal‘s bifurcation remedy, arguing that even though it had “acquiesced in this remedy in order to permit deliberative review in this court,” as a general matter, bifurcation is “highly problematic.” The Legislature asserted: “Even when done by court order, such dissection of a measure adopted by the Legislature is inappropriate absent some express statement by the Legislature that it would prefer this alternative to barring the measure from the ballot altogether.” Subsequently, after the defeat of Proposition 62 and the adoption of both Propositions 60 and 60A, the Legislature modified its position, arguing in its reply brief that assuming Resolution 103 violated the separate-vote provision, “the goal of
We conclude that the Court of Appeal erred in bifurcating the two measures. Nothing in the language or history of
Indeed, allowing bifurcation of a measure that violates the separate-vote provision would permit—if not encourage—logrolling-type manipulations that in turn would frustrate one purpose of the separate-vote provision. If, for example, it were known in advance that bifurcation was a potential and permissible remedy, factions within the Legislature, none of which on its own could garner a two-thirds vote for a particular amendment, might join forces by agreeing to present disparate proposed amendments in a single measure, knowing that a court likely would find a separate-vote violation but thereafter could order the provisions bifurcated and presented separately to
V
Although we conclude that the Court of Appeal erred in directing the Secretary of State to bifurcate the two measures and place them on the ballot, we conclude that under the unusual circumstances of this case, it would be inappropriate to invalidate the two approved measures, each of which, as noted, subsequently was separately approved by the voters after this court, in the face of the then impending election, declined to stay the Court of Appeal‘s bifurcation order. (Cf. Assembly v. Deukmejian (1982) 30 Cal.3d 638, 652, 669 [180 Cal.Rptr. 297, 639 P.2d 939] [refusing, under the “unusual and unique circumstances” there presented, to invalidate redistricting referendum petitions that clearly violated the
The potential for manipulation of the process that we described at the close of part IV, ante, manifestly did not occur here. There is no basis upon which to conclude that any legislator could have, or did, anticipate the Court of Appeal‘s adoption of its novel bifurcation remedy. Indeed, as the briefing in this matter discloses, the Legislature was surprised by, and strenuously objected to, the solution imposed by that court.
In light of the absence of any prior definitive California ruling with regard to either the scope of the separate-vote provision or the remedy for its violation, and in light of the circumstance that the two proposed amendments ultimately were separately submitted to the voters and separately adopted as Propositions 60 and 60A after the electorate was afforded an opportunity to consider the arguments for and against each measure, we do not invalidate those constitutional amendments.
For the reasons discussed above, the judgment of the Court of Appeal is vacated and the matter is remanded to the Court of Appeal with directions to discharge the alternative writ and to deny the request that a peremptory writ issue to invalidate Propositions 60 and 60A. Each party shall bear its own costs in this proceeding.
Kennard, J., Baxter, J., Chin, J., and Corrigan, J., concurred.
WERDEGAR, J., Concurring.—I concur in the judgment remanding the matter to the Court of Appeal with directions to discharge the alternative writ and to deny the request that a peremptory writ issue to invalidate Propositions 60 and 60A. I write separately to express my views concerning the propriety of addressing the validity of the bifurcated propositions postelection. As I shall explain, I believe the question of the validity of the enacted measures is moot, either because the Legislature‘s violation of
I. Procedural irregularity
” ‘[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for [the appellate] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, ’ ” the appeal is moot. (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863 [167 P.2d 725]; accord, e.g., Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 [1 Cal.Rptr.3d 207] [“A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief“].)1 Petitioners in the present case sought “a writ of prohibition in the Court of Appeal, seeking to bar the Secretary of State from placing Proposition 60 on the [November 2, 2004] general election ballot.” (Maj. opn., ante, at p. 740.) The election having been held, such a writ cannot issue. Thus the only relief for which petitioners pleaded, exclusion of Proposition 60 from the ballot, can no longer be granted, and their case is moot.
Our courts have repeatedly followed the reasoning of Lenahan, applying it to referenda as well as recalls and to writ petitions as well as actions for injunctive relief. Where the plaintiffs have challenged only the procedures leading to the recall election or to the placement of the referendum measure on the election ballot, and sought only to prevent the election or remove the measure from the ballot, the election‘s actual occurrence has been considered to render the case moot. (See Mapstead v. Anchundo (1998) 63 Cal.App.4th 246, 273–277 [73 Cal.Rptr.2d 602]; Chase v. Brooks (1986) 187 Cal.App.3d 657, 661–662 [232 Cal.Rptr. 65]; Long v. Hultberg (1972) 27 Cal.App.3d 606, 608–609 [103 Cal.Rptr. 19].) And, as this court recently recognized in Costa v. Superior Court (2006) 37 Cal.4th 986 [39 Cal.Rptr.3d 470, 128 P.3d 675], the principle is equally applicable to initiative measures. Discussing challenges that attempt to keep a measure off the ballot on the basis of a procedural defect “hav[ing] no effect on the material that is before the voters or on the fairness or accuracy of the election result,” the Costa majority, citing Lenahan and its progeny, explained that such procedural challenges are properly decided before the election, “because after the election the procedural claim may well be considered moot.” (Id., at pp. 1006–1007; see also id., at pp. 1038–1039 (conc. & dis. opn. of Werdegar, J.).) No reason is apparent why this principle, applicable to recall elections, referenda and initiative measures, should not also apply to a legislatively proposed constitutional amendment.
The critical challenge to Propositions 60 and 60A in this court—petitioners’ contention that the Court of Appeal erred in bifurcating thе measures as a remedy for the Legislature‘s separate-vote violation—is seemingly a purely procedural one that does not affect the material before the voters or the fairness of the election. As the majority opinion explains, bifurcation was an improper remedy because “neither of [the bifurcated measures], standing alone, had received the approval of two-thirds of each house of the
II. Substantive invalidity
Contrary to the foregoing, the majority denies the case is moot. Whether the majority believes the violation in this case does or could affect the substantive validity of Propositions 60 and 60A is unclear. But while I agree postelection invalidation of a measure is appropriate when the challenge goes to its substantive validity (Costa v. Superior Court, supra, 37 Cal.4th at pp. 1005–1006), in this case even a substantive challenge would not be justiciable postelection because petitioners did not plead for invalidation. The majority correctly observes petitioners have requested, in their postelection brief, that this court declare Propositions 60 and 60A invalid on the ground that invalidation is the appropriate remedy for the Legislature‘s violation of
While denying the case is moot, the majority concludes invalidation of the two approved measures would be “inappropriate.” (Maj. opn., ante, at p. 782.) What legal rule, if any, the majority articulates on this point—the only part of its opinion actually necessary to the judgment—is unclear, but I agree it would be “inappropriate“—indeed, erroneous—to grant petitioners on review relief beyond and different from that for which they pleaded.
Our legal inability to provide the relief actually pleaded for, a writ of prohibition against placing the disputed measures on the ballot, renders the action moot under Lenahan and its progeny. Under our previously announced principles of justiciability, the case is moot because “the controversy which the plaintiffs attempted to raise by the filing of their [writ petition] has, by reason of the subsequent election, faded into insubstantiality.” (Lenahan, supra, 14 Cal.2d at p. 134.)
III. Conclusion
We may proceed to decide the issues in a moot case where those issues are ” ‘of continuing public interest and are likely to recur.’ ” (Cadence DesignSystems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 218, fn. 2 [127 Cal.Rptr.2d 169, 57 P.3d 647]; People v. Eubanks (1996) 14 Cal.4th 580, 584, fn. 2 [59 Cal.Rptr.2d 200, 927 P.2d 310].) I would, however, use this power sparingly in election cases; the court should not, by deferring decision on procedural challenges to ballot measures until after the election, avoid its duty to decide such election law disputes when effective relief can still be grantеd. As challenges to the procedures by which a measure is placed on the ballot will generally become moot after the election even if the measure is approved, the court should, whenever possible, decide such challenges before the election.
MORENO, J., Concurring.—I concur in the majority‘s result, but would approach this case somewhat differently, explaining why Senate Constitutional Amendment No. 18 of the 2003–2004 Regular Session (Sen. Const. Amend. No. 18, Stats. 2004 (2003–2004 Reg. Sess.) res. ch. 103; hereafter Resolution 103) is not a partial constitutional revision, and, therefore, is not exempt from the separate-vote requirement. In doing so, I hope to clarify the meaning of
As recounted by the majority, prior to 1962, constitutional revisions, which had been characterized as “far reaching and multifarious” constitutional changes (McFadden v. Jordan (1948) 32 Cal.2d 330, 332 [196 P.2d 787]), could be made only by convening a constitutional convention. In 1962,
On its face, the language of this provision is clear; each amendment to the Constitution must be voted on separately, but no such requirement applies to revisions of the Constitution. The application of this language, however, is problematic, because of the difficulty in distinguishing between multiple constitutional amendments, which must be voted on separately, and a constitutional revision, which may be approved in a single vote.
The California Constitution Revision Commission, formed shortly after the passage of Proposition 7, commented that “the Legislature, it seems, could easily get around the [separate-vote requirement] by the means of classifying the proposal as a revision. Consequently the provision as a limitation on the
From the above history, two things can be fairly deduced: the Legislature must have had some reason for retaining the separate-vote requirement and must have had some reason for applying that requirement to amendments but not revisions. What were those reasons? Or to ask the question another way, within the context of this case, is there anything to prevent the Legislature from combining amendments on two unrelated subjects into a single initiative and designating it as a “partial revision” exempt from the separate-vote requirement? If the answer is negative, then this case is quite simple. The proper remedy would have been, as the Legislature argued before the Court of Appeal, not the bifurcation of the two amendments found in the original Proposition 60, but rather the relabeling of that proposition as a partial constitutional revision.
One possible answer to the above questions is to maintain that there is no difference between two or more amendments and a revision other than the label, but the label itself is significant. This position is suggested by the majority‘s observation, based on the record of failed constitutional revisions in 1968 and 1970, that the electorate was apparently reluctant “to adopt multisubject revisions titled as such . . . .” (Maj. opn., ante, at p. 757.) The term “revision,” so the argument would go, puts voters on notice that what they are voting on is a far-reaching constitutional change or changes. Thus, the “revision” label is likely to cause voters to scrutinize the measure more closely than they would an amendment, which would obviate the need for a separate-vote requirement designed to prevent voter confusion.
The problem with this argument is that it is based on an unfounded assumption. There is no indication that people, other than attorneys and others who realize that “revision” is a term of art, would be inclined to scrutinize an initiative more closely simply because it is termed a “revision” rather than an “amendment.” Indeed, the fact that the word “revision” is commonly used with the modifying adjectives “major” or “minor” indicates that the word by itself does not connote a far-reaching or consequential change. The failure of numerous proposed revisions at the ballot box was more likely the result of voters not wanting to vote for numerous constitutional changes in a block rather than because of the “revision” label.
The problem with this conventional approach is that it does not make a great deal of sense in the context of legislative proposed revisions. When labeling a voter initiative or part thereof as a “revision” has the consequence of invalidating the initiative because the revision could only have been proposed by a constitutional convention, then it is appropriate to set the bar for what constitutes a revision very high in order to give the electorate considerable scope to amend the Constitution. Because the Legislature now adopts constitutional amendments and constitutional revisions by the identical method, however, there would appear to be no purpose in so strictly confining the Legislature‘s ability to label a proposal a constitutional “revision.” Indeed, strict limitations on the Legislature‘s ability may frustrate the purpose of legislatively proposed revisions, discussed at greater length below, of
In order to fathom the reason for retaining the separate-vote requirement, while not applying it to revisions, it is necessary first to understand the purposes behind the separate-vote requirement. As the majority states, the separate-vote requirement shares with the single subject rule the “purpose of preventing voter confusion and ‘logrolling‘—that is, the practice of combining in one measure two or more unrelated provisions, thereby forcing a single vote on matters that properly should be voted upon separately.” (Maj. opn., ante, at p. 765.) These are two distinct rationales. Voter confusion occurs when, for example, numerous provisions are included in a single ballot measure, thereby making it unclear that voters actually are aware of all the provisions they are voting on. (See Manduley v. Superior Court (2002) 27 Cal.4th 537, 584, 589–589 [117 Cal.Rptr.2d 168, 41 P.3d 3] (conc. opn. of Moreno, J.).) With logrolling, voters may very well know what they are voting for, but are compelled to vote for a measure they might not otherwise support in order to pass an unrelated measure that is important to them. (See Gabbert v. C., R. I. & P. Ry. Co. (1902) 171 Mo. 84 [70 S.W. 891, 897] [defining logrolling as combining in one initiative ” ‘subjects diverse and antagonistic in their nature, in order to combine in its support members who were in favor of a particular measure’ “, italics omitted].)
To understand why the separate-vote requirement would apply to amendments and not revisions, we must also better discern the purpose of a legislatively proposed constitutional revision. The argument in favor of Proposition 7, authorizing such revisions for the first time, stated: “Most state legislatures are free to propose to the people extensive and significant constitutional changes, whether drawn up by an expert commission or a legislative committee. In the past decade alone ten states, аmong them New York, Pennsylvania and Texas, have approached constitutional improvement by this method. Short of a constitutional convention, California has no way to make coordinated broad changes to renovate outdated sections and articles in its Constitution.” (Ballot Pamp., Gen. Elec. (Nov. 6, 1962) argument in favor of Prop. 7, p. 13.)
A legislatively proposed revision is therefore a means of “constitutional improvement,” designed to “make coordinated broad changes to renovate outdated sections and articles [in the] Constitution.” (Ballot Pamp., Gen. Elec. (Nov. 6, 1962) argument in favor of Prop. 7, p. 13.) Behind Proposition 7 there appears to have been the perception that the California Constitution was out of date and in need of major renovations. Making those renovations by means of piecemeal amendments, each subject to the separate-vote requirement, would be time consuming and inefficient. Indeed, the report by
Given the above purpose, it is easy to understand why the separate-vote requirement would not apply to revisions. That requirement would defeat the very purpose behind a legislatively proposed constitutional revision—to permit the California Constitution to be efficiently overhauled by allowing the Legislature to put before voters packages of unrelated amendments. Although combining such unrelated amendments into one initiative may result in some risk of voter confusion, it appears evident that those enacting Proposition 7 believed the benefits of legislatively proposed revisions outweighed those risks.
Does that mean that by not applying the separate-vote requirement to legislative constitutional revisions, those who enacted Proposition 7 also intended to condone logrolling by the Legislature in the revision process? I do not believe so. A constitutional revision, by its very nature and purpose—systematic, comprehensive constitutional renovation and reform—appears to be inherently contrary to the practice of logrolling motivated by political expediency.
Therefore, although we cannot claim to comprehensively define the meaning of “constitutional revision,” we can say with some assurance what it is not. It does not include an initiative consisting of multiple constitutional changes joined together for purposes of logrolling. And although we cannot ever know precisely why the Legislature of almost 40 years ago decided to retain the separate-vote requirement but not apply it to revisions, we can at least understand post hoc why that decision was reasonable: It allowed the Legislаture considerable freedom in proposing constitutional reform packages in the form of revisions, while still banning the practice of log-rolling—explicitly in the case of constitutional amendments, implicitly in the case of constitutional revisions, whose very purpose and pedigree are inimical to such a practice.
Of course, the legislative purpose behind a proposed revision may not always be evident. But as suggested by the history recounted in the majority
Turning to the present case, I will assume without deciding that a legislative initiative that proposes changes in only two subjects could under some circumstances be termed a “partial revision” exempt from the separate-vote requirement. Nonetheless, I conclude that Resolution 103 is not a bona fide partial revision because its evident purpose was logrolling. It was not the product of a study and deliberation by a commission or committee. Indeed, the Legislature does not dispute Californians for an Open Primary‘s characterization that Resolution 103 was rushed through the Legislature in response to Proposition 62, an open primary initiative. Resolution 103 offered changes on two unrelated subjects, one of which was the primary object of its proponents—the classic logrolling situation. (See, e.g., Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1160 [90 Cal.Rptr.2d 810, 988 P.2d 1089].) The Legislature has not claimed otherwise. Therefore, I would conclude that Resolution 103 could not have been redesignated as a partial revision.
I have been critical of what in my view is an overly lenient interpretation of the single subject rule as applied to voter initiatives. (See Manduley v. Superior Court, supra, 27 Cal.4th 537, 585–588 (conc. opn. of Moreno, J.).) Because the Legislature has the freedom to propose constitutional revisions unconstrained by the separate-vote requirement, there is good reason to suppose, as suggested by the above discussion, that the separate-vote requirement should be interpreted more leniently than the single subjeсt rule. But even so, that freedom has its limits, which the Legislature crossed in the present case.
Furthermore, I agree with the majority that bifurcation of the two measures encompassed by Resolution 103 was improper. Nonetheless, given the unique circumstances of this case, I also agree with the majority that invalidation of those measures at this point would be inappropriate.
Notes
The second portion of the order, signed by two justices, read as follows: “Like the majority, we neither endorse nor reject the Court of Appeal‘s view of the proper interpretation of the ‘separate vote’ provision of article XVIII, section 1, of the California Constitution, or that court‘s determination regarding the appropriate remedy for a violation of that constitutional provision. We also concur in the majority‘s decision to grant the petitions for review. We would not, however, direct the Secretary of State to place Senate Constitutional Amendment No. 18 of the 2003-04 Regular Session [that is, Resolution 103] on the ballot for the November 2004 election as Propositions 60 and 60A, in the manner directed by the Court of Appeal.” This portion of the order was signed by Justices Werdegar and Brown.
The Supreme Court of Pennsylvania, in Pennsylvania Prison Soc., supra, 776 A.2d 971, found a violation of that state‘s separate-vote provision with regard to a legislative constitutional amendment measure that presented to the voters in a single proposition provisions (1) restructuring the state board of pardons to change its composition and require decisions to be unanimous, and (2) requiring a majority rather than two-thirds vote of the state senate to confirm the governor‘s appointees to that board. (Id., at pp. 981-982.) The lead opinion, however, found it unnecessary, in the “unusual circumstances” presented (id., at p. 982), to declare the measure void, because, it determined, the measure actually made no substantive change to the state senate‘s confirmation process. (Id., at pp. 981-984; see also Bergdoll, supra, 731 A.2d 1261 [invalidating, under the state separate-vote provision, a legislative constitutional amendment measure that presented to the voters in a single proposition provisions (1) eliminating a “face-to-face” requirement under the state‘s confrontation clause, and (2) authorizing the legislature to enact laws regarding the manner in which children may testify in criminal proceedings].)
The Supreme Court of Idaho—consistently with its earlier minority-view decision in McBee, supra, 100 P. 97 (adopting a strict rule under which, if proposed provisions can stand alone, they must be presented alone)—invalidated, under that state‘s separate-vote provision, a legislative constitutional amendment that would have (1) allowed proceeds from the sale of school endowment lands to be used to acquire other lands, and (2) provided that auctions should take place regarding only sales (and not, alternatively, leases or sales) of such lands. The court concluded that these two provisions were ” ‘essentially unrelated’ ” to each other. (IWP, supra, 982 P.2d 358, 363.)
Similarly, the Supreme Court of Arizona—again, consistently with its own earlier minority-view dеcision in Kerby, supra, 36 P.2d 549 (adopting a strict rule under which proposed provisions may be presented in a single package only if they “should stand or fall as a whole“)—invalidated, under that state‘s separate-vote provision, an initiative constitutional amendment that would have (1) eliminated public funding of statewide political campaigns, and (2) diverted all money then dedicated to the Arizona Clean Elections Commission into the state‘s general fund, thus making the commission‘s funding for its other responsibilities (beyond public campaign financing) dependent upon grants from the state legislature. (Clean Elections Institute, supra, 99 P.3d 570, 575-577.)
Only in New Jersey has a high court that purports to embrace the Armatta test concluded that a challenged measure meets the requirements of the separate-vote provision. In Cambria, supra, 776 A.2d 754, that state‘s high court upheld, against a separate-vote provision challenge, a legislative constitutional amendment measure dedicating two new sources of revenue to the state‘s Transportation Trust Fund: (1) revenue from a petroleum products tax, and (2) revenue from a general sales and use tax on new motor vehicles. The court in Cambria found these two provisions “closely related” to each other. (Id., at p. 765.)